ORDER
Vikramajit Sen, J.
1. The present application for the passing of a temporary injunction under Order XXXIX Rules 1 and 2 C.P.C. has been filed in a suit for permanent injunction. The prayers contained in the application is that the Defendants, its agents, employees, servants and/or anybody else acting on their behalf be injuncted from interfering in any manner in the peaceful use, enjoyment and possession of the Plaintiff in the land comprising Khasra No. 576/1 Min, Village Kilokri, Tehsil Mehrauli, New Delhi which is the subject matter of the suit.
2. In the Plaint it is stated that the Plaintiff is a Public Limited Company which has been leased 6 Bighas 14 Biswas in Khasra No. 576/1 Min, of the land in village Kilokri across Yamuna River linking the Ring Road to the Dadri, Mehrauli Road, Express Highway in Sector 15-A, NOIDA for the construction of the Delhi NOIDA Toll Bridge. It is averred that the project is in public interest. It is alleged that the Defendant has no right, title or interest in the suit property and is trying to encroach and disturb the peaceful possession of the Plaintiff in the suit land. Acquisition of the suit land was initially started in 1989. Section 4 Notification was issued on 23.6.1989 and Section 6 Notification on 22.6.1990. Possession of 3 Bighas of land was taken over by the Department of N.C.T. of Delhi on 27.12.1990. However, this is not the subject matter of the present suit. The remaining land measuring 3 Bighas 14 Biswas in Khasra No. 571/1 Min. was denotified on 12.1.1990. On 2.4.1998 a fresh Notification under Section 4 of the Land Acquisition Act was issued for acquiring this land. On 20.4.1998 Section 6 Notification was issued invoking the urgency clause (Section 17), on 8.5.1998 possession of the suit land was taken over by the Government of N.C.T. of Delhi. The Delhi Government and NOIDA executed a lease dated 23.10.1998 in respect of this land. It is alleged that the Defendant claim to be the owner of 2 Bigha 7 Biswas of this Khasra No. 576/1 Min. The Plaint further stated that in February, 1999 there was an unsuccessful attempt to construct a temple at the project site by the Defendant and her associates and that thereafter, on September 9, 1999 the District Commissioner, South District of Government of N.C.T. of Delhi carried out the demarcation and removal of the encroachment, but apprehension of mischief still persists.
3. In her Written Statement it has been averred, inter alia, that possession of the land in suit has never been taken over by any Agency in pursuance of the Notification under Sections 4, 6, and 17 of the Land Acquisition Act. C.W.P. No. 3709/1990 was dismissed as infructuous on 21.1.2000. The fresh Notification, whereby the acquisition of 3 Bighas 14 in Khasra No. 376/1 Min, with in which the Defendant’s land is situate, was assailed in C.W.P. No. 367/2000. However, no interim orders in favour of the Defendant herein had been shown to the Court in the course of arguments. It is stated that on 9.9.1999 although substantial damage to the temple was caused by the officials of the U.O.I., possession of the land in question could not be taken. Reference is made to a letter dated 19.5.1999 allegedly addressed by the Vice President of the Plaintiff and Jagatguru Shankaracharya in which the Defendant’s possession is stated to have been admitted. Reference is also made to a public statement allegedly made by the Managing Director of the Plaintiff admitting the possession of the Defendant and the existence of the temple on the suit land. The statement made in the Plaint has been traversed.
4. At the time of arguments a copy of the Lease Deed dated 23.10.1998 between NOIDA and the Plaintiff was filed. To the other way A photo copy of minutes of meeting held on 7.2.2000 between the representatives of the parties. It is in that background of this case that the Court has to decide whether to grant or refuse injunction. The first condition to be fulfillled, if the injunction is to be passed, is that a prima facie case exists in favour of the Plaintiff. It is not in dispute that Notifications under Sections 4, 6 and 17 of the Land Acquisition Act have been published, and that these have been assailed in Writ Proceedings but no stay order has been granted. The Plaintiff’s case is that possession of the land in question was taken over by the N.C.T. of Delhi. The Khasra Girdavri of the land is available on the record. This document specifically mentions vide ‘K. No. 396 dated 28.5.1998 land in Khasra No. 576 Min. (34) was given to Land and Building and along with that this possession was handed over by Land and Building to C.E.O. NOIDA as per terms and conditions on date as stated above.’ Whereas on page 1 the existence of the temple is recorded, on page 2 the entire land is shown as vacant. The Defendant has also relied on press reports and site plans acknowledging the existence of the temple. The centre of discord in issue has however remained whether possession of the suit land has been legally taken over by the Authority and thereafter handed over to the Plaintiff. Learned Counsel for the Plaintiff firstly relied on the minutes of the meeting dated February 9, 2000 which in terms of records, by consent of the representatives of the parties, that ‘a structure of religious significance had been located on the proposed alignment of the Delhi NOIDA Toll Bridge in Khasra NO. 576’. It further recorded that a sum of Rs. 25,00,000/would be disbursed to the Defendant/erstwhile owners. While the authenticity of these minutes was not disputed by Learned Counsel for the Defendant, it was his argument that at the meeting reciprocal premises had been agreed upon one, of which was the resettlement and installation of the deity on an alternative site. As this condition has not been fulfillled the Defendant was not called upon the cooperate with the Commencement of the construction activities on the land.
5. Learned Counsel for the Plaintiff has relied on the terms of the Delhi Land Subease dated 23.10.1998 as well as the Delhi Land Lease Deed, of even date, between the President and NOIDA. Clause 8 of the second document is relied on to show that the possession of the suit land was also actually taken over by the Authorities and thereupon handed over to the Plaintiff. Clause 8 reads as under :-
The Delhi Lands are being vested with Vacant possession with the Lessee, under this Deed, free from any Encumbrances, whether legal or physical in nature. All Public utilities that had been existing both under and above the Delhi Lands have been removed. At any time during the term of this Deed if the Lessee or the concessionaire discovers any Encumbrances upon or under the Delhi Lands which materially adversely effect implementation of the Project by the Concessionaire or any rights in relation to the Delhi Lands, it shall notify the Lessor, which shall, within thirty days from the receipt of the notice, either removed or cause to be removed such encumbrances within 30 days from the notice thereof, the Lessee or the Concessionaire may remove or cause to be removed such Encumbrance and the costs and expenses or consequential liabilities incurred in respect thereof shall be reimbursed by the Lessor.
6. In my view the significance of this document have been over emphasised by Learned Counsel for the Plaintiff. This contend can specifically be held as unassailable evidence of the position that actual possession of the property had been taken over by the Authorities. This document can be used against the Defendant only if they were signatory of that.
7. However, it is not in dispute that Notification under Sections 4, 6 and 17 of the Land Acquisition Act, in respect of the suit land have technical effect and that their operation had not been stayed although a Writ Petition challenging the legality is pending in this Court. The short question that arises is whether the method of taking over possession by the Authority is legally efficacious, and binding to such an extent that it would not be open for the Court to consider the remonstration of the Defendant vis-a-vis actual possession having been taken from the Defendant. The Defendant has reiterated that the possession letter dated 8.5.1998 is only a paper transaction and does not have any evident value regarding the actual possession of the property. Learned Counsel for the Defendant has stated that the decisions relied upon by Learned Counsel for the Plaintiff, to which I shall advert shortly, all pertain to the taking over of the possession of the vacant land only, and that Section 114(e) of the Evidence Act would have no application to the facts of the present case. This Section has been relied on by the Plaintiff to buttress the argument that possession letter dated 8.5.1998 must perforce be taken to be correct. I am satisfied taht it is not open to the Defendant to challenge the correctness of factual statement contained in the possession of the suit land.
8. In Chameli Singh & Others Vs. State of U.P. and Another, , with Article 300-A and 21 in perspective, the Apex Court, held that where compulsory acquisition was carried out by the State for public interest in exercise of its power by eminent domain it did not amount to deprivation of the Petitioner’s right. The following observations in Ramniklal N. Bhutta Vs. State of Maharashtra, would have to govern the decision to be taken in the present case. They are therefore, reproduced as under :
Before parting with this case, we think it necessary to make a few observations relevant to land acquisition proceedings. Our country is now launched upon an ambitious programme of allround economic advancements to make our economy competitive in the world market. We are anxious to attract foreign direct investment to the maximum extent. We propose to compete with China economically. We wish to attain the pace of progress achieved by some of the Asian countries, referred to as ‘Asian tigers’, e.g. South Korea, Taiwan and Singapore. It is, however, recognised on all hands that the infrastructure necessary for sustaining such a pace of progress is woefully lacking in our country. The means of transportation, power and communications are in dire need of substantial improvement, expansion and modernisation. These things very often call for acquisition of land and that too without any delay. It is, however, natural that in most of these cases, the persons effected challenge the acquisition proceedings in courts. These challenges are generally in the shape of writ petitions filed in High Courts. Invariably, stay of acquisition is asked for and in some cases, orders by way of stay or injunction are also made. Whatever, may have been the practice in the past, a time has come where the courts should keep the larger public interest in mind while exercising their power of granting stay/injunction. The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. And in the matter of land acquisition for public purposes, the interests of justice and the public interest coalesce. They are very often one and the same. Even in a civil suit, granting of injunction or other similar orders, more particularly of an interlocutory nature, is equally discretionary. The courts have to weigh the public interest vis-a-vis the private interest while exercising the power under Article 226-indeed any of their discretionary powers. It may even be open to the High Court to direct, in case it finds finally that the acquisition was vitiated on account of noncompliance with some legal requirement that the persons interested shall also be entitled to a particular amount of damages to be awarded as a lump sum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong; quashing the acquisition proceedings is not the only mode of redress. To wit, it is ultimately a matter of balancing the competing interests. Beyond this, it is neither possible nor advisable to say. We hope and trust that these considerations will be duly borne in mind by the courts while dealing with challenges to acquisition proceedings.
9. The contention of the Defendant is that only physical possession is mandatory. If this ground has to be countenanced it would unnecessarily entail discounting the taking over of possession of the land on 8.5.1998. It is already noticed that it is not possible for the reasons that Section 114(e) is in obstruction thereof. Even if the Evidence Act is ignored, it is not possible to give any weightage to the Defendant’s submission that the possession of the land remains with her. In the following observations of the Supreme Court in Balmokand Khatri Educational and Industrial Trust, Amritsar Vs. State of Punjab and Others argument cannot be entertained since all the requisite formalities have been taken:
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, Shri Parekh has contended that the appellant still retained their possession. It is now wellsettled 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.
10. Similar views have also been voiced in Tamil Nadu Housing Board Vs. Viswam, . Pronouncements and decisions to the same effect have been taken in Larsen & Tourbo Ltd. Vs. State of Gujarat and Others . Relevant paragraphs of the same are reproduced as under :
The High Court held that actual physical possession of the land, the subjectmatter of the acquisition proceeding, was not handed over to the appellant while it was the contention of the appelant as well as the State Government that possession of the land was handed over to L & T Ltd. on 5.7.1989.. At the time the possession was taken over a panchnama was prepared duly witnessed by two farmers of Village Magdalla and signed by the Circle Officer evidencing handing over of possession and also by M.H. Adhikari, an officer of the L & T Ltd. for taking over possession. The possession receipt of the same date duly signed by the Circle Officer and the officer of the L & T Ltd. was given L & T Ltd. thus took possession of the land in the presence of the panchas. Panchanama recites that both the witnesses ( panchas ) had been intimated in advance by the Mamlatdar, Charyasi and that possession of the land concerned that day taken over in their presence by the Circle Officer and that the land was an open spot and there was no construction or crops grown therein. Possession of the land was taken over along with the trees standing thereon. As noted above, possession was thereafter, delivered to the representative of the L & T Ltd. at that time itself. In the High Court it was contended that no actual physical possession of the land had been taken. The petitioners filed affidavits of the panchas who had signed the panchnama. In these affidavits they stated that they were called to the office of the panchayat and that their signatures were obtained on blank papers and that they had not gone to the site and that neither the landlord was present nor was the actual possession delivered to the acquiring body. Read with these affidavits the High Court noticed from the recitation in the panchnama that it was nowhere mentioned that the panchas had gone to the site from the office of the Panchyat. It was not disputed that in the revenue records it was L & T Ltd. who was shown in possession of the land. Affidavits of the panchas filed in the High Court which contained statements contrary to what was recorded in the panchnama and against the revenue entries are quite meaningless and in our opinion the High Court unnecessarily put undue reliance on the same. The High Court could not convert itself into a revenue court and hold that in spite of the panchanama and the revenue records actual physical possession of the acquired land had not been handed over to the acquiring body. The High Court, in our opinion, has not correctly analysed the two judgments of this Court in Balmokand Khatri Educational and Industrial Trust Vs. State of Punjab and Balwant Narayan Bhagde Vs. M.D. Bhagtwat to come to the conclusion that actual physical possession of the land was not taken over by the State.
In Balwant Narayan Bhagde Vs. M.D. Bhagwat, a threeJudge Bench of this Court was considering the question of taking possession of the acquired land under the Act. Bhagwati, J. (as he then was) delivered judgment for himself and A.C. Gupta, J. He said he agreed with the Conclusion reached by Untwalia, J. (who was the third Judge) as also with the reasoning on which the conclusion was based. He, however, said that a separate judgment was being written as he felt that it was not necessary to consider the question of delivery of ‘symbolical’ and ‘actual’ possession as provided in Rules 35, 36, 95 and 96 of Order XXI of the Code of Civil Procedure as that was not necessary for the disposal of the appeal before the Court. Bhagwati, J. said as under : (SCC pp. 711-12, Para 27).
“There can be no question of taking ‘symbolical possession in the sense understood by judicial decisions under the Code of Civil procedure. Nor would possession merely on paper be enough., What the Act contemplates as a necessary condition of vesting of the land in the Government is the taking of actual possession of the land. How such possession may be taken would depend on the nature of the land. Such possession would have to be taken as the nature of the land admits of. There can be no hard and fast rule lying 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 is 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.”
11. The consideration of all these decisions would lead to only one conclusion, i.e. that possession of the suit land was taken over on 8.5.1998, and by virtue of the Delhi Land Sub-Lease dated 23.8.1998, between the C.E.O. NOIDA and the Plaintiff it is in the latter’s enjoyment since that date. Therefore, a prima facie case has been made out by the Plaintiff.
12. The balance of convience palpably lies with the Plaintiff. The acquisition has been carried out in exercise of the eminent domain of the State. The project is in public interest and with the avowed purpose of creation of arterial roads for easy transportation between Delhi and its Satellites. Section 17 of the Land Acquisition Act has been resorted to so that the project can be completed expeditiously. Obviously, no prima facie case against this exercise could be established by the Defendant before the Writ Court. If projects of the present nature are allowed to be obstructed or imp leaded through judicial proceedings, in the absence of violation of any rights of the Defendant, the purpose of acquisition would be set at knot.
13. Learned Counsel for the Plaintiff has submitted that although the agreement between the parties arrived at in the meeting held on 7.2.2000 contemplated stinger payment of Rs. 25,00,000/-, the Plaintiff would make this payment within 24 hours so that the project may not be further delayed. Having arrived on this agreement the anxiety of the Defendant would revolve around receipt of this sum of money. If this had not been so minutes and agreement ought not to have been entered into. The interests of the Defendant can be fully secured in this regard. I direct the Plaintiff to deposit a sum of Rs. 25,00,000/- with the Registrar of this court within three days. The operation of these orders is conditional on compliance with this direction.
14. In these circumstances, I am of the considered view that the temporary injunction prayed for should be granted. Accordingly, I pass an ad interim injunction order restraining the Defendants, its agents, employees, servants and/or anybody else acting on behalf or along with her from in any manner interfering in the peaceful use, enjoyment and possession of the Plaintiff in land comprising of Khasra No. 576/1 Min, village Kilokri, Tehsil Mehrauli, New Delhi, or in any other manner threatening, intimidating the plaintiff company or any of its officers, employees and or any one else acting on behalf of the Plaintiff Company till the next date of hearing.