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TMI Blog2004 (11) TMI 590X X X X Extracts X X X X X X X X Extracts X X X X ..... tion proceedings, the possession of the said land was taken. Aggrieved by the amount of compensation determined @ Rs. 1400 per sq. yds., the respondent sought reference under Section 18 of the Land Acquisition Act,1894 (for short 'the Land Acquisition Act) seeking enhancement of compensation amount and the reference is pending disposal before the Reference Court. 3. Out of the land so acquired, only 424 sq. yds., of land was utilized and the rest of the land remained vacant. The Resident Engineer (Roads & Buildings) addressed a letter dated 27.12.1996 to the Land Acquisition Officer (Special Collector) informing him that it was difficult to protect the unused land from future encroachment. Having come to know about this letter, the respondent made representations to the District Collector to re-assign unused land to him and that he was prepared to reimburse the compensation that had been received by him along with interest. He also indicated that he was prepared to give up his claim for enhancement of compensation to that extent of land. There was no response from the collector. The respondent filed a writ petition No. 14062/97 in the High Court seeking a writ of mandamus to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Single Judge and even otherwise, the unused land in question was so small that it would not be sufficient to construct any building. Having held so, the Division Bench of the High Court dismissed the writ appeal by the judgment which is under challenge in this appeal. 4. The facts are not in dispute. The questions that arise for consideration are whether direction could be given to the appellants to re-assign unused land to the respondent which was duly acquired by the authorities and the acquisition proceedings had become final except that the reference is pending before the Reference Court only with regard to enhancement of compensation and whether the Board's Standing Order No. 90(32) and Section 54-A of the Act can be applied for reassignment of the unused land in favour of the respondent. 5. Learned counsel for the appellants contended that once the land is acquired in accordance with law which vests in the Government free from all encumbrances, no direction could be given to re-convey the unutilized land which is part of the acquired land; Section 54-A of the Act is not at all applicable to the facts of the present case; the Standing Order No. 90(32) of the Board of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity in respect of the sales in the villages by beat or tom-tom and affixing notice of sales in conspicuous places in the villages concerned. The date of sale should be fixed allowing an interval of thirty days between the date of publicity and the date of sale. The land should be sold by public auction subject to the annual assessment. There shall be no upset price except in the case of railway relinquished lands where a minimum or upset price should be fixed in consultation with Railway Administration before auction. If at the time of sale anybody puts forth his claim in respect of any field either as an adjacent owner, or as an original owner or as heir of the original owner, the sale of that field should be stopped and his claim investigated and disposed of in the manner specified in sub- clause (2) and (3). If it is found that his claim is not proved, the field should be sold by public auction." 8. The amendment to paragraph 32 of Board's Standing Order No. 90(32) brought about by G.O.Ms. No. 783 dated 9.10.1998 reads: "For paragraph 32 of B.S.O. 90, the following paragraph shall be substituted, namely:- PARA 32 Utilisation of acquired lands for any other Public Purpos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be better utilised for the public purpose envisaged in the Directive Principles of the Constitution. In the present case, what we find is that the executive order is not in consonance with the provision of the Act and is, therefore, invalid. Under these circumstances, the Division Bench is well justified in declaring the executive order as invalid. Whatever assignment is made, should be for a public purpose. Otherwise, the land of the Government should be sold only through the public auctions so that the public also gets benefited by getting a higher value." 11. In that case, an extent of 1.94 acres of land was acquired in 1952 for construction of National Highway and the construction was completed in 1955 in 80 cents of land and the balance of land remained unused. The remaining land was sought to be sold to the land owner at the same rate at which the compensation was awarded under Section 11. This again was challenged in the writ petitions. The Government tried to sustain the action on the basis of the executive order issued by the Government for permission for alienation of the land. On these facts, the position of law was made clear in para 4 extracted above. Thus, it is cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 627], it is held that acquired land having vested in the State and the compensation having been paid to the claimant, he was not entitled to restitution of possession on the ground that either original public purpose had ceased to be in operation or the land could not be used for other purpose." 14. From the position of law made clear in the aforementioned decisions, it follows that (1) under Section 16 of the Land Acquisition Act, the land acquired vests in the Government absolutely free from all encumbrances; (2) the land acquired for a public purpose could be utilized for any other public purpose; and (3) the acquired land which is vested in the Government free from all encumbrances cannot be re-assigned or re-conveyed to the original owner merely on the basis of an executive order. 15. At the hearing, we specifically asked learned counsel for the respondent whether the Board's Standing Order 90(32) was issued under any particular statute, the learned counsel was not able to point out to any provision of law under which it was issued. He was not in a position to show that the said order bears any statutory force. Even otherwise, as per para 32 of the said order, the land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deals with occupation of khalsa land and right of occupant. Under Section 54, procedure is prescribed for acquiring unoccupied land. This Section enables a person to submit a petition to Tehsildar if he is desirous of taking unoccupied land. On such application, the Tehsildar may in accordance with the rules made by the Government give permission in writing for occupation. Section 54-A indicates the procedure in respect of land acquired for the purpose of public benefit and which is no more required. It is clear from plain and clear language of the said Section that when an agricultural land acquired for public benefit is no longer required, the patta thereof shall be made in the name of the person or his successor from whom such land was acquired provided he consents to refund the compensation originally paid to him. This Section does not say that the agricultural land acquired for public benefit is no longer required for the purpose for which it is acquired. This Section can be attracted only in a case where agricultural land acquired for public benefit is no longer required not necessarily for the specific purpose for which it was acquired. Added to this, that the land is no mor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the respondent no. 1- erstwhile owner of the building filed a original suit in City Civil Court, Hyderabad, seeking a mandatory injunction for re-conveyance of the building and possession of the same. The appellant contested the suit. The trial court decreed the suit in favour of the respondent no. 1 relying on the Standing Order No. 90(32) of the Board of Revenue. The respondent no. 2 here who was in occupation of the property as a tenant was defendant no. 2 in the suit. The appellant filed first appeal before the 4th Additional Chief Judge, City Civil Court, Hyderabad. The second respondent did not prefer any appeal against the decree made by the trial court. The Addl. Chief Judge dismissed the first appeal affirming the decree made by the trial court. The appellant filed the second appeal before the High Court which was also dismissed. Hence, this appeal. 19. Learned counsel for the parties in this appeal also made similar submissions that were made in Civil Appeal 6546 of 1999 bringing to our notice facts of this case. 20. In the view we have taken in Civil Appeal No. 6546/1999 dealing with the Board's Standing Order No. 90(32) and Section 54-A of the Act and keeping i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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