Fusa Ram vs State of Rajasthan and Others

Sunil Ambwani, C.J.

We have heard Mr. M.S. Godara, learned counsel appearing on behalf of the appellants and Mr. P.C. Sharma, learned counsel for the respondents.

This intra court appeal arises out of the judgment and order of the learned Single Judge dated 19th August, 2013 passed in connected writ petitions viz; SBCWP No. 137/2011 "Fusa Ram and ors. v. State of Rajasthan and ors."; SBCWP No. 8452/2008 "Vijay Raj Mehta v. State of Rajasthan and ors."; and SBCWP No. 7160/2011 "Nirmal Jeet Kaur and anr. v. State of Rajasthan and ors.", dismissing the writ petitions. The petitioners had challenged the proceedings of land acquisition under the Land Acquisition Act, 1894 (for short, "the Act") by the State Government for the Rajasthan Housing Board, of 400 bighas and 1 biswa in various Khasras of revenue village Kudi Bhagtasni, Tehsil Jodhpur, vide notification dated 13.6.1991 under Section 4(1) of the Act, whereby 1255 bighas 10 biswas agriculture land in the village was proposed to be acquired for a housing colony to be developed by the Rajasthan Housing Board. The notification under Sec. 6(1) of the Act was published in the Rajasthan Gazette on 14.8.1992 for acquisition of 400 bighas and 1 biswa of land fit for acquisition for public purposes. The award for compensation was passed on 6.8.1994 and the possession thereof was taken and handed over to the Rajasthan Housing Board on 11.4.2000. The compensation under the award was deposited by a cheque in the court of Civil Judge, Jodhpur on 11.4.2007.

The petitioner Fusa Ram and nine others challenged the land acquisition proceedings vide Notification under Sec. 4(1) of the Act dated 16.6.1991, Notification u/s. 6(1) dated 14.8.1992 and award dated 6.8.1994 in SBCWP No. 137/2011 after a period of 17 years. They also prayed for a direction to the respondents to decide the representation and in the alternative, if acquisition is necessary in public interest, direct the respondents to award compensation etc. to the petitioners on the basis of present prevailing market rates and 25% developed and commercial land in a recognized scheme of the respondents to the petitioners.

The acquisition of land was challenged on the ground that the petitioners are in the peaceful possession of the ancestral agriculture land from which they cannot be dispossessed without following the due process of law. The acquisition is violative of Articles 14, 19(1)(g) and 21 of the Constitution of India. It was submitted that the acquisition of land recorded in Khasra Nos. 276, 451/276 and 452/276 belonging to the petitioners is illegal and grossly violative of principles of natural justice. The mandatory requirement of law about the publication, affixture and individual notices under Sec. 5A cannot be said to have been complied with in its true sense. Since last 16-17 years, after initiation of acquisition proceedings, the Rajasthan Housing Board has not framed any scheme. The State as well as the Rajasthan Housing Board cannot sit tight over the matter for such a long time and that the very purpose of acquisition for want of implementation of the project is frustrated and the delay in implementation of the scheme is conclusive of colourable exercise of power in acquiring the land.

Learned Single Judge after discussing the facts of the case and the challenge to the acquisition on the grounds, referred to the reply of the respondent-Board that the land acquisition proceedings stood concluded with the issue of award of compensation on 6.8.1994 after approval of the State Government vide letter No. F-7(67) UDH/90 dated 3.8.1994, of which the possession was handed over to the Board on 11.4.2000. The land had vested free from all encumbrances in the Board and, thus, the writ petition filed 17 years after acquisition, and 11 years after taking over the possession, was barred by gross laches and was misconceived. The award u/s. 12 of the Act is final and conclusive evidence between the Collector and the persons interested, whether they had appeared before the Collector or not, of the true area and value of the land and apportionment of the compensation among the persons interested. On 11.4.2000, the possession of the land was taken over by the Land Acquisition Officer on Special Duty, Urban Development and Housing Department, Government of Rajasthan and was handed over to the Rajasthan Housing Board. Thereafter, the land has vested in the State Government free from all encumbrances.

It was submitted by the respondent-Board before the learned Single Judge that the Board has no other vacant land in Jodhpur, except the land acquired for the Kudi Bhagtasni Scheme. Giving the details of thousands of houses constructed by the Board in various categories and allotted to the applicants in the Scheme, it was submitted that the Kudi Bhagtasni Housing Scheme stands implemented by the respondent-Board. The Board is carrying out the Scheme in a phased manner. The mutation made in the revenue records of some persons in connivance with the revenue officials after the possession was taken over and the land was entered in the name of the Rajasthan Housing Board will not give them any rights on the strength of unauthorised transfer. The erstwhile khatedar tenants, including the petitioners, are not permitted to invoke the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India after 17 years.

Learned Single Judge observed that the petitioners wanted to improve their case on the strength of rejoinder affidavit, by submitting that whereas the Notification under Sec. 4 of the Act included the land in village Kudi, which is in the vicinity of the Jodhpur District, the newspaper publication was made in the newspapers having circulation in Pali District. The declaration under Sec. 6 of the Act published on 14.8.1992 was beyond one year of the Notification u/s. 4 published in the official Gazette on 16.6.1991 allowing the land acquisition proceedings to be lapsed under the proviso II to sub-section (1) of Section 6 of the Act. It was alleged that only paper possession was taken. The actual possession of the land is still with the petitioners and, thus, the impugned award is liable to be declared illegal and quashed. It was submitted in the rejoinder affidavit that the petitioners are not interested in the amount of compensation nor they have withdrawn the amount. The remedy under Sec. 18 was not resorted-to, as the same has very limited scope. The mere taking of the possession on paper under Section 6 of the Act is of no consequence. As per the revenue records, the petitioners continue to be in possession of the land.

Learned Single Judge observed that in the additional affidavit, the respondent Board has clarified that the public notices under Section 4(1) of the Act alongwith the details of the land mentioned therein, were issued by the Land Acquisition Officer on Special Duty, Urban Development and Housing Department, Government of Rajasthan on 17.8.1991, which was sent to the Deputy Housing Commissioner, Board and in pursuance of which the different notifications alongwith the details of the land mentioned in it, were affixed on the notice board of the offices of Municipal Council, Jodhpur, Urban Improvement Trust, Gram Panchayat, Kudi Bhagtasni, Panchayat Samiti, the District Collector, Jodhpur, Tehsildar, Jodhpur, Deputy Housing Commissioner and Resident Engineer, Division II, Rajasthan Housing Board, Jodhpur. The notices were personally served and affixtures were dispatched by the office of the Resident Engineer, Division II, Jodhpur, vide communication dated 4.9.1991 and the information in this regard was supplied to the Officer on Special Duty, Urban Improvement and Housing Development, Government of Rajasthan vide communication dated 9.9.1991. The public notice issued under Section 4(1) of the Act was also published in daily newspaper "Jalte Deep", published from Jodhpur on 5.2.1992 and in "Dainik Pratinidhi" dated 4.2.1992, the copies of which were annexed with the rejoinder affidavit.

The petitioners placed reliance on the judgment of the Hon''ble Supreme Court in Devender Kumar Tyagi and Others Vs. State of U.P. and Others, (2011) 9 JT 390 : (2011) 9 SCALE 310 : (2012) AIRSCW 1340 regarding the applicability of the second proviso to Section 6(1) of the Act for delay of one year in the Notifications issued u/ss.4(1) and 6(1) of the Act in which references were made to State of Mysore Vs. Abdul Razak Sahib, AIR 1973 SC 2361 : (1973) 3 SCC 196 : (1973) 1 SCR 856 and Kunwar Pal Singh (Dead) by L.Rs. Vs. State of U.P. and Others, AIR 2007 SC 1675 : (2007) 5 JT 1 : (2007) 5 SCALE 122 : (2007) 5 SCC 85 : (2007) 4 SCR 409 : (2007) AIRSCW 2571 .

The petitioners also referred to the decision in The Special Deputy Collector, Land Acquisition C.M.D.A. Vs. J. Sivaprakasam and Others, AIR 2011 SC 922 : (2011) 1 CTC 608 : (2010) 12 JT 577 : (2010) 12 SCALE 110 : (2011) 1 SCC 330 : (2010) 10 UJ 5462 with regard to insufficiency of the publication in newspaper, which did not have reasonably good circulation in the locality and the case of Ram Chand and Others Vs. Union of India (UOI) and Others, (1993) 5 JT 466 : (1993) 3 SCALE 906 : (1994) 1 SCC 44 : (1993) 2 SCR 558 Supp : (1994) 1 UJ 21 for the proposition that the amount of compensation was deposited with inordinate delay and it was not withdrawn observing the concluding of the land acquisition proceedings.

Learned counsel for the petitioners had also relied on Raghbir Singh Sehrawat Vs. State of Haryana and Others, AIR 2012 SC 468 : (2011) 13 SCALE 260 : (2012) 1 SCC 792 : (2012) AIRSCW 240 ; Sri Radhy Shyam (Dead) through L.Rs. and Others Vs. State of U.P. and Others, (2011) 4 JT 524 : (2011) 3 RCR(Civil) 96 : (2011) 4 SCALE 677 : (2011) 5 SCC 553 : (2011) 8 SCR 359 ; and Banda Development Authority, Banda Vs. Moti Lal Agarwal and Others, (2011) 5 JT 106 : (2011) 3 RCR(Civil) 530 : (2011) 5 SCALE 173 : (2011) 5 SCC 394 : (2011) 4 UJ 2109 : (2011) AIRSCW 2835 : (2011) 3 Supreme 473 in submitting that until the actual possession of the land is taken, it will not vest in the State Government free from all encumbrances.

Reliance was also placed by the petitioners on B. Anjanappa and Others Vs. Vyalikaval House Building Co-operative Society Limited and Others, (2013) 1 RCR(Civil) 933 : (2012) 2 SCALE 504 : (2012) 10 SCC 184 in which it was held that the housing scheme must be approved and in absence thereof the land cannot be acquired, and one Inder Singh Bhati through his L.Rs. v. State of Rajasthan in which the acquisition of the land by the State Government for U.I.T. under Section 52(1) of the Urban Improvement Trust Act, 1961 was quashed.

The respondents, before learned Single Judge, relied on the The Municipal Council, Ahmednagar and Another Vs. Shah Hyder Beig and Others, AIR 2000 SC 671 : (1999) 10 JT 336 : (2000) 1 SCALE 124 : (2000) 2 SCC 48 : (1999) 5 SCR 197 Supp : (2000) AIRSCW 197 : (2000) 1 Supreme 146 and a Division Bench decision of this court in Ganesh Lal Joshi and ors. v. the State of Rajasthan (D.B. Civil Special Appeal No. 623/2011), decided on 4.7.2011 in which the writ petitions were dismissed.

On powers of the State Government to withdraw from the acquisition under Section 48 of the Act, reliance was placed on V. Chandrasekaran and Another Vs. The Administrative Officer and Others, (2012) 9 JT 260 : (2012) 4 RCR(Civil) 588 : (2012) 9 SCALE 142 : (2012) 12 SCC 133 .

Learned Single Judge in his long and erudite judgment considering all the grounds raised before him, dismissed the writ petitions. He did not find any merit in the connected writ petitions filed by the subsequent purchasers of the land, as the sale deeds executed after the acquisition were void against the State, inasmuch as it did not confer any right, title or interest on the purchaser vide U.P. Jal Nigam, Lucknow through its Chairman and another Vs. M/s. Kalra Properties (P) Ltd. Lucknow and others, AIR 1996 SC 1170 : (1996) 2 CTC 60 : (1996) 1 JT 354 : (1996) 1 SCALE 389 : (1996) 3 SCC 124 : (1996) 1 SCR 683 : (1996) 1 UJ 549 and V. Chandrasekaran and Another Vs. The Administrative Officer and Others, (2012) 9 JT 260 : (2012) 4 RCR(Civil) 588 : (2012) 9 SCALE 142 : (2012) 12 SCC 133 . In the Special Appeal No. 1226/2013, the writ petition was filed by the original land holders and, thus, this question does not arise for consideration.

Learned Single Judge relied on Banda Development Authority''s case (supra) in which the delay in challenging the proceedings, though no limitation has been prescribed, was found to defeat the rights of the petitioners. It was held by the Supreme Court that entertaining petition after long lapse of time may adversely affect the settled/crystallized rights of the parties. If the writ petition is filed beyond the period of limitation prescribed for filing a civil suit for similar cause, the High Court will treat the delay unreasonable and decline to entertain the grievance of the petitioner on merits. The delay of about 17 years in filing the writ petition was found by the learned Single Judge to defeat the rights of the petitioner. He found that the extra ordinary jurisdiction of the High Court under Article 226 of the Constitution of India cannot be invoked after such a long period of time. So far as the delay in taking possession of the land after issuance of the notification is concerned, learned Single Judge once again placed reliance on Banda Development Authority''s case (supra) in which it laid down certain principles as follows:

"(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 the presence of independent witnesses and get their signatures on the panchnama. Of course, refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken.

(iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures on such document.

(v) If beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17 (30A) and substantial portion of the acquired land has been utilised in furtherance of the particular public purpose, then the court may reasonably presume that possession of the acquired land has been taken."

Learned Single Judge thereafter relying on the documents including the memo of taking over the possession dated 11.4.2000 found that petitioner Fusa Ram tried to encroach upon the land after the possession was taken and to interfere with the possession of the respondent-Board on which the Board was compelled to file a suit for permanent injunction before the revenue Court of competent jurisdiction. In view of the overwhelming evidence on record regarding taking over the possession after declaration of award of compensation and the development of the land by the Board after which thousands of houses have been constructed in the Scheme, the bald assertion of the petitioners that they continued to be in possession of the property, was found to be misconceived. Learned Single Judge observed as follows:

"Moreover, in the instant cases, chunk of the lands was acquired by the State Government for the purpose of development of the housing colony by the Board and the part of land has already been put to use for the purpose of developing the colony, therefore, on the facts and in the circumstances of the case, the stand taken by the petitioners that the actual possession of the land has not been taken over by the respondent-Board appears to be incorrect."

On the prayer for de-acquisition of the land under Section 48 of the Act on the ground that in similar cases, the land has been de-acquired in Prathviraj Nagar, Jaipur and `My Haveli Residential Yojana'', it was found that no details were furnished as to in what circumstances, the land was regularized or the land was de-acquired and, thus, the references were not found sufficient for placing reliance on the argument. It was held that the State Government may, at its discretion, withdraw from acquisition of any land acquired of which possession has not been taken at any stage even after passing of the award but once the possession was taken, the State Government is denuded of its powers to withdraw from the acquisition. The power conferred for de-acquiring the land in any case has to be exercised by the State Government in an objective manner and for valid reasons. This Court cannot issue any direction to the State Government to de-acquire any land, even if possession has not been taken in terms of Section 16 or 17(1) of the Act. The reliance for the proposition was placed on Takhat Singh Kothari v. State of Rajasthan and ors., D.B. Special Appeal(W) No. 351/2008, decided on 9.2.2009.

Regarding the final prayer for allotment of the developed land in lieu of compensation to the extent permissible in terms of Government Circular dated 16.7.2007, the learned Single Judge left it open to the petitioners to submit their claim before the government, if they are at all entitled for allotment of the land in terms of the policy of the State Government.

Learned counsel for the appellants has not been able to substantiate the challenge to the reasons on any of the points, which are sought to be reiterated in the appeal. Once again, an attempt was made to submit that the possession of the land was not taken and is still with the petitioners. He has placed reliance upon the revenue entries as well as the necessity of the Housing Board to file suit for injunction in the year 2009.

We do not find any substance in the challenge, inasmuch as learned Single Judge has recorded the findings of fact on the basis of documents placed before him that the possession of the land was taken on 11.4.2000 by the Land Acquisition Officer on Special Duty, Urban Development and Housing Department, Government of Rajasthan and was handed over to the Rajasthan Housing Board after which the land has vested, free from all encumbrances, in the State. The land thereafter has been put to use by making allotment in phases after which thousands of houses have been constructed by the Board of various categories and allotted to the applicants. The finding recorded by the learned Single Judge that Kudi Bhagtasni Housing Scheme already stands implemented by the respondent-Board, has not been successfully challenged on the basis of any material either in the writ petitions or in the Special Appeals.

The argument that there was delay of more than one year in issuing the notifications u/s. 4(1) and 6(1) of the Act, was repelled by learned Single Judge on the basis of material that a notification under Sec. 4 was published in the official Gazette on 13.6.1991 and thereafter the publication in the two local newspapers was made on 4.2.1992 and 5.2.1992, after which, the declaration was issued under Sec. 6(1) of the Act on 12.8.1992 and the same was published in the Rajasthan Gazette on 14.8.1992 within a period of one year.

In reply to the grounds of Special Appeal, the Rajasthan Housing Board has referred to the details of constructions raised in Khasra No. 276 of village Kudi and the necessary administrative and financial sanctions for construction of the roads in the Kudi Bhagtasni Scheme Phase II Colony. It is stated that construction of 16 HIG houses on the land comprised in Khasra No. 276, village Kudi, was started on the work order given on 5.11.2014. The land is in possession of the Rajasthan Housing Board since 11.4.2000 of which possession was taken over by the Land Acquisition Officer on Special Duty, Urban Development and Housing Department, Government of Rajasthan, as per the provisions of Section 16(1) of the Act and on which the residential colony of the Housing Board has been developed and the houses occupied by the allottees.

In the additional affidavit filed by the appellants in the Special Appeal, it is stated in para 3 that the acquisition has elapsed under Section 24 (2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, as neither the physical possession of the land was taken over by the respondents till the enforcement of the new Act, nor the compensation was paid to the actual beneficiaries and for which reliance has been placed on Pune Municipal Corporation and Another Vs. Harakchand Misirimal Solanki and Others, AIR 2014 SC 982 : (2014) AIRSCW 787 : (2014) 3 JT 283 : (2014) 1 RCR(Civil) 880 : (2014) 1 SCALE 618 : (2014) 3 SCC 183 .

On the facts of the case and the findings recorded by the learned Single Judge, the submission on the applicability of Section 24(2) of the Act of 2013 is entirely misconceived, inasmuch as the possession of the land was taken by the Land Acquisition Officer on Special Duty, Urban Development and Housing Department, Government of Rajasthan and handed over the Rajasthan Housing Board through Resident Engineer on 11.4.2000, and that the land has since been entered in the revenue record in the name of the Rajasthan Housing Board. The compensation under the award dated 6.8.1994 was deposited by cheque in the Civil Court on 11.4.2007. In the circumstances, the provisions of Section 24(2) of the Act of 2013 will not apply to save the land from acquisition for deeming lapse of acquisition.

The writ petition was filed with a delay of 17 years after the issuance of the notification u/s. 6 of the Act and after 11 years of taking over the possession on 11.4.2000. The writ petition was, thus, grossly barred by unexplained laches for which no argument was raised to challenge the findings.

We also do not find any error in the judgment of the learned Single Judge by which he has rejected the argument of the applicability of Section 48 of the Act after the possession has been taken and a housing Scheme has been developed. The land is no longer vacant and that valuable rights of the allottees under the housing Scheme have come into existence for making any consideration for de-acquisition of the land. So far as the allotment of the developed land in lieu of compensation in accordance with the Government Circular dated 16.7.2007, the liberty was rightly given by learned Single Judge to the petitioners to submit their claim before the State Government, if they are at all entitled for the allotment.

We do not find any good ground to interfere with the judgment of the learned Single Judge.

The Special Appeal is dismissed.