Madhya Pradesh High Court
Maan Singh vs The State Of Madhya Pradesh on 9 March, 2022
Author: Vivek Rusia
Bench: Vivek Rusia
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IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 9th OF MARCH, 2022
WRIT PETITION No. 4614 of 2022
Between:-
MAAN SINGH S/O LATE BAPU SINGH ,
AGED ABOUT 63 YEARS, OCCUPATION:
AGRICULTURIST PANWASA, MAKSI ROAD
(MADHYA PRADESH)
.....PETITIONER
AND
THE STATE OF MADHYA PRADESH
1
PRINCIPAL SECRETARY VALLABH
.
BHAWAN, BHOPAL (MADHYA PRADESH)
2 COMPETENT AUTHORITY URBAN LAND
. CEILING UJJAIN (MADHYA PRADESH)
DISTRICT TRADE AND INDUSTRIES
3 CENTRE THROUGH THE GENERAL
. MANAGER INDUSTRIAL AREA AGRASEN
NAGAR (MADHYA PRADESH)
.....RESPONDENTS
ORDER
Shri Aniket Naik, learned counsel for the applicant. Shri Nitin Singh Bhati, learned Government Advocate for the respondent/State.
****** Heard on the question of admission and interim relief. The petitioner has filed the present writ petition under Article 226 of the Constitution of India seeking the following relief:-
7. It is, therefore, most humbly prayed that this Hon'ble Court may be pleased to issue a writ, order or direction of appropriate nature against the respondents for;-
(1) Holding the ceiling proceedings in respect of survey No.318/1 and 319/1 admeasuring 1.673 at Gram Nimanwasa, Tehsil and
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District Ujjain to be abated under Section 4 of Repeal Act, 1999; (2) Quashing notification under section 10(3) and 10(5) of Ceiling Act, 1997 (Annexure P/7 and Annexure P/8) (3) Quashing RFP (Annexure P/14) to the extent of land Khasra No.318/1 and 319/1.
(4) Correcting the revenue records;
(5) Any other relief deemed fit by this Hon'ble Court; (6) Costs be awarded to the petitioner.
2. Lands involved in this case i.e. survey No.318/1 admeasuring 1.359 hectares and survey No.319/1 admeasuring 0.314 hectares thus total 1.673 hectares were owned by two real brothers Badri Singh and Chandra Singh. According to the petitioner under the family arrangement, these lands were in possession of his mother Bhawar Bai and petitioner himself since 1977-1978 which is evident from the entries of Khasra for the year 1977-78. Later on, the petitioner and his mother instituted Civil Suit No.119-A/1979 against Badri Singh and Chandra Singh which was disposed of vide judgment and decree dated 03.04.1984 by way of compromise as the Badri Singh and Chandra Singh have admitted the ownership of the petitioner and his mother. Thereafter the name of the petitioner and his mother came to be mutated in the revenue record for survey No.318/1 and 319/1 in the year 1987-88.
3. On account of the enforcement of the Urban Land (Ceiling and Regulation) Act, 1976 (For short, the `ULC Act'), Badri Singh and Chandra Singh had filed a statement under Section 6 in the year 1979 showing the aforesaid lands as vacant land. Upon and pursuant of the statement, a notification under Section 10(1) of the Ceiling Act, 1976 dated 30.07.1986 was published by respondent No.2 by recording the name of Badri Singh and Chandra Singh. Thereafter, a notification under Section 10(3) of the ULC Act was published on 14.03.1990 contending that the land in question was deemed to have vested in the State Government on 31.03.1990. According to the petitioner the aforesaid notifications under sections 10(1) and 10(3) of the ULC Act were published in contravention of revenue records which reflects the
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name of the petitioner and his mother as owner. No opportunity of hearing was given to them in ceiling proceedings by the competent authority. In consequences of aforesaid notifications issued under section 10(3) of the ULC Act, respondent No.2 issued a notice for taking possession under Section 10(5) of ULC Act on 18.08.1993 to Badri Singh and Chandra Singh. Since Badri Singh and Chandra Singh were not the true owners, therefore, any proceeding initiated pursuant to the notice dated 18.08.1993 are vitiated. The Tehsildar had taken ex-parte possession on 14.10.1993 upon drawing a panchnama and reported to the competent authority. The petitioner and his mother were Bhumiswami and in possession of Survey Nos.318/1 and 319/1 were not noticed at any stage before 31.03.2000 while respondent No.2 has ordered for correction of entry in revenue records due to vesting of land under the ceiling proceedings. According to the petitioner compensation assessment proceedings culminated into an order dated 25.05.2000 wherein respondent No.2 has assessed the compensation amount but has not paid the compensation to the petitioner, even the Badri Singh and Chandra Singh did not accept the possession.
4. Shri Aniket Naik learned counsel submits that now the petitioner came to know these land the survey No.318/1 and 319/1in question have been included in Request and Proposal (RFP) from SPV for developing as identified undeveloped land for cluster development in Ujjain, Madhya Pradesh on 02.02.2022. The aforesaid notice gave a cause of action to the petitioner to approach before this Court by way of petition.
5. Learned counsel for the petitioner submits that by virtue of compromise decree dated 03.04.1994 the petitioner and his mother had become the owner of the land in question. Their names were mutated in the revenue record, therefore, in the ceiling proceedings as well as possession proceedings, notice ought to have been issued to them. Since no physical possession has been taken from the petitioner and his mother, the paper possession has no meaning and by virtue of Section 4 of Repeat Act, 1999 ceiling proceedings inevitable stand
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vitiated. Hence, the respondents have no right to disturb the possession of the present petitioner. In support of his contention, learned counsel has placed reliance over the judgment in the case of State of Uttar Pradesh Vs. Hari Ram reported in (2013) 4 SCC 280 in which the Apex Court has held that 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 a hypothesis can be carried only to the extent necessary to achieve the legislative intent. The aforesaid judgment has been relied on by this Court in the case of State of M.P. and others Vs. Rajubai and others reported in 2018 (1) RN 152 in which this Court has protected the possession of lessee as no physical possession was taken from him in terms of section 10(5) and 10(6) of the Ceiling Act by holding that Repeal ULC Act contemplates that if possession has not been taken, the land will not vest with the State Government and dismissed the writ appeal filed by the State.
I have heard the learned counsel at length and perused the record.
6. As per the own admission of the petitioner that land survey No.318/1 and 319/1 was owned by Badri Singh and Chandra Singh but by way of family arrangement, the petitioner and his mother were in possession since 1977-78. The petitioner and his mother filed Civil Suit against Badri Singh and Chandra Singh and the suit ended in a compromise as which Badri Singh and Chandra Singh had admitted ownership of the petitioner and his mother. The aforesaid suit was only a collusive decree filed only to save stamp duty or land in question from rigour of the ULC Act. Copy of the entire judgment has not been filed in this writ petition to show under what terms and condition the compromise arrived.
7. Even otherwise, in the statements( Vivrani) submitted by Badri Singh and Chandra Singh before the competent authority under the ULC Act, no disclosure has been made about the aforesaid
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compromise decree. They have not disclosed that by virtue of decree, the present petitioner and his mother had become the owners of the land. Sub Section 3 of Section 10 of ULC Act specifically provides that after issuance of notice under Section 10 (3) no one has right to sale, alienate, transfer or otherwise the land came into the ceiling, therefore, under the head of 'otherwise', even the transfer by way of judgment and decree passed on concern is also prohibited. The procedure to be followed thereafter for the acquisition of the vacant land in excess of the ceiling limits is provided under Section 10 and the same may be extracted hereunder for ready reference:
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 staling 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 maybe prescribed.
(2) After considering the claims of the persons interested in the vacant land, made to the competent authority in pursuance of the notification published under sub- section (1), the competent authority shall determine the nature and extent of such claims and pass such orders as it deems fit. (3) At any time after the publication of the notification under sub-section (1) the competent authority may, by notification published in the Official Gazette of the State concerned, declare that the excess vacant land referred to in the notification published under sub-section (1) shall, with effect from such date as may be specified in the declaration, be deemed to have been acquired by the State Government and upon the publication of 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)
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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 section 14 and section 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 S.3 of the Cantonments Act, 1924 , means that State Government.
8. A plain reading of the above provision shows that the competent authority under sub-section (1) shall cause a notification giving the particulars of vacant land in excess of the ceiling limit and inviting claims from the persons interested in such vacant land. As per sub- section (2) the competent authority shall pass an appropriate order after considering the claims of persons interested. Sub-section (3) provides for publication of a notification in the Official Gazette of a State declaring that the excess vacant land referred to in the notification published under sub-section (1) shall be deemed to have been acquired by the State Government with effect from the date specified therein and upon publication of such declaration, the land shall be deemed to have vested absolutely in the State Government free from all encumbrances with effect from the date so specified. Sub- section (5) further provides for the issuance of a notice in writing by
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the competent authority directing any person who may be in possession of the vacant land which is vested in the State Government under sub-section (3) to surrender or deliver possession thereof to the State Government within 30 days of service of the said notice.
9. In the event of the person on whom such notice is served refuses or fails to comply with the order made under sub-section (5), the competent authority is empowered under sub-section (6) to take possession of the vacant land. It is clear from the scheme of Section 10 of the ULC Act that after the publication of the notification under Section 1 (3) declaring that the excess land shall be deemed to have vested absolutely in the State Government with effect from the date specified therein, the competent authority will issue a notice under Section 10 (5) calling upon the person in possession of such excess vacant land to surrender or deliver possession thereof to the State Government within 30 days of service of the notice and in the event of the failure of such person to surrender, the possession of the excess vacant land may be taken over by the competent authority. Sub Section 3 of Section 10 of ULC Act specifically provides that after issuance of notice under Section 10 (3) no one has right to sale, alienate, transfer or otherwise the land came into the ceiling, therefore, under the head of 'otherwise', even the transfer by way of judgment and decree passed on concern is also prohibited.
10. So far as the contention of Shri Naik that the possession has not been taken from the petitioner as per law , even if his title was under
the cloud or he has no absolutely title over the property. Since the petitioner and his mother are in actual possession of land then the paper possession has no meaning in view of the law laid down in the case of State of Uttar Pradesh Vs. Hari Ram and State of M.P. and others Vs. Rajubai (supra).
The above contention deserves no consideration because the above case i.e. State of M.P. and others Vs. Rajubai (supra) came into consideration again before the Apex Court in the case of State of
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Assam vs Bhaskar Jyoti Sharma, 2015 (5) SCC 321 para 16 and 17 reproduced below:
16. The issue can be viewed from another angle also. Assuming that a person in possession could make a grievance, no matter without much gain in the ultimate analysis, the question is whether such grievance could be made long after the alleged violation of Section 10(5). If actual physical possession was taken over from the erstwhile landowner on 7-12-1991 as is alleged in the present case any grievance based on Section 10(5) ought to have been made within a reasonable time of such dispossession. If the owner did not do so, forcible taking over of possession would acquire legitimacy by sheer lapse of time. In any such situation the owner or the person in possession must be deemed to have waived his right under Section 10(5) of the Act. Any other view would, in our opinion, give a licence to a litigant to make a grievance not because he has suffered any real prejudice that needs to be redressed but only because the fortuitous circumstance of a Repeal Act tempted him to raise the issue regarding his dispossession being in violation of the prescribed procedure.
17. Reliance was placed by the respondents upon the decision of this Court in Hari Ram case [State of U.P. v. Hari Ram, (2013) 4 SCC 280 : (2013) 2 SCC (Civ) 583] . That decision does not, in our view, lend much assistance to the respondents. We say so, because this Court was in Hari Ram case [State of U.P. v. Hari Ram, (2013) 4 SCC 280 : (2013) 2 SCC (Civ) 583] considering whether the word "may" appearing in Section 10(5) gave to the competent authority the discretion to issue or not to issue a notice before taking physical possession of the land in question under Section 10(6). The question whether breach of Section 10(5) and possible dispossession without notice would vitiate the act of dispossession itself or render it non est in the eye of the law did not fall for consideration in that case. In our opinion, what Section 10(5) prescribes is an ordinary and logical course of action that ought to be followed before the authorities decided to use force to dispossess the occupant under Section 10(6). In the case at hand if the appellant's version regarding dispossession of the erstwhile owner in December 1991 is correct, the fact that such dispossession was without a notice under Section 10(5) will be of no consequence and would not vitiate or obliterate the act of taking possession for the purposes of Section 3 of the Repeal Act.
That is because Bhabadeb Sarma, erstwhile owner, had not made any grievance based on breach of Section 10(5) at any stage during his lifetime implying thereby that he had waived his right to do so.
11. Again the case State of Uttar Pradesh Vs. Hari Ram (supra) came into consideration before the Apex Court in case of Indore Development Authority Vs. Manohar Lal 2020 (8) SCC 129 and the Apex Court has overruled the judgment passed in the case of State of Uttar Pradesh Vs. Hari Ram by holding that provisions of the Repeal Act could not be extended in such a case where possession has been
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taken without following the procedure, and the landowner cannot retain the land. Once possession has been taken over in the year 1991, any grievance as to non-compliance of Section 10(5) ought to have been made within a reasonable time of such dispossession. By sheer lapse of time, the possession would acquire legitimacy. Thus, the owner or the person in possession must be deemed to have waived his right under Section 10(5) of the Act. Para 344 be reproduced below:
344. In this context, it is noteworthy that the Urban Land (Ceiling and Regulation) Act, 1976, was repealed in the year 1999;
thereafter, claims were raised. After repeal, it was claimed that actual physical possession has not been taken by the State Government as such repeal has the effect of effacing the proceedings of taking possession, which it was alleged, was not in accordance with the law. In State of Assam v. Bhaskar Jyoti Sarma [State of Assam v. Bhaskar Jyoti Sarma, (2015) 5 SCC 321] , submission was raised by the State of Assam that physical possession has been taken over by the competent authority and it was submitted on behalf of landowner that procedure prescribed under Section 10(5) of the Urban Land (Ceiling and Regulation) Act, 1976, was not followed. It was before taking possession under Section 10(6) of the Urban Land (Ceiling and Regulation) Act, 1976, the notification under Section 10(5) was necessary; thus, no possession can be said to have been taken within the meaning of Section 3 of the Repeal Act. The question this Court had to consider was whether actual physical possession was taken over in that case by the competent authority. The State of Assam submitted that though possession was taken over in the year 1991, may be unilaterally and without notice to the landowner. It was urged that mere non-compliance with Section 10(5) would be insufficient to attract the provisions of Section 3 of the Repeal Act. This Court repelled the submission of the landowner and held as under : (SCC pp. 329-30, paras 15-17) "15. The High Court has held [Bhaskarjyoti Sarma v. State of Assam, 2010 SCC OnLine Gau 377] that the alleged dispossession was not preceded by any notice under Section 10(5) of the Act. Assuming that to be the case all that it would mean is that on 7-12-1991 when the erstwhile owner was dispossessed from the land in question, he could have made a grievance based on Section 10(5) and even sought restoration of possession to him no matter he would upon such restoration once again be liable to be evicted under Sections 10(5) and 10(6) of the Act upon his failure to deliver or surrender such possession. In reality therefore unless there was something that was inherently wrong so as to affect the very process of taking over such as the identity of the land or the boundaries thereof or any other circumstance of a similar nature going to the root of the matter hence requiring an adjudication, a person who had lost his land by reason of the same being declared surplus under Section 10(3) would not consider it worthwhile to agitate the violation of Section 10(5) for he can well understand that even when the Court may uphold his contention that the procedure ought to be followed as prescribed, it may still be not enough for him to retain the land for the
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authorities could the very next day dispossess him from the same by simply serving a notice under Section 10(5). It would, in that view, be an academic exercise for any owner or person in possession to find fault with his dispossession on the ground that no notice under Section 10(5) had been served upon him.
17. Reliance was placed by the respondents upon the decision of this Court in Hari Ram case [State of U.P. v. Hari Ram, (2013) 4 SCC 280 : (2013) 2 SCC (Civ) 583] . That decision does not, in our view, lend much assistance to the respondents. We say so, because this Court was in Hari Ram case [State of U.P. v. Hari Ram, (2013) 4 SCC 280 : (2013) 2 SCC (Civ) 583] considering whether the word "may" appearing in Section 10(5) gave to the competent authority the discretion to issue or not to issue a notice before taking physical possession of the land in question under Section 10(6). The question whether breach of Section 10(5) and possible dispossession without notice would vitiate the act of dispossession itself or render it non est in the eye of the law did not fall for consideration in that case. In our opinion, what Section 10(5) prescribes is an ordinary and logical course of action that ought to be followed before the authorities decided to use force to dispossess the occupant under Section 10(6). In the case at hand if the appellant's version regarding dispossession of the erstwhile owner in December 1991 is correct, the fact that such dispossession was without a notice under Section 10(5) will be of no consequence and would not vitiate or obliterate the act of taking possession for the purposes of Section 3 of the Repeal Act.
That is because Bhabadeb Sarma, erstwhile owner, had not made any grievance based on breach of Section 10(5) at any stage during his lifetime implying thereby that he had waived his right to do so.''
12. In view of the aforesaid law laid down by the Apex Court in the case of Indore Development Authority (Supra), the judgment passed in the case of State of Uttar Pradesh Vs. Hari Ram and State of M.P. and others Vs. Rajubai (supra), will not help the petitioner. Neither the petitioner nor actual owner Badri Singh and Chandra Singh had ever raised any objection challenging the proceedings under Section 10(6) held on 14.03.1993. Since 1993, the petitioner, as well as owners, remained silent, therefore, for almost three decades, the petitioner cannot be permitted to assail the validity of Panchanama etc. The petition is absolutely misconceived devoid of substance, hence, liable to be dismissed.
The petition is dismissed in limini.
( VIVEK RUSIA ) JUDGE praveen/-
Digitally signed by PRAVEEN NAYAK Date: 2022.03.15 18:07:12 +05'30'