AN OVERVIEW OF RECENT DECISIONS

REGARDING URBAN LAND (CEILING &

REGULATION) REPEAL ACT, 1999
*Publishedin2006(101)RD15(Journal)

I.

Introduction:

The Urban Land (Ceiling & Regulation) Act, 1976 (in short, the ULCR Act),
enacted during emergency days as a socio-economic measure in the year 1976, virtually
proved failure to achieve its objectives besides witnessing it to be a potent source of
corruption.1 Ultimately, it stood repealed in the year 1999 after due deliberations2 by the
Urban Land (Ceiling & Regulation) Repeal Act, 1999 (in short, the Repeal Act). However,
the true construction of the provisions of the Repeal Act came up for consideration before the
Courts giving rise to a catena of decisions, which need to be highlighted to appreciate the true
scope and ambit of the provisions of the Repeal Act.3
II.

Pending Proceedings to abate- If possession not taken

The Repeal Act repealed the ULCR Act vide its section 2. However, its section 3(I)(a)
saved the vesting of any vacant land under sub-section (3) of section 10, 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. Section 4 of the Repeal Act
also abated all proceedings relating to any order made or purported to be made under the
principal Act pending immediately before the commencement of this Act. However, the
proviso to section 4 carved out an exception to the abatement provision by contemplating that
section 4 shall not apply (i) in so far as such proceeding are relatable to the land, possession
of which has been taken by the State Government or any person duly authorised by the State
Government in this behalf or by the Competent Authority. Thus, where possession of land
has been taken over by the State Government or any person duly authorized by the State
Government or by the Competent Authority, the proceedings did not abate under section 4 of
the Repeal Act otherwise they all abated.
In Smt. Angoori Devi v. Stateof U.P.,4 the Constitution Bench of the Supreme Court
found it not be necessary to proceed with the appeals in view of the fact that the possession
of the vacant land has not been taken over by the State Government. The Court took the

. IntheStatementofObjectsandReasons,appendedtotheUrbanLand(Ceiling&Regulation)Bill,1999,it
wasstatedUnfortunatelypublicopinionisnearlyunanimousthattheActhasfailedtoachievewhatwas
expectedofit.Ithasonthecontrarypusheduplandpricestounconscionablelevels,practicallybrought
thehousingindustrytoastopandprovidedcopiousopportunitiesforcorruption.Thereisawidespread
clamourforremovingthismostpotentclogonhousing.
2
. The Urban Land (Ceiling & Regulations) Repeal Bill, 1998, after being introduced in the Lok Sabha, was
referredtotheParliamentaryStandingCommitteeonRuralandUrbanDevelopment,whichalsoinvited
comments/memoranda by wide publicity on AIR/Doordarshan/Press release. In response thereof, 171
memoranda/letters were received. Pursuant thereto, 14 persons were examined as witnesses by the
Committee.ThisauthoralsotestifiedbeforetheCommitteeasexpertwitnesson2.12.1998.
3
. AbouttheRepeal,theauthoralsowroteanarticleentitledasUrbanLand(Ceiling&Regulation)Repeal
Ordinance,1989:Rationale&GreyAreas,whichwaspublishedin(1999)2SCC(Jour)atp.1.
4
. 2000(4)AWC3355(SC).

view that under section 4 of the Repealing Act, all proceedings under the Act must be held
to have abated.
Similarly, in Pt. Madan Swaroop Shrotia Public Charitable Trust v. State of U.P.5 the
Supreme Court also found that in the counter affidavit not a word has been said about the
possession of surplus land. In fact it is maintained by the appellant that the possession is still
with the appellant who was also granted an interim order regarding status quo. It was further
held thus:
Since there is nothing on record to indicate that the State Government had taken
possession over the surplus land, the present proceedings have to be abated and are
hereby abated under section 4 of the Urban Land (Ceiling & Regulation) Repeal Act,
1999.
More recently, in Kishan Lal v. State of M.P.6, the submission of the appellant was
that possession of the land has never been taken by the State or any person authorized by the
State. On the other hand, the Counsel for the State submitted that possession has been taken
and as a result thereof the land vests in the State of Madhya Pradesh and is unaffected by the
Repeal Act. The Court, in view of the rival contentions of the parties, held thus:
It is not necessary for us to make an inquiry as to whether the assertion of the
appellant is correct or whether the denial by the State is justified. There is no material
before us on the basis of which we can record a finding whether the possession of the
land has been taken over from the appellant. Hence, for want of relevant material, we
cannot go into this question and it is only appropriate that the matter be remitted to the
High Court for a decision in accordance with law after giving to the parties
opportunity of placing their respective cases before the High Court.
A recent order of the Allahabad High Court of a Division Bench7 in Jon Mohammad
and others v. State of U.P. and others, in CMWP No. 3592 of 2006, decided on 20.1.2006,
may also be referred wherein the Bench took the view that the possession of the land was
taken on 23 rd September, 1988 under section 10(6) of the Act which fact has not been denied
in the petition, we are of the opinion that the proceedings did not abate as held by the
Supreme Court in Angoori Devi v. State of U.P.
Thus, the settled law is all proceedings that were pending under the ULCR Act on
the date of the commencement of the Repeal Act stood automatically abated under section 4
of the Act by fiction of law, if the possession of the excess vacant land was not taken by the
State Government or any person authorized in that behalf or by the Competent Authority.

III.

Possession means actual physical possession

Section 3 (1) (a) and 4, proviso, of the Repealing Act8 contemplate taking of
possession. But, what does the expression possession imply? Does it mean actual

. (2000)6SCC325.
. (2005)3SCC632=2005(28)AIC558(SC)=2005(59)ALR149(SC).
7
. ConsistingofHonbleDr.B.S.Chauhan&HonbleDilipGupta,JJ.
8
.3.Saving.(1)TherepealoftheprincipalActDilipGupta,JJ.
(a) Thevestingofanyvacantlandundersubsection(3)ofsection10,possessionofwhichhasbeentaken
overtheStateGovernmentoranypersondulyauthorizedbytheStateGovernmentinthisbehalforby
theCompetentAuthority;
6

physical possession or paper possession / symbolic possession? Of late, these questions

were addressed to and answered by the Allahabad High Court in several judgements, and the
term possession was construed as actual physical possession/ de facto possession.
In Kailash and another v. State of U.P.9, the bone of contention raised by the writ
petitioner before the High Court was: the authority had not taken the actual physical
possession of the land in question, therefore, the possession cannot be kept by the State
Government after the Repealing Act. Thus, the moot point formulated by the High Court
was: Whether the words actual physical possession are contemplated under the prevailing
law or not.
The Division Bench,10 after consideration, held possession to mean actual physical
possession and observed thus: (para 4)
According to us, there is no such bearing under the law leaving aside the word
possession. But we are constrained due to evaporation of earlier law. Therefore, the
point has to be rationally thought for the necessity. Doubtful words are to be interpreted
according to context following the maxim noscitur a sociis. If the word possession in
the existing law does not only include actual physical possession, what other type of
possession can include? Obviously it is symbolic possession. But symbolic possession
is by product of principal Act which will be effective at the time of vesting by applying
deeming provision now has been repealed. Symbolic possession stands with the support
of law wherein physical possession stands with the support of fact. When law
evaporates, symbolic possession automatically evaporates. But physical possession
remains to get it tested. Therefore, if subsequent Act supports existence of such
possession, it has to be construed as physical possession but not symbolic possession.
Court will only test with whom such actual physical possession lies. If the actual
physical possession of the State is such that it is impossible to return back such
possession, obviously no order can be passed in such case although law is little titled in
favour of the landholders. Legislature has made the provisions very clear under sections
3 and 4 of the Repealing Act.
In State of U.P. v. Hariram,11 the Division Bench of the Allahabad High Court12 again
opined that it is clear that mere vesting of land declared surplus under the Act without

(b) The validity of any order granting exemption under subsection (1) of section 20 or any action taken
thereunder,notwithstandinganyjudgementofanyCourttothecontrary;
(c) AnypaymentmadetotheStateGovernmentasaconditionforgrantingexemptionundersubsection
(1)ofsection20.
(2) Where(a)anylandindeemedtohavevestedintheStateGovernmentundersubsection(3)ofsection
10oftheprincipalActbutpossessionofwhichhasnotbeentakenoverbytheStateGovernmentorany
persondulyauthorizedbytheStateGovernmentinthisbehalforbythecompetentauthority;and
(b) anyamounthasbeenpaidbytheStateGovernmentwithrespecttosuchlandthen,suchlandshallnot
berestoredunlesstheamountpaid,ifany,hasbeenrefundedtotheStateGovernment.
4. Abatementoflegalproceedings.Allproceedingsrelatingtoanyordermadeorpurportedtobemade
undertheprincipalActpendingimmediatelybeforethecommencementofthisAct,beforeanyCourt,
Tribunalorotherauthorityshallabate:
Provided that this section shall not apply to the proceedings relating to section 11, 12, 13 and 14 of the
principalActinsofarassuchproceedingsarerelatabletotheland,possessionofwhichhasbeentaken
overbytheStateGovernmentoranypersondulyauthorizedbytheStateGovernmentinthisbehalfor
bythecompetentauthority.
9
.
2005RD726(DB).
10
.
TheBenchconsistedofHonbleAmitavaLala&SanjayMishra,JJ.
11
.
2005(60)ALR535.
12
.
BenchconsistingofHonbleA.K.YogandB.B.Agarwal,JJ.

resuming de facto possession is of no consequence and the landholder shall be entitled to the
benefit of Repeal Act. Honble A.K. Yog, J., speaking for the Bench, further held as under
(para 47):
Section 3 of the Repeal Act amply reflect the purpose and intention of the Legislature,
namely where a land owner remains in physical possession, then irrespective of its
being declared surplus, and/or entry being made in favour of State in Revenue Records
as a consequence of vesting and even if compensation is paid or received, in law,
surplus land gets exempted and ought to remain with original landowner. The relevant
criterion is whether physical possession of the land declared surplus was even taken by
the State Government. If answer is in negative, the landowner must not suffer and
have the benefit of Repeal Act because, due to the inaction/failure on the part of State
to take physical possession before coming into force the Repeal Act, in negation of
Aim and Object and purpose of the Act.
The Court further observed that:
Section 3(2) (a) and (b) of Repeal Act make clear that even receipt of compensation
will not disentitle one to claim benefit of the Repeal Act if compensation is refunded,
provided a person continues to be in physical possession of the land declared surplus.
Another Division Bench13 of the High Court in Gobari v.State of U.P.,14 also reaffirmed possession to mean actual physical possession in these words:
We make it clear that the words possession means actual physical possession. Hence
if actual physical possession has been taken over, the proceedings shall not abate, otherwise
they will abate.
The Division Bench of Honble R.K. Agarwal and Mrs. Saroj Bala, JJ in State of U.P.
v. 15. Took the view that the District Judge, Varanasi had no jurisdiction to proceed on
the appeal in view of the Repeal Act and found that the appeal ought to have .
While passing such order, the Court further remarked:
However, if the respondent are still in actual physical possession of the land in
question their possession shall not be disturbed, as after the repeal of the Act,proceeding for
possession cannot be taken and stand abated.
In Civil Misc. Writ Petition No. 16184 of 2006, the Division Bench of the Allahabad
. Court vide its order dated March 24, 2006 directed the District Magistrate, Allahabad
to examine matter and to pass orders on the application / representation of the petitioner. This
decision came against the factual backdrop that the petitioner moved application to the
District Magistrate and sought the deletion of the name of the State .recording of the name
of original owner on the ground that actual physical possession was not taken.
In another Writ Petition No. 25299 of 2000, the Division Bench of the Allahabad
High Court similarly observed that it is not disputed that the Urban Land Ceiling Act has
been repealed and in case a person continues to be in actual physical possession of the
property in dispute, then the entire proceedings have to be abated and no possession can be
taken from the person concerned. However, in the fact of the case, the Court admitted the
petitioner to file a representation to be decided by the respondent by a speaking order.

13

.
.
15
.
14

OfHonbleM.KatjuandR.B.Mishra,JJ.
2005(1)RJ547.
2006(100)RD202.

Possession-not symbolic
The decision of their Lordships of the Supreme Court in Balwant Narayan Bhagde v.
Punjabrao Krishi Vidyapeeth Akola and others,16 is also instructive. Honble P.N.
Bhagwati, J. (as his Lordship then was), with reference to taking of possession under the
provisions of the Land Acquisition Act, succinctly remarked thus:
We think it is enough to state that when the Government proceeds to take possession
of the land acquired by it under the Land Acquisition Act, 1894, it must take actual
possession of the lad, since all interests in the land are sought to be acquired by it. There can
be no question not taking symbolical possession in the sense understood by judicial
decisions would possession merely on paper be enough. What th Act contemplates as a
necessary condition of vesting of the land in the Government is the taking of actual
possession of the land
Further dealing with the manner of taking possession, Bhagwati, J. stated the position
law in balwant narayan Bhagde (supra) thus:
..How such possession may be taken would depend on the nature of the land. Such
possession would have to be taken as the nature of the land admits of. There can be no hard
and fast rule laying down what fact would be sufficient to constitute taking of possession of
land. We should not, therefore, be taken as laying down an absolute and inviolable rule that
merely going on the spot and making a declaration by beat of drum or otherwise would be
sufficient to constitute taking of possession of land in every case. But here, in our opinion,
since the land was laying fallow and there was no crop on it at the material time, the act of
the Tehsildar in going on the spot and inspecting the land for the purpose of determining
what part was waste and arable and should, therefore, be taken possession of and
determining its extent, was sufficient to constitute taking of possession (emphasis
supplied)
In Om Prakash v. State of U.P.17 the Supreme Court found that the actual possession
was not taken in view of the constructions on the spot at the relevant time and reasoned thus:
Our attention was also invited to Possession Certificate at p. 202 which mentions that for the
lands detailed in the certificate, possession should be given to the Tehsildar / Administrative
Officer, NOIDA on 30.3.1992. The number of lands are listed totalling to 492.91 acres
wherein the appellants khasra numbers are also mentioned. It is difficult to appreciate as to
how the Possession Certificate for all these number of lands would necessarily include actual
taking over of the number of lands on which there were constructions on the spot at the
relevant time. It is also pertinent to note that the Possession Certificate is dated 30.3.1992 and
the High Court of Allahabad granted status quo order on the next day, i.e., 31.3.1992. It,
therefore, appears to us that so far as the appellants lands are concerned, only an effort was
made to take paper possession receipt signed by any of the appellants could be produced to
substantiate that contention. Not only that, as noted earlier, the evidence on record showed
that even pending the write petition, the site inspections report of 11.3.1996 showed that
some of the lands in questions were actually occupied by residents and the lands were
constructed upon and a factory was being run. Consequently, it is not possible to agree with
the submission of learned Senior Counsel for the respondents that the possession of the
acquired land belonging to the appellants was actually taken on the spot on 30.3.1992.
(emphasis added)

16
17

. AIR1975SC1767=(1976)1SCC700.
.(1998)6SCC1=AIR1998SC2504.

The view, taken by the Supreme Court while construing the term possession under
the Land Acquisition Act, 1894, was categorical to mean actual possession in contrast to
symbolic possession. This principle of law would apply with full force while interpreting
possession under the ULCR Act, more particularly for the reason that vesting and
possession have been distinctly and differently used by the parliament under section 10(3)
vis-a-vis section 10(5) / 10(6) of the ULCR Act.
IV.

Invalid taking of possession Benefit of Repeal Act available

Another pertinent aspect considered by the judiciary is: whether possession under
the ULCR Act would also include in its ambit invalid or unlawful taking of possession or
should it be restricted to taking of possession strictly in conformity with the provisions of
the ULCR Act? The answer by the Allahabad High Court is taking of possession should be
valid one and should not be vitiated on ground of any illegality or violation of statutory
provisions.
In Hariram (supra), the Division Bench of the Allahabad High Court explained that
the Court is required to examine the possession purported to be taken under section 10(6) of
the ULCR Act as to whether it is invalidated on any of the considerations in law? If such
possession is unlawful or vitiated in law, then such possession is of no legal consequence.
The High Court elucidated this point of law in the following words (para 58):
Firstly, an illegal act is not recognized in law and has to be ignored unless specifically
required under statute to be reckoned with. Secondly, possession of surplus land, on
notice given under section 10(5) of the Act is to be surrendered by the landowner
voluntary in pursuance to said notice. If the landowner does not surrender possession in
pursuance to the aforesaid notice, the Act contemplates taking possession by force
and coercing the landowner under section 10(6) of the Act. If possession is taken in an
extraordinary manner (process not recognized in law) i.e. without resorting to the
provisions will be irrelevant and of no consequence so far as the applicability of the
Repeal Act if possession of surplus land was not taken as contemplated in the Principal
Act. Repeal Act, clearly talks possession being taken under section 10(5) or (6) of the
Act. It is a statutory obligation on the Competent Authority or State to take possession
as permitted in law. It is to be appreciated that in case possession is purported to be
taken under section 10(6) of the Act, still Court is required to examine whether taking
of such possession is valid or invalidated on any of the considerations in law. If Courts
finds that one or more grounds exist which show that the process of possession,
though claimed under section 10(5) or 10(6) of the Act is unlawful or vitiated in law,
then such possession will have no recognition in law and it will have to be ignored and
treated as of no legal consequence. The possession envisaged under section 3 of the
Repeal Act is de facto and not de jure only. (Italics to highlight ratio)
Proceedings against dead person without bringing LRs on record
If a holder of a vacant land dies during pendency of proceedings and his LRs are not
brought on record by the Competent Authority, whether taking possession of excess vacant
land under the proceedings of the ULCR Act be valid? The answer should be no. An order
under section 8(4) of the Act or section 10(2) should be passed only after giving an
opportunity of hearing to all of the LRs of a deceased holder. Similarly, an order under
section 10(5) of the Act for directing to surrender possession should be addressed to the LRs
of the holder, if the holder has died. If possession of excess vacant land is taken pursuant to
an order under section 10(5) addressed to a deceased holder, such possession shall have no
6

legal consequence and would be invalid. The benefit of the Repeal Act would then be
available to the LRs.
The prcised reason for it is that it is a settled law that a decree against a dead person
is treated as a nullity. In N. Jayaram Reddy and another v. Revenue Divisional Officer and
Land Acquisition Officer, Kurnool,18 Honble P.N. Shinghal, J, speaking for the Supreme
Court, observed (para 6);
The basic fact remains that a decree against a dead person is treated as a nullity because it
cannot be allowed to operate against his legal representative when he was never brought on
the record to defend the case. Any other view would not be possible or permissible for it
would fasten on him a liability for which he did not have any hearing. So while the law treats
such decree as a nullity qua the legal representative of the deceased defendant or respondent,
there is nothing to prevent him from deciding that he will not trust decree as a nullity, but will
abide it as it stands It was also observed that (para 27)
The first limb of this rule audi alteram partem is that a person must be given an
opportunity of being heard before a decision one way or the other affecting him is
recorded. As a corollary to this rule it is provided in the Code of Civil Procedure that
where a party to the proceeding dies pending the proceeding and the cause of action
survives, the legal representatives of the deceased party should be brought on record
which only means that such legal representatives must be afforded an opportunity of
being heard before any liability is fastened upon them. It may be that the legal
representatives in a given situation may be personally liable or the estate of the
deceased in their hands would be liable and in either case a decision one way or the
other, adverse or favourable to them, cannot be recorded unless they are given an
opportunity of being heard. Order XXII, Rules 3 and 4 codify these procedural
safeguards translating into statutory requirement one of the principles of natural
justice.
More recently in Amba Bai and others v. Gopal and others,19 it was held thus:
In the instant case, the deceased Radhu Lal, the second appellant died on 14.12.1990 and his
death was not brought to the notice of the Court and the learned Single Judge disposed of the
appeal on merits by dismissing the second appeal on 25.3.1991. As the judgment in the
second appeal was passed without the knowledge that the appellant had died, the same being
a judgement passed against a dead person is a nullity. When the second appellant Radhu Lal
died on 14.12.1990, his legal representatives could have taken steps to get themselves
impleaded in the second appeal proceedings and as it was not done, the second appeal should
be taken to have abated by operation of law.
In Gyanchand v. Additional Collector20, the Allahabad High Court also said that it is well
settled that order passed against the dead person is nullity.
It may also be relevant to notice another significant decision of the Apex Court in
State of Maharashtra v. Pravin Jethalal Kamdar (Dead) By LRs.21 The facts were: A suit for
declaration and possession was filed, seeking a declaration that the order dated 26.5.1976 of
pre-emption by the State of Maharashtra and the Competent Authority, Urban Land Ceiling
to purchase the property as well as the sale deed dated 23.8.1976 pursuant thereto were null

18

. (1979)3SCC578=1979SC1393.
. (2001)5SCC570=AIR2001SC2003.
20
. 2005(98)RD309.
21
. (2000)3SCC460=AIR2000SC1099.
19

and void. The Supreme Court22 in view of the invalidity of section 27(1) of the ULCR Act
held that:
Consequently, the sale deed executed pursuant to the said order would be a nullity. It
was not necessary to seek a declaration about the invalidity of the said order and the
sale deed. The fact of the plaintiff having sought such a declaration is of no
consequence. Consequently, the sale deed executed pursuant to that order would also be
a nullity. It was not necessary to seek a declaration about the invalidity of the said order
and the sale deed. When possession has been taken by the appellants pursuant to void
document, Article 65 of Limitation Act will apply
Issue of nullity
It is also well settled law that the issue of nullity of a decree can be raised in a
proceeding for execution of decree. On the same analogy, it can be said that nullity issue of a
possession certificate by reason of it being against a dead person can be raised at any time.
The verdict n Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman,23 is an authority about
permissibility of raising a defence of nullity of a decree in execution proceedings wherein it
was held that:
When a decree which is a nullity, for instance, where it is passed without bringing the
legal representatives on the record of a person who was dead at the date of the decree,
or against a ruling prince without a certificate, is sought to be executed of objection in
that behalf may be raised in a proceeding for execution..
It may also be apposite to refer the statement of law by Their Lordships of the
Supreme Court in Balwant N. Viswamitra and others v. Yadav Sadashiv Mule (Dead) through
LRs24 which was as follows;
. Where a Court lacks inherent jurisdiction in passing a decree or making an order, a
decree or order passed by such Court would be without jurisdiction, non est and void ab
initio. A defect of jurisdiction of the Court goes to the root of the matter and strikes at the
very authority of the Court to pass a decree or make an order. Such defect has always been
treated as basic and fundamental and a decree or order passed by a Court or an authority
having no jurisdiction is nullity. Validity of such decree or order can be challenged at any
stage, even in execution or collateral proceedings.25
V.
Notice under section 10(5) to a person other than a holder- Of no help to the
State
Section 10(5) of the ULCR Act enjoins the Competent Authority to give notice in
writing to the person who may be in possession of the excess vacant land. The jurisdiction of
the Competent Authority to take possession by invoking the provisions of section 10(6) of the
ULCR Act, thus, hinges upon the factum of service of notice upon the person concerned, and
in its absence, the Competent Authority would lack jurisdiction to take possession.
The above aspect was considered by the High Court in Kailash (supra), and the
Division Bench held the service of notice under section 10(5) upon a person other than the
holder of the land cannot help the State. Even the co-sharer cannot receive such notice.

22

. BenchconsistingofHonbleS.SaghirAhmed&Y.K.Sabharwal,JJ.
. (1970)1SC670=AIR1970SC1475.
24
. 2004(8)SCC706=AIR2004SC4377.
25
. Seealso:InAjudhRajv.Moti(1991)3SCC136,theSupremeCourttooktheviewthatiftheorderhas
beenpassedwithoutjurisdiction,thesamecanbeignoredasanullity,i.e.,nonexistentintheeyeoflaw
anditisnotnecessarytosetaside.
23

The law under section 10(5) of the Act is crystal clear that notice in writing is to be
given to surrender or deliver the possession and if any body refuses or fails to comply,
the authority may take possession of the vacant land under section 10(6) of the Act.
From the record we find that only a notice under sub-section (5) was received by one
Bachchan Lal. According to the petitioners he has no authority to receive the notice.
Even if a co-sharer cannot affect the right of the others in receiving such notice. In any
event notice under the Principal Act upon one Bachchan Lal cannot help the cause of
the respondents at present.
VI.

Mere mutation- Not to help State to allege its actual physical possession

Another interesting issue relating to the Repeal Act that arose for consideration was
about the legal effect and incident of an entry in favour of the State Government in respect of
the excess vacant land vested in the State Government. The consistent view, taken in this
regard by a number of Benches of the Allahabad High Court, has been that mere mutation of
the States name in the revenue records cannot help the State to allege that such entry
culminated in actual physical possession of the State, as taking a possession is different and
then an entry in the revenue records.
In Chabi Nath v. State of U.P.,26 the facts were: the petitioner filed a writ petition
under Article 226 of the Constitution, claiming a writ of mandamus against the State not to
interfere with his possession and also for deletion of the name of the State Government from
the revenue records and to substitute the name of the petitioner in its place. It was alleged by
the petitioner that while proceedings were initiated under sections 10(1), 10(3) and 10(5), no
notice was served upon the petitioner and he continued in de facto physical possession.
Against this factual matrix, the High Court27 held that:
From the expressions used in section 10(5) and 10(6) of the Act, it is clear that mere
vesting of title with respect to land declared surplus under the Act (without) de-facto
possession being taken is of no consequence. Consequently, even if an entry is made in
revenue records, in favour of State, it is inconsequential so far as the applicability of
section 3 of Repealing Act is concerned. (para 15)
Finally, the Court observed that:
In view of the above even though there has been entry in favour of the State in revenue
records without taking action to take possession under section 10(5) and 10(6) i.e.
actual physical possession the actual tenure holder cannot be deprived of the benefit of
the Repeal Act. (para 20)
In Hariram (supra), the Division Bench of the Allahabad High Court28, again took a
similar view and held vide para 50 that mere mutation of entry in favour of State/other
person in revenue records, is irrelevant/inconsequential so far as the applicability of section 3
of the Repeal Act is concerned. It was also observed that: (para 52)
Entry by mutation in Intikhab Khatauni is a paper transaction-evidencing title only.
Section 3 and 4 of Repeal Act- do not talk of vesting or mutation, but only of actual
possession.
In Kailash (supra), the State contended that the land has been mutated in their name,
therefore, the same cannot be said to be the land of the petitioners. Repelling such
contention, the High Court ruled that:

26

. 2005(1)Rj548.
. DivisionBenchconsistingofHonbleA.K.YogandB.B.Agarwal,JJ.
28
.ComprisingofHonbleA.K.YogandB.B.Agarwal,JJ.
27

..We are also aware that mutation cannot have given the title. Therefore, mere
mutation cannot help the State for saying that the land is in their actual physical
possession.
VII.

Sum up:

It cannot be gainsaid that the Repeal Act is a beneficial piece of legislation which
needs a construction to achieve the purpose of its enactment rather than defeating it.
However, it is most unfortunate that the authorities in the State of UP are failing to appreciate
the real intent and purpose of the Repeal Act. They are also not acting in furtherance of the
letter and spirit of the Repeal Act. Needless to say, the authorities under the ULCR Act must
act strictly in conformity with the law declared by the judiciary and ensure that the benefit of
the Repeal Act finally reaches to the concerned. The salutary step by way of the repeal of the
ULCR Act must have its desired results.

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