2009 (7) TMI 1291 - SC - Indian Laws

Acquisition Proceedings - Assessee is a Government of India Undertaking into b usiness of generation of electricity - as contented possession of 55.498 acres of land not been delivered in favour of NTPC - actual or symbolic possession - merely a symbolic possession had been delivered? - 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 - Concedingly, a declaration in terms of Section 6 of the Act was issued whereafter notices to persons interested u/s 9 thereof had also been issued. Award had also been published - power of the State to withdraw the Notification of acquisition as envisaged under Section 48 of the Act falls for our consideration. HELD THAT - 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. 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. 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 publication of the notification u/s. 4(1) dated 6.9.84 to the date of possession dated 16.11.84. The Reference Court, in 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. 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. The Collector in his certificate of possession dated 16th 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 in its letter dated 24th February, 1986 stated that possession had not been delivered only in respect of land situated in four villages mentioned therein. 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. 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. 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. Not only the aforementioned documents but even the judicial records clearly show that the possession had in fact been taken. The appeals, being devoid of any merit, are dismissed subject to the observations made hereinbefore with costs. Counsel fee assessed at ₹ 50,000/- in each of these appeals.

Issues Involved
1. Legality of the acquisition process under the Land Acquisition Act, 1894.
2. Validity of the possession taken by the Collector.
3. Applicability of Section 48 of the Land Acquisition Act for withdrawal of acquisition.
4. Determination of compensation and interest.
5. High Court's jurisdiction to determine disputed questions of fact.

Comprehensive, Issue-wise Detailed Analysis

1. Legality of the Acquisition Process under the Land Acquisition Act, 1894
The appellant, a Government of India Undertaking (NTPC), proposed the acquisition of land for setting up a Thermal Power Station. A Notification under Section 4 of the Land Acquisition Act, 1894, was issued, and emergency provisions under Sections 17(1) and 17(4) were invoked due to the urgent need for electricity generation. The Collector issued notices under Section 9 for payment of compensation. The acquisition process was challenged, but the court found that all legal requirements, including the issuance of a declaration under Section 6 and the payment of 80% compensation, were complied with.

2. Validity of the Possession Taken by the Collector
The appellant contended that only symbolic possession was taken for a portion of the land, while the respondents argued that actual possession was taken for the entire land. The court examined the possession certificate and other documents, which indicated that possession was taken on 16th November 1984. The court held that taking possession under the Act means actual possession, not symbolic, and found that the Collector had taken actual physical possession as required by law. The court also noted that the appellant was estopped from claiming otherwise due to its previous admissions in various legal documents.

3. Applicability of Section 48 of the Land Acquisition Act for Withdrawal of Acquisition
The court considered whether the State could withdraw from the acquisition under Section 48 after possession had been taken. Section 48 allows withdrawal only if possession has not been taken. The court cited precedents establishing that once possession is taken, the land vests in the government, and the acquisition cannot be withdrawn. The court found that possession had indeed been taken, thus Section 48 was not applicable, and the State could not withdraw the acquisition.

4. Determination of Compensation and Interest
The Land Acquisition Officer determined the compensation, and an award was made on 24th September 1986. The Reference Court later determined the compensation at Rs. 155/- and Rs. 115/- per sq. yard in separate references. The court upheld the award and noted that interest was granted from the date of possession, confirming the legality of the compensation process.

5. High Court's Jurisdiction to Determine Disputed Questions of Fact
The appellant argued that the High Court should not have determined disputed facts regarding possession. However, the court held that the High Court has the jurisdiction to determine disputed questions of fact based on documents and affidavits. The court cited precedents affirming that the High Court can decide factual disputes in writ petitions if they can be resolved without the need for oral evidence.

Conclusion
The Supreme Court dismissed the appeals, holding that the acquisition process was legal, actual possession was taken by the Collector, and the State could not withdraw the acquisition under Section 48. The court also upheld the compensation awarded and affirmed the High Court's jurisdiction to determine disputed facts. The appeals were dismissed with costs assessed at Rs. 50,000/- each.

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