Hari Lal vs State Of U.P. & Others
2012 Latest Caselaw 2177 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 

 
Judgment reserved on 24.04.2012
 
Judgment delivered on 25.05.2012
 

 
Civil Misc. Writ Petition No.33198 of 1994
 
Hari Lal (since deceased; through his heirs) v. State of U.P. & Ors.
 

 
Hon'ble Sunil Ambwani, J.

Hon'ble Aditya Nath Mittal, J.

1. The petitioner has prayed for a direction to quash the orders dated 15.3.1994 and 19.8.1994 passed by the Joint Secretary, Government of U.P. by which the State Government has taken a decision not to release the land measuring 15.91 acres in Village Kaudia, Pargana Anguli, Tehsil Shahganj, Distt. Jaunpur acquired by the State Government in the year 1966, for public purpose under the Land Acquisition Act, 1894 (the 'Act') and for which, it is alleged that by Government Order dated 21.7.1971 the State Government had issued directions to release the land and on which the District Magistrate, Jaunpur had by his order dated 12.2.1992 released plot no.605 area 7.97 acres in favour of its owners Shri Hari Lal, the petitioner in this writ petition .

2. The petitioner has also prayed for quashing the order dated 11.6.1992 passed by the District Magistrate, Jaunpur, and further for a direction to the State Government to treat the Government Order dated 21.7.1971 releasing the land as valid order for withdrawal from acquisition.

3. We have heard Shri S.C. Tripathi, learned counsel for the petitioner. Learned Standing Counsel appears for the State respondents.

4. A notification under Section 4 of the Land Acquisition Act was issued by the State Government on 31.5.1965 for acquisition of plot no.605 (7.37 acres); 606 (2.22 acres); 607 (4.66 acres); 608 (0.40 acres) and 609 (1.24 acres) totaling 15.91 acres in Village Kaudia, Pargana Anguli, Tehsil Shahganj, Distt. Jaunpur for 'industrial establishment'. The declaration under Section 6 of the Land Acquisition Act, 1894 (in short the Act) was published on 4.2.1966. Late Shri Hari Lal (since deceased) substituted by his heirs as P 1/1 to P 1/6 by Court's order dated 10.8.2006 was the owner of plot no.605 area 7.37 acres (new no.684).

5. It appears that the State Government on an information received from the Industries Department issued a letter dated 22.4.1971 informing the Incharge Officer, Industries, Jaunpur that the Industries Department does not require the 15.91 acres of land acquired by notification dated 4.2.1966. It required the District Industries Officer to circulate a letter to all the district offices to inform the State Government whether they require the acquired land. The Incharge Industries Officer, Jaunpur communicated this information by letter dated 14.5.1971 to the Land Acquisition Officer, Jaunpur. The District Industries Officer, Jaunpur by its letter dated 2.9.1972 informed the Commissioner and Director of Industries, U.P. that the land is needed by the State Cooperative Mill Federation and further that the land is not required by the Industries Department nor can be utilized for extension of the industrial estate at Village Jagdish Patti, which is at a distance of 20 kms. from the city of Jaunpur. On 5.9.1974 the Joint Secretary, Government of U.P. sent a letter to the District Magistrate, Jaunpur informing him that the Cooperative Department does not require the land and thus in view of the Government Order dated 21.7.1971, he may take necessary steps for releasing the land.

6. In the meantime, late Hari Lal sent representation to the State Government to release the land as it has not been put to use since its acquisition in 1966. He also claimed title over the land on the ground that it has been released by the State Government in proceedings under Section 9A (2) of the Consolidation of Holdings Act, 1963.

7. The District Magistrate by his letter dated 12.5.1992 addressed to the General Manager, District Industries Centre, Jaunpur, referred to the letters of the Incharge District Industries Officer, Jaunpur dated 14.5.1971, and the letter of the State Government dated 21.7.1971 with reference to the order of the Board of Revenue dated 28.10.1986 for releasing the land from acquisition. He also referred to the letter of the Industries Department, Government of U.P. dated 19.4.1991 in which it was stated that no development has taken place on the land since 1966, and that only an area of 3.36 acres was used to develop plots and sheds. The remaining land is still in the shape of agricultural land, and thus it will be proper to release the land. He also referred to the development of Satharia Industrial Development Authority in respect of which demi official letter dated 3.5.1997 was sent to the State Government but that no information was received nor any directions were received. In the meantime, the concerned owners and agriculturists filed a writ petition in the High Court in which interim orders were passed that if they have not been dispossessed, they shall not be dispossessed. In the consolidation proceedings held in the year 1960-61 Shri Hari Lal son of Khurbhur was found to be in possession of the entire Khasra No.605 (7.37 acres). It was further found that the land has also not been demarcated and that the District Government Counsel has also recommended for releasing the land under Section 48 of the Act. The District Magistrate consequently informed the General Manager, Industries Centre, Jaunpur that plot no.605 area 7.37 acres was released by him in favour of the farmer on 12.2.1992 and on the basis of this letter dated 12.2.1992, he has withdrawn the writ petition from the High Court on 20.2.1992. The District Magistrate observed that in view of these facts there was no need to amend the order dated 12.2.1992, and the proceedings be taken accordingly. The order dated 12.2.1992 has also been brought on record and annexed to the writ petition by which the District Magistrate in pursuance to the order of the State Government dated 21.7.1971 had taken a decision not to establish industrial establishment on the land and having obtained the report of the Tehsildar dated 23.12.1991 releasing the land in favour of Late Shri Hari Lal. He also observed in his order dated 12.2.1991 that since Shri Hari Lal has not accepted the compensation and interest, he will not be entitled to any amount in lieu of releasing the land.

8. The Joint Director (Industries) (Eastern Region), Varanasi raised an objection by his letter dated 8.6.1992 on which the District Magistrate, Jaunpur by his order dated 11.6.1992, reviewed his decision on the ground that in view of the opinion of the District Government Counsel (Civil) dated 24.1.1992, which was on record, it was apparent that the powers for releasing the land from acquisition under Section 48 of the Act is vested in the State Government and stayed the operation of his order dated 12.2.1992 until a decision is taken by the State Government in this regard. He also forwarded the request to the State Government on 23.3.1992 for releasing plot no.605 area 7.37 acres from acquisition under Section 48 of the Act. The petitioner followed up the matter in making a representation dated 16.11.1992, on which the State Government has passed the impugned orders dated 15.3.1994 and 19.8.1994, rejecting the representations of the petitioner for releasing the land and for cancelling the letter of the District Magistrate dated 12.2.1992 by which he had directed the plots to be released in favour of the petitioner.

9. Shri S.C. Tripathi, learned counsel appearing for the petitioner submits that the land was acquired by the State Government for development of industries at Jaunpur. The industries department had neither taken possession nor utilized the land for development of industries. The entire project for development of industries was given up. The Director of Industries had requested the District Industries Officer, if the land was needed by any other department, on which initially an interest was shown by the Cooperative Dairy Federation but that the Cooperative Department had not taken any interest in taking over the land. He submits that the land was acquired by notification under Section 6 dated 4.2.1966. It was not occupied and no development took place on the land for almost 30 years. Out of total area of 15.91 acres in which 3.36 acres was used for development of plots and shed, which was also not occupied. The District Magistrate had after referring to the entire background of acquisition and refusal of any department to accept the land and also having found that the land is still in possession of the farmers, who are cultivating the same, released the plot no.605 area 7.37 acres in favour of Shri Hari Lal on 12.2.1992 in pursuance to the Government Order dated 21.7.1971. He also reiterated the same decision by detailed letter dated 12.5.1992 addressed to General Manager, District Industries Centre, Jaunpur. Subsequently on an objection taken by the Joint Director Industries, Varanasi and the opinion expressed by the DGC (Civil) he had stayed his orders as power of exemption vested only in the State Government under Section 48 of the Act. The State Government acted illegally and arbitrarily in refusing to exercise the powers and in rejecting the request for exempting the land from acquisition on the ground that 3.36 acres has been utilized and developed for industries and that there is no provision for exempting the land, which has been acquired in public interest nor there is any justification for the same.

10. Shri S.C. Tripathi submits that where land was not utilized for more than 30 years after its acquisition, and plot was lying vacant for a long time. The petitioner was cultivating the land and thus, there was no justification to reject the application for exemption. He submits that all powers are vested in the State Government for being utilized for public good and that the State Government must give sufficient reasons for refusing to exercise powers for exemption. In the present case he submits that the State Government has not acted fairly in exercising its powers of exempting the land from acquisition, which has been expressly conferred on it under Section 48 of the Act.

11. In the counter affidavit of Shri R.R. Maurya, Project Manager, District Industries Centre, Jaunpur dated 24.5.1996 it is stated that the land was acquired by notification dated 4.2.1966 and is in possession of the Industries Department from 6.8.1966. The District Magistrate had released the plot on 12.2.1992 pursuant to the Government Order dated 21.7.1971, but had thereafter kept its orders in abeyance on 11.6.1992 as the power for exemption vested only in the State Government. The State Government rejected the proposal for exemption. The compensation to which the petitioner is entitled was offered by the Land Acquisition Officer. Since the petitioner refused to accept the offer of compensation, it was deposited on 14.8.1967 under the head of the revenue deposit.

12. It is further stated in the counter affidavit that if the petitioner has succeeded in getting his name recorded in the revenue papers, it will not change the complexion of the matter. The Government Orders dated 19.8.1993 and 15.3.1994 have been passed in valid exercise of power. In fact the work of developing the land for the purposes of industries is still being done on the plot in question. The petitioner did not file any objection to the assessment of compensation.

13. The matter has remained pending since 1998. In the circumstances the Standing Counsel was required to file a supplementary counter affidavit as to whether the State Government still needs the land to which a supplementary counter affidavit of Shri H.P. Singh, General Manager, District Industries Centre, Jaunpur was filed on 21st April, 2008 and in which it was stated in paragraphs 5 to 8 as follows:-

"5. That the contents of paragraphs 5 and 6 of the supplementary affidavit are not correct, hence denied. In reply it is stated that the land has been acquired by the Industries Department, so it was out of consolidation proceeding. It is totally wrong to say that the petitioner is in possession over the land in dispute. The plot in dispute is in possession of the Industries Department since 6.8.66. The compensation was afforded by the Land Acquisition Officer to the petitioner but was refused and it was deposited on 14.8.97 under the head of Revenue deposit. The petitioner may only claim compensation which has already been deposited under the head of revenue department. The petitioner has not pointed the letter dated 11.6.92 which has been cancelled by letter dt. 12.2.1992 by the District Magistrate. The work of developing the land for the purposes of Industries is still being done over the disputed land.

6. That the contents of paragraphs 7 and 8 of the supplementary affidavit are not correct as stated hence denied. The land in dispute has been acquired by the Govt. and has been handed over to the Industries department. No proceedings under section 9 of C.H. Act is valid.

7. That the contents of paragraphs 9 and 10 of the supplementary affidavit are highly objectionable hence denied. Kisan Bahi of the petitioner not been issued regarding the disputed land, but it is related to some other plot. Extract of the Malkan is related with the earlier order passed by the District Magistrate but later on the District Magistrate rejected it by order dt.11.6.92. The petitioner has not filed the order passed by the District Magistrate on 12.2.92.

8. That it is also relevant to mention here that the plot in question is in possession of the Industry Department since 6.8.66. The compensation was afforded by the Land Acquisition Officer to the petitioner but it was refused and it has been deposited on 14.8.1967 under the head of revenue deposit. The petitioner can claim only compensation and not ownership and the petitioner has not pointed out the second order passed by the District Magistrate by which the land was handed over to the Industries Department from the petitioner. The representation of the petitioner stand rejected in view of the Govt. Order dt. 19.3.93 and 15.3.94. The petitioner was afforded full opportunity of hearing before passing the order. There is no weight in the writ petition and it may be dismissed with costs."

14. Learned Standing Counsel submits that the land is in possession of the Industries Department, which is still in the process of developing the land. The plot in dispute is recorded in the name of State of U.P. Industries Department, and out of consolidation along with plot nos.606/1, 606/2, 607, 608 and 609 area 15.91 acres. The award was declared and compensation was deposited, which has not been withdrawn by the petitioner. The Industries Department still requires the land and thus there is absolutely no justification for exempting the land. A decision in this regard was taken by the State Government by the impugned orders. The petitioner has not alleged any malafides or extraneous reasons in taking the decision. The State Government has powers under Section 48 to exempt the land. Such powers has been exercised reasonably taking into account the facts and circumstances and in public interest.

15. Section 48 of the Act provides as follows:-

"48. Completion of acquisition not compulsory, but compensation to be awarded when not completed. - (1) Except in the case provided for in section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken.

(2) Whenever the Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings there under, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land.

(3) The provision of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this section."

16. The land was acquired by notification dated 04.02.1966. The Industries Department took over possession of the land on 6.8.1966. The award was made and compensation was offered by the Land Acquisition Officer to the petitioner. Since he has refused to accept the compensation, it was deposited on 14.8.1997 in revenue deposit. The land has thus vested in the State free from all encumbrances. The petitioner has no right to reoccupy it and to cultivate it. The State Government, did not release the land from acquisition in the year 1971. It had only inquired, if any department other than Industries Department had the need of the land. The District Magistrate acting on the Government Orders issued in the year 1971 passed orders on 12.2.1992 releasing the land in favour of the petitioner. He had no powers to exempt the land. He, therefore, requested the State Government to pass necessary orders on which the State Government has, after considering the recommendation of the District Magistrate, for exempting the land in a prescribed form as well as the representation of the petitioner decided not to exempt the land on the ground that a part of the land has been utilized by the Industries Department and that there was no justification for releasing the land.

17. The petitioner cannot claim reconveyance of the land as the possession of the land was taken by the Industries Department on 6.8.1966. In Tamilnadu Housing Board v. L. Chandrashekharan (dead) by LRs. & Ors., (2010) 2 SCC 786, the Supreme Court examined the scope of the powers of exemption under Section 48-B (inserted by Act 16 of 1997 by way of State amendment) and held where the purpose for which the land was acquired was still subsisting and nothing was brought on record to show that the report, which from basis and government decision was vitiated by malafides or extraneous/ irrelevant consideration, in a decision making process, or there was violation of principles of natural justice, the judicial review of the decision was unwarranted. The Supreme Court observed in paragraphs 27, 28 and 29 as follows:-

"27. There is one more reason why the impugned judgment deserves to be set aside. Undisputedly, the land of the respondents forms part of large chunk which was acquired for execution of housing scheme. The report sent by the appellant-Board to the State Government shows that the purpose for which the land was acquired is still subsisting. The respondents had neither pleaded before the High Court nor any material was produced by them to show that the report which formed basis of the Government's decision not to entertain their prayer for reconveyance of the land was vitiated by malafides or that any extraneous or irrelevant factor had influenced the decision making process or that there was violation of the rules of natural justice. Therefore, the Division Bench of the High Court could not have exercised the power of judicial review and indirectly annulled the decision contained in communication dated 18.3.1999.

28. It need no emphasis that in exercise of power under Section 48-B of the Act, the Government can release the acquired land only till the same continues to vest in it and that too if it is satisfied that the acquired land is not needed for the purpose for which it was acquired or for any other public purpose. To put it differently, if the acquired land has already been transferred to other agency, the Government cannot exercise power under Section 48-B of the Act and reconvey the same to the original owner. In any case, the Government cannot be compelled to reconvey the land to the original owner if the same can be utilized for any public purpose other than the one for which it was acquired.

29. Before concluding, we may notice the judgment of this Court in Tamil Nadu Housing Board v. Keeravani Ammal (supra). The question considered in that case was whether the Division Bench of the High Court could direct release of the acquired land which had been transferred to the appellant-Board. While setting aside the impugned order, this Court observed:

"13. It is clearly pleaded by the State and the Tamil Nadu Housing Board that the scheme had not been suspended or abandoned and that the lands acquired are very much needed for the implementation of the scheme and the steps in that regard have already been taken. In the light of this position, it is not open to the Court to assume that the project has been abandoned merely because another piece of land in the adjacent village had been released from acquisition in the light of orders of the Court. It could not be assumed that the whole of the project had been abandoned or has become unworkable. It depends upon the purpose for which the land is acquired. As we see it, we find no impediment in the lands in question being utilised for the purpose of putting up a multi-storied building containing small flats, intended as the public purpose when the acquisition was notified. Therefore, the High Court clearly erred in proceeding as if the scheme stood abandoned. This was an unwarranted assumption on the part of the Court, which has no foundation in the pleadings and the materials produced in the case. The Court should have at least insisted on production of materials to substantiate a claim of abandonment.

14. We have already noticed that in the writ petition, there are no sufficient allegations justifying interference by the Court. Mere claim of possession by the writ petitioners is not a foundation on which the relief now granted could have been rested either by the learned Single Judge or by the Division Bench of the High Court. On the materials, no right to relief has been established by the writ petitioners.

15. We may also notice that once a piece of land has been duly acquired under the Land Acquisition Act, the land becomes the property of the State. The State can dispose of the property thereafter or convey it to anyone, if the land is not needed for the purpose for which it was acquired, only for the market value that may be fetched for the property as on the date of conveyance. The doctrine of public trust would disable the State from giving back the property for anything less than the market value. In State of Kerala v. M. Bhaskaran Pillai (1997) 5 SCC 432 in a similar situation, this Court observed: (SCC p.433, para 4)

"4. The question emerges whether the Government can assign the land to the erstwhile owners? It is settled law that if the land is acquired for a public purpose, after the public purpose was achieved, the rest of the land could be used for any other public purpose. In case there is no other public purpose for which the land is needed, then instead of disposal by way of sale to the erstwhile owner, the land should be put to public auction and the amount fetched in the public auction can be better utilised for the public purpose envisaged in the Directive Principles of the Constitution. In the present case, what we find is that the executive order is not in consonance with the provision of the Act and is, therefore, invalid. Under these circumstances, the Division Bench is well justified in declaring the executive order as invalid. Whatever assignment is made, should be for a public purpose. Otherwise, the land of the Government should be sold only through the public auctions so that the public also gets benefited by getting a higher value."

16. Section 48-B introduced into the Act in the State of Tamil Nadu is an exception to this rule. Such a provision has to be strictly construed and strict compliance with its terms insisted upon. Whether such a provision can be challenged for its validity, we are not called upon to decide here."

18. In the present case we find that after valid acquisition the possession was transferred to the District Industries Officer. A part of land has been developed by carving out the plots and erecting the sheds. The land of the petitioner measuring 7.37 acres is part of the total area of 15.91 acres in 5 plots, which was acquired by the State. The State Government was of the opinion that since the part of land has been utilised and the remaining part is to be developed, there was no good reason or public purpose in releasing the land. There is nothing to show that the purpose for which the land was acquired is no longer existing or that any claim, which may have been prepared for developing the land has been abandoned. The land vests in the State and that the State has right to utilize it in any manner or to convey it to anyone. The petitioner is only entitled to the compensation, which was offered to him and has been deposited in his favour. The State Government did not exercise its powers arbitrarily, for extraneous reasons or for any malafide purposes in rejecting the request of the District Magistrate and the representation filed by the petitioner for exempting the land from acquisition. The petitioner's plea of exemption based only on the ground that he claims to be still in possession, was also considered by the State Government in exercise of its powers under Section 48 of the Act and was not admitted.

19. The writ petition is accordingly dismissed.

Dt.25.05.2012

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