Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.6228-6229 OF 2002
National Thermal Power Corporation Ltd. …Appellant
Versus
Mahesh Dutta and others …Respondents
J U D G M E N T
S.B. SINHA, J :
1. As all the cases involve similar questions of fact and law, they were
taken up for hearing together and are being disposed of by this common
judgment.
2. We may, however notice the fact of the matter involved in Civil
Appeal Nos.6228-6229 of 2002.
1
Appellant is a Government of India Undertaking (NTPC). It is
engaged in the business of generation of electricity. It, for the purpose of
setting up of a Thermal Power Station at Village Sarna in the District of
Ghaziabad in the State of Uttar Pradesh, submitted a proposal to the State of
Uttar Pradesh for acquisition of lands situated in Village Dadri, Tehsil
Ghaziabad, District Ghaziabad.
3. Pursuant or in furtherance of the said request, a Notification was
issued in terms of Section 4 of the Land Acquisition Act, 1894 (for short
‘the Act’) notifying the intention of State to acquire 105 Bighas 2 Biswas
and 16 Biswanis (equivalent to 65.7125 acres) of lands situated at the
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aforementioned village. It was published in the Official Gazette on 8
September, 1984
4. On the premise that generation of electricity was extremely urgent and
National Capital Region faced acute shortage of electricity, the emergency
provisions contained in Sections 17(1) and 17(4) of the Act were invoked.
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A declaration in terms of Section 6 of the Act was issued on 26 September,
1984. As the provisions of sub-section (4) of Section 17 of the Act were
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applied, notices were issued on 27 October, 1984 under Section 9 of the
Act to the claimants for payment of compensation in respect of the acquired
land.
2
5. However, admittedly prior to taking over possession of land under the
emergency powers, the Collector disbursed 80% of the amount of
compensation determined in terms of Section 17(3A) of the Act. A
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possession certificate was issued by the Collector on 16 January, 1984,
which reads as under :-
“ POSSESSION CERTIFICATE
LAND PERMANENT REQUIRED FOR THE
PLANNED Industrial Construction of NTPC
Plant, District Ghaziabad through the NTPC Ltd.,
Ghaziabad
Certified that I on behalf of the Collector,
Ghaziabad have on this day the 16.11.1984 taken
over the possession of the land detailed below
comprising an area 105 B – 2Bs-16B or 6751.3
acres and (not legible (name not ligible) of
D.L.A.O’s Office to hand over the possession of
the same land to the NTPC Ltd., Ghaziabad.
Through Sri. D.V. (not ligible), village Sarna,
Muradnagar, Pargana Jalalabad, District,
Ghaziabad.
Sd/-
(District Land Acquisition Officer, Ghaziabad)
Notification u/s. 6 :- 7574/P-3-84-23-26
Land P-84__264-84 published
on 29.9.84.
Certified that I on behalf of the Manager,
NTPC Ltd., Ghaziabad have to take over
3
possession of the abovementioned land through
______________________ today.”
Khasra numbers and area of the plots, possession whereof had been
taken, were specified therein.
6. Despite the same, the appellant contended that it had obtained the
requisitioned physical possession of land admeasuring 10.215 acres only and
the rest of the land continued to remain in possession of the land owners.
It is stated that the Ministry of Environment made recommendations
that the choice of place for setting up a Thermal Power Station, having
regard to its proximity to the National Capital being incorrect, the site
thereof should be shifted. Pursuant thereto or in furtherance thereof, the site
of the plant was shifted from Sarna, Murad Nagar to Dadri Tehsil.
However, the Land Acquisition Officer despite the same proceeded to
determine the amount of compensation payable for the acquisition of land.
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7. An Award was made on 24 September, 1986.
A reference in terms of Section 18 of the Act was made which was
answered by the learned Additional District Judge, Ghaziabad by a order
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dated 22 October, 1993 determining the amount of compensation @
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Rs.155/- per sq. yards and Rs.115/- per sq. yds. in respect of two references
made separately before it. .
8. First appeals were preferred thereagainst in February, 1984 by NTPC
before the High Court. Inter alia on the premise that possession of the entire
land of 65.713 acres had not been obtained, the District Magistrate was
approached for issuance of a notification denotifying the acquisition of the
balance area i.e. for withdrawal of acquisition of land admeasuring 55.498
acres.
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9. By its letter dated 24 February, 1986, NTPC submitted a proposal as
regards denotification of the land, which reads as under :-
“ Kindly refer to our letter No.08/GM/13
dated January 8, 1986, on the above subject,
addressed to District Land Acquisition Officer and
copy endorsed to you (copy enclosed for ready
reference). In continuation of para 2 of that letter
this is to inform you that there are five cases in
which delivery of possession is shown to have
been given. These are of villages Sarna,
Khurrampur, Sultanpur, Jalalpur and
Mohiuddinpur. In Sarna, advance compensation
has been paid to most of the persons affected while
in Khurrampur only a few persons have been paid
the advance compensation. In cases of Sultanpur,
Jalalpur and Khurrampur villages – we did not get
physical possession and the land owners continue
to be in possession their lands even now. In many
cases, their crops are standing on the land in
question. Further, it may be added that the Land
5
Acquisition Amendment Act 1984 came into force
w.e.f. 24.9.1984. As per sub-section (3A) to
Section 17 of the Land Acquisition Act it is made
obligatory that before taking possession of any
land the Collector shall pay 80% of the
compensation to the interested persons. This
mandatory provision not having been complied
with, the delivery of possession on paper has no
legal force and that is why land owners did not
allow NTPC to take possession of these lands.
Any possession without such 80% compensation
are likely to be vitiated even if the land is proposed
to be acquired. Similarly, in the village of
Mohiuddinpur Hissali, no compensation has been
paid.
It is understood that some mutations in
respect of lands of these villages in favour of
NTPC have been made in the revenue records.
Obviously there appears to be some discrepancy.
Since no legally valid possession has been given to
NTPC nor land owners have allowed NTPC to take
possession of these lands, mutations in revenue
records made need to be set right by necessary
correction proceedings.
It is, therefore, requested that the possession
certificates of these villages may please be
cancelled and original entries in the revenue
records may be ordered to be restored..”
10. The said proposal was forwarded to the Commissioner and Director
(Land Acquisition), Directorate, Board of Revenue by the District
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Magistrate by his letter dated 11 August, 1994.
6
NTPC issued a clarification to the Commissioner and Director, Board
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of Revenue, by its letter dated 13 August, 2004. On or about 18 August,
1994 an inspection was carried by the Land Acquisition Amin, Naib
Tehsildar together with the representatives of NTPC and as per the report
submitted pursuant thereto, the appellant is said to have been found in
possession of only 10.215 acres of land.
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11. On 11 November, 1994 the State of U.P. issued a Notification in
terms of Section 48 of the Act.
Aggrieved, respondents filed a writ application before the High Court
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on or about 29 August, 1995 and a Division Bench of the High Court
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stayed the consequential effect of the Notification dated 11 November,
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1994. On or about 9 September, 1997 the appellant filed an application for
vacating the stay which having been refused, a Special Leave Petition was
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filed before this Court, which was dismissed by an order dated 14 October,
1997.
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By reason of a judgment and order dated 21 July, 1998 the said writ
petition was allowed.
12. Indisputably on the same day, the same Bench passed judgment in the
First Appeals preferred by appellant (NTPC) against the order of the
7
nd
Reference Court dated 22 October, 1993. We shall deal with the said
matter separately.
13. Mr. Raju Ramachandran, learned senior counsel appearing on behalf
of the NTPC would contend that although in the event possession had been
taken by the Collector from the land owners, Section 48 of the Act will have
no application but in view of the fact that possession of 55.498 acres of land
had not been delivered in favour of NTPC and merely a symbolic possession
had been delivered, the High Court must be held to have committed a
serious error in passing the impugned judgment.
14. Mr. Ranjit Kumar, learned senior counsel appearing on behalf of the
respondents, on the other hand, would contend :-
(i) Having regard to the provisions contained in Section 17(1) of the
Act, as the vesting of the acquired land takes place immediately,
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the impugned Notification dated 1 November, 1994 has rightly
been held to be illegal and without jurisdiction.
(ii) Having regard to the certificate of possession issued by the
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Collector on 16 November, 1984 under the provisions of the Act,
stating possession of entire land had been taken and the details
thereof having been mentioned in the said certificate itself, it is too
8
late in the day for the appellant/NTPC to contend that possession
of a major portion of the land had was not taken over.
(iii) The fact that the possession of the entire land had been taken over
not only would appear from the materials brought on record during
the land acquisition proceedings culminating in passing of the
Award but also from the award of the Reference Court as also the
judgment of the High Court in the First Appeals and in that view of
the matter, it would not be correct to contend that the High Court
could not have entered into such disputed questions of fact,
particularly when the validity or otherwise of the proceedings is
not in question.
15. A Notification under Section 4 of the Act was issued. Emergency
provisions contained in Section 17 of the Act were resorted to. Sub-sections
(1), (3A) and 4 of the Act read as under :-
“17. Special powers in cases of urgency.-
(1) 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 days from the publication of the notice
1
mentioned in section 9, sub-section (1), [take
possession of any waste or arable land needed for a
public purpose]. Such land shall thereupon vest
9
absolutely in the Government, free from all
encumbrances.
(2) …. …. ….
(3) …. …. ….
(3A) Before taking possession of any land under
sub-section (1) or sub-section (2), the Collector
shall, without prejudice to the provisions of sub-
section (3),--
(a) tender payment of eighty per centum of the
compensation for such land as estimated by him
to the persons interested entitled thereto, and
(b) pay it to them, unless prevented by some
one or more of the contingencies mentioned in
section 31, sub-section (2), and where the
Collector is so prevented, the provisions of
section 31, sub-section (2), (except the second
proviso thereto), shall apply as they apply to the
payment of compensation under that section.
(4) In the case of any land to which, in the opinion
of the appropriate Government, the provisions of
sub-section (1) or sub-section (2) are applicable,
the appropriate Government may direct that the
provisions of section 5A shall not apply, and, if it
does not so direct, a declaration may be made
4
under section 6 in respect of the land at any time
[after the date of the publication of the notification
under section 4, sub-section (1).”
16. Indisputably the said provisions were been taken recourse to and, thus,
the lands under acquisition vested absolutely in the Government.
10
17. Concedingly, a declaration in terms of Section 6 of the Act was issued
whereafter notices to persons interested under Section 9 thereof had also
been issued. Award had also been published.
Section 16 of the Act providing for taking over possession of the land
after making the Award would not be applicable in this case as possession is
said to have already been taken over in terms of sub-section (1) of Section
17 thereof.
It is in the aforementioned backdrop of factual matrix, the power of
the State to withdraw the Notification of acquisition as envisaged under
Section 48 of the Act falls for our consideration.
The said provision is as under :-
“ Section 48 – Completion of acquisition not
compulsory, but compensation to be awarded
when not completed
(1) 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.
(2) Whenever the government withdraws from any
such acquisition, the Collector shall determine the
amount of compensation due for the damage
suffered by the owner in consequence of the notice
or of any proceedings thereunder, and shall pay
such amount to the person interested, together with
all costs reasonably incurred by him in the
11
prosecution of the proceedings under this Act
relating to the said land.
(3) The provisions of Part III of this Act shall
apply, so far as may be, to the determination of the
compensation payable under this section.”
18. It is a well settled proposition of law that in the event possession of
the land, in respect whereof a Notification had been issued, had been taken
over, the State would be denuded of its power to withdraw from the
acquisition in terms of Section 48 of the Act.
19. Whether actual or symbolic possession had been taken over from the
land owners is essentially a question of fact. Taking over of possession in
terms of the provisions of the Act would, however, mean actual possession
and not symbolic possession. The question, however, is as to whether the
finding of fact arrived at by the High Court that physical possession, indeed,
had been taken over by the Collector is correct or not.
20. We have noticed hereinbefore the background facts. The emergency
provisions were resorted to. Even 80% of the compensation had been paid
way back in 1984. Had possession of the vacant land been not taken, the
question of payment of 80 % of compensation would not have arisen. All
other legal requirements to invoke the said provision have been complied
with.
12
21. Mr. Raju Ramachandran, however, would draw our attention to a
letter dated 24.2.1986 issued by the appellant to the District Magistrate to
contend that even payment of 80% of the compensation had not made and,
thus, the purported delivery of possession was merely a papr transaction.
Our attention had further been drawn to the written statement filed on behalf
of the appellant before the reference court, which reads as under :
“That out of the total acquired area in question the
respondent utilized only a portion of the land by
construction of their Satellite building while
remaining area could not be put into use by the
respondent, since the land is in actual physical
possession of the land owners and they are
deriving all the benefits from the land thereof and
the respondent is having only a symbolic
possession over the same.”
22. We, however, have not been able to persuade ourselves to agree with
the aforementioned submissions. The Officers of the appellant themselves
were parties in regard to the process of actual physical possession obtained
on its behalf by the Collector.
23. Even in the award made by the Special Land Acquisition Collector,
the invocation of the provisions of Section 17 of the Act as also obtaining of
possession of the land in question had clearly been found.
We may notice some of the statements recorded therein :
13
“10. Whether Sec.17 is in force : Yes
11. Date of the right : 16.11.84
XXX XXX XXX
18. Amount of Interest : 9% payable from
16.11.84 i.e. from the
date of acquisition
15% further from that
date payable to and
owner.”
We may quote hereinbelow the relevant portions from the said award :
“4. 12% additional from 8.9.84
i.e. from the date of
notification till date
of possession i.e. on
16.11.84 : Rs.1,46,531.69”
24. From a perusal of the award, therefore, it is evident that not only the
provisions of Section 17 of the Act were found to have been implemented
but even interest had been granted from the date of acquisition, namely,
from the date of taking over of possession. Interest had also been granted in
terms of Section 23A of the Act from the date of notification till the date of
actual taking over of possession. The Reference Court also, in its judgment,
held :
“(2) The petitioners will get 12% per annum as
additional amount on the above market value for
the period commencing from the date of
14
publication of the notification u/s. 4(1) dated
6.9.84 to the date of possession dated 16.11.84.”
25. In the memo of appeal preferred by the appellant before the High
Court a statement was made that the possession of the land was taken by
invoking Section 17 of the Act on 16.11.1984 and, thus, interest at the rate
of 15% per annum on the excess amount under the provisions of Section 28
of the Act would be payble only in the case where such excess payment had
not been made before the expiry of one year period from the date on which
the possession has been taken and as determined by the Court. In view of
the stand taken by the appellant before the Land Acquisition Authorities as
also the reference court and the High Court, in our opinion, it is estopped
and precluded from raising a plea contra. The Reference Court, in paragraph
4 of its judgment, also noticed that the possession of the land has been taken
over on 16.11.1984. No objection was taken before the Reference Court that
possession had not been taken and, thus, interest was not payable. No issue
was also framed in that regard.
Even before us, the only ground taken was that the land could not be
put to use which is a non-issue.
15
26. Strong reliance has been placed upon a decision of this Court in
Balwant Narayan Bhagde v. M.D. Bhagwat, [ AIR 1975 SC 1967 = (1976)
1 SCC 70 ], wherein it has been held :-
“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 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
16
of any fraudulent or collusive transaction of taking
of mere paper possession, without the occupant or
the owner ever coming to know of it.”
This decision, therefore, itself is an authority for the proposition that
no absolute rule in this behalf can be laid down.
In Larsen & Toubro Ltd. v. State of Gujarat & Ors. [(1998) 4 SCC
387] and P.K. Kalburqui v. State of Karnataka & Ors. [(2005) 12 SCC 489],
the same view has been reiterated.
27. These decisions, as noticed hereinbefore, do not lay down an absolute
rule. The question as to whether actual physical possession had been taken
in compliance of the provisions of Section 17 of the Act or not would
depend upon the facts and circumstances of each case.
28. When possession is to be taken over in respect of the fallow or Patit
land, a mere intention to do so may not be enough. It is, however, the
positive stand by the appellant that the lands in question are agricultural land
and crops used to be grown therein. If the lands in question are agricultural
lands, not only actual physical possession had to be taken but also they were
required to be properly demarcated. If the land had standing crops, as has
been contended by Mr. Raju Ramachandran, steps in relation thereto were
required to be taken by the Collector. Even in the said certificate of
17
possession, it had not been stated that there were standing crops on the land
on the date on which possession was taken. We may notice that delivery of
possession in respect of immoveable property should be taken in the manner
laid down in Order XXI Rule 35 of the Code of Civil Procedure.
29. It is beyond any comprehension that when possession is purported to
have been taken of the entire acquired lands, actual possession would be
taken only of a portion thereof. The certificate of possession was either
correct or incorrect. It cannot be partially correct or partially incorrect.
Either the possession had actually been delivered or had not been delivered.
It cannot be accepted that possession had been delivered in respect of about
10 acres of land and the possession could not be taken in respect of the rest
55 acres of land. When the provisions of Section 17 are taken recourse to,
vesting of the land takes effect immediately.
30. Another striking feature of the case is that all the actions had been
taken in a comprehensive manner. The Collector in his certificate of
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possession dated 16 November, 1984 stated that the possession had been
taken over in respect of the entire land; the details of the land and the area
thereof had also been mentioned in the certificate of possession; even NTPC
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in its letter dated 24 February, 1986 stated that possession had not been
delivered only in respect of land situated in four villages mentioned therein.
18
Indisputably NTPC got possession over 10.215 acres of land. It raised
constructions thereover. It is difficult to comprehend that if the NTPC had
paid 80% of the total compensation as provided for under sub-section (3A)
of Section 17 of the Act, out of 65.713 acres of land it had obtained
possession only in respect of about 10.215 acres of land and still for such a
long time it kept mum. Ex-facie, therefore, it is difficult to accept that
merely symbolic possession had been taken.
In Lt. Governor of Hmachal Pradesh & Anr. v. Sri Avinash Sharma
[(1970 (2) SCC 149], this Court has stated the law, thus :
“But these observations do not assist the case of
the appellant. It is clearly implicit in the
observations that after possession has been taken
pursuant to a notification under Section 17(1) the
land is vested in the Government, and the
notification cannot be cancelled under Section 21
of the General Clauses Act, nor can the
notification be withdrawn in exercise of the
powers under Section 48 of the Land Acquisition
Act. Any other view would enable the State
Government to circumvent the specific provision
by relying upon a general power. When
possession of the land is taken under Section
17(1), the land vests in the Government. There is
no provision by which land statutorily vested in the
Government reverts to the original owner by mere
cancellation of the notification.”
19
The said view was affirmed in Satendra Prasad Jain & Ors. v. State of
U.P. & Ors. [(1993) 4 SCC 369], in the context of applicablility of Section
11A of the Act, it was stated :
“When Section 17(1) is applied by reason of
urgency, Government takes possession of the land
prior to the making of the award under Section 11
and thereupon the owner is divested of the title to
the land which is vested in the Government.
Section 17(1) states so in unmistakable terms.
Clearly, Section 11-A can have no application to
cases of acquisitions under Section 17 because the
lands have already vested in the Government and
there is no provision in the said Act by which land
statutorily vested in the Government can revert to
the owner.”
In Pratap & Anr. v. State of Rajasthan & Ors. [(1996) 3 SCC 1], a
Three Judge Bench of this Court opined as under :
“ 12. The provisions of sub-section (4) of Section
52 are somewhat similar to Section 17 of the Land
Acquisition Act, 1894. Just as publication of a
notification under Section 52(1) vests the land in
the State, free from all encumbrances, as provided
by Section 52(4), similarly when possession of
land is taken under Section 17(1) the land vests
absolutely in the Government free from all
encumbrances. A question arose before this Court
that if there is a non-compliance with the
provisions of Section 5-A and an award is not
made in respect to the land so acquired, would the
acquisition proceedings lapse. In Satendra Prasad
Jain v. State of U.P. this Court held that once
possession had been taken under Section 17(1) and
the land vested in the Government then the
20
Government could not withdraw from acquisition
under Section 48 and the provisions of Section 11-
A were not attracted and, therefore, the acquisition
proceedings would not lapse on failure to make an
award within the period prescribed therein. It was
further held that non-compliance of Section 17(3-
A), regarding part payment of compensation
before taking possession, would also not render the
possession illegal and entitle the Government to
withdraw from acquisition. The aforesaid principle
has been reiterated by this Court in P. Chinnanna
v. State of A.P. and Awadh Bihari Yadav v. State
of Bihar . In view of the aforesaid ratio it follows
that the provisions of Section 11-A are not
attracted in the present case and even if it be
assumed that the award has not been passed within
the stipulated period, the acquisition of land does
not come to an end.”
In Sanjeevnagar Medical & Health Employees’ Cooperative Housing
Society v. Mohd. Abdul Wahab & Ors. [(1996) 3 SCC 600], it was held :
6
“…In Satendra Prasad Jain v. State of U.P. , the
question arose: whether notification under Section
4(1) and the declaration under Section 6 get lapsed
if the award is not made within two years as
envisaged under Section 11-A? A Bench of three
Judges had held that once possession was taken
and the land vested in the Government, title to the
land so vested in the State is subject only to
determination of compensation and to pay the
same to the owner. Divesting the title to the land
statutorily vested in the Government and reverting
the same to the owner is not contemplated under
the Act. Only Section 48(1) gives power to
withdraw from acquisition that too before
possession is taken. That question did not arise in
21
this case. The property under acquisition having
been vested in the appellants, in the absence of any
power under the Act to have the title of the
appellants divested except by exercise of the
power under Section 48(1), valid title cannot be
defeated. The exercise of the power to quash the
notification under Section 4(1) and the declaration
under Section 6 would lead to incongruity.”
31. Yet again, in Tamil Nadu Housing Board v. A. Viswam(Dead) by Lrs.
[(1996) 8 SCC 259], this Court has categorically laid down that when the
accepted mode of taking possession of the acquired land is resorted to, that
would constitute taking possession of the land.
The said principle has been reiterated in Bangalore Development
Authority & Ors. v. R. Hanumaiah & Ors. [(2005) 12 SCC 508], in the
following terms :
“ 43. In our considered view, the Division Bench
has erred in holding that the State Government
could release the lands in exercise of its power
under Section 48 of the Land Acquisition Act,
1894 from the acquisition.”
It has further been held :
“ 46. The possession of the land in question was
taken in the year 1966 after the passing of the
award by the Land Acquisition Officer. Thereafter,
the land vested in the Government which was then
transferred to CITB, predecessor-in-interest of the
22
appellant. After the vesting of the land and taking
possession thereof, the notification for acquiring
the land could not be withdrawn or cancelled in
exercise of powers under Section 48 of the Land
Acquisition Act. Power under Section 21 of the
General Clauses Act cannot be exercised after
vesting of the land statutorily in the State
Government.”
{See also State of Kerala & Ors. v. V.P. Kurien & Ors. [(2005) 11
SCC 493]}.
32. The High Court, therefore, in our opinion, was correct in its view.
33. We may now consider the question as to whether the issue as to
whether possession of the acquired land had actually been taken over or not
being a disputed question of fact could not have gone into by the High
Court. It is not a case where oral evidence was required to be taken. There
is no law that the High Court is denied or debarred from entering into a
disputed question of fact. The issue will have to be determined keeping in
view the fact situation obtaining in each case. If a disputed question can be
determined on the basis of the documents and/or affidavit, the High Court
may not ordinarily refuse to do so. In a given case, it may also examine
witnesses.
23
In Smt. Gunwant Kaur & Ors. v. Municipal Committee, Bhatinda &
Ors. [(1969) 3 SCC 769], it was held :
“ 14. The High Court observed that they will not
determine disputed question of fact in a writ
petition. But what facts were in dispute and what
were admitted could only be determined after an
affidavit in reply was filed by the State. The High
Court, however, proceeded to dismiss the petition
in limine. The High Court is not deprived of its
jurisdiction to entertain a petition under Article
226 merely because in considering the petitioner’s
right to relief questions of fact may fall to be
determined. In a petition under Article 226 the
High Court has jurisdiction to try issues both of
fact and law. Exercise of the jurisdiction is, it is
true, discretionary, but the discretion must be
exercised on sound judicial principles. When the
petition raises questions of fact of a complex
nature, which may for their determination require
oral evidence to be taken, and on that account the
High Court is of the view that the dispute may not
appropriately be tried in a writ petition, the High
Court may decline to try a petition. Rejection of a
petition in limine will normally be justified, where
the High Court is of the view that the petition is
frivolous or because of the nature of the claim
made dispute sought to be agitated, or that the
petition against the party against whom relief is
claimed is not maintainable or that the dispute
raised thereby is such that it would be in
appropriate to try it in the writ jurisdiction, or for
anologous reasons.
15. From the averments made in the petition filed
by the appellants it is clear that in proof of a large
number of allegations the appellants relied upon
documentary evidence and the only matter in
respect of which conflict of facts may possibly
24
arise related to the due publication of the
notification under Section 4 by the Collector.
16. In the present case, in our judgment, the High
Court was not justified in dismissing the petition
on the ground that it will not determine disputed
question of fact. The High Court has jurisdiction to
determine questions of fact, even if they are in
dispute and the present, in our judgment, is a case
in which in the interests of both the parties the
High Court should have entertained the petition
and called for an affidavit in reply from the
respondents, and should have proceeded to try the
petition instead of relegating the appellants to a
separate suit.”
Such a direction has been issued, as noticed hereinbefore, even in a
land acquisition matter.
Yet again, in Babubhai Muljibhai Patel v. Nandlal Khodidas Barot
[(1974) 2 SCC 706], this Court has held :
“ 10. It is not necessary for this case to express an
opinion on the point as whether the various
provisions of the Code of Civil Procedure apply to
petitions under Article 226 of the Constitution.
Section 141 of the Code, to which reference has
been made, makes it clear that the provisions of the
Code in regard to suits shall be followed in all
proceedings in any court of civil jurisdiction as far
as it can be made applicable. The words “as far as
it can be made applicable” make it clear that, in
applying the various provisions of the Code to
proceedings other than those of a suit, the court
must take into account the nature of those
proceedings and the relief sought. The object of
25
Article 226 is to provide a quick and inexpensive
remedy to aggrieved parties. Power has
consequently been vested in the High Courts to
issue to any person or authority, including in
appropriate cases any government, within the
jurisdiction of the High Court, orders or writs,
including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and
certiorari. It is plain that if the procedure of a suit
had also to be adhered to in the case of writ
petitions, the entire purpose of having a quick and
inexpensive remedy would be defeated. A writ
petition under Article 226, it needs to be
emphasised, is essentially different from a suit and
it would be incorrect to assimilate and incorporate
the procedure of a suit into the proceedings of a
petition under Article 226. The High Court is not
deprived of its jurisdiction to entertain a petition
under Article 226 merely because in considering
the petitioner’s right of relief, questions of fact
may fall to be determined. In a petition under
Article 226 the High Court has jurisdiction to try
issues both of fact and law. Exercise of the
jurisdiction is no doubt discretionary, but the
discretion must be exercised on sound judicial
principles. When the petition raises complex
questions of fact, which may for their
determination require oral evidence to be taken,
and on that account the High Court is of the view
that the dispute should not appropriately be tried in
a writ petition, the High Court may decline to try a
petition (see Gunwant Kaur v. Bhatinda
Municipality ) . If, however, on consideration of the
nature of the controversy, the High Court decides,
as in the present case, that it should go into a
disputed question of fact and the discretion
exercised by the High Court appears to be sound
and in conformity with judicial principles, this
Court would not interfere in appeal with the order
made by the High Court in this respect.”
26
In Balmokand Khatri (supra), it has been observed :-
“4. It is seen that the entire gamut of the
acquisition proceedings stood completed by 17-4-
1976 by which date possession of the land had
been taken. No doubt, Shri Parekh has contended
that the appellant still retained their possession. It
is now well-settled legal position that it is difficult
to take physical possession of the land under
compulsory acquisition. The normal mode of
taking possession is drafting the panchnama in the
presence of panchas and taking possession and
giving delivery to the beneficiaries is the accepted
mode of taking possession of the land. Subsequent
thereto, the retention of possession would
tantamount only to illegal or unlawful possession.”
34. Recently the question came up for consideration before a Division
Bench of this Court in T.N. Housing Board v. Keeravani Ammal, [ (2007) 9
SCC 255 ], wherein it was held :-
“9. On the facts pleaded it is doubtful whether the
Government can withdraw from the acquisition,
since the case of the State and the Housing Board
is that possession has been taken and plans
finalised to fulfil the purpose for which the
acquisition was made. There is no plea in the writ
petition that a request for reconveyance was made
in terms of Section 48-B of the Act as amended in
the State of Tamil Nadu.”
It was furthermore held :-
“15. We may also notice that once a piece of land
has been duly acquired under the Land Acquisition
Act, the land becomes the property of the State.
The State can dispose of the property thereafter or
convey it to anyone, if the land is not needed for
27
the purpose for which it was acquired, only for the
market value that may be fetched for the property
as on the date of conveyance. The doctrine of
public trust would disable the State from giving
back the property for anything less than the market
2
value. In State of Kerala v. M. Bhaskaran Pillai
in a similar situation, this Court observed:
“The question emerges whether the
Government can assign the land to the erstwhile
owners? It is settled law that if the land is
acquired for a public purpose, after the public
purpose was achieved, the rest of the land could
be used for any other public purpose. In case
there is no other public purpose for which the
land is needed, then instead of disposal by way
of sale to the erstwhile owner, the land should
be put to public auction and the amount fetched
in the public auction can be better utilised for
the public purpose envisaged in the Directive
Principles of the Constitution. In the present
case, what we find is that the executive order is
not in consonance with the provision of the Act
and is, therefore, invalid. Under these
circumstances, the Division Bench is well
justified in declaring the executive order as
invalid. Whatever assignment is made, should
be for a public purpose. Otherwise, the land of
the Government should be sold only through
the public auctions so that the public also gets
benefited by getting a higher value.”
35. Furthermore the Collector under the Act was acting as a statutory
authority. When possession has been shown to have been taken over not
only in terms of sub-section (1) of Section 17 of the Act but also by grant of
the certificate and other documents, illustration (e) of Section 114 of the
Evidence Act 1872, must be held to be applicable. Once such a presumption
is drawn the burden would be on the State to prove the contra. The burden
of proof could be discharged only by adducing clear and cogent evidence.
28
Not only the aforementioned documents but even the judicial records clearly
show that the possession had in fact been taken.
36. Mr. Raju Ramachandran, however, made an alternative submission
before us that this Court, in exercise of its jurisdiction under Article 142 of
Constitution of India, may issue necessary directions so as to put a quietus to
the entire matter. This Court cannot foresee all the eventualities.
37. However, before us Mr. Ranjit Kumar, learned senior counsel
appearing on behalf of the respondents, when questioned, categorically
stated that in view of the statement made in the counter affidavit, the
positive case of the respondents is that they had not been in possession.
If the aforementioned statement made by the respondents is found to
be incorrect, legal steps as is permissible in law may be taken. Furthermore,
if the respondents and/or any other person are found to be in possession of
the lands which were the subject matter of acquisition in terms of the
notification under Section 4 of the Act, appropriate steps for eviction
therefor can be initiated. It goes without saying that the authorities of the
State of Uttar Pradesh shall render all cooperation to the appellant in this
behalf.
29
38. It is furthermore neither in doubt nor in dispute that the initiation of
the acquisition proceedings at the instance of the appellant was for setting up
of a thermal power station. It had to be shifted to another site only because
the Central Government asked it to do so keeping in view the ecological
perspective in mind. It is, therefore, permissible for the appellant to put the
land in question which has vested in it for another purpose which would
come within the purview of any public purpose as has been noticed by this
Court in Khatri (supra) and for any other purpose as has been noticed by this
Court in Keerwani Ammal (Supra)
Yet again in Kasturi & Ors. v. State of Haryana [(2003) 1 SCC 335],
this Court has held :
“ 12. If the land was not used for the purpose for
which it was acquired, it was open to the State
Government to take action but that did not confer
any right on the respondents to ask for restitution
of the land. As already noticed, the State
Government in this regard has already initiated
proceedings for resumption of the land. In our
view, there arises no question of any unjust
enrichment to the appellant Company.”
In Ravi Khullar & Anr. v. Union of India & Ors. [(2007) 5 SCC 231],
it was contended :
30
“16 . The learned Additional Solicitor General
appearing on behalf of the respondents submitted
that having regard to the authorities on the subject
the question is no longer res integra. It is not as if
lands acquired for a particular public purpose
cannot be utilised for another public purpose. He
contended that as long as the acquisition is not
held to be mala fide, the acquisition cannot be
invalidated merely because the lands which at one
time were proposed to be utilised for a particular
public purpose, were later either in whole or in
part, utilised for some other purpose, though a
public purpose. He, therefore, submitted that some
change of user of the land, as long as it has a
public purpose, would not invalidate the
acquisition proceeding which is otherwise valid
and legal.”
It was held :
“23 . Referring to the facts of the instant case, it
cannot be disputed that the planned development
of Delhi for which purpose the land was acquired
under Section 4 of the Act is wide enough to
include the development and expansion of an
airport within the city of Delhi. Thus it cannot be
said that the land is actually being utilised for any
purpose other than that for which it was acquired.
The only difference is that whereas initially the
development work would have been undertaken by
DDA or any other agency employed by it, after the
constitution of IAAI, the said development work
had to be undertaken by the newly constituted
authority. Thus there has been no change of
purpose of the acquisition. All that has happened is
that the development work is undertaken by
another agency since constituted, which is
entrusted with the special task of maintenance of
airports. Since the said authority was constituted
31
several years after the issuance of the notification
under Section 4, the acquisition cannot be
invalidated only on the ground that the public
purpose is sought to be achieved through another
agency. This, as we have noticed earlier, was
necessitated by change of circumstances in view of
the creation of the authority i.e. IAAI. Moreover,
since there is no change of public purpose for
which the acquired land is being utilised, the
acquisition cannot be invalidated on that ground.
The purpose for which the lands are being utilised
by a governmental agency is also a public purpose
and as we have noticed earlier, would come within
the ambit of the public purpose declared in Section
4 notification. Therefore, the acquisition cannot be
challenged on the ground that the acquired lands
are not being utilised for the declared public
purpose. Having regard to the facts of the case it
cannot be contended, nor has it been contended,
that the notification under Section 4 of the Act was
issued mala fide.”
39. For the reasons aforementioned, the appeals, being devoid of any
merit, are dismissed subject to the observations made hereinbefore with
costs. Counsel fee assessed at Rs.50,000/- in each of these appeals.
……………………………….J.
[S.B. Sinha]
..…………………………..…J.
[Cyriac Joseph]
New Delhi;
July 16, 2009
32