Madhya Pradesh High Court
Jawahar Lal Jaiswal vs The State Of Madhya Pradesh on 6 December, 2021
Author: Sanjay Dwivedi
1
THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.13053/2012
Jawahar Lal Jaiswal and others
Versus
State of M.P. & others
Date of Order 06/12/2021
Bench Constituted Single Bench
Order delivered by Hon'ble Justice Sanjay
Dwivedi
Whether approved for
reporting
Name of counsels for
reporting
Name of counsels for For petitioner : Shri Kapil
parties Duggal, Advocate
For Respondents/State:Shri
Anvesh Shrivastava, Panel
Lawyer
For Respondent No.5: Shri
Sourabh Malvi, Advocate
Law laid down
Significant Para Nos.
Reserved on:13/09/2021
Delivered on:06/12/2021
(O R D E R)
06/12/2021
By means of the present writ petition filed under
Article 226 of the Constitution of India, the
petitioners have prayed for following relief(s):-
(i) To call for the records for kind
perusal of this Hon'ble Court.
(ii) To quash the impugned orders
in Annexures-P/10 and P/11 by
issuance of an appropriate writ,
order and/or direction.
(iii) To restrain the respondents
from dispossessing the petitioners
from their agricultural lands of
khasra no.22,23 and 37 of village
Maharajpur, Tehsil Panagar,
District Jabalpur.
(iv) To command the respondents
to continue the petitioners in
possession of the land of khasra
nos.22,30 and 37 of village
Maharajpur, Tehsil Panagar,
District Jabalpur, as the
proceedings under the Urban Land
Appeal Act, 1991 are abated with
all consequential benefits by
issuance of an appropriate writ,
order and/or direction.
(v) To restrain the respondents
from allotting the land of khasra
no.22,30 and 37 of village
Maharajpur, Tehsil Panagar, to the
respondent no.5 for JLNRSNM by
issuance of an appropriate writ
order and/or direction.
(vi) Any other reliefs which this
Hon'ble Court may deem just and
proper in the circumstances of the
case be also granted in favour of
the petitioners along with cost of
this petition.
(2) Sans details, the facts as delineated in the writ
petition, in nutshell are that; Late Heeralal Jaiswal,
the owner of agricultural land of Khasra Nos.22, 30
and 37 measuring 4.760, 0.237 and 1.067 hectare
respectively situated at village Maharajpur, Tehsil
Panagar District Jabalpur was expired on 28/12/1998.
After the death of Heeralal the present petitioners
became owners thereof, and their names were
recorded in the revenue record as such.
(3) Late Heeralal Jaiswal in his life time submitted
the return of agricultural land, as required under the
provisions of Urban Land (Ceiling and Regulation)
Act, 1976 (for brevity 'Act 1976'). The competent
authority i.e respondent no.2 vide order dated
10/11/1982 declared the land measuring 69,643.56
square meter surplus out of 71,143.56 square meter
i.e 7.115 hectares, leaving 1.500 square meter for one
unit under the Act and the draft statement was also
issued against it. The respondent no.2 also directed
Tehsildar Nazool, Jabalpur to take possession of the
land, and it is shown that the possession was
obtained on 01/11/1990 by the Tehsildar.
(4) The petitioners, thereafter, filed the Writ
Petition, namely W.P.No.3764/2005, in which it is
claimed that in view of the provisions of Urban Land
(Ceiling and Regulation) Repeal Act, 1999 (for
brevity 'Act 1999), since the possession of the land
has not been taken from the petitioners and they are
still in possession of the land, therefore, the
proceedings initiated under the provisions of 'Act
1976' shall be declared abated.
(5) The Writ Court vide order dated 20/06/2005
(Annexure-P-5) disposed of the petition, directing the
competent authority to inquire whether possession of
the lands belonging to the petitioners had been taken
over as per the procedure engrafted under Section 10
of the Parent Act. It was further directed that the
aforesaid exercise shall be concluded by the
competent authority within a period of four months.
(6) Despite the aforesaid order, when no action was
taken by the competent authority, the petitioners
moved an application under Section 4 of the Urban
Land (Ceiling And Regulation) Repeal Act, 1999,
before the competent authority to inquire about the
fact whether possession is still with the petitioners or
not.
(7) A notice was issued to the petitioners that for
implementation of Jawahar Lal Nehru Rashtriya
Shahri Navinikaran Mission (JLNRSNM) some lands
are required by the State and proposal has also been
moved to acquire the lands of khasra no. 22, 30 and
37, which is of the petitioners.
(8) As soon as the petitioners came to know
about the notice, they submitted their objection
before the Tahsildar, on 20/05/2011 against proposed
inclusion of their lands for JLNRSNM, but the same
has not been decided.
(9) The petitioners then filed a petition before
the High Court, which was registered as
W.P.No.14276/2011 and disposed of vide order dated
27/08/2011, in which the High Court directed the
Tahsildar to consider the objection raised by the
petitioners after giving them an opportunity of
hearing, and also directed the parties to maintain
status quo with regard to possession of the land, till
the final order is passed.
(10) Despite serving copy of the aforesaid order
of this Court, nothing was done by the authorities,
and the Collector passed the order on 19/12/2011
(Annexure-P-10), allotting the land to the
Corporation i.e respondent no.5, for the purpose of
implementing the scheme i.e JLNRSNM.
(11) The Additional Collector, Jabalpur in
compliance of the order passed by this Court on
20/06/2005 in W.P.No.3264/2005 and also on the
application filed by the petitioners under Section 4 of
Repeal 'Act, 1999' has passed the order on
01/09/2011(Annexure-P-11) holding that the land in
question is lying vacant and is in possession of the
State Government. The Additional Collector has also
perused the respective record of the revenue
authorities, in which it is found that the Tehsildar
Nazool has already taken the possession of the land
on 01/11/1990 in a case No.44/55/B-121/88-89.
(12) Although, in the petition the petitioners by
way of amendment raised an objection that from the
order-sheet dated 29/08/1990, drawn by Tehsildar, it
is clear that he has delegated his power to the Patwari
to take possession of the land, but Patwari was not
the competent authority to do so, as provision of the
'Act, 1976' nowhere specified that possession could
be taken by the Patwari, and as such, proceedings
said to have been carried out by the Patwari for
taking possession is without jurisdiction and was a
nullity. As per the petitioners, nowhere it is specified
that as to when the possession has been taken over by
the competent authority by giving notice to the
petitioners, under the provisions of Section 10 of the
'Act, 1976'. As per the petitioners, all the
proceedings were carried out behind the back and
infact were not conducted by the revenue authorities.
They had never issued any notice under Section
10(5)(6) of 'Act, 1976' and possession shown to have
been taken only on paper, but the petitioners are still
holding the possession of the land in question. They
have also filed photographs and certificate issued by
the respective Gram Panchayat to show that the
possession is still with the petitioners, and they have
been cultivating the land since long.
(13) The petitioners relied upon the judgment of
the Supreme Court in the case of State of U.P. Vs.
Hariram, (2013) 4 SCC 280, saying that if notice
under Section 10(5)(6) of the 'Act 1976' has not been
issued to the land owner and possession has been
taken over, the said possession is illegal, and
proceedings initiated under the provisions of the
'Act, 1976' can be held abated. They have also relied
upon a decision passed in (Gayatri Devi Vs. State of
M.P.), (2016) 4 MPLJ 460, saying that the notice
under Section 10(5)(6) of the 'Act 1976' ought to
have been issued in the name of the persons, who are
in possession of the land. Moreover, they further
relied upon the order passed in Dhaniram through
LRs Ramkumar Pathak Vs. State of M.P. and
another, (2012) SCC online M.P.5050 and in Allied
Motors Ltd. Vs. Bharat Petrolium Corporation
Ltd., (2012) 2 SCC 1.
(14) According to the petitioners, no notice was
issued to them under Section 10(5)(6) of the 'Act,
1976' and no documents have been produced by the
respondents to substantiate that the notices were
issued and served upon the petitioners, and
possession has been taken after following due
procedure of law. As such, the proceedings initiated
under the provisions of 'Act, 1976' are required to be
held abated in view of Section 4 of the Repeal 'Act,
1999'.
(15) Respondents by way of detailed reply,
refuted all the contentions contained in the writ
petition. They have broadly stated that on 12/06/1990
(Annexure-R-5), notice was sent to the petitioners for
their appearance and taking possession, but they did
not appear, therefore, the Tahsildar proceeded ex-
parte against them on 12/06/1990. It is asserted by
the respondents that after taking over the possession
of the lands, the revenue entries were accordingly
made and revenue records were corrected showing
name of the State as a owner of the land in question.
The respondents have also taken a stand that the writ
petition is not maintainable, because the petitioners
have failed to produce any documents in their
support to substantiate that they are still in
possession and the sthal Panchnama and letter of
possession dated 01/11/1990 are not correct. In the
reply itself, the Respondents have referred to the
decision of the Apex Court in the case of State of
Assam Vs. Bhaskar Jyoti Sharma, reported in
(2015) 5 SCC 321, wherein the Apex Court has
considered the fact that if a proceedings of Urban
Land (Ceiling and Regulation) Act, 1976 is assailed
after a long lapse of time, the petition can be
dismissed on the ground of delay and laches. The
State has further relied upon a decision rendered in
Indore Development Authority Vs. Manoharlal,
2020 SCC online SC 316, in which it is observed by
the Supreme Court that when the State Government
draws up a memorandum of taking possession that
amounts to taking physical possession of the land.
(16) Shri Anvesh Shrivastava, counsel
appearing for the respondent-State has also supported
the stand taken in the reply and contended that once
the State has shown that the possession is taken over,
and accordingly revenue record is corrected, nothing
remains to be adjudicated further, the claim of the
petitioners, therefore, is liable to be rejected, and
petition according to him deserves to be dismissed.
(17) The core question that emerges from the
multitude of collaterals and the exhaustive pleadings
of the parties is "whether possession of the land
under the provisions of 'Act, 1976' was taken after
following due procedure of law or not ?"
(18) Learned counsel for the petitioners submits
that although the respondents in the return have
stated that they have issued notice to the petitioners
for taking possession of the land, but they have failed
to produce any document to indicate that before
taking possession, any notice under Section 10(5)(6)
of the 'Act 1976' was issued to the petitioners and
got served upon them. In the reply submitted by the
respondents, it is stated that the notice is Annexure-
R-5, but prima facie perusal of said notice does not
reveal that the same has been issued under Section
10(5)(6) of the 'Act, 1976'; whereas document
Annexure-R/4 dated 02/05/1988 available on record
says that the notice of handing over possession was
issued to the original owner-Heeralal on 19/07/1988,
but nothing has been filed by the respondents to
indicate as to what happened on 19/07/1988. There
was no notice produced by the respondents showing
that the present petitioners were ever asked to hand
over the possession of the lands, otherwise ex parte
possession would be taken. Although, from the order
sheet dated 01/11/1990 it reveals that the possession
of the land in question was taken ex parte in favour
of the State.
(19) Quite the reverse, the petitioners filed the
documents i.e a certificate issued by Gram
Panchayat, Maharajpur on 27/07/2012 (Annexure-P-
14), along with photographs and also a Panchnama
signed by number of villagers, saying that the lands
in question is still in possession of the petitioners,
and the same were being cultivated by them since
long. They have also filed a certificate issued by the
Gram Panchayat, Maharajpur, Janpad Panchayat,
Panagar, Jabalpur on 28/12/2010 (Annexure-P-15), in
which Kotwar has verified that the certificate issued
by the Sarpanch of Gram Panchayat, Maharajpur
saying that the land in question is in possession of
the petitioners is correct. The petitioners have also
filed a document i.e possession letter of Case No.
44/55/B 121/88-89, showing that the land in question
was recorded in the name of original owner Heeralal
s/o Bhairoprasad and possession was handed over on
01/11/1990.
(20) Though, in the reply filed by the
respondent no.5 it is stated that the Collector has
already passed the order allotting the land to the
respondent no.5, but there is nothing on record to
indicate that the land has ever been given to the
respondent no.5, and scheme has been implemented
over the said land. However, during the argument,
when a query was put to learned counsel for
respondents, as to whether any development has been
taken place in pursuance to the allotment and
implementation of the scheme i.e (JLNRSNM),
counsels were not aware of the existing factual
position.
(21) Shri Duggal, counsel appearing for the
petitioners submits that the order of the Collector
itself is illegal for the reason that the Writ Court in
W.P.No.14276/2011 had already directed the
Tahsildar to decide the objection and also directed
the parties to maintain status quo in regard to
possession of the land, and since the Tehsildar has
not decided the objection, the order of status quo is
still in force, and has infact been maintained by the
parties. He submits that possession is still with the
petitioners.
(22) I have heard exhaustive arguments
advanced by learned counsel for the parties, and
perused the record.
(23) On perusal of record, I find force in the
submissions made by learned counsel for the
petitioners. There is nothing on record to establish
that the respondent-corporation has ever taken
possession of the land, and carried out any exercise
over the same. On the contrary, land is shown to
have been in possession of petitioners. This Court on
earlier occasion taking note of the law laid down by
the Supreme Court in case of Hariram (supra) as
well as other cases passed by the Division Bench has
held that if the possession of the land in a proceeding
initiated under the provision of 'Act, 1976' is not
taken after following due procedure of Section 10 of
'Act, 1976', the said possession is held to be illegal,
and as per the Section 4 of Repeal Act, 1999, the
proceedings of provisions of the 'Act 1976' are
declared abated.
(24) The respondents have filed certain
documents along with the reply, wherein, Annexure-
R-4 is a notice said to have been issued to Heeralal,
who was father of the present petitioner, in whose
name land was recorded. The notice was issued in the
year 1988 and as such respondents are claiming that
the possession was taken in the year 1988 and,
therefore, the land owner were asked to remain
present on spot on 19/07/1988. Thereafter,
Annexure-R-5, a notice dated 12/06/1990 was issued
for making appearance in a ceiling case and finally
order sheet dated 01/11/1990 contained that the
possession of surplus land was taken ex parte on
01/11/190. Thus, as per the documents submitted by
the respondents, there are two dates about taking
possession, one is 19/07/1988 and another is
01/11/1990. The respondents although have taken a
stand in their reply that possession has been taken on
01/11/1990, but the petitioners did nothing for long
period and filed a petition only in the year 2005, that
too after 15 years and as such, they are claiming that
in view of law laid down by the Supreme Court in
the case of State of Assam Vs. Bhaskar Jyoti
Sharma reported in (2015) 5 SCC 321, the claim of
the petitioners is liable to be rejected on the ground
of delay and writ petition is not maintainable. But, I
am not convinced with the stand taken by the
respondents for the reason that before filing of the
petition, the petitioners were in possession of the
land, which was never taken by the respondents. The
Court on earlier occasion considering the
submissions made by learned counsel for parties
directed the competent authority to ascertain as to
whether possession has been taken over or not, if it is
taken whether requirement of Section 10 of the 'Act,
1976' as prescribed under the statute has been
followed or not. Once the Court while entertaining
the petition had directed the authorities for
ascertaining the quantum of possession and
proceeding initiated in furtherance to the said order
then at this stage, it does not seem proper on the part
of the respondents to raise the ground that the
petition is not maintainable as barred by time,
because the competent authority while proceeding
further conducted an inquiry and passed an order on
01/09/2011, which is under challenge in this petition.
From the order dated 01/09/2011 it revealed that the
possession of the land in question was taken on
01/11/1990 and although the land is lying vacant, but
it is in possession of the State. It is also submitted by
the petitioners that in Writ Petition No.14276/2011
decided by the High Court on 27/08/2011, the Court
while disposing of the same, has directed Tehsildar to
decide the objection preferred by the petitioners in
respect of the proceedings initiated by the authorities
under the provisions of the Act, 1976 and the
proceedings remained pending in view of direction of
the High Court in W.P.No.3264/2005, so as to
ascertain the quantum of possession and requirement
of procedure followed by the revenue authorities
under the provisions of Section 10 of the Act, 1976.
Since, status quo order was granted by the Court till
the decision of the objection decided by the
Tehsildar, but as per the pleadings and stand taken by
the parties, Tehsildar did not decide the objection and
according to the petitioners, status quo order was
continued. Thus, the stand taken by the respondent
no.5 that the land in question was allocated for the
purpose of implementing the scheme known as
"Jawahar Lal Nehru Rashtriya Shahri Navinikaran
Mission", JNRSNM, has no substance for the reason
that the said scheme has not been implemented and
the counsel for the concerning respondent failed to
file any documents indicating any development took
place pursuant to the said scheme. Even otherwise, if
any order has been passed during the existence of
status quo order of High Court and if any allotment
is made in-between entire process shall be considered
to be illegal.
(25) It is the consistent view of the Supreme
Court and also of this Court that possession if any
claimed to have been taken by the State authorities
without following due procedure prescribed under
Section 10 of the Act, 1976, is considered to be
illegal. It is apparent that in this case there is no
documents available on record to indicate that the
authorities have ever issued any notice under
Sections 10(5) and (6) and then took possession of
the land. It is also not clear as to how when as per
the record Annexure-R-4 possession letter is of dated
19/07/1988 then without issuing any notice under
Section 10(5) and (6) it was again taken on
01/11/1990. The petitioners have relied upon a case
of Hariram (supra), in which the Supreme Court has
very clearly laid down that without following
procedure prescribed under Section 10 of 'Act 1976'
and without issuing any notice under Section 10(5)
and (6) if possession is claimed to have been taken,
the same is illegal. Relevant observations made by
the Supreme Court in the case of Hariram are as
under :-
31. The 'vesting' in sub-section (3) of Section 10, in our
view, means vesting of title absolutely and not possession though
nothing stands in the way of a person voluntarily surrendering or
delivering possession. The court in Maharaj Singh v. State of UP
and Others (1977) 1 SCC 155, while interpreting Section 117(1)
of U.P. Zamindari Abolition and Land Reform Act, 1950 held that
'vesting' is a word of slippery import and has many meaning and
the context controls the text and the purpose and scheme project
the particular semantic shade or nuance of meaning. The court in
Rajendra Kumar v. Kalyan (dead) by Lrs. (2000) 8 SCC 99 held
as follows:
"We do find some contentious substance in the contextual facts,
since vesting shall have to be a "vesting" certain. "To vest, generally
means to give a property in." (Per Brett, L.J. Coverdale v. Charlton.
Stroud's Judicial Dictionary, 5th edn. Vol. VI.) Vesting in favour of
the unborn person and in the contextual facts on the basis of a
subsequent adoption after about 50 years without any authorization
cannot however but be termed to be a contingent event. To "vest",
cannot be termed to be an executor devise. Be it noted however, that
"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 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 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 sub-section (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 sub-section (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 sub-
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 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 only in a
situation which falls under sub-section (6) and not under sub-
section (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.
(26) This Court has also relied upon the case of
Hariram (supra) and other cases of Division Bench
passed by the High Court and also considered the
objection regarding maintainability of petition on the
ground of delay, whereby relying upon the case of
Bhaskar Jyoti Sharma (supra), the Division Bench
of this Court has laid down in a case of Rohini
Prasad Patel Vs. State of M.P. & others, reported
in 2020 (2) MPLJ 404, which reads thus:-
8. Since the respondents have raised
an objection regarding maintainability of the
petition on the ground of delay and laches and
placed reliance upon a decision of the Hon'ble
Supreme Court in the case of Bhaskar Jyoti
Sharma (supra), it is appropriate to decide the
said issue first.
From the facts and circumstances of the
case, as discussed hereinabove, undisputedly in the year
2011, a petition in the shape of Public Interest
Litigation was filed by the petitioners, which was
disposed of by the Division Bench of this Court vide
order dated 30.09.2011 directing the petitioners therein
to approach the Competent Authority through a
representation raising their grievance. In the said
petition, the issue was that number of persons whose
lands were declared surplus and vested in the State
Government in pursuance to the provisions of the Act,
1976, no intimation was given to the affected persons
and no panchnamas were prepared but in the revenue
record, it is shown that lands have been declared
surplus and possession thereof has also been taken.
In pursuance to the direction given by the
Division Bench, the petitioner in the present petition, for
ventilation of his grievance, has moved a representation
before the Competent Authority and the said Authority,
in turn, has passed the order impugned dated
18.03.2018. Therefore, the contention of the respondents
that the petitioner cannot raise this issue after lapse of
sufficient time, is not appropriate because in the said
case, a liberty had been afforded by the Division Bench
to the petitioners therein and as the same has been
exercised by the petitioner in the present petition and the
Competent Authority has rejected his representation and
passed the order impugned dated 18.03.2018, therefore,
it cannot be said that there is delay in filing the present
petition. In fact the Division Bench of this Court in
Hemraj Kachhi (supra) has also considered the aspect
of delay in raising the dispute regarding illegal
proceeding of the Act, 1976 and asking the same be
declared abated in view of the provisions of the Repeal
Act, 1999. The Division Bench has observed that there is
no provision under the Repeal Act, 1999 providing
statutory period of limitation to raise the dispute,
therefore, delay is not a ground. In the said writ appeal,
the Division Bench has observed as under:-
"We are conscious of the fact that the
Additional Collectorhas also noted that the
application has been filed after expiry of 11
years. The fact that it is filed after 11 years, can
be the basis to non-suit the appellant will
depend on whether the repeal Act provides
statutory period within which the application
should be submitted. From the provisions of the
repeal Act it appears that on coming into force
of the repeal Act, if the person had continued to
be in lawful possession of the surplus land until
that date, the title in respect of the said land
would stand revested and the declaration about
the surplus holding and the vesting of land
continued u/s 10(3) cannot be taken forward
having lapsed. These are the matters which the
Authority ought to have examined keeping in
mind the dictum of the Apex Court in State of
U.P. vs. Hariram (supra) and in particular the
provisions of the Urban Land (Ceiling &
Regulation) RepealAct, 1999."
The case on which the respondents
have placed reliance shall apply in a case where actual
physical possession of the land is taken from the land
owner. The Hon'ble Supreme Court while dealing with
the case involving the fact in which actual physical
possession was taken over from the erstwhile land owner
on 07.12.1991 and as such, the grievance raised on
Section 10(5) of the Act, 1976 has been held to have
been raised within the reasonable time of such
dispossession. The Hon'ble Supreme Court has further
observed that if the owner did not do so, forcibly taking
over the possession would acquire legitimacy by sheer
lapse of time and dealing with Section 3(1)(a) of the Act,
1976, the Repeal Act, 1999 has held that the petition
under Article 226 is not maintainable for seeking
declaration of proceeding initiated under the provisions
of Act, 1976 abated. It is clear from the view of the
Hon'ble Supreme Court that the Apex Court was very
specific and has applied the point of delay and laches in
a case where actual physical possession has been taken
over.
However, in the present case, the
issue involved is that no possession has been taken over
from the petitioner and he is still in possession over the
land in question, no notice under Section 10(5) of the
Act, 1976 was served upon him and further, no forceful
possession was taken after issuing the notice under
Section 10(6) of the Act, 1976. As per the petitioner, the
document i.e. notice under Section 10(5) was never
served upon him and also notice under Section 10(6)
was not issued and the possession letter is fabricated and
has no legal sanctity in the eyes of law and the same
does not indicate that one sided and forceful possession
of the land in question has been taken over. Accordingly,
in my opinion, the case relied upon by the respondents
has no applicability in the present facts and
circumstances of the case, therefore, the present petition
cannot be dismissed on the ground delay and laches and
thus, the objection raised by the respondents is,
therefore, rejected.
9. From a bare perusal of the
documents filed by the petitioner as also the
record produced by the respondents, it is clear
that the notice issued under Section 10(5) of the
Act, 1976 does not contain any endorsement as to
when it got served upon the petitioner. The
petitioner has come with a very specific stand that
the notice under Section 10(5) of the Act, 1976
has neither been issued nor served upon him then
it was obligatory for the respondents to
substantiate that notice was not only issued but
served upon the petitioner. Instead of doing so,
the respondents have filed a very casual reply and
in paragraph-5.1 of the reply, they have simply
said that the notice dated 30.01.1993 issued under
Section 10(5) of the Act, 1976 was served upon
the petitioner. Although, the said notice which is
available on record as Annexure-R/1 does not
contain any signature of the witnesses before
whom it was served upon the petitioner and in
fact there was no corroborating order-sheets of
the Ceiling Authorities showing that notice under
Section 10(5) of the Act, 1976 was ever issued
upon the petitioner. As per reply, it reveals that
the date of notice issued under Section 10(5) of
the Act, 1976 is 30.01.1993 whereas from a
perusal of the said documents, it can be seen that
the case was fixed for 23.10.1993. It indicates
that the dates are fabricated because there cannot
be a gap of almost nine to ten months between the
date of notice and fixing the date for reporting of
taking possession. Further, the record does not
contain any notice issued under Section 10(6) of
the Act, 1976 even the reply of the respondents is
silent to that regard. The possession letter which
is also available on record, does not contain any
date as to when the possession has been taken
over so also before whom it was taken. The said
letter does not contain signature of the witnesses,
therefore, the said letter has no legal sanctity in
the eyes of law. The record submitted by the
respondents also does not indicate as to when
notice under Section 10(5) of the Act, 1976 was
issued and on failure to handover the possession
of the land in question, proceedings of Section
10(6) of the Act, 1976 were initiated and as to
when, the possession has been taken over
forcefully. As contended by the petitioner that he
is still holding the possession over the land and
the same is being cultivated by him indicating
that no possession has been taken over from him
under the proceedings of Act, 1976, therefore, in
view of the Section 3 of the Repeal Act, 1999, the
proceeding of the Act, 1976 can be held abated.
10. Considering the contention raised by
the learned counsel for the petitioner that he has
confined his arguments alleging that there was
clear violation of compliance of the mandatory
requirements of Sections 10(5) & 10(6) of the Act,
1976, this Court is only examining the contention
of the petitioner in the light of the law laid down
by the Hon'ble Apex Court and also by this Court
on which the petitioner has placed reliance. As per
the facts available on record as also discussed in
preceding paragraphs, admittedly, there was no
notice issued under Sections 10(5) and 10(6) of
the Act, 1976. Not only this but there is no
material adduced by the respondents nor is it clear
from the record substantiating that the notice
under Section 10(5) of the Act, 1976 has been
served upon the petitioner. Thus, in view of the
law laid down by Hon'ble the Apex Court in the
case of Hari Ram (supra) the ceiling proceedings
initiated against the petitioner cannot be said to be
in accordance with the requirement of law. This
aspect has been considered by the Division Bench
of this Court in the case of Gayatri Devi (supra)
and also in other cases in which, the petitioner has
placed reliance and in all the cases, it has been
held that issuance of notice under Sections 10(5)
and 10(6) of the Act, 1976 is a mandatory
requirement and if the same is not followed, the
proceedings initiated by the Authorities under the
provisions of the Act, 1976 require to be set aside.
Furthermore, this Court on earlier occasion has
dealt with the similar issue in Writ Petition
No.18827/2010 parties being [Mangal Prasad
Koshta & others Vs. State of M.P. & others] and
has observed as under:-
10.The Division Bench of this Court in the case of Rajubai and
others (supra) and Thamman Chand 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.
(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.
09. In terms of Section 10 (1) of the Act, it was
incumbent upon the competent authority to give
notice to all person interested in such vacant land
either personally or through their agent by giving
particulars of their interest as is required to be given
under Section 10 of the Act. Since the petitioner was
in possession and such possession having been
recognized by virtue of an order passed by the
Tehsildar on 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
possession Annexure-R3 shows that it is only a paper
possession without taking actual possession from the
land owner and without giving notice to person who
is in possession. The person in possession is required
to be given notice under sub-sections (5) and (6) of
Section 10. The relevant extract from the Supreme
Court judgment read as under :-
"30. Vacant land, it may be noted, is not
actually acquired but deemed to have been
acquired, in that deeming things to be what
they are not. Acquisition, therefore, does not
take possession unless there is an indication to
the contrary. It is trite law that in construing a
deeming provision, it is necessary to bear in
mind the legislative purpose. The purpose of
the Act is to impose ceiling on vacant land, for
the acquisition of land in excess of the ceiling
limit thereby to regulate construction on such
lands, to prevent concentration of urban lands
in the hands of a few persons, so as to bring
about equitable distribution. For achieving that
object, various procedures have to be followed
for acquisition and vesting. When we look at
those words in the above setting and the
provisions to follow such as sub-sections (5)
and (6) of Section 10, the words "acquired"
and "vested" have different meaning and
content. Under Section 10(3), what is vested is
de jure possession not de facto, for more
reasons than one because we are testing the
expression on a statutory hypothesis and such
an hypothesis can be carried only to the extent
necessary to achieve the legislative intent.
31. The 'vesting' in sub-section (3) of Section
10, in our view, means vesting of title
absolutely and not possession though nothing
stands in the way of a person voluntarily
surrendering or delivering possession. The
court in Maharaj Singh v. State of UP and
Others (1977) 1 SCC 155, while interpreting
Section 117(1) of U.P. Zamindari Abolition
and Land Reform Act, 1950 held that 'vesting'
is a word of slippery import and has many
meaning and the context controls the text and
the purpose and scheme project the particular
semantic shade or nuance of meaning. The
court in Rajendra Kumar v. Kalyan (dead) by
Lrs. (2000) 8 SCC 99 held as follows:
"We do find some contentious substance in
the contextual facts, since vesting shall
have to be a "vesting" certain. "To vest,
generally means to give a property in." (Per
Brett, L.J. Coverdale v. Charlton. Stroud's
Judicial Dictionary, 5th edn. Vol. VI.)
Vesting in favour of the unborn person and
in the contextual facts on the basis of a
subsequent adoption after about 50 years
without any authorization cannot however
but be termed to be a contingent event. To
"vest", cannot be termed to be an executor
devise. Be it noted however, that "vested"
does not necessarily and always mean "vest
in possession" but includes "vest in
interest" as well.
33. Before we examine sub-section (5) and sub-
section (6) of Section 10, let us examine the
meaning of sub-section (4) of Section 10 of the
Act, which says that during the period
commencing on the date of publication under
sub-section (1), ending with the day specified in
the declaration made under sub-section (3), no
person shall transfer by way of sale, mortgage,
gift or otherwise, any excess vacant land,
specified in the notification and any such
transfer made in contravention of the Act shall
be deemed to be null and void. Further, it also
says that no person shall alter or cause to be
altered the use of such excess vacant land.
Therefore, from the date of publication of the
notification under sub-section (1) and ending
with the date specified in the declaration made
in sub-section (3), there is no question of
disturbing the possession of a person, the
possession, therefore, continues to be with the
holder of the land.
Peaceful dispossession
34. Sub-section (5) of Section 10, for the first
time, speaks of "possession" which says that
where any land is vested in the State
Government under sub-section (3) of Section
10, the competent authority may, by notice in
writing, order any person, who may be in
possession of it to surrender or transfer
possession to the State Government or to any
other person, duly authorised by the State
Government.
35. If de facto possession has already passed on
to the State Government by the two deeming
provisions under sub-section (3) of Section 10,
there is no necessity of using the expression
"where any land is vested" under sub-section
(5) of Section 10. Surrendering or transfer of
possession under sub-section (3) of Section 10
can be voluntary so that the person may get the
compensation as provided under Section 11 of
the Act early. Once there is no voluntary
surrender or delivery of possession, necessarily
the State Government has to issue notice in
writing under sub-section (5) of Section 10 to
surrender or deliver possession. Sub-section (5)
of Section 10 visualises a situation of
surrendering and delivering possession,
peacefully while sub-section (6) of Section 10
contemplates a situation of forceful
dispossession.
Forceful dispossession
36. The Act provides for forceful dispossession
but only when a person refuses or fails to
comply with an order under sub-section (5) of
Section 10. Sub-section (6) of Section 10 again
speaks of "possession" which says, if any
person refuses or fails to comply with the order
made under sub-section (5), the competent
authority may take possession of the vacant
land to be given to the State Government and
for that purpose, force--as may be necessary--
can be used. Sub-section (6), therefore,
contemplates a situation of a person refusing or
fails to comply with the order under sub-section
(5), in the event of which the competent
authority may take possession by use of force.
Forcible dispossession of the land, therefore, is
being resorted to only in a situation which falls
under sub-section (6) and not under sub-section
(5) of Section 10. Sub-sections (5) and (6),
therefore, take care of both the situations i.e.
taking possession by giving notice, that is,
"peaceful dispossession" and on failure to
surrender or give delivery of possession under
Section 10(5), then "forceful dispossession"
under sub-section (6) of Section 10.
37. The requirement of giving notice under sub-
sections (5) and (6) of Section 10 is mandatory.
Though the word "may" has been used therein,
the word "may" in both the sub-sections has to
be understood as "shall" because a court
charged with the task of enforcing the statute
needs to decide the consequences that the
legislature intended to follow from failure to
implement the requirement. Effect of non-issue
of notice under sub-section (5) or sub-section
(6) of Section 11 is that it might result in the
landholder being dispossessed without notice,
therefore, the word "may" has to be read as
"shall"."
12. Since the revenue record records the possession
of the writ petitioners and also the proceedings to
take over possession, therefore, the writ petitioner
was entitled to a notice to deliver possession to the
State in terms of Section 10(5) of the Act and on
failure of the writ petitioners to hand over possession
to use force in terms of Sub Section 6 of Section 10
of the Act. Since the Repeal Act contemplates that if
possession has not been taken, the land will not vest
with the State Government. Therefore, the land in
question would not vest with the State Government."
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 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.
Peaceful 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 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 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
as 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 Pathak 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 witnesses 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 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 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]
11. Recently, Hon'ble the Apex Court
has affirmed the order passed by the Division Bench of
this Court in the case of Anees Fatima (supra) vide order
dated 10.12.2018 passed in Diary No.42231/2018.
(27) Recently against a decision in case of the
State of Madhya Pradesh & others Vs. Balgovind
Jyotishi decided by Division Bench of this Court
relying upon the judgment in the case of Hariram
(supra), a SLP was preferred vide SLP No.910-
911/2020, which has been dismissed by the Supreme
Court vide order dated 20/11/2021 holding that there
was no reason to interfere in the reasoned and
detailed order passed by the High Court.
(28) Considering the aforesaid legal position
and ennunciation of law laid down by the Supreme
Court and also by this Court, I have no hesitation to
say that the stand taken by the respondents in respect
of possession claimed to have been taken over is not
sustainable and is contrary to the record.
(29) Ex-consequentia the petition filed by the
petitioners is allowed. The orders passed by the
Additional Collector on 01/09/2011 (Annexure-P-11)
and Collector on 19/12/2011 (Annexure-P-10) are
hereby set aside. The land in question bearing khasra
no.22, 30 and 37 measuring 4.760, 0.237 and 1.967
hectare situated at Village Maharajpur Tehsil Panagar
District Jabalpur is in possession of the petitioners
and is declared free from all legal impediments. The
total land which is said to be a disputed land in this
petition is 69.643.56 square meter is in possession of
the petitioners and is free from provisions of Act,
1976 in pursuance to the Repeal Act, 1999.
Accordingly, respondents-authorities are directed to
correct the revenue record within a period of three
months from the date receipt of copy of the order.
Accordingly, petition stands allowed.
(Sanjay Dwivedi)
Judge
Digitally signed by SUSHMA KUSHWAHA
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH,
SUSHMA
ou=HIGH COURT OF MADHYA PRADESH,
postalCode=482001, st=Madhya Pradesh,
2.5.4.20=06cc7ec7869e71b23c61580e1aaad85481f7ea4
8cd875c18e5a68787947df0c5,
KUSHWAHAsushma
pseudonym=3162691BECDE33282E19E0CEBA20524E3
1482089,
serialNumber=0844205F54108DDA40342AD423EF1D3
DE29D4F5E3FC94CC59B05D91905B104C7,
cn=SUSHMA KUSHWAHA
Date: 2021.12.09 10:45:31 +05'30'
