Patna Diocesan Corporation, Archbishop Benedict J Osta S.J., Fr.-Devasia T. Chirayil v. The State of Bihar

Judgment

1. 2.

4. 5.

6. The State of Bihar Patna Regional Development Authority through the Vice Chairman, Patna Regional Development Authority, Patna. Vice Chairman, Patna Regional Development Authority, Maurya Lok Complex, Patna. District Magistrate, Patna District, Patna. District Land Acquisition Officer, Patna District, Patna. Budha Grih Nirman Sahyog Samiti Ltd. With its offices at Budha Colony, Through the Chairman, Budha Grih Nirman Sahyog Samiti Ltd., Budha Colony, P.S.-Budha Colony, District-Patna. For the Petitioner : Mr. K.M. Joseph, Advocate For the State : Mr. Lalit Kishore, A.A.G.-III. …………………………………… Respondents Mihir Kr. Jha, J. P R E S E N T HON’BLE JUSTICE MIHIR KUMAR JHA ----------- Heard the parties. In this writ application the petitioner a society registered under the Societies Registration Act registration No. 28/ 56-57 has made the following prayer:- I. That compulsory acquisition of the land minority petitioner’s education institution Bihar Government under Bihar Land Acquisition Act be declared illegal violative mandatory provision of 2 Clause 1 A of Article 30 of the Constitution of India. II. A writ in the nature of Certiorari or any other appropriate writ or order or direction be issued quashing the acquisition of petitioner’s property under the provisions of Bihar land Acquisition Act violation provision of Article 30 of the Constitution of India. III. A writ in the nature of prohibitio or any other appropriate writ order or direction be issued to the Respondent forbidding interfering with the ownership and possession petitioner over the lands of the petitioner used for minority educational institution. IV. That a writ in the nature of mandamus or any other appropriate writ, order or direction be issued to the respondent commanding them to restore to the petitioner the lands of the petitioner compulsory acquired by the State under the provisions of 3 Bihar Land Acquisition Act. V. That alternately Respondents be directed provide petitioner’s educational alternate institution site of equal convenience and value to enable the minority educational institutions to resume/ continue its work of education unhampered. VI. That the petitioner may be awarded appropriate compensation for the loss and damage suffered by it due to illegal action of Respondents violation of provisions of Article 30 of the Constitution of India. VII. That any other relief or reliefs may be awarded to the petitioner as this Hon’ble Court may deem fit and proper in the particular circumstances case. The facts giving rise to this writ application as set out in the writ application is that Christian community in the town of Patna had started running a school in a rented premises in Bankipore 4 since early 1950 and in course of time the Patna diocese purchased several contiguous plots of land at Dujra village under Budha Colony in the year 1959-60. These plots of land purchased were in one chunk for providing land for the school building, play ground, staff quarters and other facilities. It is further case of the petitioner that when some of its plots of land purchased from the raiyats, were made subject matter acquisition proceeding at the instance of Budha Grih Nirman Sahyog Samittee notification under section 4 of the Land Acquisition Act dated 21 January, 1959 for an area of 32.48 acres including land of

the petitioner in this Court in M.J.C. No. 905 of 1959, which was allowed with analogous cases by order dated 2.4.1960 by quashing the aforementioned section 4 notification under the Act dated 21.1.1959. It is the case of the petitioner that after the aforementioned judgment dated 2.4.1960 a decision was taken to shift St. Mary’s Primary School at Bankipore, earlier running in a rented 5 premises in Bakri to Durja in the lands purchased by the petitioner, but the respondent-State had again initiated Land Acquisition Case No. 28 of 1960-61 for acquiring various plots of land including lands of the petitioner in plot nos. 435, 436, 442, 443 and 444 having an area of

0.56, 0.68, 0.04, 0.82 and 0.01 acres of land. The petitioner has stated that despite its protest and contesting the land acquisition proceeding in land Acquisition Case No. 28 of 1961-62 the total area of

2.03 acres were compulsory acquired after offering payment of compensation in terms of the Act. It is further case of the petitioner is that second Land Acquisition Case No. 63 of 1961-62 was again initiated by the respondent-state for acquiring various plots of land including plot nos. 440, 441, 449, 450, 451 and 1025 (Part) for total area of 2.27-1/2 acres. Such land in the second land acquisition proceeding was also completed and possession of the land was also given on 5.2.1962 to Patna Improvement Trust out of which Patna Improvement Trust had handed over 3.02 6 acres of land to Budha Grih Nirman Sahyog Samittee in the year 1975. Such acquisition having made subject matter of number of writ petitions. After the same were disposed of by the judgment of this Court dated 23.5.1984 in C.W.J.C. No. 3241 of 1982 and analogous cases, were also sought to be notified by way of general notice published in the local daily Indian Nation

9.7.1984 directing removal unauthorized occupation by any person. The petitioner had approached the Collector of Patna district by filing a representation claiming not only its continuity of possession over the land in question bearing an area of 2.27-1/2 acres of plot nos. 440, 441, 449, 450, 451 and 1025(p) being an area of 0.32 acres, 0.39 acres,

0.81 acres, 0.31 acres, 0.43 acres and 0. 01-1/2 acres but also an adjudication that the land of the petitioner could not be acquired. It is however the case of the petitioner that its representation was not disposed of by the Collector of the Patna district as a result whereof St. Mary’s Primary School allegedly functioning on the 7 aforementioned plots over an area of 2.27- 1/2 acres was closed down by the petitioner in the year 2003. The petitioner has, also tried to emphasize on the basis of communication dated 27.3.2003 that it was still in possession of 2.27-1/2 acres of land which was acquired in the Land Acquisition Case No. 63 of 1961-62 and therefore when the Vice Chairman, Patna Regional Development Authority, successor body of the Patna Improvement Trust vide letter dated 14.11.2003 had requested the Collector Patna District remove unauthorized occupation acquired including 2.27-1/2 acres land of the petitioner, it had sought to approach this Court by filing the present writ application for the relief mentioned in paragraph-1 of this order. From the facts mentioned in the application, therefore absolutely clear that in the garb of high sounding prayer made in paragraph 1 the crux of the relief is confined to assailing land acquisition proceedings of Land Acquisition Case No. 63 of 1961-62 pertaining to the 2.27-1/2 acres land of 8 the petitioner. From the counter affidavit and the supplementary counter affidavit that has been filed by the respondents, it becomes clear that it is only after 45 years of the initiation of land acquisition proceeding present application has been filed assailing correctness thereof on various grounds. In this respect it has been stated that possession of land of the petitioner after completing the proceedings was taken on

5.2.1962 and the same was delivered to Patna Improvement Trust on 6.8.1962. It would be necessary to notice the stand of State paragraph 4 supplementary counter affidavit wherein history of earlier litigation with regard to the land acquisition in question has been set out at length. Paragraph 4 of the supplementary counter affidavit reads as follows:- “That question i.e, 440, 441, 449, 450, 451 and 1025 part have been acquired vide L.A. No. 63 of 1961- 62 in the year. The acquisition proceeding has been challenged in this Court and in the Supreme Court by filing many writ petitions. In M.J.C. No. 65/62, the High Court of Patna stayed the land acquisition proceedings. The stay was in force 9 questioned from 23.1.1962 to 1.7.1964 and the M.J.C. was finally withdrawn. The acquisition 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 Supreme Court. The appeal was also dismissed. The order of the Supreme Court is reported in Ajodhya Bhagat Versus State of Bihar, A.I.R. 1974 S.C. 1986, C.W.J.C. No. 3421/82 disposed of by the judgment dated 23.5.84. Thereafter C.W.J.C. No. 8426/88, C.W.J.C. No. 6373/88, C.W.J.C. 3720/90 and C.W.J.C. No. 9000/89 was filed which was heard and disposed of by the Hon’ble Patna High Court by a common judgment dated 30.7.1993. Thereafter Civil Appeal Nos. 7803 with 7820-21 of 1995 (arising out of SLP ' Nos. 20490 with 21401-02 of 1993), has been filed against order dated

30.7.1995 (6) SCC 31. The Hon’ble Supreme Court has laid down law observing in para 8 and 9 quoted hereinbelow:- substance “…we are also of the view that the proceedings daed 31.7.1984 (appearing at pages 82 to 84 of paper book, Vol.I, and at pages 203 to 206 of paper book, Vol-II), is contemplated by 12 of the Act. It is signed by the District Land (Collector) Officer Acquisition under the Act, though the signature appears to be illegible. After perusing the aforesaid proceedings dated 31.7.1984, the High Court observed that the State is bound by the directions given by the court earlier in C.W.J.C. No. 3142 of 82, that in the light of the aforesaid Court, proceedings dated 31.7.1984 was passed, that requisites of an award are mentioned in the said order, 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 complied with the directions of the Court and the High 10 provisions of law will not invite -A of the “the wrath” section 11 Act. We are in general agreement with the reasoning and conclusion of the High Court in holding that the 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 or procedure which should be complied with. Since the direction given by the High Court in C.W.J.C. No. 3241/82 should be effectuated, the High directing the authority concerned to sign and complete the award in terms of the earlier order dated 31.7.1984. The reasoning of the High Court that it has power to issue such direction 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- justified Court

15.” The petitioners have also filed reply to the counter affidavit and supplementary counter affidavit and it has taken a plea that the petitioner had not received notice information regarding award for 2.27-1/2 acres of land. Paragraph 14 of the rejoinder of the petitioner to the supplementary counter affidavit becomes relevant as it seeks to give reply to the aforementioned stand of the respondent-State in paragraph 4 of he supplementary counter affidavit. Paragraph 11 14 of the rejoinder affidavit of the petitioner reads as follows:- affidavit “That with regard to the contents of paragraph 4 of the counter Land Acquisition case No. 63 of 1961- 62 was initiated for acquisition of an additional area of 2.275 acres of the petitioners land used for the Minority Education Institution Minor Seminary, Shrine of Mary Mother of Jesus and Staff Quarters) contained in survey plot nos. 440, 441, 449, 450, 451 and 1025 (part). It appears that the acquisition was under stay from 23.1.1962 (School,

1.7.1964 orders of this Hon’ble Court passed in M.J.C. No. 65 of 1962 in which it may be noted that the petitioner was not a party. The matter of acquisition and the application of the petitioner for exemption of the land of the petitioners Minority Education Institution vide annexures- 4,5, 6, 8 and 10 of the writ application were kept pending and no award was passed in the case of the petitioner for long years nor was any communication or notice issued to the petitioner to appear before the Collector or any authority or court for determination of the matter. From Supplementary Counter Affidavit it further appears that an award was passed in L.A. Case No. 63 of 1961-62 by the authority on averments

8.1.1994 u/s 11 A of the Act.” On aforementioned pleadings, this Court would hold that the challenge of the petitioner to the land acquisition proceedings in the Land Acquisition Case No. 63 of 1961-62 is 12 wholly belated and the writ application is fit to be dismissed on the ground of unexplained delay and laches on the part of the petitioner. This aspect of the matter as with regard to delay in challenging he land acquisition proceeding in a writ application to be fatal and is well settled. Reference in this connection may be made of the case of “Keshav Pal and Ors. Vs. State of Bihar & Ors.” reported in A.I.R. 1985 Patna 70 wherein in paragraph 9 and 10 the Division Bench had laid down in this respect in the following words:- 1st “9. These petitioners assigned no reason why they should have waited till the middle of 1982 to come to this Court for challenging the validity of the notification issued on 1st Sept. 1980. In the present case, the notification under S. 4 of the Act was issued The notification under S.6 of the Act was issued on 1st Sept. 1980. The award was prepared on 20th Feb. 1982, and delivery of possession was given on 24th April, 1982. Lordships of the Supreme Court in the case of Aflatoon V. Lt. Governor of Delhi, ((1975)1 SCR 802; (AIR 1974 SC 2077)) have held as follows at page 808: (at p. 2081 of AIR): connection,

1979. June, In “To have sat on the fence and allowed the Government to complete the acquisition proceedings on the basis that the notification under S. 4 and the declaration under S.6 were valid and then to attack the notification on grounds which were available to them at the time when the notification was published would be putting a premium on dilatory tactics. The writ petitions are liable to be dismissed on the ground of laches and delay on the part In

10. of the petitioners.” petitioners should not have waited till 1982 to come to this Court for challenging opinion, validity 13 a time. reasonable petitions, notification issued on 1st Sept. 1980. They ought to have moved this Court within These petitioners should have moved this Court in 1980 for quashing the notification under S. 6 of the Act. In petitioners have offered no explanation as to why the writ petitions were filed after such an inordinate delay and after the entire process of acquisition was over. These writ petitions are liable to be dismissed on the ground of laches and delay on the part of the petitioners. This view is also being supported by the decision in Babu Singh V. Union of India, AIR 1979 SC 1713.” The Submission on behalf of the petitioner that such land acquisition proceeding No. 63 of 1961-62 in which possession of land was already taken on

5.2.1962 by the respondent-State and delivery of possession was effected to the Patna Improvement Trust/ Budha Grih Nirman Sahyog Samittee , is unsustainable on the ground of Act 30 (1-A) of the Constitution of India, in the considered opinion of this Court is an argument of desperation. Art. 30 (1-A) inserted by the Constitution 44th amendment Act 1978 which came into force with effect from 20.6.1979 and the same in no manner could have affected a land acquisition proceeding in which possession had already taken back in the year 1962, a fact which has been mentioned clearly in paragraph 4 and 5 of the supplementary counter affidavit and has not been 14 specifically controverted petitioner. In the opinion of this Court there would be no question of applicability of Article 30 (1-A) of the Constitution as with regard present land acquisition proceeding of the year 1961-62. The submission of counsel for the petitioner basically focusing within the ambit and Article 30 (1A) Constitution is also misconceived for yet another reason. Article 30 (1A) of the Constitution ensures at best that the amount fixed or determined for acquisition of property of educational institution established and administered by minority would not restrict or abrogate the right guaranteed under Article 29 (1) of the Constitution. It would therefore be clear that when 44th amendment came into force introducing the concept of Article 30 (1A) of the Constitution, all that was sought to be ensured to the minority institutions that the amount of compensation for compulsory acquisition of any property of educational institution shall not be illusory so that to take away right of the 15 minority to establish and administer the educational institution of their choice. In the opinion of this Court Article 30 (1A) of the Constitution in no way restricted the power of the State to acquire land and/or property educational education belonging to a minority. Article 30 (1A) of the Constitution reads as follows:- “In making providing compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right ranteed under that clause.” As a matter of fact, reference to even Article 30 (1A) of the Constitution in the context of the present case pertaining challenge acquisition proceeding No. 63 of 1961-62 is again wholly misconceived also on the ground that would not in any way affect the existing provisions of the land acquisition Act as it had existed in the year 1961-62 including the provisions for determination of compensation. A bare look of section 23 16 of the Act in fact would go to show that for the purpose of determination of compensation of the land of the petitioner, in view of land acquisition case No. 63 of 1961-62, was to be strictly governed by the date of section 4 notification which is the only known mode for determination of compensation under the Act. Thus, the provisions acquisition Act including Bihar amendment as they were prevailing on the date of acquisition of land of the petitioner in Land Acquisition Case No. 63 of 1961-62 even cannot be tested on the basis of amendment made in the constitution under Article 30 (1A) of the Constitution brought into force with effect from 20.6.1979. Reliance petitioner, therefore, on the judgment of the Apex Court in the case of Society ST. Joses reported in 2002 (I) S.C.C. 273 will have no application to the facts of the present case as whatever has been observed by the Apex Court would apply to any law which were enacted after six months period prescribed by the Apex Court in the case of St. Joses ( Supra). 17 That apart, the challenge to the land acquisition proceeding of the year 1961-62 on the basis of quantum of compensation cannot be sustained for yet another reason. The provision of the Act is to provide manner of calculation of the amount of compensation and also remedy to the aggrieved person. It is under section 18of the Act that a person aggrieved by the amount of compensation under an award, can seek a reference before the civil court. The period of such filing of the reference being restricted under section 12 (2) of the Act, the petitioner cannot now be allowed to take a plea that it was still in possession of the land in question and therefore it will have right to challenge the provisions of the Act in the name of determination of compensation. Possession of land of the petitioner having been taken way back in the year 1962 as clearly asserted in the supplementary counter affidavit, if the petitioner had remained in possession, the same must be held to be unauthorized possession and the Collector of the Patna district is directed to remove such unauthorized occupation/ Possession of 18 the petitioner within a period of one month from the date of receipt/ production of a copy of this order. According to the provisions of the Act that if there be encroachment of land which has been vested in the State, the same shall be deemed to be free from all encumbrances, way back since the year 1962 in terms of section 17 of the Act, and as such unauthorized possession of the petitioner can not be made a basis for assailing the validity of the land acquisition proceeding. As a matter of fact, the respondents also in the supplementary counter affidavit have also explained this aspect in paragraph 5 which reads as follows:- delivered “That the possession of the lands has been taken on 5.2.1962 6.8.1962. Once the possession of the acquired land has been taken then there is no provision in L.A.Act to return/ reconvey the acquired land to its owner. The Hon’ble Supreme Court has also settled this issue in may cases reported in 1993 A.I.R. (SC) 2517, 2005 (25) AIC SC 649 & 2002 (I) PLJR 466 clearly stating there in that once possession of the land has encumbrances” and cannot be returned to its owner. In L.A.Case No. 63/1961-62 Award has been declared on 8.1.1994 pursuant to the order of Court and there are 76 no of awardees 19 who have not accepted the amount of award. In this view of the matter there is no merit in the writ petition and same is fit to be dismissed.” On the basis of aforementioned factual position, mere assertion of the petitioner that they have not been served any notice under section 12(2) of the Act after declaration of the award dated

8.1.1994, would be of no avail if the petitioner alike other 75 awardees, had not accepted the amount of award and has chosen to ignore the amount of payment under award, it cannot have at least courage and conviction to assert before this Court that the amount of award is not in keeping with the sprit of Article 30(IA) of the Constitution. In the background of analysis of the facts and the findings recorded by this Court, it would be clear that challenge of the petitioner to the process of the Land Acquisition Act including Bihar amendment, in terms of Article 30 (1A) of the Constitution is of no avail and must be rejected on the ground that on the date on which land of the petitioner was acquired and its possession were taken of Article 30 20 (1A) of the Constitution was not in existence so as to nullify the provision of Land Acquisition Act, 1894. Similarly, prayer of the petitioner as with regard to quashing acquisition petitioner’s property on the ground of its being violative of Article 30 (1A) of the Constitution is wholly misconceived as it has already been held that the petitioner’s properties were acquired in the year 1961- 62, whereas, Article 30 (1A) of the Constitution came into effect only on

20.6.1979. The further relief claimed by the petitioner that the respondents should be forbidden of their ownership and possession of the land once belonging to the petitioner, must be and is hereby rejected on the ground that the ownership and possession of land of the petitioner being subject matter of Land Acquisition Case No. 63 of 1961-62 had already vested in the State free from all encumbrances whereafter its possession was taken on

5.2.1962 and was delivered to the Patna Improvement Trust, Budha Grih Nirman Samittee on 6.8.1962.Petitioner, therefore, must be held to be in unauthorized 21 occupation of such land measuring 2.27-1/2 decimals of land which was subject matter of Land Acquisition Case No. 63 of 1961-62, and in case the petitioner does not voluntarily relinquish illegal possession within a period of one month from the date of receipt/ production of a copy of this order, the respondent, Collector of Patna District must do so by removing such illegal possession of the petitioner over the land in question. The relief as prayed for by the petitioner that an alternative site of equal value should be made available, cannot be claimed by the petitioner as a matter of right because the Act only envisages payment of statutory compensation. There is nothing in the Act which also requires that the State is bound to provide alternative site of equal size convenience and value to a person whose land has been acquired. The last prayer that the petitioner should be awarded appropriate compensation for the loss and damage suffered by its due to alleged illegal action of the respondent in violation of provisions of Article 30 (1A) of the Constitution has to be only noted 22 for its being rejected. The petitioner’s projection of interest of minority cannot override the dominant public interest nor any alleged preferential right could be made a matter of land acquisition neither envisaged nor contemplated in law. It would infact be really trasvesty of law and mockery of justice if the petitioner on his showing, having remained unauthorized occupation of the land in question over 45 years, despite vesting of land in the State and its possession also handed over to the Patna Improvement Trust, will have also the audacity to claim compensation for its own illegal act of remaining under unauthorized occupation. Before parting with, this Court must hold that the present writ application is wholly a frivolous writ application and was aimed to only unsettle the concluded land acquisition proceeding in the garb of sounding prayer suppressing relevant facts which could be brought on the records only by the State in its counter affidavit. Such practice of an interested individual can be understood, but when the same is resorted to by the 23 Society of educated persons with an avowed aim and object for social cause and charitable purposes, it has to be both deprecated and discouraged by dismissing the writ petition as also imposing exemplary cost. The present case infact is a classic example of abuse of process of Court and therefore, this Court would direct the petitioner to pay a sum of Rs. 10,000/- by way of cost, which must be deposited by the petitioner within a period of one month in the funds of Patna High Court Legal Services Authority. In the result, this application is dismissed with cost of Rs. 10,000/-. ( Mihir Kumar Jha, J.) Patna High Court Dated the 18th September 2009 Abhay Kumar/