TaxTMI 
TaxTMI 
2011 (11) TMI 892
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....9;. In its fifth and final report, the National Commission on Farmers headed by Dr. M.S. Swaminathan observed that prime farmland must be conserved for agriculture and should not be diverted for non-agricultural purposes, else it would seriously affect availability of food in the country where 60% population still depends on agriculture and people living below poverty line are finding it difficult to survive. 5. Unfortunately, these words of wisdom appear to have become irrelevant for the State apparatus which has used the Land Acquisition Act, 1894 (for short, 'the Act') in last two decades for massive acquisition of the agricultural land in different parts of the country, which has not only adversely impacted the farmers, but also generated huge litigation adjudication consumes substantial time of the Courts. These appeals filed against orders dated 17.5.2010 and 19.11.2010 of the Division Bench of the Punjab and Haryana High Court is one of many such cases which the landowners are compelled to file with the hope that by Court's intervention they will be able to save their land. 6. The Appellant purchased 8 Kanals 4 Marlas land in village Jatheri, District Sonep....
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....s averred that the notifications issued under Sections 4(1) and 6(1) were duly published; that the Appellant was given opportunity of personal hearing and that after issue of declaration under Section 6(1), the Land Acquisition Collector passed the award. It was further averred that possession of the acquired land had been taken and delivered to Haryana State Industrial Infrastructure Development Corporation (HSIIDC) on 28.11.2008. 10. The Appellant filed rejoinder affidavit and reiterated that the notifications issued under Sections 4(1) and 6(1) had not been duly published; that he was not given opportunity of hearing by the Land Acquisition Collector; that notice had not been served upon him as per the mandate of Section 9(3). He also pleaded that possession of land was still with him and the paper possession taken by the Respondents was inconsequential. 11. The Division Bench of the High Court did not examine the grounds on which the Appellant challenged the acquisition of his land and dismissed the writ petition by relying upon the judgments of this Court in Municipal Corporation of Greater Bombay v. Industrial Development and Investment Company (P) Limited (1996) 11 SCC....
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....o S/Shri Madan Lal s/o. Shri Jagdish, Ram Singh s/o. Chhote Lal, Jai Bhagwan s/o. of Hoshiar Singh, Mukhtar Singh s/o. Lakhi Ram, Rajender Singh s/o. Hoshiar Singh, Mohinder Singh s/o. Swarup Singh, the Appellant and his wife Smt. Moorti Devi and pointed out that while other addressees acknowledged the receipt of notices by putting their signatures, the notices shown as duly served upon the Appellant and his wife do not contain their signatures acknowledging the receipt thereof. Learned senior counsel also invited our attention to Annexure R-3 filed with the counter affidavit of the Respondents to show that the name of the Appellant's wife has been shown as Moorti Devi widow of Raghbir though he is very much alive. He then pointed out that the signatures appended against the Appellant's name in the list of objectors, who are said to have appeared before the Land Acquisition Collector on 29.10.2006 are not that of the Appellant and someone had forged the signatures to show his presence. Learned senior counsel submitted that notice under Section 9(3) was not served upon the Appellant before passing of award dated 28.11.2008 and physical possession of the acquired land is stil....
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....aced on record as Annexure R-1 along with affidavit dated 12.8.2011 of Shri Yogesh Mohan Mehra, Senior Manager (IA), HSIIDC to show that the acquired land has already been utilised for development of industrial estate and plots have been allotted to entrepreneurs, who are desirous of setting up industries. He submitted that HSIIDC has taken up development of the acquired land at an estimated cost of rupees fifty eight crores and submitted that the acquisition of the Appellant's land may not be quashed at this stage because 24 meter wide road has already been constructed through his land. 15. We have considered the respective submissions and carefully scrutinized the record. 16. Since the Appellant has been non suited by the High Court only on the ground that possession of the acquired land had been taken by the concerned officers and the same will be deemed to have vested in the State Government free from all encumbrances, we think that it will be appropriate to first consider this facet of his challenge to the impugned orders. In the writ petition filed by him, the Appellant categorically averred that physical possession of the acquired land was with him and he has been ....
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....d the relevant records and scrutinized the same, it would not have summarily dismissed the writ petition on the premise that possession of the acquired land had been taken and the same vested in the State Government. 17. The legality of the mode and manner of taking possession of the acquired land has been considered in a number of cases. In Balwant Narayan Bhagde v. M.D. Bhagwat (1976) 1 SCC 700, Untwalia, J. referred to provisions of Order 21 Rules 35, 36, 95 and 96 of the Code of Civil Procedure and opined that delivery of symbolic possession should be construed as delivery of actual possession of the right, title and interest of the judgment-debtor. His Lordship further observed that if the property is land over which there is no building or structure, then delivery of possession over the judgment-debtor's property becomes complete and effective against him the moment the delivery is effected by going upon the land. The learned Judge went on to say: When a public notice is published at a convenient place or near the land to be taken stating that the Government intends to take possession of the land, then ordinarily and generally there should be no question of re....
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....actual possession of the land. How such possession may 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. We should not, therefore, be taken as laying down an absolute and inviolable rule that merely going on the spot and making a declaration by beat of drum or otherwise would be sufficient to constitute taking of possession of land in every case. But here, in our opinion, since the land was lying fallow and there was no crop on it at the material time, the act of the Tahsildar in going on the spot and inspecting the land for the purpose of determining what part was waste and arable and should, therefore, be taken possession of and determining its extent, was sufficient to constitute taking of possession. It appears that the Appellant was not present when this was done by the Tahsildar, but the presence of the owner or the occupant of the land is not necessary to effectuate the taking of possession. It is also not strictly necessary as a matter of legal requirement that notice should be give....
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....n furtherance of the particular public purpose, then the court may reasonably presume that possession of the acquired land has been taken. 19. If the Appellant's case is examined in the light of the propositions culled out in Banda Development Authority, Banda v. Moti Lal Agarwal and Ors. we have no hesitation to hold that possession of the acquired land had not been taken from the Appellant on 28.11.2008, i.e. the day on which the award was declared by the Land Acquisition Collector because crops were standing on several parcels of land including the Appellant's land and possession thereof could not have been taken without giving notice to the landowners. That apart, it was humanly impossible to give notice to large number of persons on the same day and take actual possession of land comprised in various survey numbers (total measuring 214 Acres 5 Kanals and 2 Marlas). 20. In view of the above discussion, we hold that the record prepared by the revenue authorities showing delivery of possession of the acquired land to HSIIDC has no legal sanctity and the High Court committed serious error by dismissing the writ petition on the specious ground that possession of the a....
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....egation of the Appellant's challenge to the acquisition of his land. 22. The next issue which merits consideration is whether the acquisition of the Appellant's land is vitiated due to violation of Section 5A(2) and the rules of natural justice. A careful scrutiny of record reveals that the Land Acquisition Collector had fixed 29.10.2006 as the date for hearing the objections. He issued notices dated 2.11.2006 to inform the objectors that hearing will take place on 29.11.2006 at 11 a.m. in P.W.D. Rest House, Rai and asked them to appear either in person or through their agent. The notices were delivered to some of the landowners, who acknowledged the receipt thereof. However, the notices issued to the Appellant and his wife were not served upon them. This is evident from the fact that other objectors had acknowledged the receipt of notices by putting their signatures, the notices allegedly served upon the Appellant and his wife do not bear their signatures and no explanation has been offered by the Respondents about this omission. The Land Acquisition Collector proceeded to decide the objections by assuming that the notice has been delivered to all the objectors. Not onl....
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....on 5A. In State of Punjab v. Gurdial Singh (1980) 2 SCC 471, this Court observed: '.it is fundamental that compulsory taking of a man's property is a serious matter and the smaller the man the more serious the matter. Hearing him before depriving him is both reasonable and pre-emptive of arbitrariness, and denial of this administrative fairness is constitutional anathema except for good reasons. Save in real urgency where public interest does not brook even the minimum time needed to give a hearing land acquisition authorities should not, having regard to Articles 14 (and 19), burke an enquiry under Section 17 of the Act. Here a slumbering process, pending for years and suddenly exciting itself into immediate forcible taking, makes a travesty of emergency power. In Shyam Nandan Prasad v. State of Bihar (1993) 4 SCC 255, this Court reiterated that compliance with provisions of Section 5A is sine qua non for valid acquisition and observed as under: The decision of the Collector is supposedly final unless the appropriate Government chooses to interfere therein and cause affectation, suo motu or on the application of any person interested in the land. Th....
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.... words, the recommendations made by the Collector must reflect objective application of mind to the objections filed by the landowners and other interested persons. 26. Before concluding, we deem it necessary to observe that in recent past, various State Governments and their functionaries have adopted very casual approach in dealing with matters relating to the acquisition of land in general and the rural areas in particular and in a large number of cases, the notifications issued under Sections 4(1) and 6(1) with or without the aid of Section 17 and the consequential actions have been nullified by the Courts on the ground of violation of the mandatory procedure and the rules of natural justice. The disposal of cases filed by the landowners and Ors. take some time and the resultant delay has great adverse impact on implementation of the projects of public importance. of course, the delay in deciding such cases may not be of much significance when the State and its agencies want to confer benefit upon private parties by acquiring land in the name of public purpose. It if difficult, if not impossible, to appreciate as to why the State and its instrumentalities resort to massive a....