Vijendra Singh Bhati vs State Of U.P. And 2 Others
2021 Latest Caselaw 1496 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 9
 

 
Case :- WRIT - C No. - 18379 of 2020
 

 
Petitioner :- Vijendra Singh Bhati
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Gautam Kumar
 
Counsel for Respondent :- C.S.C.,Anjali Upadhya,Ramendra Pratap Singh
 

 
Hon'ble Sanjay Yadav,J.

Hon'ble Jayant Banerji,J.

Petitioner claiming to be the co-sharer of the land bearing kh. no. 103 admeasuring 0.9420 situated in the revenue area of village- Tusiyana, District- Gautam Budh Nagar, Uttar Pradesh, vide this writ petition under Article 226 of the Constitution of India, seeks quashment of proceedings initiated by the respondents for acquisition of land/plots of village Tusiyana vide Notification under Section 4 of Land Acquisition Act, 1894, read with Section 17A of the Act issued by the Court proposing to acquire 379.001 hectares of land of the village for planned development in District Gautam Budh Nagar through Greater NOIDA Industrial Development Authority. The quashment of the proceeding is being sought by invoking the provision of Section 11A of the Act.

At the outset, it is submitted by learned counsel for the respondents that the challenge put forth  and the relief sought is no more res integra and has been settled at best by a Full Bench decision of this High Court in Gajraj vs. State of Uttar Pradesh and batch of writ petitions decided on 21.10.2011 (reported in 2011 (11) 1 Allahabad Daily Judgements). It is urged that the judgement of Gajraj (supra) was subject matter of challenge before Hon'ble Supreme Court and has been affirmed by Judgement dated 14.5.2015 reported in Savitri Devi vs. State of Uttar Pradesh and Others and batch of writ petitions; (2015) 7 SCC 21.

It is observed from the decision in Gajraj (supra) that Full Bench Village wise group. That Group 6 related to village Tusiyana. While taking note of facts and respective contention in paragraph 30, reproduced herein below :-

"Writ petitions in Group 6 relate to village Tusiyana. Writ petition No.42324 of 2011, Kunwar Pal Bhati and others vs. State of U.P. and others, is being treated to be the leading writ petition. The petitioners claim to be the bhumidhars of different plots of village in question. Notification under Section 4 of the Act read with Sections 17 (1) and 17 (4) of the Act had been issued on 10.04.2006 by the State Government proposing to acquire 379.001 hectares of land of the village for planned development in district Gautam Budh Nagar through Greater Noida Industrial Development Authority. The petitioners claim to have constructed dwelling units and earning their livelihood by carrying agricultural activities. Notification under Section 6 of the Act was issued on 30.11.2006. Petitioners claim to be in possession of their land and carrying on agricultural activities. It is pleaded that invocation of urgency clause under the provisions of Sections 17 (1) and 17 (4) of the Act was without any basis and without sufficient material. Dispensation of enquiry under Section5A of the Act has been made in routine manner. It is further pleaded by the petitioners that the Authority is calling for negotiation only those persons who have filed writ petition in the High Court. Award under Section 11 of the Act has been issued on 27.04.2010. Counter affidavit has been filed by the Authority stating that possession was taken on two different dates, i.e. 02.02.2007 and 25.03.2008. It is further stated that out of 379.001 Hectares of land, compensation in respect of an area of 260.854 hectare has been disbursed and accepted by the land owners. Out of 970 tenure holders 787 have accepted compensation. Development work has been done in the area and the area has been demarcated as Sector KP-5 and Ecotech-3. The Authority has constructed roads, laid down sewer lines and electricity transmission lines, and made allotment of group housing work. I.T. and Institutional plots have also been allotted between 2007 and 2011. The petitioners have filed rejoinder affidavit, stating that the area acquired in the year 2006 remains vacant. Allotment to certain builders was made in the year 2009 and 2011. It is further pleaded that the petitioners were given assurance that the industries would be set up in their land, under which assumption, the petitioners never approached the court of law and had taken compensation whatever was given to them, since they were under the impression that after establishment of industries, their children would get employment and earn their livelihood. It is further pleaded that industries were established only in the year 1998, and thereafter there is no whisper of any industry being established in the village. It is further stated that the area which has now been demarcated, is for residential colonies to such persons, who would have no concern with the establishment of industry. Now it would be very difficult that any industry would be established, as the Authority itself would not give permission to industries to come up in the residential colonies. Application for intervention has also been filed by the Greater Noida Extension Flat Buyers Welfare Association."

Their lordships framed various issues. Wherein issue No. 10 related to Section 11A as to "whether acquisition under challenge has lapsed under Section 11A of the Act due to non-declaration of the award within two years from the date of publication of the declaration made under Section 6?

This issue was answered in following terms:

"Learned counsel for the petitioners have submitted that after publication of declaration under Section 6 of the Act, in none of the cases award has been made under Section 11 within two years from the date of publication, hence, the entire proceedings for acquisition of the land has lapsed. Section 11 A of the Act is as follows:

11A. Period within which an award shall be made. - (1) The Collector shall make an award under section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse:

Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984 the award shall be made within a period of two years from such commencement.

Learned counsel for the respondents refuting the submission made by counsel for the petitioners contends that in all the acquisitions under challenge Section 17(1) was invoked and the possession was taken of the land after issue of notice under Section 9 and land has vested in the State under Section 17sub Section (1) hence Section 11-A has no application.

Learned counsel for the respondents submitted that Section 11 A applies in the cases where Section 17has not been invoked and in cases where Section 17 has been invoked, there is no applicability of Section 11-A.

Learned counsel for the respondents has placed reliance on the judgments of the Apex Court of 1993 Volume 4 S.C.C. Page 369 Satendra Prasad Jain Vs. State of U.P. and 2011 Volume 5 S.C.C. 394 Banda Development Authority Vs. Motilal Agarwal.

We have considered the submission of the learned counsel for the parties. In Satendra Prasad Jain's case the issue was considered and it was held by the Apex Court that when Section 17 sub Section (1) is applied by reason of urgency, the 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 as laid down in paragraph 15. The said view was reiterated by the Apex Court in Awadh Bihari Yadav and others Vs. State of Bihar and others, 1995, 6 S.C.C. Page 31. The recent judgment of Banda Development Authority (supra) has also occasion to consider the said issue, relying on the decision of Satendra Prasad Jain. The argument on the basis of Section 11-A was repelled. In the present bunch of cases the State Government has invoked urgency clause under Section 17(1) and possession has been taken in all the cases exercising urgency power. The ratio laid down by Satendra Prasad Jain's case is fully attracted and the submission made by the learned counsel for the petitioners on the basis of Section 11-A can not be accepted."

While affirming the judgement in Gajraj (supra) their lordships were pleased to hold -

"62. This special leave petition is preferred against the judgment dated 20.01.2012 passed by the High Court in CMWP No. 3979/2012 which was preferred by the petitioners herein challenging the acquisition of their land. The Government had issued notification under Section 4 read with Section 17(4) on 18.12.2001 and declaration under Section 6 was issued on 30.03.2002.

63. The writ petition for quashing of the aforesaid notification was filed on 05.01.2012 i.e. nearly ten years after the declaration issued under Section 6 of the Act. The High Court vide impugned judgment has dismissed the writ petition on the aforesaid ground of delay and laches. The High Court has also noted that a Full Bench of the said Court, in a bunch of writ petitions with leading case being Writ Petition No. 37443 of 2001 (Gajraj and others v. State of U.P. and others) decided on 21.10.2011, had dismissed all those petitions which were filed belatedly on the ground of inordinate delay and laches. Incidentally, special leave petitions were filed by some of those whose writ petitions were dismissed on the ground of delay and this Court has dismissed those petitions/appeals affirming the said decision.

64. The judgment in Gajraj and others (supra) came to be challenged by the State as well as the land owners. All these petitions/appeals, including the appeals filed by the land owners, have been dismissed by this Court affirming the view taken by the Full Bench in the said case.

65.Accordingly, the present special leave petition also stands dismissed. Special Leave Petition (Civil) No. 9029 of 2015.

66.This special leave petition is preferred against the judgment dated 29.11.2011 passed by the High Court in CMWP No. 68459/2011, which was preferred by the petitioners herein challenging the acquisition of their land. The Government had issued notification under Section 4 read with Section 17(4) on 05.10.2002 and declaration under Section 6 of the Land Acquisition Act was issued on 30.10.2002.

67.The High Court has disposed of the writ petition vide its order dated 29.11.2011 taking note of a Full Bench decision in a bunch of writ petitions with leading case being Writ Petition No. 37443 of 2001 (Gajraj and others v. State of U.P. and others) decided on 21.10.2011. Since counsel for both the parties in the High Court had agreed that the writ petition of the petitioners was also covered by the judgment in Gajraj and others (supra), the High Court has disposed of the writ petition of the petitioners in terms of the direction issued by the Full Bench in the aforesaid case.

68. The judgment in Gajraj and others (supra) came to be challenged by the State as well as the land owners. All these petitions/appeals, including the appeals filed by the land owners, have been dismissed by this Court affirming the view taken by the Full Bench in the said case."

It is further observed that Full Bench dismissed certain petitions relating to villages Nithari, Sadarpur, Khoda, Sultanpur, Chaura Sadatpur and village Alaverdipur were dismissed for inordinate delay and laches (please see paragraph 482:1 of the decision in Gajraj (supra) which has been upheld in Savitri Devi (supra).

24. The High Court discussed the issue of laches and delays under Issue No. 3, as mentioned above, after referring to various judgments of this Court and culling out the principles contained therein on that basis. The High Court accepted the plea of inordinate delay insofar as acquisition of land in respect of village Nithari, Village Chauyra Sadedpur, Village Khoda, Village Sultanpur are concerned. These writ petitions are dismissed on the ground of delay. In respect of other villages, the Court repelled the contention of delay raised by the department, accepting the explanation given by land owners of those villages that they did not oppose the acquisition earlier at the time of issuance of notification as the land was taken for industrial development. However, it is only when these land owners had come to know that instead of developing the land for the purpose for which it was acquired, the acquiring authority had transferred the land to the private persons and builders, that these land owners felt aggrieved and cheated and, therefore, there was sufficient explanation for coming to the Court at a time when these land owners discovered that the acquired land had been transferred to private persons. The Court, therefore, held that such writ petitions were to be entertained on merits, ignoring the delay.

25. Some of the appeals are filed by the land owners in respect of aforesaid villages where their petitions are dismissed on the ground of delay and laches. We are of the opinion that their writ petitions were rightly rejected by the High Court applying the principle of delays and laches. We are, thus, dismissing these appeals, upholding the order of the High Court.

Though it is contended on behalf of the petitioners that the view in Satendra Jain Case : (1993) 4 SCC 369 was doubted in Delhi Airtech Services Private Limited and Another vs. State of Uttar Pradesh and Another : (2011) 9 SCC 354, where one of the Hon'ble Judges (Hon'ble Justice A.K. Ganguly) disagreeing with the proposition that Section 11-A has no affiliation to the acquisition proceedings under the provisions of Section 17 of the Act has led the matter being referred to larger Bench.

It is however noticed that the decision in Delhi AirTech Services Private Limited & another (supra) wherein difference of opinion has occurred was decided on 18.8.2011; whereas Savitri Devi (supra) which affirmed the judgement of Full Bench in Gajraj & others (supra) was decided on 14.5.2015 by a Bench of three Hon'ble Judges.

In view whereof and in absence of any decision by a larger Bench, we are not inclined to differ the matter, as in our opinion, the issue in the present writ petition is squarely covered by the decision by Full Bench in Gajraj and others (supra).

Though at this stage, it is stated on behalf of the petitioner that some petitions of similar nature are pending consideration; however, in our considered opinion, issuing of notices in the writ petition are not binding precedent, more particularly in a case of the present one, wherein the issue is no more res integra.

Consequently, petition fails and is dismissed.

No costs.

 
Order Date :- 25.1.2021
 
Kuldeep
 

 
(Jayant Banerji,J.)                             (Sanjay Yadav, J.)