Hon'ble Rajan Roy,J.
1. The competent authority, by its order dated 30.8.1979 declared 9468.21 sq. meter as surplus land under the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the Act). Pursuant to the said order, a notice under Section 10(5) of the Act was issued to the petitioner on 30.1.1988 directing him to handover the possession on or before 30 days from the date of notice failing which forceful possession would be taken by them under section 10(6) of the Act. The petitioner contends that no physical possession was taken by the respondents and, in the meanwhile, Urban Land (Ceiling and Regulation) Repeal Act, 1999 came into existence which was adopted by the State of Uttar Pradesh on 18.03.1999. The petitioner contends that in view of section 4 of the repeal Act, all proceedings stood abated where the possession had not been taken over by the State, and consequentially, prayed that a mandamus should be issued to ensure that the surplus land remained with the petitioner.
2. The respondents filed a counter affidavit. Paragraph no.4 of the C.A. is relevant for the purpose of the case and is extracted here under:-
"4. Thereafter a notice under Section 10(5) of the Act was issued to the petitioner on 30.1.88. When the petitioner failed to hand over the possession of the declared surplus land himself with the prescribed period, then the Tahsil staff was directed to take the possession over the declared surplus land on behalf of District Magistrate under the provisions of section 10(6) of the Act. But after receiving the application under section 20 of the Act for exemption and seeing the land being agricultural land, after deleting the name of the petitioner the name of 'Urban Ceiling' was recorded in the revenue record, in accordance with the provisions, terms and conditions contained in the G.O. no.3V.I.P. Year 1988 and G.O. No.760 dated 2.4.1994, but the proceedings for taking possession over the land in question was stayed and in the meantime Repeal Act, 1999 came into existence. In view of the aforesaid facts, after publication of gazette notification under section 10(3) of the Act, the declared surplus land has been vested in the State Government free from all encumbrances and the land shall be legally treated as land obtained in possession and vested in the State Govt."
3. From perusal of the aforesaid assertion, the stand of the State Government is clear and explicit, namely, that physical possession of the surplus land could not be taken under Section 10(6) of the Act in view of the Repeal Act 1999 coming into force. The respondents however, submits that since the surplus land vested in the State Government pursuant to the publication of gazette notification under section 10(3) of the Act, which was free from all encumbrances, the possession of the land was deemed to have been taken by the State Government.
4. Having heard the learned counsel for the parties, we find that the stand of the State Government is patently erroneous. This issue has already been settled by the Supreme Court in the case of State of Uttar Pradesh Vs. Hari Ram (2013) 4 S.C.C. 280 wherein the Supreme Court held, that vesting of the land under subsection (3) of Section 10 means vesting of the title only and not possession. For facility, paragraphs 17, 18 and 31 are extracted hereunder:-
"17. Sub-section (2) of Section 10 states that after considering the claims of persons interested in the vacant land, the competent authority has to determine the nature and extent of such claims and pass such orders as it might deem fit. Sub-section (3) of Section 10 states that after the publication of the notification under sub-section (1), the competent authority has to declare that the excess land referred to in the Notification published under sub-section (1) of Section 10 shall, with effect from such date, as might be prescribed in the declaration, be deemed to have been acquired by the State Government. On publication of a declaration to that effect such land shall be deemed to have been vested absolutely in the State Government, free from all encumbrances, with effect from the date so specified.
Legal Fiction
18. The Legislature is competent to create a legal fiction, for the purpose of assuming existence of a fact which does not really exist. Sub-section (3) of Section 10 contained two deeming provisions such as "deemed to have been acquired" and "deemed to have been vested absolutely". Let us first examine the legal consequences of a ''deeming provision'. In interpreting the provision creating a legal fiction, the Court is to ascertain for what purpose the fiction is created and after ascertaining this, the Court is to assume all those facts and consequences which are incidental or inevitable corollaries to the giving effect to the fiction. This Court in Delhi Cloth and General Mills Company Limited v. State of Rajasthan (1996) 2 SCC 449 held that what can be deemed to exist under a legal fiction are facts and not legal consequences which do not flow from the law as it stands.
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 v. 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 v. Kalyan 2008 (8) SCC 99 held as follows: (SCC P.114 para 28) "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 executory devise. Be it noted however, that 'vested' does not necessarily and always mean 'vest in possession' but includes 'vest in interest' as well."
5. The Supreme Court further went on to hold that the it is mandatory for the State to issue a notice under sub-clause 5 of Section 10 directing the petitioner/land holder to deliver peaceful possession to the State, failing which it was mandatory for the Respondents to take forceful possession under section 10(6) of the Act. The Supreme Court in paragraphs 36 and 37 held as under:-
"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) 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. 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 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 the land holder being dispossessed without notice, therefore, the word ''may' has to be read as ''shall'.
6. The Supreme Court after dealing with the effect of the Repeal Act held that mere vesting of the land under sub clause (3) of Section 10 would not confer a right on the State Government to have de facto possession of vacant land unless there has been a voluntarily surrender of the vacant land before 18.3.1999 or forceful possession of the land under section 10(4) of the Act. The relevant paragraph no.42 is extracted here under:-
"42. The mere vesting of the land under sub-section (3) of Section 10 would not confer any right on the State Government to have de facto possession of the vacant land unless there has been a voluntary surrender of vacant land before 18.3.1999. State has to establish that there has been a voluntary surrender of vacant land or surrender and delivery of peaceful possession under sub-section (5) of Section 10 or forceful dispossession under sub-section (6) of Section 10. On failure to establish any of those situations, the land owner or holder can claim the benefit of Section 3 of the Repeal Act. The State Government in this appeal could not establish any of those situations and hence the High Court is right in holding that the respondent is entitled to get the benefit of Section 3 of the Repeal Act."
7. In the light of the aforesaid and on perusal of the paragraph 4 of the counter affidavit of the State, it is clear, that the State Government could not establish that they have taken possession either under section 10(5) of the Act or under Section 10(6) of the Act. The contention that deemed possession of the land has been taken on the basis of the vesting of land under Section 10(3) is patently erroneous and cannot be accepted.
8. In view of the aforesaid, the writ petition is allowed and a writ of mandamus is issued holding that the proceedings against the petitioner under the Urban Land (Ceiling and Regulation) Act, 1976 have abated and the petitioner is entitled to the benefit of Section 4 of the Repeal Act.
Order Date :- 13.3.2014 Dev/-
(Rajan Roy,J.) (Tarun Agarwala,J.)