Madhya Pradesh High Court
Dhanpal vs State Of M.P. on 10 January, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
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IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
WRIT PETITION No. 2254 of 2006
DHANPAL
Versus
STATE OF M.P. AND OTHERS
Appearance:
Shri Y.P.S. Rathore - Advocate for petitioner.
Shri M.S. Jadon - Government Advocate for
respondents/State.
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Reserved on 11.12.2024
Delivered on 10.01.2025
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ORDER
This petition under Article 226 of the Constitution India has
been filed by the petitioner being aggrieved by the action of the
respondents by which they are trying to take possession of the land
(part of survey No.63) claiming that the petitioner’s land has been
declared surplus under the provisions of Urban Land Ceiling and
Regulation Act, 1976.
2. In brief, the facts of the case are that petitioner is the
Bhoomiswami of agricultural land bearing survey No.63 (area 2.749
hectare) situated at Village Chirwai Tehsil and District Gwalior.
Earlier the land was recorded in the name of Babu (father of
petitioner). After the death of father of petitioner, the land was
inherited by five sons and wife of Babu jointly and their names were
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mutated jointly in the revenue records. Thereafter partition took
place between all the joint owners and as per partition land
admeasuring 6 Bigha and 11 Biswa was received by Sarmania,
Rajkumar and Ram Singh, land admeasuring 2 Bigha 4 Biswa was
received by Ramlal and land admeasuing 4 Bigha and 8 Biswa was
received by Mulara and petitioner (Dhanpal). It is not disputed that
after the death of Babu all the sons and wife of late Babu received
their shares and petitioner alongwith his brother Mularam were
doing cultivation on their respective portions and were in possession
jointly on part of Survey No.63.
3. The proceedings under the Ceiling Act were initiated
against the petitioner and the land admeasuring 3081.5 sq. meter was
declared as surplus but thereafter nothing had been done in the
matter for taking possession of the land so declared surplus. Just
before filing of the petition, some persons alongwith revenue
authorities approached at the spot and disclosed that the land had
been allotted to them by the respondent No.3 and tried to dispossess
the petitioners, thus constrained, a representation was submitted by
the petitioner before the respondents, but to no avail. Hence, the
present petition came to be filed.
4. As per the petitioner, the land in question earlier belonged
to his father Babu, whose name was recorded as Bhoomiswami over
Khasra No.63 in the Samwat 2026 to 2039 much before the
enforcement of Urban Land (Ceiling & Regulation) Repeal Act,
1999, thus, there was no reason or justification at all for initiating
the proceedings under the Urban Land Ceiling Act against the
petitioner.
5. The petitioner has in fact claimed that in the year 1999, the
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Act of 1976 has been repealed by Urban Land (Ceiling &
Regulation) Repeal Act, 1999, which provided that if any
proceedings relating to any order made or purported to be made
under the Principal Act i.e Act of 1976 is pending immediately
before commencement of Act of 1999 before any court, tribunal or
other authority, said proceedings shall abate. It also provides that if
possession of the land, which is said to have been vested in the State
under the provision of Act of 1976, has not been taken over then that
proceeding of vesting of land under the provision of Act of 1976
shall also be treated to be abated.
6. As per the petitioner, survey No. 63 was sub divided
between the members of the family after the death of Babu by the
Competent Authority, no proceedings under the Urban Land Ceiling
and Regulation Act, 1976, were initiated against other Bhoomiswami
of survey No.63 which was sub divided between the Bhoomiswami
prior to notice under Section 10(5) of Urban Land Ceiling and
Regulation Act, 1976 and as such, the notice itself is bad in law.
7. The possession receipt Annexure R/9 filed by the
respondent was prepared without following the procedure and ex-
parte possession was taken. No signatures of any persons who were
actually Bhoomiswamis of survey No.63, which was already sub
divided by the Competent Authority were taken, which goes to show
that the entire proceedings were falsely prepared. Hence, it is prayed
that directions be issued to the respondents to quash all proceedings
initiated under the provisions of Urban Land Ceiling and Regulation
Act, 1976.
8. Learned Government Advocate for respondent/State on the
other hand submits that the possession of disputed land admeasuring
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3081.5 sq. meter from survey No.63 situated at Village Chiwai
District Gwalior was taken over on 5.9.1990 by the Government in
the proceedings under Urban Land Ceiling and Regulation Act,
1976. On 9.9.1987 petitioner had filed his statement u/S. 6(2)
of Urban Land Ceiling and Regulation Act, 1976 and after
considering the statement submitted by the petitioner, report of Town
and Country Planning and Revenue Inspector, the Competent
Authority issued a draft statement on 31.12.1987 which was served
on the petitioner and a notice u/S. 8(3) was served on him stating
that if the petitioner has any objection to the draft statement, the
same may be filed within thirty days, but since the petitioner did not
file any objection, then final statement was prepared on 19.09.1989
which was served on the petitioner. Thereafter, the land measuring
3081.5 sq. meter which is 1/6 part of the total land survey No.63 was
declared surplus. Thereafter, notification u/S.10(1) of the Act was
published in the gazette notification on 3.10.1989.
9. It was further submitted that after publication of notification
u/S.10(1), no objections were submitted from the petitioner.
Thereafter, notification u/S.10(3) was published on 29.11.1989.
Thereupon, notice u/S. 10(5) of the Urban Land Ceiling and
Regulation Act, 1976 was issued to the petitioner with the intention
that the petitioner would surrender or deliver the possession of the
land mentioned in the notification within 30 days of service of
notice, which was served on the petitioner on 10.01.1990. Since the
petitioner failed to comply with the directions issued vide notice
u/S.10(5), competent Authority took possession of the vacant land
ex-parte on 05.09.1990. Thus, in such circumstances, the
proceedings under Urban Land Ceiling and Regulation Act, 1976
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were duly initiated and the petitioner had duly represented his case
before the Authorities. Since the possession of subject land having
been taken over prior to coming into force of Repeal Act, therefore,
proceedings cannot be said to be abated under the Repealed Act.
Hence, it is prayed that the present petition be dismissed. To bolster
his submissions, learned counsel for the State has relied upon the
judgment rendered by the Division Bench of this Court in the case of
Ramnarayan and Ors. Vs. State of M.P. (W.A. 81/2006) passed
on 14.02.2022.
10. Heard counsel for the parties and perused the record.
11. The Supreme Court in case of (State of U.P. Vs. Hariram)
reported in (2013) 4 SCC 280 has already laid down a law that
before taking possession notice under Section 10(5) and under
Section 10(6) of Act 1976 is a mandatory requirement and if that is
not followed and possession has shown to have been taken the said
procedure is defective and illegal and taking possession cannot be
said to be proper. The Supreme Court in 31, 34, 35, 36 , 37 to 43 has
observed 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 U.P.
[(1977) 1 SCC 155] , while interpreting Section 117(1) of the U.P.
Zamindari Abolition and Land Reforms Act, 1950 held that
“vesting” is a word of slippery import and has many meanings
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 [(2000) 8 SCC 99] held as
follows: (SCC p. 114, para 28)
“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 [(1878) 4 QBD 104 (CA)] : Stroud’s
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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
authorisation cannot however but be termed to be a contingent
event. To ‘vest’, cannot be termed to be an executory 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 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.
34. 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.
35. 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-
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section (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) 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, 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 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
dispossession” under sub-section (6) of Section 10.
37. 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
“may” has to be read as “shall”.
38. The above reasoning is in consistence with the 1983
Directions which have been issued by the State Government in
exercise of the powers conferred under Section 35 of the Act. The
Directions clearly indicate the procedure for taking possession of
the vacant land in excess of the prescribed ceiling limit, which
reads as under:
The Uttar Pradesh Urban Land Ceiling (Taking of
Possession, Payment of Amount and Allied Matters) Directions,
1983 (Directions issued by the State Government under Section 35
of the 1976 Act):
“In exercise of the powers under Section 35 of the Urban Land
(Ceiling and Regulation) Act, 1976 (33 of 1976), the Governor is
pleased to issue the following directions relating to the powers and
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8in Section 11 of the aforesaid Act to the person or persons entitled
thereto:
1.Short title, application and commencement.–These
Directions may be called the Uttar Pradesh Urban Land Ceiling
(Taking of Possession, Payment of Amount and Allied Matters)
Directions, 1983.
(2) The provisions contained in this direction shall be
subjected to the provisions of any directions or rules or orders
issued by the Central Government with such directions or rules or
orders.
(3) They shall come into force with effect from the date of
publication in the gazette.
2.Definitions.–***
3.Procedure for taking possession of vacant land in excess
of ceiling limit.–(1) The competent authority will maintain a
register in Form No. ULC-I for each case regarding which
notification under sub-section (3) of Section 10 of the Act is
published in the gazette.
4. (1)***
(2) An order in Form No. ULC-II will be sent to each
landholder as prescribed under sub-section (5) of Section 109 of
the Act and the date of issue and service of the order will be
entered in Column 8 of Form No. ULC-I.
(3) On possession of the excess vacant land being taken in
accordance with the provisions of sub-section (5) or sub-section
(6) of Section 10 of the Act, entries will be made in a register in
Form No. ULC-III and also in Column 9 of Form No. ULC-I. The
competent authority shall in token of verification of the entries, put
his signatures in Column 11 of Form No. ULC-I and Column 10 of
Form No. ULC-III.
Form No. ULC-I
Register of notice under Sections 10(3) and 10(5)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
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(8)
(9)
(10)
(11)
Sl. No.
Sl. No. of register of receipt Sl. No. of register of taking possession
Case number
Date of Notification under Section 10(3)
Land to be acquired Village Mohali
Date of taking over posse-ssion
Remarks
Signature of competent authority
Form No. ULC-II
Notice order under Section 10(5)
[See clause (2) of Direction (3)]
In the court of competent authority
ULC ………………
No. ………………..
Date ………………
Sri/Smt …………………………….. T/o ………………………
In exercise of the powers vested under Section 10(5) of the
Urban Land (Ceiling and Regulation) Act, 1976 (33 of 1976), you
are hereby informed that vide Notification No. ………. dated …..
under Section 10(1) published in Uttar Pradesh Gazette dated
…… following land has vested absolutely in the State free from all
encumbrances as a consequence Notification under Section 10(3)
published in Uttar Pradesh Gazette dated ……. Notification No.
……… dated ….. With effect from ………. you are hereby ordered
to surrender or deliver the possession of the land to the Collector
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of the District authorised in this behalf under Notification No.
324/II-27-U.C.77 dated 9-2-1977, published in the gazette, dated
12-3-1977, within thirty days from the date of receipt of this order
otherwise action under sub-section (6) of Section 10 of the Act will
follow.
Description of vacant land
Location
Khasra No. identification
Area
Remarks
(1)
(2)
(3)
(4)
Competent Authority
………………………….
………………………….
No. …………………
Dated…………………….
Copy forwarded to the Collector ………… with the request that
action for immediate taking over of the possession of the above
detailed surplus land and its proper maintenance may, kindly be
taken and an intimation be given to the undersigned along with the
copy of the certificate to verify.
Competent Authority
……………………….
……………………..”
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39. The abovementioned directives make it clear that sub-
section (3) takes in only de jure possession and not de facto
possession, therefore, if the landowner is not surrendering
possession voluntarily under sub-section (3) of Section 10, or
surrendering or delivering possession after notice, under Section
10(5) or dispossession by use of force, it cannot be said that the
State Government has taken possession of the vacant land.
40. The scope of Act 33 of 1976 came up for consideration
before this Court on a few occasions, reference may be made to
certain judgments, even though there has been no elaborate
discussion of the provision of the Act and its impact on the Repeal
Act. Reference may be made to Pt. Madan Swaroop Shrotiya
Public Charitable Trust v. State of U.P. [(2000) 6 SCC 325] ,
Ghasitey Lal Sahu v. Competent Authority [(2004) 13 SCC 452] ,
Mukarram Ali Khan v. State of U.P. [(2007) 11 SCC 90] and
Vinayak Kashinath Shilkar v. Collector and Competent Authority
[(2012) 4 SCC 718 : (2012) 2 SCC (Civ) 652] .
Effect of the Repeal Act
41. Let us now examine the effect of Section 3 of Repeal Act
15 of 1999 on sub-section (3) of Section 10 of the Act. The Repeal
Act, 1999 has expressly repealed Act 33 of 1976. The objects and
reasons of the Repeal Act have already been referred to in the
earlier part of this judgment. The Repeal Act has, however,
retained a saving clause. The question whether a right has been
acquired or 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. The 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 landowner or holder can claim the benefit of
Section 4 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.
43. 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
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to get the benefit of Section 4 of the Repeal Act. However, there
will be no order as to costs.
12. In a recent decision in the case of State of Assam Vs.Bhaskar
Jyoti Sarma, reported in (2015) 5 SCC 321. It has been observed in
paragraph 11 as under :
“11. Section 3 of the Repeal Act postulates that
vesting any vacant land under Sub-section (3) of Section 10,
is subject to the condition that possession thereof has been
taken over by the competent authority or by the State
government or any person duly authorised by the State
government. The expression “possession” used in Section 3
(supra) has been interpreted to mean “actual physical
possession” of the surplus land and not just possession that
goes with the vesting of excess land in terms of Section 10(3)
of the Act…………”
13. From a perusal of the record, it appears that notice under
Section 10(5) of the Act was served on the petitioner on 10.01.1990 and
in pursuant to the notice, the possession was taken on 05.09.1990 after
expiry of about eight months, but prior to that on 15.03.1990, the
Tehsildar had carried out batankan of the said land in which land bearing
survey No.69/2 Rakwa 4153 consisting 3081.5 sq. meter surplus land fell
into the share of petitioner. The petitioner has also filed copy of Khasra of
the year 2005-06 (Annexure P/6), indicating that the petitioner was in
possession of the land. No proof of voluntary surrender by the tenure
holder is on the record. On the other hand, the possession memo
(Annexure R/9) indicates that the signature of petitioner has not been
placed on the possession memo.
14. The normal mode of taking possession is drafting a punchnama in
the presence of panchas and taking possession and giving delivery to the
beneficiaries. Subsequent thereto, the retention of possession would
tantamount to be illegal or unlawful possession. This view was held in
Balmokand Khatri Educational and Industrial Trust Vs. State of
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Punjab (AIR 1996 SC 1239), wherein the Supreme Court held:
4. It is seen that the entire gamut of the acquisition
proceedings stood completed by 17-4-1976 by which date
possession of the land had been taken. No doubt, Shri Parekh has
contended that the appellant still retained their possession. It is
now well settled legal position that it is difficult to take physical
possession of the land under compulsory acquisition. The normal
mode of taking possession is drafting the panchnama in the
presence of panchas and taking possession and giving delivery to
the beneficiaries is the accepted mode of taking possession of the
land. Subsequent thereto, the retention of possession would
tantamount only to illegal or unlawful possession.”
15. In Sita Ram Bhandar Society Vs. Govt. of NCT of Delhi
(2009) 10 SCC 501 and Omprakash Verma Vs. State of A.P( 2010) 13
SCC 158, it was held that when possession is to be taken of a large tract of
land then it is permissible to take possession by a properly executed
panchnama.
16. In Banda Development Authority Vs. Moti Lal Agarwal
(2011) 5 SCC 394 the Supreme Court laid down the following principles as
to what act would constitute taking possession of an acquired land, namely:
“(i) No hard-and-fast rule can be laid down as to what act would
constitute taking of possession of the acquired land .
(ii) If the acquired land is vacant, the act of the State authority
concerned to go to the spot and prepare a panchnama will
ordinarily be treated as sufficient to constitute taking of
possession.
(iii) If crop is standing on the acquired land or building/structure
exists, mere going on the spot by the authority concerned will, by
itself, be not sufficient for taking possession. Ordinarily, in such
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14occupier of the building/structure or the person who has
cultivated the land and take possession in the presence of
independent witnesses and get their signatures on the
panchnama. Of course, refusal of the owner of the land or
building/structure may not lead to an inference that the
possession of the acquired land has not been taken.
(iv) If the acquisition is of a large tract of land, it may not be
possible for the acquiring/designated authority to take physical
possession of each and every parcel of the land and it will be
sufficient that symbolic possession is taken by preparing
appropriate document in the present of independent witnesses
and getting their signatures on such document.
(v) If beneficiary of the acquisition is an agency/’instrumentality
of the State and 80% of the total compensation is deposited in
terms of Section 17(3-A) and substantial portion of the acquired
land has been utilised in furtherance of the particular public
purpose, then the court may reasonably presume that possession
of the acquired land has been taken.”
17. The same view was reiterated in State of Tamil Nadu Vs.
Mahalakshmi Ammal (AIR 1996 SC 866) and Tamil Nadu Housing
Board Vs. A. Vishwan (AIR 1996 SC 3377).
18. The Supreme Court, in the case of Hari Ram (Supra) and Bhaskar
Jyoti Sarma (supra) has held that actual physical possession is required to be
taken by the State Government under Sections 10(5) and 10(6) of the Act,
otherwise the benefit of Repeal Act would have to be given to the petitioner.
19. In the background of the facts and circumstances of the case,
upon considering the submissions of the learned counsel for the parties and
upon perusal of the original records the principles laid down in the judgment
of Banda Development Authority (Supra), this Court is satisfied that
actual physical possession of the land in question was never taken by the
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State Government. This Court finds that the memo of possession is nothing
but a mere noting of the officials of the State Government prepared in their
office. No credence can be given to this document. The possession memo
even does not bear the signature of the petitioner by which the possession is
alleged to have been taken under Section 10(5) of the Act nor there is
anything to indicate that the possession was taken in the presence of any
independent person.
20. In the light of the aforesaid, it is clear that the State Government
could not establish that they have taken actual physical possession of the
land from the petitioner.
21. The judgment relied upon by the State passed by the Division
Bench of this Court in Ramnarayan (supra), is not applicable in the
present case as in the said case, the State Government after preparing
Panchnama in the presence of witnesses, had taken the possession of the
land.
22. In view of the aforesaid, the writ petition is allowed and the writ
of mandamus is issued holding that all the proceedings initiated against the
petitioner under the provisions of Urban Land Ceiling and Regulation Act,
1976 are hereby quashed.
(MILIND RAMESH PHADKE)
JUDGE
ojha
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