Shyoraj Singh And Another vs State Of U.P. And 2 Others
2021 Latest Caselaw 11470 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 

 
Chief Justice's Court
 
Additional Cause List-I
 
Serial No. 2
 

 
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
 
***
 
WRIT - C No. - 23806 of 2021
 

 

 
Reserved on: November 25, 2021
 
Delivered on: December 14, 2021
 

 
Shyoraj Singh and another 	    		                          ...Petitioners
 

 
	Through:-   Mr. Gautam Kumar, Advocate 
 

 
v/s
 
State of U.P. and others 						   ...Respondents							
 
Through:-     Mr. Ramanand Pandey, 
 
		 Additional Chief Standing Counsel
 

 

 
Coram:  HON'BLE RAJESH BINDAL, CHIEF JUSTICE
 
	     HON'BLE PIYUSH AGRAWAL, JUDGE
 

 

 
ORDER

RAJESH BINDAL, C.J.

1. The present petition has been filed by the petitioners impugning the notice dated August 10, 2021 issued by U.P. State Industrial Development Corporation (hereinafter referred to as "the Corporation") directing the petitioners to remove the unauthorized construction raised on the land which was already allotted to an industrial unit, otherwise action was to be taken against the petitioners in accordance with law. Further prayer has been made seeking a direction to the respondent no. 1 to decide the application filed by petitioners under Section 48 of the Land Acquisition Act, 1894 (hereinafter referred to as "1894 Act").

2. Learned counsel for the petitioners submitted that the land was sought to be acquired for the use by Corporation. Emergency provision of Section 17 of the 1894 Act were invoked. Notification under Section 6 was issued on April 15, 1986. Thereafter award was passed by Land Acquisition Officer (hereinafter referred to as "LAO"). The possession of the land was never taken by the State. The petitioners have raised construction thereon where cow-shed and a school is running with about 400 students studying therein. The project for which the land was acquired has already been completed and the land in question is lying surplus.

3. He further referred to Section 17 of U.P. Urban Planning and Development Act, 1973 (hereinafter referred to as "1973 Act") to state that in case acquired land is not utilized for a period of five years, the landowner can seek to return the same back to him. In the case in hand, for the last about three decades land in question has not been utilized, hence, petitioners have a right to get their land back. They are ready to deposit the compensation back.

4. Though not pleaded in the writ petition, the learned counsel for the petitioners also sought to invoke the provisions of Section 101 of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as "2013 Act") to submit that even in terms of the aforesaid provision, land in question deserves to be returned back to the petitioners as the land was not utilized within five years of acquisition. They will suffer irreparable loss. As regards allotment of the land to any other person, as has been mentioned in the show cause notice, the argument raised is that neither any lease-deed has been executed by the Corporation in favour of the allottee nor any construction has been raised by him, hence, otherwise also that allotment has to be cancelled.

5. He further submitted that provisions of Section 17 of the 1894 Act were wrongly invoked for the reason that acquisition in question was merely for development of an industrial estate. In support of the argument, reliance is placed upon the judgment of Hon'ble Supreme Court in Om Prakash and another Vs. State of U.P. and others (1998) 6 SCC 1.

6. On the other hand, learned counsel for the State submitted that the petitioners do not have any right to claim that the land, which already stood acquired and for which the compensation has admittedly been received by the petitioners, be returned back to them. The acquisition proceedings having been completed, the petitioners do not have any right to invoke Section 48 of 1894 Act. The possession of the land was taken immediately after acquisition and handed over to the Corporation, which had even carved out plots and sold to number of allottees. Merely because on some portion of the land the petitioners have made certain construction after encroaching upon the same, will not entitle them to claim its release from acquisition.

7. The provisions of Section 17 of the 1973 Act will not come to the rescue the petitioners for the reason that the land in question was utilized immediately after acquisition as it was transferred to the Corporation. The development activities started immediately and the industrial estate was developed.

8. The provisions of Section 101 of the 2013 Act are also not applicable to the case in hand as the acquisition in question is not under the aforesaid Act. It is further submitted that it is too late to allow the petitioners to challenge the acquisition which already stood completed way back in the year 1987-88 that too after receiving compensation alleging that provisions of Section 17 of 1894 Act were wrongly invoked. The application under Section 48 of 1894 Act was filed by the petitioners only after notice was issued by the Corporation to the petitioners for removal of encroachment made on the part of the land. The petitioners otherwise also cannot invoke the provisions of Section 48 of 1894 Act as the possession of the land in question was taken immediately after acquisition and the same was transferred to the Corporation, which in turn had even allotted the plots carved out thereon. Any construction raised by the petitioners was unauthorized.

9. In response, learned counsel for the petitioners submitted that even as per the notice issued to the petitioners, the allotment of plot was made by Corporation in the year 2007. It was much beyond five years period as provided in Section 17 of the 1973 Act and Section 101 of the 2013 Act. Hence, the land was not utilized before that.

10. We have heard learned counsel for parties and perused the relevant record.

11. Section 48 of the Land Acquisition Act, 1894, on which reliance was placed by the learned counsel for the petitioners, is extracted below:

"48. Completion of acquisition not compulsory, but compensation to be awarded when not completed.- (1) Except in the case provided for in section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken.

(2) Whenever the Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings thereunder, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land.

(3) The provisions of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this section."

12. Section 17 of the U.P. Urban Planning and Development Act, 1973 is reproduced as under:

"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 re-payment of the charges which were incurred in connection with the acquisition together with interest at the rate of twelve per cent 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 or the local Authority of the compensation awarded under that Act and of the charges incurred by the Government in connection with the acquisition."

13. Section 101 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 reads as under:

"101. Return of unutilised land.- When any land acquired under this Act remains unutilised for a period of five years from the date of taking over the possession, the same shall be returned to the original owner or owners or their legal heirs, as the case may be, or to the Land Bank of the appropriate Government by reversion in the manner as may be prescribed by the appropriate Government."

14. The basic facts, which are not in dispute in the present petition, are that notification under Section 4 of 1894 Act, was issued on April 11, 1986. After invoking the provisions of Section 17 of 1894 Act dispensing with the filing of the objections under Section 5-A thereof, notification under Section 6 of the 1894 Act was issued on April 15, 1986. The award was pronounced by the LAO immediately thereafter.

15. It remained undisputed that the petitioners' land was acquired and they had also received the compensation in terms of their entitlement. The stand taken by the respondents is that immediately after acquisition process of the land was completed, the possession thereof was taken from the landowners and it was handed over to the Corporation for development as an industrial estate. In fact, the industrial estate stands developed and the plots have been allotted to various persons where industrial units have also been setup. Even in the case of the petitioners, in the show-cause notice issued to them for removal of unauthorized construction, it has been stated that a plot carved out thereon has been allotted.

16. As far as the argument raised by learned counsel for the petitioners for invoking Section 17 of the 1973 Act is concerned, the same is to be noticed and rejected. A perusal of Section 17 of the 1973 Act shows that in case the acquired land is not utilized for a period of five years from the date of its acquisition, the land owner can apply to the State for restoration thereof. If the State Government is satisfied that the land had not been utilized for a period of five years for the purpose it was acquired, it can order restoration thereof to the landowners on re-payment of the amount incurred for acquisition along with interest thereon including the development charges, if any.

17. In the case in hand, the definite stand of the State on the record is that immediately after acquisition of the land, which was for development of an industrial estate by the Corporation, the possession thereof was taken and handed over to the Corporation which had even carved out the plots thereon and industrial estate stood developed. Number of industrial units are operating. A perusal of notice dated August 10, 2021, issued to the petitioners for removal of the unauthorized construction also establishes this fact. It is mentioned therein that the plot on which the petitioners had raised unauthorized construction is part of plot allotted to Smt. Amarjeet Kaur way back on September 28, 2007, hence the claim that petitioners are entitled to invoke Section 17 of the 1973 Act for restoration of the land to them on the ground that the same has not been utilized is totally misconceived and hence, deserves to be rejected.

18. As far as challenge to the acquisition of land at this stage on the ground that invocation of Section 17 of the 1894 Act was illegal, the argument is to be noticed and rejected for the reason that process of acquisition was completed way back in the year 1987-88. The petitioners have even received the compensation and did not raise any objection immediately thereafter. They cannot be permitted to challenge the acquisition three decades after the process of acquisition was completed.

19. Section 48 of the 1894 Act provides that the Government is at liberty to withdraw from acquisition any land of which possession has not been taken. In the case in hand, the petitioners filed application under Section 48 of the 1894 Act after they were issued notice by the Corporation for removal of unauthorized construction on the acquired land for which even they had received the compensation. The case of the petitioners will not fall within the scope of Section 48 of the 1894 Act, for the reason that it is the definite case of the State and is even evident from the material on record that the possession of the land was taken immediately after acquisition and the State had transferred the same to the Corporation, which had even developed an industrial estate thereon. The part of the land, which is in possession of the petitioners, is forming part of a plot which stood allotted to Amarjeet Kaur, way back in 2007. Hence, no direction can be issued to the State even for consideration of the application filed by the petitioners invoking Section 48 of the 1894 Act.

20. The issue as to what is meant by "possession of the land by the State after its acquisition" has also been considered by Constitution Bench of Hon'ble Supreme Court in Indore Development Authority Vs. Manoharlal and others AIR 2020 SC 1496. It is opined therein that after the acquisition of land and passing of award, the land vests in the State free from all encumbrances. The vesting of land with the State is with possession. Any person retaining the possession thereafter has to be treated trespasser. When large chunk of land is acquired, the State is not supposed to put some person or police force to retain the possession and start cultivating on the land till it is utilized. The Government is also not supposed to start residing or physically occupying the same once process of the acquisition is complete. If after the process of acquisition is complete and land vest in the State free from all encumbrances with possession, any person retaining the land or any re-entry made by any person is nothing else but trespass on the State land. Relevant paragraphs 244, 245 and 256 are extracted below:

"244. Section 16 of the Act of 1894 provided that possession of land may be taken by the State Government after passing of an award and thereupon land vest free from all encumbrances in the State Government. Similar are the provisions made in the case of urgency in Section 17(1). The word "possession" has been used in the Act of 1894, whereas in Section 24(2) of Act of 2013, the expression "physical possession" is used. It is submitted that drawing of panchnama for taking over the possession is not enough when the actual physical possession remained with the landowner and Section 24(2) requires actual physical possession to be taken, not the possession in any other form. When the State has acquired the land and award has been passed, land vests in the State Government free from all encumbrances. The act of vesting of the land in the State is with possession, any person retaining the possession, thereafter, has to be treated as trespasser and has no right to possess the land which vests in the State free from all encumbrances.

245. The question which arises whether there is any difference between taking possession under the Act of 1894 and the expression "physical possession" used in Section 24(2). As a matter of fact, what was contemplated under the Act of 1894, by taking the possession meant only physical possession of the land. Taking over the possession under the Act of 2013 always amounted to taking over physical possession of the land. When the State Government acquires land and drawns up a memorandum of taking possession, that amounts to taking the physical possession of the land. On the large chunk of property or otherwise which is acquired, the Government is not supposed to put some other person or the police force in possession to retain it and start cultivating it till the land is used by it for the purpose for which it has been acquired. The Government is not supposed to start residing or to physically occupy it once possession has been taken by drawing the inquest proceedings for obtaining possession thereof. Thereafter, if any further retaining of land or any re-entry is made on the land or someone starts cultivation on the open land or starts residing in the outhouse, etc., is deemed to be the trespasser on land which in possession of the State. The possession of trespasser always inures for the benefit of the real owner that is the State Government in the case.

xxxx

256. Thus, it is apparent that vesting is with possession and the statute has provided under Sections 16 and 17 of the Act of 1894 that once possession is taken, absolute vesting occurred. It is an indefeasible right and vesting is with possession thereafter. The vesting specified under Section 16, takes place after various steps, such as, notification under Section 4, declaration under Section 6, notice under Section 9, award under Section 11 and then possession. The statutory provision of vesting of property absolutely free from all encumbrances has to be accorded full effect. Not only the possession vests in the State but all other encumbrances are also removed forthwith. The title of the landholder ceases and the state becomes the absolute owner and in possession of the property. Thereafter there is no control of the landowner over the property. He cannot have any animus to take the property and to control it. Even if he has retained the possession or otherwise trespassed upon it after possession has been taken by the State, he is a trespasser and such possession of trespasser enures for his benefit and on behalf of the owner." (emphasis supplied)

21. Keeping in view the above enunciation of law by Hon'ble the Supreme Court in Indore Development Authority's case (supra), in the case in hand on the undisputed facts on record it can safely be opined that in the present case the acquisition proceedings stood completed. The award was announced, the compensation was received by petitioners, hence the land vested in the State with possession, free from all encumbrance. In case, the petitioners have raised any construction, they are the trespassers and are to be dealt with as such. Once the possession of the land already stood vested in the State, no question arises for invocation of Section 48 of 1894 Act.

22. Though it is not pleaded in the petition, however, at the time of argument, learned counsel for the petitioners sought to rely upon the provision of Section 101 of the 2013 Act for return of the land to the petitioners, which according to them had not been utilized after acquisition. As the argument is legal, we deem it appropriate to deal with the same.

23. A bare perusal of Section 101 of the 2013 Act shows that the same can be invoked or the power thereunder can be exercised by the State if the acquisition had been carried out under the provisions of the 2013 Act. In the case in hand, it is not the case of the petitioners that acquisition of the land is under the provisions of the 2013 Act. Rather the acquisition process was completed way back in the year 1987-88 under the provisions of the 1894 Act. Hence, the provisions of Section 101 of the 2013 Act will have no application in the case in hand. The issue was dealt with by a Constitution Bench of Hon'ble Supreme Court in Indore Development Authority's case (supra). Para 361 thereof, which deals with the situation, is extracted below:

"361. Section 24 deals with lapse of acquisition. Section 101 deals with the return of unutilized land. Section 101 cannot be said to be applicable to an acquisition made under the Act of 1894. The provision of lapse has to be considered on its own strength and not by virtue of Section 101 though the spirit is to give back the land to the original owner or owners or the legal heirs or to the Land Bank. Return of lands is with respect to all lands acquired under the Act of 2013 as the expression used in the opening part is "When any land, acquired under this Act remains unutilized". Lapse, on the other hand, occurs when the State does not take steps in terms of Section 24(2). The provisions of Section 101 cannot be applied to the acquisitions made under the Act of 1894. Thus, no such sustenance can be drawn from the provisions contained in Section 101 of the Act of 2013. Five years' logic has been carried into effect for the purpose of lapse and not for the purpose of returning the land remaining unutilized under Section 24(2)."

24. In view of the aforesaid view expressed by the Constitution Bench of Hon'ble Supreme Court in Indore Development Authority's case (supra), even the argument raised for release of the land by invoking Section 101 of 2013 Act also deserves to be rejected as acquisition in question is not under the 2013 Act.

25. For the reasons mentioned above, we do not find any merit in the present petition. The same is, accordingly, dismissed.

(Piyush Agrawal)                 (Rajesh Bindal)
 
Judge                       Chief Justice
 
Allahabad
 
December 14, 2021
 
P. Sri. 	    
 

 
		
 
		
 
		Whether the order is speaking 	:  	Yes/No
 
		Whether the order is reportable	:         √Yes/No