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2009 DIGILAW 3552 (ALL)

PUSHPA SOTI v. STATE OF U. P.

2009-11-20

SUNIL AMBWANI, VIRENDRA SINGH

body2009
JUDGMENT By the Court.—Heard Shri P.N. Saxena, learned counsel for the petitioner. Learned Standing Counsel appears for all the State-respondents. 2. This writ petition was filed on 22nd September, 1993 with prayers to direct the respondents to pay compensation for taking over possession of 0.214 acres of land of plot No. 20 of Village Shehbazpur Khana, Tehsil and District Bijnor along with interest in accordance with the Government Order dated 2.6.1981 (Annexure No. 1) and 16.11.1985 (Annexure No. 2) within a period specified by the Court. 3. Briefly stated the facts of the case given in the writ petition are that in order to construct the East Ganga Canal Project in the year 1982 the Government of U.P. issued notification under Sections 4 and 6 of the Land Acquisition Act, 1894 (in short the Act) on 26.8.1982 and 7.9.1982 respectively, to acquire 4.881 acres of land including 0.577 acres of land of plot No. 20 belonging to the petitioner. The Irrigation Department, however, took possession of a larger area than the are acquired under the Act. A resurvey was made in the presence of the project authorities in which it was found that they have taken over 0.214 acres of the same plot, in excess to the notified area. 4. The petitioner made representation to the State Government and relied upon the Government Orders dated 2.6.1981 and 16.11.1985 in which the State Government took a decision to acquire the land so far as possible by private negotiations and that where the possession is taken before the proceedings of land acquisition are initiated, the land owners should be given 6% interest from the date of possession and if the compensation is not paid within one year from the date on which the notification under sub-section (1) of Section 4 is published, 15% interest will be payable. 5. It is stated that when it was realised that the Irrigation Department has taken over 0.214 acres of land in excess in plot No. 20, a notification under sub-section (1) of Section 4, with the opinion of the State Government that sub-section (1) of Section 17 applies to the land, invoking sub-section (4) of Section 17 was issued on 18th August, 1990 for public purpose, namely for construction of Gang Distributory from Km.13.880 to Km. 13.980 under EGC Project in Distt. Bijnor. 13.980 under EGC Project in Distt. Bijnor. This notification, however, was not followed by publication of the notification under Section 6. 6. The Special Land Acquisition Officer, Bijnor made an award of compensation for 4.881 acres of land on 23.9.1986 acquired by notification under Section 4 (1) dated 26.8.1982 and notification under Section 6 dated 7.9.1982 of which the possession was taken on 8.9.1983. There was no references to the excess land in this award. 7. On a representation made by the petitioner for compensation for the excess land taken over by the Irrigation Department in Plot No. 20 the Lekhpal in the office of the Special Land Acquisition Officer, Bijnor submitted a report that he has carried out the spot inspections in pursuance to the orders of the Executive Engineer, Purvi Ganga Nahar-5 Najibabad dated 10.12.1987 and has found according to the pillars on the spot after taking out 0.038 acres of plot No. 23-24 and 0.065 acres of plot No. 28-22, an area of 0.791 acres of plot No. 20 is determined for which compensation has been paid only for 0.577 acres and in this manner an area of 0.214 acres in possession of Irrigation Department is also to be taken. The petitioner thereafter made a representation on 10.7.1991 on which the Superintending Engineer sought permission of the District Magistrate, Bijnor on 1.11.1991 to purchase the excess land from the petitioner. It is stated that the notification under Section 6 dated 10.10.1991 was received in the office of the Special Land Acquisition Officer, Bijnor on 21.10.1991, but that it could not be published in the official gazette and the newspapers, as more than one year had lapsed. Thereafter the petitioner made several representations but no effective reply was given, giving rise to this writ petition. 8. Before proceeding to consider the defence taken by the State Government, a mention may be made to the Joint Inspector Report of Naib Tehsildar, Land Acquisition, Bijnor and Upper Tehsildar, Bijnor dated 22.4.1992 in which it was confirmed that out of 0.741 acres of plot No. 20 only 0.577 has been acquired and that remaining 0.214 acres has not been acquired so far. 9. In pursuance to the directions issued by the Court from time to time, several counter-affidavits have been filed in the writ petition. 9. In pursuance to the directions issued by the Court from time to time, several counter-affidavits have been filed in the writ petition. The details of these counter-affidavits are given as below : (1) The counter-affidavit of Shri M.L. Yadav, Special Land Acquisition Officer, Bijnor dated 2.12.1993 was filed on 3.12.1993. (2) The supplementary counter-affidavit of Shri Ashok Kumar, District Magistrate, Bijnor reiterating the facts stated in the counter-affidavit of Shri R.R. Agrawal, Executive Engineer, East Ganga Canal, Construction Division-4, Bijnor dated 17.10.1995 was filed on 31.10.1995. (3) Supplementary counter-affidavit of Shri R.R. Agrawal, Executive Engineer, Eastern Ganga Canal, Construction Division-4, Bijnor sworn on 10.12.1995 was filed along with the affidavit of the District Magistrate on 19.12.1995. (4) The counter-affidavit of Shri N.K. Gupta, Engineer, Irrigation Department, Bijnor sworn on 15.12.1993 was filed on 20.12.1993. 10. In all these counter-affidavits filed to clarify the doubts raised in the documents filed by the petitioner of the possession of excess land of 0.214 acres in plot No. 20, all the respondents affirming the affidavits have denied that any excess area was taken over by the Irrigation Department. It is stated in para 5 and 6 of the counter-affidavit of Shri R.R. Agrawal that a proposal for acquiring land measuring 0.214 acres was sent to the State Government. The notification under Section 4 was published but the notification under Section 6 could not be published as the proceedings had lapsed. The excess land, however, was never acquired nor purchased by the Irrigation Department. The petitioner is still in possession of the area alleged to be taken over by the Irrigation Department. The Irrigation Department has only taken over 0.577 acres of land in plot No. 20 covered under the notification. Para 5 and 6 of the counter-affidavit of Shri R.R. Agrawal are quoted as below : “5. That thereafter Irrigation Department had felt need of some more land of this Plot No. 20 and the proposal for the land measuring 0.214 acre was sent to the State Government & Notification under Section 4 of the Land Acquisition Act was published but declaration under Section 6 of Land Acquisition Act could not be published within one year and consequently the entire proceedings of acquisition elapsed and even the notification under Section 4 of the L.A. Act and become infructuous. This Extra Land could not be purchased by sale even by private negotiations and thus acquisition of this extra land of 0.214 Acres of Plot No. 20 of the petitioner was neither acquired by the State Government nor purchased by sale by the Irrigation Department and which is still in possession of the petitioner and only an area of 0.577 Acre land of plot No. 20 is in possession of the Irrigation Department as acquired by the State Government and the Canal has been constructed only within this area and the payment of compensation for this land has already been paid to the petitioner and no land in excess of it is in possession of the Irrigation Department and so no question of any payment of compensation with interest for any extra land of 0.214 acre arises at all and thus the writ has no force. 6. That it is also submitted that before coming to this Hon’ble Court, the petitioner had also moved various applications before District Magistrate, stating therein that the Irrigation Department has also taken possession on this extra land measuring 0.214 acre out of plot No. 20, where upon the matter was referred to the ‘Pariwad Samiti’ who had made an enquiry and Shri M.L. Yadav, Special Land Acquisition Officer, Bijnor himself went on spot and had taken measurements of the land and had found that the Canal exists only in an area of 0.577 acre and remaining land including 0.214 acre is still in possession of petitioner himself and had submitted his report dated 15.4.1993 to the District Magistrate, for necessary consideration and there upon the ‘Pariwad Samiti’ found no encroachment on any extra land and found only 0.577 acre land of plot No. 20 is in possession of Irrigation Department, the compensation of which has already been paid to the petitioner. Even at present, the Canal exists only with in an area of 0.577 acre and the remain area of the land is still in possession of the petitioner, and thus the allegations of the petitioner that the excess area of 0.214 acre has been taken by the respondents is absolutely false and baseless and the petitioner is not entitled for any compensation or interest and the writ is liable to be dismissed with cost.” 11. In the rejoinder affidavit of Shri Anil Sharma, son in law of the petitioner, it is stated that the Superintending Engineer himself had written a letter to the District Magistrate to purchase the excess area form the petitioner after the negotiations failed. The petitioner made representation to the Grievance Committee in which Shri R.R. Agrawal, Executive Engineer asserted that since earlier survey was not made in his presence, therefore, fresh measurements may be taken. The Grievance Committee gave notice to the petitioner and respondent No. 4 but that at the time of measurement only Tehsildar, Bijnor and Naib Tehsildar in the office of respondent No. 5 were present. One Uma Kant, Ziledar in Canal Department and his representative were present. In the survey it was found that excess area 0.214 acres of Plot No. 20 has been occupied by the canal and now false plea has been taken. It is stated that for the purposes of misleading the Court one sentence has been added in the report dated 15.4.1993 that on the spot possession of the department was not found over 0.214 acres of land. The remark has been manipulated by the respondents. It is stated that width of the canal is 36 meters and that map has been fraudulently prepared. It was never the case of the department that the width of the canal over other plots is 36 meters while on plot No. 20 it is 27.14 meters. Shri Anil Sharma has reiterated that total 0.791 acres of plot No. 20 has been occupied by the canal but only an area of 0.577 acres has been acquired and that compensation for 0.214 acres is still due. 12. The writ petition was filed that the averments that the department has taken over 0.214 acres in plot No. 20, in excess, for construction of canal and that reliance was placed upon the survey report of the Lekhpal and joint survey report of Naib Tehsildar in the office of the Land Acquisition Officer and Upper Tehsildar, Bijnor. The department, however, has denied in the affidavits of Shri M.L. Yadav, Special Land Acquisition Officer, Gijnor; Shri R.R. Agrawal, Executive Engineer, Eastern Ganga Canal Construction Division-4 Bijnore and Shir N.K. Gupta, Engineer Irrigation Department, Bijnor. The affidavit of Shri R.R. Agrawal has been reiterated by Shri Ashok Kumar, the then District Magistrate, Bijnor. The department, however, has denied in the affidavits of Shri M.L. Yadav, Special Land Acquisition Officer, Gijnor; Shri R.R. Agrawal, Executive Engineer, Eastern Ganga Canal Construction Division-4 Bijnore and Shir N.K. Gupta, Engineer Irrigation Department, Bijnor. The affidavit of Shri R.R. Agrawal has been reiterated by Shri Ashok Kumar, the then District Magistrate, Bijnor. All the respondents have relied upon the resurvey report of the Grievance Committee. Shri M.L. Yadav, Special Land Acquisition Officer, Bijnore had himself visited the spot. He had taken measurements of the land and had found that canal exist only on the area of 0.577 acres and that remaining land is still in possession of the petitioner himself. 13. The notification under Section 4 for proposed acquisition of the excess land and the initial report of Tehsildar is not conclusive proof of the possession of the Irrigation Department, or construction of canal over the excess land. The notification under Section 4 appears to have been based upon survey report of the Lekhpal and was only a proposal. The notification under Section 6 was not published. On resurvey it was found that excess land was not taken over and that petitioner is still in possession over the alleged excess land. The petitioner has failed to prove that any excess land was acquired of which the compensation is required to be paid to him. The affidavits of the Executive Engineer, Irrigation Department, Special Land Acquisition Officer, Bijnor and the District Magistrate are based upon the resurvey report in which measurements were carried out in the presence of the Special Land Acquisition Officer. 14. The writ petition is dismissed. ————