IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.: 183 of 2004 Reserved on.: 21.8.2009. Date of decision : 10.9.2009. Urmila and others …Appellants. Versus H.P.Housing Board and another …Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 Yes. For the Appellants: Mr. Tara Singh Chauhan, Advocate. For the Respondent No.1: Mr. Chandernarayan Singh, Advocate. Deepak Gupta, J. This Regular Second Appeal was admitted on the following questions of law:- 1. Whether the suit of the plaintiff could have been decreed for possession especially when no possession was delivered by the Land Acquisition Collector, as is required under Section 16 of the Land Acquisition Act? 2. Whether a person can be dispossessed from his house without paying compensation as is required under the Land Acquisition Act. The brief facts giving rise to the filing of the present appeal are that admittedly the H.P. Housing Board approached the State for acquisition of land for setting up of a Housing Board Colony in Bilaspur. Notification under Section 4 of the Land Acquisition Act, 1894 (here-in-after referred to as the Act) for acquisition of the land was issued on 27.4.1978. Award was announced on 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 16.7.1984. Most of the land was taken over except the land in possession of respondent No.1 which he had purchased from respondent No.2 measuring 0-5 bighas comprised in Khasra No. 158/1 (old) corresponding to Khasra No. 693/1 (new), Tehsil Sadar, Distt. Bilaspur. It was alleged that at the time of notification under Section 4 there was no structure on the land but at the time of the taking over the possession there was structure erected by defendant No.1. A sale deed was executed by defendant No.2 in favour of defendant No.1 on 13.09.1982, after notification under Section 4 was issued. The Housing Board first filed a petition for recovery of the disputed land under the H.P. Public Premises (Land Eviction and Land Recovery Act), 1971 but that application was rejected and thereafter the Housing Board filed the suit for possession of the land. The suit was contested on the ground that in fact the land had been purchased by the defendant No.1 in the year 1975 and there no notice was issued to defendant No.1 and the other ground taken was that since the State had not taken over possession of the land in terms of Section 16 of the Act the suit itself was not maintainable. The trial Court held that once the award is announced the Collector is to take possession of the acquired land under Section 16 of the Land Acquisition Act and it was only thereafter that the suit land would have vested in the Government free from all encumbrances. It was held that without physical delivery of possession the acquired land cannot vest in the State Government even after announcement of the award. Therefore, the Housing Board was not held owner of the suit land and it had no right to claim possession. Appeal was filed by the Housing 3 Board, which was allowed by the learned District Judge who held that since the land had been validly acquired and compensation paid to defendant No.2 the defendants had no right to object to the possession being handed over the Housing Board. He came to the conclusion that the defendant No.1 was a tres-passer on the suit land and had constructed the house during the pendency of the acquisition proceedings and therefore, he had no right to remain in possession of the land. He also held that the suit land was part of Khasra No.158 and since admittedly the possession of the remaining land had been taken over, the possession of the suit property had also been symbolically taken over. I have heard Shri Tara Singh Chauhan, learned counsel for the appellants and Shri Chandernarayan Singh, learned counsel for respondent No.1. The main argument of Shri T.S.Chauhan, learned counsel for the appellants, is that till possession is taken over, the State could not have been deemed to be owner of the property in terms of Section 16 of the Act and there could have been no valid transfer of title to the Housing Board and hence the Housing Board had no right to file the suit. A number of decisions have been cited at the Bar. In State of Bihar vs. Dr. G.H.Grant and another, AIR 1960 Patna 382, a full bench of the Patna High Court held as follows:- “In a proceeding under the Land Acquisition Act, title to the land does not pass to the State as soon as award under Section 11 is made and filed under Section 12, but it is deferred till possession is taken under Section 16 of the Act.” The Apex Court in Balwant Narayan Bhagde vs. M.D.Bhagwat and others, AIR 1975 SC 1767, held as follows:- 4 “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.” Having held so, the Apex Court further went on to hold as follows:- “Though it cannot be laid down as 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 very case it was held on the facts and circumstances of the case that since the land was lying fallow and there was no crop on it at the material time, the act of the Tahsildar 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. Even if the appellant (tenant) entered upon the land and resumed possession of it the very next moment after the land was actually taken possession of land became vested in the Government, such act on the part of the appellant did not have the effect of obliterating the consequences of vesting.” In Sate of Punjab and others vs. Sadhu Ram, (1997) 9 SCC 544, the Apex Court held as follows:- “It is an undisputed fact that consequent upon the passing of the award under Section 11 and possession taken of the land, by operation of Section 16 of the Act, the right, title and interest of the erstwhile owner stood extinguished and the Government became absolute owner of the property free from all encumbrances. Thereby, no one has nor claimed any right, title and interest in respect of the acquired land.” The question as to how possession is to be taken over under Section 16 was also considered by the Apex Court in P.K.Kalburqi 5 vs. State of Karnataka and others, (2005) 12 SCC 489, wherein the Apex Court held as follows:- “Moreover, the Hon’ble Minister who passed the order of denotification of the lands in question sought to make a distinction between symbolic possession and actual possession and proceed to pass the order on the basis of his understanding of the law that symbolic possession did not amount to actual possession, and that the power to withdraw from the acquisition could be exercised at any time before “actual possession” was taken. This view appears to be contrary to the majority decision of this Court in Balwant Narayan Bhagde v. M.D.Bhagwat, wherein this Court observed that how such possession would 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. In the instant case the lands of which possession was sought to be taken were unoccupied, in the sense that there was no crop or structure standing thereon. In such a case only symbolic possession could be taken, and as was pointed out by this Court in the aforesaid decision, such possession would amount to vesting the land in the Government. Moreover, four acres and odd belonging to the appellant was a part of the larger area of 118 acres notified for acquisition. We are, therefore, satisfied that the High Court has not committed any error in holding that possession of the land was taken on 6.11.1985. Even the order of the Minister on which considerable reliance has been placed by the appellant indicates that possession of the lands was taken, though symbolic.” I am of the considered opinion that the latest judgement of the Apex Court in P.K.Kalburqi vs. State of Karnataka and others (supra) squarely covers the present case. The Land Acquisition Act does not provide a mechanism for taking over possession of the acquired property. Under Section 16, it is only provided that the Collector shall take over possession of the land. How he will act has not been specified. In the present 6 case, it appears that the Collector did not deliver actual possession of the property which is in dispute. This happened due to the reason that after notification under Section 4 was issued the defendant No.1 purchased the land from defendant No.2. Such a sale itself was totally illegal. Once the notification under Section 4 is issued, the land owner has no right to sell the land in question. The sale deed admittedly was executed after the notification under Section 4 was issued and as held by both the Courts below that the sale deed was totally illegal and the original owner had no right to execute the same. It is, therefore, obvious that the defendant No.1 has no title to the land in question. Even assuming for the sake of argument that title had not vested in the State since the possession had not been taken over by the State in terms of Section 16 can a rank tres-passer who has no right to the property challenge the right of a Company or the Housing Board to take over possession when the land has been acquired in accordance with law and compensation for the land has admittedly been paid to the true owner. The answer obviously has to be that the Housing Board is entitled to claim possession of the property for which it has paid the compensation. Even otherwise, in the present case possession can be deemed to have been delivered since it was not possible for the Collector to have delivered possession from a tres-passer to the person for whose benefit the acquisition was conducted. The learned lower appellate Court held as follow:- “The State of H.P. had acquired Khasra No. 158 measuring 2-11 Bighas of defendant No.2 for construction of social housing board colony. The suit land was a part of Khasra No. 158. It had been conceded on behalf of the defendants that the plaintiff had 7 constructed social housing board colony in the land under acquisition notified for acquisition vide notification under Section 4 of the Act, copy Ext.PB. This clearly established that the Collector Land Acquisition after passing of award dated 16.7.1984 had taken possession of the land under acquisition. The plaintiff had taken possession of the land under acquisition from the Collector Land Acquisition and i.e. why social housing board colony stood constructed in revenue estate, Lakhanpur. It was true that PW-1 Arun Gupta, Executive Engineer in his cross-examination had admitted that possession of the suit land under Section 16 of the Act had not been taken over by the Collector Land Acquisition. Such statement of PW-1 in no way improved the defence of the defendants. Due notice has to be taken of the fact that the plaintiff could not be expected to prove as to how the Collector Land Acquisition had taken possession of the land, in question, from the proprietors. This apart when possession of a major portion of Khasra No.158 had been taken over by the plaintiff, it had to be assumed that the plaintiff did take possession of the suit land as well. It was nowhere the defence of the defendants Nos.1 and 2 that either of them had resisted their dispossession of the suit land.” In view of the law laid down by the Apex Court, I am totally in agreement with what has been held by the learned Appellate Court. In view of the above discussion, I find no merit in the appeal, which is accordingly rejected. No order as to costs. September 10, 2009. ( Deepak Gupta ) ™ Judge.