[Cites 28, Cited by 0]
Madhya Pradesh High Court
Anant Ram Tiwari vs The State Of Madhya Pradesh on 21 January, 2026
NEUTRAL CITATION NO. 2026:MPHC-JBP:5842
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANDEEP N. BHATT
W.P.No.12384 OF 2005
ANANT RAM TIWARI
VERSUS
THE STATE OF MADHYA PRDESH AND OTHERS
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Appearance:
Shri Siddharth Sharma - Advocate for the petitioner.
Shri Kamal Singh Baghel, G.A for respondent.
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RESERVED ON : 15.01.2026
PRONOUNCED ON : 21.01.2026
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ORDER
Present petition is filed seeking following reliefs :-
(i) Summon the records of the case;
(ii) issue a writ of certiorari or any other appropriate writ, order or
direction quashing the impugned orders passed under Section 8, 9 and
10 of the Urban Land (Ceiling and Regulation) Act, 1976, passed in
Case No. 245/A-9/B-9/83-84 and all the proceedings under the above
Act of1976 in relation to the disputed land, as illegal and void;
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(iii) issue an appropriate writ, order or direction restraining the
respondents from interfering with the peaceful possession of the
petitioner over the land in question;
(iv) issue a writ of certiorari or any other appropriate writ, order or
direction declaring the petitioner to be owner and person in possession
of the land in question;
(v) any other appropriate writ, order or direction which in the
esteemed opinion of this Hon'ble Court is just and proper in the facts
and circumstances of the case may also kindly be issued: in favour of
the petitioner in the interest of justice;
(vi) Cost of instant petition may also kindly be awarded infavour of
the petitioner.
2. It is contended that petitioners are in actual peaceful possession
cultivating the land in question and, therefore, the proceedings
initiated pursuant to Urban Land & Ceiling Act by the respondent/
authority which in view of section 4 has been repealed under the
Repealed Act. It is contended that appropriate directions may be
issued as per prayer clause.
3. The main contention of the counsel for the petitioner is that the
original owner Late Niranjan Prasad Awasthy died in the year 1994.
Prior to that Laxmi Bai w/o Late Niranjan Prasad Awasthy challenged
the notice under section 10(5) of the Act by filing an appeal under
section 33 of the Act of 1976 before the Court of Commissioner. It is
also contended that on 27.03.2000, the Court of Commissioner
dismissed the appeal. The land in question has been peaceful
possession of the original land owner and the petitioner. It is further
submitted that the State of Madhya Pradesh has notified the Repeal
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Act on 17.02.2000 which provides for abatement of all the pending
proceedings under the Principal Act of 1976. In the year 2005, the
competent authority rejected the application under section 4 of the
Repeal Act. On 31.05.2005, the competent authority rejected the
application under section 4 dehors the provisions of Repeal Act
without assigning any reason as it has not discussed whether the
process under section 10 was followed as per the manner prescribed or
not and, therefore, he has contended that neither provision of section
10(5) nor section 10(6) is complied with as notice under section 10(5)
and 10(6) of the Ceiling Act was necessary before taking the
possession and de facto possession is necessary dejure is not necessary
and, therefore, the issues, viz (i) whether on the facts and in the
circumstances of the case any notice was issued to the petitioner by
the respondent/authority under section 10(5) as well as section 10(6)
of the Act; (ii) whether notice was served upon the petitioners and (iii)
whether actual possession is taken-over by the respondent/authority or
not, are the question which are required to be considered by this court.
4. Shri Siddharth Sharma, counsel for the petitioners has submitted
chronology of events for better appreciation of the facts and
circumstances of the case, which is as under :-
S.No. Date Particulars
01. Prior to 1983 Late Niranjan Prasad Awasthy was original owner having
Bhu adhikar Pustika and name in Khasra entries.
02. 1983-1984 The competent authority started proceedings under Urban
Land Ceiling Act, 1976 (hereinafter to be referred as
"Ceiling Act") having registered the case
No.245/A-9(B-9)/83-84.
03. 11.05.1988 Section 8 draft statement was passed.
04. 10.05.1989 The part of 7362.49 sq.meters of the land in question was
declared as surplus.
05. 31.01.1994 As per the Reply of the respondents, the competent
authority claims that it issued notice under Section 10(5) to
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the original owner Late Niranjan Prasad Awasthy
(Annexure R/4 of reply), but he refused to take notice.
However, the same was never issued to him.
06. Even assuming for the sake of argument that the owner
refused to take the notice and voluntarily handover the
possession, the competent authority ought to have taken
steps under Section 10(6) of the Act of 1976 to take
forceful possession. There is no record of any kind of
proceeding under section 10(6) of the Act of 1976.
07. 07.05.1994 As per the record, the possession certificate was issued,
however, it bears no signature of the land owner nor any
witnesses. (Annexure P/8 pg.43).
08. 22.05.1994 Original owner Niranjan Prasad Awasthy died.
09. The land in question has been in physical possession of the
petitioner.
10. The wife of Late Niranjan Prasad Awasthy, Laxmi bai came
to know that the land has been vested to the State and the
proceedings has been going on under the Act of 1976..
11. Laxmibai preferred an appeal under section 33 of the Act
of 1976 which was registered as Appeal Case
No.237/A-90-B-9/98-99 (Annexure P/4 pg. No.31).
12. 22.03.1999 The parliament passed the Urban Land (Ceiling and
Regulation) Repeal Act, 1999 hereinafter to be referred as
"Repeal Act".
13. 17.02.2000 The Repeal Act was notified and came into effect in the
State of Madhya Pradesh and provided for abatement of all
the pending proceedings under the principal Act of 1976.
14. 27.03.2000 The respondent No.2 dismissed the appeal as being abated
on account of passing of Repeal Act. Order also shows that
no proceedings under section 11,12 and 14 of the Act of
1976 for giving compensation had taken place (Annexure
P/5 pg.38).
15. present petitioners made application before the competent
authority in terms of section 4 of the Repeat Act (Annexure
P/9 page 44.)
16. 31.05.2005 The competent authority rejected the application under
section 4 in dehors the provisions of the Repeal Act
without assigning any reason vide the impugned order.
(AnnexureP/10 pg.49).
and thereafter he has made submission on the points involved in the
present petition. He has submitted that petitioner and the original
owner have been continuous and uninterrupted possession of the lands
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till date and physical possession of the lands have not been taken over
till date. He has further submitted that there is no record to show the
manner in which possession was taken or whether it was taken as per
the mandate of section 10 of the Act of 1976. He has submitted that
from the return filed by the respondents where respondents claim that
the possession was taken ex parte which itself is illegal as per the law
laid down in the case of State of U.P. Vs. Hari Ram-(2013) 4 SCC
280. He has submitted that in that circumstances the only course of
action available to the State Government for taking over possession of
the land by serving a notice under section 10(6) of the Act. He has
submitted that it is admitted position even from perusal of the record
which is produced by counsel for the State pursuant to the earlier
order. There also it is found that no notice under section 10(6) was
ever served to the petitioner. In fact, even notice under section 10(5)
of the Act was not served to the petitioners. He has further submitted
that physical possession of the land whether voluntary or forceful has
never been taken by the State. He has further submitted that even
perusal of the impugned order which challenged by way of present
petition, nowhere it is mentioned that notice under section 10(6) of the
Act of 1976 was ever issued or served to the owner of the land. In
support of his contention that notice under section 10(5) and 10(6) of
the Act of 1976 was necessary before taking the possession and de
facto possession is necessary not de jure possession. He has relied on
the judgment of Hari Ram (supra) and another judgment in the case
of Brijesh Gautam Vs. State of M.P. dated 02.02.2018 passed in
W.A.No.509/2017. The judgment of Hon'ble Apex Court dated
31.01.2019 State of Madhya Pradesh and another Vs. Rajabai and
others bearing No. RP (Diary No.24342/2019 in SLP No.3923/2019).
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He has also relied on the judgment reported in (2015) 2 SCC 390 Dr.
Somayajulu Secretary, Diesel Loco Shed and Southern Eastern
Railway House Building Co-operative Society Ltd. Vs. Atili Appala
Swamy and others; in Rajendra Kumar Patel Vs. State of M.P.
passed in W.P./1855/2005, in Veer Narayan Rathore Vs. State of M.P.
passed in W.P.No.10243/2007 in the case of Allied Motors Ltd. Vs.
Bharat Petroleum Corporation Ltd. (2012) 2 SCC 1 and, lastly he
has relied on recent judgment of Hon'ble Supreme Court in Civil
Appeal No.4526-4527 of 2024 M/s A.P. Electrical Equipment
Corporation Vs. The Tahsildar and others and has submitted that in
view of this the present petition deserves to be allowed on the ground
that of non-compliance of required procedure under section 10(5) and
10(6) of the Act by the respondent/authority and considering the fact
that the petitioner is in actual physical possession.
5. Per contra, learned counsel for the State has also submitted that
the original record is available and return has also been filed in the
matter. He has drawn attention of this court towards the return and
has submitted that petitioners are claiming that they are in possession
of the land and this point has been dealt with by the Additional
Collector, Jabalpur at the time of passing the order dated 31.05.2005
that the possession of the petitioner is not legal as the name of State
Government has been recorded in the revenue record and possession
of the petitioners has been taken after complying the provision of
Ceiling Act as well as after serving the notice under section 10(5) of
the Act and, therefore, the claim of the petitioner that he is in
possession is illegal and in the impugned order in last paragraph of the
competent authority, Jabalpur has directed the Tahsildar, Jabalpur to
initiate proceedings under section 248 of MPLRC, 1959 against the
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petitioner. He has further submitted that from the record also it
transpires that notice is issued under the provisions of section 10(5) of
the Act. Service of the same was refused by the petitioner and,
therefore, the same was affixed. He has drawn attention of this court
that possession is taken over pursuant to the service of notice under
section 10(5) and Panchnama is also drawn of the taking possession of
land in question. By referring to the document which is part of the
return/reply he has submitted that therefore, in view of this, it cannot
be said that procedure is not followed and more particularly
possession is taken over by the respondents and, therefore, the claim
of the actual physical possession of the petitioners is on the basis of
illegal possession in view of such procedure carried out by the
competent authority. He has submitted that the relevant dates and
events and also submission it transpires that notice under section 10(5)
of the Act is served upon the petitioners as refused to accept and
thereafter is also taken over and, therefore, there is no illegality
committed by the respondent/authority in taking over the possession
and the order passed by the competent authority which is under
challenged is just and proper and no interference is required, and,
therefore, he has submitted that petition is required to be dismissed.
6. I have considered the rival submissions made at the bar.
7. From the bare perusal of the material available on record it
transpires that the proceeding is initiated in the year 1979-1980
pursuant to the provisions of Urban Land Ceiling Act, 1976 and case
has been registered. It also transpires from the record that notice is
issued under section 10(5) of the Act on 31.01.1994.
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8. If the petitioners have not handed-over the possession
voluntarily then the respondents ought to have initiated proceedings
under section 10(6) of the Act by issuing notice before taking
possession. From the record or from the reply of the respondents
which is filed in the present proceedings or even from the order passed
by the competent authority which is under challenged, nowhere is
coming on record that notice under section 10(6) is issued before
taking forceful possession.
9. I have also perused the record which is produced by learned
counsel for the State for perusal of this court. This court has also not
found any notice under section 10(6) of the Act. Even service of
notice under section 10(5) of the Act is under dispute and, therefore,
any Panchanama drawn on the basis of notice under section 10(5) of
the Act for taking over possession by the respondent/authority, is also
not in consonance with law as no proper procedure is followed.
Therefore, prima facie, it transpires that the contentions raised by the
petitioner that the only course available to the State Government for
taking over the possession of the lands was to serve the notice under
section 10(6) of the Act, which is not complied with in the facts and
circumstances of the case, more particularly, considering the judgment
of Hari Ram (supra). The another contention that notice under
section 10(5) and 10(6) of the Act was necessary before taking over
the possession and de facto possession is necessary not de jure. There
are also various judgments cited by the counsel for the petitioner is
supporting the case of the petitioners and respondents have failed to
point out any material as proper procedure is not complied with in
pursuant to section 10(5) of the Act.
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10. In the present case so called possession which is said to have
been taken by the respondent/ authority was not in presence of the
witnesses as on bare perusal of the document available on the record
and even if it is assumed that the two names which are appearing in
the notice were witnesses but no particulars of the witnesses are not
record. No specific panchnama was prepared on the spot that in the
presence of these witnesses the possession was taken. When and at
what time and in whose presence the possession was taken, regarding
that letter of possession is silent and, therefore, in view of non-
compliance of mandatory provision as contained under section 10(5)
of the Act, the possession is which taken as claimed by the
respondents, is under suspicion and, it cannot be said that actual
physical possession is taken.
11. In view of the above mentioned position of the present case, it is
fruitful to refer to the judgment of Apex Court in M/s A.P. Electricals
(supra), which is discussed in detail. The relevant paragraphs
reproduced as under :-
"37. Sub-section (5) of Section 10 talks of "possession"
which says where any land is vested in the State
Government under subsection (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.
38. 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, 1976 early.
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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. Sub-section (5) of
Section 10 visualizes a situation of surrendering and
delivering possession, peacefully while sub-section (6) of
Section 10 contemplates a situation of forceful
dispossession.
39. The mere vesting of the land under subsection (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 18.03.1999. State has to establish
that there has been a voluntary surrender of vacant land
or surrender and delivery of peaceful possession under
subsection (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 3 of the Repeal
Act, 1999. In the case on hand, the State Government
has in our considered view not been able to establish any
of those situations and hence the learned Single Judge
was right in holding that the appellant herein is entitled
to get the benefit of Section 3 of the Repeal Act, 1999.
40. The effect of Repeal Act, 1999 is further clear. If the
landowner 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. Even if
compensation is received that also will not dis-entitle
him to claim the benefit if compensation is refunded,
provided he is in actual physical possession. Payment of
compensation has no co-relation with the taking of
actual physical possession as with the vesting land
compensation becomes payable which can be paid
without taking actual physical possession.
41. The propositions of law governing the issue of
possession in context with Sections 10(5) and 10(6)
respectively of the Act, 1976 read with Section 3 of the
Repeal Act, 1999 may be summed up thus:
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W.P.No.12384 OF 2005
[1] The Repeal Act, 1999 clearly talks about
the possession being taken under Section 10(5)
or Section 10(6) of the Act, 1976, as the case
may be.
[2] It is a statutory obligation on the part of the
competent authority or the State to take
possession strictly as permitted in law.
[3] In case the possession is purported to have
been taken under Section 10(6) of the Act, 1976
the Court is still obliged to look into whether
"taking of such possession" is valid or
invalidated on any of the considerations in law.
[4] The possession envisaged under Section 3
of the Repeal Act, 1999 is de facto and not de
jure only.
[5] The mere vesting of "land declared
surplus" under the Act without resuming "de
facto possession" is of no consequence and the
land holder is entitled to the benefit of the
Repeal Act, 1999.
[6] The requirement of giving notice under
sub-sections (5) and (6) of Section 10
respectively is mandatory. Although the word
"may" has been used therein, yet the word
"may" in both the sub-sections should be
understood as "shall" because a Court is
obliged to decide the consequences that the
legislature intended to follow from the failure to
implement the requirement.
[7] 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 18th March 1999.
[8] The State has to establish by cogent
evidence on record that there has been a
voluntary surrender of vacant land or surrender
and delivery of peaceful possession under sub-
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W.P.No.12384 OF 2005
section (6) of Section 10 or forceful
dispossession under sub-section (6) of Section
SCOPE OF INTRA-COURT APPEAL
42. We have noticed that the Division Bench in its
impugned judgment has used the expression "shockingly
the learned Single Judge" at various places. We fail to
understand what is so shocking in the judgment of the
learned Single Judge that the Division Bench had to
interfere in a writ appeal. Was the Division Bench
deciding a criminal appeal against the judgment and
order of conviction passed by the learned Single Judge?
The Division Bench was quite aware that it was deciding
an intra court appeal. An intra-court appeal is really not
a statutory appeal preferred against the judgment and
order of an inferior to the superior court. The Division
Bench was not deciding a criminal appeal against the
judgment rendered by learned Single Judge. The appeal
inter se in a High Court from one court to another is
really an appeal from one coordinate bench to another
coordinate bench and it is for this reason that a writ
cannot be issued by one Bench of the High Court to
another Bench of the High Court nor can even the High
Court issue writ to a High Court. Thus, unlikely an
appeal, in general, an intra court appeal is an appeal on
principle and that is why, unlike an appeal, in an
ordinary sense, such as a criminal appeal, where the
whole evidence on record is examined afresh by the
appellate court, what is really examined, in an intra
court appeal, is the legality and validity of a judgment
and/or order of the learned Single Judge and it can be
set aside or should be set aside only when there is a
patent error on the face of the record or the judgment is
against the established or settled principles of law. If two
views are possible and a view, which is reasonable and
logical has been adopted by a Single Judge, the other
view howsoever appealing may be to the Division Bench,
it is the view adopted by the learned Single Judge, which
should, normally, by allowed to prevail.
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43. The learned Single Judge after a meticulous
examination of the entire record noticed so many
deficiencies in the procedure adopted by the State. The
plain reading of the impugned judgement gives an
impression that all that the Division Bench kept doing
was to cure such deficiencies noted by the learned Single
Judge by giving benefit of doubt to the State at every
possible stage.
44. The State has not been able to give us any
satisfactory reply as to on what basis it says that at the
relevant point time the factory was closed; there was not
a soul in site and therefore, the officials were left with no
other option but to affix Section 10(5) notice outside the
premises. This is something which is absolutely
unpalatable. The State proceeds further saying that as
there was no voluntary surrender of the excess land
within thirty days from the date of affixation, it had to
invoke Section 10(6) of the Act, 1976 and accordingly
took over the possession. It is extremely hard to believe
that when such a large parcel of land is being taken over
the owner would not be present and further would not
take any steps in accordance with law.
45. It was pointed out on behalf of the appellant herein
that not only the factory is still running on the subject-
land but there are multi-storeyed residential buildings
also constructed therein. It was also pointed out that
entire land is encompassed by a boundary wall and the
gate is manned by security guard. It was also brought to
our notice that the so called panchnama does not
contain any site map or distinctive boundaries with
special divisions whatsoever. The entire extent of 1,63679
sq.mtrs. is bound by one compound wall. It seems that
the Division Bench in its impugned judgment has
observed that there is no requirement under the statute
for obtaining the signature of the landowner in the
panchnama or filing of the affidavits by the panchas.
When State Authorities try to take law in their own
hands by hook or crook and rely on bogus paper
panchnamas for the purpose of asserting that actual
physical possession was taken over before the date of the
repeal, then it is imperative that the signature of the
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landowner must be obtained in the panchnama so as to
attach sanctity and authenticity to such exercise of
taking over of actual possession. Affidavits of the
panchas would also attach great sanctity to the same.
46. We have no hesitation in saying that the State has not
placed true and correct facts in all respect. Both of us
(J.B. Pardiwala and R. Mahadevan, J.J.) have worked as
judges in our respective High Courts. We had the
occasion to decide many matters exactly of the present
type. Our experience so far has been that out of ten
matters in nine matters it was apparent that the cases
were one of paper possession. The present case is also
one of paper possession. The learned Single Judge was
constrained to observe that having regard to the
materials on record few documents were found to be
ante dated coupled with fabrication of evidence to some
extent. All this has been dismissed by the Division Bench
saying that they could be clerical errors or arithmetical
errors.
POWER OF WRIT COURT TO DETERMINE DISPUTED
QUESTION OF FACT
47. One stock argument available with the State in this
type of cases is that the question whether the actual
physical possession of the disputed land had been taken
over or not is a seriously disputed question of fact,
which the High Court should not adjudicate or
determine in exercise of its writ jurisdiction. As a
principle of law, there need not be any debate on such a
proposition, but by merely submitting that it is a
seriously disputed question of fact, the same, by itself,
will not become a question of fact. To put it in other
words, having regard to the materials on record, which
falsifies the case of the State Government, then such
materials should not be overlooked or ignored by the
Court on the principle that the issue with regard to
taking over of the actual physical possession would be a
disputed question of fact.
48.Normally, the disputed questions of fact are not
investigated or adjudicated by a writ court while
exercising powers under Article 226 of the Constitution
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of India. But the mere existence of the disputed question
of fact, by itself, does not take away the jurisdiction of
this writ court in granting appropriate relief to the
petitioner. In a case where the Court is satisfied, like the
one on hand, that the facts are disputed by the State
merely to create a ground for the rejection of the writ
petition on the ground of disputed questions of fact, it is
the duty of the writ court to reject such contention and to
investigate the disputed facts and record its finding if the
particular facts of the case, like the one at hand, was
required in the interest of justice.
49. There is nothing in Article 226 of the Constitution to
indicate that the High Court in the proceedings, like the
one on hand, is debarred from holding such an inquiry.
The proposition that a petition under Article 226 must be
rejected simply on the ground that it cannot be decided
without determining the disputed question of fact is not
warranted by any provisions of law nor by any decision
of this Court. A rigid application of such proposition or
to treat such proposition as an inflexible rule of law or of
discretion will necessarily make the provisions of Article
226 wholly illusory and ineffective more particularly
Section 10(5) and 10(6) of the Act, 1976 respectively.
Obviously, the High Court must avoid such
consequences.
50. In the aforesaid context, we may look into the
decision of this Court in the case of State of Orissa v. Dr.
(Miss) Binapani Dei reported in AIR 1967 SC 1269. In
paragraph 6 at p. 1270 of the said judgment, this Court
has been pleased to hold as follows:-
"Under Art. 226 of the Constitution the High Court is not
precluded from entering upon a decision on questions of fact
raised by the petition. Where an enquiry into complicated
questions of fact arises in a petition under Art. 226 of the
Constitution before the right of an aggrieved party to obtain
relief claimed may be determined. The High Court may in
appropriate cases decline to enter upon that enquiry and may
refer the party claiming relief to a suit. But the question is
one of discretion and not of jurisdiction of the Court."
(Emphasis supplied)
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51. This Court in the case of Gunwant Kaur v. Bhatinda
Municipality reported in AIR 1970 SC 602 observed as
follows:-
"The High Court observed that they will not
determine disputed question of fact in a writ
petition. But what facts were in dispute and
what were admitted could only be determined
after an affidavit in reply was filed by the
State. The High Court, however, proceeded to
dismiss the petition in limine. The High Court
is not deprived of its jurisdiction to entertain
a petition under Art.226 merely because in
considering the petitioner's right to relief
questions of fact may fall to be determined. In
a petition under Art.226 the High Court has
jurisdiction to try issues both of fact and law.
Exercise of jurisdiction is, it is true,
discretionary, but the discretion must be
exercised on sound judicial principles. When
the petition raises questions of fact of a
complex nature, which may for their
determination require oral evidence to be
taken, and on that account the High Court is
of the view that the dispute may not
appropriately be tried in a writ petition, the
High Court may decline to try a petition.
Rejection of a petition in limine will normally
be justified, where the High Court is of the
view that the petition is frivolous or because
of the nature of the claim made, dispute
sought to be agitated., or that the petition
against the party against whom relief is
claimed is not maintainable or that the
dispute raised thereby is such that it would be
inappropriate to try it in the writ jurisdiction,
or for analogous reasons."
(Emphasis supplied)
52. In one of the recent pronouncements of this Court in
State of U.P. & Anr. v. Ehsan & Anr. reported in 2023
INSC 906, this Court observed that:-
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W.P.No.12384 OF 2005
"28. We are conscious of the law that existence
of an alternative remedy is not an absolute bar
on exercise of writ jurisdiction. More so, when a
writ petition has been entertained, parties have
exchanged their pleadings/ affidavits and the
matter has remained pending for long. In such a
situation there must be a sincere effort to decide
the matter on merits and not relegate the writ
petitioner to the alternative remedy, unless there
are compelling reasons for doing so. One such
compelling reason may arise where there is a
serious dispute between the parties on a
question of fact and materials/evidence(s)
available on record are insufficient/inconclusive
to enable the Court to come to a definite
conclusion.
29. Bearing the aforesaid legal principles in
mind, we would have to consider whether, in the
facts of the case, the High Court ought to have
dismissed the third writ petition of the first
respondent and relegate him to a suit as there
existed a serious dispute between the parties
regarding taking of possession. More so, when
the High Court, in the earlier round of
litigation, refrained from taking up the said
issue even though it had arisen between the
parties.
30. No doubt, in a writ proceeding between the
State and a landholder, the Court can, on the
basis of materials/evidence(s) placed on record,
determine whether possession has been taken or
not and while doing so, it may draw adverse
inference against the State where the statutory
mode of taking possession has not been
followed [See State of UP vs. Hari Ram
(supra)]. However, where possession is stated to
have been taken long ago and there is undue
delay on the part of landholder in approaching
the writ court, infraction of the prescribed
procedure for taking possession would not be a
determining factor, inasmuch as, it could be
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W.P.No.12384 OF 2005
taken that the person for whose benefit the
procedure existed had waived his right
thereunder [See State of Assam vs. Bhaskar
Jyoti Sarma, (supra)]. In such an event, the
factum of actual possession would have to be
determined on the basis of materials/evidence(s)
available on record and not merely by finding
fault in the procedure adopted for taking
possession from the land holder. And if the writ
court finds it difficult to determine such
question, either for insufficient/ inconclusive
materials/evidence(s) on record or because oral
evidence would also be required to form a
definite opinion, it may relegate the writ
petitioner to a suit, if the suit is otherwise
maintainable."
(Emphasis supplied)
53. Thus, it would all depend on the nature of the
question of fact. In other words, what is exactly, that the
writ court needs to determine so as to arrive at the right
decision. If the only issue, that revolves around the entire
debate is one relating to actual taking over of the
physical possession of the excess land under the
provisions of sub-sections (5) and (6) of Section 10 of the
Act, 1976 respectively, then in such circumstances, the
writ court has no other option but to go into the factual
aspects and take an appropriate decision in that regard.
The issue of possession, by itself, will not become a
disputed question of fact. If all that has been said by the
State is to be accepted as a gospel truth and nothing
shown by the landowner is to be looked into on the
ground that a writ court cannot go into disputed
questions of fact, then the same may lead to a serious
miscarriage of justice.
54. We are of the considered opinion that the issue as
regards taking over of the actual physical possession of
the excess land in accordance with the provisions of sub-
sections (5) and (6) of Section 10 of the Act, 1976 could
be said to be a mixed question of law and fact and not
just a question of fact. Mixed question of law and fact
refers to a question which depends on both law and fact
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W.P.No.12384 OF 2005
for its solution. In resolving a mixed question of law and
fact, a reviewing court must adjudicate the facts of the
case and decide relevant legal issues at the same time.
Mixed questions of law and fact are defined "as
questions in which the historical facts are admitted or
established, the rule of law is resolved and the issue is
whether the facts satisfy the statutory standard, or to put
it another way, whether the rule of law as applied to the
established facts is or is not violated". [Bausch & Lomb
v. United States C.I.T. 166, 169 (Ct. Int'l Trade 1997].
55. In the aforesaid context, we may refer to the
decision of this Court in Kolkata Municipal Corporation
and Another v. Bimal Kumar Shah and Others reported
in (2024) 10 SCC 533, wherein this Court in paras 28
and 29 respectively observed thus:-
"28. While it is true that after the 44th
Constitutional Amendment [the Constitution (44th
Amendment) Act, 1978], the right to property
drifted from Part III to Part XII of the
Constitution, there continues to be a potent safety
net against arbitrary acquisitions, hasty decision-
making and unfair redressal mechanisms. Despite
its spatial placement, Article 300-A [ 300-A of the
Constitution:"300-A. Persons not to be deprived
of property save by authority of law.--No person
shall be deprived of his property save by authority
of law."] which declares that "no person shall be
deprived of his property save by authority of law"
has been characterised both as a constitutional
and also a human right [Lachhman Dass v. Jagat
Ram, (2007) 10 SCC 448; Vidya Devi v. State of
H.P., (2020) 2 SCC 569 : (2020) 1 SCC (Civ) 799]
. To assume that constitutional protection gets
constricted to the mandate of a fair compensation
would be a disingenuous reading of the text and,
shall we say, offensive to the egalitarian spirit of
the Constitution.
29. The constitutional discourse on compulsory
acquisitions, has hitherto, rooted itself within the
"power of eminent domain". Even within that
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W.P.No.12384 OF 2005
articulation, the twin conditions of the acquisition
being for a public purpose and subjecting the
divestiture to the payment of compensation in lieu
of acquisition were mandated [State of Bihar v.
Kameshwar Singh, (1952) 1 SCC 528]. Although
not explicitly contained in Article 300-A, these
twin requirements have been read in and inferred
as necessary conditions for compulsory
deprivation to afford protection to the individuals
who are being divested of property [Hindustan
Petroleum Corpn. Ltd. v. Darius Shapur Chenai,
(2005) 7 SCC 627; K.T. Plantation (P) Ltd. v.
State of Karnataka, (2011) 9 SCC 1 : (2011) 4
SCC (Civ) 414] . A post-colonial reading of the
Constitution cannot limit itself to these
components alone. The binary reading of the
constitutional right to property must give way to
more meaningful renditions, where the larger
right to property is seen as comprising
intersecting sub-rights, each with a distinct
character but interconnected to constitute the
whole. These subrights weave themselves into
each other, and as a consequence, State action or
the legislation that results in the deprivation of
private property must be measured against this
constitutional net as a whole, and not just one or
many of its strands."
(Emphasis supplied
56. In the overall view of the matter, we are convinced
that the Division Bench of the High Court committed an
egregious error in interfering with a very well
considered and well-reasoned judgment rendered by the
learned Single Judge of the High Court. There was no
good reason for the Division Bench to interfere with the
judgment rendered by the learned Single Judge."
12. It is also relevant to note that judgment of Hari Ram (supra)
which is leading on the issue and thereafter subsequent judgements, all
are discussed in the latest judgment of Hon'ble Supreme Court in M/s
A.P. Electricals (supra). Therefore, without discussing the said settled
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W.P.No.12384 OF 2005
legal position in detail in the present petition also from the record of
the case, it is found that no proper procedure, as required under
section 10(5) and 10(6) of the Act, is complied with in accordance
with law by the respondent/authority for taking actual physical
possession of land in question. Therefore, any action which violates
provisions of section 10(5) and 10(6) of the Urban Land Ceiling Act,
1976 can be considered as void and illegal.
13. It is undisputed position of fact that there is no notice available
on the record to show that notice under section 10(6) of the Act is
issued before taking possession at all and even service of the notice on
petitioner or land owner which is issued under section 10(5) of the Act
is also not found in accordance with law, hence compliance of section
10(5) of the Act is also not found satisfactory. Therefore, on that
ground also and as physical possession is still with the petitioner,
present petition deserves to be allowed by granting the prayers made
in paragraph 7(i) to 7(vi) of the petition reproduced in para-1 above.
14. Accordingly, petition is allowed.
(SANDEEP N. BHATT)
JUDGE
MKL
MANOJ
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PRADESH JABALPUR,CID - 7057354,
postalCode=482001, st=Madhya Pradesh,
LALWANI
serialNumber=8c3e535065cece45851c1e
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Date: 2026.01.21 14:36:22 +05'30'
