Allahabad High Court
Vibhuti Singh Yadav & Anr. vs State Of U.P. & Others on 4 May, 2016
Bench: Sudhir Agarwal, Shamsher Bahadur Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 34
Case :- WRIT - C No. - 5895 of 2010
Petitioner :- Vibhuti Singh Yadav & Anr.
Respondent :- State Of U.P. & Others
Counsel for Petitioner :- Atul Dayal
Counsel for Respondent :- C.S.C.,Chandra Shekhar Singh
Hon'ble Sudhir Agarwal,J.
Hon'ble Shamsher Bahadur Singh,J.
1. Heard Sri Atul Dayal, learned counsel for petitioners, learned Standing Counsel for respondents no. 1, 3 and 4 and Sri Chandra Shekhar Singh, Advocate for respondent no. 2.
2. Petitioners mother Smt. Sajjan Kumari was the owner of Plot no. 93 and 95 Block-D, Village- Udaipur Khas, Pargana, Tehsil & District Bareilly measuring 7111.5 sq. yards.
3. Uttar Pradesh Awas Evam Vikas Parishad (hereinafter referred to as 'U.P.A.E.V.P) launched a scheme known as Izzatnagar Vistar Bhumi Vikas Evam Grihasthan Yojna No. 6, Bareilly under the provisions of Section 17 of U.P. Awas Evam Vikas Parishad Adhiniyam, 1965 (hereinafter referred to as 'Act 1965') and a notice under Section 28 thereof was published in the gazette dated 24.12.1983.
4. Planning Committee considered objections and thereafter scheme was finally notified under Section 32 of Act 1965 vide gazette dated 20.09.1986. Pursuant to aforesaid scheme a total area of 43.04 acres was sought to be acquired which included the land owned by petitioners mother (now deceased and substituted by legal heirs).
5. A notification for taking possession under Section 17 (1) of Land Acquisition Act, 1894 (hereinafter referred to as 'Act 1894') was issued by State Government on 30.01.1987 and possession was taken on 02.07.1988 by Collector and handed over to U.P.A.E.V.P.
6. Collector/Special Land Acquisition Officer made an award under Section 11 of Act 1894 on 19.09.1988 determining compensation of land acquired in view of aforementioned notifications. Compensation however was not paid to petitioners hence they took steps for getting compensation by filing a writ petition before this Court. In the meantime State Government has issued a notification dated 14.09.2001 in purported exercise of power under Section 49 of Act 1965 giving up aforesaid scheme i.e. Izzatnagar Vistar Bhumi Vikas Evam Grihasthan Yojna No. 6, Bareilly.
7. The grievance of petitioners is that after notifications issued under Section 28 and 32 of Act 1894 which are parimateria to Section 4 and 6 of Act 1894, and possession of acquired land having been taken by State and transferred to U.P.A.E.V.P the petitioners are entitled for payment of compensation but on the one hand compensation has not been paid to them despite the fact that award given by Collector/Special Land Acquisition Officer has attained finality and on the other hand taking recourse to notification dated 14.09.2001 issued under Section 49 of Act 1965, respondents are stating that no compensation now would be payable since scheme itself has been revoked/cancelled/disbanded.
8. Sri Atul Dayal, learned counsel for petitioners stated that effect of notification under Section 49 of Act 1965 is not that the land which has vested in the State, would stand divested and restored back to erstwhile owners. The scheme initiated by U.P.A.E.V.P may be revoked/cancelled but land once vested in the State, cannot be divested. State is bound to pay compensation of acquired land to land owners and notification issued under Section 49 cannot have the effect of nullifying entire acquisition proceeding, as a result whereof land vested in State and would stand divested so as to justify non payment of compensation to petitioners/land owners.
9. The issue involved in this writ petition is interpretation and effect of notification issued under Section 49 of Act 1965, and whether the land acquired and vested in the State can stand divested and restored to erstwhile owners if a scheme launched by U.P.A.E.V.P is revoked/cancelled/disbanded by State by issuing notification under Section 49 of Act 1965.
10. Both these questions can be considered together.
11. The basic facts are not in dispute that after notifications issued under Section 28 and 32 of Act 1965, acquired land was taken in possession by Collector and thereupon it vested in State. Then possession was also transferred to U.P.A.E.V.P.
12. We are not concerned with the question, whether land should remain in the hands of U.P.A.E.V.P or State after issuance of notification dated 14.09.2001 under Section 49 of Act 1965. But we are concerned with the question, whether aforesaid notification dated 14.09.2001 will have the effect of divesting acquired land and its restoration to erstwhile owners.
13. Section 49 of Act 1965 reads as under:-
"Power of State Government to call for the records of the Board and to modify or annual any scheme:
(1) Notwithstanding anything contained in the foregoing provisions of this Chapter, the State Government may at any time call for and examine the records of the Board relating to any housing or improvement scheme which is proposed to be or has been framed by the Board or which is being executed by it, and modify, annual or remit for reconsideration to the Board any such scheme or direct that the scheme be executed with such modification as may be specified, or issue such other directions as it may deem fit:
Provided that if any modification involves acquisition, otherwise than by agreement, of any land or building not proposed to be acquired in the original scheme, or if owing to any modifications any land not previously liable under the original scheme to payment of betterment fee becomes liable to such payment, the modification shall not be made without giving an opportunity to the persons so affected of making objections against the proposed modification.
(2) The State Government may stay the execution of any such scheme pending the passing of orders under sub-section (1).
(3) Any modification of a scheme under sub-section (1) shall be notified in the Gazette and shall have effect from the date of such notification, so, however, that any modification shall be without prejudice to the validity of anything previously done under the original scheme."
14. Scheme of Act 1965 shows that U.P.A.E.V.P, amongst its various functions had one of the function, to frame and execute Housing and Improvement Scheme and other projects. Functions of U.P.A.E.V.P are detailed in Section 15 of Act 1965. Mode of framing scheme is provided in Section 16 which says that Board may frame scheme, of its motion or at the instance of a local authority but when it is so directed by State Government, shall frame the scheme, meaning thereby that of its motion or at the instance of local authority, U.P.A.E.V.P has a discretion to frame a housing or improvement scheme but when directed by State Government it is an under an obligation to frame the same.
15. When a local authority require Board to frame and execute housing or improvement scheme, sub Section 2 of Section 16 empowers U.P.A.E.V.P to refuse to frame and execute such scheme if it is satisfied that it is unnecessary or not feasible or that funds at its disposal do not permit such scheme. Constituents of housing or improvement scheme are detailed in Section 18.
16. Once a scheme is framed for the purpose of its execution, if acquisition of land is necessary, at that stage procedure prescribed under Sections 28 to 32 would come into picture.
17. In the present case, after notifications under Section 28 and 32 of Act 1965, land sought to be acquired under the aforesaid scheme was authorised to be possessed by Collector, Bareilly under Section 17 of Act 1894 vide notification dated 30.01.1987. Thereafter possession was actually taken and award was given by SLAO.
18. The effect of notifications under Section 28 read with Section 32 can further be examined in the light of Section 55 read with Schedule. Section 55 reads as under:-
"Power to acquire land- (1) Any land or any interest therein required by the Board for any of the purposes of this Act, may be acquired under the provisions of the Land Acquisition Act, 1984 (Act No. 1 of 1984), as amended in its application to Uttar Pradesh, which for this purpose shall be subject to the modifications specified in the Schedule to this Act.
(2) If any land in respect of which betterment fee has been levied under this Act is subsequently required for any of the purposes of this Act, such levy shall not be deemed to prevent the acquisition of land under the Land Acquisition Act, 1894 (Act No. 1 of 1894)."
19. Clause (2) of Schedule explains effect of notice under Section 28 and 32. Besides other sections, it makes clear with notifications under Section 28 and 32 shall have the same effect as that would have been on issuance of notifications under Section 4(1) and 6 of Act 1894. Clause (2) of Schedule is reproduced as under:-
Effect of notices under this Act:-
(1) The first publication, in the officeial Gazette, of a notice of any housing or improvement scheme under Section 28 or under clause (a) of sub section (3) of Section 31 of the Act shall be substituted for and have, in relation to any land proposed to be acquired under the scheme, the same effect as publication in the official Gazette, and in the locality, of a notification under sub-section (1) of Section 4 of the said Act, except where a notificaion under Section 4 or a declaration under Section 6 of the said Act has prviously been made and is still in force, and the provisions of Secion 5-A of the Said Act shall be inapplicable in the case of such land.
(2) The issue of a notice under clause (c) of sub-section (3) of Section 23 of this Act in the case of land acquired under a Bhavi Sarak Yojana and the publication of a notification under sub-section (1) or, or as the case may be, under sub-section (4) of Section 32 of this Act in the case of land acquired under any other housing or improvement scheme under this Act shall be substituted for and have the same effect as a declaration by the State Government under section 6 of the Said Act, unless a declaration under the last mentioned Section has previously been made and is still in force.
(3) In a case to which sub-paragraph (1) or sub-paragraph (2) applied, a notification under sub-section (2) of Section 33 or under sub-section (3) of Section 49 of this Act involving alteration of the extent of the land proposed to be acquired shall have the effect of correspondingly modifying the notification under sub-section (1) of Section 4 and the declaration under Section 6 of the said, Act so, however that any such modification shall be without prejudice to the validity of anything previously done under the original notification or declaration.
20. Sub-clause 3 of Clause 2 also explains and makes it clear that, an alteration if made by issuing notification under Section 49 (3) which has effect of alteration of the extent of land proposed to be acquired, it will have the effect of correspondingly modifying notifications under sub-section (1) of Section 4 and declaration under Section 6 of Act 1894 but such modification shall be without prejudice to the validity of anything previously done under the original notification or declaration.
21. Reading together the aforesaid provisions it is clear that whatever has already been done in respect to acquisition, that cannot be undone. Further when possession of land is taken by State and transferred to U.P.A.E.V.P, Schedule clause 4 as inserting Section 17(A) in Act 1894 to the following effect will clear the position further:-
"17-A. Transfer to land to Board. - In every case referred to in Section 16 or Section 17, the collector shall upon payment of the cost of acquisition make over charge of the land to the Housing Commissioner, or an officer authorized in this behalf under the Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965, and the land shall, thereupon vest in the Board subject to the liability fo the Board to pay any further costs which may be incurred on account of its acquisition."
22. Considering the entire scheme of statute it is clear that a scheme framed and is under execution can be modified, annulled and remitted for reconsideration to U.P.A.E.V.P by State but that will not have the effect of re-writing events which have already occurred and if certain interests and rights have transferred from one person to another, the same would not stand nullified. The effect of notification under Section 49 (1) would be, moreover, prospective only and not retrospective. The land once taken and divested in State and the Board, will not stand divested and notification under Section 49 cannot have such effect.
23. Same argument was raised in Laxmi Devi Vs State of Bihar and Others (2015) 10 SCC 241 arising from Act 1894 and the Court said "once land has vested in State, the question of re-vesting its possession in the erstwhile land owners is no longer available as an option to the State". The Court further said by giving a restricted interpretation to the decision in Satendra Prasad Jain Vs State of U.P. (1993) 4 SCC 369 that " the State is not empowered to withdraw from the acquisition once it has taken possession of the said land".
24. Learned counsel appearing for respondents could not show any provision or binding authority to this Court to support their stand that once scheme is annulled by issuing notification under Section 49 of Act 1965, all exercise done earlier including vesting of land in State etc. would stand nullified and the land would stand reverted to erstwhile owners.
25. We have no hesitation on observing that once land is vested in State it shall not be divested and reverted to erstwhile owners. Hence right of owners of acquired land to claim compensation under the award already given would subsist and is enforceable in law.
26. The view, we have taken does not make it necessary for us to quash the notification dated 14.09.2001 issued under Section 49 of Act 1965, but we make it clear, that petitioners shall be at liberty to take steps for claiming compensation by execution of award dated 19.09.1988 whereby compensation of land which was acquired by respondents is payable.
27. The writ petition is disposed of with the aforesaid directions/observations and in the manner as above.
Order Date :- 4.5.2016
Pravin
