Madhya Pradesh High Court
Kamla Bai Thr. Lrs Pandit Patil vs The State Of Madhya Pradesh on 7 October, 2023
Author: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT J A B A L P U R
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 07th OF OCTOBER, 2023
WRIT PETITION No. 12525 of 2010
BETWEEN:-
KAMLA BAI (DEAD) THROUGH LRS
1a. PANDIT PATIL S/O SHRI BHAGWAN PATIL,
1. AGED ABOUT 59 YEARS, R/O 399/2 PATIL FARM
HOUSE 80 FEET ROAD ADHAARSHILA
BARKHEDA PATHANI BHEL HUZUR BHOPAL
(MP)
RAVINDRA PATIL S/O BHAGWAN PATIL, AGED
ABOUT 55 YEARS, R/O 399/2 PATIL FARM HOUSE
1b.
80 FEET ROAD ADHAARSHILA BARKHEDA
PATHANI BHEL HUZUR BHOPAL (MP)
SUSHILA PATIL D/O BHAGWAN PATIL, AGED
ABOUT 61 YEARS, R/O 399/2 PATIL FARM HOUSE
1c.
80 FEET ROAD ADHAARSHILA BARKHEDA
PATHANI BHEL HUZUR BHOPAL (MP)
KOKILA PATIL D/O BHAGWAN PATIL, AGED
ABOUT 57 YEARS, R/O 399/2 PATIL FARM HOUSE
1d.
80 FEET ROAD ADHAARSHILA BARKHEDA
PATHANI BHEL HUZUR BHOPAL (MP)
.....PETITIONER
(BY SHRI ROHIT RAGHUVANSHI-ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH
1. ITS SECRETARY, REVENUE DEPARTMENT
MANTRALAYA VALLABH BHAWAN BHOPAL (M.P)
THE ADDITIONAL COLLECTOR/EX-COMPETENT
2. AUTHORITY URBAN CEILING, OLD
SECRETARIAT, BHOPAL (M.P)
TEHSILDAR CAPITAL PROJECT M.P. NAGAR
3.
CIRCLE, NEAR BUS STOP NO. 7, BHOPAL (M.P)
.....RESPONDENTS
Signature Not Verified
Signed by: TARUN KUMAR
SALUNKE
Signing time: 10/9/2023
10:36:25 AM
2
(BY SHRI GIRISH KEKRE -GOVERNMENT ADVOCATE FOR
RESPONDENT/STATE)
................................................................................................................................................
Reserved on : 22.08.2023.
Pronounced on : 07.10.2023.
................................................................................................................................................
This petition having been heard and reserved for orders,
coming on for pronouncement this day, the Court pronounced the
following:
ORDER
In view of the order sheets, counsel for the petitioner has
apprised the Court that the issue involved in this case is squarely
covered and this Court has decided several petitions on the said issue.
Pleadings are complete and petition is of year 2010, synopsis submitted
by the counsel for the petitioner. It is accordingly finally heard.
2. This petition under Article 226 of Constitution of India and
petitioners are claiming following reliefs:-
"(a) It may kindly be declared that on account of abetment
of Urban Land Ceiling proceedings, the petitioner is
entitled to hold the land in question as Bhoomiswami
and the petitioner is also entitled to get the name
mutated in the revenue records.
(b) That, the respondents be directed to correct the entries
in the revenue records by substituting the name of the
petitioner as Bhoomiswami.
(c) Any other relief as this Hon'ble Court may deem fit
may kindly be granted."
3. To resolve the controversy involved in this case, the facts of
the case in nutshell are that the original owner namely Kamla Bai, wife
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Signed by: TARUN KUMAR
SALUNKE
Signing time: 10/9/2023
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of Shri Bhagwan Patil was recorded as Bhoomiswami possessing the
land bearing Khasra No.399/2, Area measuring 6 acres situated in
village Barkheda Pathani, Patwari Halka No.19, Tehsil Hazur District
Bhopal (M.P).
4. As per pleading, the petitioner had purchased the said land
from Shri Laxman Prasad Sahu, S/o Shri Bhagchand Sahu vide
registered sale deed dated 06.05.1977, the details of registered sale deed
also been shown in the petition. It is mentioned in the petition that as per
recital of the sale deed both the seller and purchaser mentioned in the
deed that the land is an agricultural land and as such shown in Master
Plan (Town Planning). After purchase of land, the revenue records were
corrected and name of petitioner was recorded as owner of the land. The
Urban Land (Ceiling and Regulation) Act, 1976 (for short the "Act of
1976) came into force in the State of Madhya Pradesh w.e.f 09.09.1976
and holder of the land was asked to submit their return as per
requirement of section 6 of the Act of 1976. As per petitioner, the land
was an agriculture land and no need to submit any return under section 6
despite that the husband of the petitioner/Bhagwan Patil without there
being any instruction by the petitioner submitted return under section
6(1) of Act of 1976. The return submitted under section 6(1) is
Annexure P-6 clearly contained that the same though submitted by
Bhagwan Patil but showing the name of owner Kamla Bai and her
possession also been ascertain. There is acknowledgment of the server
apprising the competent authority that the draft statement and copy of
notice could not be served upon the owner of the land and that document
is Annexure P-7, copy of the notice is Annexure P-8, in which the
endorsement of the server is also there i.e of 25.11.2018 that the notice
got served upon the son of Bhagwan Patil but he refused to accept the
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SALUNKE
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same. As averred by the petitioner, it is clear that the draft statement was
neither served upon the petitioner namely Smt. Kamla Bai nor upon
Bhagwan Patil.
5. The petitioner has also filed order sheet dated 13.03.1980,
22.10.1980, 13.11.1980 firstly to substantiate that the final statement
was not served upon the petitioner and also to Bhagwan Patil. As per
petitioner, there is no acknowledgment and endorsement showing that
the final statement was served upon the petitioner, but in the order sheet,
it is shown that no objection received even after service of final
statement in Case No. 42/81 notice under section 10(1) of Act of 1976
shown to be issued in the name of Bhagwan Patil. Again from the order
sheets, it is shown that notice under section 10(1) got served but no
objection received. Then further notice under section 10(3) of Act of
1976 be issued notice under section 10(3) was published in the State
Gazette and that section 10(5) notice was issued, the copy of the notice
of section 10(5) is part of the petition as Annexure P-12. But as per
petitioner the said notice did not contain signature of any authority,
notice is dated 15.01.1982 issued in the name of Bhagwan Bhanji Patil.
There is no report about the service of said notice, copy of notice is
Annexure P-13 filed by the petitioner showing that this notice contains
fabricated signature of Bhagwan Patil and possession letter was also
prepared showing that out of 6 acres it is 5.72 acre land has been taken
without there being any demarcation report nor any field book was
prepared and even in the said proceeding name of present petitioner was
not shown. As per the petitioner, physical possession never been taken
and land is still in possession of the petitioner. It is averred by the
petitioner that the possession letter dated 04.05.1982 is silent with
regard to the fact as to on what date notice for taking possession had
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SALUNKE
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been issued. It is also not clear whether any notice under section 10(6)
of Act of 1976 issued because possession letter clearly reveals that
Bhagwan Patil has not handed over the possession, but opposed the
same and possession had been taken over in his absence. As per
petitioner, the revenue entries and khasra entries from 1980-81 to 1992-
93 (Annexure P-3 to Annexure P-5) clearly reveals that the petitioner
Kamla Bai was in possession of the said land. Those revenue entries
filed by the petitioner just to substantiate that no proceeding factually
initiated under the provision of Act of 1976 and no possession of the
said land was taken by any of the authorities, the land was in possession
of the petitioner and still same is being cultivated by the petitioners.
6. According to petitioner, the provisions of Act of 1976
repealed on 22.03.1999, when parliament has passed an Act i.e Urban
Land (Ceiling and Regulation) Repeal Act, 1999 (in short "Repeal Act
of 1999), the repeal act notified and came into effect in the State of
Madhya Pradesh w.e.f 17.02.2000 and as such land of the petitioner
cannot be considered to be vested in the State because that was illegally
shown vested in the State, whereas possession is still of the petitioner
and as such all those proceedings initiated under the provisions of Act of
1976 be declared abated.
7. Counsel for the petitioner has also submitted that not only
on the ground that the proceeding has not been initiated in the name of
the owner of the land, but even otherwise in the light of law laid down
by the Supreme Court in case of State of Uttar Pradesh Vs. Hariram
(2013) 9 SCC 280, in which it is clearly held that the proceeding under
section 10(5) and 10(6) of the Act of 1976 is mandatory requirement to
be followed before taking possession. It is clear from the record that no
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SALUNKE
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notice under section 10(6) was issued and even no notice under section
10(5) was served upon the petitioner. The fact with regard to fabricated
signature of Bhagwan Patil over the possession letter has not been
denied by the respondent/State but also the fact that the said possession
letter itself contains the possession was denied and forcibly taken,
meaning thereby notice under section 10(6) was to be issued but there is
no reference of the same.
8. In number of cases, this Court in writ petition and also the
Division Bench has approved this position and also approve the fact that
notice under section 10(5) and 10(6) of the Act of 1976 is mandatory
requirement. The view taken by the Supreme Court in case Hariram
(supra) is 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
Rajendra 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
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Signed by: TARUN KUMAR
SALUNKE
Signing time: 10/9/2023
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"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
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SALUNKE
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(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
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SALUNKE
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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. 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 the land holder being dispossessed
without notice, therefore, the word 'may' has to be read as
'shall'.
38. The above reasoning is in consistence with the
Directions 1983 which has been issued by the State
Government in exercise of powers conferred under Section
35 of the Act. Directions clearly indicate that the procedure
for taking possession of the vacant land in excess of the
prescribed ceiling limit, which reads as under:
The Uttar Pradesh Urban Land Ceiling (Taking of
Possession payment of amount and Allied Matters)
Directions, 1983 (Directions issued by the State Government
under Section 35 of the Act, 1976):
"In exercise of the powers under Section 35 of the Urban
Land (Ceiling and Regulation) Act, 1976 (Act No.33 of
1976), the governor is pleased to issue the following
directions relating to the powers and duties of the Competent
Authority in respect of amount referred to in Section 11 of
the aforesaid Act to the person or persons entitled thereto:
1. Short title, application and Commencement -These
directions may be called the Uttar Pradesh Urban Land
Ceiling (Taking of Possession Payment of Amount and
Allied Matters Directions, 1983)
2. The provisions contained in this direction shall be
subjected to the provisions of any directions or rules or
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SALUNKE
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orders issued by the Central Government with such
directions or rules or orders.
3. They shall come into force with effect from the date of
publication in the Gazette.
2. Definitions:- xxx xxx xxx
3. Procedure for taking possession of vacant Land in
excess of Ceiling Limit-(1) The Competent Authority will
maintain a register in From No.ULC -1 for each case
regarding which notification under sub-section (3) of Section
10 of the Act is published in the Gazette.
4. (1) xxx xxx
(2) an order in Form No.ULC-II will be sent to each
land holder as prescribed under sub-section (5) of Section
109 of the Act and the date of issue and service of the order
will be entered in Column 8 of Form No.ULC-1.
(3) On possession of the excess vacant land being taken in
accordance with the provisions of sub-section (5) or sub-
section (6) of Section 10 of the Act, entries will be made in a
register in Form ULC-III and also in Column 9 of the Form
No.ULC-1. The Competent Authority shall in token of
verification of the entries, put his signatures in column 11 of
Form No.ULC-1 and Column 10 of Form No.ULC-III.
Form No.ULC-1
Register of Notice u/s 10-(3) and 10(5)
(1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11)
SL.No SL No. of Case Date of Land to Date of Remar Signature
register of numb Notificati be taking ks of
receipt Sl er on under acquired over competen
No. of Section Village possessio t
register of 10(3) Mohali n authority
Taking
possessio
n
Form NO. ULC-II
Notice order u/s 10(5)
(See clause (2) of Direction (3)
In the Court of Competent Authority
U.L.C. ...............
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SALUNKE
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No..................... Date ..................
Sri/Smt...............................T/o ........................................
In exercise of the powers vested un/s 10(5) of the Urban Land Ceiling
and Regulation Act, 1976 (Act No.33 of 1976, you are hereby informed
that vide Notification No....... dated ..... under section 10(1) published
in Uttar Pradesh Gazette dated ...... following land has vested
absolutely in the State free from all encumbrances as a consequence
Notification u/s 10(3) published in Uttar Pradesh Gazette dated .......
Notification No......... dated .... With effect from .......... you are
hereby ordered to surrender or deliver the possession of the land to the
Collector of the District Authorised in this behalf under Notification
No.324/II-27- U.C.77 dated February 9, 1977, published in the gazette,
dated March 12, 1977, within thirty days from the date of receipt of this
order otherwise action under sub-section (6) of Section 10 of the Act
will follow.
Description of Vacant Land
Location Khasra No. Area Remarks
identification
(1) (2) (3) (4)
Competent Authority
...............................
...............................
Dated...............................
No.
Copy forwarded to the Collector ............ with the request that
action for immediate taking over of the possession of the above detailed
surplus land and its proper maintenance may, kindly be taken an
intimation be given to the undersigned along with copy of certificate to
verify.
Competent Authority
.....................
...................."
39. The above-mentioned directives make it clear that
sub-section (3) takes in only de jure possession and not
de facto possession, therefore, if the land owner is not
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SALUNKE
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surrendering possession voluntarily under sub-section (3)
of Section 10, or surrendering or delivering possession
after notice, under Section 10(5) or dispossession by use
of force, it cannot be said that the State Government has
taken possession of the vacant land.
40. The scope of Act 33 of 1976 came up for
consideration before this Court on few occasions,
reference may be made to certain judgments, even though
there has been no elaborate discussion of the provision of
the Act and its impact on the Repeal Act. Reference may
be made to Pt. Madan Swaroop Shrotiya Public
Charitable Trust v. State of U.P. and Others (2000) 6 SCC
325, Ghasitey Lal Sahu and Another v. Competent
Authority, Under the Urban (Ceiling and Regulation Act,
1976), U.P. and Another (2004) 13 SCC 452, Mukarram
Ali Khan v. State of Uttar Pradesh and Others (2007) 11
SCC 90 and Vinayak Kashinath Shilkar v. Deputy
Collector and Competent Authority and Others (2012) 4
SCC 718.
Effect of the Repeal Act
41. Let us now examine the effect of Section 3 of the
Repeal Act 15 of 1999 on sub-section (3) to Section 10 of
the Act. The Repeal Act 1999 has expressly repealed the
Act 33 of 1976. The Object and Reasons of the Repeal
Act has already been referred to in the earlier part of this
Judgment. Repeal Act has, however, retained a saving
clause. The question whether a right has been acquired or
liability incurred under a statute before it is repealed will
in each case depend on the construction of the statute and
the facts of the particular case.
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. 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 land owner or holder can claim the benefit
of Section 3 of the Repeal Act. The State Government in
this appeal could not establish any of those situations and
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hence the High Court is right in holding that the
respondent is entitled to get the benefit of Section 3 of the
Repeal Act.
43. We, therefore, find no infirmity in the judgment of the
High Court and the appeal is, accordingly, dismissed so
also the other appeals. No documents have been produced
by the State to show that the respondents had been
dispossessed before coming into force of the Repeal Act
and hence, the respondents are entitled to get the benefit
of Section 3 of the Repeal Act. However, there will be no
order as to costs."
9. The Division Bench in case of State of M.P & ors Vs.
Rajubai & ors in Writ Appeal No. 558 of 2016 by order dated
06.07.2017 relied upon case of Hariram(supra) has also observed as
under:-
"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
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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:
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Signed by: TARUN KUMAR
SALUNKE
Signing time: 10/9/2023
10:36:25 AM
"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
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"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
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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
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land will not vest with the State Government. Therefore, the land
in question would not vest with the State Government.
13. In view of the above circumstances, we do not find any error
in the order passed by the learned Single Bench so as to warrant
any interference of this court in the present Intra-Court Appeal."
10. The order passed in case of Rajubai (supra) was further
assailed before the Supreme Court by the State Government, but that
SLP of the State has been dismissed. The Division Bench further in Writ
Appeal No.734 of 2008 (Dhaniram (dead) through LRs Vs. State of
M.P & others) by order dated 18.07.2012 has considered the effect of
Repealed Act, 1999 in respect of de facto possession and observed as
under:-
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"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 timeand 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
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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].
9. Now the question remains whether there were any laches on the
part of the appellants in filing the writ petition? So far as the
contention of respondents that the possession was already taken
on 3.3.1992 and the petition was filed belatedly, is concerned, we
have already recorded the finding that no notice under Section
10(5) of the Act was served upon the appellants and in fact the
appellants were in possession of the land, then there were no
laches on the part of the appellants in filing the writ petition. The
learned Single Judge has dismissed the writ petition without
considering the merits of the case merely on the ground of laches
which order cannot be affirmed. In aforesaid circumstances, we
find that the proceedings were pending as on the date when the
Repeal Act had come into force. The appellants were in
possession of the land on the date when this appeal was filed. So
the appellants are entitled for the benefit of the Repeal Act, 1999".
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11. The Supreme Court has also according to the petitioner in
(2015) 2 SCC 390 (Dr. Somayajulu Secretary Vs. Atili Appala Swamy
& ors) has also considered the impact of Repeal Act, 1999 and observed
as under:-
"Effect of Repealing Act 1999:
24. Urban Land (Ceiling and Regulation) Repeal Act, 1999 was
adopted in the State of Andhra Pradesh with effect from
27.3.2008. First respondent contends that since possession was
not taken, ULCR repeal Act 1999 is squarely applicable and land
ceiling proceedings are abated. First respondent relies upon
Sections 3 and 4 of the Repeal Act, 1999. It would, therefore, be
appropriate to refer to Sections 3 and 4 of the repeal Act, 1999
which read as under:-
"3. Saving.- (1) The repeal of the principal Act shall not affect-
(a) the vesting of any vacant land under sub-section (3) of Section
10, possession of which has been taken over the State
Government or any person duly authorized by the State
Government in this behalf or by the competent authority;
(b) the validity of any order granting exemption under sub-section
(1) of Section 20 or any action taken thereunder, notwithstanding
any judgment of any court to the contrary;
(c) any payment made to the State Government as a condition for
granting exemption under sub-section (1) of Section 20.
(2) Where-
(a) any land is deemed to have vested in the State Government
under sub-section(3) of Section 10 of the principal Act but
possession of which has not been taken over by the State
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Government or any person duly authorized by the State
Government in this behalf or by the competent authority; and
(b) any amount has been paid by the State Government with
respect to such land then, such land shall not be restored unless
the amount paid, if any, has been refunded to the State
Government.
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 proceedings
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."
25. Contention advanced at the hands of the Government and the
appellant was that recognizing possession of the appellant-society
and the allottees to whom the plots were allotted, Government
issued GO.Ms.1900 dated 20.12.2006 which is much prior to the
adoption of repeal Act in the State of Andhra Pradesh and
therefore, repeal Act is not applicable to the said 6.00 acres
allotted to the appellant-society. In so far as remaining extent,
contention of the Government is that the actual possession of the
same was taken over by a Panchnama dated 4.1.2008 much before
the repeal Act and therefore, repeal Act is not applicable.
26. In State of U.P. vs. Hari Ram, (2013) 4 SCC 280, this Court
considered the question with regard to "deemed vesting" under
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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's case this Court held 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 U.P. [(1977) 1 SCC 155], 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
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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."
First respondent placed much reliance on the observations in
paragraph (42) of Hari Ram's case 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
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above observations in Hari Ram's case are squarely applicable
and by virtue of the repeal Act, land ceiling proceedings stood
abated."
12. That State has filed the reply taking stand therein the issue
involved in the said case is squarely covered with the case in which the
State has filed the detailed reply in W.P no. 7121 of 2016 (Pramod
Kumar Vs. State of M.P & others) in which the State has filed the
detailed return and same has been adopted by the State in the present
case also. In the reply submitted by the State in W.P No. 7121 of 2016,
they have taken general stand that the proceeding of vesting of land
under Act of 1976 was initiated against the land of the petitioner in
accordance with law and it is also submitted that petition is against
show-cause notice and as per judgment of the Supreme Court only
against show-cause notice petition cannot be filed.
13. Further from the perusal of the stand taken by the
respondent/State in the return submitted in W.P no. 7121 of 2016, it can
be easily gathered that the State without examining the fact of the
present case relied upon return filed in another case. However, it appears
that the said case was not on same footing but from the documents filed
along with the petition, it is clearly gathered that in none of the
documents, the name of the owner of the land namely Kamla Bai is
shown and all proceedings relating to the land in question initiated in the
name of Bhagwan Patil and the revenue record that too upto 1992-93
showing the land in possession of the petitioner despite asking the State
to submit the original record, they have not filed the record of the case.
14. Shri Girish Kekre -Government Advocate although asked
by this Court to submit the record, but still record is not available, it
indicates that the State did not have sufficient material to show that the
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proceeding of Act of 1976 in relation to the land in question was
properly initiated. There is no specific denial of the documents
submitted by the petitioner and placed reliance.
15. After hearing the submissions of counsel for the parties and
perusal of the record, specially documents relating to the return
submitted under section 6 and further proceedings initiated under the
provisions of Act of 1976, I have no hesitation to say that all proceeding
initiated by the respondent authorities are illegal for the reason that it
was done without giving any notice to the land owner. The authorities
proceeded in the matter as if land is owned by Shri Bhagwan Patil and
authorities not even cared to peruse the record to examine the same so as
to ascertain whether copy of the statement submitted under section 6 of
Act of 1976 by the land owner or by some other person. From the
complete record and documents i.e the return submitted under section 6
and notice issued under section 10(5) name of the land owner Kamla
Bai has not been used and there is no endorsement about service of any
notice upon the land owner, the petitioner therefore, rightly raising
grievance that the complete proceeding of Act of 1976 is void ab initio
not against the present owner, who possessed the said land despite the
fact that in the statement submitted under section 6 the name of land
owner and her possession is shown but even though land owner has
never been noticed and proceeding whatsoever shown to have been
initiated was in the name of Bhagwan Patil.
16. Under such circumstance, I have no hesitation to say that
when no proceeding under provision of Act of 1976 has been initiated in
the name of land owner or a person possessing the land, the said
proceeding in the eyes of law is not sustainable and all consequential
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action of the said proceeding cannot be held to be legal and even though
in the present case, the petitioner is claiming that the land is still in
possession of the petitioner, the respondent even not filed proper reply
denying the averments made by the petitioner.
17. The Supreme Court in case of Naseem Bano (Smt) Vs.
State of U.P & others reported in 1993 Supp. (4) SCC 46 has observed
as under:-
"9. The aforesaid reply would show that on behalf of respondents
Nos. 1 to 4, it was not disputed that 40% posts which have to be
filled up by promotion had not been filled up and the denial of
promotion to the appellant was justified on the sole ground that she
was not qualified to be promoted to L.T. grade. This shows that in
the pleadings before the High Court, there was no contents on the
question that the post of L.T. grade which was sanctioned on
August 29,1977 was required to be filled up by promotion for the
reason that 40% posts had not been so filled. Even though there
was no contest on this question the High Court has gone into it and
has held that the appellant has failed to establish her case that at
the time of the appointment of respondent No. 6 by direct
recruitment 40% of the total number of posts in the college were
not filled up by promotion as prescribed by Regulation 5(2)(a) of
the Regulations. Since no dispute was raised on behalf of
respondents Nos. 1 to 4 in their reply to the averments made by the
appellant in the writ petition that 40% of the total number of posts
had not been filled by promotion inasmuch as the said averments
had not been controverter the High Court should have proceeded
on the basis that the said averments had been admitted by
respondents."
18. Further in case of Sushil Kumar Vs. Rakesh Kumar
reported in AIR 2004 SCC 230 has observed as under :-
"69. In terms Order VIII, Rule 3, a defendant is required to deny or
dispute the statements made in the plaint categorically, as an
evasive denial would amount to an admission of the allegation
made in the plaint in terms of Order VIII, Rule 5 of the Code of
Civil Procedure.
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70. Under Section 58 of the Indian Evidence Act a fact admitted
need not be proved."
19. In the light of law laid down by the Supreme Court is cases
of Naseem Bano (supra) and Sushil Kumar (supra), I am also of the
opinion that if there is no specific denial of the factual aspect then it is
deemed that whatever facts mentioned and not denied are deemed to be
correct.
20. Thus, this Court is of the opinion that the proceedings of
Act of 1976 issued in relation to the land bearing Khasra No.399/2, area
measuring 5.72 acres out of 6.00 acres as surplus, situated in village
Barkheda Pathani, Patwari Halka No.19, Tehsil Hazur District Bhopal
(M.P) owned and possessed by the original owner Kamla Bai is declared
illegal and set aside. The State Government is therefore directed to
correct the revenue entries if the name of the petitioner is deleted in the
revenue record, the same be restored and name of State be removed
from the revenue records because the land of the petitioner is not vested
in the State under the provisions of Act of 1976. In view of the
provisions of Repeal Act 1999, the proceedings of Act of 1976 is
therefore, abated. Petition is allowed.
21. In view of the aforesaid observation, directing the
respondent/Additional Collector, Bhopal (respondent no.2)/Collector
Bhopal/competent authority to correct the revenue record within a
period of 60 days from the date of submitting a copy of this order.
Accordingly, the petition is allowed. No order as to cost.
(SANJAY DWIVEDI)
JUDGE
tarun/
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