PETITIONER: <NAME> Vs. RESPONDENT: <NAME> CONNECTED APPEAL) DATE OF JUDGMENT: 31/10/1955 BENCH: AIYAR, N. CHANDRASEKHARA BENCH: AIYAR, N. CHANDRASEKHARA DAS, SUDHI RANJAN BOSE, VIVIAN JAGANNADHADAS, B. IMAM, SYED JAFFER CITATION: 1956 AIR 44 1955 SCR (2) 925 ACT: Constitution of India, Art. 14- Criminal Procedure Code (Act V of 1898), s. 197-Whether ultra vires the Constitution- Sanction under s. 197-Reasonable connection between the act and discharge of Official duty-Need for sanction-When to be considered-Power conferred or duty imposed-Implies power of employing all means for execution thereof. HEADNOTE: In pursuance of a search - warrant issued under s. 6 of the Taxation on Income (Investigation Commission) Act , 1947 authorising four Officials to search two premises in Calcutta, they went there and forcibly broke open the entrance door of a flat in one case and the lock of the door of a room in the other case. On being challenged by the darwan and the proprietor of the respective premises they were alleged to have tied the darwan with a rope, causing him injuries and to have assaulted the proprietor mercilessly with the help of two policemen and kept him in a lock up for some hours. Two separate complaints-one by the darwan and the other by the proprietor-under ss. 323 , 342 , etc., of the Indian Penal Code were instituted before two different Magistrates. The common question for determination in both the complaints was whether under the circumstances sanction was necessary under s. 197 of the Code of Criminal Procedure. Held that sanction was necessary as the assault and the use of criminal force related to the performance of the official duties of the accused within the meaning of s. 197 of the Code of Criminal Procedure. Art. 14 does not render s. 197 of the Code of Criminal Procedure ultra vires as the discrimination on the part of the <ORG> to grant sanction against one public servant and not against another is based on a rational classification. A discretionary power is not necessarily a discriminatory power and abuse of power is not easily to be assumed where the discretion is vested in the <ORG> and not in a minor official. In the matter of grant of sanction under s. 197 of the Code of Criminal Procedure, the offence alleged to have been committed by the accused must have something to do, or must be related in some manner with the discharge of official duty. In other words there must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the 926 accused could lay a reasonable claim, but not a pretended or fanciful claim, that he did it in the course of this performance of his duty. The need for sanction under s. 197 of the Code of Criminal Procedure is not necessarily to be considered as soon as the complaint is lodged and on the allegations therein contained. The question may arise at any stage of the proceedings. The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty; but facts subsequently coming to light on a police or judicial inquiry, or even in the course of the prosecution evidence at the trial, may establish ,the necessity for sanction. Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case. Where a power is conferred or a duty imposed by statute or otherwise, and there is nothing said expressly inhibiting the exercise of the power or the performance of the duty by any limitations or restrictions, it is reasonable to hold that it carries with it the power of doing all such acts or employing such means as are reasonably necessary for such execution, because it is a rule that when the law commands a thing to be done, it authorises the performance of whatever may be necessary for executing its command. <CITATION> , (1948) L.R. 76 I.A. 41, <NAME> v. The Crown, (1939) F.C.R. 159, 178, <CITATION> , (1948) L.R. 75 I.A. 185, Lieutenant <NAME> Huntley v. The King-Emperor, (1944) F.C.R. 262, <CITATION> , (1955) 1 S.C.R. 1177, <CITATION> , (1955) 1 S.C.R. 1302, <NAME> v. The King Emperor, (1945) F.C.R. 227, <NAME> v. <NAME>, (1823) L.J. Reports (K.B.) 139 and <NAME> v. <NAME>, (1897) L.R. 2 Q.B.D. 452, referred to. JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal by Special Leave from the Judgment and Order dated the 4th July 1952 of <ORG> in Criminal Revision No. 312 of 1952 arising out of the Order dated the 12th March 1952 of <ORG> at Calcutta in Case No. C/2867 of 1950.

<NAME> (<NAME> with him) for the appellant in both appeals.

<NAME>, Solicitor-General of India (<NAME> and <NAME> with him) for the respondents in both appeals.

1955. October 31. The Judgment of the Court was delivered by <NAME> J.-These appeals come before us on special leave to appeal granted under article 136 of the Constitution against two orders of <ORG> dismissing Criminal Revision Petitions Nos. 559 of 1951 and 312 of 1952 preferred by the appellants respectively. In Criminal Revision Petition No. 559 of 1951, <ORG> (<NAME>, C.J. and <NAME>, J.) confirmed an order made by a Presidency Magistrate discharging the accused on the ground of want of sanction under section 197 , Criminal Procedure Code .

In Criminal Revision Petition No. 312 of 1952, <NAME> and <NAME>, <NAME>. set aside an order made by another Presidency Magistrate that no sanction was required and they quashed the proceedings against the accused.

The incidents which gave rise to the two complaints are closely inter-related and can be set out briefly. In connection with certain proceedings pending before <ORG> it was found necessary to search two premises 17, Kalakar Street and 36, Armenian Street to inspect, take copies and secure possession of certain books, papers and documents believed to be in them. A warrant was issued by the <ORG> for this purpose in favour of four persons, namely, <NAME>, <NAME>, <NAME> and <NAME>, to carry out the search. The authorised officials went to the Kalakar Street premises, third floor on the morning of December 1950. <NAME>, (Appellant in Criminal Appeal No. 67), the darwan of Kasbiram Agarwala, says that when he found them forcibly breaking open the entrance door of the flat he challenged them and requested them to desist. They paid no heed to him, broke open the door, went inside and interfered with some boxes and drawers of tables. They tied him with a rope and assaulted him causing injuries. On these facts, he filed a complaint on 27-12-1950 against <NAME> and three others (names unknown) under sections 323 , 341 , 342 and 109 , Indian Penal Code , Armenian Street premises on the evening of 26-12-1950. <NAME> (father of <NAME>) came to the place and found that they had forcibly opened the lock of the door of the room in which there were several books and papers, which they were collecting and packing into bundles for removal. He protested, pointed out that their actions were illegal and oppressive, and he wanted a proper search list to be prepared and proper receipts to be given to him for the books and documents sought to be seized and removed. Thereupon, two policemen held him down and he was assaulted mercilessly, kicked, dragged downstairs, put in a police van, and taken to the Burra Bazar thana, where he was as- saulted again before being sent to the hospital. He was brought back and kept in the lock up till midnight when he was released on bail. Setting out these facts, he lodged a complaint against the four officials, other subordinates and police officers whose names he did not then know but could supply later. The offences mentioned in the complaint are sections 323 , 342 and 504 , Indian Penal Code . Later, the names of two police officers were given-<NAME> and <NAME>.

The two complaints were sent over for judicial inquiry to two different magistrates. On 21-2-1951, the magistrate held on <NAME>'s complaint that a prima facie case had been made out under section 323 against all the four- accused and under section 342 against the two policemen. On this report, summonses were directed to issue under section 323 against all the accused. On 1-5-1951, two prosecution witnesses were examined in chief and the case stood adjourned to 22-5-1951. It was on this latter date that the 1st accused <NAME> filed a petition, taking the objection of want of sanction under section 197 , Criminal Procedure Code . The objection was upheld and all the accused disc barged on 31-5-1951. Nandram <NAME> went up to <ORG> in revision, but the order of the Presidency Magistrate was affirmed.

In <NAME> complaint, after the termina-

tion of the inquiry, process was issued only against <NAME> under sections 323 and 342 , Indian Penal Code for 22-12- 1951. After some adjournments, accused filed on 26-2-1952 a petition as in the other case raising the same objection. The magistrate on whose file the case was pending overruled the objection and directed that the case should proceed. Accused <NAME> took the matter on revision to <ORG> and succeeded.

In <NAME> case (Criminal Revision Petition No. 559 of 1951) Chief Justice <NAME> and <NAME>, J. held that the test formulated by <ORG> in <NAME>'s case(1) applied and that on a fair reading of the complaint, bereft of exaggerations and falsehoods, the officers could reasonably claim that what they did was done by them in the exercise of their official duty. In <NAME> case (Criminal Revision Petition No. 312 of 1952), the learned Judges (<NAME> and <NAME>, <NAME>.) came to the same conclusion in these words: "From the nature of the allegations therefore against the petitioner, it is abundantly clear that there was something in the acts alleged against him which attached them to the official character of the petitioner, that is, which attached them to his official character in holding the search".

Mr. <NAME>, learned counsel for the appellants in the two appeals, challenged the soundness of these conclusions and advanced three categorical contentions on their behalf. Firstly, an act of criminal assault or wrongful confinement can never be regarded as an act done while acting or purporting to act in the discharge of official duty; secondly, that in a case where the duty is clearly defined by statute and warrant of authority, such acts could never come within the scope of employment; and thirdly, that in any case it was the duty of the court to allow the prosecution to proceed and not stifle it in limine. He also urged that as the entry on the 23rd December was into a wrong place, P-17, Kalakar Street, and not 17, Kalakar Street which was the authorised premises, the search was illegal from the commencement. He raised the (1) [1948] L.R. 75 I.A. 41.

constitutional point that section 5(1) of the Taxation on Income (Investigation Commission) Act XXX of 1947) and section 197 , Criminal Procedure Code were ultra vires, as they were discriminatory in their nature, and offended article 14 of the Constitution.

In the course of his arguments, he referred to section 6 sub-sections (7) and (9) of the Taxation on Income (Investigation Commission) Act (XXX of 1947) and rule 10 and the search warrant that was issued under them. His main argument was that there was no power conferred by statute or under common law on the authorised officials to assault or use force in the execution of their duty and any such acts must therefore be deemed to be entirely outside the scope of their employment. He drew our attention to the sections of the Criminal Procedure Code relating to searches and quoted two old English cases to reinforce this position. The search warrant is in these terms:

"Warrant of Authorisation under sections 6(7) and 6(9) and Rule 8.

Taxation on Income (Investigation <ORG>) Act , 1947. Whereas information has been laid before the <ORG> and on the consideration thereof the <ORG> has been led to believe that certain books, documents and papers, which are or may be relevant to proceedings under the above Act in the cases compendiously known as the S. Jhabbarmull group (R. C. No. 313) and connected cases have been kept and are to be found in (i) the third floor, 17, Kalakar Street, Calcutta

(ii) 47 Khengraputty Street, Calcutta-7, and (iii) the second 'floor and adjoining rooms, 36, Armenian Street, Calcutta, compound, offices and out-houses or other places in that locality.

This is to authorise and require you, Sri <NAME>, Authorised Official, <ORG>,

(a) to enter and search with such assistance of police officers as may be required, the said premises or any other place or places where you may have reason to believe that such books, documents or papers may be found;

(b)to place identification marks on such books, documents and papers as may be found and as you may consider relevant to the proceedings aforesaid and to make a list thereof together with particulars of the identification marks;

(c) to make copies or extracts from such books, documents and papers;

(d) to seize such books, documents and papers and take possession thereof; and

(e)to exercise all other powers and duties under the said sections and the Rules relating thereto". Straightaway, it may be conceded that the warrant set out above specifies precisely the scope of the duties entrusted to the authorised officials. Whether they took any policemen with them even at the commencement or whether they were only sent for when resistance was offered is not clear. This, however, does not matter as the warrant authorises police assistance at the search.

The version of the complainants as to what happened at the search is set out in the two complaints. The story of the accused is found in the petitions filed by <NAME> urging the objection under section 197 , Criminal Procedure Code . Details about the occurrences were also elicited at the two judicial enquiries. There are two medical certificates specifying the injuries found on <NAME> and <NAME>.

The minor contentions may be disposed of at the outset. Even if there was anything sound and substantial in the constitutional point about the vires of section 5(1) of the Act, we declined to go into it as it was not raised before <ORG> or in the grounds of the petition for special leave to appeal. Article 14 does not render section 197 , Criminal Procedure Code ultra vires as the discrimination is based upon a rational classification. Public servants have to be protected from harassment in the discharge of official duties while ordinary citizens not so engaged do not require this safeguard. It was argued that   section 197 , Criminal Procedure Code vested an absolutely arbitrary power in the government to grant or withhold sanction at their sweet will and pleasure, and the legislature did not lay down or even indicate any guiding principles to control the exercise of the discretion. There is no question of any discrimination between one person and another in the matter of taking proceedings against a public servant for an act done or purporting to be done by the public servant in the discharge of his official duties. No one can take such proceedings without such sanction. If the government gives sanction against one public servant but declines to do so against another, then the government servant against whom sanction is given may possibly complain, of discrimination. But the petitioners who are complainants cannot be heard to say so for there is no discrimination as against any complainant. It has to be borne in mind that a discretionary power is not necessarily a discriminatory power and that abuse of power is not to be easily assumed where the discretion is vested in the govern- ment and not in a minor official. Further, we are not now concerned with any such question. We have merely to see whether the court could take cognisance of the case without previous sanction and for this purpose the court has to find out if the act complained against was committed by the accused while acting or purporting to act in the discharge of official duty. Once this is settled, the case proceeds or is thrown out. Whether sanction is to be accorded or not is a matter for the government to consider. The absolute power to accord or withhold sanction conferred on the government is irrelevant and foreign to the duty cast on the court, which is the ascertainment of the true nature of the act.

The objection based on entry into the wrong premises is of no substance; it is quite probable that the warrant specified 17 instead of P. 17 by a bona fide mistake or error; or it may be that the party made an honest mistake. As a matter of fact, the account books, etc. were found in P. 17, the premises raided.

Slightly differing tests have been laid down in the decided oases to ascertain the scope and the meaning of the relevant words occurring in section 197 of the Code; "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty". But the difference is only in language and not in substance. The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under section 197 , unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. There must be a reasonable connection' between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What we must find out is whether the act and the official duty are so inter-related that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation. In <NAME> v. The Crown(1), <NAME>, J. observes: "The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor is it necessary to go to the length of saying that the act constituting the offence should be so inseparably connected with the official duty as to form part and parcel of the same transaction".

The interpretation that found favour with <NAME>, J. in the same case is stated by him in these terms at page 187: "There must be something in the nature of the act complained of that attaches it to the official character of the person doing it". In affirming this view, <ORG> observe in <NAME>'s case(1) "A public servant can only be said to act or purport to act in the discharge of his official duty, if his act is such as to (1) [1939] F.C.R. 159,178.

(2) [1948] L.R. 75 I.A. 41.

<NAME>

lie within the scope of his official duty .... The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office". <NAME> case(1) is referred to with approval in the later ease of Lieutenant <NAME> v. The King-Emperor(1) but the test laid down that it must be established that the act complained of was an official act appears to us unduly to narrow down the scope of the protection afforded by section 197 of the Criminal Procedure Code as defined and understood in the earlier case. The decision in <CITATION> (1) does not carry us any further; it adopts the reasoning in <NAME>'s case(1). There are two cases of this Court to which reference may be made here. <CITATION> (1), <NAME>, J. observes as follows: "Now it is obvious that if section 197 of the Code of Criminal Procedure is construed too narrowly, it can never be applied, for of course, it is no part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it. The section has content and its language must be given meaning". The question of previous sanction also arose in <CITATION> (6). A fairly lengthy discussion of the authorities is followed up with this summary: "If the acts complained of are so integrally connected with the duties attaching to the office as to be inseparable from them, then sanction under section 197(1) would be necessary; but if there was no necessary connection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts, then no sanction would be required".

The result of the foregoing discussion is this: There must be a reasonable connection between the act and the discharge of official duty; the act must bear such (1) [1939] F.C.R. 159,178, (2) [1944] F.C.R. 262.

(3) [1948] L.R. 75 I.A. 185.

(4) [1948] L.R. 75 I.A. 41.

(5) [1955] 1 S.C.R 1177, 1186.

(6) [1955] 1 S.C.R. 1302, 1307, 1308.

relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty. Is the need for sanction to be considered as soon as the complaint is lodged and on the allegations therein contained? At first sight, it seems as though there is some support for this view in <NAME> case and also in <NAME> v. <NAME>). <NAME>, <NAME> says that as the prohibition is against the institution itself, its applicability must be judged in the first instance at the earliest stage of institution. <NAME>, <NAME> also states that the question must be determined with reference to the nature of the allegations made against the public servant in the criminal proceeding. But a careful perusal of the later parts of their judgments shows that they did not intend to lay down any such proposition. <NAME>, <NAME> refers (at page 179) to the prosecution case as disclosed by the complaint or the police report and he winds up the discussion in these words: "Of course, if the case as put forward fails or the defence establishes that the act purported to be done is in execution of duty, the proceedings will have to be dropped and the complaint dismissed on that ground". The other learned Judge also states at page 185, "At this stage we have only to see whether the case alleged against the appellant or sought to be proved against him relates to acts done or purporting to be done by him in the execution of his duty". It must be so. The question may arise at any stage of the proceedings. The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty; but facts subsequently coming to light on a police or judicial inquiry or even in the course of the prosecution evidence at the trial, may establish the necessity for sanction. Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case.

We are not prepared to concede in favour of the (1) [1945] F.C.R. 227, appellants the correctness of the extreme proportion advanced by Mr. <NAME> on their behalf that when obstruction is laid or resistance offered against an authorised and therefore lawful search, the officials conducting the - search have no right to remove or cause to be removed the obstruction or resistance by the employment of reasonable force, and their remedy is only to resort to the police or the magistracy with a complaint. Such a view would frustrate the due discharge of the official duty and defeat the very object of the search, as the books, etc.. might be secreted or destroyed in the interval; and it would encourage obstruction or resistance even to lawful acts. It may be that more than reasonable force is used to clear the obstruction or remove the resistance, but that would be a fit subject-matter for inquiry during the proceedings; it would not make the act of removal improper or unlawful. It is a matter for doubt if Chapters V and VII of the Criminal Procedure Code can be read as an exhaustive enumeration of all the powers of a search party. Anyhow, section 6 , sub- section (9) of the Investigation Commission Act makes the provisions relating to searches applicable only "go far as they can be made applicable".

The two English cases relied on are scarcely of any help. In <NAME> v. <NAME>"), a rather startling view was taken that a power to apprehend a person for a statutory offence did not include a power to move that person gently aside. <NAME> v. Treeby(2) was a case where the Act of Parliament which created a new offence did not in itself provide for a power of detention of the offender.

Where a power is conferred or a duty imposed by statute or otherwise' and there is nothing said expressly inhibiting the exercise of the power or the performance of the duty by any limitations or restrictions, it is reasonable to hold that it carries with it the power of doing all such acts or employing such means as are reasonably necessary for such execution. If in the exercise of the power or the performance (1) [1823] L.J. Reports (K.B.) 139; 2 D. & R. 600. (2) [1897] L.R.2 Q.B.D. 452.

of the official duty, improper or unlawful obstruction or resistance is encountered, there must be the right to use reasonable means to remove the obstruction or overcome the resistance. This accords with commonsense and does not seem contrary to any principle -of law. The true position is neatly stated thus in <ORG>, 10th Ed., at page 312: "It is a rule that when the law commands a thing to be done, it authorises the performance of whatever may be necessary for executing its command".

Let us however assume that Mr. <NAME> is right in his contention. Still, it can be urged that the accused could claim that what they did was in the discharge of their official duty. The belief that they had a right to get rid of the obstruction then and there by binding down the complainants or removing them from the place might be mistaken, but, surely, it could not be said that their act was necessarily mala fide and entirely divorced from or unconnected with the dig' charge of their duty that it was an independent act maliciously done or perpetrated., They. could reasonably claim that what they did was in virtue of their official duty, whether the claim is found ultimately to be well-founded or not.

Reading the complaints alone in these two cases, even without the details of facts as narrated by the witnesses at the judicial inquiries, it is fairly clear that the assault and use of criminal force, etc. alleged against the accused are definitely related to the performance of their official duties. But taken along with them, it seems to us to be an obvious case for sanction. The injuries a couple of abrasions and a swelling on Nandram Agarwala and two ecohymosis on Matajog--indicate nothing more than a scuffle which is likely to have ensued when there were angry protests against the search and a pushing aside of the protestors so that the search may go on unimpeded. Mr. <NAME> finally pointed out that the fourth accused <NAME> was a constable and the case should have been allowed to proceed against him at least. This question arises only in <NAME> case. The Magistrate who dismissed the com-

plaint took the view that theme was no use in proceeding against him alone, as the main attack was directed against the Income-Tax Officials. No such grievance was urged before <ORG> and it is not raised in the grounds for special leave.

We hold that the orders of <ORG> are correct and dismiss these two appeals.


REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.3604 OF 2011 (Arising out of Special Leave Petition (C) No.30293 of 2010) <ORG>, Banda ......Appellant Versus Moti Lal Agarwal and others ......Respondents J U D G M E N T

<NAME>, J.

1. Leave granted.

2. The question which arises for consideration in this appeal is whether <ORG> of <ORG> was justified in entertaining and allowing the writ petition filed by respondent No.1-Moti Lal Agarwal in 2008 for nullifying the acquisition of his land by <ORG> vide notification dated 8.9.1998 issued under Section 4(1) read with Section 17(1) and 17(4) of the Land Acquisition Act, 1894 (for short, "the Act") which was followed by declaration dated 7.9.1999 issued under Section 6(1)  read with Section 17(1) on the ground of non passing of award within the time prescribed under Section 11A .

3. By the notifications referred in the preceding paragraph, <ORG> acquired 103 bighas land situated in Ladakapurwa and Bhawanipur villages, Pargana and District Banda for <ORG> of <ORG> (for short, "the <ORG>"). Both the notifications were published in the manner prescribed under Sections 4(1) and 6(2) respectively.

4. On 5.6.2000, the Secretary of the <ORG> deposited Rs.63,47,855.07 towards 80% of the compensation payable in lieu of the acquisition of 103 bighas land. This was in compliance of the mandate of Section 17(3A) . The concerned authorities of the <ORG> delivered possession of the acquired land to the <ORG> on 30.6.2001. The officers of <ORG> visited the site on 4.9.2001 and prepared the Field Book, copy of which has been produced before this Court along with affidavit dated 19.1.2011 of <NAME>, Executive Engineer, <ORG>. The Special Land Acquisition Officer passed award dated 14.6.2002 for the acquired land including plot No.795 of which 5 bighas 5 biswas was purchased by respondent No.1 vide registered sale deed dated 4.10.1982.

5. In the meanwhile, the <ORG> prepared lay out for the acquired land which was sanctioned by its Board on 8.5.2002. Thereafter, the land was developed in a phased manner and plots were carved out for economically weaker sections and LIG, MIG and HIG categories. The <ORG> also constructed flats for economically weaker sections and those belonging to lower income group. The plots and flats were allotted to the eligible persons who had applied in response to different advertisements issued by the <ORG> between 2.11.2002 and 26.4.2006.

6. After more than three years of publication of the declaration issued under Section 6(1) , respondent No.1 filed suit being O.S. No.52 of 2003 in <ORG> (<ORG>), <NAME>, and prayed that the defendants be directed to start the acquisition proceedings afresh and disburse compensation after sub-dividing and numbering plot No.795 in accordance with paragraph 63 of the Land Record Manual. The suit was dismissed on 1.9.2007 in view of the bar contained in the Uttar Pradesh Zamindari Abolition and Land Reforms Act and the Land Acquisition Act .

Respondent No.1 challenged the order of <ORG> in First Appeal No.364 of 2007 but withdrew the same by stating that the writ petition filed by him was pending.

7. In the writ petition filed by him on 24.3.2008, respondent No.1 challenged notifications dated 8.9.1998 and 7.9.1999 mainly on the ground that the acquisition proceedings will be deemed to have lapsed because the award was not passed within two years from the date of last publication of the declaration issued under Section 6(1) . Respondent No.1 pleaded that though plot No.795 had not been sub-divided and demarcated and physical possession thereof was not taken, the concerned authorities prepared Kabja Hastantaran Praman Patra dated 30.6.2001 and thereby took paper possession of his land. He also claimed that plot No. 795/3 owned by him had not been notified, but the concerned authorities colluded with Smt. <NAME> and other interested persons and reflected him as tenure holder of that plot.

8. The thrust of the affidavits filed by <NAME>, Executive Engineer and <NAME>, Assistant Engineer on behalf of the <ORG> was that after taking possession of the acquired land, the <ORG> constructed roads and nalis, laid pipelines for supply of water and also erected poles for electric lines and plots carved out from the acquired land were allotted to people belonging to different categories. In paragraphs 2, 3 and 4 of his affidavit, <NAME>, Assistant Engineer, averred as under:

"2. That present supplementary counter affidavit has been necessitated as the petitioner through rejoinder affidavit to the counter affidavit filed on behalf of respondents no.1, 2 and 3 has brought on record the copies of <ORG> for the year 1407- 1411 fasli.

3. That 1407 fasli is from 1st July, 1999 to 30th June, 2000 to 30th June, 2001. Similarly 1409 fasli is for the year 2001-02, 1410 fasli is for the year 2002-03, 1411 & 1412 fasli is for the year 2003-04 and 2004-05.

4. The perusal of these Khasras shows that there is no entry of sowing any crop in 1410-1412 fasli, namely no crop was shown and they were, admittedly, not in possession from July, 2002 towards. Possession has been taken from petitioner on 30.6.2001. 30.6.2001 corresponds to end of 1408 fasli. It is thus clear that petitioner was not in possession after 30.6.2001. Entry of sowing any crop in Khasra 1409 is patently erroneous since in 1409 fasli i.e. from 1st July, 2001 petitioner was not in possession. This entry is incorrect and no crop has been sown after possession was taken on 30.6.2001."

9. In a separate affidavit, <NAME>, Tehsildar (J), <ORG>, supported the stand taken by the <ORG>. He categorically averred that possession of the acquired land was handed over to <ORG> on 30.6.2001 for the purpose of implementation of the residential scheme. Along with his affidavit, <NAME> annexed photostat copy of report dated 14.7.2001 prepared by <NAME>, <ORG>, who had visited the spot and inspected the site.

10. Although, respondent No.1 did not question the acquisition proceedings on the ground of non compliance of Section 7 of the Act, the Division Bench of <ORG> suo moto observed that the acquisition proceedings can be quashed on the ground of non compliance of that section. <ORG> then referred to the entries made in the revenue records and held that the acquisition proceedings will be deemed to have lapsed because neither physical possession of the land was taken nor the award was passed within two years as per the mandate of Section 11A . <ORG> distinguished the judgment of this Court in <CITATION> .  by observing that physical possession of the acquired land had not been taken for more than two years after publication of the declaration issued under Section 6(1) .

11. <NAME>, learned senior counsel for the appellant argued that <ORG> was not at all justified in entertaining and allowing the writ petition filed after nine years of publication of the declaration issued under Section 6(1) and six years of the passing of award by the Special Land Acquisition Officer and that too by ignoring that during the intervening period the <ORG> carried out development, carved out plots and allotted the same to the eligible applicants including the members of economically weaker sections and also constructed flats for the economically weaker sections and lower income groups. <NAME> submitted that respondent No.1 cannot justify belated filing of the writ petition on the ground that he was prosecuting the case in the civil Court because in the suit he had not prayed for quashing the notifications issued under Sections 4(1) and 6(1) .

Learned senior counsel relied upon the judgments of this Court in <CITATION> . (supra), <CITATION> , <CITATION> , <CITATION> , <CITATION>  and argued that Section 11A is not applicable to the cases in which the land is acquired by invoking the emergency provisions contained in Section 17(1) and 17(4) .

He submitted that <ORG> committed serious error by quashing the acquisition proceedings on the premise that physical possession of the acquired land had not been taken on 30.6.2001 Learned counsel referred to letter dated 5.6.2000 vide which the <ORG> deposited a sum of Rs.63,47,855.07 towards the compensation payable to the land owners and submitted that the exercise undertaken for taking possession of the acquired land by the concerned authorities of the <ORG> and delivery thereof to the <ORG> could not have been brushed aside by <ORG> by describing it as symbolic/paper possession.

12. <NAME>, learned senior counsel appearing for respondent No.1 supported the order under challenge and argued that <ORG> rightly annulled the acquisition proceedings because physical possession of the land was taken only on 30.7.2002 and the award was passed after more than two years of publication of the declaration issued under Section 6(1) .

Learned senior counsel relied upon Khasra Land Records of Fasli years 1407, 1408 and 1409, which have been filed with I.A. No.3 of 2011 to show that physical possession of the acquired land continued with respondent No.1 till July 2002 and argued that the document prepared by the State authorities showing delivery of possession to the BDA cannot be made basis for recording a finding that physical possession of the acquired land was taken on 30.6.2001. Learned senior counsel relied upon the judgments of this Court in <CITATION> . , <CITATION>  as also the judgments of <ORG> in <CITATION> . (2008) 2 AWC 1832 and <CITATION> . (1999) 1 AWC 764 and submitted that symbolic/paper possession taken by the State authorities on 30.6.2001 was not sufficient for relieving <ORG> of the obligation to pass award within two years of the last publication of the declaration issued under Section 6(1) . Shri <NAME> then referred to the judgments of this Court in <CITATION>  and <CITATION>  and argued that respondent No.1 should not be non-suited on the ground of delay because no such objection was raised before <ORG>.

13. We have considered the respective submissions. In the suit filed by him, respondent No.1 had unequivocally declared that he did not have any objection to the acquisition of land or the plots which were subject matter of the acquisition. The only grievance made by respondent No.1 was that the notification had been issued without sub-dividing plot No. 795. He also claimed that defendant No.3 had delivered possession to defendant No.4 on papers and they were trying to start construction after taking possession of his land. This is evident from paragraphs 5, 6, 8, 10 and 11 of the plaint, which are extracted below:

"5. That description of the disputed plot which has acquired by the Gazette Notification is given as plot no.795 Rakba 12 Bigha and 795/2 Rakba 5 Bigha 5 Biswa. At the time of acquisition proceedings this fact came to liaht that olot no. 795 has not been sub-divided. Without sub-division of the plot it was not possible to acquire and give its compensation. Defendant No. 3 called for a report from <ORG> regarding plot no.795 on the basis of possession and sub-division. After due inspection on the spot <ORG> sent its detailed report dated 30.3.2001 to the defendant no. 3 stating clearly the sub-divided shares as follows:-

Sr. No. Plot no. Rakba Farmer Name 1. 795/1 06-16-10 <NAME>, <NAME> and <NAME> 2. 795/2 09-08-05 Smt. Shashi Devi 3. 795/3 05-05-00 <NAME> 4. 795/4 04-03-05 <NAME> 5. 795/5 12-00-00 <NAME>, <NAME> and <NAME>

6. That according to Land Record Manual the provision to enter numbers in an account is to start numbering vis 1,2,3,4 from north-west to south east. In accordance to this provision only the above said sub-division was done which is also lawful. The plaintiff has no objection with the sub-division.

8. That it is important to clarify here that the plaintiff does not have any objection to the acquisition proceedings or the plot no.s which are subject to the acquisition. The plaintiff only states that acquisition be done only after sub-division of 795 according to the rules. The proceedings were initiated on the basis of the report of <NAME> dated 30.3.2001 and the compensation for 795/2 was prepared in the name of <NAME> and she was only shown as the Kastkaar in the said land and accordingly Akar part 11 was prepared and the notice under Section 14 was given to <NAME>. After wards at any subsequent stage records were manipulated and the plaintiff was shown as the Kastkaar of 795/2. The plaintiff had filed several objections, personally met with the officials of the defendants and given applications.

Inspite of some decisions of inquiries in favour of the plaintiff has not been given any relief and due to the fact that defendant no.3 has delivered possession to defendant no. 4 on papers, the defendants are trying to start construction after taking possession of the land of the plaintiff and are shying away from their legal duty.

10. That in the interest of justice it is necessary that the defendants be ordered that the acquisition and disbursement of compensation be done only after due inspection of plot no.795 and thereafter numbering it in accordance with law on the basis of possession. Because the defendants are not paying any heed to the justified claim of the plaintiff so this suit is being filed.

11. That the defendants are going to start construction on the site very soon and they have demarcated the land by embedding stones from which it is clear that they are going to possess the disputed land. In all these circumstances the notice u/s 80 CPC cannot be served upon the defendants and with the permission of <ORG>, this suit is being filed without the notice."

(underlining is ours) The main and substantive prayer made in the plaint, which is extracted below, also shows that respondent No.1 had not questioned the acquisition proceedings:

"That the defendants be directed by order of Mandatory Injunction to start afresh the proceedings of acquisition and disbursement of compensation after sub-dividing and numbering plot no. 795 in accordance with para no. 63 of the Land Record Manual. In the alternative acquire the land from all the account holders and thereby proportionally pay them respective compensation."

14. The above extracted portions of the plaint unmistakably show that respondent No.1 had no complaint against the acquisition of land or taking of possession by <ORG> and delivery thereof to the <ORG> and the only prayer made by him was that the defendants be directed to undertake fresh acquisition proceedings after sub-dividing plot No. 795 so that he may get his share of compensation. He filed writ petition questioning the acquisition proceedings after almost 9 years of publication of the declaration issued under Section 6(1) and about six years of the pronouncement of award by the Special Land Acquisition Officer. During this interregnum, the <ORG> took possession of the acquired land after depositing 80% of the compensation in terms of Section 17(3A) , prepared the layout, developed the acquired land, carved out plots, constructed flats for economically weaker sections of the society, invited applications and allotted plots and flats to the eligible persons belonging to economically weaker sections as also LIG, MIG and HIG categories. Unfortunately, <ORG> ignored all this and allowed the writ petition on the specious ground that the acquired land did not vest in <ORG> because physical possession of the land belonging to respondent No.1 was not taken till 31.7.2002 and the award was not passed within two years as per the mandate of Section 11A .

15. In our view, even if the objection of delay and laches had not been raised in the affidavits filed on behalf of the <ORG> and <ORG>, <ORG> was duty bound to take cognizance of the long time gap of 9 years between the issue of declaration under Section 6(1) and filing of the writ petition and declined relief to respondent No.1 on the ground that he was guilty of laches because the acquired land had been utilized for implementing the residential scheme and third party rights had been created.

The unexplained delay of about six years between the passing of award and filing of writ petition was also sufficient for refusing to entertain the prayer made in the writ petition.

16. It is true that no limitation has been prescribed for filing a petition under Article 226 of the Constitution but one of the several rules of self imposed restraint evolved by the superior courts is that <ORG> will not entertain petitions filed after long lapse of time because that may adversely affect the settled/crystallized rights of the parties. If the writ petition is filed beyond the period of limitation prescribed for filing a civil suit for similar cause, <ORG> will treat the delay unreasonable and decline to entertain the grievance of the petitioner on merits. <CITATION> AIR 1964 SC 1006, <ORG> considered the effect of delay in filing writ petition under Article 226 of the Constitution and held:

"............It has been made clear more than once that the power to give relief under Article 226 is a discretionary power. This is specially true in the case of power to issue writs in the nature of mandamus. Among the several matters which <ORG> rightly take into consideration in the exercise of that discretion is the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it..................... .........It is not easy nor is it desirable to lay down any Rule for universal application. It may however be stated as a general Rule that if there has been unreasonable delay the court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus. ...........................Learned counsel is right in his submission that the provisions of the Limitation Act do not as such apply to the granting of relief under Art 226. It appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in <ORG> must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. The court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the court to hold that it is unreasonable."

17. In matters involving challenge to the acquisition of land for public purpose, this Court has consistently held that delay in filing the writ petition should be viewed seriously and relief denied to the petitioner if he fails to offer plausible explanation for the delay. The Court has also held that the delay of even few years would be fatal to the cause of the petitioner, if the acquired land has been partly or wholly utilised for the public purpose.

18. <CITATION> , this Court approved dismissal by <ORG> of the writ petition filed by the appellant for quashing the acquisition of his land and observed:

"<ORG> held that the appellants were guilty of delay and laches. <ORG> relied on two important facts. First, that there was delivery of possession. The appellants alleged that it was a paper transaction. <ORG> rightly rejected that contention. Secondly, <ORG> said that the <ORG> invested several lakhs of rupees for the construction of roads and material for development purposes. The appellants were in full knowledge of the same. The appellants did not take any steps. <ORG> rightly said that to allow this type of challenge to an acquisition of large block of land piecemeal by the owners of some of the plots in succession would not be proper. If this type of challenge is encouraged the various owners of small plots will come up with writ petitions and hold up the acquisition proceedings for more than a generation. <ORG> rightly exercised discretion against the appellants. We do not see any reason to take a contrary view to the discretion exercised by <ORG>."

(emphasis supplied)

19. <CITATION> , this Court referred to Administrative Law H.W.R. Wade (7th Ed.) at pages 342-43 and observed:

"The order or action, if ultra vires the power, becomes void and it does not confer any right. But the action need not necessarily be set at naught in all events. Though the order may be void, if the party does not approach the <ORG> within reasonable time, which is always a question of fact and have the order invalidated or acquiesced or waived, the discretion of the <ORG> has to be exercised in a reasonable manner. When the discretion has been conferred on the <ORG>, the <ORG> may in appropriate case decline to grant the relief, even if it holds that the order was void. The net result is that extraordinary jurisdiction of the <ORG> may not be exercised in such circumstances........"

20. <CITATION> , the delay of 17 months was considered as a good ground for declining relief to the petitioner.

21. <CITATION> . , this Court held:

"It is thus well-settled law that when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the Court should be loath to quash the notifications. <ORG> has, no doubt, discretionary powers under Article 226 of the Constitution to quash the notification under Section 4(1) and declaration under Section 6 . But it should be exercised taking all relevant factors into pragmatic consideration. When the award was passed and possession was taken, the Court should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226. The fact that no third party rights were created in the case is hardly a ground for interference. <ORG> of <ORG> was not right in interfering with the discretion exercised by the learned Single Judge dismissing the writ petition on the ground of laches."

22. <CITATION> , this Court reversed the order of <ORG> and held that the writ petition filed for quashing of acquisition of land for a residential scheme framed by the appellant-<ORG> was liable to be dismissed on the ground that the same was filed after two years.

23. <CITATION> , the delay of 5 years was considered unreasonable and the order passed by <ORG> refusing to entertain the writ petition was confirmed. In that case also the petitioner had initially filed suit challenging the acquisition of land. The suit was dismissed in 2001. Thereafter, the writ petition was filed. This Court referred to an earlier judgment in <CITATION>  and observed:

" <CITATION> this Court had observed that civil suit was not maintainable and the remedy to question notification under Section 4 and the declaration under Section 6 of the Act was by filing a writ petition. Even thereafter the appellant, as noted above, pursued the suit in the civil court. The stand that five years after the filing of the suit, the decision was rendered does not in any way help the appellant. Even after the decision of this Court, the appellant continued to prosecute the suit till 2001, when the decision of this Court in 1995 had held that suit was not maintainable."

24. <CITATION> , the dismissal of writ petition filed after seven years of the publication of declaration and five years of the award passed by the Collector was upheld by the Court and it was observed:

"In the instant case, it is not the case of the petitioners that they had not been aware of the acquisition proceedings as the only ground taken in the writ petition has been that substance of the notification under Section 4 and declaration under Section 6 of the 1894 Act had been published in the newspapers having no wide circulation. Even if the submission made by the petitioners is accepted, it cannot be presumed that they could not be aware of the acquisition proceedings for the reason that a very huge chunk of land belonging to a large number of tenure-holders had been notified for acquisition. Therefore, it should have been the talk of the town. Thus, it cannot be presumed that the petitioners could not have knowledge of the acquisition proceedings."

25. In this case, the acquired land was utilized for implementing Tulsi Nagar Residential Scheme inasmuch as after carrying out necessary development i.e. construction of roads, laying electricity, water and sewer lines etc. the <ORG> carved out plots, constructed flats for economically weaker sections and lower income group, invited applications for allotment of the plots and flats from general as well as reserved categories and allotted the same to eligible persons. In the process, the <ORG> not only incurred huge expenditure but also created third party rights. In this scenario, the delay of nine years from the date of publication of the declaration issued under Section 6(1) and almost six years from the date of passing of award should have been treated by <ORG> as more than sufficient for denying equitable relief to respondent No.1.

26. The two judgments relied upon by the learned counsel for respondent No.1 are not helpful to the cause of his client. In <ORG> v. V. <NAME> (2007) 9 SCC 304, this Court held that where the acquisition was found to be vitiated by fraud and mala fide, the delay in filing the writ petition cannot be made a ground for denying relief to the affected person. <CITATION> (supra), this Court held that the appellant cannot be denied relief merely because there was some delay in filing the writ petition. The facts of that case were that 34 kanals 2 marlas of land situated at Jind (Haryana) was acquired by <ORG> under Section 4 read with Section 17(2)(c) and 17(4) for construction of sewage treatment plant. Notification under Section 4 was issued on 23.11.2005 and declaration under Section 6 was issued on 2.1.2006. <ORG>, Narwana, filed suit for injuncting the <ORG> from constructing sewage treatment plant in front of the school. On 15.2.2006, <ORG> passed an order of injunction. In another suit filed by one <NAME> similar order was passed by <ORG>. After some time, the appellant filed writ petition under Article 226 of the Constitution.

Before this Court it was argued that relief should be denied to the appellant because there was delay in filing the writ petition. Rejecting this argument, the Court observed:

"Since Section 5-A of the LA Act had been dispensed with, the stage under Section 9 was arrived at within six months from the date of the notice issued under Sections 4 and 17(2)(c) of the LA Act. While such notice was issued on 23-11-2005, the award under Section 11 was made on 23-5-2006. During this period, the appellants filed a suit and thereafter, withdrew the same and filed a writ petition in an attempt to protect their constitutional right to the property. It cannot, therefore, be said that there was either any negligence or lapse or delay on the part of the appellants."

27. De hors the aforesaid conclusion, we are convinced that the premise on which <ORG> declared that the acquisition proceedings will be deemed to have lapsed because the award was not passed within two years is ex facie erroneous. Admittedly, the State Government had acquired the land by issuing notification under Section 4 read with Section 17(1) and (4), which was followed by a declaration issued under Section 6(1) read with Section 17(1) . By notification dated 7.9.1999, the Governor had directed Collector, <NAME> to take possession of the acquired land on the expiration of 15 days from the issue of notice under Section 9(1) . In furtherance of the direction given by the Collector, the concerned revenue authorities took possession of the acquired land, which, as mentioned above, has already been utilized for implementing Tulsi Nagar Residential Scheme. Though, respondent No.1 succeeded in convincing <ORG> that physical possession of his land had not been taken till 31.7.2002, after carefully perusing the record, we are convinced that the finding recorded on this issue is unsustainable. In paragraphs 8 and 11 of the plaint filed by him in <ORG> (<ORG>), <NAME>, respondent No.1 had virtually admitted that possession of the acquired land was with the <ORG>. If this was not so, there was no occasion for him to make a grievance that the land had been demarcated by putting stones and the <ORG> was in the process of raising construction. That apart, respondent No. 1 did not deny the statements contained in the affidavits filed before <ORG> that the revenue authorities visited the spot and made entries in the Field Book regarding delivery of possession. The photographs produced by the parties before this Court show that after taking possession of the acquired land, the <ORG> constructed roads,buildings etc., laid sewer lines and erected poles for electric lines. The photographs also reveal that by taking advantage of the impugned order, respondent No.1 took possession of a portion of the land on which the <ORG> had already carried out development. All this is sufficient to discard the claim of respondent No.1 that actual possession of the acquired land had not been delivered to the <ORG> till July, 2002.

28. What should be the mode of taking possession of the land acquired under the Act? This question was considered in <CITATION> . <NAME>, <NAME> referred to the provisions contained in Order XXI Rules 35, 36, 95 and 96 of the Code of Civil Procedure, decisions of different <ORG> and opined that even the delivery of so called "symbolical" possession is delivery of "actual"

possession of the right, title and interest of the judgment-debtor. <NAME>,<NAME>

further observed that if the property is land over which there is no building or structure, then delivery of possession over the judgment-debtor's property becomes complete and effective against him the moment the delivery is effected by going upon the land. The Learned Judge went on to say:

"When a public notice is published at a convenient place or near the land to be taken stating that the <ORG> intends to take possession of the land, then ordinarily and generally there should be no question of resisting or impeding the taking of possession. Delivery or giving of possession by the owner or the occupant of the land is not required. The Collector can enforce the surrender of the land to himself under Section 47 of the Act if impeded in taking possession. On publication of the notice under Section 9(1) claims to compensation for all interests in the land has to be made; be it the interest of the owner or of a person entitled to the occupation of the land. On the taking of possession of the land under Section 16 or 17 (1) it vests absolutely in the <ORG> free from all incumbrances. It is, therefore, clear that taking of possession within the meaning of Section 16 or 17 (1) means taking of possession on the spot. It is neither a possession on paper nor a "symbolical" possession as generally understood in civil law. But the question is what is the mode of taking possession? The Act 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 the spot that the authority has taken possession of the land. The presence of the owner or the occupant of the land to effectuate the taking of possession is not necessary. No further notice beyond that under Section 9(1) of the Act is required. When possession has been taken, the owner or the occupant of the land is dispossessed. Once possession has been taken the land vests in the <ORG>.

(emphasis supplied) <NAME>, (as he then was), speaking for himself and <NAME>, <NAME> disagreed with <NAME>, <NAME> and observed:

".........We think it is enough to state that when the <ORG> 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 <ORG> 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."

(emphasis supplied)

29. <CITATION> , the Court negatived the argument that even after finalization of the acquisition proceedings possession of the land continued with the appellant and observed:

"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, <NAME> has contended that the appellant still retained their possession. 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".

30. <CITATION> , the Court referred to the observations made by <NAME>, J. in <CITATION> (supra) that no hard and fast rule can be laid down as to what act would be sufficient to constitute taking of possession of the acquired land and observed that when there is no crop or structure on the land only symbolic possession could be taken.

31. <CITATION> , the Court noted that appellant <ORG> paid 80 per cent of the total compensation in terms of Section 17(3A) and observed that it is difficult to comprehend that after depositing that much of amount it had obtained possession only on a small fraction of land.

32. <CITATION>  and <CITATION> , it was held that when possession is to be taken of a large tract of land then it is permissible to take possession by a properly executed panchnama. Similar view was expressed in the recent judgment in <CITATION> 2011(2) SCALE 692.

33. The judgment in <CITATION> . (supra) on which reliance was placed by the learned senior counsel for respondent No.1 is clearly distinguishable. In that case, the <ORG> had found that possession of the acquired land had not been taken by the <ORG> and the award was not passed even after two years from the date of coming into force of the Land Acquisition (Amendment) Act , 1984 whereby Section 11A was inserted in the Act.

34. The principles which can be culled out from the above noted judgments are:

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 <ORG> and 80% of the total compensation is deposited in terms of Section 17(3A) and substantial portion of the acquired land has been utilised in furtherance of the particular public purpose, then the <ORG> may reasonably presume that possession of the acquired land has been taken.

35. In the light of the above discussion, we hold that the action of the concerned State authorities to go to the spot and prepare panchnama showing delivery of possession was sufficient for recording a finding that actual possession of the entire acquired land had been taken and handed over to the <ORG>. The utilization of the major portion of the acquired land for the public purpose for which it was acquired is clearly indicative of the fact that actual possession of the acquired land had been taken by the <ORG>.

36. Once it is held that possession of the acquired land was handed over to the <ORG> on 30.6.2001, the view taken by <ORG> that the acquisition proceedings had lapsed due to non-compliance of Section 11A cannot be sustained. <CITATION> . (supra), this Court considered the applicability of Section 11A in cases involving acquisition of land under Section 4 read with Section 17 and observed:

"Ordinarily, the <ORG> can take possession of the land proposed to be acquired only after an award of compensation in respect thereof has been made under Section 11 . Upon the taking of possession the land vests in the <ORG>, that is to say, the owner of the land loses to the <ORG> the title to it. This is what Section 16 states. The provisions of Section 11-A are intended to benefit the landowner and ensure that the award is made within a period of two years from the date of the Section 6 declaration. In the ordinary case, therefore, when <ORG> fails to make an award within two years of the declaration under Section 6 , the land has still not vested in the <ORG> and its title remains with the owner, the acquisition proceedings are still pending and, by virtue of the provisions of Section 11-A , lapse. When Section 17(1) is applied by reason of urgency, <ORG> takes possession of the land prior to the making of the award under Section 11 and thereupon the owner is divested of the title to the land which is vested in the <ORG>. 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 have already vested in the <ORG> and there is no provision in the said Act by which land statutorily vested in the <ORG> can revert to the owner."

(emphasis supplied)

37. The same view was reiterated in <CITATION> (supra), <CITATION> (supra), <CITATION> , <CITATION> (supra) and <CITATION> (supra).

38. In the result, the appeal is allowed. The impugned order is set aside and the writ petition filed by respondent No.1 is dismissed with cost quantified at Rs.1,00,000/-. Respondent No.1 shall deposit the amount of cost with the appellant within a period of two months from today.

.......J.

[G.S. Singhvi] ..............................J.

[<NAME>] New Delhi April 26, 2011.


ORDER

1. This judgment is by way of postscript.

2. On January 18, 1971, the plaintiff brought a suit for specific performance against the defendant. Specific performance was sought in respect of agricultural land measuring 48 bighas and 10 biswas owned by the defendant in village Khampur, Sub-Tehsil Mehrauli. The defendant had agreed to sell the land to the plaintiff. As he did not convey the property the plaintiff brought the suit.

3. On November 1, 1973, before <ORG> the parties reached a compromise. The terms were reduced, to writing. The suit was decreed in terms of the compromise.

4. The term of the compromise was that the plaintiff will pay Rs. 50,000 over the original agreed price of Rupees 66,100 which he had already paid to the defendant. The total consideration for the sale of the property was therefore agreed at Rs. 1,16,100 at the time of the compromise.

5. In terms of the compromise the plaintiff deposited Rs. 50,000 in <ORG> on December 25, 1973, But the defendant did not deliver possession o& land agreed to be sold.

6. The plaintiff-decree-holder made an application for the execution of the decree (I. A. 1779 of 1974) and the execution proceedings started. In his application the plaintiff sought possession of the land.

7. The defendant's principal objection to the delivery of possession was that there was no claim for possession in the original plaint and there was no decree for possession against him. He, therefore, said that there cannot be an order for delivery of possession.

8. In the original plaint the plaintiff's claim was in these words: "a decree directing the sale of the land in his favor be passed against the defendant ..........."

9. <ORG> recorded the statements of the parties. Both of them agreed that a decree may be passed in favor of the plaintiff against the defendant. The only essential term of the compromise was, as I have mid, that the consideration was Rs. 1,16,100 instead of Rs. 66,100. <ORG> decreed the suit on November 1, 1973 in terms of the compromise.

10. On January 14, 19,75, the plaintiff moved an application for the amendment of the original plaint (I. A. 166 of 1975). He sought leave to add the following: "The plaintiff be also granted a decree for possession of the suit land and the possession of the same be delivered to him."

11. Since the relief of possession was not included in the original plaint this was now sought to be added, by way of amendment. The defendant opposed this application. I allowed the amendment of the plaint on May 23, 1975 (Reported in Air 1976 Delhi 516).

12. The defendant appealed to <ORG> against my order dated May 23, 1975. <ORG> my order dated July 23, 1975 said that apart from the fact that the impugned order was not appealable, "we see no ground to interfere on merits". The appeal was dismissed at a preliminary hearing.

13. The defendant has now filed the written statement to the amended plaint. He has verbatim reproduced all the defenses which he originally took. The only new thing which he has said in the written statement is in paragraph 2 of his preliminary objections where the following words appear which were not there in the original written statement: "The plaintiff has now added the prayer of possession."

14. Therefore it comes to this. The suit for specific performance was compromised between the parties. The plaintiff had omitted to ask for the relief of possession. Under the Specific Relief Act , 1963 Section 22 makes it incumbent on a plaintiff to ask for possession of the property in addition to specific performance. Sub-section (2) of that section provides that if in a suit for specific performance the plaintiff has omitted to ask for the possession of the property in addition to the relief of specific performance no relief will be granted by the court unless it is specifically claimed. The effect of the section therefore is that in a suit for specific performance prayer for possession must be distinctly and specifically made.

15. When in execution the plaintiff claimed possession the defendant raised a formidable objection. He said that possession could not be delivered as there was no prayer in the original plaint. Section 22 was the requirement of the new Act of 1963. There was no such provision in the Specific Relief Act of 1877. It seems that the lawyers had not familiarised themselves with the provisions of the new Act. These were the early days of the Act. Therefore this difficulty arose which came to notice subsequently in the course of the execution proceedings. By the amendment I allowed the prayer for possession to be added.

16. What is to be done now? Where do we go from here? This is the question. The plaint has been amended. Written statement has been filed to the amended plaint.

17. The counsel for the defendant submits that there should be now a full length trial of the suit since the compromise on which the decree of <NAME> was based has now fallen through as there is an amendment of the plaint. It is said that by asking for amendment of the plaint the plaintiff has made it clear that he is no longer bound by the compromise. Parties have, it is said, gone back to the Initial stage and it is not open to the plaintiff to rely or lean upon the compromise.

18. The counsel for the defendant has elaborated his submission by saying that equitable considerations have in the meanwhile come into existence. The equitable considerations, he said, are that his plea with regard to fraud, misrepresentation etc. taken in the original written statement now calls for an investigation since the plaintiff himself has abandoned, the compromise and has gone back to the original plaint by asking for its amendment.

19. It appears to me that this objection is purely technical and arid. It is without merits. The plaintiff had forgotten or omitted to ask for the relief of possession in the plaint. All that I allowed is that I permitted the plaintiff to amend the prayer in the plaint.

20. When the compromise was made the defendant bad agreed not only to execute the sale deed but also to deliver possession to the plaintiff for the sum of Rs. 1,16,100. This is how I read the compromise. The counsel says that the defendant never agreed to deliver possession. All that he undertook was that he would execute the sale deed but not to deliver possession. I cannot subscribe to this reasoning. This will mean injustice. The plaintiff will get nothing. Delivery of possession is a necessary ingredient and part of transfer of ownership. In fact this is what specific performance means. It means taking possession of certain property and delivering it to a claimant: See Section 5 of the Specific Relief Act of 1877. The defendant knew that a decree for specific performance will mean that he will have to hand over possession of the land for the money he had agreed to receive. Now he cannot take advantage of a technical flaw. Equity looks on that as done which ought to be done. This is what I held in my order dated May 23, 1975.

21. The defendant himself has said before the court in execution proceedings that he was prepared to hand over possession. As he did not deliver possession I appointed a receiver who has since taken possession of the land from him. The defendant appealed against that order. It was upheld in appeal.

22. The counsel for the defendant has argued that now his objection to the suit in the present form is that such a suit is not maintainable in the civil court. The suit is barred, he says, by the provisions of Delhi Land Reforms Act of 1954. He has referred me to the decision of <ORG> in <CITATION> , .

23. This objection was taken by the defendant in the original written statement also. There he had said that "the suit is barred by the provisions of the Delhi Land Reforms Act and is not maintainable and is liable to be dismissed. The answering defendants will be left with less than 8 Standard Acres of land which contravenes the provisions of law and bars the present suit."

24. This objection was abandoned by the defendant when he compromised the suit. Again it was raised before me at the execution stage. I decided it on May 23, 1975 (1. A. 85 of 1975)* as well as in my order dated September 30, 1974.

25. I am therefore of the view that the original compromise stands. It is binding on both parties. The compromise has not fallen through simply because the prayer for possession has been added to the claim of specific performance. I do not think any trial of the suit is necessary. Trial for what ? The defendant himself agreed to the compromise. He made a statement. In his own compromise petition dated October 31, 1973 (I. A. 2819 of 1973) he agreed to the "decree for specific performance" being passed against him. He agreed to the "sale price" of Rupees 1,16,100. He agreed to "execute the sale deed" on payment of the further sum of Rs. 50,000. What does all this mean? I think this means that he agreed to sell the land. Sale does not mean merely a paper sale. It also means delivery of possession.

26. The remedy of specific performance was forged by <ORG> in England. It is an equitable relief. Equity looks to the substance and not mere form. The kernel of the thing is the compromise for sale of land. In what words the claim in the plaint should be couched is essentially a mutter for lawyers. It relates to the form of the suit. The Act of 1963 says that a plaintiff must ask for both specific performance as well as possession. The addition of the prayer for possession does not alter the essence of the thing. For the consideration the plaintiff has paid he must have both the sale deed as well as delivery of possession. Claims of justice cannot be overlooked, only in this way I think law can the vindicated and justice can be done.

27. I would therefore order that the defendant shall deliver possession of the land to the plaintiff. The suit is decreed in terms of the prayer made in the plaint.

28. This order will be by way of an addendum and erattum to the order of <NAME> dated November 1, 1973. It is no more than an appendix or a supplement. This would have no meaning except by reference to the judgment and the compromise on which that judgment is founded.

29. The decree dated November 1, 1973 will be accordingly amended. In the decree after the words "and accordingly the matter be and the same is hereby decreed in terms thereof' the following words shall be added: "The plaintiff is also hereby granted a decree for possession of the suit land."

30. In the circumstances of the case I leave the parties to bear their own costs.

31. Order accordingly.


ORDER <NAME>, J.

1. This is a petition for the issue of a writ of certiorari to call for the records in Industrial dispute No. 23 of 1952, before <ORG>, Madras, and <ORG>, on appeal therefrom and to quash the proceedings thereof.

2. The petition arises out of a dispute between a cinema concern by name <ORG> and certain workmen of <ORG>, represented by <ORG>. The facts giving rise to this dispute are as follows:

3. In premises No. 8-A in woods Road, Roya-pettah, the owners of the building thereon were carrying on a cinema business under the name of <ORG> having fitted it up with the furniture, talkies equipment, electrical machinery etc. They had on their rolls a number of workmen, who are collectively the first respondents in this writ petition. While so a firm by name <ORG>, who are carrying on the business of running cinemas in several places in India under the name of <ORG>, approached the owners of these premises for a lease of the building to enable them to conduct their own cinema business in the said place.

The negotiations were started towards the end of March 1952 and finally resulted in an agreement for a lease, under which the owners of the theatre building agreed to lease the premises and its equipment to Messrs. <NAME> and <ORG> for a period of five years, with a covenant for renewal for a further period of five years. It was part of the agreement that the owners of the buildings should get transferred to their lessees the electrical licence as well as the licence under the Cinematograph Act for the purpose of conducting the cinema, and this was made a condition precedent to the agreement of lease becoming operative.

A formal lease deed was finally executed on 3-5-1952 to be effective as and from 1-5-1952 and under the terms thereof Rs. 25,000 was paid to the lessors as security for the proper return of the equipment and accessories and the lessees agreed to pay a rent of Rs. 4250 per mensem for the building and the premises and the hire of the furniture, electrical fittings, machinery and cinema equipment, etc. out of this sum of Rs. 4250, Rs. 2000 was allocated as rent for the premises, Rs. 1000 as hire for the furniture and Rs. 1250 as hire for the machinery, electrical fittings. There are other terms and conditions in the lease of these buildings and equipment, but is unnecessary to set them out as none of them have any bearing or relevance to the matters arising for consideration in this writ petition.

4. In accordance with the terms of the agreement the lessors intimated to <NAME> the fact of their entering into this lease and requesting that the electrical certificate and the licence might be transferred to the name of the lessees and these were got transferred.

5. The lessees effected some repairs and alterations to the structure of the theatre, after their entry into possession of the demised premises on 3-5-1952 and started their business on and from 22-6-1952. Meanwhile on 1-5-1952 a list of the staff, who were till then in the employ of the lessors was handed over to the lessees and on 3-5-1952 it is stated that these members of the previous staff were introduced to the lessees at the theatre, premises. The lessees according to their case, intimated to the workers previously in the employ of the lessors that they would absorb into their service as many as were needed by them for their business, and they called upon the staff to apply to them for employment.

This gave rise to some misapprehensions on the part of the workmen and some of the workers addressed the lessees a letter on 13-5-1952, in which they informed these lessees that the lessors had been giving out that the services of the entire staff have been transferred to the lessees, and requesting that their services might be continued with the existing pay, allowances and amenities which they were enjoying theretofore. They also 'sought the assistance of <ORG> to safeguard their rights.

The President of <ORG> intervened with a letter to the labour Officer dated 15-5-1952 wherein he pointed out that the staff had been informed by the lessors that their services had been transferred to and would be continued under the lessees, that the lessees refused to entertain the staff, without fresh application for appointments, and requesting the officer to hold an enquiry into the matter, and advice the lessees to retain all the workers. A letter similar to the above and praying for similar action was addressed to the lessees. The Labour Officer Wok action on this and had a discussion with the lessees, who assured him that their intention was not to victimise any worker.

The secretary of <ORG> met the lessees and after a discussion found out that they were prepared to take such of the staff as they required but without any continuity from previous service. He, therefore, requested the Labour Officer to initiate proceedings for conciliation of this dispute. The conciliation officer reported to the Government by a communication dated 20-6-1952 that the conciliation failed and that while the lessees were prepared to take in all the old workers, except two women ticket collectors and two scavenger women and a gate servant they would not agree to treat service under the lessors as part of the service under them for the purpose of promotion, gratuity etc. The claim of the lessees was that the five workers, whom they refused to employ were supernumerary to their requirements, and on that account they refused to take them over. This was treated as an industrial dispute and <ORG> referred this dispute to <ORG>, Madras, for adjudication in G. O. Ms. No. 3361, Development, dated 4-8-1952. The matter referred to for adjudication was whether the workers of <ORG> were entitled to be continued in the service of <ORG> under their old service conditions and if they were not, to what compensation were they entitled from <ORG>?

6. The parties appeared before <ORG>, and the lessees raised the contention that there was no "industrial dispute" between them and those workers which was capable of being referred for adjudication to a tribunal under Section 10(1)(c) . <ORG> took evidence on the matter which was in the form of the correspondence, which passed between the workers and the lessors and between them find the lessees as also copies of certain letters addressed by the lessors to <NAME>, etc. The workers also examined four witnesses in proof of their case,

7. The <ORG>, after setting out the facts, examined the point raised by the employers that there was really no Industrial dispute between them and the other party before the <ORG>. The findings of the <ORG> may be summarised thus. There was no transfer of the business by <ORG> to <ORG> as ad-mittedly the new management have not succeeded to the assets and liabilities of the old business. There is, therefore, no legal continuity so far as the management is concerned. But there was evidence in the case that the lessees assured the lessors that they would absorb the staff of the previous concern. They also gave similar assurances to the members of the staff. In the words of the <ORG>, "On the materials placed before me it looks quite patent that the lessee did give an oral undertaking to continue the staff under his management also."

The <ORG> further continues, "Even assuming for a moment that there was really no arrangement or understanding between the parties to the lease to continue the staff of <ORG> in the employ of <ORG> under the pre-existing conditions, that would mean that the staff has no contractual rights to enforce against the management of <ORG> for its continuance in service. It does not mean that the staff possesses no other right legal or equitable to claim continuance of service under the new management."

On this finding, the <ORG> stated: "I am of the opinion that the management of <ORG> is under an obligation, legal and contractual to continue the staff under its old service conditions except to the extent to which any member of the staff has already agreed to serve under different conditions", and the <ORG> passed an award accordingly. This has been affirmed by the Labour Appellate <ORG> and it is this award that is being challenged before me as incompetent and in excess of jurisdiction.

8. Two points are raised by the learned counsel for the petitioners. The first is that even on the findings of the <ORG> there was no "industrial dispute" which could have been referred to it for adjudication and therefore, both the reference to the <ORG> as well the award passed by it are entirely without jurisdiction. Secondly it is urged that the reasoning of the <ORG> and its consequent decision are vitiated by error apparent on the face of the record. On these grounds learned counsel for the petitioner contends that this Court should quash the award of the tribunal.

9. I shall consider these two points in that order. Under the terms of Section 10(1)(c) , industrial Disputes Act , it is clear there must be an "industrial dispute" either 'in praesenti' or apprehended before the appropriate <ORG> has power or jurisdiction to make a reference to a Tribunal for adjudication. In other words, the existence of prospect of an 'industrial dispute' is an essential pre-requisite for the exercise by <ORG> of their power under the provision. The expression "industrial dispute" is defined by Section 3(k) of the Act as meaning "any dispute or difference between employers and employers or employers and workmen, or between workmen and workmen, which is con-

nected with the employment or non-employ-ment, or the term of employment or the conditions of labour of any person." As in the present case, the portion of the provision which could possibly apply is "a dispute between employers and workmen" reference may be made to the definition of "workman" which is in these terms:

"Workman means any person employed (including an apprentice) in any industry to do any skilled or unskilled manual or clerical work for hire or reward and includes, for the purposes of any proceedings under this Act in relation to an industrial dispute, a workman discharged during the dispute but does not include any person employed in the naval, military or air service of the Government." The finding of the <ORG> on the evidence adduced before it is thaE the petitioners assured the workers that all the previous employees under the lessors would be entertained and taken in their own employment but that in breach of this promise, they subsequently refused to employ all these persons and offered to take in only a certain number of them and on terms of service different from what these persons would have enjoyed if their previous employment had been continued under the petitioners (LESSORS?). The petitioners are attacking this finding but for the purpose of considering the first point it has to be assumed that this finding is correct.

10. In order that there might be an industrial dispute, there must be differences between employers and workmen -- to mention that part of the definition, which is relevant to the present context. In other words there must at some stage exist a relationship of employer and workmen between the disputants before there can be an Industrial dispute. If such a relationship once existed but is subsequently terminated the manner of its termination might conceivably give rise to an industrial dispute. That is to say an industrial dispute might exist (1) between an employer and workmen employed under him on the date of the proceedings; (2) it might also arise between employers and persons who had at one time been employed under them but whose services have been terminated.

But the question is can there be an industrial dispute between an employer and a person who merely desires to get employed under the former or a person who has been promised employment; in other words, between an employer and a would be workman? It is true that in cases where a person has once been employed, and the dispute relates to his non-employment, the <ORG> have held that there is power in <ORG> to direct the re-instatement of such employee, and that the expression "connected with the non-employment of any person" is apt to confer upon the <ORG> power to make such an order of re-in-statement.

But in a case where the employment has not started at all, but is merely in the stage of a contract, which is the most that can be put forward by the workers in the present case, can there be an industrial dispute between an employer and a person whom he has agreed to take into his employ, but whom he has never employed: I am clearly of the opinion that it would be straining the language of Section 2(k) to say that in such a case an industrial dispute exists. A mere contract to employ the workers which is in substance the basis of the present award does not constitute the person who is agreed to be taken into employ a workman within the meaning of Section 2(s) .

In my judgment, a dispute between employers and workmen would include disputes between employers and their present workmen; between the employers and their ex-workmen but not between employers and would be or future workmen. The mere existence of- a contract to employ does not constitute a relationship of master and servant between the employer and the person who has been promised employment. Until this contract is performed and the servant is actually employed, the relationship of employer and workmen is not constituted with the result that any differences between the parties to the contract must be resolved in the ordinary courts by a suit for damages, and does not give rise to an industrial dispute.

Accepting therefore the finding of the <ORG> as on a question of fact, that there was an understanding between the petitioners and the workers under the lessors that the latter would be employed in the business of the former, the staff are not converted into workers under the lessees under Section 2(s) nor can there be any industrial dispute between them and these workers under Section 2(K) . I, therefore, hold that there was no industrial dispute within the meaning of the Industrial Disputes Act which could have been referred to a tribunal for adjudication; nor could the <ORG> have jurisdiction to adjudicate upon such a dispute.

11. The next point that is raised is that the award of <ORG> is vitiated by error apparent on the face of the record. These matters in respect of which this contention is raised are two. On a reference to a letter dated 10-3-1952 written by the lessee and marked as W. 21 as proving that the lessees had agreed to take over the staff and the second the use of letters addressed by the lessors to <ORG> to prove that the petitioners had undertaken to continue in their service the staff of <ORG>, on the same terms without any break in the continuity of their service.

In the view which I have expressed above regarding the absence of any industrial dispute and the want of jurisdiction in the <ORG> and the <ORG> to have an adjudication upon such dispute, these contentions regarding the errors in the award might not arise for consideration. But as the point has been argued, I desire to express my opinion on these contentions.

12. The letter dated 10-3-1952 was addressed by the lessees to a friend of theirs and is in these terms:

"Unfortunately I have lost the address of the owners of <ORG> and cannot write to them direct. However you may please convey to them that I am only interested to take over the theatre if the owner is prepared to accept Rs. 4000 a month for five years' lease with an option of renewal for another five years. I cannot pay anything more than this. We shall have the complete control of the theatre without any interference, whatsover.. The staff etc. will be paid by us direct; in other words the cinema will be leased to us. If the owner is agreeable I am quite prepared to tafee a flight to Madras and settle everything personally."

This document has been used by the <ORG> for the purpose of drawing the inference that the lessees agreed to continue the old staff under the new management. I agree that there is force in the contention raised by Mr. <NAME> for the petitioners that the <ORG> has committed an error both in understanding this document, as well as utilising it for the purpose of construing the obligations undertaken by the lessees under the instrument of lease.

13. In the first place the only proper construction of this document is that the writer does not desire to take a lease of a theatre, where the staff under the control of the lessors and expresses a desire that the staff, which would be employed in the theatre, would be his own staff. It is incapable of the construction that he desired to takeover the old staff as part of the equipment or paraphernalia of the business premises of which he took a lease.

14. In the second place, when once the terms of a contract are reduced to the form of a document, particularly to the form of a registered lease deed, as in the present case, nothing is better settled than that the contract must be construed according to its terms, and cannot be explained or interpreted by antecedent negotiation that led upto it. See -- 'Bommanji v. Secretary of State', AIR 1929 PC 34 at p. 36 (A). There is, therefore, error in the award of the <ORG> in relying upon this document for the purpose of construing the obligations of the lease (lessees?) under the deed of lease dated 3-5-1952.

15. The second item referred to by the learned Counsel for petitioners under this head is that the <ORG> improperly took into account certain letters, written by the lessors to <ORG> in the course of which it was stated that the lessees had undertaken to continue the then existing staff. These letters were addressed behind the back of the lessors and certainly they cannot be used against them, and the <ORG> was in error in treating them as evidence, which could be taken into account to determine their obligations under the lease deed.

16. <ORG> has cited a number of decisions of other <ORG>, in the course of which it has been held that where there is a transfer of a business of one management to another, the rights and obligations which existed as between the old management and their workers continue to exist, 'vis-a-vis' the new management, after the date of the transfer. The learned counsel for the petitioners does not challenge the correctness of these decisions, which really are an application of the principle embodied in Section 18(c) , Industrial Disputes Act . But these decisions and the principle settled by them are inapplicable to the present case, because here there is admittedly no transfer of business, no taking over of the assets and liabilities, but only a new business is being conducted in the same premises where theretofore another separate business was being conducted by another individual. There is thus a complete hiatus between the one management and the other, and there is no link to connect the two managements except the fact that a somewhat similar business is being carried on in the same premises. In my judgment this does not enable the workers to contend that there is such a continuity as to constitute the lessees the successors in business of the lessors.

17. If continuity is eliminated the only ground upon which the claim of the workers could be sustained is on the basis of actual employment and not merely a contract to employ which is the utmost they can put forward on the facts of the present case. As I have mentioned above, this is wholly insufficient to enable an industrial dispute being raised to compel an employer to admit into his employ persons who never occupied in relation to him the position of a workman.

18. When the petitioners took the matter in appeal to <ORG>, it was dismissed on the ground that no point of law arose for consideration so that we have an award of <ORG>, which is now sought to be enforced. In view of what I have stated before, it follows that this award is without jurisdiction.

19. The writ petition succeeds and the award of <ORG>, Madras, in I. D. No. 23 of 1952 is quashed. The petitioners are entitled to their costs from the first respondent, which is fixed at Rs. 100/-.