Gujarat High Court
Hirabhai Ganeshbhai Solanki Since ... vs Competent Authority And Ex- Officiao ... on 21 April, 2014
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/SCA/4859/1992 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4859 of 1992
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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HIRABHAI GANESHBHAI SOLANKI SINCE DECD. THROUGH LEGAL &
4....Petitioner(s)
Versus
COMPETENT AUTHORITY AND EX- OFFICIAO DEPUTY COLLECTOR, &
1....Respondent(s)
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Appearance:
Mr SH SANJANWALA, SR. ADVOCATE, WITH MR DILIP L KANOJIYA,
ADVOCATE for the Petitioner(s) No. 1.1.1 - 1.1.7 , 2 - 5
MR BHARAT VYAS, ASST. GOVERNMENT PLEADER for the Respondent(s)
No. 1-2
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 21/04/2014
Page 1 of 22
C/SCA/4859/1992 JUDGMENT
ORAL JUDGMENT
Rule. Learned AGP Shri Bharat Vyas waives service of rule for the respondents.
2. The present petition is filed by the petitioners under Articles 226 & 227 of the Constitution of India challenging the impugned order passed by the Urban Land Tribunal in Appeal No. 133/91 at Annexure-G dated 30.4.1992 and also the order at Annexure-C dated 23.6.1986 cancelling the exemption regarding the agricultural land on the grounds stated in the petition.
3. The facts of the case as stated and briefly summarized are that the petitioners are the family members who are nationals and citizens of India having agricultural land cultivated by them bearing Survey No. 211/2/2 and 215/1 admeasuring about 4356 and 1619 sq.mtrs. The exemption was granted under sec. 20 of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as 'the ULC Act') as per the order at Annexure-A. However, the same was withdrawn on the ground that it was required for Industrial Training Institute for which the order at Annexure-C dated 23.6.1986 was passed. It was carried further and the petitioners have filed Form No. 6 and thereafter necessary documents contending that the exemption granted under sec. 20 is deemed to have continued as the possession is not taken. However, the order at Annexure-D came to be passed by respondent No.1 declaring it to be an excess vacant land. The order passed by respondent No.1 Competent Authority was carried by way of Appeal No. 133/91 before the Urban Land Tribunal contending, inter alia, that the land in question were given to the father of the petitioners by Bhoodan Samiti for the personal cultivation and in fact it has been cultivated by the petitioners who are family members as an HUF land. It was submitted that the petitioners are economically backward and belong to the backward class and therefore Page 2 of 22 C/SCA/4859/1992 JUDGMENT the said order passed be set aside. The Tribunal dismissed the appeal vide its order dated 30.4.1992.
4. The present petition has been filed on the grounds stated in the petition, inter alia, that the Authority and the Tribunal have failed to appreciate that it was a land given to the father of the petitioners by Bhoodan Samiti for the purpose of personal cultivation as member of the backward class. It was also submitted that the decision for withdrawal of exemption granted under sec. 20 of the Ceiling Act was erroneous as, when the land is cultivated and as the possession is not taken for a long period, the exemption is deemed to have continued and there is no public purpose. It is also contended that residential houses are constructed (58.52 sq.mtrs.) and it cannot be said that it is vacant land as contemplated under sec. 2(q) of the Act. It is contended that such houses are constructed prior to the ULC Act came into force in 1976 and therefore it would be exempted for the purpose of ceiling. It is also contended that the Tribunal failed to appreciate that when the order for exemption was reviewed for withdrawal of exemption, an opportunity of hearing has not been given and the Tribunal ought to have remanded the case back to the Authority.
5. It is required to be mentioned that the petition was initially dismissed as per the order passed by the High Court (Coram: A.P. Ravani, J.) dated 3.9.1992. Letters Patent Appeal No. 2336 of 2009 was preferred which came to be allowed vide order of the Division Bench consisting of SJ Mukhopadhyaya, CJ & Akil Kureshi, J. dated 5.3.2010 and the said order was set aside and the matter was remanded back to the Single Judge. It is in this background the matter has been placed for hearing afresh.
Page 3 of 22C/SCA/4859/1992 JUDGMENT
6. The petitioners also filed Civil Application No. 12036 of 2010 for amendment which was granted by the High Court (Coram: KS Jhaveri, J.) vide order dated 7.10.2010.
7. In the amendment it has been contended that at the time of withdrawal of exemption under sec. 20 opportunity of hearing ought to have been given and there was no breach of any of the conditions for grant of exemption and therefore it could not have been withdrawn without providing an opportunity of hearing. It is therefore contended that even if there is a condition referring to any such aspect of public purpose it would not be valid. It is contended that there is no allotment and there cannot be said to be any public purpose. It is contended that in fact the public purpose is changed inasmuch as earlier as per the order at Annexure-C it was required for the ITI and thereafter it is stated that now it is required for the Housing Board. In fact, no such public purpose is in existence.
8. It is specifically contended that the petitioners are entitled to the benefit of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as 'the Repeal Act') inasmuch as the petitioners were in actual physical possession of the land in question on 30.3.1999 when the Repeal Act came into force and it has been contended that the panchnama which is claimed to have been made for taking over the possession is illegal as the possession is said to have been taken over without notice under sec. 10(5) on all the co-owners. It is contended that the respondents are put to strict proof about service of notice under sec. 5 on 16.6.1991 as claimed. It is also contended that in view of the repeal of the Act, when the possession is not taken over, the proceedings will stand abated. It is also contended that since it is not a vacant land defined under sec. 2(g) of the Act, the ULC Act would not be applicable and the part of the land has to be excluded for the purpose of ceiling.
Page 4 of 22C/SCA/4859/1992 JUDGMENT
9. The reply has been filed by respondent No.1 contending, inter alia, that the land cannot be said to be an ancestral property. It is contended that since it was granted to the petitioner by Bhoodan Samiti it is not for the public purpose and therefore when it is required for public purpose, the order reviewing the exemption under sec. 20 cannot be questioned. It is contended that the land has been declared surplus on the basis of the form filled up by the petitioner Shri Hiarabhai Solanki under sec. 6(1) of the ULC Act and after giving and an opportunity of hearing and considering the documents it has been declared as surplus land. It is also contended that notice as required under sec. 10(5) was issued on 16.7.1991 which has been duly served upon the heirs of the deceased Shri Hirabhai Solanki and possession of the land in question as surplus land was taken in presence of panchas on 18.6.1992 as per the panchnama produced with the affidavit-in-reply at R-VI. It is also contended that the land has been allotted to the Housing Board by the Competent Authority and the contentions raised by the petitioners regarding the abatement in light of repeal of the ULC Act are misconceived. It is specifically contended that since the possession has been taken over by the government on 18.6.1992 after following the procedure, the land is deemed to have been vested in the Government and the repeal of the principal Act shall not affect the same.
10. Heard learned Sr. Counsel Shri SH Sanjanwala appearing with learned advocate Shri Dilip Kanojiya for the petitioners and learned AGP Shri Bharat Vyas for the respondents.
11. Learned Sr. Counsel Shri Sanjanwala submitted that as could be seen from the background of the facts narrated in detail, the possession could not have been taken. He referred to the facts about the land which was given by the Bhoodan Samiti for personal cultivation and it was Page 5 of 22 C/SCA/4859/1992 JUDGMENT being cultivated by the petitioners. He also submitted that when the exemption under sec. 20 was sought to be recalled or withdrawn an opportunity was not given and therefore the petition was filed. He has also submitted that in any case in light of the subsequent development regarding repeal of the Act if actual physical possession is not taken, the petitioners are entitled to the benefit of the Repeal Act. For that purpose, learned Sr. Counsel Shri Sanjanwala referred to the Repeal Act. He submitted that though the possession is claimed to have been taken, no notice as required under the provisions of the ULC At is served upon all the owners or the joint owners. He submitted that though it is claimed that notice is served upon the petitioners in July 1991, there is no material to suggest that it has been served upon all the co-owners and in fact it has not been served. For that purpose he referred to the notice and the reply.
12. Learned Sr. Counsel Shri Sanjanwala referred to the provisions of the ULC Act and pointedly referred to the procedure which is required to be followed referring to the provisions of sec. 10. He emphasised and submitted that sec. 10 provides for different stages and it clearly provides that notice under sec. 10(5) is required to be given for the purpose of handing over voluntary, peaceful possession by the land owner. Thereafter if the possession is not handed over, the authorities are empowered to take forcible possession after following the procedure of notice. He referred to the papers and submitted that the notice under sec. 10(5) is issued and if in fact the possession is not taken on the day declared, then, again, the notice is required to be served. Learned Sr. Counsel Shri Sanjanwala submitted that considering the time-lag either fresh notice under sec. 10(5) will have to be issued if the possession is not taken or for forcible possession notice under sec. 10(6) is required to be issued before the person could be dispossessed. He emphasised that as the actual physical possession is not taken either in 1991 or thereafter the petitioners are entitled to get the benefit under the Repeal Act. Learned Page 6 of 22 C/SCA/4859/1992 JUDGMENT Sr. Counsel Shri Sanjanwala strenuously submitted that the court may consider whether the notice is served on all the co-owners and whether as required under the provisions of sec. 10(3) and 10(5) the notice is required to be served to all the co-owners or not.
13. In support of his contentions, Learned Sr. Counsel Shri Sanjanwala has referred to and relied upon the judgment of the Hon'ble Apex Court in the case of State of Uttar Pradesh v. Hari Ram, reported in (2013) 4 SCC 280, and emphasised the observations made in the judgment referring to what would be the effect of the repeal of the Act. Learned Sr. Counsel Shri Sanjanwala has emphasised the observations in para 39, "39. The abovementioned directives make it clear that sub-section (3) takes in only de jure possession and not de facto possession, therefore, if the landowner is not surrendering possession voluntarily under sub-section (3) of Section 10, or surrendering or delivering possession after notice under Section 10(5) or dispossession by use of force, it cannot be said that the State Government has taken possession of the vacant land."
Similarly, he has emphasised referring to the observations in para 42 that "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 ha 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."
Learned Sr. Counsel Shri Sanjanwala has, therefore, emphasised that the present petition may be allowed.
14. Learned Sr. Counsel Shri Sanjanwala has further referred to and Page 7 of 22 C/SCA/4859/1992 JUDGMENT relied upon the judgment of the Hon'ble Apex Court in the case of Ritesh Tewari and anr. v. State of Uttar Pradesh and ors., reported in (2010) 10 SCC 677, and has emphasised the observation with regard to equitable jurisdiction and exercise of discretion. He submitted that in that case also the dispute regarding the ceiling were pending before the courts and the court has observed that substantial justice should be done. He submitted that observations have been made with regard to the indifferent attitude of the government with regard to implementation of the law or the possession. He emphasised the observations made in para 15, "15. We find full force in the submissions so made by Shri Jayant Bhushan to a certain extent, and hold that all proceedings pending before any court/authority under the 1976 Act, stood abated automatically on coming of the 1999 Act into force, provided the possession of the land involved in a particular case had not been taken by the State. Such a view is in consonance with the law laid down by this Court in Pt. Madan Swaroop Shrotiya Public Charitable Trust v. State of U.P. [(2000) 6 SCC 325].....
15. Learned Sr. Counsel Shri Sanjanwala submitted that therefore the issue is whether the possession is taken and whether the procedure required is followed or not. He submitted that the notice under sec. 10(5) and 10(6) are mandatory as observed by the Hon'ble Apex Court in the case of State of Uttar Pradesh v. Hari Ram (supra). Similarly, he submitted that as the notices are required and actual physical possession is not taken after following the procedure, the petitioners are entitled to the benefit of the Repeal Act. He submitted that the question which is required to be considered is whether the notice is required to be issued to all the co-owners who are having interest in the land and whether they are served with the notice at all stages or not. He emphasised that this provision has been interpreted to be a mandatory provision and unless it is clearly established that the possession is taken over before the Repeal Act, the benefit of the Repeal Act would go to the petitioners. He submitted that mere paper panchnama or mere claim for possession de hors the actual physical possession cannot be believed. Learned Sr. Page 8 of 22 C/SCA/4859/1992 JUDGMENT Counsel Shri Sanjanwala submitted that in such cases the court is required to consider whether the actual physical possession is taken over or not.
16. In support of his submission, Learned Sr. Counsel Shri Sanjanwala has referred to and relied upon the judgment of the Hon'ble Apex Court in the case of Raghbir Singh Sehrawat v. State of Haryana and ors., reported in (2012) 1 SCC 792, and submitted that referring to the same aspect of taking of the possession the Hon'ble Apex Court has made the observations that actual physical possession should have been taken and not a symbolic possession on paper. He submitted that observations have been made that the court is required to consider while deciding such an issue of possession when there is standing crop and the revenue record showing the possession and when the possession is said to have been taken the court has to consider whether the delivery of possession was there and whether there was an actual possession taken in the absence of any notice to the land owners. He therefore submitted that in this judgment the Hon'ble Apex Court has dealt with the aspect of actual physical possession. He, referring to the observations, has strenuously submitted that what is required to be considered is the actual possession and unless the actual possession is shown a mere paper showing symbolic possession would not be sufficient and inference could be drawn that possession could not have been taken.
17. Learned Sr. Counsel Shri Sanjanwala has also referred to and relied upon the judgment of this High Curt reported in 2006(3) GLH 487 in the case of Indrajitsing P. Geel v. Competent Authority & Deputy Collector and anr., and submitted that in similar circumstances when the delivery of the possession of the land has not been taken after the notice, it has been held that the possession cannot be taken away and the provisions are required to be followed. He submitted that therefore the proceedings Page 9 of 22 C/SCA/4859/1992 JUDGMENT were held to be abated.
18. Learned AGP Shri Bharat Vyas referred to the papers at length and also referred to the provisions of the ULC Act. He pointedly referred to the affidavit-in-reply to support his submission regarding the procedure and the notice having been served way back in 1991. He therefore submitted that as the notice under sec. 10(5) is served on 16.7.1991, the submissions are ill-founded. He submitted that when the notice as required under sec. 10(5) has been served and possession has been taken over, the provisions of the Repeal Act would not be attracted. He referred to the provisions of the Repeal Act and submitted that it is only when the actual physical possession is not taken over the proceedings will stand abated and the benefit could go to the petitioners. However, he submitted that in the facts of the present case the actual possession has been taken over after service of the notice under sec. 10(5). When the petitioners fail to hand over peaceful possession forcible possession could be taken under sec. 10(6) of the Act. He therefore submitted that the panchnama has also been made regarding taking over the possession which cannot be now challenged and therefore the present petition may not be entertained.
19. Learned AGP Shri Vyas has submitted that exemption can be withdrawn if the land is required for any public purpose. He submitted that even if it is given by Bhoodan Samiti, but when the land is required for a public purpose the same could be reserved for public purpose and there is no ban or prohibition. He has also submitted that the provisions of the Repeal Act would not be applicable. He referred to sec. 3 of the Repeal Act and submitted that as provided if the land has been declared as excess and vacant land and has been vested in the State Government under sub-sec. (3) of Section 10 of the Act, and if the possession of the land is taken over by the State Government or on behalf of the Page 10 of 22 C/SCA/4859/1992 JUDGMENT Government, then, repeal of the principal Act shall not affect. Therefore, he submitted that not only the land has vested in the Government as provided under sec. 10(3) of the Act but the possession has also been taken over in the year 1991 and therefore the Repeal Act would not be applicable.
20. Learned Sr. Counsel Shri Sanjanwala, in rejoinder, again, made his submission referring to the judgment of the Hon'ble Apex Court in the case of State of Uttar Pradesh v. Hari Ram (supra).
21. In view of these rival submissions, it is required to be considered whether the present petition can be entertained and allowed or not.
22. As discussed referring to the background of facts, the petitioners have claimed that the land originally belonged to Shri Hirabhai Solanki who died. The late Shri Hirabhai Solanki had filed Form No. 6 under the ULC Act. It is also a fact that the land was granted to the original owner by Bhoodan Samiti as he belonged to the backward class. Therefore, when the land was given to deceased Shri Hirabhai Solanki for personal cultivation under a scheme by Bhoodan Samiti, whether it would vest and whether it would be a personal land or ancestral land, and even if it was given by Bhoodan Samiti, whether it could have been reserved for public purpose cancelling/withdrawing the exemption granted under sec. 20 of the Ceiling Act will have to be considered.
23. As it transpires from the record, the land was used by the owner for the purpose of agricultural cultivation and when it was sought to be reserved for ITI as a public purpose, the hearing is not afforded to the petitioners. Therefore, assuming that the land which was given to the deceased Hirabhai Solanki by Bhoodan Samiti could be reserved for public purpose, it has to be subject to the procedure. The exemption has Page 11 of 22 C/SCA/4859/1992 JUDGMENT been granted under sec. 20 of the Act with a condition that in case of breach of any of the conditions, the exemption could be withdrawn. In other words, it is the non-compliance or breach of the condition which would be a ground for withdrawal, and not otherwise. Therefore, when there is no breach of the condition regarding the exemption under sec. 20 of the ULC Act, the exemption could not have been withdrawn even for the public purpose. Therefore, the submission made by learned Sr. Counsel Shri Sanjanwala that when the land itself is given by Bhoodan Samiti it could not have been reserved for public purpose may not be accepted, however, with a rider that even if such a land is given to an individual, it becomes his individual holding and could also be subject to th same law including the reservation for public purpose. However, in that case, it will also have to follow the same procedure for the purpose of reservation, meaning thereby, at least an opportunity hearing, inviting objections for the same. As it transpires from the record, the opportunity is not given to the heirs of late Shri Hirabhai Solanki.
24. In any case, the time has passed. The claim made by the respondent Government that the notice as required under sec. 10(3) and 10(5) has been given after the land was declared as surplus and for withdrawal of exemption under sec. 20 the present petition is not maintainable requires a closer scrutiny. The emphasis is given by the learned AGP on actual physical possession having been taken over forcibly by the Government after the notice under sec. 10(5) was served upon the petitioner on 16.7.1991 when the owner failed to hand over the possession. Therefore, the issue is whether the possession can be said to have been taken over legally and what would be the consequences if the possession is not handed over by the owner voluntarily after the notice under sec. 10(5) of the Act.
25. As could be seen from the record, it has two aspects:
Page 12 of 22 C/SCA/4859/1992 JUDGMENT
(a) whether the notices are served to all the heirs?
(b) whether the notice under sec. 10(6) would be required before
forcible possession is taken over even though the owner has not complied with the notice under sec. 10(5) regarding handing over the possession voluntarily?
26. In the facts of the present case, it is not in dispute that no notice under sec. 10(6) before forcible possession was taken is issued to the petitioners. Further, there is an issue joined with regard to issuance and service of notice under sec. 10(5). The provisions of Rule 5 of the Urban Land (Ceiling and Regulation) Rules, 1976 provide, "5. Particulars to be contained in draft statement as regards vacant lands and manner of service of the same. - (1) Every draft statement prepared under sub-section (1) of Sec. 8 shall contain the particulars specified in Form III.
(2) (a) The draft statement shall be served, together with the notice referred to under sub-section (3) of Sec. 8 on -
(i) the holder of the vacant lands, and
(ii) all other persons, so far as may be known, who have, or are
likely to have, any claim to, or interest in the ownership, or possession, or both, of the vacant lands, by sending the same by registered post addressed to the person concerned - ---
In other words, notice has to be served before it could be declared as surplus under the Act. Further, submission is made by learned Sr. Counsel Shri Sanjanwala that actual physical possession is not taken when the Repeal Act came into force and therefore the petitioners are entitled to get the benefit of the Repeal Act.
Page 13 of 22C/SCA/4859/1992 JUDGMENT
27. Section 4 of the Repeal Act provides, "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."
In other words, it clearly provides that the proceedings shall stand abated when the Repeal Act was brought into force.
28. As could be seen from the record, the proceedings by way of appeal and thereafter the present petition are pending questioning the issues raised under the Act regarding whether the land in question could be declared as surplus referring to the provisions of the ULC Act, the definition of the vacant land and also other contentions which have been raised. In any view of the matter, the actual physical possession must have been taken. As it transpires from the affidavit-in-reply, the notice under sec. 10(5) is said to have been served on 16.7.1991 and the panchnama has been made for taking over the possession. It is in this background the moot question whether the actual physical possession can be said to have been taken or not is required to be considered.Page 14 of 22
C/SCA/4859/1992 JUDGMENT
29. The submissions made by both the sides are required to be considered in background of the observations made in the judgment of the Hon'ble Apex Court in the case of State of Uttar Pradesh v. Hari Ram (supra) where in para 36 referring to forceful dispossession the Apex Court has clearly referred to the two situations at the stage of notice under sec. 10(5) and the consequences thereafter as required under sec. 10(6).
It is observed, "...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 to only in a situation which falls under sub-section (6) and not under sub-section (5) of 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), then "forceful dispossession" under sub-section (6) of Section 10."
30. The Hon'ble Apex Court in a judgment reported in (1976) 1 SCC 700 in case of Balwant Narayan Bhagde v. M.D. Bhagwat has made the observation, "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 land, since all interests in the land are sought to be acquired by it. There can be no question of taking 'symbolical' possession in the sense understood by judicial decisions under the Code of Civil Procedure. Nor would possession merely on paper be enough. What the Act contemplates as a necessary condition of vesting of the land in the Government is the taking of actual possession of the land. 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 act would be sufficient to constitute taking of the possession of land........."
31. Therefore, the moot question is that there cannot be a straitjacket formula for deciding whether the actual physical possession is taken or Page 15 of 22 C/SCA/4859/1992 JUDGMENT not as it depends upon the facts and circumstances in a given case and normally the criteria which is required to be adopted is also considered by the pronouncements of the Hon'ble Apex Court. In a judgment of the Hon'ble Apex Court reported in (2011) 5 SCC 394 in the case of Banda Development Authority v. Moti Lal Agarwal, referring to the case under the Land Acquisition Act, what would be the criteria suggesting taking over possession has been discussed and stated and which is also quoted subsequently in a judgment reported in the case of Raghbir Singh Sehrawat (supra).
32. Therefore, the moot question is whether the actual physical possession has been taken over in the present case. The submissions made by learned AGP Shri Vyas referring to th aspect of vesting of the land absolutely also requires a closer scrutiny inasmuch as, though the statute provides for vesting of the land, in light of the statutory provisions the real controversy is on cases which have cropped up regarding the benefit under the Repeal Act. Therefore, there is no doubt that by operation of law in light of the statutory provision once the land is declared surplus it may vest in the government as per the statutory provision. However, for various reasons though the ULC Act has been brought into force and attempts have been made to implement it as a social piece of legislation the fact remains that for the reasons which have been highlighted in the Repeal Act ultimately the Act has been repealed. Therefore, it is such cases in which by operation of the ULC Act the steps were sought to be taken and entangled in the litigation and before finalisation or the outcome when the Repeal Act has been brought into force, it takes in its purview the situations carved out in the Repeal Act. The provisions of the Repeal Act provide that when by operation of the ULC Act the property is vested in the government pursuant to the steps taken under the Act and when the land has been declared surplus and finally vested in the government (with taking over the possession) it Page 16 of 22 C/SCA/4859/1992 JUDGMENT would be a different situation as nothing would remain to survive. Therefore, the action taken would be saved as provided in sec. 3 of the Repeal Act.
33. Provisions of sec. 4 of the Repeal Act provide for abatement of the legal proceedings and the proviso to sec. 4 of the Repeal Act clearly provides that insofar as such proceedings related to the land in question where the possession has been taken over would not apply and the benefit under sec. 4 of abatement of the legal proceedings would not be available. In other words, where the actual physical possession has been taken over by the government finally before the Repeal Act came into force such persons would not get the benefit of the Repeal Act. On the other hand, where the legal proceedings are pending and the same will stand abated meaning thereby where the possession is not taken over the proceedings will stand abated and therefore the persons will have the benefit of the Repeal Act.
34. In the facts of the present case, therefore, since the possession cannot be said to have been taken validly as required under the law following the procedure of not only notice at the earlier stage but even at the stage of sec. 10(3), 10(5) and 10(6) the possession cannot be said to have been taken over as sought to be canvassed. As discussed hereinabove referring to the observations of the Hon'ble Apex Court, mere paper possession will not be sufficient. Therefore, what is required to be considered is whether actual physical possession is taken over. Though the possession is said to have been taken over in 1991, the fact remains that as could be seen from the record including the revenue record, the land continues to be shown in the name of the petitioner with other entries regarding cultivation and from the record the government is said to have again allotted the same land to the Housing Board. Admittedly, the possession has not been handed over to the Housing Page 17 of 22 C/SCA/4859/1992 JUDGMENT Board. Therefore, it is merely a change of the public purpose or taking and handing over the possession symbolically. Further, there is no dispute with regard to the fact that after the notice under sec. 10(3) is issued, the notice under sec. 10(5) of the Act has been issued to the heirs of the owner. The provisions of sec. 10(5) refer to voluntary handing over the possession in pursuance of such notice. The provisions of sec. 10(6) provide for forcible taking over the possession when the owner fails to comply with the notice under sec. 10(5) for handing over the possession voluntarily.
35. This aspect has no longer been res integra when the Hon'ble Apex Court in a judgment in the case of State of Uttar Pradesh v. Hari Ram (supra) referring to the same provision of the ULC Act has clearly made the observations. The Hon'ble Apex Court has considered at length the same contentions with regard to "vesting of land pursuant to the statutory provisions of the Act" and having discussed this aspect it has been specifically observed, "vest"/"vested" may or may not include "transfer of possession", the meaning of which depends on the context in which it has been placed and the interpretation of various other related provisions."
Again, referring to the provisions of sec. 10(3) observations have been made in para 31 and 32.
"...The purpose of the Act is to impose ceiling on vacant land, for the acquisition of land in excess of the ceiling limit thereby to regulate construction on such lands, to prevent concentration of urban lands in the hands of a few persons, so as to bring about equitable distribution. For achieving that object, various procedures have to be followed for acquisition and vesting. When we look at those words in the above setting and the provisions to follow such as sub-sections (5) and (6) of Section 10, the words "acquired" and "vested" have different meaning and content. Under Section 10(3), what is vested is de jure possession not de facto, for more reasons than one because we are testing the expression on a statutory hypothesis and such an hypothesis can be carried only to the extent necessary to achieve the legislative intent."Page 18 of 22
C/SCA/4859/1992 JUDGMENT Thereafter it has been referred to the peaceful possession under sec. 10(5) and forcible possession under sec. 10(6) and observations have been made. It is observed, "The 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 notice under sub-section (5) or sub-section (6) of Section 11 is that it might result in the landholder being dispossessed without notice, therefore, the word "may" has to be read as "shall".
Further it is observed, "The abovementioned directives make it clear that sub-section (3) takes in only de jure possession and not de facto possession, therefore, if the landowner is not surrendering possession voluntarily under sub-section (3) of Section 10, or surrendering or delivering possession after notice, under Section 10(5) or dispossession by use of force, it cannot be said that the State Government has taken possession of the vacant land." (emphasis supplied) It has been therefore observed that "On failure to establish any of those situations, the landowner or holder can claim the benefit of Section of the 4 of the Repeal Act."
36. Further, in another judgment of the Hon'ble Apex Court reported in 2014 (2) SCALE 286 in the case of Gajanan Kamlya Patil v. Addl. Collector & Comp. Auth. & ors., the Apex Court has focused on the same issue with regard to the procedure as required to be followed under sec. 10(5) and 10(6) of the Act vis-a-vis the claim for the benefit under the Repeal Act by the owner. The issue was whether the possession been handed over or not. The Hon'ble Apex Court referring to the same issue and referring to both the earlier judgment in the case of State of Uttar Pradesh v. Hari Ram (supra) ands also the judgment in the case of Ritesh Page 19 of 22 C/SCA/4859/1992 JUDGMENT Tewari (supra) has clearly observed that it is only in case of failure to comply with the notice under sec. 10(5) regarding voluntary handing over peaceful possession the recourse can be had for forceful dispossession under sub-sec. (6) of sec. 10 of the Act. It has been observed that "if the possession has not been surrendered, the possession would be taken by the application of necessary force. For taking forceful possession certain procedure has to be followed."
37. A useful reference can also be made to the judgment of the Hon'ble Apex Court in the case of Raghbir Singh Sehrawat (supra) where observations have been made. Again, the Hon'ble Apex Court in the case of Ritesh Tewari and anr. (supra) has made observations referring to the exercise of discretion under Art. 226 and equitable jurisdiction while considering the tenancy laws including the ULC Act. The Hon'ble Apex Court in similar circumstances has made observations with regard to taking over the possession de facto. It has been observed, "15. We find full force in the submissions so made by Shri Jayant Bhushan to a certain extent, and hold that all proceedings pending before any court/authority under the 1976 Act, stood abated automatically on coming of the 1999 Act into force, provided the possession of the land involved in a particular case had not been taken by the State. Such a view is in consonance with the law laid down by this Court in Pt. Madan Swaroop Shrotiya Public Charitable Trust v. State of U.P. [(2000) 6 SCC 325], Ghasitey Lal Sahu v. Competent Authority [(2004) 13 SCC 452, Mukarram Ali Khan v. State of U.P. [(2007) 11 SCC 90 and Sulochana Chandrakant Galande v. Pune Municipal Corporation [(2010) 8 SCC
467."
38. In this judgment the Hon'ble Apex Court has considered the implications with regard to the provisions of sec. 10 of the Act and it has been observed, "The power under Article 226 of the Constitution is discretionary and supervisory in nature....... The extraordinary power in the writ jurisdiction does not exist to set right mere errors of law which do not occasion any substantial injustice. A writ can be issued only in Page 20 of 22 C/SCA/4859/1992 JUDGMENT case of a grave miscarriage of justice or whee there has been a flagrant violation of law but also to advance justice and not to thwart it. The Constitution does not place any fetter on the power of the extraordinary jurisdiction but leaves it to the discretion of the court...."
39. Again, this very aspect has been considered in the judgment of the High Court in the case of Indrajitsing P. Geel (supra) when the High Court referring to this very issue regarding the procedure and de facto possession pursuant to the notice under sec. 10(5) and 10(6) has made the observations relying upon the same judgment of the Hon'ble Apex Court and considering the statutory provisions of the Repeal Act and the requirement of notice under sec. 10(5) and sec. 10(6) of the Act.
40. One more aspect which is required to be considered is the approach in such cases. It is well accepted that the laws regarding the property are considered an ex-proprietary legislation and therefore is required to be considered strictly. Such laws regarding land reforms have been interpreted and considered by the Hon'ble Apex Court and it has been accepted that such ex-proprietary legislation even if it is intended to achieve a social object has to be construed strictly inasmuch as it deals with the right of the owner to have his property. Therefore, the balance has to be struck between the right of an individual citizen regarding the property, though it may not be a fundamental right, and the collective needs of the society for which such laws are made as a social piece of legislation.
41. It is in this background any such law providing for a right of acquisition has to follow strictly the minimum requirements or the procedure to safeguard the interest of the individual. It is also well settled that when a statutory authority is required to do a thing in a particular manner the same must be done in that manner as observed in a judgment in the case of Bhavnagar University v. Palitana Sugar Mill (P) Page 21 of 22 C/SCA/4859/1992 JUDGMENT Ltd., reported in (2003) 2 SCC 111.
42. Therefore, in view of the discussion made hereinabove with regard to the procedure and the notice under sec. 10(5) of the Act and also the notice under sec. 10(6) or any procedure before forcible possession could be taken over, it cannot be said that actual physical possession was taken over by the government as claimed in the affidavit-in-reply. In the circumstances, since the litigation as stated in detail has been pending since 1992 either before the Authority or before the court including this Court, the submissions with regard to taking over actual physical possession cannot be sustained and the provisions of the Repeal Act would be attracted.
43. Therefore, the order dated 23.6.1986 at Annexure-C regarding withdrawal of the order of exemption and also the order passed by the Urban Land Tribunal in Appeal No. 133/91 dated 30.4.1992 at Annexure-G are hereby quashed and set aside. Further, the declaration as prayed regarding entitlement to the benefit of the Repeal Act since the possession has not been legally and validly taken over deserves to be granted. The petitioners are entitled for the benefit of the Repeal Act.
44. The petition accordingly stands allowed. Rule is made absolute.
(RAJESH H.SHUKLA, J.) (hn) Page 22 of 22