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TMI Blog2009 (7) TMI 1291X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 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. - S.B. SINHA AND CYRIAC JOSEPH JJ. UDGMENT 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. 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 Ghaz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 7. An Award was made on 24th 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 dated 22nd October, 1993 determining the amount of compensation @ ₹ 155/- per sq. yards and ₹ 115/- per sq. yds. in respect of two references made separately before it. 8. First appeals were preferred there against 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irectorate, Board of Revenue by the District Magistrate by his letter dated 11th August, 1994. NTPC issued a clarification to the Commissioner and Director, Board of Revenue, by its letter dated 13th August, 2004. On or about 18th 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. 11. On 11th 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 on or about 29th August, 1995 and a Division Bench of the High Court stayed the consequential effect of the Notification dated 11th November, 1994. On or about 9th September, 1997 the appellant filed an application for vacating the stay which having been refused, a Special Leave Petition was filed before this Court, which was dismissed by an order dated 14th October, 1997. By reason of a judgment and order dated 21st July, 1998 the said writ petition was allowed. 12. Indisputably on the same day, the same Bench passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication of the notice mentioned in section 9, sub-section (1), 1 [take possession of any waste or arable land needed for a public purpose]. Such land shall thereupon vest 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 under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellants relied upon documentary evidence and the only matter in respect of which conflict of facts may possibly 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 38. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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, woul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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