Case: U.A.BASHEER Thr. G.P.A. Holder Vs. THE STATE OF KARNATAKA &amp; ANR.

we concur with the findings of the Division Bench. 14. We have also given due consideration to the provisions of Section 8 and Section 9 of the Principal Act, and in our opinion, the aforementioned Sections make it incumbent on the Competent Authority to issue notice to or provide an opportunity to be heard only to the person concerned, i.e., the person who has filed the statement under Section 6 of the Principal Act. The claims of all other persons interested in the vacant land are to be considered through issuing a Gazetted notification to that effect as per Section 10(1) of the Principal Act. The Competent Authority had duly issued such notification on 27.10.1995. 15. Now, coming to the question of possession, it is the Appellants contention that, subsequent to the declaration, he acquired the suit property from Smt. Leela Sapalyathi, by sale agreement dated 26.03.1994, and continues to be in possession of it. That Smt. Leela Sapalyathi was competent to sell the suit property, as it was a portion of the 1,983 sq. mts. of the joint family property she acquired by virtue of the partition deed dated 9.01.1984. We find that this argument is relevant in light of the passage of the Repeal Act, with effect from 8.07.1999. Section 4 of the Repeal Act provides as follows: 4. 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. Section 3(1)(a) of the Repeal Act, which provides for a savings clause, throws light on this, by stating that the repeal shall not affect the vesting of any vacant land in the State Government by the Principal Act, the possession of which has been taken over by the concerned State Government. This is further qualified in Section 3(2) which states that vacant land vested in the State Government by the Principal Act, the possession for which has not been taken over, shall be restored only once any compensation paid to the land-holder has been returned. 16. It is clear from the aforementioned legislative provisions that the question of current possession of the suit property is absolutely material to a full adjudication of the controversy before us. This is because, if the Appellant does enjoy possession, as claimed by him, any proceedings for any excess land under the Principal Act are liable to abate, as per Section 3 and Section 4 of the Repeal Act, and the Appellant would be entitled to ownership and possession over the suit property. However, neither the partition deed dated 9.01.1984 that is alleged to have conferred title on Smt. Leela Sapalyathi, nor the sale deed dated 26.03.1994 that purportedly passed on the title to the Appellant, have been produced before this Court. There is, thus, nothing on record to establish Appellants purchase of, possession of, or interest in the suit property. 17. Whereas the Appellant maintains that he has locus standi to pray for abatement of the proceedings which are the subject matter of this appeal, being in possession of the suit property; the Competent Authoritys order dated 16.10.1996 declaring the award of compensation for the excess land, states that the Competent Authority had taken over possession of the suit property with effect from 12.07.1996, i.e., before the passage of the Repeal Act. In our opinion, there is nothing on record, that conclusively establishes possession of the suit property either by the Competent Authority or the Appellant herein. Given the conflicting averments made by the parties, this is a pure question of fact. 18. In this regard, the Division Bench in the impugned order has observed the following: 5. It is contended that the possession of the land is not taken by the Government in spite of the said order and the appellant continues to be in possession. It is clear from the repealed Act, if the possession has not been taken after the proceedings initiated under the Act, the order is ceased to have any effect and the person in possession is continued to be the owner. A perusal of the order discloses that 5 Sy. Nos. were involved in the declaration, from the order it is not possible to make out in which survey number the excess land falls. If there is no indication of the said excess land falling within any particular survey number and if the authorities have proceeded to take possession, it would not be in consonance with the order. If really possession has not yet been taken under the repealed Act, the petitioner is entitled to continue in possession of the land. All these matter cannot be the subject matter of the writ petition filed challenging the order under Section 10 filed by the declarant. Notwithstanding the dismissal of the writ appeal or writ petition, it is open to the appellant/petitioner to work out his remedy in accordance with law... (emphasis supplied) 19. We find ourselves unable to agree with the Division Bench on this aspect of the matter, and thus set aside the impugned judgment. It was incumbent on the Division Bench to enquire into and settle the questions of fact arising from the present controversy, such as whether the Appellants claim over the suit property was valid, whether he was in actual physical possession of the suit property, and resultantly, whether he had the locus standi to pray for abatement of the proceedings under the Repeal Act. This would have settled finally the question of abatement of the proceedings, and prevented the inefficient proliferation of further litigation between the parties. IV. Conclusions and Directions

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]10. Having undertaken a thorough perusal of the documents and submissions on record, we find ourselves unable to completely affirm the impugned judgment dated 26.03.2009 of the Division Bench. Before proceeding to lay down our conclusions, it may be useful to first refer to the findings of the learned Single Judge and the learned Division Bench.13. At this juncture, it is pertinent to refer to Section 6 of the Principal Act, which requires that a statement be filed before the Competent Authority by every person holding vacant land in excess of the ceiling limit at the commencement of the Act… (emphasis supplied). Thus, the determination of excess land is to be made considering the status of the land at the time of commencement of the Principal Act, and not at the time of filing of the declaration. In our considered opinion, since it is an admitted fact that the partition, if any, was only effected after the Principal Acts commencement, the Division Bench was correct in holding that the partition deed dated 9.01.1984 would not affect the validity of the Competent Authoritys determination of excess land owned by the joint family at the time of commencement of the Act. Hence, to this limited extent, we concur with the findings of the Division Bench.14. We have also given due consideration to the provisions of Section 8 and Section 9 of the Principal Act, and in our opinion, the aforementioned Sections make it incumbent on the Competent Authority to issue notice to or provide an opportunity to be heard only to the person concerned, i.e., the person who has filed the statement under Section 6 of the Principal Act. The claims of all other persons interested in the vacant land are to be considered through issuing a Gazetted notification to that effect as per Section 10(1) of the Principal Act. The Competent Authority had duly issued such notification on 27.10.1995.We find that this argument is relevant in light of the passage of the Repeal Act, with effect from 8.07.1999. Section 4 of the Repeal Act provides as follows:4. 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.Section 3(1)(a) of the Repeal Act, which provides for a savings clause, throws light on this, by stating that the repeal shall not affect the vesting of any vacant land in the State Government by the Principal Act, the possession of which has been taken over by the concerned State Government. This is further qualified in Section 3(2) which states that vacant land vested in the State Government by the Principal Act, the possession for which has not been taken over, shall be restored only once any compensation paid to the land-holder has been returned.16. It is clear from the aforementioned legislative provisions that the question of current possession of the suit property is absolutely material to a full adjudication of the controversy before us. This is because, if the Appellant does enjoy possession, as claimed by him, any proceedings for any excess land under the Principal Act are liable to abate, as per Section 3 and Section 4 of the Repeal Act, and the Appellant would be entitled to ownership and possession over the suit property. However, neither the partition deed dated 9.01.1984 that is alleged to have conferred title on Smt. Leela Sapalyathi, nor the sale deed dated 26.03.1994 that purportedly passed on the title to the Appellant, have been produced before this Court. There is, thus, nothing on record to establish Appellants purchase of, possession of, or interest in the suit property.17. Whereas the Appellant maintains that he has locus standi to pray for abatement of the proceedings which are the subject matter of this appeal, being in possession of the suit property; the Competent Authoritys order dated 16.10.1996 declaring the award of compensation for the excess land, states that the Competent Authority had taken over possession of the suit property with effect from 12.07.1996, i.e., before the passage of the Repeal Act. In our opinion, there is nothing on record, that conclusively establishes possession of the suit property either by the Competent Authority or the Appellant herein. Given the conflicting averments made by the parties, this is a pure question of fact.19. We find ourselves unable to agree with the Division Bench on this aspect of the matter, and thus set aside the impugned judgment. It was incumbent on the Division Bench to enquire into and settle the questions of fact arising from the present controversy, such as whether the Appellants claim over the suit property was valid, whether he was in actual physical possession of the suit property, and resultantly, whether he had the locus standi to pray for abatement of the proceedings under the Repeal Act. This would have settled finally the question of abatement of the proceedings, and prevented the inefficient proliferation of further litigation between the parties.