Sulochana Chandrakant Galande vs Pune Municipal Transport & Ors

are that the Act, 1976 was enacted to provide for imposition of

a ceiling on vacant land in urban agglomerations for the acquisition of such land in excess of the ceiling limit, to

regulate the construction of buildings on such land and for

matters connected therewith. The said Act prescribed the

maximum ceiling to which the land can be retained by the

owner and determination of the surplus land and transfer

thereof in favour of the State after drawing the final statement

under Section 9 of the Act, 1976, and the State would acquire

the vacant land in excess of the ceiling limit under Section 10

of the Act, 1976. The Act came into force on 17 th February,

1976. On the said date, the suit land was not within urban

limits, however it was included in the urban area residential

zone only with effect from 17.05.1976, by extending the limits

of the Municipal Corporation. The suit land was acquired

under the Act, 1976, in the years 1978-1979 and its

possession was taken and handed over to Pune Municipal

Transport (for short PMT) for establishing a bus depot and

staff quarters. In 1988, the bus depot was constructed on a

part of the suit land, however, the appellant preferred a

revision under Section 34 of the Act, 1976, dated 6.4.1998

contending that the land ought not to have been acquired

2 under the Act, 1976, on the ground that on the date of

commencement of the Act, 1976, i.e. 17.2.1976, the suit land

was not within the limits of urban area. In order to

substantiate the claim, reliance was placed on the Judgment

of this Court in Atia Mohammadi Begum Vs. State of U.P. &

Ors., AIR 1993 SC 2465, wherein it has been held that for the

purpose of the Act, 1976, the categorization of the land in the

Master Plan in existence at the time of commencement of the

Act into force was a relevant factor and any subsequent

change in the Master Plan cannot be taken into consideration.

The said application was allowed by the Hon'ble Minister,

exercising his revisional powers by order dated 29.09.1998.

3. Being aggrieved, the PMT filed writ petition No. 1018 of

1999 before the High Court of Maharashtra and the said writ

petition has been allowed vide Judgment and order dated

20.02.2006 in spite of the fact that the Act, 1976 stood

repealed by the Urban Land (Ceiling and Regulation) Repeal

Act, 1999 (hereinafter called `Act 1999') with effect from

18.03.1999. Subsequent thereto, this Court in State of A.P.

& Ors. Vs. N. Audikesava Reddy & Ors., AIR 2002 SC 5

3 overruled the Judgment in Atia Mohammadi Begum (supra).

Hence, this appeal.

4. Sh. A.K. Ganguly, learned senior counsel for the

appellant, has submitted that the High Court erred in

interfering with the order of the Revisional Authority, which

was fully justified being in consonance with the law laid down

by this Court in Atia Mohammadi Begum (Supra). The

provisions of Section 34 of the Act, 1976, do not provide for

any limitation and in case, proceedings had been initiated

against the appellant in contravention of the Act, 1976 itself,

the order passed by the prescribed authority dated 23.05.1979

was a nullity, and, therefore, was unenforceable and

inexecutable. It has also been pointed out by Mr. Ganguly

that originally, the land was allotted to PMT for establishing a

bus depot, though the land was earmarked for residential

purposes, thus, it was not permissible for the respondent

authority to change the user of the land. If the land is vested

in the State free from all encumbrances without any authority

of law, the original tenure holder is entitled to possession

4 thereof. The Act, 1976, itself stood repealed and is no more in

force. Thus, the appeal deserves to be allowed.

5. On the contrary, Sh. Sanjay V. Kharde and Sh. Amol

Chitale, learned counsel appearing for respondents, have

submitted that the judgment in Atia Mohammadi Begum

(supra) has been overruled by this Court in N. Audikesava

Reddy (supra). Therefore, it cannot be held that Atia

Mohammadi Begum (supra) laid down the correct law. The

order passed by the prescribed authority dated 23.05.1979

attained finality as it was not challenged by the appellant by

filing an appeal under Section 12 before the Urban Land

Tribunal, though the Act, 1976, also provides for a second

appeal to the High Court. The appellant could not maintain

the Revision after expiry of about two decades. The

Government of Maharashtra could not have entertained the

Revision at such belated stage. The revision was liable to be

rejected only on the ground of delay. The land, after being

declared surplus under the Act, 1976, was acquired under

Section 10 of the Act, 1976, and it vested in the State

absolutely free from all encumbrances. The land once vested

5 cannot be divested. After vesting the land in the State, in

case, the State authority allots the land to any other

department or corporation for a specific purpose, it does not

loose the competence to change the user of the land and in

case, it is changed, the original tenure holder cannot be heard

raising any grievances whatsoever. The Act, 1976, stood

repealed, but this fact would have no bearing on this case for

the reason that possession of the suit land had been taken in

1979 itself. The appeal lacks merit and is liable to be

dismissed.

6. We have considered the rival submissions made by

learned counsel for the parties and perused the record. The

Scheme of the Act, 1976 provides that the prescribed authority

shall make an order declaring the surplus land. The land

would be acquired by the State and tenure holder is entitled to

have an amount of compensation. Section 10(3) of the Act,

1976, provides that after acquisition and publication of the

Notification under Section 10(1) of the Act, 1976 "the land

shall be deemed to have vested absolutely in the State

6 Government free from all encumbrances with effect from the

date so specified".

7. Section 11 of the Act, 1976, provides for the Mode of

Payment of the amount for vacant land acquired. Any person

aggrieved, has a right to file an appeal before the Land

Tribunal and a second appeal before the High Court.

8. The provisions of Section 10(3) of the Act, 1976 are

analogous to Section 16 of the Land Acquisition Act, 1894

(hereinafter called the `Act 1894'). Acquisition proceedings

cannot be withdrawn/abandoned in exercise of the powers

under Section 48 of the Act 1894 or Section 21 of the General

Clauses Act, 1897 once the possession of the land has been

taken. (Vide The State of Madhya Pradesh & Ors. Vs.

Vishnu Prasad Sharma & Ors., AIR 1966 SC 1593; LT.

Governor of Himachal Pradesh & Anr. Vs. Sri Avinash

Sharma, AIR 1970 SC 1576; Pratap & Anr. Vs. State of

Rajasthan & Ors., AIR 1996 SC 1296; Mandir Shree Sita

Ramji alias Shree Sitaram Bhandar Vs. Land Acquisition

Collector & Ors., AIR 2005 SC 3581; Bangalore

7 Development Authority & Ors. Vs. R. Hanumaiah & Ors.,

(2005) 12 SCC 508; and Hari Ram & Anr. Vs. State of

Haryana & Ors., (2010) 3 SCC 621).

9. The meaning of the word `vesting' has been considered by

this Court time and again. In The Fruit & Vegetable

Merchants Union Vs. The Delhi Improvement Trust, AIR

1957 SC 344, this Court held that the meaning of word

`vesting' varies as per the context of the Statute in which the

property vests. While considering the case under Sections 16

and 17 of the Act 1894, the Court held as under:-

"...the property acquired becomes the property of Government without any condition or limitations either as to title or possession. The legislature has made it clear that vesting of the property is not for any limited purpose or limited duration."

(Emphasis added).

10. "Encumbrance" actually means the burden caused by an

act or omission of man and not that created by nature. It

means a burden or charge upon property or a claim or lien on

the land. It means a legal liability on property. Thus, it

constitutes a burden on the title which diminishes the value of

the land. It may be a mortgage or a deed of trust or a lien of

8 an easement. An encumbrance, thus, must be a charge on the

property. It must run with the property. (Vide Collector of

Bombay Vs. Nusserwanji Rattanji Mistri & Ors., AIR 1955

SC 298; H.P. State Electricity Board & Ors. Vs. Shiv K.

Sharma & Ors., AIR 2005 SC 954; and AI Champdany

Industries Ltd. Vs. Official Liquidator & Anr., (2009) 4 SCC

486).

11. In State of Himachal Pradesh Vs. Tarsem Singh &

Ors., AIR 2001 SC 3431, this Court held that the terminology

`free from all encumbrances' used in Section 16 of the Act

1894, is wholly unqualified and would en-compass the

extinguishing of "all rights, title and interests including

easementary rights" when the title vests in the State.

Thus, "free from encumbrances" means vesting of land in

the State without any charge or burden in it. Thus, State has

absolute title/ownership over it.

12. In Satendra Prasad Jain & Ors. Vs. State of U.P. &

Ors., AIR 1993 SC 2517, this Court held that once land vests

in the State free from all encumbrances, it cannot be divested. 9 The same view has been reiterated in Awadh Bihari Yadav &

Ors. Vs. State of Bihar & Ors., (1995) 6 SCC 31; U.P. Jal

Nigam, Lucknow Vs. M/s. Kalra Properties (P) Ltd.,

Lucknow & Ors., AIR 1996 SC 1170; Pratap & Anr. (Supra);

Chandragauda Ramgonda Patil & Anr. Vs. State of

Maharashtra & Ors., (1996) 6 SCC 405; Allahabad

Development Authority Vs. Nasiruzzaman & Ors., (1996) 6

SCC 424; State of Kerala & Ors. Vs. M. Bhaskaran Pillai &

Anr., AIR 1997 SC 2703; M. Ramalinga Thevar Vs. State of

Tamil Nadu & Ors., (2000) 4 SCC 322; Printers (Mysore) Ltd.

Vs. M.A. Rasheed & Ors., (2004) 4 SCC 460; Bangalore

Development Authority & Ors. Vs. R. Hanumaiah & Ors.,

(2005) 12 SCC 508; and Government of Andhra Pradesh &

Anr. Vs. Syed Akbar, AIR 2005 SC 492.

13. So far as the change of user is concerned, it is a settled

legal proposition that once land vests in the State free from all

encumbrances, there cannot be any rider on the power of the

State Government to change user of the land in the manner it

chooses.

10 In a similar situation, in Gulam Mustafa & Ors. Vs. The

State of Maharashtra & Ors., AIR 1977 SC 448, this Court

held as under:-

"Once the original acquisition is valid and title has vested in the Municipality, how it uses the excess land is no concern of the original owner and cannot be the basis for invalidating the acquisition. There is no principle of law by which a valid compulsory acquisition stands voided because long later the requiring Authority diverts it to a public purpose other than the one stated in the.......declaration."

14. Re-iterating a similar view in C. Padma & Ors. Vs.

Deputy Secretary to the Government of Tamil Nadu & Ors.,

(1997) 2 SCC 627, this Court held that if by virtue of a valid

acquisition of land, land stands vested in the State, thereafter,

claimants are not entitled to restoration of possession on the

grounds that either the original public purpose is ceased to be

in operation or the land could not be used for any other

purposes.

15. In Bhagat Singh etc. Vs. State of U.P. & Ors., AIR 1999

SC 436; Niladri Narayan Chandradhurja Vs. State of West

Bengal, AIR 2002 SC 2532; and Northern Indian Glass

11 Industries Vs. Jaswant Singh & Ors., (2003) 1 SCC 335, this

Court held that, the land user can be changed by the

Statutory Authority after the land vests in the State free from

all encumbrances.

16. In view of the above, the law can be summarised that

once the land is acquired, it vests in the State free from all

encumbrances. It is not the concern of the land owner how his

land is used and whether the land is being used for the

purpose for which it was acquired or for any other purpose. He

becomes persona non grata once the land vests in the State.

He has a right to get compensation only for the same. The

person interested cannot claim the right of restoration of land

on any ground, whatsoever.

17. In the instant case, there is no pleading by the appellant

in respect of the receipt of compensation. No explanation

could be furnished as to under what circumstances the appeal

was not filed if the appellant was so aggrieved by the order of

final assessment under Section 9 of the Act, 1976.

12

18. The suit land was acquired in 1979. Revision was

preferred in 1998, after expiry of about two decades. Section

34 reads as under :-

"The State Government may, on its own motion, call for and examine the records of any order passed or proceeding taken under the provisions of this Act and against which no appeal has been preferred under Section 12 or Section 30 or Section 33 for the purpose of satisfying itself as to the legality or propriety of such order or as to the regularity of such procedure and pass such order with respect thereto as it may think fit .........."

19. Undoubtedly, Section 34 does not prescribe any

limitation during which the Revisional power can be exercised

by the State Government either on application or suo moto.

The question does arise as to whether absence of limitation in

Section 34 confers unfettered power to vary or revoke the

order of the prescribed authority without any outside

limitation in point of duration i.e. does it confer an everlasting

or interminable power in point of time. If the contention

raised by Mr. Ganguly that such provisions of Section 34 do

not prescribe any limitation, and it confers an interminable

13 power upon the State Government in point of time to exercise

the Revisional power, is accepted, there will be no finality of

the proceedings taken under the Act, 1976.

20. In State of Gujarat Vs. Patel Raghav Natha & Ors. AIR

1969 SC 1297, this Court considered a similar provision in

Bombay Land Revenue Code, 1879, which also did not provide

any limitation for exercising the Revisional power by the

Commissioner under Sections 65 and 211 of the Code. The

Court held that in spite of the fact that the provisions do not

prescribe for any limitation for exercising such Revisional

powers, "this power must be exercised in reasonable time and

the length of the reasonable time must be determined by the

facts of the case and the nature of the order, which is being

revised". The Court further explained that if the power is not

exercised within the reasonable time, it may disturb the

possession of the person after an inordinate delay and the

occupant who had spent his life savings in developing the

land, may lose the benefit thereof. Therefore, the authority

must not entertain revisions at a belated stage. 14

21. In Ibrahimpatnam Taluk Vyavasaya Coolie Sangham

Vs. K. Suresh Reddy & Ors., (2003) 7 SCC 667, this Court

considered the provisions of the Andhra Pradesh (Tilangana

Area) Tenancy and Agricultural Lands Act, 1950, wherein the

provisions contained in Section 50-B(4) empowered the

statutory authority to exercise suo moto revisional power at

any time. The Court held as under :-

Use of the words "at any time" in sub- Section (4) of Section 50-B of the Act only indicates that no specific period of limitation is prescribed within which the suo moto power could be exercised reckoning or starting from a particular date advisedly and contextually.

Exercise of suo moto power depended on facts and circumstances of each case. In cases of fraud, this power could be exercised within a reasonable time from the date of detection or discovery of fraud.

While exercising such power, several factors need to be kept in mind such as effect on the rights of the third parties over the immovable property due to passage of considerable time, change of the provisions of other Acts (such as Land Ceiling Act).........

Use of the words "at any time" in sub-

section (4) of Section 50-B of the Act cannot be rigidly read letter by letter. It must be read and construed contextually and reasonably. If one has to

15 simply proceed on the basis of the dictionary meaning of the words "at any time", the suo moto power under sub- Section (4) of Section 50-B of the Act could be exercised even after decades and then it would lead to anomalous position leading to uncertainty and complications seriously affecting the rights of the parties, that too, over immovable properties. Orders attaining finality and certainty of the rights of the parties accrued in the light of the orders passed must have sanctity. Exercise of suo moto power "at any time" only means that no specific period such as days, months or years are not prescribed reckoning from a particular date. But, that does not mean that "at any time" should be unguided and arbitrary. In this view, "at any time" must be understood as within a reasonable time depending on the facts and circumstances of each case in the absence of prescribed period of limitation."

22. The said judgment was approved and followed by this

Court in State of Andhra Pradesh & Anr. Vs. T.Yadagiri

Reddy & Ors., (2008) 16 SCC 299.

23. The legislature in its wisdom did not fix a time limit for

exercising the revisional power nor inserted the words "at any

time" in Section 34 of the Act, 1976. It does not mean that the

legislature intended to leave the orders passed under the Act

16 open to variation for an indefinite period inasmuch as it would

have the effect of rendering title of the holders/allottee(s)

permanently precarious and in a state of perpetual

uncertainty. In case, it is assumed that the legislature has

conferred an everlasting and interminable power in point of

time, the title over the declared surplus land, in the hands of

the State/allottee, would forever remain virtually insecure.

The Court has to construe the statutory provision in a

way which makes the provisions workable, advancing the

purpose and object of enactment of the statute.

In view of the above, we reach the inescapable conclusion

that the Revisional powers cannot be used arbitrarily at

belated stage for the reason that the order passed in Revision

under Section 34 of the Act, 1976, is a judicial order. What

should be reasonable time, would depend upon the facts and

circumstances of each case.

24. If some person has taken a relief from the Court by filing

a Writ Petition immediately after the cause of action had

arisen, petitioners cannot take the benefit thereof resorting to

17 legal proceedings belatedly. They cannot take any benefit

thereof at such a belated stage for the reason that they cannot

be permitted to take the impetus of the order passed at the

behest of some diligent person.

25. In State of Karnataka & Ors. Vs. S.M. Kotrayya & Ors.,

(1996) 6 SCC 267, this Court rejected the contention that a

petition should be considered ignoring the delay and laches,

on the ground that the petitioner therein filed the petition just

after coming to know of the relief granted by the Court in a

similar case, as the same cannot furnish a proper explanation

for delay and laches. The Court observed that such a plea is

wholly unjustified and cannot furnish any ground for ignoring

delay and laches.

26. The same view has been reiterated by this Court in

Jagdish Lal & Ors. Vs. State of Haryana & Ors., AIR 1997

SC 2366, observing as under:-

"Suffice it to state that appellants may be sleeping over their rights for long and elected to wake-up when they had impetus from Veerpal Chauhan and Ajit Singh's ratio..........desperate attempts of the appellants to re-do the seniority, held

18 by them in various cadre.......are not amenable to the judicial review at this belated stage. The High Court, therefore, has rightly dismissed the writ petition on the ground of delay as well."

27. In M/s. Rup Diamonds & Ors. Vs. Union of India &

Ors., AIR 1989 SC 674, this Court considered a case where

petitioner wanted to get relief on the basis of the judgment of

this Court wherein a particular law had been declared ultra

vires. The Court rejected the petition on the ground of delay

and laches observing as under:-

"There is one more ground which basically sets the present case apart. Petitioners are re-agitating claims which they have not pursued for several years. Petitioners were not vigilant but were content to be dormant and close to sit on the fence till somebody else's case came to be decided."

28. However, it will be a different case altogether, where the

law, under which an order has been passed, is declared ultra

vires/unconstitutional and the order, thus, passed is rendered

a nullity. The party may ask for appropriate relief as property

had been acquired under the law, later so declared void. [See

19 Amrit Bhikaji Kale & Ors. Vs. Kashinath Janardhan Trade

& Anr., AIR 1983 SC 643; and M/s. Rup Diamonds (supra)].

29. Be that as it may, the law laid down by this Court in Atia

Mohammadi Begum (supra) has not been approved by this

Court in subsequent Judgment i.e. N. Audikesava Reddy

(supra), wherein it has clearly been held as under :-

"The observations that the authorities by their subsequent action after 17th February, 1976 cannot alter or introduce the master plan which has the effect of increasing the area of excess vacant land do not represent the correct view of law. The aforesaid explanation to Section 6(1), inter alia, provides that where any land, not being vacant land, situated in a State in which this Act is in force has becomes vacant land by any reason whatsoever, the date on which such land becomes vacant land would be the date of the commencement of the Act as regards such land.

Development and town planning are ongoing processes and they go on changing from time to time depending upon the local needs. That apart, the definition of the "master plan" in Section 2(h) is very significant. It reads as under:

"2(h) 'master plan', in relation to an area within an urban agglomeration or any part

20 thereof, means the plan (by whatever name called) prepared under any law for the time being in force or in pursuance of an order made by the State Government for the development of such area or part thereof and providing for the stages by which such development shall be carried out."

The above provision, inter alia, contemplates the master plan prepared under any law for the time being in force for development of an area. The plan shall also provide for the stages by which such development shall be carried out. It is evident from the aforesaid definition of master plan that it takes in view any plan prepared even subsequent to the coming into force of the Act. Further, the explanation to Section 6(1), as noticed above, very significantly provides that every person holding vacant land in excess of the ceiling limit at the commencement of the Act shall file a statement before the competent authority and "the commencement of the Act" under clause (2) would be when the land becomes vacant for any reason whatsoever. Therefore, the date of commencement of the Act in a case where the land, which was not vacant earlier, would be the date on which such land becomes vacant land. It, thus, contemplates a situation of land, not being vacant, becoming vacant due to preparation of a master plan subsequent

21 to 17th February, 1976. Further, the provisions of the Act require filing of a statement under Sections 6 7 15 and 16 from time to time as and when land acquires the character of a vacant land. Obligation to file statement under the Act arises when a person comes to hold any vacant land in excess of the ceiling limit, which date necessarily may not be 17th February, 1976. It would all depend on the facts and circumstances of each case.

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." (Emphasis added)

30. In view of the above, there is no justification for this

Court to enforce the law laid down in Atia Mohammadi

Begum (supra), which has subsequently been held not to be

valid law. Submission made by Sh. Ganguly, that the initial

proceedings instituted against the appellant were a nullity as

the land could not be covered under the Act, 1976, remains

preposterous.

31. Undoubtedly, the Act, 1976, stood repealed by the Act

1999. However, it has no bearing on this case for the reason

22 that proceeding pending in any Court relating to the Act,

1976, stood abated, provided the possession of the land had

not been taken from the owner. Therefore, in a case, where

the possession has been taken, the repeal of the Act would not

confer any benefit on the owner of the land. [Vide Pt. Madan

Swaroop Shrotiya Public Charitable Trust Vs. State of U.P.

& Ors., (2000) 6 SCC 325; Ghasitey Lal Sahu & Anr. Vs.

Competent Authority, (2004) 13 SCC 452; and Mukarram

Ali Khan Vs. State of Uttar Pradesh & Ors., (2007) 11 SCC

90].

32. From the above, the following factual situation emerges:

(I) The land was declared surplus under the Act, 1976, and acquired in 1979.

(II) Possession of the land was taken in 1979 by the State of Maharashtra and it was handed over to PMT for construction of the residential quarters for the staff.

(III) Appellant has not stated anywhere in the pleadings as to whether any amount/

compensation as provided under the Act, 1976, had been received/accepted by her.

23 (IV) Appellant, for the reason best known to her, did not file appeal before the Land Tribunal, though Act, 1976 provides for two appeals.

(V) Appellant woke up from deep-slumber only after five years of the judgment of this Court in Atia Mohammadi Begum (supra) and filed revision under Section 34 of the Act, 1976, in 1998. (VI) The State Government allowed the revision without taking into consideration the point of delay; rather it relied upon its own circulars. (VII) The State Government did not consider the consequences and particularly the issue of dis-

possession of the appellant from the land in dispute in 1978 itself.

(VIII) The judgment in Atia Mohammadi Begum (supra) has been over-ruled by this Court in N. Audikesava Reddy (supra).

33. Therefore, the law, as exists today, is that the land in

dispute could be subjected to the provisions of the Act, 1976,

with effect from 17.5.1976, i.e. the date on which the suit land

came within the limits of the Municipal Corporation. The Act

stood repealed in 1999, but the proceedings pending in any

court would stand abated provided the tenure-holder was in

24 possession of the land on the date of the commencement of

the Act 1999. The High Court has taken note of the fact that

the appellant's revision had been entertained only on the basis

of the judgment of this Court in Atia Mohammadi Begum

(supra), which stood over-ruled by the subsequent judgment

in N. Audikesava Reddy (supra).

34. The aforesaid factual position makes it clear that the

appellant is not entitled for any relief whatsoever as per the

law, as it exists today. The land once vested in the State

cannot be divested. Once the land is vested in the State it has

a right to change the user. The appellant cannot be heard

raising grievance on either of these issues.

35. Thus, in view of the above, the appeal lacks merit and is

accordingly dismissed. No order as to costs.

..................................J. (P. SATHASIVAM)

.............................

.....J. New Delhi, (Dr. B.S. CHAUHAN)

25 August 3, 2010

26 27