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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2069 OF 2014

[Arising out of SLP (C) No.14690 of 2011)

Gajanan Kamlya Patil .. Appellant

Versus

Addl. Collector & Comp.

Auth. & Ors. .. Respondents

WITH

CIVIL APPEAL NOS. 2070-2071 OF 2014

[Arising out of SLP (C) Nos.14904-14905 of 2011)

JUDGMENT

K. S. RADHAKRISHNAN, J.

1. Leave granted.

2. We are, in these appeals, concerned with the

question whether the High Court was justified in

relegating the parties to file Civil Suits to recover the

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lands covered by Survey No.54/4 and Survey No.53/3,

both admeasuring 1870 sq. meters, situated at Village

Kasarwadavli, Ghodbunder Road, Taluka and Distt.

Thane, so as to get the benefit of Urban Land (Ceiling and

Regulation) Repeal Act, 1999.

3. We may, for the disposal of these appeals, refer to

the facts in Civil Appeal arising out of Special Leave

Petition No.14690 of 2011, treating the same as the

leading case. The Appellant herein was issued a notice

dated 17.2.2005 under Section 10(5) of the Urban Land

(Ceiling and Regulation) Act, 1976 (for short ‘ULC Act’) for

taking possession of the Appellant’s land bearing Survey

Nos.47/10 and 54/4. It was stated in the notice that in

accordance with the notification published in Part-I, Page

No. – Konkan Division Supplementary, dated 12.12.2002,

in the Gazette of Maharashtra, the land notified had been

vested in the Government of Maharashtra and that

Additional Collector and Competent Authority, Thane (for

short “Competent Authority”), had been authorized by the

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State Government to take possession of the land in

question, details of which had been published in the

notification under Section 10(3) and the land be handed

over or possession be given within 30 days from the date

of receipt of the notice. Further, it was also intimated

that if the Appellant had failed to give possession of the

land, necessary action would be taken for taking

possession by application of necessary force.

4. The Appellant, aggrieved by the above-mentioned

notice, filed Writ Petition No.1669 of 2010 before the

Bombay High Court to quash the notice dated 17.2.2005

and also for a declaration, inter alia, that the land

bearing Survey No.54/4 admeasuring 1870 sq. meters is

in the physical possession of the Appellant and would

continue to vest as such with the Appellant as true and

actual owner thereof. The Appellant also sought a

declaration that in view of the Urban Land (Ceiling and

Regulation) Repeal Act, 1999, the proposed action of the

Respondents or State or its authorities for taking

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possession of the land be declared as null and void and

also prayed for other consequential reliefs.

5. The High Court after examining the provisions of

the ULC Act as well as the provisions of the Urban Land

(Ceiling and Regulation) Repeal Act, 1999, and also

taking note of the affidavit filed by the State Government

and by the Mumbai Metropolitan Region Development

Authority (MMRDA) noticed that so far as Survey

No.47/10 is concerned, the possession had not been

taken over by MMRDA. However, as far as land in

Survey No.54/4 was concerned, after noticing that

possession had been taken over, the High Court disposed

of the Petition granting relief to the Appellant in respect

of Survey no.47/10, but so far as Survey No.54/4 is

concerned, as already indicated, the Appellant was

granted liberty to move the Civil Court for establishing

his claim over the property in question.

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6. Shri Shekhar Naphade, learned senior counsel

appearing for the Appellant, submitted that the issue

raised in this case stands fully covered by the judgment

of this Court in State of UP v. Hari Ram (2013) 4 SCC

280 and that the High Court has committed a grave error

in holding that the MMRDA is in possession of the land

in Survey No.54/4 and hence the question as to whether

possession had been legally taken or not has to be

decided by the Civil Court. Learned senior counsel also

submitted that the State of Maharashtra has adopted the

Repeal Act, 1999 on 1.12.2007 and that Respondent No.1

had executed the possession receipt in favour of

Respondent No.3 on 2.7.2008 behind the back of the

Appellant, without following the due process of law.

Learned senior counsel submitted that since possession

had not been taken in accordance with law, the Appellant

is entitled to the benefit of the Repeal Act, 1999, as was

rightly held in respect of Survey No.47/10.

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7. Shri A.S. Bhasme, learned counsel appearing for the

Respondents, on the other hand contended that the High

Court has rightly come to the conclusion that the land in

question had been taken over by MMRDA and being a

disputed question of fact, the same cannot be decided by

the High Court under Section 226 of the Constitution of

India and the only remedy available to the Appellant is to

file a Civil Suit to establish his right since the dispute is

of a civil nature. Learned counsel, therefore, prayed for

dismissal of the appeal.

8. We may, at the outset, point out that almost all the

legal issues urged before us stand covered by the

judgment of the this Court in Hari Ram (supra).

However, reference to few facts is necessary for the

disposal of these appeals. The Competent Authority

published a notification dated 17.1.2000 under Section

10(1) of the ULC Act in the Gazette of Government of

Maharashtra on 15.6.2000, wherein the land held by the

Appellant was shown as the land to be acquired by the

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Government of Maharashtra. Following that, a

notification dated 14.3.2000 under Sub-Section (3) of

Section 10 of the ULC Act was published notifying the

public that the land shown in the schedule therein is

covered and the land in Survey No.54/4 as well would be

considered to be acquired by the Government of

Maharashtra w.e.f. 15.6.2000 and the said land would be

vested with the Government of Maharashtra from the

said date.

9. The Competent Authority then issued yet another

notification dated 2.8.2002 for information of the public

that the land described in the schedule therein which

included the land in Survey No.54/4 as well, have been

considered to be acquired by the Government of

Maharashtra w.e.f. 15.9.2002 and the said land would be

vested for all purposes free from all charges to the

Government of Maharashtra from the said date. The

Competent Authority, as already indicated, issued a show

cause notice dated 17.2.2005 under Sub-Section (5) of

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Section 10 of the ULC Act to the Appellant to hand over

possession of the land in question within 30 days from

the date of receipt of that notice. It was also indicated

therein that if the Appellant failed to give possession of

the land, necessary action would be taken for taking

possession by the application of necessary force.

10. We may indicate that all the above-mentioned

proceedings were initiated under the ULC Act, 1976, but

the said Act was repealed by the Parliament by the Urban

Land (Ceiling and Regulation) Repeal Act, 1999 on

22.3.1999 which came into force w.e.f. 11.1.1999. The

State of Maharashtra vide its notification dated

1.12.2007 adopted the Repeal Act, 1999 w.e.f. 1.12.2007.

After adoption of the Repeal Act, 1999, on 1.12.2007, the

Circle Office Balkum, Taluka & District Thane, executed

“possession receipt” on 2.7.2008 of the land bearing

Survey No.54/4 belonging to the Appellant in favour of

the Chief Surveyor of MMRDA, pursuant to the orders of

the Collector, Thane dated 1.7.2008. No notice,

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admittedly, was given to the Appellants before executing

the possession receipt. In this case, an additional

affidavit dated 29.4.2010 was filed by the Competent

Authority stating that he could not find any document

like Panchanama or possession receipt in respect of the

land covered by Survey No.54/4 and few other Survey

numbers. The operative portion of the affidavit reads as

follows :-

“I have stated in my affidavit in reply dated

20.3.2010 that on 2.7.2008 the Circle Officer
has delivered the possession of the land
bearing Survey No.103/3 area 3890 sq. mtrs.,
3/10 area 3600 sq. mtrs., 98/6 area 1708 sq.
mtrs., 53/3 area 2450 sq. mtrs., 54/4 area
1870 sq. mtrs to the MMRDA. I state that I
have inspected my record, however, I could not
find any document like panchanama or
possession receipt in respect of aforesaid lands
by which its possession was obtained from the
land holder under Urban Land Ceiling Act.”

11. We have another affidavit dated 2.7.2010 by the

Principal Secretary, Urban Development Department,

Government of Maharashtra, wherein he has

categorically stated that the possession had not been

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handed over by the landowner to the Competent

Authority. The operative portion of the same reads as

under :-

“The records of right of the said land have been

mutated in favour of the Government on the
basis of the notification issued under Section
10(3) of the ULC Act. I say and submit that on
enquiry, it is revealed that, though the notice
under Section 10(5) was issued on 17.02.2005
for handing over possession of the surplus
vacant land, the possession of land has not
been handed over by concerned landowner to
the Competent Authority or to his
representative.”

The Affidavit also further reads as under :-

“Therefore, Government was under impression

that since the land has been vested into the
Government as per the notification under
Section 10(3) dated 02.08.2002, the
Government has every right to use the said
land for public purpose. I say that, in the
aforesaid background, the decision was taken
to allot the land to Mumbai Metropolitan
Region Development Authority, and therefore,
as per the directions of the Government and
subsequent directions of Collector, Thane, the
Circle Officer, Balukm, Distt. Thane handed
over the possession of the surplus land to the
Mumbai Metropolitan Region Development
Authority on 02.07.2008.”

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The affidavit also says that actual possession was not

taken over as per the provisions of the ULC Act, 1976

before 29.11.2007. The operative portion of the same

reads as under:-

“I say and submit that, even though the

possession of the land has been handed over
to the Mumbai Metropolitan Region
Development Authority by Circle Officer,
Balkum on 02.07.2008, the actual possession
of said surplus land was not taken over as per
the provisions of the ULC Act, 1976 before
29.11.2007.”

12. We may indicate, apart from the affidavits filed by

the officials in this case, no other document has been

made available either before the High Court or before this

Court, either showing that the Appellant had voluntarily

surrendered or the Respondents had taken peaceful or

forcible possession of the lands. In Hari Ram (supra)

this Court examined the meaning and context of

Sub-sections (3) to (6) of Section 10 of the ULC Act and

held as follows :

“30. Vacant land, it may be noted, is not

actually acquired but deemed to have been

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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 the hands of a
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 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

31. The “vesting” in sub-section (3) of Section

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

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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 (2000 (8) SCC 99)
held as follows: (SCC p. 114, para 28)

“28. … 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 property in.’ (Per Brett, L.J. Coverdale
v. Charlton (1878) 4 QBD 104 (CA):
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 authorisation
cannot however but be termed to be a
contingent event. To ‘vest’, cannot be
termed to be an executory devise. Be it
noted however, that ‘vested’ does not
necessarily and always mean ‘vest in
possession’ but includes ‘vest in interest’
as well.”

32. We are of the view that so far as the

present case is concerned, the word “vesting”
takes in every interest in the property
including de jure possession and, not de facto
but it is always open to a person to voluntarily
surrender and deliver possession, under
Section 10(3) of the Act.

33. Before we examine sub-section (5) and

sub-section (6) of Section 10, let us examine
the meaning of sub-section (4) of Section 10 of
the Act, which says that during the period
commencing on the date of publication under

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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 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

34. Sub-section (5) of Section 10, for the first

time, speaks of “possession” which says that
where any land is vested in the State
Government under sub-section (3) of Section
10, the competent authority may, by notice in
writing, order any person, who may be in
possession of it to surrender or transfer
possession to the State Government or to any
other person, duly authorised by the State
Government.

35. If de facto possession has already passed

on to the State Government by the two
deeming provisions under sub-section (3) of
Section 10, there is no necessity of using the
expression “where any land is vested” under
sub-section (5) of Section 10. Surrendering or
transfer of possession under sub-section (3) of
Section 10 can be voluntary so that the person

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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) of
Section 10 to surrender or deliver possession.
Sub-section (5) of Section 10 visualises a
situation of surrendering and delivering
possession, peacefully while sub-section (6) of
Section 10 contemplates a situation of forceful
dispossession.

Forceful dispossession

36. The Act provides for forceful dispossession

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

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dispossession” under sub-section (6) of Section

10.

37. The 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
requirement. Effect of non-issue of notice
under sub-section (5) or sub-section (6) of
Section 11 is that it might result in the
landholder being dispossessed without notice,
therefore, the word “may” has to be read as
“shall”.”

13. We have, therefore, clearly indicated that it was

always open to the authorities to take forcible possession

and, in fact, in the notice issued under Section 10(5) of

the ULC Act, it was stated that if the possession had not

been surrendered, possession would be taken by

application of necessary force. For taking forcible

possession, certain procedures had to be followed.

Respondents have no case that such procedures were

followed and forcible possession was taken. Further,

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there is nothing to show that the Respondents had taken

peaceful possession, nor there is anything to show that

the Appellants had given voluntary possession. Facts

would clearly indicate that only de jure possession had

been taken by the Respondents and not de facto

possession before coming into force of the repeal of the

Act. Since there is nothing to show that de facto

possession had been taken from the Appellants prior to

the execution of the possession receipt in favour of

MRDA, it cannot hold on to the lands in question, which

are legally owned and possessed by the Appellants.

Consequently, we are inclined to allow this appeal and

quash the notice dated 17.2.2005 and subsequent action

taken therein in view of the repeal of the ULC Act. The

above reasoning would apply in respect of other appeals

as well and all proceedings initiated against the

Appellants, therefore, would stand quashed.

14. The Appeals are, accordingly, allowed. However,

there shall be no order as to costs.

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……………………………..J.
(K. S. Radhakrishnan)

……………………………..J.
(Vikramajit Sen)
New Delhi,
February 14, 2014.

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