Hon'ble Vivek Kumar Birla,J.
(Delivered by Hon'ble Vivek Kumar Birla,J.) Heard Sri U.N. Sharma learned Senior Advocate assisted by Sri Uma Nath Pandey, Advocate for the petitioners, Sri Shivam Yadav for the NOIDA Authority and the learned Standing Counsel appearing for the respondent nos. 1 and 2.
The present petition has been filed challenging the Notification dated 6.1.1992 issued under Section 4 and the Notification dated 22.9.1992 issued under Section 6 of the Land Acquisition Act, 1894 with regard to certain khasra situated at Village Hazipur Pargana and Tehsil Dadri District Gautambudhnagar on the ground that the acquisition has lapsed under Section 24 (2) of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as 2013 Act).
A further prayer has been made that the respondents be directed to correct the revenue records scoring out name of the NOIDA Authority over the plots in dispute and restore the name of the petitioners. A further prayer has been made that any third party interest shall not be created over the land in dispute.
The facts as narrated in the writ petition are that in the years 1989 to 1991, the petitioners have purchased the plots in dispute from their original tenure holders by registered sale deeds. Subsequently, the notification under Sections 4 and 6 of the 1894 Act were issued on 6.1.1992 and 22.9.1992 respectively and as per paragraph 10 of the petition, according to documentary position the possession was also taken on 18.3.1994, although the petitioners claim that the possession was symbolic in nature.
For the disposal of the present petition, further necessary facts at present are that the petitioners have made prayer for exempting the land on the ground that it was abadi land and that representation was rejected vide order dated 12.11.2003 by the Chief Executive Officer, NOIDA, which is Annexure 10 to the petition. Aforesaid rejection of the order dated 12.11.2003 was challenged by the petitioners before this Court by means of Writ Petition No. 5702 of 2004, which was dismissed vide order dated 16.2.2014, copy whereof is on record as Annexure 11 to the writ petition.
In the aforesaid judgment it has been clearly mentioned that in the impugned order dated 12.11.2003 passed by the Chief Executive Officer, NOIDA, it was clearly recorded that the possession has been taken over by NOIDA Authority on 18.3.1994 and the land has been used for the purpose of development scheme of Sector 48. It has further been recorded that the petitioners have nothing to do with the land in dispute and the petitioners are not agriculturists in the village before the acquisition. The land was recorded in the revenue record in the name of the agriculturists. It was held that these are the finding of facts and cannot be interfered within the writ jurisdiction. On this ground the writ petition challenging the order dated 12.11.2003, which is Annexure 10 to the writ petition was dismissed by this Court. The relevant paragraph of the judgment dated 16.2.2004 passed by this Court in Writ Petition No. 5702 of 2004 (Nalini Associates and another Vs. State of U.P. and others) is quoted hereinunder:-
"Moreover, in this case the petitioner's exemption applications already been considered in great detail by NOIDA vide impugned order dated 12.11.2003. The finding recorded in the impunged order are that possession has been taken by NOIDA on 18.3.1994. The land in question is at the entire of section 48 which has been used by NOIDA for development schemes. The petitioner has nothing to do with the land in dispute. The petitioner is not an agriculturist in the village and before acquisition the land was recorded in the revenue records in the name of the agriculturist there are findings of fact and we cannot interfere in writ jurisdiction.
For the reasons given above this writ petition is dismissed interim orders stands are vacated."
In view of the aforesaid, there in nothing on record to demonstrate that this judgment dated 16.2.2004 was challenged any further by the petitioners and as such the same has become final in so far as the possession having been taken over by the NOIDA Authority is concerned.
The contention of Sri U.N. Sharma learned Senior Advocate was that under Section 24 (2) of the 2013 Act two conditions are required to be fulfilled to sustain the acquisition under the 1894 Act. He submits that in the absence thereof the entire land acquisition stands lapsed in view of Section 24 (2) of the 2013 Act.
For this purpose, he has placed reliance on a judgment of the Apex Court in the case of Pune Municipal Corporation and another Vs. Harakchand Misirimal Solanki and others reported in 2014 (3) SCC page 183 and the subsequent judgments of the Apex Court in the case of Union of India and others Vs. Shivraj and others reported in 2014 (6) SCC page 564 and in the case of Bharat Kumar Vs. State of Haryana reported in 2014 (6) SCC page 586.
Sri U.N. Sharma therefore has placed on reliance of paragraphs 11, 19 and 21 of the judgment in Pune Municipal Corporation (Supra) which is quoted hereinunder:-
"11. Section 24(2) also begins with non obstante clause. This provision has overriding effect over Section 24 (1). Section 24 (2) enacts that in relation to the land acquisition proceedings initiated under 1894 Act, where an award has been made five years or more prior to the commencement of the 2013 Act and either of the two contingencies is satisfied, viz; (i) physicial possession of the land has not been taken or (ii) the compensation has not been paid, such acquisition proceedings shall be deemed to have lapsed. On the lapse of such acquisition proceedings, if the appropriate government still chooses to acquire the land which was the subject matter of acquisition under the 1894 ACt then it has to initiate the proceedings afresh under the 2013 Act, The proviso appended to Section 24 (2) deals with a situation where in respect of the acquisition initiated under the 1894 Act 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 then all the beneficiaries specified in Section 4 notification become entitled to compensation under 2013 Act."
19.Now, this is admitted position that award was made on 31.01.2008. Notices were issued to the landowners to receive the compensation and since they did not receive the compensation, the amount Rs.27 crores) was deposited in the government treasury. Can it be said that deposit of the amount of compensation in the government treasury is equivalent to the amount of compensation paid to the landowners/persons interested? We do not think so. In a comparatively recent decision, this Court in Agnelo Santimano Fernandes[2], relying upon the earlier decision in Prem Nath Kapur[3], has held that the deposit of the amount of the compensation in the state's revenue account is of no avail and the liability of the state to pay interest subsists till the amount has not been deposited in court.
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 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 commencement of 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."
It is necessary to consider the language of Section 24 of the 2013 Act, which is quoted hereinunder:-
"Land acquisition process under Act No. 1 of 1894 shall be deemed to have lapsed in certain cases.- (1) Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894),-
(a) where no award under section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; or
(b) where an award under said section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed.
(2) Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894), 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 where 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, then, all beneficiaries specified in the notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act."
Sri Sharma contends that both the conditions regarding physical possession over the land having been taken over and compensation having not been paid, are liable to be satisfied to sustain the acquisition. He submits that if only one condition is satisfied the acquisition would lapse.
A perusal of the aforesaid judgment clearly discloses that the emphasis under the aforesaid judgment was with regard to payment of compensation and the mode of payment of compensation or as to what action can be treated to be "paid", "offered", or "tendered" and it was held by the Apex Court in paragraph 20 that the deposit of compensation of amount in Government and as of no avail and cannot be held to be equivalent to compensation paid to the land owners and persons interested.
In the case of Union of India Vs. Shivraj (Supra) the Apex Court considered the aforesaid paragraphs 11, 19 and 21 of the judgment in Pune Municipal Corporation (Supra) in its paragraph 26 expressed its opinion as under:-
"26. The Objects and Reasons of the 2013 Act and particularly Clause 18 thereof fortify the view taken by this Court in the judgments referred to hereinabove. Clause 18 thereof reads as under:-
"18. The benefits under the new law would be available in all the cases of land acquisition under the Land Acquisition Act, 1894 where award has not been made or possession of land has not been taken."
Much emphasis on the word 'or' has been given and it appears that in case the possession has been taken over, it would save the acquisition.
In the case of Union of India Vs. Shivraj (Supra) the question of possession was in serious dispute and a finding was recorded that due to interim orders granted in favour of the petitioner during the pendency of the writ petition as well as the review application before the High Court the possession was not taken over by the State Authorities and during the pendency of the civil appeal pending before the Apex Court inspite of the fact that no interim order was granted, the respondents did not take possession of the land in dispute though the award had been in the year 1987-88 and the writ petition was decided against the appellants by the Delhi High Court in the year 2007.
Under these circumstances, it was held that the acquisition proceedings have lapsed.
In the present case, much emphasis has been placed by Sri U.N. Sharma on the question of physical possession being with the petitioners. For this purpose, photographs showing open piece of land have also been annexed to the petition.
In so far as this contention is concerned, we have also noticed that the finding, regarding possession having been taken over by the NOIDA Authority on 18.3.1994 as recorded in the order dated 12.11.2003 passed by the Chief Executive Officer, NOIDA, has been confirmed by this Court in its judgment dated 16.1.2004 passed in Writ Petition No. 5702 of 2004 filed by the present petitioners itself. Therefore, apparently, it is not open for the petitioners to go beyond the same and urge that the physical possession is still with the petitioners.
At this stage, Sri Shivam Yadav appearing for the respondent-NOIDA Authority has placed reliance on the judgment passed by a Division Bench of this Court in the case of Keshram Singh and another Vs. State of U.P. and others reported in 2014 (3) ADJ page 619 to contend that as per Section 24 (2) of the 2013 Act only one condition is required to be fulfilled that is either the physical possession of the land has not been taken over or the compensation has not been paid. He submits that in case if the physical possession of the land has been taken over, the acquisition proceedings would not lapse even though the compensation may not have been paid or tendered as held by the Apex Court in the case of Pune Municipal Corporation (Supra).
For this purpose, he has placed reliance on paragraphs 13, 14, 21 and 28 which are quoted hereinuder:-
"13. Section 24 (1) of the Act, 2013 provides that when the land acquisition proceedings have been initiated under the Act, 1894 and where no award under Section 11 of the said Act has been made, then all provisions of the Act, 2013 relating to the determination of compensation shall apply. It further provides that where an award under Section 11 of the Act has been made, then such proceedings shall continue under the provisions of the Act, 1894 as the Act, 2013 has not been repealed. Sub-section (2) of Section 24 of the Act, 2013 begins with non-obstante clause. For applicability of sub-section (2) of Section 24 of the Act, 2013 following are the conditions provided:
(1)Where an award under Section 11 of the Act, 1894 has been made five years or more prior to the commencement of the Act, 2013 and ;
(a) The physical possession of the land has not been taken or,
(b) the compensation has not been paid.
14. On fulfillment of the above conditions, it shall be deemed that land acquisition proceedings have lapsed. Sub-section (2) of Section 24 of the Act, 2013 creates a legal fiction which comes into existence on fulfillment of certain factual conditions.
21.The acquisition thus shall be deemed to have lapsed only when the physical possession of the land has not been taken nor the compensation has been paid on the date i.e. 01/1/2014 when the Act, 2013 was enforced. On existence of the above-mentioned facts, the legal fiction shall come into play lapsing the acquisition on the date of enforcement of the Act, 2013. One more aspect which needs to be noted is that sub-section (2) of Section 24 of the Act, 2013 uses the words "physical possession". The word "physical possession" means personal and immediate possession. "Physical possession" has been defined in P. Ramanatha Aiyar's The law Lexicon 3rd Edition 2012 at Page 1355 which is quoted below:
"Physical possession" In Art.10, Sch. II of the Limitation Act (36 of 1963) "physical possession" means "personal and immediate possession." 3 Bom LR 707 (PC):24 All 17:5 CWN 888:28 IA 248. See also 1 All 311."
28.The Apex Court had occasion to consider the mode and manner of taking possession of the acquired land under the Act, 1894, in a recent judgment in Raghbir Singh Sehrawat Vs. State of Haryana & Ors, (2012) 1 SCC 792. The Apex Court in the said case noted earlier judgments on the subject and after noticing the relevant judgments following was laid down in paragraphs 25, 26 and 27:
"25. The legality of the mode and manner of taking possession of the acquired land has been considered in a number of cases. In Balwant Narayan Bhagde v. M. D. Bhagwat (1976) 1 SCC 700, Untwalia, J. referred to provisions of Order 21 Rules 35, 36, 95 and 96 of the Code of Civil Procedure and opined that delivery of symbolic possession should be construed as delivery of actual possession of the right, title and interest of the judgment-debtor. His Lordship 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: (SCC pp.710-11, para 25) "25.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(1) it vests absolutely in the Government free from all encumbrances. 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."
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 v. M. D. Bhagwat (1976) 1 SCC 700, 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. 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 Tahsildar 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 Tahsildar, 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."
27. In Banda Development Authority v. Moti Lal Agarwal and others (2011) 5 SCC 394, the Court referred to the judgments in Balwant Narayan Bhagde v. M. D. Bhagwat (supra), 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 (supra), Sita Ram Bhandar Society v. Govt. (NCT of Delhi) (2009) 10 SCC 501 and culled out the following propositions: (Banda Development Authority (2011) 5 SCC 394, SCC p.411, para 37) " (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 State authority concerned 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 authority concerned will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the authority concerned 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(3-A) 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."
On the strength of the above, he submits that the possession has to be a lawful possession and the petitioners should have to a right to remain in possession.
He further submits that coupled with the fact that Writ Petition No. 5702 of 2004 filed by the petitioners having already been dismissed by this Court wherein the finding of fact recording actual possession having been taken over by the NOIDA Authority becoming final, it is no longer open to the petitioners to challenge the same.
Sri U.N. Sharma has placed reliance on a question-answer taken from the concerned authority, which is Annexure 20 to the writ petition, to demonstrate that the payment with regard to the plots in dispute was deposited in R.D. and has not been paid to the petitioners.
The submission of Sri Sharma is that it is sufficient to proof that the compensation has not been paid to the petitioners and the deposit in R.D. cannot be treated as valid tender of payment to the petitioners as held by the Hon'ble Apex Court in Pune Municipal Corporation (Supra) and the same should have been deposited in Court in view of the provisions of Section 31 of the 1894 Act.
In view of the judgments of the Apex Court and of this Court and on giving a serious consideration over the language and interpretation of Section 24 (2) of the 2013 Act and also in view of paragraph 21 of the judgment in the case of Pune Municipal Corporation (Supra) wherein it has been observed that the acquisition proceedings under challenge in that case are deemed to have lapsed where award has been made for 5 years or more prior to the commencement of 2013 Act and possession of the land is not taken or compensation has not been paid, we are prima facie of the opinion that it is only either of the condition is required to be fulfilled to save acquisition. In other words, if the physical possession has been taken over, the acquisition is saved under the 1894 Act or if the compensation has been paid, the acquisition is saved under the 1894 Act.
However, in view of the aforesaid discussions, we are of the opinion that the respondent authorities may be called upon to file a counter affidavit in the present case before any final opinion is formed.
All the respondents are granted one month time to file their counter affidavit. Rejoinder affidavit may be filed within two week thereafter.
List thereafter.
Order Date :- 19.9.2014 Lalit Shukla