Gobardhan Prasad And ORS v. The State Of Bihar And ORS

THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.7814 of 2015 ====================================================== 1.

Gobardhan Prasad Son of Late Janki Mahto.

2.

Sidheshwar Prasad. Son of Late Basudeo Mahato. 3.

Jitendra Kumar. Son of Late Balchand Mahto.

4.

Sitaram Prasad. Son of Late Punit Mahto.

5.

Tulsi Mahto. Son of Late Neman Mahto.

6.

Shambhu Sharan Prasad. Son of Late Tek Narayan Mahto. 7.

Rajendra Yadav. Son of Late Pitambar Yadav.

8.

Manish Kumar Sinha. Son of Raghunandan Prasad. 9.

Mohan Prasad. Son Late Mathura Mahto.

10.

Ashok Kumar. Son of Pashupati Nath Verma.

11.

Shashi Bhushan Kumar. Son of Rameshwar Prasad. 12.

Awadhesh Prasad. Son of Late Rameshwar Mahto. 13.

Surendra Kumar. Son of Bhola Shankar Prasad.

14.

Daya Nand Prasad. Son of Shiv Nandan Prasad.

15.

Naresh Prasad. Son of Late Ghanshyam Mahto.

16.

Shivan Prasad. Son of Late Nemdhari Mahto.

17.

Dilip Kumar. Son of Late Ram Kishun Mahto.

18.

Parshuram Prasad. Son of Late Jageshwar Mahto. 19.

Ramchandra Prasad. Son of Late Tunu Mahto. All resident of village - Mocharim, Post - Mocharim, Police Station - Bodh Gaya, District - Gaya. ... ... Petitioner/s

Versus

1.

The State Of Bihar 2.

The Collector, Gaya.

3.

The Additional Collector, Gaya.

4.

The Land Acquisition Officer, Gaya.

5.

The Circle Officer, Bodh Gaya, Gaya.

6.

The Officer-in-charge, Bodh Gaya Police Station, District - Gaya. ... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s :

Mr. Kamal Nayan Choubey, Sr. Advocate with Mr. Ambuj Nayan Chaubey, Mr. Prashant Kumar, Advocates For the Respondent/s :

Mr. Ajay Kumar Sharma, AC to AG ======================================================

2/24 CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL JUDGMENT Date : 26-04-2019 Following are the reliefs which the petitioners are claiming:- "(i) Issuance of an appropriate writ including a writ in the nature of certiorari for quashing the Notice purporting to be under Land Acquisition Act, 1894 (hereinafter referred to as the Act) and the rules framed there under (hereinafter to be referred as'the Rules') and the consequent notices issued to the petitioners in respect of the lands of the petitioners as contained in Annexure-1 series to this petition.

(ii) Issuance of an appropriate writ order or direction commanding the respondents to forebear from giving effect to the impugned order and the notices and interdicting them from interfering with the right, title, interest and possession over the lands in question;

(iii) Issuance of an appropriate writ order of direction holding that the assumption of

3/24 jurisdiction and the entire proceeding under the Act and the Rules is an abuse of the matter and manifestly the respondents are accountable under the Public Land Encroachment Act and are liable to be fastened with adequate amount of compensation payable to the petitioners."

2. The petitioners claim that they are almost landless and they own and possess small piece of land and they would be deprived of their possession, would be left with no land to live, if their land is acquired. The descriptions of the lands in question, as claimed by the petitioners have been given in paragraph 5 of the writ application which reads thus:- " S.No.

Name Father's name Relation with noticee Khata Plot Area in decimal Gobardhan Prasad Late Janki Mahto Son 2028 15 Sidheshwar Prasad Late Basdeo Mahto Son 2037 08 7708 05 Jitendra Kumar Late Balchandra Mahto Son 2036 10 Sitaram Prasad Late Punit Mahto Son 2058 38 Tulsi Mahto Late Neman Self 2060 32 Malhto Shambhu Sharam Prasad Late Teknarain Mahto Self 2055 18

4/24 Rajendra Yadav Late Ptamber Yadav Grandson 640 2053 20 2056 19 Manish Kumar Sinha Shri Raghunandan Prasad Grandson 1039 2034 10 Mohan Prasad Late Mathura Mahto Grandson 458 2057 31 Ashok Kumar Shri Pashupatinath Prasad Grandson 102 2029 12 Shashi Bhushan Kumar Shri Rameshwar Prasad Grandson 1957 2033 10 Awadhesh Prasad Late Rameshwar Mahto Son 2038 10 Surendra Prasad Shri Bhola Shanker Prasad Purchaser fron noticee (Krishna Choudhary) 2031 08 Dayanand Prasad Shri Sheonandan Prasad Grandson 21 2035 12 Naresh Prasad Late Ghandhsyam Mahto Son 2039 06 Shivan Prasad Late Nemdhari Mahto Son 2032 08 Dilip Kumar Late Ram Kishun Mazhto Grandson 213 2041 15 Parshuram Prasad Late Jageshar Matho Son 2038 10 Ramchandra Matho Late Tunu Mahto Self 2038 10

3. It appears that the intendment of the State is to acquire total 33 acres of land for the purpose of development of Muchlind Sarowar situated in village Muchlind at Bodh

5/24 Gaya. It further appears from the records, which have been produced before this Court under the Court's order that the Muchlind Sarowar is a place of great relevance for the followers of Buddhism which is visited by large number of people throughout the year. It has been described as a place of immense significance from the point of view of pilgrimage and tourism. The Government land available in the vicinity of religious site has been described to be inadequate for the said purpose and for the purpose of protection of the site. The lands in the vicinity of Muchlind Sarowar was accordingly intended to be acquired by the Tourism Department, in its vicinity under emergent circumstance. Accordingly, lands measuring 3.3 acres in the vicinity of Muchlind Sarowar is subject matter of acquisition and by invoking urgency Clause 17 of the Act of 1894, the notices were issued.

4. The grounds which have been taken in support of the writ application are 14 in number, which have been disclosed in paragraph 2 of the writ application and are being quoted herein below:- "(i) Because, the Act having been repealed, there is no authority of law to proceed for acquisition against the petitioners;

(ii) Because, the notices are in contradiction in terms inasmuch as there is a

6/24 Notification for filing objections whereas the application of Section 5A of the Act has been ruled out?

(iii) Because, the condition precedent for examination of the power under the Act is not made out and there is no public purpose behind it.

(iv) Because the extension of the existing bank is not public purpose authorizing the respondents to proceed for acquisition of any land.

(v) Because, the petitioners being almost landless cannot be deprived of their only means of livelihood which is the small piece of land involved in the present proceeding.

(vi) Because, what cannot be done directly should not be allowed to be done indirectly.

(vii) Because, resort to the Act for acquisition is an abuse of the statutory power of respondents and the respondents are accountable for their omissions and commissions in public land and the petitioners are entitled to adequate compensation from them to misuse and abuse of their power.

(viii) Because, issuance of an appropriate writ or holding that the assumption of jurisdiction and the entire proceeding under the Act and the Rules is an abuse of the matter and is manifestly the respondents are accountable under the Public Land Encroachment Act and are liable to be fastened with adequate amount of compensation payable to the petitioner.

(ix) Because, the Notification of satisfaction of the relevant authority namely the Government is conspicuously

7/24 absent in the impugned notice.

(x) Because, the Collector or the Additional Collector are not authorized to assume jurisdiction and proceed in the matter of acquisition of the land from the petitioners.

(xi) Because, the respondents have almost mechanically and without application of mind issued the notices even against the dead persons and without taking into consideration the transfers made by the recorded tenants or his heirs.

(xii) Because, the notices being vague and omnibus are vulnerable.

(xiii) Because, the impugned notice and the notices are in teeth of the authoritative pronouncement and binding precedent.

(xiv) Because, instead of achieving any public purposes the impugned notice and the notices are frustration of the right, title, interest and possession of the down-trodden and have-nots."

5. Counter affidavit, supplementary counter affidavit and second supplementary counter affidavit have been filed on behalf of the State Government. It has been stated in the counter affidavit that it is a place is of international importance from tourism point of view, and therefore, a notification was issued on 13.09.2013 (Annexure-A) invoking Clause 17(4) of the Act of 1894 to the effect that Section 5A of

8/24 the Act of 1894 shall not apply. It has further been stated in the counter affidavit that since, till filing of the counter affidavit, no award could be prepared, the land owners shall be entitled to compensation in terms of sub-Section (1) of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as 'the Act of 2013'). On the question of transfer of land under acquisition by concerned raiyats to the petitioners, it has been stated in the counter affidavit that they shall be paid according to their entitlements in accordance with law, after considering objections/claims in this regard.

6. I must note at this stage that though there is a statement in paragraph 7 of the application that some of the petitioners had filed objections before the Land Acquisition Officer and a copy of such objection has been annexed as Annexure-2 to the writ application, on perusal of the original records produced by the learned counsel for the State, it appears that no such objection was ever filed by them. As a matter of fact, after filing of the present writ application, they appear to have filed representation before the District Land Acquisition Officer, Gaya received on 20.09.2016 which is available in the original records. On perusal of the original records, I find that

9/24 a copy of Annexure-2 of the writ application is there in the original records just below the representation received on 19.09.2016, after filing of the writ application, but it is manifest that the said document has apparently been copied from the present writ application, which can be easily discerned from the fact that "Annexure-2" written at the top of page 55 of the present writ application is also there in the representation. The representation at Annexure-2 is from page 55 to 66 of the writ application which page numbers figure in the original records from page 35 to 24. I have thus, no hesitation in reaching a definite conclusion that what is there at page 35 to 24 in the original records of Consolidation Case No. 01/13-14 are copies taken from the present writ application.

My opinion stands reinforced on looking at the right side of the bottom of the said pages, which have been described as pages at the bottom of Annexure-2. Annexure-2 of the writ application which the petitioners claim to be their objection is apparently undated and does not disclose in proof of receipt by the office of the Land Acquisition Officer, Gaya. In my view, therefore, the petitioners have made a false statement in paragraph 7 of the writ application and have manufactured a document in the form of Annexure-2, claiming the same to be objection filed by them.

10/24 There was, thus, no objection filed on their behalf to the process of acquisition as asserted in the writ application. In the supplementary counter affidavit filed on behalf of the State respondents, it has been stated, inter alia, that in the present case award has already been made and notices have also been served upon the awardees, who have intentionally not received the award. It has further been stated that the award has been prepared after due compliance of the provisions for preparation of award under the Act of 2013. Documents have been brought on record to suggest preparation of award and service of notices upon some of the respondents for payment of the award.

The petitioners, in their reply to the counter affidavit filed on behalf of the State respondents have, apart from denying the legal plea on the point of lapse of the acquisition proceeding have made following statement in paragraph 6:- "6. That rest part of the para-7 of the Counter affidavit is denied to the extent that land acquisition proceedings shall not lapse, but fact of the matter is that as per Section 24 of the New Act, 2013 the present acquisition proceeding shall be lapsed because it is admitted that till the commencement of New Act no award has been prepared."

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7. It has also been asserted that the District Land Acquisition Officer vide letter/notice dated 17.03.2017 have been compelling them to receive the amount of compensation else the possession would be taken upon depositing the compensation amount in competent Court. It is, thus, evident from their own averment in the counter affidavit that after preparation of award, despite the award money having been offered to them, the petitioners have refused to receive the amount.

8. I have heard at length Mr. Kamal Nayan Choubey, learned Senior Counsel appearing on behalf of the petitioners.

9. In addition, to his oral submission, he has also filed written propositions/notes of arguments. He has made a somewhat peculiar submission, in the light of an interim order dated 29.03.2017 passed in the present case, whereby the Court upon noticing the fact that the award was prepared sometime in the year 2017, i.e., after three years of the coming into force of the Act of 2013, had asked learned AC to learned Advocate General appearing for the State, to verify as to whether there had been compliance of the proviso to Section 25 of the Act of 2013. While adjourning the matter for the said purpose, the

12/24 Court granted an interim order in the nature that in the meantime, the possession of the petitioners shall not be disturbed till further orders of this Court. This Court in the said interim order dated 29.03.2017 has interpreted Section 24(1) (a) of the Act of 2013 and the effect of the proviso to Section 25 of the Act of 2013, if the award was not prepared within the stipulated time. The relevant portion of the said order is being quoted herein below, in view of the argument which has been advanced by Mr. Choubey, learned Senior counsel for the petitioners:- "Admittedly, notification was issued on 03.09.2013 and the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 ( in short "Act, 2013") came into force on 01.01.2014 and at the time of coming into force of the aforesaid Act, no award had been prepared. Petitioners have prayed for quashing notification issued under the Land Acquisition Act, 1894.

Section 24(1) (a) of the Act, 2013 says that where no award under Section 11 of the Land Acquisition Act has been made then,

13/24 all provisions of the Act, 2013 relating to determination of compensation shall apply. The aforesaid provision clearly goes to show that if at the time of coming into force of the Act, 2013, award has not been prepared, then, the compensation shall be determined on the basis of new Act, 2013.

Furthermore, Section 25 of the Act, 2013 says that the Collector shall make an award within a period of 12 months from the date of publication of the declaration under Section 19 and if no award is made within that period, the entire proceedings of the Land Acquisition shall lapse. The combined reading of Sections 11 of Land Acquisition Act and Sections 24 and 25 of the Act, 2013 goes to show that it is mandatory that the award must be prepared within 12 months from the declaration made under Section 19 of the Act, 2013. Furthermore, it is obvious from the aforesaid provision that if the notification has been issued under the Old Act, 1894, and if at the time of coming into force of the Act, 2013, award has not been prepared, then, in that circumstance, it shall be deemed that notification has been

14/24 issued under the Act, 2013. Section 25 of the Act, 2013 makes it mandatory that the award must be prepared within 12 months from the date of publication. Therefore, it is obvious that the notification issued under old Act shall be deemed to have been issued under the Act, 2013, if the award has not been prepared at the time of coming into force of the Act, 2013 and as per section 25 of the Act, 2013, the award must be prepared within 12 months from the date of coming into force of the Act, 2013.

However, proviso has also been annexed with Section 25 of the Act, 2013 and the said proviso says that government shall have power to extend the period of 12 months if, in its opinion, circumstances exist justifying the same but one rider has been imposed upon the aforesaid proviso that any decision to extend the period shall be recorded in writing and the same shall be notified and be uploaded on the website of the authority concerned."

10. Mr. Choubey, learned Senior counsel, has

15/24 submitted that the said interim order dated 29.03.2017, operates as res judicata on the issue, which has been clearly decided, since it has been determined conclusively by this Court by the said order dated 29.03.2017 that if the award is not prepared from the date of coming into force of the Act of 2013, the acquisition proceeding shall be deemed to have lapsed. He has accordingly, argued that this Court, now, cannot take view other than the view which has been taken in the interim order dated 29.03.2017. In support of his submission, he has placed reliance on Supreme Court's decisions in case of U.P. State Road Transport Corporation Vs. State of U.P. and another (AIR 2005 SC 446) and in case of Satyadhyan Ghosal and another Vs, Smt. Deorjin Debi and another (AIR 1960 SC 941).

He has argued that against the said final observation made by this Court in the interim order dated 29.03.2017, since the State did not prefer any appeal, this Court has now no other option but to follow what has been recorded in the said interim order dated 29.03.2017. I reject this submission at the very threshold.

16/24 protection is not granted. Apparently, after having found prima facie, case in favour of the petitioners, keeping in mind the balance of convenience and irreparable loss and injury, this Court had passed the interim order dated 29.03.2017. The said interim order, it is needless to say, is subject to final adjudication of the matter. The decisions in case of Satyadhyan Ghosal and another (supra) and in case U.P. State Road Transport Corporation (supra), do not apply at all in the facts and circumstances of the present case, for the reasons stated above.

11. The Supreme Court in case of U.P. State Road Transport Corporation (supra), relying on the decision in case of Satyadhyan Ghosal and another (supra), held in paragraph 11 that the principle of res judicata is based on the need of giving a finality to judicial decisions. The said principle, which prevents the same case being twice litigated is of general application, and is not limited by the specific words of Section 11 of the Code of Civil Procedure. The Supreme Court added, "res judicata applies also as between two stages in the same litigation to this extent that the trial court or a higher Court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at

17/24 the subsequent stage of the same proceeding. What has been held in Satyadhyan Ghosal (supra), relying on which the Supreme court made the aforesaid observations in paragraph 16 as quoted above can be easily found in paragraph 21, which is to the effect that interlocutory judgments which have the 'force of a decree' must be distinguished from other interlocutory judgments, which are a step towards the decision of the dispute between the parties by way of a decree or a final order. Paragraph 21 of the said decision in case of Satyadhyan Ghosal and others (supra), is in fact reply to the submission, in this regard made by Mr. Choubey, which is being quoted herein below for quick reference:- "21. It will be noticed that in all these three cases, viz., Ram Kirpal Shukul's case, Bani Ram case and Hook case the previous decision which was found to be res judicata was part of a decree. Therefore though in form the later proceeding in which the question was sought to be raised again was a continuation of the previous proceeding, it was in substance, an independent subsequent proceeding.

The decision of a dispute as regards execution it is hardly necessary to mention was a decree under the Code of Civil Procedure and so in Ram Kirpal case and Bani Ram case such a decision being a decree really terminated the previous proceedings.

18/24 The fact therefore that the Privy Council in Ram Kirpal Shukul case described Mr. Proby'n order as an "interlocutory judgment" does not justify the learned counsel's contention that all kinds of interlocutory judgments not appealed from become res judicata. Interlocutory judgments which have the force of a decree must be distinguished from other interlocutory judgments which are a step towards the decision of the dispute between parties by way of a decree or a final order. Moheshur Singh case, Forthes case and Sheonaths case dealt with so interlocutory judgments which did not terminate the proceedings and led up to a decree or final order. Ram Kirpal Shukul case, Bani Rams case and Hook case deal with judgments which though called interlocutory, had, in effect, terminated the previous proceedings. These cases are therefore of no assistance to the learned counsel for the respondent in his argument that the order of remand made by the High Court not having been appealed from to this Court the correctness of that order cannot be challenged now."

12. A bare reading of the interim order dated 29.03.2017, in the background of the facts, which have been noted in the present judgment, the same cannot be treated to be having 'the force of a decree' so as to apply doctrine of res judicata, relying on Supreme Court's decisions in case of

19/24 Satyadhyan Ghosal and others (supra) and U.P. State Road Transport Corporation (supra).

13. A significant aspect of the matter at this point needs to be noted is that the interim order dated 29.03.2017 does not notice the crucial fact that the acquisition proceeding was under Section 17(1) of the Act of 1894. Mr. Choubey, learned Senior counsel, has referred to one of the annexures at page 26 of the writ application which is a declaration under Section 6 of the Act of 1894 and on that basis he has contended that the petitioners did not have any knowledge about acquisition under Section 17 of the Act of 1894. Referring to the notification published in the newspapers dated 13.09.

2013, issued in exercise of power under Section 4 of the Act, declaring intention of the State Government to acquire the land in question under Section 17(4) of the Act of 1894, he has submitted that the petitioners did not have any knowledge about the said notification published in the newspapers. There is no denial, however, that the said notifications were published in the newspapers, circulated in the State of Bihar.

20/24 that they have filed objection as has been stated in paragraph 7 of the writ application is completely false, based on manufactured, fabricated documents.

14. Mr. Ajay Kumar Sharma, learned Assistant Counsel to learned Advocate General has relied on following judgments of the Supreme Court's that once land is to be acquired invoking urgency provision under Section 17(1) of the Act of 1894 such acquisition proceeding shall not lapse by operation of Section 11A of the Act of 1894:-

1. (1995) 6 SCC 31 (Awadh Bihari Yadav and others vs. State of Bihar and others

2. (1993) 4 SCC 369 ( Satendra Prasad Jain and others vs. State of U.P. and others)

3. (1996) 6 SCC 424 (Allahabad Development Authority Vs. Nasiruzzaman and others)

4. (2002) 4 SCC 160 ( First Land Acquisition Collector and others vs. Nirodhi Prakash Gangoli and another)

5. 2012 (1) PLJR 339 ( Mt. Prabhawati Widow of late Madan Mishra, and others vs.

State of Bihar and Ors).

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15. It is manifest from the language of subSection (2) of Section 114 of the Act of 2013 that 'save as otherwise provided in this Act' the repeal under sub-section (1) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 with regard to the effect of the repeals. In quick succession, language of Section 24(1) of the Act of 2013 needs to be referred to which is a non obstante Clause and states that in any case of land acquisition proceeding initiated under the Act of 1894, where no award under Section 11 of the said Act has been made, then all provisions relating to 'determination of compensation shall apply'.

16. In case of Satendra Prasad Jain Vs State of U.P. (supra), the Supreme court has specifically held that when Section 17(1) is applied by reason of urgency, the owner is divested of the title to the land which is vested in the Government and in view of unmistakable language of Section 17(1) of the Act of 1894, Section 11-A of the Act can have no application to cases of such acquisition under Section 17, because the lands have already vested in the Government and there is no provision in the Act by which the land statutorily vested in the Government can revert to the owner. This view of

22/24 mine finds support from a recent decision of the Supreme Court in case of Okhala Industrial Development Authority Vs. Hari Kishan (dead) through Legal Representatives and Ors., reported in (2017) 3 SCC 588. The plea, therefore, that the acquisition proceeding initiated under Section 17(1) of the Act of 1894, stood lapsed is rejected.

17. As has already been noted herein above, the petitioners have taken a false plea that they had raised objections to the process of acquisition, their plea that they were not knowing that the process of acquisition was under Section 17(1) of the Act of 1894 is equally false.

18. I, therefore, hold that the petitioners have, thus, not approached this Court with clean hands and they have rather attempted to develop their case on the basis of such facts which are manifestly false. I am of the definite view and record a finding to the effect that Annexure-2 of the writ application, which they claim to be their objections filed before the Land Acquisition Officer, Gaya purportedly under Section 6 of the Act of 1894 is a manufactured document, which was never sent to the addressee, before filing of the writ application. The original records show that a photocopy of the so-called undated representations taken from the writ petition was sent to the Land

23/24 Acquisition Officer, which are at page 24 to 35. In my view, the petitioners have attempted to play fraud on this Court and have made misrepresentations, which are uncondonable.

19. It is settled legal position that the conduct of a litigant in a proceeding under Article 226 of the Constitution of India may disentitle him to any relief, even if he may be otherwise entitled to. The Court while exercising discretionary jurisdiction is entitled to see the conduct of the parties. Reference may be made in this regard to few of the Supreme Court's decisions on this aspect in the cases of Lajpat Rai Mehta Vs. Secretary to the Government of Punjab, Department of Irrigation and Power, Chandigarh reported in (2009) 3 SCC 260, C.K. Prahalada Vs. State of Karnataka, (2008) 15 SCC 577 and Tanna and Modi Vs. CIT, ( 2007) 7 SCC 434.

20. It has been aptly held in case of Meghmala and others vs. G. Narasimha Reddy and others reported in (2010) 8 SCC 383 that dishonesty should not be permitted to bear the fruit and benefit to the persons who played fraud or made misrepresentation. In case of Ramrameshwari Devi and others Vs Nirmala Devi and others reported in (2011) 8 SCC 249, the Supreme Court has held that in order to curb uncalled

24/24 for and frivolous litigation, the Courts have to ensure that there is no incentive or motive for uncalled for litigation.

21. I strongly deprecated the manner in which the petitioners have approached this Court by filing the present writ application on the basis of false plea, which is manifest.

22. This writ application deserves to be dismissed on the said ground alone.

23. Any observation, however, made in the present order should not come in way of the determination and payment of due compensation in accordance with law, in terms of Section 24(1) of the Act of 2013.

(Chakradhari Sharan Singh, J) arun/- AFR/NAFR AFR CAV DATE N/A Uploading Date 07.05.2019 Transmission Date N/A