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Supreme Court of India
State Of Orissa . vs Sakhi Bewa (D) Thr.Lrs.. on 23 November, 2021Author: M.R. Shah

Bench: M.R. Shah, Sanjiv Khanna

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6490 OF 2014

State of Orissa & Ors. …Appellant(s)

Versus

Sakhi Bewa (Dead) Through LRs. …Respondent(s)

JUDGMENT

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment

and order dated 30.07.2009 passed by the High Court of Orissa in OJC

No.4048 of 1994 by which the High Court has allowed the said writ

petition preferred by the respondents herein – original writ petitioners –

original land owners and has quashed and set aside the orders passed

by the Competent Authority under the Urban Land (Ceiling and

Regulation) Act, 1976 (hereinafter referred to as “the Act, 1976”)

declaring Ac. 0.865-7 area of the land as excess vacant land under the

provisions of the Act, 1976, the State has preferred the present appeal.
Signature Not Verified

Digitally signed by
NEETU KHAJURIA
Date: 2021.11.23
17:17:35 IST
Reason:

2. The facts leading to the present appeal in nutshell are as under:-

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2.1 That the proceedings under the provisions of the Act, 1976

were initiated with respect to the holdings of the original writ

petitioner No.1 – Sakhi Bewa. By order dated 01.03.1984,

the Competent Authority under the Act, 1976 declared

Ac. 0.865-7 as excess vacant land. Final statement under

Section 9 of the Act, 1976 was issued on 27.03.1984.

2.2 That thereafter a notification under Section 10(1) of the Act,

1976 was issued on 30.04.1984 with respect to the land

declared as excess vacant land. The original landowners

filed an appeal before the Appellate Authority in the month of

May, 1984. A declaration under Section 10(3) of the Act,

1976 was published on 26.10.1984. That thereafter the

Competent Authority sent a notice dated 30.11.1984 under

Section 10(5) of the Act, 1976 to the respondents – original

landowners to deliver vacant possession of the excess

vacant land to Tehsildar.

2.3 That an appeal was preferred by the original landowners

against the order passed by the Competent Authority

declaring Ac. 0.865-7 land as excess vacant land, which

came to be dismissed by the Board of Revenue – Appellate

Court vide order dated 05.05.1987.
2
2.4 That according to the State the Tehsildar, Sadar, Cuttack,

has taken over the possession of the land on 25.04.1988.

The respondents – original writ petitioners filed a writ petition

being OJC No.2550 of 1987 before the High Court

challenging the order passed by the Competent Authority

dated 01.03.1984 as well as the order passed by the First

Appellate Court – Board of Revenue. The said writ petition

came to be dismissed for non-prosecution on 01.11.1991.

After a period of approximately three years a restoration

application was filed being M.J.C. No.10 of 1994. But the

same came to be dismissed by the Division Bench by

observing that the grounds for the delay are far from

satisfactory and that there is no justification either for

condoning the delay and annulling the earlier order of

dismissal. However, the Division Bench observed that the

petitioner may file a fresh petition, if permissible. That

thereafter the respondents herein filed a fresh petition before

the High Court being OJC No.4048 of 1994 again

challenging the order passed by the competent authority

dated 01.03.1984 as well as the order passed by the Board

of Revenue dated 05.05.1987 which were as such subject

matter of writ petition being OJC No.2550 of 1987, which

was dismissed for non-prosecution on 01.11.1991. That an
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ex parte ad interim order was passed by the High Court on

10.06.1994 and it was ordered that the authorities may take

over the possession of the vacant surplus land but will not

change the nature or character of the land until further orders

from the court. At this stage, at the cost of repetition it is

observed that all throughout, the case on behalf of State was

that even prior to said ex parte ad interim order, the

possession of the surplus land was already taken over by the

Tehsildar on 25.04.1988. A counter was filed on behalf of

State opposing the writ petition in which it was also

specifically pointed out that the possession of the surplus

land has been taken over by the Tehsildar on 25.04.1988.

The respondents, however, dispute the said position, their

contention being that they have always been in possession

of the property and the order dated 25.04.1988 is a paper

order and does not reflect the true and correct position.

Without commenting on the merits, it would be relevant to

note here that the order dated 25.04.1988 does refer to

demarcation by the authorities and that the surplus land was

taken over by F.I. Sadar II and Amin Sri G.C. Pattanaik on

02.04.1988, but this being a question of fact, it would have to

be examined and ascertained. The ascertainment of this fact

4
is necessary in view of the enactment of the Repeal Act, as

noticed below.

2.5 That thereafter the Act, 1976 came to be repealed by the

Urban Land (Ceiling and Regulation) Repeal Act, 1999

(hereinafter referred to as “the Repeal Act, 1999”) vide

notification dated 22.03.1999. That vide resolution dated

05.04.2002, the State of Orissa adopted the Urban Land

(Ceiling and Regulation) Repeal Act, 1999.

2.6 That thereafter on misreading and misinterpretation of the

notification / communication dated 24.07.2002 and without

even dealing with the case on behalf of the State that the

possession of the surplus land has already been taken over

on 25.04.1988 and solely on the ground that compensation

for the surplus land has not been paid, the Division Bench of

the High Court by the impugned judgment and order has

quashed and set aside the order passed by the Competent

Authority dated 01.03.1984 as well as the order passed by

the First Appellate Court – Board of Revenue dated

05.05.1987. The High Court also further observed that as

the Act, 1976 stands repealed, the lands belonging to the

respondents- landowners shall be given back to them.
5
2.7 Feeling aggrieved and dissatisfied with the impugned

judgment and order passed by the Division Bench of the

High Court of Orissa, the State has preferred the present

appeal.

3. We have heard Shri Sibo Sankar Mishra, learned counsel

appearing on behalf of the State and Dr. Menaka Guruswamy, learned

senior counsel appearing on behalf of the respondents.

4. Having heard the learned counsel appearing for the respective

parties and having gone through and considered the impugned judgment

and order passed by the Division Bench of the High Court and

chronological dates and events narrated hereinabove, we are of the

opinion that the impugned judgment and order passed by the High Court

is unsustainable in law as well as on facts. It cannot be disputed that in

the impugned judgment and order the High Court has not at all

considered the merits of the case and has quashed and set aside the

order passed by the Competent Authority dated 01.03.1984 and the

order passed by the First Appellate Court – Board of Revenue dated

05.05.1987 solely on the ground that the Act, 1976 has been repealed

and that the compensation for the surplus land has not been paid. The

High Court has noted that in the resolution adopting the Repeal Act,

6
1999, it has been declared that no compensation should be paid for

lands, possession of which has not been taken over by the State

Government after vesting under Section 10(3) of the Act, 1976 and the

legal process initiated under the said Act will also be closed.

4.1 That it appears and though it is not clear from paragraph 8, which

is the only paragraph, in which some observations are made by the High

Court, the High Court has observed that as an interim order was

operative and nothing has been averred regarding payment of

compensation during pendency of the writ petition, no useful purpose

would be served to remand the matter since the Act, 1976 has been

repealed and consequently, the High Court has quashed and set aside

the orders passed by the Competent Authority as well as the First

Appellate Court. However, the High Court has not at all properly

appreciated and considered Sections 3 and 4 of the Repeal Act, 1999.

Sections 3 and 4 of the Repeal Act, 1999 read as under:-

“3. Savings.— (1) The repeal of the principal Act shall not
affect—

(a) the vesting of any vacant land under sub-section
(3) of Section 10, possession of which has been
taken over by the State Government or any person
duly authorised by the State Government in this
behalf or by the competent authority;

(b) the validity of any order granting exemption under
sub-section (1) of Section 20 or any action taken
thereunder, notwithstanding any judgment of any
court to the contrary;
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(c) any payment made to the State Government as a
condition for granting exemption under sub-section
(1) of Section 20.

(2) Where—

(a) any land is deemed to have vested in the State
Government under sub-section (3) of Section 10 of
the principal Act but possession of which has not
been taken over by the State Government or any
person duly authorised by the State Government
in this behalf or by the competent authority; and

(b) any amount has been paid by the State
Government with respect to such land

then, such land shall not be restored unless the amount
paid, if any, has been refunded to the State Government.

4. Abatement of legal proceedings.—All proceedings
relating to any order made or purported to be made under
the principal Act pending immediately before the
commencement of this Act, before any court, tribunal or
other authority shall abate:

Provided that this section shall not apply to the proceedings
relating to sections 11, 12, 13 and 14 of the principal Act in
so far as such proceedings are relatable to the land,
possession of which has been taken over by the State
Government or any person duly authorised by the State
Government in this behalf or by the competent authority.”

4.2 A fair reading of Sections 3 and 4 of the Repeal Act, 1999 makes it

clear that all proceedings relating to any order made or purported to be

made under the principal Act (Act, 1976) pending immediately before the

commencement of the Repeal Act, 1999, before any court, tribunal or

other authority shall abate. Section 4 of the Repeal Act shall not apply

provided possession of land has been taken over by the State

8
Government or any person duly authorised by the State Government in

this behalf or by the competent authority. Therefore, if the possession of

the surplus land/land has been taken over by the State Government or

any person duly authorised by the State Government in this behalf or by

the competent authority, in that case, the proceedings relating to any

order made under the principal Act, 1976 shall not abate, meaning

thereby that the Repeal Act, 1999 shall not affect all those proceedings

with respect to the land of which the possession has been taken over.

Therefore, before declaring the proceedings as having abated in view of

Sections 3 and 4 of the Repeal Act, 1999, it has to be considered and

decided whether possession of the surplus land/land has been taken

over by the State Government or any person duly authorised by the

State Government in this behalf or by the competent authority or not. If it

is found and held that the possession of the surplus land has been taken

over, in that case, the proceedings shall not be declared as having been

abated.

4.3 In the present case, in the impugned judgment and order, the

Division Bench of the High Court has not at all considered and/or given

any specific findings on the possession being taken over by the Tehsildar

on 25.04.1988. There is no discussion at all on the aspect whether the

possession taken over by the Tehsildar. It appears that solely on the

ground that the payment of compensation has not been made and ad

9
interim order was operating, the High Court has quashed and set aside

the orders passed by the Competent Authority as well as the First

Appellate Court. However, the High Court has not properly appreciated

and considered the fact that the payment of compensation has nothing

to do with the taking over of possession. Payment of compensation

under the Act, 1976 and taking over the possession after the notification

issued under Section 10(3)/10(5) of the Act, 1976, both are different and

distinct.

4.4 Even assuming that the compensation has not been paid, in that

case also, it cannot be presumed that the possession was not taken

over. It appears that even the Division Bench of the High Court has also

misread and misinterpreted the resolution/notification dated 24.07.2002.

By the resolution/notification dated 24.07.2002, the following

clarifications were issued by the State Government:-

“Thus as per the provisions laid down under the said
Repeal Act, the following clarifications are issued.

i) No compensation should be paid for land,
possession of which has not been taken over by
the Govt. after vesting U/s. 10(3) of the Urban
Land (Ceiling & Regulation) Act, 1976. The Legal
process initiated under the said Act will also be
closed.

ii) Where possession of land has been taken over
and compensation has not been paid or partly

10
paid, steps should be taken for payment of
compensation.

iii) Continuance of Govt. Control over the exempted
land is no more required with effect from
5.4.2002.”

4.5 As per the said clarification dated 24.07.2002 no compensation

should be paid for land, possession of which has not been taken over by

the Government after vesting U/s. 10(3) of the Urban Land (Ceiling &

Regulation) Act, 1976 and the legal process initiated under the said Act

is also to be closed. As per clause (ii) where the possession of the land

has been taken over and the compensation has not been paid or partly

paid, steps should be taken for payment of compensation. Therefore,

even as per the said clarification dated 24.07.2002, where the

possession of the land has been taken over and the compensation has

not been paid or party paid, the steps were required to be taken for

payment of compensation. It does not speak and/or clarify that if the

compensation is not paid, the possession is presumed to be not taken

and/or the legal process initiated under the Act, 1976 will be closed. If

we consider paragraphs 7 and 8 of the impugned judgment and order, it

appears that the High Court has misread and misinterpreted the

clarification notification dated 24.07.2002 and even the resolution dated

05.04.2002. Though the resolution/clarification dated 24.07.2002 is in

two parts reproduced hereinabove, the High Court has not at all

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considered and dealt with part (ii) of the clarification namely “where the

possession of the land has been taken over and the compensation has

not been paid or partly paid, steps should be taken for payment of

compensation.”

4.6 Even the Division Bench of the High Court has also not considered

the interim order dated 10.06.1994 in its true spirit. In the ex parte ad

interim order dated 10.06.1994, the High Court has ordered that the

authorities may take over possession of the vacant surplus land but will

not change the nature or character of the land until further orders from

the court.

4.7 At this stage, it is required to be noted that according to the State,

the possession of the surplus land was already taken over on

25.04.1988 and all throughout it was the case on behalf of the State that

the possession of surplus land was taken over on 25.04.1988. At this

stage, it is also required to be noted that interim order dated 10.06.1994

was an ex parte ad interim order. The interim order, as worded, is not

conclusive proof either way on the question of possession. Even in the

impugned judgment and order, the Division Bench of the High Court has

observed that since the Act, 1976 has been repealed, the land belonging

to the original writ petitioners shall be given back to them. Meaning

thereby, it can be said that even according to the High Court also the

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possession of the surplus land was not with the original writ petitioners.

Whereas, this observation is not a finding on whether possession was

taken. Be that as it may, as the High Court has not at all dealt with the

petition on merits and has allowed the writ petition on the aforesaid

grounds only, the impugned judgment and order passed by the High

Court cannot be sustained and the same deserves to be quashed and

set aside and the writ petition has to be remanded to the High Court to

decide the same afresh and to consider the aspects stated hereinabove.

The observations and views expressed by us are tentative and prima

facie. The question whether possession was taken over being primordial

must be examined with acuity and thoroughly.

5. In view of the above and for the reasons stated above, the present

appeal succeeds. The impugned judgment and order passed by the

High Court dated 30.07.2009 passed in OJC No.4048 of 1994 is hereby

quashed and set aside. Petition is remanded to the Division Bench of

the High Court to consider the writ petition afresh. The Division Bench of

the High Court to consider the case on behalf of the State that the

possession of the surplus land was already taken over by the Tehsildar

on 25.04.1988. In case it is held that the respondents are not entitled to

the benefit of the Repeal Act, the High Court would then consider

submissions on behalf of the State on maintainability of the subsequent

writ petition.

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The High Court is also to consider submissions on behalf of the

State on the maintainability of the subsequent writ petition, as the earlier

writ petition being OJC No.2550 of 1987 was dismissed for non-

prosecution in which also the order passed by the Competent Authority

dated 01.03.1984 and the order passed by the Board of Revenue dated

05.05.1987 were under challenge, which were also the subject matter of

the subsequent writ petition being OJC No.4048 of 1994. The High

Court is also to consider the observations made by the High court in the

order passed in restoration application being M.J.C. No.10 of 1994 filed

for restoring the OJC No.2550 of 1987 by which the High Court

dismissed the restoration application with observation that the original

writ petitioner may file a fresh petition, if permissible. Therefore, the

Division Bench of the High Court has also to interpret and consider the

expression “if permissible”.

On remand, we request the High Court to finally decide and

dispose of the writ petition being OJC No.4048 of 1994 as ordered to be

restored to the file of the High Court and we request the High Court to

decide and dispose of the writ petition expeditiously preferably within a

period of six months from the date of receipt of the order. It is made

clear and observed that all the contentions which may be available to the

respective parties are kept open, to be dealt with and considered by the

Division Bench of the High Court in accordance with law. It is also

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observed that the High Court shall decide all issues including issues,

which are observed hereinabove.

Present appeal is allowed accordingly with costs, which is

quantified at Rs.50,000/- to be deposited by the respondents with the

National Legal Services Authority within a period of four weeks from

today. Pending applications, if any, also stand disposed of.

………………………………….J. [M.R. SHAH]

NEW DELHI; ………………………………….J.
NOVEMBER 23, 2021. [SANJIV KHANNA]

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