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2005 DIGILAW 746 (JHR)

ALL IMAM v. STATE OF BIHAR

2005-09-29

R.K.MERATHIA

body2005
Judgment : ( 1 ) PETITIONER has prayed for a direction to denotify 2. 88 Acres of lands blearing Plot No. 268/1150, Jamabandi No. 80 of Mouza Madanshi Tapua, District sahebganj, for acquisition and reconveyance/restoration of the said land to the pe-titioner and for payment of adequate compensation for wrongfully depriving him and his co-sharers for enjoyment of the lands in question. ( 2 ) PETITIONERs case is that by Letter No. DLA. S. P.- 45. 59 dated 6/4/1959; the government intended to acquire 2. 96 Acres of land permanently, for constructing a Girls high School Building and its compound at sahibganj and the same was published vide declaration No. 1126 dated 31/1/1959 at page 661-62 Part II of the Bihar Gazette dated 25/2/1959. By the said letter, the deputy Commissioner, Dumka was authorized under section 17 of the Land Acquisition Act, 1894 (hereinafter referred to as "the act") to take immediate possession of the land as shown in the Index Map, after expiry of fifteen days from the publication of the notice under Section 9 of the Act, as the same was urgently required. Pursuant to the said authorization, the Deputy Commissioner acquired 2. 88 Acres of lands by order dated 18/5/1959. Petitioner and his co-sharers objected to such acquisition by filing their claim on 24/3/1960. Sometime in the year 1960, Petitioner and his co-sharers received compensation amount against acquisition of their land in question. Petitioner and his co-sharers filed their written statement in Land Acquisition Reference Case no. 21 of 1962 for enhancement of compensation sometimes in the month of June, 1962. Petitioners further case is that by letter dated 9-4-1960, the Chairman, Sahebganj municipality requested for selection of different site as the lands acquired were not suitable for the said purpose. In the year 1986, petitioner made representation to the chief Minister of Bihar for restoration/reconveyance of the lands in question followed by other representation and notice, but nothing was done in the matter. It is further stated that the Government has not constructed any Girls High School over the acquired land. ( 3 ) MR. Rajeeva Sharma, learned senior counsel appearing for the petitioner, relying on Article 104 of the Executive Instructions submitted that lands can be restored in favour of the petitioner and his co-sharers. ( 4 ) MR. It is further stated that the Government has not constructed any Girls High School over the acquired land. ( 3 ) MR. Rajeeva Sharma, learned senior counsel appearing for the petitioner, relying on Article 104 of the Executive Instructions submitted that lands can be restored in favour of the petitioner and his co-sharers. ( 4 ) MR. H. K. Mehta, learned Government advocate appearing for the respondents submitted that the acquisition proceeding was complete and the petitioner and his co-sharers received compensation in the year 1960-1962. Even if their statement about making representation for restoration of the lands is accepted, it was made in 1986 i. e. after about 25 years of completion of acquisition proceedings. He further submitted that the petitioner and his co-sharers left their challenge to the acquisition proceedings and claimed enhancement of compensation, which will be evident from their written statement (Annexure-7), filed in Land acquisition Reference Case No. 21 of 1962. ( 5 ) REGARDING Executive Instruction No. 104, he submitted that the same is in conflict with the provisions of Section 48 of the act. Referring to Section 16 of the Act, he submitted that after making of the award and taking possession of the lands, the lands absolutely vested in the Government free from all encumbrances. Referring to Section 48 of the Act, he submitted that the Government is at liberty to withdraw from the acquisition of any land of which possession has not been taken but the said Executive instruction says that the land can be restored at any state of the case after possession has been taken. He relied on a decision of the Supreme Court in the case of Govt. of a. P. v. Syed Akbar (2005) 1 SCC 558 : ( AIR 2005 SC 492 ) to show that (i) acquired land vests in the Government absolutely free from all encumbrances; (ii) land acquired for a public purpose can be utilized for any other public purpose; and (iii) acquired land cannot be reassigned or re-conveyed to the original owner merely on the basis of an executive order. He also relied on the case of Paluru ramkrishanaiah v. Union of India (1989) 2 scc 541 : ( AIR 1990 SC 166 ) to show that an executive instruction can make a provision only with regard to a matter which is not covered by the Rules but such executive instruction cannot override any provision of an existing Rule. He also relied on the case of Northern Indian Glass Industries v. Jaswant Singh (2003) 1 SCC 335 :: ( AIR 2003 sc 234 ) in support of his submission that even if the land is not used for the purpose for which it was acquired, the owner has not right to seek for revesting of the land in himself. Mr. Mehta pointed that in the said case, land was not used for more than 17 years. He further relied on the case of C. Padma v. Dy. Secretary to the Govt. of T. N. (1997) 2 SC 627 in support of his submission that the acquired land having vested in the State and compensation paid to the claimant, thereafter the claimants are not entitled to restitution of possession on the ground that either original public purpose had ceased to be in operation or the land could not be used for any other purpose. ( 6 ) MR. Mehta referred to the letter dated 6th January, 1989 issued by the Additional collector, Sahebganj to the Government (Annexure-10)regarding petitioners claim for restoration of 1. 40 Acres of land, to show that the acquired land was already in use of the School; the boundary was being constructed; the land was being developed and a portion of land was being used for play ground of the School. ( 7 ) I find force in the submissions of Mr. Mehta that petitioner cannot get the land restored on the basis of Executive Instructions No. 104, which is clearly in conflict with Section 48 and the other provisions of the Act. The acquisition was complete and compensation was received by the petitioner and his co-sharers prior to 1962. The land vested with the Government. From Annexure-10 dated 6-1-1989, it appears that the land was being used for the purpose of school. Even if the land or a portion of the same is not used for the purpose for which it was acquired, petitioner cannot claim restoration of the same. The land vested with the Government. From Annexure-10 dated 6-1-1989, it appears that the land was being used for the purpose of school. Even if the land or a portion of the same is not used for the purpose for which it was acquired, petitioner cannot claim restoration of the same. It is for the government to utilize the same for any other public purpose. A representation is alleged to have been made in 1986 i. e. after 25 years of the acquisition. ( 8 ) IN the circumstances, I find no merit in this writ petition, which is, accordingly, dismissed. However, there will be no order as to costs. Petition dismissed. --- *** --- .