Prahlad Singh & Ors vs Union Of India & Ors

Whether the acquired land can be treated to have vested in the State

Government under Section 16 of the Land Acquisition Act, 1894 (for short,

"the Act") on the making of an award by the Collector though the actual and

physical possession continues with the landowner is the question which

arises for consideration in this appeal filed against the order of the Division

Bench of the Punjab and Haryana High Court whereby the writ petition filed

by the appellants questioning the acquisition of their land was dismissed.

In exercise of the power vested in it under Section 4(1) of the Act, the

Government of Haryana issued notification dated 17.4.2002 for the

acquisition of the appellants' land along with other parcels of land of village

Baloure, Tehsil Bahadurgarh, District Jhajjar for development and utilization

thereof for residential, commercial and institutional parts of different sectors of

Bahadurgarh.

The predecessors of the appellant and other landowners filed objections

under Section 5-A(1) and prayed that their land may not be acquired because

they had developed the same for agricultural activities like dairy, gardening

etc. by investing huge money. They claimed that the acquisition proceedings

were initiated without application of mind and there was no justification to

acquire fertile and irrigated land. They also pointed out that land acquired for

the same purpose in 1965 was still lying vacant and undeveloped. Another

objection taken by the predecessors of the appellant and other landowners

was that the area proposed to be acquired falls in the National Capital Region

under the National Capital Region Planning Board Act, 1985 (for short, "the

1985 Act") and in the Regional Plan prepared by the National Capital Region

Planning Board (for short, "the Board"), land in question has been shown as

part of Green Belt/Green Wedge and, as such, the same cannot be acquired

for residential, commercial and institutional purposes. In support of this plea,

the landowners relied upon an order passed by this Court in C.A. Nos.4384

and 4385 of 1994.

Although, it is not clear from the record as to how the Collector dealt with

the objections and submitted recommendations to the State Government, this

much is evident that the State Government issued declaration dated

10.4.2003 under Section 6 of the Act reiterating its resolve to acquire the

entire area notified under Section 4(1) on 17.4.2002. Thereafter, the Land

Acquisition Collector passed award dated 25.6.2004.

Immediately after pronouncement of the award, the predecessors of the

appellant and other landowners filed 69 writ petitions questioning the

acquisition proceedings on various grounds including non-consideration of

their objections, non-application of mind by the Collector and the concerned

authorities of the State Government and violation of the provisions of the

1985 Act and Regional Plan 2001 prepared by the Board. They pleaded that

being a participating State, the State of Haryana is bound to act in

consonance with the provisions of the 1985 Act and it cannot acquire land in

violation of Regional Plan 2001. They relied upon the judgment of this Court

in Ghaziabad Development Authority v. Delhi Auto & General Finance (Pvt.)

Ltd. (1994) 4 SCC 42 and pleaded that the land which has been identified in

Regional Plan 2001 as Green Belt/Green Wedge cannot be used for the

purpose of urbanization. They also claimed that possession of the acquired

land was still with them and they were cultivating the same.

The Division Bench of the High Court did not deal with the grounds on

which the appellants questioned the acquisition of their land including the one

that the impugned acquisition was contrary to the provisions of the 1985 Act

and Regional Plan 2001 and dismissed the writ petitions by observing that

once the land has vested in the State Government, the writ petitioners do not

have the locus to challenge the acquisition proceedings. The Division Bench

relied upon the judgments of this Court in Municipal Corporation of Greater

Bombay v. Industrial Development and Investment Company (P) Ltd. (1996)

11 SCC 501, C. Padma v. Deputy Secretary to the Government of Tamil

Nadu (1997) 2 SCC 627, Municipal Council, Ahmednagar v. Shah Hyder Beig

(2000) 2 SCC 48, Star Wire (India) Ltd. v. State of Haryana (1996) 11 SCC

698, Swaika Properties (P) Ltd. v. State of Rajasthan (2008) 4 SCC 695 and

Sawaran Lata v. State of Harayana (2010) 4 SCC 532 and held as under:

"It is, thus, well settled that no writ petition would be competent after

passing of award because possession of land is taken and it is deemed to

vest in the State Government free from all encumbrances. The petitioners

would of course be entitled to compensation at the market value prevalent

at the time of issuance of notification under Section 4 of the Act in

accordance with the award subject to further remedies of reference etc.

The petitioners would also be entitled to compensation for the user of the

land from the date of possession to the date of notification issued under

Section 4. Thus, no ground is made out to accept the contention raised by

the petitioners and to quash the acquisition proceedings subject matter of

these petitions."

Mrs. Rani Chhabra, learned counsel appearing for the appellants argued

that the impugned order is liable to be set aside because the premise on

which the High Court dismissed the writ petition, namely, vesting of the

acquired land in the State Government is ex facie erroneous. Learned

counsel submitted that at no point of time possession of the acquired land

was taken by the State authorities and, therefore, the same cannot be treated

to have vested in the State Government. Mrs. Chhabra invited our attention to

the assertion contained at page 'Y' of the List of Dates and documents

marked Annexures-P5 and P6 to show that physical possession of the land is

still with the appellants. Learned counsel emphasised that the appellants

have been in continuous possession of the land and carrying on agricultural

operations and submitted that the High Court gravely erred by declaring that

the acquired land will be deemed to have vested in the State Government

under Section 16 of the Act. Mrs. Chhabra submitted that the High Court

should have examined the important issues raised by the appellants including

the violation of the provisions of the 1985 Act and Regional Plan 2001

prepared by the Board in which the acquired land is shown as part of the

Green Belt/Green Wedge and decided the writ petition on merits keeping in

view the fact that the same remained pending for 10 years and during that

period the landowners had been undertaking agricultural operations.

Learned counsel appearing for the State could not draw our attention to

any material to show that actual and physical possession of the acquired land

had been taken by the State authorities. He, however, argued that by virtue of

Section 16 of the Act the acquired land will be deemed to have vested in the

State Government because the Land Acquisition Collector has passed award

on 25.6.2004.

We have given our serious thought to the entire matter and carefully

examined the records. Section 16 lays down that once the Collector has

made an award under Section 11, he can take possession of the acquired

land. Simultaneously, the section declares that upon taking possession by the

Collector, the acquired land shall vest absolutely in the Government free from

all encumbrances. In terms of the plain language of this section, vesting of

the acquired land in the Government takes place as soon as possession is

taken by the Collector after passing an award under Section 11. To put it

differently, the vesting of land under Section 16 of the Act presupposes actual

taking of possession and till that is done, legal presumption of vesting

enshrined in Section 16 cannot be raised in favour of the acquiring authority.

Since the Act does not prescribes the mode and manner of taking

possession of the acquired land by the Collector, it will be useful to notice

some of the judgments in which this issue has been considered. In Balwant

Narayan Bhagde v. M.D. Bhagwat (1976) 1 SCC 700, Bhagwati J., (as he

then was), speaking for himself and Gupta J. disagreed with Untwalia J., who

delivered separate judgment and observed:

".........We think it is enough to state that when the Government proceeds

to take possession of the land acquired by it under the Land Acquisition

Act, 1894, it must take actual possession of the land, since all interests in

the land are sought to be acquired by it. There can be no question of

taking "symbolical" possession in the sense understood by judicial

decisions under the Code of Civil Procedure. Nor would possession

merely on paper be enough. What the Act contemplates as a necessary

condition of vesting of the land in the Government is the taking of actual

possession of the land. How such possession may be taken would

depend on the nature of the land. Such possession would have to be

taken as the nature of the land admits of. There can be no hard and fast

rule laying down what act would be sufficient to constitute taking of

possession of land. We should not, therefore, be taken as laying down an

absolute and inviolable rule that merely going on the spot and making a

declaration by beat of drum or otherwise would be sufficient to constitute

taking of possession of land in every case. But here, in our opinion, since

the land was lying fallow and there was no crop on it at the material time,

the act of the Tehsildar in going on the spot and inspecting the land for

the purpose of determining what part was waste and arable and should,

therefore, be taken possession of and determining its extent, was

sufficient to constitute taking of possession. It appears that the appellant

was not present when this was done by the Tehsildar, but the presence

of the owner or the occupant of the land is not necessary to effectuate the

taking of possession. It is also not strictly necessary as a matter of legal

requirement that notice should be given to the owner or the occupant of

the land that possession would be taken at a particular time, though it

may be desirable where possible, to give such notice before possession

is taken by the authorities, as that would eliminate the possibility of any

fraudulent or collusive transaction of taking of mere paper possession,

without the occupant or the owner ever coming to know of it."

(emphasis supplied)

In Balmokand Khatri Educational and Industrial Trust v. State of Punjab

(1996) 4 SCC 212, the Court negatived the argument that even after

finalization of the acquisition proceedings possession of the land continued

with the appellant and observed:

"It is seen that the entire gamut of the acquisition proceedings stood

completed by 17-4-1976 by which date possession of the land had been

taken. No doubt, Shri Parekh has contended that the appellant still

retained their possession. It is now well-settled legal position that it is

difficult to take physical possession of the land under compulsory

acquisition. The normal mode of taking possession is drafting the

panchnama in the presence of panchas and taking possession and giving

delivery to the beneficiaries is the accepted mode of taking possession of

the land. Subsequent thereto, the retention of possession would

tantamount only to illegal or unlawful possession".

In P.K. Kalburqi v. State of Karnataka (2005) 12 SCC 489, the Court

referred to the observations made by Bhagwati, J. in Balwant Narayan

Bhagde v. M.D. Bhagwat (supra) that no hard and fast rule can be laid down

as to what act would be sufficient to constitute taking of possession of the

acquired land and observed that when there is no crop or structure on the

land only symbolic possession could be taken.

In NTPC v. Mahesh Dutta (2009) 8 SCC 339, the Court noted that

appellant NTPC paid 80 per cent of the total compensation in terms of

Section 17(3A) and observed that it is difficult to comprehend that after

depositing that much of amount it had obtained possession only on a small

fraction of land.

In Sita Ram Bhandar Society v. Govt. of NCT, Delhi (2009) 10 SCC 501

and Omprakash Verma v. State of Andhra Pradesh (2010) 13 SCC 158, it

was held that when possession is to be taken of a large tract of land then it is

permissible to take possession by a properly executed panchnama. Similar

view was expressed in the recent judgment in Brij Pal Bhargava v. State of

UP 2011(2) SCALE 692.

The same issue was recently considered in C.A. No. 3604 of 2011 -

Banda Development Authority, Banda v. Moti Lal Agarwal decided on

26.4.2011. After making reference to the judgments in Balwant Narayan

Bhagde v. M.D. Bhagwat (supra), Balmokand Khatri Educational and

Industrial Trust v. State of Punjab (supra), P.K. Kalburqi v. State of Karnataka

(supra), NTPC v. Mahesh Dutta (supra), Sita Ram Bhandar Society v. Govt.

of NCT, Delhi (supra), Omprakash Verma v. State of Andhra Pradesh (supra)

and Nahar Singh v. State of U.P. (1996) 1 SCC 434, this Court laid down the

following principles:

"(i) No hard and fast rule can be laid down as to what act would constitute

taking of possession of the acquired land.

(ii) If the acquired land is vacant, the act of the concerned State authority

to go to the spot and prepare a panchnama will ordinarily be treated as

sufficient to constitute taking of possession.

(iii) If crop is standing on the acquired land or building/structure exists,

mere going on the spot by the concerned authority will, by itself, be not

sufficient for taking possession. Ordinarily, in such cases, the concerned

authority will have to give notice to the occupier of the building/structure

or the person who has cultivated the land and take possession in the

presence of independent witnesses and get their signatures on the

panchnama. Of course, refusal of the owner of the land or

building/structure may not lead to an inference that the possession of the

acquired land has not been taken.

(iv) If the acquisition is of a large tract of land, it may not be possible for

the acquiring/designated authority to take physical possession of each

and every parcel of the land and it will be sufficient that symbolic

possession is taken by preparing appropriate document in the presence

of independent witnesses and getting their signatures on such document.

(v) If beneficiary of the acquisition is an agency/instrumentality of the

State and 80% of the total compensation is deposited in terms of Section

17(3A) and substantial portion of the acquired land has been utilised in

furtherance of the particular public purpose, then the Court may

reasonably presume that possession of the acquired land has been

taken."

If the present case is examined in the light of the facts which have been

brought on record and the principles laid down in the judgment in Banda

Development Authority's case, it is not possible to sustain the finding and

conclusion recorded by the High Court that the acquired land had vested in

the State Government because the actual and physical possession of the

acquired land always remained with the appellants and no evidence has been

produced by the respondents to show that possession was taken by

preparing a panchnama in the presence of independent witnesses and their

signatures were obtained on the panchnama.

A reading of the Khasra Girdawari and Jamabandis, copies of which have

been placed on record, shows that actual and physical possession of the

acquired land is still with the appellants. Jamabandis relate to the year 2005-

2006. Copies of notice dated 10/11.2.2011 issued by Uttar Haryana Bijli

Vitran Nigam Ltd. relates to appellant No.1 - Prahlad Singh and this, prima

facie, supports the appellants' assertion that physical possession of the land

is still with them. Respondent Nos. 3 to 6 have not placed any document

before this Court to show that actual possession of the acquired land was

taken on the particular date. Therefore, the High Court was not right in

recording a finding that the acquired land will be deemed to have vested in

the State Government.

The judgments, which have been referred to in the impugned order really

do not have any bearing on the case in hand because in all those cases, the

Court had found that possession of the acquired land had been taken.

In Municipal Corporation of Greater Bombay v. Industrial Development

and Investment Company (P) Ltd. (supra), this Court declined to interfere with

the acquisition proceedings on the ground of delay. The facts of that case

were that after preparation of the draft development plan for 'G' Ward of the

Bombay Municipal Corporation, notification dated 6.7.1972 was issued under

Section 126(2) of the Maharashtra Regional and Town Planning Act, 1966 for

the acquisition of land needed for implementing the development plan.

Respondent Nos.1 and 2, who were in possession of the land as tenants,

filed claim for compensation. They were heard by the competent authority in

1979. In the meanwhile, the Bombay Metropolitan Region Development

Authority Act, 1974 was enacted by the State Legislature and notifications

were issued under that Act. In 1979, City Survey No.503 was de-reserved

from the earlier public purpose of locating the extension of Dharavi Sewage

Purification Plant and the entire land was to be utilized for residential,

commercial, para-commercial and social facilities by the local residents of the

area. After the award was made by the Collector, possession of the acquired

land was taken. The respondents filed writ petition after lapse of four years

from the date of taking possession. The learned Single Judge dismissed the

writ petition but the Division Bench allowed the appeal. This Court held that

once the award was passed and possession was taken, the High Court

should not have exercised its power to quash the award.

In C. Padma v. Deputy Secretary to the Government of Tamil Nadu

(supra), the Court held that once the acquired land vested in the State

Government and compensation was paid after taking possession, the

appellant was not entitled to question the acquisition proceedings. In Municipal Council, Ahmednagar v. Shah Hyder Beig (supra), this Court

reversed the judgment of the Bombay High Court on the ground that they had

moved the Court after 21 years of the issue of notifications under Section 6

and 16 years from the date of making an award and taking of possession. The same view was reiterated in Swaika Properties (P) Ltd. v. State of

Rajasthan (supra). In that case, the writ petition was filed in 1989 after the

award was passed and possession of the acquired land was taken.

In Sawaran Lata v. State of Harayana (supra), the landowners were

denied relief because they had approached the High Court after 8 years of

the notification issued under Section 4(1) and about 5 years of the passing of

award and taking of possession.

In the result, the appeal is allowed. The impugned order is set aside and

the matter is remitted to the High Court for disposal of the writ petition on

merits. The parties are left to bear their own costs.