REPORTABLE  

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION   

CIVIL APPEAL NO.3604    OF 2011 (Arising out of Special Leave Petition (C) No.30293 of 2010)

Banda Development Authority, Banda ……Appellant

Versus

Moti Lal Agarwal and others ……Respondents

J U D G M E N T

G.S. Singhvi,  J.

1. Leave granted.

2. The question which arises for consideration in this appeal is whether  

the Division Bench of the Allahabad High Court was justified in entertaining  

and allowing the writ petition filed 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  Rs.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 Department visited  

the site on 4.9.2001 and prepared the Field Book, copy of which has been  

produced before this Court along with affidavit dated 19.1.2011 of Shri Biri  

Singh,  Executive  Engineer,  BDA.  The  Special  Land  Acquisition  Officer  

passed award dated 14.6.2002 for the acquired land including plot No.795 of  

which 5 bighas 5 biswas was purchased by respondent No.1 vide registered  

sale deed dated 4.10.1982.   

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5. In the meanwhile,  the BDA prepared lay out for the acquired land  

which was sanctioned by its Board on 8.5.2002.  Thereafter, the land was  

developed in a phased manner and plots were carved out for economically  

weaker  sections  and  LIG,  MIG  and  HIG  categories.   The  BDA  also  

constructed flats for economically weaker sections and those belonging to  

lower  income  group.    The  plots  and  flats  were  allotted  to  the  eligible  

persons who had applied in response to different advertisements issued by  

the BDA between 2.11.2002 and 26.4.2006.  

6. After more than three years of  publication of the declaration issued  

under Section 6(1), respondent No.1 filed suit being O.S. No.52 of 2003 in  

the  Court  of  Civil  Judge  (Senior  Division),  Banda,  and  prayed  that  the  

defendants  be  directed  to  start  the  acquisition  proceedings  afresh  and  

disburse  compensation  after  sub-dividing  and  numbering  plot  No.795  in  

accordance with paragraph 63 of  the Land Record Manual.  The suit  was  

dismissed on 1.9.2007 in view of the bar  contained in the  Uttar  Pradesh  

Zamindari Abolition and Land Reforms Act and the Land Acquisition Act.  

Respondent  No.1  challenged  the  order  of  the  trial  Court  in  First  Appeal  

No.364 of 2007 but withdrew the same by stating that the writ petition filed  

by him was pending.   

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7. In  the  writ  petition  filed  by  him  on  24.3.2008,  respondent  No.1  

challenged notifications dated 8.9.1998 and 7.9.1999 mainly on the ground  

that the acquisition proceedings will be deemed to have lapsed because the  

award was not passed within two years from the date of last publication of  

the declaration issued under Section 6(1).  Respondent No.1 pleaded that  

though plot No.795 had not been sub-divided and demarcated and physical  

possession thereof was not taken, the concerned authorities prepared Kabja  

Hastantaran  Praman  Patra  dated  30.6.2001  and  thereby  took  paper  

possession of his land.  He also claimed that plot No. 795/3 owned by him  

had  not  been  notified,  but  the  concerned  authorities  colluded  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  

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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 in 1410-1412 fasli,  namely no crop was  shown and they were, admittedly, not in possession from July,  2002 towards.   Possession has been taken from petitioner on  30.6.2001.  30.6.2001 corresponds to end of 1408 fasli.   It is  thus clear that petitioner was not in possession after 30.6.2001.  Entry of sowing any crop in Khasra 1409 is patently erroneous  since in 1409 fasli i.e. from 1st July, 2001 petitioner was not in  possession.  This entry is incorrect and no crop has been sown  after possession was taken on 30.6.2001.”  

9. In  a  separate  affidavit,  Shri  Girish  Kumar  Sharma,  Tehsildar  (J),  

Banda, supported the stand taken by the BDA.  He categorically averred that  

possession of the acquired land was handed over to BDA  on 30.6.2001 for  

the purpose of implementation of the residential scheme.  Along with his  

affidavit, Shri Girish Kumar Sharma annexed photostat copy of report dated  

14.7.2001 prepared by Naib Tehsildar, Banda, who had visited the spot and  

inspected the site.   

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10. Although,  respondent  No.1  did  not  question  the  acquisition  

proceedings on the ground of non compliance of  Section 7 of the Act, the  

Division Bench of the High Court suo moto observed that the acquisition  

proceedings  can  be  quashed  on  the  ground  of  non  compliance  of   that  

section.  The Division Bench then referred to the entries made in the revenue  

records and held that the acquisition proceedings will be deemed to have  

lapsed because neither physical  possession of the land was taken nor the  

award was passed within two years as per the mandate of Section 11A.  The  

High Court distinguished the judgment of this Court in  Satendra Prasad  

Jain  v.  State  of  U.P. (1993)  4  SCC  369  by  observing  that  physical  

possession of the acquired land had not  been taken for more than two years  

after publication of the declaration issued under Section 6(1).

11. Shri P.S. Patwalia, learned senior counsel for the appellant argued that  

the High Court was not at all justified in entertaining and allowing the writ  

petition filed after nine years of publication of the declaration issued under  

Section 6(1)  and six  years  of  the  passing of  award by  the  Special  Land  

Acquisition  Officer  and  that  too  by  ignoring  that  during  the  intervening  

period the BDA carried out development, carved out plots and allotted the  

same  to  the  eligible  applicants  including  the  members  of  economically  

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weaker  sections  and  also  constructed  flats  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  

Rs.63,47,855.07 towards the compensation payable to the land owners and  

submitted that the exercise undertaken for taking possession of the acquired  

land by the concerned authorities of the State and delivery thereof to the  

BDA could not have been brushed aside by the High Court by describing it  

as symbolic/paper possession.

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12. Shri  W.H.  Khan,  learned  senior  counsel  appearing  for  respondent  

No.1 supported the order under challenge and argued that the High Court  

rightly annulled the acquisition proceedings because physical possession of  

the land was taken only on 30.7.2002 and the award was passed after more  

than two years of publication of the declaration issued under Section 6(1).  

Learned  senior  counsel  relied  upon Khasra  Land  Records  of  Fasli  years  

1407, 1408 and 1409, which have been filed with I.A. No.3 of 2011 to show  

that  physical  possession  of  the  acquired  land  continued  with  respondent  

No.1 till  July 2002  and argued that the document prepared by the State  

authorities   showing delivery  of  possession to  the  BDA cannot  be made  

basis for recording a finding that physical possession of the acquired land  

was taken on 30.6.2001.  Learned senior counsel relied upon the judgments  

of this Court in  Nahar Singh v. State of U.P. (1996) 1 SCC 434,  NTPC  

Ltd.  v.  Mahesh Dutta (2009)  8  SCC 339 as  also  the  judgments  of  the  

Allahabad High Court in Anil Kumar v. State of U.P. (2008) 2 AWC 1832  

and Sushil Kumar v. State of U.P. (1999) 1 AWC 764 and submitted that  

symbolic/paper possession taken by the State authorities on 30.6.2001 was  

not sufficient for relieving the Land Acquisition Officer of the obligation to  

pass award within two years of the last publication of the declaration issued  

under Section 6(1).  Shri Khan then referred  to  the judgments of this Court  

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in  Vyalikaval  Housebuilding  Cooperative  Society  v.  V.  Chandrappa  

(2007) 9 SCC 304 and Babu Ram v. State of Haryana (2009) 10 SCC 115  

and argued that respondent No.1 should not be non-suited on the ground of  

delay because no such objection was raised before the High Court.  

13. We have considered the respective submissions.  In the suit filed by  

him, respondent No.1 had unequivocally declared that he did not have any  

objection to the acquisition of land or the plots which were subject matter of  

the acquisition.  The only grievance made by respondent No.1 was that the  

notification had been issued without  sub-dividing plot No. 795.  He also  

claimed that defendant No.3 had delivered possession 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:-

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Sr. No.     Plot no.      Rakba  Farmer  Name

1. 795/1         06-16-10     Nathu, Shakhawat and  Srikrishna 2. 795/2         09-08-05     Smt. Shashi Devi 3. 795/3          05-05-00     Motllal 4. 795/4         04-03-05    Shiv Devi 5. 795/5        12-00-00     Nathu, Sakhawat  and Srikrishna

6.  That according to Land Record Manual the provision  to enter numbers in an account is to start numbering vis  1,2,3,4 from north-west to  south east. In  accordance to  this provision only the above said sub-division was done  which is also  lawful.  The plaintiff has no objection with  the sub-division.

8.  That  it is important to    clarify     here    that     the plaintiff    does  not  have  any    objection     to  the  acquisition    proceedings  or  the  plot  no.s  which  are  subject  to  the  acquisition. The plaintiff only states that acquisition be  done  only  after  sub-division  of  795  according  to  the  rules. The proceedings were initiated on the basis of the  report of Tehsildar dated 30.3.2001 and the compensation  for  795/2 was prepared in the name of ShashiDevi and  she was only shown as the Kastkaar in the said land and  accordingly  Akar  part  11  was prepared  and the  notice  under Section 14 was given to Shashi Devi. After wards  at  any subsequent stage  records were manipulated  and  the plaintiff  was  shown as the  Kastkaar  of 795/2.  The  plaintiff had filed several objections, personally met with  the  officials  of  the  defendants  and  given  applications.  Inspite  of some decisions of inquiries  in favour of the  plaintiff has not been given any relief and due to the fact  that defendant no.3 has delivered possession to defendant  no.  4  on  papers,  the  defendants  are  trying  to  start  construction    after  taking  possession     of  the  land  of  the    plaintiff and are shying away from their legal duty.

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10.   That in the interest of justice it is necessary that the  defendants  be  ordered  that  the  acquisition  and  disbursement  of  compensation be  done  only  after  due  inspection of plot  no.795 and thereafter numbering it in  accordance with law on the basis of possession. Because  the defendants are not paying any heed to the justified  claim of the plaintiff so this suit is being filed.

11.   That the defendants are going to start construction  on the site very   soon and they     have demarcated the land    by embedding stones   from which     it is clear   that     they are    going  to  possess  the  disputed  land.  In  all  these  circumstances the notice  u/s  80 CPC cannot be served  upon the  defendants  and  with the  permission  of  the  Hon'ble Court, this suit is being filed without the notice.”

(underlining is ours)

The main and substantive 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  

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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  possession  of  the  acquired  land  after  

depositing 80% of the compensation in terms of Section 17(3A), prepared  

the layout, developed the acquired land, carved out plots, constructed flats  

for  economically weaker sections  of  the society,  invited  applications  and  

allotted  plots  and flats  to  the  eligible  persons  belonging to  economically  

weaker sections as also LIG, MIG and HIG categories. Unfortunately,  the  

High Court ignored all this and allowed the writ petition on the specious  

ground that the acquired land did not vest in the State Government because  

physical possession of the land belonging to respondent No.1 was not taken  

till  31.7.2002 and the award was not passed within two years as per the  

mandate of Section 11A.   

15. In our view, even if the objection of delay and laches had not been  

raised in the affidavits filed on behalf of the BDA and the State Government,  

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the High Court was duty bound to take cognizance of the long time gap of 9  

years between the issue of declaration under Section 6(1) and filing of the  

writ petition  and declined  relief to respondent No.1 on the ground that he  

was  guilty  of  laches  because  the  acquired  land  had  been  utilized  for  

implementing the residential scheme and third party rights had been created.  

The unexplained delay of about six years between the passing of award and  

filing of writ petition was also sufficient for refusing to entertain the prayer  

made in the writ petition.

16.  It is true that no limitation has been prescribed for filing a petition  

under Article 226 of the Constitution but one of the several rules of self  

imposed restraint evolved by the superior courts is that the High Court will  

not  entertain  petitions  filed  after  long  lapse  of  time  because  that  may  

adversely  affect  the  settled/crystallized  rights  of  the  parties.   If  the  writ  

petition is filed beyond the period of limitation prescribed for filing a civil  

suit for similar cause, the High Court will treat the delay unreasonable and  

decline to entertain the grievance of the petitioner on merits.  In  State of  

Madhya Pradesh v.  Bhailal  Bhai  AIR 1964 SC 1006,  the Constitution  

Bench considered the effect of delay in filing writ petition under Article 226  

of the Constitution and held:

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“…………It has been made clear more than once that the  power to give relief under Article 226 is a discretionary  power. This is specially true in the case of power to issue  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………………… ………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 unreasonable.”

17. In matters involving challenge to the acquisition of land for public  

purpose, this Court has consistently held that delay in filing the writ petition  

should be viewed seriously and relief denied to the petitioner if he fails to  

offer plausible explanation for the delay.  The Court has also held that the  

delay of even few years would be fatal to the cause of the petitioner, if the  

acquired land has been partly or wholly utilised for the public purpose.  

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18. In Ajodhya Bhagat v. State of Bihar (1974) 2 SCC 501, this Court  

approved  dismissal  by  the  High  Court  of  the  writ  petition  filed  by  the  

appellant for quashing the acquisition of his land and observed:

“The High Court held that the appellants were guilty  of  delay and laches.  The High Court  relied on two  important  facts.  First,  that  there  was  delivery  of  possession. The appellants alleged that it was a paper  transaction.  The  High  Court  rightly  rejected  that  contention.  Secondly,  the  High  Court  said  that  the  Trust  invested  several  lakhs  of  rupees  for  the  construction  of  roads  and material  for  development  purposes.  The appellants  were in full  knowledge of  the same. The appellants did not take any steps. The  High  Court  rightly  said  that  to  allow  this  type  of  challenge  to  an  acquisition  of  large  block  of  land  piecemeal  by  the  owners  of  some  of  the  plots  in  succession  would  not  be  proper.  If  this  type  of  challenge is encouraged the various owners of small  plots will come up with writ petitions and hold up the  acquisition proceedings for  more than a generation.  The High Court  rightly  exercised  discretion against  the appellants.  We do not  see any reason to take a  contrary view to the discretion exercised by the High  Court.”

(emphasis supplied)

19. In State of Rajasthan v. D.R. Laxmi (1996) 6 SCC 445, this Court  

referred to Administrative Law H.W.R. Wade (7th Ed.) at pages 342-43 and  

observed:

“The order or action, if ultra vires the power, becomes  void and it does not confer any right. But the action need  

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not necessarily be set at naught in all events. Though the  order  may be void,  if  the  party  does not  approach the  Court within reasonable time, which is always a question  of fact and have the order invalidated or acquiesced or  waived, the discretion of the Court has to be exercised in  a  reasonable  manner.  When  the  discretion  has  been  conferred on the Court, the Court may in appropriate case  decline 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 third party rights were created in the case is hardly  

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a ground for interference. The Division Bench of the  High  Court  was  not  right  in  interfering  with  the  discretion  exercised  by  the  learned  Single  Judge  dismissing the writ petition on the ground of laches.”

22. In Urban Improvement Trust, Udaipur v. Bheru Lal (2002) 7 SCC  

712, this Court reversed the order of the Rajasthan High Court and held that  

the writ petition filed for quashing of acquisition of land for a residential  

scheme framed by the appellant-Urban Improvement Trust was liable to be  

dismissed on the ground that the same was filed after two years.

23. In  Ganpatibai v. State of M.P  (2006) 7 SCC 508, the delay of 5  

years was considered unreasonable and the order passed by the High Court  

refusing to entertain the writ petition was confirmed.  In that case also the  

petitioner had initially filed suit challenging the acquisition of land.  The suit  

was dismissed in 2001.  Thereafter, the writ petition was filed.  This Court  

referred  to  an  earlier  judgment  in  State  of  Bihar v.  Dhirendra Kumar  

(1995) 4 SCC 229 and observed:

“In  State  of  Bihar v.  Dhirendra  Kumar this  Court  had  observed  that  civil  suit  was  not  maintainable  and  the  remedy to question notification under Section 4 and the  declaration under Section 6 of the Act was by filing a  writ  petition.  Even  thereafter  the  appellant,  as  noted  above, pursued the suit in the civil court. The stand that  five years  after  the filing of the suit,  the decision was  rendered does not in any way help the appellant.  Even  after the decision of this Court, the appellant continued to  

17

prosecute  the  suit  till  2001,  when  the  decision  of  this  Court in 1995 had held that suit was not maintainable.”

24. In  Sawaran  Lata  v.  State  of  Haryana  (2010)  4  SCC  532,  the  

dismissal  of  writ  petition  filed  after  seven  years  of  the  publication  of  

declaration and five years of the award passed by the Collector was upheld  

by the Court and it was observed:

“In the instant case, it is not the case of the petitioners  that  they  had  not  been  aware  of  the  acquisition  proceedings as the only ground taken in the writ petition  has been that substance of the notification under Section  4 and declaration under Section 6 of the 1894 Act had  been  published  in  the  newspapers  having  no  wide  circulation.  Even  if  the  submission  made  by  the  petitioners is accepted, it cannot be presumed 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  

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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 No.1.

26. The two judgments relied upon by the learned counsel for respondent  

No.1 are not helpful to the cause of his client. In Vyalikaval Housebuilding  

Coop. Society v. V. Chandrappa (2007) 9 SCC 304, this Court held that  

where the acquisition was found to be vitiated by fraud and mala fide, the  

delay in filing the writ petition cannot be made a ground for denying relief to  

the affected person.  In Babu Ram v. State of Haryana (supra), this Court  

held that  the appellant  cannot be denied relief  merely because there was  

some delay  in filing the writ petition.  The facts of that case were that 34  

kanals 2 marlas  of land situated at Jind (Haryana) was acquired by the State  

Government  under  Section  4  read  with  Section  17(2)(c)  and  17(4)  for  

construction of sewage treatment plant.  Notification under Section 4 was  

issued  on  23.11.2005  and  declaration  under  Section  6  was  issued  on  

2.1.2006.  Mitaso Educational Society, Narwana, filed suit for injuncting the  

State from constructing sewage treatment plant in front of the school. On  

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15.2.2006, the trial Court passed an order of injunction.  In another suit filed  

by one Jagroop similar order was passed by the trial Court.  After some time,  

the  appellant  filed  writ  petition  under  Article  226  of  the  Constitution.  

Before this Court it was  argued that relief should be denied to the appellant  

because there was delay in filing the writ petition.  Rejecting this argument,  

the Court observed:

“Since Section 5-A of the LA Act had been dispensed  with, the stage under Section 9 was arrived at within six  months from the date of the notice issued under Sections  4 and 17(2)(c)  of  the  LA Act.  While  such notice  was  issued on 23-11-2005, the award under Section 11 was  made  on 23-5-2006.  During  this  period,  the  appellants  filed a suit and thereafter, withdrew the same and filed a  writ petition in an attempt to protect their constitutional  right  to  the  property.  It  cannot,  therefore,  be  said  that  there was either any negligence or lapse or delay on the  part of the appellants.”

27. De hors the aforesaid conclusion, we are convinced that the premise  

on which the High Court declared that the acquisition proceedings will be  

deemed to have lapsed because the award was not passed within two years is  

ex facie erroneous.  Admittedly, the State Government had acquired the land  

by issuing  notification  under  Section  4  read  with  Section  17(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  

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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  

statements contained in the affidavits filed before the High Court that the  

revenue  authorities  visited  the  spot  and  made  entries  in  the  Field  Book  

regarding delivery of possession.  The photographs produced by the parties  

before this Court show that after taking possession of the acquired land, the  

BDA constructed roads,buildings etc., laid sewer lines and erected poles for  

electric lines.  The photographs also reveal that by taking advantage of the  

impugned order, respondent No.1 took possession of a portion of the land on  

which  the BDA had already carried out development.  All this is sufficient  

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to  discard  the  claim  of  respondent  No.1  that  actual  possession  of  the  

acquired land had not been delivered to the BDA till July, 2002.  

28.  What should be the mode of taking possession of the land acquired  

under the Act?  This question was considered in Balwant Narayan Bhagde  

v. M.D. Bhagwat (1976) 1 SCC 700.  Untwalia, J. referred to the provisions  

contained  in  Order  XXI  Rules  35,  36,  95  and  96  of  the  Code  of  Civil  

Procedure,  decisions  of  different  High  Courts  and  opined  that  even  the  

delivery  of  so  called  “symbolical”  possession  is  delivery  of  “actual”  

possession of the right, title and interest of the judgment-debtor.  Untwalia,J.  

further observed that if the property is land over which there is no 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.  The Learned Judge went on to say:

“When a public notice is published at a convenient place  or near the land to be taken stating that the Government  intends to take possession of the land, then ordinarily and  generally  there  should  be  no  question  of  resisting  or  impeding the taking of possession. Delivery or giving of  possession by the owner or the occupant of the land is not  required. The Collector can enforce the surrender of the  land to himself under Section 47 of the Act if impeded in  taking  possession.  On  publication  of  the  notice  under  Section 9(1) claims to compensation for all interests in  the land has to be made; be it the interest of the owner or  of a person entitled to the occupation of the land. On the  taking of possession of the land under Section 16 or 17  

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(1) it  vests absolutely in the Government free from all  incumbrances.  It  is,  therefore,  clear  that  taking  of  possession within 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.

(emphasis supplied)

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  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 judicial decisions under the Code of  Civil Procedure. Nor would possession merely on paper  be  enough.  What  the  Act  contemplates  as  a  necessary  condition of vesting of the land in the Government is the  taking  of  actual  possession  of  the  land.  How  such  possession may be taken would depend on the nature of  

23

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. 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 should, therefore, be taken  possession of and determining its extent, was sufficient to  constitute  taking  of  possession. It  appears  that  the  appellant  was  not  present  when  this  was  done  by  the  Tehsildar, but the presence of the owner or the occupant  of the land is not necessary to effectuate the taking of  possession. It is also not strictly necessary as a matter of  legal  requirement  that  notice  should  be  given  to  the  owner or the occupant of the land that possession would  be taken at a particular 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.”

(emphasis supplied)

29. In Balmokand Khatri Educational and Industrial Trust v. State of  

Punjab (1996) 4 SCC 212, the Court negatived the argument that even after  

finalization of the acquisition proceedings  possession of the land   continued  

with the appellant and observed:

“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  

24

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  in  terms  of  

Section 17(3A) and observed that  it  is  difficult  to  comprehend that  after  

depositing that much of amount it had obtained possession  only on a small  

fraction of land.  

32. In  Sita Ram Bhandar Society v. Govt. of NCT, Delhi   (2009) 10  

SCC 501 and  Omprakash Verma  v. State of Andhra Pradesh  (2010) 13  

SCC 158, it was held that when possession is to be taken of a large tract of  

land  then  it  is  permissible  to  take  possession  by  a  properly  executed  

25

panchnama.  Similar view was expressed in the recent judgment in Brij Pal  

Bhargava v. State of UP 2011(2) SCALE 692.    

33. The  judgment  in  Nahar Singh v. State of U.P. (supra) on which  

reliance was placed by the learned senior counsel for respondent No.1 is  

clearly distinguishable.  In that case, the Court had found that possession of  

the acquired land had not been taken by the State and the award was not  

passed even after  two years from the date of coming into force of the Land  

Acquisition (Amendment) Act, 1984 whereby Section 11A was inserted  in  

the Act.  

34. The  principles  which  can  be  culled  out  from  the  above  noted  

judgments are:

i) No hard and fast rule can be laid down as to what act would constitute  

taking of possession of the acquired land.

ii) If the acquired land is vacant, the act of the concerned State authority  

to  go  to  the  spot  and prepare  a  panchnama will  ordinarily  be  treated  as  

sufficient to constitute taking of possession.

iii) If crop is standing on the acquired land or building/structure exists,  

mere going on the spot by the concerned authority will,  by itself,  be not  

sufficient  for taking possession.   Ordinarily, in such cases, the concerned  

26

authority will have to give notice to the occupier of the building/structure or  

the person who has cultivated the land and take possession in the presence of  

independent  witnesses  and  get  their  signatures  on  the  panchnama.   Of  

course, refusal of the owner of the land or building/structure may not lead to  

an inference that the possession of the acquired land has not been taken.

iv) If the acquisition is of a large tract of land, it may not be possible for  

the acquiring/designated authority to take physical possession of each and  

every parcel of the land and it will be sufficient that symbolic possession is  

taken  by preparing  appropriate  document  in  the  presence  of  independent  

witnesses and getting their signatures on such document.   

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  

27

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  the  applicability  of  Section  11A  in  cases  involving  

acquisition of land under Section 4 read with Section 17 and observed:

“Ordinarily, the Government can take possession of the  land  proposed  to  be  acquired  only  after  an  award  of  compensation  in  respect  thereof  has  been  made  under  Section 11. Upon the taking of possession the land vests  in the Government, that is to say, the owner of the land  loses  to  the  Government  the  title  to  it.  This  is  what  Section  16  states.  The  provisions  of  Section  11-A are  intended  to  benefit  the  landowner  and  ensure  that  the  award is made within a period of two years from the date  of  the  Section  6  declaration.  In  the  ordinary  case,  therefore,  when  Government  fails  to  make  an  award  within two years of the declaration under Section 6, the  land has still not vested in the Government and its title  remains with the owner, the acquisition proceedings are  still pending and, by virtue of the provisions of Section  11-A, lapse. When Section 17(1) is applied by reason of  urgency, Government takes possession of the land prior  to  the  making  of  the  award  under  Section  11  and  thereupon the owner is divested of the title to the land  which is vested in the Government. Section 17(1) states  so in unmistakable terms. Clearly, Section 11-A can have  no application to cases of acquisitions under Section 17  because the lands have already vested in the Government  

28

and there is no provision in the said Act by which land  statutorily  vested  in  the  Government  can  revert  to  the  owner.”

(emphasis supplied)

37. The same view was reiterated in  Awadh Bihari Yadav v. State of  

Bihar (supra),  Pratap v. State of Rajasthan  (supra),  Parsinni v.  Sukhi  

(1993) 4 SCC 375, Allahabad Development Authority v. Nasiruzzaman  

(supra)  and Government of A.P. v. Kollutla Obi Reddy (supra).  

38. In the result, the appeal is allowed.  The impugned order is set aside  

and  the  writ  petition  filed  by  respondent  No.1  is  dismissed  with  cost  

quantified at Rs.1,00,000/-.  Respondent No.1 shall deposit the amount of  

cost with the appellant within a period of two months from today.  

….……………… ….…J.

[G.S. Singhvi]

…..…..………………..J. [Asok Kumar Ganguly]

New Delhi April 26, 2011.

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