- (1.) have heard learned counsel for the petitioner and learned Standing Counsel for the respondents- State. Specific case set up by the petitioner is that the land in dispute though was declared as surplus 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 is entitled to the benefit of provisions of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (in short hereinafter referred to as 'Repeal Act'). It has been specifically alleged in paragraph 7 of the writ petition that no notice under Section 10 (1), 10 (3) and 10 (5) of the Act was ever served upon the petitioner and he continues in de-facto physical possession of the land in dispute. It is further alleged that he is in actual possession over the land in dispute and is using it for agricultural and housing purposes.
(2.) 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 . There is no material in the counter affidavit to demonstrate that State has taken actual physical possession over the land in dispute. Only allegation has been made in paragraph 4 of the counter affidavit that notice under Section 10 (5) of the Act with regard to taking over possession was served on the wife of the petitioner on 20.06.1996 but there is no averment as to when actual physical possession was taken from the petitioner in pursuance of the notice under section 10 (5) of the Act, 1996.;