STATE OF ASSAM & ORS. Vs. BHASKAR JYOTI SARMA & ORS : Supreme Court - Urban Land (Ceiling and Regulation) Act, 1976
Supreme Court of India
CIVIL APPEAL NO. 10565 OF 2014 Judgment Date: Nov 27, 2014
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10565 OF 2014
(Arising out of S.L.P. (C) No.4726 of 2011)
State of Assam ...Appellant
Vs.
Bhaskar Jyoti Sarma & Ors. ...Respondents
With
CIVIL APPEAL NO. 10566 OF 2014
(Arising out of S.L.P. (C) No.9615 of 2011)
Jones Ingti Kathar ...Appellant
Vs.
Bhaskar Jyoti Sarma & Ors. ...Respondents
AND
CIVIL APPEAL NO. 10567 OF 2014
(Arising out of S.L.P. (C) No.25824 of 2011)
Gauhati Metropolitan Development
Authority & Anr. ...Appellants
Vs.
Bhaskar Jyoti Sarma & Ors. ...Respondents
J U D G M E N T
T.S. THAKUR, J.
1. Leave granted.
2. These appeals by special leave are directed against an order dated
21st September, 2010 passed by a Division Bench of the High Court of Assam
at Guahati whereby Writ Appeal No.202 of 2007 filed by the respondents
herein has been allowed, order dated 13th April, 2007 passed by a learned
Single Judge of that Court set aside and the respondents held entitled to
restoration of the possession of the land in dispute.
3. Late Bhabadeb Sarma, father of the respondents, was recorded as a
Pattadar of a plot of land measuring 73.26 Ares equivalent to 1 Bigha, 4
Kathas and 16 Lachas, covered by K.P. Patta No.493 (old)/594 (new) in Dag
No.1008(old) of Sahar Ulubari, in Mouza Ulubari, Guahati. With the adoption
of Urban Land (Ceiling and Regulation) Act, 1976 by the State of Assam, the
said Shri Bhabadev Sarma submitted returns under Section 6 of the said Act
on 19th October, 1976. In Urban Land Ceiling Case No.343 of 1976 initiated
by the District Collector against the said Shri Sarma, a draft statement
under Section 8(3) was served upon the owner in regard to the land
aforementioned which was, according to the draft statement, beyond the
ceiling limit of 2000 sq. meters permissible under the Act. Upon
consideration of the objections raised by the owner to the said draft
statement, a final statement under Section 9 was prepared and published on
3rd September, 1982 declaring an area measuring 7981.48 Sq. meters to be in
excess of the permissible limit. A notification dated 16th May, 1984 under
Section 10(1) followed declaring the vacant land aforementioned to be in
excess of the ceiling limit.
4. In November 1984, the owner appears to have sold a major portion of
the land in question to Mr. Kamala Kanta Ozah and five others in terms of
different instruments of sale executed in their favour. A notification
under Section 10(3) was published on 1st January, 1987 and the land in
question declared Ceiling Surplus Government land. A part of the said land
was on that basis allotted in favour of 8 families in terms of land policy
of the Government while the remaining area measuring 8.03 Ares was retained
by the Government. It is not in dispute that the land record was also
corrected by deleting the name of owner Bhabadeb Sarma as the Pattadar. It
is also not in dispute that no land revenue was collected from the
erstwhile owners post vesting of the land in the State under Section 10(3)
of the Act.
5. The appellant's case is that possession of the entire surplus land
was taken over by the Revenue Authority on 7th December, 1992. This did
not, however, deter Kamala Kanta Ozah and others who had purchased the land
either from filing an appeal against the order of vesting or challenging
the proceedings in Writ Petition (Civil Writ Case No.2568 of 1992) filed
before the High Court. Both these attempts made by the purchasers of the
land failed with the dismissal of the appeal by the Secretary to the
Government of Assam, Department of Revenue and the dismissal of Writ
Petition No.2568 of 1992 by the High Court in terms of order dated 21st
May, 2002. The High Court, it is pertinent to mention not only upheld the
order passed by the Collector-cum-Competent Authority but also the
allotment of a substantial portion of the land in favour of 8 different
families eligible for such allotment. Writ Appeal No.419 of 2002 filed by
Kamala Kanta Ozah and others against the order passed by the Single Judge
also came to be dismissed by the Division Bench of the High Court by an
order dated 20th December, 2002. Special leave petition filed against the
said order too failed and was dismissed by this Court on 8th August, 2003.
6. With the challenge to the proceedings under the Act concluding in the
manner indicated above, the Government of Assam by an order dated 27th
November, 2003 allotted an extent of 8.03 Are to Guwahati Metropolitan
Development Authority (GMDA) for construction of an office building for the
said authority. In the meantime on 12th December, 2003 the Urban Land
(Ceiling and Regulation) Repeal Act was notified which came into force in
the State of Assam w.e.f. 6th August, 2003. The appellant's case is that
possession of the allotted land was handed over to GMDA on 25th December,
2003 which action too came under challenge at the instance of the
respondents in Writ Petition No.2519 of 2004, who stepped into the shoes of
Bhabadeb Sarma upon his death on 3rd October, 1997. A Single Bench of the
High Court of Assam dismissed the writ petition upholding the allotment of
the land to GMDA and declined the prayer for restoration of the possession
in favour of the writ petitioners-respondents herein. Aggrieved by the said
order, the respondents filed Writ Appeal No.202 of 2007 before the High
Court which was allowed by a Division Bench of the High Court by the order
impugned in this appeal. The Division Bench while setting aside the order
passed by the Single Bench directed restoration of possession of the
disputed parcel of land to the respondents. The present appeals filed by
the State of Assam and GMDA assail the correctness of the said judgment and
order of the High Court.
7. We have heard learned counsel for the parties at considerable length.
The Urban Land (Ceiling and Regulation) Act, 1999 repealed the Principal
Act w.e.f. the date the State adopted the Repeal Act. In terms of a
resolution passed under clause (2) Article 252 of the Constitution, the
Repeal Act was adopted by the State of Assam w.e.f. 6th August, 2003. We
may at this stage usefully extract Sections 2 and 3 of the Repeal Act which
have a direct bearing on the questions that arise for our determination:
"2. Repeal of Act 33 of 1976 - The Urban Land (Ceiling and Regulation) Act,
1976, (hereinafter referred to as the principal Act) is hereby repealed.
3. Saving. - (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 sub-section (1) of
Section 20 or any action taken thereunder, notwithstanding any judgment of
any court to the contrary;
(c) any payment made to the State Government as a condition for granting
exemption under sub-section (1) of Section 20.
(2) Where -
(a) any land is deemed to have vested in the State Government under sub-
section (3) of Section 10 of the principal Act but possession of which has
not been taken over by the State Government or any person duly authorised
by the State Government in this behalf or by the competent authority; and
(b) any amount has been paid by the State Government with respect to such
land
then, such land shall not be restored unless the amount paid, if any, has
been refunded to the State Government."
8. A bare reading of Section 3 (supra) makes it clear that repeal of the
Principal Act does not affect the vesting of any vacant land under sub-
section (3) of Section 10, possession whereof has been taken over by the
State Government or any person duly authorised by the State Government in
that behalf or by the competent authority. In the case at hand, the
appellant claims to have taken over the possession of the surplus land on
7th December, 1991. That claim is made entirely on the basis of a
certificate of handing over/taking over of possession, relevant portion
whereof reads as under:
"Certificate of handing over/taking over possession
Today on this 7th December, 1991, we took over possession of 70.32 Are of
acquired land as scheduled below vide order of the Deputy Commissioner,
Kamrup's ULC Case No.343 dated 2-3-91 and as per Assam Gazette notification
dated 1-1-87 in the case No.ULC343/76.
Schedule of land
xxx xxx xxx
xxx xxx xxx
Received the possession
(Taken over possession unilaterally)
Sd/-Illegible Given the possession
Designation - SK (G) Designation
7.12.91 Dated Dated
7/12
Countersigned
Sd/-Illegible
Circle Officer
Guwahati Revenue Circle"
9. Relying upon the above document it was strenuously argued on behalf
of the appellants that actual physical possession was taken over from the
erstwhile land owner as early as in December, 1991, no matter relevant
official record does not bear testimony to any notice having been issued to
the land owners in terms of Section 10, sub-section (5) of the Act. It was
argued that so long as actual physical possession had been taken over by
the competent authority title to the land so taken over stood vested
absolutely in the State Government under Section 10(3) and could not be
claimed back no matter the Principal Act stood repealed after such vesting
had taken place. In support of the contention that actual physical
possession had been taken over by the competent authority, the appellant
places heavy reliance upon the fact that challenge to the proceedings under
the Act mounted in Writ Petition No.2568 of 1992 by the purchasers of a
part of the disputed land had failed right up to this Court and the
allotment of a substantial part of the surplus land in favour of the 8
families affirmed. This, according to the appellant, proves that possession
of the surplus land had indeed been taken over from the erstwhile owner in
terms of proceedings held on 7th December, 1991. It was also contended that
Bhabadeb Sarma, the erstwhile owner, had remained aloof even when he was a
party to the writ petition filed by the purchasers who had questioned the
validity of the order passed by the competent authority including the
allotment of the surplus land in favour of third parties. It was urged
that the Repeal Act would have no effect whatsoever even when the taking of
possession was without notice to the erstwhile owner especially when the
owner had failed to question any such take over at the appropriate stage in
appropriate proceedings. The challenge mounted by the legal heirs of the
deceased erstwhile owner 13 years later was clearly untenable and
afterthought. Failure of the land owner to seek redressal against non-
compliance with the statutory requirement of a notice before possession is
taken would constitute abandonment of the right of the owner under Section
10 (5) which cannot be resuscitated after lapse of such a long period only
to take advantage of the Repeal Act. The question whether actual physical
possession of the disputed land had been taken over is in any case a
seriously disputed question of fact which could not be adjudicated or
determined by the High Court in its writ jurisdiction.
10. Mr. P.K. Goswamy, learned senior counsel, appearing for the
respondents, on the other hand, argued that actual physical possession must
be proved to have been taken over by the State Government or by a person
duly authorised by the State Government in that behalf or by the competent
authority in order that the saving of clause in the Repeal Act could save
any action already taken under the principal Act. Possession of surplus
land could, in turn, be taken only by the owner surrendering or delivering
possession to the State Government or the persons duly authorised by the
State Government. In the event of failure or refusal of the owner to
surrender or deliver the same, possession of the surplus land could be
taken forcibly also but only in accordance with the procedure prescribed.
The Scheme of Section 10 does not, according to Mr. Goswamy, permit taking
over of possession by the State Government or the authorised person or the
public authority without following the procedure prescribed under Section
10(5), namely, issuing a notice in writing to the person to surrender or
deliver the same. Inasmuch as actual physical possession in the case at
hand is alleged to have been taken over without following the said
procedure the alleged take over shall be deemed to be non-est in the eye of
law atleast for the purposes of Section 3 of the Repeal Act. Relying upon
the decision of this Court in State of Uttar Pradesh v. Hari Ram (2013) 4
SCC 280, it was argued by Mr. Goswamy that the procedure prescribed under
Section 10(5) for taking physical possession of the land under Section
10(6) was mandatory and so long as the said procedure was not followed, no
possession can be said to have been taken over within the meaning of
Section 3 of the Repeal Act.
11. Section 3 of the Repeal Act postulates that vesting of any vacant
land under sub-section (3) of Section 10, is subject to the condition that
possession thereof has been taken over by the competent authority or by the
State Government or any person duly authorised by the State Government.
The expression "possession" used in Section 3 (supra) has been interpreted
to mean "actual physical possession" of the surplus land and not just
possession that goes with the vesting of excess land in terms of Section
10(3) of the Act. The question, however, is whether actual physical
possession of the land in dispute has been taken over in the case at hand
by the competent authority or by the State Government or an officer
authorised in that behalf by the State Government. The case of the
appellant is that actual physical possession of the land was taken over on
7th December, 1991 no matter unilaterally and without notice to the
erstwhile land owner. That assertion is stoutly denied by the respondents
giving rise to seriously disputed question of fact which may not be
amenable to a satisfactory determination by the High Court in exercise of
its writ jurisdiction. But assuming that any such determination is
possible even in proceedings under Article 226 of the constitution, what
needs examination is whether the failure of the Government or the
authorised officer or the competent authority to issue a notice to the land
owners in terms of Section 10(5) would by itself mean that such
dispossession is no dispossession in the eye of law and hence insufficient
to attract Section 3 of the Repeal Act. Our answer to that question is in
the negative. 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 owner or the person in possession to seek
restoration only to be dispossessed again after issuing a notice to him.
It is this aspect that has to an extent bothered us. The High Court has
held that the alleged dispossession was not preceded by any notice under
Section 10(5) of the Act. Assuming that to be the case all that it would
mean is that on 7th December, 1991 when the erstwhile owner was
dispossessed from the land in question, he could have made a grievance
based on Section 10(5) and even sought restoration 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.
12. The issue can be viewed from another angle also. Assuming that a
person in possession could make a grievance, no matter without much gain in
the ultimate analysis, the question is whether such grievance could be made
long after the alleged violation of Section 10(5). If actual physical
possession was taken over from the erstwhile land owner on 7th December,
1991 as is alleged in the present case any grievance based on Section 10(5)
ought to have been made within a reasonable time of such dispossession. If
the owner did not do so, forcible taking over of possession would acquire
legitimacy by sheer lapse of time. In any such situation the owner or the
person in possession must be deemed 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.
13. 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
followed before the authorities decided to use force to dispossess the
occupant under Section 10(6). In the case at hand if the appellant's
version regarding dispossession of the erstwhile owner in December 1991 is
correct, the fact that such dispossession was without a notice under
Section 10(5) will be of no consequence and would not vitiate or obliterate
the act of taking possession for the purposes of Section 3 of the Repeal
Act. That is because Bhabadeb Sarma-erstwhile owner had not made any
grievance based on breach of Section 10(5) at any stage during his lifetime
implying thereby that he had waived his right to do so.
14. Mr. Goswamy drew our attention to a decision of this Court in State
of Gujarat and Anr. V. Gyanaba Dilavarsinh Jadega (2013) 11 SCC 486 to
argue that a Writ Court could also examine the question of dispossession as
was the position in that case which too arose out of a proceeding under the
Urban Land (Ceiling and Regulation) Act. This Court in that case remanded
the matter back to the High Court to determine the question whether
possession of the land had been taken over before the Repeal Act came into
force. In the instant case the Single bench of the High Court had while
dismissing the writ petition filed by the respondents relied upon the fact
that the writ petition filed by the purchasers of a portion of the surplus
land had been dismissed and the allotment of a portion of the surplus land
in favour of separate family affirmed not only by the Division Bench of the
High Court but also by this Court in a further appeal. The possession of
land purports to have been taken over from the erstwhile owner in terms of
proceedings dated 7th December, 1991. Inference drawn appears to be that
if allotment of substantial part of the surplus land to the third parties
has been affirmed, it only means that possession was indeed taken over for
otherwise there was no question of allotting the land to third parties nor
was there any question of such allottee-occupants using the same. We
cannot, however, ignore the fact that the question of dispossession of the
owner or the transferee was never agitated or determined by the High Court
in the writ petition filed by the transferee. We could appreciate the
argument if the issue regarding dispossession had been raised and
determined by the Courts in the previous litigation. That was, however, not
so, apparently, because the question of dispossession was not relevant in
the proceedings initiated by the transferees who were challenging the
vesting order on the ground of their having purchased the surplus land from
the owner. That attempt failed as the Court found the sale in their favour
to be void. The question of dispossession relevant to Section 3 of the
Repeal Act thus never arose for consideration in those proceedings. It
will, therefore, be much too farfetched an inference to provide a sound
basis for either the High Court or for us to hold that dismissal of the
writ petition filed by the purchasers in the above circumstances should
itself support a finding that possession had indeed been taken over.
Having said that we must hasten to add that even the Division Bench has
while reversing the view taken by the single bench not recorded any
specific finding to the effect that possession had actually continued with
the erstwhile owner even after the vesting of the land under Section 10(3)
and the proceedings dated 7th December, 1991.
15. In support of the contention that the respondents are even today in
actual physical possession of the land in question reliance is placed upon
certain electricity bills and bills paid for the telephone connection that
stood in the name of one Mr. Sanatan Baishya. It was contended that said
Mr. Sanatan Baishya was none other than the caretaker of the property of
the respondents. There is, however, nothing on record to substantiate that
assertion. The telephone bills and electricity bills also relate to the
period from 2001 onwards only. There is nothing on record before us nor was
anything placed before the High Court to suggest that between 7th December,
1991 till the date the land in question was allotted to GMDA in December,
2003 the owner or his legal heirs after his demise had continued to be in
possession. All that we have is rival claims of the parties based on
affidavits in support thereof. We repeatedly asked learned counsel for the
parties whether they can, upon remand on the analogy of the decision in the
case of Gyanaba Dilavarsinh Jadega (supra), adduce any documentary evidence
that would enable the High Court to record a finding in regard to actual
possession. They were unable to point out or refer to any such evidence.
That being so the question whether actual physical possession was taken
over remains a seriously disputed question of fact which is not amenable to
a satisfactory determination by the High Court in proceedings under Article
226 of the Constitution no matter the High Court may in its discretion in
certain situations upon such determination. Remand to the High Court to
have a finding on the question of dispossession, therefore, does not appear
to us to be a viable solution.
16. Confronted with the above position, Mr. Goswamy made a suggestion. He
urged that having regard to the fact that Urban Land (Ceiling and
Regulation) Act, 1976 has been repealed as also the fact that no notice
under Section 10(5) was ever issued any proceedings meant to determine
whether actual dispossession had or had not taken place, whether by the
High Court or any Civil Court is bound to take another decade if not more.
The respondent would, therefore, be happy and satisfied if the order passed
by the High Court is upheld except to the extent of land to be restored to
the respondents equivalent to 8.03 Are (equivalent to 3 Kathas) which
extent has been allotted in favour of Guwahati Metropolitan Development
Authority. The appellant has responded to the said offer of the respondents
and pointed out that out of the eight families in whose favour the surplus
area was settled in the year 1992, four families have been allotted
disputed land in questing measuring 1 bigha, 4 Kathas, 16 laches. John
Ingti Katha one of the respondents in these appeals is one of such
allottees of the settled area. The affidavit further states that settlement
of 8.03 'Are' (equivalent to 3 Kathas) was made in 2003 in favour of GMDA
in the year 2003 and that restoration of the balance land i.e. 1 bigha, 4
Kathas, 16 laches to respondents 1 to 3 will affect the settlement already
made in favour of John Ingti Kathar and his wife, late Bansidhar Duara and
his wife, Sri Jyotimoyh Chakrabarty and his wife and Sri P.S. Bhattacharjee
and his wife. The affidavit further give details of the settlement made in
respect of the dispute extent of land in favour of GMDA and the four
families mentioned above.
17. From the affidavit filed after the conclusion of the argument in this
case, it appears that the disputed extent of land i.e. 1 bigha, 4 Kathas,
16 laches also stands fully settled in favour of allottees. Such being the
case the offer made by Shri Goswamy does not appear to be a feasible
solution at this stage particularly when the allotments made are not in
question nor have the allottees been impleaded as party respondents.
18. In the result, these appeals succeed and are, hereby, allowed. The
order passed by the Division Bench of the High Court is set aside and that
passed by the Single Bench of that Court affirmed. The parties are left to
bear their own costs.
...............................................J.
(T.S. THAKUR)
.................................................J.
New Delhi; (R. BANUMATHI)
November 27, 2014
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