Full Judgment Text
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PETITIONER:
M/S. JETHMULL BHOJRAJ
Vs.
RESPONDENT:
STATE OF BIHAR & ORS.
DATE OF JUDGMENT25/01/1972
BENCH:
HEGDE, K.S.
BENCH:
HEGDE, K.S.
REDDY, P. JAGANMOHAN
PALEKAR, D.G.
CITATION:
1972 AIR 1363 1972 SCR (3) 193
1972 SCC (1) 714
ACT:
Land Acquisition Act (1 of 1874), ss. 9 and 17-Scope of.
HEADNOTE:
In 1954 the lands in dispute were notified under the Indian
Forests, Act, 1927. Later, in order to, acquire and include
them in the adjoining Government forest, Government notified
them under s. 4 of the Land Acquisition Act, 1894.
Government also took action under s. 17(4) of the Act,
dispensed with the proceedings under s. 5A, and issued the
notification under s. 6. Thereafter proceedings were taken
under ss. 9 and 1.1, but Government decided that it was not
worthwhile to acquire the entire area and withdrew some of
the lands from acquisition.
The appellant moved the High, Court unsuccessfully, under
Art. 226, for directions to award him compensation in
respect of those lands also.
In appeal to this Court, it was contended that : (1) Since
the Government had taken possession in 1954, Government
became full owners of the lands when notifications were
issued under s. 6 of the Land Acquisition Act; and (2) the
lands bad been actually taken possession of by the Collector
under s. 17(1) and Government became full owners when public
notice was given under s. 9(1).
Dismissing the appeal,
HELD : (1) There was no satisfactory evidence to show that
the Government had taken possession of the lands in 1954.
Therefore, the High Court was justified in not pronouncing
on the question in a petition under Art. 226.
(2) (a) Under s. 17(1) the Collector cannot take possession
unless Government directs him to do so. There is no
material on record to show that Government had given any
such direction, nor is there any material to show that the
Collector had taken possession under s. 17(1). [196 G-H]
Lt. Governor of Himachal Pradesh v. Avinash Sharma, [1971]
1 S.C.R. 413, explained and distinguished.
(b) The expression ’whenever the appropriate Government so
directs’ in s. 17(1) refers to the taking of possession and
not to the declaration of urgency. But even in cases of
urgency, Government may not think it necessary to take
immediate profession. Hence, it could not be said that on
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,the expiry of 15 days from the publication of the notice
under s. 9(1), the lands had vested in the Government.
[198G-H; 199A-C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : C.A. No. 379 and 741 of 1967.
Appeal from the judgment and order dated October 14, 1966 of
the Patna High Court in Civil Writ jurisdiction Cases No.
434 and 435 of 1966,
194
R. K. Garg, S. C. Agarwal and D. P. Singh, for the
appellant (in C.A. 741 of 1967)
A. K. Sen, R. K. Garg, S. C. Agarwal and D. P. Singh, for
the appellant (in C.A. No. 179 of 1967)
Niren De, Attorney General for India, D. Goburdhun, for the
respondents (in both the appeals).
The Judgment of the Court was delivered by
Hegde, J. In these appeals by certificate, the only question
that arises for decision is whether on the facts and in the
circumstances of these cases, the Government of Bihar was
competent to withdraw from acquisition certain lands sought
to be acquired under Acquisition Cases Nos. 3 and 4 of 1959-
60 before the Additional Land Acquisition Officer,
Hazaribagh.
The lands concerned in these cases were notified for
acquisition in 1959 under s. 4 of the Land Acquisition Act,
1894 (to be hereinafter referred to as the Act under two
different notifications. At about the same time, the
Government also took action under S. 17(4) of the Act and
dispensed with proceedings under s. 5A. Simultaneously
notifications under s, 6 were also issued. Thereafter
proceedings under ss. 9 and 11 were taken. When the
acquisition proceedings were pending before the Land Acqui-
sition Officer, the Government withdrew from acquisition
some of the lands earlier notified under ss. 4 and 6,
Consequently the Land Acquisition Officer excluded the
compensation in respect of those lands from the computation
made by him earlier. The appellant (common appellant in
both the appeals) being aggrieved by that exclusion moved
the High Court of Patna under Art. 226 of the Constitution
seeking directions from that court to the Land Acquisition
Officer to award him compensation in respect of those lands
as well. The High Court rejected those writ petitions.
Hence these appeals.
The lands in question are situate in the villages of Telaiya
and Debipur. On June 11, 1948, they were notified under ss.
14 and 21 of the Bihar Private Forest Act, 1947. Thereafter
they were again notified under s. 29 of the Indian Forest
Act in 1953 and 1954. Later on the Government felt that in
order to include those lands in the adjoining Government
forest, it would be necessary to acquire them. Consequently
they were notified for acquisition. But after the lands in
question were tentatively valued, the Government thought
that it was not worthwhile to acquire entire area notified
for acquisition. Hence it withdrew from acquisition a
substantial portion of lands notified for acquisition, These
in brief are the material facts.
195
The allegation of the appellant is that after the lands in
question were notified under s. 29 of the Indian Forest Act,
the Forest Department unlawfully took possession of those
lands and continued to be in possession of the same and
therefore when notifications under s. 6 were issued, the
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Government became the owner of those lands and thereafter,
it was not competent for the Government to withdraw from
acquisition any of the lands notified under s. 6.
Alternatively it was contended that the Government became
the full owner of those lands when the Collector caused a
public notice to be given under s. 9(1) of the Act. Lastly
it was contended that the lands in question had been
actually taken possession of by the Collector under s. 17(1)
of the Act and hence they vested in the Government.
The Government of Bihar has denied all the above allega-
tions. It denied that the Government took possession of the
lands in question in 1954. It further denied that those
lands had been taken possession of under s. 17(1). The
Government denied the allegation of the appellant that it
became the owner of the lands in question either when
notifications under s. 6 or notices tinder s. 9(1) were
issued.
The High Court was not satisfied from the evidence adduced
by the appellant that the Government had taken possession of
the lands in question in 1954. It thought that this was a
disputed question of fact and on the material before if, it
was not possible to decide that question conclusively and
hence it declined to pronounce on that question. The High
Court repelled the contention of the appellant that posse
ssion had been taken under s. 17(1). It also did not
accept the contention of the appellant that on the issue of
notices under s. 9(1), Government bad become the owner of
the lands in question. In the result the High Court
dismissed the writ petitions. The very contentions taken
before the High Court were repeated in this Court.
Now coming to the question whether the Government took
possession of the lands in question in 1954, it was conceded
that the Government was not competent to take possession of
those lands either under the notifications issued under ss.
14 and 21 of the Bihar Private Forest Act 1947 or under the
notifications issued under s. 29 of the Indian Forest Act.
The case of the appellant is that the Government unlawfully
took possession of the properties. In support of that
contention reliance was mainly placed on the letter written
by the Divisional Forest Officer, Kodarma Division to the
Range Officer, Kodarma on October 1, 1958 as well as on the
requisition sent to the Land Acquisition Officer by the same
officer on January 24, 1959 (Annexure M. The concerned
196
Divisional Forest Officer was one Brijmohan Prasad. In the
letter in question he stated :
"The forest in the above villages are in
possession of the Forest Department since
sometime past. .
In-the requisition again, he mentioned
"The land was previously notified under s.
29(3) of the I.F.A. and it was demarcated and
possession taken. Later on it was found that
the land in question was raiyati, it was
necessary to acquire under the Land
Acquisition Act."
In para 12 of that requisition, he further
stated
"it is already under possession and this is to
be formally handed over immediately."
This Officer has filed an affidavit before the High Court.
Therein he explained that he made the statements in question
under an erroneous impression that the Government came into
possession of the lands in question in view of the
notification issued under s. 29 of the Indian Forest Act.
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This statement of his receives support from his letter
written to the Land Acquisition Officer on August 11, 1959
wherein he mentioned :
"With reference to your above letters, I have
to say that Debipur Forest was notified under
the Indian Forest Act on the 8th December,
1953 and that of Telaiya on the 22nd November,
1954. Thus, date of possession is 8th
December, 1953 and 22nd November 1954
respectively."
It is possible that this officer had an erroneous impression
as to the effect of a notification under s. 29 of the Indian
Forest Act. The other documents relied on by the appellant
are wholly inconclusive. Hence there is no need to refer to
them. We are in agreement with the High Court that there is
no satisfactory evidence to show that the Government had
taken possession of these lands in 1953 or 1954. As the
parties had not enough opportunity to adduce evidence on
this point, we will not be justified in finally deciding
this question. It is sufficient if we say that on the
material on record, the High Court was justified in not
pronouncing on this question in a petition under Art. 226 of
the Constitution. It is open to the appellant to seek such
other remedy as may be available to him under law if the
Government had unlawfully taken possession of those lands.
’Me. question whether the Government had unlawfully taken
possession of those
197
la ads in 1954, as we shall presently see, is wholly
irrelevant for the decision of these appeals.
The next point that arises for decision is whether delivery
of the lands notified for acquisition was taken under s.
17(1) as contended by the appellant. The Government becomes
the owner of the lands notified for acquisition only when
the Collector takes possession of those lands either under
s. 16 or under s. 17(1). Both those provisions provide that
when the Collector takes possession under those provisions,
the lands notified for acquisition shall vest absolutely in
the Government free from all encumbrances. Until and unless
possession is taken under either of those provisions, the
lands notified for acquisition do not vest in the
Government. Section 48(1) of the Act provides :
"Except in the case provided for in section
36, the Government shall be at liberty to
withdraw from the acquisition of any land of
which possession has not been taken."
Section 36 is not relevant for our present purpose. Posses-
sion referred to in s. 48 necessarily is the possession
taken either under s. 16 or under s. 17(1). Section 17(1)
says :
"In cases of urgency, whenever the appropriate
Government so directs, the Collector, though
no such award has been made, may, on the
expiration of fifteen (lays from the
publication of the notice mentioned in section
9, sub-section (1), take possession of any
waste or arable land needed for public
purposes or for a Company. Such land shall
thereupon vest absolutely in the Government
free from all encumbrances."
Ordinarily possession of any land notified for acquisition
is taken when the Collector had made an award under s. 11
and not before it. But an exception is provided under s.
17(1). In cases of urgency, if the Government so directs,
the Collector may, though no award has been made under s.
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11, on the expiration of the 15 days from the publication of
the notice mentioned in s. 9(1) take possession of any waste
or arable land and the land shall thereupon vest absolutely
with the Government free from all encumbrances. From this
provision, it is plain that the Collector cannot take
possession of the land in question unless the Government
directs him to do so. The Government can direct him to do
so only in cases of urgency. Even when the Government
directs the Collector to take possession, lie cannot ,do so
until expiration of 15 days from the publication of a notice
198
under s. 9(1). There is no material on record to show that
the Government had given to the Collector any direction
under S. 17 (1 ); nor is there any material to show that the
lands in question had been taken possession of by the
Collector under s. 17(1’). It is true that in the order-
sheet maintained by the Land Acquisition Officer, a note was
made on October 17, 1959 :
"Shri B. J. Yadav Kgo, to deliver possession
at the spot to the representative of the R.O.
on 16-11-59 Draft addressed to R.O. is
signed."
But there is nothing to show that this order was
implemented. According to the respondent this order was not
implemented.
Relying on the decision of this Court in Lt. Governor of
Himachal Pradesh v. Avinash Sharma(1) it was contended by
Mr. R. K. Garg, the learned Counsel for the appellant that
once it is established that the possession of the land
notified for acquisition was taken in 1953 or 1954, it was
unnecessary for his client to establish that any possession
was taken under S. 17(1). According to him on the
expiration of 15 days after the issue of notices under S.
9(1), the lands in question vested in the Government. The
decision in question does not lend any support for this con-
tention. In that case not only the property had been taken
possession of by the Government even before the acquisition
proceedings had started but appropriate proceedings under s.
9(1) and s. 17(1) were also taken though there was no actual
taking of possession under s. 17(1). Under those
circumstances this Court observed :
"In the present case a notification under S.
17(1) and (4) was issued by the State
Government and possession which had previously
been taken must, from the date of expiry of
fifteen days from the publication of the
notice tinder S. 9(1), be deemed to be the
possession of the Government.
In the present case, as mentioned earlier, no material has
been placed before the Court to show that action under s.
17(1) had been taken.
It was next contended by Mr. Garg and Mr. A. K. Sen, that
the expression "whenever the appropriate government so
directs" in s. 17(1) refers to urgency and not to the taking
of possession of the lands notified for acquisition. Their
further contention was that no sooner the Government issued
the notification under s. 1.7(4), the factum of urgency was
established and hence on the expiration of the fifteen daYs
from. the publication of notice under
(1) [1971] S.C.R. 413
199
s.9 (1) the lands which were already in the possession of
the Government vested in the Government. We are unable to
accept this construction of s. 17(1). In our judgment s.
17(1) is plain and unambiguous. The expression "whenever
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the appropriate government so directs" in that section
refers to the taking of possession and not to the
declaration of urgency. Even in case of urgency, the
Government may not think it necessary to take immediate
possession for good reasons. Neither the language of
s.17(1) nor public interest justifies the construction
sought to be placed by the learned Counsel for the
appellant.
For the reasons mentioned above, these appeals fail and they
are dismissed; but in the circumstances of the case, we
direct the parties to bear their own costs in these appeals.
Before concluding the case, it is necessary to record the
assurance given by the Attorney-General on behalf of the
State Government of Bihar that the Government of Bihar will
not realise from the appellant any interest on the loans
advanced for the development of the lands notified for
acquisition in the two Land Acquisition cases from the dates
they were notified under s. 29 of the Indian Forest Act. A
Memo. to that effect has been filed.
V.P.S. Appeals dismissed.
200