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2002 DIGILAW 64 (MP)

Sunderbai v. State of M. P.

2002-01-17

DIPAK MISRA

body2002
Judgment ( 1. ) BY this writ petition preferred under Articles 226 and 227 of the Constitution of India the petitioners have prayed for quashment of order dated 7-7-1984, Annexure P-3, passed by the respondent No. 2 whereby a draft statement was published under the Urban Land (Ceiling and Regulation) Act, 1976. ( 2. ) MR. L. N. Namdeo, learned Counsel for the petitioner, has raised two fold contentions, namely, the land of the petitioners was not included in the master plan of Jabalpur and, therefore, it could not have been treated as vacant land and, therefore, determination of land as surplus as has been done by the competent authority under the Act is null and void in view of the decision rendered in the case of Atia Mohammadi Begum v. The State of U. P. and Ors. , AIR 1993 SC 2465 , and the decision by this Court in W. P. No. 833/91, decided on 12-12-1995 (Trilok Singh Yadav v. Stale of M. P. and Ors.); and secondly the possession of the land having not been taken over as envisaged under Section 10 of the aforesaid Act the possession cannot be taken over at this juncture. ( 3. ) MR. Ajay Raizada, learned Government Advocate, has submitted that the decision rendered in the case of Atia Mohammadi Begum (supra), has been partially overruled by the Apex Court in the decision rendered in the case of State of A. P. and Ors. v. N. Audikesava Reddy and Ors. , (2002) 1 SCC 227 . It is also putforth by him that the possession in question had already been taken in 1984 and, therefore, Section 4 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as "the Repeal Act) would not render any assistance to the petitioners. ( 4. ) TO appreciate the rival submissions raised at the bar it is apposite to refer to the decision rendered in the case of N. Audikesava Reddy (supra), wherein a three Judge Bench of the Apex Court came to hold as under: "11. ( 4. ) TO appreciate the rival submissions raised at the bar it is apposite to refer to the decision rendered in the case of N. Audikesava Reddy (supra), wherein a three Judge Bench of the Apex Court came to hold as under: "11. If the expression "commencement of the Act" is read with reference to the aforesaid Explanation, the area of doubt about the correctness of the decision of Atia Begum becomes very narrow, e. g. a few observations therein which are these:- (SCC p. 549, para 4) "just as the holder of the land cannot by his subsequent actions reduce the area of the vacant land in excess of the ceiling limit, the authorities too cannot by any subsequent action increase the area of the excess vacant land by a similar action. " 12. The observations that the authorities by their subsequent action after 17-2-1976 cannot alter or introduce the master plan which has the effect of increasing the area of excess vacant land do not represent the correct view of law. The aforesaid Explanation to Section 6 (1), inter alia, provides that where any land, not being vacant land, situated in a State in which this Act is in force has become vacant land by any reason whatsoever, the date on which such land becomes vacant land would be the date of the commencement of the Act as regards such land. 13. Development and town planning are ongoing processes and they go on changing from time to time depending upon the local needs. That apart, the definition of "master plan" in Section 2 (h) is very significant. It reads as under: "2 (h ). master plan", in relation to an area within an urban agglomeration or any part thereof, means the plan (by whatever name called) prepared under any law for the time being in force or in pursuance of an order made by the State Government for the development of such area or part thereof and providing for the stages by which such development shall be carried out. " The above provision, inter alia, contemplates the master plan prepared under any law for the time being in force for development of an area. The plan shall also provide for the stages by which such development shall be carried out. " The above provision, inter alia, contemplates the master plan prepared under any law for the time being in force for development of an area. The plan shall also provide for the stages by which such development shall be carried out. It is evident from the aforesaid definition of master plan that it takes in view any plan prepared even subsequent to the coming into force of the Act. Further, the Explanation to Section 6 (1), as noticed above, very significantly provides that every person holding vacant land in excess of the ceiling limit at the commencement of the Act shall file a statement before the competent authority and "the commencement of the Act" under clause (ii) would be when the land becomes vacant for any reason whatsoever. Therefore, the date of commencement of the Act in a case where the land, which was not vacant earlier, would be the date on which such land becomes vacant land. It, thus, contemplates a situation of land, not being vacant, becoming vacant due to preparation of a master plan subsequent to 17-2-1976. Further, the provisions of the Act require filing of a statement under Sections 6,7,15 and 16 from time to time as and when land acquires the character of a vacant land. Obligation to file statement under the Act arises when a person comes to hold any vacant land in excess of the ceiling limit, which date necessarily may not be 17-2-1976. It would all depend on the facts and circumstances of each case. 14. Accordingly, we hold that the master plan prepared as per law in force even subsequent to enforcement of the Act is to be taken into consideration to determine whether a particular piece of land is vacant land or not and, to this extent, Atia Begum is not correctly decided. " In view of the aforesaid enunciation of law the submission putforth by Mr. Namdeo that non-inclusion of the land of the petitioners in the Master Plan ipso facto was to be kept out of perview of the Act is not tenable. Mr. Namdeo has drawn the attention of this Court to the observation made in Paragraph 13 of the aforesaid decision. Namdeo that non-inclusion of the land of the petitioners in the Master Plan ipso facto was to be kept out of perview of the Act is not tenable. Mr. Namdeo has drawn the attention of this Court to the observation made in Paragraph 13 of the aforesaid decision. The aforesaid observation does not render much assistance to the learned Counsel for the petitioners because the said fact does not arise in this case and in any case the petitioner has accepted the order passed by the competent authority and chose not to prefer any appeal. He cannot get the benefit after remaining in hibernation for the last 17 years and knock at the doors of justice at his own will. This Court had only entertained the writ petition because in the decision rendered in the case of Trilok Singh Yadav (supra) this Court expressed the view if the land in question is not included in the master plan the whole proceeding becomes null and void but the said view cannot be the ruling factor in view of the judgment rendered in the case of N. Audikesava Reddy (supra ). ( 5. ) THE next aspect which requires to be determined is that whether the possession of the land in question has been taken over by the State Government. It is apposite to state here that the Parliament introduced the Repeal Act by Act No. 15 of 1999 and therein provided that it would be open to the State Government to pass and adopt the same as envisaged under Clause 2 of Article 252 of the Constitution. It is not disputed that the State of Madhya Pradesh has adopted the same by a resolution. Thus, there has been repeal of the aforesaid Act. Section 4 of the Repeal Act, 1999 reads as under: "4. It is not disputed that the State of Madhya Pradesh has adopted the same by a resolution. Thus, there has been repeal of the aforesaid Act. Section 4 of the Repeal Act, 1999 reads as under: "4. Abatement of legal proceedings.- All proceedings relating to any order made or purported to be made under the Principal Act pending immediately before the commencement of this Act, before any Court, Tribunal or other authority shall abate: Provided that this section shall not only to the proceeding 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. " ( 6. ) AT this juncture I may profitably refer to the decision rendered in the case of Pt. Madan Swaroop Shrotiya Public Charitable Trust v. State of U. P. and Ors. , (2000) 6 SCC 325 , wherein the Apex Court after referring to Section 4 of the Repeal Act, 1999 and taking note of fact that the possession of the surplus land had not been taken over came to hold that the proceedings have to be abated under the Repeal Act, 1999. ( 7. ) RECENTLY, in the case of Smt. Angoori Devi v. State of U. P. and Ors. , 2001 AIR SCW 5128, the Constitution Bench in Paragraph 2 held as under: "2. These cases relate to the interpretation of different provisions of the Urban Land (Ceiling and Regulation) Act. During the pendency of these appeals in this Court, the Urban Land (Ceiling and Regulation) Act has been repealed by Act 15 of 1999 and the State of U. P. also has adopted the same by a Resolution. In view of the provisions contained in Section 3 of the Repealing Act and the fact that the possession of the vacant land has not been taken over by the State Government, which is asserted by the Counsel appearing for the appellants and is also apparent from the interim orders passed by this Court, the question for consideration no longer survives. Further under Section 4 of the Repealing Act all proceedings under the Act must be held to have abated. Further under Section 4 of the Repealing Act all proceedings under the Act must be held to have abated. In that view of the matter, we do not think it necessary to proceed with this matter. These appeals stand disposed of accordingly. " ( 8. ) ON a perusal of the aforesaid pronouncement of law there remains no trace of doubt that all proceedings under the Act must be held to have been abated in view of Section 4 of the Repeal Act. In this context, I may profitably refer to Section 3 which deals with savings. The said provision reads as under: "3. Savings.- (1) The repeal of the Principal Act shall not affect (a) the vesting of any vacant land under sub-section (3) of Section 10, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority; (b) the validity of any order granting exemption under subsection (1) of Section 20 or any action taken thereunder, notwithstanding any judgment of any Court to the contrary; (c) any payment made to the State Government as a condition for granting exemption under sub-section (1) of Section 20. (2) Where (a) any land is deemed to have vested in the State Government under sub-section (3) of Section 10 of the Principal Act but possession of which has not been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority; and (b) any amount has been paid by the State Government with respect to such land, the, such land, shall not be restored unless the amount paid, if any, has been refunded to the State Government. " On a perusal of the aforesaid provision it is quite vivid that where the land has been vested in the State Government 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, nothing remains to be done. ( 9. ) MR. Namdeo, learned Counsel for the petitioners, has submitted that the possession has only been taken over on papers but the same has really not been taken over, as records would clearly show. On the contrary, Mr. ( 9. ) MR. Namdeo, learned Counsel for the petitioners, has submitted that the possession has only been taken over on papers but the same has really not been taken over, as records would clearly show. On the contrary, Mr. Ajay Raizada, learned Government Advocate, submitted that the possession has been taken over as per the provisions of the Principal Act. This being a disputed question of fact this Court cannot enter into the same to find out whether the possession, as an actual fact, has been taken over. Mr. Raizada has contended that the Office of the competent authority has not been abolished. In view of this, I am inclined to direct that the petitioner shall putforth his grievance before the competent authority that the possession has not been taken over and, therefore, no further action can be taken as Section 4 clearly stipulates all proceedings except proceedings under Sections 11, 12, 13 and 14 would abate. In fact, in the case of N. Audikesava Reddy (supra) it was clearly laid down that if the possession is not taken over the same cannot be taken over by the State Government. Keeping in view the factual scenario it is is directed that the competent authority shall afford an opportunity of hearing to the petitioner to putforth his grievance that how the possession has not been taken over as per law and nothing subsists to be done in the proceeding. It will be open to the petitioner to raise all the contentions from all fours relating to the factum of taking over of possession. ( 10. ) THE writ petition is accordingly disposed of. There shall be no order as to costs.