[2014] 14 S.C.R. 1451 STATE OF ASSAM A v. · BHASKAR JYOTI SARMA & ORS. ETC. (Civil Appeal No. 10565 of 2014) B NOVEMBER 27, 2014 [T. S. THAKUR AND R. BANUMATHI, JJ.] Urban Land (Ceiling and Regulation) Act, 1999- s. 3-Land in question declared ceiling surplus under Urban Land (Ceiling and Regulation) Act, 1976 -After declaration, sale C , of the surplus land by (he owner - Possession of the land taken over by the Government- Certain portion of the surplus land allotted to 8 families - The case of purcflasers challenging the vesting of land with Government, dismissed and attained finality - Remaining surplus land allotted to D Development Authority - In the meantime repeal of 1976 Act by the 1999 Act and adoption thereof by the State in August 2003 - Allotment to Authority challenged by the descendants of the owner of the land - Held: repeal of the. principal Act does not affect the vesting of any vacant land u/ E s. 10(3), possession whereof has been taken by the· Government - In the present case possession·was taken prior to adoption of the Repeal Act by the State- Urban Land (Ceiling and Regulation) Act, 1976- s. 10.

F Allowing the appeals, the Court HELD: 1. Section 3 of Urban Land (Ceiling and Regulation) Act, 1999 (Repeal Act) makes it clear that repeal of the Principal Act i.e._Urban Land (Ceiling and Regulation) Act, 1976 does not affect the vesting of any G vacant land under sub-section (3) of Section 10, possession whereof has been taken over by the State Government or any person duly authorised by the State Government in that behalf or by the competent authority. H 1451 1452 SUPREME COURT REPORTS [2014j 14 S.C.R.

A In the present case, the appellant-State claims to have taken over the possession of the surplus land prior to adoption of the Repeal Act.· [P,ara 8][1457-G-H] 2 .. The failure of the Government or the authorised officer or the competent authority to issue a notice to B the land-owners in terms of Section 10(5) would not by itself mean that such dispossession is no dispossession in the eye of law and hence insufficient to attract Section · 3 of the: Repeal Act. In the present case, ifthe appellant's version regarding dispossession of the erstwhile owner C in December 1991 is correct, the fact that such dispi>ssession was without a notice under Section 10(5) will be .of no consequence and would not vitiate or obliterate the act of taking possession for the purposes of Section 3 of the Repeal Act. That is because the D erstwhile owner had not made any grievance based on breach of Section 10(5) at any stage during his lifetime implying theref>y that he had waived his right to do so. [Paras 11and13][1461-0-E; 1463-G-H] State of Uttar Pradesh v. Hari Ram 2013 (4) E SCC 280 : 2013 (2) SCR 301 - distinguished . . ~.. State of Gujarat and Anr. v. Gyanaba Di/avarsinh . J8,dega 2013 (11) sec 486- referred to.

3;:~The. question of dispossession of the owner or F .. the trarisferee was never agitated or determined by the High C~urt in the writ petition filed by the transferee. It . also does not appear that the respondent would adduce any documentary evidence before the High Court after this case'is remanded and would enable the High Court G to recQrd ~finding in regard to actual possession. That being so;; the question whether actual physical possessio11 was taken over remains a seriously disputed· question of fact which is not amenable to a satisfactory determination by the High Court in proceedings under ·H STATE OF ASSAM v. BHASKAR JYOTI SAR MA & ORS. 1453 ETC. Article 226 of the Constitution. Remand to the l'.figh Court A to have a finding on the question of dispossession, therefore, does not appear to be a viable solution. [Paras 14 and 15)[1464-G; 1466-A-C]

4. The alternate plea of the respondent that the order passed by the High Court is upheld except to the B extent of land to be restored to the respondents ·equivalent to the extent which was ·allotted in favour of Guwahati Metropolitan Development Authority is not acceptable. Out of the eight families in whose favour the surplus area was settled in the year 1992, four families C have been allotted disputed land. Such being the case the offer made by the respondent does not appear to be a feasible solution at this stage particularly when the allotments made are not in question nor have the allottees been impleaded as party respondents. [Paras 16 and D 17][1466-E-G; 1467-C] Case Law Reference 2013 (2) SCR 301 distinguished Para 12 E 2013 (11) sec 486 referred to Para 15 CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10565 of 2014. From the Judgment and Order dated 21-09-2010 of the High Court of Gauhati in WritAppeal No. 202 of 2007. F WITH Civil Appeal No. 10566 and 10567 of 2014 P. Vishwanathan Shetty, Dhruv Mehta, P.K. Goswami, Sr. Advs., Avijit Roy (For M/s Corporate Law Group), Boboy G Potsangbam, Khwairakpam Nobin Singh, Milly Hazarika, Manish Goswami, Rameshwar Prasad Goyal, Parthiv K. Goswami, Yashvardhan Singh, Ms. Charu Mathur, Ms. Diksha Rai, Advs. for the appearing parties .. H 1454 SUPREME COURT REPORTS (2014) 14 S.C.R. A The Judgment of the Court. was delivered by T. S. THAKUR, J. 1. Leave granted.

2. These appeals by special leave are directed against an order dated 21st September, 2010 passed by a Division Bench of the High Court of Assam at Guahati whereby Writ 8 Appeal No.202 of 2007 filed by the respondents herein has been allowed, order dated 13th April, 2007 passed by a learned. Single Judge of that Court set aside and the respondents held entitled to restoration of the possession of the land in dispute. c 3. Late Bhabadeb Sarma, father of the respondents, was recorded as a Pattadar of a ·plot of land measuring 73.26 Ares equivalent to 1 Bigha, 4 Kathas and 16 Lachas, covered by K.P. Patta No.493 (old)/594 (new) in Dag No.1008(old) bf· Sahar Ulubari, in Mouza Ulubari, Guahati. With the adoption-D of Urban Land (Ceiling and Regulation)Act, 1976 by the State of Assam, the said Shri Bhabadev Sarma submitted returns under Section 6 ofthesaidActon 19th October, 1976. In Urban Land Ceiling Case No.343 of1976 initiated by the District Collector against the said Shri Sarma, a draft statement under E .Section 8(3) was served upon the owner in regard to the land aforementioned which was, according to the draft statement, beyond the ceiling limit of 2000 sq. meters permissible under. the Act. Upon consideration of the objections raised by the owner to the said draft statement, a final statement under F Section 9 was prepared and published on 3rd September, 1982 declaring an area measuring 7981.48 Sq. meters to be in excess of the permissible limit. A notification dated. 15th May, 1984 under Section 10(1) followed declaring the vacant lana aforementioned to be in excess of the ceiling limit. G 4. In November 1984, the owner appears to have sold a major portion of the land in question to Mr. Kamala Kanta Ozah and five others in terms of different instruments of sale executed in their favour. A notification under Section 10(3) was st H published on 1 January, 1987 and the land in question STATE OF ASSAM v. BHASKAR JYOTI SARMA & ORS. 1455

ETC. [T. S. THAKUR, J.] declared Ceiling Surplus Government land. Apart of the said A land was on that basis allotted in favour of 8 families in terms · of land policy of the Government while the remaining area measuring 8.03 Ares was retained by the Government. It is not in dispute that the land record was also corrected by deleting the name of owner Bhabadeb Sarma as the Pattadar. B It is also not in dispute that no land revenue was collected from the erstwhile owners post vesting of the land in the State under Section 10(3) of the Act.

5. The appellant's case is that possession of the entire surplus land was taken over by the Revenue Authority on 7th C December, 1992. This did not, however, deter Kamala Kanta Ozah and others who had purchased the land either from filing an appeal against the order of vesting or challenging the proceedings in Writ Petition (Civil Writ Case No.2568of1992) filed before the High Court. Both these attempts made by the D purchasers of the land failed with the dismissal of the appeal by the Secretary to the Government of Assam, Department of· Revenue and the dismissal of Writ Petition No.2568 of 1992 by the High Court in terms of order dated 21st May, 2002. The High Court, it is pertinent to mention not only upheld the order E passed by the Collector-cum- Competent Authority but also the allotment of a substantial portion of the land in favour of 8 different families eligible for such allotment. Writ Appeal No.419 of 2002 filed by Kamala Kanta Ozah and others against the order passed by the Single Judge also came to be dismissed F by the Division Bench of the High Court by an order dated 2olh December, 2002. Special leave petition filed against the said order too failed and was dismissed by this Court on 8th August, 2003.

6. With the challenge to the proceedings under the Act G concluding in the manner indicated above, the Government of Assam by an order dated 27th November, 2003 allotted an extent of 8.03 Are to Guwahati Metropolitan Development Authority (GMDA) for construction of an office building for H 1456 SUPREME COURT REPORTS [2014] 14,S.C.R.

A the said authority. In the meantime on 12th December, 2003 ' ' the Urban Land (Ceiling and Regulation) Repeal Act was notified which came into force in the State of Assam w.e.f. 5th August, 2003, The appellant's case is that possession of the allotted land was handed over to GMDAon 25th December, B 2003 which action too came under challenge at the instance of the respondents in Writ Petition No.2519 of 2004, who stepped into the shoes of Bhabadeb Sarma upon his death on 3rd October, 1997. ASingle Bench of t,he High Court of Assam dismissed the writ petition upholding the allotment of c the land to GMDA and declined the prayer for restoration of the possession in favour of the writ petitioners-respondents herein. Aggrieved by the said order, the respondents filed Writ Appeal No.202 of 2007 before the High Court which was allowed by a Division Bench of the High Court by the order D impugned in this appeal. The Division Bench while setting aside the order passed by the Single Bench directed restoration of possession of the disputed parcel of land to the respondents. The present appeals filed by the State of Assam and GMDA assail the correctness of the said judgment E and order of the High Court.

7. We have heard learned counsel for the parties at considerable length. The Urban Land (Ceiling and Regulation) Act, 1999 repealed the Principal Act w.e.f. the date the State adopted the Repeal Act. In terms of a resolution pa_ssed under F clause (2) Article 252 of the Constitutionhthe Repeal Act was adopted by the State of Assam w.e.f. 6t August, 2003. We may at this stage usefully extract Sections 2 and 3 of the Repeal Act which have a direct bearing on the questions that arise for ourdetermination: · . G "2. Repeal ofAct 33of1976- The Urban Land (Ceiling and Regulation) Act, 1976, (hereinafter referred to as the principal Act) is hereby repealed. 3. Saving. - (1) the repeal of the principal Act shall not H affect- STATE OF ASSAM v. BHASKAR JYOTI SARMA & ORS. 1457 ETC. [T. S. THAKUR, J.] (a) the vesting of any vacant land under sub-section A (3) of Section 10, possession of which has been taken over by the State Government dr any person duly authorised by the State Government in this behalf or by the competent authority; (b) the validity of any order granting exemption under B · sub-section (1) of Section 20 or any action taken thereunder, notwithstanding any judgment of any Gourt to the contrary; (c) any payment made to the State Government as a c 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 1O D of the principal Act butpossesslon of which has ~. not been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority; and E (b) any amount has been paid by the State Government with respect to such land then, such land shan not be restored unless the amount paid, if any, has been refunded to the State F Government. " 8. A bare reading of.Section 3 (supra) makes it clear that repeal of the Principal Act does not affect the vesting of any vacant land under sub-section (3) of Section 10, possession whereof has been taken over by the State G ·Government or any person duly authorised by the State Government in that behalf or by the competent authority. In the case at hand, the appellant claims to have taken over the th possession of the surplus land on 7 December, 1991. That H 1458 SUPREME COURT REPORTS [2014] 14 S.C.R. A claim is made entirely on the basis of a certificate of handing over/taking over of possession, relevant portion whereof reads . . as under: "Certificate of handing over/taking over possession B Today on this 7th December, 1991, we took over possession of 70.32 Are of acquired land as scheduled below vide order of the Deputy Commissioner, Kamrup's ULC Case No.343 dated 2-3-91 and as per Assam Gazette notification dated 1: 1-8 7 in the case C No.ULC343/76. Schedule of land

xxx xxx xxx xxx xxx xxx D Received the possession (Taken over possession unilaterally) Sd/-11/egible Given the possession Designation - SK (G) Designation E 7.12.91 Dated Dated 7112 Countersigned Sd/-/1/egible F Circle Officer Guwahati Revenue Circle" 9. Relying upon the above document it was strenuously. argued on behalf of the appellants that. actual physical G possession was taken over from the erstwhile land owner as early as in December, 1991, no matter relevant official record does not bear testimony to any notice having been issued to the land owners in terms of Section 10, sub-section (5) of the Act. It was argued that so long as actual physical possession H had been taken over by the competent authority title to the STATE OF ASSAM v. BHASKAR JYOTI SARMA & ORS. 1459 ETC. [T. S. THAKUR, J.]

land so taken over stood vested absolutely in the State A Government under Section 10(3) and could not be claimed back no matter the Principal Act stood repealed after such vesting had taken place. In support of the contention that actual physical possession had been taken over by the competent authority, the appellant places heavy reliance upon the fact that B challenge to the proceedings under the Act mounted in Writ Petition No.2568 of 1992 by the purchasers of a part of the disputed land had failed right up to this Court and the allotment of a substantial part of the surplus land in favour of the 8 families affirmed. This, according to the appellant, proves c that possession of the surplus land had indeed been taken · over from the erstwhile owner in terms of proceedings held on 7th December, 1991. It was also contended that Bhabadeb Sarma, the erstwhile owner, had remained aloof even when he was a party to the writ petition filed by the purchasers who o had ques~ioned the validity of the order passed by the competent authority including the allotment of the surplus land in favour of third parties. It was urged that the Repeal Act would have no effect whatsoever even when the taking of possession was without notice to the erstwhile owner E especially when the owner had failed to question any such ·take over at the appropriate stage in appropriate proceedings. The challenge mounted by the legal heirs of the deceased erstwhile owner 13 years later was clearly untenable and afterthought. Failure of the land owner to seek redressal against F non- compliance with the statutory requirement of a notice before possession is taken would constitute abandonment of the right of the owner under Section 10 (5) which cannot be resuscitated ·after lapse of such a long period only to take advantage of the Repeal Act. The question whether actual G physical possession of the disputed land had been taken over is in any case a seriously disputed question of fact which could not be adjudicated or determined by the High Court in its writ jurisdiction.

H 1460 SUPREME COURT REPORTS [2014] 14 S.C.R. A 10. Mr. P.K. Goswamy, learned senior counsel, appearing for the respondents, on the other hand, argued that actual physical possession must be proved to have been taken over· by the State Government or by a person duly authorised by the State Government in that behalf or by the competent authority B in order that the saving of clause in the Repeal Act could save any action already taken under the principal Act. Possession of surplus land could, in turn, be taken only by the owher surrendering or delivering possession to the State Government or the persons duly authorised by the State Government. In the c event of failure or refusal of the owner to surrender or deliver the same, possession of the surplus land could be taken forcibly . also but only in accordance with the procedure prescribed. The Scheme of Section 10 does not, according to Mr.

Goswamy, permit taking over of possession by the State o Govemmentorthe authorised person or' the public authority without following the procedure prescribed under Section 10(5), namely, issuing a notice in writing to the person to surrender or deliver the same. Inasmuch as actual physical possession in the case at hand is alleged to have been taken E over without following the said procedure the alleged take over shall be deemed to be non-est in the eye of law atleastforthe purposes of Section 3 of the Repeal Act. Relying upon the decision of this Court in State of Uttar Pradesh v. Hari Ram (2013) 4 SCC 280, it was argued by Mr. Goswamythatthe F procedure prescribed .under Section 10(5) for taking physical possession of the land under Section 10(6) was mandatory and so long as the said procedure was not followed, no possession can be said to have been taken over within the meaning of Section 3 of the Repeal Act.' G 11. Section 3 of the Repeal Act postulates that vesting of any vacant land under sub-section (3) of Section 10, is subject to the condition that possession thereof has been taken over by the competent authority or by the State Government or any . person duly authorised by the State Government. The H STATE OF ASSAM v. BHASKAR JYOTI SAR MA & ORS. 1461 ETC. [T. S. THAKUR, J.]

expression ''possession" used in Section 3 (supra) has been A interpreted to mean "actual physical possession" of the surplus land and not just possession that goes with the vesting of excess land in terms of Section 10(3) of the Act. The question, however, is whether actual physical possession of the land in dispute has been taken over in the case at hand by the competent B authority or by the State Government or an officer authorised in that behalf by the State Government. The case of the appellant is that actual physical possession of the land was taken over on 7th December, .1991 no matter unilaterally and without notice to the erstwhile land owner. That assertion is· c stoutly denied .by the respondents giving rise to seriously disputed question of fact which may not be amenable to a satisfactory determination by the High Court in exercise of.its writ jurisdiction. But assuming that ariy such determination is possible even in proceedings under Article 226 of the o constitution, what needs examination is whether the failure of the Government or the authorised officer or the competent authority to issue a notice to the land owners in terms of Section 10(5) would by itself mean that such dispossession is no dispossession in the eye of law and hence insufficient to attract E Section 3 of the Repeal Act. Our answer to that question is in the negative. We say so because in the ordinary course actual physical possession can be taken from the person in occupation only after notice under Section 10(5) is issued to him to surrender such possession to the State Government, F or the authorised officer or the competent authority. There is enough good sense in that procedure inasmuch. as the need for using force to dispossess a person in possession should ordinarily arise only if the pers_on concerned refuses to cooperate and surrender or deliver possession of the lands G in question. That is the rationale behind Sections 10(5) and 10(6) of the Act. But what would be the position if for any reason t~e competent authority or the Government or the . authorized officer resorts to forcible dispossession of the erstwhile owner even without exploring the possibility of a H

1462 SUPREME COURT REPORTS [2014] 14 S.C.R.

A voluntary surrender or delivery of such possession on demand. Could such use of force vitiate the dispossession itself or would it only amount to an irregularity that would give rise to a cause · of action for the aggrieved owner or the person in possession to seek restoration only to be dispossessed again after issuing B a notice to him. It is this aspect that has to an extent bothered us. The High Court has held that the alleged dispossession . was not preceded by any notice under Section 10(5) of the Act. Assuming that to be the case all that it would mean is that on 7th December, 1991 when the erstwhile'owner was c dispossessed from the land in question, he could have made a grievance based on Section 10(5) and even sought restoration of possession to him no matter he would upon such restoration o'nce again be liable to be evicted under Sections , 10(5) and 10(6) of the Act upon his failure .to deliver or D surrender such possession. In reality therefore unless there was something that was inherently wrong so as to affect the very process of taking over such as the identity of the land or the. boundaries thereof or any other circumstance of a similar ' nature going to the root of the matter hence requiring an E adjudication, a person who had lost his.land by reason of the . ' same being declared surplus under Section 10(3) would not consider it worthwhile to agitate the violation of Section 10(5) .· for he can well understand that even when the Court may uphold his contention that the procedure ought to be followed as F prescribed, it may still be not .enough for him to retain the land forthe authorities could the very next day dispossess him from the same by simply serving a notice under Section 10(5). It would, in that view, be 'an academic exercise for any owner or person in possession to find fault with his dispossession on . G the ground that no notice under Section 10(5) had been served uponhim, ,

· 12. The issue can be viewed from anotheran.gle also. Assuming that a person in .possession cou\d make. a grievance, no matter without much gain in the ultimate analysis, . H '. STATE OF ASSAM v. BHASKAR JYOTI SARMA & ORS. 1463 ETC. [T. S. THAKUR, J.] · the question is whether such grievance could be made long A · after the alleged violation of Section 10(5). If actual physical pgssession was taken ov~r from the ~rstwhile land owner on 7 December, 1991 as 1s alleged in the present case any grievance based on Section 10(5) ought to have been made within a reasonable time of such dispossession. lfthe owner B did not do so, forcible taking over of possession would acquire legitimacy by sheer lapse of time. In any such situation the owner or the person in possession must be deemed to have waived his rig ht under Section 10(5) of the Act. Any other view would, in our opinion, give a licence to a litigant to make a C gri~vance not because he has suffered any real prejudice that needs to be redressed but only because the fortuitous circumstance of a Repeal Act tempted him to raise the issue regarding his dispossession being in violation ofthe prescribed. procedure. · D

13. Reliance was placed by the respondents upon the decision of this Court in Hari Ram's case (supra). That decision does not, in our view, lend much assistance to the respondents. We say so, because this Court was in Hari Ram's case (supra) considering whether the word 'may' E appearing in Section 10(5) gave to the competent authority the discretion to issue or not to issue a notice before faking physical possession of the land in question under Section 10(6). The question whether breach of Section 10(5) and possible dispossession without notice would vitiate the act of F dispossession itself or render it non est in the eye of law did not fall for consideration in that case. In our opinion, what Section 10(5) prescribes is an ordinary and logical course of action that ought to be followed before the authorities decided to use force to dispossess the occupant under Section 10(6). G In the case at hand if the appellant's version regarding . dispossession of the erstwhile owner in December 1991 is correct, the fact that such dispossession was without a notice under Section 10(5) will be of no consequence a.nd would not H 14p4. SUPREME COURT REPORTS (2014] 14 S.C.R. A vitiate or obliterate the act of taking possession for the · purposes of Section 3 of the Repeal Act. That is because Bhabadeb Sarma-erstwhile owner had not made any grievance based on breach of Section 10(5) at any stage during his ·lifetime implying thereby that he had waived his right to d.o B so.

14. Mr. Goswamy drew our attention to a decision of thisCourt in State of Gujarat and Anr. V. Gyanaba Dilavarsinh Jadega (2013) 11 SCC 486 to argue that a . C Writ Court could also examine the questior:i of dispossession as was the position in that case which too arose out of a proceeding under the Urban Land (Ceiling and Regulatiqn) · Act. This Court in that case remanded the matter back to the High Court to determine the question whether possession of the land had been taken over before the Repeal Act 6ame into D force. In the instant case the Single bench of the High Court . had while dismissing the writ petition filed by the respondents relied upon the fact that the writ petition filed by the purchasers of a portion of the surplus land had been dismissed and the allotment of a portion of the surplus land in favour of separate · E family affirmed not only by the Division Bench of the High Court but also by this Court in a further appeal. The possession of land purports to have been taken overJiom the erstwhile owner in terms of proceedings dated 7th December, 1991. Inference drawn appears to be that ifallotment of substantial part of the F surplus land to the .third parties has .been affirmed, it only means that possession was indeed taken over for otherwise there was no question of allotting the land to third parties nor was there any question of such allottee-occupants using the same. We cannot, however, ignore the fact that the question G of dispossession of the owner or the transferee was never agitated or determined by the High Court in the writ petition ti.led by the transferee. We could appreciate the argument if the issue regarding dispossession haa been' raised and determined by the Courts in, the previo'us litigation. That was, H . I . ,

STATE OF ASSAM v. BHASKAR JYOTI SARMA& ORS. 1465 . ETC. [T. S. THAKUR, J.] however, not so, apparently, because the question of A dispossession was not relevant in the proceedings initiated by the transferees who were challenging the vesting order on . the ground of their having purchased the surplus land from the · owner. Thafattempt failed as the Court found the sale in their favour to be void. The question of dispossession relevant to B Section 3 of the Repeal Act thus riever arose for consideration in those proceedings. It will, therefore, be much too farfetched an inference to provide a sound basis for either the High Court or for us to hold that dismissal of the writ petition filed by the purchasers in the above circumstances should itself support a c finding that possession had indeed been taken over. Having said that we must hasten to add that even the Division Bench haswhile reversing the view taken by the single bench not recorded any specific finding to the effect that possession had actually continued with the erstwhile owner even after the D vesting gf the !<Jnd under Section 10(3) and the proceedings dated 7 December, 1991.

15. In support of the contention that the respondents are even today in actual physical possession of the land in question reliance is placed upon certain electricity bills and bills paid · E for the telephone connection that stood in the name of one Mr. Sanatan Baishya. It was contended that said Mr. Sanatan Baishya was none other than the caretaker of the property of tne respondents. There is, however, nothing on record to substantiate that assertion. The telephone bills and electricity F · bills also relate to the period from 2001 onwards only. There is nothing on record before us nor was anything placed before the High Court to suggest that between 7th December, 1991 . till the date the land in question was allotted to GMDA in December, 2003 the owner or his legal heirs after his demise G had continued to be in possession. All that we have is rival claims of tlie parties based on affidavits in support thereof. We repeatedly asked learned counsel for the parties whether they can, upon remand on the analogy of the decision in the H 1466 SUPREME COURT REPORTS [2014]_ 14 S.C.R.

A case of Gyanaba Dilavarsinh Jadega (supra), adduce any . documentary evidence that Would en'able the High Court to record a finding in regard to actual possession. They were unable to, point out or refer to any such evidence. That being so the question wheth.er actual physical possession was taken B over remains a seriously disputed question of fact which is not amenable to a satisfactory determination by the High Court in proceedings under Article 226 of the Constitution no matter the High Court may in its discretion in certain situations upon such determination. Remand to the High Court to have a finding c on the question of dispossession, therefore, does not appear to us to be a viable solution.

16. Confronted with the above position, Mr. Goswamy made a suggestion. He urged that having regard to the fact that Urban Land (Ceiling and Regulation) Act, 1976 has been D repealed as. also the factthat no notice under Section 10(5) was ever issued any proceedings meant to determine whether actual dispossession had or had not taken place, whether by the High Court or any Civil Court is bound to take another decade if not more. The respondent would, therefore, be happy E and satisfied if the order passed by the High Court is upheld except to the extent of land to be restored to the respondents equivalent to 8.03 Are (equivalent to 3 Kathas) which exter:lt has been allotted in favour of Guwahati Metropolitan Development Authority. The appellant has responded to the· F said offer of the respondents arid pointed out that out of the eight families in whose favour the surplus area was settled in the year 1992, four families have been allotted· disputed land in questing measuring 1 bigha, 4 Kathas, 16 laches. John lngti Katha one of the respondents in these appeals is G one of such allottees of ihe settled area. The affidavit further states that settlement of .8.03 'Are' (equivalent to 3 Kathas) was made in 2003 in favour of GMDA in the yeaF 2003 and that restoration of the balance land i.e. 1 bigha, 4 Kathas, 16 laches to respondents 1 to 3 will affect the settlement already H STATE OF ASSAM v. BHASKAR JYOTI SARMA &. ORS. 1467 ETC. [T. S. THAKUR, J.]

made in favour of.John lngti Katharand his wife, late Bansidhar. A. Duara and his wife, Sri Jyotimoyh Chakrabarty and his wife and Sri P.S. Bhatfacharjee and his wife. The affidavit further give details of the settlement made in resp~ct of the dispute· extent of land in favour of GMDA and the four families · mentionedabove. B 17. From the affidavit filed after the conclusion of the argument in this case, it appears that the disputed extent of land i.e. 1 bigha, 4 Kathas, 16 laches also stands fully settled in favour of allottees. Such being the case the offer made by Shri Goswamy does not appear to be a feasible solution at C this stage particularly when the allotments made are not in . question nor have the allottees been impleaded as party respondents. 18. In the result, these appeals succeed and are, hereby, 0 allowed. The order passed by the. Division Bench of the High Court is set aside and that passed by the Single Bench of that Court affirmed. The parties are left to bear their own costs. E Kalpana K. Tripathy Appea.ls allowed.

[2014] 14 S.C.R. 1451 STATE OF ASSAM A v. · BHASKAR JYOTI SARMA & ORS. ETC. (Civil Appeal No. 10565 of 2014) B NOVEMBER 27, 2014 [T. S. THAKUR AND R. BANUMATHI, JJ.] Urban Land (Ceiling and Regulation) Act, 1999- s. 3-Land in question declared ceiling surplus under Urban Land (Ceiling and Regulation) Act, 1976 -After declaration, sale C , of the surplus land by (he owner - Possession of the land taken over by the Government- Certain portion of the surplus land allotted to 8 families - The case of purcflasers challenging the vesting of land with Government, dismissed and attained finality - Remaining surplus land allotted to D Development Authority - In the meantime repeal of 1976 Act by the 1999 Act and adoption thereof by the State in August 2003 - Allotment to Authority challenged by the descendants of the owner of the land - Held: repeal of the. principal Act does not affect the vesting of any vacant land u/ E s. 10(3), possession whereof has been taken by the· Government - In the present case possession·was taken prior to adoption of the Repeal Act by the State- Urban Land (Ceiling and Regulation) Act, 1976- s. 10.

F Allowing the appeals, the Court HELD: 1. Section 3 of Urban Land (Ceiling and Regulation) Act, 1999 (Repeal Act) makes it clear that repeal of the Principal Act i.e._Urban Land (Ceiling and Regulation) Act, 1976 does not affect the vesting of any G vacant land under sub-section (3) of Section 10, possession whereof has been taken over by the State Government or any person duly authorised by the State Government in that behalf or by the competent authority. H 1451 1452 SUPREME COURT REPORTS [2014j 14 S.C.R.

A In the present case, the appellant-State claims to have taken over the possession of the surplus land prior to adoption of the Repeal Act.· [P,ara 8][1457-G-H] 2 .. The failure of the Government or the authorised officer or the competent authority to issue a notice to B the land-owners in terms of Section 10(5) would not by itself mean that such dispossession is no dispossession in the eye of law and hence insufficient to attract Section · 3 of the: Repeal Act. In the present case, ifthe appellant's version regarding dispossession of the erstwhile owner C in December 1991 is correct, the fact that such dispi>ssession was without a notice under Section 10(5) will be .of no consequence and would not vitiate or obliterate the act of taking possession for the purposes of Section 3 of the Repeal Act. That is because the D erstwhile owner had not made any grievance based on breach of Section 10(5) at any stage during his lifetime implying theref>y that he had waived his right to do so. [Paras 11and13][1461-0-E; 1463-G-H] State of Uttar Pradesh v. Hari Ram 2013 (4) E SCC 280 : 2013 (2) SCR 301 - distinguished . . ~.. State of Gujarat and Anr. v. Gyanaba Di/avarsinh . J8,dega 2013 (11) sec 486- referred to.

3;:~The. question of dispossession of the owner or F .. the trarisferee was never agitated or determined by the High C~urt in the writ petition filed by the transferee. It . also does not appear that the respondent would adduce any documentary evidence before the High Court after this case'is remanded and would enable the High Court G to recQrd ~finding in regard to actual possession. That being so;; the question whether actual physical possessio11 was taken over remains a seriously disputed· question of fact which is not amenable to a satisfactory determination by the High Court in proceedings under ·H STATE OF ASSAM v. BHASKAR JYOTI SAR MA & ORS. 1453 ETC. Article 226 of the Constitution. Remand to the l'.figh Court A to have a finding on the question of dispossession, therefore, does not appear to be a viable solution. [Paras 14 and 15)[1464-G; 1466-A-C]

4. The alternate plea of the respondent that the order passed by the High Court is upheld except to the B extent of land to be restored to the respondents ·equivalent to the extent which was ·allotted in favour of Guwahati Metropolitan Development Authority is not acceptable. Out of the eight families in whose favour the surplus area was settled in the year 1992, four families C have been allotted disputed land. Such being the case the offer made by the respondent does not appear to be a feasible solution at this stage particularly when the allotments made are not in question nor have the allottees been impleaded as party respondents. [Paras 16 and D 17][1466-E-G; 1467-C] Case Law Reference 2013 (2) SCR 301 distinguished Para 12 E 2013 (11) sec 486 referred to Para 15 CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10565 of 2014. From the Judgment and Order dated 21-09-2010 of the High Court of Gauhati in WritAppeal No. 202 of 2007. F WITH Civil Appeal No. 10566 and 10567 of 2014 P. Vishwanathan Shetty, Dhruv Mehta, P.K. Goswami, Sr. Advs., Avijit Roy (For M/s Corporate Law Group), Boboy G Potsangbam, Khwairakpam Nobin Singh, Milly Hazarika, Manish Goswami, Rameshwar Prasad Goyal, Parthiv K. Goswami, Yashvardhan Singh, Ms. Charu Mathur, Ms. Diksha Rai, Advs. for the appearing parties .. H 1454 SUPREME COURT REPORTS (2014) 14 S.C.R. A The Judgment of the Court. was delivered by T. S. THAKUR, J. 1. Leave granted.

2. These appeals by special leave are directed against an order dated 21st September, 2010 passed by a Division Bench of the High Court of Assam at Guahati whereby Writ 8 Appeal No.202 of 2007 filed by the respondents herein has been allowed, order dated 13th April, 2007 passed by a learned. Single Judge of that Court set aside and the respondents held entitled to restoration of the possession of the land in dispute. c 3. Late Bhabadeb Sarma, father of the respondents, was recorded as a Pattadar of a ·plot of land measuring 73.26 Ares equivalent to 1 Bigha, 4 Kathas and 16 Lachas, covered by K.P. Patta No.493 (old)/594 (new) in Dag No.1008(old) bf· Sahar Ulubari, in Mouza Ulubari, Guahati. With the adoption-D of Urban Land (Ceiling and Regulation)Act, 1976 by the State of Assam, the said Shri Bhabadev Sarma submitted returns under Section 6 ofthesaidActon 19th October, 1976. In Urban Land Ceiling Case No.343 of1976 initiated by the District Collector against the said Shri Sarma, a draft statement under E .Section 8(3) was served upon the owner in regard to the land aforementioned which was, according to the draft statement, beyond the ceiling limit of 2000 sq. meters permissible under. the Act. Upon consideration of the objections raised by the owner to the said draft statement, a final statement under F Section 9 was prepared and published on 3rd September, 1982 declaring an area measuring 7981.48 Sq. meters to be in excess of the permissible limit. A notification dated. 15th May, 1984 under Section 10(1) followed declaring the vacant lana aforementioned to be in excess of the ceiling limit. G 4. In November 1984, the owner appears to have sold a major portion of the land in question to Mr. Kamala Kanta Ozah and five others in terms of different instruments of sale executed in their favour. A notification under Section 10(3) was st H published on 1 January, 1987 and the land in question STATE OF ASSAM v. BHASKAR JYOTI SARMA & ORS. 1455

ETC. [T. S. THAKUR, J.] declared Ceiling Surplus Government land. Apart of the said A land was on that basis allotted in favour of 8 families in terms · of land policy of the Government while the remaining area measuring 8.03 Ares was retained by the Government. It is not in dispute that the land record was also corrected by deleting the name of owner Bhabadeb Sarma as the Pattadar. B It is also not in dispute that no land revenue was collected from the erstwhile owners post vesting of the land in the State under Section 10(3) of the Act.

5. The appellant's case is that possession of the entire surplus land was taken over by the Revenue Authority on 7th C December, 1992. This did not, however, deter Kamala Kanta Ozah and others who had purchased the land either from filing an appeal against the order of vesting or challenging the proceedings in Writ Petition (Civil Writ Case No.2568of1992) filed before the High Court. Both these attempts made by the D purchasers of the land failed with the dismissal of the appeal by the Secretary to the Government of Assam, Department of· Revenue and the dismissal of Writ Petition No.2568 of 1992 by the High Court in terms of order dated 21st May, 2002. The High Court, it is pertinent to mention not only upheld the order E passed by the Collector-cum- Competent Authority but also the allotment of a substantial portion of the land in favour of 8 different families eligible for such allotment. Writ Appeal No.419 of 2002 filed by Kamala Kanta Ozah and others against the order passed by the Single Judge also came to be dismissed F by the Division Bench of the High Court by an order dated 2olh December, 2002. Special leave petition filed against the said order too failed and was dismissed by this Court on 8th August, 2003.

6. With the challenge to the proceedings under the Act G concluding in the manner indicated above, the Government of Assam by an order dated 27th November, 2003 allotted an extent of 8.03 Are to Guwahati Metropolitan Development Authority (GMDA) for construction of an office building for H 1456 SUPREME COURT REPORTS [2014] 14,S.C.R.

A the said authority. In the meantime on 12th December, 2003 ' ' the Urban Land (Ceiling and Regulation) Repeal Act was notified which came into force in the State of Assam w.e.f. 5th August, 2003, The appellant's case is that possession of the allotted land was handed over to GMDAon 25th December, B 2003 which action too came under challenge at the instance of the respondents in Writ Petition No.2519 of 2004, who stepped into the shoes of Bhabadeb Sarma upon his death on 3rd October, 1997. ASingle Bench of t,he High Court of Assam dismissed the writ petition upholding the allotment of c the land to GMDA and declined the prayer for restoration of the possession in favour of the writ petitioners-respondents herein. Aggrieved by the said order, the respondents filed Writ Appeal No.202 of 2007 before the High Court which was allowed by a Division Bench of the High Court by the order D impugned in this appeal. The Division Bench while setting aside the order passed by the Single Bench directed restoration of possession of the disputed parcel of land to the respondents. The present appeals filed by the State of Assam and GMDA assail the correctness of the said judgment E and order of the High Court.

7. We have heard learned counsel for the parties at considerable length. The Urban Land (Ceiling and Regulation) Act, 1999 repealed the Principal Act w.e.f. the date the State adopted the Repeal Act. In terms of a resolution pa_ssed under F clause (2) Article 252 of the Constitutionhthe Repeal Act was adopted by the State of Assam w.e.f. 6t August, 2003. We may at this stage usefully extract Sections 2 and 3 of the Repeal Act which have a direct bearing on the questions that arise for ourdetermination: · . G "2. Repeal ofAct 33of1976- The Urban Land (Ceiling and Regulation) Act, 1976, (hereinafter referred to as the principal Act) is hereby repealed. 3. Saving. - (1) the repeal of the principal Act shall not H affect- STATE OF ASSAM v. BHASKAR JYOTI SARMA & ORS. 1457 ETC. [T. S. THAKUR, J.] (a) the vesting of any vacant land under sub-section A (3) of Section 10, possession of which has been taken over by the State Government dr any person duly authorised by the State Government in this behalf or by the competent authority; (b) the validity of any order granting exemption under B · sub-section (1) of Section 20 or any action taken thereunder, notwithstanding any judgment of any Gourt to the contrary; (c) any payment made to the State Government as a c 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 1O D of the principal Act butpossesslon of which has ~. not been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority; and E (b) any amount has been paid by the State Government with respect to such land then, such land shan not be restored unless the amount paid, if any, has been refunded to the State F Government. " 8. A bare reading of.Section 3 (supra) makes it clear that repeal of the Principal Act does not affect the vesting of any vacant land under sub-section (3) of Section 10, possession whereof has been taken over by the State G ·Government or any person duly authorised by the State Government in that behalf or by the competent authority. In the case at hand, the appellant claims to have taken over the th possession of the surplus land on 7 December, 1991. That H 1458 SUPREME COURT REPORTS [2014] 14 S.C.R. A claim is made entirely on the basis of a certificate of handing over/taking over of possession, relevant portion whereof reads . . as under: "Certificate of handing over/taking over possession B Today on this 7th December, 1991, we took over possession of 70.32 Are of acquired land as scheduled below vide order of the Deputy Commissioner, Kamrup's ULC Case No.343 dated 2-3-91 and as per Assam Gazette notification dated 1: 1-8 7 in the case C No.ULC343/76. Schedule of land

xxx xxx xxx xxx xxx xxx D Received the possession (Taken over possession unilaterally) Sd/-11/egible Given the possession Designation - SK (G) Designation E 7.12.91 Dated Dated 7112 Countersigned Sd/-/1/egible F Circle Officer Guwahati Revenue Circle" 9. Relying upon the above document it was strenuously. argued on behalf of the appellants that. actual physical G possession was taken over from the erstwhile land owner as early as in December, 1991, no matter relevant official record does not bear testimony to any notice having been issued to the land owners in terms of Section 10, sub-section (5) of the Act. It was argued that so long as actual physical possession H had been taken over by the competent authority title to the STATE OF ASSAM v. BHASKAR JYOTI SARMA & ORS. 1459 ETC. [T. S. THAKUR, J.]

land so taken over stood vested absolutely in the State A Government under Section 10(3) and could not be claimed back no matter the Principal Act stood repealed after such vesting had taken place. In support of the contention that actual physical possession had been taken over by the competent authority, the appellant places heavy reliance upon the fact that B challenge to the proceedings under the Act mounted in Writ Petition No.2568 of 1992 by the purchasers of a part of the disputed land had failed right up to this Court and the allotment of a substantial part of the surplus land in favour of the 8 families affirmed. This, according to the appellant, proves c that possession of the surplus land had indeed been taken · over from the erstwhile owner in terms of proceedings held on 7th December, 1991. It was also contended that Bhabadeb Sarma, the erstwhile owner, had remained aloof even when he was a party to the writ petition filed by the purchasers who o had ques~ioned the validity of the order passed by the competent authority including the allotment of the surplus land in favour of third parties. It was urged that the Repeal Act would have no effect whatsoever even when the taking of possession was without notice to the erstwhile owner E especially when the owner had failed to question any such ·take over at the appropriate stage in appropriate proceedings. The challenge mounted by the legal heirs of the deceased erstwhile owner 13 years later was clearly untenable and afterthought. Failure of the land owner to seek redressal against F non- compliance with the statutory requirement of a notice before possession is taken would constitute abandonment of the right of the owner under Section 10 (5) which cannot be resuscitated ·after lapse of such a long period only to take advantage of the Repeal Act. The question whether actual G physical possession of the disputed land had been taken over is in any case a seriously disputed question of fact which could not be adjudicated or determined by the High Court in its writ jurisdiction.

H 1460 SUPREME COURT REPORTS [2014] 14 S.C.R. A 10. Mr. P.K. Goswamy, learned senior counsel, appearing for the respondents, on the other hand, argued that actual physical possession must be proved to have been taken over· by the State Government or by a person duly authorised by the State Government in that behalf or by the competent authority B in order that the saving of clause in the Repeal Act could save any action already taken under the principal Act. Possession of surplus land could, in turn, be taken only by the owher surrendering or delivering possession to the State Government or the persons duly authorised by the State Government. In the c event of failure or refusal of the owner to surrender or deliver the same, possession of the surplus land could be taken forcibly . also but only in accordance with the procedure prescribed. The Scheme of Section 10 does not, according to Mr.

Goswamy, permit taking over of possession by the State o Govemmentorthe authorised person or' the public authority without following the procedure prescribed under Section 10(5), namely, issuing a notice in writing to the person to surrender or deliver the same. Inasmuch as actual physical possession in the case at hand is alleged to have been taken E over without following the said procedure the alleged take over shall be deemed to be non-est in the eye of law atleastforthe purposes of Section 3 of the Repeal Act. Relying upon the decision of this Court in State of Uttar Pradesh v. Hari Ram (2013) 4 SCC 280, it was argued by Mr. Goswamythatthe F procedure prescribed .under Section 10(5) for taking physical possession of the land under Section 10(6) was mandatory and so long as the said procedure was not followed, no possession can be said to have been taken over within the meaning of Section 3 of the Repeal Act.' G 11. Section 3 of the Repeal Act postulates that vesting of any vacant land under sub-section (3) of Section 10, is subject to the condition that possession thereof has been taken over by the competent authority or by the State Government or any . person duly authorised by the State Government. The H STATE OF ASSAM v. BHASKAR JYOTI SAR MA & ORS. 1461 ETC. [T. S. THAKUR, J.]

expression ''possession" used in Section 3 (supra) has been A interpreted to mean "actual physical possession" of the surplus land and not just possession that goes with the vesting of excess land in terms of Section 10(3) of the Act. The question, however, is whether actual physical possession of the land in dispute has been taken over in the case at hand by the competent B authority or by the State Government or an officer authorised in that behalf by the State Government. The case of the appellant is that actual physical possession of the land was taken over on 7th December, .1991 no matter unilaterally and without notice to the erstwhile land owner. That assertion is· c stoutly denied .by the respondents giving rise to seriously disputed question of fact which may not be amenable to a satisfactory determination by the High Court in exercise of.its writ jurisdiction. But assuming that ariy such determination is possible even in proceedings under Article 226 of the o constitution, what needs examination is whether the failure of the Government or the authorised officer or the competent authority to issue a notice to the land owners in terms of Section 10(5) would by itself mean that such dispossession is no dispossession in the eye of law and hence insufficient to attract E Section 3 of the Repeal Act. Our answer to that question is in the negative. We say so because in the ordinary course actual physical possession can be taken from the person in occupation only after notice under Section 10(5) is issued to him to surrender such possession to the State Government, F or the authorised officer or the competent authority. There is enough good sense in that procedure inasmuch. as the need for using force to dispossess a person in possession should ordinarily arise only if the pers_on concerned refuses to cooperate and surrender or deliver possession of the lands G in question. That is the rationale behind Sections 10(5) and 10(6) of the Act. But what would be the position if for any reason t~e competent authority or the Government or the . authorized officer resorts to forcible dispossession of the erstwhile owner even without exploring the possibility of a H

1462 SUPREME COURT REPORTS [2014] 14 S.C.R.

A voluntary surrender or delivery of such possession on demand. Could such use of force vitiate the dispossession itself or would it only amount to an irregularity that would give rise to a cause · of action for the aggrieved owner or the person in possession to seek restoration only to be dispossessed again after issuing B a notice to him. It is this aspect that has to an extent bothered us. The High Court has held that the alleged dispossession . was not preceded by any notice under Section 10(5) of the Act. Assuming that to be the case all that it would mean is that on 7th December, 1991 when the erstwhile'owner was c dispossessed from the land in question, he could have made a grievance based on Section 10(5) and even sought restoration of possession to him no matter he would upon such restoration o'nce again be liable to be evicted under Sections , 10(5) and 10(6) of the Act upon his failure .to deliver or D surrender such possession. In reality therefore unless there was something that was inherently wrong so as to affect the very process of taking over such as the identity of the land or the. boundaries thereof or any other circumstance of a similar ' nature going to the root of the matter hence requiring an E adjudication, a person who had lost his.land by reason of the . ' same being declared surplus under Section 10(3) would not consider it worthwhile to agitate the violation of Section 10(5) .· for he can well understand that even when the Court may uphold his contention that the procedure ought to be followed as F prescribed, it may still be not .enough for him to retain the land forthe authorities could the very next day dispossess him from the same by simply serving a notice under Section 10(5). It would, in that view, be 'an academic exercise for any owner or person in possession to find fault with his dispossession on . G the ground that no notice under Section 10(5) had been served uponhim, ,

· 12. The issue can be viewed from anotheran.gle also. Assuming that a person in .possession cou\d make. a grievance, no matter without much gain in the ultimate analysis, . H '. STATE OF ASSAM v. BHASKAR JYOTI SARMA & ORS. 1463 ETC. [T. S. THAKUR, J.] · the question is whether such grievance could be made long A · after the alleged violation of Section 10(5). If actual physical pgssession was taken ov~r from the ~rstwhile land owner on 7 December, 1991 as 1s alleged in the present case any grievance based on Section 10(5) ought to have been made within a reasonable time of such dispossession. lfthe owner B did not do so, forcible taking over of possession would acquire legitimacy by sheer lapse of time. In any such situation the owner or the person in possession must be deemed to have waived his rig ht under Section 10(5) of the Act. Any other view would, in our opinion, give a licence to a litigant to make a C gri~vance not because he has suffered any real prejudice that needs to be redressed but only because the fortuitous circumstance of a Repeal Act tempted him to raise the issue regarding his dispossession being in violation ofthe prescribed. procedure. · D

13. Reliance was placed by the respondents upon the decision of this Court in Hari Ram's case (supra). That decision does not, in our view, lend much assistance to the respondents. We say so, because this Court was in Hari Ram's case (supra) considering whether the word 'may' E appearing in Section 10(5) gave to the competent authority the discretion to issue or not to issue a notice before faking physical possession of the land in question under Section 10(6). The question whether breach of Section 10(5) and possible dispossession without notice would vitiate the act of F dispossession itself or render it non est in the eye of law did not fall for consideration in that case. In our opinion, what Section 10(5) prescribes is an ordinary and logical course of action that ought to be followed before the authorities decided to use force to dispossess the occupant under Section 10(6). G In the case at hand if the appellant's version regarding . dispossession of the erstwhile owner in December 1991 is correct, the fact that such dispossession was without a notice under Section 10(5) will be of no consequence a.nd would not H 14p4. SUPREME COURT REPORTS (2014] 14 S.C.R. A vitiate or obliterate the act of taking possession for the · purposes of Section 3 of the Repeal Act. That is because Bhabadeb Sarma-erstwhile owner had not made any grievance based on breach of Section 10(5) at any stage during his ·lifetime implying thereby that he had waived his right to d.o B so.

14. Mr. Goswamy drew our attention to a decision of thisCourt in State of Gujarat and Anr. V. Gyanaba Dilavarsinh Jadega (2013) 11 SCC 486 to argue that a . C Writ Court could also examine the questior:i of dispossession as was the position in that case which too arose out of a proceeding under the Urban Land (Ceiling and Regulatiqn) · Act. This Court in that case remanded the matter back to the High Court to determine the question whether possession of the land had been taken over before the Repeal Act 6ame into D force. In the instant case the Single bench of the High Court . had while dismissing the writ petition filed by the respondents relied upon the fact that the writ petition filed by the purchasers of a portion of the surplus land had been dismissed and the allotment of a portion of the surplus land in favour of separate · E family affirmed not only by the Division Bench of the High Court but also by this Court in a further appeal. The possession of land purports to have been taken overJiom the erstwhile owner in terms of proceedings dated 7th December, 1991. Inference drawn appears to be that ifallotment of substantial part of the F surplus land to the .third parties has .been affirmed, it only means that possession was indeed taken over for otherwise there was no question of allotting the land to third parties nor was there any question of such allottee-occupants using the same. We cannot, however, ignore the fact that the question G of dispossession of the owner or the transferee was never agitated or determined by the High Court in the writ petition ti.led by the transferee. We could appreciate the argument if the issue regarding dispossession haa been' raised and determined by the Courts in, the previo'us litigation. That was, H . I . ,

STATE OF ASSAM v. BHASKAR JYOTI SARMA& ORS. 1465 . ETC. [T. S. THAKUR, J.] however, not so, apparently, because the question of A dispossession was not relevant in the proceedings initiated by the transferees who were challenging the vesting order on . the ground of their having purchased the surplus land from the · owner. Thafattempt failed as the Court found the sale in their favour to be void. The question of dispossession relevant to B Section 3 of the Repeal Act thus riever arose for consideration in those proceedings. It will, therefore, be much too farfetched an inference to provide a sound basis for either the High Court or for us to hold that dismissal of the writ petition filed by the purchasers in the above circumstances should itself support a c finding that possession had indeed been taken over. Having said that we must hasten to add that even the Division Bench haswhile reversing the view taken by the single bench not recorded any specific finding to the effect that possession had actually continued with the erstwhile owner even after the D vesting gf the !<Jnd under Section 10(3) and the proceedings dated 7 December, 1991.

15. In support of the contention that the respondents are even today in actual physical possession of the land in question reliance is placed upon certain electricity bills and bills paid · E for the telephone connection that stood in the name of one Mr. Sanatan Baishya. It was contended that said Mr. Sanatan Baishya was none other than the caretaker of the property of tne respondents. There is, however, nothing on record to substantiate that assertion. The telephone bills and electricity F · bills also relate to the period from 2001 onwards only. There is nothing on record before us nor was anything placed before the High Court to suggest that between 7th December, 1991 . till the date the land in question was allotted to GMDA in December, 2003 the owner or his legal heirs after his demise G had continued to be in possession. All that we have is rival claims of tlie parties based on affidavits in support thereof. We repeatedly asked learned counsel for the parties whether they can, upon remand on the analogy of the decision in the H 1466 SUPREME COURT REPORTS [2014]_ 14 S.C.R.

A case of Gyanaba Dilavarsinh Jadega (supra), adduce any . documentary evidence that Would en'able the High Court to record a finding in regard to actual possession. They were unable to, point out or refer to any such evidence. That being so the question wheth.er actual physical possession was taken B over remains a seriously disputed question of fact which is not amenable to a satisfactory determination by the High Court in proceedings under Article 226 of the Constitution no matter the High Court may in its discretion in certain situations upon such determination. Remand to the High Court to have a finding c on the question of dispossession, therefore, does not appear to us to be a viable solution.

16. Confronted with the above position, Mr. Goswamy made a suggestion. He urged that having regard to the fact that Urban Land (Ceiling and Regulation) Act, 1976 has been D repealed as. also the factthat no notice under Section 10(5) was ever issued any proceedings meant to determine whether actual dispossession had or had not taken place, whether by the High Court or any Civil Court is bound to take another decade if not more. The respondent would, therefore, be happy E and satisfied if the order passed by the High Court is upheld except to the extent of land to be restored to the respondents equivalent to 8.03 Are (equivalent to 3 Kathas) which exter:lt has been allotted in favour of Guwahati Metropolitan Development Authority. The appellant has responded to the· F said offer of the respondents arid pointed out that out of the eight families in whose favour the surplus area was settled in the year 1992, four families have been allotted· disputed land in questing measuring 1 bigha, 4 Kathas, 16 laches. John lngti Katha one of the respondents in these appeals is G one of such allottees of ihe settled area. The affidavit further states that settlement of .8.03 'Are' (equivalent to 3 Kathas) was made in 2003 in favour of GMDA in the yeaF 2003 and that restoration of the balance land i.e. 1 bigha, 4 Kathas, 16 laches to respondents 1 to 3 will affect the settlement already H STATE OF ASSAM v. BHASKAR JYOTI SARMA &. ORS. 1467 ETC. [T. S. THAKUR, J.]

made in favour of.John lngti Katharand his wife, late Bansidhar. A. Duara and his wife, Sri Jyotimoyh Chakrabarty and his wife and Sri P.S. Bhatfacharjee and his wife. The affidavit further give details of the settlement made in resp~ct of the dispute· extent of land in favour of GMDA and the four families · mentionedabove. B 17. From the affidavit filed after the conclusion of the argument in this case, it appears that the disputed extent of land i.e. 1 bigha, 4 Kathas, 16 laches also stands fully settled in favour of allottees. Such being the case the offer made by Shri Goswamy does not appear to be a feasible solution at C this stage particularly when the allotments made are not in . question nor have the allottees been impleaded as party respondents. 18. In the result, these appeals succeed and are, hereby, 0 allowed. The order passed by the. Division Bench of the High Court is set aside and that passed by the Single Bench of that Court affirmed. The parties are left to bear their own costs. E Kalpana K. Tripathy Appea.ls allowed.