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2016 DIGILAW 528 (UTT)

Bharat Heavy Electricals Limited v. Bablu

2016-08-30

SUDHANSHU DHULIA

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JUDGMENT : Sudhanshu Dhulia, J. The petitioner is a company owned and controlled by the Central Government. It has challenged the order dated 27.11.2015, Annexure No. 6 to the writ petition, before this Court which has been passed by the Additional Commissioner, Garhwal Mandal, Pauri. Apparently, the impugned order has been passed under the revisional powers of the revenue authority but the net result of the said order is that the land which was acquired way back in the year 1962 by the erstwhile State of Uttar Pradesh for establishment of Bharat Heavy Electricals Limited i.e. the petitioner company has been reverted back to the legal heirs of the original tenure holders of the land. This could not be done by the authority which has passed the impugned order, contends Shri V.K. Kohli, counsel for the petitioner. Another contention of the petitioner before this Court is that they were never heard either by the Special Land Acquisition Officer or by the Additional Commissioner. 2. The fact of the case is that the private respondent before this Court moved an application before the Special Land Acquisition Officer, Haridwar stating that the land Khasra No. 157 to 162, which belongs to the ancestors of the private respondent was acquired way back in the year 1962 for establishment of the petitioner company but thereafter vide Government Order dated 2.3.1971, the erstwhile State of Uttar Pradesh took a decision that the land which is not being used by the Bharat Heavy Electricals Limited ought to be returned to the original tenure holders. Relying upon the said Government Order dated 2.3.1971, a prayer was made that the said land be returned to the private respondent. The said application was dismissed by the Special Land Acquisition Officer vide order dated 02.02.2007 on the ground that the land once acquired cannot be returned to the tenure holder. Aggrieved, the private respondent filed a revision before the Additional Commissioner, Garhwal Mandal, which was allowed by the Additional Commissioner vide order dated 27.11.2015 after taking a view that the Special Land Acquisition Officer has not considered the Government Order dated 2.3.1971 according to which the said land was liable to be returned to the private respondent. It is this order which has been challenged before this Court. 3. Learned Senior Counsel for the petitioner, Mr. It is this order which has been challenged before this Court. 3. Learned Senior Counsel for the petitioner, Mr. V.K. Kohli, states that the petitioner was not heard either by the Special Land Acquisition Officer or by the Additional Commissioner, Garhwal Mandal, Pauri. Moreover, the claim of the private respondent was rejected by the Special Land Acquisition Officer way back in the year 2007 vide its order dated 02.02.2007. Revision was filed after more than eight years, without there being any explanation as to the delay. According to the learned Senior Counsel for the petitioner, it has not been stated by the revisional authority as to under which power he has exercised the revisional power, nor has he given any finding as to whether petitioner is liable to be heard or not. 4. Petitioner has relied upon a Division Bench judgment of this Court passed in Writ Petition No. 77 of 2011 (PIL), Kishan Sangharsh Samitee and another v. Union of India and others, wherein a Division Bench, relying upon catena of judgments passed by Hon’ble Apex Court on the subject, observed as under:- “5. In the case of (1997) 2 SCC 627 (C. Padma and others vs. Dy. Secretary to the Govt. of T.N. and others), the Hon’ble Apex Court has categorically held that the claimants are not entitled to seek 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 any other purpose. So, be it the case where the lands no longer can be utilized by the B.H.E.L. or a case where the land has been made over to other agencies, the petitioner, who claims to be the previous owner of the land prior to the acquisition, cannot have a legal right to get back the land also we are unimpressed by the relief sought to quash the assignment of the land which, according to the B.H.E.L., was made over to various agencies either by way of land being given back to the Government or to various agencies as per the Government Orders.” 5. Thereafter, a learned Single Judge of this Court in the case of Bashir Ahmed and other Vs. Thereafter, a learned Single Judge of this Court in the case of Bashir Ahmed and other Vs. State of Uttarakhand and others reported in 2013 (2) U.D. 168 , relating to similar claim as that of the present private respondent, dismissed the writ petition holding that the land once acquired vests in the acquiring authority free from all encumbrances and the erstwhile owners of the land whose land was so acquired cannot approach the court of law for re-conveyance of the said land in any manner. The erstwhile owners cannot claim for the reassignment 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. 6. Similar issue again came for consideration before this Court in Writ Petition (M/S) Nos. 1047 of 2008 & 244 of 2009 and the learned Single Judge of this Court relying upon the earlier decisions of this Court on the subject, dismissed the aforesaid writ petitions. 7. The Government Order dated 02.03.1971 passed by the erstwhile Government of U.P., only gives a statement that this may be done. Nothing further seems to have been done after that, at least none which has been shown to this Court. In any case, why has the private respondent raked up this issue after about 37 years has not been disclosed. Moreover, when his application for restitution was rejected by the Special Land Acquisition Officer as far back as on 02.02.2007, what held him back, for nearly eight years, before he challenged the same before the Additional Commissioner, Garhwal Division in the year 2015 has not been disclosed. The impugned order also does not disclose as to under which provisions of law the revisional powers are being exercised and that too belatedly. In view of this Court, therefore, there is an absolute illegality in the procedure adopted by the Additional Commissioner, Garhwal Mandal, Pauri while allowing the revision filed by the private respondent. Apart from the order being in violation of the orders of this Court, referred above. The writ petition hence succeeds and the Order dated 27.11.2015 passed by the Additional Commissioner is hereby quashed. 8. Apart from the order being in violation of the orders of this Court, referred above. The writ petition hence succeeds and the Order dated 27.11.2015 passed by the Additional Commissioner is hereby quashed. 8. One of the contentions of the petitioner, at this stage, is that the land in dispute was taken away by the State Government and has been given to the State Industrial Development Corporation of Uttarakhand Limited (SIDCUL), Haridwar. 9. The SIDCUL, however, in its counter affidavit has not clearly stated as to whether this particular piece of land, which is the subject matter of the present writ petition, has been given to them by the State Government. Learned counsel for the SIDCUL, Mr. Vipul Sharma, however, stated that he has got clear instructions that the part of land which is presently in dispute has never been given to the SIDCUL. 10. It is made clear that in case the land in question has not formally been taken away by the State Government, it is well within its right to take away its possession in accordance with law. Since the land in dispute was acquired for public purposes, it is made clear that the same shall be utilized only for public purposes alone. 11. Considering the fact that the Additional Commissioner has looked into a highly belated matter without giving any finding on the limitation or the jurisdiction, and the manner in which the order dated 27.11.2015 has been passed, the Chief Secretary, State of Uttarakhand is directed to constitute a preliminary enquiry into this matter and act further if materials are revealed for a full fledged enquiry. 12. The Registrar General of this Court is hereby directed to communicate this order to the Chief Secretary, Government of Uttarakhand for onward compliance.