Allahabad High Court
Brahm Pal vs State Of U.P. And 3 Ors. on 4 October, 2016
Bench: Tarun Agarwala, Vipin Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Reserved
Civil Misc. Writ Petition No.22910 of 2016
Brahm Pal ........ Petitioner
Vs.
State of U.P. and others ........ Respondents
With
Civil Misc. Writ Petition No.45857 of 2016
Shyamveer ........ Petitioner
Vs.
State of U.P. and others ........ Respondents
With
Civil Misc. Writ Petition No.36970 of 2016
Ram Rikh and another ........ Petitioners
Vs.
State of U.P. and others ........ Respondents
With
Civil Misc. Writ Petition No.15796 of 2016
Har Karan Singh ........ Petitioner
Vs.
State of U.P. and others ........ Respondents
With
Civil Misc. Writ Petition No.22897 of 2016
Vijay Pal and others ........ Petitioners
Vs.
State of U.P. and others ........ Respondents
With
Civil Misc. Writ Petition No.22899 of 2016
Sudesh and others ........ Petitioners
Vs.
State of U.P. and others ........ Respondents
With
Civil Misc. Writ Petition No.22906 of 2016
Maganveer and others ........ Petitioners
Vs.
State of U.P. and others ........ Respondents
With
Civil Misc. Writ Petition No.29297 of 2016
Laxman ........ Petitioner
Vs.
State of U.P. and others ........ Respondents
With
Civil Misc. Writ Petition No.31961 of 2016
Yogesh and others ........ Petitioners
Vs.
State of U.P. and others ........ Respondents
With
Civil Misc. Writ Petition No.22901 of 2016
Raje Singh and others ........ Petitioners
Vs.
State of U.P. and others ........ Respondents
With
Civil Misc. Writ Petition No.31345 of 2016
Nanak Chand ........ Petitioner
Vs.
State of U.P. and others ........ Respondents
With
Civil Misc. Writ Petition No.22903 of 2016
Gajraj Singh ........ Petitioner
Vs.
State of U.P. and others ........ Respondents
With
Civil Misc. Writ Petition No.30347 of 2016
Mahaveer and others ........ Petitioners
Vs.
State of U.P. and others ........ Respondents
******************
Hon'ble Tarun Agarwala, J.
Hon'ble Vipin Sinha, J.
(Per: Tarun Agarwala, J.)
(Delivered on 4th October, 2016)
In this batch of writ petitions, the petitioners have prayed for the quashing of the award on various grounds. Since the issues to be decided are common, all the writ petitions are being decided together. For facility, the facts of Writ Petition No.22910 of 2016 is being taken into consideration.
The petitioner Brahm Pal in Writ Petition No.22910 of 2016 has filed the present writ petition questioning the validity and legality of the award dated 10th July, 2015 passed by the Additional District Magistrate (Land Acquisition), District Gautam Budh Nagar in respect of Khasra no.1092/1356 having an area of 0.2960 hectare, Khasra No.1149 having an area of 0.1190 hectare and Khasra No.1187 having an area of 0.2160 in revenue village Patwari, Pargana & Tehsil Dadri, District Gautam Budh Nagar. The petitioner has also prayed for the quashing of consequential action taken by the respondents in respect of the land in village Patwari and has also prayed for a writ of mandamus commanding the respondents not to change the nature and possession of the land in question.
The facts leading to the filing of the writ petition is, that a notification dated 12th March, 2008 was issued by the State Government under Section 4(1) of the Land Acquisition Act, 1984 (hereinafter referred to as the Act) notifying that the land mentioned in the schedule is needed for a public purpose, namely, for a planned industrial development in Gautam Budh Nagar through Greater Noida Industrial Development Authority. The notification also indicated that the provisions of sub-section (1) of Section 17 of the Act was applicable, inasmuch as the land was urgently required for a planned industrial development and, therefore, it was necessary to eliminate the delay to be caused by an inquiry under Section 5A of the Act. The notification indicated that the provision of Section 5A of the Act would not apply and the inquiry under the said provision would be dispensed with. The State Government thereafter, proceeded to issue a declaration under Section 6 of the Act dated 30th June, 2008 and, being satisfied that the case was one of urgency, directed the Collector to take possession of the land in question.
A large number of writ petitions were filed challenging the notifications dated 12th March, 2008 and 30th June, 2008. Writ Petition No.45777 of 2008, Harish Chandra and others Vs. State of U.P. and another came up for consideration before a Division Bench of this Court. The writ Court by a judgment dated 25th November, 2008 dismissed the writ petition and upheld the notifications issued under Sections 4 and 6 of the Act holding that the land was urgently required and there was justification for acquiring the land. Another batch of writ petitions for the same village Patwari came up for consideration before another Division Bench of this Court, the leading case being Writ Petition No.17068 of 2009, Harkaran Singh Vs. State of U.P. and others. These batch of writ petition were allowed by a judgment dated 19th July, 2011 and the notification dated 12th March, 2008 issued under Section 4 and the declaration dated 30th June, 2008 made under Section 6 of the Act were quashed. The Division Bench also directed that possession of the land be given back to the land owners. At this stage, it is to be noted that the petitioner Brahm Pal along with others had also filed Writ Petition No.2074 of 2010 challenging the acquisition proceedings, which was clubbed with writ petition of Har Karan Singh and was allowed by the common judgment dated 19th July, 2011.
A third batch of writ petitions, Gajraj and others Vs. State of U.P. and others, namely, Writ Petition No.37443 of 2011 and other companion writ petitions for the same village Patwari came up for consideration before a third Division Bench. This Division Bench noticed the two conflicting views expressed by two different Division Benches of this Court. This Division Bench passed an order dated 26th July, 2011 expressing a view that a larger Bench was required to be formed for resolving the matter. Based on the said order of the Division Bench, the matter was referred to a Full Bench of three Judges by the Chief Justice.
The Full Bench framed as many as 17 issues for consideration. Relevant issues for consideration of the present controversy are issues no.5, 10, 16 and 17. On the issue of invocation of urgency clause under Sections 17(1) and 17(4) of the Act, the Full Bench held that the invocation of Section 17(4) of the Act by the State Government dispensing the inquiry under Section 5A of the Act while issuing the notification under Section 4 of the Act was vitiated. The Full Bench further held that the dispensation of inquiry being invalid, all the petitioners were entitled for an opportunity to file objections under Section 5A of the Act.
On the question of lapsing of the acquisition proceedings in view of Section 11A of the Act, the Full Bench held that the land acquisition proceedings did not lapse in view of the judgment of the Supreme Court in Satendra Prasad Jain Vs. State State of U.P., 1993 (4) SCC 369, which still holds the field.
On the question of conflict of the two Division Benches of this Court, In Re: Harish Chandra and Har Karan Singh, the Full Bench, after considering all aspects of the matter and the relevant case laws on the subject, held that the Division Bench judgment in Harish Chandra's case cannot be approved and that the Division Bench judgment in Har Karan Singh was required to be followed. The Full Bench held:-
"The Division Bench judgment in Harkaran Singh's case have referred to Anand Singh's case (supra) which had relied on Narayan Singh Gautey's case. The Division Bench in Harkaran Singh has also relied on Radhey Shyam case (supra) which was fully applicable on the issues which have arisen in the present case. In view of the aforesaid discussion we are of the view that Division Bench judgment in Harishchand cannot be approved and the Division Bench judgment in Harkaran Singh is to be followed."
and further held:-
"In view of the foregoing discussions we are of the view that Division Bench judgement in Harishchand case is not be approved whereas the view taken in the Division Bench judgement in Harkaran Singh that the invocation of Section 17(4) was not justified is approved."
The Full Bench categorically held that the decision in Harish Chandra's case cannot be approved and the decision in Har Karan Singh's case is to be followed, namely, that the invocation of Section 17(4) of the Act was not justified.
After holding that the invocation of Section 17(4) of the Act was not justified, the Full Bench considered other factors, namely, third party rights, development of the area after acquisition, etc. and gave the following reliefs:-
"1. The Writ Petition No. 45933 of 2011, Writ Petition No. 47545 of 2011 relating to village Nithari, Writ Petition No. 47522 of 2011 relating to village Sadarpur, Writ Petition No. 45196 of 2011, Writ Petition No. 45208 of 2011, Writ Petition No. 45211 of 2011, Writ Petition No. 45213 of 2011, Writ Petition No. 45216 of 2011, Writ Petition No. 45223 of 2011, Writ Petition No. 45224 of 2011, Writ Petition No. 45226 of 2011, Writ Petition No. 45229 of 2011, Writ Petition No. 45230 of 2011, Writ Petition No. 45235 of 2011, Writ Petition No. 45238 of 2011, Writ Petition No. 45283 of 2011 relating to village Khoda, Writ Petition No. 46764 of 2011, Writ Petition No. 46785 of 2011 relating to village Sultanpur, Writ Petition No. 46407 of 2011 relating to village Chaura Sadatpur and Writ Petition No. 46470 of 2011 relating to village Alaverdipur which have been filed with inordinate delay and laches are dismissed.
2(i) The writ petitions of Group 40 (Village Devla) being Writ Petition No. 31126 of 2011, Writ Petition No. 59131 of 2009, Writ Petition No. 22800 of 2010, Writ Petition No. 37118 of 2011, Writ Petition No. 42812 of 2009, Writ Petition No. 50417 of 2009, Writ Petition No. 54424 of 2009, Writ Petition No. 54652 of 2009, Writ Petition No. 55650 of 2009, Writ Petition No. 57032 of 2009, Writ Petition No. 58318 of 2009, Writ Petition No. 22798 of 2010, Writ Petition No. 37784 of 2010, Writ Petition No. 37787 of 2010, Writ Petition No. 31124 of 2011, Writ Petition No. 31125 of 2011, Writ Petition No. 32234 of 2011, Writ Petition No. 32987 of 2011, Writ Petition No. 35648 of 2011, Writ Petition No. 38059 of 2011, Writ Petition No. 41339 of 2011, Writ Petition No. 47427 of 2011 and Writ Petition No. 47412 of 2011 are allowed and the notifications dated 26.5.2009 and 22.6.2009 and all consequential actions are quashed. The petitioners shall be entitled for restoration of their land subject to deposit of compensation which they had received under agreement/award before the authority/Collector.
2(ii) Writ petition No. 17725 of 2010 Omveer and others Vs. State of U.P. (Group 38) relating to village Yusufpur Chak Sahberi is allowed. Notifications dated 10.4.2006 and 6.9.2007 and all consequential actions are quashed. The petitioners shall be entitled for restoration of their land subject to return of compensation received by them under agreement/award to the Collector.
2(iii) Writ Petition No.47486 of 2011 (Rajee and others vs. State of U.P. and others) of Group-42 relating to village Asdullapur is allowed. The notification dated 27.1.2010 and 4.2.2010 as well as all subsequent proceedings are quashed. The petitioners shall be entitled to restoration of their land.
3. All other writ petitions except as mentioned above at (1) and (2) are disposed of with following directions:
(a) The petitioners shall be entitled for payment of additional compensation to the extent of same ratio (i.e. 64.70%) as paid for village Patwari in addition to the compensation received by them under 1997 Rules/award which payment shall be ensured by the Authority at an early date. It may be open for Authority to take a decision as to what proportion of additional compensation be asked to be paid by allottees. Those petitioners who have not yet been paid compensation may be paid the compensation as well as additional compensation as ordered above. The payment of additional compensation shall be without any prejudice to rights of land owners under section 18 of the Act, if any.
(b) All the petitioners shall be entitled for allotment of developed Abadi plot to the extent of 10% of their acquired land subject to maximum of 2500 square meters. We however, leave it open to the Authority in cases where allotment of abadi plot to the extent of 6% or 8% have already been made either to make allotment of the balance of the area or may compensate the land owners by payment of the amount equivalent to balance area as per average rate of allotment made of developed residential plots.
4.The Authority may also take a decision as to whether benefit of additional compensation and allotment of abadi plot to the extent of 10% be also given to;
(a) those land holders whose earlier writ petition challenging the notifications have been dismissed upholding the notifications; and
(b) those land holders who have not come to the Court, relating to the notifications which are subject matter of challenge in writ petitions mentioned at direction No.3.
5. The Greater NOIDA and its allottees are directed not to carry on development and not to implement the Master Plan 2021 till the observations and directions of the National Capital Regional Planning Board are incorporated in Master Plan 2021 to the satisfaction of the National Capital Regional Planning Board. We make it clear that this direction shall not be applicable in those cases where the development is being carried on in accordance with the earlier Master Plan of the Greater NOIDA duly approved by the National Capital Regional Planning Board.
6. We direct the Chief Secretary of the State to appoint officers not below the level of Principal Secretary (except the officers of Industrial Development Department who have dealt with the relevant files) to conduct a thorough inquiry regarding the acts of Greater Noida (a) in proceeding to implement Master Plan 2021 without approval of N.C.R.P. Board, (b) decisions taken to change the land use, (c) allotment made to the builders and (d) indiscriminate proposals for acquisition of land, and thereafter the State Government shall take appropriate action in the matter.
The decision of the Full Bench in Gajraj and others Vs. State of U.P. and others dated 21st October, 2011 is reported in 2011 (11) ADJ 1.
The land owners also filed Special Leave Petition against the decision of the Full Bench in Gajraj and others before the Supreme Court being Civil Appeal No.4506 of 2015, Savitri Devi Vs. State of U.P. and others and other companion appeals. The appeal of the land owners in Savitri Devi's case was disposed of by the Supreme Court affirming the decision of the Full Bench in Gajraj's case by a judgment dated 14th May, 2015. The Supreme Court observed that the Full Bench of the High Court had accepted the plea of the land owners that the invocation of the emergency clause contained in Section 17 of the Act was impermissible and unwarranted. At the same time, the Supreme Court observed that the High Court after noticing that possession of the land in many villages had been taken and substantial development work had been carried out and compensation was also paid in some cases, the High Court instead of quashing the notification adopted a middle path in an endeavour to balance the equities of both the sides. The Supreme Court observed that instead of quashing the notification the High Court had enhanced the compensation and also directed allotment of developed abadi land to the extent of 10%. The Supreme Court in Savitri Devi's case observed:-
"From the aforesaid, it is clear that three sets of directions are issued by the High Court, namely, (i) dismissing writ petitions filed with unexplained delays and laches; (ii) quashing the notification in respect of three villages where no development work had taken place; and (iii) in respect of other villages, instead of quashing the action of acquisition of land inspite of accepting the plea that Section 17 was wrongly invoked, it has enhanced the compensation as well as extent of entitlement for allotment of developed Abadi plot."
and further observed:-
"It becomes clear from the above that the High Court arrived at a conclusion that since invocation of Section 17(1) and 17(4) was uncalled for and unwarranted, the acquisition of the land of the appellants herein was illegal. Notwithstanding, the same, the High Court did not grant the relief of setting aside the entire acquisition and restoring the land to the appellants. After the aforesaid findings, the High Court observed that insofar as grant of particular relief to the land owners in land acquisition proceedings is concerned, it depends on several important factors. Thus, the issue of 'reliefs' has been discussed specifically and independently under the aforesaid caption. Here, the High Court has observed that the creation of third party rights, development undertaken over the land in dispute as well as the steps taken by the land owners after declaration made under Section 6 of the Act would be the relevant consideration in determining the kind of relief that is to be granted to the land owners. Discussing the aforesaid aspects in the contexts of these proceedings, the High Court pointed out that in majority of cases third party rights had been created after issue of declaration under Section 6 and after taking possession of the land, substantial developments including constructions had been undertaken. Thus, in those cases where substantial development had taken place and/or third party rights had been created, the High Court deemed it proper not to interfere with the acquisition. At the same time in order to balance the equities, it felt that grant of higher compensation and better share in the developed land to these land owners would meet the ends of justice. The exact relief given in this behalf shall be stated at the appropriate stage."
The Supreme Court after analysing the matter held that the Full Bench was justified in holding that the invocation of emergency clause contained in Section 17 of the Act was impermissible and unwarranted. The Supreme Court further held that the High Court instead of quashing the notification chose to adopt the middle path and had gone an extra mile in finding the solution to the problem and balancing the equities in a manner, which was favourable to the land owners. The Supreme Court held that the High Court rightly considered the ground realities and arrived at a more practical and workable solution by adequately compensating the land owners in the form of additional compensation as well as allotment of developed abadi land instead of quashing the notifications. The Supreme Court, accordingly, declined to interfere in the decision of the Full Bench decision in Gajraj's case.
Greater Noida challenged the judgment in Har Karan Singh's case dated 19th July, 2011 by filing a Special Leave Petition before the Supreme Court as well as challenged the decision of the Full Bench in Gajraj's case dated 21st October, 2011, namely, Special Leave Petition (Civil) No.19301 of 2012, Greater Noida Industrial Development Authority Vs. Pramod and others and other companion appeals.
The Supreme Court disposed of the SLPs by a judgment dated 3rd February, 2015 by affirming the decision of the Full Bench holding that in the peculiar facts, the High Court was justified in allotting 10% of developed land to the land owners while sustaining the notifications issued by the authority under Sections 4 and 6 of the Act.
After the decision of the Supreme Court in Savitri Devi's case dated 14th May, 2015, the award dated 10th May, 2015 was made by the Additional District Magistrate (Land Acquisition) in respect of village Patwari, which has been questioned in these batch of writ petitions.
We have heard Sri Shashi Nandan, the learned Senior Counsel assisted by Shri Shiv Kant Mishra, the learned counsel for the petitioner, Sri Santosh Singh, the learned counsel for the petitioner in the connected writ petition, Sri Ravindra Kumar and Sri Ramendra Pratap Singh, the learned counsel for Greater NOIDA and Sri Kamal Singh Yadav, the learned Additional Advocate General assisted by Sri R.S. Prasad, the learned Chief Standing Counsel.
The contention of Sri Shashi Nandan, the learned Senior Counsel for the petitioners is, that the decision of the Division Bench of this Court in Har Karan Singh's case dated 19th July, 2011 has been affirmed and has become final inter-se between the parties. The Division Bench in Har Karan Singh's case had quashed the notifications issued under Sections 4 and 6 of the Act relating to village Patwari and, consequently, no award could be made determining the compensation. It was contended that the Full Bench had approved the decision of the Division Bench in Har Karan Singh's case and, therefore, the notifications issued under Sections 4 and 6 of the Act, which had been quashed had in fact been affirmed by the Full Bench, which decision has also been affirmed by the Supreme Court and, therefore, no award could be made. An alternate argument was raised that assuming Har Karan Singh's decision had been overruled directly or impliedly, the award, if any, could have been made and determined only under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as the Act of 2013), inasmuch as the said Act of 2013 came into existence with effect from 1st January, 2014. The Land Acquisition Act stood repealed in view of Section 114 of the Act of 2013. It was urged that the award could not be made under the Land Acquisition Act which had already been repealed.
Sri K.S. Yadav, the learned Additional Advocate General on behalf of the State Government contended that most of the land owners have already taken compensation pursuant to an agreement executed between the parties under the Karar Niyamawali, 1997. It was contended that the Full Bench in Gajraj's case did not quash the notifications under Sections 4 and 6 of the Act in relation to village Patwari and in fact granted relief to the land owners by giving additional compensation and 10% developed abadi land. It was contended that the judgment of Har Karan Singh's case merged in the decision of the Full Bench and that the Full Bench decision was affirmed by the Supreme Court in Savitri Devi's case.
Sri Ravindra Kumar along with Sri Ramendra Pratap Singh, the learned counsels for the Greater Noida also submitted that the Full Bench approved Har Karan Singh's judgment only to the extent that the invocation of Section 17(4) of the Act by the State Government was not approved. It was urged that the Full Bench however, did not quash the notifications issued under Sections 4 and 6 and, in fact, upheld the notifications in so far as it related to village Patwari. The learned counsel contended that the Supreme Court in Savitri Devi's case considered this fact and held that inspite of holding that the invocation of emergency clause was impermissible and unwarranted, the High Court rightly did not quash the notifications and chose to adopt the middle path by paying enhanced compensation and allotment of developed abadi land to the extent of 10%. The learned counsel further contended that the determination of compensation in terms of the decision of the Full Bench in Gajraj's case was made by the authority under the Act of 2013 and not under the old Act. It was contended that the contention raised by the petitioners is patently misconceived and that the writ petitions were liable to be dismissed.
Having heard the learned counsel for the petitioners at some length and having given our thoughtful consideration, we find that the contention raised by the petitioners cannot be accepted.
No doubt, the Full Bench approved the decision of the Division Bench in Har Karan Singh's case but not the entire judgment. The Full Bench only approved the decision of Har Karan Singh's case in so far as the invocation of Section 17(4) of the Act was concerned. The Full Bench while considering issue no.5 held that the invocation of Section 17(4) of the Act by the State Government dispensing with the inquiry under Section 5A of the Act while issuing notification under Section 4 of the Act was vitiated. The dispensation of inquiry being invalid, all the petitioners were entitled for an opportunity to file objection under Section 5A of the Act. After giving the aforesaid finding, the Full Bench consequently, approved the decision of Har Karan Singh's case to that extent.
The Division Bench in Har Karan Singh's decision quashed the notifications under Section 4 and 6 of the Act. The Full Bench however, did not quash the notifications under Section 4 and 6 in so far as village Patwari was concerned. The Full Bench considered other factors, namely, that possession of the land in many villages had taken place and substantial development work had been carried out, apart from the fact that compensation was paid to a large number of land owners. The Full Bench instead of quashing the notifications adopted a middle path in an endeavour to balance the equities of both the sides and instead of quashing the notifications, enhanced the compensation and also directed allotment of developed land to the extent of 10% to the land owners. The Supreme Court affirmed the judgment of the Full Bench holding that in the peculiar facts and circumstances, the High Court was justified in not quashing the notifications and was further justified in adopting the middle path.
We also find that the decision of Har Karan Singh's case was challenged by Greater Noida before the Supreme Court in Greater Noida Vs. Pramod and others, which was disposed of by judgment of the Supreme Court dated 3rd February, 2015. The Supreme Court disposed of the SLP in terms of the decision of the Full Bench in Gajraj's case contending that in the peculiar facts and circumstances, the High Court was justified in adopting the middle path and paying the land owners additional compensation and developed land. The SLP's of the Greater Noida challenging the decision of the High Court in Har Karan Singh's case was disposed of in terms of the decision of the Full Bench. Thus, the decision of the Division Bench in Har Karan Singh's case merged in the decision of the Supreme Court in the case of Greater Noida Vs. Pramod and others. In effect the decision of the Division Bench in Har Karan Singh's case was impliedly overruled. The decision of the Full Bench in Gajraj's case relating to village Patwari holds the field, namely, that the invocation of Section 17(4) of the Act by the State Government was invalid but the notifications issued under Section 4 and 6 of the Act would not be vitiated on that account but were saved by making payment of additional compensation and allotment of developed abadi land to the extent of 10%.
The contention of the learned Senior Counsel for the petitioner contending that the decision of Har Karan Singh's case was affirmed by the Full Bench and by the Supreme Court is misconceived and cannot be accepted.
The contention raised by the petitioners that the award has been made under the old Act is patently misconceived. From a perusal of the award, we find that the determination of the compensation has been made in accordance with the provisions of the Act of 2013. Mere reference of the old Act in the award does not mean that the award has been made under the old Act. We find that the determination of the compensation has been made in accordance with Section 24 and 25 of the Act of 2013. The contention raised by the petitioner on this score is patently misconceived and is rejected.
A feeble attempt was made that the award was made after two years and in view of Section 11A of the old Act, the award stood vitiated. Admittedly, Section 17(1) of the Act was invoked and possession was taken. The Full Bench in Gajraj's case dealt with this question holding that the acquisition proceedings does not lapse in view of the invocation of Section 17 of the Act and that the decision of the Supreme Court in Satendra Prasad Jain's (supra) still holds the field. Thus, the petitioner cannot raise the same issue again, which has been dealt with by the Full Bench. In any case, we find that pursuant to the decision of the Supreme Court on 14th May, 2015 in Savitri Devi's case impugned award was immediately made on 10th July, 2015. We find that there is no illegality in the award nor can it quashed on the ground urged by the petitioners.
In the light of the aforesaid, we do not find any merit in the batch of writ petitions. All the writ petitions fail and are dismissed.
In the circumstances of the case, parties shall bear their own cost.
Date:4.10.2016
Bhaskar
(Vipin Sinha, J.) (Tarun Agarwala, J.)
