# M/S Oriental Structural Engineers Pvt. Ltd v. State of U.P. & Anr

- **Citation:** (2024) 12 ILRA 698
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-12-19
- **Case number:** Writ -C No. 22622 of 2021
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-oriental-structural-engineers-pvt-ltd-v-state-of-u-p-anr-51326
- **Pages:** 16

## Headnote

A. Acquisition Law - Land Acquisition Act,
1894 - Sections 4 & 17 - Allotment of land
-
Though
possession
certificate
was
issued
by
the
Authority,
but
actual
possession of land was continued with the
original landowner/farmers due to interim
protection granted by Supreme Court,
which was operative till 14.05.2015 -
Lessee claimed the benefit of the zero
period policy disputing the handing over
of the possession -Benefit of the zero
period policy was also given for some
period - Effect - Notice of cancellation of
allotment was sent and penal interest and
penalties was levied - Validity challenged
- Held, the St. Government never obtained
the physical possession of the land and
consequently the GNIDA could not have
given the physical possession of land -
From
the
fact
that
the
petitioner
attempted to initiate construction, that
too of the boundary wall, it cannot be said
that it had actual physical possession of
the entire plot - Execution of possession
certificate issued to the petitioner does
not amount to handing over of the actual
physical possession of the plot - High
Court set aside the demand raised against
the petitioner with direction to hand over
the physical possession of the allotted
land to the petitioner forthwith. (Para 31,
42, 43, 47, 50 & 51)
12 All. M/S Oriental Structural Engineers Pvt. Ltd. Vs. State of U.P. & Anr.
699
Writ petition allowed. (E-1)

List of Cases cited:

## Text

_Characters 0–39,871 of 50,975. This is a partial read: ask again with offset=39871 for what follows._

698 INDIAN LAW REPORTS ALLAHABAD SERIES
p. the essence of a decision
is
its
ratio
and
not
every
observation found therein nor what
logically follows from the various
observations made in the judgment.
Every judgment must be read as
applicable to the particular facts
proved, or assumed to be proved,
since
the
generality
of
the
expressions which may be found
there
is
not
intended
to
be
exposition of the whole law, but
governed and qualified by the
particular facts of the case in which
such expressions are to be found;

q. the ratio of a decision
has to be understood regard being
had to its context and factual
exposition. In order to understand
and appreciate the binding force of
a decision it is always necessary to
see what were the facts in the case
in which the decision was given
and what was the point which had
to be decided. No judgment can be
read as if it is a statute.

107. In view of the aforesaid
discussion, we hold that the order of
Resumption of land dated 21.02.2013, has
been made in accordance with the power
given under section 117(6) of the Act. We
do not find any ground in the writ petitions
to quash the order of resumption dated
21.02.2013. In view of the foregoing
discussion, all the four writ petitions
deserve to be dismissed. In the result, all
the four writ petitions are dismissed.
----------
(2024) 12 ILRA 698
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.12.2024

BEFORE
THE HON'BLE ALOK MATHUR, J.

Writ -C No. 22622 of 2021

M/S Oriental Structural Engineers Pvt.
Ltd. ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Abhishek Khare, Akber Ahmad, Amrendra Nath
Tripathi, Avdhesh Kumar Pandey, Chinmay
Mishra, Gaurav Mehrotra, Rani Singh, Saumya,
Sudeep Kumar, Tushar Mittal, Yogeshwar Sharan
Srivastava

Counsel for the Respondents:
C.S.C., Prashant Kumar, Sachin Upadhyay,
Waseeq Uddin Ahmed

A. Acquisition Law - Land Acquisition Act,
1894 - Sections 4 & 17 - Allotment of land
-
Though
possession
certificate
was
issued
by
the
Authority,
but
actual
possession of land was continued with the
original landowner/farmers due to interim
protection granted by Supreme Court,
which was operative till 14.05.2015 -
Lessee claimed the benefit of the zero
period policy disputing the handing over
of the possession -Benefit of the zero
period policy was also given for some
period - Effect - Notice of cancellation of
allotment was sent and penal interest and
penalties was levied - Validity challenged
- Held, the St. Government never obtained
the physical possession of the land and
consequently the GNIDA could not have
given the physical possession of land -
From
the
fact
that
the
petitioner
attempted to initiate construction, that
too of the boundary wall, it cannot be said
that it had actual physical possession of
the entire plot - Execution of possession
certificate issued to the petitioner does
not amount to handing over of the actual
physical possession of the plot - High
Court set aside the demand raised against
the petitioner with direction to hand over
the physical possession of the allotted
land to the petitioner forthwith. (Para 31,
42, 43, 47, 50 & 51)
12 All. M/S Oriental Structural Engineers Pvt. Ltd. Vs. State of U.P. & Anr.
699
Writ petition allowed. (E-1)

List of Cases cited:

1. Indore Development Authority Vs Manoharlal;
2020 (8) SCC 129

2. Gajraj & ors. Vs St. of U.P. & ors.; 2011
SCCOnline 1711

3. Savitri Devi Vs St. of U.P.; 2015 (7) SCC 21

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri Nitesh Jain, learned
counsel for the petitioner as well as learned
Standing counsel and Sri Sachin Upadhyay
for the respondents.

2. The Petitioner who had been
allotted a plot from the Greater Noida
Industrial
Development
Authority
(hereinafter referred to as GNIDA) has
disputed the handing over of the possession
of the said plot and has claimed benefit of
the zero period policy of the respondents.
The respondents on the other hand have
rejected his claim of possession and
proceeded to levy penalty and notice for
cancellation of the allotment of the plot,
and even the revision preferred before the
State Government has been rejected leading
to the present writ petition.

3. It has been submitted by learned
counsel
for
the
petitioner
that
on
12/03/2008 and 30/06/2008 notifications
under section 4 read with section 17 of the
Land Acquisition Act, 1894 were issued by
the State Government for acquisition of
land of 589.188 Ha. situated at village
Patwari, Greater Noida, Gautam Budh
Nagar. Subsequent to the acquisition, the
land was developed and offered for
allotment of institutional plots for setting
up educational hub, University, Training
centers, Schools, Hospitals and office plots
for self-use of various sizes. The petitioner
made an application on 30/05/2008 for
allotment of a plot of 20,000 m2 for the
purpose of setting up an office for self-use
and deposited 10% of the application
amount. The application of the petitioner
was successful, and he was informed that
he has been allotted a plot of 20,000 m2 for
a total premium of ₹ 15.80 Crores.
Considering that the petitioner has already
paid 10% of the sale consideration, he was
required to pay the 20% of the amount
within 60 days of the allotment letter, and
the balance 70% of the premium was to be
paid in 12 half yearly installments with an
interest of 12% from 12/07/2009 onwards.

4. According to the terms and
conditions of the allotment, the petitioner
was required to complete the construction
over the plot within 5 years from the date
of the allotment. Though by means of the
letter of allotment 20,000 m2 of space was
allotted to the petitioner, but the plot
number was never communicated, but he
proceeded to deposit further 20% of the
premium. It is only on 13/11/2009 that the
GNIDA informed the petitioner that the
plot of an area 20,007.52 m2 has been
allotted at plot No. 3, Techzone IV, Greater
Noida, and that he was to complete the
formalities to get the lease deed registered.
On 16/03/2010 a lease deed was executed
in favour of the petitioner and a formal
letter of possession was also issued by the
GNIDA on the same day.

5. It has been submitted that plot
No. 3 Techzone IV Greater Noida was
carved out from khasras nos. 321, 323, 324,
325, 342, 343, 344, 340, 331 village
Patwari,
District
Buddhnagar.
The
petitioner stated that despite possession
certificates having been issued in favour of
the
petitioner,
the
actual
physical
700 INDIAN LAW REPORTS ALLAHABAD SERIES
possession of the said plot was never given
to him, and therefore the petitioner made
repeated representations to the respondents
to hand over the actual physical possession.

6. It is stated that on 15/06/2010,
the Manager Institutional wrote a letter to
the Officer on Special Duty (Project,
Greater Noida) to nominate some officer to
hand over actual physical possession.
According to the petitioner, the letter dated
15/06/2010 evidences the fact that actual
physical possession was never given to the
petitioner, and even subsequently a number
of letters and representations by the
petitioner did not yield the result.

7. It is stated that by means of
letter dated 02/06/2011, the petitioner was
informed that the revised lease plan has
been received by the respondents according
to which the total area of the plot of the
petitioner has been reduced from 20,007.52
m2 to 20,000.76 m2 and accordingly a
correction
deed
was
executed
on
24/06/2011. Simultaneously a corrected
possession certificate was also signed and
delivered to the petitioner without handing
over actual physical possession.

8. It is the case of the petitioner
that even after execution of the correction
deed,
he
repeatedly
requested
the
respondents to hand over the actual
physical possession of the plot, but the
same was not done, and when the petitioner
attempted to construct a boundary wall of
the plot the local farmers prevented him
from undertaking any construction, and this
fact was also informed to the respondents
as well as the District Administration and
the police officials.

9. According to the petitioner, he
has deposited the outstanding amount
totaling Rs. 18.85 Crores against the total
premium of ₹ 15.8 crores till 31/03/2013.
The
petitioner
was
also
given
a
default/cancellation notice on 02/05/2017
asking him to deposit an amount of ₹
6,81,22,500.47 within 15 days failing
which, the lease would be deemed
cancelled and the possession of the land
would be resumed by GNIDA. The
petitioner submitted a detailed reply to the
said notice on 10/05/2017 once again
narrating the entire sequence of events, and
also emphatically stating that the actual
possession of the property had never been
given to the petitioner. A query was made
by the petitioner under the Right to
Information Act in this regard, but no
information was supplied to him with
regard to handing over the possession.

10. It is in the aforesaid
circumstances that a request was made to
defer all the future instalments and interest
thereon and also to reverse all the interest
levied on the plot. In sum and substance,
the benefit of Zero Period Policy was
claimed by the petitioners along with the
actual physical possession of the allotted
plot. When the grievance of the petitioner
was not redressed despite writing numerous
representations to GNIDA, the petitioner
preferred a writ petition being writ petition
No. 57227 of 2013 seeking a direction to
the respondents to reckon the payable dues
from the date of actual physical possession
rather than the date of execution of the
lease deed and further not to realise the
lease rent and interest from the petitioner
and also grant the moratorium from
payment of interest till actual physical
possession is granted to the petitioner. It
was during the pendency of the writ
petition the GNIDA responded to the
representations
of
the
petitioners
on
14/09/2018 informing them that no action
12 All. M/S Oriental Structural Engineers Pvt. Ltd. Vs. State of U.P. & Anr.
701
can be taken by them in light of the
pending writ petition.

11. The petitioner thereafter
preferred a revision under Section 41(3) of
the U.P Urban Planning and Development
Act, 1973 read with Section 12 of the U.P
Industrial Area Development Act, 1976, on
29/04/2019 and during pendency of the
aforesaid revision a fresh demand for
additional compensation was made by
GNIDA through letter dated 24/09/2019
and 15/10/2019.

13. The petitioner had preferred
two appeals before the respondent no.1, the
first appeal was dated 29/04/2019 made to
the State Government with the following
prayer:-

"Without prejudice to our
rights in the writ petition mention
above,
we
put
forward
our
representation for refund of the
entire amount deposited by us in
shape
of
reservation
money,
allottment money, premium, lease
rent, interest, location charges etc.
along with interest at the rate of
15% per annum from the date of its
deposit along with the losses made
by us explained in para 14 above,
which comes to INR 114 crores."

14. Another appeal/revision was
preferred on 15/10/2019 to the State
Government for the following reliefs:-

" In view of the above, you
are requested to withdraw your
demand made vide your above
referred letter dated 24/09/2019
being illegal, contempt of court
proceedings as subject matter is
sub-judice before court. Moreover,
our request for refund of entire
amount deposited with GNIDA
along with 18% interest is pending
with
GNIDA.
Under
the
circumstances, you are requested to
keep a demand made through letter
dated 24/09/2019 in abeyance till
the writ petition is subjudice before
the court or till actual peaceful and
physical handing over of the
subject plot."

15. Both the revisions/appeals of
the petitioners were decided by the
common order dated 27/10/2020 whereby
the State Government defenestrated the
prayer made by the petitioner. A perusal of
the impugned order would indicate that
determination was only regarding the issue
of giving possession of the plot allotted to
the petitioner. The petitioner repeatedly
stated that he had never been given
possession and had given only a symbolic
possession by letter dated 16/03/2010 and
actual physical possession was never
handed over to him. The State Government
while rejecting the appeal was of the view
that the petitioner himself has admitted that
he had started construction of the boundary
wall which itself was an admission with
regard to possession, and accordingly the
delay
if
any
in
commencing
the
construction work was of the petitioner
himself and hence he was not entitled for
any relief and both the appeals were
rejected.

16. Assailing the aforesaid order
dated 27/10/2020 the present writ petition
was filed with the following reliefs:-

i) Issue a writ, order or
direction in the nature of Certiorari
quashing the impugned order dated
27.10.2020,
passed
by
the
702 INDIAN LAW REPORTS ALLAHABAD SERIES
Respondent No.1 (Annexure No.1),
and direct the Respondent No.1 for
fresh consideration.
ii) Issue a writ, order or
direction in the nature of Certiorari
quashing
the
demand
dated
24.09.2019
as
contained
in
Annexure No.2 with this writ
petition.
(iii) Issue a writ, order or
direction in the nature of Certiorari
quashing
the
notice
dated
04.03.2020
as
contained
in
Annexure No.3 with this writ
petition.
(iv) Issue a writ order or
direction
in
the
nature
of
Mandamus
directing
the
Respondent Authority to grant the
benefit of "Zero Period" in terms
of the office order dated 04.01.2017
for
the
period
when
no
development could be undertaken
on account of the orders of status
quo passed by the Hon'ble Court
on the parcel of land leased to the
petitioner.
v) Issue a writ, order or
direction
in
the
nature
of
Mandamus
directing
the
Respondents
not
to
take
any
coercive
action
against
the
petitioner for realization of the
disputed outstanding lease rent,
lease
premium,
interest
or
cancellation of the lease deed dated
22.12.2009.

vi) Issue a writ order or
direction
in
the
nature
of
Mandamus
directing
the
Respondent Authority to reschedule
the installments, lease rent, penal
interest,
if
any,
etc.
after
accounting for the benefit of "Zero
period"
admissible
to
the
Petitioner. ..."

17. During pendency of the writ
petition a fresh demand was raised by order
dated 17/01/2023 issued by the GNIDA
wherein it was stated that failure to deposit
the
said
amount
would
result
in
cancellation of the leased plot, and
therefore the following prayer added in the
writ petition:-

"(III.a) Issue a suitable
writ, order or direction in nature of
certiorari, quashing the demand
letter
no.
Gr.No./Sansthagat
2023/232 dated 17/01/2023 issued
by
Officer
on
Special
Duty
(Institutional), GNIDA, (enclosed
as Annexure no. 39 to the petition).
(III.b) Issue a suitable writ,
order or direction in nature of
prohibition,
restraining
or
prohibiting the respondents, their
servants and agents in proceedings
in any manner whatsoever pursuant
to the demand letter number Gr/
Sansthagat
2023/232
dated
17/01/2023 issued by Officer on
Special
Duty
(Institutional),
GNIDA, (enclosed as Annexure
no.39 to the petition).
(III.c) issue a suitable writ,
order or direction in nature of
mandamus
commanding
the
respondents
to
refund
Rs.
1,61,71,657/- by GNIDA along with
a compound interest @15% per
annum to be calculated from the
last date of payment i.e 21/03/2013
till the date of actual payment."

18. Respondents have opposed the
writ petition and filed a counter affidavit
stating that the petitioners themselves have
12 All. M/S Oriental Structural Engineers Pvt. Ltd. Vs. State of U.P. & Anr.
703
conceded that the possession of the plot is
with them when they lodged complaint to
the
police
station
Bishrek
Gautam
Buddhnagar on 13/03/2013 seeking police
protection
for
continuing
with
the
construction. It has further been stated that
the benefit of Zero Period has already been
given to all the developers including the
petitioner during the pendency of the case
from 21/10/2011 to 24/08/2012, and further
asserted that the petitioner had the physical
possession of the plot since 2011 and
accordingly it is liable to pay penal interest.

19. A detailed counter affidavit
was subsequently filed reiterating the stand
disclosed in the short counter affidavit but
did not comment on paragraph No. 51 to 62
of the writ petition where the petitioner has
asserted that there were interim orders
passed by the High Court and the Supreme
Court according to which the possession of
the disputed land of the farmers could not
have been interfered with, by the State
Government as well as by GNIDA.

20. I have heard the counsel for the
parties and perused the record.

21. The controversy in the present
case centers around the fact as to whether
the "actual physical possession" of the
disputed plot was handed over to the
petitioner or not, and whether merely by
issuance of possession certificate dated
24/06/2011, it would be sufficient to
conclude that the said plot is physically
vested with the petitioner. In the present
case the petitioner was allotted a plot No. 3
Techzone IV Greater Noida was carved out
from khasras nos. 321, 323, 324, 325, 342,
343, 344, 340, 331 village Patwari, District
Buddhnagar by the GNIDA. A lease deed
was executed in favour of the petitioner on
16/03/2010. The possession of the said plot
was not given to the petitioner, who wrote
several letters requesting GNIDA to hand
over the possession, and the possession
certificate was given to the petitioner on
24/06/2011. The respondents Stated that by
handing over of the possession certificate
they have handed over the possession of the
plot to the petitioner, while the petitioner
contends that the petitioner was never
handed over to them. The petitioner tried to
take the physical possession of the property
himself and build a boundary wall, but he
was stopped by the villagers on 25/01/2012
and 13/03/2013, and he duly intimated this
fact to the respondents as well as the police.
The contention of GNIDA is that they have
handed over the possession of the plot to
the petitioner, and he is thereafter under a
mandate to pay the premiums, lease rent
and interest on delayed payment and
penalty, while the petitioner has been
contending that in absence of handing over
of the physical possession of the property
he would not be liable to pay the aforesaid,
and also relies upon the Zero period policy
of the GNIDA which provides that in case
the physical possession cannot be handed
over to the allottee then GNIDA will not
charge interest penalty and also defer the
instalments which are due for such period
till the property is actually handed over to
the lessee.

22.
 The
manner
of
taking
possession of land which has been
subjected to acquisition proceedings under
the Land Acquisition Act, 1894 have been
dealt by the Supreme Court extensively in
the case of Indore Development Authority
v. Manoharlal, 2020 (8) SCC 129 where it
was observed:-

261. Now, the Court would
examine
the
mode
of
taking
possession under the 1894 Act as
704 INDIAN LAW REPORTS ALLAHABAD SERIES
laid down by this Court. In Balwant
Narayan
Bhagde
[Balwant
Narayan Bhagde v. M.D. Bhagwat,
(1976) 1 SCC 700] it was observed
that the act of Tahsildar in going on
the spot and inspecting the land
was sufficient to constitute taking
of possession. Thereafter, it would
not be open to the Government or
the Commission to withdraw from
the acquisition under Section 48(1)
of the Act. It was held thus : (SCC
pp. 711-12, para 28) "28. We agree
with the conclusion reached by our
Brother Untwalia, J., as also with
the
reasoning
on
which
the
conclusion is based. But we are
writing a separate judgment as we
feel that the discussion in the
judgment of our learned Brother
Untwalia, J., in regard to delivery
of "symbolical" and "actual"
possession under Rules 35, 36, 95
and 96 of Order 21 of the Code of
Civil Procedure, is not necessary
for the disposal of the present
appeals and we do not wish to
subscribe to what has been said by
our learned Brother Untwalia, J.,
in that connection, nor do we wish
to express our assent with the
discussion
of
the
various
authorities made by him in his
judgment. 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. There can be no hardand-fast rule laying down what act
would be sufficient to constitute
taking of possession of land. We
should not, therefore, be taken as
laying down an absolute and
inviolable rule that merely going on
the spot and making a declaration
by beat of drum or otherwise would
be sufficient to constitute taking of
possession of land in every case.
But here, in our opinion, since the
land was lying fallow and there
was no crop on it at the material
time, the act of the Tahsildar in
going on the spot and inspecting
the land for the purpose of
determining what part was waste
and arable and should, therefore,
be
taken
possession
of
and
determining
its
extent,
was
sufficient to constitute taking of
possession. It appears that the
appellant was not present when this
was done by the Tahsildar, but the
presence of the owner or the
occupant of the land is not
necessary to effectuate the taking of
possession. It is also not strictly
necessary as a matter of legal
requirement that notice should be
given to the owner or the occupant
of the land that possession would
be taken at a particular time,
though it may be desirable where
12 All. M/S Oriental Structural Engineers Pvt. Ltd. Vs. State of U.P. & Anr.
705
possible, to give such notice before
possession
is
taken
by
the
authorities, as that would eliminate
the possibility of any fraudulent or
collusive transaction of taking of
mere paper possession, without the
occupant or the owner ever coming
to know of it."
262.
In
T.N.
Housing
Board v. A. Viswam [T.N. Housing
Board v. A. Viswam, (1996) 8 SCC
259] it was held that drawing of
panchnama in the presence of
witnesses would constitute a mode
of taking possession. This Court
observed : (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 cooperate in taking
possession of the land." (emphasis
supplied)
263.
In
Banda
Development Authority [Banda
Development Authority v. Moti Lal
Agarwal, (2011) 5 SCC 394 :
(2011) 2 SCC (Civ) 747] this Court
held that preparing a panchnama is
sufficient to take possession. This
Court has laid down thus : (SCC p.
411, para 37) "37. The principles
which can be culled out from the
abovenoted 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
706 INDIAN LAW REPORTS ALLAHABAD SERIES
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."
264. In State of T.N. v.
Mahalakshmi Ammal [State of
T.N. v. Mahalakshmi Ammal,
(1996) 7 SCC 269] , this Court
dealt with the effect of vesting on
possession and mode of taking it
and opined thus : (SCC p. 272,
para 9) "9. It is well-settled law
that publication of the declaration
under
Section
6
gives
conclusiveness to public purpose.
Award was made on 26-9-1986 and
for Survey No. 2/11 award was
made on 31-8-1990. Possession
having already been undertaken on
24-11-1981, it stands vested in the
State under Section 16 of the Act
free from all encumbrances and
thereby the Government acquired
absolute title to the land. The initial
award having been made within
two years under Section 11 of the
Act, the fact that subsequent award
was made on 31-8-1990 does not
render the initial award invalid. It
is also to be seen that there is stay
of dispossession. Once there is stay
of
dispossession,
all
further
proceedings necessarily could not
be proceeded with as laid down by
this Court. Therefore, the limitation
also
does
not
stand
as
an
impediment as provided in the
proviso to Section 11-A of the Act.
Equally, even if there is an
irregularity in service of notice
under Sections 9 and 10, it would
be a curable irregularity and on
account thereof, award made under
Section 11 does not become invalid.
Award is 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."

23. A perusal of the aforesaid
judgments of the Supreme Court would
clearly demonstrate that 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.

24. An important aspect of the
present case is the litigation between the
farmers/landowners who had challenged
the land acquisition proceedings before the
High Court. Plot No. 3 Techzone IV
Greater Noida which was allotted to the
petitioner was carved out from khasras nos.
321, 323, 324, 325, 342, 343, 344, 340, 331
village Patwari, District Buddhnagar. The
challenge was made to the notification
under section 4 of the Act of 1894 dated
12/03/2008 and notification under Section
6/17 dated 30/06/2008. A bunch of writ
petitions were filed challenging the land
acquisition proceedings, and the land of
12 All. M/S Oriental Structural Engineers Pvt. Ltd. Vs. State of U.P. & Anr.
707
village Patwari in writ petition No. 17068
of 2009 Writ C. All the petitions were
allowed by means of judgement dated
19/07/2011 and the land Acquisition
proceedings were quashed. In the said
judgement it has been clearly mentioned
that interim orders were passed to
maintain status quo during the pendency
of the petition.

25. The matter was subsequently
placed before a full bench in the case of
Gajraj and Others Vs State of U.P. and
Others reported in 2011 SCCOnline 1711.
The full bench had specifically formulated
an issue pertaining to taking of possession
of the acquired land by the State of U.P
which is as follows:-

"8. Taking of possession:
One of the submissions which has
been
pressed
by
petitioners'
counsel in all the writ petitions is
that no possession of the plots in
question have been taken by the
Collector on the spot. It is
submitted
that
possession
as
contemplated under Section 17, sub
Section 1 has to be actual physical
possession. It is submitted that the
District Revenue Authorities as
well as NOIDA authority/greater
NOIDA authorities have never
taken physical possession of land in
dispute and the possession memo
has been prepared without coming
on the spot and there are neither
signatures of land holders nor there
are signatures of any independent
witnesses in the possession memo."

26.

Considering
the
rival
submissions of the petitioner as well as the
respondents full bench concluded by
holding that taking of possession by the
respondents cannot be said to be in
accordance with law and further observed
that the possession was not taken by the
State authorities of the land in accordance
with law and the possession memo which
has been filed by the State authorities
cannot be treated to be valid possession
memo evidencing taking of possession. The
relevant findings are quoted hereinbelow:-

"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
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."

27. Furthermore, as held by 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 has to be treated as
sufficient to constitute taking of possession.
The possession memo filed by the State in
the counter affidavit cannot be termed to be
a Panchanama as signatures of Panch
708 INDIAN LAW REPORTS ALLAHABAD SERIES
(independent witness) are absent. Thus, the
taking of possession by the respondent
cannot be said to be in accordance with the
law.

28. We find merit 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 cannot be
treated to be valid possession memo
evidencing taking of possession.

29. The full Bench of the High Court
while deciding the writ petitions had
categorised the cases into groups and Group 1
cases pertain to village Patwari. In its
judgement
dated
21/10/2011
it
in
unequivocally terms returned a finding that the
State Government had not taking possession
of the said land pursuant to the acquisition
proceedings and the possession of the land
continued to be with the farmers/landowners.
Against the judgement of the full bench
special leave petitions were filed before the
Hon'ble Supreme Court where also interim
protection was granted restraining the State
Government from forcefully dispossessing the
landowners/farmers.

30. The Supreme Court while
deciding the bunch of cases in the matter of
Savitri Devi vs State of U.P 2015 (7) SCC 21
on 14/05/2015 where in paragraph No. 44 of
the said judgement it has been observed that
many residents of Patwari village had entered
into the agreement with the authorities
agreeing to accept enhanced compensation at
the rate of 64.7%, and the special leave
petitions filed by the authority were dismissed.

31. Considering the findings of the
writ petition that interim orders were
passed in all the cases at the very initial
stage, and subsequently the finding of the
full bench that the possession of the land
continued
to
be
with
the
landowners/farmers,
and
subsequently
interim protection was granted by the
Supreme Court, it is clear that the State
Government never obtained the physical
possession of the land and consequently the
GNIDA could not have given the physical
possession of land till 14/05/2015.

32. It is against the backdrop of the
aforesaid facts that the issue to be
considered is as to whether actual physical
possession of the land was given to the
petitioner or not? The GNIDA considering
the fact that there were farmers agitations
and litigations were pending, pursuant to
the land acquired by the State Government,
which was handed over to the GNIDA for
development, a policy was framed to grant
benefit to the allottees and developers who
are being given land by the GNIDA.

33. The board of GNIDA in its
103rd board meeting held on 14/12/2015
considered and passed a policy known as
the Zero period Policy decided that in case
certain situations were found to be existing
then they will declare that period to be a
Zero period during the said period the
premium and interest would be deferred, no
penalty interest would be charged in
installments would be adequately shifted
ahead. The said policy was issued on
28/03/2016. The pre- conditions for grant
of the zero policy benefit were:-

1. In the authority has been
unable to hand over the physical
possession of the plot for any
reason.
2. If due to breach of public
order due to which the possession
cannot be handed over or there is
12 All. M/S Oriental Structural Engineers Pvt. Ltd. Vs. State of U.P. & Anr.
709
encroachment over the allotted land
due to which the development is
not possible on the land;
3. In case there is a stay
order passed by any court due to
which the allotment, execution of
lease deed or possession has been
Stated
due
to
which
the
construction work cannot be carried
on,
4. In case any order has
been
passed
by
the
State
Government or GNIDA due to
which the lease deed could not be
entered into; Then subject to the
determination of the aforesaid
conditions, during the zero period
the interest which falls due for
payment during the said period
would be shifted till the end of the
Zero period, and no penal interest
would be charged.

34. In the 103rd board meeting, the
matter specially pertaining to Ecoteck 11
was deliberated and it was determined that
the physical possession of the plot could
not be handed over to the developer and
therefore they were given the benefit of the
zero period policy from 01/04/2011 to
21/03/2016.
The
similar
policy
was
reiterated by the board of GNIDA in its
107th board meeting held on 24/12/2016
and notified by order dated 04/01/2017,
where it stated that the standing committee
would consider and recommend the case
for grant of zero period to the Chief
Executive Officer of GNIDA, which would
take final decision in the matter.

35. The GNIDA in its counter
affidavit filed on 08/08/2023 in paragraph
13 have Stated that the petitioner has been
given the benefit of zero period during
pendency of the litigation before the High
Court from 21/10/2011 to 24/08/2012. No
reason has been given for limiting the
benefit of zero period only for the period
21/10/2011
to
24/08/2012
and
not
extending it till actual physical position has
been handed over has been stated.

36. In the impugned order the only
issue which has been dealt with by the
State Government is with regard to the
handing over of the possession of the plot
after execution of the lease deed to the
petitioner.

37. Analysing the aforesaid facts, it
is seen that writ petitions challenging the
land acquisition in village Patwari were
filed between 2008-09 and in all the writ
petitions interim orders were passed to
maintain status quo, and the full bench has
categorically held that the possession land
including the land situated village Patwari
was never taken by the State Government.
During the pendency of proceedings before
the Supreme Court interim protection was
given in favour of the existing landowners
and against the GNIDA and the State
Government.
Despite
the
orders
of
maintenance of status quo having been
passed by the High Court in the case of
Har Karan Singh vs State of U.P writ
petition no. 17068 of 2009 regarding the
land situated in village Patwari, the GNIDA
proceeded to allot the land in favour of
private developers and the possession
certificates
were
also
issued.
The
certificates were signed only by the officers
of the GNIDA without there being any
independent witness or drawing up a
panchnama evidencing that the actual
possession of the plot has been handed over
to the petitioner.

38. The GNIDA in an order passed
on 09/06/2013 have stated that in the 92nd
710 INDIAN LAW REPORTS ALLAHABAD SERIES
Board meeting had considered the aspect of
granting the benefit of Zero period for the
land acquired in village Shahberi and
Patwari as there were some orders of the
High Court and consequently decided to
grant the benefit of Zero period From
21/10/2011 to 24/08/2012. From the order
dated 09/06/2013 it is clear that the GNIDA
was fully aware of the interim orders
passed by the High Court and subsequently
by the Supreme Court and for which reason
possession could not have been given to the
allottees, which was duly considered in the
92nd board meeting and the benefit of zero
period was granted.

39. Further, it is noticed that the
letter was got signed from the petitioner
which was titled as possession certificate
on 16/03/2010 on the basis of which the
respondents contended physical possession
was handed over to the petitioner.

40. Considering the various
judgements as considered above including
Indore
Development
Authority
v.
Manoharlal, this Court is of the considered
opinion that a mere paper signed by an
authority of GNIDA without it being signed
by any other independent person it cannot
be said that actual physical possession was
handed
over
to
the
petitioner.
The
petitioner, on the other hand, has been
repeatedly requesting GNIDA to hand over
the actual physical possession of the plot.
The petitioner had further intimated that it
would initiate building the boundary wall,
and in fact, it had engaged a contractor to
build the boundary wall, which was
obstructed by the farmers, and the GNIDA
as well as police authorities were duly
intimated
about
the
said
fact
on
25/01/2012.

41. It has been contended by
GNIDA, the mere fact that the petitioner
had commenced construction of boundary
wall evidences that the petitioner had the
possession over the said plot.

42. The aforesaid premise on
which the impugned order has been passed
is itself a baseless and not believable.