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2013 DIGILAW 458 (UTT)

BASHIR AHMED v. STATE OF UTTARAKHAND

2013-07-10

B.S.Verma

body2013
JUDGMENT Hon’ble B.S.Verma, J. 1. Heard Mr. Bhupesh Kandpal, learned counsel for the petitioners, Mr. I.P. Kohli, Standing Counsel for the State and Mr. Lalit Samant and Mr. Shobhit Saharia, learned counsels for the M.D.D.A. 2. Since the controversy involved in all these writ petitions is same, therefore, for the sake of convenience, all the writ petitions are being decided by this common judgment and order. 3. By means of these writ petitions, the petitioners have sought writ in the nature of certiorari quashing the Notification dated 12.6.2001. The petitioners have also mandamus commanding the respondent authority(s) to return back the land of the petitioner after taking compensation amount from the petitioners. 4. In writ petition no.30/2012, the petitioners have also sought mandamus commanding the respondent authority(s) to directing the respondent authority(s) not to dispossess the petitioner from the land bearing Khasra no.202 m measuring 0.1420 Hectare (new Khasra no.483) and Khasra no.538/1 (new Khasra no.549 Kha and 550 Ka) measuring 0.3400 Hectare situated in village Mazra Tehsil Sadar District Dehradun. In writ petition no.29/2012, the petitioners have also sought mandamus directing the respondent authority(s) not to dispossess the petitioner from the land bearing Khasra no.184 m measuring 0.240 (new Khasra no.488) Hectare situated in village Mazra Tehsil Sadar District Dehradun. In writ petition no.28/2012, the petitioners have also sought mandamus directing the respondent authority(s) not to dispossess the petitioner from the land bearing Khasra no.491D measuring 0.3160 Hectare situated in village Mazra Tehsil Sadar District Dehradun. In writ petition no.31/2012, the petitioners have also sought mandamus directing the respondent authority(s) not to dispossess the petitioner from the land bearing Khasra no.538 m measuring 0.592 hectare and Khasra no.167 measuring 1.72 acre situated in village Mazra Tehsil Sadar District Dehradun. 5. For facility, the facts of Writ Petition No.30 of 2012 (M/S) are being taken into consideration and the said case has also been made the leading case. 6. Brief facts, leading to the filing of these writ petitions are, that State of Uttarakhand issued a Notification dated 12.6.2001 under Section 4(1) of the Land Acquisition Act 1894 (hereinafter referred to as the Act) alongwith the provisions of Section 17(4) of the Act to acquire the land mentioned in the schedule annexed to the Notification for the public purpose namely for the construction of Bus Terminal by Mussorrie Dehradun Development Authority (hereinafter referred to as the M.D.D.A.) in District Dehradun. Thereafter, in continuation to the notification dated 12.6.2001, a notification u/s 6 of the Act was issued on 28.2.2002 and possession was taken. According to the petitioners, there was no occasion to invoke the urgency clause as there was no urgency in the matter. Provision of Section 5(a) has wrongly been dispensed with. 7. A total land of 13.291 hectare was acquired by the State of Uttarakhand for construction of Bus Terminal but out of this only 4.25 hectare land was used for the purpose and remaining 9.199 hectare land is still lying vacant/unutilized and the petitioners are in actual physical possession over the same. Out of the remaining land i.e. 9.199 hectare, 2.238 hectare was further allotted to the Uttarakhand Transport Department for construction of workshop but later on the said allotment was cancelled. 8. Counter affidavit has been filed by the respondents in which stand has been taken that land was acquired for public purpose and after issuance of this Notification possession was handed over and the land has been vested with the State u/s 16 of the Act and the petitioners have received compensation of the acquired land. This fact is also not disputed by the petitioners. It is alleged by the respondents that the petitioners have filed these writ petitions by concealing the material fact. It is nowhere pleaded by them in the writ petitions that they have received compensation. 9. I have heard learned counsel for the parties and perused material available on record. 10. Learned counsel for the petitioners has contended that it is settled law that the land acquired by invoking Section 17 of the Act (urgency clause) can solely be used for the purpose as stated in the Notification. However, in the case at hand, the remaining land is being utilized for other purposes. 11. Learned counsel for the petitioners has further contended that the land in the other village namely Raipur, Brahamwala, Dhorankhas, Tarlanangal, Mazra and Kargigrant was acquired for Greater Doon by the M.D.D.A. but the same was denotified u/s 48 of the Act. It is contended that after the land has been denotified u/s 48 of the Act, the same should be returned to the petitioners. 12. This fact is not disputed that the land was acquired by the State Government after issuance of Notification. It is contended that after the land has been denotified u/s 48 of the Act, the same should be returned to the petitioners. 12. This fact is not disputed that the land was acquired by the State Government after issuance of Notification. This fact is also not disputed that the land has now been vested in the State and the compensation has been received by the petitioners. 13. In support of his arguments, learned counsel for the petitioners has placed reliance upon a judgment of Hon’ble Apex Court in case of Tukaram Kana Joshi and ors. through Power of Attorney Holder vs. M.I.D.C. and ors. reported in AIR 2013 SC 565 , (2013) 1 SCC 353 . 14. I have gone through the above cited case law. The facts of above case are altogether different from the present case. In the abovementioned case, after Notification u/s 4 of the Act, no proceedings under section 6 was initiated and thereafter after lapse of almost 15 years notification u/s 4 was again issued but the same could not be proceeded further, as declaration u/s 6 of the act could not be made. In those circumstances, the Hon’ble Supreme Court had directed the authorities to re-notify the land u/s 4 of the act and to complete the entire acquisition proceedings expeditiously and to pay compensation to the claimants accordingly. Therefore, it is of no help to the petitioners. 15. Learned counsel for the respondents has contended that the petitioners have already received compensation in lieu of land acquired. Now, they have no right to file the present writ petitions after a lapse of more than 10 years. 16. In reply, the counsel for the petitioners has again relied upon the said judgment of Tukaram Kana Joshi (supra) in order to explain the delay in filing the writ petition, as agitated by the counsel appearing on behalf of the respondent, but the same would be of no help to the petitioners as in the above mentioned case, the delay was condoned by the Hon’ble Apex Court because the acquisition proceedings were never completed and no compensation was paid to the claimants but the state Government had already taken the possession of the land in question without following the due process of law. However, in the instant case, acquisition proceedings were duly completed and adequate compensation was paid to the petitioners according to the market value as on the date of notification. 17. It is also the contention of the counsel for the petitioners that when a piece of land has been acquired for a specific public purpose by invoking the urgency clause, it cannot, thereafter, be used for any other purpose and the utilization of the acquired land for any other purpose is not in consonance with the principles of law. 18. Per contra, learned counsel for the respondents has contended that the land in question is being utilized for other public purposes and it is a settled preposition of law that the land acquired for one public purpose can be utilized for any other public purposes. 19. The learned counsel for the respondent has placed reliance on the judgment of Gulam Mustafa and Ors. vs. The State of Maharashtra and Ors., AIR 1977 SC 448 , wherein the Hon’ble Supreme Court has inter-alia held as under:- “5. … Apart from the fact that a housing colony is a public necessity, once the original acquisition is valid and titled has vested in the Municipality, how it uses the excess land is no concern of the original owner and cannot be the basis of for in validating the acquisition. There is no principle of law by which a valid compulsory acquisition stands voided because long later the requiring authority diverts it to a public purpose other than the one stated in the Section 5(3) declaration.” 20. In C. Padma and Ors. v. Dy. Secretary to the Government of T.N. and Ors., (1997) 2 SCC 627 , it was held that acquired land having vested in the State and the compensation having paid to the claimant, he was not entitled to restitution of possession on the ground that either original public purpose had ceased to be in operation or the land could not be used for other purpose. 21. It is also the case of the petitioners that the excess land which was acquired by the authority for construction of Inter State Bus Terminal be re-assigned to the petitioners, as they are in actual physical possession of the land in question and the purpose for which the land was acquired has already been met out. 21. It is also the case of the petitioners that the excess land which was acquired by the authority for construction of Inter State Bus Terminal be re-assigned to the petitioners, as they are in actual physical possession of the land in question and the purpose for which the land was acquired has already been met out. However, in the light of the judgment of the Apex Court in Govt. of A.P. and Anr. Vs. Syed Akbar, AIR 2005 SC 492 , it is now a settled preposition of law that the Government cannot withdraw from acquisition or re-convey the said land to the erstwhile owners as the possession of land has already been taken. It has been held inter alia in para 10, 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. The position of law is well settled. In State of Kerala and Ors. Vs. M. Bhaskaran Pillai & Anr. [ (1997) 5 SCC 432 ], para 4 of the said judgment reads:- “4. 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, it 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. 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 not 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 utilised 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 a higher value.” 22. In para-14 of the said judgment, the Supreme Court has further held as follows:- “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 re-conveyed to the original owner merely on the basis of an executive order.” 23. In Northern Indian Glass Industries vs. Jaswant Singh and Ors., AIR 2003 SC 234 , the Hon’ble Supreme Court has held as under:- “9. …In our view, the High Court was also not right in ordering restoration of land to the respondents on the ground that the land acquired was not used for which it had been acquired. It is well-settled position in law that after passing the award and taking possession under Section 16 of the Act, the acquired land vests with the Government free from all encumbrances. It is well-settled position in law that after passing the award and taking possession under Section 16 of the Act, the acquired land vests with the Government free from all encumbrances. Even if the land is not used for the purpose for which it is acquired, the land owner does not get any right to ask for retesting the land in him and to ask for restitution of the possession…” 24. It has further been held in para 12 as under : “12. If the land was not used for the purpose for which it was acquired, it was open to the State Government to take action but that did not confer any right on the respondents to ask for restitution of the land. As already noticed, the State Government in this regard has already initiated proceedings for resumption of the land. In our view, there arises no question of any unjust enrichment to the appellant company.” 25. In Chandragauda Ramgonda Patil and Anr. V. State of Maharashtra and Ors., (1996) 6 SCC 405 , Hon’ble Supreme Court has stated that the acquired land remaining unutilized was not intended, to be restituted to the erstwhile owner to whom adequate compensation was paid according to the market value as on the date of notification. 26. In view of the above well-settled proposition of law, this court is of the firm opinion that the petitioners have no locus to challenge the acquisition proceedings when the acquisition has been carried out in consonance with the provisions of the Land Acquisition Act, 1894 and proper compensation has been paid to the petitioners according to the market value of the land on the date of notification, more so, because the petitioners have accepted the amount of compensation without objecting to it. 27. Moreover, the land, once acquired, vests in the acquiring authority free from all encumbrances and the erstwhile owners of the land so acquired cannot approach the court of law for re-conveyance of the said land in any manner. The only way to use the excess land is to utilize the land for some other public purpose or to dispose of the said excess land by the way of public auction. The erstwhile owners cannot claim for the re assignment of the excess land as a matter of right. The only way to use the excess land is to utilize the land for some other public purpose or to dispose of the said excess land by the way of public auction. The erstwhile owners cannot claim for the re assignment of the excess land as a matter of right. The only option that they have is to take part in the public auction, if the acquiring authority decides to dispose of the excess land in that manner. 28. Furthermore, there is a delay of more than 10 years in the filing of the present writ petitions from the date of completion of the acquisition proceedings. The petitioners have not been able to explain the delay and laches in filing of the writ petition to the satisfaction of this court. These writ petitions are liable to be dismissed on the ground of delay and laches also. 29. In view of the discussions made in foregoing paragraphs, this court does not find any merit in these writ petitions. The writ petitions are devoid of merit and are liable to be dismissed. Accordingly the same are dismissed.