STATE OF ASSAMversusBHASKAR JYOTI SARMA & ORS. ETC.

                    [2014] 14 S.C.R. 1451


                     STATE OF ASSAM                              A
                               v.
         · BHASKAR JYOTI SARMA & ORS. ETC.
              (Civil Appeal No. 10565 of 2014)
                                                                 B
                    NOVEMBER 27, 2014
         [T. S. THAKUR AND R. BANUMATHI, JJ.]
        Urban Land (Ceiling and Regulation) Act, 1999- s. 3-
  Land in question declared ceiling surplus under Urban Land
  (Ceiling and Regulation) Act, 1976 -After declaration, sale C
, of the surplus land by (he owner - Possession of the land
  taken over by the Government- Certain portion of the surplus
  land allotted to 8 families - The case of purcflasers
  challenging the vesting of land with Government, dismissed
 and attained finality - Remaining surplus land allotted to D
  Development Authority - In the meantime repeal of 1976
 Act by the 1999 Act and adoption thereof by the State in
  August 2003 - Allotment to Authority challenged by the
  descendants of the owner of the land - Held: repeal of the.
  principal Act does not affect the vesting of any vacant land u/ E
  s. 10(3), possession whereof has been taken by the·
  Government - In the present case possession·was taken
 prior to adoption of the Repeal Act by the State- Urban Land
 (Ceiling and Regulation) Act, 1976- s. 10.
      Allowing the appeals, the Court
                                                                 F
     HELD: 1. Section 3 of Urban Land (Ceiling and
Regulation) Act, 1999 (Repeal Act) makes it clear that
repeal of the Principal Act i.e._Urban Land (Ceiling and
Regulation) Act, 1976 does not affect the vesting of any G
vacant land under sub-section (3) of Section 10,
possession whereof has been taken over by the State
Government or any person duly authorised by the State
Government in that behalf or by the competent authority.
                                                                 H
                             1451
1452      SUPREME COURT REPORTS                [2014j 14 S.C.R.


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




          State of Gujarat and Anr. v. Gyanaba Di/avarsinh .
          J8,dega 2013 (11) sec 486- referred to.
          3;:~The. question of dispossession of the owner or
 F .. the trarisferee was never agitated or determined by the
      High C~urt in the writ petition filed by the transferee. It
    . also does not appear that the respondent would adduce
      any documentary evidence before the High Court after
      this case'is remanded and would enable the High Court
 G to recQrd ~finding in regard to actual possession. That
      being so;; the question whether actual physical
      possessio11 was taken over remains a seriously disputed·
      question of fact which is not amenable to a satisfactory
      determination by the High Court in proceedings under
·H
  STATE OF ASSAM v. BHASKAR JYOTI SAR MA & ORS.                1453
                      ETC.

Article 226 of the Constitution. Remand to the l'.figh Court A
to have a finding on the question of dispossession,
therefore, does not appear to be a viable solution. [Paras
14 and 15)[1464-G; 1466-A-C]
      4. The alternate plea of the respondent that the
 order passed by the High Court is upheld except to the B
 extent of land to be restored to the respondents
·equivalent to the extent which was ·allotted in favour of
 Guwahati Metropolitan Development Authority is not
 acceptable. Out of the eight families in whose favour the
 surplus area was settled in the year 1992, four families C
 have been allotted disputed land. Such being the case
 the offer made by the respondent does not appear to be
 a feasible solution at this stage particularly when the
 allotments made are not in question nor have the allottees
 been impleaded as party respondents. [Paras 16 and D
 17][1466-E-G; 1467-C]
                   Case Law Reference
2013 (2) SCR 301           distinguished        Para 12
2013 (11) sec 486          referred to          Para 15        E

    CIVIL APPELLATE JURISDICTION: Civil Appeal No.
10565 of 2014.
     From the Judgment and Order dated 21-09-2010 of the
High Court of Gauhati in WritAppeal No. 202 of 2007.           F
                           WITH
     Civil Appeal No. 10566 and 10567 of 2014
      P. Vishwanathan Shetty, Dhruv Mehta, P.K. Goswami, Sr.
Advs., Avijit Roy (For M/s Corporate Law Group), Boboy         G
Potsangbam, Khwairakpam Nobin Singh, Milly Hazarika,
Manish Goswami, Rameshwar Prasad Goyal, Parthiv K.
Goswami, Yashvardhan Singh, Ms. Charu Mathur, Ms. Diksha
Rai, Advs. for the appearing parties ..
                                                               H
1454         SUPREME COURT REPORTS                  (2014) 14 S.C.R.


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

declared Ceiling Surplus Government land. Apart of the said A
land was on that basis allotted in favour of 8 families in terms ·
of land policy of the Government while the remaining area
measuring 8.03 Ares was retained by the Government. It is
not in dispute that the land record was also corrected by
deleting the name of owner Bhabadeb Sarma as the Pattadar. B
It is also not in dispute that no land revenue was collected from
the erstwhile owners post vesting of the land in the State under
Section 10(3) of the Act.
       5. The appellant's case is that possession of the entire
surplus land was taken over by the Revenue Authority on 7th C
December, 1992. This did not, however, deter Kamala Kanta
Ozah and others who had purchased the land either from filing
an appeal against the order of vesting or challenging the
proceedings in Writ Petition (Civil Writ Case No.2568of1992)
filed before the High Court. Both these attempts made by the D
purchasers of the land failed with the dismissal of the appeal
by the Secretary to the Government of Assam, Department of·
Revenue and the dismissal of Writ Petition No.2568 of 1992
by the High Court in terms of order dated 21st May, 2002. The
High Court, it is pertinent to mention not only upheld the order E
passed by the Collector-cum- Competent Authority but also
the allotment of a substantial portion of the land in favour of 8
different families eligible for such allotment. Writ Appeal No.419
of 2002 filed by Kamala Kanta Ozah and others against the
order passed by the Single Judge also came to be dismissed F
by the Division Bench of the High Court by an order dated
2olh December, 2002. Special leave petition filed against the
said order too failed and was dismissed by this Court on 8th
August, 2003.
     6. With the challenge to the proceedings under the Act G
concluding in the manner indicated above, the Government of
Assam by an order dated 27th November, 2003 allotted an
extent of 8.03 Are to Guwahati Metropolitan Development
Authority (GMDA) for construction of an office building for
                                                            H
1456         SUPREME COURT REPORTS                   [2014] 14,S.C.R.


 A the said authority. In the meantime on 12th December, 2003
                      '                       '
   the Urban Land (Ceiling and Regulation) Repeal Act was
   notified which came into force in the State of Assam w.e.f.
   5th August, 2003, The appellant's case is that possession of
   the allotted land was handed over to GMDAon 25th December,
 B 2003 which action too came under challenge at the instance
   of the respondents in Writ Petition No.2519 of 2004, who
   stepped into the shoes of Bhabadeb Sarma upon his death
   on 3rd October, 1997. ASingle Bench of t,he High Court of
   Assam dismissed the writ petition upholding the allotment of
 c the land to GMDA and declined the prayer for restoration of
   the possession in favour of the writ petitioners-respondents
   herein. Aggrieved by the said order, the respondents filed Writ
   Appeal No.202 of 2007 before the High Court which was
   allowed by a Division Bench of the High Court by the order
 D impugned in this appeal. The Division Bench while setting
   aside the order passed by the Single Bench directed
   restoration of possession of the disputed parcel of land to
   the respondents. The present appeals filed by the State of
   Assam and GMDA assail the correctness of the said judgment
 E and order of the High Court.
             7. We have heard learned counsel for the parties at
       considerable length. The Urban Land (Ceiling and Regulation)
       Act, 1999 repealed the Principal Act w.e.f. the date the State
       adopted the Repeal Act. In terms of a resolution pa_ssed under
 F     clause (2) Article 252 of the Constitutionhthe Repeal Act was
       adopted by the State of Assam w.e.f. 6t August, 2003. We
       may at this stage usefully extract Sections 2 and 3 of the Repeal
       Act which have a direct bearing on the questions that arise for
       ourdetermination: ·
 G                           .
             "2. Repeal ofAct 33of1976- The Urban Land (Ceiling
            and Regulation) Act, 1976, (hereinafter referred to as
            the principal Act) is hereby repealed.
            3. Saving. - (1) the repeal of the principal Act shall not
 H          affect-
  STATE OF ASSAM v. BHASKAR JYOTI SARMA & ORS.                    1457
              ETC. [T. S. THAKUR, J.]

         (a) the vesting of any vacant land under sub-section     A
            (3) of Section 10, possession of which has been
            taken over by the State Government dr any person
            duly authorised by the State Government in this
            behalf or by the competent authority;
        (b) the validity of any order granting exemption under B
          · sub-section (1) of Section 20 or any action taken
            thereunder, notwithstanding any judgment of any
            Gourt to the contrary;
        (c) any payment made to the State Government as a         c
            condition for granting exemption under sub-
            section (1) of Section 20.
      (2) Where-
         (a) any land is deemed to have vested in the State
           · Government under sub-section (3) of Section 1O D
             of the principal Act butpossesslon of which has ~.
             not been taken over by the State Government or
             any person duly authorised by the State
             Government in this behalf or by the competent
             authority; and                                   E
         (b) any amount has been paid by the State
            Government with respect to such land then, such
            land shan not be restored unless the amount paid,
            if any, has been refunded to the State                F
            Government. "
       8. A bare reading of.Section 3 (supra) makes it clear
 that repeal of the Principal Act does not affect the vesting of
 any vacant land under sub-section (3) of Section 10,
 possession whereof has been taken over by the State G
·Government or any person duly authorised by the State
 Government in that behalf or by the competent authority. In the
 case at hand, the appellant claims to have taken over the
                                      th
possession of the surplus land on 7        December, 1991. That
                                                                  H
1458         SUPREME COURT REPORTS                      [2014] 14 S.C.R.


 A     claim is made entirely on the basis of a certificate of handing
       over/taking over of possession, relevant portion whereof reads
                                                .          .
       as under:
            "Certificate of handing over/taking over possession
 B           Today on this 7th December, 1991, we took over
            possession of 70.32 Are of acquired land as scheduled
            below vide order of the Deputy Commissioner, Kamrup's
            ULC Case No.343 dated 2-3-91 and as per Assam
            Gazette notification dated 1: 1-8 7 in the case
 C          No.ULC343/76.
            Schedule of land
            xxx                         xxx                        xxx
            xxx                         xxx                        xxx
 D
            Received the possession
            (Taken over possession unilaterally)
            Sd/-11/egible                     Given the possession
            Designation - SK (G)              Designation
 E
             7.12.91       Dated              Dated
                            7112
                               Countersigned
                                Sd/-/1/egible
 F                            Circle Officer
                         Guwahati Revenue Circle"

                                                    .
             9. Relying upon the above document it was strenuously
       argued on behalf of the appellants that actual physical
                                                                 .
 G     possession was taken over from the erstwhile land owner as
       early as in December, 1991, no matter relevant official record
       does not bear testimony to any notice having been issued to
       the land owners in terms of Section 10, sub-section (5) of the
       Act. It was argued that so long as actual physical possession
 H     had been taken over by the competent authority title to the
   STATE OF ASSAM v. BHASKAR JYOTI SARMA & ORS.                        1459
               ETC. [T. S. THAKUR, J.]

   land so taken over stood vested absolutely in the State             A
   Government under Section 10(3) and could not be claimed
   back no matter the Principal Act stood repealed after such
   vesting had taken place. In support of the contention that actual
   physical possession had been taken over by the competent
   authority, the appellant places heavy reliance upon the fact that   B
   challenge to the proceedings under the Act mounted in Writ
   Petition No.2568 of 1992 by the purchasers of a part of the
   disputed land had failed right up to this Court and the allotment
   of a substantial part of the surplus land in favour of the 8
   families affirmed. This, according to the appellant, proves         c
   that possession of the surplus land had indeed been taken
· over from the erstwhile owner in terms of proceedings held on
   7th December, 1991. It was also contended that Bhabadeb
   Sarma, the erstwhile owner, had remained aloof even when
   he was a party to the writ petition filed by the purchasers who     o
   had ques~ioned the validity of the order passed by the
   competent authority including the allotment of the surplus land
   in favour of third parties. It was urged that the Repeal Act
   would have no effect whatsoever even when the taking of
   possession was without notice to the erstwhile owner                E
   especially when the owner had failed to question any such
 ·take over at the appropriate stage in appropriate proceedings.
   The challenge mounted by the legal heirs of the deceased
   erstwhile owner 13 years later was clearly untenable and
   afterthought. Failure of the land owner to seek redressal against   F
   non- compliance with the statutory requirement of a notice
   before possession is taken would constitute abandonment of
  the right of the owner under Section 10 (5) which cannot be
   resuscitated ·after lapse of such a long period only to take
  advantage of the Repeal Act. The question whether actual             G
  physical possession of the disputed land had been taken over
  is in any case a seriously disputed question of fact which could
  not be adjudicated or determined by the High Court in its writ
 jurisdiction.
                                                                       H
1460        SUPREME COURT REPORTS                   [2014] 14 S.C.R.


 A         10. Mr. P.K. Goswamy, learned senior counsel, appearing
     for the respondents, on the other hand, argued that actual
     physical possession must be proved to have been taken over·
     by the State Government or by a person duly authorised by the
     State Government in that behalf or by the competent authority
 B in order that the saving of clause in the Repeal Act could save
     any action already taken under the principal Act. Possession
     of surplus land could, in turn, be taken only by the owher
     surrendering or delivering possession to the State Government
     or the persons duly authorised by the State Government. In the
 c   event of failure or refusal of the owner to surrender or deliver
     the same, possession of the surplus land could be taken forcibly
   . also but only in accordance with the procedure prescribed.
     The Scheme of Section 10 does not, according to Mr.
     Goswamy, permit taking over of possession by the State
 o Govemmentorthe authorised person or' the public authority
     without following the procedure prescribed under Section
     10(5), namely, issuing a notice in writing to the person to
     surrender or deliver the same. Inasmuch as actual physical
     possession in the case at hand is alleged to have been taken
 E over without following the said procedure the alleged take over
     shall be deemed to be non-est in the eye of law atleastforthe
     purposes of Section 3 of the Repeal Act. Relying upon the
     decision of this Court in State of Uttar Pradesh v. Hari Ram
     (2013) 4 SCC 280, it was argued by Mr. Goswamythatthe
 F procedure prescribed .under Section 10(5) for taking physical
     possession of the land under Section 10(6) was mandatory
     and so long as the said procedure was not followed, no
     possession can be said to have been taken over within the
     meaning of Section 3 of the Repeal Act.'
 G           11. Section 3 of the Repeal Act postulates that vesting of
       any vacant land under sub-section (3) of Section 10, is subject
       to the condition that possession thereof has been taken over
       by the competent authority or by the State Government or any
     . person duly authorised by the State Government. The
 H
  STATE OF ASSAM v. BHASKAR JYOTI SAR MA & ORS.                        1461
              ETC. [T. S. THAKUR, J.]

  expression ''possession" used in Section 3 (supra) has been          A
  interpreted to mean "actual physical possession"of the surplus
  land and not just possession that goes with the vesting of excess
  land in terms of Section 10(3) of the Act. The question, however,
  is whether actual physical possession of the land in dispute
  has been taken over in the case at hand by the competent             B
  authority or by the State Government or an officer authorised
  in that behalf by the State Government. The case of the
  appellant is that actual physical possession of the land was
  taken over on 7th December, .1991 no matter unilaterally and
  without notice to the erstwhile land owner. That assertion is·       c
  stoutly denied .by the respondents giving rise to seriously
  disputed question of fact which may not be amenable to a
  satisfactory determination by the High Court in exercise of.its
  writ jurisdiction. But assuming that ariy such determination is
  possible even in proceedings under Article 226 of the                o
  constitution, what needs examination is whether the failure of
  the Government or the authorised officer or the competent
  authority to issue a notice to the land owners in terms of Section
   10(5) would by itself mean that such dispossession is no
  dispossession in the eye of law and hence insufficient to attract    E
   Section 3 of the Repeal Act. Our answer to that question is in
  the negative. We say so because in the ordinary course actual
   physical possession can be taken from the person in
  occupation only after notice under Section 10(5) is issued to
   him to surrender such possession to the State Government,            F
  or the authorised officer or the competent authority. There is
  enough good sense in that procedure inasmuch. as the need
  for using force to dispossess a person in possession should
  ordinarily arise only if the pers_on concerned refuses to
  cooperate and surrender or deliver possession of the lands           G
  in question. That is the rationale behind Sections 10(5) and
  10(6) of the Act. But what would be the position if for any
  reason t~e competent authority or the Government or the
. authorized officer resorts to forcible dispossession of the
  erstwhile owner even without exploring the possibility of a           H
        1462         SUPREME COURT REPORTS                   [2014] 14 S.C.R.


         A    voluntary surrender or delivery of such possession on demand.
              Could such use of force vitiate the dispossession itself or would
              it only amount to an irregularity that would give rise to a cause ·
              of action for the aggrieved owner or the person in possession
              to seek restoration only to be dispossessed again after issuing
          B a notice to him. It is this aspect that has to an extent bothered
              us. The High Court has held that the alleged dispossession .
              was not preceded by any notice under Section 10(5) of the
              Act. Assuming that to be the case all that it would mean is that
              on 7th December, 1991 when the erstwhile'owner was
         c    dispossessed from the land in question, he could have made
              a grievance based on Section 10(5) and even sought
              restoration of possession to him no matter he would upon such
              restoration o'nce again be liable to be evicted under Sections ,
              10(5) and 10(6) of the Act upon his failure .to deliver or
          D surrender such possession. In reality therefore unless there
              was something that was inherently wrong so as to affect the
              very process of taking over such as the identity of the land or
              the. boundaries thereof or any other circumstance of a similar
            ' nature going to the root of the matter hence requiring an
          E adjudication, a person who had lost his.land by reason of the
                                           .             '
              same being declared surplus under Section 10(3) would not
              consider it worthwhile to agitate the violation of Section 10(5) .·
              for he can well understand that even when the Court may uphold
              his contention that the procedure ought to be followed as
          F prescribed, it may still be not .enough for him to retain the
              land forthe authorities could the very next day dispossess him
              from the same by simply serving a notice under Section 10(5).
              It would, in that view, be 'an academic exercise for any owner
              or person in possession to find fault with his dispossession on
        . G the ground that no notice under Section 10(5) had been served
               uponhim,    ,
                   · 12. The issue can be viewed from anotheran.gle also.
               Assuming that a person in .possession cou\d make. a
               grievance, no matter without much gain in the ultimate analysis, .
         H
.   '
   STATE OF ASSAM v. BHASKAR JYOTI SARMA & ORS.                      1463
               ETC. [T. S. THAKUR, J.]

· the question is whether such grievance could be made long          A ·
  after the alleged violation of Section 10(5). If actual physical
  pgssession was taken ov~r from the ~rstwhile land owner on
  7 December, 1991 as 1s alleged in the present case any
  grievance based on Section 10(5) ought to have been made
  within a reasonable time of such dispossession. lfthe owner        B
  did not do so, forcible taking over of possession would acquire
  legitimacy by sheer lapse of time. In any such situation the
  owner or the person in possession must be deemed to have
  waived his rig ht under Section 10(5) of the Act. Any other view
  would, in our opinion, give a licence to a litigant to make a      C
  gri~vance not because he has suffered any real prejudice that
  needs to be redressed but only because the fortuitous
  circumstance of a Repeal Act tempted him to raise the issue
  regarding his dispossession being in violation ofthe prescribed.
  procedure.                                         ·               D
        13. Reliance was placed by the respondents upon the
  decision of this Court in Hari Ram's case (supra). That
  decision does not, in our view, lend much assistance to the
  respondents. We say so, because this Court was in Hari
  Ram's case (supra) considering whether the word 'may' E
  appearing in Section 10(5) gave to the competent authority
  the discretion to issue or not to issue a notice before faking
  physical possession of the land in question under Section
   10(6). The question whether breach of Section 10(5) and
  possible dispossession without notice would vitiate the act of F
  dispossession itself or render it non est in the eye of law did
  not fall for consideration in that case. In our opinion, what
  Section 10(5) prescribes is an ordinary and logical course of
  action that ought to be followed before the authorities decided
  to use force to dispossess the occupant under Section 10(6). G
  In the case at hand if the appellant's version regarding
. dispossession of the erstwhile owner in December 1991 is
  correct, the fact that such dispossession was without a notice
  under Section 10(5) will be of no consequence a.nd would not
                                                                     H
14p4.       SUPREME COURT REPORTS                     (2014] 14 S.C.R.


 A  vitiate or obliterate the act of taking possession for the ·
    purposes of Section 3 of the Repeal Act. That is because
    Bhabadeb Sarma-erstwhile owner had not made any grievance
    based on breach of Section 10(5) at any stage during his
   ·lifetime implying thereby that he had waived his right to d.o
 B so.
               14. Mr. Goswamy drew our attention to a decision of
       thisCourt in State of Gujarat and Anr. V. Gyanaba
       Dilavarsinh Jadega (2013) 11 SCC 486 to argue that a
. C Writ Court could also examine the questior:i of dispossession
        as was the position in that case which too arose out of a
       proceeding under the Urban Land (Ceiling and Regulatiqn)
     · Act. This Court in that case remanded the matter back to the
        High Court to determine the question whether possession of
        the land had been taken over before the Repeal Act 6ame into
   D force. In the instant case the Single bench of the High Court
      . had while dismissing the writ petition filed by the respondents
        relied upon the fact that the writ petition filed by the purchasers
        of a portion of the surplus land had been dismissed and the
        allotment of a portion of the surplus land in favour of separate
 · E family affirmed not only by the Division Bench of the High Court
        but also by this Court in a further appeal. The possession of
        land purports to have been taken overJiom the erstwhile owner
        in terms of proceedings dated 7th December, 1991. Inference
        drawn appears to be that ifallotment of substantial part of the
   F surplus land to the .third parties has .been affirmed, it only
        means that possession was indeed taken over for otherwise
        there was no question of allotting the land to third parties nor
        was there any question of such allottee-occupants using the
        same. We cannot, however, ignore the fact that the question
   G of dispossession of the owner or the transferee was never
        agitated or determined by the High Court in the writ petition
        ti.led by the transferee. We could appreciate the argument if
        the issue regarding dispossession haa been' raised and
        determined by the Courts in, the previo'us litigation. That was,
        .                                        I          .           ,

   H
 STATE OF ASSAM v. BHASKAR JYOTI SARMA& ORS.                    1465 .
             ETC. [T. S. THAKUR, J.]

however, not so, apparently, because the question of A
dispossession was not relevant in the proceedings initiated
by the transferees who were challenging the vesting order on .
the ground of their having purchased the surplus land from the ·
owner. Thafattempt failed as the Court found the sale in their
favour to be void. The question of dispossession relevant to B
Section 3 of the Repeal Act thus riever arose for consideration
in those proceedings. It will, therefore, be much too farfetched
an inference to provide a sound basis for either the High Court
or for us to hold that dismissal of the writ petition filed by the
purchasers in the above circumstances should itself support a    c
finding that possession had indeed been taken over. Having
said that we must hasten to add that even the Division Bench
haswhile reversing the view taken by the single bench not
recorded any specific finding to the effect that possession
had actually continued with the erstwhile owner even after the D
vesting gf the !<Jnd under Section 10(3) and the proceedings
dated 7 December, 1991.
       15. In support of the contention that the respondents are
even today in actual physical possession of the land in question
reliance is placed upon certain electricity bills and bills paid · E
for the telephone connection that stood in the name of one Mr.
Sanatan Baishya. It was contended that said Mr. Sanatan
Baishya was none other than the caretaker of the property of
tne respondents. There is, however, nothing on record to
substantiate that assertion. The telephone bills and electricity F ·
bills also relate to the period from 2001 onwards only. There is
nothing on record before us nor was anything placed before
the High Court to suggest that between 7th December, 1991 .
till the date the land in question was allotted to GMDA in
December, 2003 the owner or his legal heirs after his demise G
had continued to be in possession. All that we have is rival
claims of tlie parties based on affidavits in support thereof.
We repeatedly asked learned counsel for the parties whether
they can, upon remand on the analogy of the decision in the
                                                                 H
1466       SUPREME COURT REPORTS                 [2014]_ 14 S.C.R.


 A   case of Gyanaba Dilavarsinh Jadega (supra), adduce any
   . documentary evidence that Would en'able the High Court to
     record a finding in regard to actual possession. They were
     unable to, point out or refer to any such evidence. That being
     so the question wheth.er actual physical possession was taken
 B over remains a seriously disputed question of fact which is not
     amenable to a satisfactory determination by the High Court in
     proceedings under Article 226 of the Constitution no matter
     the High Court may in its discretion in certain situations upon
     such determination. Remand to the High Court to have a finding
 c   on the question of dispossession, therefore, does not appear
     to us to be a viable solution.
         16. Confronted with the above position, Mr. Goswamy
   made a suggestion. He urged that having regard to the fact
   that Urban Land (Ceiling and Regulation) Act, 1976 has been
 D repealed as. also the factthat no notice under Section 10(5)
   was ever issued any proceedings meant to determine whether
   actual dispossession had or had not taken place, whether by
   the High Court or any Civil Court is bound to take another
   decade if not more. The respondent would, therefore, be happy
 E and satisfied if the order passed by the High Court is upheld
   except to the extent of land to be restored to the respondents
   equivalent to 8.03 Are (equivalent to 3 Kathas) which exter:lt
   has been allotted in favour of Guwahati Metropolitan
   Development Authority. The appellant has responded to the·
 F said offer of the respondents arid pointed out that out of the
   eight families in whose favour the surplus area was settled in
   the year 1992, four families have been allotted· disputed
   land in questing measuring 1 bigha, 4 Kathas, 16 laches.
   John lngti Katha one of the respondents in these appeals is
 G one of such allottees of ihe settled area. The affidavit further
   states that settlement of .8.03 'Are' (equivalent to 3 Kathas)
   was made in 2003 in favour of GMDA in the yeaF 2003 and
   that restoration of the balance land i.e. 1 bigha, 4 Kathas, 16
   laches to respondents 1 to 3 will affect the settlement already
 H
   STATE OF ASSAM v. BHASKAR JYOTI SARMA &. ORS.                      1467
               ETC. [T. S. THAKUR, J.]

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


 Kalpana K. Tripathy                              Appea.ls allowed.
                                                                      E