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2011 DIGILAW 2359 (RAJ)

Leela Wanti v. State of Haryana

2011-11-04

G.S.SINGHVI, RANJANA PRAKASH DESAI

body2011
Hon'ble SINGHVI, J.—Leave granted. 2. Whether the State Government is under an obligation to return the acquired land to the owners after the purpose of acquisition is accomplished is the question which arises for consideration in this appeal filed against order dated 21.1.2008 passed by the Division Bench of the Punjab and Haryana High court in Civil Writ Petition No. 9152 of 2007. 3. One Shri Radha Krishan owned several parcels of land in Village Shodapura, Tahsil Madlauda, District Panipat. After the death of Radha Krishan in 1972, land owned by him was inherited by his legal heirs including appellant No. 4 Satish Chander (son), appellant No. 5 Smt. Seeta Devi (daughter) and appellant No. 6 Swaran Lata (daughter) Some of the other heirs of Radha Krishan bequeathed their shares to his grandchildren (appellant Nos. 2 and 3) by executing separate Wills. A general power of attorney was also executed in favour of appellant No.1 Smt. Leela Wanti alias Savita Rani, wife of appellant No.4 Satish Chander. 4. In 1976, the State Government acquired the appellants' land for consideration of brick kiln for feeder and return channels in Village Shodapura. Notifications under Sections 4 and 6 read with Section 17 of the Land Acquisition Act, 1894 (for short, 'the Act') were issued on he same day, i.e., 7.9.1976. The Land Acquisition Collector passed award dated 6.12.1976 and the compensation determined by him was paid to the appellants, who received the same without raising any objection/protest. 5. After 23 years, the appellants through their advocate Shri A.K. Wadhawan, sent notice dated 13.7.1999 to the functionaries of the Irrigation Department and the Land Acquisition Collector for return of the acquired land by asserting that the purpose for which land was acquired had been achieved by he Irrigation Department and the acquired land is now lying abandoned in the form of pits for last 17-18 years and that the same is no more required by he concerned Department. In the notice it was also mentioned that adjoining land of the appellants compromised in Rectangle No. 31, Killa No. 13, 12/1 Min. was also acquired by he Irrigation Department for the purpose of extension of Government kiln but the same was returned after the purpose of acquisition was achieved. 6. In the notice it was also mentioned that adjoining land of the appellants compromised in Rectangle No. 31, Killa No. 13, 12/1 Min. was also acquired by he Irrigation Department for the purpose of extension of Government kiln but the same was returned after the purpose of acquisition was achieved. 6. In his reply to the notice, the Land Acquisition Officer vide his letter dated 26.8.1999 informed the appellants' advocate that he does not have the power to acquire or return the land and that the appellants may contact Collector, Panipat. In a separate reply Superintending Engineer (Irrigation) (Construction Circle, Karnal) disclosed that land was acquired for brick kiln for feeder and return channel for thermal plant and the work was executed as a deposit work of Haryana State Electricity Board (HSEB). According to the Officer concerned, after completion of the project land was transferred to HSEB. Yet another reply was sent by Engineer-in-Chief/Construction, PTPP, HPGC, Panipat stating therein that feeder channel construction by the Irrigation Department is under the control of the Chief Engineer (O & M), PTPS, Panipat. 7. Having failed to evoke favourable response from the concerned authorities, the appellants filed a petition under Article 226 of the Constitution and prayed for issue of mandamus to the respondents to restore the land to them. In support of their claim, the appellants relied upon Paragraph 493 of the Land Administration Manual, Standing Order 28 and the judgment of this Court in State of Haryana vs. Suraj (2004) 12 SCC 538 . The appellants also pleaded that not only their land comprised in Rectangle No.31 but land owned by others, namely, Chanan Singh, Rattan Singh, Sher Singh sons of Jawahar Singh and Pratap Chand son of Jagdishwar Lal had been returned to the owners after fulfillment of the object of acquisition. 8. In the counter-affidavit filed on behalf of the respondent Nos. 2 and 4 it was pleaded that the acquired land was utilized for setting up brick kiln and other purposes including taking of earth of raising Ash Podn Bandh. It was further pleaded that there is no provision in Standing Order 28 for return of the acquired land. 9. In a separate written statement filed on behalf of respondent Nos. 2 and 4 it was pleaded that the acquired land was utilized for setting up brick kiln and other purposes including taking of earth of raising Ash Podn Bandh. It was further pleaded that there is no provision in Standing Order 28 for return of the acquired land. 9. In a separate written statement filed on behalf of respondent Nos. 1, 3 and 5, it was averred that after the acquired land was transferred to the Haryana Sate Electricity Board in 1983, the same was used for the specified public purpose. In Para 8 of the counter-affidavit it was pleaded that as a policy,the brick kilns were set up by the Irrigation Department in the same area where new channel/canal was constructed. It was further pleaded that after completion of the work the acquired land was utilized for other purpose. 10. The High Court negatived the appellants' plea that in view of Standing Order 28, the respondents were obliged to return the acquired land by observing that the object of utilizing the acquired land cannot remain static for all times and the same can be used for other purposes. The High Court also observed that once the acquired land vested in the State Govt., the same cannot be returned to the owners after a gap of 30 years. 11. Shri Mahendra R. Anand, learned senior counsel appearing for the appellants argued that the acquisition of the appellants' land was ex facie illegal because the State Government had invoked the urgency provisions without any tangible reason and, thereby, deprived the land owners of their valuable right to file objections under Section 5A(1) and to be afforded an opportunity of hearing in terms of Section 5A(2). He submitted that this plea was specifically raised before the High Court but the same has not been adequately considered. Learned Senior Counsel then relied upon Standing Order 28 and argued that the respondents are duty-bound to return the acquired land because the purpose of acquisition has already been achieved. Learned counsel submitted that the brick kiln constructed by the Irrigation Department for manufacturing bricks required for lining the feeder and return channel does not exist any more and, as such, the respondents do not have any option but to return the acquired land to the appellants. 12. Learned counsel submitted that the brick kiln constructed by the Irrigation Department for manufacturing bricks required for lining the feeder and return channel does not exist any more and, as such, the respondents do not have any option but to return the acquired land to the appellants. 12. Learned counsel for the respondents supported the impugned order and argued that the appellants do not have the lucus to seek return of the acquired land because the same had already been utilized for the specified public purpose. He further argued that the appellants' challenge to the acquisition proceedings was highly belated and they cannot seek invalidation of the notifications issued under Sections 4 and 6 read with Section 17 of the Act after a long time gap of more than 30 years. 13. We have considered the respective submissions and examined the records. In our view, the High Court did not commit any error by not entertaining the appellants' challenge to the acquisition of land because they did not offer any explanation for the long time gap of more than three decades between the issue of notifications under Sections 4 and 6, i.e., 1976 and filing of the writ petition, i.e., 2007. 14. In State of Madhya Pradesh vs. Bhailal Bhai (1964) 6 SCR 261 : AIR 1964 SC 1006 , a Constitution Bench of this Court held hat even though no period of limitation has been prescribed for filing a petition under Article 226 of the Constitution, the High Court can not suit the petitioner who is guilty of laches. The Constitution Bench also observed hat if the delay is more than the period prescribed for filing a suit then the same would ordinarily be treated as unreasonable and the High Court will be fully justified in denying relief to the petitioner unless cogent explanation is offered for the delay. These propositions are borne out from the following extracts of the judgment: "It has been made clear more than once that the power to give relief under Art. 226 is a discretionary power. This is specially true in the case of power to issue writs in the nature of mandamus. Among the several matters which the High Court rightly take into consideration in the exercise of that discretion is the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it. This is specially true in the case of power to issue writs in the nature of mandamus. Among the several matters which the High Court rightly take into consideration in the exercise of that discretion is the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it. Another is the nature of controversy of facts and law that may have to be decided as regards the availability of consequential relief. Thus, where, as in these cases, a person comes to the Court for relief under Art. 226 on the allegation that he has been assessed to tax under a void legislation and having paid it under a mistake is entitled to get it back, the Court, if it finds that the assessment was void, being made under a void provision of law, and the payment was made by mistake, is still not bound to exercise its discretion directing re-payment. Whether repayment should be ordered in the exercise of this discretion will depend in each case on its own facts and circumstances. It is not easy nor is it desirable to lay down any rule for universal application. It may, however, be stated as a general rule that if there has been unreasonable delay the court ought not ordinarily to lend its aid to a party by this extraordinary remedy for mandamus. Learned counsel is right in his submission that the provisions of the Limitation Act do not as such apply to the granting of relief under Art. 226. It appears to us however that the maximum period fixed by he legislature as the time within which the relief by a suit in a civil Court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Art. 226 can be measured. The Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it, will almost always be proper for the court to hold that it is unreasonable. The period of limitation prescribed for recovery of money paid by mistake under the Limitation Act is three years from he date when the mistake is known. The period of limitation prescribed for recovery of money paid by mistake under the Limitation Act is three years from he date when the mistake is known. If the mistake was known in these cases on or shortly after January 17, 1956 the delay in making these applications should be considered unreasonable." (Emphasis supplied) 15. The doctrine of laches has been invoked in Bhagat Singh vs. State of U.P. (1999) 2 SCC 384 : AIR 1999 SC 436 : 1999 AIR SCW 101; Northern Indian Glass Industries vs. Jaswant Singh (2003) 1 SCC 335 : AIR 2003 SC 234 : 2002 AIR SCW 4685; Haryana State Handloom & Handicrafts Corporation vs. Jain School Society (2003) 12 SCC 538 : AIR 2004 SC 850 : 2003 AIR SCW 7079 and Government of A.P. vs. Syed Akbar (2005) 1 SCC 558 : AIR 2005 SC 492 : 2004 AIR SCW 7125) for negating challenge to the acquisition of land. 16. We shall now deal with the question whether the appellants are entitled to seek a direction for return of the acquired land on the ground that the purpose for which land was acquired has already been achieved. Paragraph 493 of Land Administration Manual, which finds reference in Standing Order 28 and on which reliance has been placed by learned senior counsel for the appellants reads as under : Paragraph 493 Disposal of land no longer required, where land in the permanent occupation of any departments of the Punjab Government is no longer required, it should be handed over to the Deputy Commissioner of the District, who becomes responsible for the disposal of it under the orders of the Commissioner. It may not, however, be permanently alienated without the previous sanction of the Government. There is no legal bar to its being put up to auction. But as a matter of grace, the Government is usually willing to restore agricultural and pastoral land to the persons from whom it acquired it or to their heirs on their refunding the amount paid as compensation less then 15% granted for compulsory acquisition. The price may be lowered, if necessary, on account of deterioration, or enhanced in the rare case of land having been improved by he use to which the Government had put it. The improvement must be one affecting the quality of the land. The price may be lowered, if necessary, on account of deterioration, or enhanced in the rare case of land having been improved by he use to which the Government had put it. The improvement must be one affecting the quality of the land. The fact that the land which was unirrigated at the time of acquisition can when relinquished, be watered by a canal is not an improvement of this sort. Considering how great the rise in the market value of the land has been, the terms stated above are very liberal. It is not necessary to adopt them in their entirety where the persons concerned are remote descendants or relations of the original holders and where the circumstances of the case are at all out of common, when for example no price, or merely a nominal price, was paid to the owner in he first instance, or when the rise in the value of land in the neighbourhood has been exceptionally large, these facts should be pointed out when referring such cases for orders so that the Government may have sufficient material before it to decide whether to offer any special terms to the heirs of the persons from whom that land was acquired. 17. A reading of the above reproduced Paragraph of the Land Administration Manual nowhere suggests that the State Government is duty-bound to restore the acquired land to the owners after the purpose of acquisition is accomplished. It merely mentions that as a matter of grace the Government is usually willing to restore agricultural and pastoral land to the owners on their refunding the amount of compensation. If Paragraph 493 is read in the manner suggested by the learned counsel for the appellants then in all the cases the acquired land will have to be returned to the owners irrespective of the time gap between the date of acquisition and the date on which he purpose of acquisition specified in Section 4 is achieved and the Government will not be free to use the acquired land for any other public purpose. Such an interpretation would also be contrary to the language of Section 16 of the Act, in terms of which the acquired land vests in the State government free from all encumbrances and the law laid down by this Court that lands acquired for a particular public purpose can be utilized for any other public purpose. 18. The judgment of this Court in State of Haryana vs. Suraj (supra) turend on its own facts. In that case, land of the respondents was acquired by the State Government for installation of a brick kiln for making the Bhakra Canal (the date of year of the acquisition has not been mentioned in the judgment). On 28.6.1977 the State government passed an order declaring the land as surplus and directed that the same be disposed of as per Standing Order 28, which postulated that priority will be given to the landowners. The Financial Commissioner, instead of disposing of the land in accordance with Standing Order 28, passed an order dated 12.2.1990 and transferred the surplus land to the Forest Department free of cost. The suit filed by the respondents was decreed by the trial Court. The First and the Second Appeal filed by the appellant was dismissed by Additional District Judge, Sonepat and the learned Single Judge of the High Court, respectively. This Court held that once the State Government had declared the land surplus and directed its disposal as per Standing Order 28, the Financial Commissioner did not have the jurisdiction to transfer the same to the Forest Department free of cost. 19. In the aforesaid judgment no proposition of law was laid down which could be treated as a binding precedent. That apart, the factual matrix of the present case shows that the acquired land was used for construction of feeder and return channel for Thermal Plant and after the public purpose as specified in the acquisition notification was fulfilled, the land was transferred to HSEB and now it is with respondent No.2, i.e., Haryana Power Generation Corporation. This being the position, the High court cannot be said t have committed any error by declining the appellants' prayer for issue of a mandamus to the respondents to return the acquired land. 20. This being the position, the High court cannot be said t have committed any error by declining the appellants' prayer for issue of a mandamus to the respondents to return the acquired land. 20. The approach adopted by the High Court is consisting with the law laid down by this Court in State of Kerala vs. M. Bhaskaran Pillai (1997) 5 SCC 432 : AIR 1997 SC 2703 : 1997 AIR SCW 2673) and Government of A.P. vs. Syed Akbar ( AIR 2005 SC 492 : 2004 AIR SCW 7125) (supra). In the first of these cases, the Court considered validity of an executive order passed by the Government for assignment of land to the erstwhile owners and observed: "In view of the admitted position that the land in question was acquired under the Land Acquisition Act, 1894 by operation of Section 16 of the Land Acquisition Act, is stood vested in the State free from all encumbrances. The question emerges: whether the Government can assign the land to the erstwhile owners? It is settled law that if the land is acquired for a public purpose, after the public purpose was achieved, the rest of the land could be used for any other public purpose. In case there is no other public purpose for which the land is needed, then instead of disposal by way of sale to the erstwhile owner, the land should be put to public auction and the amount fetched in the public auction can be better utilized for the public purpose envisaged in the Directive Principles of the Constitution. In the present case, what we find is that the executive order is not in consonance with the provision of the Act and is, therefore, invalid. Under these circumstances, the Division Bench is well justified in declaring the executive order as invalid. Whatever assignment is made, should be for a public purpose. Otherwise, the land of the Government should be sold only through the public auctions so that the public also gets benefited by getting higher value." 21. The facts of the second case show that the respondents succeeded in persuading the Andhra Pradesh High Court to order release of land in terms of Standing Order 90(32) of the A.P. Board of Revenue (as amended in 1998). The facts of the second case show that the respondents succeeded in persuading the Andhra Pradesh High Court to order release of land in terms of Standing Order 90(32) of the A.P. Board of Revenue (as amended in 1998). This Court referred to Sections 16 and 48 of the Act and observed : "If the land relinquished is likely to be again required for public purposes, it should be merely leased out for such term as may be considered desirable in each case. If the acquired land was an agricultural land at the time of acquisition, it should be disposed of inviting for sale in public auction by giving wide publicity in respect of sale. If at the time of sale, anybody puts forth his claim in respect of any field either as an adjacent owner or as an original owner, the sale of that field should be stopped and his claim investigated and disposed of in the manner specified in sub-clause (i) and (iv) of Note (2) of the Board's Standing Order 90(32). If it is found that his claim is not proved, the field should be sold by public auction. In the case on hand, there is nothing on record to show that the part of the acquired land which remained unused was relinquished by the Government. A letter of Resident Engineer stated that the unused land was no more required cannot amount to relinquishment of the said land by the competent authority. In order to make a claim under para 32 of the said Board's Standing Order in the first place, it was necessary that the competent authority had subsequently relinquished the unused land. After such relinquishment of the land, the land had to be notified for sale in public auction. If at the time of sale of such land, the original owner made a claim, sale could be stopped and his claim could be investigated and thereafter the land was to be disposed of in the manner specified under the said paragraph." Added to this, by virtue of the amendment to para 32 brought about by G.O.Ms. If at the time of sale of such land, the original owner made a claim, sale could be stopped and his claim could be investigated and thereafter the land was to be disposed of in the manner specified under the said paragraph." Added to this, by virtue of the amendment to para 32 brought about by G.O.Ms. No. 783 dated 9.10.1998, the land for the public purpose shall be utilized for the same purpose for which it was acquired as a far as possible and in case the land is not used for the purpose for which it was acquired due to any reason, the land shall be utilized for any other public purpose as deemed fit." 22. For the reasons stated above, we hold that the appellants have failed to make out a case for issue of a mandamus to the respondents to release the acquired land in their favour. 23. In the result, the appeal is dismissed without any order as to costs.