Gujarat High Court
Patel Ketuman Natvarbhai & 19 vs Secretary - Revenue Department & 3 on 6 May, 2016
Author: Akil Kureshi
Bench: Akil Kureshi, A.Y. Kogje
C/SCA/724/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 724 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
============================================================
====
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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PATEL KETUMAN NATVARBHAI & 19....Petitioner(s)
Versus
SECRETARY - REVENUE DEPARTMENT & 3....Respondent(s)
================================================================
Appearance:
MR VIRAT G POPAT, ADVOCATE for the Petitioner(s) No. 1 - 20
MR KAMAL TRIVEDI, ADVOCATE GENERAL assisted by MS JIRGA
JHAVARI, AGP for the Respondent(s) No. 1 - 2
MR CHINMAY M GANDHI, ADVOCATE for the Respondent(s) No. 3
MR MB GANDHI, ADVOCATE for the Respondent(s) No. 3
MR KAMAL TRIVEDI, ADVOCATE GENERAL assisted by MS SK VISHEN,
ADVOCATE for the Respondent(s) No. 4
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Page 1 of 29
HC-NIC Page 1 of 29 Created On Sat May 07 08:37:59 IST 2016
C/SCA/724/2016 CAV JUDGMENT
CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 06/05/2016
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE A.Y. KOGJE)
1. Present petition under Article 226 of the Constitution of India is filed praying for the relief of declaration that the acquisition of the lands of the petitioners pursuant to the award dated 27.02.1978 / 28.02.1978 has lapsed in view of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter to be referred as "the Act of 2013"). Petitioners have also prayed for release of their respective lands from the acquisition in view of Section 24 of the Act of 2013.
2. Facts in brief necessary for the present case and as emerging on the record are as under:-
2.1 The petitioners claim to be original owners /occupiers /legal heirs of the owners of various lands situated in village Bhat, Dist. Gandhinagar. These lands were sought to be acquired for construction of Narmada river water project, for which acquisition proceedings were carried out in the year 1978. From the record it Page 2 of 29 HC-NIC Page 2 of 29 Created On Sat May 07 08:37:59 IST 2016 C/SCA/724/2016 CAV JUDGMENT appears that Section 4 notifications of the Land Acquisition Act, 1894 (hereinafter to be referred as "the old Act") are dated 31.01.1963 and 05.01.1967. Section 6 notification are dated 03.01.1969 and 06.01.1969 and award under Section 11 is dated 27.02.1978 /28.02.1978.
2.2 It appears that somewhere in the year 1978, Special Tribunal set up for the purpose of Narmda project gave a direction for change of alignment of canal, pursuant to which path of the canal was deviated and the canal was constructed as per the new alignment and therefore, the lands of the petitioners remained un-
utilized for the purpose of canal. Thus, after the acquisition was completed, the land could not be used for the purpose for which it was acquired due to changed circumstances.
2.3 It appears that for these very lands, some previous litigations were also filed before this Court and disposed of. However, for the purpose of this case, it may not be necessary to refer to those litigations except for one being Special Civil Application No.15030 of 2012, to which at appropriate stage, reference would be made.
2.4 It appears that on 15.03.1978, possession of the lands in question was taken by the acquiring body and Page 3 of 29 HC-NIC Page 3 of 29 Created On Sat May 07 08:37:59 IST 2016 C/SCA/724/2016 CAV JUDGMENT between April 1978 to October 1978, process of making payment of compensation so determined was carried out. 2.5 It appears that after possession was taken over, original land owners /occupiers made application seeking permission to carry out agricultural activities on the lands so acquired on yearly basis ("ek sali") Such permission was granted. However, in the revenue records, particularly village form No.6, entry was mutated in favour of the acquiring body - Sardar Sarovar Narmda Nigam Ltd. ("SSNNLS" for short), respondent No.4 herein. It appears that references were made by the land holders whose lands were acquired under this acquisition and the references were ultimately decided by judgment and order dated 31.01.1985 passed by the learned Extra Assistant Judge, Ahmedabad (Rural). It appears that pursuant to the judgment in references made, payment of compensation was made and received by the land owners. 2.6 It appears that in case of some of the land owners, who claimed additional compensation by invoking Section 28A of the old Act, those persons were also paid such compensation in the year 1993.
2.7 Relevant development which took place in the year 2007 was that draft TP scheme No.80 (Bhat-Sughad) came to be implemented whereby lands acquired by SSNNL Page 4 of 29 HC-NIC Page 4 of 29 Created On Sat May 07 08:37:59 IST 2016 C/SCA/724/2016 CAV JUDGMENT came to be allotted final plot Nos.18/a and 18/2. Similarly, TP scheme No.238 (Bhat-Sughad) was also implemented, wherein lands acquired by SSNNL were allotted final plot NO.78.
2.8 It appears that an attempt was made by the petitioners by filing Special Civil Application No.15030 of 2012 praying inter alia for issuance of an appropriate writ, declaring action of the respondents to allot the lands to GIDC as illegal and further prayed for return or re-allotment of the lands back to the petitioners. This petition was disposed by an oral order dated 20.01.2015. While dealing with this petition, this Court has recorded as under:-
"2.1 On 15.3.1978, possession of lands in question was taken from the petitioners and others by execution of possession receipts and upon payment of determined compensation. On 15/8/1978, Narmada Water Dispute Tribunal gave an award wherein due to technical reasons, deviation was effected in the gradient of the aforesaid proposed Narmada Canal. On 4.10.1983, Entry No. 1534 came to be recorded in Village Form No. 6 mutating the name of Sardar Sarovar Narmada Nigam Ltd i.e. respondent no. 4 with respect to the lands in question. On 9.4.1987, award was passed under section 18 of the Act in respect of the lands in question, granting additional compensation to majority of the ancestors of petitioners. In the year 1988, some of the petitioners herein filed petitions i.e. SCA Nos. 7425 and 8095 of 1988, demanding additional compensation under section 28A of the Act. On 19.9.1991, this Court allowed the aforesaid writ petitions and directed the authorities to grant additional compensation, which was accordingly paid. On 4/4/1996, after Page 5 of 29 HC-NIC Page 5 of 29 Created On Sat May 07 08:37:59 IST 2016 C/SCA/724/2016 CAV JUDGMENT taking over the possession of the lands in question in the year 1978, the ancestors of the petitioners sought permission to carry out agricultural operations on the lands in question on yearly basis i.e. ek-sali basis, which was granted and continued upto 1995 and thereafter, notices were issued to petitioners interalia informing that the aforesaid permissions have been discontinued and that the possession of the lands is with SSNNL and that required compensation has already been paid to them and that they should not effect any encroachment in the acquired lands. On 2.7.2007, draft T.P.Scheme No. 80 (Bhat-Sughad) came to be implemented, whereby SSNNL came to be allotted Final Plot Nos. 18/1 and 18/2 admeasuring in all 41,718 sq.mtrs. Similarly, T.P.Scheme No. 238 (Bhat-Sughad) came to be implemented, whereby SSNNL came to be alloted lands, admeasuring 2,59,592 sq. mtrs. in lieu of 3,69,644 sq. mtrs of land. All the survey numbers of the original lands in question which was acquired at the material time for the purpose of Narmada Canal, have not only lost their original existence and situation, but have already been assigned to various parties including the private individuals by way of final plots, whereas, the SSNNL has been assigned at altogether different places, 3 different final plots referred to above. On 12.10.2012, almost after the period of more than 30 years from the completion of acquisition proceedings, the petitioners filed the captioned writ petition inter-alia seeking re-grant of the lands in question."
2.9 Thereafter, the Court disposed of the petition directing the State to decide representation to be made by the petitioners.
2.10 Pursuant to this order, it appears that petitioners have made representation, which came to be disposed by by an order dated 26.10.2015, which is impugned in this petition.
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3. Heard learned Advocate Mr.Virat Popat for the petitioners, learned Advocate General Shri Kamal Trivedi with learned AGP Ms.Jirga Jhaveri for respondent-State, learned Advocate Mr.M.B.Gandhi for respondent No.3-GIDC and learned Advocate General Shri Kamal Trivedi with learned Advocate Ms.S.K.Vishen for respondent No.4-SSNNL.
4. Learned Advocate Shri Virat Popat for the petitioners, while conceding that compensation was paid to the petitioners at the relevant time, contended that although the notification was issued and award was made, the actual possession of the lands in question was not taken. To support of his contention, he relied upon the photographs and the averments made that the petitioners are still cultivating the lands. He also contended that the land in question was a huge chunk of land and therefore, it is not possible to take possession of such huge chunk of land in one day. He further contended that the revenue record of the relevant time being village form No.7/12 entries would show standing crop. With regard to possession, he submitted that the petitioners were making representation from time to time. In view of the aforementioned circumstances, his ultimate contention was that the acquisition is deemed to have lapsed as per the provisions of Section 24(2) of the Act of 2013. In support of his contentions, he relied upon following Page 7 of 29 HC-NIC Page 7 of 29 Created On Sat May 07 08:37:59 IST 2016 C/SCA/724/2016 CAV JUDGMENT decisions of the Hon'ble Supreme Court:-
I. In case of Balwant Narayan Bhagde Vs. M.D.Bhagwat & Ors., reported in (1976) 1 SCC, page No.700.
II. In case of National Thermal Power
Corporation Limited Vs. Mahesh Dutta &
Ors., reported in (2009) 8 SCC, page
No.339.
III. In case of Raghbir Singh Sehrawat Vs. State of Haryana & Ors., reported in 2012 (1) GLH, page No.339.
IV. In case of Velaxan Kumar Vs. Union of India, reported in 2015 (4) SCC, page No.325.
5. Learned Advocate General appearing on behalf of the respondents drew our attention to the affidavit dated 29.02.2016 filed by the Special Land Acquisition Officer, Narmda Nigam and contended that for the same subject matter, this is third round of litigation. He submitted that possession was taken over by the State authorities way back in the year 1978 and compensation was also paid. The land owners made application seeking permission to carry out cultivation on the lands acquired on yearly Page 8 of 29 HC-NIC Page 8 of 29 Created On Sat May 07 08:37:59 IST 2016 C/SCA/724/2016 CAV JUDGMENT basis (ek sali). Considering their request, such permission was granted by the State. Even necessary entries were also mutated in the revenue record reflecting acquisition of the lands. Reference was filed and enhanced compensation was ordered, which also came to be paid. Learned Advocate General submitted that once having participated in the acquisition proceedings, having accepted the compensation and having handed over possession, petitioners cannot take 'u' turn and that too after 40 years. Bald allegations of possession not being taken over after 40 years is not a reason enough to call upon the State machinery to rush forward with all the records accurately to once again establish the factum of possession being taken over. Learned Advocate General has taken us through the compilation of the record which is given in a tabular form consisting of all the details of the progress of acquisition proceedings in connection with this acquisition. He took us through us yet another affidavit dated 18.04.2016 filed by In-charge Executive Engineer, SSNNL wherein it is contended that the petition, which is filed after almost 30 years suffers from vices of delay, laches and acquiescence. The prayer of the petitioners to reconvey the land in favour of the petitioners is not tenable at law and since the acquisition proceedings had concluded way back in the year 1978, there is no question of applicability of the Page 9 of 29 HC-NIC Page 9 of 29 Created On Sat May 07 08:37:59 IST 2016 C/SCA/724/2016 CAV JUDGMENT provisions of the Act of 2013. Learned Advocate General also pointed out that in the earlier round of litigation, the petitioners started with the contention that possession is not taken over. However, in the face of voluminous documents, which contained award under Section 11, possession receipts, payment receipts, judgment of the Reference Court and compensation being deposited with the District Court, made the petitioners to shift their stand by contending that the petitioners wanted that the land should be given back to them on the ground that though acquisition had taken place long time back, the lands have remained unutilized. Such a shift of stand by the petitioners, if compared to the stand taken in the present petition, would clearly indicate that the petitioners themselves are aware that they are flogging a dead horse and by hook or crook want to recreate their interest in the lands in question. It is submitted by learned Advocate General that the new final plots thus allotted to the acquired lands were later on considered for another public purpose being used for "Mukhya Mantri Gruh Yojna" for providing low cost housing to urban poor and the State has already decided for the same. In support of his contentions, learned Advocate General relied upon a judgment of the Hon'ble Supreme Court in case of State of Maharashtra Vs. Digambar, reported in (1995) 4 SCC, page No.683.
Page 10 of 29 HC-NIC Page 10 of 29 Created On Sat May 07 08:37:59 IST 2016 C/SCA/724/2016 CAV JUDGMENT
6. Learned Advocate Mr.M.B.Gandhi for respondent No.3-GIDC submitted that initially there were communications between GIDC and SSNNL for using the lands in question for developing an International Convention Centre, which is also a public purpose. In the affidavit of respondent No.3-GIDC, it is stated as under:-
"In the year 2005-06, AUDA decided to implement a Town Planning Scheme for village Bhat and arrangement was made with AUDA to aggregate all government land at Bhat and relocate it to the present location in the form of Final Plot out of approximately 37 Hectares of land that was acquired by Sardar Sarovar Narmada Nigam Limited and which cannot be used for the canal purpose. It was decided that AUDA would relocate about 20 Hectares of land to the present earmarked location of the Convention Centre and create a Final Plot for the same. Accordingly, AUDA created Final Plot No.78 admeasuring 21.78 Hectares and it was requested that the said Final Plot may be given to GIDC for the said project."
7. He also contended that in view of the fact that possession is already taken over, there is no question of resorting to Section 24(2) of the Act of 2013.
8. The undisputed facts which emerge from the record of the petition are that in connection with these lands, two separate notifications under Section 4 were published in Government gazette on 31.01.1963 and 05.01.1967 respectively. Section 6 notifications were published on 03.01.1969 and 06.01.1969 respectively and Page 11 of 29 HC-NIC Page 11 of 29 Created On Sat May 07 08:37:59 IST 2016 C/SCA/724/2016 CAV JUDGMENT two separate awards in LAQ Case No.161 and LAQ Case No.372 were published under Section 11 on 27.02.1978 and 28.02.1978 respectively. The compensation towards lands acquired has been paid and received. Reference was made for additional compensation in connection with this acquisition. Copies of the receipt of possession received are also produced on record. The applications made under their signatures by the land owners to the Department requesting for permission to cultivate the lands for a limited period are on record. The "kabulatnama" submitted by such land owners, who were permitted cultivation for the limited period conditionally, are also on record. On the basis of such "kabulatnama" and conditions, separate orders were passed by the Special Land Acquisition Officer to permit them to cultivate for a limited period. It is also on record that where such limited period had lapsed, somewhere in the year 1994, by executing a panchnama in presence of the witnesses, such land owners, who were cultivating with permission, had handed over possession of the lands. Along with the affidavit, revenue record in the nature of village form No.6 (hakk patrak) is also produced. Vide entry No.1534 dated 04.10.1983, mutation is carried out in connection with the lands which were acquired and it is entered that "upon the lands of the villages situated near Ahmedabad city being acquired vide order Page 12 of 29 HC-NIC Page 12 of 29 Created On Sat May 07 08:37:59 IST 2016 C/SCA/724/2016 CAV JUDGMENT No.KHPSR9/81/82 dated 21.08.1982 of the DILR, Ahmedabad Prant, wherein upon the land of the survey numbers mentioned of village Bhat being acquired for Narmada scheme, entry is made as per KPJ-J" It is also on record that pursuant to the judgment rendered by the learned Extra Assistant Judge, Ahmedabad (Rural), additional compensation was also deposited with the Court.
9. With this background, contention of the learned Advocate for the petitioners that possession is not taken cannot stand. Merely by referring to certain photographs, showing standing crop, where such lands cannot be identifiable from photographs, this Court is unable to come to a conclusion that the possession is not taken, especially upon perusing what is reflected on record by plethora of evidence. Both with regards to compensation being paid and possession being taken over at the relevant time, this Court cannot come to any other conclusion than that the possession of the lands at the relevant time was taken. The land owners subsequently on their applications were permitted to cultivate the lands for limited period on certain terms and conditions. This permission was granted upon the applications and undertakings by the petitioners which would clearly show that the petitioners agreed to the position that the land had vested in the Government and that possession was Page 13 of 29 HC-NIC Page 13 of 29 Created On Sat May 07 08:37:59 IST 2016 C/SCA/724/2016 CAV JUDGMENT taken over and that therefore, they required the permission of the Government to cultivate the land. They cannot regenerate right over such lands, which is conclusively closed on completion of acquisition proceedings. The lands would therefore vest completely with the State Government without any encumbrances and such vesting cannot be divested without adopting due process of law.
10. For testing the contention of the learned Advocate for the petitioners that the acquisition is deemed to have lapsed as per the provisions of Section 24(2) of the Act of 2013 as the petitioners are in possession of the subject lands for more than five years, it would be necessary to refer to Section 24 of the Act of 2013, which reads as under:-
"24. Land acquisition process under Act No.1 of 1894 shall be deemed to have lapsed in certain cases.-(1) Notwithstanding 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; or
(b) where an 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.Page 14 of 29
HC-NIC Page 14 of 29 Created On Sat May 07 08:37:59 IST 2016 C/SCA/724/2016 CAV JUDGMENT (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."
11. Plain reading of the above provision relied upon by the learned Advocate for the petitioner would suggest two conditions for attracting the provisions of Section 24(2), (i) award under the said section 11 has been made five years or more prior to the commencement of the Act of 2013, (ii) the physical possession of the land has not been taken or the compensation has not been paid.
12. As observed, in the present case, compensation is already paid and possession of the lands is also taken over and hence, Section 24(2) would not come into operation in the facts of this case.
13. In case of Balwant Narayan Bhagde (supra), the Supreme Court was called upon to examine legality and Page 15 of 29 HC-NIC Page 15 of 29 Created On Sat May 07 08:37:59 IST 2016 C/SCA/724/2016 CAV JUDGMENT validity of the order of the Bombay High Court, which had quashed the order of the Commissioner purporting to give sanction for withdrawal of acquisition and therefore, while dealing with the question regarding possession, the Supreme Court concluded as under:-
"26. In the instant case in agreement with the findings of the Court, I hold that the eye of law actual possession of the land in question was taken by the Tehsildar on the spot and the possession was handed over to the Principal of the Agricultural College. It appears that the appellant on his part thought that he never gave up possession and claimed to continue in actual possession of the disputed land, because of the stay order passed by the Government on or about the 16th April, 1959. It is in the background of the law discussed above that the statement that "the possession (physical) of the entire field S. No. 30/2 of Umari is still retained by the lessee of that field and the land was not actually taken possession of by the Principal Agricultural College, Akola", occurring in the letter dated the 13th December, 1961 written by the Special Land Acquisition Officer, Akola to the Commissioner, Nagpur has got to be appreciated and so also the stand of the Government in its counter as to what was meant by taking of symbolical possession. Viewed in the light of the discussion of law I have made above, it would be noticed that possession of the land, in any event, was taken on the spot and it vested in the Government. The appellant's resuming possession of the land after once it was validly taken by the Government had not the effect of undoing the fact of the vesting of the land in the Government. The Government or the Commissioner was not at liberty to withdraw from the acquisition of any portion of the land of which possession had been taken, under section 48(1) of the Act.
14. In the facts of this case, it cannot be held Page 16 of 29 HC-NIC Page 16 of 29 Created On Sat May 07 08:37:59 IST 2016 C/SCA/724/2016 CAV JUDGMENT that taking over of the possession of the lands was merely a symbolic possession. The documents regarding possession produced on record of this case and referred to in the preceding paras would clearly establish that actual possession of the lands is taken by the acquiring body. Over and above this, the fact that the land owners made applications to the acquiring body seeking permission to cultivate for a limited period, itself is sufficient to indicate taking over of actual possession of the lands. This judgment, therefore, would not support the case of the petitioners.
15. In case of National Thermal Power Corporation Limited (supra), the subject matter of challenge examined by the Supreme Court was the notification issued by the State of Uttar Pradesh under Section 48 of the old Act and in this case, it was the acquiring body which took up a contention that the possession of the part of the land under acquisition has not been delivered to the acquiring body, viz. NTPC and accordingly, symbolic possession has been delivered. It is in this background, the Supreme Court concluded as under:-
"46. However, before us Mr. Ranjit Kumar, learned senior counsel appearing on behalf of the respondents, when questioned, categorically stated that in view of the statement made in the counter affidavit, the positive case of the respondents is that they had not been in possession. If the aforementioned statement Page 17 of 29 HC-NIC Page 17 of 29 Created On Sat May 07 08:37:59 IST 2016 C/SCA/724/2016 CAV JUDGMENT made by the respondents is found to be incorrect, legal steps as is permissible in law may be taken. Furthermore, if the respondents and/or any other person are found to be in possession of the lands which were the subject matter of acquisition in terms of the notification under Section 4 of the Act, appropriate steps for eviction therefor can be initiated. It goes without saying that the authorities of the State of Uttar Pradesh shall render all cooperation to the appellant in this behalf.
47. It is furthermore neither in doubt nor in dispute that the initiation of the acquisition proceedings at the instance of the appellant was for setting up of a thermal power station. It had to be shifted to another site only because the Central Government asked it to do so keeping in view the ecological perspective in mind. It is, therefore, permissible for the appellant to put the land in question which has vested in it for another purpose which would come within the purview of any public purpose as has been noticed by this Court in Khatri (supra) and for any other purpose as has been noticed by this Court in Keerwani Ammal (Supra).
48. Yet again in Kasturi & Ors. v. State of Haryana [(2003) 1 SCC 335], this Court has held:
"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. As already noticed, the State Government in this regard has already initiated proceedings for resumption of the land. In our view, there arises no question of any unjust enrichment to the appellant Company."
49. In Ravi Khullar & Anr. v. Union of India & Ors. [(2007) 5 SCC 231], it was contended:
"16. The learned Additional Solicitor General appearing on behalf of the Page 18 of 29 HC-NIC Page 18 of 29 Created On Sat May 07 08:37:59 IST 2016 C/SCA/724/2016 CAV JUDGMENT respondents submitted that having regard to the authorities on the subject the question is no longer res integra. It is not as if lands acquired for a particular public purpose cannot be utilised for another public purpose. He contended that as long as the acquisition is not held to be mala fide, the acquisition cannot be invalidated merely because the lands which at one time were proposed to be utilised for a particular public purpose, were later either in whole or in part, utilised for some other purpose, though a public purpose. He, therefore, submitted that some change of user of the land, as long as it has a public purpose, would not invalidate the acquisition proceeding which is otherwise valid and legal."
50. It was held:
"23. Referring to the facts of the instant case, it cannot be disputed that the planned development of Delhi for which purpose the land was acquired under Section 4 of the Act is wide enough to include the development and expansion of an airport within the city of Delhi. Thus it cannot be said that the land is actually being utilised for any purpose other than that for which it was acquired.
The only difference is that whereas initially the development work would have been undertaken by DDA or any other agency employed by it, after the constitution of IAAI, the said development work had to be undertaken by the newly constituted authority. Thus there has been no change of purpose of the acquisition. All that has happened is that the development work is undertaken by another agency since constituted, which is entrusted with the special task of maintenance of airports. Since the said authority was constituted several years after the issuance of the notification under Section 4, the acquisition cannot be invalidated only on the ground that the public purpose is sought to be achieved through another agency. This, as we have noticed earlier, was necessitated by change of Page 19 of 29 HC-NIC Page 19 of 29 Created On Sat May 07 08:37:59 IST 2016 C/SCA/724/2016 CAV JUDGMENT circumstances in view of the creation of the authority i.e. IAAI. Moreover, since there is no change of public purpose for which the acquired land is being utilised, the acquisition cannot be invalidated on that ground. The purpose for which the lands are being utilised by a governmental agency is also a public purpose and as we have noticed earlier, would come within the ambit of the public purpose declared in Section 4 notification. Therefore, the acquisition cannot be challenged on the ground that the acquired lands are not being utilised for the declared public purpose. Having regard to the facts of the case it cannot be contended, nor has it been contended, that the notification under Section 4 of the Act was issued mala fide."
51. For the reasons aforementioned, the appeals, being devoid of any merit, are dismissed subject to the observations made hereinbefore with costs. Counsel fee assessed at Rs.50,000/- in each of these appeals."
16. Therefore, this judgment will not help the case of the petitioners.
17. In case of Raghbir Singh Sehrawat (supra), the Supreme Court had enumerated grounds of challenge in para-8, which reads as under:-
"8. The appellant challenged the acquisition of his land in Writ Petition No.8441 of 2009 on several grounds including the following:
(i) that the notification issued under Section 4(1) had not been published as per the requirement of the statute
(ii) that he was not given opportunity of hearing in terms of Section 5A(2),
(iii)that land of large number of persons had Page 20 of 29 HC-NIC Page 20 of 29 Created On Sat May 07 08:37:59 IST 2016 C/SCA/724/2016 CAV JUDGMENT been excluded from acquisition at the stage of Section 6 declaration but his land was not released and, in this manner, he had been discriminated,
(iv) that there was no justification to acquire his land, which was the only source of livelihood for him and his family,
(v) that he was not served with notice in terms of Section 9 (3), and
(vi) that the declaration issued under Section 6(1) was not published as per the requirement of Section 6(3)."
17.1 While dealing with this on facts, the Supreme Court gave its findings as under:-
"16. Since the appellant has been non suited by the High Court only on the ground that possession of the acquired land had been taken by the concerned officers and the same will be deemed to have vested in the State Government free from all encumbrances, we think that it will be appropriate to first consider this facet of his challenge to the impugned orders. In the writ petition filed by him, the appellant categorically averred that physical possession of the acquired land was with him and he has been cultivating the same. This assertion finds support from the entries contained in Girdawari/Record of cultivation, Book No.1, village Jatheri, Tehsil and District Sonepat (years 2001 to 2010). A reading of these entries shows that during those years crops of wheat, paddy and chari were grown by the appellant and at the relevant time, i.e. the date on which possession of the acquired land is said to have been taken and delivered to HSIIDC, paddy crop was standing on 5 Kanals 2 Marlas of land. The respondents have not questioned the genuineness and correctness of the entries contained in the Girdawaris. Therefore, there is Page 21 of 29 HC-NIC Page 21 of 29 Created On Sat May 07 08:37:59 IST 2016 C/SCA/724/2016 CAV JUDGMENT no reason to disbelieve or discard the same. That apart, it is neither the pleaded case of the respondents nor any evidence has been produced before this Court to show that the appellant had unauthorisedly taken possession of the acquired land after 28.11.2008. It is also not the pleaded case of the respondents that the appellant had been given notice that possession of the acquired land would be taken on 28.11.2008 and he should remain present at the site. Therefore, Rojnamcha Vakyati prepared by Sadar Kanungo and three Patwaris showing delivery of possession to Shri Yogesh Mohan Mehra, Senior Manager (IA), HSIIDC, Rai, which is a self serving document, cannot be made basis for recording a finding that possession of the acquired land had been taken by the concerned revenue authorities. The respondents have not produced any other evidence to show that actual possession of the land, on which crop was standing, had been taken after giving notice to the appellant or that he was present at the site when possession of the acquired land was delivered to the Senior Manager of HSIIDC. Indeed, it is not even the case of the respondents that any independent witness was present at the time of taking possession of the acquired land. The Land Acquisition Collector and his subordinates may claim credit of having acted swiftly inasmuch as immediately after pronouncement of the award, possession of the acquired land of village Jatheri is said to have taken from the landowners and handed over to the officer of HSIIDC but keeping in view the fact that crop was standing on the land, the exercise undertaken by the respondents showing delivery of possession cannot but be treated as farce and inconsequential. We have no doubt that if the High Court had summoned the relevant records and scrutinized the same, it would not have summarily dismissed the writ petition on the premise that possession of the acquired land had been taken and the same vested in the State Government."Page 22 of 29
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18. In the instant case, perusal of the revenue record produced by the petitioners, which is in the nature of extracts of village form No.7/12 of February 2008 shows cultivation of crop. This is a case where there is sufficient evidence that the land owners were permitted for limited period to cultivate the lands even after acquisition proceedings were concluded, relying upon such document to conclude that the possession of the lands is not taken is not justifiable. Hence, in the facts of this case, the aforementioned judgment is of no help to the petitioners.
19. In case of Velaxan Kumar (supra), the Supreme Court, while examining the applicability of the beneficial provisions of Section 24(2) of the Act of 2013, to the facts of that case, came to conclusion that the compensation is not paid by the acquiring body to the land owners and that even though more than five years had elapsed from the date of award, physical possession of the lands was not taken and therefore, applying the principles laid down in case of Pune Municipal Corporation & Anr. Vs. Harakchand Misrimal Solanki & Ors., reported in (2014) 3 SCC, page No.183, the Supreme Court declared acquisition to have lapsed. In the instant case, it is not even urged by the petitioners that no compensation has been paid. As a matter of fact, Page 23 of 29 HC-NIC Page 23 of 29 Created On Sat May 07 08:37:59 IST 2016 C/SCA/724/2016 CAV JUDGMENT petitioners have participated at each stage of the acquisition proceedings. The pleadings of this case does not reveal that the petitioners were aggrieved or that they have contended that the proceedings undertaken for acquisition of their lands under the old Act have not been followed or have been breached.
20. In case of Digambar (supra) relied upon by learned Advocate General, the Supreme Court observed as under:-
"22. A three-Judge Bench of this Court in Maharashtra State Road Transport Corporation v. Shri Balwant Regular Motor Service, Amravati & Ors. [1969 (1) SCR 808], reiterated the said principle of laches or undue delay as that which applied in exercise of power by the High Court under Article 226 of the Constitution.
23. Therefore, where a High Court in exercise of its power vested under Article 226 of the Constitution issues a direction, order or writ for granting relief to a person including a citizen without considering his disentitlement for such relief due to his blame-worthy conduct of undue delay or laches in claiming the same, such a direction, order or writ becomes unsustainable as that not made judiciously and reasonably in exercise of its sound judicial discretion, but as that made arbitrarily.
24. Since we have held earlier that the person seeking grant of relief under Article 226 of the Constitution, even if it be against the State, is required to satisfy the High Court that he was not guilty of laches or undue delay in approaching it for relief, need arises for us to consider whether respondent in the present appeal (writ petitioner in the High Court) who had sought for relief of compensation on the alleged infringement of Page 24 of 29 HC-NIC Page 24 of 29 Created On Sat May 07 08:37:59 IST 2016 C/SCA/724/2016 CAV JUDGMENT his legal right, had satisfied the High Court that he was not guilty of undue delay or laches in approaching it for relief. The allegation of the petitioner in the writ petition, as becomes clear from the judgment underappeal, was that although certain extent of his land was taken away in the year 1971-72 by the agency of the State for the scarcity relief road works undertaken by the State Government in the year 1971-72, to find work for small agriculturists and agricultural labourers in the then prevailing severe drought conditions, without his consent, he was not compensated therefor, despite requests made to the State Government and various agencies in that regard eversince tillthe date of filing of the writ petition by him.
25. In our view, the above allegation is in no way sufficient to hold that the writ petitioner (respondent here) has explained properly and satisfactorily the undue delay of 20 years which had occurred between the alleged taking of possession of his land and the date of filing of writ petition in the High Court. We cannot overlook the fact that it is easy to make such kind of allegations against anybody that too against the State. When such general allegation is made against a State in relation to an event said to have occurred 20 years earlier, and the State's non- compliance with petitioners' demands, State may not at all be in a position to dispute such allegation, having regard to themanner in which it is required to carry on its governmental functions. Undue delay of 20 years on the part of the writ petitioner, in invoking the High Court's extraordinary jurisdiction under Article 226 of the Constitution for grant of compensation to his land alleged to have been taken by the Governmental agencies, would suggest that his land was not taken at all, or if it had been taken it could not have been taken without his consent or if it was taken against his consent he had acquiesced in such taking and waived his right to take compensation for it.
26. Thus, when the writ petitioner (respondent here) was guilty of laches or undue delay in approaching the High Court, the principle Page 25 of 29 HC-NIC Page 25 of 29 Created On Sat May 07 08:37:59 IST 2016 C/SCA/724/2016 CAV JUDGMENT of laches or undue delay adverted to above, disentitled the writ petitioner (respondent here) for discretionary relief under Article 226 of the Constitution from the High Court, particularly, when virtually no attempt had been made by the writ petitioner to explain his blame-worthy conduct of undue delay or laches. The High Court, therefore, was wholly wrong in granting relief in relation to inquiring into the allegation and granting compensation for his land alleged to have been used for scarcity relief road works in the year 1971-72. As seen from the judgment of the High Court, the allegation adverted to above, appear to be the common allegation in other 191 writ petitions where judgments are rendered by the High Court following the judgment under appeal and which are subject of S.L.P's in this Court that are yet to be registered. We have, therefore, no hesitation in holding that the High Court had gone wholly wrong in granting the relief which it has given in the judgment under appeal, and judgments rendered following the said judgment in other 191 writ petitions, said to be the subject of S.L.P's or otherwise. All the said judgments of the High Court, having regard to the fact that they were made in writ petitions with common allegation and seeking common relief, are liable to be interfered with and set aside in the interests of justice even though only learned counsel appearing for a few writ petitioners were heard by us.
21. Useful reference be made to the judgment of the Supreme Court in case of V. Chandrasekaran & Anr. Vs. Administrative Officer & Anr., reported in (2012) 12 SCC, page No.133, in which it was observed as under:-
"25. It is a settled legal proposition, that once the land is vested in the State, free from all encumbrances, it cannot be divested and proceedings under the Act would not lapse, even if an award is not made within the statutorily stipulated period. (Vide: Avadh Behari Yadav v. State of Bihar &. Ors., (1995) Page 26 of 29 HC-NIC Page 26 of 29 Created On Sat May 07 08:37:59 IST 2016 C/SCA/724/2016 CAV JUDGMENT 6 SCC 31; U.P. Jal Nigam v. Kalra Properties (P) Ltd. (Supra); Allahabad Development Authority v. Nasiruzzaman & Ors., (1996) 6 SCC 424, M. Ramalinga Thevar v. State of Tamil Nadu & Ors., (2000) 4 SCC 322; and Government of Andhra Pradesh v. Syed Akbar & Ors., AIR 2005 SC 492).
26. The said land, once acquired, cannot be restored to the tenure holders/persons- interested, even if it is not used for the purpose for which it was so acquired, or for any other purpose either. The proceedings cannot be withdrawn/abandoned under the provisions of Section 48 of the Act, or under Section 21 of the General Clauses Act, once the possession of the land has been taken and the land vests in the State, free from all encumbrances. (Vide: State of Madhya Pradesh v. V.P. Sharma, AIR 1966 SC 1593; Lt. Governor of Himachal Pradesh & Anr. v. Shri Avinash Sharma, AIR 1970 SC 1576; Satendra Prasad Jain v. State of U.P. & Ors., AIR 1993 SC 2517; Rajasthan Housing Board & Ors.
v. Shri Kishan & Ors., (1993) 2 SCC 84 and Dedicated Freight Corridor Corporation of India v. Subodh Singh & Ors., (2011) 11 SCC
100).
27. The meaning of the word 'vesting', has been considered by this Court time and again. In Fruit and Vegetable Merchants Union v. The Delhi Improvement Trust, AIR 1957 SC 344, this Court held that the meaning of word 'vesting' varies as per the context of the Statute, under which the property vests. So far as the vesting under Sections 16 and 17 of the Act is concerned, the Court held as under.-
"In the cases contemplated by Sections 16 and 17, the property acquired becomes the property of Government without any condition or ; limitations either as to title or possession. The legislature has made it clear that vesting of the property is not for any limited purpose or limited duration."
28. In Gulam Mustafa & Ors. v. State of Maharashtra & Ors., AIR 1977 SC 448, in a similar situation, this Court held as under:- Page 27 of 29
HC-NIC Page 27 of 29 Created On Sat May 07 08:37:59 IST 2016 C/SCA/724/2016 CAV JUDGMENT "Once the original acquisition is valid and title has vested in the Municipality, how it uses the excess land is no concern of the original owner and cannot be the basis for invalidating the acquisition. There is no principle of law by which a valid compulsory acquisition stands voided because long later the requiring Authority diverts it to a public purpose other than the one stated in the ....declaration."
29. Similarly, in State of Kerala & Anr. v. M. Bhaskaran Pillai & Anr., (1997) 5 SCC 432, this Court held as under:
"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. (See also: C. Padma & Ors. v. Deputy Secretary to the Government of Tamil Nadu & Ors., (1997) 2 SCC 627; Bhagat Singh v. State of U.P. & Ors., AIR 1999 SC 436; Niladri Narayan Chandradhurja v. State of West Bengal, AIR 2002 SC 2532; Northern Indian Glass Industries v. Jaswant Singh & Ors., (2003) 1 SCC 335; and Leelawanti & Ors. v. State of Haryana & Ors., (2012) 1 SCC
66).
30. In Government of Andhra Pradesh & Anr. v. Syed Akbar (Supra), this Court considered this very issue and held that, once the land has vested in the State, it can neither be divested, by virtue of Section 48 of the Act, nor can it be reconveyed to the persons interested/tenure holders, and that therefore, the question of restitution of possession to the tenure holder, does not arise. (See also: Pratap v. State of Page 28 of 29 HC-NIC Page 28 of 29 Created On Sat May 07 08:37:59 IST 2016 C/SCA/724/2016 CAV JUDGMENT Rajasthan, AIR 1996 SC 1296; Chandragaudaj Ramgonda Patil v. State of Maharashtra, (1996) 6 SCC 405; State of Kerala & Ors. v. M. Bhaskaran Pillai & Anr., AIR 1997 SC 2703; Printers (Mysore) . Ltd. v. M.A. Rasheed & Ors. (2004) 4 SCC 460; Bangalore Development Authority v. R. Hanumaiah, (2005) 12 SCC 508; and Delhi Airtech Services (P) Ltd. & Anr. v. State of U.P. & Anr. (2011) 9 SCC 354)."
22. In view of the aforesaid facts, this Court has no hesitation in concluding that the lands in question, on completion of the acquisition proceedings, stood vested in the State free from all encumbrances. The petitioners have not made out a case to attract provisions of Section 24(2) of the Act of 2013 on the ground that the possession of their lands is not taken over and that they still continue to be in possession. The petition therefore fails and is dismissed. Notice is discharged.
(AKIL KURESHI, J.) (A.Y. KOGJE, J.) SHITOLE Page 29 of 29 HC-NIC Page 29 of 29 Created On Sat May 07 08:37:59 IST 2016