Case: M/S. Jethmull Bhojraj Vs. State Of Bihar &amp; Ors

Constitution. It is open to the appellant to seek such other remedy as may be available to him under law if the Government had unlawfully taken possession of those lands. The question whether the Government had unlawfully taken possession of those lands in 1954, as we shall presently see, is wholly irrelevant for the decision of these appeals.10. The next point that arises for decision is whether delivery of the lands notified for acquisition was taken under Secton 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:"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."12. 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 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. O. on 16-11-59 Draft addressed to R. O. is signed."But there is nothing to show that this order was implemented. According to the respondent this order was not implemented.13. Relying on the decision of this Court in Lt. Governor of Himachal Pradesh v. Avinash Sharma, (1971) 1 SCR 413 = (AIR 1970 SC 1576 ) it was contended by Mr. R. K. Garg, the learned Counsel for the appellant that once it is established that the possession of the land notified for acquisition was taken in 1953 or 1954, it was unnecessary for his client to establish that any possession was taken under Section 17 (1). According to him on the expiration of 15 days after the issue of notices under Section 9 (1), the lands in question vested in the Government. The decision in question does not lend any support for this contention. In that case not only the property had been taken possession of by the Government even before the acquisition proceedings had started but appropriate proceedings under Section 9 (1) and Section 17 (1) were also taken though there was no actual taking of possession under Section 17 (1). Under those circumstances this Court observed:"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 the possession of the Government."14. In the present case, as mentioned earlier, no material has been placed before the Court to show that action under Section 17 (1) had been taken.15. It was next contended by Mr. Garg and Mr. A. K. Sen, that the expression whenever the appropriate Government so directs" in Sec. 17 (1) refers to urgency and not to the taking of possession of the lands notified for acquisition. Their further contention was that no sooner the Government issued the notification under S. 17 (4), the factum of urgency was established and hence on the expiration of the fifteen days from the publication of notice under Section 9 (1) the lands which were already in the possession of the Government vested in the Government. We are unable to accept this construction of Section 17(1). In our judgment Section 17 (1) is plain and unambigious. The expression "whenever the appropriate Government so directs" in that section refers to the taking of possession and not to the declaration of urgency. Even in cases of urgency, the Government may not think it necessary to take immediate possession for good reasons. Neither the language of Section 17 (1) nor public interest justifies the construction sought to be placed by the learned Counsel for the appellant.

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

Explanation:
0[ds]7. Now coming to the question whether the Government took possession of the lands in question in 1954, it was conceded that the Government was not competent to take possession of those lands either under the notifications issued under Sections 14 and 21 of the Bihar Private Forest Act 1947 or under the notification issued under Section 29 of the Indian Forest Act. The case of the appellant is that the Government unlawfully took possession of the properties. In support of that contention reliance was mainly placed on the letter written by the Divisional Forest Officer, Kodarma Division to the Range Officer, Kodarma on October 1, 1958 as well as on the requisition sent to the Land Acquisition Officer by the same Officer on January 24, 1959 (Annexure II). The concerned Divisional Forest Officer was one Brij Mohan Prasad. In the letter in question heforests in the above villages are in possession of the Forest Department since some time past........." In the requisition again, he mentioned:"The land was previously notified under Section 29 (3) of the I. F. A. and it was demarcated and possession taken. Later on it was found that the land in question was raiyati, it was necessary to acquire under the Land AcquisitionPara 12 of that requisition, he furtheris already under possession and this is to be formally handed over immediately.This Officer has filed an affidavit before the High Court. Therein he explained that he made the statement in question under an erroneous impression that the Government came into possession of the lands in question in view of the notification issued under Section 29 of the Indian Forest Act. This statement of his receives support from his letter written to the Land Acquisition Officer on August 11, 1959 wherein hereference to your above letters, I have to say that Debipur Forest was notified under the Indian Forest Act on 8th December, 1953 and that of Telaiya on the 22nd November 1954. Thus, date of possession is 8th December, 1953 and 22nd November 1954 respectively.It is possible that this officer had an erroneous impression as to the effect of a notification under Section 29 of the Indian Forest Act. The other documents relied on by the appellant are wholly inconclusive. Hence there is no need to refer to them. We are in agreement with the High Court that there is no satisfactory evidence to show that the Government had taken possession of these lands in 1953 or 1954. As the parties had not enough opportunity to adduce evidence on this point, we will not be justified in finally deciding this question. It is sufficient if we say that on the material on record, the High Court was justified in not pronouncing on this question in a petition under Article 226 of the Constitution. It is open to the appellant to seek such other remedy as may be available to him under law if the Government had unlawfully taken possession of those lands. The question whether the Government had unlawfully taken possession of those lands in 1954, as we shall presently see, is wholly irrelevant for the decision of theseGovernment 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 Actin 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.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)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 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,B. P. Yadav Kgo, to deliver possession at the spot to the representative of the R. O. on 16-11-59 Draft addressed to R. O. is signed.In the present case, as mentioned earlier, no material has been placed before the Court to show that action under Section 17 (1) had been taken.15. It was next contended by Mr. Garg and Mr. A. K. Sen, that the expression whenever the appropriate Government so directs" in Sec. 17 (1) refers to urgency and not to the taking of possession of the lands notified for acquisition. Their further contention was that no sooner the Government issued the notification under S. 17 (4), the factum of urgency was established and hence on the expiration of the fifteen days from the publication of notice under Section 9 (1) the lands which were already in the possession of the Government vested in the Government. We are unable to accept this construction of Section 17(1). In our judgment Section 17 (1) is plain and unambigious. The expression "whenever the appropriate Government so directs" in that section refers to the taking of possession and not to the declaration of urgency. Even in cases of urgency, the Government may not think it necessary to take immediate possession for good reasons. Neither the language of Section 17 (1) nor public interest justifies the construction sought to be placed by the learned Counsel for the appellant.