Allahabad High Court
Musavir Malik & Anr. Thru. Their ... vs State Of U.P. Thru. Prin.Secy., ... on 12 May, 2017
Bench: Amreshwar Pratap Sahi, Sanjay Harkauli
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 1
[A.F.R.]
Case :- LAND ACQUISITION No. - 10031 of 2017
Petitioner :- Musavir Malik & Anr. Thru. Their Attorney Mohd. Azad
Respondent :- State Of U.P. Thru. Prin.Secy., Housing & 2 Others
Counsel for Petitioner :- Mohammad Aslam Khan
Counsel for Respondent :- C.S.C.,Sampurnanand Shukla
Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Sanjay Harkauli,J.
This writ petition has been filed praying for quashing the entire proceedings of acquisition of plot No.1273-Dha of village Kalli Pashchim, Tahsil Sarojninagar, district Lucknow and to release the land in favour of the petitioner after realization of betterment fee or making award in the light of various Government orders and the resolution passed by the Avas Evam Vikas Parishad.
In the writ petition certain pleadings have been made referring to the provisions of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. It has been urged that in view of the said provisions the fact that in spite of the land having been acquired, no possession has been taken for the past 18 years nor any award has been made and consequently, the petitioners are entitled to return of the land and alternatively, at least to the extent of the constructions that have been raised over the land in dispute may be released on payment of betterment charges.
Sri Mohd. Arif Khan, learned Senior Counsel for the petitioner has submitted that apart from this the Court may also take notice of the Division Bench judgment in the case of Prahlad Singh and 6 others. Vs. State of U.P. and 2 others (Writ C-No.15804 of 2016) read with D.O. letter dated 26.10.2015 of the Central Government that has been adopted by the Avas Evam Vikas Parishad for releasing the said land as prayed for by the petitioners.
We have considered the submissions raised and what we find is that firstly the proceedings of acquisition are not under the Land Acquisition Act, 1894 but are under the provisions of U.P. Avas Evam Vikas Parishad Adhiniyam, 1965. The notification under Section 28 that is equivalent to Section 4 of 1894 Act was issued on 11.12.1999 and that under Section 32 which is equivalent to Section 6 was issued on 27.2.2004. It is thus clear that the acquisition has taken place more than 17 years, hence. The allegation of the petitioner is that no compensation has been deposited or paid nor possession taken. It may be clarified that so far as this issue is concerned, the applicability of the Land Acquisition Act, 1894 to a limited extent was upheld by the Apex Court in the case of U.P.Avas Evam Vikas Parishad. Vs. Jainul Aslam and another:(1998) 2 SCC 467 but at the same time the Apex Court to the conclusion that in view of the provisions of the 1965 Act, the provisions of Section 11-A of the 1894 Act are not applicable that provides for lapse. In view of this, the plea of the petitioners for quashing the acquisition proceedings or treating them to have lapsed does not arise as the acquisition under the 1965 Act is based on a different footing as against the provisions of the 1894 Act that has been repealed by the 2013 Act.
Secondly, the issue of applicability of the 2013 Act or its provisions has been dealt with by a Division Bench of this Court in the case of Atul Sharma and another. Vs. State of U.P. and others (Writ Petition No.159 (L/A) of 2014 decided on 07.02.2016. It has been held that the 2013 Act would not govern the issue of lapse in an acquisition under the 1965 Act.
Thirdly, as pointed out by the learned standing counsel Sri Abhinav Trivedi, the aforesaid view finds support from the latest decision of Hon'ble Supreme Court in the case of Land Acquisition Officer. Vs.Anusuiya Bai (2017) 3 SCC 313. We see no reason to differ from the aforesaid view and therefore the issue of quashing the proceedings or treating to have lapsed does not arise.
However, while considering the issue of determination of compensation the judgment in the case of Atul Sharma (supra) has taken care of the manner of determination which also has been now indicated by the Parishad itself by taking note of the D.O. letter dated 26.10.2015 and it has also been indicated in the judgment in the case of Prahlad Singh (supra) as relied upon by the learned counsel for the petitioners.
Sri Sampurnanand Shukla who appeared for the Avas Evam Vikas Parishad submits that the Government of Uttar Pradesh has issued the Government order dated 19.03.2015 that has been adopted by the Avas Evam Vikas Parishad and which is evident from the resolution of the Board that has been filed as Annexure-11 to the writ petition for the purpose of determining compensation as per the 2013 Act.
In view of the aforesaid, the determination has to be made in accordance with law.
Sri Khan however vehemently urged that since the constructions are over the part of land therefore the Parishad should be directed to release the said land to that extent. Once the acquisition is complete a direction to that effect cannot be given, but it is open to the Avas Evam Vikas Parishad to take an appropriate decision in the matter independently in accordance with the scheme that it proposes to develop on the acquired land.
The writ petition therefore cannot succeed but is disposed of with the observations that in the event the Avas Evam vikas Parishad forms any opinion or takes a decision for allotting the land after charging betterment fee it shall be entirely for the Parishad to do so in accordance with law.
The writ petition is disposed of with the said observations.
Order Date :- 12.5.2017
RajneeshDrPs)
[Sanjay Harkauli,J.] [Amreshwar Pratap Sahi,J.]
