Ramesh Chandra Gupta And Another vs Kanpur Development Authority And ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 37
 
Case :- WRIT - C No. - 59944 of 2011
 
Petitioner :- Ramesh Chandra Gupta And Another
 
Respondent :- Kanpur Development Authority And Others
 
Counsel for Petitioner :- Govind Krishna,Ganesh Mani,Pradeep Chandra,Rajeev Misra,Sushil Dubey
 
Counsel for Respondent :- Vivek Varma,Ajeet Kumar Singh,Anoop Trivedi,O.P.Tripathi,Ramesh Upadhyay,S.C.
 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Rajiv Lochan Mehrotra,J.

(Delivered by Hon'ble A.P. Sahi,J)

The petitioners land holding has been occupied by the respondent Kanpur Development Authority without any acquisition or requisition by the State hence this petition.

The petitioners had initially filed the writ petition praying for a mandamus that they be provided the amount of consideration which the respondent Kanpur Development Authority has received from M/s Apes Property Ltd. Connaught Place, New Delhi together with interest thereon in respect of land that had been offered in exchange to the petitioners. However, the writ petition was later on amended with a relief of providing alternative plots to the petitioners as proposed on 10th January, 2014 and not to negotiate the same with any third party. A further amendment has been made challenging the resolution of the Board of the Development Authority whereby a decision has been taken not to provide any such consideration or alternative plot but to pay compensation in respect of any land which may have been utilized by the Development Authority for its purpose. Thus a certiorari has been prayed for to quash the resolution dated 17th January, 2015. Affidavits have been exchanged between the parties and we had heard the matter on earlier occasions calling upon learned counsel for the parties to assist the Court with clarifications.

The dispute raised by the petitioners is essentially to the effect that they are tenure holders of plot no. 1098. The said plots have been acquired by them from it's erstwhile owners. This land had been subject matter of acquisition proceedings under the Land Acquisition Act, 1894 way back in the 1960s, the award whereof was given on 31st December, 1968, after taking possession on 09.09.1968 from its then owner Sri Surendra Nath Seth. The proceedings had been challenged in Writ Petition No. 268 of 1970 which was allowed on 19th December, 1973 and the land, including the present plot in dispute, was excluded from acquisition. A special appeal was filed against the judgment of the learned Single Judge which was dismissed on 22nd January, 2008. After the writ petition was allowed, correspondence ensued in order to move for a fresh acquisition but the same could not materialize as in-spite of the proposal, no notification under Section 4 of the 1894 Act was issued. Thus, the land of plot no. 1098 area 2.676 hectares remained intact and the petitioners to the extent of their share retained possession of the said land which was in the shape of an uneven plot.

The Kanpur Development Authority developed a colony known as Indira Nagar Colony and in order to connect the said colony with a road, it required land with 482 ft. length with a width of 150 ft. for the said purpose. The road had to pass through plot no. 1098 and accordingly as per the case set up by the petitioner the same was negotiated by the Kanpur Development Authority. With the petitioner. The petitioner accordingly in writing made an offer on 30th December, 2013 offering 6158 sqms. of land to the respondent Development Authority. With a request that the authority may in exchange give land to the petitioner of the same quality and status. According to the petitioner the said offer of the petitioner was considered and in between the road came to be partly constructed over an area of 5838.76 sqms.

A proposal was made in favour of the petitioner offering an area of 7876.39 sqms in village Bisayakpur Bangar where the Development Authority under a scheme had developed the said area and had numbered it as plot nos. 10 and 11 of Block A-1 Lakhanpur, Kanpur. The said plots had been carved out of four revenue plots namely plot nos. 704m, 706m, 709m and 710m of the said village.

The matter engaged the attention of the authorities and a report came to be submitted on 28.02.2004 to the effect that the land which was being offered to the petitioner in exchange was excess in area to the land which has been occupied for the road and therefore, appropriate steps should be taken. This was followed by another report dated 01.03.2004 proposing that the petitioner had been offered an excess area than what was being given by him, therefore, the additional cost of the excess area together with betterment charges should be realized. These reports are contained in the note sheet of the Development Authority that have been filed on record. After this note sheet was forwarded, the proposal was accepted on 27th March, 2004 with a further order on 26th April, 2004.

It is on the strength of such proposal having been accepted by the Vice Chairman of the Development Authority that the petitioner insisted on handing over possession of the said land. It may be stated that the note sheets also record that the land which was being proposed to be given to the petitioner was marked for organized games.

Since the petitioners request was not crystallized by any formal agreement to deliver the proposed plots in exchange, he filed Writ Petition No. 2493 of 2005 for a mandamus. A direction was issued by the High Court on 25th January, 2005 to decide the said representation.

The respondents proceeded to put the plots that had been offered to the petitioner for allotment by way of lottery. Before that, this proposal of the petitioner came to be cancelled on 15th January, 2007 by the authority itself. The authority then proceeded to allot the said proposed land by way of lottery to M/s Apes Property Ltd., Connaught Place, New Delhi, for which a sale deed came to be executed on 30th November, 2007. Thus, the plots which had been originally offered to the petitioner was transferred as noted above.

The petitioner in the year 2010 filed Writ Petition No. 12780 of 2010 seeking delivery of possession of the same plots which writ petition was disposed of with the observation that it was not possible to issue such a mandamus, but at the same time the petitioner was permitted to move a representation that was to be decided by the Development Authority. This order dated 26th August, 2010 has been filed on record which specifically denies the relief of exchange of the same plots.

It is thus clear that so far as the plots that were initially offered, the same had been settled in favour of a third party.

The representation of the petitioner remained pending as such he filed a Contempt Application No. 3552 of 2011 in which notices were issued on 27.07.2011 calling upon the Development Authority and it's officers to comply with the direction on 26.08.2010. The Development Authority rejected the representation of the petitioner on 9th September, 2011.

It appears that the petitioners made a third attempt and a fresh report was submitted on 10th January, 2014 stating therein that the earlier land offered to the petitioner has already been sold through lottery, after the proposal had been cancelled in 2007 and consequently, a fresh proposal was made offering other plots in the same village where the petitioners plots was situated. The area of the proposed plots being plot nos. 1065, 1079, 1141 and 1147 have been referred in the said report which is on record along with the amendment application dated 15th January, 2014. The petitioner, accordingly, moved the amendment application praying that now a direction be issued for accepting the said proposal and transferring the said land to the petitioner.

The petitioners contend that the said proposal came to be considered by the board and approved on 14.10.2014, yet, no action was taken to give this fresh offer a definite shape and no transfer of property was made. In between a fresh resolution was passed by the Board on 17th January, 2015 whereby it was resolved that in all such matters where the land has been occupied by the Development Authority without compensation or acquisition, the compensation at market rate should be paid to the tenure holders. A stand before this Court has also been taken by Sri Ajeet Kumar Singh, learned counsel for the Kanpur Development Authority that the Development Authority will not be able to give land in exchange and that only compensation can be offered to the petitioner.

The petitioners have also alleged that the Development Authority had entered into an exchange with others as is evident from the sale deed dated 12th July, 2011, copy whereof has been filed on record. It is therefore, submitted on behalf of the petitioners that this amounts to discrimination and Sri Rajeev Mishra, learned counsel contends that once the Development Authority had accepted the offer and had passed resolutions in favour of the petitioners, then it was bound to give land in exchange. Sri Rajeev Mishra has further submitted that the respondents are estopped from taking a contrary stand as they had already acquiesced to the offer of the petitioner by passing a resolution as referred to hereinabove and in the circumstances, the Development Authority is bound to give land in exchange to the petitioners.

The first issue that we had called upon the learned counsel for the parties to address is that the petitioner being a tenure holder and a Bhumidhar of the land as defined under the U.P.Z.A and L.R. Act, 1950 read with U.P. Revenue Code, 2006 could have exchanged his land only in terms of Section 167 of 1950 Act read with Section 101 of the 2006 Code. To this the reply Sri Rajeev Mishra was that the land of the petitioner was declared as non-agricultural land in terms of Section 143 of the 1950 Act on 26th May, 2008. In such circumstances, there would be no bar of exchange as after a declaration under Section 143, the provisions of Section 167 and the corresponding provision of Section 101 of 1960 Code would not apply.

This Court finds it that this issue becomes irrelevant as the offer which was made by the petitioner, initially in 2003 was of a land the nature whereof had not been declared as residential under Section 143 of 1950 Act as noted above. The declaration came only in the year 2008. Thus, at that point of time, without the permission of the competent authority the exchange could not have been given effect to and there is nothing on record to indicate that the permission of the Sub-Divisional Officer for exchange had been taken. However, later on after the declaration under Section 143 of the 1950 Act, whether permission was required has to be seen as it has also been brought on record that the land of the Kanpur Development Authority had been obtained through a resumption on 05.12.1986 in terms of Section 117(2) of the U.P.Z.A. and L.R. Act, 1950 Act, which could have been offered in exchange.

Apart from this, it has been pointed out by Sri Rajeev Mishra that the authority itself has the power to acquire land by exchange. He has invited the attention of the Court to Section 18 of the U.P. Urban Planning Development Act, 1973 which is extracted hereinunder:-

" (2) Nothing in this Act shall be construed as enabling the Authority or the local Authority concerned to dispose of land by way of gift, but subject thereto, references in this Act, to the disposal of land shall be construed as references to the disposal thereof in any manner, whether by way of sale, exchange or lease or by the creation of any easement, right or privilege or otherwise."

Thus, it is evident that the authority can acquire land by way of exchange.

However, in the instant case, what we find is that the initial proposal came to be cancelled in the year 2007. The claim of exchange was negatived by the High Court on 26th August, 2010 whereafter the petitioner's representation was rejected on 9th September, 2011. Thus, any further attempt being made by the petitioner was obviously with the aid of the officials of the Kanpur Development Authority. The Kanpur Development Authority has now taken a decision in 2015 not to give land in exchange to any tenure holder and rather award compensation. The petitioner does not have any indefeasible right to claim compensation in the shape of exchange of land. As a matter of fact, when the petitioner initially filed the writ petition, he prayed for a very strange relief, namely, that of paying the entire consideration money that had been received from those persons in whose favour allotments had been made of the land that had been offered to the petitioners. We are unable to comprehend as to how such a relief was maintainable that to through a jurisdiction under Article 226 of the Constitution of India. However, by way of improvement through amendments the petitioner came to modify his relief as and when he succeeded in getting favourable reports of exchange that commenced with the report dated 10th January, 2014. The resolution of the Board dated 14.10.2014 was never given effect to. The petitioner does not have any such inherent right to claim allotment of land under a scheme or otherwise inasmuch as that would violate Article 14 as such similar situate persons may also claim such allotment. Land belonging to public authority has to be settled by way of auction or through a transparent system. It is on record that the land belonging to the petitioners namely plot no. 1098 was an uneven land and in exchange thereof the petitioners desired developed land. This would be clearly inequitable and impermissible even if, the authority has the power to acquire land by exchange under Section 18 of the Act. The judgment dated 26.08.2010 of the High Court further seals the claim of the petitioners. The petitioners cannot claim any corresponding right of exchange as Section 18 of the 1973 Act does not create any right. The authority having not executed it's own resolution, no estoppel or acquiescence can be pleaded as the resolution did not crystallize into any action.

The Board, therefore, rightly, resolved to pay compensation but at the same time, we may observe that the Development Authority ought not to have adopted any means so as to kindle a hope in the petitioner for allotment of developed land. The authority had therefore, unfairly treated the petitioner and which appears to be a matter of an unwarranted negotiation in spite of the rejection of the request of the petitioner, firstly, on 15th January, 2007 and then again on 9th September, 2011. The proposal dated 10th January, 2014 therefore, does not deserve to be implemented and we cannot approve of the same.

However, the writ petition deserves to be disposed of with a direction that now in view of the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, the petitioner is entitled to all such benefits of compensation as the land has already been occupied for the construction of a road. It is also on record that no acquisition of the land has taken place till date. Accordingly, it is open to the Kanpur Development Authority to forthwith negotiate any compensation with the petitioners and in the event of any failure on their part to do so. The petitioner shall apply before the District Magistrate/ Collector Kanpur Nagar who shall immediately set into motion proceedings with regard to award of compensation to which the petitioners may be entitled and finalize the same expeditiously.

We therefore, provide that it will be open to the Kanpur Development Authority to negotiate the compensation with the petitioners within a period of two months from today. If, negotiations fail it will be open to the petitioners to approach the District Magistrate/ Collector, Kanpur Nagar who shall then take steps for award of compensation to the petitioners after calling upon the Kanpur Development Authority to participate in the same and award compensation within three months thereafter.

With the aforesaid directions the writ petition stands disposed of.

12.09.2017/ M. ARIF