Land vested in the State free from all encumbrances, cannot be restituted to the land-owners

Land vested in the State free from all encumbrances, cannot be restituted to the land-owners written by Isha Sawant student of Government Law College

Raghubir Singh v. State of Haryana

Facts:

The petitioner had filed of writ petition in 2016 praying that the notification dated 2^nd January 2020, in which compulsory acquisition proceedings were notified issued under the Land Acquisition Act, 1894 (Act 1894) shall be deemed to have lapsed under the provision of sec-24(2) of the Right Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Act 2013). During the pendency of this petition, two miscellaneous civil applications were filed by the petitioner to withdraw the main writ petition and to approach the respondent-State by filing application under section 101A of the Act 2013 for denotifying the land.

Issues:

• Whether land vested in the State Government for public purpose, and compensation paid to the land-owners can be restituted to the land owners.
• Whether the petitioner can withdraw a main writ petition to approach the state-respondent by way of application under sec-101A of the Right Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

Legal Provisions:

• Land Acquisition Act, 1894 Section 11- Enquiry and award by Collector.
• Right to Fare Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, Section 24(2)- Land acquisition process under Act No. 1 of 1984 shall be deemed to have lapsed in certain cases.

Petitioner’s Contention:

The counsel for the petitioner prayed to be allowed to withdraw the said writ petition with liberty to approach the respondent-State under sec-101A of the Act 2013, as granted in cases of similar nature. They submitted that sec-101A of the Act 2013, enables the state to denotify an already acquired land if the public purpose for which the land was acquired becomes unviable/non-essential. They stated that sec-101A of the act 2013 appears similar to sec-48 of the Act of 1894, but the two operate in different situations as sec-48 deals with withdrawal from land acquisition proceedings by the State Government in case the possession has not been taken under sec-(16)(17), whereas sec-101A of the Act 2013, deals with the restituting the land to the owners when the land was taken way back and was vested in the state government free from all encumbrances. Before sec-101A, if the collector had taken the land and vested it with the state government free from all encumbrances, the same could not be restituted back to the owners from whom it was acquired, sec-101A was inserted to overcome this difficulty, it gave power to the state government to restitute even after taking possession of the such land. They stated that to avoid prevention of the petitioner from filing petitions to seek benefit of sec-101A of the act of 2013, they have filed this application. They stated that if such liberty was not granted, they would have to file a fresh petition which would cause multiplicity of litigation.

Respondent’s Contention:

The Additional Advocate General of Haryana submits that they have no objection to allow the application for withdrawal of the main writ petition but opposed granting of liberty, as the issue involved in the present petition was settled by the apex court in Indore Development Authority v. Manoharlal and Ors. (2020). The counsel stated that the writ petition was filed by the petitioner as his land measuring 12 bighas was acquired for public purpose, for which he received compensation, thereafter he filed a petition for enhancement of compensation. The petitioner filed a writ petition in 2004 challenging the acquisition proceeding in which dispossession was stayed, the said petition was disposed of by an order dated 9^th September 2008, granting liberty to submit representation to the concerned authority for release of land from acquisition proceedings.

However, by an order dated 3^rd August 2012, petitioner’s claim was rejected and he challenged it by filing a CWP in 2013, which was dismissed with the observation that the petitioner referred to the award of compensation of the land acquired and a regular first appeal was filed for enhancement of compensation against the order of the reference Court. It was held that once the petitioner had accepted the compensation and appeal was filed for enhancement, he was estopped from challenging the acquisition proceedings. Thus, the petitioner approached this High Court by CWP of 2013, dismissed on 21^st May 2013. They also submitted that the petitioner thereafter filed a CWP of 2014, to claim benefit of sec-24(2) of the Act of 2013, which was disposed with the direction to the respondent-State to decide the representation of the petitioner. The petitioner’s claim was again rejected, so the petitioner has filed the present petition. They stated that in both the petitions the petitioner is not entitled for liberty to approach the respondent-State by filing representation under sec-101A of the Act of 2013.

Observations of the Court:

The case was heard before the Punjab and Haryana High Court bench of Daya Chaudhary and Meenakshi Mehta, JJ. The court went through the facts and circumstances of the case as well as the documents on record. The court held that since the State has objection in withdrawing the main writ petitions the application was partly allowed, however the prayer for granting liberty to approach the respondent-State for filing representation under sec-101A the of the Act 2013 was denied, stating that the issue involved in the said petition is already settled by the apex court in in the Indore Development Authority case, whereby the Supreme Court had laid down certain legal principles regarding the scope and interpretation of sec-24(2) of the Act of 2013, so in case possession of land was taken by the authorities and compensation had not been paid, then there would be no lapse of Land Acquisition proceedings u/s- 24(2) of the Act of 2013, similarly if compensation was paid and possession was not taken, then too there would be no lapse.

Also, that a land order who refused to accept compensation or sought reference for higher compensation cannot claim that acquisition proceeding had lapsed under sec-24(2) of the Act 2013. The court noted that the possession of the land was taken by Rapat, which is a valid mode of taking possession and that the land was vested in the State, any person retaining possession thereafter in any manner would be treated as a trespasser. It was observed that under the provisions of sec-24 of the Act 2013, State’s claim and concluded proceedings cannot not be revived or inquired into, and the legality of the acquisition proceedings cannot be challenged. The provision u/s-101A of the Act 2013, enables the State to exercise such power to denotify the land, but does not give any legal right to the land owner to approach the state government to denotify his/her land. The issue before the court was if it can issue a writ of Mandamus to exercise the discretionary power granted under the statue which does not confer any corresponding legal right on the individual.

The court observed as per Halsbury’s Laws of England, order of mandamus is of the most extensive remedial nature, it is a command directed to any person, Corporation or Inferior Tribunal requiring them to do their public duty. The Court refers to the judgment of the apex court in State of Kerala v. Kandanath Distilleries (2013), where it was held that the Court was not to interfere or probe into merits of the decision made by an authority in the exercise of its discretion, the court cannot obstruct discretion of an authority acting under statue, by issuing a writ of Mandamus. Writ of Mandamus can only be issued in favor of an applicant who establishes a legal right in himself and is issued against an authority which has a legal duty to perform but has failed to do so such duty emanating either in discharges of public duty or operation of law. They also noted that granting such liberty to the petitioner to approach the respondent-state, would be against the spirit of the decision given by the Supreme Court in the Indore case.

The Court referred to the case of V. Chandrasekaran and Anr. v. Administrative Officer and Ors, whereby it was held that land once vested in the State free from all encumbrances, cannot be divested. Once land is acquired it cannot be restored to the original owners even if it’s not used for the purpose for which it is so acquired. Under sec-(16)(17), the acquired property becomes property of the government without any limitation of conditions, either as to the title or possession. The court concluded that when the apex court has laid down that after vesting of land in the state, the land owners cease to have any right over the land in dispute, especially when the acquisition proceedings have been upheld, and so no liberty can be given as it would be contrary to the settled law and judgment of the apex court in the present matter. It was noted that liberty was granted only in some cases and not in others, so it cannot be said that liberty was granted in all cases, also no reasoning was given for granting or not granting such liberty.

Judgment:

The applications were partly allowed and permitted to be withdrawn but without any Liberty dismissed as withdrawn.