Patna High Court - Orders
Dinesh Chandra Thakur vs The State Of Bihar & Ors on 11 May, 2010
Author: Mihir Kumar Jha
Bench: Mihir Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
LPA No.1271 of 2009
DINESH CHANDRA THAKUR S/O SRI YOGENDRA
THAKUR VILL.- KANHAWA, P.S.- PARIHAR, DISTT.-
SITAMARHI ... Petitioner- Appellant
Versus
1. THE STATE OF BIHAR THROUGH SECRETARY,
REVENUE AND LAND REFORMS DEPARTMENT,
BIHAR, PATNA
2. THE PRINCIPAL SECRETARY, REVENUE AND LAND
REFORMS DEPARTMENT, GOVT. OF BIHAR, PATNA
3. THE COLLECTOR, SITAMARHI, P.S. & DISTT.-
SITAMARHI
4. THE DISTRICT LAND ACQUISITION OFFICER,
SITAMARHI
5. THE COMMANDANT, S.S.B. CAMP, AT
SHANTINAGAR, D.T.I CAMPUS DUMRA, P.S. DUMRA
DISTT.- SITAMARHI
... Respondents-Respondents
For the Appellant : Mr. Durganand Jha, Advocate
For the State : Mr. Lalit Kishore, A.A.G-3
-----------
PRESENT : Hon'ble the Chief Justice
Hon'ble Mr. Justice Mihir Kumar Jha
ORDER
( 11 /05/2010)
As per Mihir Kumar Jha, J.
Heard Mr. Durganand Jha, learned counsel for the appellant
and the learned counsel for the State.
2. In this intra-Court appeal the appellant- writ petitioner has
assailed the order of the learned Single Judge dated 28.8.2009 passed in
C.W.J.C. No. 10995 of 2009, disposing of the writ application of the
appellant- writ petitioner, as with regard to his prayer for his release of his
land already acquired and taken possession thereof by the Respondents
2
under the provisions of Land Acquisition Act, hereinafter referred to as
the Act, with an observation that he may take resort to any other remedial
measure under law.
3. Mr. Durganand Jha, learned counsel for the appellant-writ
petitioner, while assailing the aforementioned order has submitted that the
learned Single Judge's refusal to interfere in the subject matter of writ
petition was wholly unjustified inasmuch as once it was established by the
appellant writ petitioner, the owner of the land, that his land was acquired
and taken over possession by the Respondents without complying the
mandatory provisions of the Act, he ought to have been not relegated to
any other remedy because for statutory violation of the mandatory
provisions of the Act, the remedy under Articles 226 was the most
efficacious remedy.
4. In order to appreciate the aforesaid submissions, it would be
necessary to take stock of the relevant facts in brief as stated in the writ
petition. The appellant- writ petitioner claims to be the owner of the land
bearing Khata No. 360, Kheshra No. 2549, 2550 and 2543 measuring an
area of 1.86½ acres situated in village Kanhwa , P.S. Parihar in the
District of Sitamarhi and he was aggrieved by an action of the State of
Bihar in acquiring his aforesaid land for establishing the head office of
9th Battalion Seema Suraksha Bal (SSB) armed force of the Ministry of
3
Home of the Government of India without complying the mandatory
provisions for acquisition under the Act. Learned Counsel in this context
explained that the notice under Section 4 was never served personally on
the appellant writ petitioner nor he was afforded an opportunity to file his
objection under Section 5A of the Act and yet he was sought to be
dispossessed on the basis of more paper possession handed over by the
Land Acquisition Officer to the authorities of SSB officials even without
paying compensation to him in terms of Section 11 of the Act. In this
context he has also assailed the order of the District Land Acquisition
Officer dated 25.5.2009 rejecting the prayer of the appellant writ
petitioner for both releasing his land and/or making payment of
compensation of the Act to him on the ground of payment of such
compensation to another person and rejection of a similar prayer in
C.W.J.C. No. 1480 of 2007.
5. From the counter affidavit of the Respondents filed in the
connected writ petition it however becomes manifest that a land
acquisition proceeding was initiated for acquiring 2.50 acres of land in
village Kanhwa for establishing the headquarters of SSB functioning
under the Ministry of Home Affairs, Govt. of India, for which a
notification under section 4 of the Act was issued on 12.6.2006 and after
its being published in the district gazette, a copy of the said notice under
4
section 4 of the Act was personally served on Yogendra Thakur the father
of the appellant writ petitioner on 20.10.2006 as would be evident from
the counter affidavit of Annexure „A‟ filed in C.W.J.C.No. 1480/2007, the
earlier writ petition filed by the father of the appellant- writ petitioner. It
would also appear that such acquisition was made under the emergent
provisions by invoking section 17 of the Act and a declaration under
Section 6 of the Act made on 20.6.2006 was also in respect of the
aforesaid land which was published in the district gazette as well as in the
local newspaper local daily „Hindustan‟ on 20.6.2006. It also appears that
the notice under section 9 of the Act dated 18.12.2006 was also served on
the father of the appellant writ petitioner whereafter his father had filed an
application on 8.1.2007 before the District Land Acquisition Officer
raising certain objection to the said acquisition as is apparent from
Annexure 2 to his writ petition, C.W.J.C.No. 1480/2007.
6. The father of appellant- writ petitioner namely Yogendra
Thakur in fact on 5.2.2007 had filed his earlier writ petition, C.W.J.C.No.
1480/2007, wherein his prayer was to the following effect:
" i) For issuance of a writ in the nature of Mandamus
directing and commanding the respondents not to acquire the
land bearing Khata no. 360, Khesra No. 2549, 2550 and 2543
covering an area measuring 1.865 acres of land situated at
village Kanhera, P.S. Parihar, District Sitamarhi for the
purpose of establishing a SSB camp.
5
ii) For issuance of a writ in the nature of certiorari for
quashing the notice dated 18.12.2006 in Case No. 08/05-06
issued in Form 12 under Clauses 3 and 4 of Section 9 of the
Land Acquisition Act 1 of 1894 under the signature of the
Collector, Sitamarhi as contained in Annexure 1 to this writ
petition inviting the petitioner to state the nature of such
interest in the land and the amount and particulars of any
claim he may wish to prefer and his objections, if any to the
measurement made under section 8 of the Act.
iii) For issuance of an appropriate writ/ writs, direction/
directions, order/ orders holding the aforesaid case No. 8/05-
06 pending before the Collector, Sitamarhi with respect to
the land mentioned in Clause (i) to the instant petition to be
null and void for non observance of the mandatory
provisions of the law laid down under the Land Acquisition
Act, 1894."
7. In the said writ petition a counter affidavit was filed by the
respondents, a copy whereof was served on the counsel for the father of
appellant- writ petitioner on 10.4.2007 in which a specific stand was taken
that the grievance raised in the writ petition that there was no opportunity
given to the land holder writ petitioner i.e. father of the appellant to file
his objection under section 5A of the Act was wholly untenable, inasmuch
as the land was sought to be acquired under Section 17 of the Act by way
of emergent proceeding. The respondent, in fact had also by producing the
records of the land acquisition particularly the notice under section 4 duly
6
served on the father of the appellant writ petitioner had sought to repel
any and every challenge to the land acquisition proceeding made by the
father of appellant- writ petitioner in that writ application.
8. It has to be noted that neither the father of appellant- writ
petitioner had chosen to file any reply to the aforesaid counter affidavit
filed in C.W.J.C.No. 1480/2007 and on 14.1.2009 the counsel for the
father of appellant- writ petitioner after some arguments had sought
permission to withdraw his writ application which was accordingly
dismissed as withdrawn.
9. The father of the appellant- writ petitioner having thus failed
to get any relief in his writ petition C.W.J.C. No. 1480/2007 as with
regard to his challenge to the acquisition including the notice under
section 4, declaration under section 6 and the notice under section 9 of the
Act in respect of the land acquisition proceeding in question now the son
appellant writ petitioner inherited the legacy of litigation for the same
cause of action and he had made a fresh attempt initially by giving a legal
notice to the Commandant of SSB at Sitamarhi on 25/26.2.2009 wherein
on the basis of a judgment in Partition Suit No. 103/1973 dated 26.2.1974
and the decree dated 12.3.1974 had gone to claim that the notice under
section 4 of the Act was actually served on his father Yogendra Thakur
and not on him though he was the real owner of the land and as such, the
7
entire process of acquisition and taking over possession of his land was
wholly illegal. The said legal notice of the petitioner sent through one Sri
Mohan Kumar Singh Advocate was in fact aimed for payment of
enhanced compensation to him as also for maintaining status quo in
respect of the land in question. It also appears that the appellant- writ
petitioner simultaneously had also filed an application to the Collector of
Sitamarhi District that illegal possession handed over to the SSB should
be revoked and the land should be re-conveyed to him.
10. The legal notice sent by the appellant- writ petitioner to the
Commandant of SSB was replied by the Commandant on 2.3.2009
intimating that after completing the procedure of acquisition the District
Land Acquisition Officer, Sitamarhi on 9.7.2008 had handed over the
possession for which cost of the land had already been deposited earlier
by the defence establishment of Government of India in the Ministry of
Home affairs to the Government of Bihar through the District Land
Acquisition Officer. The reply of the legal notice of the appellant- writ
petitioner, therefore, had only contained an advice that any grievance with
regard to payment of compensation should be settled with the authorities
of the State of Bihar. It would not be necessary to refer to the clarification
of the appellant- writ petitioner dated 7.3.2009 to the aforementioned
reply to his legal notice by his Advocate to the Commandant of SSB,
8
Sitamarhi but then it relevant to mention here that application of the
appellant- writ petitioner before the Collector of Sitamarhi District for
release of the land and also questioning the entire land acquisition
proceedings was disposed of by an order dated 25.5.2009 by the District
Land Acquisition Officer recording therein that the land was acquired
after completing the prescribed procedure under the Act and handing over
the possession to the SSB on 9.7.2008.
11. It is this order dated 25.5.2009 which was assailed by the
petitioner by filing the connected writ application, C.W.J.C.No.
10995/2009 on 27.8.2009 wherein now the following prayers were made
by the writ petitioner, who is admittedly son of Yogendra Thakur, the
earlier writ petitioner of C.W.J.C.No. 1480/2007:
"i) Issuance of a writ in the nature of certiorari for quashing
the order dated 25.5.2009 passed by the District Land
Acquisition Officer, Sitamarhi in Record no. 8/2005-06
whereby and whereunder the application/ objection of
petitioner has been rejected without appreciating the proper
facts of the case and without appreciating the real fact that at
no stage of proceeding any notice was ever issued to
petitioner nor any notice was ever issued to petitioner nor
any opportunity of hearing was ever afforded to him at any
stage of the proceeding hearing was ever issued to petitioner
nor any opportunity of hearing was ever afforded to him at
any stage of the proceeding.
9
ii) Issuance of a consequential writ in the nature of
mandamus directing and commanding the respondents not to
acquire the land bearing Khata no. 360, Khesra no. 2549,
2550, 2543 measuring a total area of 1.86 ½ acres situated in
village Kanhwa P.S. Parihar, District Sitamarhi for the
purposes of establishing SSB Camp as those lands belongs to
petitioner and at no stage any proceeding under Bihar Land
Acquisition Act was started against the petitioner nor at any
stage of the proceeding any notice was issued to petitioner
nor any opportunity of being heard was ever allowed to
petitioner.
iii) Issuance of an appropriate declaration that in case
8/2005-06 with respect to the land bearing Khata no. 360
Kheshra No. 2559 and 2558 and 2543 and measuring an total
area 1.86 ½ acres 01 land situated in village Kanhwa is null
and void for non observation of the mandatory provision of
the land laid down under the Bihar Land Acquisition Act
because the lands in question belongs to petitioner and no
proceeding was ever initiated against him.
iv) Issuance of an appropriate direction directing and
commanding the respondent not to interfere in the peaceful
possession of the petitioner over the lands in question which
land have been provided to the petitioner vide judgment and
decree dated 26.2.1974 passed by Sub Judge Sitamarhi in
Title Suit No. 103/73 and since then the petitioner has been
paying the rent the Government by mulating the land under
separate Jamabandi."
10
12. The said writ petition has been disposed of by the learned
Single Judge by holding that the prayer for release/ withdrawal of land
from the proceedings was wholly belated and in fact not only possession
of such land had already been taken but its compensation by payment of
award had been also made to the person interested in the land and
therefore, the appellant- writ petitioner may take recourse to any remedial
measure under the law.
13. Mr. Durganand Jha, learned counsel appearing on behalf of
the appellant- writ petitioner would submit that there can be no dispute
that the land in question on account of judgment and decree of the civil
court was that of the appellant- writ petitioner and therefore, the
authorities could not have acquired the land by giving notice to some
other person or even making payment of compensation to some other
person. He has, accordingly, submitted that the observation made by the
learned Single Judge for taking recourse under law in effect would mean
that all the prayers of the petitioners in the writ application as with regard
to challenge to the land acquisition proceeding has been rejected.
14. In the opinion of this Court the learned Single Judge has
rightly refused to interfere in the concluded land acquisition proceedings,
inasmuch as the prayer of release of land after its being acquired is
impermissible. Section 48 of the Land Acquisition Act clearly lays down
11
that the Government can only withdraw from acquisition of such land of
which possession had not been taken. In the present case when the
possession of the land in question had already been handed over to SSB
on 9.7.2008 as is recorded in the impugned order of the District Land
Acquisition Officer dated 25.5.2009 rejecting the prayer of appellant- writ
petitioner to release his land, there was no question for exercise of such
power in view of the statutory embargo under section 48(1) of the Act.
15. The other grievance with regard to procedural infirmities
either in respect of notice under section 4, declaration under section 6 and
the notice under section 9 it has to be held that the writ application was
wholly belated, inasmuch as the same was filed on 27.8.2009 at a point of
time when not only the land had stood acquired and vested in the State of
Bihar in terms of Section 4 notification dated 12.6.2006 and section 6
declaration dated 20.6.2006 as also the notice under section 9 dated
20.12.2006 in a long drawn period of more than three years from the date
of Sections 4, 6 and 9 of the Act and in fact after more than one year of
even handing over of possession. Such delay by itself was/is fatal for
maintaining the writ application and the inordinate delay in filing of the
writ application by itself was sufficient for dismissing the writ application
as was held in the case of Keshav Pal & ors. vs. the State of Bihar & ors.,
reported in AIR 1985 Pat. 70.
12
16. Coming to the last grievance of the appellant- writ petitioner
that the compensation of the land in question, allegedly belonging to him
in view of the judgment and decree of partition suit is also wholly
misconceived. As per revenue record it was the father of the appellant-
writ petitioner, namely, Sri Yogendra Thakur, who was served with the
notice under section 4 and also notice under section 9 of the Act,
whereafter he had also filed his reply before the Collector under the Act.
It is this person who as per land revenue records was treated to be person
interested in the land and was paid the amount of award. It has to be noted
that though the name of the father, namely, Yogendra Thakur, has not
been mentioned in the order of the District Land Acquisition Officer dated
25.5.2009 but then from the reading thereof it becomes clear that the
compensation for the land claimed by the petitioner has already been paid
to some person. Thus, the question now which would emerge is only an
apportionment of compensation for which there is a clear provision under
section 30 of the Act which reads as follows:
" 30. Dispute as to apportionment- When the amount of
compensation has been settled under section 11, if any
dispute arises as to apportionment of some or any part
thereof or as to the persons to whom the same or any part
thereof is payable, the Collector may refer such dispute to the
decision of the Court."
13
17. Thus, in terms of the aforementioned statutory provision the
order of the learned Single Judge cannot be faulted wherein he has given
liberty to the appellant- writ petitioner to take resort to any remedial
measure under law. The only remedy which now remains for the
petitioner is to claim compensation and since the amount of compensation
has already been paid to the person interested in the land after service of
notice under sections 4 and 9 of the Act on such person as is apparent
from the counter affidavit containing the proof of such service of notice
on Yogendra Thakur, the father of the appellant- writ petitioner, no error
can be said to have been committed by the learned Single Judge who in
fact was quite considerate in making such observation instead of
dismissing the writ application on the ground of delay as also existence of
alternative remedy as with regard to apportionment of compensation.
18. That being so, we find no merit in this appeal and the same
is, accordingly, dismissed in the light of the observations made by the
learned Single Judge and also reiterated by us in this order. There would
be, however, no order as to costs.
I agree.
(Dipak Misra,C.J.) (Mihir Kumar Jha,J.)
Patna High Court
Dated, the 11th May, 2010
NAFR/Surendra