The article talks about the “Return of unutilised land to the erstwhile owner from whom the land was acquired by the Government of India or any State Government on the grounds of public purpose. The article will also deal with the stance of the Supreme Court on the issue and under what circumstances Land can be returned to the erstwhile owner.
The stance of the Government has changed since the advent of “The Right To Fair Compensation And Transparency In Land Acquisition, Rehabilitation, And Resettlement Act, 2013” since in this act the government has inserted a section that provides for the return of unutilised land that is further discussed in the article. Whereas in the Land Acquisition Act, 1894 there is no such clause for the return of unutilized land and the courts have taken a very clear stance that if the land is acquired for a public purpose, after the public purpose was achieved, the rest of the land could be used for any other public purpose. In case there is no other public purpose for which the land is needed, then instead of disposal by way of sale to the erstwhile owner, the land should be put to public auction and the amount fetched in the public auction can be better utilised for the public purpose envisaged in the Directive Principles of the Constitution.
However, in certain cases the court has also directed to return the land to the erstwhile owner where it is deemed appropriate for meeting the end of justice are discussed below.
APPLICABLE LAW
The Right To Fair Compensation And Transparency In Land Acquisition, Rehabilitation And Resettlement Act, 2013
Section 101- Return of unutilised land
When any land acquired under this Act remains unutilised for a period of five years from the date of taking over the possession, the same shall be returned to the original owner or owners or their legal heirs, as the case may be, or to the Land Bank of the appropriate Government by reversion in the manner as may be prescribed by the appropriate Government.
Explanation.–For the purpose of this section, Land Bank means a governmental entity that focuses on the conversion of Government owned vacant, abandoned, unutilised acquired lands and tax-delinquent properties into productive use.
Section 24 of the 2013 Act provides for Land acquisition process under Act No. 1 of 1894 shall be deemed to have lapsed in certain cases.–
Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894,—
- In case no award had been made on the date of the commencement of the 2013 Act i.e. 1-1-2014, then all provisions for determination of compensation in the 2013 Act shall apply.
- In case the award has been passed, then the 2013 Act will have no application.
- In case of land acquired 5 years or more prior to 1-1-2014, where physical possession has not been taken, or compensation has not been paid the proceedings shall be deemed to have lapsed with the Government having the power to acquire afresh.
- In case the award has been made, and compensation in respect of the majority of land holdings has not been deposited, all beneficiaries will be entitled to compensation under the 2013 Act.
The Land Acquisition Act, 1894
- Section 18- Reference to Court– Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the person to whom it is payable, or the apportionment of the compensation among the persons interested.
RETURN OF UNUTILIZED LAND
Cases’s Where Court have allowed Return of Unutilized Land- Ground that the proceedings were vitiated by fraud and there was colourable exercise of power.
In the case of Uddar Gagan Properties Ltd. vs. Sant Singh and Ors.[1] (13.05.2016 – SC) :- It was held by the Supreme Court that “No reason was found whatsoever to disagree with the finding recorded by the High Court that present case was a gross abuse of law on account of unholy nexus of the concerned authorities and the builder to enable the builder to profiteer. The land could either be taken by State for a compelling public purpose or returned to the land owners and not to the builder.”
In the case of Royal Orchid Hotels Limited and Ors. Vs. G. Jayarama Reddy and Ors[2]:- It was held by the Supreme Court that the Land acquired has to be returned erstwhile owners of the Land. Also the court stated that the acquisition was actuated by legal malafides.
“In the result, the appeals are dismissed. Respondent No. 1 shall, if he has already not done so, fulfil his obligation in terms of the impugned judgment within a period of 8 weeks from today. The Appellant shall fulfil their obligation, i.e. return of land to Respondent No. 1 within next 8 weeks.”
- Madras High Court – Land Returned
In the case of Gowri Shanmugasundaram vs Mr.Atulya Mishra I.A.S[3]
The case which pertains to land acquisition nearly 30 years ago and wherein Madras High Court division bench ordered in 2009 and 2015 to reconvey 6.50 grounds of a family which was acquired for integral housing project near Taylor’s Road at Kilpauk.
The issue dates back to 1989-90 wherein initially 64 more grounds belonging to a family were acquired for an integral housing scheme but the surplus land got later transferred to other private and public institutions.
The land acquired for integral housing project was used for Tamil Nadu Housing Board, Tamil Nadu Civil Supplies Corporation and ChinmayaVidyalaya.
As a result, the family were left with 6½ grounds. Two grounds out of which is the pathway. This was also to be acquired for the housing scheme. The family approached Madras High Court in 2000 after special deputy collector in a letter to the government stated that the landowner passed away in 1990 leaving his wife, son and daughter and they will be left in lurch due to the acquisition of land and deemed it a case wherein the land under Section 48 of the land acquisition Act be withdrawn.
In 2006, a division bench took a view that while exercising powers under Section 48-B of land Acquisition Act, the government had not applied their mind and stated that petitioners are entitled to the consideration of their case under Section 48B of the Act and to merely observe that their lands are required for the scheme will not suffice. It also directed the government to dispose of the representation by the family within six weeks.
However, in July 2011, pursuant to the order, the State housing board passed a fresh order wherein the request for reconveyance of 6.5 grounds was rejected. Meanwhile, the proceedings under Tamil Nadu Urban Land (Ceiling and Regulation) Act was challenged in a writ petition in 2007. It was in 2015, a division bench again asked the government to reconvey the land.
The government, after the judgment in 2015, took a view that petitioners were willing to give a quietus to the issue after the court quashed the 2011 order of state housing board while asking to reconvey the land. A further direction was also passed for refund of compensation. However, the state housing department secretary on March 11, 2019, rejected the request for reconveyance of land as a result contempt petition was moved.
The Madras High Court in its order on July 16, 2019 observed “that Housing secretary violated the directions of the court while giving him a chance to pass orders for exclusion of an extent of six grounds and 1750 sq. feet of land and hand over the vacant possession of the property within three weeks.
Supreme Court Case’s Land Once Acquired Can’t Be Returned To The Erstwhile Owner
State of Kerala and Ors. Vs. M. Bhaskaran Pillai and Ors[4] (1997) (Supreme Court)
In view of the admitted position that the land in question was acquired under the Land Acquisition Act, LA by operation of Section 16 of the Land Acquisition Act, it stood vested in the State free from all encumbrances. The question emerges whether the Government can assign the land to the erstwhile owners?
It is settled law that if the land is acquired for a public purpose, after the public purpose was achieved, the rest of the land could be used for any other public purpose.
In case there is no other public purpose for which the land is needed, then instead of disposal by way of sale to the erstwhile owner, the land should be put to public auction and the amount fetched in the public auction can 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.
Chandragauda Ramgonda Patil v. State of Maharashtra[5], it is stated that the acquired land remaining unutilized was not intended to be restituted to the erstwhile owner to whom adequate compensation was paid according to the market value as on the
“We do not think that this Court would be justified in making direction for restitution of the land to the erstwhile owners when the land was taken way back and vested in the Municipality free from all encumbrances. We are not concerned with the validity of the notification in either of the writ petitions. It is axiomatic that the land acquired for a public purpose would be utilised for any another public purpose, though use of it was intended for the original public purpose. It is not intended that any land which remain unutilised, should be restituted to the erstwhile owner to whom adequate compensation was paid according to the market value as on the date of the notification. Under these circumstances, the High Court was well justified in refusing to grant relief in both the writ petitions.”
C.Padma v. Dy. Secy. To the Govt. of T.N[6], 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.
“We find no force in the contention. It is seen that after the notification in G.O.R. 1392 dated October 17, 1962 was published, the acquisition proceeding had become final, the compensation was paid to the appellant’s father and thereafter the lands stood vested in the State. In terms of the agreement as contemplated in Chapter VII of the Act, the company had delivered possession subject to the terms and conditions thereunder. It is seen that one of the conditions was that on cessation of the public purpose, the lands acquired would be surrendered to the Government. In furtherance thereof, the lands came to be surrendered to the Government for resumption. The lands then were allotted to SRVS Ltd., 5th respondent which is also a subsidiary amalgamated company of the original company. Therefore, the public purpose for which acquisition was made was substituted for another public purpose. Moreover, the question stood finally settled 32 years ago and hence the writ petition cannot be entertained after three decades on the ground that either original purpose was not public purpose or the land cannot be used for any other purpose.”
Northern Indian Glass Industries v. Jaswant Singh and Ors[7], referring to the case of Chandragauda Ramgonda Patil (supra) and other cases held that “if the land was not used for the purpose for which it was acquired, it was open to the State Government to take action but that did not confer any right on the respondents to ask for restitution of the land”.
V. Chandrasekaran and Ors. Vs. The Administrative Officer and Ors[8] (18.09.2012 – SC)
It is a settled legal proposition, that once the land is vested in the State, free from all encumbrances, it cannot be divested and proceedings under the Act would not lapse, even if an award is not made within the statutorily stipulated period.
In Kapila Majhi v. State[9] (Orissa High Court), the brief facts of the case are that, the land of the petitioner was acquired by the State Government under the Land Acquisition Act, 1894 for the establishment of a paper mill industry. Compensation was awarded. However, the Paper Mill Company had not taken any step for the establishment of the paper mill. This was the contention of the petitioner. The opposite party contended that after acquisition, due compensation was paid as per the provision of the Land Acquisition Act. It was further stated that the land was acquired for a public purpose. The Court held that once the possession of the land is taken under the provisions of the Act, it vests in the State free from all encumbrances, whatsoever, it cannot be divested. The land so acquired cannot be restored to the tenure holder/person interested even if it is not used for the purpose it was acquired or for any other purpose. After the acquisition of land, it could be put to use for the purposes other than for what it was originally declared. The new owners have the ordinary rights of proprietors and may use the land as it thinks fit for any purpose. It is not the concern of the landowner as to how his land is used and whether the land is being used for the purpose which it was acquired for.
[1] MANU/SC/0590/2016
[2] MANU/SC/1146/2011
[3] MANU/TN/5634/2019
[4] MANU/SC/0731/1997
[5] MANU/SC/1264/1996 : (1996)6SCC405- (1996)6SCC405
[6] (MANU/SC/1066/1997) : (1997)2SCC627
[7] MANU/SC/0965/2002 : AIR2003SC234
[8] MANU/SC/0751/2012
[9] Kapila Majhi v. State 2019 SCC OnLine Ori 181
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