Amit Jain And Others vs State Of U.P. And Others
2017 Latest Caselaw 6482 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 20.09.2017
 
Delivered on 08.11.2017 
 
Court No. - 37
 
A.F.R.
 
Case :- WRIT - C No. - 22425 of 2011
 

 
Petitioner :- Amit Jain And Others
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- J.H. Khan,Gulrez Khan
 
Counsel for Respondent :- C.S.C.,D.K. Singh,Nisheeth Yadav,Ramendra Pratap Singh
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Rajiv Lochan Mehrotra,J.

The present writ petition arises out of land acquisition proceedings under the then provisions of the Land Acquisition Act, 1894 for the New Okhla Industrial Development Authority. The acquisition appears to have been undertaken in different phases in respect of the village in question namely village Sultanpur Pargana and Tehsil Dadri district Gautam Budh Nagar. The dispute in the present writ petition is confined to certain area alleged to have been purchased by the petitioners out of plot no.625 of the said village.

The acquisition without effecting plot no.625 was initially undertaken by the issuance of notifications under Sections 4 and 6 respectively on 02.05.2003 and 29.05.2003 for an area of about 13.5 hectares. The next phase began with the notification under Section 4 of the Act dated 19.09.2008 where also plot no.625 was not included. The said notification under Section 4 of the Act however, did not result in a final notification but the respondent/NOIDA authority was pursuing the State Government for acquisition. The petitioners claimed that on having come to know of the said proposed acquisition proceedings, since they had already purchased the land prior to plot no.625 being included in the acquisition proceedings, a preemptive application was filed before the Special Land Acquisition Officer on 12.02.2009 indicating that in the survey that had been carried out, the construction of the petitioners and their tenements, had not been been indicated and therefore an appropriate survey be carried out and the land purchased by them through the respective sale deeds be excluded. The petitioners also claimed to have got their names mutated for which they have placed reliance on the relevant revenue extracts that have been filed as Annexure-32 to the impleadment and amendment applications dated 20.11.2011.

The petitioners contend that upon the application being moved on 12.02.2009 the Additional District Magistrate (Land Acquisition) submitted a report on 18.02.2009 about the objections raised by the petitioners and also indicated that the matter should be re-examined keeping in view the claim of the tenure holders.

It is urged that in spite of this report, for the first time, plot no.625 came to be included in its entirety in a fresh notification under Section 4 of the 1894 Act published on 17.03.2009, the area being 8280 sq. mtrs. This was followed by a notification under Section 6 of the Act dated 31.07.2009 read with Section 17 of the Act. The urgency clause had been invoked and the hearing proceedings under Section 5-A had been dispensed with.

According to the respondents notices were issued on 15.09.2009 under Section 9 of the Land Acquisition Act. The counter affidavit of the respondent no.3 Development Authority dated 31.01.2012 in paragraph no.26 has asserted that there were no constructions of the petitioners either in 2007 or any time thereafter nor had they placed any documents to evidence the same. The notices under Section 9 of the Act had been sent to the land owners including the present petitioners and a copy of the said notice has been filed as Annexure-CA-6 to the said counter affidavit, but according to the authority none of the petitioners were found at the spot and a report was submitted on the notice that the addressees were not residents of the area and are residing either in NOIDA, Delhi or Ghaziabad.

The petitioners have then alleged that they made a second request to the Additional District Magistrate to exclude the land of the petitioners from the acquisition proceedings. They have also alleged that the said land has been acquired and is being handed over to private companies for construction of multi-storeyed building and farm houses. It is thus clear that the petitioners were fully aware of the proceedings and the very caption of their letter which has been filed as Annexure-16 to the writ petition indicates that the request was being made prior to the issuance of the possession letter.

It is to be noted that the case of the respondents is that possession was taken immediately thereafter on 25.01.2010 about which a dispute has been raised by the petitioners to be dealt with hereinafter. Nonetheless, the fact remains that the acquisition proceedings were in the knowledge of the petitioners according to the case set up by them.

The petitioners in spite of having knowledge of the same did not choose to challenge the notifications under Sections 4 and 6 of the Act.

The vendors of the petitioners and the original tenure holders namely, Kamaruddin, Yusuf and others filed Writ Petition No.14932 of 2010 challenging the acquisition proceedings. This fact is necessary to be stated in the aforesaid chronological order inasmuch as learned counsel for the petitioners has advanced his submissions contending that any decision rendered in the writ petition filed by Kamaruddin, Yusuf and others would not be binding on the present petitioners as they have independent rights of their own.

Writ Petition No.14932 of 2010 filed by Kamaruddin and others challenged the notifications of acquisition under Sections 4 and 6 of the Act referred to hereinabove, but at the time of arguments they limited their prayer to the extent that their application filed seeking exemption of the area of the land in their possession of plot no.625 and other plots be considered and only that land be excluded. The writ petition was disposed of on 22.03.2010 by the following judgment.

"Heard learned counsel for the petitioners as well as learned Standing Counsel appearing for the State-respondents and Sri Ramendra Pratap Singh for the respondent no. 3-NOIDA and have perused the record. With consent of learned counsel for the parties, this writ petition is being disposed of finally at this stage without calling for a counter affidavit.

The case of the petitioners is that notifications issued under Sections 4 and 6 of the Land Acquisition Act on 17.3.2009 and 31.7.2009, certain land was acquired which included the khasra no. 625 belonging to the petitioners. Although in the writ petition, the petitioners have challenged the said notifications but Sri Nalin Kumar Sharma, learned counsel for the petitioners at the outset states that the petitioners are limiting their prayer and made a request that the petitioners may be permitted to approach the State Government for exemption of their plot from acquisition.

Such prayer of the petitioners is not objected to by the learned counsel for the respondents.

As such, this petition is finally disposed of with the direction that the petitioner shall have liberty to approach the State Government for exempting the plot, being khasra no. 625, belonging to the petitioners from acquisition. In case if such application is filed, the same shall considered and dealt with, in accordance with law and appropriate orders shall be passed by the competent authority.

With the aforesaid observation/direction, this writ petition is disposed of finally. There shall be no orders as to costs."

Consequently the challenge raised to Sections 4 and 6 by the original tenure holders came to an end and the State Government was directed to consider their request for exemption.

The State Government passed an order on 25.01.2011 copy whereof is Annexure-21 to the writ petition whereby the proposal made by the NOIDA was considered and it was decided that in view of the fact that possession has already been taken of the entire land, the provisions of Section 48(1) of the 1894 Act can not be invoked for exempting the land. The State Government upon noticing the existence of a couple of graves over the land in question passed an order directing the Authority to ensure a lease back of 500 sq.mtrs. of land of plot no.625 only.

Kamaruddin, Yusuf and others filed Writ Petition No.10457 of 2011 virtually seeking the same relief after the disposal of the their representation on 25.01.2011 but upon being pointed that the earlier writ petition had already been disposed of, this second writ petition was got dismissed as not pressed on 22.02.2011. The order passed on the said writ petition is Annexure-22 to the writ petition and is extracted hereinunder :

"Learned counsel for the petitioner states that this petition may be dismissed as not pressed.

In view of the aforesaid, the writ petition is dismissed as not pressed."

It appears that after the dismissal of the said writ petition, the Authority undertook demolition proceedings on 10.03.2011.

A third writ petition was filed by Kamaruddin, Yusuf and others the original tenure holders, who are the vendors of the petitioners, being Writ Petition No.17391 of 2011 where the prayer was modified and the relief sought was that the application filed by the petitioners therein in so far as it relates to their constructions, be disposed of in terms of the New Okhla Industrial Development Rural Abadi Site (Management and Regularization for Residential Purpose) Regulation 2006. This writ petition was disposed of on 13.04.2011 after hearing learned counsel for the Development Authority. The order passed is extracted hereinunder :

"Heard learned counsel for the petitioners and Shri Ramendra Pratap Singh for respondent nos.2 and 4 and the learned Standing Counsel.

The only prayer pressed by the learned counsel for the petitioners is that a direction be issued to the respondents to decide the claim of the petitioners as submitted by representation dated 09/3/2011, in accordance with the provisions of New Okhla Industrial Development Rural Abadi Site (Management and Regularization for Residential Purpose) Regulation 2006 as amended lastly on 08/2/2011.

Shri Ramendra Pratap Singh appearing for respondent nos.2 and 4, submits that in view of the fact that petitioners' representation dated 09/3/2011,Annexure-27 to the writ petition is pending consideration, the same shall be considered and disposed of by the competent authority expeditiously.

In view of the above stand taken by the learned counsel for the parties, we dispose of this petition with a direction to the competent authority to dispose of the petitioners' representation dated 09/3/2011, Annexure-27 to the writ petition, expeditiously, preferably within a period of two months from the date of filing a certified copy of this order before the authority concerned. We, however, make it clear that we are not expressing any opinion on the merits of the claim of the petitioner, and it is for the competent authority to consider all aspects of the matter. "

Upon the disposal of the said writ petition the respondents/NOIDA Authority placed the matter before a Committee which made recommendations for excluding only 500 sq.mtrs. as proposed earlier under the order dated 25.01.2011.

The respondent development authority executed leases to the respondent nos.5, 6 and 7 on 21.06.2011.

The award in respect of the acquisition proceedings including that of plot no.625 was delivered on 07.09.2011.

One Siraj Ahmad again filed Writ Petition No.67311 of 2011 who got his petition dismissed as not pressed on 30.11.2011 with liberty to file a fresh writ petition.

It is during this intervening period that the present writ petition was got reported on 13.04.2011 and affidavits were directed to be exchanged vide order dated 20.04.2011. On account of the lease deed having been executed to the respondent nos.5, 6 and 7 an impleadment application along with an amendment application dated 20.11.2011 was filed by the petitioners that was allowed on 05.12.2011. On a separate stay application a Division Bench of this Court on the same day passed an interim order that no permanent construction shall be made by the respondents including the respondent nos.5 to 7 on the land in dispute.

The NODIA Authority filed a counter affidavit on 31.01.2012 and to the amendment application on 02.10.2016. The petitioners have filed a rejoinder affidavit to the same and on 14.07.2014 the State Government filed its counter affidavit to which a rejoinder affidavit was filed on 17.07.2014.

Along with the said rejoinder affidavit the petitioners came up with the plea that the allegations of the State Government that possession had been taken on 25.01.2010 was a totally false declaration and the possession memo was prepared while sitting in the office without taking actual physical possession. The rejoinder affidavit dated 17.01.2011 brings on record two letters dated 25.01.2010 and 25.02.2010 to urge that the respondent NOIDA Authority and the Additional District Magistrate (Land Acquisition) through these communications clearly indicate that the possession of the entire land of plot no.625 had not been taken and that steps were required to be taken in future for the same. In the wake of these letters it has been urged by the petitioners that the possession memo dated 25.01.2010 on which reliance has been placed by the respondents has no legs to stand.

It is in these background that an order has been passed on 04.07.2014 is extracted hereinunder :

"Heard learned counsel for the parties.

We find from the record that several writ petitions have also been filed and orders have been passed relating to part of the land which is presently in question.

Sri R.P. Singh has raised an objection that since earlier writ petitions have an impact on the case of the present petitioners, therefore, the said facts have to be taken notice of.

Sri W.H.Khan, learned Senior Counsel submits with the aid of the writ petitions and orders passed, that those writ petitions were clearly in respect of such land of which the petitioners are not the owners and that those writ petitions may have been filed in respect of such portion of the land that is not subject matter of this petition.

He further submits that petitioners have obtained sale deeds before the notification under Sections 4 and 6 of the Land Acquisition Act, 1984 and in such circumstances the petitioners have separate cause of action and right to assail the acquisition proceedings including the issue of dispensing with the notice under Section 5A of the Act.

The State Government has not filed any counter affidavit to the said allegation.

Sri R.P. Singh for the respondent authority submits that he will provide a chart indicating the cause of action of earlier writ petitions and the controversy involved in order to sort out the problem. He prays that the matter may be adjourned for today.

Put up on Thursday i.e. 10.07.2014 along with the connected writ petitions.

The State Government may proceed to obtain instructions and file counter affidavit as we do not propose to grant any further time in view of the earlier orders passed by this Court.

Copy of the same be given to learned Standing Counsel free of charge to communicate the same forthwith today to all the concerned authority. "

After exchange of affidavits and in view of the dispute about possession at the instance of the petitioners the Court had called upon the production of records. In order to appreciate the submission of learned counsel for the petitioners for treating the proceedings to have lapsed in terms of Section 11-A of Act 1894 the Court passed an order dated 21.08.2017 that is extracted hereinunder :-

"Heard Sri W.H. Khan, learned Senior Counsel for the petitioners, learned Standing Counsel for the respondent nos. 1, 2 and 4, Sri Ramendra Pratap Singh, learned counsel for the respondent no. 3 and Sri C.B. Yadav, learned Senior Counsel for the respondent nos. 5 and 6. Respondent no. 7 is not represented by any counsel in spite of notice issued by this Court as well as through the Authorities as per the direction of this Court.

Sri W.H. Khan, learned Senior Counsel for the petitioners, while advancing his submissions on the issue of possession of the land having not been taken over as urged, contends that this fact that the possession has not been taken over by the State/Collector, is established from the documents of the respondents themselves. For this, he has pointed out to the documents filed along with the rejoinder affidavit dated 17th July, 2014 filed in response to the counter affidavit of the State. He has further invited the attention of the Court to the annexure appended along with the rejoinder affidavit to the counter affidavit filed on behalf of the respondent nos. 2 and 3. Annexure RA-1 dated 25th January, 2010 is a letter written by the Secretary, NOIDA to the Special Land Acquisition Officer, NOIDA intimating that an objection has been received on behalf of the tenure-holders for excluding 1000 sq. meter of land and therefore, a request was made to hand over possession of the entire land except 1000 sq. mt. about which the dispute has been raised.

It has further been pointed out that the respondents claimed to have taken over possession through the possession memo which is Annexure-25 to the writ petition. Sri W.H. Khan, therefore, submits that there is a contradiction in these two documents more particularly in view of the letter dated 2nd February, 2010 which is Annexure RA-2 where also in response to the letter dated 25th January, 2010, the Special Land Acquisition Officer has informed the Secretary, NOIDA Authority that the Amin of the office, Mr. Anil Kumar Sharma had been instructed to deliver the possession of NOIDA on 22nd September, 2009 but the same was not done. The said reply does not indicate that the possession had been delivered on 25th January, 2010, even though, the said letter has been written on 2nd February, 2010. It further requests the Secretary NOIDA to take steps for possession of the acquired land through officials and resolve the claim of exemption of 1000 sq. mtrs.

The issue of possession therefore, according to Sri Khan as alleged by the respondents, stands answered by their own documents which establishes that no possession of the disputed land was taken after issuance of the notice under Section 9 of the Land Acquisition Act, 1894 by the State or even by the NOIDA Authority.

On the other hand, learned Standing Counsel for the State has relied on paragraph no. 6 of the counter affidavit of the State dated 10th July, 2014 to contend that the possession had been taken and transferred in favour of the acquiring authority on 25th January, 2010. This statement has been made on the basis of record. There is no record filed along with the said counter affidavit.

Sri Khan, therefore, submits that the aforesaid statement of fact does not appear to be correct in view of the letters referred to hereinabove. To further substantiate his submissions, Sri Khan has invited the attention of this Court to the letter dated 11th October, 2010 sent by the A.D.M (Land Acquisition), Greater NOIDA to the State Government, a copy whereof has been filed as Annexure RA-5 along with the rejoinder affidavit to the counter affidavit of the Authority.

Sri Ramendra Pratap Singh has relied on the contents of the counter affidavit dated 31st January, 2012 to urge that the Authority had been given possession on 25th January, 2010 after the same was taken over by the State. This fact has been stated in paragraph no. 6 of the said affidavit along with the same possession memo which has been filed as an annexure along with the writ petition.

Sri C.B. Yadav, learned Senior Counsel for the respondent nos. 5 and 6 has urged that the petitioner cannot raise any dispute about the acquisition inasmuch as the vendor, namely Yusuf along with his father, Kamrudeen had filed a writ petition being Writ Petition No. 14932 of 2010 where the Court vide order dated 22.03.2010 did not interfere with the acquisition proceedings and only gave permission to the petitioners to move an application before the State Government for exemption in relation to Plot No. 625. The said petitioners approached the State Government and their request was partially accepted by exempting 500 sq. meters of land vide order dated 25th January, 2011. The said order was challenged by Kamrudeen and others Vs. State of U.P. and others in Writ Petition No. 10457 of 2011 but the same was got dismissed as withdrawn on 22.02.2011 and in the wake of the aforesaid development, the entire claim with regard to acquisition stood abandoned. Consequently, the petitioner being the purchaser of the same land cannot now raise any plea challenging either the acquisition proceedings or even the issue of possession that is sought to be raised through the present writ petition.

Sri W.H. Khan, learned Senior counsel for the petitioners has controverted the aforesaid submissions urging that so far as the petitioners are concerned, they had purchased the said land from Yusuf, which is prior to the issuance of the notification under Section 4 of the 1894 Act, and therefore any petition filed by the vendors of the petitioners would not bind them inasmuch as Yusuf had no right to stake any claim or represent the cause of the petitioners after he had sold the land in favour of the petitioners.

One of the issues that requires further consideration before the matter proceeds, is the issue of possession as the petitioners have raised a plea of the proceedings having lapsed in terms of Section 11A of the 1894 Act. For this, whether the possession had been taken over by the State after the issuance of the notice under Section 9 or not and as to whether there was any transfer of possession on 25th January, 2010 as claimed by the respondents, has to be ascertained on the strength of the records keeping in view the letters referred to hereinabove.

For this, we direct the learned Standing Counsel to produce the records relating to the acquisition proceedings of the aforesaid plot including any document in order to ascertain as to whether proceedings of taking possession of the land were undertaken by the Collector in terms of Section 17 of the 1894 Act read with the rules framed thereunder or not and as to whether the Collector had handed over possession to the NOIDA Authorties in the wake of the letters referred to hereinbove.

Let the records be produced on 31st August, 2017. The respondent-Authority may produce the relevant documents that may be necessary for the said purpose."

We have heard Sri W.H.Khan, learned Senior Counsel for the petitioners and Ms. Keertika singh, learned counsel for the respondent State Government, Sri Ramendra Pratap Singh, learned counsel for the respondent Authority and Sri C.B.Yadav, learned Senior Counsel for the respondent nos.5 and 6 and no one has put in appearance on behalf of the respondent no.7 inspite of notice. The respondent nos.5 and 6 however, filed counter affidavit on 25.10.2016 to which reply has been given by the petitioners through a rejoinder affidavit dated 30.11.2016.

The records have been produced including the possession memo on the strength whereof the respondents have alleged that they took possession on 25.01.2010.

The first issue raised by the learned counsel for the petitioners is that they have separate rights to be adjudicated as they had purchased the land from the original tenure holders prior to the notification under Section 4 of 1894 Act. It is also urged that their names had been mutated and therefore the proceedings of the award, that of taking possession and the litigation in respect thereof do not implead them as parties and hence the entire acquisition proceedings are vitiated.

The prayer to quash the notifications has been made primarily on the following grounds; namely that there is a considerable delay between the period of the notifications issued under Sections 4 and 6 of the 1894 Act and the initial proposal made for acquiring the land. It is urged that the scheme was launched in the year 2003 and it is for the first time that plot no.625 came to be included in the third phase of acquisition that commenced with the notifications under Section 4 of the Act on 17.03.2009. Thus, according to the learned counsel for the petitioners there was no urgency and there was a gap of more than four and a half months between Section 4 and 6 notifications which further explains the absence of any urgency so as to dispense with Section 5-A of the 1894 Act. Sri Khan therefore, contends that in the absence of any such urgency the proceedings for dispensing with the enquiry are vitiated by mala-fides, both in law as well as in fact. It is further submitted that the report dated 18.02.2009 has been completely overlooked and there is no rational subjective satisfaction recorded in order to dispense with the enquiry. The records as produced by the State Government no where establish the same hence, the acquisition is bad in law and deserved to be quashed. This is further supplemented by the argument that no notice under Section 9 was given to the petitioners or served and the stand taken in the counter affidavit of the authority that the petitioners were not found on the spot is totally misplaced and false. The next submission is that the displacement of the petitioners in spite of their construction existing and indicated in the reports of the authorities, the action of trying to dispossess the petitioners forcibly would not justify the dispensation of enquiry and finalization of the notification.

Learned counsel then submits that the proceedings should be treated to have been lapsed in terms of Section 11-A of the 1894 Act in the background aforesaid. It has been urged that the purpose of acquisition was clearly to benefit the builders and providing farm houses to the influential class which was not in the larger interest of the public and in this view of the matter also the hearing of objection could not have been dispensed with.

Learned counsel for the petitioners has then in order to substantiate his plea that no physical possession has been taken invited to the facts on record that have been produced to contend that the possession memo 25.01.2010 is a mere paper transaction and that actual physical possession had not been taken as is evident from the letters dated 25.01.2010 sent by the respondent no.3 Authority to the Land Acquisition Officer and the letter of the Land Acquisition Officer to the Authority dated 25.02.2010. It is urged that the issuance of the said letters have not been denied the same leave no room for doubt that actual physical possession has not been taken.

Sri Khan has referred to several judgments to substantiate his submissions namely Radhey Shyam (Dead) through LRS. and others Vs. State of U.P. and others, 2011 (5) SCC, 523, in the case of Savitri Devi Vs. state of U.P. and others, 2015(7) SCC, 21, in the case of Census Commissioner and others Vs. R.Krishnamurthy, 2015(2) SCC, 796, in the case of Beli Ram & Brothers and others Vs. Chaudri Mohammad Afzal and others, AIR 1948 PC, 168, in the case of Royal Orchid Hotels Limited and another Vs. G.Jayarama Reddy and others, 2011 (10) SCC, 608, (Para 36 to 40), in the case of Greater NOIDA Industrial Development Authority Vs. Devendra Kumar and others, 2011 (12) SCC, 375, in the case of Gajraj and others Vs. state of U.P. and others, 2011(11) ADJ, 1 (Paragraphs 35, 39, 45, 50 and 51) in the case of Nand Kishore Gupta and others Vs. State of U.P. and others, 2010(10) SCC, 282, in the case of Mahadeo (Dead) through LRS. and others Vs. State of U.P. and others, 2013(4) SCC, 524.

The learned Standing Counsel on behalf of State has opposed the petition and has urged that the possession memo is final. The petitioners did not choose to challenge the notifications and after the original tenure holders had failed in a challenge raised to the notifications and three writ petitions had been dismissed that the present writ petition came to be filed. It is also submitted that the acquisition proceedings in respect of village Sultanpur have also been upheld in the case of Gajraj Singh (Supra) and in the aforesaid circumstances the said judgment would be binding in the present case as well. The challenge raised is by fence sitters in the circumstances indicated above which should not be entertained so as to defeat the public purpose of acquisition that has already been given effect to. On the strength of the records it has been urged that the possession is evident by a memo and no evidence to the contrary having been shown the factum of possession having been taken on 25.01.2010 can not be disputed. This is also evident from the award dated 07.09.2011 where this fact is recorded and the date of possession is mentioned as 25.01.2010. The compensation has been awarded to all tenure holders and if there is any dispute with regard to compensation it is for the petitioners to approach the appropriate authority in accordance with law but so far as acquisition is concerned the same is complete and none of the grounds raised are available to the petitioners. There is no occasion to treat the proceedings to have lapsed as urged and the petitioners have been unable to identify or locate the area and the boundaries of their plots about which they are staking their claims which is limited only to the extent of their sale deeds and not of the entire plot no.625.

It is submitted that major part of the plot having been acquired and having been contested by the recorded tenure holders who have lost the battle, there is no occasion to consider the relief prayed for for a very small chunk of land of the petitioners. Thus challenged to the acquisition proceedings must fail and the writ petition deserves to be dismissed.

Sri Ramendra Pratap Singh, learned counsel for the respondent no.3 Development Authority has urged that the acquisition proceedings have become final and in view of the judgment in the case of New Okhla Industrial Development Authority Vs. Harkishan (Dead) through Legal Representatives and others, 2017 (3) SCC, 588 the provision of Section 11-A of the Act are not available to be invoked for treating the proceedings to have lapsed. He has further invited the attention of the Court paragraph no.66 of the judgment in the case of Greater NOIDA Industrial Development Authority Vs. Savitri Mohan (Dead) through Legal Representatives and others, 2016 (13) SCC, 210 to substantiate his submissions and he has supported the stand taken by the State Government. He has also urged that the records produced by the State and by the Authorities establish the actual possession having been taken and the petitioners have failed to establish and identify their land there is no occasion to entertain this writ petition. Inviting the attention of the Court to the judgment in the case of Gajraj Singh (Supra) he has urged that the ratio of the said decision would apply on the present case as well and consequently the acquisition proceedings can not be withheld. It is also submitted by Sri Singh that the proposal of the authority to exclude 500 sq.mtrs. of land was in respect of the area covered by two graves and appurtenant thereto which is not the area in respect of the sale deeds as relied upon by the petitioners. The sale deed nowhere indicate the existence of graves within the area purchased by the petitioners and therefore to that extent the petitioners do not even get shelter of the order passed passed by the State Government on 25.01.2011 and the recommendations by the Authority on 11.07.2011. He submits that there is no delay in the acquisition proceedings and the issue of dispensation of enquiry does not arise in the present case at all.

Sri C.B.Yadav, learned Senior Counsel for the respondent nos.5 and 6 have vehemently opposed the petition primarily raising the issue of the identity of the land and the locus of the petitioners to maintain the writ petition. He urges that the petitioner no.1 is a purchaser from the heirs of Kamaruddin he in turn state to have sold the land to Manju Chauhan the petitioner no.2 Manju Chauhan is stated to have sold the land to Yusuf son of Kamaruddin the original tenure holder in December 2009. This sale is obviously after the notification under Section 6 of the Act and is invalid as in the aforesaid background, the petitioner no.2 Manju Chauhan is no longer an interested person as she has already sold the land to Mohld. Yusuf. Mohd. Yusuf is not the petitioner in the present writ petition and thus it is only Sri Amit Jain who is raising this plea. Apart from this the other petitioners also sail in the same boat and they had no subsisting interest once the acquisition has been upheld in a challenge raised by the original vendors Kamaruddin and others. The subsequent purchaser according to him will have no better right then what was possessed by the original tenure holders. He submits that even if they have purchased the land through sale deeds some of which were prior to Section 4 of the notification, yet that would not improve the situation inasmuch as the very acquisition is of a property which has already been notified validly and possession taken of. He further contends that even assuming for the sake of arguments that the petitioners have a statable claim it is only in respect of a very limited area of entire plot no.625 and therefore the petitioners cannot stake a claim in respect of the entire area of plot no.625. He therefore contends that none of the issues raised merit any consideration and the writ petition deserves to be dismissed.

Coming to the first issue raised by the learned counsel for the petitioner that they have independent rights apart from the original tenure holders, suffice it to say that such sale deeds that had been executed prior to the issuance of the notifications under Section 4 i.e. 17th March, 2009, cannot be said to be that of a subsequent purchaser. Secondly, if such sale deeds had been noted and were part of the mutated revenue records, then in that event, such subsequent purchasers are interested persons and were also entitled to notice for receipt of compensation as contemplated under Section 9 of the 1894, Act.

In the instant case, the dispute is about the said notices having not been served on such purchasers of the land. The State alleges to have dispatched notices on 15th September, 2009 and the award was delivered on 01.10.2011 after taking possession. The State has come up with an explanation that the notices had been dispatched but none of the petitioners were found on the spot and a report was submitted that the addressees were all stated to be not residents of the Village of Sultanpur, and are residing either in the city of Ghaziabad or Delhi or Noida. Thus, this is not a case where no notice was sent.

The issue of service of notice and knowledge about the acquisition proceedings cannot be said to be not in the knowledge of the petitioners, inasmuch as, long before the aforesaid notice under Section 9, the petitioners apprehending acquisition of the land had already moved an application on 12.02.2009 on which the Additional District Magistrate had submitted a report in respect of the objections raised on 18th February, 2009. This was even prior to the notifications under Section 4 of the Act. Yet the petitioners being apprehensive were very much having knowledge about the acquisition proceedings being set into motion. This is further substantiated by the fact that the vendors started fighting litigation and the petitioners sat on the fence taking their chances.

Legally Sri Khan, learned Senior Counsel for the petitioner is right in his submission that once the land had been purchased by them, then they being co-tenure holders with the vendors, they also ought to have been served with notices and should have been allowed to file objections to the proposed award and any legal action brought forward by the original tenure holders, who were the vendors of the petitioners, may not bind the petitioners directly, but, in our opinion, in the circumstances of this case where the petitioners apprehending the threat of acquisition did not choose to take immediate action, then in that event the impact of the proceedings having finalized against the original tenure holders up to the stage of disbursement of compensation would be an obstruction to any challenge being raised by them inasmuch as the petitioners are under a bounden duty to explain as to why they did not choose to raise an effective challenge immediately.

The principle of equality has, however, to be looked into as the petitioners cannot be extended any better right than their original tenure holders in respect of the same land which has been acquired but at the same time Article 14 will apply keeping in view the reliefs granted to the tenure holders of the same village to the extent as indicated in the Full Bench judgment in the case of Gajraj and Others Vs. State of U.P. & Others 2011 Volume 11 ADJ 1 where the notifications in respect of village Sultanpur of the year 2003 have been taken into consideration.

Needless to mention that the full Bench judgment in the case of Gajraj (supra) has been affirmed by the Apex Court in the judgment reported in Savitri Devi Vs. State of U.P. & Others 2015 (7) SCC 21. Apart from this, the reasons given hereinafter would also be relevant for the purpose of our aforesaid conclusions.

The next question is about the considerable delay between the initiation of the scheme and the actual acquisition proceedings having been undertaken in order to understand the argument that there was no urgency so as to dispense with the holding of an enquiry.

Learned counsel for the petitioner has urged that in order to acquire the land by Noida for the said scheme the process was initiated in respect of the other contiguous plots of the same village in the year 2003 itself. This was for the purpose of developing farm houses and then also allotting it to Industrial Houses in the name and purpose of Industrial Development. The petitioner alleges this to be a colorable exercise of power, keeping in view the long gap between 2003 and 2009.

The aforesaid submission on behalf of the petitioners has to be seen in the light of the argument of availability of material for dispensing enquiry. If the aforesaid fact of delay is taken to be correct, then in view of the Apex Court judgment in the case of Devendra Singh (supra) and the judgment in the case of Radhe Shyam (supra), it has been held that if the material is not available on record to arrive at a subjective satisfaction then in that event the acquisition proceedings cannot be upheld. The aforesaid argument, may to an extent be correct but the said argument cannot be a ground to interfere in the present acquisition proceedings in relation to Village, Sultanpur, the major part of the area whereof had already been acquired by Noida and stands covered by the law laid down in the case of Gajraj (supra). The benefits arising out of the decision in the case of Gajraj (supra), therefore, may be available to the petitioners if they are able to prove their status as a tenure holder prior to the acquisition proceedings having commenced and no compensation having been awarded in respect of that area of the land possession whereof is being claimed by the petitioner.

We may clarify here, at this stage that all the petitioners have claimed possession of only 2333 sq. mtrs of land out of the total area of 8,280 sq. mtrs of plot no. 625. It may not be out of place to mention here that this is a very small area of just one plot of the land that has been acquired in village, Sultanpur. The issue of delay, therefore, in the said background need not be gone into, in view of what has been said hereinabove so as to find out the cause and satisfaction being recorded for acquisition of the land. The same has already been examined in respect of the original tenure holders which claim has been given up by them in the petitions filed by them as noted at the outset and in respect of all other tenure holders in the case of Gajraj (supra).

For all the aforesaid reasons as well and, keeping in view, the short gap between Section 4 and Section 6 of four and a half months, we are also not inclined to entertain the argument of lapsing the proceedings under Section 11(A) of the 1894, Act. The award is about a week beyond two years with no interim order in between, yet we decline to entertain this question of lapse in the aforesaid background and the above mentioned circumstances and the reasons given hereinafter.

At this juncture the main argument of the petitioner as advanced by Sri Khan, is that, if physical possession has not been taken and no award has been given in favour of the petitioners or compensation paid, then also the petitioners are now entitled to such relief as actual physical possession has not been taken. It is this highly contentious issue that has been agitated by both sides. For this the petitioners have relied on the document filed along with the rejoinder affidavit and also the proceedings that were undertaken to exclude certain land after the vendors had contested the matter and had sought release of the land under Section 48 of the 1894, Act. The respondent-State has come up with a case that possession was taken by the State on 25.01.2010 and handed over simultaneously to the Noida authority. From the facts on record and the possession memo dated 25.01.2010, what is evident is that possession as contemplated under law and the procedure prescribed does not appear to have been taken. The possession memo that is required to be filled up along with details of attesting witnesses and other proceedings to be followed is completely absent and the records nowhere indicate any such material that have been produced before us. Thus, keeping in view the law laid down by the Apex Court particularly that in the case of Banda Development Authority Vs. Moti Lal Agarwal 2011 5 SCC 394, the decision in the case of Raghuraj Singh (supra) and as explained by the Full Bench in the case of Gajraj (supra) and confirmed by the Supreme Court in Savitri Devi's case (supra) leaves no room for doubt that the document of possession dated 25.01.2010 is a document which appears to have been prepared on the office table without complying with any of the ingredients as referred to in the aforesaid decision.

We may reiterate that if the actual physical possession has not been taken as indicated above, then in that event, the learned counsel for the petitioners is right in his submission that the possession having not been taken, the said fact needs to be taken into account for the purpose of the relief claimed. We find no contrary material on record including the records that have been produced by the Noida Authority as well as by the State to take a different view in the matter.

However, here the argument raised by Sri C.B. Yadav, learned counsel for the respondent nos. 5 and 6 has to be taken notice of. The petitioner no. 2 (Manju Chauhan) has sold the land back to Yusuf son of Kamaruddin in December, 2009. The petitioner no. 2, therefore, loses any right to contest the acquisition proceedings, as Yusuf who is the son of Kamaruddin, has throughout with his father contested the litigation of acquisition challenging the notifications in the writ petitions that have been dismissed earlier, and the only relief extended to them on their own asking was that of exemption under Section 48. This argument of Sri Yadav to the effect, that the petitioners have been unable to identify the exact location of the land also deserves acceptance inasmuch as the sale deeds do not describe the exact boundaries and the sketch plan on which reliance has been placed by Sri Khan, learned counsel for the petitioner also does not clarify the same. We are in agreement with the argument of Sri Yadav as the petitioners have failed to identify that part of land of Plot No. 625 of which they are claiming actual physical possession on the spot.

Nonetheless, they have a right to contest their position if not in relation to the notifications which have become final, but because of the fact that if they do not stand on a worse footing than their vendors, then atleast they are on the same footing as their vendors.

It is therefore appropriate to examine their claim on the anvil of Article 14 of the Constitution of India. The original tenure holders and vendors of the petitioner claimed exemption under Section 48 of the 1894 Act, but that was refused by the State Government with a little benefit extended to the extent of 500 sq. mtrs on the ground of the existence of a couple of graves. This is evident from the order of the State Government dated 25.01.2011 and the further action taken by the Noida authorities in pursuance of the said order which only contemplates leasing back the land to the extent of the area concerned. This is the only relief at the best which the petitioner can claim of getting the land leased back, that too even, if they are able to establish a justification for the same. To this extent, it is open to the authorities to consider the request of the petitioners in the event any such land is still available with the Noida authorities.

So far as the acquisition is concerned, in our opinion the same deserves finality as the petitioners have filed this writ petition in the year, 2011 after the battle had been lost by the original tenure holders and the vendors of the petitioners. The fact of the dismissal of the writ petitions filed by the original vendors is being contested only on the ground that the same would not bind the petitioners. As already observed above a legal argument strictly construed on the principle of res-judicata and binding precedent may not raise an estoppel against the petitioners to file a petition, but in the background aforesaid the petitioners appear to have been sitting on the fence and further they would be entitled only to the benefits to the extent as indicated hereinabove. The notifications for such a small piece of land, therefore, cannot quashed on any of the grounds as raised by the petitioners, after all this exercise and the period which has been consumed in litigation.

We therefore reject the relief prayed for quashing of the acquisition notifications or for quashing the leases that had been granted in favour of the contesting respondents on 21st June, 2011 and 6th June, 2011. For the same reasons, there is no occasion to quash the award dated 07.06.2011.

The acquisition proceedings and other consequential action of the respondents is upheld subject to a direction that the petitioners, if they are able to establish their right to the holding would be entitled to a consideration post acquisition in terms of giving them any benefit of land to the extent being leased back, as in the case of the other tenure holders as per the order of the State Government dated 25.01.2011 and the consequential decisions of the authority in the same ratio, and if the same is not possible either on the ground of non-availability of land or on account of impossibility of any such adjustment, then the petitioners would be entitled to such benefits as extended in the case of Gajraj (supra) provided they fulfill the conditions set out therein.

The writ petition stands disposed of, accordingly.

Order Date :- 08.11.2017

R./S.Chaurasia