GJANAN KAMLYA PATIL vs. ADDL.COLLECTOR & COMP.AUTH.(ULC)

1 REPORTABLE IN THE SUPREME COURT OF INDIA

Gajanan Kamlya Patil .. Appellant Versus Addl. Collector & Comp. Auth. & Ors. .. Respondents WITH CIVIL APPEAL NOS. 2070-2071 OF 2014 [Arising out of SLP (C) Nos.14904-14905 of 2011) J U D G M E N T JUDGMENT K. S. RADHAKRISHNAN, J. 1. Leave granted. 2. We are, in these appeals, concerned with the question whether the High Court was justified in relegating the parties to file Civil Suits to recover the Page 1 2 lands covered by Survey No.54/4 and Survey No.53/3, both admeasuring 1870 sq. meters, situated at Village

Regulation) Repeal Act, 1999. 3. We may, for the disposal of these appeals, refer to the facts in Civil Appeal arising out of Special Leave Petition No.14690 of 2011, treating the same as the leading case. The Appellant herein was issued a notice dated 17.2.2005 under Section 10(5) of the Urban Land (Ceiling and Regulation) Act, 1976 (for short ‘ULC Act’) for taking possession of the Appellant’s land bearing Survey JUDGMENT Nos.47/10 and 54/4. It was stated in the notice that in accordance with the notification published in Part-I, Page No. – Konkan Division Supplementary, dated 12.12.2002, in the Gazette of Maharashtra, the land notified had been vested in the Government of Maharashtra and that Additional Collector and Competent Authority, Thane (for short “Competent Authority”), had been authorized by the Page 2 3 State Government to take possession of the land in question, details of which had been published in the

of receipt of the notice. Further, it was also intimated that if the Appellant had failed to give possession of the land, necessary action would be taken for taking possession by application of necessary force. 4. The Appellant, aggrieved by the above-mentioned notice, filed Writ Petition No.1669 of 2010 before the Bombay High Court to quash the notice dated 17.2.2005 and also for a declaration, inter alia, that the land JUDGMENT bearing Survey No.54/4 admeasuring 1870 sq. meters is in the physical possession of the Appellant and would continue to vest as such with the Appellant as true and actual owner thereof. The Appellant also sought a declaration that in view of the Urban Land (Ceiling and Regulation) Repeal Act, 1999, the proposed action of the Respondents or State or its authorities for taking Page 3 4 possession of the land be declared as null and void and also prayed for other consequential reliefs.

(Ceiling and Regulation) Repeal Act, 1999, and also taking note of the affidavit filed by the State Government and by the Mumbai Metropolitan Region Development Authority (MMRDA) noticed that so far as Survey No.47/10 is concerned, the possession had not been taken over by MMRDA. However, as far as land in Survey No.54/4 was concerned, after noticing that possession had been taken over, the High Court disposed JUDGMENT of the Petition granting relief to the Appellant in respect of Survey no.47/10, but so far as Survey No.54/4 is concerned, as already indicated, the Appellant was granted liberty to move the Civil Court for establishing his claim over the property in question. Page 4 5 6. Shri Shekhar Naphade, learned senior counsel appearing for the Appellant, submitted that the issue

280 and that the High Court has committed a grave error in holding that the MMRDA is in possession of the land in Survey No.54/4 and hence the question as to whether possession had been legally taken or not has to be decided by the Civil Court. Learned senior counsel also submitted that the State of Maharashtra has adopted the Repeal Act, 1999 on 1.12.2007 and that Respondent No.1 had executed the possession receipt in favour of Respondent No.3 on 2.7.2008 behind the back of the JUDGMENT Appellant, without following the due process of law. Learned senior counsel submitted that since possession had not been taken in accordance with law, the Appellant is entitled to the benefit of the Repeal Act, 1999, as was rightly held in respect of Survey No.47/10. Page 5 6 7. Shri A.S. Bhasme, learned counsel appearing for the Respondents, on the other hand contended that the High

disputed question of fact, the same cannot be decided by the High Court under Section 226 of the Constitution of India and the only remedy available to the Appellant is to file a Civil Suit to establish his right since the dispute is of a civil nature. Learned counsel, therefore, prayed for dismissal of the appeal. 8. We may, at the outset, point out that almost all the legal issues urged before us stand covered by the JUDGMENT judgment of the this Court in Hari Ram (supra). However, reference to few facts is necessary for the disposal of these appeals. The Competent Authority published a notification dated 17.1.2000 under Section 10(1) of the ULC Act in the Gazette of Government of Maharashtra on 15.6.2000, wherein the land held by the Appellant was shown as the land to be acquired by the Page 6 7 Government of Maharashtra. Following that, a notification dated 14.3.2000 under Sub-Section (3) of

covered and the land in Survey No.54/4 as well would be considered to be acquired by the Government of Maharashtra w.e.f. 15.6.2000 and the said land would be vested with the Government of Maharashtra from the said date. 9. The Competent Authority then issued yet another notification dated 2.8.2002 for information of the public that the land described in the schedule therein which JUDGMENT included the land in Survey No.54/4 as well, have been considered to be acquired by the Government of Maharashtra w.e.f. 15.9.2002 and the said land would be vested for all purposes free from all charges to the Government of Maharashtra from the said date. The Competent Authority, as already indicated, issued a show cause notice dated 17.2.2005 under Sub-Section (5) of Page 7 8 Section 10 of the ULC Act to the Appellant to hand over possession of the land in question within 30 days from

the land, necessary action would be taken for taking possession by the application of necessary force. 10. We may indicate that all the above-mentioned proceedings were initiated under the ULC Act, 1976, but the said Act was repealed by the Parliament by the Urban Land (Ceiling and Regulation) Repeal Act, 1999 on 22.3.1999 which came into force w.e.f. 11.1.1999. The State of Maharashtra vide its notification dated JUDGMENT 1.12.2007 adopted the Repeal Act, 1999 w.e.f. 1.12.2007. After adoption of the Repeal Act, 1999, on 1.12.2007, the Circle Office Balkum, Taluka & District Thane, executed “possession receipt” on 2.7.2008 of the land bearing Survey No.54/4 belonging to the Appellant in favour of the Chief Surveyor of MMRDA, pursuant to the orders of the Collector, Thane dated 1.7.2008. No notice, Page 8 9 admittedly, was given to the Appellants before executing the possession receipt. In this case, an additional

like Panchanama or possession receipt in respect of the land covered by Survey No.54/4 and few other Survey numbers. The operative portion of the affidavit reads as follows :- “I have stated in my affidavit in reply dated 20.3.2010 that on 2.7.2008 the Circle Officer has delivered the possession of the land bearing Survey No.103/3 area 3890 sq. mtrs., 3/10 area 3600 sq. mtrs., 98/6 area 1708 sq. mtrs., 53/3 area 2450 sq. mtrs., 54/4 area 1870 sq. mtrs to the MMRDA. I state that I have inspected my record, however, I could not find any document like panchanama or possession receipt in respect of aforesaid lands by which its possession was obtained from the land holder under Urban Land Ceiling Act.” JUDGMENT 11. We have another affidavit dated 2.7.2010 by the Principal Secretary, Urban Development Department, Government of Maharashtra, wherein he has categorically stated that the possession had not been Page 9 10 handed over by the landowner to the Competent Authority. The operative portion of the same reads as under :-

The Affidavit also further reads as under :- “Therefore, Government was under impression that since the land has been vested into the Government as per the notification under Section 10(3) dated 02.08.2002, the Government has every right to use the said land for public purpose. I say that, in the aforesaid background, the decision was taken to allot the land to Mumbai Metropolitan Region Development Authority, and therefore, as per the directions of the Government and subsequent directions of Collector, Thane, the Circle Officer, Balukm, Distt. Thane handed over the possession of the surplus land to the Mumbai Metropolitan Region Development Authority on 02.07.2008.” JUDGMENT Page 10 11 The affidavit also says that actual possession was not taken over as per the provisions of the ULC Act, 1976

“I say and submit that, even though the possession of the land has been handed over to the Mumbai Metropolitan Region Development Authority by Circle Officer, Balkum on 02.07.2008, the actual possession of said surplus land was not taken over as per the provisions of the ULC Act, 1976 before 29.11.2007.” 12. We may indicate, apart from the affidavits filed by the officials in this case, no other document has been made available either before the High Court or before this Court, either showing that the Appellant had voluntarily JUDGMENT surrendered or the Respondents had taken peaceful or forcible possession of the lands. In Hari Ram (supra) this Court examined the meaning and context of Sub-sections (3) to (6) of Section 10 of the ULC Act and held as follows : “30. Vacant land, it may be noted, is not actually acquired but deemed to have been Page 11 12

JUDGMENT Voluntary surrender 31. The “vesting” in sub-section (3) of Section 10, in our view, means vesting of title absolutely and not possession though nothing stands in the way of a person voluntarily surrendering or delivering possession. The Court in Maharaj Singh v. State of U.P. (1977 (1) SCC 155), while interpreting Section 117(1) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 held that “vesting” is a word of slippery import and has many meanings and Page 12 13

JUDGMENT 32. We are of the view that so far as the present case is concerned, the word “vesting” takes in every interest in the property including de jure possession and, not de facto but it is always open to a person to voluntarily surrender and deliver possession, under Section 10(3) of the Act. 33. Before we examine sub-section (5) and sub-section (6) of Section 10, let us examine the meaning of sub-section (4) of Section 10 of the Act, which says that during the period commencing on the date of publication under Page 13 14

Peaceful dispossession 34. Sub-section (5) of Section 10, for the first time, speaks of “possession” which says that where any land is vested in the State Government under sub-section (3) of Section 10, the competent authority may, by notice in writing, order any person, who may be in possession of it to surrender or transfer possession to the State Government or to any other person, duly authorised by the State Government. JUDGMENT 35. If de facto possession has already passed on to the State Government by the two deeming provisions under sub-section (3) of Section 10, there is no necessity of using the expression “where any land is vested” under sub-section (5) of Section 10. Surrendering or transfer of possession under sub-section (3) of Section 10 can be voluntary so that the person Page 14 15

Forceful dispossession 36. The Act provides for forceful dispossession but only when a person refuses or fails to comply with an order under sub-section (5) of Section 10. Sub-section (6) of Section 10 again speaks of “possession” which says, if any person refuses or fails to comply with the order made under sub-section (5), the competent authority may take possession of the vacant land to be given to the State Government and for that purpose, force—as may be necessary— can be used. Sub-section (6), therefore, contemplates a situation of a person refusing or fails to comply with the order under sub-section (5), in the event of which the competent authority may take possession by use of force. Forcible dispossession of the land, therefore, is being resorted to only in a situation which falls under sub-section (6) and not under sub-section (5) of Section 10. Sub-sections (5) and (6), therefore, take care of both the situations i.e. taking possession by giving notice, that is, “peaceful dispossession” and on failure to surrender or give delivery of possession under Section 10(5), then “forceful JUDGMENT Page 15 16 dispossession” under sub-section (6) of Section 10.

13. We have, therefore, clearly indicated that it was always open to the authorities to take forcible possession and, in fact, in the notice issued under Section 10(5) of JUDGMENT the ULC Act, it was stated that if the possession had not been surrendered, possession would be taken by application of necessary force. For taking forcible possession, certain procedures had to be followed. Respondents have no case that such procedures were followed and forcible possession was taken. Further, Page 16 17 there is nothing to show that the Respondents had taken peaceful possession, nor there is anything to show that

been taken by the Respondents and not de facto possession before coming into force of the repeal of the Act. Since there is nothing to show that de facto possession had been taken from the Appellants prior to the execution of the possession receipt in favour of MRDA, it cannot hold on to the lands in question, which are legally owned and possessed by the Appellants. Consequently, we are inclined to allow this appeal and quash the notice dated 17.2.2005 and subsequent action JUDGMENT taken therein in view of the repeal of the ULC Act. The above reasoning would apply in respect of other appeals as well and all proceedings initiated against the Appellants, therefore, would stand quashed. 14. The Appeals are, accordingly, allowed. However, there shall be no order as to costs. Page 17 18 ……………………………..J. (K. S. Radhakrishnan) ……………………………..J. (Vikramajit Sen) New Delhi, February 14, 2014. JUDGMENT Page 18