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TMI Blog1982 (11) TMI 178X X X X Extracts X X X X X X X X Extracts X X X X ..... of Kerala and the 2nd Respondent, the Assistant Collector and Land Acquisition Officer, Ottapalam, Palghat. The land involved lies in Sy. Nos. 27/3, 26/4, 27/5, 28/3 and 28/7 in Ottapalam II Village in Palghat District, the total extent of which is 7.63.16 hectares. There was a partition in this tavazhi. Portions of the land were allotted to the daughters and grandchildren of the 1st Petitioner. A notification under Section 3 of the Act was published in the Kerala Gazette dated 1st May 1979 proposing to acquire the lands for the public purpose of implementing the Ottapalam Housing Accommodation Scheme by the Kerala State Housing Board. The Housing Board requested the Land Acquisition Officer to take advance possession of the land. Accordingly the Land Acquisition Officer obtained possession from the various allottees on 21st May 1979 through the Revenue Inspector attached to the Office of the Special Tahsildar for the Kerala State Housing Board. Ext. P-1 is the true copy of the record given by the first Petitioner to the Special Revenue Inspector evidencing surrender of possession. Similar records were given by the other members of the tavazhi in respect of the lands allotted to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s passed in view of the high amount of compensation fixed by the Land Acquisition Collector. The amount shown in the award is far more than the value of the properties demanded by the 1st Petitioner and her husband at the time of making the offer. The original offer was ₹ 250 per cent while the compensation awarded was much higher. The Housing Board expressed certain misapprehension about the correctness of the valuation fixed in the award. The matter was considered in detail by the Revenue Department of the Government in consultation with the Housing Department and also the representatives of the Housing Board and it was decided that the Government should withdraw from the acquisition. There is no bar in withdrawing the acquisition since possession was not taken during the course of the acquisition proceedings. The decision to withdraw was taken bona-fide in public interest. Immediately after the withdrawal notification steps were taken to assess the damages payable to the owner of the land and it was fixed at ₹ 93,100.05. The demand for payment of interest does not arise since the Government had already withdrawn from the acquisition. 5. The question of law raised in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... survey numbers. We are not impressed with this case, for it is properly explained by the Respondents' counsel. In the award Ext. P-2, there is a note. Paragraph 1 deals with grounds of award. There it is stated that the Secretary, Kerala State Housing Board, Trivandrum, requested the District Collector, Palghat, to forward a requisition for the acquisition of 23 acres of land in Sy. No. 27/2-8. Lower down we find that Survey Nos. 27/1, 27/2-A and 27/2-B correspond to new subdivisions 27/3, 27/4 and 27/5. Therefore, the mention in Ext. P-1 of Survey Nos. 27/2-B, 27/1 and 27/2-A is of no consequence and nothing turns on that. Nor is the contention based on the extent acceptable for the reason that the Petitioner had clearly stated in the original Petition that the Petitioners as well as others who obtained the property by partition had given records similar to Ext. P-1 in respect of the lands allotted to them totalling 7.63.16 hectares. This case was not controverted in the counter-affidavit. From the judgment, it is evident that this was not disputed before the learned Judge either. Therefore, we proceed on the footing that the possession of the entire area had been surrendered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he operation of the various sections of the Act, it is necessary to consider the factual contention that possession was not given to the State. The learned Judge observes thus in paragraph 2 of the Judgment: 2. After Section 3 notice, the owners of the land were given advance possession which possession was accepted by Land Acquisition Officer. Though at the hearing I thought that the reasons for and circumstances in which advance possession was given by the owners may be of some significance in the matter, after going through the relevant files carefully, I do not think it will matter much because it is clear from Ext. P-1 itself that the taking over of possession was with the full concurrence of the Land Acquisition Officer and the Housing Board, Ext. P-1 is the copy of the record given to the 1st Petitioner regarding handing over of possession by the Special Revenue Inspector and it is attested by the Officer of the Housing Board and verified and counter signed by the Special Tahsildar, Land Acquisition (General), Palghat. It is specifically asserted by the Petitioner that similar records have been given in respect of the lands allotted to the share of the other members of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acquisition proceedings, for, the earlier notification was cancelled by the subsequent notification. This fact is of importance in this case for the decision of the question whether the withdrawal notification Ext. P-4 was validly passed or not. For a decision on this aspect of the case, it is necessary to consider the scheme of the Act. 11. Section 3(1) occurring in Part II of the Act deals with publication of preliminary notification and powers of officers there upon. Section 5 deals with hearing of objections by any person interested in any land notified under Section 3(1) as being needed or likely to be needed for public purpose. Section 6 deals with declaration that land is needed for a public purpose once the State is satisfied that it is so needed. Section 7 authorises the Government to direct the Collector to take order for the acquisition of the land, and Section 8 refers to marking out, measuring and planning the land. Section 9 gives an important right to the persons interested in the land sought to be acquired. Under Section 9 public notice shall be given at convenient places, stating that the Government intends to take possession of the land, and inviting claims to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Possession under the Land Acquisition Act of a land sought to be acquired can be taken by the Government either under Section 19 where it is a case of urgency on the expiration of 15 days from the date of publication of the notice mentioned in Sub-section (1) of Section 9 or under Section 18 when the Collector has made an award under Section 11 or Section 16. According to him, possession was not taken by the Land Acquisition Officer in this case. Possession was given by the owners of the land even prior to the notification under Section 3(1). This possession will not be taking possession under Section 52. That being so, according to him, Ext. P-4 notification is perfectly valid and cannot be called in question. The learned Judge answering this contention observed in paragraph 7 of his judgment as follows: 7. It is not disputed that possession was given by the Petitioner and the other owners of the land and records like Ext. P-1 have been given to them. It is also noted that the award was passed when the land was in the possession of the Land Acquisition Officer.... * * * Once the land has vested in the Government, free from all encumbrances there can be no question of going ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Airforce authorities. There were no materials before the Supreme Court to disclose the authority under which possession of the land was taken. After a series of correspondence a notification under Section 4 of the Land Acquisition Act (corresponding to Section 3 of the Kerala Act) was published on March 31, 1964, notifying that the land was likely to be needed by the State Government for a public purpose. By a composite notification under Section 6 and Section 17(1) and (4) dated May 16, 1974, the enquiry under Section 5-A of the Act was dispensed with, and it was declared that possession of the land would be taken after the expiry of 15 days from the publication of the notice under Section 9(1) of the Act. After the issuance of Section 9 notice, the Government of Himachal Pradesh cancelled the notification under Section 4 and Section 17 by an order dated October 5, 1965. The Respondent thereupon moved the Judicial Commissioner, Himachal Pradesh, for an appropriate writ, to quash the withdrawal notification and to direct the authorities to act in accordance with law in the matter of compensation etc. The Judicial Commissioner granted the prayers holding that the land vested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the award when alone the land would vest absolutely in the Government free from encumbrances. In this case, there is no document before court and in fact none exists to show that possession was taken pursuant to the award Ext. P-2. 15. Before the Supreme Court also, a contention was raised that possession was not taken under the Act since possession in that case was obtained by the State prior to Section 4 notification. This case did not find favour with the Supreme Court as is seen from the following: 4. In the present case a notification under Section 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 under Section 9(1), be deemed to be in the possession of the Government. We are unable to agree that where the Government has obtained possession illegally or under some unlawful transaction and a notification under Section 17(1) is issued the land does not vest in the Government free from all encumbrances. We are of the view that when a notification under Section 17(1) is issued, on the expiration of fifteen days from the publication of the notice mentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it of the land acquisition proceedings. So considered, it has to be held that the land had vested absolutely in the Government by Ext. P-2 award. In the Supreme Court case, the principle settled is that the earlier possession should be deemed to be possession taken under Section 17(1) whereupon the land vested in the Government. If, in that case, instead of the composite notification under Section 6 and Section 17, the possession taken before the initiation of the land acquisition proceedings had continued till the award was made, same result would have followed. There, the mere issuance of a notification under Section 17(1) was held to be sufficient to meet the requirement of law to evidence taking of possession while actually possession was not taken pursuant to that. Here the making of the award should be taken to evidence obtaining of possession since possession was already with the State. As a consequence the land vests in the Government. As observed by the Supreme Court "there is no provision by which land statutorily vested in the Government reverts to the original owner by mere cancellation of the notification". We therefore hold that the withdrawal notification v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the taking of possession was not in accordance with law and not on the strength of any agreement, it was held that the Petitioners who had been divested of possession were entitled to be put back in possession. We fail to understand how this case can help the Appellant. The facts are so dissimilar that the principle laid down in that decision is of little help to the Appellant. What is attempted is this. In that case there was an agreement before the land acquisition proceedings. Reference was made to Section 16 of the Act in the agreement. Possession was taken de hors the provisions of the Act. This Court directed possession to be restored. Support appears to be sought from this direction, to the case on hand, with the plea that possession taken before the initiation of the proceedings cannot enure for the purpose of Section 52 and such possession will not be possession taken under Section 18. This, according to us, is a farfetched assumption and cannot be accepted. 18. Respondent's counsel submits that the owners are entitled to interest at 12 per cent from the date of Ext. P-2. The learned Judge has awarded interest as claimed. This is assailed by the Additional Advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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