2009 Supreme(SC) 1248

Supreme Court of India
THE HONOURABLE MR. JUSTICE S.B. SINHA & THE HONOURABLE MR. JUSTICE CYRIAC JOSEPH
National Thermal Power Corporation Ltd.
Versus
Mahesh Dutta & Others
CIVIL APPEAL NOS.6228-6229 OF 2002
Decided on : 16-07-2009

IMPORTANT POINTS
On possession of acquired land actually being taken, State cannot withdraw from the acquisition.
Whether actual possession has been taken depends upon facts and circumstances of each case.
High Court is not debarred from entering into disputed question of fact. If the question can be determined on the basis of documents and affidavits, High Court may not refuse to do so. It may also examine witnesses.
State is empowered to put the vested land for another public purpose.

Headnote:(a) Land Acquisition Act, 1894 – Section 48 – On possession of acquired land being taken, State cannot withdraw from the acquisition – However, the possession should be actual and not symbolic. (Para 18, 19)

       (b) Land Acquisition Act, 1894 – Section 17 – Whether actual possession has been taken is a question of fact – Depends upon facts and circumstances of each case. (Para 27)

       AIR 1975 SC 1967 : (1976) 1 SCC 70; (1998) 4 SCC 387; (2005) 12 SCC 489 – Relied upon

       (c) Land Acquisition Act, 1894 – Section 17 – Possession – Delivery of possession – Procedure – Order XXI Rule 35, CPC – Actual possession – U/s 17 vesting of land takes effect immediately – NTPC paying 80% of entire compensation – Contention that possession of only 10 acres land out of 65 could be taken cannot be accepted – (Para 29, 30)

       (1970) 2 SCC 149; (1993) 4 SCC 369; (1996) 3 SCC 1; (1996) 3 SCC 600; (1996) 8 SCC 259; (2005) 12 SCC 508; (2005) 11 SCC 493 – Relied upon

       (d) Constitution of India – Article 226 – Disputed questions of fact – High Court not debarred from entering into disputed question of fact – If the question can be determined on the basis of documents and affidavits, High Court may not refuse to do so – It may also examine witnesses. (Para 33)

       (1969) 3 SCC 769; (1974) 2 SCC 706; (2007) 9 SCC 255 – Relied upon

       (e) Land Acquisition Act, 1894 – Section 17(1) r/w section 114, Indian Evidence Act, 1872 – Possession certificate and other documents including judicial records showing possession having been taken over – Illustration (e) of section 114 applies – Presumption of actual possession arises – It is for the State to prove contra. (Para 35)

       (f) Constitution of India – Article 142 – Exercise of power – The Court cannot foresee all eventualities – However, the respondents categorically stating that none of them is in possession of acquired land – If it is found to be incorrect legal remedies are available for eviction &c. (Para 36)

       (g) Land Acquisition Act, 1894 – Section 17(1) – Land vesting in State – Land originally acquired for thermal power plant – Power plant shifted – State empowered to put the vested land for another public purpose. (Para 38)

       (2007) 9 SCC 255; (2003) 1 SCC 335; (2007) 5 SCC 231 – Relied upon

       Facts of the case:

       A Notification was published in the Official Gazette on 8th September, 1984 notifying the intention of State to acquire 105 Bighas 2 Biswas and 16 Biswanis (equivalent to 65.7125 acres) of lands.

       The emergency provisions of Sections 17(1) and 17(4) of the Act were invoked. A declaration in terms of Section 6 of the Act was issued on 26th September, 1984. Notices were issued on 27th October, 1984 under Section 9 to the claimants for payment of compensation in respect of the acquired land.

       Prior to taking over possession of land under the emergency powers, the Collector disbursed 80% of the amount of compensation determined. A possession certificate was issued by the Collector on 16th January, 1984

       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.

       An Award was made on 24th September, 1986.

       On a reference in terms of Section 18 the amount of compensation @ Rs.155/- per sq. yards and Rs.115/-per sq. yds. in respect of two references was determined. .

       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.

       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.

       Indisputably on the same day, the same Bench passed judgment in the First Appeals preferred by appellant (NTPC) against the order of the Reference Court dated 22nd October, 1993.

       Finding of the Court:

       There is no infirmity in the impugned judgment.

       Result:

       Appeal dismissed with cost.