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2008 DIGILAW 446 (MP)

LALJI CHOUBEY v. STATE OF M. P.

2008-03-20

K.K.LAHOTI, R.S.GARG

body2008
Judgment K.K.Lahoti, J. ( 1. ) The appellant aggrieved by an order of learned Single Judge dated 1.3.2006 in W.P.No. 13534/2005, has preferred this appeal under section 2(1) of the M.P.Uchha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005. Before the learned Single Judge the appellant challenged the order dated 10. 10.2005 passed by the Additional Collector and competent authority Urban Land Ceiling Act, Jabalpur in revenue case no.60/B-121/88-89, by which the Additional Collector found that the petitioner was dispossessed by the Revenue Officer from surplus land declared under the provisions of Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as Act for short) on 4.8.1988. The competent authority also found that due procedure for dispossessing the appellant was followed by the revenue authorities and after dispossession of appellant the land was recorded in the name of State of M.P., in place of appellant, the holder of land. Earlierthe petitioner filed a writ petition W.P.No.3763/2005, in which order Annexure A-2 dated 23.5.2005 was passed and the competent authority was directed to look into the fact whether possession of the land was really taken over or not as per law and decide this question accordingly. ( 2. ) The order passed by learned Single Judge has been assailed on following grounds :- (i) That though in ceiling case no.208/A-90/(B-9)/81-82 the appellants land of village Oriya and Karmeta, District Jabalpur admeasuring 105735.54 sq.m., was declared surplus, but the competent authority had not taken actual possession from the appellant. (ii) That notice as required under section 10(5) of the Act was not served on the appellant. (iii) That the appellant remained in possession of the land till 17.2.2000, the date on which the State Government vide notification dated 9.3.2000 adopted the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as Repeal Act for short), so under section 3(2) of the Repeal Act, the appellant who was not dispossessed by the State Government, is entitled to retain the land. (iv) That the learned Single Judge has not considered the report of Revenue Inspector, Maharajpur Annexure A-3, by which it was reported to the Tahsildar on 17.7.2005 that the appellant was in possession of the land and the land in question was under cultivation of appellant. Without considering this report the matter has been decided. (iv) That the learned Single Judge has not considered the report of Revenue Inspector, Maharajpur Annexure A-3, by which it was reported to the Tahsildar on 17.7.2005 that the appellant was in possession of the land and the land in question was under cultivation of appellant. Without considering this report the matter has been decided. (v) That section 10(5) of the Act provides for issuance of notice by the competent authority for delivery of possession and in case after service of notice under section 10(5) of the Act, possession was not handed over then notice under section 10(6) of the Act was required, but in the present case no such notice was issued. (vi) That there were two reports for taking possession dated 20.11.1988 and 8.2.1991. These reports show that in fact on 20.11.1988 possession was not taken over and similarly in view of specific report Annexure A-3 filed by the appellant, it is apparent that the proceedings dated 8.2.1991 were only paper proceedings. (vii) That the possession was not taken over under section 10(5) of the Act so the proceedings before the competent authority shall be deemed to be pending immedia tely before the commencement of Repeal Act and the said proceedings shall stand abated. Reliance was placed by the appellant on the judgment of Apex Court in Kishari Lal Vs. State ofM.P. and others [(2005) 3 SCC632], and of this Court in Sudhir Agrawal and another Vs. State of Madhya Pradesh and others [2004(3) MPHT 16 (NOC)], Ram Narain and others Vs. State of M.P., and another ( 2005(4) MPLJ 10 NOC) and it was submitted that this appeal be allowed, order of learned Single Judge be set aside, the appellants petition be allowed directing abatement of proceedings against the appellant under the Act and respondents be directed not to interfere in the possession of appellant. ( 3. ) Shri Vijay Shukla, learned Deputy Advocate General raised following contentions :- (i) That possession of the land was taken over long back in the year 1988 and in this regard the competent authority had recorded a finding in order Annexure A-l. Before taking possession the appellant was issued a due notice as required under section 10(5) of the Act, which was refused by the appellant and thereafter the possession of land was taken by the Revenue Officer. (ii) That since 1988 the land is recorded in the name of State of M.P. The proceedings were concluded in the year 1988 itself and the appellant filed writ petition before the learned Single Judge on 25.10.2005. For a considerable long period of nearabout 17 years no steps were taken by the appellant challenging the proceedings of 1988 or for correction of the revenue record and after such long lapse of period the petition of appellant was rightly dismissed by the learned Single Judge. Reliance was placed on the Apex Court judgment in Tamil Nadu Housing Board Vs A. Viswam ( AIR 1996 SC 3377 ) and it was submitted that appellant was dispossessed by following the due procedure of law, a memorandum / panchnama was prepared by the authority and the appellants name was deleted from the revenue record. All these facts show that the proceedings were duly initiated against the appellant and he was dispossessed. That the provisions of sections 3(2) of the Act are not applicable as the possession was already taken over by the State from the appellant. (iii) That so far as the abatement of proceedings is concerned, on 12.2.2000 no such proceedings were pending before any authority, so no question arises for abatement of proceedings. ( 4. ) To appreciate the rival contention of the parties, factual position in this case may be looked into :- (a) That the appellant was holder of urban land and his land was - declared as surplus in ceiling case no.208/A-90/(B-9)/81-82 under section 10(3) of the Act. A notice under section 10(5) of the Act was sent to the appellant on 15.3.1988. This notice was refused by the appellant and the case was proceeded exparte. Thereafter the revenue authorities took the possession of the land after preparing a panchnama, the revenue records were corrected and tile land in question was recorded in the name of State of M.P., in the year 1988. That the appellant had not challenged the aforesaid proceedings before any competent Court. (b) The Central Government enacted the Repealing Act and vide gazette notification dated 9.3.2000 published in the Gazette of MP., dated 10.3.2000 the aforesaid Repealing Act was adopted by the State of M.P. (c) The appellant on repeal of the Act filed a writ petition before this Court which was registered as W.P.No.3763/2005. (b) The Central Government enacted the Repealing Act and vide gazette notification dated 9.3.2000 published in the Gazette of MP., dated 10.3.2000 the aforesaid Repealing Act was adopted by the State of M.P. (c) The appellant on repeal of the Act filed a writ petition before this Court which was registered as W.P.No.3763/2005. The aforesaid matter came up for hearing before the High Court on 23.5.2005. Before the learned Single Judge a singular contention was made that the possession of land was not taken over as contemplated under section 10(5) of the Act, so the authorities be directed not to dispossess him because now the possession cannot be taken by virtue of Repeal Act. On raising the aforesaid contention, learned Single Judge directed that the competent authority shall look into the matter whether the possession of the land was really taken over or not as per law and decide this question as per law. A period of 3 months was provided to the competent authority to decide the matter and till then the status-quo was directed to be maintained. (d) Thereafter the competent authority/Additional Commissioner, Urban Ceiling Jabalpur enquired into the matter. He examined the record of ceiling case no.208/A-90/(B-9)/81-82 and recorded finding that the notice under section 10(5) was issued on 15.3.1988, but it was not served on the holder. On perusal of the case of Tehsildar bearing no.60/B- 121/8-8-89 it was found that on 4.8.1988 again a notice was issued to the appellant and from the proceedings of 20.11.1988 it revealed that notice was refused by the holder, case was proceeded exparte and the possession of the land was taken over by the Revenue Officer and the record was directed to be corrected. The proceedings of. taking over possession were duly signed by the Kotwar Jangle Singh and another Kotwar Komal Prasad. Thereafter the Patwari recorded the name of State Government in the revenue records. In the proceedings of taking over possession the Patwari and two witnesses Komal Prasad and Sukhram had signed. The Tehsildar had.also recorded this fact in the proceedings. After perusal of both the cases the competent authority found that the appellant was dispossessed, the land was recorded in the name of State and decided the case against the appellant. In the proceedings of taking over possession the Patwari and two witnesses Komal Prasad and Sukhram had signed. The Tehsildar had.also recorded this fact in the proceedings. After perusal of both the cases the competent authority found that the appellant was dispossessed, the land was recorded in the name of State and decided the case against the appellant. (e) Before the learned Single Judge in W.P.No. 13534/200 the appellant reiterated the same contention about non-service of notice under section 10 (5) of the Act, the proceedings for dispossessing the appellant were exparte and were not in accordance with law. The learned Single Judge by the judgment dated 1.3.2006 recorded the findings against the appellant, and dismissed the writ petition. ( 5. ) To appreciate the contention of appellant firstly the relevant provisions may be looked into which are quoted thus :- "S.3. Persons not entitled to hold vacant land in excess of the ceiling limit - Except as otherwise provided in this Act, on and from the commencement of this Act, no person shall be entitled to hold any vacant land in excess of the ceiling limit in the territories to which this Act applies under sub-section (2) of section 1. S.10. Acquisition of vacant land in excess of ceiling limit - (1) As soon 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 so be acquired by the concerned State Government and (ii) the claims of all persons 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. (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 contempt 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. (5) Where any vacant land is vested in the State Government under sub-section(3), the competent authority may, by notice in writing, order any person who may be in possession of it to surrender or deliver possession thereof to the State Government or to any person duly authorised by 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 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." Sections 3 and 4 of Repealing Act read thus :- 3. Savings.-(l) The repeal of the principal Act shall not affect- (a) the vesting of any vacant land under sub-section (3) of Section 10, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority; (b) the validity of any order granting exemption under sub-section (1) of Section 20 or any action taken thereunder, notwithstanding any judgment 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, then, such land shall not restored unless the amount paid, if any, has been refunded to the State Government. 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 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. Sections 3 and 10 (3) of the Act provide that from the commencement of Act no person shall be entitled to hold any vacant land in excess of ceiling limit. Ceiling limit was provided under section 4 of the Act and in the present case as there is no controversy in this regard, it is not necessary to refer the aforesaid provision. Section 10(1) of the Act provides that after service of 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. After publication of such notification under sub-section (1), by the competent authority the land which was declared as surplus land shall be deemed to have been acquired by the State Government and shall be deemed to have vested absolutely with the State Government free from all encumbrances with effect from the date so specified. In this case there was no dispute in respect of the fact that land was declared as surplus and was deemed to have been vested with the State, as notified in this regard. In this case there was no dispute in respect of the fact that land was declared as surplus and was deemed to have been vested with the State, as notified in this regard. Sub-section (5) provides that after vesting of land with the State Government under sub-section (3) the competent authority may by notice in writing, order any person who may be in possession of the land to deliver the possession thereof to the State Government in this behalf within thirty days of service of notice. Sub-section (6) provides that 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. Under section 10 of the Act, there is no provision for issuance of another notice under sub-section (6), if a notice under section 10(5) was issued and the appellant refuses to accept the notice, the competent authority was entitled to take possession of the land, so the contention of appellant that after refusal of notice under sub-section (5) another notice under sub-section (6) was required, has no force. In Govt. ofA.P. Vs. H.E.H. The Nizam, Hyderabad [ (1996) 3 SCC 282 ], the Apex Court held thus: "... ...Under Section 10(1), after service of the statement under Section 9 on the person concerned, the competent authority should cause publication of a notification in the State Gazette with particulars of the vacant land in excess of the ceiling limit, for information of the general public. After considering claims, if any, laid under sub-section (2) and disposal thereof, the competent authority shall determine the nature and extent of such claim and pass such orders as it deems fit. Thereafter the competent authority by notification under Section 10(3) published in the State Gazette may declare that the excess land published under sub-section (1) shall be deemed to have been acquired by the State Government with effect from the date specified in the declaration and such land shall "be deemed to have vested absolutely in the State Government free from all encumbrances with effect from the date so specified". The word deemed is used to give effect to the operation of Section 3 from the date the Act was brought into force. In other words, the deemed vesting under Section 10(3) would date back to 17-2-1976 and the date specified under Section 10(3). The word deemed is used to give effect to the operation of Section 3 from the date the Act was brought into force. In other words, the deemed vesting under Section 10(3) would date back to 17-2-1976 and the date specified under Section 10(3). In Vatticherukuru Village Panchayat v. Nori Venkatarama Deekshithulu (1991 Supp (2) SCC - 228) this Court in para 10 had held that the word vest takes varied colours from the context and situation in which the word came to be used in the statute. It is common knowledge that under the Act, the acquired lands vest in the State from the date of taking possession under Section 16 or 17(2). Under the land reforms like abolition of estate and taking over thereof, the vesting takes effect from the date of publication of the notification in the Official Gazette. In Consolidated Coffee Ltd. v. Coffee Board [ (1980) 3 SCC 358 ] this Court had held that the word deemed is used a great deal in modern legislation in different senses and it is not that a deeming provision is every time made for the purpose of creating a fiction. A deeming provision is made to include what is obvious or what is uncertain or to impose for the purpose of a statute an artificial construction of a word or phrase that would not otherwise prevail, but in each case it would be a question as to with what object the legislature has made such a deeming provision. It would thus be seen that determination of the excess ceiling land pursuant to the statement filed under Section 6 becomes conclusive by publication of the notification under sub-section (3) of Section 10 and the excess lands were prohibited to be held under sub-section (3) on and from the date of the commencement of the Act. Such excess land shall vest in the State only from a date specified in the notification. The vesting under Section 10(3) takes effect from the date of publication of the notification under sub-section (3) of Section 10 in the State Gazette with effect from the date specified therein. Such excess land shall vest in the State only from a date specified in the notification. The vesting under Section 10(3) takes effect from the date of publication of the notification under sub-section (3) of Section 10 in the State Gazette with effect from the date specified therein. It would thus be apparent that the State acquired absolute right, title and interest in the excess urban vacant land in the State from the date of the publication of the notification under Section 10(3) of the Ceiling Act and from 28-2-1983 that date the State Government became absolute owner of the excess vacant land free from all encumbrances" ( 6. ) In this appeal the appellant submitted that the proceedings against the appellant abated because die possession of the land was never taken from the appellant and for this purpose it shall be deemed that the proceedings were pending on 17.2.2000 when the Repeal Act came into force. The second contention of the appellant is that when the possession was not taken from the appellant under section 10(6) of the Act now the State is precluded to take possession of the land. ( 7. ) So far as first contention of the appellant that the proceedings against the appellant abated on 17.2.2000 is concerned, no such proceedings were intact pending on 17.2.2000. Section 4 of the Repeal Act specifically provides that the proceedings under the principal Act must be pending immediately before the commencement of Repeal Act before any Court, Tribunal or other authority. However the appellant was unable to point out that before any Court, Tribunal or authority any such proceedings were pending which now may be treated as abated. In absence of any pending proceedings the contention of appellant cannot be accepted. ( 8. ) Now the second contention of appellant may be seen that the possession of the land was never taken from the appellant and the State is precluded from taking possession of the land from the appellant. In this case the competent authority after examining the record of the case had recorded a finding vide order Annexure A-l dated 10.10.2005 that the possession of the land was duly taken on 20.11.1988, the lands were recorded in the name of the State and those entries continued till passing of the order dated 10.10.2005. In this case the competent authority after examining the record of the case had recorded a finding vide order Annexure A-l dated 10.10.2005 that the possession of the land was duly taken on 20.11.1988, the lands were recorded in the name of the State and those entries continued till passing of the order dated 10.10.2005. Even for the sake of argument the contention of appellant is accepted then why appellant had not taken any steps for correction of record for a considerable period of 12 years since 1988. It is not the case of appellant that such entries were not in the knowledge of appellant. The vesting of land is provided under section 3 and section 10(3) of the Act and from the date of issuance of notification under the provisions land vested in the State though the possession of the land was taken exparte by the Government, after issuance of notice under section 10(5) of the Act. ( 9. ) Now another question arises that what is the procedure for taking possession. Apart from section 10 of the principal Act, in the Act no procedure is prescribed for taking possession. Under section 46 of the Act there is no provision for framing such rules prescribing the procedure for taking possession. The Apex Court in Tamil Nadu Housing Board (supra) considered this aspect and held that one of the accepted modes of taking possession of the acquired land is recording of a memorandum or panchnama by the Land Acquisition Officer in the presence of witnesses winged by him and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. The Apex Court held that it is common knowledge that owner/interested person may not cooperate in taking possession of the land. In Larsen and Toubro Ltd. Vs. State of Gujarat and others [ (1998) 4 SCC 387 ] the Apex Court held in para 13 that recording of panchnama in presence of witnesses signed by them as also by Circle Officer evidencing handing over of possession is a sufficient compliance. The revenue records showing the party in possession of land coupled with revenue entries is a sufficient compliance. The revenue records showing the party in possession of land coupled with revenue entries is a sufficient compliance. The Apex Court held that the High Court could not convert itself into a revenue Court and hold that inspite of panchnama and revenue record actual physical possession of the land was not taken over. In view of the settled position of law by the Apex Court in Tamil Nadu Housing Board and Larsen and Toubro Ltd. (supra) the factual position in the present case may be seen. The Additional Collector vide order dated 10.10.2005 Annexure A-l had categorically recorded a finding that the possession of land was taken over exparte and the land was recorded in the name of State and this revenue record is continuing since 1988. In these circumstances, in absence of any challenge to the aforesaid action and existence of the entries for a considerable long period of more than 11 years, the contention of appellant has been rightly turned down by the learned Single Judge that the possession of the land was not taken from him. In view of this finding, report Annexure A-3 cannot be relied on to set aside order dated 10.10.2005. The report does nowhere say that the petitioner was not dispossessed. Some act of trespass or encroachment on the part of the petitioner would not prove his legal possession or that he was not dispossessed in execution of earlier orders. ( 10. ) Section 3 of the Repeal Act meets out two exigencies, one is in respect of saving of vesting of any vacant land under sub-section (3) of Section 10, possession of which was taken over by the State Government or any person duly authorized by the Stale Government in this behalf or by the competent authority. Another situation is provided under sub-section (2) of section 3 where the 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 authorized by the State Government in this behalf or by the competent authority and 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 is refunded to the State Government. But such is not the case of petitioner and both the provisions are not applicable in the present case. ( 11. ) Though learned counsel for appellant tried to convince this Court that by necessary implication under Section 3(2), appellants land cannot be deemed to be vested in the State Government as the possession was not taken over by the appellant but such contingency has not been specifically provided under sub-section (2) of section 3. Even for the sake of argument, the contention of appellant if taken into consideration, then as stated hereinabove, the possession of land was already taken from the appellant and in this regard due formalities were completed by the authorities in the year 1988 itself and since then land is recorded in the name of the State Government. ( 12. ) The sum total of the above discussion is that petitioner was issued notice under section 10(5) of the Act, he was dispossessed and name of the State Government was recorded in the revenue records. The proceedings were not pending any where, therefore the petitioner would not be entitled to the benefit of the Repeal Aet In view of the aforesaid discussion, we do not find any merit in this appeal. This appeal is dismissed with no order as to costs. Appeal dismissed.