REPORTABLE

IN THE 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

J U D G M E N T  

S.B. SINHA, J :   

1. 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  

judgment.   

2. We  may,  however  notice  the  fact  of  the  matter  involved  in  Civil  

Appeal Nos.6228-6229 of 2002.

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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 Ghaziabad.   

3. 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  

4. 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.  

A 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.

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5. 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., Ghaziabad.

Through  Sri.  D.V.  (not  ligible),  village  Sarna,  Muradnagar,  Pargana  Jalalabad,  District,  Ghaziabad.

Sd/- (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.

Certified  that  I  on  behalf  of  the  Manager,  NTPC  Ltd.,  Ghaziabad  have  to  take  over  

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possession  of  the  abovementioned  land  through  ______________________ today.”

    Khasra numbers and area of the plots, possession whereof had been  

taken, were specified therein.

6. 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.    

It is 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.  

However,  the  Land  Acquisition  Officer  despite  the  same  proceeded  to  

determine the amount of compensation payable for the acquisition of land.  

7. An Award was made on 24th September, 1986.   

A 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  @  

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Rs.155/- per sq. yards and Rs.115/- per sq. yds. in respect of two references  

made separately before it.  .  

8. 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  

acres.   

9. 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  

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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.  Any 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.

It  is  understood  that  some  mutations  in  respect  of  lands  of  these  villages  in  favour  of  NTPC  have  been  made  in  the  revenue  records.  Obviously there appears to be some discrepancy.  Since no 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.   

It is, 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..”    

10. 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.   

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NTPC 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 land.   

11. On 11th November,  1994 the State of U.P.  issued a Notification in  

terms of Section 48 of the Act.   

Aggrieved, 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.   

By reason of a judgment and order dated 21st July, 1998 the said writ  

petition was allowed.   

12. Indisputably on the same day, the same Bench passed judgment in the  

First  Appeals  preferred  by  appellant  (NTPC)  against  the  order  of  the  

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Reference  Court  dated 22nd October,  1993.   We shall  deal  with  the  said  

matter separately.

13. 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.  

14. 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.

(ii) 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  

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late in the day for the appellant/NTPC to contend that possession  

of a major portion of the land had was not taken over.   

(iii) The 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.   

15. 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  

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17. 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.   

Section 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.   

The said 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.

(2) 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  

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prosecution  of  the  proceedings  under  this  Act  relating to the said land.

(3)  The  provisions  of  Part  III  of  this  Act  shall  apply, so far as may be, to the determination of the  compensation payable under this section.”

18. 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.

19. 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.  

20. 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.

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21. 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.  

Our attention had further been drawn to the written statement filed on behalf  

of the appellant before the reference court, which reads as under :

“That 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.”

22. 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.

23. 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.   

We may notice some of the statements recorded therein :

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“10. Whether Sec.17 is in force : Yes

11. Date of the right : 16.11.84

XXX XXX XXX

18. 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.”

We may quote hereinbelow the relevant portions from the said award :

“4. 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”

24. 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 :

“(2) The petitioners will get 12% per annum as  additional amount on the above market value for  the  period  commencing  from  the  date  of  

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publication  of  the  notification  u/s.  4(1)  dated  6.9.84 to the date of possession dated 16.11.84.”

25. 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 regard.

Even before us, the only ground taken was that the land could not be  

put to use which is a non-issue.

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26. 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  

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of any fraudulent or collusive transaction of taking  of mere paper possession, without the occupant or  the owner ever coming to know of it.”

This decision, therefore, itself is an authority for the proposition that  

no absolute rule in this behalf can be laid down.

In  Larsen & 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.   

27. 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.

28. 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  

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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.

29. 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.  

Either the possession had actually been delivered or had not been delivered.  

It cannot 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.

30. 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.  

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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.   

In  Lt. Governor of Hmachal Pradesh & Anr. v.  Sri Avinash Sharma  

[(1970 (2) SCC 149], this Court has stated the law, thus :

“But 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 notification.”

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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 :

“When  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.  Section  17(1)  states  so  in  unmistakable  terms.  Clearly, 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.”

In  Pratap & Anr. v.  State of Rajasthan & Ors. [(1996) 3 SCC 1], a  

Three Judge Bench of this Court opined as under :

“12.  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.”

In Sanjeevnagar Medical & Health Employees’ Cooperative Housing  

Society v. Mohd. Abdul Wahab & Ors. [(1996) 3 SCC 600], it was held :

“…In 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  

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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.”

31. 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.

The  said  principle  has  been  reiterated  in  Bangalore  Development  

Authority  & Ors. v.  R.  Hanumaiah & Ors. [(2005)  12 SCC 508],  in  the  

following terms :

“43. 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.”

It has further been held :

“46. 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  

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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.”

{See also  State of Kerala & Ors. v.  V.P. Kurien & Ors. [(2005) 11  

SCC 493]}.

32. The High Court, therefore, in our opinion, was correct in its view.

33. 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.

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In  Smt. Gunwant Kaur & Ors. v.  Municipal Committee, Bhatinda &  

Ors. [(1969) 3 SCC 769], it was held :

“14.  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.

15.  From 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  

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arise  related  to  the  due  publication  of  the  notification under Section 4 by the Collector.

16. In 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.”

Such a direction has been issued, as noticed hereinbefore, even in a  

land acquisition matter.

Yet again,  in  Babubhai  Muljibhai  Patel v.  Nandlal  Khodidas Barot  

[(1974) 2 SCC 706], this Court has held :

“10. 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.  Section 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  

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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.”

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In 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.”

34. 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.”

It was 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.  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:  

“The  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.”

35. 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.  

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Not only the aforementioned documents but even the judicial records clearly  

show that the possession had in fact been taken.  

36. 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.   

37. 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.

If the 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.

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38. 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 :

“12. 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 appellant Company.”

In Ravi Khullar & Anr. v. Union of India & Ors. [(2007) 5 SCC 231],  

it was contended :

30

“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.”

It was held :

“23. 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.  The  only  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.  The 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.”

39. 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]

New Delhi; July 16, 2009

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