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2016 DIGILAW 1720 (HP)

Surinder v. State of H. P.

2016-08-20

RAJIV SHARMA, SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. 1. Under an award of 25.9.1985, the petitioner's land holding an area of three biswas stood acquired for construction of Bankufar-Hallaila road. On his land standing brought to acquisition, the petitioner received under protest, compensation comprised in a sum of Rs.416.19 paisa. The petitioner avers qua the purpose for which his land stood brought to acquisition standing un-utilized by the respondents-State for the relevant purpose. He also contends of his extantly holding its possession. 2. Respondents No. 1 to 3 contested the factum of the petitioner extantly holding possession of three biswas of land. Contrarily, they contend of theirs holding possession of land measuring three biswas as stood brought to acquisition for construction of Bankufar-Hallaila road. 3. The contentious factum of the petitioner vis-a-vis respondents Nos. 1 to 3 extantly holding possession of three biswas of land stands clinched qua the petitioner manifested by the factum of the respondents aforesaid in their reply acquiescing qua the petitioner raising a temporary shed thereupon whereupon its width stands narrowed. The factum aforesaid also stands manifested in the reply furnished by respondent No. 4. Moreover, a perusal of the unfoldments occurring in Annexure R-4/A holding an order rendered by the Sub Division Magistrate, Theog, directing the petitioner herein to remove the Dhara raised by him on three biswas of land also the demarcation report furnished by the demarcating officer depictive of a shed standing raised on a part of three biswas of land, all cumulatively hold concurrence with the acquiescence of respondents Nos. 1 to 3 qua the petitioner raising a temporary shed upon three biswas of land. Even if, the aforesaid manner of utilization of three biswas of land by the petitioner which stood brought to acquisition may not don the mantle qua his holding a lawful right to erect a dhara thereon, nonetheless, it is a marked portrayal qua the factum of his extantly holding possession thereof also is a evident display of its repulsing the contention of the respondents qua theirs extantly holding its possession. The land of the petitioner holding an area of three biswas was bought under acquisition in the year 1985. It stood brought under acquisition for construction of Bankufar-Hallaila road. The land of the petitioner holding an area of three biswas was bought under acquisition in the year 1985. It stood brought under acquisition for construction of Bankufar-Hallaila road. Its utilization within five years therefrom for the purpose aforesaid by the respondents-State would deprive the petitioner to claim a direction from this Court qua its being ordered to be de-acquired, preeminently when the mandate of sub-section (2) of Section 69 of the Land Acquisition Act, 1894 (hereinafter referred to as the 'Act of 1894'), provisions whereof stand extracted hereinafter, hold a contemplation of the relevant land as brought to acquisition on remaining unutilized for the purpose for which it stood acquired for a period of five years from the date of taking over of its possession, the landowner holding an empowerment to claim a relief qua its being ordered to be de-acquired also its possession standing restored to him despite an award standing pronounced also dehors his receiving the apposite compensation. Provisions of Section 69 of the Act of 1894 read as under:- “69 Returns of Unutilized Land: (1) The land acquired under this Act shall not be transferred to any other purpose except for a public purpose and after obtaining the prior approval of the Appropriate Government, and any change in purpose made in violation of this provision shall be void and shall render such land and structures attached to it liable to be reverted to the landowner; (2) When any land or part thereof, acquired under this Act remains unutilized for a period of five years from the date of taking over the possession, the same shall return to the land owner by reversion; (3) The Appropriate Government shall return the unutilized land or part thereof, as the case may be, to the original owner of the land from whom it was acquired subject to the refund of one fourth of the amount of compensation paid to him along with the interest on such amount at such rate, as may be specified by the Appropriate Government, from the date of payment of compensation to him till the refund of such amount; (4) The person to whom the land is returned being the owner of the land shall be entitled to all such title and rights in relation to such land from which he has been divested on the acquisition of such land.” 4. For rendering a determination qua whether the respondents-State did within five years of bringing to acquisition the land of the petitioner utilize it for construction of Bankufar-Hallaila road, the purpose whereof it stood acquired, an allusion to the reply furnished by the respondents-State to the writ petition is imperative wherein they unravel the factum of the relevant land standing utilized as a point for turning of vehicles. The aforesaid unravelment occuring in the reply of the respondents- State is a stark display of the relevant piece of land standing not utilized for the purpose for which it stood acquired rather it standing utilized for a purpose other than for which it was brought to acquisition. Furthermore, with Annexure R-1, as stand appended to the reply furnished to the writ petition by the respondents-State while therein embodying a communication addressed to the father of the petitioner requesting him to remove the unauthorised dhara raised on the relevant site, its constituting an impediment to the smooth plying of vehicles on the road though hence tacitly conceals the factum of it standing not utilized for construction of Bankufar-Hallaila Road yet with the captioned subject thereof holding a revelation of the father of the petitioner in the manner displayed therein utilizing three biswas of land occurring on Bhawari link road is a marked personification of the respondent not utilizing the relevant tract of land for construction of Bankufar-Hallaila road, rather theirs propagating qua theirs holding a right qua its user, its assumingly falling within the domain of Bhawari link road. The effect of the aforesaid pronouncement occurring in the aforesaid annexure is a display of the respondent infracting the mandate of sub-section (1) to Section 69 of the Act of 1894 wherein an interdiction stands constituted against theirs utilizing the land brought to acquisition for a purpose other than for which it stood acquired also its holding a contemplation qua any deviation by them from its notified user besides its extant user while being contradistinctive vis-a-vis the purpose for which it stood acquired yet holding an aura of legal validation only when preceding thereto an apposite approval stands provenly accorded by the government, whereas, evidently there occurring here-before no prior approval of the appropriate government whereupon the respondents held an empowerment to deviate from the notified user of a tract of three biswas of land, as a corollary, its extant user by the respondents concerned when is openly contradistinctive vis-a-vis its notified user renders the consequence of the interdiction cast in sub-section (1) to Section 69 of the Act of 1894 to befall vis-a-vis the respondents concerned inasmuch as the relevant invalid change of its extant user by them being statutorily construable to be void rendering open the occurrence hereat of the further statutory sequel embodied in sub-section (2) of Section 69 of the Act of 1894 qua possession of the relevant tract of three biswas of land reverting to the land owner. The statutory consequence embodied in sub-section (2) to Section 69 of the Act of 1894 entailing the respondents concerned to return it to the land owner is supplemental to the provisions engrafted in sub-section (1) thereto also it cannot be read in segregation from the earlier sub-section given the workability of sub-section (2) arising on satiation of the statutory condition enjoined therein qua the relevant land on standing evidently unutilized for a period of five years from the date of its possession standing taken whereupon the respondents concerned stand enjoined to return it to the landowner. Prominently, when it per se holds a signification qua utilization of the relevant tract of land by the respondents concerned, within the period enumerated therein holding a congruity with the purpose for which it stood acquired. Prominently, when it per se holds a signification qua utilization of the relevant tract of land by the respondents concerned, within the period enumerated therein holding a congruity with the purpose for which it stood acquired. Consequently, even when the respondents-State extantly as portrayed in their reply are utilizing it as a turning point for vehicles, as also when Annexure R-1, holds a display qua its purportedly falling within the domain of Bhawari link road, rendering its extant user by the respondents-State to constitute its standing not utilized for construction of Bankufar-Hallaila road, for construction whereof its acquistion was notified whereupon its extant user besides utilization by the respondents-State is construable for the reasons aforestated to be falling within the prohibition engrafted in sub-section (1) to Section 69 of the Act of 1894. In aftermath, its utilization, if any, by the respondents-State within a period of five years from the date of theirs taking its possession even if assumingly they hold its possession would not hence give any capitalization to the respondents-State to contend of the mandate of sub-section (2) to Section 69 of the Act of 1894 being unavailable to the petitioner, preeminently when the manner of utilization of the relevant tract of land by the respondents-State is to hold synchronity besides congruity vis-a-vis the purpose for which it stood notified to face acquisition, whereas, for the reasons aforesaid, the respondents-State begetting infraction of the mandate of sub-section (1) of Section 69 of the Act of 1894 by putting it to use or utilizing it in digression from the initial notified purpose qua its user, hence renders the consequences thereto enunciated both in sub-sections (1) and (2) of Section 69 of the Act of 1894 to be attractable against them, whereupon in consonance with the apposite infringements made by them of the provisions of sub-sections (1) and (2) of Section 69 of the Act of 1894 they stand foisted with the corresponding statutory consequence qua theirs being amenable to return the relevant land to the landowner. However, for facilitating the aforesaid purpose the ordering by this Court qua de-acquisition of the land of the petitioner is peremptory. 5. However, for facilitating the aforesaid purpose the ordering by this Court qua de-acquisition of the land of the petitioner is peremptory. 5. Further, respondent No.4 contested the according of relief to the petitioner on the mere facet of his enjoying the relevant tract of land as a path to access his land also he contests the according of the relief to the petitioner on the anchorage of the petitioner by raising a dhara thereupon his narrowing the width of its relevant expanse also used as a turning point for vehicles. The aforesaid contention reared by respondent No.4 stands trounced by the trite factum of this Court holding on the anvil of its lending interpretation to the afore referred sub-sections to Section 69 of the Act of 1894 also its blending its interpretation thereto with the factual scenario existing hereat whereupon it holds of the relevant sequeling consequence ensuing from the apposite infringement by the respondents-State of the relevant mandate constituted therein facilitating him to stake a right for reclamation of the relevant land from the respondents-State. 6. Be that as it may, with this Court forming a conclusion qua the petitioner standing statutorily empowered to hold a right qua a direction being rendered upon the respondents-State to retrieve the acquired land to him in sequel whereof this Court would render a direction for de-acquisition of the relevant tract of three biswas of land, direction whereof would not hence also fetter this Court to bring into play the provisions of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as the “Act of 2013”) which stand extracted hereinafter, for inconsonance with the provisions of sub-section (2) thereof, provisions whereof for reasons hereinafter stated hold play hereat, this Court ordering the appropriate government to initiate proceedings for its acquisition afresh in accordance with the provisions of the Act of 2013. Section 24 of the Act of 2013 reads as under: “24. Section 24 of the Act of 2013 reads as under: “24. Land acquisition process under Act No. 1 of 1894 shall be deemed to have lapsed in certain cases:- (1) Not withstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894):- (a) where no award under section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; (b) where as award under said section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed. (2) Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894), where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act: Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act.” 7. The reason for attracting the proviso engrafted in Section 24 of the Act of 2013, whereupon this Court would stand constrained to order the appropriate Government to initiate under the Act of 2013, proceedings afresh for its acquisition stands embedded in the factum of the award qua the tract of three biswas of land standing pronounced in the year 1985 hence begetting satiation of the condition precedent for its application hereat prominently with the award hereat standing evidently pronounced more than five years hitherto vis-a-vis the coming into force of the Act of 2013, whereupon its provisions stand attracted hereat. However the further condition in conjunction therewith warranting satiation rests upon physical possession of the land also evidently not standing taken by the appropriate government. However the further condition in conjunction therewith warranting satiation rests upon physical possession of the land also evidently not standing taken by the appropriate government. This Court has pronounced of the petitioner holding possession of a portion of a tract of three biswas of land whereupon an inference stands erected of the respondents-State not extantly holding possession of the entire tract of three biswas of land. Even, if a portion other than a portion of a tract of three biswas whereupon a dhara stands erected by the father of the petitioner, stands utilized for turning of vehicles also when it as portrayed by Annexure R-1 falls within the expanse of Bhawari link road would yet not constitute the aforesaid manner of its possession, if any, extantly held by the respondents-State even if it stands taken in pursuance to the rendition of the award pronounced qua it by the Collector concerned, to hold any tinge qua theirs holding its lawful physical possession, holding of lawful possession whereof is imperative for rendering unworkable hereat qua the petitioner the conjunctive condition “but the physical possession of land has not been taken” embodied in sub-section (2) to Section 24 of the Act of 2013, whereupon hence the petitioner stands entitled to its benefit. The conjoint conditions precedent engrafted in sub-section (2) to Section 24 of the Act of 2013 for hence it to acquire workability is of satiation standing begotten qua the occurrence of the award of the Collector bringing to acquisition a tract of 3 biswas of land erupting more-than five years hitherto vis-a-vis the coming into force of the Act of 2013, initial condition whereof for reasons aforereferred stands satiated also of satiation standing begotten qua the conjunctive condition qua the appropriate government not extantly in sequel thereto holding its physical possession, hence both conditions precedent for reasons aforestated standing satiated whereupon the inevitable consequence is of this Court ordering for subjecting to acquisition afresh under the Act of 2013, the land of the petitioner. Consequence aforesaid ensues from the signification aforesaid which stands foisted by this Court to the phrase “but the physical possession of land has not been taken” as occurs therein. Consequence aforesaid ensues from the signification aforesaid which stands foisted by this Court to the phrase “but the physical possession of land has not been taken” as occurs therein. The aforesaid parlance borne by the aforereferred phrase upsurges from its reading in coalescence with the provisions of sub-sections (1) and (2) of Section 69 of the Act of 1894, provisions whereof when read in entwinement with the factual scenario hereat awakens a firm conclusion from this Court qua the consequences of the statutory prohibitions cast thereunder vis-a-vis the appropriate government hence standing attracted qua the petitioner whereupon this Court holds qua his standing entitled to stake a claim against the respondents-State for reclamation of his land brought to acquisition, in sequel, wherefrom this Court is constrained to draw a conclusion for directing the respondents-state to de-acquire his land. In aftermath with possession, if any, by the appropriate government of the relevant tract of land hence falling within the mischief of sub-sections (1) and (2) of Section 69 of the Act of 1894, would not render it to be amenable to a construction of the appropriate government hence holding its lawful possession, construction whereof would open an inference of its physical possession, if any, extantly held by the respondents-State not excluding qua the petitioner the workability of the parlance borne by the phrase “but the physical possession of the land has not been taken” preeminently, when for reasons aforestated, the prohibitions cast in sub-sections (1) and (2) of Section 69 of the Act of 1894 stand infringed, infringement whereof beget qua the petitioner, the relevant statutory benefit of his standing entitled to seek its reclamation from the respondents concerned, benefits whereof are enjoined to be afforded to him in prompt sequel to the apposite infringement standing begotten by the respondents concerned, hence, given the aforesaid statutory benefits standing invested in him immediately on satiation of the mandate of sub-sections (1) and (2) of Section 69 of the Act standing begotten inasmuch as within five years elapsing from 1985 i.e. in the year 1990, renders the extant holding of possession by the respondents concerned of any part of the relevant tract of three biswas of land being construable to be theirs holding it unlawfully also contrarily the erection of dhara, if any, on the relevant tract of three biswas of land by the petitioner being an assertion with promptitude by him of the statutory benefits ensuing in his favour on the appropriate government begetting infraction of mandate of sub-sections (1) and (2) of Section 69 of the Act of 1894. Unless the aforesaid parlance stand attributed to the phrase “but the physical possession of the land has not been taken” it would beget the illfate of its eroding the play of sub-sections (1) and (2) of Section 69 of the Act of 1894 whereupon a dichotomous situation would arise of conflict occurring inter se the apposite provisions embodied therein vis-a-vis the provisions of sub-section (2) of Section 24 of the Act of 2013, upsurging whereof would lead to a legal mishap of the salutary purpose of sub-section (2) of Section 24 of the Act of 2013 standing defeated besides its tantamounting to a untenable postulation of their impact remaining unattended by the legislature. Also the receipt of compensation by the petitioner qua his land brought to acquisition is inconsequential for rendering unworkable the provisions of sub-section (2) of Section 24 of the Act of 2013, as the said receipt of compensation though constituted therein to bar this Court to order for launching of acquisition proceedings afresh under the Act of 2013 qua the relevant tract of three biswas of land, is yet constituted therein as a condition in the alternative to the preceding condition alluded to herein-above, preceding condition whereof when for reasons aforesaid stands satiated is sufficient to bring its relevant provisions into play, dehors the alternative condition remaining un-satiated. 8. For the foregoing reasons, the respondents-State is directed to de-acquire the tract of three biswas whereafter they are directed to consider to issue a fresh notification for acquisition of the land of the petitioner herein under the provisions of the Act of 2013. Accordingly, the instant petition stands disposed of.