- (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 8 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 purposes till date.
(2.) A counter affidavit has been filed by the State-respondents. It is stated in the counter affidavit that proceedings under Sections 9, 10(1) and 10 (3) of the Act were held much before the Repeal Act 1999, which was followed by the notice under Section 10 (5) of the Act 1976 which was issued on 23.05.1996. In paragraph 5 of the counter affidavit it has been stated as under : "5. That notification under Section 10 (1) of the Act was issued after preparation of the final statement under Section 9 of the Act, which was published in the official Gazette on 30.06.1986. As no objection was received under Section 10 (2) of the Act, notification under section 10 (3) of the Act was issued, which was published in the official Gazette on 23.03.1996 and thereafter notice under Section 10 (5) of the Act was issued on 23.05.1996 to the returnee requesting him to surrender the excess vacant land. Thereafter the name of the State was recorded in the revenue record. The entire proceedings were concluded much before the Repeal of the Act in the year 1999." Specific case set up by the petitioner is that he continued to hold actual physical possession and the State never took over possession has not been specifically denied in the counter affidavit. The counter affidavit does not contain any detail as to when and in what manner possession of the land declared surplus was taken. As already noted above, State authorities on the contrary admit that revenue authorities after receiving a copy of the notice under Section 10 (5) of the Act, 1976 sent to them incorporated the name of the State in the revenue record.
(3.) It is well settled that actual physical possession of the land is to be taken before the enforcement of the Repeal Act, 1999 with effect from 18.03.1999. 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.;