# Brij Mohan and others v. State of U.P. Thru Special Secy. and others

- **Citation:** (2012) 1 ILRA 354
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-02-28
- **Case number:** Civil Misc. Writ Petition No. 66066 of 2011
- **Bench:** Ashok Bhushan, Mrs. Sunita Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/brij-mohan-and-others-v-state-of-u-p-thru-special-secy-and-others-42155
- **Pages:** 23

## Headnote

C.S.C.
Sri Suresh Singh
Sri Zafar Naiyar

Land
Acquisition
Act-Section
48-Arepresentation
for
exemption
from
acquisition-rejected-on
ground
possession already taken-prior issuance
of G.O.-before taking possession no
notice given to petitioners-No signature
of
tenure
holders
on
Dakhalnama
memo-found
rejection
on
pertext
acquisition completed before existence
of
Govt.
order-hence
can
not
be
released-not
available-can
not
be
allowed to adopt pick and choose
Policy-order quashed-direction for fresh
consideration issued.

Held: Para 40

In view of the foregoing discussions, it
is clear that the reasons given by the
State Government for rejecting the
claim of the petitioners under Section
48 of the Act for release of their land,
are erroneous. The State Government in
its order dated 11th October, 2011 has
essentially
given
two
reasons
for
rejecting
the
claim.
Firstly
the
possession has been taken on 15th July,
2009 and 27th July, 2009 which land is
in possession of the Authority, hence
the same cannot be released and
secondly
before
issuance
of
the
Government order dated 27th August,
2010 the acquisition of land was already
complete in accordance with law. We
have already held that possession of the
land in dispute was not taken in
accordance with law on 15th July, 2009
and 27th July, 2009 hence the findings
of the State Government that release
cannot be made under Section 48 of the
Act is erroneous. The view of the State
Government
that
acquisition
has
already completed prior to issue of the
Government order dated 27th August,
2010 is also not correct. We have
already repelled
the submission
of
learned counsel for the respondents
that the Government order dated 27th
August, 2010 is not applicable with
regard to acquisition of petitioners'
land. Thus both the reasons given in the
order dated 11th October, 2011 is
unsustainable.
Case law discussed:
2009 ADJ 441; 2009 (1) ADJ 535; 2010 (7)
ADJ 329; 2010 (10) SCC 282; 2011 (11) ADJ
1; A.I.R. 1975 SC 1767; 1996 (4) SCC 212;
(2011) 5 SCC 394; (2011) 7 SCC 639; 2004 (1)
AWC 206; (1988) 1 SCC 50; (2003) 11 SCC
772 (II); 2010 (3) SCC 621

## Text

_Characters 0–39,872 of 79,706. This is a partial read: ask again with offset=39872 for what follows._

354 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
pay them the arrears of salary for the said
period with all other consequential benefits.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.02.2012

BEFORE
THE HON'BLE ASHOK BHUSHAN,J.
THE HON'BLE MRS. SUNITA AGARWAL,J.

Civil Misc. Writ Petition No. 66066 of 2011

Brij Mohan and others ...Petitioners
Versus
State of U.P. Thru Special Secy. and
others

 ...Respondents

Counsel for the Petitioner:
Sri R.K. Awasthi
Sri Pramod Kumar Singh
Sri R.K.Jain

Counsel for the Respondents:
C.S.C.
Sri Suresh Singh
Sri Zafar Naiyar

Land
Acquisition
Act-Section
48-Arepresentation
for
exemption
from
acquisition-rejected-on
ground
possession already taken-prior issuance
of G.O.-before taking possession no
notice given to petitioners-No signature
of
tenure
holders
on
Dakhalnama
memo-found
rejection
on
pertext
acquisition completed before existence
of
Govt.
order-hence
can
not
be
released-not
available-can
not
be
allowed to adopt pick and choose
Policy-order quashed-direction for fresh
consideration issued.

Held: Para 40

In view of the foregoing discussions, it
is clear that the reasons given by the
State Government for rejecting the
claim of the petitioners under Section
48 of the Act for release of their land,
are erroneous. The State Government in
its order dated 11th October, 2011 has
essentially
given
two
reasons
for
rejecting
the
claim.
Firstly
the
possession has been taken on 15th July,
2009 and 27th July, 2009 which land is
in possession of the Authority, hence
the same cannot be released and
secondly
before
issuance
of
the
Government order dated 27th August,
2010 the acquisition of land was already
complete in accordance with law. We
have already held that possession of the
land in dispute was not taken in
accordance with law on 15th July, 2009
and 27th July, 2009 hence the findings
of the State Government that release
cannot be made under Section 48 of the
Act is erroneous. The view of the State
Government
that
acquisition
has
already completed prior to issue of the
Government order dated 27th August,
2010 is also not correct. We have
already repelled
the submission
of
learned counsel for the respondents
that the Government order dated 27th
August, 2010 is not applicable with
regard to acquisition of petitioners'
land. Thus both the reasons given in the
order dated 11th October, 2011 is
unsustainable.
Case law discussed:
2009 ADJ 441; 2009 (1) ADJ 535; 2010 (7)
ADJ 329; 2010 (10) SCC 282; 2011 (11) ADJ
1; A.I.R. 1975 SC 1767; 1996 (4) SCC 212;
(2011) 5 SCC 394; (2011) 7 SCC 639; 2004 (1)
AWC 206; (1988) 1 SCC 50; (2003) 11 SCC
772 (II); 2010 (3) SCC 621

(Delivered by Hon'ble Ashok Bhushan, J.)

1. These four writ petitions have been
filed by the farmers of four villages,
namely, Kansera, Jikarpur, Jahangarh and
Tappal
of
district
Aligarh
claiming
withdrawal
of
acquisition
of
their
agricultural land under Section 48 of the
Land Acquisition Act, 1894.

2. The issues raised in these writ
petitions being common, they have been
1 All Brij Mohan and others V. State of U.P. and others
355
heard together and are being decided by this
common judgment.

3. Pleading in Writ Petition No.66066
of 2011 are complete which is being treated
as leading writ petition. It is sufficient to
refer the facts and pleadings in Writ Petition
No.66066 of 2011 to decide all the four writ
petitions, which are as follows; notification
under Section 4 of the Land Acquisition
Act, 1894 (hereinafter referred to as the
Act) dated 31st March, 2009 proposing
acquisition of an area of 72.5249 hectares of
land was issued. The inquiry under Section
5A of the Act was dispensed with invoking
Sections 17(1) and 17(4) of the Act. The
declaration under Section 6 was issued on
28th May, 2009. The aforesaid acquisition
was challenged in this Court by filing writ
petitions by land owners. The acquisition
was made for Yamuna Expressway running
from NOIDA to Agra and five parcels
located along with the said expressway. The
writ petitions challenging the notifications
dated 31st March, 2009 and 28th May, 2009
in respect of villages, namely, Jahangarh,
Kansera, Jikarpur, Tappal and Kripalpur of
district Aligarh were dismissed along with
batch of writ petitions led by writ petition of
Narendra Road Lines by a Division Bench
of this Court vide judgment and order dated
2nd July, 2010 which is reported in 2010(7)
ADJ 329. Some of the petitioners, who are
the petitioners in these writ petitions, have
also assailed the notifications, which writ
petition was also dismissed i.e. Writ Petition
No.46617 of 2009 decided on 11th August,
2010. The petitioners neither took the
compensation
nor
entered
into
any
agreement as offered by the State and raised
protest regarding acquisition of their land
despite upholding of notifications under
Sections 4 and 6 of the Act. Large number
of farmers including the petitioners raised
their protest against the acquisition and the
amount of compensation offered for the
land. The State Government took a policy
decision on 27th August, 2010 with regard
to five villages of district Aligarh, namely,
Kansera, Jikarpur, Kripalpur, Jahangarh and
Tappal providing for various benefits
including compensation at the rate of
Rs.570/- per square meter on the basis of
the recommendation of the State Level
Committee. The Government order dated
27th August, 2010 was issued on the above
subject by which nine directives were
issued pertaining to acquisition of land of
the aforesaid five villages. One of the
decisions taken by the State Government
was that if any farmer is not ready for the
acquisition of his land at the rate of Rs.570
per square meter, his land be not acquired
without his consent. Petitioners claim that
they are throughout in possession and sown
crops over the land in dispute. Petitioners
submitted representation to the State
Government on 2nd November, 2010
requesting that acquisition for development
of township in Tappal be cancelled and the
name of villagers of the aforesaid five
villages be restored in the revenue records.
A writ petition being Writ Petition
No.40117 of 2011 was filed by Brij Mohan
and others in this Court raising a grievance
that
representation
submitted
by
the
petitioners under Section 48 of the Act
pending before State Government be
directed to be considered and their land be
directed to be released. The said writ
petition was disposed of by a Division
Bench of this Court by order dated 21st
July, 2011 directing the authority concerned
to consider the grievance of the petitioners.
After the order of this Court, notice dated
27th September, 2011 was issued to various
villagers of the aforesaid five villages by the
Special Land Acquisition Officer, Aligarh
and the petitioners were also asked to
appear before the State Government on 30th
356 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
September, 2011. Some of the petitioners
appeared before the State Government on
30th September, 2011 and submitted their
representations. In the representation they
specifically referred to sub-paragraph (2) of
paragraph 1 of the Government order 27th
August, 2010 which provided that the land
of those farmers be not acquired who do not
accept the compensation at the rate of
Rs.570/- per square meter without their
consent. The State Government vide its
order dated 11th October, 2011 rejected the
application under Section 48 of the Act and
refused to release the land. The Writ
Petition No.66066 of 2011 has been filed
challenging the aforesaid decision dated
11th October, 2011, praying for following
relief:-

"(i) Issue an appropriate writ, order or
direction in the nature of certiorari
quashing Order dated 11th October, 2011,
passed by the Under Secretary, Industrial
Development, State of U.P. contained in
Annexure No.9 to the writ petition.

(ii) Issue an appropriate writ, order or
direction in the nature of Mandamus
directing the Respondent Authorities not to
interfere with the actual physical cultivatory
possession of the Petitioners over their
respective lands as mentioned in para 3 of
the writ petition and not to take any
coercive action against the Petitioner for
their dispossession of the land in dispute.
....."

4. Writ Petition No.72604 of 2011 has
been filed by villagers of villages Jikarpur
and Mazra Udaipura Tappal praying for
following relief:-

"(i) Issue a writ, order or direction in
the nature of mandamus commanding the
Respondent
No.1
to
entertain
the
representation of the petitioners on being so
presented and to decide it in the light of the
policy decision of the State dated 27.8.2010
within a reasonable period of time, as may
be fixed by this Hon'ble Court.

(ii) Issue an appropriate, writ order or
direction declaring that after announcement
and
implementation
of
Policy
dated
27.8.2010 (Annex.-1) the land in question
stands denotified under Section 48 of the
Land Acquisition Act. ....."

5. In Writ Petition No.1341 of 2012
(Radha Charan and others vs. State of U.P.
and others), which has been filed by 14
villagers of village Jahangarh challenging
the order dated 29th April, 2011 by which
the representation of the petitioners under
Section 48(1) of the Act was rejected,
following prayers have been made:-

"(i) Issue an appropriate, writ order or
direction declaring that the Policy decision
dated 27.8.2010 (Annexure No.3) amounts
to a decision under section 48 of the Land
Acquisition Act to withdraw the acquisition
proceedings relating to the land in dispute.

(ii) Issue an appropriate writ, order or
direction in the nature of certiorari
quashing Order dated 29th April, 2011
contained in Annexure No.9 to the Writ
Petition.

(iii) Issue an appropriate writ, order
or direction in the nature of Mandamus
directing the respondent Authorities not to
interfere with the actual physical cultivatory
possession of the Petitioners over their
respective lands as mentioned in para 3 of
the writ petition and not to take any
coercive action against the Petitioner for
their dispossession of the land in dispute.
....."
1 All Brij Mohan and others V. State of U.P. and others
357

6. Writ Petition No.2656 of 2012 has
been filed by three petitioners of Mazra
Udaipura Tappal, praying for following
relief:-

"(i) Issue an appropriate writ, order or
direction in the nature of mandamus
commanding the Respondent No.1 to
consider the grievance of the Petitioners
pending before it by way of representation
contained in Annexure No.4 to the writ
petition in the light of the Policy decision of
the State dated 27.8.2010 (Annexure No.1)
and the facts stated in para 26 of the writ
petition within a reasonable period of time
as may be fixed by this Hon'ble Court.

(ii) Issue an appropriate, writ order or
direction declaring that after announcement
and
implementation
of
Policy
dated
27.8.2010 (Annexure No.1) and the facts
stated in para 26 of the writ petition the
land in question stands denotified under
section 48 of the Land Acquisition Act.

(iii) Issue an appropriate writ, order
or direction in the nature of Mandamus
commanding the respondents not to take
any coercive action against the Petitioners
seeking coercive action of dispossession of
the Petitioners from their respective lands
stated in para 2 of the writ petition and the
facts stated in para 26 of the writ petition
without deciding the representation about
fraudulent transaction of the Respondent
Authorities by a reasoned and speaking or
after deciding the representation of the
petitioners (Annexure No.4) by a detailed
and speaking reasoned order.

....."

7. From the facts and relief in the
aforesaid four writ petitions, it is clear that
petitioners have come to this Court praying
that their land, which was included in the
notifications under Sections 4 and 6 of the
Act, be released by the State Government
exercising its jurisdiction under Section 48
of the Act in the light of the Government
order dated 27th August, 2010 by which the
State Government took a policy decision
not to acquire land of those farmers who are
not agreeable to accept the compensation at
the rate of Rs.470/- per square meter.

8. Counter affidavits have been filed
by
the
State
Government,
Yamuna
Expressway
Industrial
Development
Authority as well as Jay Pee Infratech
Limited, which has been impleaded as
respondent No.7 in Writ Petition No.66066
of 2011. In the counter affidavit filed by the
State, it has been stated that the State
Government
took
a
decision
for
construction of Taj Expressway in the year
2001 towards east of Yamuna from NOIDA
to Agra and subsequently Taj Expressway
Authority changed the name as Yamuna
Expressway
Industrial
Development
Authority (hereinafterinafter referred to as
the Authority) by notification dated 11th
July, 2008. The acquisition for expressway
was challenged in this Court which was
dismissed in writ petition of Balbir Singh
and others vs. State of U.P. and others
(reported in 2009 ADJ 441). Another writ
petition challenging the acquisition for
interchange of the expressway was also
dismissed by this Court in Nand Kishore
Gupta and others vs. State of U.P. and
others (reported in 2009(1) ADJ 535) and
by another judgment in Narendra Road
Lines Pvt. Ltd. vs. State of U.P. and others
[reported in 2010(7) ADJ 329] the
acquisition was upheld. The Apex Court
also affirmed the land acquisition by its
judgment in Nand Kishore Gupta and
others vs. State of U.P. and others
358 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
[reported in 2010(10) SCC 282]. Supporting
the order dated 11th October, 2011 passed
by the State Government rejecting the
application under Section 48(1) of the Act,
it has been stated that possession of the land
of Jikargarh was taken on 15th July, 2009
and possession of the land of village
Jahangarh and Tappal was taken on 27th
July, 2009 and the land has vested in the
State and could not be released under
Section 48 of the Act. It is further pleaded
that the Government order dated 27th
August, 2010 shall apply prospectively. It
has been stated that in August, 2010 due to
agitation by some farmers the scheme of
development of the land was proposed to be
closed. It has further been stated that several
villagers have entered into agreement and
taken compensation.

9. The Yamuna Expressway Industrial
Development Authority has also filed a
counter affidavit. In its counter affidavit it
has raised similar pleadings. It has been
stated that acquisition proceedings had been
completed prior to issuance of Government
order dated 27th August, 2010 and
possession of the land was taken and
delivered to the Authority on 15th July,
2009 and 27th July, 2009, hence the
application filed by the petitioners under
Section 48 of the Act has rightly been
rejected. It has further been pleaded that
name of the Authority has also been
recorded in the revenue records. It has
further been pleaded that after obtaining
possession of the land, the land has been
leased to the Concessionaire (M/s Jay Pee
Infratech Limited), hence the petitioners do
not have any right over the land in dispute.

10. A counter affidavit has also been
filed by the J.P. Infratech Limited in the
leading writ petition. The case of J.P.
Infratech Limited (hereinafter referred to as
the Company) is that the project envisaged
construction
of
an
access
controlled
expressway and further development of 25
million square meters of land along with
expressway at five different locations. A
concession agreement dated 7th February,
2003 was executed between the Authority
and Jai Prakash Industries Limited and the
Company was incorporated as special
purpose vehicle under the orders of the
Authority for implementing the project. It is
stated that writ petitions challenging the
project have been dismissed by this Court
including a public interest litigation and the
notifications issued for acquisition of land
were also upheld by this Court as well as
the Apex Court. It is further stated that after
taking possession by the Authority lease
deeds were executed with regard to villages
Tappal, Jahangarh and Jikarpur on 30th
December, 2010 by the Authority. It has
further been pleaded that once the land
stands duly appropriated to the project, the
State Government retains no power to
release the same from the acquisition. The
Authority was transferred the possession on
23rd July, 2009 and 27th July, 2009 and
upon execution of the lease deeds the land
has been transferred to the Company which
is in physical possession and is carrying on
development
on
the
land.
Certain
photographs have also been filed as
Annexure CA-8 to the counter affidavit
showing
boundary
pillars
for
land
development. With regard to Government
order 27th August, 2010 it has been pleaded
that the said Government order can have
only prospective application and the said
Government order has no application in
respect of the land which has already vested
in the acquiring body.

11. Sri Ravi Kiran Jain, learned Senior
Advocate, appearing for the petitioners
challenging the order dated 11th October,
1 All Brij Mohan and others V. State of U.P. and others
359
2011 passed by the State Government
rejecting the application under Section
48(1) of the Act in the leading writ petition,
submits that the said order does not contain
any reason and shows complete non
application of mind. It is submitted that
when the State Government has taken a
decision on 27th August, 2010 for not
acquiring the land of those villagers who do
not agree to compensation at the rate of
Rs.570/- per square meter, the land stood
withdrawn from acquisition under Section
48 of the Act. Sri Jain submits that the order
dated 27th August, 2010 issued by the State
Government has to be treated as an order
withdrawing the land from acquisition
under Section 48 of the Act. The policy
decision dated 27th August, 2010 has been
referred to as a policy decision luring
illiterate farmers to come into the trap and
forego their demand against the acquisition
by accepting illusory offers. It has further
been
submitted
that
possession
of
petitioners' land has never been taken by the
respondents in accordance with law. The
petitioners
still
continue
in
physical
possession of their land and are sowing
crops. Sri Jain further submits that there is
no material brought on the record by the
respondents in the counter affidavit to
indicate that at any point of time physical
possession of the land has been taken.
Referring to possession memo dated 27th
July, 2009 (Annexure-3 to the writ petition),
learned counsel for the petitioners submits
that claiming transfer of possession to the
Authority is not a possession memo which
can be relied since it does not contain
signature of any of the petitioners or any
independent witness and contains only the
signatures of officials of the Authority and
the Special Land Acquisition Officer which
possession memo cannot be accepted to be
a document transferring the possession. Sri
Jain further submits that possession having
never been taken by the respondents, the
findings recorded by the State Government
that possession has been taken, hence
release cannot be made under Section 48 of
the Act, is erroneous and is refusal to
exercise the power under Section 48 of the
Act. It is further submitted by learned
counsel for the petitioners that present is not
a case where matter needs to be remanded
to the State Government again to take a
decision for release under Section 48 of the
Act, rather this Court in these writ petitions
itself may declare that the land stand
released under Section 48 of the Act. It has
further been submitted that the Company,
the concessionaire, has no right before the
State Government under Section 48 of the
Act and the prayer made by the Company
that it should be heard in proceedings under
Section 48 of the Act be not accepted.

12. Sri Zafar Naiyar, learned
Additional Advocate General appearing on
behalf of the State, refuting the submissions
of learned counsel for the petitioners,
contends that the order of the State
Government rejecting the application under
Section 48 of the Act of the petitioners in
leading writ petition is perfectly valid and
justified. It is submitted that possession was
taken of the land in dispute on 15th July,
2009 and 27th July, 2009 which findings
have
been
recorded
by
the
State
Government based on the reports and
materials received from the Authority and
other records and the same need no
interference by this Court in these writ
petitions. It is submitted that possession
having already been taken and the
petitioners having been dispossessed from
the land in dispute, the release of land
cannot be made under Section 48 of the Act.
It is further submitted that name of the
petitioners are not in the revenue records
which fact has even been stated in the
360 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
representation dated 2nd November, 2010
of the petitioners and thus they are not in
possession of the land in dispute. Insofar as
the Government order dated 27th August,
2010 is concerned, the said Government
order does not help the petitioners since the
said Government order has only prospective
application and shall apply to land acquired
subsequent to the said Government order. It
is submitted that since the land acquisition
proceedings with regard to land of the
petitioners have already been finalised, no
benefit can be claimed by the petitioners of
the aforesaid Government order dated 27th
August, 2010. Sri Naiyar further submits
that the State Government having decided
not to release the land, the petitioners
cannot insist that their land be released.

13. Learned counsel for the Authority
has also adopted the arguments of the
learned Additional Advocate General and
submitted that the possession has already
been taken by the Authority whose name is
recorded in the revenue records.

14. Sri Yashwant Varma, learned
counsel appearing for the Company,
submits that lease having already been
executed in favour of the Company after
possession has been taken by the Authority
on 15th July, 2009 and 27th July, 2009, the
State Government does not have any power
or authority to release the land under
Section 48 of the Act. He submits that entire
land covered by the acquisition is a part of
integrated project of six lane access
expressway as well as five land parcels
allocated for development and no part of it
can be released, the project having already
been upheld in various writ petitions by this
Court. It is further submitted by Sri Varma
that no benefit can be taken by the
petitioners of the Government order dated
27th
August,
2010
since
the
said
Government order at best can prospectively
apply and has no application to the land
which was acquired earlier to the said
Government order.

15. Learned counsel for the parties
have referred to and relied on various
judgments of this Court as well as the Apex
Court which shall be referred to while
considering the respective submissions of
learned counsel for the parties in detail.

16.

We
have
considered
the
submissions of learned counsel for the
parties and have perused the record.

17. There is no dispute between the
parties that acquisition of land under the Act
relating to the land in question, has already
been upheld by this Court as well as the
Apex Court and no challenge is raised in
these writ petitions regarding acquisition of
land. The prayer in these writ petitions is
regarding release of the land under Section
48 of the Act. Thus in these writ petitions
only issue to be considered is the claim of
the petitioners for release of their land under
Section 48 of the Act.

18. Section 48 of the Act provides that
Government shall be at liberty to withdraw
from acquisition any land of which
possession has not been taken. Section 48 of
the Act is quoted below:-

"48. Completion of acquisition not
compulsory, but compensation to be
awarded when not completed.- (1) Except
in the case provided for in section 36, the
Government shall be at liberty to withdraw
from the acquisition of any land of which
possession has not been taken.

(2)
Whenever
the
Government
withdraws from any such acquisition, the
1 All Brij Mohan and others V. State of U.P. and others
361
Collector shall determine the amount of
compensation due for the damage suffered
by the owner in consequence of the notice
or of any proceedings there under, and
shall pay such amount to the person
interested,
together
with
all
costs
reasonably incurred by him in the
prosecution of the proceedings under this
Act relating to the said land.

(3) The provision of Part III of this Act
shall apply, so far as may be, to the
determination of the compensation payable
under this section."

19. For exercising the power under
Section 48 of the Act the pre condition is
that possession of the land has not been
taken. In the event possession of the land
has been taken either under Section 16 or
Section 17(1) of the Act, the land vests
absolutely in the Government free from all
encumbrances. Once the land vests in the
Government, the withdrawal cannot be
claimed under Section 48 of the Act either
by the State Government or at the instance
of the land owners. Thus the first issue to be
considered is as to whether possession of
the
land
has
been
taken
by
the
State/Authority or the petitioners continue
to be in possession over the land so as to
claim withdrawal under Section 48 of the
Act.

20. The notification under Section 4
read with Section 17(1) and 17(4) of the Act
with regard to villages Jahangarh, Tappal
and Jikarpur was issued on 31st March,
2009. The declaration under Section 6 of
the Act was issued on 28th May, 2009. The
case of the respondents is that the
possession was taken of the land of
aforesaid villages on 15th and 27th July,
2009. The petitioners have filed copy of the
possession memo dated 15th July, 2009 and
27th July, 2009 as Annexure-3 to the
leading writ petition. A perusal of the
possession memo indicate that the said
possession memo contains the signatures of
the Special Land Acquisition Officer as
well as the officials of the Authority only
and there are no signatures of any
independent witness or any of the land
holders. The question as to how the
possession of agricultural land shall be
taken in the land acquisition proceedings
came for consideration recently before a
Full Bench of this Court in which one of us
(Justice Ashok Bhushan) was also a
member in the case of Gajraj and others vs.
State of U.P. and others reported in
2011(11) ADJ 1. The Full Bench after
referring to and relying on judgments of the
Apex Court in the cases of Balwant
Narayan Bhagde vs. M.D. Bhagwat and
others reported in A.I.R. 1975 SC 1767,
Balmokand
Khatri
Educational
and
Industrial Trust vs. State of Punjab
reported in 1996(4) SCC 212 and Banda
Development Authority, Banda Vs. Moti
Lal Agarwal & Ors, reported in (2011) 5
SCC 394 , while considering similar
possession memo as claimed in the present
case, has held that the aforesaid possession
memo are not the possession memo and
such document cannot be treated to be valid
possession memo/panchnama nor the same
can be treated to be sufficient to constitute
taking of possession. It is useful to refer to
paragraphs 357 to 362 of the said judgment,
which are to the following effect:-

"357.
In
Banda
Development
Authority's case (supra) the Apex court
again
considered
manner
of
taking
possession and after considering earlier
judgment following principle was laid down
in paragraph 37 which is quoted as below:
362 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

37. The principles which can be culled
out from the above noted judgments are:

i) No hard and fast rule can be laid
down as to what act would constitute taking
of possession of the acquired land.

ii) If the acquired land is vacant, the
act of the State authority concerned to go to
the spot and prepare a panchnama will
ordinarily be treated as sufficient to
constitute taking of possession.

iii)If crop is standing on the acquired
land or building/structure exists, mere
going on the spot by the authority
concerned will, by itself, be not sufficient for
taking possession. Ordinarily, in such cases,
the authority concerned will have to give
notice
to
the
occupier
of
the
building/structure or the person who has
cultivated the land and take possession in
the presence of independent witnesses and
get their signatures on the panchnama. Of
course, refusal of the owner of the land or
building/structure may not lead to an
inference that the possession of the acquired
land has not been taken.

iv)If the acquisition is of a large tract
of land, it may not be possible for the
acquiring/designated authority to take
physical possession of each and every
parcel of the land and it will be sufficient
that symbolic possession is taken by
preparing appropriate document in the
presence of independent witnesses and
getting their signatures on such document.

v) If beneficiary of the acquisition is an
agency/instrumentality of the State and 80%
of the total compensation is deposited in
terms of Section 17(3-A) and substantial
portion of the acquired land has been
utilised in furtherance of the particular
public purpose, then the Court may
reasonably presume that possession of the
acquired land has been taken.

358. The last judgment relied by
petitioners is judgment of the apex court in
Prahlad Singh's case. In the said case apex
court held that no evidence was shown by
the respondent to show that possession was
taken in the presence of independent
witness and their signatures were obtained
in the Panchanama. Paras 20 and 22 which
are relevant are quoted below:

"20 If the present case is examined in
the light of the facts which have been
brought on record and the principles laid
down
in
the
judgment
in
Banda
Development Authoritys case it is not
possible to sustain the finding and
conclusion recorded by the High Court that
the acquired land had vested in the State
Government because the actual and
physical possession of the acquired land
always remained with the Appellants and no
evidence has been produced by the
Respondents to show that possession was
taken by preparing a panchnama in the
presence of independent witnesses and their
signatures
were
obtained
on
the
panchnama."

22. Respondent Nos. 3 to 6 have not
placed any document before this Court to
show that actual possession of the acquired
land was taken on the particular date.
Therefore, the High Court was not right in
recording a finding that the acquired land
will be deemed to have vested in the State
Government."

369. In the main writ petition no.37443
of 2011 in the counter affidavit filed by the
State it has been stated that possession of
land was transferred to Greater NOIDA on
1 All Brij Mohan and others V. State of U.P. and others
363
5.9.2008 and 12.1.2009 the relevant
averment regarding delivery of possession
has been made in paragraph 12(e) which is
quoted below:

The Greater
Noida Development
Authority
deposited
70%
of
the
compensation
amount
(10%
of
the
compensation amount had already been
deposited by the Greater Noida Authority
before submitting the proposal for issuance
of Section 4 Notification), as required under
the Land Acquisition Act, before sending the
proposal for issuance of declaration under
Section 6. The proposal was sent to the
State Government vide letter no.144/10
dated 24.06.08 and the State Government
after being satisfied with the proposal
issued declaration under Section 6(1)/17(1)
on 30.06.2008. After the declaration under
Section 6(1)/17(1), notices under Section 9
were issued to the land owners, and after
expiration of fifteen days time as stipulated
in the notices, possession of land was
transferred to Greater Noida Development
Authority on 05.09.2008, for an area of
572.592 hectares, and on 12.01.2009 for an
area of 1.453 hectares. True photocopies of
the possession memo dated 05.09.2008 and
12.01.2009 are being filed herewith and
marked as ANNEXURE NOS. CA-5 AND
CA-6 respectively to this counter affidavit.

360. The possession memos dated
5.9.2008 and 12.1.2009 has been filed as
Annexures 5 and 6 to the counter affidavit
of the State. Both the possession memos
state "the possession of land as detailed
below included in notification as mentioned
above of Village Patwari, Tehsil Dadari is
being
transferred
to
acquiring
department/greater
NOIDA
Industrial
Development authority." (translated in
English)

361. The said memo has been signed
by 5 officials of greater NOIDA authority
and Special Land Acquisition officer
Gautam Budh Nagar. The possession memo
does not contain signatures of any of the
land holders or any witnesses. It is useful to
refer two specific pleadings in writ petitions
regarding possession. In writ petition
no.47502 of 2011 Jugendra and others Vs.
State of U.P. following was stated in
paragraph 6 of the writ petition:

"That, subsequent to the acquisition
proceedings a notice purporting to be a
notice under Section 9 of the Act aforesaid
was also issued and it is said that the
possession of entire land in village
Tusiyana, Pargana and Tehsil Dadri
district Gautam Budh Nagar and being
293.015 Hectare was taken. Photostat copy
of the procession memo as prepared and
shown to have been executed between the
authorities of the State Government and
Greater Noida, is being filed herewith and
is marked as Annexure-5 to this writ
petition. As would appear from a perusal of
possession memo also, none of the
petitioners have signed the aforesaid
possession memo and the possession memo
is only a departmental document not signed
by any of the petitioners. Thus at no point of
time the possession of the land in dispute
has been validly taken from the petitioners.

362. Copy of the possession memo as
claimed by the State dated 2nd February,
2007 was also filed as Annexure 5 to the
writ
petition.
The
possession
memo
Annexure 5 to the writ petition also contains
the statement "details of the land possession
of which is being transferred to acquiring
body/greater
NOIDA
Industrial
Development authority". The said memo
has again been signed by four officers of the
greater NOIDA authority and Additional
364 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
District
Magistrate
Land
Acquisition,
Gautam Budh Nagar. The aforesaid
possession memo are not the possession
memo or the document showing taking of
possession by the State. There is no
occasion to transfer the possession to the
greater NOIDA authority by the State
unless the possession is obtained by the
State. Further more, as held in the judgment
of the apex court as noticed above even if
the land is vacant the State authority has to
go to the spot and prepare a Panchanama
which ordinarily be treated as sufficient to
constitute
taking
of
possession.
The
possession memo filed by the State in the
counter affidavit can not be termed to be a
Panchanama since signatures of any Panch
(independent witness) are absent. Thus the
taking of possession by the respondent can
not be said to be in accordance with the
law. Thus we find substance in the
submission of the learned counsel for the
petitioners that possession was not taken by
the State authorities of land in accordance
with law and possession memo which has
been filed by the State authorities can not be
treated to be valid possession memo
evidencing taking of possession."

21. Although the State Government as
well as the Authority in their counter
affidavits
have
mentioned
taking
of
possession on 15th July, 2009 and 27th
July, 2009 but they have not referred to any
other
materials
claiming
taking
of
possession of the land except possession
memo filed as Annexure-3 to the leading
writ petition. The petitioners in the writ
petitions have categorically pleaded that
they are in actual physical possession and
possession was never taken by any of the
respondents. In the order impugned in
leading writ petition, the State Government
has referred to the reports received from
Special Land Acquisition Officer, Aligarh
stating that possession of the land of village
Jikargarh was taken on 15th July, 2009 and
possession of the land of the villages
Jahangarh and Tappal was taken on 27th
July, 2009. The State Government has,
without referring to any material or giving
any reason, jumped on the conclusion that
the land was transferred to the Authority on
15th July, 2009 and 27th July, 2009
respectively and the same is in possession
of the Authority. As stated above, the
possession of the land as alleged by the
respondents having not been taken in
accordance with law as declared by the
Apex Court in aforementioned cases, it
cannot be held that the possession of land
has been taken by the respondents. The
view of the State Government in its order
dated 11th October, 2011 (Annexure-9 to
the leading writ petition) and similarly in
the order dated 29th April, 2011 which is
challenged in Writ Petition No. 1341 of
2012 cannot be accepted.

22. The submission of the learned
counsel for the respondents is that the fact
that petitioners are not in possession of the
land in dispute is clear from the petitioners'
representation dated 2nd November, 2010
(Annexure-5 to the leading writ petition)
wherein they have prayed that their names
be got recorded in the revenue records. A
perusal of the representation dated 2nd
November, 2010 (Annexure-5 to the
leading writ petition) does not indicate that
petitioners at any point of time admitted that
they are not in possession of the land in
dispute. The petitioners have rather prayed
that the declaration of the State Government
dated 27th August, 2010 for cancelling the
township be implemented and the name of
the farmers be recorded in the revenue
records. The fact that in the revenue records
the name of the Authority has been recorded
does not conclusively prove that the
1 All Brij Mohan and others V. State of U.P. and others
365
Authority is in actual physical possession of
the land in dispute. The Apex Court in the
case of State of Madhya Pradesh vs.
Narmada Bachao Andolan and another
reported in (2011)7 SCC 639, had occasion
to consider the consequence of entries in
revenue
records
regarding
physical
possession. Following was laid down by the
Apex Court in paragraph 152, which is as
under:-

"152. In view of the above, it becomes
crystal clear that none of the tenure holders,
so far the land in dispute is concerned, has
been evicted/dispossessed. All the tenure
holders are enjoying the said land without
any interference. The tall claims made by
the respondents before the High Court were
totally false. The High Court was not
justified in entertaining their applications in
this regard, without verifying the factual
aspects. In such a fact-situation, as the
actual physical possession has not yet been
taken by the authorities and the entries in
the revenue records etc. are not the
conclusive proof, therefore, the State
Government is competent to exercise its
power under Section 48 of the Act 1894.
However, it will be subject to the decision
on another relevant issue regarding
submergence of the land in dispute
permanently or temporarily which is to be
considered hereinafter."

23. We thus hold that possession
having not been taken by the respondents in
accordance with law, the claim of the
petitioners under Section 48 of the Act
cannot be rejected on the ground that
possession has been taken by the Authority.

24.