Madhya Pradesh High Court
Kailash vs The State Of Madhya Pradesh on 2 November, 2020
Author: S.C.Sharma
Bench: S.C.Sharma
Writ Petition Nos.3250/2017, 3152/2017,
3169/2017,3241/2017, 3340/2017,
3366/2017 and 3368/2017
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HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
Single Bench : HON'BLE MR. JUSTICE S. C. SHARMA
Writ Petition No.3250/2017
Anitabai W/o Mohanlal and Others
Versus
State of Madhya Pradesh and Others
Writ Petition No.3152/2017
Vishnu S/o Shriram and Others
Versus
State of Madhya Pradesh and Others
Writ Petition No.3169/2017
Mohanlal S/o Rameshwar and Others
Versus
State of Madhya Pradesh and Others
Writ Petition No.3241/2017
Kailash S/o Ranchod and Others
Versus
State of Madhya Pradesh and Others
Writ Petition No.3340/2017
Late Badrilal (Deceased) through LR Reshambai and Others
Versus
State of Madhya Pradesh and Others
Writ Petition No.3366/2017
Mohan S/o Savant and Others
Versus
State of Madhya Pradesh and Others
Writ Petition No.3368/2017
Shri Nandkishore Verma
Versus
State of Madhya Pradesh and Others
Writ Petition Nos.3250/2017, 3152/2017,
3169/2017,3241/2017, 3340/2017,
3366/2017 and 3368/2017
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Mr. Ajay Bagadiya, learned counsel for the
petitioner.
Mr. Ayushyaman Choudhary, learned Panel
Lawyer for the respondent / State.
Mr. H. Y. Mehta and Mr. Rishi Tiwari, learned
counsel for respondents No.5 - MPAKVN Ltd.
Ms. Mini Ravindran, learned counsel for the
intervener.
O R D E R
(Delivered on this 02nd November, 2020) Regard being had to the similitude in the controversy involved in the present cases, the writ petitions were analogously heard and by a common order, they are being disposed of by this Court.
Facts of Writ Petition No.3250/2017 are narrated hereunder.
02- The petitioners before this Court have filed this present petition under Article 226 of the Constitution of India challenging the land acquisition proceedings. The award, which is under challenge dated 07/03/2009 is in respect of Village Madhavpur, Tehsil and District Dhar. The land acquisition proceedings took place as "National Automotive Testing and R & D Infrastructure Project" was to be established.
03- The petitioners in the writ petition has also amended the writ petition at later stage by filing amendment application and the same has been allowed by this Court. The petitioners' main contention is that keeping in view Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Writ Petition Nos.3250/2017, 3152/2017, 3169/2017,3241/2017, 3340/2017, 3366/2017 and 3368/2017 -3- Act, 2013, as he petitioners have not received compensation, the land acquisition proceedings have become null and void and the award dated 07/03/2019 deserves to be quashed by this Court.
04- The petitioners have stated that a proposal was forwarded by the Competent Authority on 31/01/2007 for acquiring the land in question, proceedings were initiated by the Land Acquisition Officer, Collector, Indore and a Gazette notification was published keeping in view Section 4(1) read with Section 17(1) of the Land Acquisition Act, 1894.
05- A declaration as provided under Section 6 of the Land Acquisition Act, 1894 was published in the official Gazette on 09/03/2007, notices were issued under Section 9 to the land holders and thereafter, an award was passed in the matter. The petitioners have stated that they were not heard by the Land Acquisition Officer after delivery of the award keeping in view Section 12(2) of the Land Acquisition Act, 1894 and the possession has not been taken from them.
06- The petitioners have further stated that in the year 2017 a notice was received by them and they have submitted an application to the Land Acquisition Officer keeping in view Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. The main ground of the petitioners is that after the award was delivered on 07/03/2009 compensation has not been distributed and therefore, the land Writ Petition Nos.3250/2017, 3152/2017, 3169/2017,3241/2017, 3340/2017, 3366/2017 and 3368/2017 -4- acquisition proceedings have come to an end. A prayer has been made to declare the proceedings which took place in respect of land acquisition as null and void keeping in view Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
07- The respondents have filed a reply and it has been stated that Government of India has sanctioned implementation of National Automotive Testing and R & D Infrastructure Project with a cost of Rs.1718.00 Crores and the project cost has now increased to Rs.3727.00 Crores. The respondents have further stated that the project is being developed over 4140 acres of land and out of which 3000 acres have been received by State of Madhya Pradesh. It has been further stated that land in respect of 10 villages have been acquired and the total land acquired from private individuals is approximately 1405.432 hectares. It has also been stated that after an award was passed the possession has also been delivered to National Automotive Testing and R & D Infrastructure Project and the project has also been completed.
08- Various interlocutory applications have been filed in the matter. Rejoinder has been filed, additional return has also been filed and even an application has been filed stating that matter is pending before the Hon'ble Supreme Court i.e. S. L. P. (C) Nos.9036-9038 of 2016. Amendment application has also been filed, the same is also allowed. Reply to amendment application has also been filed in the Writ Petition Nos.3250/2017, 3152/2017, 3169/2017,3241/2017, 3340/2017, 3366/2017 and 3368/2017 -5- matter. However, the undisputed facts reveal that project for which the land was acquired is complete, barring the construction of boundary wall at some places and the petitioners are taking shelter of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and a prayer is made to declare the award null and void.
09- Petitioners in the present petition and in the connected writ petitions owns few acres of land out of total land acquired. The Hon'ble Supreme Court in the case of Indore Development Authority Vs. Manoharlal and Others Etc. [S. L. P. (C) Nos.9036-9038 of 2016, decided on March 06, 2020] in paragraphs No.253 to 263 has held as under:-
"253. Under section 16 of the Act of 1894, vesting of title in the Government, in the land took place immediately upon taking possession. Under Sections 16 and 17 of the Act of 1894, the acquired land became the property of the State without any condition or limitation either as to title or possession. Absolute title thus vested in the State.
254. This Court in V. Chandrasekaran & Anr. v. Administrative Officer & Ors165 dealt with the concept of vesting under the Act of 1894. The facts of the said case indicated that the appellants and the officials of the State and Development Board connived with each other to enable the appellant to grab/encroach upon the public land, which was acquired and falsified the documents so as to construct flats thereon. Considering the gravamen of the fraud, the Chief Secretary of the State was directed to trace out such officials and to take suitable action against each of them. It was also held by this Court that alienation of land subsequent to notification under Section 4(1) is void and no title passes on the basis of such sale deed. This Court held that once land vested in the State free from all encumbrances, it cannot be divested. Once land has been acquired, it cannot be restored to tenure-holders/persons interested, even if it is not used for the purpose for which it is so acquired. Once possession of land has been taken, it vests in the State free from all encumbrances. Under sections 16 and 17, the acquired property becomes the property of the Government without any limitation or Writ Petition Nos.3250/2017, 3152/2017, 3169/2017,3241/2017, 3340/2017, 3366/2017 and 3368/2017 -6- condition either as to title or possession. Reliance has been placed on Fruit and Vegetable Merchants Union (supra):
"19. That the word "vest" is a word of variable import is shown by provisions of Indian statutes also. For example, Section 56 of the Provincial Insolvency Act (5 of 1920) empowers the court at the time of the making of the order of adjudication or thereafter to appoint a receiver for the property of the insolvent and further provides that "such property shall thereupon vest in such receiver". The property vests in the receiver for the purpose of administering the estate of the insolvent for the payment of his debts after realising his assets. The property of the insolvent vests in the receiver not for all purposes but only for the purpose of the Insolvency Act and the receiver has no interest of his own in the property. On the other hand, Sections 16 and 17 of the Land Acquisition Act (Act 1 of LA), provide that the property so acquired, upon the happening of certain events, shall "vest absolutely in the Government free from all encumbrances". In the cases contemplated by Sections 16 and 17 the property acquired becomes the property of Government without any conditions or limitations either as to title or possession. The legislature has made it clear that the vesting of the property is not for any limited purpose or limited duration. It would thus appear that the word "vest" has not got a fixed connotation, meaning in all cases that the property is owned by the person or the authority in whom it vests. It may vest in title, or it may vest in possession, or it may vest in a limited sense, as indicated in the context in which it may have been used in a particular piece of legislation. The provisions of the Improvement Act, particularly Sections 45 to 49 and 54 and 54-A when they speak of a certain building or street or square or other land vesting in a municipality or other local body or in a trust, do not necessarily mean that ownership has passed to any of them." (emphasis supplied)
255. In National Textile Corporation Ltd. v. Nareshkumar Badrikumar Jagad & Ors166, the concept of vesting was considered. This court observed that vesting means an absolute and indefeasible right. Vesting, in general sense, means vesting in possession. Vesting may include vesting of interest too. This Court observed thus:
"38. "Vesting" means having obtained an absolute and indefeasible right. It refers to and is used for transfer or conveyance. "Vesting" in the general sense, means vesting in possession. However, "vesting" does not necessarily and always means possession but includes vesting of interest as well. "Vesting" may mean vesting in title, vesting in possession or vesting Writ Petition Nos.3250/2017, 3152/2017, 3169/2017,3241/2017, 3340/2017, 3366/2017 and 3368/2017 -7- in a limited sense, as indicated in the context in which it is used in a particular provision of the Act. The word "vest" has different shades, taking colour from the context in which it is used. It does not necessarily mean absolute vesting in every situation and is capable of bearing the meaning of a limited vesting, being limited, in title as well as duration. Thus, the word "vest" clothes varied colours from the context and situation in which the word came to be used in the statute. The expression "vest" is a word of ambiguous import since it has no fixed connotation and the same has to be understood in a different context under different sets of circumstances. [Vide Fruit & Vegetable Merchants Union v. Delhi Improvement Trust, AIR 1957 SC 344, Maharaj Singh v. State of U.P. AIR 1976 SC 2602, Municipal Corpn. of Hyderabad v. P.N. Murthy AIR 1987 SC 802, Vatticherukuru Village Panchayat v. Nori Venkatarama Deekshithulu 1991 Supp (2) SCC 228, M. Ismail Faruqui v. Union of India AIR 1995 SC 605, SCC p. 404, para 41, Govt. of A.P. v. Nizam, Hyderabad (1996) 3 SCC 282, K.V. Shivakumar v. Appropriate Authority (2000) 3 SCC 485, Municipal Corpn. of Greater Bombay v. Hindustan Petroleum Corpn. AIR 2001 SC 3630 and Sulochana Chandrakant Galande v. Pune Municipal Transport (2010) 8 SCC 467.]"
(emphasis supplied)
256. Thus, it is apparent that vesting is with possession and the statute has provided under Sections 16 and 17 of the Act of 1894 that once possession is taken, absolute vesting occurred. It is an indefeasible right and vesting is with possession thereafter. The vesting specified under section 16, takes place after various steps, such as, notification under section 4, declaration under section 6, notice under section 9, award under section 11 and then possession. The statutory provision of vesting of property absolutely free from all encumbrances has to be accorded full effect. Not only the possession vests in the State but all other encumbrances are also removed forthwith. The title of the landholder ceases and the state becomes the absolute owner and in possession of the property. Thereafter there is no control of the land-owner over the property. He cannot have any animus to take the property and to control it. Even if he has retained the possession or otherwise trespassed upon it after possession has been taken by the State, he is a trespasser and such possession of trespasser enures for his benefit and on behalf of the owner.
257. After the land has vested in the State, the total control is of the State. Only the State has a right to deal with the same. In Municipal Corporation of Greater Bombay & Ors. v. Hindustan Petroleum Corporation & Anr167, this Court discussed the concept of vesting in the context of Section 220 of the Bombay Municipal Corporation Act. It has referred to various decisions Writ Petition Nos.3250/2017, 3152/2017, 3169/2017,3241/2017, 3340/2017, 3366/2017 and 3368/2017 -8- including that of Richardson v. Robertson, (1862) 6 LT 75 thus:
"8. It is no doubt true that Section 220 provides that any drain which vests in the Corporation is a municipal drain and shall be under the control of the Corporation. In this context, the question arises as to what meaning is required to assign to the word "vest" occurring in Section 220 of the Act? In Richardson v. Robertson 6 LT at p. 78, it was observed by Lord Cranworth as under: (LT p. 78) "The word 'vest' is a word, at least, of ambiguous import. Prima facie 'vesting' in possession is the more natural meaning. The expressions 'investiture' -- 'clothing' -- and whatever else be the explanation as to the origin of the word, point prima facie rather to the enjoyment than to the obtaining of a right. But I am willing to accede to the argument that was pressed at the Bar, that by long usage 'vesting' originally means the having obtained an absolute and indefeasible right, as contradistinguished from the not having so obtained it. But it cannot be disputed that the word 'vesting' may mean, and often does mean, that which is its primary etymological signification, namely, vesting in possession."
15. We are, therefore, of the view that the word "vest" means vesting in title, vesting in possession or vesting in a limited sense, as indicated in the context in which it is used in a particular provision of the Act."
(emphasis supplied)
258. The word 'vest' has to be construed in the context in which it is used in a particular provision of the Act. Vesting is absolute and free from all encumbrances that includes possession. Once there is vesting of land, once possession has been taken, section 24(2) does not contemplate divesting of the property from the State as mentioned above.
259. Now, the court would examine the mode of taking possession under the Act of 1894 as laid down by this Court. In Balwant Narayan Bhagde (supra) it was observed that the act of Tehsildar in going on the spot and inspecting the land was sufficient to constitute taking of possession. Thereafter, it would not be open to the Government or the Commission to withdraw from the acquisition under Section 48(1) of the Act. It was held thus:
"28. We agree with the conclusion reached by our brother Untwalia, J., as also with the reasoning on which the conclusion is based. But we are writing a separate judgment as we feel that the discussion in the judgment of our learned Brother Untwalia, J., in regard to delivery of "symbolical" and "actual"
Writ Petition Nos.3250/2017, 3152/2017, 3169/2017,3241/2017, 3340/2017, 3366/2017 and 3368/2017 -9- possession under Rules 35, 36, 95 and 96 of Order 21of the Code of Civil Procedure, is not necessary for the disposal of the present appeals and we do not wish to subscribe to what has been said by our learned Brother Untwalia, J., in that connection, nor do we wish to express our assent with the discussion of the various authorities made by him in his judgment. 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, LA, 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."
260. In Tamil Nadu Housing Board v. A. Viswam (supra) it was held that drawing of Panchnama in the presence of witnesses would constitute a mode of taking possession. This court Writ Petition Nos.3250/2017, 3152/2017, 3169/2017,3241/2017, 3340/2017, 3366/2017 and 3368/2017
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observed:
"9. It is settled law by series of judgments of this Court that one of the accepted modes of taking possession of the acquired land is recording of a memorandum or Panchnama 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 cooperate in taking possession of the land." (emphasis supplied)
261. In Banda Development Authority (supra) this Court held that preparing a Panchnama is sufficient to take possession. This Court has laid down thus:
"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 State authority concerned 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 authority concerned 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."
Writ Petition Nos.3250/2017, 3152/2017, 3169/2017,3241/2017, 3340/2017, 3366/2017 and 3368/2017
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262. In State of Tamil Nadu and Anr. v. Mahalakshmi Ammal and Ors., (supra), this court dealt with the effect of vesting on possession and mode of taking it and opined thus:
"9. It is well-settled law that publication of the declaration under Section 6 gives conclusiveness to public purpose. Award was made on 26-9-1986 and for Survey No. 2/11 award was made on 31-8-1990. Possession having already been undertaken on 24-11- 1981, it stands vested in the State under Section 16 of the Act free from all encumbrances and thereby the Government acquired absolute title to the land. The initial award having been made within two years under Section 11 of the Act, the fact that subsequent award was made on 31-8-1990 does not render the initial award invalid. It is also to be seen that there is stay of dispossession. Once there is stay of dispossession, all further proceedings necessarily could not be proceeded with as laid down by this Court. Therefore, the limitation also does not stand as an impediment as provided in the proviso to Section 11-A of the Act. Equally, even if there is an irregularity in service of notice under Sections 9 and 10, it would be a curable irregularity and on account thereof, award made under Section 11 does not become invalid. Award is only an offer on behalf of the State. If compensation was accepted without protest, it binds such party but subject to Section 28-A. Possession of the acquired land would be taken only by way of a memorandum, Panchnama, 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. Considered from this perspective, we hold that the High Court was not justified in interfering with the award."
263. In Balmokand Khatri Educational and Industrial Trust, Amritsar v. State of Punjab & Ors168, this Court ruled that under compulsory acquisition it is difficult to take physical possession of land. The normal mode of taking possession is by way of drafting the Panchnama in the presence of Panchas. This Court observed thus:
"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 Writ Petition Nos.3250/2017, 3152/2017, 3169/2017,3241/2017, 3340/2017, 3366/2017 and 3368/2017
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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.
5. Under these circumstances, merely because the appellant retained possession of the acquired land, the acquisition cannot be said to be bad in law. It is then contended by Shri Parekh that the appellant-Institution is running an educational institution and intends to establish a public school and that since other land was available, the Government would have acquired some other land leaving the acquired land for the appellant. In the counter-affidavit filed in the High Court, it was stated that apart from the acquired land, the appellant also owned 482 canals 19 marlas of land. Thereby, it is seen that the appellant is not disabled to proceed with the continuation of the educational institution which it seeks to establish. It is then contended that an opportunity may be given to the appellant to make a representation to the State Government. We find that it is not necessary for us to give any such liberty since acquisition process has already been completed."
In light of the aforesaid judgment, it is crystal clear that land acquisition proceedings have not at all lapsed, even if the petitioners have not received the compensation. In the present case, compensation was deposited with the Land Acquisition Officer and the question of granting relief to the petitioners, especially in light of the fact that the entire project is complete, does not arise. The petitioners shall certainly be free to receive compensation in accordance with law, if not received so far. With the aforesaid, all the writ petitions stand dismissed.
Certified copy as per rules.
(S. C. SHARMA) JUDGE Tej Digitally signed by Tej Prakash Vyas Date: 2020.11.04 14:50:02 +05'30'