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2004 DIGILAW 666 (ALL)

Raghubir Singh v. State of U. P.

2004-03-24

MARKANDEY KATJU, R.S.TRIPATHI

body2004
JUDGMENT : M. KATJU, J. 1. This writ petition has been filed against the impugned notification dated 3.1.1983 u/s 4 of the Land Acquisition Act and notification dated 12.2.1986, Annexure-2 to the petition u/s 6 and the letter dated 29.11.2003, Annexure-3 to the petition. The Petitioner has also prayed that the Respondent be restrained from dispossessing him from the land in dispute and from demolition of the construction thereon. 2. Heard learned Counsel for the parties. 3. A bare perusal of the notification u/s 4 shows that it is stated therein that the land in question has been acquired for a public purpose. The notification u/s 6 states that the public purpose is for a planned development scheme in district Agra for housing. 4. The Petitioner claims to be the bhumidhar of certain land in village Bhogipur district Agra. The details of the area and plot are given in para 4 of the petition. 5. It is stated in para 6 of the petition that the land which is being acquired is constructed upon and the plot of the Petitioner are having construction. In para 7 of the petition it is stated that neither notification u/s 9 was issued to the owners including the Petitioner nor any award has been prepared and thus in view of Section 11A of the Land Acquisition Act the proceedings have lapsed. However, the Petitioner has been served a notice dated 29.11.2003 asking him to accept compensation of 80% of the estimated amount vide Annexure-3. It is alleged in para 9 of the petition that the Petitioner had no knowledge of the land acquisition proceeding before receiving the letter dated 29.11.2003. 6. In paras 11 to 13 of the petition it is alleged that the scheme which was floated through notification of 1983 followed by subsequent notification of 1986 was abandoned and this is clear from the subsequent notification published in Amar Ujala dated 10.5.2000. 7. A counter-affidavit has been filed on behalf of the Respondent No. 4 Agra Development Authority. 8. In para 5 thereof it is stated that the disputed plots have been purchased from the Petitioner by Cantonment Sahkari Avas Samiti. The said samiti had filed Writ Petition No. 4609 of 1986 challenging the notifications under Sections 4 and 6 of the Land Acquisition Act. 8. In para 5 thereof it is stated that the disputed plots have been purchased from the Petitioner by Cantonment Sahkari Avas Samiti. The said samiti had filed Writ Petition No. 4609 of 1986 challenging the notifications under Sections 4 and 6 of the Land Acquisition Act. This petition was dismissed on 7.1.2002 and thereafter the Agra Development Authority took over possession of the entire land on 6.12.2003 and 26.12.2003 as per delivery of possession documents. True copy of the possession memos are Annexure C.A.3 and C.A.4 to the counter-affidavit. 9. The Petitioner had sold away the disputed land to Agra Cantonment Sahkari Avas Samiti, Agra, which fact is specifically mentioned in the award dated 30.12.2003 vide Annexure C.A.5. 10. In para 7 of the counter-affidavit it is stated that the explanation to Section 11A of the Land Acquisition Act excludes the period during which the stay order was operating. Since there was an interim order dated 20.2.1986 in Writ Petition No. 4609 of 1986 hence the period during which the stay order was operating has to be excluded. Hence it is alleged that the award was given well within time. The Agra Development Authority has deposited the amount of compensation Rs. 11,95,500 as per order dated 29.11.2003 vide Annexure C.A.6. It is alleged in para 9 of the counter-affidavit that the Petitioner was well acquainted of the proceedings under the Land Acquisition Act but he deliberately took no interest as he had sold the land to Agra Cantonment Sahkari Avas Samiti. In para 10 of the counter-affidavit it is stated that the second notification was misconceived and at any event the Petitioner was not at all affected as he had sold the land to the Samiti whose writ petition was dismissed on 7.1.2002. In para 11 it is stated that the Petitioner's consent was immaterial as he was not the owner after sale of the land to the Samiti. The subsequent notification was misconceived and the entire action has been taken in pursuance of the earlier notification. In para 13 it is stated that the possession has been taken by the Respondent and in para 14, it is stated that there was no construction on the disputed land which is evident from the recital in the award and the letter of delivery of possession. In para 13 it is stated that the possession has been taken by the Respondent and in para 14, it is stated that there was no construction on the disputed land which is evident from the recital in the award and the letter of delivery of possession. In para 20, it is stated that the Petitioner had been deprived of both title and possession when he sold out the land to Agra Cantonment Sahkari Avas Samiti and possession had also been delivered to the Agra Development Authority on 6.12.2003 and 26.12.2003. 11. On the facts of the case we find no merit in this petition. In our opinion the Petitioner has concealed the material fact that he had sold part of the land in dispute to Agra Cantonment Sahkari Avas Samiti and the Samiti's Writ Petition No. 4609 of 1986 had been dismissed on 7.1.2002. In our opinion the Petitioner was fully aware of these facts but he deliberately concealed the same. Hence this petition deserves to be dismissed on the ground that the Petitioner has not come with clean hands. Moreover we cannot permit challenge to the notifications issued in 1983 and 1986 in a writ petition which has been filed in the year 2003, as such a writ petition is clearly belated. 12. After the vacation of the stay order with the rejection of writ petition 7.1.2002 the held up proceedings continued and on 6.12.2003 and 26.12.2003 the acquired land under the aforesaid notification was actually delivered to the Agra Development Authority to carry out the Bodla Housing Extension Scheme by making constructions as planned. The possession delivery letters are Annexure-C.A. III and C.A.-IV to the counter-affidavit of the Agra Development Authority, Respondent No. 4. 13. The award dated 30.12.2003 Annexure-C.A.S. v. followed within a few days of the actually delivery of possession and the Agra Development Authority deposited eighty percent of the estimated amount of compensation with the Special Land Acquisition Officer, Respondent No 2, who issued letter dated 29.11.2003 (Annexure-III to the writ petition) to the Petitioner to collect the same from his office, as the revenue records continued to show the Petitioner's name against the specified plots measuring a total of 9-8-0 bighas. 14. 14. The Petitioner has preferred the present petition challenging the notifications dated 3.1.1983 and 12.2.1986 as also the letter dated 29.11.2003 referred to above (Annexure-I to III respectively) concealing the vital fact that the Petitioner had already sold off part of the disputed land to a third party. 15. The Agra Development Authority has relied on the possession letters of 6.12.2003 and 26.12.2003 which make no mention of any constructions as also the loss of title and possession of the Petitioner after sale of the land to the Cantonment Sahkari Avas Samiti which finds specific mention in the award dated 30.12.2003. The continuance of khasra entries in the revenue records in the name of the Petitioner is immaterial as such entries do not confer title vide M.T.W. Tenzing Namgyal and Others vs. Motilal Lakhotia and Others, (2003) 5 SCC 1 . 16. In para 3 of the rejoinder-affidavit it is admitted that some of the land in question was sold to the Samiti. 17. We are of the opinion that the proceedings have not lapsed u/s 11A since in computing the period of two years the period during which the stay order in Writ Petition No. 4609 of 1986 was in operation, i.e. from 20.2.1986 to 7.1.2002 is to be excluded. Hence, the award dated 30.12.2003 was within the stipulated period of two years. Moreover, since Section 17 had been invoked and possession taken over the acquisition proceedings cannot be said to have lapsed vide Mahendra Singh vs. State of U.P. 2002 (2) AWC 1629 . After execution of the possession memo possession of the tenure holder or anyone else is that of an unauthorised occupant, vide Awadh Bihari and Others vs. State of Bihar and Others, (1995) 6 SCC 31 , Balmokand Khatri Educational and Industrial Trust, Amritsar vs. State of Punjab and Others, (1996) 4 SCC 212 . The proceedings will not lapse in this situation vide Patharoo and Others vs. U.P. Awas Evam Vikas Parishad and Others, (2002) 5 AWC 3665 . 18. In our opinion the second notification 10.5.2000 u/s 4 was misconceived and by mistake the plot Nos. 15, 16 and 18 of village Bhogipura was mentioned although the same was already acquired in the years 1983 and 1986 under the Land Acquisition Act. 19. Possession of the disputed land had already been taken on 6.12.2003 and 26.12.2003. 18. In our opinion the second notification 10.5.2000 u/s 4 was misconceived and by mistake the plot Nos. 15, 16 and 18 of village Bhogipura was mentioned although the same was already acquired in the years 1983 and 1986 under the Land Acquisition Act. 19. Possession of the disputed land had already been taken on 6.12.2003 and 26.12.2003. After the issuance of the notice u/s 9 of the Land Acquisition Act, award was made on 30.12.2003 (within the period of two years after excluding the period during which the interim order of the High Court was in operation). In pursuance of the notification under Sections 4 and 17 of the Land Acquisition Act and declaration u/s 6 of the Act the compensation had been deposited by the Agra Development Authority on 29.11.2003. In view of the aforesaid facts and circumstances the land has vested absolutely in the State free from all encumbrances, vide Kaloo Ram vs. State of U.P. Writ Petition No. 27317 of 2001, decided on 5.3.2004. It may be mentioned that the Agra Development Authority, Agra, is not a private business concern but is engaged in a public purpose to provide residential flats to the general public on no profit basis and the land in question having been duly acquired for the Housing Scheme and the Respondent No. 4 having promptly deposited eighty per cent of the anticipated acquisition compensation followed by actual delivery of vacant land as per delivery of possession letters dated 6.12.2003 and 26.12.2003 it admits of no doubt that the land in question stood transferred to the Respondent No. 4 Agra Development Authority, Agra and the Petitioner had lost all title and possession thereof. Consequently, there is no merit in this petition and it is dismissed with costs.