CA No. ... @ SLP(C) 23216 of 2009 1

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   3777  OF 2011 (arising out of SLP (C) No. 23216 of 2009)

Jharkhand State Housing Board & Anr.         … Appellants  

VERSUS

Akhileshwar Singh & Ors.               …Respondents  

O R D E R  

1. Jharkhand State  Housing  Board  and  its  functionary,  

aggrieved by the order dated 4th of March, 2009 passed by the  

Division Bench of the Jharkhand High Court in LPA No. 248 of  

2008  affirming  the  judgment  and  order  dated  13th of  May,  

2008 passed by the learned Single Judge in W.P. (C) No. 216  

of 2008, have preferred this special leave petition.

2. Leave granted.

3. Bereft  of  unnecessary  details  facts  giving  rise  to  the  

present appeal are that a Notification dated 22nd of July, 1964  

was issued under Section 4 of the Land Acquisition Act for  

acquisition of different plots of land in Mouja Hirapur within  

the district of Dhanbad in the State of Jharkhand.  Thereafter

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Gazette Notification under Section 6 of the Land Acquisition  

Act was issued on 17th of August, 1965.  The acquisition was  

for  the  purpose  of  housing  scheme  to  be  executed  by  the  

predecessor-in-interest  of  the  appellants  i.e.  Bihar  State  

Housing Board.  Ultimately an award was made in the year  

1976 and the  predecessor-in-interest  of  the  appellants  was  

handed over the possession of the land measuring 66.44 acres  

of  land.  Shri  Ram Narayan Aggarwala,  the predecessor-in-

interest of the writ petititioner-respondent No. 1 owned out of  

the acquired land an area of 0.36 acres of land i.e. 4 decimals  

of Plot No. 397, 3 decimals of Plot No. 398 and 29 decimals of  

Plot No. 399 of Mauja Hirapur.  Separate award i.e. Award No.  

80  was  made  in  respect  of  this  land.   However,  physical  

possession in respect of this 0.36 acres of land belonging to  

Shri Ram Narayan Aggarwala could not be taken, then as it  

had structure over it and was in occupation of said Shri Ram  

Narayan Aggarwala.  Said Shri Ram Narayan Aggarwala did  

not accept  the aforesaid award and filed an application for  

reference  to  the  court  of  competent  jurisdiction  for  

enhancement of the amount of compensation.  He further did  

not receive the amount of compensation and filed Writ Petition  

No. 212 of 1976 before the Patna High Court challenging the

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acquisition of the aforesaid piece of land. A Division Bench of  

the Patna High Court by its judgment dated 29th of April, 1997  

dismissed the writ petition and upheld the acquisition.   

4. Aforesaid Shri Ram Narayan Aggarwala thereafter sold  

the land to Shri Sital Singh, Kirani Singh, Sudama Devi and  

Pukari  Devi,  predecessor-in-interest  of  the  writ  petitioner-

respondent No. 1 herein, hereinafter referred to as the writ  

petitioner  on  16th of  January,  1986.   The  purchasers  

approached the State  Government  for  de-notification of  the  

land  from  acquisition  under  Section  48  (1)  of  the  Land  

Acquisition Act and when did not succeed, filed writ petition  

bearing CWJC No. 3047 of 1992 (R) before the Ranchi Bench  

of the Patna High Court challenging the acquisition itself.  A  

Division Bench of the Patna High Court by its order dated 20th  

of October, 1992 dismissed the petition as withdrawn.  As the  

writ petitioner was illegally in possession of the land acquired,  

the Bihar State Housing Board filed petition for his eviction  

under the provisions of the Bihar State Housing Board Act.  

The competent officer under the said Act by its order dated 1st  

of June, 1999 ordered eviction of the writ-petitioner and also  

directed for removal of the unauthorized construction over the  

said land.  Aggrieved by the order of the competent officer he

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preferred appeal and the same was dismissed by the appellate  

authority  by  order  dated  15th of  February,  2000.   The  

appellant  Jharkhand State  Housing Board thereafter  by its  

letter dated 5th of November, 2007 asked the writ-petitioner to  

vacate and remove the encroachment and aggrieved by the  

same, he preferred W.P.(C) No. 216 of 2008 before the High  

Court inter alia praying to issue notification for release of the  

land.  A learned Single Judge of the High Court by its order  

dated 4th of  May, 2008 disposed of the writ  petition with a  

direction to the State Government to take final decision on the  

proposal of de-notification of the land and till such a decision  

is  taken,  not  to  take  any  coercive  action  for  ejecting  him.  

Aggrieved by the same appellants  preferred appeal  and the  

Division  Bench  of  the  High  Court  by  the  impugned  order  

dismissed the same.   

5. Mr. V. Shekhar, Senior Advocate appearing on behalf of  

the  appellants  submits  that  several  attempts  were  made to  

question  the  legality  and validity  of  the  acquisition but  the  

same  was  upheld  and,  in  fact,  writ  petitioner  had  not  

purchased the property but a litigation.  He points out that an  

order  of  eviction was passed against  him by the competent  

officer  under  the  Bihar  State  Housing  Board  Act  and  the

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challenge to the same had failed and, therefore,  he had no  

right  to  challenge  the  consequential  order  issued  by  the  

appellants to vacate and remove the encroachment from the  

acquired land.  He further submits that the State Government  

considered the proposal of the Deputy Commissioner for de-

notification  of  the  land  and  the  State  Government  having  

turned down the same, writ petitioner cannot compel the State  

Government to de-notify the acquisition.  

6. Mr.  Ajit  Kumar Sinha,  Senior  Advocate  appearing on  

behalf of the respondent No. 1 submits that as the proposal of  

the de-notification of the land from acquisition was made by  

the Deputy Commissioner, the State Government was obliged  

to take a final decision in that regard and the High Court did  

not err in issuing such a direction.  He further submits that  

the land over which the respondent had made construction  

was never acquired and, therefore, the respondent cannot be  

asked to vacate the same.  

7. We  have  bestowed  our  consideration  to  the  rival  

submissions and we find substance in the submission of the  

learned  counsel  for  the  appellants.   Admittedly  the  land in  

question  initially  belonged  to  Shri  Ram Narayan  Aggarwala

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and  was  purchased  by  the  predecessor-in-interest  of  writ  

petitioner.  Shri Ram Narayan Aggarwala had challenged the  

acquisition  by  filing  a  writ  petition  which  was  dismissed.  

Thereafter, according to the case of the writ petitioner himself,  

it  is his predecessor-in-interest  who purchased the property  

from Shri Ram Narayan Aggarwala.  An attempt was made by  

them also to assail the acquisition by filing a writ petition but  

they did not succeed.  Thereafter, the competent officer under  

the  Bihar  State  Housing  Board  Act  ordered  eviction  of  the  

respondent  as  also  for  removal  of  the  unauthorized  

construction.  Aggrived by the same he preferred appeal but  

the same was dismissed.

8. In  the  light  of  the  aforesaid  order  of  the  competent  

officer, writ petitioner was served with the letter dated 5th of  

November,  2007  asking  him  to  vacate  and  remove  the  

construction.  He did not challenge the orders of competent or  

appellate  authority  passed  under  the  Bihar  Housing  Board  

Act,  directing  removal  of  encroachment  but  after  the  letter  

dated 5th of November, 2007 by which he was asked to vacate  

and remove the encroachment, he preferred the writ petition  

challenging the same inter alia alleging that the proposal for  

de-notification  of  the  land  is  pending  before  the  State

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Government and, as such, direction to vacate and remove the  

construction  is  illegal.   From  the  facts  stated  above  it  is  

evident  that  the  respondent  instead  of  purchasing  the  

property, in sum and substance, had purchased a litigation  

and attempted to deny the possession to the rightful owner by  

hook or crook.  He has no right to seek de-notification of the  

land acquired.  In any view of the matter said power had been  

conferred on the State Government and from the statement  

made in  the  counter  affidavit  filed  by  the  State,  same has  

been refused and, therefore, in our opinion, writ petitioner is  

not entitled for any relief.

 9. Mr. Sinha, while resisting the relief prayed for by the  

appellants had submitted that the land in question was never  

acquired.  This argument has only been noted to be rejected.  

Admittedly,  the  writ  petitioner  had purchased the acquired  

property from Shri Ram Narayan Aggarwala.  Had it not been  

so,  there  was  no  occasion  for  said  Shri  Ram  Narayan  

Aggarwala to challenge the acquision.  Not only that after the  

purchase of the property an attempt was made to challenge  

the  acquisition  by  the  predecessor-in-interest  of  the  writ  

petitioner also but that had also failed.  Therefore, there is no  

escape  from the  conclusion  that  the  land  in  question  was

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acquired under the Land Acquisition Act.  In the facts and  

circumstances  of  the  case  we  are  of  the  opinion  that  the  

direction given in the impugned order is absolutely uncalled  

for.

10. In  the  result,  the  appeal  is  allowed,  impugned  

judgment and order of the High Court is set aside and the writ  

petition  stands  dismissed.   There  shall  be  no  order  as  to  

costs.

……….………………………………..J.                          (HARJIT SINGH BEDI)

..........………………………………..J.                                         (CHANDRAMAULI KR. PRASAD)

NEW DELHI, APRIL 20, 2011.