Madhya Pradesh High Court
Nahar Singh vs The State Of Madhya Pradesh on 26 June, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
WRIT PETITION No. 3704 of 2020
NAHAR SINGH AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Prashant Sharma - Advocate for the petitioner.
Shri M.S. Jadon, GA appearing on behalf of Advocate General.
Reserved on : 26.6.2025
Pronounced on : 02/07/2025
This petition having been heard and reserved for orders, Hon'ble Shri
Justice Milind Ramesh Phadke, Judge pronounced the following:
ORDER
By way of instant petition filed under Article 226 of the Constitution,
the petitioner is seeking following reliefs:
(i) That, Proceedings under Urban Land Ceiling Act be
declared as abated.
(ii) Respondents may kindly be restrained from initiating any
proceedings in relation to property in question and they be further
restrained from claiming any right over the property of petitioner
society on the basis of those ceiling proceedings.
(iii) Any other relief which this Hon’ble Court deems fit in the
present facts and circumstances of the case may also be granted in
favour of petitioner.
(2) Facts in nutshell are that the petitioners are owners/co-owners of
Survey No.28/2, 33 and 37 apart from other survey numbers 33/1, 251, 252Signature Not Verified
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total admeasuring 1.588 hectare, 110, 194, 243, 244, 272, 286 admeasuring
4.399 hectare situated at Village Sirole. In the year 1984 the proceedings
under the Urban Land (Ceiling and Regulation) Act, 1976 (hereinshort
referred to as “the Act, 1976”) were initiated and in the aforesaid context
father of the petitioner filed statement under section 6 (2) of the Act, 1976.
Apart from the survey numbers of which the lands were declared to be in
excess, he submitted his claim over half of the land of Survey No.28/2, 110,
194, 243, 244, 272, 286 ad measuring 2.119 hectare. Thus, a statement
alleging himself to be bhumiswami over 3.787 hectares was filed and along
with said statement Khasra Panchshala of Samvat 1981 to 1985 was also
filed. After scrutiny area ad-measuring 16250 Sq. meters was declared to
be in excess in his hands vide order dated 22.12.1989.
(3) Prior to passing of the final order vide proceedings dated
24.7.1989 mentioning that the procedure as contained under section 9 has
been completed on 12.6.1989, the competent authority proceeded to initiate
notification under section 10 (1) of the vacant land held by such person in
excess of the ceiling limits and on 24.7.1989 the notification under section
10 (1) of the Act, 1976 was issued, wherein out of Survey No.28/2, 33, 37,
16250 Sq. Meters of land was held to be in excess. Vide proceedings
dated 25.9.1989 it was directed that since no objection has been received in
pursuance to the notification under section 10 (1) of the Act, 1976 therefore,
the proceedings be initiated for issuance of the notification under section 10
(3) of the Act, 1976, which was published on 25.9.1989.
(4) Vide proceedings dated 6.11.1989 directions were issued for
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taking possession of the land in question by invoking the provisions under
section 10 (5) of the Act, but thereafter from the further proceedings dated
4.12.1989 and 12.7.1990 wherein it is not found that any proceedings under
section 10 (5) of the Act, 1976 were initiated and the petitioners in
pursuance thereto had handed over the possession to the respondents
peacefully except in the proceedings dated 12.7.1990 it has been observed
that on 7.6.1990 possession has been taken of the land and the proceedings
under section 11 of the Act, 1976 for making payment of compensation
has been initiated.
(5) As per the petitioners though, it has been stated in the proceedings
under the Urban Land (Ceiling and Regulation) Act, 1976 that the
possession has been taken, infact no possession was ever taken, no
proceedings pertaining to taking of the possession were ever initiated, thus,
with the advent of Urban Land (Ceiling and Regulation) Repeal Act, 1999
which was made effective since 28.2.2000, the proceedings under the Urban
Land (Ceiling and Regulation) Act having been abated, the question of
taking defacto possession by the State and vesting the land in the State is
false. Though the possession of the lands were with the petitioner as was
evident from the khasra of 2019-20, the lands were recorded as government
land under the Ceiling Proceedings, thus, agitated by the said action the
present petition has been filed.
ARGUMENTS
(6) Learned counsel for the petitioner while referring to section 10
(5) of the Act, 1976 had argued that where any vacant land is vested in the
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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. Thus, when the law itself mandates that
30 days notice is required to be issued to the person in occupation to hand
over the possession, taking of the possession of the land without initiating
any process under section 10 (5) or 10 (6) of the Act, 1976 on the basis of
possession receipt cannot entail that possession was in actuality taken over.
(7) Learned counsel has also submitted that from bare perusal of the
possession receipt Annexure R/6 appended along with the reply it would be
evident that the authority who is stated to have taken possession, who has
mentioned the date 7.6.1990 on the said receipt is not clear. Thus, it appears
that the said receipt has been prepared sitting in the office and no actual
possession has been taken.
(8) Learned counsel has specifically argued that the actual physical
possession was never taken from the petitioners, even no symbolic
possession has taken as there is no documentary evidence to demonstrate
that for taking possession any notice was issued and received by the tenure
holders and the possession receipt filed by the respondent/State appears to
be a paper formality as from the said receipt it would be evident that it does
not contain any signature of the land owners or any independent witnesses
and therein it had only been mentioned that since the petitioner did not
appear at the time of taking over of the possession, ex parte possession was
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taken over which is a cyclostyle format having fill in the blanks, thus, it can
safely be said that the actual physical possession was never taken from the
petitioners and since the petitioners are still tilling or cultivating the crops
on the said land the entries made in the khasra for the year 2019-2020 in
the name of state govenrment is perse illegal. Learned counsel for the
petitioner submits that in view of law laid down by the Hon’ble Supreme
Court in the case of State of U.P. Vs. Hariram reported in (2013) 4 SCC 280 ,
the proceedings initiated against the petitioner under the provisions of Urban
Land (Ceiling and Regulation) Act, 1976 are illegal and should be treated to
be abated in the wake of repeal of the Act of 1976 in the year 1999 with
effect from February, 2000.
(9) Learned Counsel for the petitioner has also relied upon the order
passed in the case of Mithila and others Vs. State of M.P. and others, passed
in W.P.No.5445 of 2010 on 10.1.2025 in support of his contention.
(10) Per contra learned counsel for the State submits that after
issuance of notification under section 10 (3) on 25.9.1989, the possession of
the lands in question were taken on 7.6.1990, which is evident from the
possession receipt appended as Annexure R/6 along with the reply and at
the time of taking possession since the petitioners were not present the
possession was taken ex parte, which is mentioned in the receipt itself,
therefore, correction in the revenue records cannot be said to be bad in law,
and as the petitioners are making claim after a period of more than 30 years
the petition suffers from delay and latches. Further it has been submitted that
in in view of law laid down by the Hon’ble Supreme Court in the case of
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State of Assam Vs. Bhaskar Jyoti Sharma reported in (2015) 5 SCC 321 the
petition is not maintainable as the claim raised by the petitioner is barred by
limitation and the petition, therefore, deserves to be dismissed on the ground
of delay and latches also.
(11) Heard the counsel for the parties and perused the record.
DISCUSSION AND CONCLUSION:
(12) The facts which are admitted and not disputed are that vide order
dated 22.12.1989 land admeasuring 16250 Sq. Meters was held to be in
excess in the hands of father of the petitioners. Thereafter draft statement
was prepared and after calling for objections final statement was prepared
and handed over to the father of the petitioner and proceedings to be taken
under section 10 of the Act, 1976 was directed. On 8.9.1989 publication of
notification under section 10 (1) of the Act, 1976 was done and thereafter
on 25.9.1989 notification under section 10 (3) of the Act, 1976 was issued
and published.
(13) Vide proceedings dated 6.11.1989 it is reflected that since
possession of the lands were not handed over by the petitioners to the State
directions were issued to initiate proceedings under section 10 (5) of the Act,
1976, but, neither from the proceedings nor from the reply or the
documents appended thereto it could be gathered that any notice under
section 10 (5) for handing over of the possession was issued to thepetitioners or their father.
(14) The scope and applicability of the provision of Section 10(5) and
10(6) of the Act and the effect of Repeal Act has been duly considered bySignature Not Verified
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Hon’ble the Apex Court in the case of Hari Ram (Supra) and held as under:
Voluntary Surrender
31. 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
Rejender Kumar v. Kalyan (dead) by Lrs. (2000) 8 SCC 99 held as
follows:
“28. ….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 “vest”, cannot be termed to be an executor devise. Be it
noted however, that “vested” does not necessarily and always
mean “vest in possession” but includes “vest in interest” as well.”
32. We are of the view that so far as the present case is concerned,
the word “vesting” takes in every interest in the property including
de jure possession and, not de facto but it is always open to a
person to voluntarily surrender and deliver possession, under
Section 10(3) of the Act.
33. 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
subsection (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
34. Sub-section (5) of Section 10, for the first time, speaks of
“possession” which says 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 authorized by the State
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Government.
35. If de facto possession has already passed on to the State
Government by the two deeming provisions under subsection (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 subsection (3) to
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 subsection (5) to Section 10 to surrender or deliver
possession. Subsection (5) of Section 10 visualizes a situation of
surrendering and delivering possession, peacefully while
subsection (6) of Section 10 contemplates a situation of forceful
dispossession.
Forceful dispossession
36. 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) to 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, force- as may be
necessary – 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 only in a
situation which falls under sub-section (6) and not under
subsection (5) to 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), than “forceful
dispossession” under sub-section (6) of Section 10.
37. Requirement of giving notice under subsections (5) and (6) of
Section 10 is mandatory. Though the word ‘may’ has been used
therein, the word ‘may’ in both the subsections 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 10 is that it might result the land holder
being dispossessed without notice, therefore, the word ‘may’ has to
be read as ‘shall’.
Effect of the Repeal Act
41. Let us now examine the effect of Section 3 of the Repeal Act
15 of 1999 on sub-section (3) to Section 10 of the Act. The Repeal
Act 1999 has expressly repealed the Act 33 of 1976. The Object
and Reasons of the Repeal Act has already been referred to in the
earlier part of this Judgment. Repeal Act has, however, retained a
saving clause. The question whether a right has been acquired or
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liability incurred under a statute before it is repealed will in each
case depend on the construction of the statute and the facts of the
particular case.
42. 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 18.3.1999. State has to
establish that there has been a voluntary surrender of vacant land
or surrender and delivery of peaceful possession under sub-
section (5) of Section 10 or forceful dispossession under sub-
section (6) of Section 10. On failure to establish any of those
situations, the land owner or holder can claim the benefit of
Section 3 of the Repeal Act. The State Government in this appeal
could not establish any of those situations and hence the High
Court is right in holding that the respondent is entitled to get the
benefit of Section 4 of the Repeal Act.
We, therefore, find no infirmity in the judgment of the High Court
and the appeal is, accordingly, dismissed so also the other appeals.
No documents have been produced by the State to show that the
respondents had been dispossessed before coming into force of the
Repeal Act and hence, the respondents are entitled to get the
benefit of Section 3 of the Repeal Act. However, there will be no
order as to costs.”
The judgment of Hari Ram (supra) has further been relied upon by
a Three Judge Bench of the Apex Court in the case of D.R.
Somayajulu, Secretary, Diesel Loco Shed and South Eastern
Railway House Building Cooperative Society Limited
Visakhapatnam and others vs. Attili Appala Swamy and others-
(2015) 2 SCC 390 and after considering the effect of the
provisions of Repeal Act, restating the principle of the judgment
of Hari Ram (supra) the Apex Court remitted the matter to the
High Court for determination of the issue of actual physical
possession on the date of commencement of the Repeal Act.” and
finally observed the impact of non compliance of mandatory
provision of Sections 10(5) and 10(6) of the Principal Act, which
reads as under:-
“15. In the present case the notice under Section 10(5) of the Act
was issued in the name of the holder of land, who was already
died on the date of its issue and the notice was not issued in the
name of persons who were in possession of the land on drawing
the proceedings under Sections 10(5) of the Act. As discussed
presuming service of the said notice on the dead person, if
possession has taken in front of witnesses exparte, without
drawing the proceedings of Section 10(6) of the Act, the said
procedure is not known under the Principal Act, and as interpreted
by the judgment of Apex Court in Hari Ram (supra). Thus, in my
considered opinion, it is to be held that the actual physical
possession of the land bearing Khasra No.87 and 228/3 area
8536.32 square meters of village Purwa, Settlement No. 162,
Patwari Halka No. 28, Tehsil and District Jabalpur has not been
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authority or by Naib Tehsildar (Nazul), on the date of
commencement of the Repeal Act, therefore, these proceedings
shall abate. Accordingly the questions as posed for discussion are
answered in favour of the petitioners against respondents.”
12. It is also pertinent to mention here that against the decision of
this Court, the Supreme Court has dismissed the SLP
No.18278/2017 vide order dated 28.07.2017 in the case of Gayatri
Devi (supra). Accordingly, it is clear that the mandatory
requirement of the provision of Sections 10(5) and 10(6) of the
Principal Act have not been followed in the present case,
therefore, the proceeding initiated by the revenue authorities
showing the possession of the land taken in the ceiling proceeding
and the land vested in the State, cannot be said to be proper and
the said proceeding cannot be held to be legal and in accordance
with law.
13. This Court in Writ Petition No.18017/2010 parties being Smt.
Meera Bai and others Vs. The State of Madhya Pradesh and
others, taking note of the law laid down by the Division Bench of
this Court in the case of Ram Kumar Pathak and others Vs. State
of M.P. and others (Writ Appeal No.734/2008), has also
considered the scope of Section 10(5) of the Principal Act, which
reads as under:-
“7. Section 10(5) of the Act provides as under:-
“10. Acquisition of vacant land in excess of ceiling limit:-
……..
(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.
Aforesaid provision specifically provides that a notice of
minimum 30 days was required to be served on the holder, but as
is apparent from the perusal of order-sheet that on 29.2.1992, the
notice was issued and the date of delivery of possession was fixed
as 3.3.1992. It appears that only 4 days notice was issued to the
holder and the order-sheet was written for taking over the
possession. It is also apparent that notice under Section 10(5) of
the Act was not served upon the holder. When the notice was
served by affixture also does not find place in the notice. Even the
person who had affixed the notice did not care to call two
independent witnesses to witness affixure of notice at the house of
the holder. The notice is also silent that on which date and at what
time, the affixure was made. The possession was not taken from
the holder. Though the Kotwar had signed the document but why
two independent witnesses were not called. Though two names are
appearing in the notice but without any particulars. Why the
holder was not called for handing over the 20 Writ Petition
No.3269/2019 possession?, nothing is available on record. Apart
from this, no proper Panchnama was drawn for taking possession
of the land. These facts show that in fact possession of the land
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was not taken on 3.3.1992 as stated in the reply by the
respondents. When possession of the land was not taken after
issuance of due notice under Section 10(5) of the Act, in
accordance with law, the proceedings shall be deemed to be
pending as on the date when the Urban Land (Ceiling and
Regulation) Repeal Act, 1999 came into force. When the
proceedings were pending as on 22.3.1999, then in view of the
Repeal Act of 1999, the proceedings shall be deemed to be abated.
8. Now the question remains whether on coming into force of
Repeal Act, 1999 whether the proceedings were pending? In this
case, no notice under Section 10(5) of the Act was served upon the
appellants while it was the mandatory requirement of the law to
serve this notice. Even for the sake of arguments, if it is assumed
that the notice dated 29.2.1992 was issued to the appellants, even
then 30 days’ notice was the mandatory requirement of the law and
until and unless a notice of 30 days could have been issued, the
provision shall be deemed to be not complied with. Factually,
neither notice under Section 10(5) was served upon the appellants
nor any notice before handing over possession was given to the
appellants. Neither the notice under Section 10(5) of the Act nor
the warrant of possession bears the signature of the appellants.
Apart from this, the possession which was stated to be taken on
3.3.1992 was not in the presence of witnesses. Even if it is
assumed that the two names which are appearing in the notice
were witnesses, but no particulars of the witnesses are on record.
No specific Panchnama was prepared on the spot that in the
presence of these witnesses, the possession was taken. When, at
what time and in whose presence, the possession was taken, letter
of possession is silent. In view of non-compliance of mandatory
provision as contained under Section 10(5) of the Act or the
suspicious circumstances in taking possession, it is apparent that
the factual possession on the spot was not taken. Apart from this,
the appellants/petitioners from the very inception were claiming
their possession on the land and had come forward with the plea
that the appellants were dispossessed after interim order in this
appeal. The fact which has been established is that no factual
possession was taken from the appellants and they continued to be
in possession till filing of the appeal which was filed on 24.6.2002
after coming into force of Repeal Act, 1999. In aforesaid
circumstances, the appellants were in possession of the land, as on
the date, on which the Repeal Act, 1999 came into force. In such
circumstances, it can very well be said that the proceedings were
pending on the date when the Repeal Act came into force. If the
appellants remained in possession of the land and their possession
was not disturbed, then they were entitled to retain the land and
the proceedings shall be deemed to have been abated [See:
Vinayak Kashinath Shilkar Vs. Deputy Collector and Competent
Authority & others (2012) 4 SCC 718].”
[Emphasis Supplied]
(15) In the present case, the documents annexed by the State in the
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reply and from the proceedings of the competent authority in no manner it is
established that possession was peacefully and voluntarily given by the land
owners under section 10 (5) of the Act, 1976, as the possession receipt does
not appear signature of any of the land owner or does not record that the
possession was voluntarily given to the State Authorities rather it is
mentioned therein that since the land owners did not appear, therefore,
possession was taken ex parte. Even the name of father of the present
petitioner or petitioners is not mentioned in the possession receipt rather it is
mentioned land holders. Thus, at the most it can be said that the possession,
which was alleged to have been taken on 7.6.1990 was taken from the
occupants, but in actuality the original tenure holders were the occupants is
not clear and when petitioners or their father had never voluntary
surrendered the possession of the land, in absence of any voluntary
surrender of possession, the authorities were required to proceed with
forcible dis-possession but that was never done. As has been held in the
case of Mithila (supra) that the document of possession would not be an
evidence of actual taking of possession unless it witnessed by independent
person acknowledging it, the possession taken on the basis of possession
receipt dated 7.6.1990 cannot be said to be a proper possession. So also
from the very proceedings initiated by the competent authority there is no
mention of the fact that notice under section 10 (5) or section 10 (6) of the
Act, 1976 were ever issued or served upon the present petitioners or their
father and when they did not voluntarily surrendered the possession, actual
possession were taken, which goes to show that the possession receipt was
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actually a paper formality and on its basis it cannot be held that actual
possession was ever taken from the petitioners or their fathers.
(16). So far as the judgment rendered by the Hon’ble Apex Court in the
case of State of Assam Vs. Bhaskar Jyoti Sarma and others (supra) is
concerned, the same shall apply in a case where actual physical possession of
the land is taken from the land owner and after much delay, said possession
is challenged. The Hon’ble Supreme Court while dealing with a case
involving the fact in which actual physical possession was taken over from
the erstwhile land owner on 07.12.1991 and the grievance raised after a
decade it was held that grievance with regard to non-adherence of Section
10(5) of the Act, 1976 should have been raised within the reasonable time of
such dispossession. The Hon’ble Supreme Court in the aforesaid fact has
further observed that if the owner did not do so, forcibly taking over of the
possession would acquire legitimacy by sheer lapse of time and dealing with
Section 3(1)(a) of the Act, 1976, the Repeal Act, 1999 has held that the
petition under Article 226 would not be maintainable for seeking declaration
of proceeding initiated under the provisions of Act, 1976 abated. It is clear
from the view of the Hon’ble Supreme Court that the Apex Court was very
specific and has applied the point of delay and latches in a case where actual
physical possession has been taken over, but herein case taking over of actual
physical possession, itself is doubtful, as discussed above.
(17) Thus, this Court while allowing the present petition holds as
under:
(i) The possession taken by the State Government cannot
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NEUTRAL CITATION NO. 2025:MPHC-GWL:13140
14 WP-3704-2020
be termed as a valid possession in accordance with law provided
under the Urban Land (Ceiling and Regulation) Act, 1976 so far as
the land bearing Survey No.28/2, 33 and 37 ad measuring 16250
Sq. Ft. is concerned.
(ii) It is held that the Repeal Act will apply with full force
herein case as possession has not been taken.
(iii) It is held that the judgment of the Supreme Court in
the case of State of Assam Vs. Bhaskar Jyoti Sarma (supra) has no
applicability in the present case.
(18). Consequently, the writ petition is allowed with the direction to
the State Government to correct the revenue records accordingly. No order
as to costs.
(MILIND RAMESH PHADKE)
JUDGE
(aspr)
Signature Not Verified
Signed by: ASHISH PAWAR
Signing time: 03-07-2025
17:19:04