Mohammed Ibrahim and Another vs State of Orissa

S.K. Ray, J.—The Appellants were owners of 0.09 cents of land appertaining to survey No. 12 in mouza Lanjipalli in Berhampur Tehsil, district Ganjam. These lands were acquired for the public purpose of remodelling of the Berhampur Railway Station Yard. Notifications under Sections 4(1) and 17(4) of the Land Acquisition Act (hereinafter referred to as the ''Act'') were published in the extraordinary gazette No. 2197 dated 21-8-1964. The Land Acquisition Officer made an award for a sum of Rs. 5,644.75 p. towards compensation for the aforesaid land with house thereon. In determining this compensation, he fixed the market value of the land at the rate of Rs. 33,000/- per acre. At the instance of the Appellants a reference was made to the Court u/s 18 of the Act. The Court, namely, the Sub-Judge of Berhampur enhanced the compensation amount and directed payment of interest on the excess amount at the rate of 6 per cent per annum from the date on which the possession was taken from the Petitioners till the date of payment of such excess amount, obviously u/s 34 of the Act.

The Appellants accepted the amount awarded by the Collector under protest before they sought reference to the civil Court. After the Court passed an award enhancing the compensation granted by the Land Acquisition Officer, the Appellants levied execution of the same in E.P. No. 21 of 1971 in the Court of the Sub-Judge, Berhampur. The Respondent - judgment-debtor raised objection to execution of the award for interest on the ground that the Collector had not taken possession of the acquired lands. Construing Ex. 1, the Sub-Judge held that possession of survey No. 12 had not been taken by the Collector, because the house standing on the acquired lands being in possession of trespassers, the Applicants were under obligation to evict those trespassers and deliver vacant possession thereof to the judgment debtor which they had failed to discharge. He, therefore, refused to execute the award for interest by his order dated 21-4-1973. Being aggrieved by that order this appeal has been filed.

Ext. A is the report of the Land Acquisition Inspector dated 19-7-1969 regarding taking of possession of the acquired lands. It states:

...The owners relating to Section Nos. 12, 13, 14/1A, 14/1B and 50 were given possession of their lands on the date fixed after due demarcation. But it is found that in Section No. 13 there are thatched houses, in Section No. 14/1B there is also a pucca house. In these 2 plots the house owners did not deliver their possession by giving reasons that unless and until the payment of compensation has been received towards their houses and places. So I could not take over possession from them for the above 2.

Then he proceeds to deal with other survey numbers with which we are not concerned and ultimately towards the end of last but one paragraph of his report he states,

...Besides this I am to report that due to non taken of possession of the houses in Section Nos. 13, 12, 14/1B and Section No. 45 I could not made over possession of the acquired lands to the Representative of requiring Departments as the Rly. authority cannot be taken possession if the possession of the lands including houses given fully.

It is obvious on a perusal of the entire report that reference to survey No. 12 in the penultimate paragraph of his report is a mistake. The report commences with description of construction of houses standing over different survey numbers. He has categorically found that there were thatched houses and pucca houses on survey Nos. 13 and 14/1B and that the occupiers of houses on survey Nos. 13 and 14/1B refused to deliver possession. Towards the concluding part of the report he has merely stated his conclusion on the basis of his findings recorded above. In that view, there can be no doubt that reference to survey No. 12 in the penultimate paragraph of the report, as stated above, is a mistake. In my opinion the report shows that survey No. 12 was taken possession of by the Collector. Therefore, the Sub-Judge was wrong in allowing the objection of the judgment-debtor and disallowing the claim of interest.

Even assuming that survey No. 12 had some houses thereon which were in occupation of some third parties and they refused to give possession in favour of the Collector, nevertheless, since the owners themselves delivered such possession to the Land Acquisition Inspector of which the acquired property was capable of at the time, it must be held that there was delivery of possession in law. Possession for the purpose of Section 34 must carry the same meaning as possesion for the purpose of Section, 16 of the Act and such possession must be possession of which a full owner was capable of having with all consequential rights appertaining to it at the time. Possession may be khas possession or constructive possession and delivery of possession envisaged u/s 16 of the Act must mean such delivery as will be effective with reference to the nature of possession of the owner. If the owner is in khas possession, delivery of possession must be actual delivery and if possession is constructive, it must mean symbolical delivery. Section 16 provides for the Collector taking possession and not the owner delivering possession. Thus, where the property is in actual possession of a trespasser but in the legal possession of the true owner and the latter delivers possession, such delivery will obviously be symbolical delivery of possession. Since the defacto possessor has no interest in the land and had not made any claim for compensation on the basis of any interest in the acquired land, he will be an out and out trespasser not only so far as the true owner is concerned but also so far as Government is concerned as well. Symbolical delivery of possession in such cases will, I apprehend, be as effective as actual delivery for the purpose of Section 16 of the Act. Once the Land Acquisition Officer has taken symbolical delivery of possession, the State acquires along with it the right to evict the trespassers. It will thus be illogical to hold that the owner will still continue to have thereafter any right to eject the trespassers. Taking of possession u/s 16 of the Act becomes complete, in such cases, as soon as the possession which the owner was capable of delivering was taken.

In the case of Jetmull Bhojraj Vs. The State of Bihar and Others, , it was held that

Possession for the purpose of Sections 16 and 17(1) must be possession as a fun owner, in consequence of which the lands vest absolutely in the Government free from all encumbrances. It cannot be of the same nature as any previous possession which the Government might have taken either as a lessee, or mortgagee, or licensee or under some other colour of title, or even as a trespasser. Though the Act is silent as to the mode of taking possession either u/s 16 or Section 17(1) of the Act, there seems no doubt that either actual occupation by the Collector, or his agents, or taking symbolic possession (where actual possession is already with the Collector), or doing something equivalent to effective possession is contemplated.

In the circumstances of the present case, having regard to the forcible occupation by third parties of the houses standing on a portion of this acquired land, the only possible mode of taking delivery of possession would be symbolical and such symbolical delivery of possession would be in law as effective as actual delivery of possession. There is nowhere in the four corners of the Act which casts an obligation upon the owner of the acquired land to take proceeding for eviction of the trespasser and then to deliver possession to the Collector. It is for the Collector to take steps for taking possession and in the particular circumstances of the case the only way to take possession from the owner would be symbolical in nature, because the third parties in possession have not derived possession from the true owner. Though the English language used by the Inspector in the report is grammatically inaccurate, there can be no doubt in the meaning that Survey No. 12 was taken possession of by him on behalf of the Collector, in so far as it was capable of being taken possession and nothing more was possible to be done by the owners in the matter of relinquishing possession. Thus, for the purpose of Section 34 of the Act the property must be deemed to have been taken possession of and, therefore, interest is liable to be paid.

For the aforesaid reasons the decision of the Sub-Judge dated 21-4.1973 is patently erroneous and is accordingly set aside. The objection of the judgment-debtor u/s 47 is consequently rejected. The Sub-Judge must now proceed to execute the decree for interest.

In the result, therefore, the appeal succeeds and is allowed with costs.