1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 28th DAY OF MARCH 2014 BEFORE: THE HON'BLE MR. JUSTICE ANAND BYRAREDDY WRIT PETITION Nos.34297 AND 37898-37902 OF 2012 AND 37903-37904 OF 2012 (LA-RES) CONNECTED WITH WRIT PETITION No.37432 OF 2012 (LA-RES) WRIT PETITION No.37454 OF 2012 (LA-RES) WRIT PETITION Nos. 39887-39891 OF 2012 AND 42427-42428/2012 (LA-RES) WRIT PETITION No.[SECTION]131 OF 2012 (LA-RES) WRIT PETITION Nos.29470-29471 OF 2012 (LA-RES) WRIT PETITION No.40874 OF 2012 (LA-RES) WRIT PETITION Nos.47933-47940 OF 2012 (LA-RES) WRIT PETITION No.52309 OF 2012 AND WRIT PETITION Nos.13767-13769 OF 2013 (LA-RES) IN [CASE NUMBER] BETWEEN: 1. [ENTITY], Son of Late Nanaiah, 2 Aged about 51 years, 2. [ENTITY], Son of Late Javaraiah H.D., Aged about 48 years, 3. [ENTITY], Son of Late Rangaiah H.D., Aged about 44 years, 4. [ENTITY], Son of Late Rangaiah H.D., Aged about 62 years, Petitioners 1 to 4 are Residing at Ambedkarnagara, Holenarsipura Taluk, Hassan District - 573 211. 5. [ENTITY], Wife of [ENTITY], Aged about 65 years, Residing at Seethavilas Road, Holenarsipura Taluk, Hassan District - 573 211. 6. [ENTITY], Wife of Late Puttegowda, Aged about 62 years, Residing at Sooranahalli, Holenarsipura Taluk, Hassan District - 573 211. 7. [ENTITY], Son of Late [ENTITY], 3 Aged about 80 years, Residing at Kote Holenarsipura Town, Hassan District - 573 211. 8. [ENTITY], Son of Late [ENTITY], Aged about 72 years, Residing at Pete Holenarsipura Town, Hassan District - 573 211. PETITIONERS ( By Shri. [ENTITY], Advocate) AND: 1. [ENTITY], Represented by its Principal Secretary, Department of Revenue, M.S.Building, Dr. [ENTITY], Bangalore - 560 001. 2. The Assistant Commissioner And Land Acquisition Officer, Hassan Sub-Division, Hassan - 573 201. 3. Town Municipal Council, Holenarsipura Taluk, Hassan District - 573 211, Represented by its Chief Officer. RESPONDENTS (By Shri. [ENTITY], Additional Government Advocate for Respondent Nos. 1 and 2 Shri. [ENTITY], Advocate for Caveator / Respondent No.3) 4 These Writ Petitions filed under [SECTION] and [SECTION] of the [ACT], praying to quash the order dated 7.8.2012 passed by first respondent vide Annexure-E and declare that the lands belonging to petitioners has not been taken possession of under the provisions of [ACT] issue an appropriate writ or order reviving the notification dated 22.7.2000 issued under Section 48(i) of the Act in No.KA E 20 LAQ 2000 vide Annexure-A. IN W.P.No.37432 OF 2012 BETWEEN: Smt. [ENTITY], Since dead by her Legal representatives: a) [ENTITY], son of Bettadaiah, aged about 75 years, b) Smt. [ENTITY], wife of Venkategowda, aged about 53 years, c) Sri. [ENTITY], son of [ENTITY], aged about 48 years, d) Smt. [ENTITY], wife of Chandrakanth, aged about 45 years, e) Sri. Ravi Kumar, son of [ENTITY], 5 aged about [SECTION] years, f) Sri. Gopi, son of [ENTITY], aged about 34 years, all are resident of residing at Gowri-Keshava Krupa, Behind Priyadarshini School, Holenarasipura Town, Holenarasipura. PETITIONERS (By Shri. [ENTITY], Advocate) AND: 1. [ENTITY], Represented by its Principal Secretary, Department of Revenue, M.S.Building, Dr. ambedkar Veedhi, Bangalore - 560 001. 2. Assistant Commissioner and Land Acquisition Officer, Hassan Sub-Division, Hassan - 573 201. 3. Town Municipal Council, Holenarasipura, Hassan District - 573 211 Represented by its Chief Officer. RESPONDENTS 6 (By Shri. [ENTITY], Advocate for Caveator / Respondent No.3 Shri. [ENTITY], Additional Government Advocate for Respondent Nos. 1 and 2) This Writ Petition filed under [SECTION] and [SECTION] of the [ACT] praying to quash Annexure-T passed by the first respondent on 7.8.2012. IN [CASE NUMBER] BETWEEN: [ENTITY], Wife of [ENTITY], Aged about 39 years, No.1354, 8th Block, Further Extension, Vishweshwariah Layout, Bangalore - 560 091. PETITIONER (By Shri. [ENTITY], Advocate) AND: 1. [ENTITY], Represented by its Principal Secretary, Department of Revenue, M.S.Building, Dr. [ENTITY], Bangalore - 560 001. 2. The Assistant Commissioner, 7 And Land Acquisition Officer, Hassan Sub-Division, Hassan - 573 201. 3. Town Municipal Council, Holenarasipura, Hassan District - 573 201, Represented by its Chief Officer. RESPONDENTS (By Shri. [ENTITY], Additional Government Advocate for Respondent Nos. 1 and 2 Shri. [ENTITY], Advocate for Caveator / Respondent No.3) This Writ Petition filed under [SECTION] and [SECTION] of [ACT] praying to quash the order passed by the first respondent dated 7.8.2012 in case No.1/2011-2012 vide Annexure-AG and etc; IN W.P.Nos.39887-39891/2012 & 42427-42428/2012 BETWEEN: 1. Sri. [ENTITY], Son of Late Thirumalegowda, Aged about 60 years, Retired employee and agriculturist, Resident of Suranahalli Village, Kasaba Hobli, Holenarasipura Taluk - 573 211, Hassan District. 2. Sri. [ENTITY], Son of Late [ENTITY], 8 Aged about 63 years, Occupation: Agriculture, Resident of Holenarasipura Town - 573 211, Hassan District. 3. Sri. [ENTITY], Son of Late [ENTITY], Aged about 59 years, Occupation: Agriculturist, Resident of Suranahalli, Holenarasipura Taluk - 573 211, Hassan District. 4. Sri [ENTITY], Son of Late Shettygowda, Aged about 65 years, Occupation: Agriculture, Resident of Suranahalli, Holenarasipura Taluk - 573 211, Hassan District. 5. Sri. [ENTITY], Son of Late Andanigowda, Aged about 66 years, Occupation: Agriculture, Resident of Suranahalli, Holenarasipura Taluk - 573 211, Hassan District. 6. Sri. [ENTITY], Son of [ENTITY], Aged about 40 years, Occupation: Agriculturist, Resident of Suranahalli, Holenarasipura Taluk - 573 211, 9 Hassan District. 7. Sri. [ENTITY], Son of [ENTITY], Aged about 35 years, Occupation: Agriculturist, Resident of Suranahalli, Holenarasipura Taluk - 573 211, Hassan District. PETITIONERS (By Shri. [ENTITY], Advocate) AND: 1. [ENTITY], Represented by its Principal Secretary, Department of Revenue, M.S.Building, Dr. [ENTITY], Bangalore - 560 001. 2. The Assistant Commissioner, And Special Land Acquisition Officer, Hassan Sub-Division, Hassan - 573 201. 3. Town Municipal Council, Holenarasipura, Hassan District - 573 201, Represented by its Chief Officer. RESPONDENTS 10 (By Shri. [ENTITY], Advocate for Caveator / Respondent No.3 Shri. [ENTITY], Additional Government Advocate for Respondent Nos. 1 and 2) These Writ Petitions filed under [SECTION] and [SECTION] of [ACT] praying to quash the order passed by the first respondent dated 7.8.2012 in case No.1/2011-2012 vide Annexure-Z and etc; IN W.P.No.[SECTION]131/2012 BETWEEN: [ENTITY], Son of Rajanna, Aged 47 years, Residing at Holenarasipura Town, Hassan District - 573 201. PETITIONER (By Shri. [ENTITY], Advocate) AND: 1. [ENTITY], Revenue Department, M.S.Building, Dr. B.R. Ambedkar Road, Bangalore - 560 001. By its Principal Secretary. 2. The Deputy Commissioner, Hassan District, Hassan - 573 201. 11 3. The Land Acquisition Officer and Assistant Commissioner, Hassan Sub Division, Hassan - 573 201. 4. Holenarasipura Town Municipal Council, Holenarsipura, Hassan District - 573 201 By its Chief Officer. RESPONDENTS (By Shri. [ENTITY], Advocate for Caveator/Respondent No.4 Shri. [ENTITY], Additional Government Advocate for Respondent Nos. 1 to 3) This Writ Petition filed under [SECTION] and [SECTION] of the [ACT] praying to quash the Annexure-O the order dated 7.8.2012 passed by the first respondent in [CASE NUMBER] in so far as it relates to [CASE NUMBER][CASE NUMBER] measuring 2.14 acres and 3 guntas of karab land is concerned. IN [CASE NUMBER] BETWEEN: 1. Sri. [ENTITY], Son of Late [ENTITY], Aged about 66 years, Occupation: Business and Agriculture, Resident of Main Road, Holenarasipura Town - 573 211, Hassan District. 2. Sri. [ENTITY], Son of Late [ENTITY], Aged about 57 years, 12 Occupation: Business and Agriculture, Resident of Main Road, Holenarasipura Town - 573 211, Hassan District. PETITIONERS (By Shri. [ENTITY], Advocate) AND: 1. [ENTITY], Represented by its Principal Secretary, Department of Revenue, M.S.Building, Dr. [ENTITY], Bangalore - 560 001. 2. The Assistant Commissioner, And Land Acquisition Officer, Hassan Sub-Division, Hassan - 573 211. 3. Town Municipal Council, Holenarasipura, Hassan District - 573 211, Represented by its Chief Officer. RESPONDENTS (By Shri. [ENTITY], Advocate for Caveator / Respondent No.3 Shri. [ENTITY], Additional Government Advocate for Respondent Nos. 1 and 2) These Writ Petitions filed under [SECTION] and [SECTION] of the [ACT] praying to quash the order passed by first 13 respondent dated 7.8.2012 in case No.1/2011-12 vide Annexure- AE to the writ petition and etc; IN W.P.No.40874/2012 BETWEEN: [ENTITY], Son of Late S.H. Thimmaiah, Age: 56 years, Occupation: Agriculture, Resident of River Bank Road, Near Girls' Junior College Road, TAPCMS Road, Holenarasipura Town, Hassan District - 573 211. PETITIONER (By Shri. [ENTITY], Advocate) AND: 1. [ENTITY], Represented by its Principal Secretary, Department of Revenue, M.S.Building, Dr. [ENTITY], Bangalore - 560 001. 2. The Assistant Commissioner, And Land Acquisition Officer, Hassan Sub-Division, Hassan - 573 201. 3. Town Municipal Council, Holenarasipura, 14 Hassan District - 573 201, Represented by its Chief Officer. RESPONDENTS (By Shri. [ENTITY], Advocate for Caveator / Respondent No.3 Shri. [ENTITY], Additional Government Advocate for Respondent Nos. 1 and 2) This Writ Petition filed under [SECTION] and [SECTION] of the [ACT] praying to quash the order passed by the first respondent dated 7.8.2012 in case No.1/2011-12 vide Annexure-Z and etc; IN [CASE NUMBER] BETWEEN: 1. [ENTITY], Son of Late [ENTITY], Aged about 67 years, Resident of Sooranahalli, Holenarasipura Town, Hassan District. 2. [ENTITY], Son of Late [ENTITY], Aged about 40 years, Resident of Sooranahalli, Holenarasipura Town, Hassan District. 3. [ENTITY], Son of Late Huchhegowda, Aged about 50 years, 15 Resident of Sooranahalli, Holenarasipura Town, Hassan District. 4. [ENTITY], Son of Late [ENTITY], Aged about 56 years, Resident of Sooranahalli, Holenarasipura Town, Hassan District. 5. [ENTITY], Son of Late [ENTITY], Aged about 67 years, Resident of Sooranahalli, Holenarasipura Town, Hassan District. 6. [ENTITY], Son of Late [ENTITY], Aged about 67years, Resident of Sooranahalli, Holenarasipura Town, Hassan District. 7. Smt. [ENTITY], Wife of Late [ENTITY], Aged about 60 years, Resident of Sooranahalli, Holenarasipura Town, Hassan District. 16 8. [ENTITY], Son of Late [ENTITY], Aged about 35 years, Resident of Chittanahalli Village, Kasaba Hobli, Holenarasipura Town, Hassan District. PETITIONERS (By Shri. [ENTITY], Advocate for M/s. Ashok Haranahalli Associates, Advocates) AND: 1. [ENTITY] Department of Revenue, M.S.Building, Dr. [ENTITY], Bangalore - 560 001, Represented by its Principal Secretary. 2. The Assistant Commissioner Cum-Land Acquisition Officer, Hassan Sub-Division, Hassan - 573 201. 3. The Town Municipal Council, Holenarasipura, Hassan District - 573 201, Represented by its Chief Officer. RESPONDENTS (By Shri. [ENTITY], Advocate for Respondent No.3 Shri. [ENTITY], Additional Government Advocate for Respondent Nos. 1 and 2) 17 These Writ Petitions filed under [SECTION] and [SECTION] of the [ACT] praying to quash the order passed by the first respondent case No.1/2011-12 dated 7.8.2012, produced as Annexure-A and etc; IN [CASE NUMBER] and [CASE NUMBER]-[CASE NUMBER] BETWEEN: Smt. [ENTITY], Wife of Late S.A. Laxman, Aged about 75 years, Residing at Sooranahalli Village, Holenarasipura Town, Hassan District - 573 211. PETITIONER (By Smt. [ENTITY], Advocate) AND: 1. [ENTITY], Department of Revenue, M.S.Building, Dr. [ENTITY], Bangalore - 560 001. Represented by its Principal Secretary. 2. The Assistant Commissioner, And Land Acquisition Officer, Hassan Sub-Division, Hassan - 573 201. 3. Town Municipal Council, Holenarsipura Taluk, Hassan District - 573 211. 18 Represented by its Chief Officer. RESPONDENTS (By Shri. [ENTITY], Additional Government Advocate for Respondent Nos. 1 and 2 Shri. [ENTITY], Advocate for Respondent No.3) These Writ Petitions filed under [SECTION] and [SECTION] of the [ACT] praying to quash the order dated 7.8.2012 passed by first respondent herein found at Annexure-E and etc; These petitions having been heard and reserved on 24.3.2014 and coming on for pronouncement of orders this day, the Court delivered the following:- ORDER
These petitions are heard and disposed of by this common order as the petitioners claim to be similarly aggrieved and have preferred these petitions on common grounds.
2. The petitioners in these several petitions are said to be land owners, whose lands were the subject matter of acquisition under the provisions of the [ACT] (Hereinafter referred to as the '[ACT]', for brevity). The preliminary notification under [SECTION] of the [ACT] was said to have been issued on 20.2.19[SECTION] and the final declaration under [SECTION] of the [ACT] was said to have been issued on 29.8.1997. The total extent of land sought to be acquired was said to be 87.23 acres of Dakshinanala, Holenarasipura Taluk. The acquisition was said to be for the formation of a residential layout by the [ENTITY].
However, it transpires that the State government had issued a notification under [SECTION] of the [ACT], withdrawing from the acquisition, vide notification dated 22.7.2000.
The said withdrawal from the acquisition proceedings was challenged in writ proceedings by the Municipality before this court in writ petitions in WP 31[SECTION]6-975/2000 and [CASE NUMBER]. The said petitions are said to have been dismissed by a Division bench of this court by judgment dated 1.3.2002. The same was carried to the apex court in [CASE NUMBER]. It transpires that at the hearing of the said appeal, the counsel appearing on behalf of the State Government had declared that the State government proposed to cancel and withdraw the notification issued under [SECTION] of the [ACT], dated 22.7.2000. On this assurance given on behalf of the State government, the appellants therein had been permitted to withdraw the appeal, by judgment dated 10.9.2007. It then transpires that the State government had withdrawn the notification dated 22.7.2000, vide notification dated 13.9.2007.
Being aggrieved by the cancellation and withdrawal of the notification dated 22.7.2000, the petitioners herein are said to have challenged the said action in writ proceedings before this court. A learned Single Judge is said to have dismissed the petitions. But in an appeal against the order of dismissal in [CASE NUMBER] and connected cases, a Division Bench by its judgment dated 25.11.2010 opined as follows :
"15. In view of the contradictory contentions being putforth by the respondents in the two sets of litigation relating to the same subject matter and that too with pointed reference to the aspect of possession, the same becomes a vital aspect for factual determination. Since the same is a seriously disputed question of fact, it cannot be resolved in the present nature of proceedings under [SECTION] and [SECTION] of the [ACT]. Nevertheless, the same is to be determined by the competent Authority as the same is of utmost importance and is the very essence of the dispute between the parties. We are of the said view, since on such determination, if it is established that in fact possession of the land was not taken by the acquiring authority, the notification dated 22.7.2000 issued under [SECTION] of the Act would not be contrary to the provisions contained therein. In such event, the basis on which the impugned notification dated 13.09.2007 was issued, would get eroded and as such the same would not be sustainable. On the other hand, if it is established that possession of the land in fact had been taken as contended by the respondents, even prior to issue of the notification dated 22.07.2000, the denotification made would be in derogation of the power contemplated under [SECTION] of the Act and would therefore, render the notification issued under the said provision invalid.
16. Hence, in the instant case also, it would be appropriate for us to adopt the same procedure as adopted by the Hon'ble Supreme Court in the decision cited supra by quashed both the impugned notification dated 13.9.2007 as also the notification dated 22.7.2000 issued under [SECTION] of the Act and remit the matter to the Competent Authority viz., the first respondent to reconsider the proceedings at the stage prior to exercise of the power contemplated under [SECTION] of the Act. In this regard, the Competent Authority shall hear both the appellant/land losers as also the beneficiaries viz., the town municipality or such other authority, if any, which has succeeded them and also any other interested persons and after considering all the materials which would be placed by the rival parties an appropriate decision with regard to the aspect relating to taking over of possession of the land shall be taken. If, in such proceedings it is established that as on the date of issue of the notification dated 22.07.2000 under [SECTION] of the Act, the possession of the land was not taken, the Competent Authority shall pass an order reviving the notification dated 22.7.2000. Needless to mention that if the fact of taking over possession prior to 22.07.2000 is established, the declaration dated 29.08.1997 and the acquisition there under would remain valid and as a consequence whereof, the general award dated 03.11.1997 would have to be treated as valid. However, in such event keeping in view of the nature of dispute that had ensued between the parties, the Land Acquisition Officer shall issue fresh notice to the appellant/land losers under [SECTION] of the Act intimating the passing of award. Considering that we have arrived at the above conclusion, keeping in view the decision of the Hon'ble Supreme Court which is applicable to the facts on hand, we do not find it necessary to advert to the decision of the Division bench of this Court in the case of Vijaya Leasing Ltd. cited by the learned counsel for the appellants."
Pursuant to the above directions, the first respondent herein has passed an order dated 7.8.2012, holding that the third respondent has taken possession of the lands except to an extent of 3.24 acres. It is that order which is under challenge in these proceedings.
It is contended that the decision to withdraw from the acquisition proceedings was an informed decision taken on the basis of a resolution passed by the [ENTITY], dated 31.12.1999. It was evident that it was so recommended as no physical possession had been taken of the land in question. The State government, in turn, had positively asserted that this was so in its pleadings before this court as well as the apex court in earlier proceedings. Further, there was no notification issued under [SECTION] of the [ACT] nor was there any material to indicate that there were proceedings initiated to take over possession.
It is contended that the first respondent had also arrived at a conclusion that in view of material available to indicate that possession of the land had been handed over by the Tahsildar to the Chief Officer, [ENTITY] - it ought to be presumed that possession had been taken earlier by the Tahsildar from the land owners. It is contended that this is only a surmise and not a finding given on the basis of any material on record.
3. The respondent - [ENTITY] has filed statement of objections to contend that the Municipality had resolved in the year 19[SECTION], to send a proposal to the State Government to acquire about 135 acres of land of Dakshina nala village for the formation of a residential township especially, to house the weaker section of people. It is pursuant to the same that a preliminary notification was issued in the year 19[SECTION] proposing to acquire an extent of 87 acres and 23 guntas of land in Survey no.181 of Dakshinanala village and the same was followed by a final declaration under the provisions of the [ACT] vide notification dated 18.9.1997. It is claimed that after dismissal of writ proceedings challenging the said acquisition, culminating with the judgment in [CASE NUMBER] dated 1.8.2001, the proceedings attained finality. That an award was passed on 3.11.1997 after due notice to the land owners. It is further claimed that the Land Acquisition Officer (LAO) and the Assistant commissioner had addressed a letter dated 23.1.1998 to the Tahshildar, Holenarasipura to hand over possession of the acquired lands to the Chief Officer, Town Municipal Council. Accordingly, the possession is claimed to have been handed over on 24.1.1998. It is claimed that thereafter the mutation register entries were effected in favour of the Municipality. Similarly other items of land were handed over to the Municipality on 6.1.1999 and 1.4.2000.
It is contended that it was subsequent to such physical possession of the land having been handed over, that the State government had issued the notification under [SECTION] of the [ACT], dated 22.7.2000. It is claimed that the very notification indicates that possession of the lands had been taken by the State government, and hence it was not open to the State government to withdraw from the acquisition proceedings.
It is also pointed out that in the writ proceedings initiated by the beneficiaries of the acquisition challenging the withdrawal from the acquisition proceedings, in WP 31[SECTION]6/2000, the Government of Karnataka had approached the court seeking permission to proceed with acquisition of certain items of lands, which were the subject matter of the petition, for the purposes of road alignment as there was an accident prone spot, which required the road to be re-aligned. Permission is said to have been granted provided the same was acquired in accordance with law. And that in the fresh acquisition proceedings initiated in respect of an extent of 7 acres and 22 guntas of land, the notified Khatedar in the notification issued as on 28.8.2006 was the Municipality as it was the owner in possession of the lands as on that day. The said acquisition proceedings though were challenged by the erstwhile land owners, the same was dismissed and culminated in a writ appeal in [CASE NUMBER] which was dismissed as on 5.6.2007, as the owners had sought to be paid compensation.
It is claimed that it was again in the year 2007, when on a closer examination, it was found that the notification under [SECTION] could not have been issued, steps were taken to appraise the State government of the lapse committed and it is on that realization that the notification dated 22.7.2000 was withdrawn by the impugned notification.
It is therefore contended that the subsequent challenge by a few land owners, to the impugned notification and the matter having been referred to the first respondent to address the question of fact as to whether possession of the land had been taken by the State prior to the issuance of the notification under [SECTION] of the [ACT], has been answered by a reasoned Order and it is hence contended that the petition be dismissed.
4. The State government has not filed any Statement of objections in any of these petitions- at the hearing apart from producing the records pertaining to the case, the Government Advocate would seek to place reliance on the very correspondence, on the basis of which, the first respondent has passed the impugned order, to justify the same.
It is plain from the categorical directions issued in the judgment dated 25.11.2010 by the Division Bench, referred to herein above- the focus of enquiry by the first respondent was limited to the factum of whether the possession of the land had been taken by the State government prior to the notification issued under [SECTION] of the [ACT].
On a plain perusal of the impugned order, it is evident that the same is found wanting in several respects. From the directions issued by the Division Bench of this court, it is clear that the first respondent was enjoined to consider as to which version between two sets of pleadings filed by the [ENTITY] was false and who was the official responsible to make such a false affidavit and to lodge a compliant with the jurisdictional police against such erring official and to file a compliance report to the Division Bench. Unfortunately, the first respondent did not consider that aspect at all in his order.
Admittedly, there is no Notification issued by the LAO in terms of [SECTION] of the [ACT] after the alleged taking over of the possession of the acquired lands. There is also no notice issued to the land owners, including the petitioners, as regards the taking of possession of their lands. Further, it is claimed that most of the lands which were sought to be acquired are agricultural lands having assured irrigation facility from Dakshinanala canal and were under active cultivation. Under those circumstances, there ought to be a notice on the land owners about the taking of possession and also a mahazer be drawn by the official empowered to take possession of the acquired land. Such documents, admittedly, have not been produced before the first respondent.
The first respondent has placed reliance on a letter dated 4.1.1999 addressed to the Tahshildar, Holenarasipura by the Assistant Commissioner and LAO, Hassan Sub-Division, Hassan. A reading of this document would show that the LAO had directed the Tahshildar to hand over possession of the acquired land to [ENTITY] and to make necessary entries in the mutation register extract and also in the RTCs and submit the same to him. It is also evident that the Assistant Commissioner, had also enclosed a copy of the Notification in terms of [SECTION] of [ACT], to enable the Tahsildar to comply with his direction and the Assistant Commissioner and the LAO informed the Tahshildar that the possession of the entire acquired lands had to be taken except the lands in survey No.212/2, 272/1, 272/2, 272/3, 275/B and 275/2. The said letter, on the face of it, cannot be considered as a document under which the possession of the acquired land, including the land of the petitioners was taken by the LAO. The letter dated 4.1.1999 addressed to the Tahshildar by the Assistant Commissioner also mentions that the Tahsildar endorses that the possession of the acquired land was handed over to the Town Municipality, Holenarasipura through its Chief Officer on 6.1.1999. This document cannot be accepted as proof to demonstrate that the possession of the acquired land was taken from the respective land owners. The acknowledgement dated 24.1.1998 issued by the Town Municipality, Holenarasipura, to the effect that it has taken delivery of possession of the acquired land from the Tahasildar cannot be said to be evidence of taking over possession of the acquired land.
The first respondent was clearly in error in holding that the acknowledgement dated 24.1.1998 and the letter dated 4.1.1999 addressed to the Tahshildar by the LAO, could be the basis to hold that as on 20.7.2000, the possession of the acquired land was taken by the LAO and thereafter it was handed over to the Town Municipality, Holenarasipura.
The procedure contemplated under the [ACT] for taking possession of the acquired land is prescribed under [SECTION]. The Section empowers the LAO to take possession of the acquired land after passing an award in terms of [SECTION] and upon taking possession of the acquired land, the acquired land vests absolutely in the State free from all encumbrances. The LAO can also delegate his power to his inferior, in the matter of taking over possession of the acquired land. In the instant case, there are no documents available to show that the LAO or any other officer has taken possession of the acquired land. There are no documents made available on record to show that the Assistant Commissioner has delegated power under [SECTION] of the [ACT] to the Tahshildar and the Tahshildar in turn, had taken possession of the acquired land. In the absence of those material documents, it is untenable on the part of the first respondent to hold that the possession of the acquired land was taken merely placing reliance on the acknowledgement dated 24.1.1998 and the letter of LAO to the Tahsildar dated 4.1.1999.
The first respondent has not taken into consideration the counter filed by the Town Municipality and the resolution passed by it. The Town Municipality, in its resolution, has categorically stated that the award amount was not disbursed to the land owners and possession of the acquired land was not taken and in fact, it has confirmed that the possession of the acquired land was not taken.
Apart from this, the Town Municipality, Holenarasipura has made a positive statement before this court that it has not taken possession of the acquired land. The State Government has also made a similar statement before this Court and before the Supreme Court as well. The petitioners have produced these documents before the first respondent. There is absolutely no consideration of those materials by the first respondent. The first respondent has failed to appreciate that the second respondent has not issued a notice as required under [SECTION] of the [ACT] to the petitioners and other similarly placed persons. The petitioners and others have approached the second respondent under the provisions of the [ACT], seeking records about the issuance of the notice in terms of [SECTION] of the [ACT]. In response to which, the second respondent has issued an endorsement dated 18.1.2011 informing that there are records to show that such a notice in terms of [SECTION] of the [ACT] has not been issued to the petitioners and others.
The first respondent has relied on the entries made in the revenue records in favour of the third respondent. It is needless to state that mere change of entries in the revenue records by itself is not a ground to conclude that the possession of the acquired land has been taken by the acquiring authority in terms of [SECTION] of the [ACT]. As stated earlier, the mode of taking possession of the acquired land is only upon issuance of notice on the land owners and thereafter to take possession by drawing a mahazar in the presence of witnesses and under their signature. Such a document is not produced before the first respondent. There is no notice in terms of [SECTION] of the [ACT] issued by the LAO on the owners of the land. There is an endorsement issued by the LAO to the effect that there is no copy of a mahazar available in his record to show that a mahazar was drawn at the time of taking possession of acquired land and he has also issued an endorsement to the effect that there is no notification issued in terms of [SECTION] of the [ACT]. Therefore, regard being had to the law declared by the apex court in regard to the mode of taking possession particularly, with regard to the agricultural land, a mere entry in the revenue records is not sufficient to hold that possession of the acquired land has been taken. Therefore, the order passed by the first respondent placing reliance on the entries in the revenue records to hold that the possession of the acquired land has been taken, cannot be sustained. The settled legal position as regards the question as to what act would constitute taking of possession of the acquired land has been stated by the apex court in the case of [PRECEDENT]. On a review of the case law, the apex court has, while placing reliance on the following decisions, has expressed thus :
"30. What should be the mode of taking possession of the land acquired under the Act? This question was considered in [PRECEDENT]. [ENTITY], J. referred to the provisions contained in [SECTION], [SECTION], [SECTION] and [SECTION] of the [ACT], decisions of different High Courts and opined that even the delivery of so called "symbolical"
possession is delivery of "actual" possession of the right, title and interest of the judgment-debtor. [ENTITY],J. further observed that if the property is land over which there is no building or structure, then delivery of possession over the judgment-debtor's property becomes complete and effective against him the moment the delivery is effected by going upon the land. The Learned Judge went on to say: (SCC pp.710-11, para 25) "25. When a public notice is published at a convenient place or near the land to be taken stating that the Government intends to take possession of the land, then ordinarily and generally there should be no question of resisting or impeding the taking of possession. Delivery or giving of possession by the owner or the occupant of the land is not required. The Collector can enforce the surrender of the land to himself under [SECTION] of the Act if impeded in taking possession. On publication of the notice under [SECTION] claims to compensation for all interests in the land has to be made; be it the interest of the owner or of a person entitled to the occupation of the land. On the taking of possession of the land under [SECTION] or [SECTION] it vests absolutely in the Government free from all encumbrances. It is, therefore, clear that taking of possession within the meaning of [SECTION] or [SECTION] means taking of possession on the spot. It is neither a possession on paper nor a 'symbolical' possession as generally understood in civil law. But the question is what is the mode of taking possession? The Act is silent on the point. Unless possession is taken by the written agreement of the party concerned the mode of taking 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. The presence of the owner or the occupant of the land to effectuate the taking of possession is not necessary. No further notice beyond that under [SECTION] of the Act is required. When possession has been taken, the owner or the occupant of the land is dispossessed. Once possession has been taken the land vests in the Government".
31. [ENTITY] J., (as he then was), speaking for himself and [ENTITY], J. disagreed with [ENTITY], J. and observed: (Balwant Narayan Case (1976)1 SCC PP 711- 712, para 28 "28. We think it is enough to state that when the Government proceeds to take possession of the land acquired by it under the [ACT], 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 [ACT]. 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 of any fraudulent or collusive transaction of taking of mere paper possession, without the occupant or the owner ever coming to know of it."
xxx "37. xxxx
(i) xxxxxxxxxxx
(ii) xxxxxxxxxx
(iii) If crop is standing on the acquired land or building/structure exists, mere going on the spot by the concerned authority will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the authority concerned will have to give notice to the occupier of the building/structure or the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchnama. Of course, refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken.
iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures on such document."
Then again in [PRECEDENT], the above views are reiterated.
5. In the light of the above and on an examination of the record, it is evident that respondent no.1 has not arrived at any finding as to the date and manner in which the State had taken possession of the lands in question. Indeed, there is no material available in the record to indicate that there was any such event. Hence, the Order of the first respondent cannot be sustained. It would follow that the notification under [SECTION] of the [ACT] issued by the State government as on 22.7.2000, could not have been cancelled without there being any basis to conclude that the same had been issued under a mistaken notion that possession of the land had not been taken by then. That view could be displaced only in the presence of unimpeachable material evidence , which had passed muster in the first instance- which again is highly improbable, to warrant the cancellation of the notification seven years thereafter.
Consequently the writ petitions are allowed, the impugned order is quashed and the notification under [SECTION] of the [ACT], dated 22.7.2000, stands revived.
JUDGE nv*