Madhya Pradesh High Court
Shyamsunder vs The State Of Madhya Pradesh on 7 August, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
-1-
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND
DHARMADHIKARI
&
HON'BLE SHRI DUPPALA VENKATA RAMANA
ON THE 7th AUGUST, 2024
WRIT APPEAL No. 1018 of 2024
SHYAMSUNDER AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri V.K.Jain, Senior counsel with Shri Vishal Baheti, learned
counsel for the appellants.
Ms. Archana Kher, Addl. Advocate General for the
respondent/State.
Shri K.N.Airen, learned counsel for the respondent No.4.
Reserved on : 19.07.2024
Pronounced on : 07.08.2024
__________________________________________________________ ____
JUDGMENT
Per: Justice Sushrut Arvind Dharmadhikari
Heard finally with the consent of the parties.
This writ appeal under Section 2(1) of the Madhya Pradesh Uchha
Nayayalaya (Khand Nyaypith Ko Appeal) Adhiniyam 2005 has been
filed by the appellants assailing the order dated 18.03.2024 passed in
W.P.No.9436/2012 whereby the petition filed by the present appellant
was dismissed.
2. The brief facts of the case is that the appellants herein had
purchased the below mentioned property by way of registered sale deed
from Kumari Sharda Raje D/o Maharaja Tukoji Rao Pawar, erstwhile
ruler of Indore. The description plot, area, survey numbers, date of sale
deeds are as under:-
Appellant No.1: Plot No.48, South Avenue, admeasuring 3885 sq.
feet, comprised in Survey No.56 of Village - Tejpur Gadbadi,
purchased vide registered sale deed dated 28.03.1997.
Appellant No.2: Plot No.49, South Avenue, admeasuring 3150 sq.
feet, comprised in Survey No.56 of Village - Tejpur Gadbadi,
purchased vide registered sale deed dated 04.04.1997.
Appellant No.3: Plot No.73, South Avenue, admeasuring 3500 sq.
feet, comprised in Survey No.99/1 of Village - Tejpur Gadbadi,
purchased vide registered sale deed dated 04.12.1996.
Appellant No.4: Plot No.28, South Avenue, admeasuring 3200 sq.
feet, comprised in Survey No.58, 59 of Village - Tejpur Gadbadi,
purchased vide registered sale deed dated 24.02.1997.
Appellant No.5: Plot No.47, South Avenue, admeasuring 3395 sq.
feet, comprised in Survey No.56 of Village - Tejpur Gadbadi,
purchased vide registered sale deed dated 04.04.1997.
Appellant No. 6: Plot No.29, South Avenue, admeasuring 3600
sq. feet, comprised in Survey No.58 of Village - Tejpur Gadbadi,
purchased vide registered sale deed dated 21.01.1997.
3. Subsequent to the execution of the sale deed, the Collector District
Indore vide notices issued in the month of September, 2001 informed the
appellants that as per the proceedings commenced in 130/अ-90/C-1/76-
77 the possession of the aforementioned plots had been taken by the
State Government by considering it as an excess land under the
provisions of Urban Land (Ceiling & Regulations) Act, 1976
(hereinafter referred to as the 'Act of 1976') and further if the appellants
wish to get their plots regularised as per the policy decision of the State
Government dated 03.02.2000, they were required to pay the amounts as
prescribed and required in the notice. As soon as the appellants were
made aware of the fact that their plots were under the scan of the Act of
1976 due which the possession of the said land had already been
obtained by the State Government by way of paper Panchanama, the
present appellants sought enquiry into the matter because the physical
possession of the plots were never obtained by the State Government.
Moreover, neither the present appellants nor their predecessors in title
were served any notice under Section 10(5) of the Act of 1976 and till
date they are holding the physical possession of the aforementioned
plots. Subsequently, on initiation of proceedings by the District
Collector, Indore for getting their plots regularized, the appellant No. 1
deposited a sum of Rs. 5,05,477/-, appellant No. 2 deposited a sum of
Rs. 4,09,847/-, appellant No. 3 deposited a sum of Rs. 4,55,385/- and
similarly appellants No. 4, 5 and 6 deposited Rs. 4,16,352/-, Rs.
4,41,723/- and 4,63,396/- respectively.
4. Thereafter, appellants were under assumption that their plots will
be regularized in terms of the policy dated 03.02.2000 of the State
Government. But no such action was taken due to which the appellants
submitted representations in the Samadhan Shivir in 2004, 06.06.2006,
22.02.2008, 27.02.2008, 12.03.2009 and 14.07.2010 which evoked no
response.
5. Despite the representations submitted by the appellants, the State
Government did not regularize their plots, therefore, being aggrieved the
appellants filed Writ Petition No. 9264/2011 before this Court which
was disposed of vide order dated 09.04.2012 directing the appellants to
file application before the State Government for expeditious disposal of
the representation and also directed the Committee to take decision
expeditiously preferably within a period of 90 days. Copy of the same
was served by the appellants to the State Government on 14.04.2012.
6. In compliance of the order dated 09.04.2012, the
respondents/State after expiry of the period of 90 days proceeded with
the representations filed by the appellants and fixed a date for hearing on
25.07.2012. After the hearing, the respondents No. 2, 3 and 4/State
passed an order dated 28.08.2012 by which the representation of the
appellants were rejected on the sole ground that the policy decision
dated 03.02.2000 applies only to constructed houses and is not
applicable for the plots.
7. Being aggrieved by the aforesaid order, appellants again
approached this Court by way of filing Writ Petition No. 9436/2012
which was dismissed by the learned Single Judge on 18.03.2024 by
passing the following order:
''08.............. According to the respondents, the
petitioners did not deposit the lease rent within 30
days' from the date of notice, therefore, they have not
right to claim the benefit of the aforesaid circular.
09. Even otherwise, the petitioners have not
impleaded Kumari Shari Raje and Amit Priya Grih
Nirman Society to establish that the sale deeds are
valid, therefore, their title cannot be recognized.
Subject land had already been vested with the State
Government. Since it was a open land, therefore, the
petitioners have unauthorizedly purchased the land
saying that they are in possession. They have not
filed any proof to establish that they have constructed
their house and payment property tax to the
Government. Hence, vacant land / plots cannot be
treated to be in possession of the petitioners. Hence,
no case for interference with the impugned order is
made out.
10. In view of the above, Writ Petition stands
dismissed.''
8. The aforesaid order dated 18.03.2024 passed by the learned Single
Judge has been challenged by the appellants by filing the present writ
appeal.
9. However, it is pertinent to mention here that pursuant to the order
dated 18.03.2024, the Sub Divisional Officer, Rau Division, District
Indore in Case Nos. 114/अ-90/2000-01, 115/अ-90/2000-01, 139/अ-
90/2000-01, 95/अ-90/2000-01, 113/A-90/2000-01, 96/अ-90/2000-01 has
passed the orders dated 26.03.2024 against the appellants. Operative
portion of the order reads as under :
'' करण म संल न द तावेजो , तहसीलदार , राज व िनर क के ितवेदन का
अवलोकन कया गया। मेरे ारा वयं मौके का िनर ण कया गया जसम पाया
क मौके पर कसी कार क अवैध कालोनी वकिसत नह ं है और ना ह अवैध
कालोनी के सा य /
व मान है । मौके पर अनावेदक कोई भी य िनवासरत ् नह ं
है । वादो त भूिम सव नंबर 56, 57, 58, 59, 99/1 कुल रकबा 4.967
हे टे यर जसका वतमान गाईड लाईन वे यू 118.21 करोड़ है जो क शहर के
म य थत होकर बहुमू य भूिम होकर बाजार मू य लगभग 400 से 450 करोड़
पये है । उ त बहुमू य भूिम का उपयोग शासन क कसी भी योजना / वभाग के
कायालयीन उपयोग म कया जा सकता है । अनावेदक ारा अ य अनावेदको एवं
-
भू मा फयाओं के साथ संगनमत होकर इस मह वपूण शासक य भूिम को अवैध
कालोनी का ह सा दखाकर शासन के प रप मांक एफ /1-34/99/सात -
9/भोपाल दनांक 03.02.2000 के तहत गलत तर के से विनयिमतीकरण
चाहते है जससे मह वपूण शासक य भूिम पर अवैध क जा कर आिथक लाभ ा त
कर सके।
: म य दे श प
अत मांक एफ /1-34/99/सात -9/भोपाल दनांक
03.02.2000 के तहत अनावेदक को विनयिमतीकरण क पा ता नह ं आने से
करण इसी तर पर िनर त कया जाता है । करण म अ य कायवाह अपे त
नह ं होने से करण न तीब होकर दा खल रकाड है । ''
10. Shri V.K.Jain, learned Senior Counsel appearing for the appellants
contended that while passing the impugned order, learned Single Judge
failed to consider the fact that the land was never vested in the State
Government as actual physical possession of the said plots was never
taken from the appellants. The demand notices were issued by the
respondents for regularization of their title and appellants have deposited
the amount as demanded by the respondents way back in the year 2005,
but no order for regularization of their sale deed was issued. He further
contended that it has wrongly been held that the policy dated 03.02.2000
has no application in case of plots since there was no construction. It is
contended that the said circular applies to the plots as well since as they
are located in a colony namely 'South Avenue' and in any case the
appellants had purchased the said plots. It is further contended that no
notice u/S 10(5) of the Act of 1976 was ever issued to the appellants
which is mandatory.
11. Learned Senior Counsel further contended that the learned Single
Judge has illegally and irrelevantly gone into the question that whether
the power of attorney had the right to sell and the Society was registered
or not. Kumari Sharda Raje Holkar executed a power of attorney in
favour of Amrit Priya Grih Nirman Society who sold the subject plots to
the appellants. The sale deeds of the said plots have not been disputed
by the respondents, therefore, the question with regard to legality of
power of attorney of the seller need not be examined or adjudicated by
the learned writ Court in case of regularization of plots developed in the
colony. Hence, it is prayed that the appeal be allowed and the order
impugned dated 18.03.2023 be quashed with a further direction to
respondent No.3 to execute the lease deed of the plots in favour of the
appellants.
12. Per contra, learned counsel for the respondents/State has opposed
the contentions of the appellants and contended that the appellants have
utterly failed to establish the source in law available to Kumari Sharda
Raje Holkar for transecting the subject property after issuance of
notification under Section 10(1) on 25.06.1993 under the Act of 1976.
Thereafter, proceedings under the Act of 1976 had been drawn pursuant
to which possession over the subject land has been taken over by
drawing possession Panchnama dated 28.09.1999 specifically
mentioning that the possession has been physically taken over by the
Tehsildar over the site. Therefore, the appellants cannot raise the plea
of non-taking of possession. Learned counsel for the State further
contended that the appellants never raised any construction upon the
surplus declared land to the exception of decision dated 03.02.2000.
The said aspect has elaborately been dealt with by the respondents while
passing order dated 26.03.2021. Therefore, the appeal is liable to be
dismissed.
13. Heard learned counsel for the parties and perused the record.
14. It is not in dispute that the plots in question have been purchased
by the appellants herein by way of registered sale deed from Kumari
Sharda Raje D/O Maharaja Tukoji Rao Pawar and on initiation of
proceedings by the Collector, Distt. Indore for getting of title of the
plots regularized, adhering to the said notices, they have paid the
requisite amount of lease rent as mentioned above.
15. The first and foremost question that crops up for consideration is
whether constructed houses are considered for regularization of title or
plots are also included. Clause 4 of the circular unveils the answer to the
same. For ready reference and convenience, Clause 4 of the said
circular is reproduced below:
4- उ त बाजार दर के आधार पर िन नां कत या के अनुसार
अवैधािनक प से दनांक
4-1-2000 क थित म िनिमत
edkua@Hkw[k.Mksa dh fu;fefrdj.k O;oLFkkiu fd;k tk,xkA
¼1½ जो अित ामक भूख ड धारा आयकर का भुगतान करते है
उनसे उ त बाजार दर पर संग णत यािध क रािश ली जाए एवं
भूिम योजन के अनुसार आवासीय उपयोग के िलए यािध का 5
ितशत भू -भाटक तथा गैर आवासीय योजन के िलए 7-5 ितशत
वा षक भू -भाटक िनधा रत कया जाए।
¼2-1½ जो अित ामक भू -ख डधार आयकरदाता नह है एवं जसके
पास 2400 वगफुट से कम ै फल का भूख ड है उससे उ त
बाजार दर क आधी दर पर या ज क गणना क गणना क
जाए . क तु वा षक भू -भाटक कर िनधारण उपरो त क डका ¼1½
अनुसार कया जाए।
¼2-2½ जन अित ामक भू -ख डधा रय के पास 2400 वगफुट से
अिधक ै फल के भू -ख ड है उनसे उपयु त क डका ¼1½ अनुसार
या ज क रािश ली जाए एवं तदनुसार वा षक भू &भाटक का
िनधारण कया जाए।
¼3½ गर बी रे खा के नीचे जीवन यापन करने वाले एवं अनुसूिचत
जनजाित के अित ामक भू -ख डधा रय से रयायती दर पर
या ज क रािश ली जाए एवं तदनुसार वा षक भू -भाटक िनधा रत
कया जाए। इस रयायती दर का िनधारण उ त सिमित ारा
कया जाएगा।
¼4½ उ त े णय म आने वाले अित ामक भू -ख डधार के सफाई
कामगार होने क थित म उनसे उपयु त दर से आधी दर पर
या ज क गणना क जाएगी एवं तदनुसार वा षक भू &भाटक का
िनधारण कया जाएगा A
¼5½ उपयु तानुसार िनधा रत या ज क गणना येक
अित ामक भू -ख डधार के आिधप य के भू -ख ड के संबंध म क
जाए। तदप
ु ंरात अित ामक को नो टस दया जाए जसम िन त
दनांक तक नो टसी के दनांक से 30 दवस क अनािधक अविध
दे ते हुए उ त रािश जला कायालय म जमा करने एवं ऐसा न
करने पर अ य िन द ट दनांक तक ¼ नो टस क दनांक से द
गई 30 दवस क अविध के प चात ् 15 दवस के भीतर क
सु वधाजनक कोई ितिथ ½ अित मण क वे छापूवक हटाने के
िनदश दये जाये। िन द ट दनांक तक रािश जमा न करने एवं
क जा न हटने पर उसका अित मण क वे छापूवक हटाने के
िनदश दये जाये। िन द ट दनांक तक रिश जमा न करने एवं
क जा न हटने पर उसका अित मण हटाया जाए। उसके साथ ह
क जा हटने के िलए िन द ट दनांक से वा तव म क जा हटाने के
दनांक तक संबंिधत अित ामक से दा खल दर पर कराया
¼ संग णत आिथक भू -भाटक का 10 गु .kk½ वसूल कया जाए A
16. From the language of circular, it is clear that in clause 4 the words
'houses/plots' have been used and therefore, the objection as regards the
regularization of title of only constructed houses is over ruled as the
circular itself envisaged the word houses/plots and, therefore,
respondents who are having plots falls under the purview of the said
circular.
17. Secondly, proceedings u/S 10(5) of the Act of 1976 is mandatory
requirement to be followed before taking possession. It is clear from the
record that no notice u/S 10(6) was issued and even no notice u/S 10(5)
was ever served upon the appellants.
18. In number of cases, writ Court in writ petitions as well as Divsion
Bench in writ appeals has approved this position and also approved the
fact that notice u/S 10(5) of the Act of 1976 is mandatory requirement
as held by the Apex Court in the case of State of Uttar Pradesh Vs.
Hariram reported in (2013) 9 SCC 280 wherein the view taken by the
Apex Court is as under:
"Voluntary Surrender
28. 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."
29. 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.
30. 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
31. 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.
32. 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
33. 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.
34. 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'.
35. 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
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:-
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. (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)
S.No SL No. Case Date Land to Date Remar Signatur
of number of be of ks e of
register notif acquired taking compete
of reciept icati Village over nt
SL No. on Mohali posse authorit
of unde ssion y
register r
of taking Sect
possessio ion
n 10(3
)
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. ...............
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 number 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.
CompetentAuthority
...............................
..............................."
36. 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 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.
37. 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
38. 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.
39. 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 hence the High Court is right in
holding that the respondent is entitled to get the benefit of
Section 3 of the Repeal Act.
40.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."
19. In view of the above, it is settled position that notices u/S 10(5) of
the Act of 1976 are mandatory and which have not ever been served
upon the appellants.
20. So far as the objection raised by the State as regards posession by
drawing paper panchnama is concernerd, the same is an empty
formality as the Apex Court in the case of Hari Ram (supra) in the
context of Act, has clearly held that de facto possession is required to be
taken by the State and not de jure. However, in the present case, State
has never taken physical possession of the plots in question and
appellants are in possession of the said plots since they purchased the
aforesaid plots and therefore with effect from 07.02.2000 when the
Urban Land (Ceiling & Regulation) Repeat Act,1999 was adopted by the
State of M.P. They retained ownership and possession of the said plots
and therefore, respondents were not justified in issuing notices for
regularization of title of plots in the name of appellants. Despite that
when the appellants deposited the amount as demanded, respondents on
the one hand kept mum for years together and did not act upon the
several representations submitted by the appellants in various Samadhan
Shivirs on in 2004, 2006, 2008, 2009, 2010 leading to filing of petition
before this Court through which directions were issued for expeditious
disposal of representations submitted by the appellants within stipulated
time. Though representations were adverted too by the respondents, but
against the interest of appellants in the year 2012. The appellants kept
waiting for years together and in the end they have got an order against
them.
21. It is the high-handedness of the State authority that on the one
hand, they are accepting the amount deposited by the appellants in the
year 2004 and on the other hand, after keeping silent for years together
woke up from slumber in the year 2012 when the order dated 28.08.2012
was passed, that too after directions passed by this Court and directed
the appellants to take the lease rent back.
22. On perusal of the order passed by the learned Single Judge, it has
surfaced that the petition was dismissed on twin grounds:
(a) The respondents have though deposited the lease rent, but not within
the precribed time limit of 30 days from the date of notice.
(b) Respondents have not impleaded Kumari Sharda Raje D/O
Maharaja Tukoji Rao Pawar and Amrit Priya Grih Nirman Society as a
party to establish that the sale deed are valid.
23. While dismissing the writ petition filed by the appellants, learned
Single Judge has held that lease rent has been deposited, but belatedly.
It is an admitted position that lease rent in terms of the notice has been
deposited off late in 2004 but certain new guidlines have been laid
down vide circular dated 12.05.2020 by the Revenue Department, State
of M.P. for arrangements of illegal colonies coming under the purview
of the Act of 1976.
Clause 2 of the said circular is as follows:
24. A careful reading of the said clause 2 indicates that in continuance
of the circular dated 03.02.2000, those old cases which are falling under
the purview of the Act of 1976 and a demand has been made by way of
issuance of notices for regularization of title of the plots/houses and a
partial amount has been deposited after lapse of time, the outstanding
lease rent in such cases shall be deposited as per the following
arrangement:
(a) Lease rent as demanded by way of issuance of notice shall
carry interest @ 12% from the date of issuance of notice i.e. in
the year 2001 till one year.
(b) Lease rent for the remaining years i.e.from the year 2002 till
today shall carry interest @ 15%.
25. In the light of the said circular dated 12.05.2020, in continuance
of circular dated 03.02.2000 for regularization of plots/houses falling
within the purview of the Act of 1976, appellants are entitled for
regularization of title of plots on payment of outstanding amount of lease
rent(if any) alongwith interest rates as mentioned above.
26. So far as impleadment of Kumari Sharda Raje D/O Maharaja
Tukoji Rao Pawar and Amrit Priya Grih Nirman Society for establishing
that sale deeds are valid, the same are registered documents and even
have not been disputed by the respondents themselves. If at any point of
time, respondents raised any dispute regarding the same being null and
void, they must have approahced challenging the said sale deeds before
the civil Court which has not been done. Therefore, since there is no
need to go into the veracity of these registered documents, no question
of impleading Kumari Sharda Raje D/O Maharaja Tukoji Rao Pawar and
Amrit Priya Grih Nirman Society arises.
27. In view of the aforesaid discussion, keeping in view the law laid
down by the Apex Court in the case of Hari ram (supra) as well as in
the light of circular dated 12.05.2020, case is made out to allow the
appeal and appellants are entitle for regularization of title on the plots.
Accordingly, writ appeal is allowed with the following directions :
(i) The order passed by learned Single Judge dated 18.03.2024 is
hereby set aside. Consequently, the order passed by the SDO, Rau Distt.
Indore dated 26.03.2024 does not stand and is also set aside.
(ii) Appellants are directed to deposit the outstanding amount of lease
rent alongwith interest in terms of the circular dated 12.05.2020 which is
as follows:
(a) Lease rent as demanded by way of issuance of notice shall
carry interest @ 12% from the date of issuance of notice i.e. in the year
2001 till one year.
(b) Lease rent for the remaining years i.e.from the year 2002 till
today shall carry interest @ 15%.
(iii) After payment of lease rent alongwith interest as mentioned
above, the title of plots be regularized and lease deeds be executed in
favour of the appellants as expeditiously as possible, preferably within
six weeks from the date of deposit of outstanding lease rent(if any)
alongwith interst as directed hereinabove.
(iv) With the aforesaid directions, appeal stands disposed off.
(SUSHRUT ARVIND (DUPPALA VENKATA
DHARMADHIKARI) RAMANA)
JUDGE JUDGE
sh/-
SEHAR Digitally signed by SEHAR HASEEN
DN: c=IN, o=HIGH COURT OF MADHYA
PRADESH BENCH INDORE, ou=BENCH
HASEE
AT INDORE,
2.5.4.20=900ec6fc757798eaeb3df7a328
60bd3298415a4d1c2d91436213f2568c
8f27da, postalCode=452001,
st=Madhya Pradesh,
serialNumber=E7DBBA955B262C04B84
N
13251CE7FB6F0B7DBA610C57F1559C0
8BF6C6F5DD40D4, cn=SEHAR HASEEN
Date: 2024.08.07 17:46:14 +05'30'
