KAMLA DEVI Vs. STATE OF BIHAR

JUDGEMENT

(1.) This batch of seven writ applications questions the legal validity of a general notice issued by the ViceChairman of the Patna Regional Development Authority and published in a daily newspaper on 9-2-1996. The notice purported to have been issued in compliance of the judgment of the Apex Court directed the persons in unauthorised occupation of 57.72 acres of land acquired vide Land Acquisition case No. 63 of 1961-62 to vacate the said land from encroachment within 15 days from the date of publication of the notice otherwise the encroachment shall be removed with the help of Collector, Patna. The petitioners are land owners or their transferees claiming to be in possession of some of the acquired plots over which they had built houses and were living therein. The respondents are the State of Bihar, the Patna Regional Development Authority, the Collector and the Budha Grih Nirman Samiti. The petitions seek quashing of the impugned notice and for an order restraining the respondents authorities from interfering with their peaceful possession and from demolishing any structures on the disputed land in pursuance of the said notice. The respondents oppose the prayer. The writ application are being disposed of at the admission stage with consent.

(2.) The background of the initiation of the land acquisition case No. 633 of 1961-62 (hereinafter called as the "land acquisition case") and its chequered history for more than three decades in course of which acquisition was challenged both in this Court and the Apex Court on several occasion merit immediate attention. The Budha Grih Nirman Samiti (hereinafter referred to as the "Society") is registered under the provisions of the Bihar and Orissa Co-operative Societies Act. The Society moved the State Government for allotment of lands for a housing colony. An area of 25.09 acres was acquired by the Collector, Patna, on the direction of the State Govt. under the ordinary procedure and the possession thereof was delivered to the Society on 11-7-1962. It may be mentioned at the very outset that there is no controversy whatsoever with the acquisition of the aforesaid 25.09 acres of land. The Society again moved the State Govt. for another parcel of land measuring 32.48 acres of land in the vicinity of the lands delivered to the Society earlier. The Patna Improvement Trust whose successor is Patna Regional Development Authority (hereinafter referred to as the "Authority") were also taking steps for acquisition of land for constructing a housing colony. In view of the proposed acquisition at the instance of the P. I. T. a notification was issued for acquisition of 64.49 acres of land in terms of Section 4(1) read with Section 17(4) of the Land Acquisition Act (hereinafter called as the "Act'). There was, however, an understanding that out of 64.49 acres acquired for the Authority 32.48 acres would be allotted to the Society by the Authority. The necessary declaration under Section 6 of the Act was published in the State Gazette in 1959 and after completion of necessary formalities for acquisition of land possession over 32.48 acres was delivered to the Society on 10-11-1959. The acquisition was challenged in this Court and by a decision in Deolall Rai v. State of Bihar, (AIR 1960 Patna 613) the relevant notification for acquisition was quashed leaving it open to the State Govt. for taking steps for fresh acquisition. In the light of the decision of this. Court the Government published a fresh notification dated 6-8-1961 for acquisition of the aforementioned 64. 49 acres of land situated in village Dujra and Rajapur. The legality and validity of the aforesaid acquisition were challenged before this Court in C. W. J.C. No. 812 of 1967 (Ayodhya Bhagat v. State of Bihar) and a Division Bench of this Court by a judgment dated 8th May, 1968 dismissed the challenge. The judgment of this Court was challenged before the Hon'ble Supreme Court of India in Civil Appeal No. 1799 (N) of 1968 (Ayodhya Bhagat v. State of Bihar) and the same was dismissed by the Apex Court by their judgment reported in AIR 1974 SC 1886. On or about 29-4-1967 the Authority adopted a resolution to handover 32.48 acres of land to the Society. In 1972 the Government sanctioned an estimated amount of compensation of rupees thirty five lacs and odd but directed the Collector not to make any award until the full amount of compensation was deposited by the Patna Improvement Trust. The Authority failed to deposit the amount and on 14-9-1981 it passed a resolution not to acquire the lands in question except those portions which were acquired for construction of roads. It may be mentioned that as per declaration published in the Bihar Gazette on 7-10-1961 it had been mentioned that the acquisition was for the purpose of "Boring Road Development Scheme Phase 1" at the expense of the Patna Improvement Trust. The Society challenged the resolution of the Authority dated 14-8-1981 in this Court by filing C.W.J.C. No. 3241 of 1982 (Budha Grih Nirman Sahyog Samiti Ltd. through its Secretary v. State of Bihar). By its judgment dated 23rd May, 1984 this Court quashed the aforementioned resolution of the Authority. The said judgment was questioned by some private respondents in the Supreme Court of India by filing Special Leave Petition which was dismissed by an order dated 23-9-1984 When the direction contained in the judgment passed in C.V. J. C. No. 3241/82 were not being implemented, the Society was compelled to file another writ application (C.V. J. C. No. 6373 of 1988) praying therein for appropriate direction giving effect to the direction of this Court contained in their judgment dated 23rd May, 1984 and for other consequential and incidental reliefs. A number of other writ applications (C.W.J.C. Nos. 8426 of 1988, 9000 of 1989 and 3720 of 1990) were filed by either owners or purchasers of the land in question which formed subject-matter of the land acquisition proceeding. The petitioners claimed that the Society were not entitled to any relief as prayed for in C. W. J. C. No. 6373 of 1988 since it had initiated an alternative proceeding by way of Title Suit and an application under the Bihar Public Land Encroachment Act, 1966. The aforesaid four writ applications were heard by a Division Bench of this Court and disposed of by a common judgment dated 30-7-1993. The judgment of this Court dated 30-7-1993 passed in C. W. J. C. No. 6373 of 1988 and other analogous cases were challenged before the Hon'ble Supreme Court and the Apex Court dismissed the Civil Appeals with costs vide their judgment dated 31-8-1995 in Awadh Bihari Yadav v. State of Bihar, AIR 1996 SC 122 with directions, inter alia, that the direction and order contained in the judgment of this Court in C. W. J. C. No. 3241 of 1982 should be fully and effectively implemented.

(3.) The case of the petitioners in C. W. J. C. No. 2591 of 1996 may be described in detail to provide a representative matrix of facts for appreciating the case of the parties in all the writ applications which are being heard analogous and are being disposed of by this common judgment. The petitioners who are five in number claimed to be original owners of plot Nos. 523 to 527, 627, 628 and 497 which were recorded in the names of their ancestors and over which they are in peaceful possession and have also built houses on some of them. The land acquisition proceeding in Land Acquisition case No. 63 of 1961-62 (hereinafter referred to as the "Land Acquisition Case") was stayed by the High Court by order dated 23-1-1962 passed in M. J. C. No. 65/ 62. The order of stay remained operative till 1-7-1964 when the cape was withdrawn. The petitioners alleged that it was during this period of stay granted by the Court that the Land Acquisition Officer clandestinely issued a certificate giving possession of 57.71 acres of land to an Assistant Engineer of the Patna Improvement Trust whose successor happened to be the Patna Regional Development Authority. The Trust and thereafter its successor the Authority have been characterising the said delivery of possession as "paper possession" and they had therefore been requesting the Collector, Patna, respondent No. 3 to make over actual and physical possession over the land. In that connection the petitioners have filed a copy of letter dated 24-6-1972 addressed by the Chairman of the Trust to the Collector as Annexure-I. The petitioners claim that the land said to have been acquired in the acquisition proceeding remained with the land owners and a number of houses were constructed either by the land owners or their transferees over the land. As many as 1700 houses built by such persons are said to stand on the land today. In 1975 an agreement was concluded between the Society and the Trust to handover 30.02 acres of land out of 64.49 acres under acquisition for construction of houses for the members of the Society. The agreement contained the stipulation that the possession of the same had been delivered to the Society and the Society also allotted plots to its members by executing sale deeds in their favour without any valid right and title. The petitioners claimed that the transfer of the aforesaid 30.02 acres of land to the Society by the Authority acquired under the Boring Road Development Scheme Phase I was entirely against the purpose for which the land was acquired by the Government. The Society requested the Collector to remove the encroachments from the acquired land and the Collector published a public notice in the daily newspaper notifying that persons in unauthorised possession of the acquired land should vacate possession or remove encroachment or should file show cause failing which the encroachment shall be removed at the cost of the persons concerned. The notice dated 5-7-1984 was challenged by one Sri Jagannath Jha by filing C. W. J. C. No. 3482 of 1984 and a Division Bench of this Court found that the notice had been issued without any authority of law. The Court, however, held that the District Magistrate was entitled to take appropriate steps in accordance with law. The judgment of the Division Bench is reported in 1984 B. B.C. I. 820. "The Society submitted a list of 20/ persons said to be in possession of the land which the Society claimed to have got from the Authority in Land Encroachment Case No. 9 of 1984. The Land Encroachment Case was transferred to the D. C. L. R. by the Collector for speedy disposal and the D.C.L. R. rejected the prayer of the Society holding that 32.48 acres of land after its transfer to the Society by the Authority did not come within the definition of public land. The Society thereafter filed Land Encroachment Appeal No. 3 of 1993 against the judgment of the D. C. L. R. which was still pending before the Collector. A copy of the judgment dated 11-2-1992 of the D. C. L. R. has been filed as Annexure-2. The petitioners claim that during the pendency of the Land Encroachment Case the Society through its Secretary and Chairman filed Title Suit No. 32 of 1987 before the Subordinate Judge, Patna, against as many as 364 persons including the father and uncle of the petitioner for confirmation of possession and removal of encroachment. The petitioners have also referred to a writ application (C.W.J.C. No. 6373/ 88) filed by the Society for a direction to the State of Bihar and its officials including the Patna Regional Development Authority to give effect to the directions given by the High Court in C. W. J. C. No. 3241 / 82 by their judgment and order dated 23.5. 1984. It maybe recalled that the Society had earlier filed C. W. J. C. No. 3241/82 and in which this Court had issued certain directions in favour of the Society. The petitioners have quoted the prayer made by the Society in C. W. J. C. No. 6373/88 which reads as follows:-"It is, therefore, prayed that your Lordships may be graciously pleased to issue order, direction or writ in the nature of writ of mandamus against the respondents directing them to immediately hand over the vacant land out of the land forming the subject matter of the writ petition to the petitioner Society, (petitioner No.1) and further to direct the State (respondent No. 2) to complete proceedings in L. E. Case No. of 1984 within a period of two months and/or pass such other order or orders as your Lordships may deem fit and proper and direct respondents 1 and 2 to ensure that during the pendency of the final decision in this petition effective steps should be taken by respondents to see that there is no further encroachment and/or construction in/on the vacant land mentioned in Annexure-4 and direct the respondent to assist the petitioners to have peaceful possession over these vacant land."xx xx xx xxThree other writ petitions filed by land holders and the transferees from the land holders were also heard along with C. W. J. C. No. 6373 / 88 and while C. W. J. C. No. 6373 / 81 was allowed in part and a direction was given to the Land Acquisition Officer to complete and sign the award in terms of the order, the other three petitions were dismissed. It was also observed therein that the Subordinate Judge, Ist Court, Patna and the Collector under the Public Land Encroachment Act should dispose of the suits and the Land Encroachment Proceeding pending in their Court expeditiously. The petitioners have referred to the judgment of the Apex Court reported in AIR 1996 SC 122 whereby all the Special Leave Petitions filed against the judgment of this Court in C.W.J.C. No. 6373 / 88 were dismissed and the State of Bihar and its officials were ordered to complete the Land Acquisition Proceeding in the quickest possible time. It may be recalled that it is in compliance of the aforesaid judgment of the Hon'ble Supreme Court that the impugned notice dated 9-2-1996 purports to have been issued by the Vice-Chairman of the Patna Regional Development Authority (respondent No. 2) and a copy of which has been filed as Annexure-3 and which is sought to be quashed in these writ applications.