Allahabad High Court
Brahma Dev And Others vs State Of U.P. Thru Secy. And Others on 3 August, 2017
Bench: Arun Tandon, Ritu Raj Awasthi
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 10
Case :- WRIT - C No. - 29011 of 2012
Petitioner :- Brahma Dev And Others
Respondent :- State Of U.P. Thru Secy. And Others
Counsel for Petitioner :- Ranjeet K. Yadav
Counsel for Respondent :- C.S.C.,Akhilanand Misra,Dhananjay Awasthi
And.
Case :- WRIT - C No. - 61797 of 2013
Petitioner :- Radheshyam And 9 Others
Respondent :- State Of U.P. Thru Secy. And 5 Others
Counsel for Petitioner :- Ranjeet K. Yadav
Counsel for Respondent :- C.S.C.,Akhilesh Mishra,Nripendra Mishra
Case :- WRIT - C No. - 10004 of 2012
Petitioner :- Bajnath Prasad Yadav And Others
Respondent :- State Of U.P. Thru Secy. And Others
Counsel for Petitioner :- Ranjeet K. Yadav
Counsel for Respondent :- C.S.C.,Akhilanand Mishra,Dhananjay Awasthi
Case :- WRIT - C No. - 12609 of 2012
Petitioner :- Janardan And Others
Respondent :- State Of U.P. Thru Secy. And Others
Counsel for Petitioner :- Ranjeet K. Yadav
Counsel for Respondent :- C.S.C.,Akhilanand Mishra,Dhananjay Awasthi
Case :- WRIT - C No. - 29119 of 2012
Petitioner :- Ram Rekha And Others
Respondent :- State Of U.P. Thru Secy. And Others
Counsel for Petitioner :- Ranjeet K. Yadav
Counsel for Respondent :- C.S.C.,Akhil Anand Mishra,Dhananjay Awasthi
Case :- WRIT - C No. - 68388 of 2012
Petitioner :- Ganesh And Others
Respondent :- State Of U.P. Thru Secy. And Others
Counsel for Petitioner :- Ranjeet K. Yadav
Counsel for Respondent :- C.S.C.,Akhilanand Mishra,Dhananjay Awasthi
Case :- WRIT - C No. - 68504 of 2012
Petitioner :- Ram Narayan And Others
Respondent :- State Of U.P. Thru Secy. And Others
Counsel for Petitioner :- Ranjeet K. Yadav
Counsel for Respondent :- C.S.C.,Akhilanand Mishra,Dhananjay Awasthi
Case :- WRIT - C No. - 48929 of 2013
Petitioner :- Vijay Pratap & 3 Ors.
Respondent :- State Of U.P. And 4 Ors.
Counsel for Petitioner :- Vishnu Sahai,B. Dayal
Counsel for Respondent :- C.S.C.,A.N. Mishra,Dhananjay Awasthi,Nripendra Mishra
Case :- WRIT - C No. - 62474 of 2013
Petitioner :- Ramhit And 10 Others
Respondent :- State Of U.P. Thru Secy. And 5 Others
Counsel for Petitioner :- Ranjeet K. Yadav
Counsel for Respondent :- C.S.C.,Akhilanand Mishra,Akhilesh Mishra,Nripendra Mishra
Case :- WRIT - C No. - 64070 of 2013
Petitioner :- Mahendra Pratap And 9 Others
Respondent :- State Of U.P. Thru Secy. And 5 Others
Counsel for Petitioner :- Ranejet K. Yadav
Counsel for Respondent :- C.S.C.,Nripendra Mishra
Case :- WRIT - C No. - 67898 of 2013
Petitioner :- Prahlad & 13 Others
Respondent :- State Of U.P. & 5 Others
Counsel for Petitioner :- Ranjeet K. Yadav
Counsel for Respondent :- C.S.C.,Akilanand Mishra,Nripendra Mishra
Case :- WRIT - C No. - 68545 of 2013
Petitioner :- Indradev & 9 Others
Respondent :- State Of U.P. & 5 Others
Counsel for Petitioner :- Ranjeet K. Yadav
Counsel for Respondent :- C.S.C.,Nripendra Mishra
Case :- WRIT - C No. - 65810 of 2011
Petitioner :- Sampat And Others
Respondent :- State Of U.P. Thru Secy. And Others
Counsel for Petitioner :- Vishnu Sahai,B. Dayal
Counsel for Respondent :- C.S.C.,Akhilanand Mishra,Dhananjay Awasthi,Nripendra Mishra
Case :- WRIT - C No. - 42339 of 2012
Petitioner :- Deva Nand Shukla
Respondent :- State Of U.P. Thru Secy. And Others
Counsel for Petitioner :- N.K. Chaturvedi
Counsel for Respondent :- C.S.C.,Akhilanand Mishra,D Awasthi
Along with.
Case :- WRIT - C No. - 58459 of 2013
Petitioner :- Amrit Singh And 12 Others
Respondent :- State Of U.P. Thru Secy. And 4 Others
Counsel for Petitioner :- Vishnu Sahai,B. Dayal
Counsel for Respondent :- C.S.C.,Akhilanand Mishra,Nripendra Mishra
Hon'ble Arun Tandon,J.
Hon'ble Ritu Raj Awasthi,J.
This bunch of writ petitions has been filed for quashing of notification issued under Section 4 of Land Acquisition Act, 1989 dated 22.5.2006 and the notification issued under Section 6 of the same Act dated 22.6.2007.
The basic ground for challenging the aforesaid notification by the recorded tenure holders-the petitioners is that invocation of powers under Section 17 read with Section 5-A of Land Acquisition Act for dispensing with the enquiry in the facts of the case is arbitrary. It is pointed out that there was absolutely no material with the State Government which could justify the invocation of the powers under Section 17 read with Section 5-A of the Land Acquisition Act. It is further stated that the Apex Court in the case of Radhey Shyam (Dead) through L.Rs. and others Vs. State of U.P. And others; JT 2011 (4) SC 524 has already clarified that where the land is proposed to be acquired for planned development of a development authority the invocation of powers under Section 17 read with Section 5-A of Land Acquisition Act would be unjustified. It is therefore submitted that in the facts of the case notification cannot be legally sustained and be quashed.
We had called upon the State of Uttar Pradesh to explain the material which was available with the State Government for invocation of powers under Section 17 read with Section 5-A of Land Acquisition Act. The original records were also produced and were examined by the Court. The photostat copy of the certificate issued by the District Magistrate in that regard dated 5.2.2005 has been made available to the Court, which is kept on record.
Learned counsel for respondent-Gorakhpur Industrial Development Authority would submit that the writ petition has been filed after five years of the Section 6 notification and is therefore should not be entertained on the ground of latches and he has placed reliance on the judgment of Division Bench of this Court in the case of Mahendra Pratap Narain and another Vs. State of U.P. And others being Writ-C No.24004 of 2012, decided on 19.07.2017, as well as upon the judgment of Apex Court in the case of The Ramjas Foundation & others Vs. Union of India and others; AIR 1993 SC 852 as well as State of Tamil Nadu & others Vs. L. Krishnan & others: (1996) 1 SCC 250.
We have heard learned counsel for the parties and examined the records of present writ petitions.
We must first examine the issue as to whether there has been unexplained latches on the part of the petitioner in approaching this Court and whether in the facts of the case this Court should refuse exercise of discretion under Article 226 of Constitution of India on the ground of delay/latches.
From the contents of the present writ petition we find that in paragraph 23 it has specifically been stated that the possession of the land still continues with the petitioner. In paragraphs 29 and 32 it has specifically been stated that before taking possession it is mandatory that the recorded tenure holder is paid minimum 80 per cent of the compensation which in the facts of the case has not been so paid.
The averments so made are more or less been admitted in counter affidavit filed by the State authorities as well as other respondents. Counsel for the private party to whom the acquired land is stated to have been transferred admitted before us that the possession of the land is despite still continues with the petitioners.
We had required the State of Uttar Pradesh to file an affidavit indicating as to whether possession of the land still continues with the tenure holders or not. An affidavit has been filed by the Land Acquisition Officer today which is kept on record and in paragraph 9 it has been stated that the actual physical possession of the land still continues with the tenure holders.
Learned counsel for the petitioner has made reference to the award which was published on 3.7.2008, against which they had already filed a reference application.
In the circumstances of the case when the possession of the acquired land had not been taken for nearly five to six years even after the notification under Section 6 when urgency clause had been invoked in exercise of powers under Section 5 read with Section 17 of the Land Acquisition Act in our opinion is sufficient for this court to come to a conclusion that in fact there was no urgency. Since the possession of the land has continued all along with the petitioners during all this period it will not be fair to unsuit them on the ground of alleged delay or latches.
We are therefore of the opinion that in the facts of the case the writ petition need not be dismissed on the ground of delay/latches. The judgment relied upon by the learned counsel for the petitioners in the case of Mahendra Pratap Narain and another (supra), The Ramjas Foundation & others (supra) and State of Tamil Nadu & others Vs. L. Krishnan & others (supra) are clearly distinguishable in the facts of the case.
It is not in dispute that the Apex Court in the case of Radhey Shyam (Dead) through L.Rs. and others Vs. State of U.P. And others (supra) has been laid down that if the land is proposed to be acquired for the planned development of a development authority then invocation of powers under Section 17 read with Section 5-A of Land Acquisition Act for dispensing with the opportunity contemplated therein would be bad. Following law laid down in the said judgment the Hon'ble Supreme Court there remains nothing much for this court to decide inasmuch as from the notification under challenge it is writ large that the land was proposed to be acquired for planned development of Gorakhpur Industrial Development Authority.
However, we had examined the original records of the State Government for satisfying ourselves as to whether in the facts of the case there were relevant facts for invocation of the powers under Section 17 read with Section 5-A of the Act or not. The certificate issued by the Collector dated 5.2.2005 in respect of the acquisition of the land in question reads as under:-
"izi+= la[;k &10
/kkjk 14 ¼1½@17 ds vUrZxr Hkw&vtZu ds izLrko ds fy, /kkjk &17 ykxw fd;s tkus dk izk:i
izek.k&i=
¼'kklukns'k la[;k&7&3¼1½@90&59 Vh0lh0 fnukWad 12&6&1996 o [email protected]&13&2004&7&3 ¼1½90]95 Vh0lh0 jk&13 fnukad 06&08&2004 ds vuqlkj½
tuin xksj[kiqj ds xzke&fiijk ,oa rsuqgkjh esa vftZr dh tk jgh Hkwfe 110-339 gsDVs;j xksj[kiwj vkS|ksfxd fodkl izkf/kdj.k] foHkkx dh ifj;kstuk vkS|ksfxd fodkl ds /kkjk [email protected] ds izLrko esa LFky p;u lfefr ds LFky fujh{k.k fnukad 03&12&2004 dh layXu fjiksVZ ¼'kklu ds v)Z'kkldh; i=&la[;k &[email protected]@[email protected]&Hkw0 m0 [email protected]&99 fnukad 05&02&93 ds vuqlkj rS;kj½ dk eSusa Hkyh HkkWafr ijh{k.k fd;kA
mDr Hkwfe ds mDr vf/kxzg.k esa ifj;kstuk dks vfoyEc iw.kZ fd;s tkus dh vko';drk ds dkj.k rkRdkfyd izHkko ls izHkkfor Hkwfe dk dCtk fy;k tkuk vR;Ur vko';d gSA Hkwfe v/;kfir vf/kfu;e dh /kkjk &17 dk iz;ksx fd;s tkus dh n'kk esa vf/kfu;e dh /kkjk 5d ds micU/k foyqIr gks tkrs gSa vkSj Hkwfe Lokfe;ksa dks lquok;h dk volj lekIr fd;s tkus ds vkSfpR; ls eSa iw.kZr;k lger gwWaA
eSa fo'okl fnykrk gwWa fd /kkjk [email protected] dh vf/klwpuk tkjh ,oa izdkf'kr fd;s tkus ij izR;sd n'kk esa vtZu fudk;@foHkkx dks rRdkfyd :i ls dCtk fnyk nwWaxkA
fnukad gLrk{kj [email protected]/kdkjh"
From a simple reason of the aforesaid certificate of the District Magistrate it is apparently clear that absolutely no facts/reasons were disclosed as to why it was necessary to invoke the urgency clause. What has been stated is that if the land is acquired the District Magistrate shall ensure immediate delivery of the possession. This in our opinion cannot be the basis for justifying the exercise of powers under Section 17 read with Section 5-A of the Land Acquisition Act.
For all the aforesaid reasons the acquisition in question cannot be legally sustained and is hereby quashed viz a viz the petitioners only.
We have been informed that some of the petitioners had been paid compensation and that the land has been transferred to a private entity namely respondent no.5 who is represented by Sri Akhilanand Misra, Advocate. Sri Akhilanand Misra pointed out to the Court that respondent has made payment of eight crores and odd to the Gorakhpur Industrial Development Authority for the land subject matter of the acquisition and this money may be put in jeopardy if adequate measures are not provided for safeguarding the interest of the private respondents. Further a some of rupees forty five lacs had been paid towards stamp duty on the deed executed.
In view of the aforesaid, the acquisition notification under Section 4 of Land Acquisition Act dated 22.05.2006 and declaration under Section 6 of Land Acquisition Act dated 22.06.2007 are hereby set aside. However, we provide that if the development authority wants to have the possession of the acquired land then following the law laid down by the Apex Court rendered on 30 November 2016 in Civil Appeal No.11501 of 2016 (M/s Sahara India Commercial Corporation Limited and others Vs. State of U.P. and others) they may exercise the option of making payment of compensation in accordance with the provisions of Section 23 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. The date of this judgment shall be treated to be the date of acquisition notification for the purpose. Such payment must be made to the tenure holders within three months.
So for as the private respondent is concerned he is at liberty to approach the Gorakhpur Industrial Development Authority for return of their money and the State Government for refund of the stamp duty which they had paid in respect of the deed executed in respect of the land in dispute. The authority shall take appropriate decision on the application within one month. We further clarify that the petitioners shall continue in possession until the payment is made. If the compensation is agreed to be paid under the Transparency Act for retaining the acquired land then it shall always be open to the State to adjust the money which they had already paid to the petitioners tenure holders towards compensation or exgratia payment, as the case may be.
Writ petitions are allowed.
(Ritu Raj Awasthi, J.) (Arun Tandon J.)
Order Date :- 3.8.2017
Ram.
