TMI Blog2011 (4) TMI 1326X X X X Extracts X X X X X X X X Extracts X X X X ..... iled by respondent No.1-Moti Lal Agarwal in 2008 for nullifying the acquisition of his land by the State Government vide notification dated 8.9.1998 issued under Section 4(1) read with Section 17(1) and 17(4) of the Land Acquisition Act, 1894 (for short, the Act ) which was followed by declaration dated 7.9.1999 issued under Section 6(1) read with Section 17(1) on the ground of non passing of award within the time prescribed under Section 11A. 3. By the notifications referred in the preceding paragraph, the State Government 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 ₹ 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 Departme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed with Smt. Shashi Devi and other interested persons and reflected him as tenure holder of that plot. 8. The thrust of the affidavits filed by Shri Mam Chand, Executive Engineer and Shri Har Govind Swarnkar, Assistant Engineer on behalf of the BDA was that after taking possession of the acquired land, the BDA constructed roads and nalis, laid pipelines for supply of water and also erected poles for electric lines and plots carved out from the acquired land were allotted to people belonging to different categories. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lats for the economically weaker sections and lower income groups. Shri Patwalia submitted that respondent No.1 cannot justify belated filing of the writ petition on the ground that he was prosecuting the case in the civil Court because in the suit he had not prayed for quashing the notifications issued under Sections 4(1) and 6(1). Learned senior counsel relied upon the judgments of this Court in Satendra Prasad Jain v. State of U.P. (supra), Awadh Bihari Yadav v. State of Bihar (1995) 6 SCC 31, Pratap 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 ₹ 63,47,855.07 towards the compensation payable to the land owners and submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to defendant No.4 on papers and they were trying to start construction after taking possession of his land. This is evident from paragraphs 5, 6, 8, 10 and 11 of the plaint, which are extracted below: 5. That description of the disputed plot which has acquired by the Gazette Notification is given as plot no.795 Rakba 12 Bigha and 795/2 Rakba 5 Bigha 5 Biswa. At the time of acquisition proceedings this fact came to liaht that olot no. 795 has not been sub-divided. Without sub-division of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prayer made in the plaint, which is extracted below, also shows that respondent No.1 had not questioned the acquisition proceedings: That the defendants be directed by order of Mandatory Injunction to start afresh the proceedings of acquisition and disbursement of compensation after sub-dividing and numbering plot no. 795 in accordance with para no. 63 of the Land Record Manual. In the alternative acquire the land from all the account holders and thereby proportionally pay them respective compensation. 14. The above extracted portions of the plaint unmistakably show that respondent No.1 had no complaint against the 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 po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writs in the nature of mandamus. Among the several matters which the High Courts rightly take into consideration in the exercise of that discretion is the delay made by the aggrieved party in seeking this special remedy and what excuse there is for It is not easy nor is it desirable to lay down any Rule for universal application. It may however be stated as a general Rule that if there has been unreasonable delay the court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus. Learned counsel is right in his submission that the provisions of the 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 un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine to grant the relief, even if it holds that the order was void. The net result is that extraordinary jurisdiction of the Court may not be exercised in such circumstances .. 20. In Girdharan Prasad Missir v. State of Bihar (1980) 2 SCC 83, the delay of 17 months was considered as a good ground for declining relief to the petitioner. 21. In Municipal Corporation of Greater Bombay v. Industrial Development Investment Co. Pvt. Ltd. (1996) 11 SCC 501, this Court held: It is thus well-settled law that when there is inordinate delay in filing the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that they could not be aware of the acquisition proceedings for the reason that a very huge chunk of land belonging to a large number of tenure-holders had been notified for acquisition. Therefore, it should have been the talk of the town. Thus, it cannot be presumed that the petitioners could not have knowledge of the acquisition proceedings. 25. In this case, the acquired land was utilized for implementing Tulsi Nagar Residential Scheme inasmuch as after carrying out necessary development i.e. construction of roads, laying electricity, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) and (4), which was followed by a declaration issued under Section 6(1) read with Section 17(1). By notification dated 7.9.1999, the Governor had directed Collector, Banda to take possession of the acquired land on the expiration of 15 days from the issue of notice under Section 9(1). In furtherance of the direction given by the Collector, the concerned revenue authorities took possession of the acquired land, which, as mentioned above, has already been utilized for implementing Tulsi Nagar Residential Scheme. Though, respondent 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 stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin the meaning of Section 16 or 17 (1) means taking of possession on the spot. It is neither a possession on paper nor a symbolical possession as generally understood in civil law. But the question is what is the mode of taking possession? The Act is silent on the point. Unless possession is taken by the written agreement of the party concerned the mode of taking possession obviously would be for the authority to go upon the land and to do some act which would indicate that the authority has taken possession of the land. 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 Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gamut of the acquisition proceedings stood completed by 17-4-1976 by which date possession of the land had been taken. No doubt, Shri Parekh has contended that the appellant still retained their possession. It is now well-settled legal position that it is difficult to take physical possession of the land under compulsory acquisition. The normal mode of taking possession is drafting the panchnama in the presence of panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. v) If beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3A) and substantial portion of the acquired land has been utilised in furtherance of the particular public purpose, then the Court may reasonably presume that possession of the acquired land has been taken. 35. In the light of the above discussion, we hold that the action of the concerned State authorities to go to the 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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