- (1.) HEARD learned counsel for the petitioners, learned counsel for respondent no. 3 and learned Standing Counsel. Counter and rejoinder affidavits have been exchanged and with the consent of learned counsel for the parties, the writ petition is being finally decided. By this writ petition, the petitioners has prayed for mandamus commanding the respondents to abate the proceedings under the Urban Land (Ceiling and Regulation) Act, 1976 and not to mutate the name of State.
(2.) PETITIONERS ' case in the writ petition is that the proceedings under the Urban Land (Ceiling and Regulation) Act, 1976 were initiated against the tenure holder Jagbeer. The tenure holder filed his return and final order under section 8(4) of the Act was passed declaring 11430.08 square meter land as surplus ceiling land. Petitioners' case is that the consolidation proceedings intervened, it has been further stated that petitioners being successor of late Jagbeer are in possession of the land and the physical possession of land was never taken by the State and no proceedings under section 10(6) of the Act were undertaken. It has been submitted that in view of the Urban Land (Ceiling and Regulation) Repeal Act, 1999, the petitioners are entitled to be continued with the possession of the land. It has been further submitted that petitioners' name are still continuing in revenue records. Counter affidavit has been filed by the State in which copy of the order dated 8.12.1981 under section 8(4) of the Act has been brought on record. There are no material brought with the counter affidavit regarding taking physical possession of surplus land nor any proceedings under section 10(6) has been brought on record. It is stated that notice under section 10(5) was issued but there was no material on record that the land was either surrendered by the tenure holder or any proceedings were undertaken under section 10(6). Learned counsel for the petitioner has placed reliance on a Division Bench judgement of this Court dated 8.10.2012 in writ petition no. 24378 of 2011 (Mahaveer Vs. State of U.P.). The Division Bench in the aforesaid case after considering the similar situation where no proceedings under section 10(6) were undertaken has laid down following:- "Learned counsel for the petitioner has rightly relied upon the judgment of Apex Court in Vinayak Kashinath Shilkar v. Deputy Collector and Competent Authority and others, 2012 (2) AWC 2123 (SC) and a Division Bench judgment of this Court in Chandrma v. State of U.P. and others, 2011 (5) ADJ 638 (DB). In Chandrma (supra) this Court has laid down that there being no proof of taking of physical possession of the surplus land in accordance with the procedure prescribed, the petitioner was entitled for issue of a writ of mandamus. It is useful to quote paragraphs 13 to 16 as under: - "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."
(3.) IN the present case, there is no material to prove that the actual physical possession was taken by the State in accordance with the procedure prescribed under the Act, the petitioner is clearly entitled for the relief prayed in the writ petition. We further direct respondent no.1 to correct the revenue record, accordingly." The present case is fully covered by the aforesaid judgement of the Division Bench; There is no material to prove that actual physical possession was taken of the surplus land, petitioners are entitled for the relief in the writ petition. The writ petition is allowed.;