Gujarat High Court
Hajibhai Aiyubbhai vs State Of Gujarat & 2 on 27 March, 2015
Author: Ks Jhaveri
Bench: Ks Jhaveri
C/SCA/15531/2008 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 15531 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
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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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HAJIBHAI AIYUBBHAI....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR SATYAM Y CHHAYA, ADVOCATE for the Petitioner(s) No. 1
MR. JAVED S QURESHI, ADVOCATE for the Petitioner(s) No. 1
MR HARSHEEL SHUKLA, ASST GOVERNMENT PLEADER for the
Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2 - 3
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CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
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C/SCA/15531/2008 JUDGMENT
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 27/03/2015
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI)
1. This matter was ordered to be heard with Special Civil Application No. 13529 of 2008 which has already been disposed of by this Court vide judgement and order dated 20.02.2015. The same is reproduced hereunder:
"1. By way of this petition, the petitioners have prayed for the following reliefs:-
[A] be pleased to admit it and allow this petition;
[B] be pleased to quash and set aside the action/decision of the respondents, as per communication dated 21.7.2008 at annexure G and dt. 07.08.08 at annexureH to this petition, of refusing to accept the demand of the petitioners to re-grant their land beairng S. No.108 admeasurng 1 acre 28 gunthas acquired under LAQ Case No.3/60 by ussing suitable writ, direction and/or order under Art. 226 of the Constitution of India;
[C] be pleased to hold that the petitioners are entitled to re-grant of their land bearing S. No.108 admeasuring 1 acre 28 gunthas acquired under LAQ Case no.3/60 at the market price prevailing as on 03/10/1969 and direct the respondents to re-grant the said land to the petitioners at the market price prevailing as on 03/10/1969 by issuing Writ of Mandamus or any other Writ, direction and/or under Article 226 of the Constitution of India;
[D] xxx [E] xxx
2. The facts of this case are that one Pola Dadla, grand father of the petitioners was the owner of the agriculture Page 2 of 10 C/SCA/15531/2008 JUDGMENT land bearing survey no.108 admeasuring 3 Acre 60 Gunthas of Vadasada Village. Out of the said land initially land admeasuring 1 Acre 20 Gunthas was acquired for Bhadar main canal under LAQ Case No. 3/60. However, because of the change in the location of the canal, again land admeasuring 1 acre 28 Gunthas was additionally acquired from the same survey number under LAQ Case No. 3/60. It is the case of the petitioners that the land admeasuring 1 acre and 28 Gunthas, which was acquired in the first stage under LAQ No. 3/60 remained as surplus and therefore, they made applications to the State Government for re-grant of the said land to them, however, the said request of the petitioners was rejected by the State Government. Hence, this petition.
3. Learned advocate for the petitioners has submitted that in the Certificate dated 20.06.2008 issued by the Deputy Executive Engineer, Jetpur, it has been categorically stated that there is no encroachment in the land in question and the petitioners are in possession of the said land. Therefore, learned advocate for the petitioners urged that in view of the aforesaid facts and in view of the provisions of the Land Acquisition Act and this Court may allow this petition.
3.1. In support of his contention, he relied on the decision of this Court in the case of Mahmadtarik Akbarali Khoja vs. State of Gujarat and 2, reported in 2014(0) GLHEL-HC 231880, more particularly paragraph Nos. 8 and 9, which read as under:-
8. The Apex Court had an occasion to interpret the above-referred Section in the case of Pune Municipal Corporation and Another Vs. Harakchand Misirimal Solanki and others reported in AIR 2014 SC 982, wherein at para 10 and 11, it was observed thus:-
10. Insofar as sub-section (1) of Section 24 is concerned, it begins with non obstante clause. By this, Parliament has given overriding effect to this provision over all other provisions of 2013 Act. It is provided in clause (a) that where the land acquisition proceedings have been initiated under the 1894 Act but no award under Section 11 is made, then the provisions of 2013 Act shall apply relating to the determination of compensation. Clause (b) of Section 24(1) makes provision that where land acquisition proceedings have been initiated under the 1894 Act and award has been made under Section 11, then such proceedings shall continue under the provisions Page 3 of 10 C/SCA/15531/2008 JUDGMENT of the 1894 Act as if that Act has not been repealed.
11.Section 24(2) also begins with non obstante clause.
This provision has overriding effect over Section 24(1). Section 24(2) enacts that in relation to the land acquisition proceedings initiated under 1894 Act, where an award has been made five years or more prior to the commencement of the 2013 Act and either of the two contingencies is satisfied, viz; (i) physical possession of the land has not been taken or (ii) the compensation has not been paid, such acquisition proceedings shall be deemed to have lapsed. On the lapse of such acquisition proceedings, if the appropriate government still chooses to acquire the land which was the subject matter of acquisition under the 1894 Act then it has to initiate the proceedings afresh under the 2013 Act. The proviso appended to Section 24(2) deals with a situation where in respect of the acquisition initiated under the 1894 Act 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 the beneficiaries specified in Section 4 notification become entitled to compensation under 2013 Act.
9. In the present case, we are not concerned with the situation of a case where award was passed and therefore, we find that Section 24(2) of the New Act may not be applicable. Since in the present case, award has not been passed, we are of the view that Section 24(1) of the New Act would apply. As per Section 24(1) of the New Act read with the above- referred observations of the Apex Court in a case where no award under Section 11 is made, the provisions of the New Act shall apply relating to the determination of compensation. To say in other words, proceedings under the Old Act may continue except for compensation under the New Act. Such would mean that the provisions of the Old Act may continue for the purpose of considering the legality and validity of the acquisition proceedings and/or for continuation of the land acquisition proceedings. In our view, as in the present case, award has not been passed under the Old Act, it cannot be said that by virtue of the provisions of the New Act, the proceedings would lapse but at the same time, the provisions of the Old Act may continue for the purpose of examination of the legality and validity of the land acquisition proceedings. Section 11A of the Old Act reads as under:-
11A. Period within which an award shall be made- The Collector shall make an award Page 4 of 10 C/SCA/15531/2008 JUDGMENT under section 11 within a period of two years from the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse:
Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984, the award shall be made within a period of two years from such commencements.
Explanation: In computing the period of two years referred to in this section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court shall be excluded.
4. On the other hand, Mr. Patel, learned AGP appearing for the respondent-State has submitted that the compensation in lieu of the lands in question has already been granted to the petitioners and possession of the said lands have also been taken by the state-Government, therefore, the present petition is devoid of any merit and deserves to be dismissed.
4.1. In support of his contention, he relied upon the decision of the Apex Court in the case of Mahadeo (dead) through Lrs. and Others, vs. State of Uttar Pradesh and Others, reported in (2013) 4 SCC 524, more particularly paragraph No.14 of the said judgment, which reads 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 re-assigned 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 :-
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 Acquisition Act, Government could withdraw from the acquisition of any land of which possession has not been taken. In the instant Page 5 of 10 C/SCA/15531/2008 JUDGMENT 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 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 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.
2. Thereafter, he relied upon another decision of the Apex Court in the case of V. Chandrasekaran and Another Vs. Administrative Officer and Ors, reported in (2012) 12 SCC 133, more particularly paragraph Nos. 26 to 31, which read as under:-
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.Page 6 of 10
C/SCA/15531/2008 JUDGMENT 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.-
"19. ...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:-
"5. ...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:
4. ... 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. (emphasis supplied) Page 7 of 10 C/SCA/15531/2008 JUDGMENT (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 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).
31.In view of the above, the law can be crystallized to mean, that once the land is acquired and it vests in the State, free from all encumbrances, it is not the concern of the land owner, whether the land is being used for the purpose for which it was acquired or for any other purpose. He becomes persona non-grata once the land vests in the State. He has a right to only receive compensation for the same, unless the acquisition proceeding is itself challenged. The State neither has the requisite power to reconvey the land to the person-interested, nor can such person claim any right of restitution on any ground, whatsoever, unless there is some statutory amendment to this effect.
4.3. Learned AGP lastly relied on the decision of this Court in the case of DIP CO-OP Housing Society Ltd. Vs. State of Gujarat and Anr. reported in 2008 (2) GLR page 1382.
5. We have heard learned advocate for the petitioners as well as learned AGP for the respondent-State and perused the material on record. Before proceeding with the matter, it would be relevant to note that the Certificate on which the reliance is placed by the learned advocate for the petitioners itself is not a genuine Certificate since the Authority who has issued the Certificate is not Competent Authority to issue such certificates. Further, it is required to be noted that the possession of the land in question has already been taken by Page 8 of 10 C/SCA/15531/2008 JUDGMENT the State Government and compensation in lieu of said land has already been received by the petitioners. Therefore, we are of the opinion that the claim of the petitioners to re- grant the said land to them is not a valid demand. The Apex Court in the case of Mahadeo (dead) through Lrs. and Others (supra) and V. Chandrasekaran and another Vs. Administrative Officer and Ors (supra) categorically held that once the land is acquired and it vests in the State Government, the same is free from all encumbrances, it is not the concern of the land owner, whether the land is being used for the purpose for which it was acquired or for any other purpose.
6. Considering the facts of the case and also considering the principle laid down by the Apex Court in the above two decisions, we are of the opinion that the present petition deserves to be dismissed and the same is accordingly dismissed. Notice is discharged. "
2. Mr. Chhaya, learned advocate appearing for the petitioners states that the Government requested the Deputy Collector vide order dated 19.07.2002 for returning the adjacent land of the petitioner to its original owner but the same was not acted upon. He submitted that infact the said order was acted upon by the Deputy Collector qua the neighbour of the petitioner but not the present petitioner.
3. Having gone through the records of the case, we are of the opinion that the present petition shall be governed by the judgement and order dated 20.02.2015 passed in Special Civil Application No. 13529 of 2008 reproduced hereinabove. The Apex Court in the case of Mahadeo (dead) through Lrs. and Others (supra) and V. Chandrasekaran and another Vs. Administrative Officer and Ors (supra) categorically held that once the land is acquired and it vests in the State Government, the same is free from all encumbrances, it is not the concern of the land owner, whether the land is being used for the purpose for which it was acquired or for any other Page 9 of 10 C/SCA/15531/2008 JUDGMENT purpose.
4. So far as the submission of Mr. Chhaya regarding order dated 19.07.2002 is concerned, we are of the opinion that the same is belated. The petitioners did not ventilate any grievance regarding the same till 2008 and therefore we are not inclined to disturb the position which has been prevailing for these many years. It shall not be appropriate to entertain this writ petition after considerable delay. Therefore also this petition deserves to be dismissed.
5. Accordingly, petition is dismissed. Notice is discharged.
(K.S.JHAVERI, J.) (A.G.URAIZEE,J) divya Page 10 of 10