Ram Bhool vs State Of U.P. And Others
2012 Latest Caselaw 5427 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										AFR
 
										Reserved 
 
		Civil Misc. Writ Petition No.  17446 of 2011
 
Ram Bhool.		....		.....		.....		Petitioner
 
					Versus
 
State of U.P. and others     .....  		........		...	Respondents
 
					Present:
 
	 Hon'ble Mr. Justice Amitava Lala,Acting Chief Justice, &
 
	Hon'ble Mr. Justice Pradeep Kumar Singh Baghel.
 
				         Appearance:
 
       For the Petitioner  	   : J.J.Munir,  Abrar Khan.
 
       For the Respondents	   : 	C.S. C.,Ashwini Kumar Mishra
 
					-----

By the Court- The petitioner has preferred this writ petition for the issuance of a writ of mandamus declaring the proceedings under Land Acquisition Act for acquisition of his agricultural land illegal, on the ground that entire acquisition proceedings stood lapsed in terms of Section 11-A of the Act.

A brief reference to the material facts would suffice;

The petitioner claims to be an owner of Bhumidhari land comprising of khasra plot nos. 546, 547 and 562 each admeasuring total area of 1.5 bhigha, 1 bigha 2 biswa and 3 Viswansi and 2.2 bighas respectively. In terms of yard, it comes to 6000 square yards. The said plots situate in village Harsuan, Tehsil and district Ghaziabad. The State Government issued a notification dated 16.8.1988 under Section 4 (1) read with Section 17 (4) of the Land Acquisition Act, 1894 ( for short the Act). By the said notification a total area of 515 bigha and 3 Viswa was proposed to be acquired in the village Sadarpur, Harsaun and Dasana District Ghaziabad.

The purpose of acquisition shown in the notification was planned development of Sector- 29 by Ghaziabad Development Authority. The petitioner has placed on record the said notification as annexure-1 to the writ petition.

On 30th October, 1988, a notice under Section 6 of the Act was issued covering the entire area proposed to be acquired through the notification under Section 4 of the Act issued earlier. The notification under Section 6 provided that the Collector shall take the possession of the said land in terms of Section 17 (1) of the Act and the possession of the land was to be taken after 15 days of publication of notification under Section 9 Sub-section (1) of the Act. A copy of Section 6 of the notification is a part of the writ petition as annexure-2.

The petitioner challenged both the notification viz. Under section 4 and 6 of the Act by means of a writ petition no. 24500 of 1988. On 16th December, 1988 an interim order was passed wherein the respondents were directed from either demolishing the construction of the petitioner, if any, standing at plot nos. 564, 547 and 562 having an area of 6000 square yards.

The petitioner made some applications to the State Government that land in dispute may be absorbed as parts of development authority's Housing Scheme.

It is stated that the State government passed an order on 18.11.1992 which was not complied with by the Vice Chairman of the development authority, which gave rise to another cause of action to the petitioner to file subsequent writ petition no. 33074 of 1999, wherein prayer for a direction to the State Government to exempt/absorb the land in dispute as the parts of the respondent development authority's Housing Scheme.

On 17.7.2003, this Court dismissed both the writ petitions of the petitioner along with the lead writ petition no. 33074 of 1999.

Feeling dissatisfied with the order of this Court, the petitioner filed a Special Leave Petition (Civil) No. 15457 of 2004. An interim order was passed on 26.7.2004 by the Supreme Court which is stated to be extended from time to time. The said Special Leave Petition came to be dismissed on 2.5.2005. A copy of the said order is placed on record as annexure-7 to the writ petition. A review application was filed in Special Leave Petition which was also rejected on 12.2.2009. The petitioner had filed one more writ petition No. 8006 ( M/B)/2009 before this Court at Lucknow Bench, some time in December, 2009. In the said writ petition, the relief sought by the petitioner was in respect of the compliance of the order of the State Government such as dated 18.11.1992, 17.7.1997, 24.2.2003, 12.8.2008 and 28.1.2009 for a direction to the Collector/ District Magistrate, Ghaziabad to comply with the said orders and not to demolish the construction of khasra plot nos.546, 547 and 562.

The said writ petition was disposed of with liberty to the petitioner to file a representation before the State Government for redressal of his grievance.

It is stated that the State Government instead of taking any decision on the said representation, issued an advertisement on 14.10.2009 which was published in Hindi daily Newspaper, 'Dainik Jagran' for auction of the plots.

Aggrieved by the said action, the petitioner has filed another writ petition 10164 (M/B)/2009 before this Court at Lucknow Bench. In the meantime, the State Government rejected the representation of the petitioner dated 9.9.2009 and the petitioner moved an application for withdrawal of the said writ petition.

The petitioner's further case is that no award has been made in respect of the land in dispute and as such acquisition proceedings stood lapsed in terms of Section 11-A of the Act on the ground that a period of more than five years have been lapsed since the date of publication of notification under Section 6 of the Act.

The respondent no. 4 has filed a counter affidavit. The stand taken by respondents is that the notification under Section 4 read with Section 17 (4) of the Land Acquisition Act was issued on 16.8.1988 and the notification under Section 6/17 of the Act was issued on 30.10.1988. It is stated that as urgency Clause of the Act was invoked and the possession of the acquired land was taken and transferred to Ghaziabad Development Authority on 14th December, 1988. A copy of possession memo dated 14.12.1988 has been placed on record. The amount of compensation was deposited by the Development Authority with the office of Collector. That an award in respect of the land acquired under the impugned notification had been issued by the office of Special Land Acquisition Officer/Collector. The award in respect of petitioner's land was not declared although it had already been prepared in respect of other tenure holders. It is also stated that compensation was also disbursed to large number of tenure holders where no stay order was operative. However, in case of petitioner, on account of stay order passed at the instance of the petitioner, actual delivery of award in respect of the petitioner's land had to be withheld; as he had filed successive writ petitions which had all been dismissed; since the urgency clause under Section 17 of the Act has been invoked in the present case and possession has been taken from the petitioner on 14.12.1988 itself. Therefore, after taking possession the acquired land has been vested in the State Government free from all encumbrances and the provision of Section 11-A would not apply to such situation. Further stand of the respondent is that the petitioner in his writ petition nos. 8866 (M/B)/2009 did not take plea of Section 11-A of the Act as the said point was available to him and those writ petitions stood dismissed. Therefore, the present writ petition is barred by the principles of constructive res-judicata.

We have heard Sri J.J.Munir, learned counsel appearing for the petitioner, Sri A.K.Mishra appearing for the respondent no. 4 and learned Standing Counsel.

Sri J.J.Munir submitted that as the period of more than five years had elapsed after publication of declaration under 6 of the Act and no award was made by the Collector under Section 11 of the Act, even after excluding the period during which the stay orders were operating in favour of the petitioner. The acquisition stood lapsed in view of Section 11-A of the Act. He placed reliance on a judgment of this Court in Megh Singh Vs. State of U.P. reported in 2011 (1) AWC 603.

Sri A.K.Mishra has submitted that provision of Section 11 -A of the Act would not be applicable in this case as Section 17 (1) of the Act has been applied and possession has already been taken after the notification under Section 6 of the Act. He has further urged that the award was made in respect of other tenure holders who had not filed the writ petitions. The petitioner had filed successive writ petitions and got interim orders and as such the award was prepared but it was not declared in compliance of the orders passed in writ petitions filed by the petitioner. In case of large number of tenure holders, the awards have been made and compensation have already been disbursed to them.

We have considered the rival submissions made by the respective parties and perused the record.

Indisputably, in the notification issued under Section 4 and 6 of the Act, the Section 17 (1) of the Act has been invoked and Section 5-A of the Act has been dispensed with. It is stated that possession has been taken and transferred to Ghaziabad Development Authority on 14.12.1988. A possession memo has already been placed on record as annexure-1 to the counter affidavit, wherein, it is recorded that on the said date possession of 515 Bighas and 3 Biswas was taken and transferred to Ghaziabad Development Authority.

We have no reason to disbelieve the statement made in the counter affidavit and the possession memo dated 14.12.1988 which is part of the record. The issue with regard to the applicability of Section 11-A of the Act in case where urgency clause has been invoked is no more res-integra. The Supreme Court in the case of Satendra Prasad Jain Vs. State of U.P. reported in (1993) 4 SCC 369, relying on a judgment of Rajasthan Housing Board Vs. Shri Kishan reported in (1993) 2 SCC 84 held that Section 17 (1) of the Act is applied by reason of urgency and if the possession is taken, the owner is divested of his title. Consequently, the land is vested in the Government. The Supreme Court in the said case laid down the law in following terms;

"15. Ordinarily, the Government can take possession of the land proposed to be acquired only after an award of compensation in respect thereof has been made under Section 11. Upon the taking of possession the land vests in the Government, that is to say, the owner of the land loses to the Government the title to it. This is what Section 16 states. The provisions of Section 11-A are intended to benefit the landowner and ensure that the award is made within a period of two years from the date of the Section 6 declaration. In the ordinary case, therefore, when Government fails to make an award within two years of the declaration under Section 6, the land has still not vested in the Government and its title remains with the owner, the acquisition proceedings are still pending and, by virtue of the provisions of Section 11-A, lapse. When Section 17(1) is applied by reason of urgency, Government takes possession of the land prior to the making of the award under Section 11 and thereupon the owner is divested of the title to the land which is vested in the Government. Section 17(1) states so in unmistakable terms. Clearly, Section 11-A can have no application to cases of acquisitions under Section 17 because the lands have already vested in the Government and there is no provision in the said Act by which land statutorily vested in the Government can revert to the owner."

The aforesaid judgment has been followed by the Supreme Court in the case of Awadh Bihari Vs. State of Bihar, 1995 (6) SCC 31 and in Allahabad Development Authority Vs. Nasiruzzaman, ( 1996) 6 SCC 424. The Supreme Court answered the question as follows;

"....This question was examined by this Court in Satendra Prasad Jain v. State of U.P. and Awadh Bihari Yadav v. State of Bihar(SCC at p. 38) and held that Section 11-A does not apply to cases of acquisitions under Section 17 where possession was already taken and the land stood vested in the State. The notification under Section 4(1) and declaration under Section 6 do not lapse due to failure to make an award within two years from the date of the declaration. The view of the High Court is erroneous in law."

The judgment of Supreme Court in the case of Satendra Prasad Jain was followed by the Full Bench of this Court in Gajraj Singh and others Vs. State of U.P. and others, 2011 (4) U.P.L.B.E.C 3102. The relevant para of the Full Bench is extracted herein below;

"372. Learned counsel for the petitioners have submitted that after publication of declaration under Section 6 of the Act, in none of the cases award has been made under Section 11 within two years from the date of publication, hence, the entire proceedings for acquisition of the land has lapsed. Section 11 A of the Act is as follows:

11A. Period within which an award shall be made.--(1) The Collector shall make an award under Section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse:

Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984 the award shall be made within a period of two years from such commencement.

373. Learned counsel for the respondents refuting the submission made by counsel for the petitioners contends that in all the acquisitions under challenge Section 17(1) was invoked and the possession was taken of the land after issue of notice under Section 9 and land has vested in the State under Section 17 sub-section (1) hence Section 11-A has no application.

374. Learned counsel for the respondents submitted that Section 11 A applies in the cases where Section 17 has not been invoked and in cases where Section 17 has been invoked, there is no applicability of Section 11-A.

375. Learned counsel for the respondents has placed reliance on the judgments of the Apex Court of Satendra Prasad Jain v. State of U.P.,MANU/SC/0392/1993: 1993 (4) SCC 369 and Banda Development Authority v. Motilal Agarwal, MANU/SC/0515/2011: 2011 (5) SCC 394."

Learned counsel appearing for the petitioner has relied upon a judgment of Megh Singh Vs. State of U.P. In the said case the dispute was with regard to the possession of the land which was sought to be acquired and no award was made under Section 11 of the Act. The case of the petitioner, therein, was that he was Bhumidhar owner of the land with transferable right admeasuring 0.0800 and 0.4260 hect. The notification under Section 4 (1) read with Section 17(4) of the Land Acquisition Act was made on 9.8.2004 and the declaration under Section 6 read with Section 17(1) of the Act was published on 3.8.2005. However, the possession of the land in question was not taken and the petitioner continued to be in possession. His further case was that till filing of the writ petition no award was made under Section 11 of the Act. In the present case, a huge track of land of 515 Bighas and 3 Biswas have been acquired and the possession memo indicates that the possession was taken on 14.12.1988 and it was transferred to Ghaziabad Development Authority and the awards in respect of other tenure holders were made and the compensations were also disbursed with. For the said reason, the law laid down in Megh Singh case has no application in the fact of the present case. The Supreme Court in the case of Banda Development Authority, Banda Vs. Moti Lal Agarwal, ( 2011) 5 SCC 394 has laid down the law in respect of possession of the acquired land. The paragraph 37 of the judgment is relevant for the issue involved in the present case which reads as under;

"37. The principles which can be culled out from the abovenoted judgments are:

(i) No hard-and-fast rule can be laid down as to what act would constitute taking of possession of the acquired land.

(ii) If the acquired land is vacant, the act of the State authority concerned to go to the spot and prepare a panchnama will ordinarily be treated as sufficient to constitute taking of possession.

(iii) If crop is standing on the acquired land or building/structure exists, mere going on the spot by the authority concerned will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the authority concerned will have to give notice to the occupier of the building/structure or the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchnama. Of course, refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken.

(iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures on such document.

(v) If beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3-A) and substantial portion of the acquired land has been utilised in furtherance of the particular public purpose, then the court may reasonably presume that possession of the acquired land has been taken."

In the present case also there is a large track of the land of 515 bighas and 3 Viswas and as such it was not possible for the State Authority to take physical possession of each and every plot of land and as held by the Supreme Court the symbolic possession was sufficient.

After careful consideration of the material available on record, we found that submission of learned counsel appearing for the petitioner, Sri Sri J.J.Munir, hardly merit acceptance. For the reasons recorded herein above, we find no merit in writ petition and the same is accordingly dismissed.

No order as to costs.

(Justice Amitava Lala,A.C.J.)

I agree

( Justice P.K.S. Baghel)

Dated:-2.11.2012.

Gss