PETITIONER:
AWADH BIHARI YADAV & ORS.
Vs.
RESPONDENT:
THE STATE OF BIHAR & ORS.
DATE OF JUDGMENT31/08/1995
BENCH:
PARIPOORNAN, K.S.(J)
BENCH:
PARIPOORNAN, K.S.(J)
RAMASWAMY, K.
CITATION:
1996 AIR 122 1995 SCC (6) 31
JT 1995 (6) 248 1995 SCALE (5)74
ACT:
HEADNOTE:
JUDGMENT:
WITH
CIVIL APPEAL NOS. 7820-21 OF 1995.
———————————————
[Arising out of SLP(C) Nos. 21401-02 of 1993]
Sita Ram Gope & Ors.
V.
The State of Bihar & Ors.
J U D G M E N T
PARIPOORNAN, J.
Leave granted.
2. A batch of four writ petitions – CWJC No. 8426/88,
CWJC No. 6373/88, CWJC No. 3720/90 and CWJC No.9000/89, was
heard and disposed of by the High Court of Patna by a common
judgment dated 30.7.1993. The appellants who obtained leave
in S.L.P. (C) No. 20490 of 1993, are the petitioners in CWJC
No. 8426 of 1988. The intervenors and respondents in CWJC
No. 6373/88 and the petitioners in CWJC No. 3720/90, who
have filed the civil appeals in pursuance to leave granted
in S.L.P. (C) Nos. 21401-02 of 1993, are the appellants in
the other appeals. No appeal is preferred by any of the
parties in CWJC No. 9000/89 against the common judgment. The
State of Bihar, its officials - the Patna Municipal
Corporation, the Patna Regional Development Authority, the
District Land Acquisition Officer, Patna, the Buddha Griha
Nirman Sahyog Samiti Ltd. and its officials are the
respondents in these appeals.
3. The main contesting respondents in the above appeals
are - the State of Bihar, the Patna Regional Development
Authority, and the Buddha Griha Nirman Sahyog Samiti Ltd.
CWJC No. 6373/88 was a writ petition filed by the Buddha
Griha Nirman Sahyog Samiti Ltd., praying that appropriate
directions may be given to the respondents therein (the
State of Bihar and its officials, Patna Municipal
Corporation, Patna Regional Development Authority and the
District Land Acquisition Officer) to give effect to the
directions given by the High Court in CWJC No. 3241/82 in
the judgment dated 23.5.84, and for other consequential and
incidental reliefs, including directions to the respondents
to remove the encroachments or unauthorized constructions
from the vacant lands which formed the subject matter of the
notification. The four writ petitions were disposed of by a
common judgment dated 30.7.1993, by a Division Bench of the
Patna High Court (S. B. Sinha and D. Sinha, JJ). By the
aforesaid judgment the learned Judges directed the land
acquisition officer to sign and complete the award in terms
of the earlier order of the Court dated 31.7.1984, in Form
15 and to take further steps in terms of Section 12 of the
Land Acquisition Act,1894 (hereinafter referred to as the
‘Act’). CWJC No. 6373/88 was allowed to the above extent.In
view of the above directions, the other writ petitions were
dismissed. The learned Judges also observed that the office
will start preparing separate records relating to the
contempt of court matters so as to pass necessary orders,
and that the authorities before whom a suit and other
encroachment proceedings relating to the land under
acquisition were pending, shall expedite them. Aggrieved by
the aforesaid judgment, the petitioners in CWJC No. 8426/88,
the respondents and intervenors in CWJC No. 6373/88 and the
petitioners in CWJC No. 3720/90, after obtaining special
leave have filed the aforesaid appeals.
4. We heard Mr. Raja Ram Agarwal and Mr. S. B.Sanyal,
Senior Counsel who appeared on behalf of the appellants and
Mr. P. N. Lekhi, Senior Counsel, Mr. B.B. Singh, Advocate
and Mr. A. Sharan, Advocate, who appeared on behalf of the
respondents. The subject matter in the appeals relates to
land acquisition proceedings, covering an extent of about
32.48 acres in the villages of Rajapur No. 3 and Dujra No.
4, Perganna Phulwari, Thana Phulwari, District Patna,
initiated under Section 4(1) read with Section 17(4) of the
Act as amended by Bihar Act No. 18 of 1964.
5. Budhha Griha Nirman Sahyog Samiti Ltd., a society
registered under the Societies Registration Act on 4.3.1958,
(hereinafter called the ‘Society’), and its officials are
the petitioners in CWJC No. 6373/88. The Society requested
the State Government to acquire land for the purpose of
providing it to doctors, lawyers, Government servants and
journalists for building purpose. An extent of 25.09 acres
of land was acquired under the normal procedure and the
acquisition was completed on 11.7.1862. Possession of the
land was taken and compensation was also paid. There is no
controversy about this part of the acquisition.
6. The Society wanted to acquire another block of
32.48 acres, the land adjacent to the aforesaid 25.09 acres.
The entire controversy in this batch of appeals is regarding
this acquisition, initiated under Section 4 read with
Section 17(4) of the Act (“emergency” acquisition). The
Notification relating thereto is dated 4.2.1959. The
declaration under Section 6 was made on 4.6.1969. A writ
petition filed in the High Court assailing the above
proceedings was allowed with liberty to the authorities to
initiate proceedings afresh on 2.4.1960. While so, the Patna
Improvement Trust (Patna Development Authority),
(hereinafter referred to as the ‘Authority’), requested the
Government to acquire 64.48 acres of land in Dujra and
Rajapur villages for its Boaring Road Development Scheme,
Phase-I. The extent of 32.48 acres of land which the Society
wanted to acquire and for which proceedings were initiated
(under Section 4(1) read with Section 17(4) fell within the
area, which the Authority wanted the Government to acquire.
A fresh Notification under Section 4 read with Section17(4)
of the Act, proposing to acquire 64.48 acres of land was
promulgated on 6.8.1961.There was an understanding that upon
acquisition, out of the above land, 32.48 acres would be
transferred to the Society. A declaration under Section 6 of
the Act dated 5.10.1961, appeared in the Gazette on
7.10.1961. As stated, the possession of 25.08 acres acquired
under the ordinary procedure was handed over to the society
on 11.7.1962. It appears that possession of an area of 57.71
acres covered by the later notification, was delivered to
the Authority on 6.8.1962. Later, the Authority handed over
possession of 32.48 acres to the Society. While so, in
M.J.C. No. 65/62 the High Court of Patna stayed the land
acquisition proceedings. The stay was in force from
23.1.1962 to 1.7.1964 and the M.J.C. was finally withdrawn.
It appears that the Society deposited with the Authority a
sum of Rs.1 million on 7.4.1965. By letter No.254, dated
18.1.1972 the Government directed the Collector not to make
the award till fill payment of compensation was deposited by
the Authority. The acquisition was questioned in C.W.J.C.
No. 812/67 in the High Court of Patna. The said petition was
dismissed. The matter was taken in appeal to this Court. The
appeal was also dismissed. The decision of this Court is
reported in Ajodhya Bhagat and others vs. The state of
Bihar and others, AIR 1974 sc 1886. The Authority did not
deposit the entire compensation amount despite reminders.
While so, on 14.8.1981 the Authority passed a resolution not
to acquire the entire lands sought, expect those portions
which were required for construction of the road. It is
stated that two awards were passed on 13.3.1982 for an
extent of 4.47 acres and 3.32 acres only and the amount of
compensation due thereunder were also paid. No award was
passed in respect of the remaining lands. It is in these
state of affairs, on 22.8.1982 the Society filed the writ
petition CWJC No. 3241/82, and assailed the resolution of
the Authority dated 14.8.1981 and also prayed for a
direction to the respondents therein to release the lands.
The High Court of Patna by its Judgment dated 23.5.1984,
quashed the resolution of the Authority dated14.8.1981, and
also directed the District Collector to prepare the award.In
the said Judgment, it was noticed that the Society was given
possession of lands acquired under the normal procedure -
25.08 acres, and also lands acquired under the emergent
procedure - 32.48 acres. The Court further found that since
possession of the land had been taken, the Government cannot
withdraw from the acquisition. The validity of acquisition
was upheld by the High Court which was affirmed by this
Court and it was observed that the acquisition cannot be
nullified, for not passing an award. The Court also noticed
that there was unauthorized construction and encroachments,
but since the land vested in the Government and possession
was taken over, no rights will acquire by such unauthorized
construction and encroachments. It is seen that the special
leave petition filed against the Judgment of the High Court
in CWJC No. 3240/82 was dismissed by this Court on
23.9.1984. Pursuant to the aforesaid Judgment an award dated
31.7.1984 was passed. The appellants contend that the
proceeding dated 31.7.1984 is only a valuation statement and
not an award. According to the respondents, the proceeding
dated 31.7.1984 is in substance an award. The Society filed
an application before the Collector under the Bihar Public
Encroachment Land Act, 1976 against 207 persons. The Society
also filed Title Suit No. 32/87 in the Sub Court I, Patna
against 357 persons for restoration of possession by
evicting the encroachers.
7. The above events led to the filing of CWJC No.
6373//88 by the Society against the State of Bihar, the
Authority and the Land Acquisition officer to give effect to
the Judgment rendered in CWJC No. 3241/82 and for other
reliefs and complete the acquisition proceedings. The
appellants herein filed CWJC No. 8426/88 and 3720/90, in
effect contending that the entire land acquisition
proceedings had lapsed in view of Section 11-A of the Act.
They are also intervenors in CWJC No.6373/88. Before us, as
also before the High Court, the objections of the appellants
and intervenors against the land acquisition proceeding are
three-fold:
(i) The land acquisition proceeding have lapsed in view
of Section 11-A of the Act.
(ii) The proceedings dated 31.7.1984 is not an award
since it is not in Form 15 and is unsigned.
(iii) The Society is not entitled to any relief as
prayed for in CWJC No. 6373/88, since it has initiated
alternate proceedings by way of title suit and application
under the Bihar Public Land Encroachment Act, 1956.
8. The sheet-anchor of the appellants plea is that
the land acquisition proceedings have lapsed in view of
Section 11-A of the Act. In order to understand the scope of
the plea it will be useful to extract the relevant
provisions of the Acts. [Section 6, Section 11, Section 11-
A, Section 17 and Section 18(1)].
“6. Declaration that land is required
for a public purpose.-
(1) Subject to the provisions of Part
VII of this Act, when the appropriate
Government is satisfied, after
considering the report , if any, made
under Section 5-A, sub-section
(2), that any particular land is needed
for a public purpose, or for a Company,
a declaration shall be made to that
effect under the signature of a
Secretary to such Government or of some
officer duly authorized to declarations
may be made from time to time in
respect of different parcels of any land
covered by the same notification under
section 4, sub-section (1), irrespective
of whether one report or different
reports has or have been made (wherever
required ) under Section 5-A, sub-
section (2)
Provided that no9 declaration in
respect of any particular land covered
by a notification under Section 4, sub-
section (1),-
(i) published after the
commencement of the Land Acquisition
(Amendment and Validation) Ordinance
1967 (1 of 1967), but before the
commencement of the Land Acquisition
(Amendment) Act, 1984, shall be made
after the expiry of three years from the
date of the publication of the
notification;or
(ii) published after the
commencement of the Land Acquisition
(Amendment) Act, 1984, shall be made
after the expiry of one year from the
date of the publication of the
notification:
Provided further that no such
declaration shall be made unless the
compensation to be awarded for such
property id to be paid by a Company, or
wholly or partly out of public revenues
or some fund controlled or managed by a
local authority.”
“11. Enquiry and award by Collector.-
(1) on the day so fixed, or on any other
day to which the enquiry has been
adjourned, the Collector shall proceed
to enquire into the objections (if any)
which any person interested has stated
pursuant to a notice given under Section
9 to the measurements made under Section
8, and into the value of the land at the
date of the publication of the
notifications under Section 4, sub-
section (1), and into the respective
interests of the compensation and shall
make an award under his hand of -
(i) the true area of the land;
(ii) the compensation which in his
opinion should be allowed for the
land;and
(iii)the apportionment of the said
compensation among all the persons known
or believed to be interested in the
land, of whom,or of whose claims, he has
information, whether or not they have
respectively appeared before him:
Provided that no award shall be
made by the Collector under this sub-
section without the previous approval of
the appropriate Government or of such
officer as the appropriate Government
may authorise in this behalf:
(2) Notwithstanding anything contained
in sub-section (1), if at any stage of
the proceedings, the Collector is
satisfied that all the persons
interested in the land who appeared
before him have agreed in writing on the
matters to be included in the award of
the Collector in the form prescribed by
rules made by the appropriate
Government, he may without making
further enquiry, make an award according
to the terms of such agreement.
(3) The determination of compensation
for any land under sub-section (2) shall
not in any way affect the determination
of compensation in respect of other
lands in the same locality or elsewhere
in accordance with the other provisions
of this Act.
(4) Notwithstanding anything contained
in the Registration Act,1908, (16 of
1908), no agreement made under sub-
section (2) shall be liable to
registration under that Act.”
“11-A. Period within which an award
shall be made.- The Collector shall make
an award under Section 11 within a
period of two years from the date of the
publication of the declaration and if no
award is made within that period, the
entire proceedings for the acquisition
of the land shall lapse:
Provided that in a case where the
said declaration has been published
before the commencement of the Land
Acquisition (Amendment ) Act, 1984, the
award shall be made within a period of
two years from such commencement.
Explanation.- In computing the period
of two years referred to in this
section, the period during which any
action or proceeding to be taken in
pursuance of the said declaration is
stayed by an order of a Court shall be
excluded.”
“17. Special powers in cases of
urgency.- (1) In cases of urgency,
whenever the appropriate Government si
directs, the Collector, though no such
award has been made, may, on the
expiration of fifteen days from the
publication of the notice mentioned in
Section 9, sub- section (1), take
possession of any land needed for public
purpose. Such land shall thereupon vest
absolutely in the Government, free from
all encumbrances.
XXX XXX XXX
(4) In the case of any land to which,
in the opinion of the appropriate
Government, the provisions of sub-
section (1) or sub-section (32) are
applicable, the appropriate Government
may direct that the provisions of
Section 5-A shall not be apply, and, if
it does so direct, a declaration may be
made under Section 6 in respect of the
land at any time after the date of the
publication of the notification under
section 4, sub-section (1).”
“48. Completion of acquisition not
compulsory, but compensation to be
awarded when not completed.-
(1) Expect in the case provided for in
Section 36, the Government shall be at
liberty to withdraw from the Acquisition
of any land of which possession has not
been taken.”
It was contended that in view of Section 11-A of the
Act the entire land acquisition proceedings lapsed as no
award under Section 11 had been made within 2 years from the
date of commencement of the Land Acquisition Amendment Act,
1984. We are of the view that the above plea has no force.
In this case, the Government had taken possession of the
land in question under Section 17(1) of the Act.It is not
open to the Government to withdraw from the acquisition
(Section 48 of the Act). In such a case, Section 11-A of
the Act is not attracted and the acquisition proceedings
would not lapse, even if it is assumed that no award was
made within the period prescribed by Section 11-A of the
Act. Delivering the Judgment of a Three Member Bench of this
Court, in Stander Prasad Jain and others vs. State of U.P.
and others, 1993 (4) sc 369, s.p. Bharucha, J., at page 374,
paragraph 15, stated the law thus:
“Ordinarily, the Government can take
possession of the land proposed to be
acquired only after an award of
compensation in respect thereof has been
made under section 11. Upon the taking
of possession, the land vests in the
Government, that is to say, the owner of
the land loses to the Government the
title to it.This is what section 16
states. The provisions of section 11-A
are intended to benefit the landowner
and ensure that the award is made within
a period of two years from the date of
the section 6 declaration. In the
ordinary case, therefore, when
Government fails to make an award within
two years of the declaration under
section 6, the land has still not wasted
in the Government and its title remains
with the owner, the acquisition
proceedings are still pending, and by
virtue of the provisions of section 11-
A, lapse. When section 17(1) is applied
by reason of urgency, Government takes
possession of the land prior to the
making of the award under Section 11 and
thereupon the owner is diversted of the
title to the land which is vested in the
Government. Section 17(1) states so in
unmistakable terms. Clearly, section 11-
A can have no application to cases of
acquisition under Section 17, because
the lands have already vested in the
Government and there is no provision in
the said Act by which land statutorily
vested in the Government can revert to
the owner.”
(Emphasis supplied)
We, therefore, hold that the land acquisition
proceedings in the instant case did not lapse.
9. We are also of the view that the proceedings dated
31.7.1984 (appearing 82 to 84 of Paper Book, Vol.I, and at
pages 203 to 206 of paper Book, Vol.II), is in substance an
award as contemplated by Section 12 of the Act.It is signed
by the District Land Acquisition officer (Collector) under
the Act, though the signature appears to be illegible dated
31.7.1984, the High Court observed that the State is bound
by the directions given by the Court earlier in CWJC No.
3142/82, that in the light of the aforesaid order of the
High Court, proceedings dated 31.71984 was passed, that all
requisites of an award are mentioned in the said ordure, and
since there is substantial compliance, it should be treated
as an award. The High Court was also of the view that even a
defective award which has provisions with the directions of
the Court and the provisions of law will not invite ” the
wrath” of Section 11-A of the Act. We are in general
agreement with the reasoning and conclusion of the high
Court in holding that three proceedings dated 31.7.1984, in
the facts and circumstances of the case, is an award passed
by the Collector under the Act, though not in Form 15. It is
only a matter of procedure which should be complied with.
Since the direction given by the High Court in CWJC No.
3241/82 should not be effectuated, the High Court was
justified in directing the authority concerned to sign and
complete the award in t terms of the earlier order dated
31.7.984. The reasoning of the High Court that it has power
to issue such directions under Article 215, in a case where
otherwise the conduct of the persons called for punishment
in contempt, appears to be justified. We hold that the
proceedings dated 31.7.1984, is in substance, an award,
though it is not in Form 15.
10. Mr. Sanyal, senior counsel, very strongly contended
that since the Society filed an application before the
Collector under the Bihar Public Land Encroachment Act,
1956, and also title suit No. 32/87, in the Sub Court, Patna
for removing the encroachments, the High Court was in error
in not dismissing the writ petition filed by the Society. In
other words, the plea was that since the Society has availed
of the alternate remedy, the writ petition should have been
dismissed and the High Court should not have exercised the
discretionary jurisdiction under Article 226 of the
Constitution of India. Counsel pressed into service the
decision of this Court in Jai Singh vs. Union of India and
others, AIR 1977 sc 898, to substantiate the plea. We are of
the view that Jai Singh’s case is clearly distinguishable.
In that case, the appellant before this court prayed for
quashing the demand made against him in respect of royalty.
His case was that gypsum ore was less than the p[articular
percentage of purity. Whereas according to the revenue, it
was not so established and the substance contained a higher
percentage of purity. The plea of the appellant was not
accepted by the statutory authorities. The writ petition
filed by the appellant in the High Court was dismissed on
the ground that it fact and the appellant had an alternate
remedy. Against the dismissal of the writ petition the
appellant filed an appeal in this Court on a certificate
granted by the High Court. He also filed a suit wherein the
same question was agitated which was the subject matter of
the writ petition. In these circumstances, this Court held
that the appellant, in the said case, cannot pursue two
parallel remedies in respect of the same matter at the same
time. We are also of the view that ordinarily the above
rule should prevail. There may be extraordinarily situations
or circumstances, which may even warrant, a different
approach, where the orders passed by the Court are sought to
be violated or thwarted with impunity. The Court cannot be
silent spectator in such extra- ordinary situations. The
position obtaining herein is rather a different and unusual
one. The writ petition was filed by the Society (CWJC No.
6373/88), praying for a direction to the respondents to give
effect to the directions contained in the earlier judgment
of this Court in CWJC No. 3241/82, dated 23.9.1984, and for
other consequential or incidental reliefs. So, it cannot be
said that in the instant case, the relief sought was to
remove the encroachments from the lands or to remove the
unauthorized constructions, which are covered by the
encroachment case or the title suit. They may be incidental
or consequential to the main relief, in giving effect to the
earlier directions or orders of Court. But such relief
cannot be withheld or denied. In the Judgment dated
23.9.1984, rendered in CWJC No.3241/82, the Court
categorically held that non-passing of the award will not
nullify the acquisition, the validity of the acquisition was
upheld by the High Court and the Supreme Court, and the
encroachments or the unauthorized structures were put up by
persons in the property at their own risk, and it was
further observed that once possession of the land was taken
by the Government the fact that the owner of the land
entered upon the land, will not obliterate the consequences
of vesting, and allowed the writ petition filed by the
Society, and quashed the steps taken for derequisitioning of
the land requested by the Authority and issued a writ of
mandamus directing the Collector of Patna to prepare the
award as expeditiously as possible. The plea of the
respondents that the project itself was rendered an
impossibility on account of excessive encroachments or
unauthorized constructions, was repelled, and relying upon
the decision of this Court in Balwant Narayan Bhagde vs.
M.D.Bhagwat and others, AIR 1975 SC 1767, it was held that
once possession of the land was taken by the Government,
even if the owner of the land entered upon the land and
resumed possession of it the very next moment, such act does
not have the effect of obliterating the consequences of
vesting. In allowing the prayer of the Society in CWJC No.
6373/88, by a common judgment dated 30.7.1993, the High
Court was only implementing its earlier order and directions
in CWJC No. 3241/82 which it was bound to do in the
circumstance. We hold that the directions and orders
contained in CWJC No. 3241/82, which were not interfered
with, by this Court in special leave petition, by order
dated 21.3.1984, should be fully and effectively
implemented. We hold so.
11. Mr. Sanyal, senior counsel feebly raised the plea
that the Government authorities did not take possession of a
small portion of the land, about 7 acres; and there is no
award relating thereto, and the proceedings regarding that
portion of the land, had lapsed. This plea is without
substance. In our view the proceedings dated 31.7.1984 is in
substance an award passed in pursuance of the directions
given by this Court in CWJC No. 3421/82. The entire land,
for which request for acquisition was made by the Authority,
was delivered over to the Authority.Possession was taken of
the entire land and the plea that possession of a small
portion of the land was not taken is against the record (see
AIR 1974 SC 1886 at 1889).
12. All the contentions urged on behalf of the
appellants fail. The appeals are wholly without merit and we
dismiss them with costs. It is distressing to note that the
land acquisition proceeding which was initiated for a very
laudable purpose, more than 37 years ago, is not yet
complete. At one point of time, it was brought to the notice
of the Court that even the files relating to the acquisition
of land are not traceable. The High Court was constrained to
hold, on an earlier occasion, that non-traceability of the
files must be attributed to deliberate destruction of the
relevant files by the “interested parties”,and “but for the
intervention of influential persons”, the Government would
not have stayed the entire proceedings as it did on
3.5.1965. We are constrained to observe that the hands of
the interested parties seem to be still active, and the
intervention of such influential persons has not disappeared
(AIR 1974 SC 1888). A laudable and noble cause is delayed
for more than 3 decades, under one pretext or the other. We
express our anguish in the entire episode. We, therefore ,
direct the State of Bihar, its officials, the authorities
and other persons concerned who are seized of the subject
matter of the instant land acquisition proceedings, to
complete the proceedings in the quickest possible time. We
further direct the appellants in these appeals to pay costs
of Rs. 10,000/- in each of these appeals, towards the
Advocate’s fees for the Society.
13. The appeals are dismissed with costs as aforesaid.