Allahabad High Court
Ashok vs State Of U.P. And Another on 5 May, 2016
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 34 Case :- WRIT - C No. - 59588 of 2008 Petitioner :- Ashok Respondent :- State Of U.P. And Another Counsel for Petitioner :- S.K. Singh Counsel for Respondent :- C.S.C. Hon'ble Sudhir Agarwal,J.
Hon'ble Shamsher Bahadur Singh,J.
1. Heard Sri Subhash Gosain, Advocate holding brief of Sri S.K. Singh, learned counsel for the petitioner and perused the record.
2. Petitioner claims that though certain land of disputed premises was declared surplus under the provisions of Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the "Act, 1976") but since possession thereof was not taken and in the meantime aforesaid Act, 1976 has been repealed by Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as the "Act, 1999") which came into force on 22.03.1999, in view of Section 3 thereof now possession of alleged surplus land cannot be taken by treating same as vacant land.
3. However, we find from record of this case that learned Standing Counsel produced original record before Court on 26.11.2008 and Court after perusing same found that vide possession certificate dated 19.10.1987 possession of excess/ surplus land was already taken. The order passed by this Court on 26.11.2008, reproduced as under:
"Learned Standing Counsel prays for and is granted four weeks' time to file a counter-affidavit. The petitioner will have thereafter two weeks' time to file rejoinder-affidavit.
Learned Standing Counsel has produced the original record before this Court. After examining the same, we find that the notice under Section 10(3) was issued on 10.2.1987. Thereafter, another Certificate dated 19.10.1987 was issued certifying that possession of the excess land has already been taken. In view of the aforesaid, no case is made out for grant of any interim order.
List after the Affidavits are exchanged."
4. However, pursuant to direction given by this Court respondents have also filed a counter affidavit sworn by Swami Nath Pathak, Deputy Collector, Varanasi and paras 5, 6 and 7 thereof are reproduced hereat:
"5. That final statement accordingly was prepared under Section 9 of the Act on 14.9.1983, which was followed by issuance of notification under Section 10(1) and 10(3) of the Act, which were published in the official gazette on 31.8.1985 and 21.12.1985 respectively. A notice, thereafter under Section 10(5) of the Act was prepared on 10.2.1987.
6. That, there is a Dakhalnama available on the record dated 19.10.1987 notifying the area declared surplus that the possession of the excess vacant was taken by the State, a photo stat copy of which is being annexed herewith and is marked as Annexure No. CA-2 to this counter affidavit. The name of the State was, thereafter, mutated in the revenue record and the land was transferred to Varanasi Development Authority i.e. before the Repeal of the Act.
7. That the petitioner has not impleaded the Varanasi Development Authority which is managing the land in question, and, therefore, the writ petition suffers from non-joinder of necessary party and is liabel to be dismissed on this ground alone."
5. Copy of possession certificate has also been filed as Annexure-2 to the counter affidavit which shows that in presence of witnesses possession of surplus land measuring 4733.37 sq. maters was taken by respondents.
6. Learned counsel for the petitioner then contended that possession is only a paper transaction and actual possession was not taken by respondents.
7. The submission is thoroughly misconceived. In the context of Land Acquisition Act, 1894 (hereinafter referred to as the "Act, 1894") the question as to when it can be said that actual possession of land has been taken by State has been considered by Courts time and again.
8. In the chain of precedents we first come to the Supreme Court's authority in Balwant Narayan Bhagde Vs. M.D. Bhagwat and others, 1976 (1) SCC 700. It is a three Judges judgment. The majority view is the opinion expressed by Hon'ble Bhagwati, J for himself and Hon'ble Gupta, J. while contrary view was expressed by Hon'ble Untwalia, J. His Lordship Untwalia, J. observed that taking possession means taking of possession on the spot. It is neither a possession on paper nor symbolical possession. The Act is silent on the point as to what is the mode of taking possession. Unless possession is taken by written agreement of party concerned, the mode of taking possession obviously would be for the authority to go upon the land and to do some act which would indicate that authority has taken possession on land. It may be in the form of declaration by beat of drum or otherwise or by hanging a written declaration on the spot. Presence of owner or occupant of land to effectuate taking of possession is not necessary. When possession has been taken, owner or occupant of land is dispossessed. Once possession has been taken land vests in Government.
9. The majority judgment delivered by Hon'ble Bhagwati, J. disagreeing with Hon'ble Untwalia, J. said that when State proceed to take possession of land acquired, it must take actual possession of land since all interests on 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 (hereinafter referred to as the "CPC"). Nor would possession merely on paper be enough. The Court further said:
"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 'pot 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 laying 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 added)
10. In General Manager, Telecommunication and another Vs. Dr. Madan Mohan Pradhan and others, 1995 Supp.(4) SCC 268 it was claimed on behalf of State that possession was taken on 12.04.1976 and handed over to Union of India. With regard to mode and manner of possession the Court said:
"It is common knowledge that possession would always be taken under a memo and handing over also would be under a memo. It is a recognized usual practice in all the acquisition proceedings."
11. In State of Tamil Nadu and another Vs. Mahalakshmi Ammal and others, 1996(7) SCC 269 the Court said:
"Possession of the acquired land would be taken only by way of a memorandum, Panchanama, which is a legally accepted norm. It would not be possible to take any physical possession. Therefore, subsequent continuation, if any, had by the erstwhile owner is only illegal or unlawful possession which does not bind the Government nor vested under Section 16 divested in the illegal occupant."
12. The question as to how physical possession of land is to be taken, then was considered in Balmokand Khatri Educational and Industrial Trust Vs. State of Punjab, 1996(4) SCC 212, wherein the Court said in para 4 of the judgment as under:
"4. 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".
(emphasis added)
13. The majority opinion of Balwant Narayan Bhagde (supra) was considered in Tamil Nadu Housing Board Vs. A. Viswam, 1996 (8) SCC 259 wherein also a dispute of actual possession was raised. The Court relying on memorandum of Panchnama prepared by Land Acquisition Officer for taking possession of acquired land and also the letter written by respondent wherein he admitted title of respondent but sought for allotment of an alternative site, held that there was no question of requesting for alternative site if according to respondents the title still vested in him and has not been vested in the State by taking possession. Paras 9 and 10 of the judgment relevant for our purpose is reproduced as under:
"9. It is settled law by series of judgement of this Court that one of the accepted modes of taking possession of the acquired land is recording of a memorandum or Panchanama by the LAO in the presence of witnesses signed by him/them and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. It is common knowledge that in some cases the owner/interested person may not co-operate in taking possession of the land.
10. It is seen that in a letter written by the respondent himself, admitting the title of the Board to the land in the said survey number, he sought for allotment of alternative site. In other words, unless possession is taken and he is divested of the title and the same is vested in the appellant, he cannot make request to the appellant for providing him alternative site. It is not his case that at that stage he was still continuing to have title to the land in dispute. The admission is inconsistent with and incongruous to his interest. He was also aware that award was made and the possession obviously should have been taken thereunder......."
14. The next authority is Larsen and Toubro Ltd. Vs. State of Gujrat and others, 1998 (4) SCC 387. Therein Court referred to Panchnama prepared by Deputy Collector showing that possession was taken and found it sufficient to hold that possession of land in question in that case was taken as contemplated under Act, 1894.
15. In P.K. Kalburqi Vs. State of Karnataka, 2005(12) SCC 489, Court referred to the observations of Hon'ble Bhagwati, J. in Balwant Narayan Bhagde (supra) and said, when there is no crop or structure on the land only symbolic possession would be taken.
16. In Sita Ram Bhandar Society, New Delhi Vs. Lt. Governor, Government of N.C.T. Delhi and others, 2009(10) SCC 501, Court after referring earlier decisions said that while taking possession, symbolic and notional possession is not envisaged under the Act but the manner in which possession is taken must of necessity depend upon the facts of each case. Where a large area of land with a large number of owners is subject matter of possession, Court said, that, it would be impossible for Collector or Revenue officials to enter each bigha or biswa and take possession thereof. Pragmatic approach has to be adopted by Court. It further said:
"...one of the methods of taking possession and handing it over to the beneficiary department is the recording of a Panchnama which can in itself constitute evidence of the fact that possession had been taken and the land had vested absolutely in the Government."
17. Similarly in Brij Pal Bhargava and others Vs. State of U.P. and others, 2011(5) SCC 413 accepting possession Court upheld the issue of possession on the basis of possession receipts and said that mere fact that in revenue record there is no mutation or that erstwhile owner actually is still occupying acquired land would make no difference.
18. After having a retrospect of earlier authorities, in Banda Development Authority, Bana Vs. Moti Lal Agarwal and others, 2011(5) SCC 394, Court crystallized certain principles to determine when possession taken would be held to be actual physical possession by authorities and it reads as under:
"37. The principles which can be culled out from the above noted judgments are:
(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 authority concerned 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(3-A) 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."
19. In Jagdish and others Vs. State of U.P. and others, 2008(5) ADJ 5, (a Division Bench judgment of this Court) wherein one of us (Hon'ble Sudhir Agarwal, J.) was a member, Court referred to an authority letter of Special Land Acquisition Officer containing endorsement of Executive Engineer taking possession. It was held that possession was taken by revenue authorities.
20. In view of above discussion we are of the view that possession of surplus land measuring 4733.37 sq. maters, which was so declared vide order dated 14.09.1983 and notification under Section 10(1) and 10(3) was also issued on 31.08.1985 and 21.12.1985 and notice under Section 10(5) of Act, 1976 was given on 10.02.1987, has been taken on 19.10.1987 vide possession memo (Annexure-2 to the counter affidavit), hence contention of petitioner that after promulgation of Act, 1999 now the land is vacant and cannot be taken by State is thoroughly misconceived and rejected.
21. No other argument has been advanced. In view of above discussion, the writ petition lacks merit. Dismissed with cost, which we quantify to Rs. 10,000/-.
22. Interim order, if any, stands vacated.
Order Date :- 05.05.2016 AK