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TMI Blog2013 (3) TMI 596X X X X Extracts X X X X X X X X Extracts X X X X ..... handover possession of the land declared as surplus to duly authorized persons on behalf of the Collector. Legislature is competent to create a legal fiction, for the purpose of assuming existence of a fact which does not really exist. Sub-section (3) of Section 10 contained two deeming provisions such as “deemed to have been acquired” and “deemed to have been vested absolutely”. Let us first examine the legal consequences of a ‘deeming provision’. In interpreting the provision creating a legal fiction, the Court is to ascertain for what purpose the fiction is created and after ascertaining this, the Court is to assume all those facts and consequences which are incidental or inevitable corollaries to the giving effect to the fiction. This Court in Delhi Cloth and General Mills Company Limited [1996 (1) TMI 431 - SUPREME COURT] held that what can be deemed to exist under a legal fiction are facts and not legal consequences which do not flow from the law as it stands. The expression “deemed to have been acquired” used as a deeming fiction under sub-section (3) of Section 10 can only mean acquisition of title or acquisition of interests because till that time the land may be eit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilure to implement the requirement. Effect of non-issue of notice under sub-section (5) or sub-section (6) of Section 11 is that it might result the land holder being dispossessed without notice, therefore, the word ‘may’ has to be read as ‘shall’. Above reasoning is in consistence with the Directions 1983 which has been issued by the State Government in exercise of powers conferred under Section 35 of the Act. Directives make it clear that sub-section (3) takes in only de jure possession and not de facto possession, therefore, if the land owner is not surrendering possession voluntarily under sub-section (3) of Section 10, or surrendering or delivering possession after notice, under Section 10(5) or dispossession by use of force, it cannot be said that the State Government has taken possession of the vacant land. The mere vesting of the land under sub-section (3) of Section 10 would not confer any right on the State Government to have de facto possession of the vacant land unless there has been a voluntary surrender of vacant land before 18.3.1999. State has to establish that there has been a voluntary surrender of vacant land or surrender and delivery of peaceful possession un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have been vested with the Government from 12.6.1982, free from all encumbrances. On 10.6.1999, the competent authority vide its letter dated 10.6.1999 informed the Bandobast Chakbandi Adhikar that the surplus land declared as per the Notification stood vested in the State Government. On 19.6.1999, the prescribed authority issued a notice under Section 10(5) of the Act directing the respondent to hand over possession of the land declared as surplus to a duly authorized person. Aggrieved by the same, the respondent preferred an appeal No.29 of 1999 before the District Judge, Varanasi under Section 33 of the Act, contending that before passing the order under Section 8(4) of the Act, no notice, as contemplated under Section 8(3) of the Act, was served on him. The appeal was allowed and the order dated 29.06.1981 was quashed, vide judgment dated 14.12.1999. 5. Aggrieved by the said order, State of U.P., through the competent authority, preferred Civil Misc. Petition No. 47369 of 2000 before the High Court of Allahabad under Article 226 of the Constitution of India, and the High Court, after elaborately considering the various contentions, took the view that subsection (3) of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation of the notification and the deeming clause and legal fiction provided under Section 10(3) of the Act, the requirement of Section 3(1)(a) of the Repeal Act shall stand satisfied and the land so vested and possessed by the State Government shall remain intact in the ownership and possession of the State Government. Learned senior counsel also submitted that the procedure laid down under U.P. Urban Land Ceiling (Taking of Possession, Payment of Amount and Allied Matters) Directions, 1983 (for short Directions 1983 ) would not apply in view of the plenary character of Section 10(3). 8. Learned counsels appearing for the respondents, on the other hand, fully supported the judgment of the High Court and submitted that on a conjoint reading of Sections 10(3), 10(5), 10(6) and Section 3 of the Repeal Act would show that the expressions deemed to have been acquired or deemed to have vested would not comprehend physical possession under Section 10(3) in view of Sections 10(5) and 10(6) of the Act. Learned counsels urged in such situations, the State has necessarily to follow the procedure laid down under the Directions 1983 issued in exercise of the powers conferred under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing limit.- (1) As soon as may be after the service of the statement under section 9 on the person concerned, the competent authority shall cause a notification giving the particulars of the vacant land held by such person in excess of the ceiling limit and stating that- (i) such vacant land is to be acquired by the concerned State Government; and (ii) the claims of all persons interested in such vacant land may be made by them personally or by their agents giving particulars of the nature of their interests in such land, to be published for the information of the general public in the Official Gazette of the State concerned and in such other manner as may be prescribed. (2) After considering the claims of the persons interested in the vacant land, made to the competent authority in pursuance of the notification published under sub-section (1), the competent authority shall determine the nature and extent of such claims and pass such orders as it deems fit. (3) At any time after the publication of the notification under sub-section (1), the competent authority may, by notification published in the Official Gazette of the State concerned, declare that the excess vacant l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egulation) Act, 1976 was passed when Proclamation of emergency was in operation with a laudable objective in mind. The said Act was passed pursuant to resolution passed by the State Legislature under clause (1) of Article 252. Unfortunately public opinion is nearly unanimous that the Act has failed to achieve what was expected of it. It has on the contrary pushed up land prices to unconscionable levels, practically brought the housing industry to a stop and provided copious opportunities for corruption. There is wide spread clamour for removing this most potent clog on housing. 2. Parliament has no power to repeal or amend the Act unless resolutions are passed by two or more state legislatures as required under clause (2) of Article 252. 3. The Legislature of Haryana and Punjab have passed resolutions empowering Parliament to repel the act in those States. The Act, in the first instance will be repealed in those States and in the Union Territories and subsequently if any State Legislature adopts this Act by resolution, then from the date of its adoption the Act will stand repealed in that State. 4. The proposed repeal, along with some other incentives and simplification of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directed the respondent to handover possession of the land declared as surplus to duly authorized persons on behalf of the Collector. 15. Before examining the impact of the Repeal Act on Act 33 of 1976, particularly, Section 3 of the Repeal Act on sub-section (3) to Section 10 of the Act, let us examine whether possession could be taken following the procedure laid down in sub-section (3) to Section 10 of the Act. Section 6 casts an obligation on every person holding vacant land in excess of ceiling limit to file a statement before the competent authority and after following all the statutory procedures, the competent authority has to pass the order under Section 8(4) on the draft statement. Following that, a final statement has to be issued under Section 9 on the person concerned. Sub-section (1) to Section 10 states that after the service of statement, the competent authority has to issue a notification giving particulars of the land held by such person in excess of the ceiling limit. Notification has to be published for the information of the general public in the Official Gazette, stating that such vacant land is to be acquired and that the claims of all the persons interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intended purpose so as to deem a person in fact lawfully here not to be here at all. The intention of a deeming provision, in laying down a hypothesis is that the hypothesis shall be carried so far as necessary to achieve the legislative purpose but no further. (see also DEG Deutsche Institutions and another v. Kosby (2001) 3 All E.R. 878. 20. Let us test the meaning of the expression deemed to have been acquired and deemed to have been vested absolutely in the above legal settings. The expression acquired and vested are not defined under the Act. Each word, phrase or sentence that we get in a statutory provision, if not defined in the Act, then is to be construed in the light of the general purpose of the Act. As held by this Court in Organo Chemical Industries v. Union of India (1979) 4 SCC 573 that a bare mechanical interpretation of the words and application of a legislative intent devoid of concept of purpose will reduce most of the remedial and beneficial legislation to futility. Reference may also be made to the Judgment of this Court in Directorate of Enforcement v. Deepak Mahajan (1994) 3 SCC 440. Words and phrases, therefore, occurring in the statute are to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , clothe with a particular authority, right of property, 2. To become legally vested; (T.P. Act.) Vesting order: An order under statutory authority whereby property is transferred to and vested, without conveyance in some person or persons; Black s Law Dictionary (Sixth Edition) 1990 at page 1563: Vested: Fixed; accrued; settled; absolute; complete; Having the character or given the rights of absolute ownership; not contingent, not subject to be defeated by a condition precedent. Rights are vested when rights to enjoyment present or prospective has become property of some particular persons or persons as present interest; mere expectancy or future or contingent interest in property founded on anticipated continuance of existing laws does not continue vested right Vaughan v. Nadel; 228 Kan. 469, 618 p. 2d 778, 783. See also Accrue Vest and specific typed of vested interest infra. Webster s Third New International Dictionary, of the English Language unabridged, Volume III S to Z at page 2547 defines the word vest as follow: vest vest To place or give into the possession or discretion of some person or au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous procedures have to be followed for acquisition and vesting. When we look at those words in the above setting and the provisions to follow such as sub-sections (5) and (6) of Section 10, the words acquired and vested have different meaning and content. Under Section 10(3), what is vested is de jure possession not de facto, for more reasons than one because we are testing the expression on a statutory hypothesis and such an hypothesis can be carried only to the extent necessary to achieve the legislative intent. Voluntary Surrender 28. The vesting in sub-section (3) of Section 10, in our view, means vesting of title absolutely and not possession though nothing stands in the way of a person voluntarily surrendering or delivering possession. The court in Maharaj Singh v. State of UP and Others (1977) 1 SCC 155, while interpreting Section 117(1) of U.P. Zamindari Abolition and Land Reform Act, 1950 held that vesting is a word of slippery import and has many meaning and the context controls the text and the purpose and scheme project the particular semantic shade or nuance of meaning. The court in Rajendra Kumar v. Kalyan (dead) by Lrs. (2000) 8 SCC 99 held as foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment by the two deeming provisions under sub-section (3) to Section 10, there is no necessity of using the expression where any land is vested under sub-section (5) to Section 10. Surrendering or transfer of possession under sub-section (3) to Section 10 can be voluntary so that the person may get the compensation as provided under Section 11 of the Act early. Once there is no voluntary surrender or delivery of possession, necessarily the State Government has to issue notice in writing under sub-section (5) to Section 10 to surrender or deliver possession. Subsection (5) of Section 10 visualizes a situation of surrendering and delivering possession, peacefully while subsection (6) of Section 10 contemplates a situation of forceful dispossession. Forceful dispossession 33. The Act provides for forceful dispossession but only when a person refuses or fails to comply with an order under sub-section (5) of Section 10. Sub-section (6) to Section 10 again speaks of possession which says, if any person refuses or fails to comply with the order made under sub-section (5), the competent authority may take possession of the vacant land to be given to the State Government a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tters Directions, 1983) 2. The provisions contained in this direction shall be subjected to the provisions of any directions or rules or orders issued by the Central Government with such directions or rules or orders. 3. They shall come into force with effect from the date of publication in the Gazette. 2. Definitions:- 3. Procedure for taking possession of vacant Land in excess of Ceiling Limit-(1) The Competent Authority will maintain a register in From No.ULC -1 for each case regarding which notification under sub-section (3) of Section 10 of the Act is published in the Gazette. 4. (2) an order in Form No.ULC-II will be sent to each land holder as prescribed under sub-section (5) of Section 109 of the Act and the date of issue and service of the order will be entered in Column 8 of Form No.ULC-1. (3) On possession of the excess vacant land being taken in accordance with the provisions of sub-section (5) or sub-section (6) of Section 10 of the Act, entries will be made in a register in Form ULC-III and also in Column 9 of the Form No.ULC-1. The Competent Authority shall in token of verification of the entries, put his signatures in column 11 of Form No.ULC-1 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e taking over of the possession of the above detailed surplus land and its proper maintenance may, kindly be taken an intimation be given to the undersigned along with copy of certificate to verify. Competent Authority . .. .. 36. Above-mentioned directives make it clear that sub-section (3) takes in only de jure possession and not de facto possession, therefore, if the land owner is not surrendering possession voluntarily under sub-section (3) of Section 10, or surrendering or delivering possession after notice, under Section 10(5) or dispossession by use of force, it cannot be said that the State Government has taken possession of the vacant land. 37. The scope of Act 33 of 1976 came up for consideration before this Court on few occasions, reference may be made to certain judgments, even though there has been no elaborate discussion of the provision of the Act and its impact on the Repeal Act. Reference may be made to Pt. Madan Swaroop Shrotiya Public Charitable Trust v. State of U.P. and Others (2000) 6 SCC 325, Ghasitey Lal Sahu and Another v. Competent Authority, Under the Urban (Ceiling and Regulation Act, 1976), U.P. and Another (2004) 13 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X
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