Jharkhand State Housing Board vs The State of Jharkhand and Others

S. Chandrashekhar, J—Aggrieved by order dated 16.11.2014 passed by Deputy Commissioner, Saraikela-Kharsawan in Misc. (P) No. 33 of 2004-05, the present writ petition has been filed.

The brief facts of the case are that, notification under Section 4 and declaration under Section 6 of the Land Acquisition Act, 1894 were published for acquiring 112.24 acres land in Mouza-Dindli, Thana No. 128 at Adityapur. The State Government invoked emergency provisions under the Act and notice was served on the parties including, one Rangilal Mahto. On 22.05.1965, possession was taken by the Special Land Acquisition Officer, Adityapur Industrial Area Development Authority (AIADA) and the same was delivered to the Executive Engineer, Housing Department, Jamshedpur. The writ petition being, MJC No. 1073 of 1964 was filed challenging validity of notification issued under Sections 4 and 6 of the Land Acquisition Act and the same was dismissed on 14.05.1965. Challenging order dated 14.05.1965, Special Leave Petitions were filed, which were converted in Civil Appeal No. 2286-2287 of 1970. The civil appeals were disposed of vide order dated 25.02.1986 with a direction to make award and pay compensation within six months. Accordingly, an award was prepared on 30.10.1986. Thereafter, CWJC No. 1182 of 1986 (R) was filed challenging the award dated 30.10.1986. The writ petition was allowed vide order dated 21.05.1987 holding that since the award was not published by 24.09.1986, it lapsed. Aggrieved, the Bihar State Housing Board filed Special Leave Petition (Civil) Nos. 10341 of 1987 and 10015 of 1987 and the same were converted into Civil Appeal Nos. 1005 of 1988 and 1006 of 1988. The aforesaid civil appeals were disposed of vide order dated 21.03.1988 holding that compensation for the acquisitions should be paid as if the acquisitions were made on 01.03.1988. A direction was issued to the Land Acquisition Collector to determine the amount of compensation within a period of six months and after considering objections, compensation be paid within three months. Thereafter, correction in Register-II was made and name of Bihar State Housing Board was entered. The respondent No. 6 filed CWJC No. 2013 of 1997 (R) for restraining the Housing Board from taking possession of land in Khata No. 210. The writ petition was dismissed on 19.08.1998. The respondent No. 6 was directed vide order dated 23.11.1998 to hand-over possession to the Housing Board however, the respondent No. 6 filed CWJC No. 3685 of 1998 (R) alleging that compensation in terms of direction of the Hon''ble Supreme Court was not paid. The writ petition was disposed of vide order dated 05.02.1999 directing the respondent No. 6 to appear before the Deputy Commissioner. A further direction was issued for payment of compensation to respondent No. 6, if not already paid. The respondent No. 6 filed Misc. (P) No. 8 of 1998-99 before the Deputy Commissioner, which was disposed of vide order dated 24.03.2000 restraining the Special Land Acquisition Officer, AIADA from dispossessing the respondent No. 6 till, payment of compensation. Another writ petition being, CWJC No. 1852 of 2001 was filed by respondent No. 6 complaining that neither compensation has been paid nor land in Khata No. 210 has been released. The writ petition was disposed of vide order dated 04.05.2001 with liberty to the respondent No. 6 to approach the authority for payment of compensation however, a direction was issued not to dispossess respondent No. 6 till, compensation is paid to him. The Special Land Acquisition Officer issued notice dated 30.01.2004 to the respondent No. 6 for receiving compensation of Rs. 95,672.86/-. The said notice was received by respondent No. 6 on 30.01.2004 however, he did not appear to receive the compensation. It is stated that the respondent No. 6 filed an application before the Chief Secretary, Government of Jharkhand, who directed the Deputy Commissioner to submit a report. A report was submitted stating that the respondent No. 6 has not received compensation offered to him and accordingly, no further direction was issued. It appears that the respondent No. 6 again made a representation on 19.04.2004 to the Chief Secretary claiming that compensation should be paid to him at the present market rate. A report was again called from the Deputy Commissioner. The respondent No. 6 again approached the Deputy Commissioner by filing application dated 28.06.2004 for payment of compensation or in the alternative to issue direction to release the land. The said application has been allowed and vide order dated 16.11.2004, a direction has been issued to release the land in favour of respondent No. 6.

Mr. Sachin Kumar, the learned counsel for the petitioner submits that after the award was affirmed by the Hon''ble Supreme Court in Civil Appeal Nos. 1005-06 of 1988, the Deputy Commissioner has no jurisdiction to order release of land in favour of respondent No. 6. It is submitted that inspite of specific direction of the High Court and notices issued to the respondent No. 6 for receiving compensation, he did not turn up to receive amount of compensation and thus, it is not open to the respondent No. 6 to contend that compensation has not been paid to him. Per contra, Mr. Md. Mokhtar Khan, the learned counsel for the respondent No. 6 raises a preliminary objection as to the maintainability of the writ petition and submits that the petitioner earlier moved this Court in W.P.(C) No. 1342 of 2005 for the same and similar relief and the writ petition was withdrawn by the petitioner and therefore, the present writ petition is barred by res-judicata. It is further submitted that inspite of specific direction of the Hon''ble Supreme Court in Civil Appeal Nos. 1005-06 of 1988, the compensation at the market rate was not paid to the respondent No. 6 and the respondent No. 6 is still continuing in possession therefore, the Deputy Commissioner has rightly ordered release of land in favour of the respondent No. 6.

I have carefully considered the rival contentions raised on behalf of the parties and perused the documents on record.

In so far as, the contention raised on behalf of the respondent No. 6 that the present writ petition is barred by res-judicata is concerned, I find that order dated 03.10.2007 in W.P.(C) No. 1342 of 2005 reads as under:

"In view of the said stand taken by the parties, no order is required to be passed for the present and accordingly, this writ petition is disposed of."

In the proceeding of W.P.(C) No. 1342 of 2005, it was pointed out by the counsel for Ravindra Nath Mahto (respondent No. 6 herein) that the respondent No. 6 has made offer to the Managing Director, Jharkhand State Housing Board subject to the condition that the Housing Board withdraws the writ petition. On the statement made on behalf of the Housing Board that the respondent''s proposal would be sent to the Board of Directors, this Court disposed of the writ petition. It is thus, apparent that this Court had no occasion to examine the merits of the matter. Order dated 03.10.2007 nowhere refers to question of jurisdiction or impropriety committed by the Deputy Commissioner in ordering release of land in favour of respondent No. 6. In " Sheodan Singh Vs. Smt. Daryao Kunwar, AIR 1966 SC 1332 : (1966) 3 SCR 300 , the Hon''ble Supreme Court has held as under:

Re. (iv): "this brings us to the main point that has been urged in these appeals, namely, that the High Court had not heard and finally decided the appeals arising out of suits Nos. 77 and 91. One of the appeals was dismissed on the ground that it was filed beyond the period of limitation while the other appeal was dismissed on the ground that the appellant therein had not taken steps to print the records. It is therefore urged that the two appeals arising out of suits Nos. 77 and 91 had not been heard and finally decided by the High Court, and so the condition that the former suit must have been heard and finally decided was not satisfied in the present case. Reliance in this connection is placed on the well settled principle that in order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on the merits. Where, for example, the former suit was dismissed by the trial Court for want of jurisdiction, or for default of plaintiff''s appearance, or on the ground of non-joinder of parties or misjoinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letter of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation or for failure to pay additional court fee on a plaint which was undervalued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal (if any) the decision not being on the merits would not be res-judicata in a subsequent suit."

In so far as, the contention of the petitioner that the award was affirmed by the Hon''ble Supreme Court is concerned, I find that vide order dated 21.03.1988, in Civil Appeal Nos. 1005-06 of 1988, the Hon''ble Supreme Court upheld the acquisition subject to the conditions namely, (i) compensation would be paid as if acquisitions were made as on 01.03.1988, (ii) amount of compensation to be determined within six months from the date of order and, (iii) compensation to be paid within three months, thereafter. It is a matter of record that the respondent No. 6 was called for receiving compensation. Copies of letters dated 10.12.1986 and 12.12.2001 have been brought on record. Land in question is comprised in Khata No. 210 in village Dindli, P.S.-Adityapur, Jamshedpur and the total area is 7.06 Acres. It appears that when the Housing Board initiated proceeding for taking possession of the land, the respondent No. 6 approached High Court in C.W.J.C. No. 2013 of 1997(R). In the said proceeding a statement was made that the Government has no intention to release the land in question. Considering the same, the writ petition was disposed of observing that, if that is so, no case is made out for any direction however, it was left open to the Government to take decision, independently. After the disposal of the writ petition notice dated 23.11.1998 was given to the respondent No. 6 for handing over possession to the Housing Board. The respondent No. 6 approached the High Court in C.W.J.C. No. 3685 of 1996(R) challenging the said notice. The writ petition was disposed of with a direction that the authorities shall not dispossess respondent No. 6 till, the compensation amount is paid. However, it was made clear that if compensation is available for payment to the respondent No. 6 and he refuses to accept the same, authorities would be entitled to dispossess him. Misc. (P) No. 8 of 1998-99 was disposed of on 24.03.2000 with a similar direction for paying compensation. In none of the proceedings a direction was issued for release of land to the respondent No. 6, if compensation was not received by him. The petitioner has brought on record letter dated 31.03.2004 written by the Secretary to the Chief Secretary, Government of Jharkhand to the respondent No. 6 intimating him to receive compensation of Rs. 95,672.86/- from the office of the Land Acquisition Officer, AIADA, Jamshedpur. The petitioner has also brought on record copies of notice dated 12.12.2001 and 30.01.2004 to indicate that notices were issued to respondent No. 6 for receiving compensation. Considering the above facts, I am of the definite opinion that the Deputy Commissioner has no jurisdiction to order release of land in favour of respondent No. 6. The contention raised on behalf of the respondent No. 6 that possession of the land in Khata No. 210 has not been taken by the Housing Board and therefore, the Deputy Commissioner has rightly ordered release of land in his favour, is liable to be rejected. The respondent No. 6 has retained possession of the land acquired in L.A. Case No. 09 of 1964-65 by virtue of orders passed by the High Court in different writ proceedings. In the earlier proceeding, the State Government made its intention not to release the land, clear to the Court and subsequently, the State has not changed its decision not to release the land from acquisition. Liberty given to the respondent No. 6 by the Chief Secretary, Government of Jharkhand to approach the Deputy Commissioner, would not confer jurisdiction upon the Deputy Commissioner to order release of land in favour of respondent No. 6. The impugned order dated 16.11.2014 suffers from serious infirmity in law and accordingly, it is liable to be quashed.

Considering the above facts, impugned order dated 16.11.2014 is quashed. The writ petition stands allowed. I.A. Nos. 1462 of 2015, 3712 of 2012, 4959 of 2013 and 5541 of 2013 also stand disposed of.