HARBHAJAN SINGH Vs. STATE OF U P

JUDGEMENT

(1.) This petition arises out of the proceedings under the Urban Land (Ceiling and Regulations) Act, 1976 (in short the 'Act, 1976'). The dispute is in respect of plot nos. 562M, 564M, 565M, 568M, 569M, 571M and 572M, total area admeasuring 26686.21 sq. meter, which was recorded in the name of the petitioner Harbhajan Singh. The petitioner submitted return under Section 6(1) of the Act, 1976 whereupon the competent authority got the survey done and a draft statement was sent along with notice under Section 8(3) of the Act, 1976 dated 25.4.1977. The petitioner filed an objection on 02.06.1977. The competent authority after considering the objection filed by the petitioner confirmed the draft statement proposing to declare 24686.29 sq. meter land in excess of the ceiling limit. Notice under Section 10(1) of the Act, 1976 was published in official gazette on 21.08.1989. However, the petitioner filed an application dated 02.01.1991 again raising certain objection in respect of the final statement on the allegation that certain agricultural land was wrongly clubbed and included in the final statement. The competent authority after considering the Khasra entries of the relevant year and making a fresh spot inspection modified its earlier order and excluded the khasra plots no. 564 and 568 over which agricultural activities were found, from the final statement and accordingly excess vacant land in the hands of the petitioner was reduced to 5679.98 sq. meter. Final declaration was made under Section 10(3) of the Act, 1976 on 30.04.1993, which was published in official gazette on 11.10.1993. Notice under Section 10(5) of the Act was issued on 11.10.1993. The petitioner thereafter, filed a time barred appeal under Section 33 of the Act, 1976 along with an application under Section 5 of the Limitation Act seeking condonation of delay. The District Judge vide judgment and order dated 02.08.2003 dismissed the Section 5 application and accordingly the appeal stood dismissed as barred by limitation. Aggrieved, the petitioner has approached this Court making a challenge to the appellate order dated 02.08.2003. A relief of mandamus has also been claimed commanding the respondents not to treat the land of plot nos. 567M, 571M and 572M area 5679.88 sq. meter as surplus in the hands of the petitioner.

(2.) The Act of 1976 came to be repealed by Urban Land (Ceiling and Regulations) Repeal Act, 1999 with effect from 18.03.1999. The question of maintainability of an appeal under Section 33 of the Act, 1976 after its repeal with effect from 18.3.1999, has been subject matter of consideration by a Division Bench of this Court in the case of State of U.P. v. Jagdish Chandra, 2013 AIR(All) 152 . The Division Bench after considering the provisions of the Act, 1976, the Repeal Act, 1999, the provisions of the General Clauses Act and various judicial pronouncements has answered the issue as under :

(3.) In the case in hand, we find that not only the petitioner has failed to make specific averment with respect to his continuing in possession of the land declared surplus but the counter affidavit filed on behalf of the State goes to show that possession of the surplus land was taken after due execution of a possession memo.