State of Punjab Th.Dig Prisons Pb. Vs Jagjit Singh & Ors.

In the present appeal, the challenge is to the impugned order dated 04.03.1994 passed by the learned Single Judge, whereby the challenge to the acquisition proceedings, which had been initiated by the appellantState for the construction of New Central Jail, Ludhiana vide notification dated 25.01.1978 was set aside on the basis of the instructions (vide letter No. 1/55/78-LR(i) 26008) dated 18.12.1979 issued by the Government of Punjab, according to which, possession of the land in question which had been acquired was required to be taken within a period of one year of acquisition; otherwise, the acquisition so done would stand lapsed. While passing the impugned order dated 04.03.1994, learned Single Judge has held that since the actual possession of the land in question was not taken by the State within the stipulated period of one year, therefore, as the actual possession of the land so acquired continued to remain with the respondents,

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hence, the acquisition proceedings were set-aside.

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Certain facts need to be mentioned for the correct appreciation of the issue in hand.

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In order to construct the jail premises in District Ludhiana, a notification under the provisions of the Land Acquisition Act, 1894 (herein after referred to as ‘the 1894 Act’) was issued for acquisition of land in question by the Competent Authority on 25.01.1978. The said notification was issued for the emergent acquisition of the land in question, so as to construct the jail premises in the District Ludhiana. In view of the emergent provisions having been invoked, possession of the land was taken vide Daily Diary Report (Rapat Roznamcha) dated 20.03.1978 for the year 1977-78 (Annexure R-2/T) and was handed over to the Jail Authorities.

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Thereafter, an award dated 28.12.1979 was passed by the Land Acquisition Collector while dealing the question of grant of interest on compensation. The said award showed that possession was not handed over to the department.

¶20

The said award was subsequently challenged by the writ petitioners (respondents herein) by way of filing a writ petition in the year 1984. The primary contention raised by the writ petitioners which challenging the award dated 28.12.1979, as well as the act of taking over of possession of land by authorities concerned, was based upon the instructions dated 18.12.1979 issued by the Government of Punjab. According to the said instructions, in case possession of the land sought to be acquired had not been taken within a period of one year from the notification issued under Section 6 of the Land Acquisition Act, such acquisition would stand lapsed.

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The contention raised by the respondents/writ petitioners before

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the learned Single Judge was that the actual possession of the land in question continued to remain with them even after a period of approximately five years from the initiation of the acquisition proceedings and the passing of the award dated 20.03.1978. Therefore, it was argued that the said award which was passed qua the land in their possession should be deemed to have been lapsed keeping in view the instructions dated 18.12.1979 and that the respondents before the learned Single Judge who are appellants herein be restrained from taking the actual possession of the said land.

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The State contested the claim of the respondents by placing on record certain facts that, as per the revenue record, particularly the Jamabandi for the year 1975–76, the owner of the land in question was shown to be the Gram Panchayat of the area in question. It was further contended that possession of the land in question had already been taken from the said Gram Panchayat on 20.03.1978 and an entry in the Daily Diary Report (Rapat Roznamcha) to that effect had already been entered into whereby it had been clearly stipulated that land acquired belongs to Gram Panchayat of village Jamalpur, Awan. Therefore, the plea being raised by the respondents that the land continued to remain in their possession even after a period of five years of passing of award dated 28.12.1979 and as per the instructions dated 18.12.1979 and that, in view of the instructions dated 18.12.1979, the acquisition should be treated as having lapsed, is incorrect.

¶27

The learned Single Judge, after appreciating all the issues raised, vide impugned order dated 04.03.1994, came to the conclusion that though, an entry in the Daily Diary Report (Rapat Roznamcha) No. 224 dated 20.03.1978 to the effect that possession of land in question has been taken into consideration, was entered into record but as a matter of fact, the same

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is only to be deemed as a symbolic possession. Since the actual possession of the land continued to remain with the respondents-writ petitioners, the learned Single Judge took into consideration the instructions dated 18.12.1979 and held that the acquisition of the land belonging to the respondents is bad in law and same stands nullified. Consequently, the acquisition proceedings, which had been initiated in respect of the said land were treated as having been withdrawn or abandoned pursuant to the notifications issued by the State under Sections 4 and 6 of the Land Acquisition Act as per instructions dated 18.12.1979.

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Hence, the present appeal is being preferred by the appellantState challenging the impugned order dated 04.03.1994 passed by the learned Single Judge.

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Learned counsel appearing on behalf of the appellant-State submits that the reliance which is being placed by the learned Single Judge upon the instructions dated 18.12.1979 so as to treat the acquisition of land have been lapsed is incorrect on two accounts. Firstly, that the said instructions was withdrawn later in the year 1980 and second, the question as to validity of said instructions so as to invoke the lapse of acquisition as a matter of right has already been dealt with by the Hon’ble Supreme Court of India, wherein it has been held that the instructions dated 18.12.1979 cannot be relied upon to invalidate acquisition proceedings merely on the ground that possession of the land sought to be acquired was not taken within a period of one year from the issuance of the notification under Section 6 of the Land Acquisition Act which settled principle of law qua the instructions dated 18.12.1979 was in existence but was ignored by the learned Single Judge.

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Learned counsel for the appellant further argues that the learned

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Single Judge has erred while recording the findings that the acquisition done by appellant in the present case is bad by placing reliance upon the instructions dated 18.12.1979.

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Learned counsel for the appellant further argues that a dispute was already existing with regard to the ownership of the land in question at the hands of the predecessor-in-interest of the respondents as well, as the gram panchayat had raised the challenge to the allotment of the said land in the hands of the predecessor-in-interest of the respondents which proceedings were pending at the time when the land was sought to be acquired in the year 1978 and as per the revenue record, owner was Gram Panchayat. It is, therefore, contended that on the date when the land was sought to be acquired, the revenue record reflected that the ownership of the land was in the name of the Gram Panchayat, from whom possession had already been taken in the year 1978, which is clear from Roznamcha Report dated 20.03.1978. Hence, the findings recorded by the learned Single Judge which are based upon the instructions dated 18.12.1979, were factually incorrect as the land in question belonged to Gram Panchayat from whom the possession had already been taken hence the impugned order passed by the learned Single Judge is liable to be set aside on this ground as well. 13. On the other hand, learned Senior counsel appearing on behalf of the respondents/writ petitioners submits that the import of the instructions dated 18.12.1979, by learned Single Judge so as to record a findings that acquisition of land stood lapsed was perfectly valid and legal. Learned Senior counsel for the respondents further argues that even otherwise, merely that an entry has been recorded in Daily Diary Report (Rapat Roznamcha) to the effect that possession of land in question has been taken

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on 20.03.1978 and that too without stating that the same is being done on the basis of the power given by the Collector to do so, who is only authorized to seek the possession of the land in question, the Daily Diary Report (Rapat Roznamcha) dated 20.03.1978 will not give a right to State to claim that the possession of the land in question had been taken by them on such date , especially when, the actual possession of the land still remained with the respondents, hence, once even after a period of more than four decades the land remains in possession with the respondents, the acquisition of land so done has to be treated as lapsed as the said land has not been used for the purpose for which, the same was acquired. Therefore, the acquisition is liable to be treated as having lapsed.

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Learned Senior counsel for the respondents also submits that since there were trees and crops standing on the land in question belonging to respondent No. 1, which is also clear from records placed, possession of land in question could not have been taken from the respondents without first offering them the compensation for the same, prior to the passing of the award. Therefore, the acquisition has rightly been set-aside by the learned Single Judge, though the occasion to adjudicate upon this aspect did not arise, as, the learned Single judge allow the writ petition on the basis of the instructions dated 18.12.1979.

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Learned Senior Counsel further argues that actual possession of the land was never taken from the respondents, and the Gram Panchayat had no authority to hand over possession of the same in the year 1978, as, the said Gram Panchayat was not in existence at that time, as no elections of the Gram Panchayat had been held after the year 1975. Therefore, the assertion that possession of land was taken from the Gram Panchayat is incorrect.

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We have heard learned counsel for the appellant-State as well as learned Senior Counsel for the respondents and have gone through the case file with their able assistance.

¶50

Certain facts, which are very relevant for the adjudication of the present case, are that the predecessor-in-interest of the respondents/writ petitioners had been allotted the land from evacuee pool. However, the said allotment was made the subject matter of challenge by the Gram Panchayat, and the dispute was pending before the competent authorities on the date when the acquisition notification was issued with respect to the land in question.

¶51

It is a conceded position that on the date when the notification for acquisition of the land was issued in 1978, the revenue record showed the Gram Panchayat as the owner of the land in question. Further, the possession of the land in question in pursuance to the emergent acquisition was taken from the gram panchayat by the authorities concerned, an entry to which effect in the Daily Diary Report (Rapat Roznamcha) dated 20.03.1978 has already been recorded.

¶52

The question which arises is whether, in view of these facts, the acquisition sought to done can be deemed to have been lapsed, as has been held by the learned Single Judge, based on the instructions dated 18.12.1979. 20. It is a conceded fact before this Court also that though the instructions dated 18.12.1979 were issued but, the same were withdrawn within the short period of time in the year 1980. The question which now arises is whether the acquisition of the land can be treated as having been lapsed merely on the ground that actual possession of land in question remained with the respondents.

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It may be noticed that, the learned Single Judge has recorded a finding that the Daily Diary Report (Rapat Roznamcha), by which possession of the land in question was taken on 20.03.1978 is correct but such possession is to be treated as a symbolic possession only.

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The learned Single Judge, went ahead to hold in favour of the respondents-writ petitioners that actual possession of the land in question continued to remain with them, hence as per instructions dated 18.12.1979, acquisition will lapse.

¶58

The next question which now arises is whether, the entry recorded in the Daily Diary Report (Rapat Roznamcha) with regard to taking of the possession of land would be good enough to hold that the possession of the acquired land in question was taken or not so a to decide the lapsing of the acquisition.

¶59

The said question of law has already been settled by the Hon’ble Supreme Court of India in SLP (C) Nos. 9036-9038 of 2016, titled as Indore Development Authority versus Manoharlal and others etc. , decided on 06.03.2020. The relevant paragraphs of the said judgment 270 to 277 are as under:-

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“270. The decision in Velaxan Kumar (supra) cannot be said to be laying down the law correctly. The Court considered the photographs also to hold that the possession was not taken. Photographs cannot evidence as to whether possession was taken or not. Drawing of a Panchnama is an accepted mode of taking possession. Even after re-entry, a photograph can be taken; equally, it taken be taken after

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committing trespass. Such documents cannot prevail over the established mode of proving whether possession is taken, of lands. Photographs can be of little use, much less can they be a proof of possession. A person may 175 (1979) 4 SCC 27 176 (1988) Supp. SCC 488 (1998) 4 SCC 387 re-enter for a short period or only to have photograph. That would not impinge adversely on the proceedings of taking possession by drawing Panchnama, which has been a rarely recognised and settled mode of taking possession.

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271. In the decision in Raghbir Singh Sehrawat v. State of Haryana178, the observation made was that it is not possible to take the possession of entire land in a day on which the award was declared, cannot be accepted as laying down the law correctly and same is contrary to a large number of precedents. The decision in Narmada Bachao Andolan v. State of M.P179, is confined to particular facts of the case. The Commissioner was appointed to find out possession on the spot. DVDs. and CDs were seen to hold that the landowners were in possession. The District Judge, Indore, recorded the statements of the tenure-holder. We do not approve the method of determining the possession by appointment of Commissioner or by DVDs and CDs as an acceptable mode of proving taking of possession. The drawing of Panchnama contemporaneously is sufficient and it is not open to a court Commissioner to determine the factum of possession within the purview of Order XXVII, Rule 9 CPC. Whether possession has been taken, or not,

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is not a matter that a court appointed Commissioner cannot opine. However, drawing of Panchnama by itself is enough and is a proof of the fact that possession has been taken.

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(2012) 1 SCC 792 (2011) 7 SCC 639

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272. It was submitted on behalf of landowners that under Section 24 the expression used is not possession but physical possession. In our opinion, under the Act of 1894 when possession is taken after award is passed under section 16 or under section 17 before the passing of the award, land absolutely vests in the State on drawing of Panchnama of taking possession, which is the mode of taking possession. Thereafter, any re-entry in possession or retaining the possession is wholly illegal and trespasser’s possession inures for the benefit of the owner and even in the case of open land, possession is deemed to be that of the owner. When the land is vacant and is lying open, it is presumed to be that of the owner by this Court as held in Kashi Bai v. Sudha Rani Ghose180. Mere re-entry on Government land once it is acquired and vests absolutely in the State (under the Act of 1894) does not confer, any right to it and Section 24(2) does not have the effect of divesting the land once it vests in the State.

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273. In Maria Margadia Sequeria v Erasmo Jack De Sequeria 181, approving a decision of this Court, this court clarified what amounts to "possession" in law and held:

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"Possession is flexible term and is not necessarily restricted to mere actual possession of the property. The legal conception of

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possession may be in various forms. The two elements of possession are the corpus and the animus. A person though in physical possession may not be in possession in the eye of law, if the animus be lacking. On the contrary, to be in possession, it is not necessary that one must be in actual physical contact. To gain the complete idea of possession, one must consider 180 AIR 1958 SC 434 2012 (5) SCC 370

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(i) the person possessing, (ii) the things possessed and, (iii) the persons excluded from possession. A man may hold an object without claiming any interest therein for himself. A servant though holding an object, holds it for his master. He has, therefore, merely custody of the thing and not the possession which would always be with the master though the master may not be in actual contact of the thing. It is in this light in which the concept of possession has to be understood in the context of a servant and master."

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************** ***** ************** Principles of

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law which emerge in Maria Margadia Sequeria (supra) are crystallized as under:-

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“1. No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property."

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274. In the decision reported as National Thermal Power Ltd v Mahesh Dutta182 this court held that:

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“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 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.

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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

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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.

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30. Another striking feature of the case is that all the actions had been taken in a comprehensive manner. The Collector in his 2009 (8) SCC 339 certificate of possession dated 16th November, 1984 stated that the possession had been taken over in respect of the entire land;

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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. 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.”

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275. In V. Chandrasekaran & Anr. v. Administrative Officer & Ors.183, the land was acquired and possession was handed over to the authorities. Later on the land was sold, documents were manipulated, and flats were constructed in an illegal manner. It

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was held that the land once acquired, cannot be restored. The State has no right to reconvey the land and no person can claim such a right nor derive an advantage. Sale of land after a notification under section 4 of the LA Act was held to be void. It was held in the facts of the case that the judicial process cannot be used to subvert its way. Such persons must not be permitted to profit from the frivolous litigation, and they must be prevented from taking false pleas by relying on forged documents or illegal action.

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276. We have seen the blatant misuse of the provisions of section 24(2). Acquisitions that were completed several decades before even to say 50- 183 (2012) 12 SCC 133 60 years ago, or even as far back as 90 years ago were questioned; cases filed were dismissed. References were sought claiming higher compensation and higher compensation had been ordered. Now, there is a fresh bout of litigation started by erstwhile owners even after having received the compensation in many cases by submitting that possession has not been taken and taking of possession by drawing a Panchnama was illegal and they are in physical possession. As such, there is lapse of proceedings.

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277. The court is alive to the fact that are a large number of cases where, after acquisition land has been handed over to various corporations, local authorities, acquiring bodies, etc. After depositing compensation (for the acquisition) those bodies and authorities have been handed possession of lands. They, in turn, after development of such acquired lands have handed over properties; third party interests have intervened and now declaration is sought under the cover of section 24(2) to invalidate all such actions. As held by us, section 24 does not intend to cover such cases at all and such gross misuse of the provisions of law must stop. Title once vested, cannot be

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obliterated, without an express legal provision; in any case, even if the landowners’ argument that after possession too, in case of non-payment of compensation, the acquisition would lapse, were for arguments’ sake, be accepted, these third party owners would be deprived of their lands, lawfully acquired by them, without compensation of any sort. Thus, we have no hesitation to overrule the decisions in Velaxan Kumar (supra) and Narmada Bachao Andolan (supra), with regard to mode of taking possession. We hold that drawing of Panchnama of taking possession is the mode of taking possession in land acquisition cases, thereupon land vests in the State and any reentry or retaining the possession thereafter is unlawful and does not inure for conferring benefits under section 24(2) of the Act of 2013. ”

¶105

A bare perusal of the above would show that the law on the said issue is settled that entry recorded in the Daily Diary Report (Rapat Roznamcha) qua taking of possession is good enough to treat that the possession has been taken, even if, actual possession remains with the original land owner.

¶106

Applying the said principle of law in the facts and circumstances of present case, once, the report No. 224 recorded in Daily Diary Report (Rapat Roznamcha) dated 20.03.1978 has gone unrebutted at the hands of respondents and same has been accepted even by the learned Single Judge, the possession of the land in the present case is to be treated with the State, for all intents and purposes in pursuance to the acquisition proceedings.

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Learned senior counsel for the respondents has not been able to

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dispute the settled principle of law noticed herein before, but submits that the entry in the Daily Diary Report (Rapat Roznamcha) dated 20.03.1978 ought to have been made by the Collector as per law and not by the Patwari, therefore, the said report cannot be treated as valid and hence, cannot be relied upon so as to treat the possession of the same with State.

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It may be noticed that the land in question was acquired under an emergent situation for setting up the jail premises in the area in question. It is also clear that before passing of the Award dated 28.12.1979, the possession of the land was taken from the Gram Panchayat on 20.03.1978, which authority was described as the owner of land in question as per the revenue record. The argument raised that the Daily Diary Report (Rapat Roznamcha) should clearly state that possession of said land was taken upon the direction of the Collector, and that until such words are recorded, the report cannot be treated as valid, cannot be accepted.

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Once possession of the land in question was taken pursuant to the acquisition in emergent situation, the fact that the Daily Diary Report (Rapat Roznamcha) dated 20.03.1978 does not explicitly mention that same was done under the instructions of the Collector and was earlier done by Patwari does not diminish its evidentiary value. Even the learned Single Judge had accepted the validation of said Daily Diary Report dated 20.03.1978, though treated it the same as symbolic possession. The said finding has never been challenged by the respondents. Once, the said symbolic possession has been held to be treated as a valid possession as per law in Indore Development Authority’s case (supra) , now, disputing the Daily Diary Report (Rapat Roznamcha) dated 20.03.1978 on the ground that there is no mention that the same was done on the asking of the collector,

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cannot be treated as a valid reason to deny the benefit of possession being taken by the State over the land, which was acquired in an emergent situation for setting up the jail premises..

¶118

Further, another argument raised by the learned Senior counsel for the respondents is that since there was no offer for compensation at the time of taking up the possession of the land which was required to be offered, the same will invalidate the acquisition proceedings, done qua the land in question.

¶119

It may be noticed that at the time when the acquisition proceedings were initiated, there was a litigation pending between the predecessor-in-interest of the respondents and Gram Panchayat regarding the ownership of land in question. The said proceedings had not attained finality so as to treat the predecessor-in-interest as the undisputed owner of the land in question, which was being acquired for setting up the jail premises.

¶120

Further, at the time of acquisition even the revenue record showed the land to be in the ownership of the Gram Panchayat. Since the Gram Panchayat was described as the owner and compensation was deposited at the time of award, the respondents cannot claim that they should have been offered compensation, especially when no such claim was raised by predecessor-in-interest of the respondents.

¶121

Moreover, the award passed subsequently in 1979 provided for the payment of compensation to the owners i.e. the Gram Panchayat, which was deposited and withdrawn. Therefore, the ground taken by the respondents to challenge the acquisition, basing the same on the instructions dated 18.12.1979, in the facts and circumstances of the present case, has not been appreciated in a correct manner by the learned Single Judge.

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Further, reliance had been placed by the learned Single judge on the instructions dated 18.12.1979 so as to hold the acquisition as lapsed, cannot be upheld as the validity of said instructions were considered by the Hon’ble Supreme Court of India wherein the same was held to be invalid so as to set-aside the acquisition proceedings. The Hon’ble Supreme Court of India in Civil Appeal Nos. 2218-20 and 2222-30 of 1984 titled as The State of Punjab and others versus Ranjit Singh and others, decided on 05.05.1987 unequivocally held that the instructions dated 18.12.1979 cannot give a right to set-aside the acquisition as executive instructions have no power to supersede an act which is primary in nature, which judgment has been ignored by the learned Single Judge while passing the impugned order.

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The similar view has again taken by Hon’ble Supreme Court of India while passing the judgment dated 21.11.2001 in Civil Appeal No. 4904-4905 of 1991 titled as The State of Punjab and Another versus Gurtej Singh and others.

¶127

Learned Senior Counsel appearing on behalf of the respondents has not been able to rebut the fact that the instructions dated 18.12.1979 have been held to be invalid by the Hon’ble Supreme Court of India and same cannot be relied upon to set aside an acquisition on the ground that possession was not taken within one year of the notification issued under Section 6 of the Act.

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Even otherwise, the reliance placed by the learned Single Judge on such instructions, while ignoring the settled principle of law already in existence, cannot be upheld.

¶129

Hence the order passed by the learned single Judge dated 04.03.1994 setting aside the acquisition, cannot be sustained in the eyes of

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law.

¶134

Further, the allotment of the land in question in favour of the predecessor-in-interest of the respondents attained finality only after the acquisition proceedings had already attained finality; coupled with the fact that during the time of the acquisition, the revenue record reflected that the Gram Panchayat is the owner of the land in question, therefore, the only right that can be claimed by the respondents is to seek compensation for the acquired land, which had been granted to predecessor-in-interest of respondents/writ petitioners. Hence, the respondents cannot contend that any inaction on the part of the Gram Panchayat in respect to the acquisition gives them a right to challenge the acquisition proceedings. The said claim of the respondents cannot be allowed to frustrate the claim especially when, the acquisition was carried out under emergent circumstances for the establishment of jail premises.

¶135

Once the land in question is treated as part of the jail premises, and continues to remain so, the mere fact that actual possession is with the respondents due to pending litigation does not entitle them to seek setting aside of the acquisition proceedings.

¶136

Moreover, it may be noticed that the total land which was acquired for the jail premises was 425 kanals and 17 marlas, out of which, the 116 kanals 15 marlas is the subject matter of the present appeal, which means that due consideration was given for the acquisition of the land in question and the land which was concededly acquired, though set-aside by the learned Single judge while passing the impugned order dated 04.03.1994, by applying the instructions dated 18.12.1979. As per the judgment of the Hon’ble Supreme Court of India in Indore Development Authority’s case

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(supra) , any land owners who, after passing of an award under 1894 Act whereby such land owners’ land ‘s possession has been given to State by a roznamcha report, do not vacate the same or if such land owners re-enter the land, such persons have been termed as “trespassers”. No relief can be claimed by a trespasser and that too to treat the acquisition having been lapsed on account of unauthorized possession

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Present order is dictated in open Court. No other arguments have been raised.

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keeping in view the above, the order passed by the learned Single Judge dated 04.03.1994, is hereby set-aside and the present appeal is allowed and consequently, the writ petition filed by the writ-petitioners/respondents herein stands dismissed.

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