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2007 DIGILAW 2138 (ALL)

BINU SINHA v. STATE OF UTTAR PRADESH

2007-08-16

DEVI PRASAD SINGH, PRADEEP KANT

body2007
JUDGMENT By the Court.—Heard learned Counsel for the petitioners Shri Adnan Ahmad and Mr. Ashok Kumar Pandey, learned Counsel for the State. 2. The usual action of the State in using the land of the petitioners without taking recourse to the acquisition proceedings and not paying the compensation is an issue which has again come up before us. Though despite our orders passed in various writ petitions that such an action of the State not-only is adverse to the interest of the land holders but also burdens the State with the liability of increasing interest and thereby causing loss to the public exchequer and therefore, the State may look into all such cases and take appropriate decision with liberty given to it to recover the amount of interest from the officers who are responsible for such acts and particularly for non-payment of compensation for such a long time, but despite the aforesaid directions, it appears that the State has not taken any step in this direction. 3. It is undisputed that the petitioners’ land was used for making Ambedkar Park in the year 1979 but they were not paid any compensation nor their land was acquired nor requisitioned. 4. During the pendency of the writ petition, a part payment of Rs. 88,000/- has been made. This meagre amount besides being wholly inadequate also does not account for the delayed payment, namely by making the payment of interest and solatium etc., to which a land holder will be entitled to have, if the land is acquired under the provisions of the Land Acquisition Act (to be hereinafter referred to as Act), as per provisions of the said Act. 5. The area of 9576 sq.ft. was thus taken into possession by the then Nagarpalika and there is no denial in the counter-affidavit that the land was not acquired. 6. 5. The area of 9576 sq.ft. was thus taken into possession by the then Nagarpalika and there is no denial in the counter-affidavit that the land was not acquired. 6. In writ petition No. 48 (L.A.) of 1997, Ravindra Mohan Gupta and another v. State of U.P., through Secretary, Local Self Government, Civil Secretariat, Lucknow and others, decided on April 6, 2004, a Division Bench of this Court, in which one of us (Hon’ble Pradeep Kant, J.) was a member, considered the aforesaid situation prevailing in many matters where possession had been taken without acquisition and without making payment of compensation and directed that the petitioners would be entitled for compensation to be calculated at the market rate which was prevalent on the date of taking possession and they would also be entitled to interest at the rate of 12% from the date of taking possession till the date of actual payment. Further, the Court considered and expressed its concern in the following manner : “Before parting, we express our concern in the manner the State and the L.D.A. has dealt with the issue involved in the present case. Land of the petitioner was taken without acquiring under the provisions of law in February, 1986. L.D.A. made several requests and also sent proposal to the State Government for acquiring the said land as per law and on 1.8.1996 also made certain payment to the Additional District Magistrate, as demanded by him but despite the correspondence made by the L.D.A. the land was not notified under the provisions of Land Acquisition Act and though the possession was taken in February, 1986 but compensation was not awarded nor paid. The result is that a huge liability of money along with interest has accrued on the State Government or the L.D.A., or the H.A.L. as the case may be. The payment of interest for indefinitely long period without there being just case would be acting in a manner which does not protect the interest of public exchequer. Indifferent and casual attitude on the part of the respondents in not awarding compensation immediately when the possession was taken and not taking proceedings for acquisition even though L.D.A. approached the State Government in this regard and allowing increasing liability of interest cannot be appreciated. Indifferent and casual attitude on the part of the respondents in not awarding compensation immediately when the possession was taken and not taking proceedings for acquisition even though L.D.A. approached the State Government in this regard and allowing increasing liability of interest cannot be appreciated. It is a matter which has to be considered by the State Government and therefore, it is desirable that all such cases be looked into by the State Government where possession has been taken without following the provisions of Land Acquisition Act or any other such Act. The compensation should be awarded at the earliest so that liability of interest is not multiplied by leaps and bounds. The State would be at liberty to fasten the liability upon the erring officers, who may be found responsible for accrual of such a large amount of interest and for recovering the same either wholly or partly if the State so desires.” 7. If the possession of the land of any person has been taken by the State or any other acquiring body for using it for any purpose, it is the requirement of law, that such land has to be acquired by following the procedure as given in the Registration Act or the Requisition Act or it can also be acquired by negotiation on consent, being given in writing and lastly by getting a sale-deed executed in favour of the acquiring body. There is no other way under which the land of any person which does not belong to the State or to the Gaon Sabha can be acquired and used for any other purpose—may be public purpose. In case the land is acquired under any one of the aforesaid methods, such land holder will be entitled for having adequate compensation to be determined under the provisions of the Act. 8. In case the state or the acquiring body does not follow any of the aforesaid methods for acquiring the land and the possession is taken, the person whose land is taken, can ask for return of the possession and there would be no legal impediment in ordering return of the possession. However, it has been realised that once the possession is taken, the nature of the land is changed and sometimes roads, culverts, bridges, canals and often houses etc. are constructed. However, it has been realised that once the possession is taken, the nature of the land is changed and sometimes roads, culverts, bridges, canals and often houses etc. are constructed. The land may be used for any other purpose, but the fact remains that the land loses its original character and shape. In such a situation, the Courts ask for the payment of compensation looking into the larger interest that the construction already raised may not be demolished as many a time, the rights of the third party also come, in between, but we take notice of the fact that this process/practice of compensating the land holders/owners of the land as a normal routine has encouraged the State or the acquiring body for taking possession of the land without following the procedure of law. Right to get back the possession if the land has been unauthorisedly and illegally taken cannot be, all the time, defeated because of the subsequent act of raising construction or making buildings or any other construction over the land the possession of which has been illegally taken. 9. Any land or a property if has been unauthorisedly, illegally or arbitrarily acquired, or its possession is taken, by the State Government or any other Local Body or authority, the raising of construction, or changing its nature and shape, cannot be taken as an indefeasible defence for the State for not restoring the possession of the land/property to the owner, either with construction, or after raising construction. It is for the Court to decide in this regard on the facts and circumstances of each individual case. The Court while considering such an issue, naturally, shall see, that whether land so illegally occupied by the State or any other authority, has been used for any public purpose in the interest of larger public or it has been used for some individual interest or such use is not in public interest. It will be the discretion of the Court either to restore the possession to the owner or to award him compensation, but the plea of utilisation of land, after illegal occupation cannot be taken as a complete defence, by them who take such possession. It will be the discretion of the Court either to restore the possession to the owner or to award him compensation, but the plea of utilisation of land, after illegal occupation cannot be taken as a complete defence, by them who take such possession. To achieve the goal enshrined in the Constitution, to provide justice— social, political and economical, to all and that ours being a welfare State, every action of the State is to be guided in the same direction. Even the State Government cannot use the land or the property without following the process of law, merely on its whims. 10. Further, even if the land has not been acquired under the provisions of any Act but the possession has been taken, the compensation will have to be paid by following the methodology as given in the Land Acquisition Act, taking as if the land has been acquired. If any other mode is allowed to be adopted for payment of compensation, it would create arbitrariness, unreasonableness and of course, an unchecked discretion at the hands of the district authorities to pay a certain amount of compensation to a person and different amount of compensation to another person. The scheme of the Act for providing the compensation shall thus be a guiding factor even in those cases where the land has not been acquired but the possession has been taken. Such person would be entitled to the statutory interest as well solatium and other benefits as given in the Act. Merely because the State or the acquiring body has not chosen to follow the law of acquisition, it would not give a right to it to defeat the claim of compensation in the manner to which such a land holder would have been entitled, in case the State had taken appropriate steps for acquiring his land in accordance with the provisions of the Act. 11. The petitioners thus are entitled to the compensation at the market rate which was prevalent on the date of taking possession and also the statutory interest as also the solatium etc. and since this amount has not been paid, we direct the Collector to look into the grievance of the petitioners and refix the compensation, keeping in mind the observations made above in consonance with the provisions of the Land Acquisition Act. and since this amount has not been paid, we direct the Collector to look into the grievance of the petitioners and refix the compensation, keeping in mind the observations made above in consonance with the provisions of the Land Acquisition Act. This will be done within a period of three months after providing opportunity of hearing to the petitioners. The amount already paid shall be adjusted in the final payment. 12. Subject to above, the writ petition is finally disposed of. 13. Let a copy of this order be sent to the Chief Secretary and the Legal Remembrancer, Government of UP. Lucknow. ———