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Awadh Bihari Yadav & Ors Vs. The State of Bihar & Ors [1995] INSC 446 (31 August 1995)

Paripoornan, K.S.(J) Paripoornan, K.S.(J) Ramaswamy, K. Paripoornan, J.

CITATION: 1996 AIR 122 1995 SCC (6) 31 JT 1995 (6) 248 1995 SCALE (5)74

ACT:

HEAD NOTE:

WITH CIVIL APPEAL NOS. 7820-21 OF 1995. [Arising out of SLP(C) Nos. 21401-02 of 1993] Sita Ram Gope & Ors. V. The State of Bihar & Ors.

Leave granted.

2. A batch of four writ petitions - CWJC No. 8426/88, CWJC No. 6373/88, CWJC No. 3720/90 and CWJC No.9000/89, was heard and disposed of by the High Court of Patna by a common judgment dated 30.7.1993. The appellants who obtained leave in S.L.P. (C) No. 20490 of 1993, are the petitioners in CWJC No. 8426 of 1988. The intervenors and respondents in CWJC No. 6373/88 and the petitioners in CWJC No. 3720/90, who have filed the civil appeals in pursuance to leave granted in S.L.P. (C) Nos. 21401-02 of 1993, are the appellants in the other appeals. No appeal is preferred by any of the parties in CWJC No. 9000/89 against the common judgment. The State of Bihar, its officials - the Patna Municipal Corporation, the Patna Regional Development Authority, the District Land Acquisition Officer, Patna, the Buddha Griha Nirman Sahyog Samiti Ltd. and its officials are the respondents in these appeals.

3. The main contesting respondents in the above appeals are - the State of Bihar, the Patna Regional Development Authority, and the Buddha Griha Nirman Sahyog Samiti Ltd. CWJC No. 6373/88 was a writ petition filed by the Buddha Griha Nirman Sahyog Samiti Ltd., praying that appropriate directions may be given to the respondents therein (the State of Bihar and its officials, Patna Municipal Corporation, Patna Regional Development Authority and the District Land Acquisition Officer) to give effect to the directions given by the High Court in CWJC No. 3241/82 in the judgment dated 23.5.84, and for other consequential and incidental reliefs, including directions to the respondents to remove the encroachments or unauthorized constructions from the vacant lands which formed the subject matter of the notification. The four writ petitions were disposed of by a common judgment dated 30.7.1993, by a Division Bench of the Patna High Court (S. B. Sinha and D. Sinha, JJ). By the aforesaid judgment the learned Judges directed the land acquisition officer to sign and complete the award in terms of the earlier order of the Court dated 31.7.1984, in Form 15 and to take further steps in terms of Section 12 of the Land Acquisition Act,1894 (hereinafter referred to as the 'Act'). CWJC No. 6373/88 was allowed to the above extent.In view of the above directions, the other writ petitions were dismissed. The learned Judges also observed that the office will start preparing separate records relating to the contempt of court matters so as to pass necessary orders, and that the authorities before whom a suit and other encroachment proceedings relating to the land under acquisition were pending, shall expedite them. Aggrieved by the aforesaid judgment, the petitioners in CWJC No. 8426/88, the respondents and intervenors in CWJC No. 6373/88 and the petitioners in CWJC No. 3720/90, after obtaining special leave have filed the aforesaid appeals.

4. We heard Mr. Raja Ram Agarwal and Mr. S. B.Sanyal, Senior Counsel who appeared on behalf of the appellants and Mr. P. N. Lekhi, Senior Counsel, Mr. B.B. Singh, Advocate and Mr. A. Sharan, Advocate, who appeared on behalf of the respondents. The subject matter in the appeals relates to land acquisition proceedings, covering an extent of about 32.48 acres in the villages of Rajapur No. 3 and Dujra No. 4, Perganna Phulwari, Thana Phulwari, District Patna, initiated under Section 4(1) read with Section 17(4) of the Act as amended by Bihar Act No. 18 of 1964.

5. Budhha Griha Nirman Sahyog Samiti Ltd., a society registered under the Societies Registration Act on 4.3.1958, (hereinafter called the 'Society'), and its officials are the petitioners in CWJC No. 6373/88. The Society requested the State Government to acquire land for the purpose of providing it to doctors, lawyers, Government servants and journalists for building purpose. An extent of 25.09 acres of land was acquired under the normal procedure and the acquisition was completed on 11.7.1862. Possession of the land was taken and compensation was also paid. There is no controversy about this part of the acquisition.

6. The Society wanted to acquire another block of 32.48 acres, the land adjacent to the aforesaid 25.09 acres.

The entire controversy in this batch of appeals is regarding this acquisition, initiated under Section 4 read with Section 17(4) of the Act ("emergency" acquisition). The Notification relating thereto is dated 4.2.1959. The declaration under Section 6 was made on 4.6.1969. A writ petition filed in the High Court assailing the above proceedings was allowed with liberty to the authorities to initiate proceedings afresh on 2.4.1960. While so, the Patna Improvement Trust (Patna Development Authority), (hereinafter referred to as the 'Authority'), requested the Government to acquire 64.48 acres of land in Dujra and Rajapur villages for its Boaring Road Development Scheme, Phase-I. The extent of 32.48 acres of land which the Society wanted to acquire and for which proceedings were initiated (under Section 4(1) read with Section 17(4) fell within the area, which the Authority wanted the Government to acquire.

A fresh Notification under Section 4 read with Section17(4) of the Act, proposing to acquire 64.48 acres of land was promulgated on 6.8.1961.There was an understanding that upon acquisition, out of the above land, 32.48 acres would be transferred to the Society. A declaration under Section 6 of the Act dated 5.10.1961, appeared in the Gazette on 7.10.1961. As stated, the possession of 25.08 acres acquired under the ordinary procedure was handed over to the society on 11.7.1962. It appears that possession of an area of 57.71 acres covered by the later notification, was delivered to the Authority on 6.8.1962. Later, the Authority handed over possession of 32.48 acres to the Society. While so, in M.J.C. No. 65/62 the High Court of Patna stayed the land acquisition proceedings. The stay was in force from 23.1.1962 to 1.7.1964 and the M.J.C. was finally withdrawn.

It appears that the Society deposited with the Authority a sum of Rs.1 million on 7.4.1965. By letter No.254, dated 18.1.1972 the Government directed the Collector not to make the award till fill payment of compensation was deposited by the Authority. The acquisition was questioned in C.W.J.C. No. 812/67 in the High Court of Patna. The said petition was dismissed. The matter was taken in appeal to this Court. The appeal was also dismissed. The decision of this Court is reported in Ajodhya Bhagat and others vs. The state of Bihar and others, AIR 1974 sc 1886. The Authority did not deposit the entire compensation amount despite reminders.

While so, on 14.8.1981 the Authority passed a resolution not to acquire the entire lands sought, expect those portions which were required for construction of the road. It is stated that two awards were passed on 13.3.1982 for an extent of 4.47 acres and 3.32 acres only and the amount of compensation due thereunder were also paid. No award was passed in respect of the remaining lands. It is in these state of affairs, on 22.8.1982 the Society filed the writ petition CWJC No. 3241/82, and assailed the resolution of the Authority dated 14.8.1981 and also prayed for a direction to the respondents therein to release the lands.

The High Court of Patna by its Judgment dated 23.5.1984, quashed the resolution of the Authority dated14.8.1981, and also directed the District Collector to prepare the award.In the said Judgment, it was noticed that the Society was given possession of lands acquired under the normal procedure - 25.08 acres, and also lands acquired under the emergent procedure - 32.48 acres. The Court further found that since possession of the land had been taken, the Government cannot withdraw from the acquisition. The validity of acquisition was upheld by the High Court which was affirmed by this Court and it was observed that the acquisition cannot be nullified, for not passing an award. The Court also noticed that there was unauthorized construction and encroachments, but since the land vested in the Government and possession was taken over, no rights will acquire by such unauthorized construction and encroachments. It is seen that the special leave petition filed against the Judgment of the High Court in CWJC No. 3240/82 was dismissed by this Court on 23.9.1984. Pursuant to the aforesaid Judgment an award dated 31.7.1984 was passed. The appellants contend that the proceeding dated 31.7.1984 is only a valuation statement and not an award. According to the respondents, the proceeding dated 31.7.1984 is in substance an award. The Society filed an application before the Collector under the Bihar Public Encroachment Land Act, 1976 against 207 persons. The Society also filed Title Suit No. 32/87 in the Sub Court I, Patna against 357 persons for restoration of possession by evicting the encroachers.

7. The above events led to the filing of CWJC No. 6373//88 by the Society against the State of Bihar, the Authority and the Land Acquisition officer to give effect to the Judgment rendered in CWJC No. 3241/82 and for other reliefs and complete the acquisition proceedings. The appellants herein filed CWJC No. 8426/88 and 3720/90, in effect contending that the entire land acquisition proceedings had lapsed in view of Section 11-A of the Act.

They are also intervenors in CWJC No.6373/88. Before us, as also before the High Court, the objections of the appellants and intervenors against the land acquisition proceeding are three-fold:

(i) The land acquisition proceeding have lapsed in view of Section 11-A of the Act.

(ii) The proceedings dated 31.7.1984 is not an award since it is not in Form 15 and is unsigned.

(iii) The Society is not entitled to any relief as prayed for in CWJC No. 6373/88, since it has initiated alternate proceedings by way of title suit and application under the Bihar Public Land Encroachment Act, 1956.

8. The sheet-anchor of the appellants plea is that the land acquisition proceedings have lapsed in view of Section 11-A of the Act. In order to understand the scope of the plea it will be useful to extract the relevant provisions of the Acts. [Section 6, Section 11, Section 11- A, Section 17 and Section 18(1)].

"6. Declaration that land is required for a public purpose.- (1) Subject to the provisions of Part VII of this Act, when the appropriate Government is satisfied, after considering the report , if any, made under Section 5-A, sub-section (2), that any particular land is needed for a public purpose, or for a Company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorized to declarations may be made from time to time in respect of different parcels of any land covered by the same notification under section 4, sub-section (1), irrespective of whether one report or different reports has or have been made (wherever required ) under Section 5-A, sub- section (2) Provided that no9 declaration in respect of any particular land covered by a notification under Section 4, sub- section (1),- (i) published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance 1967 (1 of 1967), but before the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of three years from the date of the publication of the notification;or (ii) published after the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of one year from the date of the publication of the notification:

Provided further that no such declaration shall be made unless the compensation to be awarded for such property id to be paid by a Company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority." "11. Enquiry and award by Collector.- (1) on the day so fixed, or on any other day to which the enquiry has been adjourned, the Collector shall proceed to enquire into the objections (if any) which any person interested has stated pursuant to a notice given under Section 9 to the measurements made under Section 8, and into the value of the land at the date of the publication of the notifications under Section 4, sub- section (1), and into the respective interests of the compensation and shall make an award under his hand of - (i) the true area of the land;

(ii) the compensation which in his opinion should be allowed for the land;and (iii)the apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom,or of whose claims, he has information, whether or not they have respectively appeared before him:

Provided that no award shall be made by the Collector under this sub- section without the previous approval of the appropriate Government or of such officer as the appropriate Government may authorise in this behalf:

(2) Notwithstanding anything contained in sub-section (1), if at any stage of the proceedings, the Collector is satisfied that all the persons interested in the land who appeared before him have agreed in writing on the matters to be included in the award of the Collector in the form prescribed by rules made by the appropriate Government, he may without making further enquiry, make an award according to the terms of such agreement.

(3) The determination of compensation for any land under sub-section (2) shall not in any way affect the determination of compensation in respect of other lands in the same locality or elsewhere in accordance with the other provisions of this Act.

(4) Notwithstanding anything contained in the Registration Act,1908, (16 of 1908), no agreement made under sub- section (2) shall be liable to registration under that Act." "11-A. Period within which an award shall be made.- The Collector shall make an award under Section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse:

Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment ) Act, 1984, the award shall be made within a period of two years from such commencement.

Explanation.- In computing the period of two years referred to in this section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court shall be excluded." "17. Special powers in cases of urgency.- (1) In cases of urgency, whenever the appropriate Government si directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in Section 9, sub- section (1), take possession of any land needed for public purpose. Such land shall thereupon vest absolutely in the Government, free from all encumbrances.

XXX XXX XXX (4) In the case of any land to which, in the opinion of the appropriate Government, the provisions of sub- section (1) or sub-section (32) are applicable, the appropriate Government may direct that the provisions of Section 5-A shall not be apply, and, if it does so direct, a declaration may be made under Section 6 in respect of the land at any time after the date of the publication of the notification under section 4, sub-section (1)." "48. Completion of acquisition not compulsory, but compensation to be awarded when not completed.- (1) Expect 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." It was contended that in view of Section 11-A of the Act the entire land acquisition proceedings lapsed as no award under Section 11 had been made within 2 years from the date of commencement of the Land Acquisition Amendment Act, 1984. We are of the view that the above plea has no force.

In this case, the Government had taken possession of the land in question under Section 17(1) of the Act.It is not open to the Government to withdraw from the acquisition (Section 48 of the Act). In such a case, Section 11-A of the Act is not attracted and the acquisition proceedings would not lapse, even if it is assumed that no award was made within the period prescribed by Section 11-A of the Act. Delivering the Judgment of a Three Member Bench of this Court, in Stander Prasad Jain and others vs. State of U.P. and others, 1993 (4) sc 369, s.p. Bharucha, J., at page 374, paragraph 15, stated the law thus:

"Ordinarily, the Government can take possession of the land proposed to be acquired only after an award of compensation in respect thereof has been made under section 11. Upon the taking of possession, the land vests in the Government, that is to say, the owner of the land loses to the Government the title to it.This is what section 16 states. The provisions of section 11-A are intended to benefit the landowner and ensure that the award is made within a period of two years from the date of the section 6 declaration. In the ordinary case, therefore, when Government fails to make an award within two years of the declaration under section 6, the land has still not wasted in the Government and its title remains with the owner, the acquisition proceedings are still pending, and by virtue of the provisions of section 11- A, lapse. When section 17(1) is applied by reason of urgency, Government takes possession of the land prior to the making of the award under Section 11 and thereupon the owner is diversted of the title to the land which is vested in the Government. Section 17(1) states so in unmistakable terms. Clearly, section 11- A can have no application to cases of acquisition under Section 17, because the lands have already vested in the Government and there is no provision in the said Act by which land statutorily vested in the Government can revert to the owner." (Emphasis supplied) We, therefore, hold that the land acquisition proceedings in the instant case did not lapse.

9. We are also of the view that the proceedings dated 31.7.1984 (appearing 82 to 84 of Paper Book, Vol.I, and at pages 203 to 206 of paper Book, Vol.II), is in substance an award as contemplated by Section 12 of the Act.It is signed by the District Land Acquisition officer (Collector) under the Act, though the signature appears to be illegible dated 31.7.1984, the High Court observed that the State is bound by the directions given by the Court earlier in CWJC No.

3142/82, that in the light of the aforesaid order of the High Court, proceedings dated 31.71984 was passed, that all requisites of an award are mentioned in the said ordure, and since there is substantial compliance, it should be treated as an award. The High Court was also of the view that even a defective award which has provisions with the directions of the Court and the provisions of law will not invite " the wrath" of Section 11-A of the Act. We are in general agreement with the reasoning and conclusion of the high Court in holding that three proceedings dated 31.7.1984, in the facts and circumstances of the case, is an award passed by the Collector under the Act, though not in Form 15. It is only a matter of procedure which should be complied with.

Since the direction given by the High Court in CWJC No. 3241/82 should not be effectuated, the High Court was justified in directing the authority concerned to sign and complete the award in t terms of the earlier order dated 31.7.984. The reasoning of the High Court that it has power to issue such directions under Article 215, in a case where otherwise the conduct of the persons called for punishment in contempt, appears to be justified. We hold that the proceedings dated 31.7.1984, is in substance, an award, though it is not in Form 15.

10. Mr. Sanyal, senior counsel, very strongly contended that since the Society filed an application before the Collector under the Bihar Public Land Encroachment Act, 1956, and also title suit No. 32/87, in the Sub Court, Patna for removing the encroachments, the High Court was in error in not dismissing the writ petition filed by the Society. In other words, the plea was that since the Society has availed of the alternate remedy, the writ petition should have been dismissed and the High Court should not have exercised the discretionary jurisdiction under Article 226 of the Constitution of India. Counsel pressed into service the decision of this Court in Jai Singh vs. Union of India and others, AIR 1977 sc 898, to substantiate the plea. We are of the view that Jai Singh's case is clearly distinguishable.

In that case, the appellant before this court prayed for quashing the demand made against him in respect of royalty.

His case was that gypsum ore was less than the p[articular percentage of purity. Whereas according to the revenue, it was not so established and the substance contained a higher percentage of purity. The plea of the appellant was not accepted by the statutory authorities. The writ petition filed by the appellant in the High Court was dismissed on the ground that it fact and the appellant had an alternate remedy. Against the dismissal of the writ petition the appellant filed an appeal in this Court on a certificate granted by the High Court. He also filed a suit wherein the same question was agitated which was the subject matter of the writ petition. In these circumstances, this Court held that the appellant, in the said case, cannot pursue two parallel remedies in respect of the same matter at the same time. We are also of the view that ordinarily the above rule should prevail. There may be extraordinarily situations or circumstances, which may even warrant, a different approach, where the orders passed by the Court are sought to be violated or thwarted with impunity. The Court cannot be silent spectator in such extra- ordinary situations. The position obtaining herein is rather a different and unusual one. The writ petition was filed by the Society (CWJC No.

6373/88), praying for a direction to the respondents to give effect to the directions contained in the earlier judgment of this Court in CWJC No. 3241/82, dated 23.9.1984, and for other consequential or incidental reliefs. So, it cannot be said that in the instant case, the relief sought was to remove the encroachments from the lands or to remove the unauthorized constructions, which are covered by the encroachment case or the title suit. They may be incidental or consequential to the main relief, in giving effect to the earlier directions or orders of Court. But such relief cannot be withheld or denied. In the Judgment dated 23.9.1984, rendered in CWJC No.3241/82, the Court categorically held that non-passing of the award will not nullify the acquisition, the validity of the acquisition was upheld by the High Court and the Supreme Court, and the encroachments or the unauthorized structures were put up by persons in the property at their own risk, and it was further observed that once possession of the land was taken by the Government the fact that the owner of the land entered upon the land, will not obliterate the consequences of vesting, and allowed the writ petition filed by the Society, and quashed the steps taken for derequisitioning of the land requested by the Authority and issued a writ of mandamus directing the Collector of Patna to prepare the award as expeditiously as possible. The plea of the respondents that the project itself was rendered an impossibility on account of excessive encroachments or unauthorized constructions, was repelled, and relying upon the decision of this Court in Balwant Narayan Bhagde vs. M.D.Bhagwat and others, AIR 1975 SC 1767, it was held that once possession of the land was taken by the Government, even if the owner of the land entered upon the land and resumed possession of it the very next moment, such act does not have the effect of obliterating the consequences of vesting. In allowing the prayer of the Society in CWJC No. 6373/88, by a common judgment dated 30.7.1993, the High Court was only implementing its earlier order and directions in CWJC No. 3241/82 which it was bound to do in the circumstance. We hold that the directions and orders contained in CWJC No. 3241/82, which were not interfered with, by this Court in special leave petition, by order dated 21.3.1984, should be fully and effectively implemented. We hold so.

11. Mr. Sanyal, senior counsel feebly raised the plea that the Government authorities did not take possession of a small portion of the land, about 7 acres; and there is no award relating thereto, and the proceedings regarding that portion of the land, had lapsed. This plea is without substance. In our view the proceedings dated 31.7.1984 is in substance an award passed in pursuance of the directions given by this Court in CWJC No. 3421/82. The entire land, for which request for acquisition was made by the Authority, was delivered over to the Authority.Possession was taken of the entire land and the plea that possession of a small portion of the land was not taken is against the record (see AIR 1974 SC 1886 at 1889).

12. All the contentions urged on behalf of the appellants fail. The appeals are wholly without merit and we dismiss them with costs. It is distressing to note that the land acquisition proceeding which was initiated for a very laudable purpose, more than 37 years ago, is not yet complete. At one point of time, it was brought to the notice of the Court that even the files relating to the acquisition of land are not traceable. The High Court was constrained to hold, on an earlier occasion, that non-traceability of the files must be attributed to deliberate destruction of the relevant files by the "interested parties",and "but for the intervention of influential persons", the Government would not have stayed the entire proceedings as it did on 3.5.1965. We are constrained to observe that the hands of the interested parties seem to be still active, and the intervention of such influential persons has not disappeared (AIR 1974 SC 1888). A laudable and noble cause is delayed for more than 3 decades, under one pretext or the other. We express our anguish in the entire episode. We, therefore , direct the State of Bihar, its officials, the authorities and other persons concerned who are seized of the subject matter of the instant land acquisition proceedings, to complete the proceedings in the quickest possible time. We further direct the appellants in these appeals to pay costs of Rs. 10,000/- in each of these appeals, towards the Advocate's fees for the Society.

13. The appeals are dismissed with costs as aforesaid.

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