Patna High Court
Sur Bihari Mandal vs The State Of Bihar on 13 August, 2024
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.10974 of 2019
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Sur Bihari Mandal S/o Late Kaushiki Mandal Vill.- Hariyari, Phulparas, P.s.-
Phulparas, Distt.- Madhubani
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal secretary, Revenue and Land
Reforms Department, Govt. of Bihar, Patna
2. The Special Land Acquisition Officer Western Koshi Canal at Darbhanga
3. The Executive Engineer Western Koshi Canal Division, Jhanjharpur, Distt.-
Madhubani
4. The Assistant Engineer Western Koshi Canal Division, Jhanjharpur, Distt.-
Madhubani
5. The Junior Engineer Western Koshi Canal Division, Jhanjharpur, Distt.-
Madhubani
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Rajiv Kumar Verma, Sr. Advocate with
Mr. Rohan Verma and
Mr. Prashant Sinha, Advocates
For the Respondent/s : Mr. Sajid Salim Khan, SC 25 with
Ms. Prakritita Sharma, AC to SC 25
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CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
ORAL JUDGMENT
Date : 13-08-2024
Heard Mr. Rajiv Kumar Verma, learned Senior
Advocate representing the petitioner and Mr. Sajid Salim Khan,
learned Standing Counsel for the State.
2. During the pendency of the writ petition, the sole
petitioner, Sur Bihari Mandal died on 24.10.2023 leaving behind
two sons and three grandsons, out of which one grandson
Patna High Court CWJC No.10974 of 2019 dt.13-08-2024
2/15
namely, Aditya Kumar is substituted with consent of rest of the
legal heirs vide order dated 25.07.2024.
3. The petitioner has invoked the jurisdiction of this
Court under Article 226 of the Constitution seeking a direction
to hold and declare the acquisition of land of the petitioner
appertaining to Khata No. 42, Khesra Nos. 888, 887, 886, 885
and 1010 situated in village Hariyari, Block and Sub Division-
Phulparas, District Madhubani pursuant to Land Acquisition
Case No. 309/06-07 in connection with Koshi Project,
Darbhanga stood lapsed in terms of Section 24(2) of the Right
to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 (hereinafter referred
to as the 'Act 2013') on account of the fact that the petitioner
has neither been paid compensation till date nor the actual
physical possession of the land has been taken by the respondent
authorities. The petitioner also sought a declaration to hold the
petitioner entitled for payment of compensation in terms of the
Act 2013.
4. In the year 2007, the Government of Bihar came up
with a project in the name and style of "Goriyari Minor Canal".
As per the plan, the project passes through the middle of
Hariyari village, which is a densely populated area of the
Patna High Court CWJC No.10974 of 2019 dt.13-08-2024
3/15
village. Apprehending the dislocation from their house and
chance to put in great loss due to cutting down of their mahogni
and mango orchard resulting into damage to the environment,
the petitioner along with others represented before various
authorities, particularly the Special Land Acquisition Officer,
Koshi Project, Darbhanga, District Magistrate, Madhubani as
well as the Chief Minister requesting them that if the road of the
project is slightly deviated, the Government will neither have to
acquire any land nor to pay any compensation to any person, as
the deviated road passes through the Government land and that
will also protect the major population of village Hariyari from
being dislocated and destroyed.
5. Despite pendency of the aforenoted representation
for slight deviation of the project/road, the Special Land
Acquisition Officer, Koshi Project, Darbhanga issued a notice
dated 30.04.2010 under Section 12(2) of the Land Acquisition
Act 1894 (hereinafter referred to as the 'Act 1894') informing
the petitioner that a compensation of Rs.1,32,538/- is to be paid
to the petitioner under award prepared under Section 11 of the
Act 1894. The petitioner along with others being aggrieved by
the inaction of the respondent authorities in not deviating the
road of the project approached before this Court in CWJC No.
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4/15
10485 of 2010 wherein notice dated 30.04.2010 was also
questioned. The aforesaid writ petition came to be disposed of
vide order dated 12.07.2010 with a direction to the Minor
Irrigation Department and the Engineers to consider the viability
of shifting the proposed canal. The objection filed by the
petitioner was directed to be referred by the Land Acquisition
Officer to the Department before he disposes the objection filed
on behalf of the petitioner. The order also stipulates that without
disposal of objection, no steps can be taken under Section 6 of
the Land Acquisition Act.
6. The petitioner of the said writ petition having found
no compliance of the order dated 12.07.2010 moved this Court
by filing contempt application bearing MJC no. 1371 of 2015.
The contempt proceeding was disposed of vide order dated
07.08.2018
with an observation that the notification under
Section 6 of the Land Acquisition Act had already been
published in the district gazette on 04.01.2008, i.e., much prior
to filing of the writ petition and passing of an order upon the
same by this Court on 12.07.2010. Accordingly, the contempt
petition stood dismissed. A review petition bearing Civil Review
No. 218 of 2016 was also filed which came to be disposed of
after having found no requirement of interfering with the order
Patna High Court CWJC No.10974 of 2019 dt.13-08-2024
under review dated 12.07.2008.
7. Adverting to the aforesaid facts, Mr. Verma, learned
Senior Advocate vigorously contended that during the pendency
of the writ petition, the new Act, namely Right to Fair
Compensation and Transparency in Land Acquisition
Rehabilitation and Resettlement Act, 2013 came into force.
Section 24(2) of the said Act provides that in case of land
acquisition proceeding initiated under the Act 1894, wherein an
award under Section 11 has been made five years or more prior
to the commencement of this Act but physical possession of the
land has not been taken or compensation has not been paid, the
said proceeding shall be deemed to have lapsed and the
appropriate government shall initiate the proceeding of land
acquisition afresh in accordance with the Act 2013.
8. Learned Senior Advocate representing the petitioner
contended with all vehemence that the petitioner is still in
physical possession of the land in question and till date he has
not been paid any compensation against the acquisition of his
land, therefore, in such circumstances, the acquisition of the
land in question vide L.A. Case No. 309/06-07 stood lapsed in
terms of Section 24(2) of the Act 2013.
9. The matter was earlier taken up on 21.06.2019,
Patna High Court CWJC No.10974 of 2019 dt.13-08-2024
when this Court having found the writ petition requires
interpretation of Section 24(2) of the Act 2013 in light of the
order of the Hon'ble Supreme Court reported in the case of
State of Haryana v. G.D. Goenka Tourism Corporation Ltd.,
(2018) 3 SCC 585 has directed to place the matter after final
decision of the Larger Bench of the Supreme Court.
10. Two Interlocutory Applications have been filed;
I.A. No. 1 of 2024 is for substitution of the legal heirs of the
sole petitioner and another application bearing I.A. No. 2 of
2024 for stay of acquisition proceeding in terms of the order
dated 21.06.2019. Adverting to the averments made in I.A. No.
2 of 2024, learned Senior Advocate further contended that after
a lapse of five years of the order passed by this Court dated
21.06.2019 and 16 years of the notification dated 04.01.2008,
the acquisition proceeding has once again commenced despite
the fact that the entire land acquisition proceeding has already
been lapsed in terms of Section 24(2) of the Act 2013, inasmuch
as neither the possession was taken nor the compensation was
paid. Learned Senior Advocate also urged that the proceeding of
the land acquisition was initiated way back in the year 2006-07
which was duly objected by the villagers including the
petitioner that the same is not viable or in fact against the
Patna High Court CWJC No.10974 of 2019 dt.13-08-2024
interest of villagers. Even a slight deviation of the alignment
will not only save the major population of the village Hariyari
and its ecology from being dislocated and destroyed but will
also save the public exchequer. However, till date no decision in
this regard has been taken. Once the very purpose of the land
acquisition has been defeated after a lapse of 18-19 years, the
authorities once again commenced the execution of the project
without payment of compensation or taking over of possession
knowing very well that land acquisition proceeding has already
stood lapsed. The learned Senior Advocate drew the attention of
this Court to Section 24(2) of the Act 2013 and also placed the
relevant paragraphs of the judgment rendered by the Five
Judges Bench of the Apex Court in the case of Indore
Development Authority vs. Manoharlal, (2020) 8 SCC 129.
11. Per contra, learned Advocate for the State
countering the submissions advanced on behalf of the petitioner
contended that primarily the writ petition suffers from gross
delay in challenging the validity of acquisition proceeding,
hence it does not require any interference. To butress the
aforesaid submission, reliance has been placed on a judgment
rendered by the Hon'ble Supreme Court in the case of Andhra
Pradesh Industrial Infrastructure Corporation Limited vs.
Patna High Court CWJC No.10974 of 2019 dt.13-08-2024
Chinthamaneni Narasimha Rao, (2012) 12 SCC 797.
Referring thereto, learned Government Advocate contended that
in the aforenoted case the Hon'ble Court taking note of the
admitted fact that the declaration under Section 6 of the Act was
made on 07.08.1996 and the award was made on 07.01.1998. A
petition challenging the validity of declaration under Section 6
of the Act on the ground that it was declared beyond the period
specified under Section 6 of the Act was filed in November,
1998. The Hon'ble Supreme Court looking to the facts of the
case and in the light of the settled law held that the objection
filed by the land owners was at a belated stage as the validity of
declaration under Section 6 was challenged two years after its
issuance and after possession of the land had been taken, is
barred by gross delay. The Hon'ble Supreme Court also
observed that if the land owners are aggrieved by the acquisition
proceeding they must challenge the same at least before an
award is made and possession of the land is taken by the
Government authorities.
12. Learned Government Advocate further contended
that admittedly in the case in hand the notification under Section
6 of the Land Acquisition Act, 1894 had been published in the
district gazette on 04.01.2008 and award has been been declared
Patna High Court CWJC No.10974 of 2019 dt.13-08-2024
on 17.04.2010. Further the land ownership of the acquired land
has been handed over/delivered to the requisitioning officer vide
certificate of possession dated 08.05.2010 and all the more it is
the case of the petitioner that a notice under Section 12(2) of the
land Acquisition Act, 1894 was served upon the petitioner that a
compensation to the tune of Rs.1,32,538/- was assessed to be
paid to the petitioner under award prepared under Section 11 of
the Act 1894. In the aforesaid premise, the learned Advocate
thus submitted that once the possession has already been handed
over to the requisitioning officer, the twin requirement as
contemplated under Section 24(2) of the Act, 2013 is not
fulfilled. The Deemed lapse of proceeding initiated under 1894,
Act is occasioned only when two conditions specify in Section
24(2) are cumulatively satisfied i.e., (A) possession of the
acquired land has not been taken, and (B) compensation has not
been paid. Even if one of the condition is not satisfied, the
acquisition proceeding shall not lapse is the mandate of Five
Judges Bench of the Hon'ble Supreme Court in the case of
Indore Development Authority (supra); is the contention of the
learned Advocate for the State. Learned Government Advocate
has further taken this Court to paragraph No. 246 of the
aforenoted decision and contended that when the State has
Patna High Court CWJC No.10974 of 2019 dt.13-08-2024
acquired land and an award has been passed, land vest free from
all encumbrances in the State Government. The act of vesting of
the land in the State is with possession, any person retaining
possession, thereafter has to be treated as trespasser and has no
right to possess the land which vests in the State free from all
encumbrances.
13. This Court has anxiously heard the learned
Advocate for the respective parties and also carefully perused
the materials available on record. So far the plea of the
petitioner with regard to shifting of the alignment of the project
is concerned, the same does not find any merit consideration as
it is the Project Engineers who are professionally managed
having expertise in the field of development and maintenance of
canals, roads and other infrastructures, the Courts are not
equipped to decide viability and feasibility of particular project
and whether particular alignment would subserve larger public
interest. In an identical matter in the case of Union of India vs.
Kushala Shetty reported in (2011) 12 SCC 69 where number of
land owners filed objections claiming higher compensation by
asserting that after acquisition, his/her remaining land will
become useless and will not be able to carry out any
improvement. Apart from some of the landowners filed further
Patna High Court CWJC No.10974 of 2019 dt.13-08-2024
objection and pleaded that their land/property may not be
acquired and the government land lying just opposite the land
proposed to be acquired may be used for widening the national
highways. Some others claiming that they had constructed
shops, etc. and same can be saved if alignment of the highway
was slightly changed. The Hon'ble Supreme Court in its
penultimate paragraph no. 28 has held as follows:
"28. Here, it will be apposite to mention that NHAI
is a professionally managed statutory body having
expertise in the field of development and
maintenance of national highways. The projects
involving construction of new highways and
widening and development of the existing
highways, which are vital for the development of
infrastructure in the country, are entrusted to
experts in the field of highways. It comprises of
persons having vast knowledge and expertise in the
field of highway development and maintenance.
NHAI prepares and implements projects relating to
development and maintenance of national highways
after thorough study by experts in different fields.
Detailed project reports are prepared keeping in
view the relative factors including intensity of
heavy vehicular traffic and larger public interest.
The courts are not at all equipped to decide upon
the viability and feasibility of the particular project
and whether the particular alignment would
subserve the larger public interest. In such matters,
the scope of judicial review is very limited. The
court can nullify the acquisition of land and, in the
rarest of rare cases, the particular project, if it is
found to be ex facie contrary to the mandate of law
or tainted due to mala fides. In the case in hand,
neither has any violation of mandate of the 1956
Act been established nor has the charge of malice
in fact been proved. Therefore, the order under
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challenge cannot be sustained."
14. Now coming to the merits of this case, this Court
also finds that some dates and events are admitted. The land
acquisition proceeding was initiated pursuant to Land
Acquisition Case No. 309/06-07. The notification under Section
6 of the Land Acquisition Act was published in the district
gazette on 04.01.2008, even prior to filing of the first writ
petition i.e., CWJC No. 10485 of 2010. After publication of the
notification under Section 6 , an award has also been declared
under Section 11 of the Act 1894 on 17.04.2010 and thereafter
possession of the acquired land has been handed over/delivered
to the requisitioning officer vide certificate of possession dated
08.05.2010. The factum of issuance of notice under Section
12(2) of the Act, 1894 is admitted by the petitioner in paragraph
no. 7 of the writ petition. Thus, once the aforenoted facts reveal
that the possession of the land has been handed over to the
requisitioning officer; two conditions in Section 24(2) which are
required to be satisfied cumulatively in order to hold and declare
deemed lapse of proceeding does not arise.
15. The Five-Judges Bench of the Hon'ble Supreme
Court in the case of Indore Development Authority (supra) has
held in uncertain terms that the deemed lapse of the land
Patna High Court CWJC No.10974 of 2019 dt.13-08-2024
acquisition proceeding under Section 24(2) of the Act, 2013
takes place where due to inaction of the authorities for five
years or more prior to the commencement of the said Act, the
possession of the land has not been taken nor compensation has
been paid. In case possession has been taken, compensation has
not been paid, then there is no lapse. Similarly, if the
compensation has been been paid, possession has not been taken
then there is no lapse.
16. In case in hand the record clearly suggests that the
possession has already been handed over to the requisitioning
officer which fact has also been taken note of by this Court in
the earlier round of litigation in MJC No. 1371 of 2015 and
Civil Review No. 218 of 2016. The afore noted orders have
been marked as Annexures-5 and 6 to the writ petition. The Five
Judges Bench in the case of Indore Development Authority
(supra) while dealing with the issue of mode of taking
possession under the 1894 Act has also made it clear that when
the State Government acquires land and draws up a
memorandum of taking possession, that amounts to taking
physical possession of the land. On the large chunk of property
or otherwise which is acquired, the Government is not supposed
to put some other person or the police force in possession to
Patna High Court CWJC No.10974 of 2019 dt.13-08-2024
retain it and starts cultivating it till the land is used by it for the
purpose for which it has been acquired. The Government is not
supposed to start residing or to physically occupy it once
possession has been taken by drawing the inquest proceeding
for obtaining possession thereof. Further retaining of the land or
any re-entry is made on the land or someone start cultivation on
the open land or starts residing in the out side, is deemed to be
trespasser on land which is in possession of the State. The
possession of tresspasser always enures for the benefit of the
real owner that is the State Government in the case.
17. Now coming to the issue with regard to the writ
petition being barred by delay and laches, this Court finds
substance in the submission of the learned Advocate for the
State. The cause of action, if any, has arisen in favour of the
petitioner the date on which the new Act, 2013 came into force.
The entire case of the petitioner is based on the provisions of
deemed lapse of proceeding under Section 24(2) of the Act
which clearly says that it is occasioned only where the award
under Section 11 of the 1894 Act, has been made five years or
more prior to the date of commencement of the 2013 Act and
the two conditions specify in Section 24(2) are cumulatively
satisfied i.e., (A) possession of the acquired land has not been
Patna High Court CWJC No.10974 of 2019 dt.13-08-2024
taken, and (B) compensation has not been paid. Even if one of
the condition is not satisfied, acquisition proceeding shall not
lapse. However, the writ petition has been filed after a delay of
five years of coming into force of the new Act, 2013 and nine
years after the formalities of acquisition has been completed.
18. In view of the discussions made hereinabove and
the decision rendered by the Five Judges Bench of the Hon'ble
Supreme Court in the case Indore Development Authority
(supra), on all the counts, this Court does not find any merit in
the writ petition and accordingly the same stands dismissed.
19. There shall be no order as to cost.
(Harish Kumar, J)
Anjani/-
AFR/NAFR
CAV DATE
Uploading Date 14.08.2024
Transmission Date
