Patna High Court
Sunil Kumar Singhi vs The State Of Bihar And Ors on 29 November, 2024
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.6863 of 2018
======================================================
Girish Kedia, Son of Jai Prakash Kedia, resident of R.B. Lane, P.O. and P.S.-
Forbesganj, District- Araria.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary cum-Commissioner
Department of Revenue and Land Reforms, Government of Bihar, Patna
2. The Principal Secretary cum Commissioner, Department of Revenue and
Land Reforms, Government of Bihar, Patna
3. The District Magistrate Collector Araria.
4. The District Land Acquisition Officer, Araria.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 15091 of 2017
======================================================
1. Mahesh Prasad Yadav
2. Ghanshyam Yadav @ Shyam Prasad Yadav
3. Bindeshwari Yadav
All Sons of late Sadanand Yadav, Resident of Village- Gimrahi, Post-
Sonapur, Police Station- Narpatganj, District Araria.
... ... Petitioner/s
Versus
1. The State of Bihar through Principal Secretary, Revenue and Land Reforms
Department, Government of Bihar, Patna
2. The District Magistrate, Araria.
3. The District Land Acquisition Officer, Araria.
4. The Circle Officer, Narpatganj, District Araria.
5. The Chief Manager, State Bank of India Forbesganj Branch, Code 00077,
District- Araria.
6. The Chief General Manager, State Bank of India, Bihar, Patna.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 6345 of 2018
======================================================
Saroj Mishra, Wife of Suman Kumar Mishra, Resident of Village- Mishra
Tola, Part Kohaliya, Anchal + P.S.- Forbesganj, District- Araria.
... ... Petitioner/s
Versus
Patna High Court CWJC No.6863 of 2018 dt. 29-11-2024
2/35
1. The State of Bihar through Principal Secretary, Revenue and Land Reforms
Department, Govt. of Bihar, Patna
2. The Principal Secretary, Land Acquisition Department, Govt. of Bihar,
Patna.
3. The Director, Land Acquisition and Rehabilitation Department, Govt. of
Bihar, Patna.
4. The District Magistrate/Collector, Araria, District- Araria.
5. The Special Land Acquisition Officer, Araria, District- Araria.
6. The District Land Acquisition Officer, Araria, District- Araria.
7. The Executive Engineer, Road Construction Department, Road Division,
District- Araria.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 7943 of 2018
======================================================
Anil Kumar Agrawal, Son of Braj Mohan Agrawal, Resident of Sadar Road,
P.O. and P.S.- Forbesganj, District- Araria.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary cum Commissioner,
Department of Revenue and Land Reforms, Government of Bihar, Patna.
2. The Principal Secretary, Commissioner Department of Revenue and Land
Reforms, Government of Bihar, Patna.
3. The District Magistrate Collector, Araria.
4. The District Land Acquisition Officer, Araria.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 8046 of 2018
======================================================
Abhishek Singhi Alias Abhishek Kumar Singhi, Son of Sunil Kumar Singhi,
Resident of High School Road, P.O. and P.S.- Forbesganj, District- Araria.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary cum Commissioner
Department of Revenue and Land Reforms, Government of Bihar, Patna
2. The Principal Secretary, Commissioner Department of Revenue and Land
Reforms, Government of Bihar, Patna.
3. The District Magistrate Collector, Araria.
4. The District Land Acquisition Officer, Araria.
... ... Respondent/s
======================================================
Patna High Court CWJC No.6863 of 2018 dt. 29-11-2024
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with
Civil Writ Jurisdiction Case No. 8052 of 2018
======================================================
Sunil Kumar Singhi, Son of Late Moolchan Singhi, Resident of High School
Road, P.O. and P.S. Forbesganj, District- Araria through its power of attorney
holder namely Abhishek Singhi alias Abhishek Kumar Singhi, Son of Sunil
Kumar Singhi, Resident of High School Road, P.O. and P.S.- Forbesganj,
District- Araria.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary cum Commissioner,
Department of Revenue and Land Reforms, Government of Bihar, Patna.
2. The Principal Secretary, Commissioner Department of Revenue and Land
Reforms, Government of Bihar, Patna.
3. The District Magistrate cum Collector, Araria.
4. The District Land Acquisition Officer, Araria.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 8360 of 2018
======================================================
Rameshwar Mehta, Son of Baukai Mehta, Resident of Village- Bela, Ward No
5, P.S.- Narpatganj, Dist.- Araria.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Revenue and Land
Reforms Department, Government of Bihar, Patna
2. The Principal Secretary, Land Acquisition Department, Govt. of Bihar,
Patna.
3. The Director, Land Acquisition and Rehabilitation Department, Govt. of
Bihar, Patna.
4. The District Magistrate/Collector, Araria, District- Araria.
5. The Special Land Acquisition Officer, Araria, District- Araria.
6. The District Land Acquisition Officer, Araria, District- Araria.
7. The Executive Engineer, Road Construction Department, Road Division,
District- Araria.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 8700 of 2018
======================================================
Shailesh Kumar Jain, Son of Santosh Chand Baid, Resident of Sadar Road,
P.O. and P.S. Forbesganj, District- Araria.
... ... Petitioner/s
Versus
Patna High Court CWJC No.6863 of 2018 dt. 29-11-2024
4/35
1. The State of Bihar through the Principal Secretary cum Commissioner,
Department of Revenue and Land Reforms, Government of Bihar, Patna
2. The Principal Secretary Cum Commissioner, Department of Revenue and
Land Reforms, Government of Bihar, Patna
3. The District Magistrate Collector, Araria.
4. The District Land Acquisition Officer, Araria.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 10255 of 2018
======================================================
Tuliya Devi, Wife of Vishwanath Gupta, Resident of Village- Barouganj,
P.O.- Bela, P.S.- Narpatganj, Dist.- Supaul.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary Revenue and Land
Reforms Department, Government of Bihar, Patna.
2. The Principal Secretary, Land Acquisition Department, Govt. of Bihar,
Patna.
3. The Director, Land Acquisition and Rehabilitation Department, Govt. of
Bihar, Patna.
4. The District Magistrate/Collector, Araria, District- Araria.
5. The Special Land Acquisition Officer, Araria, District- Araria.
6. The District Land Acquisition Officer, Araria, District- Araria.
7. The Executive Engineer, Road Construction Department, Road Division,
District- Arwal.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 11474 of 2018
======================================================
Indradev Yadav, S/o Late Domi Yadav, R/o Village- Bela, Anchal + P.S.-
Narpatganj, District- Araria
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Revenue and Land
Reforms Department, Government of Bihar, Patna
2. The Principal Secretary, Land Acquisition Department, Govt. of Bihar, Patna
3. The Director, Land Acquisition and Rehabilitation Department, Govt. of
Bihar
4. The District Magistrate/Collector, Araria, District- Araria
5. The Special Land Acquisition Officer, Araria, District- Araria
6. The Director Land Acquisition Officer, Araria, District- Araria
Patna High Court CWJC No.6863 of 2018 dt. 29-11-2024
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7. The Executive Engineer, Road Construction Department, Road Division,
District- Araria
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 11697 of 2018
======================================================
Kanchan Devi, Wife of Gowardhan Sah, Resident of Village- Bhadeswar,
P.S.- Farbisganj, District- Araria.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Revenue and Land
Reforms Department, Government of Bihar, Patna.
2. The Principal Secretary, Land Acquisition Department, Govt. of Bihar,
Patna.
3. The Director, Land Acquisition and Rehabilitation Department, Govt. of
Bihar, Patna.
4. The District Magistrate/Collector, Araria, District- Araria.
5. The Special Land Acquisition Officer, Araria, District- Araria.
6. The Special Land Acquisition Officer, Araria, District- Araria.
7. The Executive Engineer, Road Construction Department, Road Division,
District- Araria.
... ... Respondent/s
======================================================
Appearance :
(In Civil Writ Jurisdiction Case No. 6863 of 2018)
For the Petitioner/s : Mr. Gautam Kumar Kejriwal, Advocate
Mr. Atal Bihari Pandey, Advocate
Mr. Alok Kumar Jha, Advocate
Mr. Mukund Kumar, Advocate
Mr. Akash Kumar, Advocate
Mr. Aditya Raman, Advocate
For the Respondent/s : Mr. Rishi Raj Sinha, SC- 19
Mr. Birendra Prasad Singh, AC to SC- 19
(In Civil Writ Jurisdiction Case No. 15091 of 2017)
For the Petitioner/s : Mr. Amar Nath Singh, Advocate
Mr. Kamal Kishore Singh, Advocate
For the Respondent/s : Mr. Rishi Raj Sinha, SC- 19
(In Civil Writ Jurisdiction Case No. 6345 of 2018)
For the Petitioner/s : Mr. Sharda Nand Mishra, Advocate
For the Respondent/s : Md.Khurshid Alam, AAG- 12
(In Civil Writ Jurisdiction Case No. 7943 of 2018)
For the Petitioner/s : Mr. Gautam Kumar Kejriwal, Advocate
Mr. Atal Bihari Pandey, Advocate
Mr. Alok Kumar Jha, Advocate
Mr. Mukund Kumar, Advocate
Mr. Akash Kumar, Advocate
Mr. Aditya Raman, Advocate
For the Respondent/s : Mr. Raj Kishore Roy, GP- 18
(In Civil Writ Jurisdiction Case No. 8046 of 2018)
For the Petitioner/s : Mr. Gautam Kumar Kejriwal, Advocate
Patna High Court CWJC No.6863 of 2018 dt. 29-11-2024
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Mr. Atal Bihari Pandey, Advocate
Mr. Alok Kumar Jha, Advocate
Mr. Mukund Kumar, Advocate
Mr. Akash Kumar, Advocate
Mr. Aditya Raman, Advocate
For the Respondent/s : Mr. Subhash Chandra Yadav, GP-15
(In Civil Writ Jurisdiction Case No. 8052 of 2018)
For the Petitioner/s : Mr. Gautam Kumar Kejriwal, Advocate
Mr. Atal Bihari Pandey, Advocate
Mr. Alok Kumar Jha, Advocate
Mr. Mukund Kumar, Advocate
Mr. Akash Kumar, Advocate
Mr. Aditya Raman, Advocate
For the Respondent/s : Mr. Raj Kishore Roy, GP- 18
(In Civil Writ Jurisdiction Case No. 8360 of 2018)
For the Petitioner/s : Mr. Sharda Nand Mishra, Advocate
For the Respondent/s : Mr. Sajid Salim Khan, SC- 25
(In Civil Writ Jurisdiction Case No. 8700 of 2018)
For the Petitioner/s : Mr. Gautam Kumar Kejriwal, Advocate
Mr. Atal Bihari Pandey, Advocate
Mr. Alok Kumar Jha, Advocate
Mr. Mukund Kumar, Advocate
Mr. Akash Kumar, Advocate
Mr. Aditya Raman, Advocate
For the Respondent/s : Mr. Sajid Salim Khan, SC- 25
(In Civil Writ Jurisdiction Case No. 10255 of 2018)
For the Petitioner/s : Mr. Sharda Nand Mishra, Advocate
For the Respondent/s : Mr. Raj Kishore Roy, GP-18
(In Civil Writ Jurisdiction Case No. 11474 of 2018)
For the Petitioner/s : Mr. Sharda Nand Mishra, Advocate
For the Respondent/s : Mr. Sajid Salim Khan, SC- 25
(In Civil Writ Jurisdiction Case No. 11697 of 2018)
For the Petitioner/s : Mr. Sharda Nand Mishra, Advocate
For the Respondent/s : Md. Khurshid Alam, AAG-12
======================================================
CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
CAV JUDGMENT
Date : 29-11-2024
Considering the identical grievance based upon
similar facts, with the consent of all the parties; these batch of
the writ petitions were heard simultaneously and being disposed
of by this common order/judgment. The facts of CWJC No.
6863 of 2018 are being taken note of as a lead case.
2. The petitioners in all these batch of the writ
petitions happened to be the owner of the lands, particulars of
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which have been duly mentioned in their respective writ
petitions and were acquired for the purpose of constructing
Indo-Nepal Border Road under the Right to Fair Compensation
and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 (For the brevity 'the Act, 2013').
3. The petitioners are aggrieved by the letter/notice
issued under Memo No. 459 dated 28.07.2017, as also other
identical letters, issued on different dates, as well as the entire
proceeding initiated by the District Magistrate/Collector, Araria
on the basis thereof the respondents have re-opened the
proceeding of acquisition already finalized and the amount of
compensation and solatium already paid to the petitioners and,
as such, barred in terms of Section 37 of the Act, 2013. The
petitioners are also aggrieved by the letter no. 452 dated
28.07.2017
and other similar letters issued by the District Land
Acquisition Officer, Araria whereby the Bank account of the
petitioners have been made frozen with instructions to the lead
Bank to stop permitting operations until permission of the
respondent Collector. The petitioners also sought quashing of
the letter as contained in Memo no. 181 dated 17.03.2018, as
also other identical letters, whereby the differential amount of
compensation has been demanded from the petitioners. The
Patna High Court CWJC No.6863 of 2018 dt. 29-11-2024
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petitioners further sought a declaration that once the whole
mechanism and process of acquisition of land right since
preliminary notice published under Section 11 of the Act till
payment of compensation pursuant to finality of award under
Section 37 of the Act has been completed, no provisions of the
Act confers any jurisdiction and authority upon the respondent
Collector or the respondent no.4 to reopen the award by
disputing the parameters and the basis leading to such finality of
land acquisition proceeding.
4. Before adjudicating the legality of the impugned
action of the respondents leading to issuance of impugned
orders, the facts, which are relevant in the matters, to be noted
hereinbelow:
5. A total 456.01.200 acres of land from 64 villages
falling under four Anchals viz Narpatganj, Forbesganj,
Kurshakanta and Sikta were intended to be acquired by the State
Government for constructing Indo-Nepal Border Road. The
necessity and requirement expressed by the Road Construction
Department for construction of aforenoted road, the land owned
by the petitioners and other similar such landowners were
proposed to be acquired by way of notification No. 639 dated
11.05.2016 issued under Section 11(1) of the Act, 2013,
Patna High Court CWJC No.6863 of 2018 dt. 29-11-2024
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published in the official gazette as well as in newspapers. On
12.05.2016, the respondents published another notification
under Section 19(1) of the Act, 2013 regarding declaration and
summary of rehabilitation and resettlement as prescribed in law
for the land proposed to be acquired.
6. It is stated that in course of acquisition of the land
of the petitioners, the respondent District Land Acquisition
Officer, Araria called upon the petitioners to furnish the
particulars of land, documents of title, details of interest in the
said land, land possession certificate, rent payment receipts etc.
The petitioners submitted the copies of the respective title
deed/sale deed of the land, rent payment receipts and land
possession certificate before the respondent District Land
Acquisition Officer and also executed an affidavit as required by
the said authority. Having completed all the paraphernalia, the
respondent District Land Acquisition Officer took possession of
the land of the petitioners, before the publication of final award.
However, subsequent thereto, the petitioners received payment
of compensation and solatium on different dates. The land(s) so
acquired were handed over to the concerned agency after
awarding contracts for construction of roads and finally roads
have been constructed on almost all such acquired land and it is
Patna High Court CWJC No.6863 of 2018 dt. 29-11-2024
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in public use for the present and thus the purpose, for which the
lands have been acquired, have already been served and the
whole project of acquisition has been finalized.
7. All of a sudden in the month of August, 2017, the
petitioners learnt from their respective Banks that their accounts
existing in the said Bank has been rendered frozen at the
instance of the respondent District Land Acquisition Officer.
The petitioners learnt from the contents of the letter that for
undisclosed reasons, their Bank accounts had been subjected to
stop operation until permission of the Collector. The petitioners
received a letter bearing memo No. 459 dated 28.07.2017 by the
respondent District Land Acquisition Officer whereby it was
intimated that complaints were received from which it was
inferred that in collusion with the requisitioning department, the
nature of lands belonging to the petitioners were got converted.
The issue was enquired by a team constituted for that purpose
and the enquiry concluded that the aforesaid lands belonging to
the petitioners happened to be agricultural in nature. By the
aforesaid letter, the petitioners were asked to appear before the
respondent Collector for hearing in the matter. The petitioners in
some of the cases ensured their appearance and submitted reply.
However, in the submission of the petitioners, no further
Patna High Court CWJC No.6863 of 2018 dt. 29-11-2024
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information was made by any of the respondents and all of a
sudden, the petitioners received a letter bearing Memo No. 181
dated 17.03.2018 issued by the respondent District Land
Acquisition Officer whereby the petitioners have been called
upon to repay the differential amount of compensation on
account of alleged excess compensation received by them,
which were held recoverable in course of enquiry conducted by
six men committee. As per the letter aforenoted, the lands of the
petitioners were found to be agricultural whereas they have
received compensation for the said land being residential in
nature.
8. Mr. Gautam Kumar Kejriwal, learned Advocate for
the petitioner in C.W.J.C. No. 6863 of 2018, while assailing the
impugned action of the respondent authorities and the
consequential impugned orders has firstly taken this Court
through all the relevant provisions of Act, 2013. It is contended
that Section 11 of the Act deals with the preliminary notification
for requirement of land acquisition and the said provision itself
empowers the land acquisition authority to determine that
category of land sought to be acquired. The preliminary
notification dated 11.05.2016 issued under Section 11 of the
Act, 2013 itself speaks of the land under acquisition being
Patna High Court CWJC No.6863 of 2018 dt. 29-11-2024
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residential in nature. The respondents having themselves
notified the land of the petitioners as residential and determined
the compensation accordingly and paid the same to the
petitioners could not retract from their stand and revise their
understanding and decision about the category of land. Further
Section 11(5) of the Act obliges the respondents to update the
land records within two months of such notification. Section 12
of the act authorizes the respondents to conduct a preliminary
survey of the lands to be acquired by authorized officer of the
Government. Section 15 of the Act, 2013 deals with requiring
inviting objections from the interested persons with respect to
the land sought to be acquired. A perusal of Section 15 of the
Act, 2013 would show that complaints or objections of such
persons could be entertained only at that stage which falls in the
interregnum of notification under Section 11 and the notification
under Section 19 of the Act, 2013 and not after completion of
the process of payment of compensation and physical
possession taken of the land sought to be acquired.
9. Learned Advocate for the petitioners contended
that, in the case in hand, the so called complaints made by the
busybody has been entertained after the compensation was
determined and paid to the petitioners. Section 16 of the Act,
Patna High Court CWJC No.6863 of 2018 dt. 29-11-2024
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2013 talks about another survey by the Administrator for
rehabilitation and resettlement, which is an another round of
verification of the nature, category, use and other important
aspects associated to the land sought to be acquired. Likewise,
Section 17 further requires the respondent Collector to make a
review of the draft scheme prepared under Section 16(6) of the
Act, 2013 for the purpose of rehabilitation and resettlement of
the affected families. Section 20 is said to be an important
provision of law, which requires marking, measurement and
planning of the land sought to be acquired by the respondents.
Thus it is contended that while marking, measurement and
planning of the land sought to be acquired, it is not possible that
the nature of land as to whether it is residential or agricultural
would escape the attention of the land acquisition authorities.
10. Section 21 of the Act, 2013 further deals with the
statutory provision for notification inviting claims for
compensation and interest. No complaint was made by the so-
called complainant/busybody as regards the nature of land of the
petitioners. One another important provision have been read
over and explained over this Court that the evaluation of the
land sought to be acquired is to be done by the collector in terms
of Section 26 of the Act, 2013. As per the said provision, while
Patna High Court CWJC No.6863 of 2018 dt. 29-11-2024
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determining the market value of the land, the collector has to
take into consideration the market value, as specified in terms of
the Indian Stamp Act, 1899 for the purpose of registration of
sale deeds or agreement to sell, as the case may be in the area
where the land is situated. Secondly, the average sale price of
similar type of land situated in the nearest village, near vicinity
area has to be considered. Thirdly, the date of determination of
market value shall be the date on which the preliminary
notification under Section 11 of the Act, 2013 is issued by the
Collector.
11. Drawing the attention of all the aforenoted
prescriptions, learned Advocate for the petitioners vigorously
contended that altogether 7-8 stages have been provided when
the respondent could have verified the true nature of the land
before determination of the compensation payable to the
petitioners. In no stretch of imagination, it is believed that all
through the process of determination of market value of the land
by the Collector, the nature of land, in question, would have
been ignored.
12. Mr. Kejriwal, learned Advocate further urged
before this Court that in case of difference of opinion on the
point of nature of the land sought to be acquired, such dispute is
Patna High Court CWJC No.6863 of 2018 dt. 29-11-2024
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always amenable to the jurisdiction of the Land Acquisition,
Rehabilitation and Resettlement Authority, which consists of
sufficient mechanism available for redressal of grievance of any
of the parties to a land acquisition proceeding. Therefore, even
if the Collector and other Land Acquisition Authorities opined
that the true nature of the land under acquisition was wrongly
determined or there existed a confusion, the best remedy was
available to take recourse to the statement of reference to the
said authority constituted under Section 51 of the Act, 2013. In
the entire Act of 2013, there is no provision and power to the
Collector to review any of the functions and exercise completed
in course of land acquisition proceeding. Once the Collector
having completed the process of determination of market value
of the land under acquisition and compensation payable to the
land owners, which is finally paid, he becomes functus officio
for all purposes and cannot give a relook to any of the process
already concluded even if the same suffers from illegality,
confusion or violation of any provision.
13. In order to fortify the aforesaid contention,
reliance has also been placed on decisions rendered by the
Hon’ble Supreme Court in the Case of Kalabharti Advertising
Vs. Hemant Vimalnath Narichania & Ors., reported in (2010)
Patna High Court CWJC No.6863 of 2018 dt. 29-11-2024
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9 SCC 437 and further in the case of Bankatlal Vs. Special
Land Acquisition Officer, reported in (2014) 15 SCC 116.
14. It is next contended that there is no provision in
the Act, 2013, which empowers the Land Acquisition Officer
much less the Collector to recover the alleged excess of
compensation paid to a land owner by attachment of their Bank
accounts. The action of attachment of the Bank accounts of the
petitioners is wholly without jurisdiction, as there is absence of
any such law.
15. Mr. Kejriwal, challenging the constitution of Six
Men Committee and its report submitted that there is no
provision under the Act, 2013, which empowers the Collector or
any other authority to constitute the so-called Six Men
Committee and make an enquiry into any such stray complaint
made by any person and thus the very basis of the decision of
the Collector being the enquiry report submitted by Six Men
committee is wholly without jurisdiction and has got no sanctity
in the eye of law.
16. Summarizing the submissions, learned Advocate
for the petitioners also contended that the respondents have
undertaken an exercise, which is not authorized in terms of the
Statute and in fact the manner in which they moved is contrary
Patna High Court CWJC No.6863 of 2018 dt. 29-11-2024
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to the scheme of the Act, hence the action of the respondents is
in violation of the principles of law held in Maxim “Expressio
Unius Est Exclusio Alterius”, which prescribes the procedure
prescribed in law for a particular process/act exclude any of the
procedure. To support the aforesaid principle, reliance is placed
on the decision of the Hon’ble Supreme Court in the case of N.
Padmamma Vs. S. Ramakrishna Reddy & Ors., reported in
(2008) 15 SCC 517; and the State of Jharkhand Vs. Ambay
Cements & Anr. reported in (2005) 1 SCC 368.
17. Mr. Sharda Nand Mishra, learned Advocate
appearing for another set of petitioners in C.W.J.C. No. 6876 of
2017 and another analogous cases, reiterated the aforenoted
contention; and has further drawn the attention of this Court to
the notification issued under Section 11 of the Act, 2013 dated
11.05.2016 as well as notification issued under Section 19 of the
Act, 2013 dated 12.05.2016 and contended that there is no
dispute that the nature of the land of the petitioners was
determined as residential after following all the due procedure
for acquisition, which also got approval from the State
Government and thereafter payment has been made to the
petitioners. However, in some of the cases only 80% of the
compensation amount has been paid and the rest of the amount
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are yet to be paid, though the lands of the petitioners have been
acquired in the year 2016. Mr. Mishra also contended that
Section 33 of the Act, 2013 clearly prescribes that the Collector
has no jurisdiction to correct the award latter than six months of
the award. Once the entire process of acquisition has been
completed, the Collector has no authority to review its own
decision and reopen the entire proceeding afresh.
18. Mr. Amar Nath Singh, learned Advocate
representing the petitioner in C.W.J.C. No. 15091 of 2017 has
submitted that there is no provision for constitution of Six Men
Committee once the compensation paid and approved by the
State Government. There is neither any notice to the land
holders; or opportunity provided, the copy of report of the Six
Men Committee has never been handed over to any of the
aggrieved person. Moreover, the collector has not given any
finding as to how the earlier report suggesting the nature of the
land as residential was bad, if any party has had any grievance,
he can move before the Land Acquisition, Rehabilitation and
Resettlement Authority, then why not the Collector; he may also
refer the matter to LARRA. Reliance has also been placed on a
decision rendered by this Court in the case of Dhan Jee Pandey
@ Gauri Shankar Pandey Vs. The Union of India & Ors.,
Patna High Court CWJC No.6863 of 2018 dt. 29-11-2024
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reported in 2023 (3) PLJR 773.
19. On the other hand, The State is represented by
Md. Khurshid Alam, learned AAG-12, Mr. Dhurjati Kumar
Prasad and Mr. Sajid Salim Khan, learned Government
Pleaders.
20. The learned Advocates for the State countering the
afornoted submissions primarily contended that the land(s) in
question, were acquired for constructing Indo-Nepal Border
Road under the Emergency provision of Section 40 of the Act,
2013. Sub Section 4 of Section 40 clearly stipulates that “in the
case of any land to which, in the opinion of the appropriate
Government, the provisions of sub-section (1), sub-section (2)
or sub-section (3) are applicable, the appropriate Government
may direct that any or all of the provisions of Chapter II to
Chapter VI shall not apply, and, if it does so direct, a declaration
may be made under section 19 in respect of the land at any time
after the date of the publication of the preliminary notification
under sub-section (1)of section 11 of the Act.
21. In the case in hand soon after the notification
issued under Section 11(1) of the Act, 2013, the notification
under Section 19(1) of the Act, 2013 has also been issued on
12.05.2016 itself. The aforenoted notifications made it clear that
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since the acquisition proceeding has initiated under the
Emergency provision of Section 40 of the Act, 2013 no
provisions for social impact assessment study provided under
Section 4 and the provisions of hearing of objections under
Section 15 of the Act, 2013 shall be applicable.
22. It is the contention of the learned Advocate for the
State that on the basis of the submission of the land
measurement report by the Anchal Amin as well as on
Jamabandi report of Narpatganj, an estimate was prepared and
the petitioners have been paid the estimated compensation in
two installments. However, it has been informed that till date,
the award has not been approved as yet. On receipt of various
complaints from all corners regarding the nature of the land, the
Collector, Araria ordered to enquire into the matter vide letter
no. 1937 dated 24.07.2017. In response thereto, the District
Land Acquisition Officer, Araria submitted a report that the land
was found as agricultural. In the aforesaid premise, the
Collector, Araria directed to enquire the dispute by setting up
Six Men Committee consisting of Additional District
Magistrate, Deputy Development Commissioner, District Sub-
Registrar, District Land Acquisition Officer, Executive Engineer
(RCD) vide letter no. 473 dated 05.08.2017. The Six Men
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Enquiry Committee after thorough enquiry found the land, in
question, as agricultural. Taking note of the report of the Six
Men Committee under consideration, the Collector, Araria
issued notice to the petitioners and passed summary order to
treat this land as Agricultural. Thus, the contention of the
petitioners that no notice or any opportunity was given is not
sustainable. The petitioners in almost all the cases either
appeared personally or filed their reply and thereafter the
impugned orders have been passed. The learned Advocate for
the State also contended that on account of the misconduct
committed by the then Executive Engineer (RCD) and District
Land Acquisition Officer, recommendations have also been
made for disciplinary proceeding against them after framing of
the Memo of Charge. In the light of the aforesaid facts, the
respondent no.4 issued notice directing the petitioners to deposit
deferential amount, which are paid in excess.
23. With respect to the submissions that the Bank
accounts of the petitioners have been frozen without there being
any authority, it is contended that operation of the Bank
accounts was restricted only to the extent of amount paid in lieu
of compensation, against their respective lands, which later on
found to be erroneous. It is next contended that the entire
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exercise for determination of the nature of the land has been
proceeded in terms of the letter issued by the Government of
Bihar in the Department of Revenue and Land Reforms, as
contained in Memo No. 150 dated 15.02.2018, the copy of
which has been placed on record and marked as Annexure-E
Series to the counter affidavit filed on behalf of respondent nos.
3 and 4. The learned Government Advocates, while summing up
their arguments, uniformly contended that neither any chit of
paper nor any averment has been made that the lands, in
question, are residential land. Since the award has not been
approved till date, the Collector being the competent authority
had the jurisdiction to rectify the mistake, if a mistake is
committed in passing an administrative order, the same may be
rectified. In order to substantiate such contention reliance has
also been placed on a decision of the Hon’ble Supreme Court in
the case of Union of India and Ors. vs Bikash Kuanar,
reported in (2006) 8 SCC 192 wherein the Hon’ble Supreme
Court held that “it is now trite that if a mistake is committed in
passing an administrative order, the same may be rectified.
Rectification of a mistake, however, may in a given situation
require compliance of the principles of natural justice. It is only
in a case where the mistake is apparent on the face of the
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records, a rectification thereof is permissible without giving any
hearing to the aggrieved party.”
24. This Court has given anxious consideration to the
submissions advanced on behalf of the learned Advocates for
the respective parties and also meticulously perused the
materials available on record.
25. Undisputedly the land, in question, was acquired
from the Raiyats/petitioners for constructing road over Indo-
Nepal Border under the Emergency Provision of Section 40 of
the Act, 2013. Section 40 of the Act, 2013 deals with the Special
powers in case of urgency to acquire land in certain cases.
26. Section 40 (1) clearly stipulates that in cases of
urgency, whenever the appropriate Government so directs, the
Collector, though no such award has been made, may, on the
expiration of thirty days from the publication of the notice
mentioned in section 21, take possession of any land needed for
a public purpose.
27. Sub-Section 3 of Section 40 makes it clear that
before taking possession of any land under sub-section (1) or
sub-section (2), the Collector shall tender payment of eighty per
cent of the compensation for such land as estimated by him to
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the person interested entitled thereto.
28. Sub-Section 4 of Section 40, which would be
relevant in the present matter needs to be quoted hereinbelow:
“(4) In the case of any
land to which, in the opinion of the
appropriate Government, the
provisions of sub-section (1), sub-
section (2) or sub-section (3)are
applicable, the appropriate
Government may direct that any or
all of the provisions of Chapter II to
Chapter VI shall not apply, and, if it
does so direct, a declaration may be
made under section 19 in respect of
the land at any time after the date of
the publication of the preliminary
notification under sub-section (1)of
section 11.”
29. Bare reading of the aforesaid provision, it is
explicit that the appropriate Government is empowered to direct
that any or all of the provisions of Chapter II to Chapter VI shall
not apply, and, if it does so direct that a declaration made under
section 19 in respect of the land at any time after the date of the
publication of the preliminary notification. The initial payment
of compensation is only based upon estimation done by the
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Collector.
30. Admittedly after issuance of notification under
Section 11(1) of the Act, 2013 immediately further notification
under Section 19(1) of the Act, 2013 as contemplated to invoke
the Emergency provisions under Section 40 of the Act, 2013 has
been issued on 12.05.2016.
31. From cumulative reading of both the notifications
issued under Section 11(1) and Section 19(1) of the Act, 2013, it
is axiomatic that the land, in question, is acquired under the
Emergency Provision of Section 40 of the Act, 2013 and thus
the social impact assessment study provided under Section 4
and the provisions of hearing of objections under Section 15 of
the Act, 2013 shall not be applicable; in as much as the
compensation paid by the Collector was based upon estimation.
Thus any acquisition proceeding commenced under Section 40
of the Act, 2013 excludes the provision of Chapter II to Chapter
VI, if otherwise it is directed under Section 19 of the Act, 2013.
32. In view of the aforesaid facts, the submission of
the learned Advocates for the petitioners to the effect that at all
the stages, as discussed above, the nature of land as to whether it
is residential or agricultural have brought to the attention of the
acquisition authority and such an important aspect would not
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have been eluded the attention of the authorities while carrying
out such an exercise with ground level, in the opinion of this
Court does not stand substantiated.
33. It is noteworthy that the Government of Bihar in
the Department of Revenue and Land Reforms vide its letter
contained in Memo No. 450 dated 12.04.2017 and further in
Memo No. 150 dated 15.02.2018, brought on record by way of
counter affidavit, issued under the signature of Principal
Secretary of the concerned Department communicated to all the
Collectors of the State of Bihar in public interest that to resolve
the dispute with regard to acquisition of the land and its nature,
category or the rate, a committee was required to be constituted
under the Chairmanship of the District Magistrate. Accordingly,
the Government of Bihar took a decision to constitute a Six Men
Committee consisting of District Magistrate, Additional
Collector-cum Rehabilitation and Resettlement Officer, District
Land Acquisition Officer, District Sub-Registrar, Representative
of Requisitioning Authority, Deputy Development
Commissioner-cum-Chief Executive Officer. The aforenoted
letter also made it clear that after publication of notification
under Section 19(1) of the Act, 2013 and before issuance of
notice upon the affected land holders/raiyats, there shall be a
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proper inspection of the notified land and thereupon the rate of
the land shall be determined.
34. In Rai Sahib Ram Jawaya Kapur and Ors.
Vs. The State of Punjab, reported in AIR 1955 SC 549, the
Hon’ble Supreme Court held that ordinarily the executive power
connotes the residue of governmental functions that remain after
legislative and judicial functions are taken away. The executive
Government, however, can never go against the provisions of
the Constitution or of any law. The executive function
comprises both the determination of the policy as well as
carrying it into execution.
35. In the case of J & K Public Service Commission
vs. Narinder Mohan (Dr), reported in (1994) 2 SCC 630, the
Hon’ble Supreme Court observed that the executive power
could be exercised only to fill in the gaps but the instructions
cannot and should not supplant the law, but only supplement the
law. Accordingly exercising of Executive power cannot be in
contravention of the Constitution or any other law.
36. While executive power is circumscribed by the
limits imposed by the Constitution, and by any other law, this
does not imply that executive power can be exercised only when
there is a law already in existence. The executive’s powers are
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not restricted solely to carrying out the laws passed by
Parliament. It includes other functions such as supervising
general administration, formulation, and execution of policy,
etc.
37. The Hon’ble Supreme Court has also consistently
held that such clarificatory circulars cannot amend or substitute
principal legislation. But if the principal legislation made
thereunder is silent, then the Government can issue
clarifications to supplement principal legislation by issuing
instructions.
38. In the case in hand, the notification under Sections
11(1) and 19(1) of the Act, 2013 have been issued on
11.05.2016 and 12.05.2016 before issuance of the aforenoted
letters, nonetheless the modalities as contemplated there, in the
letters of the State Government is not in any manner contrary to
the prescriptions as provided under the Act, 2013.
39. It is axiomatic that an administrative decision
which is not based on a dispute between the two parties and
which is not rendered after hearing the parties, does not operate
as res judicata. The party affected by it as also the authority
making the decision are amenable to review the same. The
interests of fairness to individuals whose interests will otherwise
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be directly and prejudicially affected may lead the Courts to
attribute binding effect to administrative acts and decisions
which the competent authority wishes to repudiate or rescind.
Indeed, it would seem that the legal competence of
administrative bodies to rescind their decisions depends at least
as much on considerations of equity and public policy as on
conceptual classification (Prof. S.A.De Smith in his “Judicial
Review of Administrative Action”, 3rd Edn.).
40. Any administrative decision, there is no legal
obligation upon the person charged with the duty of reaching the
decision to consider and weigh submissions and arguments or to
collate any evidence, to solve any issue. The grounds upon
which he acts, and the means which he takes to inform himself
before acting, are left entirely to his discretion. Subsequently,
not only administrative action, but also administrative decision
can be reviewed to redress injustice caused thereby. It is implicit
in this principle that in redressing injustice to one injustice
should not be caused to someother.
41. The law is well settled that any amount
paid/received without the authority of law can always be
recovered barring exceptions of extreme hardships or prohibited
under any Statute/ Rules, but not as a matter of right. In such
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situation, law implies an obligation on the payee to repay the
money, otherwise it would amount to unjust enrichment. The
Hon’ble Supreme Court on various occasions held that the
excess payment of public money which is often described as
“tax payers money” belongs neither to the officers who have
effected over-payment nor that of the recipients. Possibly,
effecting excess payment of public money by officers, may be
due to various reasons like negligence, carelessness, collusion,
favouritism etc. because money in such situation does not
belong to the payer or the payee. Payments are being effected in
many situations without any authority of law and payments have
been received by the recipients also without any authority of
law. This Court is also not unmindful of the fact that the land of
the petitioners have been acquired by the State Government in
terms of the prescription of Act, 2013 and thus they should be
compensated adequately in commensurate with the valuation of
the land. In case, the land holders get less payment against the
value of their acquired land, it would be certainly transgress the
statutory and constitutional right to property as mandated under
Article 300A of the Constitution, but once they receive excess
payment to the value of their land, it would certainly amount to
unjust enrichment.
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42. In view of the above, this Court does not find any
error in the action of the respondents in determining the nature
of the land and its rate, if the same was found to be unjust, all
the more, the Government is entitled to review an administrative
decision, if the same is unjust and contrary to law; that too, in
the case in hand, when the process of acquisition is yet to be
finalized by preparation and approval of the award under
Section 37 of the Act, 2013.
43. This Court does not find that it is a case where the
Collector has reviewed his order; on the contrary, the process
has never been completed inasmuch as award has never been
prepared and approved. The compensation paid to the
petitioners were only based upon estimation; Later on having
apprised and acquainted with the mistake committed by the
Land Acquisition Officer and the other responsible authorities,
the same has been rectified by constituting a Six Men
Committee and action has been taken against the erring
officials.
45. So far the contention of the petitioners that in case
of difference of opinion on the point of nature of the land, such
dispute is always amenable to Land Acquisition, Rehabilitation
and Resettlement Authority (hereinafter referred to as ‘the
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LARRA’) is concerned the same does not find any substance in
the facts of this case. The Act, 2013, especially Section 51 of
the Act provided a forum i.e. LARRA to adjudicate the disputes
relating to acquisition of land, compensation payable and the
preparation of compensation of which interested persons have
made different claim. If there would have been any dispute with
regard to the determination of the nature of the land, such a
dispute may be referred to the jurisdiction of the said authority
having sufficient mechanism available for redressal of grievance
of any of the parties to a land acquisition proceeding, which
might have arisen in relation to any issue associated with such
proceeding.
46. There is no dispute that if the Collector comes to
the conclusion that the lands, in question, are agricultural, but
the compensation has been paid by treating it as residential, in
such circumstances, the aggrieved party was supposed to take
recourse to the remedy available, as provided under Section 64
of the Act, 2013 by getting the matter referred to the said
authority, only if there is an award and parties are aggrieved and
not accepted the award.
47. Section 64 contemplates under the Act, 2013
empowering the Collector to refer the dispute to the Authority, if
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any person interested, who has not accepted the award may by
written application require that the matter be referred for
determination of the Authority, whether his objection be to the
measurement of the land, the amount of the compensation, the
person to whom it is payable or the apportionment of the
compensation. Section 64 (2) of the Act, 2013 mandates that the
application shall state the grounds on which objection to the
award is taken, provided that such application shall be filed
within six weeks from the date of the Collector’s award; and in
other cases, within six weeks of the receipt of the notice from
the Collector under section 21, or within six months from the
date of the Collector’s award, whichever period shall first
expire.
48. Perusal of the prescriptions as contemplated under
Section 64 of the Act, 2013, clearly indicates that to invoke this
provision it is absolutely necessary to challenge the award, if
any person interested has not accepted the award. In the case in
hand, it is the admitted position that award has not even been
approved till date.
49. Reliance of the petitioner on a decision of this
Court in the case of Dhan Jee Pandey (supra) has no
application in the case in hand as that was the case where land
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was acquired under the National Highway Authority Act, 1956,
which is a self contained code and, moreover, there was already
an award passed by the competent authority, but later on a
decision has been taken by the State to get the excess amount
refunded, which had already been paid, on account of having
found the nature of the land agriculture instead of residential.
50. This Court has also gone through the materials on
record and found that before reassessment/determination of the
land, in question, the land owners have been noticed and many
of them filed their response, thus, the contention of the
petitioners’ that no notice or any opportunity was given prior to
determination of land also does not get supported form the
record.
51. In view of the aforesaid facts, circumstances and
the position in law, this Court does not find any merit in this
batch of the writ petitions. Let the award may be passed within a
period of three months, if not passed till date after completing
all the formalities. Suffice it to observe that the petitioners
would have the liberty to assail the same in accordance with
prescription, as provided under the Act, 2013, if any person
interested has not accepted it.
52. Now coming to the legality of the impugned
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action of the respondent Collector to the extent whereby, apart
from directing the petitioners to ensure the payment of
deferential amount of compensation; for the said purpose has
frozen the Bank accounts of the petitioners, this procedure is
apart from illegal and arbitrary, do not have any sanction of law.
Thus this Court deprecate such action. However, the respondent
authorities shall be at liberty to recover the differential amount
by taking recourse of Public Demand Recovery Act, 1914 or
through any other Act, in accordance with law, after finalization
of the award, but without any interest accrued thereupon, as the
petitioners were never at fault.
53. All the writ petitions stand dismissed with the
aforesaid observation.
(Harish Kumar, J)
uday/-
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