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2009 (7) TMI 1291 - SUPREME COURT

2009 (7) TMI 1291 - SUPREME COURT - (2009) 8 SCC 339 - Civil Appeal Nos. 6228-6229 of 2002 - Dated:- 16-7-2009 - S.B. SINHA AND CYRIAC JOSEPH JJ. UDGMENT S.B. SINHA, J : 1. As all the cases involve similar questions of fact and law, they were taken up for hearing together and are being disposed of by this common judgment. 2. We may, however notice the fact of the matter involved in Civil Appeal Nos.6228-6229 of 2002. Appellant is a Government of India Undertaking (NTPC). It is engaged in the bus .....

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State to acquire 105 Bighas 2 Biswas and 16 Biswanis (equivalent to 65.7125 acres) of lands situated at the aforementioned village. It was published in the Official Gazette on 8th September, 1984 4. On the premise that generation of electricity was extremely urgent and National Capital Region faced acute shortage of electricity, the emergency provisions contained in Sections 17(1) and 17(4) of the Act were invoked. A declaration in terms of Section 6 of the Act was issued on 26th September, 1984 .....

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which reads as under :- "POSSESSION CERTIFICATE LAND PERMANENT REQUIRED FOR THE PLANNED Industrial Construction of NTPC Plant, District Ghaziabad through the NTPC Ltd., Ghaziabad Certified that I on behalf of the Collector, Ghaziabad have on this day the 16.11.1984 taken over the possession of the land detailed below comprising an area 105 B - 2Bs-16B or 6751.3 acres and (not legible (name not ligible) of D.L.A.O's Office to hand over the possession of the same land to the NTPC Ltd., Gh .....

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the appellant contended that it had obtained the requisitioned physical possession of land admeasuring 10.215 acres only and the rest of the land continued to remain in possession of the land owners. It is stated that the Ministry of Environment made recommendations that the choice of place for setting up a Thermal Power Station, having regard to its proximity to the National Capital being incorrect, the site thereof should be shifted. Pursuant thereto or in furtherance thereof, the site of the .....

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sq. yds. in respect of two references made separately before it. 8. First appeals were preferred there against in February, 1984 by NTPC before the High Court. Inter alia on the premise that possession of the entire land of 65.713 acres had not been obtained, the District Magistrate was approached for issuance of a notification denotifying the acquisition of the balance area i.e. for withdrawal of acquisition of land admeasuring 55.498 acres. 9. By its letter dated 24th February, 1986, NTPC sub .....

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ddinpur. In Sarna, advance compensation has been paid to most of the persons affected while in Khurrampur only a few persons have been paid the advance compensation. In cases of Sultanpur, Jalalpur and Khurrampur villages - we did not get physical possession and the land owners continue to be in possession their lands even now. In many cases, their crops are standing on the land in question. Further, it may be added that the Land Acquisition Amendment Act 1984 came into force w.e.f. 24.9.1984. A .....

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be acquired. Similarly, in the village of Mohiuddinpur Hissali, no compensation has been paid. It is understood that some mutations in respect of lands of these villages in favour of NTPC have been made in the revenue records. Obviously there appears to be some discrepancy. Since no legally valid possession has been given to NTPC nor land owners have allowed NTPC to take possession of these lands, mutations in revenue records made need to be set right by necessary correction proceedings. It is, .....

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gust, 1994 an inspection was carried by the Land Acquisition Amin, Naib Tehsildar together with the representatives of NTPC and as per the report submitted pursuant thereto, the appellant is said to have been found in possession of only 10.215 acres of land. 11. On 11th November, 1994 the State of U.P. issued a Notification in terms of Section 48 of the Act. Aggrieved, respondents filed a writ application before the High Court on or about 29th August, 1995 and a Division Bench of the High Court .....

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pellant (NTPC) against the order of the Reference Court dated 22nd October, 1993. We shall deal with the said matter separately. 13. Mr. Raju Ramachandran, learned senior counsel appearing on behalf of the NTPC would contend that although in the event possession had been taken by the Collector from the land owners, Section 48 of the Act will have no application but in view of the fact that possession of 55.498 acres of land had not been delivered in favour of NTPC and merely a symbolic possessio .....

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regard to the certificate of possession issued by the Collector on 16th November, 1984 under the provisions of the Act, stating possession of entire land had been taken and the details thereof having been mentioned in the said certificate itself, it is too late in the day for the appellant/NTPC to contend that possession of a major portion of the land had was not taken over. (iii) The fact that the possession of the entire land had been taken over not only would appear from the materials brought .....

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ons contained in Section 17 of the Act were resorted to. Sub-sections (1), (3A) and 4 of the Act read as under :- "17. Special powers in cases of urgency.- (1) In cases of urgency, whenever the Appropriate Government so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in section 9, sub-section (1), 1 [take possession of any waste or arable land needed for a public purpose]. Such land shall thereup .....

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(2), and where the Collector is so prevented, the provisions of section 31, sub-section (2), (except the second proviso thereto), shall apply as they apply to the payment of compensation under that section. (4) In the case of any land to which, in the opinion of the appropriate Government, the provisions of sub-section (1) or sub-section (2) are applicable, the appropriate Government may direct that the provisions of section 5A shall not apply, and, if it does not so direct, a declaration may b .....

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of the Act providing for taking over possession of the land after making the Award would not be applicable in this case as possession is said to have already been taken over in terms of sub-section (1) of Section 17 thereof. It is in the aforementioned backdrop of factual matrix, the power of the State to withdraw the Notification of acquisition as envisaged under Section 48 of the Act falls for our consideration. The said provision is as under :- "Section 48 - Completion of acquisition not .....

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interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land. (3) The provisions of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this section." 18. It is a well settled proposition of law that in the event possession of the land, in respect whereof a Notification had been issued, had been taken over, the State would be denuded of its power to withdra .....

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oticed hereinbefore the background facts. The emergency provisions were resorted to. Even 80% of the compensation had been paid way back in 1984. Had possession of the vacant land been not taken, the question of payment of 80 % of compensation would not have arisen. All other legal requirements to invoke the said provision have been complied with. 21. Mr. Raju Ramachandran, however, would draw our attention to a letter dated 24.2.1986 issued by the appellant to the District Magistrate to contend .....

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ince the land is in actual physical possession of the land owners and they are deriving all the benefits from the land thereof and the respondent is having only a symbolic possession over the same." 22. We, however, have not been able to persuade ourselves to agree with the aforementioned submissions. The Officers of the appellant themselves were parties in regard to the process of actual physical possession obtained on its behalf by the Collector. 23. Even in the award made by the Special .....

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the said award : "4. 12% additional from 8.9.84 i.e. from the date of notification till date of possession i.e. on 16.11.84 : ₹ 1,46,531.69" 24. From a perusal of the award, therefore, it is evident that not only the provisions of Section 17 of the Act were found to have been implemented but even interest had been granted from the date of acquisition, namely, from the date of taking over of possession. Interest had also been granted in terms of Section 23A of the Act from the dat .....

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y invoking Section 17 of the Act on 16.11.1984 and, thus, interest at the rate of 15% per annum on the excess amount under the provisions of Section 28 of the Act would be payble only in the case where such excess payment had not been made before the expiry of one year period from the date on which the possession has been taken and as determined by the Court. In view of the stand taken by the appellant before the Land Acquisition Authorities as also the reference court and the High Court, in our .....

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upon a decision of this Court in Balwant Narayan Bhagde v. M.D. Bhagwat, [ AIR 1975 SC 1967 = (1976) 1 SCC 70], wherein it has been held :- "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 .....

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on 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 Tehsildar in going on the spot and inspecting the land for the purpose of determining what part was waste and arable and .....

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r time, though it may be desirable where possible, to give such notice before possession is taken by the authorities, as that would eliminate the possibility of any fraudulent or collusive transaction of taking of mere paper possession, without the occupant or the owner ever coming to know of it." This decision, therefore, itself is an authority for the proposition that no absolute rule in this behalf can be laid down. In Larsen & Toubro Ltd. v. State of Gujarat & Ors. [(1998) 4 SCC .....

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be enough. It is, however, the positive stand by the appellant that the lands in question are agricultural land and crops used to be grown therein. If the lands in question are agricultural lands, not only actual physical possession had to be taken but also they were required to be properly demarcated. If the land had standing crops, as has been contended by Mr. Raju Ramachandran, steps in relation thereto were required to be taken by the Collector. Even in the said certificate of possession, i .....

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ect or incorrect. It cannot be partially correct or partially incorrect. Either the possession had actually been delivered or had not been delivered. It cannot be accepted that possession had been delivered in respect of about 10 acres of land and the possession could not be taken in respect of the rest 55 acres of land. When the provisions of Section 17 are taken recourse to, vesting of the land takes effect immediately. 30. Another striking feature of the case is that all the actions had been .....

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es of land. It raised constructions thereover. It is difficult to comprehend that if the NTPC had paid 80% of the total compensation as provided for under sub-section (3A) of Section 17 of the Act, out of 65.713 acres of land it had obtained possession only in respect of about 10.215 acres of land and still for such a long time it kept mum. Ex-facie, therefore, it is difficult to accept that merely symbolic possession had been taken. In Lt. Governor of Hmachal Pradesh & Anr. v. Sri Avinash S .....

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other view would enable the State Government to circumvent the specific provision by relying upon a general power. When possession of the land is taken under Section 17(1), the land vests in the Government. There is no provision by which land statutorily vested in the Government reverts to the original owner by mere cancellation of the notification." The said view was affirmed in Satendra Prasad Jain & Ors. v. State of U.P. & Ors. [(1993) 4 SCC 369], in the context of applicablility .....

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sion in the said Act by which land statutorily vested in the Government can revert to the owner." In Pratap & Anr. v. State of Rajasthan & Ors. [(1996) 3 SCC 1], a Three Judge Bench of this Court opined as under : "12. The provisions of sub-section (4) of Section 52 are somewhat similar to Section 17 of the Land Acquisition Act, 1894. Just as publication of a notification under Section 52(1) vests the land in the State, free from all encumbrances, as provided by Section 52(4), .....

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Government could not withdraw from acquisition under Section 48 and the provisions of Section 11- A were not attracted and, therefore, the acquisition proceedings would not lapse on failure to make an award within the period prescribed therein. It was further held that non-compliance of Section 17(3- A), regarding part payment of compensation before taking possession, would also not render the possession illegal and entitle the Government to withdraw from acquisition. The aforesaid principle ha .....

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it was held : "In Satendra Prasad Jain v. State of U.P.6, the question arose: whether notification under Section 4(1) and the declaration under Section 6 get lapsed if the award is not made within two years as envisaged under Section 11-A? A Bench of three Judges had held that once possession was taken and the land vested in the Government, title to the land so vested in the State is subject only to determination of compensation and to pay the same to the owner. Divesting the title to the .....

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rcise of the power to quash the notification under Section 4(1) and the declaration under Section 6 would lead to incongruity." 31. Yet again, in Tamil Nadu Housing Board v. A. Viswam(Dead) by Lrs. [(1996) 8 SCC 259], this Court has categorically laid down that when the accepted mode of taking possession of the acquired land is resorted to, that would constitute taking possession of the land. The said principle has been reiterated in Bangalore Development Authority & Ors. v. R. Hanumaia .....

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which was then transferred to CITB, predecessor-in-interest of the appellant. After the vesting of the land and taking possession thereof, the notification for acquiring the land could not be withdrawn or cancelled in exercise of powers under Section 48 of the Land Acquisition Act. Power under Section 21 of the General Clauses Act cannot be exercised after vesting of the land statutorily in the State Government." {See also State of Kerala & Ors. v. V.P. Kurien & Ors. [(2005) 11 SCC .....

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mined keeping in view the fact situation obtaining in each case. If a disputed question can be determined on the basis of the documents and/or affidavit, the High Court may not ordinarily refuse to do so. In a given case, it may also examine witnesses. In Smt. Gunwant Kaur & Ors. v. Municipal Committee, Bhatinda & Ors. [(1969) 3 SCC 769], it was held : "14. The High Court observed that they will not determine disputed question of fact in a writ petition. But what facts were in dispu .....

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iction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition. Rejection of a petition in limine will normally be justified, where the High Court is of the view .....

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idence and the only matter in respect of which conflict of facts may possibly arise related to the due publication of the notification under Section 4 by the Collector. 16. In the present case, in our judgment, the High Court was not justified in dismissing the petition on the ground that it will not determine disputed question of fact. The High Court has jurisdiction to determine questions of fact, even if they are in dispute and the present, in our judgment, is a case in which in the interests .....

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opinion on the point as whether the various provisions of the Code of Civil Procedure apply to petitions under Article 226 of the Constitution. Section 141 of the Code, to which reference has been made, makes it clear that the provisions of the Code in regard to suits shall be followed in all proceedings in any court of civil jurisdiction as far as it can be made applicable. The words "as far as it can be made applicable" make it clear that, in applying the various provisions of the Co .....

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warranto and certiorari. It is plain that if the procedure of a suit had also to be adhered to in the case of writ petitions, the entire purpose of having a quick and inexpensive remedy would be defeated. A writ petition under Article 226, it needs to be emphasised, is essentially different from a suit and it would be incorrect to assimilate and incorporate the procedure of a suit into the proceedings of a petition under Article 226. The High Court is not deprived of its jurisdiction to entertai .....

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account the High Court is of the view that the dispute should not appropriately be tried in a writ petition, the High Court may decline to try a petition (see Gunwant Kaur v. Bhatinda Municipality). If, however, on consideration of the nature of the controversy, the High Court decides, as in the present case, that it should go into a disputed question of fact and the discretion exercised by the High Court appears to be sound and in conformity with judicial principles, this Court would not interf .....

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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." 34. Recently the question came up for consideration before a Division Bench of this Court in T.N. Housing Board v. Keeravani Ammal, [ (2007) 9 SCC 255], wherein it was held :- &quo .....

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nd has been duly acquired under the Land Acquisition Act, the land becomes the property of the State. The State can dispose of the property thereafter or convey it to anyone, if the land is not needed for the purpose for which it was acquired, only for the market value that may be fetched for the property as on the date of conveyance. The doctrine of public trust would disable the State from giving back the property for anything less than the market value. In State of Kerala v. M. Bhaskaran Pill .....

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amount fetched in the public auction can be better utilised for the public purpose envisaged in the Directive Principles of the Constitution. In the present case, what we find is that the executive order is not in consonance with the provision of the Act and is, therefore, invalid. Under these circumstances, the Division Bench is well justified in declaring the executive order as invalid. Whatever assignment is made, should be for a public purpose. Otherwise, the land of the Government should b .....

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would be on the State to prove the contra. The burden of proof could be discharged only by adducing clear and cogent evidence. Not only the aforementioned documents but even the judicial records clearly show that the possession had in fact been taken. 36. Mr. Raju Ramachandran, however, made an alternative submission before us that this Court, in exercise of its jurisdiction under Article 142 of Constitution of India, may issue necessary directions so as to put a quietus to the entire matter. T .....

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any other person are found to be in possession of the lands which were the subject matter of acquisition in terms of the notification under Section 4 of the Act, appropriate steps for eviction therefor can be initiated. It goes without saying that the authorities of the State of Uttar Pradesh shall render all cooperation to the appellant in this behalf. 38. It is furthermore neither in doubt nor in dispute that the initiation of the acquisition proceedings at the instance of the appellant was f .....

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Yet again in Kasturi & Ors. v. State of Haryana [(2003) 1 SCC 335], this Court has held : "12. If the land was not used for the purpose for which it was acquired, it was open to the State Government to take action but that did not confer any right on the respondents to ask for restitution of the land. As already noticed, the State Government in this regard has already initiated proceedings for resumption of the land. In our view, there arises no question of any unjust enrichment to the .....

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acquisition cannot be invalidated merely because the lands which at one time were proposed to be utilised for a particular public purpose, were later either in whole or in part, utilised for some other purpose, though a public purpose. He, therefore, submitted that some change of user of the land, as long as it has a public purpose, would not invalidate the acquisition proceeding which is otherwise valid and legal." It was held : "23. Referring to the facts of the instant case, it cann .....

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