TaxTMI 
TaxTMI 
TaxTMI 
2011 (4) TMI 1326
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....ent acquired 103 bighas land situated in Ladakapurwa and Bhawanipur villages, Pargana and District Banda for Tulsi Nagar Residential Scheme of the Banda Development Authority (for short, "the BDA"). Both the notifications were published in the manner prescribed under Sections 4(1) and 6(2) respectively. 4. On 5.6.2000, the Secretary of the BDA deposited Rs. 63,47,855.07 towards 80% of the compensation payable in lieu of the acquisition of 103 bighas land. This was in compliance of the mandate of Section 17(3A). The concerned authorities of the State delivered possession of the acquired land to the BDA on 30.6.2001. The officers of the Revenue Department visited the site on 4.9.2001 and prepared the Field Book, copy of which has been produced before this Court along with affidavit dated 19.1.2011 of Shri Biri Singh, Executive Engineer, BDA. The Special Land Acquisition Officer passed award dated 14.6.2002 for the acquired land including plot No.795 of which 5 bighas 5 biswas was purchased by respondent No.1 vide registered sale deed dated 4.10.1982. 5. In the meanwhile, the BDA prepared lay out for the acquired land which was sanctioned by its Board on 8.5.2002. Ther....
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....ies. In paragraphs 2, 3 and 4 of his affidavit, Shri Har Govind Swarnkar, Assistant Engineer, averred as under: "2. That present supplementary counter affidavit has been necessitated as the petitioner through rejoinder affidavit to the counter affidavit filed on behalf of respondents no.1, 2 and 3 has brought on record the copies of Khasra for the year 1407- 1411 fasli.3. That 1407 fasli is from 1st July, 1999 to 30th June, 2000 to 30th June, 2001. Similarly 1409 fasli is for the year 2001-02, 1410 fasli is for the year 2002-03, 1411 & 1412 fasli is for the year 2003-04 and 2004-05. 4. The perusal of these Khasras shows that there is no entry of sowing any crop in 1410-1412 fasli, namely no crop was shown and they were, admittedly, not in possession from July, 2002 towards. Possession has been taken from petitioner on 30.6.2001. 30.6.2001 corresponds to end of 1408 fasli. It is thus clear that petitioner was not in possession after 30.6.2001. Entry of sowing any crop in Khasra 1409 is patently erroneous since in 1409 fasli i.e. from 1st July, 2001 petitioner was not in possession. This entry is incorrect and no crop has been sown after possession was taken on 30.6.2....
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....ap v. State of Rajasthan (1996) 3 SCC 1, Allahabad Development Authority v. Nasiruzzaman (1996) 6 SCC 424, Government of A.P. v. Kollutla Obi Reddy (2005) 6 SCC 493 and argued that Section 11A is not applicable to the cases in which the land is acquired by invoking the emergency provisions contained in Section 17(1) and 17(4). He submitted that the High Court committed serious error by quashing the acquisition proceedings on the premise that physical possession of the acquired land had not been taken on 30.6.2001 Learned counsel referred to letter dated 5.6.2000 vide which the BDA deposited a sum of Rs. 63,47,855.07 towards the compensation payable to the land owners and submitted that the exercise undertaken for taking possession of the acquired land by the concerned authorities of the State and delivery thereof to the BDA could not have been brushed aside by the High Court by describing it as symbolic/paper possession. 12. Shri W.H. Khan, learned senior counsel appearing for respondent No.1 supported the order under challenge and argued that the High Court rightly annulled the acquisition proceedings because physical possession of the land was taken only on 30.7.2002 and ....
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....he plot it was not possible to acquire and give its compensation. Defendant No. 3 called for a report from Tehsildar, Banda regarding plot no.795 on the basis of possession and sub-division. After due inspection on the spot Tehsildar sent its detailed report dated 30.3.2001 to the defendant no. 3 stating clearly the sub-divided shares as follows:- Sr. No. Plot no. Rakba Farmer Name 795/1 06-16-10 Nathu, Shakhawat and Srikrishna 795/2 09-08-05 Smt. Shashi Devi 795/3 05-05-00 Motllal 795/4 04-03-05 Shiv Devi 795/5 12-00-00 Nathu, Sakhawat and Srikrishna 6. That according to Land Record Manual the provision to enter numbers in an account is to start numbering vis 1,2,3,4 from north-west to south east. In accordance to this provision only the above said sub-division was done which is also lawful. The plaintiff has no objection with the sub-division. 8. T hat it is important to c larify h ere t hat t he plaintiff d oes not have any o bjection t o the acquisition proceedings or the plot no.s which are subject to the acquisition. The plaintiff only states that acquisition be done only after sub-division of 7....
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.... acquisition of land or taking of possession by the State Government and delivery thereof to the BDA and the only prayer made by him was that the defendants be directed to undertake fresh acquisition proceedings after sub-dividing plot No. 795 so that he may get his share of compensation. He filed writ petition questioning the acquisition proceedings after almost 9 years of publication of the declaration issued under Section 6(1) and about six years of the pronouncement of award by the Special Land Acquisition Officer. During this interregnum, the BDA took possession of the acquired land after depositing 80% of the compensation in terms of Section 17(3A), prepared the layout, developed the acquired land, carved out plots, constructed flats for economically weaker sections of the society, invited applications and allotted plots and flats to the eligible persons belonging to economically weaker sections as also LIG, MIG and HIG categories. Unfortunately, the High Court ignored all this and allowed the writ petition on the specious ground that the acquired land did not vest in the State Government because physical possession of the land belonging to respondent No.1 was not taken till ....
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....e Limitation Act do not as such apply to the granting of relief under Art 226. It appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a Civil Court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. The court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the court to hold that it is unreasonable." 17. In matters involving challenge to the acquisition of land for public purpose, this Court has consistently held that delay in filing the writ petition should be viewed seriously and relief denied to the petitioner if he fails to offer plausible explanation for the delay. The Court has also held that the delay of even few years would be fatal to the cause of the petitioner, if the acquired land has been partly or wholly utilised for the public purpose. 18. In Ajodhya Bhagat v. State of Bihar (1974) 2 SCC 501, this Court approved dismissal by the High Court o....
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....writ petition and when all steps taken in the acquisition proceedings have become final, the Court should be loath to quash the notifications. The High Court has, no doubt, discretionary powers under Article 226 of the Constitution to quash the notification under Section 4(1) and declaration under Section 6. But it should be exercised taking all relevant factors into pragmatic consideration. When the award was passed and possession was taken, the Court should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226. The fact that no third party rights were created in the case is hardly a ground for interference. The Division Bench of the High Court was not right in interfering with the discretion exercised by the learned Single Judge dismissing the writ petition on the ground of laches." 22. In Urban Improvement Trust, Udaipur v. Bheru Lal (2002) 7 SCC 712, this Court reversed the order of the Rajasthan High Court and held that the writ petition filed for quashing of acquisition of land for a residential scheme framed by the appellant-Urban Improvement Trust was liable to be dismi....
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.... water and sewer lines etc. the BDA carved out plots, constructed flats for economically weaker sections and lower income group, invited applications for allotment of the plots and flats from general as well as reserved categories and allotted the same to eligible persons. In the process, the BDA not only incurred huge expenditure but also created third party rights. In this scenario, the delay of nine years from the date of publication of the declaration issued under Section 6(1) and almost six years from the date of passing of award should have been treated by the High Court as more than sufficient for denying equitable relief to respondent No.1. 26. The two judgments relied upon by the learned counsel for respondent No.1 are not helpful to the cause of his client. In Vyalikaval Housebuilding Coop. Society v. V. Chandrappa (2007) 9 SCC 304, this Court held that where the acquisition was found to be vitiated by fraud and mala fide, the delay in filing the writ petition cannot be made a ground for denying relief to the affected person. In Babu Ram v. State of Haryana (supra), this Court held that the appellant cannot be denied relief merely because there was some delay in f....
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....ndent No.1 succeeded in convincing the High Court that physical possession of his land had not been taken till 31.7.2002, after carefully perusing the record, we are convinced that the finding recorded on this issue is unsustainable. In paragraphs 8 and 11 of the plaint filed by him in the Court of Civil Judge (Senior Division), Banda, respondent No.1 had virtually admitted that possession of the acquired land was with the BDA. If this was not so, there was no occasion for him to make a grievance that the land had been demarcated by putting stones and the BDA was in the process of raising construction. That apart, respondent No. 1 did not deny the statements contained in the affidavits filed before the High Court that the revenue authorities visited the spot and made entries in the Field Book regarding delivery of possession. The photographs produced by the parties before this Court show that after taking possession of the acquired land, the BDA constructed roads,buildings etc., laid sewer lines and erected poles for electric lines. The photographs also reveal that by taking advantage of the impugned order, respondent No.1 took possession of a portion of the land on which the BDA h....
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..... It may be in the form of a declaration by beat of drum or otherwise or by hanging a written declaration on the spot that the authority has taken possession of the land. The presence of the owner or the occupant of the land to effectuate the taking of possession is not necessary. No further notice beyond that under Section 9(1) of the Act is required. When possession has been taken, the owner or the occupant of the land is dispossessed. Once possession has been taken the land vests in the Government. Bhagwati J., (as he then was), speaking for himself and Gupta, J. disagreed with Untwalia, J. and observed: ".........We think it is enough to state that when the Government proceeds to take possession of the land acquired by it under the Land Acquisition Act, 1894, it must take actual possession of the land, since all interests in the land are sought to be acquired by it. There can be no question of taking "symbolical" possession in the sense understood by judicial decisions under the Code of Civil Procedure. Nor would possession merely on paper be enough. What the Act contemplates as a necessary condition of vesting of the land in the Government is the taking of actual posse....
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....ing possession of the land. Subsequent thereto, the retention of possession would tantamount only to illegal or unlawful possession". 30. In P.K. Kalburqi v. State of Karnataka (2005) 12 SCC 489, the Court referred to the observations made by Bhagwati, J. in Balwant Narayan Bhagde v. M.D. Bhagwat (supra) that no hard and fast rule can be laid down as to what act would be sufficient to constitute taking of possession of the acquired land and observed that when there is no crop or structure on the land only symbolic possession could be taken. 31. In NTPC v. Mahesh Dutta (2009) 8 SCC 339, the Court noted that appellant NTPC paid 80 per cent of the total compensation in terms of Section 17(3A) and observed that it is difficult to comprehend that after depositing that much of amount it had obtained possession only on a small fraction of land. 32. In Sita Ram Bhandar Society v. Govt. of NCT, Delhi (2009) 10 SCC 501 and Omprakash Verma v. State of Andhra Pradesh (2010) 13 SCC 158, it was held that when possession is to be taken of a large tract of land then it is permissible to take possession by a properly executed panchnama. Similar view was expressed in the rece....
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.... spot and prepare panchnama showing delivery of possession was sufficient for recording a finding that actual possession of the entire acquired land had been taken and handed over to the BDA. The utilization of the major portion of the acquired land for the public purpose for which it was acquired is clearly indicative of the fact that actual possession of the acquired land had been taken by the BDA. 36. Once it is held that possession of the acquired land was handed over to the BDA on 30.6.2001, the view taken by the High Court that the acquisition proceedings had lapsed due to non-compliance of Section 11A cannot be sustained. In Satendra Prasad Jain v. State of U.P. (supra), this Court considered the applicability of Section 11A in cases involving acquisition of land under Section 4 read with Section 17 and observed: "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 pr....