Madhya Pradesh High Court
Ramprasad Patel vs Secretary The State Of Madhya Pradesh on 28 January, 2022
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1 Writ Petition No.7130/2009
THE HIGH COURT OF MADHYA PRADESH
JABALPUR
Writ Petition No.7130/2009
Ram Prasad Patel and Another
Versus
State of M.P. and Another
Date of Order 28/01/2022
Bench Constituted Single Bench
Order delivered by Hon'ble Mr. Justice Sanjay Dwivedi
Whether approved No
for reporting
Name of counsel for For petitioners: Shri Rohit
parties Raghuvanshi, Advocate
For Respondents/State: Shri S.K.
Shrivastava, Govt. Advocate.
Law laid down -
Significant Para -
Nos.
Reserved on : 24.11.2021
Delivered on : 28.01.2022
(O R D E R)
1. The petitioners have filed this petition under Article
226 of the Constitution of India challenging the legality,
validity and propriety of the order dated 27.05.2009
(Annexure P/2) passed by the respondent no.2 in Revenue
Case No. 67/A-90/82-83, whereby the respondent no.2 has
rejected an application submitted by the petitioners. In the
said application, the petitioners claimed that in place of name
of the State illegally recorded in respect of the land situated
at Village Purwa, bearing N.B. No. 162, Patwari Halka No.
28/33, Khasra No. 662/15, area measuring 70724 hectares,
the entry be corrected and the name of the petitioners be
2 Writ Petition No.7130/2009
recorded. The respondent no.2 rejected the said application
mentioning therein that the land in question has been vested
in the Government and in view of the proceeding initiated
under the provisions of Urban Land Ceiling and Regulation
Act, 1976 (for brevity, 'Act of 1976') which has been
repealed by the Urban Land Ceiling and Regulation (Repeal)
Act, 1999 (for brevity, 'Act of 1999'), there is no such
provision in the Repeal Act, when possession has already
been taken of the land, the said land shall be released. It is
also mentioned in the order that as per the provisions of
Section 4 of the Act of 1999, if proceeding in relation to the
original Act of 1976 is pending before any Court or Tribunal
or against any officer then only provisions of Act of 1999
could be applied, otherwise the provisions of the Act of 1999
would not affect any of the proceeding already completed.
2. The petitioners have claimed that possession of the
land has never been taken from them by complying the
provisions of Section 10 of the Act of 1976 and they are still
in possession of the said land. Accordingly, as per Section 4
of the Act of 1999, the proceedings initiated under the
provisions of Act of 1976 are liable to be quashed and the
revenue record be accordingly corrected by deleting the name
of State Government.
3. The petitioners by this petition are claiming that the
respondents under the provisions of the Act of 1976 initiated
proceedings against the land of mother of the petitioners but
without following the mandatory provisions and without
giving any notice under Section 10(5) and 10(6) of the Act of
1976, the possession of the land in question has shown to
have been taken and unilaterally corrected the revenue record
showing that the land is vested in the State and as such,
owned by the State Government whereas the petitioners are
3 Writ Petition No.7130/2009
still in possession of the land and, therefore, after
enforcement of the Act of 1999, proceedings of ceiling under
the provisions of the Act of 1976 are said to be abated and
consequently revenue record is required to be corrected.
Along with the petition, the petitioners have also filed several
judgements of the High Court in which the authority has
rejected the application filed by the land owners without
making any enquiry to ascertain as to whether the land owner
still holds the possession or not and that order of the
authority was set aside directing him to make proper enquiry.
As per the petitioners, the order impugned in this petition is
also of the same nature and deserves to be set aside as the
land in question is still in possession of the petitioners.
4. Respondents have filed the reply stating therein that
possession of the land is taken by them in proper manner by
complying the mandatory requirement of Section 10 of the
Act of 1976 and after such a long time, that too after
enforcement of the Repeal Act, the petition is not
maintainable.
5. To resolve the controversy involved in the matter, the
necessary facts in brief are that: mother of the petitioners
Late Sona Bai was the original owner of the agricultural land
bearing Khasra No. 662/15, area measuring 0.809 hectares
situated at Garha Purwa, N.B. No. 162, Patwari Halka No.
28/33, Revenue Circle Jabalpur, Tahsil and District Jabalpur.
Out of the total land belonging to mother of the petitioners,
70724 sq.ft. of land was declared surplus under the
provisions of the Act, 1976 and draft statement was
published on 14.11.1980.
6. As per learned counsel for the petitioners, no
demarcation was made of the land declared to be surplus and
even till now, nothing has been demarcated and the entire
4 Writ Petition No.7130/2009
land is still in possession of the plaintiff but revenue record
has been corrected showing that the land declared surplus is
vested in the State and as such, belongs to the State. Learned
counsel for the petitioners submits that possession has never
been taken from the petitioners and even no proceeding was
initiated for taking possession. But in the meantime, the
Repeal Act has been introduced and the petitioners have been
enjoying the land as if nothing has been done by the
respondents/authority in respect of the said land. Somehow,
petitioners came to know about the entry made in the revenue
record in respect of the land in question and thereafter they
moved an application before the authority but the authority
has rejected the said application by the impugned order dated
27.05.2009, hence this petition has been filed.
7. Learned counsel further submits that respondents in
their reply have stated that possession has been taken over by
the authority but despite raising specific ground for not
complying the mandatory provisions before taking
possession and not issuing any notice under Section 10(5)
and 10(6) of the Act of 1976, possession if any, said to have
been taken, the said exercise is illegal and liable to be set
aside. Moreso, respondents have not filed any document to
show that notice under Section 10(5) and 10(6) had been
issued to the petitioners.
8. The respondents along with their reply have filed only
one document, i.e. Annexure R/1 which is the possession
letter just to substantiate that possession has been taken by
them.
9. During the course of arguments, the State has been
directed to produce the record of proceeding of possession
and also directed the petitioners to file necessary documents
to substantiate that possession is still with them.
5 Writ Petition No.7130/2009
10. State has not produced any record despite sufficient
time granted to them. However, petitioners have filed an
affidavit swearing therein that possession is still with them
and the land in question has been rented out to Shri Satish
Kumar Namdev and Savita Yadav. Petitioners have also filed
document, i.e. Electricity Bill which is in the name of Satish
Kumar Namdev and Savita Yadav saying that the land is
being used by these two persons and electric meters have
been installed.
11. Considering the submissions made by learned counsel
for the petitioners and the facts of the case, it is clear that the
respondents neither in their reply nor thereafter produced any
document and material to show that they have followed the
mandatory requirement of Section 10 and issued notice under
sub-section 5 of Section 10 and sub-section 6 of Section 10
for taking possession of the land. However, the possession
letter dated 22.12.1983 (Annexure R/1) is on record but from
perusal of said letter, it is not clear as to before whom the
said possession has been taken and in what manner it has
been done and whether it has been voluntarily handed over or
forcefully.
12. The petitioners in their petition have very categorically
stated that possession is still with them and in support of
their stand, they have also filed an affidavit on 10.12.2021
along with the document, i.e. electricity bill issued in favour
of Shri Satish Kumar Namdev and Savita Yadav to whom the
land is rented out.
13. Learned counsel for the petitioners have submitted that
the Supreme Court as well as the High Court, in number of
occasions have said that if possession is taken over by the
respondents without following the mandatory requirement of
Section 10 of the Act of 1976, the said possession is illegal
6 Writ Petition No.7130/2009
and in view of the provisions of the Act of 1999, said
proceeding relating to the Act of 1976 can be declared
abated. Learned counsel has further placed reliance upon the
decisions reported in 2015(2) SCC 390 - D.R. Somayajulu,
Secretary, Diesel Locoshed and Southern Eastern
Railway House Building Cooperative Society Ltd. Vs.
Atili Appala Swamy and others, (2015) 5 SCC 321 -State
of Assam Vs. Bhaskar Jyoti Sharma, 2020(2) M.P.L.J.
404- Rohini Prasad Patel Vs. State of M.P. and others,
(2013) 4 SCC 280- State of U.P. Vs. Hariram. Learned
counsel has also placed reliance on a decision of this Court
passed in W.P. No. 13623/2019, parties being Komal Kewat
and Others Vs. State of Madhya Pradesh and another.
This Court has also decided W.P. No. 13053/2012 (Jawahar
Lal Jaiswal and Others Vs. State of M.P. and Others)
involving the same issue, considering the judgements on
which petitioners have placed reliance and observed as
under:-
"25. It is the consistent view of the Supreme Court and
also of this Court that possession if any claimed to have
been taken by the State authorities without following due
procedure prescribed under Section 10 of the Act, 1976,
is considered to be illegal. It is apparent that in this case
there is no documents available on record to indicate that
the authorities have ever issued any notice under Sections
10(5) and (6) and then took possession of the land. It is
also not clear as to how when as per the record
Annexure-R-4 possession letter is of dated 19/07/1988
then without issuing any notice under Section 10(5) and
(6) it was again taken on 01/11/1990. The petitioners
have relied upon a case of Hariram (supra), in which the
Supreme Court has very clearly laid down that without
following procedure prescribed under Section 10 of 'Act
1976' and without issuing any notice under Section 10(5)
and (6) if possession is claimed to have been taken, the
same is illegal. Relevant observations made by the
Supreme Court in the case of Hariram are as under :-
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
7 Writ Petition No.7130/2009
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:
"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, L.J.
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."
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
subsection (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 thedeclaration 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
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
8 Writ Petition No.7130/2009
delivering possession, peacefully while subsection (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 subsection (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 subsection (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.
(26) This Court has also relied upon the case of Hariram (supra)
and other cases of Division Bench passed by the High Court and
also considered the objection regarding maintainability of
petition on the ground of delay, whereby relying upon the case of
Bhaskar Jyoti Sharma (supra), the Division Bench of this Court
has laid down in a case of Rohini Prasad Patel Vs. State of
M.P. & others, reported in 2020 (2) MPLJ 404, which reads
thus:-
8. Since the respondents have raised an objection regarding
maintainability of the petition on the ground of delay and
laches and placed reliance upon a decision of the Hon'ble
Supreme Court in the case of Bhaskar Jyoti Sharma
(supra), it is appropriate to decide the said issue first.
From the facts and circumstances of the case, as
discussed hereinabove, undisputedly in the year 2011, a
petition in the shape of Public Interest Litigation was filed
by the petitioners, which was disposed of by the Division
Bench of this Court vide order dated 30.09.2011 directing
the petitioners therein to approach the Competent
Authority through a representation raising their grievance.
In the said petition, the issue was that number of persons
whose lands were declared surplus and vested in the State
Government in pursuance to the provisions of the Act,
1976, no intimation was given to the affected persons and
no panchnamas were prepared but in the revenue record, it
is shown that lands have been declared surplus and
possession thereof has also been taken.
In pursuance to the direction given by the Division
Bench, the petitioner in the present petition, for
ventilation of his grievance, has moved a representation
before the Competent Authority and the said Authority, in
9 Writ Petition No.7130/2009
turn, has passed the order impugned dated 18.03.2018.
Therefore, the contention of the respondents that the
petitioner cannot raise this issue after lapse of sufficient
time, is not appropriate because in the said case, a liberty
had been afforded by the Division Bench to the petitioners
therein and as the same has been exercised by the
petitioner in the present petition and the Competent
Authority has rejected his representation and passed the
order impugned dated 18.03.2018, therefore, it cannot be
said that there is delay in filing the present petition. In fact
the Division Bench of this Court in Hemraj Kachhi
(supra) has also considered the aspect of delay in raising
the dispute regarding illegal proceeding of the Act, 1976
and asking the same be declared abated in view of the
provisions of the Repeal Act, 1999. The Division Bench
has observed that there is no provision under the Repeal
Act, 1999 providing statutory period of limitation to raise
the dispute, therefore, delay is not a ground. In the said
writ appeal, the Division Bench has observed as under:-
"We are conscious of the fact that the Additional Collectorhas also
noted that the application has been filed after expiry of 11 years. The
fact that it is filed after 11 years, can be the basis to non-suit the
appellant will depend on whether the repeal Act provides statutory
period within which the application should be submitted. From the
provisions of the repeal Act it appears that on coming into force of the
repeal Act, if the person had continued to be in lawful possession of
the surplus land until that date, the title in respect of the said land
would stand revested and the declaration about the surplus holding and
the vesting of land continued u/s 10(3) cannot be taken forward having
lapsed. These are the matters which the Authority ought to have
examined keeping in mind the dictum of the Apex Court in State of
U.P. vs. Hariram (supra) and in particular the provisions of the Urban
Land (Ceiling & Regulation) RepealAct, 1999."
The case on which the respondents have placed reliance
shall apply in a case where actual physical possession of
the land is taken from the land owner. The Hon'ble
Supreme Court while dealing with the case involving the
fact in which actual physical possession was taken over
from the erstwhile land owner on 07.12.1991 and as such,
the grievance raised on Section 10(5) of the Act, 1976 has
been held to have been raised within the reasonable time
of such dispossession. The Hon'ble Supreme Court has
further observed that if the owner did not do so, forcibly
taking over the possession would acquire legitimacy by
sheer lapse of time and dealing with Section 3(1)(a) of the
Act, 1976, the Repeal Act, 1999 has held that the petition
under Article 226 is not maintainable for seeking
declaration of proceeding initiated under the provisions of
Act, 1976 abated. It is clear from the view of the Hon'ble
Supreme Court that the Apex Court was very specific and
has applied the point of delay and laches in a case where
actual physical possession has been taken over.
However, in the present case, the issue involved is that
no possession has been taken over from the petitioner and
he is still in possession over the land in question, no
notice under Section 10(5) of the Act, 1976 was served
upon him and further, no forceful possession was taken
after issuing the notice under Section 10(6) of the Act,
1976. As per the petitioner, the document i.e. notice under
10 Writ Petition No.7130/2009
Section 10(5) was never served upon him and also notice
under Section 10(6) was not issued and the possession
letter is fabricated and has no legal sanctity in the eyes of
law and the same does not indicate that one sided and
forceful possession of the land in question has been taken
over. Accordingly, in my opinion, the case relied upon by
the respondents has no applicability in the present facts
and circumstances of the case, therefore, the present
petition cannot be dismissed on the ground delay and
laches and thus, the objection raised by the respondents is,
therefore, rejected.
9. From a bare perusal of the documents filed by the
petitioner as also the record produced by the respondents,
it is clear that the notice issued under Section 10(5) of the
Act, 1976 does not contain any endorsement as to when it
got served upon the petitioner. The petitioner has come
with a very specific stand that the notice under Section
10(5) of the Act, 1976 has neither been issued nor served
upon him then it was obligatory for the respondents to
substantiate that notice was not only issued but served
upon the petitioner. Instead of doing so, the respondents
have filed a very casual reply and in paragraph-5.1 of the
reply, they have simply said that the notice dated
30.01.1993 issued under Section 10(5) of the Act, 1976
was served upon the petitioner. Although, the said notice
which is available on record as Annexure-R/1 does not
contain any signature of the witnesses before whom it was
served upon the petitioner and in fact there was no
corroborating order-sheets of the Ceiling Authorities
showing that notice under Section 10(5) of the Act, 1976
was ever issued upon the petitioner. As per reply, it
reveals that the date of notice issued under Section 10(5)
of the Act, 1976 is 30.01.1993 whereas from a perusal of
the said documents, it can be seen that the case was fixed
for 23.10.1993. It indicates that the dates are fabricated
because there cannot be a gap of almost nine to ten
months between the date of notice and fixing the date for
reporting of taking possession. Further, the record does
not contain any notice issued under Section 10(6) of the
Act, 1976 even the reply of the respondents is silent to
that regard. The possession letter which is also available
on record, does not contain any date as to when the
possession has been taken over so also before whom it
was taken. The said letter does not contain signature of the
witnesses, therefore, the said letter has no legal sanctity in
the eyes of law. The record submitted by the respondents
also does not indicate as to when notice under Section
10(5) of the Act, 1976 was issued and on failure to
handover the possession of the land in question,
proceedings of Section 10(6) of the Act, 1976 were
initiated and as to when, the possession has been taken
over forcefully. As contended by the petitioner that he is
still holding the possession over the land and the same is
being cultivated by him indicating that no possession has
been taken over from him under the proceedings of Act,
11 Writ Petition No.7130/2009
1976, therefore, in view of the Section 3 of the Repeal
Act, 1999, the proceeding of the Act, 1976 can be held
abated.
10. Considering the contention raised by the learned
counsel for the petitioner that he has confined his
arguments alleging that there was clear violation of
compliance of the mandatory requirements of Sections
10(5) & 10(6) of the Act, 1976, this Court is only
examining the contention of the petitioner in the light of
the law laid down by the Hon'ble Apex Court and also by
this Court on which the petitioner has placed reliance. As
per the facts available on record as also discussed in
preceding paragraphs, admittedly, there was no notice
issued under Sections 10(5) and 10(6) of the Act, 1976.
Not only this but there is no material adduced by the
respondents nor is it clear from the record substantiating
that the notice under Section 10(5) of the Act, 1976 has
been served upon the petitioner. Thus, in view of the law
laid down by Hon'ble the Apex Court in the case of Hari
Ram (supra) the ceiling proceedings initiated against the
petitioner cannot be said to be in accordance with the
requirement of law. This aspect has been considered by
the Division Bench of this Court in the case of Gayatri
Devi (supra) and also in other cases in which, the
petitioner has placed reliance and in all the cases, it has
been held that issuance of notice under Sections 10(5) and
10(6) of the Act, 1976 is a mandatoryrequirement and if
the same is not followed, the proceedings initiated by the
Authorities under the provisions of the Act, 1976 require
to be set aside. Furthermore, this Court on earlier occasion
has dealt with the similar issue in Writ Petition
No.18827/2010 parties being [Mangal Prasad Koshta &
others Vs. State of M.P. & others] and has observed as
under:-
10.The Division Bench of this Court in the case of Rajubai and others
(supra) and Thamman Chand Koshta (supra) has dealt with the similar
situation and after taking note of the provisions of Section 10 of the
Principal Act has observed as under:-
"08. Before we examine the respective contention of the parties, the
relevant provisions of the Statute need to be reproduced:-
10. Acquisition of vacant land in excess of ceiling limit.--(1)
As soon as may be after the service of the statement under Section 9 on
the person concerned, the competent authority shall cause a notification
giving the particulars of the vacant land held by such person in excess of
the ceiling limit and stating that--
(i) such vacant land is to be acquired by the concerned State Government;
and
(ii) the claims of all persons interested in such vacant land may be made
by them personally or by their agents giving particulars of the nature of
their interests in such land, to be published for the information of the
general public in the Official Gazette of the State concerned and in such
other manner as may be prescribed.
(2) After considering the claims of the persons interested in the vacant
land, made to the competent authority in pursuance of the notification
published under sub-section (1), the competent authority shall determine
the nature and extent of such claims and pass such orders as it deems fit.
(3) At any time after the publication of the notification under sub-section
(1), the competent authority may, by notification published in the Official
Gazette of the State concerned, declare that the excess vacant land
referred to in the notification published under sub-section (1) shall, with
effect from such date as may be specified in the declaration, be deemed to
have been acquired by the State Government and upon the publication of
12 Writ Petition No.7130/2009
such declaration, such land shall be deemed to have vested absolutely in
the State Government free from all encumbrances with effect from the
date so specified.
(4) During the period commencing on the date of publication of the
notification under sub-section (1) and ending with the date specified in the
declaration made under sub-section (3),-
(i) no person shall transfer by way of sale, mortgage, gift, lease or
otherwise any excess vacant land (including any part thereof) specified in
the notification aforesaid and any such transfer made in contravention of
this provision shall be deemed to be null and void; and
(ii) no person shall alter or cause to be altered the use of such excess
vacant land.
(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 possession
thereof to the State Government or to any person duly authorised 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 and may
for that purpose use such force as may be necessary.
Explanation.--In this section, in sub-section (1) of Section 11 and in
Sections 14 and 23, "State Government", in relation to--
(a) any vacant land owned by the Central Government, means the Central
Government;
(b) any vacant land owned by any State Government and situated in a
Union territory or within the local limits of a cantonment declared as such
under Section 3 of the Cantonments Act, 1924 (2 of 1924) means that
State Government.
09. In terms of Section 10 (1) of the Act, it was incumbent upon the
competent authority to give notice to all person interested in such vacant
land either personally or through their agent by giving particulars of their
interest as is required to be given under Section 10 of the Act. Since the
petitioner was in possession and such possession having been recognized
by virtue of an order passed by the Tehsildar on 29th October, 1987, thus
the writ petitioner was an interested party and hence the notice was
required to be issued before publication of notification under Section
10(3) of the Act.
10. Still further, in terms of sub Section (5) of Section 10 of the Act, the
competent authority is required to serve a notice in writing to deliver
possession, who may be in possession of the land which vested in the
State Government. The writ petitioner was in possession of the land which
is evident from the mutation sanctioned on 29.10.1987. It was only on
15.2.1999 (Annexure R-4), the request of the petitioners not to take
possession was declined for the reason that the land vest with the State
under the Act. Such order, in fact, approves the possession of the
petitioners over the land in question. Still further the Panchnama
(Annexure R-3) again shows that the land was in possession of the writ
petitioners, therefore, in the absence of notice as required under sub
Section (5) of Section 10 of the Act, the land would be covered by Section
3 of the repealing Act as it will not vest with the State.
11. The Hon'ble Supreme Court in a judgment reported as (2013) 4 SCC
280 State of U.P. Vs Hari Ram in the context of the Act, held that the de-
facto possession is required to be taken by the State and not de jure. The
Court held that the Act deals with deemed vesting or deemed acquisition,
but the keeping in view the provisions of the Act, unless the possession is
taken in terms of Section 10 (5) of the Act, the land cannot be said to be
vested with the State Government. The proceedings of taking possession
Annexure-R3 shows that it is only a paper possession without taking
actual possession from the land owner and without giving notice to person
who is in possession. The person in possession is required to be given
notice under sub-sections (5) and (6) of Section 10. The relevant extract
from the Supreme Court judgment read as under :-
"30. Vacant land, it may be noted, is not actually acquired but deemed to
have been acquired, in that deeming things to be what they are not.
Acquisition, therefore, does not take possession unless there is an
indication to the contrary. It is trite law that in construing a deeming
provision, it is necessary to bear in mind the legislative purpose. 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
13 Writ Petition No.7130/2009
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.
31. The 'vesting' in sub-section (3) of Section 10, in our view, means
vesting of titleabsolutely 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:
"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, L.J. 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.
33. Before we examine sub-section (5) and subsection (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 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 State Government or to any
other person, duly authorised 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) of Section 10, there
is no necessity of using the expression "where any land is vested" under
sub-section (5) of Section 10. Surrendering or transfer of possession under
sub-section (3) of Section 10 can be voluntary so that the 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) of
Section 10 to surrender or deliver possession. Sub-section (5) of Section
10 visualises 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) of 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 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
14 Writ Petition No.7130/2009
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.
37. The requirement of giving notice under subsections (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"."
12. Since the revenue record records the possession of the writ petitioners
and also the proceedings to take over possession, therefore, the writ
petitioner was entitled to a notice to deliver possession to the State in
terms of Section 10(5) of the Act and on failure of the writ petitioners to
hand over possession to use force in terms of Sub Section 6 of Section 10
of the Act. Since the Repeal Act contemplates that if possession has not
been taken, the land will not vest with the State Government. Therefore,
the land in question would not vest with the State Government."
11. It is also apt to mention here that the order passed by this Court in
the case of Thamman Chand Koshta (supra) has been affirmed by the
Apex Court in Special Leave Petition No.14985/2018 vide order dated
16.07.2018. Similarly, in a writ petition No.11515/2013 Gayatri Devi
(supra), the writ Court has also held that the scope and applicability of
provision of Sections 10(5) and 10(6) of the Principal Act, taking
shelter of the law laid down by the Apex Court in the case of Hari Ram
(supra), which reads as under:-
"7. The scope and applicability of the provision of Section 10(5)
and 10(6) of the Act has been duly considered by Hon'ble the
Apex Court in the case of Hari Ram (Supra) and 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 Rejender
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, L.J. 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."
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 subsection (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
15 Writ Petition No.7130/2009
"possession" which says where any land is vested in the State Government
under subsection (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 subsection (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 subsection (3) to Section 10 can be voluntary so that the 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 sub7 section (5) of Section
10. Subsection (6) to Section 10 again speaks of "possession" which says,
if any person refuses or fails to comply with the order made under
subsection (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 subsection (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 notice under sub-
section (5) or subsection (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'.
The judgment of Hari Ram (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 of Repeal Act, restating the
principle of the judgment of Hari Ram (supra) the Apex Court remitted
the matter to the High Court for determination of the issue of actual
physical possession on the date of commencement of the Repeal Act."
and finally observed the impact of non compliance of mandatory
provision of Sections 10(5) and 10(6) of the Principal Act, which reads as
under:-
"15. In the present case the notice under Section 10(5) of the Act
was issued in the name of the holder of land, who was already
died on the date of its issue and the notice was not issued in the
name of persons who were in possession of the land on drawing
the proceedings under Sections 10(5) of the Act. As discussed
presuming service of the said notice on the dead person, if
possession has taken in front of witnesses ex-parte, without
drawing the proceedings of Section 10(6) of the Act, the said
procedure is not known under the Principal Act, and as interpreted
by the judgment of Apex Court in Hari Ram (supra). Thus, in my
considered opinion, it is to be held that the actual physical
possession of the land bearing Khasra No.87 and 228/3 area
8536.32 square meters of village Purwa, Settlement No. 162,
Patwari Halka No. 28, Tehsil and District Jabalpur has not been
taken, following the procedure prescribed, by the competent
authority or by Naib Tehsildar (Nazul), on the date of
commencement of the Repeal Act, therefore, these proceedings
shall abate. Accordingly the questions as posed for discussion are
answered in favour of the petitioners against respondents."
16 Writ Petition No.7130/2009
12. It is also pertinent to mention here that against the decision of this
Court, the Supreme Court has dismissed the SLP No.18278/2017 vide
order dated 28.07.2017 in the case of Gayatri Devi (supra). Accordingly,
it is clear that the mandatory requirement of the provision of Sections
10(5) and 10(6) of the Principal Act have not been followed in the present
case, therefore, the proceeding initiated by the revenue authorities
showing the possession of the land taken in the ceiling proceeding and the
land vested in the State, cannot be said to be proper and the said
proceeding cannot be held to be legal and in accordance with law.
13. This Court in Writ Petition No.18017/2010 parties being Smt. Meera
Bai and others Vs. The State of Madhya Pradesh and others, taking note
of the law laid down by the Division Bench of this Court in the case of
Ram Kumar Pathak and others Vs. State of M.P. and others (Writ
Appeal No.734/2008), has also considered the scope of Section 10(5) of
the Principal Act, which reads as under:-
"7. Section 10(5) of the Act provides as under:-
"10. Acquisition of vacant land in excess of
ceiling limit:-
........
(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 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. Aforesaid provision specifically provides that a notice of minimum 30 days was required to be served on the holder, but as is apparent from the perusal of order-sheet that on 29.2.1992, the notice was issued and the date of delivery of possession was fixed as 3.3.1992. It appears that only 4 days notice was issued to the holder and the order-sheet was written for taking over the possession. It is also apparent that notice under Section 10(5) of the Act was not served upon the holder. When the notice was served by affixture also does not find place in the notice. Even the person who had affixed the notice did not care to call two independent witnesses to witness affixure of notice at the house of the holder. The notice is also silent that on which date and at what time, the affixure was made. The possession was not taken from the holder. Though the Kotwar had signed the document but why two independent witnesses were not called. Though two names are appearing in the notice but without any particulars. Why the holder was not called for handing over the possession?, nothing is available on record. Apart from this, no proper Panchnama was drawn for taking possession of the land. These facts show that in fact possession of the land was not taken on 3.3.1992 as stated in the reply by the respondents. When possession of the land was not taken after issuance of due notice under Section 10(5) of the Act, in accordance with law, the proceedings shall be deemed to be pending as on the date when the Urban Land (Ceiling and Regulation) Repeal Act, 1999 came into force. When the proceedings were pending as on 22.3.1999, then in view of the Repeal Act of 1999, the proceedings shall be deemed to be abated.
8. Now the question remains whether on coming into force of Repeal Act, 1999 whether the proceedings were pending? In this case, no notice under Section 10(5) of the Act was served upon the appellants while it was the mandatory requirement of the law to serve this notice. Even for the sake of arguments, if it is assumed that the notice dated 29.2.1992 was issued to the appellants, even then 30 days' notice was the mandatory requirement of the law and until and unless a notice of 30 days could have been issued, the provision shall be deemed to be not complied with. Factually, neither notice under Section 10(5) was served upon the appellants nor any notice before handing over possession was given to the appellants. Neither the notice under Section 10(5) of the Act nor the warrant of possession bears the signature of the appellants. Apart from this, the possession which was stated to be taken on 3.3.1992 was not in the presence of witnesses. Even if it is assumed that the two names which are appearing in the notice were witnesses, but no particulars of the witnesses are on record. No specific Panchnama was prepared on the spot that in the presence of these witnesses, the possession was taken. When, at what time 17 Writ Petition No.7130/2009 and in whose presence, the possession was taken, letter of possession is silent. In view of non-compliance of mandatory provision as contained under Section 10(5) of the Act or the suspicious circumstances in taking possession, it is apparent that the factual possession on the spot was not taken. Apart from this, the appellants/petitioners from the very inception were claiming their possession on the land and had come forward with the plea that the appellants were dispossessed after interim order in this appeal. The fact which has been established is that no factual possession was taken from the appellants and they continued to be in possession till filing of the appeal which was filed on 24.6.2002 after coming into force of Repeal Act, 1999. In aforesaid circumstances, the appellants were in possession of the land, as on the date, on which the Repeal Act, 1999 came into force. In such circumstances, it can very well be said that the proceedings were pending on the date when the Repeal Act came into force. If the appellants remained in possession of the land and their possession was not disturbed, then they were entitled to retain the land and the proceedings shall be deemed to have been abated [See:Vinayak Kashinath Shilkar Vs. Deputy Collector and Competent Authority & others (2012) 4 SCC 718]."
[Emphasis Supplied]
11. Recently, Hon'ble the Apex Court has affirmed the order passed by the Division Bench of this Court in the case of Anees Fatima (supra) vide order dated 10.12.2018 passed in Diary No.42231/2018.
(27) Recently against a decision in case of the State of Madhya Pradesh & others Vs. Balgovind Jyotishi decided by Division Bench of this Court relying upon the judgment in the case of Hariram (supra), a SLP was preferred vide SLP No.910-911/2020, which has been dismissed by the Supreme Court vide order dated 20/11/2021 holding that there was no reason to interfere in the reasoned and detailed order passed by the High Court.
(28) Considering the aforesaid legal position and enunciation of law laid down by the Supreme Court and also by this Court, I have no hesitation to say that the stand taken by the respondents in respect of possession claimed to have been taken over is not sustainable and is contrary to the record."
14. Considering the aforesaid view of the Supreme Court and of this Court also, it is already set at rest that if the land is declared to be surplus and is to be vested in the State under the provisions of the Act of 1976, then sub-section (5) of Section 10, which is quoted hereinabove is a mandatory requirement to be followed before taking possession of surplus land. If possession is not voluntarily handed over and the land owner failed to comply with the provisions of sub-
18 Writ Petition No.7130/2009section (5) of Section 10 then notice under sub-section(6) of Section 10 is required to be issued. Relying upon a decision of the Supreme Court in case of Hari Ram (supra), this Court has also held that issuing notice under sub-sections (5) and (6) of Section 10 is a mandatory requirement and if that is not followed, then the possession so taken by the authority, is illegal. The Division Bench has further taken note of this aspect and also observed that if possession is said to have been taken illegally, then such proceeding can be said to be illegal and declared abated in view of the provisions of the Repeal Act. The Division Bench of this Court in Writ Appeal No. 558/2016 (State of M.P. and Others Vs. Rajubai and Others) and also in Writ Appeal No. 867/2015 (State of Madhya Pradesh and Others Vs. Thamman Chand Koshta) has considered this aspect in detail and dealt with the said requirement explaining as to what is voluntary surrender; peaceful dispossession and forceful dispossession. The Division Bench has further held that even in case, possession, if any, said to have been taken without following the mandatory requirement of sub-section (5) and sub-section (6) of Section 10, the said possession cannot be considered to be a valid one and if validity of said possession is questioned even at belated stage, the same cannot be rejected only on the ground of delay.
15. Recently, the Supreme Court in case of State of M.P. and Others Vs. Bal Govind Jyotashi (SLP No. 910- 911/2020), relying upon its earlier decision in case of Hari Ram (supra) and the view taken thereof, has dismissed the SLP preferred by the State of M.P.
16. Thus, in view of the aforesaid legal position and as per the facts existing in this case, it clearly infers that the possession is still with the petitioners and further in absence 19 Writ Petition No.7130/2009 of any specific stand taken by the respondents with regard to possession and not filing any document about compliance of Section 10, it itself makes clear that only paper formality of taking possession has been done in a possession letter but the actual possession is with the petitioners and they are enjoying the land as if the same is not vested in the State treating it to be a surplus land under the provisions of the Act of 1976.
17. Ex-consequentia, this petition is allowed. The order passed by the respondent no.2-Additional Collector on 27.05.2009 (Annexure P/2) is hereby set aside. The respondents are directed to correct the revenue entry by deleting the name of the State Government in respect of the land in question and the name of the petitioners be recorded. The aforesaid exercise be completed by the respondents within a period of three months from submitting copy of the order passed by this Court.
18 Accordingly, the petition stands allowed.
(SANJAY DWIVEDI) JUDGE rao Digitally signed by SATYA SAI RAO Date: 2022.01.29 13:24:14 +05'30'