Case: State of Orissa &amp; Ors Vs. Sakhi Bewa (Dead) Through LRs

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 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 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 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 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.

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

Explanation:
1[ds]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, 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, 1999.4.3 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 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 24.07.2002.4.5 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 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 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.