CWP No. 3772 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No.3772 of 2010 Date of decision 4.3.2010 Jain School Society ... Petitioner Versus State of Haryana and another ... Respondents. CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. M.S.Jain, Sr. Advocate with Mr. N.K.Jain and Mr. Adarsh Jain ,Advocate for the petitioner 1.To be referred to the Reporter or not ? 2.Whether the judgement should be reported in the Digest ? M.M.KUMAR, J. The petitioner which is a society, has approached this Court with a prayer for issuance of direction to the respondents to restore the possession of agricultural land measuring 3 bighas 18 biswas comprised in khasra nos. 3579/1, 3580/1, 3581 and 3584/1 of Taraf Rejputan (amounting to 3930 square yards) situated in the revenue estate of Panipat in the State of Haryana. According to the averments made by the petitioner, notification under Section 4 read with Section 17 of the Land Acquisition Act, 1894 (for brevity 'the Act') was issued by the respondent-State on 29.10.1974. The respondent- State dispensed with the enquiry contemplated by Section 5A of the Act refusing to entertain any objection by the land-owner on 22/28.12.1976 (P.2) and declaration was made under Section 6 of the Act. The land was sought to be acquired for a public company namely Handloom Corporation for construction of a building and the Sub Divisional Officer, Panipat was authorised to act as Land Acquisition Collector. Accordingly CWP No. 3772 of 2010 2 award was announced on 30.9.1977. It is claimed that no amount of compensation was paid to the petitioner- society by the Land Acquisition Collector. The petitioner sought enhancement of the compensation by filing reference under Section 18 of the Act. The Reference Court enhanced the compensation to Rs. 25/- per square yard on 18.11.1981. The amount of compensation was further enhanced on 9.10.1987 by this Court. It has also been stated by the petitioner that CWP No. 1828 of 1999 was filed by the petitioner on 2.2.1999. It came up for consideration before a Division Bench of this Court which was allowed on 21.3.2001. Against the aforesaid order Haryana State Handloom and Handicraft Corporation filed SLP in Hon'ble the Supreme Court, which was granted and C.A.No.2744 of 2002 was decided on 29.10.2003. Hon'ble the Supreme Court has held that there was delay of 22 years in approaching the High Court which is wholly unexplained and that the petitioner had filed reference under Section 18 of the Act as well as appeal to the High Court for enhancement of compensation by that time. The excuse that they had been waiting for the land to be used for the purpose for which it was acquired was wholly unsustainable. The other argument that some other party had challenged the acquisition and they were waiting for the finalization of proceedings in that case has also not been accepted. The allegation of fraud has been rejected by Hon'ble the Supreme Court in para 7 of its judgement. Placing reliance on the view taken by Hon'ble the Supreme Court in the case of Northern Indian Glass Industries v. Jaswant Singh(2003) 2 SCC 335, Hon'ble the Supreme Court has held that the petition must fail on the ground of delay of 22 years particularly when they had applied for enhancement of compensation at the forum of Addl. District CWP No. 3772 of 2010 3 Judge as well as of the High Court. The petitioner was also saddled with costs of Rs. 5,000/-. Mr. M.S.Jain, learned Senior Counsel for the petitioner, has placed reliance on Standing Order 28 and argued that if the agricultural land has been acquired for a public purpose and is no longer required for such purpose then the disposal of such land is guided by the general consideration indicated in paras 493-95 of the Land Administration Manual. The case of the petitioner as projected by Mr. Jain is that the land has remained untuilised and it shall be given back to the petitioner by virtue of Standing Order 28. In that regard he has placed reliance on a judgement of Hon'ble the Supreme Court rendered in the case of State of Haryana and another v. Suraj and others (2004) 12 SCC 538 (P.11). After hearing learned counsel we are of the considered view that this petition is a complete mis-use of the process of the Court. The rights of the parties stand concluded by the judgement of the Supreme Court which has attained finality. The argument which is sought to be raised before us was surely available to the petitioner when CA No.2744 of 2002 was decided on 29.10.2003. If the land has not been utilized till date and the petitioner becomes entitled to restoration of possession then there was every possibility of raising such an argument before their Lordships of Hon'ble the Supreme Court. In their bid to explain 22 years delay before Hon'ble the Supreme Court one of the explanation infact rendered and rejected was that the petitioner was waiting for the land to be used for the purpose for which it was acquired. The argument is similar to the one sought to be raised before us all over again. Having raised such an argument in respect of acquisition made in 1976 it would not be open to the petitioner again to CWP No. 3772 of 2010 4 raise a similar argument before us. It would be vexatious to entertain such an argument. Moreover, once the land is acquired in accordance with the procedure established by law, award has been announced and the possession taken then there is no provision in the Act to denotify the land and restore back possession to the petitioner. The provisions of Section 48 of the Act would be deemed to have exhausted itself and no power to restore the possession of the land would survive in the respondent- State. The aforesaid principles have been laid down by the Hon'ble Supreme Court in the case of State of M.P. v. Vishnu Prasad Sharma, AIR 1966 SC 1593. The view of Hon’ble the Supreme Court is evident from the concluding portion of para 19 of the judgment, which reads thus:- “19. …… This power can be exercised even after the Collector has made the award under S. 11 but before he takes possession under S. 15. (S.16.?) Section 48 (2) provides for compensation in such a case. The argument that S. 48 (1) is the only method in which the Government can withdraw from the acquisition has, therefore, no force because the Government can always cancel the notifications under Ss. 4 and 6 by virtue of its power under S. 21 of the General Clauses Act and this power can be exercised before the Government directs the Collector to take action under S. 7. Section 48 (1) is a special provision for those cases where proceedings for acquisition have gone beyond the stage of the issue of notice under S. 9 (1) and it provides for payment of compensation under S. 48 (2) read with S. 48 (3). We cannot, therefore, accept the argument that without an order under Section 48 (1) the notification under S. 4 must remain outstanding. It can be cancelled at any time by Government CWP No. 3772 of 2010 5 under S. 21 of the General Clauses Act and what S. 48 (1) shows is that once Government has taken possession it cannot withdraw from the acquisition. Before that it may cancel the notifications under Ss. 4 and 6 or it may withdraw from the acquisition under S. 48 (1). ……” (emphasis added) The aforementioned proposition also came up for consideration of Hon’ble the Supreme Court in the case of Lt. Governor of H.P. v. Sri Avinash Sharma, AIR 1970 SC 1576, where placing reliance on the view taken in Vishnu Prasad Sharma’s case (supra), the same view has been reiterated. Interpreting the observations made in para 19, their Lordships’ clarified as under:- “But these observations do not assist the case of the appellant. It is clearly implicit in the observations that after possession has been taken pursuant to a notification under S. 17 (1) the land is vested in the Government, and the notification cannot be cancelled under S. 21 of the General Clauses Act, nor can the notification be withdrawn in exercise of the powers under S. 48 of the Land Acquisition Act. Any other view would enable the State Government to circumvent the specific provision by relying upon a general power. When possession of the land is taken under S. 17 (1), the land vests in the Government. There is no provision by which land statutorily vested in the Government reverts to the original owner by mere cancellation of the notification.” (emphasis added) Similarly, in the case of Bangalore Development Authority v. R. Hanumaiah, (2005) 12 SCC 508, their Lordships’ while noticing the earlier judgments rendered in the cases of Avinash Sharma (supra); Pratap v. State of Rajasthan, (1996) 3 SCC 1; Mohan Singh v. International Airport Authority of India, (1997) 9 SCC 132; and Printers (Mysore) Ltd. v. M.A. Rasheed, (2004) 4 SCC 460, has held as under:- “ 45. Again in Pratap v. State of Rajasthan [(1996) 3 CWP No. 3772 of 2010 6 SCC 1] it was reiterated that once the possession is taken and the land vests in the Government then the Government cannot withdraw from acquisition under Section 48 of the Land Acquisition Act. Same view was reiterated by this Court in Mohan Singh v. International Airport Authority of India [(1997) 9 SCC 132, and in Printers (Mysore) Ltd. v. M.A. Rasheed [(2004) 4 SCC 460]. 46. The possession of the land in question was taken in the year 1966 after the passing of the award by the Land Acquisition Officer. Thereafter, the land vested in the Government which was then transferred to CITB, predecessor- in-interest of the appellant. After the vesting of the land and taking possession thereof, the notification for acquiring the land could not be withdrawn or cancelled in exercise of powers under Section 48 of the Land Acquisition Act. Power under Section 21 of the General Clauses Act cannot be exercised after vesting of the land statutorily in the State Government.” As a sequel to the above discussion, we do not find any sustainable ground to admit the petition. It is vexatious piece of litigation. Infact the process of the Court has been mis-used and the matter which has been concluded upto Hon'ble the Supreme Court has been sought to be re-opened by raising a similar ground which cannot be availed all over again in this petition. Accordingly, the writ petition fails and the same is dismissed with costs of Rs. 20,000/-. The costs be deposited with the Member Secretary, Punjab and Haryana Mediation and Conciliation Centre, High Court, Chandigarh within a month. A copy of this order be sent to the Member Secretary, Punjab and Haryana Mediation and Conciliation Centre, High Court, Chandigarh CWP No. 3772 of 2010 7 for information. If the costs are not deposited within one month then the case be put up for further orders. (M.M.Kumar) Judge (Jitendra Chauhan) 4.3.2010 Judge okg