- (1.) Heard learned counsel for the petitioner 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, Sant Lal, his deceased father, in a proceedings case no. K-3681/1976, State Vs. Sant Lal by means of an exparte order dated 16.03.1984 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').
(2.) A counter affidavit has been filed by the State wherein it has been stated in paragraph 3(i) as under : "3(i).That in pursuance of notice under Section 6 (1) of the Act, no objection was filed hence an order under Section 8 (4) of the Act was passed on 16.03.1984 declaring an area of 16118.40 sq. meter as surplus. Thereafter a final statement under section 9 of the Act was issued on 30.12.1985. Publication under Section 10 (1) and 10 (3) of the Act was made and notice under Section 10 (5) of the Act was issued on 27.01.1996." It has further been stated that after notice under Section 10 (5) of the Act, the land has been transferred in favour of Allahabad Development Authority in compliance of some Government Order. 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 are 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. Possession memo has not been filed. Copy of the notice under Section 10 (50) of the Act does not indicate that it was ever served on the petitioner or even his predecessor. There is no endorsement on the said notice that any possession was taken or the tenure holder gave up possession voluntarily.
(3.) 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 issuance of notice under Section 10 (5) of the Act 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.;