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Madhya Pradesh High Court · body

2002 DIGILAW 708 (MP)

Manoharlal Babbar v. State of M. P.

2002-07-25

A.K.MISHRA

body2002
ORDER : 1. In this writ petition, petitioner is praying for issuance of a writ of mandamus directing the respondents to deliver actual and physical possession of the land acquired to the petitioner comprised in Survey No. 214/1/2 and Survey No. 215/2, total area 5.31 acres and also to make the payment of compensation for illegally retaining possession w.e.f. 22-6-1979 till the possession is delivered. 2. The petition has been filed on the averments that for the purpose of housing, the land was acquired by the Land Acquisition Officer as per scheme prepared by the Madhya Pradesh Housing Board. A notification under section 6 was issued on 22-6-1979. The possession of the land was taken over on 4-10-1979 by the Madhya Pradesh Housing Board. Petitioner moved an application (D) before the Land Acquisition Officer, Madhya Pradesh Housing Board, Bhopal, for fixing compensation at the rate Rs. 5/- per sq. ft. Thereafter, the petitioner claimed compensation but nothing materialised. The Land Acquisition Officer wrote to the Competent Authority under Urban Ceiling Act for release of the land from the provisions of Urban Ceiling Act. It was stated that though the possession has been taken, compensation has not been fixed or awarded. The Land Acquisition Officer as per order dated 11-3-1987 held that as the award for payment of compensation could not be passed within two years, proceedings for land acquisition lapsed. The order (F) passed by the Land Acquisition Officer has been placed on record. Petitioner by way of amendment has incorporated that fresh notification under section 4 has been issued on 19th September, 1989, and thereafter on 15th December, 1994, declaration under section 6 has been issued. 3. The respondent No. 2, M.P. Housing Board, has filed a return. The stand has been taken that in all 85 acres of land was acquired for construction of houses out of which only 5.33 acres belongs to the petitioner and rest to others who have already accepted it at the rate Rs. 10,000/- per acre in the year 1987 itself. Petitioner also agreed to sale the land at the rate Rs. 20,000/- as per letter (R-1). Proceedings for land acquisition were initiated in the year 1979 as per section 11(a) and as award could not be passed, the proceedings were declared to be barred. Fresh proceedings have already been initiated by declaration (R-2) under section 6. Petitioner also agreed to sale the land at the rate Rs. 20,000/- as per letter (R-1). Proceedings for land acquisition were initiated in the year 1979 as per section 11(a) and as award could not be passed, the proceedings were declared to be barred. Fresh proceedings have already been initiated by declaration (R-2) under section 6. The land was developed and houses have been constructed and allotted and possession delivered. Third party interest as such had intervened and the question is now only payment of compensation to the petitioner. The proceedings are also pending. An amount of Rs. 15 lacs has already been deposited on 23-12-1986 and petitioner can participate under the said proceedings and persue the remedies provided under the Act. Petitioner cannot get back the possession as claimed for by the petitioner for the reason that the land has already been transferred and third party interest have intervened. 4. Shri P.R. Bhave, learned Senior Counsel, appearing for the petitioner submitted that the petitioner has not been paid compensation of the land which has been acquired. Petitioner is entitled for compensation to be determined from the date of issue of notification under section 4 i.e. 19th September, 1989. He has placed reliance on the decision of Apex Court in Hindustan Oil Mills Ltd. and Another vs. Special Deputy Collector (Land Acquisition), (1990) 1 SCC 59 . Learned Counsel appearing for the petitioner also submits that once third party interest is intervened, acquisition cannot be allowed to be dropped. Houses have been constructed thus the only remedy is to obtain compensation. He submits that compensation has to be determined as per notification issued in the year 1979. Similar is the submission of Shri Shashank Shekhar, learned Counsel for respondents 1 and 3. 5. In Satendra Prasad Jain and Others vs. State of U.P. and Others, (1993) 4 SCC 369 , the Apex Court has held that Government could not withdraw from acquisition under section 48 once it had taken possession of the land under section 17. When section 17(1), is applied by reason of urgency, Government 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 Government. When section 17(1), is applied by reason of urgency, Government 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 Government. In ordinary case, however, when Government fails to make an award within two years of the declaration under section 6, the land has still not vested in the Government and its title remains with the owner, the acquisition proceedings are still pending and, by virtue of the provisions of section 11-A lapse. Clearly, section 11-A can have no application to cases of acquisitions under section 17 because the lands have already vested in the Government and there is no provision in the Act by which land statutorily vested in the Government can revert to the owner. In the instant case, section 11-A can have no application and in my opinion section 17 was invoked, possession of land was taken third party interest created owing to non-passing of award within two years, as per section 11-A proceeding did not lapse. 6. The decision of Apex Court in Hindustan Oil Mills Ltd. and Another vs. Special Deputy Collector (Land Acquisition) (supra) is of significance to decide the matter with respect to relevant date for determination of compensation in question. It has been held by the Apex Court that if successive notification under section 4 has been issued, effective date for determination of compensation should be the date on which such last notification was issued. In the instant case the respondents by their own conduct have treated first notification under section 4 as lapsed and have issued fresh notification under section 4 on 19th September, 1989 and have started proceedings from that date though proceedings initiated in 1979 did not lapse but fact remains that no award was passed within two years and fresh notification was issued on 19-9-1989. It appears that no award was passed when the writ petition was filed before this Court and fresh notification having been issued in September, 1989. In my opinion, it is just and proper to direct the compensation to be determined from the date of notification under section 4 issued on 19th September, 1989. 7. The writ petition is disposed of in the light of direction made above. In my opinion, it is just and proper to direct the compensation to be determined from the date of notification under section 4 issued on 19th September, 1989. 7. The writ petition is disposed of in the light of direction made above. If compensation has not been determined, let it be done at an early date as far as possible within six months. Costs on parties.