Kanti Swaroop Mehta vs State of H.P. and others

Rajiv Sharma, Judge

Material facts necessary for the adjudication of this petition are that the petitioner is owner of plot, measuring 15 bighas and 4 biswas, comprised in Khasra No. 341/3 entered at Khewat No. 30, Khatauni No. 31 min, situated at Mauja Shamti, Pargna Keontan-I, Tehsil and District Solan, H.P.. Respondent No. 1 for the public purpose, i.e., establishment of Sewerage Treatment Plant, proposed to acquire 4 bighas 12 biswas of land in Village Shamti from the land of the petitioner, comprised in Khasra No. 341/3/2/2/9/1, measuring 14 biswas, Khasra No. 341/3/2/2/9/4, measuring 2 bighas 11 biswas and Khasra No. 341/3/2/2/9/5, measuring 1 biswa, total measuring 3 bighas 6 biswas alongwith two other Khasra Nos., i.e., 262/3/1, measuring 1 biswa, owned by Smt. Geeta wife of Shri Sohan Singh and Khasra No. 1/1, measuring 1 bigha 5 biswas, owned by Smt. Vidya wife of late Shri Shankar. Respondent No. 2 sent a communication to the Land Acquisition Officer, Public Works Department, Solan on 24.04.2003 to initiate the process for providing road to Sewerage Treatment Plant at Solan. The assistant Engineer, I & PH, Sub Division, Solan sent a communication to the Land Acquisition Officer, Public Works Department, Solan on 23.06.2004 for preparing the necessary documents. The Executive Engineer, IPH Division, Solan, H.P. sent a communication to the Land Acquisition Officer, Public Works Department, Solan on 16.07.2004 to do the needful for the purpose of notification u/s 17(4) of the Land Acquisition Act, 1894. The notification u/s 4 was issued by respondent No. 3 on 07.02.2005. The notification u/s 6 was issued on 08.09.2005. Respondent No. 3 prepared the draft award vide Annexure P-7. The Land Acquisition Officer sent the draft award seeking approval of the State Government 17.01.2006 vide Annexure P-8. Thereafter, the respondent No. 1 sent a communication to the Land Acquisition Officer, Public Works Department, Solan on 11.09.2007 for de-notification of land for construction of Sewerage Treatment Plant in Mauja Shamti. Petitioner was also sent a notice, to which he filed reply vide Annexure P-12. However, fact of the matter is that vide notification dated 09.10.2007, Annexure P-11, the land which was acquired for acquisition in village Shamti for construction of Sewerage Treatment Plant, was de-notified. Thereafter, the same was published in the daily edition of ''Hindustan Times'' and ''Dainik Bhaskar'' on 11.11.2007.

Mr. Bhupender Gupta, learned Senior Advocate has strenuously argued that the notification dated 09.10.2007 (Annexure P-11) is bad in law. According to him, once the possession of the land has been taken over, the notification u/s 48 of H.P. Land Acquisition Act, 1894 could not be issued. He then argued that the action of respondents No. 1 and 2 to de-notify the land is actuated with legal malafides. According to him, the land of the petitioner and similarly situate persons have been used for the purpose of setting up Sewerage Treatment Plant and also for providing access to the same. According to him, pipes etc. have been laid down on the land of the petitioner.

Mr. R.P. Singh, learned Assistant Advocate General has supported the issuance of notification dated 09.10.2007. According to him, the land was not acquired by the State Government and the petitioner has no concern with the land, since according to him, the petitioner has sold the land to Farm Scientist Co-Operative Society, Solan and has entered into an agreement with the members of the Society on 26.11.1984 to provide them the land for passage free of costs. He has referred to Annexure R-1, dated 22.09.2003. He has also argued that the Sewerage Treatment Plant has already been set up on the basis of the award No. 29 of 2000, dated 11.06.2000.

I have heard the learned counsel for the parties and gone through the record carefully.

Respondent No. 2 has initiated the process for acquiring the land of the petitioner, as is evident from Annexures P-3, P-4 and P-5. Notification u/s 4 was issued on 07.02.2005. The land was acquired for the construction of road for Sewerage Treatment Plant. This notification was published in two daily news papers, i.e., ''Punjab Kesari and ''Divya Himachal'' on 15.03.2005. It was also got published in Rajpatra on 26.02.2005. It was also given wide publicity through Tehsildar, Solan on 15.03.2005 vide report No. 493. A report u/s 5-A(2) was submitted to the Executive Engineer, I & PH Division, Solan by respondent No. 3 on 13.04.2005 alongnwith draft notification under Sections 6 and 7 of the Act. The State Government has issued a notification under Sections 6 and 7 of the Land Acquisition Act, 1894 vide letter dated 08.09.2005. The notification was published in two daily newspapers, i.e., ''Ajeet Samachar'' and ''Divya Himachal'' on 30.10.2005. It was also got published in the H.P. Rajpatra on 24.09.2005. Wide publicity was also given to the same through concerned Tehsildar, Solan on 10.10.2005 vide report No. 103. The land was got demarcated u/s 8 of the Land Acquisition Act on spot by field agency, which was checked by the Naib Tehsildar, L.A.O. office Solan in the presence of right holders and nominees of the department on 14.11.2005. Their statements were also recorded on the spot. The enquiry u/s 9 of the Land Acquisition Act was conducted on 07.12.2005. The Land Acquisition Officer determined the compensation amount to the tune of Rs. 35,19,965/-. He sent the draft award Annexure P-7 for approval to the State Government on 17.01.2006. It is evident from the draft award Annexure P-7 that possession of the land was already with the Irrigation and Public Health Department at the time of passing of draft award. However, the formal possession was to be handed to the nominees of the department in accordance with law within one month from the date of payment.

The State Government did not take any action on Annexure P-8, dated 17.01.2006. However, the Executive Engineer, IPH Division, Solan, H.P. sent a communication to respondent No. 3 on 11.09.2007 to initiate the process for preparation of papers under Sections 4, 6 and 7 for de-notification of land for construction of Sewerage Treatment Plant in Mauza Shamti. Petitioner has also filed objections to the same vide Annexure P-12. Petitioner also highlighted that at one time Shri Man Singh had stopped the work and the matter was adjudicated by the Civil Court and on the assurance of the department that land will be lawfully acquired, the suit was withdrawn. Petitioner also highlighted in the reply dated 09.10.2007 that the department incurred expenditure, which was entered in the measurement book of the concerned Junior Engineer. He also reiterated that possession of the land was already with the I.P.H. department in the shape of chambers and pipes. According to him, 11 Chambers had been constructed and R.C.C. pipes were also laid. The State Government vide notification dated 09.10.2007, had de-notified the land, which was notified for acquisition vide notification dated 07.02.2005 and 08.09.2005 under Sections 4, 6 and 7 of the Land Acquisition Act, 1894.

In the instant case, the department of Irrigation and Public Health has decided to set up Sewerage Treatment Plant. Though it has come in the reply filed by the State that main plant was set up on the land acquired vide Award No. 29/2000, dated 11.06.2000, however, fact of the matter is that the process was initiated by the State by issuing notification u/s 4 on 07.02.2005 and under Sections 6 and 7 on 08.09.2005. The notifications issued under Sections 4, 6 and 7 were duly published in the Rajpatra and two news papers. The demarcation was also undertaken on 14.11.2005. The inquiry was also conducted u/s 9 of the Land Acquisition Act.

It has come in Annexure P-7 that the possession was already with the Irrigation and Public Health Department at the time of issuance of Annexure P-7. The Court is of the considered view that once the possession has been taken over by the respondent-State, the State Government could not withdraw from the acquisition proceedings by issuing Annexure P-11, dated 09.10.2007.

Mr. R.P. Singh, learned Assistant Advocate General has also argued that in fact the petitioner has sold the land to Farm Scientist Co-Operative Society, Solan and has entered into an agreement with the members of the Society on 26.11.1984 to provide them the land for passage free of costs. He has referred to Annexure R-1. A copy of the sale deed dated 26.11.1984 and agreement dated 29.10.1999 have also been annexed with Annexure R-1. The respondent-State has also initiated the process for acquiring the land of the petitioner. This fact was within the knowledge of the State Government even at the time when the notifications under Sections 4, 6 and 7 were issued on 07.02.2005 and 08.09.2005.

In this case, the process for acquiring the land of the petitioner has been initiated on the basis of the communications Annexures P-3, dated 24.04.2003, P-4, dated 23.06.2004 and P-5, dated 16.07.2004. The process continued till the preparation of the draft award Annexure P-7 and its submission for approval vide Annexure P-8. The action of respondents No. 1 and 2 is actuated with legal malafides, whereby the petitioner and similarly situate persons are being deprived of their land without following due process of law. Respondent-State has set up the Sewerage Treatment Plant and in order to provide access to the treatment plant, has used the land of the petitioner, as is evident from the photographs, i.e., Annexure P-6 as well as draft award. The possession can be taken over the manner prescribed under the Land Acquisition Act or under the Common Law.

Their Lordships of the Hon''ble Supreme Court in Rajasthan Housing Board and Others Vs. Shri Kishan and Others, have held that it is not open to the Government once possession of the land has been taken over by it. Their Lordships have held as under:

We are of the further opinion that in any event the government could not have withdrawn from the acquisition u/s 48 of the Act inasmuch as the government had taken possession of the land. Once the possession of the land is taken it is not open to the government to withdraw from the acquisition. The very letter dated 24/02/1990 relied upon by the counsel for the petitioner recites that "before restoring the possession to the society the amount of development charges will have to be returned back...." This shows clearly that possession was taken over by the Housing Board. Indeed the very tenor of the letter is, asking the Housing Board as to what development work they had carried out on the land and how much expenditure they had incurred thereon, which could not have been done unless the Board was in possession of the land. The Housing Board was asked to send the full particulars of the expenditure and not to carry on any further development works on that land. Reading the letter as a whole, it cannot but be said that the possession of the land was taken by the government and was also delivered to the Housing Board. Since the possession of the land was taken, there could be no question of withdrawing from the acquisition u/s 48 of the Land Acquisition Act, 1894.

Their Lordships of the Hon''ble Supreme Court in Amarnath Ashram Trust Society and Another Vs. Governor of U.P. and Others, have held that the discretion of Government to withdraw from acquisition as justiciable and not absolute. Their Lordships have further held that it can be challanged on the ground that it was exercised malafide or arbitrarily. Their Lordships have held as under:

However, it is not necessary to go into this larger question whether in such a case the State Government can withdraw from acquisition without the consent of the company as the justification given by the Government is otherwise not sustainable. As stated earlier the reason given by the Government for withdrawing from the acquisition is that as no part of the cost of acquisition was to be born by the Government the acquisition could not have been sustained as for a public purpose. We have already pointed out that in this case the acquisition was not for a public purpose but it was an acquisition for a company under Chapter VII of the Act. In respect of an acquisition for a company under Chapter VII of the Act law does not require that the State should also bear some cost of the acquisition to make it an acquisition for public use. Thus the decision of the Government to withdraw from acquisition was based upon misconception of the correct legal position. Such a decision has to be regarded as arbitrary and not bona fide. Particularly in a case where as a result of a decision taken by the Government other party is likely to be prejudicially affected, the Government has to exercise its power bona fide and not arbitrarily. Even though Section 48 of the Act confers upon the State wide discretion it does not permit it to act in an arbitrary manner. Though the State cannot be compelled to acquire land compulsorily for a company its decision to withdraw from acquisition can be challenged on the ground that power has been exercised mala fide or in an arbitrary manner. Therefore, we cannot accept the submission of the learned counsel for the State that the discretion of the State Government in this behalf is absolute and not justiciable at all.

Their Lordships of the Hon''ble Supreme Court have reiterated in Govt. of A.P. and Another Vs. Syed Akbar, that u/s 48 of the Land Acquisition Act, Government could withdraw from the acquisition of any land of which possession has not been taken.

In view of the observations and discussions made hereinabove, it is established that the action of respondents No. 1 and 2 to de-notify the land on the basis of Annexure P-11, dated 09.10.2007 is arbitrary and actuated with legal malafides. Respondent-State after taking the possession of the land and after putting it to use, cannot be permitted to turn around and de-notify the land. The notifications under Sections 4, 6 and 7 have been issued in accordance with law. The land has already been demarcated and enquiries were also made u/s 9 of the Land Acquisition Act, 1894. In view of this, the draft award made by respondent No. 3 was required to be accorded approval by the State Government instead of de-notifying the same on 09.10.2007.

Accordingly, the writ petition is allowed. Annexure P-11, dated 09.10.2007 is quashed and set aside. Respondent No. 1 is directed to accord necessary permission to the draft award, Annexure P-7, within a period of three months from today. The pending application(s), if any, also stands disposed of.