Gautamprasad K Tripathi Decd. Through ... vs State Of Gujarat on 8 May, 2014

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Gujarat High Court

Gautamprasad K Tripathi Decd. Through ... vs State Of Gujarat on 8 May, 2014

C/SCA/8477/1990 JUDGMENT The present petition is filed by the petitioners who are the heirs of deceased Gautamprasad Keshavlal Tripathi for the prayers, inter alia, that the impugned judgment and order passed by the Urban Land Tribunal dated 31.5.1990 in Appeal No. 9/89 at Annexure-B and also the order passed by the Competent Authority dated 21.11.1988 at Annexure-A may be quashed and set aside on the grounds stated in the petition. It is required to be mentioned that pending the petition amendments have been made for the contention that the petitioners are entitled to claim the benefit of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 as the actual physical possession has not been taken over.

2. The facts of the case briefly summarized are that the deceased Gautamprasad Tripathi had filed Form No. 1 under sec. 6 of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as 'the ULC Act') in respect of two properties bearing Survey No. 8 of Sarkhej ( 6779 sq.mtrs. - ½ share) and Survey No. 368/9 of Wadaj (920 sq.mtrs.), totalling 7699 sq.mtrs. As it is reflected from the order of the Competent Authority at Annexure-A, while deciding the excess land of Gautamprasad, he was entitled to hold 1000 sq.mtrs. as per the law and therefore the remaining 6699 sq.mtrs were declared as excess land. The deceased Gautamprasad Tripathi also filed Appeal No. 9/89 before the Urban Land Tribunal. As it is stated in the appeal as well as subsequently in the rejoinder as well as in the petition, residential houses at the land bearing Survey No. 368/9 of Wadaj was not admeasuring 920 sq.mtrs. but it was only a plot of land of 90 sq.mtrs. in which the construction made was 64.71 sq.mtrs. Therefore, it has been contended referring to the judgment of of the Hon'ble Apex Court in the case of Smt. Meera Gupta v. State of West Bengal, reported in AIR 1992 SC 1567, the constructed property would not be included and the petitioners who are the owners as Page 2 of 24 C/SCA/8477/1990 JUDGMENT heirs of Gautamprasad would be having only 6879 sq.mtrs. of land which has been explained in detail. Further, it is stated that the appeal before the Urban Land Tribunal was filed by the petitioners who are the heirs and legal representatives of deceased Gautamprasad to the knowledge of the authority and therefore all the heirs who have been on record of the case should have been served. It is specifically contended that no notice was served, though as per law they are bound to issue notice in the name of all persons who have interest in the land and who have inherited the land. Similarly, it is contended that no notice as required under sec. 10(6) of the ULC Act before taking forcible possession has been served. Therefore, it is contended that though the case of the Government is that notice was served to deceased Gautamprasad on 18.3.1991 and the panchnama was made for taking over the possession, the fact remains that no notice under sec. 10(6) of the Act asking the petitioner to remain present for taking over possession has been served. It is therefore stated that the panchnama is only a paper panchnama and no actual physical possession has been taken over. Further, it is clearly stated as explained in detail that the two panch witnesses have also filed the affidavits stating that they are not aware about any such panchnama and they have never visited any such place. In this background it is also contended that the land in question was encroached upon by some people. It is stated that due to the flood in Sabarmati river, Fatehwadi Village and nearby areas were affected and the persons residing there were shifted to the land of the petitioner bearing Survey No. 8 of Sarkhej. However, the strength of the community of Bharwads increased with the family and they had encroached unauthorizedly and did not vacant the land, which led to filing of Regular Civil Suit No. 84/75. It is also contended that complaints were made to the authorities and police and thereafter the suit was filed before the Civil Judge (S.D.), Ahmedabad Rural at Narol, for getting possession of the said land bearing Survey No. 8 of Sarkhej, Taluka & Dist. Ahmedabad along with other co-owners.

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3. It is stated that the suit was decreed subsequently in the year 2000 by the judgment and order dated 18.2.2000 directing the defendants to hand over possession of the land to the plaintiffs. As possession was not handed over the petitioners had to file execution proceedings by way of Special Execution Application No. 32 of 2000 which came to be allowed in the year 2007 and possession was given to the petitioners as stated in the petition in detail. In the meanwhile, the defendants had also claimed tenancy rights by filing proceedings being Tenancy Case No. 610/78 and the said case was decided in favour of the petitioners. Therefore, it is contended that actual physical possession of the lands in question could not have been taken by the authority and the petitioners are entitled to the benefit of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as 'the Repeal Act').

4. The affidavit-in-reply is filed on behalf of the respondents contending, inter alia, that the petitioners are not entitled to the benefit of the Repeal Act as the possession of the land in question has been taken over by the Government and therefore the land would vest in the Government. It is contended that the notification under sec. 10(3) of the ULC Act was issued on 14.9.1990 and thereafter the notice under sec. 10(5) was issued on 12.3.1991. It has been served through RPAD which is relied upon in the reply. It is therefore contended that the possession has been taken over from the petitioners as they had failed to hand over possession in compliance with the notice under sec. 10(5) of the ULC Act. The possession was taken over by the Government by making the panchnama on 13.1.1992. Therefore, it is contended that as the possession of the land in question is taken over by the Government, the Repeal Act would not be applicable. It is therefore contended that the land which has been in possession and taken over by the Government may not be required to be handed over or returned to the petitioners and Page 4 of 24 C/SCA/8477/1990 JUDGMENT the present petition may not be entertained and allowed.

5. Heard learned counsel Shri JM Patel for the petitioners and learned AGP Shri Bharat Vyas for the respondent.

6. Learned counsel Shri Patel referred to the background of the facts and also the details with regard to the sequence of events. He submitted that the land belonged to the deceased father and houses have been constructed as it was a joint family property and therefore it would not be covered under the vacant land which has not been considered by the Tribunal. Learned counsel Shri Patel submitted referring to the details that when the constructed houses are there it cannot be termed as vacant land. In support of his submission he has referred to relied upon the judgment of the Hon'ble Apex Court in the case of Smt. Meera Gupta v. State of West Bengal, reported in AIR 1992 SC 1567. Further, learned counsel Shri Patel submitted that the possession which is claimed to have been taken in 1991-92 is unbelievable as the petitioners were not having possession which is evident from the record in the judicial proceedings itself. He submitted that the land was given for some time during the flood to some people (Bharwads) which they had encroached upon and refused to vacate. This led to complaints and thereafter proceedings by way of Regular Civil Suit No. 84/75 came to be initiated. Learned counsel Shri Patel also submitted that the said people had claimed tenancy rights by way of proceedings being Tenancy Case No. 610/78. It came to be decided by the judgment and order dated 4.1.1986. He submitted that Regular Civil Suit No. 84/75 before the Civil Judge (SD), Ahmedabad Rural, Narol, ultimately came to be decreed in the year 2000. However, as the possession was not handed over execution proceedings were initiated by way of Special Execution Application No. 32 of 2000 and the possession was handed over by making a panchnama in the court proceedings in 2007.

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7. Therefore, learned counsel Shri Patel submitted that the possession could not have been taken over from the land owners who were not having the possession due to encroachment and any claim of taking over the possession after service of the notice as required under the law is totally misconceived. Learned counsel Shri Patel submitted that when the possession is restored to the petitioners who are the owners in 2007, it cannot be claimed that the possession has been lawfully taken over from the owners after following the procedure under the ULC Act, namely, notice under sec. 10(5) and 10(6) of the Act. He also submitted that in fact notices are required to be served to all the co-owners who are having right, title, interest in the land. He submitted that notices have not been served and whatever is claimed is not service to all the co-owners which is mandatorily required.

8. In support of his submission, learned counsel Shri Patel has referred to and relied upon the Urban Land (Ceiling and Regulation) Rules, 1976 which provide for service of notice to all persons. He has also referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2013) 4 SCC 280 in the case of State of Uttar Pradesh v. Hari Ram in support of this submission. He submitted that as notices are also not served to all the co-owners, any claim for taking over possession by making a panchnama is illegal and may not be accepted. He submitted that any such panchnama by paper will not be automatically vesting the land when actual physical possession is not taken over. Learned counsel Shri Patel submitted that what is required is actual physical possession is required to be taken over and then only the Repeal Act may not be attracted. He submitted that if actual physical possession of the land in question is not taken over, the Repeal Act would be attracted and the proceedings will stand abated. He referred to the provisions of the Repeal Act and emphasised that what is required is the Page 6 of 24 C/SCA/8477/1990 JUDGMENT possession de facto, i.e., actual physical possession ought to have been taken by the Government and mere vesting of the land by operation or by the deeming fiction of the law would not be sufficient.

9. In support of his submission, he has referred to and relied upon the judgment of the Hon'ble Apex Court in the case of State of Uttar Pradesh v. Hari Ram (supra). He pointedly referred to the observations made in this judgment referring to the aspect of actual physical possession and the requirement of notice under sec. 10(5) and 10(6) of the ULC Act. He submitted that as observed the requirement of service of notice under sec. 10(5) and 10(6) is mandatory and as it is not followed in the present case the petitioners are entitled to protection of their land. Learned counsel Shri Patel submitted that when the actual physical possession is not shown to have been taken over, and when the proceedings are pending before the court and it is evident from the court record that there was encroachment and the possession came to the owners in the year 2007, the claim for actual physical possession by the Government or vesting of the land in the Government is thoroughly misconceived.

10. Learned counsel Shri Patel stated that in any case the proceedings are pending including the present petition and when the orders have been passed including in the present petition the say of the Government in the affidavit-in-reply about forcible possession having been taken over by making the panchnama is without any substance. He submitted that in any case, admittedly, the notice under sec. 10(5) and 10(6) have not been served to all the owners. Further, he submitted that even at the time of taking over forcible possession under sec. 10(6), notice is required when the owners have failed to hand over peaceful possession voluntarily in compliance with the notice under sec. 10(5). He submitted that no such notice under sec. 10(6) has been served and therefore also taking over possession is illegal. He has also referred to and relied upon the judgment Page 7 of 24 C/SCA/8477/1990 JUDGMENT of the Hon'ble Apex Court in the case of Raghbir Singh Sehrawat v. State of Haryana and ors., reported in (2012) 1 SCC 792, and also the judgment of this High Court reported in 2006(3) GLH 487 in the case of Indrajitsing P. Geel v. Competent Authority & Deputy Collector and anr. He, therefore, submitted that the present petition may be allowed.

11. Learned AGP Shri Bharat Vyas referred to the papers and also the affidavit-in-reply as well as the additional affidavit-in-reply filed on behalf of the respondent in Special Civil Application No. 8474 of 1990. He has referred to the background of the facts and submitted that the declaration/Form No. 6 under the ULC Act has been filled in by the deceased Gautamprasad Keshavlal Tripathi and his brothers have also filled the forms meaning thereby there is no joint holding. Learned AGP Shri Vyas referred to the order passed by the Competent Authority dated 21.11.1988 and also the order passed by the Urban Land Tribunal dated 31.5.1990 in Appeal No. 9/89. He referred to the order passed by the Competent Authority dated 21.11.1988 and submitted that the details of the land holding is specifically mentioned. He therefore submitted that the land was declared surplus which was carried by way of Appeal No. 9/89 before the Urban Land Tribunal. However, the Tribunal vide order dated 31.5.1990 dismissed the appeal. He submitted that as stated in the affidavit-in-reply when the notification under sec. 10(3) is published the land would vest in the Government. He pointedly referred to the notification under sec. 10(1) dated 31.12.1988 and thereafter the notification under sec. 10(3) dated 14.9.1990.

12. He therefore submitted that as stated in the affidavit-in-reply in detail after the land had vested in the Government and when the appeal was also dismissed, the possession of the said land was taken over by the Government. He submitted that the notice under sec. 10(5) was also issued to deceased Gautamprasad Keshavlal Tripathi. Therefore, he Page 8 of 24 C/SCA/8477/1990 JUDGMENT submitted that as the possession has also been taken over in or about 1992 after making the panchnama which is placed on record at Annexure R-X at p. 224 dated 13.1.92 the petitioners are not entitled for the benefit under the Repeal Act. He also referred to the panchnama and submitted that it is specifically stated that the land is open and vacant and the possession is handed over. Learned AGP Shri Vyas also referred to the affidavit-in-reply and submitted that on the basis of the possession taken by the Government the entries are made showing the land in question in the name of the Government. He therefore submitted that as the legal heirs of the deceased had participated in the process and as they were aware about the proceedings, now it is not open for the petitioners to raise any such contention relying upon the judgment of the Hon'ble Apex Court in the case of State of Uttar Pradesh v. Hari Ram (supra). He submitted that the entries referred to by the learned counsel for the petitioners are only for the purpose of the revenue and it cannot be relied upon to show the possession. He referring to the additional affidavit specifically contended that de jure ownership of the excess vacant land and de facto possession of the excess vacant land has vested in the Government which has been accepted by the heirs of deceased Gautamprasad Keshavlal Tripathi.

13. Learned AGP Shri Vyas therefore submitted that since the possession has been taken over the petitioners have no right to make any claim. He also submitted that in fact the judgment of the Hon'ble Apex Court in the case of State of U.P. v. Hari Ram (supra) will not have any application to the facts of the case as the possession has already been taken over even before the Repeal Act came into force. He strenuously submitted that the procedure as required under the Act has been followed including the notice under sec. 10(5) has also been served and after making the panchnama the possession has been taken over. He therefore submitted that the present petition may not be entertained.

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14. Learned AGP Shri Vyas submitted that the contention raised about the service to the dead person is also misconceived. He referred to the legal maximum actio personalis moritur cum persona which means that a personal action dies with the person. He referred to and relied upon the judgment of the Hon'ble Apex Court reported in 1993(2) GLH 988.

15. Learned AGP Shri Vyas referred to the documents and submitted that in fact the notification/notice under sec. 10(5) of the ULC Act was published on 12.3.1991 produced at Annexure R-VIII. It was submitted that as the petitioners did not hand over possession despite the notice under sec. 10(5), the possession was taken over by the State Government by making a panchnama on 13.1.1992, a copy of which is produced at Annexure R-X. He submitted that entries have been made regarding taking over the possession in the revenue record. He, therefore, submitted that the Repeal Act would not be attracted and the petitioners are not entitled to get the benefit of the Repeal Act. He therefore submitted that the present petition may not be entertained. He has also referred to and relied upon the judgment of this High Court in LPA No. 740 of 2002 in Special Civil Application No. 9856 of 2000 and allied matters and submitted that the Hon'ble Division Bench of the High Court had not entertained the appeal and therefore the present petition may not be entertained for any such claim.

16. In rejoinder, learned counsel Shri Patel referred to the said order passed by the Division Bench in LPA No. 740 of 2002 and submitted that the facts were totally different inasmuch as in that matter the litigation had come to an end finally in 1993 even before the Hon'ble Apex Court and therefore observations have been made. Learned counsel Shri Patel submitted that in the facts of the present case it is not in dispute that the litigation is pending including the present petition coupled with Page 10 of 24 C/SCA/8477/1990 JUDGMENT the fact that till 2007 the civil suit which was filed was pending and the execution proceedings were taken and therefore it cannot be said that the Repeal Act would not be attracted when the proceedings are pending. He again referred to the Repeal Act to support his submissions and the observations made by the Hon'ble Apex Court in the case of State of U.P. v. Hari Ram (supra) and also the subsequent judgment in the case of Gajanan Kamlya Patel v. Addl. Collector & Comp. Auth. & ors., reported in 2014 (2) SCALE 286. He also contended that the panchnama showing taking over of the possession is false and concocted and the same cannot suggest that the possession is taken over in accordance with law.

17. In view of these rival submissions, it is required to be considered whether the present petition can be entertained and allowed or not.

18. As it transpires from the record, Form No. 6 has been filled up by deceased Gautamprasad Keshavlal Tripathi with regard to different lands as stated in the order of the Competent Authority. Therefore, while deciding the issue involved in the present petition, the submissions made by the learned AGP referring to the land bearing Survey No. 362 that there were only a few hutments and it was an open and vacant land and therefore the possession has been taken is required to be considered in background of the record as well as the detailed submissions with regard to the encroachment and the Civil Suit No. 84/75 which was decreed subsequently and the possession was restored to the owners in the execution proceedings.

19. As could be seen from the record, Regular Civil Suit No. 84/75 is admittedly filed by the deceased Gautamprasad Tripathi and subsequently the heirs are brought on record as stated in the plaint itself. Similarly, it is stated in the appeal before the Tribunal also. Tenancy Case No. 610/78 was also initiated and pending. It is required to be mentioned that Page 11 of 24 C/SCA/8477/1990 JUDGMENT due to flood some of the persons were permitted to reside in the hutments on the land in question and thereafter they claimed tenancy rights which led to the aforesaid proceedings. The said proceedings were dismissed and decided in favour of the petitioners. The aforesaid Civil Suit No. 84/75 was filed for recovery of the possession and the tenancy case was also there, which suggests about the encroachment. Therefore, the submission made by the learned AGP that there were only a few hutments on a portion of the land and the rest of the land was open and vacant land and possession was taken over by making a panchnama requires a closer scrutiny. However, for deciding the present petition, the moot question which is required to be considered is whether the possession was taken over before the Repeat Act came into force and whether the procedure as required under the law has been followed or not.

20. As discussed hereinabove, referring to the background, the time was passed and on one hand it is claimed that possession is taken after following the procedure and on the other it is claimed that the owner could re-claim the possession pursuant to the execution proceedings after the decree was passed in Civil Suit No. 84/75 in the year 2007. It is in this background the submission made by learned AGP Shri Vyas that as the possession has already been taken over in 1992 before the Repeal Act came into force, the observations made by the Hon'ble Apex Court in the case of State of U.P. v. Hari Ram (supra) would not be applicable, is required to be considered.

21. Though the submissions have been made, it is evident from the record that the land in question was entangled in litigation and the owners i.e. the heirs of the deceased owner Gautamprasad Tripathi have been pursuing the civil suit and there was also a tenancy case. The possession was claimed pursuant to the decree passed in Civil Suit No. 84/75 in the Page 12 of 24 C/SCA/8477/1990 JUDGMENT year 2007. Assuming that it was only a part of the land on which there was an encroachment and the rest of the land was open and vacant land, it does not reflect from the panchnama that the possession was taken by the Competent Authority or the Government only of such portion which was open and vacant land, meaning thereby, if the issue with regard to the portion of the land was pending before the Civil Court, there was no question of taking over the possession by the Government or handing over any peaceful possession by the landowners who are the heirs of deceased Gautamprasad Tripathi. Therefore, there is no merit in the submissions made by the learned AGP that since the possession has been taken over before the Repeal Act came into force the provisions of the Repeal Act and also the observations of the Hon'ble Apex Court in the case of State of U.P. v. Hari Ram (supra) would not be applicable at all.

22. Another facet of the submission with regard to whether the procedure has been followed for taking possession at the time of taking the possession in 1992 as claimed by the Government is required to be considered. Admittedly, Shri Gautamprasad Tripathi expired on 16.2.2008. Civil Suit No. 84/75 was filed. Amendment has been made to bring the heirs on record. It is also a fact that the heirs have been pursing Appeal No. 9/89 before the Tribunal. Therefore, to the knowledge of the respondents all the heirs are required to be served. As could be seen from the record, the notice under sec. 10(3) as well as sec. 10(5) have been served only in the name of deceased Gautamprasad and not to all the heirs who are having interest in the land in question.

23. The provisions of Rule 5 of the Urban Land (Ceiling and Regulation) Rules, 1976, provide, "5. Particulars to be contained in draft statement as regards vacant lands and manner of service of the same. - (1) Every draft statement prepared under Page 13 of 24 C/SCA/8477/1990 JUDGMENT sub-section (1) of Sec. 8 shall contain the particulars specified in Form III. (2) (a) The draft statement shall be served, together with the notice referred to under sub-section (3) of Sec. 8 on -

      (i)        the holder of the vacant lands, and
      (ii)       all other persons, so far as may be known, who have, or are likely to

have, any claim to, or interest in the ownership, or possession, or both, of the vacant lands, by sending the same by registered post addressed to the person concerned - ---

In other words, notice has to be served before it could be declared as surplus land under the Act.

24. Again the provisions of the Repeal Act require a close scrutiny. The provisions of sec. 4 of the Repeal Act provide, "4. Abatement of legal proceedings -

All proceedings relating to any order made or purported to be made under the principal Act pending immediately before the commencement of this Act, before any Court, Tribunal or any authority shall abate:

Provided that this section shall not apply to the proceedings relating to Sections 11, 12, 13 and 14 of the principal Act insofar as such proceedings are relatable to the land, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority."

Thus, it clearly provides that the proceedings shall stand abated when the Repeal Act was brought into force.

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25. Therefore, the moot question is when the Repeal Act came into force,

(a) whether actual physical possession was taken over or not,

(b) whether there was litigation or proceedings pending, and

(c) whether the notice as required under secs. 10(5) and 10(6) have been served to all the heirs before taking possession?

As stated hereinabove, admittedly, notice has not been served to all the heirs. Further, notice under sec. 10(5) is also not served to all the heirs. Therefore, whether actual physical possession can be said to have been taken over legally and validly?

26. A useful reference can be made to the judgment of the Hon'ble Apex Court in the case of Balwant Narayan Bhagde v. M.D. Bhagwat, reported in (1976) 1 SCC 700, wherein the observations have been made, "We think it is enough to state that when the Government proceeds to take possession of the land acquired by it under the Land Acquisition Act, 1894, it must take actual possession of the land, since all interests in the land are sought to be acquired by it. There can be no question of taking 'symbolical' possession in the sense understood by judicial decisions under the Code of Civil Procedure. Nor would possession merely on paper be enough. What the Act contemplates as a necessary condition of vesting of the land in the Government is the taking of actual possession of the land. How such possession may be taken would depend on the nature of the land. Such possession would have to be taken as the nature of the land admits of. There can be no hard-and-fast rule laying down what act would be sufficient to constitute taking of the possession of land........."

27. It is in this background the moot question whether actual physical possession can be said to have been taken over or not is required to be considered. The submissions and the record are required to be considered in background of the provisions of the Repeal Act which has also been discussed and interpreted by the Hon'ble Apex Court in the case of State of U.P. v. Hari Ram (supra). The Hon'ble Apex Court in this judgment Page 15 of 24 C/SCA/8477/1990 JUDGMENT has referred to the aspects of the land vesting in the Government at length on the basis of the hypothesis of deeming provisions of both under the Land Acquisition Act as sell as the ULC Act. The Hon'ble Apex Court has observed, "vest"/"vested" may or may not include "transfer of possession", the meaning of which depends on the context in which it has been placed and the interpretation of various other related provisions."

28. Therefore, the submissions made by learned AGP Shri Vyas with much emphasis about vesting of the land in the Government much earlier by virtue of the provisions of the ULC Act are misconceived. It is required to be considered with the provisions of the statute providing for vesting of the land for the avowed object of the statute. However, the issue which is required to be focused in the present case is not vesting of the land, but the background and subsequent development that under the ULC Act the proceedings were initiated and are pending and the Repeal Act came into force in 1999 which has been subsequently interpreted with regard to the procedure to be followed in the judgment in the case of State of U.P. v. Hari Ram (supra) which has considered the situation prevailing during this period between the proceedings under the Act, Repeal of the Act and actual physical possession is taken over or not by the Government. Further, for the purpose of deciding whether actual physical possession has been taken or not legally and validly after following the procedure, meaning thereby whether notice under secs. 10(5) and 10(6) of the ULC Act has been served has been considered and interpreted by the Hon'ble Apex Court in the case of State of U.P. v. Hari Ram (supra), which is required to be considered.

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29. Therefore, the moot question is that there cannot be a straitjacket formula for deciding whether the actual physical possession is taken or not as it depends upon the facts and circumstances in a given case and normally the criteria which is required to be adopted is also considered by the pronouncements of the Hon'ble Apex Court. In a judgment of the Hon'ble Apex Court reported in (2011) 5 SCC 394 in the case of Banda Development Authority v. Moti Lal Agarwal, referring to the case under the Land Acquisition ion Act, what would be the criteria suggesting taking over possession has been discussed and it has also been referred in a subsequent judgment in the case of Raghbir Singh Sehrawat (supra) and Ritesh Tewari (supra).

30. Therefore, the moot question is whether the actual physical possession has been taken over in the present case. The submissions made by learned AGP Shri Vyas referring to the aspect of vesting of the land absolutely, therefore, cannot be readily accepted in light of the statutory provision. The real controversy in the present case which is required to be focused is regarding the benefit under the Repeal Act or the situation which has emerged due to the Repeal Act. There is no doubt that by operation of law as per the statutory provisions once the land is declared surplus it may vest in the Government. Therefore, though the ULC Act which has been brought as a social piece of legislation, ultimately, it has been repealed for the reasons which have been highlighted in the Repeal Act. In such a situation during the period of the operation of law and thereafter the repeal of the Act which has been subsequently interpreted in the case of State of U.P. v. Hari Ram (supra) what could be the situation depending upon the actual physical possession will have to be considered.

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31. The provisions of the Repeal Act make the position clear that so far as the proceedings which are pending will stand abated and where actual physical possession is not taken over, the proceedings will stand abated. Again, therefore, whether actual physical possession is taken over or not will depend upon the procedure which is required to be followed which is also the subject-matter in many such cases. In other words, the provisions of sec. 4 of the Repeal Act provide for abatement of legal proceedings and the proviso to sec. 4 of the Repeal Act clearly provides that insofar as such proceedings related to the land in question where the possession has been taken over would not apply and the benefit under sec. 4 of the abatement of legal proceedings would not be available. Thus, where actual physical possession has been taken over by the Government finally before the Repeal Act came into force, such persons would not get the benefit of the Repeal Act. On the other hand, where legal proceedings are pending the same will stand abated, meaning thereby, where the possession is not taken over finally and where the proceedings are still pending, it shall stand abated and the persons will have the benefit of the Repeal Act.

32. For the purposes of the present case, therefore, when the notice is not served to all the heirs including the notice under sec. 10(5) whether it could be said to be a legal and valid possession taken over by the respondent authority? As discussed hereinabove, referring to the observations of the Hon'ble Apex Court, mere paper possession will not be sufficient. What is required to be considered is whether actual physical possession is taken over or not. Again, for that purpose, whether the mandatory requirement as laid down by the Hon'ble Apex Court in the case of State of U.P. v. Hari Ram (supra) has been fulfilled is required Page 18 of 24 C/SCA/8477/1990 JUDGMENT to be considered.

33. The judgment of the Hon'ble Apex Court in the case of State of U.P. v. Hari Ram (supra) in para 31refers to voluntary surrender of the possession referring to the notice under sec. 10(3). Similarly, it refers to peaceful possession under sec. 10(5) as stated in para 34 and 35. It refers to forcible possession in para 36 referring to the notice under sec. 10(5) and 10(6) of the ULC Act. The Hon'ble Apex Court referring to the provisions of the ULC Act has made the observations and considered at length the contentions with regard to vesting of the land pursuant to the statutory provisions of the Act. Further, referring to the provisions of sec. 10(3) observations have been made and thereafter it has referred to the peaceful possession as provided under sec. 10(5) and forcible possession under sec. 10(6) of the Act. It is observed, "...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...."

"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".

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          C/SCA/8477/1990                                          JUDGMENT




Further it is observed,

"The abovementioned directives make it clear that sub-section (3) takes in only de jure possession and not de facto possession, therefore, if the landowner is not surrendering possession voluntarily under sub-section (3) of Section 10, or surrendering or delivering possession after notice, under Section 10(5) or dispossession by use of force, it cannot be said that the State Government has taken possession of the vacant land." (emphasis supplied) It has been therefore observed that "On failure to establish any of those situations, the landowner or holder can claim the benefit of Section of the 4 of the Repeal Act."

34. Further, in another judgment of the Hon'ble Apex Court reported in 2014 (2) SCALE 286 in the case of Gajanan Kamlya Patil v. Addl. Collector & Comp. Auth. & ors., the Hon'ble Apex Court has focused on the same issue with regard to the procedure as required to be followed under sec. 10(5) and 10(6) of the Act vis-a-vis the claim for the benefit under the Repeal Act by the owner. The issue was whether the possession has been handed over or not. The Hon'ble Apex Court discussing on the same issue and earlier judgment in the case of State of Uttar Pradesh v. Hari Ram (supra) ands also the judgment in the case of Ritesh Tewari (supra) has clearly observed that it is only in case of failure to comply with the notice under sec. 10(5) regarding voluntary handing over peaceful possession the recourse can be had for forceful dispossession under sub-sec. (6) of sec. 10 of the Act. It has been observed, "if the possession has not been surrendered, the possession would be taken by the application of necessary force. For taking forceful possession certain procedure has to be followed."

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C/SCA/8477/1990 JUDGMENT

35. A useful reference can also be made to the judgment of the Hon'ble Apex Court in the case of Raghbir Singh Sehrawat (supra) where observations have been made. The Hon'ble Apex Court in the case of Ritesh Tewari and anr. (supra) has made observations with regard to the exercise of discretion under Art. 226 and equitable jurisdiction while considering the tenancy laws including the ULC Act. The Hon'ble Apex Court in similar circumstances has made the observations with regard to taking over the possession de facto. It has been observed, "15. We find full force in the submissions so made by Shri Jayant Bhushan to a certain extent, and hold that all proceedings pending before any court/authority under the 1976 Act, stood abated automatically on coming of the 1999 Act into force, provided the possession of the land involved in a particular case had not been taken by the State. Such a view is in consonance with the law laid down by this Court in Pt. Madan Swaroop Shrotiya Public Charitable Trust v. State of U.P. [(2000) 6 SCC 325], Ghasitey Lal Sahu v. Competent Authority [(2004) 13 SCC 452, Mukarram Ali Khan v. State of U.P. [(2007) 11 SCC 90 and Sulochana Chandrakant Galande v. Pune Municipal Corporation [(2010) 8 SCC

467."

In this judgment the Hon'ble Apex Court has considered the implications with regard to the provisions of sec. 10 of the Act and it has been observed, "The power under Article 226 of the Constitution is discretionary and supervisory in nature....... The extraordinary power in the writ jurisdiction does not exist to set right mere errors of law which do not occasion any substantial injustice. A writ can be issued only in case of a grave miscarriage of justice or whee there has been a flagrant violation of law but also to advance justice and not to thwart it. The Constitution does not place any fetter on the power of the extraordinary jurisdiction but leaves it to the discretion of the court...."

36. Another facet of the controversy involved in this matter is the approach in such cases. It is well accepted that the laws regarding the property or the land are considered as an ex-proprietary legislation and therefore is required to be considered and construed strictly. Such laws Page 21 of 24 C/SCA/8477/1990 JUDGMENT regarding land reforms have been interpreted and considered by the Hon'ble Apex Court and it has been well accepted that such ex- proprietary legislation even if it is intended to achieve social public interest has to be construed strictly inasmuch as it deals with the right of the owner to have his property. Therefore, in order to strike a balance between the right of property of an individual citizen, though it may not be a fundamental right, but it is an important right, it has to be maintained and the collective needs of the society for which such laws are made. It is also well-settled that if the statutory authority is required to do a thing in a particular manner the same must be done in that manner as observed in a judgment in the case of Bhavnagar University v. Palitana Sugar Mill(P) Ltd., reported in (2003) 2 SCC 111.

37. Therefore, admittedly, as the notice under sec. 10(5) has not been served to all the heirs coupled with the fact that no notice under sec. 10(6) has been served at all, the claim regarding actual physical possession cannot be readily accepted. Further, it is required to be considered in background of the peculiar facts of the case where the petitioners as heirs of the original owner have claimed that it was entangled in the litigation when they have themselves filed the suit for possession for removing the encroachment and in the execution proceedings the possession was reclaimed in the 2007. Therefore, the say of the Government of taking over the possession pending such litigation cannot be accepted. Though a feeble attempt has been made by the learned AGP that for a particular Survey No 362 there were only a few hutments and the rest of the land was open and vacant and therefore the possession is taken is misconceived.

38. At this stage it is also required to be noted the manner in which the Page 22 of 24 C/SCA/8477/1990 JUDGMENT possession is claimed. Learned counsel Shri Patel has pointedly referred to the panchnama at Annexure R-X produced on record which refers to taking over the possession in presence of two panchas on 13.1.1992. However, the affidavit of both the panch witnesses are also produced at Annexure X-0 and X-1 with their signatures notarised by them and it is stated that they have never visited with any officer for taking over the possession of the lands in question and they are not aware. It is stated that when they had visited Sarkhej Gram Panchayat for some work they had signed the panchnama. This itself suggests that the panchnama is not genuine and the claim for taking over the possession after making the panchnama is therefore without any basis. In view of the aforesaid record, the say of the Government about having taken over the possession already before the Repeal Act came into force is totally misconceived and therefore cannot be accepted.

39. In any view of the matter, as stated above, since mandatory procedure and the provisions requiring service of notice under sec. 10(5) and 10(6) have not been complied with, taking over the possession cannot be termed as legal and valid. Therefore, it cannot be said that actual physical possession was taken over by the Government as claimed in the affidavit-in-reply. Therefore, the submissions made by the learned AGP about taking over the actual physical possession and that the provisions of the Repeal Act would not be attracted cannot be accepted.

40. Therefore, the prayer regarding declaration that the petitioners are entitled to the benefit under sec. 4 of the Repeal Act deserves to be granted as possession cannot be said to have been taken legally and validly. As a corollary, the prayers regarding quashing and setting aside the orders passed by the Competent Authority dated 21.11.1988 and also by the Urban Land Tribunal in Appeal No. 9/89 dated 31.5.1990 deserve to be granted and both the orders at Annexure-A and Annexure-B Page 23 of 24 C/SCA/8477/1990 JUDGMENT are hereby quashed and set aside and the respondent is restrained from disturbing the possession of the petitioners.

41. The petition accordingly stands allowed. Rule is made absolute.

(RAJESH H.SHUKLA, J.) (hn) Page 24 of 24

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