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2002 DIGILAW 79 (PAT)

State Of Bihar v. Shashi Mohan Thakur

2002-01-17

NAGENDRA RAI, R.S.GARG

body2002
Judgment Nagendra Rai and R.S.Garg JJ. 1. The Letters Patent Appeal and the writ petition are connected matters and as such they have been heard together and are being disposed of the this common order. 2. The appellants of the appeal and petitioners of C.W.J.C. No. 13733/2001 are to be referred to as the appellants and respondent No. 1 in the appeal as well as in the writ petition is to be referred to as writ petitioner-respondent hereinafter for the sake of convenience. 3. The appeal is directed against the order dated 24-7-2001 passed by the learned Single Judge in C.W.J.C. No.7293/2001, whereby the writ application filed by the writ petitioner-respondent has been allowed and a direction has been issued to appellant No. 2, the Commissioner-cum-Secretary, Health, Medical Education, Family Welfare, Bihar, Patna, to return the lands in question to the Secretary, Revenue Land Reforms Department, Bihar, Patna, within the time specified in the order the Secretary, Revenue Land Reforms Department, was directed to ask the writ petitioner-respondent to return the compensation amount, which was received by his father and on such return the possession of the land in question should be handed over to him. While disposing of the matter, the learned Single Judge has also commented upon the conduct of appellant No. 2. 4. The writ application has been filed by the State of Bihar and its officers challenging the order dated 6-7-2000 passed by the Collector, Bhagalpur, by which he has directed the Health Department to return the land to the Revenue Department, who, in its turn, will proceed according to the policy decision of the State Government dated 12-1-1979, a copy whereof has been appended as Annexure-2 to the appeal. 5. The facts giving rise to the present litigation are like this. The State Government took steps to acquire land under the provisions of the Land Acquisition Act (hereinafter referred to as the Act) for construction of a Medical College at Bhagalpur in the year 1963-64. Land measuring 16.59 acres situated in village Khanjarpur, P.S. Barari, District Bhagalpur, belonging to the writ petitioner-respondent was also the subject-matter of acquisition and the same was acquired, for which compensation was paid and received by the father of the writ petitioner-respondent and claim for higher compensation, is still sub-judice. 6. Admittedly, possession of the land was also taken over the by the State Government. 6. Admittedly, possession of the land was also taken over the by the State Government. The building for the College has been constructed. It is also an admitted position that so far as this land is concerned up till now no construction has been made by the Medical College over the same. But in the counter-affidavit filed on behalf of the State before the learned Single Judge, it was specifically stated that the Government is in process of utilising the aforesaid land also for expansion of the Medical College. The constructions of the Medical College building and other constructions concerning the same have been made over other lands. 7. The writ petitioner-respondent on 26-11-1993 filed a petition before the Collector, Bhagalpur, which was registered as Misc. Case No. 58/93-94, wherein he made a prayer that his land, which was acquired for the purpose of construction of the building of the Medical College, has not been utilised and as such the possession of the said land may be given to him on refund of the compensation amount, which was paid to his father. The Collector called for a report from the various authorities but did not come to a final conclusion. Thereafter, the writ petitioner-respondent filed a writ application being C.W. J.C. No. 3488 of 1999 in this Court and the same was disposed of on 1-3-2000, a copy of which was annexed as Annexure-5 therefore. The learned Single Judge, after hearing the parties, directed the Collector to consider the matter and taken a final decision by a speaking order in the light of the policy decision of the State Government. Thereafter, the Collector considered the matter and by order dated 6-7-2000 directed the Health Department to return the land to the Revenue Department, who, in its turn, was directed to proceed with the matter in terms of the policy decision dated 12-1-1979. However, it appears that when no action was taken by the Health Department in pursuance of the said order of the Collector, the writ petitioner-respondent filed a writ application being C.W. J.C. No. 7293 of 2001, which has been disposed of by the learned Single Judge by order dated 24-7-2001, as stated above. However, it appears that when no action was taken by the Health Department in pursuance of the said order of the Collector, the writ petitioner-respondent filed a writ application being C.W. J.C. No. 7293 of 2001, which has been disposed of by the learned Single Judge by order dated 24-7-2001, as stated above. While disposing of the said writ application, the learned Single Judge observed in the order that the order dated 6-7-2000 of the Collector has not been challenged by the State and as such the State cannot be allowed now to say that the said order is bad in law and, thereafter, the State has filed a writ application being C.W.J.C. No. 13733 of 2001 challenging the aforesaid order of the Collector. 8. Before adverting to the submissions, which have been advanced at the Bar, we would like to state briefly the provisions of the Act and the power vested in the State Government with regard to the matter of release or withdrawal of the land already acquired under the provisions of the Act. There are two procedures for acquisition of the landone is the ordinary procedure and the other is emergency procedure. Under ordinary procedure, after notification is issued by the State Government indicating its intention to acquire the land for public purposes, a notice is issued, objection is invited from the claimants and after disposal of the said objections, other steps are taken, Award is prepared and possession is taken u/s. 16 of the Act. Under the emergency procedure as provided u/s. 17 of the Act, holding of enquiry is dispensed with and possession is taken even before preparation of the Award. 9. Both Secs. 16 and 17 of the Act clearly specify that once possession is taken the land vests in the State free from all encumbrances. sec. 48 of the Act vests power in the State Government to release the land from acquisition in certain circumstances. It provides that except in the case covered by Section 36, which deals with temporary occupation, the Government shall be at liberty to withdraw from acquisition of any land of which possession has not been taken. According to the said provisions, the power to withdraw the land from acquisition vests in the State Government only when possession has not been taken. According to the said provisions, the power to withdraw the land from acquisition vests in the State Government only when possession has not been taken. But, once the possession has been taken, the State Government has no power to withdraw any land from acquisition. Even in cases were possession has not been taken and the State Government is empowered to withdraw the land from acquisition, the same can be done only by the State Government and not by any other authority. Even the State Government cannot exercise the said power except by issuing a notification in the official Gazette. 10. In the case of Lt. Governor of Himchal Pradesh V/s. Avinash Sharma A.I.R. 1970 S.C. 1576, the possession of the land of respondent of the case was taken under the emergency procedure u/s. 17(1) of the Act. Later on, the Government issued a notification cancelling the earlier notification for acquisition of land for a public purpose. The land owner-respondent challenged the same before the Judicial Commissioner, who upheld the claim of the land-owner. Dealing with the said matter, the Apex Court in paragraph No. 7 held as follows: After possession has been taken pursuant to a notification u/s. 17(1) the land is vested in the Government, and the notification cannot be cancelled u/s. 21 of the General Clauses Act, nor can the notification be withdrawn in exercise of the powers of the Land Acquisition Act under Section 48. When possession of the land is taken u/s. 17(1), the land vests in the Government. There is no provision by which land statutorily vested in the Government reverts to the original power by mere cancellation of the notification. 11. The same view has been reiterated by the Apex Court in the case of Municipal Committee V/s. Land Acquisition Collector -, as well as in the case of Mohan Singh V/s. International Airport Authority of India - . 12. As stated above, even in cases where sec. 48 is attracted, the said order can be passed only by the State Government by issuance of a notification any by on other procedure. In this connection, reference may be had to the decisions of the Apex Court in State of Maharashtra V/s. Uma Shankar Rajabhau - , MurariM. Union of India - and Larsen and Toubro Limited V/s. State of Gujarat -. 13. In this connection, reference may be had to the decisions of the Apex Court in State of Maharashtra V/s. Uma Shankar Rajabhau - , MurariM. Union of India - and Larsen and Toubro Limited V/s. State of Gujarat -. 13. In the light of the said law, the submissions advanced on behalf of the learned Counsel for the parties at the Bar have to be considered. 14. Learned Counsel for the appellants submitted that in this case admittedly the possession has been taken and as such no order can be passed to withdraw the land from the acquisition. The Collector has at all no power to pass any such order and as such the order passed by the Collector is wholly without jurisdiction. He further submitted that it was clearly stated before the learned Single Judge in the counter-affidavit that the land is still required and the Government is in process of utilising the land for the purposes of Medical College. 15. Learned Counsel for the otherside, on the other hand, submitted that the impugned order passed by the Collector is not u/s. 48 of the Act as he has not released the land from acquisition, rather he has issued direction in terms of the policy decision of the State Government dated 12-1-1979 and directed the Health Department to return the land to the Revenue Department according to the said policy decision. He further submitted that even in a case where possession has been taken under the provisions of the Act, sec. 48 does not stand in the way of the State Government to relinquish its claim with regard to the land acquired under the Act. 16. As stated above, once the land is vested under the State Government by virtue of the possession having been taken under the provisions of the Act, the State Government has no power release the land. Now it is an admitted fact that the Government came out with a policy decision with regard to release of the land acquired under the Act which is not under use for a long period. This policy decision, as stated above, is contained in letter dated 12-1-1979. Now it is an admitted fact that the Government came out with a policy decision with regard to release of the land acquired under the Act which is not under use for a long period. This policy decision, as stated above, is contained in letter dated 12-1-1979. The aforesaid policy decision provides, inter alia, that if a land has been acquired and is not being used by the department concerned, for which acquisition has been made, and if that department is of the opinion that there is no use of the land then it will return the land to the Revenue Department, who is its turn will enquiry from other departments and Public Undertakings about the use of the land and in case of their refusal, steps should be taken to return the land to the ex-land owner on payment of compensation at the rate, which was paid to him at the time of acquisition. 17. The question for consideration is as to whether the Government can issue a policy decision contrary to the statutory provisions as contained in sec. 48 of the Act or not? In a land acquisition proceeding, where the possession has not been taken, the power vests in the State Government to withdraw the land from acquisition and the notification to that extent can be held to be valid. But, in a case where possession has been taken, the land cannot be returned to the land owner in case of non-use of the same for certain period in terms of the said policy decision. In such a case, the State has no power to lay down the said policy decision contrary to the provisions contained in sec. 48 of the Act. To that extent, the policy decision cannot be given effect to. In other words, policy decision of the State Government that even in cases where possession has been taken by the Government, the land can be returned to the erstwhile owner is invalid being in breach of the statutory provisions contained in sec. 48 of the Act. 18. Even assuming that the policy decision has application then also the Collector under the policy decision has not been authorised to decide the question. It is for the concerned department to come to the conclusion whether the land is required for it or not and, thereafter, to proceed as provided in terms of the policy decision. 19. 18. Even assuming that the policy decision has application then also the Collector under the policy decision has not been authorised to decide the question. It is for the concerned department to come to the conclusion whether the land is required for it or not and, thereafter, to proceed as provided in terms of the policy decision. 19. Thus, judging from any angle so far as the Collector is concerned, he has no power to pass an order with regard to the release of the land nor has he power to issue any direction to one department or the other to give possession of the land, earlier acquired, to the ex-land owner on return of the compensation money. The order of the Collector dated 6-7-2000 is wholly without jurisdiction and as such no direction could have been issued by the learned Single Judge to respondent-appellant No. 2 to carry out the aforesaid direction for the simple reason that the writ cannot be issued to do anything contrary to law. 20. The submission advanced on behalf of the writ petitioner-respondent that the State Government can relinquish its right with regard to the land acquired and in that case sec. 48 of the Act is not applicable has to be rejected for the simple reason that where the field is occupied by law and elaborate provisions mentioned therein, there is nothing like inherent power in the State Government to act contrary to the statutory provisions. 21. Thus, according to us, the direction issued by the learned Single Judge is not according to law and the same is set aside. The order dated 6-7-2000 passed by the Collector is also quashed. 22. We have noticed that while disposing of the matter the learned Single Judge has passed certain remarks against Mr. S.P. Seth, respondent-appellant No. 2, who was Commissioner-cum-Secretary, Health Medical Education & Family Welfare, Bihar, Patna, at that point of time. We would liek to observe that the officers of the Collectorate and some officers of the Secretariats were acting against the rule of law and were siding with the writ petitioner-respondent, who has no claim at all, Mr. Seth and other officers of the Health Department did not succumb to the pressure and performed their duties honestly and sincerely even at the risk of their service career. Seth and other officers of the Health Department did not succumb to the pressure and performed their duties honestly and sincerely even at the risk of their service career. Even in this High Court, when the case was not being properly represented before the learned Single Judge, appellant No. 2 argued the case himself. The remarks made against him by the learned Single Judge in the facts of this case were not justified. We record our appreciation for commendable service done by Mr. Seth in protecting the Government interest and vindicating the rule of law. 23. In the result, the appeal and writ application are allowed with the aforesaid observations.