Madhya Pradesh High Court
Dattatrey Rao Kale vs The State Of Madhya Pradesh on 12 February, 2019
1 Writ Petition No.1426/2011
HIGH COURT OF MADHYA PRADESH,
PRINCIPAL SEAT AT JABALPUR
Writ Petition No.1426/2011
Dattatrey Rao Kale
Vs.
The State of Madhya Pradesh & others
Date of Order 12.02.2019
Bench Constituted Single Bench
Order delivered by Hon'ble Shri Justice Sanjay Dwivedi
Whether approved for
reporting
Name of counsels for For Petitioner: Shri Sankalp Kochar,
parties Advocate
For Respondents: Shri Sudeep Deb,
Government Advocate
Law laid down
Significant paragraph
numbers
Reserved on : 21.12.2018
Delivered on : 12.02.2019
(JUDGMENT)
(12.02.2019)
The record of the ceiling case is available.
Since pleadings are complete and on the request of
the learned counsel for the parties, matter is heard finally.
2. The instant petition has been filed by the petitioner
seeking quashment of the order dated 09.12.2010 (Annexure-
P/4) passed by respondent No.3 (Competent Authority) in
Revenue Case No.56/A-90(B-9)/82-83. The Competent
2 Writ Petition No.1426/2011
Authority under the Urban Land Ceiling Act has initiated
proceedings and passed the order impugned in pursuance to
the direction given by this Court in Writ Petition
No.1845/2001 [Khuman Singh & others Vs. State of Madhya
Pradesh & others]. The petitioner is basically assailing the
ceiling proceedings initiated in respect of the land in
question. It is contended that the proceedings initiated
against the petitioner are declared to be abated in view of the
provisions of the Urban Land (Ceiling and Regulation) Repeal
Act, 1999 (hereinafter referred to as the 'Repeal Act, 1999') for
the reason that the possession of the land in question has not
been taken over by the respondents/Authorities and the
same is still with the possession of the petitioner but the
respondents without following the mandatory requirement of
Section 10 of the Urban Land (Ceiling and Regulation) Act,
1976 (for brevity the 'Act, 1976') has got the land recorded in
the name of State showing that they have taken possession
over the land in question but it was only on paper. As per the
petitioner, no physical possession was ever taken by the
respondents/Authorities by following due procedure of law
and accordingly the order passed by the Competent Authority
in pursuance to the directions of this Court is illegal and
therefore is sought to be quashed.
3. The facts in compendium leading to filing of the
instant petition are that the petitioner is claiming himself to
3 Writ Petition No.1426/2011
be the owner of the land situated over Khasra Nos.260 and
299 in village Tewar of settlement No.229 and Khasra Nos.2
and 58 (new Nos.144 and 167) in village Padua settlement
No.160 and Khasra Nos.73, 74, 80 and 120 in village Silua of
settlement No.422. As per the petitioner, the aforesaid land
was non diverted agricultural land and does not come within
the ambit of urban agglomeration as village Tewar is not
situated at the distance of about 15 KM from Jabalpur and
also the other villages are at the distance of about 3 KM from
Tewar where the urban amenities are not available, therefore,
the provisions of the Act, 1976 are not applicable.
4. Vide Revenue Case No.56/A-90 (B-9)/82-83, the
aforesaid land was declared to be surplus under the Act,
1976 and as per the petitioner, without giving any
opportunity of hearing in the unilateral proceedings initiated
by the respondents against him, the land shown to have been
vested in the State Government whereas, the possession of
the same was never taken over from the petitioner by the
State Government nor any proceedings as contemplated for
taking possession have been initiated. Since there was
violation of the provisions of Act, 1976 and the possession of
the land was also remained with the petitioner, therefore, the
proceedings initiated against the petitioner under the
provisions of the Act, 1976 have to be declared abated in view
of the provisions of the Repeal Act, 1999.
4 Writ Petition No.1426/2011
5. One Khuman Singh, who purchased the certain
land, which was part of the land in question, raised a dispute
before the Commissioner and as the dispute relating to the
land of the petitioner was also pending before the Revenue
Authorities, they were not taking any action in view of the
provisions of the Repeal Act, 1999 then Khuman Singh filed a
Writ Petition No.1845/2001 which was disposed of vide order
dated 17.01.2002 (Annexure-P/1).
6. By the order dated 17.01.2002, the case of
Khuman Singh was remanded back for proper adjudication
especially relating to the possession part and vide order dated
25.09.2004 (Annexure-P/2), the land of Khuman Singh was
released in view of the provisions of the Section 4 of the
Repeal Act, 1999. The petitioner submits that the Authority
has not passed any order in relation to his land whereas, he
was also entitled to get the same relief as has been granted to
Khuman Singh. The learned counsel for the petitioner
submits that the objection submitted before the Competent
Authority has also not been decided, however, the Competent
Authority vide order dated 09.12.2010 (Annexure-P/4) has
observed that the land relating to the petitioner has been
vested in the State under the provisions of the Act, 1976
because in a Revenue Case No.56/A-90 (B-9)/82-83 and in
Possession Case No.352/B-121/93-94, the possession of the
land has been taken over after following due procedure of
5 Writ Petition No.1426/2011
law. Accordingly, the revenue records have been corrected.
Even otherwise, if the petitioner is claiming his possession
over the land in question, the same would be treated to be an
encroachment and thus, as per the provisions of Section 4 of
the Repeal Act, 1999, there is no reason to release the land of
the petitioner.
7. The petitioner, therefore, mainly propounded
rather confined his arguments that the respondents have not
followed the mandatory requirement of the Section 10 of the
Act, 1976 as no notice under Section 10(5) as also under
Section 10(6) has been issued or served upon the petitioner.
The learned counsel for the petitioner submits that in catena
of cases, involving similar issue, this Court has observed that
if such requirement is not fulfilled by the Ceiling Authorities,
the proceedings are declared to be illegal and in view of the
provisions of the Repeal Act, 1999, the land is entitled to be
released. The Hon'ble Apex Court has also affirmed the
decision given by this Court in various cases and is also of
the same opinion that the compliance of Section 10(5) and
10(6) is mandatory and if the same is not followed, the
proceedings initiated by the Ceiling Authorities under the Act,
1976 are liable to be abated. The learned counsel for the
petitioner submits that by the order impugned, the
Competent Authority has not considered this aspect
therefore, the same has been challenged in this petition
6 Writ Petition No.1426/2011
seeking its quashment. To bolster his contention, the learned
counsel for the petitioner has relied upon the case reported in
(2013) 4 SCC 280 parties being [State of Uttar Pradesh Vs.
Hariram] and in SLP No.24985/2018 parties being [State
of Madhya Pradesh Vs. Thamman Chand Koshta]. The
learned counsel for the petitioner also placed reliance upon
the judgment passed by this Court on Writ Appeal
No.509/2017 parties being [Brijesh Gautam Vs. State of
Madhya Pradesh], Writ Appeal No.558/2016 parties being
[State of Madhya Pradesh Vs. Rajubai & others], Writ
Petition No.7255/2013 parties being [Radheshyam
Raikwar Vs. State of Madhya Pradesh], Writ Appeal
No.1055/2017 parties being [State of Madhya Pradesh Vs.
Anees Fatima], Writ Appeal No.854/2014 parties being
[Hemraj Kachhi Vs. State of Madhya Pradesh] and in Writ
Petition No.11515/2013 parties beng [Smt. Gayatri Devi
& others Vs. The State of Madhya Pradesh & another].
8. The respondents have filed their reply stating
therein that the land in question is non diverted but situated
in village Tewar where the provisions of the Act, 1976 are
applicable and considering the commercial importance of the
land, though it is being used for agricultural purposes, the
ceiling proceedings have been initiated against the said land
and a Revenue Case No.56/A-90 (B-9)/82-83 was registered
in which, the petitioner was afforded proper opportunity of
7 Writ Petition No.1426/2011
hearing and the possession was also taken after following due
procedure and fulfilling the mandatory requirement of the
Act, 1976. Accordingly, there is no illegality committed by the
respondents/Authorities and the provisions of Section 4 of
the Repeal Act, 1999 have no application in the present case
and on the basis of which, the claim for releasing the land in
question is absolutely misconceived and the petition deserves
to be dismissed.
9. I have heard the arguments advanced by the
learned counsel for the parties at length and perused the
record of ceiling proceedings produced by the respondents.
10. From a bare perusal of the record, it is seen that in
a Ceiling Case No.56/A-90 (B-9)/82-83, vide order-sheet
dated 30.03.1989, order has been issued for publication of
notice under Section 10(1). Order-sheet dated 20.07.1989
contains about publication of notice of Section 10(1). Vide
order-sheet dated 11.09.1989, it is directed for publication of
notice under Section 10(3) of the Act, 1976. In the order-
sheet dated 06.01.1994, it is shown that the notification
under Section 10(3) of the Act, 1976, was published in the
State Gazette on 21.09.1990 and further direction has been
given for issuance of notice of Section 10(5) of the Act, 1976.
Thereafter, in the aforesaid ceiling case, no further order-
sheet except the order-sheet dated 29.12.1994 is available,
which reveals that the possession of surplus land of villages-
8 Writ Petition No.1426/2011
Tewar, Padua and Silua, No.229/160/422 Patwari Halka
No.29 situated over Khasra Nos.641, 755, 763, 144/1, 167,
137 and 166, area measuring 155950.00 sq. meter has been
taken over by the Tehsildar Nazul on 28.09.1994 in a
Possession Case No.352/B-121/93-94. It further reveals that
after taking over possession, the Compensation Case
No.35/A-90 (B-9)/94-95 has been registered in compliance of
Sections 11 and 14 of the Act, 1976. In the ceiling case, after
order-sheet dated 28.09.1994 nothing further has been
shown. However, in a Possession Case No.352/B-121/93-94,
the order-sheet starts from date 18.04.1994 containing that
the case has been received from the Branch of Urban Land
Ceiling and as per order-sheet dated 18.05.1994, case was
forwarded to Naib Tehsildar for taking possession.
Accordingly, concerning Patwari was asked to proceed for
taking over the possession and thereafter, order-sheet has
been written on 28.09.1994 showing that possession has
been taken and possession report is attached.
11. The record also contains the possession letter
dated 28.09.1994, but the same does not contain the
signature of the land owner from whom possession is said to
be taken over. In the record, a notice dated 27.01.1994 under
Section 10(5) is also available showing that the case has been
fixed for 11.02.1994, but in none of the order-sheets, even
there was no mention as to when the said notice was issued
9 Writ Petition No.1426/2011
to the land owner and there is also no endorsement showing
that the same was ever served upon the land owner. The
notice of Section 10(5) does not contain any endorsement as
to whether it was ever served upon anybody. So, it could
easily be inferred that though the notice of Section 10(5) is
available but was never issued or served. From the record, it
does not reveal that when possession of the land in question
was not voluntarily handed over, then notice under Section
10(6) of the Act, 1976, has been issued or not. From the
record, it is apparent that the authorities have not fulfilled
the mandatory requirement of Section 10(5) and also Section
10(6) of the Act, 1976.
12. From a perusal of the reply submitted by the
respondents, it is apparent that nothing was disputed except
the contention that the petitioner was not given any
opportunity of hearing although, the reply is silent in respect
of mandatory compliance of Section 10(5) and 10(6) of the
Act, 1976. In the reply, it is stated by the respondents that
the compliance of Sections 10 and 11 has also been done and
therefore, ceiling proceedings in respect of the land in
question have already been closed and the land has been
vested in the State. It is also stated in the reply that the Writ
Petition No.1845/2011 decided on 17.01.2002 is not related
with the land of the petitioner, but it is in respect of some
other land and therefore, the petitioner cannot take benefit of
10 Writ Petition No.1426/2011
directions issued by this Court in Writ Petition
No.1845/2011.
13. Considering the contentions raised by learned
counsel for the petitioner that he has confined his arguments
alleging that there was clear violation of compliance of
mandatory requirement of Sections 10(5) and 10(6) of the Act,
1976, therefore, 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 Section 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 Hariram (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 mandatory
requirement and if the same is not followed, the proceedings
11 Writ Petition No.1426/2011
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
12 Writ Petition No.1426/2011
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 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
13 Writ Petition No.1426/2011
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
14 Writ Petition No.1426/2011
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
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 title
absolutely and not possession though
nothing stands in the way of a person
voluntarily surrendering or delivering
possession. The court in Maharaj Singh v.
State of UP and Others (1977) 1 SCC 155,
while interpreting Section 117(1) of U.P.
Zamindari Abolition and Land Reform Act,
1950 held that 'vesting' is a word of slippery
import and has many meaning and the
context controls the text and the purpose
and scheme project the particular semantic
shade or nuance of meaning. The court in
Rajendra Kumar v. Kalyan (dead) by Lrs.
(2000) 8 SCC 99 held as follows:
"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
15 Writ Petition No.1426/2011
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
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
16 Writ Petition No.1426/2011
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 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
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"."
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
17 Writ Petition No.1426/2011
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
18 Writ Petition No.1426/2011
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 "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 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. 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
19 Writ Petition No.1426/2011
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 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'.
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
20 Writ Petition No.1426/2011
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."
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 21 Writ Petition No.1426/2011 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 22 Writ Petition No.1426/2011 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] 23 Writ Petition No.1426/2011
14. Recently, Hon'ble the Apex Court has affirmed the order passed by the Division Bench of this Court in case of Anees Fatima (supra) vide order dated 10.12.2018 passed in Diary No.42231/2018.
15. On the anvil of the aforesaid judgments of this Court as well as the Supreme Court, this Court has no hesitation to say that the proceedings initiated by the respondents/State in respect of vesting of the land in the State under the Act, 1976 are illegal. Furthermore, this Court is also not hesitant to observe that the proper procedure was not followed by the State Authorities for taking possession of the land in question but on the contrary, the petitioner has successfully proved that the land is still in his possession.
16. Accordingly, the proceedings initiated by the respondents under the provisions of the Act, 1976 vide Revenue Case No.56/A-90 (B-9)/82-83 and Possession Case No.352/B-121/93-94 are held illegal as it is apparent that the respondents have not followed and complied the mandatory requirement while initiating such proceedings nor have they taken possession of the land in question by adopting due process of law. That apart, admittedly the physical possession of the land of the petitioner has not been taken over by the respondents and therefore the possession in view of the order passed by the Competent Authority i.e. respondent No.3 vide order dated 09.12.2010 (Annexure-P/4) 24 Writ Petition No.1426/2011 treating the petitioner to be an encroacher, cannot be held to be unauthorized. Accordingly, the order passed by the respondent No.3 on 09.12.2010 (Annexure-P/4) is hereby quashed and the respondents are directed to correct the necessary entries in the revenue records showing the name of the petitioner as owner of the land in question which is said to be vested in the State by virtue of the above referred ceiling proceedings as have been held to be illegal. Let the aforesaid exercise be completed within a period of three months' from the date of submitting the certified copy of this order.
17. With the above directions, the petition filed by the petitioner stands allowed & disposed of.
18. Parties shall bear their own costs.
(SANJAY DWIVEDI) JUDGE Devashish DEVAS Digitally signed by DEVASHISH MISHRA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH JABALPUR, HISH postalCode=482001, st=Madhya Pradesh, 2.5.4.20=db02acf8752ec7d40d 9c7b2706998aa1774d10503fed MISHRA d8b615ae6aa42b0742c1, cn=DEVASHISH MISHRA Date: 2019.02.18 15:28:18 +05'30'