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Judgment
Vilas V. Afzulpurkar, J.
WAMP Nos. 836, 838 and 839 of 2013:
WAMP Nos. 836 and 839 of 2013 are filed seeking condonation of delay and WAMP No. 838 of 20l3 is filed seeking to dispense with filing of the copy of the order. Heard both sides. The learned counsel on either side agreed to make submissions on the merits of the appeals and these applications were not seriously opposed.
In the affidavit filed in support of WAMP No. 836 of 2013, the appellant stated that originally the Rev. WPMP No. 42318 of 2009 was filed by the earlier standing counsel, and though in the cause list the name of the present standing counsel is printed but in the copy of the order the name of the earlier standing counsel is reflected and when the appellant approached the standing counsel to know about the status of the case, they were informed that the Rev. WPMP No. 42318 of 2009 is dismissed and order copy is awaited. They were also informed by their standing counsel that a copy application has to be made for obtaining certified copy of the order and accordingly, they made copy application and obtained certified copy and in the process, delay of 175 days has occurred and the delay is neither intentional nor wanton.
The reasons stated by the appellant in support of the delay applications, being convincing and there being no opposition from the respondents, the applications are ordered.
WA(SR) Nos. 41268 and 41425 of 2013 (W.A. Nos. 766 and 767 of 2013):
WA(SR)No. 41268 of 2013 is preferred by the Agricultural Market Committee against the dismissal of the review petition, being Rev. WPMP No. 42318 of 2009, dated 31.082012 and WA(SR) No. 41425 of 2013 is preferred by the market committee against the order of the learned single Judge in WP No. 27688 of 1998 dated 24.04.2007. A learned single Judge dismissed the review petition, being Rev. WPMP No. 42318 of 2009, on the ground that contention of the market committee that the possession of the entire land was taken on 31.05.1994 was neither argued nor decided by this Court in WP No. 12243 of 1994.
We have heard both these appeals at length. Since the impugned land acquisition proceedings were subject matter of challenge in several earlier rounds of litigation before this Court, it is appropriate to notice the following chronology of events before embarking on the issues involved in these appeals.
The chronology of events, as mentioned above, itself would indicate that following questions arise for determination:
Whether finding as to possession was recorded by this Court in WP No. 12243 of 1994 dated 11.06.1996?
Whether this Court while hearing Rev. WPMP No. 17684 of 2009 in WP No. 27688 of 1998 could have appointed an Advocate Commissioner to know whether possession of land was taken on 31.05.1994 and whether finding could have been rendered on the basis of the report of the Advocate Commissioner that Ac.1.35 cents of the land of the petitioners was not taken possession of?
Whether the learned single Judge while deciding WP No. 27688 of 1998 could have quashed notification u/s 4(1) when the petitioners had called in question only the notices issued under Sections 9(3) and 10 of the Act?
What is the effect of the judgment of the Division Bench in WA Nos. 1173 and 1304 of 2009 when they preserved the rights of the appellant till the decision on the fresh review petition (impugned herein)?
Whether the provisions of Section 11(A) of the Act apply when the urgency clause is invoked, 80% of the compensation is deposited and the possession is taken?
We had also called for and examined the records of the Land Acquisition Officer including the Section 6 declaration published at two stages, as mentioned above, as well as the award dated 26.03.1998 and the proceedings dated 31.05.1994 wherein the possession of the land was taken over by the Mandal Revenue Inspector and handed over the same to the Special Grade Secretary, Agricultural Market Committee. In fact, the chronology given above is based on the records.
In our view, the appellant is entitled to succeed and the questions, as framed above, deserve to be answered in favour of the appellant. The reasons therefor are as under. Since the questions, framed above, are interlinked to some extent hence the following paragraphs shall answer all of them.
In WP No. 12243 of 1994, this Court in its judgment dated 11.06.1996 had quashed Section 6 declaration only and had subsequently held that possession of the land having been taken and the compensation having been deposited long back, the possession deserves to be continued with the authorities, though fresh enquiry u/s 5-A of the Act was ordered. The said order, therefore, impliedly rejected the petitioners'' prayer for quashing notification u/s 4(1) of the Act and allowed the writ petition in part only to the extent of quashing declaration u/s 6 of the Act. The said order having become final, in the subsequent challenges by the petitioners, notification u/s 4(1) of the Act could not have been quashed.
Further with regard to taking over of possession, learned single Judge, in the aforesaid decision, recorded that possession was taken by the authorities but after more than three months of notification u/s 4(1) of the Act. Learned single Judge also specifically recorded that petitioners are not entitled to redelivery of possession consequent upon quashing of Section 6 declaration. The findings in the impugned judgment of the learned single Judge on the aspect regarding taking of possession of the land ''was neither argued nor decided by this Court in WP No. 1223 of 1994'' is factually incorrect as there is a categorical finding in that respect in the writ petition, referred to above.
In the second round of litigation, the writ petition initiated by filing WP No. 27688 of 1998, the petitioners had only questioned the notices under Sections 9(3) and 10 of the Act. There was, therefore, no justification for quashing notification u/s 4(1) of the Act. while allowing the said writ petition by learned single Judge by order dated 24.04.2007. While deciding the above writ petition, the learned single Judge ought to have confined himself to the validity of notices under Sections 9(3) and 10 of the Act, but the learned single Judge allowed the writ petition holding that no enquiry u/s 5-A of the Act was conducted, in spite of the fact that the petitioners had never questioned declaration u/s 6 of the Act issued in pursuance of the fresh notice u/s 5-A of the Act, as noted in the chronology, referred to above. Learned single Judge also committed error in holding that the award ought to have been passed within two years, as provided u/s 11-A of the Act, by overlooking that the said aspect is covered against the petitioners by two decisions of the Supreme Court in Awadh Bihari Yadav and Others Vs. State of Bihar and Others, and Satendra Prasad Jain and Others Vs. State of U.P. and Others, , both of which were noticed by the learned single Judge, who decided earlier WP No. 12243 of 1994 under order dated 11.06.1996. Since the possession of the land was taken on 31.05.1994 and the compensation was already deposited prior thereto, the invalidation of entire acquisition proceedings on the ground that it has lapsed, is clearly erroneous.
While the Land Acquisition Officer and the District Collector brought the aforesaid errors to the notice of the learned single Judge in Rev. WPMP No. 17684 of 2009, strangely, this Court appointed an Advocate Commissioner to find out as to whether possession of the land was taken on 31.05.1994. We are at a loss to appreciate the exercise of discretion in the aforesaid manner where an Advocate Commissioner is appointed to inform the Court about the possession. Be that as it may, the Advocate Commissioner reported to the Court that out of total extent of Ac.8.82 cents acquired, there exists market yard, godown, market office etc. of Ac.7.47 cents whereas Ac.1.35 cents is vacant. On the aforesaid report, learned single Judge quashed the entire acquisition proceedings to the extent of Ac.1.35 cents. In our view, firstly, an Advocate Commissioner could not have been appointed to inform the Court as to who is in possession of the land and secondly, the said aspect relating to taking of possession on 31.05.1994 was already accepted by this Court in the earlier WP No. 12243 of 1994 dated 11.06.1996, which had attained finality and could not have been reopened either by the petitioners or by the Government. Thus, the order in the review petition quashing the acquisition proceedings to the extent of Ac.1.35 cents is not sustainable, as the same was not only beyond the scope and prayer in the writ petition but it was also against principles of res judicata including constructive res judicata.
In the appeals filed by the District Collector and the Land Acquisition Officer against the aforesaid judgment in review petition, the rights of the appellants were preserved by the Division Bench while directing the market committee to prefer fresh review petition. The dismissal of such fresh review petition by the learned single Judge under the impugned judgment has already been found to be erroneous in the paragraphs above, which shows that the judgment of the learned single Judge in WP No. 27688 of 1998 dated 24.04.2007 as well as the further order in Rev. WPMP. No. 17684 of 2009 dated 08.06.2009 is not sustainable on the grounds, as mentioned above. The possession was already taken on 31.05.1994 and petitioners'' request for restoration of possession was negatived by this Court while deciding first of the writ petitions, being WP No. 12243 of 1994 by order dated 11.06.1996. In view of the decision of the Supreme Court in Swaika Properties Pvt. Ltd. and Another Vs. State of Rajasthan and Others, it was not open for the petitioners to challenge the acquisition proceedings at any stage after taking over possession.
Keeping all these circumstances and the legal position in mind, therefore, we are constrained to allow both the appeals and thereby, Rev. WPMP No. 42318 of 2009 shall stand allowed and WP No. 27688 of 1998 shall stand dismissed. As a sequel, the miscellaneous applications, if any, shall stand disposed of as infructuous. There shall be no order as to costs.