M/s A.P. Electrical Equipment Corporation vs The Tahsildar & Ors. Etc.

Urban Land (Ceiling and Regulation) Act, 1976 – Sub-section (5) of section 10 and sub-section (6) of section 10 – Statute contemplates:

Held: On a plain reading of the sub-section (5) of section 10 and sub-section (6) of section 10, 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) are to be resorted to only when there is refusal or non-compliance of an order under sub-section (5) of Section 10 of the Act, 1976 within the prescribed period. [Para 22]

Urban Land (Ceiling and Regulation) Act, 1976 – Possession of subject land – Paper possession:

Held: The dictum, as laid in Hari Ram case, 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. [Para 29]

Precedent – Two inconsistent decision of Supreme Court – The High Court to reconcile and respect both:

Held: 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. [Para 35] Urban Land (Ceiling and Regulation) Repeal Act, 1999 – Effect of:

Held: The effect of Repeal Act, 1999 is clear – If the landowner remains in physical possession, then irrespective of his land being declared surplus and/or entry being made in favour of the State in revenue records, he will not be divested of his rights – Even if compensation is received that also will not dis-entitle him to claim the benefit if compensation is refunded, provided he is in actual physical possession – Payment of compensation has no co-relation with the taking of actual physical possession as with the vesting land compensation becomes payable which can be paid without taking actual physical possession. [Para 40]

Urban Land (Ceiling and Regulation) Act, 1976 – Urban Land (Ceiling and Regulation) Repeal Act, 1999 – The propositions of law governing the issue of possession in context with ss. 10(5) and 10(6) respectively of the Act, 1976 r/w. s.3 of the Repeal Act – Summed up:

Held: (1) The Repeal Act, 1999 clearly talks about the possession being taken u/s.10(5) or s.10(6) of the Act, 1976, as the case may be;

(2) It is a statutory obligation on the part of the competent authority or the State to take possession strictly as permitted in law;

(3) In case the possession is purported to have been taken u/s.10(6) of the Act, 1976 the Court is still obliged to look into whether “taking of such possession” is valid or invalidated on any of the considerations in law; (4) The possession envisaged u/s.3 of the Repeal Act, 1999 is de facto and not de jure only; (5) The mere vesting of “land declared surplus” under the Act without resuming “de facto possession” is of no consequence and the land holder is entitled to the benefit of the Repeal Act, 1999; (6) The requirement of giving notice under sub-sections (5) and (6) of s.10 respectively is mandatory – Although the word “may” has been used therein, yet the word “may” in both the sub-sections should be understood as “shall” because a Court is obliged to decide the consequences that the legislature intended to follow from the failure to implement the requirement; (7) The mere vesting of the land under sub-section (3) of s.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;

(8) The State has to establish by cogent evidence on record that there has been a voluntary surrender of vacant land or surrender and delivery of peaceful possession under sub-section (6) of s.10 or forceful dispossession under sub-section (6) of s.10. [Para 41] Appeal – Intra-Court Appeal – Scope of:

Held: An intra-court appeal is really not a statutory appeal preferred against the judgment and order of an inferior to the superior Court – 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 appeal, in general, an intra court appeal is an appeal on principle and that is why, unlike an appeal, in an ordinary sense, such as a criminal appeal, where the whole evidence on record is examined afresh by the appellate court, what is really examined, in an intra court appeal, is the legality and validity of a judgment and/or order of the Single Judge and it can be set aside or should be set aside only when there is a patent error on the face of the record or the judgment is against the established or settled principles of law – If two views are possible and a view, which is reasonable and logical has been adopted by a Single Judge, the other view howsoever appealing may be to the Division Bench, it is the view adopted by the Single Judge, which should, normally, by allowed to prevail. [Para 42]

Jurisdiction – Writ Jurisdiction – Power of writ Court to determine disputed question of fact:

Held: The disputed questions of fact are not investigated or adjudicated by a writ court while exercising powers under Article 226 of the Constitution of India – But the mere existence of the disputed question of fact, by itself, does not take away the jurisdiction of this writ court in granting appropriate relief to the petitioner – In a case where the Court is satisfied, like the one on hand, that the facts are disputed by the State merely to create a ground for the rejection of the writ petition on the ground of disputed questions of fact, it is the duty of the writ court to reject such contention and to investigate the disputed facts and record its finding if the particular facts of the case, like the one at hand, was required in the interest of justice – There is nothing in Article 226 of the Constitution to indicate that the High Court in the proceedings, like the one on hand, is debarred from holding such an inquiry – The proposition that a petition under Article 226 must be rejected simply on the ground that it cannot be decided without determining the disputed question of fact is not warranted 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. [Paras 48, 49]

Urban Land (Ceiling and Regulation) Act, 1976 – Sub-section (5) of s.10 and sub-section (6) of s.10 – Whether actual physical possession of excess land is a mixed question of law and fact: Held: The issue as regards taking over of the actual physical possession of the excess land in accordance with the provisions of sub-sections (5) and (6) of s.10 of the Act, 1976 could be said to be a mixed question of law and fact and not just a question of fact – Mixed question of law and fact refers to a question which depends on both law and fact for its solution – In resolving a mixed question of law and fact, a reviewing court must adjudicate the facts of the case and decide relevant legal issues at the same time. [Para 54]