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Uttarakhand High Court · body

2015 DIGILAW 223 (UTT)

Sunil Kumar Gupta v. State of Uttarakhand

2015-04-21

ALOK SINGH

body2015
ORDER Undisputedly, Sri Paripurnanand Painuly was the owner in possession of the property in question. Undisputedly, Sri Paripurnanand Painuli submitted his statements under Section 6 (1) of the Urban Land (Ceiling and Regulation) Act, 1976 on 14.9.1976. Undisputedly, Sri Paripurnanand Painuly sold property in question in favour of Moolraj Singh and Ravindar Kumar Talwar vide sale deed dated 11.3.1980. Undisputedly, names of Sri Moolraj Singh and Sri Ravindar Kumar Talwar, purchasers, were mutated in the revenue records vide order dated 29.11.1980. Undisputedly, Sri Moolraj Singh and Sri Ravindar Kumar Talwar, thereafter, sold property in question in favour of the petitioner vide sale deed dated 20.12.1983. Undisputedly, thereafter, name and possession of the petitioner was recorded in the revenue record over the property in question vide order dated 4.3.1984. 2. Mr. S.K. Jain, learned Senior Counsel appearing for the petitioner contends that Sri Paripurnanand Painuly had expired prior to issuance of alleged notice under Section 10(5) of the Act dated 21.1.1987, therefore, there was no question of issuance and service of notice under Section 10(5) of the Act on Sri Paripurnanand Painuly. Further, sale made by Sri Paripurnanand Painuly in favour of Moolraj Singh and Ravindar Kumar Talwar on 11.3.1980 was valid and was not hit by any provision of Urban Land (Ceiling and Regulation) Act, 1976. In the same manner, sale dated 20.12.1983 by Sri Moolraj Singh and Sri Ravindar Kumar Talwar in favour of the petitioner was valid and not hit by any provision of Urban Land (Ceiling and Regulation) Act, 1976. 3. According to Mr. R.C. Aray, learned Standing Counsel appearing for respondent Nos.1 & 2, notice under sub-section (5) of Section 10, Annexure No.9 to the counter-affidavit, was issued to Sri Paripurnanand Painuly on 21.1.1987. He, however, does not dispute that Sri Paripurnanand Painuly was not alive on 21.1.1987, therefore, issuance of notice against dead person was not legal. Notice against dead person shall be treated as non est in the eyes of law. 4. Section 10 of Urban Land (Ceiling and Regulation) Act, 1976 reads as under: ' 10. Acquisition of vacant land in excess of ceiling limit. Notice against dead person shall be treated as non est in the eyes of law. 4. Section 10 of Urban Land (Ceiling and Regulation) Act, 1976 reads as under: ' 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- (i) such vacant land is to 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. (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 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. (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 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. Explanation.- In this section, in sub- section (1) of section 11 and in sections 14 and 23, 'State Government' in relation to- (a) any vacant land owned by the Central Government, means the Central Government; (b) any vacant land owned by any State Government and situated in a Union territory or within the local limits of a cantonment declared as such under section 3 of the Cantonments Act, 1924, (2 of 1924) means that State Government. 5. Having perused sub-section (4) of the Act, I have no hesitation to hold that transfer made by the owner after publication of notification under sub-section (1) shall be void. Any transfer made prior to publication of notification under sub-section (1) shall not be void, however, transferee shall stand in the shoe of the seller and shall be abide by the ultimate decision in the ceiling proceedings. Purchasers, in that event should be heard at the subsequent stage. 6. In the present case, notification under sub-section (1) was published on 13.9.1986; Therefore, both the sale deeds in favour of Moolraj Singh - Ravindar Kumar Talwar and petitioner dated 11.3.1980 and 20.12.1983 were valid and were not hit by sub-section (4) of Section 10 of the Act. Moreover, mutation were accorded by the Revenue Authorities, treating the sale deed valid in favour of the purchasers including the petitioner. 7. 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. Moreover, mutation were accorded by the Revenue Authorities, treating the sale deed valid in favour of the purchasers including the petitioner. 7. 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. 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. 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.' 8. 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. 9. 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. 9. In view of the admitted position of facts that Sri Paripurnanand Painuly sold property in question in favour of Moolraj Singh and Ravindar Kumar Talwar way-back on 11.3.1980 and thereafter names of Sri Moolraj Singh and Ravindar Kumar Talwar were mutated in the revenue records vide mutation order dated 29.11.1980 and thereafter Sri Moolraj Singh and Ravindar Kumar Talwar sold the property in question in favour of the present petitioner vide sale deed dated 20.12.1983 and name and possession of the petitioner was recorded in the revenue record vide order dated 4.3.1984, therefore, on 21.1.1987, on the date of issuing alleged notice under sub-section (5) of Section 10, petitioner was owner in possession of the property in question. Consequently, notice under sub-section (5) of Section 10 of the Act ought to have been issued and served on the present petitioner, which was neither sent nor served on the present petitioner. Therefore, there is no question of delivering possession by the petitioner in compliance of sub-section (5) of Section 10 to the State Government and there was no occasion for the State Government to take forceful possession under sub-section (6) of Section 10 from the petitioner. 10. In view of the undisputed facts, as mentioned hereinbefore, on 21.1.1987, petitioner was recoded as tenure holder in possession in the revenue record of the property in question. It is not made clear by the State that if on 21.1.1987, petitioner was recorded as owner in possession of the property in question, as to why notice under sub-section (5) of Section 10 of the Act was not issued in favour of the petitioner and was issued in favour of Sri Paripurnanand Painuly, who had already sold the property in question. 11. In view of the above, I am of the considered opinion that in the present case, State Government has miserably failed to prove that notice under sub-section (5) of Section 10 was ever issued and served upon to the petitioner and possession was either handed over by the petitioner or forceful possession was taken from the petitioner under sub-section (6) of Section 10 of the Act. Therefore, the delivery of possession on the date of enactment of Repealing Act of 1999 could not be proved by the State. Consequently, petitioner is entitled for the benefit of Repealing Act of 1999. In view of the Repealing Act, impugned order dated 5.3.1984 stands quashed. 12. In the net result, present petition is allowed. Orders declaring the land as surplus land stand quashed. Entire proceedings against the petitioner and Sri Paripurnanand Painuly stood abated w.e.f. 18.3.1999 on the date of enforcement of Repealing Act, 1999. 13. In the peculiar facts and circumstances of the case, no order as to costs. Petition allowed.