Ramesh Chandra Sharma & Ors. vs State Of U.P. & Others
2017 Latest Caselaw 2050 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No. - 29
 

 
Case :- WRIT - C No. - 49326 of 2009
 
Petitioner :- Ramesh Chandra Sharma & Ors.
 
Respondent :- State Of U.P. & Others
 
Counsel for Petitioner :- K.M. Asthana,H.R. Mishra,K.M. Asthana
 
Counsel for Respondent :- C.S.C.,Ramendra P. Singh
 
Connected with
 
Case :- WRIT - C No. - 47539 of 2009
 
Petitioner :- Jageshwar @ Jage & Others
 
Respondent :- State Of U.P. & Others
 
Counsel for Petitioner :- Dheeraj Singh Bohra,Anil Sharma
 
Counsel for Respondent :- C.S.C.,Ramendra P. Singh
 
And
 
Case :- WRIT - C No. - 16110 of 2010
 
Petitioner :- Lakhan Lal Aggarwal
 
Respondent :- State Of U.P. Thru. Spl. Secr. Industrial Devp. & Ors.
 
Counsel for Petitioner :- K.M. Asthana
 
Counsel for Respondent :- C.S.C.,Ramendra P. Singh
 

 
Hon'ble Tarun Agarwala,J.

Hon'ble Vivek Chaudhary,J.

(Per: Vivek Chaudhary, J.)

(Delivered on 7th July, 2017)

1. These three writ petitions raise a common question of law, namely, whether the classification of "Pushtaini" and "Gairpushtaini" farmers, created by the Greater Noida Authority for the purposes of paying compensation to the farmers, whose land has been acquired under the same notifications and for the same public purpose, is a reasonable classification or is hit by arbitrariness under Article 14 of the Constitution of India. For the purpose of convenience and brevity, the facts and dates of writ petition no.49326 of 2009 are being referred to.

2. The admitted facts, in brief, is that Greater Noida Authority was established on 28.01.1991. All the petitioners purchased their agricultural land within the area of the said authority after its establishment. On 28.10.1997 the Authority classified the farmers for the purposes of payment of compensation for acquisition of their lands between "Pushtaini" namely those persons who had purchased the land prior to the date of the establishment of the Authority or thereafter got the land by partition or family settlement, and, "Gairpushtaini" being those persons who purchased the land after its establishment. The petitioners thus are Gairpushtaini farmers.

3. By a notification dated 03.01.2005 issued under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as Land Acquisition Act) and notification dated 05.01.2006 issued under section 6 (1) read with section 17 (1) of the Land Acquisition Act, the holdings of the petitioners were acquired along with that of other farmers. These notifications included holdings of both Pushtaini and Gairpushtaini farmers. The petitioners along with other farmers entered into agreements with the Authority on 15.07.2006 under Rule 4 (2) of U.P. Land Acquisition (Determination of Compensation and Declaration of Award by Agreement) Rules 1997 (hereinafter referred to as the Rules of 1997). Under the said agreement also, a difference was maintained and the petitioners being Gairpushtaini farmers were paid compensation @ Rs.280/- per sq. yard, while the Pushtaini farmers under the same acquisition were paid compensation @ Rs.322/- per sq. yard. There was an agitation by the farmers at large for better compensation. A committee was set up which submitted a report and which was accepted by the Board's resolution dated 03.11.2008, and duly approved by the State Government. The Pushtaini farmers were accordingly further paid compensation @ Rs.310/- per sq. metre (Rs.259.27 per sq. yard) while no further compensation was given to "Gairpushtaini" farmers.

4. Aggrieved by the same, the petitioners have filed the present writ petitions challenging the classification of Pushtaini and Gairpushtani farmers being arbitrary and violative of Article 14 of the Constitution of India and claimed compensation on parity.

5. At the very initial stage, a preliminary objection was raised by Sri Ramendra Pratap Singh, the learned counsel for the Greater Noida Authority, contending that this classification made by the Greater Noida Authority was also adopted by the Noida Authority and a Division Bench of this Court in the case of Smt. Madhuri Srivastava Vs. State of U.P. And others, 2016 (6) ADJ 1 has dismissed the writ petitions challenging the said classification on two grounds namely;

i) since the tenure holders have signed the agreements and accepted compensation in terms of the agreements entered into under the Rules of 1997, they cannot later file petitions for higher compensation;

ii) the classification of Pushtaini and Gairpushtaini is a reasonable classification having a direct nexus with the object sought to be achieved i.e. proper rehabilitation of original residents.

It was urged that in view of the judgment of the coordinate bench, the present writ petitions should be dismissed.

6. We have heard Sri Shashi Nandan, learned Senior Advocate assisted by Sri K.M. Asthana, Sri Anil Sharma and Sri D.S. Bohra for the petitioners and Sri Ramendra Pratap Singh for the Greater Noida Authority at length and have gone through the judgment of the Division Bench in the case of Smt. Madhuri Srivastava (Supra). We are unable to agree with the findings of the said Division Bench on both the issues.

7. In so far as the first ground is concerned, the finding in the case of Smt. Madhuri Srivastava (Supra) is contained in paragraph no. 20 of the said judgment, which is extracted hereunder:

"In the present case this fact is not denied that the petitioners have entered into agreement to receive compensation at the rate fixed for 'gair pushtaini' farmers. A Division Bench of this Court in the case of Preetam Singh v. State of UP. And others, Civil Misc. Writ Petition No.49110 of 2009 connected with bunch of writ petition, decided on 18.12.2009 in context of provisions quoted above, has clearly taken the view that once incumbents have signed the agreement and accepted compensation in terms of agreement, then such incumbents are not entitled for higher compensation, and cannot claim enhancement of amount. We re-affirm the same view."

8. The said issue was also considered by a Full Bench of this Court in the case of Gajraj Singh and others v. State of U.P. and others, 2011 (11) ADJ 1 (FB). The Full Bench referred to both the issues of waiver and acquiescence in case of agreements entered into by the farmers under the Rules of 1997. The Full Bench rejected the objections of the respondents on the maintainability of the petitions on the ground of waiver and acquiescence which has not been considered in the right perspective by the Division Bench. Paragraphs 394 to 413 are extracted hereunder:

"394. Learned counsel for the petitioners have rightly contended that the acceptance of compensation under the 1997 Rules, is not voluntarily, but is due to force of circumstances and the compulsion. The land of poor farmers have been acquired and possession having been claimed to be taken by invoking Section 17 (1) of the Act, 1894 petitioners are deprived of their property and they had no option, but to accept whatever the meagre amount was offered by the respondents under the agreement to somehow survive.

395. Learned counsel for the petitioners further contended that in case the petitioners do not accept the amount under the agreement they will not be paid anything for years together since the declaration of the award takes several years. Accepting the amount under above circumstances cannot be said to be acceptance of amount voluntarily nor such acceptance can be treated to be waiver of rights of the petitioners to challenge the acquisition. The submission of Shri S.P. Gupta, learned Senior Advocate appearing for the intervenors that remedy was available to the land owners/petitioners to go under Section 18 of the Act, 1894 after accepting the compensation under the agreement also cannot be accepted. The remedy under Section 18 of the Act, 1894for enhancement of the compensation is not available to those persons who have accepted the compensation under the 1997 Rules.

396. Learned counsel for the petitioners have also placed reliance on the judgment of the Apex Court in Radhey Shyam (Dead) through LRs & Ors. Vs. State of U.P. & Ors, (2011) 5 SCC 553.

397. In the aforesaid case, the Apex Court had occasion to consider similar issues. In the said case notifications of land acquisition issued under Section 4 read with Sections 17 (1) and 17 (4) as well as declaration under Section 6 was challenged of Village Makaura District Gautam Budh Nagar. Writ petition was filed by the land owners which was dismissed by the High Court. Against which the appeal was filed. One of the submission raised before the Apex Court was that the land owners having accepted the compensation under the 1997 rules, they cannot be allowed to challenge the acquisition. Following observation was made by the Apex Court in para 20 which is quoted below:-

'20. The resultant effect of these acquisitions is that the land owners, who were doing agricultural operations and other ancillary activities in rural areas, have been deprived of the only source of their livelihood. Majority of them do not have any idea about their constitutional and legal rights, which can be enforced by availing the constitutional remedies under Articles 32 and 226 of the Constitution. They reconcile with deprivation of land by accepting the amount of compensation offered by the Government and by thinking that it is their fate and destiny determined by God. Even those who get semblance of education are neither conversant with the functioning of the State apparatus nor they can access the records prepared by the concerned authorities as a prelude to the acquisition of land by invoking Section 4 with or without the aid of Sections 17 (1) and/or 17(4).'

398. Again the Apex Court had occasion to consider another case of land acquisition in which the acquisition of land of Village Sahberi of District Gautam Budh Nagar was involved is Greater Noida Industrial Development Authority Vs. Devendra Kumar & Ors. 2011 (6) ADJ 480.

399. In the said case the issue of accepting compensation by the land owners under the 1997 Rules was also raised. The submission made before the Apex Court in the said case was that the relief should not be granted to those who have accepted compensation. The Apex Court observed that the situation in which the people belonging to this class are placed does not leave any choice to them to make compromises and try to salvage whatever they can. Following observation was made in paragraph 39 which is quoted below:-

'39. We do not find any substance in the argument of the learned counsel for the petitioners that quashing of the acquisition proceedings should have been confined to those who had not accepted the amount of compensation. Once the High Court came to the conclusion that the acquisition of land was vitiated due to want of good faith and the provisions of the 1894 Act had been invoked for a private purpose, there could not have been any justification for partially sustaining the acquisition on the ground that some of the land owners or their transferees had accepted compensation by entering into an agreement with the Authority. The situation in which the people belonging to this class are placed in the matter of acquisition of their land leave a little choice to them but to make compromises and try to salvage whatever they can. Therefore, even though some persons may not have resisted the acquisition and may have accepted the compensation by entering into agreements, it is not possible to find any fault in the approach adopted by the High Court.'

400. Learned counsel for the intervenors has relied on the judgment of the Apex Court in Commissioner of Income Tax (supra) in which case the Apex Court observed that since the facts asserted in the affidavit of the assessee were not disputed by the revenue, it appears that the revenue had waived its right to dispute the facts. Following was observed by the Apex Court in paragraph 10 which is quoted below:-

'10. The assessments relate to a period about a quarter of century back and by its conduct, the revenue appears to have waived its right to dispute the facts asserted in the affidavit on one hand by not challenging its admissibility and on the other, by not disputing the context thereof.'

401. Another judgment relied on by the learned counsel for the intervenors is Rajendra Singh's case (supra) in which case the Apex Court has laid down that a mandatory provision conceived in the interest by a party can be waived by that party, whereas a mandatory provision conceived in the interest of the public cannot be waived by him. Following observation were made in paragraph 6 which is quoted below:-

'6. While examining complaints of violation of statutory rules and conditions, it must be remembered that violation of each and every provision does not furnish a ground or the Court to interfere. The provision may be a directory one or a mandatory one. In the case of directory provisions, substantial compliance would be enough. Unless it is established that violation of a directory provision has resulted in loss and/or prejudice to the party, no interference is warranted. Even in the case of violation of a mandatory provision, interference does not fellow as a matter of course. A mandatory provision conceived in the interest of a party can be waived by that party, whereas a mandatory provision conceived in the interest of public cannot be waived by him. In other wards, wherever a complaint of violation of a mandatory provision is made, the Court should enquire- in whose interest is the provision conceived. If it is not conceived in the interest of public, question of waiver and/or acquiescence may arise - subject, of course, to the pleadings of the parties. This aspect has been dealt with elaborately by this Court in State Bank of Patiala v. S.K. Sharma and in Krishanlal v. State of Jammu and Kashmir on the basis of a large number of decision on the subject. Though the said decisions were rendered with reference to the statutory Rules and statutory provisions (besides the principles of natural justice) governing the disciplinary enquiries involving government servants and employees of statutory corporation, the principles adumbrated therein are of general application. It is necessary to keep these considerations in mind while deciding whether any interference is called for by the Court whether under Article 226 or in a suit. The function of the Court is not a mechanical one. It is always a considered course of action.'

402. There cannot be any dispute to the proposition as laid down above, but in the present cases, petitioners have not waived any mandatory statutory provision as observed above. The above case does not help the petitioners in any manner.

403. The next judgment relied on by the learned counsel for the intervenors is the judgment of the Apex Court in M. C. Mehta Vs. Union of India & Ors, (1999) 6 SCC 237.

404. In the aforesaid said case, the Court was considering whether the question of waiver of notice came up for consideration in context of principles of natural justice. Following was observed in paragraph 22 which is quoted below:-

'22.We may also state that there is yet another line of cases as in State Bank of Patiala v. S.K. Sharma, Rajendra Singh v. State of M.P. that even in relation to statutory provisions requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest. In the former case, it can be waived while in the case of latter, it cannot be waived.'

405. Insofar as the submission of the learned counsel for the petitioners that some of the land owners/petitioners who were allotted 6 % Abadi Plots/flats have sold their plots to third party, we are of the view that the mere fact that they have sold their Abadi plots/flats allotted to them does not mean that they have waived all their rights to challenge the acquisition. As we have noticed above, that most of the petitioners have taken the ground in the writ petition that they were under bonafide belief that acquisition has been made for Planned Industrial Development and when it came to their knowledge that the purpose has been diverted and the land has been transferred to private parties they invoked the jurisdiction of this Court.

406. In these circumstances, we are of the view that it cannot be presumed that the petitioners/land owners have waived their rights and cannot be non-suited on the ground that they have waived their rights to challenge the acquisition.

13. Acquiescence:

407. Shri L. Nageshwar Rao, learned Senior Counsel appearing for the State as well as Shri S.P. Gupta, learned Senior Counsel appearing for the intervenors have also laid much stress on the acquiescence. It has been contended that the acceptance of compensation under the 1997 Rules, clearly proves that the petitioners/land owners have acquiesced to the acquisition of their land and they cannot be now permitted to challenge the same. Development of land, allotment to third parties without any objection by the petitioners/land owners has also been cited as grounds to plead acquiescence. Acceptance of allotment of Abadi sites to some of the land owners have also been referred to as acquiescence on the part of the land owners.

408. Shri L. Nageshwar Rao, learned Senior Counsel appearing for the State as well as Shri S.P. Gupta, learned Senior Counsel appearing for the intervenors have relied on the judgment of the Apex Court in The Naya Garh Co-operative Central Bank Ltd. & Anr. Vs. Narayan Rath & Anr. (1977) 3 SCC 576, Krothapalli Satya Narayana Vs. Koganti Ramaiah & Ors, (1984) 2 SCC 439, Ramdev Food Products (P) Ltd. Vs. Arvind Bhai Ram Bhai Patel & Ors, (2006) 8 SCC 726 and the judgment of the Apex Court in Urmila Roy & Ors Vs. Bengal Peerless Housing Development Company Limited & Ors,(2009) 5 SCC 242.

409. The judgment of the Apex Court in Naya Garh Co-operative Central Bank Ltd. (supra) was a case where the Registrar Co-operative Societies disapproved the appointment of the respondent no.1 as Secretary of the Bank after 13 years. In the said circumstances, the Apex Court observed that the Registrar shall be treated to have acquiesced to the appointment. Following was laid down in paragraph 4 which is quoted below:-

'4. The writ petition filed by respondent No. 1 could succeed, in our opinion, on the narrow ground that he had been permitted to function for over thirteen years as secretary of the Bank and that his appointment as secretary was decided upon in a meeting over which the Registrar of Co-operative Societies had himself presided, The writ petition in substance is directed not against any order passed by the Co-operative Bank but against the order passed by the Registrar disapproving the appointment of respondent No. 1 as secretary of the Bank. It was not open to the Registrar, in our Opinion, to set aside respondent No.l's appointment as a secretary after having acquiesced in it and after having, for all practical purposes, accepted the appointment as valid. It is undesirable that appointments should be invalidated in this manner after a lapse of several years.'

410. In the case of Krothapalli Satyanarayana (supra) in a suit which was filed for declaration of a right to passage after 9 years, it was observed that the plaintiff was held to have acquiesced to the construction of wall. The said case was on its own fact and has no application in the present case. Following observation was made in paragraph 8 which is quoted below:-

'8. In this case both the appellate Court and High Court have concurrently held that the Plaintiff was guilty of acquiescence in that even though the wall was constructed to his knowledge in 1956, he approached the court in 1965 and even in that year he did not seek the prayer for removal of wall which prayer was for the first time introduced in 1969. In this background, we are not inclined to entertain the submission on behalf of the plaintiff-appellant that defendants 2 and 3 should be directed to remove the wall W W-1 and clear the passage of encroachment.'

411. In Ramdev Food Products Pvt. Ltd.(supra) defining the acquiescence following was laid down in paragraphs 103 and 104 which are quoted below:-

'103.Acquiescence is a facet of delay. The principle of acquiescence would apply where: (i) sitting by or allow another to invade the rights and spending money on it; (ii) it is a course of conduct inconsistent with the claim for exclusive rights for trade mark, trade name, etc.

104.In Power Control Appliances v. Sumeet Machines (P) Ltd. this Court stated:(SCCp.457,para 26)

'26.Acquiescence is sitting by, when another is invading the rights and spending money on it. It is a course of conduct inconsistent with the claim for exclusive rights in a trade mark, trade name etc. It implies positive acts; not merely silence or inaction such as is involved in laches.'

412. The last case relied on by the learned counsel for the respondents is Urmila Roy (supra) in which land acquisition proceedings after issuance of notification under Section 4, the attorney of land owners wrote a letter that owners are willing to negotiate the price of the land. In the said circumstances, the Court observed that the land owners had acquiesced to the acquisition. Following was laid down in paragraph 60 which is quoted below:-

'60. It is significant that this letter written by the Attorney Urmila Roy, on behalf of all the land owners spells out that the owners had in fact been willing to negotiate the price for the land at the time when the acquisition were still incomplete as only the Notification under Section 4 of the Act had, at that stage, been issued (4-12-2000). It is also significant that the declaration under Section 6 had been issued on 29-11-2001 and the award rendered on 27-12-2003. It is, therefore, evident that the land owners had, in fact, acquiesced to the acquisition and cannot now turn around to say that the acquisition was bad in law.'

413. The said case was on its own fact and does not help the respondents in the present case. Insofar as, the submission of the respondents relating to acceptance of compensation under the 1997 Rules are concerned, we have already dealt the said submission while discussing the plea of waiver. We have already arrived at a conclusion that merely because the land owners have accepted the compensation under the 1997 Rules, they cannot be said to have waived their right for the same reasons as given above. We are of the view that mere acceptance of compensation under the 1997 Rules, does not amount to acquiescence by the land owners."

9. There is another reason for not agreeing with the logic given in para 20 of the judgment. The Division Bench held "once incumbents have signed the agreement and accepted compensation in terms of agreement, then such incumbents are not entitled for higher compensation."

The "incumbents" in the case are pushtaini and gairpushtaini farmers who received compensation under the Rules of 1997. If gairpushtaini cannot receive higher compensation, then by the same logic, pushtaini farmers are also not entitled to receive higher compensation as they had also received lesser compensation under the agreement determined under the Rules of 1997. In our view, if pushtaini farmers can be given higher compensation, there is no reason why gairpushtaini farmers cannot be given the same relief.

10. In so far as the second ground with regard to classification of pushtaini and gairpushtaini is concerned, the respondents relied on paragraph nos. 27 to 32 of the judgment of Smt. Madhuri Srivastava (Supra), which is extracted hereunder:

"27.The larger issue is that once compensation in question has been awarded under the Land Acquisition Act, are the State instrumentalities stopped in law in discharging their social obligation by making scheme for rehabilitation of the oustees, whose land is being acquired.

28. The answer to this question would be 'No' for the simple reason that it is always open to the Authorities, in addition to the compensation that is to be awarded under the Land Acquisition Act, to award something in addition to a different class of tenure holders for specific objects that are sought to be achieved.

29. In this backdrop, we are perusing the facts of the case and what we find, in the present case, is that for the purposes of awarding additional compensation, other than the compensation that has already been awarded, that is of providing additional compensation to Pushtaini Kastakars and also providing ex-gratia to the Pushtaini Kastakars.

30. Pushtaini Kastakars and Non Pushtaini Kastakars have been classified based on the situation qua the incumbents who were original residents of the area, which formed part of the NOIDA Authority, and on account of acquisition of their land as a result thereof, of their existing place of living agriculture land was being taken away and they were likely to be rendered landless and would have to face irreparable hardship, since their land itself was being acquired and the second class of incumbents were such, who have shifted to Noida after the Authority in question has been constituted.

31. The NOIDA Authorities, in their wisdom, have proceeded to classify two category of tenure holders based on original resident, whose land has been acquired and from the class of persons who have shifted to Noida after the Authority in question has been constituted. Additional compensation and ex-gratia amount has been given as rehabilitation bonus to those farmers whose land has been recorded in the revenue records as on 17.04.1976 i.e. the date of constitution of NOIDA Authority and it was not at all part of the compensation but it was an additional compensatory amount so that they can rehabilitate themselves.

32. In the present case, the classification that has been so made cannot be said to be arbitrary or unreasonable, inasmuch as, on one hand there are such tenure holders, who have been the original residents, whose land has been got recorded in the revenue records before the constitution of NOIDA Authority and who has to be rehabilitated and on the other hand, there is another class of tenure holders, who are not at all the original residents but have subsequently migrated after the constitution of NOIDA Authority, in view of this, once such is the factual situation that is so emerging, then the classification in question that has been so carried out, has to be accepted as reasonable classification having direct nexus with the object sought to be achieved that is proper rehabilitation of original residents i.e. sons of soil of the area, who are likely to become landless due to acquisition of their land, in view of this, the challenge that has been so made on the basis of discrimination, cannot be accepted by us and has to be overruled."

(Emphasis Supplied)

11. From a reading of the said paragraphs, it is apparent that the division bench in the said judgment took the view that the additional amount of compensation given to the Pushtaini farmers was a reasonable classification having a direct nexus with the object sought to be achieved, that is, proper rehabilitation of pushtaini farmers.

12. Challenging the said findings, the petitioners relied upon the judgment of Supreme Court in the case of Nagpur Improvement Trust and another v. Vithal Rao and others, (1973) 1Supreme Court Cases 500. Paragraphs 26 to 30 of the said judgment are relevant, which read as under:

"26. It is now well-settled that the State can make a reasonable classification for the purpose of the legislation. It is equally well-settled that the classification in order to be reasonable must satisfy two test; (I) the classification must be founded on intelligible differentia and (ii) the differentia must have a rational relation with the objection sought to be achieved by the legislation in question. In this connection it must be borne in mind that the objection itself should be lawful. The object itself cannot be discriminatory, for otherwise, for instance, if the object is to discriminate against one section of the minority the discrimination cannot be justified on the ground that there is a reasonable classification because it has rational relation to the object sought to be achieved.

27. What can be reasonable classification for the purpose of determining compensation if the object of the legislation is to compulsorily acquire land for public purposes?

28. It would not be disputed that different principles of compensation cannot be formulated for lands acquired on the basis that the owner is old or young, healthy or ill, tall or short, or whether the owner has inherited the property or built it with his own efforts, or whether the owner is a politician or an advocate. Why is this sort of classification not sustainable? Because the object being to compulsorily acquire for a public purpose, the object is equally achieved whether the land belongs to one type of owner or another type.

(Emphasis supplied)

29.Can classification be made on the basis of the public purpose for the purpose of compensation for which land is acquired? In other words can the Legislature lay down different principles of compensation for lands acquired say for a hospital or a school or a Government building? Can the Legislature say that for a hospital land will be acquired at 50% of the market value, for a school at 60% of the value and for a Government building at 70% of the market value? All three objects are public purposes and as far as the owner is concerned it does not matter to him whether it is one public purpose or the other. Article 14 confers an individual right and in order to justify a classification there should be something which justifies a different treatment to this individual right. It seems to us that ordinarily a classification based on the public purpose is not permissible under Article 14 for the purpose of determining compensation. The position is different when the owner of the land himself is the recipient of benefits from an improvement scheme, and the benefit to him is taken into consideration in fixing compensation. Can classification be made on the basis of the authority acquiring the land? In other words can different principles of compensation be laid if the land is acquired for or by an Improvement Trust or Municipal Corporation or the Government? It seems to us that the answer is in the negative because as far as the owner is concerned it does not matter to him whether the land is acquired by one authority or the other.

30. It is equally immaterial whether it is one Acquisition Act or another Acquisition Act under which the land is acquired; if the existence of two Acts enables the State to give one owner different treatment from another, equally situated the owner who is discriminated against can claim the protection of Art. 14."

13. In our view, para 28 of the judgement in Nagpur Improvement Trust (Supra) clinches the issue. The Supreme Court has categorically held that this sort of classification is not sustainable because the object is to compulsorily acquire the land for a public purpose, which is achieved whether the land belongs to one type of owner or another type. The classification created the Authority between one type of owner vis-a-vis another type of owner is against the teeth of the judgement of the Supreme Court in Nagpur Improvement Trust (Supra).

In our opinion, the decision of the co-ordinate bench in Smt. Madhuri Srivastava (Supra) especially para 32 is in direct conflict with the decision of the Supreme Court in Nagpur Improvement Trust (Supra).

14. Further, the reasoning given by the co-ordinate bench in the case of Smt. Madhuri Srivastava (Supra) that the object sought to be achieved is proper rehabilitation of original residents i.e. sons of soil of the area, who are likely to become landless due to acquisition of their land is also equally applicable to Gairpushtaini farmers. They also require proper rehabilitation. They are equally likely to become landless due to acquisition of their land. Thus, they are also entitled for equal treatment as given to Pustaini farmers.

15. A bare reading of the provisions of the Land Acquisition Act further makes it abundantly clear that the Land Acquisition Act does not distinguish between one class of land owner from another class of land owner. The Land Acquisition Act provides for payment of compensation to be paid uniformally to all class of land owners on the basis of the market value of their land. The only distinction is the rate of the land which largely depends on the location of the land or any other such criteria, affecting the market value of the land, which could cause a difference in grant of compensation. The Authority is admittedly paying compensation under the provisions of the Land Acquisition Act. It is bound by the said objects of the Land Acquisition Act and is therefore, responsible to treat all the persons affected by the acquisition equally. The classification made between Pushtaini and Gairpushtaini is beyond the object and purpose of the Land Acquisition Act. It is violative of Article 14 of the Constitution of India, which requires the State to treat all persons similarly situated equally.

16. In view of the above, we are of the opinion that the distinction of Pushtaini and Gairpushtaini farmers is arbitrary and is hit by Article 14 of the Constitution. It is also contrary to the objects of the Land Acquisition Act. We are thus, unable to subscribe to the views given by the coordinate bench in Smt. Madhuri Srivastava's case (supra).

17. In view of the above, let the matter be placed before Hon'ble the Chief Justice for being referred to a Larger Bench.

 
Dated:7.7.2017
 
AU
 
 
 
(Vivek Chaudhary, J.)      (Tarun Agarwala, J.)