Bombay High Court
National Highways Authority Of India ... vs Tukaram Raysing Pawara And Others on 6 September, 2024
2024:BHC-AUG:21237
1
14902.23WP+
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.14902 OF 2023
National Highways Authority of India,
Project Implementation Unit,
Dhule, Through its : Project Director
Ajay R. Yadav Age : Years,
"Mansaram Nagar", Circuit House,
Sakri Road, Dhule - 424 002. .. PETITIONER
VERSUS
1] Champalal Najlya Pawara,
Age : Major, Occu : Agriculturist.
R/o. Hadkhed, Tal Shirpur & Dist. Dhule.
2] Tulshiram Najlya Pawara,
Age : Major, Occu : Agriculturist.
R/o. Hadkhed, Tal Shirpur & Dist. Dhule.
3] Rekhabai Najlya Pawara,
Age : Major, Occu : Agriculturist.
R/o. Hadkhed, Tal Shirpur & Dist. Dhule.
4] Sayari Najlya Pawara,
Age : Major, Occu : Agriculturist.
R/o. Hadkhed, Tal Shirpur & Dist. Dhule.
5] Islam Najlay Pawara
Age : Major, Occu : Agriculturist.
R/o. Hadkhed, Tal Shirpur & Dist. Dhule.
6] Najlya Narsing Pawara,
Age : Major, Occu : Agriculturist.
R/o. Hadkhed, Tal Shirpur & Dist. Dhule.
7] Kutbalni Najlya Pawara,
Age : Major, Occu : Agriculturist.
2
14902.23WP+
R/o. Hadkhed, Tal Shirpur & Dist. Dhule.
8] The Competent Authority for Land Acquisition
(NH-3), Collector Office, Dhule.
.. RESPONDENTS
...
Mr.D.S.Manorkar, Advocate for the petitioner
Mr.K.N.Lokhande, AGP for the respondent-State
Mr.Prafulsingh H.Patil & Mr.R.M.Patil, Advocates for the
respondent nos.1 to 3 & 5 to 7.
Mr.S.W.Mundhe, Advocate for the respondent - Competent
Authority.
...
AND
WRIT PETITION NO.14911 OF 2023
National Highways Authority of India,
Project Implementation Unit,
Dhule, Through its : Project Director
Ajay R. Yadav Age : Years,
"Mansaram Nagar", Circuit House,
Sakri Road, Dhule - 424 002. .. PETITIONER
VERSUS
1] Darsing Sakharam Bhil,
Age: 50 years, Occu : Agriculturist,
R/o. Hadkhed, Tal Shirpur & Dist. Dhule.
2] Shevantabai Darsingh Bhil,
Age: 45 years, Occu : Agriculturist,
R/o. Hadkhed, Tal Shirpur & Dist. Dhule.
3] Anju
Age: 40 years, Occu : Agriculturist,
R/o. Hadkhed, Tal Shirpur & Dist. Dhule.
4] Santosh
Age: 35 years, Occu : Agriculturist,
R/o. Hadkhed, Tal Shirpur & Dist. Dhule.
3
14902.23WP+
5] Manju
Age: 40 years, Occu : Agriculturist,
R/o. Hadkhed, Tal Shirpur & Dist. Dhule.
6] Gitabai
Age: 44 years, Occu : Agriculturist,
R/o. Hadkhed, Tal Shirpur & Dist. Dhule.
[Since only the first name of the respondent
Nos.3 to 6 are not mentioned in the Notifications,
Award of Arbitrator, on the Exhibit No.1 of Execution
Petitions Filed by the Decree Holder, the Middle Name
and Surname are not known therefore not mentioned
in the present petition]
7] The Competent Authority for Land Acquisition
(NH-3), Collector Office, Dhule.
.. RESPONDENTS
...
Mr.D.S.Manorkar, Advocate for the petitioner
Mr.K.N.Lokhande, AGP for the respondent-State
Mr.Prafulsingh H.Patil & Mr.R.M.Patil, Advocates for the
respondent nos.1 to 6.
Mr.S.W.Mundhe, Advocate for the respondent - Competent
Authority.
...
AND
WRIT PETITION NO.14924 OF 2023
National Highways Authority of India,
Project Implementation Unit,
Dhule, Through its : Project Director
Ajay R. Yadav Age : Years,
"Mansaram Nagar", Circuit House,
Sakri Road, Dhule - 424 002. .. PETITIONER
VERSUS
4
14902.23WP+
1] Mistar Chotu Pawara,
Age: 45 years, Occu : Agriculturist,
R/o. Natwade, Tal Shirpur & Dist. Dhule.
2] Dhudkibai Mistar Pawara,
Age: 45 years, Occu : Agriculturist,
R/o. Natwade, Tal Shirpur & Dist. Dhule.
3] Jaga Mistar Pawara
Age: 42 years, Occu : Agriculturist,
R/o. Natwade, Tal Shirpur & Dist. Dhule.
4] Sunil Mistar Pawara,
Age: 40 years, Occu : Agriculturist,
R/o. Natwade, Tal Shirpur & Dist. Dhule.
5] Sanjay Mistar Pawara,
Age: 44 years, Occu : Agriculturist,
R/o. Natwade, Tal Shirpur & Dist. Dhule.
6] The Competent Authority for Land Acquisition
(NH-3), Collector Office, Dhule.
.. RESPONDENTS
...
Mr.D.S.Manorkar, Advocate for the petitioner
Mr.K.N.Lokhande, AGP for the respondent-State
Mr.Prafulsingh H.Patil & Mr.R.M.Patil, Advocates for the
respondent nos.1 to 6.
Mr.S.W.Mundhe, Advocate for the respondent - Competent
Authority.
...
AND
WRIT PETITION NO. 14923 OF 2023
National Highways Authority of India,
Project Implementation Unit,
Dhule, Through its : Project Director
Ajay R. Yadav Age : Years,
"Mansaram Nagar", Circuit House,
Sakri Road, Dhule - 424 002. .. PETITIONER
5
14902.23WP+
VERSUS
1] Tukaram Raysing Pawara,
Age: 50 years, Occu : Agriculturist,
R/o. Hadkhed, Tal Shirpur & Dist. Dhule.
2] Kalabai Tukaram Pawara,
Age: 45 years, Occu : Agriculturist,
R/o. Hadkhed, Tal Shirpur & Dist. Dhule.
3] Dilip Tukaram Pawara,
Age: 48 years, Occu : Agriculturist,
R/o. Hadkhed, Tal Shirpur & Dist. Dhule.
4] Paising Tukaram Pawara,
Age: 44 years, Occu : Agriculturist,
R/o. Hadkhed, Tal Shirpur & Dist. Dhule.
5] Ramdilal Tukaram Pawara,
Age: 40 years, Occu : Agriculturist,
R/o. Hadkhed, Tal Shirpur & Dist. Dhule.
6] Raysing Renada Pawara (Deceased)
Age: 44 years, Occu : Agriculturist,
R/o. Hadkhed, Tal. Shirpur & Dist. Dhule.
7] The Competent Authority for Land Acquisition
(NH-3), Collector Office, Dhule.
.. RESPONDENTS
...
Mr.D.S.Manorkar, Advocate for the petitioner
Mr.K.N.Lokhande, AGP for the respondent-State
Mr.Prafulsingh H.Patil & Mr.R.M.Patil, Advocates for the
respondent nos.1 to 6.
Mr.S.W.Mundhe, Advocate for the respondent - Competent
Authority.
...
6
14902.23WP+
AND
WRIT PETITION NO. 14922 OF 2023
National Highways Authority of India,
Project Implementation Unit,
Dhule, Through its : Project Director
Ajay R. Yadav Age : Years,
"Mansaram Nagar", Circuit House,
Sakri Road, Dhule - 424 002. .. PETITIONER
VERSUS
1] Laxmibai Babulal Pawara (Deceased)
Through LRs.
2] Bahadur Babulal Pawara,
Age: 45 years, Occu : Agriculturist,
R/o. Natwade, Tal Shirpur & Dist. Dhule.
3] Amarsing Babulal Pawara,
Age: 40 years, Occu : Agriculturist,
R/o. Natwade, Tal Shirpur & Dist. Dhule.
4] The Competent Authority for Land Acquisition
(NH-3), Collector Office, Dhule.
.. RESPONDENTS
...
Mr.D.S.Manorkar, Advocate for the petitioner
Mr.K.N.Lokhande, AGP for the respondent-State
Mr.Prafulsingh H.Patil & Mr.R.M.Patil, Advocates for the
respondent nos.1 to 3.
Mr.S.W.Mundhe, Advocate for the respondent - Competent
Authority.
...
AND
WRIT PETITION NO. 14912 OF 2023
National Highways Authority of India,
Project Implementation Unit,
Dhule, Through its : Project Director
7
14902.23WP+
Ajay R. Yadav Age : Years,
"Mansaram Nagar", Circuit House,
Sakri Road, Dhule - 424 002. .. PETITIONER
VERSUS
Tukaram Kana Pawara (Deceased)
Through LRs.
1] Sumanbai Tukaram Pawara,
Age: 45 years, Occu : Agriculturist,
R/o. Hadkhed, Tal Shirpur & Dist. Dhule.
2] Parwatibai Tukaram Pawara,
Age: 40 years, Occu : Agriculturist,
R/o. Hadkhed, Tal Shirpur & Dist. Dhule.
3] Deepak Tukaram Pawara,
Age: 35 years, Occu : Agriculturist,
R/o. Hadkhed, Tal Shirpur & Dist. Dhule.
4] Kana Bildar Pawara (Deceased)
Age: 40 years, Occu : Agriculturist,
R/o. Hadkhed, Tal Shirpur & Dist. Dhule.
5] The Competent Authority for Land Acquisition
(NH-3), Collector Office, Dhule.
.. RESPONDENTS
...
Mr.D.S.Manorkar, Advocate for the petitioner
Mr.K.N.Lokhande, AGP for the respondent-State
Mr.Prafulsingh H.Patil & Mr.R.M.Patil, Advocates for the
respondent nos.1 to 3.
Mr.S.W.Mundhe, Advocate for the respondent - Competent
Authority.
...
CORAM : ARUN R. PEDNEKER, J.
DATE : 06.09.2024.
8
14902.23WP+
JUDGMENT :
1] The question of law involved in the present Writ
Petitions is noted below :
Whether the interest payable on the
enhanced compensation granted by the
Arbitrator under the National Highways
Act, 1956 would be from the date of taking
physical possession under Section 3-D
(i.e. after payment of compensation under
Section 3-G) or would be from the date of
Notification under Section 3-D of the
National Highways Act, 1956 till the date
of deposit thereof?
Brief facts leading to filing the present Writ
Petitions are summarized as under :
2] The land of the claimants were acquired from
Shirpur Taluka, District Dhule for the purpose of widening
of National Highway No.3 by the Government of India
through the National Highways Authority of India vide
Notification under Section 3-A bearing S.O.No. 1894 (A),
dated 17.08.2012 under Section 3 -A of the National
Highways Act, 1956 [for short 'the N.H.Act'].
14902.23WP+
3] In pursuance of the above Notification, the joint
measurement survey was carried out. Notification under
Section 3-D of the N.H.Act came to be published vide
Notification S.O. No.2136 (A) dated 10.07.2013. The award
was determined by the Competent Authority for Land
Acquisition, Dhule [for short ' CALA'], dated 03.05.2014
under Section 3-G of the N.H.Act and the petitioners
deposited the compensation as per the award passed by the
CALA, Dhule. The said compensation was also disbursed by
the CALA, Dhule in the month of June, 2014 and the
possession of the acquired land were taken over on payment
of compensation.
4] Being aggrieved by the award passed by the
CALA, Dhule, the respondents filed application under
Section 3-G (5) of the said Act for enhancement of the
compensation granted by the CALA, Dhule before the
Arbitrator and Additional Commissioner at Nashik. The
Arbitrator declared an arbitral award dated 23.04.2019
thereby enhancing the market rate from Rs.355/- to
14902.23WP+
Rs.1364/- [per square meter]. The petitioner filed an
application under Section 34 of the Arbitration and
Conciliation Act, 1996, for setting aside the arbitral award
before the District Court, Dhule bearing Civil M.A.No.
287/2019 and the same was rejected by the District Court.
Thereafter, the petitioner deposited the enhanced
compensation with the Competent Authority for land
Acquisition, Dhule.
5] The respondent filed execution proceedings
bearing Arbitration R.D.No. 08/2021, seeking deposit of the
amount of interest from the date of declaration of the
Notification under Section 3-D till the date of actual deposit
thereof. By the order dated 18.04.2022, the District Court
directed the CALA to calculate the interest on enhanced
compensation as per the Arbitration Award from the date of
taking possession of land under Section 3-D i.e. from
10.07.2013 i.e. from the date of declaration of the
Notification under Section 3-D of the said N.H. Act, till the
date of actual deposit thereof.
14902.23WP+
6] The CALA, Dhule filed an application below
Exh.26 (D), dated 28.04.2022, praying for recall of the
order dated 18.04.2022 passed by the District Court, Dhule.
The CALA, Dhule contended in the said application that
enhanced compensation has to be from the date of taking
possession under Section 3-D means from the date of taking
actual possession at the time of disbursement of the
compensation i.e. on or after 19.06.2014 and not from
10.07.2013. The said application was dismissed by order
dated 21.10.2022. Thus, the petitioner in the present
petition has challenged the order dated 18.04.2022 and
21.10.2022 passed by the District Court in the execution
proceedings filed by the respondent-claimants.
7] Perusal of Section 3-D and 3-H (1) and (5) of
the N.H.Act indicate that on the enhanced amount by the
Arbitrator the interest has to be paid "from the date of
taking possession under section 3-D". It is contended by the
learned counsel for the petitioners that the word 'taking
possession' is important and has to be emphasized. In the
14902.23WP+
instant case at the time of payment of compensation or
thereafter under Section 3-G possession is taken of the
acquired lands and from that date the interest becomes
payable. The possession is not taken in the instant case on
the date of Notification under Section 3-D. It is submitted
that from the date of taking possession under Section 3-D
till the date of the actual deposit thereof, means the date of
taking actual / physical possession and not the date of
declaration of Notification under Section 3-D. As such, the
impugned orders are liable to be set aside. The learned
counsel for the petitioners relies upon the judgment in the
case of Gayabai Digambar Puri (Died) Thr. LR Vs. The
Executive Engineer & Ors. in Diary No. 17566 of 2020,
decided on 03.01.2022, wherein the Hon'ble Supreme Court
held as under :
It is well-settled that the normal rule is
that if on account of acquisition of land a
person is deprived of possession of his
property, he should be paid compensation
immediately and if the same is not paid to
him forthwith, he would be entitled to
interest on the compensation amount from the
date of taking possession of the land till
the date of payment thereof as expounded in
R.L.Jain (D) by Lrs. Vs. D.D.A. & Ors.
14902.23WP+
reported in (2004) 4 SCC 79 (in particular
paragraph 17.1).
8] The learned counsel appearing for the
respondent - Competent Authority has adopted the
argument of the petitioners and submitted that the Court
failed to appreciate that when the Notification under
Section 3-D was published, the land shall vest absolutely in
the Central Government free from all encumbrances and as
per the provisions of the N.H.Act, the acquired land was
continuously with the Central Government but the actual
physical possession is not taken and thus had to be taken
under Section 3-E of the N.H.Act. Section 3-E gives power
to take possession of the acquired land, which is vested in
the Central Government under Section 3-D (2) and on
payment of the amount determined by the competent
authority under Section 3-G of the N.H.Act. The competent
authority under Section 3-E of the N.H.Act may by notice in
writing direct the owner as well as any other person who
may be in possession of such land to surrender or deliver
possession to the competent authority or any person duly
authorised it in this behalf, within sixty days of the service
14902.23WP+
of the notice. The argument made by the learned counsel
for the competent authority is similar to the argument of the
learned counsel for the petitioners.
9] Per contra, the learned counsel for the
respondent-claimants submits that de facto the District
Court has held in the order dated 21.10.2022 that there is
no document at all on record which goes to show that the
acquiring body took the possession of acquired land from
the land-owner on 27.06.2014. It is also observed that the
said possession receipt is photocopy and therefore it cannot
be read in evidence, also it does not bear the date on which
the acquiring body took the actual possession of the
acquired land from the decree holder, and therefore, there is
no document at all on record which goes to show that the
acquiring body took the possession of the acquired land
from the land owner on 27.06.2014. Therefore, argument
raised by the learned counsel for petitioners does not arise
for consideration at all. Next submission of the learned
counsel for the respondent-claimants is that the words used
14902.23WP+
in Section 3-H (5) is that the arbitrator may award interest
at nine per cent per annum on such excess amount from the
date of taking possession under Section 3-D till the date of
the actual deposit thereof. Section 3H (5) does not mention
about taking possession under Section 3-E whereas word
used in said Section are specifically 'taking possession under
Section 3-D'. As such, the notification under Section 3-D is
the actual date, which is relevant date for determining the
enhanced amount of compensation. The learned counsel
further submits that on the notification under Section 3-D,
the land shall vest absolutely in the Central Government
free from all encumbrances and becomes the property of the
Government without any conditions or limitations either as
to title or possessions and as such on the date of notification
the claimants have lost title to the land. Therefore, the
interest on the enhanced amount has to be paid from the
date of notification under Section 3-D. The learned counsel
for the respondent - claimants relies upon the judgments in
the case of Union of India and another Vs. Tarsem Singh
and others reported in (2019) 9 SCC 304, Fruit and
14902.23WP+
Vegetable Merchants Union Vs. Delhi Improvement Trust
reported in (1957) AIR (SC) 344 and in the case of Land
and Building Department through Secretary & anr Vs. Attro
Devi & Ors. in Civil Appeal No.2749/2023 (arising out of
the S.L.P. (Civil) No.7510, decided on 11.04.2023.
10] In the above facts and circumstances, the
question as noted at para no.1, arises for consideration in
the instant case. For determination of the question, as raised
above, at the outset it would be relevant to note here the
relevant provisions of Section 3-D, 3-E, 3-F, 3-G and 3-H (2)
(5) of the National Highways Act, 1956, as under :
3-D. Declaration of acquisition.--(1) Where
no objection under sub-section (1) of
section 3-C has been made to the competent
authority within the period specified
therein or where the competent authority has
disallowed the objection under sub-section
(2) of that section, the competent authority
shall, as soon as may be, submit a report
accordingly to the Central Government and on
receipt of such report, the Central
Government shall declare, by notification in
the Official Gazette, that the land should
be acquired for the purpose or purposes
mentioned in sub-section (1) of section 3A.
(2) On the publication of the
declaration under sub-section (1), the land
14902.23WP+
shall vest absolutely in the Central
Government free from all encumbrances.
(3) Where in respect of any land, a
notification has been published under sub-
section (1) of section 3-A for its
acquisition but no declaration under sub-
section (1) has been published within a
period of one year from the date of
publication of that notification, the said
notification shall cease to have any effect:
Provided that in computing the said
period of one year, the period or periods
during which any action or proceedings to be
taken in pursuance of the notification
issued under sub-section (1) of section 3-A
is stayed by an order of a Court shall be
excluded.
(4) A declaration made by the Central
Government under sub-section (1) shall not
be called in question in any Court or by any
other authority.
3E. Power to take possession.--(1) Where any
land has vested in the Central Government
under sub-section (2) of section 3D, and the
amount determined by the competent authority
under section 3-G with respect to such land
has been deposited under sub-section (1) of
section 3-H, with the competent authority by
the Central Government, the competent
authority may by notice in writing direct
the owner as well as any other person who
may be in possession of such land to
surrender or deliver possession thereof to
the competent authority or any person duly
authorised by it in this behalf within sixty
days of the service of the notice.
(2) If any person refuses or fails to
comply with any direction made under sub-
section (1), the competent authority shall
apply--
14902.23WP+
(a) in the case of any land
situated in any area falling within the
metropolitan area, to the Commissioner
of Police;
(b) in case of any land situated
in any area other than the area
referred to in clause (a), to the
Collector of a District,
and such Commissioner or Collector, as
the case may be, shall enforce the
surrender of the land, to the competent
authority or to the person duly
authorised by it.
3F. Right to enter into the land where land
has vested in the Central Government.-- Where
the land has vested in the Central
Government under section 3-D, it shall be
lawful for any person authorised by the
Central Government in this behalf, to enter
and do other act necessary upon the land for
carrying out the building, maintenance,
management or operation of a national
highway or a part thereof, or any other work
connected therewith.
3G. Determination of amount payable as
compensation.--(1) Where any land is acquired
under this Act, there shall be paid an
amount which shall be determined by an order
of the competent authority.
(2) Where the right of user or any
right in the nature of an easement on, any
land is acquired under this Act, there shall
be paid an amount to the owner and any other
person whose right of enjoyment in that land
has been affected in any manner whatsoever
by reason of such acquisition an amount
calculated at ten per cent, of the amount
determined under sub-section (1), for that
land.
14902.23WP+
3H. Deposit and payment of amount.--
(2) As soon as may be after the amount
has been deposited under sub-section (1),
the competent authority shall on behalf of
the Central Government pay the amount to the
person or persons entitled thereto.
(5) Where the amount determined under
section 3-G by the arbitrator is in excess
of the amount determined by the competent
authority, the arbitrator may award interest
at nine per cent, per annum on such excess
amount from the date of taking possession
under section 3-D till the date of the
actual deposit thereof.
11] From the above noted provisions, it could be
seen from the word used in Section 3-H (5) 'from the date
of taking possession under Section 3-D' is the relevant date,
and needs to be interpreted as to whether the date of
interest on the enhanced amount, would be on the date of
notification under Section 3-D or the date of actual taking
of possession after payment of compensation under Section
3-G. At the out set it is necessary to note that the possession
of lands is not taken on the date of notification under
Section 3-D and is taken subsequently as would be reflected
from the notification dated 19th June, 2024, which is issued
under Section 3E (1) (2), 3 (G), 3 (H) (2) of the N.H.Act. It
14902.23WP+
is stated in the said notice that the claimants should hand
over possession of acquired land to the National Highway
Authority within a period of 60 days from the receipt of the
said notice. The learned counsel for the respondent -
claimants submits that notification under Section 3E of the
N.H.Act is for payment of award amount and not for taking
possession. The possession was not taken immediately after
issuance of notification under Section 3-D of the N.H.Act
and as per the notice dated 19 th June, 2014 the claimants
are called to hand over the possession of the property
within 60 days. As such, it could be safely inferred that the
possession of the acquired land was taken after the date of
notification under Section 3-G i.e. on 19 th June, 2014. Next
question is whether the interest should be paid from 19 th
June, 2014 or from 10.07.2013 on the enhanced amount. It
is to be noticed that in the case Fruit and Vegetable
Merchants Union Vs. Delhi Improvement Trust reported in
(1957) AIR (SC) 344, the Hon'ble Supreme Court has
observed that the word "vest" is a word of variable import.
It is further observed in the said judgment that Sections 16
14902.23WP+
and 17 of the Land Acquisition Act (Act I of 1894), provide
that the property so acquired, upon the happening of
certain events, shall "vest absolutely in the Government free
from all encumbrances". In the cases contemplated by
Sections 16 and 17 the property acquired becomes the
property of Government without any conditions or
limitations either as to title or possessions. The Supreme
Court in the case of Land and Building Department through
Secretary & another (supra) has referred to the judgment
in the case of Indore Development Authority Vs. Manoharlal
and others [reported in [2020] 8 SC 129] wherein it is held
that when the State has acquired the land and award has
been passed, land vests in the State Government free from
all encumbrances. The act of vesting of the land in the State
is with possession, any person retaining the possession,
thereafter, has to be treated as trespasser and has no right
to possess the land which vests in the State free from all
encumbrances and it is also held that not only the
possession vests in the State but all other encumbrances are
also removed forthwith. The title of the landholder ceases
14902.23WP+
and the state becomes the absolute owner and in possession
of the property. Thereafter there is no control of the
landowner 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. Indore Development Authority
[supra] at para nos.244, 245 and 256 has observed as
under:
244. Section 16 of the Act of 1894 provided
that possession of land may be taken by the
State Government after passing of an award
and thereupon land vest free from all
encumbrances in the State Government.
Similar are the provisions made in the case
of urgency in Section 17(1). The word
"possession" has been used in the Act of
1894, whereas in Section 24(2) of Act of
2013, the expression "physical possession"
is used. It is submitted that drawing of
panchnama for taking over the possession is
not enough when the actual physical
possession remained with the landowner and
Section 24(2) requires actual physical
possession to be taken, not the possession
in any other form. When the State has
acquired the land and award has been passed,
land vests in the State Government free from
all encumbrances. The act of vesting of the
land in the State is with possession, any
person retaining the possession, thereafter,
has to be treated as trespasser and has no
right to possess the land which vests in the
State free from all encumbrances.
14902.23WP+
245. The question which arises whether there
is any difference between taking possession
under the Act of 1894 and the expression
"physical possession" used in Section 24(2).
As a matter of fact, what was contemplated
under the Act of 1894, by taking the
possession meant only physical possession of
the land. Taking over the possession under
the Act of 2013 always amounted to taking
over physical possession of the land. When
the State Government acquires land and
drawns up a memorandum of taking possession,
that amounts to taking the physical
possession of the land. On the large chunk
of property or otherwise which is acquired,
the Government is not supposed to put some
other person or the police force in
possession to retain it and start
cultivating it till the land is used by it
for the purpose for which it has been
acquired. The Government is not supposed to
start residing or to physically occupy it
once possession has been taken by drawing
the inquest proceedings for obtaining
possession thereof. Thereafter, if any
further retaining of land or any re-entry is
made on the land or someone starts
cultivation on the open land or starts
residing in the outhouse, etc., is deemed to
be the trespasser on land which in
possession of the State. The possession of
trespasser always inures for the benefit of
the real owner that is the State Government
in the case. Xxxx
256. 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
14902.23WP+
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
landowner 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.
(emphasis supplied)
12] The Constitution Bench in the case of Indore
Development Authority [supra] has held that the word
"possession" has been used in Sections 16 and 17 of the Act
of 1894, whereas in Section 24 (2) of Act of 2013, the
expression 'physical possession' is used. The Court further
held that when the State has acquired the land and award
has been passed, land vests in the State Government free
from all encumbrances. The act of vesting of the land in the
State is with possession, any person retaining the
possession, thereafter, has to be treated as trespasser and
has no right to possess the land which vests in the State free
14902.23WP+
from all encumbrances.
13] Under the National Highways Act, 1956, under
section 3-H (5) the words used are "taking possession under
Section 3-D" and not taking "physical possession under
Section 3-D".
14] In view of law discussed in the case of Indore
Development Authority [supra] when the State has acquired
the land and award has been passed, the land vests in the
State Government free from all encumbrances and the act of
vesting of the land in the State is with possession. There is
no requirement of taking physical possession for the
purpose of payment of additional interest component. The
argument of the National Highway Authority that the
interest component has to be paid from the date of actual
physical possession, is erroneous. It is provided in Section
3-F that where the land has vested in the Central
Government under Section 3-D, it shall be lawful for any
person authorised by the Central Government in this behalf,
to enter and do other act necessary upon the land for
14902.23WP+
carrying out the building, maintenance, management or
operation of a national highway or a part thereof, or any
other work connected therewith, meaning thereby that, on
the land having vested in the Central Government under
Section 3-D, it shall be lawful for any person authorised by
the Central Government, to enter and do other act
necessary upon the land for carrying out the building,
maintenance, management or operation of a national
highway or a part thereof, or any other work connected
therewith. On the date of Notification under Section 3-D,
the land has absolutely vested with the Central Government
in terms of Section 3-D (2) of the N.H.Act and the land shall
vest absolutely in the Central Government free from all
encumbrances and the Central Government having right to
enter and to do construction thereupon. The claimants have
lost their lands from the date of notification under Section
3-D along with its possession. It is not required that the
physical possession has to be handed over in terms of the
judgment in the case of Indore Development Authority
[supra]. Thus, the District Court has thus rightly concluded
14902.23WP+
that the interest on the enhanced amount has to be paid
from the date of notification under Section 3-D of the
N.H.Act and not from the date of taking physical possession
after deposit of compensation under Section 3-G of the N.H.
Act.
15] The reliance placed by the learned counsel for
the petitioners on the judgment in the case of Gayabai
Digambar Puri [Died] Thr.LR. Vs. The Executive Engineer &
Ors. [supra] is of no assistance as in that case the possession
of the land was taken prior to the award under the Land
Acquisition Act. The Hon'ble Supreme Court in the case of
Gayabai Digambar Puri [supra] relying upon the judgment
in the case of R.L.Jain (D) by Lrs. Vs. D.D.A. & Ors reported
in (2004) 4 SCC 79 has held that a person, who is deprived
of possession of his property, should be paid compensation
immediately and if the same is not paid to him forthwith, he
would be entitled to interest on the compensation amount
from the date of taking possession of the land till the date of
payment thereof. In the above case, the possession is taken
14902.23WP+
prior to the date of award, as such, the Court has concluded
that the interest has to be paid from the date of possession
and the same is not applicable to the instant case. Thus, the
reliance placed on the judgment of Gayabai [supra] by the
learned counsel for the petitioner is of no assistance.
16] The question of law raised above is answered
accordingly. Hence, all the Writ Petitions are dismissed.
[ARUN R. PEDNEKER]
JUDGE
DDC
