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Uttarakhand High Court · body

2014 DIGILAW 187 (UTT)

Kuldeep Singh Bajaj v. State of Uttarakhand

2014-04-21

ALOK SINGH

body2014
Judgment : 1. Undisputedly, petitioner was the owner in possession of the property in question. Undisputedly, petitioner submitted his statements on 7.9.1976 under Section 6 (1) of the Urban Land (Ceiling and Regulation) Act, 1976 on 14.9.1976. 2. The case of the petitioner is that neither any notice was issued nor served on the petitioner under sub-section (5) of Section 10 of the Act nor petitioner ever handed over the possession to the respondents in compliance of the alleged notice under sub-section (5) of Section 10 of the Act nor forceful possession was taken from the petitioner under sub-section (6) of Section 10 of the Act, therefore, the petitioner is entitled for the benefit of repealing of Act No. 33 of 1976 vide Urban Land (Ceiling and Regulation) Repeal Act, 1999. 3. Hon’ble Apex Court in the case of State of U.P. v. Hari Ram reported in AIR 2013 SC 1793 , in paragraph nos. 33, 34, 38 and 39 held as under : 33. 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) to 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 only in a situation which falls under sub-section (6) and not under sub-section (5) to Section 10. Sub-sections (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), than "forceful dispossession" under sub-section (6) of Section 10. 34. Requirement of giving notice under sub-sections (5) and (6) of Section 10 is mandatory. Sub-sections (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), than "forceful dispossession" under sub-section (6) of Section 10. 34. 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 the land holder being dispossessed without notice, therefore, the word 'may' has to be read as 'shall'. 38. Let us now examine the effect of Section 3 of the Repeal Act 15 of 1999 on sub-section (3) to Section 10 of the Act. The Repeal Act 1999 has expressly repealed the Act 33 of 1976. The Object and Reasons of the Repeal Act has already been referred to in the earlier part of this Judgment. Repeal Act has, however, retained a saving clause. The question whether a right has been acquired or liability incurred under a statute before it is repealed will in each case depend on the construction of the statute and the facts of the particular case. 39. 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 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 3 of the Repeal Act.” 4. 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 3 of the Repeal Act.” 4. As per the dictum of the Apex Court, State has to prove that notice under sub-section (5) of Section 10 of the Act was issued and served upon the owner in possession of the property; After service of notice under sub-section (5), either owner has delivered possession to the Authority or after the expiry of period of notice under sub-section (5) forceful possession was taken by the Authority under sub-section (6) of Section 10 of the Act prior to the appointed day i.e. enforcement of Repealing Act. If possession is not proved to be taken by the Authority prior to the appointed day, owner shall be entitled for the benefit of Repealing Act. 5. Perusal of paragraph nos. 6 and 7 of the counter affidavit filed by Sri U.C. Kabadwal, Additional District Magistrate (E), Dehradun reveals that alleged notice, under sub-section (5) of Section 10 of the Act, issued to the petitioner on 24.5.1989, could not be served on the petitioner because petitioner was not found residing at the given address, therefore, the notice under sub-section (5) of Section 10 was allegedly got published in “Doon Darpan” newspaper on 28.8.1989 and thereafter forceful possession was taken from the petitioner under sub-section (6) of Section 10 of the Act on 5.10.1989. 6. Surprisingly, neither copy of the notice allegedly issued under sub-section (5) of Section 10 of the Act nor alleged notice under Section 10 (5) of the Act published in the newspaper is placed on record. Therefore, mere allegation made in paragraph nos. 6 & 7 of the counter affidavit is not sufficient to prove that any notice was ever sent and served on the petitioner under sub-section (5) of Section 10 of the Act. In the absence of service of notice under Section 10 (5) of the Act, forceful possession under sub-section (6) of Section 10 of the Act was not permissible. Moreover, taking over forceful possession is also not proved on the record. 7. Consequently, in the net result, writ petition is allowed. Impugned order dated 5.3.1984 declaring the land as surplus is hereby quashed. Entire proceedings against the petitioner stood abated. 8. Moreover, taking over forceful possession is also not proved on the record. 7. Consequently, in the net result, writ petition is allowed. Impugned order dated 5.3.1984 declaring the land as surplus is hereby quashed. Entire proceedings against the petitioner stood abated. 8. In the peculiar facts and circumstances of the case, no order as to costs.