Ramesh And 9 Others vs State Of U P And 3 Others
2019 Latest Caselaw 982 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 3
 
Case :- WRIT - C No. - 8869 of 2019
 
Petitioner :- Ramesh And 9 Others
 
Respondent :- State Of U P And 3 Others
 
Counsel for Petitioner :- Kamlesh Kumar Mishra
 
Counsel for Respondent :- C.S.C.,Kaushalendra Nath Singh
 

 
Hon'ble Pankaj Kumar Jaiswal,J.

Hon'ble Dr. Yogendra Kumar Srivastava,J.

(Per Dr. Yogendra Kumar Srivastava,J.)

1. Heard Sri Kamlesh Kumar Mishra, learned counsel for the petitioners, Sri Kaushalendra Nath Singh, learned counsel for the respondent no. 4 and Sri Hari Keshav, learned Standing Counsel for the State.

2. By means of the present petition, a direction is sought commanding the respondents to pay additional compensation @ 64.70% and to allot 5% developed land to the petitioners in terms of the judgment of Full Bench in Gajraj Singh and others Vs. State of U.P. And others1.

3. The petitioners claim to be owners of certain land parcels situate in Village Baraula, Pargana and Tehsil Dadri, District Gautam Budh Nagar which were subject matter of acquisition proceedings in terms of notification dated 30.6.1999 issued under Section 4 (1)/17(4), and the notification dated 21.6.2000 issued under Section 6/17 (1) of the Land Acquisition Act 1894. The petitioners admit to having received compensation under "The Determination of Compensation and Declaration of Award Rules, 1997" (the Agreement Rules of 1997) made under Section 55 of the Act, 1894.

4. It is an admitted position that the petitioners did not challenge the land acquisition proceedings. The writ petition is also silent as to whether the notifications under which the land of the petitioners was acquired, were under challenge in the bunch of writ petitions which were decided along with the case of Gajraj Singh and others.

5. Learned counsel appearing for the State respondents and also the learned counsel for the Noida Authority have submitted that the benefit granted by the Full Bench in the case of Gajraj Singh and others would not be applicable to the case of the petitioners for the reason that the petitioners were neither parties in the writ petitions which had been decided along with the case of Gajraj Singh and others nor the notifications under which the land of the petitioners has been acquired were subject matter of challenge in the case of Gajraj Singh and others. Further more, it has been submitted that in terms of the direction contained in the Full Bench judgment, the Noida Authority has taken a decision not to allot the abadi plot to the extent of 10% to those land owners who had not approached the writ court and had not challenged the acquisition proceedings.

6. In the case of Gajraj Singh and others, the notifications in respect of land acquisition proceedings with respect to tracts of land situate in different villages were decided and the writ petitions were disposed of in terms of the following directions :-

"481. As noticed above, the land has been acquired of large number of villagers in different villages of Greater Noida and Noida. Some of the petitioners had earlier come to this Court and their writ petitions have been dismissed as noticed above upholding the notifications which judgments have become final between them. Some of the petitioners may not have come to the Court and have left themselves in the hand of the Authority and State under belief that the State and Authority shall do the best for them as per law. We cannot lose sight of the fact that the above farmers and agricultures/owners whose land has been acquired are equally affected by taking of their land. As far as consequence and effect of the acquisition it equally affects on all land losers. Thus land owners whose writ petitions have earlier been dismissed upholding the notifications may have grievances that the additional compensation which was a subsequent event granted by the Authority may also be extended to them and for the aforesaid, further spate of litigation may start in so far as payment of additional compensation is concerned. In the circumstances, we leave it to the Authority to take a decision as to whether the benefit of additional compensation shall also be extended to those with regard to whom the notifications of acquisition have been upheld or those who have not filed any writ petitions. We leave this in the discretion of the Authority/State which may be exercised keeping in view the principles enshrined under Article 14 of the Constitution of India.

482. In view of the foregoing conclusions we order as follows:

1. The Writ Petition No. 45933 of 2011, Writ Petition No. 47545 of 2011 relating to village Nithari, Writ Petition No. 47522 of 2011 relating to village Sadarpur, Writ Petition No. 45196 of 2011, Writ Petition No. 45208 of 2011, Writ Petition No. 45211 of 2011, Writ Petition No. 45213 of 2011, Writ Petition No. 45216 of 2011, Writ Petition No. 45223 of 2011, Writ Petition No. 45224 of 2011, Writ Petition No. 45226 of 2011, Writ Petition No. 45229 of 2011, Writ Petition No. 45230 of 2011, Writ Petition No. 45235 of 2011, Writ Petition No. 45238 of 2011, Writ Petition No. 45283 of 2011 relating to village Khoda, Writ Petition No. 46764 of 2011, Writ Petition No. 46785 of 2011 relating to village Sultanpur, Writ Petition No. 46407 of 2011 relating to village Chaura Sadatpur and Writ Petition No. 46470 of 2011 relating to village Alaverdipur which have been filed with inordinate delay and laches are dismissed.

2.i) The writ petitions of Group 40 (Village Devla) being Writ Petition No. 31126 of 2011, Writ Petition No. 59131 of 2009, Writ Petition No. 22800 of 2010, Writ Petition No. 37118 of 2011, Writ Petition No. 42812 of 2009, Writ Petition No. 50417 of 2009, Writ Petition No. 54424 of 2009, Writ Petition No. 54652 of 2009, Writ Petition No. 55650 of 2009, Writ Petition No. 57032 of 2009, Writ Petition No. 58318 of 2009, Writ Petition No. 22798 of 2010, Writ Petition No. 37784 of 2010, Writ Petition No. 37787 of 2010, Writ Petition No. 31124 of 2011, Writ Petition No. 31125 of 2011, Writ Petition No. 32234 of 2011, Writ Petition No. 32987 of 2011, Writ Petition No. 35648 of 2011, Writ Petition No. 38059 of 2011, Writ Petition No. 41339 of 2011, Writ Petition No. 47427 of 2011 and Writ Petition No. 47412 of 2011 are allowed and the notifications dated 26.5.2009 and 22.6.2009 and all consequential actions are quashed. The petitioners shall be entitled for restoration of their land subject to deposit of compensation which they had received under agreement/award before the authority/Collector.

2(ii) Writ petition No. 17725 of 2010 Omveer and others Vs. State of U.P. (Group 38) relating to village Yusufpur Chak Sahberi is allowed. Notifications dated 10.4.2006 and 6.9.2007 and all consequential actions are quashed. The petitioners shall be entitled for restoration of their land subject to return of compensation received by them under agreement/award to the Collector.

2(iii) Writ Petition No.47486 of 2011 (Rajee and others vs. State of U.P. and others) of Group-42 relating to village Asdullapur is allowed. The notification dated 27.1.2010 and 4.2.2010 as well as all subsequent proceedings are quashed. The petitioners shall be entitled to restoration of their land.

3. All other writ petitions except as mentioned above at (1) and (2) are disposed of with following directions:

(a) The petitioners shall be entitled for payment of additional compensation to the extent of same ratio (i.e. 64.70%) as paid for village Patwari in addition to the compensation received by them under 1997 Rules/award which payment shall be ensured by the Authority at an early date. It may be open for Authority to take a decision as to what proportion of additional compensation be asked to be paid by allottees. Those petitioners who have not yet been paid compensation may be paid the compensation as well as additional compensation as ordered above. The payment of additional compensation shall be without any prejudice to rights of land owners under section 18 of the Act, if any.

(b) All the petitioners shall be entitled for allotment of developed Abadi plot to the extent of 10% of their acquired land subject to maximum of 2500 square meters. We however, leave it open to the Authority in cases where allotment of abadi plot to the extent of 6% or 8% have already been made either to make allotment of the balance of the area or may compensate the land owners by payment of the amount equivalent to balance area as per average rate of allotment made of developed residential plots.

4.The Authority may also take a decision as to whether benefit of additional compensation and allotment of abadi plot to the extent of 10% be also given to;

(a) those land holders whose earlier writ petition challenging the notifications have been dismissed upholding the notifications; and

(b) those land holders who have not come to the Court, relating to the notifications which are subject matter of challenge in writ petitions mentioned at direction No.3.

5. The Greater NOIDA and its allottees are directed not to carry on development and not to implement the Master Plan 2021 till the observations and directions of the National Capital Regional Planning Board are incorporated in Master Plan 2021 to the satisfaction of the National Capital Regional Planning Board. We make it clear that this direction shall not be applicable in those cases where the development is being carried on in accordance with the earlier Master Plan of the Greater NOIDA duly approved by the National Capital Regional Planning Board.

6. We direct the Chief Secretary of the State to appoint officers not below the level of Principal Secretary (except the officers of Industrial Development Department who have dealt with the relevant files) to conduct a thorough inquiry regarding the acts of Greater Noida (a) in proceeding to implement Master Plan 2021 without approval of N.C.R.P. Board, (b) decisions taken to change the land use, (c) allotment made to the builders and (d) indiscriminate proposals for acquisition of land, and thereafter the State Government shall take appropriate action in the matter."

7. In terms of the aforementioned directions, particularly the directions issued under para 482(3), it was held that all the petitioners in the bunch of writ petitions would be entitled for payment of additional compensation to the extent of 64.70% in addition to the compensation already received and also would be entitled for allotment of developed abadi land to the extent of 10% of their acquired area. In paragraph 482 (4), the Authority was directed to take a decision as to whether benefit of additional compensation and allotment of abadi plot to the extent of 10% was to be given to those land owners whose writ petitions challenging the notifications had been dismissed earlier and also those land holders who had not come to the Court to challenge the notifications which were subject matter of challenge in the writ petitions decided along with the case of Gajraj Singh and others. It may be pertinent to note that there was no direction for grant of payment of additional compensation/allotment of abadi land or for consideration of the said benefits by the Authority in respect of those persons whose land had been acquired in terms of notifications which were not subject matter of challenge in the case of Gajraj Singh and others and connected bunch of writ petitions.

8. The judgment in the case of Gajraj Singh and others was challenged before the Supreme Court in the case of Savitri Devi vs. State of U.P. and others2, and the same was affirmed after duly taking note of the fact that directions had been issued by the High Court in the peculiar circumstances of the case and would not form a precedent for future cases. The relevant extract from the judgment in the case of Savitri Devi is as follows :-

"46. Thus, we have a scenario where, on the one hand, invocation of urgency provisions under Section 17 of the Act and dispensing with the right to file objection under Section 5-A of the Act, is found to be illegal. On the other hand, we have a situation where because of delay in challenging these acquisitions by the landowners, developments have taken in these villages and in most of the cases, third party rights have been created. Faced with this situation, the High Court going by the spirit behind the judgment of this Court in Bondu Ramaswamy and Others (2010) 7 SCC 129 came out with the solution which is equitable to both sides. We are, thus, of the view that the High Court considered the ground realities of the matter and arrived at a more practical and workable solution by adequately compensating the landowners in the form of compensation as well as allotment of developed abadi land at a higher rate i.e. 10% of the land acquired of each of the landowners against the eligibility and to the policy to the extent of 5% and 6% of Noida and Greater Noida land respectively.

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56. Keeping in view all these peculiar circumstances, we are of the opinion that these are not the cases where this Court should interfere under Article 136 of the Constitution. However, we make it clear that directions of the High Court are given in the aforesaid unique and peculiar/specific background and, therefore, it would not form precedent for future cases."

9. Pursuant to the directions issued under para 482 (4) of the judgment in the case of Gajraj Singh and others the respondent authority took a decision in its Board meeting of paying additional compensation to the extent of 64.7% to all land owners whether they had challenged the notifications or not. In terms of the directions contained in paragraph 482(4) of the judgment, NOIDA Authority took a decision not to allot abadi plot to the extent of 10% to those land owners who had not approached the writ court and had not questioned the acquisition proceedings. This decision of the authority was based on the fact that such huge area of developed abadi land was not available so as to allot it to all such persons who did not approach the Court.

10. The contention of the petitioners that irrespective of the fact whether the notifications issued in respect of land acquisition proceedings were under challenge along with the bunch of cases decided by the Full Bench they should be granted the same benefit regarding additional compensation and developed abadi plot as was granted by the Full Bench is liable to be rejected, for the reason that in the case of Gajraj Singh and others the Full Bench granted relief to the petitioners and to such persons whose earlier writ petitions challenging the notifications had been dismissed or who had not come to the Court challenging the notifications which were subject matter of challenge in the writ petitions, in view of the peculiar facts of the case having regard to the extensive development which had taken place subsequent to the acquisition proceedings, and also that the Supreme Court in the case of Savitri Devi had made it clear that the directions issued by the Full Bench shall not be treated as a precedent in future cases.

11. The issue with regard to allotment of developed abadi land to the land owners who had not filed writ petitions, came up for consideration before the High Court in the case of Khatoon and others Vs. State of U.P. and others3 and it was held that land holders who had not come to the Court relating to the notifications which were subject matter of challenge in the writ petitions decided along with the case of Gajraj Singh and others would not be entitled to the said benefit. It may be relevant to notice that in the case of Khatoon and others, the notifications under which the land had been acquired, were subject matter of challenge in the bunch of cases decided along with Gajraj Singh and others but the tenure holders had not filed any writ petition to challenge the acquisition proceedings. The relevant portion of the judgment in the case of Khatoon and others is being extracted below :-

"17. In other words, the case of the appellants (writ petitioners) before the High Court was that the reliefs, which were granted to the landowners by the Full Bench in Gajraj's case (supra) be also granted to the appellants because their lands were also acquired in the same acquisition proceedings in which the lands of the writ petitioners of Gujrat's case (supra) was acquired. In effect, the relief was prayed on the principles of parity between the two landowners quo State.

18. It is, however, pertinent to mention that so far as the direction of the High Court to award additional compensation payable at the rate of 64.70% was concerned, the same was already implemented by the State by paying the compensation to all the landowners including the appellants without any contest.

19. In this view of the matter, the only question before the High Court in the appellants' writ petitions that remained for decision was as to whether the appellants are also entitled to claim the relief of allotment of developed abadi plot to the extent of 10% of their acquired land subject to maximum of 2500 Sq.M.in terms of the judgment in Gajraj's case (supra) and Savitri Devi's case (supra).

37. Therefore, the only question that now survives for consideration in these appeals is whether the appellants are entitled to get the benefit of second direction issued by the High Court in the case of Gajraj (supra), namely, allotment of developed abadi plot to the appellants.

38. In our considered opinion, the appellants are not entitled to get the benefit of the aforementioned second direction and this we say for the following reasons.

39. First, the High Court in the case of Gajraj (supra) had, in express terms, granted the relief of allotment of developed abadi plot confining it only to the landowners, who had filed the writ petitions. In other words, the High Court while issuing the aforesaid direction made it clear that the grant of this relief is confined only to the writ petitioners [see condition No. 3(a) and (b)].

40. Second, so far as the cases relating to second category of landowners, who had not challenged the acquisition proceedings (like the appellants herein) were concerned, the High Court dealt with their cases separately and accordingly issued directions which are contained in condition No. 4(a) and (b) of the order.

41. In condition No. 4(a) and (b), the High Court, in express terms, directed the Authority to take a decision on the question as to whether the Authority is willing to extend the benefit of the directions contained in condition No. 3(a) and (b) also to second category of landowners or not.

42. In other words, the High Court, in express terms, declined to extend the grant of any relief to the landowners, who had not filed the writ petitions and instead directed the Authority to decide at their end as to whether they are willing to extend the same benefit to other similarly situated landowners or not.

43. It is, therefore, clear that it was left to the discretion of the Authority to decide the question as to whether they are willing to extend the aforesaid benefits to second category of landowners or not.

44. Third, as mentioned supra, the Authority, in compliance with the directions, decided to extend the benefit in relation to payment of an additional compensation at the rate of 64.70% and accordingly it was paid also. On the other hand, the Authority declined to extend the benefit in relation to allotment of developed abadi plot to such landowners.

45. Fourth, it is not in dispute, being a matter of record, that when the Authority failed to extend the benefit regarding allotment of additional abadi plot to even those landowners in whose favour the directions were issued by the High Court in the case of Gajraj (supra) and by this Court in Savitri Devi (supra), the landowners filed the contempt petition against the Authority complaining of non-compliance of the directions of this Court but this Court dismissed the contempt petition holding therein that no case of non-compliance was made out.

46. In our view, the appellants have neither any legal right and nor any factual foundation to claim the relief of allotment of additional developed abadi plot. In order to claim any mandamus against the State for claiming such relief, it is necessary for the writ petitioners to plead and prove their legal right, which should be founded on undisputed facts against the State. It is only then the mandamus can be issued against the State for the benefit of writ petitioners. Such is not the case here.

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48. One cannot dispute that the Act does not provide for grant of such reliefs to the landowners under the Act. Similarly, there is no dispute that the State paid all statutory compensation, which is payable under the Act, to every landowner. Not only that every landowner also got additional compensation at the rate of 64.70% over and above what was payable to them under the Act.

49. The reliefs in the case of Gajraj (supra) were granted by the High Court by exercising extraordinary jurisdiction under Article 226 of the Constitution and keeping in view the peculiar facts and circumstances arising in the case at hand. They were confined only to the landowners, who had filed the writ petitions. Even this Court in Savitri Devi's case (supra) held that the directions given be not treated as precedent for being adopted to other cases in future and they be treated as confined to that case only.

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52. In our opinion, therefore, there is no case made out by the appellants for grant of any relief much less the relief of allotment of additional developed abadi plot. If we entertain the appellants' plea for granting them the relief then it would amount to passing an order contrary to this Court's directions contained in para 50 of the order passed in Savitri Devi's case (supra)."

12. In a similar set of facts in the case of Mange and others Vs. State of U.P. and others4,the claim raised by the petitioners whose lands were acquired under notifications which were subject matter of challenge in the writ petitions decided along with the case of Gajraj Singh and others but the petitioners themselves had not challenged the acquisition proceedings, were rejected and the decision taken by the respondent authorities not to allot abadi plot to such persons, was not interfered with. The observations made in the judgment are as follows :-

"13. Thus, we are of the opinion that the ratio decendi of the Full Bench cannot be applied to similarly situated persons. The said benefit given by the Full Bench cannot be extended to the petitioners, even though they may be similarly situated and their land had been acquired under the same notification.

14. We are of the view that the action of the respondents in not giving additional developed abadi land to the petitioners is neither arbitrary nor discriminatory, especially when there is no evidence to dispute the fact that the respondents have no developed land with them for allotment."

13. The question as to whether the benefit of the directions issued by the Full Bench in the case of Gajraj Singh and others for providing additional compensation to the extent of 64.70% and developed abadi plot to the extent of 10% of the land acquired was liable to be extended to such tenure holders also whose lands were not acquired in terms of the notifications which were under challenge in the case of Gajraj Singh and others, has been considered by a coordinate Division Bench of this Court in the case of Smt. Rameshwari and 3 others Vs. State of U.P. and 2 others5 and in terms of judgment dated 3.5.2017, it has been held as follows :-

"A perusal of the Full Bench judgement in the case of Gajraj Singh (Supra) goes to show that in order to save the acquisition proceedings, direction for payment of additional compensation and allotment of developed abadi plot was issued in peculiar facts and circumstances, particularly, the fact that extensive development had taken place even though the Full Bench found that opportunity to file objection under Section 5A Act had been wrongly denied to the tenure holders. However, the benefit extended to the land owners in lieu of saving the acquisition proceedings, even though the same were found to be illegal and liable to be quashed, was restricted to the acquisition proceedings challenged before it.

However, the question of extending the benefits of additional compensation and allotment of developed abadi plot to such land holders whose challenge to the land acquisition notification already stood dismissed or such land holders who did not approach this Court challenging the land acquisition notification though the said notifications were subject matter of challenge before the Full Bench, was left open to be decided by the authority. As already noticed above, in pursuance of the aforesaid directions, the authority took a decision in its Board meeting for making payment of additional compensation to the extent of 64.7% to all land holders whether they had put challenge to the land acquisition notifications or not. However, in respect of allotment of abadi plot to the extent of 10%, the authority took a decision not to extend the benefit to such land holders who had not approached the writ court and had not questioned the acquisition proceedings.

In the case in hand, the petitioners' land was acquired by means of notification dated 09.09.1997. Equally admitted fact is that the petitioners accepted the award and did not come forward to challenge the land acquisition proceedings. Not only that, notification dated 9.9.2017 whereunder an area 1275-18-18 including Gata no. 582 area 6-5-13, 538 area 0-15-6, 609 area 1-2-12 and 615 area 9-10-10 of the petitioners situate at village Tugalpur was acquired was not subject of matter of challenge before the Full Bench.

In view of above facts and discussions, it is clear that the relief which was granted by the Full Bench in the case of Gajraj Singh (Supra) affirmed by the Hon'ble Apex Court in the case of Savitri Devi (Supra) cannot be made applicable to the acquisition proceedings which were not assailed and were not subject matter of adjudication before the Full Bench in the case of Gajraj Singh (Supra). Thus, we are of the considered opinion that the ratio dicendi of the Full Bench does not stand attracted in the case of the petitioners and they cannot claim parity with those tenure holders who were before the Full Bench in the case of Gajraj Singh (Supra). The petitioners are thus not entitled to the relief claimed in this petition. The impugned order therefore, does not suffer from any infirmity requiring any interference by this Court under Article 226 of the Constitution of India.

Writ petition fails and accordingly stands dismissed."

14. The facts of the present case are similar to the case of Smt. Rameshwari and others. Moreover, the directions issued by the Full Bench in the case of Gajraj Singh and others under para 482 (4) in terms of which the Authority was to take a decision as to whether benefit of additional compensation and allotment of abadi plot to the extent of 10% was to be given, was confined to those land holders whose writ petitions challenging the notifications had been dismissed earlier and to those who had not approached the court to challenge the notifications which were subject matter of challenge in the writ petitions decided along with the case of Gajraj Singh and others. The directions under para 482 (4) were not in respect of those persons such as the petitioners in the present case whose land had been acquired in terms of notifications which were not subject matter of challenge in the case of Gajraj Singh and others and connected matters.

15. For the aforementioned reasons the petitioners are not entitled for the relief prayed for.

16. The writ petition lacks merit and is, accordingly, dismissed.

Order Date :- 12.3.2019

Pratima

(Dr. Y.K.Srivastava,J.) (Pankaj Kumar Jaiswal,J.)