LPA-1310-1994 (O&M) v. Mr. Shailendra Jain, Senior Advocate with Mr. Rahul, Advocate, Mr. Anant Gill

Judgment

1. In the present appeal, the challenge is to the impugned order dated 04.03.1994 passed by the learned Single Judge, whereby the challenge to the acquisition proceedings, which had been initiated by the appellant- State for the construction of New Central Jail, Ludhiana vide notification dated 25.01.1978 was set aside on the basis of the instructions (vide letter No. 1/55/78-LR(i) 26008) dated 18.12.1979 issued by the Government of Punjab, according to which, possession of the land in question which had been acquired was required to be taken within a period of one year of acquisition; otherwise, the acquisition so done would stand lapsed. While passing the impugned order dated 04.03.1994, learned Single Judge has held that since the actual possession of the land in question was not taken by the State within the stipulated period of one year, therefore, as the actual possession of the land so acquired continued to remain with the respondents, RIYA 2026.04.01 10:21 I attest to the accuracy and integrity of this document LPA-1310-1994 (O&M) 2 hence, the acquisition proceedings were set-aside.

2. Certain facts need to be mentioned for the correct appreciation of the issue in hand.

3. In order to construct the jail premises in District Ludhiana, a notification under the provisions of the Land Acquisition Act, 1894 (herein after referred to as ‘the 1894 Act’) was issued for acquisition of land in question by the Competent Authority on 25.01.1978. The said notification was issued for the emergent acquisition of the land in question, so as to construct the jail premises in the District Ludhiana. In view of the emergent provisions having been invoked, possession of the land was taken vide Daily Diary Report (Rapat Roznamcha) dated 20.03.1978 for the year 1977-78 (Annexure R-2/T) and was handed over to the Jail Authorities.

4. Thereafter, an award dated 28.12.1979 was passed by the Land Acquisition Collector while dealing the question of grant of interest on compensation. The said award showed that possession was not handed over to the department.

The said award was subsequently challenged by the writ petitioners (respondents herein) by way of filing a writ petition in the year

1984. The primary contention raised by the writ petitioners which challenging the award dated 28.12.1979, as well as the act of taking over of possession of land by authorities concerned, was based upon the instructions dated 18.12.1979 issued by the Government of Punjab. According to the said instructions, in case possession of the land sought to be acquired had not been taken within a period of one year from the notification issued under Section 6 of the Land Acquisition Act, such acquisition would stand lapsed.

6. The contention raised by the respondents/writ petitioners before RIYA 2026.04.01 10:21 I attest to the accuracy and integrity of this document LPA-1310-1994 (O&M) 3 the learned Single Judge was that the actual possession of the land in question continued to remain with them even after a period of approximately five years from the initiation of the acquisition proceedings and the passing of the award dated 20.03.1978. Therefore, it was argued that the said award which was passed qua the land in their possession should be deemed to have been lapsed keeping in view the instructions dated 18.12.1979 and that the respondents before the learned Single Judge who are appellants herein be restrained from taking the actual possession of the said land.

7. The State contested the claim of the respondents by placing on record certain facts that, as per the revenue record, particularly the Jamabandi for the year 1975–76, the owner of the land in question was shown to be the Gram Panchayat of the area in question. It was further contended that possession of the land in question had already been taken from the said Gram Panchayat on 20.03.1978 and an entry in the Daily Diary Report (Rapat Roznamcha) to that effect had already been entered into whereby it had been clearly stipulated that land acquired belongs to Gram Panchayat of village Jamalpur, Awan. Therefore, the plea being raised by the respondents that the land continued to remain in their possession even after a period of five years of passing of award dated 28.12.1979 and as per the instructions dated 18.12.1979 and that, in view of the instructions dated 18.12.1979, the acquisition should be treated as having lapsed, is incorrect.

8. The learned Single Judge, after appreciating all the issues raised, vide impugned order dated 04.03.1994, came to the conclusion that though, an entry in the Daily Diary Report (Rapat Roznamcha) No. 224 dated

20.03.1978 to the effect that possession of land in question has been taken into consideration, was entered into record but as a matter of fact, the same RIYA 2026.04.01 10:21 I attest to the accuracy and integrity of this document LPA-1310-1994 (O&M) 4 is only to be deemed as a symbolic possession. Since the actual possession of the land continued to remain with the respondents-writ petitioners, the learned Single Judge took into consideration the instructions dated

18.12.1979 and held that the acquisition of the land belonging to the respondents is bad in law and same stands nullified. Consequently, the acquisition proceedings, which had been initiated in respect of the said land were treated as having been withdrawn or abandoned pursuant to the notifications issued by the State under Sections 4 and 6 of the Land Acquisition Act as per instructions dated 18.12.1979.

9. Hence, the present appeal is being preferred by the appellant- State challenging the impugned order dated 04.03.1994 passed by the learned Single Judge.

10. Learned counsel appearing on behalf of the appellant-State submits that the reliance which is being placed by the learned Single Judge upon the instructions dated 18.12.1979 so as to treat the acquisition of land have been lapsed is incorrect on two accounts. Firstly, that the said instructions was withdrawn later in the year 1980 and second, the question as to validity of said instructions so as to invoke the lapse of acquisition as a matter of right has already been dealt with by the Hon’ble Supreme Court of India, wherein it has been held that the instructions dated 18.12.1979 cannot be relied upon to invalidate acquisition proceedings merely on the ground that possession of the land sought to be acquired was not taken within a period of one year from the issuance of the notification under Section 6 of the Land Acquisition Act which settled principle of law qua the instructions dated 18.12.1979 was in existence but was ignored by the learned Single Judge.

11. Learned counsel for the appellant further argues that the learned RIYA 2026.04.01 10:21 I attest to the accuracy and integrity of this document LPA-1310-1994 (O&M) 5 Single Judge has erred while recording the findings that the acquisition done by appellant in the present case is bad by placing reliance upon the instructions dated 18.12.1979.

12. Learned counsel for the appellant further argues that a dispute was already existing with regard to the ownership of the land in question at the hands of the predecessor-in-interest of the respondents as well, as the gram panchayat had raised the challenge to the allotment of the said land in the hands of the predecessor-in-interest of the respondents which proceedings were pending at the time when the land was sought to be acquired in the year 1978 and as per the revenue record, owner was Gram Panchayat. It is, therefore, contended that on the date when the land was sought to be acquired, the revenue record reflected that the ownership of the land was in the name of the Gram Panchayat, from whom possession had already been taken in the year 1978, which is clear from Roznamcha Report dated 20.03.1978. Hence, the findings recorded by the learned Single Judge which are based upon the instructions dated 18.12.1979, were factually incorrect as the land in question belonged to Gram Panchayat from whom the possession had already been taken hence the impugned order passed by the learned Single Judge is liable to be set aside on this ground as well.

13. On the other hand, learned Senior counsel appearing on behalf of the respondents/writ petitioners submits that the import of the instructions dated 18.12.1979, by learned Single Judge so as to record a findings that acquisition of land stood lapsed was perfectly valid and legal. Learned Senior counsel for the respondents further argues that even otherwise, merely that an entry has been recorded in Daily Diary Report (Rapat Roznamcha) to the effect that possession of land in question has been taken RIYA 2026.04.01 10:21 I attest to the accuracy and integrity of this document LPA-1310-1994 (O&M) 6 on 20.03.1978 and that too without stating that the same is being done on the basis of the power given by the Collector to do so, who is only authorized to seek the possession of the land in question, the Daily Diary Report (Rapat Roznamcha) dated 20.03.1978 will not give a right to State to claim that the possession of the land in question had been taken by them on such date , especially when, the actual possession of the land still remained with the respondents, hence, once even after a period of more than four decades the land remains in possession with the respondents, the acquisition of land so done has to be treated as lapsed as the said land has not been used for the purpose for which, the same was acquired. Therefore, the acquisition is liable to be treated as having lapsed.

14. Learned Senior counsel for the respondents also submits that since there were trees and crops standing on the land in question belonging to respondent No. 1, which is also clear from records placed, possession of land in question could not have been taken from the respondents without first offering them the compensation for the same, prior to the passing of the award. Therefore, the acquisition has rightly been set-aside by the learned Single Judge, though the occasion to adjudicate upon this aspect did not arise, as, the learned Single judge allow the writ petition on the basis of the instructions dated 18.12.1979.

15. Learned Senior Counsel further argues that actual possession of the land was never taken from the respondents, and the Gram Panchayat had no authority to hand over possession of the same in the year 1978, as, the said Gram Panchayat was not in existence at that time, as no elections of the Gram Panchayat had been held after the year 1975. Therefore, the assertion that possession of land was taken from the Gram Panchayat is incorrect. RIYA 2026.04.01 10:21 I attest to the accuracy and integrity of this document LPA-1310-1994 (O&M) 7

16. We have heard learned counsel for the appellant-State as well as learned Senior Counsel for the respondents and have gone through the case file with their able assistance.

17. Certain facts, which are very relevant for the adjudication of the present case, are that the predecessor-in-interest of the respondents/writ petitioners had been allotted the land from evacuee pool. However, the said allotment was made the subject matter of challenge by the Gram Panchayat, and the dispute was pending before the competent authorities on the date when the acquisition notification was issued with respect to the land in question.

18. It is a conceded position that on the date when the notification for acquisition of the land was issued in 1978, the revenue record showed the Gram Panchayat as the owner of the land in question. Further, the possession of the land in question in pursuance to the emergent acquisition was taken from the gram panchayat by the authorities concerned, an entry to which effect in the Daily Diary Report (Rapat Roznamcha) dated 20.03.1978 has already been recorded.

19. The question which arises is whether, in view of these facts, the acquisition sought to done can be deemed to have been lapsed, as has been held by the learned Single Judge, based on the instructions dated 18.12.1979.

20. It is a conceded fact before this Court also that though the instructions dated 18.12.1979 were issued but, the same were withdrawn within the short period of time in the year 1980. The question which now arises is whether the acquisition of the land can be treated as having been lapsed merely on the ground that actual possession of land in question remained with the respondents. RIYA 2026.04.01 10:21 I attest to the accuracy and integrity of this document LPA-1310-1994 (O&M) 8

21. It may be noticed that, the learned Single Judge has recorded a finding that the Daily Diary Report (Rapat Roznamcha), by which possession of the land in question was taken on 20.03.1978 is correct but such possession is to be treated as a symbolic possession only.

22. The learned Single Judge, went ahead to hold in favour of the respondents-writ petitioners that actual possession of the land in question continued to remain with them, hence as per instructions dated 18.12.1979, acquisition will lapse.

23. The next question which now arises is whether, the entry recorded in the Daily Diary Report (Rapat Roznamcha) with regard to taking of the possession of land would be good enough to hold that the possession of the acquired land in question was taken or not so a to decide the lapsing of the acquisition.

24. The said question of law has already been settled by the Hon’ble Supreme Court of India in SLP (C) Nos. 9036-9038 of 2016, titled as Indore Development Authority versus Manoharlal and others etc., decided on

06.03.2020. The relevant paragraphs of the said judgment 270 to 277 are as under:- “270. The decision in Velaxan Kumar (supra) cannot be said to be laying down the law correctly. The Court considered the photographs also to hold that the possession was not taken. Photographs cannot evidence as to whether possession was taken or not. Drawing of a Panchnama is an accepted mode of taking possession. Even after re-entry, a photograph can be taken; equally, it taken be taken after RIYA 2026.04.01 10:21 I attest to the accuracy and integrity of this document LPA-1310-1994 (O&M) 9 committing trespass. Such documents cannot prevail over the established mode of proving whether possession is taken, of lands. Photographs can be of little use, much less can they be a proof of possession. A person may 175 (1979) 4 SCC 27 176 (1988) Supp. SCC 488 (1998) 4 SCC 387 re-enter for a short period or only to have photograph. That would not impinge adversely on the proceedings of taking possession by drawing Panchnama, which has been a rarely recognised and settled mode of taking possession.

271. In the decision in Raghbir Singh Sehrawat v. State of Haryana178, the observation made was that it is not possible to take the possession of entire land in a day on which the award was declared, cannot be accepted as laying down the law correctly and same is contrary to a large number of precedents. The decision in Narmada Bachao Andolan v. State of M.P179, is confined to particular facts of the case. The Commissioner was appointed to find out possession on the spot. DVDs. and CDs were seen to hold that the landowners were in possession. The District Judge, Indore, recorded the statements of the tenure-holder. We do not approve the method of determining the possession by appointment of Commissioner or by DVDs and CDs as an acceptable mode of proving taking of possession. The drawing of Panchnama contemporaneously is sufficient and it is not open to a court Commissioner to determine the factum of possession within the purview of Order XXVII, Rule 9 CPC. Whether possession has been taken, or not, RIYA 2026.04.01 10:21 I attest to the accuracy and integrity of this document LPA-1310-1994 (O&M) 10 is not a matter that a court appointed Commissioner cannot opine. However, drawing of Panchnama by itself is enough and is a proof of the fact that possession has been taken.