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2020 DIGILAW 282 (MP)

Rohini Prasad Patel v. State Of Madhya Pradesh

2020-02-20

SANJAY DWIVEDI

body2020
ORDER 1. Since record of the ceiling case is available and learned counsel for the parties are ready to argue the matter, therefore, it is heard finally. 2. By the instant petition, filed under Article 226 of the Constitution of India, the petitioner is seeking following relief:- "(i) Set aside the order dated 16.03.2018 (Annexure P/2). (ii) Record the name of the Petitioner in the Revenue Entries in relation to Old Khasra No.95, New Khasra No.23 of Area 0.49 Hectare and New Khasra No.25 of Area 0.94 Hectare, Total Area : 1.43 Hectare situated at Mauja Chaukital, Tehsil and District Jabalpur (MP). (iii) That, any other relief which is suitable in the facts and circumstances of the case in favour of the Petitioner may also be granted in the interest of justice, (iv) That, the cost of this petition may also be awarded to the Petitioner." 3. Laconically, the facts leading to filing the instant petition are that the petitioner was bhoomi-swami of the agricultural land bearing old Khasra No.95, new Khasra No.23 of area 0.49 hectare and new Khasra No.25 of area 0.94 hectare total area 1.43 hectare situated at Mauja Chaukital, Tahsil and District Jabalpur. As per the petitioner, he is still in possession over the said land. The petitioner submitted a statement under Section 6 of the Urban Land (Ceiling and Regulation) Act, 1976 (for brevity the 'Act, 1976') before the Competent Authority as the Authority declared 32491.22 square meter land as surplus. Thereafter, in a ceiling case registered as case No.647/A-90 (B-9)/1981-82, a draft statement was issued as per the provisions of Section 8(1) of the Act, 1976 inviting objections. The petitioner submitted his objection on 08.07.1985 then finally on 20.07.1989, the Competent Authority passed an order considering the objection raised by the petitioner and declared 32491.22 square meter land as surplus and directed that notice be issued under Section 9 of the Act, 1976 then on 22.07.1989, notice of Section 9 was issued. Notice dated 23.10.1993 issued under Section 10(5) of the Act, 1976 is also available on record addressed to the petitioner to handover the possession of the land in question within 30 days otherwise ex-parte possession would be taken over. Letter related to possession over the land is also available on record but the same is undated. 4. Notice dated 23.10.1993 issued under Section 10(5) of the Act, 1976 is also available on record addressed to the petitioner to handover the possession of the land in question within 30 days otherwise ex-parte possession would be taken over. Letter related to possession over the land is also available on record but the same is undated. 4. Thereafter, a petition i.e. W.P. No. 16538/2011 in the shape of Public Interest Litigation was filed raising grievance therein that thousands of villagers have not been noticed and without intimating them, panchanamas were prepared in the office of the respondents and proceedings under the Act, 1976 have been concluded showing that the lands of the petitioners have been vested in the State Government declaring the same surplus and accordingly, revenue records were also corrected. The Division Bench of this Court vide order dated 30.09.2011 disposed of the petition granting liberty to the petitioners therein to approach the Competent Authority for ventilation of their grievances. It was further observed that if the petitioners or the aggrieved persons approached the Competent Authority by filing a representation within 30 days then the Competent Authority would consider and decide their grievance expeditiously. Thereafter, the present petitioner filed a representation dated 18.11.2011 before the Competent Authority raising his grievance and the Competent Authority has passed the order dated 16.03.2018 (Annexure-P/2) which is impugned saying that the Authority has no competence to consider the claim of the petitioner for returning his land as there was no provision empowering the Competent Authority under the provisions of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (for brevity the 'Repeal Act, 1999') and as such, rejected the representation of the petitioner. 5. The petitioner, therefore, filed the instant petition challenging the order impugned passed by the Competent Authority mainly on the ground that it was improper on the part of the Authority to say that he had no competence to entertain the representation or to pass any order in pursuance to the provisions of the Repeal Act, 1999 whereas as per the petitioner, Section 4 of the Repeal Act, 1999 very categorically provides that under the provisions of the Act, 1976, if the possession has not been taken in accordance with law, the proceeding initiated under the provisions of the Act, 1976 for declaring the land surplus shall abate. The petitioner has further contended that possession of his land has not been taken by the respondents and no such mandatory requirement for issuing the notice under Sections 10(5) and 10(6) of the Act, 1976 has also been followed. It is further contended by the petitioner that no notice was ever issued to him under Sections 10(5) and 10(6) of the Act, 1976. It is contended by the petitioner that from the notice of Section 10(5) of the Act, 1976 which is available on record, it is clear that the same was never served upon him and, therefore, notice under Section 10(6) of the Act, 1976 was also required as the possession of the land in question had not been handed over to the respondents by the petitioner. As per the petitioner, no notice under Section 10(6) of the Act, 1976 was issued to him and the possession letter which is available on record is fabricated which does not contain signature of the present petitioner/land owner and even the same does not contain the signature of the witnesses and as such, the mandatory requirement has not been fulfilled. Learned counsel for the petitioner submits that in view of the law laid down by the Hon'ble Supreme Court in the case of State of Uttar Pradesh vs. Hari Ram reported in (2013) 4 SCC 280 the proceedings initiated against the petitioner under the provisions of the Act, 1976 are illegal and treated to be abated. To bolster his contention, learned counsel for the petitioner has also placed reliance upon the decisions reported in SLP No.14985/2018 parties being [State of Madhya Pradesh & others Vs. Thamman Chand Koshta], W.A. No.509/2017 parties being [Brijesh Gautam Vs. State of Madhya Pradesh & others], W.A. No.558/2016 parties being [State of Madhya Pradesh & others Vs. Rajubai & others], W.P. No.7255/2013 parties being [Radheshyam Raikwar Vs. State of Madhya Pradesh], W.A. No.1055/2017 parties being [The State of Madhya Pradesh Vs. Smt. Anees Fatima], W.A. No.854/2014 parties being [Hemraj Kachhi Vs. State of Madhya Pradesh & others] and also in W.P. No.11515/2013 parties being [Smt. Gayatri Devi & others Vs. The State of Madhya Pradesh & another]. 6. State of Madhya Pradesh], W.A. No.1055/2017 parties being [The State of Madhya Pradesh Vs. Smt. Anees Fatima], W.A. No.854/2014 parties being [Hemraj Kachhi Vs. State of Madhya Pradesh & others] and also in W.P. No.11515/2013 parties being [Smt. Gayatri Devi & others Vs. The State of Madhya Pradesh & another]. 6. The respondents have filed their reply stating therein that notice dated 30.01.1993 issued under Section 10(5) of the Act, 1976 was served upon the petitioner and when he did not handover the possession, forceful possession was taken on 06.12.1993 and as per the stand taken by the respondents, the mandatory requirement has been complied with. They have also annexed a copy of notice issued under Section 10(5) of the Act, 1976 alongwith the possession letter showing that the possession over the land in question has been taken over. They have also stated that in view of the law laid down by the Supreme Court in the case of State of Assam vs. Bhaskar Jyoti Sharma reported in (2015) 5 SCC 321 , the petition is not maintainable as the claim raised by the petitioner is barred by time and the petition can be dismissed on the ground of delay and laches. As per the respondents, when the possession of the land in question was taken in the year 1993, the petitioner did not challenge the same and now after lapse of sufficient time,he cannot be permitted to reopen the issue and his petition is liable to be dismissed on the ground of delay and laches. 7. I have heard the arguments advanced by learned counsel for the parties and perused the record meticulously. 8. Since the respondents have raised an objection regarding maintainability of the petition on the ground of delay and laches and placed reliance upon a decision of the Hon'ble Supreme Court in the case of Bhaskar Jyoti Sharma (supra), it is appropriate to decide the said issue first. From the facts and circumstances of the case, as discussed hereinabove, undisputedly in the year 2011, a petition in the shape of Public Interest Litigation was filed by the petitioners, which was disposed of by the Division Bench of this Court vide order dated 30.09.2011 directing the petitioners therein to approach the Competent Authority through a representation raising their grievance. From the facts and circumstances of the case, as discussed hereinabove, undisputedly in the year 2011, a petition in the shape of Public Interest Litigation was filed by the petitioners, which was disposed of by the Division Bench of this Court vide order dated 30.09.2011 directing the petitioners therein to approach the Competent Authority through a representation raising their grievance. In the said petition, the issue was that number of persons whose lands were declared surplus and vested in the State Government in pursuance to the provisions of the Act, 1976, no intimation was given to the affected persons and no panchnamas were prepared but in the revenue record, it is shown that lands have been declared surplus and possession thereof has also been taken. In pursuance to the direction given by the Division Bench, the petitioner in the present petition, for ventilation of his grievance, has moved a representation before the Competent Authority and the said Authority, in turn, has passed the order impugned dated 18.03.2018. Therefore, the contention of the respondents that the petitioner cannot raise this issue after lapse of sufficient time, is not appropriate because in the said case, a liberty had been afforded by the Division Bench to the petitioners therein and as the same has been exercised by the petitioner in the present petition and the Competent Authority has rejected his representation and passed the order impugned dated 18.03.2018, therefore, it cannot be said that there is delay in filing the present petition. In fact the Division Bench of this Court in Hemraj Kachhi (supra) has also considered the aspect of delay in raising the dispute regarding illegal proceeding of the Act, 1976 and asking the same be declared abated in view of the provisions of the Repeal Act, 1999. The Division Bench has observed that there is no provision under the Repeal Act, 1999 providing statutory period of limitation to raise the dispute, therefore, delay is not a ground. In the said writ appeal, the Division Bench has observed as under:- "We are conscious of the fact that the Additional Collector has also noted that the application has been filed after expiry of 11 years. The fact that it is filed after 11 years, can be the basis to non-suit the appellant will depend on whether the repeal Act provides statutory period within which the application should be submitted. The fact that it is filed after 11 years, can be the basis to non-suit the appellant will depend on whether the repeal Act provides statutory period within which the application should be submitted. From the provisions of the repeal Act it appears that on coming into force of the repeal Act, if the person had continued to be in lawful possession of the surplus land until that date, the title in respect of the said land would stand revested and the declaration about the surplus holding and the vesting of land continued u/s 10(3) cannot be taken forward having lapsed. These are the matters which the Authority ought to have examined keeping in mind the dictum of the Apex Court in State of U.P. vs. Hariram (supra) and in particular the provisions of the Urban Land (Ceiling & Regulation) RepealAct, 1999." The case on which the respondents have placed reliance shall apply in a case where actual physical possession of the land is taken from the land owner. The Hon'ble Supreme Court while dealing with the case involving the fact in which actual physical possession was taken over from the erstwhile land owner on 07.12.1991 and as such, the grievance raised on Section 10(5) of the Act, 1976 has been held to have been raised within the reasonable time of such dispossession. The Hon'ble Supreme Court has further observed that if the owner did not do so, forcibly taking over the possession would acquire legitimacy by sheer lapse of time and dealing with Section 3(l)(a) of the Act, 1976, the Repeal Act, 1999 has held that the petition under Article 226 is not maintainable for seeking declaration of proceeding initiated under the provisions of Act, 1976 abated. It is clear from the view of the Hon'ble Supreme Court that the Apex Court was very specific and has applied the point of delay and laches in a case where actual physical possession has been taken over. However, in the present case, the issue involved is that no possession has been taken over from the petitioner and he is still in possession over the land in question, no notice under Section 10(5) of the Act, 1976 was served upon him and further, no forceful possession was taken after issuing the notice under Section 10(6) of the Act, 1976. As per the petitioner, the document i.e. notice under Section 10(5) was never served upon him and also notice under Section 10(6) was not issued and the possession letter is fabricated and has no legal sanctity in the eyes of law and the same does not indicate that one sided and forceful possession of the land in question has been taken over. Accordingly, in my opinion, the case relied upon by the respondents has no applicability in the present facts and circumstances of the case, therefore, the present petition cannot be dismissed on the ground delay and laches and thus, the objection raised by the respondents is, therefore, rejected. 9. From a bare perusal of the documents filed by the petitioner as also the record produced by the respondents, it is clear that the notice issued under Section 10(5) of the Act, 1976 does not contain any endorsement as to when it got served upon the petitioner. The petitioner has come with a very specific stand that the notice under Section 10(5) of the Act, 1976 has neither been issued nor served upon him then it was obligatory for the respondents to substantiate that notice was not only issued but served upon the petitioner. Instead of doing so, the respondents have filed a very casual reply and in paragraph-5.1 of the reply, they have simply said that the notice dated 30.01.1993 issued under Section 10(5) of the Act, 1976 was served upon the petitioner. Although, the said notice which is available on record as Annexure-R/1 does not contain any signature of the witnesses before whom it was served upon the petitioner and in fact there was no corroborating order-sheets of the Ceiling Authorities showing that notice under Section 10(5) of the Act, 1976 was ever issued upon the petitioner. As per reply, it reveals that the date of notice issued under Section 10(5) of the Act, 1976 is 30.01.1993 whereas from a perusal of the said documents, it can be seen that the case was fixed for 23.10.1993. It indicates that the dates are fabricated because there cannot be a gap of almost nine to ten months between the date of notice and fixing the date for reporting of taking possession. Further, the record does not contain any notice issued under Section 10(6) of the Act, 1976 even the reply of the respondents is silent to that regard. It indicates that the dates are fabricated because there cannot be a gap of almost nine to ten months between the date of notice and fixing the date for reporting of taking possession. Further, the record does not contain any notice issued under Section 10(6) of the Act, 1976 even the reply of the respondents is silent to that regard. The possession letter which is also available on record, does not contain any date as to when the possession has been taken over so also before whom it was taken. The said letter does not contain signature of the witnesses, therefore, the said letter has no legal sanctity in the eyes of law. The record submitted by the respondents also does not indicate as to when notice under Section 10(5) of the Act, 1976 was issued and on failure to handover the possession of the land in question, proceedings of Section10(6) of the Act, 1976 were initiated and as to when, the possession has been taken over forcefully. As contended by the petitioner that he is still holding the possession over the land and the same is being cultivated by him indicating that no possession has been taken over from him under the proceedings of Act, 1976, therefore, in view of the Section 3 of the Repeal Act, 1999, the proceeding of the Act, 1976 can be held abated. 10. Considering the contention raised by the learned counsel for the petitioner that he has confined his arguments alleging that there was clear violation of compliance of the mandatory requirements of Sections 10(5) & 10(6) of the Act, 1976, this Court is only examining the contention of the petitioner in the light of the law laid down by the Hon*ble Apex Court and also by this Court on which the petitioner has placed reliance. As per the facts available on record as also discussed in preceding paragraphs, admittedly, there was no notice issued under Sections 10(5) and 10(6) of the Act, 1976. Not only this but there is no material adduced by the respondents nor is it clear from the record substantiating that the notice under Section 10(5) of the Act, 1976 has been served upon the petitioner. Not only this but there is no material adduced by the respondents nor is it clear from the record substantiating that the notice under Section 10(5) of the Act, 1976 has been served upon the petitioner. Thus, in view of the law laid down by Hon*ble the Apex Court in the case of Hari Ram (supra) the ceiling proceedings initiated against the petitioner cannot be said to be in accordance with the requirement of law. This aspect has been considered by the Division Bench of this Court in the case of Gayatri Devi (supra) and also in other cases in which, the petitioner has placed reliance and in all the cases, it has been held that issuance of notice under Sections 10(5) and 10(6) of the Act, 1976 is a mandatory requirement and if the same is not followed, the proceedings initiated by the Authorities under the provisions of the Act, 1976require to be set aside. Furthermore, this Court on earlier occasion has dealt with the similar issue in Writ Petition No. 18827/2010 parties being [Mangal Prasad Koshta & others Vs. State of M.P. & others] and has observed as under :- 10. The Division Bench of this Court in the case of Rajubai and others (supra) and Thamman Chand Koshta (supra) has dealt with the similar situation and after taking note of the provisions of Section 10 of the Principal Act has observed as under:- "08. Before we examine the respective contention of the parties, the relevant provisions of the Statute need to be reproduced:- 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 subsection (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. 09. In terms of Section 10 (1) of the Act, it was incumbent upon the competent authority to give notice to all person interested in such vacant land either personally or through their agent by giving particulars of their interest as is required to be given under Section 10 of the Act. Since the petitioner was in possession and such possession having been recognized by virtue of an order passed by the Tehsildar on 29th October, 1987, thus the writ petitioner was an interested party and hence the notice was required to be issued before publication of notification under Section 10(3) of the Act. 10. Still further, in terms of sub Section (5) of Section 10 of the Act, the competent authority is required to serve a notice in writing to deliver possession, who may be in possession of the land which vested in the State Government. The writ petitioner was in possession of the land which is evident from the mutation sanctioned on 29.10.1987. It was only on 15.2.1999 (Annexure R-4), the request of the petitioners not to take possession was declined for the reason that the land vest with the State under the Act. Such order, in fact, approves the possession of the petitioners over the land in question. Still further the Panchnama(Annexure R-3) again shows that the land was in possession of the writ petitioners, therefore, in the absence of notice as required under sub Section (5) of Section 10 of the Act, the land would be covered by Section 3 of the repealing Act as it will not vest with the State. 11. The Hon'ble Supreme Court in a judgment reported as (2013) 4 SCC 280 State of U.P. vs. Hari Ram in the context of the Act, held that the de-facto possession is required to be taken by the State and not de jure. 11. The Hon'ble Supreme Court in a judgment reported as (2013) 4 SCC 280 State of U.P. vs. Hari Ram in the context of the Act, held that the de-facto possession is required to be taken by the State and not de jure. The Court held that the Act deals with deemed vesting or deemed acquisition, but the keeping in view the provisions of the Act, unless the possession is taken in terms of Section 10 (5) of the Act, the land cannot be said to be vested with the State Government. The proceedings of taking possession Annexure-R3 shows that it is only a paper possession without taking actual possession from the land owner and without giving notice to person who is in possession. The person in possession is required to be given notice under sub-sections (5) and (6) of Section 10. The relevant extract from the Supreme Court judgment read as under :- "30. Vacant land, it may be noted, is not actually acquired but deemed to have been acquired, in that deeming things to be what they are not. Acquisition, therefore, does not take possession unless there is an indication to the contrary. It is trite law that in construing a deeming provision, it is necessary to bear in mind the legislative purpose. The purpose of the Act is to impose ceiling on vacant land, for the acquisition of land in excess of the ceiling limit thereby to regulate construction on such lands, to prevent concentration of urban lands in the hands of a few persons, so as to bring about equitable distribution. For achieving that object, various procedures have to be followed for acquisition and vesting. When we look at those words in the above setting and the provisions to follow such as sub-sections (5) and (6) of Section 10, the words "acquired" and "vested" have different meaning and content. Under Section 10(3), what is vested is de jure possession not de facto, for more reasons than one because we are testing the expression on a statutory hypothesis and such an hypothesis can be carried only to the extent necessary to achieve the legislative intent. 31. The Vesting' in sub-section (3) of Section 10, in our view, means vesting of title absolutely and not possession though nothing stands in the way of a person voluntarily surrendering or delivering possession. 31. The Vesting' in sub-section (3) of Section 10, in our view, means vesting of title absolutely and not possession though nothing stands in the way of a person voluntarily surrendering or delivering possession. The court in Maharaj Singh vs. State of UP and Others (1977) 1 SCC 155 , while interpreting Section 117(1) of U.P. Zamindari Abolition and Land Reform Act, 1950 held that Vesting' is a word of slippery import and has many meaning and the context controls the text and the purpose and scheme project the particular semantic shade or nuance of meaning. The court in Rajendra Kumar vs. Kalyan (dead) by Lrs. (2000) 8 SCC 99 held as follows: "We do find some contentious substance in the contextual facts, since vesting shall have to be a "vesting" certain. 'To vest, generally means to give a property in." (Per Brett, L.J. Coverdale v. Charlton. Stroud's Judicial Dictionary, 5th edn. Vol. VI.) Vesting in favour of the unborn person and in the contextual facts on the basis of a subsequent adoption after about 50 years without any authorization cannot however but be termed to be a contingent event. To "vest", cannot be termed to be an executor devise. Be it noted however, that "vested" does not necessarily and always mean "vest in possession" but includes "vest in interest" as well. 33. Before we examine sub-section (5) and sub-section (6) of Section 10, let us examine the meaning of sub-section (4) of Section 10 of the Act, which says that during the period commencing on the date of publication under sub-section (1), ending with the day specified in the declaration made under sub-section (3), no person shall transfer by way of sale, mortgage, gift or otherwise, any excess vacant land, specified in the notification and any such transfer made in contravention of the Act shall be deemed to be null and void. Further, it also says that no person shall alter or cause to be altered the use of such excess vacant land. Therefore, from the date of publication of the notification under sub-section (1) and ending with the date specified in the declaration made in subsection (3), there is no question of disturbing the possession of a person, the possession, therefore, continues to be with the holder of the land. Peaceful dispossession 34. Therefore, from the date of publication of the notification under sub-section (1) and ending with the date specified in the declaration made in subsection (3), there is no question of disturbing the possession of a person, the possession, therefore, continues to be with the holder of the land. Peaceful dispossession 34. Sub-section (5) of Section 10, for the first time, speaks of "possession" which says that where any land is vested in the State Government under sub-section (3) of Section 10, the competent authority may, by notice in writing, order any person, who may be in possession of it to surrender or transfer possession to the State Government or to any other person, duly authorised by the State Government. 35. If de facto possession has already passed on to the State Government by the two deeming provisions under sub-section (3) of Section 10, there is no necessity of using the expression "where any land is vested" under sub-section (5) of Section 10.Surrendering or transfer of possession under sub-section (3) of Section 10 can be voluntary so that the person may get the compensation as provided under Section 11 of the Act early. Once there is no voluntary surrender or delivery of possession, necessarily the State Government has to issue notice in writing under sub-section (5) of Section 10 to surrender or deliver possession. Sub-section (5) of Section 10 visualises a situation of surrendering and delivering possession, peacefully while subsection (6) of Section 10 contemplates a situation of forceful dispossession. Forceful dispossession 36. 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. Subsection (6) of 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. Subsection (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 to only in a situation which falls under sub-section (6) and not under sub-section (5) of Section 10. Forcible dispossession of the land, therefore, is being resorted to only in a situation which falls under sub-section (6) and not under sub-section (5) of 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), then "forceful dispossession" under sub-section (6) of Section 10. 37. The 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 in the landholder being dispossessed without notice, therefore, the word "may" has to be read as "shall"." 12. Since the revenue record records the possession of the writ petitioners and also the proceedings to take over possession, therefore, the writ petitioner was entitled to a notice to deliver possession to the State in terms of Section 10(5) of the Act and on failure of the writ petitioners to hand over possession to use force in terms of Sub Section 6 of Section 10 of the Act. Since the Repeal Act contemplates that if possession has not been taken, the land will not vest with the State Government. Therefore, the land in question would not vest with the State Government." 11. It is also apt to mention here that the order passed by this Court in the case of Thamman Chand Koshta (supra) has been affirmed by the Apex Court in Special Leave Petition No. 14985/2018 vide order dated 16.07.2018. Similarly, in a writ petition No. 11515/2013 Gayatri Devi (supra), the writ Court has also held that the scope and applicability of provision of Sections 10(5) and 10(6) of the Principal Act, taking shelter of the law laid down by the Apex Court in the case of Hari Ram (supra), which reads as under :- "7. Similarly, in a writ petition No. 11515/2013 Gayatri Devi (supra), the writ Court has also held that the scope and applicability of provision of Sections 10(5) and 10(6) of the Principal Act, taking shelter of the law laid down by the Apex Court in the case of Hari Ram (supra), which reads as under :- "7. The scope and applicability of the provision of Section 10(5) and 10(6) of the Act has been duly considered by Hon'ble the Apex Court in the case of Hari Ram (Supra) and held as under: Voluntary Surrender 31. The Vesting' in sub-section (3) of Section 10, in our view, means vesting of title absolutely and not possession though nothing stands in the way of a person voluntarily surrendering or delivering possession. The court in Maharaj Singh vs. State of UP and Others (1977) 1 SCC 155 , while interpreting Section 117(1) of U.P. Zamindari Abolition and Land Reform Act, 1950 held that Vesting' is a word of slippery import and has many meaning and the context controls the text and the purpose and scheme project the particular semantic shade or nuance of meaning. The court in Rejender Kumar vs. Kalyan (dead) by Lrs. (2000) 8 SCC 99 held as follows: "28.....We do find some contentious substance in the contextual facts, since vesting shall have to be a "vesting" certain. 'To vest, generally means to give a property in." (Per Brett, L.J. Coverdale v. Charlton. Stroud's Judicial Dictionary, 5th edn. Vol. VI.) Vesting in favour of the unborn person and in the contextual facts on the basis of a subsequent adoption after about 50 years without any authorization cannot however but be termed to be a contingent event. To "vest", cannot be termed to be an executor devise. Be it noted however, that "vested" does not necessarily and always mean "vest in possession" but includes "vest in interest" as well." 32. We are of the view that so far as the present case is concerned, the word "vesting" takes in every interest in the property including de jure possession and, not de facto but it is always open to a person to voluntarily surrender and deliver possession, under Section 10(3) of the Act. 33. We are of the view that so far as the present case is concerned, the word "vesting" takes in every interest in the property including de jure possession and, not de facto but it is always open to a person to voluntarily surrender and deliver possession, under Section 10(3) of the Act. 33. Before we examine sub-section (5) and sub-section (6) of Section 10, let us examine the meaning of sub-section (4) of Section 10 of the Act, which says that during the period commencing on the date of publication under sub-section (1), ending with the day specified in the declaration made under subsection (3), no person shall transfer by way of sale, mortgage, gift or otherwise, any excess vacant land, specified in the notification and any such transfer made in contravention of the Act shall be deemed to be null and void. Further, it also says that no person shall alter or cause to be altered the use of such excess vacant land. Therefore, from the date of publication of the notification under sub- section (1) and ending with the date specified in the declaration made in sub-section (3), there is no question of disturbing the possession of a person, the possession, therefore, continues to be with the holder of the land. Peaceful dispossession 34. Sub-section (5) of Section 10, for the first time, speaks of "possession" which says where any land is vested in the State Government under sub-section (3) of Section 10, the competent authority may, by notice in writing, order any person, who may be in possession of it to surrender or transfer possession to the State Government or to any other person, duly authorized by the State Government. 35. If de facto possession has already passed on to the State Government by the two deeming provisions under subsection (3) to Section 10, there is no necessity of using the expression "where any land is vested" under sub- section (5) to Section 10. Surrendering or transfer of possession under subsection (3) to Section 10 can be voluntary so that the person may get the compensation as provided under Section 11 of the Act early. Once there is no voluntary surrender or delivery of possession, necessarily the State Government has to issue notice in writing under subsection (5) to Section 10 to surrender or deliver possession. Once there is no voluntary surrender or delivery of possession, necessarily the State Government has to issue notice in writing under subsection (5) to Section 10 to surrender or deliver possession. Subsection (5) of Section 10 visualizes a situation of surrendering and delivering possession, peacefully while subsection (6) of Section 10 contemplates a situation of forceful dispossession. Forceful dispossession 36. The Act provides for forceful dispossession but only when a person refuses or fails to comply with an order under sub7 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 subsection (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. 37. Requirement of giving notice under subsections (5) and (6) of Section 10 is mandatory. Though the word 'may' has been used therein, the word 'may' in both the subsections 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 10 is that it might result the land holder being dispossessed without notice, therefore, the word 'may' has to be read as 'shall'. Effect of non-issue of notice under sub-section (5) or sub-section (6) of Section 10 is that it might result the land holder being dispossessed without notice, therefore, the word 'may' has to be read as 'shall'. The judgment of Hari Ram (supra) has further been relied upon by a Three Judge Bench of the Apex Court in the case of D.R. Somayajulu, Secretary, Diesel Loco Shed and South Eastern Railway House Building Cooperative Society Limited Visakhapatnam and others vs. Attili Appala Swamy and others- (2015) 2 SCC 390 and after considering the effect of the provisions of Repeal Act, restating the principle of the judgment of Hari Ram (supra) the Apex Court remitted the matter to the High Court for determination of the issue of actual physical possession on the date of commencement of the Repeal Act." and finally observed the impact of non compliance of mandatory provision of Sections 10(5) and 10(6) of the Principal Act, which reads as under:- "15. In the present case the notice under Section 10(5) of the Act was issued in the name of the holder of land, who was already died on the date of its issue and the notice was not issued in the name of persons who were in possession of the land on drawing the proceedings under Sections 10(5) of the Act. As discussed presuming service of the said notice on the dead person, if possession has taken in front of witnesses ex-parte, without drawing the proceedings of Section 10(6) of the Act, the said procedure is not known under the Principal Act, and as interpreted by the judgment of Apex Court in Hari Ram (supra). Thus, in my considered opinion, it is to be held that the actual physical possession of the land bearing Khasra No.87 and 228/3 area 8536.32 square meters of village Purwa, Settlement No. 162, Patwari Halka No. 28, Tehsil and District Jabalpur has not been taken, following the procedure prescribed, by the competent authority or by Naib Tehsildar (Nazul), on the date of commencement of the Repeal Act, therefore, these proceedings shall abate. Accordingly the questions as posed for discussion are answered in favour of the petitioners against respondents." 12. It is also pertinent to mention here that against the decision of this Court, the Supreme Court has dismissed the SLP No. 18278/2017 vide order dated 28.07.2017 in the case of Gayatri Devi (supra). Accordingly the questions as posed for discussion are answered in favour of the petitioners against respondents." 12. It is also pertinent to mention here that against the decision of this Court, the Supreme Court has dismissed the SLP No. 18278/2017 vide order dated 28.07.2017 in the case of Gayatri Devi (supra). Accordingly, it is clear that the mandatory requirement of the provision of Sections 10(5) and 10(6) of the Principal Act have not been followed in the present case, therefore, the proceeding initiated by the revenue authorities showing the possession of the land taken in the ceiling proceeding and the land vested in the State, cannot be said to be proper and the said proceeding cannot be held to be legal and in accordance with law. 13. This Court in Writ Petition No. 18017/2010 parties being Smt. Meera Bai and others Vs. The State of Madhya Pradesh and others, taking note of the law laid down by the Division Bench of this Court in the case of Ram Kumar Pathak and others Vs. State of M.P. and others (Writ Appeal No. 734/2008), has also considered the scope of Section 10(5) of the Principal Act, which reads as under: - "7. Section 10(5) of the Act provides as under:- "10. Acquisition of vacant land in excess of ceiling limit:- .. (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 authorized by the State Government in this behalf within thirty days of the service. Aforesaid provision specifically provides that a notice of minimum 30 days was required to be served on the holder, but as is apparent from the perusal of order-sheet that on 29.2.1992, the notice was issued and the date of delivery of possession was fixed as 3.3.1992. It appears that only 4 days notice was issued to the holder and the order-sheet was written for taking over the possession. It is also apparent that notice under Section 10(5) of the Act was not served upon the holder. When the notice was served by affixture also does not find place in the notice. It appears that only 4 days notice was issued to the holder and the order-sheet was written for taking over the possession. It is also apparent that notice under Section 10(5) of the Act was not served upon the holder. When the notice was served by affixture also does not find place in the notice. Even the person who had affixed the notice did not care to call two independent witnesses to witness affixure of notice at the house of the holder. The notice is also silent that on which date and at what time, the affixure was made. The possession was not taken from the holder. Though the Kotwar had signed the document but why two independent witnesses were not called. Though two names are appearing in the notice but without any particulars. Why the holder was not called for handing over the possession?, nothing is available on record. Apart from this, no proper Panchnama was drawn for taking possession of the land. These facts show that in fact possession of the land was not taken on 3.3.1992 as stated in the reply by the respondents. When possession of the land was not taken after issuance of due notice under Section 10(5) of the Act, in accordance with law, the proceedings shall be deemed to be pending as on the date when the Urban Land (Ceiling and Regulation) Repeal Act, 1999 came into force. When the proceedings were pending as on 22.3.1999, then in view of the Repeal Act of 1999, the proceedings shall be deemed to be abated. 8. Now the question remains whether on coming into force of Repeal Act, 1999 whether the proceedings were pending? In this case, no notice under Section 10(5) of the Act was served upon the appellants while it was the mandatory requirement of the law to serve this notice. Even for the sake of arguments, if it is assumed that the notice dated 29.2.1992 was issued to the appellants, even then 30 days' notice was the mandatory requirement of the law and until and unless a notice of 30 days could have been issued, the provision shall be deemed to be not complied with. Factually, neither notice under Section 10(5) was served upon the appellants nor any notice before handing over possession was given to the appellants. Factually, neither notice under Section 10(5) was served upon the appellants nor any notice before handing over possession was given to the appellants. Neither the notice under Section 10(5) of the Act nor the warrant of possession bears the signature of the appellants. Apart from this, the possession which was stated to be taken on 3.3.1992 was not in the presence of witnesses. Even if it is assumed that the two names which are appearing in the notice were witnesses, but no particulars of the witnesses are on record. No specific Panchnama was prepared on the spot that in the presence of these witnesses, the possession was taken. When, at what time and in whose presence, the possession was taken, letter of possession is silent. In view of non-compliance of mandatory provision as contained under Section 10(5) of the Act or the suspicious circumstances in taking possession, it is apparent that the factual possession on the spot was not taken. Apart from this, the appellants/petitioners from the very inception were claiming their possession on the land and had come forward with the plea that the appellants were dispossessed after interim order in this appeal. The fact which has been established is that no factual possession was taken from the appellants and they continued to be in possession till filing of the appeal which was filed on 24.6.2002 after coming into force of Repeal Act, 1999. In aforesaid circumstances, the appellants were in possession of the land, as on the date, on which the Repeal Act, 1999 came into force. In such circumstances, it can very well be said that the proceedings were pending on the date when the Repeal Act came into force. If the appellants remained in possession of the land and their possession was not disturbed, then they were entitled to retain the land and the proceedings shall be deemed to have been abated [See: Vinayak Kashinath Shilkar vs. Deputy Collector and Competent Authority & others (2012) 4 SCC 718 ] ." [Emphasis Supplied] 11. Recently, Hon'ble the Apex Court has affirmed the order passed by the Division Bench of this Court in the case of Anees Fatima (supra) vide order dated 10.12.2018 passed in Diary No.42231/2018. 12. Recently, Hon'ble the Apex Court has affirmed the order passed by the Division Bench of this Court in the case of Anees Fatima (supra) vide order dated 10.12.2018 passed in Diary No.42231/2018. 12. In view of the above, this Court has no hesitation to say that the proceedings initiated by the respondents/ State in respect of vesting the land in the State under the Act, 1976 are illegal and this Court has further no hesitation to say that the proper procedure was not followed by the State Authorities for taking possession of the land in question but on the contrary, the petitioner has successfully proved that the land is still in his possession. 13. Accordingly, the petition filed by the petitioner is allowed. The proceedings initiated under the Act, 1976 vide case No.647/A-90 (B-9)/1981-82 are hereby declared illegal and therefore, the same are quashed. The land bearing old Khasra No.95, new Khasra No.23 of area 0.49 hectare and new Khasra No.25 of area 0.94 hectare total area 1.43 hectare situated at Mauja Chaukital, Tahsil and District Jabalpur is declared to be a land not treated to be vested in the State Government by virtue of ceiling proceedings and accordingly, the respondents are directed to correct necessary entries in the revenue records as directed hereinabove within a period of two months from the date of submitting the certified copy of this order. 14. Before parting with the matter, it is appropriate to observe that since the basic proceedings initiated by the-then Ceiling Authorities under the Act, 1976 are already quashed hereinabove, therefore, all subsequent orders passed by the Revenue Authorities are also set aside. Parties shall bear their own costs.