U.A. BASHEER THR. G.P.A. HOLDER versus STATE OF KARNATAKA & ANR.
[2021] 1 S.C.R. 893, Supreme Court of India, 2021
Outcome: Disposed off
Segment: Ratio
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   [2021] 1 S.C.R. 893
893
U.A. BASHEER THR. G.P.A. HOLDER
v.
STATE OF KARNATAKA & ANR.
(Civil Appeal No.3032 of 2010)
FEBRUARY 17, 2021
[MOHAN M. SHANTANAGOUDAR
AND VINEET SARAN, JJ.]
Urban Land (Ceiling and Regulation) Act, 1976 – ss.6(1),
8(1),(4), 10(1), (3),(6), 42 – Urban Land (Ceiling and Regulation)
Repeal Act, 1999 – ss.3(1)(a), (2), 4, 5 – Joint family property of
two sisters under various Survey Nos. including Survey No.53/3A –
Partition of the property alleged in 1984 between their children,
one of whom filed statement u/s.6(1) declaring the particulars of
the joint family property – Competent Authority issued a draft
statement to the declarant to surrender excess vacant land including
land falling within Survey No.53/3A – Objection filed – Eventually,
land in inter alia Survey No.53/3A was declared as excess land –
Appellant claims to have purchased a portion of Survey No.53/3A
comprising a house (suit property) in 1994 from the daughter of
one of the sisters who had allegedly acquired it by virtue of the
aforesaid partition – Appellant filed petition under the Repeal Act,
1999 for his name to be restored in the records instead of the
government’s – Petition rejected by Competent Authority –
Appellant’s writ petition and appeal dismissed in High Court – Held:
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 – Since,
admittedly the
partition, if any, was only effected after the Principal Act’s
commencement, the Division Bench correctly held that the partition
deed of 1984 would not affect the validity of the Competent
Authority’s determination of excess land owned by the joint family
at the time of commencement of the Act – To this limited extent,
findings of the Division Bench concurred with – However, there is
nothing on record to conclusively establish possession of the suit
property either by the Competent Authority or the appellant –
Conflicting averments made by parties – It was incumbent on the
Division Bench to enquire into and settle the questions of fact –
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Impugned judgment set aside – Matter remitted to the Division Bench
to consider the case afresh.
Urban Land (Ceiling and Regulation) Act, 1976 – ss. 6, 8, 9,
10 – Held: ss.8 and 9 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 u/
s.6 – Claims of all other persons interested in the vacant land are to
be considered through issuing a Gazetted notification as per s.10(1)
– Urban Land (Ceiling and Regulation) Repeal Act, 1999.
Disposing of the appeal, the Court
HELD: 1.1 The Urban Land (Ceiling and Regulation) Act,
1976 (Principal Act) came into force in Karnataka on 17.02.1976.
Section 6 of the Principal Act 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…’. 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.
Since it is an admitted fact that the partition, if any, was only effected
after the Principal Act’s commencement, the Division Bench was
correct in holding that the partition deed dated 9.01.1984 would
not affect the validity of the Competent Authority’s determination
of excess land owned by the joint family at the time of
commencement
of the Act. Hence, to this limited extent,
this Court concurs with the findings of the Division Bench.
[Paras 3, 13][896-H; 901-A-C]
1.2 Section 8 and Section 9 of the Principal Act 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. [Para 14][901-D-E]
1.3 It is the Appellant’s contention that, subsequent to the
declaration, he acquired the suit property from ‘Smt. LS’
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(appellant’s vendor), by sale agreement dated 26.03.1994, and
continues to be in possession of it. That ‘Smt. LS’ 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. This argument is relevant in light of the
passage of the Repeal Act, with effect from 8.07.1999. Section
3(1)(a) of the Repeal Act, which provides for a savings clause
states 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. It is thus clear that the question of current possession
of the suit property is absolutely material to a full adjudication of
the controversy. 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. LS’, 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 Appellant’s purchase of,
possession of, or interest in the suit property. There is nothing
on record, that conclusively establishes possession of the suit
property either by the Competent Authority or the Appellant.
Given the conflicting averments made by the parties, this is a
pure question of fact. [Paras 15-17][901-F-G; 902-B-F, G]
1.4 The impugned judgment is set aside. 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
Appellant’s 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. Since the Single Judge
has already given a definite factual finding as to the question of
U.A. BASHEER THR. G.P.A. HOLDER v. STATE OF
KARNATAKA & ANR.
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the Appellant’s ownership and possession of the suit property, it
is not appropriate to remit the matter to the Single Judge. The
matter is remitted to the Division Bench to consider the case
afresh. [Paras 19-21][903-D-H]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3032
of 2010.
From the Judgment and Order dated 26.03.2009 of the High Court
of Karnataka at Bangalore in Writ Appeal No. 7758 of 2003 (ULC).
Girish Anantha Murthy, Mrs. Vaijayanthi Girish, Shubhranshu
Padhi, Advs. for the appearing parties.
The Judgment of the Court was delivered by
MOHAN M. SHANTANAGOUDAR, J.
This appeal arises out of order and judgment of the Division Bench
of the High Court of Karnataka (hereinafter, ‘High Court’) dated
26.03.2009, dismissing Writ Appeal No. 7758 of 2003 [ULC] filed by the
Appellant herein against the order dated 21.10.2003 passed by the learned
Single Judge of the High Court in W.P. No. 35449 of 2001. 
Factual Background:
2. The facts leading to this appeal are as follows: Five properties/
Survey Nos. (53-3B2, 53-2A, 53-7, 53-3A, 53-9), totally measuring 3
acres and 11 cents, situated in Ullal village, Mangalore Agglomeration
(‘joint family property’), originally belonged to the joint family of two
sisters, namely, Smt. Korapalu Sapalyathi and Smt. Nemu Sapalyathi.
Korapalu Sapalyathi had three children and Smt. Nemu Sapalyathi had
seven children. After the death of the two sisters, the Appellant’s case is
that
their ten children benefited through a registered partition deed dated
9.01.1984. Through the said partition deed, Smt. Leela Sapalyathi,
daughter of Smt. Korapalu Sapalyathi, allegedly came to hold a share of
1983 sq. mts. of land, including land to the extent of 30 cents falling
under Survey No. 53/3A. Likewise, the other nine children of Smt.
Korapalu Sapalyathi and Smt. Nemu Sapalyathi are also said to have
got their share of the joint family property through the said partition
deed.  
3. The Urban Land (Ceiling and Regulation) Act, 1976
(hereinafter, ‘Principal Act’) came into force in Karnataka on 17.02.1976.
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Padmanabha, one of the seven children of Smt. Nemu Sapalyathi, filed
a statement under Section 6(1) of the Principal Act on 15.06.1984
declaring the particulars of the joint family property. Thereafter, the
Deputy Commissioner and Competent Authority, Mangalore Urban
Agglomeration (Respondent No. 2 herein; hereinafter, ‘Competent
Authority’) issued a draft statement under Section 8(1) of the Principal
Act to the declarant, i.e., Padmanabha to surrender excess vacant
land of 9,489.48 sq. mts, which included land falling within Survey
No. 53/3A. In response to the said notice, Padmanabha filed his objections
on 1.07.1985 stating that the property belonged to his late mother and
her sister and that after their death, the joint family property had been
divided through the aforementioned partition deed. He further stated
that the individual share of each of the children subsequent to the partition
was within the ceiling limit prescribed under the Principal Act. 
4. On 5.12.1994, the Competent Authority passed an order holding
that the partition deed having been effected on 9.01.1984, i.e., subsequent
to the commencement of the Principal Act, the same could not be
considered as per Section 42 of the Principal Act. Thus, the Competent
Authority directed that an extent of 5,210.10 sq. mts. of land in Ullal
village held by the declarant be treated as excess vacant land to be
surrendered. Subsequently, on 16.10.1996, the Competent Authority
passed an award fixing
compensation for the said excess land at
Rs.15,630/-. In the said award, it was stated that Gazette notification
was made in respect of acquisition of the land on 27.10.1995 and
22.1.1996 as per the provisions of Section 10(1) and 10(3) of the Principal
Act. 
5. It is the Appellant’s case that he had executed a sale deed on
26.03.1994 with Smt. Leela Sapalyathi whereby he purchased a portion
of Survey No. 53/3A measuring 14 cents comprising an old house D.
No. 20-6 (hereinafter, ‘suit property’). The Appellant claims that he took
possession of the suit property on the date of purchase and has been in
possession till date. The Appellant further contends that after the said
purchase, the suit property was mutated in his name. In this regard, he
has produced copies of the Record of Rights, Tenancy and Crops (‘RTC’)
for the years 1993-1994 and 1994-1995. The Appellant states that he
was unaware of the Competent Authority’s orders dated 5.12.1994 and
16.10.1996 mentioned supra. In April 2001, the Appellant wished to
undertake renovation of the house on the suit property and hence,
U.A. BASHEER THR. G.P.A. HOLDER v. STATE OF
KARNATAKA & ANR. [MOHAN M. SHANTANAGOUDAR, J.]
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approached the village accountant for the latest copy of the RTC. It was
at this stage that he noticed that the Government’s name had been entered
in the RTC. Upon inquiry, the Appellant was apprised of the proceedings
under the Principal Act and the subsequent orders passed by the
Competent Authority. 
6. On 9.05.2001, the Appellant filed a petition under Sections 4 &
5 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999
(hereinafter, ‘Repeal Act’) praying for his name to be restored in the
RTC, inter alia on the grounds that the Competent Authority had not
issued notice to the Appellant regarding taking of possession of the suit
property. That, in any case, the Competent Authority had not taken
physical possession of the suit property as on the date of commencement
of the Repeal Act. Hence, as per the provisions of the Repeal Act, the
proceedings would abate and the Competent Authority could not take
further action under the Principal Act. The said petition was rejected by
the Competent Authority vide order dated 12.06.2001. 
7. Thereafter, the Appellant approached the High Court by way
of Writ Petition No. 35449/2001 which was dismissed vide order dated
21.10.2003. The Appellant’s Writ Appeal No. 7758/2003 [ULC] before
the Division Bench of the High Court was also dismissed vide impugned
order dated 26.03.2009 with certain observations. Aggrieved, the
Appellant has come before this Court.
Appellant’s
Submissions: 
8. We have heard the learned counsel for the Appellant at length.
The Appellant’s main contentions may be summarised as follows:
(i) That vide partition deed dated 9.01.1984, Smt. Leela Sapalyathi
obtained 1983 sq. mts. of land in the joint family property which consisted
of a residential house as well. As per Schedule 1, Category D of the
Principal Act, a person is entitled to hold 2000 sq. mts. of land. In such
case, the Competent Authority erred in concluding that the declarant
Padmanabha holds excess land where in fact Survey No. 53/3A has
fallen to the share of Leela Sapalyathi who is the Appellant’s vendor. In
fact, in light of the partition deed, Padmanbha, has no right to file the
declaration under Section 6(1) of the Principal Act in respect of the suit
property, and therefore, the entire proceedings are vitiated;
(ii) That the order dated 5.12.1994 was passed by the Competent
Authority without issuing notice to the Appellant or his vendor, i.e., Smt.
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Leela Sapalyathi and that the said proceedings under the Principal Act
were carried out behind their backs; 
(iii) That the declaration under Section 6(1) of the Principal Act
had been filed by Padmanabha way back on 15.06.1984 and his objections
were filed on 1.07.1985. However, the Competent Authority passed its
order dated 05.12.1994 after 9 years without issuing notice to any of the
10 members of the joint family;
(iv) That it is not the case of the Respondents that compensation
had been paid. Since neither compensation had been paid nor possession
been taken on the date of coming into force of the Repeal Act, i.e., on
8.07.1999, the orders passed by the Competent Authority under the
Principal Act have abated.
Respondents’ Submissions:
9. The Competent Authority’s contentions may be summarised as
follows:
(i) That an extent of 0.57 acre in Survey No. 53/3A and 0.71¾
acre in Survey No. 53/3B2 of Ullal Village have been declared excess
as per Section 10(3) of the Principal Act on the basis of the declaration
filed by Padmanabha under Section 6(1) of the Principal Act on
15.06.1984. Hence, all transactions made after the said date, i.e., sale of
suit property to the Appellant, without the permission of the Competent
Authority are null and void, as per Section 42 of the Principal Act;
(ii) That after the issuance of notification under Section 10(3) of
the Principal Act, the suit property vests with the Government free from
all encumbrances. Accordingly,
the necessary entries were made in the
Government’s name in the RTC. Hence, the Appellant’s contentions are
baseless and may be overruled;
(iii) That the declarant Padmanabha was given the opportunity to
put forth his objections and the same were considered by the Competent
Authority before passing orders under Section 8(4) of the Principal Act.
The partition deed was affected on 9.01.1984, i.e., subsequent to the
commencement of the Principal Act and the same cannot be considered
as per Section 42 of the Principal Act;
(iv) Since the Appellant had not filed the declaration under Section
6(1) of the Principal Act, the question of issue of notice to him does not
arise;
U.A. BASHEER THR. G.P.A. HOLDER v. STATE OF
KARNATAKA & ANR. [MOHAN M. SHANTANAGOUDAR, J.]
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(v) The Government had taken possession of the suit property on
12.07.1996 as per Section 10(6) of the Principal Act.
(vi) The order dated 5.12.1994 passed by the Competent Authority
is well within jurisdiction. The declaration filed by Padmanabha was
enquired into properly and decided on merit. Proper notices were issued
to the declarant at all stages. The Appellant does not have any right over
the excess land. 
III. This Court’s Analysis
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.
11. The learned Single Judge dismissed the Appellant’s writ petition
on the sole ground that the partition deed dated 9.01.1984, that the
Appellant had heavily relied on in furtherance of his submissions, was
not produced before the Court. The Single Judge observed as follows:
“4. It is relevant to observe here that the petitioner being the object
or before the respondent no.2 did not produce any proof of partition
in respect of the subject property fallen to the share of the vendor
to succeed to execute the sale deed in the month of March, 1994.
He would have done definitely that when he had made out a case
before the respondent no.2. Even
before this Court, the petitioner
had not filed any document as that of the partition deed to show
that the subject property was the subject matter of partition.
Therefore, it appears to me that the petition fails on that score
alone. In view of that, the petition does not merit any consideration.
The writ petition is therefore dismissed as the same is devoid of
merit; I order accordingly.”
12. The Division Bench, on the other hand, while dismissing the
Appellant’s writ appeal, observed that regardless of whether the declarant
Padmanabha and his family members had effected partition after the
Principal Act commenced, the concerned land would still be subject to
the proceedings initiated under the Principal Act. The Division Bench
further observed that the Appellant has not established that he acquired
any interest in the suit property prior to the Principal Act’s commencement
or to the filing of the declaration by Padmanabha, and thus, there was no
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obligation on the Competent Authority to issue notice to the Appellant
and afford him a hearing before passing the order. 
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 Act’s commencement, the Division
Bench was correct in holding that the partition deed dated 9.01.1984
would not affect the validity of the Competent Authority’s 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.
15. Now, coming to the question of possession, it is the Appellant’s
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:
U.A. BASHEER THR. G.P.A. HOLDER v. STATE OF
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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 Appellant’s
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
Authority’s 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:
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“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
Appellant’s 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
20. Since the learned Single Judge has already given a definite
factual finding as to the question of the Appellant’s ownership and
possession of the suit property in his judgment dated 21.10.2003 (supra),
we do not think it appropriate to remit the matter to the learned Single
Judge.
21. Instead, we direct the matter to be remitted to the Division
Bench of the Karnataka High Court to consider the case afresh. All
questions of fact outlined above are to remain open, and the parties are
U.A. BASHEER THR. G.P.A. HOLDER v. STATE OF
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given liberty to place on record additional evidence not made a part of
the proceedings heretofore. Since the other original owners of the joint
family property have accepted the orders of the Competent Authority, in
so far as they have not questioned the said orders, the Division Bench
will confine its findings only with regard to the issue of possession of the
suit property.
22. The appeal stands disposed of accordingly. No order as to
costs.
Divya Pandey
Appeal disposed of.