Allahabad High Court
TOTA RAM AND OTHERSversusSTATE OF U.P. AND OTHERS
- Decided
Holding
The petitioners’ continuous possession is upheld and the State’s revenue entries are to be expunged, with the respondents restrained from interfering.
Summary
The petitioners, heirs of the late Tungal, claimed continuous possession of land in Village Manak Mau, asserting that they never received notices under Sections 8(3), 10(1), 10(5) or 10(6) of the U.P. Urban Land (Ceiling and Regulations) Act, 1976, and that the State’s vesting order of 1981 was never executed. They relied on historic Khasra records and payment of irrigation charges to demonstrate possession, while the respondents failed to file a counter‑affidavit despite repeated opportunities. The Court noted that uncontroverted averments in a writ petition may be relied upon, citing precedents where the absence of a reply affidavit led to acceptance of the petitioner’s claims. Considering the petitioners’ uninterrupted possession and the lack of any statutory notice, the Court held that the petitioners were entitled to retain the land and that the State could not interfere. Consequently, the Court ordered the expungement of the State’s revenue entries and restrained the respondents from disturbing the petitioners’ possession.
Issues considered
- Whether the petitioners’ continuous possession despite a 1981 vesting order under the U.P. Urban Land (Ceiling and Regulations) Act, 1976 entitles them to retain the land.
- Whether the absence of a counter‑affidavit from the respondents bars them from contesting the petitioners’ averments.
- Whether the revenue entries in the name of the State must be expunged and the respondents restrained from interfering with possession.
Legislation cited
- Repeal Act, 1999
- U.P. Urban Land (Ceiling and Regulations) Act, 1976 — s. 10(1), 10(3), 10(5), 10(6), 8(3), 8(4)
Subjects
- urban land ceiling
- possession
- revenue records
- vesting order
- counter affidavit
- writ petition
- Uttar Pradesh
Judgment
Reserved On: 03.08.2026
Delivered On: 14.09.2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
WRIT - C No. - 24828 of 2006
Tota Ram And Others
.....Petitioner(s)
Versus
State of U.P. and Others
.....Respondent(s)
Counsel for Petitioner(s) : Ashfaq Ahmad Ansari, Madhusudan
Dikshit
Counsel for Respondent(s) : C.S.C.
Court No. - 40
HON'BLE SARAL SRIVASTAVA, J.
HON'BLE SUDHANSHU CHAUHAN, J.
(Delivered by Hon'ble Sudhanshu Chaunha,J.)
1. Heard learned counsel for the petitioners and Shri Mohan Srivastava,
learned Standing Counsel for State respondents.
2. The present writ petition has been filed seeking a direction to expunge
the entries in the name of the State Government in the revenue records
and also to restrain the respondents from interfering in the peaceful
possession of the petitioners over the land in dispute.
3. The present controversy arises out of proceedings under U.P. Urban
Land (Ceiling and Regulations) Act, 1976, herein after referred to as, “the
Act, 1976”. The land in dispute is comprised in Khasra No. 488/2,
situated at Village Manak Mau, Post Khas, District Saharanpur, having an
area of 0.648 hectares.
4. The petitioners submit that the father of the petitioners, late Tungal,
was the recorded tenure holder of the land in dispute. Further the
petitioners or their father at no point in time have received any notice
under Section 8(3) of the Act, 1976, nor were they served any notice for
taking physical possession of the land in dispute under Section 10(5) and/
or Section 10 (6) of the Act, 1976. Further, the possession of the land in
dispute continues with the petitioners and has never been transferred to
the respondents even as on date. The petitioners in support of their
contention that they are in possession of the land in dispute have placed
reliance upon Khasra from Fasli year 1400 to 1414. Besides, it is also
WRIC No. 24828 of 2006
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submitted that the petitioners are paying irrigation charges to the
Irrigation Department in respect of the land in dispute.
5. However, on 08.02.2006, the Halka Lekhpal came to the land in
dispute and informed the petitioners that the land was vested in the State
in pursuance to proceedings initiated under the Act, 1976 and the
petitioners had no right to remain in possession of the same.
Consequently, the petitioners had engaged a counsel, and it is only
thereafter that the petitioners came to know about the order dated
11.02.1981 passed under Section 8(4) of the Act, 1976. Further it is stated
that the petitioners continue to remain in possession of the land in dispute
in pursuance of the interim order dated 05.05.2006 passed by this Court.
6. The respondents, despite being afforded ample opportunities, have not
filed a counter affidavit to contest the contention of the petitioners raised
in the writ petition. On 03.08.2026, when the matter was taken up, once
again the learned Standing Counsel had sought time to file counter
affidavit on behalf of the respondents. However, we are of the view that
the respondents have not cared to file the counter affidavit despite a
passage of more than twenty years since, the filing of the present writ
petition, and as the matter is very old, it would not be appropriate to grant
any further time to the respondents. Hence the present controversy is
being decided in the absence of a counter affidavit of the respondents and
in view of the same contention of the petitioner made in the writ petition
remains unrebbuted.
7. The petitioners have filed the order dated 11.02.1981 passed by the
Competent Authority under Section 8(4) of the Act, 1976 wherein it was
found that out of the land of the petitioners comprised in Khasra No.
488/2 an area of 8494.16 sq meters was found to be within the urban
agglomeration. Further after leaving the land within the ceiling limit i.e
2000 sq meters, the excess vacant land was determined as 6494.16 sq
meters.
8. It is the specific case of the petitioners that the petitioners or their
father was never served with the notices under Section 8(3), 10 (1) and 10
(5) of the Act, 1976. Further the petitioners are continuously in possession
of the land in dispute prior to initiation of declaration of surplus land till
date, as such, the respondents cannot interfere in the peaceful possession
WRIC No. 24828 of 2006
3
of the petitioners. The submission so made by the petitioners remains
uncontroverted despite several opportunities being granted to the
respondents to file their counter affidavit for the past twenty years. Thus,
there is no reason for us to not rely upon the averment so made in the writ
petition.
9. The Apex Court in the case of Naseem Bano (Smt) v. State of U.P.
and others, 1993 Supp (4) Supreme Court Cases 46 in respect of
averments made in the writ petition which remained uncontrovered had
held:-
“10. ……… In the instant case the said presumption, instead of being rebutted, is
strengthened by the affidavit filed on behalf of respondents 1 to 4 in the High Court wherein
the avernments contained in paragraphs 20, 21 and 22 of the writ petition that 40 per cent of
posts had not been filed up by promotion, were not controvered.”
10. In the case of Choksi Tube Company Ltd. v. Union of India and
others (1997) 11 Supreme court Cases 179 where too no affidavit in
reply was filed to the writ petition has held as under:-
“5. On 10-3-1992 and 11-3-1992 this writ petition and the civil appeals were part heard
before this Court. On 11-3-1992, the Court noted that no counter-affidavit had been filed to
the writ petition; that, having regard to the averments in the writ petition, a counter-affidavit
was necessary; and that the counter affidavit should be filed within 8 weeks. No affidavit
having been filed, the matter was adjourned on 30-10-1996. On 28-11-1996, it was adjourned
again, it being made clear that this would be the last opportunity,. Despite the clear terms of
the order dated 11-3-1992, no affidavit in reply to the writ petition has been filed up to date.
An affidavit has been filed in reply to the civil appeals. There too the ground of arbitrariness
has been taken and the reply is that a notification under Section 25(2) of the Customs Act is in
the discretion of the Government and cannot be claimed as a matter of right.
6. ……
7………. Having regard to the determined stand of the respondents not to state their case on
paper, we must assume that there was neither any public interest nor any circumstances of
exceptional nature involved and that others placed in circumstances similar to that in which
the said mills were placed must have the same benefit as was advanced to the said mills…….”
11. Thus in view of the above there is no reason for us not to rely upon
the contention of the petitioners that the petitioners continued to remain in
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continuous possession of the land in dispute prior to declaration of surplus
land till date. Hence the petitioners being in possession of the land in
dispute at the time of enforcement of the Repeal Act, 1999 are entitled to
remain in possession thereof.
12. In view of the above that the petitioners are in continuous possession
of the land in dispute, the aforesaid contention of the petitioners is further
fortified by the Khasra from Fasli year 1400 to Fasli year 1411,
corresponding to 1993 CE to 2004 CE, the Khasra for all the eleven years
commencing from 1993 CE to 2004 CE reveals that crops were being
sown over the land in dispute, which was recorded in the name of the
respondents. The khasra is a document prepared by the revenue
authorities under the control of the District Magistrate-respondent no.2
and thus, supports the contention of the petitioners of being in possession.
13. Thus, it is difficult to understand as to how and when the possession
of the land in dispute was taken by the respondents, when crops were
being cultivated by the petitioners over the land in dispute. Even
otherwise the orders for recording revenue entries in the name of the State
are passed after publication of notification under Section 10 (3) of the
Act, 1976 which is in respect of vesting of excess vacant land in favour of
the State and as such would be inconsequential in the present case, where
the possession of the land in dispute was never handed over/ taken by the
respondents.
14. Under the circumstances, the petitioners cannot be deprived of the
benefit of the Repeal Act, 1999.
15. Thus, the present writ petition is allowed and the respondent no.2-
District Magistrate, Saharanpur is directed to expunge the revenue entries
in the name of the State/ Urban Ceiling in the revenue records in respect
of Khasra No. 488/2 measuring 2.935 hectares situated in Village Manak
Mau, Post Khas, District Saharanpur to restore the same in the name of
the legal heirs of Tungal, the original land holder and the respondent are
further restrained from interfering in the physical possession over the land
in dispute.
(Sudhanshu Chauhan,J.) (Saral Srivastava,J.)
September 14, 2026
Nadeem
Digitally signed by :-
NADEEM AHMAD
High Court of Judicature at Allahabad
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