1. With the consent of the parties, the matter is finally heard.
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2. The instant writ petition under Article 226
226/227 of the Constitution of
awarded.
3. The brief facts leading to filing of the present writ petition are as
Thereafter, the proceedings under Sect
Sections 10 (1), 10 (3) and 10 (5) of the
Act of 1976 were said to be undertaken by the respondents, and in terms of
Section 10 (6), the ex-parte
parte possession of land was taken by the respondents
on 21.12.1989. It has been contended by the petitioners
petitioner that since possession
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of land is still with them,
th , therefore the proceedings stood abated after
enforcement of the Repeal Act; hence, the present petition is filed for reliefs
4. Learned counsels
counsel appearing for the petitioners submit that the
petitioners are the legal heirs of late Shri Lal Singh Kushwaha and are still in
possession in land in question. They submit that the notice under Section 10
(5) of the Act of 1976 was never served on late Shri Lal Singh Kushwaha and
possession of the land in question was never taken over from the original
landholder. The respondents authorities have only prepared the documents for
taking over the possession which is nothing but a paper possession of land in
question. They further submit that records
rds do not reflect taking over forceful
possession of land by issuing notice in terms of Section 10 (6) of the Act of
1976. They further submit that even if for the sake of arguments, it is
accepted that due possession of the land was taken over from the original
o
landholder, then also, till date the compensation has not been paid and
therefore, now by virtue of enforcement of the Urban Land (Ceiling and
Regulation) Repeal Act, 1999 (hereinafter referred to as the Repeal act of
1999) as adopted in the State of Madhya Pradesh with effect from
17.02.2000, the
he petitioners are entitled to retain the possession of the land in
question, and the entire proceedings deserve to be quashed for non-
non
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compliance of the provision of the Act of 1976 an
and accordingly revenue
records deserve to be corrected
corrected.
5. In support of their contentions, learned counsels appearing for the
petitioners places reliance upon the following the judgments delivered by this
Court as well as the Apex Court
Court:
M/s A.P. Electrical Equipments Corporation Vs. The Tehsildar and
others: 2025 INC 274"
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6. On the other hand, learned counsel appearing for the State
State, referring to
the return filed, submits that the petition filed by the petitioners after a period
of nearly 30 years from the ddate
ate of passing of the order dated 17.03.1983
17.03.198
declaring the lands to be surplus and taking over the possession in the year
1989,, suffers from delay and laches and therefore, deserves dismissal. By
referring to the documents filed alongwith the return, learned counsel
appearing for the respondents submits that after hearing the original
landholder late Shri Lal Singh Kushwaha,, the order dated 17.03.1983 was
passed, whereby 5928.85 square meters of land forming part of Survey
No.470/1 was
as declared surplus.
surplus. The notification under Section 10 (1) of the
Act of 1976 was issued on 03.09.1983. The Gazette Notification declaring the
land to be vested in favour of the State Government in terms of 10 (3) of the
Act of 1976 was published on 17.11.1983. A notice in terms
terms of Section 10 (5)
of the Act of 1976 was issued by the competent authority to the original
landholder Shri Lal Singh Kushwaha on 03.11.1989 putting him to notice to
surrender the land in question within a period of 30 days, failing which, the
proceedings
ngs under Section 10 (6) of the Act of 1976 were sought to be
undertaken. The said notice was served on ShriLal
hriLal Singh Kushwaha on
15.11.1989 and bears his thumb impression
impression.. The notice also contains the
endorsement of process server evincing the service of notice on the original
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landholder. Since, the possession of the land was not surrendered by Shri Lal
Singh Kushwaha,, the ex-parte
ex parte possession was taken on 21.12.1989 by the
Tahsildar, Nazul in the presence of Revenue Inspector and thereafter, the
correctionss in the revenue map
maps as well as the revenue records were
incorporated whereby, the land was recorded in the name of State Govt. The
Kabja receipt (memorandum) showing taking over ex-parte possession was
also drawn. He submits that the aforesaid proceedings were never challenged
by the original landholder in his lifetime and therefore, at this stage, the
petitioners cannot be permitted to question the said proceedings. Accordingly,
he submits that the present petitio
petition deserves to be dismissed.
7. An application bearing I.A.No.849/2019 has been filed
file by one
GauravJadon S/o Shri Ashok Singh Jadon, seeking permission for
intervention in the present writ petition on the ground that he is the owner of
the land adjoining too the land in question bearing Survey No.470/4 and he has
submitted an application before the State Authorities
uthorities for settlement of the
said land in his favour but on account of pendency of the petition, the
application is not being processed by the Revenue Authorities.
uthorities. Subsequently,
an application for Final
inal Disposal of the petition bearing I.A.No.887/202
I.A.No.887/2024 is
also filed by the proposed intervener namely Gaurav Jadon, seeking disposal
of the petition on the ground that the
th State Authorities
uthorities have proceeded to allot
a
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the land in question to the Government Department
Departments and therefore, the earlier
application filed by the proposed intervener, seeking settlement of the land in
question in his favour has been withdrawn. Another application for dismissal
of the writ petition
tion has been filed by the proposed intervener GauravJadon
bearing I.A.No.887/2025 whereby, the orders dated 21.02.2024 and
21.11.2023 passed by the Collector, District Gwalior have been placed on
record indicating that the part of the land in que
question has been allotted to the
Revenue Department
epartment for construction of Tahsil building and a part of the land
in question has been allotted to the Health Department, Government of M.P.
for construction of New Primary Health Centre.
8. No reply to the application se
seeking
eking dismissal of the writ petition
bearing I.A.No.887/2025 is filed by the petitioners. Learned counsel
appearing for the proposed intervener submits that in view of the subsequent
developments, the present petition deserves dismissal.
9. No other point is pressed by the learned counsel appearing for the
parties.
10. Heard the learned counsel appearing for the parties and perused the
record.
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11. The record of the Ceiling Case No.251/80
No.251/80-81
81 wherein, the proceedings
under the Act of 1976 were undertaken against the original landholder Shri
Lal Singh Kushwaha is also produced by the learned counsel appearing for
the State for the perusal of this Court.
12. In view of the rival contentions advanced by the parties, the following
issues arise for considerati
consideration in the instant case:
"(i).Whether
hether the procedure as contemplated in law was adopted by
the respondents authorities in taking possession of the surplus land
from the landholder Late Shri Lal Singh Kushwaha?
(ii).Whether
Whether the petition filed by the petitioners
petitioners suffers from
latches?"
Answer to issue No. (i) :
13. The record of the Ceiling Case No. 251/80-81 produced by the State
counsel indicates that on being notice
noticed, the original landholder submitted the
particulars/details of the land in question in terms of Section 6 (2) of the Act of
1976 on 25.06.1981. The draft statement was prepared and thereafter on
completing the formalities as contemplated under the Act of 1976, the final
order declaring 5928.85
.85 square meters
me of the land surplus was passed by the
Competent Authority
uthority on 17.03.1983 after considering the objection
objections submitted
by the original land owner. The notification in terms of Section 10 (1) of the Act
of 1976 was issued on 03.09.1983. The Gazette publication ultimately affirming
the vesting of land in favour of the State in terms of Section 10 (3) of the Act of
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1987 was published on 17.11.1983. A notice under Se
Section
ction 10 (5) of the Act of
1976 specifically informing the erstwhile the landholde
landholderr ShriLal Singh
Kushwaha that by virtue of publication in gazette under Section 10 (3) of the
Act of 1976, was issued by the competent authority on 03.11.1989, since the
land stands vested in State, he was call
called
ed upon to hand over the possession of
the surplus land, failing which, the proceedings under Section 10 (6) of the Act
of 1976 would be undertaken.
14. Records indicate that the notice under Section 10 (5) of the Act of 1976
was served on Shri Lal Singh Kushwaha on 15.11.1989 and the said notice bears
the thumb impression of Shri Lal Singh Kushwaha.. The reverse side of the said
notice also bear signatures of Process Server Ramvir Singh and one Bhure Singh
S/o Shri Sumer Singh.. The said notice clearly states that in case, the lland owner
fails to deliver the possession to Naib
Naib-Tahsildar,
Tahsildar, Nazul, Gwalior within a period
of 30 days, then the possession in terms of Section 10 (6) of the Act of 1976
would be undertaken.
taken. Since Shri Lal Singh Kushwaha did not surrender
surrendered
possession, the possession of the land in question was taken on 21.12.1989 and a
Kabja Receipt (memorandum
memorandum) was also prepared bearing signatures
signature of the
Tahsildar (Nazul) as well as Revenue Inspector
Inspector.. Due correction in the revenue
maps and revenue recordswere
record also incorporated
rated indicating the State Govt. as
owner of the land. The aforesaid documents are filed alongwith the return filed
by the State Govt.. The proceeding of vesting, taking over possession and
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corrections in the revenue maps under the Act of 1976 thus stood concluded
co in
respect of land in question against Shri Lal Singh Kushwaha on 21.12.1989.
15. The procedure for taking possession of acquired land came up for
consideration before the Apex Court in the case of Tamil Nadu Housing
Board v. A. Viswam, AIR 1996 SC 3377, wherein it has been held that one
of the accepted modes of taking possession of acquired land is the recording
of a memorandum or Panchnama by the Officer in the presence of witnesses
singed by him and that would constitute taking possession of the land, as it
would be impossible to take physical possession of the acquired land. The
Apex Court held that it is a common knowledge that owners/interested
persons may not cooperate in taking possession of land. In the case of Larsen
& Toubro Ltd. v. State
ate of Gujarat, (1998) 4 SCC 387 the Apex Court held in
para 13 that recording of Panchnama in presence of witnesses signed by them
as also by Circle Officer evidencing taking over of possession is a sufficient
compliance. The revenue records showing party in possession of land coupled
with the revenue entries is a sufficient compliance. The Apex Court held that
the High Court could not convert itself into a revenue court and hold that
inspite of Panchnama and revenue record actual physical possession of the
th
land was not taken over.
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16. The procedure for taking over the possession of the land as indicated in
the records when tested on the anvil of the above preposition as laid down by
the apex court reveals that due and proper possession of lands, in accordance
accord
with law, was taken by the respondents. The subsequent retention of
possession of land, if any by the petitioners would tantamount only to illegal
or unlawful possession as has been held by the Division Bench of this Court in
the case of Ramnarayan an
and
d Others vs. State of Madhya Pradesh and
others:W.A.No.81/2006 decided on 14.02.2002 at Jabalpur and the relevant
para of the said judgment reads as under:
under:-
"15. A constitution bench of the Hon'ble Supreme Court in Indore
Development Authority v. Manoharlal, reported in 2020 (8) SCC 129
considered the question when is physical possession is said to have been
taken under the provisions of the 1 AIR 1996 SC 3377 2 (1998) 4 SCC 387 3
(1996) 4 SCC 212 4 2003 (2) MPLJ 271 5 (2020) 8 SCC 129, paragraph
247,
47, 260, 274 8 Land Acquisition Act, 1894. The court held that when the
State draws up a memorandum or Panchnama of taking possession, that
amounts to taking the physical possession of the land. When vacant land is
acquired, the State is not supposed to pu
putt some person or the police in
possession to retain it and start cultivation till the time the land is used for
the purpose for which it is acquired. The State is not supposed to physically
reside or occupy the land once the possession is taken after drawing
drawi of
Panchnama. After drawing Panchnama taking possession of the land, if any
one makes re-entry
entry over the land then he is deemed to be a trespasser on the
land which is in the possession of the State. It was further held that once
possession is taken by drawing
drawing of Panchnama the lands vests in the
government free from encumbrances. Thereafter any illegal re
re-entry
entry over the
land cannot have the effect of divesting the land once it vests in the State."
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Issue no.(i) is answered accordingly.
Answer issue no. ((ii)
17. As per the own pleadings of the petitioners as stated in para 4 of the writ
petition, the petitioner'ss father Shri Lal Singh Kushwaha (original landholder)
expired in the year 2011. The original land owner, in his lifetime never
challenged either the order dated 17.03.1983 declaring the land in question as
surplus or the factum of taking over possession by the State Government. It is
only
ly after his death, the petitioners have filed the instant writ petition in the year
2014 raising factual dispute as regards alleged irregularities in the matter of
taking over of possession by the State Government.
18. It has been vehemently argued by th
thee learned counsels appearing for
the petitioners that the so-called
so called possession of land taken from the petitioners
is merely a paper possession, and the procedure as contemplated under
Section 10 (6) of the Act of 1976 has not been followed and there is nothing
not
on record to indicate that any forceful possession was taken from the
petitioners. In support of the said contention, learned counsels appearing for
the petitioners has relied upon the judgment of the Apex Court in the case of
A.P. Electrical Equipmen
Equipment vs. Tahsildar and Others etc., reported in 2025
SCC Online SC 447.
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19. It has also been argued by the learned counsels appearing for the
petitioners that the judgment of the Apex Court in the case of State of Assam
v. Bhaskar Jyoti Sarma
Sarma, (2015) 5 SCC 321 which intended to dilute the
earlier decision of the Apex Court in the case of State of U.P. v. Hari Ram,
(2013) 4 SCC 280, came up for consideration before the Apex Court in the
case of A.P. Electrical Equipment (supra) and the Apex Court in the said
case
ase has clarified that the earlier judgment in the case of Hari Ram (supra)
holds the field even as on date. Accordingly, they submit that in the absence
of following the procedure as contemplated under Section 10 (6) of the Act of
1976, it cannot be said that proper possession in accordance with law was
taken from the petitioner
petitioners.
20. It is noteworthy that the judgments of the Apex Court in the case of
Bhaskar Jyoti Sharma (supra) and Hari Ram (supra) came up for
consideration by the Constitution Bench of Five Judges of the Apex Court in
the case of Indore Development Authority Vs.. Manoharlal, 2020 (8) SCC
129 and paragraph 344 of the judgment in the case of Indore Development
Authority (supra) reads aas under:
344. In this context, it is noteworthy that the Urban Land (Ceiling and
Regulation) Act, 1976, was repealed in the year 1999; thereafter, claims
were raised. After repeal, it was claimed that actual physical possession has
not been taken by the StState
ate Government as such repeal has the effect of
effacing the proceedings of taking possession, which it was alleged, was not
in accordance with the law. In State of Assam v. BhaskarJyotiSarma [State
of Assam v. BhaskarJyotiSarma, (2015) 5 SCC 321] , submis
submission
sion was raised
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by the State of Assam that physical possession has been taken over by the
competent authority and it was submitted on behalf of landowner that
procedure prescribed under Section 10(5) of the Urban Land (Ceiling and
Regulation) Act, 1976, was was not followed. It was before taking possession
under Section 10(6) of the Urban Land (Ceiling and Regulation) Act, 1976,
the notification under Section 10(5) was necessary; thus, no possession can
be said to have been taken within the meaning of Section 3 of the Repeal Act.
The question this Court had to consider was whether actual physical
possession was taken over in that case by the competent authority. The State
of Assam submitted that though possession was taken over in the year 1991,
may be unilaterallylly and without notice to the landowner. It was urged that
mere non-compliance
compliance with Section 10(5) would be insufficient to attract the
provisions of Section 3 of the Repeal Act. This Court repelled the submission
of the landowner and held as under : (SCC ppp. 329-30, paras 15-17).17).
"15. The High Court has held [BhaskarjyotiSarma v. State of
Assam, 2010 SCC OnLineGau 377] that the alleged
dispossession was not preceded by any notice under Section
10(5) of the Act. Assuming that to be the case all that it would
would
mean is that on 7-12-1991
7 1991 when the erstwhile owner was
dispossessed from the land in question, he could have made a
grievance based on Section 10 (5) and even sought restoration
of possession to him no matter he would upon such restoration
once again be liable to be evicted under Sections 10 (5) and
10(6) of the Act upon his failure to deliver or surrender such
possession. In reality therefore unless there was something
that was inherently wrong so as to affect the very process of
taking over such as the identity of the land or the boundaries
thereof or any other circumstance of a similar nature going to
the root of the matter hence requiring an adjudication, a
person who had lost his land by reason of the same being
declared surplus under Section 10 (3) w would
ould not consider it
worthwhile to agitate the violation of Section 10 (5) for he can
well understand that even when the Court may uphold his
contention that the procedure ought to be followed as
prescribed, it may still be not enough for him to retain the
land for the authorities could the very next day dispossess him
from the same by simply serving a notice under Section 10(5).
It would, in that view, be an academic exercise for any owner
or person in possession to find fault with his dispossession on
the ground that no notice under Section 10(5) had been served
upon him.
16. The issue can be viewed from another angle also.
Assuming that a person in possession could make a grievance,
no matter without much gain in the ultimate analysis, the
question is whether
whether such grievance could be made long after
the alleged violation of Section 10(5). If actual physical
possession was taken over from the erstwhile landowner on 77-
12-1991
1991 as is alleged in the present case, any grievance based
on Section 10(5) ought to have
have been made within a reasonable
time of such dispossession. If the owner did not do so, forcibly
taking over of possession would acquire legitimacy by sheer
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lapse of time. In any such situation, the owner or the person in
possession must be deemed to have waived his right under
Section 10(5) of the Act. Any other view would, in our opinion,
give a licence to a litigant to make a grievance not because he
has suffered any real prejudice that needs to be redressed but
only because the fortuitous circumstance of a Repeal Act
tempted him to raise the issue regarding his dispossession
being in violation of the prescribed procedure.
17. Reliance was placed by the respondents upon the decision
of this Court in Hari Ram case [State of U.P. v. Hari Ram,
(2013) 4 SCC 280 : (2013) 2 SCC (Civ) 583] . That decision
does not, in our view, lend much assistance to the
respondents. We say so, because this Court was in State of
U.P. v. Hari Ram [State of U.P. v. Hari Ram, (2013) 4 SCC
280 : (2013) 2 SCC (Civ) 583] considering whether the word
"may" appearing in Section 10(5) gave to the competent
authority the discretion to issue or not to issue a notice before
taking physical possession of the land in question under
Section 10(6). The question of whether the breach of Section
10(5) and possible dispossession without notice would vitiate
the act of dispossession itself or render it non est in the eye of
the law did not fall for consideration in that case. In our
opinion, what Section 10(5) prescribes is an ordinary and
logical course of action that ought to be followed before the
authorities decided to use force to dispossess the occupant
under Section 10(6). In the case at hand, if the appellant's
version regarding dispossession of the erstwhile owner in
December 1991 is correct,
correct, the fact that such dispossession
was without a notice under Section 10(5) will be of no
consequence and would not vitiate or obliterate the act of
taking possession for the purposes of Section 3 of the Repeal
Act. That is because BhabadebSarma, erstwhil
erstwhilee owner, had
not made any grievance based on breach of Section 10(5) at
any stage during his lifetime, implying thereby that he had
waived his right to do so."
This Court held that provisions of the Repeal Act could not be extended
in such a case where possession has been taken without following the
procedure, and the landowner cannot retain the land. This Court also
observed that once possession has been taken over in the year 1991, any
grievance as to non non-compliance
compliance of Section 10 (5) ought to have been
made within a reasonable time of such dispossession. By sheer lapse of
time, the possession would acquire legitimacy. Thus, the owner or the
person in possession must be deemed to have waived his right under
Section 10(5) of the Act. This Court also obser observed
ved that only because of
the fortuitous circumstance of a Repeal Act, which confers certain rights,
the litigation had tempted the landowner to raise the issue regarding his
dispossession being in violation of the prescribed procedure. It is clear
from the aforesaid decision that such claims cannot be entertained, and
any such dispute raised belatedly was repelled by this Court.
(Emphasis Supplied)
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21. The underline portion of the aforesaid judgment delivered by the
Constitution Bench of Five Judges of the Apex Court indicates that not only
the judgment of the Apex Court in the case of Bhaskar Jyoti Sharma (supra)
and the case of Hari Ram (supra), were considered but also the preposition
of law as laid down in the case of Bhaskar Jyoti Sharma (supra) has been
approved and reiterated.
22. The facts in the case of A.P. Electrical Equipment (supra) were
entirely different from the present case, as in the said case, the permanent
structures of the petitioners therein were found to be existing even after
taking over possession of the land and the judgment in the case of Indore
Development Authority (s
(supra) being earlier in point of time and being of
Constitution Bench is binding on this court.
23. Though, the stand has been taken by the petitioners that they are still in
possession of the land and they are residing in their house constructed thereon
since
ince last 25 years. However, no documentary evidence in the said regard has
been filed by the petitioner
petitioners,, on the contrary, the perusal of the documents
annexed with I.A.No.887/2025 indicates that after due inquiry and spot
verification, the part of the la
land in question has been allotted to the R
Revenue
Department
epartment of the State Government for con
construction
struction of a Tahsil building vide
order dated 21.02.2024 and a part of the land in question has been allotted to the
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Health Department of the State Government for construction of New Primary
Health Center vide order dated 21.11.2023. The inquiry conducted for allotment
of the land in question to the Department
Departments of the State Government does not
reflect any construction over the land in question. That apart, the said orders are
not even disputed by the petitioners by filing any rebuttal. The contention of the
petitioners as regards construction of their house over the land in question is,
thus wholly unfounded
unfounded.
24. Thus, the original landholder Shri Lal Singh Kushwaha having failed to
challenge the order of declaration of the land in question as surplus passed on
17.03.1983 and the exercise of taking over possession in the year 1989 at the
relevant time and in his entire lifetime upto the year 2011, the petitioners,
petitio being
his sons, cannot be permitted to dispute the said issues at this distant point of
time nearly after 30 years in the year 2014,, the petition filed by the petitioners
latches The said aspect is covered by preposition laid down
thus suffers from latches.
in the case of Bhaskar Jyoti Sharma (Supra) as approved in the case of
Indore Development Authority (supra)
(supra).
Issue No. (ii) is answered accordingly.
25. In so far as contention of non
non-grant
grant of compensation in terms of section
11 of the Act of 1976 is concerned, it is suffice to observe that section 5 of the
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Repeal act of 1999 does not apply to proceedings related to section 11 of the
principal act.
26. In view of the above consideration
considerations and answers to the issues framed, no
case for interference is made out, accordingly the petition sans merits, is hereby
dismissed.. No orders as to cost.
27. All pending
ing applications, if any, stand disposed of.
(AMIT SETH)
S
JUDGE
AK/-
