Thermal Power Corpn.Ltd. Vs. Mahesh Dutta and Ors.  INSC 1229 (16 July
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.6228-6229
OF 2002 National Thermal Power Corporation Ltd. ...Appellant Versus Mahesh
Dutta and others ...Respondents
SINHA, J :
As all the cases involve similar questions of fact and law, they
were taken up for hearing together and are being disposed of by this common
We may, however notice the fact of the matter involved in Civil
Appeal Nos.6228-6229 of 2002.
Appellant is a Government of India Undertaking (NTPC). It is engaged in the
business of generation of electricity. It, for the purpose of setting up of a
Thermal Power Station at Village Sarna in the District of Ghaziabad in the
State of Uttar Pradesh, submitted a proposal to the State of Uttar Pradesh for
acquisition of lands situated in Village Dadri, Tehsil Ghaziabad, District
Pursuant or in furtherance of the said request, a Notification was
issued in terms of Section 4 of the Land Acquisition Act, 1894 (for short `the
Act') notifying the intention of State to acquire 105 Bighas 2 Biswas and 16
Biswanis (equivalent to 65.7125 acres) of lands situated at the aforementioned
village. It was published in the Official Gazette on 8th September, 1984
On the premise that generation of electricity was extremely urgent
and National Capital Region faced acute shortage of electricity, the emergency
provisions contained in Sections 17(1) and 17(4) of the Act were invoked.
declaration in terms of Section 6 of the Act was issued on 26th September,
1984. As the provisions of sub-section (4) of Section 17 of the Act were
applied, notices were issued on 27th October, 1984 under Section 9 of the Act
to the claimants for payment of compensation in respect of the acquired land.
However, admittedly prior to taking over possession of land under
the emergency powers, the Collector disbursed 80% of the amount of compensation
determined in terms of Section 17(3A) of the Act. A possession certificate was
issued by the Collector on 16th January, 1984, which reads as under :- "
POSSESSION CERTIFICATE LAND PERMANENT REQUIRED FOR THE PLANNED Industrial
Construction of NTPC Plant, District Ghaziabad through the NTPC Ltd., Ghaziabad
Certified that I on behalf of the Collector, Ghaziabad have on this day the
16.11.1984 taken over the possession of the land detailed below comprising an
area 105 B - 2Bs-16B or 6751.3 acres and (not legible (name not ligible) of
D.L.A.O's Office to hand over the possession of the same land to the NTPC Ltd.,
D.V. (not ligible), village Sarna, Muradnagar, Pargana Jalalabad, District,
(District Land Acquisition Officer, Ghaziabad) Notification u/s. 6 :-
7574/P-3-84-23-26 Land P-84__264-84 published on 29.9.84.
that I on behalf of the Manager, NTPC Ltd., Ghaziabad have to take over 3
possession of the abovementioned land through ______________________
today." Khasra numbers and area of the plots, possession whereof had been
taken, were specified therein.
Despite the same, the appellant contended that it had obtained the
requisitioned physical possession of land admeasuring 10.215 acres only and the
rest of the land continued to remain in possession of the land owners.
stated that the Ministry of Environment made recommendations that the choice of
place for setting up a Thermal Power Station, having regard to its proximity to
the National Capital being incorrect, the site thereof should be shifted.
Pursuant thereto or in furtherance thereof, the site of the plant was shifted
from Sarna, Murad Nagar to Dadri Tehsil.
the Land Acquisition Officer despite the same proceeded to determine the amount
of compensation payable for the acquisition of land.
An Award was made on 24th September, 1986.
reference in terms of Section 18 of the Act was made which was answered by the
learned Additional District Judge, Ghaziabad by a order dated 22nd October,
1993 determining the amount of compensation @ 4 Rs.155/- per sq. yards and
Rs.115/- per sq. yds. in respect of two references made separately before it. .
First appeals were preferred thereagainst in February, 1984 by
NTPC before the High Court. Inter alia on the premise that possession of the
entire land of 65.713 acres had not been obtained, the District Magistrate was
approached for issuance of a notification denotifying the acquisition of the
balance area i.e. for withdrawal of acquisition of land admeasuring 55.498
By its letter dated 24th February, 1986, NTPC submitted a proposal
as regards denotification of the land, which reads as under :- " Kindly
refer to our letter No.08/GM/13 dated January 8, 1986, on the above subject,
addressed to District Land Acquisition Officer and copy endorsed to you (copy
enclosed for ready reference). In continuation of para 2 of that letter this is
to inform you that there are five cases in which delivery of possession is
shown to have been given. These are of villages Sarna, Khurrampur, Sultanpur,
Jalalpur and Mohiuddinpur. In Sarna, advance compensation has been paid to most
of the persons affected while in Khurrampur only a few persons have been paid
the advance compensation. In cases of Sultanpur, Jalalpur and Khurrampur
villages - we did not get physical possession and the land owners continue to
be in possession their lands even now. In many cases, their crops are standing
on the land in question. Further, it may be added that the Land 5 Acquisition
Amendment Act 1984 came into force w.e.f. 24.9.1984. As per sub-section (3A) to
Section 17 of the Land Acquisition Act it is made obligatory that before taking
possession of any land the Collector shall pay 80% of the compensation to the
interested persons. This mandatory provision not having been complied with, the
delivery of possession on paper has no legal force and that is why land owners
did not allow NTPC to take possession of these lands.
possession without such 80% compensation are likely to be vitiated even if the
land is proposed to be acquired. Similarly, in the village of Mohiuddinpur
Hissali, no compensation has been paid.
understood that some mutations in respect of lands of these villages in favour
of NTPC have been made in the revenue records.
there appears to be some discrepancy.
legally valid possession has been given to NTPC nor land owners have allowed
NTPC to take possession of these lands, mutations in revenue records made need
to be set right by necessary correction proceedings.
therefore, requested that the possession certificates of these villages may
please be cancelled and original entries in the revenue records may be ordered
to be restored.."
The said proposal was forwarded to the Commissioner and Director
(Land Acquisition), Directorate, Board of Revenue by the District Magistrate by
his letter dated 11th August, 1994.
issued a clarification to the Commissioner and Director, Board of Revenue, by
its letter dated 13th August, 2004. On or about 18th August, 1994 an inspection
was carried by the Land Acquisition Amin, Naib Tehsildar together with the
representatives of NTPC and as per the report submitted pursuant thereto, the
appellant is said to have been found in possession of only 10.215 acres of
On 11th November, 1994 the State of U.P. issued a Notification in
terms of Section 48 of the Act.
respondents filed a writ application before the High Court on or about 29th
August, 1995 and a Division Bench of the High Court stayed the consequential
effect of the Notification dated 11th November, 1994. On or about 9th
September, 1997 the appellant filed an application for vacating the stay which
having been refused, a Special Leave Petition was filed before this Court,
which was dismissed by an order dated 14th October, 1997.
of a judgment and order dated 21st July, 1998 the said writ petition was
Indisputably on the same day, the same Bench passed judgment in
the First Appeals preferred by appellant (NTPC) against the order of the 7
Reference Court dated 22nd October, 1993. We shall deal with the said matter
Mr. Raju Ramachandran, learned senior counsel appearing on behalf
of the NTPC would contend that although in the event possession had been taken
by the Collector from the land owners, Section 48 of the Act will have no
application but in view of the fact that possession of 55.498 acres of land had
not been delivered in favour of NTPC and merely a symbolic possession had been
delivered, the High Court must be held to have committed a serious error in
passing the impugned judgment.
Mr. Ranjit Kumar, learned senior counsel appearing on behalf of
the respondents, on the other hand, would contend :- (i) Having regard to the
provisions contained in Section 17(1) of the Act, as the vesting of the
acquired land takes place immediately, the impugned Notification dated 1th
November, 1994 has rightly been held to be illegal and without jurisdiction.
Having regard to the certificate of possession issued by the Collector on 16th
November, 1984 under the provisions of the Act, stating possession of entire
land had been taken and the details thereof having been mentioned in the said
certificate itself, it is too 8 late in the day for the appellant/NTPC to
contend that possession of a major portion of the land had was not taken over.
fact that the possession of the entire land had been taken over not only would
appear from the materials brought on record during the land acquisition
proceedings culminating in passing of the Award but also from the award of the
Reference Court as also the judgment of the High Court in the First Appeals and
in that view of the matter, it would not be correct to contend that the High
Court could not have entered into such disputed questions of fact, particularly
when the validity or otherwise of the proceedings is not in question.
A Notification under Section 4 of the Act was issued. Emergency
provisions contained in Section 17 of the Act were resorted to. Sub-sections
(1), (3A) and 4 of the Act read as under :- "17. Special powers in cases
of urgency.- (1) In cases of urgency, whenever the Appropriate Government so
directs, the Collector, though no such award has been made, may, on the
expiration of fifteen days from the publication of the notice mentioned in
section 9, sub-section (1), 1 [take possession of any waste or arable land
needed for a public purpose]. Such land shall thereupon vest 9 absolutely in
the Government, free from all encumbrances.
taking possession of any land under sub-section (1) or sub-section (2), the
Collector shall, without prejudice to the provisions of sub- section (3),-- (a)
tender payment of eighty per centum of the compensation for such land as
estimated by him to the persons interested entitled thereto, and (b) pay it to
them, unless prevented by some one or more of the contingencies mentioned in
section 31, sub-section (2), and where the Collector is so prevented, the
provisions of section 31, sub-section (2), (except the second proviso thereto),
shall apply as they apply to the payment of compensation under that section.
the case of any land to which, in the opinion of the appropriate Government,
the provisions of sub-section (1) or sub-section (2) are applicable, the
appropriate Government may direct that the provisions of section 5A shall not
apply, and, if it does not so direct, a declaration may be made under section 6
in respect of the land at any time 4 [after the date of the publication of the
notification under section 4, sub-section (1)."
Indisputably the said provisions were been taken recourse to and,
thus, the lands under acquisition vested absolutely in the Government.
Concedingly, a declaration in terms of Section 6 of the Act was
issued whereafter notices to persons interested under Section 9 thereof had
also been issued. Award had also been published.
16 of the Act providing for taking over possession of the land after making the
Award would not be applicable in this case as possession is said to have
already been taken over in terms of sub-section (1) of Section 17 thereof.
It is in
the aforementioned backdrop of factual matrix, the power of the State to
withdraw the Notification of acquisition as envisaged under Section 48 of the
Act falls for our consideration.
provision is as under :- "Section 48 - Completion of acquisition not
compulsory, but compensation to be awarded when not completed (1) Except in the
case provided for in section 36, the Government shall be at liberty to withdraw
from the acquisition of any land of which possession has not been taken.
Whenever the government withdraws from any such acquisition, the Collector
shall determine the amount of compensation due for the damage suffered by the owner
in consequence of the notice or of any proceedings thereunder, and shall pay
such amount to the person interested, together with all costs reasonably
incurred by him in the 11 prosecution of the proceedings under this Act
relating to the said land.
provisions of Part III of this Act shall apply, so far as may be, to the
determination of the compensation payable under this section."
It is a well settled proposition of law that in the event
possession of the land, in respect whereof a Notification had been issued, had
been taken over, the State would be denuded of its power to withdraw from the
acquisition in terms of Section 48 of the Act.
Whether actual or symbolic possession had been taken over from the
land owners is essentially a question of fact. Taking over of possession in
terms of the provisions of the Act would, however, mean actual possession and
not symbolic possession. The question, however, is as to whether the finding of
fact arrived at by the High Court that physical possession, indeed, had been
taken over by the Collector is correct or not.
We have noticed hereinbefore the background facts. The emergency
provisions were resorted to. Even 80% of the compensation had been paid way
back in 1984. Had possession of the vacant land been not taken, the question of
payment of 80 % of compensation would not have arisen. All other legal
requirements to invoke the said provision have been complied with.
Mr. Raju Ramachandran, however, would draw our attention to a
letter dated 24.2.1986 issued by the appellant to the District Magistrate to contend
that even payment of 80% of the compensation had not made and, thus, the
purported delivery of possession was merely a papr transaction.
attention had further been drawn to the written statement filed on behalf of
the appellant before the reference court, which reads as under :
out of the total acquired area in question the respondent utilized only a
portion of the land by construction of their Satellite building while remaining
area could not be put into use by the respondent, since the land is in actual
physical possession of the land owners and they are deriving all the benefits
from the land thereof and the respondent is having only a symbolic possession
over the same."
We, however, have not been able to persuade ourselves to agree
with the aforementioned submissions. The Officers of the appellant themselves
were parties in regard to the process of actual physical possession obtained on
its behalf by the Collector.
Even in the award made by the Special Land Acquisition Collector,
the invocation of the provisions of Section 17 of the Act as also obtaining of
possession of the land in question had clearly been found.
notice some of the statements recorded therein :
"10. Whether Sec.17 is in force : Yes
of the right : 16.11.84 XXX XXX XXX
Amount of Interest : 9% payable from 16.11.84 i.e. from the date of acquisition
15% further from that date payable to and owner."
quote hereinbelow the relevant portions from the said award :
12% additional from 8.9.84 i.e. from the date of notification till date of
possession i.e. on 16.11.84 : Rs.1,46,531.69"
From a perusal of the award, therefore, it is evident that not
only the provisions of Section 17 of the Act were found to have been
implemented but even interest had been granted from the date of acquisition,
namely, from the date of taking over of possession. Interest had also been
granted in terms of Section 23A of the Act from the date of notification till
the date of actual taking over of possession. The Reference Court also, in its
judgment, held :
The petitioners will get 12% per annum as additional amount on the above market
value for the period commencing from the date of 14 publication of the
notification u/s. 4(1) dated 6.9.84 to the date of possession dated
In the memo of appeal preferred by the appellant before the High
Court a statement was made that the possession of the land was taken by
invoking Section 17 of the Act on 16.11.1984 and, thus, interest at the rate of
15% per annum on the excess amount under the provisions of Section 28 of the
Act would be payble only in the case where such excess payment had not been
made before the expiry of one year period from the date on which the possession
has been taken and as determined by the Court. In view of the stand taken by
the appellant before the Land Acquisition Authorities as also the reference
court and the High Court, in our opinion, it is estopped and precluded from
raising a plea contra. The Reference Court, in paragraph 4 of its judgment,
also noticed that the possession of the land has been taken over on 16.11.1984.
No objection was taken before the Reference Court that possession had not been
taken and, thus, interest was not payable. No issue was also framed in that
before us, the only ground taken was that the land could not be put to use
which is a non-issue.
Strong reliance has been placed upon a decision of this Court in
Balwant Narayan Bhagde v. M.D. Bhagwat, [ AIR 1975 SC 1967 = (1976) 1 SCC 70 ],
wherein it has been held :- "We think it is enough to state that when the
Government proceeds to take possession of the land acquired by it under the
Land Acquisition Act, 1894, it must take actual possession of the land, since
all interests in the land are sought to be acquired by it. There can be no
question of taking "symbolical" possession in the sense understood by
judicial decisions under the Code of Civil Procedure. Nor would possession
merely on paper be enough. What the Act contemplates as a necessary condition
of vesting of the land in the Government is the taking of actual possession of
the land. How such possession may be taken would depend on the nature of the
land. Such possession would have to be taken as the nature of the land admits
of. There can be no hard and fast rule laying down what act would be sufficient
to constitute taking of possession of land. We should not, therefore, be taken
as laying down an absolute and inviolable rule that merely going on the spot
and making a declaration by beat of drum or otherwise would be sufficient to
constitute taking of possession of land in every case. But here, in our
opinion, since the land was lying fallow and there was no crop on it at the
material time, the act of the 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 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 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 16 of any fraudulent or collusive transaction of
taking of mere paper possession, without the occupant or the owner ever coming
to know of it."
decision, therefore, itself is an authority for the proposition that no
absolute rule in this behalf can be laid down.
& Toubro Ltd. v. State of Gujarat & Ors. [(1998) 4 SCC 387] and P.K.
Kalburqui v. State of Karnataka & Ors. [(2005) 12 SCC 489], the same view
has been reiterated.
These decisions, as noticed hereinbefore, do not lay down an absolute
rule. The question as to whether actual physical possession had been taken in
compliance of the provisions of Section 17 of the Act or not would depend upon
the facts and circumstances of each case.
When possession is to be taken over in respect of the fallow or
Patit land, a mere intention to do so may not be enough. It is, however, the
positive stand by the appellant that the lands in question are agricultural
land and crops used to be grown therein. If the lands in question are
agricultural lands, not only actual physical possession had to be taken but
also they were required to be properly demarcated. If the land had standing
crops, as has been contended by Mr. Raju Ramachandran, steps in relation
thereto were required to be taken by the Collector. Even in the said
certificate of 17 possession, it had not been stated that there were standing
crops on the land on the date on which possession was taken. We may notice that
delivery of possession in respect of immoveable property should be taken in the
manner laid down in Order XXI Rule 35 of the Code of Civil Procedure.
It is beyond any comprehension that when possession is purported
to have been taken of the entire acquired lands, actual possession would be
taken only of a portion thereof. The certificate of possession was either
correct or incorrect. It cannot be partially correct or partially incorrect.
the possession had actually been delivered or had not been delivered.
be accepted that possession had been delivered in respect of about 10 acres of
land and the possession could not be taken in respect of the rest 55 acres of
land. When the provisions of Section 17 are taken recourse to, vesting of the
land takes effect immediately.
Another striking feature of the case is that all the actions had
been taken in a comprehensive manner. The Collector in his certificate of
possession dated 16th November, 1984 stated that the possession had been taken
over in respect of the entire land; the details of the land and the area thereof
had also been mentioned in the certificate of possession; even NTPC in its
letter dated 24th February, 1986 stated that possession had not been delivered
only in respect of land situated in four villages mentioned therein.
Indisputably NTPC got possession over 10.215 acres of land. It raised
constructions thereover. It is difficult to comprehend that if the NTPC had
paid 80% of the total compensation as provided for under sub-section (3A) of
Section 17 of the Act, out of 65.713 acres of land it had obtained possession
only in respect of about 10.215 acres of land and still for such a long time it
kept mum. Ex-facie, therefore, it is difficult to accept that merely symbolic
possession had been taken.
Governor of Hmachal Pradesh & Anr. v. Sri Avinash Sharma [(1970 (2) SCC
149], this Court has stated the law, thus :
these observations do not assist the case of the appellant. It is clearly
implicit in the observations that after possession has been taken pursuant to a
notification under Section 17(1) the land is vested in the Government, and the
notification cannot be cancelled under Section 21 of the General Clauses Act,
nor can the notification be withdrawn in exercise of the powers under Section
48 of the Land Acquisition Act. Any other view would enable the State
Government to circumvent the specific provision by relying upon a general
power. When possession of the land is taken under Section 17(1), the land vests
in the Government. There is no provision by which land statutorily vested in
the Government reverts to the original owner by mere cancellation of the
said view was affirmed in Satendra Prasad Jain & Ors. v. State of U.P.
& Ors. [(1993) 4 SCC 369], in the context of applicablility of Section 11A
of the Act, it was stated :
Section 17(1) is applied by reason of urgency, Government takes possession of
the land prior to the making of the award under Section 11 and thereupon the
owner is divested of the title to the land which is vested in the Government.
17(1) states so in unmistakable terms.
Section 11-A can have no application to cases of acquisitions under Section 17
because the lands have already vested in the Government and there is no
provision in the said Act by which land statutorily vested in the Government
can revert to the owner."
& Anr. v. State of Rajasthan & Ors. [(1996) 3 SCC 1], a Three Judge
Bench of this Court opined as under :
The provisions of sub-section (4) of Section 52 are somewhat similar to Section
17 of the Land Acquisition Act, 1894. Just as publication of a notification
under Section 52(1) vests the land in the State, free from all encumbrances, as
provided by Section 52(4), similarly when possession of land is taken under
Section 17(1) the land vests absolutely in the Government free from all
encumbrances. A question arose before this Court that if there is a
non-compliance with the provisions of Section 5-A and an award is not made in
respect to the land so acquired, would the acquisition proceedings lapse. In
Satendra Prasad Jain v. State of U.P. this Court held that once possession had
been taken under Section 17(1) and the land vested in the Government then the
20 Government could not withdraw from acquisition under Section 48 and the
provisions of Section 11- A were not attracted and, therefore, the acquisition
proceedings would not lapse on failure to make an award within the period
prescribed therein. It was further held that non-compliance of Section 17(3-
A), regarding part payment of compensation before taking possession, would also
not render the possession illegal and entitle the Government to withdraw from
acquisition. The aforesaid principle has been reiterated by this Court in P.
Chinnanna v. State of A.P. and Awadh Bihari Yadav v. State of Bihar. In view of
the aforesaid ratio it follows that the provisions of Section 11-A are not
attracted in the present case and even if it be assumed that the award has not
been passed within the stipulated period, the acquisition of land does not come
to an end."
Sanjeevnagar Medical & Health Employees' Cooperative Housing Society v.
Mohd. Abdul Wahab & Ors. [(1996) 3 SCC 600], it was held :
Satendra Prasad Jain v. State of U.P.6, the question arose: whether
notification under Section 4(1) and the declaration under Section 6 get lapsed
if the award is not made within two years as envisaged under Section 11-A? A
Bench of three Judges had held that once possession was taken and the land
vested in the Government, title to the land so vested in the State is subject
only to determination of compensation and to pay the same to the owner.
Divesting the title to the land statutorily vested in the Government and
reverting the same to the owner is not contemplated under the Act. Only Section
48(1) gives power to withdraw from acquisition that too before possession is
taken. That question did not arise in 21 this case. The property under
acquisition having been vested in the appellants, in the absence of any power
under the Act to have the title of the appellants divested except by exercise
of the power under Section 48(1), valid title cannot be defeated. The exercise
of the power to quash the notification under Section 4(1) and the declaration
under Section 6 would lead to incongruity."
Yet again, in Tamil Nadu Housing Board v. A. Viswam(Dead) by Lrs. [(1996)
8 SCC 259], this Court has categorically laid down that when the accepted mode
of taking possession of the acquired land is resorted to, that would constitute
taking possession of the land.
principle has been reiterated in Bangalore Development Authority & Ors. v.
R. Hanumaiah & Ors. [(2005) 12 SCC 508], in the following terms :
In our considered view, the Division Bench has erred in holding that the State
Government could release the lands in exercise of its power under Section 48 of
the Land Acquisition Act, 1894 from the acquisition."
further been held :
The possession of the land in question was taken in the year 1966 after the
passing of the award by the Land Acquisition Officer. Thereafter, the land
vested in the Government which was then transferred to CITB,
predecessor-in-interest of the 22 appellant. After the vesting of the land and
taking possession thereof, the notification for acquiring the land could not be
withdrawn or cancelled in exercise of powers under Section 48 of the Land
Acquisition Act. Power under Section 21 of the General Clauses Act cannot be
exercised after vesting of the land statutorily in the State Government."
State of Kerala & Ors. v. V.P. Kurien & Ors. [(2005) 11 SCC 493]}.
The High Court, therefore, in our opinion, was correct in its
We may now consider the question as to whether the issue as to
whether possession of the acquired land had actually been taken over or not
being a disputed question of fact could not have gone into by the High Court.
It is not a case where oral evidence was required to be taken. There is no law
that the High Court is denied or debarred from entering into a disputed
question of fact. The issue will have to be determined keeping in view the fact
situation obtaining in each case. If a disputed question can be determined on
the basis of the documents and/or affidavit, the High Court may not ordinarily
refuse to do so. In a given case, it may also examine witnesses.
Smt. Gunwant Kaur & Ors. v. Municipal Committee, Bhatinda & Ors.
[(1969) 3 SCC 769], it was held :
The High Court observed that they will not determine disputed question of fact
in a writ petition. But what facts were in dispute and what were admitted could
only be determined after an affidavit in reply was filed by the State. The High
Court, however, proceeded to dismiss the petition in limine. The High Court is
not deprived of its jurisdiction to entertain a petition under Article 226
merely because in considering the petitioner's right to relief questions of
fact may fall to be determined. In a petition under Article 226 the High Court
has jurisdiction to try issues both of fact and law. Exercise of the
jurisdiction is, it is true, discretionary, but the discretion must be
exercised on sound judicial principles. When the petition raises questions of
fact of a complex nature, which may for their determination require oral
evidence to be taken, and on that account the High Court is of the view that
the dispute may not appropriately be tried in a writ petition, the High Court
may decline to try a petition. Rejection of a petition in limine will normally
be justified, where the High Court is of the view that the petition is
frivolous or because of the nature of the claim made dispute sought to be
agitated, or that the petition against the party against whom relief is claimed
is not maintainable or that the dispute raised thereby is such that it would be
in appropriate to try it in the writ jurisdiction, or for anologous reasons.
the averments made in the petition filed by the appellants it is clear that in
proof of a large number of allegations the appellants relied upon documentary
evidence and the only matter in respect of which conflict of facts may possibly
24 arise related to the due publication of the notification under Section 4 by
the present case, in our judgment, the High Court was not justified in
dismissing the petition on the ground that it will not determine disputed
question of fact. The High Court has jurisdiction to determine questions of
fact, even if they are in dispute and the present, in our judgment, is a case
in which in the interests of both the parties the High Court should have
entertained the petition and called for an affidavit in reply from the
respondents, and should have proceeded to try the petition instead of
relegating the appellants to a separate suit."
direction has been issued, as noticed hereinbefore, even in a land acquisition
again, in Babubhai Muljibhai Patel v. Nandlal Khodidas Barot [(1974) 2 SCC
706], this Court has held :
It is not necessary for this case to express an opinion on the point as whether
the various provisions of the Code of Civil Procedure apply to petitions under
Article 226 of the Constitution.
141 of the Code, to which reference has been made, makes it clear that the
provisions of the Code in regard to suits shall be followed in all proceedings
in any court of civil jurisdiction as far as it can be made applicable. The
words "as far as it can be made applicable" make it clear that, in
applying the various provisions of the Code to proceedings other than those of
a suit, the court must take into account the nature of those proceedings and
the relief sought. The object of 25 Article 226 is to provide a quick and
inexpensive remedy to aggrieved parties. Power has consequently been vested in
the High Courts to issue to any person or authority, including in appropriate
cases any government, within the jurisdiction of the High Court, orders or
writs, including writs in the nature of habeas corpus, mandamus, prohibition,
quo warranto and certiorari. It is plain that if the procedure of a suit had
also to be adhered to in the case of writ petitions, the entire purpose of
having a quick and inexpensive remedy would be defeated. A writ petition under
Article 226, it needs to be emphasised, is essentially different from a suit
and it would be incorrect to assimilate and incorporate the procedure of a suit
into the proceedings of a petition under Article 226. The High Court is not
deprived of its jurisdiction to entertain a petition under Article 226 merely
because in considering the petitioner's right of relief, questions of fact may
fall to be determined. In a petition under Article 226 the High Court has
jurisdiction to try issues both of fact and law. Exercise of the jurisdiction
is no doubt discretionary, but the discretion must be exercised on sound
judicial principles. When the petition raises complex questions of fact, which
may for their determination require oral evidence to be taken, and on that
account the High Court is of the view that the dispute should not appropriately
be tried in a writ petition, the High Court may decline to try a petition (see
Gunwant Kaur v. Bhatinda Municipality). If, however, on consideration of the
nature of the controversy, the High Court decides, as in the present case, that
it should go into a disputed question of fact and the discretion exercised by
the High Court appears to be sound and in conformity with judicial principles,
this Court would not interfere in appeal with the order made by the High Court
in this respect."
Balmokand Khatri (supra), it has been observed :- "4. 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 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
of the land. Subsequent thereto, the retention of possession would tantamount
only to illegal or unlawful possession."
Recently the question came up for consideration before a Division
Bench of this Court in T.N. Housing Board v. Keeravani Ammal, [ (2007) 9 SCC
255 ], wherein it was held :- "9. On the facts pleaded it is doubtful
whether the Government can withdraw from the acquisition, since the case of the
State and the Housing Board is that possession has been taken and plans
finalised to fulfil the purpose for which the acquisition was made. There is no
plea in the writ petition that a request for reconveyance was made in terms of
Section 48-B of the Act as amended in the State of Tamil Nadu."
furthermore held :- "15. We may also notice that once a piece of land has
been duly acquired under the Land Acquisition Act, the land becomes the
property of the State.
can dispose of the property thereafter or convey it to anyone, if the land is
not needed for 27 the purpose for which it was acquired, only for the market
value that may be fetched for the property as on the date of conveyance. The
doctrine of public trust would disable the State from giving back the property
for anything less than the market value. In State of Kerala v. M. Bhaskaran
Pillai2 in a similar situation, this Court observed:
question emerges whether the Government can assign the land to the erstwhile
owners? It is settled law that if the land is acquired for a public purpose,
after the public purpose was achieved, the rest of the land could be used for
any other public purpose. In case there is no other public purpose for which
the land is needed, then instead of disposal by way of sale to the erstwhile
owner, the land should be put to public auction and the amount fetched in the
public auction can be better utilised for the public purpose envisaged in the
Directive Principles of the Constitution. In the present case, what we find is
that the executive order is not in consonance with the provision of the Act and
is, therefore, invalid. Under these circumstances, the Division Bench is well
justified in declaring the executive order as invalid. Whatever assignment is
made, should be for a public purpose. Otherwise, the land of the Government
should be sold only through the public auctions so that the public also gets
benefited by getting a higher value."
Furthermore the Collector under the Act was acting as a statutory
authority. When possession has been shown to have been taken over not only in
terms of sub-section (1) of Section 17 of the Act but also by grant of the
certificate and other documents, illustration (e) of Section 114 of the
Evidence Act 1872, must be held to be applicable. Once such a presumption is
drawn the burden would be on the State to prove the contra. The burden of proof
could be discharged only by adducing clear and cogent evidence.
only the aforementioned documents but even the judicial records clearly show
that the possession had in fact been taken.
Mr. Raju Ramachandran, however, made an alternative submission
before us that this Court, in exercise of its jurisdiction under Article 142 of
Constitution of India, may issue necessary directions so as to put a quietus to
the entire matter. This Court cannot foresee all the eventualities.
However, before us Mr. Ranjit Kumar, learned senior counsel
appearing on behalf of the respondents, when questioned, categorically stated
that in view of the statement made in the counter affidavit, the positive case
of the respondents is that they had not been in possession.
aforementioned statement made by the respondents is found to be incorrect,
legal steps as is permissible in law may be taken. Furthermore, if the
respondents and/or any other person are found to be in possession of the lands
which were the subject matter of acquisition in terms of the notification under
Section 4 of the Act, appropriate steps for eviction therefor can be initiated.
It goes without saying that the authorities of the State of Uttar Pradesh shall
render all cooperation to the appellant in this behalf.
It is furthermore neither in doubt nor in dispute that the
initiation of the acquisition proceedings at the instance of the appellant was
for setting up of a thermal power station. It had to be shifted to another site
only because the Central Government asked it to do so keeping in view the
ecological perspective in mind. It is, therefore, permissible for the appellant
to put the land in question which has vested in it for another purpose which
would come within the purview of any public purpose as has been noticed by this
Court in Khatri (supra) and for any other purpose as has been noticed by this
Court in Keerwani Ammal (Supra) Yet again in Kasturi & Ors. v. State of
Haryana [(2003) 1 SCC 335], this Court has held :
If the land was not used for the purpose for which it was acquired, it was open
to the State Government to take action but that did not confer any right on the
respondents to ask for restitution of the land. As already noticed, the State
Government in this regard has already initiated proceedings for resumption of
the land. In our view, there arises no question of any unjust enrichment to the
Khullar & Anr. v. Union of India & Ors. [(2007) 5 SCC 231], it was
"16. The learned Additional Solicitor General appearing on behalf of the
respondents submitted that having regard to the authorities on the subject the
question is no longer res integra. It is not as if lands acquired for a
particular public purpose cannot be utilised for another public purpose. He
contended that as long as the acquisition is not held to be mala fide, the
acquisition cannot be invalidated merely because the lands which at one time
were proposed to be utilised for a particular public purpose, were later either
in whole or in part, utilised for some other purpose, though a public purpose.
He, therefore, submitted that some change of user of the land, as long as it
has a public purpose, would not invalidate the acquisition proceeding which is
otherwise valid and legal."
Referring to the facts of the instant case, it cannot be disputed that the planned
development of Delhi for which purpose the land was acquired under Section 4 of
the Act is wide enough to include the development and expansion of an airport
within the city of Delhi. Thus it cannot be said that the land is actually
being utilised for any purpose other than that for which it was acquired.
difference is that whereas initially the development work would have been
undertaken by DDA or any other agency employed by it, after the constitution of
IAAI, the said development work had to be undertaken by the newly constituted
authority. Thus there has been no change of purpose of the acquisition. All
that has happened is that the development work is undertaken by another agency
since constituted, which is entrusted with the special task of maintenance of
airports. Since the said authority was constituted 31 several years after the
issuance of the notification under Section 4, the acquisition cannot be
invalidated only on the ground that the public purpose is sought to be achieved
through another agency. This, as we have noticed earlier, was necessitated by
change of circumstances in view of the creation of the authority i.e. IAAI.
Moreover, since there is no change of public purpose for which the acquired
land is being utilised, the acquisition cannot be invalidated on that ground.
purpose for which the lands are being utilised by a governmental agency is also
a public purpose and as we have noticed earlier, would come within the ambit of
the public purpose declared in Section 4 notification. Therefore, the
acquisition cannot be challenged on the ground that the acquired lands are not
being utilised for the declared public purpose. Having regard to the facts of
the case it cannot be contended, nor has it been contended, that the notification
under Section 4 of the Act was issued mala fide."
For the reasons aforementioned, the appeals, being devoid of any
merit, are dismissed subject to the observations made hereinbefore with costs.
Counsel fee assessed at Rs.50,000/- in each of these appeals.
.....................................J. [S.B. Sinha]
.....................................J. [Cyriac Joseph]