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PETITIONER: M/S.  JETHMULL BHOJRAJ

       Vs.

RESPONDENT: STATE OF BIHAR & ORS.

DATE OF JUDGMENT25/01/1972

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. REDDY, P. JAGANMOHAN PALEKAR, D.G.

CITATION:  1972 AIR 1363            1972 SCR  (3) 193  1972 SCC  (1) 714

ACT: Land Acquisition Act (1 of 1874), ss. 9 and 17-Scope of.

HEADNOTE: 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,  [1971] 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

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,the  expiry of 15 days from the publication of  the  notice under  s.  9(1),  the lands had vested  in  the  Government. [198G-H; 199A-C]

JUDGMENT: 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 1959- 60   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  Acqui- sition  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

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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  allega- tions.  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 posse ssion 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.

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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.  Posses- sion  referred  to in s. 48 necessarily  is  the  possession taken  either under s. 16 or under s. 17(1).  Section  17(1) says :               "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.

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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  order- sheet 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 con- tention.  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 the Government. 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) [1971]  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

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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. 200