Vijaypal And 4 Others vs State Of U.P. And 2 Others
2021 Latest Caselaw 6363 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Chief Justice's Court
 

 
Case :- WRIT - C No. - 11445 of 2021
 
Petitioner :- Vijaypal And 4 Others
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Manish Kumar,Manoj Kumar
 
Counsel for Respondent :- C.S.C.,Anjali Upadhya,Ramendra Pratap Singh
 

 
Hon'ble Sanjay Yadav,Chief Justice
 
Hon'ble Prakash Padia,J.

Per Prakash Padia, J.

1. Matter is taken up through video conferencing.

2. The petitioners have preferred the present petition Under Article 226 of the Constitution of India inter-alia with the following prayer:-

"I. Issue a writ, order or direction in the nature of writ of mandamus directing the respondents to release the Gata No. 89/0.560 hectare and 92/0.0492 hectare from the Land Acquisition, Village Thapkhera, Pargana and Tehsil Dadri, District Gautam Buddha Nagar.

II. Issue a writ, order or direction in the nature of writ of mandamus directing the respondent no. 2 District Magistrate, District Gautam Buddha Nagar to decide the application dated 15.02.2021 of the petitioners which is still pending.

III. Issue any other suitable writ, order or direction, which this Hon'ble Court may deem fit and proper in the present circumstances of the case."

3. Facts in brief as contained in the writ petition are that the petitioners are recorded tenure holders in respect of their land situated at Gata No. 89 area 0.0560 hectare and Gata No. 92 area 0.0492 hectare situated in village Thapkhera, Pargana and Tehsil Dadri, District Gautam Buddha Nagar. It is stated in paragraph-5 of the writ petition that applications dated 20.05.2010 and 05.06.2010 were moved by the petitioners before the Chief Executive Officer, Greater Noida, Industrial Development Authority, District Gautam Buddha Nagar/respondent no. 3 stating therein that the petitioners are farmers, the land which was acquired be returned to them as has been returned by the Authority in favour of other similarly situated persons.

4. It is further stated in the writ petition that since no action was taken on the aforesaid representation, a fresh representation was made by the petitioners on 15.02.2021 before the District Magistrate, District Gautam Buddha Nagar with the same prayer.

5. In this view of the matter, it is argued that the land which was acquired by the Authorities be released in favour of the petitioners as has been done in respect of Gata No. 95, 88, 102 and 104. It is further argued that the petitioners belong to jatav caste and they are doing their farming upon this land. It is further argued that except the aforesaid land, the petitioners have no other land for farming as such the land which was acquired by the respondent be released in their favour.

6. In this view of the matter, it is argued that the respondent be directed to decide the representation submitted by the petitioners.

7. On the other hand, it is argued by the counsel for the respondents that the petitioners are not entitled for the relief as prayed for by them in the present petition. It is further argued that the writ petition is misconceived and the same is liable to be dismissed.

8. Heard counsel for the parties and perused the record.

9. It appears from perusal of the record that the land of the petitioners were acquired by the respondents. In order to release the same from Acquisition proceedings, representations were submitted by the petitioners and since no action was taken on the same, the petitioners have preferred the present petition.

10. Nothing has been stated in the entire writ petition that when the notifications were issued by the respondent as per the procedure prescribed under the Land Acquisition Act, 1894. It further reveals from perusal of the record that no action whatsoever has been taken by the petitioners to release their land for more than 10 years from the date of the acquisition of land, in so far as the representations made in the year 2010 are concerned. It is clear from perusal of the remarks made on the same that the same was submitted personally with the authorities but the copies of the receiving were never provided to the petitioners. It further reveals that after more than 10 years a fresh representation was made by the petitioners on 15.02.2021 and immediately thereafter they approach this Court by filing the present petition. Nothing has been stated in the entire writ petition that what action has been taken by the petitioners for about 10 years for releasing of their land.

11. In this view of the matter, the Court is of the opinion that the writ petition is liable to be dismissed on the ground of latches. In so far as the arguments raised by the counsel for the petitioners that the land which was acquired by the authorities along-with the petitioners were released by the Authorities and as such the petitioners are also entitled for the similar benefit, it is clear that if any wrong order was passed earlier, petitioners can't seek the benefit of the same. There is no concept of negative equality under Article 14 of the Constitution of India. The Hon'ble Supreme Court in the case of State of Bihar v Kameshwar Prasad Singh AIR 2000 SC 2306 held that:-

"The concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals other cannot claim the same illegality or irregularity on ground of denial thereof to them. Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar benefits."

12. In this regard the Hon'ble Supreme Court in the case of Gursharan Singh & Ors. v. NDMC & Ors. 1996 (2) SCC page 459 held that citizens have assumed wrong notions regarding the scope of Article 14 of the Constitution which guarantees equality before law to all citizens. Benefits extended to some persons in an irregular or illegal manner cannot be claimed by a citizen on the plea of equality as enshrined in Article 14 of the Constitution by way of writ petition filed in the High Court. The Court observed:

"Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination."

13. Again in the case of Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain & Ors. 1997 (1) SCC page 35 the Hon'ble Supreme Court considered the scope of Article 14 of the Constitution and reiterated its earlier position regarding the concept of equality holding:

"Suffice it to hold that the illegal allotment founded upon ultra vires and illegal policy of allotment made to some other persons wrongly, would not form a legal premise to ensure it to the respondent or to repeat or perpetuate such illegal order, nor could it be legalised. In other words, judicial process cannot be abused to perpetuate the illegalities. Thus considered, we hold that the High Court was clearly in error in directing the appellants to allot the land to the respondents."

14. The similar view was again taken by the Hon'ble Supreme Court in the case of State of Haryana & Ors v. Ram Kumar Mann 1997 (3) SCC page 321 wherein it was observed that:

"The doctrine of discrimination is founded upon existence of an enforceable right. He was discriminated and denied equality as some similarly situated persons had been given the same relief. Article 14 would apply only when invidious discrimination is meted out to equals and similarly circumstanced without any rational basis or relationship in that behalf. The respondent has no right, whatsoever and cannot be given the relief wrongly given to them, i.e., benefit of withdrawal of resignation. The High Court was wholly wrong in reaching the conclusion that there was invidious discrimination. If we cannot allow a wrong to perpetrate, an employee, after committing mis-appropriation of money, is dismissed from service and subsequently that order is withdrawn and he is reinstated into the service. Can a similarly circumstanced person claim equality under Section 14 for reinstatement? The answer is obviously "No". In a converse case, in the first instance, one may be wrong but the wrong order cannot be the foundation for claiming equality for enforcement of the same order. As stated earlier, his right must be founded upon enforceable right to entitle him to the equality treatment for enforcement thereof. A wrong decision by the Government does not give a right to enforce the wrong order and claim parity or equality. Two wrongs can never make a right."

15. A procedure has been prescribed for the withdrawal of the land from the acquisition. It is provided under Sub Section (1) of Section 48 of the Act of 1894 that the Government shall be at liberty to withdraw from the acquisition of any land of which Possession has not been taken. It is further provided under Sub-Section (2) of Section 48 that 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 there under, and shall pay such amount to the person interested, together with all costs.

16. Under Section 48 of the 1894 Act, withdrawal of the land acquisition proceedings was permissible only if the possession has not been taken under Section 16 or 17(1). Section 48 of the Land Acquisition Act, 1894 is extracted hereunder:-

"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 there under, 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 provision of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this section.

17. It has been held by the Hon'ble Supreme Court in large number of decisions that that once possession has been taken and land has not been utilised, there cannot be withdrawal from the acquisition of any land. Land cannot be restituted to the owner after the stage of possession is over.

18. In the case of Chandragauda Ramgonda Patil v. State of Maharashtra, (1996) 6 SCC 405 when restitution of land was sought, on the basis of some Government resolutions, after possession had been taken, following observations were made by the Hon'ble Supreme Court:

"2... Since he had sought enforcement of the said government resolution, the writ petition could not be dismissed on the ground of constructive res judicata. He also seeks to rely upon certain orders said to have been passed by the High Court in conformity with enforcement of the government resolution. We do not think that this Court would be justified in making direction for restitution of the land to the erstwhile owners when the land was taken way back and vested in the Municipality free from all encumbrances. We are not concerned with the validity of the notification in either of the writ petitions. It is axiomatic that the land acquired for a public purpose would be utilised for any other public purpose, though use of it was intended for the original public purpose. It is not intended that any land which remained unutilised, should be restituted to the erstwhile owner to whom adequate compensation was paid according to the market value as on the date of the notification. Under these circumstances, the High Court was well justified in refusing to grant relief in both the writ petitions."

(emphasis supplied)

19. Again, in C. Padma v. State of T.N. reported in (1997) 2 SCC 627, the Hon'ble Supreme Court stated that:

"4. The admitted position is that pursuant to the notification published under Section 4(1) of the Land Acquisition Act, LA (for short "the Act") in GOR No. 1392 Industries dated 17-10-1962, total extent of 6 acres 41 cents of land in Madhavaram Village, Saidapet Taluk, Chengalpattu District in Tamil Nadu was acquired under Chapter VII of the Act for the manufacture of Synthetic Rasina by Tvl. Reichold Chemicals India Ltd., Madras. The acquisition proceedings had become final and possession of the land was taken on 30-4-1964. Pursuant to the agreement executed by the company, it was handed over to Tvl. Simpson and General Finance Co. which is a subsidiary of Reichold Chemicals India Ltd. It would appear that at a request made by the said company, 66 cents of land out of one acre 37 cents in respect of which the appellants originally had ownership, was transferred in GOMs No. 816 Industries dated 24-3-1971 in favour of another subsidiary company. Shri Rama Vilas Service Ltd., the 5th respondent which is also another subsidiary of the Company had requested for two acres 75 cents of land; the same came to be assigned on leasehold basis by the Government after resumption in terms of the agreement in GOMs No. 439 Industries dated 10-5-1985. In GOMs No. 546 Industries dated 30-3-1986, the same came to be approved of. Then the appellants challenged the original GOMs No. 1392 Industries dated 17-10-1962 contending that since the original purpose for which the land was acquired had ceased to be in operation, the appellants are entitled to restitution of the possession taken from them. The learned Single Judge and the Division Bench have held that the acquired land having already vested in the State, after receipt of the compensation by the predecessor-in-title of the appellants, they have no right to challenge the notification. Thus the writ petition and the writ appeal came to be dismissed.

5. Shri G. Ramaswamy, learned Senior Counsel appearing for the appellants, contends that when by operation of Section 44-B read with Section 40 of the Act, the public purpose ceased to be existing, the acquisition became bad and therefore, the GO was bad in law. We find no force in the contention. It is seen that after the notification in GOR 1392 dated 17-10-1962 was published, the acquisition proceeding had become final, the compensation was paid to the appellants' father and thereafter the lands stood vested in the State. In terms of the agreement as contemplated in Chapter VII of the Act, the Company had delivered possession subject to the terms and conditions there under. It is seen that one of the conditions was that on cessation of the public purpose, the lands acquired would be surrendered to the Government. In furtherance thereof, the lands came to be surrendered to the Government for resumption. The lands then were allotted to SRVS Ltd., 5th respondent which is also a subsidiary amalgamated company of the original company. Therefore, the public purpose for which acquisition was made was substituted for another public purpose. Moreover, the question stood finally settled 32 years ago and hence the writ petition cannot be entertained after three decades on the ground that either original purpose was not public purpose or the land cannot be used for any other purpose.

6. Under these circumstances, we think that the High Court was right in refusing to entertain the writ petition."

20. In Sita Ram Bhandar Society v. State (NCT of Delhi) reported in (2009) 10 SCC 501 the Hon'ble Supreme Court observed that:

"28. A cumulative reading of the aforesaid judgments would reveal that while taking possession, symbolic and notional possession is perhaps not envisaged under the Act but the manner in which possession is taken must of necessity depend upon the facts of each case. Keeping this broad principle in mind, this Court in T.N. Housing Board v. A. Viswam, (1996) 8 SCC 259 after considering the judgment in Balwant Narayan Bhagde v. M.D. Bhagwat, (1976) 1 SCC 700, observed that while taking possession of a large area of land (in this case 339 acres) a pragmatic and realistic approach had to be taken. This Court then examined the context under which the judgment in Narayan Bhagde case had been rendered and held as under:

"9. It is settled law by series of judgments of this Court that one of the accepted modes of taking possession of the acquired land is recording of a memorandum or panchnama by the LAO in the presence of witnesses signed by him/them and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. It is common knowledge that in some cases the owner/interested person may not be cooperative in taking possession of the land."

40. In Narayan Bhagde case one of the arguments raised by the landowner was that as per the communication of the Commissioner the land was still with the landowner and possession thereof had not been taken. The Bench observed that the letter was based on a misconception as the landowner had re-entered the acquired land immediately after its possession had been taken by the Government ignoring the scenario that he stood divested of the possession, under Section 16 of the Act. This Court observed as under:

"29. ... This was plainly erroneous view, for the legal position is clear that even if the appellant entered upon the land and resumed possession of it the very next moment after the land was actually taken possession of and became vested in the Government, such act on the part of the appellant did not have the effect of obliterating the consequences of vesting.'

To our mind, therefore, even assuming that the appellant had re-entered the land on account of the various interim orders granted by the courts, or even otherwise, it would have no effect for two reasons,

(1) that the suits/petitions were ultimately dismissed and

(2) that the land once having vested in the Government by virtue of Section 16 of the Act, re-entry by the landowner would not obliterate the consequences of vesting."

21. The Hon'ble Supreme Court in Leelawanti & Ors. v. State of Haryana & Ors reported in (2012) 1 SCC 66 held as under:

"19. If Para 493 is read in the manner suggested by the learned counsel for the appellants then in all the cases the acquired land will have to be returned to the owners irrespective of the time gap between the date of acquisition and the date on which the purpose of acquisition specified in Section 4 is achieved and the Government will not be free to use the acquired land for any other public purpose. Such an interpretation would also be contrary to the language of Section 16 of the Act, in terms of which the acquired land vests in the State Government free from all encumbrances and the law laid down by this Court that the lands acquired for a particular public purpose can be utilised for any other public purpose.

22. The approach adopted by the High Court is consistent with the law laid down by this Court in State of Kerala v. M. Bhaskaran Pillai, (1997) 5 SCC 432 and Govt. of A.P. v. Syed Akbar, (2005) 1 SCC 558. In the first of these cases, the Court considered the validity of an executive order passed by the Government for assignment of land to the erstwhile owners and observed:

"4. In view of the admitted position that the land in question was acquired under the Land Acquisition Act, LA 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.

24. For the reasons stated above, we hold that the appellants have failed to make out a case for issue of a mandamus to the respondents to release the acquired land in their favour. In the result, the appeal is dismissed without any order as to costs."

22. It appears from perusal of the averment made in the writ petition as well as in the representations that only prayer made by the petitioners to release their land from Acquisition proceedings, no averments whatsoever has been in the entire writ petition or in the representations made by the petitioners before the Authorities that the possession of the land has not been taken.

23. In view of the aforesaid, we are of the opinion that the possession of the land has been taken by the Authorities. Once the possession has been taken, the petitioners are not entitled for any benefit as provided under Sub-Section (2) of Section 48 of the Act of 1894.

24. In view of the above, the petitioners are not entitled for the relief as claimed. Petition devoid of merits and is accordingly dismissed.

Order Date :- 17.6.2021

Swati

(Prakash Padia,J.) (Sanjay Yadav, C.J.)