Madhya Pradesh High Court
Shri Shankerji Maharaj Trust Jabalpur vs The State Of Madhya Pradesh on 27 April, 2021
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
THE HIGH COURT OF MADHYA PRADESH
W.P. No.6986/2018
Shri Shankerji Maharaj Trust
Vs.
The State of Madhya Pradesh and others
Date of Order 27.04.2021
Bench Constituted Single Bench
Order delivered by Hon'ble Shri Justice Sanjay
Dwivedi, J.
Whether approved for reporting Name of counsels for For Petitioner : Shri Abhijeet Awasthi the parties with Shri Arjun Bajpai, Advocates.
For respondents/State : Shri Maneesh Kholia, Panel Lawyer.
Law laid down Significant Para Nos.
Reserved on : 16.03.2021 Delivered on : 27.04.2021 (O R D E R) This petition was earlier heard on 09.10.2020 finally and was kept reserved for orders.
2. The State was directed to produce the record of ceiling case but the same was not done, therefore, on 03.02.2021, the matter had been released.
3. On 16.03.2021, the matter was listed for hearing and it was finally heard. The State assured to produce the record of the ceiling case, but still nothing has been done and record has not been produced, therefore, this Court has no option but to decide the case on the basis of material
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W.P. No.6986/2018available on record.
4. This petition is filed under Article 226 of the Constitution of India questioning the legality, validity and propriety of the order dated 29.01.2018 (Annexure-P/9) passed by respondent No.2 rejecting the application/representation filed by the petitioner in pursuance to the direction issued by the writ Court while deciding the writ petitions i.e. W.P. No.2605/1999 and W.P. No.10993/2016. The claim of the petitioner for release of their land said to have been vested in the State by virtue of proceeding initiated under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (hereafter referred to as the 'Act, 1976') declaring the same as surplus for the reason that the possession of the land has never been taken and the petitioner is still in possession of the land and in view of the provisions of the Urban Land Ceiling (Repeal) Act, 1999 (in short the 'Repeal Act'), the proceeding of the Act, 1976 is abated and revenue record be accordingly corrected, has been denied by respondent No.2 and passed the order impugned rejecting the representation/application of the petitioner. Hence, this petition has been filed.
5. The relevant facts adumbrated in a nutshell are that:
(5.1) In a proceeding initiated by the respondents declaring the land of the petitioner (private trust) to be surplus
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land in terms of the provisions of the Act, 1976, despite objection raised by the petitioner about application of the provisions of the Act, 1976 in its land saying that it is a land of trust but not of an individual, the land of the petitioner/trust has been declared surplus and instructions were issued to take possession of the said land.
(5.2) The Parliament introduced the provisions of the Repeal Act directing that the land, of which possession has not been taken over, be returned to the land owner and the said proceeding be declared abated and further the revenue record be corrected accordingly.
(5.3) After enforcing the Repeal Act, the petitioner moved an application for restoration of their name in the revenue record and also filed a writ petition before the High Court. The said writ petition was registered as W.P. No.2605/1999 which was disposed of vide order dated 17.01.2002 (Annexure-P/1) directing the petitioner to put-forth their grievance before the competent authority and that authority shall provide an opportunity of hearing and then give specific finding in respect of the factum of taking over the possession.
(5.4) The petitioner thereafter moved an application on 27.08.2002 (Annexure-P/2). The competent authority vide order dated 23.04.2003 (Annexure-P/3) directed the Tahsildar to
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submit the report showing as to in what manner the possession has been taken by him because the Tahsildar was the competent authority to take possession of the land under the provisions of the Act, 1976. Thereafter the Tahsildar registered a case and on 05.06.2003 directed the Patwari to prepare Panchnama after inspecting the land/spot and submit a report in that regard. The order-sheet dated 05.06.2003 of the Tahsildar is available on record as Annexure-P/4. However, when nothing was done further and no report before the Tahsildar has been filed by the Patwari then the petitioner submitted an application before the Collector-cum-Competent Authority informing him that in pursuance to the direction issued by the Tahsildar, no report has been filed and the petitioner still being in possession of the land asked that the revenue record be corrected by recording the name of the petitioner as the owner of the land. When nothing was done on the said application, then again the petitioner preferred a writ petition which was registered as W.P. No.10993/2016 and got disposed of vide order dated 01.12.2016 directing the competent authority i.e. Collector to consider and decide the application/representation filed by the petitioner within a period of six months.
(5.5) The order of the High Court was produced before the
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competent authority on 11.08.2017 vide Annexure-P/7 and a written submission was also made vide Annexure-P/8 before the competent authority. In the written submission, the petitioner has categorically stated that the land is still in their possession and no proceeding as provided under Section 10 of the Act, 1976 for taking possession of surplus land has been initiated and therefore, the alleged possession as is being shown by the respondent/authority is held illegal in view of the law laid down by the Supreme Court in case of State of U.P. Vs. Hariram reported in (2013) 4 SCC 280.
(5.6) The competent authority thereafter passed an order on 29.01.2018 (Annexure-P/9) mentioning therein that the possession of the land was taken over on 14.02.2000 and as such, Sections 3 and 4 of the Repeal Act are not applicable in the present case and further observed that it is not appropriate for the competent authority to rescrutinize the proceeding recorded by the authority in possession case only because the Repeal Act has come into force.
6. Challenging the order of the competent authority, this petition has been filed.
7. The challenge is founded mainly on the ground that the application under Section 4 of the Repeal Act has been filed by the petitioner in pursuance to the direction given by the High
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W.P. No.6986/2018Court saying that the proceeding initiated under the Act, 1976 is abated, but no report has been filed by the Patwari despite the direction issued by the Tahsildar to prepare the spot Panchnama so as to show the manner in which the possession of the land has been taken over and further who is in possession of the land. The said report since not submitted, therefore, adverse inference has to be drawn by the authority and submission made by the petitioner saying that the land is still in their possession had to be accepted. It is further contended by the petitioner that the respondent/authority despite repeated direction did not produce the record to show as to whether the possession has been taken by the respondent/authority by applying the mandatory requirement of Section 10 of the Act, 1976. If not, then the said possession cannot be said to be legal and in such a circumstance Section 4 of the Repeal Act comes into operation declaring the proceedings of declaring the land surplus under the provisions of the Act, 1976 abated. It is very categorically contended by the petitioner that no notices under Sections 10(5) and 10(6) of the Act, 1976 have ever been issued and served upon the petitioner. The petitioner submits that the possession of the land is still with them and has never been taken by the respondent/authority.
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8. Reply has been filed by the respondents stating therein that in view of the provision of Section 8 of the Act, 1976, the land in question has been declared surplus. The objection raised by the petitioner against that has also been considered and the competent authority giving opportunity of hearing to the petitioner declared the land surplus. It is also stated by the respondents that notice under Section 10(1) was published in M.P. Gazette on 09.07.1985. Notice under Section 10(3) was published in the State Gazette on 14.03.1986;
thereafter the possession case was prepared i.e. Case No.11/A74/1999-2000 and possession has been taken on 14.02.2000. According to the respondents, total 1.88 hectares land was declared surplus and possession of the said land was taken on 14.02.2000, accordingly, nothing remains to be adjudicated. The provisions of the Repeal Act came into force after taking possession of the land in question and as such, the respondents submit that Section 4 of the Repeal Act has no applicability in the present case and no proceedings under Sections 11, 12, 13 and 14 of the Act, 1976 were pending.
9. Rejoinder has been filed by the petitioner reiterating the fact that the possession has not been taken in accordance with law as Section 10 of the Act, 1976 has not been followed.
No notice under Section 10(5) and then Section 10(6) of the
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W.P. No.6986/2018Act, 1976 were issued and served upon the petitioner.
10. While arguing the matter, the learned counsel for the petitioner has made submission as has been made in the petition and further added that in absence of producing the record and not filing any document in support of the stand taken by the respondents saying as to in what manner possession has been taken over, adverse inference should be drawn against the respondents. He further submits that no report in pursuance to the direction of this Court regarding possession has been filed by the Patwari before the Tahsildar, therefore, adverse inference should be drawn against the respondents accepting the submission of the petitioner that the possession is still with them as the procedure required mandatorily to be followed, has not been followed by the respondents. As such, Section 4 has direct application and proceedings initiated under the Act, 1976 shall be declared abated.
11. The respondents' counsel has supported the stand taken by the competent authority in the impugned order and submitted that once the possession has been taken over and that finding has come in the impugned order, nothing more is required to be considered in this case. He has assured this Court that the record of the case of possession would be produced which would make it clear that the contention raised
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W.P. No.6986/2018by the petitioner is without any foundation.
12. Heard rival contentions of the learned counsel for the parties and perused the record available.
13. Before adverting into the merits of the case, it is apt to mention that despite giving repeated opportunity to the respondents to produce the record of possession case, no record has been produced by the respondents, therefore, this Court has no option but to decide this case on the basis of available material.
14. The petitioner had filed a writ petition i.e. W.P. No.2605/1999 asking for quashing all proceedings initiated under the provisions of the Act, 1976 declaring the land of the petitioner surplus. In the said proceeding, the counsel for the State appeared before the High Court and made a submission that the possession of the land has already been taken in the year 1984. The relevant statement of the State made before the writ Court is reproduced hereinbelow:-
"3. Mr. Ajay Raizad, learned Government Advocate, has submitted that the decision rendered in the case of Atia Mohammadi Begum (supra) has been partially overruled by the Apex Court in the decision rendered in the case of State of A.P. and others Vs. N.Audidesava Reddy and others, 2002 (1) SCC 227. It is also putforth by him that the possession in question had already been taken in 1984 and, therefore, Section 4 of the urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as 'The Repeal Act') would not render any assistance to the petitioner."
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W.P. No.6986/201815. Despite the said fact, the writ Court granted liberty to the petitioner to putforth their grievance before the competent authority that possession has not been taken over and Section 4 clearly stipulates that all proceedings except proceedings initiated under Sections 11, 12, 13 and 14 could abate. The respective part of the writ Court considering the statement of the State for taking over the possession is reproduced hereinbelow:-
"9. Mr. L.N. Namdeo, learned counsel for the petitioner, has submitted that the possession has only been taken over on papers but the same has really not been taken over, as records would clearly show. On the contrary, Mr. Ajay Raizad, learned Government Advocate, submitted that the possession has been taken over as per the provisions of the principal Act. This being a disputed question of fact this Court cannot enter into the same to find out whether the possession, as an actual fact, has been taken over. Mr. Raizada has contended that the office of the competent authority has not been abolished. In view this, I am inclined to direct that the petitioner shall putforth its grievance before the competent authority that the possession has not been taken over and, therefore, no further action can be taken as Section 4 clearly stipulates all proceedings except proceedings under Sections 11, 12, 13 and 14 would abate. In fact, in the case of N.Audikesava Reddy (supra) it was clearly laid down that if the possession is not taken over the same cannot be taken over by the State Government. Keeping in view the factual scenario it is directed that the competent authority shall afford an opportunity of hearing to the petitioner to putforth its grievance that how the possession has not been taken over as per law and nothing subsists to be done in the proceeding. It will be open to the petitioner to raise all the contention from all fours relating to the factum of taking over of possession."
16. In pursuance to the order of the writ Court as quoted hereinabove, an application under Section 4 of the Repeal Act has been filed by the petitioner before the competent authority.
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W.P. No.6986/2018In the said application i.e. Annexure-P/2, it is stated that the Repeal Act came into force in the State of Madhya Pradesh w.e.f. 19.02.2000 and notice under Section 10(5) was never issued and served upon the petitioner. It is clearly stated in the said application that when the Repeal Act accorded sanction by the President of India on 23.02.1993 and accordingly, it got published in the Gazette, then possession said to have been taken by the respondents on 14.02.2000 one sided, is clearly illegal and contrary to law. It is stated in the said application that the said possession although not taken physically but even otherwise shown to have been taken is just to make the application of provisions of the Repeal Act redundant.
17. The competent authority registered a case vide case No.350/A-90(B-9)/79-80 directing the Tahsildar who was the-
then competent authority regarding taking possession of the land under the provisions of the Act, 1976 to submit a report showing as to how the proceedings of possession were initiated. Thereafter, the Tahsildar has also registered a case vide case No.371/2002-2003 and on 05.06.2003 directed the Patwari to make spot inspection and submit a report so as to ascertain the possession over the land.
18. However, from the record available and stand taken by the respondents, nowhere it is stated whether any
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W.P. No.6986/2018Panchnama has been prepared by the Patwari and any such report has been submitted before the Tahsildar. It indicates that the respondents even after issuing specific direction to the competent authority did not care to examine the issue involved and have also not submitted any report before the competent authority and before this Court.
19. No order has been passed by the competent authority and the proceeding initiated in pursuance to the direction of the writ Court was not concluded till year 2016 which compelled the petitioner to approach the High Court again. A writ petition i.e. W.P. No.10993/2016 filed by the petitioner was again disposed of by the Court with the following observations:-
"In view of the submissions made by learned counsel for the parties, the petition filed by the petitioner is disposed of with a direction to respondent No.2 to consider and decide the application filed by the petitioner within a period of six months from the date of receipt of certified copy of the order passed today. It is made clear that this Court has not expressed any opinion on the merits of the case.
With the aforesaid observation, the petition filed by the petitioner is disposed of, with no order as to costs."
20. As submitted by the petitioner, a written submission was placed before the competent authority i.e. Annexure -P/8 on 08.01.2018. In the said written submission, the petitioner very categorically stated that on 14.02.2000 one sided possession shown to have been taken by the Tahsildar but that
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W.P. No.6986/2018proceeding was completed in his room. The physical possession from the petitioner has never been taken. He has also placed reliance upon the law laid down by the Supreme Court in case of Hariram (supra). The competent authority thereafter passed the impugned order reiterating the fact that on 14.02.2000 possession has been taken and nothing was pending before the authority, therefore, there would be no application of Sections 3 and 4 of the Repeal Act and finally rejected the application.
21. I am surprised that the State authority has taken a distinct stand before the Court for the reason that in W.P. No.2605/1999 the State came with a stand that the possession of the land has been taken in the year 1984. The respective portion showing the stand of the State has already been quoted in initial part of this order. Once the possession has already been taken then there was no occasion for the authority to take possession of the land again on 14.02.2000. Further, what prevented the respondents to produce the record of possession case showing as to in what manner possession has been taken.
When the petitioner has taken a specific stand that no notice under Section 10(5) has been served upon them and further no notice under Section 10(6) of the Act, 1976 was issued to the petitioner, the competent authority not answered this fact.
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W.P. No.6986/201822. As has been discussed above, despite the order passed by the competent authority directing the Tahsildar to call the report and Tahsildar further directing the Patwari to prepare the spot Panchnama and submit report so as to ascertain as to in what manner possession of the land has been taken, no such report is prepared and filed before the competent authority.
Even in the order of the competent authority which is impugned in this petition, the competent authority has not discussed about any such report which was to be prepared by the Revenue Authorities after the direction of the High Court. This Court entertaining the dispute raised by the petitioner directed the competent authority to give specific finding as to in what manner possession has been taken or whether the petitioner still holds physical possession of the land or not. But no such enquiry has been conducted by the respondent/authority.
23. From perusal of the impugned order, it is clear that the competent authority has only stated that in pursuance to Section 6(1) of the Act, 1976 case was prepared and after declaring the land surplus, under Section 10(5) Kabja case was prepared and on 14.02.2000 possession has been taken. This stand of the respondents is contrary to the stand taken by them on earlier occasion. Before the writ Court, the respondents while deciding W.P. No.2605/1999 took a stand that the
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W.P. No.6986/2018possession has been taken in the year 1984. Now, the competent authority just to make the petitioner's application invalid and to show that the provisions of Sections 3 and 4 of the Repeal Act are not applicable have stated that the possession of the land has been taken over on 14.02.2000 and hence, the said stand of the respondents is without any foundation. On the contrary, the petitioner has been contending that they are in possession of the land, no notice under Section 10(5) has been served and also no notice under Section10(6) has been issued to the petitioner.
24. I find that the stand of the respondents saying that the possession has been taken on 14.02.2000 does not appear to be proper for the reason that when the Repeal Act came into force in the year 1999 published in the Gazette then showing possession on 14.02.2000 merely because the said Act came into force in the State of Madhya Pradesh on 19.02.2000, is only an eye wash just to make the provisions of the Repeal Act inapplicable. Even otherwise, the continuous conduct of the respondents not producing the record of possession case despite opportunities given by this Court and contrary stand taken before the Court indicate that the possession of the land in question has not been taken by the respondents after following due procedure of law.
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W.P. No.6986/201825. The Supreme Court in case of Hariram (supra) has very categorically laid down the manner in which possession has to be taken under the provisions of the Act, 1976 and if that is not followed, then it is appropriate to hold that the possession howsoever claimed to have been taken is illegal and in such a circumstance the Repeal Act would be applicable. The relevant part of the judgment is quoted hereinbelow:-
"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 under sub-section (5) of Section 10
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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"."
26. This Court in W.P. No.1426/2011 (Dattatrey Rao Kale Vs. The State of Madhya Pradesh & others) relying upon the decision of this Court passed in W.P. 18827/2010 (Mangal Prasad Koshta & others Vs. State of M.P. & others) has observed as under:-
10. The Division Bench of this Court in the case of Rajubai and others (supra) and Thamman Chand
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Koshta (supra) has dealt with the similar situation and after taking note of the provisions of Section 10 of the Principal Act has observed as under:- "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
(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.
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W.P. No.6986/2018(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 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.
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W.P. No.6986/201809. 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 29th 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 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
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W.P. No.6986/2018possession 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 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.
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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 "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
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W.P. No.6986/2018publication 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 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
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W.P. No.6986/2018refuses 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"."
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
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W.P. No.6986/2018notice 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."
11. It is also apt to mention here that the order passed by this Court in the case of Thamman Chand Koshta (supra) has been affirmed by the Apex Court in Special Leave Petition No.14985/2018 vide order dated 16.07.2018.
Similarly, in a writ petition No.11515/2013 Gayatri Devi (supra), the writ Court has also held that the scope and applicability of provision of Sections 10(5) and 10(6) of the Principal Act, taking shelter of the law laid down by the Apex Court in the case of Hari Ram (supra), which reads as under:-
"7. The scope and applicability of the provision of Section 10(5) and 10(6) of the Act has been duly considered by Hon'ble the Apex Court in the case of Hari Ram (Supra) and held as under:
Voluntary Surrender
31. The 'vesting' in sub-section (3) of Section 10, in our view, means vesting of title absolutely and not possession though nothing stands in the way of a person voluntarily surrendering or delivering possession. The court in Maharaj Singh v. State of UP and Others (1977) 1 SCC 155, while interpreting Section 117(1) of U.P. Zamindari Abolition and Land Reform Act, 1950 held that 'vesting' is a word of slippery import and has many meaning and the context controls the text and the purpose and scheme project the particular semantic shade or nuance of meaning. The court in Rejender Kumar v. Kalyan (dead) by Lrs. (2000) 8 SCC 99 held as follows:
"28. ....We do find some contentious substance in the contextual facts, since vesting shall have to be a "vesting" certain. "To
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vest, generally means to give a property in." (Per Brett, L.J. Coverdale v. Charlton. Stroud's Judicial Dictionary, 5th edn. Vol. VI.) Vesting in favour of the unborn person and in the contextual facts on the basis of a subsequent adoption after about 50 years without any authorization cannot however but be termed to be a contingent event. To "vest", cannot be termed to be an executor devise. Be it noted however, that "vested" does not necessarily and always mean "vest in possession"
but includes "vest in interest" as well."
32. We are of the view that so far as the present case is concerned, the word "vesting" takes in every interest in the property including de jure possession and, not de facto but it is always open to a person to voluntarily surrender and deliver possession, under Section 10(3) of the Act.
33. Before we examine sub-section (5) and sub-section (6) of Section 10, let us examine the meaning of 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 subsection (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.
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W.P. No.6986/2018Peaceful dispossession
34. Sub-section (5) of Section 10, for the first time, speaks of "possession" which says where any land is vested in the State Government under sub-section (3) of Section 10, the competent authority may, by notice in writing, order any person, who may be in possession of it to surrender or transfer possession to the State Government or to any other person, duly authorized by the State Government.
35. If de facto possession has already passed on to the State Government by the two deeming provisions under subsection (3) to Section 10, there is no necessity of using the expression "where any land is vested" under sub- section (5) to Section 10. Surrendering or transfer of possession under subsection (3) to Section 10 can be voluntary so that the person may get the compensation as provided under Section 11 of the Act early. Once there is no voluntary surrender or delivery of possession, necessarily the State Government has to issue notice in writing under sub-section (5) to Section 10 to surrender or deliver possession. Subsection (5) of Section 10 visualizes a situation of surrendering and delivering possession, peacefully while sub-section (6) of Section 10 contemplates a situation of forceful dispossession. Forceful dispossession
36. The Act provides for forceful dispossession but only when a person refuses or fails to comply with an order under sub7 section (5) of Section 10. Sub-section (6) to Section 10 again speaks of "possession" which says, if any person refuses or fails to comply with the order made under sub- section (5), the competent authority may take possession of the vacant land to be given to the State Government and for that purpose, force - as may be necessary - can be used. Sub-section (6), therefore, contemplates a situation of a person refusing or fails to comply
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W.P. No.6986/2018with the order under sub- section (5), in the event of which the competent authority may take possession by use of force. Forcible dispossession of the land, therefore, is being resorted only in a situation which falls under sub-section (6) and not under subsection (5) to Section 10. Sub-sections (5) and (6), therefore, take care of both the situations, i.e. taking possession by giving notice that is "peaceful dispossession" and on failure to surrender or give delivery of possession under Section 10(5), than "forceful dispossession" under sub-section (6) of Section 10.
37. Requirement of giving notice under sub-sections (5) and (6) of Section 10 is mandatory. Though the word 'may' has been used therein, the word 'may' in both the sub-sections has to be understood as "shall" because a court charged with the task of enforcing the statute needs to decide the consequences that the legislature intended to follow from failure to implement the requirement. Effect of non-issue of notice under sub-section (5) or sub-section (6) of Section 10 is that it might result the land holder being dispossessed without notice, therefore, the word 'may' has to be read as 'shall'. The judgment of Hari Ram (supra) has further been relied upon by a Three Judge Bench of the Apex Court in the case of D.R. Somayajulu, Secretary, Diesel Loco Shed and South Eastern Railway House Building Cooperative Society Limited Visakhapatnam and others vs. Attili Appala Swamy and others-(2015) 2 SCC 390 and after considering the effect of the provisions of Repeal Act, restating the principle of the judgment of Hari Ram (supra) the Apex Court remitted the matter to the High Court for determination of the issue of actual physical possession on the date of commencement of the Repeal Act."
and finally observed the impact of non compliance of mandatory provision of Sections 10(5) and 10(6) of the Principal Act, which reads
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W.P. No.6986/2018as under:-
"15. In the present case the notice under Section 10(5) of the Act was issued in the name of the holder of land, who was already died on the date of its issue and the notice was not issued in the name of persons who were in possession of the land on drawing the proceedings under Sections 10(5) of the Act. As discussed presuming service of the said notice on the dead person, if possession has taken in front of witnesses ex-parte, without drawing the proceedings of Section 10(6) of the Act, the said procedure is not known under the Principal Act, and as interpreted by the judgment of Apex Court in Hari Ram (supra). Thus, in my considered opinion, it is to be held that the actual physical possession of the land bearing Khasra No.87 and 228/3 area 8536.32 square meters of village Purwa, Settlement No. 162, Patwari Halka No. 28, Tehsil and District Jabalpur has not been taken, following the procedure prescribed, by the competent authority or by Naib Tehsildar (Nazul), on the date of commencement of the Repeal Act, therefore, these proceedings shall abate. Accordingly the questions as posed for discussion are answered in favour of the petitioners against respondents."
12. It is also pertinent to mention here that against the decision of this Court, the Supreme Court has dismissed the SLP No.18278/2017 vide order dated 28.07.2017 in the case of Gayatri Devi (supra). Accordingly, it is clear that the mandatory requirement of the provision of Sections 10(5) and 10(6) of the Principal Act have not been followed in the present case, therefore, the proceeding initiated by the revenue authorities showing the possession of the land taken in the ceiling proceeding and the land vested in the State, cannot be said to be proper and the said proceeding cannot be held to be legal and in accordance with law.
13. This Court in Writ Petition No.18017/2010 parties being Smt. Meera Bai and others Vs. The State of Madhya Pradesh and others, taking note of the law laid down by the Division Bench of this Court in the case of Ram Kumar
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W.P. No.6986/2018Pathak and others Vs. State of M.P. and others (Writ Appeal No.734/2008), has also considered the scope of Section 10(5) of the Principal Act, which reads as under:-
"7. Section 10(5) of the Act provides as under:-
"10. Acquisition of vacant land in excess of ceiling limit:-
........
(5) Where any vacant land is vested in the State Government under sub-section (3), the competent authority may, by notice in writing, order any person who may be in possession of it to surrender or deliver possession thereof to the State Government or to any person duly authorized by the State Government in this behalf within thirty days of the service.
Aforesaid provision specifically provides that a notice of minimum 30 days was required to be served on the holder, but as is apparent from the perusal of order-sheet that on 29.2.1992, the notice was issued and the date of delivery of possession was fixed as 3.3.1992. It appears that only 4 days notice was issued to the holder and the order-sheet was written for taking over the possession. It is also apparent that notice under Section 10(5) of the Act was not served upon the holder. When the notice was served by affixture also does not find place in the notice. Even the person who had affixed the notice did not care to call two independent witnesses to witness affixure of notice at the house of the holder. The notice is also silent that on which date and at what time, the affixure was made. The possession was not taken from the holder. Though the Kotwar had signed the document but why two independent
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W.P. No.6986/2018witnesses were not called.
Though two names are appearing in the notice but without any particulars. Why the holder was not called for handing over the possession?, nothing is available on record. Apart from this, no proper Panchnama was drawn for taking possession of the land.
These facts show that in fact possession of the land was not taken on 3.3.1992 as stated in the reply by the respondents.
When possession of the land was not taken after issuance of due notice under Section 10(5) of the Act, in accordance with law, the proceedings shall be deemed to be pending as on the date when the Urban Land (Ceiling and Regulation) Repeal Act, 1999 came into force. When the proceedings were pending as on 22.3.1999, then in view of the Repeal Act of 1999, the proceedings shall be deemed to be abated.
8. Now the question remains whether on coming into force of Repeal Act, 1999 whether the proceedings were pending? In this case, no notice under Section 10(5) of the Act was served upon the appellants while it was the mandatory requirement of the law to serve this notice. Even for the sake of arguments, if it is assumed that the notice dated 29.2.1992 was issued to the appellants, even then 30 days' notice was the mandatory requirement of the law and until and unless a notice of 30 days could have been issued, the provision shall be deemed to be not complied with. Factually, neither notice under Section 10(5) was served upon the appellants nor any notice before handing over possession was given to the appellants. Neither
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the notice under Section 10(5) of the Act nor the warrant of possession bears the signature of the appellants. Apart from this, the possession which was stated to be taken on 3.3.1992 was not in the presence of witnesses.
Even if it is assumed that the two names which are appearing in the notice were witnesses, but no particulars of the witnesses are on record. No specific Panchnama was prepared on the spot that in the presence of these witnesses, the possession was taken. When, at what time and in whose presence, the possession was taken, letter of possession is silent. In view of non-compliance of mandatory provision as contained under Section 10(5) of the Act or the suspicious circumstances in taking possession, it is apparent that the factual possession on the spot was not taken. Apart from this, the appellants/petitioners from the very inception were claiming their possession on the land and had come forward with the plea that the appellants were dispossessed after interim order in this appeal. The fact which has been established is that no factual possession was taken from the appellants and they continued to be in possession till filing of the appeal which was filed on 24.6.2002 after coming into force of Repeal Act, 1999. In aforesaid circumstances, the appellants were in possession of the land, as on the date, on which the Repeal Act, 1999 came into force. In such circumstances, it can very well be said that the proceedings were pending on the date when the Repeal Act came into force. If the appellants remained in possession of the land and their possession was not disturbed, then they were
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entitled to retain the land and the proceedings shall be deemed to have been abated [See: Vinayak Kashinath Shilkar Vs. Deputy Collector and Competent Authority & others (2012) 4 SCC 718]."
[Emphasis Supplied]
27. The Division Bench of this Court in case of State of Madhya Pradesh Vs. Anees Fatima (Writ Appeal No.1055/2017) has laid down the same law which was further affirmed by the Apex Court by order dated 10.12.2018 passed in Diary No.42231/2018, whereby it has been held that in absence of proper notice of Sections 10(5) and 10(6) of the Act, 1976 if any possession of the land is shown to have been taken, the said possession is held illegal and in such a circumstance, Sections 3 and 4 of the Repeal Act would be applicable and proceedings initiated under the Act, 1976 declaring the land surplus, shall be declared abated.
28. In view of the discussion made above, this Court has no option but to hold the proceeding initiated under the Act, 1976 declaring the land in question surplus, as illegal and in view of the provisions of the Repeal Act, such proceeding is abated.
29. It is directed that respondent No.2, accordingly, correct the revenue record recording the name of the petitioner to be the owner of the land within a period of three months from
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the date of submitting the certified copy of this order.
30. The petition filed by the petitioner is, accordingly, allowed with the aforesaid observations.
31. In the facts and circumstances of the case, no order as to cost.
(Sanjay Dwivedi) Judge ac/-
Digitally signed by ANIL CHOUDHARYDate: 2021.04.29 16:39:04 +05'30'