B. L. Yadav, J. - (1.) -
(2.) THE present petition under Article 226 of the Constitution of India, is directed against the order dated 15-5-1980 passed by Respondent no. 2 (the Additional City Magistrate-11, Allahabad). The petitioner as a tenant has claimed relief for issuance of a writ of certiorari quashing the order dated 15-5-1980 (as quoted in para 15 of the writ petition) and for quashing the entire proceedings in Case No. 11/79 under section 4 of U. P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972 (for short the U. P. Act). Second Relief is for quashing the entire land acquisition proceedings relating to premises No. 18, Stanley Road, Allahabad, and the notification dated 11-12-1965 (Annexure-6), the award dated 7-12-1970 (Annexure-15) and, the possession memo dated 25-3-1976 (Annexures 21 and 18). The third relief is for a writ of mandamus directing the respondents not to interfere with the possession of the petitioner over the premises and the vacant land appurtenant to the said premises. The owner of the premises and the land sought to be acquired is Panchayati Akhara, Daraganj, Allahabad. 3 The sequence of events leading to the present petition is that the Nagar Mahapalika, Allahabad, framed a Housing Scheme named 18, Stanely Road, Grah Sthan Yogan, a Scheme for the purposes of providing housing accommodation and for the said purpose, proposed to acquire the land situate in premises No. 18, Stanely Road, Allahabad and a notification, dated 18-25-8-62 and 1-9-62 as required by Section 357 of the Nagar Mahapalika Adhiniyam, 1959 (for short the Adhiniyam), were published (Annexure-5). The acquisition proceedings commenced under the provisions of the Land Acquisition Act, 1894 (for short the Act). In fact, the provisions of the Act as modified by Schedule II of the Adhiniyam were made applicable. The objections were invited as contemplated by the Section 5-A of the Act and they were disposed of. After considering the report made under Section 5-A, a declaration was made to the effect that the land was needed for a public purpose and the requisite notification was issued. An award, in connection with the payment of compensation to the owner of the land, was prepared by the Collector under section 11 and the same became final and conclusive in view of section 12 of the Act. The Collector ultimately directed his nominee to take possession of the land alongwith constructions on 25-3-1975 and the said possession was taken in view of section 16 of the Act. As the tenant, sub-tenant or the licensees were residing, hence the possession obtained appears to be a symbolic. Sri Keshav Dayal, father of the petitioner was a tenant of a portion of the premises and some other persons (not party to the present petition) were sub-tenants or licensees. On their behalf Writ Petition No. 8850 of 1979, Punni Lal v. State of U. P., and Writ Petition No. 1101 of 1980 Smt. Sunder v. State of U. P., have been filed and the same have been decided by a separate judgment. 4. After the possession was taken under section 16 of the Act on the aforesaid date, the land alongwith the accommodation apparently vested in the Collector absolutely free from all encumbrances. Even though the tenant or subtenants or licensees might be residing in some portion, nevertheless, their rights came to an end and vested in the Collector and the possession was delivered to the Nagar Mahapalika, who in its turn delivered the same to the Asstt. Court Officer on behalf of the Registrar, High Court, Allahabad. The possession of the tenants or the sub-tenants or licensees, if any, after the land alongwith construction vested in the Collector, became unauthorised and they cannot be deemed to be tenant or sub-tenant or licensee on behalf of Collector. The premises in dispute became the " public premises " within the meaning of section 2 (e) of the U. P. Act. A notice under section 4 of the U. P. Act was given to the petitioner as tenant and also to the sub-tenant or licensees to show cause against the proposed order of eviction as an unauthorised occupant. The present petition is confined to the claim of the petitioner as an heir of the original tenant Keshav Dayal, the owner of the premises and the land, the Panchayati Akhara, Daraganj, Allahabad, has not filed the writ petition. 5. The petitioner filed an objection in reply to the notice under section 4 of the U. P. Act, challenging the Land Acquisition proceedings principally on the ground that no possession of the premises was taken under Section 16 of the Act on the spot as the petitioner as tenant is 'living, hence the acquisition proceedings were not legal nor the rights of the owner vested in the Collector, nor the possession of the petitioner became unauthorised. The premises was not a " public premises ", and the notices under section 4 of the U. P. Act were also illegal. The appointment by the State Government, however, of Sub-Divisional Officer, Additional Sub-Divisional Officer and the Additional City Magistrate as the Prescribed Authority within the meaning of section 4 of the U. P. Act was illegal. Reliance was placed on Balwant Narain Bhagwade v. M. D. Bhagwati, AIR 1975 SC 1767. 6. The Standing Counsel appearing for the respondents on the other hand relying on some observations of the same case Balwant Narain Bhagwade v. M. D. Bhagwati (supra) urged that the possession was legally taken under section 16 of the Act, in view of the nature of land and construction. A portion of the premises was in the occupation of the tenant, the present petitioner, consequently the possession taken on 25-3-1975 by the Collector on behalf of the Nagar Mahapalika and the transfer of the same to the Assistant Court Officer, on behalf of the Registrar of the High Court was sufficient legal possession free from all encumbrances. Since 25-3-1975 the possession of the tenant or the sub-tenant or the licensee became unauthorised within the meaning of Section 4 of the U. P. Act. The notices under section 4 of the U. P. Act have been correctly served on the petitioner, who has no right left and being an unauthorised occupant of a public premises was liable to eviction. 7. Having heard the learned counsel for the parties, the points for determination are whether in view of sections 16 and 17 of the Act, the possession was taken on the spot and as a consequence thereof, rights and title of owner, the tenant or the sub-tenant etc. vested in the Collector or the Nagar Mahapalika or in the High Court free from all encumbrances, and as to whether the petitioner was an " unauthorised occupant ", of a " public premises " as given under section 2 (b) of the U. P. Act and whether the Prescribed Authority must have decided as a preliminary point the question pertaining to the appointment of Additional City Magistrate etc. as the Prescribed Authority. 8. As regards the first question, the provisions of sections 16, 17 and 48 (1) of the Act have to be read alongwith Order 21 Rules 35, 36, 95 and 96 of the Code of Civil Procedure (for short the Code). Order 21 Rule 35 of the Code is to the effect that where a decree for delivery of any immovable property is to be executed, the possession thereof shall be delivered to the party whom it has been ad-judged (i. e. decree-holder) or to such person as he may appoint to receive the delivery on his behalf, and, if necessary, by removing any other person bound by the decree, who refuses to vacate the property. Rule 36 provides that where a decree is for the delivery of any immovable property in the occupation of a tenant or other persons entitled to occupy the same, but not bound by the decree, the Court shall order delivery to be made by affixing a copy of the warrant in some conspicuous place of property and proclaiming to the occupant by beat of drum or other customary mode at some convenient place, the substance of the decree in regard to the property. It is thus clear that the tenant need not be ejected immediately when the property is delivered to the decree holder. Rule 96 has to be read alongwith Rule 36, inasmuch as, Rule 96 enacts that where the property is sold, but in fact, it is in the occupancy of the tenant, the Court shall on the application of the purchaser, order delivery to be made by affixing a copy of certificate of sale on some conspicuous place on the property and proclaiming to the occupant and indicating by beat of drum that the interest of the judgment debtor has been transferred to the purchaser. There is a U. P. Amendment for adding Rule 96-A after Rule 96. Rule 96-A is to the effect that the Court executing a decree may either on its own motion or application and on such terms as it thinks fit and as acceptable to the transferee, order that any property of the judgment-debtor attached by it, be transferred otherwise than by sale in favour of the decree-holder. Whereas sub-rule (2) of Rule 96-A provides that rules 64 to 103 of Order 21 shall apply to the transfer other than sale made under this rule. The court may dispense with the necessity of such transfer being made after issuing a proclamation or of the transfer being conducted by an officer of the Court by public auction or after issuing a proclamation. 9. Rule 95 of Order 21 of the Code provides that some body other than a judgment debtor is an occupant the Court can order delivery to be made to the puachaser by the removing any person who refuses to vacate the same. These Rules of the Code prescribed that if the property is in occupation of a judgment debtor or some one else on his behalf, the possession shall be given to the decree-holder or the purchaser, if necessary by removing the judgment debtor and placing the decree-holder or the auction purchaser, in occupation of the same. If the property, however, is of such a nature that the judgment debtor cannot be in actual occupation of it, in case the property is in possession of a tenant, the only mode of giving the possession is by proclaiming on spot that the possession has been given to the decree-holder or the auction purchaser. The former mode of delivery of possession is called actual and the latter a symbolical. But strictly speaking the delivery of symbolical possession is, in fact, delivery of actual possession of the right, title and interest of judgment debtor or some one else i. e. tenant on his behalf, for all practical purposes. But one thing very important is that these salutary provisions under Order 21 Rules 35, 36, 95 and 96 or Rule 96-A provide the mode for delivery of possession of the property by a judgment debtor to the decree-holder or auction purchaser. Whereas, the Legislature has deliberately not used the word the delivery of possession by owner of the property in land acquisition proceedings to the State or authority acquiring the property, may be, the Nagar Mahapalika or the High Court. 10. Ex abundanti cautela, the statutory provisions of Section 16 of the Land Acquisition Act may be set out below :- " 16. Power to take possession :-When the Collector has made an award under Section 11 he may take possession of the land, which shall thereupon vest absolutely in the Govt, free from all encumbranees. " 11. Before coming to the interpretation of Section 16, it is pertinent to bear in mind that the land acquisition proceedings in this country are consequence of the exercise of the right of eminent domain. But that right is to be exercised in the interest of public or on account of public exigency and for public good. Under the provisions of the Act, nowhere, it has been indicated except in the case where acquisition is made by agreement that the owner can exercise his willingness or he can deliver possession even after the award has been made. The words in the different provisions of the Act have been designedly used to indicate that the State is exercising or imposing its superior power and will and the subject or the individual owner has almost no say in the matter. 12. In fact, where the right of eminent domain is exercised for the public good, the private individual must yield his rights before willingness of the State. There is a latin maxim ' sanus populi est suprema le ', which obviously means that regard for public welfare is the highest law. In other words, individual welfare of an owner, shall, in cases of State necessity, yield to that of community or the State and that the property and liberty can be placed in jeopardy or even can be sacrificed to public welfare. As stated above, the provisions for delivery of possession of immovable property contained in Order 21 Rules 35 and 36 etc. are in connection with the delivery of possession of property without a particular reference of its nature by the judgment debtor. But under Section 16 of the Act, the delivery of possession has not to be made by the owner of land or construction, rather the clause is that the possession has to be taken obviously against the willingness of the owner. 13. Reverting to the interpretation of Section 16 of the Act, the particular part of the statute is a written will of the legislature, expressed according to the form necessary to constitute it a law of the State, the function of the Court is to interpret it according to the intent of those, that made it. Usually the literal interpretation is useful unless a statute appears to be ambiguous. There is no ambiguity in the present Section 16. The possession has to be taken after the award had been made under section 11 and the same has been filed in the Collector's office under Section 12. It appears to us that under this section three important expressions namely, * take possession ', ' vest absolutely ' and 'free from all encumbrances' have been used. The word' ' take ordinarily' means to get into one's possession, to seize, to catch, to capture. It is thus obvious that on behalf of the State the Collector has to take or seize, possession. The other significant word is ' possession ' which has engaged the attention of several authors of Jurisprudence laying down different theories. Savigney is one of the original propounder in respect of theory of possession and he was of the view that possession has two ingredients. First is ' corpus possessionis ' and second is ' animus domini '. The former means effective control and the latter intention to hold as a owner. So far as the State is concerned, its intention to hold property commences from the notification under section 4 of the Act. This is reinforced by the doctrine of eminent domain. But so far as the present Section is concerned, the corpus possessionis starts when actually the Collector has taken physical possession. The wisdom of legislature has to be gathered from the words used to the effect that the Collector may take possession and not that the Collector may be delivered possession by the owner. It is also important to mention that there are no specific rules framed nor there is any other specific provision enacted as to how the possession has to be taken. If for delivering possession different provisions have been enacted in the Code of Civil Procedure as stated above, what was the reason in not enacting a definite and positive procedure for taking possession. 14. The theory as stated above, was that of Savigney, propounded in his work 'Das Recht Des Besitzes' and the same was almost demolished by Shring. He made a sociological approach to concept of possession. R. W. H. Dias, in his popular work "Jurisprudence" IVth Edn. Chapter XII pages 371-72 has, however, severely criticised the Salmond's theory of corpus and animus and has stated that the theory is administratively wrong and that the trouble is due to assumption that corpus and animus are only conditions for acquiring possession. According to Dias, Salmond's theory that possession is corpus and animus was, in fact, destroyed. In Xlth Edition of Salmond's Jurisprudence even the original text was changed by Prof. G. L. William to the effect that possession once acquired may continue even though animus and corpus or even both disappear. Under section 16 of the Act the State has to take possession and the intention has been made clear by issuance of section 4 notification. As the award has been made, it has been filed and it became conclusive, the next immediate step was to take possession. But the possession has to be taken according to nature of the land and construction. For our purpose it is better to make a reference to an observation of Farle, C. J. to the following effect : "Possession is one of the most vague of all vague terms and shifts its meaning according to subject matter to which it is applied............varying very much in its sense as it is introduced either into civil or into criminal proceedings." (See R. v. Smith, (1855) 6 Box CC 554 at page 556. In Towers & Co. Ltd. v. Gray, (1961) 2 QB 351 at page 361, it was observed by Lord Parker as follows : "For my Part I approach this case on the basis that the meaning of possession depends on the context in which it is used." (See Hambletion v. Callinan, (1968) 2 QB 427. 15. In the instant case also the taking of possession by the Collector has to be with reference to a particular mind and construction and to the extent it is permissible. As in the instant case there was some construction in the possession of the tenant and other portion in possession of sub-tenants or licensees, hence the actual possession by ejecting all the tenants, sub-tenants or the licensees was not possible and the possession over the construction has to be somewhat similar to symbolic possession. 16. In Balwant Narain Bhagde v. M. D. Bhagwati, AIR 1975 SC 1767, relied upon by the learned counsel for the petitioner and also on behalf of the State, it was observed by Hon'ble Bhagwati, J. as he then was, that even if the Tahsildar goes on the spot and inspects the land for the purpose of determining what was the waste and arrable, would be sufficient to constitute taking of possession and the presence of the owner or the tenant on the spot would not be necessary for any notice to the owner or the tenant would be required in law. In some cases, however, such notice can be given, if possible. In para 2 it was made clear that even though immediately after taking possession the owner might resume his possession by force or otherwise nevertheless once the Tahsildar, Collector or the nominee of the Collector has visited the spot and taken possession the land would vest in the Government and thereafter even if the Government wanted to withdraw from the acquisition, the same could not be done. The actual observation is quoted below : " Legal position is clear that even if the appellant (owner of the land) entered upon the land and resumes possession of it from the next moment after the land was actually taken possession of, and became vested in the Government, such act on the part of the appellant (the owner), did not have the effect of obliterating the consequences of vesting. There can, therefore, be no doubt that actual possession of 19 acres 16 gunthas of waste and arrable land was taken by the Tahsildar on 3rd April, 1959, and it became vested in the Government. Neither the Government nor the Commissioner could thereafter withdraw from the acquisition of any portion of this land under section 48 (1) of the Act." 17. Under these circumstances, as a part of the property was in possession of a tenant and some portion was in possession of sub-tenant or licensees, as the Tahsildar or the nominee of the Collector went on the spot and proclaimed to have obtained possession, may be a symbolic one, so far as the tenants, sub-tenants or the licensees are concerned, that would constitute a sufficient act of taking possession on the spot within the meaning of section 16 of the Act. The next question, emanating from the first one, is as to whether such possession would be sufficient to vest the property or the land absolutely in the Government free from all encumbrances. Learned counsel for the petitioner was very much emphatic that in case just a symbolic possession was taken over the construction, that would not make the land or construction to vest in the Government absolutely free from all encumbrances unless the tenant and licensees have been ejected and thereafter possession has been taken. But we are expressing our inability to agree with this submission. 18. The word 'vest' in this case is a problem of ascertaining the intention of legislature and interpreting the provisions. In fact, the interpretation is a problem of meaning of words and their effectiveness to communicate a particular thought or idea. Primarily the language employed is determining factor and the words used by the legislature must bear a particular meaning which is to be ascertained. Usually the words should take colour from the context in which they appear. For our limited purpose the meaning of words used by the legislature, i. e. 'vest absolutely' and 'free from all encumbrances' have to be ascertained. It is better to refer to some observations explaining the import of word 'vesting'. In Richardson v. Robertson, (1962) 6 L. T. 75 at page 78, it was observed as follows :- "The word 'vest', is a word, at least of ambiguous import. Prima facie, 'vesting' in possession is the more natural meaning......But by long usage 'vesting' ordinarily means having obtained an absolute and indefeasible right as contradistinguished from the not having so obtained." In Coverdale v. Cherlton, (1878) 4 QBD 104, the Court of Appeal observed at page 116 :- "What is then the meaning of word 'vest'in this Section? The legislature might have used the expression, "transferred" or "conveyed", but they have used the word "vest". The meaning I should like to put upon it is the street vests in the local Board Qua the street; not that any soil or any right to the soil or surface vests, but that it vests quo-street". ' ,.. 19. The connotation of word 'vest' is to settle or to put in fixed and indefeasible right of possession. The word 'vest' appears to be work of variable import with slightly changed meaning to be assigned in other contexts. Inasmuch as section 56 of the Provincial Insolvency Act empowers the Court to pass an order for adjudication or appointment of the Receiver for the property of, the insolvent and the- provision is that such property shall vest in such Receiver. Similarly under Order 40 (Forty) Rule 1 (one) of the Code of Civil Procedure, if appointment of the Receiver is made, property vests in him. But the use of word 'vest' in these provisions is slightly different than the use of word 'vest' under section 16 of the Act. We have placed textual and contextual interpretation on section 16 of the Act. The legislature with a view to obviate any misgiving about its intention designedly employed the expression "which shall thereupon vest absolutely free from all encumberances". The legislature has made its intendment manifest by employing the expression 'vest' absolutely free from all the encumbrances. It obviously means that even though in some other context i. e. Section 56 of the Provincial Insolvency Act, the property may not vest completely in the Receiver, but under section 16 of the Act after possession is taken the property shall vest completely without any restriction or limitation and also free from all obstructions, hinderances. The word "absolutely," obviously means completely, positively, unconditionally. The word "encumbrance," means hindrance and free from all encumbrance connotes that vesting shall not be for any limited purpose or duration nor it shall be for any limited object. The clause, "vest absolutely free from all encumbrance," is so comprehensive that it covers that even though there are tenants or sub-tenants or licensees nevertheless it shall not create any hindrance or obstruction in vesting the property completely. 20. The provisions of Sections 16, 17 (I) of the Act make it crystal clear that once the possession is taken, the land alongwith construction would vest in the Collector or the State (Nagar Mahapalika or the High Court in the present case). Such possession may be technically called symbolical, but substantially it is complete possession so far as the owner, tenant or the licensees are concerned. The term ' taking possession ' has to be construed keeping in view the fact that the Act is silent about the mode of taking possession. Unless of course, the possession is taken by written agreement of the parties concerned, the Collector or his nominee goes on the spot and does some act including by making declaration by beat of drum or otherwise or by hanging written declaration on the spot that the authority has taken possession, and thereby the possession would be taken. The presence of the owner, the tenant or licensee is not at all necessary while possession is being taken. The Act does not coniemplate any notice. Once the possession has been taken on 25-3-75, the owner or the occupant of the land is dispossessed or in any view of the matter he would be deemed to have been totally dispossessed may be tenant, sub-tenant or the licensee and thereafter immediately the land would vest in the Government or the Collector or the Nagar Mahapalika or the High Court and all the rights, title and interest or any other encumbrance would come to an end. 21. In Uma Shanker Dixit v. State of U. P., AIR 1978 Alld. 194 in somewhat similar facts, the following observations were made : ".........Sec. 16 thus requires the Collector to eject everyone who may be in occupation of the land. The contention of the learned counsel is that the petitioner being a tenant, cannot be ejected. We find no merit in the contention because if the landlord in possession can be ejected under Sec. 16, we see no reason why a tenant who derives title from the landlord, cannot be ejected. Sec. 47 of the Act gives ample jurisdiction to the Collector to enforce the surrender of the land to himself. " Under paragraph 6 of the case, it was further held as under :- ".........Once the proceedings for acquisition under the Land Acquisition Act have been completed the rights of the landlord get extinct, and once they are extinct, by reason of Sec. Ill of the T. P. Act the rights of the tenant also come to an end. No relationship of landlord and tenant exists between the petitioner and the State Government. " In State of Bihar v. Dr. G. H. Grant, AIR 1960 Pat. 382 a Full Bench of the Patna High Court held as follows : " Section 16 of the Act makes it perfectly clear that the land acquired under the provisions of the Act would vest absolutely in the Government on taking possession of the same. " 22. In para 13 at page 385, after considering the provisions of section 17 of the Act, it has been observed by the Full Bench that in cases of emergency as referred to under Section 17, even though the award has not been made in case the possession has been taken by the Government the same would vest in the Government or the authority concerned free from all obstructions or claim to land. 23. Now the next question is as to whether the continuance of the petitioner as an heir of the last tenant, would become unauthorised and his occupation would become unauthorised occupation within the meaning of Section 2 (g) of the U. P. Act. This definition of " unauthorised occupant " under Section 2 (g) is very comprehensive. Whenever any person is in occupation of any public premises without any authority of law or after expiration of authority under which he was holding or after termination of the same, he would be deemed to be in an unauthorised occupation. We are accordingly of the considered opinion that after the land and construction vested in the Collector or the relevant authority under section 16 of the Act, the possession of the petitioner as tenant or that of sub-tenant or licensee would be deemed to be unauthorised. The remaining part of this question is whether the construction or building in question can be said to be, " public premises " as defined under section 2 (e). The definition clause is very comprehensive and it enacts that any premises belonging to any local authority or any premises acquired under the Land Acquisition Act, would be a " public premises. " We have no manner of doubt that the present construction either in the possession of tenant, sub-tenant or licensees, is covered within the definition of " public premises ", and possession of the petitioner or any other person as tenant or sub-tenant will be " unauthorised, " and proceedings under section 4 of the Act of 1972 were valid, legal and maintainable against the petitioner or other occupants. 24. Reverting to the last question as to whether the plea taken by the petitioner that in view of their relevant notification whether, the Additional City Magistrate has got jurisdiction as Prescribed Authority to entertain the application under section 4 of the U. P. Act or not, and whether this plea could have been decided as preliminary issue alongwith all other pleas involved. As the plea was not decided by the Prescribed Authority as a preliminary issue, the petitioner may get it decided alongwith other pleas. Once the possession has been taken under Section 16, the rights, title or interest of the tenant or sub-tenant or the licensees came to an end and the land alongwith construction vested in the State, or the Nagar Mahapalika, or the High Court, free from all encumbrances. The possession of the petitioner became unauthorised as the construction was covered by the definition of ' public premises '. 25. Applying posteriori reasonings, we are of the opinion that the present petition is devoid of merit and the same is hereby dismissed. We, however, refrain from making any order as to costs. Petition dismissed.;