Baburao Kashinath Saratkar & 11 ... vs State Of Maharashtra &2 Others
2017 Latest Caselaw 5855 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH, NAGPUR


                         WRIT PETITION NO. 2002 OF 2000


1.     Baburao Kashinath Saratkar
       (dead) through L.Rs.

1-A. Sandeep Baburao Saratkar,
     aged 44 years, Occ. Teacher.

1-B. Rajesh Baburao Saratkar
     aged about 41 years, Occ. Service. 

       Both R/o. Near Gudadhe Patil's House,
       Jaitala, Tq. And Distt. Nagpur.

2.     Nanaji Kashinath Saratkar

3.     Sarjerao Kashinath Saratkar

4.     Shaligram Kasinath Saratkar
       (Petitioners 1 to 4 are Legal Heirs
       of late Kashinath Laxman Saratkar)

5.     Chinduji Bhiwaji Saratkar

6.     Vithoba Bhiwaji Saratkar

7.     Deorao Bhiwaji Saratkar
       (dead) through L.Rs.

7-A. Latabai Deoraoji Saratkar
     aged 52 years, Occ. Household,

7-B. Sandeep Deoraoji Saratkar
     aged 33 years, Occ. Service,

7-C. Dipak Deoraoji  Saratkar
     aged 28 years, Occ. Service,




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       All R/o. Near Gudadhe Patil's House,
       Jaitala, Tq. And Distt. Nagpur.

8.     Shankarrao Pundalik  Saratkar

9.     Bajirao Pundalik  Saratkar

10.    Manik Pundalik  Saratkar

11.    Damodhar Pundalik  Saratkar

12.    Nilesh Ramrao  Saratkar
       (L.Rs of late Ramrao Punkdalik
        Saratkar)

       All R/o. Near Gadadhe Patil's House,
       Jaitala, at Post : Jaitala, Tq. & Distt.
       Nagpur.                                                  ...PETITIONERS

       Versus

1.     State of Maharashtra, through its
       Urban Development Department,
       Mantralaya, Mumbai.

2.     Nagpur Improvement Trust,
       through its' Chairman, Station Road,
       Nagpur.

3.     Special Land Acquisition Officer,
       Nagpur Improvement Trust, Nagpur.

4.     Maharashtra State Airport Development
       Corporation, through its Managing Director,
       First Floor, Central Facility Building,
       Mihan SEZ, Khapri (Rly), Wardha Road,
       Nagpur.                                                  ...RESPONDENTS




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Shri Anand Parchure, Advocate for Petitioners.
Shri V.P. Maldhure, Assistant Government Pleader for Respondent No.1
Shri G.A. Kunte, Advocate for Respondent No.2 and 3
Shri S.Y. Deopujari, Advocate for Respondent No. 4

CORAM : R. K. DESHPANDE & MRS. SWAPNA JOSHI, JJ.

DATE OF RESERVINGUI THE JUDGMENT : 28TH JULY, 2017 DATE OF PRONOUNCING THE JUDGMENT : 11TH AUGUST, 2017

ORAL JUDGMENT (Per R.K. DESHPANDE, J.) :

1. The dispute in the present petition relates to field Survey

Nos.147/2, 153, 154/1, 2 and 3 as well as 155, 156 and 156/1, totally

admeasuring about 10.10 acres situated at Mouza-Jaitala, Ward No.15,

Tahsil and District Nagpur. The petitioners have conceded to the position

that the dispute in respect of the field Survey No.147/2 does not at all

survive and hence they do not want to press the relief in respect of the said

survey number.

2. The respondent No.2-Nagpur Improvement Trust ("the NIT")

published a notification dated 10-4-1969 under Section 39 of the Nagpur

Improvement Trust Act, 1936 (for short "the NIT Act") (equivalent to

Section 4 of the Land Acquisition Act, 1894)) for acquisition 790.56 acres

of land located at Mouza-Jaitala for the purposes of Shivangaon-Jaitala

Street Scheme. The declaration was published under Section 45 of the said

Act (equivalent to Section 6 of the Land Acquisition Act) on 16/26-9-1974.

The award was passed on 29-8-1986 and 7-10-1986 in respect of different

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survey numbers. The petitioners did not accept the amount of award, as,

according to them, the acquisition itself was to be challenged.

3. Before this Court, Writ Petition No.1407 of 1990 (Shaligram

Udhaorao Dhore and others v. State of Maharashtra and others) was filed

challenging the acquisition of lands for the purposes of Shivangaon-Jaitala

Street Scheme. During the pendency of the said petition, the respondent

No.2-NIT submitted a proposal to the State Government by its

communication dated 17-8-1991 to exercise power under Section 48(1) of

the Land Acquisition Act, 1894 ("the LA Act") to exclude the lands from

acquisition, of which the possession was not taken. According to the NIT,

the said Scheme could not be implemented because of the recent

development of 'Gajraj' Project coming up in the area. This Court

accordingly recorded the statement and disposed of Writ Petition No.1407

of 1990 on 23-8-1991. The judgment being short, is reproduced below :

"Coram : Patel and Patil, JJ.

Dated : 23rd August, 1991

Oral Judgment (Per Patel, J)

The Nagpur Improvement Trust has filed pursis today in all the aforesaid cases stating that Shivangaon Jaitala Street Scheme cannot be implemented because of the recent development of what is called as Gajraj Project of the Central Government. The effect of the new project is not the subject matter of consideration before us.

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However, since Shivangaon Jaitala Street Scheme is no longer being implemented, this Court has no option left, but to allow the petitions after quashing the awards/acquisition proceedings impugned in the respective petitions.

2. In the result, the aforesaid petitions are allowed and the impugned awards/acquisition proceedings are hereby quashed and set aside. The parties to the various petitions are directed to bear their respective costs."

In view of the aforesaid developments, the Government Resolution

dated 1-11-1995 was issued by the Urban Development Department

granting sanction under Section 48(2) of the LA Act for deleting the land

admeasuring 400.43 acres from the acquisition by the NIT.

4. According to the respondent Nos.2 and 3, the possession of

Survey Nos.153 and 154 ("the lands in question") was taken over on

1-10-1986 and of Survey Nos.155 and 156 ("the lands in question") was

taken over on 5-6-1987 and, therefore, the decision contained in the

Government Resolution dated 1-11-1985 was not applicable, as the said

lands stood vested in the State Government, free from all encumbrances, as

provided under Section 16 of the LA Act. In support of the claim of the

respondents that the possession was taken over, the receipts are placed on

record, which are at pages 65, 66, 71, 72 and 73. The revenue entries

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corrected in respect of it in the name of NIT are also placed on record.

5 Shri Parchure, the learned counsel appearing for the petitioners,

has urged that at no point of time the possession of the lands in question

was taken over either by the Special Land Acquisition Officer or by the

respondent No.2-Nagpur Improvement Trust and the petitioners continued

to remain in possession even after issuance of the Government Resolution

under Section 48(2) of the LA Act on 1-11-1995. He, therefore, submits

that the lands in question ought to have been released from acquisition by

the respondent No. 2-NIT in terms of the said Government Resolution.

Shri Parchure concedes to the position that if the NIT establishes its

possession of the lands in question in accordance with law on 1-10-1986

and 5-6-1987, then the petitioners would not be entitled to any relief in

respect of it.

6. Shri Parchure for the petitioners relied upon the decisions of the

Apex Court in the cases of :

(i) Balwant Narayan Bhagde v. M.D. Bhagwat and others, reported in AIR 1975 SC 1767;

(ii) Pralhad Singh and others v. Union of India and others, reported in (2011) 5 SCC 1, and

(iii) Rakhbir Singh Sehrawat v. State of Haryana and others, reported in (2012) 1 SCC 792,

to urge that it is for the respondents to establish that they have taken actual

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possession of the land in question on 1-10-1986 and 5-6-1987 by producing

receipts on record and drawing panchnama as per the guidelines laid down

in these decisions by the Apex Court. He submits that the claim of the

respondents to have taken possession in accordance with law has not been

established.

7. On 22-6-2017, we passed a detailed order, and the operative

portion in para 8 is reproduced below :

"8] We direct the learned counsel appearing for the respondent No.2 - Nagpur Improvement Trust to produce on record the communication dated 17.08.1991 along with the other communications which are referred to in the Government Resolution dated 01.11.1995 passed by the State Government under Section 48(2) of the Land Acquisition Act (page 75 of the reply of the N.I.T.). We also direct the learned counsel to file an affidavit as to whether panchnama was drawn while taking possession on 01.10.1986 and on 05.06.1987 and if it is so drawn, to place copies of the same on record."

The respondent No.2-NIT filed an affidavit dated 27-6-2017 and the

additional submissions on the same date enclosing with it certain

documents in support of their plea that the possession was taken over by

the respondent No.2-NIT from the Special Land Acquisition Officer on

1-10-1986 and 5-6-1987 and the revenue record was also corrected in the

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year 1993 in the name of the respondent No.2-NIT.

8. The State Government and the respondent No.3-Special Land

Acquisition Officer did not file return for a period of 17 years, but the

submissions were filed opposing the admission of the writ petition on

21-7-2000. The stand taken therein by the State Government was that on

5-6-1987, the possession of the land Survey Nos.147/2, 153, 154/1, 154/2,

153.3 as well as 155 and 156, admeasuring about 10.10 acres at

Mouza-Jaitala was taken, however the receipts of possession were not

enclosed. We, therefore, passed an order on 27-6-2017 and paragraphs 3

and 4 of the said order being relevant, are reproduced below :

"3] We shall resolve the controversy, regarding legality and validity of possession taken on 05-06-1987 in the light of the decision of the Apex Court in Pralhad Singh and others v/s Union of India, reported in 2011(5) Mh.L.J. 1. However, keeping aside the said issue for the present, what we gather is that the possession receipt dated 05-06-1987 in respect of survey nos.155 and 156 is supported by the Government but the possession receipt dated 01-10-1986 in respect of survey nos.153 and 154 there is not even a whisper in the submission filed by the respondent no.3-Special Land Acquisition Officer. In the affidavit filed today, it is stated that the respondent-NIT submitted an application on 31-03-2017 to the Revenue Record Keeper, Collectorate, Nagpur for supplying the certified copies of panchnamas and all other relevant

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documents in respect of the possession of all the survey numbers which are the subject matter of the petition. It is also stated that the NIT is informed by the Revenue Record Keeper that due to the construction of the record room the entire record got disturbed and it is being traced out. The learned Assistant Government Pleader therefore seeks time in this matter to file an affidavit within a period of one week from today."

"4. We are here at loss to get any assistance from the respondent no.1. Hence, we make it clear that if within a period of one week such affidavit is not filed, the Court shall proceed to decide the matter on its own merits on the basis of the available record. If the record is not traced out or is not available or destroyed the respondent Collector and the Special Land Acquisition Officer should file an affidavit to that effect on or before the next date. We make it clear that no further adjournment shall be granted in the matter as we have spent lot of time in hearing this matter on the small issue."

9. On 6-7-2017, when the matter was listed before us, the learned

Assistant Government Pleader appearing for respondent Nos.1 and 3 made

a statement that the record has now become available and the documents

indicating possession are also available. He, therefore, sought time to file

affidavit along with the relevant documents. Hence, we adjourned the

matter to 14-7-2017. The learned Assistant Government Pleader

accordingly produced before us the original record, which we have

perused.

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10. The case of the respondent Nos.1, 2 and 3 before this Court is

that initially the respondent No.3-Special Land Acquisition Officer took

ex parte possession of the lands in question and then handed it over to the

respondent No.2-NIT on 1-10-1986 and on 5-6-1987. Therefore, the only

question involved in the present case is whether the respondent

No.3- Special Land Acquisition Officer under the State Government and/or

the respondent No.2-NIT establish that the possession of the land Survey

Nos.153 and 154 was taken on 1-10-1986 and of Survey Nos.155 and 156,

on 5-6-1987. If it is found that the possession was actually taken over, then

we will have to dismiss the writ petition. But if we are satisfied that the

possession was not actually taken over as such, then the petitioners will be

entitled to release all the lands in question as per the Government

Resolution dated 1-11-1995 issued in exercise of the power conferred by

sub-section (1) of Section 48 of the Land Acquisition Act.

11. The claim of the respondents is that the possession of Survey

Nos.153 and 154 was taken on 1-10-1986 and it was in Case No.57 of

1983-84. We have gone through the order-sheet produced of the said case

by the respondent No.3-Special Land Acquisition Officer. The noting in the

Roznama of 19-9-86 shows that the NAs were absent though the notices

under Section 12(2) of the LA Act were served and hence the case

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proceeded ex parte. There is noting "Put up letter to the CE IV (V), NIT,

Nagpur to receive ex parte possession of the acquired land. Await NAs to

appear to receive compensation". The matter was posted on 26-9-86. The

noting 'Later on' states that "NA Nana Kashinath Saradkar is present. He

requests time to produce all the NAs to appear to hand over possession of

the land acquired and to receive payment. The ex parte findings are set

aside on the request of this NA". The matter is shown to have been posted

on 25-9-86.

12. The Roznama dated 25-9-86 appears to have been inserted by

different ink and in different hand-writing than one which is consistently

found in the Roznama. It is as under :

"25/9/86 NAs absent though aware, Case Letter issued.

proceeded ex parte against them.

Put up letter to the CE IV, NIT, Poss. taken.

Nagpur to depute his representative to receive possession of the land. Sd/- Illegible 1/10"

29/9/86 Spl. LAO

The noting in the right margin "Poss. taken" along with the signature and

the date is in different hand-writing.

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13. We find two possession receipts produced on record contained in

Revenue Case No.43/47-LND/85-86 (It is old Case No.57 of 1983-84) in

respect of Khasra Nos.153 and 154. It is styled as "Possession Memo"

under Section 16 of the LA Act, drawn by Shri R.M. Chimurkar, the Land

Acquisition Officer, Nagpur, who, having taken over the possession of the

property ex parte, makes over the same to the NIT through J.P. Shukla on

1-10-1986. It is signed by the Special Land Acquisition Officer, NIT,

Nagpur. The another possession receipt is signed by J.P. Shukla, the

Authorized Agent of the NIT, of having taken over possession on 1-10-1986

from the Land Acquisition Officer. The nature of possession taken from the

Land Acquisition Officer is shown as ex parte.

14. Thereafter, the Roznama dated 7-10-86 appears as under :

" Case put up today. In this case possession has been delivered to the NIT's representative. The possession memo is on the record. Put up letter to all concerned authorities to correct the record in the name of the NIT Nagpur and submit compliance report. Await.

NA Nana Saradkar alone present. The other NAs who are the joint holders of the land property acquired absent. The NA Nana is directed to appear with the other NAs to receive compensation.

                                20/x/86                          Sd/- Illegible
                                                                 Spl. LAO"



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15. The claim of the respondents is that the possession of Survey

Nos.155 and 156 was taken on 5-6-1987 in Case No.1/84-85 Jaitala. We

have gone through the original case papers. The Roznama dated 28-3-87

therein is as under :

"28-3-87 Award passed U/s 11(2) & filed as U/s 12(1) of LA Act. Issue S. 12(2) notices to all the awardees for 29- 4-87.

Sd/- Illegible SLAO"

The individual notices under Section 12(2) of the LA Act were issued on

8-4-87 asking all the awardees to appear on 29-4-87 stating in Marathi,

translated in English "Deliver possession of the above property and receive

compensation". The Roznama dated 29-4-97, 14-5-87 and 5-6-87 are as

under :

"29-4-87 All three awardees absent though duly served. It is 2 p.m. Proceeded ex parte.

Ask NIT whether it is willing to take over ex parte possession of the LUA wef 14-5-87.

Sd/- Illegible SLAO"

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              "14-5-87               No reply from NIT is recd.  Put up on its receipt.
                                   

                                                                            Sd/- Illegible
                                                                                 SLAO"



              "5-6-87                 Ex   parte   possession   of   LUA   handed   over   to   NIT.  
                                Possession receipt (OC) placed on record.

Request CSO, Jahr etc to correct R/R and report. 10-8-87

Sd/- Illegible SLAO"

16. In respect of lands Khasra Nos.155 and 156, it was Revenue Case

No.1/A-65/84-85, and we find from record three receipts dated 5-6-1987.

The first receipt is signed by the Special Land Acquisition Officer under the

caption "Ex parte possession taken". The contents of it, are as under :

" I, the undersigned, owner of the land admeasuring 4.33 acres of Khasra Nos.155 and 156 of Mouza Jaitala in Revenue Case No.1/A-65/84-85, delivered vacant/formal possession of the said property on Shivangaon-Jaitala Street Scheme."

Below such undertaking, there is a space left blank, meant for signature of

the owner. But there is no signature of the owner on it. The second receipt

styled as "Possession Memo" under Section 16 of the LA Act states that "I,

P.B. Sonkuwar, Special Land Acquisition Officer-I, Nagpur took over

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possession of the property". It further states that "having taken over the

possession of the property, the same has been made over the NIT by me this

day the 5th of June, 1987 to N.G. Kawde, A.E. (V), Court Agent, NIT,

Nagpur". The third receipt is signed by N.G. Kawde, A.E. (V), the

Authorized Agent of the NIT, for having taken over the possession of the

land from the Land Acquisition Officer. It recites "Nature of possession

taken from Land Acquisition Officer actual/vacant"

17. In the decision of the Apex Court in the case of Balwant Narayan

Bhagde, cited supra, the question of taking over possession by the State

Government was considered in the light of the provisions of Sections 16,

17(1) and 48 (1) of the LA Act. Para 1, to the extent relevant, of the said

decision being relevant is reproduced below :

"1. ... We think it is enough to state that when the Government proceeds to take possession of the land acquired by it under the Land Acquisition 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 land in the Government is the taking of actual possession of the land. How such possession may be taken would depend on the nature of the land. Such possession would have to be taken as the

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nature of 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 spot 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 lying 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. The aforesaid decision was followed by the Apex Court in the

case of Pralhad Singh and others v. Union of India and others, reported in

2011(5) Mh.L.J. 1. In paragraph 19, the Apex Court laid down certain

guidelines in respect thereof, which are reproduced below :

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"19. The same issue was recently considered in C.A. No.3604 of 2011 Banda Development Authority, Banda vs. Moti Lal Agarwal decided on 26-4-2011. After making reference to the judgments in Balwant Narayan Bhagde vs. M.D. Bhagwat (supra), Balmokand Khatri Educational and Industrial Trust vs. State of Punjab (supra), P.K. Kalburqi vs. State of Karnataka (supra), NTPC vs. Mahesh Dutta (supra), Sita Ram Bhandar Society vs. Govt. of NCT, Delhi (supra), Omprakash Verma vs. State of Andhra Pradesh (supra) and Nahar Singh vs. State of U.P. (1996) 1 SCC 434, this Court laid down the following 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 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.

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                  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."

Applying the aforesaid guidelines, the Apex Court has held in paragraph 20

of the said decision, "... it is not possible to sustain the finding and the

conclusion recorded by the High Court that the acquired land had vested in

the State Government because the actual and physical possession of the

acquired land always remained with the appellants and no evidence has

been produced by the respondents to show that possession was taken by

preparing a panchnama in the presence of independent witnesses and their

signatures were obtained on the panchnama"

19. Though the right to acquire, hold and dispose of the property

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has ceased to be a fundamental right under the Constitution of India, it

continues to be a legal or constitutional right, viz. that no person can be

deprived of his property save and except by and in accordance with law,

and this is the mandate of Article 300A read with Article 31A of the

Constitution of India. Taking possession of the land by the Collector either

under Section 16 or Section 17(1) of the LA Act is the most significant

event, resulting in two consequences - (i) the owner of the land is divested

of his title over it, and (ii) the land gets vested absolutely in the

Government, free from all encumbrances. Even after passing of an award,

the owner continues to retain with him the title of the land proposed to be

acquired, till lawful vesting of land in the Government. The proceedings of

land acquisition, which commences upon issuance of notification under

Section 4(1) of the LA Act, can be dropped in terms of Section 48 therein

before vesting of the land in the Government. Once the land vests in the

Government, it is not possible to withdraw it from acquisition or even to

return it to the owner. Shri Kunte, the learned counsel for the NIT, has

relied upon several decisions of the Apex Court laying down such principle

and there cannot be any dispute over it. Hence, the manner of taking

possession and establishing it, as has been laid down in the guidelines by

the Apex Court in the aforesaid decisions has to be strictly adhered to.

20. Now coming to the facts of this case, there is nothing on record

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to show that the petitioners were noticed to remain present for delivering

possession of the lands in question either on 1-10-1986 or 5-6-1987. No

such notices were issued to the petitioners. From the Roznama of both the

cases, we do not find that the petitioners were informed to remain present

on the said dates to deliver the possession of the lands in question. We are

aware that in the decision of the Apex Court in Balwant Narayan Bhagde's

case, cited supra, it has been held that it is not strictly necessary as a matter

of legal requirement that the notice should be given to the owner or the

occupant of the land that the possession would be taken at a particular

time, though it is desirable to eliminate the possibility of any fraudulent or

collusive transaction of taking of mere paper possession, without the owner

or the occupant ever coming to know of it.

21. No doubt, it has been consistently held by the Apex Court that

there can be no hard and fast rule as to what act would constitute taking of

possession of the acquired land and it would depend upon the nature of the

land. 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. It is the actual

possession of the land in such cases, which can be treated as a legal

possession so as to vest the land acquired in the Government absolutely,

free from all encumbrances, in terms of Sections 16 and 17(1) of the LA

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Act. In such a case, there would be no question of taking symbolic

possession or mere paper possession.

22. In the present case, the lands in question were vacant lands.

The Roznama in both these cases does not indicate any date fixed by the

authority concerned to go to the spot and acquire the possession of the

lands in question. There is nothing on record to show that the Land

Acquisition Officer or the Collector either by himself or any other persons

had gone to the spot either with or without the prior intimation to the NIT

for taking over the possession of the lands in question on 1-10-1986 and

5-6-1987. There is no panchnama prepared containing signatures of two

independent witnesses and in spite of our specific direction on 22-6-2017,

the respondents are unable to state on affidavit any such panchnama was

drawn while taking possession. In the absence of such evidence on record,

in our view, the ex parte possession receipts dated 1-10-1986 and 5-6-1987

indicate mere paper possession of the lands in question prepared in the

offices of the respondent Nos.2 and 3 and not the actual possession.

23. As per the guidelines laid down by the Apex Court, if the

acquisition is of a large tract of land where it is not possible to take physical

possession of each and every parcel of the land, it will be sufficient that the

symbolic possession is taken by preparing appropriate documents in the

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presence of the independent witnesses and getting their signatures on the

documents. In terms of the decision of the Apex Court in Pralhad Singh's

case, cited supra, the respondents were required to prepare a panchama in

presence of the independent witnesses and to take over possession by

getting their signatures on such documents/receipts. The receipts produced

on record dated 1-10-1986 and 5-6-1987 do not indicate that they were

prepared in presence of the independent witnesses or their signatures were

obtained on the panchnama. In fact, there was no panchnama prepared for

taking over possession of the lands in question in the absence of the

owners.

24. We are, therefore, of the view that the respondents have failed

to discharge the burden of establishing taking over actual possession of the

lands in question on 1-10-1986 and 5-6-1987, in the manner prescribed

under Section 16 of the LA Act, so as to vest the lands in question

absolutely in the State Government, free from all encumbrances. It was,

therefore, not permissible for the respondents to avoid release of the lands

in question under Section 48(2) of the LA Act as per the decision of the

State Government, contained in the Government Resolution

dated 1-11-1995. The petitioners are entitled to release of the lands in

question from acquisition. The subsequent mutation of the lands in

question in the year 1993 in the name of the NIT would be of no

23 wp2002.00.odt

consequence, as it is not the case of the respondents that the possession of

the lands in question was taken on the date, other than 1-10-1986 and

5-6-1987.

25. We are informed that the lands bearing Survey Nos.153

and 154, admeasuring 0.47 hectares, are acquired by the Maharashtra

Airport Development Authority for the purposes of MIHAN, and by consent,

award in Case No.3/A-65/05-06 was passed for the total compensation of

Rs.41,78,990/-, which was made payable to the NIT. It is not in dispute

that in terms of the said acquisition, the lands Survey Nos.153 and 154

stood vested in the Maharashtra Airport Development Authority. It is also

informed that the possession of these lands have also been taken over by

the concerned Authority, though these lands are required to be released

from acquisition under Section 48(2) of the LA Act for Shivangaon-Jaitala

Street Scheme. It has been acquired for MIHAN purposes and, therefore, it

is not possible to direct restoration of possession of these lands to the

petitioners. The petitioners do not claim to be in possession of the lands

Survey Nos.153 and 154 after it was taken over for MIHAN purposes, and

hence they would be entitled to receive compensation awarded of

Rs.41,78,990/- along with interest accrued thereon as per the award

passed in Case No.3/A-65/05-06.

24 wp2002.00.odt

26. In the result, we partly allow this petition and passed an order

as under :

O R D E R

(i) The respondents are directed to release the lands Survey

Nos.155 and 156 (including Survey Nos.156/1 and 156/2)

from acquisition for Shivangaon-Jaitala Street Scheme, as per

the decision of the State Government under Section 48(2) of

the Land Acquisition Act, 1894, contained in the Government

Resolution dated 1-11-1995.

(ii) The petitioners shall be entitled to compensation of

Rs.41,78,990/- in respect of acquisition of the lands Survey

Nos.153 and 154, area of 0.47 hectares, and they shall be

entitled to withdraw the amount of compensation along with

interest and other benefits payable to them as per the

provisions of the Land Acquisition Act.

27. Rule is made absolute in the aforesaid terms. No order as to

costs.

                              JUDGE.                          JUDGE.

Lanjewar





                                          25                             wp2002.00.odt




After Pronouncement of the Judgment :

28. At this stage, Shri Kunte, the learned counsel appearing for the

respondent Nos.2 and 3/NIT, seeks stay of the judgment and order passed

by this Court for a period of twelve weeks so as to enable the respondent

Nos.2 and 3/NIT to approach the Apex Court.

29. We, therefore, direct that the operative portion of the judgment

delivered by this Court shall remain suspended for a further period of

twelve weeks from today; at the end of which, it shall stand automatically

vacated.

                    JUDGE.                               JUDGE.