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2004 DIGILAW 1551 (ALL)

BELTEK INDIA LTD v. STATE OF UTTER PRADESH

2004-08-13

M.KATJU, V.C.MISRA

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M. KATJU, J. ( 1 ) THIS is an application to recall the judgment dated 31-3-2004 by which petition was dismissed following the decision of this Court in Kaloo Ram v. State of U. P. and others, Writ Petition No. 27317 of 2001 (reported in 2004 (2) Ml C J 1108) ( 2 ) IN paragraph 5 and 6 of the affidavit filed in support of this application it is stated that the writ petition was dismissed in the absence of the learned counsel for the petitioner who could not attend due to his illness. Hence we have heard the counsel for petitioner again on merits of the case but we are not inclined to recall the judgment dated 31-3-2004. ( 3 ) LEARNED counsel for the petitioner has alleged that actual physical possession of the land was not taken from the petitioner as stated in paragraph 27,32 and 33 of the writ petition. However, in a counter affidavit it has been stated in paragraph 18, 24 and 25 that possession was taken by the respondents on 27-11-1999. True copy of the possession memo is Annexure-CA-1 to the counter affidavit. ( 4 ) IN Balmokand v. State of Punjab, (1996) 3 JT (SC) 60 : ( AIR 1996 SC 1239 ) it was held by the Supreme Court that the normal mode of taking possession and giving delivery to the beneficiaries is the ac-cepted mode of taking possession of the land. Subsequent thereto the retention of posses-sion would tantamount only to illegal or unlawful possession. Hence merely because the appellant subsequent to 27-11-1999, retained actual possession of the acquired land the acquisition cannot be said to be bad in law. ( 5 ) IN Awadh Bihari Yadav v. State of bihar, (1995) 6 JT (SC) 248 : ( AIR 1996 SC 122 ) following the earlier decision in Balwant Narayan Bhagde v. M. D. Bhagwat. AIR 1975 SC 1767 it was held that once possession of the land was taken by the Government even if thereafter the owner of the land entered upon the land and resumed possession such act does not have the effect of obliterating the consequences of vesting. AIR 1975 SC 1767 it was held that once possession of the land was taken by the Government even if thereafter the owner of the land entered upon the land and resumed possession such act does not have the effect of obliterating the consequences of vesting. ( 6 ) IT has been repeatedly held that once possession memo has been executed it will be deemed that possession has been taken by the respondents vide Awadh Bihari Yadav v. State of bihar, AIR 1996 SC 122 ; balmokand Khatri Educational and Industrial trust v. State of Punjab (1996) 3 JT (SC) 60 : ( AIR 1996 SC 1239 ) Mahendra singh v. State of U. P. 2002 (2) All WC 1629 : (2002 AIHC 4430); Kaloo Ram v. State of u. P. Writ Petition No. 27317 of 2001 decided on 5-3-2004 etc. (reported in 2004 (2)all CJ 1108 ). The acquisition proceedings will not lapse under Section 11 A in this situation vide Patharoo v. U. P. Avas Evam Vikas parishad, 2002 (5) All WC 3665. ( 7 ) THUS it is evident from these decisions that once possession memo has been executed it has to be deemed that possession has been taken by the respondents. It may be mentioned that the normal mode of taking possession by the authorities is that the amin goes to the spot and executes a possession memo. Once this is done it has to be deemed that possession has been taken by the respondents. After all, the Amin is not expected to remain on the spot day and night after executing the possession memo. The land in question is required for planned industrial development and as held in Kaloo ram v. State of U. P. (2004 (2) All CJ 1108) (supra) this is for public purpose and is urgent as the country requires industrilization for its progress. The relevant case law has been discussed in great detail in Kaloo Rams case (supra) and we fully agree with the same. Application rejected. Application rejected. .