# Vijay Pal Singh v. State of U.P. & Ors

- **Citation:** (2023) 6 ILRA 707
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-29
- **Case number:** Writ-C No. 66886 of 2006
- **Bench:** Salil Kumar Rai, Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijay-pal-singh-v-state-of-u-p-ors-50347
- **Pages:** 10

## Headnote

C.S.C., Sri Anuj Srivastava, Sri Siddharth Varma,
Sri Siddharth Verma, Sri Varad Nath, Sri H.N.
Singh (Sr. Advocate)

Writ Petition filed to de-notify the notification of
the acquisition -on the ground that the
petitioner is still in possession of the part of the
land-his hotel is running over it- possession of
the land was taken by the St. and on the same
date, the same was handed over to U.P.S.I.D.C.
for developing industrial plots- no evidence that
possession was not taken from them -
possession of the acquired land was taken as
per existing procedure which was also approved
by the Hon'ble Supreme Court- possession
supported
by
possession
certificate
and
thereafter establishing the factory of respondent
no.4 on major part of the acquired land proof
that possession of the acquired land was taken
and the same was also utilized by the
beneficiary-petition itself is barred by serious
laches- However open to respondent no.3- to
consider the request of the petitioner to allot or
lease out the land on which Hotel of the
petitioner is existing- business of Hotel also
comes within the definition of industry and
equity also demand that instead of demolishing
the building .

W.P. dismissed. (E-9)

List of Cases cited:

## Text

6 All. Vijay Pal Singh Vs. State of U.P. & Ors.
707
in 2016 with dismissal of the curative and
review petitions and, therefore, if the writ
petitioner filed writ petition in 2017, the
same cannot be treated as barred by laches
so as to deny interference in the matter.

17. Insofar as the argument of Shri Nipun
Singh, learned counsel for the college, to the
effect that the petitioners had given an
undertaking at the time of taking admission that
fees deposited shall not be refunded under any
circumstances, I find that the said aspect has
already been dealt with by Special Appellate
Court in its judgment dated 29.9.2010 in special
appeals and I cannot take a contrary view. The
said decision of Division Bench has been
affirmed even up to the Hon'ble Apex Court.

18. Even otherwise, the said undertaking
is in the form of affidavit in a printed proforma
forming part of supplementary counter affidavit
as Annexure SCA-1 and such an affidavit was
designed and framed by the officers of the
University and college itself and considering
the plight of a student, who comes to the
college to take admission, filling up all
documents of this nature cannot be said to
operate as estoppel against him while seeking
any relief that the law permits in the facts and
circumstances of a particular case.

19. In the present case, once this Court as
well as the Apex Court have already examined
the entitlement of the college to charge excess
fees and has decided the issue against the
college and once other students have already
been refunded the excess amount of fees
pursuant to the aforesaid judgments, I do not
find any ground to deny the same relief to the
petitioner on the principles of equity, equality as
well as Constitutional parity enshrined under
Article 14 of the Constitution of India.

20. Even otherwise denying relief to the
petitioner would amount to undue enrichment
of the college by withholding the amount of
fees, which it is not entitled as learned Single
Judge had passed
the
order
declaring
entitlement of the college to charge fees as per
the Government Order dated 8.1.2003 and not
beyond that.

21. For all the aforesaid reasons, the writ
petition succeeds and is allowed in part.

22. A writ of mandamus is issued to
the respondents 2 and 3 to refund the excess
amount of fees realized from the petitioner
by following the judgment of this Court
dated 14.8.2007 passed in Writ-C No.12333
of 2004 (Abhishek Kadian and others vs.
State of UP and others) within a period of
three months from the date, a certified copy
of this order is produced before the said
respondents.

23. Relief of cost of Rs.10,000/- as
awarded under the order dated 14.8.2007 is
denied to the petitioner. Further, the petitioner
shall not be entitled to any interest on the excess
amount, which is lying with the respondents.
----------
(2023) 6 ILRA 707
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.05.2023

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.
THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Writ-C No. 66886 of 2006

Vijay Pal Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri A.D. Saunders, Sri Akhilesh Tripathi, Sri
Anoop Trivedi, Sri S.P.S. Rajput, Shilpa Ahuja,
Sri Shivam Yadav
708 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
C.S.C., Sri Anuj Srivastava, Sri Siddharth Varma,
Sri Siddharth Verma, Sri Varad Nath, Sri H.N.
Singh (Sr. Advocate)

Writ Petition filed to de-notify the notification of
the acquisition -on the ground that the
petitioner is still in possession of the part of the
land-his hotel is running over it- possession of
the land was taken by the St. and on the same
date, the same was handed over to U.P.S.I.D.C.
for developing industrial plots- no evidence that
possession was not taken from them -
possession of the acquired land was taken as
per existing procedure which was also approved
by the Hon'ble Supreme Court- possession
supported
by
possession
certificate
and
thereafter establishing the factory of respondent
no.4 on major part of the acquired land proof
that possession of the acquired land was taken
and the same was also utilized by the
beneficiary-petition itself is barred by serious
laches- However open to respondent no.3- to
consider the request of the petitioner to allot or
lease out the land on which Hotel of the
petitioner is existing- business of Hotel also
comes within the definition of industry and
equity also demand that instead of demolishing
the building .

W.P. dismissed. (E-9)

List of Cases cited:

1. Sawaran Lata & ors.Vs St. of Har. & ors.,
2010(4) SCC 532

2. Swaika Properties Pvt. Ltd. & ors.Vs St. of
Raj. & ors., MANU/SC/0795/2008

3. Kamal Singh & ors. Vs St. of U.P. & ors.,
MANU /UP/1457/202

4. Dinesh Kumar & ors.Vs St. of U.P. & ors.,
2018 (5) ADJ 297

5. A.P. Industrial Infrastructure Corporation Ltd.
Vs Chinthamaneni Narasimha Rao & ors., AIR
2011 SC 3558

6. Aflatoon & ors.Vs Lt. Governor of Delhi and
other, AIR 1974 SC 2077

7. Mahaveer Vs St. of U.P. & ors.reported in
2018(6) ADJ 529

8. Land and Building Department through
Secretary & ors.Vs Attro Devi & ors.reported in
Manu/SC/0621/2023

9. Indore Development Authority Vs Manohar
Lal & ors.reported in 2020(8) SCC 129

10. Banda Development Authority, Banda Vs
Moti Lal Agarwal reported in 2011 AIR SCW
2835

11. Balwant Narayan Bhagde Vs M.D., Bhagwat
reported in 1976(1) SCC 700

(Delivered by Hon'ble Arun Kumar Singh
Deshwal, J.)

1. Heard Sri Akhilesh Tripathi,
learned counsel and Sri Shivam Yadav,
learned counsel for the petitioner, learned
Standing Counsel representing the State-
respondent, Sri H.N. Singh, learned
Senior Advocate assisted by Sri Anuj
Srivastava, learned counsel representing
the
Uttar
Pradesh
State
Industrial
Development
Corporation
Ltd.
(hereinafter
referred
to
as
the
U.P.S.I.D.C.) and Sri Amit Saxena,
learned Senior Counsel assisted by Sri
Varad Nath, learned counsel for the
respondent no.4.

2. Present writ petition has been filed
by the petitioner basically for the prayer to
de-notify the notification of the acquisition
dated 16.06.1976 in respect of plot
No.199M, total area 1.20 acres situated at
Mauja Bhanpur Khalsa, Pargana Hasanpur,
District Moradabad on the ground that the
petitioner is still in possession of the part of
the land of Plot No.199M though the same
was
acquired
by
notification
dated
16.06.1976 and his hotel is running over it
since 1984.
6 All. Vijay Pal Singh Vs. State of U.P. & Ors.
709

The factual matrix of the case is as
follows:-

3 (a). The petitioner was the tenure
holder of Plot No.199M of area 1.91 acre
situated in Mauja Bhanpur Khalsa, Pargana
Hasanpur, District Moradabad.

3(b). State Government issued a
notification dated 16.06.1976 under Section
4(1) of Land Acquisition Act, 1894
(hereinafter referred to as the 'Act, 1894')
and also invoked urgency clause Section
17(1) of the 'Act, 1894'. By this
notification, apart from the other land,
portion of the land in Gata No.199M area
1.20 acre was also proposed to be acquired.
This notification was followed by another
notification dated 17.06.1976 under Section
6 of 'Act, 1894'. The award in the aforesaid
notification
was
also
declared
on
07.05.1989. The present petitioner after
receiving the compensation as declared by
award dated 07.05.1985 also filed reference
under Section 18 of Act, 1894 before the
District
Judge,
Moradabad
bearing
Reference No.268 of 1988, and same was
also
allowed
on
01.04.2022
and
compensation for acquired land was
enhanced. Thereafter UPSIDC who was the
beneficiary of the aforesaid notification has
also challenged the award dated 07.05.1985
before this Court through Writ Petition
No.18453 of 1986 on the ground that
before passing the award dated 07.05.1985,
UPSIDC was not heard. The aforesaid writ
petition was allowed vide order dated
06.11.2009 and the award dated 07.05.1985
was quashed and a direction was made to
pass the fresh award. Thereafter in
pursuance of the order dated 06.11.2009
passed in Writ Petition No. 18453 of 1986,
a fresh award was passed on 07.10.2010 by
which the amount of compensation was
reduced. It is also pertinent to mention here
that the order dated 06.11.2009 passed in
Writ Petition No. 18456 of 1986 as well as
fresh award dated 07.10.2010 were passed
during the pendency of present writ
petition.

3(c). The acquired land, in pursuance
of
the
notification
dated
16.06.1976
including
the
acquired
land
of
the
petitioner, was allotted to M/s Sivallik
Cellulose Ltd. Company through lease deed
dated
20.11.1976
and
02.03.1977.
Thereafter impleadment application dated
02.04.2019 was filed by the M/s Sivallik
Cellulose Ltd. to implead it as respondent
no.4 which was allowed by this Court vide
order dated 01.05.2019 and was permitted
to be impleaded as respondent no.4.
Thereafter counter affidavit was also filed
on behalf of the respondent no.4.

3(d).
Petitioner
has
filed
one
amendment application dated 07.03.2010 to
add the prayer for quashing the notification
dated 16.06.1976 as well as notification
dated 17.06.1976 issued under Sections 4
and 6 of the Act, 1894 respectively. This
amendment application was rejected by
separate order on the ground of serious
latches in challenging the notification of
1976 (after almost 34 years).

4. Contention of learned counsel for
the petitioner is that possession of his
acquired land was not taken by the
respondents and he is still in possession
over that land. State has not produced any
evidence despite order dated 13.03.2019 of
this Court, showing that possession was
taken from him and Hotel namely Basant
Hotel has been existing over it even today
and for running this Hotel, required
permission was also granted by the office
of the Collector. The contention regarding
the possession of the petitioner over his
acquired land in Plot No.199M is based on
the report dated 30.01.2006 of the District
710 INDIAN LAW REPORTS ALLAHABAD SERIES
Magistrate, Jyotiba Phule Nagar. Report
dated 30.01.2006 of District Magistrate,
Jyotiba Phule Nagar shows that in the part
of the acquired land in Gata No.199M,
Basant Hotel is exiting and remaining land
is vacant which is being used for
agricultural purpose and same is in
possession of the petitioner. It appears that
above
report
dated
30.01.2006
was
submitted by the District Magistrate,
Jyotiba Phule Nagar to Government of U.P.
in pursuance of letter dated 08.12.2005 on
receiving the representation of petitioner to
de-notify his land on the ground that
possession was not taken from him.

5. On the basis of report dated
30.01.2006,
the
petitioner
has
again
submitted representation dated 17.02.2006
to de-notify his acquired land in Gata
No.199M or allot the same in his favour but
the aforesaid request regarding allotment
was turned down by Chief Manager,
Industrial Area, Lucknow vide letter dated
03.06.2006, thereafter the petitioner moved
an application dated 18.09.2006 before
respondent no.1 to issue direction to
U.P.S.I.D.C to review the order dated
03.06.2006 of Chief Manager, Industrial
Area, Lucknow for consideration his prayer
to allot the acquired land in Gata No.199M.
It appears that the said application is still
pending. Nothing on record that petitioner's
prayer regarding de-notification of his
acquired land was rejected.

6. In the counter affidavit filed on
behalf of the respondent nos.1 and 2, it was
stated that possession of the entire acquired
land including the land of the petitioner in
pursuance
of
the
notification
dated
17.06.1976 was taken over under Section 9 of
the
'Act,
1894'
on
08.07.1976
and
compensation has already been paid in
pursuance of the award, therefore the land has
been vested in the State and no question of
de-notification under Section 48 of the 'Act,
1894' arises and after taking the possession
mentioned above same was handed over to
M/S Sivallika Cellulose Ltd. (respondent
no.4) because the same was allotted to that
company by UPSIDC. M/s Shiwalika
Cellulose
Ltd.
(respondent
no.4)
had
established paper mill on the aforesaid
acquired land allotted by the U.P.S.I.D.C.

7. Respondent no.4 had also filed a
counter affidavit and in its counter affidavit, it
was contended that the acquired land was
leased out to respondent no.4 for 90 years
through two different lease deeds dated
20.10.1976 and 02.03.1977, and possession
of the entire industrial plot (acquired land) of
area 34.76 acres was handed over by
U.P.S.I.D.C.
to
respondent
no.4
on
08.07.1976 and after taking the possession of
the allotted land, it has constructed boundary
wall and made several other constructions
inside therein and established factory in June,
1979. It was further stated that the report
dated 30.01.2006 of the District Magistrate
itself, contrary to thepossession certificate
and lease deeds executed in favour of
respondent no.4 by the U.P.S.I.D.C. and it
was lastly contended by respondent no.4 that
acquisition proceeding has become final and
it cannot be challenged after the substantial
delay.

8. In support of his case, counsel for
the respondent no.4 has relied upon the
following judgements.

(i) 2010(4) SCC 532 (Sawaran Lata
and others vs State of Haryana and
others);

(ii) MANU/SC/0795/2008 (Swaika
Properties Pvt. Ltd. and others vs State
of Rajasthan and ors.)
6 All. Vijay Pal Singh Vs. State of U.P. & Ors.
711

(iii) MANU /UP/1457/2020 (Kamal
Singh and ors vs State of U.P. and ors);

(iv) 2018 (5) ADJ 297 (Dinesh
Kumar and others vs. State of U.P. and
others)

(v) AIR
2011
SC
3558
(A.P.
Industrial Infrastructure Corporation
Ltd. Vs Chinthamaneni Narasimha Rao
and Ors).

(vi) AIR 1974 SC 2077 (Aflatoon
and others vs. Lt. Governor of Delhi and
other)

9. It is further submitted that once the
acquired land is vested in State by taking
possession of the same, then same cannot
be divested. Therefore the same cannot be
denotified under Section 48 of the Act,
1894. In support of his contention, he relied
upon the judgement of Mahaveer vs. State
of U.P. and others reported in 2018(6)
ADJ 529.

10.

Learned
counsel
for
the
respondents also contended that large
chunk of land is acquired, then the State
agency is not required to keep police force
to protect the possession of the land taken
after
the
process
of
acquisition
is
completed. Therefore, even if it is admitted
fact that Hotel was constructed in the year
1984 by the petitioner, that is illegal
constructions and in support of his
submission,
learned
counsel
for
the
respondents relied upon the judgment of
Land and Building Department through
Secretary and others vs Attro Devi and
others reported in Manu/SC/0621/2023.

11. Learned counsel for the petitioner,
after
argument
of
counsel
for
the
respondents also contended that the land on
which Hotel is situated may be allotted to
him by U.P.S.I.D.C. and in place of that, he
is ready to surrender equivalent land
adjacent to the acquired land in Gata
no.199M .

12. After considering the rival
arguments as well as on perusal of record,
the sole question that arises here for
consideration is whether the possession of
the acquired land of the petitioner was
taken by the State or not.

13. From the record, it is clearly
established that notification under Sections
4 and 6 of the 'Act, 1894' issued on
16.06.1976 and 17.06.1976 respectively
and in pursuance of the above notification,
possession of the land was taken by the
State on 08.07.1976 and on the same date,
the same was handed over to U.P.S.I.D.C.
for developing industrial plots. From
possession
letter
dated
08.07.1976
produced by the State, it is established that
the possession of the land was taken on
08.07.1976 and the possession letter dated
08.07.1976 is sufficient proof of possession
as per Section 114(3) of Evidence Act
because same was duly executed in the
discharge of official duty and after taking
possession of the same, the entire acquired
land, including the land of the present
petitioner having a total area 34.76 acres
was leased out/ allotted to respondent no.4
through lease deeds dated 20.10.1976 and
02.03.1977. It is also undisputed that after
taking possession of the acquired land of an
area 34.76 acres, respondent no.4 a
constructed boundary wall and established
a factory over the allotted land. It is
admitted case of the petitioner that they got
permission to run hotel in the year 1984,
and they have also obtained compensation
in pursuance of the award dated 07.05.1985
and thereafter petitioner had also filed
reference under Section 18 of the Act, 1894
against the compensation awarded by the
award
dated
07.05.1985.
Though
712 INDIAN LAW REPORTS ALLAHABAD SERIES
subsequently, the award dated 07.05.1985
was quashed by this Court on 06.11.2009 in
the Writ Petition No. 18453 of 1986 filed
by the U.P.S.I.D.C. on technical grounds
during the pendency of the present writ
petition and thereafter fresh award was also
made, but this fact will not give any benefit
to the present petitioner as question herein
is possession of land in dispute.

14. Although on the one hand, State
has established by producing the possession
certificate dated 08.07.1976 that possession
of the land was taken, but on the other hand
petitioner could not dispute the above
certificate by producing any evidence that
possession was not taken from them on
08.07.1976. Though in the report dated
30.01.2006, it is mentioned that in part of
the acquired land in Gata No.199M, Basant
Hotel of the petitioner exists.

15. Hon'ble Supreme Court in the
case of Indore Development Authority vs
Manohar Lal and others reported in
2020(8) SCC 129, wherein it clearly
observed in paragraph 366.7 that mode of
taking possession under 'Act, 1894' is by
drawing inquest report/ memorandum.
Once the award has been passed on taking
possession under Section 16 of Act, 1894
the land vests in the State and there is no
divesting the same. Once the land is vested
in the State after taking possession of the
same, then subsequent possession on the
part of original tenure holder is illegal and
the same cannot be taken into account. The
relevant paragraph nos. 247 and 258 are
quoted herein below;

"247. The question which arises
whether there is any difference between
taking possession under the Act of 1894
and the expression "physical possession"
used in Section 24(2). As a matter of fact,
what was contemplated under the Act of
1894, by taking the possession meant only
physical possession of the land. Taking
over the possession under the Act of 2013
always amounted to taking over physical
possession of the land. When the State
Government acquires land and drawns up a
memorandum of taking possession, that
amounts to taking the physical possession
of the land. On the large chunk of property
or otherwise which is acquired, the
Government is not supposed to put some
other person or the police force in
possession to retain it and start cultivating
it till the land is used by it for the purpose
for which it has been acquired. The
Government is not supposed to start
residing or to physically occupy it once
possession has been taken by drawing the
inquest
proceedings
for
obtaining
possession thereof. Thereafter, if any
further retaining of land or any re-entry is
made on the land or someone starts
cultivation on the open land or starts
residing in the outhouse, etc., is deemed to
be the trespasser on land which in
possession of the State. The possession of
trespasser always insures for the benefit of
the real owner that is the State Government
in the case.

258. Thus, it is apparent that vesting is
with possession and the statute has
provided under Sections 16 and 17 of the
Act of 1894 that once possession is taken,
absolute
vesting
occurred.
It
is
an
indefeasible right and vesting is with
possession thereafter. The vesting specified
under section 16, takes place after various
steps, such as, notification under section 4,
declaration under section 6, notice under
section 9, award under section 11 and then
possession. The statutory provision of
vesting of property absolutely free from all
encumbrances has to be accorded full
effect. Not only the possession vests in the
6 All. Vijay Pal Singh Vs. State of U.P. & Ors.
713
State but all other encumbrances are also
removed
forthwith. The
title
of
the
landholder ceases and the state becomes
the absolute owner and in possession of the
property. Thereafter there is no control of
the land- owner over the property. He
cannot have any animus to take the
property and to control it. Even if he has
retained the possession or otherwise
trespassed upon it after possession has
been taken by the State, he is a trespasser
and such possession of trespasser ensures
for his benefit and on behalf of the owner of
contemplate divesting of the property from
the State as mentioned above."

16. Similarly, in the case of Banda
Development Authority, Banda vs Moti
Lal Agarwal reported in 2011 AIR SCW
2835, it was observed in paragraphs 34 and
35 that no hard and fast rule can be laid
down as to what act would constitute taking
possession of the acquired land and if the
acquired land is vacant, the concerned State
authorities to go to the spot and prepare a
Panchnama showing delivery of possession
was sufficient for recording of finding that
actual possession of the entire land had
been taken. Utilisation of major portion of
the acquired land for the public purpose for
which it was acquired, is clearly indicative
of fact that actual possession of the
acquired land had been taken.

17. Paragraphs 34 and 35 of the
Banda Devleopment Authority (supra)
case are being quoted hereinbelow;

"34. 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 concerned State authority 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 concerned
authority will, by itself, be not sufficient for
taking possession. Ordinarily, in such
cases, the concerned authority 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(3A) 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.

35. In the light of the above
discussion, we hold that the action of the
concerned State authorities to go to the
spot and prepare panchnama showing
delivery of possession was sufficient for
recording a finding that actual possession
of the entire acquired land had been taken
714 INDIAN LAW REPORTS ALLAHABAD SERIES
and handed over to the BDA. The
utilization of the major portion of the
acquired land for the public purpose for
which it was acquired is clearly indicative
of the fact that actual possession of the
acquired land had been taken by the BDA."

18. Similarly, in Balwant Narayan
Bhagde vs M.D., Bhagwat reported in
1976(1) SCC 700; wherein Court observed
in para 28 that the act of Tehsildar 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 commissioner to withdraw
from acquisition under Section 48-A of the
'Act 1894'. The para 28 of the aforesaid
judgement is quoted hereinbelow;

"BHAGWATI, J. (concurring) (for
himself and Gupta, J.)- 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 XXI 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 theLand
Acquistition 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 Actcontemplates as a
necessary condition of vesting of the ]And
in the Government is the taking of actual
possession
of
the
land.
How
such
possession may be taken would depend on
the natureof the land. Such possession
would have to be taken as the natureof the
land admits of. There can be no hard and
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 'pot 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
laying fallow and there was no crop on it at
the material time, the act of the Tehsildar
ingoing 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 Tehsildar, 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 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."
6 All. Vijay Pal Singh Vs. State of U.P. & Ors.
715

19. In the present case, possession of
the acquired land was taken in 1976 as per
existing
procedure
which
was
also
approved by the Hon'ble Supreme Court.
Therefore, in view of above legal position,
the possession of the acquired land of the
petitioner
was
taken
on
08.07.1976,
supported by possession certificate and
thereafter establishing the factory of
respondent no.4 on major part of the
acquired land proof that possession of the
acquired land was taken and the same was
also utilised by the beneficiary.

20. In the present case, notification
dated 17.06.1976 was not challenged while
filing the present case and only prayer was
made that application of the petitioner for
de-notifying his land under Section 48 may
be considered.

21. Section 48 itself does not give any
right to original tenure holder to compel the
State to withdraw from the acquisition.
This Section is only an enabling provision
which enables the State to withdraw from
acquisition when possession of the acquired
land was not taken but in the present case,
the State as well as respondent no.3 clearly
stated that possession of the land was taken
and the same was transferred to respondent
no.4 for establishing a factory. Section 48
of the Land Acquisition Act, 1894 is quoted
herein below;

"Section 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
Collector shall determine the amount of
compensation due for the damage suffered
by the owner in consequence of the notice
or of any proceedings thereunder, 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 provisions of Part III of this Act
shall apply, so far as may be, to the
determination of the compensation payable
under this section."

22. The present petition itself is
barred by serious laches because the
petitioner has agitated the ground of
possession in the year 2006 though the land
was acquired in 1976 and possession was
also
taken
in
the
year
1976
and
subsequently leased out to respondent no.4
in the year 1976 and 1977.

23. In view of the fact, the petitioner
could
not
make
out
any
case
for
considering
his
representation
under
Section 48 of the 'Act, 1894' de-notifying
the notification dated 17.06.1976 regarding
the acquired land of the petitioner in Gata
No.199M situated at Mauja Bhanpur
Khalsa,
Pargana
Hasanpur,
District
Moradabad therefore petition fails and is
dismissed.
However,
it
is
open
to
respondent no.3 to consider the request of
the petitioner to allot or lease out the land
on which Hotel of the petitioner is existing
because the business of Hotel also comes
within the definition of industry and equity
also demand that instead of demolishing
the building of running Hotel, land
underneath the Hotel Building may be
allotted to the petitioner as per the terms
and
conditions
to
be
decided
by
U.P.S.I.D.C., in case the aforesaid land is
part of the acquired land.
716 INDIAN LAW REPORTS ALLAHABAD SERIES

 Case :- WRIT - C No. - 66886 of
2006

Petitioner :- Vijay Pal Singh

Respondent :- State Of U.P. Thru
Principal Secry. Indus. Devlp. And Ors.

Counsel
for
Petitioner
:-
A.D.
Saunders,
,Akhilesh
Tripathi,Anoop
Trivedi,S.P.S. Rajput,Shilpa Ahuja

Counsel
for
Respondent
:-
C.S.C.,Anuj
Srivastava,Siddharth
Varma,Siddharth Verma,Varad Nath

Hon'ble Salil Kumar Rai, J.

Hon'ble Arun Kumar Singh Deshwal,J.

Order on amendment application

1. Present amendment application has
been filed to include the prayer challenging
the notification dated 16.06.1976 under
Section 4/17(1)(4) as well as notification
dated 17.06.1976 under Section 6/17(1)(4)
of Land Acquisition Act, 1894.

2. As the prayer, the petitioner wants
to include quashing the notification is
highly belated i.e. after 24 years. Hon'ble
Supreme Court in the cases (i) 2010(4)
SCC 532 (Sawaran Lata and others vs
State of Haryana and others); (ii)
MANU/SC/0795/2008 (Swaika Properties
Pvt. Ltd. and others vs State of Rajsthan
and (iii) AIR 2011 SC 3558 (A.P.
Industrial Infrastructure Corporation
Ltd. Vs Chinthamaneni Narasimha Rao
and Ors) and (iv) AIR 1974 SC 2077
(Aflatoon and others vs. Lt. Governor of
Delhi and other) clearly held that the
acquisition notification cannot be quashed
after considerable delay of many years.
Therefore, the prayer for quashing the
notifications which the petitioner wants to
add by impleadment application is serious
barred
by
laches,
therefore,
present
amendment application is rejected.
----------

(2023) 6 ILRA 716
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.05.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Matters Under Article 227 No. 9954 of 2022

Bakar Ali Khan & Ors. ...Petitioners
Versus
State Of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Sri Arvind Srivastava III

Counsel for the Respondents:
G.A., Sri Brijesh Kumar Yadav

(A) Constitution of India - Article 227 -
The Code of Criminal Procedure, 1973 -
Section 145 - procedure where dispute
concerning land or water is likely to cause
breach of peace , Section 146 - Power to
attach subject of dispute and to appoint
reciever - Once the Civil Court is seized of
the matter, it goes without saying that the
proceedings
under
Section
145/146
Cr.P.C. cannot proceed and must come to
an end - In a proceeding under Section
145/146 Cr.P.C., Executive Magistrate is
not empowered to decide the question of
title and legality of possession claimed by
any
other
parties
-
parties'
rights
regarding
title
or
possession
are
eventually determined by the Civil Court.
(Para - 9,11)

Both sides filed civil suits - for cancellation of
sale deed/injunction - where question of right,
title or interest of party are to be attached - on
basis of evidence adduced by parties -
Magistrate passed an injunction order against
petitioners - who were first party in the dispute
- not issued any attachment order with regard
to property in dispute.(Para - 11)