Madhya Pradesh High Court
Uday Pratap Singh vs The State Of M.P. & Ors. on 10 April, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 W.P. No.4/2000
IN THE HIGH COURT OF MADHYA PRADESH
A T J AB AL PU R
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 10th OF APRIL, 2024
WRIT PETITION No. 4 of 2000
BETWEEN:-
UDAY PRATAP SINGH S/O SHRI C.P. SINGH AGED
ABOUT 47 YEARS R/O UDAY NIVAS ADHARTAL,
JABALPUR, TAHSIL AND DISTRICT JABALPUR
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI RAVISH AGRAWAL - SENIOR ADVOCATE WITH SHRI JASPREET
GULATI - ADVOCATE )
AND
1. STATE OF M.P. THROUGH SECRETARY,
REVENUE DEPARTMENT, VALLABH
BHAWAN BHOPAL, DISTRICT BHOPAL
(MADHYA PRADESH)
2. COMMISSIONER, JABALPUR (MADHYA
PRADESH)
3. COMPETENT AUTHORITY, URBAN LAND
CEILING JABALPUR, COLLECTORATE,
JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ROHIT JAIN - GOVERNMENT ADVOCATE)
.........................................................................................................
"Reserved on : 03.04.2024"
"Pronounced on : 10.04.2024"
This petition having been heard and reserved for judgment, coming
on for pronouncement this day, the court passed the following:
ORDER
This Petition under Article 226 of Constitution of India has been filed against order dated 18.11.1999 passed by State of Madhya Pradesh 2 W.P. No.4/2000 (Revenue Department) in case No.1-53/98/7-9 by which order passed by the Additional Commissioner, Jabalpur Division Jabalpur on 02.03.1994 in case No.192/A-90/B-9/92-93 has been set aside as well as petitioner has also claimed that ceiling proceedings have stood abated in the light of Section 4 of the Urban Land (Ceiling And Regulation) Repeal Act, 1999 on the ground that possession was not taken.
2. Since the controversy involved in the present case revolves in a very narrow compass, therefore, for the sake of convenience, it would be sufficient to mention that by this petition, the petitioner has challenged the ceiling proceedings on two grounds :
(1) The order dated 18.11.1999 passed by the State of Madhya Pradesh (Revenue Department) in case No.1-53/98/7-9 is without jurisdiction.
(2) The paper possession cannot be equated with actual possession, thus, the proceedings under the provisions of Urban Land (Ceiling and Regulation) Act, 1976 (in short 'the Act, 1976') stood abated in the light of section 4 of Urban Land (Ceiling and Regulation) Repeal Act, 1999 (in short 'the Act 1999').
3. It is the case of the petitioner that once the appeal filed by the petitioner was allowed, then no suomotu revision would lie to the State Govt. and thus, the reversal of order passed by the Appellate Authority under Section 33 of Act, 1976, by the State Govt. in exercise of power under Section 34 of Act, 1976 is without jurisdiction and thus the State Govt. was Corum non Judice. To buttress his contentions, the Counsel for the petitioner has relied upon the Judgments passed by Supreme Court in the case of Pune Municipal Corporation Vs. State of Maharashtra and others reported in (2007) 5 SCC 211 and 3 W.P. No.4/2000 Moradabad Development Authority Vs. Saurabh Jain and others reported in (2007) 8 SCC 305.
4. Per contra, it is the case of the State that suomotu revision against the order passed by Appellate Authority under Section 33 of Act, 1976 was maintainable. The bar as contained in Section 34 of Act, 1976 would apply to that party only who had availed the remedy as provided under Section 33 of Act, 1976. In other words, it is the contention of the Counsel for the State that a person who has availed the remedy of Appeal under Section 33 of Act, 1976, cannot approach the State Govt. under Section 34 of Act, 1976. To buttress his contentions the Counsel for the State relied upon the judgment passed by Full Bench of this Court in the case of Ravi Shankar Dubey and others Vs. State of M.P. and others reported in 1973 MPLJ 43. It is further submitted that in order to give purposive meaning to the provision of law, some times it becomes necessary to add or subtract word(s) and therefore, the second limb of Section 34 of Act, 1976 has to be read as "no appeal has been preferred by aggrieved party". It is further submitted that if the competent authority has declared certain lands as surplus land and if such order is set aside by the Appellate Authority on an appeal filed by the aggrieved land owner and if it is held that the State Govt. cannot exercise the suomotu power of revision, then it would be create a situation where aggrieved party would not get any opportunity to challenge the order of Appellate Authority. Thus, it is submitted that any interpretation which adversely affects the statutory power of revision should be avoided.
5. In reply, it is submitted by Counsel for the Petitioner that the word "prefer" doesn't mean mere filing of appeal, but it means the intention to pursue the same. To buttress his contentions, the Counsel for the 4 W.P. No.4/2000 Petitioner has relied upon the judgment passed by Supreme Court in the case of Manik Lal Majumdar Vs. Gouranga Chandra Dey reported in (2004) 12 SCC 448 and CIT Vs. B.N. Bhattacharya reported in AIR 1979 SC 1725 = (1979) 4 SCC 121.
6. Considered the submissions made by Counsel for the parties. Whether the order dated 18-11-1999 passed by State Govt. in exercise of suomotu power of Revision was without jurisdiction.
7. Section 33 and 34 of Act, 1976, read as under :
33. Appeal.--(1) Any person aggrieved by an order made by the competent authority under this Act, not being an order under Section 11 or an order under sub-section (1) of Section 30, may, within thirty days of the date on which the order is communicated to him, prefer an appeal to such authority as may be prescribed (hereafter in this section referred to as the appellate authority):
Provided that appellate authority may entertain the appeal after the expiry of the said period of thirty days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
(2) On receipt of an appeal under sub-section (1), the appellate authority shall, after giving the appellant an opportunity of being heard, pass such orders thereon as it deems fit as expeditiously as possible.
(3) Every order passed by the appellate authority under this section shall be final.
34. Revision by State Government.--The State Government may, on its own motion, call for and examine the records of any order passed or proceeding taken under the provisions of this Act and against which no appeal has been preferred under Section 12 or Section 30 or Section 33 for the purpose of satisfying itself as to the legality or propriety of such order or as to the regularity of such procedure and pass such order with respect thereto as it may think fit:
Provided that no such order shall be made except after giving the person affected a reasonable opportunity of being heard in the matter.5 W.P. No.4/2000
8. The undisputed facts are that against an order passed under Section 9 of Act, 1976, the Petitioner had preferred an appeal, which was allowed by order 2-3-1994 and the entire proceedings under Act 1976 were quashed. Against this order, the State Govt. exercised its suomotu power under Section 34 of Act, 1976 and set aside the order dated 2-3-1994 passed by Appellate Authority and the proceedings under Act, 1976 were affirmed. It is not out of place to mention here that the suomotu power was exercised on an application filed by the competent authority.
9. Thus, the pivotal question for consideration is that when the order of competent authority was set aside by the Appellate Authority on an appeal filed by landowners under Section 33 of Act, 1976, then whether the State Govt. can revise the order passed by Appellate Authority in exercise of its power under Section 34 of Act, 1976 or not?
10. In the case of Pune Municipal Corporation (Supra) the question was that after having preferred an appeal under Section 33 of Act, 1976, whether the land owners/Appellants can prefer a revision under Section 34 of Act, 1976 or not?
11. Whereas in the present case, the factual aspect is different. In the present case, the landowners were aggrieved by the order passed by the competent authority under Section 9 of Act, 1976, therefore, they preferred an appeal under Section 33 of Act, 1976 and appeal was allowed. Thereafter, the State Govt. suomotu exercised its power to check the veracity of the order passed by the Appellate Authority.
Since, the landowners had already succeeded in their appeal therefore, there was no question of filing revision by them.
12. Section 34 of Act, 1976 speaks about two clauses i.e., 6 W.P. No.4/2000
(i) The State Government may, on its own motion, call for and examine the records of any order passed ; or
(ii) proceeding taken under the provisions of this Act and against which no appeal has been preferred under Section 12 or Section 30 or Section 33 for the purpose of satisfying itself as to the legality or propriety of such order or as to the regularity of such procedure and pass such order with respect thereto as it may think fit:
Provided that no such order shall be made except after giving the person affected a reasonable opportunity of being heard in the matter.
13. The use of word "or" cannot be read as "and" after first clause and thus, it is clear that both the clauses are independent to each other and are not interdependent on each other. The word "or" is disjunctive and word "and" is conjunctive. Only if literal reading of the word gives an unintelligible or absurd result, then "and" can be read as "or" and vice-
versa. Thus, they can be read vice-versa only to give effect to the manifest intentions of the legislature, as disclosed from the context. Therefore, the question for consideration is that what would be the effect of "or" used by Legislature between two parts of Section 34 of Act, 1976?
14. It is well established principle of law that every word used in the Statute has to be given purposive meaning as the legislature has not used any word without any meaning. The use of word "or" clearly indicates that every order passed in the proceedings under the Act, 1976 can be revised by the State Govt. in exercise of its power under Section 34 of Act, 1976 and the second part of the Section carves out an exception to 7 W.P. No.4/2000 the first part, thereby providing that if an order passed by the competent authority has been tested by the Appellate Authority, then the provision of Revision would not apply.
15. Now the only question for consideration is that whether this bar is applicable only to that person who had preferred an appeal against an order passed by competent authority or even to that person, who was not aggrieved by the order of the competent authority, but may be aggrieved by the order of the Appellate Authority.
16. It is well established principle of law that any interpretation which may lead to absurdity should be avoided. The Supreme Court in the case of Corporation Bank v. Saraswati Abharansala, reported in (2009) 1 SCC 540 has held as under :
24. The statute furthermore, it is trite, should be read in a manner so as to do justice to the parties. If it is to be held, without there being any statutory provision that those who have deposited the amount in time would be put to a disadvantageous position and those who were defaulters would be better placed, the same would give rise to an absurdity. Construction of the statute which leads to confusion must be avoided.
The Supreme Court in the case of H.S. Vankani v. State of Gujarat, reported in (2010) 4 SCC 301 has held as under :
43. It is a well-known rule of construction that the provisions of a statute must be construed so as to give them a sensible meaning. The legislature expects the court to observe the maxim ut res magisvaleat quam pereat (it is better for a thing to have effect than to be made void). The principle also means that if the obvious intention of the statute gives rise to obstacles in implementation, the court must do its best to find ways of overcoming those obstacles, so as to avoid absurd results. It is a well-settled principle of interpretation of statutes that a construction should not be put on a statutory provision which would lead to manifest absurdity, futility, 8 W.P. No.4/2000 palpable injustice and absurd inconvenience or anomaly.
44. In this connection reference may be made to the judgment in R (Edison First Power Ltd.) v. Central Valuation Officer wherein Lord Millet said: (All ER pp. 116-17) "116. ... The courts will presume that Parliament did not intend a statute to have consequences which are objectionable or undesirable; or absurd; or unworkable or impracticable; or merely inconvenient; or anomalous or illogical; or futile or pointless.
117. But the strength of these presumptions depends on the degree to which a particular construction produces an unreasonable result. The more unreasonable a result, the less likely it is that Parliament intended it...."
45. Reference may also be made to the judgment in Andhra Bank v. B. Satyanarayana wherein this Court has held: (SCC p. 662, para 14) "14. A machinery provision, it is trite, must be construed in such a manner so as to make it workable having regard to the doctrine 'ut res magisvaleat quam pereat'."
46. In Tinsukhia Electric Supply Co. Ltd. v. State of Assam this Court held as follows: (SCC p. 754, para 118) "118. The courts strongly lean against any construction which tends to reduce a statute to futility. The provision of a statute must be so construed as to make it effective and operative, on the principle 'ut res magisvaleat quam pereat'. It is, no doubt, true that if a statute is absolutely vague and its language wholly intractable and absolutely meaningless, the statute could be declared void for vagueness. This is not in judicial review by testing the law for arbitrariness or unreasonableness under Article 14; but what a court of construction, dealing with the language of a statute, does in order to ascertain from, and accord to, the statute the meaning and purpose which the legislature intended for it."
47. Reference may also be made to the decisions in MadhavRaoJivajiRaoScindia v. Union of India, Union of India v. B.S. Agarwal and Paradise Printers v. UT of Chandigarh.
48. The above legal principles clearly indicate that the courts have to avoid a construction of an enactment that leads to an unworkable, inconsistent or impracticable results, since such 9 W.P. No.4/2000 a situation is unlikely to have been envisaged by the rule-
making authority. The rule-making authority also expects rule framed by it to be made workable and never visualises absurd results.
The Supreme Court in the case of American Home Products Corpn.v. Mac Laboratories (P) Ltd., reported in (1986) 1 SCC 465 has held as under:
66...........It is a well-known principle of interpretation of statutes that a construction should not be put upon a statutory provision which would lead to manifest absurdity or futility, palpable injustice, or absurd inconvenience or anomaly (see:
M. Pentiah v. MuddalaVeeramallappa). The Division Bench of the Calcutta High Court saw the absurdity, inconvenience and hardship resulting from the construction which was placed by it upon Section 48(2), as is shown by the passages from its judgment reproduced earlier...........
17. Thus, it is clear that if the obvious intention of the statute gives rise to obstacles in implementation, the court must do its best to find ways of overcoming those obstacles, so as to avoid absurd results. It is a well-settled principle of interpretation of statutes that a construction should not be put on a statutory provision which would lead to manifest absurdity, futility, palpable injustice and absurd inconvenience or anomaly.
18. As already pointed out, Section 34 of Act, 1976 deals with two eventualities i.e., the State Government may, on its own motion, call for and examine the records of any order passed; or may call for and examine any proceeding taken under the provisions of this Act and against which no appeal has been preferred under Section 12 or Section 30 or Section 33 of Act, 1976. Thus, it is clear that although the powers of the State Govt. to exercise its suomotu powers under Section 10 W.P. No.4/2000 34 of Act, 1976 are wide enough but it would not apply to the order passed by the Appellate Authority under Section 12, 30 or 33 of Act, 1976.
19. If Section 34 of Act, 1976 is interpreted that if a party aggrieved by the order of competent authority, prefers an appeal and appeal is allowed, then the opposite party who is aggrieved by the order of Appellate Authority also cannot approach the State Govt. under Section 34 of Act, 1976, then it would give rise to a situation which may lead to absurdity. For example, if the proceedings are initiated for declaring large piece of land as surplus land and ultimately if a small piece of land is declared as surplus, and the landowner files an appeal against the order by which small piece of land was declared as surplus, then the question is that whether the power to revise the order of the competent authority by which remaining piece of land was not declared as surplus land would automatically stand closed merely on the ground that the order of competent authority was tested in appeal? If the answer is given in "Yes" then, unscrupulous person by filing an appeal would successfully take away the power of the State Govt. to exercise its suomotu power of revision against the remaining part of the order of competent authority which is in his favour. Thus, the question is that by filing an appeal, whether one party to the litigation can take away the suomotu powers of State Govt. of revision under Section 34 of Act, 1976 or not?
20. As already held that addition or subtraction of words in the Statute is permissible when the same becomes inevitable to give purposive meaning to the provisions of law.
21. The Supreme Court in the case of Gujarat Urja Vikas Nigam 11 W.P. No.4/2000 Ltd. v. Essar Power Ltd., reported in (2008) 4 SCC 755has held as under :
38. It is deeply regrettable that in our courts of law, lawyers quote Maxwell and Craies but nobody refers to the Mimansa principles of interpretation. Today many of our educated people are largely unaware about the great intellectual achievements of our ancestors and the intellectual treasury they have bequeathed us. The Mimansa principles of interpretation is part of that intellectual treasury but it is distressing to note that apart from a reference to these principles in the judgment of Sir John Edge, the then Chief Justice of the Allahabad High Court in Beni Prasad v.
HardaiBibi and some judgments by one of us (M. Katju, J.) there has been almost no utilisation of these principles even in our own country.
39. It may be mentioned that the Mimansa rules of interpretation were our traditional principles of interpretation laid down by Jaimini, whose sutras were explained by Shabar, KumarilaBhatta, Prabhakar, etc. These Mimansa principles were regularly used by our great jurists like Vijnaneshwara (author of Mitakshara), Jimutvahana (author of Dayabhaga), Nanda Pandit, etc. whenever they found any conflict between the various smritis or any ambiguity, incongruity, or casus omissus therein. There is no reason why we cannot use these principles on appropriate occasions. However, it is a matter of deep regret that these principles have rarely been used in our law courts. It is nowhere mentioned in our Constitution or any other law that only Maxwell's principles of interpretation can be used by the court. We can use any system of interpretation which helps us to resolve a difficulty. In certain situations Maxwell's principles would be more appropriate, while in other situations the Mimansa principles may be more suitable.
40. The Mimansa principles of interpretation were created for resolving the practical difficulties in performing the yagyas. The rules for performing the various yagyas were given in books called Brahmanas (all in Sanskrit) e.g. ShatapathBrahmana, AitareyaBrahmana, TaitareyaBrahmana, etc. There were many ambiguities, obscurities, conflicts, etc. in the Brahmana texts, and hence 12 W.P. No.4/2000 the Mimansa principles of interpretation were created for resolving these difficulties.
41. Although the Mimansa principles were created for religious purpose, they were so rational and logical that they subsequently began to be used in law, grammar, logic, philosophy, etc. i.e. they became of universal application. The books on Mimansa are all in Sanskrit, but there is a good book in English by Prof. KishoriLalSarkar called The Mimansa Rules of Interpretation published in Tagore Law Lecture Series, which may be seen by anyone who wishes to go deeper into the subject.
42. In the Mimansa system there are three ways of dealing with conflicts which have been fully discussed by Shabar Swami in his commentary on Sutra 14, Chapter III, Book III of Jaimini:
(1) Where two texts which are apparently conflicting are capable of being reconciled, then by the principle of harmonious construction (which is called the samanjasya principle in Mimansa) they should be reconciled. The samanjasya principle has been laid down by Jaimini in Chapter II, Sutra 9 which states:
"The inconsistencies asserted are not actually found. The conflicts consist in difference of application. The real intention is not affected by application. Therefore, there is consistency."
The samanjasya axiom is illustrated in Dayabhaga. Jimutvahana found that there were two apparently conflicting texts of Manu and Yajnavalkya. The first stated, "a son born after a division shall alone take the paternal wealth". The second text stated, "sons, with whom the father has made a partition, should give a share to the son born after the distribution". Jimutvahana, utilising the samanjasya principle of Mimansa, reconciled these two texts by holding that the former applies to the case of property which is the self- acquired property of the father, and the latter applies to the property descended from the grandfather.
One of the illustrations of the samanjasya principle is the maxim of lost horses and burnt chariot (nashtashvadaghdarathanyaya). This is based on the story of two men travelling in their respective chariots and one of them losing his horses and the other having his chariot burnt 13 W.P. No.4/2000 through the outbreak of fire in the village in which they were putting up for the night. The horses that were left were harnessed to the remaining chariot and the two men pursued their journey together. Its teaching is union for mutual advantage, which has been quoted in the 16th Vartika to Panini, and is explained by Patanjali. It is referred to in KumarilaBhatta'sTantravartika.
(2) The second situation is a conflict where it is impossible to reconcile the two conflicting texts despite all efforts. In this situation the vikalpa principle applies, which says that whichever law is more in consonance with reason and justice should be preferred. However, conflict should not be readily assumed and every effort should be made to reconcile conflicting texts. It is only when all efforts of reconciliation fail that the vikalpa principle is to be resorted to. (3) There is a third situation of a conflict and this is where there are two conflicting irreconcilable texts but one overrides the other because of its greater force. This is called a badha in the Mimansa system (similar to the doctrine of ultra vires). The great Mimansa scholar SreeBhattaSankara in his book MimansaValaprakasha has given several illustrations of badha as follows:
"A shruti of a doubtful character is barred by a shruti which is free from doubt. A linga which is more cogent bars that which is less cogent. Similarly a shruti bars a smriti. A shruti bars achara (custom) also. An absolute smriti without reference to any popular reason bars one that is based upon a popular reason. An approved achara bars an unapproved achara. An unobjectionable achara bars an objectionable achara. A smriti of the character of a vidhi bars one of the characters of an arthavada. A smriti of a doubtful character is barred by one free from doubts. That which serves a purpose immediately bars that which is of a remote service. That which is multifarious in meaning is barred by that which has a single meaning. The application of a general text is barred by a special text. A rule of procedure is barred by a mandatory rule. A manifest sense bars a sense by context. A primary sense bars a secondary sense. That which has a single indication is preferable to what has many indications. An indication of an inherent nature bars one which is not so. That which indicates an action is to be preferred to what 14 W.P. No.4/2000 merely indicates a capacity. If you can fill up an ellipse by an expression which occurs in a passage, you cannot go beyond it."
(emphasis supplied) The Supreme Court in the case of Siraj-ul-Haq Khan v. Sunni Central Board of Wakf, reported in AIR 1959 SC 198 has held as under :
16. The appellants' argument is that before Section 5(2) can be applied to their suit it must be shown that the suit is filed either by a mutawalli of a waqf or any person interested in the waqf. The appellants are neither the mutawallis of the waqf nor are they persons interested in the waqf. Their case is that the properties in suit do not constitute a waqf under the Act but are held by them as proprietors, and that the notification issued by Respondent 1 and the authority purported to be exercised by it in respect of the said properties are wholly void. How can the appellants who claim a declaration and injunction against Respondent 1 on these allegations be said to be persons interested in the waqf, asks Mr Dar. The word 'waqf' as used in this sub-section must be given the meaning attached to it by the definition in Section 3(1) of the Act and since the appellants totally deny the existence of such a waqf they cannot said to be interested in the 'waqf'. The argument thus presented appears prima facie to be attractive and plausible; but on a close examination of Section 5(2) it would appear clear that the words "any person interested in a waqf cannot be construed in their strict literal meaning. If the said words are given their strict literal meaning, suits for a declaration that any transaction held by the Commissioner to be a waqf is not anwaqf can never be filed by a mutawalli of a waqf or a person interested in a waqf. The scheme of this sub-section is clear. When the Central Board assumes jurisdiction over any waqf under the Act it proceeds to do so on the decision of three points by the Commissioner of Waqfs. It assumes that the property is a waqf, that it is either a Sunni or a Shia, waqf, and that it is not a waqf which falls within the exceptions mentioned in Section 2. It is in respect of each one of these decisions that a suit is contemplated by 15 W.P. No.4/2000 Section 5, sub-Section (2). If the decision is that the property will not a waqf or that it is a waqf falling within the exceptions mentioned by Section 2, the Central Board may have occasion to bring a suit. Similarly if the decision is that the waqf is Shia and not Sunni, a Sunni Central Board may have occasion to bring a suit and vice versa. Likewise the decision that the property is a waqf may be challenged by a person who disputes the correctness of the said decision. The decision that a property does not fall within the exceptions mentioned by Section 2 may also be challenged by a person who claims that the waqf attracts the provisions of Section 2.
If that be the nature of the scheme of suits contemplated by Section 5(2) it would be difficult to imagine how the mutawalli of a waqf or any person interested in a waqf can ever sue for a declaration that the transaction held by the Commissioner of the Waqfs to be a waqf is not a waqf. That is why we think that the literal construction of the expression "any person interested in a waqf" would render a part of the sub-section wholly meaningless and ineffective. The legislature has definitely contemplated that the decision of the Commissioner of the Waqfs that a particular transaction is a waqf can be challenged by persons who do not accept the correctness of the said decision, and it is this class of persons who are obviously intended to be covered by the words "any person interested in a waqf". It is well settled that in construing the provisions of a statute courts should be slow to adopt a construction which tends to make any part of the statute meaningless or ineffective; an attempt must always be made so to reconcile the relevant provisions as to advance the remedy intended by the statute. In our opinion, on a reading of the provisions of the relevant sub-section as a whole there can be no doubt that the expression "any person interested in a waqf" must mean "any person interested in what is held to be a waqf". It is only persons who are interested in a transaction which is held to be a waqf who would sue for a declaration that the decision of the Commissioner of the Waqfs in that behalf is wrong, and that the transaction in fact is not a waqf under the Act. We must accordingly hold that the relevant clause on which Mr Dar has placed his argument in repelling the application of Section 5(2) to the present suit must not be strictly or literally construed, and that it should 16 W.P. No.4/2000 be taken to mean any person interested in a transaction which is held to be a waqf. On this construction the appellants are obviously interested in the suit properties which are notified to be waqf by the notification issued by Respondent 1, and so the suit instituted by them would be governed by Section 5, sub-Section (2) and as such it would be barred by time unless it is saved under Section 15 of the Limitation Act.
(Underline supplied)
22. It is well established principle of law that when a choice has to be made out of two constructions, both of which require reading of some additional words, the Court will naturally prefer that which is more in consonance with reason or justice. The Supreme Court in the case of Ramaswamy Nadar v. State of Madras, reported in AIR 1958 SC 56 has held as under :
6.........In our opinion, the words just quoted out of clause
(b) which deals with an appeal from a conviction, were not necessary for the purpose of clause (a) which deals with an appeal from an order of acquittal. Under both the clauses (a) and (b), the specific power to reverse the order appealed from, is there, but because there has been a conviction by the trial court or the court immediately below the High Court, the latter Court is authorized specifically to alter the finding or the nature of the sentence in clause (b). In clause (a), after the High Court has decided to reverse the order of acquittal, it has been given the power to find the accused guilty, besides other powers enumerated above. The question naturally arises "find the accused person guilty of what?" The answer sought to be given by the counsel for the appellant is that the High Court may find him guilty of the offence with which he stood charged in the court below and of which he was acquitted;
but not of the offence disclosed by the evidence as that would be adding to the words of clause (a) the words "of the offence disclosed" or words to that effect which would be contrary to the intention of the Code as is shown by the words of clause
(b). But this argument is wholly ineffective because in either view of the matter the court has to supply some words in answer to the question "find him guilty of what?" According 17 W.P. No.4/2000 to the appellant, those additional words should be "of such offence as has been charged and of which he had been acquitted", and according to the other view, "of the offence disclosed". If, in construing the section, the court has to supply some words in order to make the meaning of the statute clear, it will naturally prefer the latter construction which is more in consonance with reason and justice.........
The Supreme Court in the case of Moradabad Development Authority (Supra) has held as under :
19. As a bare reading of the provision shows that it relates to suomotu action on the part of the State Government. In that sense, a person aggrieved who had a remedy of appeal under Section 33 has no statutory right to move in revision.However, for the exercise of revisional power by the State Government it is open to the State Government to examine a petition and on the basis of material indicated therein to decide whether any action in terms of Section 34 is called for. If the State Government decides to act on the basis of petition filed by any person, it has to examine as to why the person has not availed the remedy of filing an appeal. It is also necessary to examine whether after a long lapse of time any action is warranted. In this exercise, filing of petition within a reasonable time is inbuilt. What would be reasonable time would depend upon the facts of each case and no straitjacket formula can be adopted or applied.
(Underline Supplied)
23. Thus, it is held that if an appeal is preferred by an aggrieved person against the order passed by the competent authority, then he shall not have a right to approach the State Govt. under Section 34 of Act, 1976, but an authority/State/person who was not aggrieved by the order of the competent authority, but is aggrieved by the order passed by the Appellate Authority, then he/it can invite the attention of the State Govt. regarding impropriety or illegality committed by the Appellate Authority.
18 W.P. No.4/200024. For the reasons mentioned above, this Court is of the considered opinion, that the exercise of power by State Govt. under Section 34 of Act, 1976 was in accordance with law and therefore, it cannot be said that the impugned order dated 18-11-1999 was without jurisdiction. Whether possession of the land in dispute was taken by the State or not and whether the proceedings under the Act, 1976 had stood abated in the light of Section 4 of Urban Land (Ceiling and Regulation) Repeal Act, 1999.
25. The Record of the Ceiling Proceedings has been provided in sealed cover.
26. Order sheet dated 5-1-1993 and 13-12-1993 read as under :
5-1-1993 izdj.k vkt izLrqr A /kkjk 10¼3½ dh vf/klwpuk dk izdk'ku e-iz- jkti= Hkkx 3¼1½ ds i`"B dekad 1492 ij fnukad 29-10-93 dks gks pqdk gSA /kkjd dks vf/kfu;e dh /kkjk 10¼5½ ds rgr dCtk nsus gsrq uksfVl tkjh gksA uksfVl dh ,d izfr rglhynkj utwy dks fu;ekuqlkj dk;Zokgh djus gsrq Hksth tkosA Iks'kh fnukad 13-12-993 13-12-93 izdj.k izLrqrA /kkjd mn; izrki flag mi-A mUgksus crk;k fd izdj.k es ofj"B U;k;ky; ¼vLi"V½ ds ;gka vihy izLrqr dh gSA /kkjk 10¼5) dk uksfVl 7-12-93 dks rkehy fd;k x;k gSA /kkjd 10¼5½ ds uksfVl ds laca/k es rglhynkj utwy ls laidZ dj dCtk lkSaiAs
27. Thereafter, it is clear from the next order sheet dated 15-12-93 that the record was sent to the Court of Appellate Authority.
28. Admittedly, there was no stay on the proceedings for taking over of possession, therefore, the proceedings for taking over of possession continued before the Tahsildar Nazul. As per the order sheets, the case was received by Tahsildar Nazul on 22-12-1993 and accordingly, 19 W.P. No.4/2000 direction was given to take possession. As per order sheet dated 22- 1994, the Naib Tahsildar directed for taking possession and in order sheet dated 31-1-1994, the fact of taking over of possession was mentioned. The possession panchnama is also a part of the record which says that exparte possession was taken on 31-1-1994.
29. Thus, it is clear that notice under Section 10(5) was served on the petitioner and he also appeared before the competent authority on 13- 12-1993. The notice under Section 10(5) of Act, 1976 was received by the Petitioner on 7-12-1993 and exparte possession was taken on 31-1- 1994 i.e., after one month of receipt of notice under Section 10(5) of Act, 1976.
30. It is submitted by Counsel for Petitioner that since, paper possession was taken therefore, it cannot be said actual possession was taken.
31. Thus, the moot question for consideration is that whether paper possession is a recognized mode of taking possession or not?
32. The question is no more res integra.
33. The Supreme Court in the case of Balmokand Khatri Educational and Industrial Trust, Amritsar Vs. State of Punjab and others, reported in AIR 1996 SC 1239 has held as under :-
"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 20 W.P. No.4/2000 tantamount only to illegal or unlawful possession."
The Supreme Court in the case of Tamil Nadu Housing Board Vs. A.Viswam(Dead) by LRs., reported in AIR 1996 SC 3377 has held as under :-
"9. It is settled law by series of judgments of this Court that one of the accepted modes of taking possession of the acquired land is recording of a memorandum or Panchnama by the LAO in the presence of witnesses signed by him/them and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. It is common knowledge that in some cases the owner/interested person may not cooperate in taking possession of the land."
The Supreme Court in the case of Sita Ram Bhandar Society, New Delhi Vs. lieutenant Governor, Government of NCT, Delhi and others, reported in (2009) 10 SCC 501 has held as under :-
"28 A cumulative reading of the aforesaid judgments would reveal that while taking possession, symbolic and notional possession is perhaps not envisaged under the Act but the manner in which possession is taken must of necessity depend upon the facts of each case. Keeping this broad principle in mind, this Court in T.N. Housing Board v. A. Viswam [(1996) 8 SCC 259 : AIR 1996 SC 3377] after considering the judgment in Narayan Bhagde case [(1976) 1 SCC 700] , observed that while taking possession of a large area of land (in this case 339 acres) a pragmatic and realistic approach had to be taken. This Court then examined the context under which the judgment in Narayan Bhagde case [(1976) 1 SCC 700] had been rendered and held as under:
(Viswam case [(1996) 8 SCC 259 : AIR 1996 SC 3377] , SCC p. 262, para 9) "9. It is settled law by series of judgments of this Court that one of the accepted modes of taking possession of the acquired land is recording of a memorandum or panchnama by the LAO in the 21 W.P. No.4/2000 presence of witnesses signed by him/them and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. It is common knowledge that in some cases the owner/interested person may not be cooperative in taking possession of the land
29. In BalmokandKhatri Educational and Industrial Trust v.
State of Punjab [(1996) 4 SCC 212 : AIR 1996 SC 1239] yet again the question was as to the taking over of the possession of agricultural land and it was observed thus: (SCC p. 215, para 4) "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."
30. It would, thus, be seen from a cumulative reading of the aforesaid judgments, that while taking possession of a large area of land with a large number of owners, it would be impossible for the Collector or the revenue official to enter each bigha or biswa and to take possession thereof and that a pragmatic approach has to be adopted by the Court. It is also clear that one of the methods of taking possession and handing it over to the beneficiary Department is the recording of a panchnama which can in itself constitute evidence of the fact that possession had been taken and the land had vested absolutely in the Government."
The Supreme Court in the case of Banda Development Authority v. MotiLal Agarwal reported in (2011) 5 SCC 394 has held as under :-
37. The principles which can be culled out from the abovenoted judgments are:22 W.P. No.4/2000
(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 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 presence 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.
Further the Supreme Court in the case of State of U.P. and another Vs. Ehsan and another, decided on 13.10.2023 in C.A.No.5721/2023 has held that no doubt, in a writ proceeding between the State and a landholder, the Court can, on the basis of materials/evidence(s) placed on record, determine whether possession has been taken or not and while doing so, it may draw adverse inference 23 W.P. No.4/2000 against the State where the statutory mode of taking possession has not been followed. However, where possession is stated to have been taken long ago and there is undue delay on the part of landholder in approaching the writ court, infraction of the prescribed procedure for taking possession would not be a determining factor, inasmuch as, it could be taken that the person for whose benefit the procedure existed had waived his right thereunder. In such an event, the factum of actual possession would have to be determined on the basis of materials/evidence(s) available on record and not merely by finding fault in the procedure adopted for taking possession from the land holder. And if the writ court finds it difficult to determine such question, either for insufficient/inconclusive materials/evidence(s) on record or because oral evidence would also be required to form a definite opinion, it may relegate the writ petitioner to a suit, if the suit is otherwise maintainable. There was a serious dispute with regard to taking of possession of the surplus land. There was a delay of about seven years in filing the first writ petition from the date when possession was allegedly taken by the State, after publication of the vesting notification. No documentary evidence such as a Khasra or Khatauni of the period between alleged date of taking possession and filing of the first writ petition was filed by the original petitioner. In the earlier two rounds of litigation, the High Court refrained from deciding the issue of possession of the surplus land even though that issue had arisen directly between the parties. Infraction of the prescribed statutory procedure for taking possession cannot be the sole basis to discard State's claim of possession, when it is stated to have been taken long before the date the issue is raised, held, that the High Court should have refrained from deciding the issue with regard to taking of actual possession of the surplus land prior to the cut off date 24 W.P. No.4/2000 specified in the Repeal Act, 1999. Instead, the writ petitioner should have been relegated to a suit.
34. Thus, it is clear that one of the permissible mode of taking possession is by preparing possession panchnama. Therefore, it cannot be said that possession of surplus land was not taken. Furthermore, when the possession was being taken, the petitioners were not present on the spot.
35. In the present case also, the proceedings regarding possession were challenged by the Petitioner by amending the writ petition in the year 2018. Thus, the action of the respondents in taking over the possession of the land in dispute in the year 1994 remained un- challenged by the petitioner till the year 2018. Therefore, even otherwise, the challenge to the possession proceedings is highly belated.
36. It is submitted by the Counsel for the petitioner that since, the petitioners are in possession of the land in dispute, therefore, the possession was never taken and, therefore, the proceedings under Act, 1976 have abated. Further, it cannot be said that the challenge to the possession was belated.
37. Now the question for consideration is that whether the possession of a person, from whom possession has already been taken under Act, 1976 can be said to be a legal possession or his possession would be that of an encroacher.
38. The question is no more res integra.
39. The Constitutional Bench of Supreme Court in the case of Indore Development Authority Vs. Manoharlal and others, reported in (2020) 8 SCC 129 has held as under :-
"148. A similar view has been taken in Market Committee v.25 W.P. No.4/2000
Krishan Murari [Market Committee v. Krishan Murari, (1996) 1 SCC 311] and PuttuLal v. State of U.P. [PuttuLal v.
State of U.P., (1996) 3 SCC 99] The concept of "vesting" was also considered in Fruit & Vegetable Merchants Union v. Delhi Improvement Trust [Fruit & Vegetable Merchants Union v. Delhi Improvement Trust, AIR 1957 SC 344 : 1957 SCR 1] . Once vesting takes place, and is with possession, after which a person who remains in possession is only a trespasser, not in rightful possession and vesting contemplates absolute title, possession in the State. This Court observed thus : (Fruit & Vegetable Merchants Union case [Fruit & Vegetable Merchants Union v. Delhi Improvement Trust, AIR 1957 SC 344 : 1957 SCR 1] , AIR p. 353, para 19) "19. That the word "vest" is a word of variable import is shown by provisions of Indian statutes also. For example, Section 56 of the Provincial Insolvency Act (5 of 1920) empowers the court at the time of the making of the order of adjudication or thereafter to appoint a receiver for the property of the insolvent and further provides that 'such property shall thereupon vest in such receiver'. The property vests in the receiver for the purpose of administering the estate of the insolvent for the payment of his debts after realising his assets. The property of the insolvent vests in the receiver not for all purposes but only for the purpose of the Insolvency Act and the receiver has no interest of his own in the property. On the other hand, Sections 16 and 17 of the Land Acquisition Act (1 of 1894), provide that the property so acquired, upon the happening of certain events, shall 'vest absolutely in the Government free from all encumbrances'. In the cases contemplated by Sections 16 and 17 the property acquired becomes the property of Government without any conditions or limitations either as to title or possession. The legislature has made it clear that the vesting of the property is not for any limited purpose or limited duration. It would thus appear that the word "vest" has not got a fixed connotation meaning in all cases that the property is owned by the person or the authority in whom it vests. It may vest in title, or it may vest in possession, or it may vest in a limited sense, as 26 W.P. No.4/2000 indicated in the context in which it may have been used in a particular piece of legislation. The provisions of the Improvement Act, particularly Sections 45 to 49 and 54 and 54-A when they speak of a certain building or street or square or other land vesting in a municipality or other local body or in a trust, do not necessarily mean that ownership has passed to any of them."
Thus, it is clear that once vesting takes place and is with possession, after which a person who is in possession, is only a trespasser and not in rightful possession.
Similarly, the Supreme Court in the case of Land & Building Department through Secretary and Another Vs. Attro Devi and others, decided by judgment dated 11.04.2023 decided in Civil Appeal No.2749/2023 has held as under :-
"12. The issue as to what is meant by "possession of the land by the State after its acquisition" has also been considered by Constitution Bench of Hon'ble Supreme Court in Indore Development Authority's case (supra). It is opined therein that after the acquisition of land and passing of award, the land vests in the State free from all encumbrances. The vesting of land with the State is with possession. Any person retaining the possession thereafter has to be treated trespasser. When large chunk of land is acquired, the State is not supposed to put some person or police force to retain the possession and start cultivating on the land till it is utilized. The Government is also not supposed to start residing or physically occupying the same once process of the acquisition is complete. If after the process of acquisition is complete and land vest in the State free from all encumbrances with possession, any person retaining the land or any reentry made by any person is nothing else but trespass on the State land. Relevant paragraphs 244, 245 and 256 are extracted below:
"244. Section 16 of the Act of 1894 provided that possession of land may be taken by the State Government after passing of an award and thereupon land vest free 27 W.P. No.4/2000 from all encumbrances in the State Government. Similar are the provisions made in the case of urgency in Section 17(1). The word "possession" has been used in the Act of 1894, whereas in Section 24(2) of Act of 2013, the expression "physical possession" is used. It is submitted that drawing of panchnama for taking over the possession is not enough when the actual physical possession remained with the landowner and Section 24(2) requires actual physical possession to be taken, not the possession in any other form. When the State has acquired the land and award has been passed, land vests in the State Government free from all encumbrances. The act of vesting of the land in the State is with possession, any person retaining the possession, thereafter, has to be treated as trespasser and has no right to possess the land which vests in the State free from all encumbrances.
245. The question which arises whether there is any difference between taking possession under the Act of 1894 and the expression "physical possession" used in Section 24(2). As a matter of fact, what was contemplated under the Act of 1894, by taking the possession meant only physical possession of the land. Taking over the possession under the Act of 2013 always amounted to taking over physical possession of the land. When the State Government acquires land and draws up a memorandum of taking possession, that amounts to taking the physical possession of the land. On the large chunk of property or otherwise which is acquired, the Government is not supposed to put some other person or the police force in possession to retain it and start cultivating it till the land is used by it for the purpose for which it has been acquired. The Government is not supposed to start residing or to physically occupy it once possession has been taken by drawing the inquest proceedings for obtaining possession thereof. Thereafter, if any further retaining of land or any reentry is made on the land or someone starts cultivation on the open land or starts residing in the outhouse, etc., is deemed to be the trespasser on land which in possession of the State. The possession of trespasser always inures for the benefit of the real owner that is the State Government in the case.28 W.P. No.4/2000
xxx
256. Thus, it is apparent that vesting is with possession and the statute has provided under Sections 16 and 17 of the Act of 1894 that once possession is taken, absolute vesting occurred. It is an indefeasible right and vesting is with possession thereafter. The vesting specified under Section 16, takes place after various steps, such as, notification under Section 4, declaration under Section 6, notice under Section 9, award under Section 11 and then possession. The statutory provision of vesting of property absolutely free from all encumbrances has to be accorded full effect. Not only the possession vests in the State but all other encumbrances are also removed forthwith. The title of the landholder ceases and the state becomes the absolute owner and in possession of the property. Thereafter there is no control of the landowner over the property. He cannot have any animus to take the property and to control it. Even if he has retained the possession or otherwise trespassed upon it after possession has been taken by the State, he is a trespasser and such possession of trespasser inures for his benefit and on behalf of the owner."
(emphasis supplied)
40. Section 10(3) of the Urban Land (Ceiling and Regulation) Act, 1976 reads as under :-
"10. Acquisition of vacant land in excess of ceiling limit.- (3) At any time after the publication of the notification under subsection (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."
41. The Supreme Court in the case of Attro Devi (supra) has also 29 W.P. No.4/2000 held that the vesting of land with the State is with possession. Any person retaining the possession thereafter has to be treated trespasser. When large chunk of land is acquired, the State is not supposed to put some person or police force to retain the possession and start cultivating on the land till it is utilized. The Government is also not supposed to start residing or physically occupying the same once process of the acquisition is complete. If after the process of acquisition is complete and land vest in the State free from all encumbrances with possession, any person retaining the land or any re-entry made by any person is nothing else but trespass on the State land.
42. Thus, once the land has vested in the State Government, then the possession of a person would be that of an encroacher only and he cannot claim adverse possession. Such person cannot be treated as a person in rightful possession.
43. No more arguments were advanced.
44. For the reasons mentioned above, this Court is of the considered opinion, that no case is made out warranting interference.
45. The petition fails and is hereby Dismissed.
(G.S. AHLUWALIA) JUDGE HS HEMANT SARAF 2024.04.10 18:57:15 +05'30'