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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     NO.     6183       OF     2012   (Arising out of SLP(C)No.26705 of 2010

Patasi Devi      ...Appellant

versus

State of Haryana & Ors.      ...Respondents

O      R      D      E      R   

Leave granted.

By notification dated 15.12.2006 issued under Section  

4(1) of the Land Acquisition Act, 1894 (for short, 'the Act'),  

the Government of Haryana proposed the acquisition of land  

measuring 231.04 acres (48.23 acres of village Bahayapur, 139.25  

acres of village Para and 43.56 acres of village Bohar, Tehsil  

and District Rohtak) for the development of Residential Sector  

36, Rohtak under the Haryana Urban Development Authority Act,  

1977 by the Haryana Urban Development Authority (HUDA). After  

considering the report of the Land Acquisition Collector, who is  

supposed to have heard the objections filed by the landowners  

and other interested persons under Section 5A(1), the State  

Government issued declaration dated 14.12.2007 under Section 6  

of the Act. The award was passed by the Land Acquisition  

Collector on 9.12.2009.

The appellant, who owned 14 kanals 8 marlas land  

situated in the revenue estate of Mouza Para, challenged the

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acquisition of her land in Writ Petition No. 2494/2010. She  

pleaded that in the garb of acquiring land for a public purpose,  

the State Government misused its power under Sections 4 and 6 of  

the Act for the benefit of respondent No.6 M/s. Ujjawal  

Coloniser Pvt. Ltd. of Delhi, who was constructing residential  

colony known as 'Sun City'; that her land should have been  

exempted/released in terms of the policy framed by the State  

Government because she had constructed a house prior to the  

issuance of notification under Section 4(1) of the Act; that she  

has been discriminated inasmuch as land belonging to M/s. Sharad  

Farm and Holdings Pvt. Ltd. had been released vide letter dated  

4.9.2008, but her land was not released and that the acquisition  

proceedings are vitiated due to non-application of mind by the  

functionaries of the State Government and violation of the rules  

of natural justice.  

In the counter affidavit filed by respondent Nos. 1  

and 3, an objection was raised to the maintainability of the  

writ petition on the ground that the same was filed after  

passing of the award. On merits, respondent Nos.1 and 3 did not  

dispute that the appellant's land was surrounded by the land of  

respondent No.6, who was developing residential colony but  

pleaded that the acquisition was for a public purpose i.e.  

development of Sector 36, Rohtak. The plea of discrimination  

raised by the appellant was contested by respondent Nos. 1 and 3  

by asserting that the appellant had not filed objections under  

Section 5A(1).  

The High Court did not decide the appellant's

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challenge to the acquisition of her land and dismissed the writ  

petition solely on the ground that it was filed after passing of  

the award. For arriving at this conclusion, the High Court  

relied upon the judgments of this Court in Municipal Corporation  

of Greater Bombay v. Industrial Development and Investment  

Company (P) Limited (1996) 11 SCC 501, Municipal Council,  

Ahmednagar, v. Shah Hyder Beig (2002) 2 SCC 48, C.Padma v.  

Deputy Secretary to the Government of Tamil Nadu (1997) 2 SCC  

627, Star Wire (India) Ltd. v. State of Haryana (1996) 11 SCC  

698 and M/s. Swaika Properties Pvt. Ltd. v. State of Rajasthan  

JT 2008 (2) SC 280.

We have heard learned counsel for the parties and  

scanned the record. We shall first consider the question whether  

the High Court was right in non-suiting the appellant without  

examining the merits of her challenge to the acquisition  

proceedings. For this purpose, it will be apposite to note that  

in the counter affidavit filed on behalf of respondent Nos.1 and  

3 before the High Court it was nowhere pleaded that possession  

of the appellant’s land and house was taken by the particular  

official / officer on a particular date and was handed over to  

the Estate Officer, HUDA, Rohtak. Not only this, no document was  

produced evidencing dispossession of the appellant. This is the  

reason why the High Court did not record a finding that  

possession of the appellant's land had been taken after passing  

of the award.  

In the counter affidavit filed before this Court,  

respondent Nos. 1 and 3 have, for the first time, averred that

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possession of the acquired land was handed over to Estate  

Officer, HUDA, Rohtak on the date of award and as per official  

assessment report the construction had been raised after the  

issue of notification under Section 4. This statement is  

contained in para 6 of the counter affidavit, which is  

reproduced below:

“6. That the award related to the abovesaid  notification was announced on 9.12.2009 and the  possession was handed over to Estate Officer, HUDA,  Rohtak on the same day. It is relevant to mention  here that as per the official assessment report of  the constructed area regarding the above said  notification the land of the petitioner was vacant  at the time of u/s-4 and the construction has been  raised after the survey and issuance of the  notification u/s-4. However since it is also  subsequent to declaration of the area as controlled  area and the same is without permission and  unauthorized one.”

In the separate counter affidavit filed by Estate  

Officer, HUDA, Rohatak (respondent No.2) before this Court, a  

similar averment has been made albeit without disclosing the  

name of the person who is said to have delivered possession of  

the acquired land to him on the date of the award. Not only  

this, while making that averment in para 5(v) of the counter  

affidavit, the officer has used white fluid to score out  

something recorded after the words “handed over to the answering  

respondent”. By doing so the concerned officer has tried to hide  

the truth from this Court. That apart, what is most surprising  

is that neither before the High Court nor before this Court the  

official respondents have produced any document to show that  

actual or even symbolic possession of the acquired land was  

taken by the particular officer/official and the same was handed

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over to the particular officer of HUDA. Therefore, there is no  

escape from the conclusion that respondent Nos.1 to 3 have  

failed to discharge the onus to prove that after passing of the  

award, possession of the acquired land had been taken and  

delivered to the Estate Officer, HUDA.

In Banda Development Authority, Banda v. Moti Lal  

Agarwal (2011) 5 SCC 394, this Court considered as to what  

should be the mode of taking possession of the land acquired  

under the Act, referred to the judgments in Balwant Narayan  

Bhagde v. M.D. Bhagwat (1976) 1 SCC 700, Balmokand Khatri  

Educational and Industrial Trust v. State of Punjab (1996) 4 SCC  

212 , P.K. Kalburqi v. State of Karnataka (2005) 12 SCC 489,  

NTPC Ltd. v. Mahesh Dutta (2009) 8 SCC 339, Sita Ram Bhandar  

Society v. Govt. of NCT of Delhi (2009) 10 SCC 501, Brij Pal  

Bhargava v. State of UP (2011)5 SCC 413 and culled out the  

following principles:

“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 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.

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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.”

In Prahlad Singh v. Union of India (2011) 5 SCC 386,  

the Court considered as to when the acquired land can be treated  

to have vested in the State, referred to various judgments on  

the issue of taking of possession including the judgment in  

Banda Development Authority, Banda (supra) and observed:

“If the present case is examined in the light of  the facts which have been brought on record and the  principles laid down in the judgment in Banda  Development Authority case it is not possible to  sustain the finding and conclusion recorded by the  High Court that the acquired land had vested in the  State Government because the actual and physical  possession of the acquired land always remained  with the appellants and no evidence has been  produced by the respondents to show that possession  was taken by preparing a panchnama in the presence  of independent witnesses and their signatures were  obtained on the panchnama.”

At the cost of repetition, we consider it necessary to  

observe that in the present case no evidence was produced by the  

official respondents before the High Court to show that  

possession of the appellant's land and the house constructed  

over it had been taken by the competent authority between  

9.12.2009, i.e., the date on which the award was passed and

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20.1.2010, i.e., the date on which the writ petition was filed  

before the High Court. Indeed, it was not even the pleaded case  

of the official respondents that the house constructed by the  

appellant was lying vacant on the date of award and some  

official had put lock over it evidencing the taking over of  

possession.  

A somewhat similar question was considered by this  

Court in Raghbir Singh Sehrawat v. State of Haryana (2012) 1 SCC  

792. In that case also, the High Court had non-suited the writ  

petitioner on the ground that possession of the acquired land  

had been taken by the concerned officers and the same will be  

deemed to have vested in the State Government free from all  

encumbrances. This Court took cognizance of the entries recorded  

in khasra girdawari revealed existence of crops on the acquired  

land and observed:

“The respondents have not produced any other  evidence to show that actual possession of the  land, on which crop was standing, had been taken  after giving notice to the appellant or that he was  present at the site when possession of the acquired  land was delivered to the Senior Manager of HSIIDC.  Indeed, it is not even the case of the respondents  that any independent witness was present at the  time of taking possession of the acquired land.

The Land Acquisition Collector and his subordinates  may claim credit of having acted swiftly inasmuch  as immediately after the pronouncement of the  award, possession of the acquired land of Village  Jatheri is said to have been taken from the  landowners and handed over to the officer of HSIIDC  but keeping in view the fact that crop was standing  on the land, the exercise undertaken by the  respondents showing delivery of possession cannot  but be treated as farce and inconsequential. We  have no doubt that if the High Court had summoned  the relevant records and scrutinised the same, it  would not have summarily dismissed the writ  petition on the premise that possession of the  acquired land had been taken and the same vested in

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the State Government.”

The Court then referred to the judgments in Municipal  

Corporation of Greater Bombay v. Industrial Development and  

Investment Company (P) Limited (supra), Star Wire (India) Ltd.  

v. State of Haryana (supra), C.Padma v. Deputy Secretary to the  

Government of Tamil Nadu (supra), Municipal Council, Ahmednagar,  

v. Shah Hyder Beig (supra) and M/s Swaika Properties Pvt. Ltd.  

v. State of Rajasthan (supra), on which reliance has been placed  

by the High Court and observed:

“In all the cases, challenge to the acquisition  proceedings was negatived primarily on the ground  of delay. An additional factor which influenced  this Court was that physical possession of the  acquired land had been taken by the authorities  concerned. In none of these cases, the landowners  appear to have questioned the legality of the mode  adopted by the authorities concerned for taking  possession of the acquired land. Therefore, these  judgments cannot be relied upon for sustaining the  High Court’s negation of the appellant’s challenge  to the acquisition of his land.”

In view of the above discussion, we hold that the High  

Court was not right in holding that the writ petition of the  

appellant was not maintainable because the same was filed after  

passing of the award.

As a sequel to the aforementioned conclusion, we may  

have set aside the impugned order and remitted the matter to the  

High Court for disposal of the writ petition on merits but  

having carefully gone through the pleadings of the parties and  

the material produced before this Court, we are satisfied that  

the acquisition of the appellant's land is vitiated due to  

colourable exercise of power by the State Government. No doubt,

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the notifications issued under Sections 4 and 6 of the Act  

recite that the land was acquired for a public purpose, namely,  

development of Sector 36, Rohtak, but the real object of the  

acquisition was to benefit a colonizer i.e. respondent No.6, who  

had undertaken to develop the area into a residential colony.  

In para 5 and 6(iv) of the writ petition, the appellant had made  

the following averments:

“5. That it would be worthwhile to point out here  that the land which has been sought to be acquired  vide the impugned notification is surrounded by the  land of Ujjawal Coloniser - respondent No. 6 from  all sides and the residential colony named Sun City  is being developed by the respondent No. 6 and land  situated in the Sun City was also acquired by the  State Government and then it was handed over to  respondent No. 6 who is a well known colonizer and  the respondent No. 6 also approached the petitioner  for selling her land to him and the petitioner  refused to accept the said proposal of the  respondent No. 6 and now the land which the  respondent No. 6 failed to purchased from its  owners has been got acquired for extension of  Section 36, Rohtak with clear understanding that  same would be further handed over to respondent No.  6 after completion of its acquisition and there is  a secret agreement between the State authorities  and respondent No. 6.

6(iv) That the acquisition of land for public  purpose is just an eyewash. In fact, the land is  being acquired for semi-public, commercial purpose  etc. It is also so reflected from the lay out plan  of Section 36 and marked in red. The semi public  purpose is for giving the land to the private  developers cannot be termed as a public purpose in  the real sense and earlier also the land was  acquired for development of Sector 36 in a similar  fashion and after acquisition the same was handed  over to the respondent No. 6 and the land of the  petitioner is surrounded by the land of Sun City by  three sides and cannot be choose for any purpose  except to acquire the same and hand over it to the  respondent No. 6 and the acquisition proceedings  are not meant for public purpose in true sense and  the authorities are bent upon to help the  respondent No. 6 in an illegal and arbitrary  manner.”

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In the counter affidavit filed by Land Acquisition  

Collector, Urban Estates, Haryana, Rohtak on behalf of respondent  

Nos.1 and 3, it was claimed that the procedural requirement  

contained in Sections 4 and 6 of the Act had been fully satisfied  

and reference to Section 17(1) in the declaration issued under  

Section 6 was a mistake and further that no discrimination had  

been practised in acquiring the land. However, it was not denied  

that the appellant's land is surrounded by the land of respondent  

No.6, who was developing residential colony under the name and  

style 'Sun City' and earlier also the land acquired for the  

development of Sector 36, Rohtak was transferred to respondent  

No.6. This shows that in the guise of acquiring land for a public  

purpose, the State Government had acquired the land for being  

handed over to the private coloniser.  In other words, the State  

Government had misused the provisions of Sections 4 and 6 of the  

Act for making land available to a private developer. We may  

hasten to add that if the land was to be acquired for a company,  

then the official respondents were bound to comply with the  

provisions contained in Chapter 7 of the Act, which was  

admittedly not done in the instant case.

We also find merit in the appellant's plea that the  

official respondents are guilty of practising discrimination in  

the matter of release of land. In paragraphs 6(v) and 6(vi) of  

the writ petition the appellant had made the following averments:

“6(v) That the petitioner who is having only small  piece of land/ residential house would be deprived  of the roof and the construction made by the  petitioner is of A Class and has been raised prior  to the issuance of Notification u/s 4 of the Act  i.e. 15.12.2006. Photographs showing construction

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of the House of A Class, is annexed herewith as  Annexure P/5. As per the policy of the State  Government dated 30.9.2007, copy of which is  annexed as Annexure P/6, the structure which have  been constructed prior to the issuance of the  notification u/s 4 and is inhabited could be  released u/s 48(1) of the Act ibid but the  respondents have ignored its own instructions and  for releasing the land the pick and choose policy  has been adopted by the authorities and the land of  M/s Sharad Farm and Holdings Pvt. Ltd. has also  been released arbitrarily after notification u/s 6  of the Act as is reflected from letter dated  4.9.2008, copy of which is annexed as Annexure P/7  and furthermore the constructed house of the  petitioner has been acquired but the vacant land of  some influential person have been left out and the  State Government is not justified in acquiring the  land in question for further handing over the same  to the private developers for commercial gains at  the cost of the life/livelihood of the petitioner  and the impugned notification has not been issued  for a bonafide purpose and is a result of  connivance of the authorities with the respondent  No. 4 to 6 and it is not permissible under law. The  release of land of the petitioner would not create  any hurdle in the scheme of the respondents.

6(vi) That the construction of the house of the  petitioner is prior to the notification u/s 4 of  the Land Acquisition Act. The Land Acquisition  Collector in similar circumstances also recommended  the release of the land and the same was not  included while issuing the notification u/s 6 of  the Land Acquisition Act and it has been  incorporated while issuing notices u/s 9 of the Act  ibid, copy of recommendations of the L.A.C is  attached herewith as Annexure P/8. There is, thus,  a total non-application of mind. According to the  notification u/s 6 ibid Killa No. 23(7-12) is  stated to have been acquired but while in the  notice under Section 9 of the Act ibid whole of the  area has been shown to have been acquired. Even the  recommendations of the L.A.C. for release of the  constructed area has also been ignored without any  basis.”

In the counter affidavit filed on behalf of respondent  

Nos.1 and 3, the above reproduced averments were not denied.  

This is evinced from paragraphs 6(v) and 6(vi) of the counter  

affidavit, which are extracted below:

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“6(v). That the contents of Para no. 6(v) of the  civil writ Petition are wrong and denied. However,  the state Govt, has absolute right to acquire the  land for public purpose and the disputed land is  also being acquired for serving public purpose  i.e. Sector-36 Rohtak. However petitioner has  never filed the objection regarding his house.  

6(vi). That the contents of para no. 6(vi) of the  civil writ petition are wrong and denied. However,  it is submitted that there exists a public purpose  for which the land has been acquired and there is  no illegality or infirmity in the decision of the  state. No discrimination has been done with any of  the land owners.”

Before this Court it has been pleaded that on the date  

of issuance of preliminary notification the appellant's land was  

vacant, but, this statement cannot be relied upon for denying  

relief to her because no such averment was made in the counter  

affidavit filed before the High Court. The policy framed by the  

Government of Haryana clearly stipulates release of land on which  

construction had been raised prior to Section 4 notification. The  

appellant's case is covered by that policy. Therefore, her land  

ought to have been released as was done in the case of M/s.  

Sharad Farm and Holdings Pvt. Ltd.

In the result, the appeal is allowed and the impugned  

order is set aside. The acquisition of the appellant's land is  

declared illegal and is quashed. The parties are left to bear  

their own costs.

.............................J, [G.S. SINGHVI]

.............................J, [SUDHANSU JYOTI MUKHOPADHAYA]

New Delhi,

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29th August, 2012.