High Court · 2010

5. At this stage, it would be pertinent to refer to Section 4 of th e Act, 1976 whereunder ceiling limit is provided. In Clause (a) (b) (c) & (d) sp ecific ceiling limit in respect of urban agglomeration has been indicated agains t each category in Schedule-I. According to the appellants Guwahati falls within the category of ’D’ of the schedule-I where ceiling limit is provided as 2000 Sq. Mtrs. that means an owner of land in an urban agglomeration falling within c ategory-D specified in schedule-I can only retain 2000 Sq. mtrs. of vacant land, the excess thereto are liable to be acquired under the provisions of the Act, 1 976. Even after publication of the notification in the official gazette under Se ction 10(3) of the Act, Late Bhabadeb Sarma continued to remain in possession of the land declared as ceiling surplus until his death on 03-09-1997 and after hi m the appellants herein. It is also the pleaded case of the appellants that afte r the death of their father they being in the continued possession of the land i nducted one Sanatan Baishya as caretaker. The appellants being in possession of the land (ceiling surplus) obtained electricity connection in respect of the pre mises standing thereon and also installed a public call office after obtaining permission from the postal department. They also obtained permission from Guwaha ti Municipal Corporation Authorities for running a restaurant/tea stall in said premises by Sanatan Baishya. The electricity connection to the premises on the land, the installation of P.C.O and permission to run a restaurant in the premis es by Sanatan Baishya, according to the appellants give indication of their poss ession in the land even after finalization of the ceiling proceeding. The Act, 1 976 was repealed by the Parliament by the Repealing Act of 1999 with effect from 22-03-1999. The Repealing Act was adopted by the State of Assam on 06-08-2003 b y a resolution under Clause-2 of Article 252 of the Constitution in the Assam Le gislative Assembly and the gazette notification in this regard was published on 5-12-2003. It is the case of the appellant that the Repealing Act, 1999 did not affect the vesting of any vacant land under Section 10(3) of the Principal Act i f the possession of such land had been taken over by the State or any other pers on duly authorized by the State Government. Under Section 3(2) of the Repealing Act, 1999 though any land may have vested in the State Government under Section 10(3) of the Act, if the possession of such land had not been taken over by the State or any persons duly authorized by the State Government such land is to be restored to the owner subject to return of compensation that may have been recei ved by such owner. Appellants contended in categorical terms that possession of 1 B 4Ks 16Ls of land out of the total land covered by the land ceiling proceedin g continued to remain with their predecessor-in-interest and after his death wit h the petitioners notwithstanding the finalization of the ceiling proceeding. Ap pellants also contended that under Section 10(5) of the Act, 1976 a person in po ssession of the ceiling surplus land is entitled to receive a notice to deliver or surrender possession to the State and in the event of such possession not del ivered, recourse is available under Section 10(6) of the Act and with the aid of the provision possession can be taken over. At no point of time neither the pre decessor-in-interest Late Bhabadeb Sarma nor the appellants after his death nor the caretaker of the land (1B 4Ks 16Ls) did receive any notice under Section 10( 5) of the Act directing to handover rather delivered or surrender the vacant pos session of the land in question. This being the position, it is contended by the appellants that they continued in possession and remained there at till the dat e of their eviction on 25-12-2003 taking recourse to Rule 18(2) of the Rules und er Assam Land and Revenue Regulation and by virtue of the Repealing Act 1999 the y are entitled to get back the ownership of the land in questions. Further the a ppellants also contended that no compensation for the land under the provisions of the Act had been paid by the State either to their predecessor Late Bhabadeb Sarma or to them.

6. Allotment of 4 kathas of land out of land measuring 1B 4ks 10 Ls under their alleged possession was allotted in favour of the respondent No. 6 b y order dated 27-11-2003, such allotment in absence of notice under Section 10(5 ) of the Act is also challenged together with the eviction proceeding initiated by eviction notice issued under Rule 18(2) of the settlement rules.

7. The case of the appellants has been denied and disputed by the r espondents herein by filing their affidavits. All the respondents appear to have taken almost similar objections in their counter affidavit. The respondents hav e denied and disputed the possession of the surplus land determined by the ceili ng proceeding against Late Bhabadeb Sarma was not acquired by the State. In this connection the respondents have contended that the possession of the land was unilaterally taken over by the revenue authority on 7-12-1991 since the land own er, the predecessor-in-interest of the appellants failed to deliver or surrender possession of the land under the Act. According to the respondents after notifi cation dated 16-5-1984 issued under Section 10(1) of the Act was published in th e official gazette, the predecessor-in-interest of the appellants Late Bhabadeb Sarma had sold some parts of the land on 12-11-1984. After publication of the no tification under Section 10(3) of the Act, the possession of the land was taken over in the manner indicated above and allotment of the part of the land was mad e in favour of certain persons but when the allottees had gone to take possessio n of their respective land so allotted, the persons who had purchased the land f rom Late Bhabadeb Sarma raised a dispute which entailed a writ proceeding regist ered and numbered as Civil Rule No. 2568 of 1992, wherein Late Bhabadeb Sarma, t he predecessor-in-interest of the appellants was arrayed as proforma respondent. The aforesaid civil revision petition was disposed by this court on 21-5-2002 holding that the transfers made by Late Bhabadeb Sarma after publication of noti fication dated 16-05-1984 under Section 10(1) of the Act are void and contrary o f the provisions of the Act. This Court further held that as the land had alread y vested in the State upon publication of the notification dated 1-1-1987 under Section 10(3) of the Act, the purchasers cannot be held to have acquired any rig ht whatsoever in the lands. This court thus holding the allotments made to the a llottees from the ceiling surplus land in question dismissed the civil revision petition. The respondents also by their counter brought on record an order dated 8-8-2003 of the Apex Court dismissing the Special Leave Petition against the or der dated 21-05-2002 affirmed by a division bench of this court in writ appeal N o. 419 of 2002 by order dated 20-12-2002. It was also contended in the counters by the respondents that at no point of time in course of the proceeding in Civil Rule No. 2568 of 1992, the question of possession was raised by the predecessor -in-interest of the appellants, in absence of such plea/contention this court by order dated 21-5-2002 arrived at a categorical finding that after publication o f the notification under Section 10(1) of the Act, the predecessor-in-interest o f the appellants had not filed any claim in the land in question. The respondent s, therefore, claimed that the issues now sought to be raised has been settled b y this court vide judgment and order dated 21-05-2002. The land measuring 1B 4Ks 16Ls being a part of the ceiling surplus land, when the judgment and order date d 21-5-2002 goes in favour of the allottees such alleged possession of the appel lants cannot subsist in law, in this circumstances the respondents contended tha t the allotment of the land measuring 4 kathas to respondent No. 6 for building its office complex though made belatedly will not affect the validity of the sam e. It is also claimed by the respondents that claimed possession of their lands through their caretaker, Sanatan Baishya being absolutely unauthorized, the appe llants cannot reap any fruit from such possession.

8. The averments of the respondents made in their respective counte r affidavit have been confronted by the appellants by filing reply wherein it is contended that the issues involved in the Civil Rule No. 2568 of 1992 are quite distinct and different from the issues involved in this writ petition and the w rit appeal as well. Civil Rule No. 2568 of 1992 was filed by the purchasers of t he land, purchased from Late Bhabadeb Sarma, the predecessor-in-interest of the appellants challenging the allotment made to the respondents therein and therefo re, the decision of the Civil Rule would not however affect or prejudice the iss ues involved in the writ petitions as well as appeal. It is contended in the rep ly affidavit that even after publication of notification under Section 10(3) of the Act Late Bhabadeb Sarma, the father of the appellants and after his death th e appellants themselves continued to remain in possession at lest in the land me asuring 1B 4Ks 16Ls, a parcel of the ceiling excess acquired vide notification u nder Section 10(1) of the Act. Unless the possession of the land (ceiling surplu s) is taken over under the provisions of Sections 10(5) of the Act by issuing a notice directing the owner to surrender or deliver the possession of the land, the possession of the land can never be with the Government. If after issue of n otice under Section 10(5) of the Act, the owner refuses to surrender or deliver possession of the land in question, the provisions of Section 10(6) of the Act w ould come into play and the Government can act accordingly else not. When no not ice under Section 10(5) of the Act was issued either to Late Bhabadeb Sarma and on his death to the appellants directing him or them to surrender or deliver pos session, the possession of the land remained with the owner and for that by ope ration of the provisions of Section 3(2) despite vesting of the land in the Stat e Government under Sub-Section 3 of Section 10 of the Principal Act, the land re quires restoration to the person concerned after refund of the amount if paid by the State Government in the meantime. It is further contended, the land deemed to have been vested in the State Government under Sub Section 3 of Section 10 of the Principal Act would not operate as an estoppel in the restoration of the la nd to the person concerned if possession of the land has not taken over by the S tate Government under Section 10(5) of the Act. Appellants contended in their re ply affidavit that the alleged unilateral taking over possession would be invali d for non-compliance of the provisions of Section 10(5) of the Act. They have al so contended that such unilateral possession was also not taken over by any pers on duly authorized by the State Government. When any vacant land is vested in th e Government under Section 10(3) of the Act, the competent authority is required to issue a notice in writing to the person concerned to surrender or deliver po ssession of the vacant land to the State Government or to any person authorized by the State Government within 30 days of the service of notice in other words t he owner of the vacant land vested in the State Government is required to delive r or surrender possession of the land within 30 days of the service of notice. T his provision being not resorted to by the State Government or its competent aut hority, the owner of the vacant land would be entitled to restoration of possess ion of the land subject to refund of the amount if already paid.

9. If the owner even after a receipt of the notice failed to comply with an order made under Sub-Section 5 of Section 10 of the Act, the authority may take possession of the vacant land by use of force as may be necessary. This provision is provided under Sub-Section 6 of Section 10 of the Act. The Appella nts therefore, for non-compliance of this mandatory provision of Section 10(5) o f the Act contended that unilateral possession of the respondents in respect of the vacant land would be illegal and inoperative in law. Subsequent eviction of the appellants from the land in question by resorting to eviction proceeding as provided under Rule 18(2) of the Rules under Assam Land and Revenue Regulation would not come in aid rather rescue of the respondents. In the facts situation u nder the Repealing Act, the appellants are entitled to restoration of the posses sion of the vacant land measuring 1B 4Ks 16Ls.

10. The respondents before the learned Single Judge raised an issue of maintainability of the writ petition in view of the decision in Civil Rule N o. 2568 of 1992 which attained finality after the passing of the order dated 8-8 -2003 by the Apex Court in SLP (civil) No. 5059 of 2003. It was contended befor e the learned Single Judge that after publication of the notification in the off icial gazette under Section 10(1) of the Act on 16-5-1984 in respect of the ceil ing surplus land owned by Late Bhabadeb Sarma, he in the year 1984 executed sale deeds transferring different areas of the ceiling surplus land to six different persons and after publication of notice under Section 10(3) of the Act the Stat e Government after taking unilateral possession of the land on 7-12-1991 allotte d some parcels of land to different allottees namely respondent No. 4 to 9 and o n account of such allotment the purchasers being aggrieved brought this Civil Ru le No. 2568 of 1992 which attained finality after the order passed by the Apex C ourt on 8-8-2003. It was contended that by virtue of notification under Section 10(1) of the Act the State Government acquired land measuring 7981.48 Sq. mtrs. being the ceiling surplus land which subsequently vested in the State Government absolutely by dint of notification under Section10(3) of the Act. It was also c ontended that the sale deeds executed by Late Bhabadeb Sarma in favour of six pe rsons in the year 1984 after acquisition of the land by the State Government, t herefore, such sale is void and inoperative. When by notification under Section 10(1) of the Act, the vacant land (ceiling surplus) had been acquired and vested per notification under Section 10(3) of the Act in the State Government absolut ely, possession in respect of a part thereof by Late Bhabadeb Sarma and after hi s death by the appellants cannot sustain in view of judgment of this court in Ci vil Rule 2568 of 1992 and affirmed by division bench of this court and ultimatel y by the Apex Court. Therefore, allotment of the land to the allottees by the Go vernment was proper and legal. It was also contended that vesting of the ceiling surplus land under the provision of section 10(3) of the Act was in respect of the entire ceiling surplus land owned by Late Bhabadeb Sarma. The respondents on this ground contended before the leaned Single Judge that the writ petition is not maintainable. But the learned Single Judge refused to accept their submissio n on the ground that question of taking over possession in order to determine th e rights of the appellants under the Repealing Act, 1999 in view of the contenti on raised by the appellants in particular will be open for consideration of the Court and such question should not be understood as forclosed by the decision in Civil Rule 2568 of 1992. We, therefore, do not find any ground to re-open the i ssue of maintainability since the learned Single Judge set the issue in rest.

11. There is no dispute in regard to acquisition of the ceiling surp lus land owned by Late Bhabadeb Sarma, the predecessor-in-interest of the appell ants and vesting of the same in the Government by notification under Section 10( 3) of the Act. There is also no dispute regarding possession in respect of the l and measuring 1B 4Ks 16Ls even after publication of notification under Section 10(3) of the Act, such possession in respect of the land with the appellants is not only evident from the eviction proceeding under Rule 18(2) of the Rules unde r Assam Land and Revenue Regulation but also from the fact of providing, the ele ctricity connection to the premises situated in the land, establishment of a PCO with the approval of the postal department and permission of the Guwahati Munic ipal Corporation for running a restoration/tea stall thereat. Mr. A.K. Bhattach arjee, learned Sr. counsel, therefore, contended that possession in respect of l and measuring 1B 4Ks 16Ls which is a parcel of the acquired land under the Urban Land Ceiling Case No. 343 of 1976 was with the appellants till their eviction t herefrom on 25-12-2003. This piece of submission though not refuted by the couns el of the respondents, it was vehemently argued that such possession of the appe llants of the land was illegal in view of taking over of the possession of the e ntire ceiling surplus land unilaterally on 7-12-1991 by one of the officers of t he Revenue Department of the State Government confirmed by the Circle Officer vi de letter dated 20-4-1992 addressed to Deputy Commissioner (Land Reform Branch).

12. Countering the above submissions by the counsel of the responden ts, Mr. A. K. Bhattacharjee, learned Sr. counsel for the appellants submitted be fore us that such unilateral possession of the land being taken over by an unaut horized person would be invalid in view of non compliance of the provisions of S ection 10(5) of the Act. It was argued by Mr. Bhattacharjee that the unilateral taking over of possession would be possible only when the land owner in spite of issuance of notice under Section 10(5) of the Act failed to surrender or delive r possession of the land to the State Government or to any person duly authorize d in this behalf within 30 days of the service of notice. It was also argued tha t there is no evidence forthcoming that the S.K whose signature appears in Annex ure-IV was a person duly authorized by the State Government to take possession o f the land (ceiling surplus). It was also argued by him that evidence is wanting in respect of issue of notice to the land owner under Section 10(5) of the Act. Unless a notice under Section 10(5) of the Act is issued or served upon the own er of the land directing surrender or deliver possession, despite vesting of the land in the State Government under notification 10(3) of the Act, the possessio n of the land would remain with the land owner. Section 10(6) would be operative or in other words come in aid when the land owner refuses to deliver or surrend er the possession. When there is no evidence forthcoming of such issuance of not ice under Section 10(5) of the Act, refusal on the part of the land owner would not come to the forefront, therefore, unilateral possession of the land as claim ed by the respondents on 7-12-1991 would be illegal and not sustainable.

13. The moot question that involved in this instant appeal is whethe r the words (cid:28)such land shall be deemed to have vested absolutely in the State Go vernment (cid:29) occurring in Section 10(3) of the Act, 1976 would signify delivery or surrender of possession of such land to the Government by the authority of the n otification, if not, whether for the purpose a notice under Section 10(5) of the Act is mandatorily required to be issued to the owner of the land directing him to surrender or deliver possession.

14. In the Act, 1976, the procedure for acquisition as well as posse ssion has been provided in Sections 6 to 11, both inclusive. Section 6 provide f or submission of return in respect of vacant land in excess of ceiling limit. Se ction 7 deals with filling of statement in cases where vacant land held by a per son is situated within the jurisdiction of two or more competent authorities, wh ile section 8 provides preparation of draft statement as regards to vacant land in excess of ceiling limit and also objection to the draft statement by the pers on concerned. Section 9 deals with preparation of the final statement after disp osal of the objections, if any in respect of the ceiling surplus land, while sec tion 10 provides the provisions for acquisition of the vacant land in excess of ceiling limit. Sub Section 1 of section 10 speaks of publication of notification for acquisition of the land in excess of ceiling limit in the official gazette. While sub Section 2 provides for filing of claims of the persons interested in the vacant land. Sub Section 3 of Section 10 is in regard of publication of a no tification in the official gazette that the land so acquired (excess of ceiling limit) deemed to have been vested absolutely in the State Government free from a ll encumbrances with effect from the date so specified. Sub Section 4 of Section 10 prohibits transfer of such land by way of sale, mortgage, gift, lease or oth erwise specified in the notification and also in regard to alteration of such la nd. Sub Section 5 of Section 10 is in regard to surrender or delivery of possess ion of such land to the State Government or to any person duly authorized by the State Government in this behalf by a notice in writing within thirty days of th e service of such notice while sub Section 6 relates to taking over of possessio n the land when persons refuses or fails to comply with the order made under Sec tion 10(5) of the Act by use of force if necessary. Section 11 provides payment of amount of the vacant land so acquired by the State Government. Of these provi sions indicated above, provisions of Section 10 appear to be very very vital and important in respect of acquisition of the land in excess of ceiling limit as p rovided under Section 4 of the Act. From the bare reading of these provisions it would appear to us that for achieving the goal of acquisition of vacant land in excess of ceiling limit the procedures provided in Sections 6 to 11 are to be f ollowed one after another without any deviation therefrom. Pick and choose proce dure adopted by the competent authority would not stand the test of acquisition of vacant land in excess of ceiling limit.

15. It was contended by Mr. A. K. Bhattacharjee, learned Sr. counsel for the appellants that the competent authority failed to adhere to the provisi ons at least under Section 10(5) of the Act in the context of acquisition of the vacant land in excess of ceiling limit belonging to Late Bhabadeb Sarma, the pr edecessor-in-interest of the appellants. It was argued that the competent author ity cannot by pass any of the provisions of the Act in respect of acquisition of the vacant land, if done so, the entire procedure for acquisition would be viti ated. It was argued by Mr. Bhattacharjee that the intention of the Parliament wa s lucid and clear to incorporate the provisions of section 10(5) in the Act. Tho ugh vacant land in excess of ceiling limit is deemed to have vested absolutely u nder publication of the notification in the official gazette under Section 10(3) of the Act, such deemed vesting would not signify surrender or delivery of poss ession of the vacant land by the person concerned and to achieve that end compe tent authority is required to issue notice in writing directing the land owner t o deliver or surrender the possession of the vacant land to the State Government or to any person duly authorized by the State Government within 30 days from th e date of the received of the notice. If such land owner fails or refuses to sur render or deliver the possession of the vacant land so acquired and vested in th e State Government, the competent authority may take possession of the vacant la nd by use of force as may be necessary for the purpose.

16. The competent authority after publication of the notice under Se ction 10(3) of the Act never issued any notice in writing either Late Bhabadeb Sarma and on his death to the appellants at any point of time directing him or t hem to surrender or deliver the possession of the vacant land in excess of ceili ng limit retained by them. Therefore, the possession of the appellants in respec t of land measuring 1B 4Ks 16Ls though a part of the entire vacant land in exces s of ceiling limit possession was always with them until their dispossession and therefore, on adoption of Repealing Act, 1999 the competent authority is to res tore that piece of land that was under the occupation of the appellants by virtu e of the provisions of Section 3(2) of the Repealing Act, 1999. Mr. Bhattacharje e further argued that after acquisition of the land the competent authority did not pay the compensation either to Late Bhabadeb Sarma, the predecessor-in-inter est of the appellants or to the appellants at any point of time and, therefore, restoration of the parcel of the land would not be subject to refund of the amou nt.

17. Appellants have not disputed the acquiring of ceiling surplus la nd of the predecessor-in-interest of the appellants Late Bhabadeb Sarma in the c eiling proceeding. Respondents also appear to have confined to the unilateral po ssession of the land taken over by the Revenue Authority on 7-12-1991. In suppor t of it respondents contended that when the land owner failed to hand over the p ossession of the land, the competent authority had not other option than to take possession unilaterally of the land on 7-12-1991. The respondents further conte nded that after publication of the notification under Section 10(3) of the Act p ossession of the land was taken over unilaterally. Allotment of part of the said land was subsequently made in favour of certain persons which ultimately gave r ise the Civil Rule No. 2568 of 1992. The learned Single Judge in view of decisio n in Civil Rule No. 2568 of 1992 which received finality after order dated 8-8-2 003 passed by the Apex Court in Paragraph- 10 and 11 of the impugned judgment h eld as under : (cid:28)10. A reading of the provisions contained in Section 10 of the Act makes it clear that in he notification required to be published under Section 10(1) of he Act, after clear identification of the surplus vacant land, which is sought to be acquired, (cid:28)persons interested (cid:29) are to be invited to file their claims to the vacant land in question. Thereafter, the claims, as may be filed are required to be settled and notice to hand over possession under Section 10(5) of the Act ma y be served on the person in possession. This appears to be order or scheme of a ction under the Act. In the present case, the owner of the land, i.e., predecess or of the petitioners had already filed his objections under Section 8(3) of the Act in respect of the draft statement issued, whereafter, the final statement u nder Section 9 was prepared. Admittedly, the predecessor of the petitioners did not file any claim to the land after publication of the notification under Secti on 10(1) of the Act - a fact, which has been recorded by this Court in its order dated 24-5-2002 passed in CR No. 2568/1992. In such a situation, the Court can not understand that any prejudice was caused to the owner of the land even if it is to be assumed that no notice under Section 10(5) of the Act was served, a co nclusion that the Court feels safe to draw from the use of the word ’May’ in Sec tion 10(5) of the Act. In any event, whether such a notice was issued or served on the predecessor of the petitioners is a seriously disputed question of fact i n view of the clear stand taken by the Respondents in the affidavit filed that t he predecessor of the petitioners not having handed over possession of the land, such possession was taken over unilaterally by the State.

11. There are certain other features of the case, which impel the Court to t ake a negative view with regard to the above contentions advanced by the petitio ners. The fact that allotment of a part of the surplus vacant land covered by th e land Ceiling Proceeding in question been found to be valid by this Court in he earlier proceeding is a significant fact that cannot be overlooked. Such allotm ent from the same surplus land, even if in part, tilts the balance on the questi on of possession against the petitioners. The correction of the revenue records, as evident from the extract copy of the revenue records, as evident from the ex tract copy of the jamabandi available on record, showing deletion of the name of late Bhabadeb Sarma as the recorded pattadar of the land in question and the fu rther endorsement showing such land as Government land, must also be construed b y the Court to be a relevant fact for deciding the question of possession in fav our of the State and against the petitioners. Viewed from the aforesaid context, the claimed possession of the petitioners through their caretaker, sanatan Bais hya, will hardly be relevant to judge their entitlements under the Repealing Act of 1999. The said Act, in the considered view of the Court, contemplates a cle ar abandonment of the rights of the State to take over possession of the surplus land that had vested in it under Section 10(3) of the Act rather than failure to continuously maintain such possession or combat attempts of re-possession or encroachment by the erstwhile owner or any other person. (cid:29)

18. We are unable to accede to the view of the learned Single Judge magnified in paragraph 10 of the impugned judgment in respect of taking over po ssession of the vacant land in excess of ceiling limit unilaterally. The learned Single Judge appears to have confined to the findings of this court arrived at Civil Rule No. 5268 of 1992. Admittedly the vacant land in excess of ceiling lim it belonged to Late Bhabadeb Sarma, the father of the appellants and the same wa s acquired by the State Government by notification under Section 10(1) of the Ac t, 1976. After acquisition under Section 10(1) of the Act, the State Government published a notification under Section 10(3) of the Act declaring deemed acquisi tion of the vacant land and vesting of the same in the State Government. It is on record that Late Bhabadeb Sarma sold some percels of the vacant land to six different persons by executing sale deeds in the year 1984 after publication of notification under Section 10(1) of the Act for which, perhaps Late Bhabadeb Sa rma despite his impleadment as proforma respondent in Civil Rule No. 2568 of 1992 did not raise any issue and for that notice under Section 10(5) of the Act can be waived, in our considered view is not an acceptable finding. Late Bhaba deb Sarma, predecessor-in-interest of the appellants even after vesting of the v acant land in the State Government by notification under Section 10(3) of the Ac t continued to remain in possession thereof and in that event the competent aut hority ought to have taken resort to the provisions of Section 10(5) of the Act. Since notice of this nature was never issued and served on the predecessor-in-i nterest of the appellants and after his death on the appellants either, unilater al possession claimed by the respondents cannot survive. Since Section 10(5) is mandatory in nature it ought to be followed by the competent authority when any person is found in possession of such land (ceiling surplus). The words (cid:28) any pe rson (cid:29) in our present case may be construed as predecessor-in-interest of the app ellants while alive and after his death the appellants, his legal heirs, who ha d the possession of the land measuring 1B 4Ks 16Ls, a part of the vacant land t hat vested in the State Government by virtue of notification 10(3) of the Act.

19. It is true that the allotment of parts of the surplus vacant la nd covered by land ceiling proceeding in question is found valid by this court i n earlier proceedings by way of Civil Rule No. 2568 of 1992 and Writ Appeal No. 419 of 2002. In paragraph 11 of the impugned judgment learned Single Judge in vi ew of the findings of this court in the earlier proceedings in respect of the su rplus vacant land and allotment thereto that such allotment from the said surplu s land even if in part goes against the appellants in respect of possession of t he vacant land in excess of ceiling surplus. Learned Single Judge also held that correction of revenue records as evident from the extract copy of the Jabanband i showing deletion of the name of Late Bhabadeb Sarma as the recorded pattadar o f the land in question and further endorsement showing such land as Government l and must be construed in favour of the respondents in respect of possession of t he vacant land. The leaned Single Judge did not accept the claimed possession of the appellants through their care taker Sanatan Baishya rather held that such p ossession would not entitle the appellants restoration in view of adoption of th e Repealing Act, 1999. It is already indicated that Late Bhabadeb Sarma after no tification under Section 10(3) of the Act was in possession of the land. Respond ents claimed that on account of failure on the part of the Late Bhabadeb Sarma t o surrender or deliver the possession of the land to the State Government or to any other officer duly authorized in that behalf, the SK one of the Revenue Offi cers of the Revenue Department took possession of the land on 7-12-1991 unilater ally and thereafter some parcels of the land were allotted to some persons by th e State Government. This unilateral action perhaps prompted the Revenue authorit y to delete the name of Late Bhabadeb Sarma from the Revenue records as recorded pattadar. Deletion of name of recorded pattadar from the Revenue records and en dorsing the land in question as Government land do not necessarily mean that rec orded pattadar was/is not in the possession of the land in question. Deletion of name of he recorded pattadar may occur on various factors. Facts remain that ti ll the date of dispossession, the appellants were in possession of the vacant la nd in excess of ceiling limit measuring 1B 4Ks 16Ls, a part of the surplus vacan t land covered by the land ceiling proceeding. In the counter affidavits it is n owhere provided that till 25-12-2003 the appellants were not in possession excep t the statement of taking over of the land unilaterally on 7-12-1991. Therefore, we are unable to hold the view of the learned Single Jude that the possession o f the ceiling surplus land is with the respondents.

20. Now, a question arises whether taking over of possession by the respondents on 7-12-1991 unilaterally would amount to taking over of possession under Section 10(6) of the Act in absence of proof of issuance of notice under S ection 10(5) of the Act. From a careful scrutiny of the counter affidavits filed by the respondents herein we are unable to locate any order or document to show issuance of notice under Section 10(5) of the Act to the appellants’ father Lat e Bhabadeb Sarma to deliver or surrender of the land so vested in the State Gove rnment. Therefore, the claim of the respondents that the predecessor-in-interest of the appellants refused to surrender or deliver possession of the land cannot sustain. Mr. A. K. Bhattacharjee, learned Sr. counsel taking the opportunity o f non existence of any order and notice made or issued under Section 10(5) of th e Act very strenuously argued that the possession of the land being with the app ellants, the legal heirs of Late Bhabadeb Sarma on the adoption of the Repealing Act, 1999 such land is to be restored to the owner by virtue of Section 3(2) of the Repealing Act, 1999. The claim of taking of unilateral possession by one of the Revenue officers of the respondents would not subsist unless after issuance of the notice the owner or any person in possession refuses to deliver or surre nder the possession of the land in question. In the counter affidavits the respo ndents also failed to make an averment that on refusal to surrender or handover possession of the land in question, possession of the land had been taken unilat erally by use of force except the statement made in paras 7(c) and 25 (cid:28)the recor ded pattadar did not come forward to deliver possession of the land (cid:29). The averm ents made in the counter affidavit in respect of taking over of the land in ques tion unilaterally appear to be plain and simple. Such statement is not supported by any document whatsoever.

21. It was submitted by Mr. A. K. Bhattacharjee, learned Sr. counsel that the word (cid:28)restoration (cid:29) contemplated under Section 3(2) of the Repeal Act i s of the ownership rights which are deemed to have been vested in the State unde r the Principal Act. It is open to the State to make compensation under Section 11 of the Act once the land is deemed to have vested under Section 10(3) even wh en the possession has not been surrendered or delivered or taken over under Sect ion 10(5) or 10(6) of the Principal Act. Provisions of Section 3(2) of the Repea ling Act, 1999 makes it manifestly clear to restore ownership of the surplus lan d deemed to have been vested in the State to the land holders/owners on refund o f the amount paid by the Government when possession has not been taken over unde r Section 10(5) and 10(6) of the Act. Mr. Bhattacharjee also further argued that the (cid:28)savings (cid:29) provisions in the Repeal Act, 1999 expressly are made applicable only to that land which satisfies under Section 10(3) and the possession of whic h has been taken over under Section 10(5) or 10(6) of the Principal Act. Indicat ing provisions of Clause (a) of Sub Section 2 of Section 3 of the Repeal Act, 19 99, Mr. Bhattacharjee laid stress that the repeal of the Principal Act shall not effect vesting of any vacant land under Sub Section 3 of Section 10 possession of which has been taken over by the State Government or person duly authorized b y the State Government in this behalf or by the competent authority, but when an y land deemed to have been vested in the State Government under Section 10(3) of the principal Act but possession has not been taken over by the Government or a ny person duly authorized by the State Government in this behalf or by the compe tent authority such land should be restored subject to refund of the compensati on if paid by the Government. According to Mr. Bhattacharjee, the learned Sr. co unsel the competent authority or any person at no point of time did take over t he possession of the land by issuing a notice under Section 10(5) of the Princi pal Act and in defiance thereto under Section 10(6) of the Act. Therefore, the l and though vested in the State Government, the possession being remained with th e owner in other words not taken by the State Government or any person duly auth orized by the State Government or by the competent authority, such land needs to be restored to the person subject to refund of the amount. Much stress had been laid by Mr. Bhattacharjee, learned Sr. counsel in the words (cid:28)possession of whic h has not been taken over by the Government or any person duly authorized by the State government in this behalf or by the competent authority (cid:29) since according to him the State Government or the competent authority failed to resort to the p rovision of Section 10(5) of the Principal Act. Mr. Bhatttacharjee, therefore, i n view of vesting of the land in the State Government by notification under Sect ion 10(3) of the Act, inaction on the part of the State Government or its compet ent authority to take action per provision of Section 10(5) of the Act and the p ossession of the land being continued to remain with the appellants till disposs ession, appellants are entitled to restoration at least the parcel of the land w hich was under their active possession till 25-12-2003. Further in regard to unilateral taking over of possession on 7-1 22. 2-1991 as claimed by the respondents, it was argued by Mr. Bhattacharjee, learne d Sr. counsel that such taking over of possession cannot forclose the right of t he appellants under Section 3(2) (a) of the Repealing Act since possession was a llegedly taken over without following the procedure under Section 10(5) of the A ct and more so by an Officer not authorized in that behalf. Such unilateral taki ng of possession according to Mr. Bhattacharjee is illegal and unlawful. No docu ment thus finds place in any of the counter affidavits filed by the respondents authorizing the S.K. to take over possession on 7-12-1991. Referring to the prov isions of Section 10(6) of the Principal Act, Mr. Bhattacharjee submitted that t o act under that provision the person must be duly authorized by the State Gover nment for the purpose, who may in taking possession of the vacant land use force if necessary. Therefore, in order to take recourse to this provision there must be a refusal on the part person in possession to surrender or deliver the posse ssion of the land in question. Refusal or failure on the part of the land holder /owner would only come into play when a notice under Sub Section 5 of Section 10 is issued. According to Mr. Bhattacharjee when the factum of issuance of notice under Section 10(5) of the Act and refusal thereto has not been proved by the r espondents by placing acceptable proof, unilateral taking over of possession of the land in question by the S.K under garb of sub Section 6 of Section 10 of the Principal Act would be illegal and unlawful and consequently appellants would b e entitled to the benefit of the Repealing Act. In support of his contention Mr. Bhahhacharjee placed reliance in the decision in the case between Bharatkumar L albhai Vasa Vrs. State of Gujarat; reported in 2006 (TLS) 217024. 23. In the case of M/s. B.T.L Education Trust, Bangalore Vrs. The St ate of Karnataka & Others (AIR 2006 Karnataka 12), a Division Bench of the Court in the context of application of Section 3 of the Repeal Act, 1999 in Paragraph -12 held as under: If a declarant was in lawful possession of a land at the time when the R (cid:28)12. epeal Act came into force, the proceeding s initiated under the Act against him would abate by virtue of the provisions of sub-section (2) of Section 3 of the R epeal Act. In the instant case, there is abundant relevant materials on record t o conclude that when the Repeal Act came into force, the respondents 4 to 8 wher e in actual and lawful possession of the subject land. Even according to the sec ond respondent, though after the Notification under Sub-section (3) of Section 1 0 of the Act was issued and late Buda Reddy was directed to deliver possession o f the subject land within 30 days from the date of receipt of the notice, the re cords maintained by the second respondent competent authority would not show tha t as a matter of fact, the possession of the subject land was taken over by the competent authority and the same vested in the State Government. In fact, the ab ove finding recorded by the second respondent in h is order dated 28th February 2002 directly contest the correctness of the statement made by the Special Depu ty Commissioner earlier that the possession of the subject land was taken over o n 21-10-1988. The Deputy Commissioner in the same order 28th February 2002 havin g referred to the report of the Tahsildar, Bangalore south Taluk dated 13-6-2001 , has recorded the finding that there is nothing on record to show that the poss ession of the subject land was handed over by respondents 4 to 8 to Government p ursuant to the proceedings initiated by the competent authority under the Act in terms of Section 10 of the Act nor is there any evidence to show that the Gover nment has taken over possession of the subject land from respondents 4 to 8. How ever, we need not rest our opinion only on the above findings recorded by the se cond respondent Deputy Commissioner in his order dated 28th February 2002.There are other independent materials also to reach the same conclusion. Although earl ier the special Deputy Commissioner for Urban Land Ceiling had claimed that the possession of the subject land was taken over on 21-10-1988, that claim seems to be highly incredible. We say this, because, Budda Reddy died on 21-8-1988. Ther efore, taking over the possession of the subject land from a dead person on 21-1 0-1988 would not have arisen. It is not the case of the competent authority that before taking over possession of the subject land on 21-10-1988, notices were i ssued to the respondents 4 to 8 herein and possession of the subject land was ta ken over from them. The second circumstances which goes in favour of respondents 4 to 8 is the entries in the Record of Rights and Phahanis of the subject land. In the RTC extracts produced at page 98 of the material papers, the name of Bud da Reddy is shown both in Column No. 9 as well as in Column No. 12 for the reven ue years 1997-98 and 1998-99. It is true that well before the above revenue year s commenced. Budda Reddy had died, but, the fact remains that if the possession of the subject land was taken over on 21-10-1988 itself by the competent authori ty as claimed, the name of Budda Reddy o r his so ns would not have appeared in the Record of Rights and Phahanis of the subject land subsequent to the revenue year 1988-89. The third circumstance is the house tax paid receipts produced at pages 114-123 of the material papers. These house tax paid receipts would also g o to show that the respondents 4 to 8 were in possession of the subject land bef ore and after the Repeal Act came into force. Thus, it is quite clear that not o nly the findings recorded by the second respondent in his order dated 28th Febru ary 2002 but also the above noted documents would fully support the claim of the respondents 4 to 8 that they were in lawful possession of the subject land when the repeal Act came into force. In addition, in pursuance of the order of the S upreme Court in Civil Appeal No. 3011 of 1995, the possession of the subject lan d was restored to the respondents 4 to 8 on 6-8-1998, that is to say, well befor e the Repeal Act came into with effect from 8-7-1999. Further-more, it needs to be noticed that in paragraph-5 of the statement of objections filed on behalf of the respondents 1 to 3 in W. P. No. 19739 of 2002, it is stated that all the pr oceedings with regard to handing over of the possession of the subject land to t he appellant Trust was only on paper and no physical possession of the subject l and was handed over to the appellant Trust. The Tahsildar, Bangalore South Taluk who inspected the subject land on 2-6-2001 along with field staff and the surve yor has reported that the land owners, i.e. respondents 4 to 8 were in physical possession of the subject land. The piece of evidence noticed fully support the claim of the respondents 4 to 8 that they were in actual and lawful possession o f the subject land when the Repeal Act came into force. If that is so, the proce edings initiated and orders made under the Act abated when the Repeal Act came i nto force. (cid:29) In our present case the pleaded case of the appellants is that e ven after publication of the notification under Section 10(1) and 10(3) of the Act, 1976 they continued to remain in possession of a parcel of the vacant land so acquired and vested in the State Government at least measuring 1B 4Ks 16 Ls. The appellants while possessing the parcel of the land as indicated above obtain ed electricity connection to the premises thereon, installed a PCO obtaining per mission from the postal department and also obtained permission from GMC to run a restaurant/tea stall in the premises by caretaker Sanatan Baishya. These facts according to appellants conjointly testify that land measuring 1B 4Ks 16Ls, a p arcel of the vacant land is in the possession of the appellants. Possession of t hat parcel of the land being not taken over by the State Government or by any pe rson authorized in this behalf or the competent authority under provisions of Se ction 10(5) of the Act in defiance thereto under Section 10(6) of the Act, such possession being remained with the appellants on the date of adoption of the Rep eal Act, 1999 by the State Government, by virtue of Section 3(2)(a) of the Repea ling Act, 1999, such land in possession of the appellants requires restoration t o the appellants subject to refund of the amount if paid. It is not the case of the respondents that Late Bhabadeb Sarma, the father of the appellants during hi s life time did receive the compensation for the acquired land that vested in th e State Government and after his death by the appellants, therefore, refund of c ompensation on restoration of the land to the appellants cannot arise. Further t he eviction proceeding started against the appellants under Rule 18(2) of the Ru les under Land and Revenue Regulation and their ultimate dispossession therefrom on 25-12-2003 would also testify that the appellants were in possession of the land (1B 4Ks 16Ls) a part of the vacant land so vested in the State Government o n the date of adoption of the Repeal Act, 1999 and thereafter.

24. In the context of failure to adhere to the provisions of Section 10(5) of the Principal Act and its effect thereto, Mr. A. k. Bhattacharjee, rel ied in the judgment rendered by a Division Bench of the Bombay High Court in Wri t Petition No. 8356 of 2006 in between Voltas Ltd. and another Vrs. Additional C ollector and Competent Authority, Thane Urban Agglomeration and Others. The Divi sion Bench of the Bombay High Court while rendering the judgment in the case con sistently held that failure on the part of the competent authority to take resor t to provision of Section 10(5) of the Principal Act would render the Government in which the land vested under Section 10(3) of the Act to act per provision of Section 3(2)(a)(b) of the Repealing Act, 1999.

25. In the case of M/s. Raico Pvt. Ltd. Vrs. Competent Authority and others; reported in 2003 AIHC 657, a learned Single Judge of the Delhi High Cou rt in the context of provisions of Section 10 of the Principal Act, 1976 and Se ction 3 of the Repealing Act, 1999 in paragraph 10 held as under: On perusal of Annexure-R1 to CM No. 1024/87, and Annexure-R4 to the cou (cid:28)10. nter affidavit being the same document it shows that this site plan duly signed was the sole document relied upon to show that the possession has been taken o ver on 20-1-1987. The said document is signed by the Junior Engineer and the off icial of PWD Department in take over possession and by Shri K.L.Chugh of Land & Building Department of having handed over the possession. However, the submissio n in the application that the same was done in the presence of the representativ es of the petitioner, is not borne out from the said document. Interestingly, pa ra 6 of the application, as originally typed out, had an averment that the posse ssion was taken over on 20-1-1987 (cid:28)from the representative of the petitioner (cid:29) bu t the same was scored out. This aspect shows that no possession was taken over f rom any representatives of the petitioner. The handing over and taking over of p ossession requires one party to hand over possession and the other to take over possession. The respondent department merely by exchanging documents between the mselves cannot hand over and take over possession. (cid:29)

26. ****** In any view of the matter, it is apparent that the State Gover The Hon’ble Single Judge of the Gujarat High Court while dealing with the case between Laxmanbhai K. Chokshi Vs. Competent Authority and Additio nal Collector(U.L.C) ; reported in 2007-GLR-3-2231, 2007(TLS) 218561 in the cont ext of requirement of notice under Section 10(5) of the Principal Act in Paragra ph-5 held as follows: (cid:28)5. nment has not taken over the possession of the said land in accordance with Sec . 10(5) of the Act Sub Section (5) of Sec. 10 of the Act enjoins the competent a uthority, by notice in writing, to order any person who may be in possession of the vacant land to surrender or deliver possession thereof to the State Governm ent. Thus, it is person who is in possession of the land is entitled to a notice in writing. In the present case, admittedly the notice, as envisaged by Sub-sec . (5) of Sec. 10 of the Act, was given to the holder of the land alone and not t o the persons in possession. The action of the State Government in taking over p ossession of the said excess vacant land unilaterally, contrary to the aforesaid sub-sec. (5) of Sec. 10 of the Act, was illegal. I am, therefore, of the opinio n that the State Government cannot be said to have legally taken over possession of the said excess vacant land. The possession of the said excess vacant land t hus continued with the petitioner. The Act of 1999 is made effective in the Stat e of Gujarat on 30th March, 1999. In view of Sec. 4 of the Act of 1999 the proce eding in respect of the said excess vacant land shall stand abated. (cid:29) ****** The Repeal Act shall have no effect on the Principal Act if posse A similar view was adopted by a Division Bench of the Allahabad 27. High Court while deciding the case in between Kailash Vrs. State of U. P; report ed in 2005 (TLS) 316957. In paragraph 5 and 6, the Division Bench held as under: (cid:28)5. ssion of surplus land was not taken as contemplated in the Principal Act. Repeal Act, clearly talks possession being taken under Section 10(5) or 10(6) of the A ct. It is a statutory obligation on the competent Authority or State to take pos session as permitted in law. It is to be appreciated that in case possession is purported to be taken under Section 10(6) of the Act, still Court is required to examine whether ’taking of such possession’ is valid or invalidated on any of t he considerations in law. If Court finds that one or more grounds exist which sh ow that the process of possession, though claimed under Section 10(5) or 10(6) o f the Act is unlawful or vitiated in law, then such possession will have no rec ognition in law and it will have to be ignored and treated as of no legal conseq uence. The possession envisaged under Section 3 of the Repeal Act is de facto an d not de jure only.

6. EVEN thereafter we wanted to verify the truth of actual physical possess ion and appointed a member of the bar as special officer to visit the spot and p lace a report before the Court under sealed cover. Such report categorically spe aks that no actual physical possession has been taken by the State. A fake defen ce has been taken by the State that at the time of inspection no one was present on behalf of the State. But we find from the earlier order of the Court that in presence of all the parties when the order was passed, it was made clear that n o further notice will be given but all will be present at the time of making ins pection of the spot by the Special Officer. Under the order dated 18th July, 200 5, date and time were fixed by this court. After opening the sealed cover and go ing through the report we have directed to circulate the report to give further opportunity to the parties to take appropriate step including exception to the r eport but State has not made any application taking exception to the report. The y have relied upon their own record to establish the cause under Section 10(5) o f the Urban Land (Ceiling and Regulation) Act, 1976. The law under Section 10(5) of the Act is crystal clear that notice in writing is to be given to surrender or deliver the possession and if any body refuses or fails to comply, the autho rity may take possession of the vacant land under Section 10(6) of the Act. From the record we find that only a notice under Sub-Section (5) was received by one (cid:28)bachchan Lal (cid:29). According to the petitioners he has no authority to receive the notice. Even if a co-sharer cannot affect the right of the others in receiving such notice. In any event notice under the principal Act upon one (cid:28)bachchan Lal (cid:29) cannot help the cause of the respondents at present. (cid:29)

28. Mr. A. K. Bhattacharjee, learned Sr. Counsel also placed relianc e in the decision in the case between Indrajitsing P Geel Vrs. Competent Authori ty and Deputy Collector; reported in 2007-GLR-1-677, 2006(TLS) 217018, the learn ed Single Judge of the Gujarat High Court in respect of necessity of issue of no tice under Section 10(5) of the Principal Act, 1976, in paragraphs 22, 23 and 26 held as under : ON a plain reading of the aforesaid provisions, it is apparent that the (cid:28)22. statute contemplates giving an opportunity to the landholder of any person in po ssession of excess vacant land to surrender or deliver possess thereof to the S tate Government and for this purpose provides for giving notice in writing, orde ring such person to surrender or deliver possession of such lands. It is only wh en 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) are to be resorted to only when there is refusal or non comp liance of an order under sub-section (5) of section 10 of the Act within the pre scribed period. AS can be seen from the facts noted above, though it is the case of the 23. respondents that the petitioner has been duly served with notice under section 1 0 (5) of the Act, no supporting document has been produced to show that service of notice has been duly effected. For the purpose of verifying the correctness o f the aforesaid averments made by the competent authority, the learned Assistant Government Pleader had been directed to call for the record of the case from th e competent authority. Upon perusal of the record, it is apparent that though at every stage of the proceeding notices issued to the petitioner have been served by Registered post Acknowledgment Due and the Acknowledgment receipts thereof a re also found on record. But, insofar as notice under Section 10(5) of the Act i s concerned no such receipt is found on record. Hence, in absence of proof of se rvice of notice, it cannot be said that the requirements of section 10(5) of the Act have been complied with.

26. THUS, applying the principle of strict construction with the dictum of t he aforesaid decision, the authorities are required to act strictly in accordanc e with the statutory provisions. Thus, when sub-section (5) of section 10 mandat es giving notice of an order under the said sub-section to the person in possess ion, the same is required to be complied with in true letter and spirit. Conside ring the nature of rights involved, mere issuance of notice without service ther eof, cannot be said to be due compliance with the provisions of the statute. Bes ides, the provisions of sub-section (6) of section 10 can be resorted to only if the person fails comply with an order under sub-section (5) thereof, within a p eriod of thirty days of service of notice. Hence, possession cannot be taken ove r under section 10(6) of the Act, unless a period thirty days from the date of s ervice 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, will not arise at all. In this view of the matter, it was not open to the respondent auth orities to resort to the provisions of sub-section (6) of section 10 of the Act without first complying with the provisions of sub-section (5) thereof. Hence, s uch action being in contravention of the statutory provisions cannot be sustaine d and deserves to be struck down. In the cases (supra) it would appear that the provisions of Sect 29. ion 10(5) of the Principal Act, 1976 shall have to be mandatorily followed by th e State Government or its competent Authority when the vacant land in excess of ceiling surplus vests in the State Government by notification under Section 10(3 ) of the Act. Provisions of Section 10(6) would come into play only when the per son in possession of the ceiling surplus land refuses or fails to deliver or sur render possessi