Urban Land (Ceiling and Regulation) Repeal Act, 1999 – ss.
3 and 4 – Applicability of – Land acquisition proceedings under Urban Land (Ceiling and Regulation) Act 1976 – Land in question was declared as access vacant land by Competent Authority as well as Appellate authority – Writ Petition against the orders of the authorities was dismissed for non-prosecution – Restoration application dismissed observing that fresh petition might be filed, if permissible – The fresh writ petition High Court by interim order directed that the authorities might take over the possession of the vacant surplus land – The State took the stand that possession of the surplus land had already been taken over on 25.04.1988 – However, the High Court allowed the petition on the ground that the 1976 Act had been repealed and the compensation for surplus land had not been paid – The State filed appeal before the Supreme Court – Held: Before declaring the proceedings as having abated in view of ss. 3 and 4 of 1999 Act, it has to be considered and decided whether possession of the surplus land has been taken over by the Government – In absence of such possession, the proceedings cannot be declared as having abated – In the impugned judgment High Court has failed to consider and has not given any specific finding on the aspect of possession – Failure to pay the compensation, cannot raise presumption as to failure of possession – Matter remanded to High Court to decide the same afresh – High Court is also directed to consider the maintainability of the fresh writ petition as the previous writ petition was dismissed for nonprosecution. Allowing the appeal, the Court
HELD: 1. The impugned judgment and order passed by the High Court is unsustainable in law as well as on facts. It cannot be disputed that in the impugned judgment and order the High Court has not at all considered the merits of the case and has quashed and set aside the order passed by the Competent Authority dated 01.03.1984 and the order passed by the First Appellate Court – Board of Revenue dated 05.05.1987 solely on the ground that the Act, 1976 has been repealed and that the compensation for the surplus land has not been paid. The High Court has noted that in the resolution adopting the Repeal Act, 1999, it has been declared that no compensation should be paid for lands, possession of which has not been taken over by the State Government after vesting under Section 10(3) of the Act, 1976 and the legal process initiated under the said Act will also be closed. [Para 4][1112-B-E]
2. The High Court has not at all properly appreciated and considered Sections 3 and 4 of the Repeal Act, 1999. A fair reading of Sections 3 and 4 of the Repeal Act, 1999 makes it clear that all proceedings relating to any order made or purported to be made under the principal Act (Act, 1976) pending immediately before the commencement of the Repeal Act, 1999, before any court, tribunal or other authority shall abate. Section 4 of the Repeal Act shall not apply provided possession of land 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. Therefore, if the possession of the surplus land/land 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, in that case, the proceedings relating to any order made under the principal Act, 1976 shall not abate, meaning thereby that the Repeal Act, 1999 shall not affect all those proceedings with respect to the land of which the possession has been taken over. Therefore, before declaring the proceedings as having abated in view of Sections 3 and 4 of the Repeal Act, 1999, it has to be considered and decided whether possession of the surplus land/land 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 or not. If it is found and held that the possession of the surplus land has been taken over, in that case, the proceedings shall not be declared as having been abated. [Paras 4.1 and 4.2][1112-F-G; 1113-F-H; 1114-A-C]
3. In the present case, in the impugned judgment and order, the Division Bench of the High Court has not at all considered and/or given any specific findings on the possession being taken over by the Tehsildar on 25.04.1988. There is no discussion at all on the aspect whether the possession taken over by the Tehsildar. It appears that solely on the ground that the payment of compensation has not been made and ad interim order was operating, the High Court has quashed and set aside the orders passed by the Competent Authority as well as the First Appellate Court. However, the High Court has not properly appreciated and considered the fact that the payment of compensation has nothing to do with the taking over of possession. Payment of compensation under the Act, 1976 and taking over the possession after the notification issued under Section 10(3)/10(5) of the Act, 1976, both are different and distinct. Even assuming that the compensation has not been paid, in that case also, it cannot be presumed that the possession was not taken over. [Paras 4.3 and 4.4][1114-C-E]
4. The Division Bench of the High Court has also misread and misinterpreted the resolution/notification dated 24.07.2002. As per the said clarification dated 24.07.2002 no compensation should be paid for land, possession of which has not been taken over by the Government after vesting u/s. 10(3) of the Urban Land (Ceiling & Regulation) Act, 1976 and the legal process initiated under the said Act is also to be closed. As per clause (ii) where the possession of the land has been taken over and the compensation has not been paid or partly paid, steps should be taken for payment of compensation. Therefore, even as per the said clarification dated 24.07.2002, where the possession of the land has been taken over and the compensation has not been paid or party paid, the steps were required to be taken for payment of compensation. It does not speak and/or clarify that if the compensation is not paid, the possession is presumed to be not taken and/or the legal process initiated under the Act, 1976 will be closed. The High Court has misread and misinterpreted the clarification notification dated 24.07.2002 and even the resolution dated 05.04.2002. [Paras 4.4 and 4.5][1114-F; 1115-B-E]
5. Even the Division Bench of the High Court has also not considered the interim order dated 10.06.1994 in its true spirit. In the ex parte ad interim order dated 10.06.1994, the High Court has ordered that the authorities may take over possession of the vacant surplus land but will not change the nature or character of the land until further orders from the court. The interim order, as worded, is not conclusive proof either way on the question of possession. [Para 4.6][1115-F-G]
6. Even in the impugned judgment and order, the Division Bench of the High Court has observed that since the Act, 1976 has been repealed, the land belonging to the original writ petitioners shall be given back to them. Meaning thereby, it can be said that even according to the High Court also the possession of the surplus land was not with the original writ petitioners. Whereas, this observation is not a finding on whether possession was taken. Be that as it may, as the High Court has not at all dealt with the petition on merits, the impugned judgment and order passed by the High Court cannot be sustained and the same deserves to be quashed and set aside and the writ petition has to be remanded to the High Court to decide the same afresh. The question whether possession was taken over being primordial must be examined with acuity and thoroughly. [Para 4.7][1116-A-D]
7. The High Court is also to consider submissions on behalf of the State on the maintainability of the subsequent writ petition, as the earlier writ petition being OJC No.2550 of 1987 was dismissed for non-prosecution in which also the order passed by the Competent Authority dated 01.03.1984 and the order passed by the Board of Revenue dated 05.05.1987 were under challenge, which were also the subject matter of the subsequent writ petition being OJC No.4048 of 1994. The High Court is also to consider the observations made by the High court in the order passed in restoration application being M.J.C. No.10 of 1994 filed for restoring the OJC No.2550 of 1987 by which the High Court dismissed the restoration application with observation that the original writ petitioner may file a fresh petition, if permissible. Therefore, the Division Bench of the High Court has also to interpret and consider the expression “if permissible”. [Para 5][1116-F-H; 1117-A]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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