State Of M.P. vs Ghisilal

REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2153 OF 2012

State of M.P. ...Appellant

versus

Ghisilal ...Respondent

J U D G M E N T

R.SUBHASH REDDY,J.

1. This Civil Appeal is preferred by the

appellant - State of Madhya Pradesh, aggrieved by

the judgment and order dated 08.11.2006 passed in

Second Appeal No.129 of 2006. By the aforesaid

order, the High Court has dismissed the Second

Appeal, preferred by the appellant herein Signature Not Verified Digitally signed by Rajni Mukhi Date: 2021.11.22 17:21:03 IST Reason: confirming the judgment and decree passed by the

learned IV Additional District Judge, Bhopal, in

Civil Appeal No.37-A/2005 dated 23.07.2005 and the

judgment and decree dated 24.12.2004 passed by the

learned XIIth Civil Judge, Class - II, Bhopal, in

Civil Suit No.138-A/2004.

2. Necessary facts, in brief, are as under:

3. The agricultural land bearing Survey Nos.171

to 184, 214, 217 and 284 admeasuring 17.18 acres

situated at Village Bag Sevania, Tehsil Huzur,

District Bhopal, was recorded in the name of Late

Padam Singh as a Bhoomi Swami. In the aforesaid

land, late Padam Singh was having 1/4th share. As

the said land was covered by the Urban Land

(Ceiling and Regulation) Act, 1976 (for

convenience sake, hereinafter referred to as ‘ULC

Act’), late Padam Singh has filed declaration as

contemplated under the provisions of the ULC Act.

The competent authority has determined an extent

of 16000.32 square meters of land as vacant land

2 and the same was declared surplus. Consequent to

passing of final orders by the competent

authority, a notification under Section 10(1) of

the ULC Act was issued on 16.09.1983 and the

notification as contemplated under Section 10(3)

of the ULC Act was published in the Madhya Pradesh

Gazette, Part - III dated 20.01.1984.

4. It is the case of the appellant herein that

after following the necessary procedure

contemplated under the ULC Act, possession of the

surplus land was taken. Thereafter, the revenue

entries were corrected showing the State as owner

to the extent of the surplus land declared by the

competent authority. It is also the case of the

appellant that as the possession was already taken

prior to coming into force of the Urban Land

(Ceiling and Regulation) Repeal Act 1999 (for

convenience sake, hereinafter referred to as

‘Repeal Act’), the said land was allotted for the

3 purpose of constructing dwelling houses to the

poor.

5. The respondent herein had filed suit for

declaration and permanent injunction on

09.09.2003, claiming himself to be the sole heir

and adopted son of Late Padam Singh. The relief

in the suit reads as under:

“1) That the surplus land of 16000.32 square meters which has been declared surplus, declaration be exempted under the Urban Land (Ceiling and Regulation) Act, 1976 because possession has not been taken.

2) That the defendant be restrained from interfering with the possession of the respondent.”

6. The Trial Court i.e., XII Civil Judge, Class -

II, Bhopal, by the judgment and decree dated

24.12.2004, decreed the suit on the ground that

possession has not been taken, before the Repeal

Act has come into force. Trial court also granted

consequential relief restraining the appellant

herein from interfering with the possession of the

4 respondent. As against the judgment and decree

passed by the trial Court, the matter was carried

by way of first appeal, by the appellant, before

the IV Additional District Judge, Bhopal and the

Appellate Court has dismissed the appeal by the

judgment and decree dated 23.07.2005. As against

the same, the appellant has carried the matter by

way of Second Appeal before the High Court. The

Second Appeal is also dismissed by the impugned

judgment and decree dated 08.11.2006.

7. The aforesaid impugned judgment is questioned

in this appeal mainly on the ground that after

necessary notifications were issued under Section

10 of the ULC Act, appellant has taken possession

and utilised the subject land for construction of

houses for the poor by spending huge amounts. It

is the case of the appellant that the respondent

has not questioned the orders passed by the

competent authority declaring the land as surplus

land, it is not open to seek declaration by the

5 respondent - plaintiff as prayed for. A specific

ground was raised in the grounds of appeal that

after taking possession, land was recorded in the

name of the Government and the surplus land was

allotted to Bhopal Development Authority for the

benefit of slum dwellers and the said Authority

has already constructed 100 (hundred) houses on

the land by spending about Rs.1.50 Crores by the

time the appeal was preferred to this Court. It

is also the case of the appellant that relief as

sought in the suit is a belated attempt, though

such suit is not maintainable in law.

8. We have heard Mr. Saurabh Mishra, learned

Additional Advocate General appearing for the

appellant - State, and Mrs. Pragati Neekhra,

learned counsel for the respondent, at length.

9. It is contended by the learned counsel for the

appellant that though the suit as framed is not

maintainable at all, the Courts below have not

only entertained the suit but also granted decree

6 contrary to the various orders and notifications

issued under the provisions of the ULC Act, 1976.

It is submitted that when possession was already

taken and the land is recorded in the name of the

Government, trial court has erroneously decreed

the suit of the respondent and confirmed on appeal

on the premise that possession is not taken. It

is submitted that in fact, not only possession of

the subject land is taken and recorded in the name

of the Government, but the same is also allotted

to the Bhopal Development Authority for

construction of houses for the poor and

substantial amount is spent for construction of

houses. It is submitted that in any event, the

declaration as prayed for, is not at all

maintainable when the orders passed by the

competent authority have become final and

possession of the land was taken prior to coming

into force of the Repeal Act. The learned counsel

for the appellant, in support of his arguments,

has placed reliance on the judgments of this Court

7 in the cases of State of Assam v. Bhaskar Jyoti

Sarma and others1, Indore Development Authority v.

Manoharlal and others2 and Competent Authority,

Calcutta, under the Urban Land (Ceiling and

Regulation) Act, 1976 and another v. David Mantosh

and others3.

10. On the other hand, Mrs. Pragati Neekhra,

learned counsel for the respondent, has vehemently

opposed the case of the appellant and submitted

that when the original declarant died before

possession is taken, without issuing any fresh

notice to the only legal heir of the original

declarant, it was not open to the appellant

authorities to take possession consequent to the

orders passed under the ULC Act. It is submitted

that in any event, if the suit filed as prayed for

is not maintainable, this Court may mould the

relief by issuing appropriate directions. The

learned counsel, in support of her arguments, has 1 (2015) 5 SCC 321 2 (2020) 8 SCC 129 3 (2020) 12 SCC 542

8 placed reliance on the judgments of this Court in

the cases of Vidya Devi v. State of Himachal

Pradesh and others4, Mangalsen v. State of Uttar

Pradesh and another5, Gaiv Dinshaw Irani and others

v. Tehmtan Irani and others6 and State of Uttar

Pradesh v. Hari Ram7.

11. Having heard the learned counsel for the

parties, we have perused the impugned judgment and

other material placed on record.

12. As evident from the copy of the plaint, which

is placed on record, the respondent filed the suit

for declaration and permanent injunction. The

prayer in the suit reads as under:

“(A) A decree be passed in favour of the plaintiff and against the defendant to the effect that 16000.32 square meters of surplus declared land out of the disputed land of the ownership of the plaintiff the description whereof has been given in Para 1 is free from the provisions of Urban Land Ceiling Act, 1976 because the

4 (2020) 2 SCC 569 5 (2014) 15 SCC 332 6 (2014) 8 SCC 294 7 (2013) 4 SCC 280

9 possession whereof was not received by the government till the date the Repeal Act became effective.

(B) A permanent injunction be passed in favour of the plaintiff and against the defendant thereby directing the defendant not to interfere in the peaceful possession of the plaintiff.”

13. It is not in dispute that the land in

question is in the Urban Agglomeration and covered

by the ULC Act, 1976. As such, original owner

late Padam Singh has filed declaration under the

provisions of the ULC Act and after conducting

necessary inquiry, final orders were passed by the

competent authority declaring 16000.32 square

meters of land as surplus land. It is also clear

from the material placed on record that consequent

to final orders passed by the competent authority,

notifications under Section 10(1) and 10(3) of the

ULC Act were issued. Although, it is the case of

the respondent - plaintiff that possession was

taken without issuing notice, as such it cannot be

considered as valid taking over of possession, but

10 it is evident from the copy of the panchnama, the

respondent, who claims to be the legal heir of

late Padam Singh, is also a signatory as a witness

to the same. Though the respondent - plaintiff

was a witness to the panchnama for taking over

possession, a belated attempt was made by filing

the present suit by the respondent without even

questioning the orders passed by the competent

authority under the Act, declaring the land in

question as a surplus land. The trial court as

well as appellate court fell in error in recording

a finding that possession was not taken, inspite

of taking possession by conducting panchnama for

which respondent is a signatory. In the judgment

relied on by the learned counsel for the appellant

in the case of Indore Development Authority2, this

Court while dealing with the provisions of the

Land Acquisition Act has held that when the

possession of the land is taken by drawing a

panchnama, that amounts to taking physical

possession of the land. It is further held that

11 anybody claiming possession thereafter has to be

treated as a trespasser and has no right to

possess the land which vests with the State free

from all encumbrances. In view of the stand of

the appellant, of taking over possession of the

land by conducting panchnama for which respondent

is a signatory, it is difficult to believe the

stand of the respondent that possession was not

taken. In view of the stand of the respondent

that possession is with the respondent, this Court

called for a report from the District Judge.

Pursuant to the same, report dated 14.04.2021 was

sent by the learned Principal District and

Sessions Judge, Bhopal, Madhya Pradesh to this

Court. It is evident from such report that the

appellant has taken possession of the land and the

same was allotted to the Bhopal Development

Authority and the same was utilised for

construction of about 400 houses for needy slum

dwellers by spending huge amount. Thus, it is

12 clear that possession of the land was not only

taken but same is utilised for a public purpose.

14. The Urban Land (Ceiling and Regulation) Act,

1976 is a self-contained Code. Various

provisions of the Act make it clear that if any

orders are passed by the competent authority,

there is provision for appeal, revision before the

designated appellate and revisional authorities.

In view of such remedies available for aggrieved

parties, the jurisdiction of the civil courts to

try suit relating to land which is subject-matter

of ceiling proceedings, stands excluded by

implication. Civil court cannot declare, orders

passed by the authorities under the ULC Act, as

illegal or non est. More so, when such orders

have become final, no declaration could have been

granted by the civil court. In this regard

reference may be made to the judgment of this

Court in the case of Competent Authority,

Calcutta, under the Urban Land (Ceiling and

13 Regulation) Act, 19763. We are totally in

agreement with the aforesaid view taken by this

Court.

15. In this case, it is clear from the orders

passed by the competent authorities, that the

original declarant was holding excess land to the

extent of 16000.32 square meters. When the orders

passed by the competent authority and

consequential notifications issued under Section

10(1) and 10(3) of the ULC Act have become final,

it was not open for the respondent to file a suit

seeking declaration, as prayed for. As we are of

the view that jurisdiction of the civil courts is

barred by necessary implication, trial court fell

in error in entertaining the suit, as filed by the

respondent and even the first appellate court and

second appellate court have not considered the

various grounds raised by the appellant in proper

perspective.

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16. Although it is contended by the learned

counsel appearing for the respondent to mould the

relief, it is trite principle that where the suit

is filed with particular pleadings and reliefs, it

is to be considered with reference to pleadings on

record and the reliefs claimed in the suit only.

The judgments relied on by the learned counsel for

the respondent would not render any assistance to

support the case of the respondent. As we are in

agreement with the view taken by this Court

earlier in the case of Competent Authority,

Calcutta, under the Urban Land (Ceiling and

Regulation) Act, 19763 this appeal is to be allowed

by setting aside the judgment and decree passed by

the trial court as confirmed by the appellate

court on the ground that such suit itself was not

maintainable.

17. For the aforesaid reasons, the Civil Appeal

is allowed. The impugned judgment and decree

dated 24.12.2004 in Civil Suit No.138-A/2004

15 passed by the learned XII Civil Judge, Class - II,

Bhopal, as confirmed by the first appellate Court

vide judgment and decree dated 23.07.2005 in Civil

Appeal No.37-A/2005 and the High Court vide

judgment and order dated 08.11.2006 in S.A. No.129

of 2006, is set aside. Consequently, the suit

filed by the respondent before the learned XII

Civil Judge, Class-II, Bhopal stands dismissed,

with no order as to costs.

……………………………………………………J (R. SUBHASH REDDY)

……………………………………………………J (HRISHIKESH ROY)

NEW DELHI;

November 22, 2021

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