IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 7391 of 1988 Date of Decision: February 23, 2010 Joginder Singh and others …Petitioners Versus Chandigarh Administration and others …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. Amarjeet Markan, Advocate, for the petitioners. Mr. K.K. Gupta, Advocate, for the respondents. 1. To be referred to the Reporters or not? Yes 2. Whether the judgment should be reported in the Digest? Yes M.M. KUMAR, J. This petition filed under Article 226 of the Constitution seeks a mandamus to the respondents to issue a notification de-notifying the acquisition proceedings in respect of land measuring 21 Kanals 19 Marlas, situated at village Manimajra, U.T. Chandigarh, belonging to the petitioners. A further prayer has been made for setting aside Mutation No. 1771, decided on 13.10.1963, declaring the Provincial Government as owner of the land in question unlawfully and illegally and to re-enter the petitioners’ names in the column of ownership with continuity after declaring them as owners and in possession without break. The instant petition has been filed by Sarvshri Joginder Singh and Mehar Singh sons of Shri Sunder Singh, residents of Village Manimajra, U.T. Chandigarh. During the pendency of the petition, Shri Mehar Singh-petitioner No. 2 expired and his legal heirs were brought on record vide order dated 29.5.2003 passed in C.M. Nos. 12487 to 12489 of 2003. The claim of the petitioners is that C.W.P. No. 7391 of 1988 they were owners in possession of the agricultural land comprised in Khasra No. 439, measuring 12 Bighas 5 Biswas, situated in village Manimajra, U.T. Chandigarh, as per jamabandi for the year 1956-57 (P-1). In the year 1958-59, repartition under the East Punjab Consolidation of Holdings (Prevention of Fragmentation) Act had taken place and the petitioners were allotted land comprised in Killa No. 58//13/2, 14, 15/1, 16/2 and 17, total measuring 21 Kanals 19 Marlas, in lieu of the land held by them earlier. They have placed on record jamabandies for the year 1964-65, 169-70, 1974-75 and 1979-80 to show that they were in continuous physical possession of the aforementioned land (P-2 to P-5). Somewhere in the year 1955, the then Capital Project Administration issued a notification for acquisition of the land in question for the public purpose, namely, for the Capital of Punjab. The said notification was followed by another notification dated 29.12.1955, issued under Section 6 of the Land Acquisition Act, 1894 (for brevity, ‘the Act’) [P-6]. The petitioners have claimed that at no point of time any notice, intimation or information for acquiring their land was issued and they were kept unaware of issuance of aforementioned notifications for acquisition of the land. They continued to enjoy peaceful and uninterrupted possession of the land in question. However, on the basis of notification issued under Section 6 of the Act, Mutation No. 1771 was sanctioned in favour of the Provincial Government vide order dated 13.10.1963 and ownership of the land in question was changed in the name of the Provincial Government. It has been alleged that the said mutation was sanctioned at the back of the petitioners because no notice or opportunity of hearing was given to the petitioners. On coming to know about the acquisition and sanctioning of the mutation, the petitioners represented to the authorities to de-notify their action as the land was not required by the Government. On 18.5.1967, the Estate Officer- cum-Deputy Commissioner-respondent No. 2 directed the Chief Engineer to conduct an enquiry as to whether the land of the petitioners was still required for the brick kilns by their department and in case it was no longer required then to 2 C.W.P. No. 7391 of 1988 intimate accordingly so that the land could be released from acquisition (P-7). On 7.8.1967, the Superintending Engineer, Construction Circle, Chandigarh, intimated to respondent No. 2 that the land acquired for running the brick kiln was never used by their department and the same was no more required for that purpose. No objection was also given for de-notifying the land from acquisition (P-8). On 21.10.1967, respondent No. 2 exercising the power of Land Acquisition Collector sent the matter to the Secretary, Engineering Department, Chandigarh, for de-acquisition of the land in village Manimajra (P-9). On 20.4.1968 (P-10), the Land Acquisition Collector in response to a letter dated 28.2.1968 of the Secretary, Chandigarh Administration, Engineering Department, intimated as under:- “(i) No compensation is paid to the owners so far. The amount of compensation have already been deposited in the Government Treasury when the land was acquired; (ii) The ownership of the land had since been transferred in the name of Government in the revenue record; (iii) The land in question may be de-acquired as the same is not needed for the purposes for which it was acquired.” After waiting for some time and believing that de-acquisition notification might have been published in the Gazette, the petitioners filed an application dated 8.5.1984 before the Tehsildar, Union Territory, Chandigarh, for entering their names in the ownership column and for sanction of the mutation. On 25.6.1984, the Land Acquisition Officer, UT Chandigarh, again sought the information from the Chief Engineer and Secretary, Chandigarh Administration about the action taken in the matter (P-11). On 17.7.1987, the petitioners made a representation to the Legal Remembrancer, U.T. Chandigarh-respondent No. 4 for intervening in the matter so that their grievances could be redressed (P-12). Thereafter, on 15.4.1988, the petitioners again filed an application to the Naib Tehsildar that they are continuously in possession of the land in dispute and have been regularly paying the Mal Guzari as co-owners and cosharers. It was also 3 C.W.P. No. 7391 of 1988 pointed out that they have not received any compensation for any acquisition. The said application was sent to the concerned Patwari for report. On 15.4.1988, the Patwari made the following report: “Sir, It is submitted that according to revenue record i.e. Jamabandi for the years 1964-65 to 1984-85; the land comprised in Khasra No. 58//13/2 (1-3), 14/5, 15/1 (3-16), 16/2 (4-8), 17, Total 5 Killas measuring 21-19 is in the name of Provincial Government, but Joginder Singh, Mehar singh sons of Sunder Singh of village Mani Majra are in its possesson as Gair Marusian Bashehra Malkan Bila Malkan Bawaza deacquire in equal share. The revenue of land is Rs. 5.32 P. Ever since of the acquisition of this land, then possession has not been transferred. The land revenue tax has also been paid of this land by the owners Joginder Singh, Mehar singh sons of Sunder Singh in equal share. Report is submitted.” On receipt of the aforementioned report from the Patwari, the application of the petitioners was simply returned to them by the Naib Tehsildar without taking any action. In the backdrop of above factual position, the petitioners approached this Court by filing the instant petition. In the written statement filed by the respondents it has been asserted that the land in question was acquired in the year 1956 and possession was taken over by the Government. The amount of compensation was deposited in the Government Treasury but the petitioners have not come forward to receive the same. It has been submitted that the petitioners have managed fake entries in the revenue record regarding possession in connivance with some official of the revenue department, inasmuch as, the entry with regard to possession is not supported by any document. The Chandigarh Administration has never de- notified the land in dispute in favour of anybody including the petitioners. The possession of the land is with the Government and it is going to construct a colony there for rehabilitation of slum dwellers uprooted from different parts of the 4 C.W.P. No. 7391 of 1988 City Beautiful. It has also been pointed out that on 29.12.1955 the Government had issued a notification in the official Gazette and acquired the land in question under land acquisition order passed on 7.1.1956. The physical possession of the entire acquired land measuring 43 Bighas and 18 Biswas was taken over by Shri Lekh Raj, Overseer on 23.1.1956 in the presence of Shri Teja Singh, Patwari (Capital), Ajmer Singh, Lambardar and Shri Telu Ram, Dafedar. Moreover, the ownership of the entire land has been transferred in the name of the Provincial Government. Except the petitioners, all other persons whose land was acquired vide the same notification, have already accepted the compensation and did not raise any objection to the acquisition proceedings. It has further been submitted that due to price escalation, the petitioners want denotification of their land so as to earn huge profits. In case their prayer is allowed then the public purpose of rehabilitation of the slum dwellers would be frustrated. It is denied that the petitioners were not aware of the acquisition proceedings because the statements of Joginder Singh-petitioner No. 1 and one Jeet Singh regarding the objections to the acquisition proceedings were recorded by the department. The respondents have also sought dismissal of the instant petition on the ground of huge delay and laches because there is a delay of 33 years in filing the present petition since the acquisition of the land in dispute. Controverting the averments made in the written statement, the petitioners filed a replication reiterating the pleas already raised by them in the writ petition. It has been emphasised that they are in continuous possession of the land in dispute and everything has been done at their back. On 25.3.2009, when the matter came up for consideration before a Division Bench of this Court, after going through the averments made in para 3 of the written statement that the possession of the land was taken by the Government and compensation deposited in the Government treasury and the Government proposes to construct a rehabilitation colony for slum dwellers, a query was put by this Court to the learned counsel for the respondents whether there is a provision for rehabilitating the petitioners and whether award was made 5 C.W.P. No. 7391 of 1988 before taking the possession, as claimed by the respondents. Learned counsel for the respondents was unable to respond. Accordingly, time was granted to get the information. On 28.7.2009, an affidavit dated 24.7.2009, was filed by Ms. Hargunjit Kaur, PCS, Land Acquisition Officer, Chandigarh, disclosing that out of 9.15 acres of land acquired on 29.12.1955, a small part is still lying vacant. It has also been mentioned that the Chandigarh Administration has no policy for rehabilitation of those persons whose land have been acquired. The rehabilitation policy has been framed for the construction and providing of dwelling units to the slum dwellers. So far as the land owners whose land have been acquired are concerned, the Chandigarh Administration had notified a policy on 12.1.1996, namely, ‘the Chandigarh Allotment of Dwelling Units to the Oustees of Chandigarh, 1996’, whereunder provision was made for allotment of dwelling units to the oustees whose land was acquired for the development of Chandigarh and the award of compensation under the relevant provisions of the Land Acquisition Act was made on or after 1.11.1966 i.e. the date when the Union Territory, Chandigarh came into being. On 12.4.2002, the said policy was further modified and it was provided to allot residential flats by the Chandigarh Housing Board in its various schemes to those oustees whose houses were acquired before, on or after 1.11.1966 for the purposes of development of Capital of Punjab (Chandigarh). Provision of 5% reservation was made for the oustees in different schemes of the Chandigarh Housing Board. In the said affidavit other details regarding reservation of dwelling units under various schemes have also been furnished. With regard to the question of making of award before taking possession, as was posed by the Division Bench in its order dated 25.3.2009, in para 2 of the affidavit it has been submitted as under:- “2. That so far as the information regarding the making of the award before taking possession is concerned, it is submitted that the office of the deponent has made all sorts to search the record, which 6 C.W.P. No. 7391 of 1988 by now is 54 years old but is able to search out only the Revenue Record pertaining to the land in question wherein it has been mentioned that the land was acquired vide document bearing No. C- 1321-55/vi/995 dated 29.12.1955 and thereafter in the ownership column the ownership of the land was mutated in the name of The Provincial Government on 13.10.1963. However, as per the documents already placed on the record of the case which the petitioners themselves have attested to be the true copies of the original, it has been gathered that the land was acquired on 29.12.1955. The possession of the land was taken over by the Provincial Government on 23.01.1955 through Shri Lekh Ram, Overseer and the compensation of the land was deposited in the Revenue Deposit because of the failure of the right-holder to receive the same. At the relevant time, Collector, Ambala was havig the jurisdiction in the matter. The Union Territory of Chandigarh came into being with effect from 01.11.1966. Initially the land was utilized for Brick Kilns for setting up the Capital of Punjab and lateron rehabilitation colony was constructed thereupon. In the given situation, the writ petition filed by the petitioners for de-notifying the land and for change of mutation in their favour is not liable to be accepted because of the fact that on the majority of the land which was acquired, rehabilitation colony for the slum dwellers has already been constructed and allotted to the eligible persons. Only a small part out of the total acquired land of 9.15 acre, is lying vacant adjoining the said colony. As such, at this belated stage, the relief sought by the petitioners for de-notifying the land and for change of mutation in their favour is not liable to be accepted.” On 28.7.2009, the Division Bench of this Court further directed to the Land Acquisition Officer to file an affidavit asserting whether or not the land which was under the ownership of the petitioners prior to the acquisition proceedings is 7 C.W.P. No. 7391 of 1988 vacant and unutilised at the present juncture. On 4.8.2009, another affidavit was filed by Shri Ashwani Kumar, HCS, Land Acquisition Officer, U.T. Chandigarh, clarifying as under:- 1. ……it is clarified that the small part out of the total acquired land which is lying vacant as referred in para No. 2 of the earlier affidavit dated 24.07.2009, was under the ownership of the petitioners prior to its acquisition. The same was left out at the time of construction of the rehabilitation colony on the acquired land because of the status quo being ordered to be maintained in the present case. Otherwise, the possession of the said part of the land was also taken over by the Provincial Government and mutation in the Revenue Record was also made accordingly in the ownership column. However, some how, the petitioners were managing the fake entries with regard to the possession in the Revenue Record as has been mentioned in the written statement filed on 16.01.1989 also. In fact, the petitioner No. 2 himself was working as Ziladar and one of the sone of the petitioner No. 1 namely Shri Hardyal Singh is working as Lambardar and were managing the entries in the Revenue Record and the report of the Patwari which otherwise are factually incorrect and the land continued to be abandoned and in possession of the Provincial Government and now with the Chandigarh Administration. The entire adjoining belt of the said part of the land was also acquired subsequently vide Award announced on 05.03.2003. The aforesaid small part of the land left out of 1955 acquisition and the adjoining entire belt of the land known as Pocket No. 8 acquired vide Award dated 05.03.2003 is planned to be utilized for construction of Government College, Sports Complex, Commercial Complex etc. The construction could not take place because of the pendency of a bunch of writ petitions against the Award dated 05.03.2003, which have although been dismissed by 8 C.W.P. No. 7391 of 1988 this Court but in the Special Leave Petitions filed by the land owners before the Hon’ble Supreme Court of India, status quo have been ordered to be maintained qua the land acquired vide Award dated 05.03.2003.” On 8.9.2009, another affidavit dated 7.9.2009 was filed by the Land Acquisition Collector further clarifying that the entire adjoining belt of the land in dispute was also acquired subsequently vide award announced on 5.3.2003 and the entire belt including the land in question has been planned by the name known as Pocket No. 8. The site plan showing the planning made in that regard by the concerned branch has been placed on record as Annexure A-1, wherein the entire land in question, which is subject matter of the instant petition, is included. After hearing learned counsel for the parties and perusal of record with their able assistance, we are of the considered view that the only question which requires determination by this Court is as to whether the acquired land could be de-notified after the award and proceedings for taking possession under the Act has been undertaken. In order to appreciate the controversy raised, it would be appropriate to read Section 48 of the Act, which is as under:- “ 48. Completion of acquisition not compulsory, but compensation to be awarded when not completed. – (1) Except 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. (2) Whenever the Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings thereunder, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land. 9 C.W.P. No. 7391 of 1988 (3) The provisions of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this section.” A perusal of sub-section (1) of Section 48 of the Act would show that the State Government is at liberty to withdraw from acquisition of any land if possession has not been taken. Therefore, a subsidiary issue, which arise for determination is whether possession was taken or it continued to be with the expatriates. At this stage it is appropriate to consider the provisions of Section 16 of the Act, which reads thus:- “ 16. Power to take possession.- When the Collector has made an award under section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government, free from all encumbrances.” A perusal of the aforementioned provision shows that after the award under Section 11 of the Act has been announced by the Collector then he can take possession of the land, which is to vest absolutely in the Government free from all encumbrances. It has come on record that possession of the land in question was taken over by the Provincial Government on 23.1.1955 through Shri Lekh Ram, Overseer and thereafter in the ownership column the ownership of the land was mutated in the name of the Provincial Government on 13.10.1963. From the bare perusal of Section 48(1) of the Act it appears to be plain that after taking possession under Section 16 of the Act, the land vest in the State Government free from all encumbrances and it cannot be de-notified. The aforementioned proposition came up for consideration before Hon’ble the 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 10 C.W.P. No. 7391 of 1988 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 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 11 C.W.P. No. 7391 of 1988 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 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