Research › Search › Judgment

Himachal Pradesh High Court · body

2018 DIGILAW 1543 (HP)

Ravinder Kumar v. State Of H P

2018-08-23

SURESHWAR THAKUR

body2018
JUDGMENT Sureshwar Thakur, J. - The instant writ petition has been received by this Court, after remand, visvis it, under orders pronounced by the Principal Division Bench, of, this Court, upon LPA No. 275 of 2011. 2. A coordinate Bench of this Court, had, pronounced a direction, upon, the contesting respondents, to, initiate statutory proceedings, for, bringing to acquisition, the, property, embodied in the lis at hand. However, subsequent thereto, the aggrieved respondent instituted a review petition, before the Coordinate Bench of this Court, yet the latter proceeded to decline relief therein, visvis, the aggrieved respondents. Thereafter, the aggrieved respondents, instituted LPA bearing No. 275 of 2011, before the Principal Division Bench of this Court, wherein, the verdict recorded by a Coordinate Bench of this Court, on 27.4.2007, upon, the instant writ petition, and, also the disaffirmative orders pronounced, upon the review petition, preferredherebefore, by the aggrieved respondents, were both hence cast a conjoint challenge. Upon the aforesaid LPA, the Principal Division Bench of this Court, rather pronounced a verdict, disconcurrent, visavis, the verdict pronounced by the coordinate Bench of this Court, and, thereuner, it, remitted the matter, to the learned Single Judge concerned, for his proceeding, to, in view of the directions meted therein, rather make a fresh decision, upon, the extant writ petition. 3. The learned counsel appearing, for the petitioner has contended, that, since the contesting respondents, in their reply, meted to the extant petition, are hence rearing grounds, qua theirs acquiring title, by adverse possession, visvis the property, in the lis, at hand, (a) hence perse, thereupon, the, reflections borne in Annexure P1, and, in Annexure P2, qua the Education department of the State of H.P., rather holding possession of the property, as embodied in the lis, hence acquiring conclusivity, (b) also he contends that ipsofacto, on anvil thereof, the echoings borne in the demarcation report, initially appended with the extant petition, and, also all the unfoldments, occurring in the demarcation report, furnished to this Court, in pursuance, to, orders, recorded, on 31.8.2016, (c) with communications borne therein rather, holding leaning(s), qua the Education department, not holding possession of the property, embodied in the lis, at hand, also getting effaced, (d) nor hence any capital, being derivable therefrom, by the contesting respondent, rather the respondents being amenable, for, a direction qua the apt withdrawal(s) from acquisition, rather requiring being set aside. However, vigor, if any, of the aforesaid submission addressed before this Court, by the learned counsel for the petitioner, is rendered nugatory, in the apparent face, of, the Principal Division Bench, of, this Court in paragraph5, thereof, para whereof stands reproduced hereinafter: "In our opinion therefore, neither the fact that the State Authorities had taken a plea to oppose writ petition of having become owners of the property, referred to in the writ petition, by way of adverse possession nor the fact that the review petition was barred by limitation, would come in the way of this Court, to set aside both the decisions and relegate the parties for full, complete and effectual decision in the matter. We are inclined to do so also because if the State Authorities are justified in asserting that the land, referred to in the writ petition was not in possession of the State Authorities, as has been evidenced from the demarcation proceedings, the question of acquiring the said land on the assumption that the school building has been constructed on the land, owned and possessed by the petitioner, would not survive and will be a nonissue. The concomitant of that finding would be that the respondent would be unfairly benefited due to forcible acquisition of the property to be done by the State, which is not required by the State Authorities in public interest and it would also be substantial loss to the State exchequer to the extent of over two crores, as is the value of the land estimated." (e) rendering a clear mandate qua the propagation, of, the contesting respondent, qua theirs acquiring title by prescription, visvis, the property, borne in the lis at hand, rather not, forestalling, it, to set aside the verdict previously recorded, by the Coordinate Bench, of this Court, (f) besides, the, aforefinding, is apparently nursed, on anvil of, the Principal Division Bench, in preceding thereof apt paragraph4, also erecting an inference, qua the plea reared by the contesting respondents, qua theirs'' acquiring title by prescription, visvis, the property embodied in the lis being, rather, standing reared, under a mistaken belief, c) the Principal Division Bench, meteing credence, visvis, the demarcation report, with, clear candid unfoldments, borne therein, visvis, the possession of the land in dispute, rather not being held by the Education department, of, the State of H.P. 4. Be that as it may, the only permissible, vista, left open, for this Court, in its proceeding to mete an adjudication upon, the extant petition, (a) is comprised in this Court proceeding to take, into account, events subsequent, to, meteings, of, an adjudication, upon, the writ petition, by the Coordinate Bench of this Court. A perusal, of, the records reveals, that in the interregnum, since, the, Coordinate Bench, of this Court, recorded its verdict, on 27.4.2007, upon, writ petition No. 569 of 2001, and, the apt verdict being quashed by the Principal Division Bench of this Court, under, a pronouncement rendered, on 21.10.2013, upon LPA No. 275 of 2011, (b) the respondents proceeding, to, mete compliance with the mandate, recorded by the Coordinate Bench of this Court. Apt compliance with the mandate recorded, by the Coordinate Bench, of this Court, stands comprised in (c) a notification, being issued on 29.2.2008, for hence bringing, to, acquisition, the land in dispute (d) a notification drawn, under Section 17 (e), read with Section 9 of the Land Acquisition Act, standing issued, on 1.11.2008, by the State Government, (f) the apt award, sealed and signed by the Land Acquisition Collector, being sent by the latter, to the District Collector, on 23.9.2009. However, subsequent thereto, the respondents, while exercising the apt powers, engrafted under Section 48, of, the Land Acquisition Act, rather proceeded, to, on 31.7.2010, hence notify the apt withdrawal, from, hence putting to apt acquisition, the lands in dispute. Visibly, hence all the aforesaid events rather occurred, subsequent, visavis, a verdict standing recorded by the Coordinate Bench of this Court, and, its reversal by the Principal Division Bench of this Court, under, a verdict, rendered on 21.10.2013, upon LPA NO. 275 of 2011, (g) NONETHELESS, with events/evidence subsequent, visvis, the apt verdict standing recorded, by a Coordinate Bench of this Court, rather comprising the apt reserved visible vista, by the Principal Division Bench, for hence this Court, thereupon making a decision afresh, after, remand of the lis, qua it, (h) thereupon, the legality of invocation, by the contesting respondents, visvis, the statutory powers vested, under, Section 48 of the Land Acquisition Act, is enjoined, to be tested. 5. 5. The learned counsel appearing, for the petitioner, has contended with vigor, (i) that with the respondents, issuing a notification, under, Section 17 of the Land Acquisition Act, also theirs'' taking the apt possession, of, the lands, in dispute, hence the withdrawal, from, acquisition by the respondents, (ii) as sparked, from theirs'' exercising, the, statutory powers, borne, in Section 48 of the Land Acquisition Act, rather being impermissible. The aforesaid contention is rested, upon, a verdict rendered by the Hon''ble Apex Court in case, titled as " Collector of Land Acquisition and others versus Andaman Timber Industries , (2014) 16 SCC 780", relevant paragraph9 whereof stands extracted hereinafter: "Besides, it has to be pointed out that the Government after taking possession pursuant to the notification under Section 17 of the Act cannot withdraw itself from acquisition even under Section 48 of the Act. This Court in the very same decision in Satendra Prasad Jain case has dealt with this aspect. The relevant paragraph of the judgment is extracted below: (SCC pp. 37374, para 14) "14. There are two judgments of this Court which we must note. In Rajasthan Housing Board v. Shri Kishan it was held that Government could not withdraw from acquisition under Section 48 once it had taken possession of the land. In Lt. Governor of H.P. v. Avinash Sharma it was held that SCC p. 152, para 8) ''8 after possession has been taken pursuant to a notification under Section 17(a) the land is vested in the Government, and the Clauses Act, nor can the notification be withdrawn in exercise of the powers under Section 48 of the Land Acquisition Act. Any other view would enable the State Government to circumvent the specific provision by relying upon a general power. When possession of the land is taken under Section 17(1), the land vests in the Government. There is no provision by which land statutorily vested in the Government reverts to the original owner by mere cancellation of the notification." For the aforesaid contention standing validated, by this Court, enjoins trite display(s),standing borne in the apt material , qua (i) the respondents evidently holding possession of the lands, in dispute, and qua therewith assessed compensation, rather remaining undisbursed. However, as aforesaid, with the Principal Division Bench, negating, the objections, reared by the respondents, qua theirs acquiring title, by prescription, visvis, the suit land, rather it, meteing credence, visavis the demarcation report, (i) and with the latter making a clear pronouncement, visvis, the respondents rather holding possession of the lands, in dispute, (ii) thereupon the initial preemptory condition, borne in paragraph , of, the judgment rendered by the Hon''ble Apex Court, is, unrecoursable, by the learned counsel for the petitioners, for his hence laying any dependence thereon. 6. Be that as it may, though, their exists material, on record, with clear echoing(s) therein, qua after application of mind by the authorities concerned, (i) theirs proceeding to initiate, the apt statutory processes(es) for hence bringing to acquisition, the, land in dispute, (ii) yet the statutory powers, vested in the respondents, for, theirs thereafter recoursing the provisions borne, in Section 48 of the Land Acquisition Act, cannot be either abridged nor trammeled, unless the notification, drawn under Section 48 of the Land Acquisition Act, remains unpublished, in the official gazette. The necessity, of, the publication, of, the notification, in the official gazette, drawn under the provisions of Section 48, of the Land acquisition Act, is sparked by a holistic purpose, and, is rather meant for ensuring qua the public at large, who may be interested, in the accomplishment, of, the public purpose, in respect whereof the apt lands, stood contemplated to be brought to acquisition, being hence afforded rather a reasonable opportunity, to make representation(s), to, the authorities concerned, against its deacquisition, or its acquisition, as the case may be, b) for preempting unscrupulous landowners, their agents, and, wheelerdealers, concerned from pulling strings, in power corridors, for getting the acquired land released. The aforesaid expostulation of law stands enunciated in a judgment rendered, by the Hon''ble Apex Court in case titled as " Shanti Sports Club and another versus Union of India and others , (2009) 15 SCC 705 ", relevant paragraphs 37 and 38 whereof stands extracted hereinafter: "37. The aforesaid expostulation of law stands enunciated in a judgment rendered, by the Hon''ble Apex Court in case titled as " Shanti Sports Club and another versus Union of India and others , (2009) 15 SCC 705 ", relevant paragraphs 37 and 38 whereof stands extracted hereinafter: "37. In the light of the submissions made by the learned counsel for the parties, we shall now consider whether the note dated 8.6.1999 recorded by the then Minister for Urban Development can be treated as a decision of the Government to withdraw from the acquisition of land in question in terms of Section 48(1) of the Act, which lays down that: "48. Completion of acquisition not compulsory, but compensation to be awarded when not completed_(1)Except in the case provided for in Section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken." Although, the plain language of Section 48(1) does not given any indication of the manner or mode in which the power/discretion to withdraw from the acquisition of any land is required to be exercised, having regard to the scheme of Parts II and VII of the 1894 Act, which postulates publication of notification under Section 4(1), declaration under Section 6 and agreement under Section 42 in the Official Gazette as a condition for valid acquisition of the land for any public purpose or for a company, it is reasonable to take the view that withdrawal from the acquisition, which may adversely affect the public purpose for which, or the company on whose behalf the acquisition is proposed, can be done only by issuing a notification in the Official Gazette." "38. The decision to acquire the land for a public purpose is preceded by consideration of the matter at various levels of the Government. The Revenue Authorities conduct survey for determining the location and status of the land and feasibility of its acquisition for a public purpose. The final decision taken by the competent authority is then published in the Official Gazette in the form of a notification issued under Section 4(1) of the Act. Likewise, declaration made under Section 6 of the Act is published in the Official Gazette. The publication of notifications under Section 4(1) has two fold objectives. In the first place, it enables the landowner(s) to lodge objections against the proposed acquisition. Likewise, declaration made under Section 6 of the Act is published in the Official Gazette. The publication of notifications under Section 4(1) has two fold objectives. In the first place, it enables the landowner(s) to lodge objections against the proposed acquisition. Secondly, it forewarns the owners and other interested persons not to change the character of the land and, at the same time, make them aware that if they enter into any transaction with respect to the land proposed to be acquired, they will do so at their own peril. When the land is acquired on behalf of a company, consent of the appropriate Government is a must. The company is also required to execute an agreement in terms of Section 41 of the Act which is then published in the Official Gazette in terms of Section 42 thereof. As a necessary concomitant, it must be held that the exercise of power by the Government under Section 48(1) of accomplishment of the public purpose for which the land is acquired or the company concerned may question such withdrawal by making representation to the higher authorities or by seeking court''s intervention. If the decision of the Government to withdraw from the acquisition of land is kept secret and is not published in the Official Gazette, there is every likelihood that unscrupulous landowners, their agents and wheelerdealers may pull strings in the power corridors and clandestinely get the land released from acquisition and thereby defeat the public purpose for which the land is acquired. Similarly, the company on whose behalf the land is acquired may suffer incalculable harm by unpublished decision of the Government to withdraw from the acquisition." 7. A perusal of the records, makes candid bespeaking(s) (i) that the apt notifications, drawn under Section 48 of the Land Acquisition Act, remaining unpublished, in, the Official Gazette, whereupon the aforesaid expostulation of law, borne, in judgment , obviously remained unmeted apt compliance therewith. 8. A perusal of the records, makes candid bespeaking(s) (i) that the apt notifications, drawn under Section 48 of the Land Acquisition Act, remaining unpublished, in, the Official Gazette, whereupon the aforesaid expostulation of law, borne, in judgment , obviously remained unmeted apt compliance therewith. 8. For the aforesaid reasons, the notification drawn, under Section 48 of the Land Acquisition Act, is quashed and set aside, and, respondents are directed to elicit, the, participation of the aggrieved public, and, thereafter, make a fresh decision, visvis the imperative necessity, of bringing to acquisition the land, in dispute, or, hence the statutory provisions borne in Section 48 of the Land Acquisition Act, rather enjoin recoursing thereto or compatible therewith provisions'' borne, in, The Right to Fair compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. The apt decision be recorded, within three months, hereafter. 9. In view of this, the instant writ petition stands disposed of. All pending application(s), if any, are also disposed of. No costs.