Allahabad High Court
Lt. Col. J.B. Kuchhal And Anr. vs State Of U.P. And Others on 19 December, 2016
Bench: Sudhir Agarwal, Shamsher Bahadur Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R
Reserved on: 09.05.2016
Delivered on: 19.12.2016
Court No. - 34
Case :- WRIT - C No. - 24775 of 1990
Petitioner :- Lt. Col. J.B. Kuchhal and another
Respondent :- State Of U.P. and others
Counsel for Petitioner :- R.B.D. Misra, Manish Goel, Rahul Sahai, Rajesh Kumar Kannaujia, Sandeep Agrawal
Counsel for Respondent :- U.S. Awasthi, Ramendra Pratap Singh, S.C.
AND
Case :- WRIT - C No. - 21643 of 1990
Petitioner :- Rakesh Kumar Aggarwal and others
Respondent :- State Of U.P. and others
Counsel for Petitioner :- R.B.D. Misra, R.K.Jain, Vikram D Chauhan
Counsel for Respondent :- U.S. Awasthi, Ramendra Pratap Singh, S.C.
Hon'ble Sudhir Agarwal,J.
Hon'ble Shamsher Bahadur Singh,J.
( Delivered by Hon'ble Sudhir Agarwal, J.)
1. Petitioners, in both writ petitions, have assailed notifications dated 30th November, 1989 published under Section 4(1) of Land Acquisition Act, 1894 (hereinafter referred to as 'Act, 1894') and dated 16th June, 1990 published under Section 6 (1) of Act, 1894, proposing to acquire 91-11-0 bighas (57.218 acres) of land, comprising a large number of khasras in Village-Bhagel Begumpur, Pargana Dadri, District Ghaziabad (now Gautambudh Nagar) for the purpose of "Planned Industrial Development", at the instance of New Okhla Industrial Development Authority, Ghaziabad (now Gautambudh Nagar) (hereinafter referred to as 'NOIDA'), in public interest. State Government also exercised powers under Section 17(1) and (4) and dispensed with inquiry contemplated under Section 5A of 'Act, 1894'.
2. Details of petitioners and respective plots belong to them, which are in dispute and subject matter of acquisition in question, are as under:
Sl. No.
Writ Petition
Petitioners' name
Details of Kharsa/Gata no.
Area (in bigha)
24775 of 1990
1. Lt. Col. J.B. Kuchhal
2. Smt. Manorama Kuchhal
1-3-1
1-17-19
0-17-5 2/3
2.
21643 of 1990
1. Rakesh Kumar Aggarwal
2. Umesh Kumar Agarwal
3.Rakesh Kumar Aggarwal (HUF)
4.Umesh Kumar Aggarwal (HUF)
5. Rajinder Kumar Jain(HUF)
6. Smt. Kusam Jalan
7. Aditiya Jalan
8. Prashant Jalan
9. R.K. Jalan
10.Naresh Kumar Bhognagarwala
11. Smt. Shalini Poddar
5-17-0
3. Learned counsel for the parties requested that for the purpose of reference of pleadings, writ petition i.e. Writ Petition No. 24775 of 1990 (hereinafter referred to as 'First Petition') be taken as leading case, hence we proceed accordingly.
4. Facts, as pleaded in first writ petition, show that petitioners purchased Plots no.136, 137 and 138 to the extent of area stated in chart given hereinabove, vide sale deeds dated 30.04.1985, 05.07.1985, 19.07.1985 and 13.01.1986 respectively. Notification dated 30th November, 1989 was published under Section 4 and thereafter notification dated 16th June, 1990 was published under Section 6 read with Section 17 of Act, 1894. Declaration under Section 6 was published in Official Gazette on 03.08.1990. Petitioners were served with notice dated 18.08.1990 under Section 9 of 'Act, 1894' but therein reference was only with respect to Plots no.136M and 137M. No notice was served under Section 9 in respect of Plot no.138.
5. Challenging aforesaid acquisition notifications, First Petition was filed wherein following interim order was passed on 10th October, 1990.
"Connect with Writ Petition No.21643 of 1990.
Counter affidavit may be filed by the respondents within three weeks. Respondent no.4 shall annex the concrete plan of the land, if it is finalised. Rejoinder affidavit may be filed thereafter within a week.
Meanwhile the respondents are directed not to dispossess the petitioners from the disputed plots, if they had not already been dispossessed therefrom. However, the petitioners are directed not to change the nature of the plots."
6. Award under Section 11 of Act, 1894 was made on 31st July, 1992 excluding disputed land. No award has been made till date in respect of disputed land. On 05.12.1997, First Petition was dismissed for want of prosecution and stay order was vacated. Possession of Plots no. 136 and 137 were taken by Collector and transferred to NOIDA on 10th September, 1999. Order dated 05.12.1997 dismissing First Petition in default was recalled on 01.05.2007. This writ petition along with several others was directed to be placed before Larger Bench. A large number of writ petitions were ultimately decided by Full Bench of this Court in Gajraj Singh and others vs. State of U.P. and others, 2011 (11) ADJ 1 vide judgement dated 20.10.2011 but these two writ petitions could not be decided in the said Bench.
7. Another set of writ petitions came up before Full Bench on 14th May, 2012 where Court directed Collector to get appropriate measurement of plots through competent revenue officials in presence of petitioners and submit report to Court. Collector submitted its report dated 06.06.2012 giving details of Plots no. 136, 137 and 138, as under;
Khasra Plot No.136 - 2420 Sqm is vacant land
Khasra Plot No.137 - 5632.50 Sqm is vacant land
Khasra Plot No.138 - 19672 Sqm is vacant land
Total 27724 Sqm land is lying vacant
8. Thereafter, Full Bench directed this matter to be placed before Division Bench vide order dated 09.05.2013.
9. A supplementary counter Affidavit was filed by NOIDA, stating that land in question is laying vacant. Thereafter without leave of Court, NOIDA started construction of City Bus Terminal in January, 2015 despite protest raised by petitioners and this fact was reiterated in 3rd supplementary counter affidavit filed by NOIDA. Petitioners filed Contempt Petition no.2759 of 2015 in which notices were issued and matter is pending.
10. Acquisition notifications are assailed mainly on following grounds;
(i) Invocation of urgency clause under Section 17 to dispense with inquiry under Section 5A of Act, 1894 is illegal and arbitrary as there existed no such urgency.
(ii) There did not exist any public purpose of alleged "Planned Industrial Development"
(iii) Possession of land has not been taken by respondents.
(iv) Acquisition proceedings under Section 11A of Act, 1894 had lapsed since no award has been made till date.
(v) Construction raised by NOIDA despite interim order passed by this Court is unauthorised and illegal, therefore, possession of disputed land be directed to be restored to petitioners, in view of law laid down in K.B. Ram Chandra Raje vs. State of Karnataka, 2016 (3) SCC 422.
11. Counter Affidavit sworn by Sri B.B. Kaul, Law Officer, NOIDA on 15th November, 1990 was filed stating that petitioners have no right to challenge notification under Section 4(1) read with Section 17. Land has been acquired for residential complex to accommodate industrial labourers and persons of weaker sections, construction of roads, bus depot, and also for green belt, to avoid pollution arising from medium and large industries including Hosiery Complex and NOIDA Export Processing Zone Complex. Total land proposed to be acquired is 91-11-0 bighas (57.218 acres) and out of this 25-19-7 bighas is marked for residential complex, 2-4-0 bighas for road, 9 bighas for bus depot and 54-7-13 bighas for green belt. There was a big 'Nala' having width of about 80 feet and green belt proposed on both side of 'Nala'. The allegation that NOIDA has no scheme or plan is incorrect. Requirement is for public purpose and State Government has applied its mind while invoking provision of Section 17 of Act, 1894.
12. A counter affidavit has also been filed by respondents 1, 2 and 3 but with regard to allegations of non-existence of urgency, particularly allegations made in para 11, 20, and 21 of First Petition, no material was placed before us to show that there existed some urgency to justify dispensation of inquiry under Section 5A.
13. A supplementary counter affidavit sworn by Sri Harnam Singh, Additional District Magistrate (Land Acquisition)/Officer on Special Duty (Land Acquisition), Gautambudh Nagar on 3rd March, 2011, has been filed in the light of subsequent events. It is said therein that NOIDA was constituted vide notification dated 17th April, 1976 under Section 3 of U.P. Industrial Area Development Act, 1976 (hereinafter referred to as 'Act, 1976'). NOIDA authorities proposed acquisition of more than 90 bighas of land in village Bhagel Begumpur, hence State Government thought it proper to have area surveyed so that position of abadi/construction could be ascertained and consequently before notification under Section 4, a team consisting of Officers of NOIDA and Revenue Department, Government of U.P., conducted a survey and submitted their report with regard to existing constructions, land uses etc. Notification dated 30.11.1989 was published in two daily newspapers on 19.02.1990 and 20.02.1990. Declaration under Section 6(1) was also published in two daily newspapers on 26.07.1990 and 03.08.1990. Notice under Section 9 was issued fixing 6th September, 1990 for hearing of objection by Additional District Magistrate (Land Acquisition) (hereinafter referred to as 'ADM (LA)'). Possession of 49-15-17 bighas i.e. 31.120 acres of land was taken by State and transferred to NOIDA on 14.02.1991. Possession of Gata no.136 area 2-3-0 bighas and Gata no.137 area 3-9-0 bighas was taken and transferred to NOIDA on 10.09.1999. The possession of said land is continuing with respondents. Reasons for invocation of urgency clause by Collector was sent to State Government showing urgency and there was sufficient material, hence inquiry under Section 5A was dispensed with. Acquired land is strictly being used according to Master Plan, 2021 of NOIDA. Land use of village Bhagel Begumpur is in Special Development Zone (Industrial). Award was made under Section 11 by Special Land Acquisition Officer (hereinafter referred to as 'SLAO') on 31.07.1992 and in those matters where interim order was passed by this Court, award said that compensation shall be determined in the light of ultimate order passed by Court.
14. In respect to Gata no.138 which has a total area 8-11-0 bighas, petitioner purchased 1/3 share of area i.e. 2-17-0 bigha. Subsequently out of 1/3 share of the said area which comes to 0-19-0 bigha, 0-10-0 bigha has been sold by wife of petitioner no.1 to Smt. Veena Singh wife of Prem Singh and others vide sale deed dated 12.06.1989. Copy of sale deed dated 12.06.1989 has been placed on record. Therefore, on the date when Section 4 notice was issued in respect to aforesaid land which was subjected to sale deed dated 12.06.1989, petitioners were not owner. It is further said that in respect to Gata no.138 there are different tenure holders, details whereof are as under;
(i). Praveen Kumar S/o B.S. Verma R/o Bhangel Begampur, have share 0-16-0 bigha.
(ii). Ajay Bahel S/o Vijay Bahel R/o N-117, Panchsheel Marg, New Delhi having share 0-14-0 bigha (has received the compensation amount from the office of A.D.M. (Land Acquisition) of Rs. 1,80,608/- on 01.09.1992) against his share in Gata no. 138.
(iii). Gulshan Malik S/o H.L. Malik R/o B-425 New Friends Colony, New Delhi, (having share 0-4-0 bigha) has received the compensation amount from the office of A.D.M. (Land Acquisition) of Rs. 51,597.37 on 1.9.1992 against his share in Gata no. 138.
(iv). Rohit Bal S/o Prakash Bal R/o 194 Jorbag First Floor, New Delhi, having share 0-5-0 bigha.
(v). Rajiv Bal S/o Mahendra Bal R/o 194 Jorbag First Floor, New Delhi, having share 0-10-0 bigha.
(vi). Prem Kumar Sahni S/o B.M. Sahni and Rajiv Sahni R/o 125, Friends Colony, Delhi, having share 0-10-17 bigha, has received the compensation amount from the office of A.D.M. (Land Acquisition) of Rs. 1,39,963.95 on 1.9.1992) against his share in Gata no. 138.
(vii). Smt. Joya Kumar W/o Praveen Kumar R/o Bhogpur, Aligarh having share 0-12-0 bigha.
(Viii). Smt. Madhu Singh W/o Major Jaiveer Singh R/o G-37, Civil Lines, Bulandshahr having share 0-4-0 bigha.
(ix). Anil Kumar S/o Sardar Singh R/o Bulandshahr Kohli Builders & Devipuram Pvt. Ltd. R/o 4 New Friends Colony, New Delhi having share 0-16-0 bigha.
(x). Smt. Anita Kohli W/o Ravi Kohli R/o 81 New Friends Colony, New Delhi having share 0-10-0 bigha.
All the aforesaid persons from (i) to (x) have purchased the land from Shri Devi Sahai S/o Mani and Mahesn Chand, Chandu and Ramesh sons of Khemi and Mangu S/o Bulaki.
(xi). One Atma Ram Jain S/o Raghunath and petitioner no. 2 i.e. Smt. Manorama Kuchhal W/o J.B. Kuchhal have purchased 2-11-17 bigha from Chatar Sen and Sunil sons of Shambhu Dayal. It is further clarified that from the perusal of sale deed, Sri Atma Ram Jain has share of 2/3rd in 2-11-17 bigha that comes 1-14-10-13 bigha, whereas petitioner no. 2 has share of 0-17-5-7 bigha. Out of the said area Sri Atma Ram Jain has sold 0-13-14 bigha to Smt. Premwati w/o Rajendra Singh R/o Sahibabad, Ghaziabad and 0-3-6 bigha to Smt. Rohan Bedi w/o Kamar Bedi R/o D-501 Bhim Vihar, R.K. Puram, New Delhi. The petitioner no. 2 has sold 0-10-0 bigha to Smt. Veena Singh w/o Prem Singh, Vijay Singh and others.
15. With respect to Gata no.136, it is said that total area is 2-3-0 bighas out of which petitioner purchased 0-16-8 bighas vide sale deed dated 02.11.1985. One Om Dev Singh son of Dileep Singh vide registered sale deed dated 19.07.1985 purchased 0-13-6 bighas from Ramchandra Sood, Executive Engineer a power of attorney holder of Suneel Kumar Saluja and Om Dev Singh has not filed any writ petition challenging acquisition.
16. In respect of Gata no. 137, it has total area 3-9-0 bighas out of which petitioner has purchased 2-11-19 bighas through registered sale deed dated 05.07.1985 and remaining area is owned by Sri O.P. Agarwal. Petitioner has relied on certain agreement for sale which will not confer any right upon him since agreement for sale does not confer title in respect to immovable property.
17. Plots in question which have been acquired have undergone development by construction of road, bus terminal etc. Same acquisition notifications were challenged by one Daya Ram Tayagi and some other tenure holders and it was upheld by this Court in 2010(2) ADJ 315 (Daya Ram Tyagi and others vs. State of U.P. and others). However, we may note here that judgement of this Court has been reversed in appeal by Supreme Court vide judgement dated 23.08.2011 in Civil Appeal no.7237 of 2011 (Daya Ram Tyagi (D) Through LRS. and others vs. State of U.P. and others) (arising out of SLP(C) No. 2687 of 2010) and impugned notifications have been quashed therein. Thus reliance on a judgement of this Court which already stands reversed is not appreciable on the parts of respondents.
18. There are several supplementary counter affidavits filed by NOIDA also and in 3rd supplementary counter affidavit, it is said that entire disputed area has been utilised for city bus terminal and about 117.59 lakhs has been spent for development of aforesaid plots.
19. On the question of possession, there is serious dispute but in any case it does appear that possession of Plots no.136 and 137 was taken on 10th September, 1999 when writ petition was already dismissed for want of prosecution and thereafter when writ petition was restored after recalling of dismissal order, no express order was passed by this Court for dispossession of respondents, therefore, status as on that date has continued.
20. Learned counsel for petitioners referring to a recent judgement in Laxmi Devi vs. State of Bihar and others, 2015(10)SCC 241 contends that Section 11A will be applicable in case where Section 17 has been invoked. In the circumstances he sought a relief of restoration of possession of disputed property.
21. Though, various authorities have been cited at the Bar but we find that in respect of acquisition notifications in question, the matter is squarely covered by Supreme Court's judgement in Daya Ram Tyagi and others (supra) wherein theses very notifications have been quashed on the ground of illegal exercise of power under Section 17 and dispensation of inquiry under Section 5A of Act, 1894. Since these very acquisition notifications were involved in the aforesaid judgment, the same is binding on us and we cannot take a different view.
22. Now question is about restoration of land to petitioners. From record, it is evident that constructions activities were already commenced by NOIDA and substantial constructions have already been made. A good amount of public exchequer has already been spent on such constructions. Nature of construction is a City Bus Terminal and no one can dispute that this is something which is in public interest.
23. It is in these peculiar facts and circumstances and looking to the facts that though respondents are clearly guilty of going ahead with constructions over a land which was not legally acquired and acquisition notification was already set aside by Supreme Court vide judgement dated 23rd August, 2011, in respect of some of the tenure holders whose land was also acquired under same acquisition notifications, therefore, respondents should have been careful enough not to create/change nature of property till pending writ petitions are decided, but they went ahead and changed nature of land in dispute ignoring completely illegality they have already committed and also suffered in some cases involving same dispute and acquisition notifications. This act on the part of respondents needs to be deprecated. We have no hesitation in holding that authority concerned who permitted it, went to the extent of undertaking illegal construction putting huge public exchequer at risk.
24. Having said so still we find that it would be very harsh on the part of this Court to get entire constructions demolished and restore possession of disputed land of petitioners.
25. In the facts and circumstances, we mould relief and allow both these writ petitions in following manner;
(i) Acquisition notifications dated 30th November, 1989 and 16th June,1990 in so far as relate to petitioners' land are hereby quashed, since dispensation of inquiry under Section 5A by invocation of urgency under Section 17 is patently illegal as held in judgement of Supreme Court in Daya Ram Tyagi and others (supra).
(ii). Respondents shall determine compensation of disputed land at twice market value which would be determined in accordance with provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, and pay the same to petitioners within three months from the date of judgment, failing which they shall restore possession of disputed land to petitioners by removing constructions, if any, raised thereon.
(iii). Petitioners shall also be entitled to cost which we quantify to Rs.5,00,000/- in each set of writ petition.
Order Date :- 19.12.2016
A.Kr.*
