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PETITIONER: TAMIL NADU HOUSING BOARD

       Vs.

RESPONDENT: A. VISWAM (DEAD) BY LRS.

DATE OF JUDGMENT:       09/02/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  JT 1996 (2)   549        1996 SCALE  (2)418

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      These appeals  by special leave arise from the judgment and decree of the High Court of Madras made on April 7, 1994 in S.A. No.1526 of 1988. The facts are not in dispute.      Notification under Section 4(1) of the Land Acquisition Act, 1894  (Act 1  of  1894)  (for  short,  the  "Act")  was published on  September 17, 1958 acquiring a large extent of 339 acres of land comprising Kodambakkam and Pudoor villages known as  "Part Neighborhood  Scheme" and  renamed as "Ashok Nagar  Scheme   of  Madras  City  for  planned  development. Declaration under  Section 6  was published  on November 26, 1958. The  Land Acquisition  Officer made  his award   under Section 11  on February  28, 1966.  It is  the case  of  the appellant  that  the  Land  Acquisition  Officer  had  taken possession of  the land  on February  28, 1966 and delivered possession to  the appellant on March 21, 1966. It is not in dispute that  under the  Scheme as  many as 3639 residential houses have  been constructed  and delivered  possession of. The disputed  land in  an extent  of one acre and thirty two cents is set apart for public park in the Scheme which stood vested in the Municipality.      It is  the case  of the respondent that he is the owner of the  land having  title to and possession of the sane for over 30  years preceding  the date  of filing  of the  suit, Viz., April  19,  1984  and  the  appellant  was  sought  to interdict his  possession and enjoyment. Consequentially, he filed  the   suit  for   perpetual  injunction  against  the appellant. Admittedly,  he was  a  servant  of  the  Apparao Mudaliar. The trial Court dismissed the suit. On appeal, the City Civil  Judge  decreed  the  suit  and  the  High  Court confirmed the same. Thus these appeals by special leave.      It is  contended by  Mr. R.F.  Nariman, learned  senior counsel appearing  for the  respondents, that in a mere suit for injunction  though incidentally  founded on  title,  the courts  are   require  to   record  a  finding  whether  the

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respondents were in possession of the land as on the date of the suit  and if  finding of being in possession is recorded then they  are  entitled  to  perpetual  injunction  against everyone except  the true owner. In this cases all the three courts concurrently  found as  a fact  that the  respondents were in  possession of  the land as on the date of the suit. The appellant  had not  proved that  possession was taken by the Land  Acquisition Officer  from the respondents. Thereby the right,  title and  interest held  by the respondents was not  divested  by  operation  of  Section  16  of  the  Act. Therefore, the  respondents continue  to remain  to  be  the lawful owner.  Accordingly, they  are entitled to injunction against everyone  including the  appellant-Board. In support of his  contention, he  placed strong  reliance  on  Balwant Narayan Bhagde  vs. M.D.  Bhagwat &  ors. [(1975)  Supp. SCR 250].      The question  is: whether  the  premise  on  which  the learned counsel  has projected  the case is based on legally acceptable legal  premise? It  is true  that when  the  High Court has,  as a  pure appreciation  of evidence, considered and recorded  as a  fact a  finding on  possession, normally this Court  would accept  such finding  and proceed  on that premise to  decide substantial  question of  law  of  public importance, exercising  the  power  under  Article  136.  As stated earlier, whether the High Court has proceeded on that premise is the question. With due respect, the learned Judge has proceeded  in recording  a  fact  without  adverting  to operation of  relevant provisions of the Act, failed to draw legal inferences  from admitted  or  proved  facts  and  had wrongly drawn  the  inference  that  the  acquisition  stood lapsed  which   constitute  patent   error  giving  rise  to substantial question of law. It is an admitted fact that the land was acquired under the Act after due publication of the declaration under  Section 6. As rightly contended by Mr. S. Sivasubramaniam, learned  senior counsel  appearing for some of the  respondents, conclusiveness  of the  public  purpose stands  established.  Thereafter,  procedure  prescribed  in Chapter III  of the  Act requires  to be  followed and  as a fact, admittedly,  the LAO  made his  award on  February 28, 1966 and  issued notice  under Section  12. All  the parties received compensation  except in  respect  of  the  land  in question.  As  a  matter  of  law  under  Section  30,  when claimant/owner receives  compensation with  without protest, LAO  should   pay  the   same.  In  case,  no  one  received compensation, he is enjoined under Section 30 to deposit the compensation in  the court  to which reference under Section 18 would  lie and  to make  the reference  under Section  30 accordingly. It is seen from the evidence that the LAO found one Apparao  Madaliar and  Nataraja Mudaliar had interest in the land  bearing Survey  No.140/4 of  an extent of one acre and thirty two cents. Accordingly, in his award he mentioned that since  all of them have laid the claim, he referred the dispute under  Section 30  and deposited the compensation in the court.  As a  corollary, possession  would be  taken and thereafter the land stands vested in the State under Section 16 free from all encumbrances.      The question is: whether the land in question was taken possession?  The   issue  squarely  arises  vis  a  vis  the respondents.  Unfortunately,   the   respondents   had   not impleaded the  LAO who  had taken  possession and  delivered possession of  the land  to the  appellant.  It  is  not  in dispute that  under Ex.P-5,  the LAO delivered possession to the appellant.  Therefore,  as  rightly  contended  by  Shri Harish Salve, learned senior counsel for the appellant, that the presumption  under Section  114(e) of  the Evidence  Act

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would consequently  get attracted to the facts in this case. The LAO  in discharge  of his  official  duty  after  taking possession of the disputed land along with other lands, had, in turn,  delivered the  same to  the appellant.  It is seen that 339 acres of land acquired by a common notification was taken and the award came to be made and possession was taken of all  the lands.  Question arises:  whether  it  would  be possible for  the LAO  to take  physical possession  of  the entire 339 acres of land and deliver the same to the Housing Board? The  approach to  the question  must be pragmatic and realistic but  not purely  legalistic. It  is true  that  in Balwant Narayan Bhagde’s case, Untwalia, J. had held at page 263 thus:      "The question  is what  is the mode      of taking  possession? The  Act  is      silent   on   the   point.   Unless      possession is  taken  Concerned the      mode  of   taking  the   possession      obviously   would    be   for   the      authority to  go upon  the land and      to do some act which would indicate      that  the   authority   has   taken      possession of  the land.  It may be      in the  form of  a  declaration  by      beat of  drum or  otherwise  or  by      hanging a  written  declaration  on      the spot  that  the  authority  has      taken possession of the land"      Bhagwati, J.  (as he then was) speaking for two members had held that :      "There can be no question of taking      ’symbolical’  possession   in   the      sense   understood    by   judicial      decisions under  the Code  of Civil      Procedure.  Not   would  possession      merely on paper by 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  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   as   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      laying 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  waster  and  arable  and      should,   therefore,    be    taken      possession of  and determining  its      extent,    was     sufficient    to      constitute taking of possession. It

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    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 and 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 of      any   fraudulent    or    collusive      transaction of  taking  mere  paper      possession, without the occupant or      the owner  every coming  to know of      it."      It is  settled law by series of judgments of this Court that one  of the  accepted modes of taking possession of the acquired land  is recording  of a memorandum or Panchnama by the LAO  in the presence of witnesses winged by him/them and that would  constitute taking  possession of  the land as it would be  impossible to  take  physical  possession  of  the acquired land. It is common knowledge that in some cases the owner/interested  person   may  not   cooperate  in   taking possession of the land.      It is  seen that  in a letter written by the respondent himself, admitting the title of the Board to the land in the said survey  number, he  sought for allotment of alternative site. In  other words,  unless possession is taken and he is divested of  the  title  and  the  same  is  vested  in  the appellant, he  cannot make  request  to  the  appellant  for providing him  alternative site.  It is not his case that at that stage he was still continuing to have title to the land in  dispute.’   The  admission   is  inconsistent  with  and incongruous to  his interest.  He was  also aware that award was made and the possession obviously should have been taken thereunder. It  is true  that normally  possession  is  nine times the  title. If  that principle  is extended  to public acquisition  by   illegal  squatting,  erstwhile  owner  has compensation  as   well  as   possession  of   the  land  by encroachment upon  his erstwhile  land  and  claim  that  he remained in  possession. Such  construction would defeat the public purpose.  As pointed out earlier, the LAO is the best person to speak to the factum of taking and giving delivery, to the  appellant, of  the possession  of the land in survey No.140/4 along  with other lands but he was not impleaded as party defendant  to the  suit. It  is  seen  that  when  the respondent is  asserting his  legal title  to  the  acquired land, he should have necessarily the Government impleaded as party and  claimed his possession as against the Government. That was  not done. The Board having had possession from the LAO, cannot  be expected  to prove  how the  LAO  had  taken possession of the land.      From the  facts in  this case,  it would  be clear that possession must  have been  taken of  the land consisting of 339 acres  including 1.33  acres in  survey No. 140/4. It is seen that when the land was acquired for planned development of the  city and a large chunk of buildings has already been built up  and the land admeasuring about 1 acre 32 cents has been set  apart for park purpose, obviously along with other

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lands,  the   disputed  land   was  taken   possession   and construction was made as per plans. Would it be possible for the appellant, without delivery of possession to the Housing Board, to construct such massive constructions and leave out only this part of the land bearing survey No.140/4 which was set a  part for  public purpose,  namely, public  amenity of part? The  making of  the plan  would emerge  only after the land is taken possession and demarcation thereof is made and constructions are  carried out.  It is  erroneous to believe that possession  still remained with the respondents and the LAO had  not taken possession only of this piece of land. It is not  the case  of the  respondent that he resisted taking possession of the land by LAO and thereafter the LAO took no action to  have him  dispossessed. The  single Judge has not adverted to  these material  facts  and  the  circumstantial evidence available  from the established facts. He proceeded to consider  on the premise that since the acquired land was not used  for building purpose and possession was not taken, acquisition stood lapsed. Equally erroneous is the reasoning given by  the District  Judge.  The  High  Court  is  wholly illegal in  its conclusion.  The District Judge proceeded on the premises  that the  revenue records do not show the name of the  appellant mutated and the land was not registered in the name  of the  appellant. These  circumstances are wholly illegal and  unjustified. Section  12 [3]  of the Act itself exempts registration of the land acquired under the Act. The District  Judge   had  obviously   ignored   the   statutory provisions. It was unnecessary for the Housing Board to have the lands  mutated in  the revenue records and have its name entered therein.  It was  not for  its purpose.  It was  for public purpose,  i.e., for  construction of  the houses  and allotment  thereof   to  the   needy  persons.   After   the construction of  the houses, the public park stood vested in the acquisition.  Obviously, at  this stage the Municipality would  have   come  to   take  possession   exercising   its jurisdiction when  illegal encroachment  was  found  on  the land. At this stage, notice was given to the respondents and the respondents filed the suit for perpetual injunction.      Thus considered,  the title  of the  land in Survey No. 140/4 having  been vested in the appellant, to whomsoever it belonged earlier, it stood divested from him/them and no one can lay  any claim  to the  said acquired land once over and claim injunction  on that  basis. The injunction, therefore, cannot be issued against the true owner, namely, the Housing Board in  whom the  land ultimately  stood vested  and  then stood transferred to Municipal Corporation. A trespasser can not claim  injunction against the owner nor can the court to issue the same.      Thus considered, we are of the view that grave error of law was committed by the High Court in confirming the decree of  the   appellate  Court.  Accordingly,  the  decrees  and judgments of  the first  appellate Court  and the High Court stand set aside and that of the trial Judge stands restored.      The appeals are accordingly allowed. No costs.