WA 202/2007 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY HON’BLE MR. JUSTICE H. BARUAH The unsuccessful writ petitioners in W.P(c) No. 2519 of 2004 are before us by wa y of appeal whereby and whereunder they have challenged the legality and correct ness of the judgment and order dated 13-04-2007 passed by the Hon’ble Single Jud ge of this court in the writ petition as indicated above. 2. The appellants as writ petitioners in W.P(C) No. 2519 of 2004 on facts prayed for two reliefs primarily restoration of possession of land measur ing 1 bigha 4 khatas 16 lechas following adoption of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 by the State of Assam and interference with the al lotment of 4 kathas of land out of the area indicated above to the respondent No . 6, the Guwahati Municipal Development Authority (for short GMDA) by order date d 27-11-2003. 3. The learned Single Judge having gone into the facts and the mate rials before him refused to provide relief(s) as indicated above and dismissed t he writ petition by the judgment and order dated 13-4-2007 impugned in this appe al. 4. The Parliament with an object to provide for the imposition of a ceiling on vacant land in urban agglomerations, for the acquisition of such lan d in excess of the ceiling limit, to regulate the construction of the buildings on such land and for the matters connected therewith, with a view to preventing the concentration of urban land in the hands of a few persons and speculation an d profiteering therein and with a view to bringing about an equitable distributi on of the land in urban agglomerations to subserve the common good, in exercise of power under Clause (1) of Article 252 of the Constitution of India enacted th e Urban Land (Ceiling and Regulation) Act, 1976, hereinafter called as the Act, 1976. The State of Assam with the intended object also adopted the Act, 1976 und er Clause 2 of Article 252 of the Constitution in the year 1976 by a resolution in the Assam Legislative Assembly. On adoption of the Act, 1976, the Government of Assam started acquisition of the vacant land in excess of ceiling limit from the owners, the predecessor-in-interest of the appellants was one of them. The f acts set out in the writ petition necessary for the purpose of disposal of this appeal may be provided as under: The appellants are the legal heirs of Late Bhabadeb Sarma, who d ied on 3-10-1997. Appellants father Late Bhabadeb Sarma was the owner of plot of land measuring 73.26 Are (5 Bs 2Ks 7Ls) covered by K.P. Patta No. 493(old)/594( new) in Dag No. 1008 (old) of Sahar Ulubari, 2nd part under Mouza Ulubari, Guwa hati. During his life time Late Bhabadeb Sarma sold most of the land retaining o wnership and possession of 1 bigha 4 khata 16 lachas. On adoption of the Act, 19 76 by the State of Assam, Late Bhabadeb Sarma submitted return under the provisi ons of Section 7 of the Act, 1976. A draft statement under Section 8(3) of the A ct, 1976 was prepared and served on Late Bhabadeb Sarma on 18-05-1982. On due co nsideration of the objections filed against the said draft statement by Late Bha badeb Sarma on 3-9-82, the competent authority, under the Act, 1976, prepared an d published the final statement under Section 9 of the Act. In the draft as well as final statement prepared under the provision of the Act as indicated above, a total area of 7981.48 Sq. mtrs. of land was identified as vacant land required to be surrendered/delivered possession by the owner. On 16-05-1984 a notificat ion was published in the official gazette under Section 10(1) of the Act, 1976 i ndicating particulars of the vacant land in excess of the ceiling limit and call ing persons interested to file their claims in the said vacant land. In the sche dule of the notification dated 16-5-1984, the total area of the land has been sh own as 7981.18 Sq. mtrs. Subsequently a notification dated 1-1-1987 was publishe d in the official gazette under Section 10(3) of the Act. Appellants further con tended that Late Bhabadeb Sarma, the predecessor-in-interest continued to pay th e land revenue in respect of the aforesaid land up to the year 1991 whereafter s uch land revenue was refused to be accepted by the concerned authority. The name of Late Bhabadeb Sarma was deleted as recorded pattader in respect of Patta No. 594 and such deletion was made on the basis of the order passed in the land cei ling proceeding in respect of the land owned by Late Bhabadeb Sarma. 5. At this stage, it would be pertinent to refer to Section 4 of th e Act, 1976 whereunder ceiling limit is provided. In Clause (a) (b) (c) & (d) sp ecific ceiling limit in respect of urban agglomeration has been indicated agains t each category in Schedule-I. According to the appellants Guwahati falls within the category of ’D’ of the schedule-I where ceiling limit is provided as 2000 Sq. Mtrs. that means an owner of land in an urban agglomeration falling within c ategory-D specified in schedule-I can only retain 2000 Sq. mtrs. of vacant land, the excess thereto are liable to be acquired under the provisions of the Act, 1 976. Even after publication of the notification in the official gazette under Se ction 10(3) of the Act, Late Bhabadeb Sarma continued to remain in possession of the land declared as ceiling surplus until his death on 03-09-1997 and after hi m the appellants herein. It is also the pleaded case of the appellants that afte r the death of their father they being in the continued possession of the land i nducted one Sanatan Baishya as caretaker. The appellants being in possession of the land (ceiling surplus) obtained electricity connection in respect of the pre mises standing thereon and also installed a public call office after obtaining permission from the postal department. They also obtained permission from Guwaha ti Municipal Corporation Authorities for running a restaurant/tea stall in said premises by Sanatan Baishya. The electricity connection to the premises on the land, the installation of P.C.O and permission to run a restaurant in the premis es by Sanatan Baishya, according to the appellants give indication of their poss ession in the land even after finalization of the ceiling proceeding. The Act, 1 976 was repealed by the Parliament by the Repealing Act of 1999 with effect from 22-03-1999. The Repealing Act was adopted by the State of Assam on 06-08-2003 b y a resolution under Clause-2 of Article 252 of the Constitution in the Assam Le gislative Assembly and the gazette notification in this regard was published on 5-12-2003. It is the case of the appellant that the Repealing Act, 1999 did not affect the vesting of any vacant land under Section 10(3) of the Principal Act i f the possession of such land had been taken over by the State or any other pers on duly authorized by the State Government. Under Section 3(2) of the Repealing Act, 1999 though any land may have vested in the State Government under Section 10(3) of the Act, if the possession of such land had not been taken over by the State or any persons duly authorized by the State Government such land is to be restored to the owner subject to return of compensation that may have been recei ved by such owner. Appellants contended in categorical terms that possession of 1 B 4Ks 16Ls of land out of the total land covered by the land ceiling proceedin g continued to remain with their predecessor-in-interest and after his death wit h the petitioners notwithstanding the finalization of the ceiling proceeding. Ap pellants also contended that under Section 10(5) of the Act, 1976 a person in po ssession of the ceiling surplus land is entitled to receive a notice to deliver or surrender possession to the State and in the event of such possession not del ivered, recourse is available under Section 10(6) of the Act and with the aid of the provision possession can be taken over. At no point of time neither the pre decessor-in-interest Late Bhabadeb Sarma nor the appellants after his death nor the caretaker of the land (1B 4Ks 16Ls) did receive any notice under Section 10( 5) of the Act directing to handover rather delivered or surrender the vacant pos session of the land in question. This being the position, it is contended by the appellants that they continued in possession and remained there at till the dat e of their eviction on 25-12-2003 taking recourse to Rule 18(2) of the Rules und er Assam Land and Revenue Regulation and by virtue of the Repealing Act 1999 the y are entitled to get back the ownership of the land in questions. Further the a ppellants also contended that no compensation for the land under the provisions of the Act had been paid by the State either to their predecessor Late Bhabadeb Sarma or to them. 6. Allotment of 4 kathas of land out of land measuring 1B 4ks 10 Ls under their alleged possession was allotted in favour of the respondent No. 6 b y order dated 27-11-2003, such allotment in absence of notice under Section 10(5 ) of the Act is also challenged together with the eviction proceeding initiated by eviction notice issued under Rule 18(2) of the settlement rules. 7. The case of the appellants has been denied and disputed by the r espondents herein by filing their affidavits. All the respondents appear to have taken almost similar objections in their counter affidavit. The respondents hav e denied and disputed the possession of the surplus land determined by the ceili ng proceeding against Late Bhabadeb Sarma was not acquired by the State. In this connection the respondents have contended that the possession of the land was unilaterally taken over by the revenue authority on 7-12-1991 since the land own er, the predecessor-in-interest of the appellants failed to deliver or surrender possession of the land under the Act. According to the respondents after notifi cation dated 16-5-1984 issued under Section 10(1) of the Act was published in th e official gazette, the predecessor-in-interest of the appellants Late Bhabadeb Sarma had sold some parts of the land on 12-11-1984. After publication of the no tification under Section 10(3) of the Act, the possession of the land was taken over in the manner indicated above and allotment of the part of the land was mad e in favour of certain persons but when the allottees had gone to take possessio n of their respective land so allotted, the persons who had purchased the land f rom Late Bhabadeb Sarma raised a dispute which entailed a writ proceeding regist ered and numbered as Civil Rule No. 2568 of 1992, wherein Late Bhabadeb Sarma, t he predecessor-in-interest of the appellants was arrayed as proforma respondent. The aforesaid civil revision petition was disposed by this court on 21-5-2002 holding that the transfers made by Late Bhabadeb Sarma after publication of noti fication dated 16-05-1984 under Section 10(1) of the Act are void and contrary o f the provisions of the Act. This Court further held that as the land had alread y vested in the State upon publication of the notification dated 1-1-1987 under Section 10(3) of the Act, the purchasers cannot be held to have acquired any rig ht whatsoever in the lands. This court thus holding the allotments made to the a llottees from the ceiling surplus land in question dismissed the civil revision petition. The respondents also by their counter brought on record an order dated 8-8-2003 of the Apex Court dismissing the Special Leave Petition against the or der dated 21-05-2002 affirmed by a division bench of this court in writ appeal N o. 419 of 2002 by order dated 20-12-2002. It was also contended in the counters by the respondents that at no point of time in course of the proceeding in Civil Rule No. 2568 of 1992, the question of possession was raised by the predecessor -in-interest of the appellants, in absence of such plea/contention this court by order dated 21-5-2002 arrived at a categorical finding that after publication o f the notification under Section 10(1) of the Act, the predecessor-in-interest o f the appellants had not filed any claim in the land in question. The respondent s, therefore, claimed that the issues now sought to be raised has been settled b y this court vide judgment and order dated 21-05-2002. The land measuring 1B 4Ks 16Ls being a part of the ceiling surplus land, when the judgment and order date d 21-5-2002 goes in favour of the allottees such alleged possession of the appel lants cannot subsist in law, in this circumstances the respondents contended tha t the allotment of the land measuring 4 kathas to respondent No. 6 for building its office complex though made belatedly will not affect the validity of the sam e. It is also claimed by the respondents that claimed possession of their lands through their caretaker, Sanatan Baishya being absolutely unauthorized, the appe llants cannot reap any fruit from such possession. 8. The averments of the respondents made in their respective counte r affidavit have been confronted by the appellants by filing reply wherein it is contended that the issues involved in the Civil Rule No. 2568 of 1992 are quite distinct and different from the issues involved in this writ petition and the w rit appeal as well. Civil Rule No. 2568 of 1992 was filed by the purchasers of t he land, purchased from Late Bhabadeb Sarma, the predecessor-in-interest of the appellants challenging the allotment made to the respondents therein and therefo re, the decision of the Civil Rule would not however affect or prejudice the iss ues involved in the writ petitions as well as appeal. It is contended in the rep ly affidavit that even after publication of notification under Section 10(3) of the Act Late Bhabadeb Sarma, the father of the appellants and after his death th e appellants themselves continued to remain in possession at lest in the land me asuring 1B 4Ks 16Ls, a parcel of the ceiling excess acquired vide notification u nder Section 10(1) of the Act. Unless the possession of the land (ceiling surplu s) is taken over under the provisions of Sections 10(5) of the Act by issuing a notice directing the owner to surrender or deliver the possession of the land, the possession of the land can never be with the Government. If after issue of n otice under Section 10(5) of the Act, the owner refuses to surrender or deliver possession of the land in question, the provisions of Section 10(6) of the Act w ould come into play and the Government can act accordingly else not. When no not ice under Section 10(5) of the Act was issued either to Late Bhabadeb Sarma and on his death to the appellants directing him or them to surrender or deliver pos session, the possession of the land remained with the owner and for that by ope ration of the provisions of Section 3(2) despite vesting of the land in the Stat e Government under Sub-Section 3 of Section 10 of the Principal Act, the land re quires restoration to the person concerned after refund of the amount if paid by the State Government in the meantime. It is further contended, the land deemed to have been vested in the State Government under Sub Section 3 of Section 10 of the Principal Act would not operate as an estoppel in the restoration of the la nd to the person concerned if possession of the land has not taken over by the S tate Government under Section 10(5) of the Act. Appellants contended in their re ply affidavit that the alleged unilateral taking over possession would be invali d for non-compliance of the provisions of Section 10(5) of the Act. They have al so contended that such unilateral possession was also not taken over by any pers on duly authorized by the State Government. When any vacant land is vested in th e Government under Section 10(3) of the Act, the competent authority is required to issue a notice in writing to the person concerned to surrender or deliver po ssession of the vacant land to the State Government or to any person authorized by the State Government within 30 days of the service of notice in other words t he owner of the vacant land vested in the State Government is required to delive r or surrender possession of the land within 30 days of the service of notice. T his provision being not resorted to by the State Government or its competent aut hority, the owner of the vacant land would be entitled to restoration of possess ion of the land subject to refund of the amount if already paid. 9. If the owner even after a receipt of the notice failed to comply with an order made under Sub-Section 5 of Section 10 of the Act, the authority may take possession of the vacant land by use of force as may be necessary. This provision is provided under Sub-Section 6 of Section 10 of the Act. The Appella nts therefore, for non-compliance of this mandatory provision of Section 10(5) o f the Act contended that unilateral possession of the respondents in respect of the vacant land would be illegal and inoperative in law. Subsequent eviction of the appellants from the land in question by resorting to eviction proceeding as provided under Rule 18(2) of the Rules under Assam Land and Revenue Regulation would not come in aid rather rescue of the respondents. In the facts situation u nder the Repealing Act, the appellants are entitled to restoration of the posses sion of the vacant land measuring 1B 4Ks 16Ls. 10. The respondents before the learned Single Judge raised an issue of maintainability of the writ petition in view of the decision in Civil Rule N o. 2568 of 1992 which attained finality after the passing of the order dated 8-8 -2003 by the Apex Court in SLP (civil) No. 5059 of 2003. It was contended befor e the learned Single Judge that after publication of the notification in the off icial gazette under Section 10(1) of the Act on 16-5-1984 in respect of the ceil ing surplus land owned by Late Bhabadeb Sarma, he in the year 1984 executed sale deeds transferring different areas of the ceiling surplus land to six different persons and after publication of notice under Section 10(3) of the Act the Stat e Government after taking unilateral possession of the land on 7-12-1991 allotte d some parcels of land to different allottees namely respondent No. 4 to 9 and o n account of such allotment the purchasers being aggrieved brought this Civil Ru le No. 2568 of 1992 which attained finality after the order passed by the Apex C ourt on 8-8-2003. It was contended that by virtue of notification under Section 10(1) of the Act the State Government acquired land measuring 7981.48 Sq. mtrs. being the ceiling surplus land which subsequently vested in the State Government absolutely by dint of notification under Section10(3) of the Act. It was also c ontended that the sale deeds executed by Late Bhabadeb Sarma in favour of six pe rsons in the year 1984 after acquisition of the land by the State Government, t herefore, such sale is void and inoperative. When by notification under Section 10(1) of the Act, the vacant land (ceiling surplus) had been acquired and vested per notification under Section 10(3) of the Act in the State Government absolut ely, possession in respect of a part thereof by Late Bhabadeb Sarma and after hi s death by the appellants cannot sustain in view of judgment of this court in Ci vil Rule 2568 of 1992 and affirmed by division bench of this court and ultimatel y by the Apex Court. Therefore, allotment of the land to the allottees by the Go vernment was proper and legal. It was also contended that vesting of the ceiling surplus land under the provision of section 10(3) of the Act was in respect of the entire ceiling surplus land owned by Late Bhabadeb Sarma. The respondents on this ground contended before the leaned Single Judge that the writ petition is not maintainable. But the learned Single Judge refused to accept their submissio n on the ground that question of taking over possession in order to determine th e rights of the appellants under the Repealing Act, 1999 in view of the contenti on raised by the appellants in particular will be open for consideration of the Court and such question should not be understood as forclosed by the decision in Civil Rule 2568 of 1992. We, therefore, do not find any ground to re-open the i ssue of maintainability since the learned Single Judge set the issue in rest. 11. There is no dispute in regard to acquisition of the ceiling surp lus land owned by Late Bhabadeb Sarma, the predecessor-in-interest of the appell ants and vesting of the same in the Government by notification under Section 10( 3) of the Act. There is also no dispute regarding possession in respect of the l and measuring 1B 4Ks 16Ls even after publication of notification under Section 10(3) of the Act, such possession in respect of the land with the appellants is not only evident from the eviction proceeding under Rule 18(2) of the Rules unde r Assam Land and Revenue Regulation but also from the fact of providing, the ele ctricity connection to the premises situated in the land, establishment of a PCO with the approval of the postal department and permission of the Guwahati Munic ipal Corporation for running a restoration/tea stall thereat. Mr. A.K. Bhattach arjee, learned Sr. counsel, therefore, contended that possession in respect of l and measuring 1B 4Ks 16Ls which is a parcel of the acquired land under the Urban Land Ceiling Case No. 343 of 1976 was with the appellants till their eviction t herefrom on 25-12-2003. This piece of submission though not refuted by the couns el of the respondents, it was vehemently argued that such possession of the appe llants of the land was illegal in view of taking over of the possession of the e ntire ceiling surplus land unilaterally on 7-12-1991 by one of the officers of t he Revenue Department of the State Government confirmed by the Circle Officer vi de letter dated 20-4-1992 addressed to Deputy Commissioner (Land Reform Branch). 12. Countering the above submissions by the counsel of the responden ts, Mr. A. K. Bhattacharjee, learned Sr. counsel for the appellants submitted be fore us that such unilateral possession of the land being taken over by an unaut horized person would be invalid in view of non compliance of the provisions of S ection 10(5) of the Act. It was argued by Mr. Bhattacharjee that the unilateral taking over of possession would be possible only when the land owner in spite of issuance of notice under Section 10(5) of the Act failed to surrender or delive r possession of the land to the State Government or to any person duly authorize d in this behalf within 30 days of the service of notice. It was also argued tha t there is no evidence forthcoming that the S.K whose signature appears in Annex ure-IV was a person duly authorized by the State Government to take possession o f the land (ceiling surplus). It was also argued by him that evidence is wanting in respect of issue of notice to the land owner under Section 10(5) of the Act.