Case: M/S Magnum Promoters P.Ltd Vs. Union Of India

been done in view of the interim order referred to supra and also the same has not been done in the presence of independent witnesses as required in law. 18. Further, this Court held at para 26 in Raghuvir Singh Sehravat’s case (supra) as under:- “26. Bhagwati, J. (as he then was) and Gupta, J., who constituted the majority did not agree with Untwalia, J. and observed as under:(Balwant Narayan Bhagde case, SCC pp. 711-12, para 28)“28. … We think it is enough to state that 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. 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. How such possession may 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……….” (emphasis laid by this Court) Thus, in view of the above decisions, this Court has clearly laid down the legal principle as to how taken over physical possession of the acquired land means the actual taking of possession of it of it from the land owners/interested persons. 19. The learned counsel on behalf of respondent Nos. 2,3 and 4 sought to distinguish the said judgments by placing reliance upon the judgment in the case of Sita Ram Bhandar Society (supra) wherein this Court opined thus:- “28. A cumulative reading of the aforesaid judgments would reveal that while taking possession, symbolic and notional possession is perhaps not envisaged under the Act but the manner in which possession is taken must of necessity depend upon the facts of each case. Keeping this broad principle in mind, this Court in T.N. Housing Board v. A. Viswam after considering the judgment in Narayan Bhagde case, observed that while taking possession of a large area of land (in this case 339 acres) a pragmatic and realistic approach had to be taken. This Court then examined the context under which the judgment in Narayan Bhagde case had been rendered and held as under: (Viswam case, SCC p. 262, para 9)9. It is settled law by series of judgments of this Court that one of the accepted modes of taking possession of the acquired land is recording of a memorandum or panchnama by the LAO in the presence of witnesses signed by him/them and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. It is common knowledge that in some cases the owner/interested person may not be cooperative in taking possession of the land.29. In Balmokand Khatri Educational and Industrial Trust v. State of Punjab yet again the question was as to the taking over of the possession of agricultural land and it was observed thus: (SCC p. 215, para 4)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.” 20. Further, on the plea taken by the learned counsel on behalf of the respondent nos. 2 and 3 regarding contravention of Sections 3 and 4 of the Act of 1972 for transfer of the land in question by the appellant during the pendency of the proceedings as it was acquired by the NCT on behalf of the Central Government by placing reliance on Article 239AA of the Constitution, with respect to the contention of 1972 Act is concerned, the same has no application to the fact situation. In view of the said provision, it has been contended by the learned counsel on behalf of the respondent nos. 2, 3 and 4 that the land and home subject-matters that are in Delhi are still with the Central Government and therefore, acquisition of land by NCT is the acquisition made by it on behalf of the Central Government. This is far-fetched argument of the learned counsel and therefore, the same cannot be accepted by us for the reason that the acquisition notification available in the original record would clearly show that the land is acquired by the NCT, Delhi and not on behalf of the Central Government. Hence, the said contention is liable to be rejected and accordingly rejected. 21. Apart from the said reason, even assuming for the sake of argument that the Act of 1972 is applicable, it has been specifically stated by the learned senior counsel that the competent authority has given permission to the appellants to transfer the land in favour of subsidiary company of the appellant. The same can be seen in para 5 of the sale deed produced before this Court which reads thus:- “5. The vendor have obtained NOC under provisions of the Delhi Land (Restriction on transfer) Act, 1972 from the concerned department/Tehsildar Notification Delhi and shall obtain all such necessary clearance/permission as may be required for effectively transferring and conferring the title on the Vendee.” Therefore, the provisions of Sections 3, 4, and 9 have no application to the fact situation on hand and there is no substance in this plea of the respondent and the same is rejected.22.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 1

Reasoning from the judgment:
1[ds]Thus, it is clear from the said document available on record that the possession of the building structure situated on theland was not taken by him on 27.12.2013. As per the possession memo available in the record, it is recorded in the said proceeding that the further action for taking over possession in respect of the land were to be continued by the Land Acquisition Collector on 28.12.2013 and there is no record to show as to whether the action continued on 28.12.2013 in this regard. The alleged taking over of possession of the land involved in this appeal was done on 31.12.2013, as per the document annexure R-1 memo of possession taking possession of the acquired land in Award no.07/98-99 is signed by the officers of the Land and Building Department of the third respondent; the same was alleged to have immediately been delivered to the DDA officials i.e. respondent no.5 on the same day. According to respondent Nos. 3 and 4, the possession of the land involved in this appeal has been allegedly taken by them without any objections being raised by the appellant-owner. The above said plea taken by them cannot be accepted by us as the same is wholly contrary to the factual position regarding possession of the land. The question of raising objection to respondent Nos. 3 and 4 for taking possession of the land by the appellant did not arise at all for the reason that notice in this regard was not issued to it calling upon it to handover possession of the land to the Land Acquisition Collector. The reasons stated at paragraphs 8 and 9 in the response affidavit filed by one Mr. Vivek Kumar Tripathi, who is the Land Acquisition Collector-respondent No. 4 in these proceedings with regard to limits of the then existing sub-divisions Tehsils in Delhi being modified, consequently the revenue estate of the boundaries of village Malikpur Kohi Rangpuri which previously formed part of District South, due to the said re-organisation, sub division, Delhi Cantonment and sub-division, Vasant Vihar which were earlier part of District of South West have become part of District New Delhi. Resultantly, village Rangapuri which was part of sub-division Vasant Vihar under the jurisdiction of Land Acquisition Collector, South-West fell under the jurisdiction of District New Delhi. The notification dated 11.09.2012 was issued by the first respondent creating 11 districts by altering sub-divisions Tehsils in Delhi. Land Acquisition of the land involved in these proceedings was transferred from District South-West to the office of respondent no.4 on 21.12.2012 and remaining records on 14.01.2014. The above said make believe story narrated by the Land Acquisition Collector in his affidavit is a deliberate intention to misrepresent facts to justify the alleged taking over possession of the land on 31.12.2013. The aforesaid explanation furnished by the Land Acquisition Collector in his affidavit for the alleged taking over possession of acquired land is wholly unnecessary and irrelevant. Therefore, the said explanation by him cannot be accepted by us. The averments made at para 10 of the response affidavit of Land Acquisition Collector are contrary to theKaryavahi (possession taking over proceedings) dated 27.12.2013 and the reason stated in the said memo is that the Land Acquisition Collector could not take possession of the building structure situated on the acquiredland, as the demolition squad was not available on that day. The possession of the land taking over document Annexure R-1 to the response affidavit dated 31.12.2013 produced by the Land Acquisition Collector in which it is stated that the possession of the land of the appellant has been taken on 31.12.2013 the said averment in the affidavit is contradictory to thent dated 27.12.2013 available in the original record. The contradictory statements made by the Land Acquisition Collector in his response affidavit at para 10 cannot be accepted by us. The plea sworn by the Land Acquisition Collector in the affidavit is a false statement of fact for the reason that the physical possession of the land is in fact not taken and could not have been taken by the Land Acquisition Collector from the appellant when the interim order ofth regard to the possession of land of the appellant was passed by this Court on 04.08.2008. The said order being well within the knowledge of the respondent Nos. 2-5 is evident from the record of proceedings of this Court dated 24.09.2010 as the names of learned counsel on behalf of the respondent Nos. 1-5 is shown in thisrecord of proceedings. The further plea taken by him at para 10 of the said affidavit that the second respondent enquired about the litigation status in respect of the order passed in relation to this case and other cases of village Rangpuri from the 5th respondent-DDA and did not receive any response from it is once again a false statement of fact. Therefore, the office of the 3rd respondent being unaware of any interim order ofis once again a false statement and the same has been deliberately made by him to justify his action as stated in the respondent affidavit. Hence, the statement of facts sworn to at paras 8-10 are liable to be rejected and accordingly rejected. Therefore, the plea of the Additional District Collector/Land Acquisition Collector and its officers to have allegedly taken over possession of the land as stated at paragraph 10 of the response affidavit is false and it amounts to contempt of this Court committed by them, as they have willfully disobeyed the interim order of this Court dated 04.08.2008. Therefore, the plea of taking over possession of land of the appellant either on 27.12.2013 as per the original record or on 31.12.2013 as per document Annexure R1 cannot be accepted by us. The respondents have misrepresented certain relevant facts to this Court by filing the above referred response affidavit with an oblique motive to deny the valuable statutory right accrued in favour of the appellant under Section 24(2) of the Act of 2013. Hence, the conduct of respondent No. 4 and officials of respondent No.3 in misrepresenting facts is deprecated byfrom the said reason, even assuming for the sake of argument that the Act of 1972 is applicable, it has been specifically stated by the learned senior counsel that the competent authority has given permission to the appellants to transfer the land in favour of subsidiary company of the appellant. The same can be seen in para 5 of the sale deed produced before this Court which readsThe vendor have obtained NOC under provisions of the Delhi Land (Restriction on transfer) Act, 1972 from the concerned department/Tehsildar Notification Delhi and shall obtain all such necessary clearance/permission as may be required for effectively transferring and conferring the title on thethe provisions of Sections 3, 4, and 9 have no application to the fact situation on hand and there is no substance in this plea of the respondent and the same is rejected.