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2012 DIGILAW 1564 (PAT)

Sheshnath Sah v. State of Bihar

2012-11-22

AJAY KUMAR TRIPATHI

body2012
ORDER There are eight petitioners in the present writ application who have filed the writ seeking a direction or mandamus upon the respondent authorities to restore their land to them which was acquired under the Land Acquisition Act of 1894 in the year 1976- 1977. The main contention on behalf of the petitioners as urged by the learned Senior Advocate is that if the object and purpose of the original acquisition does not subsists or has undergone a change in its utilization then the original land holders have a right to seek its reversion to them by whatever mechanism which may be available before the State including so called executive instructions as have been provided in paragraph 104 which has been brought to the notice of this Court in the compendium relating to the Bihar Land Acquisition Manual. 2. The short facts are that land of these petitioners along with many other persons was acquired vide Land Acquisition Case No.44 of 1976-77. Acquisition was made by the State for the benefit of a private company to set up a Paper Mill. Paper Mill was set up but it did not remain in business beyond five years and thereafter went into liquidation. Stand of the petitioners is that thereafter the land ought to have been returned to the petitioners and the State has no business much less any other authority to illegally allow the land to be used, grabbed or utilized by yet another private company which is running a Sugar Factory in the adjoining piece and parcel of land. 3. The basic issue is whether an acquisition made under the Land Acquisition Act for which the procedure laid down under the Act was duly followed, compensation paid and accepted can create a right in the original land holders at a subsequent date merely because the object and purpose of the acquisition, according to them, has undergone a change and whether some kind of a judicial or statutory right exists in their favour for reversion of the land to them due to non- utilization or for diversion or deviation from the object and purpose of the original acquisition. 4. Learned Senior Counsel for the petitioners has drawn the attention of this Court to two observations made in paragraphs 42 and 43 of a decision rendered by the Hon’ble Apex Court in the case of Raghbir Singh Sehrawat Vs. 4. Learned Senior Counsel for the petitioners has drawn the attention of this Court to two observations made in paragraphs 42 and 43 of a decision rendered by the Hon’ble Apex Court in the case of Raghbir Singh Sehrawat Vs. State of Haryana & others, reported in 2012 (1) SCC 792 . Paragraphs 42 and 43 are reproduced below:– “42. It is difficult, if not impossible, to appreciate as to why the State and its instrumentalities resort to massive acquisition of land and that too without complying with the mandate of the statute. As noted by the National Commission on Farmers, the acquisition of agricultural land in the name of planned development or industrial growth would seriously affect the availability of food in future. After independence, the administrative apparatus of the State has not spent enough investment in the rural areas and those who have been doing agriculture have not been educated and empowered to adopt alternative sources of livelihood. If land of such persons is acquired, not only the current but the future generations are ruined and this is one of the reasons why the farmers who are deprived of their holdings commit suicide. 43. It also appears that the authorities concerned are totally unmindful of the plight of those sections of the society, who are deprived of their only asset like small house, small industrial unit, etc. They do not realize that having one’s own house is a lifetime dream of a majority of the population of this country. Economically affluent class of society can easily afford to have one or more houses at any place or locality in the country but other sections of the society find it extremely difficult to purchase land and construct house. Majority of the people spend their lifetime savings for building a small house so that their families may be able to live with a semblance of dignity. Therefore, it is wholly unjust, arbitrary and unreasonable to deprive such persons of their houses by way of the acquisition of land in the name of development of infrastructure or industrialization. Similarly, some people set up small industrial units after seeking permission from the competent authority. They do so with the hope of generating additional income for their family. If the land on which small units are established is acquired, their hopes are shattered. Similarly, some people set up small industrial units after seeking permission from the competent authority. They do so with the hope of generating additional income for their family. If the land on which small units are established is acquired, their hopes are shattered. Therefore, before acquiring private land the State and/or its agencies/ instrumentalities should, as far as possible, use land belonging to the State for the specified public purposes. If the acquisition of private land becomes absolutely necessary, then too, the authorities concerned must strictly comply with the relevant statutory provisions and the rules of natural justice.” 5. Counsel representing the private respondent no.4 has filed a very detailed counter affidavit with supporting materials contesting the maintainability of the writ application as well as seriously resisting any kind of relief which the petitioners are looking for in the given set of facts as well as the law as it stands today. 6. It is the averment in their counter affidavit that the original Paper Mill in question went into liquidation. As the headquarters of that company was located at Calcutta, the liquidation proceeding was initiated at Calcutta High Court. Since there was no occasion or any hope for the revival of the unit in question, the learned Company Judge of the Calcutta High Court put all properties to auction for satisfaction of the dues of the creditors. The property located at Bagaha, which is the bone of contention in the present writ application, was also put on auction. A series of orders passed by the High Court from time to time has been annexed with the counter affidavit in support thereof. 7. The private respondent no.4 acquired a right by virtue of being a successful bidder for the property and the Court decided to hand over the property with lease right for a period of 99 years in favour of the private company. Deed of transfer as well as lease has been executed by the official receiver at the instance of the Calcutta High Court and the private respondent is in possession of the said property after the execution of the deed on 12.12.2009. Deed of conveyance so registered has been annexed as Annexure R/7. 8. Deed of transfer as well as lease has been executed by the official receiver at the instance of the Calcutta High Court and the private respondent is in possession of the said property after the execution of the deed on 12.12.2009. Deed of conveyance so registered has been annexed as Annexure R/7. 8. In other words, according to the respondent no.4, they have a legal right over the property in question and till the judicial orders stand in their favour as well as the deed of conveyance remains operative and valid, there is no occasion for returning the land in question to the petitioners. 9. In the alternative, it is also argued that the land once vested in the State can never be returned to the original land holders merely because there is some change in the purpose and object for which the initial acquisition was made. In this regard attention of the Court has been drawn to a recent decision rendered in the case of Banda Development Authority, Banda Vs. Moti Lal Agarwal and others, reported in (2011) 5 SCC 394 . The relevant paragraph is paragraph 39 which is reproduced herein below:– “39. In Satendra Prasad Jain Vs. State of U.P. this Court considered the applicability of Section 11-A in cases involving acquisition of land under Section 4 read with Section 17 and observed: (SCC p.374, para 15) “15. Ordinarily, the Government can take possession of the land proposed to be acquired only after an award of compensation in respect thereof has been made under Section 11. Upon the taking of possession the land vests in the Government, that is to say, the owner of the land loses to the Government the title to it. This is what Section 16 states. The provisions of Section 11-A are intended to benefit the landowner and ensure that the award is made within a period of two years from the date of the Section 6 declaration. In the ordinary case, therefore, when the Government fails to make an award within two years of the declaration under Section 6, the land has still not vested in the Government and its title remains with the owner, the acquisition proceedings are still pending and, by virtue of the provisions of Section 11-A, lapse. In the ordinary case, therefore, when the Government fails to make an award within two years of the declaration under Section 6, the land has still not vested in the Government and its title remains with the owner, the acquisition proceedings are still pending and, by virtue of the provisions of Section 11-A, lapse. When Section 17 (1) is applied by reason of urgency, the Government takes possession of the land prior to the making of the award under Section 11 and thereupon the owner is divested of the title to the land which is vested in the Government. Section 17 (1) states so in unmistable term. Clearly, Section 11-A can have no application to cases of acquisitions under Section 17 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 revert to the owner.” (emphasis supplied) The same view was reiterated in Awadh Bihari Yadav Vs. State of Bihar, Pratap Vs. State of Rajsthan, Parsinni Vs. Sukh, Allahabad Development Authority Vs. Nasiruzzaman and Govt. of A.P. Vs. Kollutla Obi Reddy.” 10. The Court is not required to take notice of all other decisions which have been pressed into service by the counsel representing the private respondent because in the opinion of this Court the recent decision in Banda Development Authority (supra) and the conclusion arrived at by the Apex Court in paragraph 39 states the legal position in toto. 11. If this is the factual and legal position then the question arises as to whether counsel for the petitioner can seriously contest the issue that the State has not come out with any clear and categorical affidavit in the manner in which the land had been alienated to a private company or entity and that too in the manner in which it has been done. 12. The issue is whether petitioners have a right to get possession of the land which was initially acquired by a valid procedure prescribed under the Land Acquisition Act way back in the year 1976-77 besides the stumbling blocks which have been noted in the earlier part of the order. Attention of the Court has been drawn to yet another proposition whether the writ application even otherwise can be maintained at such a belated stage on behalf of the petitioners. Attention of the Court has been drawn to yet another proposition whether the writ application even otherwise can be maintained at such a belated stage on behalf of the petitioners. The Court is tempted to extract certain portions of the decision rendered in the case of City and Industrial Development Corporation Vs. Dosu Aardeshir Bhiwandiwala and others, reported in (2009) 1 SCC 168 . The relevant paragraphs on which attention of this Court has been drawn are paragraphs 26 and 29 of the said decision which are quoted below:– “26. It is well settled and needs no restatement at our hands that under Article 226 of the Constitution, the jurisdiction of a High Court to issue appropriate writs particularly a writ of mandamus is highly discretionary. The relief cannot be claimed as of right. One of the grounds for refusing relief is that the person approaching the High Court is guilty of unexplained delay and the laches. Inordinate delay in moving the court for a writ is an adequate ground for refusing a writ. The principle is that the courts exercising public law jurisdiction do not encourage agitation of stale claims and exhuming matters where the rights of third parties may have accrued in the interregnum. 29. In our opinion, the High Court while exercising its extraordinary jurisdiction under Article 226 of the Constitution is duty bound to take all the relevant facts and circumstances into consideration and decide for itself even in the absence of proper affidavits from the State and its instrumentalities as to whether any case at all is made out requiring its interference on the basis of the material made available on record. (emphasis mine) There is nothing like issuing an ex parte writ of mandamus, order or direction in a public law remedy. Further while considering the validity of impugned action or inaction the Court will not consider itself restricted to the pleadings of the State but would be free to satisfy itself whether any case as such is made out by a person invoking its extraordinary jurisdiction under Article 226 of the Constitution.” 13. Further while considering the validity of impugned action or inaction the Court will not consider itself restricted to the pleadings of the State but would be free to satisfy itself whether any case as such is made out by a person invoking its extraordinary jurisdiction under Article 226 of the Constitution.” 13. If this be the position in law as well as the factual matrix, which has been enumerated above, there cannot be any mandamus or direction in favour of the petitioners to return the land to them as neither law is in their support nor the facts are made out for interference in the present writ application. In the opinion of this Court, it is fishing and roving kind of writ application which has been filed without the supporting legal matrix which may get them relief which they are looking for. 14. The writ has no merit. It is dismissed.