Madhya Pradesh High Court
National Hydro Development ... vs Chhotu on 21 November, 2016
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HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
S.B.: HON'BLE MR. S. C. SHARMA, J
WRIT PETITION No. 3094 / 2016
LAND ACQUISITION AND REHABILITATION OFFICER,
NATIONAL HYDRO DEVELOPMENT CORPORATION,
KHANDWA AND OTHERS
Vs.
MOTI S/O NAVALSINGH
WRIT PETITION No. 3097 / 2016
LAND ACQUISITION AND REHABILITATION OFFICER,
NATIONAL HYDRO DEVELOPMENT CORPORATION,
KHANDWA AND OTHERS
Vs.
CHHOTU
WRIT PETITION No. 3098 / 2016
LAND ACQUISITION AND REHABILITATION OFFICER,
NATIONAL HYDRO DEVELOPMENT CORPORATION,
KHANDWA AND OTHERS
Vs.
RAMA
WRIT PETITION No. 3101 / 2016
LAND ACQUISITION AND REHABILITATION OFFICER,
NATIONAL HYDRO DEVELOPMENT CORPORATION,
KHANDWA AND OTHERS
Vs.
BHAGAT SINGH
WRIT PETITION No. 3104 / 2016
LAND ACQUISITION AND REHABILITATION OFFICER,
NATIONAL HYDRO DEVELOPMENT CORPORATION,
KHANDWA AND OTHERS
Vs.
BHAGWAN SINGH
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WRIT PETITION No. 3105 / 2016
LAND ACQUISITION AND REHABILITATION OFFICER,
NATIONAL HYDRO DEVELOPMENT CORPORATION,
KHANDWA AND OTHERS
Vs.
UDAI SINGH
WRIT PETITION No. 3108 / 2016
LAND ACQUISITION AND REHABILITATION OFFICER,
NATIONAL HYDRO DEVELOPMENT CORPORATION,
KHANDWA AND OTHERS
Vs.
MANSHARAM
WRIT PETITION No. 3109 / 2016
LAND ACQUISITION AND REHABILITATION OFFICER,
NATIONAL HYDRO DEVELOPMENT CORPORATION,
KHANDWA AND OTHERS
Vs.
DEVI SINGH
WRIT PETITION No. 3110 / 2016
LAND ACQUISITION AND REHABILITATION OFFICER,
NATIONAL HYDRO DEVELOPMENT CORPORATION,
KHANDWA AND OTHERS
Vs.
LOKENDRA
WRIT PETITION No. 3111 / 2016
LAND ACQUISITION AND REHABILITATION OFFICER,
NATIONAL HYDRO DEVELOPMENT CORPORATION,
KHANDWA AND OTHERS
Vs.
BANA
WRIT PETITION No. 3112 / 2016
LAND ACQUISITION AND REHABILITATION OFFICER,
NATIONAL HYDRO DEVELOPMENT CORPORATION,
KHANDWA AND OTHERS
Vs.
GIRDHARI
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AND
WRIT PETITION No. 3113 / 2016
LAND ACQUISITION AND REHABILITATION OFFICER,
NATIONAL HYDRO DEVELOPMENT CORPORATION,
KHANDWA AND OTHERS
Vs.
PURSHOTTAM
*****
ORDER
(21/11/2016) 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. 3094 / 2016 are narrated hereunder.
The petitioner before this Court has filed this present writ petition being aggrieved by the order dt. 21/1/2016 passed in MJC No. 20/11 in Reference Case No. 11/2008 by the 1st Additional District Judge, Dewas.
Facts of the case reveal that the National Hydro Development Corporation in order to construct a Dam at River Narmada, after due consultation with Ministry of Environment and Forest and Government of India, has finalised a project and as land was going to be under
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submergence a notification was issued for acquiring land of the respondent.
The undisputed facts of the case reveal that after issuing notification for acquiring the land under the Land Acquisition Act, physical possession was never taken by the petitioners. The matter relating to land acquisition proceedings has finally reached the apex Court and the apex Court in the case of State of Madhya Pradesh Vs. Narmada Bachao Aandolan and others reported in (2011) 7 SCC 639 has passed a detailed judgment. Paragraphs 126, 142 and 143 reads as under :
126. These appeals have arisen out of the impugned order dated 23.9.2009, passed by the High Court of Madhya Pradesh at Jabalpur, in Interlocutory Application Nos. 4679 and 4804 of 2009 in Writ Petition No. 4457 of 2007, by which the High Court has allowed the said applications and directed the appellants to rehabilitate the oustees so far as the land measuring 284.03 hectares in the 5 villages, namely, i.e. Dharadi, Nayapura, Guwadi, Kothmir and Narsinghpura is concerned, and not to withdraw the acquisition proceedings in respect of the said area.
118. In Balwant Narayan Bhagde v. M.D. Bhagwat & Ors., AIR 1975 SC 1767, this Court while dealing with the issue, referred to various provisions of the Code of Civil Procedure, 1908 particularly Order XI Rules 35, 36, 96 and 97 and came to the conclusion :-
"19....... If the property is land over which does not stand any building or structure, then delivery of
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possession over the judgment-debtor's property becomes complete and effective against him the moment the delivery is effected by going upon the land, or in case of resistance, by removing the person resisting unauthorisedly. A different mode of delivery is prescribed in the Code in the rules aforesaid in regard to a building, with which we are not concerned in this case."
119. In State of T.N. & Anr. v. Mahalakshmi Ammal & Ors., (1996) 7 SCC 269, this Court held as under:
"Possession of the acquired land would be taken only by way of a memorandum, Panchnama, which is a legally accepted norm".
120. Similarly in Balmokand Khatri Educational & Industrial Trust, Amritsar v. State of Punjab & Ors., (1996) 4 SCC 212, this Court held as under:-
"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."
(Emphasis added)
143. In P.K.Kalburqui v. State of Karnataka, (2005) 12 SCC 489, this Court held that if the land is vacant and unoccupied, taking symbolic possession by the State Government, would amount to taking possession. In the said case, in spite of the fact that symbolic possession of the vacant land had been taken, the Hon'ble Minister directed the issuance of a Notification under Section 48 of the Act 1894 on the basis of his understanding of the law that symbolic possession did not amount to actual possession and that the power to withdraw from acquisition could be exercised at any time before actual possession was taken. This Court has held as under:-
"There can be no hard-and-fast rule laying down what act would be sufficient to constitute taking of possession of land. In the instant case the lands of which possession was sought to be taken were unoccupied, in the sense that there was no crop or structure standing thereon. In such a case only symbolic possession could be taken... such possession would amount to vesting the land in the Government."
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A report was submitted by Hon'ble Mr. Justice M.K. Mudgal (Retd.) as he was at the relevant point of time District & Sessions Judge, Indore and the excerpts of report submitted by Justice Mudal finds place in paragraph 149 of the judgment delivered by the apex Court. It reveals that the original land holders were in actual possession of the land, they were bhumiswamis and they were cultivating the land even after the acquisition proceedings. The land acquisition proceedings in the light of the judgment delivered by the Hon. Supreme Court of India, were abandoned by the State Government and finally notification was issued by the State Government on 21/11/2011. The notification was on record as Annexure P/2.
Facts of the case further reveal that an award was passed, however, the amount of compensation was deposited with the learned District Judge, Dewas. The petitioners, as the land acquisition proceedings came to an end, the possession of the land was not taken at any point of time from the respondents, preferred an application u/S. 144 of
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the Code of Civil Procedure, 1908 with a prayer to refund the amount of compensation which was lying with the Court or to direct the respondent to refund the compensation, however, the same has been rejected by impugned order dt. 21/1/2016.
The contention of the learned counsel for the petitioners is that the petitioners are entitled for refund as the land was with the respondent, he was gainfully cultivating the land and, therefore, the Court below has erred in law and facts in rejecting the application.
On the other hand, learned counsel for the respondent, in the present case as well as in other connected matters has vehemently argued before this Court that the learned District Judge was justified in rejecting the application. He has further stated that the Hon'ble Supreme Court in the case of State Government Houseless Harijan Employees Association Vs. State of Karnataka reported in (AIR 2001 SC 437) in paragraph 32 has dealt with a similar controversy and the land owner has to be compensated for
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the damage suffered in consequences of the acquisition proceedings. Reliance has also been placed in the judgment delivered in the case of The State of Gujarat Vs. Shah Dineshchandra Mohanlal reported in (AIR 1971 GUJARAT 284) and heavy reliance has been placed upon paragraph 21 of the said judgment.
This Court has carefully gone through the aforesaid judgments. In both the cases, the land owners were claiming compensation on account of losses suffered by them, whereas, in the present case, the land owners have not suffered any loss at all, they were cultivating the land in question, report of Hon. Justice Mudgal (Retd.) which is reflected in paragraph 149 of the judgment delivered by the apex Court, makes it very clear that they were bhumiswamis, they were in possession of the land, they were cultivating the land and they were using the land and it is nobody's case that some construction has been raised by the petitioner even over an inch of the land. Even an inch of the land was not taken from the possession of the land
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owners and, therefore, the learned District Judge has erred in law and facts in rejecting the application.
Resultantly, the present Writ Petition is allowed. The impugned order dated 21/1/2016 is hereby quashed. Application preferred u/S. 144 of the Code of Civil Procedure, 1908 stands allowed. The amount of compensation which is lying with the court be refunded back to the petitioners and in case part of compensation has been paid to the respondent or to other respondents in other connected cases, the same be recovered as arrears of land revenue and be paid to the petitioners.
At this stage, learned counsel for the respondent has vehemently argued before this Court that the provision of Sec. 48 have not been complied with.
In the present case, the State Government on its own has not taken a decision to withdraw from the acquisition proceedings. It was due to the judgment of the Hon'ble Supreme Court based upon which the State Government has passed an order denotifying the land in question and,
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therefore, the State Government was justified in submitting an application u/S. 144 of the Code of Civil Procedure, 1908 for refund of the amount.
Resultantly, the Writ Petition is allowed and all other connected Writ Petitions are also allowed. The impugned orders are hereby quashed.
(S. C. SHARMA) JUDGE KR