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Judgment
Ramesh Ranganathan, CJ
Heard Mr. Tapan Singh, learned counsel for the appellant-writ petitioner and Mrs. Prabha Naithani, learned Brief Holder for the State of Uttarakhand.
The application, seeking condonation of delay in preferring this Appeal, is not opposed by Mrs. Prabha Naithani, learned Brief Holder for the State of Uttarakhand, and the delay is, therefore, condoned. Delay Condonation Application No.13177 of 2019 stands disposed of.
The appellant herein filed WPMS No.2808 of 2015 seeking a writ of mandamus commanding/ directing the respondents not to deprive the petitioner from its property, known as "Kapoorthala House" situated at Har-ki-Pauri, Haridwar, without due process of law or without acquisition of the demised property in accordance with law.
The petitioner claims to have been granted a lease by the State of Punjab of a certain extent of land, known as 'Kapoorthala House', at Har-ki-Pauri. When the State Government had earlier issued a notification under Section 4(1) of the Land Acquisition Act, 1894, the petitioner had invoked the jurisdiction of this Court questioning initiation of land acquisition proceedings by the respondents. A batch of writ petitions came to be filed by several others whose lands were also acquired, and they were allowed by the order of this Court dated 22.05.2014; and the impugned notification issued under Section 4(1) of the Land Acquisition Act on 08.12.2008, and the Section 6 declaration issued on 02.02.2009 were quashed. The respondents were granted liberty to initiate acquisition proceedings afresh, if need be, in accordance with the provision of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as the "2013 Act"). On the ground that the petitioner was similarly situated, WPMS No.748 of 2009 filed by them was also disposed of by order dated 02.06.2015 in the light of the earlier judgment dated 22.05.2014; and the notification issued under Section 4(1) on 08.12.2008, and the Section 6 declaration dated 02.02.2009, respectively were both set aside, granting the respondents the very same liberty of initiating proceedings afresh under the 2013 Act.
Contending that they were again forcibly sought to be dispossessed by the respondents-State Government, without initiating proceedings under the 2013 Act, the petitioner again invoked the jurisdiction of this Court. In the counter affidavit filed by them in the writ petition, the Joint Secretary, Government of Uttarakhand stated that the Ghat situated in Har-ki- Pauri was very narrow; considering the difficulty faced by a large number of devotees/pilgrims taking holy dip there, and in the public interest of safe entry and exit from the Kangra Ghat, expansion of the Ghat was compulsorily required; in order to provide safe entrance and exit for the devotees/pilgrims in the Ghat, the State Government had sanctioned a proposal, for expansion of the Ghat, by letter dated 03.11.2015. An extent of 7.60 meters width of land provided for the Kangra Ghat was being acquired from the land/building in question; as such, from the total area of 1518.21 square meter of Kapoorthala, merely 262.62 square meter land was proposed to be acquired; in compliance with the earlier order passed by this Court, following the provisions of Section 30 and 31 of the 2013 Act providing for compensation, and with the mutual consent of the affected people, the property was being acquired; the petitioner, himself, had admitted that the owner of Kapoorthala House was the Government of Punjab; the claim of the petitioner, over the property in question, was improper in as much as neither were they the actual owners of the property nor could they make any claim thereupon; considering the necessity of expansion of the Kangra Ghat in the public interest, acquisition of the property, falling within the Kangra campus, was necessary; and the said work was required to be executed in a time bound manner for arrangement of the 2016 Ardh Kumbh, which was proposed to be completed by December 2015.
In the order under appeal, the learned Single Judge observed that the there was nothing on record to show that the State of Punjab, the actual owner of the property, was aggrieved by any act of interference, or taking over of possession; if the petitioner's right as a lessee was being infringed, to the contravention of the provisions contained in the lease said to have been executed in his favour, his right was to approach the competent Civil Court after issuing a notice under Section 98 of the 2013 Act; the contention that the petitioner's right to property cannot be deprived in view of Article 300-A of the Constitution of India did not merit acceptance; if the petitioner's possession was being interfered with, then the 2013 Act itself provided a forum to the petitioner to protect his interest by filing a Suit, after following the procedure under Section 98, after giving 30 days prior notice to the opposite party; a writ petition would not be the remedy for the petitioner since the actual owner of the property, who admittedly had leased the property in favour of the petitioner, and had not approached this Court to be protected against the act of wrongful interference in the property by the respondents; it was the lessee who had come to the Court complaining of his right having been infringed in contravention of the terms of the lease; his recourse was to file a suit, as it involved an interpretation of the terms of the lease, the determination of title, and the determination of the right to continue to occupy the property, which could only be done by a Court before which evidence can be adduced, and the evidence appreciated, and not by the writ court.
With respect to the petitioner's claim of violation of Article 300-A of the Constitution, the learned Single Judge observed that the 2013 Act was required to be read with Section 98 of the said Act. The writ petition was disposed of granting the petitioner liberty to approach the Civil Court, after giving prior notice to the respondents in case he apprehended that any act of forceful interference was likely to be made by the respondents in contravention of the provisions of the 2013 Act. Aggrieved thereby, the present appeal.
Mr. Tapan Singh, learned counsel for the appellant, would contend that acquisition proceedings have not been initiated under the 2013 Act so far; a preliminary notification under Section 11 (1) of the 2013 Act, for acquisition of the subject property, has not been issued till date; the requirement of giving a notice under Section 98 of the 2013 Act would apply only for grievances which may arise under the 2013 Act; the said provisions have no application, since the respondents have not initiated acquisition proceedings under the 2013 Act; the petitioner's constitutional right, under Article 300-A of the Constitution of India, has been violated, since the respondents are seeking to deprive him of his leasehold rights without following the procedure prescribed under the 2013 Act; and the learned Single Judge had erred in directing the petitioner to avail the remedy of a Civil Suit, that too after issuing a notice under Section 98 of the said Act.
On the other hand Ms. Prabha Naithani, learned Brief Holder for the State of Uttarakhand, would submit that the subject land, admittedly, belongs to the State of Punjab, and not to the petitioner; any right which the petitioner's claims, of his leasehold rights having been violated, can only be examined in terms of the lease deed; the question as to what rights of the petitioner, as a lessee, has been violated can only be examined by the competent Civil Court on the basis of the evidence adduced before it; if any person is aggrieved by the action of the respondents in seeking to take possession of a part of the subject land, it can only be the State of Punjab, and not the petitioner; and the learned Single Judge had, rightly, refused to entertain the writ petition and was justified in relegating the petitioner to avail the remedy of a Civil Suit.
It is the admitted case of the respondents, as is evident from a bare reading of their counter-affidavit, that they required an extent of 262.62 square meters of land, belonging to Kapoorthula House, for widening the Kangra Ghat by about 7.6 meters in width. The counter affidavit does not State whether the State Government had issued a notification, for acquisition of the subject land, in accordance with Section 11(1) of the 2013 Act. The counter affidavit merely refers to Sections 30 and 31 of the 2013 Act which are the provision relating to compensation, and not for taking possession with the mutual consent of the parties. The counter affidavit does not even state that the State of Punjab had consented to part with this land, in favour of the Government of Uttarakhand, for the purpose of widening the road leading to the Ghat. In the absence of any such consent from the Government of Punjab, the only manner in which the Government of Uttarakhand can take possession of the land, belonging to the State of Punjab, is by acquisition in terms of the 2013 Act, and on a preliminary notification being issued under Section 11(1) thereof.
Even in case of urgency, Section 40(1) of the 2013 Act stipulates that, whenever the appropriate Government so directs, the Collector, though no such award has been made, may, on the expiration of thirty days from the date of publication of the notice mentioned in Section 21, take possession of any land needed for a public purpose, and such land shall thereupon vest absolutely in the Government, free from all encumbrances. After a preliminary notification is issued under Section 11(1), a Preliminary survey of the land is caused under Section 12, and publication of a declaration is made under Section 19, the Collector is required to cause the land to be marked, measured and planned under Section 20, and thereafter to publish the public notice under Section 21 stating that the Government intends to take possession of the land, and that all claims for compensation, rehabilitation and resettlement for all interests in such land, may be made to him. It is only after expiry of 30 days from the date of publication of the notice, referred to under Section 21, is the State Government entitled to invoke the special powers, under Section 40(1), to take possession of the land, even in case of urgency.
In the present case while the petitioner asserts that a preliminary notification was not issued under Section 11(1), no such plea appears to have been taken in the writ affidavit, nor is any such averment to be found in the counter-affidavit filed by the respondents.
Sections 30 and 31 of the 2013 Act, to which reference is made in the counter affidavit filed by the respondent, is for award of solatium equivalent to 100% of the compensation amount, and for a rehabilitation and resettlement award to be passed for the affected families. These statutory provisions necessitate compliance, only if the land is intended to be acquired, in which event, a preliminary notification, under Section 11(1) of the Act, should have been issued initiating land acquisition proceedings.
Since the facts are not clear, suffice it to hold that, in case possession of the land is not being taken with the consent of the State of Punjab (which is, admittedly, the owner of the land), the only manner in which the Government of Uttarakhand can take possession thereof is by acquiring the said land under the 2013 Act which would commence only on a preliminary notification being issued under Section 11(1) thereof. While the State of Punjab would, undoubtedly, have the right, under Article 300-A of the Constitution of India, not to be deprived of its rights over the subject land, save by authority of law, which, in the present case can only be the 2013 Act, the petitioner's right as a lessee is nebulous. It is not even known whether the lease, which the petitioner claims its right under, is even registered or as to what are the conditions, of the lease, which have been violated. The State of Punjab is not even arrayed as a respondent in this writ petition.
Since the petitioner's rights, in terms of lease deed, can only be established on the basis of evidence adduced before the competent Civil Court, their remedy is only to approach the Civil Court seeking an injunction to restrain the respondents from interfering with their possession over the subject property. Needless to state that the remedy of filing the suit for injunction would only be available, if the petitioner is in possession as a lessee of the property which, admittedly, belongs to the State of Punjab.
We find force in the submission of Mr. Tapan Singh, learned counsel for the petitioner, that Section 98 of the 2013 Act has no application, since the requirement of a notice, under Section 98 of the 2013 Act, is only for a suit or other proceedings to be commenced against any person for anything done in pursuance of the 2013 Act. It is only if the Government of Uttarakhand had initiated proceedings for acquisition, by issuing a preliminary notification under Section 11(1) of the Act, would Section 98 be attracted, prohibiting the petitioner from instituting any suit except after giving one month's prior notice in writing to the other person. If land acquisition proceedings have not been initiated under the 2013 Act, pursuant to a preliminary notification under Section 11(1) thereof being issued, Section 98 would, undoubtedly, not apply. While the requirements of Section 80 of the Code of Civil Procedure may still necessitate compliance, even if the Section 98 does not apply, these are all matters for the competent Civil Court to examine, on its jurisdiction being invoked by the petitioner.
Except to clarify that Section 98 of the 2013 Act would not apply save in cases where acquisition has already been initiated by the State Government, and a preliminary notification has been issued under Section 11(1) thereof, we see no reason to interfere with the order passed by the learned Single Judge.
Leaving it open to the petitioner, in case they so choose, to avail their common law remedy of instituting a Suit, and establish their rights therein, the Special Appeal is, accordingly, disposed of. No costs.