Madhya Pradesh High Court
Smt. Samundri Bai vs The State Of Madhya Pradesh on 24 February, 2022
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
W.P.No.15554/2016
Smt. Samundri Bai
Versus
State of Madhya Pradesh & others
Date of Order 24/02/2022
Bench Constituted Single Bench
Order delivered by Hon'ble Shri Justice Sanjay
Dwivedi, J
Whether approved for
reporting
Name of counsels for For Petitioner: Shri Kapil Duggal
the parties
For Respondent-State: Shri Puneet
Shroti, Panel Lawyer
Law laid down
Significant Para Nos.
ORDER
(24/02/2022) Petitioner has filed this petition under Article 226 of the Constitution of India seeking following relief:
A. That this Hon'ble Court may kindly issue a writ in the nature of ceretiorari quashing the impugned order dated 23.10.2010.
B. That since the physical possession is still with the petitioner of the land in question therefore as per Section 4 of the repeal act this Hon'ble Court may kindly hold the proceedings as abated.
C. That this Hon'ble Court may also issue a natural mandamus directing the respondents to restore the name of the petitioner in the revenue records deleting the name of the state government and also restraining the respondents from dispossessing the petitioner from the land in question vide Khasra No. 16, area 2 0.405 hect. and Khasra No. 34, area 1.271 hect. Situated at Village Sagda, District Jabalpur.
D. Any other relief as deemed fit and proper in the circumstances of this case alongwith the cost of this writ petition be also awarded.
2. As per the facts of the case, the present petitioner owns and possesses the agricultural land bearing Khasra Nos. 16 and 34 situated at P.C. No. 28 at Village Sagda, District Jabalpur. The said land is ancestral land of the petitioner and is recorded in the name of her husband Chamru @ Shyam Singh in the revenue record.
3. The State Government has initiated the proceedings under the provision of Urban Land (Ceiling and Regulation) Act, 1976 (for convenience sake, hereinafter referred to as 'the Act of 1976') asking the land owners to submit their statements under Section 6(1) of the Act of 1976 and thereafter a Revenue Case No. 64/A-90,(B-9)/78-79 was registered and in the said proceedings the land of Khasra No. 16, area 0.405 hectare and Khasra No. 34, area 1.271 hectare Situated at Village Sagda, District Jabalpur has been declared as surplus and thereafter it is shown that the respondents have ex-parte possession of the said agricultural land, but, according to the petitioner, the physical possession of the land in question has never been taken by the respondents- authorities applying the mandatory requirement of the provision of Section 10 of the Act of 1976. It is stated that the possession has been taken only on papers that too without issuing any notice to the petitioner under Sections 10(5) and 10(6) of the Act of 1976. The land of the petitioner, which was in her possession and was being cultivated by her, is 3 shown in the revenue record as the land of State Government and vested in the State by virtue of proceedings initiated under the Act of 1976.
4. A writ petition was filed by the original land owner namely, Chamru @ Shyam Singh in the year 2005 and the said writ petition was registered as WP No. 13531/2005 claiming that the land in question of released from the proceedings initiated under the provisions of Act of 1976 as possession has not been taken from the petitioner therein and as per the provisions of Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as Repeal Act, 1999) since possession is still with the petitioner and, therefore, the proceedings should be declared abated. The said petition was disposed of vide order dated 09.12.2005 directing competent authority to reconsider the claim of the petitioner.
5. In pursuance to the said order, proceedings initiated by the competent authority in which the fact regarding possession over the said property is ascertained and as per the Panchnama prepared by the revenue authority, it was found that the petitioner is still in possession of the land in question. It is also observed that the said land was being cultivated by the petitioner, but, finally the competent authority passed the order dated 23.10.2010 (Annexure P/7) wherein it has been observed by the competent authority that in pursuance to the proceeding initiated under the provisions of Section 1976, the land in question is vested in the State and the authority declared the said land as surplus and as per the procedure prescribed under the Act of 1976, the possession has been taken by the then Tehsildar and as such the land is of the State 4 Government and the possession of the petitioner was said to be illegal and he was said to be an encroacher. Accordingly the case of the petitioner has been rejected by the authority.
6. A review petition was filed by the land owner Chamru and the said review was entertained by the authority, but, since the said review petitioner was not decided by the authority, therefore, this petition has been filed challenging the order of the competent authority passed in the year 2010.
7. Learned counsel for the petitioner has raised the grounds that no proceedings under Section 10 of the Act of 1976 has been initiated by the authority for taking possession of the land. He submits that even in view of the direction given by this Court in the writ petition to the competent authority for ascertaining the fact regarding possession, it was found that the possession is with the petitioner, but, even though, the case of the petitioner has been dismissed by the competent authority staying that the possession has been taken in accordance with law. He submits that in the order of competent authority although it has been observed that the possession has been taken after following due procedure of law and applying mandatory requirement of Section 10(5) and 10(6) of the Act of 1976, but, in fact no proceedings under Sections 10(5) and 10(6) have been initiated by the authority and no notices under the aforesaid sections of the Act of 1976 have been issued to the land owners.
8. Reply has been filed by the respondents stating therein that ex-parte possession of the land has already been taken by the authority.
9. The petitioner has filed rejoinder taking stand therein that the stand of the respondent is contrary to each other; on 5 the one hand it is stated that ex-parte possession has been taken, but, on the other hand, in its order the competent authority has observed that the mandatory requirement of Section 10(5) and 10(6) of the Act of 1976 has been followed and proper notices were issued to the land owners and then only the possession of the land was taken.
10. At the time of hearing the petition, the respondents were granted time to produce the record so as to ascertain the facts mentioned in the reply as to whether proper proceeding has been initiated under Section 10 or not, but, despite granting sufficient time, no record has been produced.
11. The respondents have taken stand in their reply about complying with the provisions of Section 10 of the Act of 1976, but, no document in support of their with regard to issuing notice under Section 10(5) and 10(6) has been filed. When the petitioner has taken a very specific stand, it was obligatory on the part of the respondents to rebut the same by producing relevant document i.e. notice issued to the land owners under Section 10(5) and 10(6) of the Act. In absence of any such material, adverse inference can be drawn against the respondents-authorities that they have not followed the mandatory requirement and not issued the notice to the land owners under Section 10(5) and 10(6) of the Act of 1976.
12. After deciding writ petition by the High Court the authority had to determine the factum regarding possession over the land, even the authority has not disclosed as to how the mandatory requirement of sending notice under Section 10(5) & 10(6) of the Act has been followed. The authority has only referred that under Section 10(5) of the Act, notice was issued and thereafter possession has been taken by the 6 authority proceeded under Section 10(6) of Act, 1976, but as to on what date notices were issued nothing has been mentioned. On the contrary, the report of the revenue officer were called, in which possession of the petitioner was found over the land in question indicating that the land was being cultivated by the petitioner. Under such a circumstance, authority was under obligation to specify that the Panchnama prepared by the revenue officer showing possession of the petitioner over the land in question is nothing, but an encroachment, because the same has been taken by the authority after following due procedure of law. Surprisingly, when a petition was filed taking specific ground questioning the order passed by the authority saying that the mandatory requirement applying Section 10(5) & 10(6) of Act has not been done and possession has not been taken from the petitioner, again respondents have not filed any documents to show that notices of Section 10(5) 10(6) of the Act were issued to the petitioner. No such notice was annexed along with reply and despite giving sufficient time to the authority to produce the record, the same has also not been produced. The documents filed by the petitioner along with his petition i.e order sheet dated 04/06/2009 of Tahsildar, in which Tahsilar has stated that the record of possession case has been examined. Relevant part of observation reads as under:-
dCtk izdj.k voyksdu fd;k vkosfnr Hkwfe dk ,d i{kh; dCtk izkIr fd;k x;k Fkk A jktLo fujh{k.k dh fjiksVZ xokgkas ds dFku ds vk/kkj ij xzke lxMk dh Hkwfe [k ua 16 jdok 0.405 o 34 jdok 1.271 gS esa dkfct vkosnu gS Hkwfe d`f"k gksrh gS rFkk bl o"kZ vkosnd }kjk Qly yxkbZ xbZ Fkh 'ks"k Hkwfe;ka flapkbZ foHkkx Hkwry ifjogu foHkkx jsYos }kjk vf/kxzfLr dh tk pqdh gS A
13. A glance at the aforesaid observation made by the Tahsildar, makes it crystal clear that the land was in 7 possession of the petitioner and the said land was being cultivated by them. Under such a circumstance, it was obligatory for the respondent-authority to come with a specific stand and produce cogent material before this Court, so as to meet out the stand taken by the petitioner, but the respondents have failed to do so, therefore, adverse interference is drawn against the respondents. This Court in number of cases relying upon a decision of Supreme Court has observed that if possession of land is declared surplus under the provisions of 'Act 1976' without following due procedure, then said possession if any shown to have been taken is illegal and as such proceeding initiated under the provision of 'Act, 1976' is declared abated in view of the provision of 'Repeal Act, 1999'. The Supreme Court in case of State of U.P. Vs. Hariram, 2013(4) SCC 280 has very clearly laid down that if land is vested in the State declared surplus under the provision of Act, 1976 then possession can be taken by the authority by applying the mandatory provision of Section 10(5)& 10(6) of the Act; and further observed if that mandatory requirement is not fulfilled the said possession can be considered to be illegal. This Court taking note of the law laid down by the Supreme Court and further by Division Bench of High Court in number of cases has allowed the writ petition declaring the proceedings of provision of 'Act 1976' abated, whereunder land is declared to be surplus under the said provision and finally claimed to be vested in the State. After examining the record of the case, it is noticed that the State has not complied with the mandatory provision of Section 10(5) & 10(6) of the Act. Thus, if the said mandatory provision has not been followed the proceedings taking possession is declared illegal and 8 under the provision of Section 4 of Repeal Act, 1999, the said proceeding is declared abated. The Supreme Court in the case of Hariram(supra) has observed 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 sub- section (3), no person shall transfer by way of sale, mortgage, gift or otherwise, any excess vacant land, specified in the notification and any such transfer made in contravention of the Act shall be deemed to be null and void. Further, it also says that no person shall alter or cause to be altered the use of such excess vacant land. Therefore, from the date of publication of the notification under sub- section (1) and ending with the date specified in the declaration made in sub-section (3), there is no question of disturbing the possession of a person, the possession, therefore, continues to be with the holder of the land.
Peaceful dispossession
34. Sub-section (5) of Section 10, for the first time, speaks of "possession" which says where any land is vested in the State Government under sub- section (3) of Section 10, the competent authority may, by notice in writing, order any person, who may be in possession of it to surrender or transfer possession to the State Government or to any other person, duly authorized by the State Government.
35. If de facto possession has already passed on to the State Government by the two deeming provisions under sub section (3) to Section 10, there is no necessity of using the expression "where any land is vested" under sub- section (5) to Section 10. Surrendering or transfer of possession under sub section (3) to Section 10 can be voluntary so that the 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. Sub section (5) of Section 10 visualizes a situation of surrendering and delivering possession, peacefully while sub- section (6) of Section 10 contemplates a situation of forceful dispossession. Forceful dispossession
36. The Act provides for forceful dispossession but only when a person refuses or fails to comply with an order under sub-section (5) of Section 10. Sub-section (6) to Section 10 again speaks of "possession" which says, if any person refuses or fails to comply with the order made under sub- section (5), the competent authority may take possession of the vacant land to be given to the State Government and for that purpose, force - as may be necessary - can 9 be used. Sub-section (6), therefore, contemplates a situation of a person refusing or fails to comply with the order under sub- section (5), in the event of which the competent authority may take possession by use of force. Forcible dispossession of the land, therefore, is being resorted only in a situation which falls under sub-section (6) and not under sub section (5) to Section 10. Sub-sections (5) and (6), therefore, take care of both the situations, i.e. taking possession by giving notice that is "peaceful dispossession" and on failure to surrender or give delivery of possession under Section 10(5), than "forceful dispossession" under sub-section (6) of Section 10.
37. Requirement of giving notice under sub sections (5) and (6) of Section 10 is mandatory. Though the word 'may' has been used therein, the word 'may' in both the sub-sections has to be understood as "shall" because a court charged with the task of enforcing the statute needs to decide the consequences that the legislature intended to follow from failure to implement the requirement. Effect of non-issue of notice under sub-section (5) or sub-section (6) of Section 10 is that it might result the land holder being dispossessed without notice, therefore, the word 'may' has to be read as 'shall".
14. The aforesaid view of the Supreme Court given in case of Hari ram (supra) has been further followed by a Three Judge Bench of the Apex Court in the case of D.R. Somayajulu Vs. Attili Appala Swamy an others (2015) 2 SCC 390. The relevant portion of case of D.R. Somayajulu (supra) is reproduced as under:-
"26. In State of U.P. v .Hari Ram (2013) 4 SCC 280, this Court considered the question with regard to "deemed vesting" under Section 10(3) of ULCR Act in the context of saving clause in the Repeal Act, 1999. This Court held that for the purpose of saving clause under the repeal Act 1999, de facto possession is required to be taken by the State and not de jure. In paragraphs (31), (34) and (35) of Hari Ram case [State of U.P. v. Hari Ram, (2013) 4 SCC 280 :
(2013) 2 SCC (Civ) 583] this Court held as under:- (SCC pp. 296-97) "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 U.P. [(1977) 1 SCC 155] : (1977) 1 SCR 1072] while interpreting Section 117(1) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 held that "vesting" is a word of slippery import and has many meanings and the context controls the text and the purpose and scheme project the particular semantic shade or nuance of meaning....
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, 10 peacefully while sub-section (6) of Section 10 contemplates a situation of forceful dispossession."
The first respondent placed much reliance on the observations in paragraph 42 of Hari Ram case [State of U.P. v. Hari Ram, (2013) 4 SCC 280 : (2013) 2 SCC (Civ) 583] which reads as under:-
"42. The mere vesting of the land under sub-section (3) of Section 10 would not confer any right on the State Government to have de facto possession of the vacant land unless there has been a voluntary surrender of vacant land before 18-3-1999. The State has to establish that there has been a voluntary surrender of vacant land or surrender and delivery of peaceful possession under sub-section (5) of Section 10 or forceful dispossession under sub-section (6) of Section 10. On failure to establish any of those situations, the landowner or holder can claim the benefit of Section 4 of the Repeal Act. The State Government in this appeal could not establish any of those situations and hence the High Court is right in holding that the respondent is entitled to get the benefit of Section 4 of the Repeal Act."
The contention of the first respondent is that possession of the surplus land was never surrendered to the Government and the above observations in Hari Ram's case are squarely applicable and by virtue of the repeal Act, land ceiling proceedings stood abated."
15. As far as the stand taken by the respondents with regard to delay in raising the grievance is concerned, the same does not have any force for the reason that proceedings had already been initiated by the land owner and writ petition preferred by the petitioner got disposed of directing him to approach the competent authority to ascertain the fact regarding possession over the land in question and thereafter the order passed by the authority was sought to be reviewed, but that has not been decided, therefore, writ petition has been filed. Even otherwise, considering the existing facts and circumstance and the grounds raised by the petitioner challenging the proceedings initiated under the provision of Act, 1976 and further taking note of provision of Repeal Act, 1999 the Division Bench of this Court in case of Ram Kumar Pathak Vs. State of Madhya Pradesh and others, W.A.No.734/2008 has held as under:-
when proceeding initiated under the provisions of the Act, 1976 can be abated and also dealt with the situation as to under what circumstance in view of the provisions of Repeal Act, 1999, the proceeding can be considered to be pending elaborating the scope of Section 10(5) of the Act, 1976. The observation of the Division Bench reads as under:-
"7. Section 10(5) of the Act provides as under:-
"10. Acquisition of vacant land in excess of ceiling limit:- ........11
(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 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]
16. Under the facts and circumstances of the case when High Court has once entertained the petition remitted the 12 matter to the competent authority for determining the question of possession of the land in question and then the authority passed an order on 23/10/2010 which was again assailed by filing review, but the same is pending and has not been decided by the authority till date. This Writ Petition filed in the year 2016 cannot be dismissed on the ground of delay and laches, therefore, the impugned order passed by the authority on 23/10/2010 (Annexure-P-7) is hereby set-aside and the land in question i.e land belonging to Gram Sagra Bandobast no.421 khasra no.16, 20 23/1, 23/2, 26/1 27/1, 34 out of which 5000663.83 square meter land has been declared to be surplus and the proceeding related to the said land under the provision of Act, 1976 is hereby declared abated. The respondent-authority is directed to make necessary correction in the revenue record replacing the name of petitioner showing her owner of the land within a period of 90 days from submitting copy of the order.
Petition is accordingly allowed. No order as to costs.
(Sanjay Dwivedi) Judge SUSHMA sushma Digitally signed by SUSHMA KUSHWAHA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh, 2.5.4.20=06cc7ec7869e71b23c61580e1aaad85481f7ea48cd875 KUSHWAHA c18e5a68787947df0c5, pseudonym=3162691BECDE33282E19E0CEBA20524E31482089, serialNumber=0844205F54108DDA40342AD423EF1D3DE29D4F 5E3FC94CC59B05D91905B104C7, cn=SUSHMA KUSHWAHA Date: 2022.02.28 11:17:58 +05'30'