M/S MAGNUM PROMOTERS P.LTD. Vs UNION OF INDIA .
Bench: V. GOPALA GOWDA,C. NAGAPPAN
Case number: C.A. No.-004284-004284 / 2011
Diary number: 20338 / 2008
Advocates: SENTHIL JAGADEESAN Vs
SAHARYA & CO.
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I.A.No.3 of 2014 in C.A. No.4284 of 2011 1
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
I.A.3 of 2014
IN
CIVIL APPEAL NO.4284 OF 2011
M/S MAGNUM PROMOTERS P. LTD. ………APPELLANT
Vs.
UNION OF INDIA & ORS. ………RESPONDENTS
J U D G M E N T
V.GOPALA GOWDA, J.
1. This I.A. No.3 of 2014 in Civil Appeal No.
4284 of 2011 is filed by the appellant seeking
for direction and appropriate orders for disposal
of this appeal in terms of Section 24(2) of the
REPORTABLE
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I.A.No.3 of 2014 in C.A. No.4284 of 2011 2
Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement
Act, 2013 (in short ‘the Act of 2013’). The
appellant-land owner has come to this Court
questioning the correctness of the judgment and
order dated 16.05.2008 passed by the High Court
of Delhi in W.P.(C)No. 3695 of 1999, inter alia,
urging various facts and legal contentions.
2. Brief facts of the case are stated
hereunder:
The appellant is the lawful owner of the
land comprised in Khasra Nos. 750 Min (1-2 ½) and
751 Min (0-18) situated in the revenue estate of
Village Malikpur, Kohi alias Rangpuri, Tehsil
Mehrauli in the National Capital Territory of
Delhi (for short ‘NCT, Delhi’). The Municipal
Corporation of Delhi (MCD) vide its sanction
bearing No. S.N.406/B/HQ/17/148/AE (B) HQ III
dated 12.07.1990 gave sanction for constructing
the farmhouse from common land. On 17.12.1993,
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I.A.No.3 of 2014 in C.A. No.4284 of 2011 3
the Completion Certificate with regard to the
farm house on the land in question was issued to
the appellant by the MCD. On 27.06.1996, the
Government of National Capital Territory issued
Notification No.F.9 (12)/95 /L&B/LA/8474 dated
01.06.1995 under Section 4 of Land Acquisition
Act, 1894 (in short ’the repealed L.A. Act’) for
the acquisition of the different parcels of land
including an area measuring 369 bighas and 1
biswa situated in the revenue estate of village
Malikpur Kohi alias Rangpuri in the NCT, Delhi.
The above said notification issued for
acquisition of the land covered the land and
building owned by the appellant bearing Khasra
No. 750 for 3 bighas and Khasra No.751 for 3.12
bighas. The public purpose mentioned in the said
acquisition notification was for development of
Vasant Kunj Phase IV.
3. On 24th June, 1997, a declaration under
Section 6(1) of the repealed L.A. Act was issued
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I.A.No.3 of 2014 in C.A. No.4284 of 2011 4
by the NCT, Delhi in respect of the land sought
to be acquired including the land owned by the
appellant. On 9th June, 1999, notices under
Sections 9 and 10 of the repealed L.A. Act with
regard to the land in question were issued by the
Land Acquisition Collector to the appellant. On
15th June, 1999, the appellant filed a writ
petition (c) No. 3695 of 1999 before the High
Court of Delhi, questioning the legality of the
aforesaid acquisition notifications published
under Sections 4 and 6 of the repealed L.A. Act
urging various grounds. Other similarly placed
land holders also challenged the said two
notifications before the High Court. The writ
petitions were heard together by the High Court
and passed its judgment and order dated
16.05.2008 by dismissing the writ petitions
holding that the acquisition of land by the NCT,
Delhi is legal and valid and did not suffer from
any legal infirmities. Hence, this appeal.
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I.A.No.3 of 2014 in C.A. No.4284 of 2011 5
4. It is the case of the appellant that
throughout the proceedings before the High Court
as well as this Court, the appellant has been in
continuous physical possession of the land
involved in this appeal as it has been protected
by various orders of “status quo” by the High
Court as well as this Court with respect to the
possession of the land in question.
5. Mr. Chandra Uday Singh, the learned senior
counsel appearing on behalf of the appellant
placed strong reliance upon Section 24(2) of the
Act of 2013 to substantiate the plea that actual
physical possession of land has not been taken by
the Land Acquisition Collector even after 5 years
being elapsed after the award was passed as on
the date of the Act of 2013 which came into force
with effect from 01.01.2014. The aforesaid
provision is extracted hereunder:-
“24(2) Notwithstanding anything contained in sub-section (1), in case of land acquisition
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I.A.No.3 of 2014 in C.A. No.4284 of 2011 6
proceedings initiated under the LA Act, where an Award under the said Section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act.
Provided that whether an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries specified in the notifications for acquisition under Section 4 of the said land acquisition and shall be entitled to compensation in accordance with the provisions of this Act.”
6. Having regard to the facts narrated above
that neither physical possession of the land nor
compensation awarded was paid to the appellant,
it is contended that the acquisition proceedings
of the land of the appellant are lapsed. In
support of the aforesaid submission he has placed
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I.A.No.3 of 2014 in C.A. No.4284 of 2011 7
reliance upon the decisions of this Court in the
cases of Pune Municipal Corporation and Anr. Vs.
Harakchand Misirimal Solanki & Ors.1, Union of
India & others v. Shiv Raj & others2, Bimla Devi
& Others v. State of Haryana & Others3, Bharat
Kumar v. State of Haryana & Another4 and Sree
Balaji Nagar Residential Association v. State of
Tamil Nadu & others5. Therefore, the learned
senior counsel has requested for grant of relief
as prayed for in this application.
7. The above said provision of the Act of 2013
quoted above has been interpreted by the three
Judge Bench of this Court in the case of Pune
Municipal Corporation (supra), the relevant paras
20 and 21 from the case are extracted hereunder:-
“20…….it is clear that the award pertaining to the subject land has been made by the Special Land Acquisition Officer more than five
1 (2014) 3 SCC 183 2 (2014) 6 SCC 564 3 (2014) 6 SCC 583 4 (2014) 6 SCC 586 5 2014 (10) SCALE 388
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I.A.No.3 of 2014 in C.A. No.4284 of 2011 8
years prior to the commencement of the 2013 Act. It is also admitted position that compensation so awarded has neither been paid to the landowners/persons interested nor deposited in the court. The deposit of compensation amount in the Government treasury is of no avail and cannot be held to be equivalent to compensation paid to the landowners/persons interested. We have, therefore, no hesitation in holding that the subject land acquisition proceedings shall be deemed to have lapsed under Section 24(2) of the 2013 Act.
21. The argument on behalf of the Corporation that the subject land acquisition proceedings have been concluded in all respects under the 1894 Act and that they are not affected at all in view of Section 114(2) of the 2013 Act, has no merit at all, and is noted to be rejected. Section 114(1) of the 2013 Act repeals the 1894 Act. Sub-section (2) of Section 114, however, makes Section 6 of the General Clauses Act, 1897 applicable with regard to the effect of repeal but this is subject to the provisions in the 2013 Act. Under Section 24(2) land acquisition proceedings initiated under the 1894 Act, by legal fiction, are deemed to have lapsed where award has been made five years or more prior to the
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I.A.No.3 of 2014 in C.A. No.4284 of 2011 9
commencement of the 2013 Act and possession of the land is not taken or compensation has not been paid. The legal fiction under Section 24(2) comes into operation as soon as conditions stated therein are satisfied. The applicability of Section 6 of the General Clauses Act being subject to Section 24(2), there is no merit in the contention of the Corporation.”
8. Further, reliance was also placed on the
decision of this Court in Sree Balaji Nagar
Residential Association (supra), wherein it was
opined that Section 24(2) of the Act of 2013 does
not exclude any period during which the land
acquisition proceedings might have remained
stayed on account of stay or injunction or
“status quo” order regarding possession of the
land granted by any court. It was conclusively
held that the Legislature has consciously omitted
to extend the period of five years indicated in
Section 24(2) of the Act of 2013, even if the
proceedings had been delayed on account of an
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I.A.No.3 of 2014 in C.A. No.4284 of 2011 10
order of stay or injunction granted by a court of
law or for any reason.
9. It was further contended that the phrase used
under Section 24(2) is ‘physical possession’
which means actual taking over possession from
the appellant-land owner by the Land Acquisition
Collector. In support of this contention he has
also placed reliance upon two judgments of this
Court in Prahlad Singh & Ors. v. U.O.I & Ors6
case and Raghbir Singh Sehrawat v.
State of Haryana and Ors.7.
10. On the other hand, Ms. Rachna Srivastava,
the learned counsel on behalf of respondent Nos.
2 & 3 contended that the Act of 2013 is
prospective in operation by virtue of Section 24
read with Section 114 of the Act of 2013. As
provided under Section 24, the effect of Section
6 of the General Clauses Act, 1897 the action
6 (2011) 5 SCC 386 7 (2012) 1 SCC 792
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I.A.No.3 of 2014 in C.A. No.4284 of 2011 11
taken by respondent Nos. 2-4 has been saved. She
submits that by reading the above two Sections of
the Act, it is clear that Legislature wanted to
protect and save the acquisition proceedings
initiated under the repealed L.A. Act,
particularly where possession of the acquired
land has been taken. It is submitted that the
intention of the Legislature in providing Section
24(2) of Act of 2013 was never to destroy the
entire acquisition proceedings in acquiring the
land for the public purpose under the repealed
L.A. Act, 1894.
11. It is further contended that it is a well
settled position of law that the proceedings
initiated and culminated under the repealed Act
of 1894 are not to be disturbed by interpreting
the provisions of Section 24(2) of the Act of
2013 to declare the acquisition proceeding of
land as lapsed on account of not taking physical
possession of the land after 5 year period or not
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I.A.No.3 of 2014 in C.A. No.4284 of 2011 12
paying compensation from the date of passing of
the award. Under the provisions of the repealed
L.A. Act of 1894, by operation of Section 16 or
17 (1) of the Act as the case may be, once the
possession of the acquired land is taken, the
land will be vested with the State Government and
is absolutely free from all encumbrances.
Thereafter, it is not even open for the State
Government to restore the land to the land owner
in exercise of its power under Section 48 of the
repealed L.A. Act as, it is not permissible in
law. The above said legal position is laid down
by this Court in the cases of Satendra Prasad
Jain v. State of UP8. and Sanjeevanagar Medical
and Health Emloyees’ Co-operative Housing Society
v. Mohd. Abdul Wahab and Ors.9. In the aforesaid
cases, this Court has held that Section 11(A) of
the repealed L.A. Act, is not applicable (which
is analogous to Section 24 of the Act of 2013)
8 (1993) 4 SCC 369 9 (1996) 3 SCC 600
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I.A.No.3 of 2014 in C.A. No.4284 of 2011 13
and that in such circumstances, the only
consequence provided under the repealed L.A. Act
is payment of interest under Section 34 in
respect of the acquired land. Therefore, the
acquisition of land cannot be deemed to have
lapsed under Section 24(2) of the Act of 2013, in
view of the law laid down in the above cases
referred to supra. It is further contended by
the learned counsel for the respondents that the
above said judgments were not brought to the
notice of this Court and could not be considered
at the time of rendering the decision in the case
of Pune Municipal Corporation and other cases of
this Court referred to supra. Therefore, the
reliance placed upon the said cases by the
appellant’s senior counsel do not render any
assistance in support of its case for grant of
relief as prayed in the application.
12. It is further contended by the learned
counsel that if either of the two negative
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conditions mentioned in Section 24(2) of the Act
of 2013 remains unfulfilled, the acquisition
proceedings of the land involved in this appeal
cannot be held to have lapsed as it would defeat
the purpose of acquisition and intendment of the
L.A. Act. In other words, the two negative
conditions contained in Section 24(2) has to be
read conjunctively and as such both the
conditions are required to be fulfilled for the
purpose of holding the acquisition proceedings as
lapsed. This aspect of the matter has been dealt
with by this Court in the case of The Punjab
Produce and Trading Co. Ltd. v. CIT, West Bengal,
Calcutta10. It is contended that this case was
also not brought to the notice of this Court in
the case of Pune Municipal Corporation (supra)
and other cases referred to supra and therefore
the said decisions require re-consideration by
the larger Bench of this Court.
10 (1971) 2 SCC 540
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13. Further, it is urged that the appellant has
violated the provisions of Sections 3 and 4 of
the Delhi Land (Restriction on Transfer) Act,
1972. It is contended that during the pendency
of the present appeal the appellant has sold the
land admeasuring area 12 Bigha, falling in Khasra
Nos. 745(1-18), 746 (2-14), 747 (4-8) 750 (1-16),
751 (1-4) situated in the Revenue Estate of
Village Malikpur Kohi at Rangpuri, Tehsil Vasant
Vihar, New Delhi along with all necessary rights
to M/s. DCBC Properties Pvt. Ltd. vide registered
sale deed No. 6539 dated 1st June, 2012 out of
which 1 Bigha 2.5 Biswas in Khasra No. 750 and 18
Biswas in Khasra No. 751 have been acquired under
acquisition notification. Sections 3 and 4 read
along with Section 9 of the Delhi Land
(Restrictions on Transfer) Act of 1972 are
extracted hereunder for the purpose of answering
the legal contention urged in this regard:-
“3. Prohibition on transfer of lands acquired by Central Government -
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No person shall purport to transfer by sale, mortgage, gift, lease or otherwise any land or part thereof situated in the Union territory of Delhi which has been acquired by the Central Government under the Land Acquisition Act, 1984 or under any other law providing for acquisition of land for a public purpose.
4. Regulation on transfer of lands in relation to which acquisition proceedings have been initiated.
No person shall, except with the previous permission in writing of the competent authority, transfer or purport to transfer by sale, mortgage, gift, lease or otherwise any land or part thereof situated in the Union territory of Delhi, which is proposed to be acquired in connection with the Scheme and in relation to which a declaration to the effect that such land or part thereof is needed for a public purpose having been made by the Central Government under section 6 of the Land Acquisition Act, 1894, the Central Government has not withdrawn from the acquisition under section 48 of that Act.
……
9. Penalty - If any person contravenes the provisions of section 3 or section 4,
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he shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.”
14. Further the learned counsel for the
respondents 2 to 4 sought to distinguish the two
decisions in the case of Prahlad Singh (supra)
and Raghbir Singh Sehrawat (supra) and further if
this Court had to differ from the decision as per
Sita Ram Bhandar Society, New Delhi v. Lieutenant
Governor, Government Of NCT, Delhi And Others11
the said cases should have been referred to the
larger Bench, that has not been done. Therefore,
reliance placed upon the aforesaid decisions on
behalf of the appellant are of no avail in
support of the plea taken that physical
possession of the land is not taken by respondent
nos.2, 3 and 4. Therefore, she has requested this
Court for the dismissal of the application filed
under Section 24(2) of the Act of 2013 as it has
no application in the case on hand. 11 (2009) 10 SCC 501
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15. We have carefully gone through the legal
submissions made by the learned counsel on behalf
of the parties in respect of the application
filed by the appellant under Section 24(2) of the
Act of 2013 with reference to the averments made
therein and the objection statement filed by
respondent Nos. 2-4 and response affidavit of the
Land Acquisition Collector. The official original
record produced before us for our perusal as per
our direction, discloses that the “Kabza
Karyavahi” or possession taking proceedings of
the acquired land was started on 27.12.2013. As
per the record, on 27.12.2013, the taking over of
possession was done only to the extent of the
vacant portion of the appellant’s land whereas
the building structure situated on the land could
not be taken on that day as the demolition squad
was not available for respondent No.4. Thus, it
is clear from the said document available on
record that the possession of the building
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structure situated on the appellant’s land was
not taken by him on 27.12.2013. As per the
possession memo available in the record, it is
recorded in the said proceeding that the further
action for taking over possession in respect of
the land were to be continued by the Land
Acquisition Collector on 28.12.2013 and there is
no record to show as to whether the action
continued on 28.12.2013 in this regard. The
alleged taking over of possession of the land
involved in this appeal was done on 31.12.2013,
as per the document annexure R-1 memo of
possession taking possession of the acquired land
in Award no.07/98-99 is signed by the officers of
the Land and Building Department of the third
respondent; the same was alleged to have
immediately been delivered to the DDA officials
i.e. respondent no.5 on the same day. According
to respondent Nos. 3 and 4, the possession of the
land involved in this appeal has been allegedly
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taken by them without any objections being raised
by the appellant-owner. The above said plea taken
by them cannot be accepted by us as the same is
wholly contrary to the factual position regarding
possession of the land. The question of raising
objection to respondent Nos. 3 and 4 for taking
possession of the land by the appellant did not
arise at all for the reason that notice in this
regard was not issued to it calling upon it to
handover possession of the land to the Land
Acquisition Collector. The reasons stated at
paragraphs 8 and 9 in the response affidavit
filed by one Mr. Vivek Kumar Tripathi, who is the
Land Acquisition Collector-respondent No. 4 in
these proceedings with regard to limits of the
then existing sub-divisions Tehsils in Delhi
being modified, consequently the revenue estate
of the boundaries of village Malikpur Kohi
Rangpuri which previously formed part of District
South, due to the said reorganisation, sub-
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division, Delhi Cantonment and sub-division,
Vasant Vihar which were earlier part of District
of South West have become part of District New
Delhi. Resultantly, village Rangapuri which was
part of sub-division Vasant Vihar under the
jurisdiction of Land Acquisition Collector,
South-West fell under the jurisdiction of
District New Delhi. The notification dated
11.09.2012 was issued by the first respondent
creating 11 districts by altering sub-divisions
Tehsils in Delhi. Land Acquisition of the land
involved in these proceedings was transferred
from District South-West to the office
of respondent no.4 on 21.12.2012 and remaining
records on 14.01.2014. The above said
make believe story narrated by the Land
Acquisition Collector in his affidavit is a
deliberate intention to misrepresent facts to
justify the alleged taking over possession of the
land on 31.12.2013. The aforesaid explanation
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furnished by the Land Acquisition Collector in
his affidavit for the alleged taking over
possession of acquired land is wholly unnecessary
and irrelevant. Therefore, the said explanation
by him cannot be accepted by us. The averments
made at para 10 of the response affidavit of Land
Acquisition Collector are contrary to the “Kabza
Karyavahi (possession taking over proceedings)
dated 27.12.2013 and the reason stated in the
said memo is that the Land Acquisition Collector
could not take possession of the building
structure situated on the acquired appellant’s
land, as the demolition squad was not available
on that day. The possession of the land taking
over document Annexure R-1 to the response
affidavit dated 31.12.2013 produced by the Land
Acquisition Collector in which it is stated that
the possession of the land of the appellant has
been taken on 31.12.2013 the said averment in the
affidavit is contradictory to the “kabza
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karyavahi” document dated 27.12.2013 available in
the original record. The contradictory statements
made by the Land Acquisition Collector in his
response affidavit at para 10 cannot be accepted
by us. The plea sworn by the Land Acquisition
Collector in the affidavit is a false statement
of fact for the reason that the physical
possession of the land is in fact not taken and
could not have been taken by the Land Acquisition
Collector from the appellant when the interim
order of “status quo” with regard to the
possession of land of the appellant was passed by
this Court on 04.08.2008. The said order being
well within the knowledge of the respondent Nos.
2-5 is evident from the record of proceedings of
this Court dated 24.09.2010 as the names of
learned counsel on behalf of the respondent Nos.
1-5 is shown in this Court’s record of
proceedings. The further plea taken by him at
para 10 of the said affidavit that the second
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respondent enquired about the litigation status
in respect of the order passed in relation to
this case and other cases of village Rangpuri
from the 5th respondent-DDA and did not receive
any response from it is once again a false
statement of fact. Therefore, the office of the
3rd respondent being unaware of any interim order
of “status quo” is once again a false statement
and the same has been deliberately made by him to
justify his action as stated in the respondent
affidavit. Hence, the statement of facts sworn to
at paras 8-10 are liable to be rejected and
accordingly rejected. Therefore, the plea of the
Additional District Collector/Land Acquisition
Collector and its officers to have allegedly
taken over possession of the land as stated at
paragraph 10 of the response affidavit is false
and it amounts to contempt of this Court
committed by them, as they have wilfully
disobeyed the interim order of this Court dated
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04.08.2008. Therefore, the plea of taking over
possession of land of the appellant either on
27.12.2013 as per the original record or on
31.12.2013 as per document Annexure R1 cannot be
accepted by us. The respondents have
misrepresented certain relevant facts to this
Court by filing the above referred response
affidavit with an oblique motive to deny the
valuable statutory right accrued in favour of the
appellant under Section 24(2) of the Act of 2013.
Hence, the conduct of respondent No. 4 and
officials of respondent No.3 in misrepresenting
facts is deprecated by us.
16. The document of Annexure R-1 to the
response affidavit has been falsely created by
respondent Nos. 3 and 4 with a malafide intention
not only to defeat the statutory right of the
appellant-land owner accrued in its favour under
the provision of Section 24(2) of the Act of
2013, but it is a clear case of misrepresentation
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of facts to this Court with an oblique motive to
deprive the valuable constitutional right of the
appellant to the land involved in these
proceedings. This conduct of the ADM/Land
Acquisition Collector is highly objectionable and
reprehensible as his action in creating false
official documents to deny the legitimate right
accrued in favour of the appellant, which conduct
of him amounts to breach of trust reposed with
him by the public to discharge his public
functions in the larger interest of public. The
public officers are required to maintain the
public record honestly, truly and correctly, the
Additional District Magistrate cadre indulging in
such unlawful acts will discredit the credibility
of the public office from maintaining trust and
confidence in the public office which is most
important and necessary for the good
administration of the second respondent. This has
not been done in the case on hand by the Land
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Acquisition Collector which cannot be appreciated
by this Court.
17. Further, the reliance is placed upon the
judgment by the learned senior counsel on behalf
of the appellant on Prahlad Singh’s case (supra)
to show that the alleged taking over of the
possession of the land is not legally correct.
The relevant paragraph reads thus:-
“13. We have given our serious thought to the entire matter and carefully examined the records. Section 16 lays down that once the Collector has made an award under Section 11, he can take possession of the acquired land. Simultaneously, the section declares that upon taking possession by the Collector, the acquired land shall vest absolutely in the Government free from all encumbrances. In terms of the plain language of this section, vesting of the acquired land in the Government takes place as soon as possession is taken by the Collector after passing an award under Section 11. To put it differently, the vesting of land under Section 16 of the Act presupposes actual taking of possession and till that is done,
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legal presumption of vesting enshrined in Section 16 cannot be raised in favour of the acquiring authority. Since the Act does not prescribe the mode and manner of taking possession of the acquired land by the Collector, it will be useful to notice some of the judgments in which this issue has been considered.”
(emphasis supplied by this Court)
At para 19 of the above case, it has been further
clearly held that the memo of taking over
possession of the acquired land must be in the
presence of independent witnesses, undisputedly
the same has not been done by respondent Nos. 2,
3 and 4 in the case on hand. Therefore, in view
of the principles laid down in the above case,
the plea of the respondents that as per memo of
possession dated 31.12.2013 the possession of the
said land of the appellant was taken and handed
over to the DDA-respondent no.4 on the same day
is not accepted by us as it is not done in fact
and could not have been done in view of the
interim order referred to supra and also the same
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I.A.No.3 of 2014 in C.A. No.4284 of 2011 29
has not been done in the presence of independent
witnesses as required in law.
18. Further, this Court held at para 26 in
Raghuvir Singh Sehravat’s case (supra) as under:-
“26. Bhagwati, J. (as he then was) and Gupta, J., who constituted the majority did not agree with Untwalia, J. and observed as under: (Balwant Narayan Bhagde case, SCC pp. 711-12, para 28) “28. … 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 the land. Such possession would have to be taken as the nature of the land admits of……….”
(emphasis laid by this Court)
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Thus, in view of the above decisions, this Court
has clearly laid down the legal principle as to
how taken over physical possession of the
acquired land means the actual taking of
possession of it of it from the land
owners/interested persons.
19. The learned counsel on behalf of respondent
Nos. 2,3 and 4 sought to distinguish the said
judgments by placing reliance upon the judgment
in the case of Sita Ram Bhandar Society (supra)
wherein this Court opined thus:-
“28. A cumulative reading of the aforesaid judgments would reveal that while taking possession, symbolic and notional possession is perhaps not envisaged under the Act but the manner in which possession is taken must of necessity depend upon the facts of each case. Keeping this broad principle in mind, this Court in T.N. Housing Board v. A. Viswam after considering the judgment in Narayan Bhagde case, observed that while taking possession of a large
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I.A.No.3 of 2014 in C.A. No.4284 of 2011 31
area of land (in this case 339 acres) a pragmatic and realistic approach had to be taken. This Court then examined the context under which the judgment in Narayan Bhagde case had been rendered and held as under: (Viswam case, SCC p. 262, para 9)
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 panchnama 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 be cooperative in taking possession of the land.
29. In Balmokand Khatri Educational and Industrial Trust v. State of Punjab yet again the question was as to the taking over of the possession of agricultural land and it was observed thus: (SCC p. 215, para 4)
4. It is seen that the entire gamut of the acquisition
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I.A.No.3 of 2014 in C.A. No.4284 of 2011 32
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.”
20. Further, on the plea taken by the learned
counsel on behalf of the respondent nos. 2 and 3
regarding contravention of Sections 3 and 4 of
the Act of 1972 for transfer of the land in
question by the appellant during the pendency of
the proceedings as it was acquired by the NCT on
behalf of the Central Government by placing
reliance on Article 239AA of the Constitution,
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I.A.No.3 of 2014 in C.A. No.4284 of 2011 33
with respect to the contention of 1972 Act is
concerned, the same has no application to the
fact situation. In view of the said provision, it
has been contended by the learned counsel on
behalf of the respondent nos. 2, 3 and 4 that the
land and home subject-matters that are in Delhi
are still with the Central Government and
therefore, acquisition of land by NCT is the
acquisition made by it on behalf of the Central
Government. This is far-fetched argument of the
learned counsel and therefore, the same cannot be
accepted by us for the reason that the
acquisition notification available in the
original record would clearly show that the land
is acquired by the NCT, Delhi and not on behalf
of the Central Government. Hence, the said
contention is liable to be rejected and
accordingly rejected.
21. Apart from the said reason, even assuming
for the sake of argument that the Act of 1972 is
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I.A.No.3 of 2014 in C.A. No.4284 of 2011 34
applicable, it has been specifically stated by
the learned senior counsel that the competent
authority has given permission to the appellants
to transfer the land in favour of subsidiary
company of the appellant. The same can be seen in
para 5 of the sale deed produced before this
Court which reads thus:-
“5. The vendor have obtained NOC under provisions of the Delhi Land (Restriction on transfer) Act, 1972 from the concerned department/Tehsildar Notification Delhi and shall obtain all such necessary clearance/permission as may be required for effectively transferring and conferring the title on the Vendee.”
Therefore, the provisions of Sections 3, 4, and 9
have no application to the fact situation on hand
and there is no substance in this plea of the
respondent and the same is rejected.
22. In view of the aforesaid findings and reasons
recorded by us, the prayer made in this
application is allowed. The acquisition
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I.A.No.3 of 2014 in C.A. No.4284 of 2011 35
proceedings in respect of the appellant’s land
have lapsed. Consequently the appeal is also
allowed quashing the acquisition proceeding
notifications in respect of the appellant’s land.
No costs.
…………………………………………………………J. [V. GOPALA GOWDA]
…………………………………………………………J. [C. NAGAPPAN]
New Delhi, November 27 ,2014
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I.A.No.3 of 2014 in C.A. No.4284 of 2011 36
ITEM NO.1C-For Judgment COURT NO.9 SECTION XIV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
I.A. No. 3 in Civil Appeal No(s). 4284/2011
M/S MAGNUM PROMOTERS P.LTD. Appellant(s)
VERSUS
UNION OF INDIA & ORS. Respondent(s)
Date : 27/11/2014 This appeal was called on for JUDGMENT today.
For Appellant(s) Mr. Senthil Jagadeesan,Adv.
For Respondent(s) M/s Saharya & Co.
Ms. Sushma Suri,Adv.
Mrs. Anil Katiyar,Adv.
Ms. Sushma Suri,Adv.
Hon'ble Mr. Justice V.Gopala Gowda pronounced the
judgment of the Bench comprising His Lordship and
Hon'ble Mr. Justice C. Nagappan.
I.A. No. 3/2014 is allowed.
The appeal is allowed in terms of the signed order.
(VINOD KUMAR) (MALA KUMARI SHARMA)
COURT MASTER COURT MASTER
(Signed Reportable judgment is placed on the file)