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TMI Blog2011 (11) TMI 793X X X X Extracts X X X X X X X X Extracts X X X X ..... and Appellant No. 6 Swaran Lata (daughter). Some of the other heirs of Radha Krishan bequeathed their shares to his grandchildren (appellant Nos. 2 and 3) by executing separate Wills. A general power of attorney was also executed in favour of Appellant No. 1 Smt. Leela Wanti @ Savita Rani, wife of Appellant No. 4 Satish Chander 4. In 1976, the State Government acquired the Appellants' land for construction of brick kiln for feeder and return channels in Village-Shodapura. Notifications under Sections 4 and 6 read with Section 17 of the Land Acquisition Act, 1894 (for short, 'the Act') were issued on the same day, i.e., 7.9.1976. The Land Acquisition Collector passed award dated 6.12.1976 and the compensation determined by him was paid to the Appellants, who received the same without raising any objection/protest. 5. After 23 years, the Appellants through their advocate Shri A.K. Wadhawan, sent notice dated 13.7.1999 to the functionaries of the Irrigation Department and the Land Acquisition Collector for return of the acquired land by asserting that the purpose for which land was acquired had been achieved by the Irrigation Department and the acquired land is now ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 3 and 5, it was averred that after the acquired land was transferred to the Haryana State Electricity Board in 1983. the same was used for the specified public purpose. In Para 8 of the counter affidavit it was pleaded that as a policy, the brick kilns were set up by the Irrigation Department in the same area where new channel/canal was constructed. It was further pleaded that after completion of the work the acquired land was utilized for other purposes. 10. The High Court negatived the Appellants' plea that in view of Standing Order 28, the Respondents were obliged to return the acquired land by observing that the object of utilising the acquired land cannot remain static for all times and the same can be used for other purposes. The High Court also observed that once the acquired land vested in the State Government, the same cannot be returned to the owners after a gap of 30 years. 11. Shri Mahendra R. Anand, learned senior counsel appearing for the Appellants argued that the acquisition of the Appellants' land was ex facie illegal because the State Government had invoked the urgency provisions without any tangible reason and, thereby, deprived the land owners of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f under Article 226 is a discretionary power. This is specially true in the case of power to issue writs in the nature of mandamus. Among the several matters which the High Court rightly take into consideration in the exercise of that discretion is the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it. Another is the nature of controversy of facts and law that may have to be decided as regards the availability of consequential relief. Thus, where, as in these cases, a persons comes to the Court for relief under Article 226 on the allegation that he has been assessed to tax under a void legislation and having paid it under a mistake is entitled to get it back, the court, if it finds that the assessment was void, being made under a void provision of law, and the payment was made mistake, is still not bound to exercise its discretion directing repayment. Whether repayment should be ordered in the exercise of this discretion will depend in each case on its own facts and circumstances. It is not easy nor is it desirable to lay down any rule for universal application. It may however be stated as a general rule that if there has been unreason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Government is usually willing to restore agricultural and pastoral land to the persons from whom it acquired it or to their heirs on their refunding the amount paid as compensation less the 15% granted for compulsory acquisition. The price may be lowered, if necessary, on account of deterioration, or enhanced in the rare case of land having been improved by the use to which the government had put it. The improvement must be one affecting the quality of the land. The fact that the land which was unirrigated at the time of acquisition can when relinquished, be watered by a canal is not an improvement of this sort. Considering how great the rise in the market value of the land has been, the terms stated above are very liberal. It is not necessary to adopt them in their entirety where the persons concerned are remote descendants or relations of the original holders and where the circumstances of the case are at all out of common, when for example no price, or merely a nominal price, was paid to the owner in the first instance, or when the rise in the value of land in the neighbourhood has been exceptionally large, these facts should be pointed out when referring such cases for ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Financial Commissioner did not have the jurisdiction to transfer the same to the Forest Department free of cost. 19. In the aforesaid judgment no proposition of law was laid down which could be treated as a binding precedent. That apart, the factual matrix of the present case shows that the acquired land was used for construction of feeder and return channel for Thermal Plant and after the public purpose as specified in the acquisition notification was fulfilled, the land was transferred to HSEB and now it is with Respondent No. 2, i.e., Haryana Power Generation Corporation. This being the position, the High Court cannot be said to have committed any error by declining the Appellants' prayer for issue of a mandamus to the Respondents to return the acquired land. 20. The approach adopted by the High Court is consistent with the law laid down by this Court in State of Kerala v. M. Bhaskaran Pillai (1997) 5 SCC 432 and Government of A.P. v. Syed Akbar (supra). In the first of these cases, the Court considered validity of an executive order passed by the Government for assignment of land to the erstwhile owners and observed: In view of the admitted position that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Government. A letter of Resident Engineer stated that the unused land was no more required cannot amount to relinquishment of the said land by the competent authority. In order to make a claim under para 32 of the said Board's Standing Order in the first place, it was necessary that the competent authority had subsequently relinquished the unused land. After such relinquishment of the land, the land had to be notified for sale in public auction. If at the time of sale of such land, the original owner made a claim, sale could be stopped and his claim could be investigated and thereafter the land was to be disposed of in the manner specified under the said paragraph. Added to this, by virtue of the amendment to para 32 brought about by G.O. Ms. No. 783 dated 9.10.1998, the land for the public purpose shall be utilized for the same purpose for which it was acquired as far as possible and in case the land is not used for the purpose for which it was acquired due to any reason, the land shall be utilized for any other public purpose as deemed fit. 22. For the reasons stated above, we hold that the Appellants have failed to make out a case for issue of a mandamus to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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