Gujarat High Court
Kunvarben Devrajbhai Nasit W/O ... vs Principal Secretary on 27 June, 2017
Bench: M.R. Shah, B.N. Karia
C/SCA/5623/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 5623 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH sd/
and
HONOURABLE MR.JUSTICE B.N. KARIA sd/
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1 Whether Reporters of Local Papers may be allowed to see NO
the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law as NO
to the interpretation of the Constitution of India or any
order made thereunder ?
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KUNVARBEN DEVRAJBHAI NASIT W/O RAMJIBHAI DAHYABHAI VADARIA &
4....Petitioner(s)
Versus
PRINCIPAL SECRETARY , REVENUE DEPARTMENT, & 1....Respondent(s)
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Appearance:
HIREN S SOMAIYA, ADVOCATE for the Petitioner(s) No. 1 5
Mr. DHAWAN JAISWAL ASST. GP/PP for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1 2
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE B.N. KARIA
Date : 27/06/2017
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.0. By way of this petition under Article 226 of the Constitution of India, the petitioners claiming to be heirs and legal representatives of the original owners have prayed for an appropriate writ, direction and order to regrant the land bearing revenue survey no. 57 of village Thorada Tal & Dist. Rajkot.
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2.0. The facts leading to the present petition in nutshell are as under:
2.1. That the land bearing Survey No. 57 of village Thorada, Tal:
Rajkot came to be acquired under the provisions of Land Acquisition Act, 1894 in the year 1962 for Seed Farm for Department of Agriculture and Cooperation. That at the relevant time, in the year 1962, the award under Section 11 of the Land Acquisition Act was declared and the original land owners was paid the compensation which came to be accepted. That at the relevant time the possession of the land in question was also taken over and same came to be used thereafter for Seed Farm. It appears that thereafter for Seed Farm. It appears that thereafter in the year 2001, the Seed Farm Thorada came to be closed and therefore, name of Government was mutated in the revenue record and the land was handed over the Collector, Rajkot. That the Collector on behalf of the State Government took the possession of the land in question in the month of July 2005. That thereafter, as the land in question was needed for another public purpose i.e. Tourism Department, State of Gujarat and therefore, the land in question was allotted to the Tourism Department for development of Tourism and Convention Center. By mutation entry no. 1136 dated 24.11.2008 the name of Tourism Department was mutated in the revenue records. That thereafter, the petitioners have preferred Special Civil Application in the year 2017 to regrant the land in question to them on the ground that the land in question is not needed for the purpose for which, it was acquired i.e. Seed Farm and that now the land is allotted to the Tourism Department.Page 2 of 9
HC-NIC Page 2 of 9 Created On Mon Aug 14 23:16:26 IST 2017 C/SCA/5623/2017 JUDGMENT 3.0. Shri Somaiya, learned advocate for the petitioners has vehemently submitted that as the land in question has remained in use for more than 40 years after the same was acquired and even now possession has been taken in the year 2008 to handover the possession to the Tourism Department the purpose for which land in question has been acquired has frustrated and / or the land in question is not needed for the purpose for which, it was acquired and therefore, the land be regranted to the petitioners for agricultural activities. It is submitted by Shri Somaiya, learned advocate for the petitioners that the petitioners are ready and willing to return the amount of compensation with interest which was paid to predecessors. No other submissions have been made.
Making above submissions, it is requested to allow / admit the present petition.
4.0. Present petition is vehemently opposed by Shri Jayswal, learned Assistant Government Pleader appearing on behalf of the State. It is submitted by Shri Jayswal, learned Assistant Government Pleader that at the outset, it is submitted that petition deserves to be dismissed on the ground of delay and laches. It is submitted that the land in question has been acquired as far as back in the year 1962 and the predecessor of the petitioners have been paid compensation at the relevant time and the possession of the land in question was also taken over from the predecessor in the year 196263. It is submitted that the petition has been preferred in the year 2017. It is submitted that therefore, the present petition deserves to be dismissed on thee ground of delay and laches.
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4.1. It is further submitted by Shri Jayswal, learned AGP that in fact once the land in question was acquired under the provisions of Land Acquisition Act, 1894 after following due procedure as required and original land owners had been paid the compensation and the possession of the acquire land has been taken over, as per Section 16 of the Land Acquisition Act, 1894, the land absolutely vest in the State Government / acquiring body. It is submitted that thereafter the original land owners had no right, title or interest in the land in question. It is submitted that as such there is no provision of regrant.
4.2. It is further submitted by Shri Jayswal, learned AGP that even after the land in question was acquired for Seed Farm and the possession of the land was taken over, the same came to be used as Seed Farm upto the year 2011. It is submitted that however thereafter the Seed Farm at Thorada came to be closed and therefore, the land in question was to be of the disposal of the State Government and thereafter as the land in question was needed by the Tourism Department for Convention Center, the same has been now alloted at the disposal of the Tourism Department. It is submitted that therefore, it cannot be said that the land in question has not been used at all since last 14 years as alleged by the petitioners.
Making above submissions and relying upon the decision of the Hon'ble Supreme Court in the case of Chandrasekaran and Another Vs. Administrative Officer and Others reported in (2012) 12 SCC 133, it is requested to dismiss the present petition.
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5.0. Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that by way of petition under Article 226 of the Constitution of India, the heirs and legal representative of the original land owners whose land has been acquired in the year 1962 have prayed for an appropriate writ, direction and order to regrant the land to them on the ground that the land in question acquired for Seed Farm, Department of Agriculture and Cooperation, State of Gujarat and now the same is allotted to Tourism Department the land in question is not needed for the purpose, for which, the same has been acquired. However, it is required to be noted that land in question has been acquired in the year 1962 after following due procedure as required under the provisions of Land Acquisition Act, 1894. At the relevant time, award under Section 11 of the Act came to be published and the original land owners / predecessors of the petitioner were paid the compensation. Even the possession of the land in question was already taken over for the purpose of Seed Farm and in fact the land in question was used for the Seed Farm, Thorada upto the year 2001. Under the circumstances, once the original land owners / predecessors of the petitioner were paid the compensation for the acquired land and the possession of the same was taken over from him and in fact the same came to be used subsequently for the Seed Farm, Thorada, for which, the land was acquired, considering Section 16 of the Land Acquisition Act, the land in question is absolutely vested in the State Government / acquiring body. That thereafter, neither original land owner nor the petitioners have any right, title or interest over the land in question.
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6.0. It is required to be noted that upto the year 2001, the land in question has been used for Seed Farm Thorada, however thereafter the Seed Farm came to be closed and thereafter as the land in question absolutely vested in the State Government / acquiring body and the land was needed for another public purpose, the land was put at the disposal of the State Government / Collector and thereafter as the land in question is needed by the Tourism Department for Convention Center, the same has been allotted to the Tourism Department in the year 2008. Under the circumstances, it cannot be said that the land in question is not used at all for last 40 years for the purpose for which the same was acquired as alleged by the petitioners. From the material on record, it appears that land in question was used upto 200001 for Seed Farm, Thorada. That thereafter, land in question is allotted to Tourism Department for another public purpose. Under the circumstances, the petitioners cannot claim regrant of the acquired land which has been acquired in the year 1961.
7.0. At this stage, decision of the Hon'ble Supreme Court in the case of Chandrasekaran and Another Vs. Administrative Officer and Others reported in (2012) 12 SCC 133 is required to be referred to. In the aforesaid decision in paragraph nos.25 to 31 Honble Supreme Court has observed and held as under;
"25. It is a settled legal proposition, that once the land is vested in the State, free from all encumbrances, it cannot be divested and proceedings under the Act would not lapse, even if an award is not made within the statutorily stipulated period. (Vide: Avadh Behari Yadav v. State of Bihar &. Ors., (1995) 6 SCC 31; U.P. Jal Nigam v. Kalra Properties (P) Ltd. (Supra); Allahabad Development Authority v.
Nasiruzzaman & Ors., (1996) 6 SCC 424, M. Ramalinga Page 6 of 9 HC-NIC Page 6 of 9 Created On Mon Aug 14 23:16:26 IST 2017 C/SCA/5623/2017 JUDGMENT Thevar v. State of Tamil Nadu & Ors., (2000) 4 SCC 322; and Government of Andhra Pradesh v. Syed Akbar & Ors., AIR 2005 SC 492).
26. The said land, once acquired, cannot be restored to the tenure holders/personsinterested, 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. 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. (AIR p.353, para 19) "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: (SCC p.802, para 5) "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 Page 7 of 9 HC-NIC Page 7 of 9 Created On Mon Aug 14 23:16:26 IST 2017 C/SCA/5623/2017 JUDGMENT 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: (SCC p.433, para 4)
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.
(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 Page 8 of 9 HC-NIC Page 8 of 9 Created On Mon Aug 14 23:16:26 IST 2017 C/SCA/5623/2017 JUDGMENT 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 nongrata 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 re convey 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.
8. In view of the above and for the reasons stated above, present petition fails and same deserve to be dismissed and is accordingly dismissed. Notice discharged.
sd/ (M.R. SHAH, J.) sd/ (B.N. KARIA, J.) Kaushik Page 9 of 9 HC-NIC Page 9 of 9 Created On Mon Aug 14 23:16:26 IST 2017