- (1.) Heard learned counsel for the petitioners and learned Standing Counsel for the State-respondents. The case of the petitioner is that though plots in dispute were declared surplus in the hands of recorded tenure holder, Hari Shankar, his deceased father, in proceedings case no. K-1375/1976, State Vs. Hari Shankar by means of an exparte order dated 20.08.1982 under the Urban Land (Ceiling and Regulation) Act, 1976 (in short hereinafter referred to as 'Act'), but actual physical possession has not been taken and, thus, he would be entitled to the benefit of the provisions of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (in short hereinafter referred to as 'Repeal Act'). Specific case set up by the petitioner in the writ petition is that actual physical possession had not been taken by the State as such he was entitled for the benefit of Urban Land (Ceiling and Regulation) Repeal Act, 1999 (in short hereinafter referred to as 'Repeal Act'). A counter affidavit has been filed by the State wherein it has been stated in paragraph 4 as under : 4. That the contents of paragraphs 3 to 6 of the writ petition are not correct as stated hence denied. It is stated that the tenure holder Pyare Lal S/o Algu, R/o Village Chakty Rau Dixit, Allahabad has filed statement under Section 6 (1) of Urban Land (Ceiling and Regulation) Act, 1976 and Case no. 1375/76 has been registered and after proper verification a proposed statement was prepared under section 8 (3) of the Act and issued on 29.03.1982 and served upon the tenure holder personally on 12.05.1982 and the tenure holder has not filed any objection within the time prescribed in the notice, thereafter, the then competent authority passed an order on 20.08.1982 declaring 7014.17 sq. metrs. land as surplus according to the provisions of Act and after considering all the facts and evidence available on record and also after providing opportunity of hearing to the parties. It is further stated that the matter was sent for publication under Section 10 (1), 10 (3) of the Act and the same was published in Government Notification thereafter the notice under Section 10 (5) of the Act was issued on 27.06.1996 thereafter the possession over the surplus declared land has been taken by the State Government according to the provisions of law much before the implementation of Repeal Act, 1999." A perusal of the aforesaid averments clearly go to show that mere allegations have been made that surplus land has vested in the State Government much prior to the implementation of the Repeal Act, 1999. There is no averments or any material in the counter affidavit to indicate as to when and how the possession was taken in pursuance of the order declaring the land as surplus. Neither notice under Section 10 (5) has been filed along with the counter affidavit nor possession memo has been filed. Counter affidavit fails to point out even the exact date of taking over possession.
(2.) In the absence of any material in the counter affidavit to demonstrate that State had taken physical possession over the land declared surplus, simple allegation made that after issuance of notification under Section 10 (3) of the act, 1976, the land vested in the State and mutation of its name will not be sufficient to hold that possession of the land has been taken over by the State. The issue was considered by the Division Bench of this Court in the case of Ram Chandra Pandey Vs. State of U.P., 2010 82 AllLR 136 , wherein it was held that mere symbolic possession does not amount to taking over actual physical possession. It was further held that unless actual physical possession has been taken by the State, the party would be entitled to the benefit of the Repeal Act, 1999. The same view has been taken by the Apex Court in the case of State of U.P. Vs. Hari Ram, 2013 4 JT 275 The question for consideration before the Apex Court in the said case was whether deemed vesting of surplus land under section 10(3) of the Act would amount taking over de facto possession depriving the landholders to the benefit of the saving clause under sub-section (3) of the Repeal Act. This issue was answered by the Apex Court in para 39 of the said judgment, which reads as under:- "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."
(3.) The same issue has been reaffirmed by the Apex Court in the case of Gajanan Kamlya Patil Vs. Addl. Collector & Comp. Auth. & Ors., 2014 3 JT 211 . From the pleadings, we find that impleadment application has been made by the Allahabad Development Authority on the allegations that since the land declared surplus has been given to Allahabad Development Authority under the direction of the State Government, therefore, it is necessary and property party. However no body appeared on behalf of the Allahabad Development Authority press the application though the case has been taken up in the revised list. We have perused the affidavit filed in support of impleadment application of the Joint Secretary, Allahabad Development Authority. It is four paragraphs affidavit without even making a reference as to when and in what manner land was transferred by the State in favour of the Allahabad Development Authority. Mere allegation that the land has been given to Allahabad Development Authority under the direction of the State Government would not be sufficient to hold that land stands transferred and vested in Allahabad Development Authority.;