Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3032 OF 2010
U.A. Basheer Thr. G.P.A. Holder …Appellant(s)
VERSUS
State of Karnataka & Anr. …Respondent(s)
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J. :
This appeal arises out of order and judgment of the Division
Bench of the High Court of Karnataka (hereinafter, ‘High Court’)
dated 26.03.2009, dismissing Writ Appeal No. 7758 of 2003
[ULC] filed by the Appellant herein against the order dated
21.10.2003 passed by the learned Single Judge of the High Court
in W.P. No. 35449 of 2001.
Signature Not Verified
Digitally signed by
Factual Background:
GULSHAN KUMAR
ARORA
Date: 2021.02.17
16:13:39 IST
Reason:
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2. The facts leading to this appeal are as follows: Five
properties/Survey Nos. (533B2, 532A, 537, 533A, 539),
totally measuring 3 acres and 11 cents, situated in Ullal village,
Mangalore Agglomeration (‘joint family property’), originally
belonged to the joint family of two sisters, namely, Smt. Korapalu
Sapalyathi and Smt. Nemu Sapalyathi. Korapalu Sapalyathi had
three children and Smt. Nemu Sapalyathi had seven children.
After the death of the two sisters, the Appellant’s case is that
their ten children benefited through a registered partition deed
dated 9.01.1984. Through the said partition deed, Smt. Leela
Sapalyathi, daughter of Smt. Korapalu Sapalyathi, allegedly came
to hold a share of 1983 sq. mts. of land, including land to the
extent of 30 cents falling under Survey No. 53/3A. Likewise, the
other nine children of Smt. Korapalu Sapalyathi and Smt. Nemu
Sapalyathi are also said to have got their share of the joint family
property through the said partition deed.
3. The Urban Land (Ceiling and Regulation) Act, 1976
(hereinafter, ‘Principal Act’) came into force in Karnataka on
17.02.1976. Padmanabha, one of the seven children of Smt.
Nemu Sapalyathi, filed a statement under Section 6(1) of the
Principal Act on 15.06.1984 declaring the particulars of the joint
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family property. Thereafter, the Deputy Commissioner and
Competent Authority, Mangalore Urban Agglomeration
(Respondent No. 2 herein; hereinafter, ‘Competent Authority’)
issued a draft statement under Section 8(1) of the Principal Act to
the declarant, i.e., Padmanabha to surrender excess vacant land
of 9,489.48 sq. mts, which included land falling within Survey
No. 53/3A. In response to the said notice, Padmanabha filed his
objections on 1.07.1985 stating that the property belonged to his
late mother and her sister and that after their death, the joint
family property had been divided through the aforementioned
partition deed. He further stated that the individual share of each
of the children subsequent to the partition was within the ceiling
limit prescribed under the Principal Act.
4. On 5.12.1994, the Competent Authority passed an order
holding that the partition deed having been effected on
9.01.1984, i.e., subsequent to the commencement of the
Principal Act, the same could not be considered as per Section 42
of the Principal Act. Thus, the Competent Authority directed that
an extent of 5,210.10 sq. mts. of land in Ullal village held by the
declarant be treated as excess vacant land to be surrendered.
Subsequently, on 16.10.1996, the Competent Authority passed
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an award fixing compensation for the said excess land at
Rs.15,630/. In the said award, it was stated that Gazette
notification was made in respect of acquisition of the land on
27.10.1995 and 22.1.1996 as per the provisions of Section 10(1)
and 10(3) of the Principal Act.
5. It is the Appellant’s case that he had executed a sale deed on
26.03.1994 with Smt. Leela Sapalyathi whereby he purchased a
portion of Survey No. 53/3A measuring 14 cents comprising an
old house D. No. 206 (hereinafter, ‘suit property’). The Appellant
claims that he took possession of the suit property on the date of
purchase and has been in possession till date. The Appellant
further contends that after the said purchase, the suit property
was mutated in his name. In this regard, he has produced copies
of the Record of Rights, Tenancy and Crops (‘RTC’) for the years
19931994 and 19941995. The Appellant states that he was
unaware of the Competent Authority’s orders dated 5.12.1994
and 16.10.1996 mentioned supra. In April 2001, the Appellant
wished to undertake renovation of the house on the suit property
and hence, approached the village accountant for the latest copy
of the RTC. It was at this stage that he noticed that the
Government’s name had been entered in the RTC. Upon inquiry,
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the Appellant was apprised of the proceedings under the
Principal Act and the subsequent orders passed by the
Competent Authority.
6. On 9.05.2001, the Appellant filed a petition under Sections 4
& 5 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999
(hereinafter, ‘Repeal Act’) praying for his name to be restored in
the RTC, inter alia on the grounds that the Competent Authority
had not issued notice to the Appellant regarding taking of
possession of the suit property. That, in any case, the Competent
Authority had not taken physical possession of the suit property
as on the date of commencement of the Repeal Act. Hence, as per
the provisions of the Repeal Act, the proceedings would abate and
the Competent Authority could not take further action under the
Principal Act. The said petition was rejected by the Competent
Authority vide order dated 12.06.2001.
7. Thereafter, the Appellant approached the High Court by way of
Writ Petition No. 35449/2001 which was dismissed vide order
dated 21.10.2003. The Appellant’s Writ Appeal No. 7758/2003
[ULC] before the Division Bench of the High Court was also
dismissed vide impugned order dated 26.03.2009 with certain
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observations. Aggrieved, the Appellant has come before this
Court.
Appellant’s Submissions:
8. We have heard the learned counsel for the Appellant at length.
The Appellant’s main contentions may be summarised as follows:
(i) That vide partition deed dated 9.01.1984, Smt. Leela
Sapalyathi obtained 1983 sq. mts. of land in the joint family
property which consisted of a residential house as well. As per
Schedule 1, Category D of the Principal Act, a person is entitled
to hold 2000 sq. mts. of land. In such case, the Competent
Authority erred in concluding that the declarant Padmanabha
holds excess land where in fact Survey No. 53/3A has fallen to
the share of Leela Sapalyathi who is the Appellant’s vendor. In
fact, in light of the partition deed, Padmanbha, has no right to file
the declaration under Section 6(1) of the Principal Act in respect
of the suit property, and therefore, the entire proceedings are
vitiated;
(ii) That the order dated 5.12.1994 was passed by the Competent
Authority without issuing notice to the Appellant or his vendor,
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i.e., Smt. Leela Sapalyathi and that the said proceedings under
the Principal Act were carried out behind their backs;
(iii) That the declaration under Section 6(1) of the Principal Act
had been filed by Padmanabha way back on 15.06.1984 and his
objections were filed on 1.07.1985. However, the Competent
Authority passed its order dated 05.12.1994 after 9 years without
issuing notice to any of the 10 members of the joint family;
(iv) That it is not the case of the Respondents that compensation
had been paid. Since neither compensation had been paid nor
possession been taken on the date of coming into force of the
Repeal Act, i.e., on 8.07.1999, the orders passed by the
Competent Authority under the Principal Act have abated.
Respondents’ Submissions:
9. The Competent Authority’s contentions may be summarised as
follows:
(i) That an extent of 0.57 acre in Survey No. 53/3A and 0.71¾
acre in Survey No. 53/3B2 of Ullal Village have been declared
excess as per Section 10(3) of the Principal Act on the basis of the
declaration filed by Padmanabha under Section 6(1) of the
Principal Act on 15.06.1984. Hence, all transactions made after
the said date, i.e., sale of suit property to the Appellant, without
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the permission of the Competent Authority are null and void, as
per Section 42 of the Principal Act;
(ii) That after the issuance of notification under Section 10(3) of
the Principal Act, the suit property vests with the Government
free from all encumbrances. Accordingly, the necessary entries
were made in the Government’s name in the RTC. Hence, the
Appellant’s contentions are baseless and may be overruled;
(iii) That the declarant Padmanabha was given the opportunity to
put forth his objections and the same were considered by the
Competent Authority before passing orders under Section 8(4) of
the Principal Act. The partition deed was affected on 9.01.1984,
i.e., subsequent to the commencement of the Principal Act and
the same cannot be considered as per Section 42 of the Principal
Act;
(iv) Since the Appellant had not filed the declaration under
Section 6(1) of the Principal Act, the question of issue of notice to
him does not arise;
(v) The Government had taken possession of the suit property on
12.07.1996 as per Section 10(6) of the Principal Act.
(vi) The order dated 5.12.1994 passed by the Competent
Authority is well within jurisdiction. The declaration filed by
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Padmanabha was enquired into properly and decided on merit.
Proper notices were issued to the declarant at all stages. The
Appellant does not have any right over the excess land.
III. This Court’s Analysis
10. Having undertaken a thorough perusal of the documents and
submissions on record, we find ourselves unable to completely
affirm the impugned judgment dated 26.03.2009 of the Division
Bench. Before proceeding to lay down our conclusions, it may be
useful to first refer to the findings of the learned Single Judge
and the learned Division Bench.
11. The learned Single Judge dismissed the Appellant’s writ
petition on the sole ground that the partition deed dated
9.01.1984, that the Appellant had heavily relied on in
furtherance of his submissions, was not produced before the
Court. The Single Judge observed as follows:
“4. It is relevant to observe here that the petitioner
being the object or before the respondent no.2 did not
produce any proof of partition in respect of the subject
property fallen to the share of the vendor to succeed to
execute the sale deed in the month of March, 1994. He
would have done definitely that when he had made out
a case before the respondent no.2. Even before this
Court, the petitioner had not filed any document as
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that of the partition deed to show that the subject
property was the subject matter of partition. Therefore,
it appears to me that the petition fails on that score
alone. In view of that, the petition does not merit any
consideration. The writ petition is therefore dismissed
as the same is devoid of merit; I order accordingly.”
12. The Division Bench, on the other hand, while dismissing the
Appellant’s writ appeal, observed that regardless of whether the
declarant Padmanabha and his family members had effected
partition after the Principal Act commenced, the concerned land
would still be subject to the proceedings initiated under the
Principal Act. The Division Bench further observed that the
Appellant has not established that he acquired any interest in the
suit property prior to the Principal Act’s commencement or to the
filing of the declaration by Padmanabha, and thus, there was no
obligation on the Competent Authority to issue notice to the
Appellant and afford him a hearing before passing the order.
13. At this juncture, it is pertinent to refer to Section 6 of the
Principal Act, which requires that a statement be filed before the
Competent Authority by ‘ every person holding vacant land in
excess of the ceiling limit at the commencement of the Act …’
(emphasis supplied). Thus, the determination of ‘excess land’ is
to be made considering the status of the land at the time of
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commencement of the Principal Act, and not at the time of filing
of the declaration. In our considered opinion, since it is an
admitted fact that the partition, if any, was only effected after the
Principal Act’s commencement, the Division Bench was correct in
holding that the partition deed dated 9.01.1984 would not affect
the validity of the Competent Authority’s determination of excess
land owned by the joint family at the time of commencement of
the Act. Hence, to this limited extent, we concur with the findings
of the Division Bench.
14. We have also given due consideration to the provisions of
Section 8 and Section 9 of the Principal Act, and in our opinion,
the aforementioned Sections make it incumbent on the
Competent Authority to issue notice to or provide an opportunity
to be heard only to the ‘person concerned’, i.e., the person who
has filed the statement under Section 6 of the Principal Act. The
claims of all other persons interested in the vacant land are to be
considered through issuing a Gazetted notification to that effect
as per Section 10(1) of the Principal Act. The Competent
Authority had duly issued such notification on 27.10.1995.
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15. Now, coming to the question of possession, it is the
Appellant’s contention that, subsequent to the declaration, he
acquired the suit property from Smt. Leela Sapalyathi, by sale
agreement dated 26.03.1994, and continues to be in possession
of it. That Smt. Leela Sapalyathi was competent to sell the suit
property, as it was a portion of the 1,983 sq. mts. of the joint
family property she acquired by virtue of the partition deed dated
9.01.1984. We find that this argument is relevant in light of the
passage of the Repeal Act, with effect from 8.07.1999. Section 4
of the Repeal Act provides as follows:
“4. All proceedings relating to any order made or
purported to be made under the principal Act pending
immediately before the commencement of this Act,
before any court, tribunal or other authority shall
abate:
Provided that this section shall not apply to the
proceedings relating to sections 11,12,13 and 14 of the
principal Act in so far as such proceedings are
relatable to the land, possession of which has been
taken over by the State Government or any person
duly authorised by the State Government in this behalf
or by the competent authority.”
Section 3(1)(a) of the Repeal Act, which provides for a savings
clause, throws light on this, by stating that the repeal shall not
affect the vesting of any vacant land in the State Government by
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the Principal Act, the possession of which has been taken over by
the concerned State Government. This is further qualified in
Section 3(2) which states that vacant land vested in the State
Government by the Principal Act, the possession for which has
not been taken over, shall be restored only once any
compensation paid to the landholder has been returned.
16. It is clear from the aforementioned legislative provisions that
the question of current possession of the suit property is
absolutely material to a full adjudication of the controversy before
us. This is because, if the Appellant does enjoy possession, as
claimed by him, any proceedings for any excess land under the
Principal Act are liable to abate, as per Section 3 and Section 4 of
the Repeal Act, and the Appellant would be entitled to ownership
and possession over the suit property. However, neither the
partition deed dated 9.01.1984 that is alleged to have conferred
title on Smt. Leela Sapalyathi, nor the sale deed dated
26.03.1994 that purportedly passed on the title to the Appellant,
have been produced before this Court. There is, thus, nothing on
record to establish Appellant’s purchase of, possession of, or
interest in the suit property.
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17. Whereas the Appellant maintains that he has locus standi to
pray for abatement of the proceedings which are the subject
matter of this appeal, being in possession of the suit property;
the Competent Authority’s order dated 16.10.1996 declaring the
award of compensation for the excess land, states that the
Competent Authority had taken over possession of the suit
property with effect from 12.07.1996, i.e., before the passage of
the Repeal Act. In our opinion, there is nothing on record, that
conclusively establishes possession of the suit property either by
the Competent Authority or the Appellant herein. Given the
conflicting averments made by the parties, this is a pure question
of fact.
18. In this regard, the Division Bench in the impugned order has
observed the following:
“5. It is contended that the possession of the land is
not taken by the Government in spite of the said order
and the appellant continues to be in possession. It is
clear from the repealed Act, if the possession has not
been taken after the proceedings initiated under the
Act, the order is ceased to have any effect and the
person in possession is continued to be the owner. A
perusal of the order discloses that 5 Sy. Nos. were
involved in the declaration, from the order it is not
possible to make out in which survey number the
excess land falls. If there is no indication of the said
excess land falling within any particular survey
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number and if the authorities have proceeded to take
possession, it would not be in consonance with the
order. If really possession has not yet been taken
under the repealed Act, the petitioner is entitled to
continue in possession of the land. All these matter
cannot be the subject matter of the writ petition filed
challenging the order under Section 10 filed by the
declarant. Notwithstanding the dismissal of the writ
appeal or writ petition, it is open to the
appellant/petitioner to work out his remedy in
accordance with law...” (emphasis supplied)
19. We find ourselves unable to agree with the Division Bench on
this aspect of the matter, and thus set aside the impugned
judgment. It was incumbent on the Division Bench to enquire
into and settle the questions of fact arising from the present
controversy, such as whether the Appellant’s claim over the suit
property was valid, whether he was in actual physical possession
of the suit property, and resultantly, whether he had the locus
standi to pray for abatement of the proceedings under the Repeal
Act. This would have settled finally the question of abatement of
the proceedings, and prevented the inefficient proliferation of
further litigation between the parties.
IV. Conclusions and Directions
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20. Since the learned Single Judge has already given a definite
factual finding as to the question of the Appellant’s ownership
and possession of the suit property in his judgment dated
21.10.2003 (supra), we do not think it appropriate to remit the
matter to the learned Single Judge.
21. Instead, we direct the matter to be remitted to the Division
Bench of the Karnataka High Court to consider the case afresh.
All questions of fact outlined above are to remain open, and the
parties are given liberty to place on record additional evidence not
made a part of the proceedings heretofore. Since the other
original owners of the joint family property have accepted the
orders of the Competent Authority, in so far as they have not
questioned the said orders, the Division Bench will confine its
findings only with regard to the issue of possession of the suit
property.
22. The appeal stands disposed of accordingly. No order as to
costs.
…..…………................................J.
(MOHAN M. SHANTANAGOUDAR)
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.……………………………...............J.
(VINEET SARAN)
NEW DELHI,
FEBRUARY 17 , 2021