Chattisgarh High Court
S.Mohan And Ors vs State Of Chhattisgarh And Ors on 11 March, 2025
1
SMT
NIRMALA
RAO
2025:CGHC:12195
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WPC No. 1343 of 2012
1 - S. Mohan, son of Shri N. Sukumaran, aged about 40 years, resident
of village Kotara, Tehsil & District Raigarh, Chhattisgarh.
2. - S. Sudarshan, son of Shri N. Sukumaran, aged about 40 years,
resident of village Kotara, Tehsil & District Raigarh, Chhattigarh.
... Petitioners
versus
1 - State Of Chhattisgarh Through The Secretary, Ministry of Revenue,
Mantralaya, D.K.S Bhawan, Raipur, Chhattisgarh.
2 - The Commissioner, Raigarh Division, Raigarh, Chhattisgarh.
3. - The Collector, Land Acquisition, Raigarh, Chhattisgarh.
4. - The Sub Divisional Officer cum Land Acquisition Officer, Aarang,
Abhanpur, District Raipur, Chhattisgarh.
5. - Power Grid Corporation of India Limited (A body corporate registered
under the relevant provision of Companies Act) through its Managing
Director Village : Kotara, Tehsil & District Raigarh, Chhattisgarh.
---- Respondents
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For Petitioners : Mr. Anumeh Shrivastava, Advocate.
For Respondents/State : Mr. Pramod Shrivastava, Dy.G.A.
For Respondent No.5 : Mrs. Fouzia Mirza, Senior Advocate with
Shri Shamruddin Mirza and Ms. Harshita
Dubey, Advocates.
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Hon'ble Shri Justice Rakesh Mohan Pandey
Order on Board
11.03.2025
1. The petitioners have filed this petition seeking the following
relief(s):-
"A. A writ and/or an order in the nature of writ of
appropriate nature do issue commanding and directing
the respondents concerned to produce before this
Hon'ble Court all the relevant records pertaining to the
case of the petitioners for its kind perusal.
B. A writ and/or an order in the nature of writ of
appropriate nature do issue quashing the entire
proceedings of Case No. 09/A-82 Year 2010-11
(Annexure P-5) and award passed therein so far as it
relates to the petitioners subject property being arbitrary,
illegal, contrary to intent of the Act, 1894 and further
violative of the petitioners' fundamental, constitutional
and human rights.
C. A writ and/or an order in the nature of writ of
appropriate nature do issue restraining the respondents
from interfering with the property rights of the petitioners
including possession thereof in respect of the land in
question in any way in the facts & circumstances of
case.
D. Any other relief which this Hon'ble Court may deem fit
in the facts & circumstances of case.
E. Cost of the petition may also be awarded."
2. The facts of the present case are as under:-
(i) The petitioners were the owners of lands bearing various
survey numbers situated at Village Kotara, Patwari Circle No. 9,
Kirodimal Nagar, Tahsil and District Raigarh. After the diversion of
plots, they initiated factory operations, erected structures,
machines and equipment thereon, and in fact, started their factory
operational/manufacturing activities under the name of Binzy
Engineering Industries.
(ii) In order to expand and grow their business, the petitioners
applied to the bank for a loan and cash-credit facility. The bank,
after due satisfaction, sanctioned the cash-credit facility in their
favour. The subject lands were mortgaged with the bank as
security.
(iii) A notice under Section 9 of the Land Acquisition Act, 1894 (for
short 'the Act, 1894') was published on 2.4.2011 by the Land
Acquisition Officer, for the acquisition of lands belonging to the
petitioners.
(iv) The petitioners filed their objection before the authority
apprising the fact that the industry was situated on the subject
land and the property had been mortgaged on 21.4.2011.
(v) The Land Acquisition Officer passed an award on 15.2.2012.
The petitioners further contended that they had raised their
objection on 21.4.2011, and the matter was fixed for 5.5.2011;
however, there is no order sheet of that date. On 31.1.2011, the
objection raised by the petitioners was turned down based on a
report submitted by the Tehsildar dated 29.9.2011. The report was
never served upon the petitioners, and finally, an award was
passed on 15.2.2012. The petitioners were noticed for the
distribution of compensation under Section 12(2) of the Act, 1894
vide letter dated 22.5.2012 and again, the petitioners filed an
objection.
3. Learned counsel for the petitioners would submit that the
respondents cannot conduct an enquiry under Section 9 of the Act,
1894 in an arbitrary and capricious manner, which will defeat the
very purpose for which the said section has been incorporated. He
would further submit that once the petitioners informed the Land
Acquisition Officer about the status of the mortgage of the property,
the authority ought to have afforded an opportunity of hearing. He
would further argue that the copy of the report submitted by the
Tehsildar dated 29.9.2011 was never served upon the petitioners,
and no opportunity of hearing was afforded to counter it. He would
also submit that the respondents have taken away the right of the
property of the petitioners and they violated Article 300A of the
Constitution of India.
4. Learned counsel for the petitioners has placed reliance on the
judgment passed by the Hon'ble Supreme Court in the matter of
Union of India and Others vs. Shiv Raj and Others, reported in
(2014) 6 SCC 564 and the orders passed by this Court in the
matter of Dashrath Gupta (HUF) and Others vs. State of
Chhattisgarh and Others, in WP(C) No.1761 of 2013 vide order
dated 30.1.2015 and the matter of Gaukaran and Ors. vs. State
of Chhattisgarh and Ors. in WPC No. 791 of 2016 vide order
dated 27.11.2018.
5. On the other hand, learned Senior Counsel appearing for
respondent No.5 would oppose the submissions made by Mr.
Shrivastava. Ms. Fouzia Mirza, learned Senior Advocate would
submit that the petition filed by the petitioners is misconceived and
not maintainable, as the award has already been passed on
15.2.2012, and the possession certificate has been issued by the
Revenue Authorities. She would contend that the sub-stations
have been established on the subject land. She would further
submit that the contention with regard to the establishment of the
factory and installation of machines and equipment are incorrect
according to the report submitted by the Revenue Authorities. She
would also submit that the Revenue Authorities visited the site and
found that the subject land has been diverted but the industry is
not operational. She would contend that the petitioners could not
place on record the documents verifying the registration of the
industry or pertaining to the mortgage. She would further argue
that the petitioners have filed this petition after the possession had
been taken, therefore, the petition is not maintainable. She would
also argue that the petitioners' objection was duly considered and
decided by the Land Acquisition Officer vide order dated
31.1.2012. She would further contend that the award has already
been passed and the possession has been taken over by
respondent No.5, therefore, the petition deserves to be dismissed.
6. Mrs. Fouzia Mirza, learned Senior counsel has placed reliance on
the judgments passed by the Hon'ble Supreme Court in the matter
of Rambhai Lakhabai Bhakt vs. State of Gujarat and Others,
reported in (1995) 3 SCC 752, the matter of Talson Real Estate
(P) Ltd. vs. State of Maharashtra and Others, reported in (2007)
13 SCC 186, the matter of Swaika Properties (P) Ltd. and
Another vs. State of Rajasthan and Others, reported in (2008) 4
SCC 695 and the order passed by the Coordinate Bench of this
Court in the matter of Pyarelal vs. South Eastern Coalfields
Ltd., and Ors. in WPC No.3076 of 2016 and other connected
matters vide order dated 11.9.2017.
7. Learned counsel appearing for the State/respondents No.1 to 4
would support the contention made by learned Senior counsel
appearing for respondent No.5.
8. Heard learned counsel appearing for the respective parties and
perused the documents present on the record.
9. In the matter of Shiv Raj and Others (supra), it was held that the
Land Acquisition Collector is duty-bound to objectively consider the
arguments advanced by the objector. It is further held that the
recommendations made by the Land Acquisition Collector should
reflect the objective application of mind to the entire record,
including the objections filed by the interested persons. It was also
observed that if the successor of the Land Acquisition Officer
decides the objections without affording the opportunity of hearing,
the order would stand vitiated, as it would have been passed in
violation of the principles of natural justice. Paragraphs 15 to 18 &
20 of the report are reproduced herein below:-
"15. Therefore, Section 5-A of the Act 1894 confers a
valuable right in favour of a person whose lands are
sought to be acquired. It is trite that hearing given to a
person must be an effective one and not a mere
formality. Formation of opinion as regard the public
purpose as also suitability thereof must be preceded by
application of mind having due regard to the relevant
factors and rejection of irrelevant ones. The State in its
decision making process must not commit any
misdirection in law. It is also not in dispute that Section
5-A of the Act, 1894 confers a valuable important right
and having regard to the provisions, contained in
Article 300A of the Constitution of India has been held
to be akin to a fundamental right. Thus, the limited right
given to an owner/person interested under Section 5-A
of the Act, 1894 to object to the acquisition proceedings
is not an empty formality and is a substantive right,
which can be taken away only for good and valid
reason and within the limitations prescribed under
Section 17(4) of the Act, 1894.
16. The Land Acquisition Collector is duty-bound to
objectively consider the arguments advanced by the
objector and make recommendations, duly supported
by brief reasons, as to why the particular piece of land
should or should not be acquired and whether the plea
put forward by the objector merits acceptance. In other
words, the recommendations made by the Land
Acquisition Collector should reflect objective application
of mind to the entire record including the objections
filed by the interested persons. (See : Munshi Singh &
Ors. v. Union of India, AIR 1973 SC 1150; Union of
India & Ors. v. Mukesh Hans, AIR 2004 SC 4307;
Hindustan Petroleum Corporation Ltd v. Darius
Shahpur Chenai and Ors., AIR 2005 SC 3520; Anand
Singh & Anr v. State of U.P. & Ors., (2010) 11 SCC 242;
Dev Sharan v. State of U.P., (2011) 4 SCC 769;
Raghbir Singh Sehrawat v. State of Haryana, (2012) 1
SCC 792; Usha Stud and Agricultural Farms (P) Ltd. v.
State of Haryana, (2013) 4 SCC 210; and Women's
Education Trust v. State of Haryana, (2013) 8 SCC 99).
17.This Court in Gullapalli Nageswara Rao (supra), held:
"31. Personal hearing enables the authority
concerned to watch the demeanour of the
witnesses and clear up his doubts during the
course of the arguments, and the party appearing
to persuade the authority by reasoned argument to
accept his point of view. If one person hears and
another decides, then personal hearing becomes
an empty formality. We therefore hold that the said
procedure followed in this case also offends
another basic principle of judicial procedure."
(Emphasis added)
18. This Court in Rasid Javed & Ors. v. State of U.P. &
Anr., AIR 2010 SC 2275 following the judgment in
Gullapalli (supra), supra held that a person who hears
must decide and that divided responsibility is
destructive of the concept of hearing is too fundamental
a proposition to be doubted.
20. In view of the above, the law on the issue can be
summarised to the effect that the very person/officer,
who accords the hearing to the objector must also
submit the report/ take decision on the objection and in
case his successor decides the case without giving a
fresh hearing, the order would stand vitiated having
been passed in violation of the principles of natural
justice."
10. In the matter of Dashrath Gupta (HUF) (supra), the Coordinate
Bench has dealt with the nature of power and jurisdiction under
Article 226 of the Constitution of India to the effect that the High
Court's power is equitable and discretionary and the Court can
always take cognizance of the entire facts and circumstances and
pass appropriate directions to balance the justice. The relevant
para 9 is reproduced herein below:-
"9. The common thread flowing from the above referred
judgments of the Supreme Court with regard to the
nature of power and jurisdiction under Article 226 is to
the effect that the High Court's power is equitable and
discretionary. The High Court is required to exercise
the jurisdiction to reach injustice wherever it is found.
There are no limits to the power, the same should not
be exercised unless substantial injustice has ensued or
is likely to ensue and further that the Court can always
take cognizance of the entire facts and circumstances
and pass appropriate directions to balance the justice.
It also follows that the wide words of Article 226 of
Constitution of India are designed for service of the
lowly numbers in their grievances if the subject belongs
to the court's province and the remedy is appropriate to
the judicial process and that the High Court should not
fail to intervene when a grave error has crept in and
injustice or arbitrariness has ushered."
11.In the matter of Gaukaran (supra), the Coordinate Bench has held
that the thing which is required to be done under a statute shall be
done in the manner provided therein or not at all. It is further held
that in the matters of Land Acquisition, the mandatory provisions
are required to be followed. The relevant paras 11 & 13 are
reproduced herein below:-
"11. It is the settled law that the thing which is required
to be done under a statute shall be done in the manner
provided therein or not at all. (See Meera Sahni Vs.
Lieutenant Governor of Delhi and others, (2008) 9 SCC
177).
13. If the law mandates that the award has to be
passed within a period of 12 months from the date of
declaration under Section 19, the same has to be
followed in letter and spirit and no deviation is permitted
on plain reading of the language implied under Section
25."
12. Now coming to the judgments cited by the learned Senior Counsel
appearing for respondent No.5.
13. In the matter of Swaika Properties (P) Ltd. (supra), the Hon'ble
Supreme Court has held that where the possession has been
taken and the award has been passed, the writ petition would not
be maintainable and the petition filed after the possession having
been taken, would not be maintainable. The relevant paragraphs
15 & 16 are reproduced herein below:-
"15. Insofar as the contention regarding the possession
having not been taken is concerned, the respondents
submit that the possession of the land in dispute has
already been taken. Be that as it may, the award in
respect of the land having become final, the State
Government is vested with the powers to take
possession of the land concerned and, therefore, there
is no reason to disbelieve the claim of the State
Government that the possession had been taken
before the filing of the writ petition. Moreover, the
appellants sought enhancement of compensation by
filing reference application under Section 18 of the
Land Acquisition Act, 1894. Simultaneously, the
appellants filed writ petition before the High Court of
Rajasthan after passing of the award.
16. This Court has repeatedly held that a writ petition
challenging the notification for acquisition of land, if
filed after the possession having been taken, is not
maintainable. In the case of Municipal Corporation of
Greater Bombay v. Industrial Development Investment
Co. Pvt. Ltd. & Ors. (1996) 11 SCC 501 where K.
Ramaswamy, J. speaking for a Bench consisting of His
Lordship and S.B. Majmudar, J. held:
"29. It is thus well-settled law that when there is
inordinate delay in filing the writ petition and
when all steps taken in the acquisition
proceedings have become final, the Court
should be loath to quash the notifications. The
High Court has, no doubt, discretionary powers
under Article 226 of the Constitution to quash
the notification under Section 4(1) and
declaration under Section 6. But it should be
exercised taking all relevant factors into
pragmatic consideration. When the award was
passed and possession was taken, the Court
should not have exercised its power to quash
the award which is a material factor to be taken
into consideration before exercising the power
under Article 226. The fact that no third party
rights were created in the case is hardly a
ground for interference. The Division Bench of
the High Court was not right in interfering with
the discretion exercised by the learned Single
Judge dismissing the writ petition on the ground
of laches."
In the concurring judgment, S.B. Majmudar, J. held as
under :
"35...... Such a belated writ petition, therefore,
was rightly rejected by the learned Single
Judge on the ground of gross delay and laches.
The respondent-writ petitioners can be said to
have waived their objections to the acquisition
on the ground of extinction of public purpose by
their own inaction, lethargy and indolent
conduct. The Division Bench of the High Court
had taken the view that because of their
inaction no vested rights of third parties are
created. That finding is obviously incorrect for
the simple reason that because of the indolent
conduct of the writ petitioners land got
acquired, award was passed, compensation
was handed over to various claimants including
the landlord. Reference applications came to be
filed for larger compensation by claimants
including writ petitioners themselves. The
acquired land got vested in the State
Government and the Municipal Corporation free
from all encumbrances as enjoined by Section
16 of the Land Acquisition Act. Thus right to get
more compensation got vested in diverse
claimants by passing of the award, as well as
vested right was created in favour of the
Bombay Municipal Corporation by virtue of the
vesting of the land in the State Government for
being handed over to the Corporation. All these
events could not be wished away by observing
that no third party rights were created by them.
The writ petition came to be filed after all these
events had taken place. Such a writ petition
was clearly stillborn due to gross delay and
laches."
14. In the present case, an application was moved by respondent No.5
on 19.11.2010 before the Collector, requesting the acquisition of
land for the extension works of the existing 400/220 KV Sub
Station at Raigarh. In response to the application moved by
respondent No.5, the Land Acquisition Officer initiated a
proceeding. A notification under Section 4(1) of the Act, 1894 was
published in two newspapers, namely Jankarm and Raigarh
Sandesh on 29.1.2011. The said notification was published in the
official gazette on 11.2.2011. It appears that there were no
objections against the publication of the said notification.
Therefore, a hearing under Section 5(A) of the Act, 1894 was not
initiated. A notification under Section 6 of the Act, 1894 was
published in the official gazette on 9.4.2011 and was widely
circulated in the local newspapers, namely Jankarm on 25.3.2011
and Kelo Pravah on 27.3.2011. A notification under Section 9 of the
Act, 1894 was issued on 2.4.2011, and the petitioners submitted
their objections. The Land Acquisition Officer called for a report
from the concerned Tehsildar, Revenue Inspector and Patwari. The
Revenue Authorities submitted their report after a spot inspection,
observing categorically that only a brickwork structure,
admeasuring 7.9 m x 4.1m total 39.77 sq.m. had been constructed
on the land in question. The case was fixed for hearing before the
Land Acquisition Officer on 5.5.2011 but there is no order-sheet of
the said date. On 31.1.2012, the Land Acquisition Officer
considered the objection raised by the petitioners in detail and
concluded that:-
(i) the subject land is a diverted land;
(ii) the objectors have not placed on record the registration
certificate of the factory;
(iii) They have not produced the permission granted by the
industries department;
(iv) They have not produced the documents relating to the
grant of loan and mortgage of property. The authority
further held that as per the report of the Revenue
Authorities, no industry has been established and only
39.77 sq.m. area is available.
15. The Land Acquisition Officer thereafter passed an award on
15.2.2012 and this petition was filed on 20.7.2012 whereas
possession of the property was taken prior to the filing of this
petition.
16. In the matter of Shiv Raj (supra), the objections filed by the
tenure-holders under Section 5-A of the Act, 1894 were not
considered at all and on that premise, the Hon'ble Supreme Court
held that the Land Acquisition Officer is duty-bound to objectively
consider the arguments advanced by the objector. In the present
case, the Land Acquisition Officer called for a report from the
Revenue Authorities and considered all objections raised by the
petitioners in its order dated 31.1.2012. Therefore, the facts of the
present case are distinguishable from the cited case.
17. In the matter of Dashrath Gupta (supra), it is held that the nature
of power and jurisdiction under Article 226 of the Constitution of
India is equitable and discretionary.
18. In the matter of Gaukaran (supra), it is held that the provisions of
Land Acquisition are mandatory and are required to be followed
and deviation is not permissible.
19. In the present case, the Land Acquisition Officer invited the
objection and decided it in an objective manner vide order dated
31.1.2012. A perusal of the order would make it clear that the
petitioners failed to produce relevant documents to establish their
claim.
20. Admittedly, the petitioners filed this petition after possession having
been taken by the respondent authorities and after passing of the
award and thus, according to the law laid down by the Hon'ble
Supreme Court in the matter of Swaika Properties (P) Ltd.,
(supra), this petition is not maintainable.
21. Taking into consideration the above-discussed facts and the law
laid down by the Hon'ble Supreme Court and this Court, this
petition fails and is hereby dismissed. No cost(s).
Sd/-
(Rakesh Mohan Pandey)
Judge
Nimmi
