MOHAMMED IBRAHIM AND ANR. Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE Appellants were owners of 0.09 cents of land appertaining to survey No. 12 in mouza Lanjipalli in Berhampur Tehsil, district Ganjam. These lands were acquired for the public purpose of remodelling of the Berhampur Railway Station Yard. Notifications under Sections 4(1) and 17(4) of the Land Acquisition Act (hereinafter referred to as the 'Act ') were published in the extraordinary gazette No. 2197 dated 21 -8 -1964. The Land Acquisition Officer made an award for a sum of Rs. 5,644.75 p. towards compensation for the aforesaid land with house thereon. In determining this compensation, he fixed the market value of the land at the rate of Rs. 33,000/ - per acre. At the instance of the Appellants a reference was made to the Court under Section 18 of the Act. The Court, namely, the Sub -Judge of Berhampur enhanced the compensation amount and directed payment of interest on the excess amount at the rate of 6 per cent per annum from the date on which the possession was taken from the Petitioners till the date of payment of such excess amount, obviously under Section 34 of the Act.

(2.) THE Appellants accepted the amount awarded by the Collector under protest before they sought reference to the civil Court. After the Court passed an award enhancing the compensation granted by the Land Acquisition Officer, the Appellants levied execution of the same in E.P. No. 21 of 1971 in the Court of the Sub -Judge, Berhampur. The Respondent - judgment -debtor raised objection to execution of the award for interest on the ground that the Collector had not taken possession of the acquired lands. Construing Ex. 1, the Sub -Judge held that possession of survey No. 12 had not been taken by the Collector, because the house standing on the acquired lands being in possession of trespassers, the Applicants were under obligation to evict those trespassers and deliver vacant possession thereof to the judgment debtor which they had failed to discharge. He, therefore, refused to execute the award for interest by his order dated 21 -4 -1973. Being aggrieved by that order this appeal has been filed.

(3.) EVEN assuming that survey No. 12 had some houses thereon which were in occupation of some third parties and they refused to give possession in favour of the Collector, nevertheless, since the owners themselves delivered such possession to the Land Acquisition Inspector of which the acquired property was capable of at the time, it must be held that there was delivery of possession in law. Possession for the purpose of Section 34 must carry the same meaning as possession for the purpose of Section, 16 of the Act and such possession must be possession of which a full owner was capable of having with all consequential rights appertaining to it at the time. Possession may be khas possession or constructive possession and delivery of possession envisaged under Section 16 of the Act must mean such delivery as will be effective with reference to the nature of possession of the owner. If the owner is in khas possession, delivery of possession must be actual delivery and if possession is constructive, it must mean symbolical delivery. Section 16 provides for the Collector taking possession and not the owner delivering possession. Thus, where the property is in actual possession of a trespasser but in the legal possession of the true owner and the latter delivers possession, such delivery will obviously be symbolical delivery of possession. Since the defacto possessor has no interest in the land and had not made any claim for compensation on the basis of any interest in the acquired land, he will be an out and out trespasser not only so far as the true owner is concerned but also so far as Government is concerned as well. Symbolical delivery of possession in such cases will, I apprehend, be as effective as actual delivery for the purpose of Section 16 of the Act. Once the Land Acquisition Officer has taken symbolical delivery of possession, the State acquires along with it the right to evict the trespassers. It will thus be illogical to hold that the owner will still continue to have thereafter any right to eject the trespassers. Taking of possession under Section 16 of the Act becomes complete, in such cases, as soon as the possession which the owner was capable of delivering was taken.