State Of Jharkhand Through Its ... vs (A) Ajij Ansari
2023 Latest Caselaw 109 Jhar

                                 1

 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    L.P.A. No. 393 of 2012
                              with
                     I.A. No. 3072 of 2020
                              With
                     I.A. No. 4259 of 2020
                              ------
State of Jharkhand through its Secretary, Revenue and Land Reforms,
Project Building, P.O. + P.S-Dhurwa, District-Ranchi
                                         .....     Respondent/Appellant
                             Versus
1.(a) Ajij Ansari S/o Nasiruddin Ansari
  (b) Rasid Ansari S/o Nasiruddin Ansari
  (c) Hamid Ansari S/o Nasiruddin Ansari
  (d) Rasidhan Khatoon @ Rasidhan Bibi D/o Nasiruddin Ansari, wife of
      Md. Astul Ansari, resident of Parwatpur Gandey, Village Lakhanpur,
      P.O. Parwatpur, P.S. Ahilyapur, District-Giridih.
  (e) Kalsum Khatoon @ Kalsum Bibi D/o Nasiruddin Ansari, wife of
      Sarfuddin Ansari, resident of Village Jangalpur, P.O. Jangalpur, P.S.
     Govindpur, District-Dhanbad.
  (f) Mehrun Khatoon @ Mehrun Bibi D/o Nasiruddin Ansari, wife of
       Md. Latif Ansari, resident of Village Bhitia, P.O & P.S. Govindpur,
       District-Dhanbad.
  (g)Amina Khatoon @ Amina Bibi D/o Nasiruddin Ansari, wife of
     Vahid Ali, resident of Village, P.O. & P.S. Jangalpur, Govindpur,
     District-Dhanbad.
2.Muksud Ali
3.Aamiruddin Mian
  All sons of Late Harku Mian
4. Hirul Pazaue, Son of Late Rupen Mian
  R/o Village Kaditand, P.O-Kalyanpur, P.S-Rafwadda, District-Dhanbad
5.Jitendra Prasad, aged 45 years, S/o Sri Ram Anugrah Prasad, R/o-Q.
No.2 Women's Polytechnic, New Nagratoli, P.O. +P.S-Lalpur, Dist-
Ranchi.
6. Sujit Prasad, aged about 40 years, S/o Sri Ram Anugraha Prasad,
resident of Flat no.1204, Building no.18, behind Hayper City Hall,
Hawara City, Thane, Sandoutaugh, Maharashtra.
                                 ......            Petitioners/Respondents
7. Secretary, Drinking Water and Sanitation Department, Nepal House,
P.O + P.S-Doranda, District-Ranchi.
8.Circle Officer, Govindpur, P.O + P.S- Govindpur, District-Dhanbad.
9.Executive Engineer, Drinking Water and Sanitation Department, P.O +
P.S- Govindpur, District-Dhanbad.
                  ........ Respondents/Performa Respondents
                 ----
 CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
         HON'BLE MR. JUSTICE SUBHASH CHAND
                                  2

                           -----
For the Appellants         : Mr. Sachin Kumar, A.A.G-II
                           : Mr. Gaurav Raj, A.C to A.A.G-II
For Resp. no.1(b)          : Mr. Arpan Mishra, Advocate
For Resp. no.1(d) to 1(g) : Mr. Dharmendra Kumar Malityar, Advocate
                           -------
                          th
Order No. 37: Dated 05 January, 2023:
Per: Sujit Narayan Prasad, J.

I.A. No.4259 of 2020

1. The instant interlocutory application has been filed on behalf of

the appellant-State for substitution of the legal heirs/successors of the

deceased respondent no.1 who has died in the year 2007 leaving behind

three sons and four daughters, as per the details furnished as under

paragraph nos.3 and 6 of the interlocutory application.

2. No objection to such prayer has been made on behalf of the

learned counsel appearing for the respondents.

3. Considering the reason, the instant interlocutory application is

allowed.

4. Office is directed to make necessary correction in the cause title

of the respondent no.1 as per the details furnished as aforesaid.

L.P.A. No.393 of 2012

5. The instant intra-court appeal has been filed under Clause 10 of

the Letters Patent is directed against the order/judgment dated

15.04.2008 passed by learned Single Judge in W.P. (C) No. 5595 of

2004, whereby and whereunder the writ petition was disposed of

directing the Deputy Commissioner, Dhanbad to pay the amount of

compensation to the petitioners forthwith, if there is no other legal

impediment. The amount of compensation shall be paid to the land

owners within a period of six weeks from the date of receipt/production

of a copy of this order. If the amount of compensation is not paid within

the said period, the same shall carry interest @ 10 % per annum in

addition to the statutory interest and other admissible statutory amount

till the date of final payment.

6. The brief fact of the case as per the pleading made in the writ

petition, which is required to be enumerated for proper adjudication of

the case, reads as under:

It is the case of the writ petitioners that they are claiming their

Raiyati right over the land measuring an area of 10.33 Acres of Khata

No.95, Plot No.98 of Mouza-Bhelatand, Govindpur, Dhanbad. The said

land which was in the name of the ancestors of the writ petitioners had

been taken over by the State for the purpose of construction of Water

Treatment Plant. The case of the writ petitioners is that the said land

originally was Gair Abad Malik recorded in the Khewat of Shib Prasad

Singh. The ex-landlord by virtue of Hukumnama dated 31.03.1944 had

settled 10.33 Acres out of the total area of 21.55 Acres in favour of Md.

Harkhu Mian, son of late Chiman Mina of Village-Kasitand, P.S-

Govindpur. The said Harkhu Mian came in possession of the said land

and also paid rent to the ex-landlord. After vesting of the estate under

the provisions of the Bihar Land Reforms Act, 1950, (hereinafter

referred as the 'Act, 1950') the Zamabandi was opened in favour of the

said Harkhu Mian by order dated 11.06.1959 passed in Misc. Case

No.15 of 1960-61 and on payment of rent, receipt was issued to him.

It is the case of the writ petitioners that after the death of Harkhu

Mian, the petitioners being the successor-in- interest came in possession

of the said land. In the meanwhile, there was a revisional survey

operation in the district of Dhanbad. In the draft record of right

prepared in the said survey the petitioners were recorded as raiyat in

respect of the said land. The said entry was challenged by the State-

respondents, the appellant herein, under the provisions of Section 87(1)

of the Chotanagpur Tenancy Act, 1908 (hereinafter referred as 'C.N.T.

Act, 1908') by filing the suit being in C.N.T. Suit No.5181 of 2001. The

said suit was dismissed vide judgment and decree dated 26.02.2004.

The State-respondents then preferred appeal against the said decree

before the learned District Judge, Dhanbad being Misc. Appeal No.77

of 2004. The aforesaid appeal was also dismissed vide judgment and

decree dated 15.02.2008. According to the writ petitioners the said

decree coupled with the entry in the revenue records including

Zamabandi and entry in the record of right in the name of the

petitioners but the petitioners were dispossessed from the said land by

the State-respondents and construction of Water Treatment Plant has

been made by the respondents without paying any amount of

compensation. Though possession has been taken, till date nothing has

been paid to the petitioners.

During pendency of the writ petition, the petitioners filed one

interlocutory application being I.A. No.938 of 2008 for seeking relief

by adding further development like the decision of appeal and

acquisition of land by the respondents and for appropriate reliefs in the

writ petition.

The another interlocutory application being I.A. No.290 of 2008

was filed wherein the writ petitioners prayed for direction upon the

respondents to pay due compensation for the land forcibly acquired

from them.

The aforesaid interlocutory applications were taken for hearing

and the same were disposed of by incorporating the relief sought for in

both the interlocutory applications, i.e., I.A. No.938 of 2008 and I.A.

No.290 of 2008 making the relief sought for therein as part of the writ

petition.

Learned Single Judge has heard the matter and called upon the

respondents, in pursuance thereto, the counter affidavits have been filed

on behalf of respondent nos.2 and 6, inter alia, stating therein that the

Zamabandi of the land was opened in the name of the petitioners'

ancestors. The said land is Gair Abad Malik and was vested in the State

and became the land of the State. It has been stated in the counter

affidavit that the State has filed a suit under Section 87(1) of the C.N.T.

Act, 1908 which has been dismissed and thereafter the appeal was filed

being Misc. Appeal No.77 of 2004 but the appeal was also dismissed. It

has been admitted that the petitioners' said land was ultimately acquired

under the provisions of the Land Acquisition Act, 1894 and

compensation has been assessed and the amount of compensation has

been deposited in the office of the District Land Acquisition Officer,

Dhanbad.

Learned Single Judge after taking into consideration the fact

about dismissal of suit and appeal preferred by the State as also by

taking into consideration the fact that the land was acquired under the

provision of Act, 1894 wherein the amount of compensation has been

awarded and deposited in the office of the Land Acquisition Officer,

therefore, has allowed the writ petition with a direction to the Deputy

Commissioner, Dhanbad to pay the amount of compensation to the

petitioners forthwith, if there is no other legal impediment, within the

stipulated period of six weeks from the date of receipt/production of

copy of the order. It has further been directed that if the amount of

compensation is not paid within the said period, the same shall carry

interest @ 10% per annum in addition to the statutory interest and other

admissible statutory amount till the date of final payment. The aforesaid

order is the subject matter of the instant appeal.

7. Learned counsel appearing for the State-appellant has submitted

that the learned Single Judge while allowing the writ petition with a

direction for making payment of compensation has failed to appreciate

the very basic fact that the land, as per the record of rights, was

recorded as Gair Abad Malik and therefore, there is no reason to pass a

direction for making amount of compensation and therefore, on this

ground alone the order passed by the learned Single Judge is not

sustainable in the eye of law.

8. While on the other hand, learned counsel appearing for the

respondents-writ petitioners has submitted that the ground which has

been agitated by State is self-contradictory, since, it is the case of the

State in the counter affidavit that the land was acquired under the

provision of Land Acquisition Act, 1894. If the land is considered by

the State to be State owned land where is the occasion to acquire the

land by taking recourse of the provision of the Land Acquisition Act,

1894. It has been submitted by referring to the order passed under

Section 87(1) of the C.N.T Act, 1908 and Section 87(2) of the provision

of the Act, 1908, whereby and whereunder the aforesaid plea of the

State has been discarded by the statutory authority while discharging his

statutory duty as conferred under Section 87 of the C.N.T. Act, 1908.

It has been submitted, therefore, that if the learned Single Judge

has passed a direction to make payment of compensation in favour of

the writ petitioners on the basis of the aforesaid backdrop of the facts,

the order passed by the learned Single Judge cannot be said to suffer

from an error. Accordingly, the prayer has been made to dismiss the

instant appeal.

9. We have heard learned counsel for the parties, perused the

documents available on record as also the finding recorded by the

learned Single Judge in the impugned order.

10. The fact which is not in dispute is that the land as is being

claimed by the State is Gair Abad Malik. The State had preferred an

application before the statutory authority to exercise its power conferred

under Section 87(1) of the C.N.T. Act, 1908 for making correction in

the entry made in the record of right by inserting in the survey record as

the nature of land to be Gair Abad Land. But the aforesaid suit being

C.N.T. Suit No.5181 of 2001 was dismissed vide judgment and decree

dated 26.02.2004. The respondents had thereafter preferred appeal

against the said decree dated 26.02.2004 before the District Judge,

Dhanbad being Misc. Appeal No.77 of 2004. But the aforesaid appeal

was also dismissed vide judgment and decree dated 15.02.2008.

It has been informed that against the order passed by the District

Judge, Dhanbad in Misc. Appeal No.77 of 2004 the second appeal was

preferred being Second Appeal No.135 of 2009 but vide order dated

06.11.2015 the said second appeal was dismissed for non-prosecution.

It has been contended on behalf of the parties that for restoration of the

aforesaid second appeal a civil miscellaneous petition was filed being

C.M.P. No.765 of 2019 which is lying pending for its consideration

before this Court.

It is also not in dispute that the land in question has been acquired

by the State by taking recourse of the provision as contained under

Land Acquisition Act, 1894. It is further evident from the material

available on record that the competent authority has assessed the

quantum of compensation while fixing the Award and the amount now

has been deposited with the office of the District Land Acquisition

Officer, Dhanbad. The aforesaid land was acquired for the purpose of

construction of Water Treatment Plant.

11. The grievance of the writ petitioners is that once the land has

been acquired which was owned by the writ petitioners or by the

ancestors of the writ petitioners and now the writ petitioners are in

possession of the said land then they are entitled for compensation in

view of the provision of the Land Acquisition Act, 1894. The amount of

compensation having not been paid, therefore, the writ petition was

filed being W.P. (C) No. 5595 of 2004 wherein direction was passed on

15.04.2008 holding the writ petitioners entitled for the amount of

compensation to be paid within the specific period, failing which, the

amount will carry interest @ 10% per annum in addition to the statutory

interest and other admissible statutory amount till the date of final

payment. The aforesaid order is under challenge before this Court in

intra-Court appeal.

Learned counsel appearing for the State-appellant has taken the

ground that the nature of land as per the survey record since is Gair

Abad Malik, therefore, there was no occasion for the learned Single

Judge to pass a direction for making payment of amount of

compensation. But, the said fact has not been considered by the learned

Single Judge, therefore, the order impugned suffers from patent

illegality.

12. This Court, in view of the materials available on record,

particularly the fact that it is the State who has taken recourse for

acquisition of the land in question for the purpose of construction of

Water Treatment Plant. The question arises that when the State is

claiming the land to be owned by the State where was the occasion to

take recourse for acquisition of land by resorting to the provision of

Land Acquisition Act, 1894.

The mechanism adopted by the State for acquisition of land by

taking recourse of the provision as contained under Land Acquisition

Act, 1894 itself suggests that the land was not owned by the State. The

same has rightly been acquired, since, the State has lost in suit which

was filed by taking recourse of the provision as contained under Section

87(1) of the C. N. T. Act, 1908 while order passed in C.N.T. Suit

No.5181 of 2001 on 26.02.2004. The aforesaid order was challenged in

appeal and the same was dismissed vide judgment and decree dated

15.02.2008 passed in Misc. Appeal No.77 of 2004. However, against

the judgment and decree dated 15.02.2008 passed in Misc. Appeal

No.77 of 2004 the second appeal was preferred being Second Appeal

No.135 of 2009, but, vide order dated 06.11.2015 the said second

appeal was dismissed for non-prosecution. It has been submitted that a

civil miscellaneous petition has been filed against the Second Appeal

No.135 of 2009 which is still pending since the year 2019. Even

accepting that the aforesaid civil miscellaneous petition has been filed

for restoration of the second appeal then also the course which has been

taken by the State for acquisition of the land itself suggests that the land

is not owned by the State otherwise there was no occasion for the State

to take recourse of acquisition of the land for the purpose of

construction of Water Treatment Plant.

13. It is evident from the provision of Section 4 of the Land

Acquisition Act, 1894, wherein it has been provided that if the State

intends to acquire a land for the public purpose a notice is to be given to

the land owner. The moment a notice has been issued for acquisition of

the land in question by issuing a notice upon the land owner in view of

the provision of Section 4 that itself suggests that the State is accepting

the title of the writ petitioners over the land in question, for ready

reference, the provision of Section 4 is required to be referred herein,

which reads as under:

"4. Publication of preliminary notification and power of officers thereupon. - (1) Whenever it appears to the [appropriate Government] that land in any locality [is needed or] is likely to be needed for any public purpose [or for a company], a notification to that effect shall be published in the Official Gazette [and in two daily newspapers circulating in that locality of which at least one shall be in the regional language], and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality [(the last of the dates of such publication and the giving of such public notice , being hereinafter referred to as the date of the publication of the notification)]. (2) Thereupon it shall be lawful for any officer, either generally or specially authorized by such Government in this behalf, and for his servants and workman, -

to enter upon and survey and take levels of any land in such locality;

to dig or bore into the sub-soil;

to do all other acts necessary to ascertain whether the land is adapted for such purpose;

to set out the boundaries of the land proposed to be taken and the intended line of the work (if any) proposed to be made thereon;

to mark such levels, boundaries and line by placing marks and cutting trenches; and, where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence or jungle;

Provided that no person shall enter into any building or upon any enclosed court or garden attached to a dwelling house (unless with the consent of the occupier thereof) without previously giving such occupier at least seven days' notice in writing of his intention to do so."

14. The sine qua non for acquisition of land is to issue notice in view

of the provision of Section 4 and thereafter the other processes that is to

file an objection under Section 5A and its declaration under Section 6

and 7 of the Land Acquisition Act and thereafter a final declaration is

required to be made for acquisition of land and then the same will be

followed for passing an Award to compensate the land user.

15. Therefore, according to our considered view, if the land has been

acquired by taking recourse of acquisition of land by the State for the

purpose of construction of Water Treatment Plant, it cannot be said as is

being said by the State that the land is Gair Abad Malik otherwise the

acquisition proceeding would not have been initiated by the State for

acquisition of land for the purpose of construction of Water Treatment

Plant. Further the State has taken endeavour to get a declaration to that

effect by taking recourse of the provision of Section 87(1) of the C.N.T.

Act, 1908 but the said application was dismissed whereby and

whereunder the statutory authority has refused to enter in the record of

rights, the title of the State by making insertion of the land to be Gair

Abad Malik and the said order has been affirmed even in the appeal by

the learned District Judge, Dhanbad in an order passed in Misc. Appeal

No.77 of 2004 vide judgment and decree dated 15.02.2008.

16. This Court, after having discussed the factual aspect as also the

legal position, has considered the order passed by the learned Single

Judge, the impugned order, wherefrom it is evident that the learned

Single Judge has appreciated the fact about taking recourse of

acquisition of land by the State as also the dismissal of the application

filed under Section 87(1) of the C.N.T. Act, 1908 as also the appeal

filed under Section 87(2) of the C.N.T. Act, 1908 and thereafter the

learned Single Judge has come to the conclusion that the writ

petitioners are entitled for the amount of compensation in lieu of the

acquisition of land under the provision of the Land Acquisition Act,

1894.

17. In consequence thereof, the Deputy Commissioner, Dhanbad has

been directed to pay the amount of compensation to the petitioners

forthwith, if there is no legal impediment.

18. This Court after having discussed the factual aspects as above

and considering the order passed by learned Single Judge, is of the view

that the learned Single Judge has considered the entire aspects of the

fact in entirety and after taking into consideration all these aspects of

the matter as discussed hereinabove has passed the order, therefore, the

same requires no interference.

19. Accordingly, the instant appeal fails and is dismissed.

20. Consequently, pending interlocutory application(s), if any, also

stands disposed of.

(Sujit Narayan Prasad, J.)

(Subhash Chand, J.)

Saket/ -

A.F.R.