Madhya Pradesh High Court
Anil Kumar Yadav vs The State Of Madhya Pradesh on 11 July, 2025
Author: Vishal Mishra
Bench: Vishal Mishra
NEUTRAL CITATION NO. 2025:MPHC-JBP:34596
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 11th OF JULY, 2025
WRIT PETITION No. 10084 of 2010
ANIL KUMAR YADAV
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Rahul Diwaker - Advocate for petitioner.
Shri Dheeraj Kumar Tiwari - Panel Lawyer for respondents/State.
ORDER
Assailing the order dated 05.05.2010 passed by the Additional
Collector, Jabalpur in Revenue Case No.116/A-90/B-9/79-80 whereby an
application submitted by the petitioner has been rejected, the present petition
has been filed.
2. It is the case of the petitioner that petitioner’s father was the owner
of agricultural land bearing Khasra Nos.27, 30 & 32 total area 4.541 hectares
situated in Mouza Nayagaon, District Jabalpur where he was living with
sons, daughters since 1976. The Central Government enacted Urban Land
(Ceiling and Regulation) Act, 1976 (hereinafter referred to as ‘the Act of
1976’) which came into force on 17/02/1976 and subsequently it was
adopted by the State of Madhya Pradesh on 09/09/1976. The Act provides
for limitations for holding the land, i.e. sealing limit on vacant land is fixed
at 500 sq.meter for the urban agglomerations of metropolitan areas of Delhi,
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Signed by: SUSHEEL
KUMAR JHARIYA
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Bombay, Calcutta, Madras having population exceeding 10 lakhs falling
under category A; at 1000 sq.meter for urban agglomeration with a
population of 10 lakhs and above excluding 4 metropolitan areas falling
under category B; at 1500 sq. meter for urban agglomerations with
population between 3 lakhs and 10 lakhs falling under category C; And at
2000 sq. meter for when agglomerations with population between 2 lakhs
and 3 lakhs falling under category D. Jabalpur falls under category ‘C’ city
within the limit of 1500 sq. meter per unit. The petitioner’s land were under
the plough and does not fall under the purview of vacant land but due to the
wrong advice, the proceedings under the Urban Land and Ceiling Act were
initiated against the petitioner. It is argued that no land was vacant, therefore,
definition of vacant land defined in Sections 2(q) and 2(o) of the Act are not
attracted. The competent authority/respondent No.2 proceeded in terms of
section 8 of the Act of 1976. The draft statement was issued on 19-06-1980
by the respondent No.2. Thereafter the final draft statement was prepared in
terms of Section 9 of the Act of 1976 on 22-03-1982. The land bearing
Khasra Nos.27, 30 & 32 area being 4.541 hectare was declared to be surplus
land. The final draft statement was served on 02-04-1982 to Kunjilal.
3. It is argued that as other major sons and daughters of Kunjilal
were also residing in the premises and were occupying the land in question
and carrying out their agricultural activities, therefore, the final draft
statement should be served upon the holder and to other interested persons so
as to give them opportunity to raise any objection. However, except Kunjilal
the final draft statement was not served upon any of the other interested
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KUMAR JHARIYA
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persons. Thereafter the land was notified by the respondent No.2 as required
under Section 10 of the Act of 1976 without fulfilling the conditions that all
concerned persons should be served with the final draft statement. Thereafter
notice under Section 10(5) of the Act of 1976 was issued and it was directed
that the petitioner should surrender the vacant land admeasuring 44110.62 sq.
meter from Khasra Nos. 27, 30 & 32 to the State Government. Copy of such
notice was never served upon the petitioner’s father. Thereafter the
possession warrant was issued. It is argued that possession was never taken
from the petitioner and they remained in cultivating possession of the land in
question and was staying therewith with the entire family members. The
respondent No.2 has issued a possession letter to Tehsildar on 15.07.1989,
however, the possession was never taken from the petitioner.
4. It is argued that Act of 1976 was repealed by an Act of 1999
which came into force on 22.03.1999 which was adopted by the State
Government. As the petitioner’s land was not affected by Old Act of 1976, he
filed a writ petition being W.P.No.11896 of 2005 before this Court which
was disposed off vide order dated 06.10.2005 observing that “it is submitted
that the possession of the land has not been taken over as contemplated under
Section 10(5) of the Act and now the possession cannot be taken over by
virtue of the Repealed Act, 1999 “. The competent authority was looked into
the matter that whether possession of the land was actually taken over or not
as per law. After receipt of the order passed by this Court, the respondent
No.2 made a spot inspection and it was found that the petitioner and his
brother are in possession of land bearing Khasra Nos.27, 30 and 32. Spot
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KUMAR JHARIYA
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Panchnama to the aforesaid effect was made was prepared. The petitioner has
submitted written arguments on 14.08.2007 along with a copy of judgment
pointing out the fact that in view of the provisions of Repealed Act, 1999,
the earlier proceedings initiated against the petitioner have virtually lapsed as
possession has not been taken over from the petitioner. Once the authorities
themselves mentioned that the petitioner is in cultivating possession of the
land in question, which goes to show that the possession has not been taken
over at any point of time. Now possession from the petitioner cannot be
taken by invoking Section 248 of the Madhya Pradesh Land Revenue Code
declaring him to be an encroacher of the land in question. The case has to be
considered in terms of Repealed Act, 1999 and the order declaring the land
to be surplus on earlier occasion in pursuance to the provisions of the Act of
1976 has virtually lapsed as the possession was never taken away from the
petitioner. The petitioner has approached the Collector by filing a detailed
representation to the aforesaid effect, but of no consequence. Therefore, an
innocuous prayer is made to direct the respondent No.2 to reconsider all the
aspects of the matter and pass a fresh order after giving audience to the
petitioner. Learned counsel for the petitioner has relied upon an order passed
by this Court in the case of Ghasi @ hassu Lodhi and others vs. The State of
M.P. and others (W.P.No.30556 of 2023) dated 23.01.2023 wherein the
entire provisions of Urban Land (Ceiling and Regulation) Act, 1976 and the
Repealed Act, 1999 were taken note of and finding that mere possession on
papers is not sufficient. The provisions of Section 10(5) and 10(6) of the Act
of 1976 are mandatory to be complied with, therefore, this Court has
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KUMAR JHARIYA
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remanded back the matter to the Collector to reconsider the same. The
petitioner prays for a similar relief to be extended to him.
5. On notice being issued, a reply has been filed by the State
authorities. They have denied all the petition’s averments. It is contended that
in the earlier round of litigation, this Hon’ble Court was pleased to direct the
petitioner to approach the competent authority for redressal of his
grievances, who, in turn, would make an inquiry with respect to possession
of land and proceedings initiated under 10(5) of the Act of 1976. Thereafter,
the competent authority has passed an order on 05.05.2010 giving a finding
that the proceedings of 10(5) of the Act of 1976 have been followed. Notices
have been issued and possession has been taken over in terms of provisions
of 10(6) of the Act of 1976. However, the petitioner has not sought for
quashment of the said order. It is further contended that the provisions of
Section 9 of the Act of 1976 does not provide for serving of final statement
on all the interested persons. The only intention of the Legislature is that the
objections, if any, received Sub-Section 4 of Section 8 of the Act of 1976 to
be decided. Once the possession of the property is already taken from the
petitioner way back after initiation of proper proceedings under Sections
10(5) and 10(6) of the Act of 1976, the provisions of the Repealed Act of
1999 will not be applicable to the case of the petitioner. It is contended that
the petitioner has refused to accept the notice of proceedings under Section
10(5) of the Act of 1976, then the authorities were left with no other option
except to take possession in terms of Section 10(6) of the Act of 1976. Even
at the time of handing over the possession of the property, he has refused to
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KUMAR JHARIYA
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sign the documents. The note-sheet has also been written to the aforesaid
effect by the competent authority that despite remaining present on the spot,
he refused to sign the note-sheet. Under these circumstances, the proceedings
cannot be declared to be illegal. The land has already vested in the State
Government.
6. Document Annexure P/17 has been filed by the respondents to
demonstrate that a publication has been issued by the revenue authorities
inviting applications with respect to the land in question so that the land be
handed over to the Municipal Corporation for the purpose of installation of
the Sewage Treatment Plant. But due to the pending litigation, the said
proceedings could not be completed. They have produced a record pertaining
to the Cealing proceedings. He has drawn attention of the Court to the
records in support of his arguments. He has prayed for dismissal of the
petition.
7. Heard learned counsel for the parties and perused the records.
8. Challenge is made to the order passed by the authority in rejecting
the claim of the petitioner for declaring the proceedings initiated under the
Act of 1976 to be lapsed in view of the Repealed Act of 1999, as the
possession of the land has not been taken over at any point of time.
9. Relevant dates for the purpose of adjudication in the present case
are that a draft statement was prepared on 19.06.1980 by the respondent
No.2; the final draft statement was prepared on 22-03-1982; notice was
issued to one Kunji Lal on 02-04-1982. Thereafter notice was issued under
Section 10(5) of the Act of 1976 declaring the land to be surplus and
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Signed by: SUSHEEL
KUMAR JHARIYA
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thereafter issuance of notice under Section 10(6) of the Act of 1976 for
handing over the possession from Kunji Lal.
10. It is not in dispute that land bearing Khasra Nos.27, 30 and 32
total area being 44,110.62 sq. meter was declared to be surplus. Provisions of
Sections 10(5) and 10(6) of the Act of 1976 are mandatory provisions to be
complied with in ceiling proceedings matters. It is argued by the counsel for
the petitioner that the possession of the land has never been taken over by the
Government at any point of time and they are still in cultivating possession
of the property, whereas, according to the respondents, the petitioner has
refused to sign the documents, therefore, proceeding in terms of Section
10(6) of the Act of 1976, the possession was taken over from the petitioner,
which is reflected from order sheet dated 15-07-1989. However, the fact
remains that in earlier round of litigation, the said proceedings were put to
challenge by the petitioner by filing a writ petition being W.P.No.11896 of
2005, wherein, the authorities were directed to reconsider the case of the
petitioner and pass a fresh order. In pursuance to the same, the authorities
reconsidered the case of the petitioner and passed a fresh order on 05-05-
2010, which is the order impugned.
11. Mainly two grounds are raised by the petitioner in the present
writ petition. Firstly that in terms of Section 9 of the Act of 1976, a copy of
the draft statement has to be supplied to all the concerned interested parties.
However, the same was not done and the final draft statement was only
served to Kunjilal, to which, it is argued by the respondents that as Kunjilal
was the owner of the property in question and, therefore, there was no
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requirement of serving a final draft statement to any other person. The record
further reflects that the authorities have taken a stand that the petitioner has
refused to sign the documents despite being present on the spot when the
possession was taken over by the Government. Therefore, it cannot be said
that proceedings are not being followed by the authorities.
12. The Hon’ble Supreme Court recently in the case of M/s A.P.
Electrical Equipment Corporation v. Tehsildar and others reported in 2025
Supreme (SC) 407 had an occasion to consider the aspect of the Urban Lands
(Ceiling and Regulation) Act 1976 and subsequent Repealed Act of 1999.
The Hon’ble Supreme Court has emphasized the necessity of taking actual
physical possession of the property. The proceedings under Section 10(5)
and 10(6) of the Act of 1976 were held to be mandatory and failure to
comply with the said provisions, rendered the entire action to be void. Mere
paper possession is insufficient to establish legal possession. The entire
burden lies upon the State to demonstrate that they have actually taken over
the possession of the property in accordance with law. The Hon’ble Supreme
Court in the aforesaid case has held as under:
“41. The propositions of law governing the issue of possession in
context with Sections 10(5) and 10(6) respectively of the Act,
1976 read with Section 3 of the Repeal Act, 1999 may be summed
up thus:
[1] The Repeal Act, 1999 clearly talks about the possession being
taken under Section 10(5) or Section 10(6) of the Act, 1976, as the
case may be.
[2] It is a statutory obligation on the part of the competent
authority or the State to take possession strictly as permitted in
law.
[3] In case the possession is purported to have been taken under
Section 10(6) of the Act, 1976 the Court is still obliged to lookSignature Not Verified
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into whether “taking of such possession” is valid or invalidated on
any of the considerations in law.
[4] The possession envisaged under Section 3 of the Repeal Act,
1999 is de facto and not de jure only.
[5] The mere vesting of “land declared surplus” under the Act
without resuming “de facto possession” is of no consequence and
the land holder is entitled to the benefit of the Repeal Act, 1999.
[6] The requirement of giving notice under sub-sections (5) and (6)
of Section 10 respectively is mandatory. Although the word “may”
has been used therein, yet the word “may” in both the sub-sections
should be understood as “shall” because a Court is obliged to
decide the consequences that the legislature intended to follow
from the failure to implement the requirement.
[7] 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 18th March 1999.
[8] The State has to establish by cogent evidence on record that
there has been a voluntary surrender of vacant land or surrender
and delivery of peaceful possession under sub-section (6) of
Section 10 or forceful dispossession under sub-section (6) of
Section 10.
54. We are of the considered opinion that the issue as regards
taking over of the actual physical possession of the excess land in
accordance with the provisions of sub-sections (5) and (6) of
Section 10 of the Act, 1976 could be said to be a mixed question
of law and fact and not just a question of fact. Mixed question of
law and fact refers to a question which depends on both law and
fact for its solution. In resolving a mixed question of law and fact,
a reviewing court must adjudicate the facts of the case and decide
relevant legal issues at the same time. Mixed questions of law and
fact are defined “as questions in which the historical facts are
admitted or established, the rule of law is resolved and the issue is
whether the facts satisfy the statutory standard, or to put it another
way, whether the rule of law as applied to the established facts is
or is not violated”. [Bausch & Lomb v. United States C.I.T. 166,
169 (Ct. Int’l Trade 1997]”
13. The Hon’ble Supreme Court further in the aforesaid case has
considered the powers of the writ court to determine the disputed questions
of fact and held as under:
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KUMAR JHARIYA
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“47. One stock argument available with the State in this type of
cases is that the question whether the actual physical possession of
the disputed land had been taken over or not is a seriously disputed
question of fact, which the High Court should not adjudicate or
determine in exercise of its writ jurisdiction. As a principle of law,
there need not be any debate on such a proposition, but by merely
submitting that it is a seriously disputed question of fact, the same,
by itself, will not become a question of fact. To put it in other
words, having regard to the materials on record, which falsifies the
case of the State Government, then such materials should not be
overlooked or ignored by the Court on the principle that the issue
with regard to taking over of the actual physical possession would
be a disputed question of fact.
48.Normally, the disputed questions of fact are not investigated or
adjudicated by a writ court while exercising powers under Article
226 of the Constitution of India. But the mere existence of the
disputed question of fact, by itself, does not take away the
jurisdiction of this writ court in granting appropriate relief to the
petitioner. In a case where the Court is satisfied, like the one on
hand, that the facts are disputed by the State merely to create a
ground for the rejection of the writ petition on the ground of
disputed questions of fact, it is the duty of the writ court to reject
such contention and to investigate the disputed facts and record its
finding if the particular facts of the case, like the one at hand, was
required in the interest of justice.
49. There is nothing in Article 226 of the Constitution to indicate
that the High Court in the proceedings, like the one on hand, is
debarred from holding such an inquiry. The proposition that a
petition under Article 226 must be rejected simply on the ground
that it cannot be decided without determining the disputed
question of fact is not warranted by any provisions of law nor by
any decision of this Court. A rigid application of such proposition
or to treat such proposition as an inflexible rule of law or of
discretion will necessarily make the provisions of Article 226
wholly illusory and ineffective more particularly Section 10(5)
and 10(6) of the Act, 1976 respectively. Obviously, the High
Court must avoid such consequences.”
14. If the facts of the present case are analyzed in view of aforesaid
settled proposition of law, then it is seen that it is only a paper possession
which is taken over by the authorities and not the actual possession. The
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petitioner claims to be in possession of the property in question since 1976.
If the claim of the authorities is that they have taken possession of the
property way back, then how the petitioner is in continuous possession of the
property in question for more than three decades. There is nothing on record
to show that any proceedings under Section 248 of Madhya Pradesh Land
Revenue Code were initiated against the petitioner for getting the land
vacated at any point of time.
15. The Supreme Court in the cases of D.R. Somayajulu, Secretary,
Diesel Loco Shed and South Eastern Railway House building Cooperative
Society Limited, Vishakhapatnam & Others Vs. Attili Appala Swamy and
Others reported in (2015) 2 SCC 390 and in the case of State of U.P. Vs.
Hariram reported in (2013) 4 SCC 280 had an occasion to consider the aspect
of peaceful dispossession and forceful dispossession and observed as under:-
“Peaceful dispossession
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 deliverSignature Not Verified
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possession. Sub-section (5) of Section 10 visualises a situation of
surrendering and delivering possession, peacefully while sub-
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”.”
16. There is nothing on records to show that notice under Section
10(5) of the Act of 1976 was served to the petitioner. For the aforesaid
purpose, provisions of Section 10(5) of the Urban Land (Ceiling and
Regulation) Act, 1976 are important and are required to be seen. They are as
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under:
“10. Acquisition of vacant land in excess of ceiling limit. (1) As
soon as may be after the service of the statement under section 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 claims 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
information of the general public in the Official Gazette of the
State concerned and in such other manner as may be prescribed.
(2) After considering the claims of the persons interested in the
vacant land, made to the competent authority in pursuance of the
notification published under sub-section (1), the competent
authority shall determine the nature and extent of such claims and
pass such orders as it deems fit.
(3) At any time after the publication of the notification under sub-
section (1), the competent authority may, by notification published
in the Official Gazette of the State concerned, declare that the
excess vacant land referred to, in the notification published under
sub -section (1) shall, with effect from such date as may be
specified in the declaration, be deemed to have been acquired by
the State Government and upon the publication of such
declaration, such land shall be deemed to have vested absolutely
in the State Government free from all encumbrances with effect
from the date so specified.
(4) During the period commencing on the date of publication of
the notification under sub-section (1) and ending with the date
specified in the declaration made under sub-section (3)-
(i) no person shall transfer by way of sale, mortgage, gift, lease or
otherwise any excess vacant land (including any part thereof)
specified in the notification aforesaid and any such transfer made
in contravention of this provision shall be deemed to be null and
void; and
(ii) no person shall alter or cause to be altered the use of such
excess vacant land.
(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 authorised by the State Government in this behalf
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within thirty days of the service of the notice.
(6) If any person refuses or fails to comply with an order made
under sub-section ( 5), the competent authority may take
possession of the vacant land or cause it to be given to the
concerned State Government or to any person duly authorised by
such State Government in this behalf and may for that purpose use
such force as may be necessary.”
17. If the Section 10(5) and Section 10(6) of the Act of 1976 are
seen then it is clear that a notice in writing is to be served upon a person who
may be in possession of the land in question asking him to surrender or
deliver possession within 30 days after publication of the notification under
Sub-section 1 of Section 10 of the Act of 1976 and in case such a person
refuse to deliver possession then proceedings under Section 10(6) of the Act
of 1976 are required to be initiated. Heavy burden upon the State
Government to show that written notice was served upon the petitioner and
other who are in possession of the property and they have refused to hand
over the possession of the property in question. Merely stating that they have
refused to sign the documents or hand over the possession is not sufficient.
It is only a paper possession which is taken by the authorities, which is not
permissible.
18. In view of the aforesaid facts and circumstances as well as
considering the records submitted by the authorities, the order impugned
dated 05.05.2010 passed by the Collector is per se illegal and is
unsustainable. The same is hereby quashed. The matter is remanded back to
the respondent No.2/Collector to reexamine the case of the petitioner taking
note of the observations made by the Hon’ble Supreme Court in the case of
M/s A.P. Electrical Equipment Corporation (supra) as well as by this Court
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KUMAR JHARIYA
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in the case of Ghasi @ Ghassu Lodhi (supra) and pass a fresh order after
granting opportunity of hearing to the petitioner within a period of 30 days
from the date of receipt of a certified copy of this order.
19. With the aforesaid observations, the writ petition stands disposed
off. No order as to costs.
(VISHAL MISHRA)
JUDGE
sj
Signature Not Verified
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KUMAR JHARIYA
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