Thursday, April 25, 2024
154,225FansLike
654,155FollowersFollow
0SubscribersSubscribe

Writ of mandamus can only be issued for performance of a legal obligation: Allahabad High Court

The Allahabad High Court while dismissing the petition said that writ of mandamus can only be issued for performance of a legal obligation on part of the State or its instrumental/authority. No writ of mandamus can be issued for restraining the State/ authority from undertaking an act which is, in accordance with law.

The Division Bench of Justice Ashwani Kumar Mishra and Justice Syed Qamar Hasan Rizvi passed this order while hearing a petition filed by Deepak Sharma.

The petition has been filed with the prayer to issue a writ of mandamus commanding the respondents not to demolish the construction of petitioner situated on a plot having an area of 0.7510 hectare situated in village Tushyana, Pargana and Tehsil Dadri, District Gautam Buddh Nagar.

A further prayer is made to command the respondents not to interfere in the peaceful possession of the petitioner on the aforesaid plot.

The facts of the case are that the State Government exercising its power of eminent domain issued a notification under Section 4(1)/17(4) of the Land Acquisition Act, 1894 on 10.4.2006 for acquisition of the plot in question.

Urgency clause was invoked and the inquiry contemplated under Section 5-A of the Act was dispensed with. A declaration under Section 6(1)/17(1) of the Act came to be made on 30.11.2006. The respondents took possession of the entire acquired land of plot no.534 on 2.2.2007. An award in terms of Section 11 of the Act was made by the District Magistrate on 27.4.2010.

It is undisputed that by invoking the power of acquisition under the Act the State acquired the entire land of plot and the acquisition proceedings have attained finality. Neither the award is under challenge nor any of the proceedings undertaken thereunder.

The Court observed that

From the facts as have been noticed it is abundantly clear that land falling part of khasra stood acquired pursuant to declaration made under Section 6 of the Act. Satisfaction that such land is needed for public purposes has attached finality. Section 17 of the Act of 1894 containing the urgency clause has also been invoked while issuing declaration under Section 6 of the Act. Section 17(1) of the Act clearly provides that in case of urgency the State is free to take possession of the land on expiration of fifteen days from the date of notice mentioned under Section 9 of the Act upon payment of 80% estimated compensation. As a consequence such land shall thereupon vest absolutely in the Government free from all encumbrances.

As a result of the statutory scheme, it is clear that when the possession of the land is taken after issuance of notice under Section 9 of the Act, the tenure holder would be extinguished of any right, title or interest over such land. The statutory consequence, as is clearly enumerated in law, cannot be avoided or obstructed by the tenure holder, particularly when the acquisition proceedings itself are not under challenge.

The Court found substance in the contention advanced on behalf of the respondents that once the land has been acquired; possession has been taken on 2.2.2007; and an award has been made under Section 11 of the Act on 27.4.2010 the vesting of a land in the State would be complete. It is otherwise a case of invocation of urgency and, therefore, before award such vesting shall follow if possession is taken after notice under Section 9 of the Act.

Once that be so, the Court further found that no writ of mandamus can be issued against the State or the acquiring body to obstruct the utilization of land which has already vested in the authority free from all encumbrances. No further notice is otherwise required to be issued to the petitioner in the matter.

The Court said that,

Writ of mandamus can only be issued for performance of a legal obligation on part of the State or its instrumental/authority. No writ of mandamus can be issued for restraining the State/authority from undertaking an act which is, in accordance with law. Since the vesting of land is complete in the State consequent upon acquisition of land, it would not be open for the petitioner to claim issuance of a writ of mandamus for restraining the respondents from asserting their right over the acquired land.

The argument that petitioner is in settled possession and, therefore, can be dispossessed only as per law is also an argument bereft of merits. As the land has statutorily vested in the State/authority free from all encumbrances, and possession over the land has otherwise been taken in the manner stipulated in law, it would not be necessary for the authority to either institute a suit to take possession or to institute proceedings under Public Premises (Eviction of Unauthorized Occupants) Act, 1971 to physically dispossess the petitioner. The acquisition by the State/authority is of a vast tract of agricultural land and it would not be expected that actual physical possession continues with the State on every inch of the land. Taking of possession pursuant to notice under Section 9 of the Act is otherwise not disputed. In such circumstances, the grievance raised that petitioner is being evicted except in accordance with law is devoid of merits and, therefore, rejected.

So far as the existence of structures on the plot of the petitioner is concerned, the Court is of the view that such structures would form part of land acquired under the Act and also vest in the authority free from all encumbrances. The petitioner at best would be entitled to claim compensation for such structures as per the award. Undoubtedly, the award was made on 27.4.2010. Neither the award has been placed before the Court nor there are any pleadings that in the award adequate compensation for structures have not been provided. In the absence of any challenge to the award, we refrain ourselves from expressing anything further in respect of the petitioner’s right of compensation over such land which has vested in the State/authority free from all encumbrances.

So far as the petitioner’s claim of protection of his abadi site is concerned, the Court also found that a decision by the committee has already been taken to reject petitioner’s claim and that matter has now been remitted to the State Government. Remedy of the petitioner, in such circumstances, would be to press his revision before the State or to move appropriate application etc. for its expeditious disposal. Merely because the revision is pending we would not be justified in issuing a writ of mandamus to restrain the authority from interfering with petitioner’s possession when the land has statutorily vested in the State free from all encumbrances.

“So far as petitioner’s contention that Article 300-A of the Constitution of India is violated is concerned, we find such argument to be misconceived, inasmuch as the protection which the Constitution provides under Article 300-A is that a person would not be deprived of his property except in accordance with law. Since the acquisition herein is in accordance with the provisions of the Act of 1894, the consequence in the nature of vesting of land cannot be treated to be an act violative of Article 300-A”, the Court further observed while dismissing the petition.

spot_img

News Update