State of U.P. Vs Hari Ram

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 2326 OF 2013 [Arising out of SLP (Civil) NO.12960 OF 2008]

State of U.P. .. Appellant

Versus

Hari Ram .. Respondent

WITH

CIVIL APPEAL NO. 2327 OF 2013 arising out of SLP(C)No.10625/2006

CIVIL APPEAL NO. 2328 OF 2013 arising out of SLP(C)No.10626/2006

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CIVIL APPEAL NO. 2336 OF 2013 arising out of SLP(C)No.18486/2006 CIVIL APPEAL NO. 2337 OF 2013 arising out of SLP(C)No.12955/2008

CIVIL APPEAL NO. 2338 OF 2013 arising out of SLP(C)No.12956/2008

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J U D G M E N T

K. S. Radhakrishnan, J

1. Leave granted.

2. We are, in these batch of cases, called upon to decide the

question whether the deemed vesting of surplus land under

Section 10(3) of the Urban Land (Ceiling and Regulation) Act,

1976 [for short ‘the Act’] would amount to taking de facto

possession depriving the land holders of the benefit of the saving

Clause under Section 3 of the Urban Land (Ceiling and Regulation)

Repeal Act, 1999 [for short ‘the Repeal Act’].

FACTS:

3. Hari Ram, respondent herein, had filed a statement on

28.9.1976 giving details of the vacant land he was holding in

excess of ceiling limit prescribed under the Act, as provided under

Section 6 of the Act. The competent authority under the Act

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surveyed the land and the respondent was served with a draft

statement under Section 8(3) of the Act on 13.5.1981, calling for

objection to the draft statement within thirty days. No objection

was preferred by the respondent and it was found that he was

holding excess land measuring 52,513.30 sq. meters and an order

to that effect was passed by the competent authority under

Section 8(4) of the Act, vide his proceeding dated 29.6.1981.

4. The competent authority later issued a notification dated

12.6.1982 under Section 10(1) of the Ceiling Act, which was

published in the Government Gazette on 12.6.1982 giving the

particulars of the vacant land held by the respondent. The

competent authority then issued a notification dated 22.11.1997,

which was published on the same date, stating the land shall be

deemed to have been vested with the Government from

12.6.1982, free from all encumbrances. On 10.6.1999, the

competent authority vide its letter dated 10.6.1999 informed the

Bandobast Chakbandi Adhikar that the surplus land declared as

per the Notification stood vested in the State Government. On

19.6.1999, the prescribed authority issued a notice under Section

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10(5) of the Act directing the respondent to hand over possession

of the land declared as surplus to a duly authorized person.

Aggrieved by the same, the respondent preferred an appeal No.29

of 1999 before the District Judge, Varanasi under Section 33 of the

Act, contending that before passing the order under Section 8(4)

of the Act, no notice, as contemplated under Section 8(3) of the

Act, was served on him. The appeal was allowed and the order

dated 29.06.1981 was quashed, vide judgment dated 14.12.1999.

5. Aggrieved by the said order, State of U.P., through the

competent authority, preferred Civil Misc. Petition No. 47369 of

2000 before the High Court of Allahabad under Article 226 of the

Constitution of India, and the High Court, after elaborately

considering the various contentions, took the view that sub-

section (3) of Section 10 does not envisage, taking physical and

de facto possession of the surplus land, for which proceedings

under sub-section (5) of Section 10 have to be followed. On facts

also, the Division Bench found no reason to interfere with the

order of the District Judge, and the appeal was dismissed, against

which this appeal has been preferred. Following the judgment in

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Writ Petition No.47369 of 2000, several writ petitions were

disposed of by the High Court against which appeals are pending

before this Court.

6. We intend to take up the appeal filed against the judgment

in Writ Petition No. 47369 of 2000 as the leading case, based on

which other appeals can be disposed of.

7. Shri Sunil Gupta, learned senior counsel appearing for the

appellant - State of U.P. submitted that the High Court has

committed an error in interpreting sub-section (3) to Section 10 of

the Act and submitted that the expressions “deemed acquisition”

and “deemed vesting” which find a place in Section 10(3) of the

Act would take in not only de jure possession but also de facto

possession. Learned senior counsel submitted that under Section

10(2) of the Act, the competent authority considers the claims of

the persons interested in vacant land and then determines the

nature and extent of such claims, followed by a declaration under

Section 10(3) of the Act by publication in the Official Gazette

which amounts to absolute vesting. Learned senior counsel

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submitted that Section 10(3) is a self contained provision and

does not make vesting dependent on any other or further

procedure to be complied with by the competent authority.

Learned senior counsel also submitted that Section 10(5) and

Section 10(6) speak of “hostile possession” and only in cases

where hostile possession is set up by the owner in respect of the

vacant land by growing crops, constructing buildings or other

fixtures etc., the competent authority has to take recourse to the

procedure laid down in those provisions. Referring to the

provisions of the Repeal Act, learned senior counsel submitted

that the wide language used therein envisages various

possibilities such as taking over possession under Section 10(3),

Section 10(5) or Section 10(6) of the Act. Learned senior counsel

submitted that in cases where possession is seen having been

taken over legally, statutorily and by way of presumption in law,

on account of the publication of the notification and the deeming

clause and legal fiction provided under Section 10(3) of the Act,

the requirement of Section 3(1)(a) of the Repeal Act shall stand

satisfied and the land so vested and possessed by the State

Government shall remain intact in the ownership and possession

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of the State Government. Learned senior counsel also submitted

that the procedure laid down under U.P. Urban Land Ceiling

(Taking of Possession, Payment of Amount and Allied Matters)

Directions, 1983 (for short ‘Directions 1983’) would not apply in

view of the plenary character of Section 10(3).

8. Learned counsels appearing for the respondents, on the

other hand, fully supported the judgment of the High Court and

submitted that on a conjoint reading of Sections 10(3), 10(5),

10(6) and Section 3 of the Repeal Act would show that the

expressions “deemed to have been acquired” or “deemed to have

vested” would not comprehend “physical possession” under

Section 10(3) in view of Sections 10(5) and 10(6) of the Act.

Learned counsels urged in such situations, the State has

necessarily to follow the procedure laid down under the Directions

1983 issued in exercise of the powers conferred under Section 35

of the Act. Further, it was submitted that the Object and Reasons

of the Repealing Act would be defeated, if the interpretation

placed by Shri Gupta is accepted, since it being a beneficial

enactment.

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Judicial evaluation

9. The Parliament, after having felt the need for an orderly

development of urban areas in view of the growth of population

and increase in urbanization, enacted Act 33 of 1976. The

Parliament also felt that it is necessary to take measures for

exercising social control over the scarce resource of urban land

with a view to ensuring its equitable distribution. To ensure

uniformity in approach, the Government of India had also

addressed various State Governments in this regard. Eleven

States had passed resolutions under Article 252(1) of the

Constitution empowering the Parliament to undertake legislation

in that behalf. Consequently, the Act of 1976 was enacted which

came into force on 17.2.1976. The Object of the Act was to

provide for imposition of ceiling on vacant land in urban

agglomeration, for the acquisition of such land in excess of the

ceiling limit, to regulate the construction of buildings on such

lands and for matters connected therewith, with a view to

preventing the concentration of urban land in the hands of few

persons and speculation and profiteering therein and with a view

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to bringing about an equitable distribution of land in urban

agglomerations to sub-serve the common good.

10. The legislature then put a ceiling on vacant land in Chapter

III of the Act. Section 6 of the Act placed an obligation on persons

holding vacant land in excess of ceiling limit to file statement

before the competent authority. Section 8 of the Act referred to

the preparation of draft statement as regards vacant land held in

excess of ceiling limit. Draft statement prepared has to be served

on the person concerned together with a notice under sub-section

(3) of Section 8 calling for objections, if any, within 30 days to the

service of notice. The competent authority, after considering the

objections has to pass orders under sub-section (4) to Section 8,

after considering the objections filed. The final statement has to

be issued under Section 9 of the Act.

11. We are, in this case primarily concerned, with the scope of

Section 10 of the Act, which reads as follow:

10. Acquisition of vacant land in excess of ceiling limit.- (1) As soon as may be after the service of the

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statement under section 9 on the person concerned, the competent authority shall cause a notification giving the particulars of the vacant land held by such person in excess of the ceiling limit and stating that- (i) such vacant land is to be acquired by the concerned State Government; and (ii) the claims of all persons interested in such vacant land may be made by them personally or by their agents giving particulars of the nature of their interests in such land, to be published for the information of the general public in the Official Gazette of the State concerned and in such other manner as may be prescribed. (2) After considering the claims of the persons interested in the vacant land, made to the competent authority in pursuance of the notification published under sub-section (1), the competent authority shall determine the nature and extent of such claims and pass such orders as it deems fit. (3) At any time after the publication of the notification under sub-section (1), the competent authority may, by notification published in the Official Gazette of the State concerned, declare that the excess vacant land referred to in the notification published under sub-section (1) shall, with effect from such date as may be specified in the declaration, be deemed to have been acquired by the State Government and upon the publication of such declaration, such land shall be deemed to have vested absolutely in the State Government free from all encumbrances with effect from the date so specified. (4) During the period commencing on the date of publication of the notification under sub-section (1) and ending with the date specified in the declaration made under sub-section (3)-- (i) no person shall transfer by way of sale, mortgage, gift, lease or otherwise any excess vacant land

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(including any part thereof) specified in the notification aforesaid and any such transfer made in contravention of this provision shall be deemed to be null and void; and (ii) no person shall alter or cause to be altered the use of such excess vacant land. (5) Where any vacant land is vested in the State Government under sub-section (3), the competent authority may, by notice in writing, order any person who may be in possession of it to surrender or deliver possession thereof to the State Government or to any person duly authorised by the State Government in this behalf within thirty days of the service of the notice. (6) If any person refuses or fails to comply with an order made under sub-section (5), the competent authority may take possession of the vacant land or cause it to be given to the concerned State Government or to any person duly authorised by such State Government in this behalf and may for that purpose use such force as may be necessary. Explanation.-In this section, in sub-section (1) of section 11.and in sections 14 and 23, "State Government", in relation to- (a) any vacant land owned by the Central Government, means the Central Government; (b) any vacant land owned by any State Government and situated in a Union territory or within the local limits of a cantonment declared as such under section 3 of the Cantonments Act, 1924, (2 of 1924.) means that State Government.”

12. Before examining the scope of sub-section (3) to Section 10

as well as sub-sections (5) and (6) to Section 10, reference may be

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made to the Repeal Act 1999 and its Object and Reasons which

are as follow:

Statement of Object and Reasons:

“1. The Urban Land (Ceiling and Regulation) Act, 1976 was passed when Proclamation of emergency was in operation with a laudable objective in mind. The said Act was passed pursuant to resolution passed by the State Legislature under clause (1) of Article 252. Unfortunately public opinion is nearly unanimous that the Act has failed to achieve what was expected of it. It has on the contrary pushed up land prices to unconscionable levels, practically brought the housing industry to a stop and provided copious opportunities for corruption. There is wide spread clamour for removing this most potent clog on housing. 2. Parliament has no power to repeal or amend the Act unless resolutions are passed by two or more state legislatures as required under clause (2) of Article 252. 3. The Legislature of Haryana and Punjab have passed resolutions empowering Parliament to repel the act in those States. The Act, in the first instance will be repealed in those States and in the Union Territories and subsequently if any State Legislature adopts this Act by resolution, then from the date of its adoption the Act will stand repealed in that State. 4. The proposed repeal, along with some other incentives and simplification of administrative procedures is expected revive the stagnant housing industry and provide affordable living accommodation for those who are in a state of underserved want and are entitled to public assistance. The repeal will not however, affect land on which building activity has already commenced. For that limited purpose

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exemption granted under Section 20 of the Act will continue to be operative. Amounts paid out by the State Government will become refundable. 5. The bill seeks to achieve the above purpose.”

13. The Act 36 of 1976 was repealed by Section 2 of the Repeal

Act, 1999 and the Repeal Act was adopted in the State of U.P. on

March 18, 1999. The Repeal Act contains a saving clause vide

Section 3 which reads as follow:

3. Saving.-

(I) The repeal of the principal Act shall not affect-

(a) The vesting of any vacant land under sub-section 10, possession of which has been taken over by the state government or any person duly authorized by the state government in this behalf or by the competent authority;

(b The validity of any order granting exemption under sub-section (I) of section 20 or any action taken there under, notwithstanding any judgment of any court to the contrary;

(c) Any payment made to the state government as a condition for granting exemption under sub-section (I) of section 20.

(2) Where- (a) any land is deemed to have vested in the state government under sub section (3) of section 10 of the principal Act but possession of which has not been

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taken over by the state government or any person duly authorized by the state government in this behalf or by the competent authority; and

(b) any amount has been paid by the state government with respect to such land,

then such land shall not be restored unless the amount paid, if any, has been refunded to the state government.”

14. We notice even after the coming into force of the Repeal Act,

the competent authority under the Act 33 of 1976 vide its letter

dated 10th June, 1999 informed the Bandobast Chakbandi Adhikar

that the surplus land declared as per the notification issued under

the Act had vested in the State Government free from all

encumbrances and, therefore, in the revenue records the name of

State Government be entered and name of the respondent be

mutated. The competent authority vide its notice dated

19.6.1999 issued under Section 10(5) of the Act directed the

respondent to handover possession of the land declared as

surplus to duly authorized persons on behalf of the Collector.

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15. Before examining the impact of the Repeal Act on Act 33 of

1976, particularly, Section 3 of the Repeal Act on sub-section (3)

to Section 10 of the Act, let us examine whether possession could

be taken following the procedure laid down in sub-section (3) to

Section 10 of the Act. Section 6 casts an obligation on every

person holding vacant land in excess of ceiling limit to file a

statement before the competent authority and after following all

the statutory procedures, the competent authority has to pass the

order under Section 8(4) on the draft statement. Following that, a

final statement has to be issued under Section 9 on the person

concerned. Sub-section (1) to Section 10 states that after the

service of statement, the competent authority has to issue a

notification giving particulars of the land held by such person in

excess of the ceiling limit. Notification has to be published for the

information of the general public in the Official Gazette, stating

that such vacant land is to be acquired and that the claims of all

the persons interested in such vacant land be made by them

giving particulars of the nature of their interests in such land.

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16. Sub-section (2) of Section 10 states that after considering

the claims of persons interested in the vacant land, the competent

authority has to determine the nature and extent of such claims

and pass such orders as it might deem fit. Sub-section (3) of

Section 10 states that after the publication of the notification

under sub-section (1), the competent authority has to declare that

the excess land referred to in the Notification published under

sub-section (1) of Section 10 shall, with effect from such date, as

might be prescribed in the declaration, be deemed to have been

acquired by the State Government. On publication of a declaration

to that effect such land shall be deemed to have been vested

absolutely in the State Government, free from all encumbrances,

with effect from the date so specified.

Legal Fiction

17. Legislature is competent to create a legal fiction, for the

purpose of assuming existence of a fact which does not really

exist. Sub-section (3) of Section 10 contained two deeming

provisions such as “deemed to have been acquired” and “deemed

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to have been vested absolutely”. Let us first examine the legal

consequences of a ‘deeming provision’. In interpreting the

provision creating a legal fiction, the Court is to ascertain for what

purpose the fiction is created and after ascertaining this, the Court

is to assume all those facts and consequences which are

incidental or inevitable corollaries to the giving effect to the

fiction. This Court in Delhi Cloth and General Mills Company

Limited v. State of Rajasthan (1996) 2 SCC 449 held that what

can be deemed to exist under a legal fiction are facts and not

legal consequences which do not flow from the law as it stands.

18. James Lords Justice in Ex-parte, Walton, In re, Levy

(1881) 17 Chance. D. 746 speaks on deeming fiction as:

“When a statute enacts that something shall be deemed to have been done, which in fact and in truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to”.

19. In Szoma v. Secretary of State for the Department of

Work and Pensions (2006) 1 All E.R. 1 (at 25), court held, it

would be quite wrong to carry this fiction beyond its originally

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intended purpose so as to deem a person in fact lawfully here not

to be here at all. The intention of a deeming provision, in laying

down a hypothesis is that the hypothesis shall be carried so far as

necessary to achieve the legislative purpose but no further. (see

also DEG Deutsche Institutions and another v. Kosby (2001)

3 All E.R. 878.

20. Let us test the meaning of the expression “deemed to have

been acquired” and “deemed to have been vested absolutely” in

the above legal settings. The expression “acquired” and “vested”

are not defined under the Act. Each word, phrase or sentence

that we get in a statutory provision, if not defined in the Act, then

is to be construed in the light of the general purpose of the Act. As

held by this Court in Organo Chemical Industries v. Union of

India (1979) 4 SCC 573 that a bare mechanical interpretation of

the words and application of a legislative intent devoid of concept

of purpose will reduce most of the remedial and beneficial

legislation to futility. Reference may also be made to the

Judgment of this Court in Directorate of Enforcement v.

Deepak Mahajan (1994) 3 SCC 440. Words and phrases,

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therefore, occurring in the statute are to be taken not in an

isolated or detached manner, it is associated on the context but

are read together and construed in the light of the purpose and

object of the Act.

21. This Court in S. Gopal Reddy v. State of U.P. (1996) 4 SCC

596 held:

“it is well known rule of interpretation of statutes that the text and the context of the entire Act must be looked into while interpreting any of the expressions used in a statute. The Courts must look to the object, which the statute seeks to achieve while interpreting any of the provisions of the Act. A purposive approach for interpreting the Act is necessary…….”

22. In Jugal Kishore Saraf v. M/s Raw Cotton Co. Ltd.

AIR 1955 SC 376, Justice S.R. Das stated:

“The cardinal rule of construction of statutes is to read the statute literally that is, by giving to the words used by legislature their ordinary natural and grammatical meaning. If, however, such a reading leads to absurdity and the words are susceptible of another meaning the Court may adopt the same. But if no such alternative construction is possible, the Court must adopt the ordinary rule of literal interpretation.”

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23. The expression “deemed to have been acquired” used as a

deeming fiction under sub-section (3) of Section 10 can only mean

acquisition of title or acquisition of interests because till that time

the land may be either in the ownership of the person who held

that vacant land or to possess such land as owner or as a tenant

or as mortgagee and so on as defined under Section 2(1) of the

Act. The word “vested” has not been defined in the Act, so also

the word “absolutely”. What is vested absolutely is only the land

which is deemed to have acquired and nothing more. The word

“vest” has different meaning in different context; especially when

we examine the meaning of vesting on the basis of a statutory

hypothesis of a deeming provision which Lord Hoffmann in

Customs and Excise Commissioners v. Zielinski Baker and

Partners (2004) 2 All E.R. 141 (at 11) described as “heroic piece

of deeming”.

24. The word “vest” or “vesting” has different meaning. Legal

Glossary, published by Official Language (Legislative) Commission

1970 Edition at Page 302:

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“Vest: 1. To give a person a legally fixed, immediate right or personal or future enjoyment of (an estate), to grant, endow, clothe with a particular authority, right of property, 2. To become legally vested; (T.P. Act.) “Vesting order: An order under statutory authority whereby property is transferred to and vested, without conveyance in some person or persons;

Black’s Law Dictionary (Sixth Edition) 1990 at page 1563:

“Vested: Fixed; accrued; settled; absolute; complete; Having the character or given the rights of absolute ownership; not contingent, not subject to be defeated by a condition precedent. Rights are “vested” when rights to enjoyment present or prospective has become property of some particular persons or persons as present interest; mere expectancy or future or contingent interest in property founded on anticipated continuance of existing laws does not continue “vested right” Vaughan v. Nadel; 228 Kan. 469, 618 p. 2d 778, 783. See also Accrue Vest and specific typed of vested interest infra.”

Webster’s Third New International Dictionary, of the English

Language unabridged, Volume III S to Z at page 2547 defines the

word “vest” as follow:

“vest” vest …… To place or give into the possession or discretion of some person or authority (the regulation of the waterways …. to give to a person a legally fixed immediate right of present or future enjoyment of (as an estate) (a deed that vests a title estate in the

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grantee and a remainder in his children), b. to grant endow, or clothe with a particular authority right or property ….. to put ( a person) in possession of land by the feudal ceremony of investiture ….. to become legally vested (normally) title to real property vests in the holder of a property executed deed.)”

25. Vest/vested, therefore, may or may not include

“transfer of possession” the meaning of which depends on

the context in which it has been placed and the

interpretation of various other related provisions.

26. What is deemed “vesting absolutely” is that “what is deemed

to have acquired”. In our view, there must be express words of

utmost clarity to persuade a court to hold that the legislature

intended to divest possession also, since the owners or holders of

the vacant land is pitted against a statutory hypothesis.

Possession, there is an adage “nine points of law” In Beedall v.

Maitland (1881) 17 Ch. D. p.183 Sir Edward Fry, while speaking

of a Statute which makes a forcible entry an indictable offence,

stated as follows:

“this statute creates one of the great differences which exist in our law between the being in

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possession and the being out of possession of land, and which gave rise to the old saying that possession is nine points of the law. The effect of the statute is this, that when a man is in possession, he may use force to keep out a trespasser; but if a trespasser has gained possession, the rightful owner cannot use force to put him out, but must appeal to the law for assistance.”

27. Vacant land, it may be noted, is not actually acquired but

deemed to have been acquired, in that deeming things to be what

they are not. Acquisition, therefore, does not take possession

unless there is an indication to the contrary. It is trite law that in

construing a deeming provision, it is necessary to bear in mind the

legislative purpose. The purpose of the Act is to impose ceiling on

vacant land, for the acquisition of land in excess of the ceiling limit

thereby to regulate construction on such lands, to prevent

concentration of urban lands in hands of few persons, so as to

bring about equitable distribution. For achieving that object,

various procedures have to be followed for acquisition and

vesting. When we look at those words in the above setting and the

provisions to follow such as sub-sections (5) and (6) of Section 10,

the words ‘acquired’ and ‘vested’ have different meaning and

content. Under Section 10(3), what is vested is de jure

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possession not de facto, for more reasons than one because we

are testing the expression on a statutory hypothesis and such an

hypothesis can be carried only to the extent necessary to achieve

the legislative intent.

Voluntary Surrender

28. 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

UP and Others (1977) 1 SCC 155, while interpreting Section

117(1) of U.P. Zamindari Abolition and Land Reform Act, 1950 held

that ‘vesting’ is a word of slippery import and has many meaning

and the context controls the text and the purpose and scheme

project the particular semantic shade or nuance of meaning. The

court in Rajendra Kumar v. Kalyan (dead) by Lrs. (2000) 8

SCC 99 held as follows:

“We do find some contentious substance in the contextual facts, since vesting shall have to be a “vesting” certain. “To vest, generally means to give a

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property in.” (Per Brett, L.J. Coverdale v. Charlton. Stroud’s Judicial Dictionary, 5th edn. Vol. VI.) Vesting in favour of the unborn person and in the contextual facts on the basis of a subsequent adoption after about 50 years without any authorization cannot however but be termed to be a contingent event. To “vest”, cannot be termed to be an executor devise. Be it noted however, that “vested” does not necessarily and always mean “vest in possession” but includes “vest in interest” as well.”

29. 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.

30. 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 sub-section (1),

ending with the day specified in the declaration made under sub-

section (3), no person shall transfer by way of sale, mortgage, gift

or otherwise, any excess vacant land, specified in the notification

and any such transfer made in contravention of the Act shall be

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deemed to be null and void. Further, it also says that no person

shall alter or cause to be altered the use of such excess vacant

land. Therefore, from the date of publication of the notification

under sub-section (1) and ending with the date specified in the

declaration made in sub-section (3), there is no question of

disturbing the possession of a person, the possession, therefore,

continues to be with the holder of the land.

Peaceful dispossession

31. Sub-section (5) of Section 10, for the first time, speaks of

“possession” which says 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 authorized by the State

Government.

32. If de facto possession has already passed on to the State

Government by the two deeming provisions under sub-section (3)

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to Section 10, there is no necessity of using the expression “where

any land is vested” under sub-section (5) to Section 10.

Surrendering or transfer of possession under sub-section (3) to

Section 10 can be voluntary so that the person may get the

compensation as provided under Section 11 of the Act early.

Once there is no voluntary surrender or delivery of possession,

necessarily the State Government has to issue notice in writing

under sub-section (5) to Section 10 to surrender or deliver

possession. Subsection (5) of Section 10 visualizes a situation of

surrendering and delivering possession, peacefully while sub-

section (6) of Section 10 contemplates a situation of forceful

dispossession.

Forceful dispossession

33. 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) to 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

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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 only in a

situation which falls under sub-section (6) and not under sub-

section (5) to 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), than “forceful

dispossession” under sub-section (6) of Section 10.

34. Requirement of giving notice under sub-sections (5) and (6)

of Section 10 is mandatory. Though the word ‘may’ has been

used therein, the word ‘may’ in both the sub-sections has to be

understood as “shall” because a court charged with the task of

enforcing the statute needs to decide the consequences that the

legislature intended to follow from failure to implement the

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requirement. Effect of non-issue of notice under sub-section (5) or

sub-section (6) of Section 11 is that it might result the land holder

being dispossessed without notice, therefore, the word ‘may’ has

to be read as ‘shall’.

35. Above reasoning is in consistence with the Directions 1983

which has been issued by the State Government in exercise of

powers conferred under Section 35 of the Act. Directions clearly

indicate that the procedure for taking possession of the vacant

land in excess of the prescribed ceiling limit, which reads as

under:

The Uttar Pradesh Urban Land Ceiling (Taking of Possession payment of amount and Allied Matters) Directions, 1983 (Directions issued by the State Government under Section 35 of the Act, 1976):

“In exercise of the powers under Section 35 of the Urban Land (Ceiling and Regulation) Act, 1976 (Act No.33 of 1976), the governor is pleased to issue the following directions relating to the powers and duties of the Competent Authority in respect of amount referred to in Section 11 of the aforesaid Act to the person or persons entitled thereto: 1. Short title, application and Commencement –These

directions may be called the Uttar Pradesh Urban Land

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Ceiling (Taking of Possession Payment of Amount and Allied Matters Directions, 1983)

2. The provisions contained in this direction shall be subjected to the provisions of any directions or rules or orders issued by the Central Government with such directions or rules or orders.

3. They shall come into force with effect from the date of publication in the Gazette. 2. Definitions:- 3. Procedure for taking possession of vacant Land in excess of Ceiling Limit-(1) The Competent Authority will maintain a register in From No.ULC -1 for each case regarding which notification under sub-section (3) of Section 10 of the Act is published in the Gazette.

4. (2) an order in Form No.ULC-II will be sent to each land holder as prescribed under sub-section (5) of Section 109 of the Act and the date of issue and service of the order will be entered in Column 8 of Form No.ULC-1. (3) On possession of the excess vacant land being taken in accordance with the provisions of sub-section (5) or sub-section (6) of Section 10 of the Act, entries will be made in a register in Form ULC-III and also in Column 9 of the Form No.ULC-1. The Competent Authority shall in token of verification of the entries, put his signatures in column 11 of Form No.ULC-1 and Column 10 of Form No.ULC-III.

Form No.ULC-1

Register of Notice u/s 10-(3) and 10(5)

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1 2 3 4 5 6 7 8 9 10 11 S. No

Serial No. of Register of Receipt Sl. No. of Register of Taking Possession

Case Number

Date of

Notifi- cation

u/s 10(3)

Land to be acquir

eed village Mohali

Date of

taking over

posse- ssion

Rema-

rks

Signa- ture of Compe -tent

Autho- rity

Form NO. ULC-II Notice order u/s 10(5)

(See clause (2) of Direction (3) In the Court of Competent Authority

U.L.C. …………… No………………… Date ……………… Sri/Smt………………………….T/o …………………………………. In exercise of the powers vested un/s 10(5) of the Urban Land Ceiling and Regulation Act, 1976 (Act No.33 of 1976, you are hereby informed that vide Notification No……. dated ….. under section 10(1) published in Uttar Pradesh Gazette dated …… following land has vested absolutely in the State free from all encumbrances as a consequence Notification u/s 10(3) published in Uttar Pradesh Gazette dated ……. Notification No……… dated …. With effect from ………. you are hereby ordered to surrender or deliver the possession of the land to the Collector of the District Authorised in this behalf under Notification No.324/II-27-U.C.77 dated February 9, 1977, published in the gazette, dated March 12, 1977, within thirty days from the date of receipt of this order otherwise action under sub-section (6) of Section 10 of the Act will follow.

Description of Vacant Land

Location Khasra number identification

Area Remarks

1 2 3 4

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Competent Authority …………………………. ………………………….

Dated..……………………….. No.

Copy forwarded to the Collector ………… with the request that action for immediate taking over of the possession of the above detailed surplus land and its proper maintenance may, kindly be taken an intimation be given to the undersigned along with copy of certificate to verify.

Competent Authority ………………………….

..………………………..”

36. Above-mentioned directives make it clear that sub-section

(3) takes in only de jure possession and not de facto possession,

therefore, if the land owner is not surrendering possession

voluntarily under sub-section (3) of Section 10, or surrendering or

delivering possession after notice, under Section 10(5) or

dispossession by use of force, it cannot be said that the State

Government has taken possession of the vacant land.

37. The scope of Act 33 of 1976 came up for consideration before

this Court on few occasions, reference may be made to certain

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judgments, even though there has been no elaborate discussion of

the provision of the Act and its impact on the Repeal Act.

Reference may be made to Pt. Madan Swaroop Shrotiya

Public Charitable Trust v. State of U.P. and Others (2000) 6

SCC 325, Ghasitey Lal Sahu and Another v. Competent

Authority, Under the Urban (Ceiling and Regulation Act,

1976), U.P. and Another (2004) 13 SCC 452, Mukarram Ali

Khan v. State of Uttar Pradesh and Others (2007) 11 SCC 90

and Vinayak Kashinath Shilkar v. Deputy Collector and

Competent Authority and Others (2012) 4 SCC 718.

Effect of the Repeal Act

38. Let us now examine the effect of Section 3 of the Repeal Act

15 of 1999 on sub-section (3) to Section 10 of the Act. The Repeal

Act 1999 has expressly repealed the Act 33 of 1976. The Object

and Reasons of the Repeal Act has already been referred to in the

earlier part of this Judgment. Repeal Act has, however, retained a

saving clause. The question whether a right has been acquired or

liability incurred under a statute before it is repealed will in each

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case depend on the construction of the statute and the facts of

the particular case.

39. The mere vesting of the land under sub-section (3) of Section

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 18.3.1999. State has to

establish that there has been a voluntary surrender of vacant land

or surrender and delivery of peaceful possession under sub-

section (5) of Section 10 or forceful dispossession under sub-

section (6) of Section 10. On failure to establish any of those

situations, the land owner or holder can claim the benefit of

Section 3 of the Repeal Act. The State Government in this appeal

could not establish any of those situations and hence the High

Court is right in holding that the respondent is entitled to get the

benefit of Section 3 of the Repeal Act.

40. We, therefore, find no infirmity in the judgment of the High

Court and the appeal is, accordingly, dismissed so also the other

appeals. No documents have been produced by the State to show

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that the respondents had been dispossessed before coming into

force of the Repeal Act and hence, the respondents are entitled to

get the benefit of Section 3 of the Repeal Act. However, there will

be no order as to costs.

……………………………..J. (K.S. Radhakrishnan)

……………………………..J. (Dipak Misra)

New Delhi, March 11, 2013

STATE OF U.P. Vs HARI RAM