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2013 DIGILAW 199 (PNJ)

Neelam Gulati v. State of Haryana

2013-02-15

AJAY K.MITTAL, GURMEET SINGH SANDHAWALIA

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JUDGMENT Mr. Ajay Kumar Mittal, J.: - Through the present petition filed under Article 226 of the Constitution of India, the petitioners seek quashing of notifications issued under Sections 4 and 6 read with Section 17 of the Land Acquisition Act, 1894 (in short, “the Act”) dated dated 27.9.2007 and 27.12.2007 Annexures P.2 and P.3 respectively and award dated 10.4.2008, Annexure P.4. Prayer has also been made for directing the respondents to release their land on the ground that the land has not been utilised even after the expiry of about six years for the public purpose for which it was acquired i.e. for constructing Storm Water Disposal at Rahad Johar, Rohtak. 2. A few facts relevant for adjudication of the controversy involved, as narrated in the petition, may be noticed. The petitioners purchased certain land falling in Khasra No.7933 within the municipal limits of District Rohtak and registered sale deeds were executed in their favour. Some of the petitioners even constructed houses on their respective plots. Vide notification dated 24.10.2006, Annexure P.1, the State Government declared certain khasra numbers of Mauja, Rohtak, Hadbast No.74, Tehsil and District Rohtak to be unbuilt area. The land of the petitioners falls in Khasra No.7933 adjoining the declared unbuilt area. On 27.9.2007, the State Government issued notification, Annexure P.2 under Section 4 read with Section 17 of the Act for acquisition of the land including Khasra No.7933 for the public purpose i.e. for constructing Storm Water Disposal at Rahad Johar, Rohtak. It was mentioned in the notification that as per Section 17(4) of the Act, provisions of Section 5A of the Act shall not apply to this acquisition. On 27.12.2007, the respondents issued notification, Annexure P.3 under Section 6 read with Section 17 of the Act. Thereafter, award dated 10.4.2008, Annexure P.4 was passed. Grievance of the petitioners is that inspite of the expiry of so much time, the land has not been utilized by the Government for the public purpose for which it was acquired. The petitioners served legal notice dated 22.10.2012, Annexure P.7 for release of their land. Having received no response, they have filed the present petition. 3. Learned counsel for the petitioners was unable to dispute that the petitioners had received the compensation. It was also not disputed that the possession had also been taken from the petitioners by the State. The petitioners served legal notice dated 22.10.2012, Annexure P.7 for release of their land. Having received no response, they have filed the present petition. 3. Learned counsel for the petitioners was unable to dispute that the petitioners had received the compensation. It was also not disputed that the possession had also been taken from the petitioners by the State. In such a situation, under Section 16 of the Act, the land in dispute had vested in the State free from all encumbrances. Section 16 of the Act reads as under:- “16. Power to take possession.- When the Collector has made an award under section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government, free from all encumbrances.” 4. The Hon’ble Supreme Court in Govt. of A.P. and another v. Syed Akbar, (2005) 1 SCC 558 , while allowing the appeal in a case where the Division Bench of the Andhra Pradesh High Court had upheld the order of the learned Single Judge, directing the authorities to hand over the unused portion of the land to the petitioners by collecting the amount of compensation already paid with interest @ 12% per annum and after noticing the standing orders, held as under:- “10. It is neither debated nor disputed as regards the valid acquisition of the land in question under the provisions of the Land Acquisition Act and the possession of the land had been taken. By virtue of Section 16 of the Land Acquisition Act, the acquired land has vested absolutely in the Government free from all encumbrances. Under Section 48 of the Land Acquisition Act, Government could withdraw from the acquisition of any land of which possession has not been taken. In the instant case, even under Section 48, the Government could not withdraw from acquisition or to re-convey the said land to the respondent as the possession of the land had already been taken. The position of law is well settled. xx xx xx xx xx xx xx xx 14. In the instant case, even under Section 48, the Government could not withdraw from acquisition or to re-convey the said land to the respondent as the possession of the land had already been taken. The position of law is well settled. xx xx xx xx xx xx xx xx 14. From the position of law made clear in the aforementioned decisions, it follows that (1) under Section 16 of the Land Acquisition Act, the land acquired vests in the Government absolutely free from all encumbrances; (2) the land acquired for a public purpose could be utilized for any other public purpose; and (3) the acquired land which is vested in the Government free from all encumbrances cannot be re-assigned or reconveyed to the original owner merely on the basis of an executive order.” 5. In National Thermal Power Corporation Limited v. Mahesh Dutta and others, [2009(4) Law Herald (SC) 2585] : (2009) 8 SCC 339 , it was held that if possession of the land had been taken over in respect of which notification had already been issued, the State would be divested of its power to withdraw from the acquisition in terms of Section 48 of the Act. 6. In view of the above, challenge to the acquisition on the ground that the purpose for which it was acquired was not being carried out, would not justify the release of the land. In such a situation, the relief claimed in this writ petition cannot be allowed. 7. Accordingly, the writ petition is dismissed.