***

DAYA CHAUDHARY, J. –

1. By this order, both the civil miscellaneous applications, detailed above, shall be disposed of as common issue is involved in the same. However, the facts are being extracted from CM No.9051 of 2020 in CWP No.22241 of 2016.

2. Applicants-petitioners filed CWP No.22241 of 2016 before this Court with the prayer that compulsory acquisition proceedings notified vide notification dated 02.01.2002 (Annexure P-4) issued under Section 4, followed by declaration dated 24.12.2002 (Annexure P-5) issued under Section 6 of the Act and Award dated 21.12.2004 (Annexure P-6) under Section 11 of the Land Acquisition Act, 1894 shall be deemed to have been lapsed in view of provisions of Section 24(2) of the Right to Fare Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short – “the Act, 2013”) as amended upto date.

3. Notice of motion was issued on 25.10.2016 and thereafter, case was adjourned on various dates. During pendency of the main writ petition, two civil miscellaneous application bearing CM Nos. 9051 and 9059 of 2020 have been moved for withdrawal of CWPs No.22241 and 22247 of 2016, respectively with liberty to approach the respondent-State by way of filing representation under Section 101A of the Act, 2013 for de-notifying their land.

4. Mr. Shailendra Jain, learned Senior Counsel for the applicants-petitioners submits that he may be allowed to withdraw said two petitions with liberty to approach respondent-State by way of filing representation under Section 101A of the Act, 2013 as granted in other cases of similar nature i.e. CWPs No.22948 of 2014, 2115 of 2016, 5652 and 15297 of 2017, 327 of 2018 and 569 of 2020. He further submits that similar applications were moved before this Court and those petitions were allowed to be withdrawn with liberty as prayed for in the applications.

5. Learned Senior counsel for the petitioners further submits that Section 101A of the Act, 2013 came by virtue of Section 5 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Haryana Amendment) Act, 2017 (for short – “the Act, 2017”) enabling the State to de-notify the already acquired land in case the 'public purpose' for which the land was acquired under the Land Acquisition Act, 1894 becomes unviable or non-essential. Section 101A was inserted w.e.f. 24.05.2018 by virtue of notification and it has been deemed to come into force w.e.f. 01.01.2014. Said writ petitions were filed in the year 2016. He further submits that Section 101A of the Act, 2013 appears to be similar to Section 48 of the Land Acquisition Act, 1894 (for short – “the Act, 1894”)but said two provisions operate in different situations as Section 48 of the Act, 1894 deals with withdrawal of the land acquisition proceedings by the State Government in case the possession has not been taken under Section 16 or 17 (1) thereof. Section 101A of the Act, 2013 deals with restitution of land to the owners when land had been taken way back and has vested in the State Government free from all encumbrances. Prior to insertion of Section 101A, in case the notified land had been taken in possession by the Collector and it vested in the State Government free from all encumbrances and there could not be any exercise of power to restitute the same back to the land owners from whom the same was acquired. Section 101A of the Act had been introduced in order to overcome such difficulty. The State Government has now vested with a power by virtue of Section 101A of the Act, 2013 to restitute even such land had been vested with the State, even after taking possession of the land. Learned Senior Counsel also submits that liberty is being sought as a matter of caution to enable the petitioners not to be precluded from filing petitions for having benefit of Section 101A of the Act. Learned Senior Counsel also submits that in case liberty is not granted, the petitioners will have to file a fresh petition and it will just to multiply litigation. In a number of cases such liberty has been granted.

6. Mr. Ankur Mittal, learned Additional Advocate General, Haryana submits that he has no objection in allowing the applications for withdrawal of main writ petitions but he has opposed for granting liberty as prayed for. He further submits that the issue involved in the petitions has already been settled by Hon’ble the Apex Court vide judgment rendered in case Indore Development Authority Vs. Manoharlal and others AIR 2020 SC 1496 = Law Today Live Doc. Id. 15233.

7. Mr. Mittal further submits that CWP No. 22247 of 2016 was filed by the petitioner as his land measuring 12 bigha was acquired for public purpose i.e. development and utilization of land for residential and commercial area for Sector 9 Parts 32 & 33, Karnal followed by Award dated 21.12.2004. Possession of the land was also taken vide Rapat Roznamcha No. 263 dated 21.12.2004. The petitioner has also received compensation for said land and thereafter he filed reference for enhancement of compensation. Petitioner filed CWP No.18887 of 2004 challenging the acquisition proceedings and while issuing notice of motion on 13.12.2004, dispossession was stayed. Thereafter, said writ petition was disposed of vide order dated 09.09.2008 with the liberty to submit the representation to the concerned authority for release of land from acquisition proceedings. Status quo was ordered to be maintained till the representation was decided.

8. The claim of the petitioner was rejected vide order dated 03.08.2012, which was subsequently challenged by the petitioner by way of filing CWP No.1096 of 2013 which was dismissed with the observation that the petitioner had made reference to the award of compensation of the land acquired by the reference Court and Regular First Appeal was filed for enhancement of the compensation against order of reference Court. It was also held that once the petitioner has accepted the compensation and the appeal filed for enhancement, he was estopped from challenging the acquisition proceedings.

9. Thereafter, petitioner approached this Court by way of filing CWP No.9484 of 2013, which was also dismissed on 21.05.2013. Learned State counsel also submits that even thereafter also the petitioner filed CWP No.23832 of 2014 for claiming all benefit of Section 24(2) of the Act, 2013. Said petition was disposed of vide order dated 07.10.2015 with the direction to respondents to decide the representation of the petitioner. The claim of the petitioner was rejected vide order dated 09.08.2016. Thereafter, the petitioner has filed the present petition.

10. Learned State counsel also submits that before filing CWP No.22241 of 2016, the petitioners had also filed a number of petitions. At the end, learned State counsel submits that the petitioners in both the petitions are not entitled for liberty to approach the respondent-State by way of filing representation under Section 101A of the Act, 2013.

11. Heard arguments of learned counsel for the parties. We have also perused the documents available on the file and the contents mentioned in the applications for withdrawal of the writ petition.

12. Two fold prayers have been made in the applications moved in two writ petitions i.e. for withdrawal of the main petition and to grant liberty to move representation under Section 101A of the Act, 2013. Facts of both the cases relating to filing various petitions and orders passed therein are not disputed.

13. Since State has no objection in withdrawing the main petitions, accordingly the applications are partly allowed and prayer qua withdrawal of the main petition in both the cases is accepted but as far as prayer for granting liberty to approach the respondent-State for filing representation under Section 101A of the Act, 2013 is concerned, the same is declined as the issue involved in said petitions had already been settled by the Apex Court in judgment of Indore Development Authority’s case (supra). Meaning thereby, Hon’ble the Apex Court has put the controversy relating to Section 24(2) of the Act, 2013 to an end by laying down certain legal principles with regard to scope and interpretation of Section 24(2) of the Act, 2013.

14. The relevant portion of the judgment describing the legal principles with regard to scope and interpretation of Section 24(2) of the Act, 2013 is important in the present context, which is reproduced as under : -

(A) “Para 363 (2) In case the award has been passed within the window period of five years excluding the period covered by an interim order of the court, then proceedings shall continue as provided under Section 24(1)(b) of the Act of 2013 under the Act of 1894 as if it has not been repealed.

(B) Para 363 (3) The word ‘or’ used in Section 24(2) between possession and compensation has to be read as ‘nor’ or as ‘and’. The deemed lapse of land acquisition proceedings under Section 24(2) of the Act of 2013 takes place where due to inaction of authorities for five years or more prior to commencement of the said Act, the possession of land has not been taken nor compensation has been paid. In other words, in case possession has been taken, compensation has not been paid then there is no lapse. Similarly, if compensation has been paid, possession has not been taken then there is no lapse.

(C) Para 363 (5) In case a person has been tendered the compensation as provided under Section 31(1) of the Act of 1894, it is not open to him to claim that acquisition has lapsed under Section 24(2) due to non-payment or non-deposit of compensation in court. The obligation to pay is complete by tendering the amount under Section 31(1). Land owners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the Act of 2013.

15. The possession of the land was taken by Rapat/Panchnama which is a valid mode of taking possession and the land has vested in the State. Any person retaining the possession thereafter in any manner is treated to be a trespasser. Para 244 and 245 of the judgment in Indore Development Authority’s case (supra) are relevant in this context, which are as under:-

(D) Para 244. Section 16 of the Act of 1894 provided that possession of land may be taken by the State Government after passing of an award and thereupon land vest free from all encumbrances in the State Government. Similar are the provisions made in the case of urgency in Section 17(1). The word “possession” has been used in the Act of 1894, whereas in Section 24(2) of Act of 2013, the expression “physical possession” is used. It is submitted that drawing of panchnama for taking over the possession is not enough when the actual physical possession remained with the landowner and Section 24(2) requires actual physical possession to be taken, not the possession in any other form. When the State has acquired the land and award has been passed, land vests in the State Government free from all encumbrances. The act of vesting of the land in the State is with possession, any person retaining the possession, thereafter, has to be treated as trespasser and has no right to possess the land which vests in the State free from all encumbrances.

(E) Para 245. The question which arises whether there is any difference between taking possession under the Act of 1894 and the expression “physical possession” used in Section 24(2). As a matter of fact, what was contemplated under the Act of 1894, by taking the possession meant only physical possession of the land. Taking over the possession under the Act of 2013 always amounted to taking over physical possession of the land. When the State Government acquires land and drawns up a memorandum of taking possession, that amounts to taking the physical possession of the land. On the large chunk of property or otherwise which is acquired, the Government is not supposed to put some other person or the police force in possession to retain it and start cultivating it till the land is used by it for the purpose for which it has been acquired. The Government is not supposed to start residing or to physically occupy it once possession has been taken by drawing the inquest proceedings for obtaining possession thereof. Thereafter, if any further retaining of land or any re-entry is made on the land or someone starts cultivation on the open land or starts residing in the outhouse, etc., is deemed to be the trespasser on land which in possession of the State. The possession of trespasser always inures for the benefit of the real owner that is the State Government in the case.

16. The stale claim and the concluded proceedings cannot be revived and inquired into within the purview of Section 24 of the Act, 2013. The relevant portion of the judgment in Indore Development Authority’s case (supra) as mentioned in Para No.359 and 363(9), is reproduced as under:-

(F) Para 359. We are of the considered opinion that Section 24 cannot be used to revive dead and stale claims and concluded cases. They cannot be inquired into within the purview of Section 24 of the Act of 2013. The provisions of Section 24 do not invalidate the judgments and orders of the Court, where rights and claims have been lost and negatived. There is no revival of the barred claims by operation of law. Thus, stale and dead claims cannot be permitted to be canvassed on the pretext of enactment of Section 24. In exceptional cases, when in fact, the payment has not been made, but possession has been taken, the remedy lies elsewhere if the case is not covered by the proviso. It is the Court to consider it independently not under section 24(2) of the Act of 2013.

(G) Para 363 (9) Section 24(2) of the Act of 2013 does not give rise to new cause of action to question the legality of concluded proceedings of land acquisition. Section 24 applies to a proceeding pending on the date of enforcement of the Act of 2013, i.e., 1.1.2014. It does not revive stale and time-barred claims and does not reopen concluded proceedings nor allow landowners to question the legality of mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to invalidate acquisition.”

17. On perusal of judgment in Indore Development Authority’s case (supra) and paras as mentioned above, it has categorically been held/observed that once the possession of the land has been taken, the land has vested in the State and the land owner or whosoever have possession of the land would be considered as a trespasser. The legality of the acquisition proceedings cannot be challenged in any mode. The issue for granting such liberty to approach the State Government under Section 101A of the Act, 2013 can be given to the land owner or not, is relevant for consideration. No doubt the said provision is an enabling provision for the State to exercise such power to de-notify the land but does not give any legal right to land owner to approach the State government. Section 101A of the Act, 2013 has been inserted in the Act, 2013 by way of Haryana Amendment Act, 2017, which was notified on 24.05.2018. Section 101A of the Act, 2013 is reproduced as under:-

"101A. Power to denotify land.- When any public purpose, for which the land acquired under the Land Acquisition Act, 1894 becomes unviable or non-essential, the State Government shall be at liberty to denotify such land, on such terms, as considered expedient by the State Government, including the payment of compensation on account of damages, if any, sustained by the land owner due to such acquisition:

Provided that where a part of the acquired land has been utilized or any encumbrances have been created, the landowner may be compensated by providing alternative land along with payment of damages, if any, as determined by the State Government.".

18. On perusal of said provision, it is apparent that it is an enabling provision, whereby the State Government has been vested a right to denotify as considered expedient by the State Government the land acquired under Land Acquisition Act, 1894 if the public purpose for which the land has been acquired under the Land Acquisition Act 1894 has become unviable or non-essential and no right accrues in favour of land owner to represent the State Government to de-notify his/her land.

19. Now the issue is whether this Court while exercising the power under writ jurisdiction for issuance of a writ of mandamus can exercise the discretionary power granted under the Statute which does not confer any corresponding legal right on the individual. In various writ petitions earlier filed by the petitioners in both these petitions, the liberty has been sought but the petitioners have lost their cases in four round of litigations and no such liberty is given. It will multiply the litigations. Any direction by way of issuing mandamus to any person in such like circumstances not only would be wastage of the time of the Court but there would be no end of any litigation. As per Halsbury’s Laws of England, order of Mandamus is of most extensive remedial nature and is in form, a command directed to any person, Corporation or inferior tribunal requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of public duty. The basis of Mandamus is the existence of a right in the person concerned and a corresponding duty upon the respondents. The duty must be of public nature and not just a matter of discretion. The Hon’ble Supreme Court of India in catena of judgments has held that mandamus cannot be issued to the authority/State to exercise the discretionary power. Discretionary power implies freedom of choice, a competent authority may decide whether or not to act. The legal concept of discretion implies power to make a choice between alternative courses of action.

20. The judgment of Hon'ble the Apex Court in case State of Kerala and others Vs. Kandath Distilleries 2013(6) SCC 57 is relevant to decide the present controversy, the relevant portion of the same is reproduced as under:-

“27. Legislature when confers a discretionary power on an authority, it has to be exercised by it in its discretion, the decision ought to be that of the authority concerned and not that of the Court. Court would not interfere with or probe into the merits of the decision made by an authority in exercise of its discretion. Court cannot impede the exercise of discretion of an authority acting under the Statute by issuance of a Writ of Mandamus. A Writ of Mandamus can be issued in favour of an applicant who establishes a legal right in himself and is issued against an authority which has a legal duty to perform, but has failed and/or neglected to do so, but such a legal duty should emanate either in discharge of the public duty or operation of law. We have found that there is no legal duty cast on the Commissioner or the State Government exercising powers under Section 14 0f the Act read with Rule 4 of the 1975 Rules to grant the licence applied for. The High Court, in our view, cannot direct the State Government to part with its exclusive privilege. At best, it can direct consideration of an application for licence. If the High Court feels, in spite of its direction, the application has not been properly considered or arbitrarily rejected, the High Court is not powerless to deal with such a situation that does not mean that the High Court can bend or break the law. Granting liquor licence is not like granting licence to drive a cab or parking a vehicle or issuing a municipal licence to set up a grocery or a fruit shop. Before issuing a writ of mandamus, the High Court should have, at the back of its mind, the legislative scheme, its object and purpose, the subject matter, the evil sought to be remedied, State's exclusive privilege etc. and not to be carried away by the idiosyncrasies or the ipse dixit of an 0fficer who authored the order challenged. Majesty of law is to be upheld not by bending or breaking the law but by strengthening the law.

21. Further the Hon’ble Supreme Court in case Union of India & Ors. Vs. Muralidhara Menon & Anr. 2009(9) SCC 304 observed as follows:

‘...A writ of mandamus can be issued, provided there exists a legal right in the applicant and a corresponding legal duty in the respondent. Even otherwise a Superior Court having a limited jurisdiction in this behalf would not interfere with the discretionary jurisdiction exercised by the Statutory authorities unless a clear case for interference is made out subject of course to just exceptions... '

22. In U.P. State Road Transport Corporation and another Vs. Mohd. Ismail and others AIR I991 SC 1099, Hon'ble the Apex Court observed as under :-

“...The Court cannot dictate the decision of the statutory authority that ought to be made in the exercise of discretion in a given case. The Court cannot direct the statutory authority to exercise the discretion in a particular manner not expressly required by law. The Court could only command the statutory authority by a writ of mandamus to perform its duty by exercising the discretion according to law. Whether alternative job is to be offered or not is a matter left to the discretion of the competent authority of the Corporation and the Corporation has to exercise the discretion in individual cases. The Court cannot command the Corporation to exercise discretion in a particular manner and in favour of a particular person. That would, be beyond the jurisdiction of the Court...”

23. Therefore, when at once it is clear that the power is discretionary and does not confer any corresponding legal right upon the individual right owner, same is thus, outside the purview of the jurisdiction of this Court. Grant of such a liberty would mean commending the Government to consider the case under Section 101A of the Act, 2013 which is though only an enabling provision that too de-notifying the entire acquired land and not just a parcel of land if in the opinion of the State Government the ‘public purpose’ for which the land was acquired has become unviable or non-essential, without giving any right to the land owners.

24. Moreover, such a grant of liberty is against the spirit of the decision given by Hon’ble the Supreme Court in Indore development Authority's case (Supra). It would be relevant to mention here that Hon’ble the Supreme Court while deciding the scope of Section 24(2) of the Act, 2013 has categorically held that once the possession of the land is taken, the land vests in State free from all encumbrances. It is relevant to refer to the relevant paras in this regard:

“254. This Court in V. Chandrasekaran & Anr. v. Administrative Officer & Ors dealt with the concept of vesting under the Act of 1894. The facts of the said case indicated that the appellants and the officials of the State and Development Board connived with each other to enable the appellant to grab/encroach upon the public land, which was acquired and falsified the documents so as to construct flats thereon. Considering the gravamen of the fraud, the Chief Secretary of the State was directed to trace out such officials and to take suitable action against each of them. It was also held by this Court that alienation of land subsequent to notification under Section 4(1) is void and no title passes on the basis of such sale deed. This Court held that once land vested in the State free from all encumbrances, it cannot be divested. Once land has been acquired, it cannot be restored to tenure-holders/persons interested, even if it is not used for the purpose for which it is so acquired. Once possession of land has been taken, it vests in the State free from all encumbrances. Under sections 16 and 17, the acquired property becomes the property of the Government without any limitation or condition either as to title or possession.

255. In National Textile Corporation Ltd. v. Nareshkumar Badrikumar Jagad & Ors, the concept of vesting was considered. This court observed that vesting means an absolute and indefeasible right. Vesting, in general sense, means vesting in possession. Vesting may include vesting of interest too. This Court observed thus:

“38. “Vesting” means having obtained an absolute and indefeasible right. It refers to and is used for transfer or conveyance. “Vesting” in the general sense, means vesting in possession. However, “vesting” does not necessarily and always means possession but includes vesting of interest as well. “Vesting” may mean vesting in title, vesting in possession or vesting in a limited sense, as indicated in the context in which it is used in a particular provision of the Act. The word “vest” has different shades, taking colour from the context in which it is used. It does not necessarily mean absolute vesting in every situation and is capable of bearing the meaning of a limited vesting, being limited, in title as well as duration. Thus, the word "vest" clothes varied colours from the context and situation in which the word came to be used in the statute. The expression "vest" is a word of ambiguous import since it has no fixed connotation and the same has to be understood in a different context under different sets of circumstances. [Vide Fruit & Vegetable Merchants Union v. Delhi Improvement Trust, AIR 1957 SC 344, Maharaj Singh v. State of U.P. AIR 1976 SC 2602, Municipal Corpn. of Hyderabad v. P.N. Murthy AIR 1987 SC 802, Vatticherukuru Village Panchayat v. Nori Venkatarama Deekshithulu 1991 Supp (2) SCC 228, M. Ismail Faruqui v. Union of India AIR 1995 SC 605, SCC p. 404, para 41, Govt. of A.P. v. Nizam, Hyderabad (1996) 3 SCC 282, K.V. Shivakumar v. Appropriate Authority (2000) 3 SCC 485, Municipal Corpn. of Greater Bombay v. Hindustan Petroleum Corpn. AIR 2001 SC 3630 and Sulochana Chandrakant Galande v. Pune Municipal Transport (2010) 8 SCC 467.]”

256. Thus, it is apparent that vesting is with possession and the statute has provided under Sections 16 and 17 of the Act of 1894 that once possession is taken, absolute vesting occurred. It is an indefeasible right and vesting is with possession thereafter. The vesting specified under section 16, takes place after various steps, such as, notification under section 4, declaration under section 6, notice under section 9, award under section 11 and then possession. The statutory provision of vesting of property absolutely free from all encumbrances has to be accorded full effect. Not only the possession vests in the State but all other encumbrances are also removed forthwith. The title of the landholder ceases and the state becomes the absolute owner and in possession of the property. Thereafter there is no control of the land-owner over the property. He cannot have any animus to take the property and to control it. Even if he has retained the possession or otherwise trespassed upon it after possession has been taken by the State, he is a trespasser and such possession of trespasser enures for his benefit and on behalf of the owner.

257. After the land has vested in the State, the total control is of the State. Only the State has a right to deal with the same. In Municipal Corporation of Greater Bombay & Ors. v. Hindustan Petroleum Corporation & Anr167, this Court discussed the concept of vesting in the context of Section 220 of the Bombay Municipal Corporation Act. It has referred to various decisions including that of Richardson v. Robertson, (1862) 6 LT 75 thus:

“8. It is no doubt true that Section 220 provides that any drain which vests in the Corporation is a municipal drain and shall be under the control of the Corporation. In this context, the question arises as to what meaning is required to assign to the word “vest” occurring in Section 220 of the Act? In Richardson v. Robertson 6 LT at p. 78, it was observed by Lord Cranworth as under: (LT p. 78)

“The word ‘vest’ is a word, at least, of ambiguous import. Prima facie ‘vesting’ in possession is the more natural meaning. The expressions ‘investiture’ — ‘clothing’ — and whatever else be the explanation as to the origin of the word, point prima facie rather to the enjoyment than to the obtaining of a right. But I am willing to accede to the argument that was pressed at the Bar, that by long usage ‘vesting’ originally means the having obtained an absolute and indefeasible right, as contradistinguished from the not having so obtained it. But it cannot be disputed that the word ‘vesting’ may mean, and often does mean, that which is its primary etymological signification, namely, vesting in possession.”

15. We are, therefore, of the view that the word “vest” means vesting in title, vesting in possession or vesting in a limited sense, as indicated in the context in which it is used in a particular provision of the Act.”

258. The word ‘vest’ has to be construed in the context in which it is used in a particular provision of the Act. Vesting is absolute and free from all encumbrances that includes possession. Once there is vesting of land, once possession has been taken, section 24(2) does not contemplate divesting of the property from the State as mentioned above.”

25. At the end, it can safely be concluded that when Hon’ble the Apex Court has specifically held that after vesting of land in the State, the land owners cease to have any right over the land in dispute especially when the acquisition proceedings have been upheld in the earlier round of litigation and no liberty can be given as the same would not be in consonance with the settled law and the judgment delivered by Hon'ble the Apex Court in the present context.

26. In some of the cases the Coordinate Benches have given liberty, whereas in some of the cases it has not been granted. Accordingly, it cannot be said that liberty has been granted in all of the cases. Moreover, no reasoning, in granting or non-granting the liberty, has been given. Accordingly, both the civil applications bearing CM Nos. 9051 and 9059 of 2020 filed in CWP Nos. 22241 and 22247 of 2016, respectively are partly allowed and CWP Nos. 22241 and 22247 of 2016 are permitted to be withdrawn but without any liberty.

CWP Nos. 22241 and 22247 of 2016

27. Dismissed as withdrawn.

Petition dismissed.

********