Madhya Pradesh High Court
Syed Manzer Ali Warsi vs The State Of Madhya Pradesh on 7 December, 2017
HIGH COURT OF MADHYA PRADESH; BENCH AT INDORE
Writ Petition No.4482 of 2016.
(Syed Mohammed Ali Warsi and others v/s Land Acquisition & Rehabilitation Officer,
Shajapur and others)
Writ Petition No.8356 of 2016.
(Abdul Shameem Patel and others v/s Land Acquisition & Rehabilitation Officer, Shajapur
and others)
&
Writ Petition No.345 of 2017.
(Syed Manzer Ali Warsi and others v/s State of M.P. and others)
Indore, Dated : 07.12.2017:-
Shri Tousif Warsi and Shri Pratyush Mishra, learned
counsel for the petitioners.
Shri Ramakant Sharma, learned Govt. Advocate for
the Respondents/State.
Smt. Anita Sharma, learned counsel for the Intervenor. The Respondents have filed an application for vacating the stay order, hence parties are heard on application for vacating stay order.
O R D E R THE writ petitioners in all these writ petitions are claiming themselves to be owner of land situated at Village Muradpura, Tehsil and District Shajapur and according to them they are still in possession and cultivating the same.
[2] The Commissioner, Ujjain vide notice dated 05.07.2004 has declared certain lands of Village Bordi, Londiya, Girvar, Patoli, Muradpura, Lakhamankhedi and Barwal, Tehsil and District Shajapur for acquisition for the public purpose i.e. for construction of Shajapur Bypass Road. Thereafter the said notice was published in the daily newspaper on 03.08.2004. Thereafter the State Government granted permission to invoke urgency clause under Section 17 (1) of the Land Acquisition Act, 1894 [in brief "the Act of 1894"] and that was published in Gazette Notification dated 10.09.2004. The Land Acquisition Officer issued notices to the land owners informing the land owners that Notification under Section 17 (1) of the Act of 1894 has been issued and possession would be taken within 15 days from publication of Notification under Section 9 (1) of the Act of 1894. After hearing objections submitted by the petitioners/land owners, vide Award dated 20.11.2004 the Land Acquisition Officer has passed the award for payment of compensation.
[3] In the year 2016 the petitioners have obtained certificate from the Sarpanch, Gram Panchayat that they are still in possession of the land. Thereafter the petitioners submitted representations under Section 24 (2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 [in brief "the Act of 2013"] that the entire land acquisition proceedings has been lapsed and thereafter filed the present petitions before this Court. While issuing notices to the Respondents, the interim protection in respect of dispossession was granted to the petitioners.
[4] The Respondent Nos.1 to 3 filed the return by submitting that the subject land was required for public purpose for construction of National Highway urgently, the answering Respondents applied the urgency clause under Section 17 (1) of the Act of 1894 and issued notice under Section 9 (1) of the Act of 1894 to the petitioners. Thereafter notice under Section 6 of the Act of 1894 was published and the award was passed. All the petitioners have received the amount of compensation as determined by the Land Acquisition Officer. The possession of the subject land has already been taken from the petitioners immediately after issuance of notice under Section 9 of the Act of 1894. The concerned officer who was looking after the matters has unfortunately died on 24.11.2006, therefore, the documents taking over the possession of subject land are not available and the Respondents are trying to trace out the documents.
[5] The National Highways Authority of India was not initially impleaded as Respondent but they filed an application for intervention and thereafter they were impleaded as Respondent No.4. By filing the reply, the Respondent No.4 has raised a preliminary objection that the land acquisition proceedings has been concluded way back in the year 2004 and then writ petitions are filed in the year 2016, therefore suffers from delay of 4204 days. It is further submitted that the Executive Engineer, PWD, National Highway No.3, Biaora sent a proposal to the Land Acquisition Officer vide letter dated 19.04.2004 to acquire the land of Village Muradpura Area 7.10 hectares of District Shajapur for development and construction of the road. Thereafter the Commissioner, Ujjain vide letter dated 18.03.2004 declared and applied the urgency clause under Section 17 (1) of the Act of 1894. The Notification under Section 4 of the Act of 1894 was published in the Gazette of State Government of Madhya Pradesh, Part-I dated 06.08.2004. The Land Acquisition Officer has registered a case for assessment of the compensation. Thereafter the declaration was made under Section 6 of the Act of 1894 in Official Gazette of State Government of Madhya Pradesh dated 10.09.2004. Thereafter objections were invited under sub-section (3) of Section 9 of the Act of 1894 from the land owners. The notices were served to all the land owners and they participated before the Land Acquisition Officer. On the basis of the market value of the land, the compensation was assessed and it was paid to the land owners. The possession was taken but thereafter the petitioners have made illegal possession by way of encroachment. The Respondents have requested them to vacate the land but with mala-fide intention they approached this Court in order to invoke the benefit of Section 24 (2) of the Act of 2013. Hence, prayed for dismissal of the writ petitions.
[6] Now the National Highways Authority of India has awarded the contract to M/s Biaora to Dewas Highway Private Limited for construction of Four laning of Biaora- Dewas from 426 to 566 kms of NH-3 under NHDP Phase IV on BOT (Toll) basis. The concession agreement has already been executed and because of the interim relief in these petitions, the work could not be started.
[7] Shri Tousif Warsi, learned counsel appearing on behalf of the petitioners submits that though the land has been acquired by way of Notifications under Sections 4, 6 and 9 of the Act of 1894 and thereafter award has been passed but the petitioners are still in possession over the land. Therefore, under Section 24 (2) of the Act of 2013 the entire proceedings deemed to have been lapsed as the physical possession of the land has not been taken from them. In support of his contention, he has placed reliance over the judgment passed by the Apex Court in the case of Pune Municipal Corporation v/s Harakchand Misirimal Solanki [(2014) 3 SCC 183] in which the Apex Court has held that under Section 24 (2) of the Act of 2013, the land acquisition proceedings initiated under the 1894 Act, by legal fiction, are deemed to have lapsed where award has been made five years or more prior to the commencement of Act of 2013 and the possession of the land is not taken or compensation has not been paid. He has further placed reliance over the judgment of the Apex Court in the case of Velaxan Kumar v/s Union of India [(2015) 4 SCC 325] in which it has been held that taking of possession by the State, mandatory requirement to follow due process of law. He has further placed reliance over the judgment of the Apex Court in the case of Prahlad Singh v/s Union of India [(2011) 5 SCC 386] in which the Apex Court has set-aside the order of the High Court in respect of recalling finding that the acquired land will be deemed to have been vested in the State Government. He has also placed reliance over the judgments in the case of Sheela Jawarlal Nagori v/s Kantilal Nathmal Baldota [(2014) 11 SCC 376]; Delhi Development Authority v/s Reena Suri [JT (2016) 291]; Karnail Kaur v/s State of Punjab [(2015) 3 SCC 206]; Rajiv Chowdhrie v/s Union of India [(2015) 3 SCC 541]; Delhi Development Authority v/s Sukhbir Singh [2016 AIR (SCW) 4275] and Lajja Ram v/s Union Territory, Chandigarh [(2013) 11 SCC 235].
[8] He further emphasized that Section 24 (2) of the Act of 2013 provides two eventuality and even one exists, the entire land acquisition proceedings deemed to have been lapsed. In the present case though the compensation has been paid to the land owners but they are still in possession and cultivating the land. Therefore, now they cannot be dispossessed because the entire proceedings gets lapsed and the Respondents are required to re-initiate the proceedings for acquisition of their land under the provisions of the Act of 2013.
[9] Shri Warsi, learned counsel further submits that the Respondents have not produced any material to show that in what manner they have taken possession of the land from the petitioners. Therefore, in absence of any material, the adverse inference is liable to be drawn against the Respondents.
[10] The Government Advocate and Smt. Anita Sharma, learned counsel for the Respondents submit that the land acquisition proceedings have already been concluded in the year 2004, possession has been taken and compensation has been paid to the land owners. Thereafter the petitioners have encroached over the acquired land, therefore, they cannot claim that the possession has not been taken from them. The land has been transferred to the Construction Agency and the work of construction of road is required to be started by virtue of execution of concession agreement. The provisions of Section 24 (2) of the Act of 2013 would not apply in the present case. Hence, prayed for dismissal of the writ petitions.
[11] In the present case initially the Notification under Section 4 of the Act of 1894 was issued. The Executive Engineer, PWD National Highway No.3 Biaora sent a proposal to the Land Acquisition Officer vide its Letter No.752/Executive Biaora dated 19.04.2004 to acquire the land of villages of Village Muradpura Area 7.10 hectares of District Shajapur for the development and construction of aforesaid road. The Executive Engineer also sent the valuation report along with survey numbers of the said village. The required amount for the disbursement to the villages whose land may be acquired was also deposited with the Land Acquisition Officer. The Commissioner, Ujjain Division vide it's Letter No.F-56/Reader-1 dated 18.03.2004 of State Government declared and applied the urgency clause under Section 17 of the Act of 1894. The publication of preliminary notification was made in Official Gazette of State Government of Madhya Pradesh Part-I dated 06.08.2004 under sub-section (1) of Section 4 of the the Act of 1894. Thereafter publication was also made in two daily newspapers circulating in the locality. It is also stated that the Land Acquisition Officer cause public notice of substance of such notification to be given at convenient places of the said locality. Thereafter the Land Acquisition Officer registered a Case No.4/A-82/03-04 for purpose of acquisition of land. After the publication under sub-section (1) of Section 4 of the Act of 1894, none of the claimant filed any objection under Section 5-A of the Act of 1894 within 30 days from the date of publication of notification before the Land Acquisition Officer. Thereafter the action was taken under Section 8 of the Act of 1894. The declaration was made under Section 6 of the Act of 1894 in the Official Gazette of State Government Part I dated 10.09.2004 by the Land Acquisition Officer for the acquisition of the land, area 7.10 hectares of villages of Village Muradpura and the publication was also made in two local newspapers - Akshar Vishav dated 13.09.2004 and Dainik Nirnayak dated 09.09.2004. After declaration under Section 6 of the Act of 1894, the objection under sub- section (3) of Section 9 of the Act of 1894 was invited from the claimants by the Land Acquisition Officer and cause public notice at convenient places or near the land to be taken stating that the Government intents to take possession of the land and regarding claims of compensation for all interested persons in such land. The Land Acquisition Officer served upon notices to the same effect on occupiers of such land and on all such persons known or believe to be interested therein. The Land Acquisition Officer decided the objections filed by the claimants on the basis of evidence produced and adduced before him.
[12] In the entire petitions and in the representations the petitioners have not stated that the amount of compensation has not been paid to them. They are emphasizing on the ground that the possession has not been taken from them, therefore, by virtue of Section 24 (2) of the Act of 2013 the land acquisition proceedings deemed to have been lapsed. In the case of Pune Municipal Corporation (supra), the Notification under Section 4 of the Act of 1894 was issued in the year 2003 followed by Notifications under Sections 6 and 9 of the Act of 1894 in the year 2008 certain land owners filed writ petition before the Bombay High Court challenging the acquisition proceedings and the validity of the award passed under the Act of 1894. The High Court has set-aside the land acquisition proceedings on the ground of non-compliance of Section 7 of the Act of 1894 and other statutory breaches. The issue of applicability of Section 24 (2) of the Act of 2013 came before the Apex Court in the SLP filed by Pune Municipal Corporation.
[13] In the present case, after issuance of Notification under Section 4 of the Act of 1894, the State Government granted permission to invoke Section 17 (1) of the Act of 1894 which is an urgency clause. Section 17 (1) of the Act of 1894 is reproduced below :-
"17. Special powers in case of urgency. - (1) In cases of urgency whenever the appropriate Government, so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in section 9, sub-section 1, take possession of any land needed for a public purpose. Such land shall thereupon vest absolutely in the Government, free from all encumbrances.
(2) Whenever, owing to any sudden change in the channel of any navigable river or other unforeseen emergency, it becomes necessary for any Railway Administration to acquire the immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a river-side or ghat station, or of providing convenient connection with or accesses to any such station, or the appropriate Government considers it necessary to acquire the immediate possession of any land for the purpose of maintaining any structure or system pertaining to irrigation, water supply, drainage, road communication or electricity, the Collector may immediately after the publication of the notice mentioned in sub-section (1) and with the previous sanction of the appropriate Government, enter upon and take possession of such land, which shall thereupon [vest absolutely in the Government free from all encumbrances :
Provided that the Collector shall not take possession of any building or part of a building under this sub-section without giving to the occupier thereof at least forty-eight hours notice of his intention so to do, or such longer notice as may be reasonably sufficient to enable such occupier to remove his movable property from such building without unnecessary inconvenience.
(3) In every case under either of the preceding sub-sections the Collector shall at that time of taking possession offer to the persons interested compensation for the standing crops and trees (if any) on such land and from any other damage sustained by them caused by such sudden dispossession and not excepted in section 24; and, in case such offer is not accepted, the value of such crops and trees and the amount of such other damage shall be allowed for in awarding compensation for the land under the provisions herein contained.
(3A) Before taking possession of any land under sub-section (1) or sub-section (2), the Collector shall, without prejudice to the provisions of sub-section (3)-
(a) tender payment of eighty per centum of the compensation for such land as estimated by him to the person interested entitled thereto, and
(b) pay it to them, unless prevented by some one or more of the contingencies mentioned in section 31, sub-
section (2), and where the Collector is so prevented, the provisions of section 31, sub-section (2), (except the second proviso thereto), shall apply as they apply to the payment of compensation under that section.
(3B) The amount paid or deposited under section (3A), shall be taken into account for determining the amount of compensation required to be tendered under section 31, and where the amount so paid or deposited exceeds the compensation awarded by the Collector under section 11, the excess may, unless refunded within three months from the date of Collector's award, be recovered as an arrear of land revenue].
(4) In the case of any land to which, in the opinion of the [appropriate Government, the provisions of sub-section (1) or sub- section (2) are applicable, the appropriate Government may direct that the provisions of section 5A shall not apply, and, if it does so direct, a declaration may be made under section 6 in respect of the land at any time after the date of the publication of the notification] under section 4, sub-section (1)."
[14] As per Section 17 of the Act of 1894, in cases of urgency whenever the appropriate Government so dirests, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in section 9, sub-section (1), take possession of any land needed for a public purpose and such land shall thereupon vest absolutely in the Government, free from all encumbrances. The language of Section 17 of the Act of 1894 is different from the language of Section 16 of the Act of 1894 where the Collector who has made an award, may take possession of the land. Under Section 17 of the Act of 1894 the Collector is entitled to take possession on expiration of fifteen days from the publication of notice under Section 9, sub-section (1). In these cases the notice under Section 9 of the Act of 1894 was issued to the petitioners, which is available on record, in which it is clearly mentioned that after fifteen days from publication of notice under Section 9 (1) of the Act of 1894, the possession would be taken. When the urgency clause under Section 17 of the Act of 1894 has been invoked, therefore, it cannot be disbelieved that the possession has not been taken from the land owners immediately after fifteen days from issuance of the notice. Now the burden lies on the petitioners to establish that they are in possession over the land. Except the certificate issued by the Sarpanch and the representations, no material has been produced before this Court to establish that they are in possession. The petitioners are large in number and disputed questions of fact are involved whether they are actually in physical possession or not and the same cannot be decided in the writ under Article 226 of the Constitution of India.
[15] In the case of National Thermal Power Corporation Limited v/s Mahesh Dutta [(2009) 8 SCC 339] the Apex Court has held that whether the possession of the acquired land had actually been taken over or not is a disputed question of fact and the High Court can determine this issue on the basis of even documentary evidence or affidavit. It has been further held that when the possession has been shown to have been taken over only in terms of sub-section (1) of Section 17 of the Act but also by grant of the certificate and other documents, it must be held to be applicable. The burden of proof could be discharged only by adducing clear and cogent evidence. Para 38, 39, 42, 43 and 44 are reproduced below :-
"38. We may now consider the question as to whether the issue as to whether possession of the acquired land had actually been taken over or not being a disputed question of fact could not have gone into by the High Court.
39. It is not a case where oral evidence was required to be taken. There is no law that the High Court is denied or debarred from entering into a disputed question of fact. The issue will have to be determined keeping in view the fact situation obtaining in each case. If a disputed question can be determined on the basis of the documents and/or affidavit, the High Court may not ordinarily refuse to do so. In a given case, it may also examine witnesses ... ... ... ... ... ... ... ...
... ... ... ... ... ... ... ...
42. In Balmokand Khatri (supra), it has been observed :-
"4. It is seen that the entire gamut of the acquisition proceedings stood completed by 17-4- 1976 by which date possession of the land had been taken. No doubt, Shri Parekh has contended that the appellant still retained their possession. It is now well-settled legal position that it is difficult to take physical possession of the land under compulsory acquisition. The normal mode of taking possession is drafting the panchnama in the presence of panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would tantamount only to illegal or unlawful possession."
43. Recently the question came up for consideration before a Division Bench of this Court in T.N. Housing Board v. Keeravani Ammal, [ (2007) 9 SCC 255 ], wherein it was held :-
"9. On the facts pleaded it is doubtful whether the Government can withdraw from the acquisition, since the case of the State and the Housing Board is that possession has been taken and plans finalised to fulfil the purpose for which the acquisition was made. There is no plea in the writ petition that a request for reconveyance was made in terms of Section 48-B of the Act as amended in the State of Tamil Nadu."
It was furthermore held :-
"15. We may also notice that once a piece of land has been duly acquired under the Land Acquisition Act, the land becomes the property of the State. The State can dispose of the property thereafter or convey it to anyone, if the land is not needed for the purpose for which it was acquired, only for the market value that may be fetched for the property as on the date of conveyance. The doctrine of public trust would disable the State from giving back the property for anything less than the market value. In State of Kerala v. M. Bhaskaran Pillai2 in a similar situation, this Court observed:
"4. ..... 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."
44. Furthermore the Collector under the Act was acting as a statutory authority. When possession has been shown to have been taken over not only in terms of sub-section (1) of Section 17 of the Act but also by grant of the certificate and other documents, illustration (e) of Section 114 of the Evidence Act 1872, must be held to be applicable. Once such a presumption is drawn the burden would be on the State to prove the contra. The burden of proof could be discharged only by adducing clear and cogent evidence. Not only the aforementioned documents but even the judicial records clearly show that the possession had in fact been taken."
[16] Recently in the case of Indore Development Authority v/s Shailendra (Dead) through LRs. [Civil Appeal No.20982 of 2017] vide order dated 07.12.2017, the Apex Court has directed to place the matter before Hon'ble the Chief Justice of India for appropriate orders for kind consideration to refer the Pune Municipal Corporation (supra) to a Larger Bench. The Apex Court has observed that every other issues arising which have been mentioned above but have not been considered in Pune Municipal Corporation (supra) should also be considered by the Larger Bench. Para 19 and 20 are reproduced below :-
"19. It was also urged that this Court is also bound to prevent the abuse of process of law. The cases which have been concluded are being revived. In spite of not accepting the compensation deliberately and statements are made in the court that they do not want to receive the compensation at any cost and they are agitating the matter time and again after having lost the matters and when proceedings are kept pending by interim orders by filing successive petitions, the provisions of section 24 cannot be invoked by such landowners.
20. There is already a reference made as to the applicability of section 24 in SLP [C] No.10742/2008 - Yogesh Neema & Ors. v. State of M.P. & Ors. vide order dated 12.1.2016. There are several other issues arising which have been mentioned above but have not been considered in Pune Municipal Corpn. (supra). Thus, here is a case where the matter should be considered by a larger Bench. Let the matter be placed before Hon'ble the Chief Justice of India for appropriate orders.
[17] The Division Bench of this Court in the matter of The M.P.Housing Board v/s State of M.P. [Writ Appeal No.939 of 2016] vide order dated 10.08.2017 has also deferred the hearing of the case regarding possession of land due to pending consideration before the Larger Bench of Hon'ble High Court as also the review petition is pending in respect of deposit of compensation in the matter of Pune Municipal Corporation (supra) and held as under :-
"Mr. Nagrath points out that there was an order of status quo regarding possession to be maintained in the year 2002 passed in the writ petition. The question whether the order of status quo passed by the Court will prejudice the rights of the acquisitioning authority, is subject matter of consideration before the Bench in Special Leave Petition (C) No.10742/2008 (Yogesh Neema & Ors. vs. State of M.P. & Ors.) wherein the following questions have been referred to the Larger Bench vide order dated January 12, 2016:-
"(i) Whether the conscious omission referred to in paragraph 11 of the judgment in Sree Balaji Nagar Residential Association vs. State of Tamil Nadu and others [ (2015) 3 SCC 353] makes any substantial difference to the legal position with regard to the exclusion or inclusion of the period covered by an interim order of the Court for the purpose of determination of the applicability of Section 24(2) of the 2013 Act?
(ii) Whether the principle of "actus curiae neminem gravabit", namely act of the court should not prejudice any parties would be applicable in the present case to exclude the period covered by an interim order for the purpose of determining the question with regard to taking of possession as contemplated in Section 24(2) of the 2013 Act?"
It may be noticed that another Civil Appeal No.4835/2015 arising out of the order of Full Bench of Punjab & Haryana High Court in Maharana Pratap Charitable Trust vs. State of Haryana and another in CWP No.6860/2007 (O&M) dated 24th December, 2014 on the question whether the doctrine of actus curiae neminem gravabit is applicable in respect of the proceedings under Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, is pending.
Since the matter regarding possession is pending consideration before the Larger Bench of the Hon'ble Supreme Court as also the Review Petition is pending in respect of deposit of compensation in the matter of Pune Municipal Corporation (supra), we do not find that the writ appeal can be dismissed at the very threshold.
W.A. No. 939/2016:
Since arguable questions are raised, the appeal is admitted for hearing.
The operation of the impugned order shall remain stayed in the meantime."
[18] In view of the above, the final hearing of these petitions are also deferred till the issue is finally decided by the Apex Court but in view of the aforesaid discussion, the interim order granted by this Court deserves to be vacated.
[19] The petitioners have never questioned the acquisition proceedings since 2004 and rather accepted the compensation. The present petitions are filed with the intention to get the more compensation under the new Act of 2013. Their land was acquired for public purpose for consideration of Dewas bypass road, therefore, the said project cannot permitted to be held up because of the pendency of these petitions. If the petitioners succeeds in these petitions, they would get extra amount of compensation under New Act of 2013.
[20] In view of the above, the interim order dated 01.07.2016 granted by this Court is hereby vacated.
Accordingly IA for vacating stay order stand disposed of.
[21] The petitioners are admitted for final hearing. [22] List these petitions for final hearing in due course.
Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Anl Kumar Sharma 2017.12.13 11:58:58
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