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Jethmull Bhojraj Versus State Of Bihar

1972 (1) TMI 105 - Supreme Court Of India

C.A. 379 Of 1967 - Dated:- 25-1-1972 - Hegde K.S., Reddy P. Jaganmohan And Palekar D.G., JJ. JUDGMENT: A. K. Sen, R. K. Garg, S. C. Agarwal and D. P. Singh, for the appellant) Niren De, Attorney General for India, D. Goburdhun, for the respondents Hegde K.S., In these appeals by certificate, the only question that arises for decision is whether on the facts and in the circumstances of these cases, the Government of Bihar was competent to withdraw from acquisition certain lands sought to be acqui .....

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er proceedings under ss. 9 and 11 were taken. When the acquisition proceedings were pending before the Land Acquisition Officer, the Government withdrew from acquisition some of the lands earlier notified under ss. 4 and 6, Consequently the Land Acquisition Officer excluded the compensation in respect of those lands from the computation made by him earlier. The appellant (common appellant in both the appeals) being aggrieved by that exclusion moved the High Court of Patna under Art. 226 of the C .....

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t in order to include those lands in the adjoining Government forest, it would be necessary to acquire them. Consequently they were notified for acquisition. But after the lands in question were tentatively valued, the Government thought that it was not worthwhile to acquire entire area notified for acquisition. Hence it withdrew from acquisition a substantial portion of lands notified for acquisition, These in brief are the material facts. The allegation of the appellant is that after the lands .....

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ollector caused a public notice to be given under s. 9(1) of the Act. Lastly it was contended that the lands in question had been actually taken possession of by the Collector under s. 17(1) of the Act and hence they vested in the Government. The Government of Bihar has denied all the above allegations. It denied that the Government took possession of the lands in question in 1954. It further denied that those lands had been taken possession of under s. 17(1). The Government denied the allegatio .....

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ourt repelled the contention of the appellant that posse ssion had been taken under s. 17(1). It also did not accept the contention of the appellant that on the issue of notices under s. 9(1), Government bad become the owner of the lands in question. In the result the High Court dismissed the writ petitions. The very contentions taken before the High Court were repeated in this Court. Now coming to the question whether the Government took possession of the lands in question in 1954, it was conce .....

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October 1, 1958 as well as on the requisition sent to the Land Acquisition Officer by the same officer on January 24, 1959 (Annexure M. The concerned Divisional Forest Officer was one Brijmohan Prasad. In the letter in question he stated : "The forest in the above villages are in possession of the Forest Department since sometime past. . In-the requisition again, he mentioned "The land was previously notified under s. 29(3) of the I.F.A. and it was demarcated and possession taken. Lat .....

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notification issued under s. 29 of the Indian Forest Act. This statement of his receives support from his letter written to the Land Acquisition Officer on August 11, 1959 wherein he mentioned : "With reference to your above letters, I have to say that Debipur Forest was notified under the Indian Forest Act on the 8th December, 1953 and that of Telaiya on the 22nd November, 1954. Thus, date of possession is 8th December, 1953 and 22nd November 1954 respectively." It is possible that th .....

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iding this question. It is sufficient if we say that on the material on record, the High Court was justified in not pronouncing on this question in a petition under Art. 226 of the Constitution. It is open to the appellant to seek such other remedy as may be available to him under law if the Government had unlawfully taken possession of those lands. Me. question whether the Government had unlawfully taken possession of those la ads in 1954, as we shall presently see, is wholly irrelevant for the .....

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n the Government free from all encumbrances. Until and unless possession is taken under either of those provisions, the lands notified for acquisition do not vest in the Government. Section 48(1) of the Act provides : "Except in the case provided for in section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken." Section 36 is not relevant for our present purpose. Possession referred to in s. 48 necessarily is the .....

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Ordinarily possession of any land notified for acquisition is taken when the Collector had made an award under s. 11 and not before it. But an exception is provided under s. 17(1). In cases of urgency, if the Government so directs, the Collector may, though no award has been made under s. 11, on the expiration of the 15 days from the publication of the notice mentioned in s. 9(1) take possession of any waste or arable land and the land shall thereupon vest absolutely with the Government free fr .....

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7 (1 ); nor is there any material to show that the lands in question had been taken possession of by the Collector under s. 17(1 ). It is true that in the ordersheet maintained by the Land Acquisition Officer, a note was made on October 17, 1959 : "Shri B. J. Yadav Kgo, to deliver possession at the spot to the representative of the R.O. on 16-11-59 Draft addressed to R.O. is signed." But there is nothing to show that this order was implemented. According to the respondent this order wa .....

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lands in question vested in the Government. The decision in question does not lend any support for this contention. In that case not only the property had been taken possession of by the Government even before the acquisition proceedings had started but appropriate proceedings under s. 9(1) and s. 17(1) were also taken though there was no actual taking of possession under s. 17(1). Under those circumstances this Court observed : "In the present case a notification under S. 17(1) and (4) wa .....

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