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Madhya Pradesh High Court · body

2009 DIGILAW 532 (MP)

Akhilesh N. Giri and 7 v. State of M. P.

2009-04-22

R.S.GARG, U.C.MAHESHWARI

body2009
JUDGMENT R.S. Garg, J. 1. Smt. Draupadi Goswami had filed M.P. 4894/1992 against the State Government submitting inter alia that the petitioner's land situated in Ward No. 1, Municipal Area of Baraseoni recorded as Khasra No. 899/1 area 17835 sqft was taken possession of by the State Government for construction of Baraseoni-Nagpur road. She stated before the Court that neither proceedings under Land Acquisition Act were drawn nor the possession was taken under any negotiation. It was submitted before the learned single Judge that without acquiring the land for purposes of construction of the road the respondents dispossessed and utilized the aforesaid land for the construction of the road. 2. The respondents filed their return wherein it was stated that the land was acquired by private negotiation in accordance with the instructions contained in P.W.D. Manual para 2.113 which provides acquisition of land by private negotiation. The respondents also stated that they offered compensation to the petitioners and intimated them to appear in the office but the petitioners did not appear in the office nor accepted the compensation. 3. After hearing learned Counsel for the parties the learned single Judge came to the conclusion that it was not in dispute before him that the land of the petitioner was utilized for construction of Baraseoni-Nagpur road and part of the aforesaid land is still in possession of the respondents even after constructions of the road, that the respondents took the specific objection that the land was acquired by private negotiation. However, the fact was denied by the petitioners. The learned single Judge observed that: But in this case, neither such procedure was followed nor form prescribed in appendix X was filled up by the officer of the P.W.D. or by the petitioners. In absence of this, the respondents were not entitled to take the possession of the land without any acquisition proceedings. But the fact remains that the land of the petitioners after taking possession has been utilized for the public purpose, which is Baraseoni Nagpur road. The learned single Judge after observing that the procedure adopted for private negotiation was not followed however, disposed of the petition with the following directions: 1. The petitioners may file an application to the Land Acquistion Officer, Baraseoni for adjudication of due compensation to the petitioners. 2. The learned single Judge after observing that the procedure adopted for private negotiation was not followed however, disposed of the petition with the following directions: 1. The petitioners may file an application to the Land Acquistion Officer, Baraseoni for adjudication of due compensation to the petitioners. 2. The petitioners in the aforesaid application may claim compensation and the interest under Section 34 of the Land Acquisition Act. 3. The Land Acquisition Officer on filing of the aforesaid application shall cause a notice to the respondents and thereafter after ascertaining how much of the land of the petitioners was taken into the possession for the constructions of the road and thereafter shall assess the compensation in accordance with the provisions of Section 23 of the Land Acquisition Act. 4. To ascertain the compensation, the L.A.O shall take into consideration the date on which the petitioners were dispossessed from the land and assess the compensation as on the date on which the petitioners were dispossessed. 5. As the petitioners were dispossessed, the petitioners shall be entitled for special interest as provided under Section 34 of the Act. While passing the award, the LAO shall also direct payment of interest in accordance with provisions of Section 34 of the act to the petitioners as the petitioners were dispossessed long back and were deprived with the lands. 6. After assessment, the LAO shall pass an award. If the petitioners feel dissatisfied with the aforesaid award shall be entitled to seek reference under Section 18 of the act and if such prayer is made, the Collector shall make a statement of the case under Section 19 of the Act to the Civil Court for due adjudication of the compensation in accordance with law. The petitioners being aggrieved by the said order are before us. 4. It is submitted by Shri Arya, learned senior Counsel, that the learned single Judge was unjustified in issuing such directions because the provisions contained under Section 4/ 6 of the Land Acquisition Act on the one hand were not complied with and at the same time there is nothing on the record to prove that the land was acquired under private negotiation. It is submitted by him that the petitioners did not ask the learned single Judge to award the reliefs as have been awarded to the petitioners. 5. It is submitted by him that the petitioners did not ask the learned single Judge to award the reliefs as have been awarded to the petitioners. 5. Shri R.S. Patel, learned Counsel for the respondent/State, also submitted that the learned single Judge had no jurisdiction to grant such relief to the petitioners because each of the relief runs contrary to the reliefs claimed by the petitioners. Shri Patel also submitted that present would be a case of illegal dispossession and if such is the case then the petitioner was obliged to file a suit for possession within 12 years of the illegal dispossession or claim price of the land within 12 years from which he was dispossessed. 6. It is not in dispute before us that the petitioners were dispossessed in the year 1971 and except from running pillar to post they did not do anything. Somewhere in the year 1989 the State Government issued a circular directing that if the land is acquired by private negotiation and the parties are not agreeable to accept the compensation as fixed by the department or the proceedings for making the award have lapsed then notification under Section 4 and declaration under Section 6 of the land Acquisition Act be issued. The petitioners came to this Court in the year 1993 i.e. after 22 years of their dispossession and after 4 years of issue of the circulars. The petitioners have made the following prayer in the writ petition: 1. That said owned private land of petitioner which is forcibly possessed/so called acquired by Police power by State and his subordinate agencies jointly with malafide intention is illegal and void, therefore, quashed. 2. That appropriate writ/orders to direct to respondent No. 1 and 4 published notification and declaration under provision of Land Acquisition Act and after declaring the award pay full compensation fair and just at the rate of market value from the date of declaration under Section 4(1) of Land Acquisition with 9% interest and 30% solotium from the date of possession or enjoyment of the property of petitioner along with demolition of residential house of petitioner Under Section 23 of Land Acquisition 1894. 3. Any other order/orders, direction/directions or any other suitable relief, which this Hon'ble High Court deems fit and proper in the circumstances of the case may also be granted in favour of the petitioner. 3. Any other order/orders, direction/directions or any other suitable relief, which this Hon'ble High Court deems fit and proper in the circumstances of the case may also be granted in favour of the petitioner. And by of amendment a further prayer was made: to issue a writ in the nature of mandamus and respondent No. 1 and may kindly be directed that in place of acquired land the land of Nazul vide Annexure P/14 equal land measuring area about 17835 sqft. (0.166) hectare may kindly be allotted to the petitioners. 7. Undisputedly prayer clause No. 1 does not make any prayer except a statement that the petitioner was illegally dispossessed. Prayer clause No. 2 asked the High Court to direct the respondent No. 1 and 4 to publish notification and declaration under provisions of Land Acquisition Act and after declaring the award pay full compensation, fair and just at the rate of market value from the date of declaration and other reliefs be granted. 8. In our opinion the learned single Judge was only to confine his focus to award of the relief claimed in the relief clause. 9. It appears that a reference was made to the learned First Additional District Judge, Balaghat which was received by the said Court on 13.6.88 and was registered as Miscellaenous Case No. 4/1992. The said Court rejected the reference observing that it would have no jurisdiction because the land of the petitioner was not acquired under the provisions of the Land Acquisition Act. 10. Taking into consideration the totality of the circumstances, we are of the opinion that the learned single Judge was not justified in issuing the directions as contained in its judgment. The learned single Judge was only required to consider that whether on the facts and in the circumstances of the case after a lapse of 22 years from the date of illegal dispossession of the petitioner could the High Court issue a direction to issue a notification and declaration under Section 4 and Section of the Land Acquisition Act and that whether the petitioners are entitled to some alternative land. The learned single Judge is requested to consider that whether it would be appropriate to exercise the jurisdiction in a case where the petitioner had come to the Court almost after 22 years of the illegal dispossession. The learned single Judge is requested to consider that whether it would be appropriate to exercise the jurisdiction in a case where the petitioner had come to the Court almost after 22 years of the illegal dispossession. The learned single Judge is also requested to take into consideration that if the reference earlier made was illegally rejected then without challenging the judgment and decree under the provisions of the Land Acquisition Act could the petitioners come to this Court for seeking the reliefs. The learned single Judge is also requested to see that whether the petitioner was required to approach the Civil Court within limitation to seek back possession or its price and if the limitation for seeking such reliefs has expired on the date of this petition, is the petitioner entitled to any reliefs in this petition. 11. The appeal is allowed. The matter is remanded back to the learned single Judge to decide the petition in accordance with law. 12. The parties present in the Court shall appear before the learned single Judge on 11.5.2009. 13. The Registry is directed to list the matter before the learned single Judge on 11.5.2009.