Case: THE STATE OF HARYANA Vs. SUNDER LAL

only an offer on behalf of the State. If compensation was accepted without protest, it binds such party but subject to Section 28-A. Possession of the acquired land would be taken only by way of a memorandum, Panchnama, which is a legally accepted norm. It would not be possible to take any physical possession. Therefore, subsequent continuation, if any, had by the erstwhile owner is only illegal or unlawful possession which does not bind the Government nor vested under Section 16 divested in the illegal occupant. Considered from this perspective, we hold that the High Court was not justified in interfering with the award.?14. In Balmokand Khatri Educational and Industrial Trust, Amritsar v. State of Punjab, (1996) 4 SCC 212 , it has been observed that the normal rule of taking possession is drafting the panchnama in the presence of panchas. This Court 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 panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would tantamount only to illegal or unlawful possession.5. Under these circumstances, merely because the appellant retained possession of the acquired land, the acquisition cannot be said to be bad in law. It is then contended by Shri Parekh that the appellant-Institution is running an educational institution and intends to establish a public school and that since other land was available, the Government would have acquired some other land leaving the acquired land for the appellant. In the counter-affidavit filed in the High Court, it was stated that apart from the acquired land, the appellant also owned 482 canals 19 marlas of land. Thereby, it is seen that the appellant is not disabled to proceed with the continuation of the educational institution which it seeks to establish. It is then contended that an opportunity may be given to the appellant to make a representation to the State Government. We find that it is not necessary for us to give any such liberty since acquisition process has already been completed.?15. In P.K. Kalburqi v. State of Karnataka, (2005) 12 SCC 489, this Court held that if the land was vacant and unoccupied, taking symbolical possession would be enough.16. In Sita Ram Bhandar Society, New Delhi v. Lieutenant Governor, Government of NCT, Delhi, (2009) 10 SCC 501 , it was observed that mode of taking possession is by way of drawing of panchnama. Similar view has been reiterated in Omprakash Verma v. State of Andhra Pradesh, (2010) 13 SCC 158. 17. In M. Venkatesh v. Commissioner, Bangalore Development Authority, (2015) 17 SCC 1 , again it was reiterated that mode of taking possession is by drawing a panchnama. It is further held that the mode of taking possession adopted by BDA was permissible.18. In State of Madhya Pradesh v. Narmada Bachao Andolan, (2011) 7 SCC 639 , this Court held that it would depend upon the facts that of the individual case whether possession has been taken or not. We are of the considered opinion that possession has been taken as is apparent from the memorandum dated 21.7.2003 placed on record.19. Learned counsel for the respondent has submitted that there were two rooms in existence admeasuring 15?x12? and 18?x12? with boundary wall. He has taken us to the site plan, in which, now 10 shops are shown, besides that there are three rooms, one kitchen, and verandah. Thus, most of these structures have been erected subsequently. Even if there were two outhouses in existence at the time of issuance of Notification under Section 4 of the Land Acquisition Act, 1894 in the shape of rooms admeasuring 15x12 and 18x12 and boundary wall, obviously it was not meant for the residential purposes, but meant for agricultural purposes. It appears that once possession had been taken after making a trespass upon the land, construction has been raised. Most of these structures were not in existence as per the finding recorded by the High Court. Thus, the site plan rather than espousing the cause of the respondent, defeats the same. Once possession had been taken and compensation has been admittedly collected by the respondent, it was not open for him to apply for de-notification of land under Section 48 of the Land Acquisition Act, 1894 or for its release.20. The submission raised that land of two other incumbents has been released in 2006 and 2014, is of no avail. There is no concept of negative equality and the respondent cannot be permitted to take advantage of his wrong. The land had been acquired and thereafter respondent has trespassed upon the land and has raised construction, in completely illegal manner. He is not entitled to protect it. Based on such encroachment, he is not entitled to release of the land.21. It cannot be said that land acquired is unutilised land, as a matter of fact, lot of development has taken place as there is encroachment made, as such, land could not have been utilised and by making unwarranted interference by the High Court, the acquisition was ordered to be quashed. We are of the opinion that the prayer made by the respondent to apply for releasing the land as per the Notification dated 14.9.2018, cannot be entertained. The respondent cannot be given such a right as he has not come to the Court with clean hands. He is an encroacher and cannot be said to be entitled to any indulgence.22. It is apparent that acquisition has attained finality, the award was passed, compensation was collected and possession was taken long back in the year 2003.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]8. The drawing of panchnama of taking over of possession is not disputed. However, it was submitted that since there were two rooms, possession could not have been taken over in the manner in which it is stated in the aforesaid panchnama.9. It is a settled proposition of law that when the State acquires the large tract of land and draws the panchnama of taking possession, the same is enough for taking possession of the land. In the instant case not only the panchnama had been drawn, State has taken the possession by marking the land and a watchman was also posted to look after theare of the considered opinion that possession has been taken as is apparent from the memorandum dated 21.7.2003 placed onmost of these structures have been erected subsequently. Even if there were two outhouses in existence at the time of issuance of Notification under Section 4 of the Land Acquisition Act, 1894 in the shape of rooms admeasuring 15x12 and 18x12 and boundary wall, obviously it was not meant for the residential purposes, but meant for agricultural purposes. It appears that once possession had been taken after making a trespass upon the land, construction has been raised. Most of these structures were not in existence as per the finding recorded by the High Court. Thus, the site plan rather than espousing the cause of the respondent, defeats the same. Once possession had been taken and compensation has been admittedly collected by the respondent, it was not open for him to apply for de-notification of land under Section 48 of the Land Acquisition Act, 1894 or for its release.20. The submission raised that land of two other incumbents has been released in 2006 and 2014, is of no avail. There is no concept of negative equality and the respondent cannot be permitted to take advantage of his wrong. The land had been acquired and thereafter respondent has trespassed upon the land and has raised construction, in completely illegal manner. He is not entitled to protect it. Based on such encroachment, he is not entitled to release of the land.21. It cannot be said that land acquired is unutilised land, as a matter of fact, lot of development has taken place as there is encroachment made, as such, land could not have been utilised and by making unwarranted interference by the High Court, the acquisition was ordered to be quashed. We are of the opinion that the prayer made by the respondent to apply for releasing the land as per the Notification dated 14.9.2018, cannot be entertained. The respondent cannot be given such a right as he has not come to the Court with clean hands. He is an encroacher and cannot be said to be entitled to any indulgence.22. It is apparent that acquisition has attained finality, the award was passed, compensation was collected and possession was taken long back in the year 2003.