Saraswati Gupta vs State Of Chhattisgarh

Heard.

This petition has been brought praying for issuance of appropriate writ against the respondent authorities, directing them to initiate proceeding for

making acquisition of land belonging to the petitioners and also directing to determine compensation according to the present market value.

It is submitted by counsel for the petitioners that the father of the petitioners, namely, Dau Niranjanlal Gupta was owner of the land bearing khasra

Nos. 967, 971, 975, 990/19 and 995/1, total measuring 3.62 acres, situated at Kasaridih Patwari Halka No. 64/1, Durg, District Durg. Father of the

petitioners expired on 23.2.2010. Prior to that, the respondent authorities had taken possession of the land above-mentioned without drawing any

acquisition proceeding and granting any compensation to the father of the petitioners. Later on, 2.81 acres of land was acquired by the respondent

authorities in the year 1999 and 0.69 acres of land was returned to father of the petitioners. The remaining land, 0.12 acres is the disputed land, which

is neither acquired nor returned to father of the petitioners. On the contrary, respondent No.4 has constructed house and road on this land. Father of

the petitioners filed an application before the respondent authorities praying for grant of compensation of 0.12 acres of disputed land. The respondent

authorities without initiating any acquisition process have passed an order dated 26.2.2003 for payment of compensation of Rs.30,974/- to father of the

petitioners.

It is submitted by counsel for the petitioners that father of the petitioners received the compensation amount as ordered under protest and prayed

for making a reference to the District Judge. The reference was presided by the learned Ninth Additional District Judge, Durg, District Durg in

M.J.C. No. 4 of 2006 and by the order dated 9.5.2008 (Annexure-P/6), the petitioners were granted compensation of Rs.1,39,93,792.92. The

respondent authorities preferred an appeal before the High Court against the order of Reference Judge which has been decided finally by the

judgment dated 2.12.2009 (Annexure-P/7), in which the amount of compensation was reduced to Rs.50,70,542/-. The petitioners have received the

compensation amount as ordered and they have filed SLP before the Supreme Court praying for enhancement of compensation, which is pending. The

petitioners have made various representations before the respondent authorities praying for grant of appropriate compensation for 0.12 acres of land,

but the same has not been considered and decided by the respondent authorities. It is further submitted that the acquisition of land without following

the procedure as laid down under the Land Acquisition Act,1894 is violative of Article 300(A) of the Constitution of India. It is also submitted that by a

memo dated 31.5.2021, the Land Acquisition Officer, Durg has directed respondent No.5 to initiate the proceeding for land acquisition of 0.12 acres of

land in possession of respondent No.5. It is not disputed by the respondent authorities that 0.12 acres of land has not been acquired till date, therefore,

it is prayed that appropriate writs may be issued.

The petitioners have placed reliance on the judgment of Supreme Court in the case of Anand Singh and Anr. vs. State of Uttar Pradesh and Ors.

reported in (2010) 11 SCC 242 and on the judgment of this Court in the case of Manoj Modi and Anr. vs. State of Chhattisgarh and Ors, reported in

2012 (3) CG.L.J. 629.

Learned State representing for respondents No.1, 2 & 3 opposes the submissions made by counsel for the petitioners and submits that the Land

Acquisition Officer has already communicated respondent No.5 for initiating acquisition proceeding, therefore, appropriate order be passed.

Learned counsels for respondents No.4 & 5 opposes the submissions made and submits that the present petition is filed after delay of 39 years. The

land was acquired in the year 1974 whereas, the petition has been filed in the year 2013.

Reliance has been placed on the judgment of Supreme Court in the case of State of Maharashtra vs. Digambar, reported in (1995) 4 SCC 683 and in

the case of Chennai Metropolitan Water Supply and Sewerage Board and Ors. vs. T.T. Murali Babu, reported in (2014) 4 SCC 108.

It is submitted by counsel for respondents No.4 & 5 that the compensation of Rs.30,974/- was determined by the authorities. The petitioners did not

raise any objection on this determination and on the contrary, they filed an application praying for reference. The reference was made accordingly on

which the order dated 5.1.2008 (Annexure â€" P/6) was passed by the Reference Court. Again the petitioners did not raise any objection on this

proceeding even though, they were represented in this reference case.

In First Appeal (M) No. 26 of 2009 before the High Court, the petitioners were again represented but no objection was raised regarding the

procedure adopted. It is further submitted that the petitioners cannot approbate and reprobate.

Relying on the judgments of Supreme Court in the case of R.N. Gosain vs. Yashpal Dhir, reported in (1992) 4 SCC 683, C. Beepathuma and Others

vs. Velasari Shankaranarayana Kadambolithaya and Others, reported in AIR 1965 SC 241, Rajasthan State Industrial Development and Investment

Corporation and Another vs. Diamond & Gem Development Corporation Limited and Another, reported in (2013) 5 SCC 470, and in the case of State

of Punjab and Ors. vs. Dhanjit Singh Sandhu, reported in (2014) 15 SCC 144, it is submitted that the doctrine of election is clearly applicable in the

present case as the petitioners have elected to accept the compensation pursuant to the order of High Court vide (Annexure-P/7), hence, the petition

is fit to be dismissed.

Learned counsel for the petitioners, in reply, submits that clearly the acquisition of 0.12 acres of land has not taken place, even though compensation

has been determined and enhanced in the reference order and then modified by the High Court order, but the wrong done has not been corrected.

0.12 acres of land is still being used by the respondent authorities without acquiring the same and without it being vested with the State. The

respondents cannot be allowed to take benefit of their own wrong. It is clearly held in the case of Anand Singh and Anr. (supra) that right to property

is no longer fundamental right but Article 300A of the Constitution of India mandates that no person shall be deprived of his property save by authority

of law. The continuous use of 0.12 acres of land of the petitioners is clearly without an authority of law, hence, the reliefs prayed for in the petition are

fit to be granted.

Heard counsel for both the parties and perused the record.

On the basis of the submissions made by the petitioners' side and on perusal of the documents present in the record of the petition, there appears

to be no dispute that the total land belonging to the petitioners was 3.62 acres which was taken in possession by respondent No.5 for the housing

purposes in the year 1974. No acquisition proceeding was drawn immediately. The notification dated 5.5.1999 (Annexure-R/1) was published showing

acquisition of 2.81 acres of land. The land acquisition proceeding was then initiated. Memo of Collector dated 29.1.2002 (Annexure-P/2) reflects that

the father of the petitioners had initially 3.62 acres of land, out of which, 2.81 acres of land was acquired, regarding which the compensation was paid

and 0.69 acres of land was returned to father of the petitioners. Admittedly, remaining land of 0.12 acres was not returned. The Collector had

proposed payment of Rs.30,098/- as compensation for the remaining 0.12 acres of land to father of the petitioners, which was later on determined as

Rs.30,974/- against which, the petitioners prayed for reference and the orders on that reference have been passed by the learned 9th Additional

District Judge, Durg and further, the order has also been passed in the first appeal by this High Court. Although, the petitioners have received the

compensation as modified by the High Court, but the question raised is whether the proceeding drawn so far can be regarded as a proceeding as per

the provisions of Land Acquisition Act or not. Prior to the enactment of the Right to Fair Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, 2013 and the Land Acquisition Act, 1894 was in force.

According to Section 4 of the Act, 1894 in the matter of acquisition by the appropriate government a notification was required to be published by

the Collector mentioning the details of land to be acquired. Section 7 of the Act, 1894 empowered the Collector to take order for the acquisition of the

land. Section 9 of the Act, 1894 provided for the issuance of notices to the persons interested and Section 11 of the Act, 1894 empowered the

Collector to make an enquiry and pass award of compensation against the land acquired. Section 16 of the Act 1894 is specific that before passing of

order under Section 11 of the Act, 1894 the Collector had entitlement to take possession of the land subsequent to which, the land was to vest

absolutely in the government free from all encumbrances.

In the present case, there is clear admission of the respondent authorities that the remainder of 0.12 acres of land was not acquired, which is

reflected from the memo dated 29.1.2002 of Collector, Durg (Annexure-P/2) and the memo dated 12.6.2014 filed as Annexure-R/1 issued by the Sub-

Divisional Officer, Revenue/ Acquisition Officer, Durg and also the admissions made in the reply of the respondents.

Although, some compensation has been paid to the petitioners pursuant to the order of High Court vide Annexure-P/7, but the order of the

Collector on which the reference was made, was not an award in the terms of Section 11 of the Act, 1894 and such an award could have been drawn

by the Collector only after completion of the other formalities, such as issuance of notification for acquisition under Section 4 of the Act, 1894, hearing

objections under Section 5(A) of the Act, 1894, passing order for acquisition as required under Section 7 of the Act, 1894. Taking possession of the

land acquired is a subsequent event according to Section 16 of the Act, 1894 and clearly, no such proceeding was drawn and completed before taking

possession of the property in dispute and utilizing the same by the respondents. Hence, the effect of this proceeding could be that the land belonging to

the petitioners in possession of respondent No.5 is without any lawful authority as the proceeding of acquisition was never taken up for this piece of

land and therefore, the same land cannot be said to be vested with the State Government absolutely free from all encumbrances. In the case of Anand

Singh and Anr. (supra), the Supreme Court has held that any person cannot be deprived of his property save by authority of law and this valuable right

is available to an individual and violation of which would amounts to violation of Article 300A of the Constitution of India. Hence, the possession of

property of the petitioners without the process of law cannot be ratified by any means. Hence, I am of this view that this petition is fit to be allowed

and the petition is allowed. The respondent authorities are directed to initiate the proceedings for making acquisition of 0.12 acres of land of the

petitioners, in accordance with law as may be applicable at present. All legal formalities be completed before passing of the final award of

compensation. The compensation that has been paid so far to the petitioners on the basis of the earlier orders, shall be adjusted in the award to be

passed by the Land Acquisition Officer.

With the aforesaid order and direction, the petition is disposed off.