Bablu vs State Of Uttarakhand And Others

Sudhanshu Dhulia, J

The present petition has been filed by the petitioner before this Court seeking a writ, order or direction in the nature of mandamus commanding the respondents to release the land in question bearing Khasra No. 157 to 162 in terms of Section 24(2) of Right to Fair Compensation & Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

The land of the petitioner was acquired vide notification dated 08.02.1962 way back in the year 1962. Nevertheless the above relief is being sought by the petitioner in view of the fact that in one of the many rounds of litigations at the hands of the petitioner and other similarly situated persons, when the writ petition of the petitioner was ultimately dismissed, and similar was the fate of the special appeal, he finally approached the Hon'ble Apex Court. The Hon'ble Apex Court while dismissing the S.L.P. had passed the following orders:

"Taken on Board.

Learned counsel for the petitioner, on instructions, seeks permission of this Court to withdraw this special leave petition with liberty to avail the remedies available to him under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

Permission sought for is granted.

The special leave petition is dismissed as withdrawn. It is made clear that we have expressed no opinion on merits."

In view of the above order. The petitioner has now approached this Court yet again with the prayer as made above.

Initially the acquisition to which the present dispute relates was done as far back as in the year 1961 when a notification under Section 4 of the Land Acquisition Act, 1894 (from hereinafter referred to as the Old Act) was made on 15.11.1961. Thereafter an urgency clause was invoked under Section 5-A of the Old Act on 31.01.1962 and Section 6 notification under the Old Act was issued on 8.02.1962. The acquisition was of a vast tract of land spreading over nine revenue villages in the erstwhile Tehsil of Haridwar, which at the relevant time was a part of District Saharanpur in the erstwhile State of Uttar Pradesh Now it is in district Haridwar a part of Uttarakhand territory, after the reorganistion of the State, vide U.P. Reorganisation Act, 2000. The acquisition of this land was done for public purposes which was for establishment of one of the biggest industrial units of public sector called Bharat Heavy Electricals Equipment Limited (i.e. BHEL), which is presently running at that place since more than five decades.

Meanwhile an application was moved by the petitioner along with others, before the Special Land Acquisition Officer for release of the acquired land. This was in the year 2006. After filing of the said application, he filed a writ petition bearing No. Writ Petition (M/B) No. 1225 of 2006 before this Court seeking directions to the Special Land Acquisition Officer to decide the application of the petitioner. An order was passed in Writ Petition (M/B) No. 1225 of 2006 on 27.09.2006 and directions were given to the Special Land Acquisition Officer to decide the application of the petitioner. The said application was dismissed by the Special Land Acquisition Officer on 02.02.2007.

Present petitioner thereafter filed a revision (bearing No. 01/2014-15), after more than seven years, before the Additional Commissioner, which was allowed by the order of the Additional Commissioner on 27.11.2015 directing that the name of BHEL be deleted from the revenue records.

Evidently this order was passed without even making the BHEL (which was the beneficiary of the land acquisition), a party. Being aware of the order dated 27.11.2015 BHEL filed a writ petition bearing No. 353 of 2016 (M/S), Bharat Heavy Electricals Ltd. v. Bablu and others". This writ petition was allowed by order dated 30.08.2016 and the order of the Commissioner dated 27.11.2015 was quashed. The order dated 30.08.2016 was challenged in special appeal, which was dismissed in limine. Thereafter the petitioner filed an SLP being SLP No. 29801 of 2016, "Bablu v. Bharat Heavy Electricals Limited and others", which was dismissed as withdrawn vide order dated 07.10.2016 with liberty to the petitioner to avail remedy under Section 24(2) of the New Act, as already referred above.

Now on a limited question as to the remedy of the petitioner under Section 24 of the New Act, the petitioner has filed the present writ petition. All the same, the relief clause of the petition does not limit his case only to that extent. The prayer of the petitioner read as under:

"(i) to issue a writ, order or direction in the nature of Mandamus commanding the respondents to release the land in question bearing Khasra No. 157 to 162 vide notification dated 08-02-1962 from Land Acquisition Proceedings in terms of Section 24(2) of Right to Fair Compensation & Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013."

The petitioner relies upon Section 24 (2) of the New Act.

Section 24 of the New Act reads as under:-"24. Land Acquisition Process under Act No. 1 of 1894 shall be deemed to have been lapsed in certain cases. - (1) Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894), -

(a) where no award under Section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; or

(b) where an award under Section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed.

(2) Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 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."

In the present acquisition proceeding which was initiated under the Old Act, Section 4 notification was issued on 15.11.1961. Thereafter urgency clause was invoked under Section 5-A on 31.01.1962, Section 6 notification was issued on 09.02.1962 and the award was passed on 16.03.1963.

Evidently the case of the petitioner is not covered under Section 24(1) of the New Act. Section 24(2) of the New Act is an exception which starts with a non obstante clause, which carves out an exemption which brings a case outside the purview of the old Act and within the purview of new Act. This is a situation where either the physical possession of the land has not been taken or compensation has not been paid in cases where an award has been made five years prior to the commencement of the new Act.

The fact that the compensation has been paid to the petitioner is even admitted by the petitioner. So it is not a case where compensation has not been paid to him. The question is only of "possession", and the entire case of the petitioner revolves around "possession". In case the possession of the petitioner has not been taken as yet by BHEL, the petitioner would be entitled for benefits under sub-section (2) to Section 24 of the New Act, otherwise not.

All the same, the fact that the physical possession has already been taken from the petitioner is a well established fat. It is clear from the evidence which has come in a number of writ petitions before this Court and before other courts. A specific reference is made of a Civil Suit No. 192 of 2005 filed by Sardara Singh, predecessor in interest of the petitioner against BHEL for injunction in which the temporary injunction application was rejected vide order dated 23.10.2013 on ground that possession of the petitioner was not established. Against the order rejecting the temporary injunction application, a misc. appeal was filed being Misc. Civil Appeal No. 08 of 2013, which was also dismissed by the appellate court on 04.11.2016.

Meanwhile, another writ petition was filed by Sardara Singh, the predecessor in interest of the petitioner, before this Court being Writ Petition (M/S) No. 1954 of 2007 "Sardara Singh v. State of Uttarakhand", in which the present petitioner was subsequently substituted. Other similarly situated persons also filed Writ Petition (M/S) No. 1100 of 2007 and Writ Petition (M/S) No. 1890 of 2007. The sole question in these writ petitions was whether the land which was acquired under the Old Act and has remained unutilized and therefore whether it can be re-conveyed or reassigned to its erstwhile owner. A Coordinate Bench of this Court came to the conclusion that the property was mutated in the name of BHEL in the revenue records which negates the contention of the petitioners that they are sill continuing the possession over the acquired land. The land is in possession of BHEL. As regards return of land, relying upon the decision of Hon'ble Apex Court in the case of State of Kerala v. M. Bhaskaran Pillai, reported in (1997) 5 SCC 432, the learned Single Judge came to the conclusion that the writ petition of the petitioner is entirely misconceived and the Special Land Acquisition Officer rightly rejected the claim of the petitioner vide order dated 02.02.2007.

In the present writ petition though there is no mention of any special appeal being filed against the order of the learned Single Judge yet the fact of the matter is that challenging the judgment of the learned Single Judge a special appeal was filed before the Division Bench of this Court, which was also dismissed by judgment dated 15.07.2019. The operative portion of the judgment dated 15.07.2019 passed by the Division Bench reads as under:

"28. For the reasons aforementioned, we are satisfied that the order under appeal does not suffer from any legal infirmity warranting interference in an intra-court appeal. The Special appeal fails and is, accordingly, dismissed. No costs."

The Division Bench while dismissing the special appeal of the petitioner had also made reference of a Public Interest Litigation being Writ Petition (PIL) No. 77 of 2011 and a number of writ petitions which were decided on 21.5.2015 and which all by and large on the same subject matter, where again a finding of the Division Bench was that the possession has been delivered to the BHEL and the PIL was disposed of in that terms. Therefore the reliance of the petitioner on the letter of the Joint Secretary dated 21.02.1971 which was issued after nine years of the acquisition has absolutely no relevance. The petitioner is not in possession of the land in question.

It is necessary to mention here that the petitioner continues to rake this claim on the basis of this order dated 21.02.1971, of the erstwhile State of U.P., although there is a categorical finding of the Court that no reliance can be given on this letter after nine years when the possession was given. A finding which was upheld in special appeal. The letter/order dated 21.02.1971 states that if certain land after acquisition has remained unutilized, it should be given back to the owners after taking the compensation back from them. All the same, the findings are that the land is being utilized by BHEL and therefore not liable to be returned.

The reference to this letter/order dated 21.02.1971 is there in the order of the learned Single Judge dated 30.05.2019 (Writ Petition No. 1100 of 2007) and in order dated 15.07.2019 which was passed by the Division Bench in Special Appeal No.658 of 2019. Both the courts have dealt with the worth and the worthiness of this order and have categorically held that no benefit of this order can be given to the petitioner. In paragraph nos. 18 & 19 of the order, the Division Bench has stated as under:-

"18. On the other hand, Section 48 of the Land Acquisition Act prohibits the State Government from withdrawing from acquisition, once possession of the land has been taken. It defies reasons that the Joint Secretary of the State Government should issue proceedings dated 21.02.1971, (nearly nine years after possession of the land was taken by the State Government, and was delivered to BHEL) for resumption of the subject land, and for it to be delivered back to the applicant-writ petitioners.

It is, ex facie, evident that the said letter of the Joint Secretary dated 21.02.1971 falls soul of Section 48 of the Land Acquisition Act. In any event, such executive instructions cannot be enforced in writ proceedings under Article 226 of the Constitution of India. (JR Raghupathy vs. State of A.P.: (1988)4 SCC 364; and Union of India vs. S.L. Abbas: (1993) 4 SCC 357)."

The petitioner then relies upon a decision of Hon'ble Apex Court in the case of Delhi Development Authority v. Virender Lal Bahri and others, reported in 2019 SCC Online SC 279. The question which came up before the Hon'ble Apex Court in the Delhi Development Authority case was broadly for the interpretation of Section 24 of the New Act. The High Court of Delhi, in a judgment dated 21.05.2015 (Tarun Pal Singh v. Lieutenant Governor, Government of NCT of Delhi, W.P. (C) 8596/2014), held that the proviso to Section 24 would govern only Section 24(1) (b), and not Section 24(2). Later in appeal filed against the said judgment, the Hon'ble Apex Court in the case of Delhi Metro Rail Corporation v. Tarun Pal Singh, (2018) 14 SCC 161 took a view that the proviso to Section 24 governs Section 24(2) and not Section 24(1)(b). The net result of the judgment of the Hon'ble Apex Court was that many of the later judgment which followed the earlier judgment of Delhi High Court i.e. Tarun Pal Singh (supra), were also upset. In Delhi Metro Rail Corporation case (supra), it was held by the Hon'ble Apex Court that the proviso of Section 24 is the proviso to sub-section (2) of Section 24 and it cannot be read as proviso to section 24(1) (b) of the New Act. The reasoning given by the Hon'ble Apex Court in the case of Delhi Metro Rail Corporation case is as follows:

"31. The proviso to Section 24(2) contemplates a situation where with respect to majority of the holding compensation not deposited event of minority of holding the landowners are paid, meaning thereby that for majority of the landholding in case amount is deposited acquisition is saved by the proviso. The proviso in fact extends the benefit even to those landholders who have received compensation as per the 1894 Act. Thus all landholders are to receive benefit of higher and liberal compensation under the 2013 Act. This situation is one where land acquisition proceedings shall not lapse and are saved. The purpose and object of the proviso is to give benefit of computation of compensation to all landholders and to save land acquisition proceedings. Hence, it is evident that the proviso is appropriately be treated as a proviso to sub-section (2) of Section 24 and cannot be read as proviso to Section 24(1)(b) of the 2013 Act."

In short what is relevant is that when an award has been made under the provisions of the old Act five years or more prior to the commencement of the new Act but either the possession of the land has not been taken or compensation has not been paid, the proceedings under the Old Act would stand lapsed.

The fact that the compensation has been paid and is received is admitted by the petitioner. The only question is regarding possession. Regarding possession, the petitioner relies upon the decision of the Hon'ble Apex Court in the case of Banda

Development Authority, Banda v. Motilal Agarwal and others, reported in (2011) 5 SCC 394, where it has been held as follows:

"The principles which can be culled out from the abovenoted judgments are:

(i) No hard-and-fast rule can be laid down as to what act would constitute taking of possession of the 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 building/structure or the person who has cultivated the land and take possession in 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 utilized in furtherance of the particular public purpose, then the court may reasonably presume that possession of the acquired land has been taken."

Even in terms of what has been said by the Hon'ble Apex Court in the case of Banda Development Authority (supra), there is absolutely no doubt that the possession has been taken from the petitioner of the land which was duly acquired. The entire compensation has also been deposited. The case of the petitioner is not covered by any of the contingencies referred in the above paragraph.

The petitioner, however, continues to file one petition after another, beating a dead issue. Moreover, he has also not come with clean hands before this Court, as he has not disclosed before this Court about filing of the earlier petition, which were only brought to the notice of this Court by the learned Senior Counsel for the respondent. For this reason this writ petition is dismissed with a cost of Rs. 1,00,000/- (Rupees One Lakh only) which shall be deposited in the Registry within three weeks from the date a certified copy of the order is prepared.