Brijendra Kumar Agarwal And Ors. vs State Of U.P. Thru Prin. Secy. ...
2023 Latest Caselaw 12322 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 2
 

 
Case :- WRIT - C No. - 19956 of 2019
 

 
Petitioner :- Brijendra Kumar Agarwal And Ors.
 
Respondent :- State Of U.P. Thru Prin. Secy. Urban Plan. And Devpt. And Ors.
 
Counsel for Petitioner :- Manoj Kumar,Sridhar Awasthi
 
Counsel for Respondent :- C.S.C.,Ratnesh Chandra
 

 
Hon'ble Rajan Roy,J.

Hon'ble Manish Kumar,J.

Heard Shri Sudeep Seth, learned Senior Advocate assisted by Shri Manoj Kumar, learned counsel for the petitioner, learned Standing Counsel for the State respondents and Shri Ratnesh Chandra, learned counsel appearing for the Lucknow Development Authority.

Present writ petition has been filed with the following main relief:-

" An appropriate Writ, order or direction in the nature of mandamus commanding the opposite party no. 1 to pass appropriate orders under Section 54 of the Act, 1973 by considering the Notice dated 12.10.2018 sent by the Petitioners (as contained in Annexure No.15 to the writ petition), within a time frame to be fixed by this Hon'ble Court."

Contention of Sri Sudeep Seth, learned Senior Advocate appearing on behalf of the petitioner is that Khasra Plot No. 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 27, 28, 29, 30, 33 and 28 situated at village Mampur Bana and Khasra Plot No. 269 situated in village Rampur Devrai, Pargana Mahona, Tehsil- Bakshi Ka Talab, District Lucknow was purchased by the petitioners between 2002-2008. The said villages were brought in the development area by a notification dated 06.01.1999 issued under the Urban Planning and Development Act, 1973. These villages were included in the master plan for the said development area, for the first time on 31.03.2005 when the master plan 2021 was notified/published and became operative. Prior to it, the land use had been changed from agricultural to non-agricultural under Section 143 of the erstwhile U.P.Z.A & L.R. Act, 1950. Mutation in favour of the petitioners had also taken place much prior to it. On 08.06.2016 & 08.10.2018, the petitioners were informed that the aforesaid plots were reserved for recreational purposes in the Master Plan, 2021. The period of ten years mentioned in Section 54 of the Act,1973 from the date of coming into operation of Master Plan, 2021 expired on 31.03.2015 but till then, no proceedings had been undertaken for acquisition of the aforesaid plots of land which were reserved for recreational purposes/open spaces under the Master Plan, 2021. On 21.12.2016, a new Master Plan, 2031 came into operation. Thereafter, on 12.10.2018, a notice was given by the petitioners under Section 54 of the Act, 1973, considering the fact that the aforesaid plots of land had not been acquired in spite of lapse of ten years' period and a right had accrued in favour of the petitioners in terms of Section 54 of the Act, 1973.

Submission is that even after expiry of six months' notice period, acquisition did not take place, therefore, sub Section 2 of Section 54 of the Act, 1973 came into operation, according to which, the land was to be treated as if it was not acquired to be kept as an open space or was not designated as subject to compulsory acquisition, meaning thereby, it was open for the petitioners to claim their rights in respect of the said land and use it accordingly.

Learned counsel for the petitioner has relied upon a Division Bench judgment of this Court dated 20.04.2020 rendered in W.P. No. 5841 (MB) of 2007, wherein the provisions contained in Section 54 of the Act, 1973, which is involved herein, came up for consideration, specifically in the context of questions framed by the said Division Bench in paragraph 28 thereof, one of which was-

(iii) Whether a Development Authority can continue with such reservation by making simultaneously next Master Plan but without having any obligation of acquisition of such private land in a manner so as to render Section 54(2) ineffective and futile ?

The Division Bench on consideration of the said provision answered the question framed by it in the para nos. 50, 51 and 52 of the said judgment, which is being quoted hereunder:-

"50. Now in the backdrop of aforesaid exposition of law as well as statutory provisions, we may examine the facts of this case. Admittedly Master Plan was enforced on 14.08.1996. No action was taken for acquisition of land in dispute which was reserved for use of Bus Stand/ Bus Termimus. A period of ten years was to be expired on 13.08.2006. It is true that first notice was served by petitioners on 18.01.2005 by which time 10 years period was not expired. Accordingly it was rightly replied by respondents that Section 54 of U.P. Act, 1973 was not applicable since 10 years period has not expired. Thereafter another notice was sent by petitioners on 17.08.2006 when 10 years period admittedly had already expired. It was open to respondents to initiate proceedings for acquisition within next six months i.e., upto 16.02.2007. The defence of respondents is that before expiry of aforesaid six months period next Master Plan had come into force, draft whereof was submitted on 22.02.2005 and State Government approved it on 03.10.2006. Therefore, 10 years period stood renewed or revived and the matter has to be examined in the light of next Master Plan approved by Government and not earlier one of 1996. We do not find it acceptable. It is not in dispute that with respect of land in dispute, there is no change in the Master Plan on 2021. When land was not acquired within 10 years in the Master Plan which came into force on 14.08.1996, Section 54 conferred a right upon land owner to serve a six months' notice and if no action is taken, there is a deemed provision of lapsing of reservation of land. The said statutory cannot be defeated only on the ground that in the meantime after service of notice, new Master Plan has been approved. Section 54 neither contemplates any principle of renewal or lapse of right accrued not the constitutional and legal right of petitioners to enjoy their property can be subjected to inaction by respondents for an indefinite period in the manner as has been suggested by respondents in the present case.

51. If such an interpretation, in our view, is accepted, the provisions permitting reservation of private land and power of acquisition may not remain constitutionally valid. It is not necessary for us to go into that aspect since, in our view, after service of notice on 17.08.2006 it was open to respondents to initiate proceedings within six months and having failed to do so, the deeming provision of Section 54(2) would apply and land in question would stand released. Section 54 of U.P. Act, 1973 which is an exception to the power of Eminent domain of State recognized under U.P. Act, 1973 would become redundant if what is argued by respondents is accepted. Such an interpretation, therefore, cannot be accepted.

52. In view of above, writ petition is allowed. Respondents are directed to take action on petitioners' application dated 12.03.2007 treating the land in question having released from reservation by virtue of Section 54(2) of U.P. Act, 1973 and pass appropriate order within two months from the date of production of a certified copy of this order. Petitioners shall be entitled to costs, which we quantify to Rs. 25,000/-."

The contention is that once the period of ten years referred in Section 54 of the Act, 1973 expired, then the petitioners were entitled to give a six months notice to the State Government in terms thereof, which was done on 12.10.2018 and as there was no acquisition within the notice period then the land could not be treated as reserved for the purposes mentioned in Section 54. Hence, this petition.

On the other hand, Shri Ratnesh Chandra, learned counsel for the Lucknow Development Authority says that prior to giving the notice dated 12.10.2018, the new Master Plan, 2031 had come into force on 21.12.2016, therefore, the benefit of Section 54 would not be available to the petitioner and the period of ten years mentioned therein would stand extended by another ten years. He says that the reference to the Master Plan in the said provision is to the existing Master Plan i.e. 2031.

In response thereto, Shri Sudeep Seth, learned Senior Advocate says that reference to the Master Plan in Section 54 is to the Master Plan in which the land in question is reserved for the first time for the purposes mentioned therein. If contention of Shri Ratnesh Chandra, learned counsel for the L.D.A. is accepted it would render Section 54 of the Act of 1973 superfluous and otiose as it will become an unending exercise. He says that past experience is that the opposite parties bring a new Master Plan almost in every 10 or 12 years.

In this regard, he submitted that Master Plan 2001 was formulated on 20.02.1992 whereas Master Plan, 2021 came into force on 31.03.2005 and the Master Plan, 2031 has come into force on 21.10.2016, therefore, if this interpretation of Section 54 is given, as is suggested by Shri Ratnesh Chandra, learned counsel for the L.D.A., then, it would frustrate the provisions of Section 54 and no such interpretation can be resorted to which renders such a provision meaningless. The intention of legislature while providing in Section 54 that if there is an amendment to the Master Plan, the period of ten years would be calculated from the date of coming into operation of such amendment is that if, by the original Master Plan, the land was not covered, but, was covered by the subsequent amendment, in that eventuality the period of ten years would be calculated from the date of amendment coming into force. He also submitted that the original Master Plan, 2021 did not undergo any amendment. This part of the provision has no application to the facts of the case.

Shri Seth also relied upon para 7 of a recent decision of Hon'ble Supreme Court in the case of Laxmikant and others Vs. State of Maharashtra and others reported in 2022 SCC OnLine SC 349, decided on 23.03.2022 in support of his contention.

Shri Seth says that State was given last opportunity to file counter affidavit in the matter on 13.12.2019 but even after lapse of three and a half years, the same has not been filed, therefore the request of Shri Rajesh Tiwari, learned Additional C.S.C. for grant of time in this regard needs to be rejected.

We accept this part of the contention and reject the prayer of Shri Rajesh Tiwari, learned Additional C.S.C. especially considering the relief prayed for in this writ petition.

Shri Tiwari, learned Additional C.S.C. has invited our attention to the contents of notice dated 12.10.2018 given by the petitioner to point out various facts are mentioned therein. We need not bother ourselves with this as we are not concerned with the merits of the matter as yet, considering the relief prayed for.

In view of the above discussion, we direct the State Government to take a decision under Section 54 of the Act, 1973 in the light of the notice dated 12.10.2018 given by the petitioner. While doing so the State Government shall be obliged to consider each and every plea raised on behalf of the petitioner, seeking the relief prayed for. The Judgments relied upon shall also be kept in mind, apart from other judgments which may be applicable on the subject.

Decision as aforesaid shall be taken within a period of two months from the date of certified copy of this order is served.

With the aforesaid observations and directions, writ petition is disposed of.

Order Date :- 21.4.2023

Ashish