Hemraj Chandrakar vs State Of Chhattisgarh
2022 Latest Caselaw 4921 Chatt

                                    1


                                                                      AFR
          HIGH COURT OF CHHATTISGARH, BILASPUR


                    Writ Appeal No. 467 of 2016


1. Hemraj Chandrakar S/o Shri Bhukhan Lal Chandrakar, Aged about

  30 years, R/o village Parsada, Tahsil Arang, District Raipur,

  Chhattisgarh.

2. Prakash Nishad S/o Ganga Prasad Nihad, aged about 42 years, R/o

  Gram Parasada, Tahsil Arang, District Raipur, Chhattisgarh.

                                                            ---- Appellants

                               Versus

1. State of Chhattisgarh through the Secretary, Department of Housing

  and Environment, Mantralaya, Naya Raipur, Chhattisgarh.

2. Department of Agriculture and Animal Husbandry, Through the

  Secretary, Mantralaya, Naya Raipur, Chhattisgarh.

3. District Collector cum Officiating Dy. Secretary, Government of

  Chhattisgarh, Collectorate, Raipur, Chhattisgarh.

4. Naya Raipur Development Authority, through its Chief Executive

  Officer, New Rajendra Nagar, in front of Vijeta Complex, RDA

  Building, Raipur, Chhattisgarh.

5. Land Acquisition Officer/Sub Divisional Officer, Tahsil Arang,

  Abhanpur, Civil and Revenue District Raipur, Chhattisgarh.

6. Commissioner, Raipur, District Raipur, Chhattisgarh.

                                                          ---- Respondents

(Cause Title taken from Case Information System)

For Appellant : Mr. Varun Sharma and Mr. Krishna Tandon, Advocates For Respondents No. : Mr. Vikram Sharma, Deputy Government 1, 2, 3, 5 and 6 Advocate.

For Respondent No. 4 : Mr. Sumesh Bajaj, Advocate.

Date of Hearing               :     22.06.2022
Date of Judgment              :     02.08.2022

Hon'ble Mr. Arup Kumar Goswami, Chief Justice Hon'ble Mr. Parth Prateem Sahu, Judge

C.A.V. Judgment

Per Arup Kumar Goswami, Chief Justice

Heard Mr. Varun Sharma and Mr. Krishna Tandon, learned

counsel, appearing for the appellants. Also heard Mr. Vikram Sharma,

learned Deputy Government Advocate, appearing for the respondents

No. 1, 2, 3, 5 and 6 as well as Mr. Sumesh Bajaj, learned counsel for the

respondent No. 4.

2. This writ appeal is presented by the writ petitioners against an

order dated 08.04.2016 passed by the learned Single Judge in WPC No.

696/2016 whereby the writ petition was dismissed on the ground of delay

and laches.

3. This writ appeal was earlier dismissed by a judgment dated

28.09.2016. This Court, while dismissing the appeal, at paragraph 4 of

the judgment, had observed as follows:

"4. We have perused the record of the writ petition and in

the writ petition there is not a single averment that the

possession of the land has not been taken. In the writ

petition, there is no averment much less any proof of the

fact that this land has been taken over. Therefore, we

have no reason to discard clear cut finding given by the

Learned Single Judge that the land has been used for

development of Naya Raipur. Therefore, we find no merit

in the appeal, which is accordingly dismissed."

4. Against the aforesaid judgment, the appellants had preferred a

Special Leave Petition (Civil) No. 36272/2016 before the Hon'ble

Supreme Court which was registered as Civil Appeal No. 3778/2018.

5. The Hon'ble Supreme Court in the judgment dated 13.04.2018

observed that in column No. 3 (particulars of the cause/order against

which the petition is made) of the writ petition, paragraph 4 of the

application dated 29.02.2016 for grant of interim relief and paras 1.1,

1.20, 2.2, 2.4 and 2.7 of the writ appeal, the writ petitioners had made

specific averments that they are in possession of the land in dispute and

accordingly, holding that the aforesaid statements had escaped the

attention of the Division Bench, set aside the order dated 28.09.2016

passed in the writ appeal and remanded the case for fresh disposal in

accordance with law. At paragraph 15 of the judgment dated 13.04.2018,

the Hon'ble Supreme Court observed as follows:

"15. We, however, leave all the questions including the

maintainability of the writ petition on any other grounds

open for its decision. Indeed, it is for the Division Bench to

decide the issues, while deciding the writ appeal,

uninfluenced by any of our observations made in this

judgment."

6. The case of the writ petitioners, as projected in the writ petition,

is that they are agriculturists and are land owners in village Parsada,

Tehsil Arang. On a request made by Naya Raipur Development

Authority, Raipur, (for short, NRDA), the Land Acquisition Officer/

Sub-Divisional Officer, Arang, registered a case on 16.03.2011 for

compulsory acquisition of total 9.62 hectares of land in 23 Khasras of

village Parsada for construction of a sports village (Khel Gram).

7. Though not stated in the writ petition, in the writ appeal, it is

stated that while the petitioner No. 1 holds land measuring 0.65 hectares

in Khasra No. 356, petitioner No. 2 holds land measuring 0.37 hectare in

Khasra No. 370, 1.88 hectares in Khasra No. 407, and 0.20 hectares in

Khasra No. 419, totaling 2.45 hectares.

8. In the writ petition, the following prayers were made:

"(i) That, this Hon'ble Court may kindly be pleased to

call for the entire records pertaining to the Land

Acquisition Case No. 18A/82 year 2010-2011, in village

Parsada, PH No. 21, Tahsil Aarang, District Raipur.

(ii) That, this Hon'ble Court may be pleased to quash

the entire land Acquisition proceedings in Land

Acquisition Case No. 18A/82 year 2010-2011 in village

Parsada, PH No. 21, Tahsil Arang, District Raipur.

(iii) That, this Hon'ble Court may kindly be pleased to

quash the award dated 4/7/2012 passed under Section 11

of the Land Acquisition Act, 1894 in Land Acquisition

Case No. 18A/82 year 2010-2011, in village Parsada, PH

No. 21, Tahsil Arang, District Raipur.

(iv) That, this Hon'ble Court may kindly be pleased to call

for the land record of village Kotni.

(v) That, this Hon'ble Court may be pleased to pass any

other relief that this Hon'ble Court may please deem fit

and proper."

9. The learned Single Judge, relied upon the judgments in

(i) Municipal Corporation of Greater Bombay v. Industrial

Development Investment Co. Pvt. Ltd., reported in (1996) 11 SCC 501,

State of Rajasthan v. D.R.Laxmi & Others, reported in JT 1996 (9)

SC 327, Municipal Council Ahmednagar v. Shah Hyder Beig,

reported in (2000) 2 SCC 48, wherein the Hon'ble Supreme Court

observed that once the award is passed and possession of the land is

taken, the Court ought not to exercise its power to quash the award; (ii)

State of Karnataka v. Sangappa Dayappa Biradar, reported in (2005)

4 SCC 264, wherein it was observed that once the award is accepted, no

legal right survives for claiming a reference to the Civil Court; (iii) Swaika

Properties Pvt. Ltd. v. State of Rajasthan, reported in (2008) 4 SCC

696, wherein the Hon'ble Supreme Court held that any writ petition filed

after passing of the award which has become final, deserves to be

dismissed on the ground of delay and laches; (iv) Royal Orchid Hotels

Limited v. G. Jayarama Reddy, reported in (2011) 10 SCC 608,

wherein it was observed that the High Court may not enquire into belated

and stale claim and deny relief to a litigant if he is found guilty of delay

and laches as a person who is not vigilant and does not seek

intervention of the Court within reasonable time from the date of accrual

of cause of action or alleged violation of the constitutional, legal or other

right, is not entitled to relief under Article 226 of the Constitution of India

as well as on the ground that in the intervening period, rights of third

parties may have crystallized; and the decision in (v) Sulochana

Chandrakant Galande v. Pune Municipal Transport, reported in (2010) 8

SCC 467, wherein the Hon'ble Supreme Court had observed that once

the land is acquired, it vests in the State free from all encumbrances and

once the land vests in the State, the person whose land is acquired

becomes a persona non grata and he has a right to get compensation

only for the same and that the person interested cannot claim the right of

restoration of land on any ground, whatsoever.

10. Taking note of the fact that the writ petition was filed almost

after four years of passing of the award, and opining that much

developments had taken place after the possession had been taken

over, the learned Single Judge dismissed the writ petition on the ground

of delay and laches.

11. It is submitted by Mr. Varun Sharma, learned counsel for the

appellants that when the NRDA had prepared the Naya Capital City

Raipur Development Plan in the year 2003, village Kotni was included in

the said plan but subsequently, with the change of the Government, the

plan was changed in the year 2008 excluding village Kotni. It is further

submitted that as required under the provisions of Section 50 and 56 of

the Nagar Tatha Gram Nivesh Adhiniyam, 1973, for short, Adhiniyam of

1973, no proposal was put forward by the NRDA to the land owners

indicating its intention to acquire the land by mutual consent or

agreement and straightway acquisition proceedings were initiated under

the Land Acquisition Act, 1894 (for short, the Act of 1894), and therefore,

the acquisition proceedings initiated by the State Government is bad in

law. It is also submitted that invocation of urgency clause under Section

17 of the Act of 1894, in the instant case, was not justified. Further

contention of Mr. Sharma is that the Sub Divisional Officer,

Arang/Abhanpur was not appointed as the Land Acquisition Officer by

the appropriate Government to perform the duties and functions of the

Collector. He reiterates the submission that possession of the land has

not been taken over from the petitioners.

12. Mr. Sharma places reliance on the decisions of the Hon'ble

Supreme Court in Banda Development Authority, Banda v. Motilal

Agrawal & Others, reported in (2011) 5 SCC 394 and Patasi Devi v.

State of Haryana & Others, reported in (2012) 9 SCC 503.

13. As no counter-affidavit was filed in the writ petition, after the

remand from the Hon'ble Supreme Court, the respondent No. 4 has filed

a reply to which rejoinder has also been filed by the writ petitioners.

14. Mr. Sumesh Bajaj, learned counsel appearing for the

respondent No. 4 submits that the possession of the land in dispute was

duly taken in the year 2012 itself and in this connection, he has drawn

attention to Annexure A/4 of the writ appeal. It is submitted that the land

in question which was acquired is in the vicinity of the International

Cricket Stadium and therefore, the same was required for development

of Khel Gram. Opportunity was granted to the land owners to sell their

lands to respondent No. 4 with mutual consent and in response to the

publication made in this regard, about 6,500 land owners had sold their

plots of land to the respondent No. 4 by mutual consent. He contends

that provisions of Section 50 and 56 of the Adhiniyam of 1973 are not at

all attracted in the facts and circumstances of the case and that the Sub-

Divisional Officer (Revenue)/Deputy Collector is duly delegated with the

powers of Collector in the State of Chhattisgarh. It is submitted that the

land acquisition proceedings were initiated and concluded in accordance

with law and there is no illegality in the entire proceedings. It is submitted

that the writ appeal is liable to be dismissed on the ground of delay and

laches as dismissed by the learned Single Judge as there is no

explanation whatsoever as to why the writ petition came to be filed after

a period of four years from the date of passing of the award. It is further

submitted by him that there is also no averment, either in the writ petition

or in the writ appeal, that the writ petitioners had not received or

accepted the compensation amount. It is submitted that the documents

filed by the writ petitioners are self-serving documents and do not

establish their possession. Even otherwise, for gross delay and creation

of third party rights, the appeal is liable to be dismissed. Mr. Bajaj places

reliance on a Constitution Bench decision of the Hon'ble Supreme Court

in Indore Development Authority v. Manoharlal & Others etc. reported in

AIR 2020 SC 1496, specifically drawing attention of the Court to the

observations made by the Hon'ble Supreme Court in respect of issue

No. 4, relating to mode of taking possession under the Act of 1894 from

paragraphs 244 to 277.

15. In reply, Mr. Varun Sharma submits that as the possession of

the lands of the petitioners had not been taken physically and the same

is shown to have been taken over by only drawing a 'Panchnama', it has

to be understood that the petitioners are in lawful possession of the land

in question.

16. We have considered the submissions of the learned counsel for

the parties and have perused the materials on record.

17. It is seen that a letter dated 01.09.2012 was issued by the Chief

Executive Officer, NRDA to the Sub-Divisional Officer (Revenue) / Land

Acquisition Officer, Aarang/Abhanpur with reference to delivery of

possession of the plots of land. Pursuant to the said letter, the actual

possession of the plots of land were handed over to the prescribed

officer of the NRDA on the spot on 24.12.2012 which is evident from the

"Possession Certificate" filed as Annexure A/4. Although, the materials

on record do not indicate as to when the State had taken possession of

the acquired land, materials on record demonstrate that the State had

handed over the possession of the acquired plots of land including the

plots of the petitioners to the NRDA on 24.12.20212.

18. In Patasi Devi (supra), noticing that no evidence was produced

by the official respondents before the High Court to show that

possession of the appellant's land and the house constructed over it had

been taken by the competent authority between 09.12.2009, i.e., the

date on which the award was passed and 20.01.2010, i.e., the date on

which the writ petition was filed, it was observed that the High Court was

not justified in holding that the writ petition of the appellant was not

maintainable because the same was filed after the passing of the award.

19. In Patasi Devi (supra), the Hon'ble Supreme Court had relied

upon the earlier judgment in the case of Raghbir Singh Sehrawat v.

State of Haryana, reported in (2012) 1 SCC 792. In Raghbir Singh

Sehrawat (supra), the High Court had non-suited the writ petitioner on

the ground that possession of the acquired land had been taken by

officers concerned and the same would be deemed to have vested in the

State Government free from all encumbrances. As the respondents had

not produced any other evidence to show that actual possession of the

land, on which crop was standing, had been taken after giving notice to

the appellant or that he was present at the site when the possession of

the acquired land was delivered to the Senior Manager of Haryana State

Industrial and Infrastructure Development Corporation (HSIIDC) and in

view of the fact that crop was standing on the land, the Hon'ble Supreme

Court opined that the exercise undertaken by the respondents showing

delivery of possession cannot but be treated as farce and

inconsequential.

20. In Indore Development Authority (supra), the Hon'ble Supreme

Court overruled the decisions rendered in Velaxan Kumar v Union of

India, reported in (2015) 4 SCC 325 and State of Madhya Pradesh v.

Narmada Bachao Andolan & Others, reported in (2011) 7 SCC 639, with

regard to the mode of taking possession and it was categorically held

that drawing of Panchnama of taking possession is the mode of taking

possession in land acquisition cases, and thereafter, the land vests in

the State and any re-entry or retaining the possession is unlawful and

does not inure for conferring benefits under section 24(2) of the Right to

Fair Compensation and Transparency in Land Acquisition, Rehabilitation

and Resettlement Act, 2013.

21. The Hon'ble Supreme Court, in Indore Development

Authority (supra), took note of the judgment rendered in Banda

Development Authority (supra). It was observed as under:

"261. In Banda Development Authority (2011 AIR SCW

2835, Para 34) (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 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."

22. The Issue No. 4 as framed in Indore Development Authority

(supra), reads as follows:

"In re: Issue No. 4 : mode of taking possession under the

Act of 1894"

23. It will be appropriate to quote paragraphs 244, 247, 253, 256,

271, 272, 276 and 277 in the context of the above issue. They read 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

the Act of 2013, the expression "physical possession" is

used. It is submitted that drawing of panchnama is not

enough when the actual physical possession remained

with the land owner 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 a trespasser and has no right to possess the

land which vests in the State free from all encumbrances.

xxx xxx xxx

247. The concept of possession is complex one. It

comprises the right to possess and to exclude others,

essential is animus possidendi. Possession depends

upon the character of the thing which is possessed. If the

land is not capable of any use, mere non-user of it does

not lead to the inference that the owner is not in

possession. The established principle is that the

possession follows title. Possession comprises of the

control over the property. The element of possession is

the physical control or the power over the object and

intention or will to exercise the power. Corpus and animus

are both necessary and have to co-exist. Possession of

the acquired land is taken under the Act of 1894 under

Section 16 or 17 as the case may be. The government

has a right to acquire the property for public purpose. The

stage under Section 16 comes for taking possession after

issuance of notification under Section 4(1) and stage of

Section 9(1). Under section 16, vesting is after passing of

the award on taking possession and under section 17

before passing of the award.

xxx xxx xxx

253. Under section 16 of the Act of 1894, vesting of title in

the Government, in the land took place immediately upon

taking possession. Under Sections 16 and 17 of the Act

of 1894, the acquired land became the property of the

State without any condition or limitation either as to title or

possession. Absolute title thus vested in the State.

xxx xxx xxx

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 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.

xxx xxx xxx

271. In the decision in Raghbir Singh Sehrawat v. State of

Haryana, the observation made was that it is not possible

to take the possession of entire land in a day on which

the award was declared, cannot be accepted as laying

down the law correctly and same is contrary to a large

number of precedents. The decision in Narmada Bachao

Andolan v. State of M.P, is confined to particular facts of

the case. The Commissioner was appointed to find out

possession on the spot. DVDs and CDs were seen to

hold that the landowners were in possession. The District

Judge, Indore, recorded the statements of the tenure-

holder. We do not approve the method of determining the

possession by appointment of Commissioner or by

DVDs and CDs as an acceptable mode of proving taking

of possession. The drawing of Panchnama

contemporaneously is sufficient and it is not open to a

court Commissioner to determine the factum of

possession within the purview of Order XXVII, Rule 9

CPC. Whether possession has been taken, or not, is not

a matter that a court appointed Commissioner cannot

opine. However, drawing of Panchnama by itself is

enough and is a proof of the fact that possession has

been taken.

272. It was submitted on behalf of land owners that under

Section 24 the expression used is not possession but

physical possession. In our opinion, under the Act of 1894

when possession is taken after award is passed under

section 16 or under section 17 before the passing of the

award, land absolutely vests in the State on drawing of

Panchnama of taking possession, which is the mode of

taking possession. Thereafter, any re-entry in possession

or retaining the possession is wholly illegal and

trespasser's possession insures for the benefit of the

owner and even in the case of open land, possession is

deemed to be that of the owner. When the land is vacant

and is lying open, it is presumed to be that of the owner

by this Court as held in Kashi Bai v. Sudha Rani Ghose

{AIR 1958 SC 434}. Mere re-entry on Government land

once it is acquired and vests absolutely in the State

(under the Act of 1894) does not confer, any right to it and

Section 24(2) does not have the effect of divesting the

land once it vests in the State.

xxx xxx xxx

276. We have seen the blatant misuse of the provisions

of section 24(2). Acquisitions that were completed several

decades before even to say 50-60 years ago, or even as

far back as 90 years ago were questioned; cases filed

were dismissed. References were sought claiming higher

compensation and higher compensation had been

ordered. Now, there is a fresh bout of litigation started by

erstwhile owners even after having received the

compensation in many cases by submitting that

possession has not been taken and taking of possession

by drawing a Panchnama was illegal and they are in

physical possession. As such, there is lapse of

proceedings.

277. The court is alive to the fact that there are large

number of cases where, after acquisition land has been

handed over to various corporations, local authorities,

acquiring bodies, etc. After depositing compensation (for

the acquisition) those bodies and authorities have been

handed possession of lands. They, in turn, after

development of such acquired lands have handed over

properties; third party interests have intervened and now

declaration is sought under the cover of section 24(2) to

invalidate all such actions. As held by us, section 24 does

not intend to cover such cases at all and such gross

misuse of the provisions of law must stop. Title once

vested, cannot be obliterated, without an express legal

provision; in any case, even if the landowners' argument

that after possession too, in case of non- payment of

compensation, the acquisition would lapse, were for

arguments' sake, be accepted, these third party owners

would be deprived of their lands, lawfully acquired by

them, without compensation of any sort. Thus, we have

no hesitation to overrule the decisions in Velaxan Kumar

(AIR 2015 SC 1462) (supra) and Narmada Bachao

Andolan (AIR 2011 SC 1989) (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."

24. A perusal of the above goes to show that possession of the

land may be taken by the State Government after passing of an award

and thereupon land vests free from all encumbrances in the State

Government. Similar are the provisions made in the case of urgency in

Section 17(1) of the Act of 1894. 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 occurs. It is an indefeasible

right and vesting is with possession thereafter. 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. Even if the earlier

land-owner has retained the possession or otherwise trespassed upon it

after possession has been taken by the State, he is a trespasser. It was

categorically held at paragraph 277 that drawing of Panchmana 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.

25. Admittedly, the writ petition was filed after more than four years

of passing of the award and taking of possession by the NRDA. In view

of the decision in Indore Development Authority (supra), the assertion of

possession by the appellants in the facts and circumstances of the case

becomes irrelevant. The appellants are conspicuously silent with regard

to the aspect as to whether they have accepted or not accepted the

compensation amount. As held by the learned Single Judge, there was

a gross delay and laches on the part of the appellants in approaching the

Court and therefore, we are of the opinion that no interference is called

for with regard to the order of the learned Single Judge.

26. In view of the above determination, no occasion arises for this

Court to dwell upon the contentions advanced questioning the validity of

the acquisition proceedings.

27. Resultantly, the writ appeal is dismissed. No cost.

                     Sd/-                                          Sd/-
             (Arup Kumar Goswami)                         (Parth Prateem Sahu)
               CHIEF JUSTICE                                    JUDGE




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