Allowed

Ram Kumar Misra v. Competent Authority and Another

Allahabad HC9 Aug 2019WRIC/11150/2000

Case brief

AI extract

What is this about?

Writ petition against a 1981 declaration of 8258.21 sq. metres of the petitioner's land as excess vacant under the Urban Land (Ceiling and Regulation) Act, 1976. As possession had never been taken under Sections 10(5) or 10(6), and the 1999 Repeal Act protects holders not dispossessed, the petition was allowed and the ceiling proceedings held abated.

What did the court decide?

Petitioner entitled to retain possession of the excess vacant land; respondents restrained from interfering with or dispossessing him; costs of Rs. 50,000 payable by respondent nos. 1 and 2.

Ram Kumar Misra Vs Competent Authority and Another — Land Acquisition | Allahabad HC (2019)

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A.F.R.

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Reserved on: 11.7.2019

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Delivered on: 9.8.2019

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Court No. - 34

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Case :- WRIT - C No. - 11150 of 2000

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Petitioner :- Ram Kumar Misra Respondent :- Competent Authority and another Counsel for Petitioner :- Chandan Sharma,P.H. Vashishtha,S. Narain,Vijay Bahadur Singh,Vinod Shankar Tripathi Counsel for Respondent :- C.S.C., Ms. Subhash Rathi, Vineet Pandey

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Hon'ble Sudhir Agarwal,J. Hon'ble Rajeev Misra,J.

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(Delivered by Hon'ble Rajeev Misra,J )

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Ram Kumar Misra, the writ petitioner has filed present writ petition under Article 226 of the Constitution of India, challenging order dated 30.12.1981 (Annexure 1 to the writ petition), passed by respondent No.1 Competent Authority (Urban Land Ceiling ), Bareilly, whereby an area of 8258.21 Sq-meters of land of petitioner has been declared as excessvacant land and notice dated 24/25.1.2000 (Annexure-4 to the writ petition) also issued by respondent No.1 purported to be under Section 11 (8) of the Urban Land (Ceiling & Regulation) Act, 1976 (herienafter referred to as 'Act 1976') asking the petitioner to file his objections, if any, alongwith evidence before respondent-1 on or before 3.2.2000 to the proposed compensation in lieu of land belonging to petitioner being declared as excess-vacant land. Apart from aforesaid reliefs, petitioner has also prayed for a writ of mandamus commanding respondents not to dispossess petitioner from land in dispute.

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We have heard Sri Vijay Bahadur Singh, learned Senior Advocate assisted by Sri P.H. Vashishtha, learned counsel for petitioner, Mrs. Subhash Rathi, learned Additional Chief Standing Counsel for State-

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respondents and Sri Tejaswi Mishra, Advocate holding brief of Sri Vineet Pandey, learned counsel appearing for respondent no. 3 Bareilly Development Authority (hereinafter referred to as 'B.D.A').

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It transpires from record that petitioner is a recorded Tenure Holder of survey plot Nos. 587 area 0.0468 hectares, 588 area 0.333 hectares and 589 area 0.721 hectare, situate in village, Haroo Nagla, District Bareilly. 4. Act of 1976, came into force on 17.2.1976. By means of Act 1976, a ceiling limit regarding land which can be held by a Tenure Holder was provided. Section 4 of Act 1976 provides for different ceiling limits in different Urban Agglomerations falling in different categories. Section 6 mandates that every person who is holding land in excess of concerned ceiling limit shall file an statement before competent authority regarding land held by him. After the statement has been filed by Tenure Holder, competent authority under section 6 of Act 1976 after such survey, as it may deem fit to make, shall prepare a draft statement in respect of person who has filed the statement. Thereafter in compliance of section 8 of Act 1976, Competent Authority is required to issue a draft statement to Tenure Holder as regards vacant land held by him in excess of ceiling limit. In turn by virtue of sub section (4) of section 8, Tenure Holder is required to file his objections to draft statement within a period of 30 days from date of service of draft statement/notice under section 8 of Act 1976. After disposal of objections preferred by Tenure Holder, Competent Authority is required to decide the same. Thereafter as per section 9 of Act 1976, Competent Authority is required to prepare final statement determining vacant land held by a Tenure Holder in excess of ceiling limit. Section 9 further provides that final statement shall be served on Tenure Holder as per the procedure provided under section 8 (3) of Act 1976. Section 10 of Act 1976 contemplates that after service of final statement prepared under section 9 of Act 1976, Competent Authority shall cause a notification to be published in Official Gazette of the State concerned regarding land held by such person in excess of ceiling limit. The notification is to

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further state that such vacant land is to be acquired by concerned State Government and claims of all person interested in such vacant land may be made by them personally or by an Agent giving particulars of the nature of their interests in such land. Sub section (2) of section 10 provides for the disposal of objections preferred by such person who claims interest in the land proposed to be acquired. Sub section (3) of section 10 contemplates deemed acquisition of excess vacant land of Tenure Holder and vesting of same in the State Government free from all encumbrances. Sub section (4) of Section 10 puts a rider on the Tenure Holder whose land has been declared as excess vacant land or any other person not to transfer any excess vacant land or part thereof by way of sale, mortgage, gift, lease or otherwise. Sub section (5) of section 10 provides that after the land declared as excess-vacant land has vested in State Government, Competent Authority may by notice in writing order any person who may be in possession of excess-vacant land declared surplus, to surrender or deliver possession thereof to the State Government or to any person duly authorised by State Government in this behalf within 30 days from the date of service of notice issued under section 10 (5). Thus, section 10 (5) of Act 1976 contemplates voluntary surrender of possession upon notice by a Tenure Holder. Sub Section (6) of section 10 provides that upon failure to comply with an order made under sub section (5) of section 10 i.e. failure to surrender possession voluntarily, Competent Authority may forcibly take possession of land declared as excess-vacant land. Section 11 of Act 1976, provides for payment of compensation in lieu of land acquired upon declaration as excess-vacant land. Section 12 provides for the constitution of Urban Land Tribunal and an appeal to Urban Land Tribunal against an order passed by Competent Authority under section 11 of Act 1976. Section 33 of Act 1976 provides for an appeal against an order passed by competent authority except an order passed under section 11 or under sub-section (1) of Section 30.

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Accordingly, as per scheme of Act 1976 as noted herein above, petitioner submitted draft statement of land held by him before respondent-1 Competent Authority (Urban Land Ceiling) Bareilly on 14.9.1976 in terms of Section 6 (1) of Act 1976. After submission of draft statement by petitioner, survey of land held by petitioner was got conducted in terms of section 6 of Act 1976 and a survey report dated 26.9.1980 was submitted. On the basis of survey report dated 26.9.1980, a draft notice dated 27.4.1981, purported to be under section 8 of Act 1976 was issued to petitioner proposing to declare 8258.21 sq-meters of land belong to petitioner, as excess-vacant land. In response to aforesaid notice, petitioner submitted his objections dated 20.7.1981. According to petitioner, no land belong to him was liable to be declared as excessvacant land, as same is being used for agriculture purpose. In case, land shown as excess-vacant land in site plan in red colour is acquired, remaining land of petitioner shall be in fragments. Petitioner shall not be able to efficiently use the same. Except for the tenure comprised in survey plot nos. 587, 588 and 589, there is no other tenure of petitioner. Even in the aforesaid tenure, petitioner has only one half share and remaining one half share belongs to Jagdish Saran, son of Siya Ram. It was also pleaded that land shown in draft notice is agricultural land and therefore not liable to be declared as excess vacant land under Act 1976 as said Act does not apply to agricultural land. In the land proposed to be declared as excessvacant land, there situate a boring, well and jack fruit trees which have not been considered while issuing draft notice to petitioner. Subsequently, petitioner filed an application dated 25.9.1981, praying therein that he be granted benefit contemplated under section 20 of Act 1976 and accordingly land of petitioner be exempted from ceiling proceedings. However, inspite of the fact that petitioner filed his objections to draft statement, but his counsel did not appear before Competent Authority (Urban Land Ceiling) on the date of hearing. Consequently, respondent-1, Competent Authority (Urban Land Ceiling) Bareilly, vide order dated

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30.12.1981, declared an area of 8258.21 sq-meters of land, belong to petitioner, as excess-vacant land. It was further directed that notice under section (9) of Act 1976 be issued to petitioner followed by publication in terms of section 10 of Act 1976. The notification to be published in Official Gazette regarding excess-vacant land of petitioner was prepared by Competent Authority (Urban Land Ceiling), Bareilly, on 21.5.1982 and sent to State Government for publication, vide office memorandum dated 29.9.1983. The same was published in Official Gazette on 30.11.1985. Notice dated 23.1.1986 under section 10 (5) was issued to petitioner by respondent no.1, Competent Authority (Urban Land Ceiling) Bareilly, asking petitioner to hand over possession of land declared as excess-vacant land within a period of 30 days from the date of receipt of notice dated 23.1.1986. Perusal of aforesaid notice goes to show that same has not been served upon Tenure Holder as no endorsement to that effect is contained therein. Thus the notice under section 10 (5) of Act 1976 was neither directly served upon petitioner/Tenure Holder nor by way of substituted service. There is no notice under section 10 (6) of Act 1976 on record. What is there on record is a possession memo dated 26.2.1986 containing signatures of two witnesses namely Brij Bihari Gupta and Ashok Kumar Pathak and the person who took possession. The signature of person who gave possession and also of Tenure Holder are conspicuous by their absence. Ultimately notice dated 24.1.2000 under section 11 (8) of Act 1976 which provides for payment of compensation in lieu of land declared as excess vacant land was issued by Competent Authority (Urban Land Ceiling), Bareilly, after 18 years from the passing of order dated 30.12.1982. We have not found any document in original record regarding payment of compensation to petitioner in lieu of land declared as excess-vacant land.

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It may be noticed here that order dated 30.12.1981, passed by respondent No.1, Competent Authority (Urban Land Ceiling), under section 8 (4) of Act 1976 is appealable under section 33 of Act 1976, but

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as no appeal was filed by petitioner, consequential proceedings subsequent to an order passed under section 8 (4) of Act 1976 came into motion. Accordingly, a notice dated 24/25.1.2000 purported to be under section 11 (8) of Act 1976 came to be issued by respondent no.1, Competent Authority (Urban Land Ceiling) Bareilly, to petitioner asking him to file his objections, if any, alongwith evidence before the Competent Authority itself on or before 3.2.2000 to the proposed compensation, in lieu of the land of petitioner declared as excess-vacant land. Thus, the aforesaid notice has been issued to petitioner after a gap of 18 years from date of order dated 30.12.1981.

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The controversy involved in present writ petition is confined within the parameters of section 10 of Act 1976. For ready reference Section 10 of Act 1976 is reproduced herein below:-

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“ 10. Acquisition of vacant land in excess of ceiling limit.— (1) As soon as may be after the service of the statement under section 9 on the person concerned, the competent authority shall cause a notification giving the particulars of the vacant land held by such person in excess of the ceiling limit and stating that—

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(i) such vacant land is to be acquired by the concerned State Government; and

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(ii) the claims of all person interested in such vacant land may be made by them personally or by their agents giving particulars of the nature of their interests in such land,

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to be published for the information of the general public in the Official Gazette of the State concerned and in such other manner as may be prescribed.

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(2) After considering the claims of the persons interested in the vacant land, made to the competent authority in pursuance of the notification published under sub-section (1), the competent authority shall determine the nature and extent of such claims and pass such orders as it deems fit.

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(3) At any time after the publication of the notification under sub-section (1) the competent authority may, by notification published in the Official Gazette of the State concerned, declare that the excess vacant land referred to in the notification published under sub-section (1) shall, with effect from such date as may be specified in the declaration, be deemed to have been acquired by the State Government and upon the publication of such declaration, such land shall be deemed to have vested absolutely in the State Government free from all encumbrances with effect from the date so specified.

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(4) During the period commencing on the date of publication of the notification under sub-section (1) and ending with the date specified in the declaration made under sub-section (3)—

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(i) no person shall transfer by way of sale, mortgage, gift, lease or otherwise any excess vacant land (including any part thereof) specified in the notification aforesaid and any such transfer made in contravention of this provision shall be deemed to be null and void; and

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(ii) no person shall alter or cause to be altered the use of such excess vacant land.

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(5) Where any vacant land is vested in the State Government under subsection (3), the competent authority may, by notice in writing, order any person who may be in possession of it to surrender or deliver possession thereof to the State Government or to any person duly authorised by the State Government in this behalf within thirty days of the service of the notice.

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(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 .

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Explanation.—In this section, in sub-section (1) of section 11 and in sections 14 and 23, “State Government”, in relation to—

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(a) any vacant land owned by the Central Government, means the Central Government;

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(b) any vacant land owned by any State Government and situated in the Union territory or within the local limits of a cantonment declared as such under section 3 of the Cantonments Act, 1924 (2 of 1924), means that State Government.”

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(Emphasis added)

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In order to give effect to the provision of section 10 (5) and section 10 (6) of Act 1976, State Government in exercise of powers under section 35 of Act 1976 issued directions for taking possession of land declared as excess-vacant land by Competent Authority. The same are reproduced herein under:-

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“The Uttar Pradesh Urban Land Ceiling (Taking of Possession Payment of Amount and Allied Matters) Directions, 1983 (Directions issued by the State Government under Section 35 of the Act, 1976):

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“In exercise of the powers under Section 35 of the Urban Land (Ceiling and Regulation Act, 1976 (Act No.33 of 1976), the Governor is pleased to issue the following directions relating to the powers and duties of the Competent Authority in respect of amount referred to in Section 11 of the aforesaid Act to the person or persons entitled thereto:

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1. Short title, application and Commencement – These directions may be called the Uttar Pradesh Urban Land Ceiling (Taking of Possession Payment of Amount and Allied Matters Directions, 1983)

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(2). The provisions contained in this direction shall be subjected to the provisions of any directions or rules or orders issued by the Central

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Government with such directions or rules or orders.

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(3). They shall come into force with effect from the date of publication in the gazette.

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2. Definitions:-

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3. Procedure for taking possession of vacant Land in excess of Ceiling Limit- (1) The Competent Authority will maintain a register in From No.ULC -1 for each case regarding which notification under sub-section (3) of Section 10 of the Act is published in the Gazette.

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4. (2) An order in Form No.ULC-II will be sent to each landholder as prescribed under sub-section (5) of Section 109 of the Act and the date of issue and service of the order will be entered in Column 8 of Form No.ULC-1.

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(3) On possession of the excess vacant land being taken in accordance with the provisions of sub-section (5) or sub-section (6) of Section 10 of the Act, entries will be made in a register in Form ULC-III and also in Column 9 of the Form No.ULC-1. The Competent Authority shall in token of verification of the entries, put his signatures in column 11 of Form No.ULC-1 and Column 10 of Form No.ULC-III.

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Form No.ULC-1

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Register of Notice under Section 10-(3) and 10(5)

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1	2	3	4	5	6	7	8	9	10	11
Sl. No.	Sl. No. of register of receipt Sl. No. of register of taking possession	Case number	Date of Notific ation under Section 10(3)	Land to be acquired Village Mohali	Date of taking over possession	Remarks	Signature of competent authority

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Form NO. ULC-II

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Notice order u/s 10(5) (See clause (2) of Direction (3) In the Court of Competent Authority

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U.L.C. …………… No………………… Date ………………

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Sri/Smt………………………….T/o ………………………………….

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In exercise of the powers vested under section 10(5) of the Urban Land (Ceiling and Regulation) Act, 1976 (Act No.33 of 1976, you are hereby informed that vide Notification No……. dated ….. under section 10 (1) published in Uttar Pradesh Gazette dated …… following land has vested absolutely in the State free from all encumbrances as a consequence Notification under section 10(3) published in Uttar Pradesh Gazette dated ……. Notification No……… dated …. With effect from ………. you are hereby ordered to surrender or deliver the possession of

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the land to the Collector of the District authorised in this behalf under Notification No.324/II-27- U.C.77 dated 9-2-1977, published in the gazette, dated 12-3-1977, within thirty days from the date of receipt of this order otherwise action under sub-section (6) of Section 10 of the Act will follow.

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	Description of	Vacant Land
Location	Khasra No.	Area	Remarks
	indentification
1	2	3	4

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Competent Authority …………………………. …………………………. Dated..……………………….. No.........

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Copy forwarded to the Collector ………… with the request that action for immediate taking over of the possession of the above detailed surplus land and its proper maintenance may, kindly be taken an intimation be given to the undersigned along with copy of the certificate to verify.

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Competent Authority

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(Emphasis added)

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Act 1976 came to be repealed by “The Urban Land (Ceiling and Regulation) Repeal Act, 1999 (Act 15 of 1999)” (hereinafter referred to as “Act 1999”). Repeal Act protected rights of Tenure Holders whose land was declared as excess-vacant land provided possession thereof had not been taken. Act 1999 reads as under:-

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“THE URBAN LAND ( CEILING AND REGULATION ) REPEAL ACT, 1999

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[18^th March, 1999]

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An Act to repeal the Urban Land (Ceiling and Regulation ) Act 1976.

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Be it enacted by Parliament in the Fiftieth Year of the Republic of India as follows:-

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Short title, application and commencement. (1) This Act may be called the Urban Land (Ceiling and Regulation) Repeal Act, 1999.

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(2) It applies in the first instance to the whole of the State of Haryana and Punjab and to all the Union territories; and it shall apply to such other State which adopts this Act by resolution passed in that behalf under clause (2) of article 252 of the Constitution.

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(3) It shall be deemed to have come into force in the States of Haryana and Punjab and in all the Union territories on the 11th day of January, 1999 and in other other State which adopts this Act under clause (2) of article 252 of the Constitution on the date of such adoption; and the reference to repeal of the Urban Land (Ceiling and Regulation) Act, 1976 shall, in relation to any State or Union territory, mean the date on which this Act comes into force in such State or Union territory.

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Repeal of Act 33 of 1976- The Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the principal Act) is hereby repealed.

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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;

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(b) the validity of any order granting exemption under sub-section (1) of section 20 or any action taken thereunder, notwithstanding any judgment of any court to the contrary;

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(c) any payment made to the State Government as a condition for granting exemption under sub-section (1) of section 20. (2) Where-

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(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

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(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.

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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 other authority shall abate:

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Provided that this section shall not apply to the proceedings relating to sections 11, 12, 13 and 14 of the principal Act in so far 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.

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Repeal and saving (1) The Urban Land (Ceiling and Regulation) Repeal Ordinance, 1999 (Ord. 5 of 1999) is hereby repealed.

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(2) Notwithstanding such repeal, anything done or any action taken under the said Ordinance shall be deemed to have been done or taken under the corresponding provisions of this Act.”

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Instant writ petition was filed on 01.03.2000. It came up for admission on 03.03.2000 and this Court passed following interim order;-

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“Heard Sri Shyam Narain, learned counsel for the petitioner as

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well as learned Standing Counsel.

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Learned counsel for the petitioner has pointed out that the land which was declared to be surplus cannot be acquired in view of section 5 of the Urban Land (Ceiling And Regulation) Act, 1976.

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Let the counter affidavit be filed by the respondents within six weeks.

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List this case after six weeks.

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In the meantime, if the petitioner has not already been dispossessed from the surplus land, his possession thereon shall not be disturbed.”

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In compliance of interim order dated 03.03.2000, affidavits were exchanged between the parties. The writ petition came to be heard by a Division Bench of this Court on 31.5.2019, where it passed following order:-

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“ Sri Mohan Ji Srivastava, learned Standing Counsel, has produced the original record before us.

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“The original record does not show that the notice under Section 10(5) of the Urban Land (Ceiling and Regulation) Act, 1976 was issued to the petitioner as there is no remark about the service of notice. It has also been pointed out that in the counter affidavit the respondents have not made any assertion regarding service of notice under Section 10(5) and 10(6) of the said Act.

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Learned Additional Advocate General Sri M.C. Chaturvedi has pointed out that the land in question has been transferred to the Bareilly Development Authority but the petitioner has not impleaded the Bareilly Development Authority as one of the respondents in the writ petition.

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Although we do not find any document in the original record to indicate that the State has transferred the land to the Bareilly Development Authority, but in the interest of justice we grant time to the learned counsel for the petitioner to implead the Bareilly Development Authority as one of the respondents.

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Learned counsel for the petitioner submits that the petitioner is still in possession.

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Needless to say that the interim order dated 03rd March, 2000 shall continue until further orders.

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Put up this case on 10th July, 2019 in the additional cause list.

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The original record is returned to Sri Mohan Ji Srivastava, learned Standing Counsel.”

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(Emphasis added)

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In compliance of order dated 31.5.2019, B.D.A was duly impleaded as respondent No. 3 in the writ petition.

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Mr. Vijay Bahadur Singh, learned senior counsel appearing for

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petitioner has fairly conceded that he does not wish to press the writ petition in respect of prayers 1 and 2. The writ petition be confined to prayer No. 3 alone in view of Repeal Act of 1999.

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According to learned Senior Counsel, petitioner being in actual physical possession of entire tenure held by him, cannot be dispossessed from part of the same which has been declared as excess-vacant land. Reliance is placed upon section 3 (2) (a) of Repeal Act, 1999, which saves the possession of such Tenure Holders whose land has been declared as excess-vacant land, but possession thereof has not been taken. He further submits that section 10 (3) of Act 1976 speaks of vesting but the possession of land so vested is provided under section 10 (5) and 10 (6) of Act 1976. Mere vesting of land under section 10 (3) by itself is not sufficient to deprive Tenure Holder of his right to possession of land declared as excess-vacant land. Until and unless possession of land declared as excess-vacant land has been voluntarily surrendered by Tenure Holder in terms of section 10 (5) or forcibly taken under section 10 (6) of the Act 1976, Tenure Holder cannot be deprived of his right to retain possession of land declared as excess-vacant land. He further submitts that there is nothing on record to show that petitioner has been dispossessed from land declared as excess-vacant land or the land of petitioner declared as excess-vacant land has been transferred to B.D.A., at any point of time.

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It is the submission of learned Senior Counsel that from pleadings exchanged between the parties, it is clear that Competent Authority (Urban Land Ceiling), Bareilly, vide order dated 30.12.1981 declared an area of 8258.21 square metre of land belong to petitioner as excess-vacant land. However, notice under section 10 (5) of Act 1976 was issued to petitioner/Tenure Holder on 23.1.1986, but the same does not contain any endorsement regarding service of same upon petitioner directly or by substituted service. There is no notice under section 10 (6) of Act, 1976 on record. As such, he submits that no notice under section 10 (6) of Act,

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1976 was ever issued to petitioner. He thus concludes that neither petitioner voluntarily surrendered possession of land declared as excessvacant land nor possession thereof was forcibly taken from petitioner.

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However, respondents have relied upon a possession memo dated 26.2.1986 to allege that possession of land declared as excess-vacant land was taken by Competent Authority on 26.2.1986. Perusal of possession memo goes to show that it has been signed by the person who has taken possession and two witnesses namely, Brij Bahadur Gupta and Ashok Kumar Pathak. However, name of the person who gave possession is neither mentioned nor the possession memo bears his signature. It does not even contain signatures of petitioner. The parentage and address of two witnesses have also not been mentioned. As such possession of land declared as excess-vacant land was never forcibly taken from petitioner. He thus submits that petitioner is entitled to retain possession of land declared as excess-vacant land as possession of same was never taken from petitioner. As such, prayer-3 made in the writ petition, whereby a writ of mandamus has been prayed commanding respondents not to dispossess petitioner from land in dispute is liable to be allowed.

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Mrs. Subhash Rathi, learned Additional Chief Standing Counsel, opposing the contentions raised by learned Senior Counsel has submitted that under scheme of Act 1976, once vesting has taken place in favour of State Government under section 10 (3) of Act 1976, then in that event by operation of law, State Government becomes absolute owner of land declared as excess-vacant land. In such eventuality, question of possession is only symbolic. She further submits that part of land belong to petitioner was declared as excess-vacant land, vide order dated 30.12.1981. The writ petition has been preferred in the year 2000 i.e. after 19 years from the date of passing of order dated 30.12.1981, but there is nothing on record to establish continuous physical possession of petitioner over land declared as excess-vacant land. She further submits that once land declared as excess-vacant land, has vested in State free from all

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encumbrances, possession if any of petitioner over the land already declared as excess-vacant land will be in nature of adverse possession. It is well settled that plea of adverse possession cannot be pleaded against State and on this ground also the petitioner is not entitled to relief No. 3 prayed for in the writ petition. Lastly, she submits that possession memo dated 26.2.1986 clearly proves that possession of land declared as excessvacant land has already been taken. Placing reliance upon a Division Bench judgement of this Court in Shiv Ram Singh Vs. State of U.P. And others, 2015 (5) AWC 4918, she submits that irrespective of the fact whether possession has been taken rightfully or wrongfully, it will make no difference. Once petitioner whose land has been declared as excess-vacant has been dispossessed from the same, he cannot claim benefit of section 3 (2) (a) of Repeal Act, 1999; as such petitioner is not entitled to any relief prayed for.

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Mr. Tejaswi Misra, Advocate holding brief of Mr. Vineet Pandey, learned counsel for respondent no.3, B.D.A. has submitted that land of petitioner which was declared as excess-vacant land, vide order dated 30.12.1981 was never transferred to Bareilly Development Authority.

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On the basis of respective arguments made by counsel for the parties, following issues arise for determination. (a) Whether vesting of land declared as excess-vacant land under section 10 (3) of Act 1976 is complete, and question of possession is immaterial.

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(b) What is the combined effect of Act 1976 and 1983 directions issued by State Government.

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(c) Whether a Tenure Holder is entitled to retain possession of land declared as excess-vacant land, if no possession of same has been taken by Competent Authority in terms of Section 10 (5) or Section 10 (6) of Act 1976.

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All the three issues arising for consideration are inter linked and

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therefore, being dealt with together. We have already referred to the scheme of Act 1976. Section 10 (3) of the Act speaks of acquisition by State Government and upon publication of such declaration, such land shall be deemed to have vested absolutely in State Government free from all encumbrances with effect from the date so specified. Admittedly, in the present case, gazette notification was made on 30.11.1985. Thus, the question which emerges for consideration is, whether on 30.11.1985, the excess vacant land of petitioner stood vested in State Government free from all encumbrances or possession of same was required to be taken by competent authority in terms of section 10 (5) and 10 (6) of Act 1976 and in case possession was not taken whehter the petitioner is entitled to retain possession.

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The issue involved is no longer res-integra,. The same came to be considered in State of U.P. Vs. Hariram, 2013 (4) SCC 280 . Mr. V.B. Singh, learned Senior Advocate, has heavily relied upon aforesaid judgement in support of his submission that possession of excess vacant land if not taken under section 10 (5) or 10 (6) of Act 1976, then the Tenure Holder is entitled to benefit of Repeal Act 1999. Court in paragraphs 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 39, 42 has said:

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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.

¶126

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)

¶127

¶128

"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."

¶129

23. In Jugalkishore Saraf v. Raw Cotton Co. Ltd. [AIR 1955 SC 376] , S.R. Das, J. stated: (AIR p. 381, para 6)

¶130

"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."

¶131

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".

¶132

25. The word "vest" or "vesting" has different meanings. Legal Glossary, published by the Official Language (Legislative) Commission, 1970 Edn. at p. 302:

¶133

"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)

¶134

Vesting order.—An order under statutory authority whereby property is transferred to and vested, without conveyance in some person or persons;

¶135

26.Black's Law Dictionary (6th Edn.), 1990 at p. 1563:

¶136

"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."

¶137

27.Webster's Third New International Dictionary, of the English Language unabridged, Vol. III S to Z at p. 2547 defines the word "vest"

¶138

¶139

as follows:

¶140

"'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)

¶141

(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.]"

¶142

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 : (188185) 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)

¶143

"… 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."

¶144

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.

¶145

Voluntary surrender

¶146

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

¶147

¶148

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)

¶149

"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."

¶150

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.

¶151

33. Before we examine sub-section (5) and sub-section (6) of Section 10, let us examine the meaning of sub-section (4) of Section 10 of the Act, which says that during the period commencing on the date of publication under sub-section (1), ending with the day specified in the declaration made under sub-section (3), no person shall transfer by way of sale, mortgage, gift or otherwise, any excess vacant land, specified in the notification and any such transfer made in contravention of the Act shall be deemed to be null and void. Further, it also says that no person shall alter or cause to be altered the use of such excess vacant land. Therefore, from the date of publication of the notification under subsection (1) and ending with the date specified in the declaration made in sub-section (3), there is no question of disturbing the possession of a person, the possession, therefore, continues to be with the holder of the land.

¶152

Peaceful dispossession

¶153

34. Sub-section (5) of Section 10, for the first time, speaks of "possession" which says that where any land is vested in the State Government under sub-section (3) of Section 10, the competent authority may, by notice in writing, order any person, who may be in possession of it to surrender or transfer possession to the State Government or to any other person, duly authorised by the State Government.

¶154

35. If de facto possession has already passed on to the State Government by the two deeming provisions under sub-section (3) of Section 10, there is no necessity of using the expression "where any land is vested" under sub-section (5) of Section 10. Surrendering or transfer of possession under sub-section (3) of Section 10 can be voluntary so that the person may get the compensation as provided under Section 11 of the Act early. Once there is no voluntary surrender or delivery of possession, necessarily the State Government has to issue notice in writing under sub-section (5) of Section 10 to surrender or deliver possession. Subsection (5) of Section 10 visualises a situation of surrendering and delivering possession, peacefully while sub-section (6) of Section 10

¶155

¶156

contemplates a situation of forceful dispossession.

¶157

Forceful dispossession

¶158

36. The Act provides for forceful dispossession but only when a person refuses or fails to comply with an order under sub-section (5) of Section 10. Sub-section (6) of Section 10 again speaks of "possession" which says, if any person refuses or fails to comply with the order made under sub-section (5), the competent authority may take possession of the vacant land to be given to the State Government and for that purpose, force—as may be necessary—can be used. Sub-section (6), therefore, contemplates a situation of a person refusing or fails to comply with the order under sub-section (5), in the event of which the competent authority may take possession by use of force. Forcible dispossession of the land, therefore, is being resorted to only in a situation which falls under sub-section (6) and not under sub-section (5) of Section 10. 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), then "forceful dispossession" under sub-section (6) of Section 10.

¶159

37. The requirement of giving notice under sub-sections (5) and (6) of Section 10 is mandatory. Though the word "may" has been used therein, the word "may" in both the sub-sections has to be understood as "shall" because a court charged with the task of enforcing the statute needs to decide the consequences that the legislature intended to follow from failure to implement the requirement. Effect of non-issue of notice under sub-section (5) or sub-section (6) of Section 11 is that it might result in the landholder being dispossessed without notice, therefore, the word "may" has to be read as "shall".

¶160

39. The abovementioned directives make it clear that sub-section (3) takes in only de jure possession and not de facto possession, therefore, if the landowner is not surrendering possession voluntarily under subsection (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.

¶161

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.

¶162

The State Government issued a Government Order No. 2228@vkB&6&15& 124 ;wlh@13 dated 29^th September, 2015 accepting judgment of in State of Uttar Pradesh Vs. Hari Ram (Supra) and

¶163

¶164

necessary directions were issued to take steps for compliance and decision in terms of the directions in the case of State of Uttar Pradesh Vs. Hari Ram (Supra). Copy of the said Government Order dated 29.9.2015 is quoted herein below:-

¶165

la[;k & 2228@vkB&6&15&124 ;wlh@13

izs"kd]

iu/kkjh ;kno

lfpo]

mRrj izns'k 'kkluA

lsok es]

ftykf/kdkjh]

xksj[kiqj] okjk.klh] bykgkckn] y[kuÅ] dkuiqj

¶173

vkxjk] esjB] eqjknkckn] vyhsx<] cjsyh] lgkjuiqjA

¶174

vkokl ,oa 'kgjh fu;kstu vuqHkkx&6 y[kuÅ % fnukad 29 flrEcj 2015

¶175

fo"k; uxj Hkwfe ¼vf/kdre lhek ,oa fofu;eu½ fujlu vf/kfu;e] 1999 rrdze eas fuxZr 'kklukns'k rFkk ek0 mPpre U;k;ky; ds fu.kZ; fnukad 11-03-2013 ds lEcU/k e a sA

¶176

&&&&&&

¶177

egksn;]

¶178

mi;qDZr fo"k; ij eq>s ;g dgus dk funsZ'k gqvk gS fd Hkkjr ljdkj ds vf/kfu;e la[;k&15@1999 fnukad 18-03-1999 }kjk uxj Hkwfe ¼vf/kdre lhek ,oa fofu;eu½ vf/kfu;e 1976 dks fujflr djrs gq, uxj Hkwfe ¼vf/kdre lhek ,oa fofu;eu½ fujlu vf/kfu;e 1999 izk[;kfir fd;k x;k ftlds dze esa 'kklukns'k la[;k& 502@9& u0 Hkw0&99&21;w0 lh0@99] fnaukad 31-03-1999 }kjk mDr fujlu vf/kfu;e dks mRrj izns'k jkT; esa vaxhd`r fd;k x;kA fujlu vf/kfu;e 1999 dh /kkjk&3 es ;g izkfo/kku gS fd ewy vf/kfu;e dk fujlu fuEufyf[kr dks izHkkfor ugha djsxk&

¶179

¼1½ ¼d½ /kkjk&10 dh mi/kkjk& ¼3½ ds v/khu ,slh fjDr Hkwfe dk fufgr gksuk] ftldk dCtk jkT; ljdkj ;k jkT; ljdkj }kjk bl fufeRr lE;d :i

¶180

ls vf/kd`rd fdlh O;fDr ;k l{ke izkf/kdkjh us ys fy;k gSA

¶181

¼[k½ /kkjk& 20 dh mi/kkjk& ¼1½ ds v/khu NwV nsus laca/kh fdlh vkns'k ;k mlds v/khu dh x;h fdlh dk;Zokgh dh fdlh U;k;ky; ds fdlh fu.kZ; esa mlds foL) fdlh ckr ds gksrs gq, Hkh fof/kekU;rk%

¶182

¼x½ /kkjk& 20 dh mi/kkjk& ¼1½ ds v/khu iznku dh x;h NwV dh 'krZ ds :i es jkT; ljdkj dks fd;k x;k dksbZ lank;%

¶183

¼2½ tgka&

¶184

¶185

¼d½ ewy vf/kfu;e dh /kkjk&10 dh mi/kkjk ¼3½ ds v/khu fdlh Hkwfe dks jkT; ljdkj es fufgr gksuk ekuh x;h gS fdUrq ftldk dCtk jkT; ljdkj ;k jkT; ljdkj }kjk bl fufeRr lE;d :i ls izkf/kd`r fdlh O;fDr ;k l{ke izkf/kdkjh }kjk ugh fy;k x;k % vkSj

¶186

¼x½ ,slh fdlh Hkwfe ds ckcr ftlds fy, jkT; ljdkj }kjk fdlh jde dk lank; dj fn;k x;k gS rc rd izR;kofrZr ugh dh tk; vkSj tc rd fd jkT; ljdkj dks lank; dh x;h jde dk ;fn dksbZ gks] izfrnk; ugh dj fn;k tkrkA

¶187

mDr ds dze es 'kklukns'k la[;k&777@9u0Hkw0&135 ;w0 lh0@99 fnukad 09-02-2000] 'kklukns'k la[;k &1623@9& u0Hkw0&2000 fnukad 09-08-2000 ,oa 'kklukns'k la[;k& 190@9&vk&6& 2001 fnukad 24-01-2001 fuxZr fd;s x;s ftles eq[; :i ls ;g O;oLFkk dh xbZ fd ewy vf/kfu;e /kkjk &8 ¼4½ ds vUrxZr tks Hkwfe fjDr ?kksf"kr dh xbZ Fkh vkSj /kkjk&10 ¼3½ ds vUrxZr jkT; es fufgr gks pqdh Fkh ,oa /kkjk&10 ¼5½ dh dk;Zokgh dk vkns'k gks pqdk Fkk ijUrq bl Hkwfe ij jkT; ljdkj dk dCtk izkIr ugh gks ldk Fkk] ,slh Hkwfe ds lEcU/k es ewy Hkw/kkjd dks vnk dh xbZ /kujkf'k Hkw/kkjd }kjk okil djus ij Hkwfe ewy Hkw/kkjd dks izR;kofrZr dh tk ldrh gS fdUrq vnk dh xbZ /kujkf'k Hkw& /kkjd }kjk okil u djus dh n'kk esa Hkwfe ij dCtk fd;s tkus ds lEcU/k es fof/k vuqlkj vfxze dk;Zokgh vey es yk;h tk;A ;g Hkh O;oLFkk dh xbZ fd ftl Hkwfe ds lEcU/k es /kkjk&10 ¼5½ dh dk;Zokgh ds mijkUr /kkjk&10 ¼6½ dh dk;Zokgh iwoZ gks pqdh gS vkSj Hkwfe ij jkT; ljdkj }kjk dCtk fy;k tk pqdk gS og ljIyl Hkwfe vfUre :i ls jkT; ljdkj esa fufgr ekuh tk;sxhA

¶188

3- uxj Hkwfe lhekjksi.k& xksj[kiqj] okjk.klh] bykgkckn] y[kuÅ] dkuiqj] vkxjk] esjB] eqjknkckn] vyhsx<] cjsyh] lgkjuiqj es yfEcr vcZu lhfyax izdj.kksa dk leqfpr :i ls fuLrkj.k us gksus dh fLFkfr es Hkw&/kkjdksa@okfn;ksa }kjk ek0 mPp U;k;ky; esa vf/kd la[;k es fjV ;kfpdk;s ;ksftr dh tk jgh gSA uxj cLrh dk;kZy;ks }kjk fjV ;kfpdkvks es foHkkxh; i{k le;kUrxZr lk{;ks lfgr izcyrk ls izLrqr u fd;s tkus ds dkj.k ek0 U;k;ky; }kjk ikfjr vkns'kksa ds dze es 'kklu dks vleatliw.kZ fLFkfr dk lkeuk djuk iM+ jgk gSA

¶189

4- vcZu lhfyax ds vU; izdj.k es jkT; ljdkj }kjk ek0 mPppe U;k;ky; ubZ fnYyh es fo'ks"k vuqefr ;kfpdk la[;k&12960@2008 mRrj izns'k jkT; cuke gjhjke ;ksftr dh x;hA dkykUrj es vU; tuinksa ds vcZu lhfyax ls lacf/kr izdj.kksa es ;ksftr fo'ks"k vuqefr ;kfpdk;s mDr fo'ks"k vuqefr ;kfpdk ls Dyc dh x;hA mDr fo'ks"k vuqefr ;kfpdk la[;k&12960@2008 rFkk mlls Dyc vU; fo'ks"k vuqefr ;kfpdkvks esa ikfjr ek0 mPpre U;k;ky; ds fu.kZ; fnukad 11-03-2013 es vcZu lhfyax ls lacf/kr izdj.kksa es ekxZn'kZd fl)kUr izfrikfnr fd;s x;s gSA fu.kZ; fnukad 11-03-2013 dk egRoiw.kZ ,oa fdz;kRed va'k fuEuor gS%&

¶190

izLrj& 39

¶191

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. 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 At.

¶192

¶193

The Stage 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 3 of the Repeal Act.

¶194

izLrj& 40

¶195

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 3 of the Repeal Act. However, there will be no ore as to cost.

¶196

5- uxj Hkwfe ¼vf/kdre lhek ,oa fofu;eu½ fujlu vf/kfu;e] 1999 esa fofgr izkfo/kku rFkk rRdze es fuxZr 'kklukns'k fnukad 09-02-2000] 'kklukns'k fnukad 0908-2000 ,oa 'kklukns'k fnukad 24-01-2001 Lor% Li"V gSA fo'ks"k vuqefr ;kfpdk la[;k&12960@2008 mRrj izns'k jkT; cuke gjhjke rFkk mlls Dyc vU; fo'ks"k vuqefr ;kfpdkvks es ikfjr ek0 mPpre U;k;ky; ds fu.kZ; fnukad 11-03-2013 esa mfYyf[kr fl)kUr@vkns'k Hkh Lor% Li"V gSA

¶197

6- d`i;k uxj Hkwfe ¼vf/kdre lhek ,oa fofu;eu½ fujlu vf/kfu;e] 1999 rFkk mDr 'kklukns'k fnukad 09-02-2000 ] 'kkluns'k fnukad 09-08-2000 ,oa 'kklukns'k fnukad 24-01-2001 es fofgr O;oLFkk] fo'ks"k vuqefr ;kfpdk la[;k&12960@2008 mRrj izns'k jkT; cuke gjhjke es ikfjr ek0 mPpre U;k;ky; ds fu.kZ; fnukad 1103-2013 esa mfYyf[kr fl)kUrks@vkns'kksa ds vkyksd es yfEcr izdj.kksa es Legal ingredients ns[krs gq, vko';d dk;Zokgh dh tk;A

Hkonh;

¼iu/kkjh ;kno½

lfpo

la[;k ,oa fnukad rnSoA

¶202

izfrfyfi fuEufyf[kr dks lwpukFkZ ,oa vko';d dk;Zokgh gsrq izsf"krA

¶203

1- funs'kd uxj Hkwfe lhekjksi.k ] m0 iz0 tokgj Hkou& y[kuÅ

¶204

2- l{ke izkf/kdkjh uxj Hkwfe lhekjksi.k xksj[kiqj] okjk.klh] bykgkckn] y[kuÅ] dkuiqj] vkxjk] esjB] eqjknkckn] vyhsx<] cjsyh] lgkjuiqjA

¶205

3- eq[; LFkk;h vf/koDrk ek0 mPp U;k;ky;] bykgkckn

¶206

4- xkMZ QkbZyA

vkKk ls

¼dYyw izlkn f}osnh½

mi lfpoA”

We could not find any material in original record which could establish that actual possession of excess vacant land was taken from petitioner as per procedure provided under G. O. Dated 29.09.2015. Thus, when the case in hand is examined in the light of proposition laid down in State of U.P. Vs. Hariram (supra); Apex Court, 1983 directions and Government Order dated 29.9.2015, the inevitable conclusion is that possession of land declared as excess-vacant land was never taken from petitioner, either under section 10 (5) or section 10 (6) of Act 1976. Consequently, we have no hesitation to hold that petitioner is entitled to retain possession of land declared as excess-vacant land.

¶212

As noted above, the alleged possession memo dated 26.2.1986, relied upon by State-respondents in proof of the fact that possession of land declared as excess-vacant land has already been taken, we find from record that neither there is ULC Form-2 or ULC Form 3 on record, which is condition precedent under the 1983 directions. Furthermore, a Division Bench of this Court in Mohammad Suhaif and Another. V/s. State of U.P. And Others, 2019 (5) ADJ 764(DB) has held that under the Rules, it is only Collector, who has been authorized to take possession. No authority for further sub delegation is vested in the Collector either under Act 1986 or under the 1983 directions issued by State Government. The Division Bench further observed that it is well settled that a delegatee cannot sub delegate his power without there being specific authority, as held in State of Bombay Vs. Shivabalak, AIR 1965 SC 661 and N.G.E.F. Vs. Chandra, 2005 (8) SCC 219. In the present case, possession memo does not bear signature of Collector, as there is no description of Authority who is alleged to have taken possession.

¶213

From the discussion made herein above, it is explicitly clear that part of land belong to petitioner was declared as excess-vacant land vide order of Competent Authority (Urban Land Ceiling) Bareilly dated 30.12.1981. but pursuant to aforesaid order, possession of land declared as excess-

¶214

¶215

vacant land was neither voluntarily surrendered by petitioner in terms of section 10 (5) of the Act, nor forceful possession of same was taken by Collector, Bareilly under section 10 (6) of Act 1976.

¶216

Record further shows that there is no ULC Form-2 and ULC Form3, which further goes to establish that no exercise to take possession as per the 1983 directions were initiated by State-respondents. The alleged possession memo relied upon by the State, cannot be of any help as the same is contrary to principles laid down in Banda Development Authority, Banda Vs. Motilal Agarwal and Others, 2011 (5) SCC 394 . Thus, petitioner being in continuous actual physical possession of land declared as excess-vacant land is clearly entitled to the benefit of Repeal Act of 1999.

¶217

There is another aspect of the matter which requires to be dealt with. The word 'acquired' used in Section 10 (3) and taking of 'possession' as contemplated under section 10 (5) and 10 (6) of Act 1976 came to be considered by a Division Bench in Rashid Vs. State of U.P. and Other, 2017 (1) ADJ 425 . The following was observed by Division Bench in paragraphs 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21:-

¶218

“ 8. Before discussing relevant material on record in the light of question, there was actual possession taken by respondents of disputed land. It would be appropriate to have a bird's eye view as to how it should be determined whether possession of land actually has been taken or not.

¶219

9. In context of Land Acquisition Act, 1894 (hereinafter referred to as 'Act, 1894'), the question as to when it can be said that actual possession of land has been taken by State, has been considered by Courts time and again.

¶220

10. In the chain of precedents we first come to the Supreme Court's authority in 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 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

¶221

¶222

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.

¶223

11. The majority judgment delivered by Hon'ble Bhagwati, J. disagreeing with Hon'ble Untwalia, 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. The Court further said:

¶224

"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 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."

¶225

(emphasis added)

¶226

12. In General Manager, Telecommunication and 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:

¶227

"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."

¶228

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

¶229

"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

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¶231

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."

¶232

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

¶233

"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".

¶234

(emphasis added)

¶235

15. 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 of actual possession was raised. The Court relying on memorandum of 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 for allotment of an alternative site, held that there was no question of requesting for alternative site if according to respondents the title still vested in him and has not been vested in the State by taking possession. Paras 9 and 10 of the judgment relevant for our purpose is reproduced as under:

¶236

"9. It is settled law by series of judgement of this Court that one 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.

¶237

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......."

¶238

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

¶239

17. In P.K. Kalburqi Vs. State of Karnataka, 2005(12) SCC 489, Court

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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.

¶242

18. 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 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:

¶243

"...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."

¶244

19. Similarly in Brij Pal Bhargava and others Vs. State of U.P. and others, 2011(5) SCC 413 accepting 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.

¶245

20. 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:

¶246

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

¶247

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

¶248

(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.

¶249

(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.

¶250

(iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures on such document.

¶251

(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

¶252

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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."

¶254

21. In Jagdish and others Vs. State of U.P. and others, 2008(5) ADJ 5, (a Division Bench judgment of this Court) wherein one of us (Hon'ble Sudhir Agarwal, J.) was a member, Court 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. ”

¶255

Accordingly, the present writ petition succeeds and is allowed. The Ceiling proceedings initiated against petitioner, stood abated. Part of land of petitioner declared as excess vacant land would continue to belong to petitioner. Respondents are restrained from interfering with possession of petitioner over disputed land and from dispossessing petitioner from disputed land. In the facts and circumstances of the case, petitioner is entitled to cost which we quantify at Rs. 50,000/- payable by respondent nos. 1 and 2, within a period of one month from today.

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Order Date :- 9.8.2019 Arshad

Ram Kumar Misra v. Competent Authority and Another

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Ram Kumar Misra v. Competent Authority and Another

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