Pawan Kumar And Others vs State Of U.P. And Others
2023 Latest Caselaw 16897 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                Neutral Citation No. - 2023:AHC:120070-DB  
 
						AFR
 
						Reserved on: 12.05.2023
 
					         Delivered on:  29.05.2023
 
Court No. - 39
 

 
Case :- WRIT - C No. - 67047 of 2006
 
Petitioner :- Pawan Kumar And Others
 
Respondent :- State of U.P. and Others
 
Counsel for Petitioner :- A.D. Saunders, Akhilesh Tripathi,Anoop Trivedi
 
Counsel for Respondent :- C.S.C.,Akhileshwar Singh,Anuj Srivastava,Varad Nath
 

 
Hon'ble Salil Kumar Rai, J.

Hon'ble Arun Kumar Singh Deshwal,J.

(Delivered by Hon'ble Arun Kumar Singh Deshwal, J.)

1. Heard Sri Akhilesh Tripathi, learned counsel for the petitioners, learned Standing Counsel representing the State- respondent, Sri H.N. Singh, learned Senior Advocate assisted by Sri Anuj Srivastava, learned counsel representing the Uttar Pradesh State Industrial Development Corporation Ltd. (hereinafter referred to as the U.P.S.I.D.C.) and Sri Amit Saxena, learned Senior Counsel assisted by Sri Varad Nath, learned counsel for the respondent no.5.

2. Present writ petition has been filed by the petitioners for quashing the order dated 14.09.2006 passed by the respondent no.1 by which application of petitioner to de-notify his acquired land in Gata No. 37, 39 and 41 total area 4.45 acre situated at Village Alipur Bhood Shamli, Gajraula, District J.P. Nagar was rejected on the ground that the possession of the land has already been taken in the year 1976 as well as the petitioners further seeking direction to respondent to denotify the aforesaid Gata No. 37, 39 and 41.

The factual matrix of the case is as follows:-

3 (a). The petitioners were the tenure holder of Plot No.37, 39 and 41 of area 4.45 acre situated in Village Alipur Bhood Shamli, Gajraula, District- J.P. Nagar.

3(b). State Government issued a notification dated 14.10.1976 under Section 4(1) of Land Acquisition Act, 1894 (hereinafter referred to as the 'Act, 1894') and also invoked urgency clause Section 17(1) of the 'Act, 1894'. By this notification, apart from the other land, portion of the land in Gata No.37, 39 and 41 area 4.45 acre was also proposed to be acquired. This notification was followed by another notification dated 15.10.1976 under Section 6 of 'Act, 1894'. The award in the aforesaid notification was also declared on 07.05.1989. The present petitioners also received the compensation as declared by award dated 07.05.1985. Thereafter UPSIDC, who was the beneficiary of the aforesaid notification has also challenged the award dated 07.05.1985 before this Court through Writ Petition No.18453 of 1986 on the ground that before passing the award dated 07.05.1985, UPSIDC was not heard. The aforesaid writ petition was allowed vide dated 06.11.2009 and the award dated 07.05.1985 was quashed and a direction was made to pass the fresh award. Thereafter in pursuance of the order dated 06.11.2009 passed in Writ Petition No. 18453 of 1986 a fresh award was passed on 07.10.2010 by which the amount of compensation was reduced. It is also pertinent to mention here that the order dated 06.11.2009 passed in Writ Petition No.18456 of 1986 as well as fresh award dated 07.10.2010 were passed during the pendency of present writ petition.

3(c). The acquired land, in pursuance of the notification dated 15.10.1976 including the acquired land of the petitioners, was allotted to M/s Sivallik Cellulose Ltd. Company through lease deed dated 20.11.1976 and 02.03.1977. Thereafter impleadment application dated 02.04.2019 was filed by the M/s Sivallik Cellulose Ltd. to implead it as respondent no.5 which was allowed by this Court vide order dated 01.05.2019 and was permitted to be impleaded as respondent no.5. Thereafter counter affidavit was also filed on behalf of the respondent no.5.

4. Contention of learned counsel for the petitioners is that possession of their acquired land was not taken by the respondents and they are still in possession over that land. State has not produced any evidence despite order dated 12.09.2017 of this Court, showing that possession was taken from him. The contention regarding the possession of the petitioners over his acquired land in Plot No.37, 39, 41 is based on the report dated 21.01.2006 of District Magistrate, Jyotiba Phule Nagar. Report dated 21.01.2006 of District Magistrate, Jyotiba Phule Nagar shows that Gata No.37, 39, 41 are situated in boundary wall and major part of this land is laying vacant except Gata No.39 in which 12 rooms were found. It appears that above report dated 21.01.2006 was submitted by the District Magistrate, Jyotiba Phule Nagar to Government of U.P. in pursuance of order dated 16.09.2005 of this Court passed in Writ Petition No. 61564 of 2015 on receiving the representation dated 31.05.2003 of petitioner to denotify his land on the ground that possession was not taken from him.

5. After receiving the report dated 21.01.2006 of District Magistrate, J.P. Nagar representation of the petitioner dated 31.05.2003 was rejected by the impugned order dated 14.09.2006 on the ground that possession has already been taken by the petitioners in the year 1976.

6. In the counter affidavit filed on behalf of the respondent nos.1 and 2, it was stated that possession of the entire acquired land including the land of the petitioners in pursuance of the notification dated 15.10.1976 was taken over under Section 9 of the 'Act, 1894' on 08.07.1976 and compensation has already been paid in pursuance of the award, therefore the land has been vested in the State and no question of de-notification under Section 48 of the 'Act, 1894' arises and after taking the aforesaid possession of the land same was handed over to M/S Sivallika Cellulose Ltd. (respondent no.4) because the same was allotted to that company by UPSIDC. M/s Shiwalika Cellulose Ltd. (respondent no.4) had established paper mill on the aforesaid acquired land allotted by the U.P.S.I.D.C.

7. Respondent no.5 had also filed counter affidavit and in its counter affidavit, it was contended that the acquired land was leased out to respondent no.4 for 90 years through two different lease deeds dated 20.10.1976 and 02.03.1977 and possession of the entire industrial plot (acquired land) of an area 34.76 acres was handed over by U.P.S.I.D.C. to respondent no.5 on 08.07.1976 and after taking the possession of the allotted land, it has constructed boundary wall and made several other constructions inside therein and established factory in June, 1979. It was further stated that report dated 21.06.2006 of the District Magistrate itself contrary to possession certificate and lease deeds executed in favour of respondent no.5 by the U.P.S.I.D.C. and it was lastly contended by respondent no.5 that acquisition proceeding has become final and it cannot be challenged after the substantial delay.

8. In support of his case, counsel for the respondent no.5 has relied upon the following judgements.

(i) 2010(4) SCC 532 (Sawaran Lata and others vs State of Haryana and others);

(ii) MANU/SC/0795/2008 (Swaika Properties Pvt. Ltd. and others vs State of Rajasthan and ors.)

(iii) MANU /UP/1457/2020 (Kamal Singh and ors vs State of U.P. and ors);

(iv) 2018 (5) ADJ 297 (Dinesh Kumar and others vs. State of U.P. and others)

(v) AIR 2011 SC 3558 (A.P. Industrial Infrastructure Corporation Ltd. Vs Chinthamaneni Narasimha Rao and Ors).

(vi) AIR 1974 SC 2077 (Aflatoon and others vs. Lt. Governor of Delhi and other)

9. It is further submitted that once the acquired land is vested in State by taking the possession of the same, then same cannot be divested. Therefore, the same cannot be de-notified under Section 48 of the Act, 1894. In support of his contention, he relied upon the judgement of Mahaveer vs. State of U.P. and others reported in 2018(6) ADJ 529.

10. Learned counsel for the respondents also contended that large chunk of land is acquired then the State agency is not required to keep police force to protect possession of the land taken after process of acquisition is completed and in support of his submission, learned counsel for the respondents relied upon the judgment of Land and Building Department through Secretary and others vs Attro Devi and others reported in Manu/SC/0621/2023.

11. After considering the rival arguments as well as on perusal of record, the sole question that arises here for consideration is whether the possession of the acquired land of the petitioner was taken by the State or not.

12. From the record, it is clearly established that notification under Sections 4 and 6 of the 'Act, 1894' issued on 14.10.1976 and 15.10.1976 respectively and in pursuance of the above notification, possession of the land was taken by the State on 08.07.1976 and on the same date, the same was handed over to U.P.S.I.D.C. for developing industrial plot. From possession letter dated 08.07.1976 produced by the State, it is established that the possession of the land was taken on 08.07.1976 and the possession letter dated 08.07.1976 is sufficient proof of possession as per Section 114(3) of Evidence Act because same was duly executed in the discharge of official duty and after taking possession of the same, the entire acquired land including the land of the present petitioner having total area 34.76 acres was leased out/ allotted to respondent no.5 through lease deeds dated 20.10.1976 and 02.03.1977. It is also undisputed that after taking possession of the acquired land of an area 34.76 acres, respondent no.4 constructed boundary wall and established a factory over the allotted land. It is admitted case of the petitioners that they have also obtained compensation in pursuance of the award dated 07.05.1985. Though subsequently the award dated 07.05.1985 was quashed by this Court on 06.11.2009 in the Writ Petition No. 18453 of 1986 filed by the U.P.S.I.D.C. on technical ground during the pendency of the present writ petition and thereafter fresh award was also made but this fact will not give any benefit to the present petitioners as question herein is possession of land in dispute.

13. Although on the one hand, State has established by producing the possession certificate dated 08.07.1976 that possession of the land was taken but on the other hand petitioner could not dispute the above certificate by producing any evidence that possession was not taken from them on 08.07.1976. In the report dated 21.01.2006, it is mentioned that acquired land of petitioners is situated inside the boundary wall of respondent no.5.

14. Hon'ble Supreme Court in the case of Indore Development Authority vs Manohar Lal and others reported in 2020(8) SCC 129, wherein it clearly observed in paragraph 366.7 that mode of taking possession under 'Act, 1894' is by drawing inquest report/ memorandum. Once the award has been passed on taking possession under Section 16 of Act, 1894 the land vests in the State and there is no divesting the same. Once the land is vested in the State after taking possession of the same, then subsequent possession on the part of original tenure holder is illegal and same cannot be taken into account. The relevant paragraph nos. 247 and 258 are quoted herein below;

"247. The question which arises whether there is any difference between taking possession under the Act of 1894 and the expression "physical possession" used in Section 24(2). As a matter of fact, what was contemplated under the Act of 1894, by taking the possession meant only physical possession of the land. Taking over the possession under the Act of 2013 always amounted to taking over physical possession of the land. When the State Government acquires land and drawns up a memorandum of taking possession, that amounts to taking the physical possession of the land. On the large chunk of property or otherwise which is acquired, the Government is not supposed to put some other person or the police force in possession to retain it and start cultivating it till the land is used by it for the purpose for which it has been acquired. The Government is not supposed to start residing or to physically occupy it once possession has been taken by drawing the inquest proceedings for obtaining possession thereof. Thereafter, if any further retaining of land or any re-entry is made on the land or someone starts cultivation on the open land or starts residing in the outhouse, etc., is deemed to be the trespasser on land which in possession of the State. The possession of trespasser always insures for the benefit of the real owner that is the State Government in the case.

258. Thus, it is apparent that vesting is with possession and the statute has provided under Sections 16 and 17 of the Act of 1894 that once possession is taken, absolute vesting occurred. It is an indefeasible right and vesting is with possession thereafter. The vesting specified under section 16, takes place after various steps, such as, notification under section 4, declaration under section 6, notice under section 9, award under section 11 and then possession. The statutory provision of vesting of property absolutely free from all encumbrances has to be accorded full effect. Not only the possession vests in the State but all other encumbrances are also removed forthwith. The title of the landholder ceases and the state becomes the absolute owner and in possession of the property. Thereafter there is no control of the land- owner over the property. He cannot have any animus to take the property and to control it. Even if he has retained the possession or otherwise trespassed upon it after possession has been taken by the State, he is a trespasser and such possession of trespasser ensures for his benefit and on behalf of the owner of contemplate divesting of the property from the State as mentioned above."

15. Similarly, in the case of Banda Development Authority, Banda vs Moti Lal Agarwal reported in 2011 AIR SCW 2835, it was observed in paragraphs 34 and 35 that no hard and fast rule can be laid down as to what act would constitute taking possession of the acquired land and if the acquired land is vacant, the concerned State authorities to go to the spot and prepare a Panchnama showing delivery of possession was sufficient for recording of finding that actual possession of the entire land had been taken. Utilisation of major portion of the acquired land for the public purpose for which it was acquired, is clearly indicative of fact that actual possession of the acquired land had been taken.

16. Paragraphs 34 and 35 of the Banda Devleopment Authority (supra) case are being quoted hereinbelow;

"34. The principles which can be culled out from the above noted judgments are:

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 panchnama. 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 document.

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 utilised in furtherance of the particular public purpose, then the Court may reasonably presume that possession of the acquired land has been taken.

35. In the light of the above discussion, we hold that the action of the concerned State authorities to go to the spot and prepare panchnama showing delivery of possession was sufficient for recording a finding that actual possession of the entire acquired land had been taken and handed over to the BDA. The utilization of the major portion of the acquired land for the  public purpose for which it was acquired is clearly indicative of the fact that actual possession of the acquired land had been taken by the BDA."

17. Similarly, in Balwant Narayan Bhagde vs M.D., Bhagwat reported in 1976(1) SCC 700; wherein Court observed in para 28 that the act of Tehsildar in going on the spot and inspecting the land was sufficient to constitute taking of possession. Thereafter it would be open to the government or commissioner to withdraw from acquisition under Section 48-A of the 'Act 1894'. The para 28 of the aforesaid judgement is quoted hereinbelow;

"28 HAGWATI, J. (concurring) (for himself and Gupta, J.)- We agree with the conclusion reached by our brother Untwalia, J., as also with the reasoning on which the conclusion is based. But we are writing a separate judgment as we feel that the discussion in the judgment of our learned brother Untwalia, J., in regard to delivery of 'symbolical' and 'actual' possession under rules 35, 36, 95 and 96 of Order XXI of the Code of Civil Procedure, is not necessary for the disposal of the present appeals and we do not wish to subscribe to what has been said by our learned brother Untwalia, J., in that connection, nor do we wish to express our assent with the discussion' of the various authorities made by him in his judgment. We think it is enough to state that when the Government proceeds to take possession of the land acquired by it under the Land Acquistition 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 ]And in the Government is the taking of actual possession of the land. How such possession may be taken would depend on the natureof the land. Such possession would have to be taken as the natureof the land admits of. There can be no hard and fast rule laying down what act would be sufficient to constitute taking of possession of land. We should not, therefore, be taken as laying down an absolute and inviolable rule that merely going on the 'pot and making a declaration by beat of drum or otherwise would be sufficient to constitute taking of possession of land in every case. But here, in our opinion, since the land was laying fallow and there was no crop on it at the material time, the act of the Tehsildar in going on the spot and inspecting the land for the purpose of determining what part was waste and arable and should, therefore, be taken possession of and determining its extent, was sufficient to constitute taking of possession. It appears that the appellant was not present when this was done by the Tehsildar, but the presence of the owner or the occupant of the land is not necessary to effectuate the taking of possession. It is also not strictly necessary as a matter of legal requirement that notice should be given to the owner or the occupant of the land that possession would be taken at a particular time, though it may be desirable where possible, to give such notice before possession is taken by the authorities, as that would eliminate the possibility of any fraudulent or collusive transaction of taking of mere paper possession, without the occupant or the owner ever coming to know of it."

18. In the present case, possession of the acquired land was taken in 1976 as per existing procedure which was also approved by Hon'ble Supreme Court. Therefore, in view of above legal position, the possession of the acquired land of the petitioner was taken on 08.07.1976 supported by possession certificate and thereafter boundary wall was constructed by respondent no.5 and established the factory on the major part of the acquired land, clearly proof that possession of the acquired land was taken and the same was also utilised by the beneficiary. Even report of D.M., J.P. Nagar dated 21.01.2006 as well as report dated 24.10.2017 of S.L.A.O. annexed as Annexure-I of compliance affidavit dated 14.12.2017 shows that acquired land of petitioner is inside the boundary wall of respondent no.5

19. In the present case, notification dated 15.10.1976 was not challenged while filing the present case and only prayer was made that application of the petitioners for denotifying his land under Section 48 of the Act, 1894 may be considered.

20. Section 48 of Act, 1894 itself does not give any right to original tenure holder to compel the State to withdraw from acquisition. This Section only enabling provision which enable the State to withdraw from acquisition when the acquired land was not taking into possession but in the present case, the State as well as respondent no.3 clearly stated that possession of the land was taken and the same was transferred to respondent no.5 for establishing a factory. Section 48 of the Land Acquisition Act, 1894 is quoted herein below;

"Section 48 Completion of acquisition not compulsory, but compensation to be awarded when not completed.-

(1) Except in the case provided for in section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken.

(2) Whenever the government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings thereunder, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land.

(3) The provisions of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this section."

21. The present petition is itself barred by serious laches because the petitioners have agitated the ground of possession in the year 2006 though the land was acquired in 1976 and possession was also taken in the year 1976 and subsequently leased out to respondent no.5 in the year 1976 and 1977.

22. In view of the fact, petitioner could not make out any case for the indulgence of this Court, therefore petition fails and is dismissed.

Order Date :- 29.05.2023

A.Kr.