Rajasthan High Court - Jaipur
Ashok Kumar Data vs State Of Raj And Ors on 28 May, 2012
Author: Arun Mishra
Bench: Arun Mishra
IN THE HIGH COURT OF JUDICATURE FOR RAJSATHAN AT JAIPUR BENCH, JAIPUR JUDGMENT (1) D.B. Civil Special Appeal (Writ) No.2682/2011 Ashok Kumar Data vs. State of Rajasthan & Ors. (2) D.B. Civil Special Appeal (Writ) No.2674/2011 Prakash Chand & Ors. vs. State of Rajasthan & Ors. (3) D.B. Civil Special Appeal (Writ) No.1/2012 Suresh Chand & Ors. vs. State of Rajasthan & Ors. (4) D.B. Civil Special Appeal (Writ) No.2/2012 Udai Ram & Ors. vs. State of Rajasthan & Ors. (5) D.B. Civil Special Appeal (Writ) No.3/2012 Ramesh Chandra & Ors. vs. State of Rajasthan & Ors. (6) D.B. Civil Special Appeal (Writ) No.4/2012 Nemi Chand & Ors. vs. State of Rajasthan & Ors. Date of Judgment : 28.05.2012 HON'BLE THE CHIEF JUSTICE MR. ARUN MISHRA HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN-I Mr. R.K. Agarwal, Sr. Advocate assisted by Mr. Rishabh Khandelwal] Mr. Saransh Saini ] for appellants. Mr. N.A. Naqvi, Sr. Advocate/AAG assisted by Mr. Mohd. Rahil Kalam, for State. There is delay of 3 days in filing intra-court appeals No.3/2012 & 4/2012. For the reasons stated in the applications under Section 5 of the Limitation Act duly supported by affidavits, delay of 3 days is condoned. Civil Misc. Applications No.6759/2012 & 10983/2012 are disposed of. Defects are waived. Heard on the question of admission. These intra-court appeals have been preferred as against the common order dated 22.10.2011 passed by Single Bench in six writ petitions in the second round of litigation. In the previous round of litigation, petitioners have questioned the validity of notification dated 20.01.1992 issued under Section 4(1) read with Section 17(4) of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') on the ground that there should have been two separate notifications for exercising power under Section 4(1) and Section 17(4) of the Act. The invocation of urgency Clause under section 17 of the Act was also questioned by the petitioners in the previous round of litigation, in fact, 11 writ petitions were filed and dismissed by the Single Bench vide common order dated 02.09.1996. Validity of the notification under section 4 read with section 17(4) of the Act was upheld. Thereafter, in ten special appeals, which were preferred by the petitioners, the Division Bench of this Court vide judgment dated 15.12.2005 in SAW-1213/1996 decided alongwith nine other special appeals granted liberty to the appellants to make representations to the concerned authority with respect to de-acquisition of the lands. Thereafter, representations were filed by the petitioners for de-acquisition of the land which have been rejected vide order dated 14.06.2006 on the ground that possession had been taken over by Kirshi Upaj Mandi Samiti on 05.02.1992. Aggrieved thereby, fresh writ petitions were preferred which have been dismissed by impugned order dated 22.10.2011. Hence, the intra-court appeals have been preferred. Facts in short are that notification under Section 4(1) read with Section 17(4) of the Act was issued on 20.01.1992. Enquiry under Section 5A of the Act was dispensed with. Declaration under Section 6 of the Act was made on 09.03.1993. Award was passed on 21.04.1994. In the present round of litigation, petitioners have submitted that lands have not been utilized by Krishi Upaj Mandi Samiti. They are still in possession. Petitioners are running business in shops and their lands were surrounded by the compound wall etc. In one of the cases, it is stated in addition that the petitioner was residing in the structure which was standing. Substance of the submissions is that land should have been de-acquired. Award has also been passed without objections under Section 9 of the Act. Hence, prayer has been made to quash and set aside the notification dated 20.01.1992 under section 4 read with section 17(4) of the Act, declaration dated 09.03.1993 issued under Section 6 of the Act, award dated 21.04.1994 and the order dated 14.06.2006 rejecting the representations filed for the purpose of de-acquisition. Further prayer is to de-acquire the land. Stand of the Krishi Upaj Mandi Samiti reflects that the acquisition has been validly made. Declaration under Section 6 cannot be questioned now after 12 years. Award has been passed on 21.04.1994. Representations have been rightly rejected. In the reply filed by the State, it is contended that the petitioners are not running any business over the land in question. No recommendation was made by the Land Acquisition Officer to de-acquire the land which is adjacent to the Mandi premises and most useful land or Mandi. Documents with respect to taking possession have also been placed on record alongwith the return of the Krishi Upaj Mandi Samiti. Earlier the writ petitions were filed. Factum of residence has also been denied. It is contended that land is vacant. Representations have rightly been rejected. There is no construction. The land acquisition has attained finality. Possession had already been taken on 05.02.1992. The Single Bench while dismissing the writ petitions by the impugned order has held that land could not have been de-acquired. Decision in the case of Ram Charan Gupta vs. State of Rajasthan & Ors. [2007(3) WLC 139] cannot be applied to the cases of the petitioners. In view of decision rendered in the cases in intra-court appeals of the present petitioners, it is not open to the Court to examine the validity of notification under Section 4(1) read with Section 17(4) of the Act. Since, earlier writ petitions were dismissed on 02.09.1996 and while dealing with the appeals, the Division Bench has given liberty for filing representations with respect to de-acquisition of the lands and the possession had been taken on 05.09.1992, the land stood finality vested in the State Government free from all encumbrances. Thereafter, the nature of land has been changed in view of subsequent developments which have taken place. The Division Bench of this Court has examined the notification dated 20.01.1992 in the case of Ram Charan Gupta (Supra) and the finding has been recorded that there was no application of mind by the appropriate government while issuing the aforesaid notification under section 4 read with section 17(4) of the Act, but that was confined only to the case of Ram Charan Gupta (supra) as specifically ordered by the Court. Thus could not have been applied in the cases of present petitioners. Though, the writ petition of Ram Charan Gupta (supra) was dismissed by Single Bench by the common order, but the appeal was decided separately. Parties are bound by the respective orders passed in the appeals in the previous round of litigation. Mr. R.K. Agarwal, learend Senior Counsel appearing with Mr. Rishabh Khandelwal and Mr. Saransh Saini on behalf of appellants have submitted that it is a fit case where this Court should exercise jurisdiction to de-acquire the lands and also hold that possession had not been taken by the Land Acquisition Officer. It was also submitted that taking over possession could not be said to be in accordance with law as the same could have been taken only after issuance of notification under Section 6 of the Act. The State Government should have exercised the power to de-acquire the land. It was also submitted that earlier decision was taken by the department to de-acquire the land but due to change of power as mentioned in the impugned order, the decision was taken not to de-acquire the land on the ground that possession had been taken on 05.02.1992. In view of decision in Ram Charan Gupta (supra) and as per the notification which was issued under Section 4(1) read with Section 17(4) of the Act, the enquiry was illegally dispensed with. Thus, it is a fit case to exercise jurisdiction by this Court at this stage also and to grant requisite relief prayed in the writ petitions. They have referred certain decisions. After hearing learned counsel appearing on behalf of appellants at extensive length, we are of the considered opinion that no ground so as to make interference is made out in the impugned order. The parties are bound by the orders which were passed in the previous round of litigation. Earlier in the previous writ petitions filed by the appellants, the validity of notification under Section 4(1) read with Section 17(4) of the Act was put in question. The Single Bench of this Court has dismissed 11 writ petitions vide common order dated 02.09.1996. It was clearly held in the cases of appellants by this Court that there was no infirmity in the notification issued under Section 4(1) read with Section 17(4) of the Act. It was also held that enquiry under Section 5A had rightly been dispensed with. No other ground was raised. The writ petitions were dismissed by a Single Bench. Aggrieved thereby, Special Appeals were preferred. Ten special appeals were decided by common judgment dated 15.12.2005. The challenge to acquisition and notification under Section 4(1) read with Section 17(4) of the Act was abandoned. However, in view of subsequent event, which has taken place, prayer was confined to the extent of filing representations to the concerned authority with respect to de-acquisition of the land. Fifteen days' time was granted for filing representations for the same. Following order was passed by the Division Bench of this Court in SAW-1213/1996 and other appeals filed by the appellants: Heard. In view of the subsequent events narrated before us, we grant liberty to the appellants to make representations before the concerned authority in regard to their grievance. The concerned authority is directed to dispose of the representations after providing opportunity of hearing to the appellants as expeditiously as possible. 15 days time is granted to the appellants to submit representations. Till the representations are decided, the parties are directed to maintain status quo in regard to the land in question. The appeals stand disposed of as indicated above. Thereafter, representations were submitted for the purpose of de-acquisition of the land under Section 48 of the Act which had been rejected by the impugned order dated 14.06.2006 on the ground that possession had been taken on 05.02.1992; hence it was not open to de-acquire the land. In view of the order which was passed in the previous case, it is apparent that now it is not open to the appellants to question validity of the acquisition proceedings as sought to be done again in the second round in fresh writ petitions. It was not open to the petitioners to question invocation of urgency clause under Section 17(4) and that question has rightly not been raised by Mr. R.K. Agarwal, Senior Counsel and Mr. Saransh Saini appearing on behalf of appellants in the appeals. No arguments has rightly been raised with respect to notification under Section 4 read with Section 17(4) and declaration under Section 6 of the Act and with respect to the award dated 21.04.1994 which was passed. In our opinion, the possession had been taken on 05.02.1992 and award had been passed on 21.04.1994, land could not have been de-acquired at all under Section 48 of the Act and it is only with respect to land of which possession had not been taken, power under Section 48 can be exercised for de-acquisition as mandated by plain language of Section 48 of the Act itself. We are not at all impressed by the submission raised by the learned counsel appearing on behalf of appellants based upon the decision rendered by this Court in the case of Ram Charan Gupta (supra), in which Division Bench of this Court has laid down with respect to same notification that invocation of Section 4(1) was not appropriate. However, notification under Section 4 was not quashed and notification dated 20.01.1992 was quashed and set aside to the extent of invocation of urgency clause under Section 17(4) of the Act with respect to land bearing khasra No.1468. Declaration under Section 6 was also quashed. Government was given liberty to proceed under Section 6 pursuant to notification dated 20.01.1992 issued Section 4 of the Act. The decision is of no use for the purpose of de-acquisition of land under Section 48 of the Act. The said decision does not carry the appellants' case anywhere as in their cases dismissal of the writ petitions by Single Bench has attained finality and counsel have rightly not urged as to invalidity of notification under Section 4 read with Section 17(4). Even otherwise it could not be raised as question has been abandoned in appeal and decision of Single Bench in previous writ was against them. It is not open to reagitate the question of notification under Section 4(1) read with invocation of Section 17(4) of the Act afresh. It was also submitted by Mr. R.K. Agarwal, Senior Counsel that the decision of the Division Bench in the previous SAW-1213/1996 alongwith nine other appeals is final and the order passed by the Single Bench does not prevail. Whatever that may be, as question of acquisition has attained finality in previous case for the purpose of de-acquisition of land decision of Ram Charan Gupta is of no value. In our considered opinion, once the writ petitions challenging notification under Section 4(1) read with Section 17(4) stood dismissed by the Single Bench and in the appeals challenge was abandoned by the petitioners and they prayed for filing of the representation for the purpose of de-acquisition of the land, they could not have turned around and question the legality of notification issued under Section 4(1) read with Section 17(4) of the Act as done in writ application. It is not open to them to do so in view of decision of the previous writ petitions and appeals. Even otherwise, in the case of Ram Charan Gupta (supra), this Court has given liberty to the respondents to proceed under Section 5A of the Act for the purpose of de-acquisition of the land, but that was confined only to the extent of land holding Ram Charan Gupta alone as ordered by this Court specifically in the operative portion of the order and the decision in the case of present appellants was also taken note by Division Bench of this Court. Thus, parties are bound by orders/judgments passed in their respective cases.
Mr. R.K. Agarwal, Senior Counsel assisted by Mr. Rishabh Khandelwal and Mr. Saransh Saini appearing on behalf of appellants have attacked the factum of taking over of the possession on 05.01.1992 contending that in fact possession was not taken. There are certain compounds, shops and in some of the structures, some of the petitioners are residing. Possession could have been taken before issuance of declaration under Section 6 of the Act, which was made on 09.03.1993. It was also submitted that merely drawal of Panchanama is not enough and possession is still with the appellants. Thus, the decision taken by State Government not to de-acquire the land on the ground that possession has been taken on 05.02.1992 is illegal and arbitrary and the same deserves to be quashed. We are not at all impressed by the submissions raised by the learned counsel for the appellants. The documents on record indicate that possession of land including structures which were existing had been taken on 05.02.1992. There is nothing to doubt the proceedings of taking possession. Consequently, we are of the opinion that once possession had been taken on 05.02.1992, much before the previous writ petitions which were filed. In case, possession had not been taken, it was open to the appellants to raise the question of the possession in the previous writ petitions and to obtain the decision on this aspect, which was not done. Now it is not open to the petitioners to raise this question in the subsequent writ petitions which had been filed, particularly when stand of the respondents was that possession had been taken on 05.02.1992 before filing previous writ petitions; it is too late for the appellants to contend that possession had not been taken over from them. It is apparent from the writ petition filed by Ashok Kumar CWP-9309/2006 that taking over of the possession was not at all questioned or challenged. In any view of the matter since it was open to raise the question of validity of the proceeding of taking over the possession in the previous round of litigation which has not been done. Hence appellants are precluded from raising the question in the present writs/appeals. Even otherwise, it is settled proposition of law that proceedings of taking possession cannot be discarded lightly by the Court. Possession had already been taken on 05.02.1992. It is not pleaded how possession has been taken in illegal manner, it is not pleaded that notice was not given. We cannot take judicial notice of the fact that no such notice was given as this fact was required to be pleaded. Appellants could have challenged legality thereof in the previous round of litigation. Even otherwise, we are of the opinion that in fact possession had been taken on 05.02.1992. In the reply filed by the State Government, it is apparent that possession had been taken and development has been made. Whatever that may be; once possession had been taken and thereafter unauthorized entry has been made by any person that does not confer any right to retain possession. The mode of taking possession has been considered by the Apex Court in Raghbir Singh Sehrawat vs. State of Haryana and Others [(2012) 1 SCC 792] in which the Apex Court has referred decision of Balwant Narayan Bhagde v. M.D. Bhagwat [(1976) 1 SCC 700] and has held that the delivery of symbolic possession should be construed as delivery of actual possession of right, title or interest of the judgment debtor. The Apex court has also referred the decision in Banda Development Authority v. Moti Lal Agarwal [(2011) 5 SCC 394], Balwant Narayan Bhagde v. M.D. Bhagwat [(1976) 1 SCC 700], Balmokand Khatri Educational and Industrial Trust v. State of Punjab [(1996) 4 SCC 212], P.K. Kalburqi v. State of Karnataka [(2005) 12 SCC 489], NTPC Ltd. v. Mahesh Dutta [(2009) 8 SCC 339], Sita Ram Bhandar Society v. Govt. (NCT of Delhi) [(2009) 10 SCC 501] and has laid down propositions that no hard and fast rule can be laid down as to what act would constitute taking of possession of the acquired land. If the acquired land is vacant, the act of the State authority concerned to go to the spot and prepare a panchnama will ordinarily be treated as sufficient to constitute taking of possession. If crop is standing on the acquired land or buildings/structure exists, mere going on the spot by the authority concerned will, by itself, not be sufficient for taking possession. Ordinarily, in such cases, the authority concerned will have to give notice to the occupier of the building/structure or the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchanama. If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every part of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of the independent witnesses.
Following are the propositions laid down by the Apex Court in Raghbir Singh Sherawat case (supra):
27. In Banda Development Authority v. Moti Lal Agarwal, the Court referred to the judgments in Balwant Narayan Bhagde v. M.D. Bhagwat Balmokand Khatri Educational and Industrial Trust v. State of Punjab, P.K. Kalburqi v. State of Karnataka, NTPC Ltd. v. Mahesh Dutta, Sita Ram Bhandar Society v. Govt. (NCT of Delhi) and culled out the following propositions: (Banda Development Authority case , SCC p.411, para 37)
(i) No hard-and-fast rule can be laid down as to what act would constitute taking possession of the acquired land.
(ii) If the acquired land is vacant, the act of the State authority concerned to go to the spot and prepare a panchanama will ordinarily be treated as sufficient to constitute taking of possession.
(iii) If crop is standing on the acquired land or buildings/structure exists, mere going on the spot by the authority concerned will, by itself, be not sufficent for taking possession. Ordinarily, in such cases, the authority concerned will have to give notice to the occupier of the building/structure or the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchanama. Of course, refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken.
(iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and ever parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of the independent witnesses and getting their signatures on such document.
(v) If beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3-A) and substantial portion of the acquired land has been utilised in furtherance of the particular public purpose, then the court may reasonably presume that possession of the acquired land has been taken.
In the instant case, we find that possession in fact has been taken over; it is mentioned that possession of structures had been taken. There is no doubt as to proceedings of taking possession. It is not the case set up by petitioners that no notice was given to them, the question of notice is question of fact and until and unless the same is specifically raised in pleadings, it cannot be raised. Specifically, it has not been contended that in the present writ petitions how possession was taken illegally. It was not case set up that no notice was given to them. Possession has been taken long back and the Single Bench has also found that development has also taken place. Award has been passed. Merely by the fact that declaration was issued under Section 6 of the Act, it cannot be held that possession was not taken in 1992. Since legality was not raised in first round of litigation, it is not open to us to hold that possession was illegally taken. We are of the considered opinion that once possession has been taken, it was not permissible to the petitioners to seek de-acquisition of the land. Decision of Banda Development Authority (supra) which has been relied upon by the learned counsel for the appellant has been taken into consideration by the Apex Court in Raghbir Singh Sehrawat (supra). Reliance has also been placed by the learned counsel for the appellants on the decision of this Court in Union of India and Others vs. Mukesh Hans [(2004) 8 SCC 14] in which the Apex Court has laid down that Section 17 contemplates that taking possession of the land in the case of an urgency without making an award but after the publication of Section 9(1) notice and after the expiration of 15 days of publication of Section 9(1) notice. Therefore, it is seen that if the appropriate Government decides that there is an urgency to invoke Section 17(1) in the normal course Section 4(1) notice will have to be published, Section 6 declaration will have to be made and after completing the procedure comtemplated under Sections 7, 8 and 9(1) notice will have to be given and on expiration of 15 days from the date of such notice the authorities can take possession of the land even before passing of an award. In the instant case, acquisition has attained finality. Award has already been passed. The question cannot be raised in second round of litigation. Thus, we are of considered opinion that it is not open to question the legality of taking over the possession, once it had been taken on 5.2.1992 and award has been passed on 21.04.1994, the land stands absolutely vested in the State Government. Petitioners were very well aware of the position of law they were supposed to know it when previous order was passed in the appeals giving them liberty to submit representations for de-acquisition; it was exercise in futility. Land could not have been de-acquired, once possession has been taken. The land acquisition has attained finality which cannot be questioned in the second round of litigation. Thus, we find that order passed by the Single Bench to be in accordance with law. No case for interference is made out in the intra-court appeals.
Resultantly, the intra-court appeals are dismissed in limine. Civil Misc. Stay Applications are also dismissed. I.A. No.793/2012 is also disposed of.
(NARENDRA KUMAR JAIN-I),J. (ARUN MISHRA),C.J. Mohit S/3-8
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Mohit Tak, Jr. P.A