Mool Chand vs The State of U.P. and Others

The relief claimed in the present petition is for quashing the declaration dated 31st December, 1991 made by the State Government u/s 6 of the Land Acquisition Act, 1894 (hereinafter referred to as the ''''Act'') and for a direction upon the respondents not to interfere with the possession of the petitioner over Plot Nos. 139 and 146 situated in Village Jhalwa, Pargana and Tehsil Chail, District Allahabad.

The petitioner claims to be the owner in possession of Plot No. 139 and 1/3rd portion of Plot No. 146 situated in Village Jhalwa, Pargana and Tehsil Chail, District Allahabad. The notification u/s 4(1)) and Section 17(1) of the Act was issued on 21st January, 1990. It was mentioned in the notification that the provisions of Section 5-A of the Act shall not apply inasmuch as it was a case of urgency u/s 17(1) of the Act and that the land was needed for a public purpose namely for the construction of a residential colony under Planned Development Scheme by the Allahabad Development Authority (hereinafter referred to as the Development Authority). A corrigendum was issued on 12th June, 1991. This notification was followed by the declaration u/s 6 of the Act which was published in the Gazette 31st December, 1991.

In the counter affidavit filed by the Development Authority, it has been stated that the possession of the plots in question was taken by the State Government and given to the Development Authority on 5th May, 1992. The possession certificate has also been annexed as Annexure-2 to the counter affidavit. It has also been stated that since then the Development Authority is in possession of the land and the process for development of the colony is in progress.

We have heard Sri Satish Mandhyan, learned Counsel appearing for the petitioner, learned Standing Counsel appearing for respondent Nos. 1, 2 and 3 and Sri A.K. Mishra, learned Counsel appearing for the Development Authority.

Learned Counsel for the petitioner submitted that even though the declaration u/s 6 of the Act was published on 31st December, 1991, the award has not been made by the Collector u/s 11 of the Act till date and, therefore, the proceedings for the acquisition of land has lapsed in view of the provisions of Section 11-A of the Act and in support of his contention he has placed reliance upon the decision of this Court in Writ Petition No. 9006 of 2003 decided on 27th March, 2008 (Pyare Lal and Ors. v. State of U.P. and Ors.). He further submitted that in any view of the matter, the State Government was not justified in invoking urgency clause and exempting the provision of Section 5-A of the Act.

Learned Standing Counsel and Sri A.K. Mishra appearing for the respondents, however, submitted that inasmuch as the possession of the land had been taken by the State and handed over to the Development Authority on 5th May, 1992, the land stood vested in the Government free from all encumbrances and the acquisition will not lapse u/s 11-A of the Act. They further submitted that the petition had been filed in the year 2004 after a period of more than 14 years from the date of publication of the notification u/s 4(1) of the Act and the declaration u/s 6 of the Act and, therefore, it should be dismissed on the ground of laches.

We have carefully considered the submissions advanced by the learned Counsel for the parties and have perused the material available on record.

It is the contention of learned Counsel for the petitioner that the acquisition itself has lapsed in view of the provisions of Section 11-A of the Act as the award has not been made u/s 11-A of the Act within a period of two years from the date of publication of the declaration u/s 6 of the Act, particularly when the petitioner is still in physical possession of the land.

Learned Counsel for the respondents, however, submitted that the provisions of Section 11-A of the Act will have no application to the facts of the present case inasmuch as pursuant to the notice issued u/s 9(1) of the Act, the possession of the land had been taken by the State and handed over to the acquiring body on 5th May, 1992 and in support of this contention reliance has been placed upon the decisions of the Supreme Court in P.K. Kalburqi v. State of Karnataka and Ors. (2005) 12 SCC 489 ; State of Tamil Nadu and another Vs. Mahalakshmi Ammal and others, and Satendra Prasad Jain and Others Vs. State of U.P. and Others,

It is not in dispute that the award has not been made. The petitioner has placed reliance upon the provisions of Section 11-A of the Act which provide that the acquisition shall lapse if the award is not made within a period of two years from the date of publication of the declaration u/s 6 of the Act. In the present case what has to be noticed is that at the time of issuance of the notification u/s 4(1) of the Act, urgency provisions were resorted to and the enquiry u/s 5-A of the Act was exempted. In the declaration u/s 6 of the Act, it was also mentioned that since it was a case of the urgency, the Collector could take possession of the land on the expiration of 15 days from the publication of the notice u/s 9(1) of the Act, even though the award was not made. It is the stand of the respondents that subsequently the possession of the land was taken by the State and given to the acquiring body on 5th May, 1992 and in this connection certificate dated 5th May, 1992 has been annexed as Annexure ''''CA-2'' to the counter affidavit.

The issue that arises for consideration in the present case is about the applicability of the provisions of Section 11-A of the Act.

The Supreme Court in Satendra Prasad Jain (supra) has clearly observed that in a case where Section 17(1) is applied by reason of urgency, Government takes possession of the land prior to the making of the award whereupon the land vests in the Government free from all encumbrances and, therefore, Section 11-A will have no application because the land has already vested in the Government. The relevant portion of the judgment of the Supreme Court in Satendra Prasad Jain (supra) is as follows:

Ordinarily, the Government can take possession of the land proposed to be acquired only after an award of compensation in respect thereof has been made u/s 11. Upon the taking of possession the land vests in the Government, that is to say, the owner of the land loses to the Government the title to it. This is what Section 16 states. The provisions of Section 11-A are intended to benefit the land owner and ensure that the award is made within a period of two years from the date of the Section 6 declaration. In the ordinary case, therefore, when Government fails to make an award within two years of the declaration u/s 6, the land has still not vested in the Government and its title remains with the owner, the acquisition proceedings are still pending and, by virtue of the provisions of Section 11-A, lapse. When Section 17(1) is applied by reason of urgency, Government takes possession of the land prior to the making of the award u/s 11 and thereupon the owner is divested of the title to the land which is vested in the Government. Section 17(1) states so in unmistakable terms. Clearly, Section 11-A can have no application to cases of acquisitions u/s 17 because the lands have already vested in the Government and there is no provision in the said Act by which land statutorily vested in the Government can revert to the owner.

It has, therefore, to be seen whether possession of the land was taken by the State in the present case.

A perusal of the certificate dated 5th May, 1992 indicates that the possession of the land mentioned in the declaration u/s 6 of the Act has been transferred to the officers of the acquiring body on 5th May, 1992. There are signatures at the bottom of the certificate of the officers of the Development Authority and the Special Land Acquisition Officer. It is on the basis of this possession certificate that it has been contended on behalf of the respondents that possession of the acquired land was taken and given to the acquiring body.

It is the submission of Sri Satish Mandhyan, learned Counsel for the petitioner that the petitioner is still in physical possession of the acquired land and the taking of the possession on the basis of the aforesaid certificate does not help the respondents.

In State of Tamil Nadu (supra) on which reliance has been placed by the learned Counsel for the respondents, the Supreme Court pointed out that possession of the acquired land is taken by way of memorandum, Panchnama which is a legally accepted norm as it is not possible to take physical possession and subsequent continuation, if any, by the erstwhile owner is wholly illegal and unlawful possession which does not bind the Government. The relevant portion of the judgment is as follows:

...Possession of the acquired land would be taken only by way of a memorandum, Panchnama, which is a legally accepted norm. It would not be possible to take any physical possession. Therefore, subsequent continuation, if any, had by the erstwhile owner is only illegal or unlawful possession which does not bind the Government nor vested u/s 16 divested in the illegal occupant. Considered from this perspective, we hold that the High Court was not justified in interfering with the award.

Similar observations were made by the Supreme Court in P.K. Kalburqui (supra) and the relevant observations are as follows:

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 proceeded 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 Vs. M.D. Bhagwat and Others, 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.

In the counter affidavit, it has also been stated that after taking possession of the land, possession was given to Development Authority on 5th May, 1992 and the process for development is in progress.

In view of the aforesaid, we are of the considered opinion that the possession of the land had been taken by the State and given to the Development Authority on 5th May, 1992 as is clear from the certificate and even if the claim of the petitioner that he is in possession of the plot is accepted, then too it would not be of any benefit to him because such possession would be wholly illegal, as was observed by the Supreme Court in State of Tamil Nadu (supra). The Supreme Court also observed that any irregularity in taking possession does not confer any benefit to the land owner.

The decision of this Court in Pyare Lal (supra) does not help the petitioner. It is true that the same acquisition was an issue in the aforesaid writ petition but there was a substantial delay in taking possession. The Court noticed that though the acquisition was challenged by means of an earlier writ petition in which an interim order was passed on 17th April, 1992 but even after the dismissal of the said writ petition on 24th July, 2000, the respondents took more than two years in taking the possession on 1st November, 2002, while the period prescribed u/s 11-A of the Act is two years from the date of publication of the declaration u/s 6 of the Act. It is, in such circumstances, that the Court observed that the acquisition lapsed. In the present case, the possession was taken on 5th May, 1992 within a period of one year from the date of publication of the declaration u/s 6 of the Act.

Thus, from what has been stated above, it is clear that Section 11-A of the Act will have no application to the present case as possession of the land had been taken by invoking Section 17(1) of the Act.

The second contention of learned Counsel for the petitioner that the provision of Section 5-A of the Act could not have been exempted cannot be examined after a period of more than 14 years as was observed by the Supreme Court in Municipal Corporation of Greater Bombay Vs. The Industrial Development Investment Co. Pvt Ltd., and others, and in Urban Improvement Trust, Udaipur Vs. Bheru Lal and Others,

The petition, therefore, deserves to be dismissed and is, accordingly, dismissed. However, as there has been a considerable delay, the respondents shall now make the award u/s 11 of the Act as expeditiously as is possible, in case it has not already been made.