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2024 DIGILAW 454 (UTT)

Bablu v. State of Uttarakhand

2024-07-04

RAKESH THAPLIYAL, RITU BAHRI

body2024
JUDGMENT : Rakesh Thapliyal, J. The instant Special Appeal has been preferred against the judgment and order passed by the learned Single Judge dated 19.11.2019, in WPMS No. 3366 of 2016, Bablu Vs. State of Uttarakhand and others, whereby the learned Single Judge dismissed the writ petition with cost of Rs.1,00,000/- (Rupees One Lakh only), since the petitioner has not come up with clean hands and has not disclosed about filing of earlier writ petition which was in fact brought to the notice to the Court by the learned counsel for the respondents. 2. The delay was already condoned by this Court on 09.05.2022 and with the consent of the learned counsel for the parties, since the present Special Appeal is pending since 2020, the same is being decided at the admission stage itself. 3. Brief facts of the case are that the petitioner/appellant herein preferred the writ petition with the following reliefs:- (i) To issue a writ, order or direction in the nature of Mandamus commanding the respondents to release the land in question bearing Khasra No. 157 to 162 vide notification dated 08.02.1962 from Land Acquisition proceedings in terms of Section 24(2) of Right to Fair Compensation & Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. (ii) To issue any suitable writ, order or direction of any nature which this Hon’ble Court may deem fit and proper in the present circumstances of the case. (iii) To award the cost of the writ petition in favour of the petitioner.” 4. The subject matter of the writ petition pertains to acquisition of land for which a notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as “the Old Act”) was issued on 15.11.1961. Subsequently, the urgency clause was also invoked under the Old Act on 31.01.1962 and Section 6 Notification under the Old Act was issued on 08.02.1962. 5. The petitioner approached this Court pursuant to the liberty granted by the Hon’ble Apex Court vide order dated 07.10.2016 passed in Special Leave to Appeal No. 29801/2016, whereby the liberty was given to the petitioner to avail the remedy available to him under the Right to Fair Compensation & Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. 6. 5. The petitioner approached this Court pursuant to the liberty granted by the Hon’ble Apex Court vide order dated 07.10.2016 passed in Special Leave to Appeal No. 29801/2016, whereby the liberty was given to the petitioner to avail the remedy available to him under the Right to Fair Compensation & Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. 6. The stand of the petitioner is that the petitioner’s ancestral land located in khasra No. 157 to 162 of Village Ranipur, District Haridwar, State of Uttarakhand was acquired by the State of Uttar Pradesh in the year 1962 by invoking urgency clause and further he contended in para 5 to 7 of the petition that the award was also passed and compensation was paid; however, the physical possession of the land was not taken and the petitioner and his predecessor’s interest have remained in continuous uninterrupted possession of the land and have been carrying out agricultural activities on the said land and in the year 2013, the Old Act i.e. the Land Acquisition Act, 1894 has been repealed by the Right to Fair Compensation & Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. 7. In para 8 of the writ petition, he has given reference of Section 24 of Right to Fair Compensation & Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. In para 9 of the petition, it is further contended that though the urgency clause of Section 17 was invoked and the award was passed and the physical possession of the land in question has not been taken over therefore, the land acquisition proceedings have lapsed in view of Section 24(2) of the Right to Fair Compensation & Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. 8. 8. A further reference has been made that when the petitioner obtained the copy of the Khatauni, then he was shocked to find out that the Special Land Acquisition Officer vide order dated 02.02.2007 directed that the land will remain acquired and the name of the petitioner will not be added in the record as bhumidhar and aggrieved by the same, a Revision Petition, bearing 1 of 2014-15 was filed before the Additional Commissioner and the Additional Commissioner vide order dated 27.11.2015 set aside the order dated 02.02.2007 passed by the Special Land Acquisition Officer, Haridwar and directed the authorities to delete the name of BHEL from the revenue records and substitute the name of original land holders. 9. It is also submitted that the amount of compensation was also refunded and thereafter BHEL filed a Writ Petition, bearing Writ Petition No. 353 of 2016, challenging the order dated 27.11.2015 and the writ petition was allowed on 30.08.2016 and the order passed by the Additional Commissioner dated 27.11.2015 was quashed and feeling aggrieved with the same the petitioner preferred a Special Leave Petition bearing SLP (C) No. 25971 of 2015 and the Hon’ble Supreme Court vide order dated 07.10.2016 disposed of the Special Leave Petition by granting liberty to the petitioner to raise an issue as per Section 24(2) of the Fair Compensation Act and pursuant to the said liberty, the petitioner has approached this Court. 10. The BHEL /responded No. 2 filed a detailed counter affidavit and the stand which has been taken by the responded No. 2, that number of writ petitions were filed before this Court and the Division Bench as well as the Single Judge of this Court have repeatedly held that the land in question cannot be returned. In the counter affidavit, a reference has been made of a judgement rendered by this Court on 30.08.2016 in Writ Petition (M/S) No. 353 of 2016, BHEL Vs. Bablu and others and held that after a period of 37 years the petitioner cannot challenge the acquisition proceedings. 11. In the counter affidavit, a reference has been made of a judgement rendered by this Court on 30.08.2016 in Writ Petition (M/S) No. 353 of 2016, BHEL Vs. Bablu and others and held that after a period of 37 years the petitioner cannot challenge the acquisition proceedings. 11. In the counter affidavit, a further stand has been taken that the BHEL responded No. 2 is an undertaking of Government of India and is engaged in the production of heavy electrical equipments in one of its factories situated at Ranipur, District Haridwar and in the year 1962 the land of eight villages including the subject land bearing Khasra Nos. 157 to 162 situated at Village Ranipur, Haridwar was acquired by the State of Uttar Pradesh pursuant to the Gazette Notification dated 08.02.1962 and thereafter the possession of the said land was also taken, which is evident from the possession certificate enclosed as CA2 dated 17.03.1962. 12. A further reference has been made in the counter affidavit of the Government Order dated 19.05.1977 pursuant to which Office Memorandum dated 01.12.2003 was issued whereby the khasra numbers in question along with some other khasras were transferred by the BHEL i.e. respondent No. 2 to the State Government for housing purposes in the year 1988, 1993 and 2003 through Haridwar Development Authority/Avas Vikas Parishad, the details of which has been given in para 11 of the counter affidavit. 13. Apart from this, a reference has been made that the petitioner moved an Application before the Special Land Acquisition Officer, Haridwar for return of the land acquired by the State for BHEL on the ground that the land of Shri Sardara Singh, his grandfather, was acquired by the Government of Uttar Pradesh and the Government of Uttar Pradesh issued a general circular for return of unused land and in the meanwhile the grandfather of the petitioner filed Civil Suit in 2005 against respondent No. 2 bearing Suit No. 192 of 2005 in which a permanent injunction was sought for directing the BHEL responder No. 2, not to interfere with the peaceful possession of the plaintiff in the land in dispute. A further reference has been made for the development of Housing Project along with photographs. 14. A reference has been made in the counter affidavit that the judgement rendered by this Court on 30.08.2016 passed in WPMS No. 353 of 2016, BHEL Vs. A further reference has been made for the development of Housing Project along with photographs. 14. A reference has been made in the counter affidavit that the judgement rendered by this Court on 30.08.2016 passed in WPMS No. 353 of 2016, BHEL Vs. Bablu and others, the reference of the judgments rendered by this Court in WPPIL No. 77 of 2011, Kisan Sangharsh Samiti and another Vs. Union of India and others, the judgement of the Single Judge in the case of Bashir Ahmed and others Vs. State of Uttarakhand and others, reported in 2013 (2) UD 168 , as well as the decision given in WPMS No. 1047 of 2008 and WPMS No. 244 of 2009 has been given. 15. In para 22 of the counter affidavit, a reference has been made about the concealment of material facts by the petitioner. The responder No. 1, i.e. the State of Uttarakhand filed the counter affidavit and the respondent No. 3 also filed a short counter affidavit and in response to this, the rejoinder affidavit has also been filed by the petitioner. 16. No doubt, the petitioner approached on the basis of the liberty as given by the Hon’ble Apex Court in order to avail the remedy under Section 24(2) of the new Act and to examine the limited question, the learned Single Judge dealt with the said limited question and draw a conclusion in para 11 by observing that in the present case the Notification under Section 4 of the Land Acquisition Act, 1894 (Old Act) was issued on 15.11.1961 and thereafter Section 6 Notification was also issued on 08.02.1962 and the award was declared on 16.06.1963 and as such the case of the petitioner is not covered under Section 24(1) of the New Act. 17. The learned Single Judge also dealt with the impact of Section 24(2) of the New Act and comes to the conclusion that the said provision is an exception which starts with a non obstante clause which carves out an exemption which brings a case outside the purview of the old Act and within the purview of the new Act. 18. The learned Single Judge also dealt with the impact of Section 24(2) of the New Act and comes to the conclusion that the said provision is an exception which starts with a non obstante clause which carves out an exemption which brings a case outside the purview of the old Act and within the purview of the new Act. 18. By examining the issue in hand, the learned Single Judge observed that in the present case the compensation has been paid to the petitioner which has been admitted by the petitioner so it is not a case where the compensation has not been paid to him. The question is only of possession and the entire case of the petitioner revolves around possession and with regard to this aspect in para 14 the learned Single Judge observed that the physical possession has already been taken from the petitioner is a well established fact and it is clear from the evidence which has come in number of writ petitions before this Court and before the other Courts. 19. The learned Single Judge also gives reference of Civil Suit No. 192 of 2005 filed by Sardara Singh the predecessor in interest of the petitioner against BHEL for injunction in which the temporary injunction was rejected on the ground that the possession of the petitioner was not established. Against the rejection of the temporary injunction application, a Miscellaneous Appeal was also filed bearing Miscellaneous Appeal No. 08 of 2013 which was also dismissed on 04.11.2016. 20. In para 15 of the judgement passed by the learned Single Judge, a reference has been made of WPMS No. 1954 of 2007, Sardara Singh Vs. State of Uttarakhand, in which the petitioner was subsequently substituted. A further reference has been made of WPMS No. 1100 of 2017 and WPMS No. 1890 of 2007 filed by other similarly situated persons and the sole question in those writ petition was whether the land which was acquired under the Old Act and remained unutilised, then whether it can be re-conveyed or reassigned to its erstwhile owner. 21. A further reference has been made of WPMS No. 1100 of 2017 and WPMS No. 1890 of 2007 filed by other similarly situated persons and the sole question in those writ petition was whether the land which was acquired under the Old Act and remained unutilised, then whether it can be re-conveyed or reassigned to its erstwhile owner. 21. The learned Single Judge by giving reference of the judgement of the co-ordinate Bench of this Court comes to the conclusion that the property was mutated in the name of BHEL responded No. 2 in the revenue records which negates the contention of the petitioners that they are still continuing the possession over the acquired land. The learned Single Judge also referred the judgement of the Hon’ble Apex Court in the case of State of Kerala Vs. M. Bhaskaran Pillai, (1997) 5 SCC 432 and several other judgements. 22. Before dealing with the issue as involved in the present Special Appeal, what this Court observed that present appellant/petitioner is only 39 years old and the land was acquired in the year 1962 when the petition was not even born and the petition was filed in the year 2016 questioning the acquisition after more than 55 years. It appears that with some ulterior purposes, the appellant/petitioner approached to this Court and it cannot be ruled out that he was projected by some other persons who either dealing with the business of real estate or are the builders. 23. We examined the grounds of the Appeal as well as the judgment passed by the learned Single Judge and after hearing the arguments of the learned counsel for the parties, we are of the view that the learned Single Judge rightly dismissed the petition with the cost of Rs.1,00,000/- (Rupees One lakh Only) since the petitioner has not come up with clean hands and not only this, he deliberately suppressed the facts. 24. Accordingly, we do not find any merit in the instant Special Appeal and the same is dismissed. The cost as imposed by the learned Single Judge is just and proper and the appellant/petitioner is directed to deposit the cost as imposed by the learned Single Judge within three weeks from the date of passing of this order with the Uttarakhand State Legal Services Authority, failing which the Collector/District Magistrate, Haridwar is directed to recover the same as per law. 25. 25. The Registry is directed to send the copy of this order to the Collector/District Magistrate, Haridwar for necessary compliance.