State Of Madhya Pradesh & Others vs Prabhat Kumar Thapadiya

This Second Appeal has been filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 31/3/2005 passed by 4th Additional District Judge, Bhopal in Civil Appeal No.34-A/2004 whereby learned ADJ affirmed the judgment and decree dated 16/4/2004 passed by IInd Civil Judge Class-I, Bhopal in Civil Suit No.96-A/2002 whereby learned Civil Judge declared void the proceedings by which 62616.97 square meters of respondent/plaintiff's land situated at village Bhanpur, Tahsil Huzur, Distt. Bhopal was declared surplus land and held that the respondent was entitled to get his name entered in the revenue records on that land and also to restrain the appellants/defendants from interfering in the possession of the respondent in that land.

Brief facts of the case which are relevant to the disposal of this case are that on 21/12/2000 the respondent/plaintiff filed a suit before Civil Judge Class-I Bhopal averring that he is the owner of the land bearing revenue survey nos.13/2 and 12/2 area 15.17 acre of land situated at village Bhanpur, Tahsil Huzur, Distt. Bhopal. Out of that land 62616.97 square metres of land was declared surplus land, under the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as "the Act"). Against that order, the plaintiff/respondent filed an appeal before Commissioner, Bhopal Division under Section 33 of the Act. During pendency of the appeal, the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as "Repeal Act") came into effect in the State of Madhya Pradesh. After enforcement of the Repeal Act, the appellants/defendants have no right to take possession of the land and the right vested in the appellants/defendants seized in such case since neither the possession of surplus land was taken prior to repealing the earlier Act nor compensation was given to the respondent. Though on 04/12/2000, the officers of the appellants/defendants made efforts to take possession, the appellants/defendants have no right, title and interest in the aforesaid land therefore, title and possession of the plaintiff on the aforesaid disputed land be declared and the appellants/defendants be restrained from interfering in the possession of the respondent/plaintiff on that land. On behalf of the appellants/defendants written statement was filed stating that the order to declare the aforesaid land as surplus land under the Act was passed in accordance with the law complying with all mandatory formalities and that was final and the possession of the land was taken over on 31/10/1992 after giving notice to the respondent/plaintiff and in this regard, entry has been made in the revenue record, and compensation also has already been determined therefore, the respondent/plaintiff has no right, title and interest in the disputed land. Respondent/plaintiff cannot get any benefit of the Repeal Act, therefore, this suit be dismissed.

The learned trial Court after considering the evidence adduced by both the parties arrived at the conclusion that possession of the surplus land was not taken by the defendants/appellants on 21/10/1992, therefore, as per the provision of the Repeal Act, the order declaring the land surplus becomes void. So, the respondent/plaintiff who is in possession on the land as the owner is entitled to declare him the owner of that land and decreed the plaintiff's suit.

Learned appellate Court also confirmed the aforesaid findings and dismissed the appeal of the appellants/defendants on the ground that the findings of trial Court that no possession of surplus land was taken from the respondent is not erroneous and the trial Court has not committed any legal error in passing the decree in favour of the respondent/plaintiff.

Learned counsel for the appellants submitted that there is sufficient evidence on record to prove the facts of taking possession while both the Courts below have ignored the evidence and recorded erroneous finding on the point and have failed to appreciate the Panchnama dated 21/10/1992 (Ex.P-7/Ex.D-4) which is a strong proof of taking possession of the land by the appellants/defendants and the land was recorded in the revenue paper in the name of the appellants/defendants on 21/10/1992 and the suit was filed on 21/12/2000 which was time barred and not maintainable and after service of notice under Section 10(1) of the Act the plaintiff has failed to file any objection. Therefore, the findings of both the Courts below that proceeding with regard to declaration of surplus land under the Act is illegal, erroneous and contrary to the evidence and the facts and circumstances of the case. Hence, the impugned judgment be set aside.

This Court vide order dated 5/10/2007 has admitted this appeal on following substantial question of law :

(1) "Whether the proceedings for taking possession of the surplus land under Section 10(6) of the Urban Land (Ceiling and Regulation ) Act, 1976 were bad as before the expiry of period of 30 days from issuance of notice Annexure D-3 dated 3/10/1992, the possession was taken over on 21/10/1992 ?

(2) Whether the suit filed on 20/12/2000 was within limitation as the possession was taken over by the Tahsildar under Section 10(6) of the Act on 21/10/1992, and cause of action arose on that day ?"

Learned counsel appearing on behalf of the respondent/plaintiff has submitted that in this case question of limitation does not arise. The suit is based on the provision of the Repeal Act which came into effect on 17/2/2000 and the suit was filed on 21/12/2000, therefore, question no. 2 is insignificant in this case. Similarly, so far as the Panchnama with regard to taking possession of the land is concerned, both the Courts below have considered evidential value of the Panchnama dated 21/10/1992 (Ex.P-7/Ex.D-4) which is not prepared at the spot in the presence of the parties after giving due notice. There is also no evidence with regard to demarcation of the boundaries of the land as without fixing the boundaries after demarcation the proceeding for taking possession could not take place. The Panchnama is fictitious and prepared just to deprive the plaintiff of his valuable right of the land, therefore, learned trial Court has not committed any error in discarding the evidence of the Panchnama and further submitted that both the learned Courts below have not committed any error in decreeing the suit and passing the impugned judgment and decree.

Having heard learned counsel for both the parties and on perusal of the record, in view of this Court, the cause of action has arisen on the basis of the provision of the Repeal Act. In the case, the limitation will not run from the entry in the Revenue Record (Khasra) with regard to the vesting of the land in the name of the appellants/defendants. The cause of action arose on 17/2/2000 under the provisions of the Repeal Act and the suit was filed on 21/12/2000 for declaration and injunction, which can be filed within three years from the date of denial of the title and interfering in the possession, therefore, the suit is not time-barred and the date of entry in the Revenue Record (Khasra) is not relevant. The suit filed by the respondent is well within time.

As regard to question number 1, learned counsel for the appellants submitted that the both the Courts below wrongly held that in the case respondent was not given any notice under section 10(5) of the Act, 30 days prior to the date of taking possession of the surplus land under Section 10(6) of the Act and also committed mistake in holding the proceedings of acquisition of surplus land invalid on that basis. While from the Ex.P/6 filed by the respondent himself it is proved that notice under section 10(5) of the Act was served on the respondent on 08/10/1992 before taking possession of surplus land and the notice issued on 03/10/1992 under Section 10(5) of the Act was sufficient to take possession of the land under Section 10(6) of the Act. Even merely on the ground of non-compliance of Section 10 (5) of the Urban Land (Ceiling and Regulation) Act, 1976, the proceeding with regard to taking of the possession cannot be held to be non est in the eyes of the law.

On the contrary, learned counsel appearing on behalf of the respondent/plaintiff has submitted that 30 days before the taking possession of surplus land, notice under Section 10 (5) of the Urban Land (Ceiling and Regulation) Act, 1976 is mandatory. The action of taking possession before the expiry of 30 days after giving notice makes the proceedings of taking possession illegal for the purposes of Section 3 of the Repeal Act.

The question whether breach of Section 10 (5) and possible dispossession 30 days prior to the notice would vitiate the act of dispossession itself or render it non est in the eye of law has been considered by the Apex Court in the case of State of Assam v. Bhaskar Jyoti Sarma and others (2015 ) 5 SCC 321 and held "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, 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 Bhabadeb Sharma Erstwhile 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".

In view of the law laid down in the case of State of State of Assam v. Bhaskar Jyoti Sarma (Supra), it is clear that merely on the ground of non-compliance of Section 10 (5) of the Urban Land (Ceiling and Regulation) Act, 1976, the proceeding with regard to taking of the possession cannot be held to be non est in the eye of the law.

Although, both the Courts below have also considered the fact that the notice Ex.P-6/Ex.D-3 under Section 10 (5) of the Urban Land (Ceiling and Regulation) Act, 1976, regarding taking possession of surplus land was allegedly served on respondent/plaintiff on 08/10/1992. In that notice, it is mentioned that the possession will be taken on 06/11/1992. Whereas possession is said to be taken on 21/10/1992, before the expiry of thirty days after the notice is served and prior to the date mentioned in the notice. This is an anomaly. While dispossession before the expiry of thirty days after the notice is served, under Section 10 (6) 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. But, both the Courts below have not declared the proceeding with regard to taking of the possession of surplus land invalid, on the ground of non-compliance of the provisions Section (5) of Section 10 of the Act. Both the Courts below have declared the proceeding with regard to taking of the possession of surplus land invalid mainly on the ground that it could not be proved that the possession of surplus land had been taken from respondent before the Repeal Act came into force. The infirmity of proper compliance of Section 10 (5) of Urban Land (Ceiling and Regulation) Act, 1976 was considered by the learned trial Court as well as the appellate Court to strengthen the other evidence to prove the plea of the respondent/plaintiff that the actual possession was never taken and the Panchnama dated 21/10/1992 (Ex.P-7/Ex.D-4) is not sufficient to prove that the actual possession of surplus land was taken over by the appellants/defendants from the respondent/plaintiff. So, the findings of both the Courts below regarding non-compliance of provisions of Section 10 (5) of Urban Land (Ceiling and Regulation) Act, 1976 do not affect the merit of this case.

Both the Courts below have considered that the Panchnama dated 21/10/1992 (Ex.P-7/Ex.D-4) does not prove the fact that the actual possession of surplus land was taken over by the appellants/defendants from the respondent/plaintiff. The Punchnama dated 21/10/1992 (Ex.P-7/Ex.D-4) is the only document in evidence on behalf of the appellants/defendants to prove the fact that the possession was taken over by the appellants/defendants on 21/10/1992. In the Panchnama (Ex.P-7/Ex.D-4), it is mentioned that on 21/10/1992 Tehsildar took possession of the land, but the post and name and seal of the officer, who took the possession is not mentioned in the panchnama. In the notice (Ex.D-3) given under Section 10(5) of the Urban Land (Ceiling and Regulation) Act, 1976, regarding taking possession of surplus land was allegedly served on respondent/plaintiff on 08/10/1992. In that notice, it is mentioned that the possession will be taken on 06/11/1992. Whereas possession is said to be taken on 21/10/1992. The possession proceedings were executed in the absence of respondent ex parte. The Panchnama does not reveal the provision or order complying with the possession was taken. No signatures of the owners or the occupiers of the land are there on the Panchnama. The land which has been declared surplus is the part of Survey Nos. 12/2 and 13/2, with a total area of 15.17 Acres. Neither of the Punchnamas reveal the part of the land which was taken into possession. How can the possession be said to be taken without completion of the exercise of demarcation of the relevant part. Also, no compensation has been given which would have happened in natural course as the next step of the procedure under Section 11 of the Urban Land (Ceiling and Regulation) Act, 1976. Appellants did not produce in evidence the persons who took possession to prove the proceedings of taking possession. In these circumstances, both the Courts below have not committed any error discarding the Panchnama (Ex.P-7/Ex.D-4) and arrived at the conclusion that the possession of the suit land was not taken by the appellants/defendants. Where possession of surplus land was never taken over from the respondent and the land was in possession of the respondents/plaintiff, in such circumstances, it can very well be said that the proceedings were pending on the date when the Urban Land (Ceiling and Regulation) Repeal Act, 1999 came into force and in view of the specific provisions as contained in the Urban Land (Ceiling and Regulation) Repeal Act, 1999, the proceedings shall be deemed to be abated and respondent was entitled to retain the land. As held by the Apex court in the case of Vinayak Kashinath Shilkar Vs. Deputy Collector and Competent Authority & others (2012) 4 SCC 718. So, the finding of both the Courts below deserves to be confirmed.

In view of above discussions, this appeal is dismissed being devoid of merit. No order as to costs.