- Bookmark
- Share
- CaseIQ
Anil Kumar v. State Of U.P And Others
Factual and Procedural Background
The Secretary, Krishi Utpadan Mandi Samiti, Hapur ("applicant") filed an application seeking recall of this Court's judgment and order dated 27.11.2007. The applicant contended, inter alia, that it was a necessary party not impleaded in the writ petition and that the Court ought not to have directed the State Government to consider the original petitioner's application under section 48 of the Land Acquisition Act, 1894 because possession of the land had already been taken. The applicant asserted that "possession" had been handed over to it by the Collector's nominee at least on paper (a certificate executed between Amin and the Mandi Samiti), and relied on authorities to contend that symbolic or paper possession suffices.
The judgment under recall had earlier directed the State Government to consider the petitioner's application under section 48 of the Act, 1894 in the light of several Supreme Court decisions. The recall application was heard by the Court, parties made submissions, and the Court examined the record and relevant authority before deciding the recall application.
Legal Issues Presented
- Whether the recall application against the judgment and order dated 27.11.2007 is maintainable and sustainable.
- Whether the applicant (Krishi Utpadan Mandi Samiti) was a necessary party and therefore entitled to recall of the earlier order for non-impleadment.
- For the purposes of the Land Acquisition Act, 1894 (sections 16, 17, 48 etc.), whether "possession" means actual physical possession on the spot or whether symbolic/paper possession (e.g., a certificate) is sufficient to treat land as having been taken into possession by the State.
- Whether an application under section 48 (exemption/withdrawal from acquisition) is maintainable once possession has been taken and the land has vested in the State.
Arguments of the Parties
Applicant's Arguments (Secretary, Krishi Utpadan Mandi Samiti)
- The applicant was a necessary party but was not impleaded in the writ petition, justifying recall.
- Possession of the land had already been handed over to the applicant by the Collector's nominee "at least on paper"; hence the State could not have been directed to consider the petitioner's s.48 application.
- It is not necessary in law that the Collector take actual physical possession; symbolic or paper possession is sufficient. Heavy reliance was placed on Balmokand Khatri Educational & Industrial Trust v. State of Punjab (1996 4 SCC 212) to support the contention about accepted modes of taking possession (panchnama, etc.).
Opposing Party's Arguments (Counsel for original petitioner)
- The Court's earlier order was conditional and not a final decision on merits; it directed that if petitioners had not actually been dispossessed, their s.48 application should be considered by the State Government in accordance with law.
- Documents filed with the recall application do not establish that possession has been taken; specifically, the certificate relied upon does not constitute the panchnama or an on-the-spot act of possession.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Union of India v. Bal Rant Singh, 1992 Supp 2 SCC 136 | Cited among Supreme Court authorities concerning consideration of s.48 applications and exemption from acquisition. | Referred to as part of prior authorities indicating circumstances in which s.48 applications may be entertained; used to contextualize the Court's direction to the State Government to consider the petitioner's s.48 application. |
| State of Tamilnadu v. Mahalakshmi Ammal, 1996 7 SCC 269 | Discusses the nature of possession and panchnama as mode of taking possession. | Quoted for the proposition that possession can be recorded by a memorandum/panchnama and that subsequent retention by erstwhile owner is unlawful; considered when assessing whether possession had been taken. |
| Sube Singh v. State of Haryana, 2001 45 ALR 1 SC | Cited with other cases as authority that an application for exemption under s.48 can be entertained if exemption does not disturb planned development. | Used to support earlier order directing consideration of petitioner's s.48 application in light of Supreme Court precedent. |
| Amar Singh v. State of U.P (Writ Petition No. 38972 of 2007) | Clarified that a s.48 application may be entertained by the State Government provided possession has not already been taken. | Referred to as an earlier clarification relied upon in the recall application context; the Court noted this clarification in its assessment. |
| Balmokand Khatri Educational & Industrial Trust v. State of Punjab, 1996 4 SCC 212 | Explains that the normal mode of taking possession is by drafting the panchnama in presence of panchas and that subsequent retention by erstwhile owner would be unlawful; recognizes practical difficulties in taking physical possession. | Applicant relied heavily on this decision to argue symbolic/panchnama-based possession sufficed; Court considered the decision but emphasized the need for an on-the-spot act (panchnama) to establish possession. |
| Satendra Prasad Jain v. State of U.P. (and N.N. Chandrasdhuya v. State of W.B.) | Principle that upon possession being taken under sections 16 or 17, land vests in the State free from all encumbrances. | Cited by the Court to restate the settled law that vesting follows lawful taking of possession and impacts the maintainability of s.48 relief after vesting. |
| State of Madhya Pradesh v. V.P. Sharma | Held that section 48(1) is not the only means for withdrawal from acquisition; Government can rescind notifications under section 21 of the General Clauses Act; withdrawal permissible only prior to vesting. | Used to explain that s.48 is not the sole process for withdrawal and that withdrawal after vesting is impermissible; informed the Court's conclusion regarding maintainability when possession has been taken. |
| Special Land Acquisition Officer, Bombay v. Godrej & Boyce, 1988 1 SCC 50 | Government competent to withdraw acquisition proceedings without affording hearing or recording reasons; land owners may only claim compensation under s.48(2) if withdrawal occurs. | Reiterated Government's competence to withdraw and limitations (i.e., withdrawal must be before vesting), supporting the Court's analysis on timing and effect of withdrawal. |
| Lt. Governor of H.P v. Sri Avinash Sharma; Pratap v. State of Rajasthan; Mandir Shree Sitaramji alias Shree Sitaram Bhandar v. Land Acquisition Collector; Bangalore Development Authority v. R. Hanumaiah | Cited for the proposition that if possession has been taken, an application for release of land from acquisition is not maintainable. | Grouped with V.P. Sharma as authorities establishing that release applications are not maintainable post-possession; informed the Court's conclusion on maintainability. |
| Laxmi Chand v. Gram Panchayat Kararia | Held that a notification under section 48 must be published in the Official Gazette for exemption to be effective and executable. | Referred to for the formal requirement that s.48 notifications be published in the Gazette; noted as part of the law on exemption procedure. |
| Avadh Behari Yadav v. State of Bihar, 1995 6 SCC 31; U.P. Jal Nigam v. Kalra Properties (P) Ltd., 1996 3 SCC 124; Allahabad Development Authority v. Nasiruzzaman JT 1996 8 SC 429; Executive Engineer, Jal Nigam Central Stores Division, U.P v. Suresha Nand Juyal, 1997 9 SCC 224; Mohan Singh v. International Airport Authority of India, 1997 9 SCC 132; M. Ramalinga Thevar v. State of Tamil Nadu, 2000 39 ALR 630 SC; Government of Andhra Pradesh v. Syed Akbar, 2004 AIR SCW 7125 | Cited for the repeated proposition that once land vests in the State free from encumbrances it cannot be divested and proceedings under the Act do not lapse even if award is not made within the statutory period. | Collected by the Court to reinforce the established principle regarding vesting of land and the continuance of acquisition proceedings after vesting. |
| Jetmull Bhojraj v. State of Bihar, AIR 1967 Pat 287 | Held that taking of possession under sections 16, 17(1), 34 and 48(1) must be of the same nature and implies actual and physical possession; possession must be of the same quality as full ownership. | Used to frame the question of whether possession required by the Act is actual/physical; supported the Court's emphasis on on-the-spot acts of possession. |
| Balwant Narayan Bhagde v. M.D. Bhagwat, 1976 1 SCC 700 (Three-Judge Bench) | Explored meaning and mode of taking possession under sections 16/17(1); included opinions that "symbolical" possession can amount to actual delivery of rights and other opinions that possession must be "on the spot" by visible acts (declaration, hanging notice, etc.). | The Court discussed the decision at length, noting the different judicial views within the Bench; used it to conclude that some positive on-the-spot action by the Collector or nominee is necessary and panchnama is a significant mode of proof. |
Court's Reasoning and Analysis
The Court considered the rival submissions and the record. It proceeded by identifying settled legal principles and applying them to the facts and documents placed before it.
- Legal principle on vesting and effect of possession: The Court reiterated that upon lawful taking of possession under sections 16 or 17 of the Act, land vests in the State free from all encumbrances (citing Satendra Prasad Jain and other Supreme Court decisions). Once vested, land cannot be divested and acquisition proceedings do not lapse merely for non-making of an award within statutory time.
- Nature of withdrawal and timing: The Court relied on V.P. Sharma and Godrej & Boyce to explain that the Government can withdraw from acquisition proceedings by rescinding notifications (including under section 21 of the General Clauses Act) and that withdrawal is permissible only prior to vesting. Government need not afford a hearing or record reasons when withdrawing, though compensation rights under s.48(2) may arise.
- Meaning of "possession": The Court examined authorities (Jetmull Bhojraj; Balwant Narayan Bhagde) to clarify whether possession must be actual/physical or if symbolic/paper possession suffices. It noted the authoritative discussion that taking possession contemplated some positive action on the spot (e.g., actual occupation, panchnama, proclamation on the spot, hanging a declaration) and that a panchnama is a recognized and accepted mode of taking possession.
- Application to the record: The applicant had produced a certificate executed between Amin and the Mandi Samiti. The Court found that such a certificate could not be equated to a panchnama or an on-the-spot act of possession. Therefore, that document did not suffice to establish that possession had been lawfully taken from the person interested for purposes of vesting under the Act.
- Conclusion on recall: Given that the record did not show an on-the-spot act of possession (such as a panchnama) and that any relevant possession-related documents should be available to the State Government for its decision on the s.48 application, there was no ground to recall the earlier order. The Court noted the presumption that the State Authority will decide the s.48 application after considering the actual facts.
Holding and Implications
Holding: Application Rejected.
Implications:
- The recall application filed by the Secretary, Krishi Utpadan Mandi Samiti, Hapur was found to lack merit and has been dismissed.
- The Court held that a mere certificate executed between Amin and the Mandi Samiti cannot be treated as a panchnama or an on-the-spot act of taking possession; hence it did not establish that possession had been taken such that a s.48 application would become unmaintainable by reason of vesting.
- The Court indicated that, in accordance with established law cited in the opinion, the State Government remains the appropriate authority to consider any application under section 48 and that it is presumed the State Authority will decide the application after reference to actual facts and documents in its possession.
- No broader or novel precedent was formulated by the Court in this opinion; the decision applies the existing principles of law (as cited) to the facts before it and results only in rejection of the recall application.
Order dated in the opinion: "Application Rejected."
Dr. B.S Chauhan and Arun Tandon, JJ.:— An application for recall of the judgment and order dated 27.11.2007 has been filed by the applicant, Secretary, Krishi Utpadan Mandi Samiti, Hapur on various grounds and particularly that the applicant was a necessary party though not impleaded in the said writ petition. The Court could not have been directed the State Government to consider the application of the petitioner under section 48 of Land Acquisition Act, 1894 (hereafter referred to as ‘Act, 1894’) in view of the fact that possession of the land has already been taken. Symbolic possession is sufficient and there is no requirement of actual and physical possession of the land be transferred. The application has been heard today. This Court vide judgment and order dated 27.11.2007 has asked the State Government to consider the application of the petitioner filed under section 48 of the Act, 1894 in the light of the judgments of Supreme Court particularly in Union of India v. Bal Rant Singh 1992 Supp 2 SCC 136., State of Tamilnadu v. Mahalakshmi Ammal 1996 7 SCC 269. and Sube Singh v. State of Haryana 2001 45 ALR 1 SC., wherein it has been held that an application for exemption from acquisition can be entertained and land may be exempted from acquisition provided the State Government is satisfied that exemption shall not disturb the planed development and the land if exempted would be adjusted in contormity with the planed development for which the scheme has been prepared.
2. The order under recall referred to the earlier judgment in Writ Petition No. 38972 of 2007, Amar Singh v. State of U.P, wherein it had been clarified that such an application shall be entertained by the State Government provided the possession has not already been taken. This application has been filed by the applicant on the ground that the possession has been handed over to the applicant by the nominee of the Collector at least on paper and it is not a requirement of law that actual physical possession should be taken for excluding the proceedings under section 48 of the Act, 1894.
3. A very heavy reliance has been placed by Sri B.D Mandhyan, learned Senior Counsel for the applicant on the judgment in Balmokand Khatri Educational & Industrial Trust, Amritsar v. State of Punjab 1996 4 SCC 212., wherein the Apex Court held as under:
“It is seen that the entire 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.”
4. In State of T.N v. Mahalakshmi Ammal, without taking note of the earlier judgment in Balwant Narayan Bhagde (supra) held as under:
“Possession of the acquired land would be taken only by way of a memorandum, Panchnama, which is a legally accepted norm. It would not be possible to take any physical possession. Therefore, subsequent continuation, if any, had by the erstwhile owner is only illegal or unlawful possession which does not bind the Government nor vested under section 16 divested in the illegal occupant.”
5. In view of the above, it has been canvassed by B.D Mandhyan, learned Senior Counsel that it is not necessary that the persons interested i.e tenure holders or occupant thereof should be dispossessed actually and the law does not require actual physical possession by the Collector.
6. The application has vehemently been opposed by Sri Shashi Nandan, learned Senior Counsel duly assisted by Sri Rahul Kumar Tripathi, Advocate for petitioner contending that this Court has not decided the case on merit rather passed a conditional order that in case the petitioners had not actually been dispossessed, their application under section 48 of the Act, 1894 be considered in accordance with law. He submitted that documents filed along with recall application do not establish that possession has been taken.
7. We have considered the rival submissions made by the parties and have gone through the records of the case.
8. There cannot be a dispute in law that upon possession being taken under section 16 or 17 of the Act, the land vests in the State free from all encumbrances. In this connection reference may be made to the following decisions of the Supreme Court in Satendra Prasad Jain v. State of U.P and N.N Chandrasdhuya v. State of W.B.
9. So far as the application of section 48 of the Act is concerned, in State of Madhya Pradesh v. V.P Sharma the Hon'ble Supreme Court has held as under:
“The argument is that section 48 is the only provision in the Act which deals with withdrawal from acquisition and that is the only way in which Government can withdraw from the acquisition and unless action is taken under section 48(1), the Notification under section 4(1) would remain, presumably for ever… We are not impressed by this argument. In the first place, under section 21 of the General Clauses Act (Act No. 10 of 1897), the power to issue a notification includes the power to rescind it. Therefore, it is always open to the Government to rescind a notification under section 4 or 6 and withdrawal under section 48(1) is not the only way in which a notification under section 4 or 6 can be brought to an end… The argument that section 48(1) is the only method in which the Government can withdraw from the acquisition, has, therefore, no force because the Government can always cancel the notifications under sections 4 and 6 by virtue of its power under section 21 of the General Clauses Act…”
10. Similar view has been reiterated in Special Land Acquisition Officer, Bombay v. Godrej &. Boyce 1988 1 SCC 50., wherein the Hon'ble Supreme Court held that the Government is competent to withdraw from the acquisition proceedings and while doing so, the Government is neither required to afford opportunity of hearing to the land owners and nor it is required to record any reasons for such a withdrawal. At the most, land owners may be held entitled to claim compensation under sub-section (2) of section 48 in such an eventuality. The withdrawal of acquisition proceedings is permissible only prior to the vesting of the land in the State free from all encumbrances.
11. In case possession of the land has been taken application for release of land from acquisition is not maintainable as held by the Hon'ble Supreme Court V.P Sharma (supra); Lt. Governor of H.P v. Sri Avinash Sharma, Pratap v. State of Rajasthan, Mandir Shree Sitaramji alias Shree Sitaram Bhandar v. Land Acquisition Collector and Bangalore Development Authority v. R. Hanumaiah.
12. In Laxmi Chand v. Gram Panchayat Kararia, the Apex Court held that notification under section 48 of the Act is to be published in the Official Gazette for exempting the land, otherwise any order passed under the said provision would remain ineffective and inexecutable.
13. In Satendra Prasad Jain (supra) the Hon'ble Supreme Court held that once land vests in the State free from all encumbrances, it cannot be divested and proceedings under the Act would not lapse even if award is not made within the statutory period. The same view has been reiterated in Avadh Behari Yadav v. State of Bihar 1995 6 SCC 31., U.P Jal Nigam v. Kalra Properties (P) Ltd. 1996 3 SCC 124., Allahabad Development Authority v. Nasiruzzaman JT 1996 8 SC 429., Executive Engineer, Jal Nigam Central Stores Division, U.P v. Suresha Nand Juyal 1997 9 SCC 224., Mohan Singh v. International Airport Authority of India 1997 9 SCC 132., M. Ramalinga Thevar v. State of Tamil Nadu 2000 39 ALR 630 SC. and Government of Andhra Pradesh v. Syed Akbar 2004 AIR SCW 7125.
14. The question does arise as what is the meaning of taking possession—whether it is taking of actual physical pos session or symbolic/paper possession would be sufficient to meet the require ment of law. The issue was considered by a Division Bench of Patna High Court in Jetmull Bhojraj v. State of Bihar AIR 1967 Pat 287., wherein it has been held that taking of pos session referred to in sections 16, 17(1), 34 and 48(1) of the Act must be of the same nature. It means actual and physical pos session. Possession for this purpose must be the possession as a full owner, in consequence of which the land vests absolutely in the Government free from all encumbrances. It cannot be of same nature as any previous possession which the Government might have taken either as a lessee or mortgagee or licensee or under some other colour of title, or even as a trespasser. The Court held as under:
“Though the Act is silent as to the mode of taking possession either under section 16 or 17 of the Act, nonetheless either actual occupation by the Collector or his agents or taking the symbolic possession (where actual possession is already with the Collector) or doing something equivalent to effective possession is contemplated.”
15. A three Judges' Bench of the Hon'ble Supreme Court considered the same issue in Balwant Narayan Bhagde v. M.D Bhagwat 1976 1 SCC 700 and came to the same conclusion, wherein one of the Hon'ble Judges, i.e Hon'ble Mr. Justice N.L Untwalia (as His Lordship then was) held as under:
“19. In order to appreciate what is meant by taking possession of the land under section 16 or 17(1) of the Act and what is the mode of taking such possession in regard to the waste or arable land with which we are concerned in this case, it is necessary to refer to certain provisions of the Code of Civil Procedure—hereinafter called the Code and some decisions thereon. Order XXI, Rules 35, 36, 95 and 96 of the Code prescribe two modes of delivery of possession based upon the nature of the property concerned. The Code does not prescribe that in respect of a particular property there can be two modes of giving possession either to a decree-holder or to an auction-purchaser one “symbolical” and the other “actual”. These Rules prescribe that if the property is in the occupation of the judgment-debtor or some-one on his behalf the possession shall be given if necessary by removing the judgment-debtor and placing the decree-holder or the auction-purchaser in occupation of the same. On the other hand if the property is of such a nature that the judgment-debtor cannot be in actual occupation of it, as for instance, property in the possession of a tenant, the only mode of giving possession is by proclaiming on the spot that the possession has been given to the decree-holder or the auction-purchaser. In some decisions the former mode of possession has been called “actual” and the latter “symbolical”. Really speaking even the delivery of so-called “symbolical” possession is delivery of “actual” possession of the right, title and interest of the judgment-debtor. It completely dispossesses him. It does not affect the physical occupation of the property by a person who is not bound by the decree or whose interest is not affected by sale of the judgment-debtor's interest in execution of a decree. If the property is land over which does not stand any 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, or in case of resistance, by removing the person resisting unauthorisedly. A different mode of delivery is prescribed in the Code in the rules aforesaid in regard to a building, with which we are not concerned in this case. Sometimes the expression symbolical or formal delivery of possession has been used in decisions to connote the actual delivery of possession effective against the judgment-debtor leading to his dispossession in the eye of law even though the duration of the dispossession may be momentary or temporary.”
(Emphasis added).
16. The other two Hon'ble Judges, namely, Hon'ble Mr. Justice P.N Bhagwati and A.C Gupta (as their Lordships then were) on the same issue, observed as under:
“On the taking of possession of the land under sections 16 or 17(1) it vests absolutely in the Government free from all encumbrances. It is therefore, clear that taking of possession within the meaning of sections 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.
(Emphasis added).
17. It is evident that in order to dispossess the persons interested some positive action has to be taken by the Collector or his nominee on the spot after giving notice to the said persons interested. It is also evident from the judgment relied by Sri B.D Mandhyan, learned Senior Counsel according to which panchnama is a condition precedent for establishing that possession has been taken.
18. In the present application what has been filed by the applicant is the certificate executed between Amin and Mandi Samiti. Such a document cannot be termed as a panchnama or an act done on the spot Therefore, such a document cannot be the relevant document for the purpose of establishing that possession has been taken from the person interested. Even if the possession has been taken by the Collector, such document must be available with the State Government which shall be taken into consideration by the State Government while passing orders on the application under section 48 of the Act, 1894. There is a presumption that the State Authority will decide the application after making reference to the actual facts applicable in the case. Therefore, there is no occasion for us to entertain the recall application filed by the applicant.
19. In view of the above, we do not find any force in the application. The application lacks merit and is accordingly rejected.
20. Application Rejected.
Alert