Supreme Court: The bench of Mohan M. Shantanagoudar* and Vineet Saran, JJ., addressed the instant appeal against the order of High Court of Karnataka whereby the Court had refused to engage with the matter and had ordered that the appellant may seek a remedy in accordance with law. The Bench stated,
“It was incumbent on the Division Bench to enquire into and settle the questions of fact arising from the present controversy, to settle finally the question of abatement of the proceedings and prevent the inefficient proliferation of further litigation between the parties.”
Factual Background
In the instant case five properties originally belonged to the joint family of two sisters. After their death, their ten children benefited through a registered partition deed dated 09-01-1984. Through the said partition deed, Leela Sapalyathi, one of the ten children, allegedly came to hold a share of 1983 sq. mts. of land, including land to the extent of 30 cents falling under Survey No. 53/3A.
On 17-02-1976, the Urban Land (Ceiling and Regulation) Act, 1976 came into force in Karnataka. Padmanabha, one of the ten children, filed a statement under S. 6(1) of the Act on 15-06-1984 declaring that the property had been partitioned and individual share of each of the children subsequent to partition was within the ceiling limit prescribed under the Act. On 16-10-1996, the Competent Authority directed that an extent of 5,210.10 sq. mts. of land held by the declarant be treated as excess vacant land to be surrendered.
The Appellant’s case was that he had executed a sale deed on 26-03-1994 with Leela Sapalyathi whereby he purchased a portion of Survey No. 53/3A measuring 14 cents comprising an old house. He had also produced copies of the Record of Rights, Tenancy and Crops (‘RTC’) for the years 1993-1994 and 1994-1995.The Appellant stated that he was unaware of the Authority’s order and upon enquiry he came to know that the RTC was registered in the name of government. It had been contended by the appellant that the Competent Authority had not issued notice to the appellant regarding taking of possession of the suit property. That, in any case, the Competent Authority had not taken physical possession of the suit property as on the date of commencement of the Repeal Act. Hence, the proceedings would abate and the Competent Authority could not take further action under the Act.
Analysis and Findings
The Bench observed that regardless of whether the declarant Padmanabha and his family members had affected partition after the Act had commenced, the concerned land would still be subject to the proceedings initiated under the Act. Section 6 of the said Act had prescribed that, “every person holding vacant land in excess of the ceiling limit at the commencement of the Act…” Thus, the determination of ‘excess land’ was to be made considering the status of the land at the time of commencement of the Act, and not at the time of filing of the declaration.
Noticing that the partition was affected after Commencement of the Act, the Division Bench’s decision was held to be corrected in holding that the partition deed dated 09-01-1984 would not affect the validity of the Competent Authority’s determination of excess land. The Bench further observed,
“Section 8 and Section 9 of the Act make it incumbent on the Competent Authority to issue notice to or provide an opportunity to be heard only to the ‘person concerned’, i.e., the person who has filed the statement under Section 6 of the Principal Act.”
Claims of all other persons interested in the vacant land was to be considered through issuing a Gazetted notification as per Section 10(1) of the Act, which had been duly issued by the Competent Authority on 27-10-1995. The Repeal Act, which came into effect from 08-07-1999 had provided under S. 4 as follows:
“Section 4: All proceedings relating to any order made or purported to be made under the principal Act pending immediately before the commencement of this Act, before any court, tribunal or other authority shall abate:”
Section 3(2) of the Repeal Act, i.e., savings clause, had laid down that vacant land vested in the State Government by the Act, the possession for which had not been taken over, should be restored only once any compensation paid to the landholder had been returned. Hence, any proceeding for any excess land under the old Act was liable to abate, as per Section 3 and Section 4 of the Repeal Act, and the Appellant would be entitled to ownership and possession over the suit property.
However, neither the partition deed dated 09-01-1984, nor the sale deed dated 26-03-1994 that purportedly passed on the title to the Appellant, had been produced before the Court. Thus, there was nothing on record to establish Appellant’s purchase of, possession of, or interest in the suit property. Also, there was nothing to conclusively establish possession of the suit property either by the Competent Authority or the Appellant.
Hence, observing that the contention depend on question of fact, the Bench directed the matter to be remitted to the Division Bench of the Karnataka High Court and further ordered to consider the case afresh while disposing of the present appeal.
[U.A. Basheer v. State of Karnataka, 2021 SCC OnLine SC 98, decided on 17-02-2021]
Kamini Sharma, Editorial Assistant has put this report together
*Judgment by: Justice Mohan M. Shantanagoudar