Madhya Pradesh High Court
Sushil Pandey vs The State Of Madhya Pradesh on 20 December, 2023
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 20th OF DECEMBER, 2023
WRIT PETITION No.14335 OF 2010
BETWEEN:-
1. SUSHIL PANDEY, S/O SHRI ONKAR PRASAD
PANDEY, AGED ABOUT 40 YEARS
2. SMT. HEERA BAI, D/O SHRI ONKAR PRASAD
PANDEY, AGED ABOUT 58 YEARS
3. SMT. REETA BAI, D/O SHRI ONKAR PRASAD
PANDEY, AGED ABOUT 45 YEARS
ALL R/O MOUJA-PADWAR, TAHSIL
BAHORIBAND, DISTRICT KATNI
.....PETITIONERS
(BY SHRI ADITYA AHIWASI - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
THE REVENUE SECRETARY, STATE OF M.P.,
BHOPAL (MP)
2. THE COLLECTOR, JABALPUR (MP)
3. THE ADDITIONAL COLLECTOR AND
COMPETENT AUTHORITY, URBAN LAND
CEILING, JABALPUR (MP)
4. TAHSILDAR, NAJUL, JABALPUR (MP)
5. CHATURBHUJ S/O HARI PRASAD AGED
ABOUT 56 YEAR R/O PADWAR, DISTRICT
KATNI
......RESPONDENTS
(RESPONDENTS/STATE BY SHRI ALOK AGNIHORTI - GOVERNMENT
ADVOCATE)
2
..............................................................................................................................................................................
Reserved on : 28.11.2023
Pronounced on : 20.12.2023
..............................................................................................................................................................................
This petition having been heard and reserved for orders,
coming on for pronouncement this day, the Court pronounced the
following:
ORDER
Since pleadings are complete and learned counsel for the parties are ready to argue the case finally, therefore, looking to the dispute involved in the case, it is heard finally.
2. The petitioners by the instant petition filed under Article 226/227 of the Constitution of India have claimed the following relief (s):-
"(a) It may kindly be directed and held that on account of death of the original holder Late Shri Thakur Prasad on 26.09.80 all the actions, proceedings and orders passed in Case No.144/A-90(B-9)/79-80 parties Thakur Prasad son of Shiv Prasad by the respondent No.3 and all other proceedings by the other authorities including the respondents 4 and 5 are void and nullity as also without jurisdiction.
(b) That since the possession of any part of khasra No.6/1, area 0.951 hect of Village Purva, Tahsil and District Jabalpur was never taken and the petitioners are in possession, hence a writ in the nature of prohibition prohibiting the respondents from interfering with the 3 peaceful cultivating possession of the said land by the petitioners and from disturbing their possession.
(c) It may kindly be directed that the whole proceedings of the said ceiling case stood abated in view of Sections 3 and 4 of the Urban Land (Ceiling and Regulation) Repeal Act 1999.
(d) In may kindly be directed to the respondents to delete the name of the State-Najul from all the revenue records on Kh. No.6/5, area 0.801 and the whole area 0.951 hect. may kindly be ordered to be recorded in the name of the petitioners in all the revenue records.
(e) Costs may kindly be awarded.
(f) Any other writ/direction/relief/order may also kindly be issued/awarded/passed as may be found fit and necessary under the facts and circumstances of the case.
The respondents may also kindly be prohibited to allot the land to any person.
3. The facts of the case in nutshell are that Late Shri Thakur Prasad s/o Shiv Prasad R/o Village Purwa, Tahsil and District Jabalpur being the absolute bhoomiswami was cultivating the land which is an agricultural land bearing Khasra No.6/1 area measuring 0.951 hectare situated at Village Purwa, Tahsil and District Jabalpur.
(3.1) As pleaded in the petition, the land in question was being used by the land owner for agricultural purpose, therefore, it was exempted from the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (in short the 'Act, 1976'). According to the petitioners, despite using the land 4 for agricultural purposes, a case under the provisions of the Act, 1976 got registered before the Additional Collector (respondent No.3) so as to declare the land surplus and its vesting in the State Government. However, during pendency of the said case, though the original holder of the land Shri Thakur Prasad Aswasthi died on 26.09.1980, but his legal representatives were not brought on record and proceeding against the dead person was continued and ultimately, the competent authority had passed an order on 15.10.1980 that too against a dead person declaring 86220 square feet which comes to 8010 square meters of the land surplus.
(3.2) Subsequently, the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (in short the Repeal Act, 1999) came into force and after coming into force of the Repeal Act, 1999, the respondents prepared the documents showing the possession of the land alleged to be declared surplus and in the revenue record, it got recorded in the name of State-Najul and renumbered as Khasra No.6/5, area 0.801. As pleaded in the petition that Shri Thakur Prasad, the original holder of the land during his lifetime had executed a 'Will' on 17.11.1977 in favour of his daughter namely Smt. Sulochna Bai Pandey who became the absolute bhoomiswami of the land and also holding the possession of the land i.e. Khsara No.6/1 area measuring 0.951 hectare, but she also died on 27.10.1994 leaving behind her legal heirs i.e. the petitioners, who became the bhoomiswami and cultivating the land. As per the petitioners, the possession of the land in question had never been taken by the respondents and the said land was continuously in possession of original owner and after his death, the legal heirs are holding the same.
(3.3) The petitioners being the legal heirs are challenging the proceeding initiated by the respondents mainly on the ground that it was initiated 5 against a dead person and declaring the land surplus and vesting it in the State Government are also illegal for the reason that the orders in that respect had also been passed against a dead person. As per the petitioners, the fact with regard to death of original holder of the land was very much in the knowledge of the respondents despite that no legal heirs were brought on record and the proceeding was continued and land had been declared surplus. According to the petitioners, after the death of original holder of the land, when his legal heir Smt. Sulochna Bai Pandey came to know about the correction made in the revenue record and the entries made in favour of the State Government, then she moved an application on 16.01.1987 claiming therein that her name be recorded in the revenue record as a land owner as the original owner of the land Shri Thakur Prasad Awasthi had executed a 'Will' in her favour, but neither the revenue record was corrected nor any heed was paid on her application and the proceeding against a dead person was continued. Thereafter, Smt. Sulochna Bai Pandey opposing the proceeding initiated by the respondents had again filed an application on 28.03.1987 and also requested that the proceeding be stayed as against a dead person it cannot be continued, but her request was turn down.
(3.4) In the petition, it is averred that no proceeding under Section 10(5) of the Act, 1976 had been initiated nor any notice was issued and served upon the land owner. According to the petitioners, not only the notice under Section 10(5) of the Act, 1976, but even the draft statement prepared under Section 10(1) and final statement were also not served upon the land owner and, therefore, it is claimed that the proceeding for determining the surplus land under the provisions of the Act, 1976 was illegal and possession has been taken only on paper, but no physical possession has 6 been taken over by the respondents and, therefore, it is claimed by the petitioners that in light of Sections 3 and 4 of the Repeal Act, 1999, the proceeding of the Act, 1976 be declared abated.
(3.5) The respondents have filed their return whereunder they have raised an objection about maintainability of petition saying that the petition suffers from delay and laches and no proper explanation has been given by the petitioners as to why the petition could not be filed in time. It is also stated in the return that an application for bringing the legal heirs of original owner on record was moved by Smt. Sulochna Bai Pandey before the competent authority on 11.05.1987 along with the death certificate of Late Thakur Prasad Awasthi and also with the 'Will' dated 17.11.1977 and that application got allowed and name of Smt. Sulochna Bai Pandey was substituted on all the relevant documents. It is also stated in the return that Smt. Sulochna Bai Pandey was personally appeared in the proceeding and signed the documents on several occasions. It is stated in the return that Smt. Sulochna Bai Pandey had also moved an application under Section 20 of the Act, 1976, which was dismissed on 10.05.1989 by the State Government and that order had attained finality. According to the respondents, the physical possession over the land was taken on 19.08.1988 after following proper procedure and accordingly, this petition deserves to be dismissed. The respondents have also stated that the proceeding under Sections 6 and 8 was done as per the procedure and after preparing the statement under Section 8(1), it got issued on 15.10.1980 declaring the surplus land. As per the respondents, the name of original land holder was substituted with the legal heirs and after issuing notice under Section 8(1) when no objection was received, the proceeding under Section 10 was taken up and possession was taken in the year 1989.
7According to the respondents, an application under Section 20(1) for seeking exemption of the land was also rejected by the Collector on 10.05.1989, but that order has not been assailed and after such a long lapse of time, this petition cannot be entertained.
4. Learned counsel for the petitioners has submitted that the respondents have taken a false stand in their return. He has submitted that from perusal of order-sheet dated 28.03.1987 of a proceeding initiated in a case No.144/A-90(B-9)/79-80, it is clear that on 02.12.1980, the counsel appeared on behalf of the original owner had informed the Court about the death of the holder of the land and thereafter, the Court granted time to submit the vakalatnama on behalf of the legal heirs, but nothing was done and even on 19.06.1981, the Court again granted time to brought the name of legal heirs on record. According to him, order-sheet dated 21.03.1984 reveals that draft statement issued under Section 8 was said to be served and pursuant thereto, no objection was received thereafter and then further proceeding initiated under Section 9 and thereafter proceeding under Section 10 was initiated and notice under Section 10(1) was published in the State Gazette on 01.03.1985. Thereafter, further publication of notice under Section 10(3) was sought to be published and that was published in State Gazette on 04.04.1986 and thereafter further proceeding under Section 10(5) for taking possession was to be initiated. The order-sheet dated 28.03.1987 provides as under:-
'vkosnd Jh 'kqDyk vf/koDrk }kjk mifLFkr % mUgksus cryk;k fd /kkjd izlkn Bkdqj dh e`R;q gks xbZ gS vkSj muds okfjlksa dks izdj.k esa vko';d i{k cuk;k tkosA rnkuqlkj mudh iqf=;ksa Hkkxorh ckbZ vkSj lqykspuk ckbZ dks i{kdkj cuk;k tkosA Jh 'kqDyk izdj.k esa /kkjk 10¼3½ dh dk;Zokgh LFkfxr djus gsrq vkosnu i= is'k djrs gSa dk;Zokgh LFkfxr djus dk dksbZ vk/kkj ugha gS vr,o vkosnu i= fujLr fd;k tkrk gSA izdj.k esa vkxs dk;Zokgh dh tkosA' In view of the above, it is clear that the application for bringing legal heirs 8 of original owner on record has been rejected. According to him, the request for staying the further proceeding under Section 10 for taking possession be stayed was also rejected and nobody was brought on record in place of dead person namely Late Thakur Prasad Awasthi.
5. Learned counsel for the petitioners has also filed an order dated 15.10.1980 which clearly indicates that it was passed against a dead person Late Thakur Prasad Awasthi in revenue case No.144/A-90(B-9)/79-
80. He has further pointed out that the respondents have made a false statement and fabricated the documents Annexure-P/9 which is the possession letter showing on 19.08.1988 the possession over the land in question has been taken over and the signature of Smt. Sulochna Bai Pandey is also there. However, according to learned counsel for the petitioners, the order-sheet dated 29.02.1992 passed in a possession case No.84/B-121/1992-93 Thakur Prasad s/o Shiv Prasad shows that proceeding of possession initiated and notice with regard to the same directed to be issued asking parties to remain present on 03.03.1992 on spot and the said order-sheet indicates that possession over the land i.e. 8010.08 square meters has been taken over. He has submitted that it is something surprising as to how two possession letters shown in respect of the same land in which one is of 1988 whereas the second is of 1992 and both are in the name of Thakur Prasad Awasthi who died on 26.09.1980. He has also filed a document (Annexure-P/11) which is the notice issued to Late Thakur Prasad s/o Shiv Prasad on 29.08.1992 asking him to remain present on spot on 03.03.1992 so as to handover the possession of the land. However, the reverse side of Annexure-P/11 very clearly indicates that the process server did not get the person concerned and as such, affixed the notice. It clearly indicates that all the proceedings of the provision of the 9 Act, 1976 were initiated against a dead person without impleading any of his legal heirs on record. Second possession letter is of 1992 (Annexure-P/12) that too also in the name of Late Thakur Prasad.
6. I have heard the arguments advanced by learned counsel for the petitioners and perused the record.
7. The documents annexed with the petition clearly indicate that all the proceedings were initiated by the respondents against a dead person and physical possession over the land in question was never taken but the respondents by fabricating the documents had tried to establish that possession over the land in question has been taken over. In the petition, though a stand has been taken by the petitioners that that no notice under Section 10(5) was issued to them, but no reply to the said fact has been given by the respondents to rebut the stand of the petitioners. However, they could produce the notice if any issued under Section 10(5). The petitioners have also filed the documents i.e. photographs showing that they are cultivating the land and still holding the possession over the same.
8. It is not a case in which the petitioners are fighting for their rights and all of a sudden they filed a petition before this Court. The legal heirs of Late Thakur Prasad Awasthi, in a pending proceeding of the provisions of the Act, 1976 had moved an application for bringing them on record, but that application got rejected. The documents available on record show that all the proceedings were initiated against the dead person and in the order dated 01.09.2004 (Annexure-P/15) passed by the Additional Collector in which all those objections were raised before the competent authority that the proceedings of the Act, 1976 are illegal and in pursuance to Section 4 of the Repeal Act, 1999, the proceedings have to be declared abated, the competent authority had rejected the claim saying that the 10 possession over the land has been taken over by issuing notice under Section 10(5) which got served by adopting the method of affixation. However, it is clear from the record that Late Thakur Prasad, the original owner already died on 26.09.1980 and no notice under Section 10(5) was ever issued and the notice which was referred by the competent authority in its order is Annexure-P/11 which was in the name of Late Thakur Prasad asking him to remain present on 03.03.1992 at spot, but how could a dead person appear on spot at the given date and time and as such, nobody found to the server while serving the notice. So far as the mode of affixing the notice adopted by the process server is concerned, the same is not applicable in the present facts and circumstances for the reason that when the authority is already aware of the fact that Thakur Prasad, the original owner of the land has already expired and the application for bringing the legal heirs on record has also been rejected by the authority, then as to whom the notice could be served. Under the existing circumstances, the proceedings of the Act, 1976 are nothing but just a mockery of justice. From the return of the respondents, it is clear that they have not filed any document to show that notice under Section 10(5) was ever issued to the petitioners. However, they have filed documents (Annexure-R/1), the possession letter dated 19.08.1988, but they are silent on the fact when the possession letter dated 19.08.1988 contains the signature of Smt. Sulochna Bai, then as to why further proceeding of possession was again initiated on 29.02.1992 (Annexure-P/10).
9. The Supreme Court in a case reported in a case reported in (2015) 2 SCC 390 [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] has 11 considered almost the similar situation in a proceeding initiated under the provisions of the Act, 1976 against a dead person without impleading the legal heirs on record and thereafter that proceeding was said to be void ab initio and set aside by the Supreme Court. In the said case, the Supreme Court has observed as under:-
'21. Factum of death of Athili Narasayyamma on 15-9-1977 and plea as to non-impleading of legal representatives in the proceedings before the competent authority was raised at all stages i.e. before the appellate authority as well as before the Single Judge and also in the writ appeal. Considering the participation of sons, daughters and grandchildren of Athili Narasayyamma before the competent authority, the appellate authority as well as the learned Single Judge (Writ Petition No. 18340 of 2001) held that the legal representatives of Athili Narasayyamma had sufficient opportunity of putting forth their objections on behalf of Athili Narasayyamma and the order passed by the competent authority does not suffer from any illegality. In Writ Appeal No. 1840 of 2008, the Division Bench [Athili Appala Swamy v. Commr., Writ Appeal No. 1840 of 2008, order dated 2-2-2009 (AP)] also considered this aspect and found that all the legal representatives were already on record and participated in the proceedings and cannot complain of non-impleading of legal representatives. In the review petition while setting aside its own order and then orders of the authorities under the ULCR Act, the High Court observed that there was no proper representation of the estate of the deceased Athili Narasayyamma by proper legal representatives and any proceedings taken against a dead person are totally void ab initio and the order dated 5-1-1982 is void and illegal. While so saying, the High Court has completely ignored the participation of sons, daughters and grandchildren of Athili Narasayyamma in the proceedings before the competent authority and that the said objection was considered and negatived by all the forums. Insofar as the applicability of the ULCR Repeal Act, 1999 is concerned, in the impugned order [Athili Appala Swamy v. Commr. of Appeals, Review WAMP No. 1540 of 2009 in Writ Appeal No. 1840 of 2008, order dated 30-4-2011 (AP)] only passing observations have been made that "... all the proceedings have no effect in view of the repealing Act". In our view, the impugned order [Athili Appala Swamy v. Commr. of Appeals, Review WAMP No. 1540 of 2009 in Writ Appeal No. 1840 of 2008, order dated 30-4-2011 (AP)] passed by the High Court in the review petition is erroneous and not sustainable.' In the aforesaid case, the land owner after submitting a declaration under Section 6 of the Act, 1976 had died and thereafter his legal representative were not brought on record and the whole proceeding under the provisions 12 of the Act, 1976 were initiated against the dead person.
10. In the present case as is clear from the existing position that the original land owner though died, but his legal representatives even after making request to be brought on record, not allowed to participate and their application got also rejected. Further, it is clear from the record and discussions made hereinabove that the possession of the land was not taken over by the respondents after following the procedure as mandatory and required under Section 10 of the Act, 1976. In number of occasions, it has been observed that when the possession has been taken over without following due procedure, then it will be considered that the possession if shown to have been taken over even on papers, then the same would be a de facto possession and under such circumstances, as per Section 4 of the Repeal Act, 1999, the proceedings initiated under the provisions of the Act, 1976 can be declared abated.
11. The Supreme Court in a case reported in (2013) 4 SCC 280 [State of Uttar Pradesh Vs. Hari Ram] has dealt with this situation and has not acknowledged the possession said to have been taken over and considered that the land vested in the State only by issuing notice under Section 10(5). The Supreme Court has observed that requirement of giving notice under sub-sections (5) and (6) of Section 10 is mandatory and after vesting of land if compensation is not paid under Section 11, meaning thereby, the land holder being dispossessed without notice, the Supreme Court has observed that under such circumstances when possession has not been properly taken over by adopting due procedure of law that is considered to be a de facto possession and under such circumstances proceeding initiated under the provisions of the Act, 1976 are treated to be abated. The observation made by the Supreme Court dealing with the said situation is 13 as under:-
'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 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 14 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".
38. The above reasoning is in consistence with the 1983 Directions which have been issued by the State Government in exercise of the powers conferred under Section 35 of the Act. The Directions clearly indicate the procedure for taking possession of the vacant land in excess of the prescribed ceiling limit, which reads as under:
The Uttar Pradesh Urban Land Ceiling (Taking of Possession, Payment of Amount and Allied Matters) Directions, 1983 (Directions issued by the State Government under Section 35 of the 1976 Act):
"In exercise of the powers under Section 35 of the Urban Land (Ceiling and Regulation) Act, 1976 (33 of 1976), the Governor is pleased to issue the following directions relating to the powers and duties of the competent authority in respect of amount referred to in Section 11 of the aforesaid Act to the person or persons entitled thereto:
1 Short title, application and commencement.--These Directions may be called the Uttar Pradesh Urban Land Ceiling (Taking of Possession, Payment of Amount and Allied Matters) Directions, 1983) 2 The provisions contained in this direction shall be subjected to the provisions of any directions or rules or orders issued by the Central Government with such directions or rules or orders.
3 They shall come into force with effect from the date of publication in the gazette.
2.Definitions.-- ****
3.Procedure for taking possession of vacant land in excess of ceiling limit.--(1) The competent authority will maintain a register in Form No. ULC-I for each case regarding which notification under sub-section (3) of Section 10 of the Act is published in the gazette.
4. (1) **** (2) An order in Form No. ULC-II will be sent to each landholder as prescribed under sub-section (5) of Section 109 of the Act and the date of issue and service of the order will be entered in Column 8 of Form No. ULC-I. (3) On possession of the excess vacant land being taken in accordance with the provisions of sub-section (5) or sub-section (6) of Section 10 of the Act, entries will be made in a register in Form No. ULC-III and also in Column 9 of Form No. ULC-I. The competent authority shall in token of verification of the entries, put his signatures in Column 11 of Form No. ULC-I and Column 10 of Form No. ULC-III.15
Form No. ULC-I Register of notice under Sections 10(3) and 10(5) (1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) Sl. Sl. No. of Case Date of Land Date of Remarks Signature No. register number Notificati to be taking of of receipt on under acquire over competent Sl. No. of Section d posse- authority register 10(3) Village ssion of taking Mohali possessio n Form No. ULC-II Notice order under Section 10(5) [See clause (2) of Direction (3)] In the court of competent authority ULC ..................
No. .................... Date ..................Sri/Smt ................................... T/o ...........................
In exercise of the powers vested under Section 10(5) of the Urban Land (Ceiling and Regulation) Act, 1976 (33 of 1976), you are hereby informed that vide Notification No. .......... dated ..... under Section 10(1) published in Uttar Pradesh Gazette dated ...... following land has vested absolutely in the State free from all encumbrances as a consequence Notification under Section 10(3) published in Uttar Pradesh Gazette dated ....... Notification No. ......... dated ..... With effect from .......... you are hereby ordered to surrender or deliver the possession of the land to the Collector of the District authorised in this behalf under Notification No. 324/II-27-U.C.77 dated 9-2-1977, published in the gazette, dated 12-3-1977, within thirty days from the date of receipt of this order otherwise action under sub-section (6) of Section 10 of the Act will follow.
Description of vacant land
Location Khasra No. Area Remarks
identification
(1) (2) (3) (4)
Competent Authority
...............................
...............................
No. ..................... Dated.........................
Copy forwarded to the Collector ............ with the request that 16 action for immediate taking over of the possession of the above detailed surplus land and its proper maintenance may, kindly be taken and an intimation be given to the undersigned along with the copy of the certificate to verify.
Competent Authority ............................
.........................."
39. The abovementioned directives make it clear that sub-section (3) takes in only de jure possession and not de facto possession, therefore, if the landowner is not surrendering possession voluntarily under sub-section (3) of Section 10, or surrendering or delivering possession after notice, under Section 10(5) or dispossession by use of force, it cannot be said that the State Government has taken possession of the vacant land.
40. The scope of Act 33 of 1976 came up for consideration before this Court on a few occasions, reference may be made to certain judgments, even though there has been no elaborate discussion of the provision of the Act and its impact on the Repeal Act. Reference may be made to Pt. Madan Swaroop Shrotiya Public Charitable Trust v. State of U.P. [(2000) 6 SCC 325] , Ghasitey Lal Sahu v. Competent Authority [(2004) 13 SCC 452] , Mukarram Ali Khan v. State of U.P. [(2007) 11 SCC 90] and Vinayak Kashinath Shilkar v. Collector and Competent Authority [(2012) 4 SCC 718 : (2012) 2 SCC (Civ) 652] .
Effect of the Repeal Act
41. Let us now examine the effect of Section 3 of Repeal Act 15 of 1999 on sub-section (3) of Section 10 of the Act. The Repeal Act, 1999 has expressly repealed Act 33 of 1976. The objects and reasons of the Repeal Act have already been referred to in the earlier part of this judgment. The Repeal Act has, however, retained a saving clause. The question whether a right has been acquired or liability incurred under a statute before it is repealed will in each case depend on the construction of the statute and the facts of the particular case.
42. The mere vesting of the land under sub-section (3) of Section 10 would not confer any right on the State Government to have de facto possession of the vacant land unless there has been a voluntary surrender of vacant land before 18-3-1999. The State has to establish that there has been a voluntary surrender of vacant land or surrender and delivery of peaceful possession under sub-section (5) of Section 10 or forceful dispossession under sub-section (6) of Section 10. On failure to establish any of those situations, the landowner or holder can claim the benefit of Section 4 of the Repeal Act. The State Government in this appeal could not establish any of those situations and hence the High Court is right in holding that the respondent is entitled to get the benefit of Section 4 of the Repeal Act.
1743. We, therefore, find no infirmity in the judgment [State of U.P. v. Hari Ram, (2005) 60 ALR 535] of the High Court and the appeal is, accordingly, dismissed so also the other appeals. No documents have been produced by the State to show that the respondents had been dispossessed before coming into force of the Repeal Act and hence, the respondents are entitled to get the benefit of Section 4 of the Repeal Act. However, there will be no order as to costs.'
12. Furthermore, this Court in W.P. No.7023 of 2018 [Smt. Maya Deb and others Vs. State of M.P. and another] dealing with the case of Hari Ram (supra) has observed as under:-
'7. The view of the Supreme Court as has already been taken in re Hari Ram (supra) has not been disturbed so far. The Supreme Court and High Courts have been consistently following the legal position as has been settled in re Hari Ram (supra) and declared the proceeding initiated under the provisions of Act, 1976 abated. This Court also dealt with similar situation in re Komal Kewat and ors. v. State of M.P. & anr. in W.P.No.13623/2019 and observed as under:-
"18. The application filed under Section 4 was rejected on the ground that the case of the petitioners falls within the purview of section 3(1) (a) of the Act, 1999 which reads thus:-
"3(1) (a). The vesting of any vacant land under subsection (3) of Section 10, possession of which has been taken over the State Government or any person duly authorized by the State Government in this behalf or by the competent authority."
However, Section 4 of the Act, 1999 under which application is filed provides as under:-
"4. Abatement of legal proceedings.- All proceedings relating to any order made or purported to be made under the principal Act pending immediately before the commencement of this Act, before any court, tribunal or other authority shall abate :
Provided that this section shall not apply to the proceeding relating to sections 11, 12, 13 and 14 of the principal Act in so far as such proceedings are relatable to the land, possession of which has been taken over by the State Government or any person duly authorized by the State Government in this behalf or by the competent authority."
But 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 18 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 subsection (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.
1935. 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 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 subsection (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 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".
19. 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 (supra). 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 20 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, 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 subsection (5) of Section 10 or forceful 21 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."
20. Furthermore, the Division Bench of this Court in case of Ram Kumar Pathak Vs. State of Madhya Pradesh and Others, Writ Appeal No. 734/2008 has dealt with the circumstance as to 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:- ........
(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 affixture of notice at the house of the holder. The notice is also silent that on which date and at what time, the affixture 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 22 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. 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
13. In view of the aforesaid enunciation of law, it is clear that in the present case all the proceedings initiated by the respondents under the provisions of the Act, 1976 are illegal and, therefore, in view of the provisions of Sections 3 and 4 of the Repeal Act, 1999, the same are hereby declared abated. As claimed by the petitioners that they are still in possession over the land and cultivating the same, therefore, the only requirement is that the revenue records be corrected and as such, it is directed that the name of present petitioners be recorded in the revenue records by replacing the name of State or replacing the name of original land holder i.e. Late Thakur Prasad s/o Shiv Prasad who executed the Will in favour of Smt. Sulochna Bai w/o Onkar Prasad, who later on died leaving behind the present petitioners.
14. With the aforesaid, the petition filed by the petitioners stands allowed.
15. Needless to say that the aforesaid exercise be completed within a period of three months from the date of receipt of copy of this order.
(SANJAY DWIVEDI) JUDGE dm DEVASHISH MISHRA 2023.12.21 10:55:22 +05'30'