TaxTMI 
TaxTMI 
2025 (2) TMI 1231
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....ties of all courts is to take care that the act of the Court does no injury to any of the Suitors, and when the expression 'the act of the Court' is used, it does not mean merely the act of the Primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole, from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case." [Privy Council in Alexander Rodger Charles Carnie v. Comproir D'Escompte De Paris, 1871 Law Reports 3 Privy Council 475] 3. These appeals arise from a common judgment and order passed by the High Court for the State of Telangana and Hyderabad dated 03.01.2022 in Writ Appeal No. 665 of 2022 and Writ Appeal No. 670 of 2022 respectively by which both the writ appeals filed by the State came to be allowed thereby setting aside the judgment and order passed by the learned Single Judge of the High Court allowing the writ petitions filed by the appellants-herein. 4. The facts giving rise to these appeals may be summarized as under:- i) M/S A.P. Electrical Equipment Corporation (Now known as 'ECE INDUSTRIES LIMITED'), hereinafter the appellant is a company engaged in ....
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.... also filed a declaration under Section 21(1) of the ULC Act and the same declaration was taken up as for accommodation of weaker sections to an extent of 56,730.57 square meters out of the aforesaid land. Accordingly, permission was accorded by the Special Officer and Competent Authority under Section 21(1) of the ULC Act on 04.02.2001. While granting the permission, a condition was imposed on the appellant that the construction of the dwelling units shall be for the weaker sections of the society and the same should be completed within 5 years. It was alleged that the appellant had failed to construct the dwelling units within the specified period thereby violating the condition while granting permission under Section 21(1) of the ULC Act. vi) In respect of the land in Survey Nos. 74, 75 and 76 respectively, the Government had issued G.O.Ms No. 303 dated 07.04.1990 withdrawing the exemption granted earlier under G.O.Ms. No. 1729. vii) The stance of the Respondents is that the failure on the part of the appellant to utilize the 48,859.50 sq. m. portion in the prescribed manner led to the withdrawal of the exemption for that land, as affected by GO Ms. No. 303. On....
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....vacant land within thirty days. Further, according to the Respondents since the appellant's factory was closed due to lockout on 05.01.2008 the said notice was affixed on the main door of the factory premises on 08.01.2008. The operative portion of the notice is reproduced herein below:- "Whereas the lands in sy.Nos. 75/p, 75/p, 76/p to an extent ofGBP 46538.43 Sq/Mtrs. Fatehnagar vg., Balanagar Mandal, Ranga Reddy District, Marripalen vg. Visakhapatnam District in Sy. No. 59/3, 8437.48 Sq. Mtrs. (B Category) equivalent to 12,656.22 Sq. Mtrs. (C- Category) and which are in your possession are deemed to have vested absolutely in the State Government free from all encumbrance with effect from the 12.07.2007 under Subsection (3) of Section 10 of the Urban land (Ceiling & Regulation) Act, 1976 (Central Act 33 of 1976) vide Notification No. G 1/10571/76, published at pages 1 of part-II Extraordinary of the Andhra Pradesh Gazette No. 288 dated 3.10.2007. Now, therefore, in exercise of the powers conferred by sub-section (5) of section 10 of the Urban Land (Ceiling and Regulation) Act, 1976 (Central Act, 33 of 1976), I hereby order you to surrender/deliver possession of the said ....
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....ban Land Ceiling, Hyderabad present at site at Rangareddy District, Balanagar Mandai, Fathonagm: village limits sy.nos. 74/8, 75/8and 76/f3. There the Deputy Tahsildar over the said survey nos. land holding the ownership rights their land under Urban land ceiling act 1976 (46538.435 mtrs.) is identified as excess land vide Special Officer, Urban Land Ceiling Hyderabad orders No.F1/G1/10571/71/76 dated : 5.2.08 through the said land owners are excess land owners as confirmed said. Such excess land ext.46538.42 sq.mtrs. handover to government, the said ceiling act sec.1 0(5) the file no.F1/G1/10571/76/76 dated : 5-1-08 through to the land owners issued the notice. But according to that notice the said land though the stipulated is completed, the said excess land not handed over to the government Hence in the said ceiling act sec.1 0(6) tl1e said excess land to take possession by the government the Deputy Tahsildar permitting to the Inquiry Officer file no.F1/G1/10571/76 dated : 9-2-08 through the Special Officer issued the orders. Hence the inquiry officer according to the orders, today i.e. on 8-2-08 in the said survey nos. 46538.43 sq.mts. excess land according to sub division sket....
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....her Courts, it is clear that the official respondents after issuing notices under Section 10(1) and 10(3) have to issue notice under Section 10(5) directing the party to surrender the possession of the land, within a period of thirty days, and if voluntary possession of the same is not given, then the official respondents are obligated to issue notice under Section 10(6) to the petitioner and then take possession. The above judgments also make it abundantly clear that mere issuance of the notice under Section 10(3) does not automatically entitle the official respondents to take possession of the notified lands, but the authorities have to necessarily issue notice under Section 10(5) to the land owner or any other interested person. The Courts have also held that the taking over of the possession has to be actual physical possession and not mere de jure possession. Having regard to the above laid proposition of law, the question now before this Court is to see as to whether the notifications issued under Section 10(5) and 10(6) by the authorities and the panchnama stand to the legal scrutiny of this Court? 31. The documents filed, more particularly, the notice issued under ....
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....take over possession of the surplus land and hand it over to the MRO, concerned. The Enquiry Officer of this office took over possession of the surplus land on 8-2-2008 to an extent of 46538.43 sq.mtrs. in Sy. Nos. 74/p, 75/p and 76/p, in Fathenagar Village, Balanagar Mandal and Special Officer, ULC, Visakhapatnam accordingly took over possession of the surplus land to an extent of 8437.48 sq. mtrs. in Sy. No. 59/3, Marripalem village, Visakhapatnam on 12-3-2008." (Emphasis Added) 34. Even if the above averments made in the counter are taken to be true and correct, the very admission on the part of the official respondents that the notice was served on 08.01.2008 and Section 10(6) notice is issued on 05.02.2008 confirms that the mandatory period of 30 days between Sections 10(5) and 10(6) notices is not met and the same has to be held void, illegal and bad. Besides, when pointed out by this Court about the discrepancies with regard to the dates mentioned in the 10(6) notice and also the nonservice of the notice under Section 10(5) to the petitioner in-person, the learned Special Government Pleader tried to brush out the same as some clerical errors and argued that the s....
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....were present at the site and the panchanama was prepared in their presence. Admittedly, there is no signature of the land owner on the alleged panchanama dated 08.02.2008 or the site map annexed thereto. Even the description of the panchas or their addresses or even their temporary addresses are not shown therein. In the Absence of the signatures of the land owner on the panchanama, the panchanama and the site map will have to be considered as having been prepared behind the back of the petitioner and in the office of the authorities. The documents filed by the petitioner establish beyond any doubt that the factory is still running, number of apartments are constructed in part of the land and that the physical possession has not been taken over by the Government, as contended, but the same is still with the petitioner Company. No affidavit of any of the panchas has been filed to show that the authorities have physically gone to the subject land and taken over the possession in the presence of the owner. The entire exercise of affixing signatures and taking over the possession of the land appears to have been done sitting in the office of the authorities and only on paper. ....
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...., the impugned order passed by first respondent in directing the Special Officer and Competent Authority to take possession from the first petitioner though the petitioners 2 and 3 are in possession of the subject land is arbitrary and illegal, particularly when the 1976 Act has no application by virtue of Repeal Act, 1999, which was adopted by the State of Andhra Pradesh with effect from 27.03.2008 i.e. much prior to issuance of the impugned G.O. In view of the above, I am of the opinion that the impugned G.O. is liable to be set aside and accordingly set aside. The writ petition is accordingly allowed. No order as to costs." (Emphasis supplied) 11. Thus, what is discernible from the judgment rendered by the learned Single Judge referred to above is as under:- i. Under Sections 10(5) and 10(6) of the Act, 1976 the State is required to take over physical possession of vacant land in a cogent and convincing manner. As per the decisions of this Court in State of Uttar Pradesh v. Hari Ram, (2013) 4 SCC 280, and Gajanan Kamlya Patil v. Additional Collector and Competent Authority (ULC) and Ors., (2014) 12 SCC 523 respectively, unless actual physical possessio....
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.... appeals i.e. Writ Appeal No. 665 of 2022 and Writ Appeal No. 670 of 2022 respectively. 13. The Division Bench of the High Court allowed both the appeals filed by the State and thereby set aside the judgment and order passed by the learned Single Judge allowing the two writ petitions filed by the appellant herein. The Division Bench held as under:- "17.2. Claim of the appellants that notice under Section 10(5) was issued on 05.01.2008 was denied by the respondent. 05.01.2008 was a Saturday. It was the duty of the appellants to establish that 05.01.2008 was a working day and that notice dated 05.01.2008 was despatched from the office on a working day. It is also the duty of the competent authority to establish the exact date of service of notice under Section 10(5) and service on the noticee were conspicuously absent in the counter affidavit. Appellants merely stated that notice under Section 10(5) was issued on 05.01.2008. Since the respondent was under lockout, the notice was affixed on the main door on 08.01.2008. In the absence of dispatch of notice by registered post with acknowledgement due, the service would be deemed to be in violation in terms of Rule 5 of the U....
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.... stand in the name of the respondent in respect of the subject land. Therefore, the theory of possession put forth by the appellants is contrary to the record. 18. Learned Single Judge after narrating the relevant facts and after adverting to the submissions made by learned counsel for the parties had examined various provisions of the ULC Act, more particularly Sections 10(1), 10(3), 10(5) and 10(6) of the ULC Act as well as the Repeal Act which was adopted by the Government of undivided Andhra Pradesh on 27.03.2008 vide G.O.Ms.No.603 dated 22.04.2008. Learned Single Judge examined the claim of the appellants of having taken over possession of the subject land under Section 10(6) of the ULC Act as well as the contents of the panchanama observed that whenever a panchanama is prepared, the same has to be done duly putting the actual owner/interested person on notice; panchas should be reputed and respectable persons of the locality; date and time on which the panchanama was prepared as well as the name, age and address of the panchas should be mentioned in the panchanama. Thereafter, learned Single Judge held that unless and until actual physical possession of the subject l....
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....the respondent by issuing G.O.Ms.No.1534 dated 20.12.2008. In the said order, this Court had set aside G.O.Ms.No.1534 holding that possession of the subject land was not taken over by the government. Accordingly, both the writ petitions were allowed and the panchanama dated 08.02.2008 was set aside. 19. Mr. Raju Ramachandran, learned Senior Counsel for the appellants submits that learned Single Judge was not at all justified in setting aside the panchanama proceedings dated 08.02.2008 and interfering with the action of the State in taking over possession of the surplus land of the respondent under the ULC Act. In the course of his arguments, learned Senior Counsel for the appellants has placed before the Court a flow chart of land belonging to the respondent covered by the final statement made under Section 8(4) of the ULC Act. He submits that respondent had declared under Section 6(1) of the ULC Act a total of 1,63,679 square meters of land in Survey Nos.74/P, 75/P, 76, 78 and 79. Out of the aforesaid land, 5,088 square meters was covered by GVM Road leaving land to the extent of 1,58,591 square meters. By G.O.Ms.No.1729, an extent of land measuring 51,580 square meters i....
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....-section (6) of Section 10, the competent authority may take over possession of the excess vacant land for which purpose such force as may be necessary may be used. Though issuance and service of notice on the person in possession of the excess vacant land under sub-section (5) of Section 10 is mandatory as held by the Supreme Court in Hari Ram (supra) however, subsection (6) of Section 10 nowhere says that after the period of thirty days of service of notice under Section 10(5), another order has to be passed or another notice has to be given. Question of once again putting the parties on notice at the stage of subsection (6) of Section 10 is not statutorily provided. Therefore, learned Single Judge fell in error in taking the view that at the stage of Section 10(6), the owner or person in possession of the excess vacant land has to be again put on notice. There is no such legal requirement. 29.3. Insofar preparation of panchanama is concerned, the same is not statutorily provided either in the ULC Act or in the ULC Rules. Therefore, we fail to understand as to how learned Single Judge came to the conclusion that while preparing the panchanama the site map also needs to b....
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....ssession. Having held so, learned Single Judge proceeded to frame the question as to whether notifications issued under Section 10(5) and 10(6) by the authorities and the panchanama would stand to legal scrutiny. 30.1. As already discussed above, there is no statutory requirement under sub-section (6) of Section 10 to once again put the defaulting owner or the person in possession on notice. After the thirty days period following service of notice under Section 10(5) of the ULC Act is over, it is open to the authority to take over possession of the excess vacant land forcibly, if necessary even by using force. Therefore, the very basis of the learned Single Judge framing the above question does not stand to legal scrutiny, the same being contrary to the legal requirement which has vitiated the impugned judgment and order. 31. In paragraph 31 of the judgment under appeal, learned Single Judge has mentioned that the notice issued under Section 10(6) of the ULC Act has two dates in it i.e., 05.02.2008 and 08.02.2008. As already mentioned above, there is no legal requirement for passing any order or issuing further notice under Section 10(6) of the ULC Act. Therefore,....
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....al possession, do not contain either the addresses of the panchas or their description and do not instill any confidence in the Court that they are genuine. The official respondents did not even bother to file affidavits of the so-called panchas to show that they were present at the site and the panchanama was prepared in their presence. Admittedly, there is no signature of the land owner on the alleged panchanama dated 08.02.2008 or the site map annexed thereto. Even the description of the panchas or their addresses or even their temporary addresses are not shown therein. In the absence of the signatures of the land owner on the panchanama, the panchanama and the site map will have to be considered as having been prepared behind the back of the petitioner and in the office of the authorities. The documents filed by the petitioner establish beyond any doubt that the factory is still running, number of apartments are constructed in part of the land and that the physical possession has not been taken over by the Government, as contended, but the same is still with the petitioner Company. No affidavit of any of the panchas has been filed to show that the authorities have physically go....
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....ary by the surveyor in presence of the panchas, who certified that the panchanama was prepared in their presence. 37. As already discussed above, there was no requirement of passing an order or issuing further notice under Section 10(6) of the ULC Act. Therefore, the order or notice dated 05.02.2008 is of no legal consequence. But the fact remains that according to the version of the appellants, Section 10(5) notice is dated 05.01.2008 which was affixed at a conspicuous place of the premises on 08.01.2008, where after possession was taken over on 08.02.2008 as per the panchanama dated 08.02.2008. Therefore, there was no breach of the thirty days period. To our mind, learned Single Judge committed a manifest error in declaring the notice under Section 10(5) as well as the panchanama as void ab initio and non est in the eye of law. If the correctness or genuineness of the same were disputed by the respondent, then it would be a case of disputed and contentious facts. A proceeding under Article 226 of the Constitution of India is not the proper forum to adjudicate such disputed and contentious facts. As pointed out by the Supreme Court in Bhaskar Jyoti Sarma (supra), such ser....
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.... brushed aside all the illegalities and/or statutory lacunae in the Section 10(5) Notice and the Section 10(6) Order. 19. It is trite law that the requirement of issuance of notice under Section 10(5) and order under Section 10(6) of the Act is mandatory under law. Refer to : Hari Ram (supra) and State of Telangana v. Southern Steels Limited, W.A. 1975 of 2017. 20. Significantly, the judgments in Hari Ram (supra) as well as Southern Steel Limited (supra) were relied upon by the Appellants before the Hon'ble Division Bench. However, the impugned judgment while coming at a diametrically opposite finding, fails to deal with the judgments in Hari Ram (supra) and Southern Steel Limited (supra) in any manner whatsoever. 21. Before this Hon'ble Court, the Respondent had sought to contend that this settled legal position has been disturbed by the Hon'ble Supreme Court in State of Assam v. Bhaskar Jyoti Sarma, (2015) 5 SCC 321. The same is not correct. The facts in Bhaskar Jyoti Sarma were completely different and the same are not in any manner applicable in the case at hand. In Bhaskar Jyoti Sharma, this Hon'ble Court held that where possession is stated to have ....
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....ring illegalities at each stage of the said acquisition proceedings are evident from the statements that follow:- STAGE ILLEGALITIES / LACUNAE Purported Notice under Section 10(5) of the Act a. The Appellant never received the Section 10(5) Notice contemporaneously. The Appellant was made aware of this notice for the first time on 14.09.2010. b. In any event, the Section 10(5) Notice is dated 05.01.2008. As per the Respondents, it was affixed on the main gate on 08.01.2008 on the false pretext that there was a lockout in the factory. c. The Respondent has miserably failed to establish that on the said date, there was a lockout in the factory. Even from a bare perusal of the purported Section 10(5) Notice, it is clear that the same has not been served on the Appellant in any manner whatsoever. There is no signature on the said notice as to who has affixed the same, except a name has been scribbled, which is not legible. The Respondents have also failed to show that any attempt was made by them to carry out service of the Section 10(5) Notice by any other means in any manner whatsoever. d. Even in the situation of lockout, it is implausible that the Respondent au....
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....30 days between a notice under Section 10(5) of the Act and an order under Section 10(6) of the Act. ➢ The Principal Commissioner v. M. Venkataraman, 2014 SCC OnLine Mad 4505; ➢ P. Laxmi Kantha Rao and Others v. Government Of Andhra Pradesh, 2014 SCC OnLine Hyd 1348 h. The Ld. Single Judge rightly held that the Section 10(6) Order is bad in law. Panchnama a. The Appellant never received this anchnama contemporaneously. The Appellant was made aware of this purported Panchnama for the first time on 14.09.2010. b. It is a printed form where gaps have been filled up. c. The purported Panchnama lacks fundamental particulars of a Panchnama such as: - The purported Panchnama did not contain either the address or the description of panchas; - No affidavit was filed by the panchas to evidence that they were present at the site and the Panchnama was prepared in their presence; - There is no signature of the landowner on the Panchnama; and - The purported Panchnama did not contain any site map or distinctive boundaries with sub-divisions, whatsoever. It may be noted that the entire extent of 1,63,679 square meters is bound....
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.... also been held that the entire land is encompassed by a boundary wall and the gate is manned by security guard. Resultantly, it has been conclusively held that the actual physical possession of the Subject Land is still with the Appellant and has not been taken over by the Respondents. 34. Hence, admittedly, the actual physical possession of the Subject Land has not been taken over by the Respondents and the same is with the Appellant. 35. Significantly, Section 3(1)(a) of the Repeal Act provides that restoration of land to the Government shall not take place if "possession" was not taken over by the Government prior to coming into force of the Repeal Act. 36. In relation to the term 'possession' under Section 3 of the Repeal Act, courts have consistently held that 'possession' therein means actual physical possession or de facto possession and not mere paper or de jure possession. In this regard, reliance is placed upon the following judgments: ➢ Vinayak Kashinath Shilkar v. Deputy Collector and Competent Authority and Ors., (2012) 4 SCC 718 ➢ Gajanan Kamlya Patil v. Additional Collector and Competent Authority (ULC) and ....
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....y, the challenge before the Hon'ble High Court in the writ proceedings was with regards to the taking over of possession of the Subject Vacant Land by execution of panchnama. The Appellant did not seek the relief for quashing of notice under Section 10(5) or order passed under Section 10(6) of the ULC Act. 12. The Ld. Single Judge passed a combined order dated 03.01.2022. The Respondents filed W.A. 665/2022 and W.A. 670/2022 before the Division Bench of the High Court. The Division Bench of the High Court passed the Impugned Judgment on 14.02.2023. Submissions: 13. Physical possession of the Subject Land was validly taken over by the Respondent in accordance with the ULC Act before the Repeal Act. The Appellant has alleged that there were some discrepancies / illegalities in the process adopted under Section 10(5) and 10(6) of the ULC Act. Each of the alleged illegalities is dealt as under: I. Issuance of Notice and Service thereof was in accordance with Section 10(5) 14. The Appellant has alleged that the notice dated 05.01.2008 issued under Section 10(5) is illegal on the ground that the said notice was not received by the Appellant wh....
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.... the date '08.02.2008'. Alternatively, the Appellant has suggested that the order dated 05.02.2008 was issued prior to the expiry of the 30 days period from the date of service of the notice under Section 10(5) on 08.01.2008 when the said notice was affixed on the main gate of the Existing Factory. 18. It is submitted that the Order under Section 10(6) is legal: (a) There is no statutory requirement to send another notice under Section 10(6) after the expiry of 30 days from the date of service of notice under Section 10 (5). (b) As such, the order dated 05.02.2008, is immaterial and thus, the alleged discrepancies, if any, are of no relevance and cannot have any legal consequence. (c) The internal notings in a departmental file do not have the sanction of law to be an effective order. It is for internal use and consideration of the other officials of the department and for the benefit of final decision making. These notings are not meant for outside exposure. It is possible that after expressing of an opinion on a particular matter by one officer, another officer may express a different opinion. Reliance is placed upon Bachhittar Singh v. State o....
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....presence of three panchas, namely, (i) Ramayya, (ii) Viswanadham and (iii) Jagdish, whose addresses are mentioned in the panchnama. (b) Two persons stood as witnesses - Venkateshwar Rao and Mallaya. (c) Panchnama records that the notice under Section 10(5) was served upon the Landowner. (d) Pursuant to the expiry of 30 days from the date of service of the notice under Section 10(5) on 08.01.2008, the enquiry officer took over possession of the Subject Vacant Land after identification and fixation of boundary by the surveyor in the presence of panchas, who certified that the panchnama was prepared in their presence. (e) There is no requirement of preparation of a site map along with the panchnama in the absence of any statutory provision or judicial precedent. The Appellant has failed to establish that the panchnama was not prepared as per the mandate. (f) The suggestion of signature of landowner on the panchnama is also without any substance in the absence of any statutory mandate and furthermore, it is unpragmatic to expect from a landowner who is not willing handing over possession of the excess vacant land to sign on the panchnama. ....
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....he panchnama having been validly executed and in terms of the settled position of law, the Respondent has taken over valid and legal possession of the Subject Vacant Land in terms of Section 10(5) and (6) of the ULC Act. It is further submitted that while service of notice is mandatory under Section 10(5) in terms of the judgment in Hari Ram (supra), there is no requirement of service of notice under Section 10(6). 28. It is reiterated that the present case concerns a huge tract of land admeasuring 46,538.43 sq. mts. i.e., the Subject Vacant Land, wherein the Appellant was granted exemption for an area admeasuring 48,859.90 sq. mts under Section 20 (1) (a) subject to the condition of construction of a Proposed Fan Factory, and it was only due to the failure of the Appellant to comply with the said condition that the exemption was later withdrawn by the State Government. 29. In view of the above, it is submitted that the possession of the Subject Vacant Land has been validly taken by the Respondents by issuing of notice and service thereof under Section 10(5) and possession was validly taken over in compliance with Section 10(6) of the ULC Act prior to the coming i....
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....n 3 of the Repeal Act, 1999, if possession of vacant land has been taken over on behalf of the State Government before the coming into force of the Repeal Act, 1999, the repeal of the Principal Act would not affect the vesting of such land under sub-section (3) of Section 10 of Act, 1976. Hence, the issue as to whether actual possession of land declared excess under the Act has been taken over or not assumes great significance after the coming into force of the Repeal Act, 1999 inasmuch as if possession has not been taken over, the proceedings would abate under Section 4 of the Repeal Act, 1999 and the ownership of the land, if vested in the State Government under Section 10(3) of the Act, 1976 would be required to be restored to the original land-holder subject to repayment of any amount that has been paid by the State Government with respect to such land. 21. Sub-sections (5) and (6) of Section 10 of the Act, 1976 respectively which are relevant for the purpose of deciding the present Appeals read as under: "10. Acquisition of vacant land in excess of ceiling limit- (5) Where any vacant land is vested in the State Government under subsection(3),the competent ....
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....explained in the aforesaid two decisions, the authorities are required to act strictly in accordance with the statutory provisions. Thus, when sub-section (5) of Section 10 mandates giving notice of an order under the said sub-section to the person in possession, the same is required to be complied with in its true letter and spirit. Considering the nature of rights involved, mere issuance of notice without service thereof, cannot be said to be due compliance with the provisions of the statute. Besides, the provisions of subsection (6) of Section 10 can be resorted to only if the person fails to comply with an order under sub-section (5) thereof, within a period of thirty days of service of notice. Hence, possession cannot be taken over under Section 10(6) of the Act, 1976 unless a period of thirty days from the date of service of notice has elapsed. In absence of service of notice under sub-section (5) of Section 10, there will be no starting point for calculating the period of thirty days. In other words, time will not start running, hence the question of taking over possession under sub-section (6) of Section 10 of the Act, 1976 will not arise at all. In this view of the matter,....
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....ing down a hypothesis, is that the hypothesis shall be carried as far as necessary to achieve the legislative purpose, but no further'...." (See also DEG Deutsche Investitions und Entwicklungsgesellschaft mbH v. Koshy [(2001) 3 All ER 878(CA)].) 21. Let us test the meaning of the expressions "deemed to have been acquired" and "deemed to have been vested absolutely" in the above legal settings. The expressions "acquired" and "vested" are not defined under the Act. Each word, phrase or sentence that we get in a statutory provision, if not defined in the Act, then is to be construed in the light of the general purpose of the Act. As held by this Court in Organo Chemical Industries v. Union of India [(1979) 4 SCC 573 : 1980 SCC (L&S) 92] that a bare mechanical interpretation of the words and application of a legislative intent devoid of concept of purpose will reduce most of the remedial and beneficial legislation to futility. Reference may also be made to the judgment of this Court in Directorate of Enforcement v. Deepak Mahajan [(1994) 3 SCC 440 : 1994 SCC (Cri) 785]. Words and phrases, therefore, occurring in the statute are to be taken not in an isolated or detach....
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....nal or future enjoyment of (an estate), to grant, endow, clothe with a particular authority, right of property, (2) To become legally vested; (TP Act) Vesting order.-An order under statutory authority whereby property is transferred to and vested, without conveyance in some person or persons;" 26. Black's Law Dictionary (6th Edn.), 1990 at p. 1563: "Vested.-Fixed;accrued; settled; absolute; complete. Having the character or given the rights of absolute ownership; not contingent; not subject to be defeated by a condition precedent. Rights are 'vested' when right to enjoyment present or prospective, has become property of some particular person or persons as present interest; mere expectancy of future benefits, or contingent interest in property founded on anticipated continuance of existing laws, does not continue 'vested right'. Vaughn v. Nadel [228 Kan 469 : 618 P 2d 778 (1980)] . See also Accrue; Vest, and specific types of vested interests, infra." 27. Webster's Third New International Dictionary, of the English Language unabridged, Vol. III S to Z at p. 2547 defines the word "vest" as follows: "'vest' vest ... To pla....
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....nds, 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. The Court in Maharaj Singh v. State of U.P. [(1977) 1 SCC 155], while interpreting Section 117(1) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 held that "vesting" is a word of slippery import and has many meanings and the context controls the text and the purpose and scheme project the ....
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....ssession 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 subsection (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 sub-section (6) of Section 10 contemplates a situation of 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 com....
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....ntary surrender of vacant land before 18-3-1999. The 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 subsection (6) of Section 10. On failure to establish any of those situations, the landowner or holder can claim the benefit of Section 4 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 4 of the Repeal Act." (Emphasis supplied) 28. A close reading of the above judgment more particularly the dictum laid therein lays down that though Section 10(3) of the Urban Land (Ceiling and Regulation) Act, 1978 (Central Act), which is pari-materia to Section 11(3) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 (Ceiling Act), provides that the vacant land is deemed to be acquired, yet it does not mean that the possession of the land has been taken over. This Court has categorically stated that the procedure contained under sub-sections (5) and (6) of the Act, 1976 mus....
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....cupant of the land had unauthorisedly taken possession of the land after its acquisition. 31. The decision rendered in the case of Hari Ram (supra) has been followed by this Court in the case of in Vipin Chandra Vadilal Bavishi v. State of Gujarat, reported in (2016) 4 SCC 531. The relevant paragraphs of the judgment read as under:- "20. From these facts and the documents available on record, it is evidently clear that neither the Notifications under Sections 10(1), 10(2), 10(3) and 10(5) were issued in respect of plot nos. 36 to 43 nor possession of those plots have been taken over by the respondents. Curiously enough even the map attached to the letter dated 26.6.1989 shows that the possession of plot nos. 1 to 16 were taken and not of plot nos. 36 to 43. X x x x 23. A similar question came up for consideration before this Court in the case of State of U.P. v. Hari Ram reported in (2013) 4 SCC 280. In this case, a question arose as to whether the deemed vesting of surplus land under Section 10(3) of the Act would amount to taking de facto possession depriving the landholders of the benefit of the saving clause under Section 4 of the Urban Land ....
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....atute needs to decide the consequences that the legislature intended to follow from failure to implement the requirement. Effect of non-issue of notice under subsection (5) or subsection (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"." 24. The Bench further considered the effect of Repeal Act and held that:- "41. Let us now examine the effect of Section 3 of Repeal Act 15 of 1999 on sub-section (3) of Section 10 of the Act. The Repeal Act, 1999 has expressly repealed Act 33 of 1976. The objects and reasons of the Repeal Act have already been referred to in the earlier part of this judgment. The Repeal Act has, however, retained a saving clause. The question whether a right has been acquired or liability incurred under a statute before it is repealed will in each case depend on the construction of the statute and the facts of the particular case. 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 v....
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....eate an impression that the dictum as laid in Hari Ram (supra) has been diluted. 33. We quote few relevant paras of the said judgment as under:- "14. We say so because in the ordinary course actual physical possession can be taken from the person in occupation only after notice under Section 10(5) is issued to him to surrender such possession to the State Government, or the authorised officer or the competent authority. There is enough good sense in that procedure inasmuch as the need for using force to dispossess a person in possession should ordinarily arise only if the person concerned refuses to cooperate and surrender or deliver possession of the lands in question. That is the rationale behind Sections 10(5) and 10(6) of the Act. But what would be the position if for any reason the competent authority or the Government or the authorised officer resorts to forcible dispossession of the erstwhile owner even without exploring the possibility of a voluntary surrender or delivery of such possession on demand. Could such use of force vitiate the dispossession itself or would it only amount to an irregularity that would give rise to a cause of action for the aggrieved own....
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....ed to have waived his right under Section 10(5) of the Act. Any other view would, in our opinion, give a licence to a litigant to make a grievance not because he has suffered any real prejudice that needs to be redressed but only because the fortuitous circumstance of a Repeal Act tempted him to raise the issue regarding his dispossession being in violation of the prescribed procedure. 17. Reliance was placed by the respondents upon the decision of this Court in Hari Ram's case (supra). That decision does not, in our view, lend much assistance to the respondents. We say so, because this Court was in Hari Ram's case (supra) considering whether the word 'may' appearing in Section 10(5) gave to the competent authority the discretion to issue or not to issue a notice before taking physical possession of the land in question under Section 10(6). The question whether breach of Section 10(5) and possible dispossession without notice would vitiate the act of dispossession itself or render it non est in the eye of law did not fall for consideration in that case. In our opinion, what Section 10(5) prescribes is an ordinary and logical course of action that ought to be follow....
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....ntic shade or nuance of meaning. This Court in Rajendra Kumar v. Kalyan (Dead) by L.Rs. reported in (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." (Emphasis supplied) 37. Sub-section (5) of Section 10 talks of "possession" which says where any land is vested in the State Government under subsection (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 Governmen....
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.... of possession in context with Sections 10(5) and 10(6) respectively of the Act, 1976 read with Section 3 of the Repeal Act, 1999 may be summed up thus: [1] The Repeal Act, 1999 clearly talks about the possession being taken under Section 10(5) or Section 10(6) of the Act, 1976, as the case may be. [2] It is a statutory obligation on the part of the competent authority or the State to take possession strictly as permitted in law. [3] In case the possession is purported to have been taken under Section 10(6) of the Act, 1976 the Court is still obliged to look into whether "taking of such possession" is valid or invalidated on any of the considerations in law. [4] The possession envisaged under Section 3 of the Repeal Act, 1999 is de facto and not de jure only. [5] The mere vesting of "land declared surplus" under the Act without resuming "de facto possession" is of no consequence and the land holder is entitled to the benefit of the Repeal Act, 1999. [6] The requirement of giving notice under sub-sections (5) and (6) of Section 10 respectively is mandatory. Although the word "may" has been used therein, yet the word "may" in both....
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....ossible and a view, which is reasonable and logical has been adopted by a Single Judge, the other view howsoever appealing may be to the Division Bench, it is the view adopted by the learned Single Judge, which should, normally, by allowed to prevail. 43. The learned Single Judge after a meticulous examination of the entire record noticed so many deficiencies in the procedure adopted by the State. The plain reading of the impugned judgement gives an impression that all that the Division Bench kept doing was to cure such deficiencies noted by the learned Single Judge by giving benefit of doubt to the State at every possible stage. 44. The State has not been able to give us any satisfactory reply as to on what basis it says that at the relevant point time the factory was closed; there was not a soul in site and therefore, the officials were left with no other option but to affix Section 10(5) notice outside the premises. This is something which is absolutely unpalatable. The State proceeds further saying that as there was no voluntary surrender of the excess land within thirty days from the date of affixation, it had to invoke Section 10(6) of the Act, 1976 and accordingly took....
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....cal possession of the disputed land had been taken over or not is a seriously disputed question of fact, which the High Court should not adjudicate or determine in exercise of its writ jurisdiction. As a principle of law, there need not be any debate on such a proposition, but by merely submitting that it is a seriously disputed question of fact, the same, by itself, will not become a question of fact. To put it in other words, having regard to the materials on record, which falsifies the case of the State Government, then such materials should not be overlooked or ignored by the Court on the principle that the issue with regard to taking over of the actual physical possession would be a disputed question of fact. 48. Normally, the disputed questions of fact are not investigated or adjudicated by a writ court while exercising powers under Article 226 of the Constitution of India. But the mere existence of the disputed question of fact, by itself, does not take away the jurisdiction of this writ court in granting appropriate relief to the petitioner. In a case where the Court is satisfied, like the one on hand, that the facts are disputed by the State merely to create a ground fo....
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....26 merely because in considering the petitioner's right to relief questions of fact may fall to be determined. In a petition under Art.226 the High Court has jurisdiction to try issues both of fact and law. Exercise of jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition. Rejection of a petition in limine will normally be justified, where the High Court is of the view that the petition is frivolous or because of the nature of the claim made, dispute sought to be agitated., or that the petition against the party against whom relief is claimed is not maintainable or that the dispute raised thereby is such that it would be inappropriate to try it in the writ jurisdiction, or for analogous reasons." (Emphasis supplied) 52. In one of the recent pronouncements of this Court in State of U.P. & Anr. v. Ehsan & Anr. reported in....
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....e(s) on record or because oral evidence would also be required to form a definite opinion, it may relegate the writ petitioner to a suit, if the suit is otherwise maintainable." (Emphasis supplied) 53. Thus, it would all depend on the nature of the question of fact. In other words, what is exactly, that the writ court needs to determine so as to arrive at the right decision. If the only issue, that revolves around the entire debate is one relating to actual taking over of the physical possession of the excess land under the provisions of sub-sections (5) and (6) of Section 10 of the Act, 1976 respectively, then in such circumstances, the writ court has no other option but to go into the factual aspects and take an appropriate decision in that regard. The issue of possession, by itself, will not become a disputed question of fact. If all that has been said by the State is to be accepted as a gospel truth and nothing shown by the landowner is to be looked into on the ground that a writ court cannot go into disputed questions of fact, then the same may lead to a serious miscarriage of justice. 54. We are of the considered opinion that the issue as regards taking over of....