Supreme Court of India
BANDA DEVELOPMENT AUTHORITY, BANDAversusMOTI LAL AGARWAL AND OTHERS
- Citation
- 2011 INSC 331
- Decided
- 26 April 2011
- Disposal
- Appeal(s) allowed
- Bench
- G S SINGHVI
Holding
The acquisition did not lapse; possession was taken, Section 11A was inapplicable, and the writ petition was dismissed due to unreasonable delay.
Summary
The State Government acquired 103 bighas of land in Banda district for the Tulsi Nagar Residential Scheme under the Land Acquisition Act, 1894, issuing a notification on 8‑9‑1998 and a declaration on 7‑9‑1999. The acquisition was completed with possession handed over to the Banda Development Authority (BDA) on 30‑6‑2001 and the award passed on 14‑6‑2002, after which 80% of compensation was deposited. Respondent No.1 (Motilal Agarwal) filed a writ petition in 2008 challenging the acquisition on the ground that the award was not passed within two years of the declaration as required by Section 11A and that physical possession had not been taken. The Allahabad High Court allowed the petition, holding that the acquisition had lapsed. On appeal, the Supreme Court held that the long delay (nine years after the declaration and six years after the award) barred relief, that possession had indeed been taken (symbolic possession via panchnama and subsequent development sufficed), and that Section 11A does not apply where land has vested under Section 17(1). Consequently, the writ petition was dismissed and the appeal allowed. The Court also clarified the principles for determining when possession is taken under the Act.
Issues considered
- Whether the nine‑year delay in filing the writ petition and the six‑year delay after the award preclude relief under Article 226.
- Whether Section 11A of the Land Acquisition Act, 1894, renders the acquisition proceedings void for failure to pass an award within two years when possession has been taken and the land has vested under Section 17(1).
- What constitutes taking possession of land acquired under the Act, especially where the land is vacant or developed.
- Whether the High Court erred in holding that the acquisition proceedings had lapsed.
Legislation cited
- Constitution of Indias. 226
- Land Acquisition Act, 1894s. 11A, s. 17(1), s. 17(3A), s. 17(4), s. 4(1), s. 6(1)
Subjects
land acquisitionSection 11Apossessiondelaylachespublic purposeArticle 226writ petitionemergency provisionsTulsi Nagar Residential SchemeBanda Development Authority
Judgment
[2011] 7 S.C.R. 435
BANDA DEVELOPMENT AUTHORITY, BANDA A
v.
MOTi LAL AGARWAL AND OTHERS
{Civil Appeal No. 3604 of 2011)
APRIL 26, 2011
B
[G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.]
Land Acquisition Act, 1894- ss.4(1), 6(1), 11A, 17(1) and
17(4):
c
Writ petition filed by respondent no.1 challenging
acquisition of land by the State Government on the ground
that the award was not passed within two years from the date
of last publication of the declaration issued under s.6(1) -
Allowed by High Court - On appeal, held: In matters involving D
challenge to the acquisition of land for public purpose, delay
in filing the writ petition should be viewed seriously and relief
denied to the petitioner if he fails to offer plausible explanation
for the delay - Delay of even few years would be fatal to the
cause of the petitioner, if the acquired land has been partly E
or wholly utilised for the public purpose - On facts, the High
Court was duty bound to take cognizance of the long time gap
. of 9 years between the issue of declaration under s. 6(1) and
filing of the writ petition and decline relief to respondent No. 1
on the ground that he was guilty of /aches because the
acquired land had been utilized for implementing a residential F
scheme and third party rights had been created - The
unexplained delay of about six years between the passing of
award and filing of writ petition was also sufficient for refusing
to entertain the prayer made in the writ petition - Also the
action of the concerned State authorities to go to the spot and G
prepare panchnama showing delivery of possession was
sufficient for recording a finding that actual possession of the
entire acquired land had been taken and handed over to the
development authority concerned i.e. BDA - Once it is held
435 H
436 SUPREME COURT REPORTS (2011] 7 S.C.R.
A that possession of the acquired land was handed over to the
BOA, the view taken by the High Court that the acquisition
proceedings had lapsed due to non-compliance of s. 11 A
cannot be sustained.
Mode of taking possession of the acquired land -
8
Principles culled out from earlier judgments - Held: No hard
and fast rule can be laid down as to what act would constitute
taking of possession of the acquired land - If the acquired
land is vacant, the act of the concerned State authority to go
to the spot and prepare a panchnama will ordinarily be treated
C as sufficient to constitute taking of possession - If crop is
standing on the acquired land or building/structure exists,
mere going on the spot by the concerned authority will, by
itself, be not sufficient for taking possession - Ordinarily, in
such cases, the concerned authority will have to give notice
D 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
E possession of the acquired land has not been taken - 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 evety parcel of the land and it will
be sufficient that symbolic possession is taken by preparing
F appropriate document in the presence of independent
witnesses and getting their signatures on such document - If
beneficiary of the acquisition is an agency/instrumentality of
the State and 80% of the total compensation is deposited in
terms of s. 17(3A) and substantial portion of the acquired land
G has been utilised in furtherance of the particular public
purpose, then the Court may reasonably presume that
possession of the acquired )and has been taken.
Constitution of India, 1950 - Article 226 - Effect of delay
in filing writ petition - Discussed - Held: Though no limitation
H
BANDA DEVELOPMENT AUTHORITY, BANDA v. 437
MOTi LAL AGARWAL AND ORS.
has been prescribed for filing a petition under Art.226 of the A
Constitution, the High Court ought not to entertain petitions
filed after long lapse of time because that may adversely
affect the settled/crystallized rights of the parties - If the writ
petition is filed beyond the period of limitation prescribed for
filing a civil suit for similar cause, the High Court will treat the B
delay unreasonable and decline to entertain the grievance of
the petitioner on merits.
In the writ petition filed by him on 24.3.2008,
respondent No.1 challenged acquisition of land by the
State Government for implementing a residential scheme C
by challenging notification dated 8.9.1998 issued under
Section 4(1) read with Section 17(1) and 17(4) of the Land
Acquisition Act, 1894 and declaration dated 7 .9.1999
issued under Section 6(1) read with Section 17(1) of the
Act mainly on the ground that the acquisition D
proceedings were deemed to have lapsed because the
award was not passed within two years from the date of
last publication of the declaration issued under Section
6(1 ). The High Court allowed the writ petition on the
ground that the acquired land did not vest in the State E
Government because physical possession of the land
belonging to respondent no.1 was not taken till 31-7-2002
and the award was not passed within two years as per
the mandate of Section 11A.
F
The appellant contended before this Court that the
High Court was !lOt justified in entertaining and allowing
the writ petition filed after nine years of publication of the
declaration issued under Section 6(1) and six years of the
passing of award by the Special Land Acquisition Officer G
and that too by ignoring that during the intervening
period the development authority concerned (BOA)
carried out development, carved out plots and allotted the
same to the eligible applicants and also constructed
some flats. The appellant contended that Section 11A is H
438 SUPREME COURT REPORTS [2011} 7 S.C.R.
A not applicable to the cases in which the land is acquired
by invoking the emergency provisions contained in
Section 17(1) and 17(4) and further that the exercise
undertaken for taking possession of the acquired land by
the concerned authorities of the State and delivery
B thereof to the BOA could not have been brushed aside
by the High Court by describing it as symbolic/paper
possession.
The question which thus arose for consideration in
the instant appeal was whether the High Court was
C justified in entertaining and allowing the writ petition filed
by respondent No.1 for nullifying the acquisition of his
land by the State Government on the ground of non
passing of award within the time prescribed under
Section 11 A.
D
Allowing the appeal, the Court
HELD:1.1. Even if the objecticn of delay and laches
had not been raised in the affidavits filed on behalf of the
E BOA and the State Government, the High Court was duty
bound to take cognizance of the long time gap of 9 years
between the issue of declaration under Section 6(1) and
filing of the writ petition and declined relief to respondent
No.1 on the ground that he was guilty of laches because
F the acquired land had been utilized for implementing the
residential scheme and third party rights had been
created. The unexplained delay of al:fout six years
between the passing of award and filing of writ petition
was also sufficient for refusing to entertain the prayer
made in the writ petition. [Para 15] [453-G-H; 454-A-B]
G
1.2. It is true that no limitation has been prescribed
for filing a petition under Article 226 of the Constitution
but one of the several rules of self imposed restraint
evolved by the superior courts is that the High Court will
H not entertain petitions filed after long lapse of time
BANDA DEVELOPMENT AUTHORITY, BANDA v. 439
MOTi LAL AGARWAL AND ORS.
because that may adversely affect the settled/crystallized A
rights of the parties. If the writ petition is filed beyond the
period of limitation prescribed for filing a civil suit for
similar cause, the High Court will treat the delay
unreasonable and decline to entertain the grievance of
the petitioner on merits. [Para 16] [454-C-D] B
1.3. In matters involving challenge to the acquisition
of land for public purpose, delay in filing the writ petition.
should be viewed seriously and relief denied to the
petitioner if he fails to offer plausible explanation for the
delay. Delay of even few years would be fatal to the cause C
of. the petitioner, if the acquired land has been partly or
wholly utilised for the public purpose. [Para 17] [455-D]
State of Madhya Pradesh v. Bhai/al Bhai AIR 1964 SC
1006: 1964 SCR 261; Ajodhya Bhagat v. State of Bihar
(1974) 2 SCC 501; State of Rajasthan v. D.R. Laxmi (1996) D
6 SCC 445: 1996 (6) Suppl. SCR 221; Girdharan Prasad
Missir v. State of Bihar (1980) 2 SCC 83; Municipal
Corporation of Greater Bombay v. Industrial Development
Investment Co. Pvt. Ltd. (1996) 11 SCC 501: 1996 (5) Suppl.
SCR 551; Urban Improvement Trust, Udaipur v. Bheru Lal E
(2002) 7 SCC 712: 2002 (2) Suppl. SCR 512; Ganpatibai v.
State of M.P (2006) 7 SCC 508: 2006 (5) Suppl. SCR 215;
Sawaran Lata v. State of Haryana (2010) 4 SCC 532: 2010
(4 ) SCR 40 - relied on.
Vya/ikaval Housebuilding Cooperative Society v. V. F
Chandrappa (2007) 9 SCC 304: 2007 (2) SCR. 277; Babu
Ram v. State of Haryana (2009)10 SCC 115: 2009 (14) SCR
1111; State of Bihar v. Dhirendra Kumar (1995) 4 SCC 229:
1995 (3) SCR 857; Anil Kumar v. State of U.P. (2008) 2 AWC G
1832 (Allahabad High Court) and Sushi/ Kumar v. State of
U.P. (1999) 1 AWC 764 (Allahabad High Court) - referred
~. .
Administrative Law by H. W.R. Wade (7th edition) at
pages 342-343 - referred to. H
440 SUPREME COURT REPORTS [2011] 7 S.C.R.
A. 2. In this case, the acquired land was utilized for
implementing Tulsi Nagar Residential Scheme inasmuch
as after carrying out necessary development I.e.
construction of roads, laying electricity, water and sewer
lines etc. the BOA carved out plots, constructed flats for
B economically weaker sections and lower income group,
invited applications for allotment of the plots and flats
from general as well as reserved categories and allotted
the same to eligible persons. In the process, the BOA not
only incurred huge expenditure but also created third
c party rights. In this scenario, the delay of nine years from
the date of publication of the declaration issued under
Section 6(1) and almost six years from the date of
passing of award should have been treated by the High
Court as more than sufficient for denying equitable relief
to respondent No.1. [Para 25] [458-F-H; 459-A]
p
· 3. The premise on which the High Court declared
that the acquisition proceedings will be deemed to have
lapsed because the award was not passed within two
years is ex facie erroneous. Admittedly, the State
E Government had acquired the land by issuing notification
under Section 4 read with Section 17(1) and (4), which was
followed by a declaration issued under Section 6(1) read
with Section 17(1 ). By notification dated 7.9.1999, the
Governor had directed Collector, Banda to take
F possession of the acquired land on the expiration of 15
days from the issue of notice under Section 9(1 ). In
furtherance of the direction given by the Collector, the
concerned revenue authorities took possession of the
acquired land, which, has already been utilized for
G implementing Tulsi Nagar Residential Scheme. Though,
respondent No.1 succeeded in convincing the High Court
that physical possession of his land had not been taken
till 31. 7.2002, after carefully perusing the record, the
finding recorded on this issue is unsustainable. The
H respondent No.1 had virtually admitted that possession
BANDA DEVELOPMENT AUTHORITY, BANDA v. 441
MOTi LAL AGARWAL AND ORS.
of the acquired land was with the BOA. If this was not so, A
there was no occasion for him to make a grievance that
the land had been demarcated by putting stones and the
BOA was in the process of raising construction. That
apart, respondent No. 1 did not deny the statements
contained in the affidavits filed before the High Court that B
the revenue authorities visited the spot and made entries
in the Field Book regarding delivery of possession. The
photographs produced by the parties before this Court
show that after taking possession of the acquired land, I
the BOA constructed roads,buildings etc., laid sewer c '.
lines and erected poles for electric lines. The
photographs also reveal that by taking advantage of the
impugned order, respondent No.1 took possession of a
portion of the land on which the BOA had already carried
out development. All this is sufficient to discard the claim 0
of respondent No.1 that actual possession of the acquired
land had not been delivered to the BOA till July, 2002.
[Para 27) [460-B-H; 461-A]
4. The principles culled out from earlier judgments as
regards what should be the mode of taking possession E
of the land acquired under the Act are as follows: i) No
hard and fast rule can be laid down as to what act would
constitute taking of possession of the acquired land; ii)
If the acquired land is vacant, the act of the concerned
State authority to go to the spot and prepare a F
panchnama will ordinarily be treated as sufficient to
constitute taking of possession; iii) If crop is standing on
the acquired land or building/structure exists, mere going
on the spot by the concerned authority will, by itself, be
not sufficient for taking possession. Ordinarily, in such G
cases, the concerned authority will have to give notice
to the occupier of the building/structure or the person
who has cultivated the land and take possession in the
presence of independent witnesses and get their
signatures on the panchnama. Of course, refusal of the I-
442 SUPREME COURT REPORTS [2011] 7 S.C.R.
A 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
s 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 and v) If beneficiary
of the acquisition is an agency/instrumentality of the
c State and 80% of the total compensation is deposited in
terms of Section 17(3A) and substantial portion of the
acquired land has been utilised in furtherance of the
particular public purpose, then the Court may reasonably
presume that pos$ession of the acquired land has been
taken. [Para 34] [465-B-H; 466-A]
0
Nahar Singh v. State of U.P. (1996) 1 SCC 434:1995 (5)
Suppl. SCR 754 - distinguished.
Ba/want Narayan Bhagde v. M.D. Bhagwat (1976) 1 SCC
E 700; Balmokand Khatri Educational and Industrial Trust v.
State of Punjab (1996) 4 sec 212: 1996 (4) sec 212; P.K.
Kalburqi v. State of Kamataka (2005) 12 SCC 489; NTPC v.
Mahesh Dutta (2009) 8 SCC 339: 2009 (10) SCR 1084; Sita
Ram Bhandar Society v. Govt. of NCT, Delhi (2009) 10 SCC
F 501: 2009 (14) SCR 507; Omprakash Verma v. State of
Andhra Pradesh (2010) 13 SCC 158: 2010 (15) SCR 302;
Brij Pal Bhargava v. State of UP 2011 (2) SCALE 692 - relied
on.
5. In the instant case, the action of the concerned
G State authorities to go to the spot and prepare
panchnama showing delivery of possession was
sufficient for recording a finding that actual possession
of the entire acquired land had been taken and handed
over to the BOA. The utilization of the major portion of
H the acquired land for the public purpose for which it was
BANDA DEVELOPMENT AUTHORITY, BANDA v. 443
MOTi LAL AGARWAL AND ORS.
acquired is clearly indicative of the fact that actual A
possession of the acquired land had been taken by the
BOA. Once it is held that possession of the acquired land
was handed over to the BOA on 30.6.2001, the view taken
by the High Court that the acquisition proceedings had
lapsed due to non-compliance of Section 11A cannot be B
sustained. In Satendra Prasad Jain's case, this Court
considered the applicability of Section 11A in cases
involving acquisition of land under Section 4 read with
Section 17 and held that Section 11-A can have no
application to cases of acquisitions under Section 17 c
because the lands have already vested in the
G.overnment and there is no provision in the said Act by
which land statutorily vested in the Government can
revert to the owner. The same view has been reiterated
in a number of other cases. The writ petition filed by D
respondent No.1 is dismissed with cost quantified at
Rs.1,00,000/-. Respondent No.1 shall deposit the amount
of cost with the appellant [Paras 35 to 38) [466-B-H; 467-
C-E]. ,
Satendra Prasad Jain v. State of U.P. (1993) 4 SCC 369: E
1993 (2) Suppl. SCR 336; Awadh Bihari Yadav v. State of
Bihar (1995) 6 SCC 31: 1995 (3) Suppl. SCR 197; Pratap
v. State of Rajasthan (1996) 3 SCC 1: 1996(2) SCR 1088;
Parsinni v. Sukhi (1993) 4 SCC 375: 1993 (2) Suppl. SCR
315; Allahabad Development Authority v. Nasiruzzaman F
(1996) 6 SCC 424: 1996 (5) Suppl. SCR 435; Government
of A.P. v. Kollutla Obi Reddy (2005) 6 SCC 493: 2005 (2)
Suppl. SCR 513 - relied on.
Case Law Reference:
G
1993 (2) Suppl. SCR 336 relied on Para 10,11,36
1995 (3) Suppl. SCR 197 relied on Para 10,37
1996(2) SCR 1088 relied on Para ·10,37
H
444 SUPREME COURT REPORTS (2011) 7 S.C.R.
A 1996 (5) Suppl. SCR 435 relied on Para 10,37
2005 (2) Suppl. SCR 513 relied on Para 10,37
1995 (5) Suppl. SCR 754 distinguished Para 12, 33
(2008) 2 AWC 1832 referred to Para 12
B
(1999) 1 AWC 764 referred to Para 12
1964 SCR 261 relied on Para 16
(1974) 2 sec 501 relied on Para18
c
1996 (6) Suppl. SCR 221 relied on Para 19
(1980) 2 sec 83 relied on Para 20
1996 (5) Suppl. SCR 551 relied on Para 21
D 2002 (2) Suppl. SCR 512 relied on Para 22
2006 (5) Suppl. SCR 215 relied on Para 23
1995 (3) SCR 857 referred to Para 23
E 2010 (4) SCR 40 relied on Para 24
2007 (2) SCR 277 referred to Para 26
2009 (14) SCR 1111 referred to Para 26
(1976) 1 sec 100 relied on Para 28,30
F
1996 (4) sec 212 relied on Para 29
(2005) 12 sec 489 relied on Para 30
2009 (10) SCR 1084 relied on Para 31
G Para 32
2009 (14) SCR 507 relied on
2010 (15) SCR 302 relied on Para 32
2011 (2) SCALE 692 relied on Para 32
H
BANDA DEVELOPMENT AUTHORITY, BANDA v. 445
MOTi LAL AGARWAL AND ORS.
1993 (2) Suppl. SCR 315 relied on Para 37 A
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
3604 of 2011.
From the Judgment & Order dated 27.8.2010 of the High
Court of Judicature at Allahabad in Writ Petition No. 16109 of B
2008.
P.S. Patwalia, Reena Singh for the Appellant.
W.H. Khan, Mukesh Verma, Prawar Khan for the C
Respondents.
The Judgment of the Court was delivered by
G.S. SINGHVI, J. 1. Leave granted.
D
2. The question which arises for consideration in· this
appeal is whether the Division Bench of the Allahabad High
Court was justified in entertaining and allowing the writ petition
filed by respondent No.1-Moti.Lal Agarwal in 2008 for nullifying
the acquisition of his land by the State Government vide
notification dated 8.9.1998 issued under Section 4(1) read with E
Section 17(1) and 17(4) of the Land Acquisition Act, 1894 (for
short, "the Act") which was followed by declaration dated
7.9.1999 issued under Section 6(1) read with Section 17(1) on
_the ground of non passing of award within the time prescribed
under Section 11A. F
3. By the notifications referred in the preceding paragraph,
the State Government acquired 103 bighas land situated in
Ladakapurwa and Bhawanipur villages, Pargana and District
Banda for Tulsi Nagar Residential Scheme of the Banda G
Development Authority (for short, "the BOA"). Both the
notifications were published in the manner prescribed under
Sections 4(1) and 6(2) respectively.
4. On 5.6.2000, the Secretary of the BOA deposited H
446 SUPREME COURT REPORTS [2011] 7 S.C.R.
A Rs.63,47,855.07 towards 80% of the compensation payable in
lieu of the acquisition of 103 bighas land. This was in
compliance of the mandate of Section 17(3A). The concerned
authorities of the State delivered possession of the acquired
land to the BOA on 30.6.2001. The officers of the Revenue
B Department visited the site on 4.9.2001 and prepared the Field
Book, copy of which has been produced before this Court along
with affidavit dated 19.1.2011 of Shri Biri Singh, Executive
Engineer, BOA. The Special Land Acquisition Officer passed
award dated 14.6.2002 for the acquired land including plot
c No. 795 of which 5 big has 5 biswas was purchased by
respondent No.1 vide registered sale deed dated 4.10.1982.
5. In the meanwhile, the BOA prepared lay out for the
acquired land which was sanctioned by its Board on 8.5.2002.
Thereafter, the land was developed in a phased manner and
D plots were carved out for economically weaker sections and
LIG, MIG and HIG categories. The BOA also constructed flats
for economically weaker sections and those belonging to lower.
· income group. The plots and flats were allotted to the eligible
persons who had applied in response to different
E advertisements issued by the BOA between 2.11.2002 and
26.4.2006.
6. After more than three years of publication of the
declaration issued under Section 6(1 }, respondent No.1 filed
F suit being O.S. No.52 of 2003 in the Court of Civil Judge
(Senior Division), Banda, and prayed that the defendants be
directed to start the acquisition proceedings afresh and
disburse compensation after sub-dividing and numbering plot
No.795 in accordance with paragraph 63 of the Land Record
G Manual. The suit was dismissed on 1.9.2007 in view of the bar
contained in the Uttar Pradesh Zamindari Abolition and Land
Reforms Act and the Land Acquisition Act. Respondent No.1
challenged the order of the trial Court in First Appeal No.364
of 2007 but withdrew the same by stating that the writ petition
H filed by him was pending.
BANDA DEVELOPMENT AUTHORITY, BANDA v. 447
MOTi LAL AGARWAL AND ORS. [G.S. SINGHVI, J.]
7. In the writ petition filed by him on 24.3.2008, respondent A
No.1 challenged notifications dated 8.9.1998 and 7.9.1999
mainly on the ground that the acquisition proceedings will be
deemed to have lapsed because the award was not passed
within two years from the date of last publication of the
declaration issued under Section 6(1 ). Respondent No.1 B
pleaded that though plot No.795 had not been sub-divided and
demarcated and physical possession thereof was not taken,
the concerned authorities prepared Kabja Hastantaran Praman
Patra dated 30.6.2001 and thereby took paper possession of
his land. He also claimed that plot No. 795/3 owned by him had C
not been notified, but the concerned authorities colluded with
Smt. Shashi Devi and other interested persons and reflected
him as tenure holder of that plot.
8. The thrust of the affidavits filed by Shri Mam Chand,
Executive Engineer and Shri Har Govind Swarnkar, Assistant . D
Engineer on behalf of the BOA was that after taking possession
of the acquired land, the BOA constructed roads and nalis, laid
pipelines for supply of water and also erected poles for electric
lines and plots carved out from the acquired land were allotted
to people belonging to different categories. In paragraphs 2, 3 · E
and 4 of his affidavit, Shri Har Govind Swarnkar, Assistant
Engineer, averred as under:
· "2. That present supplementary counter affidavit has been
necessitated as the petitioner through rejoinder affidavit to F
the counter affidavit filed on behalf of respondents no.1, 2
and 3 has brought on record the copies of Khasra for the
year 1407-1411 fasli.
3. That 1407 fasli is from 1st July, 1999 to 30th June, 2000
to 30th June, 2001. Similarly 1409 fasli is for the year ~
2001-02, 1410 fasli is for the year 2002-03, 1411 & 1412
fasli is for the year 2003-04 and 2004-05.
4. The perusal of these Khasras shows that there is no
entry of sowing any crop in 14.10-1412 fasli, namely no ~
448 SUPREME COURT REPORTS [2011] 7 S.C.R.
A crop was shown and they were, admittedly, not in
possession from July, 2002 towards. Possession has
been taken from petitioner on 30.6.2001. 30.6.2001
corresponds to end of 1408 fasli. It is thus clear that
petitioner was not in possession after 30.6.2001. Entry of
B sowing any crop in Khasra 1409 is patently erroneous
since in 1409 fasli i.e. from 1st July, 2001 petitioner was
not in possession. This entry is incorrect and no crop has
been sown after possession was taken on 30.6.2001 ."
9. In a separate affidavit, Shri Girish Kumar Sharma,
C Tehsildar (J), Banda, supported the stand taken by the BOA.
He categorically averred that possession of the acquired land
was handed over to BOA on 30.6.2001 for the purpose of
implementation of the residential scheme. Along with his
affidavit, Shri Girish Kumar Sharma annexed photostat copy of
D report dated 14.7.2001 prepared by Naib Tehsildar, Banda,
who had visited the spot and inspected the site.
10. Although, respondent No.1 did not question the
acquisition proceedings on the ground of non compliance of
E Section 7 of the Act, the Division Bench of the High Court suo
moto observed that the acquisition proceedings can be
quashed on the ground of non compliance of that section. The
Division Bench then referred to the entries made in the revenue
records and held that the acquisition proceedings will be
F deemed to have lapsed because neither physical possession
of the land was taken nor the award was passed within two
years as per the mandate of Section 11A. The High Court
distinguished the judgment of this Court in Satendra Prasad
Jain v. State of U.P. (1993) 4 SCC 369 by observing that
physical possession of the acquired land had not been taken
G for more than two years after publication of the declaration
issued under Section 6(1 ).
11. Shri P.S. Patwalia, learned senior counsel for the
appellant argued that the High Court was not at all justified in
H entertaining and allowing the writ petition filed after nine years
BANDA DEVELOPMENT AUTHORITY, BANDA v. 449
MOTi LAL AGARWAL AND ORS. [G.S. SINGHVI, J.]
of publication of the declaration issued under Section 6(1) and A
six years of the passing of award by the Special Land
Acquisition Officer and that too by ignoring that during the
intervening period the BDA carried out development, carved
out plots and allotted the same to the eligible applicants
including the members of economically weaker sections and B
also constructed flats for the economically weaker sections and
lower income groups. Shri Patwalia submitted that respondent ·
No.1 cannot justify belated filing of the writ petition on the
ground that he was prosecuting the case in the civil Court
because in the suit he had not prayed for quashing the c
notifications issued under Sections 4(1) and 6(1). Learned
senior counsel relied upon the judgments of this Court in
Satendra Prasad Jain v. State of U.P. (supra), Awadh Bihari
Yadav v. State of Bihar (1995) 6 SCC 31, Pratap v. State of
I Rajasthan (1996) 3 SCC 1, Allahabad Development Authority D
v. Nasiruzzaman (1996) 6 SCC 424, Government of A.P. v.
Ko/fut/a Obi Reddy (2005) 6 SCC 493 and argued that Section
11 A is not applicable to the cases in which the land is acquired
by invoking the emergency provisions contained in Section
17(1) and 17(4). He submitted that the High Court committed
serious error by quashing the acquisition proceedings on the E
premise that physical possession of the acquired land had not
been taken on 30.6.2001 Learned counsel referred to letter
dated 5.6.2000 vide which the BDA deposited a sum of
Rs.63,47,855.07 towards the compensation payable to the land.
owners and submitted that the exercise undertaken for taking F
possession of the acquired land by the concerned authorities .
of the State and delivery thereof to the BDA could not have
been brushed as.ide by the High Court by describing it as
symbolic/paper possession.
G
12. Shri W.H. Khan, learned senior counsel appearing for
respondent No.1 supported the order under challenge and
argued that the High Court rightly annulled the acquisition
proceedings because physical possession of the land was
taken only on 30.7.2002 and the award was passed after more H
450 SUPREME COURT REPORTS [2011] 7 S.C.R.
A than two years of publication of the declaration issued under
Section 6(1). Learned senior counsel relied upon Khasra Land
Records of Fasli years 1407, 1408 and 1409, which have been
filed with I.A. No.3 of 2011 to show that physical possession
of the acquired land continued with respondent No.1 till July
B 2002 and argued that the document prepared by the State
authorities showing delivery of possession to the BDA cannot
be made basis for recording a finding that physical possession
of the acquired land was taken on 30.6.2001. Learned senior
counsel relied upon the judgments of this Court in Nahar Singh
c v. State of U.P. (1996) 1 SCC 434, NTPC Ltd. v. Mahesh
Dutta (2009) 8 SCC 339 as also the judgments of the
Allahabad High Court in Anil Kumar v. State of U.P. (2008) 2
AWC 1832 and Sushi/ Kumar v. State of U.P. (1999) 1 AWC
764 and submitted that symbolic/paper possession taken by
D the State authorities on 30.6.2001 was not sufficient for relieving
the Land Acquisition Officer of the obligation to pass award
within two years of the last publication of the declaration issued
under Section 6(1 ). Shri Khan then referred to the judgments
of this Court in Vya/ikaval Housebuilding Cooperative Society
v. V. Chandrappa (2007) 9 SCC 304 and Babu Ram v. State
E of Haryana (2009) 1O sec 115 and argued that respondent
No.1 should not be non-suited on the ground of delay because
no such objection was raised before the High Court.
13. We have considered the respective submissions. In the
F suit filed by him, respondent No.1 had unequivocally declared
that he did not have any objection to the acquisition of land or
the plots which were subject matter of the acquisition. The only
grievance made by respondent No.1 was that the notification
had been issued without sub-dividing plot No. 795. He also
G claimed that defendant No.3 had delivered possession to
defendant No.4 on papers and they were trying to start
construction after taking possession of his land. This is evident
from paragraphs 5, 6, 8, 1O and 11 of the plaint, which are
extracted below:
H
BANDA DEVELOPMENT AUTHORITY, BANDA v. 451
MOTi LAL AGARWAL AND ORS. [G.S. SINGHVI, J.]
"5. That description of the disputed plot which has acquired A
by the Gazette Notification is given as plot no.795 Rakba
12 Bigha and 795/2 Rakba 5 Bigha 5 Biswa. At the time
of acquisition proceedings this fact came to liaht that olot
no. 795 has not been sub-divided. Without sub-division of
the plot it was not possible to acquire and give its B
compensation. Defendant No. 3 called for a report from
Tehsildar, Banda regard.ing plot no.795 on the basis of
possession and sub-division. After due inspection on the
spot Tehsildar sent its detailed report dated 30.3.2001 to
the defendant no. 3 stating clearly the sub-divided shares c
as follows:-
Sr.No. Plot no. Rakba Farmer Name
1. 795/1 06-16-10 Nathu, Shakhawat and Srikrishna
D
2. 795/2 09-08-05 Smt. Shashi Devi
3. 795/3 05-o5~oo Motilal
4. 795/4 04-03-05 Shiv Devi
5. 795/5 12-00-00 Nathu, Sakhawat and Srikrishna
E
6. That according to Land Record Manual the provision to
enter numbers in an account is to start numbering vis
1,2,3,4 from north-west to south east. In accordance to this
provision only the above said sub-division was done which
is also lawful. The plaintiff has no objection with the sub- F
division.
8. That it is important to clarify here that the plaintiff does
not have any objection to the acquisition proceedings or
the plot no.s which are subject to the acquisition. The G
plaintiff only states that acquisition be done only after sub-
division of 795 according to the rules. The proceedings
were initiated on the basis of the report of Tehsildar dated
30.3.2001 and the compensation for 795/2 was prepared
in the name of ShashiDevi and she was only shown as the I-
452 SUPREME COURT REPORTS [2011] 7 S.C.R.
A Kastkaar in the said land and accordingly Akar part 11 was
prepared and the notice under Section 14 was given to
Shashi Devi. After wards at any subsequent stage records
were manipulated and the plaintiff was shown as the
Kastkaar of 795/2. The plaintiff had filed several
B objections, personally met with the officials of the
defendants and given applications. lnspite of some
decisions of inquiries in favour of the plaintiff has not
been given any relief and due to the fact that defendant
no. 3 has delivered possession to defendant no. 4 on
c papers, the defendants are trying to start construction
after taking possession of the land of the plaintiff and are
shying away from their legal duty.
10. That in the interest of justice it is necessary that the
defendants be ordered that the acquisition and
D disbursement of compensation be done only after due
inspection of plot no.795 and thereafter numbering it in
accordance with law on the basis of possession. Because
the defendants are not paying any heed to the justified
claim of the plaintiff so this suit is being filed.
E
11. That the defendants are going to start construction
on the site very soon and they have demarcated the land
by embedding stones from which it is clear that they are
going to possess the disputed land. In all these
F circumstances the notice u/s 80 CPC cannot be served
upon the defendants and with the permission of the Hon'ble
Court, this suit is being filed without the notice."
(underlining is ours)
G The main and substantive prayer made in the plaint, which
is extracted below, also shows that respondent No.1 had not
questioned the acquisition proceedings:
"That the defendants be directed by order of Mandatory
BANDA DEVELOPMENT AUTHORITY, BANDA v, 453
MOTi LAL AGARWAL AND ORS. [G.S. SINGHVI, J.]
Injunction to start afresh the proceedings of acquisition and A
disbursement of compensation after sub-dividing and
numbering plot no. 795 in accordance with para no. 63 of
the Land Record Manual. In the alternative acquire the land
from all the account holders and thereby proportionally pay
them respective compensation." B
14. The above extracted portions of the plaint unmistakably
show that respondent No.1 had no complaint against the
acquisition of land or taking of possession by the State
Government and delivery thereof to the BOA and the only prayer C
made by him was that the defendants be directed to undertake
fresh acquisition proceedings after sub-dividing plot No. 795
so that he may get his share of compensation. He filed writ
petition questioning the acquisition proceedings after almost
9 years of publication of the declaration issued under Section
6(1) and about six years of the pronouncement of award by the D
Special Land Acquisition Officer. During this interregnum, the
BOA took possession of the acquired land after depositing
80% of the compensation in terms of Section 17(3A), prepared
the layout, developed the acquired land, carved out plots,
constructed flats for economically weaker sections of the E
society, invited applications and allotted plots and flats to the
eligible persons belonging to economically weaker sections as
also LIG, MIG and HIG categories.
Unfortunately, the High Court ignored all this and allowed the
writ petition on the specious ground that the acquired land did F
not vest in the State Government because physical possession
of the land belonging to respondent No.1 was not taken till
31.7.2002 and the award was not passed within two years as
per the mandate of Section 11A.
G
15. In our view, even if the objection of delay and laches
had not been raised in the affidavits filed on behalf of the BOA
and the State Government, the High Court was duty bound to
take cognizance of the long time gap of 9 years between the
issue of declaration under Section 6(1) and filing of the writ H
454 SUPREME COURT REPORTS [2011] 7 S.C.R
A petition and declined relief to respondent No.1 on the ground
that he was guilty of laches because the acquired land had been
utilized for implementing the residential scheme and third party
rights had been created. The unexplained delay of about six
years between the passing of award and filing of writ petition
B was also sufficient for refusing to entertain the prayer made in
the writ petition.
16. It is true that no limitation has been prescribed for filing
a petition under Article 226 of the Constitution but one of the
several rules of self imposed restraint evolved by the superior
C courts is that the High Court will not entertain petitions filed after
long lapse of time because that may adversely affect the settled/
crystallized rights of the parties. If the writ petition is filed
beyond the period of limitation prescribed for filing a civil suit
for similar cause, the High Court will treat the delay
D unreasonable and· decline to entertain the grievance of the
petitioner on merits. In State of Madhya Pradesh v. Bhei/al
Bhai AIR 1964 SC 1006, the Constitution Bench considered
the effect of delay in filing writ petitio:i under Article 226 of the
Constitution and held:
E
" ............ It has been made clear more than once that the
power to give relief under Article 226 is a discretionary
power. This is specially true in the case of power to issue
writs in the nature of mandamus. Among the several
F matters which the High Courts rightly take into
consideration in the exercise of that discretion is the delay
made by the aggrieved party in seeking this special
remedy and what excuse there is for
.1t.. ............................ It 1s
. not easy nor .1s 1"t des1ra
. ble to
lay down any Rule for universal application. It may however
G
be stated as a general Rule that if there has been
unreasonable delay the court ought not ordinarily to lend
its aid to a party by this extraordinary remedy of
mandamus .
H ... ... ... ... ... ... ... ... ... Learned counsel is right in his
BANDA DEVELOPMENT AUTHORITY, BANDA v. 455
MOTi LAL AGARWAL AND ORS. [G.S. SINGHVI, J.]
submission that the provisions of the Limitation Act do not A
as such apply to the granting of relief under Art 226. It
appears to us however that the maximum period fixed by
the legislature as the time within which the relief by a suit
in a Civil Court must be brought may ordinarily be taken
to be a reasonable standard by which delay in seeking B
remedy under Article 226 can be measured. The court may
consider the delay unreasonable even if it is less than the
period of limitation prescribed for a civil action for the
remedy but where the delay is more than this period, it will
almost always be proper for the court to hold that it is c
unreasonable."
17. In matters involving challenge to the acquisition of land
for public purpose, this Court has consistently held that delay
in filing the writ petition should be viewed seriously and relief
denied to the petitioner if he fails to offer plausible explanation D
for the delay. The Court has also held that the delay of even
few years would be fatal to the cause of the petitioner, if the
acquired land has been partly,or wholly utilised for the public
purpose.
E
18. In Ajodhya Bhagat v. ~fate of Bihar (1974) 2 SCC
501, this Court approved dismissal by the High Court of the writ
petition filed by the appellant for quashing the acquisition of his
land and observed:
"The High Court held that the appellants were guilty of F
delay and laches. The High Court relied on two important
facts. First, that there was delivery of possession. The
appellants alleged that it was a paper transaction. The High
Court rightly rejected that contention. Secondly; the High
Court said that the Trust invested several lakhs of rupees G
for the construction of roads and fr!aterial for ·
development purposes. The appellants were in full
knowledge of the same; The appellants qid not take any
steps. The High Court rightly said that to allow this type
of challenge to an acquisition of large block of land H
456 SUPREME COURT REPORTS [2011] 7 S.C.R.
A piecemeal by the owners of some of the plots in
succession would not be proper. If this type of challenge
is encouraged the various owners of small plots will come
up with writ petitions and hold up the acquisition
proceedings for more than a generation. The High Court
B rightly exercised discretion against the appellants. We do
not see any reason to take a contrary view to the discretion
exercised by the High Court."
(emphasis supplied)
c 19. In State of Rajasthan v. D.R. Laxmi (1996) 6 SCC
445, this Court referred to Administrative Law H.W.R. Wade
(7th Ed.) at pages 342-43 and observed:
"The order or action, if ultra vires the power, becomes void
D and it does not confer any right. But the action need not
necessarily be set at naught in all events. Though the order
may be void, if the party does not approach the Court within
reasonable time, which is always a question of fact and
have the order invalidated or acquiesced or waived, the
discretion of the Court has to be exercised in a reasonable
E
manner. When the discretion has been conferred on the
Court, the Court may in appropriate case decline to grant
the relief, even if it holds that the order was void. The net
result is that extraordinary jurisdiction of the Court may not
be exercised in such circumstances ....... ."
F
20. In Girdharan Prasad Missir v. State of Bihar (1980) 2
sec 83, the delay of 17 months was considered as a good
ground for declining relief to the petitioner.
G 21. In Municipal Corporation of Greater Bombay v.
Industrial Development Investment Co. Pvt. Ltd. (1996) 11
SCC 501, this Court held:
"It is thus well-settled law that when there is inordinate delay
in filing the writ petition and when all steps taken in the
H acquisition proceedings have become final, the Court
BANDA DEVELOPMENT AUTHORITY, BANDA v. 457
MOTi LAL AGARWAL AND ORS. [G.S. SINGHVI, J.]
should be loath to quash the notifications. The High Court A
has, no doubt, discretionary powers under Article 226 of
the Constitution to quash the notification under Section 4(1)
and declaration under Section 6. But it should be exercised
taking all relevant factors into pragmatic consideration.
When the award was passed and possession was taken, B
the Court should not have exercised its power to quash the
award which is a material factor to be taken into
consideration before exercising the power under Article
226. The fact that no third party rights were created in the
case is hardly a ground for interference. The Division c
Bench of the High Court was not right in interfering with
the discretion exercised by the learned Single Judge
dismissing the writ petition on the ground of laches."
22. In Urban Improvement Trust, Udaipur v. Bheru Lal
(2002) 7 sec 712, this Court reversed the order of the D
Rajasthan High Court and held that the writ petition filed for
quashing of acquisition of land for a residential scheme framed
by the appellant-Urban Improvement Trust was liable to be
dismissed on the ground that the same was filed after two
years. E
23. In Ganpatibai v. State of M.P (2006) 7 SCC 508, the
delay of 5 years was considered unreasonable and the order
passed by the High Court refusing to entertain the writ petition
was confirmed. In that case also the petitioner had initially filed F
suit challenging the acquisition of land. The suit was dismissed
in 2001. Thereafter, the writ petition was filed. This Court
referred to an earlier judgment in State of Bihar v. Dhirendra
Kumar (1995) 4 SCC 229 and observed:
"In State of Bihar ~·. Dhirendra Kumar this Court had G
observed that civil suit was not maintainable and the
remedy to question notification under Section 4 and the
declaration under Section 6 of the Act was by filing a writ
petition. Even thereafter the appellant, as noted above,
pursued the suit in the civil court. The stand that five years H
458 SUPREME COURT REPORTS [2011] 7 S.C.R.
A after the filing of the suit, the decision was rendered does
not in any way help the appellant. Even after the decision
of this Court, the appellant continued to prosecute the suit
till 2001, when the decision of this Court in 1995 had held
that suit was not maintainable."
B
24. In Sawaran Lata v. State of Haryana (2010) 4 SCC
532, the dismissal of writ petition filed after seven years of the
publication of declaration and five years of the award passed
by the Collector was upheld by the Court and it was observed:
c "In the instant case, it is not the case of the petitioners that
they had not been aware of the acquisition proceedings
as the only ground taken in the writ petition has been that
substance of the notification under Section 4 and
declaration under Section 6 of the 1894 Act had been
D published in the newspapers having no wide circulation.
Even if the submission made by the petitioners is
accepted, it cannot be presumed that they could not be
aware of the acquisition proceedings for the reason that
a very huge chunk of land belonging to a large number of
E tenure-holders had been notified for acquisition. Therefore,
it should have been the talk of the town. Thus, it cannot be
presumed that the petitioners could not have knowledge
of the acquisition proceedings."
25. In this case, the acquired land was utilized for
F implementing Tulsi Nagar Residential Scheme inasmuch as
after carrying out necessary development i.e. construction of
roads, laying electricity, water and sewer lines etc. the BDA
carved out plots, constructed flats for economically weaker
G sections and lower income group, invited applications for
allotment of the plots and flats from general as well as reserved
categories and allotted the same to eligible persons. In the
process, the BDA not only incurred huge expenditure but also
created third party rights. In this scenario, the delay of nine years·
from the date of publication of the declaration issued under
H Section 6(1) and almost six years from the date of passing of
BANDA DEVELOPMENT AUTHORITY, BANDA v. 459
MOTi LAL AGARWAL AND ORS. [G.S. SINGHVI, J.]
award should have been treated by the High Court as more A
than sufficient for denying equitable relief to respondent No.1.
26. The two judgments relied upon by the learned counsel
for respondent No.1 are not helpful to the cause of his client. In
Vya/ikaval Housebuilding Coop. Society v. V. Chandrappa B
(2007) 9 SCC 304, this Court held that where the acquisition
was found to be vitiated by fraud and mala fide, the delay in
filing the writ petition cannot be made a ground for denying relief
to the affected person. In Babu Ram v. State of Haryana
(supra), this Court held that the appellant cannot be denied relief
merely because there was some delay in filing the writ petition. C
The facts of that case were that 34 kanals 2 marlas of land
situated at Jind (Haryana) was acquired by the State
Government under Section 4 read with Section 17(2)(c) and
17(4) for construction of sewage treatment plant. Notification
under Section 4 was issued on 23.11.2005 and declaration D
under Section 6 was issued on 2.1.2006. Mitaso Educational
Society, Narwana, filed suit for injuncting the State from
constructing sewage treatment plant in front of the school. On
15.2.2006, the trial Court passed an order of injunction. In
another suit filed by one Jagroop similar order was passed by E
the trial Court. After some time, the appellant filed writ petition
under Article 226 of the Constitution. Before this Court it was
argued that relief should be denied to the appellant because
there was delay in filing the writ petition. Rejecting this
argument, the Court observed: F
"Since Section 5-A of the LA Act had been dispensed
with, the stage under Section 9 was arrived at within six
months from the date of the notice issued under Sections
4 and 17(2)(c) of the LA Act. While such notice was issued G
on 23-11-2005, the award under Section 11 was made on
23-5-2006. During this period, the appellants filed a suit
and thereafter, withdrew the same and filed a writ petition
in an attempt to protect their constitutional right to the
property. It cannot, therefore, be said that there was either H
460 SUPREME COURT REPORTS [2011] 7 S.C.R.
A any negligence or lapse or delay on the part of the
appellants."
27. De hors the aforesaid conclusion, we are convinced
that the premise on which the High .Court declared that the
B acquisition proceedings will be deemed to have lapsed
because the award was not passed within two years is ex facie
erroneous. Admittedly, the State Government had acquired the
land by issuing notification under Section 4 read with Section
17(1) and (4), which was followed by a declaration issued under
C Section 6(1) read with Section 17(1). By notification dated
7.9.1999, the Governor had directed Collector, Banda to take
possession of the acquired land on the expiration of 15 days
from the issue of notice under Section 9(1 ). In furtherance of
the direction given by the Collector, the concerned revenue
authorities took possession of the acquired land, which, as
D mentioned above, has already been utilized for implementing
Tulsi Nagar Residential Scheme. Though, respondent No.1
succeeded in convincing the High Court that physical
possession of his land had not been taken till 31.7.2002, after
carefully perusing the record, we are convinced that the finding
E recorded on this issue is unsustainable. In paragraphs 8 and
11 of the plaint filed by him in the Court of Civil Judge (Senior
Division), Banda, respondent No.1 had virtually admitted that
possession of the acquired land was with the BDA. If this was
not so, there was no occasion for him to make a grievance that
F the land had been demarcated by putting stones and the BDA
was in the process of raising construction. That apart,
respondent No. 1 did not deny the statements contained in the
affidavits filed before the High Court that the revenue authorities
visited the spot and made entries in the Field Book regarding
G delivery of possession. The photographs produced by the
parties before this Court show that after taking possession of
the acquired land, the BDA constructed roads.buildings etc.,
laid sewer lines and erected poles for electric lines. The
photographs also reveal that by taking advantage of the
H impugned order, respondent No.1 took possession of a portion
BANDA DEVELOPMENT AUTHORITY, BANDA v. 461
MOTi LAL AC3ARWAL AND ORS. [G.S. SINGHVI, J.]
of the land on which the BOA had already carried out A
development. All this is sufficient to discard the claim of
respondent No.1 that actual possession of the acquired land
had not been delivered to the BOA till July, 2002.
28. What should be the mode of taking possession of the B
land acquired under the Act? This question was considered in
Ba/want Narayan Bhagde v. M.D. Bhagwat (1976) 1 SCC 700.
Untwalia, J. referred to the provisions contained in Order XXI
Rules 35, 36, 95 and 96 of the Code of Civil Procedure,
decisions of different High Courts and opined that even the C
delivery of so called "symbolical" possession is delivery of
"actual" possession of the right, title and interest of the
judgment-debtor. Untwalia,J. further observed that ifthe property
is land over which there is no building. or structure, then delivery
of possession over the judgment-debtor's property becomes
c.omplete and effective against him the moment the delivery is D
effected by going upon the land. The Learned Judge went on
to say:
"When a public notice is published at a convenient place
or near the land to be taken stating that the Government E
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 F
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 G
taking of possession of the land under Section 16 or 17
(1) it vests absolutely in the Government free from all
incumbrances. 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 H
462 SUPREME COURT REPORTS [2011) 7 S.C.R.
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
B 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
c 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
D
vests in the Government.
(emphasis supplied)
Bhagwati J., (as he then was), speaking for himself and Gupta,
E J. disagreed with Untwalia, J. and observed:
" ......... 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
F 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
G cQndition 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
H fast rule laying down what act would be sufficient to
BANDA DEVELOPMENT AUTHORITY, BANDA v. 463
MOTi LAL AGARWAL AND ORS. [G.S. SINGHVI, J.]
constitute taking of possession of land: We should not, A
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 B
fallow and there was no crop on it at the material time,
the act of the Tehsildar 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 c
to constitute taking of possession. It appears that the
appellant was not present when this was done by the
Tehsildar, 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 D
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 E
of any fraudulent or collusive transaction of taking of mere
paper possession, without the occupant or the owner ever
coming to know of it.·
(emphasis supplied)
29. In Balmokand Khatri Educational and Industrial Trust
v. State of Punjab (1996) 4 SCC 212, the Court negatived the
argument that even after finalization of the acquisition
proceedings possession of the land continued with the
appellant and observed:
G
"It is seen that the entire gamut of the acquisition
·proceedings s!ood completed by 174-1976 by which date
possession of the land had been taken. No doubt, Shri ·
Parekh has contended that the appellant still retained their
possession. It is now well-settled legal position that it is H
464 SUPREME COURT REPORTS [2011] 7 S.C.R.
A difficult to take physical possession of the land under
compulsory acquisition. The normal mode of taking
possession is drafting the panchnama in the presence of
panchas and taking possession and giving delivery to the
beneficiaries is the accepted mode of taking possession
B of the land. Subsequent .thereto, the retention of
possession would tantamount only to illegal or unlawful
possession".
30. In P.K. Kalburqi .v. State of Karnataka (2005) 12 SCC
C 489, the Court referred to the observations made by Bhagwati,
J. in Ba/want Narayan Bhagde v. M.D. Bhagwat (supra) that
no hard and Jast rule can be laid down as to what act would be
sufficient to constitute taking of possession of the acquired land
· and observed that when there is no crop or structure on the land
only symbolic possession could be taken.
D
31. In NTPC v. Mahesh Dutta (2009) 8 SCC 339, the
Court rioted that appellant NTPC paid 80 per 'cent of the total
compensation in terms of Section 17(3A) and observed that it
is difficult to comprehend that after depositing that much of
E amount it had obtained possession only on a small fraction of
land.
32. In Sita Ram Bhandar Society v. Govt. of NCT, Delhi
(2009) 10 SCC 501 and Omprakash Verma v. State of Andhra
Pradesh (2010) 13 SCC 158, it was held that when possession
F · is to be taken of a large tract of land then it is permissible to
take possession by a properly executed panchnama. Similar
view was expressed in the recent judgment in Brij Pal Bhargava
v. State of UP 2011 (2) SCALE 692.
G 33. The judgment in Nahar Singh v. State of U.P. (supra)
on which reliance was placed by the learned senior counsel for
respondent No.1 is clearly distinguishable. In that case, the
Court had found that possession of the acquired land had not
·been taken by the State and the award was not passed even
H after two years from the date of coming into force of the Land
BANDA DEVELOPMENT AUTHORITY, BANDA v. 465
MOTi LAL AGARWAL AND ORS. [G.S. SINGHVI, JJ
Acquisition (Amendment) Act, 1984 whereby Section 11A was A
inserted in the Act.
34. The principles which can be culled out from the above
noted judgments are:
(i) No hard and fast rule can be laid down as to what act 8
would constitute taking of possession of the acquired land.
(ii) If the acquired land is vacant, the act of the concerned
State authority to go to the spot and prepare a panchnama
will ordinarily be treated as sufficient to constitute taking C
of possession.
(iii) If crop is standing on the acquired land or building/
structure exists, mere going on the spot by the concerned
authority will, by itself, be not sufficient for taking D
· possession. Ordinarily, in such cases, the concerned
authority will have to give notice to the occupier of the
building/structure or the person who tias 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 E
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 F
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. G
(v) If beneficiary of the acquisition is an agency/
instrumentality of the State and 80% of the total
compensation is deposited in terms of Section 17(3A) and
substantial portion of the acquired land has been utilised
H
466 SUPREME COURT REPORTS [2011) 7 S.C.R.
A in furtherance of the particular public purpose, then the
Court may reasonably presume that possession of the
acquired land has been taken.
35. In the light of the above discussion, we hold that the
action of the concerned State authorities to go to the spot and
8
prepare panchnama showing delivery of possession was
sufficient for recording a finding that actual possession of the
entire acquired land had been taken and handed over to the
BOA. The utilization of the major portion of the acquired land
for the public purpose for which it was acquired is clearly
C indicative of the fact that actual possession of the acquired land
had been taken by the BOA.
36. Once it is held that possession of the acquired land
was handed over to the BOA on 30.6.2001, the view taken by
o the High Court that the acquisition proceedings had lapsed due
to non-compliance of Section 11A cannot be sustained. In
Satendra Prasad Jain v. State of U.P. (supra), this Court
considered the applicability of Section 11A in cases involving
acquisition of land under Section 4 read with Section 17 and
E observed:
"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
F 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
G 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
H the provisions of Section 11-A, lapse. When Section 17(1)
BANDA DEVELOPMENT AUTHORITY, BANDA v. 467
MOTi LAL AGARWAL AND ORS. [G.S. SINGHVI, J.]
. is applied by reason of urgency, Government takes A
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 B
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.»
(emphasis supplied) C
37. The same view was reiterated in Awadh Bihari Yadav
v. State of Bihar (supra), Pratap v. State of Rajasthan (supra),
Parsinni v. Sukhi (1993) 4 SCC 375, Allahabad Development
Authority v. Nasiruzzaman (supra) and Government of A.P. v. D
Kol/utla Obi Reddy (supra).
38. In the result, the appeal is allowed. The impugned order
is set aside and the writ petition filed by respondent No.1 is
dismissed with cost quantified at Rs.1,00,000/-. Respondent E
No.1 shall deposit the amount of cost with the appellant within
a period of two months from today.
B.B.B. Appeal allowed.
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