20. The facts of the decision so relied upon by the learned counsel for the petitioner as reported in 2010(1) P.L.J.R. 317, it is evident that the same was under Order 39 and 1 and 2 read with Section 151 of the C.P.C. relating to Title Suit No.24 of  Patna High Court CWJC No.8216 of 2013 (04) dt.09-05-2016 22 2003 as well as Title Suit No.19 of 2003 and in the aforesaid background, though the suit were filed asking for directing the defendant to execute sale deed after receiving the due consideration amount and in the aforesaid background, the theme of applicability of injunction was considered and further, in casual manner, the proprietary of the document in question in terms of Section 17 (1-A) of the Registration Act was taken note of. Furthermore, the aforesaid exercise was taken up in the background of argument advanced on behalf of learned counsel for the appellant that the suit was in terms of Section 53(A) of the T. P. Act.


Md. Anzar vs Md. Manzar Ali @ Kali on 9 May, 2016

21. In A.I.R. 2010 Punjab and Haryana 77, the aforesaid suit was for the purpose of Specific Performance of Contract wherein after appearance of defendant, plea was taken up on the ground of fraud having been played and for that, separate suit was filed and both the suits were clubbed together and then, was decided against which an appeal was filed. After going through the judgment, it is evident that though at an initial stage, the Court had perceived the suit to be that of Specific Performance of Contract, but during course of discussion, the finding was recorded treating the suit to be under Section 53(A) of the T.P. Act and so, applicability of Section 17(1-A) has been perceived.  Patna High Court CWJC No.8216 of 2013 (04) dt.09-05-2016 23
 22. As held, both two, that means to say, plea under Section 53(A) of the T. P. Act as well as a suit under Specific Performance of Contract Act has got independent identity and for that proper adjudication is required. That being so, it happens to be premature to infer at the present moment that instant suit happens to be under Section 53(A) of the T.P. Act, therefore, has got some sort of bezel of Section 17 (1-A) of the Registration Act.

 23. In the background of aforesaid observation, instant petition is disposed of.

 (Aditya Kumar Trivedi, J) Vikash/-
 U


Thakur Shambhu Prasad Singh @ ... vs Krishna Kumar Singh & Ors on 11 August, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA
                      First Appeal No.633 of 1998
======================================================


======================================================
Kusheshwar Purbey .... .... Appellant/s Versus Shri Shri 108 Ram Janaki Jee S .... .... Respondent/s ====================================================== with Miscellaneous Appeal No.508 of 1998 ====================================================== Kusheshwar Purbey .... .... Appellant/s Versus Mohan Nayak & Ors .... .... Respondent/s ====================================================== with First Appeal No.270 of 1998 ====================================================== Jibachh Pradhan .... .... Appellant/s Versus Most.Radha Devi .... .... Respondent/s ====================================================== with First Appeal No.276 of 2008 ====================================================== Thakur Shambhu Prasad Singh @ Thakur Pd. Sinha & Ors .... .... Appellant/s Versus Krishna Kumar Singh & Ors .... .... Respondent/s ====================================================== with First Appeal No.114 of 2013 ====================================================== Kusum Devi Wife Of Uma Kant Pandey Resident Of Village- Gaderia, P.S.- Imamganj, Dist.- Gaya .... .... Appellant/s Versus Pallavi Kumari D/O Late Brajesh Kumar Pandey Alias Brajesh Pandey R/O Village- Babhandi (Gaiwalganj), P.S. And Anchal- Imamganj, Dist.- Gaya .... .... Respondent/s ====================================================== with  Patna High Court FA No.633 of 1998 (52) dt.11-08-2017 First Appeal No.450 of 2001 ====================================================== Ram Ekbal Dubey @ Nathuni Dube .... .... Appellant/s Versus Deo Kumar Dubey & Anr .... .... Respondent/s ====================================================== with First Appeal No.98 of 1991 ====================================================== Indri Kuer & Ors .... .... Appellant/s Versus Krishna Kant Singh & Ors .... .... Respondent/s ====================================================== Appearance :


(In FA No.633 of 1998) For the Appellant/s : Mr. Ganpati Trivedi, Sr. Adv.


Mr. R.K. Sinha no. 2, Adv.

 Mr. Madan Mohan, Adv.

 Mrs. Pallavi Pandey, Adv.

 For the Respondent/s : Mr. Jitendra Kishore Verma, Adv.

 Mr. Anjani Kumar, Adv.

 Mr. Abhishek Anand, Adv.

 Mr. Gautam Sinha, Adv.

 (In MA No.508 of 1998) For the Appellant/s : Mr. Sukumar Sinha For the Respondent/s : Mr. Nirmal Kumar Sinha-3 Mr. Arun Kumar Mr. Nawal Kishore Prasad (In FA No.270 of 1998) For the Appellant/s : Mr. Ray Shivaji Nath, Sr. Adv.

 Mr. Ray Saurabh Nath, Adv.

 Mrs. Manjari Nath, Adv.

 Mr. Chandan Jha, Adv.

 Mr. Alok Anand, Adv.

 For the Respondent/s : Mr. Subhro Sanyal Mr. Sanjiv Kumar  Patna High Court FA No.633 of 1998 (52) dt.11-08-2017 Mr. S.Kashyap (In FA No.276 of 2008) For the Appellant/s : Mr. Ratan Kumar, Adv.


For the Respondent/s           :       Mr.
                    (In FA No.114 of 2013)
                    For the Appellant/s        :           Mr.
                    For the Respondent/s           :       Mr.
                    (In FA No.450 of 2001)
                    For the Appellant/s        :           Mr. Kamal Nayan Choubey, Adv.
                                                           Mr. Ambuj Nayan Choubey, Adv.
                                                       Mr. Yogendra Kumar Dwiwedi, Adv.
                                                        Mr. Nagendra Dubey

                    For the Respondent/s           :       Mr. Shrinandan Singh, Adv.
                                                           Mr. Ram Nath Sharma, Adv.
                    (In FA No.98 of 1991)
                    For the Appellant/s   :                Mr. Kalyan Kr.Ghosh
                                                        Mr. Binay Kr.Ambastha

                    For the Respondent/s           :       Mr. Madan Singh
                                                        Mr. Hari Nr.Singh

 ====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL and HONOURABLE MR. JUSTICE V. NATH CAV ORDER (Per: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL) 52 11-08-2017 The order on the reference of the learned single judge.


The irksome issue pertaining to the classification of the appeals filed before this Court under Section 299 of the Indian Succession Act (for short 'the Act') and under section 384(2) of the Act has been placed for determination upon reference  Patna High Court FA No.633 of 1998 (52) dt.11-08-2017 expressing doubts over the decision by a learned single judge in Most. Kewala Devi Vs. Smt. Krishna Devi, 2013 (1) PLJR

 176. The reasons for making the reference has been mentioned, in detail, in the order dated 03.11.2015, and the authoritative pronouncements by the Apex Court and other courts have also been elaborately taken into notice which require no repetition in this order. Suffice it to state that some of the appeals have been filed under Section 299 of the Act as First Appeals against the order of grant or refusal of probate or letters of administration and some of the appeals have been filed under Section 384 (2) of the Act against the order of grant or refusal of succession certificate.


The main plank of submissions of Mr. Trivedi, learned senior counsel for the appellant in F.A. No. 633 of 1998 and M.A. No. 504 of 1998 is based upon the proposition that in view of the use of the word 'order' in Section 299 of the Act, an appeal filed against such 'order' would be governed by Section 104 of C.P.C. providing for an appeal against an order passed in the suit and would be further regulated by the procedure prescribed therefor. Pyramiding his contentions, learned senior counsel has relied upon general rules of statutory interpretations  Patna High Court FA No.633 of 1998 (52) dt.11-08-2017 frowning upon import of external aid for providing meaning to unambiguous words or provisions in a statute. Placing decisions galore, it has been propounded that an order passed in a proceeding for grant of probate or letters of administration of a Will or a proceeding for grant of succession certificate shall be subject to the procedure envisaged in the Code of Civil Procedure for an appeal against an order. Lastly, it has also been submitted that the Constitution Bench decision in P.S. Sathappan vs. Andhra Bank Ltd., A.I.R. 2004 S.C. 5152 has settled the controversy finally holding that an appeal against the orders in controversy at present would be an appeal under Section 104 C.P.C. Learned senior counsel, in addition, has also referred to the provisions in part-X of the Indian Succession Act for contending that an order passed in a proceeding for grant of succession certificate has also been declared conclusive but according to the practice and procedure of this Court, a Misc. Appeal is filed and entertained against such an order.


Mr. Verma, learned counsel appearing on behalf of the respondents in F.A. No. 633 of 1998 and M.A. No. 508 of 1998, however, has taken an entirely different stand by coming out with the proposition that taking a literal meaning of the word 'order' in a statutory provision would not be only a determinative  Patna High Court FA No.633 of 1998 (52) dt.11-08-2017 factor, and the context in which certain order has been passed and its effect on the rights and liabilities of the parties in the proceeding have to be given primacy. It has been propounded that an adjudication in a proceeding shall be a 'decree' if the statute so provides directly or by deeming fiction but there is another classification also where such adjudication has been conferred the status of a decree under certain circumstances, by authoritative pronouncements. It has been argued that in a proceeding for grant of probate or letters of administration there is definitely a final adjudication on the rights and liabilities of the parties and an order under Section 299 of the Indian Succession act will have to be given the status of a 'decree' and an appeal against such order will be regulated by the procedure prescribed for an appeal against a decree. Making a frontal attack on the submissions on behalf of the appellants in first two appeals regarding statutory conclusiveness of the order passed in a proceeding for grant of probate or letters of administration and the proceeding of grant of succession certificate, it has been pointed out that there is substantial difference in the provision under Section 275 and the provision under Section 381 pertaining to the element of conclusiveness inasmuch as a certificate granted under part-X of the Indian Succession Act, as  Patna High Court FA No.633 of


class="hidden_text" id="span_11"> Patna High Court FA No.633 of 1998 (52) dt.11-08-2017</span> envisaged in Section 381, has been expressly made subject to the other provision of said part which includes Section 373 as well but no such condition has been mentioned while declaring the conclusiveness of the order passed in a proceeding for grant of probate or letters of administration.


Learned counsel for the parties in other appeals, however, have supported the reference by submitting that a regular First Appeal would lie against the final order passed in a proceeding for grant of probate or letters of administration and a Misc. Appeal would lie against the final order in a proceeding for grant of succession certificate.

 Learned counsel for the parties have relied upon large number of decisions which shall be taken into notice in this order appropriately hereinafter.


After considering the submissions on behalf of the parties, it is quite limpid that the adjudication in a proceeding for grant of probate or letters of administration involves determination of certain rights of the parties. This is also the view expressed by the Full Bench of the Allahabad High Court in Mrs. Panzy Fernandas Vs. Mrs. M.F. Queoros, A.I.R. 1963 All. 153 observing that an order passed in an application for probate or letters of administration does adjudicate on certain  Patna High Court FA No.633 of 1998 (52) dt.11-08-2017 rights of the parties conclusively. This facet has been now finally settled by the Apex Court in Subal Paul Vs. Malina Paul, (2003) 10 SCC 361 where their lordships have observed as follows:-
 "31..........The order passed under Section 299 of the Act may be an interlocutory order determining the rights of the parties or a final order. When a final order is passed in a contentious suit, as would be evident from the provisions contained in Section 295 of the Act, the procedures of the Code of Civil Procedure are required to be followed. Therefore, a final order passed between the parties adjudicating upon the rights and obligations which are binding between the parties thereto and are enforceable, although may not be stricto sensu a decree within the meaning of section 2 (2) of the Code of Civil Procedure Code but it is beyond any cavil that the same would be a judgment within a meaning of Section 2 (9) thereof........"


The controversy pertaining to the nature and legal effect of a final adjudicatory order in a proceeding for grant of probate or letters of administration has been also highlighted by the Apex Court in Smt. Rukmani Devi vs. Narendra Lal Gupta, A.I.R. 1984 SC 1866 where their lordships have opined  Patna High Court FA No.633 of 1998 (52) dt.11-08-2017 as follows:-
 "2...........It is well-settled that the decision of the probate court is a judgment in rem. The High Court rightly held that till the order granting probate remains in force it is conclusive as to the execution and validity of the will till the grant of probate is revoked. Apart from the fact that a decision of the probate court would be a judgment in rem not only binding on the parties to the probate proceedings but it will be binding on the whole world. Therefore, a solemn duty is cast on the probate court. Section 41 of the Indian Evidence Act, 1872 provides that a final judgment or order of a competent court in the exercise of probate jurisdiction is conclusive proof of what is decided therein that is about the genuineness of the will. To be precise, a probate granted by a competent court is conclusive of the validity of such will until it is revoked and no evidence can be admitted to impeach it except in a proceeding taken for revoking the probate..................."


We are inclined to align with the submission of Mr. Verma, learned counsel for the respondents that taking a literal meaning and connotation of the word 'order' in a statutory  Patna High Court FA No.633 of 1998 (52) dt.11-08-2017 provision would not be sufficient for determination of the nature and import of such order. In this context, it would be condign to notice the distinctive feature of the definition of a decree and an order in section 2 (2) and Section 2 (14) of the Code of Civil Procedure. In the former the emphasis is on an adjudication conclusively determining the rights of the parties whereas in the later it is any decision of the civil court which is not a decree. The attempt on behalf of the appellants to wriggle out of the implications flowing from the observations of their lordships in Subal Paul (supra) on the basis of the contention that the issue in the said decision mainly pertained to the connotation of 'judgement', has failed to enthuse this Court because in view of the definition of 'judgment' in the Code of Civil Procedure, there would have to be a judgment in both the cases when there is a 'decree' or 'order'. The crucial test, therefore, for determination of the question whether an order can be raised to the level of the decree is only the consideration whether it finally adjudicates the rights of the parties in the proceeding.


In the case of M/s Ram Chand Spg. And Wvg. Mills Vs. M/s Bijli Cotton Mills (p) Ltd., Hathras, A.I.R. 1967 S.C. 1344, a three judge Bench of the Apex Court has laid down the test to adjudge the nature of an 'order' being final order as  Patna High Court FA No.633 of 1998 (52) dt.11-08-2017 follows:-
 "12....... As to what is a final order was stated by this Court in Jethanand and Sons Vs. State of Uttar Pradesh, A.I.R. 1961 SC 794, in the following terms:-
 "An order is final if it amounts to a final decision relating to the rights of the parties in dispute in the civil proceeding. If after the order the civil proceeding still remains to be tried and the rights in dispute between the parties had to be determined, the order is not a final order within the meaning of Art.

 133."

 Similarly in Abdul Rahman Vs. D.K. Kassim and Sons, 60 Ind App 76: (A.I.R. 1933 PC 58), Sir George Lowndes observed: "The finality must be finality in relation to the suit. If after the order the suit is still alive in which rights of the parties have still to be determined no appeal lies against it. The fact that the order decides an important and even a vital issue is by itself not material. If the decision on an issue puts an end to the suit, the order will undoubtedly be a final one."


13. In deciding the question whether the order is a final order determining the rights of parties and, therefore, falling within the definition of a decree in S. 2 (2), it would often become necessary to view it from the  Patna High Court FA No.633 of 1998 (52) dt.11-08-2017 point of view of both the parties-in the present case-the judgment-debtor and the auction-purchaser...... ............................"
 The dictum of the Apex Court in Rajni Rani Vs. Khairati Lal, (2015) 2 SCC 682, in the context of the present controversy, is relevant to be noticed where their lordships, keeping in view the principles laid down in Jethanand (supra) in detail, has ruled as follows:-
 "16.........We have referred to the aforesaid decisions to highlight that there may be situations where an order can get the status of a decree. A court may draw up a formal decree or may not, but if by virtue of the order of the court, the rights have finally been adjudicated, irrefutably it would assume the status of a decree................................................."


Learned senior counsel for the appellant in the first two appeals has led emphasis that though the right to appeal against an order in the proceeding for grant of probate or letters of administration has been conferred by Section 299 of the Indian Succession Act but such an appeal, having been expressly noticed/saved in Section 104 C.P.C., would nonetheless be an appeal under the said section of the C.P.C. Strong reliance has been placed on the Constitution Bench decision in P.S.  Patna High Court FA No.633 of 1998 (52) dt.11-08-2017 Sathappan (supra). However, the decision in P.S. Sathappan (supra) came up for consideration by the Apex Court, later on, in Fuerst Day Lawson Limited Vs. Jindal Exports Limited (2011) 8 SCC 333 where after referring to earlier decisions including the decision in Sublal Paul (supra), it has been held as follows:-
 "29. P.S. Sathappan is actually an authority on the interplay of Section 104 of the Code of Civil Procedure and the Letters Patent jurisdiction of the High Court.................................................."


30. Having, thus, put the controversy in the historical perspective, the Court in P.S. Sathappan case referred to sections, 4 and 104 of the Code and made the following observation in para 6 of the judgment. "6......To be immediately notice that now the legislature provides that the provision of this code will not affect or limit special law unless specifically excluded. The legislature also simultaneously saves, in Section 104 (1), appeals under „any law for the time being in force‟. These would include letters patent appeals."

 The above is really the kernel of the decision in P.S. Sathappan and the rest of the judgment is only an elucidation of this  Patna High Court FA No.633 of 1998 (52) dt.11-08-2017 point....................."

 (emphasis supplied) In view of the interpretation to the Constitution Bench decision in P.S. Sathappan (supra) as given above by the Apex Court in Fuerst Day Lawson (supra), we do not find force in the submission by learned senior counsel for the appellant that an appeal filed under Section 299 of the Indian Succession Act is an appeal under Section 104 C.P.C. and governed by the procedure prescribed for such appeal.
 The decision in Most. Kewala Devi (supra) has been rendered expressly relying upon the decision of the Full Bench of this Court in Sunita Kumari Vs. Prem Kumar, 2009 (3) PLJR


990. It is manifest, however, that the controversy which came up for consideration by the Full Bench in Sunita Kumari related to the nature of an order passed under the Family Courts Act, 1984 which has been enacted for adjudication of specified disputes mentioned therein and also prescribing the procedure for determination of such dispute/matter. This aspect has also been taken into notice by the Full Bench in Sunita Kumari (supra). We, therefore, find it difficult to subscribe to the proposition that the law laid down in Sunita Kumari (supra) shall have general application to all the statutory provisions providing for the  Patna High Court FA No.633 of 1998 (52) dt.11-08-2017 appeal against an 'order'.

 The fact has been accepted by learned counsel for the parties that in this court, prior to the decision in Most. Kewala Devi (supra) an appeal filed under Section 299 of the Act was treated as First Appeal and regulated by the procedure prescribed for a First Appeal and the appeal filed under Section 384 (2) of the Act was treated as Misc. Appeal and regulated by the procedure prescribed for Misc. Appeal. In the order of reference, notice has been taken to the provisions in the Patna High Court Rules having bearing upon the present issue relating to classification of the appeal (s). Even in Fuerst Dau Lawson (supra) their lordships have observed that 'normally, once an appeal reaches the High court it has to be determined according to the rules of practice and procedure of the High Court'.


The conclusive nature of an order passed in a proceeding for grant of probate or letters of administration has been envisaged in section 275 of the Indian Succession Act but while prescribing the conclusive nature of the order in a proceeding for grant of succession certificate the provision of Section 381 has been made subject to the other provisions of part-X of the Act. Noticeably, Section 373 (3) falling in part-X of the Act dilutes the conclusive nature of the order in the  Patna High Court FA No.633 of 1998 (52) dt.11-08-2017 proceeding for grant of succession certificate when such proceeding has been stated to be a summary proceeding and the Court has been authorized to grant certificate to the applicant having prima facie the best title. Learned senior counsel on behalf of the appellant in the first two appeals is, therefore, not sound in his submission that the appeal under Section 299 and section 384 (2) can be treated at par so far as the conclusiveness of the orders therein is concerned.

 At this juncture, it would be fruitful to refer to a bench decision of Karnatka High Court in Miss Pressy Pinto Vs. Rony Maxim Pinto, A.I.R. 2009 Kar. 157 where the same issue came up for consideration and decided. It has been held as follows:-
 "4. The question posed before us is whether such appeal could be termed as misc. first appeal or regular first appeal. If it is a misc. first appeal, S. 104 and O. 43, Rr. 1 and 2 of C.P.C. are applicable and if it is a regular first appeal S. 96, O.41, Rr. 1 and 2 of C.P.C. are applicable.............................."


".........When a decision is made determining the rights of the parties with regard to the matters in controversy, genuineness or otherwise of the Will, etc., such a final decision of the Court would  Patna High Court FA No.633 of 1998 (52) dt.11-08-2017 become a decree. Once the petition under Indian Succession Act becomes a contentious one, it shall be treated as a suit and even the case is numbered as original suit. The Court shall frame issues, allow the parties to lead evidence and then finally proceed to pronounce the judgment decreeing or dismissing the suit as the case may be. As per sub-section (14) of S. 2 "orders" also means formal expression of any decision of a Civil Court which is not a decree. When once the P and SC takes the form of an original suit, all the stages of suit have to be proceeded with and the ultimate result would be either decreeing the suit or dismissing the suit. The final decision of a contested matter pertaining to issues of probate or letters of administration ultimately results in the form of a decree if the case of the plaintiff is approved.


5. In other words, by virtue of S. 295 of Indian Succession Act and the definitions referred to above, the contested matter in respect of a petition for probate or letters of administration becomes a suit and by virtue of S. 299 the appeal shall be in accordance with the provisions of Code of Civil Procedure. By virtue of sub-section (2) of S. 2, S. 96, O. XLI, R.1, such contested matter  Patna High Court FA No.633 of 1998 (52) dt.11-08-2017 against the orders in a original suit pertaining to issue of probate or letters of administration has to be termed as regular First Appeal...................................."
 We have not been persuaded to take a different view than that taken in Pressy Pinto (supra). We respectfully agree to the view expressed by the Bench in the said case. Thus we come to the conclusion that the issue in Most. Kewala Devi (supra) regarding classification of an appeal under Section 299 of the Indian Succession Act has not been correctly decided. Accordingly, we answer the reference by holding that an appeal under Section 299 of the Indian Succession Act finally disposing of a contentious proceeding, as envisaged under Section 295, shall be treaded as regular First Appeal and would be governed by the procedure prescribed for such an appeal. It is further held that an appeal filed under Section 384 (2) of the Indian Succession Act shall be treated as Misc. Appeal and would be governed by the procedure prescribed for such an appeal.


As the issue decided in Most. Kewala Devi (supra) has held the field since 27.02.2012, in the interest of justice and to avoid complication and harassment to the litigants, it is directed that the appeals filed under Section 299 of the Indian Succession Act in a contentious proceeding as envisaged under  Patna High Court FA No.633 of 1998 (52) dt.11-08-2017 Section 295 of the Indian Succession Act after 27.02.2012 shall be treated for all purposes as First Appeals and similarly the appeals filed under Section 384 (2) of the Indian Succession Act shall be treated as Misc. Appeals for all purposes.

 The reference is answered, accordingly.

 (Kishore Kumar Mandal, J.) V. Nath, J: I agree.

:
 (V. Nath, J.) Devendra/-
 U


Brij Kishore Paswan & Ors vs The State Of Bihar & Ors on 18 April, 2014

Patna High Court LPA No.140 of 2014 (9) dt.18-04-2014                          1

                        IN THE HIGH COURT OF JUDICATURE AT PATNA


LETTERS PATENT APPEAL NO.140 OF 2014
                                                  IN
                    CIVIL WRIT JURISDICTION CASE NO. 18253 OF 2011
                   ======================================================
 1. Brij Kishore Paswan, Son of Late Sri Paswan Resident, resident of Village- Mangabar, P.S.- Nabinagar, District- Aurangabad
 2. Birendra Singh, Son of Late Brahm Lok Singh, Resident of Village- Kerka, P.S. Nabinagar And District- Aurangabad .... .... Appellants VERSUS
 1. The State Of Bihar through the Principal Secretary, Department Of Revenue And Land Reforms, Patna (Bihar)
 2. The District Collector, Aurangabad
 3. The District Land Acquisition Officer, Aurangabad
 4. The Additional District Magistrate, Aurangabad
 5. The Circle Officer, Block Nabinagar, Aurangabad
 6. The Bhartiye Rail Bijlee Corporation Ltd. Through Its Managing Director, New Delhi
 7. Chief Executive Officer, Nabinagar Thermal Power Project, Bhartiye Rail Bijlee Company Limited, Head Quarter First Floor, Vidyut Bhavan, Bailey Road, Patna
 8. General Manager, Nabinagar Thermal Power Project, Bhartiye Rail Bijlee Company Ltd., Site Office Satyendra Nagar, Aurangabad .... .... Respondents ====================================================== Appearance :


For the Appellant/s : Mr. Binod Kumar Singh, Advocate Mr. Anirudh Kumar Verma, Advocate For the Respondent/s : Mr. Anil Kumar Sinha,, Advocate Mr. A.C.to Advocate General ====================================================== CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI AND HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH C.A.V. ORDER (Per: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH) 9 18-04-2014 On requisition, vide letter no. ERHQ/NP/41, dated 15.05.2007, of National Thermal Power Corporation, the State Government decided to acquire lands of 9 (nine) villages for the purposes of setting up of Nabi Nagar  Patna High Court LPA No.140 of 2014 (9) dt.18-04-2014 2 Thermal Power Project, titled Bhartiya Rail Bijlee Company Limited, at Aurangabad (hereinafter referred to as „the Company‟). The nine villages, whose lands were placed under acquisition, in terms of the requisition aforementioned, are; (i) Pirauta (ii) Saleya (iii) Kajarain (iv) Egharas (v) Surar (vi) Mangabar (vii) Khaira (viii) Kerka and (ix) Dhundhua.


2. The rate of land, for payment of compensation, was determined on the basis of criteria contained in Clause (1) of the Bihar Land Acquisition Re- settlement and Rehabilitation Policy, 2007. On the basis of the criteria laid down in the said Policy, the value of the land, under acquisition, was determined at Rs. 5,16,221.83/- per acre for five villages, namely, Pirauta, Saleya, Kajarain, Egharas, Surar. The rate, determined for remaining four villages, to which the writ petitioners belonged, namely, Mangabar, Khaira, Kerka and Dhundhua, was at Rs. 2,61,317.61/- per acre and awarded sum was paid in the year 2009 itself to those, whose lands had been acquired including the writ petitioners, and it was, in the year 2009 itself, that the possession of the lands was taken over by the respondents.

 3. Almost two years after receipt of the awarded sums, some persons, including the two appellants, who belonged to village Mangabar, Khaira, Kerka and  Patna High Court LPA No.140 of 2014 (9) dt.18-04-2014 3 Dhundhua, filed a writ petition, bearing C.W.J.C. No. 18253 of 2011, seeking direction for payment of compensation for the lands acquired at the rate of Rs. 5,16,281.83/- per acre, as had been determined for lands acquired in other five villages, for the Nabi Nagar Thermal Power Project, in the light of Government Instruction No. 15/D.L.A.07/06- 923R, dated 18.05.2010, contained in Clauses 1.1 (Kha)


(ii), (iii) and (v) of Annexure-6 to the writ petition. Under the said instructions, the Government took a decision to pay maximum price fixed for any land acquired under the same transaction.

 4. It is relevant to point out herein that all the writ petitioners belonged to one or the other four villages, where the rate of land was determined at Rs.2,61,317.61/- per acre for payment of compensation.

 5. It is not the case of the writ petitioners that any of the oustees of the four villages, namely, Mangabar, Khaira, Kerka and Dhundhua, was paid at a rate higher than what was paid to the writ petitioners including the appellants.

 6. The stand of the official respondents, in CWJC No. 18253 of 2011, was that though the Government instructions, dated 18.05.2010, had indicated grant of higher rate, the said instructions were subsequently revised vide Government memo, dated 24.05.2011, clarifying  Patna High Court LPA No.140 of 2014 (9) dt.18-04-2014 4 therein that the earlier instructions of the Government, dated 18.05.2010, would be applicable to cases, where award had not been prepared under Section 11 of the Land Acquisition Act, 1894.


7. It was the further case of the respondents, in CWJC No. 18253 of 2011, that the appellants resorted to agitation and even restrained the employees of the Thermal Power Project from entering into the work site hampering, thus, the project on a number of days. The respondents, in the interest of the project, held a meeting with the dissatisfied factions and agreed to pay compensation on the same rate as had been paid to the land oustees of the 5 (five) villages, namely, Pirauta, Saleya, Kajarain, Egharas and Surar, at Rs.5,16,221.83/- per acre as against the rate of Rs. 2,61,317.61/- per acre determined for the oustees of four villages, namely, Mangabar, Khaira, Kerka and Dhundhua, though legally they had no right to make such a claim.

 8. In terms of the out of court settlement, so arrived at, the compensation, at enhanced rate, was to be paid only after the writ petitioners had entered into an agreement with the Company that no further claim for compensation would be made. The appellants, though wanted additional compensation at the revised rate, as indicated hereinbefore, refused to enter into such an  Patna High Court LPA No.140 of 2014 (9) dt.18-04-2014 5 agreement.


9. The learned single Judge noticed that a large number of beneficiaries had voluntarily accepted the compensation and only a handful of persons had resorted to arm twisting in order to extract undue advantage under the notion that the respondents would, ultimately, agree to all their demands, because it would be difficult for the respondents to abandon such a big power project. The learned single Judge observed that the appellants have already succeeded in persuading the Company to make payment at the enhanced rate, though they had received the awarded sums, in the year 2009, in terms of the provisions of the Land Acquisition Act, 1894, read with Bihar Land Acquisition Re-settlement and Rehabilitation Policy, 2007.

 10. Having arrived at the conclusion, as mentioned above, the writ petition, namely, CWJC No. 18253 of 2011, has been dismissed with observation that if the writ petitioners are desirous to get the enhanced amount, they can only be allowed to get the same in terms of the agreement, which had been entered into between the parties as an out of court settlement.


11. Aggrieved by the dismissal of the writ petition, namely, CWJC No. 18253 of 2011, two of the writ petitioners have preferred this appeal.  Patna High Court LPA No.140 of 2014 (9) dt.18-04-2014 6
 12. The appellants, in this appeal, have taken the same stand as they had taken in CWJC No. 18253 of 2011. They state that the insistence of the respondents to make payment on enhanced rate only on entering into an agreement is unlawful and violative of Sections 15 and 23 of the Contract Act, 1872, as well as Articles 14 and 300A of the Constitution of India. The appellants state that the villagers of Mangabar, Khaira, Kerka and Dhundhua had the right to receive compensation at the same rate as has been awarded to the oustees of the other five villages.

 13. On the other hand, learned Counsel for the State as well as learned Counsel appearing on behalf of the Company and Nabi Nagar Thermal Power Project have defended the order of learned single Judge as just and legal.


14. Coming to the merit of the present appeal, it needs to be made clear that the National Thermal Power Corporation, through its Deputy General Manager, made a requisition to the Government of Bihar to acquire lands of nine villages for construction of Nabi Nagar Thermal Power Project titled as Bhartiya Rail Bijlee Company Limited. A notification, under Section 4 of the Land Acquisition Act, 1894, was accordingly published, on 27.09.2008, in daily newspapers, namely, „Aaj‟ and „Piyari Urdu‟ as well as in the District Gazette, on 13.09.2008, for acquisition of the  Patna High Court LPA No.140 of 2014 (9) dt.18-04-2014 7 lands, of those villages for installation of Thermal Power Project. The nine villages, under acquisition, are: (i) Pirauta, (ii) Saleya, (iii) Kajarain, (iv) Egharas, (v) Surar,


(vi) Mangabar, (vii) Khaira, (viii) Kerka and (ix) Dhundhua. The declaration under Section 6 of the Land Acquisition Act, 1984, was made in both the newspapers on 02.10.2008. The Joint Secretary, Department of Land Reforms, Government of Bihar, directed, on 02.02.2009, the Collector to make order of acquisition, in the light of the provisions of Sections 7 and 17(1) of the Land Acquisition Act, 1894. On 16.03.2009, notices, under Section 9 of the Land Acquisition Act, 1894, were given to the land holders to make their claim. The authority concerned made enquiry under Section 11 of the Land Acquisition Act, 1894, for determination of compensation in terms of the guidelines embodied in Bihar Land Acquisition Re-settlement and Rehabilitation Policy, 2007. An enquiry was made under Section 11(1) of the Land Acquisition Act, 1894. The rate of compensation was determined on the basis of the guidelines provided in the Bihar Land Acquisition Re- settlement and Rehabilitation Policy, 2007. The compensation for the lands of five villages, namely, Pirauta, Saleya, Kajarain, Egharas and Surar was determined @ Rs. 5,16,221.83/- per acre; whereas compensation for the lands of other villages, namely, Mangabar, Khaira, Kerka  Patna High Court LPA No.140 of 2014 (9) dt.18-04-2014 8 and Dhundhua was fixed @ Rs. 2,61,317.61/- per acre. Most of the oustees of all these nine villages, including the appellants, received the awarded sum under Section 12


of all these nine villages, including the appellants, received the awarded sum under Section 12 of the Land Acquisition Act, 1894, without any demur or objection.


15. The appellants herein did not even apply for making of reference to the Civil Court in terms of the provisions of Section 18 of the Land Acquisition Act, 1894. If any such reference had been sought for, but not made, the person or persons, who had applied for making of such a reference, ought to have, at the relevant point of time, taken recourse to law. Nothing, however, was done and the award attained finality.

 16. After two years of acquisition, it was only in the year 2011 that the appellants as well as the other writ petitioners, who are residents of villages Mangabar, Khaira, Kerka and Dhundhua, began to demand compensation at the same rate as had been paid to the occupants of other five villages. The State Government, in the year 2007, came out with a policy, namely, Bihar Land Acquisition Re- settlement and Rehabilitation Policy, 2007, embodying therein uniform guidelines for determination of rate of land depending upon the nature of their use. The Government, vide its instructions, dated 18.05.2010, decided to grant compensation at the same rate to all the villagers, whose  Patna High Court LPA No.140 of 2014 (9) dt.18-04-2014 9 lands were acquired in the same transaction. The Government instructions, dated 18.05.2010, have been revised, vide Government memo, dated 24.05.2011, stating therein that the guidelines, contained therein, would be applicable to cases, where award has not been finalized.


17. There is no dispute that the appellants have received their awarded sum in the year 2009. Situated thus, it becomes clear that 2010 instructions, which stood replaced by 2011 instructions, would not ipso facto be applicable to the cases of the appellants.

 18. Though the appellants herein had received the awarded sum, the appellants, taking the law into their own hand, had forced almost closure of the work of the Thermal Power Project. The respondents, in such circumstances, agreed, under pressure, to extend the benefit, which had accrued to a person under the Government instructions, dated 18.05.2010/24.05.2011, to the appellants subject to the condition that the parities concerned would enter into an agreement to the effect that the settlement, so arrived at, was final and conclusive and no further claim for compensation would be made. The respondents were, and still are, ready to make payment at the enhanced rate of Rs. 5,16,222.83/-, which was paid to others of the said five villages.

 19. The plea of the appellants herein that  Patna High Court LPA No.140 of 2014 (9) dt.18-04-2014 10 insistence upon entering into the agreement by the respondents is unlawful and contrary to Sections 15 and 23 of the Contract Act is devoid of merit and is only to be noticed to be rejected.

 20. Section 15 of the Contract Act defines "Coercion" as committing, or threatening to commit, any act forbidden by the Indian Penal Code or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement.


21. Section 23 of the Contract Act, which enumerates as to what considerations and objects are lawful and what consideration or objects shall be recorded as unlawful, read as under:
 "23. What considerations and objects are lawful, and what not- The consideration or object of an agreement is lawful, unless- It is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy.

 In each of these cases, the consideration or object of an agreement is said to be unlawful.

 Every agreement of which the object or  Patna High Court LPA No.140 of 2014 (9) dt.18-04-2014 11 consideration is unlawful is void".
 22. It would appear from the admitted materials on record that the award was prepared in the year 2009 and the appellants accepted the same without any objection. The appellants, at no point of time, while receiving the awarded sums, complained that they had received the awarded sums under any coercion. No reference was sought for in terms of Section 18 of the Land Acquisition Act, 1894, nor was any reference made and the appellants herein, at no stage, came to this Court seeking a direction to be issued to make reference for determination of the correct sum to be paid as compensation to the appellants.


23. Further-more, I find that compensation was paid at such a rate as was warranted by Bihar Land Acquisition Re-settlement and Rehabilitation Policy, 2007. Later on, the Government, vide its instructions, dated 18.05.2010, came out with a policy to pay compensation at the same rate to all villagers, whose lands had been acquired under the same transaction. The Government revised its policy, in the year 2011, clarifying therein that the said policy would be applicable, where award had not been received. Nonetheless, as, on account of agitation launched by the appellants and the writ petitioners, the work of the Thermal Power Corporation was getting  Patna High Court LPA No.140 of 2014 (9) dt.18-04-2014 12 hampered, the respondents, under such duress, agreed for an out of court settlement subject to the condition that the appellants would enter into an agreement, as mentioned hereinbefore. By no stretch of imagination, such an offer can be said to be unlawful or one involving coercion. The learned single Judge has rightly observed that it is for the appellants either to accept or not to accept the offer of the respondents.

 24. I find that though the demand of the appellants, for payment of higher rates to which they may not have been entitled to, has been acceded to by the respondents, yet the appellants‟ grievances seem to be unending as they do not want to execute any agreement despite the fact that they could not have had any grievance, now, with respect to the rate of compensation, which the respondents have agreed to pay. The learned single Judge has noticed that except for some, a large number of oustees have accepted the awarded sums and the awards stand satisfied.


25. I agree with the view of the learned single Judge that on account of agitation launched by the appellants, the respondents have come out with an out of court settlement by making the offer to pay compensation at the enhanced rate as desired by the appellants subject to entering into agreement in larger interest of public  Patna High Court LPA No.140 of 2014 (9) dt.18-04-2014 13 project. It is up to the appellants to accept the offer by entering into an agreement or not. In case the appellants are agreeable to the offer and enter into an agreement, the respondents would fulfill their commitment of making payment at the enhanced rate without any delay.

 26. With the aforesaid observations, this appeal stands dismissed.

 27. No order as to costs.

 (Samarendra Pratap Singh, J) I. A. Ansari, J.: While completely agreeing with the conclusions arrived at, and the directions passed by, my learned brother, Samarendra Pratap Singh, J., I consider it apposite to add a few lines to make a little explicit the nature of the offer, which the respondents concerned have, in the present case, made.


2. With regard to the above, it may be pointed out that Section 18 of the Land Acquisition Act, 1894, prescribes two distinct periods of limitation for seeking reference under Section 18 of the Land Acquisition Act, 1894. If a person, who makes an application for compensation, was present or represented before the Collector at the time, when the award was made, the  Patna High Court LPA No.140 of 2014 (9) dt.18-04-2014 14 application for reference has to be filed within six weeks from the date of the award. In a case, however, where the applicant was not present or was not represented before the Collector, at the time of making of the award, Section 18(2) provides that such an application for reference shall be made within six weeks from the date of receipt of the notice or within six months from the date of the Collector's award, whichever period shall first expire.


3. The Supreme Court, in Raja Harish Chandra Raj Singh v. Deputy Land Acquisition Officer [MANU/SC/0386/ 1961 : AIR 1961 SC 1500 : (1962) 1 SCR 676], having considered the legal character of an award, which the Collector in a proceeding under the Land Acquisition Act, 1894, makes, concluded to the effect that the determination of the amount of compensation by the Collector and making of the award is, in law, nothing more than an offer or tender of the compensation to the owner of the property acquisitioned. It was held, in Raja Harish Chandra Raj Singh (supra), that if the owner accepts the offer, no further proceeding is required to be taken. Consequently, the awarded sum has to be paid and the proceedings, for compensation, shall stand concluded. If, however, the owner does not accept the offer, Section 18 gives the owner, points out the Supreme Court, in Raja Harish Chandra Raj Singh (supra), statutory right of  Patna High Court LPA No.140 of 2014 (9) dt.18-04-2014 15 having the question of adequacy of compensation determined by the District Court and whatever amount is determined by the Court, as compensation, would be binding on the owner as well as the Collector. It has been further pointed out, in Raja Harish Chandra Raj Singh (supra), that where the reference is made or sought for, the amount, judicially determined by the Court, would be the compensation payable to the owner of the property acquired and, on such determination, the acquisition proceeding would stand concluded.


4. From the above scheme of land acquisition, it becomes abundantly clear that having accepted award without seeking a reference to be made by taking recourse to Section 18 of the Land Acquisition Act, 1894, a person cannot, thereafter, agitate that the compensation, which had been paid to him, was inadequate.

 5. Had the appellants sought for a reference to be made under Section 18 of the Land Acquisition Act, 1894, and had such reference not been made, the appellants could have come to this Court by way of a writ petition under Article 226 of the Constitution of India, seeking issuance of a writ in the nature of mandamus commanding the Collector concerned to make a reference, as envisaged by Section 18 of the Land Acquisition Act, 1894. No such step has been taken by the appellants and,  Patna High Court LPA No.140 of 2014 (9) dt.18-04-2014 16 hence, the award given, in the present case, by the Collector stood finality.

 6. In the backdrop of the law, which has been pointed out above, it becomes clear that in the case at hand, when the appellants had not sought for any reference to be made in terms of Section 18 of the Land Acquisition Act, 1894, and when the appellants had, thus, accepted the awarded sums, they could not have legally turned around and armed twisted the respondents to pay further sum or sums of money as compensation.


7. Notwithstanding the fact, that the appellants had no legal right to claim any further sum or sums of money, as compensation, the respondents concerned have, under duress, offered to make, as already discussed by my learned brother, Samarendra Pratap Singh, J., further sums of money as compensation, and, hence, it is, now, for the appellants to accept or not to accept the money, which has been offered to be paid to them by the respondents concerned.

 8. I would like to further clarify that the sum of money, which the respondents concerned, has offered to pay subject to entering into an agreement, as indicated above, is nothing but a gratuitous payment and a Writ Court would not, therefore, force payment of such an amount unless the appellants enter into an agreement in  Patna High Court LPA No.140 of 2014 (9) dt.18-04-2014 17 terms of the offer, which has been made by the respondents concerned.

 (I. A. Ansari, J.) KHAN/ ANAND/ NAFR


Amiri Lal Sah And Anrs vs The State Of Bihar & Ors on 26 June, 2014

IN THE HIGH COURT OF JUDICATURE AT PATNA
                              Civil Writ Jurisdiction Case No.19011 of 2013
                 ======================================================
                 1. Amiri Lal Sah S/o Late Ayodhya Sah, resident of village - Basahiyan
                 Sheikh, P.O+P.S+ Anchal- Piprahi, District- Sheohar.
                 2. Jamiri Lal Sah S/o Late Ayodhya Sah, resident of village - Basahiyan
                 Sheikh, P.O+P.S+ Anchal- Piprahi, District- Sheohar.   .... Petitioner/s


Versus
                 1. The State of Bihar, through the Principal Secretary, Land Reforms
                    Department, Government of Bihar, Patna.
                 2. The District Magistrate- cum- Collector, Sheohar.
                 3. The District Magistrate- cum- Collector, Muzaffarpur.
                 4. The District Land Acquisition Officer, Sheohar.
                 5. The District Land Acquisition Officer, Muzaffarpur.
                 6. The Special Land Acquisition Officer, Gandak Project, Muzaffarpur.
                 7. The Rehabilitation Officer, Bagmati Project, Sitamarhi.
                 8. The Sub-Divisional Officer, Sheohar.
                 9. The Anchal Adhikari, Piprahi Anchal, District- Sheohar.
                 10. The Anchal Adhikari, Purnahiya Anchal, District- Sheohar.
                                                                         .... .... Respondent/s
                 ======================================================
                 Appearance :
                 For the Petitioner/s      :   Mr. Ritesh Kumar Narain Singh
                 For the Respondent/s        : Mr. Yogendra Pd. Sinha
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
                 ORAL ORDER5 26-06-2014 Heard learned counsel for the petitioners and learned counsel for the State.

 In this case, petitioners are claiming to be owners of the raiyati land, details of the same are as follows:-

                                                           Khata      Khesra        Area
                                                           No.        No.
                                                                                A.D.
                           Village           Basahiya      809        218           0.23


Sheikh            Anchal        800        231           0.25
                           Purnahiya         P.S.                     217           0.32
                           Sheohar No. 128                            216           0.08
                           District          Sitamarhi                215           0.08
                           Now                                        Total         0.96 D
                           Sheohar
 Patna High Court CWJC No.19011 of 2013 (5) dt.26-06-2014

 In the present case, the claim has been made that a proceeding vide Land Acquisition Proceeding No. 18/1989-1990, in view of Section 24(2) of the Right to Fair Compensation in Land Acquisition, Rehabilitation and Resettlement Act, 2013, has lapsed.

 Precisely, it appears from the record that Rehabilitation Officer, Bagmati Project, Sitamarhi for rehabilitation of villagers sent a requisition for acquisition of 0.90 acres of land of village-Basahiya Seiku, Thana-Sheohar No. 128, Pargana-Babara, PS-Piprarhi, District-Sitamarhi vide letter dated 14th June 1989.

 In pursuance of the same, the Special Land Acquisition Officer, Muzaffarpur initiated a case vide Land Acquisition Case No. 18/1989-1990 for acquisition of the aforesaid area.


In pursuance thereof, a notification u/s 4 of the Act vide letter no. 825 dated 26/8/1989 was issued and the same was published in Hindi newspaper and after that, notification u/s 6 and 9 under Land Acquisition Act was issued on 16/02/1990 and 18/6/1990 respectively with respect to the land mentioned in the Gazette notification vide Annexure-G series, as per the State, award was prepared on 18/9/1990 under section 11 of the Act. In the year 1984, there was a partition of land of Jamabandi No. 671,  Patna High Court CWJC No.19011 of 2013 (5) dt.26-06-2014 standing in the name of father of the petitioners, Late Ram Ayodhya Sah and accordingly, land in question was recorded in the name of two petitioners respectively.


The counsel for the petitioners submits that father of the petitioners had purchased the land vide registered sale deed dated 21/3/1987, Mauza- Basahiya, Tauzi -938, Khata no. 242, Khesra no. 157, area one decimal and P.S.-Piparahi, Khata no. 809, Khesra no. 218, area .23 decimal. He further submits that petitioners are in possession of the land they have no knowledge of pendency of proceeding under the Land Acquisition Act and in the year 2013, they could know, their land has been acquired for the purpose of Kabrishthan, they filed the application under the RTI Act and collected information. He further submits that the Circle Inspector, Piprahi in his report dated 14.8.2013 submitted that land in dispute is the raiyati land of the petitioners and they belong to the category of Simant Kisan.

 This Court is not required to see the status of the petitioners and only the Court has to see whether the proceeding for the land in dispute initiated in the year 1989-90 stands lapsed in view of the section 24 (2) of the Land Acquisition Act.


As per the claim of the petitioners, award has been prepared in the year 1990 but till date, it is in their possession so much so that no award money has been paid to them and to show  Patna High Court CWJC No.19011 of 2013 (5) dt.26-06-2014 their possession, they have annexed the land possession certificate issued by Circle Officer vide Annexure-4. He further submits that in view of Section 24 (2) of the new Act now proceeding will be deemed to have been lapsed and in support of the contention, petitioners have relied on two judgments reported in 2014 (3) SCC 183 (Pune Municipal Corporation Vs. Harakchand Misirimal Solanki) 2013 (8) SCC 789 (Singareni Collieries Company Limited Vs. Vemuganti Ramakrishan Rao), Civil Appeal No. 5478-5483 of 2014 decided on 07.05.2014 (Union of India Vs. Shiv Raj and others) and they also relied on judgment of this Court passed in CWJC No. 14921 of 2013 (Vinay Kumar and another Vs. the State of Bihar and others.).

 It will be relevant to examine Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as „the Act, 2013‟). For proper appreciation, it is relevant to quote Section 24 of the Act, 2013:
 "24. (1) Notwithstanding anything contained in this Act, in any case of land acquisition proceedings, initiated under the Land Acquisition Act, 1894, --


a) Where no award under section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the  Patna High Court CWJC No.19011 of 2013 (5) dt.26-06-2014 determination of compensation shall apply; or

 b) Where an award under said section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed.

 (2) Notwithstanding anything contained in sub- section(1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894, where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act.

 Provided that where an award has been made and compensation in respect of a majority of land holding has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled to  Patna High Court CWJC No.19011 of 2013 (5) dt.26-06-2014 compensation in accordance with the provisions of this Act."
 Section 24(1)(a) provides that where no award under Section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply.


Sub-section (1)(b) of Section 24 of Act, 2013 provides that where an award under section 11 has been made then such proceedings shall continue under the provisions of Land Acquisition Act as if the said Act has not been repealed. Sub Section (2) of Section 24 of the Act, 2013 provides in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 where an award under section 11 has been made five years or more prior to the commencement of new Act but the physical possession of the land has not been taken or compensation amount has not been paid, the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate fresh land acquisition proceedings in accordance with the provisions of this Act. Emphasis has been given to sub-section (2).


According to the petitioner the award has been prepared in the year 1990, possession of land has still remained with the petitioner which is apparent from land possession certificate. From the letter dated 26.10.2013 issued by the Circle Officer, Piprahi  Patna High Court CWJC No.19011 of 2013 (5) dt.26-06-2014 (Annexure-10) where it has been written that the land appertaining to Thana No. 128, Khesra Nos.218, 231, 217, 216 and 215, area 0.096 Acre have been divided in between two sons (petitioners) It has been mentioned that they are small farmers, already Kabristhan is available in that village. Details have been given and it has been said that petitioners have filed an application that they are the small persons and if their land would be taken away they will became landless and for that they have filed the present application. The Circle Officer highly recommended for release of land from acquisition.


Second aspect is also important that from the counter affidavit it appears that land acquisition proceeding was initiated in the year 1989. Accordingly notification was issued u/s 4 of L.A. Act on 26/8/89, Notification u/s 6 of L.A. Act was issued on 16.2.1990 and notice was issued under Section 9 on 6.6.1990. It appears that in the year 1990 the award was prepared, from the letter it shows that still the authorities have asked to transfer the compensation amount so that payment to be made. Letter dated 25.7.2007 shows that an award amounting to Rs.6,85,945/- has been prepared but the amount of award could not have been paid to the petitioner and requested for transfer of the amount. These facts show that though proceeding was initiated in the 1989, award has been prepared in 1990, even it may be accepted that there is  Patna High Court CWJC No.19011 of 2013 (5) dt.26-06-2014 dispute about the possession of land as there is no clear cut document to show that the petitioner is still in possession of land but one thing is clear that the award money which was prepared to pay has not been paid to the petitioner. In terms of Section 24(2) of the Act, 2013 which provides that if the award has been prepared under Section 11 of the Act five years or more prior to commencement of this Act but physical possession of the land has not been given or compensation has not been paid to the person concerned in that circumstances by operation of Section 24(2) of the Act, 2013 the whole proceeding stands lapsed. This issue came up for consideration before Hon‟ble Supreme Court in the case of Pune Municipal Corporation and another v.


for consideration before Hon‟ble Supreme Court in the case of Pune Municipal Corporation and another v. Harakchand Misirimal Solanki and others, reported in 2014(3) SCC 183. Specifically the issue was raised about the status of the proceeding which was initiated under the Old Act, award was prepared but award amount has not been paid.


The Court has considered the manner the compensation is to be paid while interpreting Section 31 of the Old Land Acquisition Act where it has been provided that the money has to be tendered to the beneficiary in the event of refusal the awarded amount has to be deposited in the court.

 In the present case it is apparently clear that money was demanded from the Government by the Land Acquisition Officer  Patna High Court CWJC No.19011 of 2013 (5) dt.26-06-2014 for payment of the same to the petitioners, admittedly without any iota of any doubt, it can safely be arrived that money has not been paid to the petitioner.

 Reliance has also been placed on Nazir Ahmad V King Emperor, reported in A.I.R. 1936 Privy Council 253(2) where the Court has held that when a thing has to be done in particular manner that thing should be done in that manner along. As there no payment of award amount, in view of provisions of Section 24(2) of the Act, 2013, the Hon‟ble Court held, land acquisition proceeding will be deemed to have lapsed.

 Again this issue came up for consideration before this Court in Union of India and others v. Shiv Raj and others in Civil Appeal Nos. 5478-5483 of 2014 where the Court has considered the scope and application of Section 24 (2) of the Act, 2013 and has approved the view taken by the Hon‟ble Supreme Court in the case of Pune Municipal Corporation (supra). It will be relevant to quote relevant portion of the aforesaid judgment:


"The provisions of the Act 2013 referred to hereinabove have been considered by a three judge bench of this court in Pune Municipal Corporation and Anr. v. Harakchand Misirimal Solanki and Ors., (2014) 3 SCC 183. In the said case, the tenure-holders had challenged the  Patna High Court CWJC No.19011 of 2013 (5) dt.26-06-2014 acquisition proceedings before the Bombay High Court by filing nine writ petitions, although two of such writ petitions had been filed before making the award and seven had been filed after the award. The land acquisition proceedings had been challenged on various grounds. The High Court allowed the writ petitions and quashed the land acquisition proceedings and issued certain directions including restoration of possession as in the said case the possession had been taken from the tenure-holders. This Court in the appeal filed by the authority for whose benefit the land had been sought to be acquired, and who had been handed over the possession as the land vested in the State, approached this Court but the Court did not enter into the merit regarding the correctness of the judgment impugned therein rather held that it was not so necessary to deal with the correctness of the judgment in view of the provisions of the Act 2013 which provide for re-compulsory acquisition of land from the very beginning. The Court held as under: "11. Section 24(2) also begins with non obstante clause. This provision has overriding effect over  Patna High Court CWJC No.19011 of 2013 (5) dt.26-06-2014 Section 24(1). Section 24(2) enacts that in relation to the land acquisition proceedings initiated under 1894 Act, where an award


enacts that in relation to the land acquisition proceedings initiated under 1894 Act, where an award has been made five years or more prior to the commencement of the 2013 Act and either of the two contingencies is satisfied, viz.;


(i) physical possession of the land has not been taken or (ii) the compensation has not been paid, such acquisition proceedings shall be deemed to have lapsed. On the lapse of such acquisition proceedings, if the appropriate government still chooses to acquire the land which was the subject matter of acquisition under the 1894 Act then it has to initiate the proceedings afresh under the 2013 Act. The proviso appended to Section 24(2) deals with a situation where in respect of the acquisition initiated under the 1894 Act an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries then all the beneficiaries specified in Section 4 notification become entitled to compensation under 2013 Act.

 XXX


XXX

 19. Now, this is admitted position that award was  Patna High Court CWJC No.19011 of 2013 (5) dt.26-06-2014 made on 31.01.2008. Notices were issued to the landowners to receive the compensation and since they did not receive the compensation, the amount (Rs. 27 crores) was deposited in the government treasury. Can it be said that deposit of the amount of compensation in the government treasury is equivalent to the amount of compensation paid to the landowners/persons interested? We do not think so. In a comparatively recent decision, this Court in Ivo Agnelo Santimano Fernandes and Ors. v. State of Goa and Anr. (2011) 11 SCC 506, relying upon the earlier decision in Prem Nath Kapur v. National Fertilizers Corpn. of India Ltd. (1996) 2 SCC 71, has held that the deposit of the amount of the compensation in the state's revenue account is of no avail and the liability of the state to pay interest subsists till the amount has not been deposited in Court.

 XXX


XXX

 21. The argument on behalf of the Corporation that the subject land acquisition proceedings have been concluded in all respects under the 1894 Act and that they are not affected at all in view of Section 114(2) of  Patna High Court CWJC No.19011 of 2013 (5) dt.26-06-2014 the 2013 Act, has no merit at all, and is noted to be rejected. Section 114(1) of the 2013 Act repeals 1894 Act. Sub-section (2) of Section 114, however, makes Section 6 of the General Clauses Act, 1897 applicable with regard to the effect of repeal but this is subject to the provisions in the 2013 Act. Under Section 24(2) land acquisition proceedings initiated under the 1894 Act, by legal fiction, are deemed to have lapsed where award has been made five years or more prior to the commencement of 2013 Act and possession of the land is not taken or compensation has not been paid. The legal fiction under Section 24(2) comes into operation as soon as conditions stated therein are satisfied. The applicability of Section 6 of the General Clauses Act being subject to Section 24(2), there is no merit in the contention of the Corporation." (Emphasis supplied)


18. The judgment of Bharat Kumar v. State of Haryana & Ors, 2014 (3) SCALE 393 was a reverse case wherein the land owner had lost before the High Court. The Court held: "Sub-section (2) of Section 24 commences with a non-obstante clause.  Patna High Court CWJC No.19011 of 2013 (5) dt.26-06-2014 It is a beneficial provision. In view of this provision, if the physical possession of the land has not been taken by the Acquiring Authority though the award is passed and if the compensation has not been paid to the land owners or has, not been deposited before the appropriate forum, the proceedings initiated under the Act, 1894 is deemed to have been lapsed." (See also: Bimla Devi & Ors. v. State of Haryana & Ors., Civil Appeal Nos. 3871-3876 of 2014 decided on 14.3.2014)


19. In order to clarify the statutory provisions of the Act 2013 with respect to such lapsing, the Government of India, Ministry of Urban Development, Delhi Division, came up with a circular dated 14.3.2014 wherein on the basis of the legal opinion of the Solicitor General of India, it has been clarified as under: "3. Interpretation of five years period: "With regard to this issue viz., interpretation of five years period two situations have been envisaged in cases where the acquisition has been initiated under the Land Acquisition Act, 1894 viz., (1) parties whose lands have been acquired have refused to accept the compensation and  Patna High Court CWJC No.19011 of 2013 (5) dt.26-06-2014 (2) parties whose lands have been acquired having just parted with physical possession of the land. However, in both the above situations, as on 1.1.2014, the period of 5 years would not have ended and in such cases, the advisory seeks to clarify that the new law shall apply only if the situation of pendency continues unchanged for a period that equals to or exceeds five years. In my view, it should be further clarified that in none of the cases the period of five years would have elapsed pursuant to an award made under Section 11 from the date of commencement of the Act and that the benefit of Section 24(2) will be available to those cases which are pending and where during pendency, the situation has remained unchanged with physical possession not being handed over or compensation not having been accepted and the period equals to or exceeds five years.


4. Limitation:
 As regards this item relating to the period spent during litigation would also be accounted for the purpose of determining whether the period of five years has to be counted or not, it should be clarified that it will  Patna High Court CWJC No.19011 of 2013 (5) dt.26-06-2014 apply only to cases where awards were passed under Section 11 of the Land Acquisition Act, 1894, 5 years or more prior to 1.1.2014 as specified in Section 24(2) of the Act, to avoid any ambiguity. Since this legislation has been passed with the objective of benefiting the land-losers, this interpretation is consistent with that objective and also added as a matter of abundant caution that the period spent in litigation challenging an award cannot be excluded for the purpose of determining whether the period of five years has elapsed or not. If the possession has not been taken or compensation has not been paid due to the challenge to the land acquisition proceedings, the pendente lite period will be included to determine the five year period and including such period if the award was made five years or more prior to the commencement of the Act, then the said acquisition proceedings will be deemed to have elapsed and fresh proceedings, if so desired, will have to be initiated in accordance with the new Act."


The objects and reasons of the Act 2013 and particularly clause 18 thereof fortify the view taken  Patna High Court CWJC No.19011 of 2013 (5) dt.26-06-2014 by this court in the judgments referred to hereinabove. Clause 18 thereof reads as under: "The benefits under the new law would be available in all the cases of land acquisition under the Land Acquisition Act, 1894 where award has not been made or possession of land has not been taken."
 This Court has also considered this aspect of the matter in C.W.J.C. No.14921 of 2013 (Vinay Kumar and others V. State of Bihar and others) where in a similar situation, the Court has dealt with the issue involved in the present case relying on the judgment of Pune Municipal Corporation (supra). It will be relevant to quote paragraph of the aforesaid judgment:


"Having considered the submission on behalf of petitioners and in view of the counter affidavit of the State, it must be held that on both the propositions, the writ petition must succeed and the entire land acquisition proceedings being Land Acquisition Case No 5 of 1984-1985 must be held to have lapsed. So far as the first contention is concerned, Section 11A of the Land Acquisition Act 1894, in no uncertain terms, lays down that award must be made within two years of the declaration under Section 6. From the facts, as noted above  Patna High Court CWJC No.19011 of 2013 (5) dt.26-06-2014 which are from the counter affidavit of the State itself, the Section 6 declaration was on 16.07.1984 and as per the notice of payment, it clearly stipulates that the award was prepared on 23.08.1986. Thus, it was clearly beyond two years. Thus, in view of the provisions of Section 11A of the Land Acquisition Act and the decision of the Apex Court in the case of Singareni Collieries Company Limited (supra), the land acquisition proceedings would be deemed to have lapsed."

 In view of the admitted position that though the award has been prepared more than five years earlier before commencement of the New Act and the award money has not been paid to the petitioner, in view of Section 24 (2) of the New Act, the land acquisition proceeding vide Land Acquisition Case No. 18 of 1989-90 is declared to have lapsed.. If the State is still in need of the land they can acquire the land in terms of provisions of the New Act.


With the aforesaid observation and direction this writ petition is allowed.
 (Shivaji Pandey, J) Mahesh/-
 U            T


Rajan Sharma vs The State Of Bihar & Ors on 6 July, 2012

IN THE HIGH COURT OF JUDICATURE AT PATNA
              Civil Writ Jurisdiction Case No.21307 of 2011
==============================================
1. Abhishek Kumar S/O Ramanand Prasad Resident Of Village- Chainpura,
P.O- Dariyapur, P.S- Naubatpur, District- Patna (Bihar), Pin Code-801109
2. Ashok Prasad S/O Rambalak Prasad Resident Of Village- Chainpura,
P.O- Dariyapur, P.S- Naubatpur, District- Patna(Bihar)
3. Yugal Kishore S/O Vishwanath Thakur Resident Of Village- Chainpura,
P.O- Dariyapur, P.S- Naubatpur, District- Patna(Bihar)
4. Pramod Mahto S/O Jaleshwar Mahto Resident Of Village- Chinpura,
P.O- Dariyapur, P.S- Naubatpur, District- Patna (Bihar)
5. Mahfooj Ansari S/O Late Noor Mohammad Ansari Resident Of Village-
Chainpura, P.O- Dariyapur, P.S- Naubatpur, District- Patna (Bihar)
6. Saiyed Hussain S/O Mohd. Nasir Ansari Resident Of Village- Chainpura,
P.O- Dariyapur, P.S- Naubatpur, District- Patna (Bihar)
7. Mohd. Muskat Ansari S/O Mustafa Ansari Resident Of Village-
Chainpur, P.O- Dariyapur, P.S- Naubatpur, District- Patna (Bihar)
8. Mintu Ansari S/O Hamid Ansari Resident Of Village- Chainpura, P.O-


Dariyapur, P.S- Naubatpur, District- Patna (Bihar)
9. Sanjay Kumar S/O Late Sharma Singh Resident Of Village- Chainpura,
P.O- Dariyapur, P.S- Naubatpur, District- Patna (Bihar)
10. Chandeshwar Singh S/O Late Devan Mauar Resident Of Village-
Chainpur, P.O- Dariyapur, P.S- Naubatpur, District- Patna (Bihar)
11. Rajni Devi W/O Late Ram Bacchan Mahto Resident Of Village-
Chainpur, P.O- Dariyapur, P.S- Naubatpur, District- Patna (Bihar)
12. Lalti Devi W/O Sidha Nath Mahto Resident Of Village- Chainpur, P.O-
Dariyapur, P.S- Naubatpur, District- Patna (Bihar)
13. Shakila Khatoon W/O Md. Salim Ansari Resident Of Village- Chainpur,
P.O- Dariyapur, P.S- Naubatpur, District- Patna (Bihar)
14. Vanaspati Devi W/O Late Ram Ashish Ram Resident Of Village-
Chainpur, P.O- Dariyapur, P.S- Naubatpur, District- Patna (Bihar)
15. Radhika Devi W/O Late Subash Thakue Resident Of Village- Chainpur,
P.O- Dariyapur, P.S- Naubatpur, District- Patna (Bihar)
16. Premi Devi W/O Late Ram Anuj Thakur Resident Of Village-
Chainpur, P.O- Dariyapur, P.S- Naubatpur, District- Patna (Bihar)


17. Shambhu Prasad S/O Gurucharan Prasad Resident Of Village-
Chainpur, P.O- Dariyapur, P.S- Naubatpur, District- Patna (Bihar)
18. Ram Babu Ram S/O Late Ram Kishun Ram Resident Of Village-
Chainpur, P.O- Dariyapur, P.S- Naubatpur, District- Patna (Bihar)
19. Bidheshwari Ram S/O Later Ram Kishun Ram Resident Of Village-
Chainpur, P.O- Dariyapur, P.S- Naubatpur, District- Patna (Bihar)
20. Ranjit Thakur S/O Sarekha Thakur Resident Of Village- Chainpur, P.O-
Dariyapur, P.S- Naubatpur, District- Patna (Bihar)
21. Jhamar Thakur S/O Late Sita Thakur Resident Of Village- Kopakal,
P.O- Dariyapur, P.S- Kopakala, District- Patna (Bihar)
22. Satish Kumar S/O Late Kamta Prasad Singh Resident Of Village-
Kopakal, P.O- Dariyapur, P.S- Kopakala, District- Patna (Bihar)
23. Sachidanand Sharma S/O Sitaram Sharma Resident Of Village-
Kopakal, P.O- Dariyapur, P.S- Kopakala, District- Patna (Bihar)
24. Akhilesh Sharma S/O Late Ramnak Singh Resident Of Village-
Kopakal, P.O- Naubatpur, P.S- Kopakala, District- Patna (Bihar)


Patna High Court CWJC No.21307 of 2011 (14) dt.06.07.2012                                  2


25. Bhim Thakur S/O Late Lagan Thakur Resident Of Village- Dariyapur,
            Chainpura, P.O- Dariyapur, P.S- Naubatpur, District- Patna (Bihar)
            26. Sudeshwar Prasad S/O Late Jagarnath Thakur Resident Of Village-
            Chainpura, P.O- Dariyapur, P.S- Naubatpur, District- Patna (Bihar)
            27. Sanjay Prasad S/O Late Baijnath Thakur Resident Of Village-
            Chainpura, P.O- Dariyapur, P.S- Naubatpur, District- Patna (Bihar)

                                                                  .... .... Petitioner/s
                                              Versus
            1. The State Of Bihar Through The Secretary Land Reforms, Govt. Of
            Bihar, Patna
            2. The Bihar Industrial Area Development Authority Through It'S
            Managing Director, Patna.
            3. The Executive Director, Biada, Patna.
            4. The Collector-Cum-District Magistrate, Patna.
            5. The Land Acquisition Officer, Patna.
            6. The Secretary, Industry Department, Bihar, Patna.
            7. M/S United Breweries Ltd., Ub City,24, Vittal, Mallya Road, Bangalore,
            Karnataka.


.... .... Respondent/s
                  ==============================================
                                               WITH
                               Letters Patent Appeal No.580 of 2008
                                                 IN
                            Civil Writ Jurisdiction Case No. 921 of 2008
            ==============================================
            Rajan Sharma, S/o. late Chulhan Singh, R/o. Vill. Kopa, Kala, P.O. + P.S.
            Naubatpur, District- Patna.
                                                                  .... .... Appellant/s
                                               Versus
            1. The State Of Bihar,
            2. District Collector, Patna,
            3. District Land Acquisition Officer, Patna,
            4. Sub-Divisional Officer, Danapur, Patna.
                                                                 .... .... Respondent/s
            ==============================================
            Appearance :
            (In CWJC No.21307 of 2011)
            For the Petitioner/s     : Mr. Ambuj Nayan Chaubey
            For the Respondent/s      : Mr. Dhurandhar Pd. Chy Sc2
            (In LPA No.580 of 2008)
            For the Appellant/s      : Mr.
            For the Respondent/s      : Mr.
            ==============================================
                CORAM: HONOURABLE MR. JUSTICE PRAKASH CHANDRA VERMA
                                        AND
                         HONOURABLE MR. JUSTICE VIKASH JAIN


AND
                         HONOURABLE MR. JUSTICE VIKASH JAIN
                                             ORAL ORDER14 06-07-2012 This writ application and L.P.A. have been filed in which challenge has been made to the Land Acquisition Proceedings initiated vide L.A. No.19 of 2007-08 whereby the State Government has acquired 96.71 acres of land to set up an industrial area at village- Kopakala, Naubatpur, District- Patna and also for quashing the allotment letter dated 03.06.2011 contained under Ref: No.2815/D issued by the Bihar Industrial Area Development Authority (hereinafter referred to as „BIADA‟) annexed as Annexure-4 by which BIADA has allotted 42 acres of land out of aforesaid 96.71 acres to United Breweries Limited for establishment of a beer industry and also for quashing the entire process of land acquisition under notification dated 10.12.2007 issued by the Land Acquisition Directorate under the Revenue and Land Reforms Department contained in Annexure-1.


2. The writ petition as well as the L.P.A. was disposed on 31.03.2012 on the concession granted to Mr. Ambuj Nayan Chaubey learned Senior Counsel appearing for the petitioner and the appellant in L.P.A. that he moved the application for review/recall of the order withdrawing his concession accordingly, the order so was recalled on 16.05.2012.

 Parties were heard on merit on the writ petition and L.P.A. and were also required to give their written argument. The  Patna High Court CWJC No.21307 of 2011 (14) dt.06.07.2012 4 written arguments filed by the respective parties are taken on record.

 3. Learned counsel for the petitioners has submitted that the allotment letter is illegal and it frustrates the very public purpose in the garb of which the acquisition was made. The government has played fraud upon the citizens of the State by allotting the land to establish a beer factory. The land acquired for Sugar Mill cannot be allotted for establishment of a beer factory. The Government cannot do business over the lands of its citizens. The action and omission on the part of the Government is violative of the right of the petitioners guaranteed under Article 14, 21 & 300A of the Constitution of India. For the acquisition purpose Land Acquisition Case No.19 of 2007-08 was instituted before the District Land Acquisition Officer, Patna. Although after preparation of award notices were issued for payment of 80% amount on the fixed dates under Section 17A of the Act but nothing has been paid so far to any of the petitioner. It is worth mentioning here that the notices were also not served upon all the petitioners.


4. It is pertinent to mention here that one Rajan Sharma being one of the victims of the aforesaid irregular acquisition proceeding, preferred CWJC No.921 of 2008  Patna High Court CWJC No.21307 of 2011 (14) dt.06.07.2012 5 challenging the acquisition. The aforesaid writ application was dismissed vide order dated 09.05.2008 against which LPA No.580 of 2008 is connected with the present writ petition.

 5. Learned counsel for the petitioners further submitted that the acquisition was made for establishment of a sugar factory which might be in public interest keeping in view the production of sugarcane and employment but nonetheless no one turned up before the Government showing its interest in establishment of Sugar Mill. The BIADA time and again advertised the availability of the acquired land for establishment of the Sugar Mill inviting interest from the interested entrepreneur but of no avail. Suddenly the BIADA for the reasons best known to the concerned authorities, issued an allotment letter dated 03.06.2011 contained in reference No.2815/D in favour of one M/S. United Breweries Ltd. Allotting thereby 42 acres of land out of aforesaid acquired land on lease of 90 years for the purpose of establishment of a Beer Industry. The BIADA charged Rs.46934748/- from M/S United Breweries Ltd., at the rate of more than Rs.11 lakhs per acre which is more than twice the compensation amount of about Rs.5.5 lakhs per acre as per the aforesaid notice.


6. It is further submitted that respondent No.7 has  Patna High Court CWJC No.21307 of 2011 (14) dt.06.07.2012 6 started changing the nature of the land. It will be very difficult for the petitioners and others to regain the nature of the land, if it would be changed in the manner by the respondent No.7 for establishing beer factory. For the purpose of establishment of either Sugar Mill or Beer Factory, there are various waste lands at nearby location but the Government deliberately choose the fertile lands of the petitioners to suit industrialist without there being any cogent public purpose. The Government ought to have returned the lands of the petitioners and others, if it did not succeed in establishing any sugar mill as was shown as the sole purpose of the public interest. Moreover, the whole acquisition process itself vitiated by virtue of non-existence of the public interest and non- payment of the compensation amount to the petitioners and others.


7. Learned counsel for the petitioners has further submitted that it is well settled by the Apex Court that Section 17(1) read with Section 17(4) confers power upon the State to acquire private property without complying with the mandate of Section 5A. These provisions can be invoked only when the purpose of acquisition cannot brook the delay of even a few weeks or months. Therefore, before excluding the application of Section 5A, the authority concerned must be fully satisfied that time of few weeks or months is likely to be taken in conducting inquiry  Patna High Court CWJC No.21307 of 2011 (14) dt.06.07.2012 7 under Section 5A which will frustrate the public purpose for which and is proposed to be acquired. The exercise of Power by the Govt. under Section 17(1) does not necessarily result in exclusion of Section 5A of the Act in terms of which any person interested in land can file objection and is entitled to be heard in support of this objection. The use of word "May" in Sub-section (4) of Section 17 makes it clear that it merely enables the Government to direct that the provisions of Section 5A would not apply to the cases covered under Sub-section (1) or (2) of Section


17. In other words, invoking of Section 17(4) is not a necessary concomitant of the exercise of power under Section 17(1). The acquisition of land for residential, commercial, industrial or institutional purposes can be treated as an acquisition for public purposes within the meaning of Section 4 but that by itself does not justify the exercise of power by the Government under Section 17(1) and/or 17(4). The Court can take judicial notice of the fact that planning, execution and implementation of the schemes relating to development of residential, commercial, industrial and institutional areas usually take few years. Therefore, the private property cannot be required for such purpose by invoking the urgency provision contained in Section 17(1). In this case exclusion of the rule of audi alteram partem embodied in Section  Patna High Court CWJC No.21307 of 2011 (14) dt.06.07.2012 8 5A (1) & (2) is not at all warranted in such matters. The Government has miserably failed in even finding out a proposer for establishment of Sugar Mill in last four years. So, it was not warranted on the part of the Government to notify the acquisition under Section 17(1) or (4) of the Act. The Government cannot run a business with the valuable lands of the Citizens and the Government/BIADA had no right to allot the lands for establishment of beer factory. The establishment of Sugar Mill would not come under the purview of public purpose.


8. In reply learned Additional Advocate General-I appearing for the respondent Nos. 2 to 6 Bihar Industrial Area Development Authority submitted that the land in question was acquired for the purpose of industrialization of the State for setting up an industry including sugar industry, in furtherance of the object of industrialization of the State, the acquisition of the land was for industrialization and the present allotment of land is also for industrialization which would lead to increase in agriculture based raw material for the brewery, it would lead to increase employment opportunities for local farmers and people and would bring in revenue to the State. Thus, the petitioners cannot contend that the acquisition and the present allotment are not for public purpose.

 9. Learned counsel for the respondent no. 2 to 6 further contended that the authority under the Bihar Industrial Area Development Act, 1974 allots lands for setting up industries which is a public purpose and once the land has been acquired and its possession taken, it is not necessary that the land should be utilized only for the purpose for which it had been acquired and not for any other public purpose later on. Thus, the contention of the learned counsel for the petitioners that as the Sugar Mill was not established the lands which have been acquired for it should be returned to them as it could be utilized only for putting up a sugar mill is not sustainable. The process of acquisition of the above land was undertaken by the Government through the Collector, Patna for the purpose of Land Bank Scheme for the Industrial Development Authority for industrialization, Sugar Mill and for important development schemes granted as is evident from the administrative approval granted by the Industries Department, Bihar vide letter bearing Memo No.1397 dated 16.03.2007. Thus, the land was to be acquired for public purpose.


10. It is further stated on behalf of the respondents that the notification under Section 4 of the Act on 10.12.2007 and declaration under Section 6 of the Act was issued on 13.12.2007, out of 105 acres of land, 6.83 acres of land were released from  Patna High Court CWJC No.21307 of 2011 (14) dt.06.07.2012 10 acquisition proceeding as the land owners of these lands were not willing to give their lands for acquisition and acquisition proceeding was initiated only with respect to the remaining 98.17 acres of land for which the land owners had expressed their consent as it clear from letter dated 04.05.2007 (Annexure-C) and Agreement (Annexure-E) with 60 farmers were also entered with recital that they have agreed to sell the land to Government. Thus, in view of the above consent of the land owners and the agreement with their consent to sell the land, it appears that the land acquisition proceeding vide Notification dated 10.12.2007 and Declaration dated 13.12.2007 was initiated by the Government under the Emergency Provisions of the Land Acquisition Act as after the said consents there remained no occasion for the land owners to raise any objection to the acquisition and thus purpose of Section 5A of the Act was no longer in existence. Therefore, the grievance of the petitioners is that there was no occasion to resort to emergency provisions under Section 17 of the Land Acquisition Act is not sustainable and both these applications are devoid of any merit is fit to be dismissed.


11. Mr. Satyabir Bharti, learned counsel for the respondent No.7 submitted that for the purpose of planned development of industrial areas and promotion of industries, the  Patna High Court CWJC No.21307 of 2011 (14) dt.06.07.2012 11 Bihar Industrial Areas Development Authority Act, 1974 has been enacted by the State Legislature under which BIADA has been constituted as an Authority for fulfillment of the aforesaid object. Section 9(1) of the aforesaid Act enables the State Government to acquire any land required for the purpose of the Authority, which shall be deemed to be "public purpose" under the land Acquisition Act, 1894. He further submitted that on 16.03.2007 (Annexure- A), the Industries Department, Government of Bihar gave an administrative approval for acquisition of 105 acres of land at Vill. Kopakalan for the purpose of Land Bank Scheme of Infrastructure Development Authority for Industrialization, setting up a sugar mill and for important development schemes. Thereafter, the Industries Department vide letter dated 17.03.2007 (Annexure-B) sent requisition to the Collector, Patna to acquire lands at Mauza Kopakalan, Block- Naubatpur measuring an area of 105 acres which was subsequently reduced to 96.71 acres of land invoking the emergent provisions as contained in Section 17(4) of the Land Acquisition Act.


12. Learned counsel for respondent No.7 submitted that a proposal to BIADA for setting up of a brewery was made. The proposed investment was to the tune of more than 200 crores and would be a State of Art brewery with zero discharge of trade  Patna High Court CWJC No.21307 of 2011 (14) dt.06.07.2012 12 effluent, thus causing absolutely no pollution. Besides the expected revenue collection to the State Government would be at least Rs. 250 crores per annum and at the same time will create employment opportunity to more than 250 people. Since, it is an agriculture based industry and barley is the major raw material which is an agricultural produce, as such it will provide opportunity for the agriculturists of the area for cultivation of barley and sale to the industry. The project upon approval by the BIADA by the impugned allotment letter dated 03.06.2011 allotted 41.97 acres of land at Industrial Plot No.A-1 in Industrial Area, Kopakala which was acquired by the impugned land acquisition proceedings. The Respondent No.7 for allotment of the aforesaid land paid a sum of Rs.4,69,34,748.00 to BIADA and possession was handed over on 06.09.2011. The Respondent No.7 additionally paid compensation to the land owners @ Rs.10.40 lacs per acre and has made payment to the tune of Rs.2.50 crores to the land owners and Rs.15 crores have already been invested in the project till date.


13. He further submitted that a delay of three years in preferring the writ application inasmuch as admittedly the acquisition proceedings was initiated in the year 2007 whereas the writ application came to be filed in the fag end of 2011 and in the  Patna High Court CWJC No.21307 of 2011 (14) dt.06.07.2012 13 meantime after acquisition, the lands was handed over to BIADA and thereafter a portion of the land to the Respondent No.7 to set up an industry in the industrial area so created by BIADA upon possession being handed over to BIADA. The writ petitioners admittedly had no objection to the acquisition proceedings and had in fact consented to the acquisition of the lands and after three years they have turned around and challenged the acquisition proceedings. Law is well settled that in matters involving challenge to the acquisition of land for "public purpose", delay in filing the writ petition should be viewed seriously and relief denied to the petitioners if he fails to offer plausible explanation for the delay in preferring the writ petition. The Courts have also held that the delay of even few years would be fatal to the cause of the petitioner, if the acquired land has been partly or wholly utilized for the public purpose. In the case of Girdharan Prasad Missir V. State of Bihar reported in (1980) 2 SCC 445 and (2002)7 SCC 712, the delay of 17 months & two years respectively were considered as a good ground for declining reliefs to the petitioner.


14. He further submitted that the lands in question were acquired upon express consent of the land owners and only after the consent had been granted by the land owners, notification  Patna High Court CWJC No.21307 of 2011 (14) dt.06.07.2012 14 under Section 4 r/w Section 17(4) was issued on 10.12.2007. It is relevant to mention here that the records as disclosed in the supplementary counter affidavit filed by Respondent No.7 in the pending writ petition and by the State respondent in the L.P.A. that except for the writ petitioner Nos.22 & 23, none of the writ petitioners as well as the sole appellant in the appeal are awardees in pursuance to the land acquisition proceedings and the awardees/owners of the lands so claimed by the writ petitioners and the appellant are persons different from the writ petitioners and appellant. In the light of the recent decision of the Hon‟ble Apex Court in the case of Radhey Shyam Vs. The State of Uttar Pradesh, as reported in (2011) 5 SCC 553, it has been sought to be contended that the acquisition for lands for industrial purpose does not justify the exercise of powers by the Government under Section 17(1) and/or 17(4). At the outset, it is stated that the facts and circumstances of the said case are absolutely different from the facts and circumstances of the present case as in the present case the acquisition have been made with consent of land owners.


15. Learned counsel for respondent No.7 submitted that law is well settled as enunciated in the celebrated judgment in the case of Kesavananda Bharti Vrs. State of Kerela (1973) 4 SCC 225 that legislation designed to secure public good and to  Patna High Court CWJC No.21307 of 2011 (14) dt.06.07.2012 15 implement the Directives under Article 39(b) and (c) should have priority over individual rights and that the Fundamental Rights were to be subordinate to Directive Principles of State Policy. It was further held that Directive Principles under Article 39(b) and

 (c) are not limited to agrarian reforms. Directives Principles are necessary for the uplift and growth of industry in the country. Industrial democracy is the necessary complement to political democracy. The State has to serve its members by organizing an avenue of consumption. This can be done by socializing of those elements in the common welfare which are integral to the well being of the community. Thus, the acquisition for upliftment and growth of industry is in terms of the Directives contained in Article 39(b) and (c) and individual rights should give way to secure public goods. In the facts and circumstances of the case, this writ petition and the appeal are fit to be dismissed.

 16. We proceed to examine the points raised by Shri Chaubey and the reply thereon.