Kashi Nath Pandey, J.;-

1. We have heard Shri Raj Karan Yadav, learned counsel for the petitioner. Learned Standing Counsel appears for the respondents. The pleadings have been exchanged.

2. The petitioner's grand father Shri Nankoo son of Shri Tejai resident of Pure Surdas, Post Jhunsi, Tehsil Phoolpur, District Allahabad filed a return under Section 6 (1) of the Urban Land (Ceiling and Regulation) Act, 1976 (in short the Act). After a survey, a notice under Section 8 (3), with a statement prescribed form was issued on 20.3.1982, and was served on him on 05.4.1982. He did not file any objection and thus an order was passed under Section 8 (4) on 13.9.1982, declaring 16360.10 square meters in his hands as surplus land.

3. Learned counsel for the petitioner submits that notices were never served upon the land holder at any stage from 1976 till date, and thus the whole proceedings are illegal and arbitrary. Though Shri Nankoo had filed a return, an illegal and arbitrary order was passed without hearing him, under Section 8 (4) of the Act. Shri Nankoo died more than twenty years' ago leaving behind Shambhu Nath, Lalji, Prabhu as his sons and legal heirs. Shri Shambhu Nath also died leaving behind the petitioner as his son and legal heir. The petitioner has an interest in the land declared as surplus. The respondents have without any notice or information to the petitioner, took further proceedings for possession. A notice under Section 10 (5) was issued on 23.6.1996, but was never served on him.

4. In the counter affidavit, it is stated that since the petitioner's grand father Shri Nankoo did not file any objection to the notice under Section 8 (3), and the statement served upon him, the order under Section 8 (4) was made absolute on 13.9.1982 declaring 16360.10 square meters as surplus land. A final statement was prepared under Section 9 and that the notification under Section 10 (1) and 10 (3) of the Act was published in the Gazette of U.P. on 4.11.1983 and 10.2.1996 respectively in accordance with the Rules. A notice under Section 10 (5) was issued on 24.4.1996 to the petitioner's grand father to hand over possession. After the publication of notice under Section 10 (3) of the Act on 10.2.1996, the surplus land has vested in State free from all encumbrances. In para-7 of the counter affidavit filed by Shri Devendra Singh, Assistant Engineer, Urban Land Ceiling, Allahabad, it is stated that after the publication of notification under Section 10 (3) on 10.2.1996, the land had vested in the State free from all encumbrances. A notice was issued under Section 10 (5) on 24.4.1996 to hand over possession, and consequently the land is in possession of the State. The entire proceedings were held and concluded prior to the enforcement of Urban Land (Ceiling and Regulation) Repeal Act, 1999, which came into force in the State of UP on 18.3.1999.

5. It is submitted by Shri Raj Karan Yadav, that under Section 3 of the Repeal Act the vesting of the vacant land is not sufficient. Under sub-section (3) of Section 10 of the Act the possession of the land must be taken by the State or any person authorised by the State Government failing which the entire proceeding would abate under the Repeal Act, 1999. Section 3 and 4 of the Repeal Act, 1999 are quoted as below:-

"3. Saving.- (1) The repeal of the principal Act shall not affect-

(a) the vesting of any vacant land under sub-section (3) of Section 10, possession of which has been taken over the State Government or any person duly authorised by the State Government in this behalf or by the competent authority;

(b) the validity of any order granting exemption under sub-section (1) of Section 20 or any action taken thereunder, notwithstanding any judgment of any court to the contrary;

(c) any payment made to the State Government as a condition for granting exemption under sub-section (1) of Section 20.

(2) Where-

(a) any land is deemed to have vested in the State Government under sub-section (3) of Section 10 of the principal Act but possession of which has not been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority; and

(b) any amount has been paid by the State Government with respect to such land

then, such land shall not be restored unless the amount paid, if any, has been refunded to the State Government.

4. Abatement of legal proceedings.- All proceedings relating to any order made or purported to be made under the principal Act pending immediately before the commencement of this Act, before any court, tribunal or other authority shall abate:

Provided that this section shall not apply to the proceedings relating to sections 11, 12, 13 and 14 of the principal Act in so far as such proceedings are relatable to the land, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority."

Learned counsel for the petitioner has relied upon judgments of the Supreme Court and the High Courts in Pt. Madan Swaroop Shrotiya Public Charitable Trust vs. State of U.P. & ors JT 2000 (3) SC 391; Kailash and another vs. State of UP and ors 2005 (61) ALR 383; State of UP vs. Devendra Nath & another Civil Misc. Writ petition No. 76070 of 2005 decided on 15.12.2005; Babu Ram and others vs. State of UP and others 2009 (75) ALR 873; Ram Chandra Pandey vs. State of UP and others 2010 (82) ALR 136 and M/s Star Paper Mills Ltd. vs. State of UP and others 2011 (1) CRC 93. In all these cases, it was held following leading judgment in Pt. Madan Swaroop Shrotiya Public Charitable Trust (supra), that unless actual physical possession was taken for which proceedings are provided under Section 10 (5) and 10 (6) of the Act, and there is proof of taking over possession, the proceedings will abate under Section 3 of the Repeal Act, 1999.

7. Learned Standing Counsel on the other hand submits that once the land has vested in the State and that the proceeding for taking over possession were initiated, with a notice under Section 10 (5) of the Act, there will be a presumption of official acts of taking over possession. She has relied upon judgments in Smt. Sulochana Chandrakant Galande vs. Pune Municipal Transport & ors Civil Appeal No. 492 of 2007 decided on August 3, 2010 in which the Supreme Court held in paras 31, 32, 33, 34 as follows:-

"31. Undoubtedly, the Act, 1976, stood repealed by the Act 1999. However, it has no bearing on this case for the reason that proceeding pending in any Court relating to the Act, 1976, stood abated, provided the possession of the land had not been taken from the owner. Therefore, in a case, where the possession has been taken, the repeal of the Act would not confer any benefit on the owner of the land. (Vide Pt. Madan Swaroop Shrotia Public Charitable Trust vs. State of UP (2000) 6 SCC 325, Ghasitey Lal Sahu vs. Competent Authority (2004) 13 SCC 452), and Mukarram Ali Khan vs. State of UP (2007) 11 SCC 90)

32. From the above, the following factual situation emerges:

(I) The land was declared surplus under the Act, 1976, and acquired in 1979.

(II) Possession of the land was taken in 1979 by the State of Maharashtra and it was handed over to PMT for construction of the residential quarters for the staff.

(III) Appellant has not stated anywhere in the pleadings as to whether any amount/compensation as provided under the Act, 1976, had been received/accepted by her.

(IV) Appellant, for the reason best known to her, did not file appeal before the Land Tribunal, though Act, 1976 provides for two appeals.

(V) Appellant woke up from deep-slumber only after five years of the judgment of this Court in Atia Mohammadi Begum (supra) and filed revision under Section 34 of the Act, 1976, in 1998.

(VI) The State Government allowed the revision without taking into consideration the point of delay; rather it relied upon its own circulars.

(VII) The State Government did not consider the consequences and particularly the issue of dis- possession of the appellant from the land in dispute in 1978 itself.

(VIII) The judgment in Atia Mohammadi Begum (supra) has been over-ruled by this Court in N. Audikesava Reddy (supra).

33. Therefore, the law, as exists today, is that the land in dispute could be subjected to the provisions of the Act, 1976, with effect from 17.5.1976, i.e. the date on which the suit land came within the limits of the Municipal Corporation. The Act stood repealed in 1999, but the proceedings pending in any court would stand abated provided the tenure-holder was in possession of the land on the date of the commencement of the Act 1999. The High Court has taken note of the fact that the appellant's revision had been entertained only on the basis of the judgment of this Court in Atia Mohammadi Begum (supra), which stood over-ruled by the subsequent judgment in N. Audikesava Reddy (supra)."

8. Learned Standing Counsel has also relied upon a judgment of this Court in Mangal Sen v. State of U.P. & ors 2011 (2) ALJ 752 in which it was held that once the possession has been taken and Dakhalnama (possession memo), was signed by a witness and authorised officer concerned, the proceeding of taking over possession had come to an end, after which the Repeal Act will not benefit the petitioner.

9. In all the aforesaid cases, the Courts have held that after final orders are passed under Section 8 (4) and a declaration is issued under Section 10 (3) vesting the surplus land in the State, the Repeal Act will not apply, if the possession of the land is taken over in his behalf or by a competent authority. In order to prove taking over possession prior to 18.3.1999, it is incumbent upon the State to establish in the Court that the possession was taken in accordance with the law, namely, that the person, in whose hand the land is declared surplus, has handed over possession in response to the notice under Section 10 (5) of the Act or where the possession was not handed over, a Dakhalnama (possession memo) has been prepared, signed by a witness and authorised officer concerned in proceedings under Section 10 (6) of the Act.

10. The possession of the land is taken in proceedings under sub-sections (5) and (6) of Section 10 of the Act of which the entries are made in a register in Form No. U.L.C.-III, and possession in column-9 of Form No. U.L.C.-I. The competent authority is required in token of the verification of the entries, to put signatures in column-2 of Form No. U.L.C.-I and column-10 of Form-U.L.C.-III.

11. In Smt. Sulochana Chandrakant Galande(supra) the Supreme Court, after considering Pt. Madan Swaroop Shrotiya Public Charitable Trust (supra); Ghasitey Lal Sahu and anr vs. Competent Authority, (2004) 13 SCC 452; and Mukarram Ali Khan vs. State of Uttar Pradesh & ors (2007) 11 SCC 90, held in para-32 as quoted above, that in the facts of that case, the land was declared as surplus in 1976, and acquired in 1979, the appellant had not stated anywhere in the pleadings as to whether any amount/compensation was received or accepted by her and whether any appeal was filed. The Supreme Court held that the land in dispute will be subjected to the provisions of the Urban Ceiling Act w.e.f. 17.5.1976, i.e. the date on which the suit land had come within the limits of Municipal Corporation. The proceedings did not abate as the High Court had taken note of the fact, that the appellant's revision had been entertained only on the basis of the judgment in Atia Mohammadi Begum, which had stood over-ruled by the subsequent judgment in N. Audikesava Reddy's case. The Supreme Court observed that in that case the possession of the land was taken and handed over to Pune Municipal Corporation, for establishing a bus depot in the year 1988. The bus depot was constructed on the part of the suit land. However, the appellant preferred a revision under Section 34 of the Act on 06.4.1998 contending that the land ought not to have been acquired under the Act, 1976, on the ground that the suit land was not within the urban area. It was held that the suit land had fallen into urban area. There was no question of dispute regarding taking over possession inasmuch as the land was admittedly taken in possession by the State and handed over to Pune Municipal Corporation in the years 1978-1979.

12. In Mangal Sen (supra) a Division Bench of this Court recorded finding in para-25 regarding possession as follows:-

"25. From a perusal of the record it appears that after due Notification under Section 10(1) dated 6.4.1985 and declaration under Section 10(3) on 6.11.1985 a notice for possession under Section 10(5) of the Act was issued on 20.2.1986 and an authorization to the Tehsildar by the competent authority was also given in this regard on 17.7.1985 itself. So the procedure prescribed under section 10 of the principal act has been fully complied with. The possession has been taken without any resistance by the petitioner, obviously under the cover of Dakhalnama (possession memo) signed by a witness and authorized officer concerned on 30.1.1990."

13. In this case as found above from the pleadings there is no assertion by the State, that the possession was actually handed over by petitioner's grand father in pursuance to the notice under Section 10 (5) of the Act, or that any proceedings were taken under Section 10 (6) of the Act for taking over possession. There are no pleadings of service of the notice under Section 10 (5) and preparation of Dakhalnama (possession memo) and the entries in Form No. C.L.C. III (Register for land of which possession has been taken under Section 10 (5) or 10 (6)), in proof of taking over physical possession of the surplus land.

14. In absence of any pleadings or assertion by the State that the possession of the land was given in response to Section 10 (5) of the Act, or that proceedings under Section 10 (6) was taken and any Dakhalnama (possession memo) was prepared and entries were made in Form No. U.L.C. III, we find that the petitioner is still in possession of the land.

15. In the facts of the case, we are of the view that on the enforcement of Urban Land (Ceiling and Regulation) Repeal Act, 1999, the proceedings undertaken under Urban Land (Ceiling and Regulation) Act, 1976 in respect of declaration of surplus land in the hands of petitioner's grand father of which a share has been inherited by the petitioner, through his father, have abated under the Repeal Act, 1999.

16. The writ petition is allowed. A writ of mandamus is issued directing the respondents not to take possession of the disputed land in respect of surplus land in Case No. K-255/1976 (State vs. Nankoo). The revenue record will be corrected accordingly treating the proceedings under Urban Land (Ceiling and Regulation) Act, 1976 initiated against late Shri Nankoo son of Tejai, to have abated under the Urban Land (Ceiling and Regulation) Repeal Act, 1999.