2026 INSC 21 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6130 OF 2016

DALSUKHBHAI BACHUBHAI SATASIA

& OTHERS …APPELLANTS

VERSUS

STATE OF GUJARAT & O THERS …RESPONDENTS

J U D G M E N T

NAGARATHNA, J.

This civil appeal assails the impugned judgment dated

23.07.2014 passed by the High Court of Gujarat at Ahmedabad in

LPA No.2024/2010 in Special Civil Application No.533/2009

wherein the appeal filed by the appellants herein was dismissed.

Factual Backdrop:

2. The facts of the case are that the land in question is

admeasuring 9303 square metres and bearing Survey No. 339 of

2

Town Planning Scheme No.4, Final Plot Nos.9A and 9B of Village

Katargam, Surat, Gujarat (for short, “Survey 339”). According to

the appellants, the said land belonged to one Nathubhai

Ranchhodbhai, upon whose death in the year 1933, his heir

Kuberbhai Nathubhai became its true owner and occupier.

2.1 On 17.02.1976, the Urban Land (Ceiling and Regulation) Act,

1976 (“ULC Act”, for the sake of convenience) came into force.

Section 6(1) of the said Act directed every person holding vacant

land in excess of the ceiling limit to file a statement specifying the

location, extent, value and such other particulars of all vacant

lands held by him. Accordingly, on 12.08.1976, Kuberbhai

Nathubhai filed a Form under Section 6(1) of the ULC Act declaring

the following lands of Katargam, Surat under his holding:

Sl.

No.

Survey No.

Area (square

metre)

Type of Use

1. 470/1 paiki 23168 Agricultural

2. 472 paiki 3035 Agricultural

3. 472 paiki 11331 Agricultural

4.

Residence House No.

1355 in Ward No. 15

111-484 Residential

3

2.2 Thereafter, on 18.02.1980, the Competent Authority under

the ULC Act (for short, “Competent Authority-I”) passed an order

holding that lands bearing Survey Nos. 479 and 472/p were exempt

under Section 21 of the ULC Act, which stated that excess vacant

land shall not be treated as excess in certain cases. The order also

held that the remaining land of Survey No.339 was within the

ceiling limit, so there was “no excess land” being held by the family

members of Kuberbhai Nathubhai. The respondents contend ed

that the form filled earlier under Section 6(1) was not processed and

was kept pending.

2.3 Thereafter, one Khodidas Kanjibhai Patel, the organiser of

Sardar Hira Udhyog Sahakari Mandali Ltd. (for short, “the Society”)

purchased the lands of Survey No.339 at a public auction held by

the Special Recovery Officer on 28.04.1981. By order dated

28.05.1981, the officer confirmed the auction, and directed that the

name of the Society be entered in the records of rights. Accordingly,

the name of the Society was entered in the revenue records by

Mutation Entry No.7068 on 16.05.1983. Thereafter, Khodi das

Kanjibhai Patel obtained Construction Permission (for short, “Raja

4

Chitthi”) on 13.12.1983 from the Surat Municipal Corporation for

constructing industrial units for the Society. Khodidas Patel then

issued Possession Receipts (for short, “Kabja Receipts”) to multiple

sub-plot holders, the appellants herein, who have remained in

possession of the said sub-plots since the year 1983-84.

2.4 However, on 12.10.1984, the Assistant Collector, Choryasi

Prant, passed an order cancelling Mutation Entry No.7068 dated

16.05.1983, inter alia, on the basis that the public auction dated

28.04.1981 was not conducted according to the provisions of the

ULC Act. This order was challenged before the Collector, Choryasi

Prant in Appeal No.152/1985, which passed an order dated

16.01.1986 upholding the original order dated 12.10.1984 of the

Assistant Collector. The order of the Collector was in turn

challenged before the Assistant Secretary, Revenue Department in

Revision under Rule 108(6A) of the Gujarat Land Revenue Rules,

1972. By order dated 07.04.1986, said Revision was dismissed

thereby upholding the order dated 16.01.1986 passed by the

Collector in Appeal No.152/1985.

5

2.5 On 03.05.1988, the Government of Gujarat exercised its

powers of revision under Section 34 of the ULC Act and set aside

the order dated 18.02.1980 passed by the Competent Authority-I,

and remanded the matter to the Competent Authority & Additional

Collector, ULC, Surat (for short, “Competent Authority-II”) for

reconsideration of the question of “excess land” with regard to the

subject land Survey No.339. Thereafter, on 16.01.1989, the

Competent Authority-II passed an order declaring that 662.18

square metres out of the total area of 9303 square metres of the

subject land in Survey No.339 – Final Plot Nos. 9A and 9B was

‘excess land’.

2.6 According to the appellants, in the order dated 16.01.1989,

the cancellation of the mutation entry was specifically mentioned.

However, they were not served with any notice by the Competent

Authority-II, though they were the unit holders (sub-plot holders),

and were in actual physical and legal possession of the said units.

Furthermore, none of them was made a party before the Competent

Authority-II, despite being in possession.

6

2.7 Therefore, on the cancellation of the auction purchase in

favour of Khodidas Kanjibhai Patel the original landowner,

Kuberbhai Nathubhai, entered into a registered agreements of sale

for the sub-plots in favour of the sub-plot holders/appellants

herein, and hence the appellants became owners and came into

possession of sub-plot Nos.1 to 77 situated upon Survey No.339.

According to the appellants, majority of them are engaged in the

business of diamond cutting and polishing, while a few of them are

engaged in different businesses, such as embroidery and other

small businesses.

2.8 On 22.11.1990, a notice under Section 10(5) of the ULC Act

was issued to the original landholder directing him to vacate and

handover possession of the “excess land” to the respondent/State

Government within a period of thirty days. Since possession was

not surrendered, the Deputy Collector, ULC drew Panchnama dated

21.01.1992, directing taking over possession of the ‘excess land’ to

the tune of 662.18 square metres out of the total area of the land

admeasuring 9303 square metres. In the said order, it was also

observed that the said excess land is “open on the site” and that

7

the possession of the same has been taken by the Competent

Authority and Deputy Collector, ULC.

2.9 When some of the sub-plot holders tried to resell their sub-

plots, the Competent Authority-II sent letters dated 20.06.2007 and

05.07.2008 refusing to grant ‘No Objection Certificates’ (for short,

“NOCs”) for the subsequent sale, on the ground that the

constructed units were situated over the alleged ‘excess land’ as the

said surplus land was taken over and therefore vested in the

government since 21.01,1992. The appellants contended that this

was the first time it came to their knowledge that the said property

had been declared as ‘excess land’ by the Competent Authority-II.

2.10 Aggrieved, the appellants preferred Writ Petition being

Special Civil Application No.533/2009 before the Gujarat High

Court, seeking relief in the nature of directions to the respondent

to issue the necessary NOCs for subsequent sale of the said sub-

plots. Thereafter another Writ Petition being Special Civil

Application No.10844/2010 was preferred by the appellants before

the Gujarat High Court, seeking relief in the nature of a declaration

8

to the effect that no ‘Non-Agricultural Use Permission’ was required

for the usage of the said allotted sub-plots. Both the said Writ

Petitions were dismissed vide separate orders dated 08.02.2010 by

the Gujarat High Court.

2.11 Aggrieved by the dismissal of the said Writ Petitions, the

appellants preferred Letters Patent Appeals bearing LPA

Nos.2024/2010 and 1171/2011 before the Gujarat High Court. The

said Letters Patent Appeals were dismissed vide impugned common

order dated 23.07.2014. The Gujarat High Court, while dismissing

the said Letter Patent Appeals, observed that the appellants herein

are ‘illegal occupants’ of the said sub-plots and had the knowledge

and notice of the proceedings under the ULC Act as it is apparent

from the perusal of the sale deeds and ‘Raja Chitthi’ that said

transfers were made subject to the proceedings and provisions of

the ULC Act. It was further observed by the High Court that the

order of permission granted was in favour of the Society and not in

favour of the appellants. It was observed that t he fact that

electricity connections and subsequent bills raised were in the

name of the appellants but the same do not establish their

9

possession as emphasised under Section 10(5) of the ULC Act.

Lastly, the High Court also observed that none of the appellants

were in possession of the said pieces of land on the date on which

the ULC Act came into force.

2.12 Aggrieved by the impugned common order dated 23.07.2014

passed in LPA No.2024/2010 in Special Civil Application

No.533/2009 and LPA No.1171/2011 in Special Civil Application

No.10844/2010, the appellants have preferred the present Civil

Appeal. The appellants submitted that they have only challenged

one order and hence the declaration of ‘excess vacant land’ is the

only hurdle preventing the issuance of NOC’s. Therefore, if they

were to succeed in the present appeal, the other reliefs sought for,

and grievances of the appellants, including the relief sought for in

LPA No.1171/2011, can be redressed by the respondents

themselves.

Submissions:

3. We have heard learned counsel for the respective parties and

perused the materials on record.

10

3.1 Learned counsel for the appellants submitted as follows:

3.1.1 As per the wording of Section 10(5) of the ULC Act, the

intention of the legislation is clear inasmuch as the persons who

are in possession of the land are required to be served with notice

and not merely the persons who had filled the declaration form

under Section 6(1) of the ULC Act. Therefore, the High Court

misinterpreted the provisions of Section 10(5) of the ULC Act. Had

the appellants, as possessors of the concerned plots been served

notice, they would have been in a position to take appropriate

action against the orders of the Competent Authority-II, as well as

the original landowners. Neither Benches of the High Court

disagreed with the fact that the physical and actual possession of

the sub-plots in question were with the appellants. Rather, while

the learned Single Judge did not consider the question of

possession, the Division Bench held that possession of the sub-

plots by the appellants was illegal under the provisions of the ULC

Act.

11

3.1.2 That the above finding is contrary to law. This is because

when the Society allotted the sub-plots to its members, including

the appellants herein, in the year 1983-84, there was no

declaration regarding ‘excess vacant land’. No notice was ever

served to the appellants about such a declaration, despite them

possessing the sub-plots, putting up construction upon them and

running small factories/diamond factories/industrial units. The

appellants had adduced electricity bills in their name to prove

possession. However, the High Court held that the electricity bills

do not establish possession.

3.1.3 Further, the High Court erred in holding that the appellants

were in illegal occupants. The original landowners, who had

executed the sale deeds, did not mention the declaration of ‘excess

vacant land’. Moreover, the Competent Authority-II only took ‘paper

possession’ of the sub-plots, and did not take over actual, physical

and legal possession, which has always remained with the

appellants. No notice was served on the appellants and therefore

the possession of ‘excess vacant land’ was not taken over legally by,

for and on behalf of the respondents. Therefore, the High Court

12

should have declared the proceedings ‘abated’ under Section 4 of

the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (for the

sake of convenience, “Repealing Act”), which speaks of abatement

of legal proceedings and granted relief to the appellants herein.

4. Per contra, learned counsel for the respondents submitted as

follows:

4.1 At the outset, while arguing before the learned Single Judge

of the Gujarat High Court, the appellants conceded all claims,

except the prayer to direct the Competent Authority-II to issue

necessary NOCs for the purpose of getting the registered sale deed

that was withheld by the Joint Sub-Registrar, Surat. Therefore, the

High Court was constrained to not consider the challenge to the

order dated 16.06.1989 on merits. The High Court thus never had

to consider the applicability of the Repealing Act, the challenge to

the order dated 16.06.1989, or the claims regarding the appellants’

right to receive notice under Section 10(5). The concessions made

by the appellants cannot now be raised before this Court.

13

4.1.1 The appellants have no locus to challenge any order passed

since the alleged sales were made without obtaining permission

from the Competent Authority-II and were in violation of Sections

5(3) and 27 of the ULC Act. The concerned lands were recorded in

the name of the State Government by an entry dated 22.10.1993,

well before the repeal of the ULC Act. The appellants have

challenged the order dated 16.06.1989 after almost twenty-one

years.

4.1.2 The possession claimed by the appellants traces back to

possession receipts issued by the Society, in whose favour the land

was transferred by auction dated 28.04.1981. However, this

auction was cancelled by order dated 12.10.1984, following which

the registration in the name of the Society was cancelled, and

possession of the land was restored to the original landowner. The

fact that the landowner challenged the order dated 16.06.1989 by

an appeal under Section 33 of the ULC Act, shows that possession

was with the landowner.

14

4.1.3 It was further submitted that Section 4 of the Repealing Act

does not apply in the present case, since the appellants had no

pending proceedings under the ULC Act before the commencement

of the Repealing Act. On 24.09.1992, a final order was passed

under Section 11 of the ULC Act regarding compensation for ‘excess

vacant land’. This marked the conclusion of proceedings under the

ULC Act.

4.1.4 The claim of the appellants depends solely upon the alleged

non-issuance of mandatory notice under Section 10(5) of the ULC

Act. However, the legislature did not intend that illegal possessors

be provided the requisite notice under Section 10(5). In this regard,

the judgement of this Court in C. Albert Morris vs. K.

Chandrasekaran, (2006) 1 SCC 228 was referred to.

4.1.5 Possession was restored to the landowner upon cancellation

of the auction. Therefore, the subsequent sale deed executed in

favour of the appellants was in violation of Section 5(3) of the ULC

Act. If a right is borne out of an act that does not have legal

sanction, such a right may exist, but is not enforceable. Therefore,

15

the appellants cannot contend that they had an enforceable right

to receive notice under Section 10(5) of the ULC Act.

Points for consideration:

5. The following points would arise for our consideration:

(i) Whether the High Court was justified in dismissing the

Writ Petitions by not applying Section 4 of the Repealing

Act and thereby not granting relief to the appellants herein.

(ii) What Order?

6. Section 10 of the ULC Act reads as under:

“10.Acquisition of vacant land in excess of ceiling

limit. –

(1) As soon as may be after the service of the

statement under section 9 on the person concerned,

the competent authority shall cause a notification

giving the particulars of the vacant land held by

such person in excess of the ceiling limit and stating

that-

(i) such vacant land is to be acquired by the

concerned State Government; and

(ii) the claims of all person interested in such

vacant land may be made by them personally

or by their agents giving particulars of the

nature of their interests in such land,

16

to be published for the information of the general

public in the Official Gazette of the State concerned

and in such other manner as may be prescribed.

(2) After considering the claims of the persons

interested in the vacant land, made to the competent

authority in pursuance of the notification published

under sub-section (1), the competent authority shall

determine the nature and extent of such claims and

pass such orders as it deems fit.

(3) At any time after the publication of the

notification under sub-section (1), the competent

authority may, by notification published in the

Official Gazette of the State concerned, declare that

the excess vacant land referred to, in the notification

published under sub -section (1) shall, with effect

from such date as may be specified in the

declaration, be deemed to have been acquired by the

State Government and upon the publication of such

declaration, such land shall be deemed to have

vested absolutely in the State Government free from

all encumbrances with effect from the date so

specified.

(4) During the period commencing on the date

of publication of the notification under sub-section

(1) and ending with the date specified in the

declaration made under sub-section (3) –

(i) no person shall transfer by way of sale,

mortgage, gift, lease or otherwise any excess

vacant land (including any part thereof)

specified in the notification aforesaid and

any such transfer made in contravention of

this provision shall be deemed to be null

and void; and

(ii) no person shall alter or cause to be altered

the use of such excess vacant land.

17

(5) Where any vacant land is vested in the State

Government under sub-section (3), the competent

authority may, by notice in writing, order any person

who may be in possession of it to surrender or

deliver possession thereof to the State Government

or to any person duly authorised by the State

Government in this behalf within thirty days of the

service of the notice.

(6) If any person refuses or fails to comply with

an order made under sub-section (5), the competent

authority may take possession of the vacant land or

cause it to be given to the concerned State

Government or to any person duly authorised by

such State Government in this behalf and may for

that purpose use such force as may be necessary.

Explanation.- In this section, in sub-section (1) of

section 11 and in sections 14 and 23, “State

Government”, in relation to-

(a) any vacant land owned by the Central

Government, means the Central Government;

(b) any vacant land owned by any State

Government and situated in a Union Territory or

within the local limits of a cantonment declared as

such under section 3 of the Cantonments Act, 1924,

means that State Government.”

7. Section 10 of the ULC Act speaks of acquisition of vacant land

in excess of the ceiling limit. Once a final statement is issued under

Section 9 of the ULC Act, the same has to be served on the person

concerned by the Competent Authority which shall also issue a

18

notification giving the particulars of the vacant land held by such

person in excess of the ceiling limit. The said notification shall also

state that:

(i) such vacant land is to be acquired by the concerned State

Government;

(ii) the claims of all persons interested in such vacant land may

be made by them personally or by their agents giving

particulars of the nature of their interests in such land.

8. The said notification has to be published in the Official

Gazette of the State concerned. The Competent Authority shall

thereafter consider the claims of the persons interested and

determine the nature and extent of such claims and pass orders

accordingly. From the date of the publication of the notification in

the Official Gazette of the State as per sub-Section (1) of Section 10

of the ULC Act, the vacant land is deemed to have been acquired by

the State Government. Also, the publication of such a notification

implies a declaration that such land shall be deemed to have vested

absolutely in the State Government free from all encumbrances

with effect from the date so specified. No person can transfer any

19

excess vacant land specified in the notification in any manner

known to law and no person shall alter or cause to be altered the

use of such excess vacant land once the publication of the

notification under sub-Section (1) is made till the dates specified in

the declaration made under sub-Section (3) of Section 10 of the ULC

Act.

9. On the basis of the vacant land having vested in the State

Government as per sub-Section (3) of Section 10 of the ULC Act,

the Competent Authority, by notice in writing, order any person

who may be in possession of vacant land of it to surrender or deliver

possession to the State Government or to any person duly

authorised by the State Government within thirty days of the

service of the notice (vide Section 10(5) of the ULC Act). In case, if

any person refuses or fails to comply with an order made under

sub-section (5) of Section 10 of the ULC Act, the Competent

Authority may take possession of the vacant land or cause it to be

given to the concerned State Government or to any person duly

authorised by such State Government and may for that purpose

use such force as may be necessary.

20

10. Therefore, Section 10 of the ULC Act categorically

distinguishes between the vesting of land in the State Government

and taking possession of the vested land from any person who is in

possession of the said land. The two legal consequences are distinct

and have to be borne in mind while considering the savings clause

as well as the abatement clause under Sections 3 and 4,

respectively of the Repealing Act.

11. The Explanation to Section 10 does not require any discussion

for the purpose of this case.

12. In the State of Uttar Pradesh vs. Hari Ram, (2013) 4 SCC

280 (“Hari Ram”), a two-judge bench of this Court explained the

enactment of the ULC Act, as well as the Repealing Act, in great

detail including the history of the ULC Act. Then, this Court

referred to the Statement of Objects and Reasons of the Repealing

Act, outlining as follows:

“12. Before examining the scope of sub -section (3) of

Section 10 as well as sub-sections (5) and (6) of Section 10,

reference may be made to the Repeal Act, 1999 and its

object and reasons which are as follows:

21

Statement of Object and Reasons:

“1. The Urban Land (Ceiling and Regulation) Act,

1976 was passed when Proclamation of

Emergency was in operation with a laudable social

objective in mind… ….Unfortunately public

opinion is nearly unanimous that the Act has

failed to achieve what was expected of it. It has on

the contrary pushed up land prices to

unconscionable levels, practically brought the

housing industry to a stop and provided copious

opportunities for corruption. There is widespread

clamour for removing this most potent clog on

housing.

xxx

4. The proposed repeal, along with some other

incentives and simplification of administrative

procedures is expected to revive the stagnant

housing industry and provide affordable living

accommodation for those who are in a state of

underserved want and ar e entitled to public

assistance. The repeal will not however, affect land

on which building activity has already

commenced. For that limited purpose, exemptions

granted under Section 20 of the Act will continue

to be operative. Amounts paid out by the State

Government will become refundable.”

13. While the Repealing Act thus sought to put an end to the

substantive operation of the ULC Act, it contained a savings clause,

which is as follows:

22

“3. Savings.—(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 by the competent

authority;

(b) the validity of any order granting exemption under sub-

section (1) of Section 20 or any action taken thereunder,

notwithstanding any judgment of 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 or any person duly

authorised 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 restored unless the amount paid,

if any, has been refunded to the State Government.”

14. On the other hand, Section 4 of the Repealing Act provides for

abatement of proceedings pending immediately before the

commencement of the Act, and for immediate reference, is

reproduced once as under:

23

“4. Abatement of legal proceedings. —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.”

15. The core of the dispute at hand centers around the proper

application of Section 4 of the Repealing Act to the facts of this case.

The appellants contended that without notice being delivered to

them under Section 10(5) of the ULC Act (since they were in actual

possession of the concerned land), possession has not been legally

transferred to the State. Therefore, the proceedings relating to

transfer of possession of the sub-units was ‘pending’ at the time of

commencement of the Repealing Act, resulting in their abatement

under Section 4 of the Repealing Act.

15.1 Per contra, the respondents submitted that a ‘final order’

regarding compensation for the land deemed to be “excess” and

24

“vacant” was passed on 24.09.1992. With this order, the

proceedings concluded and hence there is no question of the matter

of possession having been ‘abated’ with the advent of the Repealing

Act.

16. The legal questions that arise for our consideration in the

present appeal are therefore as follows:

i) Was the delivery of notice under Section 10(5) to the appellants

(as possessors of the concerned lands) a mandatory step, the

non-fulfilment of which would render abatement of the

proceedings in terms of Section 4 of the Repealing Act?

ii) Despite the recording of lands in the name of the State

Government, if actual possession was not subsequently

transferred to the Government, would this render the

proceedings to abate under Section 4 of the Repealing Act?

The aforesaid questions shall be considered together.

17. In Hari Ram, this Court considered the proper meaning of the

phrases “deemed to have been acquired by the State Government”

and “vested absolutely in the State Government” in Section 10(3) of

25

the ULC Act. The relevant paragraphs containing this Court’s

reasoning are reproduced below:

“24. The expression “deemed to have been acquired” used

as a deeming fiction under sub-section (3) of Section 10

can only mean acquisition of title or acquisition of interests

because till that time the land may be either in the

ownership of the person who held that vacant land or to

possess such land as owner or as a tenant or as mortgagee

and so on as defined under Section 2(1) of the Act. The

word “vested” has not been defined in the Act, so also the

word “absolutely”. What is vested absolutely is only the

land which is deemed to have acquired and nothing

more….

xxx

29. What is deemed “vesting absolutely” is that “what is

deemed to have acquired”. In our view, there must be

express words of utmost clarity to persuade a court to hold

that the legislature intended to divest possession also,

since the owners or holders of the vacant land are pitted

against a statutory hypothesis….

30. Vacant land, it may be noted, is not actually acquired

but deemed to have been acquired, in that deeming things

to be what they are not. Acquisition, therefore, does not

take possession unless there is an indication to the

contrary. It is trite law that in construing a deeming

provision, it is necessary to bear in mind the legislative

purpose. The purpose of the Act is to impose ceiling on

vacant land, for the acquisition of land in excess of the

ceiling limit thereby to regulate construction on such

lands, to prevent concentration of urban lands in the

hands of a few persons, so as to bring about equitable

distribution. For achieving that object, various procedures

have to be followed for acquisition and vesting. When we

look at those words in the above setting and the provisions

26

to follow such as sub-sections (5) and (6) of Section 10, the

words “acquired” and “vested” have different meaning and

content. Under Section 10(3), what is vested is de jure

possession not de facto, for more reasons than one

because we are testing the expression on a statutory

hypothesis and such an hypothesis can be carried only to

the extent necessary to achieve the legislative intent.”

(underlining by us)

17.1 Therefore, the land ‘vesting’ with the State Government does

not connote the transfer of possession. Rather, what is ‘deemed’ to

have ‘vested’ are the aspects that have deemed i.e., by a legal fiction

to have been ‘acquired’, i.e., title or interests. Possession, as

explained in Hari Ram vests de jure and not de facto. ‘Acquisition’

(of title or interests) does not necessarily involve the transfer of such

de facto possession. Such transfer requires certain explicit steps to

be taken, which were also outlined by this Court in Hari Ram as

follows:

“Voluntary Surrender

31. The “vesting” in sub-section (3) of Section 10, in our

view, means vesting of title absolutely and not possession

though nothing stands in the way of a person voluntarily

surrendering or delivering possession…

32. We are of the view that so far as the present case is

concerned, the word “vesting” takes in every interest in the

property including de jure possession and, not de facto but

27

it is always open to a person to voluntarily surrender and

deliver possession, under Section 10(3) of the Act.

33. Before we examine sub-section (5) and sub-section (6)

of Section 10, let us examine the meaning of sub-section

(4) of Section 10 of the Act, which says that during the

period commencing on the date of publication under sub-

section (1), ending with the day specified in the declaration

made under sub-section (3), no person shall transfer by

way of sale, mortgage, gift or otherwise, any excess vacant

land, specified in the notification and any such transfer

made in contravention of the Act shall be deemed to be

null and void. Further, it also says that no person shall

alter or cause to be altered the use of such excess vacant

land. Therefore, from the date of publication of the

notification under sub-section (1) and ending with the date

specified in the declaration made in sub-section (3), there

is no question of disturbing the possession of a person, the

possession, therefore, continues to be with the holder of

the land.

Peaceful dispossession

34. Sub-section (5) of Section 10, for the first time, speaks

of “possession” which says that where any land is vested

in the State Government under sub-section (3) of Section

10, the competent authority may, by notice in writing,

order any person, who may be in possession of it to

surrender or transfer possession to the State Government

or to any other person, duly authorised by the State

Government.

35. If de facto possession has already passed on to the

State Government by the two deeming provisions under

sub-section (3) of Section 10, there is no necessity of using

the expression “where any land is vested” under sub -

section (5) of Section 10. Surrendering or transfer of

possession under sub-section (3) of Section 10 can be

voluntary so that the person may get the compensation as

28

provided under Section 11 of the Act early. Once there is

no voluntary surrender or delivery of possession,

necessarily the State Government has to issue notice in

writing under sub-section (5) of Section 10 to surrender or

deliver possession……

Forceful possession

36. The Act provides for forceful dispossession but only

when a person refuses or fails to comply with an order

under sub-section (5) of Section 10. Sub-section (6) of

Section 10 again speaks of “possession” which says, if any

person refuses or fails to comply with the order made

under sub-section (5), the competent authority may take

possession of the vacant land to be given to the State

Government and for that purpose, force—as may be

necessary—can be used…. Forcible dispossession of the

land, therefore, is being resorted to only in a situation

which falls under sub-section (6) and not under sub-

section (5) of Section 10. Sub-sections (5) and (6),

therefore, take care of both the situations i.e. taking

possession by giving notice, that is, “peaceful

dispossession” and on failure to surrender or give delivery

of possession under Section 10(5), then “forceful

dispossession” under sub-section (6) of Section 10.”

(underlining by us)

17.2 Hence, after de jure possession is vested, there are three

methods by which de facto possession may be transferred: the first

is voluntary transfer by the possessor under Section 10(3) of the

ULC Act. If possession is not voluntarily transferred, then the

second method is through delivery of notice under Section 10(5) of

29

the ULC Act to the possessor. In case possession is still not

transferred, then the third method involves the Competent

Authority taking possession under Section 10(6) of the ULC Act (by

force, if required) and delivering it to the State Government.

18. On the question of delivery of notice under Section 10(5), this

Court observed in Hari Ram as under:

“37. The requirement of giving notice under sub-sections

(5) and (6) of Section 10 is mandatory. Though the word

“may” has been used therein, the word “may” in both the

sub-sections has to be understood as “shall” because a

court charged with the task of enforcing the statute needs

to decide the consequences that the legislature intended to

follow from failure to implement the requirement. Effect of

non-issue of notice under sub-section (5) or sub-section

(6) of Section 11 is that it might result in the landholder

being dispossessed without notice, therefore, the word

“may” has to be read as “shall”.

xxx

39. The abovementioned directives make it clear that sub-

section (3) takes in only de jure possession and not de facto

possession, therefore, if the landowner is not surrendering

possession voluntarily under sub-section (3) of Section 10,

or surrendering or delivering possession after notice,

under Section 10(5) or dispossession by use of force, it

cannot be said that the State Government has taken

possession of the vacant land.”

(underlining by us)

30

18.1 We, therefore, see that the requirement of issuance of

notice under Section 10(5) is mandatory and must be issued to the

person(s) actually in possession of the concerned land. This is clear

from the wording of the statute (“order any person who may be in

possession of it”), which are interpreted by this Court in Hari Ram.

This Court opined that the importance of delivering notice lay in

avoiding a situation where a person is “dispossessed” without

notice which would be in violation of the principles of natural

justice, thereby clearly envisioning that the possessor must be

served with notice.

18.2 Having held thus, this Court concluded by establishing the

proper scope of application of Section 4 of the Repealing Act, as

under:

“Effect of the Repeal Act

41. Let us now examine the effect of Section 3 of Repeal

Act 15 of 1999 on sub-section (3) of Section 10 of the Act.

The Repeal Act, 1999 has expressly repealed Act 33 of

1976. The objects and reasons of the Repeal Act have

already been referred to in the earlier part of this

judgment. The Repeal Act has, however, retained a saving

clause. The question whether a right has been acquired

or liability incurred under a statute before it is repealed

31

will in each case depend on the construction of the

statute and the facts of the particular case.

42. The mere vesting of the land under sub-section (3) of

Section 10 would not confer any right on the State

Government to have de facto possession of the vacant

land unless there has been a voluntary surrender of

vacant land before 18-3-1999. The State has to establish

that there has been a voluntary surrender of vacant land

or surrender and delivery of peaceful possession under

sub-section (5) of Section 10 or forceful dispossession

under sub-section (6) of Section 10. On failure to

establish any of those situations, the landowner or holder

can claim the benefit of Section 4 of the Repeal Act. The

State Government in this appeal could not establish any

of those situations and hence the High Court is right in

holding that the respondent is entitled to get the benefit

of Section 4 of the Repeal Act.”

(underlining by us)

18.3 Therefore, landowner/holder of land may claim the

benefit of Section 4 of the Repealing Act (abatement of proceedings)

if de facto possession has not yet been transferred either through

voluntary surrender, peaceful transfer under Section 10(5) (which,

as observed earlier, requires notice to the possessor) or forceful

dispossession under Section 10(6) of the ULC Act.

19. It would also be apt to refer to a more recent judgment of this

Court in AP Electrical Equipment Corp oration vs. Tahsildar,

32

2025 SCC OnLine SC 447 (“AP Electrical”), in which a Bench

comprising J.B. Pardiwala and R. Mahadevan, JJ. (one of us) ruled

on the acquisition of ‘possession’ under the ULC Act. Writing for

the bench, Pardiwala, J. observed:

“20. Thus, by virtue of the provisions of Section 3 of the

Repeal Act, 1999, if possession of vacant land has been

taken over on behalf of the State Government before the

coming into force of the Repeal Act, 1999, the repeal of the

Principal Act would not affect the vesting of such land

under sub-section (3) of Section 10 of Act, 1976. Hence,

the issue as to whether actual possession of land declared

excess under the Act has been taken over or not assumes

great significance after the coming into force of the Repeal

Act, 1999 inasmuch as if possession has not been taken

over, the proceedings would abate under Section 4 of the

Repeal Act, 1999 and the ownership of the land, if vested

in the State Government under Section 10(3) of the Act,

1976 would be required to be restored to the original land-

holder subject to repayment of any amount that has been

paid by the State Government with respect to such land.”

(underlining by us)

19.1 On the specific question of delivery of notice under

Section 10(5) of the ULC Act, it was held as follows:

“22. On a plain reading of the aforesaid provisions, it is

apparent that the statute contemplates giving an

opportunity to the landholder or any person in possession

of excess vacant land to surrender or deliver possession

thereof to the State Government and for this purpose

provides for giving notice in writing, ordering such person

33

to surrender or deliver possession of such land. It is only

when pursuant to such notice, such person refuses or fails

to comply with an order under sub-section (5) within a

period of thirty days of the service of notice, that the

competent authority is required to take over possession of

the vacant land and for that purpose may use force, if

necessary. Therefore, the provisions of sub-section (6) are

to be resorted to only when there is refusal or non -

compliance of an order under sub-section (5) of Section 10

of the Act, 1976 within the prescribed period.

xxx

25. ….when sub-section (5) of Section 10 mandates giving

notice of an order under the said sub-section to the person

in possession, the same is required to be complied with in

its true letter and spirit. Considering the nature of rights

involved, mere issuance of notice without service thereof,

cannot be said to be due compliance with the provisions of

the statute. Besides, the provisions of subsection (6) of

Section 10 can be resorted to only if the person fails to

comply with an order under sub-section (5) thereof, within

a period of thirty days of service of notice. Hence,

possession cannot be taken over under Section 10(6) of the

Act, 1976 unless a period of thirty days from the date of

service of notice has elapsed. In absence of service of notice

under sub-section (5) of Section 10, there will be no

starting point for calculating the period of thirty days. In

other words, time will not start running, hence the

question of taking over possession under sub-section (6) of

Section 10 of the Act, 1976 will not arise at all….

(underlining by us)

19.2 The delivery of notice to the person in possession was

therefore unequivocally held to be mandatory. Indeed, the

34

emphasis was on the service of notice on the possessor, as opposed

to mere issuance of the same. In the absence of such service of

notice, any attempt at forced dispossession was held to be contrary

to the statute and hence illegal.

19.3 This Court reiterated the conclusion in Hari Ram, i.e., that

if possession has not been taken over by the State Government,

then the proceedings under the Act would abate under Section 4 of

the Repealing Act. The “mere vesting of the vacant land with the

State Government by operation of law, without actual possession,

is not sufficient”. This Court in AP Electrical phrased the

conclusion of Hari Ram in the following manner:

“29. ….To put it in other words, the mere paper possession

would not save the situation for the State Government

unless the State is able to establish by cogent evidence

that actual physical possession of the entire land was

taken over by evicting each and every person from the

land. The onus is on the State to establish that actual

physical possession of the excess vacant land was taken

over before the repeal.”

(underlining by us)

19.4 A situation in which possession was not actually transferred

to the State Government under the provisions of Section 10 of the

35

ULC Act, was thus deemed to be ‘paper possession’, and incapable

of preventing proceedings from abating under Section 4 of the

Repealing Act.

19.5 This Court in AP Electrical examined a prior decision of

this Court in State of Assam vs. Bhaskar Jyoti Sarma, (2015)

5 SCC 321 (“Bhaskar Jyoti Sarma”), since it appeared to “at the

first blush create an impression that the dictum as laid in Hari

Ram has been diluted”. It assessed the effect of Bhaskar Jyoti

Sarma on the dictum on Hari Ram as follows.

“33. We quote few relevant paras of the said judgment as

under:—

xxx

“15. 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 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

once again be liable to be evicted under Sections

10(5) and 10(6) of the Act upon his failure to

deliver or surrender such possession. In reality

therefore unless there was something that was

inherently wrong so as to affect the very process

36

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 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 this Court may uphold his contention that

the procedure ought to be followed as prescribed,

it may still be not enough for him to retain the land

for the 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 the ground that no notice under Section 10(5)

had been served upon him.

16. The issue can be viewed from another angle

also. Assuming that a person in possession could

make a grievance, no matter without much gain in

the ultimate analysis, the question is whether

such grievance could be made long after the

alleged violation of Section 10(5). If actual physical

possession was taken over from the erstwhile land

owner on 7th December, 1991 as is alleged in the

present case any grievance based on Section 10(5)

ought to have been made within a reasonable time

of such dispossession. If the owner 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 right under

Section 10(5) of the Act. Any other view would, in

our opinion, give a licence to a litigant to make a

grievance not because he has suffered any real

prejudice that needs to be redressed but only

37

because the fortuitous circumstance of a Repeal

Act tempted him to raise the issue regarding his

dispossession being in violation of the prescribed

procedure.

17. 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’

appearing in Section 10(5) gave to the competent

authority the discretion to issue or not to issue a

notice before taking 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 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). In the case at

hand if the appellant's version r egarding

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 and would not 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 do so.”

(Emphasis supplied)

38

34. We have supplied emphasis on paras 15 and 17

of Bhaskar Jyoti Sharma (supra) referred to above, for the

purpose of highlighting that Hari Ram (supra) has not

been diluted in any manner. We are of the firm view

that Hari Ram (supra) holds the field even as on date. The

statements of law in Hari Ram (supra) are absolutely

correct.

35. If two decisions of this Court appear inconsistent with

each other, the High Courts are not to follow one and

overlook the other, but should try to reconcile and respect

them both and the only way to do so is to adopt the wise

suggestion of Lord Halsbury given

in Quinn v. Leathem, [1901] A.C. 495 and reiterated by

the Privy Council in Punjab Cooperative Bank

Ltd. v. Commr. of Income Tax, Lahore AIR 1940 PC 230:

“…… every judgment must be read as applicable

to the particular facts proved or assumed to be

proved, since the generality of the expressions,

which may be found there, are not intended to be

expositions of the whole law, but governed or

qualified by the particular facts of the case in

which such expressions are to be found.” and

follow that decision whose facts appear more in

accord with those of the case at hand.”

20. We are inclined to agree with this view of this Court in AP

Electrical regarding the effect of Bhaskar Jyoti Sarma on the

dictum in Hari Ram. In the former, de facto possession had

actually been transferred to the State Government. Albeit, this was

done by force in contravention of the requirement to mandatorily

39

issue notice under Section 10(5) of the ULC Act. In this regard, this

Court held that if the objection regarding the non-compliance with

Section 10(5) is not made within a “reasonable time”, then the right

to so object is “waived”.

20.1 However, the facts of Hari Ram (and indeed, the present

case) are different insofar as de facto possession was not

transferred, by force or otherwise. Therefore, the question is not

whether an actual transfer of possession by force is vitiated by a

delay in raising objections to the transfer. Rather, the question is

whether actual possession has been transferred at all, if no process

of transfer has been conducted under the various provisions of

Section 10 of the ULC Act. Therefore, the dictum in Hari Ram

stands undisturbed by the judgment in Bhaskar Jyoti Sarma.

20.2 In fact, this Court in AP Electrical wholly aligned with the

dictum in Hari Ram regarding the difference between ‘vesting’ and

‘possession’, observing as follows:

“38. If de facto possession has already passed on to the

State Government by the two deeming provisions under

sub-section (3) to Section 10, there is no necessity of using

40

the expression “where any land is vested.” under sub-

section (5) to Section 10…

39. The mere vesting of the land under subsection (3) of

Section 10 would not confer any right on the State

Government to have de facto possession of the vacant land

unless there has been a voluntary surrender of vacant land

before 18.03.1999. State has to establish that there has

been a voluntary surrender of vacant land or surrender

and delivery of peaceful possession under subsection (5) of

Section 10 or forceful dispossession under sub-section (6)

of Section 10. On failure to establish any of those

situations, the landowner or holder can claim the benefit

of Section 3 of the Repeal Act, 1999. In the case on hand,

the State Government has in our considered view not been

able to establish any of those situations and hence the

learned Single Judge was right in holding that the

appellant herein is entitled to get the benefit of Section 3

of the Repeal Act, 1999.”

(underlining by us)

20.3 Finally, bringing all the above concepts together, this Court

summed up the proper effect of the Repealing Act, as also the

question of possession under Section 10 of the ULC Act, as follows:

“40. The effect of Repeal Act, 1999 is further clear. If the

landowner remains in physical possession, then

irrespective of his land being declared surplus and/or

entry being made in favour of the State in revenue records,

he will not be divested of his rights….

41. The propositions of law governing the issue of

possession in context with Sections 10(5) and 10(6)

respectively of the Act, 1976 read with Section 3 of the

Repeal Act, 1999 may be summed up thus:

41

[1] The Repeal Act, 1999 clearly talks about the

possession being taken under Section 10(5) or

Section 10(6) of the Act, 1976, as the case may be.

[2] It is a statutory obligation on the part of the

competent authority or the State to take

possession strictly as permitted in law.

[3] In case the possession is purported to have been

taken under Section 10(6) of the Act, 1976 the

Court is still obliged to look into whether “taking

of such possession” is valid or invalidated on any

of the considerations in law.

[4] The possession envisaged under Section 3 of the

Repeal Act, 1999 is de facto and not de jure only.

[5] The mere vesting of “land declared surplus” under

the Act without resuming “de facto possession” is

of no consequence and the land holder is entitled

to the benefit of the Repeal Act, 1999.

[6] The requirement of giving notice under sub-

sections (5) and (6) of Section 10 respectively is

mandatory. Although the word “may” has been

used therein, yet the word “may” in both the sub-

sections should be understood as “shall” because

a Court is obliged to decide the consequences that

the legislature intended to follow from the failure

to implement the requirement.

[7] The mere vesting of the land under sub-section (3)

of Section 10 would not confer any right on the

State Government to have de facto possession of

the vacant land unless there has been a voluntary

surrender of vacant land before 18th March 1999.

[8] The State has to establish by cogent evidence on

record that there has been a voluntary surrender

of vacant land or surrender and delivery of

peaceful possession under sub -section (6) of

42

Section 10 or forceful dispossession under sub-

section (6) of Section 10.”

(underlining by us)

20.4 We find that this view is in accordance with the prior

dictum of this Court in Hari Ram, and agree with the same. At this

juncture, we find it appropriate to briefly go through certain other

pronouncements of this Court, all of which are aligned on the

necessity of serving notice on the possessor under Section 10(5);

the difference between vesting and possession; the difference

between de jure and de facto possession and the effect of the

Repealing Act.

21. The following judgments of this Court could be adverted to at

this stage:

a) In Mangalsen vs. State of Uttar Pradesh, (2014) 15 SCC

332, this Court observed that the application filed under Section

20 of the ULC Act was still pending and therefore, the State

Government’s claim to taking possession of the surplus land was

found not based on facts. It was also not clear from the record

whether or not the notice under Section 10(5) was served upon the

43

appellant therein. The notice under Section 11(8) of the ULC Act

determining compensation was after a gap of ten years. Hence, it

was observed that there was no evidence to prove that the notice

issued under Section 10(5) had been served upon the appellant

therein or that he had illegally occupied the surplus land after

30.01.1990. In paragraph 14 of the judgment, this Court has also

noted the tardy approach in the matter by the competent authority

which makes an interesting reading.

b) In Gajanan Kamlya Patil vs. Additional Collector &

Competent Authority, (2014) 12 SCC 523 , it was held that in the

absence of any evidence to show that appellant therein had

voluntarily surrendered or respondents therein had taken peaceful

or forceable possession of the lands in question, the respondents

therein had only de jure possession before coming into force of the

Repealing Act. Since de facto possession of lands was not taken

before execution of possession receipt, it was held that the

respondent therein could not hold on to the lands in question which

were legally owned and possessed b y the appellants therein.

Accordingly, it was observed as under:

44

“12. We have, therefore, clearly indicated that it was

always open to the authorities to take forcible possession

and, in fact, in the notice issued under Section 10(5) of the

ULC Act, it was stated that if the possession had not been

surrendered, possession would be taken by application of

necessary force. For taking forcible possession, certain

procedures had to be followed. The respondents have no

case that such procedures were followed and forcible

possession was taken. Further, there is nothing to show

that the respondents had taken peaceful possession, nor

is there anything to show that the appellants had given

voluntary possession. The facts would clearly indicate that

only de jure possession had been taken by the respondents

and not de facto possession before coming into force of the

repeal of the Act. Since there is nothing to show that de

facto possession had been taken from the appellants prior

to the execution of the possession receipt in favour

of MMRDA, it cannot hold on to the lands in question, which

are legally owned and possessed by the appellants….”

(underlining by us)

c) In U.A. Basheer vs. State of Karnataka, (2021) 5 SCC 313,

while referring to Sections 3 and 4 of the Repealing Act which deal

with savings clause and abatement of proceeding clause

respectively observed as under:

“18. It is clear from the aforementioned legislative

provisions that the question of current possession of the

suit property is absolutely material to a full adjudication

of the controversy before us. This is because, if the

appellant does enjoy possession, as claimed by him, any

proceedings for any excess land under the principal Act

are liable to abate, as per Section 3 and Section 4 of the

45

Repeal Act, and the appellant would be entitled to

ownership and possession over the suit property……”

(underlining by us)

d) In State of Orissa vs. Sakhi Bewa, (2022) 16 SCC 594 , it

was held that the question whether surplus land was taken over by

the State is a question of fact and is not concerned with payment

of compensation to the landowner. That merely because

compensation has not been paid, it cannot be presumed that

possession was not taken over. In the aforesaid context, it was

observed as under:

“4.3. A fair reading of Sections 3 and 4 of the 1999 Repeal

Act makes it clear that all proceedings relating to any order

made or purported to be made under the principal Act (the

1976 Act) pending immediately before the commencement

of the 1999 Repeal Act, before any court, tribunal or other

authority shall abate. Section 4 of the Repeal Act shall not

apply provided possession of land has been taken over by

the State Government or any person duly authorised by

the State Government in this behalf or by the competent

authority. Therefore, if the possession of the surplus

land/land has been taken over by the State Government

or any person duly authorised by the State Government in

this behalf or by the competent authority, in that case, the

proceedings relating to any order made under the principal

1976 Act shall not abate, meaning thereby that the 1999

Repeal Act shall not affect all those proceedings with

respect to the land of which the possession has been taken

over. Therefore, before declaring the proceedings as having

abated in view of Sections 3 and 4 of the 1999 Repeal Act,

46

it has to be considered and decided whether possession of

the surplus land/land has been taken over by the State

Government or any person duly authorised by the State

Government in this behalf or by the competent authority

or not. If it is found and held that the possession of the

surplus land has been taken over, in that case, the

proceedings shall not be declared as having been abated.”

(underlining by us)

22. The land in question is admeasuring 9303 square metres in

Village Katargam, Surat, Gujarat which initially belonged to one

Nathubhai Ranchhodbhai and on his demise to his heir Kuberbhai

Nathubhai. That on the enforcement of ULC Act proceedings were

initiated under the said Act on Kuberbhai Nathubhai filing a Form

under Section 6(1) of the ULC Act and by making a declaration

thereby. Initially, the Competent Authority-I under the ULC Act

held that the land in question was exempt as per Section 21 of the

said Act and the remaining land was within the ceiling limit. The

Society purchased the land bearing Survey No.339 at a public

auction on 28.04.1981 conducted by the Special Recovery Officer

and the name of Society was entered in the Mutation records.

Industrial units were developed on the said land. Thereafter, the

Assistant Collector passed an order cancelling Mutation entries on

47

the premise that the public auction dated 28.04.1981 was not

conducted in accordance with the provisions of the ULC Act which

order was challenged before the Collector and on being

unsuccessful, it was challenged before the Assistant Secretary,

Revenue Division by filing a revision petition.

22.1 When the matters stood thus, the Government of Gujarat

exercised its revisional powers under Section 34 of the ULC Act and

set aside the initial order dated 18.02.1980 passed by the

Competent Authority-II and remanded the matter for

reconsideration and on 16.01.1989 it was held that 662.18 square

metres was ‘excess land’. None of the appellants herein were parties

to the proceedings culminating in the order dated 16.01.1989.

Further, on the cancellation of the auction purchase in favour of

Khodidas Kanjibhai Patel, the original landowner, Kuberbhai

Nathubhai, entered into an agreement of sale of the sub-plots in

favour of the appellants herein, and they became owners in

possession of the said sub-plot Nos.1 to 77 situated upon Survey

No.339. When such being the position, on 22.11.1990, a notice was

issued under Section 10(5) of the ULC Act to the original landholder

48

directing him to vacate and handover possession of the “excess

land” to the respondent/State Government within a period of thirty

days. The said notice has been extracted below. The said notice

was not issued to the appellants herein and despite that it appears

that the Deputy Collector, ULC drew a Panchnama dated

21.01.1992, “taking over possession” of the ‘excess land’ to the tune

of 662.18 square metres out of the total area of the land

admeasuring 9303 square metres. It is only when the appellants

herein sought ‘No Objection Certificates’ for further sale that they

became aware that ‘excess land’ was taken over by the State

Government and had vested with them. Hence, they filed the Writ

Petition before the High Court which was dismissed.

22.2 The fact that notice under Section 10(5) of the ULC Act was

issued to the original owners implies that the respondents were

aware that the possession of the said land had to be taken in

accordance with Section 10 of the ULC Act. This was without

ascertaining the fact that possession of the said land was with the

appellants herein but no notice was issued to the appellants herein

who were in actual possession of the subject land.

49

22.3 Applying the above settled law to the facts at hand, we find

the following facts on the face of the record:

a) The appellants herein were in actual possession of the sub-

plots in question at the time of enforcement of the Repealing

Act.

b) On 22.11.1990, a notice under Section 10(5) regarding transfer

of possession to the State Government was issued to the

original landowner but not the appellants herein, who were in

possession of the concerned sub-plots. The said notice reads

as under:

“Regd. Post A.D. No.ULC/6(1)2/773/3912/733/

Section – 10(5)

Competent Authority and

Additional Collector Office,

First Floor, Nanpura, Surat

Date : 22-11-90

To,

Smt. Maniben wd/o Kuberbhai Nathubhai

Resident: Gotalavadi, Katargam,

Dist. Surat

Pursuant to Section – 9 of the Urban Land Ceiling

and Regulation Act, Part “CH” of Form – 3 of the Final

Statement made surplus and notice to the land holder

50

under Section – 10(5) regarding entrusting the possession

of the land forfeited to the government vide Notification of

Section – 10(3).

It is hereby informed to you that by passing an order

under Section – 8(4) of the above act regarding the land as

described in the schedule below, Final Statement under

Section – 9 was forwarded on 16 -6-89, after that

Notification of Section – 10(1) was published vide dated 28-

9-89. Now Final Notification of Section – 10(3) has been

published on dated 21-8-90 in Government Gazette in Part

4-C in English and Gujarati on Page No.1316 to 1317.

According to that notification, a land mentioned in the

schedule below has been forfeited to the government from

the date of publication as an additional land free from all

encumbrances.

So, it is hereby ordered under Section – 10(5) of the

above Act that person holding the possession / usage of

the land mentioned in the schedule below to entrust the

possession of the said land to the officer authorized by the

state government i.e. Additional Collector, Urban Land

Ceiling, Surat within days – 30 (thirty) from the receipt of

this notice.

If you may commit any delay or failure in entrusting

the possession of the land mentioned in the schedule,

possession shall be taken by using required force by taking

requisite steps under Section 10 – (6) of the above act. So

this notice is for entrusting the possession of the land

within time limit of 30 days.

SCHEDULE

Sr.

No.

Name of the

Land Holder

Name of

Taluka

S.No.

Area of the Plot

land No.

Declared

surplus

sq. Mt.

1 2 3 4 5

Maniben wd/o

Kuberbhai

Nathubhai

Katargam

Choryasi

339

Paiki T.P. No.4

662.18

No.9/A

Paiki 9/B

51

Sd/-

Competent Authority and

Additional Collector, Surat

Copy forwarded: -

Surveyor – Shree I.G. Parekh

2/- For preparing map of the above surplus land in

triplicate.”

22.4 Therefore, as per the provisions of Sections 10(3) and 10(5)

of the ULC Act, the subject land, despite having ‘vested’ (along with

acquisition of title or interests) in the State Government, was not in

the possession of the Government. Further, possession was not

taken by any of the three possible means, i.e., voluntary transfer

by the appellants, issuance of notice under Section 10(5) to the

appellants followed by peaceful transfer or forceful acquisition of

possession under Section 10(6) of the ULC Act. The possession of

the land continues with the appellants herein till date.

22.5 Such a scenario is clearly one where the provision of

abatement under Section 4 of the Repealing Act applies. The

proviso to Section 4 states that the section would not apply to

proceedings under Sections 11, 12, 13 and 14 of the ULC Act

52

relating to land that has already been taken possession of by the

State Government. Therefore, the proviso has no applicability to the

facts at hand and the benefit of abatement under the section would

apply wholesale.

22.6 That the approach to be had with cases such as the present

one is also evident upon a reading of Sections 3 and 4 of the

Repealing Act. Clearly, the legislative intent is that in cases where

lands were deemed to have been vested but possession was not yet

transferred as on date of enforcement of the Repealing Act (such as

the present case), the lands were to remain in possession of the

private parties. Section 3(2) of the Repealing Act prescribes the

procedure to be followed in specific types of situations, i.e., where

amounts paid by the State Government must be refunded . This is

not so in the present case. However, the underlying concepts are

clear – that vesting and possession are distinct and that without

the latter, the private parties have a claim over continuing to be in

possession. This is subsequently further emphasised in Section 4

of the Repealing Act, as explained earlier under which proceedings

abate as a result.

53

22.7 We are therefore unable to agree with the contentions of the

respondents herein. Also, it is not correct to submit that the

proceedings under the Act had concluded with the ‘final order’

regarding compensation dated 24.10.1992. The matter could only

have concluded by transfer of possession through one of the three

possible means explained above. The mere recording of the lands

in the name of the State Government by entry dated 22.10.1993

does not demonstrate transfer of possession. Rather, the same only

denotes de jure possession with the de facto possession remaining

in the hands of the appellants herein.

22.8 Similarly, we are unable to agree with the contention of the

respondents that the appellants cannot claim a right to receive

notice under Section 10(5) of the ULC Act. The propriety of the sale

deed executed in favour of the appellants is immaterial. Section

10(5) mandates the delivery of notice to the person(s) in possession

of the concerned lands. On the date of issuance of notice

(22.11.1990), the appellants as possessors did not receive the

same. It was sent to the erstwhile owner of the subject land. This

also implies that the respondents also were aware of the fact that

54

actual possession was not with them and there was a need to issue

notice under Section 10(5) of the ULC Act before taking over actual

possession. However, the respondents did not ascertain as to in

whose name actual possession stood. Therefore, no notice w as

issued to the appellants and hence there being no transfer of

possession in accordance with Section 10 of the ULC Act, it

continues with the appellants both in fact as well as in law. Hence,

they are entitled to the benefit of Section 4 of the Repealing Act as

they do not fall within the scope of Section 3 of the said Act which

is the savings clause. The omission to issue notice to the appellants

violated the mandatory requirement of serving notice under Section

10(5) and meant that the legal process of acquiring possession was

still ongoing, leading to abatement of proceedings under Section 4

of the Repealing Act on its enforcement.

22.9 Another argument of learned standing counsel for the

respondent-State is to the effect that the appellants herein had not

pressed the main reliefs in Special Civil Application No.533/2009

and had only sought prayer in terms of paragraph 26(c) i.e.,

directing the competent authority and Additional Collector, ULC,

55

Surat to issue necessary “NOC” for the purpose of getting the

registered sale deeds released by the Joint Sub-Registrar, Surat,

and the said prayer was not rightly granted as the other prayers

were not pressed is also not correct. Further, in the writ petition,

the learned Single Judge of the High Court also observed that the

appellants herein cannot be granted NOC as they did not have a

valid title. We find that the said reasoning is contrary to Section 4

of the Repealing Act inasmuch as the abatement of proceedings is

by operation of law based on the facts of each case and once the

proceedings under Section 10 of the ULC Act abate, the

consequential reliefs would have to be granted to the appellants

herein. Hence, the appellants are entitled to all consequential

reliefs pursuant to the abatement of the proceedings under Section

4 of the Repealing Act as the case of the appellants squarely falls

within the scope of the provision.

The consistent reasoning adopted by this Court in similar

cases, as detailed above squarely applies to this case also.

56

23. In this case, the Division Bench of the High Court was not

right in holding that the appellants were not in possession of the

subject land on the date on which the ULC Act came into force and

they were illegal occupants. Further, the High Court was also not

right in holding that although the electricity bills showed the name

of the appellants, it did not establish their possession under

Section 10(5) of the ULC Act.

24. Consequently, the impugned orders of the High Court in LPA

No.2024/2010 in Special Civil Application No.533/2009 dated

23.07.2014 and in Special Civil Application No.533/2009 dated

08.02.2010 are set aside. This appeal is allowed in the aforesaid

terms.

No costs.

….….……..………………….J.

(B.V. NAGARATHNA)

….….……..………………….J.

(R. MAHADEVAN)

NEW DELHI;

JANUARY 06, 2026.