Jammu Development Authority vs Ram Singh

Hasnain Massodi, J.—Jammu Development Authority appellant herein, in 1997-98, decided to develop a housing colony at Channi Colony

under name of Trikuata Nagar Housing Colony Jammu. To give practical shape to decision taken, a large area of land was acquired for

development and thereafter allotment to the aspirants for residential plots in the proposed colony. Respondents land measuring 15 Kanals and 14

Marlas comprising Survey No.3 Min and 06 Kanals and 02 Marlas comprising Survey No.4 Min at Channi Rama Tehsil Jammu, was also

acquired in connection with development of housing colony. Respondents are refugees from other- side of the ceasefire line, (now Line of Actual

Control) and the land in question was allotted to them under Cabinet Decision No.578-C as part of rehabilitation package given to refugees from

Pakistan and Pakistan Occupied Kashmir.

The acquisition proceedings were completed, compensation assessed, and award made by Collector, Land Acquisition, PWD, Jammu.

However, even after completion of acquisition process, respondents retained possession of part of acquired land alongwith Kacha houses existing

therein. There is disagreement between parties as regards actual area presently in possession of respondents. Appellant authority insists that only

Kacha house with land underneath to it is in possession of respondents. If respondents are to be believed they are in possession of 03 Kanals &

14 Marlas comprising Survey no.3 Min and 02 Kanals & 10 Marlas comprising Survey no.4 with Kacha Houses standing thereon. Respondent

no.2 claims to have even constructed a Pacca house on land in question.

Respondents, apprehending dispossession from the part of the acquired land in there possession, filed writ petition against appellant authority,

being OWP no.459/2004.

Respondents/writ petitioners pleaded that acquisition was restricted to area measuring 12 Kanals comprising Survey no.3 and 03 Kanals & 12

Marlas comprising Survey no.4 Min and rest of land i.e. 03 Kanals & 14 Marlas out of Survey no.3 and 02 Kanals & 10 Marlas comprising

Survey no.4 Min was allowed to be retained by respondents respectively on which respondents much before acquisition proceedings constructed

Kacha house used by them for residential purposes. Respondent no.2 is stated to have constructed a Pacca house on plot of land comprising

Survey no.4 Min in her possession. Reason for allowing respondents to retain possession of aforesaid land, according to respondents, was its use

for residential purposes.

Respondents/writ petitioners alleged that with unprecedented hike in real estate value, officers and officials of Authority were keen to dispossess

them from land in their possession. It was next urged that even if land in question was included in Award rendered by Collector, Land Acquisition,

PWD, on finalization of acquisition proceedings, still as officers of Authority lacked power to interfere with respondents possession over land

inasmuch as Authority having not taken over its possession, respondents were not divested of land even after award was passed. It was insisted

that at no point of time possession of land in question was taken over by Authority or its officers. It was also pleaded that land having been allotted

to respondents as rehabilitation package, they had a right to continue in possession of land, retained by them as it was otherwise within limits

prescribed under Government orders issued from time to time on the subject. Respondents on the strength of averments made in petition sought

writ, direction or order, commanding respondents to refrain from dispossessing or otherwise disturbing respondents possession over the land in

dispute as described in Annexure-A to petition.

Appellant writ respondent, opposed writ petition on the ground that whole land comprising Survey no's. 3 Min 4 Min measuring 21 Kanals 16

Marlas (15 Kanals & 14 Marlas Survey No.3 Min and 06 Kanals & 02 Marlas Survey No.4 Min) allotted to respondents in wake of migration in

1947, was acquired in connection with development of Trikuta Nagar Housing Colony at Channi Rama and that no part of land as suggested in

writ petition was outside purview of acquisition proceedings and Award made on finalization of such proceedings. It was, however, admitted that

respondents are having small Kacha houses over land in question, proposed to be removed and respondents/writ petitioners evicted from the land.

Appellant/writ respondent insisted that Authority took over possession of land i.e. 15 Kanals & 14 Marlas comprising Survey No.3 and 06 Kanals

& 02 Marlas comprising Survey No.4 and continued in its possession except the part on which Kacha houses exist. It was pleaded that as subject

matter of writ petition was acquired, respondents/writ petitioners ceased to have any right, title or interest in the land and were liable to be evicted.

Appellant/writ respondent insisted that it was under legal obligation to get acquired land vacated and that respondents/writ petitioners were not

owners of land in question and that land was owned by Evacuees, was administered by Evacuees Department and allotted to respondents/writ

petitioners.

Writ court on 24th November 2008, proceeding on assumption that respondents/writ petitioners possession over a portion of land was

admitted by appellant/writ respondents and dispute, if any, related only to the extent of land in their possession, vide order dated 24th November

2008, appointed Ms.Shivani Jalali, Advocate, as Local Commissioner. She was asked to visit land in dispute and report about exact area of land

on spot in possession of respondents/writ petitioners. She was permitted to utilise services of concerned Patwari to find out as to how much was in

actual physical possession of respondents/writ petitioners.

Commissioner, in compliance of order dated 24th November 2008, made spot inspection on 13th December 2008 and 21st December 2008

and reported that as per measurement made with assistance of Patwari, Channi Rama, respondent/ writ petitioner no.1 was in actual physical

possession of area measuring 04 Kanals comprising Survey no.3 Min and respondent/writ petitioner no.2 in actual physical possession of area

measuring 03 Kanals comprising Survey no.04 Min. Commissioner appended a rough sketch of land in dispute as Annexure D&E to the report.

Parties, though given opportunity to file objections to the report, did not avail the opportunity so given.

Writ court vide order dated 25th February 2010 disposed of writ petition with following direction:

that the petitioners shall be allowed to remain in possession of this portion of land and the respondents shall not interfere in their possession over it.

To ascertain the actual area which is in possession of the petitioners the respondents shall constitute a team and in presence of Patwari of the area

and the petitioners shall identify it and prepare a site plan of the same duly attested by both the parties and the revenue officials of the area.

Writ court took view that as portion of acquired land was allowed to remain in possession of respondents/writ petitioners and its possession

not taken over by appellant/ writ respondents, such portion in terms of Section 16, J&K Land Acquisition Act, 1894, did not vest in appellant/writ

respondent and that respondents/writ petitioners had a right to remain in possession of this land. Learned Single Judge while disposing of writ

petition in above manner placed reliance on law laid down in Special Land Acquisition Officer, Bombay and Others Vs. Godrej and Boyce, .

Writ court judgement is questioned in Letters Patent Appeal on hand on the grounds that judgement is contrary to law and facts. It is pleaded

that entire land i.e. 15 Kanals & 14 Marlas comprising Survey No.3 Min and 06 Kanals & 02 Marlas comprising Survey no.4 Min, stands

acquired and its possession taken over by appellant authority except land under small Kacha house. Appellants insist that writ court was not right

in allowing respondents to have possession over 03 Kanals & 14 Marlas comprising Survey no.3 Min and 02 Kanals & 10 Marlas comprising

Survey no.4 Min. It is pleaded that while acquiring land in question, appellant authority pressed into service Section 17, Land Acquisition Act,

1894, to take over possession as subject matter was one of urgency. Writ Court is said to have proceeded on erroneous assumption that

possession of subject matter of dispute was not taken over by appellant authority an inference belied by record. It is maintained that not only land

was acquired and possession taken over but compensation was paid to respondents.

We have gone through grounds urged in Appeal to question order as also writ record. We have heard learned counsel for parties.

It was admitted case of parties before Writ Court that subject matter of writ petition i.e. land measuring 15 Kanals and 14 Marlas comprising

Suyrvey No.3 Min and 06 Kanals & 12 Marlas comprising Survey No.04 Min, Channi Rama, Jammu, was acquired by respondents in connection

with Trikuta Nagar Housing Colony. Independent of admitted stand of the parties, Acquisition record available on file indicates that afore-stated

land was acquired and included in the Award, passed by Collector, Land Acquisition, PWD Jammu. Respondents, however, claim that

notwithstanding acquisition proceedings that culminated in Award, and assessment and payment of compensation, petitioner no.1 continued to be

in possession of part of acquired land measuring 03 Kanals & 14 Marlas (out of 15 Kanals & 14 Marlas comprising Survey No.03 Min) and

petitioner no.2 continued to be in possession of part of acquired land measuring 02 Kanals & 10 Marlas (out of 06 Kanals & 02 Marlas

comprising Survey no.4 Min) and their Kacha houses (Pacca house in case of petitioner no.2), exist on the afore-stated plots. They insist that as

respondents had not taken over possession of this part of acquired land and allowed its possession to continue with petitioners, the land did not

vest in the appellant authority and appellant authority was stripped of any right to take over possession of land or seek their eviction from the land.

Writ Court, as already pointed out, agreed with the stand taken by respondents and relying on law laid down in M/s Godrej and Boyce case

(supra) held that in terms of Section 16, J&K Land Acquisition Act, acquired land is to vest in the Government only after it takes over possession

of acquired land. Writ Court did not take notice of stand taken by appellant in opposition to writ petition that possession of entire acquired land

was taken over and respondents were allowed to retain Kacha house and land underneath such Kacha house. Writ Court judgment does not spell

out reasons that prompted it to ignore the stand taken by appellant authority or dissuaded it from recording agreement with such stand.

Writ court did not give closer look to the record available on file to find out whether possession of entire land was taken over by appellant

Authority as insisted in reply to writ petition. Had writ court scanned record minutely, it would have dawned on it that possession of entire land

was taken over by appellant Authority though in symbolic manner and permission, if any, given to respondents to continue with possession of their

Kacha houses for a while, was temporary in character and their possession was permissive in nature and held on behalf of appellant Authority.

It is well settled that when a large area of land is acquired for public purpose, it may not be always possible to take over actual and physical

possession of acquired land. In such a case documents executed by authority, involved in acquisition of land, in favour of representative of

indenting department regarding delivery of possession would be sufficient and satisfy requirements of Section 16, J&K Land Acquisition Act.

Acquired land/property, with such symbolic delivery of possession would vest in indenting department notwithstanding the fact that one or more

estate holders/property owners re-enter acquired land or continue to be in possession with tacit approval with an understanding that erstwhile

owner will leave part of acquired property retained by him after sometime.

It would be advantageous to refer to principles of law laid down in Balmokand Khatri Educational and Industrial Trust, Amritsar Vs. State of

Punjab and others, . In this case, like case in hand, acquisition was made having recourse to Section 17, Land Acquisition Act. It was questioned

on the ground that purpose for which land was acquired did not involve any urgency and authorities could not fall back upon said provision.

Supreme Court held:

It is seen that the entire gamut of the acquisition proceedings stood completed by April 17, 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 acquisition. The normal mode of taking possession is drafting the Panchanama 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 and unlawful possession. The Court proceeded to hold that merely because appellant

retained possession of acquired land, acquisition cannot be said to be bad in law.

In the present case, as record would reveal, after acquisition proceedings were finalised, Award made document titled statement of handing-

over taking-over possession of the land was reduced to writing on 16th April 1976, by Collector Land Acquisition, PWD, Jammu and appellant

Authority through Naib Tehsildar. The document recorded that 14 Kanals & 14 Marlas out of Survey No.03 Min (15 Kanals & 14 Marlas) was

handed over to appellant Authority and 01 Kanal shown to be under structures. Similarly out of 10 Kanals & 06 Marlas comprising Survey No.04

Min, 08 Kanals was recorded to have been handed over to appellant Authority and 02 Kanals & 06 Marlas shown to be under structures.

It is necessary to point out that respondent no.2 was in possession of land comprising Survey No.04 Min, as allottee only to the extent of 06

Kanals & 02 Marlas, rest of land i.e. 04 Kanals 04 Marlas, as per record, is in possession of Man Singh son of Attar Singh. The area of land i.e.

02 Kanals & 06 Marlas shown to be under structures does not, therefore, relate only to land i.e. 06 Kanals & 02 Marlas in possession of

respondent no.2, shown in the record as Mst.Lakhmu widow of Ram Singh through Rashpal Singh son as Sukhi widow of Ram Singh. The record

further reveals that assessment was made even of the structures existing on spot and respondent no.1's structure (Kacha house) assessed as

Rs.2690/-. This by itself indicates that possession of entire acquired land was taken over by appellant Authority and possession of any part thereof

was permissive in character, leaving it open to appellant Authority to seek its return, get back possession or seek respondents eviction from such

part of acquired land.

Reliance placed by Writ Court on M/s Godrej and Boyce case (supra) may be misplaced for reason that in the reported case, acquisition

proceedings were yet to be concluded. Facts of the case and controversy involved are different from one emerging from facts of present case. In

afore-stated reported case, State Government in the middle of acquisition proceedings, decided to withdraw from acquisition in public interest.

Respondents sought a direction, commanding State Government to finalise acquisition process. It is in this context that it was held that land

continued to vest in owner as only notices u/s 4 and 6, Land Acquisition Act, were issued and possession was not taken over by Government. It

was held that unless and until possession of acquired land is taken over, it is for land owner to protect property and resist any effort of trespass

over the land and remove encroachers. Incidentally in the reported case, during pendency of acquisition proceedings, land was encroached by

large number of slum dwellers. In present case, acquisition proceedings were finalised, Award made and assessed compensation disbursed

amongst land owners and even symbolic possession of acquired land was taken over by appellant Authority. Case law relied upon, therefore, may

not be attracted in the case in hand.

Next aspect of matter relates to reliance by Writ Court on Commissioner's report, to conclude that respondents were in possession of area out

of acquired land as claimed by them in writ petition. In first place it may not be permissible to ask Commissioner to decide question of possession

on spot inspection. Commissioner would not be well equipped to go into such controversy and declare one of contesting parties to be in

possession of property. Commissioner, at the most, may be asked to make spot inspection and submit report to Court, allowing Court to deduce

or draw inference whatever is possible from perusal of Commissioner's report. To arrive at conclusion as regards possession over immovable

property, one is required to make a thorough enquiry, affording parties an opportunity to reinforce their respective claim and to oppose claim set

up by rival party. This cannot be done by a Commissioner on taking bird's eye view of subject matter of dispute. Commissioner's report, therefore,

does not inspire confidence, and ought to have been taken by Writ Court as conclusive proof of possession and grant a writ on basis of such

report, more so when official record overwhelmingly supported the view that possession of entire acquired property was taken over by appellant

Authority and respondents allowed to have possession over their Kacha houses with a tacit understanding that possession would be restored to

appellant Authority.

It is well settled that Court cannot delegate its powers to Commissioner and direct it to find out and report, what under law is to be enquired

by Court and decided on the anvil of evidence adduced before it by rival parties.

For the reasons discussed, Letters Patent Appeal is allowed and Writ Court judgment dated 25th February 2010 is set-aside. Resultantly, writ

petition is dismissed. However, appellant Authority, while dealing with the matter, shall adhere to procedure established under law.