Anil Kumar vs State Of U.P. And Another
2023 Latest Caselaw 7597 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 47
 

 
Case :- WRIT - C No. - 7733 of 2019
 

 
Petitioner :- Anil Kumar
 
Respondent :- State of U.P. and Another
 
Counsel for Petitioner :- Pramod Jain,Archit Mehrotra,Samarth Sinha,Shreya Gupta,Vijay Sinha
 
Counsel for Respondent :- C.S.C.,Kaushalendra Nath Singh
 

 
Hon'ble Ashwani Kumar Mishra,J.

Hon'ble Vinod Diwakar,J.

Petitioner Anil Kumar had filed an earlier Writ Petition No. 71894 of 2011, wherein notification issued under Section 4 r/w Section 17(1) and 17(4) of the Land Acquisition Act, 1894, dated 30th March, 2002; and notification issued under Section 6 of the Act of 1894, dated 28.6.2003 were challenged. The writ petition came to be clubbed alongwith a bunch of writ petitions with leading Writ petition No. 37443 of 2011 (Gajraj and others Vs. State of U.P. & others). The writ petition was disposed of with the bunch of leading writ petitions vide order dated 13.12.2011.

Grievance of the petitioner is that benefit of the order of the earlier judgment passed by this Court in the case of Gajraj (supra) has not been extended to the writ petitioner.

The respondents in the counter affidavit submit that the petitioner's land situated in different gata numbers had been acquired and that it was only in respect of Gata No. 474 that the writ petition was filed and that in respect of Gata No. 310 and 518 no challenge was laid to the notification by the petitioner in the aforesaid writ petition.

Counsel for the petitioner has invited attention of the Court to the prayer clause in the earlier writ petition which is extracted at page 46 of the counter affidavit and is reproduced hereinafter:-

"(a) Issue a writ, order or direction in the nature of certiorari for quash the notification dated 30.3.2002 and 28.6.2003 under section 4 and 6 of the Land Acquisition Act and award dated 29.1.2010 (Annexure No. 3, 4 and 5 to this writ petition) passed by the respondent no.4 including the entire acquisition proceeding.

(b) Issue a writ, order or direction in the nature of mandamus directing the respondent no. 4 to release the acquired land qua to the petitioners situated in Village-Sadarpur, Pargana & Tehsil Dadri, District-Gautambudh Nagar covered by section 4 and 6 Notifications dated 30.3.2002 and 28.6.2003 respectively."

It is contended that admittedly the petitioner was the recorded bhumidhar of land in the other two gata numbers, namely Gata No. 310 and Gata No. 518 and, therefore, the challenge in the writ petition was not just limited to Plot No. 474, but it included Gata No. 310 and 518 also.

Learned counsel further places reliance upon a division bench judgment of this Court in Writ Petition No. 10221 of 2019 (Hariram Vs. State of U.P. and another), wherein identical question of facts had arisen for consideration before this Court. The writ court found that non-mentioning of two plots therein would not be fatal to the case of the petitioner nor the relief granted in the case of Gajraj can be restricted so as to exclude grant of benefit in respect of two plot numbers which had not been mentioned in the writ petition. The writ petition accordingly came to be disposed of in terms of the following directions contained in Paragraphs 6 to 13 of the judgment which are reproduced hereinafter:-

"6. The only reason which has been assigned in the order impugned is that the two plots i.e. khasra nos.403 and 470 do not find mention in any of the paragraphs of the earlier writ petition.

7. It is not in dispute that the petitioner herein was a party in the earlier writ petition i.e. Writ-C No.49133 of 2011 which was disposed of on 17.02.2012 in terms of the order passed on the writ petition, Writ-C No.6022 of 2008 (Pratap Singh Vs. State of U.P. & Ors.). The order is being reproduced below:-

"Disposed of.

For order, see order of date passed on the Writ Petition No.6022 of 2008."

8. It has been brought to our notice that insofar as Writ-C No.6022 of 2008 is concerned, it had been taken up alongwith a bunch of writ petitions and vide judgment dated 17.02.2012 the same was disposed of in terms of direction no.3 and other directions issued in the judgment and order dated 21.10.2011 passed in the case of Gajraj & Ors. Vs. State of U.P. & Ors.1.

9. The aforementioned direction nos.3 and 4 issued by this Court in the case of Gajraj & Ors. (supra), as extracted in the impugned order dated 04.10.2018, are as follows:-

"3. All other writ petitions except as mentioned above at (1) and (2) are disposed of with following directions:

(a) The petitioners shall be entitled for payment of additional compensation to the extent of same ratio (i.e. 64.70%) as paid for village Patwari in addition to the compensation received by them under 1997 Rules/award which payment shall be ensured by the Authority at an early date. It may be open for Authority to take a decision as to what proportion of additional compensation be asked to be paid by allottees. Those petitioners who have not yet been paid compensation may be paid the compensation as well as additional compensation as ordered above. The payment of additional compensation shall be without any prejudice to rights of land owners under section 18 of the Act, if any.

(b) All the petitioners shall be entitled for allotment of developed Abadi plot to the extent of 10% of their acquired land subject to maximum of 2500 square meters. We however, leave it open to the Authority in cases where allotment of abadi plot to the extent of 6% or 8% have already been made either to make allotment of the balance of the area or may compensate the land owners by payment of the amount equivalent to balance area as per average rate of allotment made of developed residential plots.

4. The Authority may also take a decision as to whether benefit of additional compensation and allotment of abadi plot to the extent of 10% be also given to;

(a) those land holders whose earlier writ petition challenging the notifications have been dismissed upholding the notifications; and

(b) those land holders who have not come to the Court, relating to the notifications which are subject matter of challenge in writ petitions mentioned at direction No.3."

10. It has been stated in the order impugned that the benefit of 5% additional developed abadi land is being given only to those tenure holders who were petitioners in the aforementioned case of Gajraj & Ors. (supra) and the connected matters.

11. The order duly takes note of the fact that the petitioner was a party in Writ-C No.49133 of 2011, which was disposed of in terms of the directions issued in the case of Gajraj & Ors. (supra) and connected matters. The only objection which has been taken with regard to petitioner's claim is that the plots in question i.e. khasra nos.403 and 470 situate in Sadarpur have not been mentioned. This objection cannot be accepted for the reason that once it is admitted that the petitioner was a party in the case of Bhanwar Singh (supra), which in turn had been disposed of in terms of the judgment in the case of Gajraj & Ors. (supra) and connected matters, and the respondent authority had taken a decision to grant benefit of the additional 5% abadi land to all the petitioners who were party in the case of Gajraj & Ors. (supra) and connected matters and also in the writ petitions which were covered in terms of the judgment in the case of Gajraj & Ors. (supra), the claim of the petitioner cannot be non-suited only for reason that the plots in question had not been mentioned in the paragraphs of the writ petitions. This is moreso, for the reason that the plots in question i.e. plot nos.403 and 470 did find mention in Form-11 a copy whereof had been annexed along with the writ petition. Also, the petitioner being a party in the case of Bhanwar Singh (supra) in which the notifications pertaining to the Village Sadarpur had been challenged and the only plots regarding which the petitioners had raised a claim being khasra nos.403 and 470 the order impugned which has been passed by the respondent authority for the reason that the plots in question were not mentioned in the paragraphs of the writ petitions, cannot be legally sustained.

12. We, therefore, set aside the order dated 04.10.2018 passed by the respondent no.2, and remit the matter for a fresh decision by the said respondent. The respondent no.2 is expected to take decision in the light of the aforementioned observations in accordance with law after due notice and opportunity to the petitioner within a period of two months from the date of production of a certified copy of this order.

13. The writ petition is disposed of in the aforementioned terms."

The NOIDA Authority has challenged the aforesaid judgment before the Supreme Court by filing Special Leave to Appeal No. 20091 of 2019, which has been dismissed on 27.9.2019.

Our attention has also been invited to Annexure 3 to the supplementary affidavit wherein the consequential orders for grant of benefit, in respect of two plots not mentioned in the writ petition, has also been granted to the petitioner Hariram vide order dated 18.12.2019. It is, therefore, urged that the denial of benefits to the petitioner of the judgment in Gajraj (supra) in respect of Gata No. 310 and 518 acquired vide the aforesaid notification issued under Sections 4 and 6 of the Act is wholly arbitrary.

Per contra, Sri K.N. Singh for the Authority states that the petitioner since had not challenged the acquisition notification in respect of plot nos. 310 and 518, as such, the denial of benefit due under the judgment in Gajraj (supra) in respect of aforesaid two plots is justified. Learned State Counsel has also adopted the same stand taken by the learned counsel appearing for the NOIDA Authority.

We have heard learned counsel for the parties and perused the materials on record.

The notifications issued under Sections 4 and 6 of the Land Acquisition Act have been annexed alongwith the writ petition which clearly shows that Plot No. 310 admeasuring 6 bigha 1 biswa and Gata No. 518 admeasuring 1 bigha 11 biswa were also acquired by the same notification vide which plot no. 474 was also acquired. The prayer clause in the earlier writ petition clearly shows that the notification in its entirety was challenged so far as it related to the present petitioner and, therefore, mere non mentioning of two plot numbers which had been acquired by the same notification cannot be to the detriment of the petitioner's cause. We otherwise find that the previous adjudication of this Court in the case of Hariram (supra) is on same set of facts which has found approval of the Supreme Court with dismissal of the special leave petition. We are, therefore, of the view that the NOIDA Authority would not be justified in restricting the grant of benefit to the petitioner due under the judgment in Gajraj (supra) only to the extent of Plot No. 474 and deny such benefit in respect of other two plot numbers, namely Plot No. 310 and 518.

For the reasons recorded above, this writ petition succeeds and is allowed. The order passed by the NOIDA Authority dated 6.8.2018 rejecting the claim of petitioner in that regard stands quashed. The second respondent is directed to accord consideration to petitioner's claim in light of the above observations and to extend such benefits as are found due and payable to petitioner within a period of four months from the date of presentation of a certified copy of this order before him.

Order Date :- 16.3.2023

Ranjeet Sahu