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2001 DIGILAW 770 (ALL)

PREM NARAIN SINGH v. STATE OF UTTAR PRADESH

2001-08-01

M.KATJU, R.B.MISRA

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M. KATJU, R. B. MISRA, JJ. ( 1 ) THIS writ petition has been filed for a mandamus directing the respondents 3 and 4, the U. P. Avas Evam Vikas Parishad and its Joint Development Commissioner, to release from their possession plots No. 651 and 655 in district Agra and specifically to release the alleged places of worship and samadhis belonging to the ancestors of the petitioner. ( 2 ) WE have heard learned counsel for the parties and have perused the affidavits. ( 3 ) BY a notification under Section 28 of the U. P. Avas Evam Vikas Parishad Act, 1965 vide anncxure-2 to the petition, the respondent No. 3 proposed to acquire about 700 acres of land under its scheme called sikandara Grih Sthan Evam Sadak Yojna. Agra. The land of the petitioner measuring 24. 5 bighas and consisting of about 19 plots also formed part of the area covered by the said notification. Details of the plots are given in paragraph 3 of the petition. On 17. 3. 1980 the respondent No. 3 issued a notification under Section 32 (1) of the Act vide annexure-3 to the petition. There were a series of litigations which went up to the Supreme court and the Supreme Court decided the case on 12. 8. 1993 vide Annexure-4 to the petition. Thereafter it is alleged that there was delay in the finalising of the proceedings and hence the supreme Court directed the award to be passed by its order dated 9. 7. 1999 vide Annexure-7 to the petition. Accordingly, the award was passed on 8. 8. 1997 vide Annexure-1. A perusal of the award shows that religious places will be kept out of the acquisition. ( 4 ) THE petitioner made representation on 1. 1. 1997 and 18. 12. 1997 vide Annexures-8 and 9 alleging that on the plots in question there were religious places as these are samadhis of his ancestors on the land in question and hence they should be excluded from the acquisition. The petitioner has also relied on a notification of the State Government vide Annexure-10 that religious places and graveyards be exempted from acquisition. However, the respondent No. 3 through its Assistant Engineer issued a possession letter on 8. 8. 1997 wherein it was mentioned that plot Nos. 651 and 655 amongst other places stood transferred to respondent No. 3. The petitioner has also relied on a notification of the State Government vide Annexure-10 that religious places and graveyards be exempted from acquisition. However, the respondent No. 3 through its Assistant Engineer issued a possession letter on 8. 8. 1997 wherein it was mentioned that plot Nos. 651 and 655 amongst other places stood transferred to respondent No. 3. True copy of this letter is Annexure-11 to the petition. The Special Land Acquisition Officer issued another order of possession to the Tahsildar Sadar, Agra, on 12. 8. 1997. ( 5 ) AGGRIEVED by the amount of compensation paid to him, the petitioner preferred a reference under Section 18 vide Annexure-13 to the petition. True copy of the written statement filed by the respondent No. 3 is Annexure-14 to the petition. This matter is still pending before the Land acquisition Tribunal, Agra. In paragraph 22 of the petition, it is alleged that as per Rule 4 of the u. P. Avas Evam Vikas Parishad (Acquisition and Disposal of Land) Rule, 1969, the petitioner was entitled for allotment of a residential plot as he comes under the category of displaced person whose land has been acquired and he does not have any other residential place to reside. Relevant extract of the Rule is Annexure-15 to the petition. The petitioner moved an application before respondent No. 4 requesting him to allot 500 square metres of the plot preferably near the samadhis and religious places. True copy of the application dated 6. 7. 1999 is Annexure-16 to the petition. The Special Land Acquisition Officer has certified by certificate dated 27. 8. 1998 vide annexure-17 to the petition that the petitioner is displaced person. However, this application has not been processed. In paragraph 28 of the petition, it is stated that no compensation has been paid to the petitioner in respect of the religious places and samadhis on plot Nos. 651 and 655 although the respondents have taken possession. Hence this petition. ( 6 ) THE respondents have filed a counter-affidavit. In paragraph 3 of the same, it is stated that the respondents have not received the alleged application dated 6. 7. 1997 of the petitioner. In paragraph 5, it is stated that the respondents have paid, the compensation as awarded by the special Land Acquisition Officer. Hence this petition. ( 6 ) THE respondents have filed a counter-affidavit. In paragraph 3 of the same, it is stated that the respondents have not received the alleged application dated 6. 7. 1997 of the petitioner. In paragraph 5, it is stated that the respondents have paid, the compensation as awarded by the special Land Acquisition Officer. In paragraph 6 of the same, it is stated that the whole of the acquired land has come in possession of the respondents long back. In paragraph 8. It is stated that there is no religious place at all on plot Nos. 651 and 655. It is further alleged that the petitioner did not file any objection regarding plot Nos. 651 and 655 nor did he ever state that these plots are religious places before the Special Land Acquisition Officer and hence, he cannot take this objection at this stage. Even today, there is no religious place on these plots. In paragraph 10 of the counter-affidavit, it is stated that the petitioner does not come within the category of displaced persons. In paragraph 14. It is stated that plot Nos. 651 and 655 do not have any religious place or samadhis. In paragraph 17, it is stated that possession of plot Nos. 651 and 655 have already been taken. At most of the places, the development and construction work is in progress. In paragraph 19 of the same, it is stated that the land in dispute is the main and Integrated part of the yojna of the respondents and hence, it cannot be made free. The housing Board shall incur irreparable loss if any part of the yojna is denotified. ( 7 ) WE have also perused the rejoinder-affidavit in which the allegations in the petition have been reiterated. ( 8 ) THE petitioner has also filed a supplementary affidavit. In paragraph 4 of the same, it is stated that the fact that there is a religious place on the plot in dispute is supported by the assessment done by the Agra Nagar Nigam for the purpose of assessment vide Annexure-SA 1 to the affidavit. ( 8 ) THE petitioner has also filed a supplementary affidavit. In paragraph 4 of the same, it is stated that the fact that there is a religious place on the plot in dispute is supported by the assessment done by the Agra Nagar Nigam for the purpose of assessment vide Annexure-SA 1 to the affidavit. ( 9 ) ANOTHER supplementary affidavit has been filed by the petitioner and in paragraph 5 of the same, it has been stated that the remains of the dead body of the petitioners ancestors have not been buried in the samadhis, but after the cremation a memorial in their memory has been erected for performing shraddha ceremony. ( 10 ) IN our opinion, it is a disputed question of fact as to whether there was any religious samadhi on the land in question because the respondents are denying this. This disputed question of fact cannot be decided in this petition. Moreover. It is well-known that amongst Hindus, samadhis are made for sadhus and sanyasis who had renounced the world. Amongst Hindus while ordinarily there is cremation of the dead body but as regards sanyasis who have renounced the world their bodies on their death are not cremated but are either immersed in a river or they are buried and a samadhi is erected on top of that place, this is because when a person takes s any as he is supposed to have had civil death and he is to perform his own death ceremonies (kriya karam) at the time of taking sanyas. It has no where been alleged by the petitioner that his ancestors were sadhus or sanyasis. Thus, this so called samadhis, even assuming it exists, appears to be only for sentimental reasons and it cannot be described as a religious place. ( 11 ) LEARNED counsel for the petitioner has relied on the decision of the Supreme Court in Nagu v. Bamu, AIR 1978 SC 1174 . This decision, in our opinion, does not support the case of the petitioner. In paragraph 15 of this decision, the Supreme Court itself has held that the raising of a tomb over the remains of a ancestor who was an ordinary person is not recognised as religious in nature. This decision, in our opinion, does not support the case of the petitioner. In paragraph 15 of this decision, the Supreme Court itself has held that the raising of a tomb over the remains of a ancestor who was an ordinary person is not recognised as religious in nature. No doubt the Supreme Court later goes on to mention about a memorial raised for performing shraddha ceremony of the ancestor, but it appears that the supplementary-affidavit filed during the course of the argument by the petitioner before us was only to take the benefit of these observations of the Supreme Court and no opportunity for filing counter-affidavit in reply to this supplementary-affidavit could be given as the hearing was itself going on before us. Thus, the allegation in paragraph 5 of the supplementary-affidavit appears to be an afterthought, and cannot be believed. The petitioner before the Special Land Acquisition Officer took no such stand and we cannot permit him to take it at this late stage when the hearing itself is going on before us. Moreover, the stand that the petitioner was displaced is also controverted in the counter-affidavit and no such stand appears to have been taken before the Special Land acquisition Officer. The possession of the land has already been taken by the Housing Board, and as stated in paragraphs 17 and 19 of the counter-affidavit, the Housing Board will suffer irreparable loss if we interfere because Development and Construction work under the yojna is going on. ( 12 ) THUS, there is no force in this petition it is dismissed accordingly