1. These proceedings viz. the two LPAs and the PIL have been placed before us, in light of differing decisions by the two Hon’ble Judges constituting a bench which decided the LPAs and the PIL by order dated 16.04.2020. One of the Hon’ble Ld. Judges (Hon’ble Mr.Justice J.B.Pardiwala, as he then was) allowed the appeals reversing the judgement and order of the learned Single Judge dated 29.10.2007-30.10.2007, whereas, the other Hon’ble learned Judge of the coordinate bench (Hon’ble Mr.Justice A.C.Rao, as he then was) dismissed the appeals. Hence, this reference.

2. Facts in brief are as under:

2.1 For the brevity of this order, the facts as set out by the judgement dated 16.04.2020 read as under:

“A. The subject-matter of dispute in the present litigation is a parcel of land bearing Survey No.314/1&2 situated at the village Sola, Taluka Dascroi, District Ahmedabad. Before the Urban Land (Ceiling and Regulation) Act, 1976 (for short, 'the ULC Act') came into force, the subject land was admeasuring 12141 sq.meters. On 11th December 1975, a registered sale-deed was executed by the original owner (Gandabhai Mangalbhai Patel as the 'Karta' of Mangaldas Cheladas Patel, HUF) in favour of Shri Harshvardhan Hathising Shah and Shri Mohanlal Tripathi in their capacity as the promoters of the appellant-Society, namely The Deep Cooperative Housing Society Limited, for the sale of the subject land referred to above. A portion of the said land admeasuring 15-Gunthas was not sold by the original owner to Shri Shah and Shri Tripathi. A specific condition was incorporated in the said registered sale-deed dated 11th December 1975 that the land referred to in the sale-deed was agreed to be sold to the promoters of the proposed Deep Cooperative Housing Society Limited, i.e. the appellant herein. Clause (11) of the sale-deed dated 11th December 1975 reads as under :

“11. This land under this document has been determined to be sold to you as promoters of Deep Cooperative Housing Society Ltd. (proposed) and therefore you have acquired right to assign the property under this document i.e. said lands in favour of the said proposed society or the Registered Cooperative Housing Society of the said name.”

B. With the coming into force of the ULC Act, 1976, the proposed Deep Cooperative Housing Society Limited, through one of its promoters, viz. Shri Shah, filed a statement dated 10 th September 1976 under Section 6(1) of the ULC Act before the competent authority declaring the land held on behalf of the proposed Society. It was pointed out in the said statement that the land bearing Survey No.314/1&2 was to be used for the purpose of constructing dwelling units for the members of the Society.

C. On 24 th May 1979, an order was passed by the State Government under Section 20 of the ULC Act granting exemption to the land bearing Survey No.314/1&2 in accordance with the provisions of Chapter III of the ULC Act as the same was agricultural land. Although the order dated 24th May 1979 has been referred to in the order dated 5th March 1988 passed by the competent authority and Deputy Collector, Urban Land Ceiling, Ahmedabad, yet the same is not on record. It is the case of the appellant that despite a request made under the Right to Information Act, 2005, the said exemption order has not been provided till this date by the State Government.

D. On 15th February 1980, the appellant-Society came to be registered under Section 9(1) of the Gujarat Cooperative Societies Act, 1961. It was given registration No.GH/8068.

E. On 5 th March 1988, an order came to be passed by the respondent no.2 herein, i.e. the competent authority and Deputy Collector, Urban Land Ceiling, Ahmedabad, on the form filled up by the original owners declaring 4553 sq.meters of land of Survey No.314/1&2 as exempted from the provisions of the ULC Act. Such exemption was granted as the land was agricultural land.

F. On 23 rd June 1989, an order came to be passed by the respondent no.2, i.e. the competent authority, under Section 9 of the ULC Act declaring 10141 sq.meters of land bearing Survey No.314/1&2 as the 'excess vacant' land. The said order was passed on the statement of the appellant herein filed under Section 6(1) of the ULC Act dated 10 th September 1976.

G. It appears that the competent authority and Deputy Collector, Ahmedabad, remained oblivious about the exemption order dated 5 th March 1988 passed by it earlier on the form filled up by the original owners under Section 6(1) of the ULC Act. Thus, on one hand, two exemption orders dated 24th May 1979 and 5th March 1988 respectively came to be passed in respect of the subject land, while on the other, a contrary order dated 23rd June 1989 came to be passed by the very same authority declaring 10141 sq.meters of the subject land as 'surplus'.

H. In such circumstances referred to above, the appellant herein went before the respondent no.3, i.e. the Urban Land Tribunal, by filing an appeal under Section 33 of the ULC Act with a prayer to quash and set-aside the order dated 23 rd June 1989 passed by the respondent no.2, competent authority, Ahmedabad.

I. The Urban Land Tribunal, vide its judgment dated 29 th January 1991, dismissed the Appeal No.294 of 1989 filed by the appellant herein. The Tribunal held that on the date of the commencement of the ULC Act, 1976, in the State of Gujarat, i.e. 17 th February 1976, the appellant was an unregistered and a proposed Cooperative Housing Society and, therefore, was not entitled to the benefit of Section 19(1) (v) of the ULC Act.

J. The Special Civil Application No.4430 of 1992 came to be instituted by the appellant herein questioning the legality and validity of the judgment and order dated 29th January 1991 passed by the Urban Land Tribunal, Ahmedabad.

K. On 2 nd July 1992, the Special Civil Application No.4430 of 1992 came to be admitted by a learned Single Judge of this Court. The following order was passed :

“Rule. Till further orders, the operation of the impugned order is stayed.”

L. The materials on record reveal that the Special Civil Application No.4430 of 1992 came to be disposed of by a learned Single Judge of this Court vide order dated 6 th May 1999 holding that as the possession of the subject land had not been taken over by the State Government from the appellant, the order dated 23 rd June 1989 passed by the respondent no.2, competent authority and Deputy Collector, Urban Land Ceiling, Ahmedabad, stood abated on the coming into force of the Urban Land (Ceiling and Regulation) Repeal Act, 1999, with effect from 22nd March 1999.

M. The respondent nos.1 and 2 herein thought fit to prefer Misc. Civil Application No.1493 of 1999 on 10 th September 1999, seeking review of the order dated 6 th May 1999 passed by the learned Single Judge in the Special Civil Application No.4430 of 1992. The Misc. Civil Application was filed on the premise that the possession of the subject land had been taken over by the State Government on 23 rd June 1992. However, the Misc. Civil Application seeking review came to be rejected by the learned Single Judge vide order dated 10th September 1999.

N. In the year 2001, the respondent nos.1 and 2 herein preferred the Letters Patent Appeal No.984 of 2001 against the judgments and orders passed by the learned Single Judge dated 6 th May 1999 and 10 th September 1999 respectively in the Special Civil Application No.4430 of 1992 and the Misc. Civil Application No.1493 of 1999 respectively.”

2.2 Several issues were raised before the learned Single Judge which read as under:

“7. The following were the issues raised before the learned Single Judge :

(A) The subject land was purchased by the holders as the promoters of the Society. The lands were, therefore, exempt from the application of the ULC Act, 1976.

(B) The possession of the subject land remained with the Society. In view of the repeal of the Act of 1976 by the Repeal Act, 1999, all the proceedings in respect of the subject land stood abated.

(C) The subject land was agricultural in nature and was used for the agricultural purposes. Under the relevant Master Plan, all the lands of village Sola were reserved for the purpose of agriculture. In such circumstances, the lands were neither 'urban land' nor 'vacant land' within the meaning of the Act of 1976. The provisions contained in the Act of 1976 did not apply to the subject land.

(D) The competent authority had, by its order dated 13th November 1979, accordingly granted exemption to the subject land.

(E) If the subject land was not 'urban land' or 'vacant land' within the meaning of the Act of 1976, the said status could not be changed by any subsequent action of the State Government.

(F) The mandatory requirement of issuing notice under Section 10(5) of the Act, 1976, to the persons in possession was not complied with. Any action of taking over possession of the excess vacant land as envisaged by Section 10(6) of the Act of 1976 is void, illegal and non-est in the eye of law.”

3. Mr.Deven Parikh learned Senior Counsel appearing in LPA No.34 of 2008 made the following submissions:

3.1 That there was sufficient record to suggest that lands in question were agricultural lands and were in agricultural zones in accordance with the development plans.

3.2 Mr.Parikh would rely on the definitions of the terms “urban land” and “vacant land” contained in Section 2(o) and 2(q) of the Urban Land (Ceiling and Regulation) Act, 1976, (hereinafter to be referred to as ‘the Ceiling Act’). He would submit that since the land was agricultural land, it would be specifically excluded from the provisions of the Ceiling Act.

3.3 Mr.Parikh would submit that it is apparent from the perusal of the sale deed that the land in question which was originally owned by Gandabhai Mangalbhai Patel in his capacity as Karta of HUF and which sale deed was executed on 11.12.1975, prior to coming into force of the Ceiling Act, was a sale deed by which the sellers have agreed to sell the land to the promoter of the petitioner society.

3.4 Mr.Parikh would submit that Form-I was filled by the petitioner-society showing that the land bearing survey no.314/1 and 314/2 admeasuring 12141 square yards was for putting up dwelling units. It was clearly stated that the same was being filed as an unincorporated association and as a member society. It was also specifically stated in column 15 that the agricultural land was purchased by the society in the name of promoters who are agriculturists.

3.5 Inviting our attention to the circular dated 01.10.1977 issued by the Government to the Revenue Department, Mr.Parikh would submit that it was clearly provided in the circular that an unregistered cooperative society can hold land under a sale deed executed while it was not registered. Once the society therefore came to be registered and continued to hold the land, it would be exempt from Section 19(1)(v) of the Ceiling Act.

3.6 Pressing into service, an important facet, Mr.Parikh would submit that on the date of the Repeal Act, the possession of the vacant land was not taken and it remained with the society till date. Supporting his submission, he would rely on the Panchnama and the map dated 23.06.1992. He would submit that there was no signature of the panch witness on the map and the material on record would indicate that the panchnama was drawn while sitting in the office without actually visiting the site. No notice under Section 10(5) or 10(6) was either served on Shri Shah or Shri Tripathi.

3.7 Taking us to para 16 of the judgement delivered by one of the Hon’ble Judges of the Division Bench (Hon’ble Mr.Justice J.B.Pardiwala, as he then was) Mr.Thakore and Mr.Parikh would submit that there were circumstances to suggest that the panchnama was a paper panchnama. Inviting our attention to the notification under Section 10(1) of the Act, Mr.Parikh would submit that the schedule in the notification showed the name of the cooperative society whereas, in the notices under Section 10(5) and 10(6), it was not issued to the society but two individuals viz. Shri Shah and Shri Tripathi at their respective residential addresses on 04.05.1992. Both these individuals, on the date of service of such notice had already passed away. The notices therefore were served on dead persons. This was not in compliance with Rule 5 of the Rules inasmuch as, persons interested were not served.

3.8 On the issue of possession, Mr.Parikh would rely on the following decisions:

I. In case of Manchiben Thakorebhai Prabhubhai and others v. Compat Authority reported in 2009 JX (Guj) 13. He would rely on the relevant paras of the decision to submit that in light of the proceedings having been taken against dead persons, it cannot be said that the Government had taken possession legally on the date of the Repeal Act and therefore, the appellants were protected from the provisions thereof.

II. In case of State of Gujarat v. Kashiben Wd/o Nathabhai S Prajapati reported in 2012 JX (Guj) 160

III. In case of Bhikhiben Wd/o Devjibhai Patel (Since Deceased) Thro v. State of Gujarat Thro. The Principal Secretary reported in 2010 JX (Guj) 1203

IV. In case of Manilal Damodar Joshi Since Decd. Thro Legal Heirs v. State of Gujarat reported in 2018 JX (Guj) 165. This judgement was pressed into service to submit that on plain reading of the provisions of Section 10(5) and 10(6) of the Act, it is apparent that only when a person fails or refuses to comply with an order under sub-section (5) of Section 10, that an order can be passed for taking over possession under sub-section (6) of Section 10. He would place reliance on the decision in case of State of Maharashtra v. B.E.Bilimoria reported in 2003 7 SCC 336 and in the case of Bhavnagar University v. Palitana Sugar Mill (Pvt.) Ltd. (2003) 2 SCC 111

V. The decision in case of State of Gujarat Through Competent Authority v. Ramilaben A. Lakdawala Since Decd. was relied by him in support of his submission that if there is no compliance of notices issued under Sections 10(5) and 10(6), it was too late in the day for the State to claim that the land in question was in their possession. Reliance was also placed on the decision of the Supreme Court in case of State of Uttar Pradesh v. Hari Ram reported in 2013 (4) SCC 280 and on the decision in the case of State of Assam v. Bhaskar Jyoti Sarma and others reported in 2015 (5) SCC 321.

4. In Letters Patent Appeal No.492 of 2014, Mr.Mihir Thakore learned Senior Counsel assisted by Mr.Parthiv Shah learned advocate for the appellant would also extensively read before us the decisions in the case of Hari Ram (supra) and Bhaskar Jyoti (supra). Mr.Thakore would submit that after considering the decision of Hari Ram (supra), what is evident is that the Supreme Court had considered the subject of voluntary surrender and peaceful dispossession and forceful dispossession. He would emphasize on the distinctions of Sections 10(3), 10(5) and 10(6) of the Ceiling Act. He would submit that Section 10(3) of the Ceiling Act deals with vesting of land. It is only when a person refuses to hand over possession under the question of forceful dispossession under Section 10(6) would occur. Relying on para 36 of the decision in the case of Hari Ram (supra), Mr.Thakore would submit that forcible dispossession of the land can only be resorted to in a situation which falls under sub-section (6) and not under sub-section (5). Sub-sections (5) and (6) therefore take care of both the situations, i.e. taking possession by giving notice i.e. peaceful dispossession and on failure to surrender of due delivery of possession under Section 10(5) than forceful dispossession under Section 10(6).

5. Mr.K.M.Antani learned AGP for the State would make the following submissions:

5.1 Mr.Antani would submit that the arguments of the appellants were structured around two facets (1) Non applicability of the Ceiling Act in which case the land in question could not have been subjected to the ULC proceedings, and, (2) Even while it were to be assumed that the ULC Act was in fact applicable, the mandatory procedure to be followed under the Act was given a go by entitling the respondents, the benefit of Repeal Act.

5.2 On Non applicability of the ULC Act, Mr.Antani would submit that the land was in the agricultural Zone in the Master Plan at the time when declaration u/s 6 of the ULC Act was filled. It was argued on behalf of the appellant that the land being an agricultural land, the same was exempted from the applicability of the Act. It was also submitted that the land at the time when declaration u/s 6 of the ULC Act was filled came to be included in the Master Plan of the time in agricultural Zone. As regards the above contention it may be noted that the land in question was included in Master plan of the time in agricultural zone, however, the said Master Plan came to be again revised on 02.11.1987 by the State Government showing the subject land falling under the reservation of GSFC for the purpose other than agriculture. It was this Master Plan which was extant at the time of issuance of Section 8 of the ULC Act. Thus, it would be the revised Master Plan which would be applicable for the purposes of declaring the land as vacant land. This defence is founded on State of Andhra Pradesh Versus N. Audikesava Reddy [AIR 2002 SC 5], wherein it is held:

“12. Accordingly, we hold that the master plan prepared as per law in force even subsequent to enforcement of the Act is to be taken into consideration to determine whether a particular piece of land is vacant land or not and, to this extent, Atia Begum is not correctly decided.”

5.3 Mr.Antani would submit that the land is granted automatic exemption from the applicability of the ULC Act. Land is an agricultural land. It was submitted by the appellants that the land was owned by it which was then (at the time of filing Form 6) a proposed housing society and later a registered Co-Operative Housing Society. Concurrently, it was also claimed that while it was held by the appellant in the capacity of a Society’s holding, it was being used for agriculture.

5.4 Mr.Antani would submit that notwithstanding the factual position, since the land was reserved in the Master Plan for GSFC, the question of weighing this Hon’ble Court with factual position does not arise. Circular dated 1.10.1977 issued by the Revenue Department stipulating grant of automatic exemption. The circular dated 1.10.1977 was in consonance of Section 19 of the Act which stipulated entitlement of claiming exemption to “deemed to be registered societies”. It was the case of the appellant that since in the preface of the circular there was a singular use of the word ‘automatic’, the said circular granted automatic exemption. As regards the above submission, firstly, the said circular in being pursuant to the Section 19 of the Act, it deserves to be noted that the said section does not conceive or provide for an automatic exemption, neither does the circular. Secondly, the said circular provided for grant of exemption subject to certain condition, neither of which was sought to be fulfilled by the appellant, and lastly, the exemption under the circular and consequent supposed entitlement of the appellant under it being a contention is belied by the record position when the appellant is known to have stated in Form 6 declaration that they were in the process of availing exemption u/s 21 of the ULC Act which was never produced ever, not during the ULC proceedings nor ever during the proceedings before this Hon’ble Court.

5.5 On irregularity of the procedure requiring vitiation of the vesting under the ULC Act, Mr.Antani would submit that in context of proceedings against a dead person, he would rely on the decision in case of Maganji Govindji Vs. Competent Authority & Addl. Collector ULC reported in 1993 (2) GLR 1808.

5.6 Mr.Antani would submit that in the wake of the above judgement and the ratio laid down in the same what is discernible is that the liability fastened upon the declarant under the ULC Act relates back to the time when the declaration is filled. Merely on the death of the declarant the said liability does not extinguish. What begun with declaration u/s 6 of the Act, must invariably conclude with vestiture and subsequent taking over of possession on the position as it existed at the time of declaration.

5.7 Mr.Antani would submit that in the instant case, the appellant was the declarant in the capacity of a proposed Society represented through its promoters. While it may be, that the promoters died during the course of progression of ULC proceedings, however, the liability of the declarant society must be dispensed by permitting the vestiture and subsequent taking over of possession in the manner that it existed at the time of filling up Section 6 declaration. The death of its promoters cannot really affect the liability of the declarant proposed society fastened upon it under the ULC Act with the declaration u/s 6 of the Act. Moreover the Society being a going concern, death of its promoters cannot affect it as an entity.

5.8 Mr.Antani would submit that in the instant case, whilst violation of Rule 5 of the ULC Rules has been contended, however, the appellant claiming such violation is at best the declarant itself and at worst as its interests aligned with the declarant, and therefore such contention may not be accepted in the light of the ratio laid down in the discussed judgment.

5.9 On the aspect of possession not taken, he submits that (I) Non service of notices under sections 10(5) and 10(6) of the Act; it has been principally contended by the appellant that there has been no service of Section 10(5) and 10(6) notices and in the alternative it is contended that even if it were served, such a service was to dead persons.

5.10 In this regard, as submitted by Mr.Antani, attention deserves to be drawn to the ratio laid down in State of Assam Vs. Bhasker Jyoti Sarma reported as (2015) 5 SCC 321. The Hon’ble Apex Court in Bhasker Jyoti (supra) has held that a stand alone contention of non-service of Sections 10(5) and 10(6) of the Act is to no avail. That it shall be a mere administrative irregularity. Unless there is a depiction of an inherent wrong with the vestiture under Section 10(3) of the Act, mere claim of non service of Section 10(5) and 10(6) of the Act shall not entail vitiation of the ULC proceedings. It is also held that the judgement of the Hon’ble Apex Court in the case of Hari Ram (supra) cannot be relied to foretell the consequence of a failure to serve notice under Section 10(5) and 10(6) of the Act, since the said judgement cannot be said to be addressing such an issue. Bhaskar Jyoti (supra.) particularly holds that the contention of non service of 10(5) and 10(6) of the Act must also not be regarded as capable of vitiating the ULC proceedings in the context of the Repeal Act, 1999 for the reason that the repeal Act was a fortuitous circumstance.

5.11 Mr.Antani would submit that it is urged before this Hon’ble Court to consider and apply the ratio of Bhaskar Jyoti (supra.) to the facts of the present case, and, particularly in the wake of the record position which demonstrates service of Section 10 (5) and 10 (6) of the Act.

5.12 So far as possession Panchnama uninspiring is concerned, Mr.Antani submits that the Hon’ble Apex Court in case of Banda Development Authority Vs. Moti lal Agarwal reported as (2011) 5 SCC 394, it is held that spot panchnama would constitute to be taking possession of a land. Undoubtedly the said judgement was in the context of Land Acquisition Act, however its ratio may well be applied in the context of ULC Act and its proceedings as has been done since time immemorial by the Courts of law. This adaption of the ratio would also be justified for the reason that both the Acquisition Act as also the ULC Act are expropriatory legislations and require forceful acquisition of land. Moreover, in the instant case the panchnama from the original record gives a near perfect depiction of the location of the land in question when juxtaposed with a much recent town planning map leading to an undeniable inference of it being a spot panchnama to be held valid for the purposes of assuming possession of the vacant land.

5.13 He would rely on the following decisions:

I. In case of State of A.P. and others v. N. Audikesava Reddy and others reported in (2002) 1 SCC 227.

II. In case of Maganji Govindji v. Competent Authority and Additional Collector, Urban Land Ceiling reported in 1993 (2) GLR 1808

III. In case of Commissioner (Appeals) Land Administration, Andhra Pradesh & Anr. rendered in Civil Appeal No.10404 of 2014

IV. In case of Vijayawada Urban Zilla Weaker Section and Economically Backward Classes Society, rep. By its President M. Shankar Rao v. Dhulipalla Kishore Kumar and others reported in AIR 1996 AP 80.

6. Several issues have been raised and denied in the dissenting views expressed by the respective judges of the Division Bench. Arguments have also been made accordingly. There have been points of contest on issues such as notice served to dead persons, representation on behalf of the defendant society in ULC proceedings, compliance of Rule 5 of the ULC Rules etc. We would desist from entering into the realm thereof. In absence of points of reference therefore we would restrict our issue on the focal point of implications of the Repeal Act. Provisions of Sections 3 and 4 of the Repeal Act read as under:

“3. Persons not entitled to hold vacant land in excess of the ceiling limit Except as otherwise provided in this Act, on and from the commencement of this Act, no person shall be entitled to hold any vacant land in excess of the ceiling limit in the territories to which this Act applies under sub-section (2) of section 1.

4. Ceiling limit

(1) Subject to the other provisions of this section, in the case of Ceiling every person, the ceiling limit shall be,-

(a) where the vacant land is situated in an urban agglomeration falling within category A specified in Schedule I, five hundred square meters;

(b) where such land is situated in an urban agglomeration falling within category B specified in Schedule I, one thousand square meters;

(c) where such land is situated in an urban agglomeration falling within category C specified in Schedule I, one thousand five hundred square meters;

(d) where such land is situated in an urban agglomeration falling within category D specified in Schedule I, two thousand square meters.

(2) Where any person holds vacant land situated in two or more categories of urban agglomerations specified in Schedule I, then, for the purpose of calculating the extent of vacant land held by him,

(a) one square meter of vacant land situated in an urban agglomeration falling within category A shall be deemed to be equal to two square meters of vacant land situated in an urban agglomeration falling within category B, three square meters of vacant land situated in an urban agglomeration falling within category C and four square meters of vacant land situated in an urban agglomeration falling within category D;

(b) one square meter of vacant land situated in an urban agglomeration falling within category B shall be deemed to be equal to one and one-half square meters of vacant land situated in an urban agglomeration falling within category C and two square meters of vacant land situated in an urban agglomeration falling within category D; and

(c) one square meter of vacant land situated in an urban agglomeration falling within category C shall be deemed to be equal to one and one-third square meters of vacant land situated in an urban agglomeration falling within category D.

(3) Notwithstanding anything contained in sub-section (1), where in respect of any vacant land any scheme for group housing has been sanctioned by an authority competent in this behalf immediately before the commencement of this Act, then, the person holding such vacant land at such commencement shall be entitled to continue to hold such land for the purpose of group housing:

Provided that not more than one dwelling unit in the group housing shall be owned by one single person:

Provided further, that the extent of vacant land which such person shall be entitled to hold shall, in no case, exceed-

(a) the extent required under any building regulations governing such group housing; or

Of the extent calculated by multiplying the number of dwelling units in the group housing and the appropriate ceiling limit referred to in sub-section (1), whichever is less.

Explanation.-For the purposes of this sub- section and sub-section (10),-

(i) "group housing" means a building constructed or to be constructed with one or more floors, each floor consisting of one or more! dwelling units and having common service facilities;

(ii) "common service facility" includes facility like staircase, balcony and verandah.

(4) (a) In any State to which, this Act applies in the first instance, if, on or after the 17th day of February, 1975, but before the appointed day, any person has made any transfer by way of sale, mortgage, gift, lease or otherwise (other than a bona fide sale under a registered deed for valuable consideration) of any vacant land held by him and situated in such State to any other person, whether or not for consideration, then, for the purposes of calculating the extent of vacant land held by such person the land so transferred shall be taken into account , without prejudice to the rights or interests of the transferee in the land so transferred:

Provided that the excess vacant land to be surrendered by such person under this Chapter shall be selected only out of the vacant land held by him after such transfer.

(b) For the purpose of clause (a), the burden of proving any sale to be a bona fide one shall be on the transferor.

Explanation.-Where in any State aforesaid , there was or is in force any law prohibiting transfer of urban property in that State except under the circumstances, if any, specified therein, then, for the purposes of this sub-section, any transfer by way of sale of such property, being vacant land, made by any person under a registered deed for valuable consideration in accordance with the provisions of such law or in pursuance of any sanction or permission granted under such law, shall be deemed to be a bona fide sale.

(5) Where any firm or unincorporated association or body of individuals holds vacant land or holds any other land on which there is a building with a dwelling unit therein or holds both vacant land and such other land, then, the right or interest of any person in the vacant land or such other land or both , as the case may be, on the basis of his share in such firm or association or body shall also be taken into account in calculating the extent of vacant land held by such person.

(6) Where a person is a beneficiary of a private trust and his share in the income from such trust is known or determinable , the share of such person in the vacant land and in any other land on which there is a building with a dwelling unit therein, held by the trust, shall be deemed to be in the same proportion as his share in the total income of such trust bears to such total income and the extent of such land apportionable to his share shall also be taken into account in calculating the extent of vacant land held by such person.

(7) Where a person is a member of a Hindu undivided family, so much of the vacant land and of any other land on which there is a building with a dwelling unit therein, as would have fallen to his share had the entire vacant land and such other land held by the Hindu undivided family been partitioned amongst its members at the commencement of this Act shall also be taken into account in calculating the extent of vacant land held by such person.

(8) Where a person, being a member of a housing co-operative society registered or deemed to be registered under any law for the time being in force, holds vacant land allotted to him by such society, then, the extent of land so held shall also be taken into account in calculating the extent of vacant land held by such person.

(9) Where a person holds vacant land and also holds any other land on which there is a building with a dwelling unit therein , the extent of such other land occupied by the building and the land appurtenant thereto shall also be taken into account in calculating the extent of vacant land held by such person.

(10) 1 Where a person owns a part of a building, being a group housing, the proportionate share of such person in the land occupied by the building and the land appurtenant thereto shall also be taken into account in calculating the extent of vacant land held by such person.

(11) For the removal of doubts it is hereby declared that nothing in sub-sections (5), (6), (7), (9) and (10) shall be construed as empowering the competent authority to declare any land referred to in sub-clause (ii) or sub-clause (iii) of clause (q) of section 2 as excess vacant land under this Chapter.

Explanation.-For the purposes of this section and sections 6, 8 and 18 a person shall be deemed to hold any land on which there is a building (whether or not with a dwelling unit therein) if he-

(i) owns such land and the building; or

(ii) owns such land but possesses the building or possesses such land and the building, the possession, in either case, being as a tenant under a lease, the unexpired period of which is not less than ten years at the commencement of this Act, or as a mortgagee or under an irrevocable power of attorney or a hire-purchase agreement or partly in one of the said capacities and partly in any other of the said capacity or capacities; or

(iii) possesses such land but owns the building, the possession being as a tenant under a lease or as a mortgagee or under an irrevocable power of attorney or a hire- purchase agreement or partly in one of the said capacities or partly in any other of the said capacity or capacities.”

6.1 The major bone of contention that, in our opinion which goes to the root of the matter is the issue of possession and the effect of the Repeal Act.

6.2 The case of the appellants-petitioners that the possession of land of survey No.314/1 of 2 has not been taken over by the State Government or any person duly authorized by the State Government on its behalf on 22.03.1999. The averments to this effect in the additional affidavit on behalf of the appellants, particularly on the issue of possession reads as under:

“118. We quote thus :

“(D) Possession of land of Survey No.314/1&2 has not been taken over by the State Government or any person duly authorized by the State Government in this behalf as on 22.3.1999.

i) The land in question has been purchased by the petitioner society on 11.12.1975. Since the said date, the land in question has been under the ownership, possession and control of the present petitioner. At no stage, has possession of the said land been taken by any person competent so to do. In support of the aforesaid, the following facts may be noted :

ii) In the year 1995, some dispute had arisen with regard to the said land owing to which, the present petitioner had filed Civil Suit No.840 of 1995 in the Court of the learned Civil Judge (Senior Division) at Ahmedabad. In light of the said proceedings, the Court had appointed one Commissioner who, upon site inspection, had observed that the land in question is bound by barbed wire fencing and that there is iron gate to entertain the land. Further that, there is a room made with pucca construction and that there is a Board specifically stating that the land in question is in possession and ownership of Dip Cooperative Housing Society Limited, the petitioner herein. There is also a mention of care-taker residing on the land whose name is Raghubhai Shanabhai Bharwad. The panchnama was made in the presence of both the parties to the said suit.

iii) I further state that barbed fencing around the said land has also been repaired and maintained from time to time.

iv) Furthermore, the said Raghubhai Shanabhai Bharwad is the care-taker of the petitioner society since number of years. Representative copies of some of the vouchers issued by him which are also reflected in the books of account of the petitioner society.

v) As a matter of fact, some other person was trying to deal with the land in question and in light whereof, a public notice was issued in Gujarat Samachar dated 20.7.1997 declaring that the petitioner is the owner and is in possession of the land in question and that no person should deal with any other person but the petitioner herein with regard to the said land.

vi) Furthermore, a portion of the land in question has recently been acquired for the purpose of widening of Sarkhej- Gandhinagar Highway. Relevant copies of documents in this regard as well as agreement to hand over possession are collectively annexed. A perusal thereof will show that the land in question was clearly in possession of the petitioner society and possession thereof was given by the petitioner to the concerned authorities even for the purpose of acquisition for widening the said road.

vii) Furthermore, I state that various proceedings had been initiated under the provisions of the Bombay Tenancy and Agricultural Lands Act, more particularly under section 84-C of the said Act. These proceedings before the various revenue authorities with regard to the land in question were :

(a) Ganot (Tenancy) Case No.108/97 before the Mamlatdar and ALT, Ahmedabad;

(b) Tenancy Appeal No.77/99 and Ganot (Tenancy) Revision No.15/98 before the Dy. Collector, Revenue (Appeals);

(c) Ganot (Tenancy) Case No.90/92 before the Mamlatdar and ALT, Ahmedabad;

(d) Ganot (Tenancy) Appeal No.102/01 before the Prant Officer and Dy.Collector, Viramgam. All the above-mentioned proceedings stand disposed of as on today. In none of the above proceedings, was the possession of the petitioner society over the subject land ever question or disputed.

viii) Furthermore, heirs of the person from whom the petitioner had purchased the land have filed Civil Suit No.36 of 1997 in the Court of the learned Civil Judge (Senior Division), Ahmedabad with regard to the said land also.

ix) The aforesaid facts demonstrate beyond any doubt that throughout the relevant period, ownership, possession and control of the said land both de facto and de jure was with the present petitioner and at no point of time has such possession been taken away by any competent officer of the State Government, as is alleged by the respondent in the present petition.

x) I further state that the present petitioner has never been issued any notice or any communication from any officer or authority to the effect that possession of the land in question is taken and hence, the petitioner should not deal with the same or use the said land in any manner. The petitioner has, thus, been in possession of the said land ever since purchase thereof. At no point of time, has its possession ever been taken as is clear from the facts stated hereinabove.

I, therefore, state that the very basic allegation in the present petition that possession of the said land is taken away by the State Government is clearly erroneous.

xii) In view of the matter, I state that the alleged panchnama is fabricated and is not a panchnama in the eye of law. Such panchnama can have little value even otherwise. I further state that no officer of the Government has visited the said land for the purpose of taking any measurement or for the purpose of doing any act which can even remotely be suggested as an act for taking possession of the said land. Again the said panchnama alleged to have been made is made by a person who has clearly no authority in the eye of law.”

6.3 None of these averments have been rebutted by the State Government at any point of time.

6.4 We therefore need to appreciate the provisions of Repeal Act in light of the provisions of Sections 10(3), 10(5) and 10(6) of the Ceiling Act. The relevant provisions read as under:

“10(3) At any time after the publication of the notification under subsection (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.

10(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.

10(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.”

6.5 The parties in order to resist or support the implication of the Repeal Act have relied upon two judgements namely that of Hari Ram (supra) and Bhaskar Jyoti (supra). Both Mr.Thakore and Mr.Parikh submitted that Hari Ram (supra) mandates taking over of actual physical possession post the vesting of land in the State Government under Section 10(3) after due service under Sections 10(5) and 10(6) of the Ceiling Act. To be a beneficiary of the savings stipulation under the Repeal Act to take complete effect, a mere symbolic taking over of possession shall not suffice. Learned AGP Shri Antani would contend that a different perception would arise when the exercise is viewed in the context by reading the decision in the case of Bhaskar Jyoti (supra).

6.6 Before we consider the relevant case law, we note that when sub-section (5) of Section 10 mandates giving of a notice to person in possession, mere issuance of notice without actual service cannot be said to be in consonance with the provision. As per Section 10(6) of the Act if a person fails to comply with an order under Sub-section (5) of Section 10, then such a provision of forcefully taking possession has to be resorted to under Section 10(6). The relevant paras of the decision in the case of Hari Ram (supra) read as under:

“37. Requirement of giving notice under subsections (5) and (6) of Section 10 is mandatory. Though the word 'may' has been used therein, the word 'may' in both the subsections 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 nonissue of notice under subsection (5) or subsection (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'.”

...

39. Above mentioned directives make it clear that subsection (3) takes in only de jure possession and not de facto possession, therefore, if the land owner is not surrendering possession voluntarily under subsection (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.”

40. The scope of Act 33 of 1976 came up for consideration before this Court on few occasions, reference may be made to certain 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 41 Let us now examine the effect of Section 3 of the Repeal Act 15 of 1999 on subsection (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 case depend on the construction of the statute and the facts of the particular case.”

6.7 The Supreme Court in case of Hari Ram (supra) has interpreted section 10(3), 10(5) and 10(6) of the Ceiling Act. It has observed that, vesting in 10(3) means vesting of Title absolutely and not possession though nothing stands in the way of a person voluntarily surrendering or delivering possession. The Supreme Court thereafter observes that it is open for a person to voluntarily surrender possession under section 10(3) of the Act read with section 10(5). section 10(5) provides that when the land is vested in the state under sub-section 3 of section 10, the competent authority may by notice of writing order any person who may be in possession of it, to surrender or transfer possession to the State Government. 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. Section 10(6) provides that if a person refuses or fails to comply with an order made under sub-section 5 of section 10, the Competent Authority may take possession of vacant land to be given to the State Government and force can be used. This is forceful dispossession under section 10(6), para 37, requires mandatory notice under section 10(5) and section 10(6) and it reads as under:

“The requirement of giving notice under sub-section (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 statue 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) of sub-section (6) of Section 11 is that it might result in the landholder being dispossessed without notice, thereafter, the word “may” has to be read as “shall”.”

6.8 It may be pertinent to highlight that, the following paragraphs of the Judgement clearly require that after issuance of notification under section 10(3), Notice in writing has to be given ordering the person in possession to surrender and if the person fails to surrender a notice under section 10(6) has to be given intimating that the Competent Authority will take possession on a particular day.

6.9 This judgement, has been followed by the Hon’ble Supreme Court in Vipin Chandra Vadilal Bavishi v State of Gujarat reported in (2016) 4 SCC 531. The relevant paragraphs of the judgement read as under:

“20. From these facts and the documents available on record, it is evidently clear that neither the Notifications under Sections 10(1), 10(2), 10(3) and 10(5) were issued in respect of plot nos. 36 to 43 nor possession of those plots have been taken over by the respondents. Curiously enough even the map attached to the letter dated 26.6.1989 shows that the possession of plot nos. 1 to 16 were taken and not of plot nos. 36 to 43.

...

23. A similar question came up for consideration before this Court in the case of State of U.P. vs. Hari Ram, 2013 (4) SCC 280. In this case, a question arose as to whether the deemed vesting of surplus land under Section 10(3) of the Act would amount to taking de facto possession depriving the landholders of the benefit of the saving clause under Section 4 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999. After examining in detailed provisions of the Ceiling Act as also the Repeal Act, the Court observed :-

“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 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.

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 subsection (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 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”.”

24. The Bench further considered the effect of Repeal Act and held that:-

“41. Let us now examine the effect of Section 3 of Repeal Act 15 of 1999 on sub-section (3) of Section 10 of the Act. The Repeal Act, 1999 has expressly repealed Act 33 of 1976. The objects and reasons of the Repeal Act have already been referred to in the earlier part of this judgment. The 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 case depend on the construction of the statute and the facts of the particular case.

42. 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. The 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 landowner or holder can claim the benefit of Section 4 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 4 of the Repeal Act.

43. 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 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 4 of the Repeal Act. However, there will be no order as to costs.”

25. The submission of Mr. Kapoor, learned counsel appearing for the respondent-State, that mentioning of Plot Nos. 1 to 16 in the Notification issued under Sections 10(1), 10(3) and 10(5) is a clerical mistake which can be corrected by issuing a corrigendum, is absolutely not tenable in law. How Plot Nos. 1 to 16 can be replaced by Plot Nos. 36 to 43 in those Notifications by issuing a hand-written corrigendum which was not even finally approved by the authorities after 1976 Act stood repealed.

26. An arithmetical mistake is a mistake in calculation, while a clerical mistake is a mistake of writing or typing error occurring due to accidental slip or omissions or error due to careless mistake or omission. In our considered opinion, substituting different lands in place of the lands which have been notified by a statutory Notification under Section 10(1), 10(3) and 10(5) cannot and shall not be done by issuing a corrigendum unless the mandatory requirements contained in the aforementioned sections is complied with. A land holder cannot be divested from his land on the plea of clerical or arithmetical mistake liable to be corrected by issuing corrigendum.”

6.10 The Hon’ble Supreme Court in case of the State of Assam v Bhaskar Jyoti Sarma reported in (2015) 5 SCC 321, has in no manner deferred from or watered down the decision of the Supreme Court in State of U.P. v Hari Ram, this is evident from paragraph no. 17 of the Judgement which reads as under:

“Sub-section (2) of section 10 states that after considering the claims of the 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 10shall, 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.”

6.11 In fact, it has said that the erstwhile owner had waived his right to do so when he was disposed in December 1991. The factual background in the said case is very different. The following dates would indicate that:

6.12 In the background of the aforesaid facts, when possession was taken from the erstwhile owner Bhabhadev Sarma prior to 07.12.1992 and was never questioned by him till 2004, the Hon’ble Supreme Court observed that, in the facts of the case Hari Ram cannot be applied as Bhabhadev Sarma had not made any grievance based on breach of section 10(5) during his lifetime, implying thereby he has waived his right to do so.

6.13 The Supreme Court also observed if had raised this contention in 1991 or 1992 the government would have taken necessary steps under 10(5) and 10(6) much before the repeal of the Act in 2003.

6.14 Therefore as laid out by the Supreme Court in case of Hari Ram (supra) where the possession has not been taken over by the State Government or by any duly authorized person, the mere vesting of land without actual possession is not sufficient. Paper possession is not sufficient to vest land in the State Government when the records of this case, in absence of any rebuttal, set us to hold that allegations in the petition are that proceedings under Section 10(5) and 10(6) are never taken. The record indicates that Shri Shah and Shri Tripathi were issued notices under Section 10(5) and it is now an admitted fact, in absence of any denial that they were served on dead persons. The State has not been able to point out that actual possession was actually handed over. Even if it was not so voluntarily handed over, Section 10(6) contemplates taking possession through coercion. In absence of anything on record to suggest taking over of possession in accordance with the provisions of Section 10(5) and 10(6), the taking over will be unlawful. Section 3 of the Repeal Act talks of the actual or de-facto possession and not only de-jure possession. The law on this issue as discussed in the case of Hari Ram (supra) read as under:

“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 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 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.

35. If de facto possession has already passed on to the State Government by the two deeming provisions under sub-section (3) 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

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) 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 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.

37. 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 the land holder being dispossessed without notice, therefore, the word ‘may’ has to be read as ‘shall’.

38. 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 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.(1) (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)

…

…

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.

…

…

39. 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.

40. The scope of Act 33 of 1976 came up for consideration before this Court on few occasions, reference may be made to certain 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.

41. 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 case depend on the construction of the statute and the facts of the particular case.

42. 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.”

6.15 The law on this issue as discussed in the case of Bhaskar Jyoti (supra) read as under:

“14. We say so because in the ordinary course actual physical possession can be taken from the person in occupation only after notice under Section 10(5) is issued to him to surrender such possession to the State Government, or the authorised officer or the competent authority. There is enough good sense in that procedure inasmuch as the need for using force to dispossess a person in possession should ordinarily arise only if the person concerned refuses to cooperate and surrender or deliver possession of the lands in question. That is the rationale behind Sections 10(5) and 10(6) of the Act. But what would be the position if for any reason the competent authority or the Government or the authorised officer resorts to forcible dispossession of the erstwhile owner even without exploring the possibility of a voluntary surrender or delivery of such possession on demand. Could such use of force vitiate the dispossession itself or would it only amount to an irregularity that would give rise to a cause of action for the aggrieved owner or the person in possession to seek restoration only to be dispossessed again after issuing a notice to him. It is this aspect that has to an extent bothered us.

15. The High Court has held that the alleged dispossession was not preceded by any notice under Section 10(5) of the Act. Assuming that to be the case all that it would mean is that on 7th December, 1991 when the erstwhile owner was dispossessed from the land in question, he could have made a grievance based on Section 10(5) and even sought restoration of possession to him no matter he would upon such restoration once again be liable to be evicted under Sections 10(5) and 10(6) of the Act upon his failure to deliver or surrender such possession. In reality therefore unless there was something that was inherently wrong so as to affect the very process of taking over such as the identity of the land or the boundaries thereof or any other circumstance of a similar nature going to the root of the matter hence requiring an adjudication, a person who had lost his land by reason of the same being declared surplus under Section 10(3) would not consider it worthwhile to agitate the violation of Section 10(5) for he can well understand that even when the Court may uphold his contention that the procedure ought to be followed as prescribed, it may still be not enough for him to retain the land for the authorities could the very next day dispossess him from the same by simply serving a notice under Section 10(5). It would, in that view, be an academic exercise for any owner or person in possession to find fault with his dispossession on the ground that no notice under Section 10(5) had been served upon him.

16. The issue can be viewed from another angle also. Assuming that a person in possession could make a grievance, no matter without much gain in the ultimate analysis, the question is whether such grievance could be made long after the alleged violation of Section 10(5). If actual physical possession was taken over from the erstwhile land owner on 7th December, 1991 as is alleged in the present case any grievance based on Section 10(5) ought to have been made within a reasonable time of such dispossession. If the owner did not do so, forcible taking over of possession would acquire legitimacy by sheer lapse of time. In any such situation the owner or the person in possession must be deemed to have waived his right under Section 10(5) of the Act. Any other view would, in our opinion, give a licence to a litigant to make a grievance not because he has suffered any real prejudice that needs to be redressed but only because the fortuitous circumstance of a Repeal Act tempted him to raise the issue regarding his dispossession being in violation of the prescribed procedure.

17. Reliance was placed by the respondents upon the decision of this Court in Hari Ram's case (supra). That decision does not, in our view, lend much assistance to the respondents. We say so, because this Court was in Hari Ram's case (supra) considering whether the word 'may' appearing in Section 10(5) gave to the competent authority the discretion to issue or not to issue a notice before taking physical possession of the land in question under Section 10(6). The question whether breach of Section 10(5) and possible dispossession without notice would vitiate the act of dispossession itself or render it non est in the eye of law did not fall for consideration in that case. In our opinion, what Section 10(5) prescribes is an ordinary and logical course of action that ought to be followed before the authorities decided to use force to dispossess the occupant under Section 10(6). In the case at hand if the appellant's version regarding dispossession of the erstwhile owner in December 1991 is correct, the fact that such dispossession was without a notice under Section 10(5) will be of no consequence and would not vitiate or obliterate the act of taking possession for the purposes of Section 3 of the Repeal Act. That is because Bhabadeb Sarma-erstwhile owner had not made any grievance based on breach of Section 10(5) at any stage during his lifetime implying thereby that he had waived his right to do so.”

6.16 On the question of the submission of Shri Antani that Bhaskar Jyoti (supra) distinguishes Hari Ram (supra) on the issue of Section 10(5) and 10(6), we may partly agree with Shri Antani that Bhaskar Jyoti (supra) to an extent expresses the consequences of non-compliance of Section 10(5) and 10(6), however, we cannot ignore the proposition of Hari Ram (supra).

6.17 The State Government, must,satisfy us on the following aspects:

(I) Whether Section 10(5) of the ULC Act was duly complied with

(II) Whether Section 10(6) of the ULC Act was complied with

(III) Whether there is something inherently wrong with the Vestiture under Section 10(3)

6.18 Original records were shown to us to demonstrate service of Section 10(5) and 10(6). Panchnama of the Maintenance Surveyor was also shown to us. The Panchnama lacks particulars of the vacant land, possession of which was to be taken over and the retainable land in question. We do not agree with Mr.Antani’s submission that paper panchnama is enough to signify taking over of possession. The Panchnama lacks the very fundamentals of particulars like demarcation of vacant and retainable land.

“141. The propositions of law governing the issue of possession in context with Sections 10(5) and 10(6) respectively of the ULC Act, 1976 read with Section 3 of the Repeal Act, 1999 may be summed up thus:

[1] The Repeal Act clearly talks about the possession being taken under Section 10(5) or Section 10(6) of the Act, as the case may be.

[2] It is a statutory obligation on the competent authority or the State to take possession as permitted in law.

[3] In case the possession is purported to have been taken under Section 10(6) of the Act, the Court is still obliged to look into whether “taking of such possession” is valid or invalidated on any of the considerations in law.

[4] The possession envisaged under Section 3 of the Repeal Act, 1999 is de facto and not de jure only.

[5] The mere vesting of “land declared surplus” under the Act without resuming “de facto possession” is of no consequence and the land holder is entitled to the benefit of the Repeal Act.

[6] The requirement of giving notice under sub-sections (5) and (6) of Section 10 is mandatory. Although the word “has been used therein”, yet the word “may” in both the sub-sections has to be understood as “shall” because a Court is obliged to decide the consequences that the legislature intended to follow from the failure to implement the requirement.

[7] 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 th March 1999.

[8] The State has to establish by cogent evidence on record that there has been a voluntary surrender of vacant land or surrender and delivery of peaceful possession under sub-section (6) of Section 10 or forceful dispossession under sub- section (6) of Section 10.”

6.19 There is also an inherent deficiency in vestiture under Section 10(3). While determining excess vacant land at the time of making an order under Section 8(4) of the Act, individual holdings of the promoters of the proposed society were considered. The vestiture under Section 10(3) is therefore vitiated by consideration of individual holdings of the promoters while determining vacant land of the proposed society at the stage of Section 8(4) of the Act. Therefore, while testing the issues in light of the ratio laid down in Hari Ram (supra) and Bhaskar Jyoti (supra), we hold that the proceedings under the Ceiling Act must stand vitiated and the benefit of the Repeal Act must enure to the appellants/declarants. Having held so, we would hasten to add that our conclusion shall be aligned with the view taken by our esteemed brother Honourable Mr. Justice J.B. Pardiwala as he then was.

7. We accordingly allow the appeals. The PIL therefore is also rendered academic on issues as appeals are allowed. The judgement and order of the learned Single Judge dated 29.10.2007- 30.10.2007 is quashed and set aside. Appeals stand allowed accordingly.

8. In view of the disposal of all main matters, connected Civil Applications will not survive and hence, they also stand disposed of.