IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8487 of 2003 1. MOHIT NARAIN JHA 2. Raj Narain Jha 3. Mahim Narain Jha 4. Bhag Narain Jha All above sons of Late Ram Kishun Jha, resident of village- Saidnagar, P.O. & P.S.Laheriasarai, District & Town- Darbhanga ..........Petitioners Versus 1. THE STATE OF BIHAR 2. The Commissioner-cum-Secretary, Revenue and Land Reforms Department, Govt. of Bihar, Patna 3. The Deputy Secretary, Revenue and Land Reforms Department, Govt. of Bihar, Patna 4. The Bihar State Housing Board, Patna through its Secretary. 5. The Managing Director, Bihar State Housing Board, Patna-1 6. The Deputy Secretary, Bihar State Housing Board, Patna-1. 7. The Appellate Authority, Bihar State Housing Board, patna-1. 8. The Competent Authority, Bihar State Housing Bord, Patna-1. 9. The Bihar State Housing Board through its Executive Engineer, Darbhanga Division, Darbhanga. 10.The Collector, Darbhanga ...... Respondents. ----------- For the petitioners : Mr. Prem Kumar Jha, Advocate. Mr. Rajesh Kumar Jha,Advocate Mr. Jitendra Kumar Singh, Advocate. For the State : Mr. Anshuman Singh, A.C to AAG-3 For the Housing Board : Mr. Rajeev Nayan Singh, Advocate. ------- 19 12.01.2011 Heard the parties. 2. The petitioners, who all are full brothers, have filed the present writ petition under Article 226 of the Constitution of Indian with a prayer for setting aside the appellate order dated 19.6.2003 (Annexure-11) passed in Appeal No.13 of 1991 as also the original order dated 10.4.1991 (Annexure-10) passed by the competent authority of the respondent Housing Board in Eviction case No. 34 of 1990. By the impugned original order dated 10.4.1991, the petitioners have been directed to vacate their possession from the lands in question and thereafter handover possession of the same to 2 the respondent Housing Board within 30 days and also to pay damages/compensation for unauthorized occupation, otherwise respondent Housing Board shall be at liberty to take forcible possession of the lands in question with the help of the police force and would be entitled to realize the compensation /damages in accordance with law. The appeal preferred by the petitioners has been dismissed primarily on the ground that no gazette notification has been issued for releasing the lands in question from acquisition. 3. The short facts which are relevant for disposal of the present writ petition are indicated as hereunder. The petitioners claim that the land bearing Khesra No. 33/30 of Khata No. 13, total area being 15 katha 16 dhurs situate at Mahal Taralahi, Pargana- Farukhpur, presently at village Saidnagar, P.S. Laheriasarai, District Darbhanga (hereinafter referred to as the lands in dispute) was originally recorded in the name of late Ram Kishun Jha, the father of the petitioners. It is also claimed that out of total area of 15 katha 16 dhurs only an area of 7 katha 13 dhurs = 0.265 Acre is under dispute in the present proceeding. According to the petitioners, all the four brothers got equal share of 1 katha 18 1/2dhurs from the lands in dispute which is involved in the present proceeding, and for the same they are paying rent to the State of Bihar and rent receipts are being issued in their favour. 4. It appears that the respondent Housing Board in the year 1976 made a requisition for acquiring 11.10 acres of lands at village Said Nagar, Pargana Farukhpur in the town and district of Darbhanga for executing housing scheme. It further appears that a notification in 3 terms of Section 4 of The Land Acquisition Act 1894 (hereinafter referred to as the Act) was issued on 23.11.1976, which includes the lands in question also. Some objections were filed, which all were disposed of and finally an award in terms of section 11 of the Act was prepared on 22.9.1986. A notice under section 12(2) of the Act was issued by the respondent District Collector to the petitioners and all other concerned persons to receive the award amount for the lands, which were acquired by the respondent authorities under the provisions of the Act. According to the respondent State, so far land of the petitioners is concerned an award of Rs.11,910.25 was prepared, but despite notice, the petitioners did not receive the award amount and as such, subsequently, it was deposited in the Government Treasury on 14.1.1988. It is also the case of the respondents that possession of land in question was taken, whereafter possession was handed over to the Housing Board on 12.6.1987 and, therefore, the occupation of the petitioners over the land in question was unauthorized one. Since the petitioners did not vacate the possession over the land in question, therefore, the impugned order dated 10.04.1991 (Annexure-10) was passed by the competent authority in exercise of Powers under the provisions of section 59and 83 (A) of the Bihar State Housing Board Act, 1982 (referred to as Housing Board Act in short) . The petitioners, being aggrieved by the said order, preferred appeal in terms of section 60 of the Housing Board Act, which has been rejected by the order dated 19.06.2003 (Annexure-11). 5. Learned counsel for the petitioners submits that petitioners have no other land except the land in question and, therefore, despite 4 the acquisition proceeding having been started by the authority under the provisions of the Act, they remained in continuous possession over the same. They further claim to have constructed their residential house over the land in question, after obtaining loan and they are residing in the same. It is submitted that, the possession of the land in question was never taken by the respondent authorities ,and since the petitioners have no other land except land in question, they filed a petition before the Respondent authorities for releasing the land in question from acquisition under section 48 of the Act in their favour. 6. By referring to Annexure 4 dated 22.09.1986, a letter written by respondent District Collector to the Under Secretary, Department of Revenue and Land Reforms, Government of Bihar, it is submitted that even respondent District Collector, taking into consideration the entire facts and circumstances, made a recommendation for releasing the land in question from acquisition in favour of the petitioners. It is also highlighted that by reason of the aforesaid letter dated 22.09.1986 (Annexure-4), the Under Secretary, Department of Revenue and Land Reforms issued a letter dated 03.07.1987 (Annexure-5) communicating the decision of the State Government to the respondent District Collector that the land in question has been released from acquisition, and the respondent District Collector was directed to prepare a withdrawal notification for releasing the land in question. Some other documents/communications have also been brought on record on behalf of the petitioners to show that in fact the matters regarding release of the land in question in terms of Section 48 of the Act were/ are under active consideration. 5 However, learned counsel for the petitioners has not been able to produce any notification issued in terms of 48 of the Act and published in the official gazette. 7. Learned A.C. to A.A.G.-3 appearing on behalf of respondent nos. 1 to 3 and 10 submits that once acquisition proceeding has been concluded and once the award has been prepared and possession of the land in question has been handed over to the respondent housing board, there was no occasion for the State respondents to take any action in terms of Section 48 of the Act. In the same vein, he submits that if the petitioners at all, wanted that the land in question be released, then they should have approached the respondent District Collector and only thereafter any action could have been initiated. In his submission ,petitioners having not approached the Respondent District Collector, and no notification in terms of section 48 of the Act having been issued so far, their claim for release of the land in question now cannot be entertained. According to him, whatever decision is required to be taken regarding the land in question, that can be taken only by the respondent Housing Board and not by the respondent State and its Officers. 8. Learned counsel appearing on behalf of the respondent Housing Board and its officials has tried to justify the impugned orders as contained in Annexures 10 and 11. He submits that once possession of the land in question was handed over to the respondent Housing Board, the petitioners had no authority to remain in possession over the same and, therefore, authorities have rightly 6 passed the impugned orders for their eviction from the land in question. He also submits that in view of unauthorized occupation of the petitioners, they are obliged to pay penal rent for the same. 9. After having heard the parties at length, and after considering all the materials available on record and after giving anxious consideration of the issues involved in the present case, this court is of the considered opinion that the matters regarding release of the land in question Under Section 48 of the Act has not been finally concluded by the competent authority. Section 48 of the Act contemplates that after preparation of award, if possession over the lands so acquired, has not been taken, then the State Government shall be at liberty to withdraw from such acquisition and consequently, action can be taken for releasing such lands. It appears that the petitioners are coming in possession over the land in question despite preparation of award by the respondent authorities under the Provisions of the Act. The impugned orders, contained in Annexures 10 and 11, also suggest that the petitioners are in possession over the land in question. It is also not in much controversy that the petitioners are poor persons and they are having small area of land for their residential house. The question remains that unless and until issues regarding action under section 48 of the Act were finally concluded by the competent authority, whether there was any occasion for the respondent Housing Board for passing impugned orders as contained in Annexures 10 and 11. From perusal of Annexure -5, this court finds that some decision was taken by the State Government for releasing the land in question as far back as in the year 1987, but fact remains 7 that notification under section 48 of the Act for releasing the land in question from acquisition has not been published in the official gazette. Claim of the petitioners by the Officials of the respondent Housing Board has been rejected primarily on the ground that there was no valid document/notification to show that the land in question has been released by the respondent authorities under the Provisions of the Act. 10. In the aforesaid background, this court is of the considered opinion that this matter is required to be finally concluded at the highest level of the respondent State. Respondent No. 2, being the Commissioner-cum-Secretary, Revenue and Land Reforms Department, Government of Bihar, would be most appropriate authority to take final decision regarding claim of the petitioners in terms of section 48 of the Act. Respondent no. 2 shall take into consideration all the relevant materials available on record, all the intra and inter-departmental communications regarding claim of the petitioners for taking final decision in the matter under section 48 of the Act. If, the respondent no. 2 comes to a finding that the lands are fit to be returned to the petitioner, then appropriate gazette notification is required to be published in terms of section 48 of the Act. If such a decision is taken and consequently, gazette notification is published, then the orders passed by the Housing Board shall not be given effect to. However, if the respondent no. 2 finally concludes that the lands are not to be released in favour of the petitioners in terms of section 48 of the Act, then in that case respondent Housing Board shall be at liberty to take follow up action for getting the impugned orders 8 implemented under the provisions of the Housing Board Act. 11. The petitioners are hereby directed to file a representation before respondent no. 2 along with all relevant materials/documents within a period of one month, accompanied by a certified copy of this order, whereafter respondent no. 2 shall take final decision within a period of three months from the date of filing of such representation. It is made clear that before passing final order, respondent no. 2 would be obliged to give opportunity of hearing to all concerned including the respondent Housing Board. It is expected that respondent no. 2 shall decide the matter by a reasoned and speaking order either in favour or against the petitioners without being prejudiced by the observations made in the present order. However, till the matter is finally disposed of by the respondent no. 2, the orders contained in Annexures 10 and 11 shall be kept in abeyance. It is made clear that if, the petitioners do not file representation before respondent no. 2 within the period prescribed by this Court, the respondent Housing Board shall be at liberty to proceed in the matter in accordance with law. The application stands disposed of. No costs. M.Rahman ( Birendra Prasad Verma, J )