IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1271 of 2009 DINESH CHANDRA THAKUR S/O SRI YOGENDRA THAKUR VILL.- KANHAWA, P.S.- PARIHAR, DISTT.- SITAMARHI … Petitioner- Appellant Versus 1. THE STATE OF BIHAR THROUGH SECRETARY, REVENUE AND LAND REFORMS DEPARTMENT, BIHAR, PATNA 2. THE PRINCIPAL SECRETARY, REVENUE AND LAND REFORMS DEPARTMENT, GOVT. OF BIHAR, PATNA 3. THE COLLECTOR, SITAMARHI, P.S. & DISTT.- SITAMARHI 4. THE DISTRICT LAND ACQUISITION OFFICER, SITAMARHI 5. THE COMMANDANT, S.S.B. CAMP, AT SHANTINAGAR, D.T.I CAMPUS DUMRA, P.S. DUMRA DISTT.- SITAMARHI … Respondents-Respondents For the Appellant : Mr. Durganand Jha, Advocate For the State : Mr. Lalit Kishore, A.A.G-3 ----------- PRESENT : Hon'ble the Chief Justice Hon'ble Mr. Justice Mihir Kumar Jha O R D E R ( 11 /05/2010) As per Mihir Kumar Jha, J. Heard Mr. Durganand Jha, learned counsel for the appellant and the learned counsel for the State. 2. In this intra-Court appeal the appellant- writ petitioner has assailed the order of the learned Single Judge dated 28.8.2009 passed in C.W.J.C. No. 10995 of 2009, disposing of the writ application of the appellant- writ petitioner, as with regard to his prayer for his release of his land already acquired and taken possession thereof by the Respondents 2 under the provisions of Land Acquisition Act, hereinafter referred to as the Act, with an observation that he may take resort to any other remedial measure under law. 3. Mr. Durganand Jha, learned counsel for the appellant-writ petitioner, while assailing the aforementioned order has submitted that the learned Single Judge's refusal to interfere in the subject matter of writ petition was wholly unjustified inasmuch as once it was established by the appellant writ petitioner, the owner of the land, that his land was acquired and taken over possession by the Respondents without complying the mandatory provisions of the Act, he ought to have been not relegated to any other remedy because for statutory violation of the mandatory provisions of the Act, the remedy under Articles 226 was the most efficacious remedy. 4. In order to appreciate the aforesaid submissions, it would be necessary to take stock of the relevant facts in brief as stated in the writ petition. The appellant- writ petitioner claims to be the owner of the land bearing Khata No. 360, Kheshra No. 2549, 2550 and 2543 measuring an area of 1.86½ acres situated in village Kanhwa , P.S. Parihar in the District of Sitamarhi and he was aggrieved by an action of the State of Bihar in acquiring his aforesaid land for establishing the head office of 9th Battalion Seema Suraksha Bal (SSB) armed force of the Ministry of 3 Home of the Government of India without complying the mandatory provisions for acquisition under the Act. Learned Counsel in this context explained that the notice under Section 4 was never served personally on the appellant writ petitioner nor he was afforded an opportunity to file his objection under Section 5A of the Act and yet he was sought to be dispossessed on the basis of more paper possession handed over by the Land Acquisition Officer to the authorities of SSB officials even without paying compensation to him in terms of Section 11 of the Act. In this context he has also assailed the order of the District Land Acquisition Officer dated 25.5.2009 rejecting the prayer of the appellant writ petitioner for both releasing his land and/or making payment of compensation of the Act to him on the ground of payment of such compensation to another person and rejection of a similar prayer in C.W.J.C. No. 1480 of 2007. 5. From the counter affidavit of the Respondents filed in the connected writ petition it however becomes manifest that a land acquisition proceeding was initiated for acquiring 2.50 acres of land in village Kanhwa for establishing the headquarters of SSB functioning under the Ministry of Home Affairs, Govt. of India, for which a notification under section 4 of the Act was issued on 12.6.2006 and after its being published in the district gazette, a copy of the said notice under 4 section 4 of the Act was personally served on Yogendra Thakur the father of the appellant writ petitioner on 20.10.2006 as would be evident from the counter affidavit of Annexure „A‟ filed in C.W.J.C.No. 1480/2007, the earlier writ petition filed by the father of the appellant- writ petitioner. It would also appear that such acquisition was made under the emergent provisions by invoking section 17 of the Act and a declaration under Section 6 of the Act made on 20.6.2006 was also in respect of the aforesaid land which was published in the district gazette as well as in the local newspaper local daily „Hindustan‟ on 20.6.2006. It also appears that the notice under section 9 of the Act dated 18.12.2006 was also served on the father of the appellant writ petitioner whereafter his father had filed an application on 8.1.2007 before the District Land Acquisition Officer raising certain objection to the said acquisition as is apparent from Annexure 2 to his writ petition, C.W.J.C.No. 1480/2007. 6. The father of appellant- writ petitioner namely Yogendra Thakur in fact on 5.2.2007 had filed his earlier writ petition, C.W.J.C.No. 1480/2007, wherein his prayer was to the following effect: “ i) For issuance of a writ in the nature of Mandamus directing and commanding the respondents not to acquire the land bearing Khata no. 360, Khesra No. 2549, 2550 and 2543 covering an area measuring 1.865 acres of land situated at village Kanhera, P.S. Parihar, District Sitamarhi for the purpose of establishing a SSB camp. 5 ii) For issuance of a writ in the nature of certiorari for quashing the notice dated 18.12.2006 in Case No. 08/05-06 issued in Form 12 under Clauses 3 and 4 of Section 9 of the Land Acquisition Act 1 of 1894 under the signature of the Collector, Sitamarhi as contained in Annexure 1 to this writ petition inviting the petitioner to state the nature of such interest in the land and the amount and particulars of any claim he may wish to prefer and his objections, if any to the measurement made under section 8 of the Act. iii) For issuance of an appropriate writ/ writs, direction/ directions, order/ orders holding the aforesaid case No. 8/05- 06 pending before the Collector, Sitamarhi with respect to the land mentioned in Clause (i) to the instant petition to be null and void for non observance of the mandatory provisions of the law laid down under the Land Acquisition Act, 1894.” 7. In the said writ petition a counter affidavit was filed by the respondents, a copy whereof was served on the counsel for the father of appellant- writ petitioner on 10.4.2007 in which a specific stand was taken that the grievance raised in the writ petition that there was no opportunity given to the land holder writ petitioner i.e. father of the appellant to file his objection under section 5A of the Act was wholly untenable, inasmuch as the land was sought to be acquired under Section 17 of the Act by way of emergent proceeding. The respondent, in fact had also by producing the records of the land acquisition particularly the notice under section 4 duly 6 served on the father of the appellant writ petitioner had sought to repel any and every challenge to the land acquisition proceeding made by the father of appellant- writ petitioner in that writ application. 8. It has to be noted that neither the father of appellant- writ petitioner had chosen to file any reply to the aforesaid counter affidavit filed in C.W.J.C.No. 1480/2007 and on 14.1.2009 the counsel for the father of appellant- writ petitioner after some arguments had sought permission to withdraw his writ application which was accordingly dismissed as withdrawn. 9. The father of the appellant- writ petitioner having thus failed to get any relief in his writ petition C.W.J.C. No. 1480/2007 as with regard to his challenge to the acquisition including the notice under section 4, declaration under section 6 and the notice under section 9 of the Act in respect of the land acquisition proceeding in question now the son appellant writ petitioner inherited the legacy of litigation for the same cause of action and he had made a fresh attempt initially by giving a legal notice to the Commandant of SSB at Sitamarhi on 25/26.2.2009 wherein on the basis of a judgment in Partition Suit No. 103/1973 dated 26.2.1974 and the decree dated 12.3.1974 had gone to claim that the notice under section 4 of the Act was actually served on his father Yogendra Thakur and not on him though he was the real owner of the land and as such, the 7 entire process of acquisition and taking over possession of his land was wholly illegal. The said legal notice of the petitioner sent through one Sri Mohan Kumar Singh Advocate was in fact aimed for payment of enhanced compensation to him as also for maintaining status quo in respect of the land in question. It also appears that the appellant- writ petitioner simultaneously had also filed an application to the Collector of Sitamarhi District that illegal possession handed over to the SSB should be revoked and the land should be re-conveyed to him. 10. The legal notice sent by the appellant- writ petitioner to the Commandant of SSB was replied by the Commandant on 2.3.2009 intimating that after completing the procedure of acquisition the District Land Acquisition Officer, Sitamarhi on 9.7.2008 had handed over the possession for which cost of the land had already been deposited earlier by the defence establishment of Government of India in the Ministry of Home affairs to the Government of Bihar through the District Land Acquisition Officer. The reply of the legal notice of the appellant- writ petitioner, therefore, had only contained an advice that any grievance with regard to payment of compensation should be settled with the authorities of the State of Bihar. It would not be necessary to refer to the clarification of the appellant- writ petitioner dated 7.3.2009 to the aforementioned reply to his legal notice by his Advocate to the Commandant of SSB, 8 Sitamarhi but then it relevant to mention here that application of the appellant- writ petitioner before the Collector of Sitamarhi District for release of the land and also questioning the entire land acquisition proceedings was disposed of by an order dated 25.5.2009 by the District Land Acquisition Officer recording therein that the land was acquired after completing the prescribed procedure under the Act and handing over the possession to the SSB on 9.7.2008. 11. It is this order dated 25.5.2009 which was assailed by the petitioner by filing the connected writ application, C.W.J.C.No. 10995/2009 on 27.8.2009 wherein now the following prayers were made by the writ petitioner, who is admittedly son of Yogendra Thakur, the earlier writ petitioner of C.W.J.C.No. 1480/2007: “i) Issuance of a writ in the nature of certiorari for quashing the order dated 25.5.2009 passed by the District Land Acquisition Officer, Sitamarhi in Record no. 8/2005-06 whereby and whereunder the application/ objection of petitioner has been rejected without appreciating the proper facts of the case and without appreciating the real fact that at no stage of proceeding any notice was ever issued to petitioner nor any notice was ever issued to petitioner nor any opportunity of hearing was ever afforded to him at any stage of the proceeding hearing was ever issued to petitioner nor any opportunity of hearing was ever afforded to him at any stage of the proceeding. 9 ii) Issuance of a consequential writ in the nature of mandamus directing and commanding the respondents not to acquire the land bearing Khata no. 360, Khesra no. 2549, 2550, 2543 measuring a total area of 1.86 ½ acres situated in village Kanhwa P.S. Parihar, District Sitamarhi for the purposes of establishing SSB Camp as those lands belongs to petitioner and at no stage any proceeding under Bihar Land Acquisition Act was started against the petitioner nor at any stage of the proceeding any notice was issued to petitioner nor any opportunity of being heard was ever allowed to petitioner. iii) Issuance of an appropriate declaration that in case 8/2005-06 with respect to the land bearing Khata no. 360 Kheshra No. 2559 and 2558 and 2543 and measuring an total area 1.86 ½ acres 01 land situated in village Kanhwa is null and void for non observation of the mandatory provision of the land laid down under the Bihar Land Acquisition Act because the lands in question belongs to petitioner and no proceeding was ever initiated against him. iv) Issuance of an appropriate direction directing and commanding the respondent not to interfere in the peaceful possession of the petitioner over the lands in question which land have been provided to the petitioner vide judgment and decree dated 26.2.1974 passed by Sub Judge Sitamarhi in Title Suit No. 103/73 and since then the petitioner has been paying the rent the Government by mulating the land under separate Jamabandi.” 10 12. The said writ petition has been disposed of by the learned Single Judge by holding that the prayer for release/ withdrawal of land from the proceedings was wholly belated and in fact not only possession of such land had already been taken but its compensation by payment of award had been also made to the person interested in the land and therefore, the appellant- writ petitioner may take recourse to any remedial measure under the law. 13. Mr. Durganand Jha, learned counsel appearing on behalf of the appellant- writ petitioner would submit that there can be no dispute that the land in question on account of judgment and decree of the civil court was that of the appellant- writ petitioner and therefore, the authorities could not have acquired the land by giving notice to some other person or even making payment of compensation to some other person. He has, accordingly, submitted that the observation made by the learned Single Judge for taking recourse under law in effect would mean that all the prayers of the petitioners in the writ application as with regard to challenge to the land acquisition proceeding has been rejected. 14. In the opinion of this Court the learned Single Judge has rightly refused to interfere in the concluded land acquisition proceedings, inasmuch as the prayer of release of land after its being acquired is impermissible. Section 48 of the Land Acquisition Act clearly lays down 11 that the Government can only withdraw from acquisition of such land of which possession had not been taken. In the present case when the possession of the land in question had already been handed over to SSB on 9.7.2008 as is recorded in the impugned order of the District Land Acquisition Officer dated 25.5.2009 rejecting the prayer of appellant- writ petitioner to release his land, there was no question for exercise of such power in view of the statutory embargo under section 48(1) of the Act. 15. The other grievance with regard to procedural infirmities either in respect of notice under section 4, declaration under section 6 and the notice under section 9 it has to be held that the writ application was wholly belated, inasmuch as the same was filed on 27.8.2009 at a point of time when not only the land had stood acquired and vested in the State of Bihar in terms of Section 4 notification dated 12.6.2006 and section 6 declaration dated 20.6.2006 as also the notice under section 9 dated 20.12.2006 in a long drawn period of more than three years from the date of Sections 4, 6 and 9 of the Act and in fact after more than one year of even handing over of possession. Such delay by itself was/is fatal for maintaining the writ application and the inordinate delay in filing of the writ application by itself was sufficient for dismissing the writ application as was held in the case of Keshav Pal & ors. vs. the State of Bihar & ors., reported in AIR 1985 Pat. 70. 12 16. Coming to the last grievance of the appellant- writ petitioner that the compensation of the land in question, allegedly belonging to him in view of the judgment and decree of partition suit is also wholly misconceived. As per revenue record it was the father of the appellant- writ petitioner, namely, Sri Yogendra Thakur, who was served with the notice under section 4 and also notice under section 9 of the Act, whereafter he had also filed his reply before the Collector under the Act. It is this person who as per land revenue records was treated to be person interested in the land and was paid the amount of award. It has to be noted that though the name of the father, namely, Yogendra Thakur, has not been mentioned in the order of the District Land Acquisition Officer dated 25.5.2009 but then from the reading thereof it becomes clear that the compensation for the land claimed by the petitioner has already been paid to some person. Thus, the question now which would emerge is only an apportionment of compensation for which there is a clear provision under section 30 of the Act which reads as follows: “ 30. Dispute as to apportionment- When the amount of compensation has been settled under section 11, if any dispute arises as to apportionment of some or any part thereof or as to the persons to whom the same or any part thereof is payable, the Collector may refer such dispute to the decision of the Court.” 13 17. Thus, in terms of the aforementioned statutory provision the order of the learned Single Judge cannot be faulted wherein he has given liberty to the appellant- writ petitioner to take resort to any remedial measure under law. The only remedy which now remains for the petitioner is to claim compensation and since the amount of compensation has already been paid to the person interested in the land after service of notice under sections 4 and 9 of the Act on such person as is apparent from the counter affidavit containing the proof of such service of notice on Yogendra Thakur, the father of the appellant- writ petitioner, no error can be said to have been committed by the learned Single Judge who in fact was quite considerate in making such observation instead of dismissing the writ application on the ground of delay as also existence of alternative remedy as with regard to apportionment of compensation. 18. That being so, we find no merit in this appeal and the same is, accordingly, dismissed in the light of the observations made by the learned Single Judge and also reiterated by us in this order. There would be, however, no order as to costs. I agree. (Dipak Misra,C.J.) (Mihir Kumar Jha,J.) Patna High Court Dated, the 11th May, 2010 NAFR/Surendra