Hon'ble Mahesh Chandra Tripathi,J.
1. Heard learned counsel for the petitioner and learned counsel for the respondents.
2. Present petition under Art. 226 of the Constitution of India has been preferred feeling aggrieved with the rejection of the application, moved by the petitioner under Section 48 of the Land Acquisition Act (in short, Act). A copy of the impugned order dated 3.6.2013 is annexed as Annexure No.1 to the writ petition.
3. A notification under section 4(1) read with Section 17 was issued by the government for acquisition of land in question with regard to Anand Vihar Residential Housing Scheme through Hapur-Pilkhua Development Authority. The notification was issued on 24.11.2005 and published in two newspapers on 25.11.2005 followed by corrigendum on 2.6.2006. Notification under Section 6(1) read with Section 17 was issued on 13.7.2006 with due publication in two newspapers, i.e. Dainik Zagran and Amar Uzala. According to the record, the possession was taken over on 11.7.2008 by making necessary entry in the relevant record. The petitioner possessed an agriculture industry in the name and title of M/s. Dhan Shree Agro Comp., Delhi Road, Hapur. According to the petitioner's counsel, since the actual possession was not taken, he moved an application under Section 48 of the Act. Feeling aggrieved with inaction on the part of the competent authority, he filed a writ petition No.19507 of 2012 which was decided by this Court directing the respondents to decide the application moved by the petitioner under Section 48 of the Act. In pursuance to the order, passed by this Court, by the impugned order dated 3.6.2013, the application moved by the petitioner has been rejected with the finding that the possession of the land in dispute, i.e khasa No.501 was taken by the Additional District Magistrate, (Irrigation), Land Revenue, Ghaziabad on 11.7.2008 and transferred to Hapur Pilkhua Development Authority. The compensation has been deposited in the office of the Additional District Magistrate. It is the part and partial of Anand Vihar Housing Project. It is also recorded in the impugned order that the notification under Sections 4 and 6 was issued in 2005 and 2006 and possession has been delivered to Housing Development Authority in 2008.
4. It has been submitted by the learned counsel for the respondents that the statutory award has already been delivered on 13.12.2013, i.e. after the filing of the present writ petition.
5. While assailing the impugned order, it is submitted by the petitioner's counsel that the order itself contains factual position that though the possession on paper has been delivered to the Development Authority but it contains the petitioner's factory relating to agriculture, tin shed, rooms, a hall, various trees, etc. The impugned order itself shows that the petitioner is in possession of the land in question. Operative portion of the impugned order is reproduced as under:
iz'uxr izdj.k esa vij ftykf/kdkjh Hkw&v/;kfIr flapkbZ }kjk miyC/k djk;h x;h v+|ru fLFkfr fol;d lwpuk fnukad 19&03&2013 esa mfYyf[kr rF;ksa ftlesa iz'uxr izkf/kdj.k dh vkuUn fogkj vkoklh; ;kstuk gsrq fd;k x;k gS] ftldh /kk jk&4¼1½@17 dh foKfIr fnukad 24&11&05 o /kkjk& 6¼1½@17 dh foKfIr fnukad 13&7&06 esa tkjh gksus ij Hkw&vtZu dh leLr vkSipkfjdrk,a iw.kZ gksus ds i'pkr fnukad 11&07&08 esa mDr Hkwfe dk vtZu fudk; dks dCtk gLrxr fd;k tk pqdk gS A ekSds ij ,d QSDV`h ,xzhdYpj dh ftlesa 1 gky e; ysUVj ds] 1 dejk ,oa 1 Vhu 'SM dk gky] 3 lkxkSu] 3 vke] 2 ve:n] 3 ikiqyj] 2 uhe] 2 cdkan gS] ekSds ij lEcfU/kr Hkw&Lokeh dkfct gS A jktLo vfHkys[ksak esa o'kZ 1974 ij mDr uEcj ij vkcknh ntZ pyh vk jgh gS A bl ;kstuk esa djkj fu;ekoyh] 1997 ds varxZr izHkkfor Hkw&Lokfe;ksa dks izfrdj Hkqxrku fd;k tk jgk gS] ijUrq buds }kjk djkj i= ugh Hkjus ij izfrdj Hkqxrku ugha fd;k x;k gS A iz'uxr izdj.k esa vHkh vfHkfu.kZ; ?kksf"kr ugha gqvk gS A
6. The survey report filed with the counter affidavit also contains that the petitioner is in possession of the land in question over Khasra plot No.501. Keeping in view the admitted fact on record, there appears to be no room of doubt that the petitioner is in possession of the land which has been acquired for the purpose of Anand Vihar Housing Project. It is also borne out from the record that till date, the Development Authority has not acquired the land in question for their own project. However, the transfer and incident of possession has taken place, is only on paper. The petitioner's counsel has relied upon certain cases. It shall be worthwhile to consider those cases.
7. In a case reported in 2009(1) UPLBEC 45 Dharam Pal versus State of Haryana, their Lordships of Hon'ble Supreme Court while dealing with actual delivery of possession made following observations :
"6. We expect that as far as possible, the respondents shall try to retain the structures, unless it becomes difficult for them to have a planned development without removing them in view of what is stated above.
7. The above directions will be applicable only to such of the cases where the residential structures are made prior to the issuance of Section 4(1) notification and the appellant is actually residing there. However, in case of any dispute as to whether the structures were made prior to Section 4(1) notification or later, the Secretary, Urban Estates Department shall determine that question after affording opportunities to both the parties, uninfluenced by observations made in the impugned orders of the High Court."
8. In a case reported in 2012(6) Supreme 322 Patasi Devi versus State of Haryana and others, their Lordships of Hon'ble Supreme Court have considered as to how and under what manner the delivery of possession should be ascertained. For convenience, paras 9 to 11 are reproduced as under :
"9. In Banda Development Authority, Banda v. Moti Lal Agarwal (2011) 5 SCC 394, this Court considered as to what should be the mode of taking possession of the land acquired under the Act, referred to the judgments in Balwant Narayan Bhagde v. M.D. Bhagwat (1976) 1 SCC 700, Balmokand Khatri Educational and Industrial Trust v. State of Punjab (1996) 4 SCC 212 , P.K. Kalburqi v. State of Karnataka (2005) 12 SCC 489, NTPC Ltd. v. Mahesh Dutta (2009) 8 SCC 339, Sita Ram Bhandar Society v. Govt. of NCT of Delhi (2009) 10 SCC 501, Brij Pal Bhargava v. State of UP (2011)5 SCC 413 and culled out the following principles:
"i) No hard and fast rule can be laid down as to what act would constitute taking of possession of the acquired land.
ii) If the acquired land is vacant, the act of the concerned State authority to go to the spot and prepare a panchnama will ordinarily be treated as sufficient to constitute taking of possession.
iii) If crop is standing on the acquired land or building/structure exists, mere going on the spot by the concerned authority will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the concerned authority will have to give notice to the occupier of the building/structure or the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchnama. Of course, refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken.
iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures on such document.
v) If beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3A) and substantial portion of the acquired land has been utilised in furtherance of the particular public purpose, then the Court may reasonably presume that possession of the acquired land has been taken."
10. In Prahlad Singh v. Union of India (2011) 5 SCC 386, the Court considered as to when the acquired land can be treated to have vested in the State, referred to various judgments on the issue of taking of possession including the judgment in Banda Development Authority, Banda (supra) and observed:
"If the present case is examined in the light of the facts which have been brought on record and the principles laid down in the judgment in Banda Development Authority case it is not possible to sustain the finding and conclusion recorded by the High Court that the acquired land had vested in the State Government because the actual and physical possession of the acquired land always remained with the appellants and no evidence has been produced by the respondents to show that possession was taken by preparing a panchnama in the presence of independent witnesses and their signatures were obtained on the panchnama."
11. At the cost of repetition, we consider it necessary to observe that in the present case no evidence was produced by the official respondents before the High Court to show that possession of the appellant's land and the house constructed over it had been taken by the competent authority between 9.12.2009, i.e., the date on which the award was passed and 20.1.2010, i.e., the date on which the writ petition was filed before the High Court. Indeed, it was not even the pleaded case of the official respondents that the house constructed by the appellant was lying vacant on the date of award and some official had put lock over it evidencing the taking over of possession."
9. While passing the interim order, a Division Bench of this Court has relied upon an earlier judgment reported in (2011)5 SCC 394 Banda Development Authority, Banda versus Moti Lal Agarwal and others. In the said case, Hon'ble Supreme Court has considered as to in what manner a possession should be delivered to the Development Authority. Accordingly, in case the actual possession is not delivered or handed over to the Development Authority, then the citizens may be entitled for the benefit of the Section 48 of the Land Revenue Act.
10. From the factual matrix on record as well as the admitted facts, there appears to be no room of doubt that the petitioner is still enjoying the possession of the property in question which is situated over the road side and whatsoever possession has taken place, that is merely on paper.
11. From the contents of the counter affidavit as well as the pleading on record, it appears that neither any notice was sent to the petitioner to deliver the possession of the property in question nor any panchnama was prepared as required by Banda Development Authority, followed by Patasi Devi ((supra)) in spite of the fact that admittedly, the agricultural factory is still running along with infrastructure. Thus, in view of the judgment of Supreme Court (supra), in no circumstances, it may be assumed that the possession of the property in question has been delivered to State or its instrumentality.
12. It shall be relevant to mention that an award has been rendered by the competent authority on 13.12.2013, that too after filing of the present writ petition and subsequent to the interim order dated 9.7.2013, passed by a Division Bench of this Court.
13. The factual matrix on record shows that the respondents while filing counter affidavit have not approached this Court with clean hand and tried to hush up the matter with passing of the award though an interim order was passed. Accordingly, we are of the view that the petitioner holds the possession of the property and he may be entitled for the benefit of Sub Section (1) of Section 48 of the Act, that too when admittedly, the petitioner has not received any compensation from the respondents. Even if the property in question over which the industry has been established and running for almost 48 years is excluded from the Anand Vihar Housing Project, it shall not make any difference being situated on one side, i.e. Hapur-Pilkhua Road.
14. In view of above, it appears that while issuing the impugned office memorandum dated 3.6.2013, the government has been failed to exercise jurisdiction vested in it. The government has not discharged its obligation keeping in view true letter and spirit of Section 48 of the Act as well as in the light of the pronouncements of the Supreme Court (supra). It is also an instance of non-application of mind to the actual fact and ground realities.
15. While recording a finding that the petitioner is in possession of the property in question and the industry is running over it, it is not understandable that how simultaneously, the government has rejected the representation submitted by the petitioner, that too with a finding that the application is disposed of.
16. The government should be decisive in its orders and categorical decision should have been taken by the government with regard to release of the property in question under Section 48 with other follow-up action. Such decision on the part of the government compels the citizens to approach this Court again and again for the same cause of action. An indecisive government shall never secure the peoples' interest resulting into multiplicity of litigation. Order passed by the government seems to be an instance of non-application of mind as well as creating a situation where the petitioner has been compelled to approach this Court again though he seems to be entitled for the release of the property in question.
17. Moreover, learned counsel for the petitioner submits that according to the government policy emerging from the circulars dated 27.8.2010 and 30.9.2011, acquired property in identical situation should be released. The policy or decision of the government does not seem to have been considered while passing the impugned order which contains self contradictory averments.
18. As said above, the contents of the impugned order are self contradictory. The government on one way or the other tried to defend its action in spite of the fact that the actual possession of the property was not delivered to Development Authority. Whatever was done, it was on paper. The government is not expected to pass an order without element of fairness. In case, the possession has not been delivered in tune with the judgment of Hon'ble Supreme Court, then the government should have with open heart allowed the application under Section 48 instead of compelling a litigant to approach again to this Court to ventilate his grievance for the purpose of justice.
19. Chapter XXI, Rule 11 of the Allahabad High Court Rules, 1952 prescribes the award of costs, which reads as under:-
" 11. Costs.--- In disposing of an application under this Chapter the Court may make such order as to costs as it may consider just.
1. Costs--Imposition of.-- it is apparent that non-payment of cost is an exemption for which special reasons have to be given by the Court. The cost imposed should be in accordance with rules and if the proceedings are unnecessarily protracted or adjournments have been sought it is upon the discretion of the Judge to impose exemplary cost taking also into account the circumstances etc. for the purpose of adjournment.
2. Awarding of Costs.--Apex Court in Salem Advocate Bar Association, Tamil Nadu v. union of India, AIR 2005 SC 3353, has held that "so far as awarding of costs at the time of judgment is concerned, awarding of costs must be treated generally as mandatory inasmuch as the liberal attitude of the Courts in directing the parties to bear their own costs had led the parties to file a number of frivolous cases in the Courts or to raise frivolous and unnecessary issues. Costs should invariably follow the event. Costs must be appropriately apportioned. Special reasons must be assigned if costs are not being awarded. Costs should be assessed according to the rule in force."
20. Apart from aforesaid statutory provision of the High Court Rules, the Supreme Court in the case reported in (2011)8 SCC 249 Ramrameshwari Devi and others versus Nirmala Devi and others held that the compensation must be awarded to persons who have been forced to enter into litigation.
The principle flowing in Ramrameshwari Devi's case ((supra)) has been reiterated by Hon'ble Supreme Court in the case reported in (2012)6 SCC 430 A. Shanmugam versus Ariya Kshetirya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam represented by its President and others.
21. The proposition to impose cost is further given in catena of judgments of Hon'ble Supreme Court in the cases reported in (2011)8 SCC 161 Indian Council for Enviro-Legal Action vs. Union of India, (1999)2 SCC 325 Marshal Sons & Co. (I) Limited versus Sahi Oretrans (P) Limited, (2003)8 SCC 648 South Eastern Coalfields Limited versus State of M.P., 1984(supp) SCC 505 Zafar Khan v. Board of Revenue.
22. In the case of Amarjeet Singh versus Devi Ratan (2010)1 SCC 417, Hon'ble Supreme Court held as under :
"17. No litigant can derive any benefit from mere pendency of case in a court of law, as the interim order always merges in the final order to be passed in the case and if the writ petition is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of its own wrongs by getting an interim order and thereafter blame the court. The fact that the writ is found, ultimately, devoid of any merit, shows that a frivolous writ petition had been field. The maxim actus curiae neminem gravabit, which means the the act of the court shall prejudice no one, becomes applicable in such a case. In such a fact situation the court is under an obligation to undo the wrong done to a party by the act of the court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court must be neutralised, as the institution of litigation cannot be permitted to confer any advantage on a suitor from delayed action by the act of the court."
Their Lordships of Hon'ble Supreme Court in other judgments reported in (2013)7 SCC 416 National Textile Corporation (Uttar Pradesh) Limited versus Bhim Sen Gupta and others, (2012)3 SCC 1 Centre for Public Interest Litigation and others versus Union of India and others reiterated that the imposition of cost is must and the courts can award compensatory cost to the litigants who have approached to the court because of commission and omission of the State Government.
In the case of Centre for Public Interest Litigation ((supra)), their Lordships of Supreme Court awarded cost to the tune of Rs.50 lacs to each which in totality is Rs.5 crores.
23. In view of above and keeping in view the factual matrix on record, it appears that the petitioner has been compelled to approach this Court for the second time in spite of the fact that while passing the impugned order, the government itself recorded a finding that the petitioner is in possession of the infrastructure regarding the agricultural industry which is running over the land in dispute which, according to the petitioner's counsel, is for more than 48 years. Once, the government itself found that no actual possession has been delivered in the manner provided by the Apex Court in the catena of judgments ((supra)), then it was not open for the government to reject the application and adjudicate the controversy in an indecisive manner with contradictory finding. It is a fit case where exemplary cost should be awarded.
24. The writ petition deserves to be and is hereby allowed.
A writ in the nature of certiorari is issued quashing the impugned order dated 3.6.2013, contained in Annexure No.1 to the writ petition with all consequential benefits. A further writ in the nature of mandamus is issued commanding the State Government to reconsider the petitioner's case keeping in view the observation made in the body of present judgment, expeditiously, say within a period of two months from the date of receipt of a certified copy of the present judgment.
Cost is quantified to Rs.1 lac, out of which the petitioner shall be entitled to Rs.50,000/- and the remaining Rs.50,000/- shall be remitted to the Mediation & Conciliation Centre, High Court, Allahabad. Let the cost be deposited within two months from today. In case the cost is not deposited within the time stipulated above, it shall be recovered as arrears of land revenue by the Collector, Allahabad.
Registry to take follow-up action.
The writ petition is allowed accordingly with cost as above.
Order Date :- 19.9.2014 kkb.