ORDER

1. This petition under Article 227 of Constitution of India has been filed seeking the following reliefs :--

“(1) To issue an order/direction/writ of appropriate nature quashing the impugned order dated 20.5.2010.

(ii) To issue an order/writ/direction of appropriate nature holding that the Petitioner are in actual possession of the land in question.

(iii) To issue order/writ/direction of appropriate nature prohibiting the Respondents to alienate or compel the Petitioner to vacate the land.

(iv) To issue order/writ/direction of appropriate nature directing the Respondents to modify the land records in the name of Petitioners.

(v) Any writ order or direction as this Hon'ble Court deems just and fair in the facts and circumstances of the case.

(vi) Costs be awarded to the petitioner.”

2. It is submitted by counsel for the petitioners that after several rounds of litigation, the matter in hand is confined to the fact as to whether the possession was taken as per the provisions of section 10(5) of Urban Land (Ceiling and Regulation) Act or not?

3. It is submitted that earlier by order dated 16.8.2005 passed in W.P.No.7715/2005 a Coordinate Bench of this Court had remanded the matter back to the competent authority to scrutinize and scan the provisions of section 10 of the Act by giving an opportunity of hearing to the petitioners so that they can putforth their stand. Accordingly, by order dated 20.5.2010 passed by Additional Collector, Jabalpur in Revenue Case No.463/A-90/B-9/81-82, arising out of Possession Case No.31/B-121/91-92 has held that the land was already declared surplus and de jure vested in the State Government and even if the petitioners are in possession of the same, then at the most it can be said that they are in possession as an encroachers.

4. Challenging the order passed by Additional Collector, it is submitted by counsel for petitioners that no actual possession was taken.

5. The Supreme Court in the case of State of U.P. v. Hari Ram, reported in (2013) 4 SCC 280 has held that the requirement of giving notice under sub-section (5) and (6) of section 10 of Act is mandatory. Although the word “may” has been used therein but 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.

6. It is submitted that paper possession will not be sufficient to hold that possession was taken in accordance with law. The counsel for petitioner has also relied upon the judgment passed by a Coordinate Bench of this Court in the case of Dattatrayrao Kale v. State of M.P. and others decided on 12.2.2019 passed in W.P.No.1426/2011 and order dated passed in the case of Durgadeen and others v. Secretary, the State of M.P. and others, decided on 8.9.2023 in W.P.No.14506/2010 (Indore Bench).

7. Per contra, the petition is vehemently opposed by the counsel for State. It is submitted that possession of the land in dispute was taken, which is apparent from the possession warrant (Annexure R5). It is further submitted that it is clear from the notesheet dated 4.3.1992 that the petitioner was not present in spite of the notice and therefore, ex parte proceedings for taking possession was done.

8. Heard the learned counsel for the parties.

9. In the notesheet dated 4.3.1992 it is mentioned that the officer concerned went to the village; whereas the petitioner was not present in spite of the notices. Ex parte proceedings for taking possession was done, possession warrant was prepared and it was directed to be kept in the record. Thereafter on the next date (however the notesheet is partially torn and the date is not visible) it was mentioned that the possession has been taken and the revenue record has also been corrected by mutating the name of the State Government. A case for payment of compensation to the owner has been prepared. No further