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2008 DIGILAW 1124 (ALL)

SURAJ PAL v. U. P. AVAS EVAM VIKAS PARISHAD

2008-05-23

ANJANI KUMAR, RAKESH SHARMA

body2008
JUDGMENT By the Court.—Since common questions of facts and law are involved in these writ petitions, all the three writ petitions are being disposed of by this common judgment and order. 2. Through these writ petitions, the petitioners have assailed the entire land acquisition proceedings which were initiated pursuant to the notification issued, under Section 28 of the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965, on 10.11.1998. Petitioners have also assailed the subsequent notification dated 24.6.2003, issued under Section 32 of the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 (Act No. 1 of 1966). In addition to these reliefs, the petitioners have further sought a writ of mandamus, restraining the respondents from issuing any formal award and taking forcible possession of the land in dispute while implementing the aforementioned land acquisition proceedings. 3. According to learned Counsel for the petitioners, the entire land acquisition proceedings have lapsed with effect from 24.6.2005 by virtue of Section 11-A of the Land Acquisition Act. As per learned Counsel for the petitioners, there was imminent and instant danger of eviction from the land and property in their possession. Learned Counsel for the petitioners submits that since the possession of the land in dispute was not taken by the State Government under Section 17 (1) of the Land Acquisition Act, the land acquisition proceedings have rendered null and void. 4. It appears from the record that notifications under Sections 28 and 32 of the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 (U.P. Act No. 1 of 1966) were issued on 10.11.1998 and 24.6.2003 for acquiring a large chunk of land in furtherance of implementation of housing/improvement scheme and other development projects on Delhi-Bulandshahr By-Pass in the District of Ghaziabad. The petitioners claim themselves to be recorded owners and Bhumidhars of the disputed plots situate in various Villages in Tehsil and Pargana Loni, District Ghaziabad. 5. As admitted by the parties, the U.P. Avas Evam Vikas Parishad (hereinafter referred to as the UPAVP) while exercising its powers under Section 28 of U.P. Act No. 1 of 1966 proposed a housing and improvement scheme in the name and style of ‘Delhi Bulandshahr By-Pass Bhumi Vikas Evam Grah Sthan Yojna’, proposed to acquire 284.79 Hectares/703.72 Acres of land situated in Villages Kaila, Mirjapur, Shahabad @ Mithepur, Akbarpur and Behrampur in the District of Ghaziabad. The notices were published in the local newspapers and U.P. Gazette dated 28.11.1998. The notices were published in the local newspapers and U.P. Gazette dated 28.11.1998. The said scheme was placed for implementation before the State Government and H.E., the Governor of Uttar Pradesh in exercise of power under Section 31(2) of U.P. Act No. 1 of 1966 notified the scheme on 9.8.2002. The decision of the State Government became final by the said notification. However, it was also made open for the concerned affected persons to take recourse of statutory remedy of filing appeal against the notification issued under Section 32(3) of U.P. Act No. 1 of 1966. This remedy has not been exercised by the petitioners. The aforementioned housing/improvement scheme, which was duly notified under Section 32(1) of U.P. Act No. 1 of 1966 and Section 17(1) of the Land Acquisition Act vide notifications dated 24th June, 2002, stood finally implemented. It was published in the Extraordinary U.P. Gazette vide notification dated 24th June, 2003. After the said notifications were issued, H.E., the Governor of Uttar Pradesh, while exercising powers under Section 17(1) of the Land Acquisition Act, directed the Collector, Ghaziabad to obtain possession of the acquired land for implementation of the above house/improvement scheme. As per pleadings, put-forth by the Respondents, State Government and UPAVP, the possession of the land in dispute has already been taken and now the land vests in the Government and claim of the petitioners that they are in possession of the land in dispute is wholly misconceived and unfounded. 6. Sri Shashi Nandan, learned senior Counsel assisted by Sri P.K. Singh, Counsel for the petitioners, has submitted that all the petitioners are duly recorded Bhumidhars and are in possession of the lands duly indicated in the writ petitions. The details of Khasra numbers etc. have been mentioned in the writ petitions. It has been admitted that the notifications dated 10.11.1998, 28.11.1998, 5.12.1998 and 12.12.1998, issued under Section 28 of the UPAVP proposing to compulsorily acquire 284.79 Hectare/703.72 Acres of land, were published in the local newspapers. The said scheme was sanctioned by the State Government vide Gazette Notification dated 24.6.2003 issued under Section 32(1) of the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 (U.P. Act No. 1 of 1966). Thus, the land acquisition proceedings stood concluded when this notification under Section 32(1) of the Act No. 1 of 1966 was inserted. 7. The said scheme was sanctioned by the State Government vide Gazette Notification dated 24.6.2003 issued under Section 32(1) of the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 (U.P. Act No. 1 of 1966). Thus, the land acquisition proceedings stood concluded when this notification under Section 32(1) of the Act No. 1 of 1966 was inserted. 7. Learned Counsel for the petitioners, has submitted that as some of the provisions of the Land Acquisition Act, 1894 are also applicable in the land acquisition proceedings as such the land acquisition proceedings stood lapsed on 24.6.2005 by virtue of Section 11-A of the Land Acquisition Act, 1894. This situation has arisen on account of failure on the part of the respondents to take possession of the notified land within the stipulated period of two years from the date of notification under Section 32(1) of U.P. Act No. 1 of 1966. This notification dated 24.6.2003 was similar to the notification issued under Section 6 and under Section 17(1) of the Land Acquisition Act on account of failure of the respondents to pass award determining compensation to the persons whose lands were acquired, as provided under Section 11-A of the Land Acquisition Act, within two years from the date of issuance of notification under Section 32(1) of U.P. Act No. 1 of 1966, that is, from 24th June, 2003, the entire acquisition proceeding would stand lapsed. 8. According to learned Counsel for the petitioners, the cause of action has accrued to the petitioners as on 4.11.2007, respondents No. 3, 4 and 5 accompanied by Police Force have attempted to forcibly dispossess the petitioners from their respective lands and also attempted to damage the crops standing thereon. Such an action ought not to have been taken as the land acquisition proceedings, set in motion vide notification dated 10.11.1998, under Section 28 and finalised with issuance of notification dated 24th June, 2003 under Section 32(1) of Act No. 1 of 1966 had already lapsed with effect from 24th June, 2005. The respondents cannot ignore the relevant provisions of law and the specific provisions contained under Section 11-A of the Land Acquisition Act. The action of the respondents is wholly arbitrary, null and void, without jurisdiction and is violative of right to property of the petitioners guaranteed under Article 300-A of the Constitution of India. 9. The respondents cannot ignore the relevant provisions of law and the specific provisions contained under Section 11-A of the Land Acquisition Act. The action of the respondents is wholly arbitrary, null and void, without jurisdiction and is violative of right to property of the petitioners guaranteed under Article 300-A of the Constitution of India. 9. Learned Counsel for the petitioners, has also taken the Court to Section 55(1) of U.P. Act No. 1 of 1966, which provides that “Any land or any interest therein required by the Board (UPVAP) for any of the purposes of the Act may be acquired under the provisions of Land Acquisition Act, 1894 (as amended in its application to Uttar Pradesh which for this purpose shall be subject to the modifications specified in the schedule to this Act).” 10. The perusal of the aforesaid provision demonstrate that land acquired by the Board will be acquired under the provisions of Land Acquisition Act (Act No. 1 of 1894) as applicable to the State of U.P., but with modifications as specified in the schedule to Act No. 1 of 1966. Therefore, aforesaid, provisions visualized the acquisition proceedings to be made in accordance with the Act No. 1 of 1894 alongwith modifications which have been specified in the schedule of Act No. 1 of 1966. The schedule referred to in Section 55 of U.P. Act No. 1 of 1966, provides that the Gazette notification/notice of any housing/improvement scheme proposed by UPAVP under Section 28 or Section 31(3) of the Act shall be deemed to be a notification under Section 4(1) of Land Acquisition Act and whereas a notification published under Section 32(1) or 32(4), as the case may be, of U.P. Act No. 1 of 1966 shall be deemed to be a declaration under Section 6 of the Land Acquisition Act, 1894. In addition, the aforesaid schedule (under Section 55 of the Act No. 1 of 1966) also provides for the applicability of the U.P. Amendment Act in respect of Sections 17, 17-A, 23 and 49 of the Land Acquisition Act for the acquisition proceedings being undertaken at the behest of UPAVP. Besides the aforesaid amendments are applicable to the State of U.P., the schedule does not incorporate any other amendment/modification in the Land Acquisition Act, which may affect the acquisition of land by the UPAVP for its housing/improvement scheme. Besides the aforesaid amendments are applicable to the State of U.P., the schedule does not incorporate any other amendment/modification in the Land Acquisition Act, which may affect the acquisition of land by the UPAVP for its housing/improvement scheme. It may, however, be clarified that under the provisions of U.P. Act No. 1 of 1966, the notification under Section 28 or 31 (3) (a) is deemed to be a notification under Section 4 (1) of the Land Acquisition Act, 1894 whereas a notification under Section 32(1) or 31(4) of U.P. Act No. 1 of 1966 is deemed to be a declaration under Section 6 of the Land Acquisition Act, 1894. In addition the land acquisition proceedings for the purposes of U.P. Act No. 1 of 1966 are also governed by the provisions of the U.P. Amendment in Sections 17, 17-A, 23 and 49 of the Land Acquisition Act, 1894. For other procedural mechanism and further course of action of acquisition the provisions of Land Acquisition Act, 1894 only are applicable. 11. Learned Counsel for the petitioners has further submitted that the notification under Section 28 of the U.P. Act No. 1 of 1966 (corresponding to notification under Section 4(1) of the Land Acquisition Act, 1894) was issued on 10.11.1998, whereas the declaration for acquisition/finalization of the scheme under Section 32 of U.P. Act No. 1 of 1966 read with Section 17(1) of the Land Acquisition Act (corresponding to declaration under Sections 6(1) and 17(1) of the Land Acquisition Act) was issued on 24.6.2003 for acquisition of the disputed land whereafter the respondents were obliged to proceed in the matter in accordance with the provisions of the Land Acquisition Act, 1894 and as provided for in the schedule to Section 55 of U.P. Act No. 1 of 1966. The respondents had neither taken possession of the land in question within the stipulated period of two years from the date of publication of Gazette notification under Section 32(1) of U.P. Act No. 1 of 1966 nor had passed an award determining the compensation under Section 11 of the Land Acquisition Act, 1894 within the statutory time period of two years from the date of declaration of notification under Section 6 of Land Acquisition Act, 1894 which in term is equivalent to the notification under Section 32(1) of U.P. Act No. 1 of 1966 which is dated 24.6.2003 and hence the entire land acquisition proceedings pursuant to the notification dated 10.11.1998 and 24.6.2003 (issued under Sections 28 and 32 of U.P. Act No. 1 of 1966 respectively) have lapsed under the provisions of Section 11-A of the Land Acquisition Act, 1894. All the petitioners had never challenged the implementation of scheme of the respondent No. 1 in any Court of law and as such it was open for the respondents to have concluded the land acquisition proceedings within stipulated period. The respondents had already issued notifications on 10.11.1998 and thereafter on 24.6.2003. In fact the land acquisition proceedings had remained in abeyance with effect from the year 1998 till the year 2007 when suddenly the petitioners were threatened with immediate dispossession from the land in dispute. This shows that the entire land acquisition proceedings were a colourable exercise of power and jurisdiction and were a blatant misuse of the powers conferred by the provisions of U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 (U.P. Act No. 1 of 1966). In fact, the land in dispute was not at all required for any developmental scheme. The statutory requirements spelt out in Sections 4(1) and 6 of the Land Acquisition Act, 1894 were not complied with. Interestingly, about 88 Acres of land situated in Village Akbarpur, Behrampur and Mirzapur covered by the aforementioned notifications were released by the State Government in favour of one Maharaji Educational Trust, Ghaziabad in exercise of powers of the State Government under Section 49(1) of the U.P. Act No. 1 of 1966. Since the entire land acquisition proceedings have elapsed, under Section 11-A of the Land Acquisition Act, 1894 no coercive action may be taken against the petitioners and they have statutory right to retain their property after 23.6.2005. Since the entire land acquisition proceedings have elapsed, under Section 11-A of the Land Acquisition Act, 1894 no coercive action may be taken against the petitioners and they have statutory right to retain their property after 23.6.2005. As per Section 35 of Act No. 1 of 1966, petitioners cannot be stopped from developing their land or raising constructions on the same. The respondents do not have any statutory or legal right to dispossess the petitioners after the land acquisition proceedings had lapsed. 12. Learned Counsel for the petitioners has placed reliance on following judgments in support of his case : (1) Girnar Traders v. State of Maharashtra, (2007) 7 SCC 555 (2) Ashok Kumar and others v. State of Haryana and others, (2007) 3 SCC 470 , (3) Kunwar Pal Singh v. State of U.P. and others, (2007) 5 SCC 85 and (4) Smt. Chhotki and others v. State of U.P. and others, 2004(2) AWC 1865 . 13. In reply to the arguments of learned Counsel for the petitioners, learned Additional Advocate General, appearing for the respondents, have submitted that the argument of the learned Counsel for the petitioners that the land acquisition proceedings were put in motion vide notifications dated 10.11.1998 and 24.6.2003 issued under Sections 28 and 32 of the Act No. 1 of 1966 have lapsed with effect from 26.6.2005 under Section 11-A of the Land Acquisition Act, 1894 is wholly misconceived. In fact Act No. 1 of 1966 had come into force on 16th February, 1966, Section 55 of which empowers the Government to acquire land. Provisions of Section 55 of the said Act are being reproduced below : “55. Power to acquire land.—(1) Any land or any interest therein required by the Board for any of the purposes of this Act, may be acquired under the provisions of Land Acquisition Act, 1894 (Act No. 1 of 1894), as amended in its application to Uttar Pradesh, which for this purpose shall be subject to the modification specified in the Schedule to this Act. (2) If any land in respect of which betterment fee has been levied under this Act is subsequently required for any of the purposes of this Act, such levy shall not be deemed to prevent the acquisition of the land under the Land Acquisition Act, 1894.” 14. (2) If any land in respect of which betterment fee has been levied under this Act is subsequently required for any of the purposes of this Act, such levy shall not be deemed to prevent the acquisition of the land under the Land Acquisition Act, 1894.” 14. Learned Additional Advocate General has contended that from the perusal of the contents of Section 55 of Act No. 1 of 1966, it is amply clear that the provisions of Land Acquisition Act, 1894 as amended in its application to Uttar Pradesh will be applicable to the U.P. Avas Evam Vikash Parishad Adhiniyam, 1965 (Act No. 1 of 1966) subject to the modifications specified in the Schedule of the Act. 15. Section 11-A of the Land Acquisition Act, 1894 specifies the period within which an award shall be made. The contents of Section 11-A of the Land Acquisition Act are being reproduced below : “11-A. Period within which an award shall be made.—The Collector shall make an award under Section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse : Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition Act (Amendment) Act, 1984, the award shall be made within a period of two years from such commencement. Explanation.—In computing the period of two years referred to in this section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of Court shall be excluded.” 16. It was further contended by learned Counsel for the respondent that a perusal of Section 11-A of the Land Acquisition Act makes it clear that the Collector shall make an award under Section 11 within a period of two years from the date of publication of the declaration and if no award is made within that period, the entire acquisition proceeding to acquire the land shall lapse. The aforesaid amendment was brought in the Land Acquisition Act by Act No. 68 of 1984 meaning thereby that at the time of enactment of Act No. 1 of 1966, the provisions of Section 11-A of the Land Acquisition Act was not in existence, therefore, provisions of Section 11-A of the Land Acquisition Act is not applicable in the case of the petitioners. 17. It was further submitted by the learned Counsel that the possession of the land in dispute had already been taken and the title being transferred to the U.P. Avas Evam Vikas Parishad on 23.11.2006, mutation has also been carried out in the revenue records incorporating the name of U.P. Avas Evam Vikas Parishad in place of the landholders-petitioners on 28th December, 2006, the provisions of Section 11-A of the Land Acquisition Act shall not be applicable in the present case in view of the ratio laid down by the Apex Court in the case of U.P. Avas Evam Vikas Parishad v. Jainul Islam, AIR 1998 SC 1028 , wherein it has been held that on a proper construction of Section 55 of the Adhiniyam it must be held that while incorporating the provisions of the Land Acquisition Act in the Adhiniyam the intention of the Legislature was that amendments in the Land Acquisition Act relating to determination and payment of compensation would be applicable to acquisition of land for the purposes of Adhiniyam. It means that the amendments introduced in the Land Acquisition Act by the 1984 Amendment Act relating to determination and payment of compensation, i.e., Sections 32(1-A) and Section 23(2) and 28 as amended by the 1984 Act, would be applicable only to acquisition proceedings for the purposes of Adhiniyam under Section 55 of the Adhiniyam. 18. The land was acquired for the purposes of laying and construction of Delhi-Bulandshahr By-Pass Marg by means of notification and declaration made under Sections 28 and 32 respectively of U.P. Avas Evam Vikas Parishad Adhiniyam, 1965. After issuing notification on 10.11.1998 and 24.6.2003, as required, the possession of the land had been taken. However, under the relevant Agreement Rules of 1997, after obtaining the consent of the majority of landholders of the land/plots, the rate of the land was fixed at the rate of Rs. 800/- per Sq. After issuing notification on 10.11.1998 and 24.6.2003, as required, the possession of the land had been taken. However, under the relevant Agreement Rules of 1997, after obtaining the consent of the majority of landholders of the land/plots, the rate of the land was fixed at the rate of Rs. 800/- per Sq. Meter by the Divisional Commissioner, Meerut Division, Meerut, who is the authority competent under the said Rules to assess the rate of the land. The scheme launched by the U.P. Avas Evam Vikas Parishad has already been approved by the State Government and the constructions have also been started by the Parishad. Learned Counsel had brought to the notice of the Court the relevant extracts of agreement executed in the presence of landholders and their representatives and the committee comprising of the District Magistrate, Ghaziabad, Sri Surendra, Member of Parliament, Ghaziabad, Additional District Magistrate (Land Acquisition), Ghaziabad, Additional District Magistrate (Finance and Revenue), Ghaziabad and the Executive Engineer, U.P. Avas Evam Vikas Parishad. This event was widely published in the local News Papers. 19. The learned Counsel has categorically submitted that respondents had not taken possession forcibly as alleged by the petitioners. Only very few people with vested interest and ulterior motive are causing hindrance in the smooth implementation of the scheme, implementation of which is in the larger public interest. As far as exclusion of the land by the Government for Maharaji Educational Trust vide notification dated 5th July, 2006 is concerned, this land was purchased by the said Trust in the year 1996 after obtaining formal permission from the Government for establishing a Medical Institution as a matter of public interest. In view of the larger public interest, the Government has exempted the land from the scheme. This land was, infact, excluded by the Government with a view that adequate medical facilities may be provided to the inhabitants of the area. It has also been highlighted before the Court that the State Government has every discretion under Section 49(1) of U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 to make certain modifications in the scheme while exercising said powers and in exercise of the said powers the State had released 62.7 Acres of land for the said Trust for establishing a Medical Institution. Detailed reasons have been given for exclusion of this land in the counter-affidavit filed in Writ Petition No. 57433 of 2007, Suraj Pal and others v. U.P. Avas Evam Vikas Parishad and others. It has been submitted that the averments made by the petitioners in the writ petition regarding application of provisions of Sections 6 and 11-A of the Land Acquisition Act are not applicable on the acquisitions made under the U.P. Avas Evam Vikas Parishad Adhiniyam. The Apex Court while dealing with the similar issues has held that only the provisions for payment and determination of compensation inserted in the Land Acquisition Act, 1894 by the Amendment Act of 1984 are applicable in the case of acquisition made under the said Adhiniyam. The U.P. Avas Evam Vikas Parishad has already released the amount of compensation by releasing cheques for Rs. 47,47,48,987 (vide cheque dated 13.12.2005) and further a sum of Rs. 30,70,00,000/- was also released vide cheque dated 6.11.2007. The compensation shall be disbursed to land owners. In fact, certain agriculturists were negotiating with the Parishad for taking commercial shops in lieu of the specific area of land acquired by the Parishad. Most of the petitioners had purchased the land after the Collector, Ghaziabad had imposed a ban on sale and purchase of the land in question after initiation of the land acquisition proceeding. Since, petitioners had purchased the land subsequent to issuance of the notice by the District Magistrate putting a ban on sale and purchase of land as such they do not hold any title or interest in the land after initiation of the acquisition proceedings. No one could develop the land or raise any construction over the land under the acquisition proceedings as per the specific provisions contained in Section 35 of the aforesaid U.P. Avas Evam Vikas Parishad Adhiniyam, 1965. 20. The Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 (Act No. 1 of 1966) is a complete code in itself having its objective to undertake planned development for providing residential accommodation and other connected development projects whereas the Land Acquisition Act only deals with acquisition of the land needed for public purposes and for companies as well as for determination of the amount of compensation on account of such acquisition. On the contrary under the Land Acquisition Act, 1894 no development schemes are framed or implemented. On the contrary under the Land Acquisition Act, 1894 no development schemes are framed or implemented. By virtue of Section 55 of Act No. 1 of 1966 and the Schedule framed thereunder, specific provisions have been prescribed for procedural mechanism to achieve the Aims and Objects of implementation of Act No. 1 of 1966. The engrafting of certain provisions of Land Acquisition Act, 1894 by virtue of Section 55 read with schedule of U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 constitute to be a Legislation by incorporation and once the provisions of earlier Act are incorporated the said provision became integral part of the Statute, that is, Act No. 1 of 1966 in which it was transposed. Where the provisions of an Act is incorporated by reference in the later Act, repeal or amendment of the earlier Act in general has no effect upon the construction or effect of the Act in which its provisions have been incorporated. In view of this introduction of Section 11-A in the Land Acquisition Act, 1894 would not apply to the proceedings under Sections 28 and 32 of U.P. Avas Evam Vikas Parishad Adhiniyam, 1965. 21. The learned Counsel has placed reliance on the judgment of a Three Judges’ Bench of Hon’ble Apex Court in the case of Bharat Cooperative Bank Limited v. Cooperative Bank Employees Union, 2007 ACJ 1601 (Paragraphs 14, 15, 16, 17, 18, 19, 20, 22 and 24). Reliance has further been placed on another judgment of the Hon’ble Apex Court in the case of Gauri Shankar and others v. State of U.P. and others, AIR 1994 SC 169 , wherein it has been held that Section 11-A, which was subsequently brought on statute book by an amendment introduced by Act No. 67 of 1984, has no application as by virtue of Section 55 read with schedule certain provisions of the Land Acquisition Act, 1894 were incorporated by reference. At the time of incorporation of Section 11-A was not in existence and the amendment made subsequently in 1984, introducing Section 11-A prescribing limit for making award within 2 years does not apply in Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965. Reliance was further placed by the learned Standing Counsel on the judgments in the cases of State of Maharashtra v. Santh Jogindher Singh Kishan Singh, 1995 Supp. Reliance was further placed by the learned Standing Counsel on the judgments in the cases of State of Maharashtra v. Santh Jogindher Singh Kishan Singh, 1995 Supp. (2) SCC 475 (Paras 12 & 13); U.P. Avas Evam Vikas Parishad v. Pushpa Lata Awasthi, 1995 (5) SCC 573 (Para 4); Satyapal and others v. U.P. Avas Evam Vikas Parishad and others, 1997 (9) SCC 117 (Para 4 & 5); Savitri Cairae v. U.P. Avas Evam Vikas Parishad, 2003 (6) SCC 25 (Paras 16, 17 & 18) and U.P. Avas Evam Vikas Parishad v. Jainul Islam (supra). 22. In order to meet out the arguments of Sri Shashi Nandan, learned Senior Counsel appearing for the petitioners, relying upon a three Judges’ Bench judgment reported in 2007(7) SCC 555 that the matter relating to Section 11-A of the Land Acquisition Act has been referred to the larger Bench and till the decision is rendered in that matter, the proceedings should be kept in abeyance, learned Counsel for the respondents contended that the arguments of learned Counsel for the petitioners is unsustainable in view of the Paragraphs 67 & 68 of the said judgment wherein it was held that Section 11-A of the Land Acquisition Act has no application. The Court was dealing with certain provisions of M.R.T.P. Act. The appeals were dismissed to that extent. The minority view of Hon’ble Mr. Justice P.K. Balasubramaniam is not directly on Section 11-A, but only deals with regard to determination of compensation. Reliance was placed on the judgment of the Apex Court in the case of Girnar Traders v. State of Maharashtra, 2007 (7) SCC 555 . Paragraphs 67 & 68 of the judgment were highlighted. 23. It was further submitted by the learned Counsel for the respondents that the notification under Section 32 of the U.P. Avas Evam Vikas Adhiniyam, 1965, equivalent to Section 6, was made and the urgency clause was invoked under Section 17(1). The Collector, Ghaziabad was directed under Section 9(1) to take possession after 15 days of the publication of the notification and therefore, the provisions of Section 11-A shall not apply for non-delivery of award within two years from the date of publication of notification under Section 32 of U.P. Act No. 1 of 1966. There is no time frame or limitation provided under Section 32 of U.P. Avas Evam Vikas Parishad Adhiniyam, 1965. There is no time frame or limitation provided under Section 32 of U.P. Avas Evam Vikas Parishad Adhiniyam, 1965. The fact that notification under Sections 17(1) and 6(1) was made on 24.6.2003, vide Annexure 6 of the writ petition, and Section 11-A of the Land Acquisition Act even otherwise stands excluded. The possession was taken on 22.11.2006, 23.11.2006 and 15.2.2007 by the Collector after the expiry of 15 days from the period of publication of notice under Section 9(1) of the Land Acquisition Act. The delivery of possession has been duly demonstrated in the counter-affidavit of respondent Nos. 1 and 5. The entire land had vested in the State upon the delivery of possession in view of invocation of urgency clause under Section 17(1) of the Land Acquisition Act. Once the land is vested in the State Government, it cannot be divested of the land so vested. Reliance was placed by the learned Standing Counsel on the following judgments : (1) AIR 1993 SC 2517 , Satendra Prasad Jain and others v. State of U.P. and others (2) 1996 (3) SCC 600 , Sanjeeva Nagar Medical & Health Employees’ Cooperative Housing Society v. Mohd. Abdul Wahab and others (3) 1996 (3) SCC 124 , U.P. Jal Nigam, Lucknow v. Kalra Properties. (4) AIR 1996 SC 122 , Avadh Bihari Yadav v. State of Bihar and others (5) 1988 AWC 450, Jai Prakash v. State of U.P. and another (6) AIR 1997 All 20 , Mohd. Shakeel Khan v. State of U.P. (7) 2007 ACJ 2167 , Brijbhushan Das Bhargav v. State of U.P. 24. In reply to the other contention of learned Counsel for the petitioners that the notification under Section 32, equivalent to Section 6 of the Land Acquisition Act, can be made within one year from the date of proposal under Section 28, equivalent to Section 4(1), but the notification under Section 32 has been made after one year, therefore, the entire proceedings are illegal, the learned Counsel for the respondents submitted that Sections 28 and 32 of U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 do not provide any limitation. It is a complete code in itself and once a legislation did not provide any limitation for making any declaration under Section 32, it cannot be contended that the limitation of one year in between Sections 28 and 32 was imperative. 25. It is a complete code in itself and once a legislation did not provide any limitation for making any declaration under Section 32, it cannot be contended that the limitation of one year in between Sections 28 and 32 was imperative. 25. As far as last limb of the argument of learned Counsel for the petitioners that Section 17(3A) of the Land Acquisition Act makes payment of 80% of estimated compensation mandatory before taking possession and since the condition precedent has not been complied with, the entire acquisition proceedings are illegal is concerned, learned Counsel for the respondents has submitted that it is not a pleaded case of the petitioner and is a new innovation giving twist to the whole case which is impermissible in law. No arguments can be built up on a case which has not been pleaded. Pleading and proof is bedrock to the whole matter. This question has been dealt with in the case of Satendra Prasad Jain v. State of U.P., (1993) 4 SCC 369 , wherein it has been laid down by the Apex Court that the payment of 80% of the estimated compensation is not a condition precedent to take possession under Section 17(1) and if the possession is taken, non-payment of 80% estimated compensation amount will not render it illegal and will not affect the vesting of the land. The non-compliance of making 80% of estimated compensation amount does not automatically results in vitiating the acquisition proceedings. It only confers the right upon the person affected to get interest on 80% of the estimated compensation amount before he is dispossessed from the land. It is in the nature of provisional payment which always is subject to final award made by the Collector under Section 11 of the Land Acquisition Act. Section 17(3A) does not indicate that in case 80% of the estimated amount of compensation is not paid before taking possession, the proceeding shall be vitiated. Reliance in this regard has been placed by the Counsel on the judgment reported in AIR 2002 All 115 , Smt. Dhanno Devi v. State of U.P. 26. As far as payment of compensation amount is concerned, the record of Land Acquisition Officer, Ghaziabad demonstrates that 80% of the compensation has been paid and majority of the landholders have withdrawn the compensation amount. The remaining amount is lying in deposit in D.R. Account. As far as payment of compensation amount is concerned, the record of Land Acquisition Officer, Ghaziabad demonstrates that 80% of the compensation has been paid and majority of the landholders have withdrawn the compensation amount. The remaining amount is lying in deposit in D.R. Account. The possession has been delivered to respondent No. 1 and complete vesting has taken place. In the case of Sanjeeva Nagar Medical Health College v. Mohd. Abdul Wahab, 1996(3) SCC 600 , it has been held by the Apex Court that once the possession has been taken by the Government and vested and delivered to the beneficiary, the land cannot be divested. Even, the mutation has been effected which is apparent from the records of Khataunis annexed with the counter-affidavit. The possession letter has also been filed alongwith the counter-affidavit, which also shows that the possession of the land has been taken. In this view of the matter once the possession has been taken and the land stood vested in the Parishad and there is no procedure for divesting the land, except Section 48, which too cannot be applied in the given facts and circumstances, the writ petitions are liable to be dismissed. 27. We have considered arguments of learned Counsel for the parties and perused the record. 28. It emerges from the record that the scheme for acquisition of land in dispute was duly approved by the State Government as per Section 31(2) of the U.P.A.E.V.P. Act. Accordingly, notifications under Sections 28 and 32 of the said Act were issued on 10.11.98 and on 24.6.2003 they were duly published. The Section 32 is equivalent to Section 6 of the Land Acquisition Act. The urgency clause was also invoked under Section 17(1) of the Land Acquisition Act which is also applicable on the proceedings taken for acquiring land for U.P. Avas Evam Vikas Parishad. Under Section 17(1) of the Land Acquisition Act, the Collector, Ghaziabad was authorised for taking over the possession without delivery of award. The Collector, Ghaziabad was directed under Section 9(1) of the said Act to take possession of the land after fifteen days of the publication of the notification. Under Section 17(1) of the Land Acquisition Act, the Collector, Ghaziabad was authorised for taking over the possession without delivery of award. The Collector, Ghaziabad was directed under Section 9(1) of the said Act to take possession of the land after fifteen days of the publication of the notification. There is sufficient force in the arguments of the learned Counsel for the respondents that the provisions contained in Section 11-A would not apply in the present case for non-delivery of award within two years from the date of publication of notice under Section 32. There is no time frame or limitation provided under Section 32 of the U.P.A.E.V.P. Act. Here, admittedly the notifications under Sections 17(1) and 6(1) were published on 24.6.2003. 29. It has categorically been submitted and demonstrated before the Court through the documents that the possession of the land had already been taken on 22.11.06, 23.11.06 and 15.2.07 by the Collector, Ghaziabad after the expiry of the fifteen days from the period of publication of notice under Section 9(1) of the Land Acquisition Act. It is borne out of the record and the documents which have been placed by the respondents alongwith their counter-affidavits that the delivery of possession was carried out as per law. The entire land has now vested in the State upon the delivery of possession in view of the notification of urgency clause under Section 17(1) of the Land Acquisition Act. The law is well settled that once the land acquired is vested in the State Government, the State cannot be divested of the land so vested. Reliance can be placed on the ratio as indicated in the authorities brought before us by the learned Counsel for the respondents : (1) AIR 1993 SC 2517 , Satendra Prasad Jain and others v. State of U.P. and others, (2) 1996(3) SCC 600 , Sanjeeva Nagar Medical & Health Employees’ Cooperative Housing Society v. Mohd. Abdul Wahab and others, (3) 1996(3) SCC 124 , U.P. Jal Nigam Lucknow v. Kalra Properties (4) AIR 1996 SC 122 , Avadh Bihari Yadav v. State of Bihar and others (5) 1988 AWC 450, Jai Prakash v. State of U.P. and another, (6) AIR 1997 All 20 , Mohd. Shakeel Khan v. State of U.P. and (7) 2007 ACJ 2167 , Brijbhusan Das Bharghav v. State of U.P. 30. Shakeel Khan v. State of U.P. and (7) 2007 ACJ 2167 , Brijbhusan Das Bharghav v. State of U.P. 30. In addition to this, it is relevant to mention that this Court has already held in two recent decisions in Civil Misc. Writ Petition No. 2881 of 2008, Jagdish and others v. State of U.P. and others, decided on 24.4.08 and Civil Misc. Writ Petition No. 15483 of 2008, Babu v. State of U.P. and others, decided on 24.4.08 that if possession has been taken over, the land is vested in the State Government free from all encumbrances, the actual possession on the spot, if any of the petitioner’s predecessors or the petitioners thereafter is wholly illegal, unauthorised and would not divest the land which is already vested in the State Government. This Court has already reiterated the well settled legal position that if the possession of the property has already been taken by the State, as is evident from the Statute, Section 48 would be inapplicable and the Government in such a situation cannot release the land. This Court while dealing with such a dispute regarding the effect of taking possession by the authorities of the State Government Collector etc. has taken into account several decisions rendered by the Hon’ble Supreme Court of India, that is, Tamil Nadu Housing Board v. A. Viswam, 1996(8) SCC 259 , Balwant Narayan Bhagde v. M.D. Bhagwat and others, 1976(1) SCC 700 ; State of Tamil Nadu and another v. Mahalakshmi Ammal and others, 1996(7) SCC 269 ; General Manager, Telecommunication and another v. Dr. Madan Mohan Pradhan and others, 1995 Supp.(4) SCC 268; Larsen and Toubro Ltd. v. State of Gujarat and others, 1998(4) SCC 387 and P.K. Kalburqi v. State of Karnataka and others, 2005(12) SCC 489 to arrive at this conclusion. 31. In the present case, the respondents have been able to show that the possession of the land in question has already been taken,,the acquisition proceedings have already attained finality, as such the petitioner cannot now assail the entire proceedings for acquisition of land in dispute merely on the ground of non-delivery of award within two years from the date of declaration, that is, notification under Section 6 of the Land Acquisition Act as envisaged by Section 11 of the Land Acquisition Act. There is substance in the arguments of the learned Counsel for the respondents that Section 55 of the U.P.A.E.V. Act applies alongwith other provisions of the Land Acquisition Act as modified and amended by Schedule to the Act. Section 11-A was incorporated in Land Acquisition Act by Parliamentary Act No. 68 of 1984 and thus certain provisions of the Land Acquisition Act were adopted. 32. We have also noted as pointed out by learned Counsel for the respondents, that there is sharp contrast between the language employed in Section 17(3-A) of the Land Acquisition Act and the proviso to Section 6(1) and Section 11-A of the Land Acquisition Act. Thus, latter provisions provides for the consequences in the event of breach or default, the proceeding stand lapsed. However, this has not been provided under Section 17(3-A) of the Land Acquisition Act. Further more it is evident from the notification under Section 32 of the U.P.A.E.V. Act that the provisions of Section 17(1) of the Land Acquisition Act have been applied with. This issue has authoritatively been settled by the Apex Court in Satendra Prasad Jain and others v. State of U.P. and others, AIR 1993 SC 2517 wherein the Apex Court has held that in case provisions of Section 17(1) have been applied, Section 11-A of the Land Acquisition Act will have no application. If possession has been taken over, as the case in hand, the land absolutely vests in the State Government. There is absolutely no provision for divesting any such situation in Land Acquisition Act. 33. Thus be it a case of legislation by reference or incorporation, Section 11-A of the Land Acquisition Act will be out of place if Section 17(1) of the Land Acquisition Act has been applied and possession taken over. In the instant case Section 17(1) has been applied to the notification under Section 32(2) of the U.P.A.E.V. Act possession has been taken over as per record. Therefore, Section 11-A of the Act cannot be said to be attracted to the acquisition of the land in the present case. 34. Clause 2 of the Schedule provides that the notification under Section 28 of the Adhiniyam shall be deemed to be substituted and have the same effect as a notification under Section 4 of the Land Acquisition Act. Therefore, Section 11-A of the Act cannot be said to be attracted to the acquisition of the land in the present case. 34. Clause 2 of the Schedule provides that the notification under Section 28 of the Adhiniyam shall be deemed to be substituted and have the same effect as a notification under Section 4 of the Land Acquisition Act. It further provides that the provisions of Section 5-A of the Land Acquisition Act would be inapplicable to the case of Acquisition of land under the Adhiniyam. Clause 2(2) and 2(3) of the Schedule make similar provisions for a notification under Section 32 of the Adhiniyam. Therefore, a notification under Section 32 of the Adhiniyam shall have the same effect and stand substituted for notification under Section 6 of the Land Acquisition Act. Clause 3 substitutes Sections 17(1) and 17(1-A) of the Land Acquisition Act with a modified Section 17(1). Clause 3(ii) of the Schedule omits Section 17(4) of the Act. Under clause 4 of the schedule, Section 17-A of the Land Acquisition Act is substituted by Section 17 as amended and applicable to the proceedings under the Adhiniyam. 35. From a conspectus of Section 15(k), 16 to 27, 28(1) and 28(2), 30, 31, 32(3), 33, 35, 55, 64(1)(a) and 67 it is amply clear that the Act is not supplemental to the Land Acquisition Act. It is not merely an act for acquisition of land alone, unlike the L.A. Act. It is absolutely clear from Section 15(k) of the Adhiniyam that the acquisition is only ancillary to fructification of schemes, objects and purposes for which Parishad has been established. Therefore, it cannot be said that the Adhiniyam is supplemental to Land Acquisition Act. There are two modes of adoption of a statute by another statute. They are (a) legislation by reference, (b) legislation by incorporation. It is also often called as reference by incorporation. 36. We find substance in the submission of respondents’ Counsel that the difference between the two is very thin and blurred. Broadly speaking, when a particular statute is adopted without any reservation or modification, it is called “legislation by reference”. On the other hand, when a statute is applied in a truncated or modified form, it is branded as legislation by incorporation. Broadly speaking, when a particular statute is adopted without any reservation or modification, it is called “legislation by reference”. On the other hand, when a statute is applied in a truncated or modified form, it is branded as legislation by incorporation. Controversy as to whether provisions of Land Acquisition Act, as amended from time to time, would apply to proceedings under the Adhiniyam is no longer res integra. The issue was first broached in the case of Gouri Shanker Gaur v. U.P. Avas Evam Vikas Parishad, 1994(1) SCC 92 . We find that in the aforesaid case Hon’ble Mr. Justice K. Ramaswami held that incorporation of L.A. Act in the Adhiniyam is a piece of legislation by incorporation. Consequently, L.A. Act as it stood when it was adopted by Adhiniyam would be applicable to the proceedings for acquisition of land under the Adhiniyam. However, Hon’ble R.M. Sahai, J, another member of the Bench had ruled/otherwise. He dubbed it as legislation by reference. Ultimately, both the Judges upheld the notification under Section 32 of the Adhiniyam since the entire project had been completed, building raised and occupied by the individuals. However, in the following subsequent judgments Hon’ble Mr. Justice K. Ramaswami stuck to this stand in Gouri Shankar Gaur (supra) : (1) U.P. Avas Evam Vikas Parishad v. Pushpa Lata Awasthi, 1995(5) SCC 573, (2) Satya Pal and others v. U.P. Avas Evam Vikas Parishad and others, 1997(9) SCC 117 It was held in the aforesaid decisions that Section 11-A of L.A. Act does not apply to proceedings under the Adhiniyam. 37. The judgment in U.P. Avas Evam Vikas Parishad v. Jainul Islam and another, 1998(2) SCC 467 , was delivered by three Judges Bench. Sections 23(2), 28 and 23(1A) of the L.A. Act as amended by Act No. 68 of 1984 were under consideration. The Bench clinchingly and authoritatively pronounced the adoption of the L.A. Act by the Adhiniyam was a piece of ‘legislation by incorporation’ and not by ‘reference’. 38. In para 21, the Hon’ble Judges applied the case of Secretary of State v. Hindustan Co-operative Insurance Society Ltd., AIR 1931 PC 139. The judgment of Privy Council is locus classicus. It has been referred to in almost all the subsequent judgments of the Apex Court. In para 22 of the Jainul Islam case (supra), Gauri Shankar case (supra) has been virtually overruled. The judgment of Privy Council is locus classicus. It has been referred to in almost all the subsequent judgments of the Apex Court. In para 22 of the Jainul Islam case (supra), Gauri Shankar case (supra) has been virtually overruled. The Supreme Court holds that the incorporation of the L.A. Act in the Adhiniyam is ‘reference by incorporation’ and not ‘reference simpliciter. Therefore, subsequent amendments will not be applicable to the proceedings for acquisition of land under the Adhiniyam. However, in paras 25 to 32, it has been held that so far as determination of compensation is concerned, there cannot be any discrimination. In holding so, the Apex Court followed the case of Nagpur Improvement Trust v. Vasant Rao and others, 2002(7) SCC 657 (paras 23, 24, 31, 32, 34 to 50). In para 48 of the Nagpur Improvement Trust case, Jainul Islam has been approved. It has been held that the incorporation of the L.A. Act in the Maharashtra Act, is an instance of ‘legislation by incorporation’. However, in para 44 of the aforesaid case, it has been held that in the matter of determination of compensation, there can be no discrimination. In Bharat Corporation Bank (Mumbai) v. Cooperative Bank Ltd., 2007(4) SCC 685 , (paras 14 to 22) vide para 20, Jainul Islam is approved. In the present case, the petitioners have placed reliance on the case of Girnar Traders v. State of Maharashtra, 2007(7) SCC 555 , paras 3, 67-68, 98 to 108. Petitioners contend on the basis of para 3 of the judgment that the matter has been referred to a larger bench. In doing so, the petitioners have excluded to place last four sentences of the aforesaid judgment. Two Hon’ble Judges differ with Hon’ble Mr. Justice Balasubramaniam. According to them, the question of legislation by incorporation does not arise in the case. They disagree that there is a need for reference. The same is held by them, specifically and categorically, in paras 67 and 68 of the report. In the end, the two Hon’ble Judges had dismissed the appeal. In the remaining paras, the discussion revolves around the interpretation of Section 127 of the Maharashtra Regional Town Planning Act (MRTP Act). Thus, this argument will not rescue the petitioners. Reliance on the Government Order is also misconceived. It is a mere advisory or opinion. In the end, the two Hon’ble Judges had dismissed the appeal. In the remaining paras, the discussion revolves around the interpretation of Section 127 of the Maharashtra Regional Town Planning Act (MRTP Act). Thus, this argument will not rescue the petitioners. Reliance on the Government Order is also misconceived. It is a mere advisory or opinion. However, it is of no avail since it runs diametrically opposite to the law declared by the Apex Court in the cases referred to above. Therefore, in view of Articles 141 and 144 of the Constitution, no credence can be had to the aforesaid Government Order. This argument, therefore, is devoid of merits. 39. The respondents have placed reliance on the following cases also which have been taken into account by us : (1) Bharat Co-operative Bank Ltd. v. Co-operative Bank Employees Union, 2007 ACJ 1601 (SC) (2) State of Maharashtra v. Santh Jogindher Singh Kishan Singh, 1995 Suppl (2) SCC 475 (3) U.P. Avas Vikas Parishad v. Pushpalata Awasthi, 1995(5) SCC 573 (4) Satyapal and others v. UPAVP and others, 1997(9)SCC 117 (5) Savitri Cairae v. UPAVP and others, 2003(6) SCC 25 (6) Sanjeeva Nagar Medical & Health Employees’ Co-operative Housing Society v. Mohd. Abdul Wahab and others, (7) U.P. Jal Nigam Lucknow v. Kalra Properties, 1996(3) SCC 124 (8) Avadh Bihari Yadav v. State of Bihar and others, AIR 1996 SC 122 (9) Prakash v. State of U.P. and another, 1988 AWC 450 (10) Mohd. Shakeel Khan v. State of U.P., AIR 1997 All 20 (11) Brijbhushan Das Bharghav v. State of U.P., 2007 (8) ADJ 497 (DB) (12) Dhanna Devi v. State of U.P., AIR 2002 All 115 . 40. Sri Ravi Kant assisted by Sri Ajit Singh Rana has also brought to the notice of the Court the judgments rendered in the cases of Secretary of State v. HCI Society, AIR 1931 PC 139, Ram Sarup v. Munshi, AIR 1963 SC 553 and Nagpur Improvement Trust v. Vasantrao, (2002) 7 SCC 657 . 41. This Court has taken note of the submission put forth by the learned Standing Counsel for the respondents that most of the land holders have consented to give their land to Government voluntarily and accepted Rs. 800/- per sq.mt. as compensation and also entered into agreement with the concerned authorities. 41. This Court has taken note of the submission put forth by the learned Standing Counsel for the respondents that most of the land holders have consented to give their land to Government voluntarily and accepted Rs. 800/- per sq.mt. as compensation and also entered into agreement with the concerned authorities. The agreement was executed in the presence of the land holders, their representatives and a committee comprising of District Magistrate, Ghaziabad, local member of Parliament, Addl. District Magistrates concerned with land acquisition proceeding, Addl. District Magistrates (Finance and Revenue) and the Executive Engineer U.P. Avas Vikas Parishad. It is admitted case of the petitioners that they have never challenged the notifications issued in furtherance of acquiring the disputed land nor had filed any statutory appeal challenging the notifications and the formal orders for taking possession of the land by the District Magistrate, Ghaziabad. Now, few of the alleged land holders, subsequent purchasers cannot be permitted to take a turn around in the year 2007 and challenge the acquisition proceedings which have already been finalised. 42. The judgments cited by learned Counsel for the petitioners have no application in the present set of facts and circumstances. 43. In view of the above discussion, we find no substance in the writ petition and the same is devoid of merit. The petitions are accordingly dismissed. The interim orders stand vacated. No order as to costs. ————