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2012 DIGILAW 517 (ORI)

Nirmal Chandra Jena v. State of Orissa

2012-11-22

B.N.MAHAPATRA, V.GOPALA GOWDA

body2012
JUDGMENT V. GOPALA GOWDA, C.J. - The petitioners, who are the declarant/owners under the repealing Urban Land (Ceiling and Regulation) Act, 1976, in this writ petition have sought to quash the letter of the competent authority dated 6.6.2002 addressed to the District Sub-Registrar, Cuttack under Annexure-5 instructing him to prevent transfer of Government land by the ceiling surplus land holders by way of registered deed without permission of the Government urging various facts and legal contentions. Further, the petitioners have prayed to restore their rights as available to them over the properties in question. 2. Bereft of unnecessary details, the short facts, which are necessary for effectual adjudication of the case are that: The petitioners are the legal heirs of the purchaser from the original recorded Sabik tenant in Sabik Khata No.49, Sabik plot No.3455 (tank) measuring an area Ac.0.049 and Sabik plot No.3456 (bari) measuring an area AC.0.785 dec. After the settlement operation, the said lands have been recorded as Hal Khata No.1 and Hal Plot No.75 (tank) measuring AC.0.058 dec., Hal Plot No.76 (bari) area AC.0.676 dec. and Hal plot No.134/1015 (private road) area AC.0.014 dec. and the said Hal Khata No.1 has been renumbered as Khata No.04-1. The petitioners are in possession of the said lands, which is evident from the rent receipts granted in favour of the original land holder over Sabik Khata No.242. While the matter stood thus, final statement under Section 9 of the Urban Land (Ceiling and Regulation) Act, 1976 (Act 33 of 1976), hereinafter to be referred to as 'Principal Act', in short, was prepared on 30.11.1987 by opposite party No.3 mentioning the details of the property including the lands of the petitioners by initiating respective ULC cases bearing ULC Case Nos.477, 478 and 479 of 1976. In the said statement, the opposite party No.3 has also mentioned about the exempted lands from ceiling under the Principal Act and the reasons thereof in the remarks column of the said statement enclosed to the letter under Annexure-4. Thereafter, the competent authority issued declaration under Section 10(1) of the Principal Act that the lands of the petitioners including the aforesaid lands are deemed to have been acquired by the State Government with effect from 15.3.1988. Challenging the said declaration, the petitioners preferred appeals before the Revenue Divisional Commissioner (Central Division), Cuttack bearing ULC Appeal Case Nos. 3, 4 and 5 of 1990. Challenging the said declaration, the petitioners preferred appeals before the Revenue Divisional Commissioner (Central Division), Cuttack bearing ULC Appeal Case Nos. 3, 4 and 5 of 1990. However, pending disposal of the said appeals, the Urban Land (Ceiling and Regulation) Repeal Act, 1999, (Act 15 of 1989) hereinafter to be referred to as "Repeal Act" came into force with effect from 22.3.1999, which was adopted by the State Government on 5.4.2002 vide resolution passed in the State Legislature published in the Orissa Gazette Extraordinary No.574 dated 27.4.2002. Section 3(2) thereof provides that where any land is deemed to have vested in the State Government under Sub-section (3) of Section 10 of the Principal Act, 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, if any, has been refunded to the State Government and under Section 4 of the Repeal Act, all proceedings relating to any order made or purported to be made under the Principal Act pending immediately before the commencement of the Principal Act, before any Court, Tribunal or other authority, shall abate. 3. The case of the petitioners is that though a gazette notification under Section 10(3) of the Principal Act was published in respect of the alleged excess vacant and as per the schedule given in the ULC Case Nos.477, 478 and 479 of 1976 and the lands are deemed to have been vested absolutely in the State Government free from all encumbrances, no action under Sections 10(5) or 10(6) of the Principal Act had been taken and the petitioners have been in peaceful possession and enjoyment of the same. 4. While the matter stood thus, opposite party No.3 wrote a letter on 31.5.2002 (Annexure-5) to opposite party No.5 assuming the status of the lands of the petitioners as one under Sections 10(5) and 10(6) of the Principal Act calling upon the opposite party No.5 to prevent transfer of the Government lands by the ceiling surplus land holders. Thereafter the said opposite party No.3 by letter dated 21.6.2004 (Annexure-5/a) sent the sketch map showing the details of the lands surrendered to the Government. Thereafter the said opposite party No.3 by letter dated 21.6.2004 (Annexure-5/a) sent the sketch map showing the details of the lands surrendered to the Government. Challenging the said letters under Annexures-5 & 5(a), the petitioners have preferred this writ petition. 5. Mr. A.R. Dash, learned Counsel appearing for the petitioners submitted that the Repeal Act, which is adopted by the State Government of Odisha pursuant to the resolution of the State Legislature under Article 252(1) of the Constitution, is applicable to the cases, which are pending, and the same stands abated as per Section 4 of the said Repeal Act. It is vehemently contended by him that as on the date of adoption of the Repeal Act, since the ULC appeal cases are pending consideration before the Revenue Divisional Commissioner, Section 4 of the Repeal Act is attracted. Apart from the said legal contention, he has vehemently contended that after passing order under Section 10(3) of the Principal Act, considering the objection to the draft statement prepared by the competent authority on the basis of the declaration made by the land owners regarding the surplus urban land, the Competent Authority declared the land as excess vacant land and the same shall be deemed to have been acquired by the State Government and upon 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. Thereafter, Sub-sections 4(i) & (ii) of Section 10 of the Repeal Act will come into operation that no person shall transfer by way of sale, mortgage, gift, lease or otherwise any excess land specified in the notification and any such transfer made in contravention of the said provision shall be deemed to be null and void and no person shall alter or cause to be altered the use of such excess vacant land. 6. Learned counsel has placed strong reliance upon Sub-section (5) of Section 10, which says that 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 authorized by the State Government in this behalf within thirty days of the service of the notice. It is specifically averred that no such notice has been served upon the petitioners either by the competent authority or any other person duly authorized by the State Government in that behalf. Reliance is also placed upon Sub-section (6) of Section 10, which stipulates that if any person refused 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 dull authorized by such State Government in this behalf and may for that purpose use such force as may be necessary. The said procedure has not been followed either by the competent authority or any other person duly authorized by such State Government in this behalf to take over possession by issuing thirty days notice to the petitioners. Therefore, the submission was made that formal possession was taken by the State Government. Thus, it makes it clear that by the said date, the Repeal Act was adopted by the State Government pursuant to the resolution passed by the State Legislature. Therefore, according to him, the provisions of Sections 3(2)(a)(b) and 4 of the Repeal Act are attracted to the fact situation. He further submitted that even assuming for the sake of argument that the State Government has taken actual physical possession of the said land, but as per Section 11 of the act where any vacant land is deemed to have been acquired by the State Government under Section 10(3), such State Government shall pay to the person or persons having any interest therein the amount as mentioned in the said provision. In the present case, no such amount has been paid either to the petitioners or the predecessors of the petitioners. Therefore, learned counsel submits that the benefit of the provisions of the Repeal Act referred to supra shall be extended to the case of the petitioners. 7. Mr. In the present case, no such amount has been paid either to the petitioners or the predecessors of the petitioners. Therefore, learned counsel submits that the benefit of the provisions of the Repeal Act referred to supra shall be extended to the case of the petitioners. 7. Mr. R.K. Mohapatra, learned Government Advocate seeks to justify the order of the competent authority on the ground that since the land has been vested in the State Government, the provisions of Sections 3(2)(a)(b) or Section 4 of the Repeal Act are not attracted to the case in hand and therefore, the benefit of the provisions of the Repeal Act as adopted by the State Government vide resolution of the State Legislature, is not available to the petitioners in the fact situation. Therefore, he has prayed for dismissal of the writ petition. 8. With reference to the aforesaid factual and legal contentions, the following points would emerge for consideration of this Court. (i) Whether the provisions of Section 3(2)(a)(b) and Section 4 of the Repeal Act adopted by the State Legislature vide resolution published in the Orissa Gazette Extraordinary No.574 dated 27.4.2002 shall be applicable to the case of the writ petitioners? (ii) Whether the mandatory provisions of Sections 10(5) and 10(6) of the Act have been complied with either by the competent authority or by any other person duly authorized by the State Government to take over possession of the declared surplus land of the petitioners? (iii) Whether during pendency of the ULC appeals before the appellate authority, the provisions of the Repeal Act have to be extended to the case of the petitioners? (iv) To what order? 9. To appreciate the points involved in this case, it is necessary to quote the relevant provisions of Sections 3 and 4 of the Repeal Act, which are as under: "3. (iv) To what order? 9. To appreciate the points involved in this case, it is necessary to quote the relevant provisions of Sections 3 and 4 of the Repeal Act, which are as under: "3. (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 authorized 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 authorized 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 be restored unless the amount paid, if any, has been refunded to the State Government. 4. 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 authorized by the State Government in this behalf or by the competent authority." 10. The undisputed fact is that the competent authority passed order declaring the lands of the petitioners as surplus urban land and challenging the said orders, the petitioners moved the appellate authority and during pendency of the appeals, the Principal Act was repealed by Central Act 15 of 1999, which came to be effective from 22.3.1999. The undisputed fact is that the competent authority passed order declaring the lands of the petitioners as surplus urban land and challenging the said orders, the petitioners moved the appellate authority and during pendency of the appeals, the Principal Act was repealed by Central Act 15 of 1999, which came to be effective from 22.3.1999. The said Repeal Act was adopted by the State Legislature vide Notification dated 26.4.2002, which was published in the Orissa Gazette Extraordinary No.574 dated 27.4.2002. Further, pending disposal of the ULC Appeals, which were filed during the year 1990, the Repeal Act came into force. Therefore, the provisions of Section 4 of the Repeal Act are attracted to the fact situation. That apart, learned Addl. Government Advocate failed to produce any record of the Government whether the notification issued by the government in Urban Development Department has been issued in the name of His Excellency, the Governor duly approved by the political executive in spite of adequate opportunity given to the learned Addl. Government Advocate. It is also a fact that, no compensation has been paid by the State Government in lieu of acquisition of the vacant land of the petitioners as required under Section 11 of the Act. 11. The apex Court in Balwant Narayan Bhagade v. M.D. Bhagwat and others, AIR 1975 SC 1767 while dealing with a case under the Land Acquisition Act, 1894, has distinguished "actual possession" and "symbolic possession". In para 26 of the said judgment, it has been held as follows: "In a proceeding under the Act for acquisition of land all interests are wiped out. Actual possession of the land becomes necessary for its use for the public purpose for which it has been acquired. Therefore, the taking of possession under the Act cannot be "symbolical" in the sense as generally understood in Civil Law. Surely it cannot be a possession merely on paper. What is required under the Act is the taking of actual possession on the spot. In the eye of law the taking of possession will have the effect of transferring possession from the owner of the occupant of the land to the Government." "...............It is therefore, clear that taking of possession within the meaning of Section 16 or 17 (1) means taking of possession on the spot. It is neither a possession on paper nor a "symbolical" possession as generally understood in Civil Law. It is neither a possession on paper nor a "symbolical" possession as generally understood in Civil Law. But the question is what is the mode of taking possession? The Act is silent on the point. Unless possession is taken by the written agreement of the 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 that the authority has taken possession of the land. It may be in the form of a declaration by beat of drum or otherwise or by hanging a written declaration on the spot that the authority has taken possession of the land. The presence of the owner or the occupant of the land to effectuate the taking of possession is not necessary. No further notice beyond that under Section 9(1) of the Act is required. When possession has been taken, the owner or the occupant of the land is dispossessed. Once possession has been taken, the land vests in the Government." While dealing with a similar matter like the present one, the apex Court in Vinayak Kashinath Shilkar v. Dy. Collector & Competent Authority and others, 2012(3) Scales 385 held as follows: "It is clear from the above provisions that where the possession of the vacant land has not been taken over by the State Government by any person duly authorized by the State Government in this behalf or by the Competent Authority, the proceedings under the Act would not survive. Mere vesting of the vacant land with the State Government by operation of law without actual possession is not sufficient for operation of Section 3(1)(a) of the Repeal Act." Similar view has also been taken by the apex Court in Ritesh Tewari and another v. State of Uttar Pradesh and others., (2010) 10 SCC 677 wherein it has been held that all proceedings pending before any Court/authority under the Principal Act, stood abated automatically on coming of the Repeal Act into force, provided the possession of the land involved in a particular case had not been taken by the State. 12. 12. In view of the aforesaid legal position enunciated by the apex Court and the factual situation that the possession of the land in question has not been taken by the Government of Odisha, we are satisfied that the petitioners would be entitled to the relief as claimed and we declare that the proceedings under the Act in relation to the subject property stood abated. Therefore, the provisions of Sections 3(2)(a)(b) and 4 of the Repeal Act are attracted to the facts of the case. 13. Apart from that, the provisions of Sections 10(5) and 10(6) of the Act are to be strictly adhered to by the competent authority by issuing notice to the petitioners, who were the declarant/owners by giving thirty days clear notice. In view of the factual contention urged by the petitioners counsel, we also do not find any document evidencing the fact of service of notice, as required under Section 10(5), either by the competent authority or by any person duly authorized by the State Government in this behalf. If upon service of notice under Section 10(5) on the petitioners to deliver vacant possession of the land within thirty days they failed to comply with the same, then the competent authority or duly authorized person by the State Government on its behalf made for that purpose might have used such force, as may be necessary as provided under Section 10(6) of the Act. Therefore, without compliance of the statutory provisions as provided under Sections 10(5) & 10(6) of the Act, taking over possession of the land declared as surplus by the opposite parties would entail a serious civil consequence, as a result of which the petitioners will be deprived of their ownership of such land, which would be in violation of the constitutional rights guaranteed under Article 300-A of the Constitution. In the case of Lachhman Dass v. Jagat Ram and others, (2007) 10 SCC 448 , the Supreme Court has held as follows: "...... To hold property is a constitutional right in terms of Article 300-A of the Constitution of India. It is also a human right. Right to hold property, therefore, cannot be taken away except in accordance with the provisions of a stature. To hold property is a constitutional right in terms of Article 300-A of the Constitution of India. It is also a human right. Right to hold property, therefore, cannot be taken away except in accordance with the provisions of a stature. If a superior right to hold a property is claimed, the procedures therefore must be complied with..............." It is necessary for this purpose to refer to the judgment of the Supreme Court reported in Babu Verghese and others v. Bar Council of Kerala, AIR 1999 SC 1281 , wherein the apex Court referring the decision of the Privy Council and earlier decisions laid down that statute prescribes a particular procedure to do in a particular manner and it must be done in that manner or not at all. It is worthwhile to extract para 31 & 32 of the said judgment, which are as follows: 31. It is the basic principle of law long settled that if the manner of going a particular act is prescribed under any Statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor, (1875) 1 Ch D 426 which was followed by Lord Roche in Nazir Ahmad v. King Emperor, 63 Ind App 372 : AIR 1936 PC 253 who stated as under: "Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all." 32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, 1954 SCR 1098 : AIR 1954 SC 322 and again in Deep Chand v. State of Rajasthan, (1962) 1 SCR 662 : AIR 1961 SC 1527 . These cases were considered by a Three Judge Bench of this Court in State of Uttar Pradesh v. Singhara Singh, AIR 1964 SC 358 : (1964) 1 SCWR 57 and the rule laid down in Nazir Ahmad's case (supra) was again upheld. The rule has since been applied to the exercise of jurisdiction by Courts and has also been recognized as a salutary principle of administrative law. In view of the foregoing discussions, point Nos.(i) and (ii) are answered in favour of the petitioners. 14. The rule has since been applied to the exercise of jurisdiction by Courts and has also been recognized as a salutary principle of administrative law. In view of the foregoing discussions, point Nos.(i) and (ii) are answered in favour of the petitioners. 14. Point No.(iii) is required to be answered in favour of the petitioners and against the opposite parties. There is no dispute that against the impugned orders of the competent authority, the petitioners preferred appeal before the appellate authority and during pendency of the appeal, the Repeal Act came into force and the same has been adopted by the State Legislature with effect from 26.4.2002, as a result of which all proceedings including the order passed by the competent authority publishing the notification under Section 10(3) of the Act abated. Since the proceedings under the principal Act are pending before the appellate authority, the provisions of the Repeal Act are applicable to the case of the petitioners. Accordingly point No.(iii) is answered in favour of the petitioners. 15. Since point Nos. (i) to (iii) are answered in favour of the petitioners, this Court is required to hold that the letter of the competent authority dated 31.5.2002 requesting the registering authority, opposite party No.5 to prevent transfer of the land in question by the ceiling surplus land holders and the subsequent letter dated 21.6.2004 (Annexure-5/a) furnishing the surrendered sketch map, are null and void and are accordingly quashed. The petitioners are entitled to get the benefit of the provisions of Sections 3(2)(a)(b) and 4 of the Repeal Act. 16. The writ petition is allowed. No cost. Writ petition allowed.