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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 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.
".........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."
(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.
As per the decision of the Standing Committee in the meeting dated 3.6.93, land 50 meters from village Abadi is not acquired. However, in case any such land has been notified for acquisition, it may be recommended for de-notification provided its absence will not materially affect the public purpose for which it is being acquired.
The Supreme Court recently held that the provision under section 11-A of the Land Acquisition Act, 1894 prescribing a 2-year period before lapse of land acquisition proceedings will not be applicable after the repeal of the Act and after the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 has came into force.
Section 11A requires that an award under Section 11 must be passed within a period of two years from the date of publication of the declaration and if no award is so made, the proceedings for acquisition of land shall lapse. As per the explanation, the period during which any action or proceedings to be taken pursuant to the declaration is stayed by an order of a court is to be excluded while calculating the period of two years.
These developments came while the top court was deciding whether the two-year period specified under Section 11A of the Land Acquisition Act, 1894 will apply even after the repeal of the 1894 Act, or the twelve-month period specified in Section 25 of the 2013 Act will apply for the awards made under clause (a) of Section 24(1) of the 2013 Act?
A 2-judge bench of Justices AM Khanwilkar and Sanjiv Khanna further opined that such dual principles would mitigate against the underlying legislative intent behind prescription of time for making of an award in respect of saved acquisition proceedings initiated under the repealed 1894 Act.
In the appeal before it, the court was dealing with a notification issued by the State of Maharashtra under the 1894 Act for acquisition of 103.86 hectares of land on June 16, 2011 which was followed by publication of declarations, the last of which was issued on August 8, 2012.
While allowing the said award, the Bombay High Court held that the award ought to have been passed within two years from the date of the declaration under Section 6 in terms of Section 11A of the 1894 Act.
The Supreme Court was of the view that Section 24(1)(a) would apply in the present case since the land acquisition proceedings initiated under the 1894 Act had not culminated in an award till the repeal of the 1894 Act and this obviated the necessity to issue a fresh notification under the 2013 Act.
Further reliance was placed on Indore Development Authority v. Manoharlal and Others wherein a constitution bench held that if proceedings for acquisition were initiated under the 1894 Act but no award under Section 11 of the 1894 Act had been made, the provisions of the 2013 Act would apply.
The Supreme Court on Wednesday resumed hearing on a string of petitions raising the question whether the expression "proceedings" in section 24(1) of the 2013 Land Acquisition Act is to be reckoned from the date of notification under Section 4 of the Land Acquisition 1894 or with the date of notification under Section 6 of the old Act.Section 24 is titled 'Land acquisition process under Act No...
Indian Land Cessions in the United States, 1784-1894 is in U.S. Congressional Serial Set, Number 4015, which contains the second part of the two-part Eighteenth Annual Report of the Bureau of American Ethnology to the Secretary of the Smithsonian Institution, 1896-1897.
Indian Land Cessions in the United States, 1784-1894 is in U.S. Congressional Serial Set, Number 4015, which contains the second part of the two-part Eighteenth Annual Report of the Bureau of American Ethnology to the Secretary of the Smithsonian Institution, 1896-1897. Part one is in U.S. Congressional Serial Set, Number 4014, and also included in this collection. Part two was also printed as House Document No. 736 of the U.S. Congressional Serial Set, 56th Congress, 1st Session. Part two features 67 maps and two tables compiled by Charles C. Royce, with an introductory essay by Cyrus Thomas. The tables are titled: (1) Schedule of Treaties and Acts of Congress Authorizing Allotments of Lands in Severalty, and (2) Schedule of Indian Land Cessions.
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