T. N. Housing Board vs A. Viswam - 1996 Supreme(SC) 331

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1996 Supreme(SC) 331

1996(2) SUPREME 385
SUPREME COURT OF INDIA
K. Ramaswamy and G.B. Pattanaik, JJ.
Tamil Nadu Housing Board -Appellant
versus
A Viswam (Dead) by LR s -Respondents
Civil Appeal Nos. 3617-18 of 1996
(Arising out of SLP (C) Nos. 378-378A of 1996)
Decided on 9-2-1996
Counsel for the Parties :
For the Appellant : Shri Harish Salve Sr. Advocate.
For the Respondents : R.F. Nariman, Sr. Advocate, S. Sivasubramaniam, Sr. Advocate.

Headnote:Land Acquisition Act, 1894-Sections 4(1), 6 and 16-Acquisition of land for housing-LAO taking possession-Giving to appellant Housing Board-Disputed land was for park-Given to Municipal Corporation-Suit for Permanent Injunction to restrain Municipal Corporation-LAO or Govt. not made party-Trial Court dismissed-District Judge on first appeal reversed-Upheld by High Court-Appeal to Supreme Court by special leave-Contention that two courts recorded finding that respondents were in possession of disputed land so injunction was rightly given to protect their possession-Whether based on legally acceptable premise? (No)-Whether District and High Courts were right in granting injunction ? (No)-Appeal allowed.
       Held : It is settled law by series of judgments of this Court that one of the accepted modes of taking possession of the acquired land is recording of a memorandum or Panchnama by the LAO in the presence of witnesses singed by him/them and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. It is common knowledge that in some cases the owner/interested person may not co-operate in taking possession of the land. (Para 9)
       Held them that from the facts in this case, it would be clear that possession must have been taken of the land consisting of 339 acres including 1.33 acres in survey No. 140/4. (Para 11)
       The single Judge has not adverted to these material facts and the circumstantial evidence available from the estabalished facts. He proceeded to consider on the premise that since the acquired land was not used for building purpose and possession was not taken, acquisition stood lapsed. Equally erroneous is the reasoning given by the District Judge. The High Court is wholly illegal in its conclusion. The District Judge proceeded on the premises that the revenue records do not show the name of the appellant mutated and the land was not registered in the name of the appellant. These circumstances are wholly illegal and unjustified. Section 12(3) of the Act itself exempts registration of the land acquired under the Act. The District Judge had obviously ignored the statutory provisions. It was unnecessary for the Housing Board to have the lands mutated in the revenue records and have its name entered therein. It was not for its purpose. It was for public purpose, i.e., for construction of the houses and allotment thereof the needy persons. After the construction of the houses, the public park stood vested in the acquisition. Obviously, at this stage the Municipality would have come to take possession exercising its jurisdiction when illegal encroachment was found on the land. At this stage, notice was given to the respondents and the respondents filed the suit for perpetual injunction. (Para 11)
       Held finally : Thus considered, we are of the view that grave error of law was committed by the High Court in confirming the decree of the appellate Court. Accrodingly, the decrees and judgments of the first appellate Court and the High Court stand set aside and that of the trial Judge stands restored. (Para 13)

ORDER

Leave granted.

2. These appeals by special leave arise from the judgment and decree of the High Court of Madras made on April 7, 1994 in S.A. No. 1526 of 1988. The facts are not in dispute.

3. Notification under Section 4(1) of the Land Acquisition Act, 1894 (Act of 1894) (for short, the "Act") was published on September 17, 1958 acquiring a large extent of 339 acres of land comprising Kodambakkam and Pudoor villages known as "Part I Neighourhood Scheme" and renamed as "Ashok Nagar Scheme" of Madras City for planned development. Declaration under Section 6 was published on November 26, 1958. The Land Acquisition Officer made his award under Section 11 on February 28, 1966. It is the case of the appellant that the Land Acquisition Officer had taken possession of the land on February 28, 1966 and delivered possession to the appellant on March 21, 1966. It is not in dispute that under the Scheme as many as 3639 residential houses have been constructed and delivered possession of. The disputed land in an extent of one acre and thirty two cents is set apart for public park in the Scheme which stood vested in the Municipality.

4. It is the case of the respondent that he is the owner of the land having title to and possession of the same for over 30 years preceding the date of filing of the suit, viz., April 19, 1984 and the appellant was sought to interdict his possession and enjoyment. Consequentially, he filed the suit for perpetual injunction against the appellant. Admittedly, he was a servant of the Apparao Mudaliar. The trial Court dismissed the suit. On appeal, the City Civil Judge decreed the suit and High Court confirmed the same. Thus these appeals by special leave.

5. It is contended by Mr. R.F. Nariman, learned senior counsel appearing for the respondents, that in a mere suit for injunction though incidentally founded on title, the courts are require to record a finding whether the respondents were in possession of the land as on the date of the suit and if finding of being in possession is recorded then they are entitled to perpetual injunction against everyone except the true owner. In this case, all the three courts concurrently found as a fact that the respondents were in possession of the land as on the date of the suit. The appellant had not proved that possession was taken by the Land Acquisition Officer from the respondents. Thereby the right, title and interest held by the respondents was not divested by operation of Section 16 of the Act. Therefore, the respondents continue to remain to be the lawful owner. Accordingly, they are entitled to injunction against everyone including the appellant-Board. In support of his contention, he placed strong reliance on Balwant Narayan Bhagde v. M.D. Bhagwat & Ors.1

6. The question is : whether the premise on which the learned counsel has projected the case is based on legally acceptable legal premise? It is true that when the High Court has, as a pure appreciation of evidence, considered and recorded as a fact a finding on possession, normally this Court would accept such finding and proceed on that premise to decide substantial question of law of public importance, exercising the power under Article 136. As stated earlier, whether the High Court has proceeded on that premise is the question. With due respect, the learned Judge has proceeded in recording a fact without adverting to operation of relevant provisions of the Act, failed to draw legal inferences from admitted or proved facts and had wrongly drawn the inference that the acquisition stood lapsed which constitute patent error giving rise to substantial question of law. It is an admitted fact that the land was acquired under the Act after due publication of the declaration under Section 6. As rightly contended by Mr. S. Sivasubramaniam, learned senior counsel appearing for some of the respondents, conclusiveness of the public purpose stands established. Thereafter, procedure prescribed in Chapter III of the Ac

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1996 Supreme(SC) 331

Cases Referred (1)