CWP No.11484 of 2003 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. CWP No.11484 of 2003 Date of decision: 16.12.2008 Birpal ....Petitioner. vs. State of Haryana and another ..Respondents CORAM: HON'BLE MR.JUSTICE J.S.KHEHAR. HON'BLE MS.JUSTICE NIRMALJIT KAUR. --- Present: Mr.Rajinder Chhokar, Advocate, for the petitioner. Mr.Surinder K.Bishnoi, Deputy Advocate General, Haryana , for the respondents. -- J.S.KHEHAR,J. (Oral) The present controversy relates to 7 kanals 11 marlas of land which was acquired by the State Government. Insofar as, the acquisition proceedings are concerned, they are stated to have commenced in the year 1981. Consequent upon the issuance of a notification under the provisions of the Land Acquisition Act, 1894, Hukam Singh (father of the petitioner herein) filed objections. The objections filed by Hukam Singh have been placed on the record of the joint written statement filed on behalf of the respondents as Annexure R1. The fact that Hukam Singh had himself engaged counsel to file the aforesaid objections, is apparent from the power of attorney, appended to the said objections, which clearly notices that objections under section 5 of the Land Acquisition Act, 1894, were filed by Hukam Singh through his counsel. Yet again when notices were issued by CWP No.11484 of 2003 2 the State Government for taking possession of the land in question, a notice was expressly issued on 6.12.1982 to Hukam Singh, a copy thereof has been on the record of this case as Annexure R3. Annexure R3 substantiates that the left thumb impression of Hukam Singh was obtained at the time of serving the aforesaid notice on him. Hukam Singh filed objections thereto on 8.2.1983 by engaging counsel. The power of attorney executed by Hukam Singh to engage counsel for the purpose of filing aforesaid objections has also been attached as Annexure R-4 ( i.e., the objections filed by Hukam Singh) along with his objections. It is, therefore, apparent that all along during the course of acquisition proceedings, Hukam Singh was aware of the notification issued by the State Government under the provisions of the Land Acquisition Act, 1894 and he continued to raise legal pleas available to him in order to retain possession of the land in question. Although it is the case of the petitioner before this Court, that a house stands constructed over the land in question, yet it is the case of the respondents, as is apparent from the pleadings contained in paragraph 2 of the preliminary submissions (recorded in the joint written statement filed on behalf of respondent Nos. 1 and 2) that there was no construction over the land, and that it was lying vacant. This assertion made by the respondents in the written statement filed in this case finds support from the pleas raised by Hukam Singh in the objections filed by him (Annexure R1) wherein he acknowledges that the land in question was surrounded by four walls on which he had spent lacs of rupees. In the objections, it is not the case of Hukam Singh that he has raised a house on the land in question. Having acquired the land, it is the case of the respondents, that possession thereof, was taken; and not only was the land mutated in favour CWP No.11484 of 2003 3 of the State Government, but after possession thereof, was taken by the State Government, the acquired land was allotted to landless “harijans”. It is also the case of the respondents, that the allottees i.e. the landless “harijans” were granted possession of the plots assigned to them. In spite of the allotment, in spite of the mutation whereby the land in question was recorded in the name of the State Government, in spite of the allotment by the State Government of the aforesaid land in the name of landless “harijans”, in spite of the fact that possession was eventually vested in the said allottees; effective utilisation of the land by the allottees i.e., the landless “harijans” could not materialise probably because they had no means to raise construction thereon. It this unfortunate circumstance of the allottees, which was misused by the petitioner. He retained possession of the land and made residential construction thereon. The proceedings now initiated at the hands of the respondents is to retrieve possession of the acquired land from the petitioner, so as to restore it to the landless “harijans”. The entire effort at the hands of the State Government is sought to be defeated by the petitioner by impugning mutation No.561 dated 4.11.1985 (Annexure P1) by which the acquired land was transferred in the name of the State Government. The following are the submissions raised by the learned counsel for the petitioner to achieve his aim:- The first contention advanced by the learned counsel for the petitioner is, that the petitioner has continuously retained possession of the land in question in spite of its acquisition, and has raised construction thereon. It is, therefore, his submission that on account of the fact that the petitioner is in possession of CWP No.11484 of 2003 4 the land, and has spent a huge amount of money thereon to raise construction, equity, justice and good conscience demand that he should be permitted to retain the possession of the land in question. Secondly, it is the contention of the learned counsel for the petitioner that the petitioner's father Hukam Singh who owned land when the same was acquired did not receive any compensation. There is no question of the respondent-State Government taking the land which was owned by the father of the petitioner without payment of compensation. For this reason also, it is the contention of the learned counsel for the petitioner that the mutation by which the land has been shown as transferred in the name of the State Government should be annulled. The third submission advanced by the learned counsel for the petitioner is, that the State Government has no right, jurisdiction or authority to contest the claim raised by the petitioner, on account of the fact that the land in question has been allotted by the State Government in the name of landless “harijans”. Now, according to the learned counsel for the petitioner, the State Government has no jurisdiction over the property in question, and if anybody is aggrieved with the possession over the land, it is the landless “harijans”. The landless “harijans”, according to the learned counsel for the petitioner have never assailed any action of the petitioner, and as such, the claim raised by the petitioner to continue in CWP No.11484 of 2003 5 possession should be upheld. We have considered the aforesaid submissions advanced by the learned counsel for the petitioner. Our findings on each of the issues advanced by the learned counsel for the petitioner, is being extracted in the succeeding paragraphs hereunder:- It is not possible for us to accept that the land in question should be treated as continuing to vest in the petitioner, merely on account of continuous unauthorised possession and alleged construction on the land. Hukam Singh was admittedly the owner of the land in question (out of whom the the petitioner claims to have inherited his rights). Hukam Singh was aware of the notification issued by the State Government to acquire land under the Land Acquisition Act, 1894. Hukam Singh first raised objections under section 5 of of the Land Acquisition Act,1894, contesting the very proposal of the State Government to acquired the land. Hukam Singh again raised objections under section 9 of the Land Acquisition Act, 1894, at the time when possession thereof was sought to be taken by the State Government. It is, therefore, not possible for us to accept that Hukam Singh was not aware of the acquisition proceedings consequent upon which the land in question was acquired. On the culmination of acquisition proceedings, the land came to be transferred in the name of the State Government by mutation bearing No.561 dated 4.11.1985. We find no justification whatsoever, at the hands of the petitioner to assail the same. The mere fact that the petitioner raised construction over the land in question after being fully aware that the same had already been acquired does not create any equitable right in the petitioner. The petitioner did what he could not have done, he must therefore suffer the consequences thereof. CWP No.11484 of 2003 6 Accordingly, the first contention advanced by the learned counsel for the petitioner is hereby declined. Insofar as, the second contention is concerned, it is inconsequential whether or not the petitioner has taken compensation for the acquired land. As and when the land is acquired, compensation thereof is available with the Land Acquisition Officer and it is upto the landowner to take the same, and in case it is inadequate, to initiate proceedings under section 18 of the Land Acquisition Act, 1894, demanding higher compensation. It is not even the case before us that Hukam Singh ever initiated proceedings under section 18 of the Land Acquisition Act, 1894, by filing a reference. It is clear from the pleadings of the instant writ petition, that out of the land acquired, the land of Hukam Singh's brother , namely, Nathu Singh, was also acquired. Nathu Singh voluntarily and unilaterally accepted compensation thereof. The mere fact that the petitioner's father (and now petitioner) did not go to accept the compensation, cannot negate the proceedings initiated by the State Government under the Land Acquisition Act, 1894. Since the land in question was admittedly acquired by the State government, it was rightly mutated in its favour. The last contention advanced by the learned counsel for the petitioner, is also in our view, totally misconceived. The challenge raised by the petitioner in the instant writ petition is not to the allotment made by the State Government to the landless ' harijans”. The challenge in the instant writ petition is merely to the mutation bearing No. 561 dated 4.11.1985, whereby the land in question was mutated after its acquisition, in the name of the State Government. Insofar as, the challenge is concerned, rights of CWP No.11484 of 2003 7 the landless “harijans” do not arise at all. Their rights came out only after the land was acquired and mutated in favour of the State Government. It is, therefore, not possible for us to accept the instant contention of the learned counsel for the petitioner. It would be unfair to the learned counsel for the petitioner if we do not take into consideration the decision rendered by a Division Bench of this Court, which was relied upon during the course of hearing. In this behalf, reference may be made to the decision rendered in M/s Jai Durga Industries v. State of Haryana and others, 2000(4) RCR(Civil) 697. During the course of hearing, learned counsel for the petitioner invited our attention to the factual position depicted in paragraphs 4 to 7. The aforesaid paragraphs are extracted hereunder:- “ Admittedly, the notification for acquisition of land was issued in December 1984. According to the averments in the written statement the award was announced on September 21,1986. Almost 14 years have elapsed since then. The petitioner is admittedly in possession of the land. It is also not disputed that a compensation of Rs.48,000/- had been assessed. However, learned counsel for the respondents concede that it was not paid to the petitioner. Resultantly, it appears that the respondents did not really need the petitioner's land. Otherwise, it is unthinkable that no body shall take possession (despite announcing the award) for a period of almost 14 years.” “ Still further it is clearly established on the record that the Administrator of the Authority at Gurgaon has no objection if the plot is exempted from acquisition. This recommendation has admittedly not been rejected till now. In fact it has been stated on behalf of the respondents that compensation is respect of even a part of the other land, which is besides the CWP No.11484 of 2003 8 plot of 515 sq. yds, has not yet been paid to the petitioner. Even otherwise, the acquired land in the Sector has been used for residential purposes. The petitioner has undertaken to utilise the plot of 515 sq.yds only for residence. Thus, there would no change from the permitted user of the land.” “ Keeping in view the totality of the circumstances, we find no ground to reject the petitioner;s request for exemption from acquisition. Nor do we find any justification for the prolonged inaction of the authority for such a long time”. “ The cases raises certain issues. Why was the possession of the land not taken despite announcement of the award in the year 1986 ? Why was the money not offered to the petitioner at that time ? Why was the money not deposited in the Court as required under Section 31 of the Act ? We find no answer to these queries on the record. We cannot compliment the respondents for their continued inaction on the petitioner's request and the recommendation of the Administrator for exemption. Delay only encourages mal-practices. The statutory authorities are expected to function efficiently. In the present case, we find there has been a continuing in action. Why ? There is no explanation.” In our considered view, the aforesaid judgment is irrelevant to the present case for a variety of reasons. First the Administrator of the Authority at Gurgaon (in the case relied upon) had recorded his no objection for the return of the plot to the petitioner by way of exemption from acquisition. Insofar as, the present controversy is concerned, the issue of acquisition is not subject matter of any challenge. Secondly, the Court ( in the case relied upon) arrived at the conclusion that the purpose for which the land was acquired no longer subsisted, and that, was the reason why no action was taken for a large number of years. Even this factor does not exist in the CWP No.11484 of 2003 9 present controversy, inasmuch as, immediately after the acquisition of the land, the same was mutated in favour of the State Government, and thereafter transferred in the name of “landless harijans” for whom it was acquired. In view of the above, we find no applicability of the observations recorded by this Court in M/s Jai Durga Industries' case (supra), to the present controversy. Reliance was also placed by the learned counsel for the petitioner on the judgment rendered by a Single Bench of this Court in Parkash Singh v. The State of Punjab and another, 1983 P.L.J.259. Having placed reliance on the aforesaid judgment, learned counsel for the petitioner expressly invited our attention to the following observations recorded therein:- “.....The learned counsel, however, concedes that possession of the land of the petitioner has not been taken in pursuance of the said award of the Land Acquisition Collector and the petitioner still continues to be in possession of his property. In the face of this admitted position, the land in question obviously has not vested in the Trust and as per the terms of section 48 itself till the possession of the land sought to be acquired is taken, the Government is at full liberty to withdraw or abandon the acquisition proceedings.....”. The factual position, as has been noticed in the extracted portion of the judgment , which was the basis of the determination rendered by the learned Single Judge, in our view, is irrelevant to the present controversy. In the facts and circumstances of the present case, as has been noticed in the foregoing paragraph, not only was the acquired land taken by the State Government, it has been put to effective utilisation by way of allotment in favour of the landless “harijans”, it therefore cannot be said that in the CWP No.11484 of 2003 10 present case the land has not yet vested in the State Government. Thus viewed, even this judgment is irrelevant for the present controversy. Reliance at the hands of the learned counsel for the petitioner was also placed on a decision rendered by a Division Bench of Allahabad High Court in Sahkari Kraya Vikraya Samiti Ltd., v. Ram Kumar and others. AIR 1975 Allahabad 276. While relying upon the aforesaid decision rendered by the Allahabad High Court, learned counsel for the petitioner invited our attention to the following determination recorded therein in paragraph 10 thereof:- “.....One Kunjilal who had withdrawn the compensation in respect of the land in dispute, had nothing to do with it. The petitioners apprehended that the respondents were going to dispossess them from the land in dispute without deciding their objections. They accordingly filed the writ on 13-3-73 and prayed that the present appellants be restrained from taking possession of the land in dispute. In our opinion the petitioners could come to this Court only when they came to know about the land acquisition proceedings and the intention of the respondents to dispossess them from the land in dispute in pursuance of an invalid notification. It cannot be said that the petitioners had been guilty of laches even after they came to know either about the land acquisition proceedings or about the threat extended by the respondents to dispossess them from the land in dispute. We are accordingly not satisfied that the present petition deserves to be rejected merely on the ground that a notification issued in the year 1963 is being challenged by a petition filed in the year 1973.” It is apparent from the extracted portion, referred to hereinabove, that the acquisition of the land was challenged at the hands of the owner thereof, on account of alleged invalid notification of acquisition. Insofar as, the present CWP No.11484 of 2003 11 controversy is concerned, it is not the case of the petitioner that the notifications issued by the State Government under the provisions of the Land Acquisition Act, 1894, so as to acquire the petitioner's land suffered from any infirmity. In fact, the acquisition proceedings itself are not the subject matter of challenge in the instant writ petition. Accordingly, we find no merit in the claim raised by the petitioner on the basis of the decision rendered in Sahkari Kraya Vikraya Samiti's case (supra). Last of all, reliance was placed by the learned counsel for the petition on a decision rendered by the Bombay High Court in Sitaram Shivchandrai Garoda and another v. State of Maharashtra and others, 1995 LACC 428, wherefrom, learned counsel for the petitioner relied upon the observations recorded in paragraph 15 thereof. Paragraph 15 of the aforesaid judgment is being extracted hereunder:- “ In this matter we have already come to the conclusion that the petitioners were in possession and even after obtaining symbolical possession on 17-10-1986 continued to be in possession even today. Therefore, we set aside the acquisition proceedings. Respondent No.2 is also directed to hand over symbolical possession which he has received from respondent No.3 to the present petitioners. Acquisition notice under section 6 dated 15th June 1981 (Exhibit E to the petition) as also the award dated 23rd September 1986 passed by respondent No.2 is set aside”. It is apparent from the factual position noticed in the foregoing paragraph that the facts and circumstances of the present case are clearly distinguishable from the factual position referred to hereinabove. We, therefore, find no merit in the claim raised by the petitioner, so as to impugn the mutation in question. At the risk of repetition, it needs to be noticed that CWP No.11484 of 2003 12 through the instant writ petition it is not the acquisition proceedings, which are subject matter of challenge, it is only the mutation bearing No.561 dated 4.11.1985 (Annexure P1) which is subject matter of challenge. We, therefore, find no merit in the instant claim of the petitioner as well. For the reasons recorded hereinabove, we find no merit in the instant writ petition and the same is accordingly dismissed. ( J.S.Khehar) Judge (Nirmaljit Kaur) Judge December 16, 2008 rk