Nand Gopal and Others vs The The Land Acquistion Collector and Others

D.B. Lal, Acting C.J.

This is an appeal under Letters Patent and is directed against the judgment dated 17th March, 1971 of a learned single Judge of this Court, whereby he has dismissed a writ petition filed under Article 226 of the Constitution of India. The Petitioners were Nand Gopal and five others who claimed to be tenants in the permises known as Metropole Hotel estate at Simla. According to the Petitioners, the tenancies of some of them start from 1961 while other Petitioners got the tenancy in 1962 or 1968. Since then, they are in occupation of several sets in Metropole Hotel and also in an annexe pertaining to that hotel. One of the Petitioners is also residing as tenant in a servant quarter attached to that hotel.

The Petitioners'' case was that, on 2nd February, 1968, the Lt. Governor, Himachal Pradesh, purporting to exercise his powers u/s 4 of the Land Acquisition Act (hereinafter referred to as the Act) got published a notification in the Official Gazette of 16th March, 1968. The purpose for which the acquisition was to be made was the construction of M.L. As hostel within this estate. Thereafter, objections u/s 5(A) were invited and a notification u/s 6 of the Act was published. Finally on 30th October, 1969, an award was made in favour of the claimant-owners. The Petitioners were tenants on monthly basis and had paid rent regularly uptil 9th March, 1970. On 24th November, 1969, a general notice was issued by Respondent No. 1 who is the Land Acquisition Collector, Mahasu to the effect that the persons occupying the premises in Metropole Hotel were to deliver vacant possession by 1st December, 1969. Otherwise, it was specified that the Magistrate will be addressed to enforce the surrender of the said property to the Government department u/s 47 of the Act. According to the Petitioners, Respondent No. 2 Shri S.N. Pitra, who is Naib-Tehsildar under the Land Acquisition Collector, came to the premises. He was met by Respondent No. 4 who is Suresh Mohan, ex-Manager of that Hotel and one Suresh Jaiswal, who is one of the previous co-owners. Besides them, Shri R.R. Rehlon, the Assistant Engineer was also present. According to the Petitioners, he represented Respondent No. 3, who is the Secretary, P.W.D. of the Government of H.P. On this date, three documents were brought into existence which are Annexures A, B and C of the petition. The first document Annexure A gave description of the building, its area, trees, as well as house property comprised therein. At the end of this document, it was written that Shri Suresh Mohan, Manager and Shri Suresh Jaiswal handed over possession which was taken over by Shri S.N. Pitra, Respondent No. 2 on behalf of P.W.D. The second document, Annexure, B is a statement of S/Shri Suresh Mohan and Suresh Jaiswal to the effect that the Naib-Tehsildar had taken over possession of Hotel Metropole estate, that room No. 22 in the main building and a bar room could not be handedover in vacant possession because of some furniture lying there and the deponents promised to give vacant possession of this portion as well within a day or two. The third document, Annexure C, besides describing in detail the property for which possession was handed over and taken over as stated in Annexure A, further recited that besides possession have been taken, a list of tenants was also handed over. This was signed by Shri S.N. Pitra. As against this entry, it was written in the signatures of Shri R.R. Rehlon, Assistant Engineer and two other officers who also signed the document, that possession was taken over and lists of tenants were also received. In this third document at its end, under signature of Sub-Divisional Engineer on 26th March, 1970, it was noted that possession regarding remaining portion of Metropole Estate i.e. room No. 22 and the bar room was also taken over. The Petitioners contended that the execution of these three documents amply proved that possession u/s 16 of the Act was taken over and the property "thereupon" vested absolutely in the government, free from all encumbrances. Further contended the Petitioners, that the tenancies remained in tact because the Respondents had taken possession along with the tenants staying over the property. The Petitioners stated that the proceedings for acquisition were thus complete and thereafter the Land Acquisition Collector had become functus officio. The Government also began utilising the vacant portion of the estate as a rest house for government officers.

On 12th of June, 1970, the Petitioners contended that the Executive Enginer, H.P. P.W.D. issued a letter to the tenants occupying the premises that they were advised to vacate the portion in their occupation because the same were not safe for human habitation. It was further specified that the Government department will not be responsible for their safety. Finally on 30th July, 1970, the Petitioners were sent specific notices, saying that they should vacate the premises within a week''s time failing which legal action would be taken against them for unlawful occupation of the premises. The Petitioners have submitted the these notices were illegal, inasmuch as Section 47 of the Act did not apply and the Land Acquisition Collector who issued these notices was functus officio on that date. According to the Petitioners, they could only be ejected under due process of law and at any rate, under no provision of the Act.

It was contended by the Petitioners that they were still tenants in the premises and could be ejected as such. It was further alleged that the notices sent were discriminatory because some of the tenants already staying over the property i.e. Kr. Inder Singh, M.L.A. three shop-keepers and the office of the Special Police Establishment, were not given notices of vacation.

The Petitioners, therefore, asked for the relief of prohibitory writ, direction or order, to quash the notices dated 30th July, 1970. Further the Petitioners prayed for the relief of injunction restraining the Respondents from dis-possessing them from set No. 12A, set No. 1 and portions of the old annexe as well as servant quarters of the Metropole Hotel estate.

The Respondents contested the petition and their allegations were that the Petitioners could not be tenants under the government, and that the property had vested in government free from all encumbrances. However, according to Respondents, partial physical possession of the property was taken and for the rest, the list of tenants was handed over with the avowed object of getting vacant possession from them as well. It would, therefore, be wrong to say, according to the Respondents, that the Land Acquisition Collector had become functus officio, or that complete possession as contemplated u/s 16 of the Act, was at all taken by the Respondents. According to Respondents, Section 47 of the Act was equally applicable and the Land Acquisition Collector could eject the Petitioners by force under that provision. It was only by way of indulgence, say the Respondents, that the Petitioners were permitted to stay so long in the premises. There is no question of discrimination because Kan war Inder Singh, being M.L.A. was likely to stay in the building. Similarly, the three shop-keepers were very much needed for the requirements of the M.L.A. hostel. In respect of the Special Police Establishment, obviously, it is a government office, and the Government being full owner, is not prohibited to keep up one of its offices in a small portion of the building. In this manner, the Respondents had contested that no case was made out in favour of the Petitioners and no relief could be granted to them.

The learned single Judge, after considering the case of the respective parties held that the Land Acquisition Collector had not become functus officio. According to him, Section 16 and 47 of the Act did not lay down either any particular mode of taking possession nor did these sections say that surrender must be obtained by taking any one particular step and nothing more. According to the learned Judge, a series of steps for the purpose could be taken in hand. The Land Acquisition Collector was justified in showing latitude and granting time to the Petitioners for vacating the premises. He could, therefore, act u/s 47 of the Act and ask for the ejectment of the Petitioners. It was further conceded before the learned Judge that the Petitioners did not acquire the status of tenants. It was claimed that they had a procedural right for being ejected under due process of law. The learned Judge found that the Petitioners did not possess any such "procedural right". According to the learned Judge, the object of the Act is to give back possession to the Government, either actual or symbolical, so that the building could be utilised for the purpose it was intended to be acquired. In the instant case, the purpose was to keep up an M.L.A. hostel and for that, vacant possession was a sin qua non, and, therefore, the Petitioners could not be stated to have been agreed to stay in the building as tenants of the government. The learned Judge, therefore, held that a separate suit against the Petitioners who were trespassers was not required to be filed and that proceedings could be taken u/s 47 of the Act. Accordingly, the petition was dismissed.

The Petitioners have come up in a Letters Patent Appeal against the decision of the learned single Judge. They have almost reiterated their stand and have urged that possession was completely taken on 9th March, 1970, u/s 16 of the Act, and the Land Acquisition Collector had become functus officio. Although in the petition, it was stated that the Petitioners were tenants, yet in arguments, as before, the learned single Judge and so before us, it was conceded that the Petitioners could not be the tenants, the property having vested in the Government free from all encumbrances. However, it was submitted that the Petitioners, even if trespassers, could not be ejected u/s 47 of the Act. According to Appellants, symbolical possession was taken by the Government on 9th March, 1970, and the Petitioners were permitted to stay in the building with the consent of the Government. The Government can ask them to vacate the premises, but this can only be done by filing a suit in a civil court.

The learned Judge has traced the history of the law of land Acquisition and we entirely agree with him when he says that the object of the statute is to make better provision for the acquisition of land needed for a public purpose so that the land is made available to the Government which is able to assert its right over the land. The statute does not obviously contemplate a situation where the land is not made available to the Government in the shape it needs, to facilitate actual utilisation of such land for the purpose for which it was acquired. Therefore, any construction of the statute which is amenable to the real objective of the statute is to be preferred. In South Asia Industries Private Ltd. Vs. S. Sarup Singh and Others, it has been aptly obserbed by a learned Judge:

It is trite saying that the object of interpreting a statute is to ascertain the intention of the legislature enacting it. An interpretation defeating the object of a statute is, of course, not permissible.

We choose, therefore, to be guided by this principle while interpreting Sections 16 and 47 of the Act. The learned Judge has also quoted the celebrated Heydon''s case which has enjoined a well-known method of construing statutes known as the "Mischief Rule". It requires us to discover the evil for which the remedy was designed and the Land Acquisition Act was enacted. The evil was obviously this that squatters over land are made to surrender their possession so that the land is made available to the Government. Therefore, an interpretation which facilitates this surrender of possession should be accepted for Sections 16 and 47 of the Act. The enactment is thus to be liberally construed and the objective is not to be defeated. In our opinion, the learned Judge was right when he observed that although Section 16 does not lay down the process of taking possession, yet a suitable construction has got to be given to it by the authority of Section 47, so that possession is taken and the land is made available for the actual user by the Government.

This brings us to the contention of the Petitioners that the Land Acquisition Collector had become functus officio. The learned Counsel pointed out that the Collector had made the award and thereafter possession was taken on 9th March, 1970. "Thereupon, says the learned Counsel, the land vested absolutely in the Government, free from all encumbrances. According to the learned Counsel, Section 47 would only come to operation prior to the vesting of the land in the Government. Once the vesting is complete and that can only be after possesson is taken, Section 47 would lose its significance. In other words, that Section cannot apply for asking surrender from the Petitioners occupying the land, even if later on they are not acceptable to the Government. We have then to consider as to whether possession in the sense contemplated u/s 16 has at all been taken on 9th March, 1970. It is manifest the property was needed for using it as an M.L.A. Hostel. Therefore, vacant possession was obviously needed so that the members of the legislature could come and stay in the building. A symbolical or constructive possession could of course be taken by the government provided such a category of possession was acceptable to the government. In the case of Kanwar Inder Singh, M.L.A. or the three shop-keepers, or the officials of the Special Police Establishment, constructive possession could be understood to have been taken by the Government, because the intention of the government was obviously to maintain their possession over the respective portions of the building. As to the other tenants of the building, the government never intended to keep them there as such. They needed vacant possession of the building and, therefore, a constructive possession in respect of such tenants, in which category the Petitioners fall, cannot be stated to have been accepted by the government. The mere fact that the expressions "handed over" or "taken over" were written in Annexures A or C, or that lists of tenants were given, would not go to imply that the government had consented for these tenants, to stay in the building as such or as licensees. In our opinin, therefore, possession u/s 16, no doubt consists of actual possession or symbolical possession, but the latter category of possession is only permissible when the same is acceptable to the government. We are, therefore, of the opinion that the type of symbolical possession relied upon by the Petitioner, was not amenable to the interests of the government. There is no evidence to indicate that the government wanted the Petitioners to continue as permissive occupants. It was only by way of a latitude that they were not asked to surrender at the earliest stage of the proceedings.

The Petitioners have contended that symbolical possession was taken by the government on 9th March, 1970 as the actual possession had remained with them. The conception of "symbolical possession" presupposes that actual possession was intentionally given up by the person taking possesson. In other words, symbolical possession pre-supposes consent of the person who is otherwise entitled to actual possession. In the instant case, it has not been established that the government had at any time consented the actual possession to have remained with the Petitioners. Apart from this, the Petitioners have also pleaded that they can only be trespassers and have further stated that even as trespassers they cannot be ejected by a proceeding u/s 47 of the Act. It symbolical possession was accepted by the government, it necessarily follows that a derivative title was created in favour of the Petitioners. In that contingency, they would not be trespasssers and the plea regarding Petitioners'' being trespassers cannot be sustained when at the same time they contended that symbolical possession was accepted by the government. This is a further ground which would disprove the claim of the Petitioners that symbolical possession was taken by the government.

In the Fruit and Vegetable Merchants Union Vs. Delhi Improvement Trust, their Lordships were considering the meaning of the word "vested" in various statutes. In regard to Sections 16 and 17 of the Land Acquisition Act, they observed that the property so acquired upon the happening of certain events, vests absolutely in the government free from all encumbrances. In the cases contemplated by Sections 16 and 17, the property acquired, according to their lordships becomes the property of government without any conditions or limitations "either as to title or as to possession". Therefore, no limitation could be inferred against the government in regard to right of "possession". This strengthens our argument that symbolical possession can only be inferred provided it was accepted by the government. In the entire scheme of these proceedings and to fulfil the avowed object for which the acquisition was made, symbolical possession was never contemplated.

In Jetmull Bhojraj Vs. The State of Bihar and Others, the concept of "possession" for the purpose of Sections 16 and 17 of the Act was considered. The following observation of their Lordship is useful in this connection:

Possession for purposes of Sections 16 and 17 of the Act must be possession as full 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 and 17 nonetheless 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.

Therefore, symbolic possession can only be pleaded by the Petitioners if it was "effective possession" for the purposes of the Government. It is obviously true that the occupation by the Petitioners was never tolerated by the government. Therefore, symbolic possession being not acceptable, cannot be inferred on the strength of annexures A, B and C, the documents written on 9th March, 1970.

It was contended by the learned Counsel that the learned Judge, and indeed the learned Advocate-General, were in error when they considered that the vesting of the property takes place immediately after the award is made by the Land Acquisition Collector. In fact the learned Judge has not given that finding. It is better to set down the proposition in his own words:

In my opinion, despite some ambiguity in Section 16 as to when the title to the land vests in the government that is to say, whether immediately on the making of the award or at the time when possession is taken, I think it is quite clear that the power to take possession is not affected by any such ambiguity. I am disposed to interpret the words ''shall thereupon vest in the government free from all encumbrances'' as relating to the time at which the award given u/s 11 because it is at that time that the right and title of the government becomes clear and free from all encumbrances.

What the learned Judge means to say is that the right and title becomes freed and clear when the award is made and thereafter the stage comes when the government can exercise its right to take possession over the land and the Land Acquisition Collector can take recourse to Section 47 for asking surrender of land from the person'' sitting over it. Unless a right and title is created, how can proceedings regarding delivery of possession be initiated. In this context, the learned Judge observes that the right and title of the government becomes clear and freed from all encumbrances at the time award is given. Otherwise, in our opinion, it would be correct to say that on a plain reading of Section 16, it is only after possession is taken over the land that the same vests absolutely in the government free from all encumbrances. As we have already held, complete possession was not taken on 9th March, 1970, and only partial possession was taken. Therefore, the property was in the process of being vested absolutely in the government free from all encumbrances. The stage was very well there when Section 47 could be operated and notices of surrender could be issued to the Petitioners.

In Udmi Ram v. State of Punjab ( 1970 C.L.J. 78), it was held that no transfer of title to the government takes place till possession of the land is taken u/s 16 of the Act. Similarly, it is held in Lt. Governor of Himachal Pradesh v. Avinash Sharma (A.I.R. 1970 S.C. 149) that it is only after possession has been taken that the land is vested in the government. Therefore, there can be no denying the law that the property would vest absolutely in the government free from all encumbrances only when possession is taken over the land. In the instant case, in our opinion, possession not been taken and it is wrong to allege as has been done by the Petitioners that on 9th March, 1970, the government accepted symbolic possession by accepting them to continue in actual possession. In this connection, the learned Counsel for the Petitioners stressed that in their reply to the petition, the government itself stated that the property had vested in them free from all encumbrances. If we carefully read the reply, it is stated therein that "only partial physical possession" of the property was taken and symbolical possession was taken in respect of tenants. The government never meant to state that this symbolical possession was at all acceptable to them because otherwise they would not have initiated proceedings u/s 47 of the Act. Where they have stated that the property has already vested in the government free from all encumbrances, they do so in reply to the contention of the Petitioner that they were tenants in the property and in denial to this fact, the assertion was made that the property has already vested free from all encumbrances;

In our opinion, Section 16 and 17 of the Act, cannot be read independent of each other. In order to take possession u/s 16, recourse can be had to Section 47 if need for that arises. The government was in the process of taking possession. Such possession was partly taken on 9th March, 1970. The government did not ask the tenants to surrender immediately on that date. They were given some time to accommodate themselves. There was nothing irregular in this. Later on when they did not vacate, notices were issued u/s 47. We agree with the learned Judge when he states in the manner stated below and we prefer to quote him in his own words:

It is, however, clear that even if vesting could be deemed to be postponed until actual or symbolical possession of land was taken, Section 16 of the Act does not limit the power of taking possession to any particular time or in a prescribed mode. It does not, for example, lay down where and how the Magistrate can use his power u/s 47 of the Act to enforce the surrender. Section 47 gives a power "to enforce surrender" or to procure surrender. It does not lay down either any particular mode of doing this or say that surrender must be obtained by taking any one particular step and nothing more. Nor does it prescribe any series of steps for the purpose. But, the intention that even use of force may be authorised can be inferred from the fact that the power is given to ''a magistrate''. The Magistrate may, if necessary, give intimation or notices in writing, or, where necessary, even proceed quasi-judicially and hear objections. All this could be done in exercise of an implied or incidental power flowing from the grant of power to procure surrender.

Therefore, we conclude that Section 47 has been rightly applied and notices of surrender cannot be quashed.

As we have stated before, the Petitioners had contended that they were tenants in the property. In fact they wanted them to be ejected as tenants. On this basis, they claimed a "procedural right" and wanted the notices to be quashed. However, the learned Counsel for the Petitioners admitted before us that they cannot be treated as tenants. None the less, his argument was that even if they are trespassers, they need be ejected by a Civil Court in the regular suit which may be filed against them. We have already repelled this argument because according to us complete possession has not been taken as yet and Section 47 has its full play. The symbolic possession was not acceptable to the government. If the list of tenants was handed over, that was done only to give information to the government as to who were the tenants and in which portion of the building. Proceedings u/s 47 of the Act could be separately initiated against such tenants. It is urged that the notices are discriminatory but as we have already stated, the specified M.L.A. could stay as the building was meant for M.L. As. Hostel. The three shop-keepers might be needed for the daily requirements of the M.L. As. A small office of the government could as well be located in a portion of the building as that would not have defeated the purpose for which the acquisition was made.

We must, therefore, hold that Section 47 of the Act was rightly applied and the Land Acquisition Collector was not functus officio. The physical possession of the estate was not completed on 9th March, 1970. Section 47 could be invoked at a subsequent stage when the Petitioners refused to vacate the building. The notices issued to the Petitioners u/s 47 cannot thus be quashed. Similarly no prohibitory order can be issued against the Respondents.

In the result, the petition was rightly dismissed and the appeal has also no force and is hereby dismissed with costs to the Respondents 1 to 3. Counsel fee assessed to be at Rs. 150/-.

Chet Ram Thakur, J.

I agree.