Madhya Pradesh High Court
Mithila vs State Of M.P. on 10 January, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
WRIT PETITION No. 5445 of 2010
MITHILA & ORS.
Versus
STATE OF M.P. AND OTHERS
Appearance:
Shri N.K. Gupta - Senior Advocate with Shri Y P S Rathore -
Advocate for the petitioners.
Shri Sohit Mishra - Government Advocate for the
respondent/State.
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Reserved on 13.12.2024
Delivered on 10.01.2025
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ORDER
By the instant petition filed under Article 226 of the
Constitution of India, the petitioner is seeking following reliefs:-
(i) That the humble petitioners most respectfully prayed that
the writ petition may kindly be allowed and writ of mandamus,
certiorari or any other writ, order or direction in favour of the
petitioners and may kindly be ordered to abate the proceedings
under the ceiling Act 1976 in case No.269/83-84/B-121, 270/83-
84/B-121, 271/83-84/B-121.
(ii) That, the writ of mandamus, certiorari or any other writ
or direction may be issued and may kindly be quash the order
Annexure P/II and P/III.
(iii) That, the possession receipt dated 7.11.86 Annexure R/1
may kindly be quashed and Khasra entry Annexure R/2 may kindly
be set-aside and the respondents may kindly be directed to make the
entry in Khasra in the name of the petitioners in Khasra and
revenue record and deleted the name of the State Urban Land.
(iv) Any other relief which this Hon'ble Court thinks fit may
kindly be awarded in favour of the petitioner in the interest of
justice.
2. The facts leading to filing of the instant petition are that the
petitioners are the owner of the land comprising survey Nos.130 area
0.063 hectare, 131 area 0.042 hectare, 132 area 0.679 hectare, 133
area 0.439 hectare, 134 area 0.021 hectare, 136 area 0.617 hectare,
263 area 0.282, 135 area 0.021 hectare situated in Village Mau,
Gwalior and the petitioners are in continuous possession and are
cultivating the crops. The property is owned by the petitioner by
inheritance. The respondent No.2 started ceiling proceedings against
the petitioners vide case No.269/83-84/B-121, 270/83-84/B-121,
271/83-84/B-121. The father of petitioners filed objections in the
said case, which was rejected by the respondent No.2 vide order
dated 01.03.1984. Thereafter draft statement was submitted on
10.07.1984 and thereupon, the Competent Authority passed an order
dated 21.05.1985 considering the objections raised by the father of
the petitioners and declared 8302.00 sq. m. of land as surplus.
Thereafter notification was issued on 03.06.1985 under Section
10(1) of the Act and notice under Section 10(3) was issued on
30.11.1985 and ultimately the competent authority issued notice
under Section 10(5) of the Act on 03.09.1986 and subsequently, on
07.11.1986, the possession was taken over. Challenging the
aforesaid action on the part of respondents, the present petition has
been filed.
3. Learned Senior counsel for the petitioners has specifically
argued before this Court that the actual physical possession had never been
taken from the petitioners even the symbolic possession referred to in the
counter affidavit cannot be termed as a possession taken in accordance with
law as there is no documentary evidence to demonstrate that for taking
possession any notice were issued and received by the tenure holder. The
possession receipt filed by the respondent/State is only paper formality
which is clearly evident from bare perusal of possession receipt, as the same
does not contain any signature of land owner or any independent witness,
thus, it can be safely said that the State Authority has not taken the actual
and physical possession till date. Earlier, the father of petitioner was in
possession and after the death of father, the petitioners who are legal
representatives are still in possession and are cultivating the crops on the
said land. The father of the petitioner had taken the electricity connection
and the tube well constructed over Khasra No.263 and 136 and are still in
existence and the petitioner is taking the water for crop from the electric
water pump. Learned counsel for the petitioner submits that in view of law
laid down by the Hon'ble Supreme Court in the case of State of U.P. Vs.
Hariram reported in (2013) 4 SCC 280, the proceedings initiated against
the petitioner under the provisions of Urban Land (Ceiling and Regulation)
Act, 1976 are illegal and should be treated to be abated in the wake of
repeal of the Act of 1976 in the year 1999.
4. Per contra, learned counsel for the State submits that notice dated
03.09.1986 issued under Section 10(5) of the Act of 1976 was served upon
the petitioner and when the possession was not handed over, ex-parte
possession was taken on 07.11.1986. It was further submitted that to
demonstrate the possession of the State Government khasra entries of the
years 1999 to 2002 vide Annexure R/2 had been filed alongwith the reply.
Further, since petitioners are making a claim after a period of 24 years, the
petition suffers from delay and latches. It is also submitted that in view of
law laid down by the Hon'ble Supreme Court in the case of State of Assam
Vs. Bhaskar Jyoti Sharma reported in (2015) 5 SCC 321 the petition is
not maintainable as the claim raised by the petitioner is barred by limitation
and the petition, therefore, deserves to be dismissed on the ground of delay
and latches.
5. Heard counsel for the parties and peruse the record.
6. Based upon the facts in the writ petition, the questions to be
determined by this Court are;
i) whether the possession taken by the State Government can be
termed as a valid possession in accordance with law provided under the
Urban Land (Ceiling and Regulation) Act, 1976 ?
ii) whether the possession not taken in-consonance with the
provisions of the Urban Land (Ceiling and Regulation) Act, 1976 can be
termed to be a legal possession ?
iii) whether the subsequent transfer of the land to State Government
can be a sole ground for denying the reliefs to the petitioners ?
iv) what would be the effect of the Repeal Act, in the event the
possession is held not to be taken in accordance with the statutory
provisions ?
v) whether the judgment of Hon'ble Supreme Court in the case of
State of Assam Vs. Bhaskar Jyoti Sarma and others (2015) 5 Supreme Court
Cases 321 can be applied to the present case ?
7. Testing the facts and the law as pleaded and argued by the
counsels at the bar, it is clear that the possession is said to be taken vide the
possession memo annexed dated 07.11.1986. It is further clear that the
possession was not voluntarily handed over by the land owner as the
possession memo does not bear the signatures of the land owner or their
representative. No notice under Section 10(6) of the Act has been issued.
8. The scope and applicability of the provision of Section
10(5) and 10(6) of the Act and the effect of Repeal Act has been duly
considered by Hon'ble the Apex Court in the case of Hari Ram
(Supra) and held as under:
Voluntary Surrender
31. The 'vesting' in sub-section (3) of Section 10, in our
view, means vesting of title absolutely and not possession
though nothing stands in the way of a person voluntarily
surrendering or delivering possession. The court in Maharaj
Singh v. State of UP and Others (1977) 1 SCC 155, while
interpreting Section 117(1) of U.P. Zamindari Abolition and
Land Reform Act, 1950 held that 'vesting' is a word of slippery
import and has many meaning and the context controls the text
and the purpose and scheme project the particular semantic
shade or nuance of meaning. The court in Rejender Kumar v.
Kalyan (dead) by Lrs. (2000) 8 SCC 99 held as follows:
"28. ....We do find some contentious substance in the
contextual facts, since vesting shall have to be a "vesting"
certain. "To vest, generally means to give a property in." (Per
Brett, L.J. Coverdale v. Charlton. Stroud's Judicial Dictionary,
5th edn. Vol. VI.) Vesting in favour of the unborn person and in
the contextual facts on the basis of a subsequent adoption after
about 50 years without any authorization cannot however but
be termed to be a contingent event. To "vest", cannot be termed
to be an executor devise. Be it noted however, that "vested"
does not necessarily and always mean "vest in possession" but
includes "vest in interest" as well."
32. We are of the view that so far as the present case is
concerned, the word "vesting" takes in every interest in the
property including de jure possession and, not de facto but it is
always open to a person to voluntarily surrender and deliver
possession, under Section 10(3) of the Act.
33. Before we examine sub-section (5) and sub-section
(6) of Section 10, let us examine the meaning of sub-section (4)
of Section 10 of the Act, which says that during the period
commencing on the date of publication under sub-section (1),
ending with the day specified in the declaration made under
subsection (3), no person shall transfer by way of sale,
mortgage, gift or otherwise, any excess vacant land, specified
in the notification and any such transfer made in contravention
of the Act shall be deemed to be null and void. Further, it also
says that no person shall alter or cause to be altered the use of
such excess vacant land. Therefore, from the date of publication
of the notification under sub- section (1) and ending with the
date specified in the declaration made in sub-section (3), there
is no question of disturbing the possession of a person, the
possession, therefore, continues to be with the holder of the
land.
Peaceful dispossession
34. Sub-section (5) of Section 10, for the first time,
speaks of "possession" which says where any land is vested in
the State Government under sub-section (3) of Section 10, the
competent authority may, by notice in writing, order any
person, who may be in possession of it to surrender or transfer
possession to the State Government or to any other person, duly
authorized by the State Government.
35. If de facto possession has already passed on to the
State Government by the two deeming provisions under
subsection (3) to Section 10, there is no necessity of using the
expression "where any land is vested" under sub- section (5) to
Section 10. Surrendering or transfer of possession under
subsection (3) to Section 10 can be voluntary so that the person
may get the compensation as provided under Section 11 of the
Act early. Once there is no voluntary surrender or delivery of
possession, necessarily the State Government has to issue
notice in writing under subsection (5) to Section 10 to
surrender or deliver possession. Subsection (5) of Section 10
visualizes a situation of surrendering and delivering
possession, peacefully while subsection (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 subsection (5) to Section 10. Sub-sections (5) and (6),
therefore, take care of both the situations, i.e. taking possession
by giving notice that is "peaceful dispossession" and on failure
to surrender or give delivery of possession under Section 10(5),
than "forceful dispossession" under sub-section (6) of Section
37. Requirement of giving notice under subsections (5)
and (6) of Section 10 is mandatory. Though the word 'may' has
been used therein, the word 'may' in both the subsections 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'.
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 hence the High
Court is right in holding that the respondent is entitled to get the
benefit of Section 4 of the Repeal Act.
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."
The judgment of Hari Ram (supra) has further been
relied upon by a Three Judge Bench of the Apex Court in the
case of D.R. Somayajulu, Secretary, Diesel Loco Shed and
South Eastern Railway House Building Cooperative Society
Limited Visakhapatnam and others vs. Attili Appala Swamy
and others-(2015) 2 SCC 390 and after considering the effect
of the provisions of Repeal Act, restating the principle of the
judgment of Hari Ram (supra) the Apex Court remitted the
matter to the High Court for determination of the issue of
actual physical possession on the date of commencement of the
Repeal Act." and finally observed the impact of non compliance
of mandatory provision of Sections 10(5) and 10(6) of the
Principal Act, which reads as under:-
"15. In the present case the notice under Section 10(5)
of the Act was issued in the name of the holder of land, who
was already died on the date of its issue and the notice was not
issued in the name of persons who were in possession of the
land on drawing the proceedings under Sections 10(5) of the
Act. As discussed presuming service of the said notice on the
dead person, if possession has taken in front of witnesses
exparte, without drawing the proceedings of Section 10(6) of
the Act, the said procedure is not known under the Principal
Act, and as interpreted by the judgment of Apex Court in Hari
Ram (supra). Thus, in my considered opinion, it is to be held
that the actual physical possession of the land bearing Khasra
No.87 and 228/3 area 8536.32 square meters of village Purwa,
Settlement No. 162, Patwari Halka No. 28, Tehsil and District
Jabalpur has not been taken, following the procedure
prescribed, by the competent authority or by Naib Tehsildar
(Nazul), on the date of commencement of the Repeal Act,
therefore, these proceedings shall abate. Accordingly the
questions as posed for discussion are answered in favour of the
petitioners against respondents."
12. It is also pertinent to mention here that against the
decision of this Court, the Supreme Court has dismissed the
SLP No.18278/2017 vide order dated 28.07.2017 in the case of
Gayatri Devi (supra). Accordingly, it is clear that the
mandatory requirement of the provision of Sections 10(5) and
10(6) of the Principal Act have not been followed in the present
case, therefore, the proceeding initiated by the revenue
authorities showing the possession of the land taken in the
ceiling proceeding and the land vested in the State, cannot be
said to be proper and the said proceeding cannot be held to be
legal and in accordance with law.
13. This Court in Writ Petition No.18017/2010 parties
being Smt. Meera Bai and others Vs. The State of Madhya
Pradesh and others, taking note of the law laid down by the
Division Bench of this Court in the case of Ram Kumar Pathak
and others Vs. State of M.P. and others (Writ Appeal
No.734/2008), has also considered the scope of Section 10(5) of
the Principal Act, which reads as under:-
"7. Section 10(5) of the Act provides as under:-
"10. Acquisition of vacant land in excess of ceiling
limit:-
........
(5) Where any vacant land is vested in the State
Government under sub-section (3), the competent authority
may, by notice in writing, order any person who may be in
possession of it to surrender or deliver possession thereof to the
State Government or to any person duly authorized by the State
Government in this behalf within thirty days of the service.
Aforesaid provision specifically provides that a notice of
minimum 30 days was required to be served on the holder, but
as is apparent from the perusal of order-sheet that on
29.2.1992, the notice was issued and the date of delivery of
possession was fixed as 3.3.1992. It appears that only 4 days
notice was issued to the holder and the order-sheet was written
for taking over the possession. It is also apparent that notice
under Section 10(5) of the Act was not served upon the holder.
When the notice was served by affixture also does not find place
in the notice. Even the person who had affixed the notice did
not care to call two independent witnesses to witness affixure of
notice at the house of the holder. The notice is also silent that
on which date and at what time, the affixure was made. The
possession was not taken from the holder. Though the Kotwar
had signed the document but why two independent witnesses
were not called. Though two names are appearing in the notice
but without any particulars. Why the holder was not called for
handing over the 20 Writ Petition No.3269/2019 possession?,
nothing is available on record. Apart from this, no proper
Panchnama was drawn for taking possession of the land. These
facts show that in fact possession of the land was not taken on
3.3.1992 as stated in the reply by the respondents. When
possession of the land was not taken after issuance of due
notice under Section 10(5) of the Act, in accordance with law,
the proceedings shall be deemed to be pending as on the date
when the Urban Land (Ceiling and Regulation) Repeal Act,
1999 came into force. When the proceedings were pending as
on 22.3.1999, then in view of the Repeal Act of 1999, the
proceedings shall be deemed to be abated.
8. Now the question remains whether on coming into
force of Repeal Act, 1999 whether the proceedings were
pending? In this case, no notice under Section 10(5) of the Act
was served upon the appellants while it was the mandatory
requirement of the law to serve this notice. Even for the sake of
arguments, if it is assumed that the notice dated 29.2.1992 was
issued to the appellants, even then 30 days' notice was the
mandatory requirement of the law and until and unless a notice
of 30 days could have been issued, the provision shall be
deemed to be not complied with. Factually, neither notice under
Section 10(5) was served upon the appellants nor any notice
before handing over possession was given to the appellants.
Neither the notice under Section 10(5) of the Act nor the
warrant of possession bears the signature of the appellants.
Apart from this, the possession which was stated to be taken on
3.3.1992 was not in the presence of witnesses. Even if it is
assumed that the two names which are appearing in the notice
were witnesses, but no particulars of the witnesses are on
record. No specific Panchnama was prepared on the spot that
in the presence of these witnesses, the possession was taken.
When, at what time and in whose presence, the possession was
taken, letter of possession is silent. In view of non-compliance
of mandatory provision as contained under Section 10(5) of the
Act or the suspicious circumstances in taking possession, it is
apparent that the factual possession on the spot was not taken.
Apart from this, the appellants/petitioners from the very
inception were claiming their possession on the land and had
come forward with the plea that the appellants were
dispossessed after interim order in this appeal. The fact which
has been established is that no factual possession was taken
from the appellants and they continued to be in possession till
filing of the appeal which was filed on 24.6.2002 after coming
into force of Repeal Act, 1999. In aforesaid circumstances, the
appellants were in possession of the land, as on the date, on
which the Repeal Act, 1999 came into force. In such
circumstances, it can very well be said that the proceedings
were pending on the date when the Repeal Act came into force.
If the appellants remained in possession of the land and their
possession was not disturbed, then they were entitled to retain
the land and the proceedings shall be deemed to have been
abated [See: Vinayak Kashinath Shilkar Vs. Deputy Collector
and Competent Authority & others (2012) 4 SCC 718]."
[Emphasis Supplied]
9. In the present case the documents annexed by the State
Government and relied upon by them to show the possession, do not
in any manner demonstrate that the possession was, peacefully and
voluntarily, given by the land owner as the possession memo does
not bear any signature of any of the land owner or even does not
record that the possession was voluntarily given to the State
authority. The plain reading of the possession receipt does not show
taking of possession from the occupants. It is not the stand of the
State Government that the State Government has taken over only
symbolic possession over the land in question and the same cannot
be treated physical possession. If it be so, then also, it would not be
deemed to be "possession" within the meaning of Section 10(6) of
the Urban Land (Ceiling and Regulation) Act, 1976 which meant
actual and physical possession and not symbolic one. Admittedly the
original tenure-holder and then his successors had never voluntarily
surrendered the possession of land. In the absence of voluntary
surrender of possession of surplus land, the authorities were required
to proceed with forcible possession. The document of possession
memo would not by itself be an evidence of actual taking of
possession unless it is witnessed by two independent persons
acknowledging the act of forcible possession. Thus, the possession
was not given in accordance with Section 10(5) and 10(6) of the Act,
the possession in the present case as taken by the State is held to be
wholly illegal.
10. The factum of actual possession which has a vital role on
the rights of Landholder certainly has to be actual physical
possession and that too in accordance with law and therefore that
permits a big room of inquiry in all respect and the court having not
found any positive material and any overt act to show dispossession
of the landholder has to lean in their favour and thus in view of the
repeal of the Urban Land (Ceiling and Regulation) Act, 1976, a
person having continued in possession will continue with his rights.
11. If we read the relevant provisions of the Urban Land
(Ceiling and Regulation) Act, 1976 and Urban Land (Ceiling and
Regulation) Repeal Act, 1999 then it will be clear that mere vesting
of the land declared surplus under the Act without taking de facto
possession is of no consequence and land holder shall be entitled to
the benefit of Repeal Act. The effect of the Repeal Act is further
clear that if the land owner remains in physical possession then
irrespective of his land being declared surplus and/or entry being
made in favour of the State in Revenue Records, he will not be
divested of his rights.
12. If Court finds that one or more grounds exist which show
that the process of possession, though claimed under section 10(5) or
10(6) of the Act is unlawful or vitiated in law, then such possession
will have no reorganization in law and it will have to be ignored and
treated as of no legal consequence. Needless to say that unless the
possession was first ''taken', the same could not have been
''transferred' to the State Government.
14. A mere issuance of notification under Section 10(3) and
notice under Section 10 (5) regarding delivery of possession does
not amount to actual delivery of possession of land more especially
on the face of the fact that the tenure-holder had in fact not
voluntarily made surrender of possession of surplus land and no
proceeding under Section 10(6) had taken place. 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 At.
The State Government, in the present case, could not establish any of
those situations and hence this Court finds that the respondent is
entitled to get the benefit of Section 3 of the Repeal Act
14. So far as the judgment rendered by the Hon'ble Apex
Court in the case of State of Assam Vs. Bhaskar Jyoti Sarma and
others (supra) is concerned, the same shall apply in a case where
actual physical possession of the land is taken from the land owner.
The Hon'ble Supreme Court while dealing with a case involving the
fact in which actual physical possession was taken over from the
erstwhile land owner on 07.12.1991 and as such, the grievance with
regard to non-adherence of Section 10(5) of the Act, 1976 should be
raised within the reasonable time of such dispossession. The Hon'ble
Supreme Court in the aforesaid fact has further observed that if the
owner did not do so, forcibly taking over of the possession would
acquire legitimacy by sheer lapse of time and dealing with Section
3(1)(a) of the Act, 1976, the Repeal Act, 1999 has held that the
petition under Article 226 is not maintainable for seeking declaration
of proceeding initiated under the provisions of Act, 1976 abated. It is
clear from the view of the Hon'ble Supreme Court that the Apex
Court was very specific and has applied the point of delay and laches
in a case where actual physical possession has been taken over.
15. Thus, the questions framed are answered as under:-
(i) The possession taken by the State Government cannot be
termed as a valid possession in accordance with law provided under
the Urban Land (Ceiling and Regulation) Act, 1976
(ii) The possession is not taken in consonance with the
provisions of the Urban Land (Ceiling and Regulation) Act, 1976.
(iii) Subsequent transfer of land to State Government cannot
be a ground for denying the reliefs in the case where the possession
is held to be taken in derogation of the Urban Land (Ceiling and
Regulation) Act, 1976.
(iv) It is held that the Repeal Act will apply with full force and
in the event the possession is not taken in accordance with the
statutory provisions.
(v) It is held that the judgment of the Supreme Court in the
case of State of Assam Vs. Bhaskar Jyoti Sarma (supra) has no
applicability in the present case.
16. Consequently, the writ petition is allowed with the
direction to the State Government to correct the revenue records
accordingly.
No order as to costs.
(MILIND RAMESH PHADKE)
JUDGE
ojha
