Himachal Pradesh High Court
State Of H.P. & Others vs Kanti Swaroop Mehta on 28 April, 2023
Bench: Tarlok Singh Chauhan, Virender Singh
1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Letters Patent Appeal No. 171 of 2016 .
Reserved on: 6.3.2023 Decided on : 28 .4.2023 State of H.P. & others ...Appellants Versus Kanti Swaroop Mehta ...Respondent ___________________________________________ Coram Hon'ble Mr. Justice Tarlok Singh Chauhan, Acting Chief Justice.
Hon'ble Mr. Justice Virender Singh, Judge Whether approved for reporting? No ________________________________________________ For the Appellants : Mr. I.N. Mehta, Senior Additional Advocate General with Mr. J.S. Guleria, Deputy Advocate General and Mr.Rajat Chauhan, Law Officer.
For the respondent : Mr. Bhupender Gupta and Mr. Neeraj Gupta, Senior Advocates with Ms.Rinki Kashmiri, Advocate.
::: Downloaded on - 29/04/2023 20:38:06 :::CIS 2Per Virender Singh, Judge .
The appellants have preferred the present Letter Patents Appeal, under Clause 10 of the Letters Patent Act of Delhi High Court, as applicable to the High Court of Himachal Pradesh, against the judgment dated 14.9.2015, passed by the learned Single Judge of this Court (hereinafter referred to as, 'the Writ Court'), in CWP No. 2356 of 2009, titled as, "Kanti Swaroop Mehta versus State of H.P. & others".
2. The learned Writ Court, vide order dated 14.9.2015, has allowed the writ petition, filed by the respondents and quashed the notification (Annexure P11), dated 9.10.2007 and the appellants were directed to accord the necessary approval to draft award Annexure P7, within two months, from the date of passing of the judgment.
3. The parties to the present lis are hereinafter referred to, in the same manner, in which they are referred to, by the learned Writ Court.
4. Brief facts, leading to filing of the present appeal before this Court, may be summed up, as under.
::: Downloaded on - 29/04/2023 20:38:06 :::CIS 3Petitioner Kanti Swaroop Mehta filed the writ petition for following substantive reliefs:
(a) Quashing Annexure P11 which is highly illegal, arbitrary, .
unconstitutional and without jurisdiction.
(b) Directing the respondents to complete the proceedings for land acquisition by according approval to the proposed award sent by respondent No. 3 to the State of Himachal Pradesh, Annexure P7.
(c) In the event of the respondents failing to announce the award, directing the respondents to withdraw entirely from the land of the petitioner and other owners and restore the same in same position before commencing the construction of road etc., restoring the possession back after paying due and adequate compensation to the affected persons as well as petitioner for the loss and damages sustained, within such time as this Hon'ble Court may deem proper and thereafter further directing them not to interfere in any manner with the said land for any purpose whatsoever.
(d) Directing the respondents to pay the petitioner due and adequate compensation as proposed by respondent No. 3 besides awarding such further sum as damages for the physical and mental torture and agony suffered by the petitioner at the hands of respondents on account of aforesaid illegal act.
5. The above writ petition has been filed on the ground that the petitioner is owner in possession of the plot/land, measuring 15 bighas and 4 biswas, comprised in Khasra No. 341/3, entered at Khewat No. 30 Khatauni No. 31 min, situated at Mauja Shamti, Pargna KeontanI, Tehsil and District Solan, H.P. ::: Downloaded on - 29/04/2023 20:38:06 :::CIS 4
6. Respondent No. 1, for the public purpose, i.e. establishment of Sewerage Treatment Plant, proposed to acquire 4 bighas 12 biswas of land in Village Shamti. Out of .
the total land of the petitioner, 3 bighas 6 biswas of land alongwith two other khasra Nos. i.e. 262/3/1 measuring 1 biswas, owned by Smt. Geeta, wife of Shri Sohan Singh and Khara No. 1/1, measuring 1 bigha 5 biswa owned by Smt. Vidya Devi, wife of late Shri Shankar, was proposed to be acquired by the I&PH department. Notification under Section 4 of the Land Acquisition Act, 1894, dated 7 th February, 2005 was issued by respondent No. 1. Thereafter, the procedure, prescribed under Section 6 of the Land Acquisition Act, was followed.
7. It is the further case of the petitioner that in the month of November, 2000, the I&PH department has started construction work of the link road from the part of the land of the petitioner, as well as, Smt. Vidya Devi. However, one Maan Singh, s/o Shri Shankar, has sought injunction, restraining the respondents from cutting the land, as well as, trees, for the construction of the road. In the said civil suit, the stand taken by respondent No. 2 is that the link road is being constructed for connecting the Sewerage Treatment ::: Downloaded on - 29/04/2023 20:38:06 :::CIS 5 Plant of ZoneB in Village Ser from the main road. Thereafter, the construction of the road was entrusted to the Contractor.
The part of the road was also metalled by respondents No. 1 .
and 2.
8. Apart from constructing the road, chambers were also built on the land, proposed to be acquired. The substantial portion of the suit land has also been utilized by the respondents. The possession of the suit land was taken by respondents No. 1 and 2 from the owners, way back in the year 2000.
9. It is the further case of the petitioner that respondents had persuaded the petitioner & other land owners, during the pendency of the Civil Suit, that for the land, utilized by them, an adequate compensation will be paid. Accepting the assurance of the respondents, the petitioner has not stopped the construction work. The acquisition proceedings were completed and thereafter, respondent No. 3 had also drafted the proposed award, acknowledging the factum of possession. Thereafter, the said proposed award was forwarded to respondent No. 1, vide communication dated 17.1.2006. However, respondent No. 2 issued the communication dated 11.9.2007 to respondent No. ::: Downloaded on - 29/04/2023 20:38:06 :::CIS 6 3, whereby the land, upon which the road and chambers were constructed and pipelines were laid, was sought to be denotified.
.
10. Challenging the said act of the respondents of denotifying the land, it is the case of the petitioner that he has been deprived of his land for more than 7 years and now, the government is not expected to indulge in illegal and arbitrary acts, as the same also violate the mandate of Article 300A of the Constitution of India.
11. Petitioner has also taken the stand in the writ petition that before issuing notification to denotify the land in question, no opportunity of being heard was given to the petitioner. Similarly, the said notification has been challenged on the ground that when the possession has already been taken, then, the same cannot be denotified.
12. On the basis of above submissions, the substantive reliefs, as mentioned above, have been sought.
13. The writ petition has been contested by the respondents, in which preliminary objections qua the maintainability, nonjoinder of necessary parties, the writ being bad for delay and laches and estoppel have been raised.
::: Downloaded on - 29/04/2023 20:38:06 :::CIS 714. On merits, the factum of issuance of notification dated 7.2.2005, under Section 4 of the Land Acquisition Act, for acquiring the land measuring 4 bighas 12 .
biswas has not been disputed. The purpose, for which, the same has been proposed to be acquired, has also been admitted.
15. However, according to the respondents, the land was acquired for the construction of road leading to Sewerage Treatment Plant and not for the establishment of Sewerage Treatment Plant. It is the stand of the respondents that on 28.11.1984, a sale deed was executed between Smt. Rama Devi, widow of Sh. Ram Rattan, resident of Srinagar Pargna Bargi Khurd, Tehsil and District Solan, through her general power of attorney, Sh. Kanti Swaroop Mehta, son of Sh. Padam Singh, resident of Srinagar and Farm Scientists Housing Cooperative Society, Nauni, Tehsil and District Solan, through its President Sh. J.R. Thakur, whereby she has sold 2 bighas of land, comprising in Khasra No. 164/146/3, located in Village Shamti alongwith all rights, titles and interests.
16. It is the stand of the respondents that the land mentioned in notification dated 7.2.2005, comprised of ::: Downloaded on - 29/04/2023 20:38:06 :::CIS 8 common path that has been sold/transferred by the above said vendor Smt. Rama Devi, in favour of vendee i.e. Farm Scientists Housing Cooperative Society. The Society, after .
obtaining the approval from the Department of Town & Country Planning, has divided the plots. The land comprised in khasra No. 341/3/2/2/9/1, khasra No. 341/3/2/2/9/4 and Khasra No. 341/3/2/2/9/5, total measuring 3 bighas 6 biswas, has been shown as common path, and as such, the said land cannot be acquired.
17. The locus of the petitioner has also been challenged on the ground that 1 biswa of land, comprised in khasra No. 262/3/1 belongs to one Smt.Gita Devi, whereas 1 bigha 5 biswas of the land was owned by one Man Singh and the petitioner has not been authorized by them to plead their case.
18. It is the further case of the respondents that the land for construction of Sewerage Treatment Plant in Village Ser was acquired, vide Award No. 29/2000, dated 11.6.2000. Thereafter, for taking the material, tools and plants, the respondents felt necessity for utilizing the common path of the Farm Scientists Housing Cooperative Society and as such, an agreement was executed by the ::: Downloaded on - 29/04/2023 20:38:06 :::CIS 9 society on 29.10.1999, regarding maintenance and use of the said common path. As such, they have supported the act of the respondents in not acquiring the land comprised in .
khasra No. 341/3/2/2/9/1, khasra No. 341/3/2/2/9/4 and Khasra No. 341/3/2/2/9/5, and the land comprised in Khasra Nos. 1/1 and 262/3/1, being just, proper, legal and valid.
19. Asserting their rights, as per the provisions of Section 48 of the Land Acquisition Act, a stand has been taken by the respondents that the government has liberty to withdraw from the acquisition proceedings.
20. On the basis of above, a prayer has been made to dismiss the writ petition.
21. The learned Writ Court, after considering the rival contentions of the parties, has come to the conclusion that once the possession has been taken by the respondents, then they can not withdraw from the acquisition proceedings by evoking Section 48 of the Land Acquisition Act.
22. Aggrieved from the said judgment, passed by the learned Writ Court, the present appeal has been preferred, mainly on the ground that the learned Writ Court has not ::: Downloaded on - 29/04/2023 20:38:06 :::CIS 10 considered the preliminary objections, as taken in the reply, as well as the supplementary affidavit, filed on 14.9.2015.
23. The directions passed by the learned Writ Court .
have also been stated to be in violation of the provisions of Section 11A of the Land Acquisition Act, wherein it has been provided that the Collector shall make an award, under Section 11 of the Land Acquisition Act, within a period of two years, from the date of publication of declaration and if no award is made within the aforesaid period, the entire acquisition proceedings shall lapse.
24. Elaborating their stand, the respondents have averred that the declaration under Section 6 has been made by the Collector on 8.9.2005 and as per the Land Acquisition Act, the entire acquisition proceedings stand vitiated and lapsed on 7.9.2007 and thereafter, no award can be passed.
As such, the directions of the learned Single Judge are stated to be in contravention to the law.
25. Highlighting the stand that the suit land was purchased by Farm Scientist Housing Cooperative Society, it is the further case of the respondents that the learned Writ Court has not considered the fact that the writ is barred on the ground of delay and laches, in this case.
::: Downloaded on - 29/04/2023 20:38:06 :::CIS 1126. On the basis of above noticed facts, Mr. I.N. Mehta, the learned Senior Additional Advocate General, assisted by Mr. J.S. Guleria, the learned Deputy Advocate General has .
prayed that the present appeal may kindly be allowed, by setting aside the judgment, passed by the learned Writ Court.
27. Per contra, Mr. Bhupinder Gupta and Mr. Neeraj Gupta, learned Senior Advocates, assisted by Ms. Rinki Kashmiri, Advocate, have supported the judgment impugned, in this appeal.
28. The perusal of the documents, annexed with the writ petition, shows that vide Annexure P1, the land bearing khasra No. 341/3/2/2/9/1, measuring 14 biswas, khasra No. 341/3/2/2/9/4, measuring 2 bighas 11 biswas, khasra No. 341/3/2/2/9/5, measuring 01 biswas, khasra No. 262/3/1, measuring 0.1 biswas and khasra No. 1/1, measuring 1 bigha 5 biswas, total land measuring 4 bighas 12 biswas, was proposed to be acquired, for the road, leading to Sewerage Treatment Plant, at Shamti. As such, the notification, under Section 4 of the Land Acquisition Act, was issued on 7.2.2005 and the notification under Section 6 of the Land Acquisition Act, regarding the aforesaid khasra Nos.,was issued by the respondents, on 8.9.2005. The ::: Downloaded on - 29/04/2023 20:38:06 :::CIS 12 notification, under Section 4 of the Land Acquisition Act, was issued in pursuance of letter dated 24.4.2003, written by the Executive Engineer, I &PH Division, Solan.
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29. The draft award is on the file, as Annexure P
7. In clause 8 of the award, the factum of taking possession has also been mentioned. The relevant portion of the award is reproduced as under:
"Possession of the acquired land is already with the I &PH,Department, however formal possession will be handed over by the Naib Tehsildar, Land Acquisition Office, Solan to the nominee of the department in accordance with law, within one month from the date of payment."
30. The aforesaid draft award was submitted to the respondents (I&PH), vide letter dated 17.1.2006.
Thereafter, the impugned notification, Annexure P11, was issued on 9.10.2007, under Section 48 of the Land Acquisition Act, denotifying the land proposed to be acquired, vide notification issued, under Section 4 of the Land Acquisition Act, dated 7.2.2005.
31. Interestingly, the much relied document, i.e. photo copy of the sale deed, dated dated 26.11.1984, is with regard to the land, bearing khewat khatauni No. 3/4 min, khasra No. 164/146/3 min, measuring 23 bighas 13 biswas, ::: Downloaded on - 29/04/2023 20:38:06 :::CIS 13 situated in village Shamti, whereas, in the notification issued under Section 4 of the Land Acquisition Act, the following Khasra Nos. have been mentioned:
.
District Tehsil Village Khasra Nos. Area
Bigha Biswas
Solan Solan Shamti 341/3/2/2/9/1 0-14
341/3/2/2/9/4 2-11
341/3/2/2/9/5 0-1
262/3/1 0-1
1/1 1-5
Kitas 5 4-12
32. The learned Deputy Advocate General, appearing for the appellant could not satisfy the judicial conscience of this Court as to how this much relied document is having any relevance for the present controversy.
33. As per the provisions of Article 300A of the Constitution of India, the right to hold the property is a constitutional right and considering the factual position regarding obtaining possession of the land, sought to be acquired, vide notification dated 7.2.2005, issued under Section 4 of the Land Acquisition Act, demonstrates that the possession of the land was already taken by the respondents, in this case.::: Downloaded on - 29/04/2023 20:38:06 :::CIS 14
34. Moreover, the factual position, with regard to construction raised over the suit land, has not seriously been disputed by the respondents, in this case. The learned writ .
Court has rightly considered all the abovesaid facts, if the facts and circumstances of the case are seen in the light of decision of Hon'ble Apex Court in case reported in 2013(4) Supreme Court Cases 524, titled as Mahadeo (dead) through LRs and others versus State of Uttar Pradesh & others, relevant paras 14, 15 of which are reproduced as under:
"14.There is no dispute with regard to the settled proposition of law that once the land is acquired and mandatory requirements are complied with including possession having been taken the land vests in the State Government free from all encumbrances. Even if some unutilised land remains, it cannot be re conveyed or reassigned to the erstwhile owner by invoking the provisions of the Land Acquisition Act. This Court in the case of Govt. of A.P. and Anr. vs. V. Syed Akbar AIR 2005 SC 492 held that : (SCC p. 563, para 10).
" 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 ::: Downloaded on - 29/04/2023 20:38:06 :::CIS 15 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 and Ors.
v. M. Bhaskaran Pillai & Anr. (1997) 5 SCC 432 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 r 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 ::: Downloaded on - 29/04/2023 20:38:06 :::CIS 16 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."
.
15. In Satendra Prasad Jain vs. State of U.P., a threeJudge Bench of this Court after considering various provisions including Section 17 of the Act observed as under: (SCC p. 374, para 15) "15. Ordinarily, the Government can take possession of the land proposed to be acquired only after an award of compensation in respect thereof has been made under Section 11. Upon the taking of possession the land vests in the Government, that is to say, the owner of the land loses to the Government the title to it. This is what Section 16 states. The provisions of Section 11A are intended to benefit the land owner and ensure that the award is made within a period of two years from the date of the Section 6 declaration. In the ordinary case, therefore, when Government fails to make an award within two years of the declaration under Section 6, the land has still not vested in the Government and its title remains with the owner, the acquisition proceedings are still pending and, by virtue of the provisions of Section 11A, lapse. When Section 17(1) is applied by reason of urgency, Government takes possession of the land prior to the making of the award under Section 11 and thereupon the owner is divested of the title to the land which is ::: Downloaded on - 29/04/2023 20:38:06 :::CIS 17 vested in the Government. Section 17(1) states so in unmistakable terms. Clearly, Section 11A can have no application to cases of acquisitions under Section 17 because the lands have already .
vested in the Government and there is no provision in the said Act by which land statutorily vested in the Government can revert to the owner."
35. If the facts and circumstances of the present case are seen in the light of the judgment, passed by the the Hon'ble Supreme Court, this Court is in full agreement with the view taken by the learned Writ Court. As such, there is no merit in the present appeal and the same is accordingly dismissed, so also the pending application(s), if any.
(Tarlok Singh Chauhan) Acting Chief Justice (Virender Singh) Judge April 28, 2023 Kalpana ::: Downloaded on - 29/04/2023 20:38:06 :::CIS