Radheshyam Raikwar vs State Of Madhya Pradesh

S.K. Gangele, J.

This petition has been filed against the order dated 5.5.2010 passed by Additional Collector (Competent Authority) under the Urban Land Ceiling,

Jabalpur.

Ceiling proceedings were initiated against the mother of the petitioner, 11,973.33 Sq. meters land situate at Village Oriya Tahsil and District

Jabalpur was declared as excess/ surplus. It was agricultural land. After the death of the mother of the petitioner, petitioner has been in possession on

the land. After coming into force of Urban Land (Ceiling and Regulation) Repeal Act, 1999 petitioner submitted an application before the competent

authority/ Additional Collector that the petitioner is in possession on the land. The possession was not taken over by the State Government. Hence, the

entrees made in the revenue record to the effect that State Government is owner of the land be corrected and name of the petitioner be recorded as

owner of the land.

Aforesaid application was rejected by the authority vide order dated 30.4.2005. Against the aforesaid order petitioner filed a writ petition before this

Court, which was registered as W. P. No.4392/2005. Learned Single Bench this Court has disposed of aforesaid writ petition with the following

directions :

“Invoking the extra-ordinary jurisdiction of this Court under Article 226 and 227 of the Constitution of India, the petitioner has prayed for

quashment of the order dated 30.4.2005 passed by the Additional Collector (competent authority) under the Urban Land (Ceiling and Regulation) Act,

1999 (for brevity, the “Repeal Actâ€) in case No.1596/B-121/93-94 whereby the competent authority came to hold that the possession has been

taken over and, therefore, the benefit of Section 4 has not been given. In the case of Khuman Singh and ors Vs. State of M. P. and ors. In W. P.

No.1845/2001 after discussing the law in the field this Court had directed as under :

“Mr. L. N. Namdeo, learned counsel for the petitioners has submitted that the possession has only been taken over on papers but the same has

really not been taken over, as records would clearly show. On the contrary, Mr. Ajay Raizada, learned Government Advocate submitted that the

possession has been taken over as per the provisions of the principal Act. This being a disputed question of fact this Court cannot enter into the same

to find out whether the possession, as an actual fact, has been taken over. Mr. Raizada has contended that the office of the competent authority has

not been abolished. In view of this, I am inclined to direct that the petitioners shall put forth their grievance before the competent authority that the

possession has not been taken over and therefore, no further action can be taken as Section 4 clearly situlates all proceedings except proceedings

under Sections 11, 12, 13 and 14 would abate. In fact, in the case of N. Audikesava Reddy (Supra). It was clearly laid down that if the possession is

not taken over the same cannot be taken over by the State Government. Keeping in view the factual scenario, it is directed that the competent

authority shall afford an opportunity of hearing to the petitioners to put forth their grievance that how the possession has not been taken over as per

law and nothing subsists to be done in the proceeding. It will be open to the petitioners to raise all the contention from all fours relating to the factum of

taking over of possession.â€​

If aforesaid directions are applied to the present case, it is quite clear that the order passed by the competent authority is totally vulnerable.

In view of the aforesaid, I am inclined to direct that the order contained in Annexure P2 dated 30.4.2005 is quashed and matter is remitted to the said

authority for disposal in accordance with the parameters enshrined under Section 10 of the original enactment.

With the aforesaid direction, the writ petition is allowed to the extent indicated above.â€​

After aforesaid direction of this Court the authority conducted the investigation in regard to possession of the petitioner. As per petitioner, he was

found in possession on the land in spite of that authority dismissed the application vide order dated 5.5.2010 (Ann. P.6).

Learned counsel for the petitioner has submitted that in accordance with the provision of Section 10 (5) and Section 10 (6) of the Act 1976 no

notice was served on the person whose land was declared as excess and also on the petitioner, symbolic possession of the land was taken over. The

petitioner is still in possession on the land. Hence land cannot be said to be vested with the State Government. Additional Collector/ Competent

Authority has committed an irregularity in not considering the principle of law. In support of his contentions learned counsel for the petitioner placed

reliance on the following judgments of the Apex court and of this Court :

(1) State of U. P. Vs. Hari Ram(2013) 4 SCC 280

(2) Nirmala J. Jhala Vs. State of Gujarat (2013) 4 SCC 301.

(3) State of M. P. Vs. Rajubai (W. P. No.558/2016).

(4) Thamman Chand Koshta Vs. State of M. P. 2016 (2) MPLJ 623.

(5) Hemraj Kachhi Vs. State of M. P. (W. A. No.854/2014).

(6) Ram Kumar Pathak Vs. State of M. P. (W. A.No.734/08).

(7) State of M. P. Vs. Smt. Gayatri Devi (WA 921/2016.)

Learned counsel for the State has submitted that after due inquiry the land was declared excess/ surplus. Thereafter, possession of the land was

taken over and name of the State Government was recorded as owner of the land. The competent authority has rightly passed the order.

Division Bench of this Court has considered in detail the question of service of notice under Section 10 (5) and 10 (6) the Act of 1976 and the

provisions of Repeal Act 1999 in the matter of State of M. P. & Ors. Vs. Rajubai and others in W. A. No.558/2016 and held as under :

Before we examine the respective contention of the parties, the relevant provisions of the Statute need to be reproduced:-

Acquisition of vacant land in excess of ceiling limit. â€"(1) As soon as may be after the service of the statement under Section 9 on the person

concerned, the competent authority shall cause a notification giving the particulars of the vacant land held by such person in excess of the ceiling limit

and stating thatâ€

(i) such vacant land is to be acquired by the concerned State Government; and

(ii) the claims of all persons interested in such vacant land may be made by them personally or by their agents giving particulars of the nature of their

interests in such land, to be published for the information of the general public in the Official Gazette of the State concerned and in such other manner

as may be prescribed.

(2) After considering the claims of the persons interested in the vacant land, made to the competent authority in pursuance of the notification published

under sub-section

(1), the competent authority shall determine the nature and extent of such claims and pass such orders as it deems fit.

(3) At any time after the publication of the notification under sub-section (1), the competent authority may, by notification published in the Official

Gazette of the State concerned, declare that the excess vacant land referred to in the notification published under sub-section (1) shall, with effect

from such date as may be specified in the declaration, be deemed to have been acquired by the State Government and upon the publication of such

declaration, such land shall be deemed to have vested absolutely in the State Government free from all encumbrances with effect from the date so

specified.

(4) During the period commencing on the date of publication of the notification under sub-section (1) and ending with the date specified in the

declaration made under sub-section (3),â€

(i) no person shall transfer by way of sale, mortgage, gift, lease or otherwise any excess vacant land (including any part thereof) specified in the

notification aforesaid and any such transfer made in contravention of this provision shall be deemed to be null and void; and

(ii) no person shall alter or cause to be altered the use of such excess vacant land

(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 authorised by the State

Government in this behalf within thirty days of the service of the notice.

(6) If any person refuses or fails to comply with an order made under sub-section (5), the competent authority may take possession of the vacant land

or cause it to be given to the concerned State Government or to any person duly authorised by such State Government in this behalf and may for that

purpose use such force as may be necessary.

Explanation.â€"In this section, in sub-section (1) of Section 11 and in Sections 14 and 23, “State Governmentâ€​, in relation toâ€

(a) any vacant land owned by the Central Government, means the Central Government;

(b) any vacant land owned by any State Government and situated in a Union territory or within the local limits of a cantonment declared as such under

Section 3 of the Cantonments Act, 1924 (2 of 1924) means that State Government.

In terms of Section 10 (1) of the Act, it was incumbent upon the competent authority to give notice to all person interested in such vacant land

either personally or through their agent by giving particulars of their interest as is required to be given under Section 10 of the Act. Since the petitioner

was in possession and such possession having been recognized by virtue of an order passed by the Tehsildar on 29th October, 1987, thus the writ

petitioner was an interested party and hence the notice was required to be issued before publication of notification under Section 10(3) of the Act.

Still further, in terms of sub Section (5) of Section 10 of the Act, the competent authority is required to serve a notice in writing to deliver

possession, who may be in possession of the land which vested in the State Government. The writ petitioner was in possession of the land which is

evident from the mutation sanctioned on 29.10.1987. It was only on 15.2.1999 (Annexure R-4), the request of the petitioners not to take possession

was declined for the reason that the land vest with the 7 State under the Act. Such order, in fact, approves the possession of the petitioners over the

land in question. Still further the Panchnama (Annexure R-3) again shows that the land was in possession of the writ petitioners, therefore, in the

absence of notice as required under sub Section (5) of Section 10 of the Act, the land would be covered by Section 3 of the repealing Act as it will not

vest with the State.

The Hon'ble Supreme Court in a judgment reported as (2013) 4 SCC 280 State of U.P. Vs Hari Ram in the context of the Act, held that the de-

facto possession is required to be taken by the State and not de jure. The Court held that the Act deals with deemed vesting or deemed acquisition, but

the keeping in view the provisions of the Act, unless the possession is taken in terms of Section 10 (5) of the Act, the land cannot be said to be vested

with the State Government. The proceedings of taking possession Annexure-R3 shows that it is only a paper possession without taking actual

possession from the land owner and without giving notice to person who is in possession. The person in possession is required to be given notice under

sub-sections (5) and (6) of Section 10. The relevant extract from the Supreme Court judgment read as under :-

“30. Vacant land, it may be noted, is not actually acquired but deemed to have been acquired, in that deeming things to be what they are not.

Acquisition, therefore, does not take possession unless there is an indication to the contrary. It is trite law that in construing a deeming provision, it is

necessary to bear in mind the legislative purpose. The purpose of the Act is to impose ceiling on vacant land, for the acquisition of land in excess of

the ceiling limit thereby to regulate construction on such lands, to prevent concentration of urban lands in the hands of a few persons, so as to bring

about equitable distribution. For achieving that object, various procedures have to be followed for acquisition and vesting. When we look at those

words in the above setting and the provisions to follow such as sub-sections (5) and (6) of Section 10, the words “acquired†and “vestedâ€

have different meaning and content. Under Section 10(3), what is vested is de jure possession not de facto, for more reasons than one because we are

testing the expression on a statutory hypothesis and such an hypothesis can be carried only to the extent necessary to achieve the legislative intent.

The ‘vesting’ in sub-section (3) of Section 10, in our view, means vesting of title absolutely and not possession though nothing stands in the

way of a person voluntarily surrendering or delivering possession. The court in Maharaj Singh v. State of UP and Others (1977) 1 SCC 155, while

interpreting Section 117(1) of U.P. Zamindari Abolition and Land Reform Act, 1950 held that ‘vesting’ is a word of slippery import and has

many meaning and the context controls the text and the purpose and scheme project the particular semantic shade or nuance of meaning. The court in

Rajendra Kumar v. Kalyan (dead) by Lrs. (2000) 8 SCC 99 held as follows:

“We do find some contentious substance in the contextual facts, since vesting shall have to be a “vesting†certain. “To

vest, generally means to give a property in.†(Per Brett, L.J. Coverdale v. Charlton. Stroud’s Judicial Dictionary, 5th edn. Vol. VI.) Vesting in

favour of the unborn person and in the contextual facts on the basis of a subsequent adoption after about 50 years without any authorization cannot

however but be termed to be a contingent event. To “vestâ€, cannot be termed to be an executor devise. Be it noted however, that “vestedâ€

does not necessarily and always mean “vest in possessionâ€​ but includes “vest in interestâ€​ as well.

Before we examine sub-section (5) and sub-section (6) of Section 10, let us examine the meaning of sub-section (4) of Section 10 of the Act,

which says that during the period commencing on the date of publication under sub-section

(1), ending with the day specified in the declaration made under sub-section (3), no person shall transfer by way of sale, mortgage, gift or otherwise,

any excess vacant land, specified in the notification and any such transfer made in contravention of the Act shall be deemed to be null and void.

Further, it also says that no person shall alter or cause to be altered the use of such excess vacant land. Therefore, from the date of publication of the

notification under sub-section (1) and ending with the date specified in the declaration made in sub-section (3), there is no question of disturbing the

possession of a person, the possession, therefore, continues to be with the holder of the land.

Peaceful dispossession

Sub-section (5) of Section 10, for the first time, speaks of “possession†which says that where any land is vested in the State Government

under sub-section (3) of Section 10, the competent authority may, by notice in writing, order any person, who may be in possession of it to surrender or

transfer possession to the State Government or to any other person, duly authorised by the State Government.

If de facto possession has already passed on to the State Government by the two deeming provisions under sub-section (3) of Section 10, there is

no necessity of using the expression “where any land is vested†under sub-section (5) of Section 10. Surrendering or transfer of possession under

sub-section (3) of Section 10 can be voluntary so that the person may get the compensation as provided under Section 11 of the Act early. Once there

is no voluntary surrender or delivery of possession, necessarily the State Government has to issue notice in writing under sub-section (5) of Section 10

to surrender or deliver possession. Sub-section (5) of Section 10 visualises a situation of surrendering and delivering possession, peacefully while sub-

section (6) of Section 10 contemplates a situation of forceful dispossession.

Forceful dispossession

The Act provides for forceful dispossession but only when a person refuses or fails to comply with an order under sub-section (5) of Section 10.

Sub-section (6) of Section 10 again speaks of “possession†which says, if any person refuses or fails to comply with the order made under sub-

section (5), the competent authority may take possession of the vacant land to be given to the State Government and for that purpose, forceâ€"as may

be necessaryâ€"can be used. Sub-section (6), therefore, contemplates a situation of a person refusing or fails to comply with the order under sub-

section (5), in the event of which the competent authority may take possession by use of force. Forcible dispossession of the land, therefore, is being

resorted to only in a situation which falls under sub-section (6) and not under sub-section (5) of Section 10. Sub-sections (5) and (6), therefore, take

care of both the situations i.e. taking possession by giving notice, that is, “peaceful dispossession†and on failure to surrender or give delivery of

possession under Section 10(5), then “forceful dispossessionâ€​ under sub-section (6) of Section 10.

The requirement of giving notice under sub-sections (5) and (6) of Section 10 is mandatory. Though the word “may†has been used therein,

the word “may†in both the sub-sections has to be understood as “shall†because a court charged with the task of enforcing the statute needs

to decide the consequences that the legislature intended to follow from failure to implement the requirement. Effect of non-issue of notice under sub-

section (5) or sub-section (6) of Section 11 is that it might result in the landholder being dispossessed without notice, therefore, the word “mayâ€

has to be read as “shallâ€​.â€​

Since the revenue record records the possession of the writ petitioners and also the proceedings to take over possession, therefore, the writ

petitioner was entitled to a notice to deliver possession to the State in terms of Section 10(5) of the Act and on failure of the writ petitioners to hand

over possession to use force in terms of Sub Section 6 of Section 10 of the Act. Since the Repeal Act contemplates that if possession has not been

taken, the land will not vest with the State Government. Therefore, the land in question would not vest with the State Government.â€​

In my opinion it is not necessary to consider other judgments of Hon'ble Apex Court on the aforesaid question of law because the Division Bench

has considered the judgments of the Hon'ble Apex Court.

In reply filed on behalf of the respondent/ State it is pleaded that the order was passed in accordance with the provisions of Urban Land (Ceiling

and Regulation) Act, 1976 and 11,973.33 Sq. meters land was declared as surplus land. Thereafter, proceedings were proceeded and notice under

Section 10 (5) of the Act of 1976 was issued on 28.5.1994 to the petitioner. It was mentioned in the notice that if the possession of surplus land is

not handed over within thirty days from today then possession of the surplus land would be taken forcefully. Petitioner received the notice but did not

comply with the notice and did not hand over the possession of surplus land. After that on 30.9.1994 the possession of the land was taken over from

the petitioner. Hence, the petitioner is not eligible to get the surplus land bake in accordance with provisions of Repeal Act. Copy of the notice has

been filed as Annexure R.1.

No document has been produced by the respondent to the effect that aforesaid notice was served on the petitioner. Petitioner filed a Panchnama

report along with the statements of the persons made before the Revenue Authority to the effect that possession of the land was with the petitioner.

Apart from this, no notice was issued to the petitioner in accordance with the provision of Section 10 (6) of the Act of 1976. Aforesaid point has

been considered by the Division Bench of this Court in the matter of Brijesh Gautam Vs. State of M. P. passed in W. P. No.509/2017 and Division

Bench has held as under :

“The argument of the appellant was that the possession of land was not taken as provided under Sub-section (6) of Section 10 of the Act,

therefore, ownership rights of the appellant are not disturbed under the Act and the appellant is entitled to continue as owner of the land after the said

Act was repealed on 22.3.1999 by enactment of the Urban Land (Ceiling and Regulation) Repeal Act, 1999.

Learned counsel for the appellant raised a short argument that State has not served any notice as contemplated under Sub-Section (6) of Section 10 of

the Act, which alone will conclude the vesting of the ownership in the State. It is argued that such aspect has been examined by a Division Bench of

this Court in Writ Appeal No.558/2016 (State of M.P. and others Vs. Rajubai and others) decided on 6.7.2017. In view of the aforesaid judgment, the

land cannot be said to be vested with the State.

Mr.Dwivedi, learned counsel for the State admits that there is no proof of any notice having served upon either on Imarti Bai or Dasoda Bai, which

may vest the land in favour of the State.

In view of the judgment of this Court in Rajubai (supra), we find that the order passed by the learned Single Bench cannot be sustained in law. The

same is set aside. The Revenue Authorities are directed to correct the Revenue record from the ownership of the State to that of the appellant in

accordance with law.

Writ Appeal stands allowed and disposed of.â€​

In view of the law laid down by the Division Bench of the Court and the facts of the present case, in my opinion no notice was served on the

petitioner in accordance with the provision of Section 10 (6) issued under Section 10 (5) of the Act of 1976 (Ann. R.1). No notice was issued or

served upon the petitioner as contemplated under sub-Section 6 of Section of the Act of 1976. Hence, the petitioner is entitled to get the benefit of

Repeal Act 1999. Consequently, this petition is allowed, the order dated 5.5.2010 (Annexure P.6) passed by the competent authority is hereby

quashed. Revenue Authorities are directed to correct the revenue record and mention the name of the petitioner as owner of the land.

No order as to costs.