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2001 DIGILAW 1161 (ALL)

DHANNO v. STATE OF UTTAR PRADESH

2001-12-12

G.P.MATHUR, R.P.MISRA

body2001
G. P. MATHUR, J. ( 1 ) THIS writ petition under Article 226 of the Constitution has been filed praying that the notifications issued under Sections 4 and 6 of the Land Acquisition Act, acquiring the petitioners land, be quashed, and a writ of mandamus be issued directing the respondents not to interfere in the peaceful user, occupation and possession of the land by the petitioner. ( 2 ) THE petitioner claims that she is recorded owner of plot No. 37, khata No. 122, having an area of 3 bighas and 5 biswas in village Sadarpur, tehsil and pargana Dadri. district Ghaziabad (now district Gautam Budha Nagar ). The State Government issued notifications under Sections 4 (1)and 6 of the Land Acquisition Act for acquiring large number of plots including the plot in question. The notifications mentioned that the land is being acquired for a public purpose, namely, for planned industrial development in the district of Ghaziabad through New Okhla industrial Development Authority (N. O. I. D. A.) and as the Governor was of the opinion that the land was urgently required, the provisions of Sub-sections (1) and (4) of Section 17 of the Act were invoked and the provisions of Section 5a were dispensed with. It appears that after the notifications under Sections 4 (1) and 6 had been issued in the year 1994 and 1995, respectively, a notice dated 15. 7. 1997 was served upon the petitioner under Section 9 of the Act, stating that the Government intends to take possession of the plot and that claims to compensation for all interests in such land may be made. Thereafter, the petitioner preferred C. M. Writ Petition No. 31863 of 1997, wherein three reliefs were claimed, namely. (1) for quashing the notifications issued under Sections 4 and 6 of the Act, (2) for quashing the notice dated 15. 7. 1997 served upon the petitioner under Section 9 of the Act, and (3) a writ of mandamus be issued commanding the respondents to consider the representation and request of the petitioner for excluding plot No. 37 of khata No. 122 of the petitioner from acquisition proceedings. The writ petition was finally disposed of on 22. 9. 1997 with a direction that the representation which may be made by the petitioner to the Revenue Secretary, Government of U. P. , Lucknow, for excluding her plot from the acquisition proceedings be decided. The writ petition was finally disposed of on 22. 9. 1997 with a direction that the representation which may be made by the petitioner to the Revenue Secretary, Government of U. P. , Lucknow, for excluding her plot from the acquisition proceedings be decided. It is averred in paragraph 7 of the writ petition that the petitioner made a representation on 6. 10. 1997 and, ultimately, the same was decided by the order dated 6. 3. 2000 and the prayer made by the petitioner was rejected. The petitioner then filed C. M. Writ Petition 28086 of 2000 for quashing the aforesaid order passed by the Revenue Secretary of the State Government. This writ petition was dismissed on 4. 7. 2000 on the finding that to grant exemption from acquisition was a matter within the domain of the governments executive action and no Interference was required in the writ petition filed by the petitioner. Thereafter, the petitioner has filed the present writ petition on 2. 11. 2001, which is the third writ petition. ( 3 ) SRI J. C. Gupta. learned counsel for the petitioner, has challenged the acquisition proceedings on three grounds. The first ground is that the possession of the land has not been taken so far though urgency provisions of Section 17 had been applied while issuing notifications under sections 4 (1) and 6 of the Act. The second ground is that as the award has not been made within 2 years of the publication of the declaration under Section 6, the proceedings for acquisition of the land have lapsed in view of the provisions of Section 11a of the Act, and the third ground is that 80 percent of the estimated amount of compensation has not been paid to the petitioner and, as such, there was breach of Sub-section (3a) of Section 17 of the Act. ( 4 ) A copy of the order passed by the Revenue Secretary of the State Government on 6. 3. 2000 on the representation by the petitioner has been filed as Annexure-7 to the writ petition. While deciding issue No. 4, a finding has been recorded that the possession of the disputed land of village Sadarpur has already been taken on 28th and 29th of June, 1999. 3. 2000 on the representation by the petitioner has been filed as Annexure-7 to the writ petition. While deciding issue No. 4, a finding has been recorded that the possession of the disputed land of village Sadarpur has already been taken on 28th and 29th of June, 1999. It has also been mentioned therein that the fact of taking of possession has been corroborated by the letter of the secretary of the NOIDA dated 8. 9. 1999 and also by the letter of the District Magistrate. Gautam budha Nagar dated 6. 1. 2000. In view of this clear finding, which has been recorded in the order of the State Government, It is not possible to accept the petitioners plea that possession of the disputed plot has not been taken. ( 5 ) THAT apart, there is no clear averment in the writ petition that the petitioner is still in possession of the plots in dispute. The averment In paragraph 18 of the writ petition is that in view of the aforesaid facts and circumstances, the petitioner is under direct threat of dispossession by the respondents and, as such, it is necessary in the interest of justice that the respondents be restrained from Interfering with the petitioners possession over the plot in question. But, this paragraph has been sworn as being "based on perusal of papers". If the case of the petitioner was that she was in possession, she should have made a clear and categorical statement of the said fact which should have been sworn on personal knowledge. The manner in which paragraph 18 has been written and has been sworn, namely, on the basis of perusal of papers, we are not prepared to accept the contention of Sri Gupta that the petitioner is still in possession over the plot in question. ( 6 ) COMING to the second contention that the award having not been made within 2 years of the declaration, the proceedings have lapsed under Section 11a of the Act, it may be mentioned that the State Government had Invoked the urgency provisions and the notification Issued under section 4 (1) clearly mentioned that the provisions of Sub-section (1) of Section 17 of the Act are applicable and the Governor was pleased to direct under Sub-section (4) of Section 17 of the act that the provisions of Section 5a of the Act shall not apply. The notification under Section 6 also mentioned that the Governor being satisfied that the case is one of urgency is further pleased under Sub-section (1) of Section 17 of the Act to direct that the Collector of Ghaziabad, though no award under Section 11 has been made, may, on the expiration of 15 days from the date of publication of the notice mentioned in Sub-section (1) of Section 9 take possession of the land. The question whether Section 11a of the Act will apply in a case where urgency provisions of section 17 are invoked, has been considered in Satendra Prasad Jain and Ors. v. State of U. P. and Ors. , AIR 1993 SC 2517 , and it was held as under : "the provisions of Section 11a are intended to benefit the land owner and ensure that the award is made within a period of two years from the date of the Section 6 declaration. In the ordinary case, therefore, when Government falls to make an award within two years of the declaration under Section 6, the land has still not vested in the Government and its title remains with the owner, the acquisition proceedings are still pending and, by virtue of the provisions of Section 11a, lapse. When Section 17 (1) is applied by reason of urgency, 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. Section 17 (1) states so in unmistakable terms. Clearly. Section 11a can have no application to cases of acquisitions under section 17 because the lands have already vested in the Government and there is no provision In the said Act by which land statutorily vested in the Government can revert to the owner. . . . . " In view of this authoritative pronouncement by the Apex Court, the provisions of Section HA have no application here and the proceedings cannot lapse on account of non-making of the award within 2 years of the declaration. ( 7 ) THE requirement of subsection (3a) of Section 17 is that before taking possession of the land, the Collector has to tender payment of eighty percent of the compensation as estimated by him to the person Interested. It may be mentioned here that notice dated 15. 7. ( 7 ) THE requirement of subsection (3a) of Section 17 is that before taking possession of the land, the Collector has to tender payment of eighty percent of the compensation as estimated by him to the person Interested. It may be mentioned here that notice dated 15. 7. 1997 under Section 9 of the Act was served upon the petitioner, which she challenged by filing C. M. Writ Petition No. 31863 of 1997 on 18. 9. 1997. This was long before the possession was taken. It appears that the petitioner herself did not appear before the Collector in response to the notice. Sub-section (3a)of Section 17. no doubt, casts a duty upon the Collector to tender eighty percent of the estimated amount of compensation before taking possession. But non-compliance of the said provision will not automatically result in vitiating the acquisition proceedings. It only confers a right upon the person interested to get eighty percent of the estimated amount of compensation before he is dispossessed from the land. This is in the nature of provisional payment and it is always subject to the final award to be made by the Collector under Section 11 of the Act. The language of sub-section (3a) of the Act does not show that if eighty percent of the estimated amount of compensation is not paid before taking possession of the land, the proceedings for acquisition will be vitiated or will become illegal. ( 8 ) THERE is another aspect of the case. In C. M. Writ Petition No. 31863 of 1997, the petitioner had sought quashing of the notifications under Sections 4 (1) and 6 of the Act, but the said prayer was not granted. CM. Writ Petition No. 28086 of 2000 was dismissed on 4. 7. 2000 and the last paragraph of the order passed by this Court reads as follows : "so far as this Court is concerned, no fault existed in the land acquisition proceedings and, therefore, no interference is required. The writ petition is dismissed summarily. " the aforesaid finding that "no fault existed in the land acquisition proceedings" has become final and is not open to challenge in this third writ petition. ( 9 ) IN view of the reasons mentioned above, there is no merit in the writ petition, which is hereby dismissed summarily at the admission stage.