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2011 (2) UAD 169
SUPREME COURT OF INDIA
G.S. Singhvi and Asok Kmar Ganguly
Civil Appeal No. 3604 of 2011
BANDA DEVELOPMENT AUTHORITY, BANDA – Appellant
Versus
MOTI LAL AGARWAL & ORS. – Respondents
Decided on : 26.04.2011
(B) Civil Procedure Code, 1908, Or. 21, Rules 35, 36, 95, 96 and Land Acquisition Act, 1894, Secs. 17(1), (4), 9(1), 47 — Provisions contained in — Held that even the delivery of so called "symbolical" possession is delivery of "actual" possession of the right, title and interest of the judgment-debtor — And that if the property is land over which there is no building or structure, then delivery of possession over the judgment-debtor's property becomes complete and effective against him the moment the delivery is effected by going upon the land. (Paras 27 to 33)
(C) Land Acquisition Act, 1894, Secs. 17, 9(1) — Taking possession of the acquired land — Principles — (i) No hard and fast rule can be laid down as to what act would constitute taking of possession of the acquired land — (ii) If the acquired land is vacant, the act of the concerned State authority to go to the spot and prepare a panchnama will ordinarily be treated as sufficient to constitute taking of possession — (iii) If crop is standing on the acquired land or building/structure exists, mere going on the spot by the concerned authority will, by itself, be not sufficient for taking possession — Ordinarily, in such cases, the concerned authority will have to give notice to the occupier of the building/structure or the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchnamas — Of course, refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken — (iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures on such documents — (v) If beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3A) and substantial portion of the acquired land has been utilized in furtherance of the particular public purpose, then the Court may reasonably presume that possession of the acquired land has been taken. (Para 34)
¼v½ Hkkjrh; lafo/kku] 1950] vuqPNsn 226 & ds vUrxZr fjV ;kfpdk nk;j dh xbZ & ;g lR; gS fd fjV ;kfpdk vuqPNsn 226 ds rgr nk;j djus gsrq dksbZ fyfeVs'ku fu/kkZfjr ugha dh xbZ Fkh ijUrq lHkh fu;eksa esa tks ,d fu;e mPprj U;k;ky; }kjk ekuk tkrk gS Lo;a dks izfrcaf/kr djus dk ykxw fd;k x;k gS] ;g gS] fd mPp U;k;ky; }kjk yEch vof/k O;rhr gks tkus ds ckn nk;j fjV ;kfpdk ij fopkj ugha fd;k tk,xk D;ksafd ml ls i{kdkjksa ds 'kfer vFkok fNé fHké fgr cqjh rjg ls izHkkfor gks ldrs gSa & ;fn ml fyfeVs'ku dh vof/k ds ckn fjV ;kfpdk nk;j dh tkrh gS tks fd mlh okn ds dkj.k gsrq nhokuh okn nk;j djus gsrq fu/kkZfjr gS] rks mPp U;k;ky; ml foyEc dks vuqfpr ekusxk vkSj ;kph dh f'kdk;r dks xq.knks"k ds vk/kkj ij lquus ls cpsxkA ¼izLrj 16½ ¼c½ nhokuh izfØ;k lafgrk] 1908] vkns'k 21] fu;e 35] 36] 95] 96 vkSj Hkwfe vfèkxzg.k vf/kfu;e] 1894] /kkjk 17¼1½¼4½] 9¼1½] 47 ds vUrxZr fufgr izkfo/kku & fu.kZ; esa dgk x;k fd ladsrkRed dgs tkus okys dCts dk iznku fd;k tkuk Hkh fuf.kZr iw.kZ vf/kdkj dk LokfeRo vkSj Hkkx dk okLrfod :i ls iznku fd;k x;k ekuk tkrk gS & vkSj ;fn lEifÙk ,slh Hkwfe gS ftl ij dksbZ edku vFkok <+kapk ugha cuk gS rks fuf.kZr _.kh dh lEifÙk ij dCts dk iznku gksuk iw.kZ gks tkrk gS vkSj tks mlds fo#) ml le; izHkkoh gksrk gS tSls fd Hkwfe ij tkrs gh dCtk iznku fd;k tkrk gSA ¼izLrj 27 ls 33½ ¼l½ Hkwfe vf/kxzg.k vf/kfu;e] 1894] /kkjk 17] 9¼1½ & vf/kxzfgr Hkwfe dk dCt+k fy;s tkus ds fl)kUr & (i) dksbZ fuf'pr fu;e ,slk ugha cuk;k tk ldrk fd vfèkxzfgr Hkwfe dk dCtk ysus gsrq D;k dk;Zokgh vey esa ykbZ tk, & (ii) ;fn ok¡fNr Hkwfe [kkyh iM+h gS rks lEcfU/kr izkf/kdj.k@jkT; vf/kdkjh dk dk;Z ;g gksxk fd og ;Fkk LFkku ij tk, vkSj ,d iapukek rS;kj djs tks lk/kkj.kr;k dCtk ysus gsrq i;kZIr ekuk tkrk gS & (iii) ;fn vf/kxzfgr Hkwfe ij Qly [kM+h gks vFkok dksbZ Hkou ;k <+k¡pk fo|eku gks rks lEcfU/kr vf/kdkjh }kjk ogha tkus ek= ls Lor% gh dCtk ysus gsrq i;kZIr ugha gksxk & lkekU;r;k ,sls ekeyksa esa lEcfU/kr izkf/kdj.k }kjk dCtsnkj dks uksfVl] Hkou@<+kaps ds lEcU/k esa] fn;k tk,xk vFkok ml O;fDr dks ftl ds }kjk Hkwfe tksrh tk jgh gS vkSj Lora= lkf{k;ksa dh mifLFkfr esa dCtk fy;k tk,xk vkSj iapukes ij muds gLrk{kj djk;s tk;saxs & okLro esa Hkwfe vFkok Hkou@<+kaps ds ekfyd }kjk badkj fd;s tkus ls ;g vFkZ ugha fudkyk tk,xk fd vf/kxzfgr Hkwfe dk dCtk ugha fy;k x;k gS & (iv) ;fn Hkwfe ds cM+s Hkkx dk vf/kxzg.k gS rks vf/kxzg.k djus okys izkf/kdj.k }kjk izR;sd Hkwfenkj ls dCtk fy;k tkuk laHko ugha gks ldsxk & vkSj ladsrkRed dCtk fy;k tkuk gh i;kZIr gksxk tks Lora= lkf{k;ksa dh mifLFkfr esa mfpr nLrkost rS;kj djds vkSj ml ij muds gLrk{kj djk;s tk,axs & (v) ;fn vf/kxzg.k dk ykHkkFkhZ dksbZ ,tsUlh] jkT; ljdkj ds ek/;e ls gS vkSj dqy izfrdj dk 80 izfr'kr /kkjk 17(3A) ds vUrxZr tek dj fn;k tkrk gS vkSj vf/kxzfgr Hkwfe dk vf/kd Hkkx fdlh [kkl yksd fgr ds fodkl ds fy, iz;qDr fd;k tkrk gS rc U;k;ky; }kjk ;g eku fy;k tk,xk fd vf/kxzfgr Hkwfe dk dCtk fy;k tk pqdk FkkA ¼izLrj 34½
G.S. Singhvi, J. — Leave granted.
2. The question which arises for consideration in this appeal is whether the Division Bench of the Allahabad High Court was justified in entertaining and allowing the writ petition filed by respondent No. 1 Moti Lal Agarwal in 2008 for nullifying the acquisition of his land by the State Government vide notification dated 8.9.1998 issued under Section 4(1) read with Section 17(1) and 17(4) of the Land Acquisition Act, 1894 (for short, “the Act”) which was followed by declaration dated 7.9.1999 issued under Section 6(1) read with Section 17(1) on the ground of non passing of award within the time prescribed under Section 11A.
3. By the notifications referred in the preceding paragraph, the State Government acquired 103 bighas land situated in Ladakapurwa and Bhawanipur villages, Pargana and District Banda for Tulsi Nagar Residential Scheme of the Banda Development Authority (for short, “the BDA”). Both the notifications were published in the manner prescribed under Sections 4(1) and 6(2) respectively.
4. On 5.6.2000, the Secretary of the BDA deposited Rs. 63,47,855.07 towards 80% of the compensation payable in lieu of the acquisition of 103 bighas land. This was in compliance of the mandate of Section 17(3A). The concerned authorities of the State delivered possession of the acquired land to the BDA on 30.6.2001. The officers of the Revenue Department visited the site on 4.9.2001 and prepared the Field Book, copy of which has been produced before this Court along with affidavit dated 19.1.2011 of Shri Biri Singh, Executive Engineer, BDA. The Special Land Acquisition Officer passed award dated 14.6.2002 for the acquired land including plot No. 795 of which 56 bighas 5 biswas was purchased by respondent No. 1 vide registered sale deed dated 4.10.1982.
5. In the meanwhile, the BDA prepared lay out for the acquired land which was sanctioned by its Board on 8.5.2002. Thereafter, the land was developed in a phased manner and plots were carved out for economically weaker sections and LIG, MIG and HIG categories. The BDA also constructed flats for economically weaker sections and those belonging to lower income group. The plots and flats were allotted to the eligible persons who had applied in response to different advertisements issued by the BDA between 2.11.2002 and 26.4.2006.
6. After more than three years of publication of the declaration issued under Section 6(1), respondent No. 1 filed suit being O.S. No. 52 of 2003 in the Court of Civil Judge (Senior Division), Banda, and prayed that the defendants be directed to start the acquisition proceedings afresh and disburse compensation after sub-dividing and numbering plot No. 795 in accordance with paragraph 63 of the Land Record Manual. The suit was dismissed on 1.9.2007 in view of the bar contained in the Uttar Pradesh Zamindari Abolition and Land Reforms Act and the Land Acquisition Act. Respondent No. 1 challenged the order of the trial Court in First Appeal No. 364 of 2007 but withdrew the same by stating that the writ petition filed by him was pending.
7. In the writ petition filed by him on 24.3.2008, respondent No. 1 challenged notifications dated 8.9.1998 and 7.9.1999 mainly on the ground that the acquisition proceedings will be deemed to have lapsed because the award was not passed within two years from the date of last publication of the declaration issued under Section 6(1). Respondent No. 1 pleaded that though plot No. 795 had not been sub-divided and demarcated and physical possession thereof was not taken, the concerned authorities prepared Kabja Hastantaran Praman Patra dated 30.6.2001 and thereby took paper possession of his land. He also claimed that plot No. 795/3 owned by him had not been notified, but the concerned authorities colluded with Smt. Shashi Devi and other interested persons and reflected him as tenure holder of that plot.
8. The thrust of the affidavits filed by Shri Mam Chand, Executive Engineer and Shri Har
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