Full Judgment Text
CA No. ... @ SLP(C) 23216 of 2009
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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,
th
aggrieved by the order dated 4 of March, 2009 passed by the
Division Bench of the Jharkhand High Court in LPA No. 248 of
th
2008 affirming the judgment and order dated 13 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
nd
present appeal are that a Notification dated 22 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
th
Act was issued on 17 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
th
the Patna High Court by its judgment dated 29 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
th
petitioner on 16 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
th
Division Bench of the Patna High Court by its order dated 20
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.
st
The competent officer under the said Act by its order dated 1
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
th
authority by order dated 15 of February, 2000. The
appellant Jharkhand State Housing Board thereafter by its
th
letter dated 5 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
th
dated 4 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
th
officer, writ petitioner was served with the letter dated 5 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
th
dated 5 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.