Madhya Pradesh High Court
Daulat Ram Sahu vs The State Of Madhya Pradesh on 7 May, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI
ON THE 2nd OF MAY, 2024
SECOND APPEAL No. 200 of 2008
BETWEEN:-
1. DAULAT RAM SAHU (DIED ON 30/8/2009)
2. GAURA BAI W/O DAULAT RAM SAHU,
AGED ABOUT ADULT, R/O HOUSE NO. 24
GALI NO.1, RAVI BHAWAN, NOOR MAHAL,
BHOPAL (MADHYA PRADESH)
3. RAJ KUMAR SAHU S/O DAULAT RAM SAHU
AGED ABOUT ADULT, R/O HOUSE NO. 24
GALI NO.1, RAVI BHAWAN, NOOR MAHAL,
BHOPAL (MADHYA PRADESH)
4. ALIM AHMAD KHAN S/O IQBAL AHMAD
KHAN, AGED ABOUT ADULT, R/O VILL-
LAWKHEDI, AIRPORT ROAD TAHSIL
HUZUR, DISTT. BHOPAL (MADHYA
PRADESH)
.....APPELLANTS
(BY SHRI RAJESH PANCHOLI - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THR.
COLLECTOR OLD SECRETARIATE BHOPAL
(MADHYA PRADESH)
.....RESPONDENT/STATE
(BY MS. CHANDRAKANTA PAL - PANEL LAWYER)
Reserved on : 02.05.2024
Pronounced on : 07.05.2024
Signature Not Verified
Signed by: MONIKA
CHOURASIA
Signing time: 5/9/2024
11:57:15 AM
2
This appeal having been heard and reserved for judgment, coming
on for pronouncement this day, Justice Binod Kumar Dwivedi
pronounced the following:
JUDGEMENT
Heard finally along with IA No.8557/2024 filed under Order 41 Rule 27 of the CPC.
2. This second appeal has been filed by original appellant Daulatram Sahu (Deceased) assailing the judgment and decree dated 3/10/2007 passed in RCA No.275/2007, whereby the judgement and decree dated 21/4/2006 passed in Civil Suit No.56-A/2004 has been reversed by setting it aside. The trial Court had decreed the suit filed by respondent/plaintiff.
3. This appeal has been filed by original appellant Daulatram Sahu, who during pendency of this second appeal died on 30/8/2009, therefore, by order of this Court on 12/1/2011, his LRs along with Will holder of the deceased appellant, Alim Ahmad Khan were arrayed as appellants.
4. Briefly stated the suit of the plaintiff is that he is possession and titled holder of the lands bearing Khasra No.157, 158, 159, 161, 182/3 and 293/182 total Rakba 2.63 acres (hereinafter referred to as "the disputed land") situated at village Laukhedi, Patwari Halka No.23, Tehsil Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 5/9/2024 11:57:15 AM 3 Huzur, Bhopal. The disputed lands were declared surplus. Actual possession of these lands was never taken by the competent authority till date of institution of suit i.e. on 7/2/2004. The plaintiff was performing agricultural activities as possession holder. Land Khasra No.161 Rakba 0.34 acre was exempted from the ceiling on 12/9/1991 but again it was included in the schedule of additional land. Central Government promulgated Urban Land (Ceiling and Regulation) Repeal Act, 1999 (for short "the Repeal Act") and it was adopted by the Government of M.P. on 17/2/2000. Government officials prepared exparte kabja (possession) panchnama (Ex.D/2) regarding disputed lands antedating it 4/2/2000, wherein it was not mentioned how much land has been taken from which khasra number and resorting to this kabja panchnama, revenue maps were amended. On 12/8/2003, Halka Patwari directed to forcibly dispossess the deceased/appellant from the disputed lands. Since, the possession of the disputed land was not taken till 17/2/2000 by the government, the disputed lands became free from ceiling by virtue of sections 3 and 4 of the Repeal Act. When the government officials became adamant to dispossess the plaintiff, he filed suit for declaration of his title over the disputed land and also for the relief of injunction restraining the government from dispossessing him.
Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 5/9/2024 11:57:15 AM 4
5. State of Madhya Pradesh refuting the claim of plaintiff in written statement stated that the disputed land has been taken in possession by due course of law and plaintiff is not in possession of the land. Plaintiff was served a notice (Ex.D-1/P-4) under Section 10(5) of the The Urban Land (Ceiling and Regulation) Act, 1976 (for short "the Principle Act") by the competent authority on 17/6/1994 mentioning that the disputed land area 2.63 acres has been declared as surplus and possession will be taken on the spot. On the service report, signatures of the plaintiff are present. Possession was taken in absence of the plaintiff and in presence of Revenue Inspector, Patwari and villagers on 4/2/2000. Land survey No.161 Rakba 0.34 Hectare is not free from ceiling and provisions of the Repeal Act are not applicable. Since the disputed land is in possession of the government, therefore, the suit is liable for dismissal. On pleadings of the parties, trial Court on 14/3/2006 framed the issues which are as under:-
1. D;k oknh ds LokfeRo ,oa vkf/kiR; dh Hkwfe [kljk Øekad&157] 158] 159] 182@3] 393@182 jdck 2-63 ,dM+ dk e/;izns'k 'kklu }kjk uxj Hkwfe lhek vf/kfu;e ds izko/kkuksa ds varxZr vkf/kiR; izkIr ugha fd;k x;k gS ?
2. D;k oknh oknxzLr Hkwfe ij fujarj --f"k dk;Z djrs gSa] vkSj Hkwfe dk vkf/kiR; esa gS Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 5/9/2024 11:57:15 AM 5
3. D;k fujlu vf/kfu;e ds izHkko'kkyh gksus ls oknxzLr Hkwfe dk vkf/kiR; 'kklu }kjk izkIr ugha fd;k x;k gS ?
4. D;k 'kklu }kjk /kkjk 10 ¼5½ uxj Hkwfe lhek vf/kfu;e ds varxZr lwpuk i= dk fuokZg dj dCtk fof/kor~ izkIr fd;k x;k gS ?
5. D;k oknh us okn dk mfpr ewY;kadu ugha fd;k gS ?
6. lgk;rk ,oa O;;A
6. After recording evidence tendered by the parties and also after affording reasonable opportunity of hearing, judgment dated 21/4/2006 was passed decreeing the suit of the appellant/plaintiff. This judgment was assailed by filing RCA No.275/2007. The first appellant Court by its judgment dated 3/10/2007, set aside the judgment and decree passed by the learned trial Court and allowed the appeal meaning thereby the suit of the appellant/plaintiff was dismissed.
7. Being aggrieved by the reversal of the judgment and decree passed by the trial Court in Civil Suit No.56-A/2004, this second appeal was preferred by challenging the judgment passed by the first appellate Court the appeal was admitted on 8/2/2011 on the following substantial question of law :-
1. "Whether the notice Ex.D/1 purported to be issued under Section 10(5) of the Urban Land (Ceiling and Regulation) Act, 1976 is legal and valid as the same does not require the plaintiff to hand over the possession within a period of 30 days Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 5/9/2024 11:57:15 AM 6 as prescribed u/s 10(5) of the Urban Land (Ceiling and Regulation) Act,1976 ?"
2. "Whether in the absence of a valid notice u/s 10(5) of the Urban Land (Ceiling and Regulation) Act, 1976, the suit lands have vested in the State Government ?"
8. Learned counsel for the appellant submits that physical possession of the disputed lands was never taken from the appellant till coming into force of the Repeal Act in the State of M.P. on 17/2/2000 and therefore, by virtue of Sections 3 & 4 of the Repeal Act whole proceedings initiated under the Principle Act abated. On 18/2/2011 at the time of admission of this appeal, order of status quo was issued in favour of the appellant and which was made absolute thereafter, is also admission of the fact that initially original appellant Daulatram (Deceased) was in possession of the disputed lands and after his death present appellants continued in possession of the lands in dispute.
9. Learned counsel for the appellants further submits that a notice under Section 10(5) of the Principle Act (Ex.D-1/P-4) dated 17/6/1994 was allegedly given to original plaintiff, Daulatram (Deceased) but till 17/2/2000, possession was not taken by the government and on adoption of the Repeal Act by State of Madhya Pradesh on 17/2/2000. Kabja Panchnama (Ex.D/2) was prepared antedating it 4/2/2000 which has no Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 5/9/2024 11:57:15 AM 7 value in the eye of law. No notice was served on the appellant under Section 10(5) of the Principle Act. No witness of the kabja panchnama was ever examined by the respondent. Learned counsel for the appellants further submits that first appellate Court against established principles of law cast a reverse burden on appellant/plaintiff to prove that notice (Ex.D-1/P-4) does not bear signature of the original appellant while it was duty of the respondent/government to prove that it bears the signature of deceased Daulatram. Learned counsel for the appellants further submits that being agricultural land by virtue of Section 2(o) and 2(q) of the Principle Act, it was free from the clutches of the Act and did not vest in the State. It is not a vacant land as given in section 2(q) of the Principle Act but the learned first appellate Court in para 12 of its judgment, gave a perverse finding that possession of disputed lands has been taken and judgement in WP No.603/2000 Gaurav Agroplast Ltd. vs. State of M.P. relied upon by the appellant is not applicable to the instant case. Findings given in para 13 and 14 of the judgement by the first appellate court are also perverse as certified copies of documents (Ex.P-9 to P-12) have been denied terming them as not proved without any basis. Looking to these facts, this appeal has been admitted on substantial question of law as mentioned hereinabove. Inviting attention of this Court towards Section Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 5/9/2024 11:57:15 AM 8 100(5) of CPC, learned counsel further submits that this Court is competent enough to raise further substantial question of law "Whether the suit land being agricultural land is beyond purview of provisions of the Principle Act by force of sections 2(o) and 2 (q) of the Principle Act".
10. To bolster his submissions, learned counsel for the appellants has relied upon the para 10 of the judgment in Shantibai vs. State of M.P. ; 2011(2) MPLJ 307, para 4,6,8,11,12,13 and 16 of the judgment in the case of Ramprasad vs. State; 2002 (5) MPLJ 417, para 13,15, 16,17,18 and 20 of the judgment dated 25/1/2019 passed in WP No.1855/2005 (Rajendra Kumar Patel vs. State of MP), para 5,6,8,10,11 to 16 and 18 of the judgement dated 15/5/2017 passed in WP No.7292/2009 (Ku. Kesar Iqbal and Kum Tahira Begum vs. State of MP) and also placed reliance on the judgment of the Apex Court in the case of Pandit Madan Swaroop Shrotiya Public Charitable Trust vs. State of U.P., 2000 (6) SCC 325.
11. All the judgments have been relied upon for the premise that when de-facto possession of the disputed lands declared surplus has not been taken before coming into effect of the Repeal Act by virtue of sections 3 and 4 of the Act the ceiling proceedings abate and land becomes free and not vest in the State.
Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 5/9/2024 11:57:15 AM 9
12. In the light of the above contentions, learned counsel prays for setting aside the impugned judgment and decree passed by learned first appellate court by allowing this appeal.
13. Per contra, learned panel lawyer for the State refuting all the contentions raised on behalf of the appellants' submits that the disputed lands were declared surplus by adopting due course of law. The possession was taken from the original appellant on 4/2/2000 before the Repeal Act came in force in the State of Madhya Pradesh on 17/2/2000. Supporting the judgment passed by the first appellate court, learned counsel for the respondents prays for dismissing this second appeal terming it as bereft of substance.
14. Heard rival contentions raised at bar and perused the record.
15. After hearing learned counsel for the parties and to answer the aforementioned substantial questions of law, first of all the relevant provisions of Sections 10(5) and 10(6) of the Principle Act are required to be taken note of, therefore, the aforesaid provisions are being reproduced as under:-
"Section 10(5) Where any vacant land is vested in the State Government under Sub- Section (3), the competent authority may, by notice in writing, order any person who may be in possession of it to surrender or deliver Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 5/9/2024 11:57:15 AM 10 possession thereof to the State Government or to any person duly authorized by the State Government in this behalf within thirty days of the service of the notice.
(6) If any person refuses or fails to comply with an order made under sub-Section (5), the competent authority may take possession of the vacant land or cause it to be given to the concerned State Government or to any person duly authorised by such State Government in this behalf any may for that purpose use such force an may be necessary."
16. On perusal, it is apparent that on vesting of the land in the State Government under sub-section (3) of Section 10 of the Principal Act the Competent Authority may, by notice in writing to any person, who may be in possession of the land, direct to surrender or deliver possession thereof to the State Government or any person duly authorized by the Government in this behalf within thirty days from the date of service of notice. In compliance to the provisions of sub-section (5) of Section 10 if possession has not been delivered then the Competent Authority may take possession of the vacant land or cause it to be given to the concerned State Government or any person duly authorized by such Government even by using force, if necessary as per Section 10(6) of the Principal Act.
Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 5/9/2024 11:57:15 AM 11
17. The provisions of Section 3 which deals with the Saving Clause and Section 4 which deals with the Abatement of Legal Proceedings of the Repeal Act are also required to be taken note of, therefore, the aforesaid provisions are being reproduced as under:-
"3. Saving.-(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 other authority shall abate ;
Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 5/9/2024 11:57:15 AM 12 Provided that this section shall not apply to the proceedings relating to Sections 11, 12, 13 and 14 of the Principal Act in so far 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."
18. Bare reading to the aforesaid, as per Saving Clause 3(1) of the Repeal Act, it appears the repeal of the Principal Act shall not affect the situation where on 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. As per Saving Clause 3(2)(a)
(b) of the Repeal Act, if possession of the land has not been taken over by the State Government or any person duly authorized by the sta Government in this behalf or by the competent authority but the amount has been paid, however, such land shall not be restored unless the amount paid has been refunded to the State Government. The abatement of legal proceedings would be as per Section 4 of the Repeal Act whereby it is clear that all proceedings relating to any order made or purported to be made under the Principal Act pending immediately before commencement of the Repeal Act before any Court, Tribunal or other authority shall abate and as per its proviso, the abatement would not Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 5/9/2024 11:57:15 AM 13 apply to the proceedings relating to Sections 11, 12, 13, 14 of the Principal Act, but in case possession has not been taken over then such proceedings would abate.
19. Hon'ble the Apex Court has interpreted the basic provisions of the Principal Act as well as of the Repeal Act in the case of State of U.P. Vs. Hariram. (2013) 4 SCC 280 and has held as under:-
"Voluntary Surrender
31. The 'vesting in sub-section (3) of Section 10, in our view, means vesting of title absolutely and not possession though nothing stands in the way of a person voluntarily surrendering or delivering possession. The court in Maharaj Singh v. State of UP and Others (1977) 1 SCC 155, while interpreting Section 117(1) of U.P. Zamindari Abolition and Land Reform Act, 1950 held that 'vesting' is a word of slippery import and has many meaning and the context controls the text and the purpose and scheme project the particular semantic shade or nuance of meaning The court in Rajendra Kumar v. Kalyan (dead) by Lrs. (2000) 8 SCC 99 held as follows:
"28....We do find some contentious substance in the contextual facts, since vesting shall have to be a "vesting" certain. "To vest, generally means to give a property in." (Per Brett. LJ. Coverdale v. Charlton. Stroud's Judicial Dictionary, 5th edn. Vol. VI.) Vesting in favour of the unborn person and in the contextual facts on the basis of a subsequent adoption after about 50 years without any authorization cannot however but be termed to be a contingent event. To "vest", cannot be termed to be an executor devise. Be it noted however, that 'vested does not necessarily and always mean "vest in possession" but includes "vest in interest as well."Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 5/9/2024 11:57:15 AM 14
32. We are of the view that so far as the present case is concerned, the word "vesting" takes in every interest in the property including de jure possession and, not de facto but it is always open to a person to voluntarily surrender and deliver possession, under Section 10(3) of the Act.
33. Before we examine sub-section (5) and sub-
section (6) of Section 10, let us examine the meaning of sub-section (4) of Section 10 of the Act, which says that during the period commencing on the date of publication under sub-section (1). ending with the day specified in the declaration made under sub- section (3), no person shall transfer by way of sale, mortgage, gift or otherwise, any excess vacant land, specified in the notification and any such transfer made in contravention of the Act shall be deemed to be null and void Further, it also says that no person shall alter or cause to be altered the use of such excess vacant land. Therefore, from the date of publication of the notification under sub-section (1) and ending with the date specified in the declaration made in sub-section (3), there is no question of disturbing the possession of a person, the possession, therefore, continues to be with the holder of the land.
Peaceful dispossession
34. Sub-section (5) of Section 10. for the first time, speaks of "possession" which says where any land is vested in the State Government under sub-section (3) of Section 10, the competent authority may, by notice in writing, order any person, who may be in possession of it to surrender or transfer possession to the State Government or to any other person, duly authorized by the State Government.
35. If de facto possession has already passed on to the State Government by the two deeming provisions under sub-section (3) to Section 10, there is no necessity of using the expression "where any land is vested" under sub-section (5) to Section 10.
Surrendering or transfer of possession under sub- section (3) to Section 10 can be voluntary so that the Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 5/9/2024 11:57:15 AM 15 person may get the compensation as provided under Section 11 of the Act early. Once there is no voluntary surrender or delivery of possession, necessarily the State Government has to issue notice in writing under sub-section (5) to Section 10 to surrender or deliver possession. Subsection (5) of Section 10 visualizes a situation of surrendering and delivering possession, peacefully while sub- section (6) of Section 10 contemplates a situation of forceful dispossession. Forceful dispossession
36. The Act provides for forceful dispossession but only when a person refuses or fails to comply with an order under sub-section (5) of Section 10. Sub-section (6) to Section 10 again speaks of "possession" which says, if any person refuses or fails to comply with the order made under sub- section (5), the competent authority may take possession of the vacant land to be given to The State Government and for that purpose, force as may be necessary can be used. Sub-section (6), therefore, contemplates a situation of a person refusing or fails to comply with the order under sub- section (5), in the event of which the competent authority may take possession by use of force.
Forcible dispossession of the land, therefore, is being resorted only in a situation which falls under sub- section (6) and not under sub-section (5) to Section
10. Sub-sections (5) and (6) therefore, take care of both the situations, i.e. taking possession by giving notice that is "peaceful dispossession and on failure to surrender or give delivery of possession under Section 10(5). than "forceful dispossession under sub-section (6) of Section 10.
37. Requirement of giving notice under sub-sections (5) and (6) of Section 10 is mandatory. Though the word 'may' has been used therein, the word 'may' in both the sub-sections has to be understood as "shall" because a court charged with the task of enforcing the statute needs to decide the consequences that the legislature intended to follow from failure to implement the requirement. Effect of non-issue of Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 5/9/2024 11:57:15 AM 16 notice under sub-section (5) or sub-section (6) of Section 10 is that it might result the land holder being dispossessed without notice, therefore, the word 'may' has to be read as 'shall'.
41. Let us now examine the effect of Section 3 of Repeal Act 15 of 1999 on sub-section (3) of Section 10 of the Act. The Repeal Act, 1999 has expressly repealed Act 33 of 1976. The objects and reasons of the Repeal Act have already been referred to in the earlier part of this judgment. The Repeal Act has, however, retained a saving clause. The question whether a right has been acquired or liability incurred under a statute before it is repealed will in each case depend on the construction of the statute and the facts of the particular case.
42. The mere vesting of the land under sub-section (3) of Section 10 would not confer any right on the State Government to have de facto possession of the vacant land unless there has been a voluntary surrender of vacant land before 18.3.1999. The State has to establish that there has been a voluntary surrender of vacant land or surrender and delivery of peaceful possession under sub-section (5) of Section 10 or forceful dispossession under sub-section (6) of Section
10. On failure to establish any of those situations, the landowner or holder can claim the benefit of Section 4 of the Repeal Act. The State Government in this appeal could not establish any of those situations and hence the High Court is right in holding that the respondent is entitled to get the benefit of Section 4 of the Repeal Act.
20. In the case of Hariram (supra), it was held that after vesting of the land under Section 10(3) of the Principal Act for the purpose of delivery of possession of the surplus land, the compliance of Section 10(5) and 10(6) of the Principle Act is mandatory. The Apex Court Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 5/9/2024 11:57:15 AM 17 observed that sub-section (5) of Section 10 of the Principle Act, first time, speaks about "possession" using the word that "where any land is vested in the State Government under sub-section (3) of Section 10 the competent authority may by notice in writing, order any person, who may be in possession of it to surrender or transfer possession to the Stale Government or to any other person duly authorized by the State Government. In para-35 of the said judgment it has been observed that if de facto possession has already been passed on to the State Government by two deeming provisions under sub-section (3) of Section 10 there was no necessity of using the expression "where any land is vested under sub- section (5) of Section 10. Thus, surrendering or transferring of possession under sub-section (5) of Section 10 can be voluntary so that the person may get the compensation as provided under Section 11 of the Act at an early date. Once there is no voluntary surrender or delivery of possession, the State Government has to issue the notice in writing necessarily and serve under sub-section (5) of Section 10 to surrender or deliver possession. The said sub-section visualizes the situation of surrendering and delivering possession peacefully while sub-section (6) of Section 10 contemplates situation of forceful dispossession. Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 5/9/2024 11:57:15 AM 18
21. The judgment of Hariram (supra) has further been relied upon by a Three Judge Bench of the Apex Court in the case of D.R. Somayajulu, Secretary, Diesel Loco Shed and South Eastern Railway House Building Cooperative Society Limited Visakhapatnam and others vs. Attili Appala Swamy and others- (2015) 2 SCC 390 and after considering the effect of the provisions. Repeal Act restating the principle of the judgment of Hariram (supra)? the Apex Court remitted the matter to the High Court to determine the issue of taking over of actual physical possession on the date of commencement of the Repeal Act.
22. In the matter of taking over of the possession in the context of the Land Acquisition Act, the Apex Court in the case of Velaxan Kumar Versus Union of India and reported in (2015) 4 SCC 325 has observed that the manner to take over the possession of the land acquired must be the procedure enshrined for taking over of the possession as per the provisions of law. If the possession has not been taken following the procedure as laid down it is not amounting to delivery of possession. In the said judgment the Apex Court has also relied upon on the judgment of Sitaram Bhandar Society Versus Govt. (NCT of Delhi) reported in (2009) 10 SCC 501. The Apex Court in the case of Raghbir Singh Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 5/9/2024 11:57:15 AM 19 Sehrawat Versus State of Haryana and others reported in (2012) 1 SCC 792 has interpreted the word vesting of the land into the Government on taking of the possession. While dealing the said issue it is held by the Court that taking of possession means of taking the actual physical possession and not symbolic or paper possession. However, it is apparent that taking over of possession, means to take actual physical possession by following the procedure prescribed. Thus, looking to the statutory mandate as interpreted by the Apex Court expressing the method and manner compliance to the provisions of Section 10(5) and (6) of the Principal Act, it may be decided on the facts of the case that actual physical possession has been taken or not.
23. In para 11 of Ramprasad v. State of M.P., 2002 SCC OnLine MP 288 : (2002) 5 MP LJ 417 it has been held that the land reserved for agriculture purpose could not be treated as urban land as it was used for the purpose of agriculture also. Hence order declaring it as surplus is bad in law. Relevant para is extracted as under:-
"11. In Nand Kumar (supra) since the land was not used mainly for the purpose of agriculture it could not be held to be used for agriculture purpose. In the instant case it is apparent from the Khasras that the land mentioned above was used for the purpose of agriculture and this fact find support from P-14 and P-14-A issued by respondents that the land was mainly used for the purpose of agriculture and Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 5/9/2024 11:57:15 AM 20 the land use of S. No. 32,42,89/1,129,166 and part of S. No. 93/1 and 93/2 has been reserved for the purpose of agriculture in master, plan. Only part of S. No. 93/1, 93/2 has been reserved for road in master plan. Thus portion reserved for agriculture purpose could not be treated as urban land as it was used for the purpose of agriculture also. Hence order declaring it as surplus is bad in law."
24. In para-10 of Shanti Bai v. State of M.P., 2011 SCC OnLine MP 8 :(2011) 2 MP LJ 307 has been held that a land if being used mainly for the purpose of agriculture in an urban agglomeration it cannot be included within the ambit and scope of term "vacant land". Relevant para is extracted as under:-
"10. Needless to say that the petitioner has also filed a certificate of Gram Panchayat Tewar (Jabalpur) dated 18-9-2010 (Annexure P-14) stating therein that the land in question is being used for agricultural purpose and in this land there is a well in which an electric pump has also been installed. In the said certificate it has been mentioned that for last 40 years the land is being used for agricultural purpose. There is no document in rebuttal filed by the respondents in order to indicate that the land in question is not being used for agricultural purpose, therefore, looking to the rider envisaged in section 2(q) of the Act since the land is being used mainly for the purpose of agriculture in an urban agglomeration, hence it cannot be included within the ambit and scope of term "vacant land" as envisaged under the said definition."Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 5/9/2024 11:57:15 AM 21
25. In para-5 of Pt. Madan Swaroop Shrotiya Public Charitable Trust v. State of U.P., (2000) 6 SCC 325 it has been held Since there is nothing on record to indicate that the State had taken possession over the surplus land, the present proceedings have to be abated and are hereby abated under Section 4 of the Repeal Act.
26. In view of the aforesaid legal position and relevant sections of the Principle Act and Repeal Act, the facts of this case are required to be scrutinized.
27. Notice under Section 10(5) of the Principle Act (Ex. D-1/ P-4) was allegedly issued on 17.06.1994 to original appellant/plaintiff Daulatram for surrendering the possession of disputed lands, specific mention of period of 30 days for surrendering possession is not in the notice. Though this notice on the back of it bears signature allegedly of the original appellant/Daulatram between letter 'A to A' but the fact of service of this notice has not been accepted by the original appellant/Daulatram in his statement cross-examination paragraph 7 and even after that the respondents have not examined the process server Chainmain Bheru Lal, who allegedly served this notice on the appellants. In this notice Ex. D-1/ Ex. P-4, it is mentioned that possession of the disputed land will be taken on 07.07.1994 at 11.00. This fact has been admitted by Naib Tehsildar Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 5/9/2024 11:57:15 AM 22 Rajendra Pawar (DW-1) in cross-examination paragraph 10, that there is nothing on record and even this is not a case of respondents that in pursuance of notice Ex. D-1/P-4 possession of the disputed land was taken from the original appellant/Daulatram on 07.07.1994. Thus, it can be inferred that this notice was never acted upon by the respondents as per its contents.
28. Rajendra Pawar (DW-1) in paragraph 3 of his statement said that on 04.02.2000 in absence of the plaintiff and in presence of villagers, Nazul Inspector and Patwari, possession of the disputed land was taken and Kabza Panchnama (Ex. D/2) was prepared, which bears signature of the villagers. It is admitted that none of the villagers allegedly present at the time of taking possession of the disputed land on 04.02.2000 or ascribe of the Panchnama has been examined on behalf of the respondents. Proceedings which were drawn after taking possession of the disputed land have neither been produced nor proved by the respondents.
29. Appellant/Daulatram (PW-1) in his statement denied the fact of taking possession of the disputed land from him on 04.02.2000 are on any date before 17.02.2000 when Repeal Act came into force in the State of MP. It is to be noted here that after alleged issuance of notice Ex. D-1/ Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 5/9/2024 11:57:15 AM 23 Ex. P-4 on 17.06.1994 near about six years, no step was taken by the respondents to take possession of the disputed land but one fine morning on 04.02.2000 what prompted the respondents to take possession of disputed land even without informing the appellant in this regard has not been explained which fortifies the case of the appellants that neither on 04.02.2000 nor on any other date actual possession of disputed lands was ever taken from them, but just to circumvent the provisions of Sections 3 and 4 of the Repeal Act, this antedated Kabza Panchnama showing date 04.02.2000 has been prepared by the respondents behind the back of the appellant/Daulatram. Thus, it is clearly proved that Kabza Panchnama (Ex. D/2) is only eyewash and has no value in the eye of law. Section 10(6) of the Principle Act has also not been proved to have been complied with. Non observance thereof is fatal and in case the possession of disputed lands have not been taken following due procedure, it cannot be recognized under the law. The Apex Court has considered this in case of D.R. Somayajulu (Supra), Velaxan Kumar (Supra), Sitaram Bhandar Society (Surpa) and Raghbir Singh Sehrawat (Supra) and observed that if de facto possession has not been taken following the procedure, it cannot be accepted that the possession has been taken by the respondents complying mandatory provisions of law. Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 5/9/2024 11:57:15 AM 24
30. Learned First Appellate Court, in paragraph 13 of the impugned judgment, has mentioned that plaintiff (deceased/ Daulatram) in para 6 of his statement has admitted that on 04.02.2000 government has taken possession of the disputed land but this is a perverse findings because in para graph 6 of his statement, original appellant/plaintiff Daulatram has actually denied the fact of taking possession of the disputed land by the respondent/government.
31. Learned First Appellate Court further in paragraph 14 of the impugned judgment has observed that documents Ex P/9 to P/12 which have been tendered by the appellants, are not reliable as they have not been proved calling original record and by examining concerned officer. The First Appellate Court has also observed that these are not public documents. From perusal of these documents, it is apparent that Ex. D/9 is a report submitted by the Revenue Inspector to Tehsildar regarding possession of appellant/Daulatram on the disputed land. Ex. P/10 is Kabza Panchnama prepared by the Revenue Inspector on 08.12.2004. Ex. P/11 is also a report submitted by Revenue Inspector to Tehsildar on 05.09.2005 and Ex. P/12 is a panchanama prepared by Revenue Inspector on 03.09.2005 with regard to the possession of the appellants over the disputed lands. All these documents are certified copies obtained from the Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 5/9/2024 11:57:15 AM 25 office of head copyist, Bhopal. No evidence has been led by the respondents to disprove these documents or to prove that these documents are forged one. In view of the above, in considered opinion of this court, learned First Appellate Court fell into error in disbelieving these documents which amply prove the possession of the appellants over disputed lands even after adoption of Repeal Act in the State of MP on 17.02.2000. In such circumstances, when taking possession of the disputed lands by the respondents on or before 17.02.2000, is not proved and it is also not proved that compensation regarding the disputed lands was ever paid to the appellants by virtue of Sections 3 and 4 of the Repeal Act, the proceeding initiated under the Principle Act abated as held in Pt. Madan Swaroop Shrotiya Public Charitable Trust (Supra). Learned First Appellate Court in reversing the findings of the learned trial Court with respect to exemption of the disputed lands from the clutches of the the Principle Act has committed serious error of law and fact. Therefore, judgment and decree passed by the learned First Appellate Court cannot be sustained.
32. Now one more substantial question of law which needs to be dealt with is whether the disputed lands which were agricultural land could have been acquired in the teeth of the provision of Section 2(o) and Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 5/9/2024 11:57:15 AM 26 Section 2(q) of the Urban Land (Ceiling and Regulation) Act, 1976. Relevant sections 2(o) and 2(q) are extracted as under:-
" 2(o) "urban land" means,-
(i) any land situated within the limits of an urban agglomeration and referred to as such in the master plan; or
(ii) in a case where there is no master plan, or where the master plan does not refer to any land as urban land, any land within the limits of an urban agglomeration and situated in any area included within the local limits of a municipality (by whatever name called), a notified area committee, a town area committee, a city and town committee, a small town committee,a cantonment board or a panchayat, but does not include any such land which is mainly used for the purpose of agriculture.
Explanation.-For the purpose of this clause and clause (q),-
(A) "agriculture" includes horticulture, but does not include-
(i) raising of grass,
(ii) dairy farming,
(iii) poultry farming,
(iv) breeding of live-stock, and
(v) such cultivation, or the growing of such plant, as: may be prescribed;
(B) land shall not be deemed to be used mainly for the purpose of agriculture, if such land is not entered in the revenue or land records before the appointed day as for the purpose of agriculture:
Provided that where on any land which is entered in the revenue or land records before the appointed day as for the purpose of agriculture, there is a building which is not in the nature of a farm-house, then, so much of the extent of such land as is occupied by the building shall not be Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 5/9/2024 11:57:15 AM 27 deemed to be used mainly for the purpose of agriculture:
Provided further that if any question arises whether any building is in the nature of a farm- house, such question shall be referred to the State Government and the decision of the State Government thereon shall be final; (C) Notwithstanding anything contained in clause (B) of this Explanation, land shall not be deemed to be mainly used for the purpose of agriculture if the land has been specified in the master plan for a purpose other than agriculture;
2 (q) "vacant land" means land, not being land mainly used for the purpose of agriculture, in an urban agglomeration, but does not include-
(i) land on which construction of a building is not permissible under the building regulations in force in the area in which such land is situated;
(ii) in an area where there are building regulations, the land occupied by any building which has been constructed before, or is being constructed on, the appointed day with the approval of the appropriate authority and the land appurtenant to such building; and
(iii) in an area where there are no building regulations, the land occupied by any building which has been constructed before, or is being constructed on, the appointed day and the land appurtenant to such building:
Provided that where any person ordinarily keeps his cattle, other than for the purpose of dairy farming or for the purpose of breeding of live- stock, on any land situated in a village within an urban agglomeration (described as a village in the revenue records), then, so much extent of the land as has been ordinarily used for the keeping of such cattle immediately before the appointed day shall not be deemed to be vacant land for the purposes of this clause."Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 5/9/2024 11:57:15 AM 28
33. From perusal of the provisions, it is apparent that the land used mainly for the purpose of agriculture, shall not be 'vacant land' to attract provisions of the Principle Act. Evidence has been led by the appellants that the disputed lands are agriculture land on which they have been performing agricultural activities even after adoption of Repeal Act.
These lands are not vacant lands as provided in Section 2(q) of the Principle Act. No evidence in rebuttal has been laid by the respondent State. Judgment by Coordinate bench of this Court in Ramprasad (Supra) and Shanti Bai (Supra) also fortifies this view. Therefore, contention raised on behalf of the appellants that the disputed lands could not have been declared surplus by virtue of Section 2(o) and 2 (q) of the Principle Act has force and finds approval of this court. This question is answered accordingly in negative.
34. In view of the forgoing discussion, the substantial question of law No. 1 framed on the date of admission of this appeal is answered in negative because of the fact that this notice Ex. D-1/Ex.P-4 does not explicitly mention the direction to the appellant to surrender possession of the disputed lands within 30 days as required under Section 10(5) of the Principle Act and its service on the original appellant Daulatram is also not proved by preponderance of probabilities and substantial question of Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 5/9/2024 11:57:15 AM 29 law No.2 is also answered in negative because of the facts as mentioned hereinabove that in the instant case taking possession of the disputed lands before commencement Repeal Act in the State of MP on 17.02.2000 is not proved.
35. On due consideration, the IA No.8557/2024 is dismissed.
36. In the light of the aforesaid discussion, this appeal succeeds and is hereby allowed. The judgment and decree passed by the learned First Appellate Court is set aside and judgment and decree passed by the learned trial Court is affirmed. Looking to the facts and circumstances of the facts, parties are directed to bear their own costs.
(BINOD KUMAR DWIVEDI) JUDGE m/- LR-
Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 5/9/2024 11:57:15 AM