Holding

The Supreme Court held that possession of the acquired land was taken by the Land Acquisition Officer, vesting the land in the State under Section 16 of the Land Acquisition Act, 1894, and therefore the Tamil Nadu Housing Board, as the true owner, could not be enjoined.

Summary

The Tamil Nadu Housing Board acquired 339 acres of land, including a one‑acre parcel earmarked for a public park, under the Land Acquisition Act, 1894. The original owners, represented by A. Viswam (deceased), claimed they remained in possession and sought a perpetual injunction against the Board. The Board argued that the Land Acquisition Officer had taken possession of the entire notified land, made an award on 28 February 1966, and deposited compensation under Section 30, thereby vesting title in the State under Section 16. The Supreme Court examined whether actual possession had been taken and held that the LAO’s inspection and delivery of possession to the Board satisfied the statutory requirement of possession. Consequently, the land was deemed vested in the Board (and later the Municipal Corporation), and an injunction could not be granted against the true owner. The Court set aside the High Court and appellate court judgments and restored the trial court’s decree, allowing the appeals.

Issues considered

Whether the Land Acquisition Officer actually took possession of the disputed parcel, thereby vesting it in the State under Section 16 of the Land Acquisition Act, 1894.
Whether a perpetual injunction can be granted against the Tamil Nadu Housing Board when the land has been lawfully acquired for public purpose.
Whether the High Court erred in concluding that the acquisition had lapsed due to alleged lack of possession.
Effect of Section 30 compensation deposit and Section 12 notice on the title of the acquired land.

Legislation cited

Indian Evidence Act, 1872s. 114(e)
Land Acquisition Act, 1894s. 11, s. 12, s. 16, s. 18, s. 30, s. 4(1), s. 51, s. 6

Subjects

land acquisitionpossessioncompensationinjunctionpublic purposeSection 16Tamil Nadu Housing BoardSupreme Courttitlestatutory interpretation

Judgment

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A TAMIL NADU HOUSING BOARD
v.
A. VISWAM (DEAD) BY LRS.
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FEBRUARY 9, 1996

B [K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

Land Acquisition Act, 1894:

Sections~ 11, 12, 16, 18, 30-Award-Persons having interest in par-
C ticular land-All of them having laid their claims LAO rightly deposited
compensation in Cowt-Land acquired for public purpose viz. constmction '
of houses and public park-Only a pmt of the land cannot be left ouHfence
acquisition is complete in respect of all the lands .mentioned in the Notifica-
tion-Possession must therefore have been taken of the lands including the '-,
land in question-Therefore Injunction cannot be issued against the Housing
D Board, the tme owner. '

Ba/want Narayan Bhagde v. M.D. Bhagwat & Ors., [1975) Supp. SCR
250, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3617-18
E of 1996.
From the Judgment and Order dated 16.3.95 of the Madras High
Court in R.P. No 81/94 and the Judgment and Order dated 7.4.94 in S.A.
No 1526 of 1988.

F Harish Salve, A. Mariarputham, Mrs. Aruna Mathur and Ajay
Kumar for the Appellants.

R.F. Nariman, S. Nand Kumar, L.K. 'Pandey for the Respondents
Nos. 3-8 & 11. ·

G S. Sivasubramaniam, and M.A. Chinasamy for the Respondent No.9.

The following Order of the Court was delivered :

Leave granted.

H Thes.e appeals by special leave arise from the judgment and decree
402
T.N. HSG. BD. v. A VISWAM 403

of the High Court of Madras made on April 7, 1994 in S.A. No. 1526 of A
1988. The facts are not in dispute.
-,
Notification under Section 4(1) of the Land Acquisition Act, 1894
(Act 1 of 1894) (for short, the "Act") was published on September 17, 1958
acquiring a large eXt:ent of 339 acres of land comprising Kodambakkam
and Pudoor villages known as "Part I Neighbourhood Scheme" and
B
renamed as "Ashok Nagar Scheme" of Madras City for planned develop-
ment. Declaration under Section 6 was published on November 26, 1958.
The Land Acquisition Officer made his award under Section 11 on
February 28, 1966. It is the case of the appellant that the Land Acquisition
Officer had taken possession of the land on February 28, 1966 and c
delivered possession to the appellant on March 21, 1966. It is not in dispute
that under the Scheme as many. as 3639 residential houses have been
constructed and delivered possession of. The disputed land in an extent of
one acre and thirty two cents is set apart for public park in the Scheme
which stood vested in the Municipality.
D
It is the case of the respondent that he is the owner of the land having
title to and possession of the same for over 30 years preceding the date of
filing of the suit, viz., April 19, 1984 and the appellant was sought to
interdict his possession and enjoyment. Consequentially, he filed the suit
for perpetual injunction against the appellant. Admittedly, he was a servant E
of the Apparao Mudaliar. The trial Court dismissed the suit. On appeal,
the City Civil Judge decreed the suit and the High Court confirmed the
same. Thus these appeals by special leave.

It is contended by Mr. R.F. Nariman, learned senior counsel appear- F
ing for the respondents, that in a mere ~uit for injunction though inciden-

- tally founded on title, the courts are require to record a finding whether
the respondents were in possession of the land as on the date of the suit
and if finding of being in possession is recorded then they are entitled to
perpetual injunction against everyone except the true owner. In this case, G
all the three courts concurrently found as a fact that the respondents were
in possession of the land as on the date of the suit. The appellant had not
proved that possession was taken by the Land Acquisition Officer from the
respondents. Thereby the right, title and interest held by the respondents
was not divested by operation of Section 16 of the Act. Therefore, the
respondents continue to remain to be the lawful owner. Accordingly, they H
'(
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404 SUPREME COURT REPORTS [1996] 2 S.C.R.

A are entitled to injunction against everyone including the appellant-Board.
In support of his contention, he placed strong reliance on Ba/want Narayan
Bhagde v. M.D. Bhagwat & Ors., (1975] Supp. SCR 250.

The question is: whether tlie premise on which the learned counsel
has projected the case is based on legally acceptable legal premise ? It is
B true when the High Court has, as a pure appreciation of evidence, con-
sidered and recorded as a fact a finding on possession, normally this Court
would accept such finding and proceed on that premise to decide substan-
tial· question of law of public importance, exercising the power under
Article 136. As stated earlier, whether the High Court has proceeded on
c that premise is the question. With due respect, the learned Judge has
proceeded in recording a fact without adverting to operation of relevant
provisions of the Act, failed to draw legal inferences from admitted or
proved facts and had wrongly drawn the inference that the acquisition
stood lapsed which constitute patent error giving rise to substantial ques-
D tion of law. It is an admitted fact the land was acquired under the Act after
due publication of the declaration under Section 6. As rightly contended.
by Mr. S. Sivasubramaniam, learned senior counsel appearing for some of
the respondents, conclusiveness of the public purpose stands established.
Thereafter, procedure prescribed in Chapter III of the Act requires to be
followed and as a fact, admittedly, the LAO made his award on February
E 28, 1966 and issued notice under Section 12. All the parties received
compensation except in respect of the land in question. As a matter of law
under Section 30, when claimant/owner receives ·compensation with or
without, protest, LAO should pay the same. In case, no one received
compensation, he is enjoined under Section 30 to deposit the compensation
in the court to which reference under Section 18 would lie and to make
F
the reference. under Section 30 accordingly. It is seen from the evidence
that the LAO found one Appavoo Madaliar and Nataraja Mudaliar had
interest in the land bearing Survey No. 140/4 of an extent of one acre and
thirty two cents. Accordingly, in his award he mentioned that since all of
them have laid the claim, he referred the dispute under Section 30 and
G deposited the compensation in the court. As a corollary, possession would
be taken and thereafter the land stands vested in the State under Section
16 free from all encumbrances.

The question is : whether the land in question was taken possession?
H The issue squarely arises vis-a-vis the respondents. Unfortunately, the
T.N. HSG. BD. v. A VISWAM 405

- respondents had not impleaded the LAO who had taken possession and
delivered possession of the land to the appellant. It is not in dispute that
A

under Ex.P-5, the LAO delivered possession to the appellant. Therefore,
as rightly contended by Shri Harish Salve, learned senior counsel for the
appellant, that the presumption under Section 114(e) of the Evidence Act
would consequently get attracted to the facts in this case. The LAO in
B
discharge of his official duty after taking possession of the disputed land
with other lands, had, in turn, delivered the same to the appellant. It is
seen that 339 acres of land acquired by a common notification was taken
and the award came to be made and possession was taken of all the lands.
Question arises : whether it would be possible for the LAO to take physical
possession of the entire 339 acres of land and deliver the same to the c
Housing Board ? The approach to the question must be pragmatic and
realistic but not purely legalistic. It is true that in Balwant Narayan Bltagde's
'~ case, Untwalia, J. had held at page 263 thus :

"The question is what is the mode of taking possession ? The Act
D
is silent on the point. Unless possession is taken by the written
agreement of the party concerned the mode of taking possession
obviously .would be for the authority to go upon the land and to
do some act which would indicate that the authority has taken
possession of the land. It may be in the form of a declaration by
beat of drum or otherwise or by hanging a written declaration on E
the spot that the authority has taken possession of the land"

-- Bhagwati, J. (as he then was) speaking for two members had held
that:
F
"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 would have to be taken as the nature G
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 as
absolute and inviolable rule that merely going on the spot and
making a declaration by beat of drum or otherwise would be H
/

406 SUPREME COURT REPORTS (1996] 2 S.C.R.

A 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 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
B to constitute taking of possession. It appears that the appellant was
not present when this was done by the Tehisldar, 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
c oWn.er or the occupant of tl1e 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 mere paper possession, without the occupant
or the owner every coming to know of it."
D
It is settled law by series of judgments of this Court that one of the
accepted modes· of taking possession of the acquired land is recording of
a memorandum or Panchnama by the LAO in the presence of witnesses
winged by him/them and that would constitute taking possession of the land
E as it would be impossible to take physical possession of the acquired land.
It is common Knowledge that in some cases the owner/interested. person
may not co-operate in taking possession of the land.

It is seen that in a letter written by the respondent himself, admitting
F the title of the Board to the land in the said survey number, he sought-for
allotment of alternative site. In other words, unless possession is taken a:.i.d
he is divested of the title and the same is vested in the appellant, he cannqt
make request to the appellant for providing him alternative site. It is not
his case that at that stage he was still continuing to have title to. the land
G in dispute. The admission is inconsistent with and incongruousto his inter-
est He was also aware that award was made and the possession obviously
should have been taken thereunder. It is true that normally possession is
· nine times the title. If that principle is extended to public acquisition by
illegal squatting, erstWhile owner has compensation as well as possession
of the land by encroachment upon his erstwhile land and claim that ~e f
H remah1ed in possession. Such· construction would defeat the public pur-
T.N. HSG. BD. v. A. VISWAM 407

pose. As pointed out earlier, the LAO is the best person to speak to the A
factum of taking and giving delivery, to the appellant, of the possession of
the land in survey No. 140/4 along with other lands but he was not
impleaded as party defendant to the suit. It is seen that when the respon-
\ dent is asserting his legal title to the acquired land, he should have
necessarify the Government impleaded as party and claimed his possession
B
as against the Government. That was not done. The Board having had
possession from the LAO, cannot be expected to prove how the LAO had
taken possession of the land.

From the facts in this case, it would be clear that possession must
have been taken of the land consisting of 339 acres including 1.33 acres in C
survey No. 140/4. It is seen that when the land was acquired for planned
development of the city and a large chunk of buildings has already been
built up and the land admeasuring about 1 acre 32 cents has been set apart
for park purpose, obviously along with other lands, the disputed land was
taken possession and construction was made as per plans. Would it be D
possible for the appellant, without delivery of possession to the Housing
. Board, to construct such massive constructions and leave out only this part
of the land bearing survey No. 140/4 which was set apart for public purpose,
namely, public amenity of park ? The making of the plan would emerge
only after the land is taken possession and demarcation thereof is made
and constructions are carried out. It is erroneous to believe that possession E
still remained with the respondents and the LAO had not taken possession
only of this piece if land. It is not the case of the respondent that he resisted
taking possession of the land by LAO and thereafter the LAO took no
action to have him dispossessed. The single Judge lias not adverted to these
material facts and the circumstantial evidence available from the estab- F
lished facts. He proceeded to consider on the premise that since the
acquired land was not used for building purpose and possession was not
taken, acquisition stood lapsed. Equally erroneous is the reasoning given
by the District Judge. The High Court is wholly illegal in its conclusion.
The District Judge proceeded on the premises that the revenue records do
not show the name of the appellant mutated and the land was not G
registered in the name of the appellant. These circumstances are wholly
illegal and unjustified. Section 11(4) r/w Section 51 of the Act itself exempts
registration of the land acquired under the Act. The District Judge had
obviously ignored the statutory provisions. It was unnecessary for the
Housing Board to have the lands mutated in the revenue records and have H
)
408 SUPREME COURT REPORTS (1996] 2 S.C.R.

A its name entered therein. It was not for its purpose. It was for public
purpose, i.e., for construction of the houses and allotment thereof to the
needy persons. After the construction of the houses, the public park stood
vested in the acquisition. Obviously, at this stage the Municipality would
have come to take possession exercising its jurisdiction when illegal
encroachment was found on the land. At this stage, notice was given to the
B respondents and the respondent filed the suit for perpetual injunction.

Thus considered, the title of the land in Survey No. 140/4 having been
vested in the appellant, to whomsoever it belonged earlier, it stood divested
from him/them and no one can lay any claim to the said acquired land once
C over and claim injunction on that basis. The injunction, therefore, cannot
be issuea against the true owner, namely, the Housing Board in whom the
land ultimately stood vested and then stood transferred to Municipal
Corporation. A trespasser can not claim injunction against the owner· nor
can the court to issue the same.

D Thus considered, we are of the view that grave error of law was
committed by the High Court in confirming the decree of the appellate
Court. Accordingly, the decrees and judgments of the first appellate Court
and the High Court stand set aside and that of the trial Judge stands
restored.

E The appeals are accordingly allowed. No costs.

G.N. Appeals allowed.