Shashi Mohan Thakur vs The State of Bihar and Others

S.K. Chattopadhyaya, J.—Heard Mr. Mishra, learned Counsel for the Petitioner and Mr. Hussain, learned Government Pleader No. II on behalf of the Respondents.

At this juncture it is necessary to mention that the Respondent No. 2, Dr. S.P. Seth, the Commissioner cum Secretary, Health Medical Education and Family Welfare, Bihar, Patna, has ventured to defend his action personally by addressing the court though learned G.P. 2 is present in court throughout to represent all the Respondents. On the request made by the learned G.P. 2 this Court earlier granted time to file counter affidavit and the same has been filed today. When the Government Pleader was addressing the court, the Respondent No. 2 intervened by his gesture and on his request the learned Government Pleader prayed before the court to allow Dr. Seth to argue the case personally. Though this Court feels that it is a bad precedent, but considering the awkward position of Mr. Hussain, I allow Dr. Seth to defend his action in the facts and circumstances of the case.

In this application prayer has been made to direct the Respondent authorities to comply with the order dated 6.7.2000 passed by the Collector, Bhagalpur (Respondent No. 4) by which he has directed to deliver the possession of the land in question to the Revenue Department.

The facts of the case in brief are that as far back in 1975 certain land was acquired by the State Government for construction of Medical College at Bhagalpur town. Admittedly the Medical College has been constructed on some other land and not on the land of the Petitioner which was acquired in 1975.

It is stated in the supplementary affidavit that the Medical College and Hospital, known as Jawahar Lal Nehru Medical College and Hospital, has been constructed on an altogether different land and is well functioning in a very big building known as Navlakha Kothi situated just at Mayaganj police station, Barari in Ward No. 4, Khata No. 796, Plot No. 1709, which is at a distance of about three kilometers from the land of the Petitioner. Specific case of the Petitioner is that his total land measuring 16.59 acres were acquired in 1975 but the same has not been utilized for a long period of about 26 years, as a result the same has fallen barren.

The Petitioner filed a petition before the Collector of the District of Bhagalpur giving rise to Misc. Case No. 58/93-94 with a prayer to direct the authorities to deliver possession of the land to him on the undertaking that the Petitioner will return the entire compensation amount which was paid to his deceased father. The said petition was filed, some time in 1993 but when the same was not disposed of by the Collector, the Petitioner moved this Court in C.W.J.C. No. 3488/94 praying therein to command the Respondents to give possession of the land in question which was acquired in Land Acquisition Case No. 13 of 1975. this Court noticed the policy decision of the State Government dated 12.1.1979 in which it was received that the land acquired for public purpose may be returned to the land holder or his heirs subject to return of compensation amount already received by him them in case the land in question has not been utilized for public purpose.

On the assertion being made by the Petitioner that his acquired land was not utilized till then this Court gave time to the State Government for filing counter affidavit but, as usual, no counter affidavit was filed on behalf of the State and, as such, this Court disposed of the writ application on 1.3.2000 with an observation that "in case, such a representation is filed by the Petitioner pursuant to the policy decision of the State Government, referred to above, before Respondent No. 2, the same shall be disposed of by a speaking order by Respondent No. 2 within a period of three months, from the date of filing of the same".

Thereafter, pursuant to the order dated 1.3.2000 the Petitioner again represented his case before the Collector, Bhagalpur, (Respondent No. 4) and on perusal of the records of the case, order of the High Court and the representation of the Petitioner he passed the order dated 6.7.2000 directing the Health, Medical Education and Family Welfare to return the land in question to the department of Revenue and Land Reforms as per the policy decision of the State Government. This order of the Collector is Annexure-6 to the writ petition.

There is no dispute that the Department of Health, Medical Education and Family Welfare sought legal opinion from the Law Department of Bihar on 20.12.2000 for filing a Review application against the order of the Collector. The Law Department in turn sent the entire records before the learned Advocate General for his opinion and it appears that on 24.1.2001 the learned Advocate General opined that he did not find any illegality in the order of the Collector which has been passed in terms of the High Court order and the State Government''s policy decision. He further opined that no ground has been mentioned for filing the Review application. With his opinion the file was returned on 2.2.2001 to the Health Department via Law Department.

Thereafter, admittedly, no step was taken by any of the officers of the department to get a further opinion from the learned Advocate General. From the affidavit of the Law Secretary it appears that only after filing of the writ application the authorities of the Health Department endorsed the file on 27.6.2001 to the Law Department for fresh opinion regarding filing of a petition for review against the Collector''s order. This endorsement was made pursuant to the order of the Minister of Health on 17.5.2001. The file was again sent to the Law Department on 26.8.2001 for giving its opinion afresh. The Law Secretary has categorically stated that he considered the matter afresh, perused the opinion of the learned Advocate General and verified the provisions of law and finally noted in the file on 12.7.2001 that "he saw no reason to disagree with the earlier opinion expressed by the learned Advocate General and by himself". Thereafter the file was returned to the Health department on 13.7.2001.

These are the basic features of the case which have not been, controverted by the Respondent No. 2 by filing any counter affidavit. However, Dr. Seth has advanced three points challenging the order of the Collector; (i) that the order being invalid and without jurisdiction cannot be implemented, (ii) that after his assumption of charge of the office on 13.6.2001 he did not find any time to convince the learned Advocate General to review his opinion, as the matter was never placed before him by other officers of the department and (iii) that the authority, who has sanctioned the plan, has not stated that the land is not required for the purpose for which it was acquired.

In my view, none of the submissions of Dr. Seth is well founded. It appears that he has misconception of legal position and, as such, he as the Respondent, wants to challenge the order of the Collector, which was never challenged by the State Government his department before any higher forum. Being Respondent, in my view, he cannot be allowed to impugn the order of the Collector on any ground whatsoever. Secondly the learned Advocate General as well as the Law Secretary of the State have given their opinion against filing of any Review petition against the order of the Collector. In such circumstances, I fail to appreciate as to how the concerned Minister as well as the Respondent No. 2 is so much interested in holding the land, which admittedly has not been utilized for the last 26 years after its acquisition. The Respondent No. 2 has not disputed the fact that the Medical College for which the land of the Petitioner was acquired in 1975 has been constructed on other land except the parcels of land named as Blocks A, A/1, B.B/1, B/2, C, C/1, D, E, E/1, F, G, G/1, G/2, I, J which have been shown in the enclosure to Annexure-A. According to him (sic) acquired fully or partly have been used or are in the process of being used or shall be used in connection with construction of Bhagalpur Medical College. However, the assertion of the Petitioner that his'' land is situated three kilometres away from the land on which the Medical College exists has not been controverted.

Whatever may be the position, from the order of the Collector it appears that he has taken pain to go through the entire records and has mentioned about some intra departmental letters. He found from order of the then Collector dated 22.2.94 that the Collector asked for a report from the Circle Officer regarding the status of the land acquired as on 22.2.1994 and also to get a report from the Principal of Bhagalpur Medical College as to whether the acquired land was to be utilized for any public purpose in future or not. On 31.12.1996 the Circle Officer, Jagdispur by his letter reported that the land in question relating to this case was not utilized as on the date of reporting, that is, 1996. The letter of the Principal of the Medical College dated 30.8.1997 addressed to the Dy. Secretary, Health, Medical Education and Family Welfare shows that she requested for clear cut instructions as to how the department would like to use the acquired land and to intimate her accordingly Similar letter dated 17.1.1998 of Sri B.P. Srivastava, Dy. Secretary, Health, Medical Education and Family Welfare department, Bihar was addressed to the Principal of the Medical College for details as to whether any other letter was issued by the Revenue and Land Reforms Department and whether any revised map master plan listed for construction of Medical College Building and the correspondence made with Health, Revenue and Building Construction Department and the Collector etc.

Noticing all these letters ultimately the Collector has come to the finding that in view of above mentioned situation and facts and circumstances it has been well established that the land in question which was acquired in 1975 for the purpose of construction of Medical College has not been utilized for the said purpose and the fact that in spite of the existence of this case from Nov. 93 and several letters from concerned officers of the department to take prompt action to utilize the said land the Department of Health, Medical Education and Family Welfare failed to take any action to utilize the said land from 1994 until now and thus it has been established that the said department is not in need of the said land. Lastly, the Collector has referred to the policy decision of the State Government dated 12.1.1979 which says about the return of the acquired land which becomes surplus and is not required necessary to the Department of Revenue and Land Reforms for returning to the original owner or to the legal heirs of the owner, in case the owner is dead on receipt of the compensation amount paid to the owner in respect of the land acquired after getting confirmed that such land is not required for use of any other Government Department.

This policy decision of the Government, in my view, has rightly been appreciated by the Collector. After getting confirmation that such land is not required for use for any other departments the Collector passed the said order.

It appears from Annexure-A to the counter affidavit filed today that as the matter was agitated before the State Legislature, the department including the Respondent No. 2 became more conscious in impugning the order of the Collector on some frivolous ground. No factual basis was brought before the writ court by filing counter affidavit, though asked for, and at this stage the Respondent No. 2 wants to defend his action as well as his department''s action in impugning the order of the Collector, Bhagalpur Respondent No. 4. In my view, this cannot be allowed by this Court. Moreover, Dr. Seth has failed to point out as to why the Department or his predecessor did not find it logical to impugn the order of the Collector and what inspired him at such a belated stage to criticize the Collector for passing the order. I say no further but from his conduct I am of the opinion that he is bent upon to violate not only the policy decision of the Government but also the observations made by this Court in the earlier writ application as well as the order of the Collector. Even he has dared to criticize the Collector for passing the said order without getting the said order impugned after getting some opinion from any other legal luminaries if he was not satisfied with the earlier opinion of the learned Advocate General of Bihar. This conduct of Respondent No. 2 cannot be appreciated by this Court.

In the result, this application is allowed. The Respondent No. 2 is hereby directed to return the land in question to the Secretary, Revenue and Land Reforms Department, Bihar, Patna within four weeks from receipt production of a certified copy of this order after fulfilling all formalities. The Respondent No. 3, the Secretary, Revenue and Land Reforms is in turn directed to ask the Petitioner to return the compensation amount paid to his deceased father and on such return will give possession of the land to the Petitioner without any further delay. However, it is made clear that the Respondent No. 3, before giving possession of the land to the Petitioner, Shashi Mohan Thakur, will ask for a succession certificate in order to avoid any future complication regarding ownership of the land.

Before parting with this order I must express dissatisfaction with the manner in which the Respondent No. 2 has undermined the position of a Senior State Counsel Mr. Hussain. However, on request being made by Mr. Hussain, learned G.R 2 I refrain myself from imposing any cost on Respondent No. 2.

Let a copy of this order be handed over to Mr. Hussain for immediate communication to the concerned authorities.