TaxTMI 
TaxTMI 
TaxTMI 
2013 (3) TMI 596
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....for objection to the draft statement within thirty days. No objection was preferred by the respondent and it was found that he was holding excess land measuring 52,513.30 sq. meters and an order to that effect was passed by the competent authority under Section 8(4) of the Act, vide his proceeding dated 29.6.1981. 4. The competent authority later issued a notification dated 12.6.1982 under Section 10(1) of the Ceiling Act, which was published in the Government Gazette on 12.6.1982 giving the particulars of the vacant land held by the respondent. The competent authority then issued a notification dated 22.11.1997, which was published on the same date, stating the land shall be deemed to have been vested with the Government from 12.6.1982, free from all encumbrances. On 10.6.1999, the competent authority vide its letter dated 10.6.1999 informed the Bandobast Chakbandi Adhikar that the surplus land declared as per the Notification stood vested in the State Government. On 19.6.1999, the prescribed authority issued a notice under Section 10(5) of the Act directing the respondent to hand over possession of the land declared as surplus to a duly authorized person. Aggrieved by the same, ....
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....ile possession" and only in cases where hostile possession is set up by the owner in respect of the vacant land by growing crops, constructing buildings or other fixtures etc., the competent authority has to take recourse to the procedure laid down in those provisions. Referring to the provisions of the Repeal Act, learned senior counsel submitted that the wide language used therein envisages various possibilities such as taking over possession under Section 10(3), Section 10(5) or Section 10(6) of the Act. Learned senior counsel submitted that in cases where possession is seen having been taken over legally, statutorily and by way of presumption in law, on account of the publication of the notification and the deeming clause and legal fiction provided under Section 10(3) of the Act, the requirement of Section 3(1)(a) of the Repeal Act shall stand satisfied and the land so vested and possessed by the State Government shall remain intact in the ownership and possession of the State Government. Learned senior counsel also submitted that the procedure laid down under U.P. Urban Land Ceiling (Taking of Possession, Payment of Amount and Allied Matters) Directions, 1983 (for short 'Direc....
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....paration of draft statement as regards vacant land held in excess of ceiling limit. Draft statement prepared has to be served on the person concerned together with a notice under sub-section (3) of Section 8 calling for objections, if any, within 30 days to the service of notice. The competent authority, after considering the objections has to pass orders under sub-section (4) to Section 8, after considering the objections filed. The final statement has to be issued under Section 9 of the Act. 11. We are, in this case primarily concerned, with the scope of Section 10 of the Act, which reads as follow: 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....
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....ry. 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." 12. Before examining the scope of sub-section (3) to Section 10 as well as sub-sections (5) and (6) to Section 10, reference may be made to the Repeal Act 1999 and its Object and Reasons which are as follow: Statement of Object and Reasons: "1. The Urban Land (Ceiling and Regulation) Act, 1976 was passed when Proclamation of emergency was in operation with a laudable objective in mind. The said Act was passed pursuant to resolution passed by the State Legislature under clause (1) of Article 252. Unfortunately public opinion is nearly unanimous that the Act has failed to achieve what was expected of it. It has on the contrary pushed up land prices to unconscionable levels, practically brought the housing industry to a stop and provided co....
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.... government with respect to such land, then such land shall not be restored unless the amount paid, if any, has been refunded to the state government." 14. We notice even after the coming into force of the Repeal Act, the competent authority under the Act 33 of 1976 vide its letter dated 10th June, 1999 informed the Bandobast Chakbandi Adhikar that the surplus land declared as per the notification issued under the Act had vested in the State Government free from all encumbrances and, therefore, in the revenue records the name of State Government be entered and name of the respondent be mutated. The competent authority vide its notice dated 19.6.1999 issued under Section 10(5) of the Act directed the respondent to handover possession of the land declared as surplus to duly authorized persons on behalf of the Collector. 15. Before examining the impact of the Repeal Act on Act 33 of 1976, particularly, Section 3 of the Repeal Act on sub-section (3) to Section 10 of the Act, let us examine whether possession could be taken following the procedure laid down in sub-section (3) to Section 10 of the Act. Section 6 casts an obligation on every person holding vacant land in excess of ceili....
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....d to exist under a legal fiction are facts and not legal consequences which do not flow from the law as it stands. 18. James Lords Justice in Ex-parte, Walton, In re, Levy (1881) 17 Chance. D. 746 speaks on deeming fiction as: "When a statute enacts that something shall be deemed to have been done, which in fact and in truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to". 19. In Szoma v. Secretary of State for the Department of Work and Pensions (2006) 1 All E.R. 1 (at 25), court held, it would be quite wrong to carry this fiction beyond its originally intended purpose so as to deem a person in fact lawfully here not to be here at all. The intention of a deeming provision, in laying down a hypothesis is that the hypothesis shall be carried so far as necessary to achieve the legislative purpose but no further. (see also DEG Deutsche Institutions and another v. Kosby (2001) 3 All E.R. 878. 20. Let us test the meaning of the expression "deemed to have been acquired" and "deemed to h....
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....e till that time the land may be either in the ownership of the person who held that vacant land or to possess such land as owner or as a tenant or as mortgagee and so on as defined under Section 2(1) of the Act. The word "vested" has not been defined in the Act, so also the word "absolutely". What is vested absolutely is only the land which is deemed to have acquired and nothing more. The word "vest" has different meaning in different context; especially when we examine the meaning of vesting on the basis of a statutory hypothesis of a deeming provision which Lord Hoffmann in Customs and Excise Commissioners v. Zielinski Baker and Partners (2004) 2 All E.R. 141 (at 11) described as "heroic piece of deeming". 24. The word "vest" or "vesting" has different meaning. Legal Glossary, published by Official Language (Legislative) Commission 1970 Edition at Page 302: "Vest: 1. To give a person a legally fixed, immediate right or personal or future enjoyment of (an estate), to grant, endow, clothe with a particular authority, right of property, 2. To become legally vested; (T.P. A....
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....ossession, 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." 27. 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 l....
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....on to voluntarily surrender and deliver possession, under Section 10(3) of the Act. 30. 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 31. 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....
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....ub-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'. 35. Above reasoning is in consistence with the Directions 1983 which has been issued by the State Government in exercise of powers conferred under Section 35 of the Act. Directions clearly indicate that the procedure for taking possession of the vacant land in excess of the prescribed ceiling limit, which reads as under: The Uttar Pradesh Urban Land Ceiling (Taking of Possession payment of amount and Allied Matters) Directions, 1983 (Directions issued by the State Government under Section 35 of the Act, 1976): "In exercise of the powers under Section 35 of the Urban Land (Ceiling and Regulation) Act, 1976 (Act No.33 of 1976), the go....
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.... Date.................. Sri/Smt............................... T/o ........................................ In exercise of the powers vested un/s 10(5) of the Urban Land Ceiling and Regulation Act, 1976 (Act No.33 of 1976, you are hereby informed that vide Notification No....... dated ..... under section 10(1) published in Uttar Pradesh Gazette dated ...... following land has vested absolutely in the State free from all encumbrances as a consequence Notification u/s 10(3) published in Uttar Pradesh Gazette dated ....... Notification No......... dated .... With effect from .......... you are hereby ordered to surrender or deliver the possession of the land to the Collector of the District Authorised in this behalf under Notification No.324/II-27-U.C.77 dated February 9, 1977, published in the gazette, dated March 12, 1977, within thirty days from the date of receipt of this order otherwise action under sub-section (6) of Section 10 of the Act will follow. Description of Vacant Land Location Khasra number identification Area Remarks 1 2 3 4 Competent Authority ..................