Allowed

Smt. Savitri Devi v. State of U.P. and 2 Others

Allahabad HC19 Dec 2017WRIC/28862/2015

Case brief

AI extract

What is this about?

Urban land ceiling proceedings were held abated because actual physical possession had not been taken before repeal. The court allowed the petition, restrained respondents from interfering with the petitioner's possession, and awarded costs.

What did the court decide?

Ceiling proceedings declared abated; respondents restrained from interfering with the petitioner's possession of the disputed land; costs awarded.

Smt. Savitri Devi Vs State of U.P. and 2 Others — Land Acquisition | Allahabad HC (2017)

¶1

Court No. - 34

¶2

Case :- WRIT - C No. - 28862 of 2015

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Petitioner :- Smt. Savitri Devi Respondent :- State Of U.P. & 2 Others Counsel for Petitioner :- Raj Karan Yadav Counsel for Respondent :- C.S.C.

¶4

Hon'ble Sudhir Agarwal,J. Hon'ble Ajit Kumar,J.

¶5

Heard Shri Raj Karan Yadav, learned counsel for petitioner, learned Standing Counsel appearing for Staterespondents and perused the record.

¶6

This writ petition under Article 226 of Constitution of India has been filed by Smt. Savitri Devi, wife of Badri Singh, seeking a writ of mandamus commanding respondents not to interfere in actual physical possession of petitioner over land in dispute since ceiling proceedings have already abated after enactment of Urban Land (Ceiling & Regulation) Repeal Act, 1999 (hereinafter referred to as “Repeal Act, 1999”) .

¶7

Dispute in the present petition relates to land, details whereof is as under:

¶8

fLFkfr	[kljk la[;k] igPkku vkSj lhek	{ks=Qy	vH;qfDr
Ckkjk fljksgh	vkj0la0 588	1344-57	13&2&12
	238	34-10	0&7&0
	263	170-70	0&1&13&0
419&17 ckdh 'ks"k	264	307-27	0&3&0&0
fn;k	265	682-83	0&6&13&8
	266	1433-95	0&14&0&0
	267	341-41	0&3&0&0
	268	512-12	0&5&0&0
	269	341-41	0&3&0&0
	542	1160-01	0&11&8&0

¶9

¶10

Status	Khasra No., Identification and Boundaries	Area	Remarks
Bara Sirohi	Property No. 588	1344.57	13-2-12
	238	34.10	0-7-0
	263	170.70	0-1-13-0
419-17 Remaining	264	307.27	0-3-0-0
given	265	682.83	0-6-13-8
	266	1433.95	0-14-0-0
	267	341.41	0-3-0-0
	268	512.12	0-5-0-0
	269	341.41	0-3-0-0
	542	1160.01	0-11-8-0

¶11

(English translation by Court)

¶12

The aforesaid plots (hereinafter referred to as “disputed land”) are situated in Village-Bara Sirohi, District-Kanpur.

¶13

In Revenue record, disputed land was recorded in the name of Badri Singh S/o Raghunandan Singh. He filed return/statement under Section 6(1) of Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as “Act, 1976”). It was registered as Case No. 7406 of 1976 (State vs. Badri Singh). An order was passed by Competent Authority under Section 8(4) of Act, 1976 on 31.12.1979 declaring total 16670.95 sq.meters land 'surplus'. In respect of aforesaid land, notifications under Section 10(1) and 10(3) of Act, 1976 were published in Official Gazette on 08.10.1983 and 02.06.1986, respectively. Competent Authority, Urban Ceiling, Kanpur, issued notice dated 15.07.1988 under Section

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10(5) of Act, 1976 to Badri Singh, husband of petitioner, requesting him to hand-over possession of land, declared “surplus” vide order dated 31.12.1979, to Collector, Kanpur, failing which further action for forceful possession shall be taken under Section 10(6) of Act, 1976.

¶16

Petitioner claimed that aforesaid notice under Section 10(5) was never served upon landowner and, in fact, it was never issued. Actual physical possession of alleged surplus land was never taken by respondents and it continued to be in possession of petitioner after death of her husband. It is also said that against order passed by Competent Authority, declaring disputed land 'surplus', petitioner had also filed Ceiling Appeal No. 74 of 2011, which is pending. Since, respondents are now attempting to take possession of disputed land, hence present writ petition, has been filed.

¶17

A counter affidavit filed on behalf of respondents 1 to 3, sworn by Shri Ashok Kumar Mishra, Junior Engineer/Nodal Officer, Urban Land Ceiling, Kanpur. It is stated therein that Badri Singh submitted return No. 7406 in respect of disputed land. A survey was conducted wherein it was found that total 17670.95 sq. meters land along with building is in his possession, as such, after giving benefit of 1000 sq. meters of building, to Tenure Holder, under Section 4(1) of Act, 1976, rest 16670.95 sq. meters land was 'surplus'. Accordingly, a draft statement along with notice under Section 8(3) of Act,

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1976, was issued to Tenure Holder Badri Singh on 25.6.1979 through registered letter. Since Tenure-Holder did not file objection within prescribed period, hence, order under Section 8(4) of Act, 1976 was passed on 31.12.1979, declaring 16670.95 sq. meters land 'surplus'. Thereafter, a notice along with final statement under Section 9 of Act, 1976, was sent to Tenure-Holder by Registered Post dated 25.03.1980, which was refused to be accepted by Tenure-Holder. Notification under Section 10(1) of Act, 1976, was published in Official Gazette on 08.10.1983 and notification under Section 10(3) of Act, 1976 was published in Official Gazette on 02.6.1986. Since then, land declared 'surplus' has vested in State free from all encumbrances. A notice under Section 10(5) of Act, 1976, was issued on 15.7.1988 to Tenure-Holder. Since, possession was not handed over voluntarily within prescribed period of 30 days, Tehsildar , Sadar, was directed to take possession over surplus land under Section 10(6) of Act, 1976, and it was then handed over to Kanpur Development Authority (hereinafter referred to as “KDA”) on 22.7.1991.

¶20

A copy of alleged possession memo has been filed as Annexure-'CA 1', which is a letter dated 10.7.1991 sent by Competent Authority, Urban Land Ceiling to Tehsildar , Sadar, Kanpur, and reads as under:

¶21

^^d`i;k xzke ckjk fljksgh dkuiqj ds Hkwys[k fujh{kd ,oa ys[kiky dks funsZ'k nsus dk d"V djsa fd fnukad fu/kkZfjr djsa ftlls /kkjk 10¼5½ ds ekeyksa esa lEcfU/kr xzke dh dCts dh dk;Zokgh djkds mDr Hkwfe dks dkuiqj fodkl izkf/kdj.k esa gLrkUrfjr fd;k tk lds A^^”

¶22

¶23

Please be kind enough to direct the Bhulekh Nirikshak and Lekhpal of Village Bara Sirohi, Kanpur to fix a date on which the said land can be transferred to Kanpur Development Authority by initiating possession proceedings for the relevant village in the matters falling u/s 10(5).

¶24

(English translation by Court)

¶25

A personal affidavit has also been filed by Collector, Kanpur Nagar, who has also placed reliance on letter dated 10.7.1991 sent by Competent Authority, Urban Ceiling and then it is contended that once possession has been taken, any defect in notice under Section 10(5) or 10(6) of Act, 1976 will be of no consequence and Repeal Act, 1999 will have no application in view of Supreme Court judgment in State of Assam Vs. Bhasker Jyoti Sharma & Ors. 2015 (5) SCC 321 .

¶26

We also required Collector, Kanpur to produce original record and therefrom we find that notice dated 15.07.1988 under Section 10(5) of Act, 1976 was issued by Competent Authority. Then there is an endorsement on 27.04.1989 requesting for correction in the number of plots and this noting dated 27.4.1989 reads as under :

¶27

^^l{ke izkf/kdkjh egksn;

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fooj.kh la 7406 tks fd cnzh flag }kjk nkf[ky dh xbZ Fkh] mijksDr esa /kkjk 9 ds vkns'k mijkUr vkjkth la 238 ds LFkku ij 230 fyfidh; =qfV ds dkj.k gks x;k gSA vr% mijksDr la'kks/ku gsrq d`i;k vkns'k ikfjr djus dk d"V djsA^^

¶29

“To,

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The Competent Officer,

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List/paper no. 7406 had been filed by Badri Singh;

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wherein, subsequent to the order passed u/s 9, property no. 238 came to be shown as no. 230 due to a clerical mistake. Hence, an order may kindly be passed for the aforesaid amendment.”

¶34

(English translation by Court)

¶35

Consequently, another order was passed by Competent Authority on 29.04.1989 as under :

¶36

^^/kkjk 10¼3½¼1½ o 10¼5½ dh dk;Zokgh esa foKIr 230 ds LFkku ij iqu% 10¼1½ o 10¼3½ dh la'kksf/kr foKfIr dh tk, ftldk vuqeksnu /kkjk 45 esa fd;k tkrk gSA vof'k"V ds fy, dk;Zokgh /kkjk 10¼5½ lqfuf'Pkr dh tk,A^^

¶37

“In connection with the proceedings u/s 10(3)(1) and 10(5), an amended notification showing replacement for property no. 230 may again be issued u/s 10(1) and 10(3); approval whereof, is done u/s 45. For the remainder, the proceedings u/s 10(5) may please be ensured.

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(English translation by Court)

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Thus, on 29.04.1989, Competent Authority ordered for ensuring proceedings under Section 10(5) of Act, 1976. We do not find from original record any document, said to have been issued after 29.04.1989, either under Section 10(5) or 10(6) of Act, 1976. Then on 10^th July, 1991 also Competent Authority directed Tehsildar, Sadar, Kanpur to issue necessary instructions to Revenue Inspector and Lekhpal to complete proceedings of possession of disputed land under Section 10(5) so that land may be transferred to KDA. The said letter dated 10^th July, 1991 reads as under :

^^rglhynkj]

lnj rglhy

dkuiqjA

d`i;k xzke ckjk fljksgh dkuiqj ds Hkwys[k fujh{kd ,oa ys[kiky dks funsZ'k nsus dk d"V djsa fd fnukad fu/kkZfjr djsa ftlls /kkjk 10¼5½ ds ekeyksa esa lEcfU/kr xzke dh dCts dh dk;Zokgh djkds mDr Hkwfe dks dkuiqj fodkl izkf/kdj.k esa gLrkUrfjr fd;k tk lds A^

¶45

(Emphasis added)

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“To,

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The Tansildar, Sadar Tahsil,

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Kanpur

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¶50

(English translation by Court)

¶51

At the bottom, we find that instead of completing proceedings under Section 10(5) of Act, 1976 and taking possession from land-owner, Naib Tehsildar on 17.07.1991 fixed 22.07.1991 for giving possession to KDA and its noting dated 17.07.1991 reads as under :

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^^egksn;

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l{ke izkf/kdjh egksn;

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mDr vkns'k ds vuqlkj fnukad 22@7@91 dk s xzke ckjk fljksgh ds lhfyax ds uEcj dk dCtk ekSds ij nsus gsrq

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fu'Pk; fd;k tkrk gSA^ ^

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(Emphasis added)

¶58

To,

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The Competent Authority,

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As per the said order, it is decided to give on-the-spot possession of the number under ceiling at Village Bara Sirohi on 22.7.91.”

¶61

(English translation by Court)

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Thereafter, on 22.7.1991 there is a noting, which reads as under :

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^^egksn;

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vkt fnukad 22@7@91 dks fu/kkZfjr frfFk vk/kkj ij lhfyax dk;Zy; mifLFkr K.D.A. ds vf/kdkjh o lhfyax ]]]]]]]]]lhfyax ds lkFk ckjkfljksgh tkdj ]]]]]]]ds uEcjksa dk tkdj dCtk ekSds ij fn;kA ^^

¶65

(Emphasis added)

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Sir,

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On this 22.7.91, that is, on the appointed date, the officers of (unclear) present at the ceiling office went to Bara Sirohi along with ceiling ….... and gave possession of the ….... numbers at the spot.

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(English translation by Court)

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15. All these facts clearly shows that actual physical possession of disputed land was never taken by respondents at all. Even notice under Section 10(5) or 10(6) of Act, 1976 was never issued and served upon Tenure-Holder. Though, on paper, possession claimed to have been transferred to KDA but there is nothing on record to show that KDA ever got possession over

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disputed land. In personal affidavit filed by Collector Shri Surendra Singh, sworn on 18.12.2017, we do not find any document to show even de facto possession of KDA over disputed land. In fact, he has also relied on letter dated 10.7.1991 of Competent Authority to suggest that possession was taken and handed over to KDA in 1991. As we have already said that aforesaid letter nowhere shows that possession was actually taken from land-owner at any point of time. Thus, entire exercise undertaken is nothing but a “paper transaction” of alleged transfer of land by Ceiling Authorities to KDA without taking actual physical possession from land-owner at any point of time.

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16. Learned Standing Counsel, in this backdrop, argued that once land was declared surplus and notification under Section 10(3) of Act, 1976 was issued, land vested in 'State' without any encumbrance and it would amount to 'deemed possession' of respondents. The mere fact that “actual physical possession” was not taken or there is no document or material to show that “actual physical possession” was ever taken, will make no difference.

¶73

The argument of “deemed possession” taken by State in the present case has already been negated when a similar issue was raised in State of U.P. Vs. Hari Ram 2013 (4) SCC 280 . Therein Hari Ram filed a statement on 28.09.1976 giving details of vacant land, he was holding in excess of ceiling limit, as provided under Act, 1976 as provided under Section 6. Competent Authority surveyed the land and a draft statement under Section

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8(3) was served upon Hari Ram on 13.05.1981. Competent Authority then passed order on 29.06.1981 under Section 8(4) of Act, 1976 declaring 52,513.30 sq. meters land surplus. Notification under Section 10(1) was published on 12.06.1982 and then notification under Section 10(3) vesting land in 'State' was issued on 22.11.1997 declaring that land shall be deemed to have vested in 'State' with effect from 12.06.1982. Competent Authority vide letter dated 10.06.1999 informed Settlement Officer (Consolidation) that surplus land declared by notification dated 22.11.1997 stood vested in Government. On 19.06.1999 Prescribed Authority issued notice under Section 10(5) directing Hari Ram to handover possession of land declared surplus to authorized person. Hari Ram filed appeal before District Judge, Varanasi being Appeal No. 29 of 1999 under Section 33 of Act, 1976 contending that before passing order under Section 8(4) no notice under Section 8(3) was served upon him. Appeal was allowed by District Judge, Varanasi vide judgment dated 14.12.1999 and order dated 29.06.1981 passed by Competent Authority under Section 8(4) was set aside. Matter was taken to this Court by State of U.P. in Writ Petition No. 47369 of 2000 which was dismissed and thereafter it was taken in appeal to Supreme Court.

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Argument advanced on behalf of State of U.P. before Supreme Court was that sub-section (3) of Section 10 does not envisage taking physical and “de facto

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possession” of surplus land. The expression “deemed acquisition” and “deemed vesting” would cover not only “de jure possession” but also “de facto possession”. It was sought to argue that this deeming fiction is sufficient compliance of requirement of possession under Section 3(1)(a) of Repeal Act, 1999 and would dispel otherwise claim set up by land owner. It is in this backdrop matter was examined by a Bench of Two Judges of Supreme Court. It observed that 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 interest” because till that time land may be either in ownership of the person who held that vacant land or possess such land as owner or as tenant or as mortgagee and so on as defined under Section 2(1) of Act, 1976. Word 'vested' has not been defined in Act, 1976 so also the word 'absolutely'. What is “vested absolutely” is only the land which is deemed to have been acquired and nothing more. Vest/vested, may or may not include “transfer of possession” meaning of which depends on the context in which it has been placed and interpretation of various other related provisions. In para 29 and 30 of judgment, Court said:

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“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 is pitted against a statutory hypothesis. Possession, there is an adage “nine points of law” In

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Beedall v. Maitland (1881) 17 Ch. D. p.183 Sir Edward Fry, while speaking of a Statute which makes a forcible entry an indictable offence, stated as follows:

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“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.”

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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 hands of 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.”

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(Emphasis added)

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Court then restricted meaning of word “vesting” under Section 10(3) by holding that “vesting” means “vesting of title absolutely” and not “possession” though nothing stands in the way of a person voluntarily surrendering or delivering possession. For the purpose of Section 10(3) of Act, 1976, Court said, that the word “vested” 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 Act, 1976. Court then examined Section 10(5) stating that it talks of peaceful possession and 10(6) talks of forceful possession. Discussion in this regard, in paras 34, 35, 36 and 37, read as under:

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“Peaceful dispossession

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34. Sub-section (5) of Section 10, for the first time, speaks of “possession” which says where any land is vested in the State Government under 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 authorized by the State Government.

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35. 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 early. Once there is no voluntary surrender or delivery of possession, necessarily the State Government has

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to issue notice in writing under sub-section (5) to Section 10 to surrender or deliver possession . Subsection (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.

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Forceful dispossession

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36. The Act provides for forceful dispossession but only when a person refuses or fails to comply with an order under sub-section (5) of Section 10. Subsection (6) to 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, force - as may be necessary - can be used. Sub-section (6), therefore, contemplates a situation of a person refusing or fails to comply with the order under sub- section (5), in the event of which the competent authority may take possession by use of force. Forcible dispossession of the land, therefore, is being resorted only in a situation which falls under sub-section (6) and not under sub-section (5) to Section 10 . Subsections (5) and (6), therefore, take care of both the situations, i.e. taking possession by giving notice that is “peaceful dispossession” and on failure to surrender or give delivery of possession under Section 10(5), than “forceful dispossession” under sub-section (6) of Section 10.

¶94

37. Requirement of giving notice under subsections (5) and (6) of Section 10 is mandatory . Though the word ‘may’ has been used therein, the word ‘may’ in both the 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 subsection (6) of Section 11 is that it might result the land holder being dispossessed without notice,

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therefore, the word ‘may’ has to be read as ‘shall’.”

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(Emphasis added) 20. Court also refers to the procedure prescribed in U.P. Urban Land Ceiling (Taking of Possession payment of amount and Allied Matters) Directions, 1983 (Directions issued by the State Government under Section 35 of Act, 1976) and said in para 39, as under:

¶98

“39. Above-mentioned directives make it clear that sub-section (3) takes in only de jure possession and not de facto possession , therefore, if the land owner is not surrendering possession voluntarily under sub-section (3) of Section 10, or surrendering or delivering possession after notice , under Section 10(5) or dispossession by use of force , it cannot be said that the State Government has taken possession of the vacant land .” (emphasis added)

¶99

Then coming to Repeal Act, 1999 Court held that mere vesting of land under Section 10(3) would not confer any right upon State Government to have “de facto possession” of vacant land unless there has been a voluntary surrender of vacant land before 18.03.1999. It further says that, “State has to establish that there has been a voluntary surrender of vacant land or surrender and delivery of peaceful possession under sub-section (5) of Section 10 or forceful dispossession under sub-section (6) of Section 10. On failure to establish any of those situations, the land owner or holder can claim the benefit of Section 3 of the Repeal Act.” Having said so, Court held, that, since State Government failed to establish any of the above situation, hence Hari Ram was entitled for benefit under Section 3 of Repeal Act, 1999.

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Thus, theory of “deemed possession”, as argued before this Court by learned Standing Counsel having already been repelled and rejected by Supreme Court, cannot help respondents in any manner unless it can be shown that actual physical possession of land in dispute was taken by respondents at any point of time before enforcement of Repeal Act, 1999 on 18.03.1999 in the State of U.P.

¶102

The next question is, “how actual physical possession can be shown to have been taken. It has been examined time and again in the context of Land Acquisition Act, 1894 (hereinafter referred to as “Act, 1994”) . Consensus in all the judgment has been that kind of possession contemplated under Sections 3 and 4 of Repeal Act, 1999 is “actual physical possession” and not a mere “paper possession” and this is what was also held good in the context of Act, 1894.

¶103

The first authority on the subject is Balwant Narayan Bhagde Vs. M.D. Bhagwat and others, 1976 (1) SCC 700 . It is a three Judges judgment. The majority view is the opinion expressed by Hon'ble Bhagwati, J. for himself and Hon'ble Gupta, J. while contrary view was expressed by Hon'ble Untwalia, J. His Lordship Untwalia, J. observed that taking possession means taking of possession on the spot. It is neither a possession on paper nor symbolical possession. The Act is silent on the point as to what is the mode of taking possession. Unless possession is taken by written agreement of party

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concerned, the mode of taking possession obviously would be for the authority to go upon the land and to do some act which would indicate that authority has taken possession on land. It may be in the form of declaration by beat of drum or otherwise or by hanging a written declaration on the spot. Presence of owner or occupant of land to effectuate taking of possession is not necessary. When possession has been taken, owner or occupant of land is dispossessed. Once possession has been taken land vests in Government.

¶106

The majority judgment delivered by Hon'ble Bhagwati, J. though in disagreement with Hon'ble Untwalia, J. but on the question of possession, we find a somewhat overlapping on the procedure discussed in two sets of judgments. Hon'ble Bhagwati, J., said that when State proceeds to take possession of land acquired, it must take actual possession of land since all interests on land are sought to be acquired by it. There can be no question of taking symbolical possession in the sense understood by judicial decisions under the Code of Civil Procedure (hereinafter referred to as the "CPC"), nor would possession merely on paper be enough. Court further said:

¶107

"What the Act contemplates as a necessary condition of vesting of the Land in the Government is the taking of actual possession of the land. How such possession may be taken would depend on the nature of the land. Such possession would have to be taken as the nature of the land admits of . There can be no hard and fast rule laying down what

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act would be sufficient to constitute taking of possession of land. We should not, therefore, be taken as laying down an absolute and inviolable rule that merely going on the 'pot and making a declaration by beat of drum or otherwise would be sufficient to constitute taking of possession of land in every case. But here, in our opinion, since the land was laying fallow and there was no crop on it at the material time, the act of the Tehsildar in going on the spot and inspecting the land for the purpose of determining what part was waste and arable and should, therefore, be taken possession of and determining its extent, was sufficient to constitute taking of possession. It appears that the appellant was not present when this was done by the Tehsildar, but the presence of the owner or the occupant of the land is not necessary to effectuate the taking of possession. It is also not strictly necessary as a matter of legal requirement that notice should be given to the owner or the occupant of the land that possession would be taken at a particular time, though it may be desirable where possible, to give such notice before possession is taken by the authorities, as that would eliminate the possibility of any fraudulent or collusive transaction of taking of mere paper possession, without the occupant or the owner ever coming to know of it." (emphasis added)

¶110

In General Manager, Telecommunication and

¶111

another Vs. Dr. Madan Mohan Pradhan and others, 1995 Supp.(4) SCC 268 it was claimed on behalf of State that possession was taken on 12.04.1976 and handed over to Union of India. With regard to mode and manner of possession the Court said:

¶112

"It is common knowledge that possession would always be taken under a memo and handing over also would be under a memo. It is a recognized usual practice in all the acquisition proceedings."

¶113

(Emphasis added)

¶114

¶115

In State of Tamil Nadu and another Vs. Mahalakshmi Ammal and others, 1996(7) SCC 269 Court said:

¶116

" Possession of the acquired land would be taken only by way of a memorandum, Panchanama, which is a legally accepted norm. It would not be possible to take any physical possession. Therefore, subsequent continuation, if any, had by the erstwhile owner is only illegal or unlawful possession which does not bind the Government nor vested under Section 16 divested in the illegal occupant ."

¶117

The question as to how physical possession of land is to be taken, was also considered in Balmokand Khatri Educational and Industrial Trust Vs. State of Punjab, 1996(4) SCC 212 , wherein Court said in para 4 of the judgment, as under:

¶118

"4. It is seen that the entire gamut of the acquisition proceedings stood completed by 17-4-1976 by which date possession of the land had been taken. No doubt, Shri Parekh has contended that the appellant still retained their possession. It is now well-settled legal position that it is difficult to take physical possession of the land under compulsory acquisition. The normal mode of taking possession is drafting the panchnama in the presence of panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would tantamount only to illegal or unlawful possession".

¶119

(emphasis added)

¶120

The majority opinion of Balwant Narayan Bhagde (supra) was considered in Tamil Nadu Housing Board Vs. A. Viswam, 1996 (8) SCC 259 wherein also a dispute

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of actual possession was raised. Court, relying on memorandum and Panchnama, prepared by Land Acquisition Officer for taking possession of acquired land and also the letter written by respondent wherein he admitted title of respondent but sought allotment of an alternative site, held that there was no question of requesting for alternative site if according to respondents title still vested in him and had not vested in 'State' by taking possession. Paras 9 and 10 of the judgment, relevant for our purpose, is reproduced as under:

¶123

"9. It is settled law by series of judgement of this Court that o ne of the accepted modes of taking possession of the acquired land is recording of a memorandum or Panchanama by the LAO in the presence of witnesses signed by him/them and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. It is common knowledge that in some cases the owner/interested person may not co-operate in taking possession of the land.

¶124

10. It is seen that in a letter written by the respondent himself, admitting the title of the Board to the land in the said survey number, he sought for allotment of alternative site. In other words, unless possession is taken and he is divested of the title and the same is vested in the appellant, he cannot make request to the appellant for providing him alternative site. It is not his case that at that stage he was still continuing to have title to the land in dispute. The admission is inconsistent with and incongruous to his interest. He was also aware that award was made and the possession obviously should have been taken thereunder......." (emphasis added)

¶125

The next authority is Larsen and Toubro Ltd. Vs. State of Gujrat and others, 1998 (4) SCC 387 . Therein

¶126

¶127

Court referred to Panchnama prepared by Deputy Collector showing that possession was taken and found it sufficient to hold that possession of land in question in that case was taken as contemplated under Act, 1894.

¶128

In P.K. Kalburqi Vs. State of Karnataka, 2005(12) SCC 489 , Court referred to the observations of Hon'ble Bhagwati, J. in Balwant Narayan Bhagde (supra) and said, when there is no crop or structure on the land only symbolic possession would be taken.

¶129

In Sita Ram Bhandar Society, New Delhi Vs. Lt. Governor, Government of N.C.T. Delhi and others, 2009(10) SCC 501 , Court, after referring to earlier decisions, said, that while taking possession, symbolic and notional possession is not envisaged under the Act but the manner in which possession is taken, must, of necessity, depend upon the facts of each case. Where a large area of land with a large number of owners is subject matter of possession, Court said, that, it would be impossible for Collector or Revenue officials to enter each bigha or biswa and take possession thereof. Pragmatic approach has to be adopted by Court. It further said:

¶130

"... 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." (emphasis added)

¶131

Similarly in Brij Pal Bhargava and others Vs. State

¶132

of U.P. and others, 2011(5) SCC 413, accepting

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¶134

possession, Court upheld the issue of possession on the basis of possession receipts and said that mere fact that in Revenue record there is no mutation or that erstwhile owner actually is still occupying acquired land, would make no difference.

¶135

After having a retrospect of earlier authorities, in Banda Development Authority, Bana Vs. Moti Lal Agarwal and others, 2011(5) SCC 394 , Court crystallized certain principles to determine when possession taken would be held to be actual physical possession by authorities and it reads as under:

¶136

"37. The principles which can be culled out from the above noted judgments are:

¶137

(i) No hard and fast rule can be laid down as to what act would constitute taking of possession of the acquired land.

¶138

(ii) If the acquired land is vacant, the act of the concerned State authority to go to the spot and prepare a panchnama will ordinarily be treated as sufficient to constitute taking of possession .

¶139

(iii) If crop is standing on the acquired land or building/structure exists, mere going on the spot by the concerned authority will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the authority concerned will have to give notice to the occupier of the building/structure or the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchnama. Of course, refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken.

¶140

(iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and

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every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures on such document.

¶143

(v) If beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3-A) and substantial portion of the acquired land has been utilised in furtherance of the particular public purpose, then the Court may reasonably presume that possession of the acquired land has been taken." (emphasis added)

¶144

In Jagdish and others Vs. State of U.P. and others, 2008(5) ADJ 5 , a Division Bench of this Court, having one of us (Hon'ble Sudhir Agarwal, J.) a member, referred to an authority letter of Special Land Acquisition Officer containing endorsement of Executive Engineer taking possession. It was held that possession was taken by Revenue authorities.

¶145

The aforesaid authorities have been referred to and followed by this Court in Writ Petition No. 40947 of 2004 (Punia @ Pania and another Vs. State of U.P. and others) and Writ Petition No. 33045 of 2009 (Rashid Vs. State of U.P. and Others) .

¶146

Faced with a situation where respondents could not place even an iota of evidence showing actual physical possession of disputed land by respondent, learned Standing Counsel sought to rely upon Supreme Court judgment in State of Assam Vs. Bhasker Jyoti Sharma & Ors. (supra) and contended that irrespective of any defect in notice under Sections 10(5) or 10(6) of Act,

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1976, if possession has been taken in any manner, Repeal Act 1999 will have no application.

¶149

We have gone through aforesaid judgment and find that aforesaid judgment will have application only if factum of taking actual physical possession is supported or fortified by placing some material before Court, but, not on mere assumption that since notification under Section 10(3) is issued, land vested in State and it amounts to transfer of possession to State. The judgment in State of Assam (supra) lays down law that possession, if actually has been taken, defect in notice or mode or manner of possession that it was taken forcibly or illegally will have no conequence because once possession is taken before enactment of Repeal Act, 1999 then Section 3 and 4 of Repeal Act, 1999 shall not apply. In the aforesaid judgment, State claimed that possession of surplus land was taken on 07.12.1991 vide certificate of handing over/ taking over prepared by Revenue Authorities, which also contain endorsement of concerned person handing over possession. From the judgment it is evident that original land owner, Bhabadeb Sarma, never raised any dispute regarding possession till his death on 03.10.1997. In the context of Section 3 of Repeal Act, 1999, Court said that aforesaid provision postulates that vesting of any vacant land under sub-section (3) of Section 10 is subject to condition that possession thereof has been taken over by Competent Authority or by State Government or any person duly authorised by State Government. It also held

¶150

¶151

that expression "possession" used in Section 3 means "actual physical possession" of surplus land and not just possession that goes with vesting of excess land in terms of Section 10(3) of the Act, 1976. Court then examined the question, if possession actually taken without notice under Section 10(5) or 10(6), will it not amount to a possession taken by State for the purpose of benefit to land owner under Section 3 of Repeal Act, 1999. Court observed that in 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 State Government, or Authorized Officer or Competent Authority. 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 land in question and that is the rationale behind Section 10(5) and 10(6) of Act, 1976. Having said so, Court said, that what would be position if for any reason Competent Authority or Government or Authorized Officer resorts to forcible dispossession of erstwhile owner even without exploring possibility of a voluntary surrender or delivery of such possession on demand. If a person is dispossessed without any notice under Section 10(5), he could have made a grievance based on Section 10(5), and seeks restoration of possession to him, no matter he could have upon such restoration be liable to be evicted under Sections 10(5) and 10(6) of the Act, 1976 upon his

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¶153

failure to deliver or surrender such possession. However, in reality, unless there was something that was inherently wrong so as to attract the process of taking over such possession, as the identity of land or boundaries thereof or any other similar nature going to root of the matter, requiring an adjudication, a person, who had lost his land by reason of same being declared surplus under Section 10(3), would not consider it worthwhile to agitate violation of Section 10(5) for he can well understand that even when Court may uphold his contention that procedure ought to be followed as prescribed, it may still be not enough for him to retain land for the authorities could, the very next day, dispossess him from the same by simply serving a notice under Section 10(5). Court said, in this backdrop, “ 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. ”

¶154

Court then examined this very argument from another angle and in para 16 said:

¶155

“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

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¶157

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.” (emphasis added)

¶158

Thereafter Court distinguished the judgment in State of U.P. Vs. Hari Ram (supra) on the ground that question, whether a dispossession in breach of Section 10(5) would vitiate the very act of dispossession was not an issue in that case. If owner of land has been dispossessed, as a matter of fact, such dispossession without 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 Repeal Act, 1999. This is the law laid down by Supreme Court in State of Assam Vs. Bhasker Jyoti Sarma (supra). It would be useful to reproduce observations of Court in para 17 of judgment as under:

¶159

“17. ….. 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 added)

¶160

Court further observed that for the purpose of

¶161

¶162

Section 3 of Repeal Act, 1999, it is the de facto dispossession which is relevant and not any other thing. If a person has been dispossessed and land has already vested under Section 10(3) of Act, 1976, Section 3 of Repeal Act, 1999 will not help erstwhile land owner so as to claim any benefit under Repeal Act, 1999.

¶163

Another matter came up before Court in State of U.P. and others Vs. Surendra Pratap and others, AIR 2016 SC 2712. Therein also again question of possession was examined by Court and in para 8 and 9 of judgment, it said:

¶164

“8. We have heard Mr. Irshad Ahmad, learned Additional Advocate General for the State in support of the appeal and Mr. Aarohi Bhalla, learned Advocate for respondent Nos.1 and 2. The record indicates that notification u/s 10(3) of the Act was published in the official gazette on 29.04.1986 and an appropriate notice u/s 10(5) of the Act was issued by the Competent Authority on 31.03.1993. These aspects of the matter are not disputed by respondent Nos.1 and 2 but in their submission, despite such notice u/s 10(5) of the Act, the possession was never taken over. The factum about taking over the possession finds clear mention in the possession certificate dated 20.08.1994 . Further, the objections preferred by respondent Nos.1 and 2 were dismissed vide order dated 30.06.1995 which order also records the fact that possession of the land already stood taken over. In the premises, all requisite actions contemplated under the Act were taken in accordance with law well before the enactment of the Repeal Act and the surplus vacant land stood vested with the State Government of which the possession was also taken over . The Writ Petition preferred in the year 2005, therefore, had no stateable claim and the High

¶165

¶166

Court was completely in error in accepting the submissions advanced on behalf of respondent Nos.1 and 2.

¶167

9. Moreover, in Civil Appeal Nos. 369-370 of 2016 (State of U.P. and Ors. v. Adarsh Seva Sahakari Ltd.) decided on 19.01.2016, this Court has observed that after the vesting of the surplus land with the State Government u/s 10(5) of the Act, if any transfer of the property in question is effected, such transfer would be void ab initio and the transferee would not be entitled to challenge the alleged inaction on part of the State Government or the Competent Authority in not taking possession in compliance with the provisions u/s 10(5) of the Act.” (emphasis added)

¶168

Considering the aforesaid judgment, a Division Bench of this Court in which one of us (Hon'ble Sudhir Agarwal,J.) is a member in Writ Petition No.33071 of 2015 (Raisuddin & 2 Ors. Vs. State of U.P. & 3 Ors.) decided on 18.12.2017 in paras 20 to 23 of the judgment said :

¶169

20. Possession if taken, even if there is some defect with regard to notice under Section 10(5) or 10(6) of Act, 1976 would not attract Section 3 of Repeal Act, 1999 is the view taken by Division Bench of this Court in Shiv Ram Singh Vs. State of U.P. and others, 2015(5) AWC 4918 and Polu and others Vs. State of U.P. and another (Writ Petition No. 20035 of 2013), decided on 03.11.2016. In Shiv Ram Singh (supra) we find that original record produced before Division Bench also shows compliance of directions of 1983 and this is evident from para 10 of judgment which reads as under:

¶170

“10. In the present case, the learned Chief Standing Counsel has produced the original file for the perusal of the Court. The material before the Court indicates that the Directions of 1983 were duly observed. Direction 3(2) envisages

¶171

¶172

that an order in Form ULC-II has to be sent to each land holder as prescribed under Section 10(5) and the date of issue and service of the order is to be entered in Column 8 of Form ULCI. This procedure has been complied and we may only note that a copy of the original ULC-II register has been produced for the perusal of the Court. Similarly, direction 3(3) contemplates that on possession of the excess vacant land being taken in accordance with the provisions of sub-section (5) or sub-section (6) of Section 10, entries will be made in a register in Form ULCIII. The original Form ULC-III has similarly been produced before the Court. Entries have been made in compliance with direction 3 both in ULC-II and ULC-III registers. In the present case, it is also clear from the record that on 14 February 1992, a communication was addressed by the Competent Authority to the Tehsildar drawing attention to an earlier letter dated 25 February 1987 and requesting that possession of the land be taken over. A copy of the letter dated 25 February 1987 forms part of the original record which was produced by the learned Chief Standing Counsel. On 25 June 1993, possession of the land was taken over. The possession receipt has been duly executed by the Naib Tehsildar and by the Kanoongo. In this view of the matter, we are unable to accept the contention of the petitioner that possession of the land was not taken over prior to the date of the Repeal Act.”

¶173

21. Court after having recorded finding that possession in fact was taken prior to 18.03.1999, denied benefit of Section 3 of Repeal Act, 1999.

¶174

22. We are also informed that Special Leave to Appeal (C) No. 29550 of 2015 (Shiv Ram Singh Vs. State of U.P. and others) against judgment in Shiv Ram Singh (supra) was dismissed by Supreme Court on 26.10.2015.

¶175

23. Thus the submission that dispossession of

¶176

¶177

petitioners, not valid, hence they must be deemed in actual physical possession cannot be accepted and stands rejected in view of above exposition of law.

¶178

Since, in the present case, neither factum of taking actual physical possession by Competent Authority under Ceiling Act has been fortified by placing any document nor factum of possession of KDA at any point of time has been shown, therefore, argument advanced by learned Standing Counsel on the basis of State of Assam (supra) will not help.

¶179

In view of above discussion, we have no hesitation in holding that in the light of exposition of law and also the facts on record noted above, respondents have miserably failed to prove that possession of disputed land was taken before the cut-off date under Repeal Act, 1999. That being so, provisions of Repeal Act 1999 would stand attracted in this case rendering entire earlier ceiling proceedings, ineffective and abated.

¶180

In the result, writ petition is allowed . It is held that possession of disputed land has not been taken by respondents, hence ceiling proceedings stood abated under Sections 3 and 4 of Repeal Act, 1999. Respondents, therefore, are restrained from interfering in possession of petitioner over disputed land.

¶181

Petitioner shall also entitle to cost, which we quantified to Rs.50,000/-

¶182

Order Date :- 19.12.2017 LN Tripathi

Smt. Savitri Devi v. State of U.P. and 2 Others

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Smt. Savitri Devi v. State of U.P. and 2 Others

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