REDDY, P. JAGANMOHAN PALEKAR, D.G.
CITATION: 1972 AIR 1363 1972 SCR (3) 193 1972
SCC (1) 714
Land Acquisition Act (1 of 1874), ss. 9 and
In 1954 the lands in dispute were notified
under the Indian Forests, Act, 1927. Later, in order to, acquire and include
them in the adjoining Government forest, Government notified them under s. 4 of
the Land Acquisition Act, 1894.
Government also took action under s. 17(4) of
the Act, dispensed with the proceedings under s. 5A, and issued the
notification under s. 6. Thereafter proceedings were taken under ss. 9 and 1.1,
but Government decided that it was not worthwhile to acquire the entire area
and withdrew some of the lands from acquisition.
The appellant moved the High, Court
unsuccessfully, under Art. 226, for directions to award him compensation in
respect of those lands also.
In appeal to this Court, it was contended
that : (1) Since the Government had taken possession in 1954, Government became
full owners of the lands when notifications were issued under s. 6 of the Land
Acquisition Act; and (2) the lands bad been actually taken possession of by the
Collector under s. 17(1) and Government became full owners when public notice
was given under s. 9(1).
Dismissing the appeal,
HELD : (1) There was no satisfactory evidence
to show that the Government had taken possession of the lands in 1954.
Therefore, the High Court was justified in
not pronouncing on the question in a petition under Art. 226.
(2) (a) Under s. 17(1) the Collector cannot
take possession unless Government directs him to do so. There is no material on
record to show that Government had given any such direction, nor is there any
material to show that the Collector had taken possession under s. 17(1). [196
G-H] Lt. Governor of Himachal Pradesh v. Avinash Sharma,  1 S.C.R. 413,
explained and distinguished.
(b) The expression 'whenever the appropriate
Government so directs' in s. 17(1) refers to the taking of possession and not
to the declaration of urgency. But even in cases of urgency, Government may not
think it necessary to take immediate profession. Hence, it could not be said
that on ,the expiry of 15 days from the publication of the notice under s.
9(1), the lands had vested in the Government.
CIVIL APPELLATE JURISDICTION : C.A. No. 379
and 741 of 1967.
Appeal from the judgment and order dated
October 14, 1966 of the Patna High Court in Civil Writ jurisdiction Cases No. 434
and 435 of 1966, 194 R. K. Garg, S. C. Agarwal and D. P. Singh, for the
appellant (in C.A. 741 of 1967) A. K. Sen, R. K. Garg, S. C. Agarwal and D. P.
Singh, for the appellant (in C.A. No. 179 of 1967) Niren De, Attorney General
for India, D. Goburdhun, for the respondents (in both the appeals).
The Judgment of the Court was delivered by
Hegde, J. In these appeals by certificate, the only question that arises for
decision is whether on the facts and in the circumstances of these cases, the
Government of Bihar was competent to withdraw from acquisition certain lands
sought to be acquired under Acquisition Cases Nos. 3 and 4 of 195960 before the
Additional Land Acquisition Officer, Hazaribagh.
The lands concerned in these cases were notified
for acquisition in 1959 under s. 4 of the Land Acquisition Act, 1894 (to be
hereinafter referred to as the Act under two different notifications. At about
the same time, the Government also took action under S. 17(4) of the Act and
dispensed with proceedings under s. 5A. Simultaneously notifications under s, 6
were also issued. Thereafter proceedings under ss. 9 and 11 were taken. When
the acquisition proceedings were pending before the Land Acquisition Officer,
the Government withdrew from acquisition some of the lands earlier notified
under ss. 4 and 6, Consequently the Land Acquisition Officer excluded the
compensation in respect of those lands from the computation made by him
earlier. The appellant (common appellant in both the appeals) being aggrieved
by that exclusion moved the High Court of Patna under Art. 226 of the
Constitution seeking directions from that court to the Land Acquisition Officer
to award him compensation in respect of those lands as well. The High Court
rejected those writ petitions.
Hence these appeals.
The lands in question are situate in the
villages of Telaiya and Debipur. On June 11, 1948, they were notified under ss.
14 and 21 of the Bihar Private Forest Act,
1947. Thereafter they were again notified under s. 29 of the Indian Forest Act
in 1953 and 1954. Later on the Government felt that in order to include those
lands in the adjoining Government forest, it would be necessary to acquire
them. Consequently they were notified for acquisition. But after the lands in
question were tentatively valued, the Government thought that it was not
worthwhile to acquire entire area notified for acquisition. Hence it withdrew
from acquisition a substantial portion of lands notified for acquisition, These
in brief are the material facts.
195 The allegation of the appellant is that
after the lands in question were notified under s. 29 of the Indian Forest Act,
the Forest Department unlawfully took possession of those lands and continued
to be in possession of the same and therefore when notifications under s. 6
were issued, the Government became the owner of those lands and thereafter, it
was not competent for the Government to withdraw from acquisition any of the
lands notified under s. 6.
Alternatively it was contended that the
Government became the full owner of those lands when the Collector caused a
public notice to be given under s. 9(1) of the Act. Lastly it was contended
that the lands in question had been actually taken possession of by the
Collector under s. 17(1) of the Act and hence they vested in the Government.
The Government of Bihar has denied all the
above allegations. It denied that the Government took possession of the lands
in question in 1954. It further denied that those lands had been taken
possession of under s. 17(1). The Government denied the allegation of the
appellant that it became the owner of the lands in question either when
notifications under s. 6 or notices tinder s. 9(1) were issued.
The High Court was not satisfied from the
evidence adduced by the appellant that the Government had taken possession of
the lands in question in 1954. It thought that this was a disputed question of
fact and on the material before if, it was not possible to decide that question
conclusively and hence it declined to pronounce on that question. The High
Court repelled the contention of the appellant that possession had been taken
under s. 17(1). It also did not accept the contention of the appellant that on
the issue of notices under s. 9(1), Government bad become the owner of the
lands in question. In the result the High Court dismissed the writ petitions.
The very contentions taken before the High Court were repeated in this Court.
Now coming to the question whether the
Government took possession of the lands in question in 1954, it was conceded
that the Government was not competent to take possession of those lands either
under the notifications issued under ss.
14 and 21 of the Bihar Private Forest Act
1947 or under the notifications issued under s. 29 of the Indian Forest Act.
The case of the appellant is that the
Government unlawfully took possession of the properties. In support of that
contention reliance was mainly placed on the letter written by the Divisional
Forest Officer, Kodarma Division to the Range Officer, Kodarma on October 1,
1958 as well as on the requisition sent to the Land Acquisition Officer by the
same officer on January 24, 1959 (Annexure M. The concerned 196 Divisional
Forest Officer was one Brijmohan Prasad. In the letter in question he stated :
"The forest in the above villages are in
possession of the Forest Department since sometime past. .
In-the requisition again, he mentioned
"The land was previously notified under s.29(3) of the I.F.A. and it was
demarcated and possession taken. Later on it was found that the land in
question was raiyati, it was necessary to acquire under the Land Acquisition
Act." In para 12 of that requisition, he further stated "it is
already under possession and this is to be formally handed over
immediately." This Officer has filed an affidavit before the High Court.
Therein he explained that he made the
statements in question under an erroneous impression that the Government came
into possession of the lands in question in view of the notification issued
under s. 29 of the Indian Forest Act.
This statement of his receives support from
his letter written to the Land Acquisition Officer on August 11, 1959 wherein
he mentioned :
"With reference to your above letters, I
have to say that Debipur Forest was notified under the Indian Forest Act on the
8th December, 1953 and that of Telaiya on the 22nd November, 1954. Thus, date
of possession is 8th December, 1953 and 22nd November 1954 respectively."
It is possible that this officer had an erroneous impression as to the effect
of a notification under s. 29 of the Indian Forest Act. The other documents
relied on by the appellant are wholly inconclusive. Hence there is no need to
refer to them. We are in agreement with the High Court that there is no
satisfactory evidence to show that the Government had taken possession of these
lands in 1953 or 1954. As the parties had not enough opportunity to adduce
evidence on this point, we will not be justified in finally deciding this
question. It is sufficient if we say that on the material on record, the High
Court was justified in not pronouncing on this question in a petition under
Art. 226 of the Constitution. It is open to the appellant to seek such other
remedy as may be available to him under law if the Government had unlawfully
taken possession of those lands.
'Me. question whether the Government had
unlawfully taken possession of those 197 la ads in 1954, as we shall presently
see, is wholly irrelevant for the decision of these appeals.
The next point that arises for decision is
whether delivery of the lands notified for acquisition was taken under s. 17(1)
as contended by the appellant. The Government becomes the owner of the lands
notified for acquisition only when the Collector takes possession of those
lands either under s. 16 or under s. 17(1). Both those provisions provide that
when the Collector takes possession under those provisions, the lands notified
for acquisition shall vest absolutely in the Government free from all
encumbrances. Until and unless possession is taken under either of those
provisions, the lands notified for acquisition do not vest in the Government.
Section 48(1) of the Act provides :
"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." Section 36 is not
relevant for our present purpose. Possession referred to in s. 48 necessarily
is the possession taken either under s. 16 or under s. 17(1). Section 17(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 (lays from the publication of the
notice mentioned in section 9, sub-section (1), take possession of any waste or
arable land needed for public purposes or for a Company. Such land shall
thereupon vest absolutely in the Government free from all encumbrances."
Ordinarily possession of any land notified for acquisition is taken when the
Collector had made an award under s. 11 and not before it. But an exception is
provided under s.
17(1). In cases of urgency, if the Government
so directs, the Collector may, though no award has been made under s.
11, on the expiration of the 15 days from the
publication of the notice mentioned in s. 9(1) take possession of any waste or
arable land and the land shall thereupon vest absolutely with the Government
free from all encumbrances. From this provision, it is plain that the Collector
cannot take possession of the land in question unless the Government directs him
to do so. The Government can direct him to do so only in cases of urgency. Even
when the Government directs the Collector to take possession, lie cannot ,do so
until expiration of 15 days from the publication of a notice 198 under s. 9(1).
There is no material on record to show that the Government had given to the
Collector any direction under S. 17 (1 ); nor is there any material to show
that the lands in question had been taken possession of by the Collector under
s. 17(1'). It is true that in the ordersheet maintained by the Land Acquisition
Officer, a note was made on October 17, 1959 :
"Shri B. J. Yadav Kgo, to deliver
possession at the spot to the representative of the R.O. on 16-11-59 Draft
addressed to R.O. is signed." But there is nothing to show that this order
was implemented. According to the respondent this order was not implemented.
Relying on the decision of this Court in Lt.
Governor of Himachal Pradesh v. Avinash Sharma(1) it was contended by Mr. R. K.
Garg, the learned Counsel for the appellant that once it is established that
the possession of the land notified for acquisition was taken in 1953 or 1954,
it was unnecessary for his client to establish that any possession was taken
under S. 17(1). According to him on the expiration of 15 days after the issue
of notices under S.9(1), the lands in question vested in the Government. The
decision in question does not lend any support for this contention. In that
case not only the property had been taken possession of by the Government even
before the acquisition proceedings had started but appropriate proceedings
under s.9(1) and s. 17(1) were also taken though there was no actual taking of
possession under s. 17(1). Under those circumstances this Court observed :
"In the present case a notification
under S.17(1) and (4) was issued by the State Government and possession which
had previously been taken must, from the date of expiry of fifteen days from
the publication of the notice tinder S. 9(1), be deemed to be the possession of
In the present case, as mentioned earlier, no
material has been placed before the Court to show that action under s. 17(1)
had been taken.
It was next contended by Mr. Garg and Mr. A.
K. Sen, that the expression "whenever the appropriate government so
directs" in s. 17(1) refers to urgency and not to the taking of possession
of the lands notified for acquisition. Their further contention was that no
sooner the Government issued the notification under s. 1.7(4), the factum of
urgency was established and hence on the expiration of the fifteen days from.
the publication of notice under (1)  S.C.R. 413 199 s.9 (1) the lands
which were already in the possession of the Government vested in the
Government. We are unable to accept this construction of s. 17(1). In our
judgment s.17(1) is plain and unambiguous. The expression "whenever the
appropriate government so directs" in that section refers to the taking of
possession and not to the declaration of urgency. Even in case of urgency, the
Government may not think it necessary to take immediate possession for good
reasons. Neither the language of s.17(1) nor public interest justifies the
construction sought to be placed by the learned Counsel for the appellant.
For the reasons mentioned above, these appeals
fail and they are dismissed; but in the circumstances of the case, we direct
the parties to bear their own costs in these appeals.
Before concluding the case, it is necessary
to record the assurance given by the Attorney-General on behalf of the State Government
of Bihar that the Government of Bihar will not realise from the appellant any
interest on the loans advanced for the development of the lands notified for
acquisition in the two Land Acquisition cases from the dates they were notified
under s. 29 of the Indian Forest Act. A Memo. to that effect has been filed.
V.P.S. Appeals dismissed.