HIGH COURT OF JUDICATURE AT ALLAHABAD ?AFR Court No. - 35 Case :- WRIT - C No. - 5680 of 2009 Petitioner :- Ram Laut Respondent :- State Of U.P. And Others Petitioner Counsel :- Rajesh Tripathi Respondent Counsel :- C.S.C. Hon'ble Sunil Ambwani,J.
Hon'ble Kashi Nath Pandey,J.
1. We have heard Shri Rajesh Tripathi for the petitioner. Learned Standing Counsel appears for the State respondents.
2. The petitioner is challenging the notification under sub-section (1) of Section 4 of the Land Acquisition Act, 1894 dated 21.5.2008 with the opinion of the Governor, that sub-section (1) of Section 17 is applicable as the land is urgently required for the construction of residential buildings of District Head Quarters in District Sant Kabir Nagar, and that in view of pressing urgency it is as well necessary to eliminate the delay likely to be caused by an enquiry under Section 5-A of the Act for which the Governor is pleased to direct under sub-section (4) of Section 17 that the provisions of Section 5-A shall not apply. The petitioner is also challenging notification under Section 6 read with sub-section (1) of Section 17 of the Act dated 1.4.2009 and has prayed that the respondents be restrained from taking forcibly possession of the taking land in dispute.
3. Learned counsel for the petitioner submits that the notification under sub-section (1) of Section 6 dated 1.7.2009 was published beyond the period of one year from the date of publication of notification under sub section (1) of Section 4 applying sub-section (1) of Section 17 of the Act and thus the entire land acquisition proceedings are barred by proviso (ii) of sub-section (1) of Section 6 of the Act. He further submits that there was no urgency much less extreme urgency to apply sub-section (1) of Section 17 and also sub-section (4) of Section 17 to take over possession, though no award has been made. It is submitted that the construction of residential houses for district officials in district headquarters is not an urgency, which cannot brook any delay. He has relied upon judgments in Anand Singh & another vs. State of UP and others JT 2010 (8) SC 15: 2010 (10) SCC 242; State of West Bengal vs. Prafulla Churan Law 2011 (3) AD SC 296; Dev Sharan vs. State of UP and ors 2011 SCC L. Com 189 and Shri Radhey Shyam (Dead) through LRs vs. State of UP, Civil Appeal No. 3261 of 2011 decided by the Supreme Court on 14.4.2011.
4. A counter affidavit of Shri Rajesh Kumar Srivastava, Tehsildar (Judicial), Tehsil Khalilabad, District Sant Kabir Nagar is on record stating that Sant Kabir Nagar is a newly created district. The land near the Collectorate Bhawan and National highway was proposed to be acquired by the Mandliya Bhoomi Samiti. A resolution was passed for acquisition of land on which the acquisition proceeding was started in village Khatauli Tappa Oon, Pargana Magahar Purab Tehsil Khalilabad, District Sant Kabir Nagar. Prior to creation of Sant Kabir Nagar, Khalilabad was not headquarter of Tehsil. In 1997, after creation of Sant Kabir Nagar, Khalilabad was also converted into district headquarter and officers and employees were appointed. Since Khalilabad was headquarter for Tehsil earlier, there was no infrastructure for Government offices and residential buildings for government employees. The infrastructure was absolutely lacking. The office of the District Magistrate was established in the residence of Assistant Engineer, PWD, Camp office and that office is still running in the Dak Bungalow of the District Magistrate. There was no residence for the District Magistrate, SDM and other officers and employees of the Tehsil. The land was urgently required for construction of the houses to establish the district headquarters.
5. In the paragraph-6 of the counter affidavit of Shri Suresh Chandra, Sub Divisional Magistrate, Khalilabad, District Sant Kabir Nagar filed to the amendment application it is stated in paragraph-6 as follows:-
"6.That, the allegations made in paragraph No. 29 of the amendment writ petition are misleading and are also incorrect. It is stated that the petitioner was owner of Plot No. 485 but after the taking of possession of the aforesaid plot, the land has been recorded as in the name of residential house for headquarters. A copy of Khatauni is being filed herewith and marked as ANNEXURE NO. CA-1 to this counter affidavit. It is further stated that the petitioner has also taken the compensation under the Agreement Rules 1997 on 14.3.2011, known as U.P. Land Acquisition (Determination of Compensation by way of Agreement and Declaration of Award) Rules, 1997. Copy of documents and form CC evidencing the payment of aforesaid compensation to the petitioner is being filed herewith and marked as ANNEXURE NO. CA-2 to this counter affidavit. The petitioner has also given an affidavit that he will not claim anything, the aforesaid amount received by him. It is further important to mention that the possession of the aforesaid plot has been taken on 16.11.2010. A copy of possession memo is being filed herewith and marked as ANNEXURE NO. CA-3 to this counter affidavit."
6. An award was declared by the Special Land Acquisition Officer, Basti on 16.11.2010. In the award dates of the notifications have been given. The notification under Section 4 (1)/17 was published on 21.5.2008. It was published in the daily newspapers 'Dainik Jagaran' Gorakhpur on 5.7.2008; 'Amar Ujala' on 4.7.2008 and in the locality on 7.5.2009. The last of date of the publication of the notification under Section 4 (1) is 5.7.2008 and thus the notification under Section 6 (1) published on 1.7.2009 is within the period of one year of the publication of notification of Section 4 (1)/17.
7. The notices under Section 9 were issued and the possession was taken on 16.11.2010. In the award there is a reference of meetings held between officers of the district administration and the land owners. After deliberation in these meetings along with officers nominated by the District Magistrate in the Committee, it was agreed that the compensation be paid at the rate of Rs. 300/- per square meters. If 30% solatiam was added to the total area 16.515 hectares, the amount approved by the Commissioner, Basti Division, Basti comes to Rs. 4, 95, 45, 000/-. The approval was obtained on 26.7.2010 on which the land owners including the petitioner agreed to receive the compensation under the U.P. Land Acquisition (Determination of Compensation by way of Agreement and Declaration of Award) Rules, 1997. The petitioner has received the compensation by executing an agreement on 21.9.2010. The agreement clearly states that the land owners will not claim any other amount, and will accept the compensation as it has been offered and paid to them.
8. The Rules of 1997 have been made by the State Government in exercise of powers under sub-section (1) of Section 55 of the Land Acquisition Act. Rule 2 of the Agreement Rules of 1997 provides for the body or department for which the land if being acquired at any stage of proceeding to settle down the terms and conditions and rates of the land under acquisition, with the land owners. The Collector, after he is satisfied, will issue notice to the persons interested in the land under acquisition to express their readiness and willingness to execute the agreement in writing, on the matters to be included in the award. On being satisfied and after hearing the parties under Rule 3 the Collector may, that the persons interested in the land are ready and willing to execute the agreement, grant the permission unless, for reasons to be recorded in writing he decides to refuse it. The agreement is required to be executed on a form provided with reference to sub-rule (2) of Rule 4. Clause (3) of the statutory agreement form provides as follows:-
"(3) that the owner/owners and interested party/parties shall not claim any amount in addition to the amount agreed upon as aforesaid as compensation and accept it without any protest."
9. The Agreement Rules of 1997 were made to satisfy the land owners with the rate of compensation and to avoid protest and litigation. The determination of the amount with the consent of the land owners in the meeting held with the Committee constituted by the District Magistrate and on execution of an agreement avoids necessity of making an award and the dispute as to the adequacy of the compensation in accordance with Section 23 of the Act. In case of an agreement the land owner agrees to accept the compensation in lieu of the acquisition of the land notified under Sections 4 and 6 of the Act. The execution of the agreement not only settle down the rate of compensation but also other issues, which may arise out of proceeding of acquisition. It is an agreement to accept compensation for the land acquired under the Act of which the possession has been taken or is proposed to be taken. No dispute survives after the amount is received and agreement is signed. After the execution of the agreement under the Rules of 1997, unless it is discovered that the agreement is fraudulent and in that case the Collector shall suo motu or on an application made on that behalf, cancel the agreement after giving a reasonable opportunity of being heard to the persons, who have executed the agreement, under sub-rule (2) of Rules 6 the land owner is not left with any right to claim any other amount as compensation or damages from the State Government. The contract to accept the compensation, concludes the acquisition proceedings, qua the land owner.
10. In the present case, the notification under Section 6 (1) was issued within one year of the last of the dates of publication of the notification under Section 4 (1) of the Act. The notification under sub-section (1) of Section 6 thus cannot be said to have been issued beyond the period prescribed under proviso (ii) to sub-section (1) of Section 6 of the Act. The period of one year is to be counted from the last of the dates of publication and giving of the public notice, which is referred to as the date of publication of the notification by an amendment to sub section (1) of Section 4 by Act No. 68 of 1984.
11. The petitioner has not denied that he has entered into an agreement under the Agreement Rules of 1997, and has accepted the compensation to his satisfaction for plot No. 485 acquired under the subject notification. He is thus precluded to raise any grievance with regard to the validity of the notification; the urgency in the acquisition, and application of sub-section (1) and (4) of Section 17. The petitioners' reliance on a Division Bench judgment of this Court in Pooran and others vs. State of UP and others 2009 (1) ADJ 679 (DB) is entirely misplaced. In this case after setting aside the notification under Section 4/17 (1) and (4) and Section in respect of the land acquired in respect of 2500 acres of land acquired by the State Government for the purpose of establishment of a 3000-3500 MW Gas Based Thermal Power Station in Tehsil Hapur, District Ghaziabad by Reliance Delhi Power Private Limited, the Court directed that all subsequent proceedings consequent to the notification under Section 4/17 (1) and (4) dated 11.2.2004 including the notification under Section 6 dated 25.6.2004 to be quashed; the Collector was directed to proceed with the enquiry under Section 5-A. In direction no. 5 the Division Bench provided that as a result of quashing of the notification dated 25.6.2004 and 20.2.2007 the petitioners are liable to refund the compensation received from the respondents. It was provided that it shall be open for those tenure holders who have no objection to the acquisition to indicate so in their objection filed under Section 5A in which event they may seek exemption from the Collector for refunding the compensation. The Collector was directed to proceed to decide the objection under Section 5A of the Act of only those tenure holders who had refunded the compensation received by them.
12. The acquisition of land for Reliance Delhi Power Private Limited was quashed in Pooran's case on the ground that the acquisition was made on an application of and for the company and thus provisions of Part VII of the Act were applicable. The State Support Agreement dated 16.6.2004 was not treated to be an agreement within the meaning of Section 43. The Court held that if the State Support Agreement could be treated as an agreement under which the State Government acquired the land for itself to be transferred to Reliance Delhi Power Private Limited, the statutory requirement of Part VII will be defeated. The Court thus quashed the entire proceedings on the ground that the acquisition was made for the company and that the State Government had not followed the procedure for acquisition of land for private company under Chapter VII of the Act. The matter is pending in appeal in Supreme Court.
13. In the present case, it is not denied that the acquisition of land for the purpose of constructing residential houses for the district headquarter, is a public purpose. It is not open to the petitioner to question of application of sub section (1) of Section 17 with sub-section (4) of Section 17 for acquisition dispensing with requirement of Section 5A after he has voluntarily accepted the compensation after signing the agreement under the Agreement Rules of 1997.
14. Learned counsel for the petitioner has lastly submitted that the compensation under the Agreement Rules of 1997 was accepted under protest, which will not deprive him of the right to challenge the acquisition of his right. We do not agree. The very object of the making of the Agreement Rules of 1997, and the settlement under which the amount of compensation is determined and the form of agreement does not give any scope for acceptance of compensation under protest. If the petitioner was not interested for receiving the compensation under the Agreement Rules of 1997, he could have waited for award and in that case it was open to him to accept the compensation as determined by the Special Land Acquisition Officer, under protest. After accepting the compensation under the Agreement Rules of 1997 the petitioner does not have any right to turn back and to challenge the acquisition on any ground, other than fraud or misrepresentation.
15. In the facts and circumstances, we find that the petitioner, having accepted the compensation after entering into an agreement under the Agreement Rules of 1997 does not have any right left to challenge the acquisition on the ground that he was not heard by applying the provisions on the urgency clause in the proceedings.
16. The writ petition is dismissed.
Order Date :- 13.5.2011 RKP