Hon'ble Shashi Kant,J.
1. Heard Sri Anwar Hussain, learned counsel for the appellant, Sri Satish Chaturvedi, learned counsel for respondent no.1, Sri Syed Hasan Shaukat Abidi, learned counsel for respondents 2 and 3 and perused the record.
2. This is plaintiff's appeal under Section 96 of Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") arising from judgment and decree dated 18.10.2011 and 31.10.2011, respectively, passed by Sri K.P.Singh, Additional Sessions Judge, Court No.1, Moradabad, in Original Suit No.602 of 2008 whereby it has dismissed the suit.
3. The dispute relates to Gata No.200 total area 0.32 acre situate in Village Sonakpur, which was initially owned and possessed by Sri Zahid Hussain, Son of Haji Hamid Hussain, resident of Deptyganj, Moradabad. Out of 0.32 acres of land of Gata No.200, vide notification dated 30.01.1986, State of Uttar Pradesh acquired 0.05 acre (200 Sq.mts.) of land by initiating acquisition proceedings under Land Acquisition Act, 1894 (hereinafter referred to as "Act, 1894") and it was taken possession and handed over to Moradabad Development Authority (hereinafter referred to as "MDA"). After acquisition of land in favour of MDA, in Revenue record, Gata No.200 was divided in two different Gatas i.e. Gata No.200/1, area 0.1300 Hec. (1300 Sq.mts.) and Gata No.200/2 area 0.0200 hectare (200 Sq.mts.).
4. The land, which continued to be owned and possessed by Sri Zahid Hussain, was Gata No.200/1 and the land which was acquired by MDA was numbered as Gata No.200/2.
5. Competent Authority, Urban Ceiling initiated proceedings under Urban Lald (Ceiling & Regulation) Act, 1976 (hereinafter referred to as "Act 1976") for declaration of surplus land vide Ceiling Case No.437/5325 (State Vs. Zahid Hussain). Vide order dated 16.3.1988 it declared land being Gata No.200/1 area 1295.04 Sq.mts. vacant and surplus. Aggrieved by order dated 16.3.1988, Zahid Hussain filed an appeal being Revenue Appeal No.23 of 1988 in the Court of District Judge, Moradabad which was allowed vide judgment dated 06.01.1993 and order passed by Competent Authority (Ceiling) on 16.3.1988 was set aside. District Judge, Moradabad remanded the matter to Competent Authority (Ceiling) and the matter remained pending when in 1999, Urban Land (Ceiling & Regulation) Repeal Act, 1999 (hereinafter referred to as the "Repeal Act, 1999") came into force whereupon Competent Authority (Ceiling) vide order dated 15.6.2001 abated proceedings of ceiling case No.437/5325.
6. Plaintiff purchased land of Gata No.200/1 vide registered sale deed dated 22.6.1993 from Sri Zahid Hussain. Before execution of registered sale deed dated 22.6.1993, Sri Zahid Hussain had obtained permission under Section 37 from Competent Authority under Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as "Act, 1976") vide Competent Authority's letter dated 05.05.1993.
7. MDA though owned only 200 Sq.mts. of land in Gata No.200 i.e. 200/2 but published a news item in daily newspaper "Amar Ujala" on 31.8.2008 proposing auction of 600 Sq.mts. of land in Gata No.200.
8. Aggrieved by the aforesaid proceedings, plaintiff-appellant instituted aforesaid suit seeking declaration that auction proceedings held by MDA on 12.9.2008 in respect of 660.32 Sq.mts. of land of Gata No.200 (re-numbered as 200/1) in favour of defendant 2 are patently illegal. Further declaration was sought that plaintiff is in possession and ownership over land in dispute pursuant to registered sale deed dated 22.6.1993. A decree of prohibitory injunction was also sought restraining respondent 1 i.e. MDA from interfering with possession of land in dispute and not to deliver the same to defendants 2 and 3.
9. MDA contested the suit and stated that entire land of Gata No.200 was handed over to it after acquisition by State of U.P. An advertisement was made for auction of 600 Sq.mts. of land but after auction, on actual measurement, area of land was found 660.32 Sq.mts., and, consequently, sale deed was executed by MDA in favour of defendant 3 i.e. M/s Shri Sai Siddhi Developers on 20.3.2009 transferring by sale, 660.32 Sq.mts. land in the disputed Gata. MDA also denied title of plaintiff-appellant over land in dispute and said that sale deed relied by plaintiff is void ab initio. It also filed an additional written statement replying amended paragraphs of the plaint.
10. Trial Court formulated following 8 issues:
Þ1& D;k oknh fookfnr lEifRr dk ekfyd dkfot gS\ 2& D;k fookfnr 'ksM0 v 660-32 oxZ ehVj dh gn rd izfroknh la0 1 ds }kjk izfroknh la02 ds i{k esa dh x;h uhykeh dk;Zokgh fnukad 12&09&08 voS/k o 'kwU; gS\ 3& D;k okn ewY;kadu de gS\ 4& D;k U;k;'kqYd vi;kZIr gS\ 5& D;k okn esa vko';d i{kdkjksa ds vla;kstu dk nks"k O;kIr gS\ 6& D;k okn U;k;ky; ds {ks=kf/kdkj esa ugha gS\ 7& D;k oknh dks okn dkj.k izkIr gS\ 8& vuqrks"k\ß "1. Whether the plaintiff is the owner of the property having occupation thereon?
2. Whether the auction proceeding of the disputed shed 'A' measuring 660.32 square metre in favour of the defendant 1 by the defendant 2 is null and void?
3. The whether the suit is undervalued?
4. Whether the court fee paid is insufficient?
5. Whether the suit is suffering from the mis-joinder of parties?
6. With the suit is not within the court's jurisdiction?
7. Whether the plaintiff has cause of action for the suit?
8. Any relief?"
(English Translation by the Court)
11. While answering issues 1 and 2, Trial Court held that after passing order dated 16.3.1988, declaring disputed land surplus, possession of land was handed over by Naib Tehsildar (Ceiling) to Naib Tehsildar MDA on 31.7.1992. Against order dated 16.3.1988, Revenue Appeal No.23/88 was filed but factum of transfer of possession by Ceiling Authority to MDA was not brought to the notice of District Judge, Moradabad. Since possession was taken by MDA on 31.7.1992, therefore, it became owner of land in dispute and that being so, Zahid Hussain had no authority to transfer disputed land by executing sale deed dated 22.6.1993 in favour of plaintiff-appellant; in Revenue Appeal No.23 of 1988 MDA was not a party; no direction was issued by District Judge, Moradabad requiring MDA to hand over possession to Zahid Hussain and when ceiling proceedings were abated by Competent Authority (Ceiling) by order dated 15.6.2001; there also no order was passed for handing over possession of land to Zahid Hussain. It also held that mere setting aside of order dated 16.3.1988 and subsequent abatement of ceiling proceedings will not result in any benefit to the appellant. Permission granted by Competent Authority (Ceiling) on 05.05.1993 also will not result in any benefit to plaintiff-appellant since possession was already taken by MDA on 31.7.1992. It, therefore, answered issues 1 and 2 against plaintiff-appellant which has ultimately resulted in dismissal of suit.
12. The point for determination before us for deciding this appeal, are:
i. Whether Court below was justified in holding that transfer of possession by Ceiling Authority to MDA on 31.7.1992 would confer title upon MDA and subsequent proceedings i.e. appellate order dated 06.01.1993 passed by District Judge, Moradabad setting aside Ceiling Authority's order dated 16.3.1988 and abatement of ceiling proceedings will not result in divesting of title and possession of MDA over land in dispute?
ii. Whether order dated 06.01.1993 passed by District Judge Moradabad allowing Revenue Appeal No.23/88 will result in nullifying all ceiling proceedings including possession, if any, undertaken by ceiling authorities in respect of land in dispute including transfer to MDA?
iii. Whether MDA can claim any valid title over land in dispute only on the basis of fact that possession was taken by it on 31.7.1992 from Ceiling Authorities?
iv. Whether alleged possession taken on 31st July, 1992 is valid and confer any title over land in dispute upon MDA?
v. Whether disputed land was acquired by State under Act, 1894 and transferred to MDA?
13. Before answering aforesaid questions, we may examine certain facts which are evident from record.
14. There are two sets of proceedings, one under Act, 1976 and another under Act, 1894.
15. A notice under Section 6(2) of Act, 1976 was issued by Competent Authority whereupon statement under Section 6(1) was issued on 30.07.1977. Landowner objected and thereafter notice was discharged. Thereafter matter came for consideration before State Government and in exercise of power under Section 34 of Act, 1976, State Government remanded the matter vide order dated 01.7.1987 to Competent Authority with a direction that land vacated by U.P. Roadside Land Control Act be treated as vacant and thereafter fresh proceedings under Act, 1976 be held. Consequently, Competent Authority issued notice to Zahid Hussain who submitted an application dated 29.11.1987 seeking time to file objections. Ultimately Competent Authority passed order on 16.3.1988 holding that 5039.78 Sq.mts. of land is vacated by U.P. Roadside Land Control Act and leaving the same, remaining land is 1921.06 Sq.mts. and total comes to 6960.84 Sq.mts. After exempting 2000 Sq.mts. land, it declared 4960.84 Sq.mts. land 'surplus' and order under Section 8(4) of Act, 1976 was passed by Competent Authority. In respect of disputed plot no.200, surplus area declared was 1295.04 Sq.mts.
16. Against order dated 16.3.1988, Zahid Hussain preferred Revenue Appeal No.23 of 1988. This appeal was allowed by District Judge, Moradabad vide judgment dated 06.01.1993 and Competent Authority was directed to decide the matter afresh after taking into consideration amended master plan. In the meantime, Competent Authority issued notification dated 27.9.1988 under Section 10(1) of Act, 1976, vesting surplus land in the State and therein disputed land of Plot No.200, area 1295.04 Sq.mts., was mentioned.
17. Whether any subsequent proceedings were undertaken thereafter or not, no material has come on record in this regard. It is also not clear when possession was taken by Competent Authority from landowner under the provisions of Act, 1976. A copy of letter dated 31.7.1992 has been placed on record which is addressed to Competent Authority, Urban Land Ceiling, Moradabad and states that possession of land, detailed therein, is being handed over by Naib Tehsildar, Urban Ceiling Moradabad to Naib Tehsildar, MDA on 31.7.1992. Apparently this letter is only to show a "paper possession" and not "actual physical possession" of land, declared surplus by Competent Authority, vide order dated 16.3.1988. The appeal against order dated 16.3.1988 having been allowed vide judgment dated 06.01.1993 and matter was remanded to Competent Authority, consequence thereof, in our view, would be as if no order of Competent Authority declaring any land of Zahid Hussain 'surplus' remained in existence and if that be so, no question of any valid vesting of land in State or taking possession thereof would arise.
18. A final statements under Section 9 of Act, 1976 is found on the order of Competent Authority passed under Section 8(4) of Act, 1976 and if these proceedings have taken place in law, only then question of acquisition of vacant land in excess of ceiling limit under Section 10 would arise. When District Judge allowed appeal, set aside order dated 16.3.1988 passed under Section 8(4), and remanded the matter to Competent Authority to decide afresh, the order under Section 8(4) and all subsequent proceedings, if any, became a nullity disappeared. Legal consequence would be as if there existed no order declaring any part of land of Zahid Hussain in respect of plot No.200 'surplus' and, therefore, land continued not only to belong to Zahid Hussain but also would remain in law, in his possession.
19. The alleged transfer of possession by Naib Tehsildar, Urban Ceiling to Naib Tehsildar, MDA apparently a 'paper possession', since no document has been placed on record to show that Competent Authority ever took actual physical possession of land in dispute from landowners, either under Section 10(5) or 10(6) of Act, 1976 or otherwise and therefore such "paper possession" would have no legal consequence.
20. The kind of possession contemplated under Act, 1976 and also under Section 3 and 4 of Act, 1999 is actual possession and not a mere paper possession. In the context of Act, 1894, this question has been considered by the courts time and again and it will be useful to refer some of the authorities on the subject at this state.
21. The first authority on the subject is Balwant Narayan Bhagde Vs. M.D. Bhagwat and others, 1976 (1) SCC 700. It is a three Judges judgment. The majority view is the opinion expressed by Hon'ble Bhagwati, J. for himself and Hon'ble Gupta, J. while contrary view was expressed by Hon'ble Untwalia, J. His Lordship Untwalia, J. observed that taking possession means taking of possession on the spot. It is neither a possession on paper nor symbolical possession. The Act is silent on the point as to what is the mode of taking possession. Unless possession is taken by written agreement of 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 authority has taken possession on land. It may be in the form of declaration by beat of drum or otherwise or by hanging a written declaration on the spot. Presence of owner or occupant of land to effectuate taking of possession is not necessary. When possession has been taken, owner or occupant of land is dispossessed. Once possession has been taken land vests in Government.
22. The majority judgment delivered by Hon'ble Bhagwati, J. though in disagreement with Hon'ble Untwalia, J. but on the question of possession, we find a somewhat overlapping on the procedure discussed in two sets of judgments. Hon'ble Bhagwati, J., said that when State proceeds to take possession of land acquired, it must take actual possession of land since all interests on land are sought to be acquired by it. There can be no question of taking symbolical possession in the sense understood by judicial decisions under the Code of Civil Procedure (hereinafter referred to as the "CPC"), nor would possession merely on paper be enough. Court further said:
"What the Act contemplates as a necessary condition of vesting of the Land in the Government is the taking of actual possession of the land. How such possession may be taken would depend on the nature of the land. Such possession would have to be taken as the nature of the land admits of. There can be no hard and fast rule laying down what act would be sufficient to constitute taking of possession of land. We should not, therefore, be taken as laying down an absolute and inviolable rule that merely going on the 'pot and making a declaration by beat of drum or otherwise would be sufficient to constitute taking of possession of land in every case. But here, in our opinion, since the land was laying fallow and there was no crop on it at the material time, the act of the Tehsildar in going on the spot and inspecting the land for the purpose of determining what part was waste and arable and should, therefore, be taken possession of and determining its extent, was sufficient to constitute taking of possession. It appears that the appellant was not present when this was done by the Tehsildar, but the presence of the owner or the occupant of the land is not necessary to effectuate the taking of possession. It is also not strictly necessary as a matter of legal requirement that notice should be given to the owner or the occupant of the land that possession would be taken at a particular time, though it may be desirable where possible, to give such notice before possession is taken by the authorities, as that would eliminate the possibility of any fraudulent or collusive transaction of taking of mere paper possession, without the occupant or the owner ever coming to know of it." (emphasis added)
23. In General Manager, Telecommunication and another Vs. Dr. Madan Mohan Pradhan and others, 1995 Supp.(4) SCC 268 it was claimed on behalf of State that possession was taken on 12.04.1976 and handed over to Union of India. With regard to mode and manner of possession the Court said:
"It is common knowledge that possession would always be taken under a memo and handing over also would be under a memo. It is a recognized usual practice in all the acquisition proceedings." (emphasis added)
24. In State of Tamil Nadu and another Vs. Mahalakshmi Ammal and others, 1996(7) SCC 269 Court said:
"Possession of the acquired land would be taken only by way of a memorandum, Panchanama, which is a legally accepted norm. It would not be possible to take any physical possession. Therefore, subsequent continuation, if any, had by the erstwhile owner is only illegal or unlawful possession which does not bind the Government nor vested under Section 16 divested in the illegal occupant."
25. The question as to how physical possession of land is to be taken, was also considered in Balmokand Khatri Educational and Industrial Trust Vs. State of Punjab, 1996(4) SCC 212, wherein Court said in para 4 of the judgment, as under:
"4. It is seen that the entire gamut of the acquisition proceedings stood completed by 17-4-1976 by which date possession of the land had been taken. No doubt, Shri Parekh has contended that the appellant still retained their possession. It is now well-settled legal position that it is difficult to take physical possession of the land under compulsory acquisition. The normal mode of taking possession is drafting the panchnama in the presence of panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would tantamount only to illegal or unlawful possession".
(emphasis added)
26. The majority opinion of Balwant Narayan Bhagde (supra) was considered in Tamil Nadu Housing Board Vs. A. Viswam, 1996 (8) SCC 259 wherein also a dispute of actual possession was raised. Court, relying on memorandum and Panchnama, prepared by Land Acquisition Officer for taking possession of acquired land and also the letter written by respondent wherein he admitted title of respondent but sought allotment of an alternative site, held that there was no question of requesting for alternative site if according to respondents title still vested in him and had not vested in 'State' by taking possession. Paras 9 and 10 of the judgment, relevant for our purpose, is reproduced as under:
"9. It is settled law by series of judgement of this Court that one of the accepted modes of taking possession of the acquired land is recording of a memorandum or Panchanama by the LAO in the presence of witnesses signed by him/them and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. It is common knowledge that in some cases the owner/interested person may not co-operate in taking possession of the land.
10. It is seen that in a letter written by the respondent himself, admitting the title of the Board to the land in the said survey number, he sought for allotment of alternative site. In other words, unless possession is taken and he is divested of the title and the same is vested in the appellant, he cannot make request to the appellant for providing him alternative site. It is not his case that at that stage he was still continuing to have title to the land in dispute. The admission is inconsistent with and incongruous to his interest. He was also aware that award was made and the possession obviously should have been taken thereunder......." (emphasis added)
27. The next authority is Larsen and Toubro Ltd. Vs. State of Gujrat and others, 1998 (4) SCC 387. Therein Court referred to Panchnama prepared by Deputy Collector showing that possession was taken and found it sufficient to hold that possession of land in question in that case was taken as contemplated under Act, 1894.
28. In P.K. Kalburqi Vs. State of Karnataka, 2005(12) SCC 489, Court referred to the observations of Hon'ble Bhagwati, J. in Balwant Narayan Bhagde (supra) and said, when there is no crop or structure on the land only symbolic possession would be taken.
29. In Sita Ram Bhandar Society, New Delhi Vs. Lt. Governor, Government of N.C.T. Delhi and others, 2009(10) SCC 501, Court, after referring to earlier decisions, said, that while taking possession, symbolic and notional possession is not envisaged under the Act but the manner in which possession is taken, must, of necessity, depend upon the facts of each case. Where a large area of land with a large number of owners is subject matter of possession, Court said, that, it would be impossible for Collector or Revenue officials to enter each bigha or biswa and take possession thereof. Pragmatic approach has to be adopted by Court. It further said:
"...one of the methods of taking possession and handing it over to the beneficiary department is the recording of a Panchnama which can in itself constitute evidence of the fact that possession had been taken and the land had vested absolutely in the Government." (emphasis added)
30. Similarly in Brij Pal Bhargava and others Vs. State of U.P. and others, 2011(5) SCC 413, accepting possession, Court upheld the issue of possession on the basis of possession receipts and said that mere fact that in Revenue record there is no mutation or that erstwhile owner actually is still occupying acquired land, would make no difference.
31. After having a retrospect of earlier authorities, in Banda Development Authority, Bana Vs. Moti Lal Agarwal and others, 2011(5) SCC 394, Court crystallized certain principles to determine when possession taken would be held to be actual physical possession by authorities and it reads as under:
"37. The principles which can be culled out from the above noted judgments are:
(i) No hard and fast rule can be laid down as to what act would constitute taking of possession of the acquired land.
(ii) If the acquired land is vacant, the act of the concerned State authority to go to the spot and prepare a panchnama will ordinarily be treated as sufficient to constitute taking of possession.
(iii) If crop is standing on the acquired land or building/structure exists, mere going on the spot by the concerned authority will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the authority concerned will have to give notice to the occupier of the building/structure or the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchnama. Of course, refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken.
(iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures on such document.
(v) If beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3-A) and substantial portion of the acquired land has been utilised in furtherance of the particular public purpose, then the Court may reasonably presume that possession of the acquired land has been taken." (emphasis added)
32. In Jagdish and others Vs. State of U.P. and others, 2008(5) ADJ 5, a Division Bench of this Court, having one of us (Hon'ble Sudhir Agarwal, J.) a member, referred to an authority letter of Special Land Acquisition Officer containing endorsement of Executive Engineer taking possession. It was held that possession was taken by revenue authorities.
33. The aforesaid authorities have been referred to and followed by this Court in Writ Petition No. 40947 of 2004 (Punia @ Pania and another Vs. State of U.P. and others) and Writ Petition No. 33045 of 2009 (Rashid Vs. State of U.P. and Others).
34. In the present case, it is evident from record that after giving notice under Section 10(1) of Act, 1976 on 27.9.1988 by Competent Authority, no other notification was ever published under Section 10(3) of Act, 1976 and therefore, even deeming physical possession of land in question and vesting of land in State Government does not come into picture.
35. In the written statement filed by MDA, it has not stated anything about taking possession of land in dispute except of making reference to possession letter dated 31.7.1992 and on that basis only it has stated that possession of land of Gata No.200 area 1295.04 Sq.mts. was taken by it on 31.7.1992. As we have already observed that in absence of anything to show that possession of aforesaid land was ever taken by Collector or Competent Authority under Act, 1976, question of transfer of possession by it to MDA does not arise and mere execution of a document noticing such transfer is nothing but a paper transaction, which cannot be treated to be an evidence of possession of MDA over the said land. This document is not even a memo of possession.
36. The second aspect relates to acquisition of certain part of land of plot no.200 under Act, 1894. It is not in dispute that notification under Section 4 of Act, 1894 was published in Gazette notification on 28.01.1986 mentioning amongst other, acquisition of land of plot no.200/2 area 0.05 acre. Samething is mentioned in declaration under Section 6 published in Gazette Notification dated 30.01.1986. The possession of this acquired land alongwith land of other landowners was taken by Collector on 28.11.1987 through Jagdish Saran, Naib Tehsildar in the office of Special Land Acquisition Officer, Moradabad. It was transferred to representatives of MDA. Court below has totally relied on paper no.133-C to record a finding that actual physical possession of plot no.200 area 1295.20 Sq.m. is a subject matter of ceiling proceedings under Act, 1976 and was given to MDA and since it has never been taken back from MDA, repeal of ceiling proceedings after enactment of Repeal Act, 1999 vide order dated 15.06.2001 would have no consequence. This is totally founded on the presumption that at any point of time actual physical possession of the said land was taken by Competent Authority though there is no material on record to support this assumption. We have already discussed it above. That being so, transfer of actual physical possession of the aforesaid land to MDA does not arise. Moreso except of intimation letter, not even a memo of possession has been placed on record. Court below thus failed to examine that possession contemplated under Section 10(5) of Act, 1976 is 'actual physical possession' and not a mere 'paper transaction'.
37. In the present case, even this paper transaction with respect to taking of possession by ceiling authorities under Act, 1976 is not proved and in absence thereof there does not arise any question of transferring possession of said land to MDA. Paper no.133C is a report submitted by Naib Tehsildar of Ceiling Authority informing Competent Authority (Ceiling) that he has transferred possession of the aforesaid land to Naib Tehsildar MDA. This by itself is not a document of possession. It is not a memo of possession transferring possession to MDA. Thus the Court below has misread and misconstrued this document. When possession of aforesaid land was not with ceiling authorities, question of transfer of it by paper transaction to MDA does not arise and has no legal consequence in law.
38. That being so, after Repeal Act, 1999, when proceedings were closed by Competent Authority (Urban Ceiling) under Act, 1976, vide order dated 15.06.2001, the effect is that land of Zahid Hussain comprising plot no.200 area 1295.04 Sq.mts. remained his property and in his possession having never been divested or taken away by anyone. The factum that proceedings for possession under Section 10(5) were never undertaken has also been noted by Competent Authority in the order dated 15.06.2001 which will be evident from the following :
^^uxj Hkwfe ¼vf/kdre lhek ,oa fofu;eu½ fujlu vf/kfu;e 1999 dh /kkjk&4 lifBr /kkjk&3&1¼d½ ds vUrxZr Þfdlh U;k;ky; vFkok izkf/kdkjh ds le{k fopkjk/khu ,sls izdj.k ftuesa /kkjk&10¼3½ ds mijkUr /kkjk&10¼5½ ds vUrxZr dCts dh dk;Zokgh ugha gq;h gSAß fujflr fd;s tkus ;ksX; gS] pwafd iz'uxr okn esa /kkjk&8¼4½ dk iqu% vkns'k ugha gqvk gSA vr% ;g okn fujflr fd;s ;ksX; gSA mDr vk/kkj ij i=koyh fu{ksi dh tkrh gSAß "Under Section 4 read with Section 3-1(A) of the Urban Land (Ceiling and Regulation) Repeal Act, 1999, the cases pending before any court or authority wherein the proceeding for possession has not been initiated u/s 10(5) consequent to the one u/s 10(3), deserve to be dismissed because no order has been passed invoking Section 8(4). Hence, this suit is liable to be dismissed. On the aforesaid ground, the file is consigned to records." (English Translation by Court)
39. We find it strange that even this aspect has escaped attention of Court below and it has failed to consider material question whether at any point of time actual physical possession of land comprising Gata No.200 area 1295.04 Sq.mts. was ever taken by Ceiling Authorities. As we have held that there is material to show that it was ever taken, on the contrary, order dated 15.06.2001 passed by Competent Authority (Urban Ceiling) shows that no proceedings under Section 10(5) was ever initiated, it becomes clear that alleged transfer of possession mentioned in the letter sent by Naib Tehsildar, Urban Ceiling Competent Authority would have no legal consequence so far as the aforesaid land is concerned.
40. We may recollect at this stage that State Government and its authorities had some impression that a mere notification under Section 10(3) would amount to vesting of land in the State and thereafter further proceedings of possession under Section 10(5) or 10(6) would have no importance and not necessary. Mere issue of notification under Section 10(3) of Act, 1976 will result in vesting of land without any encumbrance and it would would amount to 'deemed possession' by respondents. The mere fact that "actual physical possession" was not taken or there is no document or material to show that "actual physical possession" was ever taken, will make no difference. This assumption of "deemed possession" based on Section 10(3) has been negated when a similar issue was raised in State of U.P. Vs. Hari Ram 2013 (4) SCC 280. Therein Hari Ram filed a statement on 28.09.1976 giving details of vacant land, he was holding in excess of ceiling limit, as provided under Act, 1976 as provided under Section 6. Competent Authority surveyed the land and a draft statement under Section 8(3) was served upon Hari Ram on 13.05.1981. Competent Authority then passed order on 29.06.1981 under Section 8(4) of Act, 1976 declaring 52,513.30 sq. meters land surplus. Notification under Section 10(1) was published on 12.06.1982 and then notification under Section 10(3) vesting land in 'State' was issued on 22.11.1997 declaring that land shall be deemed to have vested in 'State' with effect from 12.06.1982. Competent Authority vide letter dated 10.06.1999 informed Settlement Officer (Consolidation) that surplus land declared by notification dated 22.11.1997 stood vested in Government. On 19.06.1999 Prescribed Authority issued notice under Section 10(5) directing Hari Ram to handover possession of land declared surplus to authorized person. Hari Ram filed appeal before District Judge, Varanasi being Appeal No. 29 of 1999 under Section 33 of Act, 1976 contending that before passing order under Section 8(4) no notice under Section 8(3) was served upon him. Appeal was allowed by District Judge, Varanasi vide judgment dated 14.12.1999 and order dated 29.06.1981 passed by Competent Authority under Section 8(4) was set aside. Matter was taken to this Court by State of U.P. in Writ Petition No. 47369 of 2000 which was dismissed and thereafter it was taken in appeal to Supreme Court.
41. Argument advanced on behalf of State of U.P. before Supreme Court was that sub-section (3) of Section 10 does not envisage taking physical and "de facto possession" of surplus land. The expression "deemed acquisition" and "deemed vesting" would cover not only "de jure possession" but also "de facto possession". It was sought to argue that this deeming fiction is sufficient compliance of requirement of possession under Section 3(1)(a) of Repeal Act, 1999 and would dispel otherwise claim set up by land owner. It is in this backdrop matter was examined by a Bench of Two Judges of Supreme Court. It observed that expression "deemed to have been acquired" used as a deeming fiction under sub-section (3) of Section 10 can only mean "acquisition of title" or "acquisition of interest" because till that time land may be either in ownership of the person who held that vacant land or possess such land as owner or as tenant or as mortgagee and so on as defined under Section 2(1) of Act, 1976. Word 'vested' has not been defined in Act, 1976 so also the word 'absolutely'. What is "vested absolutely" is only the land which is deemed to have been acquired and nothing more. Vest/vested, may or may not include "transfer of possession" meaning of which depends on the context in which it has been placed and interpretation of various other related provisions. In para 29 and 30 of judgment, Court said:
"29. What is deemed "vesting absolutely" is that "what is deemed to have acquired". In our view, there must be express words of utmost clarity to persuade a court to hold that the legislature intended to divest possession also, since the owners or holders of the vacant land is pitted against a statutory hypothesis. Possession, there is an adage "nine points of law" In Beedall v. Maitland (1881) 17 Ch. D. p.183 Sir Edward Fry, while speaking of a Statute which makes a forcible entry an indictable offence, stated as follows:
"this statute creates one of the great differences which exist in our law between the being in possession and the being out of possession of land, and which gave rise to the old saying that possession is nine points of the law. The effect of the statute is this, that when a man is in possession, he may use force to keep out a trespasser; but if a trespasser has gained possession, the rightful owner cannot use force to put him out, but must appeal to the law for assistance."
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 hands of 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."
(emphasis added)
42. Court then restricted meaning of word "vesting" under Section 10(3) by holding that "vesting" means "vesting of title absolutely" and not "possession" though nothing stands in the way of a person voluntarily surrendering or delivering possession. For the purpose of Section 10(3) of Act, 1976, Court said, that the word "vested" 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 Act, 1976. Court then examined Section 10(5) stating that it talks of peaceful possession and 10(6) talks of forceful possession. Discussion in this regard, in paras 34, 35, 36 and 37, read as under:
"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 sub-section (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 sub-section (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 sub-section (5) to Section 10 to surrender or deliver possession. Subsection (5) of Section 10 visualizes a situation of surrendering and delivering possession, peacefully while sub-section (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. 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.
37. 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'." (emphasis added)
43. Court also refers to the procedure prescribed in U.P. Urban Land Ceiling (Taking of Possession payment of amount and Allied Matters) Directions, 1983 (Directions issued by the State Government under Section 35 of Act, 1976) and said in para 39, as under:
"39. Above-mentioned directives make it clear that sub-section (3) takes in only de jure possession and not de facto possession, therefore, if the land owner is not surrendering possession voluntarily under sub-section (3) of Section 10, or surrendering or delivering possession after notice, under Section 10(5) or dispossession by use of force, it cannot be said that the State Government has taken possession of the vacant land." (emphasis added)
44. Then coming to Repeal Act, 1999 Court held that mere vesting of land under Section 10(3) would not confer any right upon State Government to have "de facto possession" of vacant land unless there has been a voluntary surrender of vacant land before 18.03.1999. It further says that, "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." Having said so, Court held, that, since State Government failed to establish any of the above situation, hence Hari Ram was entitled for benefit under Section 3 of Repeal Act, 1999.
45. Thus, theory of "deemed possession", as argued before this Court by respondents' counsel having already been repelled and rejected by Supreme Court, cannot help respondents in any manner unless it can be shown that actual physical possession of land in dispute was taken by respondents at any point of time before enforcement of Repeal Act, 1999 on 18.03.1999 in the State of U.P.
46. From the aforesaid law also it is clear that neither in law nor otherwise it can be said that till enactment of Repeal Act, 1999 possession of land comprising Gata No.200 area 1295.04 Sq.mts. was ever taken away from its owner or transferee of such owner i.e. appellant hence any alleged proceedings in respect of aforesaid land by MDA is a nullity. MDA had no right or title over aforesaid land.
47. We also find it evident that MDA actually got only 0.05 acres of land of Gata No.200 which was shown as Gata No.200/2 in the acquisition proceedings conducted under Act, 1894 and only that part of land was available to MDA in its ownership and possession. In the garb of possession of that land MDA extend its possession over other part of land of Gata No.200. It was wholly illegal.
48. We have also no hesitation in holding that judgment dated 06.01.1993 passed by District Judge allowing appeal of Zahid Hussain has consequence of making order dated 16.3.1988 passed by Competent Authority under Section 8(4) non-est. Since no fresh order was passed by Competent Authority till enactment of Repeal Act, 1999, it cannot be said that any land of Zahid Hussain was ever declared surplus under Act, 1976 hence taking possession of any part of land of Zahid Hussain by Collector or ceiling authority under Act, 1976 does not arise and would be of no legal consequence. The otherwise findings of Court below, therefore, in the judgment in question cannot be sustained and are reversed.
49. All the five questions, therefore, are answered in favour of appellant and against respondents.
50. In the result, appeal is allowed with costs. The judgment and decree passed by Court below is hereby set aside. The suit of appellant is decreed and alleged auction held by MDA in respect of disputed land is declared a nullity. Respondents are restrained from interfering in appellant's possession over land in dispute.