Ashwani Kumar Mishra, J. - (1.) THE Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as 'Act of 1976') was repealed by section 2 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as 'Repeal Act of 1999') and was adopted in the State of U.P. w.e.f. 18.3.1999. The Repeal Act 1999 contains a savings clause in section 3, which reads as under: - "Savings 3. (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 by 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 subsection (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."
(2.) DISPUTE arose with regard to interpretation and true import of the savings clause. The question has been answered in a series of judgment of the Apex Court starting from Pt. Mohan Swaroop Shrotiya Public Charitable Trust v. State of U.P. [ : (2000) 6 SCC 325], Ghasitey Lal Sahu v. Competent Authority [(2004) 13 SCC 452], Mukarram Ali Khan v. State of U.P. [ : (2007) 11 SCC 90], Vinayak Kashinath Shilkar v. Collector and Competent Authority [ : (2012) 4 SCC 718] and lastly in State of U.P. v. Hari Ram [ : (2013) 4 SCC 280], wherein the provisions of the Principal Act and also the Repeal Act were examined and it was held as under in para 41 & 42 of the judgment: - "41. Let us now examine the effect of Section 3 of the Repeal Act 15 of 1999 on sub -section (3) to Section 10 of the Act. The Repeal Act 1999 has expressly repealed the Act 33 of 1976. The Object and Reasons of the Repeal Act has already been referred to in the earlier part of this Judgment. Repeal Act has, however, retained a saving clause. The question whether a right has been acquired or liability incurred under a statute before it is repealed will in each case depend on the construction of the statute and the facts of the particular case. 42. The mere vesting of the land under sub -section (3) of Section 10 would not confer any right on the State Government to have de facto possession of the vacant land unless there has been a voluntary surrender of vacant land before 18.3.1999. State has to establish that there has been a voluntary surrender of vacant land or surrender and delivery of peaceful possession under sub -section (5) of Section 10 or forceful dispossession under sub -section (6) of Section 10. On failure to establish any of those situations, the land owner or holder can claim the benefit of Section 3 of the Repeal Act. The State Government in this appeal could not establish any of those situations and hence the High Court is right in holding that the respondent is entitled to get the benefit of Section 3 of the Repeal Act." The petitioners in the first writ petition no. 16603 of 2013 (Lalla and others v. State of U.P. and others) had previously filed a writ petition no. 33151 of 2002 seeking benefit of the Repeal Act 1999. Their writ petition was allowed on 2.5.2005 in terms of the order passed in Chabi Nath v. State of U.P. [ : 2005 (59) ALR 413]. The order dated 2.5.2005 in writ petition no. 33151 of 2002 reads as under: - "Hon'ble A.K. Yog, J. Hon'ble B.B. Agarwal, J. Learned counsels for the parties at the bar state that present writ petition is squarely covered by the ratio discerning from the judgment and order dated 17.3.2005 passed by the this Bench in writ petition no. 6354 of 2003 -Chabi Nath S/o Sarju Prasad Versus State of U.P. and others. Present petition is, therefore, decided on the same terms and conditions as passed in aforesaid judgment. It is, however, made clear that possession or interest of any third person/ authority who is not party to the writ petition, if any, shall not be prejudiced. Writ petition is allowed with the above observation. No order as to costs. Dated: 02.05.2005 SS" This Court had examined the scope of savings clause in Chabi Nath (supra) and following proposition was laid down in para 15 to 21 of the judgment, which are reproduced: - "15. From the expressions used in section 10(5) and 10(6) of the Act, it is clear that mere vesting of title with respect to land declared surplus under the Act (without) de -facto possession being taken is of no consequence. 16. Consequently, even if an entry is made revenue records, in favour of State, it is inconsequential so far as the applicability of Section 3 of Repealing Act is concerned. 17. The view taken by us and the interpretation of section 3 of the repealing Act (as noted above) is fully supported in view of section 11 of the Act. 18. Section 11 refers to section 10(3) of the Act. It has no reference to section 10(5) of the Act. It means that compensation becomes payable, as and when land is 'deemed vested' in the State Government. For claiming compensation, it is, therefore, not necessary that actual physical possession is taken by the Competent authority under section 10(5) and/or 10(6) of the Act. The aforesaid position is clear from the reading of section 11(10) of the Act. 19. Relevant extract of the judgment dated May 9, 2001 in writ petition no. 54722 of 1999 -states: - "This petition relates to the Urban Land (Ceiling and Regulation) Act, 1976 as repealed in 1999. In Pt. Madan Swarup Shrotiya, Public Charitable Trust Vs. State of U.P. and others : J.T. 2000(3) S.C./391 it has been held by the Supreme Court that if possession has been taken over by the State Government then the proceedings under the Act will not abate but if the possession has not been taken over the proceedings shall abate. We make it clear that the word possession means actual physical possession. Hence if actual physical possession has been taken over the proceedings shall not abate otherwise they will abate. The petition is disposed of accordingly." 20. In view of the above even though there has been entry in favour of the State in revenue records without taking action to take possession under section 10(5) and 10(6) (i.e. actual physical possession) the actual tenure holder can not be deprived of the benefit of the Repeal Act. 21. In that view of the matter, the writ petition stands allowed. A writ of mandamus is issued against the respondents not to interfere with the possession of the petitioner over the land declared surplus under the Act by the Competent Authority vide order dated 27.1.1981 (Annexure '2') and further to correct revenue records on necessary steps being taken by the petitioner in that respect."
(3.) PETITIONER Lalla and others complain that despite adjudication by this Court of petitioners' right over the land, vide order dated 2.5.2005, the name of the petitioners have not been restored in the revenue records and the cloud over petitioners' title continues to exist, despite the ceiling proceedings having abated pursuant to its repeal and its adjudication by this Court.;