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2008 DIGILAW 279 (PAT)

Gaity Ara Rozy v. State Of Bihar

2008-02-08

MIHIR KUMAR JHA

body2008
Judgment 1. Heard Counsel for the petitioners and the State. 2. In this writ application, the petitioners have assailed the entire land acquisition proceedings pedaining to acquisition of land for construction of a bye-pass road in the district of Bhagaipur including the notification under Section 4 of the Act dated 5.5.2001 as also the declaration dated 11.5.2001 shown to be published in the district gazette on 20.2.2001. A further prayer has been made that the respondents be restrained for not dispossessing the petitioners from the land in question. 3. Mr. Raghib Ahsan, learned Senior. Counsel appearing on behalf of the petitioners has submitted that the entire land acquisition proceedings has lapsed in terms of Section 11A of the Land Acquisition Act inasmuch as the declaration under Section 6 of the Act was published in the gazette on 20.2.2001 and the period of two years came to be completed on 20.2.2003 and in view of the fact that no award was made in this period of two years, the automatic statutory reflux of time, the proceedings must have come to an end specially when even the possession was not taken in this period of two years. 4. This aspect of the matter has been dealt with in paragraph nos. 11 and 20 of the counter affidavit where the stand of the respondents is that in a case of emergent acquisition, the operation of Section 11A of the Act will not come into force. The respondents have also strongly relied to the judgment of the Apex Court in the case of Satendra Prasad Jain & Others vs. State of U.P. and Others, reported in AIR 1993 SC 2517 . In the counter affidavit, it has also been explained that the date of declaration on the basis of one page of gazette notification (internal page 10), cannot be treated to be 20.2.2001 which is a typographical error and in fact the date of publication in the gazette is 20.2.2002 and for this purpose, the copy of the entire gazette notification has been placed on record by way of Annexure-C to the counter affidavit in view of Annexure-C, Mr. Ahsan does not dispute that there may be a typographical error in page no. 10 of the gazette notification and therefore he agrees that the date of declaration under Section 6 of the Act can be and should be treated as 20.2.2002. 5. Ahsan does not dispute that there may be a typographical error in page no. 10 of the gazette notification and therefore he agrees that the date of declaration under Section 6 of the Act can be and should be treated as 20.2.2002. 5. In any event, in view of the judgment of the Apex Court in the case of Satendra Prasad Jain (supra), it has to be held that when land is acquired by reason of urgency and Government takes possession of the land prior to making of the award under Section 11 and thereupon the land-owner is divested of the title to the land which is vested in the Government in terms of Section 17(1) of the Act, there can be no scope for application of Section 11A of the Act. The view of the Apex Court in the aforementioned judgment while laying down the law of the land, it has been clarified that Section 11A of the Act will not come into force in a case of emergent acquisition where the possession has been taken prior to the publication of gazette because the lands have already vested in the Government and there is no provision in the said Act by which land statutorily vested in the Government can be revert to the owner. In the present case from the dates mentioned in the counter affidavit, it is absolutely clear that after a declaration was made and published in the district gazette on 20th February, 2002, the authorities took possession of the land on 11.3.2004 as asserted in paragraph no. 12 of the counter affidavit read with Annexure-B, the order sheet, an award was made only thereafter on 30th April, 2004. In that view of the matter, the first point raised by Mr. Ahsan impugning the entire land acquisition proceedings on the ground of Section 11A of the Act must fail. 6. Mr. Ahsan next contended that the proceedings is bad because there was a complete non-compliance of the provision of Section 17(3-A) of the Act inasmuch as the law requires that in an emergent land acquisition proceedings, the possession of the land can be taken only after offering the payment of amount of 80 per cent and in this case, the same was not done. The difficulty for this Court is that this point was not raised in the writ application and therefore, no answer to it has been given in the counter affidavit. Such difficulty, however, now for the Court has overcome in view of the fact that the respondents. in the counter affidavit have stated that the 100 per cent amount being the total award amount was offered to the petitioner on 7.8.2004 after making of the award. This fact that such an award was made and notices were sent on 7.8.2004 as clearly stated in paragraph no. 14 of the counter affidavit supported by a document contained in Annexure-F thereof has not been controverted specifically and in fact in paragraph no. 8 of the rejoinder to the counter affidavit, it has been only stated that since the petitioners were objecting to the acquisition of the land in question they did not accept the award. It is thus clear that this point also as pressed by Mr. Ahsan has no merit specially when the entire amount of award was also offered and was not accepted. 7. Mr. Ahsan thereafter submitted that in any event, the taking possession of the land itself was contrary to the provisions of the Land Acquisition Act inasmuch as there was no notice under Section 9 of the Act served on the petitioners and yet they were deprived of their possession on 11.3.2004. Unfortunately, this fact was not asserted in the writ petition. The writ petition in fact came to be filed on 8.9.2004 at the point of time when everything in the land acquisition proceeding was completed and therefore, once this point was not raised in the writ application, the same cannot be now permitted to raise in view of the fact that something has been stated in the rejoinder affidavit. The law of pleadings must be strictly followed at least in the writ petitions because as has been held by Supreme Court in a decision reported in AIR 1988 SC 2181 that the writ petition must contain the pleadings with evidences and in absence thereof the Court will not be in a position to accept any statement on mere assertion. 8. 8. In that view of the matter, the alleged non-service of Section 9 notice having been not established by the petitioner from any pleadings and/or documents, this ground for assailing the entire land acquisition proceedings must also fail. 9. As a matter of fact, this writ application is itself fit to be dismissed for the simple ground that the notification under Section 4 of the Act dated 5.5.2001 and the declaration dated 11.5.2001 published in the district gazette on 28th June, 2001 and 22.2.2002 respectively were challenged before this Court not only after the vesting of the.land upon taking possession of the same but also after declaration of the award. This aspect of the matter in fact has been decided by this Court in the case of Keshav Pal and Others vs. State of Bihar and Others reported in AIR 1985 Patna 70 [: 1985 PLJR 779 ] where the Division Bench on consideration of the judgment of the Apex Court in the case of Babu Singh vs. Union of India reported in 1979 SC 1713 had held a delay of two years from the date of notification under Section 4 of the Act to be fata! for maintaining the writ application. In this writ application, there is no explanation whatsoever as to why the petitioners have waited for a period of more than three years from the date of Section 4 notification and in fact the writ application is fit to be also dismissed on the ground of gross laches and delay on the part of the petitioners. 10. Thus, on an. overall analysis, this Court finds no reason to interfere with the land acquisition proceedings. In the result, this application is dismissed. However, there will be no order as to costs.