P.C Verma and Rajesh Chandra, JJ.:— By means of this petition the petitioners have prayed for writ of certiorari quashing the impugned orders dated 25.8.1981, 11.5.2006 and 29.9.2006 passed by the respondents and have further prayed that respondents be restrained from dispossession the petitioners from the land in dispute.
2. Learned Counsel for the petitioners submits that petitioners are in actual physical possession of the plot in question and the respondent have not taken actual physical possession of the plot in question.
3. Having heard the arguments advanced by learned Counsel for the parties and considering the The Urban Land (Ceiling and Regulation) Act, 1976 repealed by The Urban Land (Ceiling and Regulation) Repeal Act, 1999 (15 of 1999), (herein after referred to as a Act). Section 3 of the Act reads as under:—
“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. A perusal of Clause (a) of sub-section (2) of section 3 clearly provides, where the possession of the land has not been taken over the said land shall not vest in the State despite the proceedings having drawn. Here the possession will mean the actual physical possession. The categorical statement has been made in all the writ petitions that the possession has not been taken over by the State till date and petitioners are in possession. In few of the writ petition counter has been filed in which this fact has not been denied and in some cases in counter affidavit it has been stated that possession has been taken over but it has not been substantiated by evidence whether actual physical possession has been taken over or not. There is no receipt obtained by the Collector concerned from the owner of the land handing over the possession. In the case of State of Tamil Nadu v. Mahalakshmi Ammal . 1996 7 SCC 269., has categorically held that “possession of the acquired land would be taken only by way of memorandum, panchnama, which is a legally accepted norm.” There is no such document with counter affidavit filed by State of U.P on record.
5. Possession on paper is a symbolic possession and word ‘possession’ used in Clause (a) of sub-section (2) of section 3 of the Act mean actual physical possession and not the symbolic possession.
6. After the repealing of the Urban Land (Ceiling and Regulation) Act, 1976 by Act No. 15 of 1999 Urban Land (Ceiling and Regulation Repeal) Act, 1999 the petitioners are entitled to the benefit of section 3 of the Act No. 15 of 1999. The petitioners land shall not be treated to have been declared as vacant land under the repeal Act.
7. For the reasons recorded above the instant writ petition is allowed. No order as to costs.
Petition Allowed.