Bombay High Court
Shantinath Dada Chougule (Decd,)By ... vs The State Of Maharashtra And Ors on 25 October, 2024
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
Digitally signed
by PRAJAKTA
PRAJAKTA SAGAR
SAGAR VARTAK
2024:BHC-AS:42894-DB
VARTAK Date:
2024.10.25
21:01:44 +0530
wp 8419-08.odt
PSV/PVR
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8419 OF 2008
WITH
INTERIM APPLICATION NO. 680 OF 2023
Mr. Shantinath Dada Chougule )
(deceased) through his legal heir )
Ashok Shantinath Chougule )
Age: 65 years, Occ. Agriculturist )
Residing at Ashta, Tal. Walwa, )
Dist. Sangli ) ... Petitioner
Versus
1. The State of Maharashtra )
2. Divisional Commissioner )
(Rehabilitation), Pune Division, Pune )
3. Rehabilitation Officer, Sangli )
4. Banubai D.Kumbhar (since )
deceased through her legal heirs) )
4a.Babaso Pandurang Karaale )
4b.Arun Pandurang Karaale )
Both residing at Ashta, Tal. Walwa, )
District : Sangli ) ... Respondents
And
1. Babaso Pandurang Karaale )
2. Arun Pandurang Karaale ) ... Applicants
__________
Mr. Bhushan Walimbe with Mr. Mayank Tripathi for Petitioner.
Ms. P. J. Gavhane, AGP for State.
Mr. Mahindra Deshmukh for Respondent Nos.4a & 4b and Applicant
in IA 680/2023.
__________
CORAM:
G. S. KULKARNI &
SOMASEKHAR SUNDARESAN, JJ.
RESERVED ON: 30 AUGUST, 2024
PRONOUNCED ON : 25 OCTOBER, 2024.
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Judgment (Per G. S. Kulkarni, J.):
1. This petition under Article 226 of the Constitution of India was
filed on 19 December, 2008. It was admitted by this Court by an order
dated 22 April, 2013. The primary challenge is to an order dated 3
December, 2008 passed by the Divisional Commissioner
(Rehabilitation), Pune Division, Pune rejecting the petitioner's
application under Section 48(1) of the Land Acquisition Act, 1848 (for
short "the 1848 Act") refusing to withdraw the petitioner's land for
acquisition as also to the legality of the acquisition of the petitioner's
land.
2. At the outset, the prayers as made in the petition are required to
be noted which read thus:-
"a. This Hon'ble Court may be pleased to call for record
and proceedings of acquisition of G u t No. 903/2 and Gut
No. 131/1B+2B43C situated as Mauje Mardwadi and also record
and proceedings of Rehab/KV--3/Complaint Appln SR/01
/2004.
b. After examining legality, propriety and validity of the
decision to acquire Gut No. 903/2 and Gut No.
131/1B+2B+3C situated as Mauje Mardwadi, this Hon'ble Court
m a y be pleased to quash and set aside the said decision and
declare that said land of the Petitioner is liable to be acquired
and further this hon'ble Court may be pleased to set aside and quash
the impugned order dated 3.12.2008 passed by the
Respondent No. 2 in Rehab/KV--3/ Complaint Appln
SR/01/2004,
c. In the alternative, this Hon'ble Court may be pleased to
direct the respondents to acquire the alternative land being Gut
No. 124/1B+2B+3C admeasuring 88 R instead of Gut
No.903/2 and Gut No. 131/1B+2B+3C situated as Mauje
Mardwadi;
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d. This Hon'ble Court may be pleased to stay effect,
implementation and operation of the Judgement and order
dated 3.12.2008 passed by the Respondent No.2 in Rehab/KV--
3/ComplaintAppinSR/01/2004,
e. Ex-parte ad-interim/interim relief in terms of
prayer clause (d) be granted."
3. The relevant facts are:
On 13 May 1977, the State Government published a notification
under Section 11(1) of the Resettlement Act setting out 13 May 1977 to
be the notified date. For the area of Village Ashta, a slab of 8 acres came
to be fixed for acquisition of the different lands. In other words, the
ceiling of 8 acres was fixed, thus, land holding beyond such ceiling limit
was to be acquired for the public purpose of rehabilitation of the project
affected persons, who were displaced persons from the 'Warna Dam
project.'
4. On 13 October 1983, the State Government issued a notification
under Section 4 of the Land Acquisition Act, 1894 (for short, "LA Act")
read with the provisions of the Resettlement Act. On 21 August 1986, a
corrigendum was issued to the notification under Section 4 and
thereafter on 08 October 1986, notification under Section 6 of the LA
Act was issued. Land of the petitioner and subject matter of acquisition
is described to be Gat No.903/2 and Gat No. 131/1B+2B+ 1C/2
admeasuring 19 R situated at Mauje Mardawadi. On 29 December
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1988, an award acquiring the land was published qua the petitioner's
land.
5. It is the case of the petitioner that the petitioner's father
Shantinath Chougule was Karta of the petitioner's joint family which
comprised of the petitioner (Ashok) and his brother Bahubali. On the
notified date i.e. 13 May 1977, the holding of the joint family of the
petitioner was 8 acres and 5 gunthas only, which is stated to be clear
from the revenue extracts being the account, of petitioner's holding.
Accordingly, only 5 gunthas land was in excess of the ceiling limit. It is
however, submitted that the State considered the petitioner's holding to
be more than 8 acres and 5 gunthas for the reason that one Vasant
Dharma Wadkar had mortgaged his land with the petitioner's father
Shantinath Chaugule, being land Revisional Survey No. 1077/2
admeasuring 3 acres and 16 gunthas. It is contended that although such
land was mortgaged, Shantinath was never put in possession of the said
land and therefore, Revisional Survey No. 1077/2 belonging to Vasant
Wadkar (for short, "Wadkar") had never become part of the holding of
Shantinath, as the revenue record also described Wadkar as the
mortgagor in respect of the said land. The petitioner has also described
as to how Wadkar had purchased the said land.
6. It is, therefore, the petitioner's contention that on the notified
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date, Survey No.1077/2 admeasuring 3 acres and 16 gunthas could not
have been added to the petitioner's account for the purpose of
consideration of the slab for acquisition and on the notified date (13
May 1977), the petitioner's entire holding was thus exempted from the
acquisition. The averment to this effect made by the petitioner is
"however unfortunately, under some wrong pretext, Survey No. 1077/2
was included while calculating the total holding of Shantinath ". The
petitioner has also contended that in fact in the year 1981, a regular Civil
Suit No. 90 of 1981 was filed by Jaywant Bharama Wadkar and Kumar
Bharma Wadkar against Shantinath praying for redemption of the
mortgage and re-conveyance of the said mortgaged land bearing
revisional survey no. 1077/2. It is stated that such suit came to be
decreed. Shantinath accordingly, re-conveyed Revisional Survey No.
1077/2 to the said plaintiffs (mortgagor). It is contended that " however
wrongly, the revenue authorities included Revisional Survey No.
1077/2 area in the total holding of Shantinath and have arrived at a
wrong conclusion that total holding of Shantinath is 11 acres and 22
gunthas" (reference in paragraph 5 of the petition). It is stated that due
to such mistake, as per section 16 of the LA Act, an area of 81 R was
held to be in excess in the total holding of Shantinath, hence the
respondents decided to acquire 62 R area out of Gut No. 903/2 and Gut
No. 131/1B+2B+1C/2 admeasuring 19 R situated at Mauje Mardawadi
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from the holding of Shantinath. In this context, relevant averments are
made in paragraph 5 of the petition.
7. It is next contended that 62 R of land out of the petitioner's land
purportedly acquired, Gat No. 903/2 was allotted to one Smt. Banubai
Dnyanu Kumbhar in regard to which mutation entry (ME) no. 58249
recording her name in the revenue records was made in 7/12 extract, qua
the said land.
8. In the aforesaid circumstances, the petitioner being aggrieved by
the acquisition of the petitioner's land, inter alia contending that it was
illegal, filed an application before the Divisional Commissioner, Pune
Division under Section 48(1) of the LA Act praying that the acquisition
of Gut No.903/2 be withdrawn/deleted on the ground that the
petitioner's land was not liable to be acquired considering the slab under
the Act. Such application came to be filed in January 2004 as seen from
Exhibit-B and was numbered as Resettlement Application No. 1 of
2004. It is significant that in such application, the petitioner in
paragraph 11 made a categorical averment that although the respondent
contended that possession of the land was taken over and handed over
to the project affected person, however, it was merely on paper, as the
physical possession of the land was with the petitioner. No panchanama
recording the taking over of the possession of the petitioner's land
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formed part of the record. It is for such reason, the application of the
petitioner was stated to be valid under the provisions of Section 48(1) of
the LA Act. This apart, in paragraph 12 of the said application, the
petitioner also contended that the petitioner was ready to hand over
alternate land i.e. total slab of 88 ares from Gut No. 1224/1B-2B-3C
and such land was totally admeasuring 1 hector and 22 ares. He also
admitted that in the revenue record, the name of the petitioner qua the
land which stood acquired was deleted and the name of the project
affected person namely Banubai Dyanu Kumbhar was recorded and on
such basis she was trying to dispossess the petitioner from the land.
9. The petitioner's application under Section 48(1) of the LA Act
came to be rejected by the Divisional Commissioner, Pune Division, by
the impugned order dated 03 December 2008. In such order, the
Divisional Commissioner recorded that the petitioner's father never
objected to the acquisition of the land as also he never objected to the
slab as fixed, in respect of which report of the DRO was called for which
was placed on the record of the said proceedings. It was observed that in
fact, the entire land acquisition proceedings had taken place, when the
petitioner's father was surviving and who never objected to the said
acquisition. It is observed that in fact in the year 1997 the project
affected persons were allotted the petitioner's land. Thereafter in
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January 2004, the petitioner made an application offering alternate land
to be acquired in lieu of the land which was already acquired under the
award dated 29 December 1988. It is inter alia on such reasons, the
Commissioner rejected the application of the petitioner under Section
48(1) refusing to withdraw the land from acquisition. The impugned
order passed by the Commissioner needs to be noted, which reads as
under:-
"(Official Translation of a photocopy of an ORDER, being a
marked portion, typewritten in Marathi)
Considering the aforesaid facts in this matter, I,
Divisional Commissioner, Pune Division, Pune pass order as
under :-
ORDER
1) Acquisition process has been completed and possession
has been vested in the Government. The Land has been allotted
to the
Project Affected Person in the year 1997 itself. As per the
provisions of Section 48(1) of the Land Acquisition Act, 1894,
the
Commissioner has no powers to withdraw any land from the
acquisition process.
2) In this matter, as per the entries of the survey of crops
made in the 7/12 extract and the panchanama dated 31.03.2004
drawn up by the Circle Officer, District Rehabilitation Office,
Sangli, the Applicant has his house and a tin-sheet shed situated
in the area admeasuring 0.02 hectares. Hence, the possession of
the said land shall be given to the Project Affected person by
confirming the boundary marks thereof and by withdrawing the
said area from acquisition process. Further, the District
Rehabilitation Officer, Sangli shall take steps to acquire from the
Applicant, a continuous area admeasuring 0 hectare, 2 Are
situated adjacent to the area suitable for acquisition, in lieu of
the said area withdrawn from the acquisition process.
Signature/-XXX
(Dr. Nitin Karir)
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Commissioner, Pune Division, Pune.
The Seal of the Commissioner,
Pune Division, Pune.
To,
1) Late Shantinath Dada Chougule, since deceased, through
heir Shri Ashok Shantinath Chougule, R/at Ashta, Tal. Walwa,
District Sangli.
Copy for Information and for taking steps :-
1) District Rehabilitation Officer, Sangli.
2) Special Land Acquisition Officer No.11, Sangli.
(Signature Illegible)
For Commissioner,
Pune Division, Pune.
True Copy,
(Signature Illegible)
Advocate."
10. It is on the aforesaid premise, the present petition is filed praying
for the reliefs as noted by us hereinabove.
11. At the time when this petition was filed, the jurisdiction to
entertain and hear such petition was vested with the learned Single
Judge. On 6 January 2009, the learned Single Judge passed the
following order on this petition inter alia directing the parties to
maintain status quo while adjourning the proceedings:-
" The petitioner is directed to implead the affected person
viz. Smt.Banubai Dnyanu Kumbhar as party-respondent in the
petition and serve copy of petition on newly added respondent.
Amendment to be carried out within one week from today.
Stand over for two weeks.
In the meantime, parties to maintain status-quo."
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Thereafter, the proceedings were transferred to be heard by the Division
Bench. A co-ordinate Bench of this Court while admitting the petition
on 22 April, 2013 passed the following order:
" Time is sought on behalf of the State
Government to comply with the order dated 28 th March
2013. Though the petition is pending from the year 2008,
till today, there is no reply filed.
2. Rule. The learned AGP waives service for the
Respondent Nos.1 to 7.
3. Rule on interim relief is made returnable on 12 th
July 2013. By way of ad-interim relief, we direct that the
status quo, as of today, shall be maintained in respect of the
possession of the land in dispute."
12. The proceedings since had remained pending, however, as the
added respondents having filed an interim application, the proceedings
were moved before us. Accordingly, the proceedings were listed before
us on 29 August 2024 when we had extensively heard learned Counsel
for the parties, however, considering the fact that the petition was
admitted for final hearing and a short issue was involved, we thought it
appropriate to adjourn the proceedings to 30 August 2024 so that the
parties can be heard finally and the petition can be closed for judgment
to be delivered. The order dated 29 August 2024 reads thus:
"1. As this petition is admitted for final hearing and as the
issue involved is a short issue, we list the petition tomorrow on the
Supplementary Board.
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2. Parties are put to notice that the petition would be taken
up and finally disposed of.
3. We have spent considerable time on this petition. Today
we have also examined the documents. What we require is further
arguments of learned counsel for the petitioner and the State
Government, if any.
4. Let learned counsel for the parties keep ready appropriate
list of dates."
13. There are two reply affidavits filed on behalf of the State
Government. The first reply affidavit dated 13 February 2009 of Mr.
Jotiba Tukaram Patil, District Resettlement Officer, Sangli, which inter
alia contends that on the cut-off date i.e. on 13 May 1977, the
petitioner's holding as per village form No.8/A, Khata No.3430 was 11
acre 22 gunthas i.e. 4 H 62 R. The affidavit avers that the petitioner's
contention that the petitioner's joint family holding was 8 acre 5
gunthas, is not correct. It is further stated that the petitioner has
admitted that an area admeasuring 2 acre 16 gunthas from Survey no.
1077/2 was mortgaged with petitioner's father, as also to the fact that
there was a Regular Civil Suit filed by the original owners which was
decreed and the land was restored to the original owner Mr. Wadkar.
Even considering such restoration of Survey no.1077/2 in favour of Mr.
Wadkar, is stated to have taken place, after the cut-off date, i.e., 13 May
1977. It is next stated that the petitioner has not produced any evidence
to show the entry in the revenue records deleting the name of the
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petitioner's father was cancelled under the provisions of Bombay
Tenancy and Agricultural Lands Act. It is averred that the evidence
produced by the petitioner showed that land under Survey No.1077/2
was restored to the original tenant Mr. Wadkar after re-conveyance deed
dated 13 April 1982, and as per the decree in Regular Civil Suit No.80
of 1981. It is stated that this position was evidently seen from the
mutation entry No.49298.
14. The affidavit further states that the petitioner is not correct in
contending that under a wrong pretense, Survey No.1077/2 was
included while calculating his total holding. It is stated that Survey
No.1077/2 was mortgaged with the petitioner, and its redemption and
re-conveyance had taken place after the cut-off date of 13 May 1977. It
is stated that the land's re-conveyance deed was effected on 13 April
1982 and its effect was taken into the village record by mutation entry
no.49298 which was mutated on 2 July 1982 and certified on 26
August 1982. It is contended that such position made it clear that the
petitioner was holding land from Survey No.1077/2 on cut-off date as
such calculation of slab and its further acquisition is statutory as per
existing laws.
15. It is contended that re-conveyance deed and redemption of
mortgage had taken place after the cut-off date and hence, the
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petitioner's contention of incorrect inclusion of petitioner's land in his
holding qua the requirement of slab, is misconceived.
16. It is next stated that during the hearing before the Additional
Commissioner, Pune Division, on 8 January 2004, the petitioner had
proposed to substitute the land for acquired land, and on enquiry
through the District Resettlement Officer, Sangli, it was revealed that
the petitioner was not ready to give substitute land and therefore, taking
into consideration the petitioner's proposal does not arise. It is stated
that the acquired land was already distributed to the project affected
persons who were cultivating the same. It is next contended that since
the acquisition proceedings under the LA Act were completed and the
possession has been taken over, the land cannot be withdrawn from the
acquisition under the provisions of Section 48(1) of the LA Act, so also
the land has been granted to the project affected persons, the petitioner's
proposal of alternative land cannot be accepted in the absence of the
project affected persons' willingness.
17. On 20 March 2013, a Division Bench of this Court passed a
detailed interim order on the present petition inter alia observing that by
the impugned order, the Additional Commissioner has declined to
entertain the application made by the petitioner under Section 48(1) of
the LA Act on the ground that the possession of the acquired land has
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already been taken over and the same has been allotted to a third party.
It was observed that though in the reply affidavit filed by the District
Resettlement Officer, it was stated that the possession has been handed
over, there was no document in support of such contention. It was
observed that the State will have to produce necessary documents to
show that the possession of the acquired land has been already taken
over under Section 16 of the LA Act. The respondent No.3 was
accordingly directed to file additional affidavit within a period of three
weeks and along with the additional affidavit, copies of the necessary
documents were directed to be annexed to substantiate the contention
that the possession of the acquired land is taken over under Section 16
of the Act. The said order reads thus:
". By the impugned order, the Additional Commissioner has
declined to entertain the Application made by the Petitioner under
Section 48(1) of the Land Acquisition Act, 1894 on the ground that
the possession of the acquired land has been already taken over and the
same has been allotted to a third party. Though in the reply filed by the
District Re-settlement officer, it is reiterated that the possession has
been handed over, there is no document annexed to the reply in
support of the said contention. The State will have to produce
necessary documents to show that the possession of the acquired land
has been already taken over under Section 16 of the said Act. We,
therefore, direct the Respondent No.3 to file an additional affidavit
within a period of three weeks from today. Along with the additional
affidavit, copies of the necessary documents shall be annexed to
substantiate the contention that the possession of the acquired land has
been taken over under Section 16 of the said Act."
(emphasis supplied)
18. It is on such backdrop when the proceedings were listed before
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the Division Bench on 22 April 2013, the Division Bench while issuing
rule on the petition, passed the following order:
" Time is sought on behalf of the State Government to
comply with the order dated 28 th March 2013. Though the
petition is pending from the year 2008, till today, there is no reply
filed.
2. Rule. The learned AGP waives service for the Respondent
Nos.1 to 7.
3. Rule on interim relief is made returnable on 12th July
2013. By way of ad-interim relief, we direct that the status quo, as
of today, shall be maintained in respect of the possession of the
land in dispute."
19. In pursuance of the interim order dated 20 March 2013 (supra),
an additional affidavit of Mr. Hanmant Ramchandra Mhetre, Naib
Tahasildar, Office of Collector, Sangli, was filed on behalf of respondent
nos.1 to 3. The affidavit states that on 13 May 1977, land admeasuring
0.81 R belonging to the petitioner and situated at Village Astha, Taluka
Walva, District Sangli was acquired for rehabilitation of Project Affected
Persons of Warna project. That out of the said land, the land
admeasuring 0.62 R from Survey no.903/2 was allotted to Smt. Banubai
Dnyu Kumbhar on 1 January 1990. It records that the said transfer was
recorded in the revenue records by mutation entry no.58248. It is
further stated that the balance land of 0.19 R from Survey No.903/2
(old) and Gat No.131/1B+2B+3C situated at Mauje Mardwadi, Taluka
Walva, District Sangli, so far has not been allotted to any project affected
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persons, possession of such balance land is with the District
Rehabilitation Officer, Sangli.
20. On 17 December 2012, on behalf of the added respondent
no.4(a), Shri. Babaso Pandurang Karaale who claims to be the legal heir
of the deceased respondent no.4-Smt. Banubai (the project affected
allottee of the land) has filed an affidavit to contend that the suit land
was allotted to respondent no.4 Banubai as she was project affected
person, who expired on 19 April 2006 at Ashta. It is stated that before
her death, Banubai had executed a Will in favour of respondent No.4(a)
and 4(b) as they had taken care of Smt. Banubai during her old age. It is
stated that Banubai died issueless and there was no legal heir of her
except respondent nos.4(a) and 4(b) hence out of love and affection, the
land allotted to Smt. Banubai as project affected person was bequeathed
to respondent nos.4(a) and 4(b). It is stated that these respondents
applied to the revenue authority to enter their names in the revenue
record of the land, in pursuance of the Will executed by Banubai in their
favour and accordingly, their names were entered in the revenue record.
It is stated that the land in question has although been shown in their
names, the physical possession of the land has never been taken over by
the State Government from the petitioner to be given to respondent
Nos.4(a) and 4(b), also due to interim orders passed by the
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Commissioner and the interim orders passed on the present writ petition
by this Court on 6 April 2009. There is something more in this affidavit
when it is stated that respondent nos.4(a) and 4(b) were in dire need of
finance hence they had obtained loan. It is stated that as there was
burden on them to repay the loan, respondent Nos.4(a) and 4(b) with
an intention to raise funds were desirous of selling the said land as
allotted to Smt. Banubai as project affected person, to a willing buyer. It
is stated that as the petitioner came to know that respondent Nos.4(a)
and 4(b) were desirous of selling the land, the petitioner gave a proposal
to respondent Nos.4(a) & 4(b) to purchase the said land (petitioner's
own land allotted to Banubai) for valuable consideration. It is stated that
although the land was not in the possession of respondent nos.4(a) and
4(b) and as also litigation was pending on this land, it was decided by
them to sell this land to the petitioner. It is contended that permission
of the Collector was necessary before executing a sale deed and as
already the parties had executed an agreement for sale on 30 August
2012 in favour of son of the petitioner by accepting earnest money of
Rs.3,25,000/-. It is stated that as the possession of the land was already
with the petitioner, respondent Nos.4(a) and 4(b) confirmed the sale of
the land to the petitioner after the agreement for sale was entered with
the petitioner. A copy of the agreement for sale is placed on record in
the application filed on behalf of respondent Nos.4(a) and 4(b) being
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Civil Application (st) No.34871 of 2012. It is stated that as the dispute
between the petitioner and respondent nos.4(a) and 4(b) is settled
between the parties in the aforesaid terms, the parties are ready to file
minutes of the order/consent terms and as it is not possible for
respondent Nos.4(a) and 4(b) to travel to Mumbai, they have
authorized Advocate Shri. Mahindra Deshmukh to make a statement on
their behalf and to sign all applications, documents including minutes of
the order or consent terms before the High Court and for such reasons,
presence of these respondents be dispensed with. There is a similar
affidavit dated 17 December 2012 filed by respondent No.4(b) of Mr.
Arun Pandurang Karaale.
21. It is on the above backdrop, the proceedings are before us and
argued by learned Counsel for the parties.
Submissions on behalf of the Petitioner :-
22. Mr. Walimbe, learned Counsel for the petitioner has made the
following submissions:
(i) The petitioner's application being filed under Section 48(1) of the
LA Act, the State Government / Commissioner had power to drop the
acquisition of the petitioner's land, as the possession of the land was not
taken over by the State. It is submitted that till the time, the possession
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of the acquired land was not taken over, the petitioner had a right to
maintain an application under Section 48 of the LA Act. In the present
case, indisputedly the possession of the acquired land is with the
petitioner till date.
(ii) On the date of acquisition, the land of the Petitioner was not in
excess of the slab as notified.
(iii) As per the Government Resolution dated 28 October 1987, the
State can acquire the land if it was more than 20R and that too the State
must acquire land continuously at one place, however, in the petitioner's
case, the State was trying to acquire the land at two different places. It is
submitted that the petitioner has a house, gobergas, dung pit, cattle shed
on the present land, therefore, he cannot be displaced to make way for
project affected person (Smt. Banubai) who does not require land.
(iv) A mortgaged land cannot be considered to be part of one's
holding, which is squarely applicable to facts of the petitioner's case.
(v) It is a settled principle of law that till possession of the acquired
land is taken, State Government would have jurisdiction to consider
application for deletion of land from acquisition.
(vi) It is submitted that when the initiation of acquisition itself was
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vitiated, land of the petitioner therein was not liable for acquisition
under the Maharashtra Project Affected Persons Rehabilitation Act,
1999.
(vii) That Respondent No. 4(a) and 4(b) have accepted Rs. 3,25,000/-
and have filed their respective affidavits before this Court confirming
that they have entered into such agreement for sale qua the acquired
land, which is an additional factor to indicate that the land now needs to
be deleted from acquisition.
(viii) In the Government Resolution dated 28 June 1988, the State
Government has directed the authorities to verify the holding before
acquiring the land. Hence any acquisition without satisfying the basic
requirements under the Government Resolution would be bad and
illegal.
Submissions on behalf of the State :-
23. Learned Assistant Government Pleader for the State has made
extensive submissions based on the reply affidavits as filed. She would
submit that the acquisition had taken place during the lifetime of the
petitioner's father who had not challenged the acquisition and the award
was passed. She is, however, not in a position to dispute that although
the land was acquired, the possession of the land has remained with the
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petitioner. She is also not in a position to point out whether the
petitioner's father has been paid compensation and more particularly,
when specific averments have been made in the petition that the
petitioner's father was poor agriculturist having income only from
agriculture and had no other source of income. On the maintainability
of the petitioner's application under Section 48(1) of the LA Act and
the reasons as set out therein, it is her submission that the orders passed
by the Additional Divisional Commissioner require no interference.
However, while so submitting, she is not in a position to dispute the
jurisdictional aspect namely of the petitioner having remained in
physical possession of the land being the necessary requirement to
maintain an application under Section 48(1) being complied. The
learned AGP also is not in a position to dispute the subsequent
developments of respondent nos.4(a) and 4(b) having agreed to sell the
land as acquired in favour of the petitioner.
Submissions on behalf of respondent nos.4(a) and 4(b) :-
24. Learned Counsel for respondent Nos.4(a) and 4(b) has fairly
stated that there was an attempt on behalf of his clients to sell the land
under an agreement of sale dated 30 August 2012 to the petitioner.
However, it is his submission that the land was being sold merely on the
ground that the revenue entries were made in their favour on the basis
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of a Will of Banubai who was project affected person, however, without
physical possession being received by her. He has not disputed that the
possession of the land as pointed out in the affidavit of respondent
Nos.4(a) and 4(b) has remained with the petitioner. He submits that the
petition be dismissed and the possession of the land be taken over from
the petitioner and be handed over to respondent Nos.4(a) and 4(b).
Analysis and conclusion :-
25. We have heard learned Counsel for the parties. With their
assistance, we have perused the record.
26. The question which falls for our consideration is as to whether in
the facts and circumstances of the case, the impugned order dated 3
December 2008 passed by the Divisional Commissioner, Pune Division,
rejecting the petitioner's application under Section 48(1) of the LA Act,
is legal and valid and whether the petitioner is correct in its contention
that the petitioner's land could not have been subjected to acquisition
considering the issue in regard to applicability of the slab as arisen on
the wrong assumption on redemption of mortgage and hence, the land
acquisition qua the petitioner's land itself was vitiated.
27. First and foremost, we examine whether the jurisdictional
requirement under sub-section (1) of Section 48 of the LA Act stood
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satisfied for the petitioner to maintain his application, namely, the
possession of the land not being taken over although an award was
passed on 29 December 1988. Also the legality of the impugned order
would be required to be tested on the grounds which the petitioner has
raised and more particularly the specific contention in respect of
inappropriate slab being applied to acquire the petitioner's land on the
ground that the revenue record had indicated that the petitioner is
holding the land admeasuring 3 acre 16 gunthas, by including in the
petitioner's holding the mortgage land, which was not land of the
ownership of the petitioner, but the ownership of one Mr. Wadkar and
which was required to be returned to him under the decree of the Civil
Court.
28. Insofar as the first contention as urged on behalf of the petitioner
assailing the impugned order passed by the Divisional Commissioner
when it observes that the application of the petitioner under Section
48(1) of the LA Act, did satisfy the jurisdictional requirement as
possession of the land taken over by the State, appears to have been
considered by the Commissioner without application of mind. To
appreciate this ground of challenge, it would be necessary to note the
provisions of Section 48(1) of the LA Act, which read thus:
"48. Completion of acquisition not compulsory, but
compensation to be awarded when not completed:
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(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.
.............."
(emphasis supplied)
29. On a plain reading of Section 48(1) of the LA Act, the
jurisdictional requirement to maintain an application under Section
48(1) is to the effect that the possession of the land needs to remain with
the owner of the land, irrespective of the fact that an award being
published. In the present case, it appears to be as clear as the sunlight,
that although the award was published on 29 December 1988, the
possession of the land in question has remained with the petitioner. This
is evident from the reply affidavit as filed on behalf of the State
Government in pursuance of the order dated 20 March 2013 passed by
this Court, as noted hereinabove. By this specific order passed by the
Court, the State Government was directed to place on record the
documents showing that the possession of the land was taken over by
the State. In response to the same, as noted hereinabove, the reply
affidavit filed on behalf of the State Government, Shri. Hanmant
Ramchandra Mhetre, does not disclose anything in compliance of such
order of the Court that the physical possession of the land was taken
over. This apart respondent Nos.4(a) and 4(b) in their reply affidavits
have categorically stated that the possession of the land is with the
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petitioner which has not been disputed by the State Government. Thus,
merely on the basis of unilateral revenue entry, the Divisional
Commissioner has proceeded to pass the impugned order overlooking
that the possession of the land had remained with the petitioner and for
such reasons, the petitioner's application under Section 48(1) was
maintainable. Thus, on an untenable premise and contrary to sub-
section (1) of Section 48 he proceeded to reject the petitioner's
application, when the jurisdictional requirement of the physical
possession being not taken over, was the reality on record.
30. The second aspect and which, in our opinion, is quite crucial is to
the petitioner's case of patent non-application of mind on the part of the
Divisional Commissioner, to reject the case of the petitioner on the
ground of appropriate slab being not applied. In the present case, the
petitioner had clearly taken a contention that an area admeasuring 3 acre
16 gunthas from the total holding of the petitioner was not the land of
the ownership of the petitioner, but it was the ownership of Mr. Wadkar
who had mortgaged his land to the petitioner's father and in respect of
which the petitioner's father was never put in possession. It has also
come on record that Mr. Wadkar had filed a suit for redemption of the
mortgaged property and succeeded in the said suit (Regular Civil Suit
No.90 of 1981). As a consequence of the decree of the Civil Court, the
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mortgage, which was of the year 1966, stood redeemed the consequence
being looked from any angle the land could never have formed part of
the ownership of the petitioner's father qua the application of the slab.
It is significant that the notified date for the slab to operate was almost
11 years thereafter i.e. on 13 May 1977. Thus, the legal consequence of
mortgage was completely overlooked as the petitioner's land could not
have been considered to be in the ownership of the petitioner's father in
determination of the relevant slab. It is not the case that the mortgage
was created after the notified date of 13 May 1977. In fact on this count,
we find that there is total non-application of mind of the Divisional
Commissioner in regard to the legal consequence the mortgage would
create. Such mortgage certainly did not create ownership of the
mortgaged land in favour of the petitioner's father unless in a manner
known to law there was a foreclosure of the mortgage so that the
ownership of the land would shift to the petitioner. Nothing to this
effect had happened for the Commissioner to assure that the land held
by the petitioner's father was in excess of the slab as notified and
therefore could be subjected to acquisition. Such legal aspect has been
completely overlooked by the Divisional Commissioner in passing the
impugned order on the petitioner's application under Section 48(1).
This apart, in the reply affidavit of Mr. Jotiba Tukaram Patil, District
Resettlement Officer, Sangli, a stand contrary to the legal position on
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mortgage of land is sought to be taken to justify the contention that the
mortgaged land would be included in the total holding of the
petitioner's father. The relevant contents of paragraphs 4, 5 and 6 of the
reply affidavit read thus:
"4. With reference to Para No. 3 of the Petition, I say that on
cut-off date i.e. on 13.5.1977, the Petitioner's holding as per village
form No. 8/A, Khata No. 3430 was 11 acre 22 gunthas i.e 4 H 62
R. The petitioners contention that their joint family holding was 8
acre 5 gunthas only is incorrect. The petitioner himself admitted
that an area admeasuring 2 acre 16 Gunthe from Survey No.
1077/2 was mortgaged land with them. This mortgaged land was
decreed in Regular Civil Suit No. 90 of 1981 and restored to the
original owner i.e Shri Wadekar. The restoration of Survey No.
1077/2 was taken place after cut-off dated ie 13.5.1977. All these
things clearly indicates that, the Petitioner's were holding Survey
N. 1077/2 alongwith their other lands. This can be clearly evident
from the extract of Mutation Entry No. 49298 which was
produced by the Petitioner himself in this writ. As such contention
of the Petitioner in Para No.3 is not acceptable.
5. With reference to Para no. 4 of the Petition, I say that the
petitioner has not produced any evidence to show that the entry of
the name of the Petitioner's father came to be cancelled due to the
provisions of B.T and A.L Act. Whatever evidence produced by
the Petitioners shows that, mortgaged Survey No. 1077/2 was
restored to original owner Shri Wadkar after re-conveyance deed
dated 13/4/1982 and as per decree in regular Civil Suit No. 80/81.
this position. evidently seen from the mutation entry No. 49298.
As such contention of the Petitioner in para 4 is not acceptable.
6. With reference to Para No.5 of the Petition, I say that the
Petitioner under some wrong pretence the Survey No. 1077/2 was
included while calculating the total holding is incorrect. The
survey No. 1077/2 was mortgaged with Petitioner and its
redemption and re-conveyance was taken place after the cut-off
dated i.e 13.5.1977. Re-conveyance deed was affected on
13.4.1982 and its effect was taken to the village record by
mutation entry No. 49298 which was muted on 2.7.1982 and
certified on 26.8.1982. This situation makes clear that Petitioners
were holding land from Survey No. 1077/2 on cut-off date. As
such calculation of slab and its further acquisition is statutory as
per existing laws."
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31. Thus, the cumulative position apparent from the record is that the
physical possession of the land from the petitioner or his father was
never taken over, although the Award was published on 29 December
1988. Moreover, the petitioner's possession had remained protected by
the interim orders dated 06 January 2009 (supra) passed by this Court
and is continued till date. There was never an attempt on the part of the
State to get the interim orders vacated and also an attempt to take over
the possession. Further the basic requirement in law of a panchanama
to take over the possession of the acquired land finds no trace on the
record of the proceeding so as to consider that the possession of the land
under a formal panchanama was taken over. The petitioner, therefore,
has continued to remain in possession of the land since the year 1988 till
date which is a period of 36 years and that too openly and hostile to the
State Government as also respondent Nos.4(a) and 4(b), who also do
not dispute on the petitioner's possession.
32. Being confronted with such a clear position on record, learned
AGP would intend to rely on the decision of the Supreme Court in
Indore Development Authority Vs. Manoharlal & Ors. 1 to contend that
the land stood vested with the State and therefore, the orders passed by
the Divisional Commissioner ought not to be set aside.
1 (2020)8 SCC 120
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33. We have given anxious consideration to such contention as urged
on behalf of the State. Insofar as the possession of the land is concerned,
in Indore Development Authority (supra), the Court has held that
drawing of panchnama for taking over possession is the accepted legal
mode of taking possession in land acquisition cases, and thereupon land
vests in the State and any re-entry or retaining the possession thereafter
is unlawful and does not inure for any benefits to be availed under
section 24(2) of the Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short,
"2013 Act").
34. In the present case though the award was rendered on 29
December 1988, it clearly appears that the physical possession of the
land was not taken over within the meaning of Section 16 of the LA Act,
for the absolute vesting of the land from the Government free from all
encumbrances. This is clear from the following: (i) categorical assertion
as made by the petitioner that physical possession of the land is with the
petitioner; (ii) in such context an order dated 20 March 2013 passed by
the co-ordinate Bench of this Court directing respondent No.3 to file an
additional affidavit within a period of three weeks and also directing that
alongwith the additional affidavit, copies of the necessary documents be
annexed to substantiate the contention that the possession of the
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acquired land has been taken over under Section 16 of the Act.
35. A reply affidavit was filed on behalf of the State Government in
compliance of the aforesaid order which shows that only symbolic
possession has been taken and not the physical possession, as no
panchanama or any other document as would be acceptable in law to
show that the physical possession of the land being taken over, is placed
on record.
36. The clear statement as made in the affidavits filed on behalf of
respondent Nos.4(a) and 4(b) who claimed to succeed the interest of the
original allottee (Project Affected Person) have also contended that the
physical possession of the land is already with the petitioner. The
statement as made in their respective affidavits read thus:
"6. I say that since the permission of the collector is necessary
before executing sale deed, we have already executed notarised
agreement for sale on 30.08.2012 by accepting earnest amount of
Rs. 3,25,000/- in favour of son of the Petitioner. Since the
possession is already with the petitioner, we have merely
confirmed the same after the said agreement for sale. I say that the
aforesaid notarised agreement for sale is annexed at Exhibit - B to
the Civil Application (St) No. 34871 of 2012 for bring legal heirs.
I accept the same to be true and binding on us."
37. It is thus clear that the physical possession of the land has
remained with the petitioner. In such context as the land acquisition in
question falls under the provisions of the Land Acquisition Act,1894
(for short 'the 1894 Act'), the position in law is required to be noted.
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38. Section 16 of the LA Act provides for power to take possession
which reads thus:
16. Power to take possession.--When the Collector has made an
award under Section 11, he may take possession of the land, which
shall thereupon vest absolutely in the Government, free from all
encumbrances.
39. In Indore Development Authority Vs. Manoharlal & Ors.
(supra), one of the issues which had fallen for consideration of the
Supreme Court was an issue of possession under the LA Act. Such issue
has been dealt under the title "In re: Issue no.4: mode of taking
possession under the Act of 1894." The Supreme Court considering the
provisions of Section 16 of the LA Act observed that the act of vesting of
the land in the State is with the possession of the land being taken over.
It is held that a person cannot come in possession of the land after the
possession is taken over and would remain as trespasser and would not
have right to possess the land which vests in the State free from all
encumbrances as per the provisions of Section 16 of the LA Act. The
Supreme Court considered the question whether there is any difference
between taking possession under the LA Act and the expression
"physical possession" used in Section 24(2) of the 2013 Act. Insofar as
taking possession under the LA Act is concerned, it was observed that
"As a matter of fact, what was contemplated under the Act of 1894, by
taking the possession meant only physical possession of the land." The
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Supreme Court further observed that when the Government proceeds to
take possession of the land acquired by it under the LA Act, it must take
actual possession of the land since all interests in the land are sought to
be acquired by it. There was 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.
The following observations as made by the Supreme Court are required
to be noted which read thus:-
"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 enures for his benefit and on behalf of the owner.
.........
261. Now, the court would examine the mode of taking
possession under the Act of 1894 as laid down by this Court. In
Balwant Narayan Bhagde (supra) it was observed that the act of
Tehsildar in going on the spot and inspecting the land was
sufficient to constitute taking of possession. Thereafter, it would
not be open to the Government or the Commission to withdraw
from the acquisition under Section 48(1) of the Act. It was held
thus:
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"28. 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 21of 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 Acquisition Act, LA, 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 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
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possession, without the occupant or the owner ever coming to
know of it."
262. In Tamil Nadu Housing Board v. A. Viswam (supra) it was
held that drawing of Panchnama in the presence of witnesses
would constitute a mode of taking possession. This court
observed:
"9. 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
signed 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 cooperate in taking possession of the land."
(emphasis supplied)
263. In Banda Development Authority (supra) this Court
held that preparing a Panchnama is sufficient to take possession.
This Court has laid down thus:
"37. 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 State
authority concerned 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
authority concerned will, by itself, be not sufficient for
taking possession. Ordinarily, in such cases, the authority
concerned 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
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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(3-A) 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."
.........
265. In Balmokand Khatri Educational and Industrial Trust,
Amritsar v. State of Punjab & Ors168, this Court ruled that under
compulsory acquisition it is difficult to take physical possession of
land. The normal mode of taking possession is by way of drafting
the Panchnama in the presence of Panchas. This Court observed
thus:
"4. It is seen that the entire gamut of the acquisition
proceedings stood completed by 17-4-1976 by which date
possession of the land had been taken. No doubt, Shri
Parekh has contended that the appellant still retained their
possession. It is now well-settled legal position that it is
difficult to take physical possession of the land under
compulsory acquisition. The normal mode of taking
possession is drafting the panchnama in the presence of
panchas and taking possession and giving delivery to the
beneficiaries is the accepted mode of taking possession of
the land. Subsequent thereto, the retention of possession
would tantamount only to illegal or unlawful possession.
5. Under these circumstances, merely because the
appellant retained possession of the acquired land, the
acquisition cannot be said to be bad in law. It is then
contended by Shri Parekh that the appellant-Institution is
running an educational institution and intends to establish
a public school and that since other land was available, the
Government would have acquired some other land leaving
the acquired land for the appellant. In the counter-affidavit
filed in the High Court, it was stated that apart from the
acquired land, the appellant also owned 482 canals 19
marlas of land. Thereby, it is seen that the appellant is not
disabled to proceed with the continuation of the
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educational institution which it seeks to establish. It is then
contended that an opportunity may be given to the
appellant to make a representation to the State
Government. We find that it is not necessary for us to give
any such liberty since acquisition process has already been
completed."
266. In P.K. Kalburqi v. State of Karnataka and Ors., 169, with
respect of mode of possession, this Court laid down as under:
"6. Moreover, the Hon'ble Minister who passed the order
of denotification of the lands in question sought to make a
distinction between symbolic possession and actual
possession and proceed to pass the order on the basis of his
understanding of the law that symbolic possession did not
amount to actual possession, and that the power to
withdraw from the acquisition could be exercised at any
time before "actual possession" was taken. This view
appears to be contrary to the majority decision of this
Court in Balwant Narayan Bhagde v. M.D. Bhagwat,
wherein this Court observed that how such possession
would be taken would depend on the nature of the land.
Such possession would have to be taken as the 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. In the instant case the lands of
which possession was sought to be taken were unoccupied,
in the sense that there was no crop or structure standing
thereon. In such a case only symbolic possession could be
taken, and as was pointed out by this Court in the
aforesaid decision, such possession would amount to
vesting the land in the Government. Moreover, four acres
and odd belonging to the appellant was a part of the larger
area of 118 acres notified for acquisition. We are, therefore,
satisfied that the High Court has not committed any error
in holding that possession of the land was taken on 6-11-
1985. Even the order of the Minister on which
considerable reliance has been placed by the appellant
indicates that possession of the lands was taken, though
symbolic."
269. In Ram Singh v. Jammu Development Authority 171, this
Court stated that the mode of taking possession is by drawing a
Panchnama. Concerning the mode of taking possession in any
other land, law to a similar effect has been laid down in NAL
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Layout Residents Association v. Bangalore Development
Authority172. Certain decisions were cited with respect to other
statutes regarding coalfields etc. and how the possession is taken
and vesting is to what extent. Those have to be seen in the context
of the particular Act. Possession comprises of various rights, thus
it has to be couched in a particular statute for which we have a
plethora of decisions of this Court. Hence, we need not fall back
on the decisions in other cases. The decision in Burrakur Coal Co.
Ltd. (supra) held that a person can be said to be in possession of
minerals contained in a well-defined mining area even though his
actual physical possession is confined to a small portion.
Possession in part extends to the whole of the area. The decision
does not help the cause of the petitioner. Once possession has
been taken by drawing a Panchnama, the State is deemed to be in
possession of the entire area and not for a part. There is absolute
vesting in Government with possession and control free from all
encumbrances as specifically provided in Section 16 of the Act of
1894.
272. The decision in Velaxan Kumar (supra) cannot be said to be
laying down the law correctly. The Court considered the
photographs also to hold that the possession was not taken.
Photographs cannot evidence as to whether possession was taken
or not. Drawing of a Panchnama is an accepted mode of taking
possession. Even after re-entry, a photograph can be taken;
equally, it taken be taken after committing trespass. Such
documents cannot prevail over the established mode of proving
whether possession is taken, of lands. Photographs can be of little
use, much less can they be a proof of possession. A person may re-
enter for a short period or only to have photograph. That would
not impinge adversely on the proceedings of taking possession by
drawing Panchnama, which has been a rarely recognised and
settled mode of taking possession.
279. ... ... .. ... ..Thus, we have no hesitation to overrule
the decisions in Velaxan Kumar (supra) and Narmada Bachao
Andolan (supra), with regard to mode of taking possession. We
hold that drawing of Panchnama of taking possession is the mode
of taking possession in land acquisition cases, thereupon land
vests in the State and any re-entry or retaining the possession
thereafter is unlawful and does not inure for conferring benefits
under section 24(2) of the Act of 2013."
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25 October, 2024
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40. Applying the aforesaid principles of law to the facts of the present
case, it is clear that there is no drawing of panchanama to take
possession, which is a required mode of taking possession in land
acquisition cases. What appears to have been done is without taking
physical possession, symbolical possession is taken, which is not
accepted by the Supreme Court as also held in the decision in Balwant
Narayan Bhagde v. M.D. Bhagwat2, and in terms what was observed by
the Supreme Court that only "paper possession" which was not enough.
The consequence of physical possession not being taken would be that
there would be no lapse of proceedings and the petitioner would become
entitled to higher compensation as observed in paragraph 174 of the
decision in Indore Development Authority Vs. Manoharlal & Ors.
(supra) which reads thus:
"174. A reading of section 24(2) shows that in case possession
has been taken even if the compensation has not been paid, the
proceedings shall not lapse. In case payment has not been made
nor deposited with respect to the majority of the holdings in the
accounts of the beneficiaries, then all the beneficiaries specified in
the notification under Section 4 of the Act of 1894 shall get the
enhanced compensation under the provisions of the Act of 2013.
Section 24(2) not only deals with failure to take physical
possession but also failure to make payment of compensation. If
both things have not been done, there is lapse of the acquisition
proceeding. But where payment has been made though possession
has been taken or payment has been made to some of the persons
but not to all, and it has also not been deposited as envisaged in
the proviso, in that event all beneficiaries (under the same award)
shall get higher compensation. This is because once possession is
been taken, there can be no lapse of the proceedings, and higher
2 (1976) 1 SCC 700
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compensation is intended on failure to deposit the compensation.
Once an award has been passed and possession has been taken,
there is absolute vesting of the land, as such higher compensation
follows under the proviso, which is beneficial to holders. In a case
where both the negative conditions have not been fulfilled, as
mentioned in section 24(2), there is a lapse. Thus, the proviso, in
our opinion is a wholesome provision and is, in fact, a part of
section 24(2); it fits in the context of section 24(2) as deposit is
related with the payment of compensation and lapse is provided
due to non-payment along with not taking possession for five
years or more whereas for non-deposit higher compensation is
provided. Thus, when one of the conditions has been satisfied in
case payment has been made, or possession has not been taken,
there is no lapse of the proceedings as both the negative
conditions must co-exist.
175. When we consider the provisions of section 24(1)(b)
where an award has been passed under section 11 of the Act of
1894, then such proceedings shall continue under the provisions
of the said Act as if it has not been repealed. The only exception
carved out is the period of 5 years or more and that too by
providing a non-obstante clause in Section 24(2) to anything
contained in section 24(1). The non-obstante clause qualifies the
proviso also to Section 24(2). It has to be read as part of Section
24(2) as it is an exception to Section 24(1)(b). In our opinion,
Section 24(1)(b) is a self-contained provision, and is also a part of
the non-obstante clause to the other provisions of the Act as
provided in sub-section (1). Parliament worked out an exception,
by providing a non-obstante clause in section 24(2), to Section
24(1). Compensation is to be paid under Section 24(1)(b) under
the Act of 1894 and not under the Act of 2013. As such Section
24 (2) is an exception to section 24(1)(b) and the proviso is also
an exception which fits in with non-obstante clause of Section 24
(2) only. Any other interpretation will be derogatory to the
provisions contained in Section 24(1)(b) which provides that the
pending proceedings shall continue under the Act of 1894 as if it
had not been repealed, that would include the part relating to
compensation too. Even if there is no lapse of proceedings under
section 24(1)(a), only higher compensation follows under Section
24(1)(a). Section 24(2) deals with the award having been made
five years or before the commencement of the new Act. The
legislative history also indicates/it was intended that five years'
period should be adequate to make payment of compensation and
to take possession. In that spirit, the proviso has been carved out
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as part of section 24(2). Thus when Parliament has placed it at a
particular place, by a process of reasoning, there can be no lifting
and relocation of the provision. To bodily lift it would be an
impermissible exercise. Unless it produces absurd results and does
not fit in the scheme of the Act and the provisions to which it is
attached such an interpretation, doing violence to the express
provision, is not a legitimate interpretative exercise. There is no
need to add it as the proviso to Section 24(1)(b) as it has not been
done by the legislature, and it makes sense where it has been
placed. It need not be lifted."
41. In view of the above discussion, the following conclusions are
required to be drawn:
(I) The impugned order dated 3 December 2008 passed
by the Divisional Commissioner (Rehabilitation) under Section
48(1) of the LA Act is passed without application of mind, when
it failed to give due regard to the slabs being required to be fixed,
and considering the mortgaged land not belonging to the
petitioner to be a part of the petitioner's holdings.
(II) There is a patent error in the Divisional Commissioner
coming to a conclusion that the possession of the land was taken
over by the Land Accquisition Officer, to hold that the
petitioner's application under Section 48(1) was not
maintainable, when the physical possession of the land was not
taken over and it has continued to remain with the petitioner and
as clear from the record. Also the status quo order passed earlier
by the Commissioner and subsequently by this Court, has
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remained to operate without the same being attempted to be
vacated by the State Government. The petitioner accordingly has
continued to remain in possession for a period of 36 years after
passing of the award.
(III) The project affected person Smt. Banubai was allotted
the land without physical possession of the same being taken and
therefore, the land could not be handed over to Smt. Banubai and
her legatees.
(IV) Peculiarly the legatees [respondent nos.4(a) and 4(b)]
under unfounded presumption in law and the revenue entries not
creating any title in them presumed that they have become the
owners of the land, have attempted to sell the very land of the
petitioner, to the petitioner under the agreement dated 30 August
2012 and have received valuable consideration from the
petitioner. Such agreement, by no stretch of imagination, can be
recognized in law. They had no legal rights to sell the land when
their title itself was not perfect, and they could never give the
possession of the land to the petitioner.
42. As noted hereinabove, in the present case, there is no panchanama
under which possession of petitioner's land was taken over by the State,
so as to have a situation that the petitioner illegally entered upon the
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land and has retained possession amounting to any unlawful act. In fact,
in the present case, throughout the possession of the land has remained
with the petitioner and for a long period of 36 years. The conduct of
the State also indicates that the whole purpose for which the acquisition
of the land was made, stood frustrated.
43. The petitioner's land purportedly acquired was a small parcel of
the land which was to enure to the benefit of the project affected person
Smt. Banubai, who has since expired. In fact the legal heirs of such
project affected person has accepted money and have sold the land to
the petitioner which they have admitted and they have entered into the
consent terms as stated in the affidavit. The relevant extracts from the
affidavit filed on behalf of respondent Nos.4(a) are required to be noted
which read thus:
"2. I say that the suit land was allotted to the Respondent No.
4 Banubai, as she was project affected person. I say that said
Banubai has died on 19.4.2006 at Ashta. I say that before her
death, the Respondent No. 4 had executed a will in our favour
out of love and affection, as we were taking care of her during her
old age. I further say that the Respondent No. 4 has died on
19.04.2006, issueless. She has no other legal heirs, except us. I
say that after death of said Banubai, we have applied to revenue
authorities for entering our names to the Revenue Record of the
said land. Pursuant to the same and on the basis of Will deed,
executed in our favour, our names have been entered to the
revenue record of the suit land.
3. I say that though the suit land has been shown in our
names, the actual, physical possession of the land has never been
taken by State Govt. and given to us due to interim orders from
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the Commissioner and thereafter interim order passed by this
Hon'ble Court on 6/1/2009 in the aforesaid writ Petition.
4. I say that, we were in dire financial needs for household
expenses therefore we have taken loan from Bapuso Shinde
Patsanstha and Ashta Lokmanya Nagari Patsanstha, on the suit
land. I further say that due to rising cost of living, burden of
repayment of loan an various household expenses coupled with
the fact that marriage Respondent No. 4A has been fixed and he
has solemnise marriage on 7.12.2012, the Respondents No. 4A
and 4B are ne of money. Therefore with an intention to raise the
necessary fur to repay the bank loan as well as to meet necessary
household expenses, the Respondent No. 4A to 4B were desirous
of selling of the said land to the willing buyer.
.........
7. I say that since the dispute is settled between the parties in
the aforesaid terms, we area also ready to file the minutes of
order. However since the matter is not on board today and it
would be cumbersome to travel all the way to Mumbai again on
the notified date, the Respondent Nos. 4A and 4B have
authorised their advocate Shri. Mahindra Deshumkh make the
statement on our behalf to sign all applications documents
including minutes of order. or consent terms before this Hon'ble
High Court."
44. In so far as the respondent's contention on delay in filing the
present petition is concerned, in our opinion, the same is misconceived
inasmuch as the petitioner being in possession of the land, had locus to
maintain an application under Section 48(1) of the LA Act, which has
been decided by the impugned order and subject matter of challenge in
the present petition. It was certainly a continuous cause of action. Even
otherwise considering the provisions of Section 48(1), once possession
of the land as acquired, is with the petitioner, the petitioner was entitled
to maintain Section 48(1) application praying for withdrawal of the land
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from acquisition. The order on the Section 48(1) application was passed
on 3 December 2008 and the present petition was filed on 9 December
2008. Thus, the contention as urged on behalf of the respondent-State
that the petition is barred by delay considering the date of the Award to
be of 29 December 1988, is not well founded nay untenable. As to
what would be relevant for the Court to consider, is the date of the
impugned order and legality of such order passed under Section 48(1) of
the LA Act.
45. We have observed that the basic objections as raised by the
petitioner which were required to be considered within the parameters
of Section 48(1), have not been considered by the Divisional
Commissioner in passing the impugned order and thus, the impugned
order would necessarily deserve interference in the light of the
discussion.
46. In the aforesaid circumstances, in our opinion, the petitioner has
suffered real injustice inasmuch as an incorrect slab was being applied on
the ground that the petitioner was the owner of the mortgaged land
when he was actually not. The land mortgaged to the petitioner's father
could never been considered to the land of petitioner's ownership and
thus inherently what was legal and proper was to acquire only the land
excess of the notified holding i.e. above 8 acres and 6 gunthas. Thus, in
the peculiar facts and circumstances of the case and taking overall view
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of the matter, it is eminently in the interest of justice, that the petition
needs to succeed. It is accordingly, allowed in terms of the following
order:-
ORDER
i. The impugned order dated 03 December 2008 passed by
respondent no.2/Divisional Commissioner (Rehabilitation), on the
petitioner's application under Section 48(1) of the LA Act, 1894 is
quashed and set aside.
ii. It is declared that the decision to acquire the petitioner's land Gut
No. 903/2 and Gut No. 131/1B+2B+3C situated as Mauje Mardwadi, is
illegal and arbitrary, as prayed by the petitioner in prayer clause (b).
Consequently, the land acquisition award in respect of the petitioner's
land is also rendered illegal.
iii. In the event respondent nos.4(a) and 4(b) have any rights of
allotment of alternate land as project affected persons, they are free to
espouse such rights as the law may permit. All contentions in that
regard are expressly kept open.
iv. The petition stands allowed in the aforesaid terms. No costs.
v. Interim Application No. 680 of 2023 would not survive. It is
accordingly disposed of.
(SOMASEKHAR SUNDARESAN, J.) (G. S. KULKARNI , J.)
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