Ramesh Chandra Tripathi And 14 ... vs State Of U.P. And 4 Others
2023 Latest Caselaw 5647 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 39
 

 
Case :- WRIT - C No. - 37871 of 2022
 

 
Petitioner :- Ramesh Chandra Tripathi And 14 Others
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Sheetla Sahai Srivastava
 
Counsel for Respondent :- C.S.C.,Sunil Kumar Misra
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Ms. Nand Prabha Shukla,J.

Heard learned counsel for the petitioners, Sri Sunil Kumar Misra learned Advocate appears for the respondent nos. 2, 3 and 5 and learned Standing Counsel for the State-respondent.

The present writ petition has been filed with the following reliefs:-

"a) Issue a writ, order or direction in the nature of certiorari to quash the impugned notification published on 23.5.2009, 30.05.2009 & 06.06.2009, u/s 28 of Uttar Pradesh Awas Vikas Parishad Adhiniyam, 1965 as well as the Notification dated 30.03.2013 published on 04.05.2013 No. 2509/L.A.C./H.Q. u/s 32 of the Adhiniyam, 1965.

b) Issue a writ, order or direction in the nature of mandamus to direct the respondent authority not to interfere in peaceful possession of the petitioners.

c) Issue any other suitable writ, order or direction which this Hon'ble court may deem fit and proper in the facts and circumstances of the case.

d) Award cost of the writ petition to the petitioners."

It is agreed between the parties that the dispute pertaining to the acquisition notifications, subject matter of challenge herein, has been determined by this court in the judgment and order dated 4.1.2023 passed in Writ-C No. 24889 of 2022 (Smt. Madhuri Srivastava vs. State of U.P. and 4 others). It was noted therein that the land in question was acquired for a housing scheme namely Mandhana Bhumi Vikas Evam Grah Sthan Yojna No. 4, Kanpur, which was framed by the Awas Evam Vikas Parishad to solve the acute housing problem of Kanpur Nagar City. The acquisition notifications were issued in the years 2009 and 2013 under Sections 28 and 32 of the U.P. Awas Evam Vikas Parishad, 1965; respectively. However, no award has been passed with respect to the acquired land and in 257th Board meeting of Awas Evam Vikas Parishad dated 2.11.2022, on the interference made by this Court in the aforesaid writ petition, it was resolved to pay compensation by purchase of the land by mutual consent as per the letter dated 15.1.2019 of the Commissioner, Kanpur Division, Kanpur. It was further observed by the Division Bench (presided over by one of us) in the aforesaid case as under:-

"However, no award has been passed with respect to the acquired land, which was subject matter of compulsory acquisition. It is sought to be submitted in paragraph '5' of the affidavit of the Executive Engineer, CD-1 U.P. Awas Evam Vikas Parishad, Kanpur that in 257th Board meeting dated 2.11.2022 it has been resolved to pay compensation by purchase of the land by mutual consent as per the letter dated 15.1.2019 of the Commissioner, Kanpur Division, Kanpur. A perusal of letter dated 15.1.2019 appended at page '62' of the paper book further indicates that the said letter was addressed to Housing Commissioner, Awas Evam Vikas Parishad, U.P. Lucknow pursuant to a decision of a committee constituted under the chairmanship of the District Magistrate, Kanpur Nagar wherein it was resolved that the acquired land for the project in question shall be purchased by mutual consent. It was noted in the said letter that though the compulsory acquisition of the land in question was made by the notification dated 23.5.2009(published in the official Gazette on 12.1.2009) and notification dated 4.5.2013 under Section 28 and 32 of the Act, 1965; respectively, but since no award with respect to the land has been prepared, the State Government has decided to purchase the land from the landowners by mutual consent.

Admittedly, even after the directions issued by the State Government, the Housing Commissioner, Awas Evam Vikas Parishad, Lucknow did not conduct any exercise for purchase of the compulsory acquired land for the project in question. No exercise for determination of payment for compensation to the land owner even by mutual consent has been made till date.

Only after the present writ petition had been filed and orders dated 16.9.2022 and 14.12.2022 have been passed asking the learned counsel for the Awas Evam Vikas Parishad to file counter affidavit to explain reasons for non-preparation of award for a period about ten years, the Board of Awas Evam Vikas Parishad held a meeting on 2.11.2022. In the counter affidavit, even the resolution of the Board has not been brought on record and as such, the Court in its order dated 14.12.2022 has taken exception to the said stand taken by Awas Evam Vikas Parishad.

Today, when the matter was taken up, a copy of the resolution of 257th board meeting of Awas Evam Vikas Parishad dated 2.11.2022 has been placed before us which is taken on record. A perusal of the same indicates that Board in its meeting has resolved that an award be declared in the matter of acquisition for the project namely, Mandhana Bhumi Vikas Evam Grah Sthan Yojna and permission be taken for execution of the project in question.

From the above facts brought on record, it is more than evident that though the Awas Evam Vikas Parishad had tried to expropriate a large chunk of land for a housing scheme planned by it but for a period of about ten years from the first acquisition notification dated 12.1.2009 under section 28 of the Act, 1965, no concrete steps have been taken for completion of the acquisition proceedings. No steps have been taken for payment of compensation for compulsory acquisition of a large chunk of land by the notification dated 4.5.2013 under Section 32 of the Act, 1965.

There is nothing on record to indicate that there was any legal impediment in taking possession of the entire chunk of land apart from the land in dispute, acquisition of which was subject matter of previous writ petition filed by the petitioner in the year 2015. Further, the order passed by this Court was only to maintain the status quo as on the date i.e. after 7.8.2015. Physical possession of the land in question could not be taken thereafter, but there is no explanation as to why award has not been made under Section 55 of the Act, 1965 to provide compensation to the land owners in the matter of compulsory acquisition.

It seems that taking cognizance of the said facts, the State Government had issued directions to the Housing Commissioner, Awas Evam Vikas Parishad, Lucknow to purchase the land by mutual consent. The direction issued to the Commissioner, Awas Evam Vikas Parishad, Lucknow pursuant to the decision taken by the Principal Secretary,U.P. Shashan dated 21.7.2016 finds reference in the communication dated 15.1.2019.

From a perusal of the letter dated 15.1.2019 addressed to the Housing Commissioner, Awas Evam Vikas Parishad, U.P. Lucknow, it is evident that the Principal Secretary, Government of U.P. communicated the decision of the State Government by letter dated 21.6.2016 for purchase of the acquired land by mutual consent which was required for the project in question but no steps have been taken for a period more than five years by the Awas Evam Vikas Parishad in the said direction. The letter of the Commissioner, Kanpur Division, Kanpur dated 15.1.1919 is appended at page '62' of the counter affidavit which is reiteration of the decision of the Principal Secretary, U.P. in its letter dated 21.6.2016.

It is, thus, evident that the respondent Awas Evam Vikas Parishad never inclined to execute the project in question which was, surprisingly, conceived in the year 2009 to solve the acute problem of Kanpur city. As is evident from the decision of the State Government that even the State has decided not to go ahead with the compulsory acquisition of the acquired land in question in absence of passing of the award and directed for purchase of the land from the landowners by mutual consent. The compulsory acquisition of land in question subject matter of notifications dated 12.1.2009/23.5.2009 and 4.5.2013 under Sections 28 and 32 of the Act, 1965; respectively, therefore, stood lapsed with the decision of the State Government communicated through the letter dated 21.6.2016.

We are, therefore, of the considered opinion that the compulsory acquisition of land in question, subject matter of notification dated 12.1.2009/23.5.2009 and 4.5.2013 under Sections 28 and 32 of the Act, 1965; respectively, stood lapsed for inaction on the part of the Awas Evam Vikas Parishad. As it is evident that the Awas Evam Vikas Parishad was never inclined to execute the project namely, Mandhana Bhumi Vikas Evam Grah Sthan Yojna, which was a scheme planned in the year 2009 with regard to which compulsory acquisition of land was made by the notifications in question, the stand taken by the respondent Awas Evam Vikas Parishad in the counter affidavit filed in the present writ petition based on the resolution of Board seeking for time to complete the acquisition proceedings is not acceptable. The record makes it evident that the Awas Evam Vikas Parishad sat over the matter and woke up from slumber only after response was sought by this Court in the present writ petition.

The resolution of 257th meeting of the Board of Awas Evam Vikas Parishad dated 2.11.2022 is nothing but an eyewash and cannot be considered to be an expression of interest of the Awas Evam Vikas Parishad in the housing scheme.

Having considered the matter from all angles, we allow the second prayer made in the writ petition holding that the notifications dated 12.1.2009/23.5.2009 and 4.5.2013 under Sections 28 and 32 of the Act, 1965 stood lapsed by operation of the law as also because of the decision of the State Government that since award with respect to the acquired land has not been made, the land can only be purchased by mutual consent from the landowners.

The writ petition is allowed, accordingly. There shall be no interference in the right of the petitioner to enjoy her land, at the hands of Awas Evam Vikas Parishad in any manner."

Taking note of the above facts, we have held therein that the notifications dated 23.5.2009 and 4.5.2013 under Sections 28 and 32 of the Act, 1965 stood lapsed by operation of law as also because of the decision of the State Government that since award with respect to the acquired land has not been made, the land can only be purchased by consent of the land owners.

We propose to allow the present writ petition in the above terms. The present writ petition is, accordingly, allowed.

It is provided that there shall be no interference in the right of the petitioners to enjoy their land, at the hands of the Awas Evam Vikas Parishad in any manner.

Order Date :- 21.2.2023

Brijesh