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2019 DIGILAW 569 (JHR)

Niranjan Pradhan v. State of Jharkhand

2019-02-27

SUJIT NARAYAN PRASAD

body2019
ORDER : 1. This writ petition is under Article 226 of the Constitution of India, wherein, a direction has been sought for upon the respondents-authorities to release the land of the petitioner pertaining to Mouza-Asangi, Thana No.131 Khata No. 327, Plot No. 224. 2. The case of the petitioner, in brief, is that a Land acquisition Proceeding was initiated way back in the year 1963-64 for acquisition of the land pertaining to the petitioner. After conclusion of the Acquisition proceedings, the compensation has been received by the petitioner, although the physical possession of the land has not been taken in view of the provision of Section 24 (2) of Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement, Act, 2013. 3. The contention of the petitioner is that since the physical possession of the land has not been taken, therefore, the entire acquisition proceedings initiated and concluded by virtue of the Land Acquisition Act, 1894 will be deemed to have lost its force under Section 24 (2) of Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement, Act, 2013 and, as such, the land in question be released in favour of the petitioner. 4. Mr. Vineet Prakash, learned A.C. to S.C. (L&C) appearing for the Respondent-State and Mr. R.C.P. Sah, learned counsel appearing for the Jharkhand Industrial Area Development Authority (JIADA) have put their appearance and opposed the submissions and the grounds urged in the instant writ petition and their submission is that the petitioner has got compensation after the conclusion of the acquisition proceedings. 5. The submission has been made by Mr. R.C.P. Sah, learned counsel appearing for the Jharkhand Industrial Area Development Authority (JIADA) that the Respondent-JIADA is still in possession, however, the same has been disputed by the learned counsel for the petitioner. It has been further submitted that once the land has been acquired by the State Government, the same will govern under the provision of the Land Acquisition Act, 1894 and, as such, there is no question of releasing the land in favour of the petitioner by reopening the entire issue, which has been set at rest by virtue of conclusion of the Land acquisition proceedings. 6. 6. Having heard the learned counsel for the respective parties and on appreciation of their rival submissions, it is evident from the prayer made in the writ petition that the land in question has been acquired by the State Government under the provision of the Land Acquisition Act, 1894 i.e. by initiating the proceeding under the provision of Section 4 of the Act, 1894 and in pursuance thereto, the Award has been passed under the provision of Section 11 of the aforesaid Act and thereafter, the amount of compensation has been received by the petitioner. 7. The crux of the bone of dispute, as has been raised by the petitioner is that the land, in question, has not been taken in its possession and remains under the possession of the petitioner, therefore, in view of the provision of Section 24 (2) of the Act, 2013 the entire proceeding initiated under the provision of the Act, 1894 will be said to be lapsed and in consequence thereof, the land in question be released in favour of the petitioner. 8. After considering the legal provision of the Act, 1894 and the Act, 2013, more particularly the provision of Section 24 (2) of the Act, 2013, herein, needs to be referred, which provides, as hereinbelow:- “24 (2). 8. After considering the legal provision of the Act, 1894 and the Act, 2013, more particularly the provision of Section 24 (2) of the Act, 2013, herein, needs to be referred, which provides, as hereinbelow:- “24 (2). Notwithstanding anything contained in subsection (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.” The same is applicable, if the Award under Section 11 has been made 5 years or more prior to the commencement of the Act but the physical possession of the land has not been taken or the compensation in lieu of the land 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, thus, it is nowhere stipulated in the provision of the Act, 1894 even accepting the argument of the petitioner that the physical possession of the land has not been taken, the acquisition made under the late enactment will be deemed to have lost its force. Rather, even if Section 24 (2) of the Act, 1894 will be deemed to have lost its force, then also, a fresh proceedings under the new Act will have to be initiated, meaning thereby that in no case, the land can be utilized in favour of the land holders, after the competition of the acquisition proceedings. 9. The provision of Section 48 of the Land Acquisition Act, 1894, herein, needs to be referred, which provides, as hereinbelow:- “48. 9. The provision of Section 48 of the Land Acquisition Act, 1894, herein, needs to be referred, which provides, as hereinbelow:- “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. (2) Whenever the Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings thereunder, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land. (3) The provisions of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this section.” 10. From the said provision it is evident that 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 and further, whenever the Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings thereunder and shall pay such amount to the person interested, together with all costs, reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land. 11. The aforesaid provision has been taken into consideration by the Hon’ble Apex Court in the case of Govt. of A.P. and another-Vs.-Syed Akbar reported in (2005) 1 SCC 558 , wherein, at paragraph 10, it has been laid down by referring to the provision of Section 48 that the Government would not withdraw any land of which possession has not been taken and further at paragraph 13, it has been laid down that 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, the paragraph 10 and 13 of the said judgment is being produced, hereinbelow:- “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 reconvey the said land to the respondent as the possession of the land had already been taken. The position of law is well settled. In State of Kerala v. M. Bhaskaran Pillai para 4 of the said judgment reads: (SCC p. 433) “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. In case there is no 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.” 13. Yet in another recent decision, this Court in Northern Indian Glass Industries v. Jaswant Singh referring to the case of Chandragauda Ramgonda Patil and other cases held that: (SCC p. 340, para 12) “12. Yet in another recent decision, this Court in Northern Indian Glass Industries v. Jaswant Singh referring to the case of Chandragauda Ramgonda Patil and other cases held that: (SCC p. 340, para 12) “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.” Paras 10 and 11 of the said judgment read thus: (SCC p. 340) “10. In Chandragauda Ramgonda Patil v. State of Maharashtra it is stated that the acquired land remaining unutilised 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. 11. Yet again in C. Padma v. Dy. Secy. to the Govt. of T.N. it is held that acquired land having vested in the State and the compensation having been 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.” 12. In view of the aforesaid legal position, as referred hereinabove, the prayer, which has been sought for by the petitioner pertaining to restoration of the land, is not worth to be considered. In consequence thereof, the writ petition lacks merit and hence, dismissed.