Kishore Bujhade vs Pandari and another

As common question of law and facts are involved in writ appeals, therefore, both writ appeals are heard analogously and are being disposed of by this common order.

In Writ Appeal No.261/2016, respondents No.1 and 2 are the owners of total ad-measuring 0.808 hectares of land, bearing Survey No.295/4, 221/3/2 and 223/2/4 respectively situated in Village Nipania, Tahsil & District Indore.

In Writ Appeal No.262/2016, respondents No.1 and 2 are the owners of total ad-measuring 1.066 hectares of land, bearing Survey No.295/3, 295/7, 295/1 and 296/6 respectively situated in Village Nipania, Tahsil & District Indore.

Facts of the case are that Board of the appellant - Indore Development Authority vide Resolution No.187 dated 28.08.2004 decided to propose the intention of framing of a scheme on the lands situated in village Bicholi Hapsi, Kanadia, including the land of writ petitioners (respondents No.1 and 2) in village Nipania, Tahsil & District Indore, in accordance with Section 50 (1) of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 (herein after referred to as the Adhiniyam of 1973) for construction and development of a residential scheme, as proposed in Master Plan.

The said scheme was named as Scheme No.164. A gazette notification was published under Section 50 (2) of the Adhiniyam of 1973 on 03.09.2004 of the declared scheme. Thereafter, a draft scheme was prepared and as per the provisions of Section 50 (3) of the Adhiniyam of 1973, a notice was published on 26.05.2006 to inform the concerned land owners and the public at large and objections were invited by the appellant from such persons. The landowners challenged the said scheme by filing a writ petition and Scheme No.164 was quashed by the learned Writ Court and thereafter the same was dropped by the appellant in the light of the order passed by the High Court.

Thereafter, fresh scheme was declared by the appellant on the said lands and the same was named as Scheme No.168. This scheme also had the same fate and it was quashed being lapsed by the High Court by passing order in the writ petitions filed by the affected landowners.

Subsequently, an intention of framing a new scheme named as Scheme No.175 was proposed by the appellant on the said lands in accordance with provisions of Section 50 (1) of the Adhiniyam of 1973. A gazette notification was published under Section 50 (2) of the Adhiniyam of 1973 on 23.09.2011. After preparation of the Draft Scheme, a notice was published to inform the concerned landowners and the public at large and objections were invited by the appellant from such persons. The appellant decided the objections and thereafter passed an order under Section 50 (4) of the Adhiniyam of 1973 and final Scheme was published by publication of notice dated 12.10.2012 in the gazette notification under Section 50 (7) of the Adhiniyam of 1973.

Acquisition proceedings, as per the provisions of the Adhiniyam of 1973 and the Land Acquisition Act, 1894 were also initiated by the Appellant Authority for which a letter dated 09.10.2015 (Annexure R/2-4) was sent by the appellant to the Collector, Indore for initiating the process of acquiring lands including in Scheme No.175 under Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 (herein after referred to as the Act of 2013).

The Land Acquisition Officer, District Indore vide letter dated 19.10.2016 directed the appellant - Indore Development Authority to deposit 80% of the proposed amount of compensation along with proposal of land acquisition, so that further action may be taken. Letter dated 19.10.2016 reads, as under: - "VERNACULAR MATTER OMITTED"

Till today, no amount has been deposited nor any compliance of letter dated 19.10.2016 was made by the appellant - Indore Development Authority. In the meanwhile, objections of respondents No.1 and 2 were rejected. They preferred a revision under Section 51 of the Adhiniyam of 1973 before the Commissioner, Bhopal. Respondents No.1 and 2 (writ petitioners) also filed Writ Petition No.6318/2015 and Writ Petition No.7075/2015 for issuance of appropriate writ order or direction for quashment of Scheme No.175 so far as it relates to them. They have also prayed before the learned Writ Court for alternative relief, that Indore Development Authority be directed to acquire the land of the petitioners (respondents No.1 and 2), which has been included in Scheme No.175 and to pay compensation as per the Act of 2013.

The contention of respondents No.1 and 2 (writ petitioners) before the learned Writ Court was that for the first time their land was included in Scheme No.164 by issuing a notification dated 03.04.2004 and the said scheme continued for a period of four years. Thereafter, the scheme was lapsed. Another Scheme No.168 was issued by the Indore Development Authority on 08.03.2008. The said scheme was dropped after a period of three years. Third scheme was introduced i.e. Scheme No.175 on 10.09.2011 and till today, land of respondents No.1 and 2 (writ petitioners) has not been acquired; neither any compensation has been paid to them nor Indore Development Authority is releasing the land of respondents No.1 and 2, and therefore, a prayer has been made for quashment of Scheme No.175 or alternatively, for a direction to the appellant - Indore Development Authority to take possession of the land of respondents No.1 and 2, as they are ready to give their entire land to the appellant.

A detailed reply has been filed by the State of Madhya Pradesh in writ petition stating therein that they have not disputed notification of Schemes No.164, 168 and 175. However, they have stated that they have forwarded the matter to the Land Acquisition Officer for acquiring the land in question vide letter dated 09.10.2015.

Learned Writ Court considering the provisions of Section 56 of the Adhiniyam of 1973 disposed of the writ petition by directing that the offer made by respondents No.1 and 2 (writ petitioners) in the open Court should be treated as offer under Section 56 of the Adhiniyam of 1973. In case, Indore Development Authority wants to acquire the land, it shall pay compensation, keeping in view the Act of 2013 within a period of six months from date of receipt of certified copy of the order. It was also made clear that in case, the land is not acquired in spite of the willingness on the part of respondents No.1 and 2 (writ petitioners) within six months and no compensation is paid, keeping in view the Act of 2013, the land shall revert back to the landowners and the appellant - Indore Development Authority shall issue "No Objection Certificate" in regard to land in question within thirty days thereafter.

Relevant part of order dated 29.03.2016 passed in Writ Petition No.6318/2015 and Writ Petition No.7075/2015 reads, as under: - "This Court has carefully gone through the aforesaid judgment. In the present case the facts are slightly distinguishable as the petitioners have stated in open Court that they are ready to give their land by agreement, keeping in view Section 56 of the M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 which reads as under :-

"56 A.-cquisition of land for Town and Country Development Authority.- The Town and Country Development Authority may at any time after the date of publication of the final town development scheme under section 50 but not later than three years therefrom, proceed to acquire by agreement the land required for the implementation of the scheme and, on its failure so to acquire, the State Government may, at the request of the Town and Country Development Authority, proceed to acquire such land under the provisions of the Land Acquisition Act, 1894 (No.1 of 1894) and on the payment of compensation awarded under that Act and any other charges incurred by the State Government in connection with the acquisition, the land shall vest in the Town and Country Development Authority subject to such terms and conditions as may be prescribed."??

It has not been disputed that while acquiring the land by agreement or while acquiring the land by taking into account Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013, same amount of compensation has to be paid to the land owners as they are ready to give their land and therefore, they are certainly entitled for compensation, keeping in view Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013. Resultantly, present petition is disposed of with following directions :-

The offer made by the petitioner in the open Court should be treated as offer under Section 56 of the M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973.

In case, Indore Development Authority wants to acquire the land, it shall pay compensation keeping in view the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 within a period of 6 months from date of receipt of certified copy of this order.

It is made clear that, in case, the land is not acquired in spite of the willingness on the part of the petitioners within six months and no compensation is paid keeping in view the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013, the land shall revert back to the land owners and IDA shall issue "no objection certificate"? in? regard to land in question within 30 days thereafter. With the aforesaid, the petition stands disposed of."

It is this order, which has been impugned in both the writ appeals by the Indore Development Authority.

Shri Sunil Jain, learned Senior Counsel for the appellant - Indore Development Authority has submitted that revision of respondents No.1 and 2 under Section 51 of the Adhiniyam of 1973 is pending before the State Government and due to the aforesaid reason, the land in question could not be acquired.

He further submitted that the direction of the learned Writ Court was to pay compensation and to acquire land for Scheme No.175 within a period of six months as per the Act of 2013 and in absence to do so, in the aforesaid case, the land shall revert back to the landowners and the appellant - IDA has to issue No Objection Certificate in this regard thereafter, is contrary to the provisions of Section 25 of the Act of 2013. He also submitted that Section 25 of the Act of 2013 prescribes a time limit of twelve months from the date of declaration under Section 19 of the Act of 2013 for passing of the award by the Collector and if award is not passed within a period of twelve months from the date of declaration, the appropriate Government has to extend it for a further period of two months. It is also submitted that the learned Writ Court, without considering the fact that possession of the land acquisition cannot be completed in six months, the whole process takes about 2-3 years from the date of final publication of the scheme and as per the prevailing practice of the appellant - IDA, no compensation in cash is paid to the landowners for the land acquired under Section 56 of the Act or as per mutual consent. The landowners are compensated by providing alternative developed land in the same scheme or in any other scheme for the land acquired by the appellant. Compensation in cash is paid by the appellant only to those landowners whose lands are acquired by the appellant compulsorily not by way of mutual consent.

He has also submitted that Sections 11 and 15 of the Act of 2013 prescribe a process to be completed before the statutory time limit of Section 25 of the Act of 2013 commences and thus, no mandamus can be issued contrary to the statutory provisions. He also pointed out that respondents No.1 and 2 filed revisions under Section 51 of the Adhiniyam of 1973 against order of rejection of objections with a prayer for quashment of Scheme No.175 and the same was raised by the landowners in the writ petitions before the learned Writ Court. In the absence of any final order from the Commissioner on the revisions preferred by respondents No.1 and 2, the said writ petition was premature and the same could not have been disposed of with a direction to the Revisional Authority for an early disposal of the revision petition and prayed that the impugned order be set aside and writ appeal filed by the appellant - Indore Development Authority be allowed.

Per contra, Shri V.K. Jain, learned counsel for respondents No.1 and 2 has submitted that the appellant - IDA decided to acquire the land of respondents No.1 and 2 for construction and development of residential scheme, as proposed in the Master Plan somewhere in 2003-04 in Scheme No.16 and Scheme No.168. Both the above mentioned schemes were quashed / lapsed in pursuance to the order passed in writ petition. Again on 23.09.2011 an intention of framing a new scheme named as Scheme No.175 was proposed by the appellant - IDA, in accordance with Section 50 (1) of the Adhiniyam of 1973 for construction and development of residential scheme. This was challenged by filing revision under Section 51 of the Adhiniyam of 1973. No stay of any kind was granted by any authority nor there was any hurdle in acquiring the land after complying with the provisions of Sections 11, 15, 24 and 25 of the Act of 2013 and Section 56 of the Adhiniyam of 1973. Looking to the facts and circumstances of the case, that the land of respondents No.1 and 2 is withheld for a period of more than 12-13 years and till today, no compensation has been paid to them, direction issued by the learned Writ Court is just and proper and prays for dismissal of the writ appeal.

Now the first thing that strikes one on perusing the course of the proceedings in the case is extremely unsatisfactory and impractical procedure followed by the appellant. The statutes i.e. Adhiniyam of 1973 and Land Acquisition Act, 1894 / Act of 2013 envisages that the land should be acquired and compensation should be paid to the landowners within a prescribed period. But the course of events in the case show that this time limited is observed more in breach than in observance. This is an extremely cumbrous and ineffective procedure in which several years passed on the proposal of acquisition of land of respondents No.1 and 2, but the situation stands still. Thus, for e. g., the appellant - IDA prepared a draft scheme somewhere in 2003-04 and the same is yet to know what the fate of its land would be. Twice the scheme was either lapsed or quashed by this Court and the proposal for acquisition of land for Scheme No.175 is yet to take a final shape and is pending since last six years. The land of both the landowners are on hold as they are neither acquiring the land nor releasing the land by issuing "No Objection Certificate" in favour of respondents No.1 and 2 from last 12-13 years.

From the aforesaid, we are of the view that respondents No.1 and 2 cannot be deprived from utilizing of the property in question for an indefinite period. It is also not in dispute that provisions of the Adhiniyam of 1973, on which basis of which direction has been made is directory in nature. There is no deeming provision that if the land development authority fails to acquire land within the specified period, as provided in the Adhiniyam of 1973, then the land would be reverted back to the landowners and in that circumstances, the Indore Development Authority is bound to issue "No Objection Certificate" to respondents No.1 and 2, so that the landowners can use their land for any other purpose, as per Master Plan. The order of the learned Writ Court was passed on 29.03.2006, but till today, no action has been taken by the appellant - Indore Development Authority to comply with the order passed in the writ petition, and therefore, we are of the view that the learned Writ Court has rightly directed the appellant that the offer made by respondents No.1 and 2 in open Court should be treated as offer under Section 56 of the Adhiniyam of 1973 and shall pay compensation, keeping in view the Act of 2013 within the specified period. In case the land is not acquired and no compensation is paid, then appropriate action shall be taken by the appellant so that the land shall revert back to the landowners, as directed by the learned Writ Court.

With the aforesaid, Writ Appeal No.261/2016 and Writ Appeal No.262/2016 are disposed of, with no order as to costs.

The original order be retained in the record of Writ Appeal No.261/2016 and a copy thereof be placed in the record of Writ Appeal No.262/2016.