- (1.) Heard Sri A.K.Srivastava, learned counsel for the petitioner and learned Standing Counsel for the State respondents.
(2.) The case of the petitioner is that his deceased father late Ram Nath was 'bhumidhar' and in possession arazi no. 239Ga area 262.86 sq. meter, 210 area 570.22 sq. meter , 349 area 3649.40 sq. meter, 350 area 7412.86 sq. meter, 800 area 25967.80 sq. meter, 810 area 4504.73 sq. meter, 985 area 17933.41 sq. meter situate in Mauza Karehda Uparhar, Pargana and Tehsil Sadar, District Allahabad. Certain area of the aforesaid plots was declared surplus vide order dated 03.09.1982. The actual physical possession has not been taken either from his deceased father or from him and thus he would be entitled to the benefit of Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred as to the 'Repeal Act') as the entire proceedings of the Principal Act would stand abated. Specific case set up by the petitioner is that actual physical possession has not been taken and he still continues in possession over the land declared surplus. A counter affidavit has been filed on behalf of the State respondents stating that notice under Section 8(2) of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the 'Act, 1976') along with a draft statement was served upon the recorded tenure holder Ram Nath on 25.03.1982 proposing to declare an area 40135.05 sq. meter of land as surplus. However, since neither any objection was filed nor anybody appeared on the date fixed, as such, the prescribed authority vide order dated 03.09.1982 passed an order under Section 8(4) of the Act, 1976 declaring an area 40135 sq. meter as surplus land . Thereafter, a final statement under Section 9 was issued and served on the recorded tenure holder on 14.09.1985. Publication under Section 10(1) and 10(3) of the Act, 1976 was made in the gazette dated 28.02.1986 and 24.02.1996 respectively. It is also stated that a notice under Section 10(5) of the Act, 1976 was issued to the tenure holder on 30.7.1996. The counter affidavit further states that after publication of notice under Section 10(3) of the Act, 1976 and issuance of notice 10(5), the land stood vested in the State Government free from all encumbrances. There is no allegation in the entire counter affidavit with respect to the fact as to when the possession was taken in pursuance of the notice under Section 10(5) of the Act and also the manner in which the possession was taken. Possession memo has also not been filed along with the counter affidavit. There is not even an averment in the counter affidavit that actual physical possession of the land declared surplus was taken either from the petitioner or his predecessor.
(3.) When the matter was heard on 01.09.2015, since there was no documentary evidence in the counter affidavit to demonstrate that actual physical possession was taken from the petitioner, in order to satisfy our conscious and to do complete justice between the parties, we required the learned Standing Counsel to produce the original record pertaining to ceiling proceedings in respect of the petitioner. In pursuance of the order, the original record has been produced. A perusal of the original record goes to show that though a copy of notice under Section 10(5) dated 30.07.1996 is on record but there is no proof of its service either on the recorded tenure holder or the petitioner. There is no possession memo on the record of the case. A perusal of the original record produced before us goes to show that there is no material on record to indicate that possession of the land declared surplus was taken over by the State at any point of time.;