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Judgment
Dr. B.R. Sarangi, J.—The petitioner being the land holder files this application to hold that the action taken subsequent to the notification u/s 10(1) of the Urban Land (Ceiling and Regulation) Act. 1978 (hereinafter referred to as the Act) is nonest in the eye of law and seeks to quash Annexure-3, the fetter dated 24.7.2002 issued by the Director, Municipal Administration end Ex-Officio, Addl. Secretary to Government of Odisha, Bhubaneswar and further seeks to hold that since the proceeding under the Urban land (Ceiling and Regulation) Act, 1976 abated, vesting of the surplus urban land with the Government did not arise at all.
The epitome of the fact in the case at hand is that the petitioner being a land holder has filed his return/statement u/s 6 of the Urban land (Ceiling and Regulation) Act, 1976 in respect of class ''B'' urban agglomeration. On the basis of the return/statement, draft statement was prepared u/s 8 of the Act which was communicated to the petitioner by notice No. 1083 dated 16.1993. The petitioner had filed his objection on 12.09.1983 and also submitted a representation on 15.11.1983 seeking for exemption u/s 20 of the Act. By then the final statement u/s 9 of the Act had been prepared and communicated to the petitioner. The petitioner filed an appeal u/s 3 of the Act. The final statement prepared u/s 9 of the Act was set aside by the appellate authority on 3.6.1986 and the matter was remanded back to the competent authority for adjudication on certain points vig. nature of the land on the crucial date of commencement of the Act vis-�-vis the relevant entry in the Hal settlement Record of Rights and the report of the Revenue Supervisor.
The competent authority again rendered a finding against the petitioner and maintained the final statement prepared earlier vide order dated 22.6.1987. Appeal preferred by the petitioner against such finding was also dismissed by order dated 28.02.1990. Against such appellate order, the petitioner filed a writ petition bearing O.J.C. No. 3742 of 1990, which was also dismissed by this Court on 7.11.1990 at the stage of admission. The petitioner preferred SLP (Civil) No. 2701 of 1991 against summary dismissal of the writ application which was dismissed by the apex Court on 22.11.1993. With the dismissal of the SLP, the finding of facts rendered by the competent authority'', confirmed by the appellate authority reached its finality and as such are not available to be interfered with as those have become conclusive for all times to come.
During pendency of the proceeding before the competent authority, statutory appeal, the writ application as well as the SLP, the representation dated 15.11.1983 for exemption under the provisions of Section 20 of the Act remained pending and the same is lying undisposed of till date. Notice u/s 10(1) of the Act was issued on 11.5.1984 during pendency of the said representation and steps subsequent to such notification were also taken. It is stated that when the matter was sub-judice before the apex Court, the competent authority by letter No. 1624 dated 15.7.1991 and letter No. 2331 dated 1.10.1993 was pleased to forward the comments upon the representation u/s 20 of the Act to the State Government and the matter is still pending for consideration and no response has also been communicated so far in respect of the representation dated 10.12.1991 under Annexure-1, requesting the competent authority to communicate the decision taken on the representation u/s 20 of the Act However, a representation vide Annexure-2 dated 16.3.1994 has also been duly acknowledged by opposite party No. 1 and in August, 1996, the opposite party No. 2 recommended for exemption in favour of twenty-two returnees u/s 20 of the Urban Land (Ceiling and Regulation) Act, 1976 and the petitioner''s name has been shown at serial seventeen of the said list of returnees.
Mr. S.K. Dash, learned counsel for the petitioner states that the possession of the vacant land in excess of the Ceiling limit, which is culled out hereunder from the draft statement has not been taken over till date in the manner laid down under Sub-section (6) of Section 10 of the Act. The petitioner being in actual physical/cultivating possession of such land is also continuously paying rent to the Government till date, which fact has not been traversed in any manner. The same are given as under :-
Part-F
Particular of the extent and Identified of the lands to be surrendered, State; Orissa. Taluk: Sadar Cuttack, Village : Palsa, Survey No. & Sub-Division No. of other identification No. given for revenue
Khata
Plot
Area
32
536 (P)
Ac. 0.170
128
284
Ac. 1.220
158
380
Ac. 0.120
381
Ac. 0.130
Total
Ac. 1.640 or 66.33 sq.mtr.
It is further stated that without disposing of the application for exemption u/s 20 of the Urban Land (Ceiling and Regulation) Act, 1976, steps taken subsequent to the notification u/s 10(1) of the Act is no nest in the eye of law. The opposite parties are duty bound to dispose of the application u/s 20 of the Act and any subsequent act beyond the publication of notification under Sub-section (1) of Section 10 of the Urban Land (Ceiling and Regulation) Act, 1976 is void and nonest in the eye of law, as the same was made notwithstanding the pendency of the application u/s 20 of the Act. In support of his contention, Mr. S.K. Dash, learned counsel for the petitioner has relied upon the judgments of this Court in Basanta Kumar Sahoo Vs. The State of Orissa and Others, and in Rarmeswar Nath Suthoo Vs. State of Orissa and Another, It is stated that in the case sat hand neither the possession of the land has been taken in the manner laid down under Sub-section (6) of Section 10 of the Act nor any amount has been paid to the petitioner as compensation. Therefore, the proceeding under the Act stood abated without vesting of the aforementioned land. To support his contention, he has relied upon the judgments of the apex Court in Smt. Sulochana Chandrakant Galande Vs. Pune Municipal Transport and Others, and of the Karnatak High Court in Mangalore Urban Development Authority Vs. Leelavathi and Others, It is stated that the provisions of Section 10(3) of the Act, 1976 are analogous to Section 16 of the Land Acquisition Act. 1894, therefore it is only after taking over possession of the acquired tend in the prescribed manner, the land would vest absolutely in the State Government and to support this contention, he has relied upon the judgments of the apex Court in Jethmull Bhojraj Vs. State of Bihar and Others, , State of Rajasthan and Others Vs. D.R. Laxmi and Others, , May George Vs. Special Tahsildar and Others, and Raghubir Singh Sehrawat v. State of Haryana, (2012) 1 SCC 192 : 2012 (I) OLR (SC) 436.
Mr. P.K. Biswal, learned Addl. Govt. Advocate appearing for the State states that the final statement u/s 9 of the Act having been prepared and communicated, the petitioner preferred an appeal u/s 12 of the Act and the same has been set aside by the appellate authority, and the matter was remanded back to the competent authority for adjudication. The competent authority rendered a finding against the petitioner and maintained the final statement prepared earlier, against which order writ petition was preferred and was dismissed vide order dated 7.11.1990 by this Court at the stage of admission. Against which order, the SLP was preferred by the petitioner before the apex Court vide SLP (Civil) No. 2701 of 1991 and the same having been dismissed on 22.11.1993, the petitioner cannot re-open the selfsame matter in the present writ application which has reached its finality.
After hearing learned counsel for the parties and perusing the records, it appears that the findings arrived at by the competent authority on consideration of the final statement published u/s 9 of the Act having reached its finality on being confirmed by the order passed by the apex Court, cannot be reopened, but the fact remains that the application for exemption filed by The petitioner by way of representation dated 15.11.1983 remained pending and was lying undisposed of till date and during pendency Of such representation, notice u/s 10(1) of the Act was issued on 11.5.1984 and steps subsequent to the notification has also been taken. During pendency of the proceeding before the apex Court, the competent authority by letter No. 1624 dated 157.1991 and letter No. 2331 dated 1.10.1993 forwarded the comments upon the representation u/s 20 of the Urban Land (Ceiling and Regulation) Act, 1976 to the State Government, which is still pending for consideration and no response has also been received so far in respect of the representation dated 10.12.1991 Under Annexure-1. Request has been made to communicate the decision taken on the representation filed u/s 20 of the Urban Land (Ceiling and Regulation) Act, 1976, even vide Annexure-2, the representation dated 18.3.1994 which has been duly acknowledged by the authority. But no decision has been taken on the representation filed u/s 20 of the Urban Land (Ceiling and Regulation) Act, 1976.
In August, 1996 opposite party No. 2 recommended for exemption in favour of twenty-two returnees u/s 20 of the Urban Land (Ceiling and Regulation) Act, 1976 in which list, the name of the petitioner finds place at serial No. 17. No decision has been taken till date by the State Government on the representation dated 15.11.1983 filed u/s 20 of the Act and the matter is still pending with the Government.
When the competent authority recommended in favour of a decision for exemption in favour of twenty-two returnees u/s 20 of the Act including the petitioner at serial No. 17 of the list, the same should have received due consideration. In Basanta Kumar Sahoo and others (Supra), this Court has settled a principle of law that the proceeding beyond the stage of Section 10(2) of the Act should not be allowed to continue prior to disposal of the application u/s 20 of the Act. Applying the law laid down in Basanta Kumar Sahoo and others (supra) to the present case at hand, it is held that the competent authority could not have proceeded beyond Section 10(2) of the Act before disposal of the application filed u/s 20 of the Act Any action taken without disposing of the application filed u/s 20 of the Act and/or causing inordinate delay in such disposal, substantially and prejudicially affecting the rights of the petitioner, goes deep to the root of the matter. Therefore, the acquisition of plots in question by the State Government u/s 10(3) of the Act without disposing of the application for exemption u/s 20 of the Act is void and no nest in the eye of law. Law requires that the application filed u/s 20 of the Act has to disposed of first, whereafter the proceeding beyond the stage u/s 10(1) of the Act can be proceeded with.
The State of Orissa adopted Urban Land (Ceiling and Regulation) repeal Act, 1999 and consequent upon such adoption, opposite party No. 1 does not retain its authority any more to consider the application submitted by the petitioner u/s 20 of the Urban Land (Ceiling and Regulation) Act. 1976. As a result of the change in law, subsequent acts beyond the publication of notification under Sub-section (1) of Section 10 of the Urban Land (Ceiling and Regulation) Act, 1976 are void and inoperative in the eye of Law inasmuch as the notification under Sub-section (1) of Section 10 was made notwithstanding the pendency of the application u/s 20 of the Urban Land (Ceiling and Regulation) Act, 1976, which is absolutely misconceived one. Opposite party No. 1 vide letter No. Legis (ULC) 27/02, 27981/HUD dated 24.7.2002 in Annexure-3 directed the competent authority to take steps for payment of compensation in respect of the land taken over prior to adoption of Urban Land [Ceiling and Regulation) Repeal Act, 1999. In view of the fact that the statute has been repealed without any saving clause regarding payment of compensation for the land which has already been taken over, opposite party No. 1 Instead of directing payment of compensation should have directed restoration of the land as it is well settled that save and except by operation of law, no land of a citizen is available to be acquired by the Government. Where the process of acquisition is not complete with the payment of compensation by the time the Act stood repealed, the land should be restored. Therefore, the decision of the State Government to pay, the compensation and retain the land even when the possession was taken over, cannot be sustained Apart from the above, with the repeal of Act. 1976 vesting of any vacant land under Sub-section (3) of Section 10 of the Act, 1976 is not affected in case possession has been taken over prior to the repeal of the principal act and such land is not liable to be restored, if the compensation amount so paid by the State Government in respect of such land is rot refunded
In the case in hand, neither the possession of the land has been taken in the manner laid down under Sub-section (6) of Section 10 of the Act nor any amount has been paid to the petitioner in respect of such land and consequently the proceeding under the Act stood abated without vesting of the said land. In Sulochana Chandrakant Galanda (supra), the apex Court held that:
"xxx xxx 36. Undoubtedly, the Act, 1976, stood repealed by the Act 1999. However, it has no bearing on this case for the reason that proceeding pending in any Court relating to the Act, 1976, stood abated, provided the possession of the land had not been taken from the owner. Therefore, in a case, where the possession has been taken, the repeal of the Act would not confer any benefit on the owner of the land. Amrit Vanaspati Co. Ltd. Vs. Khem Chand and Another, ; Ghasitey Lal Sahu and another, v. Competent Authority. (2004) 13 SCC 452; and Mukarram Ali Khan Vs. State of U.P. and Others, xxx xxx "
Similar view has also been taken by the Karnataka High Court in Mangalore Development Authority (supra), in paragraph-12 of Sulochana Chandrakant Galande (supra), the apex Court held that the provisions of Section 10(3) of the Act, 1976 are analogous to Section 16 of the Land Acquisition Act, 1894 and it is only after takeover of the possession of the acquired land in prescribed manner, the land would vest absolutely in the State Government. The same view has also been reiterated by the apex Court in Jethmull Bhojraj. State of Rajasthan, May George and Raghubir Singh Sehrawat (supra).
In view of the aforesaid law laid down by the apex Court, since the application u/s 20 of the Urban Land (Ceiling and Regulation) Act, 1976 was pending for consideration and no decision has been taken on the same nor any compensation is paid, steps taken subsequent to Section 10(1) of the Act is void. In that case the repealing act has also no effect Consequence thereof, the land stood reverted back to the original owner as the proceeding has since been abated Though the application u/s 20 of the Urban Land (Ceiling and Regulation) Act, 1976 is pending for consideration and opposite party No. 2 has requested for exemption in favour of twenty-two returnees u/s 20 of the Urban Land (Ceiling and Regulation; Act, 1976 in which the petitioner name finds place at serial No. 17, this Court finds the opposite party No. 1 no more competent to take a decision on the application filed by the petitioner u/s 20 of the Urban Land (Ceiling and Regulation) Act, 1976 and act upon the recommendation made by the opposite party No. 2 for exemption in favour of the twenty-two returnees u/s 20 of the Act since adoption of Urban Land (Ceiling and Regulation) Repeal Act, 1999.
Inevitably, the writ petition is disposed of with a direction to the Opposite Party No. 1 not to hold the land of the petitioner any more as ceiling surplus, by operation of law.