IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. : 3571 of 2009 a/w CWP Nos. 183, 184, 185, 186, 187, 188, 189, 434, 435, 436, 437, 453, 454 and 455 of 2010 Reserved on : 09.04.2013 Decided on : 29.04.2013 _____________________________________________________ 1. CWP No. 3571 of 2009 Jit Ram and another …Petitioners. -Versus- State of Himachal Pradesh and others. …Respondents. 2. CWP No. 183 of 2010 Om Parkash ….Petitioner -Versus- State of Himachal Pradesh and others …Respondents. 3. CWP No. 184 of 2010 Puran Chand …Petitioner. -Versus- State of Himachal Pradesh and others …Respondents. 4. CWP No. 185 of 2010 Dev Raj and another …Petitioners. -Versus- State of Himachal Pradesh and others …Respondents. 5. CWP No. 186 of 2010 Rakesh Kumar …Petitioner. -Versus- State of Himachal Pradesh and others …Respondents. 6. CWP No. 187 of 2010 Bale Ram …Petitioner. -Versus- State of Himachal Pradesh and others …Respondents. 7. CWP No. 188 of 2010 Yagya Dev …Petitioner. -Versus- - 2 - State of Himachal Pradesh and others …Respondents. 8. CWP No. 189 of 2010 Shri Ajbir Singh …Petitioner. -Versus- State of Himachal Pradesh and others …Respondents. 9. CWP No. 434 of 2010 Bhag Chand …Petitioner. -Versus- State of Himachal Pradesh and others …Respondents. 10. CWP No. 435 of 2010 Som Dutt …Petitioner. -Versus- State of Himachal Pradesh and others …Respondents. 11. CWP No. 436 of 2010 Falta Ram …Petitioner. -Versus- State of Himachal Pradesh and others …Respondents. 12. CWP No. 437 of 2010 Garish Kumar and another …Petitioners. -Versus- State of Himachal Pradesh and others …Respondents. 13. CWP No. 453 of 2010 Bir Singh and another …Petitioners. -Versus- State of Himachal Pradesh and others …Respondents. 14. CWP No. 454 of 2010 Sudhir Kumar …Petitioner. -Versus- State of Himachal Pradesh and others …Respondents. 15. CWP No. 455 of 2010 Kamala Devi and others …Petitioners. -Versus- State of Himachal Pradesh and others …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes. - 3 - __________________________________________________________ For the petitioners: Mr. J.S. Bhogal, Senior Advocate, with Mr. Bimal Gupta, Advocate. For the respondents: Mr. Pramod Thakur and Ms. Meenakshi Sharma, Additional Advocate Generals with Mr. Neeraj K. Sharma, Deputy Advocate General, for respondents No. 1, 2 and 5. Mr. K.D. Shreedhar, Senior Advocate with Mr. Yudhvir Singh Thakur, Advocate, for respondents No. 3 and 4. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: Since common questions of law and facts are involved in all the writ petitions, these were taken up together for hearing and are being disposed of by this common judgment. However, in order to maintain clarity, the facts of C.W.P No. 3571 of 2009-G have been taken into consideration. C.W.P. No. 3571 of 2009-G 2. ‘Key facts’ necessary for the adjudication of this writ petition are that notification, under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as ‘the Act’ for the sake of brevity) was issued on 1st October, 2003 for acquiring the land comprised in Khasra Nos. 158,159, 160, 162 and 163, situate in Minyasi Kothi Banyog and Maujas Kanon, Kothi Bunga. Petitioners have purchased land from one Badhu Ram vide sale deeds, dated 30.05.2005 and 10.06.2005. Mutations were also attested in favour of the petitioners. A notification under Section 17(4) of the Act was issued by the State Government on 16.11.2005, for acquiring Khasra No. 161. Petitioners made representation seeking compensation for the damage caused to their houses by respondents No. 3 and 4 to respondent No. 2 on 03.08.2007. Similar representation was - 4 - made to Land Acquisition Officer, Parbati Hydro Electric Project, Sainj, District Kullu, H.P. on 08.01.2009. Respondents No. 3 and 4 have sent a communication to the Executive Engineer, Division No. 1, HP PWD, Kullu on 23.01.2009, stating therein that 15 numbers of houses situate on Khasra No. 161 were likely to be damaged. A further request was made to the Assistant Engineer concerned to get the estimates prepared of these houses without material (as the material was to be taken back by the owners of houses) at the earliest. This has been placed on record by the petitioners vide Annexure P-18. The Assistant Engineer, HP PWD, prepared the drawings of the houses which were falling in Channi Nallah Dumping site Phati Kanon Kothi Bunga, Sub Tehsil Sainj and submitted the same to the Deputy Manager (Civil) on 04.04.2009. These were duly verified by the functionaries of respondents No. 3 and 4. Petitioners made a representation to the Deputy Commissioner on 01.09.2009. The Deputy Commissioner issued the necessary instructions to the S.D.M., as per the endorsement made on the representation itself. The Land Acquisition Officer, Parvati Hydro Electric Project Phase-III, Larji, District Kullu, H.P. has sent a communication to the General Manager, informing him that the spot inspection of Khasra No. 161, Phatti Kanon, Kothi Bunga, Sub Tehsil Sainj was conducted on 21.01.2009 and a detailed report was sent to his office for necessary action vide letter dated 22.01.2009. He has requested the authorities to settle the matter. Similarly, the Naib Tehsildar, Sainj also informed the General Manager of respondent No. 3-Company on 23.09.2009 for taking action by referring to the report of the Patwari. The Patwari has verified that 12 houses were damaged and walls of 3 - 5 - houses were damaged and the same were not fit for human habitation. The Deputy Manager (Civil) and Senior Manager (Civil) have taken the cognizance of the drawings submitted by the Assistant Engineer, HP PWD on 04.04.2009. It appears from the record that the same was marked to Assistant Engineer, HP PWD, Banjar. Petitioners have placed on record the notings, dated 30.06.2009 alongwith the record of the Assistant Engineer. 3. Mr. J.S. Bhogal, learned Senior Advocate has vehemently argued that since the possession of Khasra No. 161 has been taken over, the State Government is bound to acquire the land of the petitioners and to pay them adequate compensation. He further contended that once the notification has been issued under Section 17(4) of the Act, the same could not be withdrawn by the State Government after taking possession under Section 48 of the Act. 4. Mr. Neeraj K. Sharma, learned Deputy Advocate General, has vehemently argued that the notification issued under Section 17(4) of the Act has elapsed after a period of two years. 5. Mr. K.D. Shreedhar, learned Senior Advocate, for respondents No. 3 and 4, has strenuously argued that the possession of Khasra No. 161 was never taken over and it is always open to the State Government to withdraw the notification issued under Section 17(4) of the Act on 16.11.2005. 6. I have heard the learned counsel for the parties and gone through the pleadings carefully. 7. It is evident from the pleadings that the decision was taken by respondents No. 3 and 4 in principle to acquire - 6 - Khasra No. 161. However, thereafter as per Annexure R-5/1, the respondents No. 3 and 4 have made up the mind not to acquire the land. The Deputy Manager (Civil) has marked the file to Senior Manager (PH). It was recommended for de-notification of Khasra No. 161 on 15.10.2005. The Chief Engineer has also recommended the same for approval to the General Manager on 15.10.2005. The General Manager has approved the same on 17.10.2005. The Chief Engineer (PH) has told the authorities to intimate the Land Acquisition Officer for taking action on 17.10.2005. The Land Acquisition Officer has mentioned in his note that the same shall be taken into consideration at the time of hearing objections under Section 5. However, the fact of the matter is that despite Annexure R-5/1, the notification under Section 17(4) of the Act was issued by the State Government on 16.11.2005 to acquire Khasra No. 161. 8. Mr. J.S. Bhogal, learned Senior Advocate, on the basis of the drawings approved by the Assistant Engineer, which were verified by respondents No. 3 and 4 and also on the basis of letter dated 30.06.2009 placed on record at page No. 202 of the paper-book, has submitted that the possession of Khasra No. 161 was taken over. He also argued that the land of the petitioners has been utilized by respondents No. 3 and 4 for dumping the muck. However, Mr. K.D. Shreedhar, learned Senior Advocate, has seriously refuted this submission. According to him, actual possession of Khasra No. 161 was never taken over. Mr. J.S. Bhogal, learned Senior Advocate, has also argued that once the possession of Khasra No 161 has been taken over by the State Government, the notification cannot be withdrawn under Section 48 of the Land Acquisition Act. - 7 - 9. Now, the Court will advert to the submissions made by the learned Advocates. As far as Section 16 of the Act is concerned, when the Collector makes an award under Section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government free from all encumbrances. As far as Section 17 of the Act is concerned, the appropriate Government may direct the Collector, though no award has been made, on the expiration of fifteen days from the publication of the notice mentioned in Section 9, Sub-section (1) and take possession of any land needed for a public purpose and thereafter, this land would vest absolutely in the Government free from all encumbrances. The petitioners have not placed any tangible material on record to establish that the State Government has ever directed the Collector to take over the possession after expiry of 15 days, as stipulated under Section 9, Sub-section (1) of the Act. Section 17(1) is also required to be read in conjunction with Sub-section (3A), whereby the Collector has also to tender payment of eighty per centum of the compensation for such land as estimated by him to the persons interested entitled thereto. There is no evidence on record that the Collector has ever taken over the possession or even any revenue officer has visited the spot to take over the possession. No statements have ever been recorded by the Collector or any revenue agency. The procedure, as per the Code of Civil Procedure was also required to be followed, which, admittedly in this case, has not been followed. However, it is also clear from the material placed on record, more particularly, the drawings submitted by the Assistant Engineer on 04.04.2009 and the documents placed on record at page No. 202 that damage has - 8 - definitely been caused to the land of the petitioners by throwing muck. The Patwari has visited the spot and has found that damage was caused extensively to 12 numbers of houses and walls of three houses were damaged, as per the report of the Patwari. The petitioners have not been paid even 80% of the compensation as per Section 17 (3A). 10. Mr. J.S. Bhogal, learned counsel for the petitioners has also argued that the land of the petitioners has been utilized and it would amount to taking physical possession. However, the fact of the matter is that only damage has been caused to the property of the petitioners. 11. In Mrityunjoy Bose Vs. State of Bihar and another, AIR 1967 Patna 286, the Division Bench has held that taking of possession referred to in Sections 16,17(1), 34 and 48(1) of the Land Acquisition Act, are of the same nature. Their Lordships have further held that unless the party to the suit can show that possession over that portion of the disputed land, which are notified as having been withdrawn from acquisition is of the nature required by either Section 16 or Section 17(1) of the Act, the legality of the order of withdrawal cannot be successfully challenged. Their Lordships have further held that the Government loses its rights to withdraw from acquisition only from the date when the Collector takes possession under Sections 16 or 17, so that title vests free from all encumbrances in the Government. Their Lordships have held as under: “44. So far as the application of S. 48(1) is concerned, it seems clear that the Government loses its right to withdraw from acquisition only from the date when the Collector takes possession under Section 16 or S. 17 of the Act so that title vests free from all encumbrances in the Government. There - 9 - seems to be no reason to suppose that the word ‘possession’ in sub-section (1) of Section 48 means possession of a kind different from that taken over under Section 16 or Section 17 of the Act. It is also from the date of taking over such possession that interest becomes payable under Section 34 of the Act. 45. As I have been unable to find that the Government took possession of the lands in question under any law much less under Section 16 or Section 17 of the Act, I am unable to hold that they acted illegally in withdrawing portions of the lands from acquisition. For the same reason, I cannot hold that the petitioners are entitled to interest from any particular date. 46. Point No. (3), Section 48 (1) does not say that the Government has to follow any particular procedure in withdrawing any land from acquisition. It is manifest that the Land Acquisition Officer knew of the Government’s intention to withdraw what they have actually withdrawn from acquisition under the notifications issued in August, 1966. The Land Acquisition Officer’s awards cannot be held to be vitiated simply because he gave them in respect of only such areas of land as remained under acquisition after the withdrawals which were subsequently notified by Government in the Official Gazette. Even supposing that the officer has committed some irregularity, it is not possible for this Court to issue a writ of mandamus commanding him to determine the compensation of lands which now stand legally withdrawn by Government from acquisition. Such a writ would be quite valueless. This point also, therefore, fails. 53. But as the validity of withdrawal from acquisition in respect of portions of lands is under challenge before us, we have to decide whether the taking of possession as alleged by the petitioners, even if believed, would be a bar to withdrawal from acquisition under S. 48(1) of the Land Acquisition Act. - 10 - As rightly pointed out by my learned Brother, the taking of possession referred to in sections 16, 17(1), 34 and 48(1) of the Act must be of the same nature. Hence, unless the petitioners can show that possession over that portion of the disputed lands which were notified as having been withdrawn from acquisition was of the nature required either by section 16 of Section 17(1) of the Land Acquisition Act, the legality of the order of withdrawal cannot be successfully challenged. I would agree with the contention of Mr. Lal Narain Sinha for the State of Bihar that the taking of possession either under Section 16 or under section 17(1) is fundamentally different from the possession, if any, which the Government might have taken prior to the commencement of the acquisition proceedings. Possession for the purpose of Ss. 17 and 17(1) must be possession as a full owner, in consequence of which lands vest absolutely in the Government free from all encumbrances. It cannot be of the same nature as any previous possession which the Government might have taken either as a lessee, or mortgagee, or licensee, or under some other colour of title, or even as a trespasser. Though the Act is silent as to the mode of taking possession either under S 16 or S 17(1) of the Act, there seems no doubt that either actual occupation by the Collector or his agents, or taking symbolic possession (where actual possession is already with the Collector), or doing something equivalent to effective possession is contemplated. Here admittedly no such formal taking of possession either under S. 16 or under S. 17(1) has been alleged to have been done. The petitioners’ case all along has been that by virtue of the appropriate notification any resistance by the petitioners, the Forest Department took over actual possession from 1954. That possession cannot, therefore, be held to be possession for the purpose of S. 48(1) of the Land Acquisition Act. Hence there is no illegality in the - 11 - withdrawal from acquisition in respect of a portion of the disputed lands.” 12. In L.T. Governor of Himachal Pradesh and another Vs. Sri Avinash Sharma 1970(2) Supreme Court Cases 149 their Lordships of the Hon’ble Supreme Court have held that when a notification under Section 17(1) is issued on the expiration of fifteen days from the publication of the notice mentioned in Section 9(1), the possession previously obtained will be deemed to be the possession of the Government under Section 17(1) of the Act and the land will vest in the Government free from all encumbrances. Their Lordships have held as under: “4. In the present case a notification under Section 17(1) and (4) was issued by the State Government and possession which had previously been taken must, from the date of expiry of fifteen days from the publication of the notice under Section 9(1), be deemed to be in the possession of the Government. We are unable to agree that where the Government has obtained possession illegally or under some unlawful transaction and a notification under Section 17(1) is issued the land does not vest in the Government free from all encumbrances. We are of the view that when a notification under Section 17(1) is issued the land does not vest in the Government free from all encumbrances. We are of the view that when a notification under Section 17(1) is issued, on expiration of fifteen days from the publication of the notice mentioned in Section 9(1), the possession previously obtained will be deemed to be the possession of the Government under Section 17(1) of the Act and the land will vest in the Government free from all encumbrances. 8. But these observations do not assist the case of the appellant. It is clearly implicit in the observations that after possession has been taken - 12 - pursuant to a notification under Section 17(1) the land is vested in the Government, and the notification cannot be cancelled under Section 21 of the General Clauses Act, nor can the notification be withdrawn in exercise of the powers under Section 48 of the Land Acquisition Act. Any other view would enable the State Government to circumvent the specific provision by relying upon a general power. When possession of the land is taken under Section 17(1), the land vests in the Government. There is no provision by which land statutorily vested in the Government reverts to the original owner by mere cancellation of the notification.” 13. In Rajkumar Rajindra Singh Vs. State of Himachal Pradesh and another, AIR 1982 Himachal Pradesh 92, the Division Bench of this Court has held that when the possession is taken by the Government, the provisions of Section 48 cannot be invoked. Their Lordships have held as under: “14. Another argument advanced by the learned counsel for the respondents was that the possession was not handed over to the P.W.D. authorities by the petitioner and the petitioner was incapable of handing over such possession. We cannot accept this contention of the learned counsel for the respondents because it is not at all necessary as to who delivers the possession to the respondents. The only criteria for the application of S. 48 of the Act is as to whether the possession has been taken over by the Government. In view of the fact that possession of the acquired property had been taken by the Government on 28.10.69 it was not within the competency of the Government to have invoked the provisions of S. 48 of the Act for the withdrawal of the acquisition proceedings. - 13 - 14. The Apex Court in M/S. Jethmull Bhoraj Vs. State of Bihar and others (1972) 1 Supreme Court Cases 714 have held that the Government becomes the owner of the lands notified for acquisition only when the Collector takes possession of those lands either under Section 16 or under Section 17(1). Their Lordships have further held that the possession of any land notified for acquisition is taken when the Collector has made an award under Section 11 and not before it. But an exception is provided under Section 17(1). In cases of urgency, if the Government so directs, the Collector may though no award has been made under Section 11, on the expiration of the 15 days from the publication of the notices mentioned in Section 9(1), take possession of any waste or arable land and the land shall thereupon vest absolutely with the Government free from all encumbrances. Their Lordships have further held that the Collector cannot take possession of the land in question unless the Government directs him to do so. Their Lordships have held as under: “10. The next point that arises for decision is whether delivery of the lands notified for acquisition was taken under Section 17 (1) as contended by the appellant. The Government becomes the owner of the lands notified for acquisition only when the Collector takes possession of those lands either under Section 16 or under Sec. 17 (1). Both those provisions provide that when the Collector takes possession under those provisions the lands notified for acquisition shall vest absolutely in the Government free from all encumbrances. Until and unless possession is taken under either of those provisions, the lands notified for acquisition do not vest in the Government. Section 48 (1) of the Act provides: - 14 - "Except in the case provided for in Section 36, the Government shall be at liberty to withdraw from the acquisition of any lands of which possession has not been taken." 11. Section 36 is not relevant for our present purpose. Possession referred to in Section 48 necessarily is the possession taken either under Section 16 or under Section 17 (1). Section 17 (1) says: "In cases of urgency, whenever the appropriate Government so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in Section 9 sub-section (1), take possession of any waste or arable land needed for public purposes or for a Company. Such land shall thereupon vest absolutely in the Government free from all encumbrances." Ordinarily possession of any land notified for acquisition is taken when the Collector has made an award under Section 11 and not before it. But an exception is provided under Section 17 (1). In cases of urgency, if the Government so directs, the Collector may, though no award has been made under Section 11, on the expiration of the 15 days from the publication of the notice mentioned in S. 9 (1) take possession of any waste or arable land and the land shall thereupon vest absolutely with the Government free from all encumbrances. From this provision, it is plain that the Collector cannot take possession of the land in question unless the Government directs him to do so. The Government directs him to do so only in cases of urgency. Even when the Government directs the Collector to take possession, he cannot do so until expiration of 15 days from the publication of a notice under Section 9 (1). There is no material on record to show that the Government had given to the Collector any direction under - 15 - Section 17 (1); nor is there any material to show that the lands in question had been taken possession of by the Collector under Section 17 (1). It is true that in the order-sheet maintained by the Land Acquisition Officer, a note was made on October 17, 1959:” "Shri B. P. Yadav Kgo, to deliver possession at the spot to the representative of the R.