This is a defendant's second appeal arising out of suit filed by plaintiffs-respondents for injunction restraining defendant-appellant from interfering in possession as well as land should be treated to be out of land acquisition proceeding of property mentioned in the plaint in Schedule-A shown as Bhoomi No.1, Rakba 0-8-15-0, No.127 Rakba 0-14-0 No.128 Rakba 2-19-0, No.39 Rakba 1-2-10 A No.40 Rakba 1-40-0, No.41 Rakba 1-3-0. It was further stated in the plaint that property mentioned in Schedule-A and on the basis of notification issued by respondent No.2 for the purposes of development by defendant No.1 in 1977-78 but the District Magistrate up-till-date has not given any award and disputed land has not been acquired and possession has never been taken. Plaintiffs are in possession of said property being fact that there are various constructions. If award has not been given within a period of three years from the date of notification, it itself became free from proceeding. Further according to policy of the State Government, land in village Nagla Charandas, up to 240 ft. from Abadi is being exempted from acquisition. As defendant No.1 started interfering, hence occasion arose for filing present suit.
Defendants filed their written statement denying claim and accepted in Para 20-Ka regarding allegation of paragraph-1 of plaint relating to award but their allegations have been denied and stated that said land has been acquired and after the gazette notification, possession has been taken. Therefore, plaintiff has got no right in the property in dispute and suit is barred by Sections 18 and 52 of the Land Acquisition Act and as proper notice under Section 80 of the Act has not been given, therefore, suit cannot proceed.
Trial court framed various issues and one of the issues was (a) whether plaintiffs are owner in possession of the property (b) whether disputed land has been acquired and possession has been taken and if that is so what will be the effect. (c ) Whether the Court has jurisdiction to hear such matter and (d) whether suit is barred by Sections 18 and 52 of the Land Acquisition Act as well as (e) Whether suit is barred by Sections 34 and 41 of the Specific Relief Act as well as in view of allegations made in paragraph 3 (a) of the plaint, property in dispute has become out of land acquisition proceeding.
Trial court after considering the issue of the parties has recorded a finding that this property has been acquired for the purposes of development in favour of defendant-appellant on the basis of publication on 12.1.1977 under Sections 4 & 6 of the Land Acquisition Act. Paper No.Ka-4 also shows that Tehsildar Dadri on behalf of Collector has given a certificate of possession in favour of defendant No.1 on the basis of placing reliance upon a case reported in 1988 AWC, 450, findings have been recorded that Tehsildar or the nominee of the Collector went on spot and proclaimed to have obtained possession, may be a symbolic own, so far as the tenants, sub-tenants or licensees are concerned, that would constitute a sufficient act of taking possession on the spot within the meaning of Section 16 of the Act. After recording such finding, finding has been recorded that in view of statement of PW-1, Rajendra and PW-2 that they have admitted that property in dispute has been acquired, therefore, it can be inferred that possession has also been taken. An amendment application was filed on behalf of plaintiff stating therein that in 1982, State Government has made a policy to the effect that land which is being acquired in village Nagla Charandas, if there is an old Abadi, about 240 ft. land around will be left for the purposes of development of villages. A finding has also been recorded that this fact has never been disputed by defendants and this fact has been confirmed by Sri Kamal Kishore in his statement dated 20.2.1993 and according to him, map submitted shows that there is an old Char-dewari and old house have been found near the Abadi. It was also pleaded on behalf of plaintiff that in view of Section 11-A of the Act, if the award has not been given within a period of two years from the date of declaration, entire proceeding of acquisition of the land shall lapse. On this issue a finding has been recorded that Section 11-A has been inserted under the Act No.68/84 under Section 9. As regards allegation regarding not giving an award within a period of two years, defendant has stated that "it is a matter connected to defendant No.2." Admittedly, State in spite of notice has not contested the proceeding. In such circumstances, court below has recorded a finding that admittedly, after Acquisition of 1977-78, no award has been given up to 1984 and after insertion of Section 11-A, if award has not been given within a period of two years, which was necessary, proceeding will come to an end. Finding has been recorded that no document regarding publishing an award has been given. Even DW-1 Sri Rajendra Kumar, Lekhpal has not stated anything before the Court.
In such circumstances, court below has recorded a finding that in view of Government policy, land situated in the vicinity of 200 fts. of the village will be exempted and no award has been given, therefore, according to Section 11-A, acquisition of the land shall lapse and therefore, in view of paras 3 and 3-A of the allegation made in the plaint, disputed land will come out with acquisition proceeding.
As regards objection on behalf of defendant-appellant that suit itself is not maintainable, a finding has been recorded that acquisition proceeding has not been challenged. Admittedly, proceeding under Section 6 of land Acquisition Act, 1984, this Court will have no jurisdiction. Plaintiffs have admitted this fact that they are not challenging the said proceeding. They have filed a suit on the ground that in view of Section 11-A, total proceeding is vitiated in view of fact that after amendment of 1984, within a period of two years i.e. up to 1986, no award has been given, therefore, according to Section 11-A, proceeding is lapsed. After recording such finding, trial court has said that, in such circumstances, Court has jurisdiction to hear claim and has decreed suit vide its judgement and order dated 30th March, 1996. Defendant's aggrieved by aforesaid decree filed an appeal. Appeal has also been dismissed after confirming the finding recorded by trial court vide its judgement and order dated 22.3.2005. Hence, present second appeal has been filed by appellant-authority.
Counsel for Development Authority has submitted before the court that Section 11-A of the Act will not be applicable in view of provision of Section 17(1) of the Act which is an urgency clause and as soon as urgency clause is invoked, then presumption is that possession has been taken and if possession has already been taken, Section 11-A will not come in play and admittedly from record, it is clear that possession has been taken and finding to that effect has been recorded by trial court. He submits that notification under Section 6 was issued on 12.1.1977 and on 11.7.1977 possession was taken and award was given on 3.7.1978 which is apparent from the record. Further submission has been made that Appellate Authority on an appeal filed by appellant cannot upset a finding of trial court which was not in favour of plaintiff-respondent. As regards finding of possession, finding has been recorded that possession has been taken. Therefore, Appellate Authority on an appeal filed by appellant has got no power and jurisdiction to upset such finding and holding that possession was not taken. DW-1 Sri Raj Kumar, Lekhpal has stated before the Court on oath that possession has been taken. Further DW-1 Sri Rajendra Misra has also admitted that award was given.
Further submission has been made that finding of fact regarding possession by trial court cannot be touched by the Appellate Court when plaintiffs-respondents have never challenged the finding recorded by the trial court regarding possession. Therefore, court below was having no jurisdiction to record a finding regarding possession of plaintiffs-respondents that possession was never taken after acquisition.
Learned counsel for appellant has submitted that Section 11-A of the Act will not be applicable in view of fact that Urgency Clause was invoked. He has placed reliance upon a possession certificate dated 12.1.1977 signed by Tehsildar and the Noida Authority that possession of said land has been taken. He has placed reliance upon a judgement of the Apex Court reported in (1993) 4 Supreme Court Cases, 369 Satendra Prasad Jain and others Vs. State of U.P. and others and has placed reliance upon para 14 and 15 of the judgement. The same are being quoted below:-
"14. There are two judgments of this Court which we must note. In Rajasthan Housing Board v. Shri Kishan, (1993) 2 SCC 84 : (1993. AIR SCW 1163), it was held that Government could not withdraw from acquisition under Section 48 once it had taken possession of the land. In Lt. Governor of Himachal Pradesh v. Avinash Sharma, (1971) 1 SCR 413 : (AIR 1970 SC 1576), it was held that "after possession has been taken pursuant to a notification under Section 17(1) the land is vested in the Government and the notification cannot be cancelled under Section 21 of the General Clauses Act, nor can the notification be withdrawn in exercise of the powers under Section 48 of the Land Acquisition Act. Any other view would enable the State Government to circumvent the specific provision by relying upon a general power. When possession of the land is. taken under Section 17(1), the land vests in the Government. There is no provision by which land statutorily vested in the Government reverts to the original owner by mere cancellation of the notification."
15. 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 land owner 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 and there is no provision in the said Act by which land statutorily vested in the Government can revert to the owner."
Another judgement relied upon by learned counsel for appellant is Rajasthan Housing Board and others Vs. Shri Kishan and others reported in (1993) 2 Supreme Court Cases, 84.
He has also placed reliance upon the Apex Court judgement reported in (2005) 12 Supreme Court Cases, 489 P.K.Kalburqi Vs. State of Karnataka and others. Taking support of aforesaid judgement, learned counsel for appellant submits that taking possession of land means symbolic possession. There can be no hard and fast rule laying down what act would be sufficient to constitute taking of possession of land. Relevant para is 6 that is being quoted below:-
"6. Moreover, the Hon'ble Minister who passed the order of denotification of the lands in question sought to make a distinction between symbolic possession and actual possession and proceed to pass the order on the basis of his understanding of the law that symbolic possession did not amount to actual possession, and that the power to withdraw from the acquisition could be exercised at any time before " actual possession" was taken. This view appears to be contrary to the majority decision of this Court in Balwant Narayan Bhagde v. M.D. Bhagwat, wherein this Court observed that how such possession would be taken would depend on the nature of the land. Such possession would have to be taken as the nature of the land admits of. There can be no hard-and-fast rule laying down what act would be sufficient to constitute taking of possession of land. In the instant case the lands of which possession was sought to be taken were unoccupied, in the sense that there was no crop or structure standing thereon. In such a case only symbolic possession could be taken, and as was pointed out by this Court in the aforesaid decision, such possession would amount to vesting the land in the Government. Moreover, four acres and odd belonging to the appellant was a part of the larger areas of 118 acres notified for acquisition. We are, therefore, satisfied that the High Court has not committed any error in holding that possession of the land was taken on 6.11.1985. Even the order of the Minister on which considerable reliance has been placed by the appellant indicates that possession of the lands was taken, though symbolic."
Taking support of aforesaid judgements learned counsel for appellant states finding recorded by court below is based on no evidence and suit itself was not maintainable before civil court in view of settled principle of law that in such proceeding civil court will have no jurisdiction to see or judge the validity of acquisition proceeding under the Land Acquisition Act. View taken by courts below that award has not been given, therefore, total proceeding of acquisition will be treated to be null and void, though it was proved on behalf of appellant that award was given, therefore, in such circumstances, civil court will have no jurisdiction. Taking contrary view by courts below is a nullity, therefore, present appeal is liable to be allowed.
On behalf of respondents, it was submitted that from the record it was proved that it was not a land, it was a constructed portion and therefore, it should not be acquired under the Land Acquisition Act. Taking support of Section 11-A if award has not been given within a period of two years in view of Section 11-A of the Act, in that circumstances, total proceeding of acquisition will lapse. Admittedly, no award was filed before the courts below. This has been filed before this Court but that cannot be taken into consideration in the present appeal. Submission has been made that total area notified under section 4 (1) of the Land Acquisition Act was 76.921 acres on 11.1.1977. From perusal of notification under Section 17(1) (1-ka), area mentioned was also 76.921 acres, though probable date has been mentioned for publication of award as 3.7.1978 but no award was filed. From perusal of said notification a mention is made that after issuance of notification under Section 17(1), possession of property on 11.7.1977 was taken only 66.172 acres. It is also apparent that rest of the land i.e. 10.749 area has been left from the proceeding and a letter to that effect for cancelling acquisition of said property has been sent to State Government by letter dated 20.12.1977. Admittedly, this area is in dispute in view of fact that there were certain constructions of plaintiff-respondent, therefore, said land has been left and matter was referred to the State Government. Admittedly, State Government has not contested the case in spite of notice. It has also been submitted that dispute between the parties is regarding Schedule-A property. There is no dispute regarding Schedule-B property. If according to defendant any award was given that was never filed before the Court and it has only been filed before this Court, that too without permission.
It has also been submitted that possession of property was never taken which is apparent from statement made by DW-1 and statement of Amin because he has admitted that no possession has been taken in his presence because he was posted at Nagla Charandas in 1986. He has submitted before the Court that record shows that possession has been taken. As regards possession, learned counsel for respondents submits that Appellate Court has send a commission to verify the nature of the property. Report has been given that the disputed plot which is shown as a, b, c, d, e, eh and ag, there are pakka boundary walls and two gates of iron are fixed and there are certain constructions. The said report has been accepted and was formed part of the record.
One of the submission made by counsel for respondent that there was a Government Order to this effect that 240 meters of the land will not be acquired near Abadi of village. He has placed reliance upon a letter of land Acquisition Officer dated 7th April, 1982 which was also form part of record as 70-Ga. From aforesaid letter it also appears that possession has not been taken.
Sri M.D.Singh 'Shekhar' learned Senior Advocate submits that there is a procedure provided for taking possession and if possession has not been taken according to that, proceeding will lapse in view of Section 11-A of the Land Acquisition Act and proper discussion has been made by the Appellate Court in paras 18, 19 and 20 of the judgement. Finding has also been recorded that Paper No.23-Ga filed on behalf of defendant-appellant is not in accordance with the procedure provided, therefore, there is a presumption that no possession has been taken. If symbolic possession has been taken that cannot be said in view of provision of law that possession has been taken. In view of Para 337 of the Revenue Manual there is a procedure prescribed that how possession will be taken. From perusal of possession memo, it is signed by only Tehsildar Dadri and one representative of the Noida Authority. Courts below have discussed the issue and has recorded a finding that possession has not been taken before expiry of two years, therefore, Section 11-A will be attractive. He has placed reliance upon a judgement of the Apex Court reported in 1998- AIR Supreme Court, 2504 Om Prakash Vs. State of Uttar Pradesh and has placed reliance upon para 31 of the judgement. Relevant portion is being quoted below:-
"Our attention was also invited to Possession Certificate at page 202 which mentions that for the lands detailed in the Certificate, possession should be given to the Tehsildar/Administrative Officer, NOIDA on 30th March 1992. Number of lands are listed totalling to 492.91 acres wherein appellants' khasra numbers are also mentioned. It is difficult to appreciate as to how the possession certificate for all these numbers of lands would necessarily include actual taking over of number of lands on which there were constructions on the spot at the relevant time. It is also pertinent to note that the Possession Certificate is dated 30th March 1992 and the High Court of Allahabad granted status quo order on the next day, i.e., 31st March 1992. It, therefore, appears to us that so far as the appellants' lands are concerned, only an effort was made to take paper possession on 30th March, 1992 and actual possession does not seem to have been taken. No possession receipt signed by any of the appellants could be produced to substantiate that contention. Not only that, as noted earlier, the evidence on record showed that even pending the writ petition, the Site Inspection Report of 11th March 1996 showed that some of the lands in question were actually occupied by residents and the lands were constructed upon and factory was being run. Consequently, it is not possible to agree with the submission of learned senior counsel for the respondents that the possession of the acquired lands belonging to the appellants was actually taken on the spot on 30th March, 1992. It is not in dispute that status quo order granted by the High Court continued all throughout till the dismissal of the Writ Petition. It was then contended that, before this Court could grant any interim relief, possession appeared to have been taken of these lands at least on 18th November 1995. Our attention was invited to the authority letter written by one Shri Chandra Pal Singh, Additional District Magistrate, Land Acquisition, NOIDA, Ghaziabad that possession should be given on 18th November, 1995. It is obviously after the decision of the High Court dated 24th August, 1995. However, it must be noted that this Court by order dated 29th September, 1995 had already granted ad interim stay limited to the extent that any existing construction should not be demolished without leave of the Court and that order has continued all throughout till the hearing of the present appeals. It is, therefore, difficult to appreciate as to how despite the order of this Court, possession of the present appellants' lands could have been taken on 18th November, 1995. However, Shri Mohta, learned senior counsel for NOIDA submitted that this Court order was only not to demolish the construction and has nothing to do with taking possession. It is difficult to appreciate this submission. If the construction on the disputed lands under acquisition were not to be disturbed, how it could be contended that still the possession of the constructions was with NOIDA and that they would not demolish the construction having taken their possession. Even that apart, the authority letter dated 18th November, 1995 itself shows the details of lands possession of which was given to NOIDA and the land of Survey No. 488 is not one of them. For all these reasons, therefore, it must be held that possession of the lands under acquisition belonging to the present appellants has remained with the appellants till date. Once that conclusion is reached, Section 48 sub-section (1) can be legitimately invoked by the appellants for consideration of the State authorities. It is, of course, true that the said provision gives liberty to the State to withdraw from acquisition of any land but if the appellants are in a position to convince the State authorities that their lands were having abadi on the date on which Section 4 notification was issued on 5th January, 1991 and it was that abadi which had continued without any additional construction thereon till the date of Section 6 notification and thereafter and such abadi was squarely covered by the State policy of not acquiring lands having abadi, then it will be open to the State authorities to pass appropriate orders for withdrawing such lands from acquisition and give appropriate relief to the applicants concerned. We, therefore, grant liberty to the appellants, if so advised, to file written representations before appropriate authorities of the State of Uttar Pradesh invoking State Government's power under Section 48, sub-section (1) of the Act. It is made clear that we express no opinion on the question whether the appellants' lands had such abadi on the date of Section 4 notification which would attract the State policy of not acquiring such lands and whether such policy had continued thereafter at the stage of Section 6 notification of 7th January, 1992 and whether such policy is still current and operative at the time when the appellants' representations come up for consideration of appropriate authorities of the State Government. It will be for the State authorities to take their informed decision in this connection. We may not be understood to have stated anything on this aspect, nor are we suggesting that the State must release these lands from acquisition if the State authorities are not satisfied about the merits of the representations. The State authorities will have to be satisfied on the following aspects in this connection :
(i) Whether there was any abadi on the acquired lands at the time of Section 4(1) notification;
(ii) Whether such abadi was a legally permissible abadi;
(iii) Whether such abadi has continued to exist till the date of representation;
(iv) Whether such abadi was covered by any Government policy in force at the time of issuance of Section 4(1) notification and/or Section 6 notification for not acquiring lands having such abadi;
(v) Whether such Government policy has continued to be in force till the date of representation."
Another judgement relied upon by learned counsel for appellant is 1999 CCC-2, 344 Sushil Kumar Vs. State of U.P. and has placed reliance upon paras 6 and 8 of the said judgement. The same is being quoted below:-
"6. The next arguments advanced by learned counsel for 'mandi Samiti' which arise for consideration is, whether after taking over of possession the land vests in Mandi Samiti and, therefore, even if award was not given within two years of the declaration under Section 6 yet 'mandi Samiti' cannot be asked to restore back possession. The argument is that the possession was delivered to 'mandi Samiti' on 22.8.1998 in exercise of power under Section 17(1) and, therefore, despite Section 11-A being there, the acquisition proceedings have come to an end and petitioners are entitled for compensation alone under the act but no relief can be given to petitioners in this petition. The learned Counsel for petitioners has relied on the case of Satendra Prasad Jain (supra), and Awadh Bihari Yadav and Ors. v. State of Bihar. The two cases are distinguishable. Had possession been taken over before expiry of said period of two years then Section 17 (1) would have applied and there could be no illegality as possession would have been taken on the strength of declaration made under Section 6, before it could lapse. In that case Section 11-A would not have attracted to make the declaration inoperative. But, in this case, as the possession was not taken over before expiry of two years, therefore, Section 11-A is attracted. The effect of it is that acquisition proceeding lapsed by operation of law and the notifications under sections 4(1) and 6 of the act became non-existing. Under these circumstances if the 'mandi Samiti' is still allowed to retain possession then the true owners will stand deprived of their land without authority of law and the retention of possession by 'mandi Samiti' will be contrary to law.
8. The learned Counsel for petitioner has pointed out another good reason for restoring back possession. The learned Counsel for petitioners argued that even if the delivery of possession relied upon by the 'mandi Samiti' is accepted then this court may not take notice of it as the 'dakhalnama' has not been executed in accordance with law. According to him the law requires it to be signed by two witnesses, which legal requirement was not complied as it has not been signed by even a single witness and, therefore, even the delivery of possession set up by petitioner is no delivery of possession in eye of law. We have examined 'dakhalnama', a copy of which has been filed by 'mandi Samiti'. It does not bear signature of any witness before whom said possession could be said to have been delivered. It is normal mode in executing document while delivering possession under law and, therefore, even 'dakhalnama' in question cannot be considered to have been executed in accordance with law. In any case, if the State Government still considers that acquisition of same land is essential for construction of 'mandi', it can still acquire it. There is no fetter on its power."
Further reliance has been placed upon a Division Bench judgement of this Court in Writ Petition No.57875 of 2007 Anil Kumar Vs. State of U.P. in which this Court after considering various judgements of the Apex Court has held that in order to dispossess the persons interested positive action has to be taken by the Collector or his nominee on the spot after giving notice to the said persons interested. Admittedly, from the record it does not appear that any steps in accordance with law has been taken after giving notice as provided on that particular date i.e. on 4.7.1977 to take possession. It is settled in law that if possession has not been taken within a period of two years, according to Section 11-A entire acquisition proceeding will lapse.
Learned counsel for respondents has also placed reliance upon a Division Bench decision reported in 2008(4) ADJ, 52 Pyare Lal and others Vs. State of U.P. and others and has placed reliance upon para 7 of the said judgement. Same is being quoted below:-
"7. The learned counsel for the petitioners has cited 2007 (5) Supreme 25, M/s Gimar Traders v. State of Maharashtra and others in which the three judges Bench of the Apex Court has clearly held that if the land is not acquired within the stipulated period and award is not made within two years from the date of declaration under Section 6 of the Act, the entire acquisition proceedings come to an end. He has further cited the case of Ravi Khullar and another v. Union of India and others, 2007 (5) SCC 231 in which the Apex Court has opined that the provisions of Section 12 of the Limitation Act cannot be read with Section 11A of the Act. Only that period has to be excluded from the stipulated time under Section 11A of the Act for which the proceedings were stayed by any competent Court. In the case of Kunwar Pal Singh v. State of U.P. and others, 2007 (5) SCC 85, the same view has been taken that if the award is made after expiry of the limitation period under section 11A of the Act, the entire acquisition proceedings would be lapsed."
Taking support of these judgements learned counsel for respondents states that this Court as well as Apex Court has taken a view that if award has not been given within a period of two years and possession of property has not been taken then entire acquisition proceeding will lapse. In Kunwar Pal Singh Vs. State of U.P. and others reported in 2007 (5) Supreme court Cases, 85 same view has been taken that if award is made after expiry of limitation period under section 11-A of the Act, entire acquisition proceeding would be lapsed. Admittedly, award was never filed before the courts below. In written statement also no plea has been taken on behalf of defendant-appellant that any award has been given.
Respondents have submitted that as acquisition proceeding has lapsed in view of fact of present case, civil court will have jurisdiction and therefore, courts below have framed Issue No.3 and has recorded a finding that plaintiff has not challenged acquisition proceeding. They claim relief in the present suit on the basis that in view of Section 11-A as proceeding is lapsed, therefore, this Court will have jurisdiction to decide the suit. Finding has been recorded that after lapse of proceeding in 1986, as regards, ownership of the property, this Court is having jurisdiction and Issue No.3 was decided in their favour. Further submission has been made that findings recorded by courts below are finding of fact, cannot be interfered in view of the decision of the Apex Court and this Court. He has placed reliance upon the following judgements:-
1. 2001 (3) AWC, 2314 (Supreme Court) Pakeerappa Rai Vs. Seethamma Hengsu (Dead) through L.Rs. and others.
"2. Learned counsel appearing on behalf of the appellant urged that the finding recorded by the first appellate court that auction-purchaser was not a stranger to the suit is based on no evidence on record and in as much as the conclusion arrived at is erroneous and the High Court committed serious mistake of law in not interfering with the said finding. Plaintiff Seethamma in her evidence stated about the nearness of the auction-purchaser with other defendants. It was brought on record that auction-purchaser was near to the husband of Laxmi who was one of the defendants in O.S. No.133 of 1963 which was tried along with suit out of which the present appeal arises. The first appellate court, on the basis of the said evidence, came to the conclusion that the auction-purchaser was not a stranger to the suit. Under such circumstances, it cannot be urged that the conclusion arrived at by the Court below was erroneous. The position would be different if the High court has the jurisdiction to reappraise the evidence. In such a situation, the High Court might have come to a different conclusion. But the High Court in exercise of power under Section 100, C.P.C. Cannot interfere with the erroneous finding of fact howsoever the gross error seems to be. We, therefore, do not find any merit in the contention of the learned counsel for the appellant."
2. 1999 (2), A.W.C. 1608 (Supreme Court) Knodiba Dagadu Kadam Vs. Savitribai Sopan Gujar and others "5. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last Court of fact, being the first appellate court. It is true that the lower appellate Court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In case where from a given set of circumstances, two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence."
3. 2002 (1) AWC 97 (Supreme Court) Veerayee Ammal Vs. Seeni Ammal "7. Section 100 of the Code of Civil Procedure (hereinafter referred to as "the Code) was amended by the amending Act No.104 of 1976 making it obligatory upon the High Court to entertain the second appeal only if it was satisfied that the case involved a substantial question of law. Such question of law has to be precisely stated in the memorandum of appeal and formulated by the High Court in its judgment, for decision. The appeal can be heard only on the question, so formulated, giving liberty to the respondent to argue that the case before the High Court did not involve any such question. The amending Act was introduced on the basis of various law commission reports recommending for making appropriate provisions in the Code of Civil Procedure which were intended to minimise the litigation, to give the litigant fair trial in accordance with the accepted principles of natural justice, to expedite the disposal of civil suits and proceedings so that justice is not delayed, to avoid complicated procedure, to ensure fair deal to the poor sections of the community and restrict the second appeals only on such questions which are certified by the Courts to be substantial question of law. We have noticed with distress that despite amendment, the provisions of Section 100 of the Code have been liberally construed and generously applied by some Judges of the High Courts with the result that objective intended to be achieved by the amendment of Section 100 appears to have frustrated. Even before the amendment of Section 100 of the Code, the concurrent finding of facts could not be disturbed in the second appeal. This Court in Paras Nath Thakur v. Smt. Mohani Dasi (deceased) and others, AIR 1959 SC 1204, held:
"It is well-settled by a long series of decisions of the judicial committee of the Privy Council and of this Court, that a High Court on second appeal, cannot go into questions of fact, however, erroneous the findings of fact recorded by the Courts of fact may be. It is not necessary to cite those decisions. Indeed, the learned counsel for the plaintiff-respondents did not and could
8. To the same effect are the judgments in Sri Sinha Ramanuja Jeer Swamigal v. Sri Ranga Ramanuja Jeer alias Emberumanar Jeer and others, AIR 1961 SC 1720, V. Ramachandra Ayyar and another v. Ramalingam Chettiar and another, AIR 1963 SC 1633. After its amendment, this Court in various judgments held that the existence of the substantial question of law is a condition precedent for the High Court to assume jurisdiction of entertaining the second appeal. The conditions specified in Section 100 of the Code are required to be strictly fulfilled and that the second appeal cannot be decided on merely equitable grounds. As to what is the substantial question of law, this Court in Sir Chunilal Mehta & Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd., AIR 1962 SC 1314, held that :
"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance of whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion or alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well-settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
9. In Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and others, 1999 (2) AWC 1608 (SC) : JT 1999 (3) SC 163, this Court again considered this aspect of the matter and held:
"If the question of law termed as substantial question stands already decided by a large bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on facts of the case would not be termed to be a substantial question of law; Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India and another v. Ramakrishna Govind Morey, AIR 1976 SC 830, held that whether trial court should not have exercised its jurisdiction differently is not a question of law justifying interference."
Taking support of aforesaid judgements learned counsel for respondent submits that appeal is liable to be dismissed.
I have heard learned counsel for appellant and Sri M.D.Singh 'Shekhar', learned Senior Advocate appearing for respondents and perused the record.
From the record it clearly appears that on the basis of notification under Section 4 and under Section 17(4) of the Land Acquisition Act issued on 12th January, 1977, the Governor was pleased to acquire certain land of Nagla Charandas. The area mentioned in the said acquisition is 76.921 acres. Various other properties were also acquired but dispute in the present appeal is only regarding Schedule-A property which shows that 76.921 acres was acquired but in the last portion of the order, it is mentioned that after issuance of Notification under Section 6/17 (1), possession was taken on 11.7.1977 of the area 66.172 acres. Rest of the land to the tune of 10.749 a request has been sent on 20.12.1977 to the State Government for exempting the said land. Meaning thereby portion belonging to plaintiff has been left out being fact that there were certain constructions and it was within the limit of 250 metres Abadi of the village. There is no dispute to this effect that compensation relating to property of Schedule -B was paid and it has also been borne out from record that certain property of plaintiff was also acquired and they have accepted the compensation. But as regards this property, according to plaintiff no award was provided under the Act and no decision was taken, therefore, acquisition proceeding relating to this property will lapse. Trial Court has framed various issues and main issue was whether civil court has jurisdiction and whether in view of Section 11-A of the Act, total proceeding in view of fact that possession has not been taken and no award has been given, total proceeding will lapse. Section 11-A is being quoted below:-
"11-A. Period within which an award shall be made- (1) The Collector shall make an award under Section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse:
Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984, the award shall be made within a period of two years from such commencement.
Section11-A was inserted by Act No.68 of 1984 with effect from 24.9.1984, therefore, in case, any award is given by 24.9.1986, proceeding according to Section 11-A will not lapse but in the present case, from the record it is clear that award has not been given and it was not filed before the court below, it has been filed before this Court that too with an application. In my opinion, that cannot be taken into consideration but in spite of the aforesaid fact, that has been perused by the Court and from that award it itself appears that out of total area acquired 10.749 acres land was left. Meaning thereby contention of appellant to this effect that award was given is not correct.
As regards possession of land is concerned, a procedure is prescribed and admittedly from the record it does not appear that procedure has been followed while taking possession. This Court in Anil Kumar's case (supra) has considered this issue and placing reliance upon the Apex Court judgement reported in A.I.R. 1975 Supreme Court, 1767 Balwant Narayan Bhagde Vs. M.D.Bhagwat & others has taken a view that while taking possession, Collector or his nominee has to take a positive action on spot. Possession certificate executed between tehsildar and the Noida Authority, such document cannot be relevant document for the purposes of establishing that possession has been taken from the person interested. Even possession has been taken by the Collector, such document must be available with the State Government which shall be taken into consideration by the State Government while passing orders upon applications. Appellate Court has also issued a commission and Amin has given a report which was exhibited that certain constructions are there on the Khasra Nos. 127, 128 and 130 which are disputed plots. He has also stated in his report that construction is old. As regards submission of appellant to the effect that Amin has given a report that possession has been taken, cannot be taken into consideration in view of fact that he has submitted in the statement that he has been posted in 1986 as Lekhpal in Noida. Only on the basis of record he has submitted that possession has been taken. In the examination-in-chief he has stated that "possession has not been taken in his presence." He further states that "without seeing the map he cannot say that what is the position of the land which has been acquired." Further from the record it is clear that if possession has not been taken and award has not been given within a period of two years then in view of Section 11-A, total proceeding will come to an end. Admittedly, award has not been filed, therefore, there is a presumption that no award has been given relating to this land and if it has not been given, in view of Section 11-A of the Act, proceeding will come to an end. In 2007 (5) Supreme Court, 25, M/s Gimer Traders Vs. State of Maharastra and others, three Judges Bench of the Apex Court has held that if land is not acquired within stipulated period and award is not made within two years from the date of declaration under Section 6 of the Act, entire proceeding of acquisition will come to an end. In Ravi Khulla and others Vs. Union of India reported in 2007 (5) Supreme Court Cases, 231, the Apex Court has given an opinion that provision of Section 12 of the Limitation Act cannot be read with Section 11-A of the Act. Only that period has to be excluded from stipulated time under Section 11-A of the Act for which proceedings were stayed by any competent court.
From perusal of record, it is clear that proper procedure regarding possession has not been followed, only on paper possession was taken. Further no award has been given, therefore, in view of Section 11-A total acquisition proceeding will come to an end. Further it has to be seen from the record of defendant-appellant that area of about 10 acres have been left and matter was referred to the State Government but the State Government admittedly has not contested the proceeding, therefore, in my opinion, findings recorded by courts below are finding of fact and cannot be interfered in view of settled principle of law. A specific finding has been recorded by courts below that possession has not been taken. Contention of appellant to the effect that finding recorded by trial court to the effect regarding possession cannot be reversed by the Appellate Court on an appeal filed by defendant-appellant, cannot be accepted in view of fact that the Appellate Court was dealing with relevant provisions of Section 11-A in view of pleading that possession has not been taken in view of the procedure prescribed. Trial Court without taking into consideration the procedure which is provided for taking over possession of a land as provided under the Land Record Manual has recorded a finding that possession has been taken but the Appellate Court has perused the Dhakalnama and procedure as well as the provisions provided under the Rules have recorded a specific finding that physical possession has not been taken and award has not been given within a period of two years, therefore, proceeding will lapse.
In my opinion, findings are based on evidence on record after consideration of various judgements of this Court as well as of Apex Court. Further it is settled in law that if finding recorded by courts below are finding of fact, based on evidence, this court in the appeal while exercising jurisdiction under Section 100 of the Civil Procedure Code should not interfere unless and until substantial question of law is involved.
But from the findings recorded by courts below, it is clear that findings are based upon evidence on record after consideration of the judgement of the Apex Court, therefore, needs no interference by this Court. The present appeal lacks merit and is hereby dismissed.
No order as to costs.