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PETITIONER: HIMALAYAN TILES & MARBLES (P) LTD.

       Vs.

RESPONDENT: FRANCIS VICTOR COUTINHO (DEAD) BY LRS & ORS.

DATE OF JUDGMENT28/03/1980

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA KOSHAL, A.D.

CITATION:  1980 AIR 1118            1980 SCR  (3) 235  1980 SCC  (3) 223  CITATOR INFO :  RF         1980 SC1316  (7)  D          1988 SC2139  (3)  RF         1990 SC1321  (3)

ACT:      Land Acquisition  Act 1894  (1 of 1894) Section 18(1) & Land Acquisition (Amendment) Act 1962 (31 of 19623 Section 7 Scope of.      Land acquisition proceeding ’person interested’ who is      Acquisition for company before July 20, 1962-Possession not  vesting     in   government-acquisition  not  complete- Invalidity not cured by Section 7 of amending Act.

HEADNOTE:      The appellant  a private  company was  carrying on  the business of  manufacture and  sale of artificial marbles and tiles. In or about 1957 the company moved the Government for acquiring additional  land for  purposes of  the company and the Government  on January  7, 1958  issued  a  notification under section 4 of the Land Acquisition Act, 1894, which was followed by  a  separate  notice  by  the  Land  Acquisition officer acquiring  the land in dispute. This was followed by another notification  under section  6 of  the Act which was served on the respondent on January 25, 1960. The purpose of the  acquisition  was  mentioned  in  the  notification,  as "public purposes  for which the land is needed for Himalayan Tiles and  Marble (Pvt)  Ltd." The  acquisition  proceedings culminated in  an award  made under section 12 of the Act on April 11, 1961, which was published  in the State Gazette on April 18, 1961. On December 11, 1961 a letter was written on behalf of the Government informing the owner of the acquired land that  possession would be taken on or about the 12th of January, 1962.      The first  respondent in  his writ petition to the High Court, contended  that the  Government was  not competent to acquire the  land for  purposes of  a private  company which could not  be said to be a public purpose under section 4 of the  Act   and  prayed  that  the  entire  land  acquisition proceedings should  be quashed.  A Single  Judge of the High Court accepted  the plea,  allowed  the  writ  petition  and quashed the  land acquisition  proceedings  along  with  the notifications.

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    The appellant filed an appeal before the Letters Patent Bench which  confirmed the  view of  the  Single  Judge  and dismissed the appeal on the ground that the appellant had no locus standi  to file  the appeal,  as it  was not ’a person interested’ within the meaning of section 18(1) of the Act.      In the  appeal to this Court it was contended on behalf of the  appellant: (1)  the Letters Patent Bench of the High Court was  wrong in  holding that  the appellant  was not ’a person interested’ and therefore had no locus standi to file an appeal,  and (2) in view of the various amendments in the Land Acquisition  Act, 1894  particularly in sections 40 and 41 it could not be said that the acquisition under section 4 was ultra vires of the Act. 236      Dismissing the appeal, ^      HELD: 1(i)  The appellant  was  undoubtedly  ’a  person interested’ as contemplated by section 18(1) of the Act. The High Court  committed an error in throwing out the appeal of the appellant  on the  ground that it had no locus standi to file an appeal before the Bench. [243F]      (ii) The  ’definition of ’a person interested’ given in Section 18  is an inclusive definition and must be liberally construed so  as to  embrace all persons who may be directly or indirectly  interested either in the title to the land or in the quantum of compensation. [240D]      In the  instant case,  the lands were actually acquired for the  purpose of  the Company and once the land vested in the Government,  after acquisition,  it stood transferred to the Company  under the  agreement entered  into between  the Company and  the Government. Thus it cannot be said that the Company had  no claim or title to the land at all. Secondly, since under  the  agreement  the  Company  had  to  pay  the compensation, it  was most  certainly interested  in  seeing that a  proper quantum of compensation was fixed so that the Company may  not have  to pay  a very heavy amount of money. For this  purpose, the  Company could undoubtedly appear and adduce  evidence   on  the   question  of   the  quantum  of compensation. [240E-F]      (iii) The  preponderance of  judicial opinion  seems to favour the  view that  the definition  of person  interested must be  liberally construed  so as to include a body, local authority, or  a company  for  whose  benefit  the  land  is acquired and  who is  bound under  an agreement  to pay  the compensation. This  view  accords  with  the  principles  of equity, justice and good conscience. [243 B]      (iv) The view taken by the Orissa High Court or even by the Calcutta High Court that a company, Local authority or a person for  whose benefit  the land  is acquired  is not  an interested person  is not  correct. Such a person is vitally interested both  in the title to the property as also in the compensation to  be paid  thereof because both these factors concern its  future course  of action and if decided against him seriously prejudice his rights. [243E]      Sunder Lal v. Paramsukhdas [1968] 1 S.C.R. 362 referred to;  The   Hindustan   Sanitryware   and   Industries   Ltd. Bahadurgarh &  Anr. v.  The State  of Haryana  & Ors  A.I.R. [1972] Punjab  & Haryana  59, M.  Kurpuswami v.  The Special Tahsildar (L.A.)  II Industrial Estate Ambathur at Saidapet, Madras {1967] 1 M.L.J. 329 approved; Comilla Electric Supply Ltd. v.  East Bengal  Bank Ltd. Comilla & ors. A.I.R. [1939] Calcutta 669;  State of  orissa through the Land Acquisition Collector, Sambalpur v. Amarandra Pratap Singh & Anr. A.I.R. [1967] orissa, 180 over-ruled.      2(i) The properties not having vested in the Government

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the acquisition  was not  complete and  its invalidity could not be cured by section 7 of the amendment Act. [246 G]      (ii) The  basis of the decision in R. L. Arora v. State of U.  P. [1962]  Supp. 2  SCR 149  was removed  by the Land Acquisition (Amendment)  Act 1962. By virtue of Section 7 of the amending  Act, retrospective  effect was  given  to  the amendment superseding  any judgment,  decree or order passed before July  20, 1962.  The validity of the amending Act was upheld in  R. L.  Arora v.  State of  Uttar Pradesh [1964] 6 S.C.R. 784. [239 A, E]      (iii) Even  under section  7 of  the amending  Act,  an acquisition made  by a  company prior  to July 20, 1962 must fulfil the following conditions: (a) that 237 the land  has been acquired and is vested in Government, (b) that the acquisition has been made under Clauses (a) and (b) or section  41, (c)  that every  such  acquisition  and  any proceeding, order etc. shall be deemed always as valid as if the provisions  of sections 40 and 41 of the Act, as amended by the  amending Act,  were in  force at all material times; and (d)  that  by  virtue  of  section  7  validity  to  the acquisition is  given to  all actions  taken  in  connection there with  in spite of any judgment, decree or order of any court to the contrary. [244F-H]      In the instant case the first condition that there must be a  complete acquisition  before section  7 could validate the same has not been fulfilled at all. [245A]      (iv) Until  the possession  of the entire land acquired was taken  by the Government, the acquisition could not be a complete acquisition  so as  to  attract  the  operation  of section 7 of the amending Act. [246H-247A]      In the instant case the appellant did not appear before the  Single  Judge  in  the  writ  petition  filed  by  the. respondents and  the petition  was  contested  only  by  the State. Perhaps  the appellant  may have  thought that as his interests were  fully safeguarded lay the Government, it was not necessary for it at that stage to appear before the High Court. The  pleas of both the parties taken together clearly show that the entire possession of the property did not pass to  the   Government  and  thus  no  title  vested,  in  the Government despite  the  notification  acquiring  the  land. [246F-G]

JUDGMENT:      CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1098 of 1971 .      Appeal by  Special Leave  from the  Judgment and  order dated 23-7-1970 of the Bombay High Court in Appeal No. 13 of 1965. Y. S. Chitale, P. G. Gokhale and B. R. Agarwal for the Appellant.      V. S.  Desai, Mrs. Urmila Sirur far the Respondent Nos. 2 & 3. Ex-parte for the RR 4 and 5.      The Judgment of the Court was Delivered by      FAZALALI, J.:- This appeal by special leave is directed against a judgment dated November 3, 1970 of the Bombay High Court dismissing  the Letters  Patent Appeal  filed  by  the appellant Against  a decision  of a  Single Judge allowing a writ petition filed by the first respondent.      The facts  of the  case lie within a narrow Compass and may briefly summarized as follows:      The appellant  was a private company which was carrying on the  business  of  manufacture  and  sale  of  artificial marbles and  tiles and  other accessories  at village  Majas

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Mogra, Jogeshwari,  East Bombay. The Company Was spread over about 10 acres of land. Sometime in 1957 or 1958 the company moved the  Government  for  acquiring  additional  land  for purposes of  the Company.  Accordingly, on  the 7th January, 1958, the  Government issued  a notification under section 4 of the Land Acquisition Act, 1894 (hereinafter referred to 238 as the ’Act’) which was followed by a separate notice by the Land Acquisition officer acquiring the land in dispute. This was followed  by another  notification under s. 6 of the Act which was  served on  the respondent  on the  25th  January, 1960. In  pursuance of  these notifications  the acquisition proceedings went  on which culminated in an award made under s. 12  of the  Act on April 11, 1961, which was published in the State Gazette on April 18, 1961. On December 11, 1961, a letter was written on behalf of the Government informing the owner of the acquired land that possession would be taken on or about  the 12th  of January  1962.  The  purpose  of  the acquisition, as  mentioned in  the notification, was ’public purposes for  which the land is needed for Himalayan Tiles & Marbles (Pvt.)  Ltd’.  The  first  respondent  in  the  writ petition filed  in the  High Court  before  a  Single  Judge prayed that  the entire  land acquisition proceedings should be quashed  because the land was not acquired for any public purpose as contemplated by s. 4 of the Act. It was contended before  the   Single  Judge  that  the  Government  was  not competent to  acquire the  land for  purposes of  a  private company which could not be said to be a public purpose under s. 4  of the  Act. The  plea taken  by the  first respondent found favour  with the  Single Judge  who allowed  the  writ petition  and   quashed  the  land  acquisition  proceedings alongwith the notifications mentioned above.      Thereafter, the  appellant filed  an appeal  before the Letters Patent  Bench which  confirmed the view taken by the Single Judge  and dismissed  the appeal mainly on the ground that the  appellant had  no locus  standi to file the appeal before the  Bench inasmuch as it was not a person interested within the meaning of s. 18(1) of the Act.      In support  of this appeal, the learned counsel for the appellant, Dr.  Chitale, has argued two points before us. In the first place, it was submitted that the Division Bench of the High  Court was  wrong in holding that the appellant was not a  person interested  and therefore had no locus to file an appeal  before the Letters Patent Bench. Secondly, it was argued that  in view  of the  various amendments in the Act, particularly in ss. 40 and 41, it could not be said that the acquisition under  s. 4 was ultra vires of the Act. We might mention here that in the case of R.L. Arora v. State of U.P. majority of  the Judges  of this  Court took the view that a mere acquisition  for the  benefit of  a company  was not  a public purpose  and therefore  the notification made in that case was  struck down.  Sarkar, J., however, took a contrary view. In  view of  the decision  Parliament amended  certain provisions of  the Act particularly ss. 40, 41, 44A, 44B and added a new sub- 239 section 5A after section 5. In other words, by virtue of the amendments, the  basis of  the decision of the Supreme Court in the  first Arora  case was  removed. By virtue of s. 7 of the amending  Act, retrospective  effect was  given  to  the amendment superseding  any judgment,  decree or order passed before July  20, 1962.  Section 7 of the amending Act may be extracted thus:      Validation of certain acquisitions           "7. Notwithstanding  any judgment, decree or older

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    of any  Court, every  acquisition of land for a Company      made or  purporting to have been made under Part VII of      the principal  Act before  the 20th  day of  July 1962,      shall, in  so far as such acquisition is not for any of      the purposes  mentioned in  clause (a) or clause (b) of      sub-section (I)  of section 40 of the principal Act, be      deemed to  have been  made for the purpose mentioned in      clause (a)  of the  said sub-section,  and  accordingly      every such  acquisition shall  be, and  shall be deemed      always to  have been,  as valid as if the provisions of      sections 40  and 41 of the principal Act, as amended by      this Act, were in force at all material times when such      acquisition was  made or  proceeding was  held or order      was made  or agreement was entered into or action I was      taken...."      This amending  Act was  also challenged  in the case of R.L. Arora   v.  State of  Uttar Pradesh & ors., ’where this Court upheld  its constitutional validity subject to certain corrosions. ’The  Appellant contended before us that in view of the  later decision  of the  Supreme Court  the  previous decision  of  this  Court  stood  superseded  and  the  land acquisition proceedings  taken even  before  the  amendments were validated.  In support  of this  argument, Dr.  Chitale drew our attention to various provisions of the Act.      Before, however, deciding the question as to whether or not the  proceedings taken  under s.  4 were  cured  by  the amending Act, we would first deal with the contention of Dr. Chitale that  the High  Court w IS wrong in holding that the company had  no locus  standi to  file an  appeal before the Letters Patent  Bench. Learned  counsel submitted  that  the definition of ’a person interested’ in s. 18 is an inclusive one and  is wide  enough to  include the appellant for whose benefit the  land was acquired and who had to pay the entire compensation in  accordance with  the agreement entered into by the  Government with  the appellant.  He argued  that  it could not  be said  that the appellant was not interested in defending the acquisition or in the 240 quantum of compensation which was to be awarded by the Court on a  Reference made by the Collector. The High Court was of the view  that as  the land  was acquired by the Government, the company  had no interest in the same and was, therefore, not entitled  either to  appear or to defend the proceedings before the court. In order to decide this question it may be necessary to  extract the  relevant part  of s.  18(1) which runs thus:-           "18(1). Any person interested who has not accepted      the award may, by written application to the Collector,      require that  the matter  be referred  by the Collector      for  the   determination  of  the  Court,  whether  his      objection be to the measurement of the land, the amount      of the compensation, the persons to whom it is payable,      or the  apportionment of  the  compensation  among  the      persons interested."      It seems  to  us  that  the  definition  of  ’a  person interested’ given  in s.  18 is  an inclusive definition and must be liberally construed so as to embrace all persons who may be directly or indirectly interested either in the title to the  land or  in the  quantum  of  compensation.  In  the instant case,  it  is  not  disputed  that  the  lands  were actually acquired  for the  purpose of  the company and once the land  vested in  the Government,  after acquisition,  it stood transferred  the company  under the  agreement entered into between the company and the Government. Thus, it cannot be said  that the  company had no claim or title to the land

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at all.  Secondly, since under the agreement the company had to pay the compensation, it was most certainly interested in seeing that  a proper  quantum of  compensation was fixed so that the  company may not have to pay a very heavy amount of money. For  this  purpose,  the  company  could  undoubtedly appear and adduce IF evidence on the question of the quantum of compensation.      So far  as this  aspect of  matter is  concerned, there appears to  be a  general consensus of judicial opinion that even though  the company  may not  have  any  title  to  the property yet  it certainly  has a  right to  appear and  put forward its  case in  the matter  of  determination  of  the quantum of  compensation. In  the  case  of  Sunder  Lal  v. Paramsukh das(l) this Court observed as follows:           "It will  be  noticed  that  it  is  an  inclusive      definition. It  is not  necessary that in order to fall      within the definition a person should claim an interest      in land,  which has  been acquired.  A person becomes a      person  interested   if  he   claims  an   interest  in      compensation to be awarded. It seems 241      to us that Paramsukhdas is a "person interested" within      s. 3(b)  of the  Act because  he claims  an interest in      compensation.      .....     ......    ......    ......    ....           It seems  to us  that Paramsukhdas  was clearly  a      person interested  in the objections which were pending      before the  Court in the references made to it and that      he was  also a  person whose interest would be affected      by the  objections, within  s.2l.  He  was  accordingly      entitled to be made a party."      In  the   case  of   The  Hindustan   Sanitaryware  and Industries Ltd.  Bhadurgarh & Anr. v. The State of Haryana & Ors Pandit J. observed as follows:-           "From the  facts stated above, it is apparent that      the compensation  amount has  to be  paid  by  the  two      companies. If  the said  amount  is  increased  by  the      learned Additional  District Judge on a reference under      section 18 of the Land Acquisition Act, it would be the      two companies who would be prejudiced .... No authority      even was  cited by him that under similar circumstances      any Court  had ever  held  that  the  persons  who  had      actually to  pay the compensation, could not be allowed      to lead  evidence and  say that the compensation amount      be not enhanced."      In the  case of  Comilla Electric  Supple Ltd.  v. East Bengal Bank Ltd., Comila & Ors while the High Court took the view that  the  company  for  whose  benefit  the  land  was acquired may not strictly be an interested person yet it had undoubtedly a  right to  appear and  adduce evidence  on the quantum of  compensation. In  this connection, Mukherjea, J. Observed thus:-           "Section 50,  cl.  (2)  purports  to  remedy  this      disability and it lays down that in any proceeding held      before a  Collector or  Court in  such cases  the local      authority or  company concerned  may appear  and adduce      evidence for  the purpose  of determining the amount of      compensation. The reason is plain. It is the company or      the local  authority who  has got  to pay  the money in      such cases  and it  would be  unjust to  deny them  the      right to appear and adduce 242      evidence which  would have  a bearing  on the amount of      the compensation money." Roxburgh, J. made the following observations:-

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         "Thus the  first question  for decision is clearly      settled by the above decision and there can be no doubt      that in  the circumstances  at present being considered      the company  is a  person interested, as defined in the      Act, and is entitled to require a reference under s. 18      unless that  right is  restricted by  the terms  of the      proviso to s. 50(2)."      In the  case of  M. Kuppuswami v. The Special Tahsildar (L.A.) II  Industrial Estate,  Anzbathur at Saidapet, Madras Venkatadri, J.  interpreting the  definition of  ’interested person’ observed as follows:-           "The only  question for consideration therefore is      whether the  petitioner  is  a  person  interested,  as      defined in section 3(b) of the Land Acquisition Act.           The definition  section says  that the  expression      ’person interested’  includes all  persons claiming  an      interest in  compensation to  be made on account of the      acquisition of  land  under  the  Act.  The  expression      ’person interested’  is Every comprehensive and it does      not profess  to  give  an  exhaustive  definition.  The      expression ’person  interested’ has been interpreted by      various Courts,  and the  trend of the opinion seems to      be that I should give a liberal interpretation ...           On a  review of  the case-law  on the  subject, it      seems to  me that  the expression  ’person  interested’      does not  require that  a person  must really  have  an      interest in  the land  sought to  be  acquired.  It  is      enough if  he claims  an interest  in compensation,  as      distinguished from  an interest  in the property sought      to be  acquired. As  long as a person claims a interest      in the  compensation, he  is a person interested within      the meaning of the definition of that expression."      The only  case which  appears to  have taken a contrary view is  a Division  Bench decision of the Orissa High Court in the  case of State of Orissa through the Land Acquisition Collector, Sambalpur  v. Amarandra  Pratap Singh & Anr., (2) where the High Court held that 243 the expression  ’person interested’  did not include a local authority or  a company  on whose behalf acquisition is made by the  State. At the same time, it was clearly held that it was open  to  the  company  in  any  proceeding  before  the Collector or  court to  appear and  adduce evidence  for the purpose of determining the amount of compensation.      Thus, the  preponderance of  judicial opinion  seems to favour the  view that  the definition of ’person interested’ must be  liberally construed so as to’ include a body, local authority, or  a company  for  whose  benefit  the  land  is acquired and  who is  bound under  an agreement  to pay  the compensation. In  our opinion,  this view  accords with  the principles of  equity, justice  and good conscience. How can it be  said that  a person  for whose  benefit the  land  is acquired and  who is to pay the compensation is not a person interested even  though its  stake may  be extremely vital ? For instance,  the land  acquisition proceedings may be held to be  invalid and  thus a  person concerned  is  completely deprived of  the benefit  which is  proposed to  be given to him. Similarly  if  such  a  person  is  not  heard  by  the Collector or  a court,  he may  have to  pay  a  very  heavy compensation which, in case he is allowed to appear before a court, he  could have satisfied it that the compensation was far too  heavy having regard to the nature and extent of the land. We are, therefore, unable to agree with the view taken by the  Orissa High Court or even by the Calcutta High Court that a company, local authority or a person or whose benefit

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the land  is acquired  is not  an interested  person. We are satisfied that  such a  person is vitally interested both in the title  to the property as also in the compensation to be paid therefor  because both these factors concern its future course of  action and  if  decided  against  him,  seriously prejudice his  rights. Moreover,  in view of the decision of this Court referred to above, we hold that the appellant was undoubtedly a  person interested as contemplated by s. 18(1) of the Act. The High Court, therefore, committed an error in throwing out  the appeal of the appellant on the ground that it had no locus to file an appeal before the Bench.      The next  point that  was argued  before us  was as  to whether the  land acquisition  proceedings are cured by s. 7 of the  amending Act  referred to  above.  Mr.  V.S.  Desai, appearing for  the respondents, submitted that in the second Arora  case   (supra)  while  upholding  the  constitutional validity of  s. 4 and other amendments, this Court laid down certain  conditions   which  had   to  be  fulfilled  if  an acquisition made  prior to  July 20,  1962 was  held  to  be valid. In this connection, 11 reliance was placed by learned counsel for  the respondents  on the  following passage from R.L. Arrora’s case (supra): 244           "Therefore before s. 7 can validate an acquisition      made before  July 20, 1962, it must first be shown that      the acquisition  is complete  and the land acquired has      vested in Government. This means that the land acquired      has vested in Government either under s. 16 or s. 17(1)      of the  Act. Thus  s. 7  of the Amendment Act validates      such  acquisitions   in  which   property  has   vested      absolutely in  Government either  under  s.  16  or  s.      17(1). Secondly s. 7 of the Amendment Act provides that      where acquisition  has been  made for  a company before      July 20,  1962 or  purported to  have been  made  under      cl.(a) or  cl. (b) of s. 40(1) and those clauses do not      apply in view of the interpretation put thereon in R.L.      Arora’s case  [1962 (2)  Supp. S.C.R. 149], it shall be      deemed  that   the  acquisition  was  for  the  purpose      mentioned in cl. (aa) as inserted in s.40(1) of the Act      by the Amendment Act. Thirdly s. 7 of the Amendment Act      provides  that   every   such   acquisition   and   any      proceeding, order,  agreement, or  action in connection      with such  acquisition shall  be, and  shall be  deemed      always to  have been,  as valid as if the provisions of      ss. 40  and 41  of the  Act as amended by the Amendment      Act were in force at all material times when any action      was taken  for such acquisition. Finally, this validity      is given  to such acquisitions and to all actions taken      in connection therewith not with standing any judgment,      decree or order of any court."      A perusal of these observations would manifestly reveal that even  under s.  7 of  the amending  Act, an acquisition made for  a company  prior to  July 20, 1962 must fulfil the following conditions:-      (a)  that the  land has  been acquired and is vested in           Government :      (b)  that the  acquisition has  been made under clauses           (a) and (b) of s. 40(I)      (c)  that every  such acquisition  and any  proceeding,           order, etc., shall be deemed always as valid as if           the pro  visions of  ss. 40  and 41 of the Act, as           amending by the amending Act, were in force at all           material times; and      (d)  that by virtue of s. 7 validity to the acquisition           is  given  to  all  actions  taken  in  connection

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         therewith inspite of any judgment. decree or order           of any court to the contrary. 245      We are, however, satisfied that in the instant case the first condition  adumbrated by  this Court, viz., that there must be  a complete  acquisition before  s. 7 could validate the same, has not been fulfilled at all. In this view of the matter we need not go into the other conditions indicated by this Court.      It was  contended by  Mr. Desai  that according  to the unchallenged pleadings  of the  respondents,  including  the Government, which  was a party before the District Court and also before  the Single  Judge of  the High  Court, there is nothing to  show that  after the  issue of  notification the Government had taken possession of the land so that it could be said  that the land had vested in the Government in which case alone  the  acquisition  proceedings  would  have  been completed. In  this connection,  our attention  was drawn to para 1  of the  petition filed by the respondents before the High Court, which runs thus:      "The petitioners  have. become  the owners  of the said      lands by  inheritance, and the present lands records in      respect of  the said  lands stand  in the  name of  the      petitioners.  There   is   no   dispute   between   the      petitioners and  the respondents  that the  petitioners      are the  owners of  the said  immovable  property.  The      petitioners  were   at  all  times  and  still  are  in      possession of the said immovable properties."      According to  this averment, it is clearly pleaded that inspite of  the notifications,  the possession  had not been given to  the Government  and the  respondents  (petitioners before the  High Court)  were still  in  possession  of  the properties in  question. A similar averment has been made in para 15 of the petition which may be extracted thus:-      "The petitioners  say that they are still in possession      of the  said lands and possession of the said lands has      not been  taken away  from them  and the tenants of the      petitioners  numbering  about  53  at  present  are  in      physical] occupation of the same."      It was  also alleged that the Government had threatened the petitioners  in the  High Court that possession would be taken through  police but  despite such threats given by the Government, the  petitioners were still in possession of the said lands  and the  structures were  in possession  of  the tenants. The  Government in its reply-affidavit did not deny these averments.  On the other hand, they admitted the same. Para 8 of the reply-affidavit may be extracted thus:      "with reference  to paragraph  1  of  the  petition,  I      believe  the   contents  thereof  to  be  substantially      correct though  as stated  above the petitioners’ names      do not appear as 246      occupants or owners in the record of rights relating to      the land in question." Similarly, in  para 21 of the reply, the contents of para 15 of the  petition were  admitted and  further the  fact  that possession was  with the petitioners, was not denied but was admitted to  be correct. Para 21 of the reply-affidavit runs thus:-      "21. With  reference to paragraph 15 of the petition, I      believe  the   contents  thereof  to  be  substantially      correct."      Learned counsel  for the  appellant, however,  drew our attention to a letter sent by the respondents and went on to show that possession of only one acre of land has been taken

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by the  Government. Even  the High  Court clearly found that possession had  not been  fully delivered  to the Government after the  notification. In  this connection,  the  Division Bench observed as follows:-      "on the  question of  possession being delivered to the      Government the  petitioners specifically averred at the      end of  paragraph 15  of the petition. "The Petitioners      further say  that notwithstanding  the said  letter and      the threat  therein contained the petitioners are still      in possession  of the  said lands and their tenants are      occupying the  said  structures  standing  thereon  and      possession  thereof   has  not   been  taken   by   the      respondents". They made similar averments at the end of      paragraph l of the petition, that "the petitioners were      at all  times and  still are  in possession of the said      immovable properties"."      Admittedly, the  appellant did  not appear  before  the Single Judge  in the  writ petition filed by the respondents and the  petition was  con tested only by the State. Perhaps the appellant  may have  thought that  as its interests were fully safeguarded  by the  Government, it  was not necessary for it  at that  stage to appear before the High Court. Even so, the  pleas of  both the  parties taken  together clearly show that the entire possession of the property did not pass to the Government and thus no title vested in the Government despite  the  notification  acquiring  the  land.  In  these circumstances, therefore,  it is unmistakably clear that the properties  not   having  vested   in  the  Government,  the acquisition was not complete and its invalidity could not be cured by  s. 7  of the  amendment Act as pointed out by this Court in  the case  referred to  above. On this ground alone the appellant  must fail.  Dr. Chitale,  however,  suggested that out  of 2.2 acres, possession of one acre may have been taken by  the Government.  Assuming that to be so, until the possession of the entire land acquired was taken 247 by the  Government, the  acquisition could not be a complete acquisition so  as to  attract the  operation of s. 7 of the amending Act.  In this  view of the matter, we are satisfied that the  appellant has  failed to  prove that  one  of  the essential conditions for application of s. 7 of the amending Act,  which  would  cure  the  infirmities  from  which  the acquisition proceedings  suffer,  has  been  fulfilled.  The inescapable  conclusion,   therefore,  is   that  the   land acquisition proceedings  were void and no benefit accrued to the appellant  from the amending Act. The result is that the appeal fails  and is  dismissed but  in the circumstances of the case there will be no orders as to costs. N.V.K.                                     Appeal dismissed. 248