2016 Supreme(MP) 944

IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BENCH
J.K. MAHESHWARI, J.
Habib Mustafa (since dead) through legal representatives - Petitioners
Versus
State of Madhya Pradesh and others - Respondents
Writ Petition No. 4301 of 2016
Decided On : 17-08-2016

The proceedings would be deemed to be pending before the competent authority and such proceedings would abate.

Headnote:

URBAN LAND (CEILING AND REGULATION) REPEAL ACT, 1999 - SECTION 3, 4 - URBAN LAND (CEILING AND REGULATION) ACT, 1976 - SECTION 10(3), 10(5), 10(6) - POSSESSION OF LAND - ABATEMENT OF PROCEEDINGS - RES JUDICATA - DELAY AND LACHES - Held, the proceedings would be deemed to be pending before the competent authority and such proceedings would abate. The finding recorded in the orders impugned Annexures P/8 and P/10 dated 28.4.2010 and 5.2.2016 passed by the Upper Collector, Jabalpur without discussing the provisions of Sections 10(5) and 10(6) of the Principal Act as well as Sections 3 and 4 of the Repeal Act is not in conformity to law, therefore, set aside.

Fact of the Case:

The land bearing Khasra Nos.133/1, 133/3, 133/4 situated at Garha, District Jabalpur belong to the grand father of petitioner namely, Abdul Sattar. The proceedings under Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter shall be referred to as ''the Principal Act'') were drawn, and as per notification issued on 12.2.1993, the land was declared to be vested in the State Government under Section 10(3) of the Principal Act. After commencement of the Repeal Act, petitioners' father Habib Mustafa and Sheikh Shahadat submitted an application interalia contending that the possession of the land has not been taken from them making the payment of compensation as specified under Section 11 of the Principal Act, therefore, the proceedings stood abated.

Finding of the Court:

The possession of the land has not been taken over following the procedure as prescribed under Sections 10(5) and 10(6) of the Principal Act, therefore, as per Section 4 of the Repeal Act, such proceedings shall abate.

Issues: 1. whether this petition can be dismissed on the ground of delay and latches 2. whether the subsequent petition filed by legal heirs is liable to be dismissed as barred by res judicata 3. whether on vesting of the land of Late Abdul Sattar and upon his death, possession has been taken by the competent authority from the holder, or from the person in possession following the procedure as prescribed under Sections 10(5) and 10(6) of the Principal Act 4. if possession of the land has not been taken over, would it amounting to the proceedings pending and as per Section 4 of the Repeal Act, it would abate?

Ratio Decidendi: 1. The rule of res judicata applies if ''the matter directly and substantially in issue'' in a suit or proceeding was directly and substantially in issue in the previous suit between the ''same parties'' and had been heard and ''finally decided'' by a competent Court. 2. A question of jurisdiction of a Court, or of procedure, or a pure question of law unrelated to the right of the parties to a previous suit, is not res judicata in the subsequent suit. 3. To attract the principle of res judicata, conscious adjudication of an issue must be manifest on record. There must be an expression of opinion on the merits between the same parties, on the issue involved has been decided at the earlier stage of litigation. 4. The taking over of possession means to take over de facto possession of surplus land, and not on the papers. In case actual physical possession has not been taken it would mean the proceedings pending. 5. The compliance of Section 10(5) and 10(6) of the Principal Act is mandatory. The Apex Court observed that sub-section (5) of Section 10 of the Act, first time, speaks about ''possession'' using the word that ''where any land is vested'' in the State Government under sub-section (3) of Section 10 the competent authority may by notice in writing, order any person, who may be in possession of it to surrender or transfer possession to the State Government or to any other person duly authorised by the State Government. 6. The manner to take over the possession of the land acquired must be the procedure enshrined for taking over of the possession as per the provisions of law. If the possession has not been taken following the procedure as laid down it is not amounting to delivery of possession.

Final Decision: The petition succeeds and is hereby allowed. The orders impugned Annexures P/8 and P/10 dated 28.4.2010 and 5.2.2016 passed by the Upper Collector, Jabalpur are hereby set aside. As the possession of the land has not been taken over following the procedure as prescribed under Sections 10(5) and 10(6) of the Principal Act, therefore, as per Section 4 of the Repeal Act, such proceedings shall abate. In consequent thereto, it is directed that the name of the petitioners be recorded in the revenue papers deleting the name of the State Government within a period of three months from the date of communication of this order. In the facts and circumstances of the case, there shall be no orders as to costs.