TaxTMI 
TaxTMI 
TaxTMI 
2025 (2) TMI 1231
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....ct 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 the business of manufacture and sale of power transforme....
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....f 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 April 7, 1992, the Special Officer and the Competent Authority for Urban Land Ceiling, Hyderabad, issued a draft statement under Sections 8(1) and 8(3) of the Act, 19....
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....emises 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 land to Sri S.A. Khader, Deputy Tahsildar of this office within thirty days of the service of this Notice." xiii) According to the Respondents due to non-compliance of the aforementioned notice, order under ....
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....s 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 sketch after fixing the boundaries by the surveyor, he himself personally to take into govt. possession in our panchas presence taken into possession. Hence this excess land from today onwards is in the govt. possession as confirmed. This excess land vacant/making plots /made the constructions/structures. Thi....
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....re 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 Section 10(6) of the Act reveals that in the said notice, two dates are mentioned i.e. 05.02.2008 and 08.02.2008. 32. Even if the contention of the official respondents that the 10(5) notice dated 05.01.2008 is sent through registered post is taken to be true, it will take minimum two or three days time for the said notice to re....
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....s 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 same has to be ignored as a minor procedural lapse. The two dates mentioned in 10(6) notice belie the claim of the official respondents that they have taken over the physical possession of the subject land on 08.02.2008. There is no whisper or explanation forthcoming from the authorities as to how the date of 01.10.2008 is mentioned in the 10(6) notice while calculating....
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....he 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. 35. It is apt to note that the Hon'ble Supreme Court in Barangore Jute Factory (referred supra) has held that where the Statute requires a particular act to be done in a particular manner, the same has to be done in that manner alone. It is obvious from the record that the official respondents did not follow the procedure contemplated under the ULC Act, but acted contrary....
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....008 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 possession of the Subject Land is taken over prior to the Repeal Act, 1999 all proceedings shall stand abated upon its enactment. ii. Mere issuance of a notice under Section 10(3) of the Act, 1976 does not automatically entitle the officials of the Respondents to take possession. The requirement of giving notice under Sections 10(5) and 10(6) of the Act, 1976 respectively is mandatory. iii. The documents on record es....
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....5.01.2008 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 Urban Land (Ceiling and Regulation) Rules, 1976 (briefly, 'the ULC Rules' hereinafter). That apart, it was reiterated that there was no lockout in the establishment of the respondent at the relevant point of time; rather it was fully operational for which respondent relied upon various documentary evidence including returns filed before the Employees' State Insurance Corporation for the period from 01.10.2007 to 31.03.2008. 17.3. While denying that notice under Section 10(5) w....
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.... 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 land was taken over, the taking over proceedings under the ULC Act would stand abated on coming into force of the Repeal Act. After referring to various decisions, learned Single Judge held that after issuing notice under Sections 10(1) and 10(3) of the ULC Act, competent authority under the said Act would have to issue notice under Section 10(5) directing the party to surrender possession of the excess land within a period of thirty days. If voluntary possession of the same is not given, then the authorities are....
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....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 in Survey Nos.78 and 79 was allowed to be retained by the respondent to run the industry for manufacturing electrical meters. Though an extent of land admeasuring 48,859.90 square meters was allowed to be retained by the respondent for establishing fan factory, later on the exemption was withdrawn vide G.O.Ms.No.303. Excluding 51,580 square meters from the total extent of 1,58,591 square meters surplus excess land with the respondent was quantified at 1,07,011 square meters. Out of this extent, 56,730.57 square meters in Surve....
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....uestion 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 be prepared and both would have to be attested not only by the panchas and the person preparing the same but also by the land owner. We are afraid learned Single Judge fell in complete error in coming to the aforesaid conclusion as there is no such statutory prescription. The panchanama comes into the picture at the stage of Section 10(6) when the owner or person in possession of the excess vacant land fails to comply with the notice under Section 10(5). Therefore, to expect such a person to put his signature on the panchanama is wholly unrealistic. 29....
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....ibly, 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, the order dated 05.02.2008 at page 234 of the paper book (W.A.No.670 of 2022) is really not material; in fact the same is of no legal consequence. Though below the date 05.02.2008, '08' is written, who has written it is not known. There is also no initial by the side of the figure '08'. But one thing is certain; there is no date '08.02.2008', there being only one date i.e., 05.02.2008. However, what is evident therefrom is that notice under Section 10(5) is dated 05.01.2008. If we contrast this notice at page 234 of the paper book with the order (notice) dated 05.02.2008 at page 334 of ....
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.... 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. 35.1. According to the learned Single Judge, the panchanama does not contain the addresses of the panchas or their description. Affidavits of the panchas were not filed, describing the panchas as so called panchas. Further, according to the learned Single Judge, there was no signature of the land owner in the panchanama. Therefore, such a panchanama would ....
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.... 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 seriously disputed questions of fact would not be amenable to a satisfactory determination by the High Court in exercise of its writ jurisdiction. 38. That being the position, we have no hesitation in our mind that learned Single Judge had erred on facts as well as in law in declaring the notice dated 05.01.2008 under Section 10(5) of the ULC Act as well as the panchanama dated 08.02.2008 being void ab initio and non est in the eye of law and thereafter in setting aside the panchanama." (Emphasis supplied) 14. Thus, what is discernable from the aforesaid discussion in the impugned judgment is as under:- i. Taking over of posse....
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....mited (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 been taken long ago and there is undue delay on the part of the landholder in approaching the writ court, in such a case attraction of the prescribed procedure for taking possession would not be a determining factor, inasmuch as it can be taken that the persons for whose benefit the procedure existed have waived his right thereunder. In that case, the original landowner sold the excess vacant land to six people after a notification under Section 10(1) of the Act had been published. In the first round of litigation, the purchasers questioned the acquisition, and this came up to this Hon'ble Court, wherein such challenge was dismissed in 2002. Thereafter, in 2003, the excess vacant land was allotted to....
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....me 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 authorities were not able to locate any personnel or individual for the purported service of the Section 10(5) Notice. e. It is well settled that affixing of notices, as the Respondents suggest having done, should only be a last resort. ➢ The Government of Tamil Nadu v. Nandagopal, 2011 (3) CTC 843 f. Therefore, it is clear that the so-called stand regarding affixing of the Section 10(5) Notice on the main door of the factory is concocted and nothing but a cock and bull story. g. Moreover, such stand of the Respondents themselves runs counter to their core contention that the factory was not on the Subject Land. Purported Order under Section 10(6) of the Act a. The Appellant never received the Section 10(6) Order contemporaneously. The Ap....
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....it 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 by one compound wall. d. The Ld. Single Judge rightly held that the purported Panchnama is bad in law. 27. Crucially, the concocted and spurious nature of the Notices is evident from the fact that such acts have been carried out by the Respondents against various other entities/individuals in the same region wherein the Subject Land is situated. ➢ J Sarada Govardhini v. Special Officer and Competent Authority, Writ Petition No. 9680 of 2006 ➢ Gonguluri Srinivasa Sharma and Anr. v. Government of AP and Ors., Writ Petition No. 28883 of 2011. 28. In light of the above, it is clear that the purported Section 10(5) Notice, Section 10(6) Order and the Panchnama are ex facie bad in law and de hors the provisions of the Act. The same cannot be relied upon in any manner whatsoever. In view thereo....
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....session. 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 Ors. (supra) ➢ State of Gujarat v. Kamuben, 2019 SCC OnLine Guj 4941 ➢ Dip Co. Op. Hsg. Society Ltd. through Purshottam S. Patel v. State of Gujarat and Others, 2020 SCC OnLine Guj 693 ➢ Dip Co. Op. Hsg. Society Ltd. through Purshottam S. Patel v. State of Gujarat and Others, 2024 SCC OnLine Guj 3034 37. It is important to note that impugned judgment errs in not adopting the settled legal position under the Act. On the contrary, the impugned judgment has wrongly applied the legal position under the Land Acquisition Act, to the acquisition proceedings concerned in relation to the Subject Land. The legal position under the Land Acquisition Act, 1894, or the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 ("Land Acquisition Acts"), regarding the effect of repeal of a statute vis-à-vis possession is wholly inapplicable to acq....
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.... 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 who was made aware of the said notice only on 14.09.2010, and it was merely affixed on the main gate of the Existing Factory on 08.01.2008 without any service through registered post. 15. In this regard, it is submitted that:- a) The notice under Section 10(5) of the ULC Act is dated 05.01.2008, calling upon the Appellant to surrender the Subject Vacant Land. b) The said notice was served upon the Appellant by way of affixation on the main gate of the Existing Factory on 08.01.2008. The Existing Factory was locked / closed on the said date. Since there was no other means to effect service upon the Appellant, the said notice was affixed on the main door of the Existing Factory, belonging to the Appellant, which is adjacent to the Subject Vacant Land. It is submitted that such affixation of notice is deemed service upon the Appellant. c) Furthermore, the Subject Vacant Land being a large tract of vacant land in the present case, service of the notice by affixing it on the door of the Existing Factory belongi....
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....ay express a different opinion. Reliance is placed upon Bachhittar Singh v. State of Punjab AIR 1963 SC 395 relevant para at 10; Sethi Auto Service Station and Another v. Delhi Development Authority and Others (2009) 1 SCC 180 relevant para at 14, 15, 16 and 17; Jasbir Singh Chhabara and Others v. State of Punjab and Others, (2010) 4 SCC 192 relevant para at 35; State of Uttaranchal and Another v. Sunil Kumar Vaish and Others, (2011) 8 SCC 670 relevant para at 24; Pimpri Chinchwad New Township Development Authority v. Vishnudev Cooperative Housing Society and Others, (2018) 8 SCC 215 relevant para at 35 and 36. (d) Without prejudice, the internal notings which culminated into the order dated 05.02.2008 under Section 10(6) does not have any discrepancy. It is submitted that the mentioning of date '01.08.2008' is immaterial and has no legal consequence. (e) The order under Section 10(6) is dated 05.02.2008 but was issued on 08.02.2008 when the panchnama was executed and possession was as such taken over only after the competition of 30 days from the date of service of notice on 08.01.2008. 19. Appellant's challenge to order under Section 10(6) is irrelevant and baseless. It is ....
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....22. It is a settled principle of law that possession of a land can be taken over by execution of a proper panchnama or memorandum. Panchnama is evidence in itself that possession has been taken over and land vests in the government absolutely. In this regard, reliance is placed upon para 30 in the judgment of Sita Ram Bhandari Society, New Delhi v. Lieutenant Governor of NCT of Delhi (2009) 10 SCC 501: "It is also clear that 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..." 23. In Omprakash Verma v. State of A.P. (2010) 13 SCC 158, the same position of law was reiterated, in the context of ULC Act, in Para 85, and it was held: "It is settled law that where possession is to be taken of a large tract of land then it is permissible to take possession by a properly executed panchnama" 24. Reliance is also placed upon Balmokand Khati Educational and Industrial Trust v. State of Punjab (1996) 4 SCC 212 and Para 9 of Tamil Nadu Housing Board v. A. Viswan (1996) 8 SCC 259. 25....
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....es to be dismissed with heavy costs." ANALYSIS 18. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the Division Bench of the High Court committed any error in upsetting the findings recorded by the learned Single Judge. 19. Before adverting to the rival submissions canvassed on either side, we must look into few relevant provisions of the Repeal Act, 1999 which read as under:- "Section 3. Savings- (1) The repeal of the principal Act shall not affect- (a) the vesting of any vacant land under sub-section (3) of Section 10, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority; (b) the validity of any order granting exemption under subsection (1) of Section 20 or any action taken thereunder, notwithstanding any judgment or any Court to the contrary; (c) any payment made to the State Government as a condition for granting exemption under subsection (1) of Section 20. (2) Where- (a) any land is deemed to have vested in the State Government un....
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....nt or to any person duly authorized by the State Government in this behalf within thirty days of the service of notice. (6) If any person refuses or fails to comply with an order made under sub section (5), the competent authority may take possession of the vacant land or cause it to be given to the concerned State Government or to any person duly authorised by such State Government in this behalf and may for that purpose use such force as may be necessary". 22. On a plain reading of the aforesaid provisions, it is apparent that the statute contemplates giving an opportunity to the landholder or any person in possession of excess vacant land to surrender or deliver possession thereof to the State Government and for this purpose provides for giving notice in writing, ordering such person to surrender or deliver possession of such land. It is only when pursuant to such notice, such person refuses or fails to comply with an order under sub-section (5) within a period of thirty days of the service of notice, that the competent authority is required to take over possession of the vacant land and for that purpose may use force, if necessary. Therefore, the provisions of sub-section (6....
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....lying with the provisions of sub-section (5) thereof. Hence, such action being in contravention of the statutory provisions cannot be sustained and deserves to be struck down. 26. The case of Hari Ram (supra) needs to be looked into. In the said case, this Court dealt with the very same issue i.e. deemed vesting of the surplus land under Section 10(3) of the Act, 1976. The matter was from Allahabad. This Court explained the concept of voluntary surrender, peaceful dispossession and forceful dispossession. We may quote the relevant observations:- "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.....
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....i) 792] held: (SCC p. 607, para 12) "12. It is a well-known rule of interpretation of statutes that the text and the context of the entire Act must be looked into while interpreting any of the expressions used in a statute. The courts must look to the object which the statute seeks to achieve while interpreting any of the provisions of the Act. A purposive approach for interpreting the Act is necessary." 23. In Jugalkishore Saraf v. Raw Cotton Co. Ltd. [AIR 1955 SC 376], S.R. Das, J. stated: (AIR p. 381, para 6) "6. ... The cardinal rule of construction of statutes is to read the statute literally, that is by giving to the words used by the legislature their ordinary, natural and grammatical meaning. If, however, such a reading leads to absurdity and the words are susceptible of another meaning the court may adopt the same. But if no such alternative construction is possible, the court must adopt the ordinary rule of literal interpretation." 24. The 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 interests because till that time the land may be either in the ownershi....
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.... endow, or clothe with a particular authority right or property ... to put (a person) in possession of land by the feudal ceremony of investiture ... to become legally vested (normally) title to real property vests in the holder of a property executed deed.]" 28. "Vest"/"vested", therefore, may or may not include "transfer of possession", the meaning of which depends on the context in which it has been placed and the interpretation of various other related provisions. 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 are pitted against a statutory hypothesis. Possession, there is an adage is "nine points of the law". In Beddall v. Maitland [(1881) 17 Ch D 174 : (1881-85) All ER Rep Ext 1812] Sir Edward Fry, while speaking of a statute which makes a forcible entry an indictable offence, stated as follows: (Ch D p. 188) "... This statute creates one of the great differences which exist in our law between the being in possession and the being out of possessio....
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....Charlton [(1878) 4 QBD 104 (CA)] : 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 authorisation 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." 32. We are of the view that so far as the present case is concerned, the word "vesting" takes in every interest in the property including de jure possession and, not de facto but it is always open to a person to voluntarily surrender and deliver possession, under Section 10(3) of the Act. 33. Before we examine sub-section (5) and subsection (6) of Section 10, let us examine the meaning of sub-section (4) of Section 10 of the Act, which says that during the period commencing on the date of publication under sub-section (1), ending with the day specified in the declaration made under sub-section (3), no person shall transfer by way of sale, mortgage, gift or otherwise, any excess vacant land, specified i....
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....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 subsections (5) and (6) of Section 10 is mandatory. Though the word "may" has been used therein, the word "may" in both the subsections has to be understood as "shall" because a court charged with the task of enforcing the statute needs to decide the consequences that the legislature intended to follow from failure to implement the requirement. Effect of non-issue of notice under sub-section (5) or sub- section (6) of Section 11 is that it might result in the landholder being dispossessed without notice, therefore, the word "may" has to be read as "shall". " 27. In the very same judgment, the effect of the Repeal Act, 1999 has also been discussed. Paragraphs ....
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....s of the service of notice. If the landowner fails or refuses to do so, then the State Government has to follow the procedure under sub-section (6) of Section 10 or Section 11 as the case may be, and take forcible possession. 29. Thus, the dictum, as laid in Hari Ram (supra), is that where the possession of the subject land has not been taken over by the State Government or by any person duly authorised by the State Government in this behalf or by the competent authority, the proceedings under the Act would not survive and mere vesting of the vacant land with the State Government by operation of law, without actual possession, is not sufficient. To put it in other words, the mere paper possession would not save the situation for the State Government unless the State is able to establish by cogent evidence that actual physical possession of the entire land was taken over by evicting each and every person from the land. The onus is on the State to establish that actual physical possession of the excess vacant land was taken over before the repeal. 30. The proposition of law that mere paper possession is not sufficient to vest the land in the State has been explained by this Court i....
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....ection (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 comply with the order made under subsection (5), the competent authority may take possession of the vacant land to be given to the State Government and for that purpose, force-as may be necessary-can be used. Subsection (6), therefore, contemplates a situation of a person refusing or fails to comply with the order under sub-section (5), in the event of which the competent authority may take possession by use of f....
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....ourt is right in holding that the respondent is entitled to get the benefit of Section 4 of the Repeal Act. 43. We, therefore, find no infirmity in the judgment of the High Court and the appeal is, accordingly, dismissed so also the other appeals. No documents have been produced by the State to show that the respondents had been dispossessed before coming into force of the Repeal Act and hence, the respondents are entitled to get the benefit of Section 4 of the Repeal Act. However, there will be no order as to costs." 25. The submission of Mr. Kapoor, learned counsel appearing for the respondent State, that mentioning of Plot Nos. 1 to 16 in the Notification issued under Sections 10(1), 10(3) and 10(5) is a clerical mistake which can be corrected by issuing a corrigendum, is absolutely not tenable in law. How Plot Nos. 1 to 16 can be replaced by Plot Nos. 36 to 43 in those Notifications by issuing a handwritten corrigendum which was not even finally approved by the authorities after 1976 Act stood repealed. 26. An arithmetical mistake is a mistake in calculation, while a clerical mistake is a mistake of writing or typing error occurring due to accidental slip or omissions or ....
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....n of possession to him no matter he would upon such restoration once again be liable to be evicted under Sections 10(5) and 10(6) of the Act upon his failure to deliver or surrender such possession. In reality therefore unless there was something that was inherently wrong so as to affect the very process of taking over such as the identity of the land or the boundaries thereof or any other circumstance of a similar nature going to the root of the matter hence requiring an adjudication, a person who had lost his land by reason of the same being declared surplus under Section 10(3) would not consider it worthwhile to agitate the violation of Section 10(5) for he can well understand that even when the Court may uphold his contention that the procedure ought to be followed as prescribed, it may still be not enough for him to retain the land for the authorities could the very next day dispossess him from the same by simply serving a notice under Section 10(5). It would, in that view, be an academic exercise for any owner or person in possession to find fault with his dispossession on the ground that no notice under Section 10(5) had been served upon him. 16. The issue can be viewed fr....
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....) at any stage during his lifetime implying thereby that he had waived his right to do so." (Emphasis supplied) 34. We have supplied emphasis on paras 15 and 17 of Bhaskar Jyoti Sharma (supra) referred to above, for the purpose of highlighting that Hari Ram (supra) has not been diluted in any manner. We are of the firm view that Hari Ram (supra) holds the field even as on date. The statements of law in Hari Ram (supra) are absolutely correct. 35. If two decisions of this Court appear inconsistent with each other, the High Courts are not to follow one and overlook the other, but should try to reconcile and respect them both and the only way to do so is to adopt the wise suggestion of Lord Halsbury given in Quinn v. Leathern, 1901 AC 495 at p.506 and reiterated by the Privy Council in Punjab Cooperative Bank Ltd. v. Commr. of Income Tax, Lahore AIR 1940 PC 230: "...... every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions, which may be found there, are not intended to be expositions of the whole law, but governed or qualified by the particular facts of the case in which such expressions are....
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....ng under subsection (5) to Section 10 to surrender or deliver possession. Sub-section (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. 39. The mere vesting of the land under subsection (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 18.03.1999. State has to establish that there has been a voluntary surrender of vacant land or surrender and delivery of peaceful possession under subsection (5) of Section 10 or forceful dispossession under sub-section (6) of Section 10. On failure to establish any of those situations, the landowner or holder can claim the benefit of Section 3 of the Repeal Act, 1999. In the case on hand, the State Government has in our considered view not been able to establish any of those situations and hence the learned Single Judge was right in holding that the appellant herein is entitled to get the benefit of Section 3 of the Repeal Act, 1999. 40. The effect of Repeal Act, 1999 is further clear. I....
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....b-section (6) of Section 10 or forceful dispossession under sub-section (6) of Section 10. SCOPE OF INTRA-COURT APPEAL 42. We have noticed that the Division Bench in its impugned judgment has used the expression "shockingly the learned Single Judge" at various places. We fail to understand what is so shocking in the judgment of the learned Single Judge that the Division Bench had to interfere in a writ appeal. Was the Division Bench deciding a criminal appeal against the judgment and order of conviction passed by the learned Single Judge? The Division Bench was quite aware that it was deciding an intra court appeal. An intra-court appeal is really not a statutory appeal preferred against the judgment and order of an inferior to the superior court. The Division Bench was not deciding a criminal appeal against the judgment rendered by learned Single Judge. The appeal inter se in a High Court from one court to another is really an appeal from one coordinate bench to another coordinate bench and it is for this reason that a writ cannot be issued by one Bench of the High Court to another Bench of the High Court nor can even the High Court issue writ to a High Court. Thus, unlikely an....
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....th special divisions whatsoever. The entire extent of 1,63679 sq.mtrs. is bound by one compound wall. It seems that the Division Bench in its impugned judgment has observed that there is no requirement under the statute for obtaining the signature of the landowner in the panchnama or filing of the affidavits by the panchas. When State Authorities try to take law in their own hands by hook or crook and rely on bogus paper panchnamas for the purpose of asserting that actual physical possession was taken over before the date of the repeal, then it is imperative that the signature of the landowner must be obtained in the panchnama so as to attach sanctity and authenticity to such exercise of taking over of actual possession. Affidavits of the panchas would also attach great sanctity to the same. 46. We have no hesitation in saying that the State has not placed true and correct facts in all respect. Both of us (J.B. Pardiwala and R. Mahadevan, J.J.) have worked as judges in our respective High Courts. We had the occasion to decide many matters exactly of the present type. Our experience so far has been that out of ten matters in nine matters it was apparent that the cases were one of p....
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....ranted by any provisions of law nor by any decision of this Court. A rigid application of such proposition or to treat such proposition as an inflexible rule of law or of discretion will necessarily make the provisions of Article 226 wholly illusory and ineffective more particularly Section 10(5) and 10(6) of the Act, 1976 respectively. Obviously, the High Court must avoid such consequences. 50. In the aforesaid context, we may look into the decision of this Court in the case of State of Orissa v. Dr. (Miss) Binapani Dei reported in AIR 1967 SC 1269. In paragraph 6 at p. 1270 of the said judgment, this Court has been pleased to hold as follows:- "Under Art. 226 of the Constitution the High Court is not precluded from entering upon a decision on questions of fact raised by the petition. Where an enquiry into complicated questions of fact arises in a petition under Art. 226 of the Constitution before the right of an aggrieved party to obtain relief claimed may be determined. The High Court may in appropriate cases decline to enter upon that enquiry and may refer the party claiming relief to a suit. But the question is one of discretion and not of jurisdiction of the Court."  ....
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....rd are insufficient/inconclusive to enable the Court to come to a definite conclusion. 29. Bearing the aforesaid legal principles in mind, we would have to consider whether, in the facts of the case, the High Court ought to have dismissed the third writ petition of the first respondent and relegate him to a suit as there existed a serious dispute between the parties regarding taking of possession. More so, when the High Court, in the earlier round of litigation, refrained from taking up the said issue even though it had arisen between the parties. 30. No doubt, in a writ proceeding between the State and a landholder, the Court can, on the basis of materials/evidence(s) placed on record, determine whether possession has been taken or not and while doing so, it may draw adverse inference against the State where the statutory mode of taking possession has not been followed [See State of UP vs. Hari Ram (supra)]. However, where possession is stated to have been taken long ago and there is undue delay on the part of landholder in approaching the writ court, infraction of the prescribed procedure for taking possession would not be a determining factor, inasmuch as, it could be taken ....
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....r to put it another way, whether the rule of law as applied to the established facts is or is not violated". [Bausch & Lomb v. United States C.I.T. 166, 169 (Ct. Int'l Trade 1997] 55. In the aforesaid context, we may refer to the decision of this Court in Kolkata Municipal Corporation and Another v. Bimal Kumar Shah and Others reported in (2024) 10 SCC 533, wherein this Court in paras 28 and 29 respectively observed thus:- "28. While it is true that after the 44th Constitutional Amendment [the Constitution (44th Amendment) Act, 1978], the right to property drifted from Part III to Part XII of the Constitution, there continues to be a potent safety net against arbitrary acquisitions, hasty decision-making and unfair redressal mechanisms. Despite its spatial placement, Article 300-A [ 300-A of the Constitution:"300-A. Persons not to be deprived of property save by authority of law.-No person shall be deprived of his property save by authority of law."] which declares that "no person shall be deprived of his property save by authority of law" has been characterised both as a constitutional and also a human right [Lachhman Dass v. Jagat Ram, (2007) 10 SCC 448; Vidya Devi v. State of....