This second appeal under Section 100 of the Code of Civil Procedure was dismissed by the judgement dated 8.2.2006 of this Court mainly for the reason that in second appeal reappraisal of evidence cannot be done and that no substantial question of law arises herein. The plaintiff-appellants preferred Special Leave to Appeal Petition No. 8287 of 2006 which was allowed and Civil Appeal No. 2349 of 2008 was finally decided by the Supreme Court on 31.3.2008 and the matter was remitted back to this Court for re-decision of the appeal and the application filed by the appellant under Order XLI Rule 27 of the Code of Civil Procedure.
On 23.7.2008, the following three substantial questions of law were framed in this appeal:-
"1. Whether the sale deed dated 7.7.1982 can be declared to be null and void on the ground that the land had been acquired even though the acquisition proceeding in respect of the said land had not been completed prior to the said date as neither an award under Section 11 of the Land Acquisition Act was made nor the possession of the said land was lawfully taken as alleged by the possession memo dated 19.9.1972?
2. Whether the Courts below were in error in refusing the relief of possession to the plaintiff-appellants merely for the reasons that the land had been acquired without adverting to the fact that the acquisition was not completed?
3. Whether the burden to prove that the land had validly been acquired and had vested in the State lies upon the respondents no. 2 and 3?"
The plaintiff-appellants had filed Suit No. 373 of 1985 against one Tufail Ahmad and also impleaded Ghaziabad Development Authority as defendant no.2. It was pleaded that Tufail Ahmad claimed that he was owner of Khasra Plot No. 666 situate in village Jathwara Kala Andar Hadood City Board, Ghaziabad and the plaintiffs agreed to purchase an area of 200 Sq. meter for which a registered agreement of sale dated 10.5.1982 was entered into by the plaintiff no.1 and Tufail Ahmad who received a sum of Rs. 4,000/-. It was pleaded that a registered sale deed was executed on 7.7.1982 upon paying the balance sale consideration. The plaintiffs alleged that after execution of the sale deed they went to take possession when they came to know from the revenue record that the plot Khasra No. 666 is entered in the name of Ghaziabad Improvement Trust, whereupon the plaintiffs gave notice dated 22.11.1982 to Tufail Ahmad and Tufail Ahmad in his reply denied that the plot was acquired. The plaintiffs then submitted a building map for approval before the Ghaziabad Development Authority on 13.7.1983 which was rejected on 26.7.1983 and by letter dated 27.7.1983 they were informed that plot no. 666 has already been acquired and Ghaziabad Development Authority has obtained rights on 19.2.1972. The plaintiffs then demanded their money from Tufail Ahmad and when it was refused they filed the Suit for possession and in the alternative for recovery of money alongwith interest.
A written statement was filed by the Ghaziabad Development Authority pleading that they had obtained the land in question through Land acquisition proceedings and Tufail Ahmad has no right, title or interest to execute the sale deed in favour of the plaintiffs. Tufail Ahmad also filed his written statement contesting the claim of refund made by the plaintiffs. The plaintiffs subsequently amended the plaint on 23.11.1998 impleading the City Board Ghaziabad/Nagar Mahapalika, Ghaziabad and also amended the pleading to state that the defendant no.3, the City Board Ghaziabad was proceeding with construction on the land and they had to stop construction on an order of the High Court and further that since compensation for the land acquired had not been given the acquisition proceeding have lapsed and the possession of the Municipal Board was illegal hence they be evicted and the plaintiffs be given possession of the plot in question.
The trial court on the pleadings of the parties framed as many as 11 issues. Issue no. 1 was whether the land had been acquired prior to the sale-deed dated 7.7.1982. The issue no.2 was whether the plaintiffs were entitled to recovery of money from Tufail Ahmad. The issue no.3 was whether the plaintiffs were entitled to any interest on the amount. The issue no.4 was whether the plaintiff had been put in possession by Tufail Ahmad. The issue no.9 was whether the suit was barred in view of the provisions of the Land Acquisition Act. The issue no. 10 was whether the agreement of sale dated 10.5.1982 and sale deed dated 7.7.1982 were void-ab-initio.
The trial court took up issue no. 1, 10 and 4 together. It considered the documents submitted as revenue entries. It considered the document of possession dated 19.2.1972 filed by the Ghaziabad Development Authority and held that the land had been acquired prior to execution of agreement of sale and sale-deed by Tufail Ahmad in favour of the plaintiff no.1. It further held that plaintiffs have proved that they were in possession of the land but held that the agreement of sale and sale-deed were void ab-initio.
The trial court then took up issue no.2 regarding claim of the plaintiffs for refund of the amount alongwith expenses and held that the plaintiffs are entitled to refund of amount of agreement of sale and sale-deed. On issue no. 3 the plaintiffs were found to be entitled to interest at the rate of 6% per annum. The other issues were also decided by the trial court and it decreed the plaintiffs' suit against the defendant no.1 Tufail Ahmad for recovery of Rs. 22,904/- plus expenses with 6% interest and dismissed the suit of the plaintiffs for possession against the defendant no.2, Ghaziabad Development Authority.
The plaintiffs feeling aggrieved filed Civil Appeal No. 176 of 2002, which has been dismissed by the judgement and order dated 17.2.2005.
The first appellate court framed as many as six questions for determination. The questions no. 1 and 2 were as to whether the Ghaziabad Development Authority had acquired the land prior to the agreement of sale and sale-deed executed by Tufail Ahmad in favour of the plaintiffs and whether the plaintiffs have obtained possession from Tufail Ahmad. It found that Khasra Plot No. 666 was entered in the name of the Ghaziabad Improvement Trust and information was given to the plaintiffs about the same, when it rejected the plaintiffs building map. The court considered the orders passed in judicial proceedings in the case of other persons relating to the acquired land and held that the Special Land Acquisition Officer had already given his award under Section 11 of the Land Acquisition Act which was Paper No. 51 Ga and held that Tufail Ahmad had no title over the land in question. It recorded that the provisions of Section 17 of the unamended Land Acquisition Act were applied and therefore, Section 11-A of the Amendment Act of 1984 would not be applicable in the facts of the present case.
The appellate court decided the other questions and found that the plaintiffs were entitled to their money alongwith expenses and interest from the defendant no.1 Tufail Ahmad, hence it affirmed the judgement of the trial court. It dismissed the appeal of the plaintiff against Ghaziabad Development Authority and the City Board, Ghaziabad and refused the relief of possession.
An application under Order XLI Rule 27 of the Code of Civil Procedure has been filed and allowed at the stage of second appeal to take additional evidence on the record. The additional evidence that has been taken on the record is a document dated 8.2.1972 which has been filed as Annexure-1 to the affidavit of such application and it is a possession certificate dated 8.2.1972 issued by the Tehsildar Ghaziabad stating that the land as per list attached acquired under the Land Acquisition Act has been taken over by the Ghaziabad Improvement Trust. In the schedule attached in this possession certificate Plot No. 666 is at Sl. No.2 but it has been struck off. There is a note made in the schedule itself that possession of land excluding Khasra Plot No. 666 has been taken by the Ghaziabad Improvement Trust.
Sri Manish Goyal, learned counsel for the plaintiffs-appellants in his first submission has relied upon the possession certificate and the schedule attached thereto to state that on 8.2.1972 possession of Plot No. 666 was admittedly not taken by the Ghaziabad Improvement Trust, hence when possession was not taken although Section 17 of the Act had been applied, the acquisition was not completed. It has been argued that the courts below decided issue no.4 regarding possession in favour of the plaintiffs and against the defendant no.2 Ghaziabad Development Authority hence when the Ghaziabad Development Authority has not filed any appeal or cross objection there against the findings on issue no.4 are final and binding upon them. Consequently the possession of the plaintiffs having been proved the acquisition was not complete.
The Ghaziabad Development Authority has filed an affidavit in reply wherein they have denied the possession memo dated 8.2.1972 relating to plot no. 666. They maintain their stand as taken before the Courts below on possession memo dated 19.02.1972 (Annexure-1 to the affidavit) to submit that the possession of Plot No. 666 was taken by the Tehsildar Ghaziabad and the Ghaziabad Improvement Trust. It is pointed out that the certificate dated 19.2.1972 recites that plot no. 666 was acquired under the Land Acquisition Act in the notification under Section 6 of the Act published on 13.1.1969 and possession was taken over on 19.2.1972.
These are two documents one dated 8.2.1972 relating to the claim of the plaintiffs that he is in possession and that the Ghaziabad Development Authority never took possession on 8.2.1972. The Ghaziabad Development Authority relies on the other document that is possession memo dated 19.2.1972 to claim that they have been put in possession through the Tehsildar and Ghaziabad Improvement Trust on 19.2.1972.
A further submission is advanced by the appellants that even the possession as alleged to have been taken was unlawful and none of the procedure prescribed in paragraph 435 of Chapter XIV of the U.P. Revenue Manual was ever followed. He has submitted that a mere document of possession is paper possession and not actual possession. There is no signature of the tenure holder or any independent witness on the possession memo nor any panchnama has been prepared at the time nor produced before the Court.
The Second submission in this appeal apart from the question of possession is that the acquisition had not been completed since no award under Section 11 of the Land Acquisition Act has been made for the plot in question. Reference has been made to the award dated 13.8.1979 available on the record of the court below as paper no. 51 Ga which indicates that possession of Plot No. 666 has been taken over but its valuation has not been received by the Special Land Acquisition Officer from the acquiring body hence compensation could not be awarded. It is the case of the plaintiffs that when compensation has not been given the acquisition would not be completed, therefore, the authorities cannot claim to be owner in possession of Plot No. 666 and hence the land never vested in the State.
It is however not denied by the appellant that he or his vendor have never challenged the acquisition notifications and that a civil suit cannot be maintainable to challenge a notification under Section 6 of the Land Acquisition Act. The plaintiff-appellants had filed the suit for the following reliefs:-
"v& ;g fd oknhx.k dks Hkwfe fuEu lhfer o of.kZr ij ceqdkcys izfroknhx.k okLrfod vf/kiR; ctfj;s vehu vnkyr fnyk;k tkosA c& ;g fd oknhx.k dks izkFkZuk v uk feyus dh n'kk esa izfroknh la0 1 ls vadu [email protected] mUurhl gtkj ikap lkS :i;k fuEu fglkc }kjk e; lwn nkSjku okn o vkbZUnk c'kjg [email protected] izfr'kr okf"kZd ls fnyk;s tkosA l& ;g fd bl okn dk O;; oknh dks izfroknh ls fnyk;k tkosA n& vU; fo'ks"k U;k; lgk;rk tks fgrdj oknhx.k gks iznku dh tkosA fooj.k fglkc 17640&00 ewY; Hkwfe [email protected]& :0 bdjkjukek fn0 10&5&82 ds fnu [email protected]& :0 cSukek fn0 7&7&82 ds fnu [email protected]& [kpkZ bdjkjukek cSukek [email protected]& :0 [kpkZ bdjkjukek o eqlUuk [email protected]& :0 LVkEi cSukek o eqlUus [email protected]& :0 vU; [kpkZ ys[kd Vkbi vkfn [email protected]& :0 Qhl jftLVjh [email protected]& :0 lwn [email protected]& :0 ij 10&5&82 ls rk gky c'kjg [email protected]& izfr'kr okf"kZd [email protected]& :0 lwn [email protected]& :0 ij fn0 7&7&82 ls gky c'kjg [email protected]& izfr'kr okf"kZd [email protected]& :0 [kpkZ uD'kk vkfn cuokus dk &&&&&&&&&&&& [email protected]& &&&&&&&&&&&& ** That the plaintiff-appellants were not the owners of the land in question when the Land Acquisition proceedings were initiated is clearly established from their own pleadings. They obtained a sale-deed dated 07.07.1982 whereas the notification under Section 6 of the Land Acquisition Act was published on 13.01.1969 i.e. more than 13 years prior to the sale-deed.
In the case of U.P.Jal Nigam, Lucknow through its Chairman and another Vs. Kalra Properties (P) Ltd. Lucknow and others reported in (1996) 3 SCC 124 the Supreme Court held such a sale-deed is void. Paragraph 3 of the judgement is quoted hereunder:-
"3. The learned Attorney General for the appellants contended that after the judgment, it has come to light that in respect of the selfsame lands, the market value as per the guidelines issued by the Government was determined for stamp duty at Rs. 80 per square yard in Ziamou area and the respondent himself had purchased the land for Rs. 60,000 in 1989. The determination of the compensation by the Collector @ Rs. 200 per square foot is an obvious error apparent on the face of the record and the directions issued by the Division Bench are vitiated by manifest error of law. Shri Gopal Subramaniam, learned Senior Counsel, who has sought for and granted 15 adjournments on the ground that matter is being settled, has informed the Court that the settlement has not been reached and it is under process. He has sought further extension of time. Since the case has been adjourned several times, we are not inclined to adjourn the case. In his usual fairness, he has stated that he does not stand on technicalities. The respondent has purchased the land in question. The acquisition covered about 10,000 square feet in addition, the respondent had purchased another 5000 square feet which was also taken possession of by the respondent under the notification but the same does not form part of the acquisition. He contended that since possession was taken before declaration under Section 6 was published, it was not validly taken. Admittedly, the award was not made even after two years of the coming into force of the Amendment Act. Therefore, the notification under Section 4 (1) and the declaration under Section 6 shall stand lapsed by operation of Section 11-A of the Act. Thereby, the respondent is entitled to the compensation on the basis of prevailing market value. The District Collector had assessed the market value at Rs. 200 per square foot and also the consequential solatium and interest. Having regard to the facts of this case, we were not inclined to further adjourn the case nor to remit the case for fresh consideration by the High Court. It is settled law that after the notification under Section 4(1) is published in the Gazette and encumbrance created by the owner does not bind the Government and the purchaser does not acquire any title to the property. In this case, notification under Section 4(1) was published on 24.3.1973, possession of the land admittedly was taken on 5.7.1973 and pumping station house was constructed. No doubt, declaration under Section 6 was published later on 8.7.1973. Admittedly power under Section 17 (4) was exercised dispensing with the enquiry under Section 5-A and on service of the notice under Section 9 possession was taken, since urgency was acute, viz., pumping station house was to be constructed to drain out flood water. Consequently, the land stood vested in the State under Section 17(2) free from all encumbrances. It is further settled law that once possession is taken by operation of Section 17(2), the land vests in the State free from all encumbrances unless a notification under Section 48 (1) is published in the Gazette withdrawing from the acquisition. Section 11-A, as amended by Act 68 of 1984, therefore, does not apply and the acquisition does not lapse. The notification under Section 4(1) and the declaration under Section 6, therefore, remain valid. There is no other provision under the Act to have the acquired land divested, unless, as stated earlier, notification under Section 48 (1) was published and the possession is surrendered pursuant thereto. That apart, since M/s Kalra Properties, respondent had purchased the land after the notification under Section 4(1) was published, its sale is void against the State and it acquired no right, title or interest in the land. Consequently, it is settled law that it cannot challenge the validity of the notification or the regularity in taking possession of the land before publication of the declaration under Section 6 was published."
In the case of Meera Sahni Vs. Lt. Governor of Delhi and others reported in (2008) 9 SCC 117 the Supreme Court has clearly held that any transfer made after issuance of the notification would be deemed to be void and would not be binding. Paragraph 17 of the judgement is quoted hereunder:-
"17. When a piece of land is sought to be acquired, a notification under Section 4 of the Land Acquisition Act is required to be issued by the State Government strictly in accordance with law. The said notification is also required to be followed by a declaration to be made under Section 6 of the Land Acquisition Act and with the issuance of such a notification any encumbrance created by the owner, or any transfer made after the issuance of such a notification would be deemed to be void and would not be binding on the Government. A number of decisions of this Court have recognised the aforesaid proposition of law wherein it was held that subsequent purchaser cannot challenge acquisition proceedings and also the validity of the notification or the irregularity in taking possession of the land after the declaration under Section 6 of the act."
In Shanti Sports Club and another Vs. Union of the India and others reported in (2009) 15 SCC 705 again the Supreme Court held as quoted hereunder:-
"63. This being the position, the appellants cannot plead equity and seek court's intervention for protection of the unauthorised constructions raised by them. It is trite to say that once the land is acquired by following due process of law, the same cannot be transferred by the landowner to another person and that any such transfer is void and is not binding on the State. A transferee of the acquired land can, at best, step into the shoes of the landowner and lodge claim for compensation--Gian Chand v. Gopala, Jaipur Development Authority v. Daulat Mal Jain, Yadu Nandan Garg v. State of Rajasthan and Jaipur Development Authority v. Mahavir Housing Coop. Society."
In the case of Tika Ram and others Vs. State of Uttar Pradesh and others reported in (2009) 10 SCC 689 it was held that even though the agreement of sale was executed before the notification under Section 4 of the Act but when the sale-deed was executed the Acquisition had already commenced hence they had no entitlement or any right to question the title of the State.
The law is clear that when land acquisition proceedings have started with issue of notification under Section 4 and 6 of the Act then any transfer of land would not entitle the transferee to question the title of the State and such transfer would be void.
In the present case clearly the transfer of land was made long after the notifications under Section 4 and 6 of the Act had been published.
On the question of possession the Authority has relied upon the possession memo dated 19.02.1972. The memo does record that possession was handed over by the State authorities. Both the courts below have believed it and relied upon it to concurrently hold that possession was taken thereupon. In view of the categorical stand taken by Ghaziabad Development Authority on the possession memo dated 19.2.1972 the plaintiffs reliance on the alleged possession memo dated 8.2.1972 loses all significance since admittedly possession was not taken on 8.2.1972 even if it is believed. The additional evidence in the form of possession memo dated 8.2.1972 cannot be of any help since possession was taken on 19.2.1972 and not on 8.2.1972. An argument has been raised that it was paper possession and not actual possession for which reliance has been placed on decisions under the Urban Land Ceiling Act and upon the Revenue Manual.
It cannot be lost sight that the plaintiff-appellants are purchasers of the land much after issue of notifications under Section 4 and 6 of the Act. Their status is only of stepping into the shoes for the purpose of receiving compensation and they have no other right to challenge the Acquisition or the procedure. Even their status to receive compensation is dependant on the validity of their sale-deed vis a vis their vendor. So far as the State and the acquiring body are concerned they are in no way bound by such illegal transfer.
It then logically follows that when the plaintiff-appellants' sale deed was void abinitio their claim for possession was totally unfounded and it was not based on any valid or legal right when the possession was taken on 19.02.1972 by the Authority from the State and admittedly constructions by the Authority was going on when the plaintiff visited the spot then actual physical possession had already been taken. Clearly they had no locus standi to question the proceedings under taken for possession of the land by the State and the acquiring body. Even equities cannot be in their favour because in the present case equity could only follow law and not the other way round. Having no lawful right or title the plaintiff appellants could not be granted the relief of possession against the Authority.
Having so recorded it would be appropriate to refer to all the decisions cited by learned counsel for the plaintiff-appellants in their application to the present case.
In the case of State of Maharashtra Vs Pravin Jethalal Kamdar AIR 2000 SC 1099 an issue of limitation after possession was under consideration and it was held 'when possession has been taken by the appellants pursuant to void documents, Article 65 of the Limitation Act will apply and the limitation to file the suit would be 12 years'. This was a case under the Urban Land Ceiling Act. The law laid down as above has no relevance to the controversy in the present case nor such an issue regarding limitation arises in these proceedings.
In Satyabadi Naik Vs State of Orissa AIR 1979 Orissa 8 the High Court held that the State had conceded that the plaintiff was found in possession for at least 3 or 4 years before the filing of the suit and possession was not taken hence the acquired land had not vested in the State. It was a case where the State had conceded on the question of possession hence the legal consequences necessarily followed. That is not so in the present case. The acquiring body has not conceded on the question of possession and the State is not a party to these proceedings.
The case of State of Orissa Vs. Bhanu Mali (Dead) Nurpa Bewa and others reported in AIR 1996 Orissa 199 related to the Orissa Prevention of Land Encroachment Act (Act no. 6 of 1972). The land owner was found to be in possession of the land for more than thirty years prior to the initiation of the encroachment proceedings. It was held that a suit for declaration of title by the land owner was maintainable before the Civil Court particularly when under the Act no. 6 of 1972 the court was of limited jurisdiction and the remedy under Section 6 of Act no. 6 of 1972 was a summary remedy and not the kind of legal process which was suited to an adjudication of complicated questions of title. In the present case the plaintiff-appellant being a transferee after notification under Section 4 and 6 of the Land Acquisition Act has brought the suit before the Civil Court whereas the Land Acquisition Act is a complete code for resolution of all disputes arising there under. This decision in the case of Bhanu Mali can be of no benefit to the appellants.
In the case of State of U.P. Vs District Judge, Meerut and another AIR 1984 Allahabad 352 the court held that even if land was notified under Section 6 of the Land Acquisition Act it could be included in the total holding of the land holder for the purpose of computation of excess vacant land under the Urban Land Ceiling Act. The argument is that when possession was not taken after notification under Section 4 and 6 of the Land Acquisition Act then the land had not vested in the State hence the Urban Land Ceiling proceedings could validly include it in the computation of excess land and therefore in case when possession was not taken it never vested in the State. That is not the circumstance in the present case.
In paragraph 15 of the decision in the case of M/s Jetmull Bhojraj Vs State of Bihar AIR 1972 SC 1363 it was laid down as quoted here under:-
"15. It was next contended by Mr. Garg and Mr. A.K.Sen, that the expression 'whenever the appropriate Government so directs' in Sec. 17(1) refers to urgency and not to the taking of possession of the lands notified for acquisition. Their further contention was that no sooner the Government issued the notification under S. 17 (4), the factum of urgency was established and hence on the expiration of the fifteen days from the publication of notice under Section 9(1) the lands which were already in the possession of the Government vested in the Government. We are unable to accept this construction of Section 17 (1). In our judgment Section 17(1) is plain and unambiguous. The expression "whenever the appropriate Government so directs" in that section refers to the taking of possession and not to the declaration of urgency. Even in cases of urgency, the Government may not think it necessary to take immediate possession for good reasons. Neither the language of Section 17(1) nor public interest justifies the construction sought to be placed by the learned Counsel for the appellant."
A Division Bench of this court in Agra Ice Factory and Cold Storage, Naraich Hathras Road Agra-6 Vs. State of U.P. 1996 A.L.J. 581 found that the government did not seriously dispute that they had not taken possession of the land after notification under the Land Acquisition Act and the government was considering release of the acquired land. The court issued directions to the government to consider the question of release. The present case does not involve any such consideration by the State or the acquiring body.
In Om Prakash and another Vs. State of U.P. and others (1998) 6 SCC 1 the Supreme Court while considering the invocation of Section 17(4) of the Land Acquisition Act found that though possession was not taken it did not set aside the acquisition in view of disputed questions of fact regarding existence of Abadi and held that the remedy available to the appellants was by way of suitable representation to the Government under Section 48 of the Land Acquisition Act. On the issue of possession certificate it was held that when constructions were existing on the land of the appellants then "it would be difficult to appreciate as to how the possession certificate for all these number of lands would necessarily include actual taking over of the number of lands on which there were constructions on the spot at the relevant time." In the present case there were no constructions over the land hence the possession certificate dated 19.02.1972 is not to be doubted for that reason.
Actual possession as against symbolic possession was considered by the Supreme Court in the case of "Balwant Narayan Bhagde Vs. M.D. Bhagwat AIR 1975 SC 1767" and the law was clearly laid down in paragraph 28 and 29. Both the paragraphs are quoted hereunder:
"28. 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 would 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 interest 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 S. 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 handing 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.
29. In the instant case in agreement with the findings of the High Court, I hold that in the eye of law actual possession of the land in question was taken by the Tahsildar on the spot and the possession was handed over to the Principal of the Agricultural College. It appears that the appellant on his part thought that he never gave up possession and claimed to continue in actual possession of the disputed land, because of the stay order passed by the Government on or about the 16th April, 1959. It is in the background of the law discussed above that the statement that "the possession (physical) of the entire field S. No. 30/2 of Umari is still retained by the lessee of that field and the land was not actually taken possession of by the Principal, Agricultural College, Akola", occurring in the letter dated the 13th December, 1961 written by the Special Land Acquisition Officer, Akola to the Commissioner, Nagpur has got to be appreciated and so also the stand of the Government in its counter as to what was meant by taking of symbolical possession. Viewed in the light of the discussion of law I have made above, it would be noticed that possession of the land, in any event, was taken on the spot and it vested in the Government. The appellant's resuming possession of the land after once it was validly taken by the Government had not the effect of undoing the fact of the vesting of the land in the Government. The Government or the Commissioner was not at liberty to withdraw from the acquisition of any portion of the land of which possession had been taken, under Section 48(1) of the Act."
In the present case the possession certificate dated 19.02.1972 is itself reproduced herein:-
"Possession Certificate:
The possession over the land measuring 0.6563 acres (as per list attached) required permanently in village Jatwara Kalan, Pargana Loni, Tehsil Ghaziabad, Distt. Meerut notified u/s 6 read with Section 17 (1) (1-A) of the L.A.Act, 1984 vide Government Notification No. 63-K/XXXVII-139-HZB-68 dated 13.1.1969 published in U.P. Gazette dated Jan. 13, 1969 has been taken over by me to day.
Sd/-illegible Tehsildar, Ghaziabad for Collector, Meerut.
There has been a taking of possession and handing over of possession between the State authorities and the acquiring body on 19.02.1972. The plaintiffs-appellants themselves plead to have purchased the land in 07.07.1982 i.e. after ten years of taking possession by the Authority. Clearly they obtained no status for being put in possession even through their vendor on or after 19.02.1972.
The decision of the Punjab and Haryana High Court in "Hira Lal Vs. State of Haryana AIR 1994 P & H 101" related to purpose of acquisition and its exclusion. It was held that land whereupon houses were built were released from acquisition and not those where there were no constructions. That is not the circumstance in the present case and these proceedings arise out of a Civil Suit and is not a petition under Article 226 of the Constitution of India.
Another decision on the issue of possession relied upon is "State of U.P. Vs. Ram Autar 1979 ALJ 1072" where the Collector had taken possession of excess land and although the illegality was waived by the owner the state did not pay compensation for the excess land. It was held that since possession has been taken then compensation has to be paid. Reliance on this decision appears to be to canvass on the claim/right of the plaintiff-appellants to be paid compensation. The present is not a case of the State taking possession of excess land. The plot in question was acquired and that is the very basis of the suit of the plaintiff-appellants.
The second submission is that the award was not made under Section 11 of the Act. Admittedly in this case Section 11-A of the Act cannot apply. In the case of Satendra Prasad Jain and others Vs. State of U.P. and others (1993) 4 SCC 369 the Supreme Court held in paragraph 15 as quoted hereunder:-
"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 landowner and ensure that the award is made within a period of two years from the date of the Section 6 declaration. In the ordinary case, therefore, when Government fails to make an award within two years of the declaration under Section 6, the land has still not vested in the Government and its title remains with the owner, the acquisition proceedings are still pending and, by virtue of the provisions of Section 11-A, lapse. When Section 17(1) is applied by reason of urgency, Government takes possession of the land prior to the making of the award under Section 11 and thereupon the owner is divested of the title to the land which is vested in the Government. Section 17(1) states so in unmistakable terms. Clearly, Section 11-A can have no application to cases of acquisitions under Section 17 because the lands have already vested in the Government and there is no provision in the said Act by which land statutorily vested in the Government can revert to the owner."
The original owner Tufail Ahmad has not come forward to claim any compensation. It was not even an issue raised in the suit nor adjudicated. When the plaintiffs sale-deeds are void they too cannot maintain any plea for compensation particularly when the land was not acquired from them. When the Notification under Section 4 and 6 of the Act was issued they were not even in the picture. They are definitely not within the category of 'claimants' under the Land Acquisition Act. Hence the second submission is totally misconceived from the mouth of the appellants.
In these circumstances it has to be held that possession was lawfully taken on 19.02.1972 by the Authority from the State and the acquisition was complete. The sale-deed dated 07.07.1982 was void and the relief of possession could not be granted to the plaintiffs. The State has not been made a party to these proceedings however the respondent Authority has successfully discharged its burden to prove that the land was validly acquired and had vested in the State. The substantial questions of law are answered as above.
The appeal has no force. It is dismissed.
No order is passed as to costs.
Dated:-25.3.2011 Lbm/-