1

2026:CGHC:261

AFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

Judgment Reserved on : 01/12/2025

Judgment Pronounced on : 05/01/2026

FA No. 128 of 2019

1 - Ramanuj Sharma S/o Late Gajanand Sharma Aged About 78 Years R/o

Sikola, Durg, Tahsil And District- Durg,Chhattisgarh, Through Their General

Power Of Attorney Holder Shri Ramanuj Sharma, S/o Late Gajanand

Sharma, R/o Village Sikola, Durg, Tahsil And District- Durg, Chhattisgarh

2 - Sandeep Sharma S/o Late Ramesh Kumar Sharma Aged About 42 Years

R/o Sikola, Durg, Tahsil And District- Durg, Chhattisgarh, Through Their

General Power Of Attorney Holder Shri Ramanuj Sharma, S/o Late Gajanand

Sharma, R/o Village Sikola, Durg, Tahsil And District- Durg, Chhattisgarh

3 - Sanjay Sharma S/o Late Ramesh Kumar Sharma Aged About 40 Years

R/o Sikola, Durg, Tahsil And District- Durg, Chhattisgarh, Through Their

General Power Of Attorney Holder Shri Ramanuj Sharma, S/o Late Gajanand

Sharma, R/o Village Sikola, Durg, Tahsil And District- Durg, Chhattisgarh

4 - Kamlesh Kumar Sharma S/o Late Gajanand Sharma Aged About 65 Years

R/o Sikola, Durg, Tahsil And District- Durg, Chhattisgarh, Through Their

General Power Of Attorney Holder Shri Ramanuj Sharma, S/o Late Gajanand

Sharma, R/o Village Sikola, Durg, Tahsil And District- Durg, Chhattisgarh

5 - Bhupendra Kumar Sharma S/o Late Gajanand Sharma Aged About 60

Years R/o Sikola, Durg, Tahsil And District- Durg, Chhattisgarh, Through Their

General Power Of Attorney Holder Shri Ramanuj Sharma, S/o Late Gajanand

Sharma, R/o Village Sikola, Durg, Tahsil And District- Durg, Chhattisgarh

6 - Naresh Kumar Sharma S/o Late Gajanand Sharma Aged About 62 Years

R/o Sikola, Durg, Tahsil And District- Durg, Chhattisgarh, Through Their

General Power Of Attorney Holder Shri Ramanuj Sharma, S/o Late Gajanand

Sharma, R/o Village Sikola, Durg, Tahsil And District- Durg, Chhattisgarh

7 - Smt. Dayawati Sharma Wd/o Late Gajanand Sharma Aged About 100

Years R/o Sikola, Durg, Tahsil And District- Durg, Chhattisgarh, Through Their

General Power Of Attorney Holder Shri Ramanuj Sharma, S/o Late Gajanand

Sharma, R/o Village Sikola, Durg, Tahsil And District- Durg, Chhattisgarh

8 - Smt. Kaushalya Sharma Wd/o Late Ramnihal Sharma Aged About 63

Years R/o Sikola, Durg, Tahsil And District- Durg, Chhattisgarh, Through Their

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General Power Of Attorney Holder Shri Ramanuj Sharma, S/o Late Gajanand

Sharma, R/o Village Sikola, Durg, Tahsil And District- Durg, Chhattisgarh

9 - Sitendra Kumar Sharma S/o Late Ramnihaal Sharma Aged About 36

Years R/o Sikola, Durg, Tahsil And District- Durg, Chhattisgarh, Through Their

General Power Of Attorney Holder Shri Ramanuj Sharma, S/o Late Gajanand

Sharma, R/o Village Sikola, Durg, Tahsil And District- Durg, Chhattisgarh

10 - Smt. Chetna D/o Late Ramnihaal Sharma Aged About 38 Years R/o

Sikola, Durg, Tahsil And District- Durg, Chhattisgarh, Through Their General

Power Of Attorney Holder Shri Ramanuj Sharma, S/o Late Gajanand

Sharma, R/o Village Sikola, Durg, Tahsil And District- Durg, Chhattisgarh

11 - Smt. Minita D/o Late Ramnihaal Sharma Aged About 34 Years R/o

Sikola, Durg, Tahsil And District- Durg, Chhattisgarh, Through Their General

Power Of Attorney Holder Shri Ramanuj Sharma, S/o Late Gajanand

Sharma, R/o Village Sikola, Durg, Tahsil And District- Durg, Chhattisgarh

12 - Smt. Shweta D/o Late Ramnihaal Sharma Aged About 32 Years R/o

Sikola, Durg, Tahsil And District- Durg, Chhattisgarh, Through Their General

Power Of Attorney Holder Shri Ramanuj Sharma, S/o Late Gajanand

Sharma, R/o Village Sikola, Durg, Tahsil And District- Durg, Chhattisgarh

... Appellants/Plaintiffs

Versus

1 - The Municipal Corporation Bhilai Through Its Commissioner, Bhilai,

District- Durg, Chhattisgarh

2 - Durg Bhilai Urban Public Transport Society, Through Its Chairman,

Chamber No. 21-A, District- Office, Durg, District : Durg, Chhattisgarh

3 - State Of Chhattisgarh Through The Collector, District -Durg, Chhattisgarh,

District : Durg, Chhattisgarh

... Respondents/Defendants

For Appellants/Plaintiffs: Mr. B.P. Sharma, Advocate along with

Mr. Pushp Kumar Gupta, Advocate

For Respondents No. 1 & 2 /

Defendants No. 1 & 2

For Respondent No. 3 /

Defendant No. 3

:

:

Mrs. Fouzia Mirza, Senior Advocate

assisted by Mr. Ali Afzaal Mirza,

Advocate

Mr. Pramod Shrivastava,

Deputy Government Advocate

Hon’ble Shri Justice Rakesh Mohan Pandey

C A V Judgment

1.This appeal under Section 96 of the Code of Civil Procedure, 1908

(hereinafter referred to as the ‘CPC’) has been preferred by the

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plaintiffs assailing the validity and propriety of judgment and decree

dated 24.01.2019 passed by the learned I

st

Additional District Court to

the Court of learned I

st

Additional District Judge, Durg, in Civil Suit No.

1236434-A/2015, whereby the suit of the plaintiffs was dismissed.

2.The plaintiffs filed a suit for declaration of title, demolition of illegal

construction, possession and permanent injunction, inter alia, on the

ground that they are owners of the land bearing Survey No. 294/1

(New Survey No. 294/12) admeasuring 3.566 hectares situated in

Village Sikola, Patwari Circle No. 17, Durg and entitled to use and to

enjoy the said property. They pleaded that in a proceeding initiated by

the Competent Authority under the provisions of the Urban Land

(Ceiling and Regulation) Act, 1976 (hereinafter referred to as the Act of

1976) against late Gajanand Sharma, a final order was passed and

3.566 hectares of land were declared surplus, but late Gajanand

Sharma remained in possession of the property. Gajanand Sharma

died in the year 1996. It is further pleaded that possession of the

property was not taken by the State in accordance with the provisions

of the Urban Ceiling Act. The plaintiffs further pleaded that the order

passed by the Competent Authority i.e. Additional Collector under the

provisions of Act of 1976 was challenged by filing WP No. 3424/1997

and it was disposed of vide order dated 19.10.2010, whereby the

plaintiffs were permitted to move an application before the Competent

Authority and the said Authority i.e. Additional Collector, Durg was

directed to inquire into the matter with regard to possession and decide

it in accordance with law. The plaintiffs moved an application on

02.11.2010, and the said Authority passed an order on 28.03.2011,

wherein it was held that possession of the suit property was taken by

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the State on 25.04.1988. The order passed by the Additional Collector-

cum-Competent Authority was challenged by filing an appeal, which

was allowed by the Additional Commissioner, Raipur Division, Raipur

vide order dated 29.10.2011, and the order dated 28.03.2011 passed

by the Additional Collector-cum-Competent Authority was set aside.

The Appellate Authority passed an order to restore the names of the

plaintiffs in the revenue records. They also pleaded that the order

passed by the Appellate Authority dated 29.10.2011 attained finality as

the same has not been modified, or reversed, or set aside by any

Superior Authority.

3.The State of Chhattisgarh preferred WP(227) No. 159/2013 before the

High Court against the order dated 29.10.2011, and vide order dated

26.02.2013, it was dismissed as withdrawn, reserving liberty in favour

of the State to avail the alternative remedy of appeal / revision.

4.Defendant No. 3 / State preferred a revision petition before the State

Government, but it was dismissed vide order dated 01.03.2014 on the

ground that the State Government had no jurisdiction to adjudicate the

revision proceeding.

5.An application was moved by the plaintiffs before the Additional

Collector-cum-Competent Authority under the provisions of Section 144

of CPC to enter their names in the revenue records against the suit

property pursuant to the order passed by the learned Commissioner

dated 29.10.2011, which was pending on the date of filing the civil suit.

WP(227) No. 184/2015 was filed by the plaintiffs seeking direction to

the authority concerned to decide the pending application filed under

Section 144 of CPC expeditiously. The said writ petition was disposed

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of vide order dated 28.07.2015 with a direction to the Additional

Collector, Durg, to decide the said application within 04 months.

6.The plaintiffs came to know that the defendants had proposed to raise

construction on the suit property; therefore, the plaintiff no. 1 moved

applications before the Municipal Corporation, Bhilai, and Municipal

Corporation, Durg on 16.02.2015. On 26.02.2015, a complaint was

made before His Excellency Governor, through Sub-Divisional Officer

(Revenue), Durg, with regard to illegal encroachment and construction

of boundary-wall over the suit property. Legal notices were sent to

defendants No. 1 to 3 on 09.05.2015, and a request was made to stop

the construction work. Defendants No. 1 to 3 received notices on

11.05.2015, but they continued with the construction work, and

thereafter the suit was filed on 21.09.2015.

7.The application moved by the plaintiffs for a temporary injunction was

rejected by the learned II

nd

Civil Judge Class-II, Durg vide order dated

16.06.2015, and against the said order, an appeal was preferred, which

was dismissed vide order dated 31.07.2015.

8.The plaintiffs pleaded that they have the right to the suit property and

they cannot be dispossessed without following the due process of law.

9.Defendant No. 1 filed a written statement and denied the averments

made in the plaint. Defendant No. 1 pleaded that the possession of the

suit land was taken over by the State Government way back in the year

1988, and a bus stand was proposed on the suit land. It is further

pleaded that the construction work was initiated and Rs. 30-40 lacs

was invested. Defendant No. 1 specifically pleaded that the suit land

was declared surplus in a proceeding initiated under the Act of 1976,

and possession was taken over by the State. It is pleaded that physical

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possession was taken over by the Revenue Inspector on 10.06.1988.

Defendant No. 1 admitted that an order was passed by the

Commissioner, Raipur Division, Raipur, in favour of the plaintiffs. A

meeting was convened to float a tender on 21.01.2015 by the then

Collector. The work order was issued in favour of M/s Vimal Kumar

Saxena, Ganjpara, Shakti Choura, Durg on 28.01.2015. It is pleaded

that the order passed by the Commissioner, Raipur Division, Raipur, is

bad in law as the authority concerned had no jurisdiction, and the suit

is barred by limitation as the same has been filed after 28 years.

10.Defendant No. 2 filed a separate written statement and almost

repeated the contentions made by defendant No.1.

11.The learned trial Court framed issues on 24.08.2016.

12.The plaintiffs exhibited the following documents, i.e., Ex. P/1 to Ex.

P/15 before the learned Trial Court:-

Exhibits Details

Ex. P/1Copy of the order passed in WP No 3424/1997 dated

19/10/2010.

Ex. P/2Order passed in Ceiling Case by Additional Collector-Cum-

Competent Authority dated 28/03/2011.

Ex. P/3Order passed by the Additional Commissioner in favour of

the plaintiffs dated 29/10/2011.

Ex. P/4Order passed in WP(227) No. 159 of 2013 filed by the

State, which was dismissed as withdrawn vide order dated

26/02/2013.

Ex. P/5Order passed by Chhattisgarh Government, Department of

Revenue and Disaster Management in Revision Case,

whereby revision preferred by State was dismissed vide

order dated 01/03/2014.

Ex. P/6Order passed in WP(227) No. 184 of 2015, whereby

direction was issued to the respondent authorities to

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decide the application moved by the plaintiffs under

Section 144 of CPC dated 28/07/2015.

Ex. P/7 &

Ex. P/8

Applications moved by Plaintiff No. 1 before the Municipal

Commissioner, Bhilai, and Durg dated 16/02/2015.

Ex. P/9Application moved by Plaintiff No. 1 before His Excellency

Governor, Government of Chhattisgarh dated 26/02/2015.

Ex. P/10Application preferred by Plaintiff No.1 before the Sub-

Divisional Officer (Revenue), Durg dated 26.02.2015.

Ex. P/11Order passed by the learned II

nd

Civil Judge Class-II, Durg

in MJC No. 14/2015 dated 16.06.2015, whereby

application seeking temporary injunction was rejected.

Ex. P/12Order passed by II

nd

Additional District Judge, Durg dated

31/07/2015, whereby appeal preferred by the plaintiffs was

dismissed.

Ex. P/13Written statement filed on behalf of Municipal Corporation

Bhilai in Civil Suit No. 14/2015 dated 26/05/2015.

Ex. P/14Affidavit in support of written statement dated 26/05/2015.

Ex. P/15Registered Power of Attorney executed by the plaintiff in

favour of Plaintiff No. 1 namely Ramanuj Sharma dated

15/10/2003.

13.The defendants exhibited complete order-sheets and documents of

Ceiling Case No. 229-A/70 Years 1977-78 vide Ex. D/1.

14.The plaintiffs examined Kamlesh Kumar Sharma, as PW-1.

15.Defendants examined Surendra Prasad Vaidya, Joint Collector, Durg,

as DW-1.

16.The learned trial court, after appreciation of oral and documentary

evidence, dismissed the suit.

17.Mr. B.P. Sharma, learned counsel appearing for the

appellants/plaintiffs, would argue that vide legal notice dated

09.05.2015, the plaintiffs had called upon the respondents not to raise

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any construction over the suit property, but the respondents ignored the

said notice and completed the construction. He would contend that the

valuable right to property, which has been crystallized as a human

right, was jeopardized by the State Authorities. He would contend that

DW-1 Surendra Prasad Vaidya, in cross-examination, has admitted

that the proceeding to acquire possession of suit property was initiated

under the provisions of Section 34 of the Chhattisgarh Land Revenue

Code or under Order 21 Rule 35 of CPC and before initiating such a

proceeding, a notice to the actual possession holder was mandatory,

but there is no document to establish that such a notice was served

upon late Gajanand Sharma. Mr. B.P. Sharma, counsel for the

appellants, would further argue that the decision taken by the

Competent Authority under the provisions of the Act of 1976 was

challenged by filing WP No. 3424/1997, which was disposed of on

19.10.2010 and the plaintiffs were granted liberty to make a proper

application before the Competent Authority to decide the issue with

regard to possession of land. He would contend that the plaintiffs

approached the Additional Collector, and the application moved by the

plaintiffs was dismissed vide order dated 28.03.2011. He would further

contend that the order dated 28.03.2011 was set aside by the Appellate

Authority, i.e., Additional Commissioner, Raipur Division, Raipur, vide

order dated 29.10.2011, and a direction was issued to the Revenue

Authorities to restore the names of the plaintiffs. He would also submit

that the order passed by the Commissioner attained finality as the

same has not been challenged by the defendants before the

appropriate forum. He would further argue that the Additional

Commissioner, in its order dated 29.10.2011, recorded a specific

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finding that the possession of the suit property was not taken in

accordance with the law and compensation was also not paid. He

would also contend that by virtue of the order dated 29.10.2011, the

plaintiffs got possession of the property and thereafter, in the month of

February, 2015, the defendants started raising construction of a bus

stand on the suit land. Mr. Sharma would fairly submit that the

defendants have completed the construction of the Bus Stand. He

would state that the plaintiffs have sought relief of vacant possession of

the suit property and a declaration of title, along with mesne profits. He

would further state that a huge amount has been invested by the

defendants in the construction of Bus-Stand and thus, the demolition of

the illegal construction would hamper the public exchequer. He would

also state that this Court may modify the relief therein directing the

defendants to acquire the land in accordance with the Land Acquisition

Act, 1894 (hereinafter referred to as the Act of 1894) and to make

payment of compensation. In this regard, he has placed reliance on the

judgment passed by the Hon’ble Supreme Court in the matter of J.

Ganapatha and Others Vs. M/S. N. Selvarajalou Chetty Trust Rep.

By Its Trustees and Others, reported in 2025 LiveLaw (SC) 353.

18.With regard to the entitlement of compensation, Mr. Sharma would

submit that generally, the person whose land is acquired for a public

purpose, the procedure provided under the Act of 1894 has to be

followed by the respondent authorities, but the Act of 1894 has been

repealed by the Act of 2013; therefore, the Act of 1894 cannot be

followed. He would also submit that in the matter of J. Ganapatha

(supra), the Hon’ble Supreme Court, in paragraphs No. 12, 20 and 24,

observed as under:-

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“12.The learned Single Judge holds that the

Plaint Schedule being a vacant plot of land, the

possession follows the title, and the contention of

adverse possession is untenable and does not

arise. It is also noted that, in the peculiar

circumstances of the case, it is unnecessary to

direct Dr. H.B.N. Shetty, Trustee of the Trust, to file

another suit for setting aside the sale in favour of

Defendant Nos. 3 to 6. The crucial circumstance

noted for moulding the relief is that a few executors

have passed away, and the surviving executor is

fairly aged. Therefore, the reliefs have been

moulded as follows:

“56. Plaintiff Trust is not entitled to any decree.

But the remedy is moulded for reasons

mentioned supra, in passing a decree in favour

of Mr. H.B.N. Shetty in his capacity as executor

of Will, for

(i)setting aside the sale deeds in favour of

defendants 3 to 6 by the 1

st

defendant

relating to the suit property (through the 2

nd

defendant as Power Agent).

(ii)permanent injunction restraining the

defendants 3 to 6 from in any manner

dealing with the suit property and

permanent injunction restraining the

defendants from putting up any construction

over the suit property; and for

(iii)a direction to the above executors of Will to

execute the terms found in para 10 of Ex.P-

3 Will of Mrs. Padmini Chandrasekaran

(which was already probated) and as found

therein.”

20.The concept of moulding of relief refers to

the ability of a court to modify or shape a relief

sought by a party in a legal proceeding based on

the circumstances of the case and the facts

established after a full-fledged trial. The principle

enables the court to grant appropriate remedies

even if the relief requested in the pleading is not

exact or could not be considered by the court or

changed circumstances have rendered the relief

obsolete. The court aims that justice is served while

taking into account the evolving nature of a case.

The above road map is pursued by a court based

on the notion of flexibility in relief, equitable

jurisdiction, and is tempered by judicial discretion.

When moulding the relief, the court considers the

issues and circumstances established during the

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full-fledged trial, looks at shortening the litigation,

and then in its perspective, renders complete

justice to the issue at hand. The converse of the

above is that the moulded relief should not take the

aggrieved party by surprise or cause prejudice. The

relief is moulded as an exception and not as a

matter of course.

24.In the Civil Appeal, the consideration is not

whether relief should be moulded or not, but the

consideration would be whether moulding of relief

in the circumstances of the case is tenable or

warrants interference by this Court. The title and

ownership acquired by the late Padmini

Chandrasekaran on a full-fledged trial in the

second round of litigation in the present

proceedings have been accepted by the impugned

judgments. The prayer to have the relief of

declaration in favour of the Trust through the

Trustees was not accepted. The court found that

the Trust cannot claim the relief of declaration vis-

a-vis the Plaint Schedule. The court also found that

the testatrix made an independent disposition in

favour of Vinayagamurthy and his children in the

Plaint Schedule. The executor proved the

entitlement of the late Padmini Chandrasekaran

vis-a-vis the Plaint Schedule. Simultaneously, the

claim of Defendant Nos. 3 to 6 through Defendant

No. 1 is illegal and unsustainable. The findings on

Issue No. 2 in the judgment of the learned Single

Judge enable the moulding of relief even after

answering Issue Nos. 4 and 5 against the first

plaintiff. The issues have been agitated by the

parties concerned in a full-fledged trial; however,

the description of the plaintiff and the narrative in

the plaint for claiming right and title to the Plaint

Schedule is not accepted by the impugned

judgments. While giving effect to these findings, in

our considered view, the learned Single Judge and

the Division Bench have appreciated the effect of

finding on Issue No. 2. The objections of Defendant

Nos. 3 to 6 that Somasundaram Chettiar died and

his LRs were not represented in the sale deed are

found to be factually incorrect by the impugned

judgments. The non-challenge to the court sale and

allowing the sale deed to remain intact would

militate against even a strong plea, which could be

stated in the next round of litigation. As a result, a

fresh round of litigation for the same property, by

applying judicious discretion, is avoided. In other

words, the impugned judgments have exercised

discretion in moulding the relief compatible and

commensurate with the circumstances of the case.

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It is in nobody’s interest except Defendant Nos. 3 to

6 to prolong the litigation by leaving it open to the

parties to get into another round of litigation.

Therefore, the argument of Defendants Nos. 3 to 6

on the moulding of relief by the impugned

judgments is an abstract objection. On careful

scrutiny of preceding circumstances and the

averments established by the parties, we are of the

view that no exception is made out and the

argument of Defendant Nos. 3 to 6 is accordingly

rejected. We are not referring to the precedents on

the point since the core consideration in any given

case is the setting in which the parties agitate the

issues and findings recorded by the court, finally

resulting in the moulding of relief. We may hasten

to add that the court of first instance, while

exercising the discretion to mould the relief,

juxtaposes the consideration with the established

conditions of the original relief becoming

inappropriate or shortening the litigation and

enabling rendering complete justice between the

parties. The scrutiny on the moulding of relief by

the appellate court tests the exercise of discretion

by the trial court, but not in all cases, sit in the very

armchair of the court which moulded the relief and

re-examine every detail unless prejudice and grave

injustice are pointed out against the moulding of

relief. In a further appeal on the moulding of relief,

the examination by the second appellate court

ought to be minimal and not unsettle the settled. In

our considered view, the moulding of relief, in this

case, is to shorten the litigation and not subject the

Plaint Schedule to vagaries of certain and

uncertain documents. We are in complete

agreement with the findings recorded by the

impugned judgments.”

19.Mr. Sharma would further argue that in the matter of Raj Kumar Johri

and Another Vs. State of M.P. and Others, reported in (2002) 3 SCC

732, the Hon’ble Supreme Court held that whenever a deemed date is

given by creating a legal fiction then the court is required to ascertain

for what purpose the fiction is created and after ascertaining this, the

court is to assume all those facts and consequences which are

incidental or inevitable corollaries to give effect to the fiction. The

relevant paragraphs No. 5, 9, and 11 are reproduced herein below:-

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“5.Keeping in view the peculiar facts and

circumstances of the case, the date of notification

under Section 4(1) was postponed to 1-1-1988 for

the purpose of determination of the compensation.

It was observed: (SCC pp. 330-31, para 4)

“Looking at the matter from these

different angles, we have thought it appropriate

to allow the appeal, vacate the judgment of the

High Court and allow the acquisition to remain

subject, however, to the condition that the

notification under Section 4(1) of the Act issued

in 1985 shall be deemed to be one dated 1-1-

1988 and the market value of the land for the

acquisition shall be determined with reference

to that date. We would like to point out that the

potential value of the land has substantially

enhanced on account of the improvements

made pursuant to the notification which had

been assailed. We have directed the deemed

date of the notification under Section 4(1) to be

preponed (sic postponed) by almost three years

and during this period the appellant has brought

about the bulk of the improvements in the

neighbourhood. We direct that 25 per cent of

the potential value of the land relatable to the

improvements made by the appellant would

only be available to the respondents, but in

fixing market value all other legitimate

considerations shall be taken into account. We

make it clear that we have no intention to

extend the benefit under Section 28-A of the Act

to the owners of the lands already acquired

under the notification of 1980 or 1985 on the

basis of our direction that the respondents’

lands shall be deemed to have been notified

under Section 4(1) of the Act on 1-1-1988. In

fact our order must be deemed to be a separate

notification for acquisition and, therefore, it

would not be a common notification for the

purpose of Section 28-A of the Act. The

respondents should, therefore, be entitled to

this benefit that instead of the notification under

Section 4(1) of the Act being of 1985, it shall be

treated to be of 1-1-1988. The Appellate

Authority is now entitled to take position (sic

possession) in accordance with law subject to

the valuation of the compensation in the

manner indicated.

9.Shri Siddhartha Sankar Ray, learned Senior

Advocate appearing for the appellants contended

that keeping in view the scheme of the Act, the

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Authorities were required to issue a fresh

declaration under Section 6 of the Act within one

year of the deemed date of notification under

Section 4(1) and an award within two years from

the date of declaration under Section 6. And if the

declaration under Section 6 is taken from the date

of rendering of judgment by this Court i.e. 14-11-

1991 then failure to make the award within two

years from that date resulted in the lapsing of the

entire acquisition proceedings.

11.This Court in Mancheri Puthusseri Ahmed v.

Kuthiravattam Estate Receiver, (1996) 6 SCC 185

has held that whenever a deemed date is given by

creating a legal fiction then the court is required to

ascertain for what purpose the fiction is created

and after ascertaining this, the court is to assume

all those facts and consequences which are

incidental or inevitable corollaries to give effect to

the fiction. While construing the fiction it is not open

to the court to extend the same beyond the

purpose for which it was created. It cannot also be

extended by importing another fiction. The deemed

date to the notification under Section 4 was given

by creating a legal fiction for giving enhanced

compensation and it has to be limited to that only. It

cannot be extended beyond it, leading to the

issuance of fresh declaration under Section 6 or

giving a fresh award under Section 11.”

20.Mr. Sharma would further contend that in the matter of State of

Madhya Pradesh and Another Vs. Medha Patkar and Others,

reported in (2011) 8 SCC 55, the Hon’ble Supreme Court accepted the

suggestion of the State and directed the Collector to reconsider the

market value of the property as if Section 4 notification had been

issued on 2-8-2011, which was the date on which the judgment was

pronounced in the matter by the Hon’ble Supreme Court. The relevant

paragraph No. 29 is reproduced below:-

“29.The State has come forward with the most

appropriate and valuable suggestion, thus, we

accept the same. In view of the above, the Land

Acquisition Collector is directed to reconsider the

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market value of (sic the acquired land of) canal-

affected persons as if Section 4 notification in

respect of the same has been issued on date i.e. 2-

8-2011 and make the supplementary awards in

accordance with the provisions of the 1894 Act.

Such concession extended by the State would be

over and above the relief granted by this Court vide

order dated 5-5-2010 as clarified/modified

subsequently, as explained hereinabove and it is

further clarified that further canal work would be

subject to clearance/direction which may be given

by MoEF.”

21.Mr. Sharma would also contend that in the matter of Bernard Francis

Joseph Vaz and Others Vs. Government of Karnataka and Others,

reported in (2025) 7 SCC 580, the Hon’ble Supreme Court has held

that the land of the petitioner was acquired without following the due

process of law, and the action of the respondents was in contravention

of the spirit of the constitutional scheme of Article 300-A. He would

contend that the relief sought for in the writ petition was moulded by

the Hon’ble Supreme Court. The relevant paragraphs No. 36, 38, 39,

41, 42, and 48 are reproduced below:-

“36.The relief, therefore, granted by this Court in

the aforesaid case was moulded in the form of para

15, which reads as under: (Competent Authority v.

Barangore Jute Factory case, (2005) 13 SCC 477,

SCC pp. 488-89)

“15. Normally, compensation is

determined as per the market price of land on

the date of issuance of the notification regarding

acquisition of land. There are precedents by way

of judgments of this Court where in similar

situations instead of quashing the impugned

notification, this Court shifted the date of the

notification so that the landowners are

adequately compensated. Reference may be

made to:

(a)Ujjain Vikas Pradhikaran v. Raj Kumar Johri,

(1992) 1 SCC 328

16

(b)Gauri Shankar Gaur v. State of U.P., (1994) 1

SCC 92

(c)Haji Saeed Khan v. State of U.P, (2001) 9

SCC 513

In that direction the next step is what should be

the crucial date in the facts of the present case

for determining the quantum of compensation.

We feel that the relevant date in the present

case ought to be the date when possession of

the land was taken by the respondents from the

writ petitioners. This date admittedly is 19-2-

2003. We, therefore, direct that compensation

payable to the writ petitioners be determined as

on 19-2-2003, the date on which they were

deprived of possession of their lands. We do not

quash the impugned notification in order not to

disturb what has already taken place by way of

use of the acquired land for construction of the

national highway. We direct that the

compensation for the acquired land be

determined as on 19-2-2003 expeditiously and

within ten weeks from today and the amount of

compensation so determined, be paid to the writ

petitioners after adjusting the amount already

paid by way of compensation within eight weeks

thereafter. The claim of interest on the amount of

compensation so determined is to be decided in

accordance with law by the appropriate

authority. We express no opinion about other

statutory rights, if any, available to the parties in

this behalf and the parties will be free to exercise

the same, if available. The compensation as

determined by us under this order along with

other benefits, which the respondents give to

parties whose lands are acquired under the Act,

should be given to the writ petitioners along with

what has been directed by us in this judgment.”

(emphasis supplied)

38.In Tukaram Kana Joshi v. MIDC, (2013) 1

SCC 353, the land situated in Village Shirwame,

Taluka and District Thane, stood notified under

Section 4 of the 1894 LA Act on 6-6-1964 for

establishment of Ulhas Khore Project i.e. a project

for industrial development. However, no

subsequent proceedings were taken up thereafter,

and the acquisition proceedings lapsed. The

respondent Authorities therein realised, in 1981,

that grave injustice had been done to the

appellants therein and so a fresh Notification

under Section 4 of the 1894 LA Act was issued on

17

14-5-1981. However, no further proceedings were

initiated and therefore, such proceedings also died

a natural death. In the aforesaid case, when the

appellants therein reached this Court, this Court in

unequivocal terms observed that even after the

right to property ceased to be a fundamental right,

taking possession of or acquiring the property of a

citizen most certainly tantamounts to deprivation

and such deprivation can take place only in

accordance with “law”, as the said word has

specifically been used in Article 300-A of the

Constitution. In para 22 of the aforesaid case, this

Court observed that the State concerned therein

came forwarded with a welcome suggestion stating

that in order to redress the grievances of the

appellants therein, the respondent Authorities

would notify the land in dispute under Section 4 of

the 1894 LA Act and that the market value of the

land in dispute would be assessed as it prevails on

the date on which Section 4 notification is again

published in the Official Gazettee.

39.In the aforesaid case of Tukaram Kana Joshi,

This Court observed that the right to property is

now considered to be not only a constitutional or a

statutory right but also a “human right”. It was

further observed that human rights are considered

in the realm of individual rights, such as right to

health, right to livelihood, right to shelter and

employment, etc. This Court further observed that

now, however, human rights are gaining an even

greater multifaceted dimension and the right to

property is considered very much to be a part of

such new dimension.

41.This Court in Vidya Devi v. State of H.P.,

(2020) 2 SCC 569, while surveying the earlier

judgments on the issue, has observed thus: (SCC

pp. 572-75, para 12)

12. … 12.1. The appellant was forcibly

expropriated of her property in 1967, when the

right to property was a fundamental right

guaranteed by Article 31 in Part III of the

Constitution. Article 31 guaranteed the right to

private property, which could not be deprived

without due process of law and upon just and

fair compensation.

12.2. The right to property ceased to be a

fundamental right by the Constitution (Forty-

fourth Amendment) Act, 1978, however, it

continued to be a human right in a welfare

18

State, and a constitutional right under Article

300-A of the Constitution. Article 300-A

provides that no person shall be deprived of

his property save by authority of law. The

State cannot dispossess a citizen of his

property except in accordance with the

procedure established by law. The obligation

to pay compensation, though not expressly

included in Article 300-A, can be inferred in

that article.

12.3. To forcibly dispossess a person of his

private property, without following due process

of law, would be violative of a human right, as

also the constitutional right under Article 300-A

of the Constitutional. Reliance is placed on the

judgment in Hindustan Petroleum Corpn. Ltd.

v. Darius Shapur Chenai,(2005)7 SCC 627,

wherein this Court held that: (SCC p. 634,

para 6)

‘6. … Having regard to the provisions

contained in Article 300-A of the

Constitution, the State in exercise of its

power of “eminent domain” may interfere

with the right of property of a person by

acquiring the same but the same must be

for a public purpose and reasonable

compensation therefor must be paid.’

12.4. In Padmamma v. S. Ramakrishna

Reddy, (2008) 15 SCC 517, this Court held

that: (SCC p. 526, para 21)

‘21. If the right of property is a

human right as also a constitution right,

the same cannot be taken away except

in accordance with law. Article 300-A of

the Constitution protects such right. The

provisions of the Act seeking to divest

such right, keeping in view of the

provisions of Article 300-A of the

Constitution of India, must be strictly

construed.

12.5. In Delhi Airtech Services (P) Ltd. v.

State of U.P., (2011) 9 SCC 354, this Court

recognised the right to property as a basic

human right in the following words: (SCC p.

379, para 30)

‘30. It is accepted in every jurisprudence

and by different political thinkers that

19

some amount of property right is an

indispensable safeguard against tyranny

and economic oppression of the

Government. Jefferson was of the view

that liberty cannot long subsist without

the support of property. “Property must

be secured, else liberty cannot subsist”

was the opinion of John Adams. Indeed

the view that property itself is the seed-

bed which must be conserved if other

constitutional values are to flourish, is the

consensus among political thinkers and

jurists.’

12.6.In Jilubhai Nanbhai Khachar v. State of

Gujarat, 1995 Supp (1) SCC 596, this Court

held as follows: (SCC p. 627, para 48)

‘48. .. In other words, Article 300-A

only limits the powers of the State that no

person shall be deprived of his property

save by authority of law. There has to be

no deprivation without any sanction of

law. Deprivation by any other mode is not

acquisition or taking possession under

Article 300-A. In other words, if there is

no law, there is no deprivation.’

12.7 In this case, the appellant could not have

been forcibly dispossessed of her property

without any legal sanction, and without

following due process of law, and depriving

her payment of just compensation, being a

fundamental right on the date of forcible

dispossession in 1967.

12.8. The contention of the State that the

appellant or her predecessors had “orally”

consented to the acquisition is completely

baseless. We find complete lack of authority

and legal sanction is compulsorily divesting

the appellant of her property by the State.

12.9. In a democratic polity governed by the

rule of law, the State could not have deprived

a citizen of their property without the sanction

of law. Reliance is placed on the judgment of

this Court in Tukaram Kana Joshi v. MIDC,

(2013) 1 SCC 353 wherein it was held that the

State must comply with the procedure for

acquisition, requisition, or any other

permissible statutory mode. The State being a

welfare State governed by the rule of law

20

cannot arrogate to itself a status beyond what

is provided by the Constitution.

12.10. This Court in State of Haryana v.

Mukesh Kumar, (2011) 10 SCC 404 held that

the right to property is now considered to be

not only a constitutional or statutory right, but

also a human right. Human rights have been

considered in the realm of individual rights

such as right to shelter, livelihood, health,

employment, etc. Human rights have gained a

multi-faceted dimension.

12.13. In a case where the demand for justice

is so compelling, a constitutional court would

exercise its jurisdiction with a view to promote

justice, and not defeat it. ( P.S.

Sadasivaswamy v. State of T.N., (1975) 1

SCC 152)

(emphasis in original)

42.In Ultra-Tech Cement Ltd. v. Mast Ram,

(2025) 1 SCC 798, this Court observed thus: (SCC

pp. 820-22, paras 46-53)

“D. Role of the State under Article 300-A of the

Constitution

46. The right to property in our country is a net

of intersecting rights which has been explained

by this Court in Kolkata Municipal Corpn. v.

Bimal Kumar Shah, (2024) 10 SCC 533. A

Division Bench of this Court identified seven

non-exhaustive sub-rights that accrue to a

landowner when the State intends to acquire

his / her property. The relevant observations of

this Court under the said judgment are

reproduced below: (SCC pp. 550-51, para 30)

‘30. … Seven such sub-rights can be

identified, albeit non-exhaustive. These are:

(i)The duty of the State to inform the person

that it intends to acquire his property – the

right to notice,

(ii)The duty of the State to hear objections to

the acquisition – the right to be heard,

(iii)The duty of the State to inform the person

of its decision to acquire – the right to a

reasoned decision,

21

(iv)The duty of the State to demonstrate that

the acquisition is for public purpose – the

duty to acquire only for public purpose,

(v)The duty of the State to restitute and

rehabilitate – the right of restitution or fair

compensation,

(vi)The duty of the State to conduct the

process of acquisition efficiently and within

prescribed timelines of the proceedings –

the right to an efficient and expeditious

process, and

(vii)The final conclusion of the proceedings

leading to vesting – the right of conclusion.’

This Court held that a fair and reasonable

compensation is the sine qua non for any

acquisition process.

47. In Roy Estate v. State of Jharkhand, (2009)

12 SCC 194; Union of India v. Mahendra Girji,

(2010) 15 SCC 682 and Mansaram v. S.P.

Pathak, (1984) 1 SCC 125 , this Court

underscored the importance of following

timelines prescribed by the statutes as well as

determining and disbursing compensation

amount expeditiously within reasonable time.

48. The subject land came to be acquired by

invoking special powers in cases of urgency

under Section 17(4) of the 1894 Act. The

invocation of Section 17(4) extinguishes the

statutory avenue for the landowners under

Section 5-A to raise objections to the acquisition

proceedings. These circumstances impose

onerous duty on the State to facilitate justice to

the landowners by providing them with fair and

reasonable compensation expeditiously. The

seven sub-rights of the landowners identified by

this Court in Kolkata Municipal Corpn. are

corresponding duties of the State. We regret to

note that the amount of Rs.3,05,31,095

determined as compensation under the

Supplementary award has not been paid to the

landowners for a period of more than two years

and the State of Himachal Pradesh as a welfare

State has made no effort to get the same paid at

the earliest.

49. This Court has held in Dharnidhar Mishra v.

State of Bihar, (2024) 10 SCC 605 and State of

22

Haryana v. Mukesh Kumar that the right to

property is now considered to be not only a

constitutional or statutory right, but also a human

right. This Court held in Tukaram Kana Joshi v.

MIDC that in a welfare State, the statutory

authorities are legally bound to pay adequate

compensation and rehabilitate the persons

whose lands are being acquired. The non-

fulfilment of such obligation under the garb of

industrial development, is not permissible for any

welfare State as that would tantamount to

uprooting a person and depriving them of their

constitutional/human right.

50. That time is of the essence in determination

and payment of compensation is also evident

from this Court’s judgment is Kukreja

Construction Co. v. State of Maharashtra, (2024)

14 SCC 594 wherein it has been held that once

the compensation has been determined, the

same is payable immediately without any

requirement of a representation or request by the

landowners and a duty is cast on the State to

pay such compensation to the land losers,

otherwise there would be a breach of Article 300-

A of the Constitution.

51. In the present case, the Government of

Himachal Pradesh as a welfare State ought to

have proactively intervened in the matter with a

view to ensure that the requisite amount towards

compensation is paid at the earliest. The State

cannot abdicate its constitutional and statutory

responsibility of payment of compensation by

arguing that its role was limited to initiating

acquisition proceedings under the MOU signed

between the appellant. JAL and itself. We find

that the delay in the payment of compensation to

the landowners after taking away ownership of

the subject land from them is in contravention to

the spirit of the constitutional scheme of Article

300-A and the idea of a welfare State.

52. Acquisition of land for public purpose is

undertaken under the power of eminent domain

of the government much against the wishes of

the owners of the land which gets acquired.

When such a power is of the owners of the land

which gets acquired. When such a power is

exercised, it is coupled with a bounden duty and

obligation on the part of the government body to

ensure that the owners whose lands get

acquired are paid compensation/awarded

23

amount as declared by the statutory award at the

earliest.

53. The State Government, in peculiar

circumstances, was expected to make the

requisite payment towards compensation to the

landowners from its own treasury and should

have thereafter proceeded to recover the same

from JAL. Instead of making the poor

landowners to run after the powerful corporate

houses, if should have compelled JAL to make

necessary payment.”

(emphasis in original and supplied)”

48.It will also be appropriate for the purpose of

the present discussion to refer to the Judgment of

this Court in K. Krishna Reddy v. Collector (LA),

(1988) 4 SCC 163, specifically in para 12, it was

observed thus: (SCC pp. 166-67)

“12. We can very well appreciate the

anxiety and need of claimants to get

compensation here and now. No matter what it

is. The lands were acquired as far back in 1977.

One decade has already passed. Now the

remand means another round of litigation. There

would be further delay in getting the

compensation. After all money is what money

buys. What the claimants could have bought with

the compensation in 1977 cannot do in 1988.

Perhaps, not even one half of it. It is a common

experience that the purchasing power of rupee is

dwindling. With rising inflation, the delayed

payment may lose all charms and utility of the

compensation. In some cases, the delay may be

detrimental to the interest of claimants. The

Indian agriculturists generally have no avocation.

They totally depend upon land. If uprooted, they

will find themselves nowhere. They are left high

and dry. They have no savings to draw. They

have nothing to fall back upon. They know no

other work. They may even face starvation

unless rehabilitated. In all such cases, it is of

utmost importance that the award should be

made without delay. The enhanced

compensation must be determined without loss

of time. The appellate power of remand, at any

rate ought not to be exercised lightly. It shall not

be resorted to unless the award is wholly

unintelligible. It shall not be exercised unless

there is total lack of evidence. It remand is

imperative, and if the claim for enhanced

compensation is tenable, it would be proper for

24

the appellate court to do modest best to mitigate

hardships. The appellate court may direct some

interim payment to claimants subject to

adjustment in the eventual award.”

22.Mrs. Fouzia Mirza, learned Senior Advocate appearing for the

respondents / defendants No. 1 and 2, would oppose. Mrs. Fouzia

Mirza leading the arguments would submit that the suit filed by the

plaintiffs has been dismissed by the learned Trial Court as the plaintiffs

failed to prove that the suit land was in their ownership and possession

and possession was not taken over by the State-respondent /

defendant No. 3. She would argue that a notification under Section

10(3) of the Act of 1976 was issued on 25.04.1988 and possession

was taken over on 10.06.1988. She would argue that in WP No.

3424/1997, the petitioners were granted liberty and the matter was

sent to the Competent Authority to adjudicate on the question with

respect to the possession of the suit property, and it was decided in

favour of the State vide order dated 28.03.2011. She would further

submit that the suit property is still recorded in the name of the State in

the revenue records. Learned Senior Counsel would also submit that

an order was passed by the Additional Commissioner, Raipur Division,

Raipur, dated 29.10.2011, but the Act of 1976 was repealed on

22.03.1999 by the Urban Land (Ceiling and Regulation) Repeal Act,

1999. She would contend that Section 4 of the Repeal Act, 1999

delineates that except the proceeding relating to Sections 11, 12, 13

and 14 of the Act of 1976, all other proceedings would abate and as

per the saving clause, the repeal of the principal Act would not affect

the vesting of any vacant land under Section 10 (3), whose possession

25

has already been taken over by the State. She would further contend

that the Commissioner or Additional Commissioner had no authority of

law to adjudicate and decide the appeal preferred by the plaintiffs;

therefore, the order passed by the Commissioner dated 29.10.2011

was void ab initio. She would also contend that the order dated

29.10.2011 was challenged by filing WP(227) No. 159/2013 before the

High Court, which was dismissed as withdrawn, and a liberty was

granted to avail the alternative remedy available under the law. She

would argue that the order dated 29.10.2011 was challenged by filing

an appeal before the State Government, but it was dismissed for want

of jurisdiction, and again liberty was granted to prefer an appeal /

revision before the Board of Revenue. She would further argue that a

revision was preferred before the Board of Revenue on 26.05.2015,

but its outcome is not known. She would also argue that the revision

preferred by the State was admitted by the Board of Revenue, and the

said order was challenged by the plaintiffs before the High Court. She

has placed reliance on the judgments passed by the Hon’ble Supreme

Court in the matter of S. Shivraj Reddy (Died) Thr His LRs. and

Another Vs. S. Raghuraj Reddy and Others, 2024 INSC 427

(Passed in Civil Appeal @ SLP (Civil) No (s). 4237 of 2015, Dated

May 16, 2024).

23.Mrs. Fouzia Mirza, learned Senior Advocate, would submit that the

Urban Public Transport Society, Durg, has already completed the

construction of a Bus-Stand over the suit property. She would contend

that the suit was filed by the plaintiffs in the year 2015, with a delay of

28 years, and thus, the suit is barred by limitation. She would further

contend that the plaintiffs are not in possession, and they have not

26

sought any consequential relief. She would also contend that the

plaintiffs have not challenged the notification issued under Section

10(1) of the Act of 1976 dated 04.03.1988, under Section 10(3) dated

22.04.1988, and the order declaring the land of the plaintiffs surplus

dated 25.04.1988 and therefore, the suit filed by the plaintiffs is not

maintainable. She has further placed reliance on the judgment passed

by the Hon’ble Supreme Court in the matter of State of M.P. Vs.

Ghisilal, in Civil Appeal No. 2153 of 2012, Dated November 22,

2021.

24.Mrs. Fouzia Mirza, learned Senior Counsel, would argue that after the

Repeal of the Ceiling Act 1976, the order, if any, passed by the

Additional Commissioner would be void ab initio. In this regard, she

has placed reliance on the judgment passed by the Hon’ble Supreme

Court in the matter of The State of Haryana Vs. The Hindustan

Construction Company Limited, passed in Civil Appeal No(s).

10792-10794 of 2011, Dated September 15, 2017. She would contend

that any order passed by the authority without jurisdiction is nullity and

reliance has been placed in the matter of Gurnam Singh (D) Thr. Lrs.

& Ors. Vs. Gurbachan Kaur (D) By Lrs. & Ors., passed by the

Hon’ble Supreme Court in Civil Appeal No. 5671 of 2017.

25.Mrs. Fouzia Mirza, learned Senior Advocate, would state that a prayer

for moulding of relief cannot be granted as the suit has been filed with

a specific pleading and moulding of relief is not permissible in civil law.

The relief can only be moulded when it shortens the litigation between

the parties, but such a prayer should not be taken by the party,

surprisingly.

27

26.Mrs. Fouzia Mirza, learned Senior Advocate, would contend that PW-1

Kamlesh Kumar Sharma has admitted in his evidence that the suit land

was recorded in the name of the State in the year 1988, and all the

proceedings pertaining to the Ceiling Act were conducted while his

father, late Gajanand Sharma, was alive. Lastly, she contended that the

land has already been handed over to Durg Bhilai Urban Society vide

Gazette notification dated 20.05.2014, and the construction of the Bus-

Stand has already been completed.

27.I have heard learned counsel for the parties, considered their rival

submissions made herein above and perused the records of the Courts

below with utmost circumspection.

28.The question for determination would be -

(i) Whether the learned trial Court rightly dismissed the suit filed by the

plaintiffs, ignoring the order passed by the learned Additional

Commissioner dated 29.10.2011, and whether the relief sought for by

the plaintiffs can be moulded?

29.In the matter of Ghisilal (supra), the suit filed by the plaintiff was held

to be belated and not maintainable on the ground that notifications

were issued under Section 10 of the Act of 1976, and thereafter the

subject land was utilized for the construction of houses for the poor by

spending huge amounts. The plaintiff therein failed to challenge the

order passed by the competent authority declaring the land as surplus

land. The relevant paragraph No. 7 is reproduced herein below:-

“7.The aforesaid impugned judgment is

questioned in this appeal mainly on the ground that

after necessary notifications were issued under

Section 10 of the ULC Act, appellant has taken

possession and utilised the subject land for

construction of houses for the poor by spending

huge amounts. It is the case of the appellant that

28

the respondent has not questioned the orders

passed by the competent authority declaring the

land as surplus land, it is not open to seek

declaration by the respondent – plaintiff as prayed

for. A specific ground was raised in the grounds of

appeal that after taking possession, land was

recorded in the name of the Government and the

surplus land was allotted to Bhopal Development

Authority for the benefit of slum dwellers and the

said Authority has already constructed 100

(hundred) houses on the land by spending about

Rs.1.50 Crores by the time the appeal was

preferred to this Court. It is also the case of the

appellant that relief as sought in the suit is a

belated attempt, though such suit is not

maintainable in law. ”

30.In the present case, the orders passed by the authorities under the Act

of 1976 were challenged by the plaintiffs by filing WP No. 3424/1997,

and it was disposed of vide order dated 19.10.2010, reserving liberty in

favour of the plaintiffs to move an application before the Competent

Authority to decide the issue with regard to possession. Thus, the

decision taken by the Competent Authority under the Act of 1976 was

challenged by the plaintiffs. The application so moved by the plaintiffs

was rejected by the Additional Collector vide order dated 28.03.2011,

which was challenged by the plaintiffs by filing an appeal before the

Additional Commissioner and the said appeal was allowed vide order

dated 29.10.2011 and, therefore, the facts of the present case are

different from the facts of the cited case.

31.In the matter of Hindustan Construction Company Ltd. (supra), the

Hon’ble Supreme Court held that there were no proceedings pending

against the respondent under the Act of 1973, when the new Act came

into force on 01.04.2003. The suo-moto revisional power was

exercised by the revisional authority thereafter. The repeal and saving

clause, Section 61 of the Act 2003, saved only pending proceedings

29

under the repealed Act. Thus, it was held that after repeal, suo-moto

revisional power under Section 40 of the former Act was not

sustainable. The relevant paragraph No. 10 is reproduced herein

below:-

“10.The assessment under the Act of 1973

having been completed and refund ordered, the

exercise of suo-moto revisional powers under

Section 40 of the same after repeal was clearly

unsustainable in view of the contrary intention

expressed under Section 61 of the Act of 2003,

saving only pending proceedings. Section 4 of the

Punjab General Clauses Act, 1858 will have no

application in view of the contrary intendment

expressed in Section 61 of the repealing Act. Had a

contrary intention not been expressed, the issues

arising for consideration would have been entirely

different. The observations in State of Punjab vs.

Mohar Singh Pratap Singh, (1955) 1 SCR 893, as

extracted below are considered relevant:-

“8…….Whenever there is a repeal of an

enactment, the consequences laid down in

Section 6 of the General Clauses Act will

follow unless, as the section itself says, a

different intention appears. In the case of a

simple repeal there is scarcely any room for

expression of a contrary opinion. But when the

repeal is followed by fresh legislation on the

same subject we would undoubtedly have to

look to the provisions of the new Act, but only

for the purpose of determining whether they

indicate a different intention. The line of

enquiry would be, not whether the new Act

expressly keeps alive old rights and liabilities

but whether it manifests an intention to

destroy them…..”

The observations in Gammon India Ltd. (supra) at

paragraph 73 are to the same effect.”

32.In the case at hand, the plaintiffs challenged the orders passed by the

Competent Authority under the Act of 1976 by filing WP No. 3424/1997,

which was entertained, and finally, liberty was granted to the plaintiffs

to move an application before the Competent Authority to decide on the

30

issue with regard to possession. The Repeal Act came into force on

10.03.2000, and prior to the said date, the decision taken by the

Competent Authority was challenged. Thus, the facts of the cited case

are different from the facts of the present case.

33.In the matter of Gurnam Singh(D) (supra), the Hon’ble Supreme Court

has held that it is a fundamental principle of law that a decree passed

by the Court, if it is a nullity, its validity can be questioned in any

proceeding, including in execution proceedings or even in collateral

proceedings. The relevant paragraph No. 22 is reproduced herein in

below:-

“22)It is a fundamental principle of law laid down

by this Court in Kiran Singh’s case (supra) that a

decree passed by the Court, if it is a nullity, its

validity can be questioned in any proceeding

including in execution proceedings or even in

collateral proceedings whenever such decree is

sought to be enforced by the decree holder. The

reason is that the defect of this nature affects the

very authority of the Court in passing such decree

and goes to the root of the case. This principle, in

our considered opinion, squarely applies to this

case because it is a settled principle of law that the

decree passed by a Court for or against a dead

person is a “nullity” (See-N. Jayaram Reddy &

Anr. Vs. Revenue Divisional Officer & Land

Acquisition Officer, Kurnool, (1979) 3 SCC 578,

Ashok Transport Agency vs. Awadhesh Kumar

& Anr., (1998) 5 SCC 567 and Amba Bai & Ors.

Vs. Gopal & Ors., (2001) 5 SCC 570).”

34.It is true that any order or judgment passed by any authority or the

court having no jurisdiction is void, but, at the same time, it is also

settled legal proposition that even if an order is void, it requires to be

so declared by a competent forum, and it is not permissible for any

person to ignore the same, merely because in his opinion, the order is

void. The Hon’ble Supreme Court in the matter of Krishnadevi

31

Malchand Kamathia and Others Vs. Bombay Environmental

Action Group and Others, reported in (2011) 3 SCC 363, in

paragraphs No. 16, 17, 18, and 19, held as under:-

“16.It is a settled legal proposition that even if an

order is void, it requires to be so declared by a

competent forum and it is not permissible for any

person to ignore the same merely because in his

opinion the order is void. In State of Kerala v. M.K.

Kunhikannan Nambiar Manjeri Manikoth Naduvil,

(1996) 1 SCC 435, Tayabbhai M. Bagasarwalla v.

Hind Rubber Industries (P) Ltd., (1997) 3 SCC 443,

M. Meenakshi v. Metadin Agarwal, (2006) 7 SCC

470 and Sneh Gupta v. Devi Sarup, (2009) 6 SCC

194, this Court held that whether an order is valid

or void, cannot be determined by the parties. For

setting aside such an order, even if void, the party

has to approach the appropriate forum.

17.In State of Punjab v. Gurdev Singh, (1991) 4

SCC 1 this Court held that a party aggrieved by the

invalidity of an order has to approach the court for

relief of declaration that the order against him is

inoperative and therefore, not binding upon him.

While deciding the said case, this Court placed

reliance upon the judgment in Smith v. East Elloe

RDC, 1956 AC 736, wherein Lord Radcliffe

observed: (AC pp. 769-70)

“… An order, even if not made in good

faith, is still an act capable of legal

consequences. It bears no brand of invalidity

[on] its forehead. Unless the necessary

proceedings are taken at law to establish the

cause of invalidity and to get it quashed or

otherwise upset, it will remain as effective for

its ostensible purpose as the most impeccable

of orders.”

18.In Sultan Sadik v. Sanjay Raj Subba, (2004)

2 SCC 377, this Court took a similar view observing

that once an order is declared non est by the court

only then the judgment of nullity would operate

erga omnes i.e. for and against everyone

concerned. Such a declaration is permissible if the

court comes to the conclusion that the author of the

order lacks inherent jurisdiction/competence and

therefore, it comes to the conclusion that the order

suffers from patent and latent invalidity.

32

19.Thus, from the above it emerges that even if

the order/notification is void/voidable, the party

aggrieved by the same cannot decide that the said

order/notification is not binding upon it. It has to

approach the court for seeking such declaration.

The order may be hypothetically a nullity and even

if its invalidity is challenged before the court in a

given circumstance, the court may refuse to quash

the same on various grounds including the

standing of the petitioner or on the ground of delay

or on the doctrine of waiver or any other legal

reason. The order may be void for one purpose or

for one person, it may not be so for another

purpose or another person.”

35.The Coordinate Bench in the matter of State of Chhattisgarh and

Another Vs. Smt. Indrawati and Others reported in ILR 2019

Chhattisgarh 34, while dealing with the similar issue in para 16, 17,

18, 19 held as under :-

“16. It is well settled law that even a void order or

decision rendered between parties cannot be said

to be non-existent in all cases and in all situations.

Ordinarily, such an order will, in fact, be effective

inter partes until it is successfully avoided or

challenged in a higher forum.

17. The Supreme Court in the matter of State of

Kerala v. M.K. Kunhikannan Nambiar Manjeri

Manikoth, Naduvil (Dead) and others (1996) 1 SCC

435 : (1996 AIR SCW 301) has clearly held that

even a void order or decision rendered between

parties will be effective inter partes until it is

successfully avoided by observing as under: -

“7. … even a void order or decision rendered

between parties cannot be said to be non-

existent in all cases and in all situations.

Ordinarily, such an order will, in fact, be effective

inter partes until it is successfully avoided or

challenged in a higher forum. Mere use of the

word 'void' is not determinative of its legal

impact. The word 'void' has a relative rather than

an absolute meaning. It only conveys the idea

that the order is invalid or illegal. It can be

avoided. …”

18. The Supreme Court following the principle of

law laid down in M.K. Kunhikannan Nambiar's case

(1996 AIR SCW 301) (supra), in the matter of

33

Krishnadevi Malchand Kamathia and others v.

Bombay Environmental Action Group and others

(2011) 3 SCC 363 :(AIR 2011 SC 1140) again held

that whether an order is valid or void, cannot be

determined by the parties. For setting aside such

an order, even if void, the party has to approach

the appropriate forum. Their Lordships of the

Supreme Court observed in paragraphs 17, 18 and

19 as under: -

“17. In State of Punjab v. Gurdev Singh (1991) 4

SCC 1 : (AIR 1991 SC 2219) this Court held that

a party aggrieved by the invalidity of an order

has to approach the court for relief of declaration

that the order against him is inoperative and

therefore, not binding upon him. While deciding

the said case, this Court placed reliance upon

the judgment in Smith v. East Elloe RDC, 1956

AC 736 : (1956) 2 WLR 888 : (1956) 1 All ER

855, wherein Lord Radcliffe observed: (AC pp.

769-70)

"… An order, even if not made in good faith, is

still an act capable of legal consequences. It

bears no brand of invalidity [on] its forehead.

Unless the necessary proceedings are taken at

law to establish the cause of invalidity and to get

it quashed or otherwise upset, it will remain as

effective for its ostensible purpose as the most

impeccable of orders."

18. In Sultan Sadik v. Sanjay Raj Subba (2004) 2

SCC 377 : (AIR 2004 SC 1377), this Court took a

similar view observing that once an order is

declared non est by the court only then the

judgment of nullity would operate erga omnes

i.e. for and against everyone concerned. Such a

declaration is permissible if the court comes to

the conclusion that the author of the order lacks

inherent jurisdiction/competence and therefore, it

comes to the conclusion that the order suffers

from patent and latent invalidity.

19. Thus, from the above it emerges that even if

the order/notification is void/voidable, the party

aggrieved by the same cannot decide that the

said order/notification is not binding upon it. It

has to approach the court for seeking such

declaration. The order may be hypothetically a

nullity and even if its invalidity is challenged

before the court in a given circumstance, the

court may refuse to quash the same on various

grounds including the standing of the petitioner

or on the ground of delay or on the doctrine of

waiver or any other legal reason. The order may

34

be void for one purpose or for one person, it may

not be so for another purpose or another

person.”

19. Similarly, in the matter of Shyam Sundar Sarma

v. Pannalal Jaiswal and others (2005) 1 SCC 436 :

(AIR 2005 SC 226), a three-Judge Bench of the

Supreme Court has clearly held that an appeal

which is dismissed for default or as barred by

limitation is nevertheless an appeal in the eyes of

the law for all purposes and a decision in the

appeal and the same cannot be treated on par with

non-filing of an appeal or withdrawal of appeal.”

36.Thus, the order passed by the Additional Commissioner, Raipur, dated

29.10.2011, cannot be ignored on the ground that it was passed by the

authority having no jurisdiction. The order dated 29.10.2011 is still in

existence as the same has not been reversed, rescinded or modified

by any Court of law. The Additional Commissioner, Raipur, vide order

dated 29.10.2011, set aside the order passed by the Additional

Collector cum Competent Authority and restored the possession of the

plaintiffs.

37.With regard to moulding of relief, the Hon’ble Supreme Court in the

matter J. Ganapatha (supra) held that the concept of moulding of

relief refers to the ability of a court to modify or shape a relief sought by

a party in a legal proceeding. The principle enables the court to grant

appropriate remedies even if the relief requested in the pleading is not

exact or could not be considered by the court, or changed

circumstances have rendered the relief obsolete. Looking to the facts

of the case, this Court deems it proper to mould the relief from vacant

possession of the suit property to the grant of adequate compensation.

38.It is not in dispute that the suit property has already been handed over

to Durg Urban Public Transport Society vide Gazette Notification dated

35

20.05.2014, and the construction of the Bus-Stand has already been

completed. The relief sought for by the plaintiffs can be granted as the

order passed by the Competent Authority dated 28.3.2011 has already

been set aside by the Additional Commissioner, Raipur, vide order

dated 29.10.2011, but it will hamper the public exchequer as the

construction of the bus stand has already been completed. The

Additional Commissioner, in its order dated 29.10.2011, has

categorically held that on 10.06.1988, a memo was sent to the

Revenue Inspector to take possession, and according to the order-

sheet dated 25.06.1988, possession of the suit property was taken

over by the State, but no memo was issued by the Tehsildar Nazul to

take physical possession of the suit property. It is further observed that

along with the report, possession panchanama is not available and

thus possession was not taken over according to the provisions of

Section 10(6) of the Act of 1976, resultantly the Additional

Commissioner, Raipur set aside the order passed by the Additional

Collector dated 28.03.2011 and directed the revenue authorities to

enter the names of the plaintiffs in the revenue records. The

respondents/defendants challenged the said order by filing WP(227)

159/2013, but it was withdrawn on 26.02.2013, and the revision

preferred by the State before the Chhattisgarh Government,

Department of Revenue and Disaster Management was dismissed for

want of jurisdiction vide order dated 01.03.2014, and thus, the order

passed by the Additional Commissioner dated 29.10.2011 attained

finality.

39.Admittedly, the suit property got recorded in the name of the State on

25.06.1988, and the plaintiffs are out of possession therefore they

36

sought the relief of possession by virtue of the order dated 29.10.2011.

The possession of the plaintiffs can be termed as de jure possession

by virtue of the order dated 29.10.2011, and in order to acquire de facto

possession, they filed a civil suit. Thus, the above discussed facts

make it abundantly clear that actual possession was taken over by the

State in a proceeding under the Act of 1976 on 25.6.1988, but the

Additional Commissioner set aside all earlier orders passed by the

Competent Authority.

40.With regard to limitation, the plaintiffs challenged the order passed by

the Competent Authority, including the entire proceedings, by filing WP

No. 3424/1997 before the High Court, and it was disposed of vide

order dated 19.10.2010, whereby the plaintiffs were granted the liberty

to move an application before the Competent Authority to decide on the

issue of possession of the suit property. The writ petition filed by the

plaintiffs was the continuation of the actual proceedings of the Ceiling

Act, 1976. The competent authority decided the application moved by

the plaintiffs on 28.3.2011. The plaintiffs challenged the said order by

filing an appeal before the Additional Commissioner, Raipur, which was

allowed vide order dated 29.10.2011. The order dated 29.10.2011

attained finality. Thus, the cause of action arose in favour of the

plaintiffs when the defendants started raising the construction of the

Bus Stand, ignoring the order dated 29.10.2011 and from the said date,

the suit is within limitation.

41.With regard to the effect of repeal act, the proceedings including the

order passed in Ceiling Case were challenged by the plaintiffs by filing

WP No. 3424/1997 prior to the enactment of repeal act by filing writ

37

petition and in the said writ petition, liberty was granted to the plaintiffs

to approach the Competent Authority, thus the application moved by

the plaintiffs pursuant to the order passed by the High Court was in

continuation of the actual proceedings of the Ceiling Act, 1976 and the

Repeal Act would not come in the way.

42.The learned trial Court dismissed the suit filed by the plaintiffs on the

ground that the possession of the suit property was taken over by the

State in the year 1988, the name of the State was entered into the

revenue record, and it is held that the compensation was assessed, but

the plaintiffs did not accept it. The documents filed by the defendants

would reveal that a proceeding under the Act of 1976 was initiated, and

the suit land was declared surplus land. It is also held that a notification

under Section 10(1) of the Act of 1976 was issued on 04.03.1988, the

notification under Section 10(3) of the Act was issued on 22.04.1988,

and thereafter an order was passed by the Competent Authority

directing the Tehsildar Nazul to take over possession, and resultantly

possession was taken over on 10.06.1988. The learned trial Court also

held that the suit property was transferred to Durg Urban Public

Transport Society vide Gazette notification dated 20.05.2014 and a

Bus-Stand has been constructed over the suit property; therefore, it

would not be proper to ignore the huge fund spent by the State for

construction of the Bus Stand and to grant a decree to hand over

vacant possession of the suit property to the plaintiffs.

43.Perusal of the judgment passed by the learned Trial Court would reveal

that the order passed by the Additional Commissioner dated

29.10.2011 has not been taken into consideration properly, whereby

38

the order passed by the Additional Collector dated 28.03.2011 was set

aside.

44.In the matter of Bernard Francis Joseph Vaz (supra), the Hon’ble

Supreme Court has held that the right to property is a human as well

as a Constitutional right under Article 300-A of the Constitution of India

and the obligation to pay compensation, though not expressly included,

can be inferred in that Article. In the said matter, the Hon’ble Supreme

Court further held that normally, compensation is determined as per the

market price of the land on the date of the issuance of the notification

regarding the acquisition, and instead of quashing the impugned

notification, the date of notification can be shifted so that the

landowners are adequately compensated. In the matter of Raj Kumar

Johri (supra), the date of notification issued under Section 4(1) of the

Land Acquisition Act, 1894, was postponed to 01-01-1988 for the

purpose of determination of the compensation.

45.With regard to prayer for moulding of relief, certainly the plaintiffs have

a case as their possession has been secured by the Additional

Commissioner, Raipur vide order dated 29.10.2011 but at the same

time it can’t be ignored that a bus stand has already been constructed

over the suit property, therefore instead of vacant possession of the

suit property, the plaintiffs are held entitled for compensation against

the acquisition of their land.

46.Raj Kamar Johri (Supra), Medha Patkar (Supra) and Bernard

Francis Joseph (Supra) are the cases where land acquisition

proceedings were initiated according to the Act of 1894 and the

Hon’ble Supreme Court pleased to fix another date of notification under

Section 4(1) of the Act of 1894 but the present is a case where the suit

39

land was declared surplus according to the provisions of the Act of

1976 and possession was also taken over; therefore the date of

notification cannot be shifted to any other date but at the same time,

the plaintiffs cannot be deprived of their right to property; therefore,

they are held entitled to get adequate compensation according to the

provisions of the Act of 1894.

47.The documents filed by the defendants establish that possession was

taken over on 10.06.1988, but said orders have been set aside by the

Additional Commissioner, and thereafter the plaintiffs filed a suit

claiming possession; therefore, the respondents are directed to

determine and make payment of proper compensation.

48.As a result, the judgment and decree passed by the learned Trial Court

are set aside. The relief(s) sought by the plaintiffs are modified, and

they are held entitled to compensation according to the provisions of

the Act, 1894. The respondent authorities shall determine and make

payment of the compensation based on its fair market value,

specifically in the year 1988.

49.Accordingly, the question for determination No. (i) is decided in favour

of the plaintiffs.

50.Resultantly, the appeal is allowed to the extent indicated herein above.

Sd/-

(Rakesh Mohan Pandey)

Judge

vatti

40

HEAD NOTE

•It is true that any order or judgment passed by any authority or the

court having no jurisdiction is void. But, at the same time, it is also

settled legal proposition that even if an order is void, it requires to be so

declared by a competent forum, and it is not permissible for any person

to ignore the same merely because, in his opinion, the order is void.

;g lR; gS fd fdlh izkf/kdkjh ;k U;k;ky; }kjk fcuk fdlh {ks=kf/kdkj ds

ikfjr fd;k x;k vkns’k ;k fu.kZ; ’kwU; gksrk gS] lkFk gh lkFk] ;g Hkh fof/k dk

LFkkfir fl)kar gS fd] ;fn vkns’k ’kwU; gks rc Hkh mls l{ke Qksje }kjk

’kwU; ?kksf"kr fd;k tkuk vko’;d gS] rFkk fdlh O;fDr ds fy;s ;g vuqKs;

ugha gS fd og mDr dk dsoy blfy;s voKk djsa fd] mlds erkuqlkj vkns’k

’kwU; gS A

•The concept of moulding of relief refers to the ability of a court to

modify or shape a relief sought by a party in a legal proceeding. The

principle enables the court to grant appropriate remedies even if the

relief requested in the pleading is not exact or could not be considered

by the court, or changed circumstances have rendered the relief

obsolete.

vuqrks"k iznku djus dh vo/kkj.kk dk vFkZ] dkuwuh dk;Zokgh esa U;k;ky; }kjk

fdlh i{k }kjk ekaxs x;s vuqrks"k dks mikarfjr djus ;k Lo:i iznku djus dh

{kerk ls gS A ;g fl)kar] U;k;ky; dks mfpr mipkj iznku djus esa l{ke

cukrk gS] Hkys gh vfHkopu esa pkgk x;k vuqrks"k oSlk u gks ;k U;k;ky; }kjk

mDr dks Lohdkj u fd;k tk lds ;k cnys gq;s ifjLFkfr;ksa ds dkj.k] pkgk

x;k vuqrks"k vizpfyr gks x;k gks A