Holding

Once possession is taken under Section 17 of the Land Acquisition Act, the land vests absolutely in the Government, precluding any withdrawal under Section 48, and the High Court's findings were upheld.

Summary

The National Thermal Power Corporation Ltd. (NTPC) acquired 65.71 acres of land under the Land Acquisition Act, 1894 for a thermal power plant, invoking emergency provisions of Section 17 and paying 80% compensation. NTPC claimed it had only taken physical possession of about 10.2 acres and sought withdrawal of acquisition for the remaining 55.5 acres under Section 48, which the State Government issued a notification for. The High Court upheld the withdrawal, but the Supreme Court held that the provisions of Section 17 had been complied with, resulting in immediate vesting of the entire land in the Government, thereby extinguishing the power to withdraw under Section 48. The Court also affirmed that the High Court could determine disputed questions of fact on the basis of documents and that the burden of proving lack of possession lay on the State under Section 114 of the Evidence Act. Consequently, the appeals were dismissed and the land remained vested in NTPC, which may use it for any public purpose.

Issues considered

The validity of the State's power to withdraw acquisition under Section 48 after possession was taken under Section 17.
Whether actual possession of the entire land was taken, or only symbolic possession, and the evidentiary burden thereof.
Whether the High Court was competent to decide disputed questions of fact in the writ petitions.
Whether the land, once acquired for a specific public purpose, can be repurposed for another public purpose.
Whether NTPC is estopped from contesting the possession and withdrawal issues.

Legislation cited

Indian Evidence Act, 1872s. 114
Land Acquisition Act, 1894s. 11, s. 17, s. 17(1), s. 17(3A), s. 17(4), s. 23A, s. 4, s. 48, s. 54, s. 6, s. 9

Subjects

Land acquisitionSection 17Section 48PossessionEstoppelPublic purposeHigh Court jurisdictionEvidence Act 1872CompensationEmergency provisions

Judgment

(2009] 10 S.C.R. 1084

A NATIONAL THERMAL POWER CORPORATION LTD.
v.
MAHESH DUTTA AND OTHERS
(Civil Appeal Nos. 6228-6229 of 2002)
JULY 16, 2009
B
[S.B. SINHA AND CYRIAC JOSEPH, JJ.]

LAND ACQUISITION ACT, 1894:

c ss. 17 and 48 - Acquisition of land - Power of State to
withdraw from acquisition - Provisions of s. 17 invoked and
complied with - Award made - During pendency of appeal
before High Court against enhancement of compensation by
reference court, State Government issuing notification uls 48
D - Held: Provision of s. 17 having been taken recourse to, land
under acquisition vested with immediate effect and absolutely
in Government - After possession of land having been taken,
State would be denuded of its power to withdraw from
acquisitio, 1 u/s 48 - Appellant having stated in appeal before
E High Court that possession of land was taken, estopped and
precluded from raising a plea contra before Supreme Court
- If the land could not be used for purpose it was acquired, it w

is pennissible for State to use the land for another purpose -
Estoppel - Evidence Act, 1872 - s.114 - Land acquisition -
User of acquired land.
F
s. 54 - Appeal before High Court -- Held: If a disputed
question can be detennined on basis of documents and I or
affidavit, High court may not ordinarily refuse to do so - In a
given case, it may also examine witnesses.
G
Land admeasuring 65.7125 acres was acquired
under the Land Acquisition Act, 1894 for the appellant
Corporation in order to enable it to set up a Thermal
Power Station. Since generation of electricity was

H 1084
NATIONAL THERMAL POWER CORPORATION LTD.1085
v. MAHESH DUTIA AND ORS.
extremely urgent, provisions of ss. 17(1) and 17(4) of the A
Act were invoked. The Collector disbursed 80%of the
amount of compensation in terms of s. 17(3A) of the Act
and issued possession certificate. The award was made.
The reference court enhanced the compensation, against
which the Corporation filed appeals before the High B
Court contending that out of the 65.7125 acres of land,
possession of entire land was not taken, and the District
Magistrate was approached for issuance of a notification ·
de-notifying /withdrawing the acquisition of land
admeasuring 55.498 acres. The State Government issued c
the Notification dated 11.11.1994 in terms of s.48 of the
Act, which was challenged by the land owners in writ
. petitions. The High Court allowed the writ petitions.
Aggrieved, the NTPC filed the appeals.

Dismissing the appeals, the court D

HELD: 1.1. In the instant case, indisputably, the
provisions of s.17 of the Land Acquisition Act, 1894 were
taken recourse to and, thus, the lands under acquisition
vested with immediate effect and absolutely in the E
government. In the event possession of the land, in
.,, respect whereof a Notification had been issued, had
been taken over, the State would be denuded of its power
to withdraw from the acquisition in terms of s. 48 of the
Act. [Para 16, 18 and 29] [1096-F; 1097-G] F
1.2. From a perusal of the award, it is evident that not
only the provisions of s.17 of the Act were found to have
been implemented but even interest had also been
granted from the date of acquisition, namely, from the
date of taking over of possession. Interest had also been G
granted in terms of s. 23-A of the Act from the date of
notification till the date of actual taking over of
possession, which fact the reference court also noted in
its judgment No objection was taken before the reference
court that possession had not been taken and, thus, H
1086 SUPREME COURT REPORTS [2009] 10 S.C.R.

A interest was not payable. Nor any issue was framed in that
regard. Even 80% of the compensation had been paid
way back in 1984. Besides, in the memo of appeal
preferred by the appellant before the High Court a
statement was made that the possession of the land was
B taken by invoking s. 17 of the Act on 16.11.1984. In view
of the stand taken by the appellant before the land
acquisition authorities as also the reference court and the
High Court, it is estopped and precluded from raising a
plea contra. Even before this Court, the only ground
c taken _was that the land could not be put to use which is
a non-issue. [Para 20, 24 and 25) [1099-F-G; 1100-D; 1098-
8; 1100-8-C]

Ba/want Narayan Bhagde v. MD Bhagwat AIR 1975 SC
1967 = (1976) 1 sec 70 - relied on.
D
Larsen & Toubro Ltd. V. State of Gujarat & Ors. (1998) 4
SCC 387 and PK Ka/burqui v. State of Karnataka & Ors.
(2005) 12 sec 489 referred to.

E 1.3. Taking over of possession in terms of the
provisions of the Act would mean actual possession and
not symbolic possession. It is beyond any
::omprehension that when possession is purported to
have been taken of the entire acquired lands, actual
possession would be taken only of a portion thereof. It
F is difficult to comprehend that if the NTPC had paid 80
% of the total compensation as provided for under sub-
s.(3-A) of s. 17 of the Act, out of 65.7125 acres of land it
had obtained possession only in respect of about 10.215
acres of land and still for such a long time it kept mum.
G Ex -facie, therefore, it is difficult to accept that merely
symbolic possession liad been taken. The High Court,
therefore, was correct in its view. [Para 29, 30 and 32)
[1102-E-H; 1103-A-C; 1106-E-F]

H Lt. Governor of Himachal Pdradesh & Anr. v. Sri Avinash
NATIONAL THERMAL POWER CORPORATION LTD. 1087
v. MAHESH DUTIA AND ORS.
Sharma (1970 (2) SCC 149; Stendra Prasad Jain & ors. v. A
~ ~ State of UP & Ors. (1993) 4 SCC 369; Pratap & Anr. v. State
of Rajasthan & Ors. (1996) 3 SCC 1; Sanjeevnagar Medical
& Health Employees' Cooperative Housing Society v. Mohd.
Abdul Wahab & Ors. (1996) 3 SCC 600; Tamil Nadu Housing
Board v. A Viswam (1996) 8 SCC 259; Bangalore B
Development Authority & Ors. v. R. Hanumaiah & Ors. (2005)
12 SCC 508 and State of Kera/a & Ors. v. VP Kurien & Ors.
;
(2005) 11 sec 493, relied on

1.4. Furthermore, the Collector under the Act was
acting as a statutory authority. When possession has
c
been shown to have been taken over not only in terms
of sub-section (1) s. 17 of the Act but also by grant of the
certificate and other documents, s. 114 of the Evidence
Act 1872 gets attracted. Once such a presumption is
-• drawn, the burden would be on the State to prove the
contra. The burden of proof could be discharged only by
D

adducing clear and cogent evidence. The records clearly
show that the possession had in fact been taken. (Para
35) (1111-D-F]
E
1.5. If the statement made by the respondents that
they were not in possession is found to be incorrect, legal
.,, steps as permissible in law may be taken. If the
respondents. and /or any other persons are found to be
in possession of the lands which were the subject matter F
of acquisition in terms of the notification u/s 4 of the Act,
appropriate steps for their eviction can be initiated. The
authorities of the State Government shall render all
cooperation to the appellant in this behalf. [Para 37] (1111-
H; 1112-A-C)
G
~
2. It is not a case where oral evidence was required
to be taken. There is no law that the High Court is denied
or debarred from entering into a disputed question of
fact. If a disputed-question can be determined on the
basis of the documents and I or affidavit, the High Court H
1088 SUPREME COURT REPORTS [2009] 10 S.C.R.

A may not ordinarily refuse to do so. In a given case, it may
~ •
also examine witnesses. (Para 33] (1102-F-H]

Smt. Gunwant Kaur & Ors. v. Municipal Committee,
Bhatinda & Ors. (1969) 3 SCC 769; Babubhai Mulibhai Patel
v. Nandlal Khodidas Barot (1974) 2 SCC 706 and T.N.
8
Housing Board v. Keeravani Ammal (2007) 9 SCC 255,
relied on.

3. The acquisition proceedings were initiated at the
instance of the appellant for setting up of a thermal power
c station, which had to be shifted to another site only
because the Central Government asked it to do so
keeping in view the ecological perspective in mind. It is,
therefore, permissible for the appellant to put the land in
question, which has vested in it, for another purpose as
D has been noticed by this court in Keerawani Ammal*. [Para j

38) [1112-C-E]

* T.N. Housing Board v. Keravani Ammal (2007) 9 SCC
255; Kasturi & Ors. v. State of Haryana (2003) 1 SCC 335
and Ravi Khu/far & Anr. v. Union of India & Ors. (2007) 5
E
sec 231, relied on.
Case Law Reference:

(1976) 1 sec 10 relied on Para 26

F (1998) 4 sec 387 referred to Para 26

(2005) 12 sec 489 referred to Para 26

(1970(2) sec 149 relied on Para 30

G (1993) 4 sec 1 relied on Para 30

(1996) 3 sec 1 relied on Para 30 ~·

(1996)3 sec 600 relied on Para 30

~
H
~
NATIONAL THERMAL POWER CORPORATION LTD. 1089
v. MAHESH DUTIA AND ORS.

~
(1996) a sec 259 relied on Para 31 A

(2005) 12 sec 508 relied on Para 31

(2005) 11 sec 493 relied on Para 31

(1969) 3 sec 769 relied on Para 33 B
(1974) 2 sec 106 relied on Para 33

(2001) 9 sec 255 relied on Para 34

(2003) 1 sec 335 relied on Para 34
c
(2001) 5 sec 231 relied on Para 38

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
6228-6229 of 2002.
;._ -~ From the Judgment & Order dated 21.7.1999 of the High D
Court of Judicature at Allahabad in Civil Misc. Writ Petition
Nos. 6826 of 1995 & 39622 of 1994.

Raju Ramachandran, Kailash Vasudev, Ranjit Kumar,
Rakesh Dwivedi, Geetanjali Mohan, Jamshed Bey, Parmanand
E
Gaur, Ankur Saigal, Bina Gupta, Gaurav Singh, Binu Tamta,
Mukti Chowdhary, Shantanu Krishnan, R.K. Gupta, Manoj Kr.
" Dwivedi (for Gunnam Venkateswara Rao), Naresh K. Sharma,
Kamlendra Mishra (NP), Ashok K. Srivastava (NP) for the
appearing parties.
F
The Judgment of the Court was delivered by

S.B. SINHA, J. 1. As all the cases involve similar
questions of fact and law, they were taken up for hearing
together and are being disposed of by this common judgment. G
...
-f
2. We may, however notice the fact of the matter involved
in Civil Appeal Nos.6228-6229 of 2002.

Appellant is a Government of India Undertaking (NTPC).
It is engaged in the business of generation of electricity. It, for H
1090 SUPREME COURT REPORTS [2009) 10 S.C.R.

A the purpose of setting up of a Thermal Power Station at Village
Sarna in the District of Ghaziabad in the State of Uttar Pradesh, '
submitted a proposal to the State of Uttar Pradesh for
acquisition of lands situated in Village Dadri, Tehsil Ghaziabad,
District Ghaziabad.
B
3. Pursuant or in furtherance of the said request, a
Notification was issued in terms of Section 4 of the Land
Acquisition Act, 1894 (for short 'the Act') notifying the intention
of State to acquire 105 Bighas 2 Biswas and 16 Biswanis
(equivalent to 65.7125 acres) of lands situated at the
c aforementioned village. It was published in the Official Gazette
on 8th September, 1984

~4. On the premise that generation of electricity was
extremely urgent and National Capital Region faced acute
>I
D shortage of electricity, the emergency provisions contained in.
Sections 17(1) and 17(4) of the Act were invoked. A declaration
in terms of Section 6 of the Act was issued on 26th September,
1984. As the provisions of sub-section (4) of Section 17 of the
Act were applied, notices were issued on 27th October, 1984
E under Section 9 of the Act to the claimants for payment of
compensation in respect of the acquired land.
/I.
5. However, admittedly prior to taking over possession of
land under the emergency powers, the Collector disbursed 80%
of the amount of compensation determined in terms of Section
F
17(3A) of the Act. A possession certificate was issued by the
Collector on 16th January, 1984, which reads as under:-

"POSSESSION CERTIFICATE

G LAND PERMANENT REQUIRED FOR THE PLANNED
Industrial Construction of NTPC Plant. District Ghaziabad ~-

through the NTPC Ltd., Ghaziabad

Certified that I on behalf of the Collector, Ghaziabad
have on this day the 16.11.1984 taken over the
H
NATIONAL THERMAL POWER CORPORATION LTD.1091
v. MAHESH DUTIA AND ORS. [S.B. SINHA, J.]
possession of the land detailed below comprising an area A
_..
105 B - 2Bs-16B or 6751.3 acres and (1.ot legible (name
not ligible) of D.L.A.O's Office to hand over the possession
of the same land to the NTPC Ltd., Ghaziabad.

Through Sri. D.V. (not ligible), village Sarna, Muradnagar, B
Pargana Jalalabad, District, Ghaziabad.

Sd/-

(District Land Acquisition Officer, Ghaziabad)

Notification u/s. 6 :- 7574/P-3-84-23-26
c
Land P-84_264-84 published on 29.9.84.

Certified that I on behalf of the Manager, NTPC ltd.,
Ghaziabad have to take over possession of the D
~
abovementioned land through
today."

Khasra numbers and area of the plots, possession whereof
had been taken, were specified therein.
E
6. Despite the same, the appellant contended that it had
obtained the requisitioned physical possession of land
• admeasuring 10.215 acres only and the rest of the land
continued to remain in possession of the land owners.
F
It is stated that the Ministry of Environment made
recommendations that the choice of place for setting up a
Thermal Power Station, having regard fo its proximity to the
National Capital being incorrect, the site thereof should be
shifted. Pursuant thereto or in furtherance thereof, the site of
G
the plant was shifted from Sarna, Murad Nagar to Dadri Tehsil.
~ However, the Land Acquisition Officer despite the same
proceeded to determine the amount of compensation payable
for the acquisition of land.

7. An Award was made on 24th September, 1986. H
1092 SUPREME COURT REPORTS [2009] 10 S.C.R.

A A reference in terms of Section 18 of the Act was made
which was answered by the learned Additional District Judge,
Ghaziabad by a order dated 22nd October, 1993 determining
the amount of compensation @ Rs.155/- per sq. yards and
Rs.115/- per sq. yds. in respect of two references made
B separately before it. .

8. First appeals were preferred thereagainst in February,
1984 by NTPC before the High Court. Inter alia on the premise
that possession of the entire land of 65. 713 acres had not been
obtained, the District Magistrate was approached for issuance
C of a notification denotifying the acquisition of the balance area
i.e. for withdrawal of acquisition of land admeasuring 55.498
acres.

9. By its letter dated 24th February, 1986, NTPC submitted·
D a proposal as regards denotification of the land, which reads
as under:- •
"Kindly refer to our letter No.08/GM/13 dated January 8,
1986, on the above subject, addressed to District Land
Acquisition Officer and copy endorsed to you (copy
E
enclosed for ready reference). In continuation of para 2 of
that letter this is to inform you that there are five cases in
which delivery of possession is shown to have been given.
These are of villages Sarna, Khurrampur, Sultanpur,
Jalalpur and Mohiuddinpur. In Sarna, advance
F compensation has been paid to most of the persons
affected while in Khurrampur only a few persons have been
paid the advance compensation. In cases of Sultanpur,
Jalalpur and Khurrampur villages - we did not get physical
possession and the land owners continue to be in
G possession their lands even now. In many cases, their
crops are standing on the land in question. Further, it may
be added that the Land Acquisition Amendment Act 1984
came into force w.e.f. 24.9.1984. As per sub-section (3A)
to Section 17 of the Land Acquisition Act it is made
H obligatory ·that before taking possession of any land the
NATIONAL THERMAL POWER CORPORATION LTD. 1093
v. MAHESH DUTTA AND ORS. [S.B. SINHA, J.]
Collector shall pay 80% of the compensation to the A
interested persons. This mandatory provision not having
been complied with, the delivery of possession on paper
has no legal force and that is why land owners did not allow
NTPC to take possession of these lands. Any possession
without such 80% compensation are likely to be vitiated B
even if the land is proposed to be acquired. Similarly, in
the village of Mohiuddinpur Hissali, no compensation has
been paid.

It is understood that some mutations in respect of C
lands of these villages in favour of NTPC have been made
in the revenue records. Obviously there appears to be
some discrepancy. Since no legally valid possession has
been given to NTPC nor land owners have allowed NTPC
to take possession of these lands, mutations in revenue
records made need to be set right by necessary correction D
proceedings.

It is, therefore, requested that the possession
certificates of these villages may please be cancelled and
original entries in the revenue records may be ordered to E
be restored .. "

10. The said proposal was forwarded to the
Commissioner and Director (Land Acquisition), Directorate,
Board of Revenue by the District Magistrate by his letter dated
F
11th August, 1994.

NTPC issued a clarification to the Commissioner and
Director, Board of Revenue, by its letter dated 13th August,
2004. On or about 18th August, 1994 an inspection was carried
by the Land Acquisition Amin, Naib Tehsildar together with the F
representatives of NTPC and as per the report submitted
pursuant thereto, the appellant is said to have been found in
possession of only 10.215 acres of land.

11. On 11th November, 1994 the State of U. P. issued a H
1094 SUPREME COURT REPORTS (2009] 10 S.C.R.

A Notification in terms of Section 48 of the Act.

Aggrieved, respondents filed a writ application before the
High Court on or about 29th August, 1995 and a Division Bench
of the High Court stayed the consequential effect of the
B Notification dated 11th November, 1994. On or about 9th
September, 1997 the appellant filed an application for vacating
the stay which having been refused, a Special Leave Petition
was filed before this Court, which was dismissed by an order
dated 14th October, 1997.

C By reason of a judgment and order dated 21st July, 1998
the said writ petition was allowed.

12. Indisputably on the same day, the same Bench passed
judgment in the First Appeals preferred by appellant (NTPC)
0 against the order of the Reference Court dated 22nd October, ,
1993. We shall deal with the said matter separately.

13. Mr. Raju Ramachandran, learned senior counsel
appearing on behalf of the NTPC would contend that although
in the event possession had been taken by the Collector from
E the land owners, Section 48 of the Act will have no application
but in view of the fact that possession of 55.498 acres of land
had not been delivered in favour of NTPC and merely a
symbolic possession had been delivered, the High Court must
be held to have committed a serious error in passing the
F impugned judgment.

14. Mr. Ranjit Kumar, learned senior counsel appearing on
behalf of the respondents, on the other hand, would contend :-

(i) Having regard to the provisions contained in
G Section 17(1) of the Act, as the vesting of the
acquired land takes place immediately, the
impugned Notification dated 1th November, 1994
has rightly been held to be illegal and without
jurisdiction.
H
- NATIONAL THERMAL POWER CORPORATION LTD. 1095
v. MAHESH DUTIA AND ORS. IS.B. SINHA, J.]
(ii) Having regard to the certificate of possession A
issued by the Col!ector on 1Bth November, 1984
under the provisions of the Act, stating possession
of entire land had been taken and the details thereof
having been mentioned in the said certificate itself,
it is too late in the day for the appellanUNTPC to B
contend that possession of a major portion of the
land had was not taken over.

(iii) The fact that the possession of the entire land had
been taken over not only would appear from the
materials brought on record during the land C
acquisition proceedings culminating in passing of
the Award but also from the award of the Reference
Court as also the judgment of the High Court in the
First Appeals and in that view of the matter, it would
not be correct to contend that the High Court could D
not have entered into such disputed questions of
fact, particularly when the validity or otherwise of the
proceedings is not in question.

15. A Notification under Section 4 of the Act was issued. E
Emergency provisions contained in Section 17 of the Act were
resorted to. Sub-sections (1), (3A) and 4 of the Act read as
under:-

"17. Special powers in cases of urgency.-
F
(1) In cases of urgency, whenever the Appropriate
Government so directs, the Collector, though no such
award has been made, may, on the expiration of fifteen
days from the publication of the notice mentioned in
section 9, sub-section (1), 1 [take possession of any waste G
or arable land needed for a public purpose]. Such land
shall thereupon vest absolutely in the Government, free
from all encumbrances.

(2)
H
A
1096

(3)
SUPREME COURT REPORTS [2009] 10 S.C.R.
-
(3A) Before taking possession of any land under sub-
section (1) or sub-section (2), the Collector shall, without
prejudice to the provisions of sub-section (3),-
B (a) tender payment of eighty per centum of the
compensation for such land as estimated by him to
the persons interested entitled thereto, and

(q) pay it to them, unless prevented by some one
c or more of the contingencies mentioned in section
31, sub-section (2), and where the Collector is so
prevented, the provisions of section 31, sub-section
(2), (except the second proviso thereto), shall apply
as they apply to the payment of compensation
D under that section.

(4) In the case of any land to which, in the opinion of the
appropriate Government, the provisions of sub-section (1)
or sub-section (2) are applicable, the appropriate
Government may direct that the provisions of section SA
E shall not apply, and, if it does not so direct, a declaration
may be made under section 6 in respect of the land at any
time 4 [after the date of the publication of the notification
under section 4, sub-section (1)."

F 16. Indisputably the said provisions were been taken
recourse to and, thus, the lands under acquisition vested
absolutely in the Government.

17. Concedingly, a declaration in terms of Section 6 of the
Act was issued whereafter notices to persons interested under
G Section 9 thereof had also been issued. Award had also been
published.

Section 16 of the Act providing for taking over possession
of the land after making the Award would not be applicable in
H this case as possession is said to have already been taken
NATIONAL THERMAL POWER CORPORATION LTD.1097
v. MAHESH DUTTA AND ORS. [S.S. SINHA, J.]
over in,terms of sub-section (1) of Section 17 thereof. A

It is in the aforementioned backdrop of factual matrix, the
poweri of the State to withdraw the Notification of acquisition
as envisaged under Section 48 of the Act falls for our
consideration. B
The said provision is as under:-

"Section 48 - Completion of acquisition not compulsory,
but compensation to be awarded when not completed
c
(1) Except in the case provided for in 1section 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 D
-~ •
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 E
him in the prosecution of the proceedings under this Act
relating to the said land.

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

18. It is a well settled proposition of law that in the event
possession of the land, in respect whereof a Notification had
been issued, had been taken over, the State would be denuded
of its power to withdraw from the acquisition in terms of Section G
48 of the Act.

19. Whether actual or symbolic possession had been taken
over from the land owners is essentially a question of fact.
Taking over of possession in terms of the provisions of the Act H
1098 SUPREME COURT REPORTS [2009] 10 S.C.R.

A would, however, mean actual possession and not symbolic
possession. The question, however, is as to whether the finding
of fact arrived at by the High Court that physical possession,
indeed, had been taken over by the Collector is correct or not.

20. We have noticed hereinbefore the background facts.
B
The emergency provisions were resorted to. Even 80% of the
compensation had been paid way back in 1984. Had
possession of the vacant land been not taken, the question of
payment of 80 % of compensation would not have arisen. All
other legal requirements to invoke the said provision have been
c complied with.

21. Mr. Raju Ramachandran, however, would draw our
attention to a letter dated 24.2.1986 issued by the appellant to
the District Magistrate to contend that even payment of 80%
D of the compensation had not made and, thus, the purported
delivery of possession was merely a paper transaction. Our
attention had further been drawn to the written statement filed
-
on behalf of the appellant before the reference court, which
reads as under :
E
"That out of the total acquired area in question the
respondent utilized only a portion of the land by
construction of their Satellite building while remaining area
could not be put into use by the respondent, since the land
is in actual physical possession of the land owners and
F they are deriving all the benefits from the land thereof and
the respondent is having only a symbolic possession over
the same."

22. We, however, have not been able to persuade
G ourselves to agree with the aforementioned submissions. The
OfVcers of the appellant themselves were parties in regard to
the process of actual physical possession obtained on its behalf
by the Collector.

23. Even in the award made by the Special Land
H
NATIONAL THERMAL POWER CORPORATION LTD.1099
v. MAHESH DUTIA AND ORS. [S.B. SINHA, J.]
Acquisition Collector, the invocation of the provisions of Section A
17 of the Act as also obtaining of possession of the land in
question had clearly been found.

We may notice some of the statements recorded therein :

"10. Whether Sec.17 is in force : Yes B

11. Date of the right : 16.11.84

xxx xxx xxx
18. Amount of Interest : 9% payable from 16.11.84 c
i.e. from the date of
acquisition 15% further from
that date payable to and
owner."
D
We may quote hereinbelow the relevant portions from the
said award:

"4.12% additional from 8.9.84
i.e. from the date of
notification till date E
of possession i.e. on
16.11.84 Rs.1,46,531.69"

24. From a perusal of the award, therefore, it is evident
that not only the provisions of Section 17 of the Act were found F
to have been implemented but even interest had been granted
from the date of acquisition, namely, from the date of taking
over of possession. Interest had also been granted in terms of
Section 23A of the Act from the date of notification till the date
of actual taking over of possession. The Reference Court also, G
in its judgment, held :

"(2) The petitioners will get 12% per annum as additional
. amount on the above market value for the period
commencing from the date of publication of the notification H
1100 SUPREME COURT REPORTS (2009] 10 S.C.8.

A u/s. 4(1) dated 6.9.84 to the date of possession dated
16.11.84."

25. In the memo of appeal preferred by the appellant
before the High Court a statement was made that the
possession of the land was taken by invoking Section 17 of the
8
Act on 16.11.1984 and, thus, interest at the rate of 15% per
annum on the excess amount under the provisions of Section
28 of the Act would be payable only in the case where such
excess payment had -not been made before the expiry of one
year period from the date. on which the possession has been
C taken and as determined by the Court. In view of the stand taken
by the appellant before the Land Acquisition Authorities as also
the reference court and the High Court, in our opinion, it is
estopped and precluded from raising a plea contra. The
Reference Court, in paragraph 4 of its judgment, also noticed
D that the possession of the land has been taken over on
16.11.1984. No objection was taken before the Reference
Court that possession had not been taken and, thus, interest
was not payable. No issue was also framed in that regard.

E Even before us, the only ground taken was that the land
could not be put to use which is a non-issue.

26. Strong reliance has been placed upon a decision of
this Court in Ba/want Narayan Bhagde v. M.D. Bhagwat, [AIR
1975 SC 1967 = (1976) 1 SCC 70 ], wherein it has been held
F

"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
G 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
H Act contemplates as a necessary condition of vesting of
NATIONAL THERMAL POWER CORPORATION LTD. 1101
v. MAHESH DUTTA AND ORS. [S.B. SINHA, J.]
the land in the Government is the taking of actual A
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 B
possession of land. We shoulp 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 c
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 D
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 E
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
t
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 F
transaction of taking of mere paper possession, without
the occupant or the owner ever corning to know of it."

This decision, therefore, itself is an authority for the
proposition that no absolute rule in this behalf can be laid down. _G

... In Larsen & Toubro Ltd. v. State of Gujarat & Ors. [(1998)
4 SCC 38i7] and P.K. Kalburqui v. State of Karnataka & Ors.
[(2005) 12 sec 489], the same view has been reiterated.

27. These decisions, as noticed hereinbefore, do not lay H
1102 SUPREME COURT REPORTS [2009] 10 S.C.R.

A 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.

28. Vl'hen possession is to be taken over in respect of the
B
fallow or Patit land, a mere intention to do so may not be
enough. It is, however, the positive stand by the appellant that
the lands in question are agricultural land and crops used to
be grown therein. If the lands in question are agricultural lands,
..
not only actual physical possession had to be taken but also
c they were required to be properly demarcated. If the land had
standing crops, as has been contended by Mr. Raju
Ramachandran, steps in relation thereto were required to be
taken by the Collector. Even in the said certificate of
possession, it had not been stated that there were standing
D crops on the land on the date on which possession was taken.
We may notice that delivery of possession in respect of
immoveable property should be taken in the manner laid down
in Order XXI Rule 35 of the Code of Civil Procedure.

E 29. It is beyond any comprehension that when possession
is purported to have been taken of the entire acquired lands,
actual possession would be taken only of a portion thereof. The
certificate of possession was either correct or incorrect. It
cannot be partially correct or partially incorrect. Either the
F possession had actually been delivered or had not been
delivered. It cannot be accepted that possession had been
delivered in respect of about 10 acres of land and the
possession could not be taken in respect of the rest 55 acres
of land. When the provisions of Section 17 are taken recourse
to, vesting of the land takes effect immediately.
G
30. Another striking feature of the case is that all the actions ,.
had been taken in a comprehensive manner. The Collector in
his certificate of possession dated 16th November, 1984 stated
that the possession had been taken over in respect of the entire
H land; the details of the land and the area thereof had also been
NATIONAL THERMAL POWER CORPORATION LTD. 1103
v. MAHESH DUTTA AND ORS. [S.B. SINHA, J.]

mentioned in the certificate of possession; even NTPC in its A
letter dated 24th February, 1986 stated that possession had
not been delivered only in respect of land situated in four villages
mentioned therein. Indisputably NTPC got possession over
10.215 acres of land. It raised constructions thereover. It is
difficult to comprehend that if the NTPC had paid 80% of the B
total compensation as provided for under sub-section (3A) of
Section 17 of the Act, out of 65. 713 acres of land it had
obtained possession only in respect of about 10.215 acres of
land and still for such a long time it kept mum. Ex-facie, therefore,
it is difficult to accept that merely symbolic possession had c
been taken.

In Lt. Governor of Hmachal Pradesh & Anr. v. Sri Avinash
:
Sharma [(1970 (2) SCC 149], this Court has stated the law,
thus:
D
>.
"But these observations do not assist the case of the
appellant. It is clearly implicit in the observations that after
possession has been taken pursuant to a notification
under Section 17(1) the land is vested in the Government,
and the notification cannot be cancelled under Section 21 E
of the General Clauses Act, nor can the notification be
withdrawn in exercise of the powers under Section 48 of
< t the Land Acquisition Act. Any other view would enable t~e
I State Government to circumvent the specific provision by
relying upon a general power. When possession of the F
land is taken under Section 17(1), the land vests in the
Government. There is no provision by which land statutorily
vested in the Government reverts to the original owner by
mere cancellation of the notification."

The said view was affirmed in Satendra Prasad Jain & G
Ors. v. State of UP. & Ors. [(1993) 4 SCC 369], in the context
of applicablility of Section 11A of the Act, it was stated :

"When Section 17(1) is applied by reason of urgency,
Government takes possession of the land prior to the H
1104 SUPREME COURT REPORTS [2009] 10 S.C.R.

A making of the award under Section 11 and thereupon the
owner is divested of the title to the land which is vested in
the Government. Section 17(1) states so in unmistakable
terms. Clearly, Section 11-A can have no application to
cases of acquisitions under Section 17 because the lands
B have already vested in the Government and there is no
provision in the said Act by which land statutorily vested
in the Government can revert to the owner."

In Pratap & Anr. v. State of Rajasthan & Ors. [(1996) 3 •
SCC 1], a Three Judge Bench of this Court opined as under:
c
"12. The provisions of sub-section (4) of Section 52 are
somewhat similar to Section 17 of the Land Acquisition
Act, 1894. Just as publication of a notification under
Section 52( 1) vests the land in the State, free from all
D encumbrances, as provided by Section 52(4), similarly
when possession of land is taken under Section 17(1) the
land vests absolutely in the Government free from all
encumbrances. A question arose before this Court that if
there is a non-compliance with the provisions of Section
E 5-A and an award is not made in respect to the land so
acquired, would the acquisition proceedings lapse. In
Satendra Prasad Jain v. State of U.P. this Court held that
once possession had been taken under Section 17(1) and
the land vested in the Government then the Government
could not withdraw from acquisition under Section 48 and
F
the provisions of Section 11-A were not attracted and,
therefore, the acquisition proceedings would not lapse on
failure to make an award within the period prescribed
therein. It was further held that non-compliance of Section
17(3-A), regarding part payment of compensation before
G taking possession, would also not render the possession
illegal and entitle the Government to withdraw from
acquisition. The aforesaid principle has been reiterated by
this Court in P. Chinnanna v. State of A.P. and Awadh
Bihari Yadav v. State of Bihar. In view of the aforesaid
H
NATIONAL THERMAL POWER CORPORATION LTD.1105
v. MAHESH DUTTA AND ORS. [S.B. SINHA, J.]
,. ratio it follows that the provisions of Section 11-A are not A
attracted in the present case and even if 1t be assumed
that the award has not been passed within the stipulated
period, the acquisition of land does not come to an end."

In Sanjeevnagar Medical & Health Employees'
8
Cooperative Housing Society v. Mohd. Abdul Wahab & Ors.
[(1996) 3 sec 600], it was held :

"... In Satendra Prasad Jain v. State of UP. 6 , the question
arose: whether notification under Section 4(1) and the
declaration under Section 6 get lapsed if the award is not C
made within two years as envisaged under Section 11-A?
A Bench of three Judges had held that once possession
was taken and the land vested in the Government, title to
the land so vested in the State is subject only to
determination of compensation and to pay the same to the D
owner. Divesting the title to the land statutorily vested in
the Government and reverting the same to the owner is not
contemplated under the Act. Only Section 48(1) gives
power to withdraw from acquisition that too before
possession is taken. That question did not arise in this E
case. The property under acquisition having been vested
in the appellants, in the absence of any power under the
Act to have the title of the appellants divested except by
exercise of the power under Section 48(1 ), valid title
cannot be defeated. The exercise of the power to quash F
the notification under Section 4(1) and the declaration
under Section 6 would lead to incongruity."

31. Yet again, in Tamil Nadu Housing Board v. A.
Viswam(Dead) by Lrs. [(1996) 8 SCC 259], this Court has
--1·
categorically laid down that when the accepted mode of taking G
possession of the acquired land is resorted to, that would
constitute taking possession of the land.

The said principle has been reiterated in Bangalore
Development Authority & Ors. v. R. Hanumaiah & Ors. [(2005) H
1106 SUPREME COURT REPORTS [2009] 10 S.C.R.

A 12 sec 508], in the following terms :

"43. In our considered view, the Division Bench has erred
in holding that the State Government could release the
lands in exercise of its power under Section 48 of the Land
Acquisition Act, 1894 from the acquisition."
B
It has further been held :
,.
"46. The possession of the land in question was taken in
the year 1966 after the passing of the award by the Land
c Acquisition Officer. Thereafter, the land vested in the
Government which was then transferred to CITB,
predecessor-in-interest of the appellant. After the vesting
of the land and taking possession thereof, the notification
for acquiring the land could not be withdrawn or cancelled
D in exercise of powers under Section 48 of the Land
Acquisition Act. Power under Section 21 of the General
Clauses Act cannot be exercised after vesting of the land
statutorily in the State Government."

{See also State of Kera/a & Ors. v. V.P. Kurien & Ors.
E [(2005) 11 sec 493]}.

32. The High Court, therefore, in our opinion, was correct
in its view.

33. We may now consider the question as to whether the
F
issue as to whether possession of the acquired land had
actually been taken over or not being a disputed question of
fact could not have gone into by the High Court. It is not a case
where oral evidence was required to be taken. There is no law
that the High Court is denied or debarred from entering into a
G disputed question of fact. The issue will have to be determined
1'-
keeping in view the fact situation obtaining in each case. If a
disputed question can be determined on the basis of the
documents and/or affidavit, the High Court may not ordinarily
refuse to do so. In a given case, it may also examine witnesses.
H
NATIONAL THERMAL POWER CORPORATION LTD. 1107
.... v. MAHESH DUITA AND ORS. [S.B. SINHA, J.]

~l In Smt. Gunwant Kaur & Ors. v. Municipal Committee, A
Bhatinda & Ors. [(1969) 3 SCC 769], it was t.eld :

"14. The High Court observed that they will not determine
disputed question of fact in a writ petition. But what facts
were in dispute and what were admitted could only be
B
determined after an affidavit in reply was filed by the State.
The High Court, however, proceeded to dismiss the
petition in limine. The High Court is not deprived of its
jurisdiction to entertain a petition under Article 226 merely
because in considering the petitioner's right to relief
questions of fact may fall to be determined. In a petition
c
under Article 226 the High Court has jurisdiction to try
issues both of fact and law. Exercise of the jurisdiction is,
it is true, discretionary, but the discretion must be
exercised on sound judicial principles. When the petition
>
raises questions of fact of a complex nature, which may D
for their determination require oral evidence to be taken,
and on that account the High Court is of the view that the
_,,,. dispute may not appropriately be tried in a writ petition,
the High C.ourt may decline to try a petition. Rejection of a
petition in limine will normally be justified, where the High E
Court is of the view that the petition is frivolous or because
of the nature of the claim made dispute sought to be
agitated, or that the petition against the party against
whom relief is claimed is not maintainable or that the
dispute raised thereby is such that it would be in F
appropriate to try it in the writ jurisdiction, or for analogous
,. reasons.

15. From the averments made in the petition filed by the
appellants it is clear that in proof of a large number of
G
allegations the appellants relied upon documentary
1
evidence and the only matter in respect of which conflict
of facts may possibly arise related to the due publication
of the notification under Section 4 by the Collector.
' H
16. In the present case, in our judgment, the High Court
1108 SUPREME COURT REPORTS [2009] 10 S.C.R

A was not justified in dismissing the petition on the ground
that it will not determine disputed question of fact. The
High Court has jurisdiction to determine questions of fact,
even if they are in dispute and the present, in our
judgment, is a case in which in the interests of both the
B parties the High Court should have entertained the petition
and called for an affidavit in reply from the respondents,
and should have proceeded to try the petition instead of
relegating the appellants to a separate suit."

Such a direction has been issued, as noticed hereinbefore,
C even in a land acquisition matter.

Yet again, in Babubhai Muljibhai Patel v. Nandla/
Khodidas Barot [(1974) 2 SCC 706], this Court has held :

D "10. It is not necessary for this case to express an opinion
on the point as whether the various provisions of the Code
of Civil Procedure apply to petitions under Article 226 of
the Constitution. Section 141 of the Code, to which
reference has been made, makes it clear that the
provisions of the Code in regard to suits shall be followed
E
in all proceedings in any court of civil jurisdiction as far as
it can be made applicable. The words "as far as it can be
made applicable" make it clear that, in applying the various
provisions of the Code to proceedings other than those of
a suit, the court must take into account the nature of those
F proceedings and the relief sought. The object of Article 226
is to provide a quick and inexpensive remedy to aggrieved
parties. Power has consequently been vested in the High
Courts to issue to any person or authority, including in
appropriate cases any government, within the jurisdiction
G of the High Court, orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari. It is plain that if the procedure of
a suit had also to be adhered to in the case of writ
petitions, the entire purpose of having a quick and
H inexpensive remedy would be defeated. A writ petition
-.,
NATIONAL THERMAL POWER CORPORATION LTD. 1109
v. MAHESH DUTTA AND ORS. [S.B. SINHA, J.]
under Article 226, it needs to be emphasised, is essentially A
J
different from a s~it and it would be incorrect to assimilate
., and incorporate the procedure of a suit into the
~

proceedings of a petition under Article 226. The High Court
is not deprived of its jurisdiction to entertain a petition
under Article 226 merely because in considering the 8
petitioner's right of relief, questions of fact may fall to be
determined. In a petition under Article 226 the High Court
has jurisdiction to try issues both of fact and law. Exercise
of the jurisdiction is no doubt discretionary, but the
discretion must be..exercised on sound judicial principles. c
When the petition raises complex questions of fact, which
may for their determination require oral evidence to be
taken, and on that account the High Court is of the view
that the dispute should not appropriately be tried in a writ
petition, the High Court may decline to try a petition (see
y D
Gunwant Kaur v. Bhatinda Municipality). If, however, on
consideration of the nature of the controversy, the High
Court decides, as in the present case, that it should go into
a disputed question of fact and the discretion exercised
by the High Court appears to be sound and in conformity
E
with judicial principles, this Court would not interfere in
appeal with the order made by the High Court in this
,, respect."

In Balmokand Khatri (supra), it has been observed :-
F
"4. It is seen that the entire gamut of the acquisition
proceedings stood completed by 17-4-1976 by which date
possession of the land had been taken. No doubt, Shri
Parekh has contended that the appellant still retained their
possession. It is now well-settled legal position that it is
G
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
H
1110 SUPREME COURT REPORTS (2009] 10 S.C.R.

A of the land. Subsequent thereto, the retention of
possession would tantamount only to illegal or unlawful
possession."

34. Recently the question came up for consideration
before a Division Bench of this Court in T.N. Housing Board
8
v. Keeravani Ammal, ((2007) 9 SCC 255], wherein it was
held:-

"9. On the facts pleaded it is doubtful whether the
Government can withdraw from the acquisition, since the
C case of the State and the H<n.ising Board is that
possession has been taken and plans finalised to fulfil the
purpose for which the acquisition was made. There is no
plea in th.e writ petition that a request for reconveyance
was made in terms of Section 48-B of the Act as amended
D in the State of Tamil Nadu."

It was furthermore held :-

"15. We may also notice that once a piece of land has
been duly acquired under the Land Acquisition Act, the land
E becomes the property of the State. The State can dispose
of the property thereafter or convey it to anyone, if the land
is not needed for the purpose for which it was acquired,
only for the market value that may be fetched- for the
property as on the date of conveyance. The doctrine of
F public trust would disable the State from giving back the
property for anything less than the market value. In State
of Kera/av. M. Bhaskaran PillaP in a similar situation, this
Court observed:

G "The question emerges whether the Government
can assign the land to the erstwhile owners? It is
settled law that if the land is acquired for a public
purpose, after the public purpose was achieved, the
rest of the land could be used for any other public
purpose. In case there is no other public purpose
H
I
- NATIONAL THERMAL POWER CORPORATION LTD. 1111
v. MAHESH DUTTA AND ORS. [S.B. SINHA, J.]
for which the land is needed, then instead of A
J
disposal by way of sale to the erstwhile owner, the
land should be put to public auction and the amount
fetched in the public auction can be better utilised
for the public purpose envisaged in the Directive
Principles of the Constitution. In the present case, B
what we find is that the executive order is not in
consonance with the provision of the Act and is,
-+ therefore, invalid. Under these circumstances, the
Division Bench is well justified in declaring the
executive order as invalid. Whatever assignment is c
made, should be for a public purpose. Otherwise,
the land of the Government should be sold only
through the public auctions so that the public also
gets benefited by getting a higher value."
)'
35. Furthermore the Collector under the Act was acting as D
a statutory authority. When possession has been shown to have
been ta~en over not only in terms of sub-section (1) of Section
17 of the Act but also by grant of the certificate and other
documents, illustration (e) of Section 114 of the Evidence Act
1872, must be held to be applicable. Once such a presumption E
is drawn the burden would be on the State to prove the contra.
The burden of proof could be discharged only by adducing clear
and cogent evidence. Not only the aforementioned documents
but even the judicial records clearly show that the possession
had in fact been taken. F

36. Mr. Raju Ramachandran, however, made an alternative
submission before us that this Court, in exercise of its
jurisdiction under Article 142 of Constitution of India, may issue
necessary directions so as to put a quietus to the entire matter.
G
This Court cannot foresee all the eventualities.
1'
37. However, before us Mr. Ranjit Kumar, learned senior
counsel appearing on behalf of the respondents, when
questioned, categorically stated that in view of the statement
made in the counter affidavit, the positive case of the H
1112 SUPREME COURT REPORTS [2009] 10 S.C.R.
-
A respondents is that they had not been in possession.

If the aforementioned statement made by the respondents
is found to be incorrect, legal steps as is permissible in law
may be taken. Furthermore, if the respondents and/or any other
person are found to be in possession of the lands which were
8
the subject matter of acquisition in terms of the notification under
Section 4 of the Act, appropriate steps for eviction therefor can
be initiated. It goes without saying that the authorities of the
State of Uttar Pradesh shall render all cooperation to the
appellant in this behalf.
c
38. It is furthermore neither in doubt nor in dispute that the
initiation of the acquisition proceedings at the instance of the
appellant was for setting up of a thermal power station. It had
to be shifted to another site only because the Central
D Government asked it to do so keeping in view the ecological
perspective in mind. It is, therefore, permissible for the appellant
to put the land in question which has vested in it for another
purpose which would come within the purview of any public
purpose as has been noticed by this Court in Khatri (supra)
E and for any other purpose as has been noticed by this Court in
Keerwani Ammal (Supra)

Yet again in Kasturi & Ors. v. State of Haryana [(2003) 1
SCC 335], this Court has held :

F "12. If the land was not used for the purpose for which it
was acquired, it was open to the State Government to take
action but that did not confer any right on the respondents
to ask for restitution of the land. As already noticed, the
State Government in this regard has already initiated
G proceedings for resumption of the land. In our view, there
arises no question of any unjust enrichment to the appellant
"
Company."

In Ravi Khullar & Anr. v. Union of India & Ors. [(2007) 5
H sec 231], it was contended :
NATIONAL THERMAL POWER CORPORATION LTD. 1113
v. MAHESH DUTTA AND ORS. [S.B. SINHA, J.]
"16. The learned Additional Solicitor General appearing on A
behalf of the respondents submitted that having regard to
the authorities on the subject the question is no longer res
integra. It is not as if lands acquired for a particular public
purpose cannot be utilised for another public purpose. He
contended that as long as the acquisition is not held to be B
mala fide, the acquisition cannot be invalidated merely
because the lands which at one time were proposed to be
utilised for a particular public purpose, were later either in
whole or in part, utilised for some other purpos~. though a
public purpose. He, therefore, submitted that some change c
of user of the land, as long as it has a public purpose,
would not invalidate the acquisition proceeding which is
otherwise valid and legal."

It was held:
D
"23. Referring to the facts of the instant case, it cannot be
disputed that the planned development of Delhi for which
purpose the land was acquired under Section 4 of the Act
is wide enough to include the development and expansion
of an airport within the city of Delhi. Thus it cannot be said E
that the land is actually being utilised for any purpose other
than that for which it was acquired. The only difference is
that whereas initially the development work would have
been undertaken by DDA or any other agency employed
by it, after the constitution of IAAI, the said development F
work had to be undertaken by the newly constituted
authority. Thus there has been no change of purpose of
the acquisition. All that has happened is that the
development work is undertaken by another agency since
constituted, which is entrusted with the special task of G
maintenance of airports. Since the said authority was
·• constituted several years after the issuance of the
notification under Section 4, the acquisition cannot be
invalidated only on the grou,nd that the public purpose is
sought to be achieved through another agency. This, as
H
1114 SUPREME COURT REPORTS [2009) 10 S.C.R.

A we have noticed earlier, was necessitated by change of
circumstances in view of the creation of the authority i.e.
IAAI. Moreover, since there is no change of public purpose
for which the acquired land is being utilised, the acquisition
cannot be invalidated on that ground. The purpose for
B which the lands are being utilised by a governmental
agency is also a public purpose and as we have noticed
earlier, would come within the ambit of the public purpose
declared in Section 4 notification. Therefore, the
acquisition cannot be challenged on the ground that the
c acquired lands are not being utilised for the declared public
purpose. Having regard to the facts of the case it cannot
be contended, nor has it been contended, that the
notification under Section 4 of the Act was issued mala
fide."
D 39. For the reasons aforementioned, the appeals, being
devoid of any merit, are dismissed subject to the observations
made hereinbefore with costs. Counsel fee assessed at
Rs.50,000/- in each of these appeals.

R.P. Appeals dismissed.

'

•