Allahabad High Court
Keshram Singh & Another vs State Of U.P. & 3 Others on 31 March, 2014
Bench: Ashok Bhushan, Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 10/2/2014. Delivered on 31/3/2014 Case :- WRIT - C No. - 827 of 2014 Petitioner :- Keshram Singh & Another Respondent :- State Of U.P. & 3 Others Counsel for Petitioner :- Pankaj Dubey Counsel for Respondent :- C.S.C.,Shivam Yadav Hon'ble Ashok Bhushan,J.
Hon'ble Mahesh Chandra Tripathi,J.
(Delivered by Hon'ble Mr. Justice Ashok Bhushan,J) This writ petition has been filed by the petitioners for claiming the benefit of Section 24 sub-section (2) of The Right to Fair Compensation and Transparency in the Land Acquisition, Rehabilitation and Resettlement Act, 2013, (hereinafter called the "Act, 2013") on the pleading that the acquisition initiated vide notification dated 21/3/1983 issued under Section 4 of the Land Acquisition Act, 1894 (hereinafter called the "Act, 1894") and the notification issued under Section 6 of the Act, 1894 dated 22/3/1983 has lapsed since the possession has not been taken by the State.
Counter and Rejoinder affidavits having been exchanged between the parties, with the consent of the learned counsel for the parties, the writ petition is being finally decided.
Brief facts giving rise to the writ petition are: The petitioners are Bhumidhar of Plot No.87M measuring area 1 Bigha, 4 Biswa, 0 Bishwanshi situate in Village Nagla Charan Das, Pargana Dadari, Tehsil Dadri, District Ghaziabad.
A notification under Section 4 of the Act, 1894 was issued on 21/3/1983 proposing to acquire agricultural land measuring 421 Bigha situate in different villages of Tehsil Dadri for the Planned Industrial Development through the New Okhla Industrial Development Authority, Ghaziabad. A declaration under Section 6 of the Act, 1894 was issued on 22/3/1983 which was published in the Gazette on 23/3/1983 for acquisition of the aforesaid land. Section 17 (1) of the Act, 1894 was invoked and the Collector was directed to take possession on the expiration of fifteen days from the publication of the notice mentioned in Section 9, sub-section (1). Notice under Section 9 was issued fixing 15/6/1983 for hearing. Objections were filed to Section 9 notice including the objection filed by the petitioners' father Lakhpati regarding the Plot No.87 relating to amount of compensation. The possession of the land was taken by the State on 23/8/1983. The award was declared on 30/11/1984. Compensation was received by the petitioners in the year 1984. The name of the authority was also recorded in the revenue records. With effect from 01/1/2014, Act, 2013 has been enforced. The petitioners have filed this writ petition on 06/1/2014 praying for following reliefs:
"i. To issue writ, order or direction in the nature of MANDAMUS commanding the Respondents to exempt the land comprising of Khasara No.87M area 1 Bigha-4 Bishva-0 Bishwanshi of Revenue Village Nagla Charan Das, Pargana Dadari, Tehsil Dadri, District Ghaziabad (Now Gautam Budh Nagar) in favor of the petitioners which was acquired by the notification no. 2823-Bha.U/18-11-164Bha.-81 dated 21.03.1983 under section 4 of Land Acquisition Act, 1894 and notification no. 2823 (2)-Bha.U/18-11-164 Bha.-81 dated 22.03.1983 under section 6 of Land Acquisition Act, 1894 which has been deemed to be lapsed in view of the Section 24(2) of The Right to Fair Compensation and Transparency in the Land Acquisition, Rehabilitation and Resettlement Act, 2013.
ii. To issue any other order of direction which the Hon'ble Court may deem fit and proper in the circumstances of the case.
iii. To award the cost of the petition to this petitioners."
Counter affidavit has been filed by the Authority pleading that after the declaration under Section 6 of the Act, 1894 was issued on 23/3/1983, the possession of the land was taken on 23/8/1983. Possession memo dated 23/8/1983 has been brought on the record which has been filed as Annexure CA-1. Award was declared on 30/11/1984 and compensation was paid to the petitioners. Name of the authority has been recorded in the Khatauni. Plot No.87 along with other land comes under the NEPZ (Noida Export Processing Zone) which was established in the year 1985 for providing development to the heavy industries. The super imposed sector maps showing the situation of plots including plot no. 87 and the boundary of NEPZ has also been brought on the record in the counter affidavit. It is pleaded that the major portion of Plot No. 87 lies in the NEPZ. It is pleaded that the petitioners are not entitled for the benefit under Section 24 (2) of the Act, 2013 since the possession of the land has already been taken by the State. In the rejoinder affidavit filed by the petitioners, petitioners have reiterated that they are still in physical possession over Plot No. 87M.
We have heard Shri Pankaj Dubey, learned counsel for the petitioners; Shri Ravi Kant, learned Senior Counsel assisted by Shri Shivam Yadav for the respondent no.4 and Shri Suresh Singh, learned Additional Chief Standing Counsel for the respondent nos. 1 to 3.
Learned counsel for the petitioners in support of the writ petition submitted that the petitioners being still in physical possession over Plot No.87M, the acquisition has lapsed by virtue of Section 24 (2) of the Act, 2013. He submits that the award in the present case having been delivered more than five years ago from the date of enforcement of the Act, 2013, Section 24 (2) of the Act, 2013 is applicable. It is submitted that the name of the authority has been mutated only in the Khatauni in the year 2007. He submits that although the petitioners have received compensation, but since the possession has not been taken by the State, the benefit of Section 24(2) of the Act, 2013 is to be extended to the petitioners.
Shri Ravi Kant, learned Senior Counsel appearing for the respondent no.4 submits that the acquisition having become final, and possession of the land having been taken long ago on 23/8/1983, petitioners cannot claim any benefit under Section 24 (2) of the Act, 2013. He submits that the award was delivered on 30/11/1984, and the petitioners having neither raised any objection regarding the acquisition proceedings nor regarding their possession, the writ petition is to be dismissed. He further submits that the benefit of Section 24(2) of the Act, 2013 can be claimed by a person only when the State/Authority does not choose to take possession. Section 24(2) of the Act, 2013 does not envisage raising disputed questions of fact and Section 24 (2) of the Act, 2013 shall apply only where no efforts have been taken by the State/Authority to take possession of land and the land is allowed to remain in possession of the land holder. He further submits that the possession envisaged under Section 24 (2) of the Act, 2013 has to be a lawful possession i.e. where the land holder has a right to maintain his possession. He submits that when the right to remain in possession has been extinguished, no benefit under Section 24 (2) of the Act, 2013 can be given to a land holder.
Shri Suresh Singh, learned Additional Chief Standing Counsel appearing for the State adopting the argument of Shri Ravi Kant, learned Senior Counsel submits that the possession has already been taken on 23/8/1983 in view of the fact that Section 17 (1) of the Act, 1894 was invoked.
Shri Pankaj Dubey, learned counsel for the petitioners in his rejoinder affidavit submits that the possession claimed by the respondents is only a paper possession which cannot help the respondents.
We have considered the submissions of the learned counsel for the parties and have perused the record.
From the pleadings of the parties and the submissions made, following are the issues which arise for consideration in the present case.
(1)Under Section 24 (2) of the Act, 2013, when the acquisition proceedings shall be deemed to have lapsed.
(2)Whether from the pleadings of the petitioners and materials brought on the record, petitioners have successfully proved that they still continue in physical possession of the land on the date of enforcement of Act, 2013.
Land Acquisition Act, 1894 was enacted relating to acquisition of land for public purposes and also for companies, the Act held the field for more than a century. The provisions of the Act, 1894 were found to be inadequate with regard to several issues. The issue of rehabilitation and settlement of displaced persons was not adequately dealt with in the Act. The Parliament enacted the Act, 2013 which represents a change in the legislative approach to the land acquisition. The statement of objects and reasons of the Act, 2013 details the purpose and goal for which the Act, 2013 has been enacted. By the Act, 2013, the earlier Act, 1894 has been repealed. Section 114 of the Act, 2013 provides for repeal and savings. Section 24 of the Act, 2013 which needs to be interpreted in the present case provides as follows:
"24 - Land acquisition process under Act No 1 of 1894 shall be deemed to have lapsed in certain cases.-(1) Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894),--
(a) where no award under section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; or
(b) where an award under said section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed.
(2) Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894), where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act:
Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act."
Section 24 (1) of the Act, 2013 provides that when the land acquisition proceedings have been initiated under the Act, 1894 and where no award under Section 11 of the said Act has been made, then all provisions of the Act, 2013 relating to the determination of compensation shall apply. It further provides that where an award under Section 11 of the Act has been made, then such proceedings shall continue under the provisions of the Act, 1894 as the Act, 2013 has not been repealed. Sub-section (2) of Section 24 of the Act, 2013 begins with non-obstante clause. For applicability of sub-section (2) of Section 24 of the Act, 2013 following are the conditions provided:
(1) Where an award under Section 11 of the Act, 1894 has been made five years or more prior to the commencement of the Act, 2013 and ;
(a) The physical possession of the land has not been taken or,
(b) the compensation has not been paid.
On fulfillment of the above conditions, it shall be deemed that land acquisition proceedings have lapsed. Sub-section (2) of Section 24 of the Act, 2013 creates a legal fiction which comes into existence on fulfillment of certain factual conditions.
As noted above, in the present case, we are concerned with regard to the applicability of the condition (a). The legal fiction which is envisaged in Section 24 (2) of the Act, 2013 has been created by the Legislature with an object. The Court has to ascertain the purpose and object for which the legal fiction has been created to know the true import of the provision. The Apex Court elaborating the concept of legal fiction has laid down following in paragraphs 18,19,20,21,22 and 23 in State of Uttar Pradesh Vs. Hari Ram, (2013) 4 SCC 280.
"18.Legislature is competent to create a legal fiction, for the purpose of assuming existence of a fact which does not really exist. Sub-section (3) of Section 10 contained two deeming provisions such as "deemed to have been acquired" and "deemed to have been vested absolutely". Let us first examine the legal consequences of a "deeming provision". In interpreting the provision creating a legal fiction, the Court is to ascertain for what purpose the fiction is created and after ascertaining this, the Court is to assume all those facts and consequences which are incidental or inevitable corollaries to the giving effect to the fiction. This Court in Delhi Cloth and General Mills Company Limited v. State of Rajasthan (1996) 2 SCC 449 held that what can be deemed to exist under a legal fiction are facts and not legal consequences which do not flow from the law as it stands.
19. James, L.J. in Levy, In re, ex p Walton, (1881) 17 Chance. D. 746 speaks on deeming fiction as: (Ch D p.756) "...When a statute enacts that something shall be deemed to have been done, which in fact and in truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to".
20. In Szoma v. Secretary of State for Work and Pensions (2006) 1 AC 564, the Court held: (AC p. 574, para 25) "25. ...it would..... be quite wrong to carry this fiction beyond its originally intended purpose so as to deem a person in fact lawfully here not to be here at all. The intention of a deeming provision, in laying down a hypothesis is that the hypothesis shall be carried so far as necessary to achieve the legislative purpose but no further'...."
(See also DEG Deutsche Investitions und Entwickungsgesellschaft mbH v Koshy.) (2001) 3 All E.R. 878.
21. Let us test the meaning of the expressions "deemed to have been acquired" and "deemed to have been vested absolutely" in the above legal settings. The expressions "acquired" and "vested" are not defined under the Act. Each word, phrase or sentence that we get in a statutory provision, if not defined in the Act, then is to be construed in the light of the general purpose of the Act. As held by this Court in Organo Chemical Industries v. Union of India (1979) 4 SCC 573 that a bare mechanical interpretation of the words and application of a legislative intent devoid of concept of purpose will reduce most of the remedial and beneficial legislation to futility. Reference may also be made to the Judgment of this Court in Directorate of Enforcement v. Deepak Mahajan (1994) 3 SCC 440. Words and phrases, therefore, occurring in the statute are to be taken not in an isolated or detached manner, they are associated on the context but are read together and construed in the light of the purpose and object of the Act.
22. This Court in S. Gopal Reddy v. State of A.P. AIR 1955 SC 376 held: (SCC p. 607, para 12) "12.It is well known rule of interpretation of statutes that the text and the context of the entire Act must be looked into while interpreting any of the expressions used in a statute. The Courts must look to the object, which the statute seeks to achieve while interpreting any of the provisions of the Act. A purposive approach for interpreting the Act is necessary."
23. In Jugal Kishore Saraf v.Raw Cotton Co. Ltd. AIR 1955 SC 376, S.R. Das, J stated:(AIR p.381,para 6) "6.....The cardinal rule of construction of statutes is to read the statute literally, that is by giving to the words used by legislature their ordinary, natural and grammatical meaning. If, however, such a reading leads to absurdity and the words are susceptible of another meaning the Court may adopt the same. But if no such alternative construction is possible, the Court must adopt the ordinary rule of literal interpretation."
In the above case, the Apex Court had occasion to consider the provisions of the Urban Land (Ceiling and Regulation) Repeal Act, 1999. In Section 3 (2) (a) of the Act, 1999 it is provided that any land is deemed to have vested in the State Government, but possession of which has not been taken over by the State Government such land shall not be restored, unless the amount paid, if any, has been refunded to the State Government. In the aforesaid case, the Court held that the repeal of the principle Act shall not affect the vesting of any land, possession of which has been taken over by the State Government.
In the present case, what is the object and purpose of legal fiction provided for by the legislature under Section 24 (2) of the Act, 2013 is to be considered. Sub-section (2) of Section 24 of the Act, 2013 is applicable only where an award under Section 11 has been made five years or more prior to the commencement of this Act. The Act, 2013 commences from 01/1/2014. Thus, sub-section (2) of Section 24 of the Act, 2013 shall apply only when the award was made on or before 01/1/2009. The deeming fiction was created with the object that in those acquisitions where even after the award which has been delivered five years ago, neither the possession has been taken nor the compensation has been paid the acquisition be deemed to have lapsed. The legal fiction created under sub-section (2) of Section 24 of the Act, 2013 is a beneficial legislation which has been intended to extend the benefit to the land owners who have not been paid the compensation even after five years of passing of the award or from whom the possession has not been taken even after five years of expiry of the award. The object is clear that if the possession is not taken even after five years of the expiry of the award there is every presumption that the land is not required for the purpose for which it was acquired. We are thus of the view that sub-section (2) of Section 24 of the Act, 2013 shall become applicable creating a deeming fiction when the award is made on 01/1/2009 or five years before and neither the physical possession of the land has been taken nor the compensation has not been paid to the land owners. At this juncture, we may also note that sub-section (2) of Section 24 of the Act, 2013 uses the words "possession of the land has not been taken." Use of the words "possession of the land has not been taken" which is present perfect continuous tense is for a purpose and object, which indicates that the position which became sometimes past is still continuing thus the non-taking of physical possession as well as the non-payment of compensation has to be continuing on the date when the Act, 2013 was enforced i.e. on 01/1/2014.
In taking the above view, we find support from the judgment of the Apex Court in Deepak Aggarwal Vs. Keshav Kaushik & Ors, (2013) 5 SCC 277. In Deepak Aggarwal's case (supra) the Apex Court had occasion to interpret the provisions of Article 233 (2) of the Constitution of India. Article 233 (2) of the Constitution of India provides for essential qualification for appointment of a person to the post of District Judges. Article 233 (2) of the Constitution of India is as follows:
"233. Appointment of District Judges.--
(1) ..............
(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a District Judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment."
Article 233 (2) of the Constitution of India also uses the word "has been for not less than seven years". The Apex Court interpreted the word "has been" in the above case.
In the present case, Section 24 (2) of the Act, 2013 also uses the phrase "physical possession of the land has not been taken". The Apex Court in Deepak Aggarwal's case (supra) held that the use of present perfect continuous tense indicates that a position which began at sometime in the past and is still continuing. Thus, under Section 24 (2) of the Act, 2013 possession of the land has not been taken that situation is to be continued till the enforcement of the Act, 2013. It is useful to refer to paragraph 102 of the judgment in Deepak Aggarwal's case (supra) which is to the following effect:
"102. As regards construction of the expression, "if he has been for not less than seven years an advocate" in Article 233(2) of the Constitution, we think Mr. Prashant Bhushan was right in his submission that this expression means seven years as an advocate immediately preceding the application and not seven years any time in the past. This is clear by use of "has been". The present perfect continuous tense is used for a position which began at some time in the past and is still continuing. Therefore, one of the essential requirements articulated by the above expression in Article 233(2) is that such person must with requisite period be continuing as an advocate on the date of application."
The acquisition thus shall be deemed to have lapsed only when the physical possession of the land has not been taken nor the compensation has been paid on the date i.e. 01/1/2014 when the Act, 2013 was enforced. On existence of the above-mentioned facts, the legal fiction shall come into play lapsing the acquisition on the date of enforcement of the Act, 2013. One more aspect which needs to be noted is that sub-section (2) of Section 24 of the Act, 2013 uses the words "physical possession". The word "physical possession" means personal and immediate possession. "Physical possession" has been defined in P. Ramanatha Aiyar's The law Lexicon 3rd Edition 2012 at Page 1355 which is quoted below:
"Physical possession" In Art.10, Sch. II of the Limitation Act (36 of 1963) "physical possession" means "personal and immediate possession." 3 Bom LR 707 (PC):24 All 17:5 CWN 888:28 IA 248. See also 1 All 311."
Physical possession thus has to be actual possession. The object is that when the State has not taken physical possession i.e. actual possession even after five years of passing of the award and that situation continues on the date of the enforcement upto the Act, 2013, the conclusion is irresistible that the State does not need the land and there is no purpose of the land acquisition, hence the legislature has created the legal fiction under which the land acquisition shall lapse. Thus, we conclude that in a case where the award has been delivered five years before the commencement of the Act, 2013 and physical possession has not been taken by the State, the acquisition shall lapse.
Now, we come to the second issue.
The only pleading in the writ petition regarding possession is in paragraph 9 of the writ petition which is to the following effect:
"9. That, it is relevant to mention here that the petitioners are in actual and physical possession of the land in dispute and no development has been taken place till date and the Award was declared on 30.11.1984 i.e. prior to the more then 5 years to the commencement of this Act."
In the counter affidavit filed by the respondents, the respondents have pleaded that the possession of the land was taken by the respondents on 23/8/1983. It has further been pleaded that the land of the petitioners bearing Khasra No. 87 along with other land was kept under NEPZ (NOIDA Export Processing Zone) which was created in the year 1985. It has been pleaded that the major portion of the Khasra No.87 has come under the aforesaid NEPZ. To support their pleading, the possession memo dated 23/8/1983 as well as the map have been filed along with the counter affidavit. Following pleadings were made in paragraphs 13 and 15 of the counter affidavit which are quoted below:
"13. That the award with regard to the aforesaid acquisition proceedings was also made on 30.11.1984 and the possession with regard to the aforesaid land was taken on 23.08.1983. The copy of the aforesaid possession memo dated 23.08.1983 where the khasra no. 87 as a whole was mentioned bearing area 1-4-0. The true copy of the aforesaid possession memo dated 23.08.1983 is being annexed herewith and is marked as ANNEXURE NO.CA-1 to this counter affidavit.
15. That apart from the acquisition proceedings were made for the establishment of heavy industries the land of the petitioners bearing khasra no. 87 along with other land was kept under NEPZ (NOIDA Export Processing Zone) which was created in the year 1985 for the facilitation to the heavy industries which were established over the aforesaid land. Moreover, the major portion of khasra no. 87 also comes under the aforesaid NEPZ. The copy of the super imposed sector maps specifically showing major portion of khasra no. 87 to be falling under the aforesaid NEPZ, which was established way back in the year 1985. The copy of maps is being jointly annexed herewith and is marked as ANNEXURE NO.CA-2 to this counter affidavit."
It has further been pleaded that the name of the Noida has been mutated at Plot No.87 area 1 Bigha and 4 Biswa. It is stated that Plot No. 87 bearing area 1 Bigha 4 Biswa was acquired. Replying to paragraphs 9, 10 and 11 of the writ petition, following pleading was made in paragraph 26 of the counter affidavit which is quoted below:
"26. That the contents of paragraphs 9,10 and 11 of the writ petition are not admitted and are vehemently denied. The claim of the petitioners for no development of the land has been made is absolutely false, vague and without any basis as the aforesaid khasra no. 87 comes under the NEPZ i.e. Noida Export Processing Zone, which was established way back in the year 1985 for providing development to the heavy industries. This was a Central Government Scheme under which the aforesaid Zone was developed and the answering respondent on affidavit wants to submit that the area over which the aforesaid NEPZ was made is fully developed and only on a portion of land the petitioners are illegally occupying/encroaching upon without permission of NOIDA. Therefore the present writ petition also lacks merit as there is no basis to the petitioners to come before this Hon'ble Court and say that their land which was acquired and for which the compensation was received by them is not being developed. Therefore they can be no preposition of law under which the acquisition proceedings shall stand lapse even as per the new Act no.30 of 2013, which has come into force."
The claim of the petitioners that possession of plot no.87 has not been taken by the State has been refuted by the respondents, in support of which, relevant materials have been brought on the record. The writ petition does not refer to any khasra showing recording of possession of the petitioners or showing of any crops. There is nothing on the record apart from mere pleading in paragraph 9 of the writ petition as noted above that the petitioners are in actual and physical possession of the land. When major portion of plot no.87 has been included in the boundary of NEPZ, the case of the respondents finds supports that possession of the land was taken on 23/8/1983. The petitioners have also not brought on the record any material to substantiate their case that petitioners are still continuing in possession.
Learned counsel for the petitioners submitted that the possession of the land has not been taken in accordance with law.
The Apex Court had occasion to consider the mode and manner of taking possession of the acquired land under the Act, 1894, in a recent judgment in Raghbir Singh Sehrawat Vs. State of Haryana & Ors, (2012) 1 SCC 792. The Apex Court in the said case noted earlier judgments on the subject and after noticing the relevant judgments following was laid down in paragraphs 25, 26 and 27:
"25. The legality of the mode and manner of taking possession of the acquired land has been considered in a number of cases. In Balwant Narayan Bhagde v. M. D. Bhagwat (1976) 1 SCC 700, Untwalia, J. referred to provisions of Order 21 Rules 35, 36, 95 and 96 of the Code of Civil Procedure and opined that delivery of symbolic possession should be construed as delivery of actual possession of the right, title and interest of the judgment-debtor. His Lordship further observed that if the property is land over which there is no building or structure, then delivery of possession over the judgment-debtor's property becomes complete and effective against him the moment the delivery is effected by going upon the land. The learned Judge went on to say: (SCC pp.710-11, para 25) "25.When a public notice is published at a convenient place or near the land to be taken stating that the Government intends to take possession of the land, then ordinarily and generally there should be no question of resisting or impeding the taking of possession. Delivery or giving of possession by the owner or the occupant of the land is not required. The Collector can enforce the surrender of the land to himself under Section 47 of the Act if impeded in taking possession. On publication of the notice under Section 9(1) claims to compensation for all interests in the land has to be made; be it the interest of the owner or of a person entitled to the occupation of the land. On the taking of possession of the land under Section 16 or 17(1) it vests absolutely in the Government free from all encumbrances. It is, therefore, clear that taking of possession within the meaning of Section 16 or 17(1) means taking of possession on the spot. It is neither a possession on paper nor a `symbolical' possession as generally understood in civil law. But the question is what is the mode of taking possession? The Act is silent on the point. Unless possession is taken by the written agreement of the 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 the authority has taken possession of the land. It may be in the form of a declaration by beat of drum or otherwise or by hanging a written declaration on the spot that the authority has taken possession of the land. The presence of the owner or the occupant of the land to effectuate the taking of possession is not necessary. No further notice beyond that under Section 9(1) of the Act is required. When possession has been taken, the owner or the occupant of the land is dispossessed. Once possession has been taken the land vests in the Government."
26.Bhagwati, J. (as he then was) and Gupta, J., who constituted the majority did not agree with Untwalia, J. and observed as under: (Balwant Narayan Bhagde v. M. D. Bhagwat (1976) 1 SCC 700, SCC pp.711-12,para 28) "28.... 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 Tahsildar 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 Tahsildar, 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."
27. In Banda Development Authority v. Moti Lal Agarwal and others (2011) 5 SCC 394, the Court referred to the judgments in Balwant Narayan Bhagde v. M. D. Bhagwat (supra), Balmokand Khatri Educational and Industrial Trust v. State of Punjab (1996) 4 SCC 212, P. K. Kalburqi v. State of Karnataka (2005) 12 SCC 489, NTPC Ltd. v. Mahesh Dutta (supra), Sita Ram Bhandar Society v. Govt. (NCT of Delhi) (2009) 10 SCC 501 and culled out the following propositions: (Banda Development Authority (2011) 5 SCC 394, SCC p.411, para 37) " (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."
From the law as laid down by the Apex Court in the aforesaid case as noted in paragraph 27, it is clear that 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. However, 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. No khasra has been filed by the petitioners to indicate that the crop was standing or is still standing on the date of the enforcement of the Act, 2013. There is one more reason due to which the claim of the respondents cannot be disbelieved. Petitioners himself have filed the copy of the award dated 30/11/1984 as Annexure-3 to the writ petition. In the award the date 23/8/1983 is mentioned as the date of taking possession of the land. Further more, an objection has been filed with regard to plot no.87 before the Special Land Acquisition Officer said objection has been dealt as objection no.4. Petitioners' father had filed objection with regard to Plot No. 87 to the effect that the compensation of the land should be awarded as Rs.60,000/- per bigha, the said objection of the petitioner's father was rejected. The objection was only with regard to the amount of compensation which was rejected. The case of the respondents that the petitioners had received compensation has not been disputed by the learned counsel for the petitioners. A person who alleges that acquisition has lapsed on account of the fact that physical possession of the land has not been taken has to prove the said fact and the burden is on the person who claims that the acquisition has lapsed. The compensation has been received by the petitioners and at no point of time any claim regarding the release of the land on the ground that the petitioners are in possession was raised.
In the present case, we are of the view that the petitioners have failed to prove by any cogent material that the respondents have not taken physical possession of the land and the petitioners are still in possession of the land.
Learned counsel for the petitioners has also relied on the Full Bench judgment of this Court in Gajraj & Ors Vs. State of U.P. & Ors, (2011) 4 U.P.L.B.E.C. 3101, in support of his submission that the Full Bench in the writ petition has held that possession in the said case was not taken in accordance with law, since the possession memo was not signed by the independent witnesses. There are two reasons due to which the said case does not help the petitioners:
Firstly, there is no material on record to indicate that the crop was standing on the land. No khasra has been brought on the record to indicate that the crop was standing on the land. In Raghbir Singh Sehrawat's case (supra) the issue was regarding taking of possession. The Apex Court had noted in the said case and has held that the averment of the physical possession of the acquired land by the appellant was supported by revenue entries. Following was laid down in paragraph 21 which is quoted below:
"21.Since the appellant has been non suited by the High Court only on the ground that possession of the acquired land had been taken by the officers concerned and the same will be deemed to have vested in the State Government free from all encumbrances, we think that it will be appropriate to first consider this facet of his challenge to the impugned orders. In the writ petition filed by him, the appellant categorically averred that physical possession of the acquired land was with him and he has been cultivating the same. This assertion finds support from the entries contained in Girdawari/Record of cultivation, Book No.1, village Jatheri, Tehsil and District Sonepat (years 2001 to 2010). A reading of these entries shows that during those years crops of wheat, paddy and chari were grown by the appellant and at the relevant time, i.e. the date on which possession of the acquired land is said to have been taken and delivered to HSIIDC, paddy crop was standing on 5 Kanals 2 Marlas of land."
Secondly, the petitioners have to prove the factum that the physical possession of the land has not been taken by the State, which position is continuing up to the date of the enforcement of the Act, 2013 i.e. on 01/1/2014.
We are thus satisfied that the petitioners have failed to prove that they are in actual physical possession of the land and the physical possession had not been taken by the State, which fact is continuing up to the date of the enforcement of the Act,2013 i.e. on 01/1/2014.
Shri Ravi Kant, learned Senior Advocate appearing on behalf of the respondent no.4 has made a submission that the possession of the petitioners has to be a lawful possession i.e. the petitioners should have a right to remain in possession. He has also placed reliance on certain judgments of the Apex Court in support of the above proposition.
In view of our findings that the petitioners have failed to prove their physical possession over the land by any cogent material, we do not find it necessary to enter into the issues as to whether the possession as contemplated under Section 24 (2) of the Act, 2013 has to be a lawful possession or not. We leave the said submission open.
In view of the foregoing discussions, the petitioners are not entitled for the reliefs as claimed in the writ petition.
The writ petition is dismissed.
Order Date :- 31/3/2014 SB