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Madhya Pradesh High Court · body

2008 DIGILAW 1412 (MP)

RAJULAL v. STATE OF M P

2008-12-05

PRAKASH SHRIVASTAVA

body2008
Judgment ( 1. ) THIS writ petition has been filed by the petitioner challenging the order passed by the Commissioner, Bhopal, in an appeal arising out of the order passed in the proceedings under the Urban Land Ceiling and regulation Act, 1976, (herein after referred to as the Ceiling Act) whereby the commissioner while dismissing the appeal has held that the petitioner will be entitled to compensation only for 0. 37 acre of land under the Land Acquisition Act and for remaining land at the rates fixed under the Ceiling Act. ( 2. ) THE brief facts are that the petitioner is the owner of 20. 70 acres of land as described in paragraph 5. 2 of the writ petition. The proceedings under the Land acquisition Act were initiated in the year 1986-87 for acquiring the petitioners land in favour of M. P. Housing Board. The notification under section 4 (1) was published in the gazette on 21. 8. 1987 and the declaration was published in the gazette on 27. 11. 1987. Thereafter, the notices were served on the petitioners father (since dead) under section 9 (3) on 17. 3. 88 and since the urgency clause under section 17 was invoked the possession was taken by the Housing Board on 11. 5. 1989. The award was thereafter passed on 11. 5. 1989 (annexure P/4) acquiring the petitioners land and fixing the compensation. ( 3. ) THE dispute arose since the proceedings under the Ceiling Act were also going on simultaneously. The petitioners father Rajjulal on 29. 10. 1991 submitted an application to the competent authority under the Ceiling Act to drop the ceiling proceedings on the ground that the award in the land acquisition proceedings in respect of the same land was already passed. The competent authority by order dated 19. 2. 1992 rejected the application filed by the petitioners father finding him entitled to compensation under the Land Acquisition Act only in respect of 0. 37 acre and directing issuance of draft statement under section 8 (3) of the ceiling Act. Thereafter, the draft statement under section 8 (3) was issued by the competent authority on 28. 2. 1992. Aggrieved with the order dated 19. 2. 1992 the petitioner preferred appeal before the Commissioner and the Commissioner by order dated 14. 2. 2000 dismissed the petitioners appeal affirming the order of the competent authority dated 19. 2. 1992. Thereafter, the draft statement under section 8 (3) was issued by the competent authority on 28. 2. 1992. Aggrieved with the order dated 19. 2. 1992 the petitioner preferred appeal before the Commissioner and the Commissioner by order dated 14. 2. 2000 dismissed the petitioners appeal affirming the order of the competent authority dated 19. 2. 1992. Aggrieved with this order passed by the commissioner in appeal, the petitioner has preferred present writ petition. ( 4. ) LEARNED counsel appearing for the petitioner submitted that the proceedings under section 8 (3) of the Ceiling Act were not complete nor the final statement under section 9 was served and the notifications under section 10 (1) and 10 (3) of the Act were also not published in the matter and before these steps could be taken up under the Ceiling Act, the land of the petitioner was acquired under the land Acquisition Act and final award was passed, therefore, the petitioner would be entitled to receive compensation in respect of the entire land which has been acquired under the Land Acquisition Act as per the award and the proceedings under the Ceiling Act cannot continue in respect of the land which has already been acquired. ( 5. ) LEARNED counsel appearing for the respondents submitted that the petitioner would be entitled to receive compensation under the Land Acquisition Act only in respect of 0. 37 acres of land as held by the competent authority in the order dated 19. 2. 1992 and as affirmed by the Commissioner in the order dated 14. 2. 2000. He further submitted that under the Ceiling Act there is a bar to transfer the land pending ceiling proceedings, therefore, the land could not have been acquired once the proceedings under the Ceiling Act were initiated. He has also placed reliance upon section 42 of the Ceiling Act in support of his submission that in case of conflict between the provisions of Land Acquisition Act and the Ceiling act, the provisions of Ceiling Act will prevail. ( 6. ) I have heard learned counsel for the parties and perused the record. ( 7. ) THE question which arises for consideration is whether the award passed under the Land Acquisition proceedings will prevail when in respect of same land, proceedings under the Ceiling Act were initiated prior to the commencement of the proceedings under the Land. ( 6. ) I have heard learned counsel for the parties and perused the record. ( 7. ) THE question which arises for consideration is whether the award passed under the Land Acquisition proceedings will prevail when in respect of same land, proceedings under the Ceiling Act were initiated prior to the commencement of the proceedings under the Land. Acquisition Act but no final statement under section 9 and no notification under section 10 (1) and 10 (3) of the Ceiling Act was published? ( 8. ) IT is not in dispute that in the present case, the proceedings under the Land acquisition Act were initiated with the issuance of section 4 (1) notification read with section 17 (1) on 21. 8. 1987. When the possession was taken and award was passed on 11. 5. 1989, the final statement under section 9 and notification under section 10 (1) and 10 (3) of the Ceiling Act were not issued. It is also not in dispute that the appointed date in terms of section 2 (a) of the Ceiling Act is 9. 9. 1976. ( 9. ) SECTION 3 of the Ceiling Act provides that on and from the commencement of the Act no person will be entitled to hold any vacant land in excess of the ceiling limit. Section 4 fixes the ceiling limit. Section 5 puts a restriction on transfer of vacant land by a person holding the vacant land in excess of the ceiling limit at any time during the period commencing on the appointed day and ending with the commencement of the Act. Section 6 requires a person holding the vacant land in excess of the ceiling limit to file the statement. Section 8 deals with preparation of draft statement as regards vacant land held in excess of the ceiling limit. Section 8 (3) requires service of the draft statement on the person concerned with a notice to prefer objection. ( 10. ) IN the present matter it has been stated that the proceedings under the ceiling Act were taken up to the stage of service of draft statement under section 8 (3 ). The draft statement was served upon the petitioner on 28. 2. 1992 but before service of draft statement the award in the Land Acquisition proceedings was passed on 11. 5. 1989. ( 11. The draft statement was served upon the petitioner on 28. 2. 1992 but before service of draft statement the award in the Land Acquisition proceedings was passed on 11. 5. 1989. ( 11. ) SUB section (4) of section 8 of the Ceiling Act provides for passing of an order by the competent authority after considering the objection against the draft statement. Section 9 of the Ceiling Act deals with the final statement to be issued by the competent authority determining the vacant land held by the person. Section 10 (1) provides for a notification giving the particulars of the vacant land held in excess of the ceiling limit and section 10 (3) provides for declaration of the excess vacant land by publishing the notification in the official gazette. Section 9 and 10 which are relevant for the purpose of present controversy provides as under : 9. Final Statement :- After the disposal of the objections, if any, received under sub-section (4) of section 8, the competent authority shall make the necessary alterations in the draft statement in accordance with the orders passed on the objections aforesaid and shall determine the vacant land held by the person concerned in excess of the ceiling limit and cause a copy of the draft statement as so altered to be served in the manner referred to in sub-section (3) of section 8 on the person concerned and where such vacant land is held under a lease, or a mortgage, or a hire-purchase agreement, or an irrevocable power of attorney, also on the owner of such vacant land. 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 - (1) such vacant land is to be acquired by the concerned state Government; and (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, to be published for the information of the general public in the Official gazette of the State concerned and in such other manner as may be prescribed. (2) After considering the claims of the persons interested in the vacant land, made to the competent authority in pursuance of the notification published under sub-section (1), the competent authority shall determine the nature and extent of such claims and pass such orders as it deems fit. (3) At any time after the publication of the notification under sub-section (1) the competent authority may, by notification published in the Official Gazette of the State concerned, declare that the excess vacant referred to in the notification published under sub-section (1) shall, with effect from such date as may be specified in the declaration, be deemed to have been acquired by the State Government and upon the publication of such declaration, such land shall be deemed to have vested absolutely in the State government free from all encumbrances with effect from the date so specified. (4) During the period commencing on the date of publication of the notification under sub-section (1) and ending with the date specified in the declaration made under sub-section (3)- (i) no person shall transfer by way of sale, mortgage, gift, lease or otherwise any excess vacant land (including any part thereof) specified in the notification aforesaid and any such transfer made in contravention of this provision shall be deemed to be null and void; and (ii) no person shall alter or cause to be altered the use of such excess vacant land. (5) where any vacant land is vested in the State Government under sub-section (3), the competent authority may, by notice in writing, order any person who may be in possession of it to surrender or deliver possession thereof to the State Government in this behalf within thirty days of the service of the notice. (6) If any person refuses or fails to comply with an order made under sub-section (5), the competent authority may take possession of the vacant land or cause it to be given to the concerned State Government in this behalf and may for that purpose use such force as may be necessary. ( 12. ) A perusal of the aforesaid provisions shows that unless the steps provided under sections 9 and 10 of the Ceiling Act are taken, the extent of the land excess of the ceiling limit held by a person is not finally determined. ( 12. ) A perusal of the aforesaid provisions shows that unless the steps provided under sections 9 and 10 of the Ceiling Act are taken, the extent of the land excess of the ceiling limit held by a person is not finally determined. Under section 10 (3)on the publication of declaration the excess vacant land mentioned in the notification published under section 10 (1) vests in the State Govt. with effect from the date specified in the declaration, therefore, the vesting of the land in the State Govt. takes place only on the publication of the notification under section 10 (3) that too with effect from the date mentioned in such notification. Until and unless the proceedings under sections 9 and 10 of the Ceiling Act are completed, the extent of the vacant land, which is to vest in the State, cannot be clearly stated and unless notification under section 10 (3) is issued the land does not vest in the State. Though section 3 provides that no person will be entitled to hold any vacant land in excess of the ceiling limit but such a vacant land is determined only on completion of the proceedings prescribed under sections 9 and 10 of the Act and on final determination of such a vacant land deemed to be acquired from the date specified in the notification published under section 10 (3) and it vests in the State. Therefore, the concerned person remains owner of the land till these proceedings are completed and till the land is acquired by the State and the land vests in the State on publication of notification under section 10 (3) of the Ceiling Act. ( 13. ) SECTION 42 of the Ceiling Act gives overriding effect to the Act and other laws and provides as under : 42. Act to override other laws :-- The provisions of this Act shall have effect notwithstanding anything contained therewith in any other law for the time being in force or any custom, usage or agreement or decree or order of a court, tribunal or other authority. ( 14. ) THIS court in M. H. R. K. Co-operative Multipurpose Agricultural Society, bhopal and others. V Land Acquisition Officer and others, 2003 (2) MPLJ 219, has held that : 16. ( 14. ) THIS court in M. H. R. K. Co-operative Multipurpose Agricultural Society, bhopal and others. V Land Acquisition Officer and others, 2003 (2) MPLJ 219, has held that : 16. The grounds raised in the writ petition, the main challenge is on the strength of section 42 of Urban Land Ceiling Act, in my opinion, the provisions of Urban Land Ceiling Act and section 42 do not come in the way of the land acquisition being made under the provisions of the Land Acquisition Act. Section 42 does not bar the acquisition under the Land Acquisition Act. ( 15. ) THIS court in the matter of M. P. Hasta Shilpa Co-operative Housing society, Bhopal and another V. State of M. P. and others, 2003 (4) MPLJ 358, held that: 10. Coming to the question whether the land acquisition under land Acquisition Act is subject to the provisions of section 42 of urban Land Ceiling and Regulation Act, 1976 since repealed, in my opinion, the submission is devoid of substance. The provisions of Land Acquisition Act are independent. Power of exemption under section 20 of Urban Land Ceiling and Regulation Act is to operate in different sphere; when the State Govt. has conceded to the necessity of the land to the acquired under the Land Acquisition act, in my opinion, the proceedings under the Urban Land Ceiling and Regulation Act does not come in the way of land acquisition on facts also no order of exemption is passed by the State Govt. ( 16. ) LEARNED counsel appearing for the respondents has failed to point out any inconsistency between the Ceiling Act and the Land Acquisition Act, 1894. The two Acts have different objects, scope and areas of operation. ( 17. ) SECTION 5 of the Ceiling Act provides that if a person holding the land in excess of the ceiling limit at any time during the period commencing on the appointed day and ending with the commencement of the Act, transfers such land by way of sale, mortgage, gift, etc. the extent of land so transferred will also be taken into account in calculating the extent of vacant land held by such person. Section 5 of the Ceiling Act covers voluntary transfer by owner but it does not cover compulsory acquisition of land by the State under the provisions of Land Acquisition Act. the extent of land so transferred will also be taken into account in calculating the extent of vacant land held by such person. Section 5 of the Ceiling Act covers voluntary transfer by owner but it does not cover compulsory acquisition of land by the State under the provisions of Land Acquisition Act. Therefore, prior to issuance of final statement under section 9 and vesting of land under section 10 of the Ceiling Act, if the land is acquired by the Govt. under the land Acquisition Act, then the same will not be taken into account in calculating the extent of vacant land. This court in Gulabi Nagar Griha Nirman Sahkari samiti Maryadit, Bhopal and others V. State of M. P. and others, 2004 (1) MPLJ 125, held that : 16. It is contended that final statement under section 9 of urban Land Ceiling Act was not issued as such it cannot be said that declaration of land as surplus has attained finality; it is clear that land was declared surplus, petitioners were seeking exemption which has not been granted by the State so far no order under section 20 of Urban Land Ceiling Act has been passed that apart land acquisition is Land Acquisition Act which is independent of ceiling proceedings and even if proceeding under Ceiling Act is pending that does not come in the way of acquisition of land under land Acquisition Act. ( 18. ) THE aforesaid interpretation is also supported with the reasoning that the govt. cannot acquire its own land. If the land is already acquired under the Land acquisition Act then the same land cannot be acquired again under section 10 of the Ceiling Act. Supreme Court in the matter of State of Jammu and Kashmir V. Sanahullah Mir, (1980)3 SCC 272 , has held that acquisition of States own land is nullity. ( 19. ) THE Supreme Court in the matter of Neelgagan V. State of Karnataka, air 1990 SC 1321 , has also noted that : "this appeal by special leave is directed against the judgment of the High Court of Karnataka dated 4-3-1987 in W. P. No, 10292 of 1980 filed by the respondent No. 3, Hubli Dharwar Municipal corporation, setting aside an award made under the Land. acquisition Act, 1897 in respect of the compensation payable to the present appellants and directing to reopen the proceeding before the civil court on a reference under Section 18 of the Act, for fresh disposal in accordance with law. The appellants were the owners of the land in question. In a proceeding under the Urban land (Ceiling and Regulation) Act, 1976, the appellants were held to be having surplus land, which by virtue of the provisions of the act vested in the State Government. However, before the publication of the aforesaid declaration in the official gazette, steps for acquisition were taken for meeting the requirements of the respondent-Corporation. The appellants thus escaped the consequences of the declaration made under the Ceiling Act, and became entitled to the compensation payable in accordance with the provisions of the Land Acquisition Act. Steps were accordingly taken for determination of the compensation, and on an application by the appellants under Section 18 of the Land Acquisition Act, reference was made to the civil court". ( 20. ) THE view taken in this judgment is also supported by the view taken by the allahabad High Court in the matter of Mohd. Shaheed Khan V. State of U. P. and another, III (1996) CLT 248, wherein it has been held that : 5. Under sub-section (1) of Section 10, the Competent authority after the service of the final statement under Section 9 on the person concerned, is required to cause a notification giving particulars of the excess vacant land held by such person, published for information of the general public inviting the claim from such persons, who may be interested in the vacant land. Thereafter, under sub-section (2) of the same Section the Authority decides the claim and pass appropriate order in that connection. Under sub-section (3) of Section 10 the Competent Authority declares the excess vacant land specifying the date with effect from which the excess vacant land shall be deemed to have been acquired by the Govt. and "upon publication of such declaration, such land shall be deemed to have vested absolutely in the State Govt. free from all encumbrances with effect from the date so specified". and "upon publication of such declaration, such land shall be deemed to have vested absolutely in the State Govt. free from all encumbrances with effect from the date so specified". Although Section 3 of the Ceiling Act has laid down that no person shall be entitled to hold any vacant land in excess of the ceiling limit; but there is no provision in the said Act for automatic vesting of the excess vacant land in the State. The Ceiling Act had laid down elaborate procedure for adjudication about such land by the competent Authority in quasi judicial manner. Till the date specified in the notification published under Section 10 (3 ). the owner of the excess vacant land is not divested of the title to the said land and he continues to be its owner. Govt. becomes owner of such land only from the date specified in the notification under sub-section (3) of Section 10, and it is from such date that the excess vacant land stands vested in the State Govt. free from all encumbrances. 7. . . . . . . . . . . . . . . . Position is thus clear that if under any of the two Acts viz. , the Land Acquisition Act or the Ceiling Act, the land has been acquired and its possession has been taken by the State then the proceedings under the other Act cannot be continued because the state cannot acquire its own land. Therefore, the compensation has to be paid to the owner of the land under the Act under which it was acquired first. ( 21. ) THUS, it is apparent that prior to acquisition and vesting of the land under section 10 (3) of the Ceiling Act if a part of the land was already acquired by the govt. under the Land Acquisition Act then such a land will be outside the purview of the ceiling proceedings and the same land cannot again be acquired and vested in the State in the ceiling proceedings. ( 22. ) NOW, coming to the facts of the case, the notification under section 4 (1)read with section 17 (1) was published on 21. 8. 1987. Under section 17 (1) in case of urgency the Collector can take possession of the land on expiry of 15 days from the publication of notice mentioned in section 9 (1 ). ( 22. ) NOW, coming to the facts of the case, the notification under section 4 (1)read with section 17 (1) was published on 21. 8. 1987. Under section 17 (1) in case of urgency the Collector can take possession of the land on expiry of 15 days from the publication of notice mentioned in section 9 (1 ). Before making of award under section 11 of the Act and on taking such possession land vests absolutely in the Govt. free from all encumbrances. After publication of notice under section 4 (1) read with section 17 (1) of the Act, the petitioner was given notice under section 9 (3) of the Act on 17. 3. 1988. Annexure P/2b issued by the Housing Board indicates that the possession of the land in question was received by the Housing board on 11. 5. 1989, The respondents have not filed any reply to the writ petition disputing the aforesaid fact. The petitioner has also placed on record the award dated 11. 5. 1989 which was approved by the Collector on 12. 5. 1989 acquiring the land of the petitioner. On completion of these proceedings the petitioned had filed. the application dated 29. 10. 1991 for dropping the proceedings under the Ceiling Act. ( 23. ) BY the order dated 19. 2. 1992 the petitioners application was rejected holding that by virtue of section. 5 (3) and 42 of the Act, the acquisition of land under the land Acquisition Act will have no effect on the ceiling proceedings. By order dated 19. 2. 1992 the competent authority further directed to issue draft statement under section 8 of the Ceiling Act for the entire land except 0. 37 acre of land. The Commissioner while dismissing the appeal against this order by order dated 14. 2. 2000 adopted the same reasoning and held that the petitioner is entitled to compensation only for 0. 37 acres of land under the Land Acquisition Act and for remaining land as per the right under the Ceiling Act. ( 24. ) SINCE, the petitioners land was acquired under the Land Acquisition Act much prior to the stage of issuance of draft statement under section 8 of the ceiling Act, therefore, for the reasons mentioned above the order dated 14. 2. 2000 passed by the Commissioner in appeal and the order dated 19. 2. ( 24. ) SINCE, the petitioners land was acquired under the Land Acquisition Act much prior to the stage of issuance of draft statement under section 8 of the ceiling Act, therefore, for the reasons mentioned above the order dated 14. 2. 2000 passed by the Commissioner in appeal and the order dated 19. 2. 1992 passed by the competent authority, cannot be sustained and are hereby set aside. The petitioner will be entitled to receive the compensation for the land which has been acquired as per the provisions of the Land Acquisition Act and the land which has already been acquired under the Land Acquisition Act prior to the completion of proceedings under sections 9 and 10 of the Ceiling Act will not be taken into account for calculating the vacant land. The competent authority under the Ceiling Act will reconsider the petitioners application dated 29. 10. 1991, anhexure P/5, for dropping the proceedings under the Ceiling Act in the light of the observation made in the present judgment. ( 25. ) WRIT petition stands disposed of. No orders as to costs. Petition disposed of.