Bopanna, J.:—
The brief facts leading to this reference are as follows:
The Bangalore Development Authority (hereinafter referred to as the ‘BDA’ for short) had acquired certain lands by issue of Notifications under Sections 17(1) and 19 of the Bangalore Development Authority Act, 1976 (hereinafter referred as the ‘BDA Act’ for short) for formation of a housing layout known as Nagarbhavi II Stage Layout. The lands measuring 3 acres 34 guntas (including 2 guntas of kharab land) in Sy. No. 55/2 of Malagalu Village, Yeshwanthpura Hobli, Bangalore North Taluk owned by the petitioner was also included in the said process of acquisition. The challenge made to the said acquisition by the petitioner, through his petition in W.P No. 2272/1987 was dismissed. Notwithstanding the same, the petitioner moved the State Government and on acceding to the request of the petitioner, the said lands were withdrawn from acquisition by issue of Notification dated 05.10.2007 under Section 48(1) of the Land Acquisition Act (hereinafter referred to as the ‘LA Act’ for short). However, the State Government, by its subsequent Notification dated 23.03.2009 withdrew its earlier Notification dated 05.10.2007 on the ground that the possession of the land in question had been taken on 18.02.2002 and as such denotification was contrary to law.
2. The aforestated Notification dated 23.03.2009 has been assailed by the petitioner through the instant writ petition. One among the several contentions urged by the petitioner to assail the Notification dated 23.03.2009 and thereby sustain the earlier Notification dated 05.10.2007 is that the possession of the lands in question had not been taken in accordance with law. The respondent-BDA however relied on the mahazar and possession certificate dated 12.07.2002 to contend that possession had been taken. The contention on behalf of the petitioner was that the alleged mahazar drawn and possession taken by the Revenue Inspector cannot be recognised in law since Section 16(1) of the LA Act provides that the Deputy Commissioner should take possession. In support of the said contention, reliance was placed on the decision of a Division Bench of this Court in the case of BDA v. Muniyamma . WA No. 936/2007 disposed on 11.12.2008 wherein it was held that the land being revenue land, the Deputy Commissioner should take possession and he cannot delegate his power to any other Officer. The Learned Counsel for the BDA however pointed out before the Learned Single Judge that another Division Bench of this Court by its subsequent decision in the case of MMARIDEV v. State of Karnataka . WA No. 1979/2007 disposed on 25.05.2009 has arrived at a contrary decision. The Learned Single Judge on noticing the said conflict of opinion and also by referring to another decision of the Division Bench of this Court, as also the decisions of the Hon'ble Supreme Court, had directed the Registry to place the matter before Hon'ble the Chief Justice so as to place before a larger Bench in order to resolve the conflict. Accordingly, the matter is before us. The narration of the sequence would indicate that the questions that would arise for consideration and opinion are as hereunder:
i) Whether the possession of the land to be taken as contemplated under Section 16(1) of the L.A Act should be taken by the Deputy Commissioner himself or could it be taken by the Assistant Commissioner in charge of a sub-Division of a district or any Officer specially appointed by the appropriate Government to perform the functions of a Deputy Commissioner?
ii) Whether the possession taken by any Officer who is subordinate and not described in Section 16(1) of the LA Act, but is authorised by the aforestated designated Officers would satisfy the requirement of Section 16(1) of L.A Act so as to recognise the possession taken to be valid in law?
3. In the backdrop of the above, we have heard Sri. K. Suman, Learned Counsel for the petitioner, Sri. Udaya Holla, Learned Senior Counsel along with Sri. G. Shankar Goud, Learned Counsel and Sri. K.M Nataraj, Learned Additional Advocate General for the respective respondents.
4. In the light of the reference made on the above questions and the contentions putforth, it would be necessary for us at the outset to notice the relevant provisions of the L.A Act.
“Section 3(c): The expression “Collector” means the Collector of a district, and includes a Deputy Commissioner and any Officer specially appointed by the [appropriate Government] to perform the functions of a Collector under this Act.”
“Sec. 16: Power to take possession: When the Collector has made an award under Section 11, he may take possession of the land, which shall thereupon [vest absolutely in the (Government)] free from all encumbrances.”
By the Land Acquisition (Karnataka Extension and Amendment) Act, 1961, hereinafter referred to as Karnataka Amendment (Vide Mysore Act. 17 of 1961), relevant Amendments were made which are as hereunder:
“4. Substitution of expression “Deputy Commissioner”, for the expression Collector in the Central Act I of 1894.- In the principal Act, for the word “Collector” whereever it occurs, the words “Deputy Corrimissioner” shall be substituted”
“6. Amendment of section 3 of Central Act I of 1894.- In Section 3 of the principal Act,-
(1) xxxxxxxxxxxxxxxxxxxxxxx
(2) in clause (c) for the words “Deputy Commissioner” the words “an Assistant Commissioner in-charge of a sub-Division of a District” shall be substituted.”
“18. Amendment of Section 16 of Central Act I of 1894.- Section 16 of the principa Act shall be re-numbered as sub-Section (1) of that section, and after the sub-Section as so re-numbered, the following sub-Section shall be added namely:—
(2) The fact of such taking possession may be notified by the Deputy Commissioner in the Official Gazette, and such Notification shall be evidence of such fact.”
The provisions contained in BDA Act relied upon by the Learned Counsel for the petitioner reads as hereunder:
“Section 36. Provisions applicable to the acquisition of land otherwise than by agreement:
(1) xxxxxxxxxxx
(2) xxxxxxxxxxx
(3) After the land vests in the Government under Section 16 of the Land Acquisition Act, 1894, the Deputy Commissioner shall, upon payment of the cost of the acquisition, and upon the Authority agreeing to pay any further costs which may be incurred on account of the acquisition, transfer the land to the Authority, and the land shall thereupon vest in the Authority.”
5. Section 16(1) of L.A Act provides that when the Deputy Commissioner has made an award under Section 11, he may take possession of the land which shall thereupon vest absolutely with the Government, free from all encumbrance. To the said extent, there is no ambiguity. However, before understanding the comprehensive purport of Section 16(1) of the LA Act, the foremost issue to be considered by us is as to whether Section 3(c) could be read along with Section 16(1) so as to include the Assistant Commissioner or the Officer specially appointed within its scope, along with the expression “Deputy Commissioner” since the Division Bench in the case of BDA v. Muniyamma (Supra) had rejected the contention of BDA to that effect by stating that if such contention is accepted, Section 16(1) and (2) would become redundant. Having given our thoughtful consideration, we are unable to agree with the said view expressed by the Division Bench for more than one reason. Firstly, because, Section 3(c) is the provision to define the expression ‘Collector’ wherever it appears as including Deputy Commissioner and any officer specially appointed by the appropriate Government to perform the functions of a Collector under the Act. Secondly, the Karnataka Amendment has substituted the words ‘Deputy Commissioner’ in Section 3(c) with the words ‘an Assistant Commissioner in charge of a sub-Division of a District’. Hence, the expression “Collector” appearing in the Central Act, in so far as the Karnataka Act would include the Deputy Commissioner, Assistant Commissioner in charge of a sub-Division of a District and any officer specially appointed by the appropriate Government. Thirdly, the Deputy Commissioner, Assistant Commissioner and the Officer specially appointed are included in the meaning of the expression “Collector” vide Section 3(c) by stating that it is so, to enable them, “…to perform the functions of a Collector under this Act.” For better understanding, if the Amendment made vide Sections 4 and 6(2) of Karnataka Amendment Act are incorporated and Section 3(c) is pemsed thereafter, the same would read as hereunder:
3(c) the expression ‘Collector’ means the Deputy Commissioner of a District, and includes an Assistant Commissioner in-charge of a sub-Division of a District and any officer specially appointed by the appropriate Government to perform the functions of a Deputy Commissioner under this Act.
6. If the fact that the Assistant Commissioner and Officer specially appointed are also included in the definition of the expression “Deputy Commissioner” so as to enable them to perform the functions of the Deputy Commissioner under the Act, is kept in view and Section 16 is pemsed, there could hardly be any doubt that taking possession of the land is also one of the functions of the Collector as provided under the Act. If that be so, the expression “Collector” appearing in Section 16 of the Central Act and the expression “Deputy Commissioner” appearing in Section 16(1) of the Karnataka amendment would include the Assistant Commissioner in charge of a sub-division of a district and any Officer specially appointed by the appropriate Government also to be empowered for the purpose of taking possession. We are also fortified in taking such view by a decision of the Hon'ble Supreme Court in the case of State of Mysore v. Hutchappa . 1977 2 SCC 517. wherein it is held as hereunder:
“2. Certain land acquisition was started by the State for the purpose of constructing a Harijan colony — a very laudable object indeed. In that behalf, the Assistant Commissioner in charge of the Bangalore Circle (a district) took action. The High Court quashed the acquisition proceedings on the ground that according to its construction of the definition of Section 3(c) of the Act, the Assistant Commissioner could perform the functions of a Deputy Commissioner only if he were specially vested with such power by a Notification. The result was that the land acquisition proceedings were quashed.
3. We see no force in the argument which has appealed to the High Court. It is easy to see from a bare reading of Section 3(c) that the expression ‘Deputy Commissioner’ has been expressly made to include an ‘Assistant Commissioner’ in charge of a sub-Division; only other officers are required to be specially appointed by the Government to perform the functions of a Deputy Commissioner. The Assistant Commissioner does not require such separate empowerment or authorisation. The High Court thus erred in its construction of Section 3(c) of the Act. We set aside the order of the High Court and allow the appeals.”
(emphasis supplied)
The Hon'ble Supreme Court in the above noted decision expressed the said opinion, in a case where the Assistant Commissioner had performed the function which was at a much earlier stage in the process of acquisition, while in the instant case, we are examining a situation where the function of taking possession is being performed as almost the concluding part of the acquisition process. If that be the position, there could be no repugnancy as stated by the Division Bench in W.A No. 936/2007. In such circumstance, the reliance placed on Section 36(3) of the BDA Act by the Learned Counsel for the petitioner to contend that it shall mean Deputy Commissioner alone cannot be accepted. In any case, it is not disputed that insofar as the acquisition process, until the land vests with the Government, the procedure prescribed under LA Act would apply. Therefore, even though the expression “Deputy Commissioner” is employed in sub-Section (3) of Section 36, the same cannot be imported to understand the meaning of the expression contained in LA Act when it has been defined in LA Act itself. That apart, the content in Section 36(3) of BDA Act is in respect of the second part, namely the transfer from the Government to the Authority, by which time, the land would have already vested with the Government.
7. Having concluded thus on the above stated aspects of the matter and before considering the issue as to whether the Officers stated above who are empowered under Section 16(1) of the LA Act should be present in person to take possession, the aspect relating to the nature and mode of taking possession requires consideration. The Learned Counsel for the petitioner relied on the decision of the Hon'ble Supreme Court in the case of Balwant Narayan Bhagde v. M.D Bhagwat . AIR 1975 SC 767. to contend that possession should be physical, and not symbolic and as such the Deputy Commissioner should be physically present. However, what is to be noticed is that the Hon'ble Supreme Court in its subsequent decision in the case of Tamil Nadu Housing Board v. A. Viswam (Dead) By LRs . AIR 1996 SC 3377. after referring to Balwant Narayan Bhagde'S case has held as hereunder:
“9. It is settled law by series of judgments of this Court that one of the accepted modes of taking possession of the acquired land is recording of a memorandum or Panchanama by the LAO in the presence of witnesses signed by him/them and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. It is common knowledge that in some cases, the owner/interested person may not co-operate in taking possession of the land.”
Further the Hon'ble Supreme Court in the case of Balmokand Khatri Educational and Industrial Trust, Amritsar v. State of Punjab . AIR 1996 SC 1239. has observed as hereunder:
“4. It is seen that the entire gamut of the acquisition proceedings stood completed by April 17, 1976 by which date possession of the land had been taken. No doubt, Sri Parekh has contended that the appellant still retain 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.”
(emphasis supplied)
It would also be useful to refer to yet another decision of the Hon'ble Supreme Court in the case of P.K Kalburqi v. State of Karnataka . 2005 12 SCC 489. wherein it is held as hereunder:
“6. Moreover, the Hon'ble Minister who passed the order of De-Notification of the lands in question sought to make a distinction between symbolic possession and actual possession and proceed to pass the order on the basis of his understanding of the law that symbolic possession did not amount to actual possession, and that the power to withdraw from the acquisition could be exercised at any time before “actual possession” was taken. This view appears to be contrary to the majority decision of this Court in Balwant Narayan Bhagde v. M.D Bhagwat, wherein this Court observed that how such possession would 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. In the instant case the lands of which possession was sought to be taken were unoccupied, in the sense that there was no crop or structure standing thereon. In such a case only symbolic possession could be taken, and as was pointed out by this Court in the aforesaid decision, such possession would amount to vesting the land in the Government. Moreover, four acres and odd belonging to the appellant was a part of the larger area of 118 acres notified for acquisition. We are, therefore, satisfied that the High Court has not committed any error in holding that possession of the land was taken on 6-11-1985. Even the order of the Minister on which considerable reliance has been placed by the appellant indicated that possession of the lands was taken, though symbolic.”
(emphasis supplied)
That apart a Full Bench of this Court in the case of Iti Employees' Housing Co-Operative Society Limited, Bangalore v. Venkatappa . W.A No. 1485/2003 and connected case disposed of on 23.12.2005 had the occasion to answer the reference relating to the manner of possession to be taken. The reference was answered as follows:
“19. For vesting of land absolutely in the State Government free from all encumbrances under Section 16 of the Land Acquisition Act, the Deputy Commissioner must take actual possession of the land since all interests in the land are sought to be acquired by it. Such possession would have to be taken as the nature of the land admits of. There can be no hard and fast rules laying down that what act would be sufficient to constitute taking possession of the land. What the Act contemplates as a necessary condition of vesting of land in the State Government under Section 16 of the Act is only the taking of actual possession of the land and such possession would have to be taken as the nature of the land admits of. The manner of actual taking of possession of land is not prescribed under the Act. One of the accepted modes of taking possession of the acquired land is recording of a Memorandum of a panchanama by the Deputy Commissioner (or the LAO) in the presence of witnesses signed by them and that would constitute taking possession of the land as it is impossible to take physical possession of the acquired land. The presence of owner or the occupant of the land is not necessary to effectuate the taking of possession as it is common knowledge that invariably in most of the cases, the owner or the occupier of the land may not co-operate in taking possession of the land. It is also strictly not necessary as a matter of fact or legal requirement that notice should be given to the owner or the occupier of the land that possession would be taken at a particular time. The fact of such taking possession may be notified by the Deputy Commissioner (or the LAO) in the Official Gazette as envisaged under Section 16(2) of the Land Acquisition Act and such notification shall be evidence of fact of taking such possession for the vesting of the land in the State Government. Under Section 16 of the Land Acquisition Act, the Deputy Commissioner (or the LAO) has been authorised to take possession of the land regarding which an award has been made by him under Section 11 of the Act and thereupon the land shall vest in the Government free from all encumbrances.”
8. Therefore, from all the above noticed decisions, the conclusion that can be drawn is that the mode of taking possession of the acquired land would depend on the nature of land. But, it can be safely concluded that when the land is agricultural land as in the instant case, the taking of possession can be evidenced by a mahazar or panchanama drawn up in the presence of witnesses which would be conclusive proof for taking possession as required under Section 16(1) of LA Act. Once it is established that the possession has been taken in accordance with law, such date becomes relevant for all purposes and the erstwhile land owner cannot claim to have continued in possession, as such possession cannot be recognised in law.
9. In the above backdrop, the crucial aspect to be determined by us is, as to whether the Deputy Commissioner/Assistant Commissioner in charge of a sub-Division of a District/any Officer specially appointed by the appropriate Government, as the case may be, should be personally present at the location while drawing up the mahazar/panchanama? In the alternative, whether the drawing up of the mahazar/panchanama and the act of taking possession performed by a sub-ordinate Officer duly authorised would be due compliance of the requirement of law?
10. In that regard, apart from contending about the right guaranteed under Article 300A of the Constitution of India, it was also contended by the Learned Counsel for petitioner that the Hon'ble Supreme Court in the case of Babu Verghese v. Bar Council of Kerala . AIR 1999 SC 1281. has held that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. It is no doubt true that a person can be deprived of his property only by Authority of law and in this regard, the same being acquired by initiating proceedings as provided under law cannot be in dispute. Further the decision in the case of Babu Verghese does not apply to the fact situation and cannot be considered as a precedent to the proposition under consideration. In so far as the acquisition of property, the process of taking possession is the last stage after following all the earlier process starting from the stage of Section 4 of the LA Act onwards. Further Section 16 of the Act does not prescribe that the possession should be taken in any particular manner, to say that any other method is contrary to what has been spelt out in the provision.
11. In the above context, it would be useful to refer to one of the earliest decisions of a Division Bench of this Court on the subject, in the case of Hunnikeri Brothers v. Assistant Commissioner, Dharwad Division . AIR 1962 MYS. 169. wherein it was held as hereunder:
“9. If, therefore, it is not possible to hold that there was no award made by the Collector in this case, it was permissible for the Collector under Section 16 of the Land Acquisition Act, to take possession of the property. But, it is urged that the City Survey Officer who called upon the petitioners to deliver possession of the property on April 25, 1961, is not a Collector within the meaning of Section 16 and therefore was incompetent to take possession which the Collector alone can take under Section 16.
10. The short answer to this argument is that Section 16 does not require the Collector personally to go to the land and stand there, and then proclaim that he has taken possession, and that it is enough if he authorises someone whom he wishes to take delivery of possession to go there and take possession. It has been pointed out to us by Mr. Government Pleader that by a letter addressed to the City survey Officer and Thasildar on March 21, 1961, by the Collector in this case, who was the Land Acquisition Officer, the Thasildar was authorised by him to take possession of the land and it is for this reason that the City Survey Officer (Thasildar) called upon, by means ofhis notices which he issued on March 22, 1961, the petitioners to deliver possession of the land on April 25, 1961. The argument that someone other than the Collector has been trying to disturb the possession of the petitioners, without the Authority of law, must therefore fail.”
(emphasis supplied)
12. We see no reason to differ from the view taken by the Division Bench in the case of Hunnikeri Brothers since we are of the opinion that taking over possession is one of the functions in the sequence of the different proceedings in the acquisition process and is consequential and a function which is not in the nature of performing a quasi-judicial function or an action calling for exercise of discretion since by such time all such acts which require deeper application of mind will already be completed and a decision to acquire the land would already be in place. Therefore, the power available to the Deputy Commissioner/Assistant Commissioner in charge of a sub-Division of a District/any Officer specially appointed by the appropriate Government under Section 16(1) of the LA Act cannot be construed to mean that such power should be exercised by his personal presence at the spot or location where the acquired property is situate. It is sufficient if the said power under Section 16(1) of LA Act is exercised by the said persons by initiating the process for taking possession by requiring the sub-ordinate officers including the Revenue Inspector or Surveyor to visit the spot and take possession. If such sub-ordinate Officer completes the process of taking possession as per procedure laid down, it cannot be considered as delegation of power in strict sense so as to attack the same as impermissible. Instead, it is an authorisation or a direction of the superior Officer to enable the completion of the process by utilising the services of the sub-ordinate Officers who also have sufficient knowledge of the land revenue process. However, on taking possession, the Officer empowered under Section 16(1) would have to accept the report of taking possession.
13. Hence, in the process of judicial review, all that is to be examined and ensured is, to ascertain that possession has been taken by initiation of the process by the Officer empowered under Section 16(1) of the LA Act namely Deputy Commissioner/Assistant Commissioner in charge of a sub-Division of a District/any Officer specially appointed by the appropriate Government, as determined above and that the sub-ordinate Officer though not mentioned in Section 16(1) has taken possession based on such authorisation and in the manner prescribed by law and the empowered officer has accepted the report of taking possession by acting upon the same. Such authorisation and reporting back need not be in any particular format or manner and it cannot be put in a strait jacket, but, the records should disclose the same to the satisfaction of the Court when the dispute relating to possession arises in a particular case and if that calls for adjudication. Needless to mention that in a particular case, if the fact of taking possession is notified in tenns of Section 16(2) of the LA Act, the same would be evidence of the fact.
14. In view of the above discussion, the answer to the questions raised on reference are as hereunder;
i) The power to be exercised for taking possession of the acquired property as contemplated under Section 16(1) of LA Act need not be taken by the Deputy Commissioner himself. Since the expression “Deputy Commissioner” as appearing in Section 16(1) includes the Assistant Commissioner in charge of a sub-Division of a District or any Officer specially appointed by the appropriate Government as provided in Section 3(c) of the Act to perform the functions of a Deputy Commissioner under the Act, they can also exercise the power under Section 16(1) of the Act.
ii) The possession taken by the sub-Ordinate Officers by complying with the procedures would be valid in law, if such possession is taken based on the Authorisation issued by the Officers designated under Section 16(1) of the Act. Whether such sub-ordinate Officer has been authorised to perform that function by the designated Officer or not would arise for factual determination, if the same is specifically disputed in an individual case. In such cases, it would be incumbent on the acquiring authority to establish before the Court that the possession was obtained by such sub-ordinate Officer with the concurrence of the Officer designated to perform the said function of taking possession under Section 16(1) of the LA Act. Therefore, the Deputy Commissioner/Assistant Commissioner in charge of a sub-Division in a District or the Officer specially appointed by the appropriate Government, as the case may be, need not be personally present at the spot or location of the acquired land. It would be sufficient, if the said Officers Authorise any other Officer and if such Officer who has been Authorised takes possession and reports back to the Officers empowered under Section 16(1) of the Act and such Officer accepts the report of taking possession by acting upon the same. Such authorisation and reporting back need not be in any particular format or manner to put it in a straight jacket, but the records should disclose the same to the satisfaction of the Court.
Since we have answered the questions referred for our opinion in the manner stated above, the registry shall now place the writ petition before the Learned Single Judge so as to enable the disposal of the writ petition on its merits keeping in view the opinion expressed in response to the points raised in reference. Ordered accordingly.