Madhya Pradesh High Court
State Of M.P. vs Rajubai on 6 July, 2017
Bench: Hemant Gupta, Vijay Kumar Shukla
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HIGH COURT OF MADHYA PRADESH, JABALPUR
Writ Appeal No.558/2016
State of M.P. & Ors. ...............Appellant
Vs.
Rajubai and others ........... Respondents
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Writ Appeal No.867/2015
State of M.P. & Ors. ...............Appellant
Vs.
Thamman Chand Koshta ............. Respondent
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CORAM:-
Hon'ble Shri Justice Hemant Gupta, Chief Justice,
Hon'ble Shri Justice Vijay Kumar Shukla, Judge.
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Whether approved for reporting ? Yes/No
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Shri Sanjay Dwivedi, Advocate for the appellant.
Shri Sudhir Rawat, Advocate, for the respondents.
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J U D G M E N T (ORAL)
(6.7.2017) The above mentioned writ appeals are identical in nature as common question of law and facts are involved therein, thus they are disposed of by a common order. But the facility of reference, the facts are taken from WA 558 of 2017.
02. The challenge in the present appeal is an order passed by the Learned Single Bench on 29.07.2006, whereby the writ petition was
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allowed and the proceedings of taking paper possession was quashed. Resultantly, in view of the Urban Land (Ceiling & Regulation) Repeal Act, 1999 ( for short "the Repeal Act"), the proceedings for declaring the urban land as surplus came to be abated.
03. The brief facts out of which the present appeal arises is that one Ramkishan was owner of the land measuring 16.179 Hectares bearing Survay No. 12 village Lalpur, Tehsil and District Ujjain. The said land was leased to the present writ petitioners in the year 1981. The mutation of which was sanctioned by the Additional Tehsildar, Ujjain on 29th October, 1987.
04. Ramkishan, the original owner submitted return under Section 6 of Urban Land (Ceiling & Regulation) Act, 1976 (for short "the Act") on 23rd May, 1977. Thereafter, proceedings were taken under the Act in which Ramkishan did not participate. Ultimately, a notification under Section 10(3) of the Act was published in the Gazette on 10.11.1993. Thereafter, an order was issued on 21st July, 1994 to take over the possession but the paper possession was taken only on 16.12.1999 vide Panchnama Annexure R-3. In the meantime, the Repeal Act was notified on 22nd March, 1999. The Repeal Act repealed the Act in respect of State of Haryana and Punjab and in all Union Territory with effect from 11th January, 1999 and in other States from the date; the State passes the resolution to adopt the said Repealing Act under Clause 2 of Article 252. In terms of Sub-section 3 of Section 1 of the Repeal Act, the 3 State of M.P. passed the resolution on 17.02.2000 and thus the Act came to be repealed in the State of M.P. from the said date.
05. The learned Single Bench inter-alia allowed the writ petition on the ground that the possession was alleged to have been taken on 16.05.1999 after the Repealing Act was published by the Central Government and when the same was expected to be notified by the State Government. It is further found that from 27th January, 1994 till 10th July, 1999 when Repeal Act came into force, the possession was taken. The learned Single Bench retuned a finding that the perusal of Annexure R-3, shows that it was an ex-parte proceedings for taking possession and it only bears the signature of Tehsildar (Nazul). It does not bears the signature of any impartial person. Still further, the writ petitioner was found in occupation of land which fact is noticed in the panchnama Annexure R-3, therefore, in the absence of any notice issued to the writ petitioners, the actual occupants, in terms of notice under Section 10(5) of the Act, no proceedings would have been initiated under the Act in respect of the land in question.
06. Before this Court, learned Counsel for the appellant raised an argument that in terms of Annexure-R4, the claim of the writ petitioner that the possession of the land in question be not taken from her was not accepted for the reason that such claim is in violation of Section 5(3) of the Act. The said order was passed on 15 th February, 1999. Such order has not been disputed by the writ petitioner in any
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proceedings Therefore, the writ petitioner has no locus standi to claim any right over the land in question to challenge the vesting of the land in the said terms of Section 10(3) of the Act.
07. On the other hand, learned counsel for the respondent argued that the action of the State to take even paper possession on 16.12.1999 is colourable exercise of the power when the Repeal Act was enacted and notified on 22nd March, 1999. Though the State has taken some time to adopt the Repeal Act, but the fact remains that the principle Act itself was repealed in March 1999. Any action taken by the State in view of the imminent repeal of the Act cannot be bona-fide action but to deprive the land owner of his property in clandestine manner. Still further the paper possession of the agricultural land is said to taken without serving any notice as required by Section 10(5) of the Act. It is so apparent from the proceedings to take over possession vide Annexure R-3. The possession of such a land could not have been taken in the manner adopted by the Tehsildar.
08. Before we examine the respective contention of the parties, the relevant provisions of the Statute need to be reproduced:-
10. Acquisition of vacant land in excess of ceiling limit.--(1) As soon as may be after the service of the statement under Section 9 on the person concerned, the competent authority shall cause a notification giving the particulars of the vacant land held by such person in excess of the ceiling limit and stating that--
(i) such vacant land is to be acquired by the concerned State Government; and 5
(ii) the claims of all persons interested in such vacant land may be made by them personally or by their agents giving particulars of the nature of their interests in such land, to be published for the information of the general public in the Official Gazette of the State concerned and in such other manner as may be prescribed.
(2) After considering the claims of the persons interested in the vacant land, made to the competent authority in pursuance of the notification published under sub-section (1), the competent authority shall determine the nature and extent of such claims and pass such orders as it deems fit.
(3) At any time after the publication of the notification under sub-section (1), the competent authority may, by notification published in the Official Gazette of the State concerned, declare that the excess vacant land referred to in the notification published under sub-section (1) shall, with effect from such date as may be specified in the declaration, be deemed to have been acquired by the State Government and upon the publication of such declaration, such land shall be deemed to have vested absolutely in the State Government free from all encumbrances with effect from the date so specified.
(4) During the period commencing on the date of publication of the notification under sub-section (1) and ending with the date specified in the declaration made under sub-section (3),--
(i) no person shall transfer by way of sale, mortgage, gift, lease or otherwise any excess vacant land (including any part thereof) specified in the notification aforesaid and any such transfer made in contravention of this provision shall be deemed to be null and void; and
(ii) no person shall alter or cause to be altered the use of such excess vacant land.
(5) Where any vacant land is vested in the State Government under sub-section (3), the competent authority may, by notice in writing, order any person who may be in possession of it to surrender or deliver possession thereof to the State Government or to any person duly authorised by the State Government in this behalf within thirty days of the service of the notice.
(6) If any person refuses or fails to comply with an order made under sub-section (5), the competent authority may take possession of the vacant land or cause it to be given to the concerned State Government or to any person duly authorised
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by such State Government in this behalf and may for that purpose use such force as may be necessary.
Explanation.--In this section, in sub-section (1) of Section 11 and in Sections 14 and 23, "State Government", in relation to--
(a) any vacant land owned by the Central Government, means the Central Government;
(b) any vacant land owned by any State Government and situated in a Union territory or within the local limits of a cantonment declared as such under Section 3 of the Cantonments Act, 1924 (2 of 1924) means that State Government.
09. In terms of Section 10 (1) of the Act, it was incumbent upon the competent authority to give notice to all person interested in such vacant land either personally or through their agent by giving particulars of their interest as is required to be given under Section 10 of the Act. Since the petitioner was in possession and such possession having been recognized by virtue of an order passed by the Tehsildar on 29 th October, 1987, thus the writ petitioner was an interested party and hence the notice was required to be issued before publication of notification under Section 10(3) of the Act.
10. Still further, in terms of sub Section (5) of Section 10 of the Act, the competent authority is required to serve a notice in writing to deliver possession, who may be in possession of the land which vested in the State Government. The writ petitioner was in possession of the land which is evident from the mutation sanctioned on 29.10.1987. It was only on 15.2.1999 (Annexure R-4), the request of the petitioners not to take possession was declined for the reason that the land vest with the 7 State under the Act. Such order, in fact, approves the possession of the petitioners over the land in question. Still further the Panchnama (Annexure R-3) again shows that the land was in possession of the writ petitioners, therefore, in the absence of notice as required under sub Section (5) of Section 10 of the Act, the land would be covered by Section 3 of the repealing Act as it will not vest with the State.
11. The Hon'ble Supreme Court in a judgment reported as (2013) 4 SCC 280 State of U.P. Vs Hari Ram in the context of the Act, held that the de-facto possession is required to be taken by the State and not de jure. The Court held that the Act deals with deemed vesting or deemed acquisition, but the keeping in view the provisions of the Act, unless the possession is taken in terms of Section 10 (5) of the Act, the land cannot be said to be vested with the State Government. The proceedings of taking possession Annexure-R3 shows that it is only a paper possession without taking actual possession from the land owner and without giving notice to person who is in possession. The person in possession is required to be given notice under sub-sections (5) and (6) of Section 10. The relevant extract from the Supreme Court judgment read as under :-
"30. Vacant land, it may be noted, is not actually acquired but deemed to have been acquired, in that deeming things to be what they are not. Acquisition, therefore, does not take possession unless there is an indication to the contrary. It is trite law that in construing a deeming provision, it is necessary to bear in mind the
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legislative purpose. The purpose of the Act is to impose ceiling on vacant land, for the acquisition of land in excess of the ceiling limit thereby to regulate construction on such lands, to prevent concentration of urban lands in the hands of a few persons, so as to bring about equitable distribution. For achieving that object, various procedures have to be followed for acquisition and vesting. When we look at those words in the above setting and the provisions to follow such as sub-sections (5) and (6) of Section 10, the words "acquired" and "vested" have different meaning and content. Under Section 10(3), what is vested is de jure possession not de facto, for more reasons than one because we are testing the expression on a statutory hypothesis and such an hypothesis can be carried only to the extent necessary to achieve the legislative intent.
31. The 'vesting' in sub-section (3) of Section 10, in our view, means vesting of title absolutely and not possession though nothing stands in the way of a person voluntarily surrendering or delivering possession. The court in Maharaj Singh v. State of UP and Others (1977) 1 SCC 155, while interpreting Section 117(1) of U.P. Zamindari Abolition and Land Reform Act, 1950 held that 'vesting' is a word of slippery import and has many meaning and the context controls the text and the purpose and scheme project the particular semantic shade or nuance of meaning. The court in Rajendra Kumar v. Kalyan (dead) by Lrs. (2000) 8 SCC 99 held as follows:
"We do find some contentious substance in the contextual facts, since vesting shall have to be a "vesting" certain. "To vest, generally means to give a property in." (Per Brett, L.J. Coverdale v. Charlton. Stroud's Judicial Dictionary, 5th edn. Vol. VI.) Vesting in favour of the unborn person and in the contextual facts on the basis of a subsequent adoption after about 50 years without any authorization cannot however but be termed to be a contingent event. To "vest", cannot be termed to be an executor devise. Be it noted however, that 9 "vested" does not necessarily and always mean "vest in possession" but includes "vest in interest" as well.
33. Before we examine sub-section (5) and sub-section (6) of Section 10, let us examine the meaning of sub-section (4) of Section 10 of the Act, which says that during the period commencing on the date of publication under sub-section (1), ending with the day specified in the declaration made under sub- section (3), no person shall transfer by way of sale, mortgage, gift or otherwise, any excess vacant land, specified in the notification and any such transfer made in contravention of the Act shall be deemed to be null and void. Further, it also says that no person shall alter or cause to be altered the use of such excess vacant land. Therefore, from the date of publication of the notification under sub-section (1) and ending with the date specified in the declaration made in sub-section (3), there is no question of disturbing the possession of a person, the possession, therefore, continues to be with the holder of the land.
Peaceful dispossession
34. Sub-section (5) of Section 10, for the first time, speaks of "possession" which says that where any land is vested in the State Government under sub-section (3) of Section 10, the competent authority may, by notice in writing, order any person, who may be in possession of it to surrender or transfer possession to the State Government or to any other person, duly authorised by the State Government.
35. If de facto possession has already passed on to the State Government by the two deeming provisions under sub-section (3) of Section 10, there is no necessity of using the expression "where any land is vested" under sub-section (5) of Section 10. Surrendering or transfer of possession under sub-section (3) of Section 10 can be voluntary so that the person may get the compensation as provided under Section 11 of the Act early. Once there is no voluntary surrender or delivery of possession, necessarily the State Government has to issue notice in writing
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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 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"."11
12. Since the revenue record records the possession of the writ petitioners and also the proceedings to take over possession, therefore, the writ petitioner was entitled to a notice to deliver possession to the State in terms of Section 10(5) of the Act and on failure of the writ petitioners to hand over possession to use force in terms of Sub Section 6 of Section 10 of the Act. Since the Repeal Act contemplates that if possession has not been taken, the land will not vest with the State Government. Therefore, the land in question would not vest with the State Government.
13. In view of the above circumstances, we do not find any error in the order passed by the learned Single Bench so as to warrant any interference of this court in the present Intra-Court Appeal.
(HEMANT GUPTA) (VIJAY KUMAR SHUKLA)
CHIEF JUSTICE JUDGE
Amitabh/Anchal