IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.196 of 2007 RADHA PRASAD SINGH Versus THE STATE OF BIHAR & ORS ----------- 5. 7.5.2008 Heard learned counsel for the parties. The petitioner has come to this Court seeking a direction upon the respondent-authorities to release the land of the petitioner which was acquired for the purpose of extension of the National Highway no. 30 and now after the extension of the said National Highway no. 30, the land of the petitioner is needless and the same is vacant and useless for the purpose of extension of the said National Highway No. 30. The Government of Bihar on 12.1.1979 issued a letter for acquisition of land for the purpose of extension of National Highway No.30 in the Kaimur District at Village Barej near Mohania. The land of the petitioner bearing R.S. Khata No. 49, Plot No. 507 measuring area 1.17-1/2 acres was acquired by the State Government by letter dated 7.6.1983. The petitioner was also awarded compensation of an amount of Rs. 3,07,615/- under award no. 2/V-1984-85. Being aggrieved by the amount of the compensation under the award, a reference was sought under Section 18 which was registered as L.A. Case No. 16/1984-85. The same was dismissed by judgment dated 3.3.1990 and the petitioner preferred First Appeal No. 154 of 1990 in this Court which is pending disposal. The case of the petitioner is that the land having been 2 acquired by the Government for the extension of the National Highway and after so many years whatever extension was to be made has already been made and yet the petitioner‟s land continues to be vacant and useless and not needed for the purpose of extension of National Highway No. 30. It is further asserted by learned counsel for the petitioner that the petitioner has his residential house as well as shops on the said land and he continues to reside over the same and no possession of the land has ever been taken by the authorities till date. In the said circumstances, according to learned counsel for the petitioner, the land ought to be released to him in terms of the provisions of Section 48 of the Land Acquisition Act, 1894. It is further urged by learned counsel for the petitioner that by circular dated 12.1.1979 issued by the Special Secretary, Government of Bihar, the policy decision of the Government has been delineated in which it has been laid down that where land has been acquired but not utilized for a number of years then such surplus land, if not needed by the concerned Department for whose purpose it has been acquired, then it should be returned to the Revenue and Land Reforms Department of the Government which, after making necessary enquiry from the other Government departments including Public Undertakings or Enterprises of the State Government or the Central Government regarding their requirements for such land and finding that the same is not required, shall return the same to the landowners. The petitioner claims that in view of the fact that the land has not been utilized even after more than 20 years since the same was 3 acquired and possession of the same having not been taken the State Government should be directed to act in terms of the said circular dated 12.1.1979 and release the land in favour of the petitioner. In the counter affidavit and the supplementary counter affidavit filed on behalf of the State respondents, the stand that has been taken is that after the acquisition of the land in question possession has also been taken and in that view of the matter, there can be no question of release of the land since under Section 48 of the Act only with respect to such lands State may withdraw from the acquisition of which possession has not been taken. Countering the said stand in the counter affidavit learned counsel for the petitioner submits that the possession referred to in Section 48 of the Act is actual physical possession by the State and not a mere notional or paper possession. It is submitted that whatever documents have been annexed in the counter affidavit are in the nature of mere paper transactions in relation to possession and they do not amount to actual possession having been taken over by the respondents and thus the petitioner would still be entitled to the benefit of Section 48 of the Act read with the aforesaid circular dated 12.1.1979. In support of the aforesaid proposition learned counsel for the petitioner relies upon a Division Bench decision of this Court in the case of Ram Sarowar Thakur Vs. The State of Bihar & Ors.: 1978 BBCJ 726, in paras-10 and 11 of which relying upon the decisions of the Supreme Court, it has been held as follows:- “10. Whenever a question arises as to whether power 4 under Section 48 can be exercised in view of the possession having been taken by the State Government, the court has to record a definite finding on that issue on the materials on record. This finding cannot be based merely on presumptions and conjectures. Reference in this connection may be made to the judgement of the Supreme Court in the case of M/s. Jetmull Bhojraj V. The State of Bihar & Ors.: AIR 1972 SC 1363, where while considering the question about the exercise of power under section 48 of the Act it was observed: “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). 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.” Thereafter, the question whether possession was taken or not, was considered on materials on record, and it was found that in the Land acquisition case merely an order directing the Kanungo to deliver possession at the spot to the representative of the Requisitioning Officer was not enough for the purpose of holding that possession had been taken. It was also pointed out that there was no material on the record to show that the appropriate Government had given to the Collector any direction under sub-section (1) of Section 17 to take possession. In the instant case, even order sheet of the Land Acquisition Officer has not been produced nor there is any averment that he ever directed anyone to take possession of the land in question on behalf of the Collector. 11. It was then submitted that possession contemplated by section 48 of the Act can be even a symbolical possession. It is difficult to accept this contention. In the case of Balwani Narayan Bhagat Vrs. M.D. Bhagat and others: AIR 1975 SC 1767 the Supreme Court has considered that question and it was observed:- “…… 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 interest in the land are sought to be acquired by it. There can be no question of taking „symbolical‟ 5 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.” My considered opinion is that on the materials on record, it has not been established that the possession had been taken by the Collector in the Land Acquisition Proceeding. As such, the power under section could have been exercised by the State Government.” Learned counsel for the petitioner in this regard states that the document dated 21.3.1985 annexed as Annexure-B to the supplementary counter affidavit of the State-respondents is a mere paper transaction showing that the land has been handed over to Shri Ram Badan Pandey, Junior Engineer, National Highway, Mohania. According to learned counsel the same by itself cannot be considered as an act of taking over actual physical possession by the respondent- authorities and in terms of what has been decided in Ram Sarowar Thakur‟s case such handing over possession by one State authority to another is not sufficient and on the basis of the same in that case it was held that it does not amount to taking over of possession in terms of the provisions of the Land Acquisition Act. Learned Additional Advocate General No. 3, appearing for the State, on the other hand, relies upon the original records which he has produced for perusal of the Court. It is submitted by him that the present matter does not stand on the same footing as Ram Sarowar Thakur‟s case and in this case there has been taking over of possession by the respondent-authorities where upon the same 6 was handed over to the requisitioning authority for the purpose of extension of National Highway. Learned counsel refers to letter no. 4563 dated 27.12.1984 issued from the Government of Bihar, Department of Revenue and Land Reforms under the signature of the Deputy Secretary of the Department addressed to the Additional Collector, Rohtas in which he has been authorized under Section 17(1) of the Act to take over possession of the land after the expiry of 15 days from the publication of the notification under Section 7. Learned counsel next refers to the order sheet of the Collector/Additional Collector in the said case as recorded on 11.1.85/1.2.1985 in which reference has been made to the orders received from the Government by the said letter dated 27.12.1984 and thereafter he has directed his subordinate authorities to take steps for possession and it is recorded by the side of the said order that on 21.3.85 the Kanungo went to the spot and thereafter handed over possession to the Junior Engineer, Shri Ram Badan Pandey of National Highway. On the basis of the aforesaid facts, it is submitted by learned Additional Advocate General No. 3 that all the requirements for taking over proper delivery of possession of the land as observed in Ram Sarowar Thakur‟s case, has been taken in the present matter and thus the actual physical possession of the land has been taken. Learned counsel for the petitioner further states that the steps as shown in the said proceedings of the case were not sufficient and the authorities were required to issue notice to the petitioner and the actual possession should have been taken over in his 7 presence otherwise it is just a paper transaction and the petitioner is not aware of any such possession ever having been taken and still continues in possession. On a consideration of the entire facts and circumstances of the case and of the materials on the record, this Court finds that the requirement under the Land Acquisition Act for taking over possession of the land has been completed in the present matter as observed in Ram Sarowar Thakur‟s case (supra). In the present matter, the State Government issued a direction under Section 17(1) to the Additional Collector to take over possession of the land. From the order sheet produced before this Court also it is evident that thereafter a direction was issued to take possession on behalf of the Collector and the same has also been taken. In the present case the respondents do not rely only upon Annexure-B which is the document of handing over possession to the Junior Engineer rather all the required formalities have also been complied with and thus it cannot be said that the formalities and certificate of possession were mere paper transactions and do not become an evidence of actually taking over possession of the land. Once it is held that actual physical possession of the land has been taken over then there can be no question of the application of Section 48 of the Act. The assertion of learned counsel for the petitioner that the petitioner is residing over the land cannot change the fact that the Government has taken over possession of the land and continuance over the same by the petitioner can only be as 8 that of an encroacher or trespasser since admittedly he has received the compensation for the same and he is only contesting the matter in the First Appeal for the enhancement of the said compensation and there is no challenge to the legality of the Land Acquisition Proceedings. In the aforesaid view of the matter, this Court does not find any merit in the present writ application and it is accordingly dismissed. S.Pandey. (Ramesh Kumar Datta, J.)