Madhya Pradesh High Court
Surjeet Singh Sahni vs The State Of Madhya Pradesh on 9 January, 2018
Author: Rohit Arya
Bench: Rohit Arya
1 W.P.No.1126/2016
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
Writ Petition No.1126 of 2016
Surjit Singh Sahani
Vs.
State of M.P., and others
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Shri A.K.Sethi, learned Senior Advocate assisted by Shri Rishabh
Sethi, learned counsel for the petitioner.
Ms. Bharti Lakkad and Shri Sudarshan Joshi learned Government
Advocates for the respondents No.1 & 2/State.
Shri Shekhar Bhargava, learned senior counsel assisted by
Ms.Meghna Bais for the respondent No.3.
None for the respondent No.4.
Shri A.M.Mathur, learned Senior Advocate assisted by Shri
Abhinav Dhanodaker, learned counsel for the respondent No.5.
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Whether Approved for reporting: Yes
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Law Laid down:
(1) The word "Paid" not defined either in the Act of 1894 or in
the Act of 2013. It is the past tense of word "Pay". Payment
of compensation is contingent upon the requirement as
contemplated under sub-section (2) of section 31 of the Act
of 1894 and rigor of section 24(2) of the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 is attracted
subject thereto.
(2) Equity means: Fairness and honesty. A persson seeking
equity must show equity. A land owner having not
responded to notice under section 12(2) of the Land
Acquisition Act, 1894 in the matter of submission of NOC
from Ceiling Authority in terms of State Government
Notification dated 01/11/1990 entitled to receive the
compensation after acqusition of land, instead preferred
reference under section 18 of the Act of 1894 which stood
dismissed on 31/01/2015 cannot be permitted to invoke
equity jurisdiction of this Court under Article 226/227 of the
Constitution of India seeking quashment of notification
issued under section 4(1) of the Act of 1894 and the
acquisition proceedings completed in the year 2002 by
filing writ petition in the year 2016.
Significant paragraphs : 1, 9, 10, 12 to 20.
Writ Petition dismissed.
______
Reserved on: 05/12/2017
2 W.P.No.1126/2016
ORDER
(09/01/2018) Rohit Arya, J The Ujjain Development Authority (For short, 'the UDA') pursuant to the resolution of the Board of Directors dated 21/06/1990 proposed a scheme No.P-8/90 in villages Goyalkurd, Malanwasa and Shakkarwasa. Thereafter, as contemplated under section 50(2) of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 (For short, 'the Adhiniyam, 1973') publication of the scheme was made in the Madhya Pradesh Gazette Part 3(1) on 14/12/1990. After finalization of the scheme, the same was published under section 50(3) of the Adhiniyam, 1973 in the Madhya Pradesh Gazette on 27/11/1992.
The scheme having total area of land admeasuring 126 hectares was spread over in three phases; Goyalkurd, Malanwasa and Shakkarwasa.
PHASE I: Goyalkurd: Total land owners 34:
The proposal for acquisition of land in village Goyalkurd has been registered as case No.1A82/98-99 on 20/06/1997.
A notification dated 04/08/1998 under section 4(1) of the Land Acquisition Act, 1894 (For short, 'the Act of 1894') was published on 11/09/1998 in the Madhya Pradesh Gazette.
Notices were issued to the land owners on 23/12/1998 by the concerned Tahsildar.
After deciding the objections under section 5A by the Collector, Ujjain on 30/08/1999, notification under section 6 of the Act of 1894 was published on 10/09/1999 in the Madhya Pradesh Gazette.
Thereafter, notice under section 9 thereof was issued on 12/09/1999.
Objections were submitted by fourteen land owners including the petitioner. The same were replied by LAO on 15/03/2000.
Land Acquisition Officer passed the Award after deciding the objections, for an amount of Rs.2,90,64,541/- on 7/9/2001. Thereafter, notices under section 12(2) of the Act of 1894 were issued to total 34 land owners, calling upon them to submit the proof of no dues from Tahsildar, No Objection Certificate from the competent Authroity under Urban Land Ceiling, Ujjain; that the 3 W.P.No.1126/2016 land is exempt from ceiling and there is no title dispute. Therefore, only such interested persons were entitled for compensation. The aforesaid conditions were required to be fulfilled in the light of the notification of revenue department dated 01/11/1990 as available in the original record which reads as under:
"sdzekad ,Q12&83@lkr&9@90 Hkksiky] fnukad:1 uoEcj] 1990 izfr] dysDVj ftyk Hkksiky] bankSj] mTtSu] tcyiqj] jk;iqj] Xokfy;j ,oa nqxZ e0iz0 leLr l{ke izkf/kdkjh uxj Hkwfe lhek e/;izns'k fo"k;%& uxj Hkwfe lhek vf/kfu;e] 1976 ykxw uxjksa esa Hkw&vtZu dh dk;Zokgh ds laca/k esaA vkidks fofnr gh gS fd izns'k ds lkr uxj cLrh lewg Hkksiky] bankSj] mTtSu] Xokfy;j] tcyiqj] jk;iqj ,oa nqxZ esa uxj Hkwfe lhek vf/kfu;e] 1976 ds izko/kku ykxw gksus ls dksbZ Hkh ---------- fu/kkZfjr lhek ls vf/kd Hkwfe ugha j[k ldrs gSA bu uxjksa esa futh Hkwfe dks vtZu dh ekax vkus ij fcuk ifj{kr fd, Hkw&vtZu dh dk;Zokgh izkjaHk dj fn;s tkus ls uxj Hkwfe lhek vf/kfu;e] 1976 ds izko/kku foQy gksrs gSA dqN izdj.kksa esa flapkbZ ,oa vU; dqN foHkkxksa } kjk vkilh le>kSrs ls Hkh Hkwfe yh tkrh gSA ,sls izdj.kksa esa ewY;kadu Hkw&vtZu vf/kdkjh }kjk fd;k tkrk gSA ;fn lacaf/kr foHkkxksa dks ml le; ;g Li"V dj fn;k x;k gksrk fd iz'uk/khu Hkwfe uxj Hkwfe lhek vf/kfu;e ds izko/kkuksa ls izHkkfor gksus ls 'kklu esa fof"Br gks ldrh gS rks 'kklu dks foRrh; gkfu ls cpk;k tk ldrk ,slk gh ,d izdj.kksa esa 117-09 ,dM Hkwfe uxj Hkwfe lhek vf/kfu;e] 1976 ds izko/kkuksa ds rgr o"kZ 78&79 esa 'kklu esa fof"Vr gqbZ] ijUrq mlds ckn gh lacaf/kr foHkkx us Hkw&vtZu gsrq iz'uk/khu Hkwfe ds fy;s 12-88 yk[k :i;s dk Hkqxrku /kkjd dks dj fn;k tks fd vkifRr tud gSA 'kklu ds fgrksa dks n`f"Vxr j[krs gq, bl laca/k esa mRrjnkf;Ro fu/kkZfjr dj nks"kh vf/kdkjh deZpkjh ds fo:) vuq'kklukRed dk;Zokgh dh tk jgh gSA 4 W.P.No.1126/2016 bl laca/k esa bl foHkkx ds i= dza ,Q&1&47@lkr&9@89 fnukad 24&4&90 dk voyksdu djsaA ftlds }kjk ;g funsZ'k tkjh fd;k x;k gS fd uxj Hkwfe lhek vf/kfu;e] 1976 ds varxZr vfr'ks"k ?kksf"kr dh tkus okyh Hkwfe dk vfr'ks"k ?kksf"kr djus dh dk;Zokgh py jgh gS] ,slh Hkwfe uxj fodkl izkf/kdj.k x`g fuekZ.k e.My ,oa 'kklu ds foHkkx ,oa midze Hkw&vtZu vf/kfu;e ds rgr vf/kxzg.k ugha djsA ;fn fdUgh vfuok;Z ifjfLFkfr;ksa esa ,slh Hkwfe dks vf/kxzg.k dh vko';drk gks rks l{ke izkf/kdkjh ls laidZ dj Hkwfe izkIr djs vkSj ml Hkwfe dk eqvkotk /kkjd dks lhfyax vf/kfu;e ds varxZr fu/kkZfjr eqvkots ls vf/kd u fn;k tk,A ftu lkr uxjksa esa uxj Hkwfe lhek vf/kfu;e] 1976 ds izko/kku ykxw gS mudks Hkw&vtZu ds izdj.kksa esa bl vk'k; dk izek.k fn;k tkuk vko';d gksxk fd vtZu gsrq izLrkfor Hkwfe uxj Hkwfe lhek vf/kfu;e] 1976 ds izko/kkuksa ls eqDr gSA"
34 land owners were offered compensation.
It appears that the land owners have applied for obtaining NOC from the competent authority. The competent authority issued NOCs on the basis of available record and upon furnishing such NOCs to the Land Acquisition Officer, 30 farmers have received compensation.
Four farmers did not come forward to obtain NOC or to apply for compensation. Out of these four land owners, two land owners, namely; Jaswant Kumar and Vilas Jain W/o Mahesh remained unidentified. Other two land owners, viz., Surjeet Singh (present petitioner) and Keshav Kishore did not submit NOCs from the competent authority instead preferred reference under section 18 of the Act of 1894.
There were total 10 ceiling cases registered; out of which Ceiling Case No.166 x6/76-77 was registered in respect of four persons, viz.,(1) Surjeet Singh s/o Harman Singh (2) Rameshwar s/o Dhannalal (3) Bahadur Singh and others (4) Mayaram s/o Thavarji; legal heir Ratan Singh s/o Mayaram as he represented Mayaram at a later stage.
Out of the above mentioned land owners, three land owners, namely; Rameshwar, Bahadur Singh and Mayaram 5 W.P.No.1126/2016 through legal heir Ratan Singh have approached the competent ceiling authority for obtaining NOCs, on 12/02/2002, 12/02/2002 and 12/09/2003 respectively. As such upon fulfillment of conditions stipulated; they have received compensation, as detailed below:
Sl.No. Name Date of NOC Date of
by Ceiling payment of
Authority compensation
1 Rameshwar s/o 12/02/02 04/03/02
Dhannalal
2 Bahadur Singh 12/02/02 04/03/02
3 Mayaram s/o Thavarji; 12/09/03 09/10/03
legal heir Ratan Singh
s/o Mayaram as he
represented Mayaram
Petitioner never submitted NOC from the competent
authority.
The Ujjain Development Authority deposited the entire amount of compensation through cheques on different dates viz. 24/9/2001, 3/10/2001, 29/10/2001, 24/11/2001 and 27/11/2001.
Thereafter, Tahsildar directed the Revenue Inspector for taking over the possession from the land owners including the petiioner on 26/12/2001. Notice was issued from the Office of Revenue Inspector, Circle-II, Ujjain to petitioner on 5/1/2002, who received the same on 14/1/2002 [Anenexure R/3(1)]. The entire area of land falling in Phase I of the scheme was taken possession of during 16/1/2002 to 17/1/2002 from the land owners and the possession of petitioner's land was taken over on 17/1/2002 vide Annexure R/3-2 in the presence of Panchas by the Revenue Inspector and the Land Acquisition Officer and delivered to Ujjain Development Authority.
On 11/11/2002, petitioner filed an application under section 18 of the Act of 1894 for reference to the Court. The reference Court decided the case on 31/1/2005 rejecting the claim for enhancement of compensation with a finding in paragraph 3 relating to acceptance of compensation under protest and delivery of possession. Since 31/1/2005 till the date of filing of instant petition on 8/2/2016, for almost 11 years, no proceedings of any nature were ever initiated by the petitioner either questioning the Award or order of reference Court or the act of 6 W.P.No.1126/2016 land acquisition.
PHASE II : Malanwasa: Total land owners: 43 The compensation was offered to 43 land owners. Out of them, 35 have accepted the compensation and in respect of 1 land owner, case is pending before the Commissioner. Another person is not eligible for compensation as he was found to be in possession of Government land and for remaining 6 land owners, information is not available in the record.
PHASE III: Malanwasa and Shakkarwasa. Total land owners:24 + 7 = 30.
In Village Malanwasa, all the 24 land owners have accepted the compensation and in Village Shakkarwasa, out of 7, 6 have accepted the comepnsation, while the remaining one was not found eligible to receive compensation being in possession of Government land and the amount of compensation was deposited in the Collectorate.
None of the land owners in aforementioned three phases of the UDA schemes have questioned the land acquisition proceedings or any proceedings till date.
2. The UDA after following the procedure sought diversion of land and after sanctioning of layout by the Town & Country Planning Department developed the land. Divided it into hundreds of plots and transferred the same by way of lease/sale through auction/NIT. One such plot admeasuring 1337.65 sq.meters was also transferred to respondent no.3 by execution of lease in his favour vide registered lease deed dated 15/12/2015 (Annexure A/3). The said plot was declared freehold in the year 2016. The respondent No.4 has transferred the said plot in favour of respondent No.5 by a registered sale deed dated 21/10/2016 for a consideration of Rs.4,46,34,854/- (page No.246 of the paper book). Thereafter, physical possession was received by respondent No.5. After developing the plot, commercial complex was constructed with sanctioned map known as D-Mart.
3. The respondent No.5 added as respondent vide I.A.No.6271/2016 which was allowed by this Court on 07/12/2016.
7 W.P.No.1126/20164. Counter-affidavits of respondents No.3 and 5 with documents are on record. Respondents No.1 and 2/State Government have also placed original record of the case, as well as, that of ceiling case.
5. By way of this writ petition filed in the year 2016 rising like sphinix, the petitioner is seeking the relief for cancellation of the notification dated 04/08/1998 under section 4(1) of the Act of 1894 published in the Madhya Pradesh Gazette on 11/09/1998 and also setting aside the award dated 07/09/2001 passed by the Land Acquisition Officer as lapsed with further direction to the revenue authorities to record the name of the petitioner in the revenue record and for cancellation of the lease deed, Annexure A/3 executed by respondent No.3 in favour of respondent No.4. However, no relief has been claimed in respect of the sale deed executed by respondent No.4 in favour of respondent No.5 and against construction of commercial complex developed thereupon by respondent No.5.
Challenge in the writ petition hinges upon a delicate hook drawing support of section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (For brevity, 'the Act of 2013'). For ready reference, the relevant part is quoted below:
"24. Land acquisition process under Act No. 1 of 1894 shall be deemed to have lapsed in certain cases.-
(1) .... ... ...
(2) Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894), where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act: Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act."
6. The aforesaid challenge has been made on a solitary plea that neither possession of acquired land has been taken from the 8 W.P.No.1126/2016 petitioner, nor, was he paid the compensation.
7. Referring to the extracts of photocopies of note- sheets/order-sheets (internal correspondence of the UDA), the learned Senior Counsel for the petitioner tried to impress upon this Court that structure existing thereupon has not been removed and, therefore, it cannot be said that possession has been taken. Further, there is no document on record to suggest that petitioner has been paid the compensation. Therefore, on either count, the entire acquisition proceeding has lapsed by force of rigor as contained in section 24(2) of the Act of 2013.
8. Per contra, respondents No.1, 2 and 3 have submitted that possession has been taken over of the acquired land from the petitioner with due notice and endorsement made thereon by the petitioner. After completion of all the formalities; viz., Land Acquisition Officer passed the award on 07/09/2001. On 05/01/2002, the Revenue Inspector, Circle II issued a notice for taking over possession from the petitioner (Annexure R/3-1) which was duly received by the petitioner on 14/01/2002 and thereafter, possession of the land with structure and fixtures was taken over on 17/01/2002 wherein details of land are mentioned [possession taking receipt (kabza receipt) Annexure R/3-2] bearing the signatures of revenue officer, UDA officer as well as panchas. Besides, the petitioner preferred an application for enhancement of compensation under section 18 of the Act of 1894 on 11/11/2002 which was registered in the reference Court on 12/11/2002. The reference Court vide order dated 31/01/2005 while rejecting the application has recorded a finding that the petitioner has received the compensation though under protest and delivered the possession of acquired land. The petitioner has, as such, accepted the order passed by the reference Court (supra) and not challenged the same before any higher Court. The said finding is binding upon the petitioner.
9. Learned Senior Counsel further submits that in absence of challenge to section 4(1) notification and/or section 6 notification and for that matter to the land acquisition proceedings under the 9 W.P.No.1126/2016 Act of 1894, petitioner, in fact, has acquiesced the act of acquisition and was only aggrieved by the quantum of compensation as he did not respond to the offer of compensation but filed an application for enhancement thereof under section 18 of the Act of 1894 before the Reference Court. Hence, now he is estopped from questioning the acquisition proceedings with the aid of section 24(2) of the Act of 2013 under the pretext of non- payment of compensation. Further elaborating his submissions, learned Senior Counsel contended that even assuming that petitioner has not been paid the compensation, then in such eventuality, the Collector is required to pay the amount of Award with interest thereon at the prescribed rate from the time of taking possession of land until it has been so paid or deposited, in terms of section 34 of the Act of 1894. Petitioner, having not responded to the notice under section 12(2) of the Act of 1894 and proceeded to question the quantum of compensation, as indicated above, by no stretch of imagination, can be said to have not been paid the compensation. The act of acquisition of land, under the circumstances, cannot be questioned before this Court by invoking its equitable jurisdiction under Articles 226 and 227 of the Constitution of India. Learned Senior Counsel also submits that the entire land admeasuring 126 hectares, after acquisition, has been handed over to the UDA for development of its scheme. The development started way back in the year 2002. The land of petitioner got merged in the pool of lands having lost its identity under six layouts. The land has been divided into hundreds of plots and transferred to third party through advertisement/NIT. Individual lease deeds have also been executed. The entire area is developed with houses and buildings constructed thereon. At no point of time, petitioner raised any objection or initiated any proceedings against development of land or acquiring of plots. Now, at a distance of more than 14 years' time, petitioner cannot be permitted to seek cancellation of notification under section 4(1) and other acquisition proceedings and termination of lease executed by respondent No.3 in favour of respondent No.4 on 17/12/2004 by filing an application under section 24(2) of the Act of 2013. Learned counsel relied upon the judgment of the Apex Court in the case of Jasveer Singh and another Vs. State of 10 W.P.No.1126/2016 U.P. (2017) 6 SCC 787 to contend that the writ petition even otherwise suffers from delay and latches, hence, no interference is warranted under Articles 226 and 227 of the Constitution of India. Learned Sr. counsel further submits that, as a matter of fact, section 24(2) of the Act of 2013 has no application to the facts of the case as after passing of award, payment of compensation and taking over of possession of acquired land, the land vests absolutely in the Government free from all encumbrances. Thereafter, the land having been transferred to the UDA and developed, nothing survives qua the acquisition proceedings to be questioned before this Court. Learned counsel relied upon decisions of the Apex Court in Fruit and Vegetable Merchants Union Vs. The Delhi Improvement Trust (AIR 1957 SC 344, paras 11 & 19), Satendra Prasad Jain and others Vs. State of U.P. And others (AIR 1993 SSC 2517 (paras 13 and
14), Northern India Glass Industries Vs. Jaswant Singh and others (AIR 2003 SC 234, para 9), Government of A.P. and another Vs. Syed Akbar (AIR 2005 SC 492, paras 9 and 13), Balwant Narayan Bhagde Vs. M.D.Bhagwat and others (AIR 1975 SC 1767, paras 1,2 and 28), Tamil Nadu Housing Vs. A Viswam (Dead) by Lrs (AIR 1996 SC 3377, paras 8 and 9), Sitaram Bhander Society, New Delhi and others Vs. Lt. Governor (AIR 2010 SC 1143, paras 9 and 12), Banda Development Authority, Banda Vs. Moti Lal Agrawal and others [(2011)5 SCC 394, (paras 37 and 38)].
10. Respondent No.5 has adopted the aforesaid contentions with further contention that after due verification of title of respondent No.4, the respondent No.5 as a bona fide purchaser has purchased the plot vide sale deed dated 21/10/2016. After approval of the lay out plan by the Town and Country Planning Department, NOC of Nazul Officer and also after obtaining due permission from UDA and other authorities has raised a commercial complex investing crores of rupees known as D-Mart. It is submitted that no relief for cancellation of the sale deed dated 21/10/2016 executed in favour of respondent No.5 by respondent No.4 has been sought for in the writ petition. Even otherwise, in equity jurisdiction under Article 226/227 of the Constitution of 11 W.P.No.1126/2016 India, petitioner cannot be permitted to seek the relief for cancellation of the acquisition proceedings and the sale deeds (supra) after a long distance of time mentioned above. The petitioner has misused the process of law by filing the instant writ petition. With the aforesaid submissions, learned senior counsel for the respondent No.5 sought for dismissal of the writ petition.
11. Heard.
12. Before adverting to the merits of the case, it is expedient to reiterate the law underlying equitable jurisdiction. The High Court invokes extraordinary constitutional jurisdiction of judicial review under Articles 226 and 227 of the Constitution of India to address on complaints of violation of fundamental rights and/or legal rights and, if circumstances so warrant, to issue appropriate writ/order or directions considering the entire facts and circumstances of the case to ensure substantial justice to the party/parties. In this process, principles of equity play a vital role.
In its primary sense, equity ensures fairness. In the classical words of Sir Henry Maine, it is a "fresh body of rules by the side of the original law, founded on distinct principles and claiming to supercede the law by virtue of superior sanctity inherent in those principles". Plato has expressed the concept as "equity is a necessary element supplementary to the imperfect generalizaton of legal rules" and Aristotle described equiry as eternal and immutable and reiterated that "the equitable is just and better than one kind of justice - not better than absolute justice, but better than the error that arises from the absoluteness of the statement;...it is a correction of legal justice". Allen in his treatise "Law in the Making" has said - "Laws are not rules of thumb for the mechanical regulation of society. Every human law contains an aspiration towards ideal justice or an approximation to ideal justice. This presupposes the law to be sufficient unto itself. But it is not so and hence the need for supplementary or residuary jurisdiction".
The concept of equity, as perceived, is an original attempt to solve the riddles of law, where difficult and complex problems confront the legal system. The general nature of concept of equity 12 W.P.No.1126/2016 is founded in natural justice, honesty and right. "Snell's Principles of Equity" explains that "although in many cases equity intervened to put right an injustice, it must not be thought that every injustice was the subject of an equitable intervention."
However, in India, the law does not recognize distinction between law and equity unlike the English law. Shri M.C.Seetalvad in his treatise "Common Law in India" has stated thus:-
"...the statute law of India has incorporated in itself to a substantial extent equitabls rules and doctrines. The Indian Trusts Act of 1882 embodies in a concise form the whole structure of trusts built up by the equity courts in England... . Another instance of an almost bodily transplantation of the doctrines of the English equity courts is to be found in the Specific Reliefs Act of 1877... . In the greater part of the country it obtained its sway in the guise of 'equity, justice and good conscience'.... the process continues to this day."
It has therefore been aptly remarked in Seedee Ali Vs Raja Ajoodhya ((1867)8 WR 399), that in India, there is "but one kind of proprietory right, call it legal or equitable you choose, which is recognized by the court, it is an equity, not divisible into parts or aspects".
In the case of Delhi Development Authority Vs.Skipper Construction Co. (P) Ltd. ((1996)4 SCC 622, it has been held as under:-
"the power under Article 142 is meant to supplement the existing legal framework - to do complete justice between the parties - and not to supplant it. It is conceived to meet situations which cannot be effectively and appropriately tackled by the existing provisions of law. As a matter of fact, we think it advisable to leave this power undefined and uncatalogued so that it remains elastic enough to be moulded to suit the given situation. The very fact that this power is conferred only upon this Court, and on no one else, is itself an assurance that it will be used with due restraint and circumspection, keeping in view the ultimate object of doing complete justice between the parties."
In Shangrilla Food Products Limited Vs. LIC ((1996)5 SCC 54), it has been held as under:-
"It is well-settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognisance of the entire facts and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court, being extraordinary, is normally exercisable keeping in mind 13 W.P.No.1126/2016 the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorty, before invoking the jurisdiction of the High Court, the court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief. "
Therefore, one of the tenets of equity jurisdiction is to promote honesty and fair play. Further, a person with suppression of facts, at a long distance of time, cannot be permitted to invoke equitable jursdiction for undue advantage on the technical plea of law at the cost of bona fide benefeciaries with ripened third party rights by efflux of time.
13. Turnng to the facts of the case, the contention that physical possession of the land has not been taken from the petitioner, is more of desperation than of substance in the teeth of notice dated 05/01/2002 which was received by the petitioner on 14/01/2002 (Annexure R/3-1) for delivery of possession and thereafter on 17/01/2002 the possession has been taken with fixtures and structure [possession taking receipt (kabza receipt) (Annexure R/3-2)] and handed over to UDA wherein the revenue officer and officers of the UDA and panchas have appended their signatures.
14. The contention of learned senior counsel referring to the extracts of photocopies of note sheets/order sheets (internal correspondence) in the office of UDA that possession of structure (a shade evident from photographs) has not been removed is found to be of no substance at all as the possession receipt (Annexure R/3-2) itself suggests that the physical possession including the fixtures and structure has been taken and petitioner though called upon to remove the said shade, avoided the same. This by itself does not suggest that the possession of the land was not taken in the eyes of law.
15. The Hon'ble Supreme Court in the case of Banda Development Authority Vs. Moti Lal Agarwal, (2011) 5 SCC 394 culled out the following propositions and followed subsequently in number of cases:
"(i) No hard-and-fast rule can be laid down as to what act would constitute taking of possession of the 14 W.P.No.1126/2016 acquired land.
(ii) If the acquired land is vacant, the act of the State authority concerned to go to the spot and prepare a panchnama will ordinarily be treated as sufficient to constitute taking of possession.
(iii) If crop is standing on the acquired land or building/structure exists, mere going on the spot by the authority concerned will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the authority concerned will have to give notice to the occupier of the buildings/structure or the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchnama. Of course, refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken.
(iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures on such document.
(v) If beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3-A) and substantial portion of the acquired land has been utilised in furtherance of the particular public purpose, then the court may reasonably presume that possession of the acquired land has been taken."
In the opinion of this Court, present case falls under (ii) and
(iv) and, therefore, physical possession of the land can be said to have been taken from the petitioner.
16. The next contention advanced by learned Senior Counsel relates to non-payment of compensation. Before adverting to the same, it is apposite to observe that the scheme underlying the Act of 1894 relating to "Payment" under Part V, wherein section 31 suggests that on making of Award under section 11, the Collector shall tender payment of compensation awarded to the persons entitled under the Award and shall pay the compensation to them, unless prevented by one or more contengencies, as mentioned in subsection (2). Sub-section (2) conceives four contingencies viz. (1) if persons entitled do not consent to receive compensation; (2) there is no person competent to alienate the land (no title); (3) dispute subsists as to title to receive the compensation and/or (4) there is a dispute as regards apportionment of compensation. Under such circumstances, the Collector is required to deposit the amount of compensation in the Court to which a reference 15 W.P.No.1126/2016 under section 18 would be submitted. Failure to comply with the provisions of section 31 entails consequences as embodied in section 34 of the Act of 1894 providing for payment of interest on such amount of compensation, either not paid, or deposited by the Collector, as per the rate of interest prescribed therein.
17. In the instant case, after passing of Award dated 7/9/2001, notice under section 12(2) of the Act of 1894 was issued calling upon the petitioner to bring no dues certificate from Tahsildar, as well as, NOC from the competent Authority under the Urban Land Ceiling Act that land in question is free from ceiling and there is no title dispute. The land admeasuring 0.188 hectare of petitioner's ownership has been subject matter of ceiling proceedings vide Case No. 166 x 6/76-77 at the relevant point of time. Requirement of submission of NOC from the competent Authority, as indicated in the notice, was mandatory in view of State Government notification dated 01/11/1990 before petitioner could be said to be entitled to receive compensation. However, petitioner never responded to the said notice. All such land owners entitled to receive compensation since had submitted the NOC from the Ceiling Authority were paid the compensation, as evident from the record of the case. Thus, after passing of Award dated 7/9/2001 and payment of compensation payable for the lands in question, followed by taking over of possession on 17/1/2002, the entire land under acquistion including Survey Nos. 69/3 and 70/2 stood vested with the State Government free from all encumbrances. Therefore, the contention of learned senior counsel for respondent No. 3 that in a completed acquisition proceedings, section 24(2) of the Act of 2013 has no application, has substantial force.
Moreover, after the petitioner failed to respond to the aforesaid notice, he was not entitled to receive compensation and, therefore, the stage of giving consent did not arise. As such, none of the contingencies, as contemplated under section 31 of the Act of 1894, had arisen obligating the Collector to deposit the amount of compensation in the Court. Under such circumstances, the ratio of decision in Pune Municipal Corporation Vs. Harakchand Misrimal Solanki ((2014)3 SCC 183) and 16 W.P.No.1126/2016 subsequent judgments of the Supreme Court and a Division Bench judgment of this Court relied upon by the petitioner; (a) Union of India and others Vs. Shivraj and others, (2014) 6 SCC 564; (b) Pune Municipal Corporation and another Vs. Harakchand Misirimal Solanki and others, (2014) 3 SCC 183;
(c) Bharat Kumar Vs. State of Haryana and another, (2014) 6 SCC 586; (d) Ratan Singh Vs. Union of India and another, (2015) 16 SCC 342; (e) Ram Kishan and others Vs. State of Haryana and others, AIR 2015 SC 440; (f) Magnum Promoters PVT. Ltd. Vs. Union of India and others, 2015 (3) MPLJ 540;
(g) Vijay Latka and another Vs. State of Haryana and others, (2016) 12 SCC 487; (h) Delhi Development Authority Vs. Sukhbir Singh and others, (2016) 16 SCC 258; (i) Purushottam Lal and others Vs. State of M.P. and others, 2016(1) MPLJ 32; (j) Government (NCT of Delhi) Vs. Manav Dharam Trust and another, (2017) 6 SCC 751 are not attracted to the facts in hand for a declaration that non-payment of compensation has led to lapse of acquisition proceedings by force of section 24(2) of the Act of 2013. Further, the judgments cited by learned counsel for the petitioner are distinguishable on facts as unlike cases cited, petitioner (i) at no point of time had challenged the notifications issued under sections 4(1) and 6 of the Act of 1894 or the aqusition proceedings itself; (ii) though served with notice under section 12(2) of the Act of 1894 chose not to respond and instead sought refernce to the Court under section 18 vide Case No.19/2003 and (iii) the order passed by the Reference Court on 31/1/05 has never been challenged and only in the year 2016, the instant writ petition is filed on technical plea based on section 24(2) of the Act of 2013.
18. Further, the word "Paid" is neither defined in the Act of 1894, nor in the Act of 2013. It is the past tense of word "Pay". Payment of compensation is contingent upon the requirement as contemplated under sub-section (2) of section 31 of the Act of 1894. The Concise Oxford English Dictionary (Tenth Edition- revised) defines 'payment' as '1. the action of paying or the process of being paid. 2. an amount paid or payable'. Webster Comprehensive Dictionary (International Edition) Volume two 17 W.P.No.1126/2016 defines 'payment' '1. the act of paying. 2. Pay; requittal; recompense'. The Law Lexicon, 2nd Edition reprint by P.Ramanatha Aiya, inter alia, states 'payment is defined to be the act of paying, or that which is paid; discharge of a debt, obligation or duty; satisfaction of claim; recompense; the fulfillment of a promise or the performance of an agreement; the discharge in money of a sum due.' To appreciate the meaning of words "person has not been paid" used in section 24(2) of the Act of 2013, the same have to be juxtaposed with the conditions stipulated in sub-section (2) of section 31 of the Act of 1894. If a person interested is not found entitled in view of sub-section (2) of section 31 of the Act of 1894 by the competent Authority, he cannot complain of non-payment of compensation, or for that matter non deposit of amount of compensation in the Court. Under such circumstances, non deposit of amount of compensation in the Court shall not tantamount to non-payment of compensation as couched in section 24(2) of the Act of 2013 leading to lapse of acquisition proceedings.
19. In view of the aforesaid facts and circumstances and the original record of the case, it is evident that petitioner has consciously not mentioned about the notice issued to the land owners under section 12(2) of the Act of 1894 referred above and that a ceiling case vide Case No. 166 x 6/76-77 in relation to his land was pending at the relevant point of time. As such, it is a case of suppression of facts as well. Besides, petitioner sought reference under section 18 of the Act of 1894 and thereafter did not choose to challenge findings recorded in the reference case decided on 31/01/2005 (supra) to the effect that petitioner has received compensation though under protest and delivered possession of the land. Relevant part of the order quoted below:
"3. izdj.k esa fufoZokn rF; ;g gS fd mTtSu fodkl izkf/kdj.k dh ;kstuk dz- ih&8@90 f=os.kh fogkj Hkwi ua-1 ds rgr vkoklh; ,oa O;kolkf;d iz;kstu gsrq Hkwfe vf/kxzfgr dh x;h gSA Hkw&vtZu vf/kfu;e dh /kkjk 4¼1½ dh vf/klwpuk dz- 6004 fnukad 04&08&1998 dk izdk'ku e-iz- jkti= Hkkx&1 esa fnukad 11&09&1998 dks ist dz- 1826 ij fd;k x;k rFkk mDr vf/klwpuk dk izdk'ku fgUnh lekpkji= nSfud f{kizk ds Lrj ,oa nSfud iztknr esa fnukad 11&08&1998 dks fd;k x;kA vf/kfu;e dh /kkjk 6 dh vf/klwpuk dk izdk'ku e-iz- jkti= Hkkx&1 esa ist dza- 1586&87 ij fnukad 10&09&1999 dks fd;k x;k ftldk 18 W.P.No.1126/2016 izdk'ku nSfud vfXuiFk ,oa nSfud vofUrdk esa fnukad 08&09&1999 dks fd;k x;kA vf/kfu;e dh /kkjk 4¼1½ dh vke lwpuk tfj;s rglhynkj dk;kZy;hu i= dz- D;w-@Hkwfe lEiknu @98@12711 fnukad 23&12&1998 dks djk;k x;kAA vf/kfu;e dh /kkjk 9¼1½ dh vke lwpuk dz-D;w-@Hkwfe lEiknu@99@10938 fnukad 12&09&1999 dks rglhynkj ds ek/;e ls djk;k x;kA {kfriwfrZ 6]05]000@& izfr gsDVs;j dh nj ls iznk; dh x;h gSA oknxzLr Hkwfe dk vkf/kiR; izkFkhZ ls izkIr dj izfrizkFkhZ mTtSu fodkl izkf/kdj.k dks iznku fd;k tk pwdk gSA izkFkhZ }kjk {kfriwfrZ jkf'k v.Mj izksVsLV izkIr dh x;h gSA"
That apart, petitioner chose not to obtain the NOC from the Ceiling Authority as contemplated in the notice under section 12(2) of the Act of 1894. Under such circumstacnes, the alleged non-payment of compensation to the petitioner cannot be countenanced in the context of section 24(2) of the Act of 2013. Even otherwise, the case does not fall in any of the exceptions carved out under sub-section (2) of section 31 of the Act of 1894. Hence, in the opinion of this Court, section 24(2) of the Act of 2013 has no application to the facts of the case.
20. In the backdrop of the aforesaid discussion and contentions advanced by learned counsel for the parties and bearing in mind the concept of equity jurisdiction of this Court under Article 226/227 of the Constitution of India, this Court is of the firm opinion that no interference is warranted in this writ petition seeking quashment of notification dated 04/08/1998 under section 4(1) of the Act of 1894; Award dated 07/09/2001 passed by the Land Acquisition Officer; cancellation of the lease deed (Annexure A/3) executed by respondent No.3 in favour of respondent No.4, filed in the year 2016 at a distance of time of more than 18 years. The view taken by this Court finds support from the judgments of the Apex Court in the cases of Northern India Glass Industries Vs. Jaswant Singh and others AIR 2003 SC 234, Chairman and M.D.B.P.L.Ltd., Vs. S.P.Gururaja and others AIR 2003 SC 4536 and Jasveer Singh and another Vs. State of U.P. (2017) 6 SCC 787.
In the result, the petition fails and is, accordingly, dismissed.
(Rohit Arya) Judge
- 01-2018 b/-
Digitally signed by M V R BALAJI SARMA 19 W.P.No.1126/2016HIGH COURT OF MADHYA PRADESH, BENCH INDORE SINGLE BENCH:
Writ Petition No.1126 of 2016Surjit Singh Sahani Vs. State of M.P., and others ORDER Post for : /01/2018 (Rohit Arya) Judge /01/2018