Gujarat High Court
Jamubhai Keshavbhai & 17 vs Collector & 3 on 22 December, 2014
Equivalent citations: AIR 2015 (NOC) 549 (GUJ.), 2015 AIR CC 604 (GUJ)
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt, Z.K.Saiyed
C/SCA/6570/1998 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 6570 of 1998
With
CIVIL APPLICATION NO. 12360 of 2013
In
SPECIAL CIVIL APPLICATION NO. 6570 of 1998
With
SPECIAL CIVIL APPLICATION NO. 6381 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE Z.K.SAIYED
================================================================
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, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
================================================================ JAMUBHAI KESHAVBHAI & 17....Petitioners Versus COLLECTOR & 3....Respondents ================================================================ Appearance:
(MR BJ JADEJA), ADVOCATE for the Petitioners No. 1 , 3 - 4 , 6 - 8 , 13 - 18 Page 1 of 50 C/SCA/6570/1998 CAV JUDGMENT MR YATIN OZA, SR. ADVOCATE WITH MR. RAJESH K. SAVJANI WITH MR H M JADEJA, ADVOCATE for the Petitioners No. 2 , 5 , 6.1 - 6.3 , 10 , 12 MR ANSHIN H DESAI, ADVOCATE for the Petitioners No. 9 - 9.7 MR NIKHIL S KARIEL, ADVOCATE for the Petitioner No. 11 DS AFF.NOT FILED (N) for the Respondent No. 3 MR NJ SHAH, LD. AGP for the Respondents No. 1 - 2 MR PRASHANT G DESAI, ADVOCATE for the Respondents No. 4 ================================================================ CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 22/12/2014 COMMON CAV JUDGMENT (PER : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT)
1. The petitioners of Special Civil Application No. 6570 of 1998 have approached this Court by way of this petition under Article 226 of the Constitution of India with the following reliefs:
(A) That a writ of Certiorari or any other writ or order may please be issued - quashing and setting aside the order dated 3.8.1998 passed by the Dist. Collector, Surat allotting petitioners land in favour of Surat Municipal Corporation for water works plant at Rander.
(B) That a writ of mandamus or such other order may please be issued directing the respondents to allot the lands belonging to the petitioners and stated in order dated 3.8.1998 to the petitioners.
(C) That the respondents be directed to make allotment of land belonging to the petitioners which are Page 2 of 50 C/SCA/6570/1998 CAV JUDGMENT not included in the order dated 3.8.1998 to the petitioners forthwith.
(D) That during the pendency of the hearing and final disposal of the petition herein, the respondents their agents and sub-ordinates may please be injuncted from acting upon or in any manner implementing the Collectors order dated 3.8.1998 and disturbing petitioners possession of the land.
(E) Ad-interim relief in terms of (D) above may please be granted.
(F) Such other order or orders as in the interest of justice deemed proper."
Thus, what is essentially challenged under the petition is the order dated 3.8.1998 passed by the Collector, Surat allotting petitioners' land in favour of Surat Municipal Corporation for water works plant at Rander.
2. Pending the aforesaid Special Civil Application, one of petitioners i.e. petitioner no. 11 of aforesaid Special Civil Application, has moved one Civil Application No. 12360 of 2013 for the following reliefs:
(A) Your Lordships may be pleased to admit and allow the present Civil Application;
(B) Your Lordships may be pleased to direct the respondent authorities to re-grant / return such portion Page 3 of 50 C/SCA/6570/1998 CAV JUDGMENT of the land in question being land bearing revenue survey No. 330 situated at Mouje Rander, Taluka:
Choryasi, District: Surat, which is reserved for the purpose of "Commercial for Sale".
(C) Your Lordships be pleased to declare that the purpose of "Commercial for Sale" for which the land in question is sought to be used now is not a public purposes at all and as a consequences thereof be pleased to direct the respondent authorities to ensure that such portion of the land in question being land bearing revenue survey No. 330 situated at Mouje Rander, Taluka : Choryasi, District: Surat which is reserved for the purpose of "Commercial for sale" be returned / re-granted to the present applicant on such terms and conditions that may be thought fit and proper by this Hon'ble Court.
(D) Any other and further reliefs as may be deemed fit and proper in the interest of justice may also kindly be granted."
3. The petitioners of Special Civil Application No. 6381 of 2006 have approached this Court under Article 226 of the Constitution of India with following reliefs:
'(a) This Hon'ble Court be pleased to admit and allow this petition;
(b) This Hon'ble Court be pleased to issue a writ of mandamus and/or any other appropriate writ, order or Page 4 of 50 C/SCA/6570/1998 CAV JUDGMENT direction in the nature of mandamus commanding the respondents herein, more particularly respondent State of Gujarat as well as the Collector, Surat to act in compliance with the order dated 28.10.1993 and to re-
grant the land of survey No. 357/1 admeasuring 11534 sq.mt. or in other words 11 Hectares, 15 Are and 34 Sq.mt. Of the land to the petitioner subject to such terms and conditions as are stipulated in the said order and subject to terms and conditions as may be deemed just and reasonable and directed by this Hon'ble Court;
(c) This Hon'ble Court be pleased to issue an appropriate writ, order or direction quashing and setting aside the order dated 24.3.2006 and 16.3.2006.
(d) This Hon'ble Court be pleased to issue an appropriate writ, order or direction, inter-alia, declaring the action of the respondents herein in depriving the petitioners of land bearing Survey No. 357/1 admeasuring 11534 sq.mtrs or in other words 11 Hectares, 15 Are and 34 Sq.mtrs to be illegal, improper, erroneous, violation of both of law and on facts and violation of Articles 14, 19, 21 and 300-A of the Constitution of India.
(e) This Hon'ble Court be pleased to direct the respondents to re-grant the land of survey No. 357/1 admeasuring 11534 sq.mtrs or in other words 11 Hectares, 15 Are and 34 Sq.mtrs. at the market price at the time of passing of the order dated 28.10.1993 or at the rate at which compensation has been awarded to Page 5 of 50 C/SCA/6570/1998 CAV JUDGMENT the petitioners, whichever is higher as on the said date.
(f) Pending admission, hearing and/or final disposal of this Special Civil Application, this Hon'ble Court be pleased to restrain the respondents, their servants and agents from dispossessing the petitioners of possession of land of survey No. 357/1 admeasuring 11534 sq.mtrs or in other words 11 Hectares, 15 Are and 34 Sq.mtrs and be further pleased to restrain the respondents, their servants and agents from interfering with the carrying on agricultural operations on the land in question by the petitioners and their family members.
(g) Ex-parte ad-interim relief in terms of para (e) hereinabove be granted in favour of the petitioners and the same be confirmed after notice to the respondents.
(h) Costs of this petition be provided for to the petitioner.
(i) Such other and further reliefs as this Hon'ble Court may deem just and expedient be granted in favour of the petitioners."
Thus, what is essentially challenged in this petition is the order dated 24.3.2006 and 16.3.2006 and seeking direction in the nature of mandamus commanding the respondents authorities to act in compliance with order dated 28.10.1993 and to re-grant the land of survey No. 357/1 to the petitioners.
Page 6 of 50 C/SCA/6570/1998 CAV JUDGMENT4. The facts in brief, as could be culled out from the memo of petition of Special Civil Application No. 6570 of 1998 and Civil Application No. 12360 of 2013, deserve to be set out as under:
5. Facts of Special Civil Application No. 6570 of 1998:
6. The petitioners are agriculturists, belonging to economically weaker section of the society and are covered by Bakshi Panch. It is the case of petitioners that for the suit lands, on 18.5.1978, notification under Section 4 of the Land Acquisition Act (hereinafter referred to as 'the Act' for short) was issued and was published in the Government Gazette on 6.7.1978. Thereafter, the corrigendum to Section 4 notification was issued on 23.01.1979 and published in Government Gazette on 21.6.1979. The Section 6 notification was issued on 5.5.1979 under the Act and same was published in the Government Gazette on 29.9.1979. The Special Land Acquisition Officer passed an award on 28.01.1982 and awarded compensation at the rate ranging between Rs.3 to 13 per sq.mt. Against the meager amount of compensation awarded by the Land Acquisition Officer, petitioners preferred Reference before the District Court being L.R. No. 53 to 74 of 1983 and the District Court after hearing the parties, enhanced the compensation to Rs.15/- per sq.mt., against which, State Government preferred First Appeals being First Appeal No. 1297 of 1988, 1303 of 1988, 2769 of 1988, 2771 of 1988 etc. It is the case of petitioners that lands were acquired for construction of Tapi Embankment Scheme, the agricultural lands in areas Rander, Adajan and Jahangirpura etc. were acquired. It is the case of petitioners that on completion of the embankment scheme large parcel of valuable agricultural lands Page 7 of 50 C/SCA/6570/1998 CAV JUDGMENT remained surplus with the State Government and the State Government to make optimum use of agricultural land for agricultural purpose, directed the Collector to grant said lands to the erstwhile owners i.e. petitioners and other agriculturists initially on 'Ek Sali' basis on petitioners paying premium/rent to the Collector and accordingly petitioners were occupants of the lands allotted to them from the year to year and cultivated the land by growing tuver, other vegetables etc. The petitioners have also made representation dated 7.11.1990 to respondent authorities to return the surplus lands after completion of embankment scheme. It is the case of petitioner that vide order dated 10.4.1991, lands of Adajan were ordered to be returned to the erstwhile owners by Narmada & Jal Sampatti Vibhag Sangh. As regards the lands of Rander village, the State Government decided to release 2,45,011 meters of excess lands which remained unused as the embankment scheme got over and the State Government empowered the Collector to return the lands on permanent basis to the erstwhile land owners on 28.10.1993. It is stated that vide Resolution No. 2 dated 27.5.1994 passed by the General Body of Surat Municipal Corporation, it was resolved that water works plant was to be installed at Survey Nos. 103 to 109 at Jahangirpura. The petitioners came to know in respect of adjoining lands bearing Survey No. 313 and 314 admeasuring 18,753 sq.mt. on 6.9.1995 and the State Government on 30.12.1995 informed the petitioners and others to approach the Collector for return of lands. The petitioners represented the Collector from time to time and met the Collector personally with a prayer to return the lands. In the year December, 1995, the Executive Engineer, Surat Canal Division informed the District Court that the Government has decided to return the excess land to the land owners and Collector is entrusted with the said work of payment of interest amount to the land owners who have preferred Page 8 of 50 C/SCA/6570/1998 CAV JUDGMENT Land Reference shall be stopped. The Collector, Surat vide order dated 26.3.1997 ordered that the lands will be measured and returned and possession of the same be recorded in the village form records so that further action for valuation of the lands can be undertaken. It is the case of petitioners that owners of Survey No. 103 to 109 at Jahangirpura came to know their lands are being released to Sant Asaram Bapu Ashram instead of water works, filed a petition before this Court being Special Civil Application No. 303 of 1997 and this Court has passed interim order in said petition. Thereafter on 30.5.1998, the Commissioner of Surat Municipal Commissioner made a proposal for land be reserved for the purpose of water works. The petitioners on 24.7.1998 again represented pointing out that lands bearing Survey No. 103 to 109 are being released in favour of Sant Asaram Bapu Ashram, the petitioners lands are being acquired in lieu of those lands. On 3.8.1998, an order came to be passed behind the back of the petitioners without hearing and without issuing notice by Collector, Surat that the lands are reserved for water works instead of earlier purpose of acquisition for embankment scheme. On 5.8.1998, the petitioners came to know about the order dated 3.8.1998 as all of a sudden, a board was installed on the petitioners land which read 'without permission of S.M.C., nobody shall enter these lands which belonged to SMC.
7. This Court admitted the petition on 14.8.1998 and ad-interim stay of operation of the order dated 3.8.1998 was passed and the respondents were restrained from interfering with the petitioners carrying on their agricultural activities and residing on the lands which are covered by the aforesaid order dated 3.8.1998. On 21.9.1998, the reply affidavit is filed by the Town Planner, Surat on behalf of SMC, wherein, there was no answer to order dated Page 9 of 50 C/SCA/6570/1998 CAV JUDGMENT 3.8.1998, no answer to allegations against the lands being switched in favour of Sant Asaram Bapu Ashram except mere reference in the reply. In the year August, 2004, an affidavit-in-reply is filed by In-charge Deputy Collector stating that decision was taken to allot the land to SMC. On 8.12.2006, this Court allowed SCA No. 8955 of 1999, which is reported in 2007 (3) GLR 2012. Vide order dated 25/28.8.2008, LPA No. 182 of 2007 and allied matters were dismissed confirming the order of learned Single Judge. Vide order dated 30.01.2009, the Supreme Court dismissed the SLP (Civil) No. 113 of 2009.
8. Learned counsel appearing for the petitioners submitted that the order of Collector dated 3.8.998 is arbitrary, malafide, illegal and is passed on extraneous consideration, political considerations and is passed in colourable exercise of powers. Learned counsel for the petitioner also submitted that the impugned order is violative of principle of natural justice and passed in complete disregard of principles of fair play in action and without notice and/or hearing to the petitioners. Learned counsel for the petitioners submitted that the State Government has already in the year 1990-91 taken the decision based on the petitioners to return the surplus land remaining idle with it being far on excess of the land required for the embankment scheme and the Collector was entrusted with only implementing task to put in action the decision of the Government. The Collector had to formulate valuation of land, taking measurement of land to be returned, determine the amount to be received and part with possession of land. The Collector has no power or discretion to interfere with or modify or reverse the decision of State Government and therefore, the order of Collector making allotment of land in favour of SMC is bad in law.
Page 10 of 50 C/SCA/6570/1998 CAV JUDGMENT9. Learned counsel appearing for petitioners further submitted that the Collector has not followed the principles of natural justice, principle of fair play in action before passing the impugned order. It is submitted that the Collector ought to have given notice and opportunity of hearing to the petitioners, who are directly and vitally concerned with the said lands and in whose favour order to regrant was already made by the State Government. Learned counsel for the petitioners submitted that land owners of adjourning land being Survey No. 313 and 314, the Collector has re-granted the land to claimants. Learned counsel appearing for the petitioners submitted that the SMC in its General Board Meeting held on 27.5.1994 resolved to install water works plant at Jahangirpura Survey No. 103 to 109 and said resolution was based on detail survey conduced by its engineers and the Commissioner had accordingly requested the Collector to grant land bearing Survey No. 103 to 109 at Jahangirpura to SMC, as said lands are technically more suitable and economically and project will be more viable them the lands of petitioners at Rander. Instead of that, brushing aside the aforesaid facts, decision to take water works station to Rander is taken solely to please the sentiments of few disgruntled elements at the cost of public at large. Learned counsel appearing for the petitioners submitted that Supreme Court in number of decisions, held that State cannot be permitted to act like un-ruly horse and is governed by Rule of Law. All its decisions must be guided by discretion exercised on accordance with reason an not whim, caprice or political considerations.
10.Learned counsel appearing for the petitioners submitted that when there is a right developed in favour of the original owners of the agricultural lands, the lands for which the acquisition had taken place, it has been decided that the lands are not required for the Page 11 of 50 C/SCA/6570/1998 CAV JUDGMENT said purpose, similarly situated persons have been given back their pieces of lands; the decision is already taken and implemented and then, to pass the order in such a hasty manner of acquiring the land by exercise of powers under Section 17(1) of the Act by a sweeping order of taking the lands for other public purpose shows that there is a malafide intention and non-application of mind in passing the impugned order.
11.Learned counsel appearing for the petitioners submitted that it has been held by the Supreme Court that meaning of 'public purpose' in acquisition of land must by judged on touchstone of expanded view of fundamental rights. In the facts of present case, to invoke Section 17 of the Act for acquisition, the respondents cannot be permitted to justify the said act of re-acquiring the land without following any procedure once it has been decided to drop the acquisition proceedings as far as the lands belonging to the petitioners.
12.Learned counsel appearing for the petitioners in support of aforesaid contentions, relied on following decisions:
(I) (2012) 1 SCC 792 in case of Raghbir Singh Sehrawat Vs. State of Haryana and others;
(II) (2012) 9 SCC 503 in case of Patasi Devi Vs. State of Haryana and others;
(III) (2011) 5 SCC 394 in case of Banda Development Authority, Banda Vs. Motilal Agarwal and others;
(IV) (2011) 5 SCC 386 in case of Prahlad Singh and Page 12 of 50 C/SCA/6570/1998 CAV JUDGMENT others Vs. Union of India and Ors;
(V) (1976) 1 SCC 700 in case of Balwant Narayan Bhagde Vs. M.D. Bhagwat and others;
(VI) (2009) 8 SCC 339 in case of National Thermal Power Corporation Vs. Mahesh Dutta and ors;
(VII) 2014 STPL (Web) 593 SC in case of Shree Balaji Nagar Residential Association Vs. State of Tamil Nadu & Ors., (VIII) (2014) 3 SCC 183 in case of Pune Municipal Corporation and another Vs. Harakchand Misirimal Solanki and others;
(IX) (2014) 6 SCC 564 in case of Union of India and others Vs. Shiv Raj And other and allied matters;
(X) (2014) 6 SCC 583 in case of Bimla Devi and others Vs. State of Haryana and others;
(XI) (2014) 6 SCC 586 in case of Bharat Kumar Vs. State of Haryana and another;
13.Learned counsel appearing for respondent no.3 submitted that the petitioners are not in lawful possession of agricultural land as in fact, the Collector, Surat vide order dated 3.8.1998 allotted the land in question to respondent Corporation for public purpose of water works under Section 17(k) by change of purpose of reservation and possession of land in question is with respondent Corporation.
Page 13 of 50 C/SCA/6570/1998 CAV JUDGMENTLearned counsel appearing for respondent Corporation submitted that State Government had acquired the land under Land Acquisition Act for Para Yojana and after completion of Para Yojana the excess land has been allotted to the respondent Corporation for the public purpose i.e. water works for supply of water for the areas of Surat city like Rander, Adajana, Athwa, Umra etc. Learned counsel for the respondent Corporation submitted that land under revenue survey Nos. 103 to 109 are not under any private landlord but since they are under reservation, therefore, the same is belonging to Government and Government is owner of the lands in question and these lands are under reservation for the purpose of water works and therefore, Government cannot allot the said land to Sant Ashram or to any other private party. Learned counsel appearing for the respondent Corporation submitted that order of Collector is legal and proper and submitted that lands in question are under reservation as per the revised development plan of 1996 and as per proposal of respondent Corporation, the land, which is kept under reservation and by 'change in purpose' has been allotted to respondent Corporation vide Collector's order dated 13.8.1996 as Change in Purpose of reservation to SMC. The Government has handed over the possession to Corporation on 3.8.1998 in view of Resolution No. JMN/3994/575/G dated 21.5.1998, therefore, the petitioners cannot be allotted the lands in question.
14.Learned AGP appearing for respondent State Authority submitted that land belonging to petitioners have been acquired for the purpose of Tapi Embankment Scheme. After following all procedures under the Act, the land has been vested in the State of Gujarat. Some parcel of land have been utilized for the said scheme and remaining parcels of land have been used for other public Page 14 of 50 C/SCA/6570/1998 CAV JUDGMENT purpose as per provisions of Section 17-A of the Act and as per proposal of SMC, the State Government was pleased to permit use of said land by Municipal Corporation for the purpose of water works. In view of said, the State Government vide letter dated 3.8.1998 addressed to Collector, Surat and on said basis, the Collector, Surat passed impugned order dated 3.8.1998 allotting said land to SMC.
15.The petitioner No. 11 - applicant in Civil Application No. 12360 of 2013 has submitted that land of said applicant being revenue survey No. 330, which was lying unused after the embankment project was over, was admeasuring 4742 sq.mt., vide order dated 3.8.1998, the Collector allotted only 2222 sq.mt in favour of respondent Corporation. It is submitted that said land was retained on the ground that it was required for the purpose of building Water Works, which ground no longer survives since the entire waterworks project was shifted to Jahangirabad and the project has already been completed and running since last many years. The applicant submitted that after redistribution of land in question, land in question bearing revenue survey No. 330 has now been reserved in the TP Scheme as 'Commercial for sale' purpose and numbered as Final Plot No. 99 and submitted that land being sold for commercial use is nothing but an absolute in blatant profiteering by the respondent Corporation fro a land which was snatched away by invoking the provisions of Act and therefore, the applicant has approached this Court with a prayer to return said land to its original owner.
16.In the said Civil Application No. 12360 of 2013, no reply affidavit is filed by respondents.
Page 15 of 50 C/SCA/6570/1998 CAV JUDGMENT17.Facts of Special Civil Application No. 6381 of 2006 :
18.The petitioners are agriculturists by occupation and belonging to economically weaker sections of the society and the only livelihood of petitioners is survey No. 357/1 admeasuring 11,534 sq.mt., which belonged to one Mohd. Yakub Dudha, who expired , leaving behind three sons, namely, Ajam Mohd. Dudha, Ibrahim Mohd. Dudha and Mohd. Yakub Dudha. All the said three sons expired and present petitioners are heirs of Ibrahim Mohd. Dudha. Though the land has been subjected to acquisition under the provisions of Land Acquisition Act, the land continued to be in possession of the petitioners and petitioners are in fact carrying on agricultural operations and maintaining their family and their livelihood. The learned advocate for the petitioners has submitted that the history of the land is similar to history of Special Civil Application No. 6570 of 1998 and the stand of respondent authorities are also same and therefore, same are not repeated here but the land of petitioners bearing survey No. 357/1 is not part of the said order dated 3.8.1998 passed by the Collector. Here in the present case, in the year 2005, there was a proposal by GEB which by then had become Dakshin Gujarat Vij Co., who by letter dated 23.12.2005 addressed to the Collector that on account of technical reasons the land which was earlier proposed for establishment of 66 KVA sub-station was not suitable. That pursuant to efforts made by the petitioners to have the order of State Government passed in the year 1993 taking a decision to re-grant the lands implemented, the matter was proceeded at the level of the Collector and several representations made. That vide order dated 29.6.2004, the Revenue Department forwarded the application of the petitioners and directed that a report to be made to the Government and pursuant to same, a report dated NIL.7.2004 has been forwarded by Page 16 of 50 C/SCA/6570/1998 CAV JUDGMENT the Collector to Deputy Secretary. It is the case of petitioners that there was a proposal for 8 survey nos. forwarded on or about 3.7.2002 for additionally notifying the said 8 survey numbers, however, no decision was taken by the Government and it clearly states that possession was not handed over to the Surat Municipal Corporation. The land in question was originally acquired for the embankment scheme from the original land owners and thereafter, was placed in the Town Planning Scheme prepared by SUDA, the land was sought to be reserved for recreation purposes and thereafter according to preliminary Town Planning Scheme No. 14, the land is in agriculture zone and therefore, petitioners have requested for re-grant of land. It is also submitted that on 12.6.2005, Collector addressed a letter to the Commissioner pointing out that present petitioners had applied for re-grant of land of Survey No. 357/1 and the Chief Engineer, Gujarat Vij Company had originally demanded part of lands thereof for setting up a 66 KVA sub-station and submitted that SM for its water ward purpose has requested for the said land. Said letter also states that the land in question bearing Survey No. 357/1 was part of order dated 22.11.2000 and though the City Engineer had clearly opined that the land is not required for the water ward purpose of Rander, request was made to the Commissioner to view of that that no amount towards the present land in question was deposited to issue a No Objection Certificate. Learned counsel for the petitioners submitted he adopts all the grounds and contentions raised in Special Civil Application No. 6570 of 1998 in support of this petition also.
19.Learned counsel appearing for petitioners in support of his contentions relied upon following decisions:
Page 17 of 50 C/SCA/6570/1998 CAV JUDGMENT(I) (2012) 2 SCC 327 in case of Darshanlal Nagpal (dead) by Lrs. Vs. Government of NCT of Delhi and others; (II) (2011) 4 SCC 769 in case of Dev Sharan and others Vs. State of Uttar Pradesh and others, (III) (2013) 1 SCC 353 in case of Tukaram Kana Joshi and others Vs. Maharashtra Industrial Development Corporation and others;
(IV) (2013) 3 SCC 764 in case of Laxman Lal (Dead) through Lrs. Vs. State of Rajasthan and others; (V) (2010) 12 SCC 726 in case of Mohanlal Nanabhai Choksi Vs. State of Gujarat and others;
(VI) (2011) 5 SCC 553 in case of Radhy Shyam (Dead) through Lrs and others Vs. State of Uttar Pradesh and others;
(VII) (2008) 15 SCC 517 in case of N. Padmamma and others Vs. S. Rama Krishna Reddy and others; (VIII) (2005) 7 SCC 627 in case of Hindustan Petroleum Corpn. Ltd. Vs. Darius Shapur Chenai and others;
20.Learned counsel appearing for respondent Corporation submitted that the General Body of the SMC has passed Resolution No. 90/05 in its meeting dated 31.1.2005 and thereby it was resolved to obtain the land measuring 447887 sqmt from the State Government on the terms and conditions which was fixed by the State Government. It is also submitted that the SMC has deposited the amount of Rs.13,55,99,400/- for the land admeasuring 75333 sqmt being survey Nos. 302/P, 317, 318, 319, 357/1, 357/2, 359, 360 and 361/P with the State Government in pursuance of letter No. LAQ/Vashi/142/06 dated 10.2.2006. It is also submitted that vide Page 18 of 50 C/SCA/6570/1998 CAV JUDGMENT letter dated 23.8.2004, the State Government has alloted the land in question to respondent Corporation for the public purpose of water works including the recreation purpose. Learned counsel appearing for respondent Corporation submitted that it is settled position of law that if the land is not used for the purpose for which it was acquired, it is open to the State Government to take action but does not confer any right on the petitioner to ask for restitution of the land. Learned counsel submitted that after the public purpose was achieved, the rest of the land could be used for any other public purpose. Learned counsel for the respondent Corporation submitted that SMC has made proposal demanding the land bearing Survey No. 357/1 with other Revenue Survey numbers by letter No. TPD 4855 dated 8.12.1998 and the State Government has passed an order dated 23.8.2004 by which disputed land has been allotted to the SMC. Learned counsel appearing for the respondent Corporation submitted that though order of 1993 of State Government did not speak about the land in question but land admeasuring 75333 sq.mt. Including revenue survey No. 357/1 allotted to the SMC by State Government by order dated 22.11.2000 and amended list dated 23.8.2004. Learned counsel also submitted that the consideration for the said land, fixed by the valuation committee of the State Government has also been paid by SMC on 16.3.2006 and 24.3.2006 respectively and denied that SMC acquired the land and then sell it commercially as the Government has allotted the land on condition that the SMC should not sell the said land. Learned counsel for the respondent Corporation has submitted that pursuance to the letter dated 2.5.2005 of the Collector, Surat and letter dated 29.4.2005 of the Chief Engineer, South Gujarat Vij. Co. Ltd and letter dated 13.6.2005 of Additional Collector to issue NOC to establish 60 KV sub-station on 6000 sq.mt. of revenue survey No. 357/1. Learned Page 19 of 50 C/SCA/6570/1998 CAV JUDGMENT counsel appearing for respondent Corporation submitted that land in question has been given OP No. 95/A and said land has been kept in residential zone. Learned counsel for the respondent Corporation also submitted he adopts all the grounds and contentions raised in Special Civil Application No. 6570 of 1998 in support of this petition also.
21. Learned AGP appearing for respondent no. 1 in this petition submitted that the land in question was acquired for the public purpose under the provisions of the Land Acquisition Act, for which the Award was declared on 21.1.1982 and petitioners have received an amount of compensation at the relevant point of time when the lands were acquired and on completion of embankment project on river Tapi, the office of respondent no. 2 vide letter dated 28.10.1993 informed about the excess land to the office of the Superintending Engineer and he in turn, vide letter dated 16.9.1995, informed the Collector, Surat about the same and the Collector vide order dated 26.3.1997 vested the lands mentioned in the schedule attached with in the name of Government. Thereafter, SMC vide his letter dated 26.5.1998 asked for allotment of excess land and vide order dated 3.8.1998 the State Government granted some land in favour of SMC. Thereafter, SMC again moved proposal vide letters dated 6.7.1998 and 8.4.1998 for allotment of land for recreation purpose of water works and land in question was included in said proposal and State Government vide order dated 23.8.2004 granted permission of change in public purpose under Section 17(A) of the Act. Learned AGP also submitted that the SMC has paid the amount fixed by Valuation Committee. Learned AGP for the respondent State also submitted he adopts all the grounds and contentions raised in Special Civil Application No. 6570 of 1998 in support of this petition also.
Page 20 of 50 C/SCA/6570/1998 CAV JUDGMENT22.Learned counsel appearing for respondent Corporation in support of his contentions in both the petitions, relied upon following decisions:
(I) AIR 2005 SC 492 in case of Govt. of A.P. and another Vs. Syed Akbar;
(II) 1997 (5) SCC 432 in case of C. Padma and others Vs. Dy.
Secretary to the Govt. of T.N. and others; (III) AIR 1997 SC 448 in case of Chintaman and another Vs. State of Maharashtra and another; (IV) 1996 (6) SCC 405 in case of Chandragauda Ramgonda Patil and another Vs. State of Maharashtra and others;
(V) 1997 (2) SCC 627 in case of C. Padma and others Vs. Dy.
Secretary to the Govt. of T.N. And others; (VI) 2003(1) SCC 335 in case of Northern Indian Glass Industries Vs. Jaswant Singh and others; (VII) AIR 2014 SC 2377 in case of Ahmedabad Municipal Corporation & Anr. Vs. Ahmedabad Green Belt Khedut Mandal & Ors.
(VIII) AIR 2001 Guj 316 in case of
23. Learned AGP Mr. N.J. Shah for respondent State in both the matters, in support of his submission relied on following decisions:
(I) 2014 (6) SCC 564 in case of Union of India and ors. Vs. Shiv Raj and others and allied matters; (II) 2005(1) GLR 338 in case of Sanmukhbhai Bhikhabhai Patel & Ors. Vs. State of Gujarat and ors;Page 21 of 50 C/SCA/6570/1998 CAV JUDGMENT
24. The Court has heard learned counsel for the parties and perused the documents appended to the memo of petitions.
25. Before adverting the rival submission of the learned advocate for the parties, it would be most appropriate to set out the few indisputable aspects emerging therefrom which will in fact help in understanding the scope and purview of the petitioners and the challenged contained therein.
(i) The land in question which originally belonged to the petitioners were subject matter of acquisition under the provisions of the Land Acquisition Act, 1894.
(ii) The notification under Section 4 of the Act came to be issued on 18.5.1978, as the land was required to be acquired for Tapi Embankment on river Tapi.
(iii) The Section 4 notification was published on 6.7.1978 and it was gazetted on 23.01.1979.
(iv) The Section 6 notification was issued on 5.5.1979 and it was gazetted on 29.9.1979.
(v) The final award came to be passed on 28.01.1982, originally awarding compensation in the range of Rs.3/- to 13/- per Sq.mt.
(vi) The affected parties challenged the same in the Reference being Land Reference No. 53 to 74 of 1983 and the Reference Court enhance the same said amount to the tune of Rs.15/- per sq. mt.
Page 22 of 50 C/SCA/6570/1998 CAV JUDGMENT(vii) This enhancement was assailed by the State by preferring First Appeals being First Appeal Nos. 1297 of 1988, 1303 of 1988, 2769 of 1988, 2771 of 1988 etc.
(viii) Thus, total land parcels of 3 villages of Surat District had been acquired namely Rander, Adajan and Jahangirpura.
(ix) As per the say of the petitioners even after the completion of embankment work, large parcel of agricultural lands had remained surplus hence the State Government with a view to make optimum use of the agricultural land directed the District Collector to grant those lands to the erstwhile owners i.e. the petitioners and also other agriculturists on "Ek Sali" basis on petitioners payment premium/rent to the Collector.
(x) The petitioners made representation on 7.11.1990 to respondent authorities to regrant them the surplus land after completion of the embankment scheme. The petitioners urged that the authorities had vide order dated 10.4.1991 returned the land of Adajan village to the erstwhile owners through Narmada and Jal Sampati Vibhag Sangh.
(xi) The land within the prescient of Rander village, the State Government decided to regrant 2,45,011 sq.mt of excess land and collector was empowered to return the land on permanent basis to the erstwhile land owners on 28.10.1993.
(xii) The Surat Municipal Corporation passed a resolution No. 2 on 27.5.1994 for installation of Water Works Plant at survey No. Page 23 of 50 C/SCA/6570/1998 CAV JUDGMENT 103 to 109 at Jahangirpura.
(xiii) The Collector, Surat vide order dated 26.3.1997 ordered measurement of the land for the purpose of returning it to the land owners.
(xiv) The petitioners have averred in the memo of petition that owners of Survey No. 103 to 109 at Jahangirpura came to know that their lands were being released to Sant Aasharam Bapu Ashram instead of Water Works, filed a writ petition being Special Civil Application No. 303 of 1997, wherein the Court passed interim order.
(xv) On 30.5.1998, the Commissioner of Surat Municipal Corporation made a proposal for land to be reserved for the purpose of water works.
(xvi) The petitioners made representation on 24.7.1998 agitating that as the land of survey Nos. 103 to 109 were being released in favour of Sant Ashram Bapu Ashram, the petitioners were being taken in lieu of those lands.
(xvii) On 3.8.1998, an order came to be passed as alleged without hearing the petitioners. The lands were reserved for water works.
(xviii)On 5.8.1998, as per the order passed on 3.8.1998, the board put up on the land.
(xix) The petitioners moved petition and on 14.8.1998 stay order came to be passed on the impugned order.
Page 24 of 50 C/SCA/6570/1998 CAV JUDGMENT(xx) So far as the facts of the SCA No. 6381 of 2006 are concerned, it can be said that it pertained to the survey No 357/1 admeasuring 11534 sq.mt.
(xxi) The counsel submitted that the back ground of the petition is like that of SCA No. 6580 of 1998, however, it was submitted that the land bearing survey No 357/1 was not part of the order dated 3.8.1998.
(xxii) The petitioners have averred in the petition that in the year 2005, there was a proposal by GEB, which now have become Dakshin Gujarat Vij Co. that on account of technical reason, the land which was proposed for establishment of 66 KVA substation was not suitable.
(xxiii)Pursuant to the efforts made by the petitioners to have land regranted to them, and vide letter dated 29.6.2004, the revenue department forwarded the application of the petitioners and directed that the report be made to the Government.
(xxiv) The decision of the Government was awaited.
(xxv) The land in question was originally acquired for the embankment scheme and thereafter it came to be placed in a TP scheme prepared by SUDA.
(xxvi) The land is sought to be reserved for recreation purpose.
(xxvii) The land is said to be an agricultural zone as per Preliminary Page 25 of 50 C/SCA/6570/1998 CAV JUDGMENT Town Planning Scheme No. 14, hence petitioners made request for regrant of the same.
(xxviii) On 12.6.2005, the Collector addressed a letter to the Commissioner, pointing out that the present petitioners had applied for regrant of survey No. 357/1 and Chief Engineer of Gujarat Vij Co. had originally demanded part of the land for setting up 66 KVA substation and it was suggested that the land was part of the order dated 22.11.2000.
(xxix) The request was made to the Commissioner to review.
(xxx) The Corporation counsel has as per the Resolution of the SMC No. 90/2005 in its meeting held on 25.1.2005 for obtaining the land admeasuring 447887 sq.mt from the State Government on the terms and conditions that may be fixed by the State Government.
(xxxi) The SMC has deposited an amount of Rs. 135599400/- for the land admeasuring 75333 sq.mt. being survey No 302/P, 317, 318, 319, 357/1, 357/2, 359, 360 and 361/P pursuant to the letter No LAQ/VASHI/142/06 dated 10.02.2006.
(xxxii) The State Government has allotted the land in question to the respondent Corporation for the purpose of water works including the recreation purpose.
(xxxiii) It is averred on behalf of the SMC that the order of 1993 of the State Government did not refer to the land in question but land admeasuring 75333 sq.mt. including revenue survey No. 357/1 allotted to SMC by State Government by order dated 22.11.2000 and as amended list dated 23.8.2004 and hence they Page 26 of 50 C/SCA/6570/1998 CAV JUDGMENT belonged to SMC.
(xxxiv) The consideration for the said land as fixed by the Valuation Committed of the State Government has been paid by the SMC on 16.3.2006 and 24.3.2006 respectively.
(xxxv) That pursuant to the letter dated 2.5.2005 of the Collector, Surat and letter dated 29.4.2005 of the Chief Engineer, South Gujarat Vij. Co. Ltd and letter dated 13.6.2005 of Additional Collector to issue NOC to establish 60 KV sub-station on 6000 sq.mt. of revenue survey No. 357/1. Learned counsel appearing for respondent Corporation submitted that land in question has been given OP No. 95/A and said land has been kept in residential zone.
(xxxvi) As per the submission of learned AGP appearing for respondent no. 1 in this petition submitted that the land in question was acquired for the public purpose under the provisions of the Land Acquisition Act, for which the Award was declared on 21.1.1982 and petitioners have received an amount of compensation at the relevant point of time when the lands were acquired and on completion of embankment project on river Tapi, the office of respondent no. 2 vide letter dated 28.10.1993 informed about the excess land to the office of the Superintending Engineer and he in turn, vide letter dated 16.9.1995, informed the Collector, Surat about the same and the Collector vide order dated 26.3.1997 vested the lands mentioned in the schedule attached with in the name of Government.
(xxxvii) Thereafter, SMC vide his letter dated 26.5.1998 asked for Page 27 of 50 C/SCA/6570/1998 CAV JUDGMENT allotment of excess land and vide order dated 3.8.1998 the State Government granted some land in favour of SMC. Thereafter, SMC again moved proposal vide letters dated 6.7.1998 and 8.4.1998 for allotment of land for recreation purpose of water works and land in question was included in said proposal and State Government vide order dated 23.8.2004 granted permission of change in public purpose under Section 17(A) of the Act.
(xxxviii) As per submission of learned AGP the SMC has paid the amount fixed by Valuation Committee.
26.Against the aforesaid backdrop of almost indisputable aspect, this Court is called upon to examine the claim of the petitioners which is essentially claimed for regrant of their parcels of land which had been acquired way back in the year 1978 and the acquisition came to be finalized in the year 1983. The land parcels had changed many hands. Therefore, these petitions which are mainly for the purpose of direction of regrant of lands will have to be viewed in light of the development of law in this behalf.
27.In the entire Act of 1894, there existed no provisions for regrant or reallotment of the land which has been acquired by the State. One may consider the provisions of Section 48 of the Act, which reads as under:
"Section 48: Completion of acquisition not compulsory, but compensation to be awarded when not completed,-
(1) Except in the case provided for in section 36, the Government shall be at liberty to withdraw from the Page 28 of 50 C/SCA/6570/1998 CAV JUDGMENT acquisition of any land of which possession has not been taken.
(2) Whenever, the Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings, thereunder, and shall pay such amount to the person interested, together with all costs, reasonably incurred by him in the prosecution of the proceedings of the under this Act relating to the said land.
(3) The provisions of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this Section."
28.Even this Section cannot be said to be a Section, which empowers the acquiring authority to consider regrant or reallotment of the lands to the original owners. This provisions is merely providing for liberty to withdraw from the acquisition proceeding meaning thereby the Acquiring Authority is at liberty to withdraw from the proceedings before they attained finality in form of Award of compensation and payment of compensation etc.
29.The Supreme Court in case of CHANDRAGAUDA RAMGONDA PATIL AND ANOTHER VS. STATE OF MAHARASHTRA AND OTHERS, reported in (1996) 6 SCC 405, observed as under:
"para-2 Shri Naik, learned senior counsel appearing for the petitioners, contended Page 29 of 50 C/SCA/6570/1998 CAV JUDGMENT that in the second writ petition, the petitioner sought restitution of the possession pursuant to the Resolution of the State Government dated October 10, 1973 under which Government directed that the surplus land was to be utilized first for any other public purpose and in the alternative it was to be given back to the erstwhile owners. Since he had sought enforcement of the said Government Resolution, the writ petition could not be dismissed on the ground of constructive res judicata. He also seeks to rely upon certain orders said to have been passed by the High Court in conformity with enforcement of the Government Resolution. We do not think that this Court would be justified in making direction for restitution of the land to the erstwhile owners when the land was taken way back and vested in the Municipality free from all encumbrances. We are not concerned with the validity of the notification in either of the writ petitions. It is axiomatic that the land acquired for a public purpose would be utilized for any another public purpose, though use of it was intended for the original public purpose. It is not intended that any land which remain unutilized, should be restituted to the erstwhile owner to whom adequate compensation was paid according to the market value as on the date of the notification. Under these circumstances, the High Court was well justified in refusing to grant relief in both the writ petitions."
30.The Supreme Court has time and again in unequivocal terms laid down emphatically that the erstwhile owners of the land have no right whatsoever to seek either regrant or repurchase of the land only on the strength of they being erstwhile owners. The Supreme Court has in case of STATE OF KERALA AND OTHERS, VS. M. Page 30 of 50 C/SCA/6570/1998 CAV JUDGMENT BHASKARAN PILLAI AND ANOTHER, reported in (1997) 5 SCC 432, held as under:
"para-4 In view of admitted section that the land in question was acquired under the Land Acquisition Act, it stood vested in the State free from all encumbrances. The question emerges:
whether the Government can assign the land to the erstwhile owners? It is settled law that land is acquired for a public purpose was achieved, the rest of the land could be used for any other purpose. In case there is no other public purpose for which the land is needed, then instead of disposal by way of sale to the erstwhile owner, the land should be put to public auction and the amount Fetched in the public auction can be better utilized for the public purpose envisaged in the Directive Principles of Constitution. In the present case, what we find is that the executive order is not in consonance with the provision of the Act and is, therefore, invalid. Under these circumstances, the Division Bench is well justified in declaring the executive order as invalid. Whatever assignment is made, should be for a public purpose. Otherwise, the land of the Government should be sold only through the public actions so that the public also gets benefited by getting higher value."
31.The Supreme Court in case of C. PADMA AND OTHERS VS. DY. SECRETARY TO THE GOVT. OF T.N. AND OTHERS, reported in (1997) 2 SCC 627, observed as under:
"para-5: Shri G. Ramaswamy, learned senior counsel appearing for the appellants, contends that when by operation of Section 44-B read with Section 40 of the Act, the public purpose ceased to be existing, the acquisition became bad and therefore, the G.O. Was bad in law. We find no force in the contention. It is seen that after the Page 31 of 50 C/SCA/6570/1998 CAV JUDGMENT notification in G.O.R.1392 dated October 17, 1962 was published, the acquisition proceeding had become final, the compensation was paid to the appellants' father and thereafter the lands stood vested in the State. In terms of the agreement as contemplated in Chapter VII of the Act, the company had delivered possession subject to the terms and conditions thereunder. It is seen that one of the conditions was that on cessation of the public purpose, the lands acquired would be surrendered to the Government. In furtherance thereof, the lands came to be surrendered to the Government for resumption. The lands then were allotted to SRVS Ltd., 5th respondent which is also a subsidiary amalgamated company of the original company. Therefore, the public purpose for which acquisition was made was substituted for another public purpose. Moreover, the question stood final settled 32 years ago and hence the writ petition cannot be entertained after three decades on the ground that either original purpose was not public purpose or the land cannot be used for any other purpose."
32.The Supreme Court in case of NORTHERN INDIAN GLASS INDUSTRIES VS. JASWANT SINGH AND OTHERS, reported in (2003) 1 SCC 335, observed as under:
"para-9 Looking to the facts of the present case and conduct of the respondents 1-5, the High Court was not at all justified in ignoring the delay and latches and granting relief to them. As already noticed, the respondent 1-5 approached the High Court by filing writ petition almost after a period of 17 years finalization of the acquisition proceedings. They accepted the compensation amount as per the award and sought for enhancement of the compensation amount without challenging the notification issued under Section 4 and 6. Having sought for enhancement of compensation only, they filed writ petition even three years after the appeals were disposed Page 32 of 50 C/SCA/6570/1998 CAV JUDGMENT of by the High Court in the matter of enhancement of compensation. There is no explanation whatsoever for the inordinate delay in filing the writ petitions. Merely because full enhanced compensation amount was not paid to the respondents, that itself was not a ground to condone the delay and latches, in filing the writ petition. In our view, the High Court was also not right in ordering restoration of land to the respondents on the ground that the land acquired was not used for which it had been acquired. It is well-settled position in law that after passing the award and taking possession under Section 16 of the Act, the acquired land vests with the Government free from all encumbrances. Even if the land-is not used for the purpose for which it is acquired, the land owner does not get any right to ask for revesting the land in him and to ask for restitution of the possession. This Court as early as in 1976 in Gulam Mustafa V. State of Maharashtra in para-5 has stated thus: (SCC p. 802 para-5) "5.At this stage Shri Deshpande complained that actually the municipal committee had sold away the excess land marking them out into separate plots for a housing colony. Apart from the fact that a housing colony is a public necessity, once the original acquisition is valid and title has vested in the municipality, how it uses the excess land is no concern of the original owner and cannot be the basis for invalidating the acquisition. There is no principle of law by which a valid compulsory acquisition stands voided because long after the requiring authority diverts it to a public purpose other than the one stated in the Section 6(3) declaration."
10. In Chandraguda Ramgonda Patil and Anr. v. Slate of Maharashtra and Ors., [1996] 6 SCC 405, it is stated that the acquired land remaining Page 33 of 50 C/SCA/6570/1998 CAV JUDGMENT unutilized was not intended, to be restituted to the erstwhile owner to whom adequate compensation was paid according to the market value as on the date of notification.
11. Yet again in C. Padma Vs.. Dy. Secretary to the Government of T.N., it is held that acquired land having vested in the State and the compensation having been paid to the claimant, he was not entitled to restitution of possession on the ground that either original public purpose had ceased to be in operation or the land could not be used for other purpose.
12. If the land was not used for the purpose for which it was acquired, it was open to the State Government to take action but that did not confer any right on the respondents to ask for restitution of the land. As already noticed, the State Government in this regard has already initiated proceedings for resumption of the land. In our view, there arises no question of any unjust enrichment to the appellant company."
33.The Supreme Court in case of GOVT. OF A.P. AND ANOTHER VS. SYED AKBAR, reported in (2005) 1 SCC 4558, observed as under:
"10. It is neither debated nor disputed as regards the valid acquisition of the land in question under the provisions of the Land Acquisition Act and the possession of the land had been taken. By virtue of Section 16 of the Land Acquisition Act, the acquired land has vested absolutely in the Government free from all encumbrances. Under Section 48 of the Land Acquisition Act, Government could withdraw from the acquisition of any land of which possession has not been taken. In the instant case, even under Section 48, the Government could not withdraw from acquisition or to reconvey the said land to the respondent as the possession of the land had already been taken. The position of law is well settled. In State Page 34 of 50 C/SCA/6570/1998 CAV JUDGMENT of Kerala and Ors. Vs. M. Bhaskaran Pillai, para of the said judgment reads (SCC p.433):-
"4. In view of the admitted position that the land in question was acquired under the Land Acquisition Act, 1894 by operation of Section 16 of the Land Acquisition Act, it stood vested in the State free from all encumbrances. The question emerges whether the Government can assign the land to the erstwhile owners? It is settled law that if the land is acquired for a public purpose, after the public purpose was achieved, the rest of the land could be used for any other public purpose. In case there is not other public purpose for which the land is needed, then instead of disposal by way of sale to the erstwhile owner, the land should be put to public auction and the amount fetched in the public auction can be better utilized for the public purpose envisaged in the Directive Principles of the Constitution. In the present case, what we find is that the executive order is not in consonance with the provision of the Act and is, therefore, invalid. Under these circumstances, the Division Bench is well justified in declaring the executive order as invalid. Whatever assignment is made, should be for a public purpose. Otherwise, the land of the Government should be sold only through the public auctions so that the public also gets benefited by getting a higher value."
11. In that case, an extent of 1.94 acres of land was acquired in 1952 for construction of National Highway and the construction was completed in 1955 in 80 cents of land and the balance of land remained unused. The remaining land was sought to be sold to the land owner at the same rate at which the compensation was awarded under Section 11. This again was challenged in the writ petitions. The Government tried to sustain the action on the basis of the executive order issued by the Government for permission for alienation of the land. On these facts, the position of law was made clear in para 4 extracted above. Thus, it is clear that under Section 16 of the Land Acquisition Act, the acquired land should vest in Page 35 of 50 C/SCA/6570/1998 CAV JUDGMENT the State free from all encumbrances and that any executive order inconsistent with the provisions of Land Acquisition Act was invalid. Further that if the land is acquired for a public purpose, after the public purpose was achieved, the rest of the land could be used for any other public purpose. In our view, this decision supports the case of the appellants fully.
12. In the case Chandragauda Ramgonda Patil vs. State of Maharashtra, claim of the petitioner for restitution of the possession of the land acquired pursuant to the resolution of the State Government was rejected. In para 2, this Court observed thus:-
(SCC p. 406) "2........ We do not think that this Court would be justified in making direction for restitution of the land to the erstwhile owners when the land was taken way back and vested in the Municipality free from all encumbrances. We are not concerned with the validity of the notification in either of the writ petitions. It is axiomatic that the land acquired for a public purpose would be utilized for any other public purpose, though use of it was intended for the original public purpose. It is not intended that any land which remained unutilized, should be restituted to the erstwhile owner to whom adequate compensation was paid according to the market value as on the date of the notification. Under these circumstances, the High Court was well justified in refusing to grant relief in both the writ petitions."
13. Yet in another recent decision, this Court in Northern Indian Glass Industries vs. Jaswant Singh referring to the case of Chandragauda Ramgonda Patil and other cases held that : (SCC p.340, para 12) "12. If the land was not used for the purpose for which it was acquired, it was open to the State Government to take action but that did not confer any right on the respondents to ask for restitution of the land".
Page 36 of 50 C/SCA/6570/1998 CAV JUDGMENTParas 10 and 11 of the said judgment read thus:- (SCC p.340) "10. In Chandragauda Ramgonda Patil vs. State of Maharashtra, it is stated that the acquired land remaining unutilized was not intended to be restituted to the erstwhile owner to whom adequate compensation was paid according to the market value as on the date of notification.
11. Yet again in C.Padma Vs. Dy. Secy. To the Govt. of T.N., it is held that acquired land having vested in the State and the compensation having been paid to the claimant, he was not entitled to restitution of possession on the ground that either original public purpose had ceased to be in operation or the land could not be used for other purpose."
14. From the position of law made clear in the aforementioned decisions, it follows that (1) under Section 16 of the Land Acquisition Act, the land acquired vests in the Government absolutely free from all encumbrances; (2) the land acquired for a public purpose could be utilized for any other public purpose; and (3) the acquired land which is vested in the Government free from all encumbrances cannot be re-assigned or re-conveyed to the original owner merely on the basis of an executive order."
34.The Supreme Court in case of V. CHANDRASEKARAN AND ANOTHER VS. ADMINISTRATIVE OFFICER AND OTHERS, reported in (2012) 12 SCC 133, observed as under:
"25. It is a settled legal proposition, that once the land is vested in the State, free from all encumbrances, it cannot be divested and proceedings under the Act would not lapse, even if an award is not made within the statutorily stipulated period. (Vide: Awadh Bihari Yadav v. State of Bihar &. Ors., U.P. Jal Nigam v. Kalra Page 37 of 50 C/SCA/6570/1998 CAV JUDGMENT Properties (P) Ltd.; Allahabad Development Authority v. Nasiruzzaman, M. Ramalinga Thevar v. State of T.n.; and Government of A.P. v. Syed Akbar).
26. The said land, once acquired, cannot be restored to the tenure holders/persons-
interested, even if it is not used for the purpose for which it was so acquired, or for any other purpose either. The proceedings cannot be withdrawn/abandoned under the provisions of Section 48 of the Act, or under Section 21 of the General Clauses Act, once the possession of the land has been taken and the land vests in the State, free from all encumbrances. (Vide: State of M.P. v. Vishnu Prasad Sharma; Lt. Governor of Himachal Pradesh v. Avinash Sharma,; Satendra Prasad Jain v. State of U.P.; Rajasthan Housing Board & Ors. v. Shri Kishan and Dedicated Freight Corridor Corporation of India v. Subodh Singh).
27. The meaning of the word 'vesting', has been considered by this Court time and again. In Fruit and Vegetable Merchants Union v. Delhi Improvement Trust, this Court held that the meaning of word 'vesting' varies as per the context of the Statute, under which the property vests. So far as the vesting under Sections 16 and 17 of the Act is concerned, the Court held as under.- (AIR p.353, para 19) "19. ......In the cases contemplated by Sections 16 and 17, the property acquired becomes the property of Government without any condition or ;
limitations either as to title or possession. The legislature has made it clear that vesting of the property is not for any limited purpose or limited duration."
Page 38 of 50 C/SCA/6570/1998 CAV JUDGMENT28. In Gulam Mustafa v. State of Maharashtra, in a similar situation, this Court held as under:-
(SCC p. 802, para 5) "5. ...Once the original acquisition is valid and title has vested in the Municipality, how it uses the excess land is no concern of the original owner and cannot be the basis for invalidating the acquisition. There is no principle of law by which a valid compulsory acquisition stands voided because long later the requiring Authority diverts it to a public purpose other than the one stated in the ....declaration."
29. Similarly, in State of Kerala v. M. Bhaskaran Pillai, this Court held as under: (SCC p.433, para
4) "4. ...It is settled law that if the land is acquired for a public purpose, after the public purpose was achieved, the rest of the land could be used for any other public purpose. In case there is no other public purpose for which the land is needed, then instead of disposal by way of sale to the erstwhile owner, the land should be put to public auction and the amount fetched in the public auction can be better utilized for the public purpose envisaged in the Directive Principles of the Constitution.
(emphasis supplied) (See also: C. Padma v. Government of Tamil Nadu; Bhagat Singh v. State of U.P.; Niladri Narayan Chandradhurja v. State of West Bengal; Northern Indian Glass Industries v. Jaswant Singh; and Leelawanti & Ors. v. State of Haryana).
Page 39 of 50 C/SCA/6570/1998 CAV JUDGMENT30. In Government of Andhra Pradesh & Anr. v.
Syed Akbar, this Court considered this very issue and held that, once the land has vested in the State, it can neither be divested, by virtue of Section 48 of the Act, nor can it be re-conveyed to the persons-interested/tenure holders, and that therefore, the question of restitution of possession to the tenure holder, does not arise. (See also: Pratap v. State of Rajasthan;
Chandragaudaj Ramgonda Patil v. State of Maharashtra; State of Kerala & Ors. v. M. Bhaskaran Pillai; Printers (Mysore) Ltd. v. M.A. Rasheed; Bangalore Development Authority v. R. Hanumaiah; and Delhi Airtech Services (P) Ltd. v. State of U.P. ).
31. In view of the above, the law can be crystallized to mean, that once the land is acquired and it vests in the State, free from all encumbrances, it is not the concern of the land owner, whether the land is being used for the purpose for which it was acquired or for any other purpose. He becomes persona non-grata once the land vests in the State. He has a right to only receive compensation for the same, unless the acquisition proceeding is itself challenged. The State neither has the requisite power to reconvey the land to the person-
interested, nor can such person claim any right of restitution on any ground, whatsoever, unless there is some statutory amendment to this effect."
35.The Supreme Court in case of MAHADEO (DEAD) THROUGH LRS. AND OTHERS, VS. STATE OF UTTAR PRADESH AND OTHERS, reported in (2013) 4 SCC 524, observed as under:
"14. There is no dispute with regard to the settled proposition of law that once the land is acquired and mandatory requirements are complied with including possession having been taken the land vests in the State Government Page 40 of 50 C/SCA/6570/1998 CAV JUDGMENT free from all encumbrances. Even if some unutilised land remains, it cannot be re- conveyed or re-assigned to the erstwhile owner by invoking the provisions of the Land Acquisition Act. This Court in Govt. of A.P. And Anr. vs. V. Syed Akbar held that :- (SCC p.563, para-10) "10. It is neither debated nor disputed as regards the valid acquisition of the land in question under the provisions of the Land Acquisition Act and the possession of the land had been taken. By virtue of Section 16 of the Land Acquisition Act, the acquired land has vested absolutely in the Government free from all encumbrances. Under Section 48 of the Land Acquisition Act, Government could withdraw from the acquisition of any land of which possession has not been taken. In the instant case, even under Section 48, the Government could not withdraw from acquisition or to reconvey the said land to the respondent as the possession of the land had already been taken. The position of law is well settled. In State of Kerala and Ors. v. M. Bhaskaran Pillai para 4 of the said judgment reads: (SCC p. 433) "4. In view of the admitted position that the land in question was acquired under the Land Acquisition Act, 1894 by operation of Section 16 of the Land Acquisition Act, it stood vested in the State free from all encumbrances. The question emerges whether the Government can assign the land to the erstwhile owners? It is settled law that if the land is acquired for a public purpose, after the public purpose was achieved, the rest of the land could be used for any other public purpose. In case there is no other public purpose for which the Page 41 of 50 C/SCA/6570/1998 CAV JUDGMENT land is needed, then instead of disposal by way of sale to the erstwhile owner, the land should be put to public auction and the amount fetched in the public auction can be better utilized for the public purpose envisaged in the Directive Principles of the Constitution.
In the present case, what we find is that the executive order is not in consonance with the provision of the Act and is, therefore, invalid. Under these circumstances, the Division Bench is well justified in declaring the executive order as invalid. Whatever assignment is made, should be for a public purpose. Otherwise, the land of the Government should be sold only through the public auctions so that the public also gets benefited by getting a higher value."
16. Indisputably, land in question was acquired by the State Government for the purpose of expansion of city i.e. construction of residential/commercial building under planned development scheme by the Meerut Development Authority and that major portion of the land has already been utilized by the Authority. Merely because some land was left at the relevant time, that does not give any right to the Authority to send proposal to the Government for release of the land in favour of the land owners. The impugned orders passed by the High Court directing the Authority to press the Resolution are absolutely unwarranted in law."
36. Thus, the catena of decisions, few of which cited hereinanbove on the point of regrant of land unequivocally and consistently indicate that the land once acquired cannot be regranted or reallotted to the erstwhile owners only on the ground that the land originally belonged to them. The claim of the petitioners in both these Page 42 of 50 C/SCA/6570/1998 CAV JUDGMENT petitions is sought to be supported on account of the decisions cited at bar, but in our view those decisions are also of no avail to the petitioners.
37. The decisions cited at bar on behalf of the petitioners in case of Raghbirsingh Sehrawat Vs. State of Haryana and others, reported in (2012) 1 SCC 792, is in respect of the matters to be considered by the State while acquiring the land and it talks about how the actual possession is said to have been taken. In our view, this judgment cannot be said to have any impact upon the facts of present case as facts of present cases are peculiar, wherein the entire controversy revolves around regrant or restitution of the already acquired land at the behest of the erstwhile owners.
38. The another decisions cited at bar on behalf of the petitioners in case of Patasi Devi Vs. State of Haryana and others, reported in (2012) 9 SCC 503. This judgment also pertains to challenge to acquisition on the ground of colourable exercise of powers. The notification under Sections 4 and 6 recited that the land was acquired for public purpose but real object of acquisition was to benefit colonizer R-6 for development of area into residential colony. On these facts, it was found that the acquisition was vitiated due to colourable exercise of powers. Thus facts of that case of Patasi Devi (Supra) and ratio desidendi of that judgment cannot be said to be of any help to the petitioners as the petitioners substantive challenge is in respect of omission or inaction on the part of respondents in not exceeding to the requests for regrant of the land which were acquired way back in the year 1983.
Page 43 of 50 C/SCA/6570/1998 CAV JUDGMENT39.The counsel for the petitioners has relied upon decision of the Supreme Court in case of Banda Development Authority, Banda, Vs. Motilal Agarwal and others, reported in (2011) 5 SCC 394, probably to support his contention qua the factum of possession and method of taking possession. This judgment in our view rather reinforces the avowed principle enunciated by catena of decisions in respect of lack of power or authority in the State to return or regrant the land already acquired to the original owners. The observations of the Supreme Court in para-39 of decision would rather unequivocally go to indicate that there is no substance in the claim of the petitioners for getting the land back only on the strength of they being original owners of the land.
40. The decision cited at bar on behalf of the petitioners in case of Prahlad Singh and others Vs. Union of India and others reported in (2011) 5 SCC 386, is also in respect of what is actual possession taking procedure. This judgment in fact and ratio in our view cannot be said to be supporting the claim of the petitioners for restitution of land already acquired and vested in the State.
41. The another decisions cited at bar on behalf of the petitioners in case of Balwant Narayan Bhagde Vs. M. D. Bhagwat and others, reported in (1976) 1 SCC 700, is in fact the judgment which had been relied upon by the Supreme Court in case of Banda Development Authority (supra) and is essentially in respect of the mode and method of taking possession of the land in question. The Court is unable to agree to the submissions canvassed on behalf of the petitioners that the land could not have been taken validly in the possession of the respondents as the petitioners claimed to be still cultivating some part of the land. These facts need to be viewed along with the facts that the petitioners themselves have Page 44 of 50 C/SCA/6570/1998 CAV JUDGMENT claimed for restitution of the land and some part of the lands had been permitted to be used as "Ek Sali Basis". These factors cannot be ignored or overlooked and they would rather militate against the claim of the petitioners on the basis of their so called possession. The Court hastened to add here that the factum of possession is highly disputed by the respondent authorities and even 'Ek Sali' basis permissible use cannot be equated with possession de-jury as the vesting of the land original in the State was a historic fact completed in the year 1983, which no one can deny and hence the petitioners have no justification to claim restitution or restoration of the land in question.
42.The reliance was also placed upon the decision in case of National Thermal Power Corporation Vs. Mahesh Dutta and ors, reported in (2009) 8 SCC 339, in our view, the facts of that judgment would not support the case of the petitioners claim as there was withdrawal under Section 48 of the Act. The factum of possession, partial possession and high Court's power under Art. 226 of the constitution of India of going into disputed question of fact, is of no avail to the petitioners.
43. The other decisions cited at bar revolved around the challenge to the acquisition and/or factum of possession and law on lapsing of acquisition on account of advent of new Act with special emphasis upon the Section 28 would be of no avail to the petitioner. Peculiar facts of the present case and historic truth of acquisition being competed in the year 1983 and vesting of land in the authority would militated against the claim of restitution as nowhere in law till date, the erstwhile owners right to get their lands, restore is acknowledged or recognized and therefore, the petitioners have no right whatsoever in eye of law.
Page 45 of 50 C/SCA/6570/1998 CAV JUDGMENT44.The decision in case of Darshanlal Nagpal (dead) by Lrs. Vs. Govt. of NCT of Delhi and others, reported in (2012) 2 SCC 327, is in respect of the process of acquisition and the right of owners to be treated fairly. This decision in our view cannot be said to be in any manner affecting and/or whittling down the ratio laid down by the Apex Court in the aforesaid decisions so far as the claim of regrant of acquired land by the erstwhile owners is concerned.
45.The another authority of the Supreme Court relied in case of Dev Sharan and others Vs. State of Uttar Pradesh and others, reported in (2011) 4 SCC 769, is also in respect of the purport of Section 5A and Section 17(4) and "public purpose". The Court has acknowledged that though right to property is no more a fundamental right, but it is nonetheless a constitutional right as could be seen from Article 300-A. Even this judgment looking to the facts and ratio cannot be said to be having any effect of change in the law so far as claim of regrant or reallot by the erstwhile owners of the already acquired land is concerned.
46.The decision cited at bar on behalf the the petitioners in case of Tukaram Kana Joshi and others Vs. Maharashtra Industrial Development Corporation and others, reported in (2013) 1 SCC 353, is also of no avail to the petitioners as there appears to be a discussion on Article 300-A and requirement of due process of law for acquiring the property. In the instant case, the facts are eloquently clear that the acquisition in question had been over way back in the year 1983 itself. This judgment itself in our view cannot be said to be any avail to the petitioners.
Page 46 of 50 C/SCA/6570/1998 CAV JUDGMENT47. The another decision cited at bar on behalf of the petitioners in case of Laxman Lal (Dead) through LRs Vs. State of Rajasthan and others, reported in (2013) 3 SCC 764. That also is a judgment on exercise of powers under Section 17(1) read with Section 17(4) and Section 5 of the Acquisition Act. The facts and ratio desidendi of that judgment cannot be said to have any effect upon the ratio laid down by the Supreme Court in cases cited hereinabove on the point of restitution or regrant of already acquired land to the erstwhile owner only on the ground of they being original owners.
48.The another decision cited at bar on behalf of the petitioners in case of Mohanlal Nanabhai Choksi Vs. State of Gujarat and others, reported in 2010 (12) SCC 726, in respect of challenging the acquisition proceeding itself on account of the special Act, and the facts being different than those of the cases on hand, cannot be said to be of any avail to the petitioners.
49.The another decision cited at bar on behalf of the petitioners in case of Radhy Shyam (Dead) through Lrs. and others, Vs. State of Uttar Pradesh and others, reported in (2011) 5 SCC 553. That facts of this decision are also revolving around the challenge to the acquisition proceedings on account of invocation of Section 17(1) power and dispensation of inquiry under Section 5(A) of the Act. The ratio desidendi on the judgment bases upon those facts will have no bearing upon the claim of the petitioners nor the same can have any effect of either whittling down or nullifying the ratio laid down by the Supreme Court in cases where the Supreme Court has in terms deprecated action of the State in attempting to restore the acquired land to the erstwhile owners.
Page 47 of 50 C/SCA/6570/1998 CAV JUDGMENT50.The rest of the decisions namely the judgment reported in (2008) 15 SCC 517, in case of N. Padmamma and others Vs. S. Rama Krishna Reddy and others, and judgment reported in (2005) 7 SCC 627 in case of Hindustan Petroleum Corpn. Ltd Vs. Darius Shapur Chenai and others, are also of no avail to the petitioners.
51.We are also unable to agree with the counsel for the petitioners that there is a case of discrimination as the counsels have contended that the State Government has in case of some land owners already regranted the land in their favour. The said submission in our view would hardly help the petitioners as the submission is not supported by any factual aspects worth consideration. The fact requires to be noted that assuming for the sake of examining without holding that there exists an action of the State Government in regranting of the land to some of the erstwhile owners, then also the said action being palpable illegal and contrary to the ratio laid down by the Supreme Court decisions in respect of the question of regrant would not entitled the petitioners to place plea of discrimination into service.
52. The petitioners counsels' claim in respect of the subsequent development dehors the interim relief enuring in the first petition is also of no avail, as there cannot be any doubt to the proposition that the act of authorities done dehors the orders of the Court would not get any sanctity nor would it be tenable but in absence of any articulate plea, pleading and procedure, couple with fact that the substantive challenge itself is not tenable in eye of law, the said plea of subsequent orders by the respondents would pail into insignificance. The observations in case of Banda Development Authority, Banda (supra) of the Supreme Court need to be borne in mind, which would dissuade the Court from disturbing the settled Page 48 of 50 C/SCA/6570/1998 CAV JUDGMENT position.
53. The petitioners own pleading and the facts on record unequivocally go to indicate that the claim of the petitioners in respect of the possession or petitioners attempt to dispute possession would be contradictory to their own claim. The petitioners have themselves stated in the petitions that the acquisition proceedings have gone upto First Appeal and the acquisition had attained finality in terms of the land being vested in the State. The subsequent development of the permissive use either by way of 'Ek Sali' or otherwise, cannot help the petitioners in claiming better right for restoration of the land, which would be contrary to the decisions of the Supreme Court cited hereinabove indicating that there exists no provisions in law, which would ever justify the action of State in restoring the acquired land to the erstwhile owners only on the strength of they being erstwhile owners. Such an action would be viewed to be anathema to the avowed principle of fair play enshrined under Article 14 of the Constitution of India.
54. The contention of learned counsel for the petitioners that there was change in usage of the land which was not for public purpose, is not tenable in eye of law, as the land once vested in the State, the State has absolute authority to change the purpose. The 'public purpose' is required to be understood in a proper prospective and therefore, the change in purpose alone would not merit consideration as to dub that change to be non-public purpose. The Supreme Court has in case of Chandragauda Ramgonda Patil (supra) reported in 1996 (6) SCC 405 and other similar decisions, held that the land owners have no right to claim about the change of the user and seek restitution of land, which has been acquired Page 49 of 50 C/SCA/6570/1998 CAV JUDGMENT long back and vested in the State.
55.For the aforesaid reasons, this court is of the view that both the petitions have no merit and therefore, they are required to be dismissed and hereby they are dismissed. Interim orders, if any, stand vacated. However, there shall be no order as to costs.
56. In view of the order passed in Special Civil Application No. 6570 of 1998, no order in Civil Application No. 12360 of 2013 and is disposed of accordingly. No costs.
(S.R.BRAHMBHATT, J.) (Z.K.SAIYED, J.) FURTHER ORDER:
Learned counsels appearing for the petitioners requested for continuation of the interim relief, which was granted earlier for a period of 6 weeks. The Court is of the view that as the interim relief is enuring since 1998, let there be extension thereof till 23.01.2015.
(S.R.BRAHMBHATT, J.) (Z.K.SAIYED, J.) pallav Page 50 of 50