Jharkhnad State Hng.Board & Anr vs Akhileshwar Singh & Ors

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3777 OF 2011

(arising out of SLP (C) No. 23216 of 2009)

Jharkhand State Housing Board & Anr. ... Appellants

VERSUS

Akhileshwar Singh & Ors. ...Respondents

O R D E R

1. Jharkhand State Housing Board and its functionary,

aggrieved by the order dated 4th of March, 2009 passed by the

Division Bench of the Jharkhand High Court in LPA No. 248 of

2008 affirming the judgment and order dated 13th of May,

2008 passed by the learned Single Judge in W.P. (C) No. 216

of 2008, have preferred this special leave petition.

2. Leave granted.

3. Bereft of unnecessary details facts giving rise to the

present appeal are that a Notification dated 22nd of July, 1964

was issued under Section 4 of the Land Acquisition Act for

acquisition of different plots of land in Mouja Hirapur within

the district of Dhanbad in the State of Jharkhand. Thereafter

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Gazette Notification under Section 6 of the Land Acquisition

Act was issued on 17th of August, 1965. The acquisition was

for the purpose of housing scheme to be executed by the

predecessor-in-interest of the appellants i.e. Bihar State

Housing Board. Ultimately an award was made in the year

1976 and the predecessor-in-interest of the appellants was

handed over the possession of the land measuring 66.44 acres

of land. Shri Ram Narayan Aggarwala, the predecessor-in-

interest of the writ petititioner-respondent No. 1 owned out of

the acquired land an area of 0.36 acres of land i.e. 4 decimals

of Plot No. 397, 3 decimals of Plot No. 398 and 29 decimals of

Plot No. 399 of Mauja Hirapur. Separate award i.e. Award No.

80 was made in respect of this land. However, physical

possession in respect of this 0.36 acres of land belonging to

Shri Ram Narayan Aggarwala could not be taken, then as it

had structure over it and was in occupation of said Shri Ram

Narayan Aggarwala. Said Shri Ram Narayan Aggarwala did

not accept the aforesaid award and filed an application for

reference to the court of competent jurisdiction for

enhancement of the amount of compensation. He further did

not receive the amount of compensation and filed Writ Petition

No. 212 of 1976 before the Patna High Court challenging the

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acquisition of the aforesaid piece of land. A Division Bench of

the Patna High Court by its judgment dated 29th of April, 1997

dismissed the writ petition and upheld the acquisition.

4. Aforesaid Shri Ram Narayan Aggarwala thereafter sold

the land to Shri Sital Singh, Kirani Singh, Sudama Devi and

Pukari Devi, predecessor-in-interest of the writ petitioner-

respondent No. 1 herein, hereinafter referred to as the writ

petitioner on 16th of January, 1986. The purchasers

approached the State Government for de-notification of the

land from acquisition under Section 48 (1) of the Land

Acquisition Act and when did not succeed, filed writ petition

bearing CWJC No. 3047 of 1992 (R) before the Ranchi Bench

of the Patna High Court challenging the acquisition itself. A

Division Bench of the Patna High Court by its order dated 20th

of October, 1992 dismissed the petition as withdrawn. As the

writ petitioner was illegally in possession of the land acquired,

the Bihar State Housing Board filed petition for his eviction

under the provisions of the Bihar State Housing Board Act.

The competent officer under the said Act by its order dated 1st

of June, 1999 ordered eviction of the writ-petitioner and also

directed for removal of the unauthorized construction over the

said land. Aggrieved by the order of the competent officer he

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preferred appeal and the same was dismissed by the appellate

authority by order dated 15th of February, 2000. The

appellant Jharkhand State Housing Board thereafter by its

letter dated 5th of November, 2007 asked the writ-petitioner to

vacate and remove the encroachment and aggrieved by the

same, he preferred W.P.(C) No. 216 of 2008 before the High

Court inter alia praying to issue notification for release of the

land. A learned Single Judge of the High Court by its order

dated 4th of May, 2008 disposed of the writ petition with a

direction to the State Government to take final decision on the

proposal of de-notification of the land and till such a decision

is taken, not to take any coercive action for ejecting him.

Aggrieved by the same appellants preferred appeal and the

Division Bench of the High Court by the impugned order

dismissed the same.

5. Mr. V. Shekhar, Senior Advocate appearing on behalf of

the appellants submits that several attempts were made to

question the legality and validity of the acquisition but the

same was upheld and, in fact, writ petitioner had not

purchased the property but a litigation. He points out that an

order of eviction was passed against him by the competent

officer under the Bihar State Housing Board Act and the

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challenge to the same had failed and, therefore, he had no

right to challenge the consequential order issued by the

appellants to vacate and remove the encroachment from the

acquired land. He further submits that the State Government

considered the proposal of the Deputy Commissioner for de-

notification of the land and the State Government having

turned down the same, writ petitioner cannot compel the State

Government to de-notify the acquisition.

6. Mr. Ajit Kumar Sinha, Senior Advocate appearing on

behalf of the respondent No. 1 submits that as the proposal of

the de-notification of the land from acquisition was made by

the Deputy Commissioner, the State Government was obliged

to take a final decision in that regard and the High Court did

not err in issuing such a direction. He further submits that

the land over which the respondent had made construction

was never acquired and, therefore, the respondent cannot be

asked to vacate the same.

7. We have bestowed our consideration to the rival

submissions and we find substance in the submission of the

learned counsel for the appellants. Admittedly the land in

question initially belonged to Shri Ram Narayan Aggarwala

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and was purchased by the predecessor-in-interest of writ

petitioner. Shri Ram Narayan Aggarwala had challenged the

acquisition by filing a writ petition which was dismissed.

Thereafter, according to the case of the writ petitioner himself,

it is his predecessor-in-interest who purchased the property

from Shri Ram Narayan Aggarwala. An attempt was made by

them also to assail the acquisition by filing a writ petition but

they did not succeed. Thereafter, the competent officer under

the Bihar State Housing Board Act ordered eviction of the

respondent as also for removal of the unauthorized

construction. Aggrived by the same he preferred appeal but

the same was dismissed.

8. In the light of the aforesaid order of the competent

officer, writ petitioner was served with the letter dated 5th of

November, 2007 asking him to vacate and remove the

construction. He did not challenge the orders of competent or

appellate authority passed under the Bihar Housing Board

Act, directing removal of encroachment but after the letter

dated 5th of November, 2007 by which he was asked to vacate

and remove the encroachment, he preferred the writ petition

challenging the same inter alia alleging that the proposal for

de-notification of the land is pending before the State

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Government and, as such, direction to vacate and remove the

construction is illegal. From the facts stated above it is

evident that the respondent instead of purchasing the

property, in sum and substance, had purchased a litigation

and attempted to deny the possession to the rightful owner by

hook or crook. He has no right to seek de-notification of the

land acquired. In any view of the matter said power had been

conferred on the State Government and from the statement

made in the counter affidavit filed by the State, same has

been refused and, therefore, in our opinion, writ petitioner is

not entitled for any relief.

9. Mr. Sinha, while resisting the relief prayed for by the

appellants had submitted that the land in question was never

acquired. This argument has only been noted to be rejected.

Admittedly, the writ petitioner had purchased the acquired

property from Shri Ram Narayan Aggarwala. Had it not been

so, there was no occasion for said Shri Ram Narayan

Aggarwala to challenge the acquision. Not only that after the

purchase of the property an attempt was made to challenge

the acquisition by the predecessor-in-interest of the writ

petitioner also but that had also failed. Therefore, there is no

escape from the conclusion that the land in question was

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acquired under the Land Acquisition Act. In the facts and

circumstances of the case we are of the opinion that the

direction given in the impugned order is absolutely uncalled

for.

10. In the result, the appeal is allowed, impugned

judgment and order of the High Court is set aside and the writ

petition stands dismissed. There shall be no order as to

costs.

................................................J.

(HARJIT SINGH BEDI)

................................................J.

(CHANDRAMAULI KR. PRASAD)

NEW DELHI,

APRIL 20, 2011.