@JUDGMENTTAG-ORDER
Aftab Alam, J.@mdashThese three writ petitions seek the same relief(s) and arise from the same set of facts and circumstances. These were, therefore, heard together and are being disposed of by this common order.
2. An anamolous situation has arisen due to the mistake committed by the Respondent authorities. In a certificate proceeding held for the recovery of the dues of estate duty against the estate of a private individual, the Respondent authorities got certain plots of land auction sold under the notion that those plots were part of the estate of the deceased. But they seem to have over-looked that those plots being part of a much larger area had vested in the State in a land acquisition proceeding. Their action has thus put the interests of the Petitioners, who purchased those plots by auction in sales made through court in sharp conflict with those of the parties for whose benefit the lands were taken in acquisition.
3. In the year, 1961, the State proceeded to acquire a large area of land (57.71 acres) under the emergency provisions of the Land Acquisition Act. The acquisition was being made partly in favour of the Patna Improvement Trust (now Patna Regional Development Authority, Respondent No. 3 in C.W.J.C. No. 2586 of 1996) and partly in favour of a housing co-operative society under the name of Budha Sahkari Grih Nirman Samiti (Respondent No. 4 in C.W.J.C. No. 2586/1996). While the acquisition proceeded haltingly, passing through litigations in this Court and the Supreme Court, a completely unrelated development crossed the course of the acquisition proceeding. On 1.11.1969 a certificate proceeding was initiated against the widowed wife of one Dwarika Mahto (deceased) for the realisation of Rs. 13,09,327/ - as dues of estate duty against the estate of the deceased. In that proceeding, at the instance of the Respondent authorities certain plots of land, which were part of the larger area being the subject matter of the acquisition proceeding and which had already vested in the State were auction sold apparently in the belief that those plots were part of the estate of the deceased Dwarika Mahto. The Petitioners in these three cases purchased those plots in sales made in the certificate proceeding and later confirmed by the Certificate Officer. At that time no one, including the Petitioners, seem to have realised that those plots being part of the larger area having vested in the State were no longer open for sale as being part of the estate of an individual person. It may further be noted here that the sale of the plots in question in the certificate proceeding was also affirmed by this Court and the Supreme Court when a writ petition and an appeal filed by one of the heirs of Dwarika Mahto seeking to challenge auction sale were rejected by this Court and the Supreme Court respectively.
4. Much later, obstructions in the way of the land acquisition proceeding were finally cleared by the Supreme Court by its judgment and order dated 31.8.1995 passed in Civil Appeal No. 7803/1995 with Civil Appeal Nos. 7820-21/1995 [reported in
5. In C.W.J.C. No. 2586/1996 there are five Petitioners who claim to have purchased portions of plot No. 614 under Khata No. 5 of Tauzi No. 14847 and plot Nos. 478 and 492 under Khata No. 82 of Tauzi No. 14842.
6. In C.W.J.C. No. 1443/1996 there are twenty Petitioners who claim to have purchased portions of plot No. 714, under Khata No. 83, of Tauzi No. 14842.
7. In C.W.J.C. No. 2104/1996 there is a single Petitioner who claims to have purchased plot No. 869 under Khata No. 83 of Tauzi No. 14842.
8. All the plots are situated at Mohalla Dujra, P.S. Budha Colony, in the town of Patna.
9. At this stage, it will be necessary to have a closer look on the facts and circumstances relating to the proceeding under the Land Acquisition Act and the developments taking place in that proceeding. It may be stated here that the Supreme Court judgment in Civil Appeal No. 7803/1995 contains the facts relating to the acquisition proceeding most succinctly and it would be impossible to find a more accurate narration of those facts anywhere else. I, therefore, propose to reproduce below the relevant portions from the Supreme Court judgment:
5. Budha Grih 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 C.W.J.C. 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 11.7.1962. 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 entire controversy in this batch of appeals is regarding this acquisition, initiated u/s 4 read with Section 17(4) of the Act ("emergency" acquisition). The Notification relating thereto is dated 4.2.1959. The declaration u/s 6 was made on 4.5.1969 (sic). 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 Boring 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 u/s 4 read with Section 17(4) of the Act, proposing to acquire 64.48 acres of land was promulgated on 8.6.1961. There was an understanding that upon acquisition, out of the above land, 32.48 acres would be transferred to the Society. A declaration u/s 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 full 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
7. The above events led to the filing of C.W.J.C. 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 C.W.J.C. NO. 342/82 and for other reliefs and complete the acquisition proceedings. The Appellants herein filed C.W.J.C. No. 8426/86 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 C.W.J.C. No. 6373/88. Before us, as also before the High Court, the objections of the Appellants and intervenors against the land acquisition proceedings are three fold:
(i) X X X X X X X X X X.
(ii)X X X X X X X X X X.
(iii) X X X X X X X X X X X.
10. Rejecting after due consideration the submissions made on behalf of the Appellants, the Supreme Court dismissed the appeals giving the following directions:
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 filed must be attributed to deliberate destruction of the relevant files by the "interested parties", and "but for the intervention of influential persons", the Government could 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
11. It was in these circumstances that the general notice was issued by the Collector, Patna which comes under challenge in these three writ petitions.
12. Now coming to the proceeding in which the Petitioners purchased the disputed plots in sales made through courts.
13. According to the Petitioners a certain Dwarika Mahto, resident of Mohalla Lodipur, P.S. Budha Colony, in the town of Patna died some time in the year, 1965, leaving behind a widowed wife Barti Devi. The vast landed property in the town and district of Patna owned by him during his life time, on his demise incurred a liability of Rs. 13,09,327/ - as estate duty. As the heir of the deceased failed to make payment of estate duty, a proceeding under the Bihar and Orissa Public Demand Recovery Act being Certificate Case NO. 1237/1969-70 was initiated on 1.11.1969 against Barti Devi, the widowed wife of Dwarika Mahto for its realisation, estate duty being the first charge on the properties left behind by him. In course of the certificate proceeding a general notice (Annexure-1) was issued on 12.3.1980 in the Hindi daily ''Arya Varta'' at the instance of the Collector, Patna putting up a number of plots including the disputed plots as mentioned above for auction sale for the realisation of the Government dues. On 11.4.80 plot No. 614 was put on auction sale. Petitioner No. 5 made a bid of Rs. 1,65,000/ - for an area of 15 kathas in that plot. His bid was accepted and he deposited the entire bid amount by three treasury challans dated 11.4.1980, 5.5.1880 and 21.4.1980 (Annexure-2).
14. On 30.9.1981 the remaining portion of plot No. 614 (13 kathas in area) was similarly sold to Petitioner No. 4 by public auction and a sale certificate dated 28.1.1982 (Annexure 3) was issued by the Certificate Officer, Sadar, Patna in his favour.
15. On 14.11.1986 plot No. 492 was put on auction sale. Petitioners 2 and 3 made bids for different portions from that plot and on their bids being accepted, Petitioner No. 2 deposited her bid amount of Rs. 28,500/ - (for 4 1/2 kathas of plot No. 492 with a total area of 8 kathas) by challan No. 36505, dated 14.11.1986 (Annexure 5). Petitioner No. 3 similarly deposited his bid amount of Rs. 22,250/ - (for the remaining 3 1/2 kathas of plot No. 492 by challan No. 736506, dated 14.11.1986 (Annexure-5). The Certificate Officer, Sadar, Patna then issued sale certificate in favour of Petitioners 2 and 3. The sale certificate issued in favour of Petitioner No. 2 is at Annexure-7 which shows Petitioners No. 3 on the southern boundary as auction purchaser of the remaining portion of the plot.
16. Similarly on 29. 2.1986 plot No. 478 was put on auction sale. Petitioner No. 1 made the highest bid of Rs. 41,500/ - for 6 kathas 10 dhurs being part of that plot. Petitioner No. 1 deposited the bid amount on the same day by challan No. 736996 (Annexure 8) and on 29.12.1986 the Certificate Officer issued the sale certificate (Annexure-9) in his favour.
17. It is stated that on the basis of the sales made in their favour, the Petitioners came in possession of their respective pieces of land. Since then they have constructed houses on these plots and they continue to remain in possession of their lands.
C.W.J.C. No. 1443/96
18. This writ petition relates to plot No. 714 which too was notified for being put up for sale in the public notice in the Hindi newspaper ''Aryavarta'' of 12.3.80 (Annexure-1). This plot, came up for auction on 11.4.80 and the twenty Petitioners jointly made the highest bid of Rs. 3,06,000/ -. Two sale certificates, one in respect of 4 1/2 kathas and other in respect of 19 1/2 kathas was issued to the Petitioners.
19. In connection with the sale of plot No. 714 it is important to note that one Ram Ayodhya Rai @ Jhulan Rai claiming to be the heir of the deceased Dwarika Mahto tried to challenge the auction sale of plot No. 714. However, his challenge to the sale failed successively before the Certificate Officer, the Collector Patna the Commissioner, Patna Division and finally before the Board of Revenue. Ram Ayodhya Rai then filed a writ petition being C.W.J.C. No. 1187/1982 seeking to challenge before this Court the auction sale of plot No. 714. That writ petition was dismissed by judgment and order dated. 9/4/1985 (Annexure-4 in C.W.J.C. No. 2586/1996) passed by a division Bench of this Court. An appeal against the judgment of this Court was dismissed by order, dated 14.10.1985 passed by the Supreme Court in Special Leave to Appeal (Civil) No. 6233/1985. According to the Petitioners the orders passed by this Court and the Supreme court impliedly affirmed the auction sale of the disputed plots.
20. It is further stated, by the Petitioners that after the judgment and order passed by the High Court on 9.4.1985, the possession of the disputed land was made over to them with the help of the Magistrate and police on 26.4.1985 and since then the Petitioners are coming in peaceful possession over the plot in question. They have since constructed their houses over the lands of plot No. 714.
21. It is further stated that Ram Ayodhya Rai having himself failed right upto the Supreme court, got a suit being T.S. No. 394/1985 filed by his brother Jangli Rai in respect of the disputed plot. That suit was also dismissed on contest in the Petitioners'' favour.
22. It is asserted repeatedly by the Petitioners that from 26.4.1985 they are in possession over the land and living there after constructing their houses.
C.W.J.C. No. 2104/96
23. In this case the dispute relates to plot No. 809. According to the Petitioner on 14.11.1986 an area of 3 kathas 10 dhurs out of this plot was auction sold in favour of one Jai Krishna Singh in aforesaid certificate case. The Certificate Officer issued sale certificate dated 21.12.1986 in favour of Jai Krishna, a copy whereof is at Annexure-5. He was given possession of the land with the help of the Magistrate and the police on 20.7.1987. The Petitioner of this case later purchased that piece of land (being part of plot No. 869 measuring to an area of 3 kathas 10 dhurs) from Jai Krishna Singh by registered deed dated 15.7.1995. She got her name mutated in respect of the land and continues to be in its peaceful possession.
24. As noted above the Petitioners in all the three cases assert that they are in peaceful possession of their respective pieces of land since long. Some of them claim to have constructed their houses after having their construction plans duly sanctioned by the P.R.D.A.
25. In the above mentioned facts and circumstances the question arises how to reconcile the outcome of the two proceedings which apparently appear to be irreconciable.
26. Mr. Basudeo Prasad, learned Senior counsel appearing for the Petitioners submitted that by virtue of the general notice issued in the news paper dated 12.3.1980 announcing the sale of the disputed plots and the actual sale of those plots through court in execution of the certificate case the disputed plots must be deemed to have been released from the acquisition proceeding. Mr. Prasad further submitted that the release from acquisition may be brought about in a manner other than the one provided u/s 48 of the Land Acquisition Act. In support of his submission he relied upon a Supreme Court decision in the
19. Then reliance is placed on Section 48 which provides for withdrawal from execution. The argument is that Section 48 is the only provision in the Act which deals with withdrawal from acquisition and that is the only way in which Government can withdraw from the acquisition and unless action is taken u/s 48(1) the notification u/s 48(1) would remain (presumably for ever). It is urged that the only way in which the notification u/s 4(1) can come to an end is by withdrawal u/s 48(1). We are not impressed by this argument. In the first place u/s 21 of the General Clauses Act (No. 10 of 1897), the power to issue a notification includes the power to rescind a notification u/s 4 or u/s 6, and withdrawal u/s 48(1) is not the only way in which a notification u/s 4 or u/s 6 can be brought to an end Section 48(1) confers a special power on Government of withdrawal u/s 4 and 6, provided it has not taken possession of the land covered by the notification u/s 6. In such circumstance the Government has to give compensation u/s 48(2).
27. He also relied upon a Bench decision of this Court in Ram Sarowar Thakur v. State of Bihar and Ors. 1978 B.B.C.J. 726 : 1979 P.L.J.R. 112 (para 8).
28. I am unable to accept the submission and, in my view, the decisions relied upon by Mr. Prasad do not support his submission that the purported auction sale of the disputed plots in the execution of the certificate case must be deemed to have the effect of releasing those plots from the acquisition proceeding. To my mind release from acquisition whether u/s 48 of the Land Acquisition Act or otherwise can only be the outcome of the some action based on an application of mind by the concerned authority to the material facts and circumstances of a given case. There can be no release from acquisition by inadvertance or by an action resulting from mistake or through oversight, as in this case.
29. Moreover from the Supreme Court judgment in Civil Appeal No. 2803/1995
The relevant portion of Section 48 of the Act is as follows:
48(1) Except 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.
This section vests absolute power in the State Government to withdraw from acquisition any land which has been notified for acquisition subject to only one condition that such power shall be exercised only before possession has been taken.
30. In that decision, however, this Court arrived at the finding that possession had not been taken and, therefore, it was permissible to release the lands from acquisition.
31. I am, therefore, not prepared to go so far as to hold that the disputed plots must be deemed to have been released from acquisition. But I am still of the view that in the peculiar facts and circumstances of the case the Petitioners are entitled to the reliefs claimed by them. It may be noted that there is not the faintest smell or any tinge of any unfair practice on the part of the Petitioners. In execution of a certificate case public sale notice was issued at the instance of the Collector, Patna. As invited by the notice, the Petitioners participated in the public auction and made their bids. The Petitioners'' bids were highest and those were accepted by the Certificate Officer. As required by the authority they deposited the bid amounts on the same day. Sale certificates were issued in their favour and possession of the respective pieces of land was also given to them. It is seen that the sale of one of the plots in dispute being plot No. 714 was sought to be challenged and the challenge failed right upto the Supreme Court. The earliest sale took place in the year, 1980 and the last in December 1986. The Petitioners, are thus, in possession of the disputed lands for the past 18 years and a number of them have constructed houses after making huge investment. In these circumstances I feel it would be highly unjust and unfair to declare the sales as being void and to let them be ejected from their respective pieces of land on refund of the consideration money paid by them. This would amount to subjecting the Petitioners to great hardship due to the mistake of the Respondent authorities and for absolutely no fault on their part.
32. This Court, therefore, in exercise of its writ jurisdiction and having regard to the peculiar facts and circumstances of this case restraints the concerned authorities, including the P.R.D.A. and the concerned Cooperative Society from forcibly evicting the Petitioners from their respective pieces of land. With a view that no further problems may arise in future the Petitioners may make applications before the P.R.D.A. and/or the concerned cooperative Society to whom the disputed plots of land might have been assigned and on such applications being made the P.R.D.A and/or the Cooperative Society would make the formal allotment of the respective pieces of land in favour of the Petitioners. It is made clear that the Petitioners'' rights would be confined strictly to the respective areas purchased by them in court sales in Certificate Case No. 1237 of 1969-70.
33. The P.R.D.A. and/or the concerned Cooperative Society would be entitled to proportionate refund from the State Government. The refund will be made to them not on the basis of the consideration money paid by the Petitioners for the sale of those plots but on the basis of the payments made by the P.R.D.A./Cooperative Society for the total area which was the subject matter of acquisition for their benefit.
34. In the result, these writ petitions are allowed with the aforesaid observations and directions.
