POSSESSION UNDER THE LAND ACQUISITION ACT, 1894

Land to be acquired under the Land Acquisition Act, 1894 (“the Act”) is to be done after publication of preliminary notification as under Section 4 of the Act. And after hearing of any objections under Section 5A of the Act the Government can under Section 6 of the Act declare that the land acquired is to be used for public purpose. The collector based on Section 11 of the Act shall make compensation award for the land acquired from the original owners of the land and as per Section 16 of the Act can take possession of the land.    ?

However when the Government proceeds to take possession of the land acquired by it under the Act 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 is 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 hard and fast rule laying down what act would be sufficient to constitute taking of possession of land.[1]

When possession is to be taken over in respect of the land in question, a mere intention to do so may not be enough. If the lands in question are agricultural lands, not only actual physical possession had to be taken but also they were required to be properly demarcated.[2]

It is settled law by series of judgments of the Hon’ble Supreme Court that one of the accepted modes of taking possession of the acquired land is recording of a memorandum or panchnama by the Land Assessing officer (“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 also common knowledge that in some cases the owner/interested person may not be cooperative in taking possession of the land.

In respect of the same in Balmokand Khatri Educational ... vs State Of Punjab & Ors,[3] it has been observed that:-

“It is now well-settled legal position that it is difficult to take physical possession of the land under compulsory acquisition. The normal mode of taking possession is drafting the panchnama in the presence of panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would tantamount only to illegal or unlawful possession."

Again, in Tamil Nadu Housing Board v. A. Viswam(Dead) by Lrs.[4], it has been categorically held that when the accepted mode of taking possession of the acquired land is resorted to, that method would constitute taking possession of the land.

In Larsen & Toubro Ltd. v. State of Gujarat & Ors. [(1998) 4 SCC 387] and P.K. Kalburqui v. State of Karnataka & Ors. [(2005) 12 SCC 489], the same view has been reiterated:-

“27. These decisions, as noticed hereinbefore, do not lay down an absolute rule. The question as to whether actual physical possession had been taken in compliance of the provisions of Section 17 of the Act or not would depend upon the facts and circumstances of each case.”

In the case of Balwant Narayan Bhagde v. M.D. Bhagwat[5] , the process of taking possession of land acquired was again discussed:

".........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 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 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 Tehsildar 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 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."

The Hon’ble Supreme Court taking in view of the judgments in Banda Development Authority, Banda v. Moti Lal Agarwal, Balwant Narayan Bhagde v. M.D. Bhagwat , Balmokand Khatri Educational and Industrial Trust v. State of Punjab , P.K. Kalburqi v. State of Karnataka , NTPC v. Mahesh Dutta , Sita Ram Bhandar Society v. Govt. of NCT, Delhi, Omprakash Verma v. State of Andhra Pradesh and Nahar Singh v. State of U.P. (1996) 1 SCC 434, laid down the following principles on the subject:

"(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 utilized in furtherance of the particular public purpose, then the Court may reasonably presume that possession of the acquired land has been taken."

The law on the subject and the above mentioned guidelines will give paramount clarity on the modes and methods of taking possession by the government of acquired land vide notifications in view of the shadow of section 17 of the Act which states special categories of urgencies under which the state can acquire land without the due process of going through section 4 and section 6 of the Act and without giving due hearing under section 5A of the Act as given under section 17(4) of the Act.     

[1]Balwant Narayan Bhagde v. M.D. Bhagwat, (1976) 1 SCC 70  

[2] National Thermal Power Corpn.Ltd vs Mahesh Dutta And Ors, (2009) 8 SCC 339

[3] (1996) SCC (4) 212

[4] (1996) 8 SCC 259

[5] (1976) 1 SCC 700