Madhya Pradesh High Court
Chiranji Lal Kumhar vs The State Of Madhya Pradesh on 10 May, 2023
Author: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 10th OF MAY, 2023
WRIT PETITION No.1432 of 2022
BETWEEN:-
1. CHIRANJI LAL KUMHAR, S/O. SHRI DALCHAND
KUMHAR, AGED ADULT, OCCUPATION
FARMER, R/O. H. NO. 178, GARHA PURWA,
BEHIND RADHA MANDIR, GARHA, DISTRICT
JABALPUR (M.P.)
.....PETITIONER
(BY SHRI ROHIT RAGHUVANSHI - ADVOCATE)
AND
1. STATE OF MADHYA PRADESH, THROUGH
PRINCIPAL SECRETARY, REVENUE
DEPARTMENT, VALLABH BHAWAN, BHOPAL
(M.P.)
2. COMPETENT AUTHORITY-CUM ADDITIONAL
COLLECTOR UNDER THE URBAN LAND
CEILING ACT, OFFICE OF THE COLLECTOR,
JABALPUR (M.P.)
3. TEHSILDAR, GORAKHPUR, TEHSIL
GORAKHPUR, JABALPUR (M.P.)
......RESPONDENTS
(SHRI GIRISH KEKRE - GOVERNMENT ADVOCATE FOR THE
RESPONDENTS/STATE)
............................................................................................................................................
Reserved on : 27.02.2023
Pronounced on : 10.05.2023
............................................................................................................................................
This petition having been heard and reserved for orders,
coming on for pronouncement this day, the Court pronounced the
2
following:
ORDER
Since pleadings are complete and learned counsel for the
parties are ready to argue the matter, therefore, it is finally heard.
2. Learned counsel for the petitioner by the instant petition
filed under Article 226 of the Constitution of India is questioning the
legality, validity and propriety of order dated 23.11.2020 (Annexure P/4)
passed in Revenue Case No.0147/A-6-A/2019-20 by the respondent
no.2 whereby the application filed by the petitioner has been rejected.
3. To decide the controversy involved in the matter, relevant
facts of the case are required to be taken note of which are as under:-
3.1. That, the petitioner by the instant petition is questioning the
action of the respondents whereby the land of father of the petitioner
which is situated at Khasra No.215, area 0.206 hectares, Khasra
No.214/2, area 0.959 hectares, total area 1.265 hectares, situated at
Village Purva, Tehsil Gorakhpur, District Jabalpur which was subject
matter of the proceeding initiated under the Urban Land (Ceiling and
Regulation) Act, 1976 (hereinafter referred to as the 'Act of 1976) was
declared to be vested in the State Government as surplus land.
3.2 As per the petitioner, the original landlord Bodhilal vide
registered sale deed dated 01.03.1971 (Annexure P/1) sold the land to
the father of present petitioner and since then he was in continuous
possession of the land till his death and thereafter the petitioner being
his son is still in possession of the aforesaid land.
3.3 The proceeding under the provisions of the Act of 1976
according to the petitioner was initiated behind his back and he came to
know about the said proceeding in the year 2019 because according to
him, that proceeding was only on paper and factually nothing was done.
According to the petitioner, though a case under the provisions of the
Act of 1976 got registered vide Case No.25/A-90(B-9)/80-81 in his
father's name, but no notice under Sections 10(5) and 10(6) of the Act of
1976 was ever served upon him. According to the petitioner, without
taking possession over the land in question, the respondents started the
proceedings under Sections 11, 12 and 14 of the Act of 1976 and even
the possession certificate dated 22.06.1993 does not bear the signature
of a person in possession of the land. The documents filed by the
petitioner reveal that in none of the documents, the signature of the land
owner has been taken or anything was ever informed to him that
proceeding under the provisions of the Act of 1976 has been initiated
after submitting the statement under Section 6 of the Act of 1976. As per
the petitioner, notice issued under Section 10(5) of the Act of 1976 does
not contain the signature of the land owner. Even the panchnama
prepared by the respondents does not contain the signature of the land
owner and on the contrary, it reveals that the land owner refused to put
signature over the same. The possession letter also does not contain the
signature of the land owner and according to the petitioner, the whole
proceeding shown to have been initiated under the provisions of the Act
of 1976 is illegal and can be declared to be abated in pursuance to the
provisions of the Urban Land (Ceiling and Regulation) Repeal Act, 1999
(hereinafter referred to as the 'Repeal Act') because possession of the
land in question has not been taken by the respondents as it is still in
possession of the petitioner and as such, according to the petitioner, the
correction in revenue record behind his back is improper and illegal and,
therefore, the application was moved by him under Section 115 of the
M.P. Land Revenue Code, 1959 (for short, '1959 Code') for correction
in the revenue record, removing the name of the State by inserting the
petitioner's name in the revenue record.
4. Learned counsel for the petitioner has relied upon the
decisions of the Supreme Court reported in 2013 (9) SCC 289 (State of
Uttar Pradesh Vs. Hariram); (2021) 5 SCC 313 (U.A. Basheer Vs.
State of Karnataka) and a Division Bench decision of this Court
passed in W.A. No. 854/2014 (Hemraj Kachhi Vs. State of Madhya
Pradesh).
5. Reply has been filed by the respondents stating therein that
in the proceeding initiated under the provisions of the Act of 1976, the
possession of the land was taken from Dalchand on 22.06.1993 and
since Dalchand refused to sign over the possession letter, therefore, an
ex parte possession was taken. It is also stated by the respondents that in
lieu of acquisition of land, compensation has also been paid to the
petitioner and letter of compensation has been filed as Annexure R/3. It
is also stated that Collector, Jabalpur after calling the reports
(prativedan) from Tehsildar on 10.12.2019, Sub Divisional Officer,
Revenue on 30.12.2019 as also from Incharge Ceiling Cell on
14.02.2020 came to the conclusion that application under Section 115 of
M.P. Land Revenue Code, 1959 deserves to be rejected and accordingly
it has rightly been rejected.
6. Record of the case has also been called which is available
and also examined by this Court.
7. From perusal of the record available and the documents
filed by the parties, it is seen that except in the statement submitted by
the land owner under Section 6 of the Act of 1976, in none of the
documents, the signature of the land owner or any of his representative
is found. After passing the order by the competent authority on
09.02.1986 declaring the land to be surplus, the draft statement as per
requirement of Section 8 was not prepared and there is nothing available
on record to substantiate that the said draft statement was ever served
upon the land owner. Thereafter, final statement was prepared after
deciding the objection invited after preparing the draft statement.
However, after service of draft statement, objections were required to be
submitted within a period of 30 days but it is also not clear from the
order-sheets whether 30 days time was granted or not. The final
statement was prepared but that has also not been served upon the land
owner. The order-sheets from the record submitted by the respondents
reveal that the authority has written the order-sheet for issuing final
statement and that is in the order-sheet dated 19.08.1983 which reads as
under:-
^^ekeyk vkt fy;k x;kA vkMZj 'khV fnukad 30-12-82 ds vuqlkj
izdj.k esa final statement tkjh fd;k tkuk gS ijUrq vfHkys[k ds
voyksdu ls Li"V ugha gksrk fd vkosnd ij dc final statement
rkehy fd;k x;k gSA iqu% final statement tkjh djsaA**
8. The order-sheet dated 19.10.1983 reveals that final
statement was not served upon the land owner. The next order-sheet
dated 24.11.1983 reveals that final draft statement got served on
17.11.1983 but no objection received. As per the pleading made in the
petition and the contention made by counsel for the petitioner that the
proceeding under the provisions of the Act of 1976 was initiated behind
the back of the petitioner as he was never noticed after submitting the
statement as per Section 6 of the Act of 1976. As per counsel for the
petitioner, since the proceeding was incomplete, therefore, the correction
made by the respondents in the revenue record in view of proceeding of
Act, 1976 is absolutely illegal. Perusal of record submitted by the
respondents in respect of the ceiling proceeding, it is clear that the
statement has been made by the land owner under Section 6 of the Act
of 1976 and the competent authority passed an order on 09.02.1982
under Section 6(1) of the Act of 1976 declaring the land under Section
8(1) of the Act of 1976 surplus and as per the said order, the land
measuring 1,53,629 sq. ft. was declared to be surplus and the order has
been passed to issue fresh statement in that regard. But thereafter, draft
statement as per Section 8 has not been prepared nor it got served upon
the land owner although one letter is available on record dated
30.03.1982 showing that copy of the draft statement in pursuance to the
proceeding initiated under Section 6(1) of the Act of 1976 is attached. At
page 103 of the record submitted by the respondents, there is one letter
dated 01.09.1983 available which reveals that copy of draft statement is
attached with the same but that letter does not reveal as to whether it got
served upon the land owner. Although on the reverse side of the said
letter, a noting is made (Jheku th ekStk x<k ckcth esa tkdj vkosnd dh iq=h dks
nks izfr MkªkQV LVsVeasaV rkehy fd;k) dated 17.11.1983 but there was no
signature over the said endorsement of any of the persons, even the
daughter of the land owner. As per requirement of provisions of the Act
of 1976, after serving the draft statement, objections are to be invited
and after deciding the objections, final statement is to be prepared under
Section 9 and that should also served upon the land owner but neither
from the order-sheet nor from the documents, it can be gathered that any
final statement is prepared or any objection is invited. From the
provisions of Section 8, it is also clear that after serving the draft
statement, 30 days time is granted to submit objection and after deciding
the same, final statement is prepared and served. From the stand taken
by the respondents that the final statement served on 17.11.1983 and on
24.11.1983, i.e. within seven days it is noted that no objection received,
meaning thereby the mandatory requirement of giving 30 days time was
not fulfilled and it appears that the stand taken by the petitioner that all
the proceedings took place behind his back without giving him any
notice. The record produced by the respondents reveals that except the
statement submitted by the land owner under Section 6, in none of the
documents and order-sheets, signature of the land owner and any other
person relating to the land is obtained by the authority. Thereafter, the
order-sheets reveal that proceeding under Section 10(1) was ordered to
be done. The order-sheet dated 09.12.1985 reveals that the notification
under Section 10(1) got issued in the State Gazette dated 05.07.1985 but
still that Gazette was not made available. The proceeding under Section
10(3) was directed to be initiated but no notification under Section 10(3)
of State Gazette was produced although order-sheet dated 26.02.1993
reveals that in the State Gazette dated 12.02.1993, notification of
Section 10(3) was issued. In Section 10(5) proceeding, as per the order-
sheet dated 17.06.1993, it is shown that the said notice was served upon
the land owner but still no signature or acknowledgment produced and
available on record.
9. There is nothing available on record to indicate that after
submitting the statement by the land owner, any proceeding initiated
containing signature of the land owner or any notice served upon him.
From the record available, there is nothing showing that any notice
under Sections 10(5) and 10(6) were issued and served upon the land
owner. Although from the record, it is shown that the land owner was
asked to handover the possession and to sign the possession letter but he
refused to do so then in such a circumstance, as per the mandatory
requirement, proceeding under Section 10(6) had to be initiated and
notice in that regard mandatorily had to be served upon the land owner
but the record is silent and nothing is available on record indicating that
any such proceeding was initiated.
10. When a specific question is raised before this Court and
even before the Collector that the land has not been declared surplus and
proceeding under the Act of 1976 was not in the knowledge of the
petitioner so as to acquire the land treating the same to be surplus, it was
obligatory on the part of the respondents to show as to by which order
the land was declared surplus and as to in what manner the possession
has been taken over. As per the record, in report (prativedan) called by
the Collector, though it is shown that the land is in possession of the
State but the same was fenced by iron wire. However, in the report, it is
not said that the said fencing was done by the Government.
11. Looking to the legal position and the settled principle of
law, if in a proceeding initiated under the provisions of the Act of 1976,
possession of land which is declared surplus is not taken in accordance
with law as prescribed under the provisions of the Act of 1976, then
after repeal of the Act of 1976 and enforcement of the Repeal Act, if it is
found that the land is still in possession of the land owner, the
proceeding of the Act of 1976 is declared to be abated. But here in this
case, the petitioner has come with a specific stand that no proceeding
declaring the land to be surplus has been initiated nor the same was in
the knowledge of the land owner, then the State is under obligation to
substantiate by producing cogent evidence that it was in the knowledge
of the land owner and in his presence, everything was done and
possession of the land declaring the same to be surplus has also been
taken by the respondents/State. Record produced by the State has been
examined by this Court and nothing found in the record showing that the
proceeding was in the knowledge of the land owner because in none of
the documents, his signature was found except the document which is
the statement submitted by him under Section 6 of the Act of 1976.
There was no notice issued under Sections 10(5) and 10(6) of the Act of
1976 and in view of the decision of the Supreme Court and also the
view taken by this Court repeatedly if possession of the land which has
been declared surplus is to be taken then notice under Sections 10(5)
and 10(6) is a must and is a mandatory requirement of law.
12. The Division Bench of this Court in Writ Appeal
No.558/2016 (State of M.P. and Others Vs. Rajubai and others) and
Writ Appeal No.867/2015 (State of M.P. and Others Vs. Thamman
Chand Koshta), considering the respective provision 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."
13. This Court has decided several writ petitions dealing with
the same issue, relying upon the Division Bench judgment and also the
judgment of the Supreme Court. This Court in W.P. No.13623/2019
(Komal Kewat and Others Vs. State of M.P. and another) after
taking a similar view has observed as under:-
"18. The application filed under Section 4 was rejected on the ground
that the case of the petitioners falls within the purview of section 3(1) (a)
of the Act, 1999 which reads thus:-
"3(1) (a). The vesting of any vacant land under sub-section (3)
of Section 10, possession of which has been taken over the
State Government or any person duly authorized by the State
Government in this behalf or by the competent authority."
However, Section 4 of the Act, 1999 under which application is filed
provides as under:-
"4. Abatement of legal proceedings.- All proceedings relating
to any order made or purported to be made under the principal
Act pending immediately before the commencement of this
Act, before any court, tribunal or other authority shall abate :
Provided that this section shall not apply to the
proceeding relating to sections 11, 12, 13 and 14 of the
principal Act in so far as such proceedings are relatable
to the land, possession of which has been taken over by
the State Government or any person duly authorized by
the State Government in this behalf or by the competent
authority."
But the Supreme Court in the case of Hariram (supra) has observed 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 presentcase 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 13 Writ
Petition No.13623/2019 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.
Sub section (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. 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".
19. The aforesaid view of the Supreme Court given in case of Hari ram
(supra) has been further followed by a Three Judge Bench of the Apex
Court in the case of D.R. Somayajulu (supra). The relevant portion of
case of D.R. Somayajulu (supra) is reproduced as under:-
"26. In State of U.P. v .Hari Ram (2013) 4, this Court
considered the question with regard to "deemed vesting"
under Section 10(3) of ULCR Act in the context of saving
clause in the Repeal Act, 1999. This Court held that for the
purpose of saving clause under the repeal Act 1999, de
facto possession is required to be taken by the State and not
de jure. In paragraphs (31), (34) and (35) of Hari Ram case
[State of U.P. v. Hari Ram, (2013) 4 SCC 280 : (2013) 2
SCC (Civ) 583] this Court held as under:- (SCC pp. 296-
97)
"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
U.P. [(1977) 1 SCC 155] : (1977) 1 SCR 1072] while
interpreting Section 117(1) of the U.P. Zamindari
Abolition and Land Reforms Act, 1950 held that
"vesting" is a word of slippery import and has many
meanings and the context controls the text and the
purpose and scheme project the particular semantic
shade or nuance of meaning....
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 subsection (6) of Section 10
contemplates a situation of forceful dispossession."
The first respondent placed much reliance on the
observations in paragraph 42 of Hari Ram case [State
of U.P. v. Hari Ram, (2013) 4 SCC 280 : (2013) 2
SCC (Civ) 583] which reads as under:-
"42. The mere vesting of the land under sub-
section (3) of Section 10 would not confer any
right on the State Government to have de facto
possession of the vacant land unless there has
been a voluntary surrender of vacant land before
18-3-1999. The State has to establish that there
has been a voluntary surrender of vacant land or
surrender and delivery of peaceful possession
under sub-section (5) of Section 10 or forceful
dispossession under sub-section (6) of Section
10. On failure to establish any of those
situations, the landowner or holder can claim the
benefit of Section 4 of the Repeal Act. The State
Government in this appeal could not establish
any of those situations and hence the High Court
is right in holding that the respondent is entitled
to get the benefit of Section 4 of the Repeal
Act."
The contention of the first respondent is that
possession of the surplus land was never surrendered
to the Government and the above observations in Hari
Ram's case are squarely applicable and by virtue of
the repeal Act, land ceiling proceedings stood
abated."
20. Furthermore, the Division Bench of this Court in case of Ram
Kumar Pathak Vs. State of Madhya Pradesh and Others, Writ
Appeal No. 734/2008 has dealt with the circumstance as to when
proceeding initiated under the provisions of the Act, 1976 can be
abated and also dealt with the situation as to under what
circumstance in view of the provisions of Repeal Act, 1999, the
proceeding can be considered to be pending elaborating the scope
of Section 10(5) of the Act, 1976. The observation of the Division
Bench 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
possessionwas 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]
21. This Court in case of Smt. Ratto Bai Vs. State of
M.P. and Others, Writ Petition No. 1476/2015 decided
by order dated 22.10.2018 has while dealing with the
same issue, finally observed that proceedings of the
Act, 1976 are abated for the reason that the
respondent/authority did not follow the required
mandatory provisions of Sections 10(5) and 10(6) of
the Act, 1976 showing land vested in the State as
possession has already been taken over.
22. Considering the submissions made by learned
counsel for the parties and the documents available on
record and the view taken by the Supreme Court and
the High Court in that regard, this Court has no
hesitation to say that the order passed by the
competent authority, which is impugned in this
petition, is contrary to law. The competent authority
proceeded in the matter taking the view that the land
after issuing notice under Section 10(3) of the Act,
1976 is vested in the State, although this view of the
respondents is absolutely unsustainable for the reason
that the documents submitted by the petitioners show
the contrary picture of the case. The report of the
revenue officers indicate that the petitioners have
never been dispossessed from the land and have been
cultivating the same, getting crops from the land in
question and the competent authority itself sought
guidance from the highest authority of the revenue
Department that in the existing circumstances as to
how the defect committed by the authority by not
following the mandatory provisions of Sections 10(5)
and 10(6) of the Act, 1976 can be meeted out and
despite that, application under Section 4 of the Repeal
Act filed by the petitioners has been rejected. The
reply filed by the State is also silent in respect of the
issues on which petitioners have attacked on the
conduct of the respondents and also on the order
passed by the competent authority. Therefore, in the
existing circumstances, I am of the opinion that the
petition deserves to be and is hereby allowed."
14. In view of the aforesaid, it is clear that the respondents have
initiated the proceeding behind the back of the land owner and in fact,
the contention made by learned counsel for the petitioner about
incomplete proceeding of provisions of the Act, 1976 is correct. It is
also clear that the mandatory requirements have not been fulfilled by the
respondents and even the possession has not been taken over from the
land owner whereas revenue record has been corrected showing that the
land is vested in the State. Surprisingly, in none of the documents and
order-sheets filed by the respondents, the signature of the land owner is
available, which creates doubt about the action of the authority and
compel this Court to hold that all proceedings have been initiated only
on paper, that too behind the back of the land owner. Therefore, this
Court has no hesitation to hold that the proceeding initiated under the
provisions of the Act, 1976 is illegal. Accordingly, this petition is
allowed directing the respondents to correct the revenue record in
respect of the land in question i.e. Khasra No.215, area measuring 0.206
hectares and Khasra No.214/2, area measuring 0.959 hectares, total area
1.265 hectares situated at Village Purwa Tehsil Gorakhpur, District
Jabalpur. The aforesaid exercise be completed by the authority within a
period of three months from the date of submitting copy of the order.
15. With the aforesaid, the petition stands allowed and
disposed of.
(SANJAY DWIVEDI)
JUDGE
rao
Digitally signed by SATYA SAI RAO
Date: 2023.05.16 11:55:07 +05'30'
