Uma Devi Agarwalla & Ors. v. The State of Jharkhand & Ors.

To buttress his argument, learned counsel for the petitioners has relied upon Letter dated 23.12.1987 (Annexure-1) issued by Administrative Officer, Lodhna Area to the Shri Shiw Pd. Agrawalla stating therein, that we propose to acquire the Land, which we presume is belonging to you, as such, relevant documents in support of your right of title with regard to the said plot be furnished. Thereafter, a meeting was convened on 15.01.1988 at 2:00 P.M. In the meeting, it was decided that the land which is being acquired, the compensation shall be paid and if the matter is pending before court, no compensation shall be paid. Learned counsel for the petitioners has further submitted that the Circle Officer, Baliapur has issued notice to 16 Anna Raiyats, but objection has not been raised by any of the Raiyats, as such, documents with regard to sale in favour of the original writ petitioner have been brought on record by way of affidavit filed by Manish Agarwalla on 27.10.2021 and pursuant thereto, the correction slip dated 28.06.2009 has been issued and rent receipt issued with regard to Khata No. 67, Plot Nos. 84, 85, 87 & 87, Area - 1.29 acres stands in the name of Shiv Prakash Agarwalla, as such, the title of the petitioners is undisputed. Learned counsel for the petitioners has further submitted that the judgment passed by the Apex Court in the case of Smt. Gunwant Kaur and Others Vs. Municipal Committee, Bhatinda and Others reported in 1969 (3) SCC 769 has been considered by Apex Court in the case of ABL International Ltd. and Another Vs. Export Credit Guarantee Corporation of India Ltd. and others reported in (2004) 3 SCC 553 may be taken note of. Para-16 to 19 of the ABL International Ltd. may profitably quoted hereunder:-

16. A perusal of this judgment though shows that a writ petition involving serious disputed questions of facts which requires consideration of evidence which is not on record, will not normally be entertained by a court in the exercise of its jurisdiction under Article 226 of the Constitution of India. This decision again, in our opinion, does not lay down an absolute rule that in all cases involving disputed questions of fact the parties should be relegated to a civil suit. In this view of ours, we are supported by a judgment of this Court in -3- the case of Gunwant Kaur v. Municipal Committee, Bhatinda [(1969) 3 SCC 769] where dealing with such a situation of disputed questions of fact in a writ petition this Court held: (SCC p. 774, paras 14-16) “14. The High Court observed that they will not determine disputed question of fact in a writ petition. But what facts were in dispute and what were admitted could only be determined after an affidavit-in-reply was filed by the State. The High Court, however, proceeded to dismiss the petition in limine. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition. Rejection of a petition in limine will normally be justified, where the High Court is of the view that the petition is frivolous or because of the nature of the claim made dispute sought to be agitated, or that the petition against the party against whom relief is claimed is not maintainable or that the dispute raised thereby is such that it would be inappropriate to try it in the writ jurisdiction, or for analogous reasons.

15. From the averments made in the petition filed by the appellants it is clear that in proof of a large number of allegations the appellants relied upon documentary evidence and the only matter in respect of which conflict of facts may possibly arise related to the due publication of the notification under Section 4 by the Collector.

16. In the present case, in our judgment, the High Court was not justified in dismissing the petition on the ground that it will not determine disputed question of fact. The High Court has jurisdiction to determine questions of fact, even if they are in dispute and the present, in our judgment, is a case in which in the interests of both the parties the High Court should have entertained the petition and called for an affidavit-in-reply from the respondents, and should have proceeded to try the petition instead of relegating the appellants to a separate suit.”

17. The above judgment of Gunwant Kaur [(1969) 3 SCC 769] finds support from another judgment of this Court in the case of Century Spg. and Mfg. Co. Ltd. v. Ulhasnagar Municipal Council [(1970) 1 SCC 582] wherein this Court held: (SCC p. 587, para 13) “Merely because a question of fact is raised, the High Court will not be justified in requiring the party to seek relief by the somewhat lengthy, dilatory and expensive process by a civil suit against a public body. The questions of fact raised by the petition in this case are elementary.” -4-

18. This observation of the Court was made while negating a contention advanced on behalf of the respondent Municipality which contended that the petition filed by the appellant Company therein apparently raised questions of fact which argument of the Municipality was accepted by the High Court holding that such disputed questions of fact cannot be tried in the exercise of the extraordinary jurisdiction under Article 226 of the Constitution. But this Court held otherwise.

19. Therefore, it is clear from the above enunciation of law that merely because one of the parties to the litigation raises a dispute in regard to the facts of the case, the court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the parties to a suit. In the above case of Gunwant Kaur [(1969) 3 SCC 769] this Court even went to the extent of holding that in a writ petition, if the facts require, even oral evidence can be taken. This clearly shows that in an appropriate case, the writ court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation and/or involves some disputed questions of fact. Learned counsel for the petitioners has submitted that the judgment passed by the Apex Court in the case of Syed Maqbool Ali Vs. State of Uttar Pradesh and Another reported in (2011) 15 SCC 383 may also be considered. The Para-9 of the aforesaid judgment may profitably be quoted hereunder:-

9. The remedy of a landholder whose land is taken without acquisition is either to file a civil suit for recovery of possession and/or for compensation, or approach the High Court by filing a writ petition if the action can be shown to be arbitrary, irrational, unreasonable, biased, mala fide or without the authority of law, and seek a direction that the land should be acquired in a manner known to law. The appellant has chosen to follow the second course. The High Court was not, therefore, justified in dismissing the writ petition on the ground that the remedy was under Section 18 of the Act. The order of the High Court, which is virtually a non-speaking order, apparently proceeded on the basis that the appellant was seeking increase in compensation for an acquired land. The matter therefore, requires to be reconsidered by the High Court, on merits. Learned counsel for the petitioners has submitted that the judgment passed by the Apex Court in the case of Hari Krishna Mandir Trust Vs. State of Maharastra and others reported in (2020) 9 SCC 356 may also be considered. The Para-96 to 104 of the Hari Krishna Mandir Trust may profitably be quoted hereunder:-

96. The right to property may not be a fundamental right any longer, but it is still a constitutional right under Article 300-A and a human right as -5- observed by this Court in Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel [Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel, (2008) 4 SCC 649, para 42] . In view of the mandate of Article 300-A of the Constitution of India, no person is to be deprived of his property save by the authority of law. The appellant Trust cannot be deprived of its property save in accordance with law.

97. Article 300-A of the Constitution of India embodies the doctrine of eminent domain which comprises two parts, (i) possession of property in the public interest; and (ii) payment of reasonable compensation. As held by this Court in a plethora of decisions, including State of Bihar v. Project Uchcha Vidya, Sikshak Sangh [State of Bihar v. Project Uchcha Vidya, Sikshak Sangh, (2006) 2 SCC 545 at p. 574, para 69 : 2006 SCC (L&S) 355 : 5 SCEC 589] ; Jilubhai Nanbhai Khachar v. State of Gujarat [Jilubhai Nanbhai Khachar v. State of Gujarat, 1995 Supp (1) SCC 596] ; Bishambhar Dayal Chandra Mohan v. State of U.P. [Bishambhar Dayal Chandra Mohan v. State of U.P., (1982) 1 SCC 39 : 1982 SCC (Cri) 53] , the State possesses the power to take or control the property of the owner for the benefit of public. When, however, a State so acts it is obliged to compensate the injury by making just compensation as held by this Court in Girnar Traders v. State of Maharashtra [Girnar Traders v. State of Maharashtra, (2007) 7 SCC 555, paras 55 and 56] .

98. It has been established beyond any iota of doubt that the private road admeasuring 414 sq m area had never been acquired by Pune Municipal Corporation. The right to property includes any proprietary interest, hereditary interest in the right of management of a religious endowment, as well as anything acquired by inheritance. However, laudable be the purpose, the executive cannot deprive a person of his property without specific legal authority, which can be established in a court of law.

99. In case of dispossession, except under the authority of law, the owner might obtain restoration of possession by a proceeding for mandamus against the Government as held by this Court in Wazir Chand v. State of H.P. [Wazir Chand v. State of H.P., AIR 1954 SC 415 : 1954 Cri LJ 1029] Admittedly, no compensation has been offered or paid to the appellant Trust. As observed by this Court in K.T. Plantation (P) Ltd. v. State of Karnataka [K.T. Plantation (P) Ltd. v. State of Karnataka, (2011) 9 SCC 1 : (2011) 4 SCC (Civ) 414] , even though the right to claim compensation or the obligation of the State to pay compensation to a person who is deprived of his property is not expressly provided in Article 300-A of the Constitution, it is inbuilt in the Article. The State seeking to acquire private property for public purpose cannot say that no compensation shall be paid. The Regional and Town Planning Act also does not contemplate deprivation of a landholder of his land, without compensation. Statutory authorities are bound to pay adequate compensation.

100. The High Courts exercising their jurisdiction under Article 226 of the Constitution of India, not only have the power to issue a writ of mandamus or in the nature of mandamus, but are duty-bound to exercise such power, where the Government or a public authority has failed to exercise or has wrongly -6- exercised discretion conferred upon it by a statute, or a rule, or a policy decision of the Government or has exercised such discretion mala fide, or on irrelevant consideration.

101. In all such cases, the High Court must issue a writ of mandamus and give directions to compel performance in an appropriate and lawful manner of the discretion conferred upon the Government or a public authority.

102. In appropriate cases, in order to prevent injustice to the parties, the Court may itself pass an order or give directions which the Government or the public authorities should have passed, had it properly and lawfully exercised its discretion. In Director of Settlements, A.P. v. M.R. Apparao [Director of Settlements, A.P. v. M.R. Apparao, (2002) 4 SCC 638] . Pattanaik, J. observed: (SCC p. 659, para 17) “17. … One of the conditions for exercising power under Article 226 for issuance of a mandamus is that the court must come to the conclusion that the aggrieved person has a legal right, which entitles him to any of the rights and that such right has been infringed. In other words, existence of a legal right of a citizen and performance of any corresponding legal duty by the State or any public authority, could be enforced by issuance of a writ of mandamus, “mandamus” means a command. It differs from the writs of prohibition or certiorari in its demand for some activity on the part of the body or person to whom it is addressed. Mandamus is a command issued to direct any person, corporation, inferior courts or Government, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. A mandamus is available against any public authority including administrative and local bodies, and it would lie to any person who is under a duty imposed by a statute or by the common law to do a particular act. In order to obtain a writ or order in the nature of mandamus, the applicant has to satisfy that he has a legal right to the performance of a legal duty by the party against whom the mandamus is sought and such right must be subsisting on the date of the petition (seeKalyan Singh v. State of U.P. [Kalyan Singh v. State of U.P., AIR 1962 SC 1183] ). The duty that may be enjoined by mandamus may be one imposed by the Constitution, a statute, common law or by rules or orders having the force of law.” (emphasis in original)

103. The Court is duty-bound to issue a writ of mandamus for enforcement of a public duty. There can be no doubt that an important requisite for issue of mandamus is that mandamus lies to enforce a legal duty. This duty must be shown to exist towards the applicant. A statutory duty must exist before it can be enforced through mandamus. Unless a statutory duty or right can be read in the provision, mandamus cannot be issued to enforce the same.

104. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right to relief, questions of fact may fall to be determined. In a petition under Article 226, the High Court has jurisdiction to try issues both of fact and law. Exercise -7- of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. Reference may be made inter alia to the judgments of this Court in Gunwant Kaur v. Municipal Committee, Bhatinda [Gunwant Kaur v. Municipal Committee, Bhatinda, (1969) 3 SCC 769] and State of Kerala v. M.K. Jose [State of Kerala v. M.K. Jose, (2015) 9 SCC 433] . In M.K. Jose [State of Kerala v. M.K. Jose, (2015) 9 SCC 433] , this Court held: (SCC pp. 442-43, para 16) “16. Having referred to the aforesaid decisions, it is obligatory on our part to refer to two other authorities of this Court where it has been opined that under what circumstances a disputed question of fact can be into. In Gunwant Kaur v. Municipal Committee, Bhatinda [Gunwant Kaur v. Municipal Committee, Bhatinda, (1969) 3 SCC 769] , it has been held thus: (SCC p. 774, paras 14-16) ‘14. The High Court observed that they will not determine disputed question of fact in a writ petition. But what facts were in dispute and what were admitted could only be determined after an affidavit-in-reply was filed by the State. The High Court, however, proceeded to dismiss the petition in limine. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition. Rejection of a petition in limine will normally be justified, where the High Court is of the view that the petition is frivolous or because of the nature of the claim made dispute sought to be agitated, or that the petition against the party against whom relief is claimed is not maintainable or that the dispute raised thereby is such that it would be inappropriate to try it in the writ jurisdiction, or for analogous reasons.

15. From the averments made in the petition filed by the appellants it is clear that in proof of a large number of allegations the appellants relied upon documentary evidence and the only matter in respect of which conflict of facts may possibly arise related to the due publication of the notification under Section 4 by the Collector.

16. In the present case, in our judgment, the High Court was not justified in dismissing the petition on the ground that it will not determine disputed question of fact. The High Court has jurisdiction to determine questions of fact, even if they are in dispute and the present, in our judgment, is a case in which in the interests of both the parties the High Court should have entertained the petition and called for an affidavit-in-reply from the respondents, and should have proceeded to -8- try the petition instead of relegating the appellants to a separate suit.’” (emphasis in original and supplied) Learned counsel for the petitioner has further submitted that the old Khata No. 364 has become new Khata Nos. 135 and 67 and no person has claimed over the same land including the State, as such, it is incumbent upon the BCCL to acquire the same and compensation may be made in favour of the petitioners. Learned counsel for the respondent / State, Mr. Manish Mishra, G.P.-V has submitted that supplementary counter affidavit has been filed by Sandeep Singh, son of Vijay Pal Singh, as Deputy Commissioner, Dhanbad on 30.09.2021 stating therein that no land acquisition proceeding was done for the said land and as such, the State has nothing to do with the same, rather Letter No. BCCL / LA / GM / Estate / 2021 / 87 dated 27.09.2021 of BCCL reveals that the lands in question have already been vested in B.C.C.L. on coming into force of the Coal Mines (Nationalization) Act, 1973. Learned counsel for the State has thus submitted that the said land cannot belongs to the State, rather it has been vested in B.C.C.L. under the Coal Mines (Nationalization) Act, 1973, as such, this Court may not grant relief to the petitioners. Learned counsel for the B.C.C.L., Mr. Anoop Kumar Mehta has submitted, that though Annexure-1 to the writ petition has been issued at very initial stage presuming the land to be of Mr. Shiv Prakash Agarwala, subject to verification of title on the basis of document brought on record as mentioned in the said letter (Annexure-1). Learned counsel for the B.C.C.L. has further submitted, that an affidavit has been filed by the original petitioner, Shiv Prakash Agarwala on 03.09.2014 as a rejoinder on behalf of the petitioner, wherein it has categorically been stated at para-12 that the petitioner had a complete and infeasible right over the property which is also evident from the order and judgment dated 13.11.1976 passed in Title Suit No. 14 of 1975 therefore, the question of proving the same in competent civil court and production of original documents does -9- not arise. Though the said judgment speaks otherwise, which may be perused. Learned counsel for the B.C.C.L. has further submitted that from perusal of Annexure-1 to the writ petition, it appears that on presumption such letter has been issued with regard to land of Mouza – Suranga, Thana No. 155 Khata No. 135, Plot No. 241, Area – 1.25 acres and Khata No. 67, Plot Nos. 84, 85, 86, 87, Area – 1.29 acres i.e. total Area 2.54 acres, but from perusal of document brought on record by the petitioners, no infeasible right in favour of the petitioners accrued. Learned counsel for the B.C.C.L. has further submitted that the decree, which has been brought on record by way of supplementary affidavit dated 09.09.2021, has been passed in Title Suit No. 14/1975, which reveals that plaintiff / original petitioner has claimed for - (a) For declaration of title and ownership over the agricultural implements and pumps with fittings fully described in Schedule A below of the plaint. (b) For a permanent injunction restraining the defendants their servants and agents from using the agricultural implements described in Schedule-A below:- Schedule-A

5. Mul Board Plough Dist Plough Single Dist Plough Ranchi Plough Cash Wheel. Learned counsel for the BCCL has further submitted that the documents, which have been brought on record along with this affidavit dated 09.09.2021, marked as Annexure-9 series shows that these documents are with regard to Thana No. 155, but Khata No. 364, though other documents, which have been brought on record as Annexure-9 Series further shows the land with regard to Plot Nos. 84, 85, 86 & 87, but these plots are with regard to Khata No. 364 and not with regard to Khata Nos. 135 or 67. -10- Learned counsel for the BCCL has further submitted, that even it is apparent from the continuous Khatian, which has been brought on record as Annexure-9 Series relates to Khata No. 327 and Khata No. 334 and rent receipt brought on record as Annexure-10 also relates to Khata No. 334. Learned counsel for the BCCL has thus submitted that in view of such documents, the BCCL is not satisfied that this land belongs to the petitioners for grant of compensation and as per the document available with the BCCL, it appears that these lands have been vested in B.C.C.L. under the Coal Mines (Nationalization) Act, 1973 and as such, no relief can be granted to the petitioners. Learned counsel for the BCCL has further submitted that these facts have been highlighted in reply on behalf of respondent nos. 2 to 4, filed on 29.09.2021 from para-4 to 18 and has placed reliance upon the judgment passed by the Apex Court in the case of 1993 Suppl. (1) SCC 306 [State of Rajasthan Vs. Bhawani Singh], which has been followed in the case of Radhey Shyam and Another Vs. Chhabi Nath and others reported in (2009) 5 SCC 616. Para-17 to 19 & 21 of the aforesaid judgment may profitably be quoted hereunder:-

17. Subsequently also in Hindustan Steel Ltd. v. Kalyani Banerjee [(1973) 1 SCC 273] this Court relying on the ratio in Sohan Lal [AIR 1957 SC 529] held that since serious questions as to the validity of the respondent's title were raised and the dispute is on the possession of land and as the respondent failed to produce any clear, conclusive and unimpeachable documentary evidence, the matter cannot be dealt with by a writ court. Referring to Sohan Lal [AIR 1957 SC 529] in para 16, the learned Judges held: (Kalyani Banerjee case [(1973) 1 SCC 273] , SCC p. 282) “16. … proceedings by way of a writ were not appropriate in a case where the decision of the court would amount to a decree declaring a party's title and ordering restoration of possession. This Court further held that the proper remedy in such a case is by way of a title suit in a civil court and the alternative remedy of obtaining relief by a writ of mandamus or an order in the nature of mandamus could only be had if the facts were not in dispute and the title of the property in dispute was clear.” -11-

18. Similarly, in State of Rajasthan v. Bhawani Singh [1993 Supp (1) SCC 306 : AIR 1992 SC 1018] this Court held that the writ petition is not the appropriate remedy in order to give a declaration of a person's title to property, the Court made it very clear that disputed questions of title cannot be satisfactorily adjudicated in a writ petition (SCC p. 309, para 7: AIR p. 1020, para 7).