Can't Direct State To Decide Representation Of Land Owners To De-notify Land Under Acquisition; The State In Its Discretion Can Do So: P&H HC [Read Order]

Matter before the Court

Notably, the division bench was hearing two petitions, wherein it was prayed that liberty to approach the State government under Section 101A (inserted vide Haryana Act no. 21 of 2018) of the Act be granted to the Writ Applicant/Landowner, whose land was acquired by the state.

Granting thr liberty to approach the State Government under Section 101A of the Act, 2013 can be given to the landowner or not, was the relevant issue for consideration before the Court.

On a perusal of the Apex Court's Judgment in Indore Development Authority's case, the High Court concluded that - once the possession of the land has been taken, the land has vested in the State and the landowner or whosoever have possession of the land would be considered as a trespasser.

Section 101A of the 2013 Act (inserted vide Haryana Act no. 21 of 2018): What does it say?

For the sake of brevity, Section 101A of the Act, 2013 (inserted vide Haryana Act no. 21 of 2018) 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.".

As has been mentioned, 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.

Notably, Section 101A of the 2013 Act came by virtue of Section 5 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Haryana Amendment) 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.

In other words, Section 101A of the Act, 2013 deals with restitution of land to the owners, when the 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 landowners 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 been vested with power by virtue of Section 101A of the Act, 2013 to restitute even such land, which is vested with the State, even after taking possession of the land.

Can the Court direct the state to decide land owners' pleas? : Court's Analysis

The Court noted,

"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."

The Court further remarked,

"Grant of such liberty (to approach the state authorities under S. 101A) 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 landowners."

Moreover, the Court observed, such a grant of liberty is against the spirit of the decision of the Supreme Court in Indore development Authority's case

Notably, the Supreme Court while deciding the scope of Section 24(2) of the Act, 2013 in the above-said case, categorically held that once the possession of the land is taken, the land vests in State free from all encumbrances.

Lastly, the Court said that,

"It can safely be concluded that when Hon'ble the Apex Court has specifically held that after vesting of land in the State, the landowners 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 consonance with the settled law and the judgment delivered by Hon'ble the Apex Court in the present context."

"This provision has been interpreted for the first time. Individual landowners were approaching courts for the release of their land which was resulting in undesired litigation. It will help in curbing that," said, Ankur Mittal, Additional Advocate General, Haryana, who appeared in this case.