CWP No.18651 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.18651 of 2010 Date of decision: 09.08.2011 1. Pritam Kaur ....Petitioner Versus The Commissioner, Rohtak Division, Rohtak and others ....Respondents CWP No.18652 of 2010 2. Smt. Vijay Rani ....Petitioner Versus The Commissioner, Rohtak Division, Rohtak and others ....Respondents CWP No.18653 of 2010 3. Gurcharan Singh ....Petitioner Versus The Commissioner, Rohtak Division, Rohtak and others ....Respondents CWP No.18654 of 2010 4. Pritam Singh ....Petitioner Versus The Commissioner, Rohtak Division, Rohtak and others ....Respondents CWP No.18655 of 2010 5. Smt. Raj Rani ....Petitioner Versus The Commissioner, Rohtak Division, Rohtak and others ....Respondents CWP No.18651 of 2010 2 CWP No.18656 of 2010 6. Gurdial Singh ....Petitioner Versus The Commissioner, Rohtak Division, Rohtak and others ....Respondents CWP No.18657 of 2010 7. Smt. Swarana Rani ....Petitioner Versus The Commissioner, Rohtak Division, Rohtak and others ....Respondents CWP No.18658 of 2010 8. Sukhwinder Singh ....Petitioner Versus The Commissioner, Rohtak Division, Rohtak and others ....Respondents CWP No.18760 of 2010 9. Pardeep Kumar and another ....Petitioners Versus The Commissioner, Rohtak Division, Rohtak and others ....Respondents CWP No.17 of 2011 10. State of Haryana ....Petitioner Versus Swarana Rani and others ....Respondents CWP No.18 of 2011 11. State of Haryana ....Petitioner Versus CWP No.18651 of 2010 3 Gurcharan Singh and others ....Respondents CWP No.58 of 2011 12. State of Haryana ....Petitioner Versus Raj Rani and others ....Respondents CWP No.60 of 2011 13. State of Haryana ....Petitioner Versus Gurdayal Singh and others ....Respondents CWP No.72 of 2011 14. State of Haryana ....Petitioner Versus Pritam Singh and others ....Respondents CWP No.74 of 2011 15. State of Haryana ....Petitioner Versus Pritam Kaur and others ....Respondents CWP No.83 of 2011 16. State of Haryana ....Petitioner Versus Sukhvinder and others ....Respondents CWP No.97 of 2011 17. State of Haryana ....Petitioner Versus CWP No.18651 of 2010 4 Vijay Rani and others ....Respondents CWP No.102 of 2011 18. State of Haryana ....Petitioner Versus Pardeep Kumar and others ....Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH Present: - Mr. Ashish Aggarwal, Advocate, for the petitioners. Mr. Deepak Girhotra, AAG, Haryana. 1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? ***** ALOK SINGH, J. Nine petitions from Sr. No.1 to 9 are filed by the occupants challenging the orders passed by SDO (Civil)-cum-Collector dated 20.3.2009 and passed by learned Divisional Commissioner, Rohtak, dated 6.5.2010 directing the eviction of the petitioners under the Haryana Public Premises and Land (Eviction and Rent Recovery) Act. Other nine petitions from Sr. No.10 to 18 are filed by the State against the same orders for not granting damages/penalty for unauthorized occupation. Since in all the petitions common/identical questions of facts and law are involved, therefore, all the petitions are being decided together. For the sake of brevity, facts of Writ Petition No.18651 of 2010 are being taken as a leading case to understand the controversy. CWP No.18651 of 2010 5 Petitioner has invoked the extraordinary/supervisory jurisdiction of this Court under Article 226/227 of the Constitution of India assailing order dated 20.3.2009 passed by learned Collector as well as order dated 6.5.2010 passed by Commissioner, Rohtak Division, Rohtak, Haryana, thereby directing the ejectment of the petitioners herein from the land in dispute of khasra No.1636/1 exercising the powers under Haryana Public Premises and Land (Eviction & Rent Recovery) Act, 1972 (in short 'P.P. Act'). Brief facts of the present case inter alia are that khasra No.1636 in Assandh, District Karnal, was having total area of 13 kanal 13 marlas; Government of Haryana had issued a notification dated 21.10.1975 under Section 4 of the Land Acquisition Act, 1884 for acquisition of land measuring 27 kanals 17 marlas, out of which land measuring 6 kanals was of khasra No.1636 for the purpose of construction of bus stand at Assandh; notification under Section 6 of the Land Acquisition Act was thereafter issued on 11.5.1978; a petition under Sections 3, 4, 5, 6 and 7 of the P.P. Act was preferred against the petitioners herein in the year 1992 stating the petitioners here in are in unauthorized occupation of the premises in khasra No.1636/1 and have raised construction on the land as shown in site plan without any allotment/lease or grant for the last about 10 years; the occupation of the petitioners herein over the property in question has not been authorized under any allotment/lease or grant and as such they are unauthorized occupants. Petitioners preferred their written statements before the Collector specifically stating therein that the total area of khasra CWP No.18651 of 2010 6 No.1636 was 13 kanals 13 marlas and out of 13 kanals 13 marlas, State of Haryana has acquired only 6 kanals of khasra No.1636; State has miserably failed to state in the notification which part of khasra No.1636 is being acquired; State has not taken possession of any part of khasra No.1636 and State has already constructed bus stand at Assandh and has raised the boundary wall of the bus stand and land in question is out of boundary wall of the bus stand; petitioners are in possession as bona fide purchasers of the land in question and have constructed their houses and are residing therein as owners thereof. Learned Collector vide order dated 11.12.1998 has directed the eviction of the petitioners from the land in question by placing reliance upon the alleged demarcation report dated 2.7.1992 carried out by the Department of Haryana Roadways, State of Haryana. Appeals preferred by the petitioners before the Commissioner also came to be dismissed on 27.11.2000. Thereafter petitioners preferred writ petitions before this Court, which were allowed by this Court vide order dated 6.8.2008 and all the cases were remanded to the Collector to decide the cases afresh after demarcation. Once again, learned SDO(Civil)-cum- Collector vide impugned order dated 20.3.2009 has passed eviction orders and appeals therefrom were dismissed by learned Commissioner vide order dated 6.5.2010. Orders passed by learned Collector and learned Commissioner are under challenge in the present writ petitions. I have heard learned counsel for the parties and have carefully perused the record. There is no dispute about the issuance of the notifications under Sections 4 and 6 of the Land Acquisition Act on 21.10.1975 and CWP No.18651 of 2010 7 11.5.1978 acquiring land measuring 27 kanals 17 marlas out of which land measuring 6 kanals was of khasra No.1636. There is also no dispute that total area of khasra No.1636 was 13 kanals 13 marlas out of which only 6 kanals was acquired by the State of Haryana. Petitioner's case is that petitioner has purchased the land in dispute vide sale deed dated 2.9.1982 in the shape of plot from one Deepak Kumar and Deepak Kumar had purchased the land from the recorded owner of khasra No.1636. Having purchased the land from Deepak Kumar, petitioner has constructed his house and residing therein right from 1982 without any interruption, however all of a sudden a petition under PP Act was filed against the petitioner in 1992 after ten years from the date of purchasing the property by the petitioner. In paragraph No.8 of the petition, petitioner has asserted as under: - “8. That it is significant to mention that the Bus Stand for which the above land was acquired by respondent No.3 already stands completed and is functioning since the last about 30 years. On the land in question comprised in Khasra No.1636, since the year 1975, no construction has been raised by respondent No.3 and even the boundary wall of the Bus Stand has been constructed remaining and comprised in Khasra No.1636 is out side the boundary wall of the Bus Stand. It is pertinent to mention that the possession of land of Khasra No.1636 was never taken by respondent No.2 and the original owners remained in possession and thereafter the petitioner came in possession of the land in question on 2.9.1982.” In the reply to the writ petition, respondent No.3 in paragrpahs No.8 and 10 has asserted as under - “8. That in reply to Para No.8 of the civil writ petition, it is submitted that bus stand is functioning and boundary wall has been raised, however, the CWP No.18651 of 2010 8 boundary wall could not be raised over the land under illegal possession of the petitioner and some other persons who can be evicted only through due process of law. Moreover, it does not lie in the mouth of the petitioner or any other person that any piece of public land can be encroached upon only because it is lying vacant. No other issue regarding possession etc. of the land by the respondent can be raised at this stage after direction of this Hon'ble Court to demarcate the land concerned in accordance with mutation No.5891 dated 24-08- 1983. In reply to rest of this para, contends of preliminary submissions are reiterated. 10. That in reply to Para No.10 of the writ petition, it is submitted that the petition for eviction of the petitioner from the land concerned was filed in the year 1992 after receiving demarcation report from the revenue authorities.” Petitioner has taken specific plea in paragraph No.8 of the writ petition that respondents have never taken any possession of khasra No.1636; original owners of khasra No.1636 remained in possession and thereafter petitioner came in possession of the land in question on 2.9.1982; roadways has raised the boundary wall of the bus stand and land in dispute is beyond the boundary wall. Respondent No.3 admits in paragraph No.8 of the reply that boundary wall of the bus stand was raised and is available on the spot, however, does not specify as to on which date the possession of khasra No.1636 was taken by the State pursuant to the acquisition and it was not asserted as to when petitioner has encroached upon the land in dispute, rather respondent No.3 has taken specific case in paragraph No.10 of the reply that petition for eviction of the petitioner from the land concerned was filed in the year 1992 after receiving demarcation report from the revenue authorities. Hon'ble Apex Court in the matter of Prahlad Singh and others Vs. Union of India and others, (2011) 5 Supreme Court Cases CWP No.18651 of 2010 9 386 in paragraphs No.12 to 20 has observed as under: - “12. The learned counsel appearing for the State could not draw our attention to any material to show that actual and physical possession of the acquired land had been taken by the State authorities. He, however, argued that by virtue of Section 16 of the Act the acquired land will be deemed to have vested in the State Government because the Land Acquisition Collector has passed the award on 25-6- 2004. 13. We have given out serious thought to the entire matter and carefully examined the records. Section 16 lays down that once the Collector has made an award under Section 11, he can take possession of the acquired land. Simultaneously, the section declares that upon taking possession by the Collector, the acquired land shall vest absolutely in the Government free from all encumbrances. In terms of the plain language of this section, vesting of the acquired land in the Government takes place as soon as possession is taken by the Collector after passing an award under Section 11. To put it differently, the vesting of land under Section 16 of the Act presupposes actual taking of possession and till that is done, legal presumption of vesting enshrined in Section 16 cannot be raised in favour of the acquiring authority. Since the Act does not prescribe the mode and manner of taking possession of the acquired land by the Collector, it will be useful to notice some of the judgments in which this issue has been considered. 14. In Balwant Narayan Bhagde v. M.D. Bhagwat Bhagwati, J. (as he then was), speaking for himself and Gupta, J. disagreed with Untwalia, J. who delivered a separate judgment and observed: “28. ...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 CWP No.18651 of 2010 10 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 'pot 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 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.” 15. In Balmokand Khatra Educational and Industrial Trust v. State of Punjab the Court negatived the argument that even after finalisation of the acquisition proceedings possession of the land continued with the appellant and 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 panches and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the CWP No.18651 of 2010 11 retention of possession would tantamount only to legal or unlawful possession.” 16. In P.K. Kalburqi v. State of Karnatka the Court referred to the observations made by Bhagwati, J. in Bhagwant Naraya Bhagde v. M.D. Bhagwat that no hard-and-fast rule can be laid down as to what act would be sufficient to constitute taking of possession of the acquired land and observed that when there is no crop or structure on the land only symbolic possession could be taken. 17. In NTPC Ltd. v. Mahesh Dutta the Court noted that the appellant NTPC paid 80% of the total compensation in terms of Section 17(3-A) and observed that it is difficult to comprehend that after depositing that much of amount it had obtained possession only on a small fraction of land. 18. In Sita Ram Bhandur Society v. Govt. of NCT of Dehlhi and Omparkash Verms v. State of A.P. it was held that when possession is to be taken of a large tract of land then it is permissible to take possession by a properly executed panchnama. Similar view was expressed in the recent judgment in Brij Pal Bhargava v. State of U.P. 19. The same issue was recently considered in Banda Development Authority v. Moti Lal Agarwal decided on 26-04-2011. After making reference to the judgments in Balwant Narayan Bhagde v. M.D. Bhagwat, Balmokand Khatri Educational and Industrial Trust v. State of Punjab, P.K. Kalburqi v. State of Karnatka, NTPC Ltd v. Mahesh Dutta, Sita Ram Bhandar Society v. Govt. of NCT of Delhi, Omparkash Verma v. State of A.P. and Nahar Singh v. State of U.P. This Court laid down the following principles: “(i) No hard-and-fast rule can be laid down as to what act would constitute taking of possession of the acquired land. (ii) If the acquired land is vacant, the act of the State authority concerned to go to the spot and prepare a panchnama will ordinarily be treated as sufficient to constitute taking of possession. (iii) If crop is standing on the acquired land or building/structure exists, mere going on the spot by the authority concerned 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 t panchnama. Of course, refusal CWP No.18651 of 2010 12 of the owner of the land or building/structure may not lead to an interference 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. (v) If beneficiary of the acquisition is a agency/instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3-A) and substantial portion of the acquired land has been utilised in furtherance of the particular public purpose, then the court may reasonably presume that possession of the acquired land has been taken.” 20. If the present case is examined in the light of the facts which have been brought on record and the principles laid down in the judgment in Banda Development Authority case it is not possible to sustain the finding and conclusion recorded by the High Court that the acquired land had vested in the State Government because the actual and physical possession of the acquired land always remained with the appellants and no evidence has been produced by the respondents to show that possession was taken by preparing a panchnama in the presence of independent witnesses and their signatures were obtained on the panchnama.” From the various dictums of the Hon'ble Supreme Court, as discussed and approved in Prahlad Singh (supra), the issue is no more res integra. Now settled position of law is that vesting of land under Section 16 of the Land Acquisition Act presupposes actual taking of possession and till that is done, legal presumption of vesting enshrined in Section 16 cannot be raised in favour of the acquiring authority. Hon'ble Apex Court has laid down following principles to find out as to whether possession was taken by the acquiring authority over the land acquired: - CWP No.18651 of 2010 13 “(i) No hard-and-fast rule can be laid down as to what act would constitute taking of possession of the acquired land. (ii) If the acquired land is vacant, the act of the State authority concerned to go to the spot and prepare a panchnama will ordinarily be treated as sufficient to constitute taking of possession. (iii) If crop is standing on the acquired land or building/structure exists, mere going on the spot by the authority concerned 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 t panchnama. Of course, refusal of the owner of the land or building/structure may not lead to an interference 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. (v) If beneficiary of the acquisition is a agency/instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3-A) and substantial portion of the acquired land has been utilised in furtherance of the particular public purpose, then the court may reasonably presume that possession of the acquired land has been taken.” In the present case, undisputedly, petitioner is in possession right from 1982. Undisputedly, boundary wall of the bus stand was constructed prior to 1982 leaving the property in dispute outside the boundary wall of the bus stand. Undisputedly, at the time of issuance of notification under Section 4 of the Land Acquisition Act, khasra No.1636 was not having any batta. Respondent/State has not clarified that 6 marlas land acquired out of total area of khasra No.1636 is on CWP No.18651 of 2010 14 which side of khasra No.1636. No map of the proposed acquisition of the land or proposed bus stand is brought before the Court to prove the location of 6 malra area acquired of khasra No.1636. No document i.e. panchnama is placed on record to prove that State has taken possession of the acquired land of khasra No.1636. If possession was taken by State over 6 marlas of khasra No.1636 as to why this property was left outside the boundary wall of the bus stand, is also not made clear. In the peculiar facts and circumstances of the case, in the opinion of this Court, State has miserably failed to prove that land in dispute is part of the land, which was acquired by the State and possession thereof was taken by the State. Once possession of State is not proved, taking forceful possession from the State by the petitioner does not arise. Moreover, averment, made in para No.10 of the reply filed by respondent No.3 that State came to know about the encroachment only in 1992 after demarcation made by the State, also goes to prove that prior to 1992 State was not aware that State land had been encroached upon. Averment of para 10 of the reply makes case of the respondents doubtful that State ever took possession of the land of khasra No.1636. Had State been in possession, State would have initiated legal action soon after petitioner came into possession in 1982 and has constructed residential house over the land in dispute. Moreover in the appeals filed by the State i.e. Executive Appeals No.169, 170, 171, 172, 173, 174, 175, 176 and 177 of 2009 against the order passed by SDO(Civil)-cum-Collector, Assandh, not granting any damages/penalty against the petitioners herein for the unauthorized occupation, learned Divisional Commissioner, Rohtak, has observed as under: - CWP No.18651 of 2010 15 “As far as the prayer of the appellants (in appeals no.152 to 160) that if there is any decrease of land from Khasra no.1636 and in case some area of Bus Stand is found underneath the houses of appellants, the same may be deducted from the other land of the