U.A. BASHEER THR. G.P.A. HOLDER versus STATE OF KARNATAKA & ANR. on 17 February 2021

[2021] 1 S.C.R. 893

U.A. BASHEER THR. G.P.A. HOLDER

v.

STATE OF KARNATAKA & ANR.

(Civil Appeal No.3032 of 2010)

FEBRUARY 17, 2021

[MOHAN M. SHANTANAGOUDARAND VINEET SARAN, JJ.]

Urban Land (Ceiling and Regulation) Act, 1976 – ss.6(1),8(1),(4), 10(1), (3),(6), 42 – Urban Land (Ceiling and Regulation)Repeal Act, 1999 – ss.3(1)(a), (2), 4, 5 – Joint family property oftwo sisters under various Survey Nos. including Survey No.53/3A –Partition of the property alleged in 1984 between their children,one of whom filed statement u/s.6(1) declaring the particulars ofthe joint family property – Competent Authority issued a draftstatement to the declarant to surrender excess vacant land includingland falling within Survey No.53/3A – Objection filed – Eventually,land in inter alia Survey No.53/3A was declared as excess land –Appellant claims to have purchased a portion of Survey No.53/3Acomprising a house (suit property) in 1994 from the daughter ofone of the sisters who had allegedly acquired it by virtue of theaforesaid partition – Appellant filed petition under the Repeal Act,1999 for his name to be restored in the records instead of thegovernment’s – Petition rejected by Competent Authority –Appellant’s writ petition and appeal dismissed in High Court – Held:Determination of excess land is to be made considering the statusof the land at the time of commencement of the Principal Act andnot at the time of filing of the declaration – Since, admittedly thepartition, if any, was only effected after the Principal Act’scommencement, the Division Bench correctly held that the partitiondeed of 1984 would not affect the validity of the CompetentAuthority’s determination of excess land owned by the joint familyat the time of commencement of the Act – To this limited extent,findings of the Division Bench concurred with – However, there isnothing on record to conclusively establish possession of the suitproperty either by the Competent Authority or the appellant –Conflicting averments made by parties – It was incumbent on theDivision Bench to enquire into and settle the questions of fact –

A

B

CDEF

GH

AImpugned judgment set aside – Matter remitted to the Division Benchto consider the case afresh.

Urban Land (Ceiling and Regulation) Act, 1976 – ss. 6, 8, 9,10 – Held: ss.8 and 9 make it incumbent on the Competent Authorityto issue notice to or provide an opportunity to be heard only to theB‘person concerned’, i.e., the person who has filed the statement u/s.6 – Claims of all other persons interested in the vacant land are tobe considered through issuing a Gazetted notification as per s.10(1)– Urban Land (Ceiling and Regulation) Repeal Act, 1999.

Disposing of the appeal, the CourtC

HELD: 1.1 The Urban Land (Ceiling and Regulation) Act,1976 (Principal Act) came into force in Karnataka on 17.02.1976.Section 6 of the Principal Act requires that a statement be filedbefore the Competent Authority by ‘every person holding vacantland in excess of the ceiling limit at the commencement of theDAct…’. Thus, the determination of ‘excess land’ is to be madeconsidering the status of the land at the time of commencementof the Principal Act, and not at the time of filing of the declaration.Since it is an admitted fact that the partition, if any, was only effectedafter the Principal Act’s commencement, the Division Bench wascorrect in holding that the partition deed dated 9.01.1984 wouldEnot affect the validity of the Competent Authority’s determinationof excess land owned by the joint family at the time ofcommencement of the Act. Hence, to this limited extent,this Court concurs with the findings of the Division Bench.[Paras 3, 13][896-H; 901-A-C]F

1.2 Section 8 and Section 9 of the Principal Act make itincumbent on the Competent Authority to issue notice to orprovide an opportunity to be heard only to the ‘personconcerned’, i.e., the person who has filed the statement underSection 6 of the Principal Act. The claims of all other personsGinterested in the vacant land are to be considered through issuinga Gazetted notification to that effect as per Section 10(1) of thePrincipal Act. The Competent Authority had duly issued suchnotification on 27.10.1995. [Para 14][901-D-E]

1.3 It is the Appellant’s contention that, subsequent to thedeclaration, he acquired the suit property from ‘Smt. LS’H

(appellant’s vendor), by sale agreement dated 26.03.1994, andcontinues to be in possession of it. That ‘Smt. LS’ was competentto 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 partitiondeed dated 9.01.1984. This argument is relevant in light of thepassage of the Repeal Act, with effect from 8.07.1999. Section3(1)(a) of the Repeal Act, which provides for a savings clausestates that the repeal shall not affect the vesting of any vacantland in the State Government by the Principal Act, the possessionof which has been taken over by the concerned State Government.This is further qualified in Section 3(2) which states that vacantland vested in the State Government by the Principal Act, thepossession for which has not been taken over, shall be restoredonly once any compensation paid to the land-holder has beenreturned. It is thus clear that the question of current possessionof the suit property is absolutely material to a full adjudication ofthe controversy. This is because, if the Appellant does enjoypossession, as claimed by him, any proceedings for any excessland under the Principal Act are liable to abate, as per Section 3and Section 4 of the Repeal Act, and the Appellant would beentitled to ownership and possession over the suit property.However, neither the partition deed dated 9.01.1984 that isalleged to have conferred title on ‘Smt. LS’, nor the sale deeddated 26.03.1994 that purportedly passed on the title to theAppellant, 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. There is nothingon record, that conclusively establishes possession of the suitproperty either by the Competent Authority or the Appellant.Given the conflicting averments made by the parties, this is apure question of fact. [Paras 15-17][901-F-G; 902-B-F, G]

1.4 The impugned judgment is set aside. It was incumbenton the Division Bench to enquire into and settle the questions offact arising from the present controversy, such as whether theAppellant’s claim over the suit property was valid, whether hewas in actual physical possession of the suit property, andresultantly, whether he had the locus standi to pray for abatementof the proceedings under the Repeal Act. Since the Single Judgehas already given a definite factual finding as to the question of AB

C

D

E

F

G

H

Athe Appellant’s ownership and possession of the suit property, itis not appropriate to remit the matter to the Single Judge. Thematter is remitted to the Division Bench to consider the caseafresh. [Paras 19-21][903-D-H]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3032Bof 2010.

From the Judgment and Order dated 26.03.2009 of the High Courtof Karnataka at Bangalore in Writ Appeal No. 7758 of 2003 (ULC).

Girish Anantha Murthy, Mrs. Vaijayanthi Girish, ShubhranshuPadhi, Advs. for the appearing parties.

C

The Judgment of the Court was delivered by MOHAN M. SHANTANAGOUDAR, J.

This appeal arises out of order and judgment of the Division Benchof the High Court of Karnataka (hereinafter, ‘High Court’) datedD26.03.2009, dismissing Writ Appeal No. 7758 of 2003 [ULC] filed by theAppellant herein against the order dated 21.10.2003 passed by the learnedSingle Judge of the High Court in W.P. No. 35449 of 2001.

Factual Background:

Facts

2. The facts leading to this appeal are as follows: Five properties/ESurvey Nos. (53-3B2, 53-2A, 53-7, 53-3A, 53-9), totally measuring 3acres and 11 cents, situated in Ullal village, Mangalore Agglomeration(‘joint family property’), originally belonged to the joint family of twosisters, namely, Smt. Korapalu Sapalyathi and Smt. Nemu Sapalyathi.Korapalu Sapalyathi had three children and Smt. Nemu Sapalyathi hadFseven children. After the death of the two sisters, the Appellant’s case isthat their ten children benefited through a registered partition deed dated9.01.1984. Through the said partition deed, Smt. Leela Sapalyathi,daughter of Smt. Korapalu Sapalyathi, allegedly came to hold a share of1983 sq. mts. of land, including land to the extent of 30 cents fallingunder Survey No. 53/3A. Likewise, the other nine children of Smt.GKorapalu Sapalyathi and Smt. Nemu Sapalyathi are also said to havegot their share of the joint family property through the said partitiondeed.

3. The Urban Land (Ceiling and Regulation) Act, 1976(hereinafter, ‘Principal Act’) came into force in Karnataka on 17.02.1976.H

Padmanabha, one of the seven children of Smt. Nemu Sapalyathi, fileda statement under Section 6(1) of the Principal Act on 15.06.1984declaring the particulars of the joint family property. Thereafter, theDeputy Commissioner and Competent Authority, Mangalore UrbanAgglomeration (Respondent No. 2 herein; hereinafter, ‘CompetentAuthority’) issued a draft statement under Section 8(1) of the PrincipalAct to the declarant, i.e., Padmanabha to surrender excess vacantland of 9,489.48 sq. mts, which included land falling within SurveyNo. 53/3A. In response to the said notice, Padmanabha filed his objectionson 1.07.1985 stating that the property belonged to his late mother andher sister and that after their death, the joint family property had beendivided through the aforementioned partition deed. He further statedthat the individual share of each of the children subsequent to the partitionwas within the ceiling limit prescribed under the Principal Act.

4. On 5.12.1994, the Competent Authority passed an order holdingthat the partition deed having been effected on 9.01.1984, i.e., subsequentto the commencement of the Principal Act, the same could not beconsidered as per Section 42 of the Principal Act. Thus, the CompetentAuthority directed that an extent of 5,210.10 sq. mts. of land in Ullalvillage held by the declarant be treated as excess vacant land to besurrendered. Subsequently, on 16.10.1996, the Competent Authoritypassed an award fixing compensation for the said excess land atRs.15,630/-. In the said award, it was stated that Gazette notificationwas made in respect of acquisition of the land on 27.10.1995 and22.1.1996 as per the provisions of Section 10(1) and 10(3) of the PrincipalAct.

5. It is the Appellant’s case that he had executed a sale deed on26.03.1994 with Smt. Leela Sapalyathi whereby he purchased a portionof Survey No. 53/3A measuring 14 cents comprising an old house D.No. 20-6 (hereinafter, ‘suit property’). The Appellant claims that he tookpossession of the suit property on the date of purchase and has been inpossession till date. The Appellant further contends that after the saidpurchase, the suit property was mutated in his name. In this regard, hehas produced copies of the Record of Rights, Tenancy and Crops (‘RTC’)for the years 1993-1994 and 1994-1995. The Appellant states that hewas unaware of the Competent Authority’s orders dated 5.12.1994 and16.10.1996 mentioned supra. In April 2001, the Appellant wished toundertake renovation of the house on the suit property and hence, AB

C

D

E

F

AB

C

D

E

F

G

H

Aapproached the village accountant for the latest copy of the RTC. It wasat this stage that he noticed that the Government’s name had been enteredin the RTC. Upon inquiry, the Appellant was apprised of the proceedingsunder the Principal Act and the subsequent orders passed by theCompetent Authority. B6. 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 theRTC, inter alia on the grounds that the Competent Authority had notissued notice to the Appellant regarding taking of possession of the suitproperty. That, in any case, the Competent Authority had not takenCphysical possession of the suit property as on the date of commencementof the Repeal Act. Hence, as per the provisions of the Repeal Act, theproceedings would abate and the Competent Authority could not takefurther action under the Principal Act. The said petition was rejected bythe Competent Authority vide order dated 12.06.2001. D

7. Thereafter, the Appellant approached the High Court by wayof Writ Petition No. 35449/2001 which was dismissed vide order dated21.10.2003. The Appellant’s Writ Appeal No. 7758/2003 [ULC] beforethe Division Bench of the High Court was also dismissed vide impugnedorder dated 26.03.2009 with certain observations. Aggrieved, theEAppellant 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:

F(i) That vide partition deed dated 9.01.1984, Smt. Leela Sapalyathiobtained 1983 sq. mts. of land in the joint family property which consistedof a residential house as well. As per Schedule 1, Category D of thePrincipal Act, a person is entitled to hold 2000 sq. mts. of land. In suchcase, the Competent Authority erred in concluding that the declarantPadmanabha holds excess land where in fact Survey No. 53/3A hasGfallen to the share of Leela Sapalyathi who is the Appellant’s vendor. Infact, in light of the partition deed, Padmanbha, has no right to file thedeclaration under Section 6(1) of the Principal Act in respect of the suitproperty, and therefore, the entire proceedings are vitiated;

(ii) That the order dated 5.12.1994 was passed by the CompetentHAuthority without issuing notice to the Appellant or his vendor, i.e., Smt.

Leela Sapalyathi and that the said proceedings under the Principal Actwere carried out behind their backs;

(iii) That the declaration under Section 6(1) of the Principal Acthad been filed by Padmanabha way back on 15.06.1984 and his objectionswere filed on 1.07.1985. However, the Competent Authority passed itsorder dated 05.12.1994 after 9 years without issuing notice to any of the10 members of the joint family;

(iv) That it is not the case of the Respondents that compensationhad been paid. Since neither compensation had been paid nor possessionbeen taken on the date of coming into force of the Repeal Act, i.e., on8.07.1999, the orders passed by the Competent Authority under thePrincipal Act have abated.

Respondents’ Submissions:

9. The Competent Authority’s contentions may be summarised asfollows:

(i) That an extent of 0.57 acre in Survey No. 53/3A and 0.71¾acre in Survey No. 53/3B2 of Ullal Village have been declared excessas per Section 10(3) of the Principal Act on the basis of the declarationfiled by Padmanabha under Section 6(1) of the Principal Act on15.06.1984. Hence, all transactions made after the said date, i.e., sale ofsuit property to the Appellant, without the permission of the CompetentAuthority are null and void, as per Section 42 of the Principal Act;

(ii) That after the issuance of notification under Section 10(3) ofthe Principal Act, the suit property vests with the Government free fromall encumbrances. Accordingly, the necessary entries were made in theGovernment’s name in the RTC. Hence, the Appellant’s contentions arebaseless and may be overruled;

(iii) That the declarant Padmanabha was given the opportunity toput forth his objections and the same were considered by the CompetentAuthority before passing orders under Section 8(4) of the Principal Act.The partition deed was affected on 9.01.1984, i.e., subsequent to thecommencement of the Principal Act and the same cannot be consideredas per Section 42 of the Principal Act;

(iv) Since the Appellant had not filed the declaration under Section6(1) of the Principal Act, the question of issue of notice to him does notarise; AB

C

D

E

F

G

H

A(v) The Government had taken possession of the suit property on12.07.1996 as per Section 10(6) of the Principal Act.

(vi) The order dated 5.12.1994 passed by the Competent Authorityis well within jurisdiction. The declaration filed by Padmanabha wasenquired into properly and decided on merit. Proper notices were issuedBto the declarant at all stages. The Appellant does not have any right overthe excess land.

III. This Court’s Analysis

10. Having undertaken a thorough perusal of the documents andsubmissions on record, we find ourselves unable to completely affirmCthe impugned judgment dated 26.03.2009 of the Division Bench. Beforeproceeding to lay down our conclusions, it may be useful to first refer tothe findings of the learned Single Judge and the learned Division Bench.

11. The learned Single Judge dismissed the Appellant’s writ petitionon the sole ground that the partition deed dated 9.01.1984, that theDAppellant had heavily relied on in furtherance of his submissions, wasnot produced before the Court. The Single Judge observed as follows:

“4. It is relevant to observe here that the petitioner being the objector before the respondent no.2 did not produce any proof of partitionin respect of the subject property fallen to the share of the vendorEto succeed to execute the sale deed in the month of March, 1994.He would have done definitely that when he had made out a casebefore the respondent no.2. Even before this Court, the petitionerhad not filed any document as that of the partition deed to showthat the subject property was the subject matter of partition.FTherefore, it appears to me that the petition fails on that scorealone. In view of that, the petition does not merit any consideration.The writ petition is therefore dismissed as the same is devoid ofmerit; I order accordingly.”

12. The Division Bench, on the other hand, while dismissing theAppellant’s writ appeal, observed that regardless of whether the declarantGPadmanabha and his family members had effected partition after thePrincipal Act commenced, the concerned land would still be subject tothe proceedings initiated under the Principal Act. The Division Benchfurther observed that the Appellant has not established that he acquiredany interest in the suit property prior to the Principal Act’s commencementHor to the filing of the declaration by Padmanabha, and thus, there was no obligation on the Competent Authority to issue notice to the Appellantand afford him a hearing before passing the order.

13. At this juncture, it is pertinent to refer to Section 6 of thePrincipal Act, which requires that a statement be filed before theCompetent Authority by ‘every person holding vacant land in excessof the ceiling limit at the commencement of the Act…’ (emphasissupplied). Thus, the determination of ‘excess land’ is to be madeconsidering the status of the land at the time of commencement of thePrincipal Act, and not at the time of filing of the declaration. In ourconsidered opinion, since it is an admitted fact that the partition, if any,was only effected after the Principal Act’s commencement, the DivisionBench was correct in holding that the partition deed dated 9.01.1984would not affect the validity of the Competent Authority’s determinationof excess land owned by the joint family at the time of commencementof the Act. Hence, to this limited extent, we concur with the findings ofthe Division Bench.

14. We have also given due consideration to the provisions ofSection 8 and Section 9 of the Principal Act, and in our opinion, theaforementioned Sections make it incumbent on the Competent Authorityto issue notice to or provide an opportunity to be heard only to the ‘personconcerned’, i.e., the person who has filed the statement under Section 6of the Principal Act. The claims of all other persons interested in thevacant land are to be considered through issuing a Gazetted notificationto that effect as per Section 10(1) of the Principal Act. The CompetentAuthority had duly issued such notification on 27.10.1995.

15. Now, coming to the question of possession, it is the Appellant’scontention that, subsequent to the declaration, he acquired the suit propertyfrom Smt. Leela Sapalyathi, by sale agreement dated 26.03.1994, andcontinues to be in possession of it. That Smt. Leela Sapalyathi wascompetent 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 partitiondeed dated 9.01.1984. We find that this argument is relevant in light ofthe passage of the Repeal Act, with effect from 8.07.1999. Section 4 ofthe Repeal Act provides as follows:

“4. All proceedings relating to any order made or purported to bemade under the principal Act pending immediately before thecommencement of this Act, before any court, tribunal or otherauthority shall abate:

AB

C

DE

F

G

H

AProvided that this section shall not apply to the proceedings relatingto sections 11,12,13 and 14 of the principal Act in so far as suchproceedings are relatable to the land, possession of which hasbeen taken over by the State Government or any person dulyauthorised by the State Government in this behalf or by thecompetent authority.”B

Section 3(1)(a) of the Repeal Act, which provides for a savingsclause, throws light on this, by stating that the repeal shall not affect thevesting of any vacant land in the State Government by the Principal Act,the possession of which has been taken over by the concerned StateGovernment. This is further qualified in Section 3(2) which states thatCvacant land vested in the State Government by the Principal Act, thepossession for which has not been taken over, shall be restored onlyonce any compensation paid to the land-holder has been returned.

16. It is clear from the aforementioned legislative provisions thatthe question of current possession of the suit property is absolutely materialDto a full adjudication of the controversy before us. This is because, if theAppellant does enjoy possession, as claimed by him, any proceedingsfor any excess land under the Principal Act are liable to abate, as perSection 3 and Section 4 of the Repeal Act, and the Appellant would beentitled to ownership and possession over the suit property. However,Eneither the partition deed dated 9.01.1984 that is alleged to have conferredtitle on Smt. Leela Sapalyathi, nor the sale deed dated 26.03.1994 thatpurportedly passed on the title to the Appellant, have been producedbefore this Court. There is, thus, nothing on record to establish Appellant’spurchase of, possession of, or interest in the suit property.

F17. Whereas the Appellant maintains that he has locus standi topray for abatement of the proceedings which are the subject matter ofthis appeal, being in possession of the suit property; the CompetentAuthority’s order dated 16.10.1996 declaring the award of compensationfor the excess land, states that the Competent Authority had taken overpossession of the suit property with effect from 12.07.1996, i.e., beforeGthe passage of the Repeal Act. In our opinion, there is nothing on record,that conclusively establishes possession of the suit property either by theCompetent Authority or the Appellant herein. Given the conflictingaverments made by the parties, this is a pure question of fact.

18. In this regard, the Division Bench in the impugned order hasHobserved the following:

“5. It is contended that the possession of the land is not taken bythe Government in spite of the said order and the appellantcontinues to be in possession. It is clear from the repealed Act, ifthe possession has not been taken after the proceedings initiatedunder the Act, the order is ceased to have any effect and theperson in possession is continued to be the owner. A perusal ofthe order discloses that 5 Sy. Nos. were involved in the declaration,from the order it is not possible to make out in which survey numberthe excess land falls. If there is no indication of the said excessland falling within any particular survey number and if theauthorities have proceeded to take possession, it would not be inconsonance with the order. If really possession has not yet beentaken under the repealed Act, the petitioner is entitled to continuein possession of the land. All these matter cannot be the subjectmatter of the writ petition filed challenging the order under Section10 filed by the declarant.Notwithstanding the dismissal of thewrit appeal or writ petition, it is open to the appellant/petitioner towork out his remedy in accordance with law...” (emphasis supplied)

19. We find ourselves unable to agree with the Division Bench onthis aspect of the matter, and thus set aside the impugned judgment. Itwas incumbent on the Division Bench to enquire into and settle thequestions of fact arising from the present controversy, such as whetherthe Appellant’s claim over the suit property was valid, whether he wasin actual physical possession of the suit property, and resultantly, whetherhe had the locus standi to pray for abatement of the proceedings underthe Repeal Act. This would have settled finally the question of abatementof the proceedings, and prevented the inefficient proliferation of furtherlitigation between the parties.

IV. Conclusions and Directions

20. Since the learned Single Judge has already given a definitefactual finding as to the question of the Appellant’s ownership andpossession 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 SingleJudge.

21. Instead, we direct the matter to be remitted to the DivisionBench of the Karnataka High Court to consider the case afresh. Allquestions of fact outlined above are to remain open, and the parties are ABC

D

E

F

G

H

Agiven liberty to place on record additional evidence not made a part ofthe proceedings heretofore. Since the other original owners of the jointfamily property have accepted the orders of the Competent Authority, inso far as they have not questioned the said orders, the Division Benchwill confine its findings only with regard to the issue of possession of thesuit property.B22. The appeal stands disposed of accordingly. No order as tocosts.

C

Divya Pandey

Appeal disposed of.

D

E

F

G

H