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2014 DIGILAW 222 (ORI)

Rama Chandra Bastia v. State of Orissa

2014-04-03

B.R.SARANGI

body2014
JUDGMENT : Dr. B.R. SARANGI, J. The petitioner being the land holder files this application to hold that the action taken subsequent to the notification under Section 10 (1) of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as 'the Act') is nonest in the eye of law and seeks to quash Annexure-3, the letter dated 24.7.2002 issued by the Director, Municipal Administration and Ex-Officio, Addl. Secretary to Government of Odisha, Bhubaneswar and further seeks to hold that since the proceeding under the Urban land (Ceiling and Regulation) Act, 1976 abated, vesting of the surplus urban land with the Government did not arise at all. 2. The epitome of the fact in the case at hand is that the petitioner being a land holder has filed his return/statement under Section 6 of the Urban land (Ceiling and Regulation) Act, 1976 in respect of class 'B' urban agglomeration. On the basis of the return/statement, draft statement was prepared under Section 8 of the Act which was communicated to the petitioner by notice No. 1083 dated 1.8.1993. The petitioner had filed his objection on 12.09.1983 and also submitted a representation on 15.11.1983 seeking for exemption under Section 20 of the Act. By then the final statement under Section 9 of the Act had been prepared and communicated to the petitioner. The petitioner filed an appeal under Section 3 of the Act. The final statement prepared under Section 9 of the Act was set aside by the appellate authority on 3.6.1986 and the matter was remanded back to the competent authority for adjudication on certain points vig. nature of the land on the crucial date of commencement of the Act vis-a-vis the relevant entry in the Hal settlement Record of Rights and the report of the Revenue Supervisor. 3. The competent authority again rendered a finding against the petitioner and maintained the final statement prepared earlier vide order dated 22.6.1987. Appeal preferred by the petitioner against such finding was also dismissed by order dated 28.02.1990. Against such appellate order, the petitioner filed a writ petition bearing O.J.C. No. 3742 of 1990, which was also dismissed by this Court on 7.11.1990 at the stage of admission. The petitioner preferred S.L.P. (Civil) No. 2701 of 1991 against summary dismissal of the writ application which was dismissed by the apex Court on 22.11.1993. Against such appellate order, the petitioner filed a writ petition bearing O.J.C. No. 3742 of 1990, which was also dismissed by this Court on 7.11.1990 at the stage of admission. The petitioner preferred S.L.P. (Civil) No. 2701 of 1991 against summary dismissal of the writ application which was dismissed by the apex Court on 22.11.1993. With the dismissal of the SLP, the finding of facts rendered by the competent authority, confirmed by the appellate authority reached its finality and as such are not available to be interfered with as those have become conclusive for all times to come. 4. During pendency of the proceeding before the competent authority, statutory appeal, the writ application as well as the SLP, the representation dated 15.11.1983 for exemption under the provisions of Section 20 of the Act remained pending and the same is lying undisposed of till date. Notice under Section 10(1) of the Act was issued on 11.5.1984 during pendency of the said representation and steps subsequent to such notification were also taken. It is stated that when the matter was sub-judice before the apex Court, the competent authority by letter No. 1624 dated 15.7.1991 and letter No. 2331 dated 1.10.1993 was pleased to forward the comments upon the representation under Section 20 of the Act to the State Government and the matter is still pending for consideration and no response has also been communicated so far in respect of the representation dated 10.12.1991 under Annexure-1, requesting the competent authority to communicate the decision taken on the representation under Section 20 of the Act. However, a representation vide Annexure-2 dated 16.3.1994 has also been duly acknowledged by opposite party No. 1 and in August, 1996, the opposite party No. 2 recommended for exemption in favour of twenty-two returnees under Section 20 of the Urban Land (Ceiling and Regulation) Act, 1976 and the petitioner's name has been shown at serial seventeen of the said list of returnees. 5. Mr. S.K. Dash, learned counsel for the petitioner states that the possession of the vacant land in excess of the Ceiling limit, which is culled out hereunder from the draft statement has not been taken over till date in the manner laid down under Sub-section (6) of Section 10 of the Act. 5. Mr. S.K. Dash, learned counsel for the petitioner states that the possession of the vacant land in excess of the Ceiling limit, which is culled out hereunder from the draft statement has not been taken over till date in the manner laid down under Sub-section (6) of Section 10 of the Act. The petitioner being in actual physical/cultivating possession of such land is also continuously paying rent to the Government till date, which fact has not been traversed in any manner. The same are given as under :- PART-F Particular of the extent and identified of the lands to be surrendered, State; Orissa, Taluk, Sadar Cuttack, Village : Palsa, Survey No. & Sub-Division No. of other identified No. given for revenue Khata Plot Area 32 536 (P) AC.0.170 128 284 AC.1.220 158 380 AC.0.120 381 AC.0.130 Total Ac.1.640 or 66.35 sq.mtr. 6. It is further stated that without disposing of the application for exemption under Section 20 of the Urban land (Ceiling and Regulation) Act, 1976, steps taken subsequent to the notification under Section 10(1) of the Act is non est in the eye of law. The opposite parties are duty bound to dispose of the application under Section 20 of the Act and any subsequent act beyond the publication of notification under Sub-section (1) of Section 10 of the Urban land (Ceiling and Regulation) Act, 1976 is void and nonest in the eye of law, as the same was made notwithstanding the pendency of the application under Section 20 of the Act. In support of his contention, Mr. S.K. Dash, learned counsel for the petitioner has relied upon the judgments of this Court in Basanta Kumar Sahoo and others v. State of Orissa and other, 1990 (II) OLR 408 and in Rameswara Nath Suthoo v. State of Orissa and another, 70 (1990) CLT 794. It is stated that in the case at hand neither the possession of the land has been taken in the manner laid down under Sub-section (6) of Section 10 of the Act nor any amount has been paid to the petitioner as compensation. Therefore, the proceeding under the Act stood abated without vesting of the aforementioned land. It is stated that in the case at hand neither the possession of the land has been taken in the manner laid down under Sub-section (6) of Section 10 of the Act nor any amount has been paid to the petitioner as compensation. Therefore, the proceeding under the Act stood abated without vesting of the aforementioned land. To support his contention, he has relied upon the judgments of the apex Court in Sulochana Chandrakant Galande v. Pune Municipal Transport and others, 2010 (II) (SC) 971 and of the Karnatak High Court in Mangalore Development Authority v. Leelavathi and others, ILR 2008 Karnataka 5059. It is stated that the provisions of Section 10 (3) of the Act, 1976 are analogous to Section 16 of the land Acquisition Act, 1894, therefore it is only after taking over possession of the acquired land in the prescribed manner, the land would vest absolutely in the State Government and to support this contention, he has relied upon the judgments of the apex Court in Jethmull Bhojraj v. State of Bihar, (1972) 1 SCC 714 , State of Rajasthan v. D.R. Laxmi, (1996) 6 SCC 445 , May George v. Special Tahasildar, (2010) 13 SCC 98 and Raghubir Singh Sehrawat v. State of Haryana, (2012) 1 SCC 792 : 2012 (I) OLR (SC) 436. 7. Mr. P.K. Biswal, learned Addl. Govt. Advocate appearing for the State states that the final statement under Section 9 of the Act having been prepared and communicated, the petitioner preferred an appeal under Section 12 of the Act and the same has been set aside by the appellate authority, and the matter was remanded back to the competent authority for adjudication. The competent authority rendered a finding against the petitioner and maintained the final statement prepared earlier, against which order writ petition was preferred and was dismissed vide order dated 7.11.1990 by this Court at the stage of admission. Against which order, the SLP was preferred by the petitioner before the apex Court vide SLP (Civil) No. 2701 of 1991 and the same having been dismissed on 22.11.1993, the petitioner cannot re-open the selfsame matter in the present writ application which has reached its finality. 8. Against which order, the SLP was preferred by the petitioner before the apex Court vide SLP (Civil) No. 2701 of 1991 and the same having been dismissed on 22.11.1993, the petitioner cannot re-open the selfsame matter in the present writ application which has reached its finality. 8. After hearing learned counsel for the parties and perusing the records, it appears that the findings arrived at by the competent authority on consideration of the final statement published under Section 9 of the Act having reached its finality on being confirmed by the order passed by the apex Court, cannot be reopened, but the fact remains that the application for exemption filed by the petitioner by way of representation dated 15.11.1983 remained pending and was lying undisposed of till date and during pendency of such representation, notice under Section 10(1) of the Act was issued on 11.5.1984 and steps subsequent to the notification has also been taken. During pendency of the proceeding before the apex Court, the competent authority by letter No. 1624 dated 15.7.1991 and letter No. 2331 dated 1.10.1993 forwarded the comments upon the representation under Section 20 of the Urban Land (Ceiling and Regulation) Act, 1976 to the State Government, which is still pending for consideration and no response has also been received so far in respect of the representation dated 10.12.1991 under Annexure-1. Request has been made to communicate the decision taken on the representation filed under Section 20 of the Urban Land (Ceiling and Regulation) Act, 1976, even vide Annexure-2, the representation dated 18.3.1994 which has been duly acknowledged by the authority. But no decision has been taken on the representation filed under Section 20 of the Urban Land (Ceiling and Regulation) Act, 1976. 9. In August, 1996 opposite party No. 2 recommended for exemption in favour of twenty-two returnees under Section 20 of the Urban Land (Ceiling and Regulation) Act, 1976 in which list, the name of the petitioner finds place at serial No. 17. No decision has been taken till date by the State Government on the representation dated 15.11.1983 filed under Section 20 of the Act and the matter is still pending with the Government. 10. No decision has been taken till date by the State Government on the representation dated 15.11.1983 filed under Section 20 of the Act and the matter is still pending with the Government. 10. When the competent authority recommended in favour of a decision for exemption in favour of twenty-two returnees under Section 20 of the Act including the petitioner at serial No. 17 of the list, the same should have received due consideration. In Basanta Kumar Sahoo and others (Supra), this Court has settled a principle of law that the proceeding beyond the stage of Section 10 (2) of the Act should not be allowed to continue prior to disposal of the application under Section 20 of the Act. Applying the law laid down in Basanta Kumar Sahoo and others (supra) to the present case at hand, it is held that the competent authority could not have proceeded beyond Section 10 (2) of the Act before disposal of the application filed under Section 20 of the Act. Any action taken without disposing of the application filed under Section 20 of the Act and/or causing inordinate delay in such disposal, substantially and prejudicially affecting the rights of the petitioner, goes deep to the root of the matter. Therefore, the acquisition of plots in question by the State Government under Section 10 (3) of the Act without disposing of the application for exemption under Section 20 of the Act is void and nonest in the eye of law. Law requires that, the application filed under Section 20 of the Act has to disposed of first, whereafter the proceeding beyond the stage under Section 10 (1) of the Act can be proceeded with. 11. The State of Orissa adopted Urban Land (Ceiling and Regulation) repeal Act, 1999 and consequent upon such adoption, opposite party No. 1 does not retain its authority any more to consider the application submitted by the petitioner under Section 20 of the Urban Land (Ceiling and Regulation) Act, 1976. 11. The State of Orissa adopted Urban Land (Ceiling and Regulation) repeal Act, 1999 and consequent upon such adoption, opposite party No. 1 does not retain its authority any more to consider the application submitted by the petitioner under Section 20 of the Urban Land (Ceiling and Regulation) Act, 1976. As a result of the change in law, subsequent acts beyond the publication of notification under Sub-section (1) of Section 10 of the Urban Land (Ceiling and Regulation) Act, 1976 are void and inoperative in the eye of law inasmuch as the notification under Sub-section (1) of Section 10 was made notwithstanding the pendency of the application under Section 20 of the Urban Land (Ceiling and Regulation) Act, 1976, which is absolutely misconceived one. Opposite party No. 1 vide letter No. Legis (ULC) 27/02, 27981/HUD dated 24.7.2002 in Annexure-3 directed the competent authority to take steps for payment of compensation in respect of the land taken over prior to adoption of Urban Land (Ceiling and Regulation) Repeal Act, 1999. In view of the fact that the statute has been repealed without any saving clause regarding payment of compensation for the land which has already been taken over, opposite party No. 1 instead of directing payment of compensation should, have directed restoration of the land as it is well settled that save and except by operation of law, no land of a citizen is available to be acquired by the Government. Where the process of acquisition is not complete with the payment of compensation by the time the Act stood repealed, the land should be restored. Therefore, the decision of the State Government to pay the compensation and retain the land even when the possession was taken over, cannot be sustained. Apart from the above, with the repeal of Act, 1976 vesting of any vacant land under Sub-section (3) of Section 10 of the Act, 1976 is not affected in case possession has been taken over prior to the repeal of the principal act and such land is not liable to be restored, if the compensation amount so paid by the State Government in respect of such land is not refunded. 12. 12. In the case in hand, neither the possession of the land has been taken in the manner laid down under Sub-section (6) of Section 10 of the Act nor any amount has been paid to the petitioner in respect of such land and consequently the proceeding under the Act stood abated without vesting of the said land. In Sulochana Chandrakant Galanda (supra), the apex Court held that: "xxx xxx 36. Undoubtedly, the Act, 1976, stood repealed by the Act 1999. However, it has no bearing on this case for the reason that proceeding pending in any Court relating to the Act, 1976, stood abated, provided the possession of the land had not been taken from the owner. Therefore, in a case, where the possession has been taken, the repeal of the Act would not confer any benefit on the owner of the land. [Vide pt. Madan Swaroop Shrotiya Public Charitable Trust v. State of U.P. and others., (2006) 6 SCC 325 ; Ghasitey Lal Sahu and another, v. Competent Authority, (2004) 13 SCC 452 ; and Mukaram Ali Khan v. State of Uttar Pradesh and others., (2007) 11 SCC 90 ]. xxx xxx." 13. Similar view has also been taken by the Karnataka High Court in Mangalore Development Authority (supra). In paragraph-12 of Sulochana Chandrakant Galande (supra), the apex Court held that the provisions of Section 10 (3) of the Act, 1976 are analogous to Section 16 of the land Acquisition Act, 1894 and it is only after takeover of the possession of the acquired land in prescribed manner, the land would vest absolutely in the State Government. The same view has also been reiterated by the apex Court in Jethmull Bhojraj, State of Rajasthan, May George and Raghubir Singh Sehrawat (supra). 14. In view of the aforesaid law laid down by the apex Court, since the application under Section 20 of the Urban land (Ceiling and Regulation) Act, 1976 was pending for consideration and no decision has been taken on the same nor any compensation is paid, steps taken subsequent to Section 10 (1) of the Act is void. In that case the repealing act has also no effect. Consequence thereof, the land stood reverted back to the original owner as the proceeding has since been abated. In that case the repealing act has also no effect. Consequence thereof, the land stood reverted back to the original owner as the proceeding has since been abated. Though the application under Section 20 of the Urban Land (Ceiling and Regulation) Act, 1976 is pending for consideration and opposite party No. 2 has requested for exemption in favour of twenty-two returnees under Section 20 of the Urban land (Ceiling and Regulation) Act, 1976 in which the petitioner name finds place at serial No. 17, this Court finds the opposite party No. 1 no more competent to take a decision on the application filed by the petitioner under Section 20 of the Urban land (Ceiling and Regulation) Act, 1976 and act upon the recommendation made by the opposite party No. 2 for exemption in favour of the twenty-two returnees under Section 20 of the Act since adoption of Urban land (Ceiling and Regulation) Repeal Act, 1999. 15. Inevitably, the writ petition is disposed of with a direction to the Opposite Party No. 1 not to hold the land of the petitioner any more as ceiling surplus, by operation of law. Petition disposed of.