Vichitra Singh Tomar (Dead) vs State of Madhya Pradesh and Others

Sujoy Paul, J.—This matter is analogously heard with Writ Petition No. 424/2003 and Writ Petition No. 487/2003. Learned counsel submits that the legal questions involved in these matters are identical and, therefore, these matters may be heard analogously and decided by common order. I do so accordingly. The facts are taken from Writ Petition No. 294/2003.

The land in question was originally owned by one Machal Singh whose name was mentioned as "Bhumiswami" in the revenue records. The revenue records Annexure P/4, dated 3/3/1964 make it clear that Machal Singh is the originally Bhumiswami. On 22/03/1966, lay-out plan of the land in question was sanctioned by Chief Town Planner. On 9/1/1968, the land was sold to Brij Biharilal as per sanctioned lay-out plan and possession was handed over. The name of Brij Biharilal was mutated in revenue record vide Annexure P/7. Subsequently on 12/01/1968, Brij Biharilal sold Plot Nos. 4 and 5 out of the aforesaid land to one Harshwardhan Shankar Dravid and handed over possession to him vide Annexure P/6. On 9/9/1976, the date on which Urban Land (Ceiling and Regulation) Act, 1976 came into force in the State of Madhya Pradesh, said Shri Dravid was the owner and holder of the land in question. On 19/02/1981, the petitioner obtained non- encumbrances certificate from Tahsildar for the said land before purchase. This fact is admitted by the respondents in their return. On 28/04/1981, Harshwardhan Shankar Dravid sold the plots to the petitioner and handed over its possession vide Annexure P/18. The petitioner, then obtained building construction permission from competent authority and constructed a house on the said land. The petitioner paid the property tax in accordance with law before the competent authority. It appears that the respondent issued notice to Machal Singh under the provisions of 1976 Act and obtained his reply. On 28/04/19990, the Upper Collector passed draft statement declaring the land in Survey Nos. 310/1 and 310/2 to be of Machal Singh. On 19/06/1990 a final statement under the said Act was passed by invoking Section 9 of the said Act. On 17/07/1990, a notification u/s 10(1) of 1976 Act [ Annexure P/22] was issued. Another notification u/s 10(2) of 1976 Act (Annexure P/21) was issued on 3/7/1992. The petitioner gave his house on rent to Urja Vikas Nigam which in turn vacated the said accommodation on 20/10/1995 (Annexure P/14). The petitioner then constructed second storey in the said house on 20/09/1996. It is the case of the petitioner that he is in continuous possession of the house and it was not taken over by the respondents at any point of time. Specific pleadings are made in this regard in the body of writ petition. Later on, when the petitioner came to know that the impugned order is passed, he preferred present writ petition i.e. Writ Petition No. 294/2003 and assailed the same.

This Court while issuing notices on 28/01/2003 restrained the respondents from taking any coercive action against the petitioner in pursuance to the order Annexure P-1 and Annexure P-2.

Shri Harish Dixit, learned counsel has advanced two-fold submissions as under:-

(I) When Act 1976 came into being and enforced in State of Madhya Pradesh, Shri Harshwardhan Shankar Dravid was the owner and was in possession of the said land. Accordingly, the respondents could have initiated action only against Shri Dravid and there was no occasion to proceed or notice the original Bhumiswami i.e. Machal Singh. He submits that after Machal Singh the property changed various hands and therefore, the actual owner on the date of commencement of Act should have been noticed and could have been heard. In absence thereof, Shri Dixit submits that entire action is bad in law.

(II) That the petitioner is in possession continuously and in view of various provisions of Urban Land (Ceiling and Regulation) Repeal Act, 1999 [hereinafter called as "Repeal Act"] the proceedings and orders stood abated because admittedly no possession was taken over from the petitioner and he is still in possession.

To buttress the aforesaid submissions, he cited certain judgments of this Court and of the Supreme Court.

Shri Newaskar, learned Deputy Government Advocate opposed the relief and submits that the petitioner should have challenged the basic notifications Annexure P/22 and Annexure P/23. In absence thereof, no relief can be granted to the petitioner. Although, there is an assertion in para 10 of the reply wherein it is stated that possession of the land declared as surplus is taken over by the State, but he fairly submits that original record with him does not indicate that actual possession was taken over by the State authorities. Even otherwise, it is fairly averred by learned Deputy Government Advocate that there is no material with him to show that the possession of the land in question was taken over by the State or its authorities.

I have heard learned counsel for the parties and perused the record.

It is apt for this Court to mention the relevant provision of sub-section (1) of Section 10 and sub-section (5) of Section 10 of 1976 Act reads as under:-

Acquisition of vacant land in excess of ceiling limit.-(1) As soon as may be after the service of the statement under Sec. 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 that-

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

(ii) the claim 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 informed of the general public in the Official Gazette of the State concerned and in such other manner as may be prescribed.

(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 authorized by the State Government in this behalf within thirty days of the service of the notice.

A minute reading of this provision makes it crystal clear that action was required to be taken against the "person concerned" and "such person" is mentioned in sub-section(1) of Section 10 of the aforesaid Act. In the considered opinion of this Court, on the date 1976 Act was enforced in the State of Madhya Pradesh, "concerned person" or "such person" was Mr. Dravid and, therefore, there was no occasion for the respondents to proceed against Machal Singh. The entire proceeding against Machal Singh or his reply is of no consequence and it is an act in futility. This does not fulfill the basic requirement of acquisition as mandated in Section 10 of the said Act. Thus, the very foundation on which the entire edifice of the impugned orders and notifications are rested, is without any basis and substance.

Coming to the second point, in my considered opinion, the argument of Shri Harish Dixit has substantial force. This Court had an occasion to consider this aspect in Ramprasad Vs. State of M.P., and then in Sohan Singh and Others Vs. State of Madhya Pradesh and Others, . However, since the legal position is considered and settled in extenso by Supreme Court in recent judgment in Vinayak Kashinath Shilkar Vs. Dy. Collector and Competent Authority and Others, I deem it proper to examine the questions involved on the anvil of the law laid down by the Apex Court in Vinayak Kashinath Shilkar (supra). In the said case, the stand of the State Government before High Court of Maharashtra was that the possession was already taken over. An assertion in this regard was made in the reply-affidavit by the State Government before the High Court. On the strength on that averment of reply- affidavit the High Court dismissed the petition of Vinayak Kashinath Shilkar. It travelled to the Supreme Court and the Apex Court recorded the stand of the petitioner in para 5 as under:-

Mr. Uday B. Dubey, learned counsel for the respondents submitted and, in our view fairly that there was nothing on record to indicate that actual possession of the subject land had been taken over by the respondents from the appellant. He further submitted that the observation of the High Court that the possession of the subject land had already been taken by the Government of Maharashtra was based on the assertion made in the reply-affidavit filed on behalf of Respondent 1 that the land had vested in the State Government on action having been taken under Sections 10(3) and 10(5) of the Act and for no other reason.

A bare perusal of this judgment will show that mere assertion that possession was taken over is not sufficient, more so, when in the present case the respondents have fairly admitted that there is no documentary evidence to show that possession was actually taken over by the respondents. On the other side, the petitioner has filed various documents to show that his possession continued after purchase from Mr. Dravid. Thus, I am unable to hold that the possession was actually taken over from the petitioner by the respondents at any point of time. Pivotal question thus remains as to what is the effect of non taking over the possession from the petitioner. This aspect is taken care of by the Repeal Act, 1999. Relevant provisions of Sections 2, 3 and 4 of the Repeal Act, 1999 read as under:-

The Urban Land (Ceiling and Regulation) Act, 1976 [ hereinafter refer to as the principal Act) is hereby repealed.

(1) The repeal of the principal Act shall not affect:-

(a) the vesting of any vacant land under sub-section (3) of section 10, possession of which has been taken over by the State Government or any person duly authorized by the State Government in this behalf or the competent authority;

(b) the validity of any order granting exemption under sub-section (1) of section 20 or any action taken there under, not withstanding any judgment of any court to the contrary;

(c) any payment made to the State Government as a condition for granting exemption under sub-section (1) of section 20.

(2) Where-

(a) any land is deemed to have vested in the State Government under subsection (3) of Section 10 of the principal Act but possession of which has not been taken over by the State Government or any person duly authorized by the State Government in this behalf or by the competent authority; and

(b) any amount has been paid by the State Government with respect to such land, then, such land shall not be restored unless the amount paid, if any, has been refunded to the State Government.

(4). All proceedings relating to any order made or purported to be made under the principal Act pending immediately before the commencement of this Act, before any court, tribunal or other authority shall abate:

Provided that this section shall not apply to the proceedings relating to sections 11, 12, 13 and 14 of the principal Act in so far as such proceedings are relatable to the land, possession of which has been taken over by the State Government or any person duly authorized by the State Government in this behalf or by the competent authority.

A conjoint reading of Sections 2, 3(2) and 4 of Repeal Act, 1999 shows the intention of the legislature not to operate 1976 Act upon those lands whose possession was not taken over by the State Government. If possession is not taken over it is held that proceeding as against those lands stood automatically abated. Apex Court in Vinayak Kashinath Shilkar (supra) considered this aspect by taking into stock the earlier judgments including the judgment in the case of Ritesh Tewari and Another Vs. State of U.P. and Others, . Para 11 of the judgment of Vinayak Kashinath Shilkar (supra) reads as under:-

In view of the legal position enunciated by this Court in Ritesh Tewari and the factual situation that the possession of the subject land has not been taken by the Government of Maharashtra, we are satisfied that the appellant was entitled to the relief in terms of Para 9(b) in the writ petition and the High Court ought to have declared that the proceedings under the Act in relation to the subject property stood abated. Now it is declared accordingly.

In the light of the aforesaid legal principle settled by Supreme Court, I have no hesitation to hold that once it is established that possession of the petitioner was not taken over by the respondents at any point of time and no proceedings were initiated u/s 10 of 1976 Act against Mr. Dravid or against the petitioner at any point of time, the respondents have no authority to proceed against the petitioner. The proceedings, by way of Repeal Act stood abated because the possession was not taken over from the petitioner by the respondents. Notifications Annexure P/22 and Annexure P/23 will are not binding on the present petitioners in view of the Repeal Act. Even otherwise the notifications aforesaid have lost their complete shine and cannot be operated against the petitioner. Resultantly, all the aforesaid writ petitions are allowed and the impugned orders in those writ petitions are set aside. No costs.