SHEEL KUMAR AND 3 OTHERSversusSTATE OF U.P. AND 2 OTHERS

          HIGH COURT OF JUDICATURE AT ALLAHABAD
                      WRIT - C No. - 1605 of 2016

Sheel Kumar and 3 others
                                                           …..Petitioner(s)

                                 Versus

State of U.P. and 2 others
                                                         …..Respondent(s)


Counsel for Petitioner(s)          : Jai Singh, Surendra Nath Dubey
Counsel for Respondent(s)          : Abhinava      Krishna    Srivastava,
                                     C.S.C.

In Chamber                                                       Reserved


             HON'BLE SARAL SRIVASTAVA, J.
             HON'BLE SIDDHARTH NANDAN, J.

                (Per: Siddharth Nandan ‘J’)


1.    Heard Sri Jai Singh, learned counsel for the petitioners, Sri S.N.
Shukla, learned Standing Counsel for the respondent nos.1 to 3, and Sri
Abhinava Krishna Srivastava, learned counsel for respondent no.4.

2.    The present writ petition has been filed seeking quashing of the
order dated 04.07.2015, by way of which the application of the
petitioners dated 28.04.2015 for abatement of the proceedings relating to
Case No. 2678 (State of U.P. Vs. Pancham Lal) and restoration of the
entries in the revenue record was rejected; with the further prayer not to
interfere with the physical possession of the petitioners in respect of Plot
Nos. 741/0.072 Hectare, 652/0.031 Hectare, 840/0.102 Hectare,
1011/0.169 Hectare, 869/0.031 Hectare, 876/0.020 Hectare, 877/0.174
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Hectare and 882/0.010 Hectare, situated at Akbarpur Bangar, Pargana
and District Kanpur Nagar, and Plot Nos. 531/0.174 Hectare, 607/0.450
Hectare, 698/0.409 Hectare, 1053/1 and 1053/2/0.175 Hectare, and
777/0.225 Hectare, situated at Mauja Bairi Akbarpur Kachhar, Pargana
and District Kanpur.

3.    The contention of the counsel for the petitioners is that the
petitioners are the owners of 2/3rd share in the plots in question. It has
further been asserted that Sri Pancham Lal, Jai Narain and Sri Sita Ram
were the original tenure-holders; and that, after the death of Sri Pancham
Lal, 1/3rd share was inherited by Devi Prasad and, after his death,
petitioners nos. 1 and 2 are his legal heirs. Petitioners nos. 3 and 4 are
the legal heirs of Jai Narain Lal.

4.    The case set up by the petitioners is that after the death of Sri Devi
Prasad, who was the eldest male member of the family, on 27.06.2014;
when an inquiry was made, the petitioners came to know that from the
land measuring 10499.97 sq. M, the land in question, has been declared
surplus in pursuance to the proceedings under the Urban Land (Ceiling
and Regulation) Act, 1976 (hereinafter referred to as the “Act, 1976”)
and had vested in the State.

5.    The petitioners also came to know that Devi Prasad, being the
eldest male member of the family, was looking after the entire property
and had also filed Misc. Appeal No. 457/07 of 2005 (Devi Prasad and
Others Vs. State of U.P. and Others) against the order passed by the
authorities under the Act, 1976; however, the same had already been
dismissed on 28.04.2012.

6.    Thereafter, an application dated 28.04.2015 was filed with a
prayer to abate all the proceedings relating to the orders passed by the
competent authority in Case No. 2678 (State of U.P. Vs. Pancham Lal)
under the Act, 1976, seeking the benefit of Section 3 of the Repeal Act,
1999, and for restoration of the entries in the revenue records. However,
the said application was rejected vide order dated 07.07.2015, and
accordingly, the present writ petition has been filed.
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7.    From a perusal of the records and the averments made in the
affidavit, the admitted facts are that Pancham Lal and Jai Narain had
filed returns under Section 6(1) of the Act, 1976, and thereafter, an order
dated 26.02.1979 was passed by the competent authority under Section
8(4) of the Act, 1976.

8.    Thereafter, the final statement under Section 9 of the Act, 1976,
was issued and, consequently, a notification under Section 10(1) of the
Act, 1976, followed by its publication in the Official Gazette under
Section 10(3) of the Act, 1976, was made on 05.09.1981, whereafter the
land in question vested in the State Government free from all
encumbrances. After publication of the notification under Section 10(3)
of the Act, 1976, a notice under Section 10(5) of the Act, 1976, was also
issued to the tenure-holder on 14.10.1981 for handing over possession of
the land in question.

9.    After the expiry of 30 days, when possession was not handed over,
proceedings under Section 10(6) of the Act, 1976, were undertaken, and
possession of the land in question was taken on 30.08.1984 after
conducting Munadi in the presence of two witnesses. The Dakhalnama
has been brought on record along with the counter-affidavit filed on
behalf of the State.

10.   Learned Standing Counsel contends that the father of petitioners
nos. 1 and 2, i.e., Devi Prasad, had full knowledge of the ceiling
proceedings, but he did not object to the same during his lifetime, and it
was only subsequent to the Repeal Act, 1999, that the Misc. Appeal
under Section 33 of the Act, 1976, was filed, which was not maintainable
and was also dismissed subsequently on 24.08.2012.

11.   He further submits that a perusal of Sections 3 and 4 of the Repeal
Act, 1999, clearly indicates that the benefit of repeal of the Principal Act
shall not affect the vesting of any vacant land under Section 10(3) of the
Act, 1976, possession of which has been taken over by the State
Government or any person duly authorized by the State Government in
this behalf or by the competent authority. Moreover, if possession has
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                                                       WRIC No. - 1605 of 2016

not been taken over by the State Government, the said land can only be
restored subject to the refund of the amount paid by way of
compensation. However, such possession is to be considered as on the
date of coming into force of the Repeal Act, 1999, i.e., 18.03.1999.

12.     He further submits that it is the admitted case of the petitioners
that no objection was filed by the original tenure-holders against the
taking over of possession on 30.08.1984, as evidenced by the
Dakhalnama, and that the present writ petition has been filed in the year
2016, i.e., after 32 years from the date of taking over possession.

13.     It has further been averred in the counter-affidavit filed by the
State that the land in question has been transferred to the Kanpur
Development Authority for its supervision and preservation.

14.     A counter-affidavit has also been filed by the Kanpur
Development Authority, wherein a categorical statement has been made
that the plots in dispute have been utilized under the housing scheme,
namely, Maharishi Dayanand Vihar, and have been used for development
works such as roads, drainage, a water supply tank, electricity poles, etc.

15.     The issues which arise for consideration before this Court are
twofold: firstly, whether the relief claimed by the petitioners after 32
years from the date of taking over of possession and vesting of the
property in the State can be granted or not; and secondly, whether, when
the original tenure-holders did not object to their dispossession as far
back as on 30.08.1984, the petitioners can be permitted to dispute the
notice under Section 10(5) or the procedure under Section 10(6) of the
Act, 1976, or whether the taking over of possession would acquire
legitimacy by sheer lapse of time and the person in possession would be
deemed to have waived his rights under Section 10(5)/10(6) of the Act,
1976.

16.     As far as the first issue regarding the claim by the petitioners, after
32 years from the date of taking over of possession and vesting of the
property in the State, is concerned, the only explanation given by the
petitioners is that, when an inquiry was made with respect to the revenue
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records after the death of Sri Devi Prasad, i.e., on 27.06.2014, the
petitioners came to know about the proceedings under the Act, 1976, and
the filing of the appeal under Section 33 of the Act, 1976.

17.     The aforesaid explanation cannot be accepted in view of the fact
that it is the specific case of the respondent-State that the Dakhalnama
was prepared after taking over the possession of the land in question on
30.08.1984, and further that the land in question was transferred to the
Kanpur Development Authority.

18.     The counter affidavit filed by the Development Authority also
indicates that the plots in question have been utilized under the housing
scheme, namely Maharishi Dayanand Vihar.

19.     In view of the aforesaid, the explanation for approaching this
Court after a period of 32 years from the date of taking over of
possession and vesting of the property in the State Government cannot
be accepted, and no relief can be granted.

20.     This Court has also examined the second issue relating to whether,
in the absence of any objection by the original tenure-holder or the legal
heirs in possession as on the date of coming into force of the Repeal Act,
1999, i.e., 18.03.1999, the possession of the State would acquire
legitimacy by sheer lapse of time and the person in possession would be
deemed to have waived his right under Section 10(5)/Section 10(6) of
the Act, 1976.

21.     This Court in the recent decision in the case of Kumbha Karan vs.
State of U.P. and others1 has already held that, in the absence of seeking
an appropriate remedy against the dispossession, by the original tenure-
holder or the legal heirs in possession, as on date of coming into force of
the Repeal Act, 1999 i.e. 18.03.1999 and in the absence of any
explanation for not challenging the taking over of possession at an
earlier stage, no relief in the nature of a writ of mandamus can be
granted. It has further been held that entries in the revenue records
cannot, by themselves, be treated as proof of possession. Though a

1. 2026(5) ADJ 66 (DB)
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                                                    WRIC No. - 1605 of 2016

presumption regarding possession may be drawn on the basis of revenue
entries, the same must be corroborated by other evidence.

22.    In the present case, admittedly, the original tenure-holders had
never objected to their dispossession as far back as in the year 1984, and
it was only in the year 2005 that they preferred a Misc. Appeal under
Section 33 of the Principal Act, which was otherwise not maintainable in
view of the Repeal Act, 1999. No other evidence pertaining to the
physical possession of the petitioners is available on record. On the
contrary, the Dakhalnama dated 30.08.1984 is on record, and various
documentary evidences have also been filed along with the counter-
affidavit of the Development Authority, demonstrating its possession and
the implementation of the housing scheme, along with photographs,
layout plans, etc.

23.    In view of the pleadings of the parties, evidences on record and
lackadaisical approach of the petitioners in approaching this Court, tips
the scale in favour of the State and a case is made out in this regard and
accordingly also in view of the ratio laid down by the Apex Court in the
case of State of Assam vs. Bhaskar Jyoti Sharma and others2, this Court
has no hesitation in holding that the forcible taking over of possession by
the State would acquire legitimacy by shear lapse of time and it shall be
deemed that the original tenure-holders have waived their right under
Section 10(5) and read with Section 10(6) of the Act, 1976.

24.    In view of the aforesaid facts and circumstances, and considering
that the original tenure-holder had never objected to the proceedings
under the Act, 1976 and their dispossession on 30.08.1984, again the
petitioners cannot be permitted to agitate the issue after more than 32
years from the date of dispossession, as from the record it is evident that
the original tenure-holder was aware of the proceedings but chose not to
file any objection and it was only in the year 2005 that they instituted a
Misc. Appeal No.457/07 of 2005 (Devi Prasad and others vs. State of
U.P. and others) and which was also dismissed on 24.08.2012.


2. 2015 (5) SCC 321
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                            25.         The question of dispossession or the objection to the procedure
                            adopted under the Act, 1976 vis-a-vis notice under Section 10(5) of the
                            Act, 1976 or forcible possession under Section 10(6) of the Act, 1976
                            cannot be looked into in absence of the same being not objected by the
                            original tenure holder, within a reasonable time of such dispossession.
                            The said view is also fortified by the decision of the Apex Court in the
                            case of Dalsukhbhai Bachubhai Satasia and Others v. State of Gujarat
                            and others3, the relevant para 20 of which is reproduced herein below:-

                                        “20. We are inclined to agree with this view of this Court in AP Electrical
                                        regarding the effect of Bhaskar Jyoti Sarma on the dictum in Hari Ram. In the
                                        former, de facto possession had actually been transferred to the State
                                        Government. Albeit, this was done by force in contravention of the
                                        requirement to mandatorily issue notice under Section 10(5) of the ULC Act.
                                        In this regard, this Court held that if the objection regarding the non-
                                        compliance with Section 10(5) is not made within a “reasonable time”, then
                                        the right to so object is “waived”.”

                            26.         In view of the aforesaid writ petition lacks merit and is dismissed.
                            However, no order as to costs.




                                                               (Siddharth Nandan,J.)          (Saral Srivastava,J.)

                            August 14, 2026
                            piyush




                            3. 2026 SCC Online SC 25




Digitally signed by :-
PIYUSH KUMAR
High Court of Judicature at Allahabad