Smt Prakashi Devi vs State Of U.P. And 2 Others
2021 Latest Caselaw 1146 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 21
 

 
Case :- WRIT - C No. - 27560 of 2020
 

 
Petitioner :- Smt Prakashi Devi
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Vinod Kumar Singh
 
Counsel for Respondent :- C.S.C.,Anjali Upadhya,Ramendra Pratap Singh
 

 
Hon'ble Mahesh Chandra Tripathi,J.

Hon'ble Sanjay Kumar Pachori,J.

Heard Shri Vinod Kumar Singh, learned counsel for the petitioner; Sri Sanjay Kumar Singh, learned Addl. Chief Standing Counsel as well as Shri Devesh Vikram, learned Standing Counsel for State respondents and Ms. Anjali Upadhya, learned counsel for the respondent no. 3 i.e. Greater New Okhla Industrial Development Authority, Gautam Budh Nagar through its Executive Officer/Chairman.

Present writ petition under Art.226 of the Constitution of India has been preferred feeling aggrieved with the rejection of the application moved by the petitioner under Section 48 of Land Acquisition Act, 1894 (in short "the Act") by the order impugned dated 1.1.2018 passed by first respondent holding that the land has already been vested in the State pursuant to land acquisition proceeding under the Act, therefore, no benefit under Section 48 (1) can be given to the petitioner by releasing said land in her favour. The petitioner has also challenged the acquisition proceeding dated 26.5.2009 as well as notification dated 22.6.2009. The petitioner has also prayed for direction to the respondents not to dispossess the petitioner from the land in question and further to release the land from acquisition proceeding and to sanction the compensation as per the new rules.

Brief facts giving rise to present petition are that the petitioner Smt. Prakashi Devi is the owner of the land bearing Khata No.158, Khasra No.480, Area 2.0728 hect. Village Khodna Khurd in which the house of the petitioner has been constructed comprising four rooms. In the proceeding under Section 48 (1) of the Act the third respondent has taken a plea that for acquiring 201.7386 hect. land for planned development in Village Khodna Khurd, Tehsil Dadri, Distt. Gautam Budh Nagar a notification under Section 4 (1)/17 of the Act was issued on 25.5.2009 and a notification under Section 6/17 was issued on 22.6.2009. The possession was taken by the Collector (Land Acquisition). After taking possession the Collector (Land Acquisition) handed over the same to the authority on 14.09.2009 includingKhasra No.480M area 0.8728 hect. In this regard award was also made on 14.9.2011. While deciding the application in question revenue record were also seen and from which it transpired that plot no.480M is recorded in favour of Smt. Prakashi wife of Teekam Singh resident of Afzalpur Siti; Smt. Sheela Devi wife of Dharmpal resident of Bahrampur, Meerut; Shripal & Rakesh sons of Sitaram; Mamchand & Lachhu sons of Ram Narayan; Lakhiram son of Chandra; Ishwar son of Yadram; Dheeraj, Brahm Singh, Omveer sons of Bhram Singh; Smt. Shakuntala Devi wife of Jai Prakash; Smt. Murti Devi wife of Yadram as co-tenure holder. The award under Section 11 (1) was made on 14.9.2011. It is also reflected that out of 2.0728 hect., 1.200 hect. was left over on account of existing abadi, which were not required for the planned development. Only 0.8728 hect. land has been acquired for planned development and more than 80% tenure holders have also accepted the compensation under the provisions of Uttar Pradesh Land Acquisition (Determination of Compensation and Declaration of Award of Agreement) Rules, 1997 (Karar Niyamawali).

It has been pressed that the said land was acquired by Greater Noida but no consent was taken from the petitioner, whereas, the land in question is situated in abadi in which permanent construction of house surrounded by the boundary wall is situated. Learned counsel for the petitioner in this backdrop has placed reliance on the provisions contained under Section 24 (2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (in short "the Act of 2013") and it is stated that as per the mandate of Section 24 (2) the acquisition proceeding, which was initiated in the year 2009 has lapsed.

Per contra, Shri Sanjay Kumar Singh, learned Addl. Chief Standing Counsel has vehemently opposed the writ petition and submitted that at this belated stage no reprieved can be extended. The order impugned has been passed on 1.1.2018 and the present writ petition has been preferred with inordinate delay and as such liable to be dismissed on this ground alone. Once the land is vested in the State free from all encumbrances, the writ petition is liable to be dismissed on the ground of delay and laches.

Ms. Anjali Upadhya, learned counsel for the authority has placed reliance on the judgments passed by this Court in Mahaveer v. State of U.P. & Ors., 2018 (6) ADJ 529 (DB); Rajendra Devi & Ors. v. State of U.P. & Ors., 2014 (10) ADJ 533 (DB) and Asha Ram v. Pramukh Sachiv Avas Evam Shastri Niy. Lko. & Ors., 2014 (2) ADJ 506 (DB). She has submitted that the State Government rightly rejected the claim of the petitioner after appreciating the correct facts and rightly appreciated the correct proposition of law, the same is sustainable under the present facts and circumstances of the case and liable to be upheld by this Court.

Heard rival submissions, perused the record and respectfully considered the judgments cited at Bar.

We find that vague and evasive pleadings have been set up and it is claimed that from the date of notification of the land under Section 6/17 of the Act dated 22.6.2009 the petitioner continued to be in possession and the possession of the aforesaid land has never been transferred to Greater Noida. The State Government while rejecting the claim had clearly mentioned that the actually survey was conducted prior to the preliminary notification under Section 4/17 and if there were some actual construction or abadi over the plots under the acquisition the same had been exempted from the acquisition and in the present matter the possession had been handed over to the authority on 14.09.2009 and once the possession had been taken over by the competent authority the same is being vested in the State free from all encumbrances as per the provision of section 16 of the Land Acquisition Act, and the land in question cannot be divested.

We may point out here that the present acquisition proceeding relates to the year 2009 and we are in 2021. There is no dispute with regard to settled position of law that once land is acquired and mandatory requirements are complied with including possession having been taken, the land vests in the State Government free from all encumbrances. Even if some unutilised land remains, it cannot be re-conveyed or re-assigned to the erstwhile owner by invoking the provisions of the Act. Hon'ble the Apex Court in the case of Government of A.P. & Anr. v. Syed Akbar, AIR 2005 SC 492 held:-

"10. It is neither debated nor disputed as regards the valid acquisition of the land in question under the provisions of the Land Acquisition Act and the possession of the land had been taken. By virtue of Section 16 of the Land Acquisition Act, the acquired land has vested absolutely in the Government free from all encumbrances. Under Section 48 of the Land Acquisition Act, Government could withdraw from the acquisition of any land of which possession has not been taken. In the instant case, even under Section 48, the Government could not withdraw from acquisition or to reconvey the said land to the respondent as the possession of the land had already been taken. The position of law is well settled. In State of Kerala and Ors. v. M. Bhaskaran Pillai & Anr. (1997) 5 SCC 432 para 4 of the said judgment reads: (SCC p. 433)

"4. In view of the admitted position that the land in question was acquired under the Land Acquisition Act, 1894 by operation of Section 16 of the Land Acquisition Act, it stood vested in the State free from all encumbrances. The question emerges whether the Government can assign the land to the erstwhile owners? It is settled law that if the land is acquired for a public purpose, after the public purpose was achieved, the rest of the land could be used for any other public purpose. In case there is no other public purpose for which the land is needed, then instead of disposal by way of sale to the erstwhile owner, the land should be put to public auction and the amount fetched in the public auction can be better utilised for the public purpose envisaged in the Directive Principles of the Constitution. In the present case, what we find is that the executive order is not in consonance with the provision of the Act and is, therefore, invalid. Under these circumstances, the Division Bench is well justified in declaring the executive order as invalid. Whatever assignment is made, should be for a public purpose. Otherwise, the land of the Government should be sold only through the public auctions so that the public also gets benefited by getting a higher value."

In the case of Satendra Prasad Jain & Ors. vs. State of U.P. and Ors., AIR 1993 SC 2517, a 3-Judge Bench of Hon'ble Apex Court after considering various provisions including Section 17 of the Act observed as under:

"15. Ordinarily, the Government can take possession of the land proposed to be acquired only after an award of compensation in respect thereof has been made under Section 11. Upon the taking of possession the land vests in the Government, that is to say, the owner of the land loses to the Government the title to it. This is what Section 16 states. The provisions of Section 11-A are intended to benefit the land owner and ensure that the award is made within a period of two years from the date of the Section 6 declaration. In the ordinary case, therefore, when Government fails to make an award within two years of the declaration under Section 6, the land has still not vested in the Government and its title remains with the owner, the acquisition proceedings are still pending and, by virtue of the provisions of Section 11-A, lapse. When Section 17(1) is applied by reason of urgency, Government takes possession of the land prior to the making of the award under Section 11 and thereupon the owner is divested of the title to the land which is vested in the Government. Section 17(1) states so in unmistakable terms. Clearly, Section 11-A can have no application to cases of acquisitions under Section 17 because the lands have already vested in the Government and there is no provision in the said Act by which land statutorily vested in the Government can revert to the owner."

A Division Bench of this Court in Asha Ram (Supra) has considered the scope and effect of Section 48 of the Act and held that once possession of land has been taken, land, subject to acquisition, cannot be released any further in favour of tenure holders.

In case of V. Chandrasekaran and Anr. Vs. The Administrative Officer and Ors., Civil Appeal No.6342-6343 of 2012, the Hon'le Apex Court has made following observation in paragraph nos. 16, 17, 18, 21, 22, which is quoted below:-

"16. It is a settled legal proposition, that once the land is vested in the State, free from all encumbrances, it cannot be divested and proceedings under the Act would not lapse, even if an award is not made within the statutorily stipulated period. (Vide: Avadh Behari Yadav v. State of Bihar and. Ors. MANU/SC/002/1996: (1995) 6 SCC 31; U.P. Jal Nigam v. Kalra Properties (P) Ltd. (Supra); Allahabad Development Authority v. Nasiruzzaman and Ors. MANU/SC/1269/1996: (1996) 6 SCC 424, M. Ramalinga Thevar v. State of Tamil Nadu and Ors. MANU/SC/0291/2000: (2000) 4 SCC 322; and Government of Andhra Pradesh v. Syed Akbar and Ors. MANU/SC/0987/2004: AIR 2005 SC 492).

17. The said land, once acquired, cannot be restored to the tenure holders/persons-interested, even if it is not used for the purpose for which it was so acquired, or for any other purpose either. The proceedings cannot be withdrawn/abandoned under the provisions of Section 48 of the Act, or Under Section 21 of the General Clauses Act, once the possession of the land has been taken and the land vests in the State, free from all encumbrances. (Vide: State of Madhya Pradesh v. V.P. Sharma MANU/SC/0200/1966: AIR 1966 SC 1593; Lt. Governor of Himachal Pradesh and Anr. v. Shri Avinash Sharma MANU/SC/0417/1970: AIR 1970 SC 1576; Satendra Prasad Jain v. State of U.P. and Ors. MANU/SC/0392/1993 AIR 1993 SC 2517; Rajasthan Housing Board and Ors. v. Shri Kishan and Ors. MANU/SC/0466/1993: (1993) 2 SCC 84 and Dedicated Freight Corridor Corporation of India v. Subodh Singh and Ors. MANU/SC/0268/2011: (2011) 11 SCC 100).

18. The meaning of the word 'vesting', has been considered by this Court time and again. In Fruit and Vegetable Merchants Union v. The Delhi Improvement Trust MANU/SC/0082/1956: AIR 1957 SC 344, this Court held that the meaning of word 'vesting' varies as per the context of the Statute, under which the property vests. So far as the vesting Under Sections 16 and 17 of the Act is concerned, the Court held as under.-

In the cases contemplated by Sections 16 and 17, the property acquired becomes the property of Government without any condition or; limitations either as to title or possession. The legislature has made it clear that vesting of the property is not for any limited purpose or limited duration.

21. In Government of Andhra Pradesh and Anr. v. Syed Akbar (Supra), this Court considered this very issue and held that, once the land has vested in the State, it can neither be divested, by virtue of Section 48 of the Act, nor can it be reconveyed to the persons-interested/tenure holders, and that therefore, the question of restitution of possession to the tenure holder, does not arise. (See also: Pratap v. State of Rajasthan MANU/SC/1101/1996: AIR 1996 SC 1296; Chandragaudaj Ramgonda Patil v. State of Maharashtra MANU/SC/1264/1996: (1996) 6 SCC 405; State of Kerala and Ors. v. M. Bhaskaran Pillai and Anr. MANU/SC/0731/1997: AIR 1997 SC 2703; Printers (Mysore). Ltd. v. M.A. Rasheed and Ors. MANU/SC/0307/2004: (2004) 4 SCC 460; Bangalore Development Authority v. R. Hanumaiah MANU/SC/0988/2005: (2005) 12 SCC 508; and Delhi Airtech Services (P) Ltd. and Anr. v. State of U.P. and Anr. MANU/SC/0956/2011: (2011) 9 SCC 354).

22. In view of the above, the law can be crystallized to mean, that once the land is acquired and it vests in the State, free from all encumbrances, it is not the concern of the land owner, whether the land is being used for the purpose for which it was acquired or for any other purpose. He becomes persona non-grata once the land vests in the State. He has a right to only receive compensation for the same, unless the acquisition proceeding is itself challenged. The State neither has the requisite power to reconvey the land to the person-interested, nor can such person claim any right of restitution on any ground, whatsoever, unless there is some statutory amendment to this effect."

In view of above exposition of law, we are of the considered opinion that present petition is nothing but clear abuse of process of the Court. As per the report of Stamp Reporter present writ petition has been preferred with inordinate delay of 983 days assailing the validity of the order under Section 48 of the Act seeking recourse to the provisions of Section 48 of the Act and according to our opinion the same is totally misplaced. We may also observe at this stage that the manner, in which relief clause in the present writ petition has been framed, if allowed, it would also amount to nullify the notification of acquisition of 2009. It is also noticeable that though Limitation Act, 1963 does not apply in writ jurisdiction, however, courts have repeatedly emphasized that the doctrine of limitation being based on public policy, principles enshrined therein are applicable to the writ petition and courts have to take notice of limitation which goes to the root of the matter. The unexplained and inordinate delay can be a ground to refuse grant of relief as claimed. We may also record that a Division Bench of this Court in the case of Abdul Salam alias Babu v. State of U.P. & Ors., 2008 (1) AWC 399 has specifically held that once land has been acquired under the provisions of the Act and possession has been taken, no application for release of the acquired land from the acquisition proceeding can be made before the State Government. We are also of the considered opinion that in the facts and circumstances Section 24 (2) of the Act of 2013 would not be attracted, therefore, challenge on the said score cannot be accepted. The said land once acquired cannot be restored to the tenure holders/ person interested. The proceeding cannot be withdrawn/abandoned under the provisions of Section 48 of the Act, once possession of land has been taken way back, thereafter, the land vested in the State absolutely free from all encumbrances.

In the aforesaid facts and circumstances, we are not inclined to interfere in the matter in extraordinary jurisdiction under Art.226 of the Constitution of India. However, if the petitioner has any grievance regarding non-payment of compensation and interest, she may approach to the competent authority regarding her grievances.

The writ petition is dismissed with the observations made as above.

Order Date :- 20.1.2021

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