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2008 DIGILAW 2533 (ALL)

SUKET SARIN v. STATE OF U. P.

2008-12-08

ARUN TANDON, DILIP GUPTA

body2008
JUDGMENT By the Court.—This petition seeks the declaration that the acquisition of the plots in dispute has lapsed because of the provisions of Section 11-A of the Land Acquisition Act, 1894 (hereinafter referred to as the ‘Act’). The petitioner has also sought the quashing of the notification issued under Section 4(1) of the Act as well as the declaration made under Section 6 of the Act. 2. The records of the writ petition indicate that the notification dated 17th April, 2002 under Section 4(1) of the Act was issued for acquisition of land measuring 7.93 Acres situated in certain plots in Village Salarpur Khadar, Pargana Dadri, District Gautam Budh Nagar for planned industrial development in District Gautam Budh Nagar through New Okhla Industrial Development Authority (hereinafter referred to as the ‘NOIDA’). It was also mentioned in the notification that since the provisions of Section 17(1) of the Act were applicable to the said land inasmuch as the said land was urgently required for planned industrial development and it was also necessary to elminate the delay likely to be caused by the enquiry under Section 5-A of the Act, the Governor had further directed under Section 17(4) of the Act that the provisions of Section 5-A of the Act shall not apply. The declaration under Section 6 of the Act was made on 28th June, 2003 mentioning therein that the Governor being satisfied that the case was one of the urgency, had directed under Section 17(1) of the Act that the Collector, though no award under Section 11 had been made, could take possession of the land on expiration of 15 days from the date of publication of the notice under Section 9(1) of the Act. 3. The petitioner claims to have purchased area measuring 1-9-0 in Plot No. 675, area measuring 1-9-0 in Plot No. 676, area measuring 1-12-10 in Plot No. 677 and area measuring 0-16-10 in Plot No. 678 by four registered sale deeds, executed on 29th November, 1983. 3. The petitioner claims to have purchased area measuring 1-9-0 in Plot No. 675, area measuring 1-9-0 in Plot No. 676, area measuring 1-12-10 in Plot No. 677 and area measuring 0-16-10 in Plot No. 678 by four registered sale deeds, executed on 29th November, 1983. It has been stated by him in paragraph 6 of the petition that it was only on 19th April, 2008 when some officials of NOIDA came to the premises that the petitioner came to know that the notification under Section 4(1) of the Act and the declaration under Section 6 of the Act had been made and on making further enquiries came to know that the notice under Section 9(1) of the Act had also been issued on 31st July, 2003. It is, however, the contention of the petitioner that he is still in possession of the plots referred to above. 4. Sri S.P. Gupta, learned Senior Counsel for the petitioner has placed reliance upon the provisions of Section 11-A of the Act and has submitted that the acquisition has lapsed since the award has not been made by the Special Land Acquisition Officer within a period of two years from the date of publication of the declaration under Section 6 of the Act. 5. Sri A.K. Mishra and Sri R.P. Singh, learned Counsel for NOIDA and the learned Standing Counsel appearing for the State of U.P., however, submitted that the petition is highly belated and deserves to be dismissed on this ground alone. They have also submitted that after the notice under Section 9(1) of the Act was issued, possession of the land acquired was taken and delivered to the acquiring body on 31st March, 2004 and, therefore, in such circumstances when the land stood vested in the State free from all encumbrances, the acquisition will not lapse as the provisions of Section 11-A of the Act will have no application. 6. We have carefully considered the submissions advanced by the learned counsel for the parties and have perused the material available on record. 7. The petitioner claims to be residing in the United States and the present petition has been presented through the power of attorney holder Sri Sunil Sarin and in this connection the general power of attorney dated 18th October, 2005 has also been brought on record as Annexure ‘1’ to the writ petition. 7. The petitioner claims to be residing in the United States and the present petition has been presented through the power of attorney holder Sri Sunil Sarin and in this connection the general power of attorney dated 18th October, 2005 has also been brought on record as Annexure ‘1’ to the writ petition. A perusal of the said general power of attorney indicates that Sunil Sarin has been authorised to negotiate and sell the plots including the land under acquisition and to negotiate with NOIDA for release of the said land which according to the information received by the petitioner was under acquisition. This general power of attorney was executed on 18th October, 2005 but the petitioner has come out with the case in paragraph 6 of the petition that it was only on 19th April, 2008 that the petitioner came to know that the land was under acquisition and notifications in that connection had been issued in the year 2002-03. It is, therefore, clear that the statement made by the petitioner in paragraph 6 of the petition is incorrect inasmuch as at least in the year 2005 the petitioner had knowledge of the acquisition proceedings. It is apparent that the petitioner has made an attempt to explain the delay in filing the petition by making out a false case that it was in the year 2008 that he came to know of the acquisition proceedings. The period of two years from the date of publication of the Section 6 declaration expired sometimes in 2005 but the petition was filed in 2008. The second relief for quashing of the notification under Section 4(1) of the Act and the declaration under Section 6 of the Act has also been claimed after almost six years. The respondents are, therefore, justified in contending that the petition is highly belated and should be dismissed on this ground alone. 8. The matter may also be examined on merits though it may not be necessary to do so in view of the earlier finding. The respondents are, therefore, justified in contending that the petition is highly belated and should be dismissed on this ground alone. 8. The matter may also be examined on merits though it may not be necessary to do so in view of the earlier finding. The contention of Sri S.P. Gupta, learned Senior Counsel for the petitioner is 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 under Section 11 of the Act within a period of two years from the date of publication of the declaration under Section 6 of the Act particularly when the petitioner is still in physical possession of the land and in support of this contention he has placed reliance upon various averments made in the Supplementary Affidavit and upon the Division Bench judgment of this Court in Anil Kumar v. State of U.P. and others, 2008 (2) AWC 1832. 9. 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 under Section 9(1) of the Act. the possession of the land had been taken by the State and handed over to the acquiring body NOIDA on 31st March, 2004 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 others, (2005) 12 SCC 489 ; State of T.N. and another v. Mahalakshmi Ammal and others, (1996) 7 SCC 269 and Satendra Prasad Jain and others v. State of U.P. and others, AIR 1993 SC 2517 . 10. 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 under Section 6 of the Act. In the present case what has to be noticed is that at the time of issuance of the notification under Section 4(1) of the Act, urgency provisions were resorted to and the enquiry under Section 5-A of the Act was exempted. In the present case what has to be noticed is that at the time of issuance of the notification under Section 4(1) of the Act, urgency provisions were resorted to and the enquiry under Section 5-A of the Act was exempted. In the declaration under Section 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 under Section 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 NOIDA on 31st March, 2004 and in this connection certificate dated 31st March, 2004 has been annexed as Annexure ‘CA-1 to the counter affidavit. 11. The issue that arises for consideration in the present case is about the applicability of the provisions of Section 11-A of the Act. 12. 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 under Section 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. 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 under Section 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 under Section 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 under Section 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." 13. It has, therefore, to be seen whether possession of the land was taken by the State in the present case. 14. A perusal of the certificate dated 31st March, 2004 indicates that the ADM (Land Acquisition) had directed the Amin to transfer possession of the land mentioned in the declaration under Section 6 of the Act to the officers of the acquiring body NOIDA on 31st March, 2004. There are signatures at the bottom of the certificate of the Amin and the officers of the NOIDA authorities. 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. 15. It is the submission of Sri S.P. Gupta, learned Senior 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. 15. It is the submission of Sri S.P. Gupta, learned Senior 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 Anil Kumar (supra) on which reliance has been placed by the learned Senior Counsel for the petitioner, the Court noticed that in order to dispossess the persons interested some positive action has to be taken by the Collector or his nominee and Panchnama is a condition precedent for establishing that the possession has been taken. 16. 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 under Section 16 divested in the illegal occupant. Considered from this perspective, we hold that the High Court was not justified in interfering with the award." (emphasis supplied) 17. Similar observations were made by the Supreme Court in P.K. Kalburqui (supra) and the relevant observations are as follows : "Moreover, the Honble 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 v. M.D. Bhagwat, (1976) 1 SCC 700 , 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." (emphasis supplied) 18. In the counter affidavit, it has been stated that the land of which possession was given to NOIDA on 31st March, 2004 was an open piece of land with no structures or constructions standing over it. It has also been stated that NOIDA has commenced development activities in respect of the acquired land for construction of Sports City which has to be completed for the forthcoming Commonwealth Games in New Delhi-2010. 19. 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 NOIDA on 31st March, 2004 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. 20. The Supreme Court also observed that any irregularity in taking possession does not confer any benefit to the land owner. 20. 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 petitioner, therefore, has no case on merits also. 21. The petition, therefore, deserves to be dismissed and is, accordingly, dismissed. ————