State Of H.P. & Ors vs Karam Chand & Anr

Jyotsna Rewal Dua, J

The writ petition preferred by the respondents was allowed on 07.12.2011. Notification dated 14.02.2008, issued by the State under Section 48 of the Land Acquisition Act, 1894 (the Act hereinafter) was quashed and set aside with further directions to the State to pay compensation to the writ petitioners in lieu of their land acquired by the State. Aggrieved, the State has laid challenge to the aforesaid judgment passed by learned Single Judge.

Facts

2(i) The respondents filed CWP No.840 of 2007 with the pleadings that: -

2.(i)(a) The Land Acquisition Collector, Himachal Pradesh Public Works Department passed award No.8 of 2000 on 21.06.2000, inter-alia, awarding compensation in favour of the writ petitioners in respect of land comprised in Khasra No.86/1, measuring 1-5 bighas, situated in Village Bhadrog, Tehsil Ghumarwin, District Bilaspur, H.P.

2.(i)(b) The aforesaid land of the writ petitioners was acquired by the State for construction of Patta-Bhadrog-Kashol-Morsinghi road.

2.(i)(c) The possession of acquired land was taken over by the State. Mutation No.565 to this effect was attested in favour of the State qua the land in question on 24.9.2003, yet the State had not paid compensation due to the petitioners in terms of the award.

2(ii). In reply filed to the writ petition, the State took the stand that though the land of the writ petitioners was acquired, however, it was not utilized for construction of the road; The said land was 160 mtrs. away from the road and could not be utilized for constructing the road; The land was wrongly acquired as it was not required for road construction. The respondents also took the stand that the State had initiated the process to de-acquire the land under Section 48 of the Land Acquisition Act (the Act' in short).

2(iii). During hearing of the writ petition on 01.12.2010, learned Additional Advocate General informed the Court that a notification had been issued on 14.02.2008 under Section 48 of the Act for de-notifying the acquisition of the land in question.

2(iv). Based on the above information, present respondents (writ petitioners) amended the writ petition with permission of the Court and, inter-alia, laid challenge to notification dated 14.02.2008 by incorporating an additional ground in the writ petition that the said notification was illegal and further that no notice was ever issued to the petitioners by the State at any stage before unilaterally resorting to the provision of Section 48 of the Act.

2(v) The State in its reply filed to the amended writ petition, reiterated its earlier stand and asserted that the acquisition of land in question was justly withdrawn vide order dated 14.02.2008. It was further put forth that mutation No. 565 dated 24.09.2003 has been cancelled by the revenue authorities vide mutation No.801, attested on 28.06.2011. The State highlighted that possession of the land in question was never taken by it and that the writ petitioners remained in possession of land, throughout.

2(vi). On considering the pleadings, record and respective submissions made for the parties, learned Single judge held that the land in question was acquired by the State. Possession of the land in question had been taken over by the respondents-State. After taking the possession, it was not within the purview of the State to exercise powers under Section 48 of the Act for withdrawing from acquisition. Direction was issued to the State to pay compensation to the writ petitioners in accordance with law.

2(vii) It is in the aforesaid background that the State has preferred instant appeal.

We have heard counsel on both sides and considered material on record.

Our findings are as under: -

4.(i) There is no dispute between the parties about following facts: -

4(i)(a) That the writ petitioners were owners of khasra No.86/1 measuring 1-5 bighas, situated at village Bhadrog, Tehsil Ghumarwin, District Bilaspur, H.P.

4(i)(b) That the aforesaid land was part of the land acquisition process initiated by the State for construction of Patta-Bhadrog-Kashol-Morsinghi road.

4(i)(c) That the Land Acquisition Collector had passed award No.8/2000 on 21.06.2000, awarding compensation to the petitioners in lieu of acquisition of the aforesaid land.

4(i)(d) That award No.8/2000 had attained finality.

4(i)(e) That vide mutation No.565, attested on 24.09.2003, possession of the acquired land was transferred in favour of the State. The change in the ownership & possession w.r.t. the land in question was reflected in the revenue record.

4(ii) In the backdrop of above admitted facts, the grievance of the writ petitioners regarding non-payment of compensation in terms of award No.8/2000 for their acquired land, was justified. The State was duty bound to pay compensation to the writ petitioners in terms of the award. The writ petitioners had accordingly filed the writ petition on 13.06.2007 for redressal of their grievances. It was during the pendency of the writ petition, that the respondents came up with notification dated 14.02.2008 issued in purported exercise of powers under Section 48 of the Land Acquisition Act, 1894 withdrawing the acquisition. Such a recourse was impermissible in law. Section 48 of the Act reads as under:-

“48 Completion of acquisition not compulsory, but compensation to be awarded when not completed.

(1) Except in the case provided for in section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken.

(2) Whenever the Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings thereunder, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land.

(3) The provisions of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this section. State Amendments."

Section 48 (1) of the Act clearly provides that the Government can withdraw from the acquisition of any land, of which possession has not been taken by it. The power under Section 48(1) of the Act can only be exercised before possession of the land is taken. Once possession of the land is taken over by the Government, the land vests in the Government and power of the Government under Section 48(1) of the Act to withdraw acquisition in regard to such land will cease to exist [see (2010) 5 SCC 791 (Mysore Urban Development Society Vs. Veer Kumar Jain and others)].

In (2020) 8 SCC 129 (Indore Development Authority Vs. Manohar Lal and others), it was, inter-alia, held that once title vests in the State under Section 17 of the Land Acquisition Act, 1894, divesting of title is not a possibility at all. Once vesting takes place and is with possession after which a person who remains in possession is only a trespasser, not in rightful possession and vesting contemplates absolute title & possession in the State.

(2012) 12 SCC 133 (V. Chandrasekaran and another Vs. Administrative Officer and others) holds that once the land is vested in the State free from all encumbrances, it cannot be divested under Section 48 of the Act and proceedings under the Land Acquisition Act, 1894 would not lapse even if an award is not made within the statutory stipulated period. Land, once acquired, cannot be restored to the tenure holders/persons interested even if it is not used for the purpose for which it was so acquired or for any other purpose either. Paras from this judgment relevant to the context are as under: -

“25. It is a settled legal proposition, that once the land is vested in the State, free from all encumbrances, it cannot be divested and proceedings under the Act would not lapse, even if an award is not made within the statutorily stipulated period.

The said land, once acquired, cannot be restored to the tenure holders/persons-interested, even if it is not used for the purpose for which it was so acquired, or for any other purpose either. The proceedings cannot be withdrawn/abandoned under the provisions of Section 48 of the Act, or under Section 21 of the General Clauses Act, once the possession of the land has been taken and the land vests in the State, free from all encumbrances.

The meaning of the word 'vesting', has been considered by this Court time and again. In Fruit and Vegetable Merchants Union v. Delhi Improvement Trust, AIR 1957 SC 344, this Court held that the meaning of word 'vesting' varies as per the context of the Statute, under which the property vests. So far as the vesting under Sections 16 and 17 of the Act is concerned, the Court held as under.-

"19…….In the cases contemplated by Sections 16 and 17, the property acquired becomes the property of Government without any condition or ; limitations either as to title or possession. The legislature has made it clear that vesting of the property is not for any limited purpose or limited duration.”

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In Govt of .A.P. v. Syed Akbar , this Court considered this very issue and held that, once the land has vested in the State, it can neither be divested, by virtue of Section 48 of the Act, nor can it be reconveyed to the persons- interested/tenure holders, and that therefore, the question of restitution of possession to the tenure holder, does not arise.”

(emphasis supplied)

4(iv) In view of above legal position, the notification dated 14.02.2008, issued under Section 48 of the Act has to be held as illegal as not only the land in question stood acquired and the award in that regard was passed on 21.06.2000, but the possession of the land in question having been officially transferred in favour of the State, has also been evidenced in the revenue record under mutation No.565 attested on 24.09.2003. Therefore, learned Single Judge was justified in quashing the impugned notification dated 14.02.2008, issued by the appellant-State under Section 48 of the Land Acquisition Act. The directions to the appellant-State to pay compensation to the writ petitioners in accordance with law, do not suffer from any illegality.

In view of above discussions, the present appeal lacks merit. The same is accordingly, dismissed. The pending miscellaneous application(s), if any, also stand disposed of.