Madhya Pradesh High Court
Suresh Kumar Kachhi [Patel] vs The State Of Madhya Pradesh on 28 July, 2025
Author: Vishal Mishra
Bench: Vishal Mishra
NEUTRAL CITATION NO. 2025:MPHC-JBP:35052
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 28 th OF JULY, 2025
WRIT PETITION No. 539 of 2012
SURESH KUMAR KACHHI [PATEL] AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Manikant Sharma - Advocate for petitioner.
Shri Sumit Raghuwanshi -Government Advocate for respondents/State.
ORDER
Assailing the order dated 23.06.2011 passed by the Additional Collector,
Jabalpur in Revenue Case No.08/A-90(B-9)/85-86 whereby an application
submitted by the petitioners has been rejected, the present petition has been filed.
2. It is the case of the petitioners that the petitioner No.1 is owner of
agricultural land being Khasra No.19/3 area 0.951 hectare situated at village
Bahdan, Tehsil and District Jabalpur and the petitioner No.2 is owner of land
being Khasra No.19/4 area 0.951 hectare at village Bahdan, Tehsil and District
Jabalpur. The proceedings under the Urban Land (Ceiling and Regulation) Act,
1976 (hereinafter referred to as ‘the Act of 1976’) were started on 27.09.1985. The
Revenue Inspector submitted a report on 11.05.1987 showing the land
admeasuring 34940.25 sq. meter as surplus and the final draft statement was
prepared in terms of Section 9 of the Act of 1976 on 10.11.1987. The petitioners
filed an appeal before the Commissioner and vide order dated 04.04.2000, the
ceiling proceedings were held to be abated, but despite of the same, the names of
the petitioners were not recorded in the revenue records. No notice under Section
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KUMAR JHARIYA
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10(5) of the Act of 1976 was served upon the petitioners and they are continuously
in possession of the land in question. Thereafter, the petitioners filed an
application under Section 4 of the Repeal Act of 1999 read with Section 109, 116
of the Madhya Pradesh Land Revenue Code for recording their names in the
revenue records which was dismissed vide impugned order.
3. It is argued that 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, the final draft statement was not served upon the petitioners
or any of the other interested persons. Thereafter, the land was notified 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. It is argued that
possession was never taken from the petitioners as per mandatory provisions of
Section 10(5) and 10(6) of the Act of 1976. Neither any notice under Section 10(5)
of the Act has been issued nor the proceedings under Section 10(6) of the Act has
been initiated. The petitioners remained in cultivating possession of the land in
question.
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. The
petitioners’ land was not affected by Old Act of 1976 and the petitioners are 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. The case has to be
considered in terms of Repeal 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 petitioners. An
innocuous prayer is made to direct the Collector to reconsider all the aspects of the
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KUMAR JHARIYA
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matter and pass a fresh order after giving audience to the petitioners. Learned
counsel for the petitioners 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 Repeal 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 remanded back the matter to the Collector
to reconsider the same. The petitioners pray for a similar relief to be extended to
them.
5. In spite of notice being issued, no reply has been filed by the State
authorities. It is 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 way back after initiation of proper proceedings, the provisions of the
Repealed Act of 1999 is not applicable to the case of the petitioners. Under these
circumstances, the proceedings cannot be declared to be illegal. The land in
question has already been vested in the State Government. They have prayed for
dismissal of the petition.
6. Heard learned counsel for the parties and perused the records.
7. Challenge is made to the order passed by the authority in rejecting the
claim of the petitioners for declaring the proceedings initiated under the Act of
1976 to be lapsed in view of the Repeal Act of 1999, as the possession of the land
has not been taken over at any point of time.
8. Mainly two grounds are raised by the petitioner in the present writ
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petition; firstly that no notice under Section 10(5) of the Act of 1976 has been
issued; 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 and that no proceedings
under Section 10(6) of the Act of 1976 have been drawn by the authorities.
9. It is not in dispute that land bearing Khasra Nos.19/3 & 19/4 having
area 0.951 hectare and 0.951 hectare respectively 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 the contention
of the petitioners 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 possession was taken over
from the petitioners. However, the fact remains that there were no documents on
record to show that possession has been taken over by the authorities. Neither any
notice under Section 10(5) of the Act has been issued nor the proceedings under
Section 10(6) of the Act has been initiated.
10. 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 Sections 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:
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“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 look 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.
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166, 169 (Ct. Int’l Trade 1997]”
11. 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:
“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.”
12. If the facts of the present case are analyzed in view of aforesaid settled
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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 petitioners claims to be
in possession of the property in question. There is nothing on record to show that
any proceedings under Section 248 of Madhya Pradesh Land Revenue Code were
initiated against the petitioners for getting the land vacated at any point of time.
13. 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
deliver 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
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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”.”
14. There is nothing on records to show that any notice under Section
10(5) of the Act of 1976 was served to the petitioners or his ancestors or
proceedings under Section 10(6) has been initiated in the matter. 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 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
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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 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.”
15. If the Sections 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 persons who are in
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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 petitioners and other who are in possession of the property and they have
refused to hand over the possession of the property in question. There is nothing
on record to show that possession of the land in question has been taken over from
the petitioners. It was only a paper possession which is taken by the authorities,
which is not permissible. There is nothing on record to show that any notice under
Section 10(5) of the Act has been issued or the proceedings under Section 10(6) of
the Act has been initiated.
16. In view of the aforesaid facts and circumstances, the order impugned
dated 23.06.2011 passed by the Additional Collector is per se illegal and is
unsustainable. The same is hereby quashed. The matter is remanded back to the
respondent No.3/Collector to reexamine the case of the petitioners 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 in the case of
Ghasi @ Ghassu Lodhi (supra) and pass a fresh order after granting opportunity of
hearing to the petitioners within a period of 30 days from the date of receipt of a
certified copy of this order.
17. With the aforesaid observations, the writ petition stands disposed off.
No order as to costs.
(VISHAL MISHRA)
JUDGE
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KUMAR JHARIYA
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