Smt. Sukhdeyi & Others vs State Of U.P. Thru' Secy. & Others
2017 Latest Caselaw 6806 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
RESERVED
 
Court No. - 37
 

 
Case :- WRIT - C No. - 37534 of 2004
 

 
Petitioner :- Smt. Sukhdeyi & Others
 
Respondent :- State Of U.P. Thru' Secy. & Others
 
Counsel for Petitioner :- Dharam Pal Singh,P.K. Dubey,P.K.Tripathi,S. Niranjan
 
Counsel for Respondent :- C.S.C.,A.K. Singh,Pradeep Kumar Tripathi,Vivek Verma
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Saral Srivastava,J.

The petitioners claim themselves to be the recorded tenure holders of the said land situate in Village Barra Tehsil and district Kanpur Nagar.

This writ petition was filed in the year 2004 praying for a mandamus restraining the Kanpur Development Authority, the respondent no.2 herein, from executing any new plan or raise constructions over the land, the details whereof are given in paragraph no.3 of the writ petition. Further prayer has been made not to allow the said Authority to allot the land to any other person and further that the powers under Section 17 of the U.P. Urban Planning and Development Act, 1973 may be exercised by the Competent Authority for restoring back the land to the petitioners as it has not been utilized till date inspite of having been acquired for the Kanpur Development Authority.

Vide order dated 18.09.2004 the respondent was granted one months' time to file a counter affidavit. The State respondent no.1 has not filed any counter affidavit till date. The respondent no.2 has filed a counter affidavit dated 28.05.2017 stating therein that the plots in dispute were acquired under notifications issued under Chapter XIV of the Nagar Mahapalika Adhiniyam, 1959 (U.P. Act No.II of 1959) that were published in the Gazette on 28.04.1962 and 05.10.1963.

The award was rendered on 31.12.1968 by the Special Land Acquisition Officer, Nagar Mahapalika, Kanpur exercising powers under the 1959 Act.

It may be put on record that there was no Kanpur Development Authority in existence when the acquisition presently involved took place as the U.P. Urban Planning and Development Act, 1973 was enacted much thereafter and the authorities were created thereupon.

It appears that after the creation of the authorities, since such development was taken over from the Local Bodies and handed-over to the Development Authorities, the land in question came under the management and control of the Kanpur Development Authority. The Development Authority appears to have utilized the land in a scheme known as World Bank Scheme Barra and the same has been executed on the spot between the year 1985 to 1990.

It has also been stated in the counter affidavit that this attempt by the petitioners to seek relief in terms of Section 17 of the 1973 Act after the land had been acquired way back in 1962, in a writ petition filed after 42 years, should not be entertained, and the discretionary relief should be refused. It is also stated in the counter affidavit that the Development Authority had already deposited the entire amount of compensation in this regard.

Sri Dharam Pal Singh, learned Senior Counsel for the petitioners has urged that the State Government had called upon the Vice Chairman of the Development Authority to consider the representations filed by the petitioners and he has invited the attention of the Court to Annexure Nos.2 and 3 of the writ petition. He further submits that the relevant revenue extracts indicate that the names of the petitioners were continued to be recorded till the year 1985 whereafter their names were expunged and the Kanpur Development Authority has been recorded in the revenue records. He therefore submits that the petitioners are at least entitled to a consideration of their request in terms of Section 17 of the U.P. Urban Planning and Development Act, 1973.

Sri Pradeep Kumar Tripathi for the Authority has however refuted the said submissions and urged that the petitioners do not have any legal subsisting right to be enforced in view of the stand taken in the counter affidavit.

Having heard learned counsel for the parties and the learned Standing Counsel for the State we find that Section 17 is designed to impose an obligation on the State Government to acquire any land for the Authority in terms of the 1894 Act. The same however carves out a proviso that if after the expiry of five years from the date of such acquisition, the land has not been utilized, then the tenure holders can apply to the State Government for restoration of their land, and on a satisfaction to that effect the restoration can be allowed provided the tenure holders deposit the charges that were incurred in connection with the acquisition together with interest @ 12%. Section 17 is extracted hereinunder :

"17. Compulsory acquisition of land - (1) If in the opinion of the State Government any land is required for the purpose of development, or for any other purpose, under this Act, the State Government may acquire such land under the provisions of the Land Acquisition Act, 1894:

Provided that any person from whom any land is so acquired may after the expiration of a period of five years from the date of such acquisition apply to the State Government for restoration of that land to him on the ground that the land has not been utilized within the period for the purpose for which it was acquired, and if the State Government is satisfied to that effect it shall order restoration of the land to him on repayment of the charges which were incurred in connection with the acquisition together with interest at the rate of twelve percent per annum and such development charges if any as may have been incurred after acquisition.

(2) Where any land has been acquired by the State Government, that Government may, after it has taken possession of the land, transfer the land to the Authority or any local authority for the purpose for which the land has been acquired on payment by Authority of the local Authority of the compensation awarded under that Act and of the charges incurred by the Government in connection with the acquisition."

A perusal of the said provisions would indicate that there are two sub-Sections in Section 17. The first gives a discretion given to the Government that if the land is not utilized for the purpose for which it was acquired then the State Government can take action in this regard. In the instant case this is not a land acquired under the 1894 Act as contemplated under Section 17 by the respondent authority. The land was acquired much prior to the enforcement of the 1973 Act in 1962 and 1963 under the provisions of the 1959 Act referred to hereinabove. There is no such provision in the 1959 Act at par with Section 17 of the 1973 Act whereunder any such power was available with the State Government for restoring the land back to the tenure holders. Upon acquisition, the Scheme could have been abandoned with the approval of the State Government under Section 367-A of the 1959 Act or the land could have been disposed off by the Corporation under Section 368. No such action was taken or attempted by the tenure holders. The acquisition therefore became complete free from all encumbrances. Any revenue entry in favour of the petitioners continuing thereafter, has no legal effect and any claim of possession would be unlawful.

The Development Authority succeeded to the assets of the Nagar Mahapalika after the coming into force of the 1973 Act. The acquisition was therefore not under the 1894 Act or in terms of Section 17 of the 1973 Act. The said provision would therefore not apply on the facts of the present case as the acquisition was under the 1959 Act as explained above.

Chapter XIV of the 1959 Act, which was then applicable for implementing improvement schemes provided for acquisition of land by a Municipal Corporation under the Act as per the provisions of the Land Acquisition Act, 1894, as modified by the provisions thereunder. Section 365 (2) of the 1959 Act is extracted hereinunder :

"(2). The Corporation may for the purposes of an improvement scheme sanctioned under this Chapter acquire land or interest in land under the provisions of the Land Acquisition Act, 1894, as modified by the provisions of this Chapter."

The mode and procedure of finalization of the scheme and acquisition of land for such purpose is through notifications that are pari-materia to an extent as provided for under Sections 4 and 6 of the 1894 Act. A scheme is framed under Section 351 of the 1959 Act followed by its approval by a Development Committee under Section 356 thereof and constituted thereunder. A preliminary notice is issued under Section 357 inviting objections to the scheme. Then begins the publication of a notice proposing acquisition under Section 358 which is a procedure akin to Section 4 of the 1894 Act. The objections are to be thereafter be considered by the Development Committee that shall submit its recommendations about the scheme together with the objections to the Corporation under Section 359. The Corporation shall either sanction or abandon the scheme or accept it with modifications upon a consideration of the objections. If the scheme has an estimated cost of above Rs.10 lakhs, the sanction of the State Government shall be essential as per Section 360 of the 1959 Act. The State can exercise powers accordingly under Section 361 thereof. The scheme can be altered after sanction under Section 364.

The sanction is to be notified in the Gazette as per Section 363 which is an exercise akin to section 6 of the 1894 Act.

The acquisition thereafter takes place as per Section 365. All disputes relating to a claim of acquisition are to be adjudicated by a Tribunal constituted and functional as per Sections 371 to 380 of the 1959 Act with a provision of appeal to the High Court under Section 381 of the Act.

The entire scheme of the 1959 Act under Chapter XIV is therefore a complete code pertaining to acquisition that was permissible under the Act when the acquisition in the present case took place in the year 1962-1963. As noted above there is no provision unlike Section 17 of the 1973 Act where the State Government could have exercised any such powers. The entire proceedings under the 1959 Act had therefore concluded with the acquisition of the land that does not appear to have been challenged. Section 17 of the 1973 Act for all the aforesaid reasons can not grant a new lease of life to a already concluded claim and therefore the prayer made by the petitioners can not be granted.

The petitioners contend that they have not been paid compensation. From the application stated to have been moved by the petitioners dated 20.09.2002, Annexure-4 to the writ petition, it appears that the petitioners themselves have stated that they have not lifted the compensation. Thus this is not a case where the compensation is alleged to have not been deposited before the Competent Authority and rather it is a case where the petitioners themselves alleged to have not lifted the compensation.

Apart from this the notifications are of the year 1962-1963 under the 1959 Act. To file a writ petition after 42 years also raises the issue of laches. The explanation given is that till 1985 since their names was recorded, the petitioners started making a request thereafter when their names were expunged keeping in view Section 17 of the 1973 Act. From the annexures filed in the writ petition it appears that the applications were moved in the year 2002 almost seven years after their names were expunged. There is no explanation of the delay and laches in this regard. Apart from this the entire colony having been developed and almost two generations having passed by after the acquisition, the petitioners have no where indicated as to why their predecessors who were the recorded tenure holders at the time of acquisition had not raised any such dispute either about acquisition or a challenge being raised against the notification or the award.

In the absence of any such material and the facts aforesaid we do not find this to be a case where a mandamus can be issued to the respondent State in terms of Section 17 of the 1973 Act. The writ petition lacks merit and is accordingly dismissed.

Order Date :- 14.11.2017

R./