PRAHLAD SINGH & ORS.versusUNION OF INDIA & ORS.

                        [2011] 5 S.C.R. 1002


A                    PRAHLAD SINGH & ORS.
                                  v.
                     UNION OF INDIA & ORS.
                  (Civil Appeal No. 3779 of 2011)
                           APRIL 29, 2011
B
       [G. S. SINGHVI AND ASOK KUMAR GANGULY, JJ.]

         Land Acquisition Act, 1894 - s. 16 - Acquisition of
    appellants' land for the purpose of urbanization - Objections
C   filed. by the appellants - Award passed by the Land
    Acquisition Collector - Appellants filed writ petitions
    challenging the acquisition proceedings on various grounds
    including the violation of Regional Plan 2001 wherein the
    acquired land is shown as part of the Green Belt/Green
D   Wedge; and that the appellants were in continuous
    possession of the acquired land and were cultivating the
    same - Dismissal of the writ petitions holding that once the
    land vested in the State Government, the appellants did not
    have the locus to challenge the acquisition proceedings - On
E   appeal, held: Section 16 lays down that once the Collector has
    made an award uls. 11, he can take possession of the
    acquired land - Simultaneously, the Section declares that
    upon taking possession by the Collector, the acquired land
    shall vest absolutely in the Government free from all
F   encumbrances - Vesting of land uls. 16 pre-supposes actual
    taking of possession and till that is done, legal presumption
    of vesting enshrined in s. 16 cannot be raised in favour of the
    acquiring authority - Documentary evidence showed that
    actual and physical possession of the acquired land is still
    with the appellants and respondent Nos. 3 to 6 have not
G   placed any document before this Court to show that actual
    possession of the acquired land was taken on the particular
    date - Therefore, the High Court was not right in holding that
    the acquired land would be deemed to have vested in the

H                               1002
  PRAHLAD SINGH & ORS. v. UNION OF INDIA &               1003
                   ORS.

State Government - Matter is remitted to the High Court for     A
disposal of the writ petition on merits.

    Ghaziabad Development Authority v. Delhi Auto and
General Finance (Pvt.) Ltd. (1994) 4 SCC 42; Municipal
Corporation of Greater Bombay v. Industrial Development
                                                                8
and Investment Company (P) Ltd. (1996) 11 SCC 501; C.
Padma v.. Deputy Secretary to the Government of Tamil Nadu
(1997) 2 SCC 627; Municipal Council, Ahmednagar v. Shah
Hyder Beig (2000) 2 SCC 48; Star Wire (India) Ltd. v. State
of Haryana (1996) 11 SCC 698; Swaika Properties (P} Ltd.        C
v. State of Rajasthan (2008) 4 SCC 695; Sawaran Lata v.
State of Haryana (2010) 4 SCC 532; Ba/want Narayan
Bhagde v. M.D. Bhagwat (1976) 1 SCC 700; Balmokand
Khatri Educational and Industrial Trust v. State of Punjab
(1996) 4 SCC 212; P.K. Ka/burqi v. State of Karnataka (2005)
12 SCC 489; NTPC v. Mahesh Dutta (2009) 8 SCC 339; Sita         D
Ram Bhandar Society v. Govt. of NCT, Delhi (2009) 10 SCC
501; Omprakash Verma v. State of Andhra Pradesh (2010)
13 SCC 158; Brij Pal Bhargava v State of UP. 2011 (2)
SCALE 692; Banda Development Authority, Banda v. Moti
Lal Agarwal decided by S.C. on 26.4.2011; Nahar Singh v.        E
State of U.P. (1996) 1 SCC 434 - referred to

                         Case Law Reference:
           (1994) 4 sec 42      Referred to    Para 5
                                                                F
           (1996) 11 sec so1    Referred to    Para 6, 19
           (1997) 2 sec 627     Referred to    Para 6, 20
           c2000) 2 sec 48      Referred to    Para 6, 21
                                                                G
           (1996) 11 sec 698    Referred to    Para 6
           (2008) 4 sec 695     Referred to    Para 6, 22
           c2010) 4 sec s32     Referred to    Para 6, 23
           (1976) 1 sec 100     Referred to    Para 10          H
   .....
    1004    SUPREME COURT REPORTS                 [2011] 5 S.C.R.


A       (1996) 4 sec 212          Referred to        Para 11
        (2005) 12 sec 489         Referred to        Para 12
        (2009) 8 sec 339          Referred to        Para 13
        (2009) 1o sec 501         Referred to        Para 14
8
        (2010) 13 sec 158         Referred to        Para 14
        2011 (2) SCALE 692        Referred to        Para 14
        (1996) 1 sec 434          Referred to        Para 15
c
        CIVIL APPELLATE JURISDICTION :Civil Appeal No.
    3779 of 2011.

      From the Judgment & Order dated 07.05.2010 of the High
  Court of Punjab & Haryana at Chandigarh in C.W. (P) No.
D 10396 of 2004.

        Rani Chhabra for the Appellants.

        Harikesh Singh for the Respondents.
E       The following order of the Court was delivered

                               ORDER

        Delay condoned.
F       Leave granted.

       Whetherthe acquired land can be treated to have vested
  in the State· Government under Section 16 of the Land
  Acquisition Act, 1894 (for short, "the Act") on the making of an
G award by the Collector though the actual and physical
  possession continues with the landowner is the question which
  arises for consideration in this appeal filed against the order
  of the Division Bench of the Punjab and Haryana High Court
  whereby the writ petition filed by the appellants questioning the
H acquisition of their land was dismissed.
   PRAHLAD SINGH & ORS. v. UNION OF INDIA &                  1005
                    ORS.

     In exercise of the power vested in it under Section 4(1) of      A
the Act, the Government of Haryana issued notification dated
17.4.2002 for the acquisition of the appellants' land along with
other parcels of land of village Baloure, Tehsil Bahadurgarh,
District Jhajjar for development and utilization thereof for
residential, commercial and institutional parts of different          B
sectors of Bahadurgarh.

      The predecessors of the appellant and other landowners
filed objections under Section 5-A(1) and prayed that their land
may not be acquired because they had developed the same               C
for agricultural activities like dairy, gardening etc. by investing
huge money. They claimed that the acquisition proceedings
were initiated without application of mind and there was no
justification to acquire fertile and irrigated land. They also
pointed out that land acquired for the same purpose in 1965
was still lying vacant and undeveloped. Another objection taken       D
by the predecessors of the appellant and other landowners was
that the area proposed to be acquired falls in the National
Capital Region under the National Capital Region Planning
Board Act, 1985 (for short, "the 1985 Act") and in the Regional
Plan prepared by the National Capital Region Planning Board           E
(for short, "the Board"), land in question has been shown as part
of Green BelUGreen Wedge and, as such, the same cannot be
acquired for residential, commercial and institutional purposes.
 In support of this plea, the landowners relied upon an order
passed by this Court in C.A. Nos.4384 and 4385 of 1994.               F

     Although, it is not clear from the record as to how the
Collector dealt with the objections and submitted
recommendations to the State Government, this much is evident
that the State Government issued declaration dated 10.4.2003          G
under Section 6 of the Act reiterating its resolve to acquire the
entire area notified under Section 4(1) on 17 .4.2002.
Thereafter, the Land Acquisition Collector passed award dated
25.6.2004.

                                                                      H
    1006    SUPREME COURT REPORTS                  r20111 5 s.6. R.


A      Immediately after pronouncement of the award, the
  predecessors of the appellant and other landowners filed 69
  writ petitions questioning the acquisition proceedings on
  various grounds including non-consideration of their objections,
  non-application of mind by the Collector and the concerned
B authorities of the State Government and violation of the
  provisions of the 1985 Act and Regional Plan 2001 prepared
  by the Board. They pleaded that being a participating State,
  the State of Haryana is bound to act in consonance with the
  provisions of the 1985 Act and it cannot acquire land in violation
c of Regional Plan 2001. They relied upon the judgment of this
  Court in Ghaziabad Development Authority v. Delhi Auto &
  General Finance (Pvt) Ltd. (1994) 4 SCC 42 and pleaded that
  the land which has been identified in Regional Plan 2001 as
  Green BelUGreen Wedge cannot be used for the purpose of
  urbanization. They also claimed that possession of the acquired
0
  land was still with them and they were cultivating the same.

       The Division Bench of the High Court did not deal with the
  grounds on which the appellants questioned the acquisition of
  their land including the one that the impugned acquisition was
E contrary to the provisions of the 1985 Act and Regional Plan
  2001 and dismissed the writ petitions by observing that once
  the land has vested in the State Government, the writ petitioners
  do not have the locus to challenge the acquisition proceedings.
  The Division Bench relied upon the judgments of this Court in
F Municipal Corporation of Greater Bombay v. Industrial .
  Development and Investment Company (P) Ltd. (1996) 11
  SCC 501, C. Padma v. Deputy Secretary to the Government
  of Tamil Nadu (1997) 2 SCC 627, Municipal Council,
  Ahmednagar v. Shah Hyder Beig (2000) 2 SCC 48, Star Wire
G (India) Ltd. v. State of Haryana (1996) 11 SCC 698, Swaika
  Properties (P) Ltd. v. State of Rajasthan (2008) 4 SCC 695
  and Sawaran Lata v. State of Harayana (2010) 4 SCC 532
  and held as under:

        "It is, thus, well settled that no writ petition would be
H
   PRAHLAD SINGH & ORS. v. UNION OF INDIA &                   1007
                    ORS.

    competent after passing of award because possession of             A
    land is taken and it is deemed to vest in the State
    Government free from all encumbrances. The petitioners
    would of course be entitled to compensation at the market
    value prevalent at the time of issuance of notification under
    Section 4 of the Act in accordance with the award subject          B
    to further remedies of reference etc. The petitioners would
    also be entitled to compensation for the user of the land
    from the date of possession to the date of notification
    issued under Section 4. Thus, no ground is made out to
    accept the contention raised by the petitioners and to             c
    quash the acquisition proceedings subject matter of these
    petitions."

     Mrs. Rani Chhabra, learned counsel appearing for the
appellants argued that the impugned order is liable to be set
aside because the premise on which the High Court dismissed            D
the writ petition, namely, vesting of the acquired land in the State
Government is ex facie erroneous. Learned counsel submitted
that at no point of time possession of the acquired land was
taken by the State authorities and, therefore, the same cannot
be treated to have vested in the State Government. Mrs.                E
Chhabra invited our attention to the assertion contained at page
'Y' of the List of Dates and documents marked Annexures-P5
and P6 to show that physical possession of the land is still with
the appellants. Learned counsel emphasised that the appellants
have been in continuous possession of the land and carrying            F
on agricultural operations and submitted that the High Court
gravely erred by declaring that the acquired land will be
deemed to have vested in the State Government under Section
16 of the Act. Mrs. Chhabra submitted that the High Court
should have examined the important issues raised by the                G
appellants including the violation of the provisions of the 1985
Act and Regional Plan 2001 prepared by the Board in which
the acquired land is shown as part of the Green Belt/Green
Wedge and decided the writ petition on merits keeping in view
the fact that the same remained pending for 10 years and               H
    1008    SUPREME COURT REPORTS                  [2011] 5 S.C.R.


A during that period the landowners had been undertaking
  agricultural operations.

         Learned counsel appearing for the State could not draw
    our attention to any material to show that actual and physical
    possession of the acquired land had been taken by the State
8
    authorities. He, however, argued that by virtue of Section 16 of
    the Act the acquired land will be deemed to have vested in the
    State Government because the Land Acquisition Collector has
    passed award on 25.6.2004.

C      We have given our serious thought to the entire matter and
  carefully examined the records. Section 16 lays down that once
  the Collector has made an award under Section 11, he can
  take possession of the acquired land. Simultaneously, the
  section declares that upon taking possession by the Collector,
D the acquired land shall vest absolutely in the Government free
  from all encumbrances. In terms of the plain language of this
  section, vesting of the acquired land in the Government takes
  place as soon as possession is taken by the Collector after
  passing an award under Section 11. To put it differently, the
E vesting of land under Section 16 of the Act presupposes actual
  taking of possession and till that is done, legal presumption of
  vesting enshrined in Section 16 cannot be raised in favour of
  the acquiring authority.

       Since the Act does not prescribes the mode and manner
F of taking possession of the acquired land by the Collector, it
  will be useful to notice some of the judgments in which this
  issue has been considered. In Ba/want Narayan Bhagde v.
  M.D. Bhagwat (1976) 1 SCC 700, Bhagwati J., (as he then
  was), speaking for himself and Gupta J. disagreed with
G Untwalia J., who delivered separate judgment 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
H       take actual possession of the land, since all interests in
PRAHLAD SINGH & ORS. v. UNION OF INDIA &              1009
                 ORS.

 the land are sought to be acquired by it. There can be no A
 question of taking "symbolical" possession in the sense
 understood by judicial decisions under the Code of Civil
 Procedure. Nor would possession merely on paper be
 enough. What the Act contemplates as a necessary
 condition of vesting of the land in the Government is the B
 taking of actual possession of the land. How such
 possession may be taken would depend on the nature of
 the land. Such possession would have to be taken as the
 nature of the land admits of. There can be no hard and fast
 rule laying down what act would be sufficient to constitute c
 taking of possession of land. We should not, therefore, be
 taken as laying down an absolute and inviolable rule that
 merely going on the spot and making a declaration by beat
 of drum or otherwise would be sufficient to constitute taking
 of possession of land in every case. But here, in our D
 opinion, since the land was lying 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 to constitute taking E
  of possession. It appears that the appellant was not
 present when this was done by the Tehsi/dar, but the
 presence of the owner or the occupant of the land is not
  necessary to effectuate the taking of possession. It is also
  not strictly necessary as a matter of legal requirement that F
  notice should be given to the owner or the occupant of the
  land that possession would be taken at a particular time,
 though. it may be desirable where possible, to give such
  notice before possession is taken by the authorities, as
 that would .eliminate the possibility of any fraudulent or G
  collusive transaction of taking of mere paper possession,
  without the occupant or the owner ever coming to know of .
  it."

                                      (emphasis supplied)     H
    1010    SUPREME COURT REPORTS                   [2011) 5 S.C.R.


A        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:
8
        "It is seen that the entire gamut of the acquisition
        proceedings stood completed by 17-4-1976 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
c       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
D       of the land. Subsequent thereto, the retention of
        possession would tantamount only to illegal or unlawful
        possession".

        In P.K. Ka/burqi v. State of Karnataka (2005) 12 SCC
E 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 fast 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
F only symbolic possession could be taken.

        In NTPC v. Mahesh Dutta (2009) 8 SCC 339, the Court
  noted 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
G amount it had obtained possession only on a small fraction of
  land.

      In Sita Ram Bhandar Society v. Govt. of NCT, Delhi
  (2009) 10 SCC 501 and Omprakash Verma v. State of Andhra
H Pradesh (2010) 13 SCC 158, it was held that when
   PRAHLAD SINGH & ORS. v. UNION OF INDIA &                 1011
                    ORS.

possession is to be taken of a large tract of land then it is       A
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.

     The same issue was recently considered in C.A. No. 3604
                                                              8
of 2011 - Banda Development Authority, Banda v. Moti Lal
Agarwal decided on 26.4.2011. After making reference to the
judgments in Ba/want Narayan Bhagde v. M.D. Bhagwat
(supra), Balmokand Khatri Educational and Industrial Trust v.
State of Punjab (supra), P.K. Kalburqi v. State of Karnataka C
(supra), NTPC v. Mahesh Dutta (supra), Sita Ram Bhandar
Society v. Govt. of NCT, Delhi (supra), Omprakash Verma v.
State of Andhra Pradesh (supra) and Nahar Singh v. State of
U.P. (1996) 1 SCC 434, this Court laid down the following
principles:                                          ·
                                                                    D
    "(i) No hard and fast rule can be laid down as to what act
    would constitute taking of possession of the acquired land.

    (ii) If the acquired land is vacant, the act of the concerned
    State authority to go to the spot and prepare a panchnama       E
    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 F
     possession. Ordinarily, in such cases, the concerned
     authority will have to give notice to the occupier of the
     building/structure or the person who has cultivated the land
     and take possession in the presence of independent
     witnesses and get their signatures on the panchnama. Of G
     course, refusal of the owner of the land or building/structure
   . may not lead to an inference. that the possession of the
     acquired land has not been taken.

                                                                    H
    1012     SUPREME COURT REPORTS                    [2011] 5 S.C.R.


A        (iv) If the acquisition is of a large tract of land, it may not
         be possible for the acquiring/designated authority to take
         physical possession of each and every parcel of the land
         and it will be sufficient that symbolic possession is taken
         by preparing appropriate document in the presence of
B        independent witnesses and getting their signatures on such
         document.

         (v) If beneficiary of the acquisition is an agency/
         instrumentality of the State and 80% of the total
         compensation is deposited in terms of Section 17(3A) and
c        substantial portion of the acquired land has been utilised
         in furtherance of the particular public purpose, then the
         Court may reasonably presume that possession of the
         acquired land has been taken."

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

        A reading of the Khasra Girdawari and Jamabandis,
  copies of which have been placed on record, shows that actual
  and physical possession of the acquired land is still with the
  appellants. Jamabandis relate to the year 2005-2006. Copies
G of notice dated 10/11.2.2011 issued by Uttar Haryana Bijli
  Vitran Nigam Ltd. relates to appellant No.1 - Prahlad Singh and
  this, prima facie, supports the appellants' assertion that physical
  possession of the land is still with them. Respondent Nos. 3 to
  6 have not placed any document before this Court to show that
H actual possession of the acquired land was taken on the
     PRAHLAD SINGH & ORS. v. UNION OF INDIA &                  1013
                      ORS.

 particular date. Therefore, the High Court was not right in           A
 recording a finding that the acquired land will be deemed to
 have vested in the State Government.

     The judgments, which have been referred to in the
 impugned order really do not have any bearing on the case in          8
 hand because in all those cases, the Court had found that
 possession of the acquired land had been taken. .        .·

        In Municipal Corporation 6f Greater Bombay v. lndust'rial
  Development and Investment Company (P) Ltd. (supra), this
  Court declined to interfere with the acquisition proceedings on      C
  the ground of delay. The facts of that case were that after
  preparation of the draft development plan for 'G' _Ward of the
  Bombay Municipal Corporation, notification dated 6.7.1972
  was issued under Section 126(2) of the Maharashtra Regional
  and Town Planning Act, 1966 for the acquisition of land needed       D
  for implementing the development plan. Respondent Nos.1 and
  2, who were in possession of the land as tenants, filed claim
  for compensation. They were heard by the competent authority
  in 1979. In the meanwhile, the Bombay Metropolitan Region
  Development Authority Act, 1974 ·was ehacted by the State            E
. Legislature and notifications were issued under that Act. In
  1979, City Survey No.503 was de-reserved from the earlier
  public purpose of locating the extension of Dharavi Sewage
  Purification Plant and the entire land was to be utilized for
  residential, commercial, para-commercial and social facilities       F
  by the local residents of the area. After the award was made
  by the Collector, possession of the acquired land was taken.
  The respondents filed writ petition after lapse of four years from
  the date of taking possession. The learned Single Judge
  dismissed the writ petition but the Division Bench allowed the       G
  appeal. This Court held that once the award was passed and
  possession was taken, the High Court should not have
  exercised its power to quash the award.

      In C. Padma v. Deputy Secretary to the Government of
                                                                       H
     1014    SUPREME COURT REPORTS                   [2011) 5 S.C.R.


A Tamil Nadu (supra). the Court held that once the acquired land
  vested in the State Government and compensation was paid
  after taking possession, the appellant was not entitled to
  question the acquisition proceedings.

8        Jn Municipal Council, Ahmednagar v. Shah Hyder Beig
    (supra), this Court reversed the judgment of the Bombay High
    Court on the ground that they had moved the Court after 21
    years of the issue of notifications under Section 6 and 16 years
    from the date. of making an award and taking of possession.
c        The same view was reiterated in Swaika Properties (P)
    Ltd. v. State of Rajasthan (supra). In that case, the writ petition
    was filed in 1989 after the award was passed and possession
    of the acquired land was taken.

D        In Sawaran Lata v. State of Harayana (supra), the
    landowners were denied relief because they had approached
    the High Court after 8 years of the notification issued under
    Section 4(1) and about 5 years of the passing of award and
    taking of possession.
E        In the result, the appeal is allowed. The impugned order
    is set aside and the matter is remitted to the High Court for
    disposal of the writ petition on merits. The parties are left to
    bear their own costs.

F N.J.                                               Appeal allowed.