Madhya Pradesh High Court
Arvind Kumar Jain vs The State Of Madhya Pradesh on 17 February, 2017
WP-17241-2006
(ARVIND KUMAR JAIN Vs THE STATE OF MADHYA PRADESH)
17-02-2017
W.P. No.17241/2006
Arvind Kumar Jain and others
Vs.
State of M.P. and others
For Petitioners : Shri Sanjay Agrawal, Advocate.
For Respondents Nos.1 &2 : Shri Sudeep Chaterjee, PL
For Respondent No.3 : Shri V.S. Shroti, Senior Advocate
with Shri Sourabh Soni.
ORDER
(17/02/2017) Per : Sujoy Paul J.
This petition filed under Article 226 of the Constitution takes exception to the order dated 4.3.2006 Annexure P/14 and contains a prayer to declare the scheme as having been lapsed and abandoned in respect of Phase No.II. The petitioners prayed for a declaration that land of petitioners be treated as released from vesting. The challenge is also made to the resolution No.2 of Municipal Council dated 5.7.2006 Annexure P/20 and consequent advertisement of plots by Annexure P/21. A writ of mandamus is prayed for against Municipal Council, Itarsi for according permission to construct Jain Temple. The petitioners have prayed for a writ of prohibition for restraining the Municipal Council from taking over possession of petitioners' land and using the same for any other purpose whatsoever. Lastly, the challenge is made to the appellate order dated 25.11.2006 whereby the Statutory Appellate Committee has rejected the appeal of the petitioners.
2. Briefly stated, the relevant facts are that the petitioners were owners of certain land in Itarsi. The erstwhile Itarsi Town Improvement Trust (for short 'Trustâ) was constituted under the M.P. Town Improvement Trust Act, 1960 (for short 'the Trust Act'). The Trust framed and got sanctioned a scheme called Surajganj Scheme No.1 from the State Government under Section 52(1) of the Trust Act for the purpose of establishment of residential colonies, shopping complex, health centres, cinema halls, stadium, parks and roads. The scheme contained two phases viz. Phase No.1 consisting of 35.56 acres and Phase No.II consisting of 55.03 acres. The work in respect of Phase No.I is complete. Work in respect of the Phase No.II is totally incomplete and petitioners' land is situated in the land earmarked for Phase No.II.
3. The Trust issued a notification under Section 71(1) of the Trust Act on 11.3.1983 for implementation of the scheme dated 19.10.1982 (Annexure R/1) and acquired 36.60 hectares of land. The notification includes 8 acres of land bearing Khasra No.18 which belongs to the petitioners. The petitioners stated that in addition, land ad measuring 3,56,000 sq. ft. is also included in the notification and this land belongs to petitioner No.1. After family partition, petitioners separately owned land out of Khasra No.18/3, 18/11 and 128/26.
4. Shri Sanjay Agrawal, learned counsel for the petitioner contended that the Trust allegedly issued notice under Section 71(3) of the Trust Act to the petitioners for taking possession of their land. The said notices dated 13.4.1983 Annexure R-5/A & B were referred to in this regard. It is submitted that no compensation has been paid to the petitioners as mandated under Section 72 of the Trust Act. The petitioners submit that the notices/orders dated 13.4.1983 Annexure R-5-A & B were never served on the petitioners. It is the case of the petitioners that after almost two years of issuance of above notices (Annexure R-5-A & R-5-B), the Trust prepared a document showing that it has taken possession of land including petitioners' land on the next date upon completion of 30 days period as mentioned in the notices dated 13.4.1983. It is submitted that no notices under Section 71(4) were ever issued by the Trust and actual possession of land belonging to the petitioners were never taken over by the Trust. The petitioners continued to remain in possession and they are still in possession. Shri Agrawal argued that petitioners have neither given possession to the Trust on their own volition nor the possession was taken forcibly. It is admitted between the parties that earlier MP No.50/85 was filed before this court by the petitioners challenging the constitution of the Trust and seeking stay on dispossession pursuant to the acquisition proceedings. This Court on 9.1.1985 passed an interim order which remained in operation till dismissal of the petition on 10.3.1999. The petitioners referred the communication dated 5.9.1986 Annexure P/8 whereby the Trust expressed its intention not to implement Phase No.II of the Scheme. The document dated 1.10.1990 Annexure P/8 shows that the State Government rejected the Trust's request for de-requisition of land comprising of Phase No.2 of the Scheme.
5. By notification dated 3.6.1994 Annexure P/7, the M.P. Sudhar Nyas Nirsan Adhiniyam, 1994 was brought into force whereby Government repealed the Trust Act and all assets and liabilities of the Trust stood vested with Municipal Council, Itarsi. This is also admitted fact that order passed in MP No.50/85 was affirmed by Division Bench in LPA. The order of Division Bench in the LPA was passed on 1.7.1999. The stand of the petitioners is that the persons owning land falling under Phase II made their own constructions and built around 400 houses in land surrounding the petitioners' land. In all 225 such cases, the Municipal Council has sanctioned the map of the construction. Such permissions are filed cumulatively as Annexure P/9. The learned counsel for the petitioners has taken pains to submit that in sizeable number of cases, the permission was granted to construct the house by the Municipal Council or competent authority. Reliance is placed on document dated 7.7.2005 Annexure P/10, document dated 20.4.2006 Annexure P/11, document dated 9.5.2005 Annexure P/11-D and Annexure P/11-F. It is submitted that in view of good number of permissions accorded to various persons, the Phase No.II has actually abandoned.
6. The petitioners submitted an application for permission for construction of Jain Temple. This application dated 14.2.2006 Annexure P/13 was rejected by the Council on 4.3.2006 Annexure P/14. The petitioners filed WP No.6338/2006 challenging the aforesaid rejection order dated 4.3.2006. The said WP was disposed of with the direction to avail the remedy of appeal before the Appellate Committee. Till decision of appeal, status quo was directed to be maintained. In turn, the appeal Annexure P/17 was preferred. The said appeal was dismissed by order dated 25.11.2006 which is challenged by the petitioners by amending the present petition.
7. On 5.7.2006, the third respondent passed a resolution for development and sale of plots falling in Phase II including petitioners' land. Council also issued advertisement for auction of land falling in Phase II including petitioners' land. Information in this regard was published in a weekly newspaper namely âSurya Stambhâ Annexure P/34.
8. Shri Sanjay Agrawal, learned counsel for the petitioners has referred various documents to show that permissions were granted by SDO for sale of land (Annexure P/22 & P/23). The photographs dated 17.12.2006 Annexure P/35 are filed to show that construction of houses have already taken place. Heavy reliance is placed on the map by contending that pleadings of the petition in paras 5.30 and 5.49 are not denied by the respondents. In absence of specific denial, correctness of map cannot be doubted. This shows that petitioners are still in possession.
9. Shri Agrawal, learned counsel for the petitioners submits that no notice or order as per the requirement of sub-section (3) and (4) of Section 71 of the Trust Act was ever served on the petitioners. The petitioners did not deliver possession pursuant to such notice. The respondents did not avail the remedy of taking forceful possession under Section 71(4) of the Trust Act. In absence thereto, the requirement of Section 71 is not satisfied. Hence, acquisition was not complete. It is further urged that in absence of satisfying the requirement and taking possession as per sub-section (3) & (4), it cannot be presumed that land in question had vested in the Trust. Since it did not vest in the Trust, on repeal of the Trust Act, it did not become asset of the Municipal Council.
10. It is submitted that a civil suit No.5A/12 filed by one Kripal Singh was decreed in his favour on 13.12.2012. This land is adjacent to petitioners' land. The petitioners relied on State of U.P. Vs. Hari Ram-(2013) 4 SCC 280, AIR 2014 SC 1843, (2015) 4 SCC 325 (Velaxan Kumar vs. Union of India) (Paras 14 & 15) and an order of this court passed in W.P.No.11515/2013 (Smt. Gayatri Devi vs. State of M.P.) decided on 17.8.2016. The next contention of petitioners is that the respondents did not determine and pay the compensation to the petitioners under Section 72 of the Trust Act. The right to property is a constitutional and human right. The petitioner cannot be deprived from this right flowing from Article 300A of the Constitution. This right can be taken away only after following `due process'. In absence of payment of compensation, the acquisition proceedings are bad in law.
11. Reliance is placed on the Repeal Act to contend that before repeal, no proceeding was pending before the Tribunal constituted under Section 73 of the Trust Act and hence no proceeding can be said to be continued or saved. Thus, by implication, the Legislature treated such acquisition proceeding as lapsed. Therefore, the acquisition proceedings in the present case stood lapsed after repeal of the Trust Act. In this regard, 2002 (3) SCC 553 (Padma Sundara Rao and others vs. State of Tamil Nadu and others) is relied upon.
12. The impugned orders are called in question on yet another ground that the Phase II was abandoned by respondent Council and after such abandonment, it was not open to the Council to proceed further against the petitioners. Lastly, it is submitted that the petitioners were subjected to hostile discrimination which violates Art. 14 of the Constitution. The permission of construction have been granted to similarly situated persons. The petitioners cannot be given a different treatment. By placing reliance on AIR 1966 SC 81 (Dwarkanath vs. ITO), 1995 (6) SCC 749 (B.C. Chaturvedi vs. Union of India and others), it is urged that this Court has ample power to mould the relief and issue necessary directions for restoration of possession of the petition.
13. Per contra, Shri Shroti, learned senior counsel submitted that scheme relating to Phase II has also been implemented to a great extent despite the fact that relating to the same part of said scheme, litigations were going on. It is stated that complete plotting of the area has been done, roads have been constructed which shows that Trust had taken possession of the land under the Scheme and allegations of the petitioners that they are in possession of the land is absolutely false. Shri Shroti, learned senior counsel submits that the petitioners made two unsuccessful efforts in the present petition to get interim orders from this Court. This Court did not grant any interim order and such rejection of prayer of interim protection got stamp of approval from the Division Bench on two occasions. Thus, in absence of interim protection, it cannot be said that respondent No.3 has committed any error whatsoever in implementing the scheme. Shri Shroti further submits that land of Kripal Singh Gill was acquired for Phase No.1. This land is adjoining to the land of the petitioners. Shri Kripal Singh initially filed MP No.181/85 in which an interim order was passed on 3.4.1985 by directing the parties to maintain status quo. However, said petition was dismissed for want of prosecution on 29.10.1996. Shri Kripal Singh filed the civil suit which was decreed by judgment and decree Annexure P/43.
14. Shri Shroti further submits that the Scheme was in two phases. Phase No.I was implemented long back. The similar development activities were carried out in other part (Phase No.II). In this phase also, plots were carved out and sold out on lease. Lease holders have put up construction on the plots. The Income Tax Department constructed its office and complex for its employees in this Phase No.II. LIC has also constructed its office. In addition, plots were sold for commercial-cum-residential purposes and construction have come out on the land. Thus, contention of the petitioners is vehemently denied that no construction has taken place in Phase No.II and the Scheme cannot be implemented in relation to Phase No.II.
15. It is further submitted that the land was acquired for the purpose of scheme and it remained vested with trust free from all encumbrances. The Trust took possession of the land on 22.12.1984. It is urged that once the land is vested in the Trust, the land owners whose land had been notified for acquisition were divested of their right, title and the interest and Trust became its owner. It is submitted that implementation of a huge scheme takes time. No time limit is prescribed under the Act for taking possession of the acquired area. By taking this Court to the notice dated 13.4.1987 Annexure R-5A & B, it is submitted that the notices in accordance with Section 71(3) of the Act were issued to the petitioners. The petitioners were informed that as per Section 71(1) of the Trust Act, the Scheme has already been published by the Gazette Notification dated 25.3.1983.
16. By this notice, the petitioners were informed that government has accorded sanction as per Section 70 of the Trust Act for acquiring certain amount of land under the scheme. The respondent No.3 also relied on the order dated 22-12-1984 (Annexure R/6-A) wherein it is mentioned that since petitioners did not hand over the possession after receiving notice under Section 71 (3) of the Trust Act, the possession of the land in question was taken on next day of completion of 30 days from the date of issuance of notice. Shri Shroti relied on Annexure P/11-B (Page
86) filed by the petitioners to show that notices dated 11-04-1983 (Annexure R/5) were served on the petitioners. The attention of this Court is drawn on the signature of Sushila Bai (Mother of petitioner No.1). Under the signature of Sushila Bai, the date of receipt of notice is shown as 16-04-1983. On the basis of aforesaid factual matrix, Shri Shroti submits that necessary ingredients and requirement as per Section 71 of the Trust Act are satisfied. The notification as required under Section 71 was duly published in the official gazette, the notices as per Sub-section (3) were issued and delivered on the petitioners directing them to hand over the possession to the erstwhile trust. Since, the petitioners failed to comply with the order made under Sub-section (3) of the Trust Act, Trust itself took possession of the land, which is clear from Annexure R/6-A & B. Thus, the contention of the petitioners that land cannot be said to be vested with respondent No.3 on repeal of the earlier act is without any substance.
17. Learned Senior Counsel submits that the nature of scheme including Phase II shows that huge construction activity was required to be undertaken by the council. In the Trust Act & Municipality Acts, no time limit is prescribed for the purpose of implementation of the scheme. The legislature in its wisdom can prescribe such time limit in relation to a particular enactment as per the scheme and object of the particular enactment. To bolster this contention, Shri Shroti relied on Section 54 of the M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973. Section 54 of this Adhiniyam is cited as an example. In absence of any such stipulation in the present enactment, it cannot be presumed that scheme came to an end or became redundant.
18. The respondent No.3 relied on AIR 1975 Delhi 188 (Umrao Singh vs. Union of India) to submit that taking of symbolic possession on a land is sufficient. As per this judgment, Shri Shroti contends that it is not always necessary to take actual possession of the land. Reliance is also placed on the AIR 1973 Allahabad 647 (Prabhu Lal & Ors. vs. Special Land Acquisition Officer). It is submitted that this judgment is based on the U.P. Town Improvement Act, 1919. It is urged that Allahabad High Court has rightly held that the act does not contain any limitation for carrying out a particular scheme and in absence of any such stipulation, scheme can very well be executed. A Division Bench judgment of this Court reported in AIR 1991 MP 72 (Sanjai Gandhi Grah Nirman Sahkari vs. State of M.P. & Ors.) is relied upon for the same purpose. The Division Bench came to hold that the word âimplementationâ cannot be understood in its narrow sense. A big scheme can never be taken in hand by any development authority because it may not be possible to complete that scheme within three years. Applying the principle of reasonable interpretation, it was held that it cannot be said that life of the scheme was only for three years and thereafter it will automatically lapse. Pertinently, this was a matter arising out of Section 54 of the Adhiniyam, 1973 which prescribes a time limit of three years whereas in the Trust Act, there is no such time limit prescribed.
19. Learned Senior Counsel appearing for the respondent No.3 submits that in the present petition, petitioners have not made any prayer for grant of compensation. The Act is a complete code and as per Section 72 and 73 of the Trust Act, the petitioners can claim compensation. Shri Shroti has taken pains to contend that vesting of a land is not dependent upon payment of compensation. Putting it differently, Shri Shroti submits that if the compensation has not been paid, the petitioners are free to pray for grant of such compensation before the competent authority. For non payment of compensation, the proceedings undertaken by the respondents cannot be said to be illegal or void. Shri Shroti supported the order passed by the Appellate Committee.
20. So far as the question of discrimination raised by petition is concerned, Shri Shroti submits that return is clear on this aspect. In the return, it is averred that if any maps are sanctioned or permission for constructions are granted by the respondent No.3 in favour of any person in Scheme-II, it is an illegal exercise against which appropriate action has been taken. The State Government is requested to take appropriate disciplinary action against the erring officers. It is submitted that if something is done in favour of certain erstwhile land owners in an illegal manner, it cannot become example to be followed. He submits that petitioners are claiming negative equality which cannot be said to be in consonance with Article 14 of the Constitution of India. Reliance is placed on AIR 2005 SC 1299 (Panchanan Misra vs. Digambar Misra) which ratio is followed in AIR 2008 SC 1983 (New Okhla Industrial Development Authority & Anr. vs. Arvind Sonekar). During the course of arguments 2016 (4) MPLJ 622 (Bhairo Singh other vs. State of M.P. & others) was also cited. It is urged that the judgment of Hari Ram (supra) heavily relied upon by the petitioners was considered by this Court and in view of this judgment, the case of Hair Ram (supra) is of no assistance to the petitioners.
21. No other point is pressed by learned counsel for the parties.
22. I have heard learned counsel for the parties at length and perused the record.
23. The core issues involved in this case are related with Section 71 & 72 of the Trust Act. The Section 71 reads as under:
â71. Notification of acquisition and vesting of land in Trust -(1) After the acquisition of land is sanctioned by the State Government under Section 70 the Trust may acquire such land by publishing in the Gazette a notice stating that it had decided to acquire the land and has obtain the sanction of the State Government for the acquisition thereof. (2) When a notice under sub-section (1) is published in the Gazette the land shall, on and from the date of such publication, vest absolutely in the Trust free from all encumbrances.
(3) Where any land is vested in the Trust under sub-section (2), the Trust may be notice in writing, order any person who may be in possession of the land to surrender or deliver possession thereof to the Trust or any person duly authorised by it in this behalf within 30 days of the service of the notice.
(4) If any person refuses or fails to comply with an order made under sub-section (3), the Trust may take possession of the land and may for that purpose caused to be used such force as may be necessary.â Another limb of argument of Shri Sanjay Agrawal is based on the effect of the Repeal Adhiniyam. The relevant portion of this reads as under:
âSection-3. Repal and Savings.-(1) On the appointed day the Madhya Pradesh Town Improvement Trusts Act, 1960 (No.14 of 1961) shall stand repealed and all the Town Improvement Trusts shall stand dissolved.
2. A l l a s s e t s a n d l i a b i l i t i e s o f t h e T o w n Improvement Trusts on the appointed day shall stand vested in the Municipality in that area and such Municipality shall have all powers necessary to take possession of, recover and deal with such assets and discharge such liabilities.
(3) Any proceedings pending immediately before the appointed day to which the Town Improvement Trust was a party shall be continued as if he Municipality was a party thereof in lieu of the Town Improvement Trust. Provided that the proceedings pending immediately before the appointed day, before the Tribunal constituted under Section 73 of the repealed Act shall continued and disposed by the Court of District Judge of the concerned District, where the acquired land is situated as if it is a reference made to that Court under Section 18 of the Land Acquisition Act, 1894 (1 of 1894).â (Emphasized Supplied)
24. On the basis of rival contentions, broadly following issues emerge for consideration-
(i) Whether acquisition of land in question can be said to be illegal because of alleged non-compliance of requirement of Section 71(3) & (4) of the Trust Act ?
And Whether because of alleged violation of Section 71(3) & (4) of the Trust Act, land did not vest in the Trust and petitioners can be said to be in possession of land ?
(ii) Whether because of non-determination and payment of compensation, the acquisition became void or illegal ? The ancillary question is whether the acquisition without payment of compensation hits Art. 300A of the Constitution ?
(iii) What is the effect of Repeal Act on the land/acquisition in question ?
(iv) Whether the acquisition and Scheme No.2 got abandoned because of silence and inaction on the part of the Trust and petitioners can be said to be in possession of land ?
(v) whether petitioners are entitled to get similar treatment qua other persons in whose favour maps were sanctioned and construction were permitted to be raised by the Municipality ?
(vi) Relief ?
As to Point No.(i) :
25. The bone of contention of the petitioners is that in absence of service of a written notice and order, the conditions mentioned in sub-section (3) and (4) of Section 71 of the Trust Act were not satisfied. It was argued that the land in question was neither voluntarily given nor was forcibly acquired by the Trust. In other words, the possession of land remained with the petitioners and it was neither given voluntarily by the petitioners nor was taken forcibly by the respondents as per sub-section (4) of Section 71 of the Trust Act. As noticed, the petitioners alongwith their written synopsis prepared a comparative chart and made effort to draw analogy from Section 10 of Urban Land (Ceiling & Regulations) Act, 1976.
26. The petitioners have also relied on the judgments of Hariram, Gajana, Kantya Patil, Walaison Kumar and Smt. Gayatri Devi (supra) in this regard. Pertinently, these judgments are not arising out of theTrust Act. The provisions of Trust Act were considered by the Supreme Court. The Supreme Court was of the opinion that in view of the provisions contained in Section 71 of the Act, it would be presumed that all procedural steps were taken and land would come to vest in the Trust free from all encumbrances. In JT 1996 (6) SC 44, M/s Malwa Oil Mills vs. State of M.P., the Apex Court opined as under:
âA reading thereof would clearly indicate that on publication of the notification, the right, title and interest of the erstwhile owners stood divested and the land stood vested in the Trust free from all encumbrances. As a consequence, the previous owners have no right or title to alienate the property to any third party. The sale made to the appellants in the aforesaid sale deed, therefore, is a void sale. It does not confer any right. It is also not in dispute that the scheme envisaged was for housing purpose. Unless the scheme is modified and duly published, no non-residential scheme can be brought up. The appellants came to be in possession of the land. It can at best be only illegal possession. The High Court give a categorical finding that the appellants were not in possession and only sign board was put up in the property. Under these circumstances, they did not acquire any right to property.â (Emphasized Supplied) The ratio of Malwa Oil Mills (Supra) was followed by Division Bench of this Court in Mullo Bai vs. State of M.P., 1997 (2) MPLJ 308. The Division Bench held that when a notification under Section 52 of the M.P. Town Improvement Trust Act is issued and further notification is issued under Section 71 of the Act, then it would be presumed that all procedural steps were duly taken by the authorities under the Act.
Section 52 and 71 of the Trust Act were again considered by the Supreme Court in 1997 (9) SCC 321 (Indore Development Authority vs. Balkrishna and others). The Apex Court held that once the sanction for acquisition of land thereof was accorded under Section 70 and notification was published under Section 71(2), the land should be deemed to have been vested in the State covered by the scheme free from all encumbrances. Thereby, the vesting is complete on the date of publication of the notification under Section 71(2). The steps required to be taken under Sub-section (3) and (4) of Section 71 are only Ministerial Acts. Therefore, vesting is not kept in jeopardy or postponed or become incomplete till actual possession is taken by the authorities under Section 71(3) or Section 71(4) as the circumstances so warrant, by issuance of notice and expiry of 30 days in the event of failure to deliver or surrender possession by the person in possession of the land vesting in the State; thereafter, possession could be taken as per procedure in sub-section (4) of Section 71. So vesting is complete as soon as the notification under sub-section (2) of Section 71 was published and thereafter the land is vested free from all encumbrances.
27. I am bound by the aforesaid judgments of Supreme Court and the judgment of Division Bench of this Court which are based on Section 54 and Section 71 of the Trust Act. Since the aforesaid judgments are based on relevant provisions of the Trust Act, judgments cited by Shri Agrawal which are based on different provisions of different enactments cannot be pressed into service. The same view is taken by this Court in the case of Bhairo Singh (supra).
28. As per the judgment of Indore Development Authority (Supra), it is clear that once notification is published under Section 71(2) of the Trust Act, the land must be treated to be vested in the State covered by the scheme free from all encumbrances. The vesting, on publication of notification is treated to be complete and other steps based on sub-section (3) and (4) of Section 71 of the Trust Act are only held to be Ministerial Acts. In view of this principle of law laid down, I am unable to hold that because of alleged violation of sub-section (3) and (4) of Section 71, the acquisition was illegal or vesting in favour of Trust was not complete. As held in Malwa Oil Mills (supra), on vesting of land with Trust, the owners have no right or title on the land and their possession at the best can be termed as illegal possession. As to Point No.(ii) :
29. The exercise of power by which expropriation of land has taken placed shows that State has exercised its power of 'eminent domain'. In 1988 (3) SCC 263 (Coffee Board, Karnataka, Bangalore vs. Commissioner of Commercial Taxes, Karnataka and others), the Apex Court held that eminent domain' is an essential attribute of sovereignty of every State and authorities are universal in support of definition of eminent domain as the power of sovereign to take property for public use without the owner's consent upon making just compensation. The reference was made on the classic authority of subject 'Nichols on Eminent Domain' (1950 Edn.) which defines 'eminent domain' as the power of the sovereign to take property for public use without the owner's consent. The definition expresses the meaning of the power in its irreducible terms:
(a) Power to take;
(b) Without the owner's consent;
(c) For the public use.
In Coffee Board (Supra), it was laid down that it must be admitted, despite the logical accuracy of the foregoing definition and despite the fact that payment of compensation is not an essential element of meaning of eminent domain, that it is an essential element of the valid exercise of such power. Courts have defined eminent domain so as to include this universal limitation as an essential constituent of its meaning. It is much too late in the historical development of this principle to find fault with such judicial utterances. The relationship between the individual's right to compensation and the sovereign's power to condemn is discussed in Thayer's Cases an Constitutional Law. But while obligation (to make compensation) is thus well established and clear let it be particularly noticed upon what ground it stands. Viz. Upon the natural rights of the individual. On the other hand, the right of the State to take springs from a different source, viz., a necessity of government. These two, therefore, have not the same origin; they do not come, for instance, from any implied contract between the State and the individual, that the former shall have the property, if it will make compensation; the right is no mere right of preemption, and it has no condition of compensation annexed to it either precedent or subsequent. But, there is a right to take, and attach to it as an incident, an obligation to make compensation; this latter, morally speaking, follows the other, indeed like a shadow, but it is yet distinct from it, and flows from another source.
30. The Five Judge Bench of Supreme Court, in State of Bihar vs.Kameshwar Singh, AIR 1952 SC 252 opined that the provision for compensation in the Land Acquisition Act applies only to lands acquired under the Act. It has no application to lands acquired under other statutes and, therefore, the provision for compensation of the Land Acquisition Act cannot apply to acquisitions under the Bihar Act and, therefore, the doctrine of occupied field can have no application. In the same judgment, it was further held that it is clear, therefore,, that the obligation for payment of just compensation is a necessary incident of the power of compulsory acquisition of property, both under under the doctrine of the English Common Law as well as under the continental doctrine of eminent domain, subsequently adopted in America. It is further held that concept of acquisition and that of compensation are two different notions having their origin in different sources. One is founded of the sovereign power of the State to take, the other is based on the natural right of a person who is deprived of property to be compensated for his loss. In view of this legal position, it cannot be said that because of non-payment of compensation, the acquisition proceedings became illegal, void or inoperative.
31. The principles laid down in the cases of Chairman, Indore Vikas Pradhikaran vs. Pure Industrial Coke & Chemicals Ltd. and others, 2007 (8) SCC 705, Entertainment Network (India) Limited vs. Super Cassette Industries Ltd., 2008 (13) SCC 40, Karnataka State Financial Corporation Vs. N. Narasimahaiah and others, AIR 2008 SC 1797 and Vimalben Ajitbhai Patel vs. Vatslaben Adhokbhai Patel and others, AIR 2008 SC 2675 cannot be doubted. The right to property is no more a fundamental right but it continues to be a constitutional as well as human right. The respondents are bound to pay compensation to the petitioners in accordance with law. The petitioners are very much entitled to get compensation arising out of their land which has been expropriated by the respondents.
As to Point No.(iii) :
32. The petitioners placed heavy reliance on sub-section (3) of Repeal Act which envisages that only such proceedings in which Town Improvement Trust was a party shall be continued as if Municipality was a party thereto in lieu of Town Improvement Trust. The petitioners' contention is that before repeal of Trust Act no proceeding of any nature was pending before the Tribunal constituted under Section 73 of the Repeal Act. Hence, question of continuation of any proceedings on repeal does not arise. The said contention has no merit. Sub-section (2) of Section 3 of the Repeal Act makes it clear that all the assets and liability of the Trust on the appointed day shall stand vested in the Municipalities in that area and such Municipalities shall have all powers necessary to take possession of, recover and deal with such assets and discharge such liability. Sub-section (2) in my judgement is wide enough and shows that by operation of sub-section (2) the assets and liability (including land) stood vested automatically on the Municipalities on the appointed day. Thereafter, Municipalities can exercise all powers necessary for the purpose of taking possession and recovery etc. Sub- section (2), in no uncertain terms, gives ample power to the Municipality to take appropriate action for recovery of possession and deal with assets. It can also take approprite action for discharge of its liability. Thus, it cannot be said that Municipality has acted beyond the authority of law or violated 'due process'. Hence, this issue is also decided against the petitioners. As to Point No.(iv) :
33. To great extent, this issue is directly or indirectly dealt with hereinabove. The land in question got vested in the Trust and then in the Municipality by operation of law. Mere inaction for sometime by the Trust/Municipality will not make the scheme as redundant or inoperative. Moreso, when the request for abandonment of the scheme (Annexure P/ ) was specifically turned down by the State government. Hence, this contention is rejected being devoid of merit.
As to Point No.(v) :
34. The petitioners claimed similar treatment by contending that permission of construction etc. is given to various similarly situated persons. At the cost of repetition, in the opinion of this Court, once a notification under Section 71(2) of the Trust Act is published, for all practical purposes, the land is vested with the Trust. By operation of the Repeal Act, all assets and liabilities of Trust got transferred and became assets and liability of Municipality. If Municipality has given permission of construction etc. to certain persons contrary to scheme, the said wrong examples cannot be followed under the garb of Article 14 of the Constitution. The claim which is founded on such permissions is based on negative equality. In 2006 (3) SCC 16, the Apex Court opined as under :
âOnly because some advantages would ensure to the people in general by reason of the proposed development, the same would not mean that the ecology of the place would be sacrificed. Only because some encroachments have been made and unauthorised buildings have been constructed, the same by itself cannot be a good ground for allowing other constructional activities to come up which would be in violation of the provisions of the Act. Illegal encroachments, if any, may be removed in accordance with law. It is trite law that there is no equality in illegality.â (Emphasized Supplied) This principle is followed by Apex Court in M/s Vishal Properties Pvt. Ltd. (supra) (Para 12). Thus, on the ground of alleged discrimination, no interference is warranted by this Court.
As to Point No.(vi) :
35. The last issue is whether petitioners are entitled to get any relief in the present petition. While dealing with the other issues, it is held that respondents are bound to pay compensation to the petitioners as per Section 72 of the Trust Act. However, it is not in dispute that in the year 1994, no Tribunal was constituted under Section 73 of the Trust Act and hence, no compensation was determined and paid to the petitioners. No doubt, the petitioners have not prayed for grant of compensation in the relief clause of the petition. However, in view of the judgment of Supreme Court in Dwarkanath Vs. ITO-AIR 1966 SC-81 and B.C.Chaturvedi Vs. Union of India-1995(6) SCC 769, this Court can mould the relief and pass appropriate orders to do complete justice in the matter. Accordingly, I deem it proper to exercise the said power and direct the respondents to determine and pay adequate compensation to the petitioners within ninety days from the date of communication of this order.
36. The petitioners, during course of the arguments, relied on certain other judgments also. Suffice it to say that those judgments are not based on the provisions of the Trust Act. Since the relevant provisions of the Trust Act, including section 71, is dealt in extenso by the Supreme Court in Malwa Oil Mills and Indore Development Authority (supra) and the said ratio is followed by the Division Bench of this court, the judgments cited by the petitioners are of no help to them. I will be failing in my duty if I won't refer to the last contention of Shri Sanjay Agarwal, learned counsel for the petitioner. At the end of arguments, he handed over certain photocopies of revenue entries and contended that these entries are in public domain and hence such photocopies may be taken into account. By taking support of these documents, it was argued that petitioners are in possession.
37. In my view, if petitioners wanted to rely on these documents, the same should have been filed along with appropriate application supported by an affidavit so that the other party could meet the contention by filing appropriate reply. The documents so submitted are the photocopies of the revenue entries and are not even certified copies. Even otherwise, as held in Malwa Oil Mills (supra), once the land is treated to be vested with the Trust, any possession of erstwhile owners, at best, can be said to be illegal possession. Hence, the said documents are of no assistance to the petitioners.
38. In the result, petition deserves to succeed partly. The petitioners are entitled to get compensation as per the provisions of the Trust Act. Accordingly, the respondents are directed to determine and pay the adequate compensation to the petitioners within 90 days from the date of communication of copy of this order.
39. The petition is allowed in part to the extent indicated hereinabove. No cost.
(SUJOY PAUL) JUDGE MKL