Parash Nath Agarwal And Others vs State Of U.P. And Others
2012 Latest Caselaw 543 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

				A.F.R.				Reserved
 
Case :- WRIT - C No. - 24487 of 2006
 
Petitioner :- Parash Nath Agarwal And Others
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- Prabhakar Dubey,V.C. Mishra,Vivek Mishra
 
Respondent Counsel :- C.S.C.,Vivek Saran
 

 
Hon'ble R.K. Agrawal,J.

Hon'ble Vinay Kumar Mathur,J.

(Delivered by Hon. V.K. Mathur, J.)

We have heard Sri V.C. Mishra, learned senior advocate assisted by Sri Vivek Mishra advocate for the petitioners and Sri Madan Mohan appearing for respondent No. 2. Respondents Nos 1 and 3 are represented through learned Standing Counsel.

Brief facts giving rise to the instant writ petition are that plot nos 22, 23, 24, 25, 26, 27 and 28 of village Civil Station, Tehsil and District Basti situate in Katra Grihsthan, Basti were taken on lease by Sri Laxmi Narayan, father of the petitioners on 22.2.1918 for a period of 90 years which was to be renewed after every 30 years. The lease continued in the name of Laxmi Narayan till he died on 11.11.1979. Prior to his death, he had applied for renewal of the lease which was expiring on 22.2.1978. After the death of Laxmi Narayan, his wife Smt. Krishna Kumari, mother of the petitioners was substituted in place of her deceased husband and the lease was renewed vide Government Order dated 18.3.1985 in her name w.e.f. 22.2.1978 for a period of 30 years. The lease period according to the petitioners was to an end on 18.2.2008. The land has been described to be Nazul land and copies of renewal granted for the lease and Government Order of renewal dated 18.7.1985 have been filed as Annexures-10 to 12-A to the writ petition. That on 16.5.1980, the officers/servants of Respondent No. 2 came to the petitioners' land and threatened to cut trees standing on the land in dispute. To this the petitioners put resistance and an FIR was lodged against the petitioners at Police Station Kotwali, District Basti by Assistant Engineer, Avas Evem Vikas Parishad. In the criminal case, the petitioners after contest were acquitted by the judgment dated 20.8.1983. The petitioners have further stated that Smt. Krishna Kumari, mother of the petitioners filed Original Suit No. 234 of 1980 in the court of Civil Judge, Basti challenging the validity of notifications under Sections 28 and 32 of the U.P. Avas Evem Vikas Parishad Adhiniyam, 1965 (hereinafter referred to as Adhiniyam 1965) and Section 17 of the Land Acquisition Act. The suit was dismissed vide judgment and decree dated 13.9.1990 of Civil Judge, Basti. Aggrieved from the judgment and decree, an appeal was preferred which was registered as Civil Appeal No. 47 of 1990 wherein the petitioners were substituted as appellants in place of the deceased mother Smt Krishna Kumari. The Additional District Judge, Basti vide his judgment and decree dated 31.3.2006 dismissed the appeal also holding that civil suit was not maintainable and as such the appeal was also not tenable. Copies of the judgment of the Trial Court and Appellate Court have been filed as Annexures-6 and 7 to the writ petition. It has also been stated on behalf of the petitioners that both the courts had granted interim injunction restraining the respondents from cutting the trees or dispossessing the petitioners from the disputed land. These orders lasted till the disposal of the civil appeal. The petitioners have further contended that despite restraint orders, Respondent No. 2 willfully and in flagrant violation of the orders of the court, constructed a road on certain portions of plot nos. 27 and 28 situate in village Civil Lines/Civil Station, Katra Grihsthan, Basti. The petitioners after judgment of the Appellate Court wanted to prefer second appeal in the High Court but their counsel advised against it as the judgment of the court below was in his opinion sound and no suit challenging the validity of the land acquisition notification was maintainable. In this view of the matter, writ petition has been filed.

Further contentions of the petitioners is that it is to be adjudicated whether the Nazul land owned by the State Government can be acquired by U.P. Avas Evam Vikas Parishad invoking the provisions of Sections 28 and 32 of U.P. Avas Evam Vikas Parishad Adhiniyam and Section 17 (as amended in Land Acquisition Act). The application of Section 45 of the Adhiniyam 1965 in case of transfer of land by the State Government to U.P. Avas Evam Vikas Parishad for the purpose of scheme or management etc. have also to be looked into. The petitioners have further stated that the land in dispute was Nazul land on the date when the notifications under Sections 28 and 32 of Adhiniyam 1965 and Section 17 of the Land Acquisition Act were issued and could not have been transferred to the Board under Section 43 and the entire proceeding with regard to the Land Acquisition Act are illegal and as such not sustainable. The petitioners have also stated that the provisions of Chapter VI of Adhiniyam 1965 and the constitution of the Tribunal under Section 64 and transfer of pending cases to the Tribunal under Section 65 and the finality of decision of Tribunal under Section 66 etc. have not been complied with. The petitioners have stated that the area of the total land leased out to them of plot nos. 22 to 28 is 4 Bighas 11 Biswas out of which approximately 1 Bigha 10 Biswas land has been acquired and out of the acquired land only a road has been constructed and the vacant land of this portion also is in actual physical possession of the petitioners and the trees of the petitioners are standing over it. The dispute is confined only to portions of plot nos. 26, 27 and 28. The petitioners have prayed that notification dated 31.7.1972 under Section 28 of Adhiniyam 1965, Annexure 1, notification dated 27.6.1978 under Section 32 Adhiniyam 1965, Annexure 2 and notification dated 29.1.1979 under Section 17 of the Land Acquisition Act, Annexure 3 be quashed. Further mandate has been sought against respondents directing them not to interfere in the possession and use of the disputed land situate in parts of plots no. 26, 27 and 28.

In the counter affidavit filed by Sri Hari Narayan Singh, Assistant Engineer, U.P. Avas Evam Vikas Parishad, Gorakhpur it has been submitted that Adhiniyam 1965 is a self-contained code and land in question has been acquired under the provision of the said Act by U.P. Avas Evam Vikas Parishad. The notification under Section 28 of the Adhiniyam 1965 has been issued on 31.7.1972 which was followed by a declaration dated 27.6.1978 issued under Section 32 of the Adhiniyam 1965. The said notifications are similar in nature to the notifications issued under Sections 4 and 6 of the Land Acquisition Act. It has been further averred that while acquiring the said land urgency provision of Section 17(1) of the Land Acquisition Act was also invoked vide notification dated 29.1.1979. Thereafter, the possession of the land in dispute had also been taken by the Parishad-vide possession memo dated 9.12.1979 copy of which is annexed as Annexure CA-1 to the counter affidavit. Further contention of the contesting respondents in the counter affidavit is that since the notifications issued under Sections 28 and 32 of the Adhiniyam 1965 were duly published, therefore, the petitioners can not take the plea that the proceeding came to the knowledge on 16.5.1980 when the respondents went on the spot. It has also been stated that after taking possession of the land in dispute on 9.12.1979, the Parishad through its officials started undertaking development on the land in dispute and when the petitioners started encroaching upon the land in dispute and misbehaved with the officials of the Parishad, an FIR was lodged against them. The original suit and appeal were dismissed and the notifications issued under Sections 28 and 32 of the Adhiniyam 1965 still holds good and no illegality or irregularity has been detected. The laches cannot be said to be bona fide as notification was issued in 1972 and the petition was filed in the year 2006 with an inordinate delay of about 34 years. The allegations that the officials of the Parishad has violated the injunction order of the courts below has been denied. It has been stated that the Trial Court has itself permitted that if desired the U.P. Avas Evam Vikas Parishad may undertake the construction work at their own risk. It has been stated that the Parishad for a planned development has acquired the land in dispute which is required for undertaking a scheme. It has been emphatically denied that the Nazul land cannot be acquired for the benefit of the Parishad. Since the notification under Section 28 of the Adhiniyam 1965 was issued to acquire the land in 1972, therefore, the petitioners have no right to get the lease of the land in dispute renewed after the expiry of its term on 22.2.1978. Further no lease is in existence in favour of the petitioners w.e.f. 18.2.2008. No cause of action has accrued on the petitioners under Section 64 of the Adhiniyam 1965. The petitioners are not in actual and physical possession of any portion of the land in dispute.

In the rejoinder affidavit the petitioners have contended that the after the death of Sri Laxmi Narayan, the possession of the land was with the petitioners, therefore, under Section 17(1) of the Land Acquisition Act taking possession from a dead person i.e. Laxmi Narayan was improper and illegal. It is also to be determined whether the Government Grants Act or the Land Acquisition Act will apply in respect to the disputed land.

It is also to be seen that Notifications under Sections 28 and 32 of the Avas Evam Vikas Parishad cannot divest the State which was the owner of the land, tThe rights which it possessed and as such any right cannot be conferred upon the Parishad to interfere in any matter related to the land. It has further been contended that in the counter affidavit it has been wrongly shown that possession of the land was taken on 17.12.1979 from Sri Laxmi Narain while in fact he had died on 11.11.1979. Further the lease in favour of Laxmi Narain expired on 22.2.1978 and its renewal was pending with the State Government. In view of the G.O. Dated 21.2.1981, such land belongs to the State and the land of the State cannot be acquired. In the notification under Section 28 instead of village Civil Station, the name of the village was wrongly mentioned and the scheme remained dormant till 27.7.1978 when declaration under Section 32 of the Adhiniyam was published. Another Government Order dated 25.9.1986 has been quoted and has been filed as Annexure-RA-1 to the rejoinder affidavit. It has also been contended that the Parishad has not raised the matter of validity of the lease deed of the petitioners.

Sri V.C. Misra, learned Senior Counsel appearing for the petitioners has submitted that the lease of the disputed plots along with some other plots situate in village Civil Station district- Basti were taken by late Laxmi Narain, father of the petitioners on 22.2.1918 for a period of 90 years which was to be renewed after every 30 years. Plots' lease continued in the name of Laxmi Narain till 11.11.1979 and a renewal application was pending at the time of his death. The lease was renewed vide order dated 18.3.1985 w.e.f. 22.2.1978 for a further period of 30 years. Learned counsel has further submitted that the lease was executed by the State Government and the land leased out was Nazul Land. The petitioners continued in possession and when the officials of the Parishad interfered in their possession, they were obstructed by the petitioners and a criminal case was filed which ended in acquittal. Learned counsel has vehemently argued the point that Nazul land cannot be acquired by the Parishad as per the Government Orders dated 21.2.1981 and 25.9.1986. Further submission is that Sections 28 and 32 of the Adhiniyam 1965 have been incorporated with certain modifications of the provisions of the Land Acquisition Act relating to acquisition. The land for the use of Parishad is to be acquired by the State Government and the State Government cannot acquire its own land. Learned counsel has further contended that the notifications under Sections 28 and 32 were challenged through a regular civil suit in the court of Civil Judge, Basti in 1980 which was dismissed and the appeal thereof was also dismissed in 2006. Thereafter the petitioners were advised that they have been pursuing in the wrong forum and the acquisition notifications cannot be challenged through a civil suit. Thereafter the writ petition has been filed in 2006, as such there is no delay or laches on the part of the petitioners as under the wrong legal advice, they had been pursuing the proceeding in wrong forum. Further, they learnt about the acquisition proceeding only when the officials of the Parishad attempted to interfere in their possession on 16.5.1980 and criminal proceedings were drawn against them. Only a road has been constructed by the Parishad in a small portion of the plots no. 26, 27 and 28 and the petitioners continue to be in possession on the remaining land of the said plot numbers and other plots which were leased out to their father and mother.

In support of the arguments learned counsel has placed reliance on Special Land Acquisition Officer , Bombay Vs. Gordrej and Boyce 1987 AIR (SC) 0-2421, Smt. Shakira Khatoon Kazmi Vs. State of U.P. and others 2002 (46) AIR 276, State of Jammu and Kashmir Vs. Sanahulla Mir (1980) 3 SCC 272, Sharda Devi Vs. State of Bihar and another (2003) 3 SCC 128 and Nagpur Improvement Trust Vs. Basant Rao and others (2002) 7 SCC 657.

Sri Madan Mohan, learned counsel for the respondents no.1 and 3 has submitted that Adhiniyam 1965 is a self-contained code and the disputed land has been acquired by the Parishad under the provisions of the said Act. The notification under Section 28 of the Adhiniyam 1965 was issued on 31.7.1992 which was followed by a declaration under Section 32 dated 27.6.1978 while acquiring the land, urgency provision of Section 17 (1) of Land Acquisition Act 1894 was also invoked-vide Notification dated 29.1.1979. Learned counsel has further submitted that actual possession of the disputed land had been taken by the Parishad w.e.f 9.12.1979. The notifications were duly published therefore, the petitioners cannot take plea that they learnt about the proceeding only on 16.5.1980. Parishad after taking possession of the land undertook development. However, the petitioners started encroaching upon the land and misbehaved with the officers and FIR was lodged. Further submission is that the original suit filed in the Court of Civil Judge, Basti challenging the notifications under Sections 28 and 32 of the Adhiniyam 1965 was dismissed and the appeal was also dismissed finally in 2006. Thereafter, the present writ petition has been field. The Notification under Section 28 of the Adhiniyam 1965 has been challenged with an inordinate delay of 34 years and because of the delay and laches on the part of the petitioners, the writ petition deserves to be dismissed. It cannot be an excuse that they had no knowledge of the publication of the notifications. The trial court had permitted the Parishad that it may undertake the construction at their own risk and in this view, the road was constructed. The land in dispute has been acquired for the land development for undertaking schemes. The lease period of 90 years has already expired and no renewal has taken place after 22.2.1978. The petitioners are out of possession. There is no impediment that Nazul land cannot be acquired. Learned counsel has placed reliance on Aflatoon and others Vs. Lt. Governor of Delhi and other (1975) 4 SCC 285, Hari Singh Vs. State of U.P. and others, (1984) 2 SCC 624, Municipal Corporation of Greater Bombay Vs. IDI 1996 (11th) SCC 501, State of Rajasthan Vs. D.R. Laxman and others (1996) 6 SCC 445, Northern India Glass Industries Vs. Jaswant Singh and others (3) 1 SCC 335, Haryana State Handloom and Hindi Grove Corporation Ltd. and another Vs. Jain School Society (2003) 12 SCC 538, Sawarn Lata and others Vs. State of Haryana and others (2010) 4 SCC 532, Swaika Properties Pvt. Ltd. Vs. State of Rajasthan and others 2008 SCC 1494, Om Prakash Vs. Union of India (2010) 4 SSC 17, Kiran Tandon Vs. ADA and another AIR 2004 SC 2006 and Satendra Prasad Jain Vs. State of U.P. (1993) 4 SCC 369.

First, we take up the case laws relied upon on behalf of the petitioners:-

In Special Land Acquisition Officer, Bombay Vs. Godrej and Boyce relied upon by the learned counsel for the petitioner which relates to Section 48 of Land Acquisition Act, 1894 it was observed that after issuing notification regarding the acquisition of land in question no further steps were taken and meanwhile the land was encroached. On this ground the taking over of possession was declined while the respondents asked the Government to acquire the land and pay the compensation. It was held that issuance of notice of acquisition of land does not make it binding on the Government to acquire it.

Further held that neither the notification under Section 4 nor the declaration under Section 6 nor the notice under Section 9 is sufficient to divest the original owner or the other person interested in the land of his rights therein. The title vests in the Government only when possession is taken by the Government.

In Shakira Khatoon Kazmi Vs. State of U.P. and others relied upon by the petitioners it has been held that the Government cannot acquire ownership of its own land. It has been held that if the Government at any time required to re-enter the plot, which it has leased out, it can do so on paying the cost of the building/construction etc. that may be on the site provided such a stipulation is incorporated in the agreement and in such eventuality Government will be liable to pay compensation of the constructions etc. There is a reference of general order of the State Government and a circular dated 11.2.1998 by the Director, Land Acquisition, Board of Revenue, U.P. in the judgment wherein the officials have been directed that land belonging to the State Government, Nazul land, Gram Sabha Land and land declared as surplus in ceiling proceedings are outside the purview of Land Acquisition Act and no proposal should be made for acquisition of such types of land. It has been held in this judgment that possession can be resumed by the Government only in a manner known or recognized by the law.

In State of Jammu and Kashmir Vs. Sanahullah Mir, also relied upon by the petitioners, it has been held that acquisition of State's own land is a nullity.

In Sharda Devi Vs. State of Bihar cited on behalf of petitioners it has been held that the State does not acquire its own land or its futile to exercise the power of eminent domain for acquiring rights in the land which already vests in the State. The court has further held that it would be absurdity to comprehend the provisions of the Land Acquisition Act being applicable to such land wherein the ownership or the entirety of rights already vests in the State.

As regards the judgment in Nagpur Improvement Trust Vs. Basantrao and others on which much emphasis has been laid on behalf of the petitioners it has been held that the provisions of Land Acquisition Act, 1894, particularly Section 6, 23(2) and 28 thereof have been incorporated in the three State Acts viz. the Punjab Town Improvement Act, 1922, The Nagpur Improvement Trust Act 1936 and U.P. Awas Evam Vikas Parishad Adhiniyam 1965. In this case the decision rendered in U.P. Awas Evam Vikas Parishad Vs. Jainul Islam, (1998) 2 SCC 467 has been followed.

On the other hand, the following are the case laws relied upon on behalf of Respondent-Parishad:-

In Aflatoon and others Vs. Lieutenant Governor of Delhi and others (supra) it has been held that there was no reason why the petitioners should have waited till 1972 to come to the court for affording the validity of notification issued in 1959 on the ground that particulars of public purpose were not specified. The Court further held that valid notification under Section 4 is a sine qua non for initiation of proceedings for acquisition of property. The court further held that to have sat on the fence and allowed the Government to complete the acquisition proceedings on the basis that the notification under Section 4 and the declaration under Section 6 were valid and then to attack the notification on grounds which were available to them at the time when the notification was published would be putting a premium on dilatory tactics.

In Hari Singh Vs. State of U.P. and others, the dismissal on the ground of delay of 2-1/2 years for not being aware about notification till notices under Section 9(1) issued by the High Court of the petition in limine, was found proper by the Apex Court.

In Municipal Corporation of Greater Bombay Vs. IDI it was held on the point of delay and laches that once acquisition proceeding is complete and land vests in the State free from all encumbrances proceedings become final and not open to challenge under Article 226 of the Constitution of India on ground of non-compliance with any statutory requirement etc.

In State of Rajasthan Vs. D.R. Laxmi and others it has been held that land vesting in Government and acquisition proceedings having become final notification under Section 4(1) and declaration under Section 6 cannot be quashed. It has been further held that in view of delay and laches a void order need not be set at naught if the party does not approach the court within a reasonable time.

In Northern India Glass Industries Vs. Jaswant Singh and others, also relied upon by the respondent Parishad, it has been held that delayed filing of writ to challenge notifications after 17 years after date of award the High Court was incorrect in allowing the writ petition of respondents without they took action only for enhancement of compensation.

In Haryana State Handloom and Hnadicrafts Corporation Ltd. and another Vs. Jain School Society on the ground of delay in challenging the acquisition the Apex Court did not approve the judgment of the High Court and held that the cause shown cannot afford the petitioners an excuse to justify delay and laches on their part in filing the writ petition.

In Sawaran Lata and Others Vs. State of Haryana and others it has been held that challenge to notification under Section 4 and 6 should be made within reasonable time and notifications cannot be challenged at belated stage.

In Swaika Properties Private Ltd. Vs. State of Rajasthan and others it was held that when a writ petition was filed after possession has been taken and where it become final the same was liable to be dismissed for delay and laches.

In Om Prakash Vs. Union of India and others it has been held that delay of 20 years in challenging Section 4 notification or Section 6 declaration even if the appellants under bonafide mistake that during subsistence of stay they were not supposed to take any legal action, it was held that it will be of no help and the decision of the High Court was found justified in not entertaining the same after such long delay.

From the perusal of case laws relied upon by the learned counsel for the parties, we are of the considered opinion that as in the instant petition all the three notifications under challenge are more than 30 years old and the ground that proceedings in civil courts were initiated by the petitioners and finally after a prolonged litigation which stared from 1980 they could realise in 2006 that they were pursuing in wrong Forum, in view of the judgment in Om Prakash Vs. Union of India (supra) cannot be a justifiable ground for condoning the delay or laches on the part of the petitioners. At the initial stage also the ground that they could know about the acquisition proceedings only in 1980 when the officials of the Parishad attempted to interfere in their possession also does not appear to be convincing. It cannot be left open at the will of the petitioner to challenge the notification (publication whereof appears to have been made duly) at any given point of time, after such a long gap and set the proceedings which were finalized almost 30 years back to naught. In this view of the matter, we are not entering into the merits and the grounds, which have been raised by the petitioner in the petition. Though some of them might have been good grounds but the petitioners are themselves to be blamed for the delay and laches on their part. Our view is further fortified by various judgments which have been relied upon on behalf of the respondents. In this view of the matter, the writ petition deserves to be dismissed purely on the ground of delay and laches on the part of the petitioners.

The writ petition is dismissed.

No order as to costs.

April 20th, 2012

V.Sri/-