STATE OF ORISSA & ORS. versus SAKHI BEWA (DEAD) THROUGH LRS. on 23 November 2021

[2021] 10 S.C.R. 1105

STATE OF ORISSA & ORS.

v.

SAKHI BEWA (DEAD) THROUGH LRS.(Civil Appeal No. 6490 of 2014)

NOVEMBER 23, 2021

[M. R. SHAH AND SANJIV KHANNA, JJ.]

Urban Land (Ceiling and Regulation) Repeal Act, 1999 – ss.3 and 4 – Applicability of – Land acquisition proceedings underUrban Land (Ceiling and Regulation) Act 1976 – Land in questionwas declared as access vacant land by Competent Authority as wellas Appellate authority – Writ Petition against the orders of theauthorities was dismissed for non-prosecution – Restorationapplication dismissed observing that fresh petition might be filed, ifpermissible – The fresh writ petition High Court by interim orderdirected that the authorities might take over the possession of thevacant surplus land – The State took the stand that possession ofthe surplus land had already been taken over on 25.04.1988 –However, the High Court allowed the petition on the ground thatthe 1976 Act had been repealed and the compensation for surplusland had not been paid – The State filed appeal before the SupremeCourt – Held: Before declaring the proceedings as having abatedin view of ss. 3 and 4 of 1999 Act, it has to be considered anddecided whether possession of the surplus land has been takenover by the Government – In absence of such possession, theproceedings cannot be declared as having abated – In the impugnedjudgment High Court has failed to consider and has not given anyspecific finding on the aspect of possession – Failure to pay thecompensation, cannot raise presumption as to failure of possession– Matter remanded to High Court to decide the same afresh – HighCourt is also directed to consider the maintainability of the freshwrit petition as the previous writ petition was dismissed for non-prosecution.

Allowing the appeal, the Court

HELD: 1. The impugned judgment and order passed bythe High Court is unsustainable in law as well as on facts. It cannotbe disputed that in the impugned judgment and order the High

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ACourt has not at all considered the merits of the case and hasquashed and set aside the order passed by the CompetentAuthority dated 01.03.1984 and the order passed by the FirstAppellate Court – Board of Revenue dated 05.05.1987 solely onthe ground that the Act, 1976 has been repealed and that thecompensation for the surplus land has not been paid. The HighBCourt has noted that in the resolution adopting the Repeal Act,1999, it has been declared that no compensation should be paidfor lands, possession of which has not been taken over by theState Government after vesting under Section 10(3) of the Act,1976 and the legal process initiated under the said Act will alsoCbe closed. [Para 4][1112-B-E]

2. The High Court has not at all properly appreciated andconsidered Sections 3 and 4 of the Repeal Act, 1999. A fair readingof Sections 3 and 4 of the Repeal Act, 1999 makes it clear that allproceedings relating to any order made or purported to be madeDunder the principal Act (Act, 1976) pending immediately beforethe commencement of the Repeal Act, 1999, before any court,tribunal or other authority shall abate. Section 4 of the RepealAct shall not apply provided possession of land has been takenover by the State Government or any person duly authorised bythe State Government in this behalf or by the competent authority.

ETherefore, if the possession of the surplus land/land has beentaken over by the State Government or any person duly authorisedby the State Government in this behalf or by the competentauthority, in that case, the proceedings relating to any order madeunder the principal Act, 1976 shall not abate, meaning thereby Fthat the Repeal Act, 1999 shall not affect all those proceedingswith respect to the land of which the possession has been takenover. Therefore, before declaring the proceedings as havingabated in view of Sections 3 and 4 of the Repeal Act, 1999, it hasto be considered and decided whether possession of the surplus

land/land has been taken over by the State Government or anyGperson duly authorised by the State Government in this behalf orby the competent authority or not. If it is found and held that thepossession of the surplus land has been taken over, in that case,the proceedings shall not be declared as having been abated.[Paras 4.1 and 4.2][1112-F-G; 1113-F-H; 1114-A-C]H

3. In the present case, in the impugned judgment and order,the Division Bench of the High Court has not at all consideredand/or given any specific findings on the possession being takenover by the Tehsildar on 25.04.1988. There is no discussion atall on the aspect whether the possession taken over by theTehsildar. It appears that solely on the ground that the paymentof compensation has not been made and ad interim order wasoperating, the High Court has quashed and set aside the orderspassed by the Competent Authority as well as the First AppellateCourt. However, the High Court has not properly appreciatedand considered the fact that the payment of compensation hasnothing to do with the taking over of possession. Payment ofcompensation under the Act, 1976 and taking over the possessionafter the notification issued under Section 10(3)/10(5) of the Act,1976, both are different and distinct. Even assuming that thecompensation has not been paid, in that case also, it cannot bepresumed that the possession was not taken over. [Paras 4.3 and4.4][1114-C-E]

4. The Division Bench of the High Court has also misreadand misinterpreted the resolution/notification dated 24.07.2002.As per the said clarification dated 24.07.2002 no compensationshould be paid for land, possession of which has not been takenover by the Government after vesting u/s. 10(3) of the UrbanLand (Ceiling & Regulation) Act, 1976 and the legal processinitiated under the said Act is also to be closed. As per clause (ii)where the possession of the land has been taken over and thecompensation has not been paid or partly paid, steps should betaken for payment of compensation. Therefore, even as per thesaid clarification dated 24.07.2002, where the possession of theland has been taken over and the compensation has not beenpaid or party paid, the steps were required to be taken for paymentof compensation. It does not speak and/or clarify that if thecompensation is not paid, the possession is presumed to be nottaken and/or the legal process initiated under the Act, 1976 willbe closed. The High Court has misread and misinterpreted theclarification notification dated 24.07.2002 and even the resolutiondated 05.04.2002. [Paras 4.4 and 4.5][1114-F; 1115-B-E]

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[2021] 10 S.C.R.

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A5. Even the Division Bench of the High Court has also notconsidered the interim order dated 10.06.1994 in its true spirit.In the ex parte ad interim order dated 10.06.1994, the High Courthas ordered that the authorities may take over possession of thevacant surplus land but will not change the nature or character ofthe land until further orders from the court. The interim order,Bas worded, is not conclusive proof either way on the question ofpossession. [Para 4.6][1115-F-G]

6. Even in the impugned judgment and order, the DivisionBench of the High Court has observed that since the Act, 1976has been repealed, the land belonging to the original writCpetitioners shall be given back to them. Meaning thereby, it canbe said that even according to the High Court also the possessionof the surplus land was not with the original writ petitioners.Whereas, this observation is not a finding on whether possessionwas taken. Be that as it may, as the High Court has not at allDdealt with the petition on merits, the impugned judgment andorder passed by the High Court cannot be sustained and the samedeserves to be quashed and set aside and the writ petition has tobe remanded to the High Court to decide the same afresh.The question whether possession was taken over beingprimordial must be examined with acuity and thoroughly.E[Para 4.7][1116-A-D]

7. The High Court is also to consider submissions on behalfof the State on the maintainability of the subsequent writ petition,as the earlier writ petition being OJC No.2550 of 1987 wasdismissed for non-prosecution in which also the order passed byFthe Competent Authority dated 01.03.1984 and the order passedby the Board of Revenue dated 05.05.1987 were under challenge,which were also the subject matter of the subsequent writ petitionbeing OJC No.4048 of 1994. The High Court is also to considerthe observations made by the High court in the order passed inrestoration application being M.J.C. No.10 of 1994 filed forGrestoring the OJC No.2550 of 1987 by which the High Courtdismissed the restoration application with observation that theoriginal writ petitioner may file a fresh petition, if permissible.Therefore, the Division Bench of the High Court has also tointerpret and consider the expression “if permissible”.H[Para 5][1116-F-H; 1117-A]

CIVIL APPELLATE JURISDICTION : Civil Appeal No.6490of 2014.

From the Judgment and Order dated 30.07.2009 of the High Courtof Orissa at Cuttack in OJC No.4048 of 1994.

Sibo Sankar Mishra, Adv. for the Appellants.

Dr. Menaka Guruswamy, Sr. Adv., Ms. Praveena Gautam, PawanShukla, Raja Ram, Aman S. Sharma, Pranav Monga, Advs. for theRespondents.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 30.07.2009 passed by the High Court of Orissa in OJCNo.4048 of 1994 by which the High Court has allowed the said writpetition preferred by the respondents herein – original writ petitioners –original land owners and has quashed and set aside the orders passed bythe Competent Authority under the Urban Land (Ceiling and Regulation)Act, 1976 (hereinafter referred to as “the Act, 1976”) declaring Ac.0.865-7 area of the land as excess vacant land under the provisions ofthe Act, 1976, the State has preferred the present appeal.

2. The facts leading to the present appeal in nutshell are as under:- 2.1That the proceedings under the provisions of the Act, 1976were initiated with respect to the holdings of the originalwrit petitioner No.1 – Sakhi Bewa. By order dated01.03.1984, the Competent Authority under the Act, 1976declared Ac. 0.865-7 as excess vacant land. Final statementunder Section 9 of the Act, 1976 was issued on 27.03.1984.

2.2That thereafter a notification under Section 10(1) of theAct, 1976 was issued on 30.04.1984 with respect to theland declared as excess vacant land. The original landownersfiled an appeal before the Appellate Authority in the monthof May, 1984. A declaration under Section 10(3) of the Act,1976 was published on 26.10.1984. That thereafter theCompetent Authority sent a notice dated 30.11.1984 underSection 10(5) of the Act, 1976 to the respondents – originallandowners to deliver vacant possession of the excess vacantland to Tehsildar.

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A2.3That an appeal was preferred by the original landownersagainst the order passed by the Competent Authoritydeclaring Ac. 0.865-7 land as excess vacant land, whichcame to be dismissed by the Board of Revenue – AppellateCourt vide order dated 05.05.1987.

B2.4That according to the State the Tehsildar, Sadar, Cuttack,has taken over the possession of the land on 25.04.1988.The respondents – original writ petitioners filed a writ petitionbeing OJC No.2550 of 1987 before the High Courtchallenging the order passed by the Competent Authoritydated 01.03.1984 as well as the order passed by the FirstCAppellate Court – Board of Revenue. The said writ petitioncame to be dismissed for non-prosecution on 01.11.1991.After a period of approximately three years a restorationapplication was filed being M.J.C. No.10 of 1994. But thesame came to be dismissed by the Division Bench byDobserving that the grounds for the delay are far fromsatisfactory and that there is no justification either forcondoning the delay and annulling the earlier order ofdismissal. However, the Division Bench observed that thepetitioner may file a fresh petition, if permissible.Thatthereafter the respondents herein filed a fresh petition beforeEthe High Court being OJC No.4048 of 1994 again challengingthe order passed by the competent authority dated 01.03.1984as well as the order passed by the Board of Revenue dated05.05.1987 which were as such subject matter of writpetition being OJC No.2550 of 1987, which was dismissed D

for non-prosecution on 01.11.1991. That an exparte adinterim order was passed by the High Court on 10.06.1994and it was ordered that the authorities may take over thepossession of the vacant surplus land but will not changethe nature or character of the land until further orders fromthe court. At this stage, at the cost of repetition it is observedthat all throughout, the case on behalf of State was thateven prior to said exparte ad interim order, the possessionof the surplus land was already taken over by the Tehsildaron 25.04.1988. A counter was filed on behalf of Stateopposing the writ petition in which it was also specifically F

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pointed out that the possession of the surplus land has beentaken over by the Tehsildar on 25.04.1988. The respondents,however, dispute the said position, their contention beingthat they have always been in possession of the propertyand the order dated 25.04.1988 is a paper order and doesnot reflect the true and correct position. Without commentingon the merits, it would be relevant to note here that theorder dated 25.04.1988 does refer to demarcation by theauthorities and that the surplus land was taken over by F.I.Sadar II and Amin Sri G.C. Pattanaik on 02.04.1988, butthis being a question of fact, it would have to be examinedand ascertained. The ascertainment of this fact is necessaryin view of the enactment of the Repeal Act, as noticedbelow.

2.5That thereafter the Act, 1976 came to be repealed by theUrban Land (Ceiling and Regulation) Repeal Act, 1999(hereinafter referred to as “the Repeal Act, 1999”) videnotification dated 22.03.1999. That vide resolution dated05.04.2002, the State of Orissa adopted the Urban Land(Ceiling and Regulation) Repeal Act, 1999.

2.6That thereafter on misreading and misinterpretation of thenotification / communication dated 24.07.2002 and withouteven dealing with the case on behalf of the State that thepossession of the surplus land has already been taken overon 25.04.1988 and solely on the ground that compensationfor the surplus land has not been paid, the Division Benchof the High Court by the impugned judgment and order hasquashed and set aside the order passed by the CompetentAuthority dated 01.03.1984 as well as the order passed bythe First Appellate Court – Board of Revenue dated05.05.1987. The High Court also further observed that asthe Act, 1976 stands repealed, the lands belonging to therespondents- landowners shall be given back to them.

2.7Feeling aggrieved and dissatisfied with the impugnedjudgment and order passed by the Division Bench of theHigh Court of Orissa, the State has preferred the presentappeal.

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A3. We have heard Shri Sibo Sankar Mishra, learned counselappearing on behalf of the State and Dr. Menaka Guruswamy, learnedsenior counsel appearing on behalf of the respondents.

4. Having heard the learned counsel appearing for the respectiveparties and having gone through and considered the impugned judgmentBand order passed by the Division Bench of the High Court andchronological dates and events narrated hereinabove, we are of theopinion that the impugned judgment and order passed by the High Courtis unsustainable in law as well as on facts. It cannot be disputed that inthe impugned judgment and order the High Court has not at all consideredthe merits of the case and has quashed and set aside the order passedCby the Competent Authority dated 01.03.1984 and the order passed bythe First Appellate Court – Board of Revenue dated 05.05.1987 solelyon the ground that the Act, 1976 has been repealed and that thecompensation for the surplus land has not been paid. The High Courthas noted that in the resolution adopting the Repeal Act, 1999, it hasDbeen declared that no compensation should be paid for lands, possessionof which has not been taken over by the State Government after vestingunder Section 10(3) of the Act, 1976 and the legal process initiated underthe said Act will also be closed.

4.1 That it appears and though it is not clear from paragraph 8,Ewhich is the only paragraph, in which some observations are made bythe High Court, the High Court has observed that as an interim orderwas operative and nothing has been averred regarding payment ofcompensation during pendency of the writ petition, no useful purposewould be served to remand the matter since the Act, 1976 has beenrepealed and consequently, the High Court has quashed and set asideFthe orders passed by the Competent Authority as well as the FirstAppellate Court. However, the High Court has not at all properlyappreciated and considered Sections 3 and 4 of the Repeal Act, 1999.Sections 3 and 4 of the Repeal Act, 1999 read as under:- “3.Savings.—(1)The repeal of the principal Act shall not affect—G

(a) the vesting of any vacant land under sub-section (3) ofSection 10, possession of which has been taken over by theState Government or any person duly authorised by the StateGovernment in this behalf or by the competent authority; H

(b) the validity of any order granting exemption under sub-section (1) of Section 20 or any action taken thereunder,notwithstanding any judgment of any court to the contrary; A

(c) any payment made to the State Government as a conditionfor granting exemption under sub-section (1) of Section 20.

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(2) Where—

(a) any land is deemed to have vested in the State Governmentunder sub-section (3) of Section 10 of the principal Act butpossession of which has not been taken over by the StateGovernment or any person duly authorised by the StateCGovernment in this behalf or by the competent authority;and (b)any amount has been paid by the State Government withrespect to such land then, such land shall not be restored unless the amount paid, ifany, has been refunded to the State Government.

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4. Abatement of legal proceedings.—All proceedings relatingto any order made or purported to be made under the principalAct pending immediately before the commencement of this Act,before any court, tribunal or other authority shall abate:

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Provided 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.”

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4.2 A fair reading of Sections 3 and 4 of the Repeal Act, 1999makes it clear that all proceedings relating to any order made or purportedto be made under the principal Act (Act, 1976) pending immediatelybefore the commencement of the Repeal Act, 1999, before any court,tribunal or other authority shall abate. Section 4 of the Repeal Act shallnot apply provided possession of land has been taken over by the StateGovernment or any person duly authorised by the State Government inthis behalf or by the competent authority.Therefore, if the possession ofthe surplus land/land has been taken over by the State Government orany person duly authorised by the State Government in this behalf or by G

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Athe competent authority, in that case, the proceedings relating to anyorder made under the principal Act, 1976 shall not abate, meaning therebythat the Repeal Act, 1999 shall not affect all those proceedings withrespect to the land of which the possession has been taken over.Therefore, before declaring the proceedings as having abated in view ofSections 3 and 4 of the Repeal Act, 1999, it has to be considered andBdecided whether possession of the surplus land/land has been taken overby the State Government or any person duly authorised by the StateGovernment in this behalf or by the competent authority or not. If it isfound and held that the possession of the surplus land has been takenover, in that case, the proceedings shall not be declared as having beenCabated.

4.3 In the present case, in the impugned judgment and order, theDivision Bench of the High Court has not at all considered and/or givenany specific findings on the possession being taken over by the Tehsildaron 25.04.1988. There is no discussion at all on the aspect whether theDpossession taken over by the Tehsildar. It appears that solely on theground that the payment of compensation has not been made and adinterim order was operating, the High Court has quashed and set asidethe orders passed by the Competent Authority as well as the FirstAppellate Court. However, the High Court has not properly appreciatedand considered the fact that the payment of compensation has nothingEto do with the taking over of possession. Payment of compensation underthe Act, 1976 and taking over the possession after the notification issuedunder Section 10(3)/10(5) of the Act, 1976, both are different and distinct.

4.4 Even assuming that the compensation has not been paid, inthat case also, it cannot be presumed that the possession was not takenFover. It appears that even the Division Bench of the High Court has alsomisread and misinterpreted the resolution/notification dated 24.07.2002.By the resolution/notification dated 24.07.2002, the following clarificationswere issued by the State Government:- “Thus as per the provisions laid down under the said Repeal Act,Gthe following clarifications are issued.

i) No compensation should be paid for land, possession ofwhich has not been taken over by the Govt. after vestingU/s. 10(3) of the Urban Land (Ceiling & Regulation) Act,1976. The Legal process initiated under the said Act willHalso be closed.

ii)Where possession of land has been taken over andAcompensation has not been paid or partly paid, steps shouldbe taken for payment of compensation.

iii)Continuance of Govt. Control over the exempted land is nomore required with effect from 5.4.2002.”

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4.5 As per the said clarification dated 24.07.2002 no compensationshould be paid for land, possession of which has not been taken over bythe Government after vesting U/s. 10(3) of the Urban Land (Ceiling &Regulation) Act, 1976 and the legal process initiated under the said Actis also to be closed. As per clause (ii) where the possession of the landhas been taken over and the compensation has not been paid or partlypaid, steps should be taken for payment of compensation. Therefore,even as per the said clarification dated 24.07.2002, where the possessionof the land has been taken over and the compensation has not been paidor party paid, the steps were required to be taken for payment ofcompensation. It does not speak and/or clarify that if the compensationis not paid, the possession is presumed to be not taken and/or the legalprocess initiated under the Act, 1976 will be closed. If we considerparagraphs 7 and 8 of the impugned judgment and order, it appears thatthe High Court has misread and misinterpreted the clarification notificationdated 24.07.2002 and even the resolution dated 05.04.2002. Though theresolution/clarification dated 24.07.2002 is in two parts reproducedhereinabove, the High Court has not at all considered and dealt with part(ii) of the clarification namely “where the possession of the land hasbeen taken over and the compensation has not been paid or partly paid,steps should be taken for payment of compensation.”

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4.6 Even the Division Bench of the High Court has also notconsidered the interim order dated 10.06.1994 in its true spirit. In the exparte ad interim order dated 10.06.1994, the High Court has orderedthat the authorities may take over possession of the vacant surplus landbut will not change the nature or character of the land until further ordersfrom the court.

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4.7 At this stage, it is required to be noted that according to theState, the possession of the surplus land was already taken over on25.04.1988 and all throughout it was the case on behalf of the State thatthe possession of surplus land was taken over on 25.04.1988. At thisstage, it is also required to be noted that interim order dated 10.06.1994was an ex parte ad interim order. The interim order, as worded, is not H

Aconclusive proof either way on the question of possession. Even in theimpugned judgment and order, the Division Bench of the High Court hasobserved that since the Act, 1976 has been repealed, the land belongingto the original writ petitioners shall be given back to them. Meaningthereby, it can be said that even according to the High Court also thepossession of the surplus land was not with the original writ petitioners.BWhereas, this observation is not a finding on whether possession wastaken. Be that as it may, as the High Court has not at all dealt with thepetition on merits and has allowed the writ petition on the aforesaidgrounds only, the impugned judgment and order passed by the High Courtcannot be sustained and the same deserves to be quashed and set asideCand the writ petition has to be remanded to the High Court to decide thesame afresh and to consider the aspects stated hereinabove. Theobservations and views expressed by us are tentative and prima facie.The question whether possession was taken over being primordial mustbe examined with acuity and thoroughly.

D5. In view of the above and for the reasons stated above, thepresent appeal succeeds. The impugned judgment and order passed bythe High Court dated 30.07.2009 passed in OJC No.4048 of 1994 ishereby quashed and set aside. Petition is remanded to the Division Benchof the High Court to consider the writ petition afresh. The Division Benchof the High Court to consider the case on behalf of the State that theEpossession of the surplus land was already taken over by the Tehsildaron 25.04.1988. In case it is held that the respondents are not entitled tothe benefit of the Repeal Act, the High Court would then considersubmissions on behalf of the State on maintainability of the subsequentwrit petition.FThe High Court is also to consider submissions on behalf of theState on the maintainability of the subsequent writ petition, as the earlierwrit petition being OJC No.2550 of 1987 was dismissed for non-prosecution in which also the order passed by the Competent Authoritydated 01.03.1984 and the order passed by the Board of Revenue dated05.05.1987 were under challenge, which were also the subject matter ofGthe subsequent writ petition being OJC No.4048 of 1994. The High Courtis also to consider the observations made by the High court in the orderpassed in restoration application being M.J.C. No.10 of 1994 filed forrestoring the OJC No.2550 of 1987 by which the High Court dismissedthe restoration application with observation that the original writ petitionerHmay file a fresh petition, if permissible. Therefore, the Division Bench of the High Court has also to interpret and consider the expression “ifpermissible”.

On remand, we request the High Court to finally decide and disposeof the writ petition being OJC No.4048 of 1994 as ordered to be restoredto the file of the High Court and we request the High Court to decideand dispose of the writ petition expeditiously preferably within a periodof six months from the date of receipt of the order. It is made clear andobserved that all the contentions which may be available to the respectiveparties are kept open, to be dealt with and considered by the DivisionBench of the High Court in accordance with law. It is also observed thatthe High Court shall decide all issues including issues, which are observedhereinabove.

Present appeal is allowed accordingly with costs, which isquantified at Rs.50,000/- to be deposited by the respondents with theNational Legal Services Authority within a period of four weeks fromtoday. Pending applications, if any, also stand disposed of.

Ankit Gyan

Appeal allowed.

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