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2003 DIGILAW 377 (HP)

HARDAI v. STATE OF H. P.

2003-12-19

LOKESHWAR SINGH PANTA

body2003
JUDGMENT Lokeshwar Singh Panta, J.: - In this writ petition filed under Articles 226/227 of the Constitution of India, petitioners pray, inter alia, the following reliefs: "1. That the respondents may be directed to initiate and finalise the proceedings for acquisition of land belonging to the petitioners as entered against Khasra Nos. 741/661, measuring 4 bighas, situated at Mauza Suni, as per jamabandi for the year 1979-80 and to pay the market value in accordance with law and the provisions of Land Acquisition Act. 2. That the respondents may be directed to pay special equable amount of compensation to the petitioners in addition to the compensation admissible under the provisions of Land Acquisition Act. 3. That the entire record of the case may be summoned from the respondents for the perusal of this Honble Court. 4. That the cost of the petition may be awarded in favour of the petitioners." 2. The petitioners are the legal representatives of deceased Badri Dass Gupta who died on 22.7.1994. It is the case of the petitioners-that deceased Badri Dass Gupta was the owner in possession of land comprising Khata No. 54 min. Khatauni No. 76 min, Khasra No. 741/661 to the extent of 4 bighas situated at Mauza and Tehsil Suni, District Shimla. The respondents un-authorisidely occupied and utilized the land in dispute in the year 1980. Late Bndri Dass Gupta preferred representation dated 4.11.1982 (Annexure P-2) to the Collector, Shimla District-respondent No. 3 herein stating therein that the land in dispute was acquired by the Department of Agriculture and Horticulture without payment of amount of compensation and possession of the land was also taken in the year 1980. The deceased represented that instead of going for litigation, he may be granted land measuring 6 bighas 1 biswa out of the land of the State Government comprising Khasra Nos. 866/826/1 or out of Khasra Nos. 201/255 at Mauza and Tehsil Suni, District Shimla. According to the petitioners. Horticulture Sub Inspector, Progeni-cum-Demonstration Orchard, Suhi submitted his report dated 3.2.1993 (Annexure P-3) admitting the factum of taking possession of the land in dispute of late. Badri Dass Gupta as the same was located by the side of Shimla Tatapani Road and in front of the office of the Horticulture Department. In the report no objection in exchange of the Government land with the land of late Badri Dass Gupta was given. Badri Dass Gupta as the same was located by the side of Shimla Tatapani Road and in front of the office of the Horticulture Department. In the report no objection in exchange of the Government land with the land of late Badri Dass Gupta was given. The application of deceased Badri Dass Gupta was forwarded by Tehsildar to the Sub Divisional Officer (Civil), Shimla on 30.3.1983 who in turn forwarded the application to respondent No. 3 on 14.2.1984 for exchange of the Government land. Respondent No. 3 forwarded the case to the Horticulture and Forest Departments for submitting their reports. The Divisional Forest Officer, Shimla, Forest Division vide letter dated 23.5.1985 (Annexure P-5) informed respondent No. 3 that the land applied for in exchange by deceased Badri Dass Gupta could not be granted to him as six trees of Khair and Shesum were standing thereon. According to the petitioners the Tehsildar Suni submitted his report to the Sub Divisional Officer (Civil), Shimla on 9th August, 1984 stating that the objection of the Forest Department was unnecessary because the area of Khasra Nos. 866/826/1 applied for in exchange was not situated in jungle Mehduda nor there was any tree standing thereon and the area applied for in exchange was away from the road side. The Sub Divisional Officer (Civil), Shimla vide his report dated 6th September, 1984 (Annexure P-4) recommended to respondent No. 3 the grant of exchange of the Government land to the extent of 4 bighas out of Khasra Nos. 866/826/1 to deceased Badri Dass Gupta as the land in dispute was in possession of the Horticulture Department, Respondent No. 3 vide order dated 30.1.1987 (Annexure P-6) observed that the area applied for by way of exchange could not be granted as it had fallen within the Notified Area, Suni as the Nautor Rules under which exchange was permissible were not applicable in Urban area. Respondent No. 3 further observed that Badri Dass Gupta could be granted Government land on lease basis and the matter was referred to Tehsildar, Suni for necessary action. Respondent No. 3 further observed that Badri Dass Gupta could be granted Government land on lease basis and the matter was referred to Tehsildar, Suni for necessary action. Late Badri Dass Gupta submitted representation dated 24.4.1988 (Annexure P-7) to the Secretary Revenue to the State of Himachal Pradesh-respondent No. 1 herein, Secretary Agriculture and Horticulture to the Government of Himachal Pradesh-respondent No. 2, respondent No. 3 and the Tehsildar Suni stating that he may be paid market value of the land in dispute occupied by the Agriculture and Horticulture Department or in the alternative he may be granted the land by way of exchange. The Deputy Secretary (Horticulture) to the Government of Himachal Pradesh wrote a letter dated 7th June, 1988 (Annexure P-8) to the Director of Horticulture requesting the latter to intimate the former whether the Department was concerned with the matter in controversy or not. The petitioners have stated that no action was taken by the respondents and late Badri Dass Gupta was forced to sent urgent reminder dated 23.5.1990 (Annexure P-9). Thereafter three legal notices through Advocate dated 7.8.1992 (Annexure P-10), dated 15.6.1993 (Annexure P-11) and dated 13.5.1991 (Annexure P-12) were served by the original owner of the land on the respondents requesting them either to make payment of suitable amount of compensation to him or to grant equivalent land in exchange of the land in dispute. According to the petitioners the respondents have not redressed their grievances. On the preceding facts, the petitioners prayed for the above said reliefs. 3. In the counter-affidavit filed on behalf of respondents No. 1 and 3, Deputy Commissioner-cum-Collector, Shimla has admitted that the land comprising Khasra Nos. 741/661 measuring 4 bighas situated in Mauza Suni was owned and possessed by late Badri Dass Gupta as per the entries in the revenue recording the year 1979-80, but on the spot the land in dispute was. in use and possession of Horticulture Department of the State Government. It is stated that the District-Horticulture Officer, Shimla had intimated that the land of the petitioners was never acquired by the Horticulture Department as no record of acquisition was available in his office. Thus, the question of grant of Government land in exchange of the land of the petitioners would not arise. Further it is stated that it was for the incumbent upon Department to acquire the land of the petitioners and pay the compensation. Thus, the question of grant of Government land in exchange of the land of the petitioners would not arise. Further it is stated that it was for the incumbent upon Department to acquire the land of the petitioners and pay the compensation. It is asserted that the land applied for in exchange by the petitioners is situated within the Notified Area Committee, Suni and the Nautor Rules under which exchange was permissible were not applicable in Urban area, therefore, the land Applied for in exchange could not be granted to the petitioners. 4. In the counter-affidavit filed on behalf of respondent No. 2, Director of Horticulture asserted that the land of the petitioners had been purchased by the Agriculture Department and the cost stood already paid to the petitioners as per letter dated 7th June, 1961 written by Director of Horticulture to the Joint Secretary (Revenue) to Himachal Pradesh Administration (Annexure R-1) as such the petitioners have no right to maintain the present writ petition. It is stated that the land in dispute was transferred by the Agriculture Department to the Horticulture Department as it was found unsuitable for seed multiplication farm. Proceedings under the Land Acquisition Act were initiated vide notification dated 17th February, 1961 (Annexure P-3), but as the land in dispute was subsequently purchased by way of private negotiations by the Horticulture Department, the amount was paid to the original owner of the land through Naib Tehsildar, Suni, the land acquisition proceedings thereafter were not processed further. The Director of Horticulture has admitted that the land in dispute was in the possession of the Horticulture Department. 5. The petitioners have filed two sets of rejoinder to the reply filed by the respondents reiterating and reasserting their claim made in the writ petition. They have denied the purchase of the land by the respondents from the original owner. They have stated that the Horticulture Department has got the land other than land of the predecessor-in-interest of the petitioners and the land for which the payment was allegedly made would pertain to some other land belonging to other owners as the respondents have not placed on record any receipt of the payment of the price of the land to the predecessor-in-interest of the petitioners. They have stated that during the life time of Badri Dass Gupta, the respondents have never raised the plea that the land in dispute had been purchased by the Director of Agriculture. 6. On 30.6.2003 this Court directed the Secretary (Revenue), Secretary (Agriculture) and Secretary (Horticulture) who are the parties in this case to file separate affidavits to clarify the position in regard to the fact whether the State Government is still interested to acquire the land of the petitioners for public purpose, if hot, whether the State Government is willing to pay the compensation to the petitioners for the period when the land in dispute allegedly was occupied by the Horticulture Department. 7. Pursuant to the above said order, Financial Commissioner-cum-Secretary (Revenue) to the Government of H.P. has filed the affidavit stating that as per the reports of the Deputy Commissioner, Shimla and Tehsildar Suni the land in dispute is in possession of Smt, Hardai-petitioner No. 1 as per Jamabandi Missal Haquiat Bandobast Jadid. The Revenue Department has no proposal to acquire the land in dispute or pay compensation to the petitioners. Principal Secretary (Horticulture) to the State of H.P. has stated in his affidavit that a team comprising representatives of Agriculture, Horticulture and Revenue, Departments was constituted to ascertain the correct position on the spot. Deputy Director Agriculture, District Horticulture Officer District Shimla, Asstt. Project Officer (Horticulture), HP. Shimla, and Tehsildar Suni alongwith Kanungo and Patwari made spot inspection on 26.5.2003 under the Chairmanship of Special Secretary (Agriculture) to the Government of H.P. As per the report of the Committee the land in dispute comprising Khasra Nos. 741/661 measuring 4 bighas (now allotted a new Khasra No. 85/1 during the settlement) remained throughout in the ownership and possession of Smt. Hardai-petitioner No. 1. A photocopy of the inspection report is annexed as Annexure RA. He stated that as the land in dispute does not seem to have been acquired by the Agriculture/Horticulture Department nor any possession thereof was ever taken by the Department as is evident from the revenue record and the report of the inspection committee. The Director of Horticulture has also corroborated the report (Annexure RA) in his latest report dated 28.7.2003 (Annexure RB). The Director of Horticulture has also corroborated the report (Annexure RA) in his latest report dated 28.7.2003 (Annexure RB). It is averred that the possession of the land in dispute admitted by the then Director of Horticulture in paragraphs 6 and 8 of the counter-affidavit is wrong as the same was admitted by the then Director of Horticulture on the basis of the certificate issued by the then Horticulture Sub Inspector, Incharge of the PCDO, Suni which is denied being wrong as there is no record available pertaining to the issuance of the said certificate in the Department. According to the Secretary Horticulture, the certificate (Annexure P-3) had been issued by the Horticulture Sub Inspector with mala fide intention at his own for which he was not competent. Further, it is stated that the contents of letter dated 7.6.1961 (Annexure R-1) to the reply filed by Director of Horticulture are vague and the said letter does not bear any particulars of the petitioners-claimants as well as of any khasra number of the land in dispute. Had the land in dispute been purchased by private negotiation by the Agriculture Department, the ownership of the land would have been recorded in the revenue record in the name of Agriculture Department. As such no inference can be draw that the land in dispute had been acquired or purchased by the Agriculture or Horticulture Department for public purpose. The ownership and possession of the land as per the revenue record continued to be with the petitioners and, therefore, the question to pay compensation to the petitioners does not arise. 8. The Secretary Agriculture to the Government of H.P. in his affidavit has reiterated and re-asserted the statement made by Principal Secretary Horticulture to the Government of H.P. in his affidavit. Copies of the jamabandi for the year 1997-98 (Annexure RA) has been filed in which the ownership and possession of the land in dispute has been shown in the name of petitioner-Smt. Hardai. 9. The petitioners have also filed two sets of counter-affidavits to the affidavit of the Secretary Horticulture and Secretary Agriculture to the State of H.P. reiterating that the land in dispute was un-authorisedly occupied by the Agriculture/Horticulture Department. As the State Government has not acquired the land in dispute under the Land Acquisition Act but the. 9. The petitioners have also filed two sets of counter-affidavits to the affidavit of the Secretary Horticulture and Secretary Agriculture to the State of H.P. reiterating that the land in dispute was un-authorisedly occupied by the Agriculture/Horticulture Department. As the State Government has not acquired the land in dispute under the Land Acquisition Act but the. possession thereof was taken by the Agriculture/Horticulture Departments, it was in these circumstances that the original owner Badri Dass Gupta had filed application for the grant of Government land in exchange to him. The petitioners have reasserted that the statements made by the Secretary Agriculture and Secretary Horticulture in their respective affidavits are factually incorrect. 10. I have heard learned Counsel for the parties. Mr. G.D. Verma, learned senior Advocate appearing on behalf of the petitioners vehemently contended that as per the affidavit of the Deputy Commissioner, Shimla, the report of the Horticulture Sub Inspector, Suni (Annexure P-3) and the report of Sub Divisional Officer (Civil), Shimla dated 6.9.1994 (Annexure P-4), the land in disspute had been admittedly occupied by the respondents .without initiating proceedings under the Land Acquisition Act nor the amount of compensation has been paid to the petitioners. It was in those circumstances that the original owner of the land in dispute, namely, Badri Dass Gupta applied for the exchange of the Government land which could not be granted to him as the Nautor Rules allowing exchange of the. Government land with the private land were not made applicable to the Notified Area Committee. He next contended that the respondents cannot be permitted to chance their stands at this belated stage to contend that the land in dispute was not in possession of the Agriculture/Horticulture Departments. He also contended that the petitioners are entitled to reasonable amount of compensation for use and occupation of the land in dispute unauthorisedly by the Agriculture/Horticulture Department with interest at the rate of 9% per annum. 11. I have given my thoughtful and anxious considerations to the contentions of the learned Senior Advocate for the petitioners. It is no doubt true that Joint Secretary (Revenue) to the HP. administration had issued Notification under Section 4 of the Land Acquisition Act dated 17th February, 1961 (Annexure R-III) for acquisition of the land comprising Khasra Nos. 741/661 measuring 4 bighas for public purpose, namely, for the extension of the seed Multiplication Farm Suni. It is no doubt true that Joint Secretary (Revenue) to the HP. administration had issued Notification under Section 4 of the Land Acquisition Act dated 17th February, 1961 (Annexure R-III) for acquisition of the land comprising Khasra Nos. 741/661 measuring 4 bighas for public purpose, namely, for the extension of the seed Multiplication Farm Suni. The Director of Agriculture wrote a letter dated 7th June, 1961. (Annexure R-1) to the Joint Secretary (Revenue) in reference to letter No. 4-5/61-Rev-l dated 27th May, 1961 stating that the land for the extension of seed Multiplication Farm at Suni had since been purchased through private negotiation by the Agriculture Department and the amount thereof had also been paid to the owner through Naib Tehsildar, Suni. The tenor and trend of the said letter do not show that it was the land in dispute purchased by private negotiation by the Agriculture Department as in notification under Section 4 some other land bearing Khasra Nos. 591/328 measuring 1 bigha was also notified for acquisition. The Financial Commissioner-cum-Secretary (Revenue) in his affidavit dated 24.7.2003 has categorically stated that as per the revenue record Smt. Hardai-petitioner No. 1 wife of late Sh. Badri Dass Gupta is in possession of the land in dispute as per Jamabandi Missal Haquiat Bandobast Jadid and the revenue Department has no proposal to acquire the land in dispute or pay compensation to the petitioners. The Principal Secretary (Horticulture) to the State Government constituted a Committee of Deputy Director of Horticulture, District Horticulture Officer, District Shimla, Asstt. Project Officer (Horticulture) and TehsikJar Suni alongwith Kanungo and Patwari under the Chairmanship of Special Secretary (Agriculture). The Committee made inspection of the spot on 26.5.2003 and submitted its report (Annexure: RA). The report reveals that the possession of the land in dispute has remained with Smt. Hardet and the land was never acquired by the State Government therefore, the question of giving compensation to the owners would not arise. No . fruit plants were found in existence on the land in dispute. The possession of the land in dispute were found recorded in the name of late Badri Dass Gupta in revenue record of the years 1979-80 and 1984-85. No . fruit plants were found in existence on the land in dispute. The possession of the land in dispute were found recorded in the name of late Badri Dass Gupta in revenue record of the years 1979-80 and 1984-85. The Director of Horticulture, Himachal Pradesh through letter dated 28.7.2003 (Annexure: RB) has informed the Principal Secretary (Horticulture) that on investigation/inquiry of the record of the Department, it is revealed that there is no such record pertaining to the issuance of the certificate (Annexure:P-3) by Horticulture Sub-Inspector, Incharge, PCDO, Suni which according to the Director of Horticulture was issued by the said Inspector at his own with mala fide intention and without getting the same counter signed from the competent authority. He has also stated that as per the report of the Committee (Annexure: RA) and the revenue record, the ownership and possession of the land in dispute remained with Smt. Hardei wife of late Badri Dass Gupta. The report further states that the land of the Department at PCDO, Suni bearing new Khasra Nos. 78.79.80.81.82.83 and 85 have been transferred to Kol dam Project for which no objection certificate was issued by Special Secretary (Agriculture) to the Govt. of Himachal Pradesh dated 18.12.2001 in favour of Deputy Commissioner, Shimla. The Horticulture Department does not have any land on the spot now. The Secretary (Agriculture) to the Govt. of H.P. has also denied the averments of the petitioners that the land in dispute was ever occupied by the Agriculture Department. In Jamabandi for the year 1997-98 (Annexure RA), the ownership and possession of the land in dispute is recorded in the name of Smt. Hardei-petitioner No. 1. 12. Thus, in these proceedings under Article 226, the Court has been called upon to decide the disputed questions of fact and law relating to the precise nature and extent of right and interest of the parties in the land in dispute. The basic facts are disputed and complicated questions of law and fact depending on evidence are involved as noticed hereinabove. In the absence of firm and adequate factual foundation, it is hazardous1 to embark upon determination of the points involved. The basic facts are disputed and complicated questions of law and fact depending on evidence are involved as noticed hereinabove. In the absence of firm and adequate factual foundation, it is hazardous1 to embark upon determination of the points involved. The petitioners have not placed on record cogent and convincing material to establish that the land in dispute was unauthorisedly used and occupied by the Agriculture/Horticulture Department for pretty long period of about 23 years as claimed by them in the writ petition. This Court cannot go into the disputed and complicated questions of law and fact in exercise of extra-ordinary jurisdiction under Article 226 of the Constitution. The contentions of the learned Senior Advocate appearing on behalf of the petitioners therefore, cannot be accepted. 13. In the result, for the aforesaid reasons, the writ petition is dismissed without entering upon the merits of the case. The petitioners may, if so, advised seek their remedy by a regular suit. The parties are left to bear their own costs.