HAKIM SINGH Vs. STATE OF U.P

JUDGEMENT

(1.) Heard Shri M.A. Haseen, learned counsel for the petitioner; Shri Sharad Chandra Upadhyay, learned Standing Counsel for State respondents and Shri Nipun Singh, learned counsel for U.P. Avas Evam Vikas Parishad (in short "the Parishad").

(2.) The instant writ petition has been preferred for a direction to respondents not to dispossess the petitioner from the land in question at Khasra Nos. 863, 864, 897, 903, 904 situated at Village Kakaraitha, Tehsil Sadar, District Agra, declared surplus vide order dtd. 18/5/1977 passed under the Urban Land (Ceiling and Regulations) Act, 1976 and record the name of the petitioner after expunging the name of State Government.

(3.) It transpires from the record that ceiling proceedings were initiated under the Urban Land (Ceiling and Regulation) Act, 1976 (in short "the Act, 1976") against the petitioner-Hakim Singh and his brother Mavasia, both sons of Beneram, who were recorded tenure holders of Plot Nos. 863, 864, 897, 903, 904 (total area 8 Beegha 4 Biswa) (in short "the disputed land"), Village Kakaraitha, Tehsil Sadar, District Agra. The petitioner was recorded tenure holder with bhumidhari rights and was in possession over his holding (half share of the disputed land). A notice under Sec. 8 (3) of the Act, 1976 was issued to the petitioner by the Prescribed Authority in the year 1977 and the same was also objected. The said objection was rejected by the Prescribed Authority vide order dtd. 18/5/1977 declaring certain land as surplus. It is claimed that the petitioner had no knowledge of the order dtd. 18/5/1977 and had never received any notice under Sec. 9 of the Act, 1976. Therefore, he could not file any appeal against the order dtd. 18/5/1977. It is also claimed that in the ceiling proceeding 1500 sq. mtr. land was left in favour of the petitioner as per Sec. 4 (9) of the Act, 1976, upon which the respondents had no right and title and as such the entire impugned action of the respondents is arbitrary and illegal. Though the land in question was declared surplus but no actual and physical possession was taken from the petitioner and the petitioner remained and still in actual and physical possession over the disputed land. It is also claimed that no compensation under Sec. 11 of the Act, 1976 was given to the petitioner. Although the notification under Sec. 10 (3) of the Act, 1976 was issued on 27/12/1982 and under Sec. 10 (5) was issued on 18/9/1986 but as both the notifications were not served upon the petitioner, therefore, actual possession was neither been delivered by the petitioner nor taken by the State Government. No proceeding for taking possession under Sec. 10 (6) of the Act, 1976 or any other provisions had even been invoked against the disputed land. After the Repeal Act, 1999 no proceeding under Sec. 10 (6) can be initiated and the State Government cannot dispossess the petitioner after the Repeal Act. Mere publication of notification under Ss. 10 (3) and 10 (5) of the Act, 1976 is not sufficient, if the actual physical possession has not been taken by the prescribed Authority.