Amitava Lala, J.
1. The impugned land of the writ petitioners is, according to the respondent authority, surplus in nature and had been taken by the authority as per Sections 10(5) and 10(6) of the Urban Land (Ceiling and Regulation) Act, 1976. Such Act was repealed by virtue of the Urban Land (Ceiling and Regulation) Repeal Act, 1999. State of Uttar Pradesh adopted the repealing Act of the Central Government. Therefore, the repealing Act is applicable in the State with full force.
2. The bone of contention of the petitioners' argument is that the authority had not taken the actual physical possession of the land in question, therefore, the possession cannot be kept by the State Authority after the repealing Act being enforced in the State. The writ petition was filed after the repealing Act came into force.
3. Therefore, the moot point is whether the words actual physical possession are contemplated under the prevailing law or not.
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is byproduct of principal Act which will be effective at the time of vesting by applying deeming provision now has been repealed.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 tilted in favour of the land holders. Legislature has made the provisions very clear under Sections 3 and 4 of the Repealing Act. The relevant sections of the Repealing Act are quoted hereunder :
3. Savings.--(1) The repeal of the principal Act shall not affect :
(a) 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 authorised by the State Government in this behalf or by the competent authority ;
(b) the validity of any order granting exemption under Sub-section (1) of Section 20 or any action taken thereunder, notwithstanding any judgment of any Court to the contrary ;
(c) any payment made to the State Government as a condition for granting exemption under Sub-section (1) of Section 20.
(2) Where :
(a) any land is deemed to have vested in the State Government under Sub-section (3) of Section 10 of the principal Act but possession of which has not been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority ; and
(b) any amount has been paid by the State Government with respect to such land
then such land shall not be restored unless the amount paid, if any, has been refunded to the State Government.
4. Abatement of legal proceedings.--All proceedings relating to any order made or purported to be made under the principal Act pending immediately before the commencement of this Act, before any Court, Tribunal or any authority shall abate :
Provided that this section shall not apply to the proceedings relating to Sections 11, 12, 13 and 14 of the principal Act insofar as such proceedings are relatable to the land, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority.
5. Composite reading of the aforesaid two sections gives indication of mind. Under Section 10(3) of the Urban Land (Ceiling and Regulation) Act, 1976, vesting shall be declared by notification etc. Under Section 10(5) notice will be issued to surrender or deliver the possession subject to such vesting. Under Section 10(6) if any person refuses or fails to comply with an order made under Sub-section (5), the authority may take possession. Therefore, when both vesting and possession are available then alone the original Act can be applicable. In other words such possession can be made only as an incident of vesting. Under the repealing Act practical difficulty has been considered by the Legislature and that practical difficulty is none other than the actual physical possession it occurs subject to vesting but even if law is lifted but possession cannot be given back physically. The last part of Sub-section (2) under Section 3 of the repealing Act is in respect of restoration of the land even when the amount can be paid back to the State Government. Payment of amount, if any, will come only when the possession has been taken. The Legislature has extended the scope even to the extent provided possession can be given back. The proviso to Section 4 of the repealing Act does not allow one to take advantage of abatement of legal proceedings when Section 11 onwards takes effect. Such situation is available only when land has been acquired and payment is existed. It was held by the Supreme Court in Pt. Madan Swaroop Shrotiya Public Charitable Trust v. State of U.P. and Ors. : AIR2000SC3415 , that when nothing on record to indicate that State had taken possession over the surplus land, the proceedings have to be abated under Section 4 of the Repeal Act, 1999. In totality enquiry and determination of actual physical possession and payment or refund money thereof are the necessary requirement for consideration under the Repeal Act. It has argued on the strength of Kishan Lal v. State of M. P. and Ors. : (2005)3SCC632 , that when both vesting and possession are made applicable then the original Act will be made applicable but not the repealing Act, otherwise repealing Act will be applicable. Supreme Court held that there are some other provisions in the said section (Section 3 of the said Repeal Act) which are relevant in deciding the question as to whether the repeal shall affect such vesting. In an unreported judgment when State wanted a clarification in this regard in Civil Misc. Writ Petition No. 47369 of 2000, State of U.P. through the Competent Authority and Anr. v. Hari Ram and Ors., one of our Division Bench held as follows :
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 voluntarily 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 contemplated under Section 10(5) or Section 10(6) of the Act, then possession will be irrelevant and of no consequence so far as the applicability of the Repeal Act is concerned. The Repeal Act shall have no effect on the Principal 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 10(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 Court 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.
6. Even thereafter we wanted to verify the truth of actual physical possession and appointed a member of the bar as special officer to visit the spot and place a report before the Court under sealed cover. Such report categorically speaks that no actual physical possession has been taken by the State. A fake defence has been taken by the State that at the time of inspection no one was present on behalf of the State. But we find from the earlier order of the Court that in presence of all the parties when the order was passed, it was made clear that no further notice will be given but all will be present at the time of making inspection of the spot by the Special Officer. Under the order dated 18th July, 2005, date and time were fixed by this Court. After opening the sealed cover and going through the report we have directed to circulate the report to give further opportunity to the parties to take appropriate step including exception to the report but State has not made any application taking exception to the report. They have relied upon their own record to establish the cause under Section 10(5) of the Urban Land (Ceiling and Regulation) Act, 1976. 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.
7. The respondents further wanted to say that the land has been mutated in their name, therefore, the same cannot be said to be land of the petitioners. We are all aware that mutation cannot give the title. Therefore, mere mutation cannot help the State for saying that the land is in their actual physical possession. Even the Division Bench of our High Court in the earlier unreported judgment held as follows :
Mere 'mutation' of entry in favour of State/other persons in revenue records, is irrelevant/ inconsequential so far as the applicability of Section 3 of Repeal Act is concerned.
8. Therefore, such point is also tested.
9. Learned standing counsel lastly contended that it is impossible for the State to keep actual physical possession of all the lands in question, which were previously vested by virtue of the surplus land under the Principal Act. The answer is hidden in such submission. The obvious inference is that when vesting of land is lifted by the evaporation of law and the land under vesting has not been utilised for any purpose save and except putting sign board, if any, to show that it was earlier vested under the Principal Act, cannot be held by the State.
10. Hence, as per the interpretation of this Court in this matter as well as in the earlier occasion and having discussion on the similar point by another Division Bench of this Court as also by the Supreme Court either expressly or impliedly, we do not find any other reason other than to allow the writ petition safely.
11. Therefore, we declare that the land in question is free from any requisition or acquisition under the Ceiling Act, as aforesaid, and the petitioners are entitled to have lawful possession of the land in question.
12. Thus, the writ petition stands disposed of.
13. However, no order is passed as to costs.