Madhya Pradesh High Court
Dhanpal vs State Of M.P. on 10 January, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
WRIT PETITION No. 2254 of 2006
DHANPAL
Versus
STATE OF M.P. AND OTHERS
Appearance:
Shri Y.P.S. Rathore - Advocate for petitioner.
Shri M.S. Jadon - Government Advocate for
respondents/State.
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Reserved on 11.12.2024
Delivered on 10.01.2025
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ORDER
This petition under Article 226 of the Constitution India has been filed by the petitioner being aggrieved by the action of the respondents by which they are trying to take possession of the land (part of survey No.63) claiming that the petitioner's land has been declared surplus under the provisions of Urban Land Ceiling and Regulation Act, 1976.
2. In brief, the facts of the case are that petitioner is the Bhoomiswami of agricultural land bearing survey No.63 (area 2.749 hectare) situated at Village Chirwai Tehsil and District Gwalior. Earlier the land was recorded in the name of Babu (father of petitioner). After the death of father of petitioner, the land was inherited by five sons and wife of Babu jointly and their names were Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 28-01-2025 12:03:14 PM 2 mutated jointly in the revenue records. Thereafter partition took place between all the joint owners and as per partition land admeasuring 6 Bigha and 11 Biswa was received by Sarmania, Rajkumar and Ram Singh, land admeasuring 2 Bigha 4 Biswa was received by Ramlal and land admeasuing 4 Bigha and 8 Biswa was received by Mulara and petitioner (Dhanpal). It is not disputed that after the death of Babu all the sons and wife of late Babu received their shares and petitioner alongwith his brother Mularam were doing cultivation on their respective portions and were in possession jointly on part of Survey No.63.
3. The proceedings under the Ceiling Act were initiated against the petitioner and the land admeasuring 3081.5 sq. meter was declared as surplus but thereafter nothing had been done in the matter for taking possession of the land so declared surplus. Just before filing of the petition, some persons alongwith revenue authorities approached at the spot and disclosed that the land had been allotted to them by the respondent No.3 and tried to dispossess the petitioners, thus constrained, a representation was submitted by the petitioner before the respondents, but to no avail. Hence, the present petition came to be filed.
4. As per the petitioner, the land in question earlier belonged to his father Babu, whose name was recorded as Bhoomiswami over Khasra No.63 in the Samwat 2026 to 2039 much before the enforcement of Urban Land (Ceiling & Regulation) Repeal Act, 1999, thus, there was no reason or justification at all for initiating the proceedings under the Urban Land Ceiling Act against the petitioner.
5. The petitioner has in fact claimed that in the year 1999, the Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 28-01-2025 12:03:14 PM 3 Act of 1976 has been repealed by Urban Land (Ceiling & Regulation) Repeal Act, 1999, which provided that if any proceedings relating to any order made or purported to be made under the Principal Act i.e Act of 1976 is pending immediately before commencement of Act of 1999 before any court, tribunal or other authority, said proceedings shall abate. It also provides that if possession of the land, which is said to have been vested in the State under the provision of Act of 1976, has not been taken over then that proceeding of vesting of land under the provision of Act of 1976 shall also be treated to be abated.
6. As per the petitioner, survey No. 63 was sub divided between the members of the family after the death of Babu by the Competent Authority, no proceedings under the Urban Land Ceiling and Regulation Act, 1976, were initiated against other Bhoomiswami of survey No.63 which was sub divided between the Bhoomiswami prior to notice under Section 10(5) of Urban Land Ceiling and Regulation Act, 1976 and as such, the notice itself is bad in law.
7. The possession receipt Annexure R/9 filed by the respondent was prepared without following the procedure and ex- parte possession was taken. No signatures of any persons who were actually Bhoomiswamis of survey No.63, which was already sub divided by the Competent Authority were taken, which goes to show that the entire proceedings were falsely prepared. Hence, it is prayed that directions be issued to the respondents to quash all proceedings initiated under the provisions of Urban Land Ceiling and Regulation Act, 1976.
8. Learned Government Advocate for respondent/State on the other hand submits that the possession of disputed land admeasuring Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 28-01-2025 12:03:14 PM 4 3081.5 sq. meter from survey No.63 situated at Village Chiwai District Gwalior was taken over on 5.9.1990 by the Government in the proceedings under Urban Land Ceiling and Regulation Act, 1976. On 9.9.1987 petitioner had filed his statement u/S. 6(2) of Urban Land Ceiling and Regulation Act, 1976 and after considering the statement submitted by the petitioner, report of Town and Country Planning and Revenue Inspector, the Competent Authority issued a draft statement on 31.12.1987 which was served on the petitioner and a notice u/S. 8(3) was served on him stating that if the petitioner has any objection to the draft statement, the same may be filed within thirty days, but since the petitioner did not file any objection, then final statement was prepared on 19.09.1989 which was served on the petitioner. Thereafter, the land measuring 3081.5 sq. meter which is 1/6 part of the total land survey No.63 was declared surplus. Thereafter, notification u/S.10(1) of the Act was published in the gazette notification on 3.10.1989.
9. It was further submitted that after publication of notification u/S.10(1), no objections were submitted from the petitioner. Thereafter, notification u/S.10(3) was published on 29.11.1989. Thereupon, notice u/S. 10(5) of the Urban Land Ceiling and Regulation Act, 1976 was issued to the petitioner with the intention that the petitioner would surrender or deliver the possession of the land mentioned in the notification within 30 days of service of notice, which was served on the petitioner on 10.01.1990. Since the petitioner failed to comply with the directions issued vide notice u/S.10(5), competent Authority took possession of the vacant land ex-parte on 05.09.1990. Thus, in such circumstances, the proceedings under Urban Land Ceiling and Regulation Act, 1976 Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 28-01-2025 12:03:14 PM 5 were duly initiated and the petitioner had duly represented his case before the Authorities. Since the possession of subject land having been taken over prior to coming into force of Repeal Act, therefore, proceedings cannot be said to be abated under the Repealed Act. Hence, it is prayed that the present petition be dismissed. To bolster his submissions, learned counsel for the State has relied upon the judgment rendered by the Division Bench of this Court in the case of Ramnarayan and Ors. Vs. State of M.P. (W.A. 81/2006) passed on 14.02.2022.
10. Heard counsel for the parties and perused the record.
11. The Supreme Court in case of (State of U.P. Vs. Hariram) reported in (2013) 4 SCC 280 has already laid down a law that before taking possession notice under Section 10(5) and under Section 10(6) of Act 1976 is a mandatory requirement and if that is not followed and possession has shown to have been taken the said procedure is defective and illegal and taking possession cannot be said to be proper. The Supreme Court in 31, 34, 35, 36 , 37 to 43 has observed as under :-
Voluntary surrender
31. The "vesting" in sub-section (3) of Section 10, in our view, means vesting of title absolutely and not possession though nothing stands in the way of a person voluntarily surrendering or delivering possession. The Court in Maharaj Singh v. State of U.P. [(1977) 1 SCC 155] , 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. The Court in Rajendra Kumar v. Kalyan [(2000) 8 SCC 99] held as follows: (SCC p. 114, para 28) "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 [(1878) 4 QBD 104 (CA)] : Stroud's Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 28-01-2025 12:03:14 PM 6 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 authorisation cannot however but be termed to be a contingent event. To 'vest', cannot be termed to be an executory devise. Be it noted however, that 'vested' does not necessarily and always mean 'vest in possession' but includes 'vest in interest' as well."
32. We are of the view that so far as the present case is concerned, the word "vesting" takes in every interest in the property including de jure possession and, not de facto but it is always open to a person to voluntarily surrender and deliver possession, under Section 10(3) of the Act.
33. Before we examine sub-section (5) and sub-section (6) of Section 10, let us examine the meaning of sub-section (4) of Section 10 of the Act, which says that during the period commencing on the date of publication under sub-section (1), ending with the day specified in the declaration made under sub- section (3), no person shall transfer by way of sale, mortgage, gift or otherwise, any excess vacant land, specified in the notification and any such transfer made in contravention of the Act shall be deemed to be null and void. Further, it also says that no person shall alter or cause to be altered the use of such excess vacant land. Therefore, from the date of publication of the notification under sub-section (1) and ending with the date specified in the declaration made in sub-section (3), there is no question of disturbing the possession of a person, the possession, therefore, continues to be with the holder of the land.
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-
Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 28-01-2025 12:03:14 PM 7section (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 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 Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 28-01-2025 12:03:14 PM 8 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.
Form No. ULC-I Register of notice under Sections 10(3) and 10(5) (1) (2) (3) (4) (5) (6) (7) Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 28-01-2025 12:03:14 PM 9 (8) (9) (10) (11) Sl. No. Sl. No. of register of receipt Sl. No. of register of taking possession Case number Date of Notification under Section 10(3) Land to be acquired Village Mohali Date of taking over posse-ssion Remarks Signature of competent authority 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 Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 28-01-2025 12:03:14 PM 10 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. identification Area Remarks (1) (2) (3) (4) Competent Authority ...............................
...............................
No. .....................
Dated.........................
Copy forwarded to the Collector ............ with the request that 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 ............................
.........................."
Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 28-01-2025 12:03:14 PM 1139. 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.
43. We, therefore, find no infirmity in the judgment 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 Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 28-01-2025 12:03:14 PM 12 to get the benefit of Section 4 of the Repeal Act. However, there will be no order as to costs.
12. In a recent decision in the case of State of Assam Vs.Bhaskar Jyoti Sarma, reported in (2015) 5 SCC 321. It has been observed in paragraph 11 as under :
"11. Section 3 of the Repeal Act postulates that vesting any vacant land under Sub-section (3) of Section 10, is subject to the condition that possession thereof has been taken over by the competent authority or by the State government or any person duly authorised by the State government. The expression "possession" used in Section 3 (supra) has been interpreted to mean "actual physical possession" of the surplus land and not just possession that goes with the vesting of excess land in terms of Section 10(3) of the Act............"
13. From a perusal of the record, it appears that notice under Section 10(5) of the Act was served on the petitioner on 10.01.1990 and in pursuant to the notice, the possession was taken on 05.09.1990 after expiry of about eight months, but prior to that on 15.03.1990, the Tehsildar had carried out batankan of the said land in which land bearing survey No.69/2 Rakwa 4153 consisting 3081.5 sq. meter surplus land fell into the share of petitioner. The petitioner has also filed copy of Khasra of the year 2005-06 (Annexure P/6), indicating that the petitioner was in possession of the land. No proof of voluntary surrender by the tenure holder is on the record. On the other hand, the possession memo (Annexure R/9) indicates that the signature of petitioner has not been placed on the possession memo.
14. The normal mode of taking possession is drafting a punchnama in the presence of panchas and taking possession and giving delivery to the beneficiaries. Subsequent thereto, the retention of possession would tantamount to be illegal or unlawful possession. This view was held in Balmokand Khatri Educational and Industrial Trust Vs. State of Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 28-01-2025 12:03:14 PM 13 Punjab (AIR 1996 SC 1239), wherein the Supreme Court held:
4. It is seen that the entire gamut of the acquisition proceedings stood completed by 17-4-1976 by which date possession of the land had been taken. No doubt, Shri Parekh has contended that the appellant still retained their possession. It is now well settled legal position that it is difficult to take physical possession of the land under compulsory acquisition. The normal mode of taking possession is drafting the panchnama in the presence of panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would tantamount only to illegal or unlawful possession."
15. In Sita Ram Bhandar Society Vs. Govt. of NCT of Delhi (2009) 10 SCC 501 and Omprakash Verma Vs. State of A.P( 2010) 13 SCC 158, it was held that when possession is to be taken of a large tract of land then it is permissible to take possession by a properly executed panchnama.
16. In Banda Development Authority Vs. Moti Lal Agarwal (2011) 5 SCC 394 the Supreme Court laid down the following principles as to what act would constitute taking possession of an acquired land, namely:
"(i) No hard-and-fast rule can be laid down as to what act would constitute taking of possession of the acquired land .
(ii) If the acquired land is vacant, the act of the State authority concerned to go to the spot and prepare a panchnama will ordinarily be treated as sufficient to constitute taking of possession.
(iii) If crop is standing on the acquired land or building/structure exists, mere going on the spot by the authority concerned will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the authority concerned will have to give notice to the Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 28-01-2025 12:03:14 PM 14 occupier of the building/structure or the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchnama. Of course, refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken.
(iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the present of independent witnesses and getting their signatures on such document.
(v) If beneficiary of the acquisition is an agency/'instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3-A) and substantial portion of the acquired land has been utilised in furtherance of the particular public purpose, then the court may reasonably presume that possession of the acquired land has been taken."
17. The same view was reiterated in State of Tamil Nadu Vs. Mahalakshmi Ammal (AIR 1996 SC 866) and Tamil Nadu Housing Board Vs. A. Vishwan (AIR 1996 SC 3377).
18. The Supreme Court, in the case of Hari Ram (Supra) and Bhaskar Jyoti Sarma (supra) has held that actual physical possession is required to be taken by the State Government under Sections 10(5) and 10(6) of the Act, otherwise the benefit of Repeal Act would have to be given to the petitioner.
19. In the background of the facts and circumstances of the case, upon considering the submissions of the learned counsel for the parties and upon perusal of the original records the principles laid down in the judgment of Banda Development Authority (Supra), this Court is satisfied that actual physical possession of the land in question was never taken by the Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 28-01-2025 12:03:14 PM 15 State Government. This Court finds that the memo of possession is nothing but a mere noting of the officials of the State Government prepared in their office. No credence can be given to this document. The possession memo even does not bear the signature of the petitioner by which the possession is alleged to have been taken under Section 10(5) of the Act nor there is anything to indicate that the possession was taken in the presence of any independent person.
20. In the light of the aforesaid, it is clear that the State Government could not establish that they have taken actual physical possession of the land from the petitioner.
21. The judgment relied upon by the State passed by the Division Bench of this Court in Ramnarayan (supra), is not applicable in the present case as in the said case, the State Government after preparing Panchnama in the presence of witnesses, had taken the possession of the land.
22. In view of the aforesaid, the writ petition is allowed and the writ of mandamus is issued holding that all the proceedings initiated against the petitioner under the provisions of Urban Land Ceiling and Regulation Act, 1976 are hereby quashed.
(MILIND RAMESH PHADKE) JUDGE ojha Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 28-01-2025 12:03:14 PM