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SHRIPAL EDUCATION SOCIETY, UJJAIN v. STATE OF MADHYA PRADESH AND OTHERS - WP--2122/2006 [2007] INMPHC 543 (13 September 2007)

WRIT PETITION NO. 2122 OF 2006

..............Petitioner

State of Madhya Pradesh and others .........Respondents

CORAM:- HON'BLE MR. JUSTICE VINEY MITTAL.

PRESENT:- Shri A.M. Mathur , Senior Advocate with

Shri Anand Pathak, Dy. Govt. Advocate, for respondents No. 1 to 4. Shri S.C. Bagadiya, Senior Advocate with Shri D.K. Chhabra, Advocate, for respondents No. 6, 11 to 15.

Viney Mittal,J. The petitioner-society, which is a society registered under the Madhya Pradesh Societies Ragistrikaran Adhiniyam, 1973, and claims to be running certain educational institutions in Ujjain, by merely filing an application on December 1, 2002 for allotment of the land for raising construction of building for an educational institution and by merely depositing the application money of Rs. 30,000/- has been able to prolong the present controversy with regard to declaration of surplus area of the ownership land of respondents No. 5 to 15, for an approximately a period of 5 years. The facts relevant for adjudication of the controversy in question, may be noticed hereinafter. These facts have been assimilated from the pleadings of the parties and also from a report of the competent authority, which has been appended as Annexure R-6/A.

Smt. Anandi Bai, respondent No. 5 (since dead) widow of Chhogalal and her family members, were owners of 1.778 hectares of land at Kasba Ujjain. In view of the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the Act), a draft statement under Section 6 of the Act was filed by the land owners on April 21, 1980. Since it was proposed to declare the land owned by the land owners as surplus under the provisions of the Act, therefore, the said owners filed an application under Section 20 of the Act for exempting their land from being declared as surplus. Vide an order dated April 12, 1982, a final statement was ordered to be issued by the Competent Authority declaring 1.201 hectares of the land of the owners as surplus. Against the order of final statement, the land owners filed an appeal before the Appellate Authority. It was claimed by them that since in the application filed by them under Section 20 of the Act, an order had been passed to keep the surplus area proceedings pending till disposal of the exemption application, therefore, the final statement issued on April 12, 1982, was not justified and in fact was liable to be set-aside. However, it appears from the record that vide an order dated December 16, 1988, the appeal filed by the owners was dismissed and the order issuing final statement was upheld. After appellate order, the Competent Authority ordered issuance of the notification under Section 10(1) of the Act. At this stage, it may also be noticed that even at that point of time, proceedings in the application under Section 20 filed by the land owners were still pending and the interim order passed by the Competent Authority in the said proceedings was also operative. Although, a notification under Section 10 (1) of the Act was ordered to be published but it appears that no individual notice/notices had ever been issued to the land owners requiring them to file any objections. The notification qua final statement under Section 10(1) of the Act was published on October 6, 1989. An order dated January 2, 1990 appears to have been passed by the Competent Authority noticing that no objections had been filed by the land owners. In these circumstances, it was ordered that notification under Section 10(3) of the Act be published. The said notification was published on March 9, 1990. Thereafter an order dated March 23, 1990 was passed by the Competent Authority directing issuance of the notices under Section 10(5) of the Act. The aforesaid notices appear to have been issued on March 24, 1990 and appear to have been received on March 31, 1990. Objections against the said notification were filed by the land owners on April 16, 1990. In the said objections, the land owners maintained that since the proceedings under Section 20 of the Act, for exempting the land, were still pending and a stay order was operating in the said proceedings, therefore, proceedings for declaration of surplus area and issuance of the notices under Section 10(5) of the Act, were wholly contrary to law and unjustified. The land owners also claimed that no notices had been received by them under Section 10(1) and 10(3) of the Act and therefore, all proceedings were vitiated. The aforesaid objections filed by the land owners, appear to have been dismissed by the Competent Authority on September 13, 1990. An appeal was filed by the land owners against the order dated September 13, 1990, which appears to have been allowed by the Additional Commissioner Ujjain vide order dated February 14, 1991. It is claimed by the land owners that in the order dated February 14, 1991, the Additional Commissioner had held that till the application under Section 20 of the Act was decided, no action under Section 10(1) or 10(3) of the Act should have been taken, more so, when the Competent Authority itself, vide order dated May 31, 1982, had ordered staying of the proceedings till the matter of exemption under Section 20 of the Act was decided. The Additional Commissioner finally directed that no possession could be taken till the application under Section 20 of the Act was decided. It further appears from the record that the land owners claimed that the earlier draft statement filed by them was not available on the record in the office of the Competent Authority and therefore they, claiming themselves to be members of an HUF, filed a fresh statement on August 19, 1994. The said statement was taken into consideration by the Competent Authority on August 30, 1994. Vide an order passed on the said date i.e. August 30, 1994, the Competent Authority held that since the land owners, constituted a Hindu undivided family and keeping in view that there were 9 adult members in the family and each one of them was entitled to 0.200 hectares, and the total holding owned by the family being 1.778 hectares, there was no surplus area with the land owners. Consequently, the proceedings for declaration of surplus area were dropped. A copy of the order dated August 30, 1994 is appended as Annexure P-7 with the present petition. It further appears from the record that after passing of the order dated August 30, 1994 (Annexure P-7), the matter was taken-up by the State Government, exercising its suo-moto powers under Section 34 of the Act, to examine the validity of the aforesaid order. In exercise of the aforesaid powers, an order dated September 18, 1995 was passed staying operation of the order dated August 30, 1994 and issuing a show cause notice to the land owners as to why the aforesaid order be not set aside. A copy of the order dated September 18, 1995 has been appended as Annexure P-8 with the petition.

The application filed under Section 20 by the land owners, claiming exemption for their land, was dismissed by the Competent Authority vide order dated September 27, 1995. While dismissing the said application, the Competent Authority directed that possession of the surplus area of the land be taken in accordance with law. It may also be relevant to notice that at that point of time, proceedings under Section 34 of the Act had already been initiated suo- moto against the order dated August 30, 1994 and were still pending before the State Government. Although, after dismissal of the application under Section 20 of the Act, the Competent Authority was required to initiate proceedings for taking possession of the land from the land owners in accordance with law, but it appears that without issuing any fresh notice to the land owners under Section 10(5) of the Act, an order dated October 17, 1995 was passed whereby the Competent Authority directed the Tehsildar to take possession under Section 10(6) of the Act. It also appears that the land owners appeared before the Competent Authority on November 4, 1995, requesting that since a revision petition was pending in the matter before the State Government, in which there was an order of status quo, therefore, possession be not taken. The said request was declined by the Competent Authority on November 23, 1995. Another subsequent order was passed on December 11, 1995 ordering the Tehsildar to take immediate possession. A Panchanama dated December 23, 1995, Annexure P-2 is available on record which indicates that possession was shown to be taken by respondent No. 4 i.e. Tehsildar Nazul. A communication dated December 26, 1995, Annexure P-3, is also appended to the petition, whereby Tehsildar had communicated to the Competent Authority indicating that possession of the surplus land had been taken. Annexure P-4 dated January 15, 1996 is a communication from the competent authority to Tehsildar directing that entries in the revenue record be made with regard to taking of possession of the surplus area. Annexure P-5 is the Khasra Panchasala which shows the changed entries of the surplus land in the name of the State Government. On July 15, 1996, vide, Annexure P-6, a notice was issued to Anandi Bai to the effect that the land measuring 1.201 hectares had been declared as surplus area under Section 10(3) of the Act and had vested in the State Government and the possession thereof, had also been taken. The compensation payable for the said land was proposed as Rs. 74388/-.

In the revisional proceedings, which had been initiated by the State Government in exercise of its suo-moto powers, a final order dated February 14, 2000 was passed whereby the earlier order dated August 30, 1994(Annexure P-7), was set aside. The order dated February 14, 2000 has been appended as Annexure P-9 with the present petition. A further order dated May 24, 2000, has been appended as Annexure P-10 with the petition whereby the assessment of compensation for the aforesaid acquired land, was finalized. The Act was repealed by the Urban Land (Ceiling and Regulation) Repeal Act, 1989 (hereinafter called Repeal Act). The said Repeal Act received the Presidential Assent on March 22, 1999 and was published in the gazette of India on the same day. With regard to the States, the same was to come into operation with effect from a particular State adopted the said Repeal Act. The State Legislature of Madhya Pradesh, adopted the said Repeal Act on February 17, 2000. In these circumstances, the principal Act stood repealed by the Repeal Act w.e.f. February 17, 2000, in the State of Madhya Pradesh.

On July 30, 2001 i.e. after repeal of the principal Act, the land owners filed an application/petition before the State Government. It was claimed by them that the entire proceedings taken by the Competent Authority with regard the declaration of their surplus area and delivery of possession were completely vitiated and illegal, in as much as, even when their application under Section 20 of the Act seeking exemption, was pending and there was an interim order granted in the said proceedings then any further proceedings under Sections 10(1) and 10(3) of the Act could not have continued. The land owners also claimed that even after an order dated August 18, 1995 had been passed by the State Government, in exercise of suo-moto powers, staying operation of the order dated August 30, 1994 and a show cause notice had been issued to them, still during pendency of the said revision petition, no proceedings for delivery or seeking possession from the land owners could have been taken by the Competent Authority/Tehsildar. It was also pleaded by the land owners that even after dismissal of their application filed under Section 20 of the Act, possession was required to be taken from the land owners only by following the due procedure under the Act and since all proceedings had been taken against them behind their back and without ever serving any notices, therefore, the entire proceedings were null and void and were liable to be set aside.

On the aforesaid petition filed by the land owners, the State Government, sought a report from the Competent Authority and also sought an opinion from the Law Department. The report submitted by the competent authority on the petition filed by the petitioners is appended as Annexure R-6/A along with reply filed by respondents No. 6,11 to 15. Various objections raised by the land owners have been conceded by the Competent Authority. The Competent Authority, on the basis of the record, has reported that due procedure under the Act, had not been followed by the Competent Authority and mandatory notices under Section 10(5), had not been issued to the land owners before the possession was shown to have been taken from them. The Competent Authority has also reported that even after the order dated August 30, 1994 passed by the Competent Authority declaring that the land owners had no surplus area, had been stayed by the State Government in exercise of its suo-moto powers, the proceedings in the said revision, were pending and there was a direction to maintain status-quo. In these circumstances, the Competent Authority reported that when the said proceedings were pending and were finally decided only on February 14, 2000, therefore, all proceedings taken in the years 1995/96 with regard to delivery of possession etc. were absolutely without any jurisdiction. In these circumstances, the Competent Authority, through the said report dated July 30, 2001(Annexure R-6/A), reported to the State Government that the order dated February 14, 2000 was liable to be set aside. On receipt of the said report, the State Government passed an order dated February 22, 2003 whereby the aforesaid petition filed by the land owners was allowed and all the proceedings taken by the Competent Authority, declaring the land as surplus area and the proceedings taken for possession of the land, were declared void-ab- initio. A copy of the order dated February 22, 2003, has been appended as Annexure P-12 with the present petition. A consequential order dated March 3, 2003 Annexure P-13, has been passed by the competent authority, whereby the land has been ordered to be reverted back to the owners by deleting the name of the State Government. At this stage, it may also be noticed that an application was filed by the petitioner-society on December 1, 2002 before the Principal Secretary Revenue and the Collector Ujjain making a request for the allotment of land to it for construction of the building of an educational institution and also for using the land as playground etc. In the application, the petitioner-society, also requested that since the land comprised in Survey No. 4125/1, 4120/1, 4128/1/1, 4128/2, 4153/3 and 4154 was available, having been declared as surplus, the said land be allotted to the petitioner-society. It may be relevant to notice that the land in the said survey numbers is the land in question, which had been declared as surplus and had originally belonged to the family of Anandi Bai. A copy of the said application filed by the petitioner-society is Annexure P-15 on record. The said application appears to have been forwarded to the authorities at Ujjain for appropriate action. On December 7, 2002, the Tehsildar Ujjain issued a communication to the petitioner-society that any further action on the said application could be taken only if 10% of the premium amount was deposited within 15 days. The petitioner-society accordingly deposited an amount of Rs. 30720/- on March 5, 2003. The receipt of payment in this regard has been appended as Annexure P-17 with the present petition. Since in the meantime, an order dated February 22, 2003 had been passed by the State Government, accepting the petition filed by the land owners and setting aside the declaration of surplus area and reverting the land to the land owners, therefore, the petitioner-society filed an application before the State Government on November 19, 2003 against the order dated February 22, 2003. A copy of the said application has been appended as Annexure P-18 with the present petition. However, the said application filed by the petitioner-society has been rejected by the State Government through a communication dated January 5, 2006, when it has been informed that no further action could be taken by the State Government and the petitioner- society should seek appropriate remedy in Court. A copy of the communication dated January 5, 2006 has been appended as Annexure P-19 with the present petition. It is in these circumstances that the petitioner- society has approached this Court through the present petition by raising a specific challenge to the order dated February 22, 2003, Annexure P-12, and also challenging the order Annexure P-19, whereby the request made by it for cancellation of the said order Annexure P-12, has been rejected by the State Government.

The claim made by the petitioner-society has been contested by the respondents. Two separate replies have been filed. A preliminary reply has been filed on behalf of the official respondents No. 1 to 4. A detailed reply has been filed by the private respondents No. 6 and 11 to 15. The impugned orders passed by the State Government have been defended. In their reply, the private respondents have defended the order dated February 22, 2003 Annexure P-12 by stating that all proceedings taken by the Competent Authority were in complete violation of the mandatory provisions of the Act and as such were not sustainable. The aforesaid respondents have also maintained that notices under Section 10(5) of the Act, had never been issued by the Competent Authority and therefore, all the proceedings showing the delivery of possession to the authorities were also contrary to law. The said respondents have specifically pleaded that the family of Anandi Bai consisted of Anandi Bai, Dev Narayan, Yogesh, Gopal, Sunil, Gauri Shankar, Om Prakash, Geeta Bai and Kailash i.e. total 9 persons and each one of whom was entitled to 0.200 hectares of land and since the total area with the family was only 1.778 hectares therefore, there was no surplus land with the family. Another objection raised in the said reply is that Anandi Bai having died on October 15, 2001, she had executed a will in favour of Kailash her son, and after her death, Kailash, had executed sale deeds out of the land in question in favour of Om Grih Nirman Sahakari Sanstha Ujjain and Shivam Grih Nirman Sahakari Sanstha Ujjain on March 28, 2003. The said sale deeds were registered documents. In these circumstances, it has been claimed that the aforesaid two societies being necessary parties, had not been impleaded as respondents in the petition. I have heard Shri A.M. Mathur, learned Senior counsel appearing for the petitioner-society, Shri Anand Pathak, learned Deputy Government counsel and Shri S.C. Bagadiya, learned Senior counsel appearing for the private respondent-land owners at a considerable length and with their able assistance, have also gone through the record in detail. Shri A.M. Mathur learned Senior counsel appearing for the petitioner-society, has vehemently argued that the proceedings for declaration of surplus area with Anandi Bai, original land owner, stood finalized in the year 1995 and thereafter on December 23, 1995, even the possession of the said land had been taken, compensation assessed and the land entered in the name of the State Government. In these circumstances, maintains the learned Senior counsel, that it was not open to the land owners to file any application/revision petition before the State Government on July 30, 2001, when even the principal Act stood repealed by the Repeal Act w.e.f. February 17, 2000. Shri Mathur has argued that after repeal of the principal Act, neither any right was left with the land owners to have invoked the revisional jurisdiction of the State Government nor the State Government had any authority to accept the said petition by passing an order dated February 22, 2003. The learned Senior counsel, thus, contends that passing of the order Annexure P-12 and consequential orders Annexure P-13 and P-14, are totally without any authority and suffer from an inherent lack of jurisdiction. Shri Mathur, has contended that after the land in question had been declared as surplus and had duly vested in the State Government, the petitioner-society had applied to the State Government for allotment of the said land for constructing a building for educational institution and had even deposited the application money, as required in law, of an amount of Rs. 30720/-. On that basis, it is maintained by the learned Senior counsel that the petitioner-society had acquired a right to be considered for allotment of the said land and therefore, by passing of the order Annexure P-12 and setting aside of the surplus area of the land owners, the aforesaid vested right of the petitioner-society, has been taken away. Shri Mathur has also relied upon the provisions of the Repeal Act and has drawn my pointed attention to Sections 3 and 4 of the Repeal Act. It has been maintained by the learned Senior counsel that only such proceedings/powers were saved on repeal of the principal Act as were specifically mentioned in Section 3 of the Repeal Act. According to Shri Mathur, since no proceedings were pending on the date when the Repeal Act had come into operation in the State of Madhya Pradesh i.e. on February 17, 2000, therefore, the State Government was left with no powers to exercise its revisional jurisdiction, when a fresh petition was filed by the land owners on July 30, 2001. Shri Mathur also contends that since the order passed by the State Government suffers from an inherent lack of jurisdiction, therefore, the said order is void-ab-initio and is liable to be set aside. In support of the aforesaid contention, Shri Mathur has relied upon two judgments of the Apex Court reported as 2007(5) SCALE 34 (Subhash Mahadevasa Habib Vs. Nemasa Ambasa Dharmadas (D) by LRS. and ors.) and in the case of Hasham Abbas Sayyad Vs. Usman Abbas Sayyad and others, (2007)2 SCC 355. On the other hand, Shri S.C. Bagadiya, learned Senior counsel appearing for the private respondents, has refuted all the aforesaid contentions. Besides raising contentions on merit of the controversy, Shri Bagadiya has also raised a preliminary objection with regard to the necessary parties to the petition having not been impleaded and has also challenged the locus-standi of the petitioner- society to challenge the orders passed by the State Government in favour of the private respondents, by filing the present petition.

Shri Bagadiya has contended that since two sale deeds dated March 27, 2003 had been executed by Kailash in favour of two cooperative societies and the aforesaid societies have not been impleaded as parties to the present petition, therefore, the present petition filed by the petitioner-society, is liable to be dismissed on this ground alone. The learned Senior counsel also points out that a specific objection had been raised in the written statement in this regard but even thereafter no remedial steps had been taken by the petitioner-society. Learned Senior counsel for the private respondents, has also challenged the locus-standi of the petitioner- society to challenge the order dated February 22, 2003, Annexure P-12, passed by the State Government in favour of the land owners. He maintains that declaration of surplus area of a land owner is a matter essentially between the State Government and the land owner and no third person, such as the petitioner-society, has any locus-standi to challenge any order passed in the said proceedings. According to the learned counsel, once there were serious infirmities in declaration of the surplus area of the land owners and mandatory provisions of the Act had not been followed and even mandatory notices under Section 10(5) of the Act had not been issued, then the petitioner-society had rightly approached the State Government to rectify the said defects and on filing of the petition by the land owners, the State Government had duly sought a report from the Competent Authority and had also sought the opinion from the Law Department and it was only thereafter, taking into consideration the facts and circumstances of the case, had chosen to set aside the said vitiated proceedings. According to the learned counsel, merely because the petitioner- society had applied for allotment of land for construction of an educational institution and in that application had even given the details of the land of the present land owners, would not give them any locus-standi to challenge the action of the State Government, in as much as, mere filing of an application and depositing the application money by the petitioner-society would not confer any rights, whatsoever, upon it to claim the land of the private respondents. On merits of the controversy, Shri Bagadiya has referred to the report Annexure R-6/A submitted by the Competent Authority and has argued that the said report shows the various irregularities committed by the competent authority in issuing the final statement and also illegality in the proceedings for taking the possession. The learned Senior counsel maintains that the report clearly reflects that mandatory provisions of the Act had been ignored by the Competent Authority and even when the matter was pending in proceedings under Section 20 of the Act and also in the revisional proceedings, which had been initiated by the State Government suo-moto, the Competent Authority had chosen to proceed further with the matter and take the possession. Lastly, it has been argued by Shri Bagadiya that the family of Anandi Bai comprised of nine other members, each one being entitled to 0.200 hectares of land i.e. a total of 1.800 hectares and since the total holding with the family was merely 1.778 hectares, the land could not be treated to be surplus with the family.

I have duly considered the rival contentions raised by the learned counsel for the parties. The details facts have already been noticed above. In fact, the report submitted by the competent authority on December 3, 2001(Annexure R-6/A) clearly shows that the mandatory provisions of the Act, had not been followed by the competent authority, when final statement with regard to the surplus land was issued and thereafter proceedings for taking over the possession of the surplus land were initiated. It appears from the record that an order dated May 31, 1982 had been passed by the competent authority ordering that since the owners had filed a petition under Section 20 of the Act seeking exemption of their land therefore, proceedings for declaration of surplus land be kept in abeyance. Even then the aforesaid proceedings were continued and after dismissal of the appeal filed by the land owners against the order dated April 12, 1982 on December 16, 1988, the competent authority ordered the publication of the notification under Section 10(1) of the Act. Even at that point of time, no individual notices seem to have been served upon the land owners. In these circumstances, no objections were filed by them. Noticing that no objection had been filed, a final statement was ordered to be published vide order dated January 2, 1990 and was published in the official gazette on March 3, 1990. An order was passed on March 23, 1990 ordering issuance of the notices under Section 10(5) of the Act. At that point of time, the said notices were issued. However, an order appears to have been passed on February 14, 1991 by the Additional Commissioner, whereby the appeal filed by the land owners, was allowed and it was ordered that proceedings for declaration of surplus area and for taking of the possession be kept in abeyance till their application under Section 20 was finally decided.

When the said petition under Section 20 of the Act filed by the land owners was dismissed on September 27, 1995 then the competent authority directed that further proceedings be taken in accordance with law. At that point of time, proceedings under Section 34, having been initiated on suo-moto powers by the State Government, were pending. However, vide order dated October 17, 1995, the competent authority without issuing any fresh notice under Section 10(5) of the Act and without taking note of the pendency of the proceedings before the State Government, ordered the Tehsildar to take possession under Section 10(6) of the Act. It is in pursuance to the said orders that the proceedings with regard to delivery of possession were taken by the Tehsildar on December 23, 1995. There is absolutely no material available on the record to show that at the time delivery of possession was ordered, or the possession taken from the land owners, any notice under Section 10(5) of the Act was issued to the land owners. Issuance of the said notice was not only mandatorily required in terms of the provisions of the Act, but was also required in view of the order dated September 27, 1995 passed by the Competent Authority, when it had directed that further proceedings be taken in accordance with law. The report Annexure R-6/A also indicates that there was an order passed by the State Government directing the parties to maintain status quo. In view of the aforesaid orders passed in the revisional proceedings, no further proceedings with regard to taking of the possession could have taken by the Competent Authority or the Tehsildar. It is well settled that the provisions of Section 6, 8(1), 10(3), 10(5) and 10(6) of the Act are mandatory in nature and if there is any violation in following the said procedure then the entire proceedings with regard to declaration of surplus area and taking over possession, are vitiated. Reference in this regard may be made to Ram Prasad and others Vs. State of M.P. and others 2002(5) MPLJ 417, Babu Lal Tiwari Vs. State of M.P. and others 2003(1) MPJR SN 63, Sudhir Agrawal and another Vs. State of M.P. and others 2004(3) MPHT 16 (NOC) and also an unreported judgment of this Court in W.P. No. 603/2000 decided on September 6, 2000, which was upheld by the Division Bench of this Court in LPA No. 209/01 decided on April 24, 2002. In these circumstances, it has to be necessarily inferred that all proceedings taken by the Competent Authority, while passing the orders Annexure P-2,P-3 and P- 4, were taken in complete violation of the mandatory provisions of Act and as such were rightly set aside by the State Government while passing the order dated February 22, 2003 (Annexure P-12).

It may also be noticed at this stage that the order Annexure P-7 was passed on August 30, 1994 by the Competent Authority declaring that the family of Anandi Bai had no surplus area. Although operation of the said order was stayed by the State Government, in exercise of its suo- moto powers, by passing the order Annexure P-8 on September 18, 1995, but the proceedings remained pending before the State Government for a period of approximately 5 years. In the meantime, the principal Act had been repealed by the Parliament by enacting the Urban Land (Ceiling and Regulation) Repeal Act, 1999. The Repeal Act was published in the Government of India gazette on March 22, 1999. The same was to be adopted by various States and the judicial notice can also be taken of the fact that soon after the enactment of Repeal Act, State Government of Madhya Pradesh had made public its intention to adopt the Repeal Act. It was known to all that the Repeal Act was going to be adopted shortly by the State Legislature. Thus, when the State Legislature had adopted the Repeal Act w.e.f. February 17, 2000, passing of the order Annexure P-9 by the State Government on February 14, 2000 itself, raises a serious doubt with regard to bonafides of that order. This brings me to the question as to whether the State Government had any power to entertain and allow the petition filed by the land owners after the Repeal Act had come into operation w.e.f. February 17, 2000. A similar controversy had arisen before the Division Bench of Gujarat High Court in the case of Rameshchandra Shamjibhai Vs. State of Gujarat (2000) 4 GLR page 1 (MANU/GJ/0937/2000). Their Lordship traced the entire history of the Repeal Act and held that the inference of such effect of Section 4 of the Repeal Act, as to take away completely power of judicial scrutiny, would be a clear negation of the legal and constitutional powers of the Courts, Tribunals and authorities under the two enactments. The history of the Repeal Act was noticed by the Division Bench as follows:-

"In the year 1998, a bill was introduced in the Parliament proposing the repeal of the Act of 1976. Along with the bill, a Statement of Objects and Reasons were also placed on the floor of the parliament explaining the desirability of the repeal of the Act of 1976. The relevant part of the Statement of Objects and Reasons placed in the parliament along with the bill read as under:- "The urban land (Ceiling and Regulation) Act, 1976 was passed with a laudable social objective. The main purpose was to prevent concentration of urban land in a few hands and to provide affordable housing to the Economically weaker Sections. It has on the contrary pushed up land prices, practically brought the housing industry to stop and provided opportunities for corruption. There is a widespread demand for removing this irritant to land assembly and construction activity. During the implementation of the Urban Land (Ceiling and Regulation) Act, 1976, there have been a spate of litigations giving rise to serious hurdles in taking over possession of land, by the State Government. Public opinion is nearly unanimous that the Act has failed to achieve its objectives as expected.

2. Parliament has no power to repeal or amend the Act unless resolutions are passed by two or more State Legislatures as required under clause

(2) of article 252. The Legislatures of Haryana and Punjab have passed resolutions empowering Parliament to repeal the Act in those States. The Act stands repealed in those States and in the Union territories immediately after promulgation of the repeal ordinance and subsequently if State Legislatures adopt this Repeal Act by resolution, then the Urban Land (Ceiling and Regulation) Act, 1976 will stand repealed in those States, from the date of its adoptions.

3. The urban Land (Ceiling and Regulation) Repeal Bill, 1998 was examined by the Standing Committee on Urban and Rural Development. The Committee felt that the land which is yet to be put to use for the original purpose stated in the Act, under possession of the Government should not be restored to previous owners as such restoration may lead to avoidable discrimination. The Committee also suggested that the repeal Bill should contain a provision for abatement of proceedings in the different courts. Keeping in view the recommendation of the Committee, this Bill is being introduced to replace the Urban land (Ceiling and Regulation) Repeal Ordinance, 1999 (Order 5 of 1999) notified on 11.01.1999 so that the State Government would be free to have their own legislation commensurate with their needs and experiences. Till this Act is repeal, States have no power to legislate on this subject.

4. The proposed repeal, along with some other incentives and simplification of administrative procedures, is expected to revive the stagnant housing industry. The repeal will facilitate construction of dwelling units both in the public and private sector and help achievement of targets contemplated under National Agenda for Governance. The repeal will not, however, affect vesting of any vacant land under sub- Section (3) of Section 10 of the Urban Land (Ceiling and Regulation) Act, 1976 the possession of which has been taken over by the State Governments. It will not affect payments made to the State Governments for exemptions. The exemptions granted under Section 20 of the Act will continue to be operative. The amounts paid out by the Sate Governments will become refundable before restoration of the land to the former owners.

5. The Bill also seeks to facilitate land assembly and a flexible regime for administering Urban Land to suit the varying local conditions based on State level legislations or requirements. New Delhi The

17th February 1999"

10). The above Statement of Objects and Reasons disclose that the Parliament felt that the Act of 1976 failed to achieve the object which was expected of it. On the contrary the land prices were pushed up to unconscious levels resulting in over all stoppage of housing industry and leading to copious opportunities for corruption. A clog was found on housing and there was widespread clamour for removing such clogs. It was found necessary to repeal the Act of 1976 'to revive the stagnant housing industry and provide affordable living accommodation for those who are in a state of undeserved want and are entitled to public assistance'. It was made clear that the repeal is not to affect the land on which building activity has already commenced.

11). It is to be noticed that in the Bill introduced of the year 1998, the proposed Section 3 containing the savings intended to leave unaffected by the repeal such lands of which possession has already been taken by the State and whereas the use of such land under the Repealed Act has already commenced. The proviso to Section 3 of the Bill also clearly intended that where the use of the land has not commenced of which possession had been taken by the State Government, such land shall be restored to the person from whom it was taken over and the amount paid was liable to be refunded to the State Government.

12). On the introduction of the above mentioned Bill of 1998, first an Ordinance was promulgated (No. 5 of 1999) on 11-1-1999 which later became an Act impugned in this batch of petitions shortly described as the Repealing Act of 1999. The Urban Land (Celling and Regulation) Repeal Act, 1999 of which provisions contained in Section 3 (1)(a) and Section 4 are under challenge needs reproduction in full:- "The following Act of Parliament received the assent of the President on the 22nd March, 1999 and is hereby published for general information:-

The Urban Land (Ceiling and Regulation) Repeal Act, 1999 No.15 of 1999. (22nd March,1999) An Act to repeal the Urban Land (Ceiling and Regulation) Act, 1976.

Be it enacted by Parliament in the Fiftieth Year of the Republic of India as follows:- 1.(1) This Act may be called the Urban Land (Ceiling and Regulation) Repeal Act, 1999.

(2) It applies in the first instances to the whole of the States of Haryana and Punjab and to all the Union territories; and it shall apply to other State, which adopts this Act by resolution passed on that behalf under clause(2) of Article 252 of the Constitution.

(3) It shall be deemed to have come into force in the States of Haryana and Punjab and in all the Union territories on the 11th day of January,1999 and in any other State which adopts this Act under clause (2) of Article 252 of the Constitution on the date of such adoption; and the reference to repeal of the Urban Land (Ceiling and Regulation) Act, 1976 shall, in relation to any State or Union Territory, mean the date on which this Act comes into force in such State or Union territory.

2. The Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter refer to as the principal Act) is hereby repealed. 3.(1) The repeal of the principal Act shall not affect:-

(a) the vesting of any vacant land under Sub- Section (3) of section 10, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or the competent authority.

(b) the validity of any order granting exemption under Sub-section (1) of section 20 or any action taken there under, not withstanding any judgment or any court to the contrary;

(c) any payment made to the State Government as a condition for granting exemption under sub-section (1) of Section 20. (2) Where-

(a) any land is deemed to have vested in the State Government under sub-section (3) of section 10 of the principal Act but possession of which has not been taken over by the State Government in this behalf or by the competent authority; and

(b) any amount has been paid by the State Government with respect to such land, then, such land shall not be restored unless the amount paid, if any, has been refunded to the State Government.

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.

5. (1) The Urban Land (Ceiling and Regulation) Repeal Ordinance, 1999 is hereby repealed.

(2) Not withstanding such repeal, anything done or any action taken under the said ordinance shall be deemed to have been done or taken under the corresponding provisions of this Act".

Their lordships further noticed as follows: "What is noticeable from the impugned provisions contained in Section 3(1)(a) (supra) is that the provisions proposed in the Bill dated 4-6-1998 were for leaving only such land unaffected by repeal of which use under principal Act has commenced. That proposal was changed in the subsequent Bill dated 17-2-1999. The Repealing Act under clause (a) of subsection (1) of Section 3 provides that the repeal shall not affect vesting of any vacant land under the Repeal Act, possession of which has been taken over by the State Government, irrespective of the fact whether use of such land under the principal Act had commenced or not."

In ultimate conclusion their Lordship of the Gujarat High court held as follows:

"We have given our thoughtful consideration to the points urged and carefully examined the ratio of the decision of the learned Single Judge in the case of Maganlal Patel (Supra). On a bare reading of the provision and particularly the language used in opening part of Section 4 "all proceedings relating to any order made or purported to be made ...... shall abate" only means that such proceedings pending before any court, tribunal or authority shall not be continued and would come to an end. The language used aforesaid can never mean that the power of the Court, tribunal or authority to examine whether the order passed or purported to have been passed under the principal Act, while it was in operation, was valid or not, has been taken away. Any other interpretation on the language of Section 4 would be unconstitutional, because the Legislature by no provision can completely take away the power of judicial review. The learned Single Judge, in the portion of his judgment quoted above, has taken a view that as an effect of Section 4 of the Act of 1999, even writ proceedings before the High Court would abate. We find no ground to take a contrary view and overrule his judgment on the interpretation of Section 4 but we consider it necessary to add a rider or explanation so as to construe the provision in a manner to make it constitutionally valid. In the impugned provision of Section 4, the word "abate" if construed harmoniously in the light of the constitutional provisions, would mean that the proceedings under the Repealed Act would not be continued on the repeal because as a result of repeal of the principal Act, the proceedings thereunder are rendered infructuous. In our considered opinion, provisions of Section 4 cannot be read and construed to infer that the effect of abatement would be that even validity of actions taken under the Repealed Act and examination of it provisions for the purpose of ascertaining whether any rights and liabilities thereunder are saved, would be outside the scrutiny of courts, tribunals or authorities. The inference of such effect of Section 4, as to take away completely power of judicial scrutiny, would be a clear negation of the legal and constitutional powers of the courts, tribunals and authorities under the two enactments. Such interpretation would militate against the theory of basic structure of the Constitution as propounded by the Constitution Bench of the Supreme Court in the case of his His Holiness Kesavananda Bharati Sripadagalvaru and others Vs. State of Kerala AIR 1973 SC 1461 which is followed and reiterated by recognizing the power of superintendence of the High Court under Article 227 of the Constitution over Administrative Tribunal in case of L. Chandra Kumar Vs. Union of India and others AIR 1987 SC 1125. In the case of Chandra Kumar, the Supreme Court has reiterated that the power of judicial review under Article 226 of the High Court and Article 32 of the Supreme Court is an integral and essential feature of the Constitution, constituting part of its basic structure. The independence of judiciary is also a basic part of the Constitution. The provisions of Section 4 having an effect of abatement of pending proceedings in relation to an 'order made or purported to be made' under the Repealed Act, cannot be construed to completely take away the power of the courts, tribunals and authorities as judicial and quasi-judicial bodies to examine the validity of the order or action taken under the Repealed Act and to find out the impact of repealing Act on the rights and liabilities of the land owners and the State. An example will make the legal position clear. Under Repealed Act, suppose an agriculture land which is not covered by the definition of 'urban land' under Section 2(o) of the Repealed Act of 1976 is clubbed with other urban land of an owner and declared excess to be deemed to have been acquired and vested in the State. Thereafter it is taken possession of. It would be saved and retained by the State as an effect of Section 3(1)(a) of the Repealing Act of 1999. Construction as sought to be put on Section 4 would result in abatement of case of such owner pending before any authority, Court or tribunal and would deprive the land owner from contending that he did not hold any excess urban land, such land was not governed by the Repealed Act of 1976, and was wrongly treated to have been acquired and vested in the State and its possession was wrongly taken from him by force and coercive methods. Such unjust result cannot be intended to have been provided in Section 4 of the Act of 1999. The provisions of Section 4 providing for abatement of all proceedings under the Repealed Act, can only mean that on repeal of the principal Act, all proceedings under it, to the extent they are not saved and left unaffected by the Repealing Act, would not be proceeded with as having been rendered infructuous. All such pending proceedings in which previous operation of the Repealed Act is challenged can never be deemed to have been abated, as the pending cases would require some adjudication and decision on the question of legal effect of the abatements provided in Section 4 of the Act. "Purport" is a well known word in legal usage and has many shades of meaning to be ascertained in the context of the provisions under construction. In the present context, it cannot be construed to mean that proceedings found to be de hors the Repealed Act, or beyond jurisdiction of the concerned authorities, who had undertaken it, although prima facie invalid, would be beyond the scope of judicial scrutiny. The use of word "purport" in Section 4 is to be read down in the manner not to render it unconstitutional. The Legislature can never be presumed to have intended that even an order passed de hors the Act or beyond jurisdiction of the authorities under the Repealed Act would be outside judicial scrutiny. Every law is presumed to be prospective in operation unless a contrary intention is expressed in that law. By repeal of principal Act, its previous operation cannot be held to be beyond judicial scrutiny where such previous orders and proceedings are found to have adversely and prejudicially affected the parties. The right of land owners to challenge the validity of such proceedings cannot be intended to have been taken away by providing abatement of such proceedings. As observed by us above,"the basic structure" theory of the Constitution in Kesavananda Bharati's case (supra) and reiterated in L.Chandra Kumar's case (supra) does not countenance such an unconstitutional and unjust situation. An interpretation of the provisions, therefore, that such law does not deprive the power of independent judiciary has to be preferred. (Emphasis supplied) I am in respectful agreement with the view taken by the Division Bench of Gujarat High Court in Ramesh Chandra's case (supra).The effect of the repeal of the principal Act and the correct interpretation of Sections 3 and 4 in the Repeal Act have to be construed in a manner that the scrutiny by Courts, tribunals or authorities of the orders and the actions taken under the principal Act, prior to the repeal, is not completely taken away. In my considered view, the intention of the Legislature in enacting Section 4 of the Repeal Act cannot be taken to mean that the powers of the judicial scrutiny of actions taken and order passed under repeal or Repealing Act had been abrogated. The provision of Section 4 of the Repeal Act has to be read down to preserve the aforesaid inherent powers of the Courts, tribunals and authorities to rectify the mistakes committed earlier. It is apparent that once an illegality had been brought to the notice of the State Government by the land owners by filing a petition, then on entire perusal of the record and after seeking report from the Competent Authority, the State Government has passed the appropriate order dated February 22, 2003, Annexure P-12. The aforesaid scrutiny of the record by the State Government to examine the fact as to whether the mandatory provisions of the Act had been followed by the Competent Authority or not, while passing earlier order, was always available to the State Government. The challenge made by the petitioner-society to the jurisdiction of the State Government is thus, without any basis. At this stage, the question of locus-standi of the petitioner-society to file the present petition may also be examined. On its own showing the petitioner-society had filed an application for allotment of the land for construction of the building of an educational institution on December 1, 2002, vide application Annexure P-15. It is true that in the said application, the petitioner-society had given the details of the land which at that point of time had been declared as surplus, belonging to the land owners, but that fact itself would not have given any right to the petitioner-society for allotment of the said land. A mere application filed by it could not be treated to have created a right in the petitioner-society. On December 7, 2002, the Tehsildar had required the petitioner-society to make a deposit of 10% of the premium amount so that the application could be processed further. The aforesaid deposit of Rs. 30720/- was made by the petitioner-society on March 6, 2003. However, at that point of time, when the aforesaid deposit had been made, an order dated December 22, 2003(Annexure P-12) had already been passed by the State Government, whereby the land of the land owners had been taken to be not surplus. Thus, even if it be taken that the petitioner-society had applied for allotment of the aforesaid surplus land, the said application could be treated to be complete in all respects only when the requisite deposit was made on March 6, 2003, when the said land was not even treated as surplus. Consequently on that score alone, the application filed by the petitioner-society for allotment of the said land, could not be considered at all by the State Government/Tehsildar. Even otherwise by mere filing the application for allotment of land(even allotment of the surplus land of land owners), the petitioner-society could not be deemed to have acquired any vested right in the said land so as to entitle it to challenge the order dated February 22, 2003 Annexure P-12. Thus, I am satisfied that the petitioner-society has absolutely no locus-standi to file the present petition challenging the order Annexure P-12 in favour of the private respondents. It is also not in dispute that a specific objection had been taken by the private respondents in their reply that they had sold the part of the land in question to two cooperative societies vide two registered sale deeds executed on March 27, 2003. In fact copies of the two sale deeds have been appended as Annexure R-6/D. Even thereafter, no steps were taken by the petitioner-society to implead the said societies as parties to the present petition. The present petition, thus, suffers from non-joinder of necessary parties and is liable to be dismissed on this ground also. At this stage, it may also be noticed that in the order dated August 30, 1994, Annexure P-7, (although set aside by the State Government later on vide order Annexure P-9 dated February 14, 2000), it had been specifically noticed that the family of Anandi Bai comprised of 9 adult members and each member was entitled to 0.200 hectares of the land. Consequently, the total land holding with the family being 1.778 hectares, land with the family could not be treated to be surplus in any manner. The aforesaid fact has specifically been pleaded by the private respondents in their reply and has not been controverted by the petitioner- society. Consequently, it is also apparent that factually also there was no surplus land available with the family of Anandi Bai. The petitioner-society has approached this Court to invoke the jurisdiction of this Court under Article 226 of the Constitution of India. One of the principles inherent to exercise the extra ordinary jurisdiction under Article 226 is that the said jurisdiction should be exercised to do justice between the parties and the power of the Court should not be exercised to subject a party to injustice, even if some order had been passed by an authority on a wrong interpretation of law. The power vested in the High Court under Article 226 of the Constitution of India, is merely discretionary and therefore, the High court would be justified in refusing the writ of certiorari if no failure of justice had occasioned.

In the case of State Government of Maharashtra and others Vs. Prabhu (1994)2 Supreme Court Cases 481, the Apex Court made the following observations:- "There is distinction between writs issued as a matter of right such as habeas corpus and those issued in exercise of discretion such as certiorari and mandamus. The High Courts exercise control over Government functioning and ensure obedience of rules and law by enforcing proper, fair and just performance of duty. Where the Government or any authority passes an order which is contrary to rules or law it becomes amenable to correction by the courts in exercise of writ jurisdiction. But one of the principles inherent in it is that the exercise of power should be for the sake of justice. One of the yardstick for it is if the quashing of the order results in greater harm to the society then the court may restrain from exercising the power."

(Emphasis supplied) Again in the case of A.P. State Financial Corporation Vs. M/s Gar Re-rolling Mills and another (1994) 2 SCC 647 the Supreme Court made the following observations:- "........A court of equity, when exercising its equitable jurisdiction under Article 226 of the Constitution must so act as to prevent perpetration of a legal fraud and the courts are obliged to do justice by promotion of good faith, as far as it lies within their power. Equity is always known to defend the law from crafty evasions and new subtleties invented to evade law." Again in the case of Roshandeen Vs. Preeti Lal 2002(1) SCC 100, the Apex Court observed as follows:- "We are greatly disturbed by the insensitivity reflected in the impugned judgment rendered by the learned Single Judge in a case where judicial mind would be tempted to utilize all possible legal measure to impart justice to a man mutilated so outrageously by his cruel destiny. The High Court non-suited him in exercise of a supervisory and extraordinary jurisdiction envisaged under Article 227 of the Constitution. Time and again this Court has reminded that the power conferred on the High Court under Article 226 and 227 of the Constitution is to advance justice and not to thwart it (vide state of U.P. Vs. District Judge, Unnao). The very purpose of such constitutional power being conferred on the High Courts is that no man should be subjected to injustice by violating the law. The lookout of the High Court is, therefore, not merely to pick out any error of law through an academic angle but to see whether injustice has resulted on account of any erroneous interpretation of law. If justice became the by- product of an erroneous view of law the High Court is not expected to erase such justice in the name of correcting the error of law". Again in the case of the Surya Dev Rai Vs. Ram Chandra Rai AIR 2003 SC 3044 page, has observed as follows:- "Certiorari jurisdiction though available is not to be exercised as a matter of course. The High Court would be justified in refusing the writ of certiorari if no failure of justice has been occasioned. In exercising the certiorari jurisdiction the procedure ordinarily followed by the High Court is to command the inferior Court or Tribunal to certify its record or proceedings to the High Court for its inspection so as to enable the High Court to determine whether on the face of the record the inferior Court has committed any of the preceding errors occasioning failure of justice". A similar question arose before the Punjab and Haryana High court in the case of Jodh Singh Vs. Registrar (Deputy Commissioner) Ambala 1999(1) Recent Civil Reports (Civil) 441 and the following observations were made:- "14. In the light of the judgments referred to above, order dated 20.3.1991 of the Registrar cancelling the sale-deed cannot be sustained. However, taking that the Registrar had acted without jurisdiction in cancelling sale-deed, I do not think that in the facts and circumstances of this case I would be justified in issuing a writ of Certiorari quashing the order of the Registrar. A writ of Certiorari being a writ of discretion is issued only in cases where the order sought to be quashed has occasioned in a failure of justice. It is not every error of law that would induce this Court to exercise extra-ordinary jurisdiction under Article 226 of the Constitution of India. In this case, I am satisfied that nothing has been done by the Registrar which could be said to have caused any injustice to the petitioners. Challenge to the order of Registrar thus fails." (Emphasis supplied) In the present case it is apparent that the family of Anandi Bai comprised of 9 adult members, who were entitled to a total holding of 1.800 hectares of land under the Act. The family had merely 1.778 hectares of land. Thus, there was no surplus land with the family. Consequently, as noticed in the order dated August 30, 1994, the family had absolutely no surplus land. Therefore, even if it be taken, as argued by the learned counsel for the petitioner-society, that the order Annexure P-12 passed by the State Government was beyond its jurisdiction, still on consideration of the factual position, I am satisfied that it is not a fit case where this Court should exercise its extraordinary jurisdiction under Article 226 of the Constitution of India, in favour of the petitioner-society, since, in any case, justice had been done to the land owners while passing the order Annexure P-12. The aforesaid just order should not be set aside merely on a technical plea raised by the petitioner-society.

In view of the aforesaid position of law with regard the powers under Article 226 of the High court, I am satisfied that neither on facts nor on law, the petitioner- society is not entitled to invoke the extraordinary writ jurisdiction of this Court under Article 226 of the Constitution of India, more so when it has no locus-standi to file the petition.

As a result of the aforesaid discussion, I find absolutely, no merit in the present petition. The same is dismissed. There shall be no order as to costs. C.c. as per rules.

(VINEY MITTAL) JUDGE INDORE DATE: September , 2007.

BDJ W.P. No. 2122/2006 17.07.07 Shri A.M. Mathur , Senior Advocate with Shri Brijesh Pandya, Advocate, for the petitioner. Shri Anand Pathak, Dy. Govt. Advocate, for respondents No. 1 to 4.

Shri S.C. Bagadiya, Senior Advocate with Shri D.K. Chhabra, Advocate, for respondents No. 6, 11 to 15. Arguments heard. Judgment is reserved. (VINEY MITTAL) JUDGE .09.2007 Order/Judgment passed signed and dated. (VINEY MITTAL) JUDGE