Sudarshan & Ors. v. The State of Jharkhand & Ors.

Learned counsel for the petitioners, Mr. Mahesh Tewari has further submitted, that 1 decimal of land of Plot No. 911 and 5 decimals of Plot No. 913, i.e. total 6 decimals of land have never been acquired and the original petitioner has constructed 06 shops over the same, which are in existence as on today. Learned counsel for the petitioners, Mr. Mahesh Tewari has further submitted, that the rent is being paid to the State with respect to those shops situated over 06 decimals of land and even electricity supply has been given, recognizing the ownership over the land of the original petitioner. The dispute cropped up in the year 2005, when the respondents/State started construction over 06 decimals of land i.e. 1 decimal of Plot No. 911 and 5 decimals of Plot No. 913 of Khata No. 1. Learned counsel for the petitioners has further submitted, that though 10 acres of land claimed to be acquired by the State for the purpose of milk supply scheme, of which compensation has been paid to the original petitioner with respect to 25 decimals of land, but the purpose has frustrated as not a single litre of milk is being processed over the such establishment and thus the land is fit to be returned to the concerned raiyats after accepting the compensation from the concerned raiyats paid by the State in view of the judgment passed by the Apex Court in the case of Hamid Ali Khan (D) through Lrs. & Another Vs. State of U.P. & Ors. reported in 2021 SCC Online SC 1115, Para-37 to 42 of which may profitably be quoted hereunder:-

37. What is relevant for the purpose of this case is to find the following: (1) Whether there were relevant material before ethe Government to invoke power under section 17(4)? 5 (2) Lastly, whether the government applied its mind?

38. We have noticed the material which consists of the communications addressed to the second respondent and the communications by the third respondent. Apart from the same, the usual certificates/forms indicating inter alia that there was no place of worship located in the scheme was no doubt available. But the point is only whether there was material for dispensing with the inquiry under Section 5A and even, more importantly, whether the authority applied its mind to it. Even the notification under section 17(4) came to be issued after more than two years of the proposal sent sometime in March, 2006 if not earlier. We have already noted the fact that declaration under section 6 came to be issued only on 9.4.2009, just two days prior to the first anniversary of the date of notification under section 4. More importantly, we have noticed what finally impelled Government to issue the notification, namely, the apprehension that if it is not issued within one year of the section 4 notification the acquisition would lapse. This had nothing to do with urgency which would have manifested in the section 6 declaration being issued much earlier. This must also be viewed in the background that though the Section 4(1)/(17) Notification was earlier issued in regard to 52.361 hectares on 08.10.2004, the declaration under Section 6 was issued only on 07.10.2005.

39. The statutory authority under section 5A of the Act is expected to give a fair hearing. It can stand between an uncalled for proposal to acquire property. Disputed questions of facts in regard to the property to acquire the property are to be considered by the same Authority. Yet another pertinent aspect is the fact that the subject matter of the second acquisition was 2 and odd hectares. It was apparently just the appellants, who had to be given a hearing.

40. We would therefore think that in the facts of this case, having regard to the nature of the scheme, the delay with which section 6 declaration was issued, possession taken and the nature of the material on the basis of which the proposal was processed, the appellants are justified in contending that the notification under 17(4) dispensing with the inquiry under Section 5A was unjustified.

41. We may notice another aspect. This appeal arises from the order passed by the High Court in the year 2000. While issuing notice, this Court in the SLP stage ordered status quo as on 6.11.2009 be maintained. Thereafter, the leave was granted on 27.1.2012. The interim order was however directed to continue. It is after nearly 12 years that the case is finally being disposed of. In the meantime, the Land Acquisition Act was repealed and the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 has taken its place. Therefore, there is no question of the matter being considered for an inquiry being held under section 5A. We have also noted that there is no denial of the allegation in the writ petition about the lie of the property, viz., it not being in the middle of the scheme area.

42. The appeal is allowed. The impugned judgment is set aside and the writ petition filed by the appellants shall stand allowed 6 and the impugned notifications and proceedings based on the same shall stand quashed. The property shall be returned back to the appellants. This will be without prejudice to the rights/powers available to the respondents under law. Learned counsel for the petitioners, Mr. Mahesh Tewari has buttressed his argument relying upon the averments made in paras-4 to 19 of I.A. No. 4509/2022, which may profitably be quoted hereunder:-

4. That out of these 10 Acres of lands 25 decimals of land belonging to the ancestors of these petitioners were acquired out of 31 decimals of land of which they were being legal owners and raiyats. 5. That the compensation of 25 decimals of land had been paid to the ancestors of the present petitioners, but till today not a single inch of the said land has either been used / utilized for a single day for the purposes for which it was acquired i.e. for establishment of a Milk Dairy Firm at Dhanbad, which would be evident from the photographs annexed herein. That the 10 Acres of land which had been acquired for the 6. said purpose can broadly be divided into four parts as on today. First is 120' x 700' leading to the going and coming to Mahabir Nagar within 10 acres is not being used for Milk Diary Project. 7. That thereafter these 10 acres of land can be broadly divided into four parts. First dairy form itself, which is photograph no. 3 contains of one old building and one building under construction surrounded by a boundary wall, which is about 2 Acres. 8. That it is very necessary for the petitioners to bring to the notice of this Hon'ble Court that not a single liter milk is either produced or received from any of the farmers in this milk project right from the date of its acquisition i.e. in the year 1962. That save and except one small building carrying the 9. name of Dhanbad Milk Diary was built in the year 1970 and one half constructed new building being done in the year 2021, there is no other activity going on in the said area. This area surrounded by a boundary wall and one old building and one half constructed new building has a boundary wall and within this boundary wall is about 3 acres of land. That nearly 2 acres out of 10 acres of land has been used 10. as Durga Mandup along with huge boundary wall and a huge gate about 2 acres of the land out of these 10 acres of land. 11. That about 2 Acres of land belonging to the Diary Firm opposite to the main gate of the Dhanbad Diary Firm and behind the Durga Mandup measuring about 2 Acres is lying completely vacant / vacant for the last 60 years i.e. after its acquisition, but is surrounded by a boundary wall. 12. That no activity of any milk diary or any other such activity is going on over the said land right from its acquisition in the year 1962. That however, the main point to be considered by Your 13. Lordship is that about 89 decimals of land out of 10 acres of land is being used for agricultural purposes i.e. Bagan by one Kailash 7 Malakar since 1970 and thereafter. 14. That the portion of the land acquired from the ancestors of these petitioners i.e. 25 decimals of land is lying vacant even today without being used for a single day for any milk purpose or any purposes for which it was acquired. 15. That moreover the lands, which have been left for passage to go to the firm of said Kailash Malakar is also about 10 to 15 decimals. 16. That there is not a single activity of any milk produce activity which will be also evident from a close perusal of the photograph which is annexed herewith. 17. That now the respondents authorities are only harassing the petitioners on the ground that this 6 decimals of land which the property of these petitioners have been acquired, but neither any compensation has been paid nor the same was ever possessed by the respondents authorities for a single day till today. That under these circumstances in view of section 36 read 18. with section 48 of the Land Acquisition Act a further prayer is being made before this Hon'ble Court to release the 25 decimals of agricultural land belonging to the petitioners, which have been acquired for establishment of a Milk Diary Firm, but till today has not been used for the same. 19. That the land of 2 acres being the Durga Mandup and opposite to the main gate of Dhanbad Diary measuring 2 acres is lying completely variant / vacant as would be evident from photograph P/13. Learned counsel for the petitioners, Mr. Mahesh Tewari has further submitted his argument in following manners :- (i) That there are anomalies with regard to land acquisition case number from where 10 acres of land as claimed by the State has been acquired, whether the said land acquired vide Land Acquisition Case No. 20/1961-62 or Land Acquisition Case No. 110/1961-62? (ii) That the compensation with respect to 06 decimals of land has not been paid to the writ petitioners. (iii) That out of 10 acres of land, 02 acres of land has been used as Durga Mandap as apparent from Annexure-P/5 to the I.A. No. 4509/2022, 89 decimals of land have been used by a stranger known as Kailash Malakar since 1970, 03 acres of land have been used by Dhanbad Milk Diary and a common passage measuring 120' x 700' is going through the alleged acquired land to Mahabir Nagar, having both sides, the 8 land of the diary, as claimed by the respondents, therefore, practically the State has approximately 2 acres of land out of 10 acres of land as claimed by them, and as such because of non-utilization of the land within 05 years of the acquisition of the land, it has to be returned to the raiyats under Section 48 of the Land Acquisition Act.,1894. Learned counsel for the petitioners, Mr. Mahesh Tewari has further submitted, that the land is only source of livelihood of the petitioners, though claimed by the State to be acquired, but the petitioners are paying rent and they are in possession over the same and thus, the entire Land Acquisition Case No. 20/1961-62 or Land Acquisition Case No. 110/1961-62 are meaningless for the State, as the compensation for 6 decimals of land has not been paid to the petitioners till date. Learned counsel for the petitioners, Mr. Mahesh Tewari has placed Section 46 of the C.N.T. Act and submited that the Deputy Commissioner's permission under section 46 of the C.N.T. Act has not been taken and in the absence of registered deed of acquisition , the land acquisition proceeding is bad in law as it is in contravention to the provisions of Section 46 of the C.N.T. Act,which reads as follows:- [46. Restrictions on transfer of their right by Raiyat. - (1) No transfer by a Raiyat of his right in his holding or any portion thereof,- (a) by mortgagte or lease for any period expressed or implied which exceeds or might in any possible event exceed five years, or (b) by sale, gift or any other contract or agreement, shall be valid to any extent: Provided that a Raiyat may enter into a 'bhugut bundha' mortgage of his holding or any portion thereof for any period not exceeding seven years or if the mortgagee be a society registered or deemed to be registered under the 'Bihar and Orissa Co-operative Societies Act, 1935 (B&O Act VI of 1935) for any period not exceeding fifteen years:] Provided further that,- (a) an occupancy-Raiyat, who is [a member of the Scheduled Tribes] may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale, exchange, gift or will to [another person, who is a member of the Scheduled Tribes and], who is a resident within the local limits of the area of the police station within which the holding is situate; (b) an occupancy-Raiyat, who is a member of the [Scheduled 9 Castes or Backward Classes] may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale, exchange, gift, will or lease to another person, who is a member of the [Scheduled Castes or, as the case may be, Backward Classes] and who is a resident within the local limits of the district within which the holding is situate [* * *]; [(c) any occupancy-Raiyat may, transfer his right in his holding or any portion thereof to a society or bank registered or deemed to be registered under the 'Bihar and Orissa Cooperative Societies Act, 1935 (Bihar and Orissa Act VI of 1935), or to the State Bank of India or a bank specified in column 2 of the First Schedule to the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970) or to a company or a corporation owned by, or in which less than fifty-one per cent of the share capital is held by the State Government or the Central Government or partly by the State Government, and partly by the Central Government, and which has been set up with a view to provide agricultural credit to cultivators; and (d) any occupancy-Raiyat, who is not a member of the Scheduled Tribes, Scheduled Castes or Backward classes, may, transfer his right in his holding or any portion thereof by sale, exchange, gift, will, mortgage or otherwise to any other person.] (2) A transfer by a Raiyat of his right in his holding or any portion thereof under subsection (1) shall be binding on the landlords. (3) No transfer of contravention of sub-section (1), shall be registered or shall be in any way recognised as valid by any Court, whatever in exercise, of civil, criminal or revenue jurisdiction. [(3-A) Notwithstanding anything contained in any other law for the time being in force, the Deputy Commissioner shall be a necessary party in all suits of a civil nature relating to any holding or portion thereof in which one of the parties to the suits is a member of the Scheduled Tribes and the other party is not a member of the Scheduled Tribes.] (4) At any time within three years after the expiration of the period or which a Raiyat has under clause (a) of sub-section (1) transferred his right in his holding or any portion thereof, the Deputy Commissioner shall on the application of the Raiyat put the Raiyat into possession of such holding or portion in the prescribed manner. [(4-A) (a) The Deputy Commissioner may, of his own motion or on an application filed before him by an occupancy-Raiyat, who is a member of the Scheduled Tribes, for annulling the transfer on the ground that the transfer was made in contravention of clause (a) of the second proviso to sub-section (1), hold an inquiry in the prescribed manner to determine if the transfer has been made in contravention of clause (a) of the second proviso to sub-section (1): Provided that no such application be entertained by the Deputy Commissioner unless it is filed by the occupancy-tenant within a period of twelve years from the date of transfer of his holding or any portion thereof: Provided further that before passing any order under clause (b) or clause (c) of this subsection, the Deputy Commissioner shall give the parties concerned a reasonable opportunity to be heard in the matter. (b) If after holding the inquiry referred to in clause (a) of this sub- section, the Deputy Commissioner finds that there was no contravention of clause (a) of the second proviso to sub-section (1) in making such transfer, he shall reject the application and may award such costs to the transferee to be paid by the transferor as he may, in the circumstances of the case, deem fit. (c) If after holding the inquiry referred to in clause (a) of this sub- section, the Deputy Commissioner finds that such transfer was made in 10 contravention of clause (a) of the second proviso to sub-section (1), he shall annul the transfer and eject the transferee from such holding or portion thereof, as the case may be and put the transferor in possession thereof: Provided that if the transferee has constructed any building or structure, such holding or portion thereof, the Deputy Commissioner shall, if the transferor is not willing to pay the value of the same, order the transferee to remove the same within a period of six months from the date of the order, or within such extended time not exceeding two years from the date of the order as the Deputy Commissioner may allow failing which the Deputy Commissioner may get such building or structure removed: Provided further that where the Deputy Commissioner is satisfied that the transferee has constructed a substantial structure or building on such holding or portion thereof before the commencement of the Chota Nagpur Tenancy (Amendment) Act, 1969 (President's Act 4 of 1969) he may, notwithstanding any other provisions of this Act, validate such a transfer made in contravention of clause (a) of the second proviso to sub-section (1), if the transferee either makes available to the transferor an alternative holding or portion of a holding, as the case may be, of the equivalent value, in the vicinity or pays adequate compensation to be determined by the Deputy Commissioner for rehabilitation of the transferor. Explanation. - In this Section "substantial structure or building" means the structure or building of the value exceeding five thousand rupees on the date of holding inquiry, but it does not include such structure or building of any value the materials of which cannot be removed without incurring substantial depreciation in its value.] (5) Nothing in this Section shall affect the validity of any transfer (of otherwise invalid) of a Raiyats right in his holding or any portion thereof made bona fide before the first day of January 1908 in the Chota Nagpur Division except the district of 'Manbhum', or before the first day of Januaury 1909, in the district of 'Manbhum'. [(6) In this Section [and in Section 47],- (a) "Scheduled Casted" means such castes, races or tribes as are specified in Part II of the Scheduled to the Constitution (Scheduled Castes) Order, 1950; (b) "Scheduled Tribes" means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are specified in Part II of the Scheduled to the Constitution (Scheduled Tribes) Order, 1950; and (c) "Backward classed" means such classes of citizens as may be declared by the State Government, by notification in the Official Gazette, to be socially and educationally backward.] Learned counsel for the petitioners, Mr. Mahesh Tewari has placed reliance upon the notice, brought on record as Annexure-B/1 to the counter affidavit filed on behalf of respondent nos. 1 to 3, duly sworn by Vishal Kumar, son of Balram Thakur, the then Circle Officer, Dhanbad on 16.03.2012 showing that notice under Section 12(2) of Act I of 1894 was issued in Land Acquisition Case No. 20/1961-62 in the name of Kalawati Mandalani, Wife of Surajdeo Mandal and Navin Chandra Mandal, Son of Tannu Mandal with respect to Bhuda Milk Supply Yojna awarding compensation of Rs. 11

435.56. The notice was properly served and received by Surajdeo Mandal, husband of the original petitioner, Kalawati Devi on

05.07.1962. Learned counsel for the petitioners, Mr. Mahesh Tewari has also relied upon Special Notice issued under Clauses 3 and 4 of Section 9 of Land Acquisition Act in L.A. Case No. 110/1961-62 with respect to acquisition of 10 acres of land showing Plot No. 911, Area – 15 decimals, Plot No. 913, Area – 19 decimals i.e. Total Area – 34 decimals of Khata No. 1 of Village - Bhuda for Milk Supply Yojna in the name of Balram Rawani and Brinda Rawani, sons of Santu Rawani, Dularni Rawani, Radhi Rawani, Kusum Rawani, all daughters of Agnu Rawani and Meshri Rawani, daughter of Chunki Rawani, all by caste Rawani and the said notice has been served upon Gopal Rawani and Balram Rawani. Learned counsel for the petitioners, Mr. Mahesh Tewari has thus submitted that the State is not clear, whether 10 acres of land has been acquired through L.A. Case No. 110/1961-62 or L.A. Case No. 20/1961-62. Thus, learned counsel for the petitioners has submitted that entire acquired land, , the same ought to have been returned to the raiyats under Sections 36, 44A, & 48 of the Land Acquisition Act, 1894 which reads as follows:-

36. Power to enter and take possession, and compensation on restoration. – (1) On payment of such compensation, or on executing such agreement, or on making a reference under section 35, the Collector may enter upon and take possession of the land, and use or permit the use thereof in accordance with the terms of the said notice. (2) On the expiration of the term, the Collector shall make or tender to the persons interested compensation for the damage (if any) done to the land and not provided for by the agreement, and shall restore the land to the persons interested therein: Provided that, if the land has become permanently unfit to be used for the purpose for which it was used immediately before the commencement of such term, and if the persons interested shall so require, the[appropriate Government] shall proceed under this Act to acquire the land as if it was needed permanently for a public purpose or for a Company. 44-A. Restriction on transfer, etc. - No Company for which any land is acquired under this Part shall be entitled to transfer the said land or any part thereof by sale, mortgage, gift, lease or 12 otherwise except with the previous sanction of the appropriate Government. 48. Completion of acquisition not compulsory, but compensation to be awarded when not completed. - (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. (2) Whenever the Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings thereunder, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land. (3) The provisions of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this section. Learned counsel for the petitioners has submitted that atleast the respondents should be restrained to construct over the 6.0 decimals of the land of the petitioners, i.e. 1 decimal of Plot No. 911 and 5 decimals of Plot No. 913, which have never been acquired and if, State wants to acquire the same, compensation should be paid under Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. Learned counsel for the respondents / State, Mr. Sachin Kumar, AAG-II assisted by learned A.C. to AAG-II, Mr. Gaurav Raj has opposed the prayer and has submitted, that several counter- affidavits have been filed in this case clarifying the stand that 10 acres of land, in question has been acquired for Mudha Milk Supply Scheme. Learned counsel for the respondents / State, Mr. Sachin Kumar, AAG-II has further submitted, that admittedly 25 decimals of the land of original petitioner appertaining to Plot Nos.911 and 913 situated within Mouza-Bhuda, Thana No.48, Khata No.1 was acquired vide L. A. Case No.20/1961-62 for milk supply scheme. The aforesaid Plot No.911 comprises of 15 decimals and Plot No.913 comprises of 19 decimals, out of which, 11 decimals of Plot No.911 and 14 decimals of Plot No.913 was acquired vide notice, duly received by husband of the original writ petitioner, namely, Surajdeo Mandal on 05.07.1962. The remaining 4 decimals of Plot 13 No.911 and 5 decimals of Plot No.913 was acquired from Mushri Rawani @ Mushri Kahalin in the said L.A. Case No.20/1961-62 and thus, the entire land of 34 decimals comprising of Plot Nos.911 and 913 were acquired vide L.A. Case No.20/1961-62. Original petitioner has constructed two shops/rooms over the aforesaid plot No.911 and four shops have been constructed over the aforesaid acquired Plot No.913. Altogether 3½ decimals, out of the acquired 34 decimals of land has been encroached by the original petitioner. The 16 decimals of the acquired land has also been encroached by the Leprosy Centre. To buttress his argument, Mr. Sachin Kumar, learned AAG-II for the State has submitted, that plan showing land to be acquired for Milk Supply Scheme in Village- Bhuda, Thana No.48, Thana- Jharia, District- Dhanbad, measuring an area of 10 Acres approximately has been brought on record as Annexure-B to the counter-affidavit dated 16.03.2012. The aforesaid plot Nos. 911 and 913 along with other lands have been completely acquired as shown in the Map within red-lines. The notice issued in this regard has been brought on record as Annexure-B/1 to the counter-affidavit dated

16.03.2012, issued under Section 12(2) of the Land Acquisition Act,1894 in the name of Kalawati Mandalain, W/o Surajdeo Mandal and Navin Chandra Mandal, son of Tannu Mandal in L. A. Case No.20/1961-62, which was duly served upon husband of the original writ petitioner, Surajdeo Mandal on 05.07.1962 and in Land Acquisition Proceeding vide LA Case No.110 of 1961-62 with respect to 10 acres land for which notice has been issued under sub- section 3 and 4 of Section 9 of Act I of 1894 to Balram Rawani and Brinda Rawani, son of Late Santu Rawani, Dularni Rawani, Radhi Rawani, Kusum Rawani all daughters of Agnu Rawani and Meshri Rawani, daughter of Chunki Rawani showing Khata no.1, Plot no.911 Area 15 decimals as well as Khata no.1, Plot No.913, Area- 19 decimals i.e. Total Area- 34 decimals of Khata no.1 and the notice has been received by Gopal Rawani and Balram Rawani. 14 Original Petitioner- Kalawati Devi @ Mandalain objected to the said notice under Section 9 of the said Act, 1894 and claimed compensation in respect of land purchased by her. Finally award for a sum of Rs.435.56/- was prepared in favour of Kalawati Devi @ Mandalain and award for a sum of Rs.156.79/- was prepared in favour of Mushri Rawani @ Mushri Kahalin, as they were found to be rightful persons. Both the persons were asked to appear before the Land Acquisition Officer to receive the compensation amount. But both of them have failed to appear before the Land Acquisition Officer on the date fixed and the award amount was deposited in the Treasury. If, the dispute is with regard to extent of awarded amount not paid to the original petitioner with respect to her land, the original petitioner ought to have challenged the award with respect to her total 31 decimals of land, but since the Title Suit No.182 of 1962 was pending at the relevant time before the learned Munsif 1st , Dhanbad and thus the petitioners have never brought the judgment of Title Suit No.182 of 1962 on record. Learned counsel for the respondents / State, Mr. Sachin Kumar, AAG-II has fairly submitted, that doubt has cropped up in the mind of original petitioner only because Land Acquisition Officers having lack of proper knowledge gave two numbers in the Land Acquisition Proceeding i.e. Preliminary Case No.110/1961-62 and L.A. No.20/1961-62 and those have been used interchangeably in various letters and record of L.A. Case. But certainly the same would not cause prejudice to the case of original petitioner as original petitioner has received the compensation with regard to aforesaid 25 decimals of land to the tune of Rs.435.56/- and since the original petitioner has not appeared before the Land Acquisition Officer with relevant documents, total compensation amount for 9 decimals of land i.e. Rs.156.79/- has been deposited in the Treasury in accordance with law, out of which original petitioner is only claiming 6 decimals i.e. 1 decimal of plot no.911 and 5 decimals of Plot No.913. As such, the notice or declaration issued under Section 15 6 of Land Acquisition Act, 1894 with regard to establishment of Milk Supply Scheme at Dhanbad in the Village- Bhuda, Thana No.48 Thana - Jharia, District- Dhanbad is self-speaking, as the boundary of the acquired plots have been mentioned as:- North- by boundary line of Railway land and sub-plot nos.904(P) and 903(P), 900(P), 899 and 897 (P). South- by sub-plot nos.951(P), 947(P), 946(P), 943(P), 942(P), 945(P), 940(P) and 939. East- by sub-plot Nos.897(P), 900(P), 902(P), 901(P), 952(P) and 951(P). West- by sub-Plot Nos. 929, village road. Learned counsel for the respondents / State, Mr. Sachin Kumar, AAG-II has further submitted, that the Declaration under Section 6 of the Land Acquisition Act, 1894 was signed by Deputy Commissioner, Dhanbad on 30.01.1962. and the aforesaid land is falling within these boundaries, which can be verified from Annexure-B at Page 21 of the counter-affidavit dated 16.03.2012, sworn by Vishal Kumar, S/o Balram Thakur, the then Circle Officer, Dhanbad. Learned counsel for the respondents / State, Mr. Sachin Kumar, AAG-II has further submitted, that entire land falling within these boundaries i.e. North, South, East and West have already been acquired, as such, petitioners have no case that some portion of Plot No.911 and Plot No.913 have not been acquired under the Land Acquisition Proceeding for Milk Supply Scheme. Learned counsel for the respondents / State, Mr. Sachin Kumar, AAG-II has further submitted, that an application of Kalawati Devi @ Madalain W/o Surajdeo Mandal dated 07.03.1962, addressed to the Land Acquisition Officer, Dhanbad in Reference to L.A. Case No.110/1961-62 which shows that notice has been served to the original tenant of the land in question. It is true that original petitioner has purchased this land by registered deed in the year, 1959 and it ought to have been mentioned in the registered-II, but 16 after such a long time, the State is not in a position to clarify, whether such entry in Register-II was not made because of the laches on the part of the Circle Officer, Dhanbad or because of negligent attitude of original writ petitioner- Kalawati Devi @ Madalain or her husband Surajdeo Mandal, who never filed any application for mutation and thus, it is true that notice has been issued to the original tenant and not to the petitioner(s), who are the subsequent purchasers. But after filing such application by the original writ petitioner, Kalawati Devi @ Madalain W/o Surajdeo Mandal on 07.03.1962, the fact has been verified by the then Circle Office and it has categorically been mentioned that out of acquisition of 10 acres of land, 19 decimals of Plot no.913 and 15 decimals of Plot No. 911, total 34 decimals have been acquired under the land Acquisition Proceeding, as such, considering the validity and genuineness of the application, the writ petition is fit to be dismissed. Learned counsel for the respondents / State, Mr. Sachin Kumar, AAG-II has further submitted that the only question remains that, without having proper assistance provided by the original petitioner, the State is not in a position after a long time of 60 years to satisfy that why the amount of Rs.156.79/- has not been paid to the Meshri Rawani @ Mushri Kahalin, daughter of Chunki Rawani or the successor over the land, which is apparent from notice issued under sub-section 3 and 4 of Section 9 of Land Acquisition Act, 1894 in L.A. Case No. 110/1961-62, as Meshri Rawani @ Mushri Kahalin, daughter of Chunki Rawani were called by the State along with the Mukhiya, but since none of them has turned up, the money was deposited in the Treasury, which can be disbursed to the rightful claimant by the State on their application before the Land Acquisition Officer. Learned counsel for the respondents / State, Mr. Sachin Kumar, AAG-II has further submitted, that Title Suit No.182 of 1962 has strong bearing over the right and claim of the original petitioner, 17 which is apparent from the application filed by Surajdeo Mandal before the Land Acquisition Officer, Dhanbad for return of document filed in L.A. Case No.20/1961-62, which was allowed on

06.07.1962, the same has been brought on record as Annexure-H to the supplementary counter-affidavit dated 20.10.2021 sworn by Mr. Prashant Kumar, S/o Keshri Kumar, Secretary, Department of Drinking Water and Sanitation, Government of Jharkhand. The said application comprising list of document as one rent receipt, one registered deed in the name of Kalawati Devi @ Madalain W/o Surajdeo Mandal executed by Balram Rawai and Brinda Rawai, one copy of certified copy of order sheet in mutation case of C.O., Dhanbad and one copy of enquiry report of C.I., Dhanbad. Learned counsel for the respondents / State, Mr. Sachin Kumar, AAG-II has further submitted, that from perusal of Annexure-I to the supplementary counter-affidavit dated 20.10.2021, it appears that several persons have been given compensation vide Challan (FORM-E) dated 20.07.1962, as such, it is wrong and false to allege that compensation has not been paid to the rightful persons including the original petitioner. Learned counsel for the respondents / State, Mr. Sachin Kumar, AAG-II has further submitted, that in Land Acquisition Case No. 20 of 1961-62, Declaration No. 1038 dated 10.02.1962 was published with respect to 25 decimals of land i.e. 11 decimals in Plot No.911/2 and 14 decimals in Plot No.913/2 of Kalawati Devi @ Madalain W/o Surajdeo Mandal and Navin Chandra Mahto, S/o Tannu Mahto and the compensation was paid i.e. for land Rs.

378.75/- and for tree Rs. 56.81/- i.e. total Rs.435.56/-. The numbering of Plot nos. 911 and 913 as 911/2 and 913/2 also denotes that 911/1 was with respect to 4 decimals and 913/1 was with respect to 5 decimals. Both Plot nos.911 and 913 comprises of 34 decimals and as such, this document at least shows that entire plots have been acquired but because of the variation in the number of L.A. Case i.e. L.A. Case No.20 of 1961-62 or 110 of 1961-62, such disputes have 18 been cropped up in the mind of the original petitioner, but certainly original petitioner has never raised this issue in the year, 1960 rather, such issue has only been raised in the year, 2005,after the entire land acquisition proceeding has been finalized. Learned counsel for the respondents / State, Mr. Sachin Kumar, AAG-II has further submitted, that till date, petitioners have not brought the plaint of Title Suit No.182/1962 on record, as such, this Court may direct the petitioners to bring on record the certified copy of plaint and the decree passed in Title Suit No.182/1962, so as to ascertain that under what circumstances the compensation with regard to 9 decimals of land were deposited in the Treasury by the State, but in the notice issued under sub clause 3 and 4 of Section 9 of the Land Acquisition Act, 1894, in which claim of the original petitioner is not mentioned rather, name of Balram Rawani and Brinda Rawani, S/o Santu Rawani, Dularni Rawani, Radhi Rawani and Kusum Rawani, all daughters of Agnu Rawani and Meshri Rawani, Daughter of Chunki Rawani, all by caste Rawani of Village Bhuda has been mentioned and 10 acres of land has been acquired vide Declaration no.1038 dated 10.02.1962 published in the Bihar Gazette on 12.02.1962 and 15 decimals of Plot No. 911 and 19 decimals of Plot no.913, total 34 decimals have been acquired in the said Land Acquisition Proceeding. Learned counsel for the respondents / State, Mr. Sachin Kumar, AAG-II has further submitted that the final report i.e. FORM-21 of proceeding of L.A. Case No.20 of 1961-62, area 10 acres has been brought on record as Annexure-H to the supplementary counter- affidavit dated 17.01.2022 filed by Sandeep Singh, son of Vijay Pal Singh, Deputy Commissioner, Dhanbad.along with notification vide Declaration No.1038 dated 10.02.1962 notice under Section 9 of the said Act, 1894 which was issued on 07.03.1962 and the date fixed for enquiry under Section 11 was published on 13.03.1962 and declared on 28.06.1962 and date of reference under Section 18 was

28.07.1962, date on, and Section of the Act under which possession 19 of the land was taken and possession delivered was 04.04.1963. Learned counsel for the respondents / State, Mr. Sachin Kumar, AAG-II has thus submitted, that this acquisition is not the possession under Section 17 (4) of the emergency provision of said Act, 1894 as stated by the petitioners, rather this acquisition is under Part-II Section-4, Section-6, Section-9, Section-11 and Section-12 of the Act, 1894 and thus, counsel for the petitioners is not correct with respect to his submission regarding return of land under Sections 36, 48, 44A of the said Act, 1894, as those Sections deals with return of land which has been acquired for the Company and not for the State. So far Section 48 of the said Act, 1894 is concerned, the same is not applicable as the acquisition has already been completed, as such, in view of catena of judgment passed by the Apex Court, in no circumstances, such land can be returned, rather even the State is not utilizing those lands for the purpose of its acquisition, the State is free to use the land for other public purposes and the same will not be returned to the raiyats. Mr. Sachin Kumar, learned AAG-II for the State in support of his submission has placed reliance upon the judgment passed by the Apex Court in the case of Chandragauda Ramgonda Patil and Anr. vs. State of Maharashtra and Ors, reported in 1996 (6) SCC 405 , at relevant portion of Para-2, which may profitably be quoted hereunder:- “2...................... We are not concerned with the validity of the notification in either of the writ petitions. It is axiomatic that the land acquired for a public purpose would be utilized for any other public purpose, though use of it was intended for the original public purpose. It is not intended that any land which remained unutilized, should be restituted to the erstwhile owner to whom adequate compensation was paid according to the market value as on the date of the notification Under these circumstances, the High Court was well justified in refusing to grant relief in both the writ petitions.” Mr. Sachin Kumar, learned AAG-II for the State in support of his submission has further placed reliance upon the judgment passed by the Apex Court in the case of C. Padma and Ors. vs. Dy. Secretary to the Govt. of T. N. and Ors., reported in 1997 (2) SCC 20 627 at relevant part of para- 5, which may profitably be quoted hereunder:- “5................ In terms of the agreement at contemplated in Chapter VII of the Act, the Company had delivered possession subject to the terms and conditions thereunder. It is seen that one of the conditions was that on cessation of the public purpose, the lands acquired would be surrendered to the Government. In furtherance thereof, the lands came to be surrendered to the Government for resumption. The lands then were allotted to SRVS Ltd., 5th respondent which is also a subsidiary amalgamated company of the original company. Therefore, the public purpose for which acquisition was made was substituted for another public purpose. Moreover, the question stood finally settled 32 years ago and hence the writ petition cannot be entertained after three decades on the ground that either original purpose was not public purpose or the land cannot be used for any other purpose.” Learned counsel for the respondents / State, Mr. Sachin Kumar, AAG-II in support of his submission has further placed reliance upon the judgment passed by the Apex Court in the case of Assam Industrial Development Corporation Limited vs. Gillapukri Tea Company Limited and Ors., reported in 2021 (3) SCC 388 at paras- 13, 19 and 21 which may profitably be quoted hereunder:-

13. We have carefully considered the submissions of the learned counsel made at the Bar and perused the materials placed on record. Having regard to the contentions urged, the crucial question for consideration is whether an award in respect of the first respondent’s land was approved by the State Government on 05.03.2010. Needless to say, if the award was not approved on 05.03.2010, but rather on 06.01.2014 as contended by the first respondent, then the 2013 Act will be applicable and the first respondent will be eligible to receive compensation in accordance therewith. 19.In the above scenario, the arguments of the first respondent are untenable. Once the award has been approved, compensation has been paid thereunder and possession of the land has been handed over to the Government, acquisition proceedings could not have been reopened, including by way of re-notification of the already acquired land under Section 4 of the L.A. Act by the Government. Contrary to the first respondent’s contention, the question of lapsing under Section 24 of the L.A. Act could not have arisen in this case once the award was approved on 05.03.2010. 21.The recent decision of the Constitution Bench of this Court in Indore Development Authority v. Manoharlal and Ors.5 has also affirmed that once possession is taken by the State, the land vests absolutely with the State and the title of the landowner ceases. We find no reason to deviate from this settled position of law and thus are unable to agree with the High Court’s reliance on the letters dated 21.07.2012 and 06.01.2014 to nullify the 21 original award and allow fresh acquisition proceedings in respect of the first respondent’s land which had already been acquired and has been under the possession of the appellant since 11.06.2010.” Learned counsel for the respondents / State, Mr. Sachin Kumar, AAG-II in support of his submission has further placed reliance upon the judgment passed by the Apex Court in the case of Agra Development Authority, Agra vs. Anek Singh and Ors., reported in 2022 SCC OnLine SC 671 at Para-5, which may profitably be quoted hereunder:- “5. However, the decision of this Court in the case of Pune Municipal Corporation (supra) has been subsequently over ruled by the Constitution Bench of this Court in the case of Indore Development Authority versus Manoharlal and others, (2020) 8 SCC 129. In paragraph 366 it is observed and held as under: “366. In view of the aforesaid discussion, we answer the questions as under: 366.1. Under the provisions of Section 24(1)(a) in case the award is not made as on 1-1-2014, the date of commencement of the 2013 Act, there is no lapse of proceedings. Compensation has to be determined under the provisions of the 2013 Act. 366.2. In case the award has been passed within the window period of five years excluding the period covered by an interim order of the court, then proceedings shall continue as provided under Section 24(1)(b) of the 2013 Act under the 1894 Act as if it has not been repealed. 366.3. The word “or” used in Section 24(2) between possession and compensation has to be read as “nor” or as “and”. The deemed lapse of land acquisition proceedings under Section 24(2) of the 2013 Act takes place where due to inaction of authorities for five years or more prior to commencement of the said Act, the possession of land has not been taken nor compensation has been paid. In other words, in case possession has been taken, compensation has not been paid then there is no lapse. Similarly, if compensation has been paid, possession has not been taken then there is no lapse. 366.4. The expression “paid” in the main part of Section 24(2) of the 2013 Act does not include a deposit of compensation in court. The consequence of non deposit is provided in the proviso to Section 24(2) in case it has not been deposited with respect to majority of landholdings then all beneficiaries (landowners) as on the date of notification for land acquisition under Section 4 of the 1894 Act shall be entitled to compensation in accordance with the provisions of the 2013 Act. In case the obligation under Section 31 of the Land Acquisition Act, 1894 has not been fulfilled, interest under Section 34 of the said Act can be granted. Non deposit of compensation (in court) does not result in the lapse of land acquisition proceedings. In case of non deposit with respect to the majority of holdings for five years or more, compensation under the 2013 Act has to be paid to the 22 “landowners” as on the date of notification for land acquisition under Section 4 of the 1894 Act. 366.5. In case a person has been tendered the compensation as provided under Section 31(1) of the 1894 Act, it is not open to him to claim that acquisition has lapsed under Section 24(2) due to nonpayment or nondeposit of compensation in court. The obligation to pay is complete by tendering the amount under Section 31(1). The landowners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the 2013 Act. 366.6. The proviso to Section 24(2) of the 2013 Act is to be treated as part of Section 24(2), not part of Section 24(1)(b). 366.7. The mode of taking possession under the 1894 Act and as contemplated under Section 24(2) is by drawing of inquest report/memorandum. Once award has been passed on taking possession under Section 16 of the 1894 Act, the land vests in State there is no divesting provided under Section 24(2) of the 2013 Act, as once possession has been taken there is no lapse under Section 24(2). 366.9. Section 24(2) of the 2013 Act does not give rise to new cause of action to question the legality of concluded proceedings of land acquisition. Section 24 applies to a proceeding pending on the date of enforcement of the 2013 Act i.e. 112014. It does not revive stale and timebarred claims and does not reopen concluded proceedings nor allow landowners to question the legality of mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to invalidate acquisition. 366.8. The provisions of Section 24(2) providing for a deemed lapse of proceedings are applicable in case authorities have failed due to their inaction to take possession and pay compensation for five years or more before the 2013 Act came into force, in a proceeding for land acquisition pending with the authority concerned as on 112014. The period of subsistence of interim orders passed by court has to be excluded in the computation of five years.” Mr. Sachin Kumar, learned AAG-II for the State in support of his submission has further placed reliance upon the judgment passed by the Apex Court in the case of Sulochana Chandrakant Galande vs. Pune Municipal Transport and ors reported in (2010) 8 SCC 467, wherein case of Bangalore Development Authority vs. R. Hanumaiah, reported in (2005) 12 SCC 508 has been reiterated. Paras-10 to 22 of Sulochana Chandrakant Galande (supra) which may profitably be quoted hereunder:-

10. The Scheme of the Act, 1976 provides that the prescribed authority shall make an order declaring the surplus land. The land would be acquired by the State and tenure holder is entitled to have an amount of compensation. Section 10(3) of the Act, 23 1976, provides that after acquisition and publication of the Notification under Section 10(1) of the Act, 1976 "the land shall be deemed to have vested absolutely in the State Government free from all encumbrances with effect from the date so specified". 11. Section 11 of the Act, 1976, provides for the Mode of Payment of the amount for vacant land acquired. Any person aggrieved, has a right to file an appeal before the Land Tribunal and a second appeal before the High Court. 12. The provisions of Section 10(3) of the Act, 1976 are analogous to Section 16 of the Land Acquisition Act, 1894 (hereinafter called the `Act 1894'). Acquisition proceedings cannot be withdrawn/abandoned in exercise of the powers under Section 48 of the Act 1894 or Section 21 of the General Clauses Act, 1897 once the possession of the land has been taken. (Vide The State of Madhya Pradesh & Ors. Vs. Vishnu Prasad Sharma & Ors., AIR 1966 SC 1593; LT. Governor of Himachal Pradesh & Anr. Vs. Sri Avinash Sharma, AIR 1970 SC 1576; Pratap & Anr. Vs. State of Rajasthan & Ors., AIR 1996 SC 1296; Mandir Shree Sita Ramji alias Shree Sitaram Bhandar Vs. Land Acquisition Collector & Ors., AIR 2005 SC 3581; Bangalore Development Authority & Ors. Vs. R. Hanumaiah & Ors., (2005) 12 SCC 508; and Hari Ram & Anr. Vs. State of Haryana & Ors., (2010) 3 SCC 621). 13. The meaning of the word `vesting' has been considered by this Court time and again. In The Fruit & Vegetable Merchants Union Vs. The Delhi Improvement Trust, AIR 1957 SC 344, this Court held that the meaning of word `vesting' varies as per the context of the Statute in which the property vests. While considering the case under Sections 16 and 17 of the Act 1894, the Court held as under:- “19...the property acquired becomes the property of Government without any condition or limitations either as to title or possession. The legislature has made it clear that vesting of the property is not for any limited purpose or limited duration." (Emphasis added). "Encumbrance" actually means the burden caused by an 14. act or omission of man and not that created by nature. It means a burden or charge upon property or a claim or lien on the land. It means a legal liability on property. Thus, it constitutes a burden on the title which diminishes the value of the land. It may be a mortgage or a deed of trust or a lien of an easement. An encumbrance, thus, must be a charge on the property. It must run with the property. (Vide Collector of Bombay Vs. Nusserwanji Rattanji Mistri & Ors., AIR 1955 SC 298; H.P. State Electricity Board & Ors. Vs. Shiv K. Sharma & Ors., AIR 2005 SC 954; and AI Champdany Industries Ltd. Vs. Official Liquidator & Anr., (2009) 4 SCC 486).\ 15. In State of Himachal Pradesh Vs. Tarsem Singh & Ors., AIR 2001 SC 3431, this Court held that the terminology `free from all encumbrances' used in Section 16 of the Act 1894, is wholly unqualified and would en-compass the extinguishing of "all rights, title and interests including easementary rights" when the title vests in the State. Thus, "free from encumbrances" means vesting of land in 16. the State without any charge or burden in it. Thus, State has absolute title/ownership over it. 24 In Satendra Prasad Jain & Ors. Vs. State of U.P. & Ors., 17. AIR 1993 SC 2517, this Court held that once land vests in the State free from all encumbrances, it cannot be divested. The same view has been reiterated in Awadh Bihari Yadav & Ors. Vs. State of Bihar & Ors., (1995) 6 SCC 31; U.P. Jal Nigam, Lucknow Vs. M/s. Kalra Properties (P) Ltd., Lucknow & Ors., AIR 1996 SC 1170; Pratap & Anr. (Supra); Chandragauda Ramgonda Patil & Anr. Vs. State of Maharashtra & Ors., (1996) 6 SCC 405; Allahabad Development Authority Vs. Nasiruzzaman & Ors., (1996) 6 SCC 424; State of Kerala & Ors. Vs. M. Bhaskaran Pillai & Anr., AIR 1997 SC 2703; M. Ramalinga Thevar Vs. State of Tamil Nadu & Ors., (2000) 4 SCC 322; Printers (Mysore) Ltd. Vs. M.A. Rasheed & Ors., (2004) 4 SCC 460; Bangalore Development Authority & Ors. Vs. R. Hanumaiah & Ors., (2005) 12 SCC 508; and Government of Andhra Pradesh & Anr. Vs. Syed Akbar, AIR 2005 SC 492. 18. So far as the change of user is concerned, it is a settled legal proposition that once land vests in the State free from all encumbrances, there cannot be any rider on the power of the State Government to change user of the land in the manner it chooses. 19. State of Maharashtra & Ors., (SCC p. 802 para 5) In a similar situation, in Gulam Mustafa & Ors. Vs. The "5.....Once the original acquisition is valid and title has vested in the Municipality, how it uses the excess land is no concern of the original owner and cannot be the basis for invalidating the acquisition. There is no principle of law by which a valid compulsory acquisition stands voided because long later the requiring Authority diverts it to a public purpose other than the one stated in the.......declaration." 20. Re-iterating a similar view in C. Padma & Ors. Vs. Deputy Secretary to the Government of Tamil Nadu & Ors., (1997) 2 SCC 627, this Court held that if by virtue of a valid acquisition of land, land stands vested in the State, thereafter, claimants are not entitled to restoration of possession on the grounds that either the original public purpose is ceased to be in operation or the land could not be used for any other purposes. 21. In Bhagat Singh etc. Vs. State of U.P. & Ors., AIR 1999 SC 436; Niladri Narayan Chandradhurja Vs. State of West Bengal, AIR 2002 SC 2532; and Northern Indian Glass Industries Vs. Jaswant Singh & Ors., (2003) 1 SCC 335, this Court held that, the land user can be changed by the Statutory Authority after the land vests in the State free from all encumbrances. 22. In view of the above, the law can be summarised that once the land is acquired, it vests in the State free from all encumbrances. It is not the concern of the land owner how his land is used and whether the land is being used for the purpose for which it was acquired or for any other purpose. He becomes persona non grata once the land vests in the State. He has a right to get compensation only for the same. The person interested cannot claim the right of restoration of land on any ground, whatsoever.” Learned counsel for the respondents / State, Mr. Sachin 25 Kumar, AAG-II in support of his submission has further placed reliance upon the judgment passed by the Apex Court in the case of U. P. Avas Evam Vikas Parishad through Housing Commissioner and Anr. vs. Noor Mohammad and Ors., reported in 2021 SCC OnLine SC 1266 at paras- 20, 21 and 23 which may profitably be quoted hereunder:- But a proceeding under section 48(1) of the Land 20. Acquisition Act is 2 (1991) 4 SCC 485 administrative in nature as can be seen from the language employed. Section 48 of the Act reads as follows: 48. Completion of acquisition not compulsory, but compensation to be awarded when not completed. – (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. (2) Whenever the Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings there under, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land. (3) The provision of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this section.” 21. What is provided in Section 48(1) is the power/liberty to withdraw from acquisition. It is an administrative act. Therefore, the reliance on the decision in Industrial Infrastructure Development Corporation (supra) is misplaced. 23. While a Notification for acquisition issued under Section 4(1) of the Land Acquisition Act seeks to take away an individual’s right to property, a Notification under Section 48(1) is actually the reverse or opposite. It confers benefit upon an individual and hence it is not supposed to be preceded by any enquiry. The essence of an order which is quasijudicial in nature is that it is preceded by an opportunity of hearing to the party affected thereby. A notification under Section 48(1) does not warrant any notice or opportunity of hearing, to the original land owners. If at all any person will be aggrieved by the Notification under Section 48(1), it will be the beneficiary of the acquisition, which in this case is the Parishad, and not the land owners. Therefore, we can understand if the Parishad makes out a grievance that their rights were taken away by the notification under Section 48(1) especially after the land vested in them.” Learned counsel for the respondents / State, Mr. Sachin Kumar, AAG-II in support of his submission has further placed reliance upon the judgment passed by the Apex Court in the case of Indore Development Authority vs. Manoharlal and Ors., reported in 2020 (8) SCC 109 at Para-360, where the Apex Court has 26 considered and the same has also been taken note of by this Court with regard to return of unutilized land under Section 101 of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. Paras 361, 362 and 363 of the aforesaid judgment may profitably be quoted hereunder:- “360. It was submitted that Section 101 provides for return of unutilized land under the Act of 2013. Section 101 provides that in case land is not utilized for five years from the date of taking over the possession, the same shall be returned to the original owner or owners or their legal heirs, as the case may be, or to the Land Bank of the appropriate Government by reversion in the manner as may be prescribed by the appropriate Government. Section 101 reads as under :- “101. Return of untuilised land- When any land, acquired under this Act remains unutilized for a period of five years from the date of taking over the possession, the same shall be returned to the original owner or owners or their legal heirs, as the case maybe, or to the Land Bank of the appropriate Government by reversion in the manner as may be prescribed by the appropriate Government.” “361. Section 24 deals with lapse of acquisition. Section 101 deals with the return of unutilized land. Section 101 cannot be said to be applicable to an acquisition made under the Act of 1894. The provision of lapse has to be considered on its own strength and not by virtue of Section 101 though the spirit is to give back the land to the original owner or owners or the legal heirs or to the Land Bank. Return of lands is with respect to all lands acquired under the Act of 2013 as the expression used in the opening part is "When any land, acquired under this Act remains unutilized". Lapse, on the other hand, occurs when the State does not take steps in terms of Section 24(2). The provisions of Section 101 cannot be applied to the acquisitions made under the Act of 1894. Thus, no such sustenance can be drawn from the provisions contained in Section 101 of the Act of 2013. Five years' logic has been carried into effect for the purpose of lapse and not for the purpose of returning the land remaining unutilized under Section 24(2). 362. Resultantly, the decision rendered in Pune Municipal Corporation & Anr. (supra) is hereby overruled and all other decisions in which Pune Municipal Corporation (supra) has been followed, are also overruled. The decision in Shree Balaji Nagar Residential Association (supra) cannot be said to be laying down good law, is overruled and other decisions following the same are also overruled. In Indore Development Authority v. Shailendra (Dead) through L.Rs. and Ors., (supra), the aspect with respect to the proviso to Section 24(2) and whether ‘or’ has to be read as ‘nor’ or as ‘and’ was not placed for consideration. Therefore, that decision too cannot prevail, in the light of the discussion in the present judgment. 363. In view of the aforesaid discussion, we answer the questions as under:

1. Under the provisions of Section 24(1)(a) in case the 27 award is not made as on 1.1.2014 the date of commencement of Act of 2013, there is no lapse of proceedings. Compensation has to be determined under the provisions of Act of 2013.

2. In case the award has been passed within the window period of five years excluding the period covered by an interim order of the court, then proceedings shall continue as provided under Section 24(1)(b) of the Act of 2013 under the Act of 1894 as if it has not been repealed.

3. The word ‘or’ used in Section 24(2) between possession and compensation has to be read as ‘nor’ or as ‘and’. The deemed lapse of land acquisition proceedings under Section 24(2) of the Act of 2013 takes place where due to inaction of authorities for five years or more prior to commencement of the said Act, the possession of land has not been taken nor compensation has been paid. In other words, in case possession has been taken, compensation has not been paid then there is no lapse. Similarly, if compensation has been paid, possession has not been taken then there is no lapse.

4. The expression 'paid' in the main part of Section 24(2) of the Act of 2013 does not include a deposit of compensation in court. The consequence of non-deposit is provided in proviso to Section 24(2) in case it has not been deposited with respect to majority of land holdings then all beneficiaries (landowners) as on the date of notification for land acquisition under Section 4 of the Act of 1894 shall be entitled to compensation in accordance with the provisions of the Act of 2013. In case the obligation under Section 31 of the Land Acquisition Act of 1894 has not been fulfilled, interest under Section 34 of the said Act can be granted. Non-deposit of compensation (in court) does not result in the lapse of land acquisition proceedings. In case of non-deposit with respect to the majority of holdings for five years or more, compensation under the Act of 2013 has to be paid to the "landowners" as on the date of notification for land acquisition under Section 4 of the Act of 1894.

5. In case a person has been tendered the compensation as provided under Section 31(1) of the Act of 1894, it is not open to him to claim that acquisition has lapsed under Section 24(2) due to non-payment or non-deposit of compensation in court. The obligation to pay is complete by tendering the amount under Section 31(1). Land owners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the Act of 2013.

6. The proviso to Section 24(2) of the Act of 2013 is to be treated as part of Section 24(2) not part of Section 24(1)(b).

7. The mode of taking possession under the Act of 1894 and as contemplated under Section 24(2) is by drawing of inquest report/ memorandum. Once award has been passed on taking possession under Section 16 of the Act of 1894, the land vests in State there is no divesting provided under Section 24(2) of the Act of 2013, as once possession has been taken there is no lapse under Section 24(2).

8. The provisions of Section 24(2) providing for a deemed lapse of proceedings are applicable in case authorities have failed due to their inaction to take possession and pay compensation for five years or more before the Act of 2013 came 28 into force, in a proceeding for land acquisition pending with concerned authority as on 1.1.2014. The period of subsistence of interim orders passed by court has to be excluded in the computation of five years.

9. Section 24(2) of the Act of 2013 does not give rise to new cause of action to question the legality of concluded proceedings of land acquisition. Section 24 applies to a proceeding pending on the date of enforcement of the Act of 2013, i.e., 1.1.2014. It does not revive stale and time-barred claims and does not reopen concluded proceedings nor allow landowners to question the legality of mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to invalidate acquisition. Let the matters be placed before appropriate Bench for consideration on merits.” Learned counsel for the respondents / State, Mr. Sachin Kumar has thus submitted that the Apex Court in the case of U. P. Avas Evam Vikas Parishad (supra) at Paras, 20, 21 and 23, as referred above has distinguished the acquisition made under Land Acquisition Act, 1894 and the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. Learned counsel for the respondents / State, Mr. Sachin Kumar has submitted, that two arguments, which are advanced by the petitioners in this Writ Petition with regard to non-acquisition of part of the land of Plot No.911, area - 4 decimals and part of Plot No.913, area- 5 decimals, out of which, the petitioners have claimed 1 decimal of land of Plot No.911 and 5 decimal of land of plot No.913, those lands have already been acquired in L.A. Case No.20 of 1961-62 for which final publication has already been brought on record, as such, the petitioners have no case to agitate the issue after about four and half decades. Learned counsel for the respondents / State, Mr. Sachin Kumar has submitted that the compensation with regard to the aforesaid part of the land is concerned, in view of non-supply of the papers, particularly, the plaint of Title Suit No.182 of 1962 and its decree by the petitioners, the State has rightly deposited the compensation amount in the Treasury with respect to 9 decimals of land to the tune of Rs.156.79/- @ Rs.17.42 per decimals and it can 29 also be verified by multiplying the same with admitted compensation paid to the original petitioner with respect to 25 decimals of land and since the original petitioner has already been paid Rs.435.56/-, as such, the petitioners can seek remedy before the Treasury through the competent officer for payment of compensation of 6 decimals of land, which the original petitioner was claiming. If the petitioners have perfect title, the same shall be paid to the petitioners along with interest as per prevalent rate of interest of Nationalized Bank. So far the return of the land because of non-utilization for the purpose it was acquired under Section 48 of the Land Acquisition Act, 1894 or Section 101 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 is concerned, it is apparent that the said Act of 2013 is not applicable in such cases where the land acquisition Proceeding under the said Act, 1894 has already been concluded as held by the Apex Court in the case of Indore Development Authority (supra) and followed by U. P. Avas Evam and Vikas Parishad (supra) and thus, even if the land has not been utilized for the purpose of its acquisition, the same can be utilized for any other public purposes in view of the judgment passed by the Apex Court in the case of Assam Industrial Development Corporation Limited (supra), as such, the instant Writ Petition is fit to be dismissed by this Hon'ble Court. Having heard the learned counsels for the parties and perused the materials brought on record. The petitioners have produced the copy of decree passed in Title Suit No. 182/1962 between Kalawati Devi @ Mandalain – Plaintiff and Balram Rawani & Others – Defendants and the copy of the same has also been handed-over to the learned counsel for the State. From perusal of the said decree, it appears that the suit was filed for rectification of the Sale-Deed No.15248 dated 09.10.1958 executed by defendant no.1 in favour of the plaintiff with regard to Plot No.1136, 1138, 1177, 1133, 1093, 1094, 1140 and this suit has 30 nothing to do with the subject matter of the present Writ Petition i.e. Plot Nos. 911 and 913. From perusal of the several counter-affidavits filed on behalf of the State and its reply filed on behalf of the original petitioner / petitioners, the following questions have emerged before this Court for its adjudication :- (i) Whether the land of 10 acres has been acquired under Land Acquisition Proceeding vide L.A. Case No.20 of 1961-62 or L. A. Case No.110 of 1961-62? (ii) Whether 15 decimals of land of Plot No.911 and 19 decimals of Plot No.913, total 34 decimals have been acquired or only 25 decimals have been acquired? (iii) Whether the original petitioner, Kalawati Devi @ Mandalain is entitled for share of her compensation as she has claimed to have purchased 31 decimals of land i.e. 12 decimals of Plot No.911 and 19 decimals of Plot No.913 from the rightful owner of the land? (iv) Whether the land which has been acquired by the LA proceeding can be returned to the petitioner(s) or to the several raiyats, if the purpose of land acquisition has not been achieved by the respondent-authorities? It appears from the records that a Land Acquisition Proceeding was initiated for milk supply scheme, therefore, 10 acres of land has been acquired in Village- Budha, P.S. Jharia, District- Dhanbad. From perusal of the Declaration under Section 6 of the Act, 1894, brought on record as Annexure-C/3 to the Supplementary Counter Affidavit dated 20.10.2021, it appears that outer boundary of the acquired area has been mentioned as :- North- by boundary line of Railway land and sub-plot nos.904(P) and 903(P), 900(P), 899 and 897 (P). South- by sub-plot nos.951(P), 947(P), 946(P), 943(P), 942(P), 945(P), 940(P) and 939. 31 East- by sub-plot Nos.897(P), 900(P), 902(P), 901(P), 952(P) and 951(P). West- by sub-Plot Nos. 929, village road. The Declaration was signed on 30th January, 1962 by the then Deputy Commissioner, Dhanbad and the then Land Acquisition Officer(s) as well as by the other officers and Map of plan showing land to be acquired for Milk Supply Scheme in Village – Bhuda, Thana No. 48 has been brought on record as Annexure-B to the counter-affidavit dated 16.03.2012, where the outer boundary has been shown by red line and from perusal of the map, which is at internal Page no. 21 of the counter-affidavit, it appears that Plot No.911 and Plot No.913 are within the four corners, as mentioned above. This Court is crystal clear with regard to acquisition of 34 decimals of land for the said purpose, which is fortified by Annexure-B/2 at Page no.25 of the said counter-affidavit dated

16.03.2012, where 15 decimals of land of Plot No.911 and 19 decimals of land of Plot No.913 i.e. total 34 decimals have been acquired under the Land Acquisition Proceeding vide L. A. Case No.110/1961-62. This Court is also of the view that the respondent-authorities have committed error while recording the L.A. Case No.20 of 1961- 62 and L.A. Case No.110 of 1961-62, which has also been admitted by the State in various counter-affidavits and pointed out by this Court that it is apparent error which has been committed, but such error has not prejudiced the right of the original petitioner because at least the notice issued under Section 12(2) of the Land Acquisition Act, 1894, which has been brought on record as Annexure-B/1 at Page No.23 of the counter-affidavit dated 16.03.2012, shows that Kalawati Devi @ Mandalain, W/o Surajdeo Mandal and Navin Chandra Mandal, S/o Tannu Mandal have been asked to appear for compensation with regard to a sum of Rs.435.56/- vide L.A. Case No.20 of 1961-62, whereas the other documents, special notice 32 issued under Clauses 3 and 4 of Section 9 of the Land Acquisition Act, 1894, issued to Balram Rawani and Brinda Rawani, son of Santu Rawani, Dularni Rawani, Radhi Rawani, and Kusum Rawani, all daughters of Agnu Rawani and Meshri Rawani, daughter of Chunki Rawani, were issued with respect to 15 decimals of land of Plot No.911 and 19 decimals of land of Plot No.913, total 34 decimals of Khata No.1 for payment of compensation asking the parties to appear on 09.03.1962 before the Land Acquisition Officer, Dhanbad at 10.30 A.M., and the notice was also served upon Gopal Rawani and Balram Rawani. Thus, this Court has no confusion in holding that entire 34 decimals of Plot No.911 and Plot No.913 had been acquired by the land acquisition proceeding in the year 1961-62. So far, second question is concerned that,why the State has only paid compensation to Kalawati Devi @ Mandalain only with respect to 25 decimals of land to the tune of Rs.435.56/-? From perusal of the documents, it appears that in the records of right, the name of Kalawati Devi @ Mandalain has never been entered and this Court cannot examine such documents after approximately 63 years that why the name has not been entered? The State has no policy that once a document is registered by a single window system, the entry in Register- II can be made by the concerned Circle Officer. Thus, it was upon the original petitioner as per the prevalent system existing in the State of Bihar to have applied before the Circle Officer for mutating her name in the Records of Right. But no document has been brought on record to that effect, as such, it is not clear as to why, the name has not been recorded, but certainly after filing of the objection by Kalawati Devi @ Madalain on 07.03.1962, which has been brought on record as Annexure-D to Supplementary Counter Affidavit dated 20.10.2021. The State authority should have verified about the acquisition of land and recorded in the said letter, which was written by Kalawati Devi @ Madalain that 34 decimals of Plot Nos. 911 and 913 and 13 33 decimals of Plot No.925 have been acquired. Subsequently, Kalawati Devi @ Madalain has been paid compensation with respect to 25 decimals of land i.e. Rs. 435.56/-, but amount for 9 decimals could not be paid because of no document has been found by the State. It appears that Kalawati Devi @ Madalain has never filed any application before the authority concerned for apportionment of the share. Thus, having no other alternative for the State, the State has rightly deposited Rs. 156.79/- @ Rs. 17.42 per decimals before the Treasury for 9 decimals of land, out of which 6 decimals have been claimed by the original petitioner, Kalawati Devi @ Mandalian. This Court grants permission to the petitioners to file such application before the Land Acquisition Officer, Dhanbad under Section 30 of the Land Acquisition Act, 1894 with regard to apportionment for their share. This Court also directs the District Land Acquisition Officer, Dhanbad to look into such matter and adjudicate the same so as to grant compensation of 6 decimals of land be paid to the concerned rightful owner alongwith 3 decimals to the concerned rightful owner along with interest within 30 days from the date of filing of such application before the District Land Acquisition Officer, Dhanbad. So far the return of land is concerned, even though the land has not been utilized for the purpose, it has been acquired as final report of proceeding has been signed on 04.04.1963, the land cannot be returned to the raiyats even the purpose has not been fulfilled, in view of the judgment passed by the Apex Court in the case of Chandragauda Ramgonda Patil (supra), C. Padma (supra), Sulochana Chandrakant Galande (supra), Indore Development Authority (supra), Assam Industrial Development Corp. Ltd. (supra), U.P Awas Evam Vikas Parishad (supra), Agra Development Authority (supra). As such, once the land has been vested in the State, final publication has been done, the land cannot be returned to the raiyats 34 as because from the date of vesting, it is the property of the State and State is free to utilize that land for any other purpose, even though the same has not been utilized for the purpose it has been acquired. So far the encroachment made over the land is concerned, since the land has already been acquired, any possession over the land by the petitioners is illegal possession under the law. Even if, the encroachment has been made by the petitioners or by any person as claimed by the petitioners, this Court is directing the Deputy Commissioner, Dhanbad to remove all the encroachment from the land and ensure that not a single piece of acquired land is encroached upon by any person. The Circle Officer of the circle as well as Officer-in-Charge of the area should be held responsible, if any government land is encroached by any person and the Deputy Commissioner is duty bound to recommend for initiation of proceeding before competent authority against the Circle Officer and Officer-in-Charge, if any Government land is encroached by any person. So far Land Acquisition Act, 1894 is concerned, the legislature at that time has not visualized that in the year 1908 another separate legislation of Chotanagpur Tenancy Act will come and thus, the legislature has not incorporated the said provisions in Land Acquisition Act, 1894 as both are harmonious, as such no prejudice has been caused to the petitioners. The Chotanagpur Tenancy Act Act, 1908 is only for the protection of rights of the people of Chotanagpur and thus, the Deputy Commissioner under Section 46 of the Chotanagpur Tenancy Act is held responsible for any such transaction, so that he can protect the right of the citizen of the Chotanagpur area. Once land is acquired by the State, which is welfare State, this Clause is not applicable with regard to the Land Acquisition Act, 1894 as both are harmonious and there is no chance of any exploitation of the citizen by the State itself. 35 Accordingly, the objection, which has been raised by Mr. Mahesh Tewari, learned counsel for the petitioners with regard to Section 46 of the Chotanagpur Tenancy Act is hereby rejected. Accordingly, the writ petition is dismissed with liberty to the petitioners, that they may file an application under Section 30 of the Land Acquisition Act for apportionment of their share and State shall decide the same within a period of 30 days from the date of filing of the same in accordance with law. I.A. No. 4509/2022 stands closed. Sandeep-Sunil/- (Kailash Prasad Deo, J.)