KULDEEP SINGH BAJAJ Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) HON 'ble Alok Singh, J Undisputedly, petitioner was the owner in possession of the property in question. Undisputedly, petitioner submitted his statements on 7.9.1976 under Section 6 (1) of the Urban Land (Ceiling and Regulation) Act, 1976 on 14.9.1976.

(2.) THE case of the petitioner is that neither any notice was issued nor served on the petitioner under sub - section (5) of Section 10 of the Act nor petitioner ever handed over the possession to the respondents in compliance of the alleged notice under sub -section (5) of Section 10 of the Act nor forceful possession was taken from the petitioner under sub -section (6) of Section 10 of the Act, therefore, the petitioner is entitled for the benefit of repealing of Act No. 33 of 1976 vide Urban Land (Ceiling and Regulation) Repeal Act, 1999. Hon'ble Apex Court in the case of State of U.P. v. Hari Ram reported in AIR 2013 SC 1793, in paragraph nos. 33, 34, 38 and 39 held as under : 33. The Act provides for forceful dispossession but only when a person refuses or fails to comply with an order under sub -section (5) of Section 10. Sub -section (6) to Section 10 again speaks of "possession" which says, if any person refuses or fails to comply with the order made under sub - section (5), the competent authority may take possession of the vacant land to be given to the State Government and for that purpose, force - as may be necessary - can be used. Sub -section (6), therefore, contemplates a situation of a person refusing or fails to comply with the order under sub - section (5), in the event of which the competent authority may take possession by use of force. Forcible dispossession of the land, therefore, is being resorted only in a situation which falls under sub -section (6) and not under sub -section (5) to Section 10. Sub -sections (5) and (6), therefore, take care of both the situations, i.e. taking possession by giving notice that is "peaceful dispossession" and on failure to surrender or give delivery of possession under Section 10(5), than "forceful dispossession" under sub -section (6) of Section

(3.) SURPRISINGLY , neither copy of the notice allegedly issued under sub -section (5) of Section 10 of the Act nor alleged notice under Section 10 (5) of the Act published in the newspaper is placed on record. Therefore, mere allegation made in paragraph nos. 6 & 7 of the counter affidavit is not sufficient to prove that any notice was ever sent and served on the petitioner under sub -section (5) of Section 10 of the Act. In the absence of service of notice under Section 10 (5) of the Act, forceful possession under sub -section (6) of Section 10 of the Act was not permissible. Moreover, taking over forceful possession is also not proved on the record. Consequently, in the net result, writ petition is allowed. Impugned order dated 5.3.1984 declaring the land as surplus is hereby quashed. Entire proceedings against the petitioner stood abated. In the peculiar facts and circumstances of the case, no order as to costs.