Bombay High Court
Vishram Khimji And Sons vs The State Of Maharashtra And Anr on 4 May, 2016
Bench: S.C. Dharmadhikari
JUDGMENT-WP.1696.2012.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1696 OF 2012
Vishram Khimji and Sons }
Through its Partner Devji }
Vishram Patel, Adult of }
Mumbai Indian Inhabitant, }
Residing at Gangawadi, }
Jawahar Nagar, LBS Marg, }
Ghatkopar (West), Mumbai. } Petitioner
versus
1. The State of Maharashtra }
Through Urban Development }
Dept., Mantralaya, Mumbai. }
2. Competent Authority
and Deputy Collector (ULC),
}
}
Administrative Building, }
Mumbai Suburban District, }
Bandra (East), Mumbai. } Respondents
Mr. Rahul Walvekar for the petitioner.
Ms. Geeta Shastri - AGP for the
respondents.
CORAM :- S. C. DHARMADHIKARI &
G. S. PATEL, JJ.
Reserved on :- January 28, 2016
Pronounced on :- May 4, 2016
JUDGMENT:- (Per S. C. Dharmadhikari, J.)
PREFACE
1. This writ petition is one more in a series of matters where
the jurisdiction of this Court under Articles 226 and 227 of the
Constitution of India is invoked not by rightful owners but by
builders and developers to reclaim vacant lands in excess of
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ceiling limits, when these have already vested in the State. The
surplus land holders and owners of these lands know all too well
that their fate is sealed, for they stand divested of their right, title
and interest in these lands by due process of law. However, they
are put up by builders and developers with ulterior motives to file
such petitions by relying on the repeal of the Urban Land (Ceiling
and Regulation) Act, 1976 (Principal Act) in the State of
Maharashtra with effect from 29th November, 2007. Though
physical possession of these lands is with the State, and this was
not challenged by the owners and surplus vacant land holders at
the relevant time, they raise such challenges only now and it
appears to us that these litigations are clearly financed by
builders and developers. These builders and developers generally
have no locus or right in law to raise a challenge; they do so
before us on the strength of irrevocable powers of attorney from
the erstwhile or so-called 'owners'. The builders and developers
put forward pleas which their principals have never raised. Such
litigants are encouraged sometimes by inaction of the State
officials in maintaining and preserving proper records, and
sometimes the State machinery deliberately assists them by
keeping back crucial and important documents.
2. Whatever may be the cause, this court's precious time is
wasted in not only scrutinising the original records, but in
considering the prolonged arguments. All this because even one
square foot of land in a city like Mumbai commands a huge
market price. In case after case, vacant lands that have not been
fenced or protected are the subject matter of such litigations.
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Since the State is seemingly unaware of the extent of the land it
owns, there is a tendency to file these cases and to take a chance
with this Court.
3. The present case is one more instance of builders and
developers coming to court after the surplus land holders and
owners have accepted the correctness and validity of the State's
action. As Judges we hardly have any choice, particularly when
such petitions are admitted.
ig B. FACTUAL
4. By this petition under Article 226 of the Constitution of
India, the petitioner is challenging the notifications issued under
section 10(3) dated 15th December, 2005 and section 10(5) dated
22nd June, 2006 in respect of his land being CTS Nos. 53 and 53/2
to 9 situate at village Hariyali, Taluka Kurla, Mumbai Suburban
District.
5. The petitioner is claiming a declaration that the above
proceedings were under the repealed Act, namely, Urban Land
(Ceiling and Regulation) Act, 1976 (for short referred to as "the
ULC Act/Principal Act "). The foundation of Mr. Walvekar's
arguments for the Petitioner is that in view of the adoption of the
Urban Land (Ceiling and Regulation) Repeal Act, 1999 (for short
referred to as "the Repeal Act") in the State of Maharashtra,
with effect from 29th November 2007, these lands should revert
to the petitioner and be restored accordingly.
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6. It is undisputed that the petitioner claims ownership of this
vacant land in excess of the ceiling limit, admeasuring 497.7
square meters. It is the claim of the petitioner that he owns this
land and he had constructed one building on the plot adjacent to
the said land and that there was a co-operative housing society
formed of the flat owners of this building known as Mohatta
Nagar Co-operative Housing Society Limited. The said society
erroneously claimed ownership of the remaining plot. Hence, the
petitioner filed a suit in the City Civil Court at Mumbai, being Suit
No. 3204 of 1970. That suit was decreed in favour of the
petitioner on 29th April, 1988. The society, being aggrieved by the
judgment and decree, preferred a first appeal in this court being
First Appeal No. 1018 of 1989. That appeal was admitted and the
execution and enforcement of the decree was stayed.
7. In the meanwhile, the 2nd respondent, the competent
authority under the Principal Act, initiated proceedings under the
said Act and held that the land in possession and ownership of the
petitioner is vacant land in excess of the ceiling limits. An order
under section 8(4) of the ULC Act was passed holding that out of
the total land admeasuring 1997.7 square meters, the portion to
the extent of 497.7 square meters is surplus or in excess of the
ceiling limits.
8. The petitioner made a representation/application for
exempting this land in excess of the ceiling limits by invoking the
powers of the State Government under section 20 of the Principal
Act. An order of exemption was passed on 20 th March 1989 with
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certain terms and conditions, one of which was to commence
construction of a building within one year and to complete it
within three years thereafter. The construction could not
commence on account of the pendency of legal proceedings in this
court. Since the construction could not commence, notice was
issued by the competent authority calling upon the petitioner to
commence and complete the work, failing which the exemption
would be revoked.
9. The petitioner replied to this notice on 18 th June 1990. The
petitioner then states that on 17 th September 1993, the appeal of
the co-operative housing society, filed in this court, was
dismissed. A Letters Patent appeal was preferred being Letters
Patent Appeal No. 23 of 1994. That was allowed and a remand
order was passed on 30th November 2001. After the order of
remand, the Trial Court once again heard the suit and decreed it
on 4th February 2002. The society once again preferred an appeal
in this court being Appeal No. 555 of 2002, which was admitted
on 15th April 2002. The pendency of the proceedings under the
ULC Act was, unfortunately, not brought to the notice of this
court at the time of admission of this appeal. Hence, the
competent authority once again called upon the petitioner to
commence construction, else the exemption would be withdrawn.
The competent authority was informed by a reply to this notice
about the pending legal proceedings. Still, the exemption order
came to be withdrawn on 15th March 2005. Upon the withdrawal
of exemption, further proceedings under the Principal Act were
initiated and that is how notifications under section 10(1) and
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section 10(3) came to be published in the Government gazette.
Following these, a notice was issued under section 10(5) and the
petitioner was called upon to hand over possession of the surplus
vacant land. After issuance of the notice under section 10(5), the
petitioner approached this court by a writ petition being Writ
Petition No. 2570 of 2006, which was admitted and an interim
order was passed. Later, on 21 st November 2011, that writ
petition was allowed to be withdrawn with liberty to file a fresh
writ petition. Yet, in pursuance of the notice under section 10(5)
of the Principal Act dated 22nd June 2006, the competent
authority claims to have taken possession on 20th July 2006.
C. RIVAL SUBMISSIONS
10. Mr. Walvekar submits that this is a "paper possession".
Such possession is not saved by section 3(1)(a) of the Repeal Act.
He, therefore, submits that in terms of the law laid down by this
court in the case of M/s. Johnson and Johnson and Anr. vs. State
of Maharashtra and Anr.1 , decided on 9th November 2011, the
relief claimed in the petition be granted.
11. Mr. Walvekar fairly invites our attention to the two
judgments of the Hon'ble Supreme Court of India in the case of
State of Uttar Pradesh vs. Hari Ram 2 and the later judgment in
the case of State of Assam vs. Bhaskar Jyoti Sharma and Ors.3 .
2 AIR 2013 SC 1793
3 (2015) 5 SCC 32 1
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12. On the other hand, Ms. Shastri, learned AGP appearing for
the State would submit that the affidavit in reply that has been
filed on 23rd October 2015, and to which there is as yet no
Rejoinder, indicates that all steps taken were lawful, and that the
Repeal Act does not apply. She would, therefore, submit that the
petition be dismissed.
D. FINDINGS
13. Having heard both sides and perusing the petition, its
annexures and the affidavit in reply, we find that there is no
substance in any of the contentions of Mr. Walvekar. In the
affidavit in reply, it has been stated that the notice under section
10(5) was issued on 22nd June 2006, calling upon the declarant to
hand over possession of the land admeasuring 497.7 square
meters being in excess of the ceiling limits. On 15 th July 2006, the
petitioner addressed a letter acknowledging receipt of this notice
and stated that some legal proceedings are pending in this court.
Thus, a notice under section 10(5) giving 30 days' clear time was
issued, duly served and in pursuance thereof, possession was
taken on 20th July 2006. The documents that are annexed clearly
evidence the taking of possession.
14. Even the prior steps in pursuance of the Principal Act would
denote that the land is admittedly in excess of the ceiling limits.
The panchanama indicates that none was present at site to hand
over possession. The possession receipt also demonstrates as to
how maintenance surveyor Mr. S. D. Pawar visited the site and
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took possession of the same on 20 th July 2006 at 11.30 a.m. It is
evident that there was no impediment in proceeding and taking
possession of this land and which was admittedly in excess of the
ceiling limits and covered by an exemption order. The terms and
conditions of the exemption order were not complied. The
exemption order, thus, came to be cancelled. The petitioner's
claim in the present petition that he had no knowledge of the
possession being taken prior to the Repeal Act coming into force
is baseless. The notifications under section 10(1) and 10(3) of the
Principal Act were published in the official gazette. The petitioner
had complete knowledge of these.
15. Secondly, Mr. Walvekar's contentions overlook the fact that
there was a serious dispute with regard to the petitioner's claim
of ownership. On the petitioner's own showing, the land was
claimed by the Mohatta Nagar Co-operative Housing Society
Limited. There was a building constructed on the plot adjacent to
this land, according to the petitioner and therefore, Mohatta
Nagar Co-operative Housing Society had no right, title or interest
in the land not covered by their building or appurtenant thereto.
Thus, the title to the vacant land in excess of the ceiling limits
was an issue pending between the petitioner and the society. The
pendency thereof reveals that the petitioner cannot assert his
absolute title as an owner in the vacant land, which is in excess of
the ceiling limits. At the instance of such a petitioner, who is
facing continuous legal proceedings and right up to this court so
also when the second round is pending, we cannot entertain the
present petition.
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16. Even otherwise, we have already dealt with such an issue
and controversy recently. In a Division Bench judgment delivered
in Writ Petition No. 1468 of 2009 decided on 22 nd April 2016, we
considered somewhat identical questions, and while
distinguishing thhe judgments in the case of Hari Ram (supra)
and in the case of Johnson and Johnson (supra), we held as
under:-
"175) On the aspect of applicability of section
3(1)(a) of the Repeal Act, Mr. Chidambaram's
reliance on the judgment of this court and that of the
Hon'ble Supreme Court of India is entirely misplaced.
176) In the case of Bank of Baroda Employees
Arunoday Co-operative Housing Society Ltd. vs.
State of Maharashtra4 decided on 21st November,
2011, the State and the competent authority claimed
that possession of the land declared as surplus
vacant land was taken on 14th November, 2006,
whereas, the petitioner asserted otherwise. The facts
have been noted in para 2 of the order of the Division
Bench and it found that the State/competent
authority took possession on the above date
pursuant to a notification under section 10(5) of the
Principal Act dated 30th June, 2006. The Division
Bench noted the case of the petitioner that as on 30 th
October, 2006, when the notice under section 10(5)
was issued, it was the petitioner society who was in
possession of the land and the building and therefore,
the act of the State in taking possession without
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issuing notice to it is illegal. Then, they questioned
the contents of the possession receipt and which
states that the person to whom notice was issued is
not willing to handover possession. It is in these
circumstances that the Division Bench held that the
provisions of the Repeal Act would come into play,
meaning thereby, the proceedings under the
Principal Act lapse. It is in the above factual
background and peculiar to the petitioner's case that
all findings in para 5 have been rendered. We do not
see, therefore, any assistance can be derived from
the said observations, findings and conclusions.
Notice under section 10(5) may have been held to be
mandatory. The notice also must set out the period
and in terms of the sub section so as to enable the
person in possession to surrender or deliver
possession of the vacant land vesting in the State to
the State Government or to any person duly
authorised by the State. He should be, therefore, put
to notice in writing and which should contain the
direction to surrender or deliver possession within
30 days of the service of the notice. We do not see as
to how this principle and which also has been laid
down in the judgment of this court in the case of M/s.
Johnson and Johnson Ltd. and Anr. vs. State of
Maharashtra and Anr.5 decided on 9th November,
2011 would have any application to the facts of this
case.
177) Then comes the reliance on the judgment in
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the case of State of Uttar Pradesh vs. Hari Ram 6 . In
this case, one should not forget that respondent Hari
Ram was holding excess land admeasuring
52,513.30 square meters. An order under section
8(4) of the Principal Act was passed by the
competent authority on 29th June, 1981. The
notification under section 10(1) of that Act was
issued on 12th June, 1982 and published in the
Government gazette. The notification under section
10(3) was published on 22nd November, 1997. On
10th June, 1999, the surplus vacant land stood
vested in the State in terms of the entry in the
Revenue records. On 19th June, 1999, a notice under
section 10(5) directing Hari Ram to handover
possession of the land declared surplus was issued.
Aggrieved by that, Hari Ram preferred Appeal No. 29
of 1999 before the District Judge, Varanasi under
section 33 of the Principal Act, but what he impugned
in that appeal was important. He challenged the
order under section 8(4) of the Act and urged that
before that order was passed, no notice, as
contemplated under section 8(3) of that Act, was
served on him. That appeal was allowed and the
order dated 29th June, 1981 under section 8(4) of
the Act was set aside on 14th December, 1999.
Aggrieved by that order, the State of Uttar Pradesh
filed a writ petition in the High Court of Allahabad
and the High Court, after elaborately considering
various contentions, took a view that for taking
6 (2013) 4 SCC 280
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physical possession of the land, proceedings under
section 10(5) have to be followed. On facts also the
Division Bench found no reason to interfere with the
order of the District Judge.. The State's writ petition
was dismissed. That is how the State approached the
Hon'ble Supreme Court against the decision of the
High Court of Allahabad in Hari Ram's case and
following Hari Ram in other cases. The arguments
have been noted in paras 6 and 7 and we must not
forget that the Hon'ble Supreme Court was concerned
with the primary submission that under the
Principal Act, though there is a vesting of the land in
terms of sub-section (3) of section 10, upon
publication of the notification, what one finds is that
by virtue of sub-sections (4) and (5) of section 10 so
also sub-section (6) thereof, after such vesting, the
physical possession has to be taken and obtained by
recourse to these provisions. It is in examining the
scope of sub-sections (3), (4) as well as sub-sections
(5) and (6) of section 10 that all the further
conclusions of the Hon'ble Supreme Court are
rendered. It is then apparent that by vesting alone, it
would not be permissible to hold that possession
follows. Possession would follow only upon recourse
to these sub sections and that is how all the
paragraphs, namely paragraphs 33 to 37 would have
to be seen. The requirement of notice is only under
sub-sections (5) and (6) and that is held to be
mandatory.
178) We do not see how our view in the present
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case, is in any way contrary to Hari Ram's decision
(supra). We have not held in the present case that
notice need not be issued. The controversy before us
was whether notice issued was served on the co-
owners. On facts, we have found that not only such a
notice was served, but copy thereof was pasted on
site. That was after it was endorsed in the register
that the noticees were not found at the stated
address. That is how the competent authority
directed the City Survey Officer to cause a notice to
be displayed at site. It was accordingly displayed.
Once we find that the notice was issued, though that
notice stated that the possession would be taken on
9th March, 2007, the record indicates that it was not
taken on that date, meaning thereby within 30 days,
but on 28th March, 2007. Therefore, it is not as if
before the 30 days period expired from 27th
February, 2007 that the possession was taken.
Secondly, we find that the distinguishing feature in
the present case is that the arguments do not rest on
the issuance of notice and its service alone. The
legality and validity of the notice and the act of
taking possession before 30 days' period is also
raised. It is therefore clear that diverse pleas are set
out to claim benefit of the Repeal Act. However, that
cannot be extended to the petitioners in the present
case. We are of the firm opinion view that no
assistance can, therefore, be derived from the
principles laid down in the case of Hari Ram (supra)
in the present facts and circumstances. The legal
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principles are indeed binding on us, but on facts their
application is a matter with which we are really
concerned. More so, when the petitioners also
challenge the correctness and validity of the
possession receipt, panchanama etc. Once there is a
record of the physical possession having been taken
well before 29th November, 2007 (reckoned as the
date of coming into force of the Repeal Act in
Maharashtra), then, we do not see how we can apply
the Repeal Act to the present facts.
179) There is one more reason because we have
already found that the petitioners alone do not claim
to be in physical possession, but state that the
physical possession of the land would have to be
obtained from the Court Receiver. They claim that
the property is custodia legis and hence notice to
receiver ought to be issued. It is only when notice is
issued to him or when the court's approval is
obtained that the receiver can be dispossessed and
not otherwise. Therefore, it is doubtful as to how the
judgment in the case of Hari Ram (supra) and that in
the case of Vinayak Kashinath Shilkar vs. Deputy
Collector and Competent Authority and Ors. 7 can
have any application.
180) We cannot also take assistance as desired
by Mr.Chidambaram from other judgments and
which are essentially on the point of an order being
non compliant with the principles of natural justice
7 (2012) 4 SCC 718
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and therefore nullity. On facts, we do not see any
application of this principle to the present case.
181) We are also supported in our views
and conclusions by the reliance placed by Mr.
Samdani on the judgment of the Hon'ble Supreme
Court of India in the case of State of Assam vs.
Bhaskar Jyoti Sarma and Ors.8 . This judgment
distinguishes Hari Ram's case (supra) and we
reproduce the following paragraphs of this
judgment:-
"6. We have heard the learned counsel for the parties for
a considerable length. The Urban Land (Ceiling and
Regulation) Act, 1999 repealed the principal Act w.e.f. The
date the State adopted the Repeal Act. In terms of a
resolution passed under clause (2) Article 252 of the
Constitution, the Repeal Act was adopted by the State of
Assam w.e.f. 6-8-2003. We may at this stage usefully
extract Sections 2 and 3 of the Repeal Act which have a
direct bearing on the questions that arise for our
determination:
2. Repeal of Act 33 of 1976 . - The Urban Land
(Ceiling and Regulation) Act, 1976 (hereinafter
referred to as the Principal Act), is hereby repealed.
3. Saving. - (1) The repeal of the principal Act
shall not affect -
(a) the vesting of any vacant land under sub-
section (3) of Section 10, 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;
(b) the validity of any order granting
exemption under sub-section (1) of Section 20 or any
action taken thereunder, notwithstanding any
judgment of any court to the contrary;
(c) any payment made to the State
Government as a condition for granting exemption
under sub-section (1) of section 20.
(2) Where -
(a) any land is deemed to have vested in the
State Government under sub-section (3) of Section 10
8 (2015) 5 SCC 321
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of the principal Act but possession of which has not
been taken over by the State Government or any
person duly authorised by the State Government in
this behalf or by the competent authority; and
(b) any amount has been paid by the State
Government with respect to such land.
Then, such land shall not be restored unless the
amount paid, if any, has been refunded to the State
Government."
7. A bare reading of Section 3 (supra) makes it clear that
repeal of the principal Act does not affect the vesting of
any vacant land under sub-section (3) of Section 10,
possession whereof has been taken over by the State
Government or any person duly authorised by the State
Government in that behalf or by the competent authority.
In the case at hand, the appellant claims to have taken
over the possession of the surplus land on 7-12-1991. That
claim is made entirely on the basis of a certificate of
handing over/taking over of possession, relevant portion
whereof reads as under:
"Certificate of handing over/taking over possession
Today on this 7th December, 1991, we took over
possession of 70.32 ares of acquired land as
scheduled below vide order of the Deputy
Commissioner, Kamrup's ULC Case No. 343 dated 2-
3-1991 and as per Assam Gazette Notification dated
1-1-1987 in Case No. ULC343/76.
Schedule of land
* * *
Received possession
(Taken over possession unilaterally)
sd/-
Illegible Given
possession
Designation SK (G)
Designation
Dated 7-12-1991 Dated 7-12-1991
Countersigned
sd/-
Illegible
Circle Officer
Guwahati Revenue Circle"
8. Relying upon the above document it was strenuously
argued on behalf of the appellant that actual physical
possession was taken over from the erstwhile landowner
as early as in December 1991, no matter relevant official
record does not bear testimony to any notice having been
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issued to the landowners in terms of Section 10 sub-section
(5) of the Act. It was argued that so long as actual physical
possession had been taken over by the competent
authority title to the land so taken over stood vested
absolutely in the State Government under Section 10(3)
and could not be claimed back no matter the principal Act
stood repealed after such vesting had taken place. In
support of the contention that actual physical possession
had been taken over by the competent authority, the
appellant places heavy reliance upon the fact that
challenge to the proceedings under the Act mounted in
Writ Petition No. 2568 of 1992 by the purchasers of a part
of the disputed land had failed right up to this Court and
the allotment of a substantial part of the surplus land in
favour of the 8 families affirmed. This, according to the
appellant, proves that possession of the surplus land had
indeed been taken over from the erstwhile owner in terms
of proceedings held on 7-12-1991.
9. It was also contended that Bhabadeb Sarma, the
erstwhile owner, had remained aloof even when he was a
party to the writ petition filed by the purchasers who had
questioned the validity of the order passed by the
competent authority including the allotment of the surplus
land in favour of third parties. It was argued that the
Repeal Act would have no effect whatsoever even when the
taking of possession was without notice to the erstwhile
owner especially when the owner had failed to question
any such takeover at the appropriate stage in appropriate
proceedings. The challenge mounted by the legal heirs of
the deceased erstwhile owner 13 years later was clearly
untenable and an afterthought. Failure of the landowner
to seek redressal against non-compliance with the
statutory requirement of a notice before possession is
taken would constitute abandonment of the right of the
owner under Section 10(5) which cannot be resuscitated
after lapse of such a long period only to take advantage of
the Repeal Act. The question whether actual physical
possession of the disputed land had been taken over is in
any case a seriously disputed question of fact which could
not be adjudicated or determined by the High Court in its
writ jurisdiction.
10. .....
11. Section 3 of the Repeal Act postulates that vesting of
any vacant land under sub-section (3) of Section 10 is
subject to the condition that possession thereof has been
taken over by the competent authority or by the State
Government or any person duly authorised by the State
Government. The expression "possession" used in Section
3 (supra) has been interpreted to mean "actual physical
possession" of the surplus land and not just possession that
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goes with the vesting of excess land in terms of Section
10(3) of the Act.
12. The question, however, is whether actual physical
possession of the land in dispute has been taken over in the
case at hand by the competent authority or by the State
Government or an officer authorised in that behalf by the
State Government.
13. The case of the appellant is that actual physical
possession of the land was taken over on 7-12-1991 no
matter unilaterally and without notice to the erstwhile
landowner. That assertion is stoutly denied by the
respondents giving rise to seriously disputed question of
fact which may not be amenable to a satisfactory
determination by the High Court in exercise of its writ
jurisdiction. But assuming that any such determination is
possible even in proceedings under Article 226 of the
constitution, what needs examination is whether the
failure of the government or the authorised officer or the
competent authority to issue a notice to the landowners in
terms of Section 10(5) would by itself mean that such
dispossession is no dispossession in the eye of the law and
hence insufficient to attract Section 3 of the Repeal Act.
Our answer to that question is in the negative.
14. We say so because in the ordinary course actual
physical possession can be taken from the person in
occupation only after notice under Section 10(5) is issued
to him to surrender such possession to the State
Government, or the authorised officer or the competent
authority. There is enough good sense in that procedure
inasmuch as the need for using force to dispossess a person
in possession should ordinarily arise only if the person
concerned refuses to cooperate and surrender or deliver
possession of the lands in question. That is the rationale
behind Sections 10(5) and 10(6) of the Act. But what
would be the position if for any reason the competent
authority or the government or the authorised officer
resorts to forcible dispossession of the erstwhile owner
even without exploring the possibility of a voluntary
surrender or delivery of such possession on demand?
Could such use of force vitiate the dispossession itself or
would it only amount to an irregularity that would give rise
to a cause of action for the aggrieved owner or the person
in possession to seek restoration only to be dispossessed
again after issuing a notice to him? It is this aspect that
has to an extent bothered us.
15. The High Court has held that the alleged dispossession
was not preceded by any notice under Section 10(5) of the
Act. Assuming that to be the case all that it would mean is
that on 7-12-1991 when the erstwhile owner was
dispossessed from the land in question, he could have
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JUDGMENT-WP.1696.2012.DOC
made a grievance based on Section 10(5) and even sought
restoration of possession to him no matter he would upon
such restoration once again be liable to be evicted under
Sections 10(5) and 10(6) of the Act upon his failure to
deliver or surrender such possession. In reality therefore
unless there was something that was inherently wrong so
as to affect the very process of taking over such as the
identity of the land or the boundaries thereof or any other
circumstance of a similar nature going to the root of the
matter hence requiring an adjudication, a person who had
lost his land by reason of the same being declared surplus
under Section 10(3) would not consider it worthwhile to
agitate the violation of Section 10(5) for he can well
understand that even when the Court may uphold his
contention that the procedure ought to be followed as
prescribed, it may still be-not enough for him to retain the
land for the authorities could the very next day dispossess
him from the same by simply serving a notice under
Section 10(5). It would, in that view, be an academic
exercise for any owner or person in possession to find fault
with his dispossession on the ground that no notice under
Section 10(5) had been served upon him.
16. The issue can be viewed from another angle also.
Assuming that a person in possession could make a
grievance, no matter without much gain in the ultimate
analysis, the question is whether such grievance could be
made long after the alleged violation of Section 10(5). If
actual physical possession was taken over from the
erstwhile landowner on 7-12-1991 as is alleged in the
present case any grievance based on Section 10(5) ought
to have been made within a reasonable time of such
dispossession. If the owner did not do so, forcible taking
over of possession would acquire legitimacy by sheer lapse
of time. In any such situation the owner or the person in
possession must be deemed to have waived his right under
Section 10(5) of the Act. Any other view would, in our
opinion, give a licence to a litigant to make a grievance not
because he has suffered any real prejudice that needs to be
redressed but only because the fortuitous circumstance of
a Repeal Act tempted him to raise the issue regarding his
dispossession being in violation of the prescribed
procedure.
17. Reliance was placed by the respondents upon the
decision of this Court in Hari Ram case ((2013) 4 SCC
280). That decision does not, in our view, lend much
assistance to the respondents. We say so, because this
Court was in Hari Ram case considering whether the word
"may" appearing in Section 10(5) gave to the competent
authority the discretion to issue or not to issue a notice
before taking physical possession of the land in question
under Section 10(6). The question whether breach of
J.V.SALUNKE,PA
JUDGMENT-WP.1696.2012.DOC
Section 10(5) and possible dispossession without notice
would vitiate the act of dispossession itself or render it non
est in the eye of the law did not fall for consideration in
that case. In our opinion, what Section 10(5) prescribes is
an ordinary and logical course of action that ought to be
followed before the authorities decided to use force to
dispossess the occupant under Section 10(6). In the case
at hand if the appellant's version regarding dispossession
of the erstwhile owner in December 1991 is correct, the
fact that such dispossession was without a notice under
Section 10(5) will be of no consequence and would not
vitiate or obliterate the act of taking possession for the
purposes of Section 3 of the Repeal Act. That is because
Bhabadeb Sarma, erstwhile owner, had not made any
grievance based on breach of Section 10(5) at any stage
during his lifetime implying thereby that he had waived his
right to do so.
18. .....
19. In support of the contention that the respondents are
even today in actual physical possession of the land in
question reliance is placed upon certain electricity bills
and bills paid for the telephone connection that stood in
the name of one Mr Sanatan Baishya. It was contended
that said Mr Sanatan Baishya was none other than the
caretaker of the property of the respondents. There is,
however, nothing on record to substantiate that assertion.
The telephone bills and electricity bills also relate to the
period from 2001 onwards only. There is nothing on
record before us nor was anything placed before the High
Court to suggest that between 7-12-1991 till the date the
land in question was allowed to GMDA in December 2003
the owner or his legal heirs after his demise had continued
to be in possession. All that we have is rival claims of the
parties based on affidavits in support thereof. We
repeatedly asked the learned counsel for the parties
whether they can, upon remand on the analogy of the
decision in Gyanaba Dilavarsinh Jadega (2013) 11 SCC
486, adduce any documentary evidence that would enable
the High Court to record a finding in regard to actual
possession. They were unable to point out or refer to any
such evidence. That being so the question whether actual
physical possession was taken over remains a seriously
disputed question of fact which is not amenable to a
satisfactory determination by the High Court in
proceedings under Article 226 of the constitution no
matter the High Court may in its discretion in certain
situations enter upon such determination. Remand to the
High Court to have a finding on the question of
dispossession, therefore, does not appear to us to be a
viable solution."
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JUDGMENT-WP.1696.2012.DOC
182) We are of the opinion that the controversy before us
stands fully covered by this judgment and it binds us."
17. We do not find any prejudice to the petitioner being
established and proved. The petitioner has whenever convenient
maintained silence about the legal proceedings and whenever
faced with a rival claim raised the plea about it to resist the action
under the principal Act. This aspect besides a belated challenge
and no real prejudice are enough reasons to deny relief to the
petitioner in our extraordinary, equitable and discretionary
jurisdiction under Article 226 of the Constitution of India. As a
result of the above discussion, the writ petition is dismissed.
There would be no order as to costs.
18. The original record shall be returned to the concerned
Department of State through the Government Pleader.
(G.S.PATEL, J.) (S.C.DHARMADHIKARI, J.)
J.V.SALUNKE,PA
