Ashok Kumar Jain & Ors. vs The State Of Madhya Pradesh & Ors.

Considering the similitude of the controversy involved in all the aforesaid cases, they have been heard analogously and are being decided by this common order, however, for the sake of convenience, the facts are being extracted from WP No. 4953/2008.

The petitioners have filed the present petition under Article 226/227 of the Constitution of India challenging the legality and propriety of the order dated 01.04.2008 (Annexure P/1) passed by the respondent No.2, whereby representation submitted by the petitioners pursuant to the order dated 26.09.2005 passed by the High Court in Misc. Petition No. 3835/1993, has been rejected in a most arbitrary manner, without going through the record of the ceiling case and without appreciating the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (Hereinafter referred to as 'the Act, 1976').

It is contended by the counsel for the petitioners that the agricultural land measuring 4.12 acres out of Bandobast No. 660, Khasra No. 203 and 0.42 acres of land out of Khasra no.204, total area 4.54acres (1,97,760 Sq. Ft.) was purchased in the joint name of Smt. Magan Bai,W/o late Choudhary Chandrabhan Jain and Shri Ashok Jain (Petitioner No.1) from Baini Prasad Tandan, Purushottam Tandan, Harimohan Tandan & others by a registered sale deed dated 11.02.1970.

It is submitted that one Dr. P.C. Jain, S/o late Choudhary Chandrabhan Jain (brother of petitioner No.1), after the death of Smt. Magan Bai, who died on 16.11.1976, prepared a forged Will of Smt. Magan Bai, and on the basis of said forged Will got mutated his name in the revenue records of the abovementioned agricultural land measuring 4.54 acres in year 1976-

Thereafter the name of Dr. P.C. Jain was recorded as the owner of the said land.

It is submitted that when the said fact came in the knowledge of the daughters of late Magan Bai, they filed a suit i.e. Civil Suit No. 10-A/1983 against Gulab Chand Jain, P.C. Jain and Ashok Jain. Vide judgment and decree dated 07.01.1985, the court below decreed the suit and declared the plaintiffs as owners. Consequently, the names of all the nine brothers and sisters were recorded in the revenue records namely, (1) Smt. Sandhya Vaidhya; (2) Smt. Chameli Bai; (3) Smt. GeetaJain; (4) Smt. Shakuntala Jain; (5) Shri Gulab Chand Jain; (6) Dr. PooranChand Jain @ Kamal Kumar; (7) Shri Ashok Kumar Jain; (8) Smt Suman Jainand (9) Smt. Shushila Jain against Khasra Nos. 203/1 and 204/6 area 1.838 hectares. Copy of Khasra Panchsala is Annexure P/2.

It is submitted that the petitioner No.1 applied for partition and vide order dated 01.07.1987 (Annexure P/3), partition of the land was done amongst the parties by metes and bounds and the possession of the respective portion of the land was taken by the persons concerned. As per partition, petitioner No.1 became the owner of the land measuring 16146 sq. ft. and was put in possession. Thereafter, petitioner No.1 sold the land measuring 10146 Sq.Ft. out of the said total land to petitioner No.2 vide registered sale deed dated 21.06.2001 and since then petitioner No.2 is in possession.

It is submitted that the Competent Authority, Urban Land Ceiling, Jabalpur initiated proceeding against Dr. P.C. Jain (brother of petitioner No.1) under the Act and accordingly Revenue Case No. 696/A-90-B-9/76 was registered. Vide order dated 16.12.1980, the authority declared the land measuring 1,81,614 Sq.Ft. out of Khasra No. 203/1 and 204/6 total measuring 1,97,760 Sq.Ft. held by Dr. P.C. Jain as surplus. When this fact came to the knowledge of other eight family members of Dr. P.C. Jain, they intervened in the ceiling proceedings. Thereafter vide order dated 27.01.1987 the competent authority granted right of the land in question to Dr. P.C. Jain including eight other family members and on that basis, total 1,45,314 sq.ft. of land had fallen in the share of Dr. P.C. Jain. The authority declared 45,846 sq.ft. of land as surplus excluding 6600 sq.ft. land and without granting opportunity to the other share holder, directed to prepare a final statement under Section 9 of the Act, 1976. Copy of order dated 27.01.1987 is Annexure P/4. It is submitted that the competent authority ought to have divided the land in question into 9 equal share and thereafter should have calculated the ceiling limit as per the provisions of the Act, 1976, which has not been done rendering whole proceedings illegal and void.

It is further submitted that Dr. P.C. Jain filed an application under Section 45 of the Act, 1976, however, vide order dated 09.04.1987 the said application was rejected and the authority directed to prepare the final statement under Section 9 of the Act, 1976, copy whereof was served to Dr. P.C. Jain on 05.05.1987. Thereafter, a notification under Section 10(1) of the Act, 1976 was published in the Gazette dated 03.07.1987 in the name of Dr. P.C. Jain alone whereas as per Section 10(1) of the Act, 1976 after service of statement under Section 9 on the person concerned, a notification should have been published giving particualrs of vacant land of the person concerned in excess of ceiling limit, however, no statement has been served on all the persons i.e. nine units and it was served only on Dr. P.C. Jain. As such notification issued under Section 10(1) of the Act, 1976 is contrary to the provisions of the Act. Copy of notification is Annexure P/5.

It is submitted that vide order dated 08.01.1988 direction was issued to submit the map of the land willing to surrender. A notification was issued under Section 10(3) of the Act, 1976 in the same manner as that of Section 10(1) in contravention of the provisions of the Act. Copy of notification is Annexure P/6. Thereafter, the proposed map was filed, which was rejected vide order dated 30.11.1988 and the authority directed to prepare a map and send the same to Tahsildar, Nazul for taking possession. An appeal was preferred against the said order before the Commissioner, Jabalpur. The Additional Commissioner, vide order dated 06.12.1989 allowed the appeal and set aside the order dated 30.11.1988.

After receiving the record of the proceedings from the appellate authority, the competent authority issued notices to the land holders on 06.06.1990 and fixed the case for 22.08.1990, however, hearing could not take place as the case was called by the State for proceeding under Section 33 of the Act, 1976. Thereafter, on 18.11.1992 proceedings commenced and proposed map was filed, however, the authority vide order dated 28.11.1992 (Annexure P/7) rejected the proposal submitted by Dr. P.C. Jain and directed Revenue Inspector to submit proposal of land vested in the State. An appeal was preferred against the order dated 28.11.1992, however, the competent authority vide order dated 26.12.1992 directed the Tahsildar for taking possession of the land as per map submitted by RI and fixed the case for 06.01.1993. Thereafter, on 06.01.1993 the Competent Authority recorded in the order sheet that before directing Tahsildar Nazul to take possession, notice under Section 10(5) of the Act, 1976 be issued to the land holders.

It is contended by the counsel for the petitioners that the perusal of the order sheet dated 06.01.1993 reveals the very fact that on which date notice under Section 10 (5) of the Ceiling Act was actually issued to the land owners is missing, which creates a serious and reasonable doubt that no notice under Section 10 (5) was ever issued. It is submitted that in the right side of the said order sheet a note dated 22.01.1993 is endorsed to the effect that notice under Section 10(5) after service on Dharak is annexed.

It is submitted that thereafter the Competent Authority while deciding an application filed by the respondents therein, passed a detailed order dated 12.02.1993 (Annexure P/8) and directed the Tahsildar Nazul to take possession of the land in question as per the proposed map submitted by the R.I. within 4 days. When the counsel appearing for the land holders came to know about issuance of notice Under Section 10(5) of the Act, 1976, he requested for supply of the said notice, which was supplied, which is evident from Annexure P/8. Thereafter, an application for stay was filed in appeal no. 56/A-90-B-9/92-93 pending before the Appellate Authority. The Appellate Authority vide order dated 17.02.1993 (Annexure P/9) was pleased to grant stay and summoned the record of ceiling case.

It is further submitted that copy of the stay order was presented before the Competent Authority on 18.02.1993 whereupon the Tahsildar was asked that in case possession of the land is not taken, the same be stayed. Thereafter, on 04.03.1993 possession report was received from Tahsildar Nazul and it was directed to send the record to the Appellate Authority. However, vide order dated 23.08.1993 (Annexure P/1), the appellate authority rejected the appeal directing to submit a proposal of surrendering land in such a way so that single portion of land is made available to the State.

It is submitted that the petitioners assailed the order dated 23.08.1993 by filing a petition before this Court, which was registered as MP No. 3835/1993. The respondents also filed return to the petition. The said petition was disposed of with the direction to the competent authority to cause an inquiry after affording an opportunity of hearing to the petitioners to find out whether the possession has been actually taken over in accordance with the section 10 of the parent Act. If the possession has not been taken over as per law and there is any violation the possession shall rest with the petitioners and all proceedings would stand abated as per section 4 of the Repeal Act.

Thereafter, the petitioners made representation vide Annexure P/13 for conducting enquiry as per the direction of the Court, however, the Additional Collector refused to conduct enquiry on the ground that in absence of notification notifying him as Competent Authority, he cannot conduct any enquiry. The Additional Collector vide letter dated 20.12.2007 (Annexure P/15) requested the Principal Secretary, Revenue Department either to notify him as Competent Authority or to authorize Collector/Additional Collector for conducting inquiry.

It is contended that the authority has taken the aforesaid steps just to circumvent the order passed by this Court and to flout the same.

It is contended by the counsel for the petitioners that instead of deciding the representation of the petitioner, Tahsildar initiated eviction proceedings treating the petitioners encroachers. The petitioners preferred a review petition i.e. MCC No. 535/2006, which was disposed of vide order dated 10.03.2006 with a direction that Tahsildar shall understand the order and take appropriate steps, however, the respondent No. 4 demolished the boundary wall constructed over the land.

It is contended that thereafter Additional Collector proceeded with the case of the petitioners and called the enquiry report and the matter was fixed for 07.02.2008. It is submitted that the petitioner were not served with any notice regarding fixing of date in the case. However, the petitioner No. 2 was shocked to know that the final order has been passed on 01.04.2008 (Annexure P/1) in the matter. It is contended that the impugned order has been passed behind the back of the petitioner and misleading them. It is submitted that the order has been passed without hearing the petitioners and in violation of the order dated 26.09.2005 (Annexure P/11) and as such the order is illegal and void and is liable to be set aside.

It is contended that the Competent Authority has failed to conduct enqiry as per the provisions of Section 10 of the Ceiling Act as directed by the Hon’ble High Court vide order dated 26.09.2005 (Annexure P-11).Therefore, the impugned order dated 01.04.2008 (Annexure P-1) is arbitrary, illegal, perverse and as such the same is liable to be quashed.

It is contended that although as per respondents, the possession of 45846 Sq.Ft. of land in question was taken on 15.02.1993 and the record was corrected accordingly, but from the admitted facts it is evident the possession, if any, was taken in contravention to the provisions of Section 10 (5) & (6) of the Act, 1976, according to which, the Competent Authority cannot take possession of land before the expiry of 30 days from the service of the notice to the person who is in possession and after the expiry of 30 days, if the person fails to deliver the possession then only the Competent Authority may take possession of the vacant land and may use force.

It is contended by the counsel for the petitioners that in the present case as per the order sheet dated 12.02.1993 the notice under Section 10 (5) was served to counsel of land holders on 12.02.1993, but the possession was taken by the Tahsildat Nazul on 15.02.1993, which itself makes it clear that the possession, if any, taken by the respondents is illegal and in contravention to the provisions of Section 10 of the Act, 1976. Therefore, in view of the order dated 26.09.2005 (Annexure P/11) passed by this Court, since the possession of the land has not been taken over as per law and there is violation of the provisions of the Act, the possession shall rest with the petitioners and all proceedings thereto shall stand abated as per Section 4 of the Repeal Act.

It is further contended that without passing of final statement and demarcating the vacant land, the proceedings under Section 10 of the Act, 1976 cannot be initiated.

It is contended that the paper possession was taken by the respondentno.3 after the order dated 12.02.1993 (Annexure P-8). The competent authority directed the Revenue Inspector to take possession and correct the records and submit the report and as submitted the report was received, the possession was taken by the RI and accordingly the record was corrected. It is submitted that the perusal of the record reveals that no possession report was submitted by the RI, rather a report dated 17.02.1993 (Annexure P/27.), is on record, which shows that Patwari had taken over possession. Thus, it is clear that the Tehsildar Nazul has not taken over the possession and the alleged possession is without authority of law and is nullity.

It is contended by the counsel for the petitioners that the enquiry conducted by the competent authority is a face saving and mere eye wash. By the impugned order, the authority has tried to cover up earlier illegal acts. The authority, while passing the impugned order, has deliberately not considered the mandatory provisions of the Act, 1976. Consequently, as the possession has not been so far taken by the respondents and the proceedings in ceiling case are still pending, therefore in view of Section 4 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 the proceedings of ceiling case stand abated. Hence, this petition.

To bolster his submission, counsel for the petitioners has relied on a judgment passed by the Hon'ble Apex Court in the case of Ramanlal Bhailal Patel and others vs. State of Gujrat reported in (2008) 5 SCC 449.

The respondents have filed a short reply denying the averments made in the petition. It is contended by the respondents that in compliance of the order dated 26.09.2005 passed in WP No. 3835/1993, the respondent No. 2 has conducted a detailed enquiry. It is contended that the respondent No. 3 after giving proper notice to the petitioners under Section 10 (5) dated 07.01.1993 (Annexure R/1) and granting adequate opportunity to the petitioners, possession of the excess land admeasuring 45846 sq. feet. (4259.23 sq. meter) has been taken on 15.02.1993. It is contended that the said notice was duly served on Dr. Pooran Chand Jain, S/o Chandrabhan Jain, who was the original land owner of total area i.e. 1,97,760 sq. ft., out of which, area of 1 unit of Pooran Chand Jain comes to 16,146 sq.ft. Copy of service of notice is Annexure R/2. It is contended that since the notice of possession has already been served to land owner Dr. Pooran Chand Jain, as required under the Act, 1976 and the procedure prescribed under Section 10 of the Act, 1976, therefore, the possession taken by the competent authority cannot be said to be against the provisions of the Act. Copy of possession letter dated 15.02.1993 is Annexure-R/3.

It is contended by the respondents that the Coordinate Bench of this Court in WP No. 3534/2005 decided on 01.03.2006 (Annexure R/4) has already held that once the notice under Section 10 (5) of the Act of 1976 for taking over possession has been served on the original land owner, the subsequent action of receipt of possession, which is signed by the witnesses and endorsed by the Tehsildar, cannot be doubted. It is submitted that the said order of the coordinate Bench has been affirmed by the Division Bench in WA No. 91/2006 and also by Hon'ble Supreme Court. Copy of the judgment passed in WA No. 91/2006 is Annexure R/5.

It is further contended that in compliance of the order dated 26.09.2005 passed in WP No. 3835/1993, the respondent no. 2 has initiated the proceedings according to the order passed by this Court and the representation of the petitioners was considered by the competent authority and after scrutiny of the records of the original proceedings, it was found that the possession of the land in question was taken from the original land owner by following due process of law and on the commencement of the Repeal Act, no proceedings whatsoever was pending in respect of the land in question before in forum, therefore, the petitioners are not entitled to claim any relief by virtue of enforcement of Repeal Act. The respondent No. 2 has rightly rejected the representation of the petitioners by passing s detailed order dated 01.04.2008, which is impugned herein. Hence, no interference is called for by this Court under the extraordinary jurisdiction under Article 226 of the Constitution of India. The petition being bereft of merit, deserves to be dismissed.

Heard learned counsel for the parties and perused the record.

Now, the only controversy which has been agitated by the petitioners before this court in this petition is that the authority in compliance of the order dated 26-09-2005 in W.P.No.3835/1993 has passed an order without conducting an enquiry, which has been directed and expected from the authority. It is further submitted that the authority vide impugned order dated 01.04.2008, Annexure P/1, has passed an order absolutely ignoring the direction issued by this court in the earlier petition. This court vide order dated 26-09-2005 in W.P.No.3835/1993 has issued following directions :

From perusal of the said direction it was incumbent upon the authority to conduct an enquiry as per the mandate of the order of the court and thereafter ought to have passed an order. This court in the earlier round of litigation has clearly held that the court has no scintilla of doubt as has been asseverated in the petition, the petitioner is still in possession. It is further observed that if the statutory notice period had not been given it is difficult to hold that possession has been taken over and directed competent authority to cause an enquiry after affording an opportunity of hearing to the petitioner to find out whether the possession has been taken over in accordance with the section 10 of the Parent Act. It is also observed that if the possession has not been taken over as per law and there is any violation, the possession shall rest with the petitioner and all the proceeding would stand abated as per section 4 of the Repeal Act.

When the impugned order dated 01.04.2008 (Annexure P/1) has been scrutinized, it is found that the authority in its order though has recorded the finding that during the proceeding vide order dated 27-1-1987 the competent authority had found that there are nine units constituting a holder and accordingly by calculating the area of ceiling limit of nine units, the area has been reduced from total area of 1,91,160 sq.ft. to 145314 sq.ft.. Accordingly, rest of 45846 sq.ft. land has been declared to be in excess of the ceiling limit and passed direction to issue final statement.

It is observed by the authority that Dr. P.C. Jain against whom the ceiling proceedings were originally initiated shall be deemed to be holder of the land. It is also observed that there is no order of the civil court whereby the land has been partitioned amongst the nine joint owners and even assuming that if such order has been passed then also it is not enforceable as per section 42 of the Act of 1976. Therefore, the holder or objector cannot claim that they be given possession of the land according to their share apart from the entitlement held by the authority.

It is further submitted that as the appellate authority had also given choice to P.C. Jain, which has been exercised by the holder, therefore, the objections raised by the petitioners have been rejected. It is further observed that the Tehsildar by its report dated 14-03-2008 has found that excess land admeasuring area 45,846 sq.ft. has been recorded as Najul State Government in the revenue record by the orders of the competent authority. It is further observed that as per report the then Tehsildar Najul Jabalpur in case No.88/B-121/92-93 has taken over possession vide possession letter dated 15-02-93 and accordingly the record has been corrected.

From perusal of the order it is found that the authority has not addressed the question of the statutory limitation of the notice as observed by this court in the earlier order and has also not given any finding on the said issue. This court had observed in the earlier writ petition that if the statutory notice period had not been given, it is difficult to hold that possession has been taken over. Therefore, the authority ought to have given finding on the notice by which the possession has been taken over; but, the authority has not dwelt upon the issue. When this court has perused the record, it is found that possession letter contains the date 15.2.1993. The said possession letter contains the names in the column of Bhoomi Swami which reads as :- Dr. PC Jain, Gulabchand Jain, Ashok Kumar s/o Chandrabhan Jain, Lordgunj, Jabalpur. Now this possession letter contains the name of three Bhoomi Swamis. Notice of Section 10(5) is also attached at page 175 just next to the page of possession letter in the record, which contains the recital, which has been referred to P.C. Jain and according to which the person was asked to deliver the possession before 08-03-1982. On the back leaf of said notice, the date contains i.e. 06-03-1982 of endorsement that notice has been delivered. The next page of it contains at page 177, possession taking over letter dated 08-03-1982 i.e. on the same date and it contains the signature of the Authority but not of the holder.

The authority in its entire order could not give any finding on the said notices, which are found attached in the office record. It seems that the authority either did not understand the context of the order or deliberately avoided to give any finding because it is adverse to the interest of the State. The Collector is directed to take note of this fact that the order passed by this court has not been complied with in its true spirit, however, the order is under challenge under the writ jurisdiction. Therefore, instead of taking any contempt proceeding against the authority, who has passed the impugned order dated 01.04.2008 (Annexure P-1), the Collector is directed to take up the matter on the departmental and administrative side.

Now, when the question, which has been dealt with by the authority in regard to holding P.C.Jain as the holder for the entire land is examined then it is found that Section 3 of the Act of 1976 provides that no person shall be entitled to hold any vacant land in excess of the ceiling limit. Section 3 of the Act, 1976 reads as under:-

Persons not entitled to hold vacant land in excess of the ceiling limit-Except as otherwise provided in this Act, on and from the commencement of this Act, no person shall be entitled to hold any vacant land in excess of the ceiling limit in the territories to which this Act applies under sub-section (2) of section 1."

Similarly, Section 6 of the Act, 1976 provides that every person holding vacant land in excess of ceiling limit at the commencement of the Act shall within such period it was required to file a statement before the competent authority having jurisdiction specifying the location, extent, value and such other particulars as may be prescribed of all vacant lands and of any other land on which there is a building whether or not with a dwelling unit therein held by him (including the nature of his right, title or interest therein and also specifying the vacant land within the ceiling limit which he desires to retain). Section 6 of the Act, 1976 reads as under:-

Persons holding vacant land in excess of ceiling limit to file statement.-(1) Every person holding vacant land in excess of the ceiling limit at the commencement of this Act shall, within such period as may be prescribed, file a statement before the competent authority having jurisdiction specifying the location, extent, value and such other particulars as may be prescribed of all vacant lands and of any other land on which there is a building, whether or not with a dwelling unit therein, held by him (including the nature of his right, title or interest therein) and also specifying the vacant lands within the ceiling limit which he desires to retain:

Provided that in relation to any State to which this Act applies in the first instance, the provisions of this sub-section shall have effect as if for the words "Every person holding vacant land in excess of the ceiling limit at the commencement of this Act", the words, figures and letters "Every person who held vacant land in excess of the ceiling limit on or after the 17th day of February, 1975 and before the commencement of this Act and every person holding vacant land in excess of the ceiling limit at such commencement" had been substituted.

Explanation.-In this section, "commencement of this Act" means,-

If the competent authority is of opinion that -

The competent authority may, if it is satisfied that it is necessary so to do, extend the date for filing the statement under this section by such further period or periods as it may think fit; so, however, that the period or the aggregate of the periods of such extension shall not exceed three months.

The statement under this section shall be filed,-

Explanation.-For the purposes of this sub-section, "principal officer",-

From the perusal of the record it is found that the other co-owners of the land had submitted their objections before the competent authority. The competent authority treating them to be the co-owners had found that the person is entitled to have 9 units and accordingly the area of 9 units have been reduced from the total area and accordingly ceiling limit has been assessed of 45,846 square feet. Earlier, the total land was found to be of 1,97,760 square feet, out of which 6600 was reduced as the lands have been found to be on the road on Jabalpur-Damoh State highway. Accordingly, out of 1,91,160 holding entitlement of 9 units, 1,45,314 square feet has been reduced and accordingly the excess lands have been found to be 45,846 square feet vide order dated 27.1.1987.

The Act of 1976 provides definition of person in Section 2 sub-section (i) which reads as under :-

"Section 2(i) "person" includes an individual, a family, a firm, a company, or an association or body of individuals, whether incorporated or not;"

According to said definition, a person includes an individual, a family, a firm, a company, or an association or body of individual whether incorporated or not. The Hon’ble Apex Court in the case of Ramanlal Bhailal Patel (supra) while dealing with the meaning and scope of 'person' under the Gujarat Agriculture Land Ceiling Act 1960 having the same definition of person having perimetria provision in para 29 has held as under :-

Normally, where a group of persons have not become co-owners by their own volition with a common purpose, they cannot be considered as a “person”. When the children of the owner of a property succeed to his property by testamentary succession or inherit by operation of law, they become co-owners, but the co-ownership is not by volition of parties nor do they have any common purpose. Each can act in regard to his/her share, on his/her own, without any right or obligation towards the other owners. The legal heirs though co-owners, do not automatically become an “association of persons/body of individuals”. When different persons buy undivided shares in a plot of land and engage a common developer to construct an apartment building, with individual ownership in regard to respective apartment and joint ownership of common areas, the co-owners of the plot of land, do not become an “association of persons/body of individuals”, in the absence of a deeming provision in a statute or an agreement. Similarly, when two or more persons merely purchase a property, under a common sale deed, without any agreement to have a common or joint venture, they will not become an “association of persons/body of individuals”. Mere purchase under a common deed without anything more, will not convert a co-ownership into a joint enterprise. Thus when there are ten co-owners of a property, they are ten persons and not a “body of individuals” to be treated as a “single person”. But if the co-owners proceed further and enter into an arrangement or agreement to have a joint enterprise or venture to produce a common result for their benefit, then the co-owners may answer the definition of a “person”."

It is held by the Hon’ble Apex Court that when there are several co-owners then they are all 'persons' in their own capacity and not body of individuals “to be treated as a single person”. But if the co-owner proceeds further and enter into an agreement or agreement to have a joint enterprise or venture to produce a common result for their benefit, then the co-owners jointly may fall within the definition of a person.

In the present case in hand, as there is no such agreement which has been submitted by the persons/holders/co-owners, therefore, in absence of such agreement there was no reason for the authority to deem one person/ co-owner P.C.Jain as person/holder for entire land. More so, the competent authority has taken note of the fact that there are nine co-owners who owns the land and, accordingly, made nine units to calculate and re-assess the total excess limit of the ceiling. When such exercise was done by the authority, at the relevant point of time the authority should have dwelt upon the issue and accordingly initiated proceedings against all the members but instead of taking it in accordance of law, as laid down by the Hon'ble Apex Court or as per the definition clause, the authority proceeded with the same proceedings and ultimately has shown that the possession has been taken over on 15.02.1993 in the light of the notice dated 12.02.1993. The possession letter also contains three names. When the authority itself has recorded nine units but holding that the purpose can be served by treating P. C. Jain as a holder for the purpose of ceiling, then there was no requirement for writing three names and in absence of such persons, such possession, which has been taken over, cannot be said to be a legal possession, that may be a paper possession but not a possession in accordance with law, as directed by this Court in the earlier round of litigation.

It is found by this court in the earlier round of litigation that the physical possession is still with the petitioners then this Court does not fit right to sit over and make the judgment over it once the finding has already been arrived by this court in the earlier round of litigation. As no challenge has been made to the said findings, that has attained finality.

The State Govt. by virtue of Section 3(2) cannot take possession after vesting under Section 10(3) of the Act 1976 because as found by this Court that the entire proceedings initiated against one person despite recording that it contains nine shares and as per the law laid down by the Hon’ble Apex Court in the case of Ramanlal (supra), all were required to be treated as persons in their independent capacity for proceedings under the Act of 1976 coupled with the fact that in the earlier round of litigation the Court has already found that the possession remained with the petitioners, the entire proceedings under the Act of 1976 have been found to be vitiated against the petitioners.

Therefore, in the considered opinion of this Court, the Authority has not passed an order in consonance of the direction issued by this Court and therefore, failed in its jurisdiction to address the issue directed by this Court to be decided. As this Court has categorically scrutinized the record and found that possession was not taken in accordance with law, therefore there is no need to again remand the matter back to the authority with certain direction. Therefore, in the considered opinion of this Court, the possession as per Section 10(5) of the Act has not been taken over from the petitioners in accordance with law. It remains with the petitioners. Therefore, by application of the repeal Act, Section 3 and Section 4, the ceiling proceeding stood abated after coming into force of the repeal Act.

The petitions stand allowed. The authorities are directed to record the entries accordingly.