U.A.Basheer vs The State Of Karnataka on 17 February, 2021


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Supreme Court of India

U.A.Basheer vs The State Of Karnataka on 17 February, 2021

Author: Mohan M. Shantanagoudar

Bench: Mohan M. Shantanagoudar, Vineet Saran

                                                   1


                                                                      REPORTABLE

                                 IN THE SUPREME COURT OF INDIA

                                  CIVIL APPELLATE JURISDICTION

                                  CIVIL APPEAL NO. 3032 OF 2010


           U.A. Basheer Thr. G.P.A. Holder                        …Appellant(s)


                                                   VERSUS


           State of Karnataka & Anr.                              …Respondent(s)



                                        J U D G M E N T

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:

Signature Not Verified

Digitally signed by
GULSHAN KUMAR
ARORA
Date: 2021.02.17
16:13:39 IST
Reason:

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2. The facts leading to this appeal are as follows: Five

properties/Survey Nos. (53­3B2, 53­2A, 53­7, 53­3A, 53­9),

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. 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
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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
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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. 20­6 (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

1993­1994 and 1994­1995. 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, 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,
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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
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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,
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i.e., Smt. 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
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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;

(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
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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
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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

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
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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.
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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:

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
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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 land­holder 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.

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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:

“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
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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
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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 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.

…..……………………………………..J.
(MOHAN M. SHANTANAGOUDAR)
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.…………………………………………J.

(VINEET SARAN)

NEW DELHI,
FEBRUARY 17 , 2021



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