HARDAI Vs. STATE OF H.P.

JUDGEMENT

(1.) IN this writ petition filed under Articles 226/227 of the Constitution of India, petitioners pray, inter alia, the following reliefs: "1. That the respondents may be directed to initiate and finalise the proceedings for acquisition of land belonging to the petitioners as entered against Khasra Nos. 741/661, measuring 4 bighas, situated at Mauza Suni, as per jamabandi for the year 1979 -80 and to pay the market value in accordance with law and the provisions of Land Acquisition Act.

(2.) THAT the respondents may be directed to pay special equable amount of compensation to the petitioners in addition to the compensation admissible under the provisions of Land Acquisition Act.

(3.) THAT the cost of the petition may be awarded in favour of the petitioners." 2. The petitioners are the legal representatives of deceased Badri Dass Gupta who died on 22.7.1994. It is the case of the petitioners -that deceased Badri Dass Gupta was the owner in possession of land comprising Khata No. 54 min. Khatauni No. 76 min, Khasra No. 741/661 to the extent of 4 bighas situated at Mauza and Tehsil Suni, District Shimla. The respondents un -authorisidely occupied and utilized the land in dispute in the year 1980. Late Bndri Dass Gupta preferred representation dated 4.11.1982 (Annexure P -2) to the Collector, Shimla District -respondent No. 3 herein stating therein that the land in dispute was acquired by the Department of Agriculture and Horticulture without payment of amount of compensation and possession of the land was also taken in the year 1980. The deceased represented that instead of going for litigation, he may be granted land measuring 6 bighas 1 biswa out of the land of the State Government comprising Khasra Nos. 866/826/1 or out of Khasra Nos. 201/255 at Mauza and Tehsil Suni, District Shimla. According to the petitioners. Horticulture Sub Inspector, Progeni -cum -Demonstration Orchard, Suhi submitted his report dated 3.2.1993 (Annexure P -3) admitting the factum of taking possession of the land in dispute of late. Badri Dass Gupta as the same was located by the side of Shimla Tatapani Road and in front of the office of the Horticulture Department. In the report no objection in exchange of the Government land with the land of late Badri Dass Gupta was given. The application of deceased Badri Dass Gupta was forwarded by Tehsildar to the Sub Divisional Officer (Civil), Shimla on 30.3.1983 who in turn forwarded the application to respondent No. 3 on 14.2.1984 for exchange of the Government land. Respondent No. 3 forwarded the case to the Horticulture and Forest Departments for submitting their reports. The Divisional Forest Officer, Shimla, Forest Division vide letter dated 23.5.1985 (Annexure P -5) informed respondent No. 3 that the land applied for in exchange by deceased Badri Dass Gupta could not be granted to him as six trees of Khair and Shesum were standing thereon. According to the petitioners the Tehsildar Suni submitted his report to the Sub Divisional Officer (Civil), Shimla on 9th August, 1984 stating that the objection of the Forest Department was unnecessary because the area of Khasra Nos. 866/826/1 applied for in exchange was not situated in jungle Mehduda nor there was any tree standing thereon and the area applied for in exchange was away from the road side. The Sub Divisional Officer (Civil), Shimla vide his report dated 6th September, 1984 (Annexure P -4) recommended to respondent No. 3 the grant of exchange of the Government land to the extent of 4 bighas out of Khasra Nos. 866/826/1 to deceased Badri Dass Gupta as the land in dispute was in possession of the Horticulture Department, Respondent No. 3 vide order dated 30.1.1987 (Annexure P -6) observed that the area applied for by way of exchange could not be granted as it had fallen within the Notified Area, Suni as the Nautor Rules under which exchange was permissible were not applicable in Urban area. Respondent No. 3 further observed that Badri Dass Gupta could be granted Government land on lease basis and the matter was referred to Tehsildar, Suni for necessary action. Late Badri Dass Gupta submitted representation dated 24.4.1988 (Annexure P -7) to the Secretary Revenue to the State of Himachal Pradesh -respondent No. 1 herein, Secretary Agriculture and Horticulture to the Government of Himachal Pradesh -respondent No. 2, respondent No. 3 and the Tehsildar Suni stating that he may be paid market value of the land in dispute occupied by the Agriculture and Horticulture Department or in the alternative he may be granted the land by way of exchange. The Deputy Secretary (Horticulture) to the Government of Himachal Pradesh wrote a letter dated 7th June, 1988 (Annexure P -8) to the Director of Horticulture requesting the latter to intimate the former whether the Department was concerned with the matter in controversy or not. The petitioners have stated that no action was taken by the respondents and late Badri Dass Gupta was forced to sent urgent reminder dated 23.5.1990 (Annexure P -9). Thereafter three legal notices through Advocate dated 7.8.1992 (Annexure P -10), dated 15.6.1993 (Annexure P -11) and dated 13.5.1991 (Annexure P -12) were served by the original owner of the land on the respondents requesting them either to make payment of suitable amount of compensation to him or to grant equivalent land in exchange of the land in dispute. According to the petitioners the respondents have not redressed their grievances. On the preceding facts, the petitioners prayed for the above said reliefs. 3. In the counter -affidavit filed on behalf of respondents No. 1 and 3, Deputy Commissioner -cum -Collector, Shimla has admitted that the land comprising Khasra Nos. 741/661 measuring 4 bighas situated in Mauza Suni was owned and possessed by late Badri Dass Gupta as per the entries in the revenue recording the year 1979 -80, but on the spot the land in dispute was. in use and possession of Horticulture Department of the State Government. It is stated that the District -Horticulture Officer, Shimla had intimated that the land of the petitioners was never acquired by the Horticulture Department as no record of acquisition was available in his office. Thus, the question of grant of Government land in exchange of the land of the petitioners would not arise. Further it is stated that it was for the incumbent upon Department to acquire the land of the petitioners and pay the compensation. It is asserted that the land applied for in exchange by the petitioners is situated within the Notified Area Committee, Suni and the Nautor Rules under which exchange was permissible were not applicable in Urban area, therefore, the land Applied for in exchange could not be granted to the petitioners. 4. In the counter -affidavit filed on behalf of respondent No. 2, Director of Horticulture asserted that the land of the petitioners had been purchased by the Agriculture Department and the cost stood already paid to the petitioners as per letter dated 7th June, 1961 written by Director of Horticulture to the Joint Secretary (Revenue) to Himachal Pradesh Administration (Annexure R -1) as such the petitioners have no right to maintain the present writ petition. It is stated that the land in dispute was transferred by the Agriculture Department to the Horticulture Department as it was found unsuitable for seed multiplication farm. Proceedings under the Land Acquisition Act were initiated vide notification dated 17th February, 1961 (Annexure P -3), but as the land in dispute was subsequently purchased by way of private negotiations by the Horticulture Department, the amount was paid to the original owner of the land through Naib Tehsildar, Suni, the land acquisition proceedings thereafter were not processed further. The Director of Horticulture has admitted that the land in dispute was in the possession of the Horticulture Department.