2025 INSC 274
SUPREME COURT OF INDIA
(HONBLE B.
PARDIWALA, J. AND HONBLE R. MAHADEVAN, JJ.)
M/S A.P. ELECTRICAL
EQUIPMENT ...
Petitioner
VERSUS
THE TAHSILDAR
Respondent
Civil
Appeal Nos 4526-4527 OF 2024-Decided on 27-02-2025
Civil
(A) Urban
Land (Ceiling and Regulation) Act, 1976, Section10(3), 10(5) Urban Land
(Ceiling and Regulation) Repeal Act, 1999 - Urban Land Ceiling - Excess
land Surrendering
possession - Sub-section (5) of
Section 10 talks 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 Government Held that if de facto possession has
already passed on to the State Government by the two deeming provisions under
sub-section (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 sub-section (3) to Section 10 can be voluntary
so that the person may get the compensation as provided under Section
11 of the Act, 1976 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) to Section 10 to surrender or deliver possession
- Sub-section (5) of Section 10 visualizes a situation of surrendering and
delivering possession, peacefully while sub-section (6) of Section 10
contemplates a situation of forceful dispossession.
(Para 37 and 38)
(B)
Urban Land (Ceiling and Regulation) Act, 1976, Section10(3), 10(5) Urban Land
(Ceiling and Regulation) Repeal Act, 1999 - Urban Land (Ceiling
Surrendering possession
Held that 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 18.03.1999 - 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 landowner
or holder can claim the benefit of Section 3 of the Repeal Act, 1999 - In the
case on hand, the State Government has not been able to establish any of those
situations and hence the learned Single Judge was right in holding that the
appellant herein is entitled to get the benefit of Section 3 of the Repeal Act,
1999.
(Para 39)
(C)
Urban Land (Ceiling and Regulation) Act, 1976, Section10(3), 10(5)
Constitution of India, Article 226 Urban Land Ceiling - Excess land
Question of possession
Disputed question of fact - Held that 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.
(Para 49)
(D)
Urban Land (Ceiling and Regulation) Repeal Act, 1999 Urban Land Ceiling - Excess
land -
Effect of repeal Act, 1999 - If the landowner remains in physical possession,
then irrespective of his land being declared surplus and/or entry being made in
favour of the State in revenue records, he will not be divested of his rights -
Even if compensation is received that also will not dis-entitle him to claim
the benefit if compensation is refunded, provided he is in actual physical
possession - Payment of compensation has no co-relation with the taking of
actual physical possession as with the vesting land compensation becomes
payable which can be paid without taking actual physical possession.
(Para 40)
(E)
Urban Land (Ceiling and Regulation) Act, 1976, Section10(3), 10(5) Urban Land
(Ceiling and Regulation) Repeal Act, 1999 - Urban Land Ceiling - Excess
land Question of possession - 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 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.
(Para
41)
(F) Intra-court appeal
Scope
Held that an intra-court appeal is really not a statutory appeal preferred
against the judgment and order of an inferior to the superior court - The
appeal inter se in a High Court from one court to another is really an appeal
from one coordinate bench to another coordinate bench and it is for this reason
that a writ cannot be issued by one Bench of the High Court to another Bench of
the High Court nor can even the High Court issue writ to a High Court - Thus,
unlikely an appeal, in general, an intra court appeal is an appeal on principle
and that is why, unlike an appeal, in an ordinary sense, such as a criminal
appeal, where the whole evidence on record is examined afresh by the appellate
court, what is really examined, in an intra court appeal, is the legality and validity
of a judgment and/or order of the learned Single Judge and it can be set aside
or should be set aside only when there is a patent error on the face of
the record or the judgment is against the established or settled principles of
law - If two views are possible and a view, which is reasonable and logical has
been adopted by a Single Judge, the other view howsoever appealing may be to
the Division Bench, it is the view adopted by the learned Single Judge, which
should, normally, by allowed to prevail.
(Para
42)
(G) Constitution of
India, Article 226 Writ jurisdiction Disputed question of facts - 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.
(Para
48)
(H) Constitution of
India, Article 226 Urban Land (Ceiling and Regulation) Act, 1976,
Section10(3), 10(5) Writ jurisdiction Excess land Question as to
possession - Disputed question of fact If the only issue, that revolves
around the entire debate is one relating to actual taking over of the physical
possession of the excess land under the provisions of sub-sections (5) and (6)
of Section 10 of the Act, 1976 respectively, then in such
circumstances, the writ court has no other option but to go into the factual
aspects and take an appropriate decision in that regard - The issue of
possession, by itself, will not become a disputed question of fact - If all
that has been said by the State is to be accepted as a gospel truth and nothing
shown by the landowner is to be looked into on the ground that a writ court
cannot go into disputed questions of fact, then the same may lead to a serious
miscarriage of justice.
(Para
53)
(I) Constitution of
India, Article 226 Urban Land (Ceiling and Regulation) Act, 1976,
Section10(3), 10(5) Writ jurisdiction Excess land - Question as to possession -
Disputed question of facts Mixed question of law and fact - Held 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.
(Para
54)
JUDGMENT
J.B.
Pardiwala, J. :- Since the issues raised in both the captioned appeals are
same, the parties are also same and the challenge is also to the self-same
judgment and order passed by the High Court, those were taken up for
hearing analogously and are being disposed of by this common judgment and
order.
2.
..One of the first and highest duties of all courts is to take care that the
act of the Court does no injury to any of the Suitors, and when the expression
the act of the Court is used, it does not mean merely the act of the Primary
Court, or of any intermediate Court of appeal, but the act of the Court as a
whole, from the lowest Court which entertains jurisdiction over the matter up
to the highest Court which finally disposes of the case. [Privy Council in
Alexander Rodger Charles Carnie v. Comproir DEs compte De Paris, 1871 Law
Reports 3 Privy Council 475]
3.
These appeals arise from a common judgment and order passed by the High Court
for the State of Telangana and Hyderabad dated 03.01.2022 in Writ Appeal No.
665 of 2022 and Writ Appeal No. 670 of 2022 respectively by which both the writ
appeals filed by the State came to be allowed thereby setting aside the
judgment and order passed by the learned Single Judge of the High Court
allowing the writ petitions filed by the appellants-herein.
4.
The facts giving rise to these appeals may be summarized as under:-
i) M/S A.P. Electrical
Equipment Corporation (Now known as ECE INDUSTRIES LIMITED), hereinafter the
appellant is a company engaged in the business of manufacture and sale of power
transformers and other electrical equipment. For the purpose of establishing
its manufacturing unit, the appellant company had purchased land measuring
1,63,764 (Sq. yards in Survey Nos 74,75,76, 78, 79) (Subject Land) and the
same is the subject matter of the present appeals.
ii) The subject land
is situated in Fatehnagar Village Balanagar Mandal, Rangareddy District.
iii) Following the
enactment of the Urban Land (Ceiling and Regulation) Act, 1976 (for
short, the Act, 1976), the appellant filed a declaration in Form
I under Section 6(1) of the Act, 1976 whose declaration was
taken up as C.C. No. 10571 of 1976 by the special officer and competent
authority of urban land ceiling department for utilization of excess land. The
declaration, which covered the appellants holdings in Hyderabad and
Visakhapatnam, was duly processed by the authorities.
iv) Lands held
by the appellant at Hyderabad are as under:
|
S.No |
Properties |
Area
(in Sq. Mtrs) |
|
1. |
Total
extent in Sy. Nos- 74/P, 75/P,
76/P, 78 & 79 in Fathenagar
(Vg) |
163679 |
|
2. |
Extent
covered by GVM road in Sy.
No. 78 & 79 in T.S. No. 3 &
6 of Block A = 5088 Sq Meters |
163679-5088
= 158591 |
|
3. |
Extent
exempted by the Government
u/s 20(1)(a) vide G.O.Ms
No. 1729 dt 23.11.82 = 51580.00
Sq meters |
158591-51580
= 107011 |
|
4. |
Extent
Exempted u/s 21 under Housing
Scheme in Sy. Nos.74/P, 75/P = 56730.57 Sq Mtrs |
107001-56730.57
= 50280.43 |
|
5. |
Total
Extent exempted i.e. (108310.57
Sq Mtrs) |
|
|
6. |
Extent
Effected by Roads in Sy.
No. 74/P, 75, 76 as per MCH Plan,
3742.00 Sq Mtrs out of 50283.00 Sq Mtrs |
50280.43-3742
= 46538.43 |
|
7. |
Surplus
extent in Sy.No. 74/P, 75/P
& 76/P (Fatehnagar) |
46538.43 |
v) In respect of the
Hyderabad holdings, the appellants submission led to the issuance of
Government Orders, notably GO Ms. No. 1729 (dated 27 November 1982), whereby
the exemptions were granted under Section 20(1)(a):-
a. The entire land in
Surveys 78 and 79 was exempted on the ground that a factory had been
constructed there;
b. A portion of the
land in Surveys 74, 75 and 76 measuring approximately 48,859.50 square metres
was exempted subject to the condition that separate industrial structures be
constructed within a prescribed period;
c. The appellant had also filed a declaration
under Section 21(1) of the ULC Act and the same declaration was taken
up as for accommodation of weaker sections to an extent of 56,730.57 square
meters out of the aforesaid land. Accordingly, permission was accorded by the
Special Officer and Competent Authority under Section 21(1) of the
ULC Act on 04.02.2001. While granting the permission, a condition was imposed
on the appellant that the construction of the dwelling units shall be for the
weaker sections of the society and the same should be completed within 5 years.
It was alleged that the appellant had failed to construct the dwelling units
within the specified period thereby violating the condition while granting
permission under Section 21(1) of the ULC Act.
vi) In respect of the
land in Survey Nos. 74, 75 and 76 respectively, the dated 07.04.1990
withdrawing the exemption granted earlier under G.O.Ms. No. 1729.
vii) The stance of the
Respondents is that the failure on the part of the appellant to utilize the
48,859.50 sq. m. portion in the prescribed manner led to the withdrawal of the
exemption for that land, as affected by GO Ms. No.303. On April 7, 1992, the
Special Officer and the Competent Authority for Urban Land Ceiling, Hyderabad,
issued a draft statement under Sections 8(1) and 8(3) of the
Act, 1976 respectively, provisionally categorizing the appellant as holding
surplus land amounting to 1,01,645 sq. m.
viii) Later, on
03.04.2005, the Special Officer issued an order under Section 8(4) determining
that the excess vacant land in the Hyderabad Urban Agglomeration measured
46,538.53 sq. m. of this total, the appellant was entitled to retain 1,000 sq.
m. under Section 4(1)(b) of the ULC Act, leaving
a balance of 45,538.43 sq. m. as vacant hand.
ix) Aggrieved by the
order dated 03.04.2005, the appellant approached the Appellate authority by way
of an appeal under Section 33 bearing no. Hyd/11/2005. The Appellate authority
vide order dated 28.07.2005, set aside the order appealed against and remanded
the matter to the special officer and competent authority for fresh
computation. After due enquiry, a revised order under Section 8(4) of
the ULC Act and final Statement under Section 9 of the ULC Act were
issued on 20.03.2007 which determined the surplus at 46,538. 43 sq. mts. which
was separate from the land exempted under Section 21 of the ULC Act.
x) It is the case of
the Respondents that the Government of Andhra Pradesh issued a notification
under Section 10(1) of the ULC Act, in the Andhra Pradesh Gazette
inviting claims from persons interested in the Subject land measuring
46,538.43 sq. mts. It is also the stance of the Respondents that the said
gazette notification was never challenged by the appellant.
xi) After completion
of such computation, notification under Section 10(3) of the ULC Act
was published in the Andhra Pradesh State Gazette dated 03.10.2007, wherein an
extent of 46,538.43 square meters in survey nos. 74/P, 75/P and 76/P of the
Fatehnagar Village in Balanagar mandal was declared to have been acquired by
the State Government, with effect from 12.07.2007. It is the case of the
appellant-herein that the aforesaid notification failed to note that the
surplus land was only to the extent of 45,538.43 sq. mts. and not 46,538.43 sq.
mts.
xii) It is the case of
the appellant that the Competent Authority purportedly issued a notice
under Section 10(5) of the ULC Act dated 05.01.2008 directing the
appellant-herein to surrender the excess vacant land within thirty days.
Further, according to the Respondents since the appellants factory was closed
due to lockout on 05.01.2008 the said notice was affixed on the main door of
the factory premises on 08.01.2008. The operative portion of the notice is
reproduced herein below:-
Whereas the lands in
sy.Nos. 75/p, 75/p, 76/p to an extent of£ 46538.43 Sq/Mtrs. Fatehnagar vg.,
Balanagar Mandal, Ranga Reddy District, Marripalen vg. Visakhapatnam District
in Sy. No. 59/3, 8437.48 Sq. Mtrs. (B Category) equivalent to 12,656.22 Sq.
Mtrs. (C- Category) and which are in your possession are deemed to have vested
absolutely in the State Government free from all encumbrance with effect from
the 12.07.2007 under Sub- section (3) of Section 10 of the Urban land (Ceiling
& Regulation) Act, 1976 (Central Act 33 of 1976) vide Notification No. G
1/10571/76, published at pages 1 of part-II Extraordinary of the
Andhra Pradesh Gazette No. 288 dated 3.10.2007. Now, therefore, in
exercise of the powers conferred by sub-section (5) of section 10 of
the Urban Land (Ceiling and Regulation) Act, 1976 (Central Act, 33 of 1976), I
hereby order you to surrender/deliver possession of the said land to Sri S.A.
Khader, Deputy Tahsildar of this office within thirty days of the service of
this Notice.
xiii) According to the
Respondents due to non-compliance of the aforementioned notice, order
under Section 10(6) of the ULC Act was issued on 05.02.2008
authorising the enquiry officer to take over the possession of the Surplus
Land. Accordingly, the Enquiry Officer took over the possession of the surplus
land on 08.02.2008 to the extent of 46,538.43 Square Meters in Survey Nos.
74/P, 75P and 76P in Fatehnagar Village, Balanagarmandal, Ranga Reddy District.
5.
The operative part of the order is reproduced herein below:-
Notice U/s 10(5) of the Act was issued to the
M/s A.P.E.E.C Fathenagar Balangar Mandal, RR Dist. asking them to deliver the
possession of the following surplus land withing 30 days from the date of the
service of notice u/s 10(5) of the Act.
|
Sl.
No. |
Description
of the Property |
Location |
Extent
in Sq. Mtrs |
|
1 |
Sy.
Nos.74/P, 75/P, 76/P |
Fathenagar
vg. Balanagar, Mandal, Ranga
Reddy District. Marriapalem vg.
Visakhapatnam District |
46538.43
Sq Mtrs 8437.48 Sq Mts
(B_Category)equivalent to 12656.22 Sq Mtrs (C Category) |
The 30-days time given
in the notice U/s 10(5) of the Act expired on 01- 10-2008 buy they failed to
deliver possession before the expiry date. Hence Sri SA Khader Enquiry officer
of this office is authorized to take over the possession of land
in question U/s 10(6) of the Act and hand over the same to the Mandal
Revenue Officer concerned and report compliance within one week positively.
xiv) According to the
Respondents, the enquiry officer in pursuance of the order dated 05.02.2008
took over the actual physical possession of the surplus Subject Vacant Land on
08.02.2008 by way of a panchnama. It is the case of the Respondents that the
panchnama was prepared by the Deputy Tahsildar and enquiry officer in the
presence of three panchas and the said possession was taken over by drawing a
valid panchnama. The relevant extracts of the panchnama is reproduced herein
below:-
|
Sl.
No. |
Panchas
Name |
Aged |
Occupation |
Residence |
|
1. |
Ramaiah |
50 |
Business |
Fathenagar |
|
2. |
Yashwanadham |
45 |
Coolie |
Fathenagar |
|
3. |
Jagadeesh |
25 |
Carpenter |
Fathenagar |
We three panchas under
the call from Deputy Tahsildar and Inquiry Officer, Urban Land Ceiling,
Hyderabad present at site at Rangareddy District, Balanagar Mandai,
Fathonagm: village limits sy.nos. 74/8, 75/8and 76/f3.
There the Deputy
Tahsildar over the said survey nos. land holding the ownership rights their
land under Urban land ceiling act 1976 (46538.435 mtrs.) is identified as
excess land vide Special Officer, Urban Land Ceiling Hyderabad orders
No.F1/G1/10571/71/76 dated : 5.2.08 through the said land owners are excess
land owners as confirmed said. Such excess land ext.46538.42 sq.mtrs. handover
to government, the said ceiling act sec.1 0(5) the file
no.F1/G1/10571/76/76 dated : 5-1-08 through to the land owners issued the
notice. But according to that notice the said land though the stipulated is
completed, the said excess land not handed over to the government Hence in the
said ceiling act sec.1 0(6) tl1e said excess land to take possession
by the government the Deputy Tahsildar permitting to the Inquiry Officer file
no.F1/G1/10571/76 dated : 9-2-08 through the Special Officer issued the orders.
Hence the inquiry officer according to the orders, today i.e. on 8-2-08 in the
said survey nos. 46538.43 sq.mts. excess land according to sub division sketch
after fixing the boundaries by the surveyor, he himself personally to take into
govt. possession in our panchas presence taken into possession. Hence this
excess land from today onwards is in the govt. possession as confirmed. This
excess land vacant/making plots /made the constructions/structures. This
panchnama took place in our presence is true. Read over in Telugu, as all the
above contents are true believing we signed below.
6.
It is the case of the appellant-herein that the purported panchnama dated
08.02.2008 was prepared in a printed form, and the Respondents allegedly took
symbolic possession of the Subject Land. Admittedly, the actual physical
possession of the Subject Land is with the appellant till date. A copy of the
purported panchnama, a printed Form with gaps filled in, was handed over to the
appellant for the first time on 14.09.2010, when the writ petition was filed
before the High Court.
7.
On 22.04.2008 the State of Andhra Pradesh brought into force the Urban
Land (Ceiling and Regulation) Repeal Act, 1999 (for short, the Repeal
Act, 1999) with effect from 27.03.2008.
8.
According to the appellant in or around 2009, the Respondents attempted to take
action under the purported acquisition proceedings in respect of the Subject
Land. The appellant filed a writ petition before the High Court being Writ
Petition No. 11293 of 2009, against illegal attempts of dispossession by the
Tahsildar. The High Court issued notice in the said Writ Petition and granted
interim injunction in favour of the appellant.
9.
According to the appellant the copies of the purported Section 10(5) Notice,
Section 10(6) Order and the panchnama (collectively, Section 10 Notices) were
handed over to the appellant for the first time on 14.09.2010.
10.
On 20.09.2010 the appellant preferred another writ petition being Writ Petition
No. 23477 of 2010, inter alia assailing the purported panchnama. In Writ
Petition No. 23477 of 2010, the High Court directed that pending further
orders, the appellant shall not be dispossessed from the Subject Land. The
learned Single Judge adjudicated both the writ petitions filed by the appellants
and allowed those vide common judgment and order dated 03.01.2022. The learned
Single Judge held as under:-
From the sum and
substance of the above said judgments of the Hon'ble Supreme Court and various
other Courts, it is clear that the official respondents after issuing notices
under Section 10(1) and 10(3) have to issue notice under Section 10(5)
directing the party to surrender the possession of the land, within a period of
thirty days, and if voluntary possession of the same is not given, then the official
respondents are obligated to issue notice under Section 10(6) to the petitioner
and then take possession. The above judgments also make it abundantly clear
that mere issuance of the notice under Section 10(3) does not automatically
entitle the official respondents to take possession of the notified lands, but
the authorities have to necessarily issue notice under Section 10(5) to the
land owner or any other interested person. The Courts have also held that the
taking over of the possession has to be actual physical possession and not
mere de jure possession.
Having regard to the
above laid proposition of law, the question now before this Court is to see as
to whether the notifications issued under Section 10(5) and 10(6) by the
authorities and the panchnama stand to the legal scrutiny of this Court?
31. The documents
filed, more particularly, the notice issued under Section 10(6) of
the Act reveals that in the said notice, two dates are mentioned i.e.
05.02.2008 and 08.02.2008.
32. Even if the contention
of the official respondents that the 10(5) notice dated 05.01.2008 is sent
through registered post is taken to be true, it will take minimum two or three
days time for the said notice to reach the office of the petitioner. As per the
requirement of ULC Act, the time period of thirty days is prescribed for
issuance of 10(6) notice after issuance of 10(5) notice. If that be so, the
10(6) notice should be dated 08.02.2008. But a perusal of the 10(6) notice
shows that two dates are written on the said notice i.e. the dates of
05.02.2008 and 08.02.2008, which clearly shows that the date 10(6) notice has
been prepared even before the expiry of 30 days. Moreover, in the said notice
it is mentioned as under:
The 30-days time
given in the notice U/s 10(5) of the act expired on 01-10- 2008 but they failed
to deliver possession before the expiry date. Hence Sri. S.A. Khader, Enquiry
Officer of this office is authorized to take over possession of land in
question U/s 10(6) of the Act and hand over the same to the Mandal Revenue
Officer concerned and report compliance within one week positively.
(Emphasis
Added)
33. The above
extracted portion of the 10(6) notice clearly reveals that the notices are
back-dated for the purpose of preparing the said notice and panchanama. It is
beyond comprehension and not understandable as to how the date of 01.10.2008
can be mentioned while calculating the expiry date of thirty days from
either 05.01.2008 or 08.01.2008, as the case may be.
Evidently the person
who was preparing the 10(6) notice did so after the Repeal Act was enacted and
adopted by the then Government of Andhra Pradesh. Even in the counter filed by
the Special Officer & Competent Authority, it is stated as under:
18
A notice U/s.
10(5) of the Act was issued on 5- 1-08 asking the declarant to surrender the
excess vacant, land within (30) days from the date of its receipts. The company
was under lockout, hence the notice issued U/s 10(5) of the Act was affixed on
the main door on 8-1-08. The time stipulated in the notice expired but the
declarant failed to surrender the land. Hence order U/s 10(6) of the Act was
issued on 5-2-08, authorizing the Enquiry Officer of this office to take over
possession of the surplus land and hand it over to the MRO, concerned. The
Enquiry Officer of this office took over possession of the surplus land on
8-2- 2008 to an extent of 46538.43 sq.mtrs. in Sy. Nos. 74/p, 75/p and 76/p, in
Fathenagar Village, Balanagar Mandal and Special Officer, ULC, Visakhapatnam
accordingly took over possession of the surplus land to an extent of 8437.48
sq. mtrs. in Sy. No. 59/3, Marripalem village, Visakhapatnam on 12-3- 2008.
(Emphasis
Added)
34. Even if the above
averments made in the counter are taken to be true and correct, the very
admission on the part of the official respondents that the notice was served on
08.01.2008 and Section 10(6) notice is issued on 05.02.2008 confirms that the mandatory
period of 30 days between Sections 10(5) and 10(6) notices is not met and the
same has to be held void, illegal and bad. Besides, when pointed out by this
Court about the discrepancies with regard to the dates mentioned in the 10(6)
notice and also the non- service of the notice under Section 10(5) to the
petitioner in-person, the learned Special Government Pleader tried to brush
out the same as some clerical errors and argued that the same has to be ignored
as a minor procedural lapse. The two dates mentioned in 10(6) notice belie the
claim of the official respondents that they have taken over the physical
possession of the subject land on 08.02.2008. There is no whisper or
explanation forthcoming from the authorities as to how the date of 01.10.2008
is mentioned in the 10(6) notice while calculating the expiry of 30 days period
from either 05.01.2008 or 08.01.2008. Even a perusal of the 10(5) notice shows
that the same has not been served on the petitioner, but was affixed on the
gate of the factory only on 08.01.2008. There is no signature on the said
notice as to who has received the same except a name has been scribbled (which
is not legible). Having regard to the overwhelming evidence to show that the
physical possession of the land is still with the petitioner, this Court is of
the considered view that the valuable rights of the parties cannot be allowed
to be defeated on the basis of the documents prepared after the Repeal Act
has come into force and the stand of the Government that the dates shown in the
documents are only clerical errors, cannot be accepted and is hereby rejected.
In the absence of any cogent and convincing evidence or document to show that
the Government has taken physical possession of the subject land as contended
or any other material to show that the notices under Sections 10(3), 10(5) and
10(6) were validly prepared and served on the petitioner, both the Section
10(6) notice and panchanama dated 08.02.2008 have to be taken as a bogus and
fabricated one, prepared after the Repeal Act come into force. The material
placed before this Court clinchingly establishes that the physical possession
of the subject premises has not been taken over by the official respondents as
claimed and absolutely there is no material to show that the subject land is in
their physical possession even as on date. The panchanama dated 08.02.2008, on
which the independent witnesses are stated to have affixed their signatures,
relied by the official respondents to substantiate that the officials went
to the site and taken physical possession, do not contain either the addresses
of the panchas or their description and do not instill any confidence in the
Court that they are genuine. The official respondents did not even bother to
file affidavits of the so-called panchas to show that they were present at the
site and the panchanama was prepared in their presence.
Admittedly, there is
no signature of the land owner on the alleged panchanama dated 08.02.2008 or
the site map annexed thereto. Even the description of the panchas or their
addresses or even their temporary addresses are not shown therein. In the
Absence of the signatures of the land owner on the panchanama, the panchanama
and the site map will have to be considered as having been prepared behind the
back of the petitioner and in the office of the authorities. The documents
filed by the petitioner establish beyond any doubt that the factory is still
running, number of apartments are constructed in part of the land and that the
physical possession has not been taken over by the Government,
as contended, but the same is still with the petitioner Company. No
affidavit of any of the panchas has been filed to show that the authorities
have physically gone to the subject land and taken over the possession in the
presence of the owner. The entire exercise of affixing signatures and taking
over the possession of the land appears to have been done sitting in the office
of the authorities and only on paper.
35. It is apt to note
that the Hon'ble Supreme Court in Barangore Jute Factory (referred supra) has
held that where the Statute requires a particular act to be done in a
particular manner, the same has to be done in that manner alone. It is obvious
from the record that the official respondents did not follow the procedure
contemplated under the ULC Act, but acted contrary to it. Once the
ULC Act was repealed by the Central Government and the same has been
adopted by the State Government and physical possession of the land is still
with the petitioners, the preparation of notices under Sections 10(5) and
10(6) and the panchanama of taking possession is void ab initio and non est in
the eye of law. The bare perusal of the panchanama, notices under Sections
10(5) and 10(6) of the ULC Act, do not inspire any confidence in
the Court, which warrants any indulgence of this Court in favour of the
official respondents.
x x x x
38. The documents
filed by the petitioner clearly establish the fact that the physical possession
of the land has not been taken over by the respondents. The photographs filed
by the petitioner show that there is a factory in existence, beside number of
multi storied residential buildings have already been constructed in a part of
the said land, entire land is encompassed with compound wall and gate manned by
security guards. In the absence of any material to show that the procedure as
contemplated under the ULC Act, more particularly sections 10(1), 10(5)
and 10(6) thereof, has been followed in its true letter and spirit, the
irresistible conclusion that can be drawn from the record filed by the
petitioner is that the 10(5) and 10(6) notices are backdated and panchanama has
been prepared in the office of the authorities after the Repeal Act has come
into force and the physical possession of the subject land is still with the
land owner only. It is also pertinent to mention that G.O.Ms. No. 1534 dated
20.12.2008 wherein the Government sought to resume the surplus land has been
set aside by a learned Single Judge of this Court vide order dated 26.10.2009
in W.P. No. 3140 of 2009. Relevant portion of the said order reads as under:
it is clear that possession was not taken under
the Act and proceedings under Section 10(5) and 10(6) have not been initiated
insofar as the subject land is concerned. Therefore, the impugned order passed
by first respondent in directing the Special Officer and Competent Authority to
take possession from the first petitioner though the petitioners 2 and 3 are
in possession of the subject land is arbitrary and illegal, particularly
when the 1976 Act has no application by virtue of Repeal Act, 1999, which was
adopted by the State of Andhra Pradesh with effect from 27.03.2008 i.e. much
prior to issuance of the impugned G.O. In view of the above, I am of the
opinion that the impugned G.O. is liable to be set aside and accordingly set
aside. The writ petition is accordingly allowed. No order as to costs.
(Emphasis
supplied)
11.
Thus, what is discernible from the judgment rendered by the learned Single
Judge referred to above is as under:-
i. Under Sections
10(5) and 10(6) of the Act, 1976 the State is required to take
over physical possession of vacant land in a cogent and convincing manner. As
per the decisions of this Court in State of Uttar Pradesh v. Hari Ram,
(2013) 4 SCC 280, and Gajanan Kamlya Patil v. Additional
Collector and Competent Authority (ULC) and
Ors., (2014) 12 SCC 523 respectively, unless actual physical possession of the
Subject Land is taken over prior to the Repeal Act, 1999 all proceedings shall
stand abated upon its enactment.
ii. Mere issuance of a
notice under Section 10(3) of the Act, 1976 does not automatically
entitle the officials of the Respondents to take possession. The requirement of
giving notice under Sections 10(5) and 10(6) of the Act,
1976 respectively is mandatory.
iii. The documents on
record establish beyond any doubt that the factory is still running, number of
apartments are constructed in part of the Subject Land and that the physical
possession has not been taken over by the Government, as contended, but the
same is still with the Appellant.
iv. In the absence of
any cogent and convincing evidence or document to show that the Government has
taken actual physical possession of the Subject Land as contended or any
other material to show that the notices under Sections 10(5) and 10(6)
respectively were validly prepared and served on the Appellant, both the order
under Section 10(6) and the panchnama have to be treated as bogus and
fabricated. In other words, prepared after the Repeal Act, 1999 came into
force.
V. Even taking the
Respondents case at the highest, the mandatory 30-day period provided to the
landholders between a notice under Section 10(5) and a notice under Section
10(6) was not complied with, making the order under Section 10(6) void, illegal
and bad in law.
vi. Even a bare
perusal of the Section 10(5) Notice shows that the same has not been served on
the Appellant but was affixed on the gate of the factory only on 08.01.2008.
There is no signature on the said notice as to who had received the same except
some name has been scribbled (which is not legible).
vii. The valuable
rights of the parties cannot be allowed to be defeated on the basis of
documents prepared after the Repeal Act, 1999 has come into force. The stand of
the Respondents that the dates shown in the documents are only clerical errors,
was rejected.
viii. The
inconsistencies and lacunae in the panchnama do not instil any confidence that
the same is genuine.
ix. There is no
signature of the landowner or any responsible officer or person on the
panchnama dated 08.02.2008.
12.
The respondents being dissatisfied with the judgment and order passed by the
learned Single Judge preferred two writ appeals i.e. Writ Appeal No. 665 of
2022 and Writ Appeal No. 670 of 2022 respectively.
13.
The Division Bench of the High Court allowed both the appeals filed by the
State and thereby set aside the judgment and order passed by the learned Single
Judge allowing the two writ petitions filed by the appellant herein. The
Division Bench held as under:-
17.2. Claim of the appellants that notice
under Section 10(5) was issued on 05.01.2008 was denied by the respondent.
05.01.2008 was a Saturday. It was the duty of the appellants to establish that
05.01.2008 was a working day and that notice dated 05.01.2008 was despatched
from the office on a working day. It is also the duty of the competent
authority to establish the exact date of service of notice under Section 10(5)
and service on the noticee were conspicuously absent in the counter affidavit.
Appellants merely stated that notice under Section 10(5) was issued on
05.01.2008. Since the respondent was under lockout, the notice was affixed on
the main door on 08.01.2008. In the absence of dispatch of notice by registered
post with acknowledgement due, the service would be deemed to be in violation
in terms of Rule 5 of the Urban Land (Ceiling and Regulation) Rules, 1976
(briefly, the ULC Rules hereinafter). That apart, it was reiterated that
there was no lockout in the establishment of the respondent at the relevant
point of time; rather it was fully operational for which respondent relied
upon various documentary evidence including returns filed before the Employees
State Insurance Corporation for the period from 01.10.2007 to 31.03.2008.
17.3. While denying
that notice under Section 10(5) was served on 08.01.2008 as claimed by the
appellants, it was averred that the thirty days period mentioned in the said
notice to surrender possession voluntarily would have expired only on
07.02.2008. Right of the competent authority to take further action under
Section 10(6) would accrue only after 08.02.2008. Therefore, no reliance could
be placed on the alleged order dated 05.02.2008 passed under Section
10(6) of the ULC Act. That apart, order dated 05.02.2008 containing more
than one date with overwriting did not inspire any confidence at all.
17.4. Further attempt
by the appellants to show that they had taken over possession of the excess
vacant land on 08.02.2008 by relying on the purported panchanama does not
inspire any confidence. It is contended that when the
order under Section 10(6) of the ULC Act dated 05.02.2008 was of
no legal consequence, the alleged taking over of possession on 08.02.2008 on
the strength of the order dated 05.02.2008 would also be of no consequence.
Besides, a bare perusal of the panchanama would reveal that it was prepared in
a printed format to suit the case of the appellants. A careful reading of the
panchanama itself would indicate that it was a fabricated document without
furnishing details of the three panchas, as a result of which the panchas were
not identifiable.
17.5. Appellants
claimed to have taken over possession of 46,538.43 square meters on 08.02.2008
which included 1000 square meters of land conferred on the respondent
under Section 4(1) of the ULC Act. This only goes to show that
appellants had not applied their mind and had just produced some documents to
show that they had taken over possession.
17.6. Respondents
name was shown as owner in possession and enjoyment of the lands including the
excess vacant land in the revenue record which only goes to show
possession of the respondent, besides pahanis stand in the name of the
respondent in respect of the subject land.
Therefore, the theory
of possession put forth by the appellants is contrary to the record.
18. Learned Single
Judge after narrating the relevant facts and after adverting to the submissions
made by learned counsel for the parties had examined various provisions of
the ULC Act, more particularly Sections 10(1), 10(3), 10(5) and 10(6) of
the ULC Act as well as the Repeal Act which was adopted by the Government of
undivided Andhra Pradesh on 27.03.2008 vide G.O.Ms.No.603 dated 22.04.2008.
Learned Single Judge examined the claim of the appellants of having taken over
possession of the subject land under Section 10(6) of the ULC Act as
well as the contents of the panchanama observed that whenever a panchanama is
prepared, the same has to be done duly putting the actual owner/interested
person on notice; panchas should be reputed and respectable persons of the
locality; date and time on which the panchanama was prepared as well as the
name, age and address of the panchas should be mentioned in the panchanama.
Thereafter, learned Single Judge held that unless and until actual physical
possession of the subject land was taken over, the taking over proceedings
under the ULC Act would stand abated on coming into force of the
Repeal Act. After referring to various decisions, learned Single Judge held
that after issuing notice under Sections 10(1) and 10(3) of
the ULC Act, competent authority under the said Act would have to issue notice
under Section 10(5) directing the party to surrender possession of the excess
land within a period of thirty days. If voluntary possession of the same is not
given, then the authorities are under obligation to issue notice under Section
10(6) and thereafter take possession.
Mere issuance of
notice under Section 10(3) would not automatically entitle the authorities to
take over possession of the notified lands; the authorities would have to
necessarily issue notice under Section 10(5) of the ULC Act to the
land owner or any other interested person. Taking over of possession has to be
actual physical possession and not mere de jure possession.
18.1. After referring
to the alleged anomalies noticeable in Section 10(6) notice, learned Single
Judge came to the conclusion that very admission on the part of the appellants
that the notice was served on 08.01.2008, where after Section 10(6) order was
passed on 05.02.2008 would clearly show that the mandatory period of thirty
days between the two provisions was not met. Learned Single Judge further noted
that there was no explanation forthcoming as to how the date 01.10.2008
appeared in the Section 10(6) notice. Thus, learned Single Judge vide the
judgment and order dated 03.01.2022 came to the conclusion that physical
possession of the subject land was still with the respondent.
There was no cogent
and convincing evidence to show that State Government had taken over physical
possession of the subject land. That apart, learned Single Judge found
that the panchanama dated 08.02.2008 did not inspire the confidence of the
Court. Further, from the documentary evidence, it was proved beyond any doubt
that the factory of the respondent was still functional, a number of apartments
had been constructed. Therefore, physical possession of the subject land had
not been taken over by the government but was still with the respondent.
Learned Single Judge
also referred to an order of this Court dated 26.10.2009 in writ petition
No.3140 of 2009, whereby government sought to resume the surplus land of the
respondent by issuing G.O.Ms.No.1534 dated 20.12.2008. In the said order, this
Court had set aside G.O.Ms.No.1534 holding that possession of the subject land
was not taken over by the government. Accordingly, both the writ petitions were
allowed and the panchanama dated 08.02.2008 was set aside.
19. Mr. Raju
Ramachandran, learned Senior Counsel for the appellants submits that learned
Single Judge was not at all justified in setting aside the panchanama
proceedings dated 08.02.2008 and interfering with the action of the State in
taking over possession of the surplus land of the respondent under the ULC
Act. In the course of his arguments, learned Senior Counsel for the appellants
has placed before the Court a flow chart of land belonging to the respondent
covered by the final statement made under Section 8(4) of the ULC
Act. He submits that respondent had declared under Section 6(1) of
the ULC Act a total of 1,63,679 square meters of land in Survey Nos.74/P, 75/P,
76, 78 and 79. Out of the aforesaid land, 5,088 square meters was covered by
GVM Road leaving land to the extent of 1,58,591 square meters. By
G.O.Ms.No.1729, an extent of land measuring 51,580 square was allowed to
be retained by the respondent to run the industry for manufacturing electrical
meters. Though an extent of land admeasuring 48,859.90 square meters was
allowed to be retained by the respondent for establishing fan factory, later on
the exemption was withdrawn vide G.O.Ms.No.303. Excluding 51,580 square
meters from the total extent of 1,58,591 square meters surplus excess land with
the respondent was quantified at 1,07,011 square meters. Out of this extent,
56,730.57 square meters in Survey Nos.74, 75 and 76 was exempted
under Section 21 of the ULC Act leaving balance extent of 50,280.43
square meters for computation under Section 8(4) of the ULC Act.
After excluding an extent of 3,742 square meters, which was affected by road,
the extent of surplus land quantified by the competent authority under
the ULC Act was estimated at 46,538.43 square meters as per revised
order of the competent authority dated 20.03.2007.
19.1. Because of
clerical mistakes, learned Single Judge ought not to have disbelieved the
notice issued under Section 10(5) of the ULC Act as well as the order
passed under Section 10(6) of the ULC Act, more so when learned
Single Judge did not requisition the record. While admitting that appearance of
the date 01.10.2008 in the order dated 05.02.2008 is inexplicable, Mr.
Raju Ramachandran, learned Senior Counsel for the appellants submits that
that by itself would not justify the conclusion reached by the learned Single
Judge that the aforesaid notice and order were antedated and thus discarded. He
submits that learned Single Judge was also not justified in disbelieving the
panchanama dated 08.02.2008 and thereafter declaring the notices under Section 10(5)
and 10(6) as well as the panchanama as void ab initio. He further submits that
learned Single Judge committed a manifest error in holding that physical
possession of the surplus vacant land had not been taken over by the
appellants.
x x x x
29.2. We have already
extracted the provisions of subsections (5) and (6) of Section 10 of
the ULC Act and made an analysis of the same. Section 10(5) contemplates
service of notice calling upon the person in possession of the excess vacant
land to surrender or deliver possession thereof to the State Government within
thirty days of service of notice. If he fails to do so then under
sub-section (6) of Section 10, the competent authority may take over possession
of the excess vacant land for which purpose such force as may be necessary may
be used. Though issuance and service of notice on the person in possession of
the excess vacant land under sub-section (5) of Section 10 is mandatory as held
by the Supreme Court in Hari Ram (supra) however, sub- section (6) of
Section 10 nowhere says that after the period of thirty days of service of
notice under Section 10(5), another order has to be passed or another notice
has to be given. Question of once again putting the parties on notice at the
stage of subsection (6) of Section 10 is not statutorily provided. Therefore,
learned Single Judge fell in error in taking the view that at the stage of
Section 10(6), the owner or person in possession of the excess vacant land has
to be again put on notice. There is no such legal requirement.
29.3. Insofar
preparation of panchanama is concerned, the same is not statutorily provided
either in the ULC Act or in the ULC Rules. Therefore, we fail to
understand as to how learned Single Judge came to the conclusion that while
preparing the panchanama the site map also needs to be prepared and both would
have to be attested not only by the panchas and the person preparing the same
but also by the land owner. We are afraid learned Single Judge fell in complete
error in coming to the aforesaid conclusion as there is no such statutory
prescription. The panchanama comes into the picture at the stage of Section
10(6) when the owner or person in possession of the excess vacant land fails to
comply with the notice under Section 10(5). Therefore, to expect such a person
to put his signature on the panchanama is wholly unrealistic.
29.4. In fact,
in Sita Ram Bhandar Society, New Delhi (supra) Supreme Court in the
context of the Land Acquisition Act, 1894, after referring to previous
judgments held that one of the accepted modes of taking over possession of the
acquired land is recording of a memorandum or panchanama by the land
acquisition officer in the presence of witnesses signed by them and that
would constitute taking possession of the land.
It is difficult to
take physical possession of the land under compulsory acquisition. The normal
mode of taking possession is drafting the panchanama in the presence of
panchas, taking possession and giving delivery to the beneficiaries which is
the accepted mode of taking possession of the land. While taking possession of
a large area of land, a pragmatic and realistic approach has to be taken. One
of the methods of taking possession and handing it over to the beneficiary
department is the recording of a panchanama which can in itself constitute
evidence of the fact that possession had been taken and that the land had
vested absolutely in the government.
29.5. This position
has been reiterated by the Supreme Court in Omprakash Verma (supra). This was a
case under the ULC Act. In the facts of that case, Supreme Court
reiterated that it is settled law that where possession is to be taken of a
large tract of land then it is permissible to take possession by a
properly executed panchanama.
30. Proceeding
further, we find that in paragraph 30 of the judgment and order, learned Single
Judge once again reiterated that after expiry of the period of thirty days as
contemplated under sub-section (5) of Section 10, if voluntary possession of
excess vacant land is not handed over then the authorities are obligated to
issue notice under Section 10(6) to the land owner and then take possession.
Having held so, learned Single Judge proceeded to frame the question as to
whether notifications issued under Section 10(5) and 10(6) by the authorities
and the panchanama would stand to legal scrutiny.
30.1. As already
discussed above, there is no statutory requirement under sub-section (6) of
Section 10 to once again put the defaulting owner or the person in possession
on notice. After the thirty days period following service of notice
under Section 10(5) of the ULC Act is over, it is open to the
authority to take over possession of the excess vacant land forcibly, if
necessary even by using force. Therefore, the very basis of the learned Single
Judge framing the above question does not stand to legal scrutiny, the same
being contrary to the legal requirement which has vitiated the impugned
judgment and order.
31. In paragraph 31 of
the judgment under appeal, learned Single Judge has mentioned that the notice
issued under Section 10(6) of the ULC Act has two dates in it i.e.,
05.02.2008 and 08.02.2008. As already mentioned above, there is no legal
requirement for passing any order or issuing further notice under Section
10(6) of the ULC Act. Therefore, the order dated 05.02.2008 at page 234 of
the paper book (W.A.No.670 of 2022) is really not material; in fact the same is
of no legal consequence.
Though below the date
05.02.2008, 08 is written, who has written it is not known. There is also no
initial by the side of the figure 08. But one thing is certain; there is no
date 08.02.2008, there being only one date i.e., 05.02.2008. However, what
is evident there from is that notice under Section 10(5) is dated
05.01.2008. If we contrast this notice at page 234 of the paper book with the
order (notice) dated 05.02.2008 at page 334 of the paper book (W.A.No.670 of
2022), there is no figure 08 below 05.02.2008. This is a signed order of the
special officer and competent authority which is missing at page 234.
Besides, this document is attested by the Special
Tahsildar, Urban Land Ceiling (Wing), Medchal Malkajgiri District. Be that as
it may, there is one date which has remained unexplained. As a matter of fact,
Mr. Raju Ramachandran, learned Senior Counsel for the appellants frankly told
the Court that it is inexplicable as to how the date 01.10.2008 appears in
the last paragraph of the order (notice) dated 05.02.2008. Appearance of this
date cannot be explained. The last paragraph of the order (notice) dated
05.02.2008 says that thirty days time given in the notice under Section 10(5)
expired on 01.10.2008. As seen from the aforesaid order (notice) itself,
notice under Section 10(5) is dated 05.01.2008. As such, there is no question
of expiry of thirty days period on 01.10.2008. In any case, the order or
notice dated 05.02.2008 does not have any legal sanction or even necessity as
Section 10(6) does not require issuance of a fresh order or a notice before
taking forcible possession.
Therefore, either the
order dated 05.02.2008 can be ignored or if taken at its face value, it does
not convey an irregularity or illegality of a magnitude which may render taking
over of forcible possession invalid.
X x x
35. This brings us as
to how learned Single Judge dealt with the panchanama dated 08.02.2008. Learned
Single Judge held as under:
34. xxx xxx xxx xxx
xxx The panchanama dated 08.02.2008, on which the independent witnesses are
stated to have affixed their signatures, relied by the official respondents to
substantiate that the officials went to the site and taken physical possession,
do not contain either the addresses of the panchas or their description
and do not instill any confidence in the Court that they are genuine. The
official respondents did not even bother to file affidavits of the so-called
panchas to show that they were present at the site and the panchanama was
prepared in their presence.
Admittedly, there is
no signature of the land owner on the alleged panchanama dated 08.02.2008 or
the site map annexed thereto. Even the description of the panchas or their
addresses or even their temporary addresses are not shown therein. In the
absence of the signatures of the land owner on the panchanama, the panchanama
and the site map will have to be considered as having been prepared behind the
back of the petitioner and in the office of the authorities. The documents
filed by the petitioner establish beyond any doubt that the factory is still
running, number of apartments are constructed in part of the land and that the
physical possession has not been taken over by the Government, as
contended, but the same is still with the petitioner Company. No affidavit of
any of the panchas has been filed to show that the authorities have physically
gone to the subject land and taken over the possession in the presence of the
owner. The entire exercise of affixing signatures and taking over the
possession of the land appears to have been done sitting in the office of the
authorities and only on paper.
35.1. According to the
learned Single Judge, the panchanama does not contain the addresses of the
panchas or their description. Affidavits of the panchas were not filed,
describing the panchas as so called panchas. Further, according to the learned
Single Judge, there was no signature of the land owner in the panchanama.
Therefore, such a panchanama would have to be considered having been prepared
behind the back of the respondent and in the office of the authorities.
35.2. We have already held that neither
the ULC Act nor the ULC Rules provide for the procedure for service
of notice under Section 10(5) of the ULC Act.
However, as discussed
above, it is judicially recognised that taking over of possession of large tracts
of land by way of panchanama is an acceptable mode. There is no requirement
under the statute for obtaining the signature of the land owner in the
panchanama or filing of affidavits by the panchas. Such finding of the learned
Single Judge in our considered opinion is not based on any materials on record.
36. Having said so, we
may examine the panchanama which is at pages 89 to 91 of the paper book
(W.A.No.670 of 2022). While page 89 is the Telugu and original version of the
panchanama, the translation copy thereof is at page 90 and page 91 contains the
site plan. A reading of the panchanama would go to show that the same was
prepared by the Deputy Tahsildar and Enquiry Officer in presence of three
panchas viz., 1) Ramayya, 2) Viswanadham and 3) Jagdish, whose addresses were
mentioned in the panchanama. Two persons by name Venkateshwar Rao and
Mallayya stood as witnesses. As per the panchanama, notice under Section 10(5)
dated 05.01.2008 was served upon the land owner. When possession was not handed
over to the Government even after expiry of the time limit, order was passed by
the competent authority on 05.02.2008 directing the Deputy Tahsildar and
Enquiry Officer to take over possession. Pursuant to such order, the Enquiry
Officer had taken over possession of the land to the extent of 46,538.43 square
meters on 08.02.2008 after identification and fixation of boundary by the
surveyor in presence of the panchas, who certified that the panchanama was
prepared in their presence.
37. As already
discussed above, there was no requirement of passing an order or issuing
further notice under Section 10(6) of the ULC Act.
Therefore, the order
or notice dated 05.02.2008 is of no legal consequence. But the fact remains
that according to the version of the appellants, Section 10(5) notice is
dated 05.01.2008 which was affixed at a conspicuous place of the premises
on 08.01.2008, whereafter possession was taken over on 08.02.2008 as per the
panchanama dated 08.02.2008. Therefore, there was no breach of the thirty days
period. To our mind, learned Single Judge committed a manifest error in
declaring the notice under Section 10(5) as well as the panchanama as void ab
initio and non est in the eye of law.
If the correctness or
genuineness of the same were disputed by the respondent, then it would be a
case of disputed and contentious facts. A proceeding under Article
226 of the Constitution of India is not the proper forum to adjudicate
such disputed and contentious facts. As pointed out by the Supreme Court in Bhaskar
Jyoti Sarma (supra), such seriously disputed questions of fact would not be
amenable to a satisfactory determination by the High Court in exercise of its
writ jurisdiction.
38. That being the
position, we have no hesitation in our mind that learned Single Judge had erred
on facts as well as in law in declaring the notice dated 05.01.2008
under Section 10(5) of the ULC Act as well as the panchanama dated
08.02.2008 being void ab initio and non est in the eye of law and thereafter in
setting aside the panchanama.
(Emphasis
supplied)
14.
Thus, what is discernable from the aforesaid discussion in the impugned
judgment is as under:-
i. Taking over of
possession of land by way of panchnama under the Act is an acceptable mode.
Consequently, the impugned judgment does not in any manner consider the effect
of Section 3(2) of the Repeal Act, 1999. The impugned judgment does not in any
manner deal with the judgments in Hari Ram (supra) and Gajanan Kamlya
Patil (supra); and
ii. The Division Bench
further said that there is no legal requirement under Section
10(6) of the Act, 1976 for passing any order or issuing any further notice
to the affected parties under Section 10(6) of the Act, 1976.
Therefore, in the present case, the Section 10(6) Order is of no legal
consequence. On this basis, the Division Bench en bloc rejected the issues
regarding the legality /validity of the Section 10(6) Order and the panchnama
thereafter.
It is relevant to note
at this stage that the impugned judgment does not in any way disturb the factual
findings recorded in the judgment of the learned Single Judge as regards the
factory very much in operation and also that the physical possession of the
land remains with the appellant.
15.
In such circumstances referred to above, the appellant is here before this
Court with the present two appeals.
SUBMISSIONS
ON BEHALF OF THE APPELLANT
16.
The written submissions of the appellant read as under:-
I. It is a statutory
mandate to issue an order under Section 10(6) after proper and effective service
of notice under Section 10(5) of the Act.
17.
The Impugned Judgment suffers from a patent error insofar as it holds that
there is no statutory requirement under Sections 10(5) and 10
(6) of the Act to issue or serve a notice to the affected/concerned
parties.
18.
On this erroneous premise, the impugned judgment has brushed aside all the
illegalities and/or statutory lacunae in the Section 10(5) Notice and the
Section 10(6) Order.
19.
It is trite law that the requirement of issuance of notice under Section 10(5)
and order under Section 10(6) of the Act is mandatory under law.
Refer to : Hari Ram (supra) and State of Telangana v. Southern
Steels Limited, W.A. 1975 of 2017.
20.
Significantly, the judgments in Hari Ram (supra) as well
as Southern Steel Limited (supra) were relied upon by the Appellants
before the Honble Division Bench. However, the impugned judgment while
coming at a diametrically opposite finding, fails to deal with the judgments in Hari
Ram (supra) and Southern Steel Limited (supra) in any manner
whatsoever.
21.
Before this Honble Court, the Respondent had sought to contend that this
settled legal position has been disturbed by the Honble Supreme Court
in State of Assam v. Bhaskar Jyoti Sarma, (2015) 5 SCC 321. The same is
not correct. The facts in Bhaskar Jyoti Sarma were completely different and the
same are not in any manner applicable in the case at hand. In Bhaskar Jyoti
Sharma, this Honble Court held that where possession is stated to have been
taken long ago and there is undue delay on the part of the landholder in
approaching the writ court, in such a case attraction of the prescribed
procedure for taking possession would not be a determining factor, inasmuch as
it can be taken that the persons for whose benefit the procedure existed have
waived his right there under.
In
that case, the original landowner sold the excess vacant land to six people
after a notification under Section 10(1) of the Act had been
published. In the first round of litigation, the purchasers questioned the
acquisition, and this came up to this Honble Court, wherein such challenge was
dismissed in 2002. Thereafter, in 2003, the excess vacant land was allotted to
Guwahati Metropolitan Development Authority and mutated accordingly. After
coming into effect of the Repeal Act in Gujarat in 2003, a writ was again filed
by the legal heirs of the original landowner. This was the second round of
litigation. Such challenge was also dismissed by this Honble Court, holding
that the original landowner had waived his right by not questioning the aspect
of possession under Section 10(5) of the Act, despite possession
having been taken as early as on 07.12.1991.
22.
In the present case, it is not even Respondents case nor is there any finding
to this effect in the impugned judgment that the Appellants have waived their
right in any manner whatsoever or have delayed in approaching the writ court.
In fact, in 2009, as soon as the attempts were made by the Respondents to
dispossess the Appellant from the Subject Land, the Appellant immediately
approached the writ court.
23.
Hence, the said finding in the impugned judgment regarding Sections
10(5) and 10 (6) of the Act is ex facie unsustainable in law.
II. The acquisition proceedings are de hors the Act, more
particularly Section 10 of the Act.
24.
The purported Section 10 Notices suffer from glaring illegalities. This clearly
reflects that the said purported Section 10 Notices are de hors the Act,
fictitious and non est in law.
25.
The purported Section 10 Notices were never contemporaneously served nor
received by the Appellant. The Appellant was made aware of the Section 10
Notices for the first time only on 14.09.2010. A bare perusal of the same would
demonstrate that the Section 10 Notices are not prepared contemporaneously.
26.
Such glaring illegalities at each stage of the said acquisition proceedings are
evident from the statements that follow:-
STAGE ILLEGALITIES /
LACUNAE
Purported a. The
Appellant never Notice received the Section 10(5) under Notice
contemporaneously. The Section Appellant was made aware of 10(5) of this notice
for the first time the Act on 14.09.2010.
b. In any event, the
Section 10(5) Notice is dated 05.01.2008. As per the Respondents, it was
affixed on the main gate on 08.01.2008 on the false pretext that there was a
lockout in the factory.
c. The Respondent has
miserably failed to establish that on the said date, there was a lockout in the
factory.
Even from a bare
perusal of the purported Section 10(5) Notice, it is clear that the same has
not been served on the Appellant in any manner whatsoever. There is no
signature on the said notice as to who has affixed the same, except a name
has been scribbled, which is not legible. The Respondents have also failed to
show that any attempt was made by them to carry out service of the Section
10(5) Notice by any other means in any manner whatsoever.
d. Even in the situation of lockout, it is implausible
that the Respondent authorities were not able to locate any personnel or
individual for the purported service of the Section 10(5) Notice.
e. It is well settled that affixing of notices,
as the Respondents suggest having done, should only be a last resort.
➢ The Government
of Tamil Nadu v. Nandagopal, 2011 (3) CTC 843 f. Therefore, it is clear
that the so-called stand regarding affixing of the Section 10(5) Notice on the
main door of the factory is concocted and nothing but a cock and bull story.
g. Moreover, such
stand of the Respondents themselves runs counter to their core contention that
the factory was not on the Subject Land.
Purported
a. The Appellant never
Order received the Section 10(6) under Order contemporaneously. The Section
Appellant was made aware of 10(6) of this order for the first time the Act on
14.09.2010.
b. There is no
reasonable or justifiable explanation for the two dates which are 05.02.2008
and 08.02.2008.
c. Pertinently, the Respondents were unable to
explain the date of 01.10.2008 which was
also mentioned in the Section 10(6) Order. Admittedly, there is no explanation
for the same.
d. Further, the
Section 10(6) Order states that the 30-day time given in the Section 10(5)
Notice expired on 01.10.2008, after the enforcement of the Repeal Act. This is
completely incomprehensible.
e. Moreover, the copy
of the Section 10(6) Order provided to the Appellant on 14.09.2010 and the copy
filed by the Respondents as part of the Compilation of Copies of Original
Record dated 23.02.2024, reveal further discrepancies in relation to execution
of the said order.
For instance, the date of 08.02.2008 is
missing from the said copy supplied to the Appellant as part of the Compilation
of Copies of Original Record and it only mentions the date [or date of
purported issuance] of 05.02.2008. These discrepancies clearly demonstrate
that the record of proceedings is tampered with and cannot be relied upon in
any manner whatsoever.
f. In any event, even
as per the Respondents, the Section 10(6) Order was issued on 05.02.2008 and
the Section 10(5) Notice was affixed on the wall on 08.01.2008.
g. Therefore, even as
per the Respondents, 30 days had not lapsed between the purported service of
the Section 10(5) Notice, i.e., 08.01.2008 and alleged issuance of the
Section 10(6) Order, i.e., 05.02.2008. It is mandatory to have a gap of 30 days
between a notice under Section 10(5) of the Act and an order
under Section 10(6) of the Act.
➢ The Principal Commissioner
v. M. Venkataraman, 2014 SCC OnLine Mad 4505;
➢ P. Laxmi Kantha Rao and
Others v. Government Of Andhra Pradesh, 2014 SCC OnLine Hyd h. The Ld.
Single Judge rightly held that the Section 10(6) Order is bad in law.
Panchnama a. The Appellant
never received this anchnama contemporaneously. The Appellant was made aware of
this purported Panchnama for the first time on 14.09.2010.
b. It is a printed form where gaps have been
filled up.
c. The purported
Panchnama lacks fundamental particulars of a Panchnama such as:
- The purported
Panchnama did not contain either the address or the description of panchas;
- No affidavit was
filed by the panchas to evidence that they were present at the site and the
Panchnama was prepared in their presence;
- There is no
signature of the landowner on the Panchnama; and
- The purported
Panchnama did not contain any site map or distinctive boundaries with
sub-divisions, whatsoever. It may be noted that the entire extent of 1,63,679
square meters is bound by one compound wall.
d. The Ld. Single Judge rightly held that the
purported Panchnama is bad in law.
27.
Crucially, the concocted and spurious nature of the Notices is evident from the
fact that such acts have been carried out by the Respondents against various
other entities/individuals in the same region wherein the Subject Land is
situated.
➢ J Sarada Govardhini v. Special
Officer and Competent Authority, Writ Petition No. 9680 of 2006
➢ Gonguluri Srinivasa Sharma and
Anr. v. Government of AP and Ors., Writ Petition No. 28883 of 2011.
28.
In light of the above, it is clear that the purported Section 10(5) Notice, Section
10(6) Order and the Panchnama are ex facie bad in law and de hors the
provisions of the Act. The same cannot be relied upon in any manner whatsoever.
In view thereof, the question of the Respondents having taken
over
possession of the Subject Land in any manner whatsoever does not arise.
29.
Hence, the so-called acquisition proceedings stand abated by virtue of Section
3 of the Repeal Act. II. In any event, the actual or physical possession of the
Subject Land has admittedly not been taken by the Respondents and consequently,
the said acquisition is hit by the Repeal Act.
30.
It is an admitted position that physical or actual possession of the Subject
Land has not been taken over by the State Government at any point in time. Even
as per the Respondents, they have only taken symbolic/paper possession by way
of the Panchnama.
31.
It is also an admitted position that the mandatory 30-day period between the
alleged issuance of the Section 10(5) Notice and purported issuance of the
Section 10(6) Order had not lapsed.
32.
It is admitted by the Respondents that the Appellant is still running a factory
over the Subject Land. Further, it is also admitted that number of apartments
are constructed on a part of the Subject Land. Most significantly, it has been admitted
that physical possession of the Subject Land has not been taken over by the
Respondents.
33.
In fact, the Ld. Single Judge, after consideration of the documents on record,
has categorically held that the Appellants have established that the factory is
still running on the Subject Land and a number of multi-storied residential
buildings have also been constructed therein. It has also been held that the
entire land is encompassed by a boundary wall and the gate is manned by
security guard. Resultantly, it has been conclusively held that the actual
physical possession of the Subject Land is still with the Appellant and has not
been taken over by the Respondents.
34.
Hence, admittedly, the actual physical possession of the Subject Land has not
been taken over by the Respondents and the same is with the Appellant.
35.
Significantly, Section 3(1)(a) of the Repeal Act provides that restoration of
land to the Government shall not take place if possession was not taken
over by the Government prior to coming into force of the Repeal Act.
36.
In relation to the term possession under Section 3 of the Repeal Act, courts
have consistently held that possession therein means actual physical
possession or de facto possession and not mere paper or de jure possession. In
this regard, reliance is placed upon the following judgments:
➢ Vinayak Kashinath Shilkar
v. Deputy Collector and Competent Authority and Ors., (2012) 4 SCC 718
➢ Gajanan Kamlya Patil v.
Additional Collector and Competent Authority (ULC) and Ors. (supra)
➢ State of Gujarat v.
Kamuben, 2019 SCC OnLine Guj 4941
➢ Dip Co. Op. Hsg. Society
Ltd. through Purshottam S. Patel v. State of Gujarat and Others, 2020 SCC
OnLine Guj 693
➢ Dip Co. Op. Hsg. Society Ltd.
through Purshottam S. Patel v. State of Gujarat and Others, 2024 SCC OnLine Guj
3034
37.
It is important to note that impugned judgment errs in not adopting the settled
legal position under the Act. On the contrary, the impugned judgment has
wrongly applied the legal position under the Land Acquisition Act, to the
acquisition proceedings concerned in relation to the Subject Land. The legal
position under the Land Acquisition Act, 1894, or the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 (Land Acquisition Acts), regarding the effect of
repeal of a statute vis-à-vis possession is wholly inapplicable to acquisition
under the Act, i.e., the Urban Land (Ceiling and Reform) Act, 1976. This
is another fundamental fallacy in the impugned judgment. In fact, reliance
placed by the Respondents on judgments in relation to the Land Acquisition Acts
is a complete red herring and is absolutely misplaced in the present case
38.
Therefore, in the present case, as admittedly the actual or physical possession
of the Subject Land is not taken by the State Government, the acquisition
proceedings stand abated. The impugned judgment deserves to be set aside on
this ground alone.
39.
In light of the above, it is submitted that the instant acquisition proceedings
are hit by Section 3 of the Repeal Act. Accordingly, the acquisition
proceedings in relation to the Subject Land ought to stand abated.
SUBMISSIONS ON BEHALF
OF THE RESPONDENTS
17. The written
submissions filed on behalf of the State read thus:-
Writ Proceedings
before the Honble High Court Appellant did not challenge Notice u/s 10(5) or
order passed u/s 10(6) of the ULC Act 10. The Appellant filed W.P.
11293/2009 challenging the Respondents alleged interference with the
possession and enjoyment of Petitioner w.r.t. 30181.10 sq. yds. in survey
no. 76. The Appellant also filed W.P. 23477/2010 challenging the panchnama
proceedings dated 08.02.2008 taking over possession of 46,538 sq. mts. land in
survey nos. 74 to 76.
11. Admittedly, the
challenge before the Honble High Court in the writ proceedings was with
regards to the taking over of possession of the Subject Vacant Land by
execution of panchnama. The Appellant did not seek the relief for quashing of
notice under Section 10(5) or order passed under Section 10(6) of the
ULC Act.
12. The Ld. Single
Judge passed a combined order dated 03.01.2022. The Respondents filed W.A.
665/2022 and W.A. 670/2022 before the Division Bench of the High Court. The
Division Bench of the High Court passed the Impugned Judgment on 14.02.2023.
Submissions:
13. Physical
possession of the Subject Land was validly taken over by the Respondent in
accordance with the ULC Act before the Repeal Act. The Appellant has
alleged that there were some discrepancies / illegalities in the process
adopted under Section 10(5) and 10(6) of the ULC Act. Each
of the alleged illegalities is dealt as under:
I. Issuance of Notice
and Service thereof was in accordance with Section 10(5)
14. The Appellant has
alleged that the notice dated 05.01.2008 issued under Section 10(5) is illegal
on the ground that the said notice was not received by the Appellant who was
made aware of the said notice only on 14.09.2010, and it was merely affixed on
the main gate of the Existing Factory on 08.01.2008 without any service through
registered post.
15. In this regard, it is submitted that:-
a) The notice
under Section 10(5) of the ULC Act is dated 05.01.2008, calling upon
the Appellant to surrender the Subject Vacant Land.
b) The said notice was
served upon the Appellant by way of affixation on the main gate of the Existing
Factory on 08.01.2008.
The Existing Factory
was locked / closed on the said date. Since there was no other means to effect
service upon the Appellant, the said notice was affixed on the main door of the
Existing Factory, belonging to the Appellant, which is adjacent to the Subject
Vacant Land. It is submitted that such affixation of notice is deemed service
upon the Appellant.
c) Furthermore, the
Subject Vacant Land being a large tract of vacant land in the present case,
service of the notice by affixing it on the door of the Existing Factory
belonging to the Appellant is a valid mode of service. In the absence of any
rule or prescribed procedure for service of the notice, it was served by
affixation.
d) It is submitted
that Rule 5 and 6 of the Urban Land (Ceiling and Regulation) Rules, 1976 recognize
affixation as a valid mode of service.
e) In any case, the
Appellant was very well aware of the proceedings under ULC Act. In fact,
the Appellant had also challenged the order dated 03.04.2005 passed by the
Special Officer and Competent Authority under Section 8(4) of the ULC
Act before the Appellate Authority.
16. Despite being well
aware of the proceedings under ULC Act, the Appellant has mischievously
denied service of notice under Section 10(5), due to the fortuitous
circumstance of the Repeal Act w.e.f. 27.03.2008, thereby, tempting the
Appellant to raise the issue of service under Section 10(5).
II. Order under
Section 10(6) dated 05.02.2008 to take possession was lawful
17. The Appellant has
challenged the order dated 05.02.2008 under Section 10(6) on the ground that
the said order was not received by the Appellant it came to knowledge of the
Appellant on 14.09.2010. The Appellant has further pointed out certain alleged
discrepancies such as the mentioning of the date 01.10.2008 in the said order
and non- mentioning of the date 08.02.2008. Alternatively, the Appellant has
suggested that the order dated 05.02.2008 was issued prior to the expiry of the
30 days period from the date of service of the notice under Section 10(5) on
08.01.2008 when the said notice was affixed on the main gate of the Existing
Factory.
18. It is submitted that the Order under Section
10(6) is legal:
(a) There is no
statutory requirement to send another notice under Section 10(6) after the
expiry of 30 days from the date of service of notice under Section 10 (5).
(b) As such, the order
dated 05.02.2008, is immaterial and thus, the alleged discrepancies, if any,
are of no relevance and cannot have any legal consequence.
(c) The internal
notings in a departmental file do not have the sanction of law to be an
effective order. It is for internal use and consideration of the other
officials of the department and for the benefit of final decision making. These
notings are not meant for outside exposure. It is possible that after
expressing of an opinion on a particular matter by one officer, another officer
may express a different opinion.
Reliance is placed
upon Bachhittar Singh v. State of Punjab AIR 1963 SC 395 relevant para at
10; Sethi Auto Service Station and Another v. Delhi Development Authority
and Others (2009) 1 SCC 180 relevant para at 14, 15, 16 and 17; Jasbir
Singh Chhabara and Others v. State of Punjab and Others, (2010) 4 SCC 192
relevant para at 35; State of Uttaranchal and Another v. Sunil Kumar Vaish
and Others, (2011) 8 SCC 670 relevant para at 24; Pimpri Chinchwad New
Township Development Authority v. Vishnudev Cooperative Housing Society and
Others, (2018) 8 SCC 215 relevant para at 35 and 36.
(d) Without prejudice,
the internal notings which culminated into the order dated 05.02.2008 under
Section 10(6) does not have any discrepancy. It is submitted that the
mentioning of date 01.08.2008 is immaterial and has no legal consequence.
(e) The order under
Section 10(6) is dated 05.02.2008 but was issued on 08.02.2008 when the
panchnama was executed and possession was as such taken over only after the
competition of 30 days from the date of service of notice on 08.01.2008.
19. Appellants
challenge to order under Section 10(6) is irrelevant and baseless. It is a
desperate attempt of the Appellant to take disadvantage of the alleged
discrepancy, if any, in the internal notings made by the officials of the State
Government, so as to illegally hold the excess vacant land admeasuring
46,538.43 sq. mts. despite its failure to comply with the condition of
constructing the Proposed Fan Factory.
III. Panchnama dated
08.02.2008 is a valid mode of taking possession
20. The Appellant has
suggested that it became aware of the panchnama issued on 08.02.2008, only on
14.09.2010. Even otherwise, it is alleged the said panchnama is defective since
it does not contain the addresses or description of the panchas, or signatures
of the landowner, site map, and further there is no affidavit on record by the
panchas to evidence that they were present at the site and panchnama was
prepared in their presence.
21. Upon failure of
the Appellant to comply with the notice under Section 10(5) of the
ULC Act, the Respondents were compelled to take over the possession of Subject
Vacant Land by recording of panchnama. The aforesaid allegations of the
Appellant are incorrect and baseless. It is submitted that:
(a) Panchnama was
legally prepared by the Deputy Tahsildar and Enquiry Officer in the presence of
three panchas, namely, (i) Ramayya, (ii) Viswanadham and (iii) Jagdish, whose
addresses are mentioned in the panchnama.
(b) Two persons stood
as witnesses Venkateshwar Rao and Mallaya.
(c) Panchnama records
that the notice under Section 10(5) was served upon the Landowner.
(d) Pursuant to the
expiry of 30 days from the date of service of the notice under Section 10(5) on
08.01.2008, the enquiry officer took over possession of the Subject Vacant Land
after identification and fixation of boundary by the surveyor in the presence
of panchas, who certified that the panchnama was prepared in their presence.
(e) There is no
requirement of preparation of a site map along with the panchnama in the
absence of any statutory provision or judicial precedent. The Appellant has
failed to establish that the panchnama was not prepared as per the mandate.
(f) The suggestion of
signature of landowner on the panchnama is also without any substance in the
absence of any statutory mandate and furthermore, it is unpragmatic to expect
from a landowner who is not willing handing over possession of the excess
vacant land to sign on the panchnama.
22. It is a settled
principle of law that possession of a land can be taken over by execution of a
proper panchnama or memorandum. Panchnama is evidence in itself that possession
has been taken over and land vests in the government absolutely. In this
regard, reliance is placed upon para 30 in the judgment of Sita Ram
Bhandari Society, New Delhi v. Lieutenant Governor of NCT of Delhi (2009)
10 SCC 501: It is also clear that one of the methods of taking possession
and handing it over to the beneficiary Department is the recording of a
panchnama which can in itself constitute evidence of the fact that possession
had been taken and the land had vested absolutely in the Government...
23. In Omprakash
Verma v. State of A.P. (2010) 13 SCC 158, the same position of law was
reiterated, in the context of ULC Act, in Para 85, and it was held: It is
settled law that where possession is to be taken of a large tract of land then
it is permissible to take possession by a properly executed panchnama
24. Reliance is also
placed upon Balmokand Khati Educational and Industrial Trust v. State of
Punjab (1996) 4 SCC 212 and Para 9 of Tamil Nadu Housing Board v. A.
Viswan (1996) 8 SCC 259.
25. In view of
the above settled position of law, the Division Bench of the High Court rightly
relies upon Sita Ram (supra) as well as upon Omprakash
Verma (supra) to hold that while taking possession of a large area of land,
a pragmatic and realistic approach has to be taken and one of the methods of
taking possession and handing it over to the beneficiary department is the
recording of panchnama which constitutes evidence of the fact that the
possession has been taken and land vests absolutely with the government.
26. Furthermore, it is
submitted that Appellant cannot belatedly contend that Section
10(5) of the ULC Act, has been breached. A bare perusal of the relief
sought by the Appellant in W.P. 23477/2010 filed before the Honble High Court
shows that the challenge was only to the taking over of possession by way of
panchnama dated 05.02.2008. Reliance in this regard is placed upon State
of Assam v. Bhaskar Jyoti Sharma (2015) 5 SCC 321 [Para 14 to 17] wherein
it is held that in the event of belated challenge to notice under Section
10(5), the landowner is presumed to have waived his right under Section
10(5) of the Act.
27. Thus, the
panchnama having been validly executed and in terms of the
settled position of law, the Respondent has taken over valid and legal
possession of the Subject Vacant Land in terms of Section 10(5) and (6) of
the ULC Act. It is further submitted that while service of notice is
mandatory under Section 10(5) in terms of the judgment in Hari
Ram (supra), there is no requirement of service of notice under Section
10(6).
28. It is reiterated
that the present case concerns a huge tract of land admeasuring 46,538.43 sq.
mts. i.e., the Subject Vacant Land, wherein the Appellant was granted exemption
for an area admeasuring 48,859.90 sq. mts under Section 20 (1) (a) subject to
the condition of construction of a Proposed Fan Factory, and it was only due to
the failure of the Appellant to comply with the said condition that the
exemption was later withdrawn by the State Government.
29. In view of the
above, it is submitted that the possession of the Subject Vacant Land has been
validly taken by the Respondents by issuing of notice and service thereof under
Section 10(5) and possession was validly taken over in compliance
with Section 10(6) of the ULC Act prior to the coming into force of
the Repeal Act, and thus, the Appeal deserves to be dismissed with heavy
costs. ANALYSIS
18. Having heard the
learned counsel appearing for the parties and having gone through the materials
on record, the only question that falls for our consideration is whether the
Division Bench of the High Court committed any error in upsetting the findings
recorded by the learned Single Judge.
19. Before adverting
to the rival submissions canvassed on either side, we must look into few relevant
provisions of the Repeal Act, 1999 which read as under:-
Section
3. Savings (1) The repeal of the principal Act shall not affect
(a) the vesting of any
vacant land under sub-section (3) of Section 10, possession of which has been
taken over by the State Government or any person duly authorised by the
State Government in this behalf or by the
competent authority;
(b) the validity of
any order granting exemption under sub- section (1) of Section 20 or any action
taken thereunder, notwithstanding any judgment or any Court to the contrary;
(c) any payment made
to the State Government as a condition for granting exemption under sub-
section (1) of Section 20.
(2) Where
(a) any land is deemed
to have vested in the State Government under sub-section (3) of Section 10 of
the Principal Act but possession of which has not been taken over by the State
Government or any person duly authorised by the State Government in this behalf
or by the competent authority; and
(b) any amount has
been paid by the State Government with respect to such land, then such land
shall not be restored unless the amount paid, if any, has been refunded to the
State Government.
Section 4. Abatement
of legal proceedings:All proceedings relating to any order made or purported
to be made under the principal Act pending immediately before the commencement
of this Act, before any Court, Tribunal or any authority shall abate;
Provided that this section shall not apply to
the proceedings relating to Sections 11, 12, 13 and 14 of the principal
Act insofar as such proceedings are relatable to the land, possession of which
has been taken over by the State Government or any person duly authorised by
the State Government in this behalf or by the competent authority.
20. Thus, by virtue of
the provisions of Section 3 of the Repeal Act, 1999, if possession of vacant
land has been taken over on behalf of the State Government before the coming
into force of the Repeal Act, 1999, the repeal of the Principal Act would not
affect the vesting of such land under sub-section (3) of Section
10 of Act, 1976. Hence, the issue as to whether actual possession of land
declared excess under the Act has been taken over or not assumes great
significance after the coming into force of the Repeal Act, 1999 inasmuch as if
possession has not been taken over, the proceedings would abate under Section 4
of the Repeal Act, 1999 and the ownership of the land, if vested in the State
Government under Section 10(3) of the Act, 1976 would be required to
be restored to the original land-holder subject to repayment of any amount that
has been paid by the State Government with respect to such land.
21. Sub-sections (5)
and (6) of Section 10 of the Act, 1976 respectively which are
relevant for the purpose of deciding the present Appeals read 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 of 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.
22. On a plain reading
of the aforesaid provisions, it is apparent that the statute contemplates
giving an opportunity to the landholder or any person in possession of excess
vacant land to surrender or deliver possession thereof to the State Government
and for this purpose provides for giving notice in writing, ordering such
person to surrender or deliver possession of such land. It is only when pursuant
to such notice, such person refuses or fails to comply with an order under
sub-section (5) within a period of thirty days of the service of notice, that
the competent authority is required to take over possession of the vacant land
and for that purpose may use force, if necessary. Therefore, the provisions of
sub-section (6) are to be resorted to only when there is refusal or
non-compliance of an order under sub-section (5) of Section 10 of the
Act, 1976 within the prescribed period.
23. In State
of Maharashtra v. B.E. Billimoria, (2003) 7 SCC 336, this Court in the context
of the Act, 1976 held that the said Act being an expropriatory legislation
should be construed strictly.
24. This Court in the
case of Bhavnagar University v. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC
111, in the context of the Gujarat Town Planning and Urban Development
Act, 1976 held thus:-
The statutory
interdict of use and enjoyment of the property must be strictly construed. It
is well settled that when a statutory authority is required to do a thing in a
particular manner, the same must be done in that manner or not at all. The
state and other authorities while acting under the said Act are only creature
of statute. They must act within the four corners thereof.
(Emphasis
supplied)
25. Thus, applying the
principle of strict construction as explained in the aforesaid two decisions,
the authorities are required to act strictly in accordance with
the statutory provisions. Thus, when sub-section (5) of Section 10 mandates
giving notice of an order under the said sub-section to the person in
possession, the same is required to be complied with in its true letter and
spirit. Considering the nature of rights involved, mere issuance of notice
without service thereof, cannot be said to be due compliance with the
provisions of the statute. Besides, the provisions of sub- section (6) of
Section 10 can be resorted to only if the person fails to comply with an order
under sub-section (5) thereof, within a period of thirty days of service of
notice. Hence, possession cannot be taken over under Section 10(6) of
the Act, 1976 unless a period of thirty days from the date of service of notice
has elapsed. In absence of service of notice under sub-section (5) of Section 10,
there will be no starting point for calculating the period of thirty days. In
other words, time will not start running, hence the question of taking over
possession under sub-section (6) of Section 10 of the Act, 1976 will
not arise at all. In this view of the matter, in the case on hand, it was
not open to the respondent authorities to resort to the provisions of
sub-section (6) of Section 10 of the Act, 1976 without first strictly
complying with the provisions of sub-section (5) thereof. Hence, such action
being in contravention of the statutory provisions cannot be sustained and
deserves to be struck down.
26. The case
of Hari Ram (supra) needs to be looked into. In the said case, this
Court dealt with the very same issue i.e. deemed vesting of the surplus land under Section
10(3) of the Act, 1976. The matter was from Allahabad. This Court
explained the concept of voluntary surrender, peaceful dispossession and
forceful dispossession. We may quote the relevant observations:-
18. The legislature
is competent to create a legal fiction, for the purpose of assuming existence
of a fact which does not really exist. Sub-section (3) of Section 10 contained
two deeming provisions such as deemed to have been acquired and deemed to
have been vested absolutely. Let us first examine the legal consequences of
a deeming provision. In interpreting the provision creating a legal
fiction, the court is to ascertain for what purpose the fiction is created and
after ascertaining this, the court is to assume all those facts and consequences
which are incidental or inevitable corollaries to the giving effect to the
fiction. This Court in Delhi Cloth and General Mills Co. Ltd. v. State of
Rajasthan [(1996) 2 SCC 449] held that what can be deemed to exist under a
legal fiction are facts and not legal consequences which do not flow from the
law as it stands.
19. James, L.J. in
Levy, In re, ex p Walton [(1881) 17 Ch D 746 : (1881- 85) All ER Rep 548 (CA)]
speaks on deeming fiction as: (Ch D p. 756)
When a statute enacts that
something shall be deemed to have been done, which in fact and in truth was not
done, the court is entitled and bound to ascertain for what purposes and
between what persons the statutory fiction is to be resorted to.
20. In Szoma v. Secy.
of State for Work and Pensions [(2006) 1 AC 564 : (2005) 3 WLR 955 : (2006) 1
All ER 1 (HL)] the Court held: (AC p. 574, para 25)
25.
it would
be
quite wrong to carry this fiction beyond its originally intended purpose so as
to deem a person in fact lawfully here not to be here at all. The intention of
a deeming provision, in laying down a hypothesis, is that the hypothesis shall
be carried as far as necessary to achieve the legislative purpose, but no
further
. (See also DEG Deutsche Investitions und Entwicklungsgesellschaft
mbH v. Koshy [(2001) 3 All ER 878(CA)].)
21. Let us test the
meaning of the expressions deemed to have been acquired and deemed to have
been vested absolutely in the above legal settings. The expressions acquired
and vested are not defined under the Act. Each word, phrase or sentence that
we get in a statutory provision, if not defined in the Act, then is to be
construed in the light of the general purpose of the Act. As held by this Court
in Organo Chemical Industries v. Union of India [(1979) 4 SCC 573 :
1980 SCC (L&S) 92] that a bare mechanical interpretation of the words and
application of a legislative intent devoid of concept of purpose will reduce
most of the remedial and beneficial legislation to futility.
Reference may also be
made to the judgment of this Court in Directorate of Enforcement v. Deepak
Mahajan [(1994) 3 SCC 440 : 1994 SCC (Cri) 785]. Words and phrases,
therefore, occurring in the statute are to be taken not in an isolated or detached
manner, they are associated on the context but are read together and construed
in the light of the purpose and object of the Act.
22. This Court
in S. Gopal Reddy v. State of A.P. [(1996) 4 SCC 596 :1996 SCC (Cri)
792] held: (SCC p. 607, para 12) 12. It is a well-known rule of interpretation
of statutes that the text and the context of the entire Act must be looked into
while interpreting any of the expressions used in a statute. The courts must
look to the object which the statute seeks to achieve while interpreting any of
the provisions of the Act. A purposive approach for interpreting the Act is
necessary.
23. In Jugalkishore
Saraf v. Raw Cotton Co. Ltd. [AIR 1955 SC 376] , S.R. Das, J. stated: (AIR
p. 381, para 6)
6.
The cardinal
rule of construction of statutes is to read the statute literally, that is by
giving to the words used by the legislature their ordinary, natural and
grammatical meaning. If, however, such a reading leads to absurdity and the
words are susceptible of another meaning the court may adopt the same. But if
no such alternative construction is possible, the court must adopt the ordinary
rule of literal interpretation.
24. The expression
deemed to have been acquired used as a deeming fiction under sub-section (3)
of Section 10 can only mean acquisition of title or acquisition of interests
because till that time the land may be either in the ownership of the person
who held that vacant land or to possess such land as owner or as a tenant or as
mortgagee and so on as defined under Section 2(1) of the Act. The
word vested has not been defined in the Act, so also the word absolutely.
What is vested absolutely is only the land which is deemed to have acquired and
nothing more. The word vest has different meaning in different context;
especially when we examine the meaning of vesting on the basis of a statutory
hypothesis of a deeming provision which Lord Hoffmann in Customs and
Excise Commissioners v. Zielinski Baker and Partners Ltd. [(2004) 1 WLR
707 : (2004) 2 All ER 141 (HL)] , All ER at para 11 described as heroic piece
of deeming.
25. The word vest or
vesting has different meanings. Legal Glossary, published by the Official
Language (Legislative) Commission, 1970 Edn. at p. 302:
Vest.(1) To give a
person a legally fixed, immediate right or personal or future enjoyment of (an
estate), to grant, endow, clothe with a particular authority, right of
property, (2) To become legally vested; (TP Act) Vesting order.An order
under statutory authority whereby property is transferred to and vested,
without conveyance in some person or persons;
26.Black's Law
Dictionary (6th Edn.), 1990 at p. 1563: Vested.Fixed;accrued; settled;
absolute; complete.
Having the character
or given the rights of absolute ownership; not contingent; not subject to
be defeated by a condition precedent. Rights are vested when right to
enjoyment present or prospective, has become property of some particular person
or persons as present interest; mere expectancy of future benefits, or
contingent interest in property founded on anticipated continuance of existing
laws, does not continue vested right. Vaughn v. Nadel [228 Kan 469 : 618 P 2d
778 (1980)] . See also Accrue; Vest, and specific types of vested interests,
infra.
27.Webster's Third New
International Dictionary, of the English Language unabridged, Vol. III S to Z
at p. 2547 defines the word vest as follows:
vest vest
To
place or give into the possession or discretion of some person or authority
[the regulation of the waterways
to give to a person a legally fixed
immediate right of present or future enjoyment of (as an estate) (a deed that
vests a title estate in the grantee and a remainder in his children)
(b) to grant, endow,
or clothe with a particular authority right or property
to put (a person) in
possession of land by the feudal ceremony of investiture
to become
legally vested (normally) title to real property vests in the holder of a
property executed deed.]
28. Vest/vested,
therefore, may or may not include transfer of possession, the meaning of
which depends on the context in which it has been placed and the interpretation
of various other related provisions.
29. What is deemed
vesting absolutely is that what is deemed to have acquired. In our view, there
must be express words of utmost clarity to persuade a court to hold that the
legislature intended to divest possession also, since the owners or holders of
the vacant land are pitted against a statutory hypothesis. Possession, there is
an adage is nine points of the law. In Beddall v. Maitland [(1881) 17 Ch D
174 : (1881-85) All ER Rep Ext 1812] Sir Edward Fry, while speaking of a
statute which makes a forcible entry an indictable offence, stated as follows:
(Ch D p.
188)
This statute
creates one of the great differences which exist in our law between the being
in possession and the being out of possession of land, and which gave rise to
the old saying that possession is nine
points of the law. The effect of the statute is this, that when a man is in
possession he may use force to keep out a trespasser; but, if a trespasser has
gained possession, the rightful owner cannot use force to put him out, but must
appeal to the law for assistance.
30. Vacant land, it
may be noted, is not actually acquired but deemed to have been acquired, in
that deeming things to be what they are not. Acquisition, therefore, does not
take possession unless there is an indication to the contrary. It is trite law
that in construing a deeming provision, it is necessary to bear in mind the
legislative purpose. The purpose of the Act is to impose ceiling on vacant
land, for the acquisition of land in excess of the ceiling limit thereby to
regulate construction on such lands, to prevent concentration of urban lands in
the hands of a few persons, so as to bring about equitable distribution. For
achieving that object, various procedures have to be followed for acquisition
and vesting. When we look at those words in the above setting and the
provisions to follow such as sub-sections (5) and (6) of Section 10, the words
acquired and vested have different meaning and content. Under Section
10(3), what is vested is de jure possession not de facto, for more reasons than
one because we are testing the expression on a statutory hypothesis and such an
hypothesis can be carried only to the extent necessary to achieve the
legislative intent.
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 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 subsection (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 subsection
(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 subsection (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 subsection (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.
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, forceas may be necessarycan 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 subsections (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. "
27.
In the very same judgment, the effect of the Repeal Act, 1999 has also been
discussed. Paragraphs 41 and 42 respectively read as under:-
"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 subsection (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."
(Emphasis
supplied)
28.
A close reading of the above judgment more particularly the dictum laid therein
lays down that though Section 10(3) of the Urban Land (Ceiling and Regulation)
Act, 1978 (Central Act), which is pari-materia to Section 11(3) of
the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 (Ceiling Act),
provides that the vacant land is deemed to be acquired, yet it does not mean
that the possession of the land has been taken over. This Court has
categorically stated that the procedure contained under sub-sections (5) and
(6) of the Act, 1976 must be scrupulously followed. This Court was of the view
that Section 10(5) of the Act, 1976 which is pari-materia to Section 11(5) of
the Ceiling Act stipulates that any vacant land even if vested in the State
under sub-section (3),the competent authority has to by notice in writing order
any person who may be in possession of it to surrender or deliver possession of
the land to the State Government within thirty days of the service of notice.
If the landowner fails or refuses to do so, then the State Government has to
follow the procedure under sub-section (6) of Section 10 or Section 11 as the
case may be, and take forcible possession.
29.
Thus, the dictum, as laid in Hari Ram (supra), is that where the
possession of the subject land has not been taken over by the State Government
or by any person duly authorised by the State Government in this behalf or by
the competent authority, the proceedings under the Act would not survive and
mere vesting of the vacant land with the State Government by operation of law,
without actual possession, is not sufficient. To put it in other words, the
mere paper possession would not save the situation for the State Government
unless the State is able to establish by cogent evidence that actual physical
possession of the entire land was taken over by evicting each and every person
from the land. The onus is on the State to establish that actual physical
possession of the excess vacant land was taken over before the repeal.
30.
The proposition of law that mere paper possession is not sufficient to vest the
land in the State has been explained by this Court in Raghbir Singh
Sehrawat v. State of Haryana,,2012 AIR SCW 240. This was a case under
the Land Acquisition Act, 1894. This Court, while allowing the appeals and
declaring the acquisition illegal, observed that the taking of possession means
the actual possession. Paper possession is not sufficient to vest the land in
the State. This Court noticed various revenue entries recorded in the revenue
records which showed that the crops were grown on the different acquired land
said to have been taken over. The Court noticed that the State had not
questioned the genuineness and correctness of the entries contained in the
revenue records. This Court also took notice of the fact that it was neither
pleaded nor any evidence had been produced before the Court to show that the
occupant of the land had unauthorisedly taken possession of the land after its
acquisition.
31.
The decision rendered in the case of Hari Ram (supra) has been
followed by this Court in the case of in Vipin Chandra Vadilal Bavishi v.
State of Gujarat, reported in (2016) 4 SCC 531. The relevant paragraphs of the
judgment read as under:-
23. A similar question
came up for consideration before this Court in the case of State of U.P.
v. Hari Ram reported in (2013) 4 SCC 280. In this case, a question arose
as to whether the deemed vesting of surplus land under Section
10(3) of the Act would amount to taking de facto possession depriving the
landholders of the benefit of the saving clause under Section 4 of
the Urban Land (Ceiling and Regulation) Repeal Act, 1999. After examining in detailed
provisions of the Ceiling Act as also the Repeal Act, the Court observed:-
35. If de facto
possession has already passed on to the State Government by the two deeming
provisions under subsection (3) of Section 10, there is no necessity of using
the expression where any land is vested under subsection (5) of Section 10.
Surrendering or transfer of possession under subsection (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.
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 subsection (5), the
competent authority may take possession of the vacant land to be given to the
State Government and for that purpose, forceas may be necessarycan 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 subsection (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 subsection (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.
24. The Bench further considered the effect of
Repeal Act and held that:-
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 to
get the benefit of Section 4 of the Repeal Act. However, there
will be no order as to costs.
25. The submission of
Mr. Kapoor, learned counsel appearing for the respondent- State, that
mentioning of Plot Nos. 1 to 16 in the Notification issued under Sections
10(1), 10(3) and 10(5) is a clerical mistake which can be corrected by issuing
a corrigendum, is absolutely not tenable in law. How Plot Nos. 1 to in
those Notifications by issuing a hand- written corrigendum which was not even
finally approved by the authorities after 1976 Act stood repealed.
26. An arithmetical
mistake is a mistake in calculation, while a clerical mistake is a mistake of
writing or typing error occurring due to accidental slip or omissions or error
due to careless mistake or omission. In our considered opinion, substituting
different lands in place of the lands which have been notified by a statutory
Notification under Section 10(1), 10(3) and 10(5) cannot and shall not be done
by issuing a corrigendum unless the mandatory requirements contained in the
aforementioned sections is complied with. A land holder cannot be divested from
his land on the plea of clerical or arithmetical mistake liable to be corrected
by issuing corrigendum.
32.
We should now look into the decision of this Court in the case of State of
Assam v. Bhaskar Jyoti Sarma, (2015) 5 SCC 321. A cursory reading of this
decision may at the first blush create an impression that the dictum as laid
in Hari Ram (supra) has been diluted.
33.
We quote few relevant paras of the said judgment as under:-
14. We say so because
in the ordinary course actual physical possession can be taken from the person
in occupation only after notice under Section 10(5) is issued to him to
surrender such possession to the State Government, or the authorised officer or
the competent authority. There is enough good sense in that procedure inasmuch
as the need for using force to dispossess a person in possession should
ordinarily arise only if the person concerned refuses to cooperate and
surrender or deliver possession of the lands in question. That is the rationale
behind Sections 10(5) and 10(6) of the Act. But what would
be the position if for any reason the competent authority or the Government or
the authorised officer resorts to forcible dispossession of the erstwhile
owner even without exploring the possibility of a voluntary surrender or
delivery of such possession on demand. Could such use of force vitiate the
dispossession itself or would it only amount to an irregularity that would give
rise to a cause of action for the aggrieved owner or the person in possession
to seek restoration only to be dispossessed again after issuing a notice to
him. It is this aspect that has to an extent bothered us.
15. The High Court has
held that the alleged dispossession was not preceded by any notice
under Section 10(5) of the Act. Assuming that to be the case all that
it would mean is that on 7th December, 1991 when the erstwhile owner was
dispossessed from the land in question, he could have made a grievance based on
Section 10(5) and even sought restoration of possession to him no matter he
would upon such restoration once again be liable to be evicted
under Sections 10(5) and 10(6) of the Act upon his failure
to deliver or surrender such possession. In reality therefore unless there was
something that was inherently wrong so as to affect the very process of taking
over such as the identity of the land or the boundaries thereof or any
other circumstance of a similar nature going to the root of the matter
hence requiring an adjudication, a person who had lost his land by reason of
the same being declared surplus under Section 10(3) would not consider it
worthwhile to agitate the violation of Section 10(5) for he can well understand
that even when the Court may uphold his contention that the procedure ought to
be followed as prescribed, it may still be not enough for him to retain the
land for the authorities could the very next day dispossess him from the same
by simply serving a notice under Section 10(5). It would, in that view, be an
academic exercise for any owner or person in possession to find fault with his
dispossession on the ground that no notice under Section 10(5) had been served
upon him.
16. The issue can be
viewed from another angle also. Assuming that a person in possession could make
a grievance, no matter without much gain in the ultimate analysis, the question
is whether such grievance could be made long after the alleged violation of
Section 10(5). If actual physical possession was taken over from the erstwhile
land owner on 7th December, 1991 as is alleged in the present case any
grievance based on Section 10(5) ought to have been made within a
reasonable time of such dispossession. If the owner did not do so, forcible
taking over of possession would acquire legitimacy by sheer lapse of time.
In any such situation
the owner or the person in possession must be deemed to have waived his right
under Section 10(5) of the Act. Any other view would, in our opinion,
give a licence to a litigant to make a grievance not because he has suffered
any real prejudice that needs to be redressed but only because the fortuitous
circumstance of a Repeal Act tempted him to raise the issue regarding his
dispossession being in violation of the prescribed procedure.
17. Reliance was placed
by the respondents upon the decision of this Court in Hari Ram's case (supra).
That decision does not, in our view, lend much assistance to the respondents.
We say so, because this Court was in Hari Ram's case (supra) considering
whether the word may appearing in Section 10(5) gave to the competent
authority the discretion to issue or not to issue a notice before taking
physical possession of the land in question under Section 10(6). The question
whether breach of Section 10(5) and possible dispossession without notice
would vitiate the act of dispossession itself or render it non est in the eye
of law did not fall for consideration in that case. In our opinion, what
Section 10(5) prescribes is an ordinary and logical course of action that ought
to be followed before the authorities decided to use force to dispossess the
occupant under Section 10(6). In the case at hand if the appellant's version
regarding dispossession of the erstwhile owner in December 1991 is correct, the
fact that such dispossession was without a notice under Section 10(5) will be
of no consequence and would not vitiate or obliterate the act of taking
possession for the purposes of Section 3 of the Repeal Act. That is because
Bhabadeb Sarma-erstwhile owner had not made any grievance based on breach of
Section 10(5) at any stage during his lifetime implying thereby that he had
waived his right to do so.
(Emphasis supplied)
34.
We have supplied emphasis on paras 15 and 17 of Bhaskar Jyoti
Sharma (supra) referred to above, for the purpose of highlighting
that Hari Ram (supra) has not been diluted in any manner. We are
of the firm view that Hari Ram (supra) holds the field even as on
date. The statements of law in Hari Ram (supra) are absolutely
correct.
35.
If two decisions of this Court appear inconsistent with each other, the High
Courts are not to follow one and overlook the other, but should try to
reconcile and respect them both and the only way to do so is to adopt the wise
suggestion of Lord Halsbury given in Quinn v. Leathern, 1901 AC 495 at p.506
and reiterated by the Privy Council in Punjab Cooperative Bank Ltd. v.
Commr. of Income Tax, Lahore AIR 1940 PC 230:
every judgment
must be read as applicable to the particular facts proved or assumed to be
proved, since the generality of the expressions, which may be found there, are
not intended to be expositions of the whole law, but governed or qualified by
the particular facts of the case in which such expressions are to be found. and
follow that decision whose facts appear more in accord with those of the case
at hand.
36.
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. This Court
in Maharaj Singh v. State of UP, reported in 1977(1) SCR 1072, 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. This Court
in Rajendra Kumar v. Kalyan (Dead) by L.Rs. reported in (2000) 8 SCC 99,
held as follows:-
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. (Emphasis supplied)
37.
Sub-section (5) of Section 10 talks 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 Government.
38.
If de facto possession has already passed on to the State Government by the two
deeming provisions under sub-section (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 sub-section (3) to
Section 10 can be voluntary so that the person may get the compensation as
provided under Section 11 of the Act, 1976 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) to Section 10 to
surrender or deliver possession. Sub-section (5) of Section 10 visualizes a
situation of surrendering and delivering possession, peacefully while
sub-section (6) of Section 10 contemplates a situation of forceful
dispossession.
39.
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
18.03.1999. 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 landowner or holder
can claim the benefit of Section 3 of the Repeal Act, 1999. In the case on
hand, the State Government has in our considered view not been able to
establish any of those situations and hence the learned Single Judge was right
in holding that the appellant herein is entitled to get the benefit of Section
3 of the Repeal Act, 1999.
40.
The effect of Repeal Act, 1999 is further clear. If the landowner remains in
physical possession, then irrespective of his land being declared surplus and/or
entry being made in favour of the State in revenue records, he will not be
divested of his rights. Even if compensation is received that also will not
dis-entitle him to claim the benefit if compensation is refunded, provided he
is in actual physical possession. Payment of compensation has
no co-relation with the taking of actual physical possession as with the
vesting land compensation becomes payable which can be paid without taking
actual physical possession.
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.
SCOPE OF INTRA-COURT
APPEAL
42.
We have noticed that the Division Bench in its impugned judgment has used the
expression shockingly the learned Single Judge at various places. We fail to
understand what is so shocking in the judgment of the learned Single Judge that
the Division Bench had to interfere in a writ appeal. Was the Division Bench
deciding a criminal appeal against the judgment and order of conviction passed
by the learned Single Judge? The Division Bench was quite aware that it
was deciding an intra court appeal. An intra-court appeal is really not a
statutory appeal preferred against the judgment and order of an inferior to the
superior court. The Division Bench was not deciding a criminal appeal against
the judgment rendered by learned Single Judge. The appeal inter se in a High
Court from one court to another is really an appeal from one coordinate bench
to another coordinate bench and it is for this reason that a writ cannot be
issued by one Bench of the High Court to another Bench of the High Court nor
can even the High Court issue writ to a High Court. Thus, unlikely an appeal,
in general, an intra court appeal is an appeal on principle and that is why,
unlike an appeal, in an ordinary sense, such as a criminal appeal, where the
whole evidence on record is examined afresh by the appellate court, what is
really examined, in an intra court appeal, is the legality and validity of a
judgment and/or order of the learned Single Judge and it can be set aside or
should be set aside only when there is a patent error on the face of the
record or the judgment is against the established or settled principles of law.
If two views are possible and a view, which is reasonable and logical has been
adopted by a Single Judge, the other view howsoever appealing may be to the
Division Bench, it is the view adopted by the learned Single Judge, which
should, normally, by allowed to prevail.
43.
The learned Single Judge after a meticulous examination of the entire record
noticed so many deficiencies in the procedure adopted by the State. The plain
reading of the impugned judgement gives an impression that all that the
Division Bench kept doing was to cure such deficiencies noted by the learned
Single Judge by giving benefit of doubt to the State at every possible stage.
44.
The State has not been able to give us any satisfactory reply as to on what basis
it says that at the relevant point time the factory was closed; there was not a
soul in site and therefore, the officials were left with no other option
but to affix Section 10(5) notice outside the premises. This is something which
is absolutely unpalatable. The State proceeds further saying that as there was
no voluntary surrender of the excess land within thirty days from the date of
affixation, it had to invoke Section 10(6) of the Act, 1976 and
accordingly took over the possession. It is extremely hard to believe that when
such a large parcel of land is being taken over the owner would not be present
and further would not take any steps in accordance with law.
45.
It was pointed out on behalf of the appellant herein that not only the factory
is still running on the subject-land but there are multi-storeyed residential
buildings also constructed therein. It was also pointed out that entire land is
encompassed by a boundary wall and the gate is manned by security guard. It was
also brought to our notice that the so called panchnama does not contain any
site map or distinctive boundaries with special divisions whatsoever. The
entire extent of 1,63679 sq.mtrs. is bound by one compound wall. It seems that
the Division Bench in its impugned judgment has observed that there is no
requirement under the statute for obtaining the signature of the landowner in
the panchnama or filing of the affidavits by the panchas. When State
Authorities try to take law in their own hands by hook or crook and rely on
bogus paper panchnamas for the purpose of asserting that actual physical
possession was taken over before the date of the repeal, then it is imperative
that the signature of the landowner must be obtained in the panchnama so as to
attach sanctity and authenticity to such exercise of taking over of actual
possession. Affidavits of the panchas would also attach great sanctity to the
same.
46.
We have no hesitation in saying that the State has not placed true and correct
facts in all respect. Both of us (J.B. Pardiwala and R. Mahadevan, J.J.) have
worked as judges in our respective High Courts. We had the occasion to
decide many matters exactly of the present type. Our experience so far has been
that out of ten matters in nine matters it was apparent that the cases were one
of paper possession. The present case is also one of paper possession. The
learned Single Judge was constrained to observe that having regard to the
materials on record few documents were found to be ante dated coupled with
fabrication of evidence to some extent. All this has been dismissed by the
Division Bench saying that they could be clerical errors or arithmetical
errors.
POWER
OF WRIT COURT TO DETERMINE DISPUTED QUESTION OF FACT
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.
50. In
the aforesaid context, we may look into the decision of this Court in the case
of State of Orissa v. Dr. (Miss) Binapani Dei reported in AIR 1967 SC
1269. In paragraph 6 at p. 1270 of the said judgment, this Court has been
pleased to hold as follows:-
Under Art.
226 of the Constitution the High Court is not precluded from entering upon
a decision on questions of fact raised by the petition. Where an enquiry into
complicated questions of fact arises in a petition under Art. 226 of
the Constitution before the right of an aggrieved party to obtain relief
claimed may be determined. The High Court may in appropriate cases decline to
enter upon that enquiry and may refer the party claiming relief to a suit. But
the question is one of discretion and not of jurisdiction of the Court.
(Emphasis supplied)
51.
This Court in the case of Gunwant Kaur v. Bhatinda
Municipality reported in AIR 1970 SC 602 observed as follows:-
The High Court observed that they will not
determine disputed question of fact in a writ petition. But what facts were in
dispute and what were admitted could only be determined after an affidavit in
reply was filed by the State. The High Court, however, proceeded to dismiss the
petition in limine. The High Court is not deprived of its jurisdiction to
entertain a petition under Art.226 merely because in considering the
petitioner's right to relief questions of fact may fall to be determined. In a
petition under Art.226 the High Court has jurisdiction to try issues
both of fact and law. Exercise of jurisdiction is, it is true, discretionary,
but the discretion must be exercised on sound judicial principles. When the
petition raises questions of fact of a complex nature, which may for their
determination require oral evidence to be taken, and on that account the High
Court is of the view that the dispute may not appropriately be tried in a writ
petition, the High Court may decline to try a petition. Rejection of a petition
in limine will normally be justified, where the High Court is of the view that
the petition is frivolous or because of the nature of the claim made, dispute
sought to be agitated., or that the petition against the party against whom
relief is claimed is not maintainable or that the dispute raised thereby is
such that it would be inappropriate to try it in the writ jurisdiction,
or for analogous reasons.
(Emphasis
supplied)
52. In
one of the recent pronouncements of this Court in State of U.P. & Anr.
v. Ehsan & Anr. reported in 2023 INSC 906, this Court observed that:-
28. We are conscious
of the law that existence of an alternative remedy is not an absolute bar on
exercise of writ jurisdiction. More so, when a writ petition has been
entertained, parties have exchanged their pleadings/ affidavits and the matter
has remained pending for long. In such a situation there must be a sincere
effort to decide the matter on merits and not relegate the writ petitioner to
the alternative remedy, unless there are compelling reasons for doing so. One
such compelling reason may arise where there is a serious dispute between the
parties on a question of fact and materials/evidence(s) available on record are
insufficient/inconclusive to enable the Court to come to a definite conclusion.
29. Bearing the aforesaid legal principles in
mind, we would have to consider whether, in the facts of the case, the High
Court ought to have dismissed the third writ petition of the first respondent
and relegate him to a suit as there existed a serious dispute between the
parties regarding taking of possession. More so, when the High Court, in the
earlier round of litigation, refrained from taking up the said issue even
though it had arisen between the parties.
30. No doubt, in a
writ proceeding between the State and a landholder, the Court can, on the basis
of materials/evidence(s) placed on record, determine whether possession has
been taken or not and while doing so, it may draw adverse inference against the
State where the statutory mode of taking possession has not been followed
[See State of UP vs. Hari Ram (supra)]. However, where possession
is stated to have been taken long ago and there is undue delay on the part of
landholder in approaching the writ court, infraction of the prescribed
procedure for taking possession would not be a determining factor, inasmuch as,
it could be taken that the person for whose benefit the procedure existed had
waived his right thereunder [See State of Assam vs. Bhaskar Jyoti
Sarma, (supra)].
In such an event, the
factum of actual possession would have to be determined on the basis of
materials/evidence(s) available on record and not merely by finding fault in
the procedure adopted for taking possession from the land holder. And if the
writ court finds it difficult to determine such question, either for
insufficient/ inconclusive materials/evidence(s) on record or because oral
evidence would also be required to form a definite opinion, it may relegate the
writ petitioner to a suit, if the suit is otherwise maintainable. (Emphasis
supplied)
53.
Thus, it would all depend on the nature of the question of fact. In other
words, what is exactly, that the writ court needs to determine so as to arrive
at the right decision. If the only issue, that revolves around the entire
debate is one relating to actual taking over of the physical possession of the
excess land under the provisions of sub-sections (5) and (6) of Section
10 of the Act, 1976 respectively, then in such circumstances, the writ
court has no other option but to go into the factual aspects and take an
appropriate decision in that regard. The issue of possession, by itself, will
not become a disputed question of fact. If all that has been said by the State
is to be accepted as a gospel truth and nothing shown by the landowner is to be
looked into on the ground that a writ court cannot go into disputed questions
of fact, then the same may lead to a serious miscarriage of justice.
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. Intl Trade 1997]
55. In
the aforesaid context, we may refer to the decision of this Court
in Kolkata Municipal Corporation and Another v. Bimal Kumar Shah and
Others reported in (2024) 10 SCC 533, wherein this Court in paras 28 and
29 respectively observed thus:-
28. While it is true
that after the 44th Constitutional Amendment [the Constitution
(44th Amendment) Act, 1978], the right to property drifted from Part III
to Part XII of the Constitution, there continues to be a potent safety net
against arbitrary acquisitions, hasty decision-making and unfair redressal
mechanisms. Despite its spatial placement, Article 300-A [ 300-A of
the Constitution:300-A. Persons not to be deprived of property save by
authority of law.No person shall be deprived of his property save by authority
of law.] which declares that no person shall be deprived of his property save
by authority of law has been characterised both as a constitutional and also a
human right [Lachhman Dass v. Jagat Ram, (2007) 10 SCC 448; Vidya Devi v.
State of H.P., (2020) 2 SCC 569 : (2020) 1 SCC (Civ) 799] . To assume that
constitutional protection gets constricted to the mandate of a fair
compensation would be a disingenuous reading of the text and, shall we say,
offensive to the egalitarian spirit of the Constitution.
29. The constitutional
discourse on compulsory acquisitions, has hitherto, rooted itself within the
power of eminent domain. Even within that articulation, the twin conditions
of the acquisition being for a public purpose and subjecting the divestiture to
the payment of compensation in lieu of acquisition were mandated [State of
Bihar v. Kameshwar Singh, (1952) 1 SCC 528]. Although not explicitly
contained in Article 300-A, these twin requirements have been read in and
inferred as necessary conditions for compulsory deprivation to afford
protection to the individuals who are being divested of property
[Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai, (2005) 7 SCC
627; K.T. Plantation (P) Ltd. v. State of Karnataka, (2011) 9 SCC 1 :
(2011) 4 SCC (Civ) 414] . A post-colonial reading of the Constitution cannot
limit itself to these components alone. The binary reading of the
constitutional right to property must give way to more meaningful renditions,
where the larger right to property is seen as comprising intersecting
sub-rights, each with a distinct character but interconnected to constitute the
whole. These sub- rights weave themselves into each other, and as a
consequence, State action or the legislation that results in the deprivation of
private property must be measured against this constitutional net as a whole,
and not just one or many of its strands. (Emphasis supplied)
56.
In the overall view of the matter, we are convinced that the Division Bench of
the High Court committed an egregious error in interfering with a very well
considered and well-reasoned judgment rendered by the learned Single Judge of
the High Court. There was no good reason for the Division
Bench
to interfere with the judgment rendered by the learned Single Judge.
57.
In the result, both the appeals succeed and are hereby allowed. The impugned
judgment and order passed by the Division Bench of the High Court is hereby set
aside and that of the learned Single Judge is affirmed and restored.
58.
Pending applications, if any, shall stand disposed of.
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