Gujarat High Court
Khengar Vasanbhai Chaiya (Ahir) vs National Highway Authority Of India & 5 on 4 May, 2017
Author: Harsha Devani
Bench: Harsha Devani
C/SCA/2387/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2387 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
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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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KHENGAR VASANBHAI CHAIYA (AHIR)....Petitioner(s)
Versus
NATIONAL HIGHWAY AUTHORITY OF INDIA & 5....Respondent(s)
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Appearance:
MR VIMAL A PUROHIT, ADVOCATE for the Petitioner
MR TIRTHRAJ PANDYA, ASSTT. GOVERNMENT PLEADER for the
Respondents No.3 - 5
MR VIBHOR CHAPLOT for M/s NANAVATI & CO., ADVOCATE for the
Respondents No. 1 - 2
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CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
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HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 04/05/2017
ORAL JUDGMENT
(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)
1. This petition under Article 226 of the Constitution of India is directed against a communication dated 08.12.2016 issued by the District Collector, Kutch, whereby he has ordered that the applications dated 10.12.2015 and 11.12.2015 made by the petitioner are filed, on the ground that in the year 1982-83, when the road came to be constructed on the land in respect of which compensation has been claimed by the petitioner, the petitioner was neither the occupant nor owner of such land and therefore, his claim for compensation is not reasonable.
2. It is the case of the petitioner as averred in the petition that being desirous of purchasing the lands bearing Survey No.170 admeasuring Acres 5 - 53 Gunthas, that is, Hectares Are 2-35-73 square metres and Survey No.171, admeasuring Acres 4 - 29 Gunthas, that is, Hectares Are 1-91-21 square metres, situated at Village Bhorara, Taluka Mundra, District Kutch (hereinafter referred to as "the subject lands"), wherein the names of Shri Mukesh Revashankar Rajgor and Shri Prabhaben Nanji and others were reflected, the petitioner made a detailed inquiry and after verification of the title and revenue record, purchased such lands by virtue of registered sale deeds No.2424 dated 16.09.2005 and No.3018 dated 26.09.2005 respectively, after making payment of full consideration. Pursuant to the said sale transactions, the name of the petitioner came to be mutated in the revenue record.
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3. It is further the case of the petitioner that the National Highway Authority of India (respondent No.1 herein) being desirous of building (widening/six laning etc.), maintenance, management and operation of the National Highway No.8A (Extension), issued a notification dated 08.10.2009 under section 3A(1) of the National Highways Act, 1956 (hereinafter referred to as "the Act"), wherein land admeasuring Hectares Are 0-55-17 square metres of Survey No.170 and land admeasuring Hectares Are 0-31-91 square metres of Survey No.171 was notified for acquisition. Pursuant thereto, the competent authority declared the award dated 25.11.2011 and by way of compensation order dated 20.06.2012, determined the compensation for the land shown to be under acquisition. The compensation for the land bearing Survey No.170 came to be determined at Rs.16,99,236=00 and the compensation for the land bearing Survey No.171 came to be determined at Rs.9,12,626=00. Such amount came to be received by the petitioner, which is not in dispute.
4. It appears that the petitioner accepted the compensation with objection and accordingly, approached the appropriate authority under the provisions of the Act for enhancement of the compensation, which is still pending. It is further the case of the petitioner that in the interregnum, possession of the entire site including the land acquired, was under the supervision of the respondent authorities and that various agencies of the respondents were functioning for construction of the extension of the National Highway for which the land was acquired and that consequently, the road was built and was further put to use and is at present in use. According to the petitioner, as soon as the construction of the road was Page 3 of 47 HC-NIC Page 3 of 47 Created On Sun Aug 13 23:17:27 IST 2017 C/SCA/2387/2017 JUDGMENT completed, the petitioner approached his remaining land which was left out after acquisition and to the utter shock and surprise of the petitioner, it was learnt that land much in excess of that acquired under the award/notification had been taken over, whereafter he approached a private land surveyor and got his land measured and found that land, to the extent of 3440 square metres of Survey No.170 and 5463 square metres of Survey No.171 had been taken over in excess of the land actually acquired in the acquisition proceedings. In view thereof, the petitioner addressed an application dated 05.06.2014 to the respondent authorities claiming compensation in respect of the remaining land, which according to him, had been taken over in excess of the present acquisition proceedings. In connection therewith, correspondence came to be entered into between the petitioner and the respondent authorities inter se, reference to which shall be made subsequently. Ultimately, the Collector, Kutch, by the impugned communication, informed the petitioner that his applications for compensation were being filed for the reasons stated therein. Being aggrieved, the petitioner has filed the present petition challenging the same.
5. Mr. Vimal Purohit, learned advocate for the petitioner vehemently assailed the impugned order by submitting that the present petition gives rise to several points for consideration as set out in the written submissions tendered by him, which read as follows:
"(1) Can the respondent-authorities have power to utilize/ dispossess any person (original owner or subsequent purchaser) from his/her privately owned land without acquiring such land under the provisions of the Land Acquisition Act?Page 4 of 47
HC-NIC Page 4 of 47 Created On Sun Aug 13 23:17:27 IST 2017 C/SCA/2387/2017 JUDGMENT (2) Can the conduct and inaction of the respondent authorities in not acquiring the land as per the provisions of the Land Acquisition Act be over-sighted, if the said land is in possession and utilization of the Government and such land is sold to subsequent purchaser by way of registered sale deed?
(3) Can the present petitioner as a subsequent purchaser of land in question, which is not acquired but whose possession is with respondent authorities, be deprived of his right to property on the ground that when the sale deed was executed, the possession of the land in question was not with the predecessor-in-title?
(4) Can the action of the respondent authorities in taking away possession of the land in question illegally, unlawfully, and utilizing the same for public purpose without following due procedure for acquisition be termed as legal and lawful if the predecessor-in-title had not claimed his rights?
(5) Can a State or Central Government body like the respondent-authorities have power to trespass the private property of the petitioner and would lapse of time nullify the action amounting to criminal trespass?
(6) Can the Constitutional Right under Article 300-A of the Constitution of India be infringed / taken away by unlawful, illegal, and void ab-intio actions of a body being an instrumentality of a State Government or Central Government?
(7) When a property is legally purchased by a person after following due process of law and under the provisions of the Transfer of Property Act, does not all the right, title and interest, whatsoever, pertaining to that property gets transferred in favour of the subsequent purchaser?
(8) Does the right to property of a citizen of India under Article 300-A of the Constitution extinct on account of delay, more particularly when the person initiated legal remedy as soon as he/she has the knowledge?
(9) Is subsequent purchaser not entitled to claim relief Page 5 of 47 HC-NIC Page 5 of 47 Created On Sun Aug 13 23:17:27 IST 2017 C/SCA/2387/2017 JUDGMENT against the State or Central Government authorities when his Constitutional Right to Property is infringed? "
5.1 Elaborating upon the same, the learned advocate submitted that the District Collector has grossly erred in rejecting the application for compensation of the excess land which had been acquired by the National Highway Authority of India, on the vague and arbitrary ground that the petitioner was not the owner and occupier of the land in question in the year 1982-83. It was submitted that the impugned communication dated 08.12.2016 is in violation of the principles of natural justice since before passing the impugned order, no opportunity of hearing was granted to the petitioner. It was submitted that the Collector has failed to appreciate that no record of acquisition of the subject lands being Survey No.170 and No.171 has been produced by any of the respondent authorities and that the Collector has grossly erred in not appreciating the fact that vide communication dated 21.02.2015, the office of the Executive Engineer, Road and Building Department (State), Bhuj-Kutch has opined that the DILR and R & B Department had conducted measurement survey in the year 1982-83 for the land in question, but after that measurement survey, no record pertaining to the acquisition of the land in question or of any compensation being paid to the land owners for the subject land is available with the office of the R & B Department and as no award was passed, the revenue record has also remained unchanged and no any entry for the acquisition of the additional land has ever been recorded in the revenue record. It was submitted that by a communication dated 22.09.2015, the second respondent had opined Page 6 of 47 HC-NIC Page 6 of 47 Created On Sun Aug 13 23:17:27 IST 2017 C/SCA/2387/2017 JUDGMENT that the additional land which has not been acquired earlier by any of the following two methods, viz. (i) through award, which is very time consuming as the land will have to be acquired through notifications under sections 3A, 3D and 3G as per the National Highways Act, 1956, and (ii) through consent award, in which case, the rates will be taken at the rates considered in the award for the adjoining lands. It was submitted that the respondent authorities are unable to produce any record of acquisition of the subject lands and that the respondent Collector ought to have considered that the petitioner has been deprived of his private property without getting any compensation as the same has been erroneously acquired/ utilized for public purpose without following the due process of law.
5.2 Mr. Purohit further submitted that the approach of the respondent authorities clearly reflects that the possession of the land of the petitioner was taken over by the respondent authorities without recourse to law and in violation of the provisions of Article 300-A and the second proviso to Article 31A(1) of the Constitution of India and the provisions of Land Acquisition Act, 1894.
5.3 In support of his submissions, the learned advocate placed reliance upon the decision of the Andhra Pradesh High Court in the case of K. Sai Reddy v. Deputy Executive Engineer, Irrigation and Command Area Development, Nampally, Hyderabad, 1995 LawSuit (AP) 116, wherein the court Page 7 of 47 HC-NIC Page 7 of 47 Created On Sun Aug 13 23:17:27 IST 2017 C/SCA/2387/2017 JUDGMENT has observed thus:
"[7] Article 300-A of the Constitution provides that no person shall be deprived of his property save by authority of law, whereas the second Proviso to Article 31A(1) of the Constitution provides that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof.
[8] Article 300A has been inserted by the Constitution (44th Amendment) Act, 1978: Prior to this amendment the right to property was guaranteed by Article 31. While clause (1) of that Article has been shifted from Part III to Article 300A, clause (2) of that Article, which dealt with compulsory acquisition of property, has been repealed. Further sub-clause(f) of clause (1) of Article 19 which guaranteed the right to acquire and hold property, has also been omitted by the same, 44th Amendment Act, 1978. The result of these changes, in short, is that the right to hold property has ceased to be a fundamental right under the Constitution of India and it has been left to the Legislature to deprive a person of his property by the authority of law. The Madras High Court in the case of Shanthalakshmi v. State of Tamil Nadu, has held that a law covered by Art. 300A can still be challenged on the ground that the restrictions imposed by it are unreasonable within the meaning of Art. 19. The Court, however, did not consider what would be the effect of repealing the relevant fundamental right to property under sub-clause (f) of Art. 19(1) but rested its judgment on the observations, generally made, by the Supreme Court in the case of Maneka Page 8 of 47 HC-NIC Page 8 of 47 Created On Sun Aug 13 23:17:27 IST 2017 C/SCA/2387/2017 JUDGMENT Gandhi v. Union of India. The question whether the view taken by the Madras High Court is correct or need not be gone into for the purpose of deciding the present case because the Court, in this case, finds that the property of the petitioners was taken away by the executive action on 20-1-1989 supported by and in excess of the authority conferred by the Land Acquisition Act and Article 300A of the Constitution and therefore it is permissible for the petitioners to seek appropriate remedy from this Court under Article 226 of the Constitution." (At Annexure II to the petition)"
5.4 Reference was also made to the decision of the Supreme Court in the case of Tukaram Kana Joshi and others, Through Power of Attorney Holder v. M.I.D.C. and others, 2012 LawSuit (SC) 743 (2103) 1 SCC 353, wherein it has been observed thus:
"8. The appellants were deprived of their immovable property in 1964, when Article 31 of the Constitution was still intact and the right to property was a part of fundament- al rights under Article 19 of the Constitution. It is pertinent to note that even after the right to property ceased to be a fundamental right, taking possession of or acquiring the property of a citizen most certainly tantamounts to depriva- tion and such deprivation can take place only in accordance with the "law", as the said word has specifically been used in Article 300-A of the Constitution. Such deprivation can be only by resorting to a procedure prescribed by a statute. The same cannot be done by way of executive fiat or order or administration caprice. In Jilubhai Nanbhai Khachar v. State of Gujarat, AIR 1995 SC 142, it has been held as follows:
"48. In other words, Article 300-A only limits the powers of the State that no person shall be deprived of his property save by authority of law. There [is] no deprivation without [due] sanction of law. Deprivation by any other mode is not acquisition or taking possession under Article 300-A. In other words, if there is no law, there is no deprivation."
9. The right to property is now considered to be not only a constitutional or a statutory right but also a human right. Though, it is not a basic feature of the Constitution or a fun-
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damental right. Human rights are considered to be in realm of individual rights, such as the right to health, the right to livelihood, the right to shelter and employment, etc. Now however, human rights are gaining an even greater multifa- ceted dimension. The right to property is considered very much to be a part of such new dimension. (Vide Lachhman Dass v. Jagat Ram, (2007) 10 SCC 448, Amarjit Singh v. State of Punjab, (2010) 10 SCC 43, State of M.P. v. Narmada Bachao Andolan, AIR 2011 SC 1989, State of Haryana v. Mukesh Kumar, AIR 2012 SC 559 and Delhi Airtech Services (P) Ltd. v. State of U.P., AIR 2012 SC 573)
10. In the case at hand, there has been no acquisition. The question that emerges for consideration is whether, in a democratic body polity, which is supposedly governed by the rule of law, the State should be allowed to deprive a citizen of his property, without adhering to the law. The matter would have been different had the State pleaded that it has right, title and interest over the said land. It however, con- cedes to the right, title and interest of the appellants over such land and pleads the doctrine of delay and laches as grounds for the dismissal of the petition/appeal."
5.5 Insofar as the maintainability of this petition under Article 226 of the Constitution of India is concerned, the learned advocate placed reliance upon the decision of the Andhra Pradesh High Court in the case of Vemula Prabhakar v. Land Acquisition Officer and Revenue Divisional Officer, Peddapalli, Karimnagar District, 2001 LawSuit (AP) 1225, wherein it has been held thus:
"[18] In B. LINGA REDDY (supra) it was held:
If the compensation is not paid after such acquisition and dispossession, pursuant to the said acquisition the fundamental right hitherto available under Article 31 of the Indian Constitution or the constitutional guarantee, which is now provided under Article 300A of the Constitution will get violated. The right to acquire a person's property under the Lane Acquisition Act is coupled with a duty to pay compensation and it Page 10 of 47 HC-NIC Page 10 of 47 Created On Sun Aug 13 23:17:27 IST 2017 C/SCA/2387/2017 JUDGMENT is implied in the said duty that the said compensation payable should be paid as expeditiously as possible. If there is either failure to pay compensation or if there is an abnormal delay in payment of compensation, there will be violation of fundamental right, which was hitherto available under Article 31 of the Indian Constitution and constitutional guarantee, which is now available under Article 300A of the Constitution of India, and whenever such a violation is pointed out, a Constitutional Court like this, cannot be a silent spectator and has to step in to issue a writ to set the things right and to remedy the situation so that the Constitutional obligation of the Government is duly discharged. No fetters can be placed on the powers of this court to invoke the extraordinary jurisdiction under Article 226 of the Constitution of India. The mere fact that remedy is available by way of execution petition under the provisions of Code of Civil Procedure, shall not prevent a Constitutional Court if a situation of this nature arises to exercise the powers of writ jurisdiction. By the way, what is available in execution in a decree against the Government? It is only rickety chairs and tables, which cannot satisfy even a fraction of the decree and in fact several such decrees will be pending so also attachments after attachments. That will not serve the real purpose and effectual justice is not done by following that technical procedure. Courts are not sitting for doing technical justice in just following the procedure. Steps have to be taken to do effectual justice. In execution proceedings for failure to discharge the decree, a power vests in the Civil Court to detain the judgment debtor in civil prison till the decree is discharged. But, in the instant case, against a Governmental decree, who is to be put in prison? It cannot be an officer who is presently holding the post of a Land Acquisition Officer. It is certainly impossible to trace a person in a case like this to put him in civil prison.
[19] In K. MURALIDHAR REDDY (supra) it was held: Thus, it is evident from the ratio decidendi laid down by the Supreme Court that a High Court under Article 226, in given circumstances, can Page 11 of 47 HC-NIC Page 11 of 47 Created On Sun Aug 13 23:17:27 IST 2017 C/SCA/2387/2017 JUDGMENT issue a writ of mandamus or a direction to compel performance in a proper and lawful manner of the discretion conferred upon the Government or the public authority in order to prevent injustice resulting to the concerned parties. The entire history of the case would undoubtedly go to show that injustice has been done to the petitioners whose lands have been acquired way back in 1981. Even after 12 years, the legitimate compensation if denied to the petitioners, can this not be termed as Injustice' done to the petitioners? I have no doubt in my mind to hold that injustice is done to the petitioners on one pretext or the other. The mere pendency of appeals or alternative remedy in execution proceedings cannot be a ground for the respondents to excuse themselves in discharging their obligation which they are bound to discharge. Therefore, in my considered view, this Court is competent to direct the respondents to act upon and pay the compensation to the petitioners.
[20] In ANIL CHANDRA CHOUDHURY (supra) wherein one of us (S.B. Sinha, CJ) was a member, the Calcutta High Court was considering a case where possession had been taken without faking recourse to the provisions of the Act. It was in that situation the Court observed:
Right to hold the property is a constitutional right as envisaged under Article 300(A) of the Constitution of India. No person can be deprived of his right to hold a property except in accordance with law. The fact remains that in terms of the judgment delivered by K.M. Yusuf, J., the petitioner has been deprived of such a right and thus he is entitled to be compensated. The question that such an order of compensation can be passed to determine and pay to the petitioner by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India is no longer res integra as by reason of its acts of commission or omission the State must be held to be guilty of commission of constitutional tort in view of the fact that the petitioner has been deprived of his lawful right declared in his favour by a judgment of this Court."Page 12 of 47
HC-NIC Page 12 of 47 Created On Sun Aug 13 23:17:27 IST 2017 C/SCA/2387/2017 JUDGMENT 5.6 Mr. Purohit submitted that there can be no deprivation without due sanction of law. In the present case, the predecessor-in-title of the petitioner has been dispossessed of his property without any sanction of law and the petitioner has stepped into the shoes of his predecessor-in-title, and hence, the petitioner's right to hold property has been violated as the subject lands have been acquired without following any procedure under any law. It was submitted that even if it is assumed for the sake of assumption that the petitioner has purchased the subject lands with open eyes knowing well that a road is passing through such lands and that his predecessor-in-title was dispossessed without due sanction of law and no compensation has been given to his predecessor-in- title, even then, the petitioner has a right to challenge such action on the part of the respondent authorities which is clearly in violation of Articles 31 and 300-A of the Constitution of India, despite the fact that his predecessor-in-title had never challenged the same. It was submitted that even the lapse of time cannot take away the right to property as the same is a constitutional right as recognized by the Supreme Court time and again. It was submitted that the respondent-authorities have not produced any documents to show that the subject lands were ever acquired by them and compensation was paid by them to his predecessor-in-title and the said fact reflects the conduct and inaction of the respondent authorities which is in violation to Article 31 and 300-A of the Page 13 of 47 HC-NIC Page 13 of 47 Created On Sun Aug 13 23:17:27 IST 2017 C/SCA/2387/2017 JUDGMENT Constitution of India.
5.7 It was urged that when the highest court of law in a State comes across any instance, wherein a person is deprived of his legitimate right to property and has been dispossessed without due sanction of law by an instrumentality of State or Central Government, then this court should interfere in such matter to rectify the injustice done to that person in exercise of the extraordinary power vested in it under Article 226 of the Constitution of India.
5.8 On the aspect of locus of the petitioner being a subsequent purchaser to challenge the action of the respondent authorities, the learned advocate for the petitioner placed reliance upon the following decisions:
[1] Decision of the Supreme Court in the case of Union of India v. Iqbal Singh, AIR 1976 SC 211.
[2] Decision of the Supreme Court in the case of Khorshed Shapoor Chenai v. Assistant Controller, (1980) 2 SCC 1.
[3] Decision of the Supreme Court in the case of Union of India v. Shivkumar Bhargava and others , AIR 1995 SC 812.
[4] Decision of the Allahabad High Court in the case of District Manager, Food Corporation of India Page 14 of 47 HC-NIC Page 14 of 47 Created On Sun Aug 13 23:17:27 IST 2017 C/SCA/2387/2017 JUDGMENT and others v. Kailash Chand and others , 2013 Lawsuit (all) 3510.
[5] Decision of the Supreme Court in the case of U. P. Jal Nigam v. Kalra Properties, 2013 Lawsuit (SC)
125. [6] Decision of the Allahabad High Court in the case of Asian Townsville Farms Ltd. v. State of U. P. and others, 2016 Lawsuit (All) 1304.
[7] Decision of the Allahabad High Court in the case of Radha Soami Satsang Beas v. State of Uttar Pradesh and others, 2016 Lawsuit (All) 1629.
[8] Decision of the Allahabad High Court in the case of Jal Sansthan, Agra v. Krishna Kumari, 2016 Lawsuit (All) 3803.
5.9 The learned advocate for the petitioner submitted that in the present case, the situation is even worse as no procedure for acquisition of the subject lands has ever been initiated. It was submitted that the present petitioner being the subsequent purchaser of such lands which have never been acquired, has right, title and interest in the same and has the locus standi to challenge the action of the respondent authorities in taking the land without following due process of law. It was, accordingly, urged that the impugned order being neither legal nor proper and the findings being perverse, the same deserves to be quashed and set Page 15 of 47 HC-NIC Page 15 of 47 Created On Sun Aug 13 23:17:27 IST 2017 C/SCA/2387/2017 JUDGMENT aside and the petition deserves to be allowed in terms of the reliefs prayed for in therein.
6. From the facts as emerging from the record of the petition as placed before this court, it appears that the petitioner has purchased land bearing Survey No.170, admeasuring Hectares Are 2-35-73 square metres, situated at Village Bhorara, Taluka Mundra, District Kutch by way of registered sale deed dated 16 t h September, 2005 for a sum of Rs.30,000/- (which would come approximately to Rs.1.3 per square metre). Similarly, by a registered sale deed dated 26 t h September, 2005, the land bearing Survey No.171, admeasuring Hectares Are 1-91-21 square metres, situated at Village Bhorara, Taluka Mundra, District Kutch has been sold to the petitioner for a sum of Rs. 25,000/- (approximately Rs.1.3 per square metre). A perusal of the sale deeds in question reveals that the same do not refer to any existing road passing through the lands.
7. As noticed earlier, it is the case of the petitioner that land admeasuring 5517 square metres from Survey No.170 and the land admeasuring 3191 square metres from Survey No.171 came to be acquired pursuant to a notification dated 08.10.2009 issued under section 3A(1) of the Act and the proceedings subsequent thereto, which resulted into an order of compensation, pursuant to which compensation came to be paid to the petitioner and that the petitioner being dissatisfied with the same, has approached the Page 16 of 47 HC-NIC Page 16 of 47 Created On Sun Aug 13 23:17:27 IST 2017 C/SCA/2387/2017 JUDGMENT appropriate authority for enhancement thereof. It is the case of the petitioner that during the interregnum, the petitioner has visited the remaining land and to his utter shock and surprise, found that the land in excess of the acquisition had been taken over by the respondent authorities. The petitioner, thereafter, addressed a letter dated 19.07.2014 to the second respondent and the DILR to verify the extent of land that had gone in the road and to give a clear report thereon.
8. Various other correspondence has been entered into which shall be referred to hereinafter. However, from the facts as emerging from the record, a road in the nature of a state highway appears to have been laid over the disputed land somewhere in the year 1982-83. Such state highway was declared to be a national highway sometime in the year 2000. Thus, right from around the year 1982-83, there was an existing state highway occupying the portion of the land in respect of which the dispute has been raised in this petition. The petitioner has purchased the lands bearing Survey No.170 and No.171 in September, 2005. Evidently therefore, the petitioner could not have been oblivious to the national highway passing through the lands purchased by him. It may be that the sale deed executed between the parties may have mentioned the entire land of Survey No.170 and No.171, including the land forming part of the national highway, however, that by itself would not detract from the fact that the petitioner had purchased the Page 17 of 47 HC-NIC Page 17 of 47 Created On Sun Aug 13 23:17:27 IST 2017 C/SCA/2387/2017 JUDGMENT land with an existing national highway passing through it.
9. Significantly, nothing had been stated by the petitioner as to when and how the possession of the land for the road was taken over, when was the road built on the land, and as to whether or not any claim for compensation had been made at the relevant time. The petitioner himself, despite claiming to have purchased the entire parcel of land including the land that is forming part of the national highway, has right from the year 2005, chosen to remain silent and has not raised any dispute for several years. Subsequently, the respondents No.1 and 2 have sought to acquire land for widening the existing national highway, pursuant to which the proceedings for acquisition came to be commenced in the year 2009, which culminated into an award dated 20 t h June, 2012 and compensation has already been paid to the petitioner for the land so acquired. Now, the petitioner has come out with an incredulous case that while the proceedings were pending before the arbitrator for enhancement of compensation, the possession of the entire land, including the land acquired was under the supervision of the respondent authorities and a road was built and was further put to use and is presently in use; that as soon as the construction of the road was completed, the petitioner approached the remaining land which was left out after acquisition and to the utter shock of the petitioner, he learnt that land far in excess had been acquired as compared to the Page 18 of 47 HC-NIC Page 18 of 47 Created On Sun Aug 13 23:17:27 IST 2017 C/SCA/2387/2017 JUDGMENT notification, whereupon the petitioner got the land measured and entered into correspondence with different authorities.
10. Pertinently, in the entire petition, there is nary a whisper about any existing national highway or any other road passing through the lands bearing Survey No.170 and No.171, which as per the record is in existence since 1982-83 or thereabout. The petitioner, in fact, has feigned total ignorance about the existence of the road and has come out with a story that he was shocked to find that possession of lands in excess of the acquisition had been taken over. Clearly therefore, the petitioner has not approached this court with clean hands, and has suppressed relevant facts and seeks to mislead the court into believing that the entire land, including the land forming part of the pre- existing national highway, has been taken away during the course of the present acquisition. The petitioner, therefore, is not a person who can be entrusted with a writ of this court and the petition deserves to be dismissed on this count alone.
11. Examining the case on merits, in the memorandum of the petition, it has been averred that after discovering the above fact regarding land in excess of the acquisition having been taken over, the petitioner addressed an application dated 05.06.2014 to the respondent authorities stating that the measurement carried out by the respondents for the purpose of payment of compensation is erroneous and Page 19 of 47 HC-NIC Page 19 of 47 Created On Sun Aug 13 23:17:27 IST 2017 C/SCA/2387/2017 JUDGMENT is not as per the acquired land. Thus, before the respondent authorities, the petitioner has put up a case as if the entire land, including the land forming part of the existing road, has been acquired in the present acquisition. The petitioner also addressed a letter dated 19.07.2014 to the second respondent and the DILR seeking an opinion on the above letter dated 05.06.2014. By a communication dated 07.07.2014, one KM Toll Road Private Limited informed the second respondent that it is found that total area of Survey No.170 is 2-35-73 Hectares and Survey No.171 is 1-91- 21 Hectares, and an area of 0-55-17 Hectares out of Survey No.170 and an area of 0-31-91 Hectares out of Survey No.171 have been acquired for 4/6 lane road. Subsequently, award was passed and payment was also received by the land owner - Mr. Gangar Vasanbhai and that in the 7/12 forms also, the name of Kandla - Mundra National Highway No.8A has been entered in respect thereof. It is further stated therein that in the JMS it is mentioned that an area of 0-54-63 hectares of Survey No.170 and area of 0-34-40 hectares of Survey No.171 has already been acquired for old road, but this area has neither been considered nor calculated in the village form 7/12 and that they have requested to forward this case to the DILR, Bhuj for verification of "Aghov Ni Road Kapath" (land deducted in the earlier road). Thereafter, the petitioner addressed another communication dated 05.06.2014 to the Competent Authority, National Highway Authority of India and Sub Divisional Magistrate, Bhuj-Kutch, requesting for payment of Page 20 of 47 HC-NIC Page 20 of 47 Created On Sun Aug 13 23:17:27 IST 2017 C/SCA/2387/2017 JUDGMENT compensation in respect of the lands acquired in excess of the acquisition.
12. It appears that a re-survey came to be made of the acquired lands and a map was prepared which reflected that lands admeasuring 5463 square metres and 3440 square metres of Survey No.170 and No.171 respectively, had been acquired earlier as per the measurement sheet bearing No.M.R. No.5/51/82-83. It appears that in the meanwhile, the petitioner addressed a notice dated 26.12.2014 to the first respondent through his advocate, stating that after determination and receipt of compensation for the acquired lands, upon actual verification, it has been found that work is being carried out on lands in excess of the acquisition to the extent of 5463 square metres out of Survey No.170 and 3440 square metres out of Survey No.171, and calling upon the respondents to desist from starting work of construction of the road till the petitioner is awarded compensation for the said lands. Thus, though the petitioner was well aware of an existing road on the subject lands, he has dishonestly attempted to include the land forming part of the existing road with the present acquisition by alleging that work is going on upon the land in excess of the acquisition. Thus, while the original owner has remained silent from the year 1982-83, the petitioner who has come into the picture in the year 2005 and has also not thought it fit to raise any dispute so far, has now, under the guise of the present acquisition proceedings, which relate to widening of the existing Page 21 of 47 HC-NIC Page 21 of 47 Created On Sun Aug 13 23:17:27 IST 2017 C/SCA/2387/2017 JUDGMENT road, tried to pressurize the respondents to pay compensation in respect of lands which do not form part of the present acquisition.
13. Thereafter, the Executive Engineer, State Highways Department addressed a letter dated 08.01.2015 which says that the Gandhidham-Anjar- Mokha-Bharara-Pragpar-Koday-Mandvi road was upgraded from a State Highway and declared to be a National Highway in the year 2000. It is further stated that during the period between 2000 to 2011 when the road was with the said department, that office had not carried out any acquisition proceedings and has not paid any kind of compensation for the land acquisition. It is further stated that the Roads and Building Department (State) has not handed over any record relating to land acquisition to that office. It is further stated that prior to 2000, the land was with the Roads and Building Department (State), Bhuj. Thus, all that the said authority says is that no acquisition was carried out by the said department between 2000 to 2011.
14. By a letter dated 12.01.2015, the DILR, Kutch, Bhuj informed the second respondent and another that joint measurement of the land in question was carried out on 27.07.1983, however, since no copy of any award made in respect of such land was forwarded to the said office, no further action has been taken in connection therewith. Surprisingly, the fifth respondent, Executive Engineer, Roads and Building Page 22 of 47 HC-NIC Page 22 of 47 Created On Sun Aug 13 23:17:27 IST 2017 C/SCA/2387/2017 JUDGMENT Department, Bhuj has addressed a letter dated 21.02.2015 to the second respondent informing that after measurement was carried out in the year 1982- 83 for Pragpur-Gundala Road, no proposal was sent for acquisition of land belonging to private owners and that no award has been declared and no compensation has been paid and that the said office has not constructed the road. Thus, the fifth respondent does not appear to be aware of the fact as to when and how the road came to be constructed on the subject land which was in existence since more than thirty years prior to the present acquisition. However, the petitioner places strong reliance on this letter for the purpose of contending that no acquisition had ever taken place. It appears that thereafter, the petitioner through his advocate once again addressed a letter dated 15.05.2015 to the second respondent, who in turn addressed a letter dated 17.06.2015 to the Competent Authority to Land Acquisition and Sub- Divisional Magistrate, Bhuj which reads thus:
"Immediate matter pertains to your letter dated 29.04.2015 and 03.01.2015 regarding the area of land acquired for NH-8A (Extn) in the survey no.170 and 171. In this regard we would like to draw your kind attention towards this office letter no. D-1627 dated 19.07.2014. Same matter was raised by Mr. Khengar Vasanbhai Ahir vide his letter dated 05.06.2014 addressed to your office under endorsement to this office. Matter was reviewed by us and it was found that NHAI, for 4/6 laning of Kandla-Mundra project had acquired 0.5517 Ha. from survey no.170 and 0.3191 Ha. from survey no.171. Accordingly new 7-12 is created in the name of Kandla-Mundra NH-8A as 170/P1 and 171/P1 for the above Page 23 of 47 HC-NIC Page 23 of 47 Created On Sun Aug 13 23:17:27 IST 2017 C/SCA/2387/2017 JUDGMENT mentioned area. In JMS [joint measurement survey] it is mentioned that area of 0.5463 Ha. in survey no.170 and area of 0.3440 Ha. in survey no.171 is already acquired for old road. All this information was provided to Mr. Khengar Vasanbhai Ahir vide this office letter no.D-1627 dated 19.07.2014 and copy of which was endorsed to your office as well.
Copies of the above referred letters are enclosed with this letter also for your ready reference. This is for your information and necessary action at your end please."
15. By a communication dated 01.07.2015, the Competent Authority informed that as per the letter dated 30.06.2015 of the DILR, the lands of all the survey numbers of village Bhorara, of which joint measurement was carried out in 1982-83, fall within acquisition of privately owned lands for the Kandla- Mundra National Highway No.8-A (Widening) and hence, a proposal be sent for acquisition of the said lands under the National Highways Act, 1956. Thereafter, the competent authority has addressed another identically worded letter dated 22.07.2015 to the second respondent.
16. In response to the above letters, the second respondent addressed a letter dated 20.08.2015 to the competent authority informing him that as per the review of the records available with them, it was found that the area of land for which the applicant is requesting for compensation was already acquired for existing road. It was further stated that since the competent authority was verifying that the above Page 24 of 47 HC-NIC Page 24 of 47 Created On Sun Aug 13 23:17:27 IST 2017 C/SCA/2387/2017 JUDGMENT piece of land was not acquired earlier for existing road, then they may request him to provide necessary supporting revenue documents for it so that it can be included for section 3A notification.
17. The competent authority, by a letter dated 09.09.2015, once again called upon the second respondent to submit a proposal for acquisition of the land and forwarded therewith xerox copies of village forms No.7/12 and No.8A as well as village form No.6 relating to the subject lands. In the opinion of this court, the readiness with which some of the Government functionaries have ascribed to the petitioner's say that the subject lands were never acquired despite the fact that there was an existing State Highway which was thereafter converted into a National Highway passing through the land in question, by solely placing reliance upon the revenue records (which clearly do not depict the correct picture, inasmuch as the same show that except for the land which has been acquired in the present acquisition, the remaining lands, including the land forming part of the State Highway are under cultivation), is to say the least, quite astounding.
18. In response to the above communication, the second respondent addressed a communication dated 22.09.2015 to the Competent Authority and Sub-
Divisional Magistrate, Bhuj, stating that the land
verified by him by his communication dated
09.09.2015 can be acquired by the two methods
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C/SCA/2387/2017 JUDGMENT
mentioned therein. By a letter dated 10.12.2015
(Annexure-V), the petitioner in the context of a letter dated 12.09.2015, a copy whereof is not annexed along with the petition, calculated the compensation claimed by him in respect of the disputed lands, which is at the rate of Rs.280/- per square metre for Survey No.170 and Rs.260/- per square metre for Survey No.171 with 10% increase. However, from the averments made in the petition, an impression is created as if such letter has been addressed in the context of the above letter dated 22.09.2015.
19. On 31.12.2015, the Competent Authority and Sub- Divisional Magistrate, Bhuj addressed a letter to the second respondent forwarding the above application of the petitioner for doing the needful. Pursuant thereto, the second respondent addressed a communication dated 09.03.2016 to Shri R. K. Bansal, CGM (T) and Regional Officer (Gujarat) for approving compensation as demanded by the petitioner setting out all the facts. In response thereto, the Deputy Manager (T) for CGM (Tech) and RO - Gujarat, by a letter dated 11.05.2016, requested the second respondent to ascertain that while taking over of the stretch from PWD, the land under acquisition was handed over to NHAI and if the case is so, to take up the matter at the relevant level of District Collector/PWD Secretary. The second respondent thereafter addressed a communication dated 26.05.2016, which reads thus:
"With reference to the subject matter, this is to Page 26 of 47 HC-NIC Page 26 of 47 Created On Sun Aug 13 23:17:27 IST 2017 C/SCA/2387/2017 JUDGMENT submit that the stretch of NH-8A (Extn.) from Gandhidham (Kandla) to Siracha junction (approximate length 71.400 Km.) was entrusted to NHAI for upgrading it to 4/6 lane from existing 2 lane highway.
Existing Right of Way (EROW) for 2 lane highway handed over to NHAI by R&B was 30 m. for up gradation to 4/6 lane the RoW required is 60 m. or more. So NHAI has acquired additional 30 m. or more throughout the length of the stretch.
But NHAI is now getting representations from local villagers like owners of survey No. 170 & 171, 6, 2/1, 4/4, 2/1 paiki-1, that their land which is falling in alignment of EROW of 30 m. was not acquired from them and demanding compensation whereas DILR records show that the land is in name of NHAI but land records like 7/12 etc. show land in name of owners.
In this regards, Sub Divisional Magistrate & Competent Authority of land acquisition (CALA), Bhuj has also written to this office vide its letters cited under ref. (2), (6) & (7) for payment of compensation.
Further, R&B Division, Bhuj vide its letter 1111/2015 dated 21.02.2015 has written to SDM & CALA, Bhuj that R&B Division had not acquired the said land of S. No.6 paiki, 2/1 paiki, 4/4,170 & 171 of Bhorara village.
This office vide its letter no. D-4364 dated 09.03.2016 had forwarded the matter to Regional Officer-Gujarat, NHAI RO-Gujarat, NHAI vide its letter No.F-21 dated 11.05.2016 has instructed to ascertain whether the said land was handed over to NHAI or not by PWD.
Therefore, you are requested to kindly confirm: -
1. Land of S. No.170 & 171, 6 paiki, 2/1 paiki, 4/4 of Bhorara village was acquired by R&B or not. And if it was acquired then how much land was acquired in above survey numbers.
2. Width of EROW of 2 lane highway which was transferred to NHAI.
Further, as the matter is related to huge financial implication on Government as more such cases Page 27 of 47 HC-NIC Page 27 of 47 Created On Sun Aug 13 23:17:27 IST 2017 C/SCA/2387/2017 JUDGMENT may arise in future, it is requested to kindly confirm the same after thorough examination of facts and at the earliest please."
20. By a communication dated 22.06.2016 of the Executive Engineer, R & B, Kutch addressed to the National Highway Authority, it is informed that upon verification, it is found that the office has not carried out any acquisition proceedings nor paid any compensation and again requested the authority to proceed further to grant compensation as per the demand of the agriculturist. By a communication dated 07.07.2016 of the Competent Authority, National Highway Authority and Sub-Divisional Magistrate, Bhuj addressed to the second respondent, it was informed that as per the letter dated 16.12.2014 of the Talati- cum-Mantri, Toda-Bharara as per the measurement carried out in the year 1982-83, no entry has been made in respect of the survey numbers in the government records. Such land has not been deducted from the area of land held by the landholder in the 8-A register. K.J.P. has not been done. He has also referred to the letter dated 22.06.2016 of the Executive Engineer and has requested that the needful be done.
21. On 08.07.2016, the second respondent addressed a communication to the Collector and District Magistrate, Bhuj-Kutch setting out the facts which find reference hereinabove and has further stated thus:
"In this regards, Your kind attention is drawn to the facts that:-Page 28 of 47
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1. 2 lane NH was already existing there under the jurisdiction of R&B & handing over of this stretch was done in 2010.
2. Please find enclosed herewith copy of village map showing additional land required in Bhorara village. From map it is clear that already road was passing through Revenue Survey members 170 & 171 & only additional land was acquired by NHAI.
Further, this is to submit that this office is receiving such representation from other land owners also and matter includes huge financial implication. As NH-8A (Extn.) was already passing through above cited survey numbers and submission of Executive Engineer, R&B, Bhuj that the land was not acquired by R&B and road was also not constructed there by R&B, Bhuj that the land was not acquired by R&B and road was also not constructed there by R&B does not seem justified.
As the matter is related to huge financial implication on Government as more such cases may arise in future, your kind intervention is highly desired in the matter. You are kindly requested to direct concerned officials to provide land acquisition & EROW records of Nh-8A (Extn.) from Km. 0.0000 to Km. 71.400.
So, it is requested to take up the matter with higher level of PWD (i.e. Secretary PWD), So that the problem of compensation to land owner may be resolved. Because reason submitted by E.E. R&B is not satisfactory."
22. Thereafter, by a letter dated 25.07.2016 of the Competent Authority, National Highway Authority and Sub-Divisional Magistrate, Bhuj addressed to the Executive Engineer, Roads and Building Department, Bhuj, called upon him to give clarification issue-wise to the above letter dated 08.07.2016. In response thereto, the Executive Engineer, R & B, Bhuj addressed a letter dated 06.08.2016 to the competent authority Page 29 of 47 HC-NIC Page 29 of 47 Created On Sun Aug 13 23:17:27 IST 2017 C/SCA/2387/2017 JUDGMENT stating that as per the letter of the DILR, the measurement had been carried out in 1982-83 for the Pragpar - Gundala Road, Mouje Bhorara, Taluka Mundra, however, no proposal had been made from the said office for acquisition of the privately owned lands and no compensation had been paid. That a report had been made after verifying the record of the office which may be taken into consideration. It is further stated therein that at the existing land/road which was measured at the relevant time is now being acquired for National Highway, Kandla-Mundra National Highway No.8-A (Widening) and no acquisition proceedings have been taken in respect of the lands and no compensation has been paid in respect thereof, hence, needful be done for giving compensation to the agriculturist as per the Government norms. It is further stated therein that the Project Director, Gandhidham, by a communication dated 08.07.2016, has raised various issues in respect of which no remarks are required to be given by the said office. That the report which was sent by the said office is based upon the record after due verification. Thereafter, the Collector, Kutch addressed a letter dated 27.09.2016 to the Executive Engineer, Roads and Buildings Department (State) inter alia, stating that the Executive Engineer, State Highway Office, Adipur, by a letter dated 08.01.2015, has stated that the State Highway was upgraded into a National Highway in the year 2000. The said road was under the said department from 2000 to 2011 and that during which time, no proceedings for acquisition of such lands have been Page 30 of 47 HC-NIC Page 30 of 47 Created On Sun Aug 13 23:17:27 IST 2017 C/SCA/2387/2017 JUDGMENT taken nor has any compensation been paid. It is further stated therein that the since the said road was under them [Roads and Building Department, (State)] for the period prior to 2000 no record of acquisition had been handed over to the said office. It is further stated therein that he [the Executive Engineer, Roads and Buildings Department (State)] has, by a communication dated 06.08.2016 addressed to the competent authority, stated that no proposal has been sent by him in connection with the road in question and that, no award had been declared under the provisions of the Land Acquisition Act and that, no compensation had been paid. The Collector has, accordingly, informed the Executive Engineer that the road in question which has been built in the year 1982-83 has not been constructed by the Executive Engineer, National Highway office, Adipur. Since this matter relates to his department, he may obtain supporting details as to when was the road constructed, which lands of private ownership and of which survey numbers, have been acquired and as to whether the same have been acquired and whether the compensation has been paid, etc ., of the Government from his department and forward the same. (Emphasis supplied). Thereafter, the Executive Engineer, National Highway Division, Gandhidham addressed a letter dated 15.10.2016 to the second respondent, which reads thus:
"With reference to the above, this is to submit that Gandhidham - Anjar - Pragapar (Mundra) - Mandvi road was upgraded from State Highway to National Page 31 of 47 HC-NIC Page 31 of 47 Created On Sun Aug 13 23:17:27 IST 2017 C/SCA/2387/2017 JUDGMENT Highway vide Government of India, MoRT&H's notification dated 11 t h October, 1999. Thereafter, this office had taken charge of the said from R&B Division, Bhuj. As per the charge received by this office from R&B Division, Bhuj, it was informed that the ROW of the said highway is 30 m width and no Land records were made available to this office. Hence, this office was also presumed 30 m wide existing ROW of the said highway and accordingly Existing Right of Way for 2 lane highway handed over to NHAI was 30 m.
This land issue was previously clarified by this office vide letter dated 8.01.2015 (Copy enclosed) to the Competent Authority & SDM, Bhuj that no such land acquisition of S. No.6 paiki, 2/1 paiki, 4/4 of Bhorara village was done during the period of 2000 to 2011 (i.e. till the highway stretch handed over to NHAI) by this office. Thereafter, written confirmation was also given by the Executive Engineer, R&B Division, Bhuj vide their letter dated 6.08.2016 to SDM & CALA, Bhuj that R&B Division, Bhuj had not acquired the said land of S. No.6 paiki, 2/1 paiki, 4/4, 170 & 171 of Bhorara village till the said highway handed over to NH Division, Gandhidham (i.e. upto year 2000)."
23. Thus, by the said letter, the Executive Engineer has stated that the Gandhidham - Anjar - Pragapar (Mundra) - Mandvi road was upgraded from State Highway to National Highway vide Government of India, MoRT&H's notification dated 11 t h October, 1999 and that the said office had taken charge of the said from R&B Division, Bhuj. That as per the charge received by this office from R&B Division, Bhuj, it was informed that the ROW of the said highway is 30 metres in width and no land records were made available to that office. Therefore, the office had also presumed that there was a 30-metre-wide existing ROW of the said highway and accordingly the existing Page 32 of 47 HC-NIC Page 32 of 47 Created On Sun Aug 13 23:17:27 IST 2017 C/SCA/2387/2017 JUDGMENT right of way for 2 lane highway which was handed over to NHAI was 30 metres.
24. Thereafter, the Executive Engineer, Roads & Building Department addressed a communication dated 24.11.2016 to the Collector, Revenue Department, Land Acquisition, Bhuj - Kutch informing him that as per the say of the applicant, the lands of Survey No.170 and No.171, situated at Mouje Bhorara, Taluka Mundra (Kutch) which have been acquired, have been used for the road and has asked for details with regard to any acquisition and award, etc. In connection therewith, it may be informed that the road was under the Roads and Building Department and that together with it each of the correspondence files etc. till then, have been handed over to the National Highway and that at present no record relating to the road is available with the office due to which, as to whether or not the lands had been acquired in the year 1982-83, whether any award has been declared and whether the compensation has been paid, no record is available with this office. Considering the reply given by the Executive Engineer to the Collector, one fails to understand as to on what basis he had stated earlier that no acquisition had taken place and that no compensation had been paid, inasmuch as, the said office had not received any land records in respect of the said road.
25. Thereafter, the Collector, Kutch, by the impugned communication dated 08.12.2016, informed the Page 33 of 47 HC-NIC Page 33 of 47 Created On Sun Aug 13 23:17:27 IST 2017 C/SCA/2387/2017 JUDGMENT petitioner that he had purchased the lands of Survey No.170 and No.171 vide sale deeds dated 16.09.2005 and 26.09.2005 respectively, and that, his name had been entered in the revenue record on 10.11.2006. A perusal of the details of Survey No.170, admeasuring Hectare 2-35-73 and Survey No.171, admeasuring Hectare 1-91-21 shows that the petitioner has become occupant and owner of the lands from the date of such purchase. It is further stated therein that Kandla - Mundra highway/Pragpar - Gundala road has been constructed in the year 1982-83 and that at the relevant time, the petitioner was neither occupant nor owner of Survey No.170 and No.171. That, the petitioner had become the occupant and owner of the said lands from the date of such purchase as mentioned above. It is further stated therein that since the petitioner was not the occupant and owner of the said lands at the relevant time when the road had been constructed in the year 1982-83, the claim for compensation does not appear to be reasonable, and accordingly, the applications of the petitioner at reference item (1) and (2) are being filed.
26. From the correspondence between different authorities and the petitioner as referred to hereinabove, it appears that on account of lapse of time due to which the records relating to the subject lands are not available and the officers have changed, the respondents do not appear to be aware as regards when and how the subject lands came into the possession of the State Government and the road Page 34 of 47 HC-NIC Page 34 of 47 Created On Sun Aug 13 23:17:27 IST 2017 C/SCA/2387/2017 JUDGMENT came to be constructed. In fact, even the petitioner appears to be clueless about the same, or is at least putting up a show about not being aware of the existing road. Nonetheless, the fact remains that there is an existing road since more than thirty years on the lands in respect of which dispute is sought to be raised at this stage, and no dispute has been raised for all these years by the original owners from whom such lands were acquired. Clearly therefore, either the lands may have been acquired at the relevant time through the process of land acquisition or through private negotiations or some other mode. The fact that no grievance has been raised by the original owner, gives reason to believe that he has acquiesced with the action of the respondent authorities.
27. At this juncture, it may be germane to refer to the decision of the Supreme Court in the case of State of Maharashtra v. Digambar, (1995) 4 SCC 683, the relevant portion whereof reads thus:
"14. How a person who alleges against the State of deprivation of his legal right, can get relief of compensation from the State by invoking writ jurisdiction of the High Court under Article 226 of the Constitution even though, he is guilty of laches or undue delay is difficult to comprehend, when it is well settled by decisions of this Court that no per- son, be he a citizen or otherwise, is entitled to obtain the equitable relief under Article 226 of the Constitution if his conduct is blameworthy because of laches, undue delay, acquiescence, waiver and the like. Moreover, how a citizen claiming discretionary relief under Article 226 of the Consti- tution against a State, could be relieved of his obligation to establish his unblameworthy conduct for getting such relief, where the State against which relief is sought is a Welfare Page 35 of 47 HC-NIC Page 35 of 47 Created On Sun Aug 13 23:17:27 IST 2017 C/SCA/2387/2017 JUDGMENT State, is also difficult to comprehend. Where the relief sought under Article 226 of the Constitution by a person against the Welfare State is founded on its alleged illegal or wrongful executive action, the need to explain laches or un- due delay on his part to obtain such relief, should, if any- thing, be more stringent than in other cases, for the reason that the State due to laches or undue delay on the part of the person seeking relief, may not be able to show that the executive action complained of was legal or correct for want of records pertaining to the action or for the officers who were responsible for such action not being available later on. Further, where granting of relief is claimed against the State on alleged unwarranted executive action, is bound to result in loss to the public exchequer of the State or in damage to other public interest, the High Court before granting such relief is required to satisfy itself that the delay or laches on the part of a citizen or any other person in approaching for relief under Article 226 of the Constitu- tion on the alleged violation of his legal right, was wholly justified in the facts and circumstances, instead of ignoring the same or leniently considering it. Thus, in our view, per- sons seeking relief against the State under Article 226 of the Constitution, be they citizens or otherwise, cannot get discretionary relief obtainable thereunder unless they fully satisfy the High Court that the facts and circumstances of the case clearly justified the laches or undue delay on their part in approaching the Court for grant of such discretion- ary relief. Therefore, where a High Court grants relief to a citizen or any other person under Article 226 of the Consti- tution against any person including the State without con- sidering his blameworthy conduct, such as laches or undue delay, acquiescence or waiver, the relief so granted be- comes unsustainable even if the relief was granted in re- spect of alleged deprivation of his legal right by the State."
"18. Coming to the exercise of power conferred upon the High Court under Article 226 of the Constitution for issuing orders, directions or writs for "any purpose", such power is discretionary, being a matter well-settled, cannot be dis- puted.
19. Power of the High Court to be exercised under Article 226 of the Constitution, if is discretionary, its exercise must be judicious and reasonable, admits of no controversy. It is for that reason, a person's entitlement for relief from a High Court under Article 226 of the Constitution, be it against Page 36 of 47 HC-NIC Page 36 of 47 Created On Sun Aug 13 23:17:27 IST 2017 C/SCA/2387/2017 JUDGMENT the State or anybody else, even if is founded on the allega- tion of infringement of his legal right, has to necessarily de- pend upon unblameworthy conduct of the person seeking relief, and the court refuses to grant the discretionary relief to such person in exercise of such power, when he ap- proaches it with unclean hands or blameworthy conduct.
20. Laches or undue delay, the blameworthy conduct of a person in approaching a court of equity in England for ob- taining discretionary relief which disentitled him for grant of such relief was explained succinctly by Sir Barnes Peacock, long ago, in Lindsay Petroleum Co. v. Hurd, (1874) 5 PC 221, thus:
"Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practic- ally unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation, in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute or limitations, the validity of that de- fence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done dur- ing the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as it relates to the remedy."
21. Whether the above doctrine of laches which disen- titled grant of relief to a party by equity court of England, could disentitle the grant of relief to a person by the High Court in exercise of its power under Article 226 of our Con- stitution, when came up for consideration before a Consti- tution Bench of this Court in Moon Mills Ltd. v. M.R. Meher, President, Industrial Court, AIR 1967 SC 1450, it was re- garded as a principle that disentitled a party for grant of re- lief from a High Court in exercise of its discretionary power under Article 226 of the Constitution.
22. A three-Judge Bench of this Court in Maharashtra SRTC v. Shri Balwant Regular Motor Service, AIR 1969 SC 329, reiterated the said principle of laches or undue delay Page 37 of 47 HC-NIC Page 37 of 47 Created On Sun Aug 13 23:17:27 IST 2017 C/SCA/2387/2017 JUDGMENT as that which applied in exercise of power by the High Court under Article 226 of the Constitution.
23. Therefore, where a High Court in exercise of its power vested under Article 226 of the Constitution issues a direction, order or writ for granting relief to a person includ- ing a citizen without considering his disentitlement for such relief due to his blameworthy conduct of undue delay or laches in claiming the same, such a direction, order or writ becomes unsustainable as that not made judiciously and reasonably in exercise of its sound judicial discretion, but as that made arbitrarily.
24. Since we have held earlier that the person seeking grant of relief under Article 226 of the Constitution, even if it be against the State, is required to satisfy the High Court that he was not guilty of laches or undue delay in ap- proaching it for relief, need arises for us to consider wheth- er the respondent in the present appeal (writ petitioner in the High Court) who had sought for relief of compensation on the alleged infringement of his legal right, had satisfied the High Court that he was not guilty of undue delay or laches in approaching it for relief. The allegation of the peti- tioner in the writ petition, as becomes clear from the judg- ment under appeal, was that although a certain extent of his land was taken away in the year 1971-72 by the agency of the State for the scarcity relief road works undertaken by the State Government in the year 1971-72, to find work for small agriculturists and agricultural labourers in the then prevailing severe drought conditions, without his consent, he was not compensated therefor, despite requests made to the State Government and various agencies in that re- gard ever since till the date of filing of the writ petition by him.
25. In our view, the above allegation is in no way suffi- cient to hold that the writ petitioner (respondent here) has explained properly and satisfactorily the undue delay of 20 years which had occurred between the alleged taking of possession of his land and the date of filing of writ petition in the High Court. We cannot overlook the fact that it is easy to make such kind of allegations against anybody that too against the State. When such general allegation is made against a State in relation to an event said to have occurred 20 years earlier, and the State's non-compliance with petitioner's demands, the State may not at all be in a position to dispute such allegation, having regard to the manner in which it is required to carry on its governmental Page 38 of 47 HC-NIC Page 38 of 47 Created On Sun Aug 13 23:17:27 IST 2017 C/SCA/2387/2017 JUDGMENT functions. Undue delay of 20 years on the part of the writ petitioner, in invoking the High Court's extraordinary juris- diction under Article 226 of the Constitution for grant of compensation to his land alleged to have been taken by the governmental agencies, would suggest that his land was not taken at all, or if it had been taken it could not have been taken without his consent or if it was taken against his consent he had acquiesced in such taking and waived his right to take compensation for it.
26. Thus, when the writ petitioner (respondent here) was guilty of laches or undue delay in approaching the High Court, the principle of laches or undue delay adverted to above, disentitled the writ petitioner (respondent here) for discretionary relief under Article 226 of the Constitution from the High Court, particularly, when virtually no attempt had been made by the writ petitioner to explain his blame- worthy conduct of undue delay or laches. The High Court, therefore, was wholly wrong in granting relief in relation to inquiring into the allegation and granting compensation for his land alleged to have been used for scarcity relief road works in the year 1971-72. As seen from the judgment of the High Court, the allegation adverted to above, appears to be the common allegation in other 191 writ petitions where judgments are rendered by the High Court following the judgment under appeal and which are subject of SLPs in this Court that are yet to be registered. We have, therefore, no hesitation in holding that the High Court had gone wholly wrong in granting the relief which it has given in the judgment under appeal, and judgments rendered following the said judgment in other 191 writ petitions, said to be the subject of SLPs or otherwise. All the said judgments of the High Court, having regard to the fact that they were made in writ petitions with common allegation and seeking com- mon relief, are liable to be interfered with and set aside in the interests of justice even though only learned counsel appearing for a few writ petitioners were heard by us."
28. In the facts of the present case, the petitioner has not explained the delay in filing the present petition seeking compensation in respect of the lands which were acquired in the year 1982-83 and has, in fact, chosen to feign total ignorance about the existence of the national highway Page 39 of 47 HC-NIC Page 39 of 47 Created On Sun Aug 13 23:17:27 IST 2017 C/SCA/2387/2017 JUDGMENT on the subject lands. Taking advantage of the present acquisition proceeding, the petitioner, who even after the execution of the sale deeds in question, has never raised any claim before the respondent authorities, seeks to claim compensation in respect of the subject lands at such a belated stage, claiming that the entire land has been acquired in the present petition. Thus, the petitioner has virtually not made any attempt to explain his blameworthy conduct as well as that of his predecessor-in-title, of undue delay and laches. As held by the Supreme Court in the above decision, in the facts of the present case also, the undue delay of more than thirty years on the part of the writ petitioner, in invoking this court's extra-ordinary jurisdiction under Article 226 of the Constitution of India for grant of compensation in respect of his land alleged to have been taken by the governmental agencies, would suggest that his land was not taken at all, or if it had been taken, it could not have been taken without the consent of his predecessor-in-title or if it was taken against the consent of his predecessor- in-title, he had acquiesced in such taking and waived his right to take compensation for it.
29. As held by the Supreme Court in the above decision, the power of the High Court to be exercised under Article 226 of the Constitution, if is discretionary, its exercise must be judicious and reasonable, admits of no controversy. It is for that reason, a person's entitlement for relief from a High Court under Article 226 of the Constitution, be it Page 40 of 47 HC-NIC Page 40 of 47 Created On Sun Aug 13 23:17:27 IST 2017 C/SCA/2387/2017 JUDGMENT against the State or anybody else, even if is founded on the allegation of infringement of his legal right, has to necessarily depend upon unblameworthy conduct of the person seeking relief, and the Court refuses to grant the discretionary relief to such person in exercise of such power, when he approaches it with unclean hands or blame-worthy conduct. In the present case, it may be reiterated that the petitioner has not approached this court with clean hands and has sought to mislead the court into believing that the land in respect of which dispute has been raised in the present petition, has been taken over in the present acquisition proceeding without payment of compensation, whereas from the record of the case, it is evident that there was an existing road on the disputed land since around 1982-83, thus, the petitioner has suppressed material facts from the court. Moreover, the petitioner's conduct is not unblameworthy inasmuch as apart from the fact that the petitioner is guilty of suppressio veri and suggestio falsi, the petition also suffers from undue delay and laches, disentitling the petitioner from claiming discretionary relief under Article 226 of the Constitution of India.
30. Another noteworthy aspect of the matter is that the petitioner seeks to place the burden of proof that the land was acquired, upon the respondents. Since it is the petitioner who is asserting that the land was not acquired and the compensation was not paid, the burden lies upon him to show as to how and when the possession of the land was taken over Page 41 of 47 HC-NIC Page 41 of 47 Created On Sun Aug 13 23:17:27 IST 2017 C/SCA/2387/2017 JUDGMENT and the road was constructed thereon; what action was taken at the relevant time; whether or not acquisition was undertaken or not. Besides all the above factors give rise to disputed questions of fact and this court in exercise of powers under Article 226 of the Constitution of India, would not embark upon any inquiry into such disputed questions of fact as the same would require evidence to be led by the respective parties. If the petitioner or his predecessor-in-title have been wrongfully deprived of any land, it is for the petitioner to file appropriate proceedings before the appropriate forum within the prescribed period of limitation alleging such wrongful deprivation. Therefore, even on the ground that the present petition involves disputed questions of fact, the court is not inclined to exercise discretion under Article 226 of the Constitution of India.
31. The petitioner has also alleged breach of principles of natural justice on the ground that the Collector has not afforded any opportunity of hearing before filing his application. It may be noted that the application made by the petitioner is not relatable to any statutory provision as would entitle him to any right of hearing and hence, the grievance with regard to the breach of principles of natural justice, does not merit acceptance. The impugned order has not been passed by the Collector in exercise of any statutory power or authority nor has the petitioner invoked any statutory jurisdiction vested in any authority.
32. The learned advocate for the petitioner has reliance has placed on various decisions which have Page 42 of 47 HC-NIC Page 42 of 47 Created On Sun Aug 13 23:17:27 IST 2017 C/SCA/2387/2017 JUDGMENT been referred to hereinabove. Insofar as the decision of the Supreme Court in Tukaram Kana Joshi (supra) is concerned, in the facts of the said case the respondent authorities had admitted that grave injustice had been done to the appellant therein and in 1981 had issued a fresh notification under section 4 of the Land Acquisition Act, however, subsequently, the said proceedings had lapsed. In the facts of the said case, the court has categorically noted that the appellants had been pursuing their case persistently, which is not so in the present case, where the original owner has not raised any dispute at any point of time, and it is only the petitioner, who at a highly belated stage seeks to raise a dispute that the subject lands have not been acquired at the relevant time. The said decision would therefore have no applicability to the facts of the present case.
33. Insofar as the decision of the Andhra Pradesh High Court in Vemula Prabhakar v. Land Acquisition Officer, 2002 (1) ALT 322, is concerned, the question before the High Court was whether a writ of mandamus directing the respondents to make payment in relation to the amount enhanced by the civil court in a reference made under section 18 of the Land Acquisition Act, 1894 can be issued? Whereas the dispute sought to be raised in the present case is that the land of the petitioner has been taken over without following any procedure under the provisions of the Land Acquisition Act. Reliance placed upon the said decision is therefore, misconceived. Besides in the said case, the court did not deem it fit to exercise Page 43 of 47 HC-NIC Page 43 of 47 Created On Sun Aug 13 23:17:27 IST 2017 C/SCA/2387/2017 JUDGMENT powers under Article 226 of the Constitution and relegated the petitioner to avail of the remedy provided under the Code of Civil Procedure, 1908.
34. In K Sai Reddy v. Deputy Executive Engineer, 1995 (1) ALT 673, on which reliance has been placed on behalf of the petitioner, the possession of the land of the petitioner was taken over forcibly in January 1989 and since then the petitioner was pursuing the matter before the concerned authorities and ultimately filed the petition in 1992, whereas in the facts of the present case, a road is in existence over the disputed lands since 1982-83 and the petitioner is not in a position to state as to when and how the possession of the land was taken over, nor was any dispute raised at the relevant point of time, and now, much belatedly, after more than thirty years a dispute is sought to be raised without disclosing correct facts. The said decision, therefore, does not carry the case of the petitioner any further.
35. As regards the decision of the Supreme Court in the case of Khorshed Shapoor Chenai v. Assistant Controller of Estate Duty, Andhra Pradesh , (1980) 2 SCC 1, there can be no quarrel with the proposition that upon purchase of lands by the petitioner, he steps into the shoes of the original owner. However, in the facts of the present case, the petitioner has purchased land with an existing National Highway passing through it, and is not in a position to state any facts regarding how and when the road came to be constructed. Even if the original owner had come to Page 44 of 47 HC-NIC Page 44 of 47 Created On Sun Aug 13 23:17:27 IST 2017 C/SCA/2387/2017 JUDGMENT the court, he would have to satisfy the court regarding the manner in which and time when the lands came to be taken over by the respondent authorities and would also be required to explain the delay of thirty years in raising the dispute.
36. Insofar as the decision of the Supreme Court in Union of India v. Shivkumar Bhargava, AIR 1995 SC 812, is concerned, it is well settled that a person who purchases land subsequent to notification for acquisition would be entitled to claim compensation by virtue of sale made in his favour, however, the said decision has no applicability to the facts of the present case, where the dispute is as to whether or not the land was acquired prior to the road being constructed thereon more than thirty years ago. Similarly, in U P Jal Nigam, Lucknow v. Kalra Properties (P) Ltd. Lucknow, 1996 LawSuit (SC) 125, it has been held that the purchaser acquired no title after publication of notification, however, he would be entitled to compensation as he steps into the shoes of the erstwhile owner. For the reasons recorded hereinabove, the said decision would have no applicability to the facts of the present case. For the same reason, the decision of the Allahabad High Court in the case of District Manager, Food Corporation of India v. Kailash Chand, 2013 LawSuit (All) 124, wherein it has been held that transfers made in favour of the respondents therein during the pendency of the land acquisition reference before the Additional District Judge/District Judge was not hit by section 6(e) of the Transfer of Property Act, would not be Page 45 of 47 HC-NIC Page 45 of 47 Created On Sun Aug 13 23:17:27 IST 2017 C/SCA/2387/2017 JUDGMENT applicable to the facts of the present case which does not relate to any acquisition proceedings, but seeks to raise a dispute that the subject lands have been taken over without resorting to any procedure under the Land Acquisition Act. For the same reason, the decision of the Allahabad High Court in the case of Asian Townsville Farms Ltd. v. State of U.P ., 2016 LawSuit (All) 1304, does not in any manner support the case of the petitioner. Besides in the facts of the said case the court held that when the erstwhile owners have received substantial compensation under agreement, there is no scope to challenge acquisition of land in dispute by petitioner, who is subsequent purchaser, through sale deeds dated 11.10.1999. In Radha Soami Satsang Beas v. State of Uttar Pradesh, 2016 LawSuit (All) 1629, the Allahabad High Court has held that as a subsequent purchaser one cannot challenge acquisition and limited right a subsequent purchaser has, is to claim compensation of land acquired by State. As observed earlier, there can be no quarrel with the proposition of law. However, in the facts of the present case, there is nothing to show that such lands were not acquired at the relevant time through any procedure known to law, and the petitioner seeks to throw the entire burden on the respondents, who after a period of thirty years are not in a position to state the correct position for lack of the relevant records. As observed earlier, when the petitioner has come to the court raising a claim, he is required to state the basic facts regarding when and how the possession of the subject lands came to be Page 46 of 47 HC-NIC Page 46 of 47 Created On Sun Aug 13 23:17:27 IST 2017 C/SCA/2387/2017 JUDGMENT taken over and what had transpired at the relevant time. The decision of the Allahabad High Court in Jal Sansthan, Agra v. Krishna Kumari, 2016 (118) All LR 73, which lays down a similar proposition of law also does not advance the case of the petitioner.
37. The upshot of the above discussion is that the present petition which suffers from suppression of material facts as well as from delay and laches and raises disputed questions of fact, is thoroughly devoid of any merit or substance and does not warrant exercise of powers under Article 226 of the Constitution. The petition, therefore, fails and is, accordingly, dismissed.
(HARSHA DEVANI, J.) (A. S. SUPEHIA, J.) parmar* Page 47 of 47 HC-NIC Page 47 of 47 Created On Sun Aug 13 23:17:27 IST 2017