Vijay Gopal vs U.P.Awas Evam Vikas Parishad & 5 ...
2013 Latest Caselaw 3638 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
RESERVED
 

 
Writ Petition No. 3255 (MB) of 2004
 

 
Vijay Gopal						...	Petitioner
 
					
 
Versus
 

 
U.P.Awas Evam Vikas Parishad 
 
and others						...	Opposite parties 
 

 
A N D
 

 
Writ Petition No. 493(MB) of 2004
 

 
Vijay Gopal						...	Petitioner
 
					
 
Versus
 

 
U.P.Awas Evam Vikas Parishad 
 
and others						...	Opposite parties 
 

 
------------- 
 

 
Hon'ble Rajiv Sharma, J.

Hon'ble Saeed-Uz-Zaman Siddiqi, J.

Heard Sri Niraj Kumar Srivastava, Counsel for the petitioner and Sri A.P.Singh, Counsel appearing for respondents.

Factual matrix of the case is that the petitioner is the owner in possession of plot Khasra Nos. 569, 572, 573 and 578 by virtue of a registered sale deed dated 20.12.1968 having been executed in the name of the petitioner and his father-in-law late Shri Prem Swaroop. Both were partners in the partnership firm which is under the name and style of M/s Gopal Cold Storage. The father-in-law of the petitioner, since deceased, withdrew from the partnership as a consequence of which all the four plots stood vested in the petitioner who remained the undisputed and sole owner in possession of the said plots till date. Petitioner, who was running a Cold Storage, also started another business under the name and style of M/s Gopal Auto Enterprises in the year 1981 and the said firm is engaged in the business of automobile. In order to start the said business, certain necessary extra construction work is to be done and as such the petitioner applied to Lucknow Development Authority for sanctioning his building plans. The said plans were sanctioned vide permit no. 552-A dated 19.12.1980. When the petitioner was raising the constructions in accordance with the sanctioned plan, the authorities of the Board issued a letter dated 20.5.1981 requiring the petitioner to indicate as to how he had raised the constructions without proper sanction. In response to the said letter, the petitioner vide communication dated 5.6.1981 appraised the Board that the Building plans had been sanctioned by the Lucknow Development Authority. After receipt of the reply so submitted by the petitioner, the Board did not raise any further objection and as such the construction was duly raised and completed as per the plan approved by the Lucknow Development Authority.

As regards the execution proceedings, learned Counsel for the petitioner submitted that a notification under Section 28 of the U.P. Awas Evam Vikas Parishad Adhiniyam, 1965 [hereinafter referred to as the Act] was issued on 20.12.1969 for acquiring the land for the Bastauli-Ghazipur Scheme, Lucknow. On 19.1.1970, notice was issued under Section 29 of the Act inviting objections from the tenure holders, in response to which the petitioner filed detailed objections inter alia to the effect that on the land in question, i.e. plot Khasra Nos.569, 572, 573 and 578, the Cold Storage is already existing in the name and style of M/s Gopal Cold Storage and as such, the aforesaid land may be exempted from acquisition. According to petitioner, after the objections the possession of the land was not taken and from the communication dated 20.6.1988 (Annexure 4 to the writ petition) received from the office of Special Land Acquisition, Lucknow, it was unambiguously mentioned that neither the land in question was acquired nor its possession had been taken. It has also been pointed out further in respect of the said plots that no Award was ever made.

It has also been pointed out that earlier the petitioner has moved an application for sanction of map for constructing Group Housing/Multi-Storied Building over the aforesaid plots and vide order dated 30.9.1995, the authorities of the Board approved the map. After sanction of the map, the petitioner informed the authorities of the Board that he has applied for construction over 6463.70 sq. mtrs. of land, but the building plan for 2609.56 sq. mtrs. only has been sanctioned without assigning any cogent reason. This act of the respondents was highly arbitrary when it is clear that the land of the petitioner was never acquired. He also invited our attention towards the letter dated 17.8.2000 written by the Additional District Magistrate (Land Acquisition) to the Joint Housing Commissioner of the Board indicating therein that possession of the Khasra Plot Nos.569, 572, 573 and 578 has not been given to the acquiring authorities and as such, there is no question of preparing Form 11. The matter of sanctioning the map for the remaining land remained pending for quite long time and on 31.7.2002, the Executive Engineer communicated the petitioner through the letter dated 31.7.2002 about the decision of the Bhoomi Vidhan Samadhan Samiti whereby petitioner was required to pay developmental charges at commercial rate.

Aggrieved by the unjust and arbitrary action of the Board, the petitioner preferred writ petition no. 493 (MB) of 2004, Vijay Gopal vs. U.P.Awas Evam Vikas Parishad and others, praying for a direction to the opposite parties not to require the petitioner to pay development charges at commercial rate and sanction the building plan submitted by the petitioner much earlier and also sought quashing of the order of the Bhoomi Vivad Samadhan Samiti communicated by the Executive Engineer vide letter dated 31.7.2002. A co-ordinate bench of this Court after hearing the parties passed an order dated 4.4.2004, which reads as under:-

" ... Learned Counsel for the petitioner submits that the petitioner submitted a plan for sanction of group housing scheme on a plot measuring 3,652.35 sq meter on freehold land and the opposite parties in an illegal and arbitrary manner are demanding the commercial charges for the sanction of the plan.

Sri R. K. Mehrotra, learned Counsel for the opposite parties submits that the land is situated on a main Lucknow-Faizabad Road, which is a commercial site and as such the Board is demanding the commercial rates from the petitioner. He further submits that according to the residential rate amount for sanction of the plan comes to about Rs.2,12,000/- and the petitioner cannot claim the benefit of the residential rates, as the site is commercial.

We have considered the arguments of the learned Counsel for the parties and gone through the record.

There is no dispute that earlier also a plan for group housing over 2,609.40 sq meter of the land was sanctioned by the Housing Board in the year 1995 after collecting the development charges. There is no dispute that the petitioner has submitted the plan for group housing for residential purpose only. Sri Mehrotra has informed us that the total amount of charges for group housing on the basis of the calculation of residential charges comes to Rs.2,12,000/- approximately.

In view of the aforesaid facts, the petitioner is directed to deposit Rs. 2,12,000/- with the U. P. Housing Board and the opposite parties shall release the sanctioned plan within 15 days from the date of deposit of the said amount. The amount deposited by the petitioner shall be subject to the further orders of this Court."

After orders dated 4.2.2004 and 21.5.2004 passed by the Co-ordinate Bench of this Court, a letter dated 24.6.2004 was issued by the U. P. Housing and Development Board [in short referred to as the 'Board'] whereby the Board has asked the Additional District Magistrate, Land Acquisition to transfer the land and make an Award in respect of petitioner's plot nos. 569, 572, 573 and 578 situate in village Ghazipur-Saidulnisha, which has been assailed in Writ Petition No. 3255 (MB) of 2004. In this writ petition, the petitioner has inter alia prayed for a direction restraining the respondents from interfering with the possession of the petitioner over the aforesaid plots. A Coordinate Bench of this Court while entertaining this writ petition and after considering the arguments of the parties passed an order dated 14.7.2004, which reads as under:-

"... On 4.2.2004, a detailed interim order was passed in Writ Petition No. 493(MB) of 2004 and thereafter on 21.5.2004, a separate order was also passed providing that the map, if sanctioned by the opposite parties, shall be subject to further orders.

The petitioner has alleged in the petition that in compliance of the orders dated 4.2.2004, a sum of Rs. 2,12,000/- was deposited by the petitioner with the U.P.Avas Evam Vikas Parishad. The petitioner has also alleged that he has also deposited Rs.1,02,373/- which was demanded by the opposite parties by the order dated 29.4.2004.

Prima facie, we are of the view that the impugned order passed by the Upper Awas Ayukt and Sachiv is in clear defiance of the orders passed by the this Court.

The operation and enforcement of the order dated 24.6.2004 passed by opposite party no.2, shall remain stayed till further orders of this Court."

In the said writ petition, a Co-ordinate bench of this Court followed by the aforesaid order, passed another order dated 26.7.2005, which reads as under:-

"... The petitioner is alleged to be the owner in possession of Khasra No. 569, 572, 573, 578 of village Ghazipur, Pargana, Tehsil and District Lucknow. The Notifications under Section 28 and Section 32 of the U.P.Avas Evam Vikas Parishad Act were made on 20.1.1970 and 12.10.1972 respectively. After the Notification under Section 28 of the U.P.Avas Evam Vikas Parishad Act, objections were preferred by the petitioner and others. The Special Land Acquisition Officer thereafter declared the Awards on 22.3.1975 and 31.3.1977. It is the admitted case of the parties that the Award in respect of the land of the petitioner was not declared by the Special Land Acquisition Officer either on 22.3.1975 or on 31.3.1977. Sri Prashant Chandra learned Counsel for the petitioner submits that till date the petitioner is in possession over the land of Khasra No. 569, 572, 573, 578 of village Ghazipur, Pargana, Tehsil and District Lucknow.

Sri P.N.Mathur, Senior Advocate appearing on behalf of the opposite parties submits that the land of the petitioner is still covered by the Notification under Section 32 of the U. P. Avas Evam Vikas Parishad Act and till date the State Government has not passed any order for the release of the land of the petitioner.

We have considered the arguments of the learned Counsel for the parties and gone through the record.

It is the admitted case of the parties that the award in respect to the land of the petitioner was not declared by the Special Land Acquisition Officer either on 22.3.1975 or on 31.3.1977. More than 32 years have elapsed since the Notification under Section 32 of the U.P.Avas Evam Vikas Parishad Act was issued. The petitioner is still in possession over the land. The opposite parties shall sanction the plan of the petitioner, in accordance with law within four weeks from today. "

The aforesaid order dated 26.7.2005 passed by a co-ordinate bench of this Court was assailed by the Board before the Apex Court in Special Leave Petition (C) No. 19923 of 2005 in which the Hon'ble Supreme Court had been pleased to pass an order dated 7.10.2005, disposing of the Special Leave Petition with a request to dispose of the writ petition within a period of six months from the date of receipt of the said order and the direction issued by this Court to sanction the building plans within four weeks' was ordered to be kept in abeyance till disposal of the aforesaid writ petition. It was expressly observed in the order dated 7.10.2005 passed by the Hon'ble Supreme Court that the merits of the case had not been looked into by the Hon'ble Supreme Court.

Learned Counsel for the petitioner has vehemently contended that there is no dispute in the fact that the proceedings for acquisition under the Scheme published in the year 1969 stand lapsed after coming into force of amendment vide Act No. 68 of 1984 made in the Land Acquisition Act, 1894, mandating publication of Award within 2 years and taking of possession within the same period. This assertion of the petitioner is substantiated from the fact that by way of a clarification, the petitioner had sought a query from the Special Land Acquisition Officer in response whereof vide an answer dated 20.06.1988, it was replied that the petitioner's land had neither been acquired nor any Award had been pronounced and as such there is no occasion for payment of any compensation in respect of the petitioner's plot nos. 569, 572, 573 and 578.

After confirmation by the Special Land Acquisition Officer regarding acquisition of the petitioner's above plots not having been made, the petitioner applied before the respondent-Board for sanction of building plans for Group Housing. Although the petitioner's land had, admittedly, not been acquired, the respondent-Board apparently under some mistaken impression required the petitioner to approach the State Government for change in land use. This letter was issued to the petitioner on 07.11.1990. It transpires that upon the reply given on behalf of the petitioner, the respondent Board felt satisfied that there was no requirement to seek any change in the land use as the Scheme on the plots closer to the land of the petitioner had been launched by the Board itself. Nevertheless, provisions contained in Sections 50 and 54 of the U.P Awas Evam Vikas Parishad Adhiniyam, 1965, prescribes payment of betterment fee and the same was demanded and referred to as development charges although there is no provision to levy any such development charges by the respondent Board. Though the procedure under Sections 50 to 54 of the U.P. Awas Evam Vikas Parishad Adhiniyam, 1965 was not followed, the petitioner on 25.07.1994 deposited a sum of Rs.1,51,466/- pursuant to the demand raised by the respondent Board.

According to the petitioner, it appears that the said deposit was not properly recorded in the Parishad records as a consequence whereof the building plans submitted by the petitioner were not considered. After great efforts, the petitioner got the said amount of the deposit traced in the Board and consequently, a letter dated 25.09.1995 was issued by the Property Management Office of the Board, certifying that the said amount was received on 25.07.1994 itself.

After the deposit having been confirmed, the respondent Board sanctioned the building plans submitted by the petitioner on 30.09.1995. However, while doing so, against the submitted plans for 6463.7 sq. mtrs., only 2609.6 sq. mtrs. was sanctioned for which petitioner made representations requesting therein to sanction and release of building plans for entire area for which the plans had been submitted.

It appears that the Executive Engineer after scrutiny of the building plans of the petitioner had made a recommendation for sanction of the map and the same had also met approval of the Vastuvid Niyojak of the respondent Board. The said proposal was apparently placed before the Joint Housing Commissioner of the Board who vide letter dated 14.08.2000 sent to the Executive Engineer requiring him to submit a layout plan depicting the entire Scheme in order to enable him to apprise the Housing Commissioner. A copy of the said letter was also forwarded to the Additional District Magistrate (Land Acquisition) requiring him to indicate the position with regard to the petitioner's plot nos. 569, 572, 573 & 578 and also to inform him as to when the Award was declared; and the extent of the amount paid to the petitioner; and a request was also made to provide Form 11 to him forthwith.

In response to the said letter of the Joint Housing Commissioner dated 14.08.2000, the Additional District Magistrate (Land Acquisition) sent a response dated 17.08.2000 indicating therein that in respect of Khasra plot nos. 569, 572, 573 and 578, no proposal had been received in his office and upon scrutiny of the records, it comes out that possession had not been taken from the petitioner and the same had never been handed over to the respondent Board and accordingly, he observed that since no possession of the petitioner's land was taken and it was not handed over to the respondent Board, there was no question of preparing Form 11 and also that no payment had been made in respect of the said plots towards compensation.

The letter dated 14.08.2000 has also been marked to the Vastuvid Niyojak and it appears that another letter dated 11.09.2001 was sent to him by the Joint Housing Commissioner who responded to the said letter on 26.09.2001 and in the said communication, the Vastuvid Niyojak mentioned that the area of 3649.4 sq. mtrs. for which building plans had not been submitted was not free from acquisition. This is totally contrary to the records and apparently based on the wild imagination of the Vastuvid Niyojak. Nevertheless, the Joint Housing Commissioner, in response to the pending requests of the petitioner and in furtherance of the letter dated 26.09.2001 sent by the Vastuvid Niyojak to him, sent a letter dated 16.02.2002 to the petitioner in which he indicated that a decision has been taken to refer the matter pertaining to the petitioner's plot to Bhumi Vivad Samadhan Samiti. The petitioner was required to submit an application in the prescribed form and if the petitioner was agreeable to the same, he was required to deposit a sum of Rs.10,000/-.

As the acquisition in respect of the petitioner's land had not been made pursuant to the decision taken by the State Government; consequent to the objection filed by the petitioner and other persons in the year 1970 several plots were excluded from the Scheme and were not notified under section 6/17 of the Land Acquisition Act, 1894; and as the other plots of land which has been exempted, had been and were being utilized for raising constructions particularly Group Housing; and as the petitioner was being made to run from one Office to other for the last 15 years, he submitted an application in the Parishad along with a sum of Rs. 10,000/- on 18.03.2002 for referring the matter to the Bhoomi Vivad Samadhan Samiti.

On 2.8.2002, the petitioner was served with a letter dated 31.7.2002, issued by the Executive Engineer through which the petitioner informed that in a meeting dated 7.6.2002 of the Bhoomi Vivaad Samadhan Samiti, the proposal of the petitioner had been considered and it was decided that in case the petitioner is desirous of getting his own land allotted/settled by the respondent Board in his favour, he may within 15 days of the dispatch of the said letter, submit his consent that he was prepared to pay at the commercial rate for purchase of the said property.

It has been vehemently argued on behalf of the petitioner that the sole defence, though inconsistent in several affidavits filed on behalf of the Respondent-Board, is that the State Government has not exempted plots of the petitioner from acquisition. However, without entering into the controversy inconsistently raised on behalf of the Respondent-Board, it is submitted that even if the said presumption is taken to be correct, the land of the petitioner would not vest with the respondent Board as the initial notification for acquisition stood lapsed.

The position, as it obtains is that after a lapse of about 42 years from the date of notification on 19.1.1970 for acquiring the plots of the petitioner under the Ghazipur-Bastauli Scheme, no acquisition proceedings took place; as the petitioner's application for exemption from acquisition stood granted by the State Government. In any case the same stood lapsed in view of the provisions contained in Section 11-A of the Land Acquisition Act, 1894 and the law laid down by this Hon'ble Court as well as the Hon'ble Apex Court and reliance in this regard has been placed on an Apex Court's decision rendered in Mangal Sen Bhandula and another Vs. U.P. Awas Evam Vikas Parishad [2011 (29) LCD 290]. Relevant portion of the judgment reads as under:-

"14. In the present case there is a clear repugnancy in Section 55 of the Adhiniyam and Central Act of 68/1984 as pointed out in aforesaid judgment of Vijay Kumar Sharma under heading i, ii, v, vii, ix. Both have become discriminatory also atleast from the view point of land holder. The Supreme Court has already held that beneficial provisions of enhanced compensation under section 23 (1-A) of the Central Act would apply to Adhiniyam, then section 11-A confers greater right, where under the land holders gets his land back shall similarly apply. For the land holders it is immaterial whether the land is acquired for public purpose mentioned in Adhiniyam or for public purpose mentioned in Central Act. The land can be acquired under both the Adhiniyam as well as under the Act for public purpose. By virtue of section 11-A of the Central Act by not making award within two years the land reverts back to him while under section 55 he will be deprived of his land inspite of the fact that award has not been made within two years. Thus, on account of implied repeal and also on the ground of discrimination it must be held that section 11-A applies to Adhiniyam if neither award nor possession has been taken within two years. The notification under section 32 of the Adhiniyam read with section 6 of the Act was published in the Official Gazette on 19.11.2005 and paper possession has been taken on 5.4.2008, i.e. beyond two years and award has not yet been made, the acquisition proceedings stood lapsed."

The petitioner submits that in view of the facts and circumstances as have been stated by him, he is legally entitled for expeditious sanction of building plans by the Respondent Parishad as the petitioner has completed all the requisite formalities; and the fee in respect whereof has been accepted by the petitioner as raised by the Board, and the impugned orders are liable to be quashed.

On behalf of the Respondents, it is argued that the plots of the petitioner, as specified earlier, were proposed for acquisition under Section 28 of U.P. Awas Evam Vikas Parishad Adhiniyam, 1965, notice of which was published in extraordinary Gazette on 3.1.1970 by inviting objections. Pursuant to this, land owners including the Petitioner, whose lands were proposed to be acquired, filed objections. As far as petitioner is concerned, the Niyojan Samiti decided that only land with an area of 2609.60 sq. mt. shall not be acquired. Accordingly, the petitioner deposited development charges of Rs.1,51,467/- on 1.6.1994 and building plan for the same was sanctioned on 18.5.1994. The petitioner has utilized the said land as Group Housing.

Further, since the value of the scheme exceeded Rs.20 lakhs, it was referred to the State Government for sanction under Section 31 of the U.P. Awas Evam Vikas Parishad Adhiniyam, 1965. The Scheme referred by the Board was sanctioned by the State Government and as a consequence, a notification under Section 32 of U.P. Awas Evam Vikas Parishad Adhiniyam, 1965, was published on 8.7.1972 acquiring the land pertaining to the Scheme, including the remaining land of the petitioner with an area of 3652.15 sq. mt of Khasra Plot nos.569, 572, 573 and 578.

In order to take possession of land, in accordance with law, the Board resorted to Section 55 of the U.P. Awas Evam Vikas Parishad Adhiniyam, 1965. The Board deposited compensation for acquired land with the Land Acquisition Officer, Lucknow, on 8.8.1977.

The petitioner moved an application after depositing Rs.10,000/- for allotment of adjustment of 3652.15 sq. mt. land which is the land in question. This application was placed before a Committee; Bhumi Vivad Samadhan Samiti, that comprised of Housing Commissioner, Additional Housing Commissioner C.A.P, Joint Housing Commissioner (Land) and Legal Advisor on 5.6.2002. The said Committee decided that the land in question be alloted in favour of the petitioner on payment of prevalent commercial rates and consent of the petitioner be obtained within 15 days and in case consent is not received from the petitioner action shall be taken for taking possession of land and declaration of award.

The petitioner, according to the respondent did not give consent and therefore the Additional District Magistrate (Land Acquisition) was requested vide the impugned letter dated 24.06.2004 to proceed with the declaration of Award and delivery of possession.

Elaborating his submission learned Counsel for the respondent-Board has submitted that there is no challenge to acquisition proceedings/notification issued under Section 28, 32 and procedure resorted to under Section 55 of U. P. Housing and Development Board, 1965. By Section 55 of Act of 1965 certain provisions of Land Acquisition Act have been incorporated excluding Section 11-A of the Land Acquisition Act. Section 11-A of Land Acquisition Act is inapplicable to proceedings under the Act of 1965 as held by Hon'ble Supreme Court in Girnar Traders (3) versus State of Maharashtra and others reported in (2011) 3 SCC 1 and in Suraj Pal and others versus U.P. Avas Evam Vikas Parishad and others and other connected Civil Appeals decided on 28.4.2011. Moreover, the petitioner himself applied for allotment/adjustment of the land in question in his favour which was acceded to on 7.6.2002 on the condition that in case he deposits amount at the commercial rate and gives consent, then it may be adjusted/allotted failing which the Board shall proceed to take possession and for declaration of Award. It has also been argued that there is no pleading regarding lapse of acquisition proceedings. Lastly, it has been argued on behalf of the respondents that provisions of Section 11-A of the Land Acquisition Act, 1894 shall not apply to the proceedings of U.P. Awas Evam Vikas Parishad Adhiniyam and consequently they still have a right to get an Award made by the Additional District Magistrate (Land Acquisition) and then to take possession of the petitioner's land.

The primary purpose and the only object of the Land Acquisition Act is acquisition of land and payment of compensation for such acquisition. Section 55 read with Schedule of U.P. Awas Evam Vikas Parishad, 1965 adopted the provisions of Land Acquisition Act. The acquisition proceedings are commenced with the issuance of notification for a public purpose and would end with the payment of compensation for such acquired land. Despite the fact that it is compulsory acquisition, which is in exercise of the State's power of eminent domain, the Legislature has still attempted to create a balance between compulsory acquisition and rights of owners/interested persons on the other.

There is no dispute that the notification for acquisition of the petitioner's land and adjoining lands was issued on 20.12.1969 for Bastuli-Ghazipur Scheme. Thereafter, the petitioner filed objections under Section 29 of the Act. It appears from the records that after filing of the objections, the authorities of the Board remained idle and no positive step was taken for completing the acquisition proceedings. On the contrary, the petitioner continued to enjoy the possession of the plots and as pointed out by the petitioner, he had submitted a proposal for sanction of map for constructing Multi-Storied Building/Group Housing in respect of the aforesaid plots. Annexure 12 to the writ petition is the letter written by the Executive Engineer, Construction Division, Indira Nagar to the Chief Architect certifying that Rs.1,51,467/- has been deposited on 1.6.1964 by the petitioner in respect of Group Housing. Annexure 13 is the letter issued by the Chief Architect/Officer-on-Special Duty of the Board sanctioning the map in respect of the aforesaid plot. Annexure 16 is the letter dated 17.8.2000 written by the Additional District Magistrate to the Joint Housing Commissioner of the Board informing therein that examination of records reveals that the possession of Khasra plot nos.569, 572, 573 and 578 has not been given to the acquiring authority and as such, there is no question of preparing Form 11.

At this juncture, it is relevant to mention that though the aforesaid plots were included in the acquisition notification dated 20.12.1969, but the Special Land Acquisition Officer in response to a query of the petitioner has informed vide its letter dated 20.6.1988 that neither the aforesaid plots have been acquired nor its possession had been taken. It was further informed that neither any Award has been made nor any compensation has been paid. Thus, from the aforesaid facts, it is eminently clear that after the notification dated 20.12.1969 and objections of the petitioner, the possession of the land was never taken and the petitioner continued to enjoy the possession over the plots in question. Even for handsome portion of the aforesaid Khasra Plot Nos. 569, 572, 573 and 578, layout plan was approved after the formalities for constructing Multi-Storied Building/Group Housing as would be evident from the letter dated 30.9.1995 issued by the Chief Architect and Planner/Officer-on-Special Duty of the Board. The question of acquisition arose when the petitioner refused to pay development charges at commercial rate for sanction of the Group Housing Scheme and this Court passed orders directing therein that on depositing of Rs.2,12,000/-, the Board shall release the sanctioned map. It appears that with an oblique motive and to frustrate the two orders of this Court, the Board issued a letter dated 24.6.2004 to the Additional District Magistrate (Land Acquisition) to transfer the land and make an Award in respect of the petitioner's plot Nos.569, 572, 573 and 578.

A glimpse of relevant provision of the 1965 Act reveals that the first step for initiating proceedings for acquisition of land is provided under Section 28 of the Act which provides the Board to draw appropriate Scheme earmarking the proposed land. Section 29 prescribes to issue notices of the proposed acquisition within six weeks from the date of first notice published under Section 28 of the Act. Section 30 contemplates inviting objections in writing against the Scheme or the proposed acquisition or levy. Section 31 deals with the abandonment, modification or sanction of Scheme. Thereafter, direction is issued to the District Magistrate under Section 7 of the Land Acquisition Act authorizing him to take possession of the acquired land. Consequent to this direction, notices are issued under Section 9 of the Land Acquisition Act showing intention to take possession of the land. As admitted by the Special Land Acquisition Officer in his counter-affidavit that there is no mention of issuance of notice to the owners of land/Khasra No.569, 572, 573 and 578 in the record. Thereafter, the possession of the acquired land/as notified was taken on 7.3.1973, 28.7.1973, 7.9.1973 and 20.6.1988, but the possession of the petitioner remained untouched and he continued to enjoy the possession over the land in question. Furthermore, the Special Land Acquisition Officer made an Award on 22.3.1975 in which the petitioner's plots were not included which has subsequently been confirmed by the Special Land Acquisition Officer vide its letter dated 20.6.1988.

It would not be out of place to mention that Section 11-A was inserted in the Land Acquisition Act in order to prevent long delay in acquisition proceedings. By the provision of Section 11-A, the State Authorities are required to pass a final Award within two years from the date of publication of the declaration under Section 6 of the Act failing which the acquisition proceedings would lapse. Even if the contention of the Board's Counsel to the effect that Section 11-A is not applicable, it would not mean that acquisition proceedings would go on for an indefinite period without any Award or compensation to the land owner because that would be a colourable exercise of power. In the instant case, the notification was issued 42 years back and the Scheme for which the notification was issued must have come to an end. Therefore, the purpose for which the land of the petitioners was acquired has also lost its efficacy. As averred above, initially there was no stand of the Board regarding acquisition, but it was regarding the amount payable in order to sanction the plans as submitted.

The assertion of the Board's Counsel is that there is no challenge to acquisition proceedings or notification. In our view, this assertion of the Board is untenable as after the first notification issued in the year 1969 and objections of the petitioner for exempting the land, the Board itself has sanctioned the building plan submitted by the petitioner 30.9.1995. However, while doing so, against the submitted plans for 6463.74 sq. mtr. layout plan for only 2609.6 sq. mtr. was sanctioned, which compelled the petitioner to move further applications. Nowhere, it is the case of the Board that some portion of the land situated at Khasra No.569, 572, 573 and 578 was exempted from acquisition and only on the exempted portion, lay-out plan was sanctioned. Thus, it can safely be presumed and established that the land of the petitioner was exempted from acquisition and as such, there was no occasion for the petitioner to challenge the acquisition proceedings. However, 6.3.2013, an affidavit was filed by the Principal Secretary, Housing & Urban Planning Department in which it has been indicated that the Scheme referred by the Board was sanctioned by the State Government and thereafter, a notification under Section 32 of the Act was published on 8.7.1972 acquiring the land pertaining to the Scheme including the remaining land of the petitioner with an area of 3652.15 sq. mtr. of Khasra Plot Nos.569, 572, 573 and 578. On account of this development/new facts, the petitioner challenged the notification under Section 28 and 32 issued on 3.1.1970 and 8.7.1972 by making an amendment in the writ petition. The possession of the land could not be taken in view of existence of the interim order of this Court.

It is quite surprising that such a stand has been taken by Senior Officer of the State Government overlooking the fact that after the acquisition notification in the year 1969, notice was published on 3.1.1970. From 1970 till 2004, neither the possession was taken nor any award being pronounced or compensation was paid. Even in the Award dated 22.3.1975, petitioner's plots were not included and the SLAO vide his letter dated 20.6.1988 has confirmed the same. There was no litigation till 2004 and as such, it is wholly incorrect to say that possession could not be taken on account of interim order. The first writ petition was filed in the year 2004 and an ad interim order staying the operation and implementation of the order dated 24.6.2004 was passed on 14.7.2004. Before 14.7.2004, there was no impediment whatsoever for the authorities to take the possession but as stated above, the petitioner continued to remain in possession till date and even prior to 14.7.2004.

It is relevant to point out that in the letter dated 30.9.1995, the Group Housing/Multi-Storied Building Plan was sanctioned and in the column of plot numbers/Khasra Nos., 569, 572, 573 and 578 Village Ghazipur has been indicated. There is no mention that the sanctioned plan is in respect of the land exempted from acquisition. Therefore, the respondent-Board cannot somersault and change stand as per their whims. The conduct of the Board itself shows that the land was reverted back to the land owner as at no point of time, in 40 years, possession of the land was taken and on contrary, map for some portion of the land alleged to be acquired was sanctioned. The authorities remained in deep slumber for more than four long decades and came out of slumber only when the petitioner refused to pay the commercial charges.

In these circumstances, the impugned order dated 24.6.2004 passed by the opposite party No.2 cannot be sustained as it is established beyond doubt from the fact that the letter dated 24.6.2004 was issued just to circumvent and frustrate the orders dated 4.2.2004 and 21.5.2004 passed by this Court.

For the reasons aforesaid, both the writ petitions are allowed and the notifications dated 3.1.1970 and 8.7.1972, insofar as it relates to the petitioner, including the impugned order dated 24.6.2004 issued by the opposite party No.2 are hereby quashed.

Dt.4th July, 2013

MH/lakshman