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2009 DIGILAW 8 (ALL)

MAKHAN LAL v. DISTRICT MAGISTRATE KHERI

2009-01-05

ABHINAVA UPADHYA, PRADEEP KANT

body2009
ABHINAVA UPADHYA, J. This is an application for recall of the order dated 6. 11. 06, by means of which, the writ petition has been dismissed by a Division Bench of this Court after observing that the construction of the Airport approach road in Lakhimpur Kheri from the existing road, has already been completed as per the information given by the Standing Counsel. 2. The writ petition was of the year 1996, in which counter affidavit was filed by the State in the year 1996 itself, but no rejoinder affidavit has been filed by the petitioners. The counsel for the petitioners also did not appear on the date fixed. 3. The Division Bench passed the aforesaid order as per the statement given by the learned Standing Counsel, which appears to have been made on the basis of the allegations made in the counter affidavit, particularly in paragraphs 14 and 15 of the counter affidavit. 4. Learned counsel for the State Sri Krishna Chandra has rightly objected to the prayer for recall of the order, saying that the petitioners did not file any rejoinder affidavit to the counter affidavit, which was filed in the year 1996 itself and the statement of the Standing Counsel was based on the averments made in the counter affidavit, which cannot be rebutted nor can be allowed to be rebutted by moving an application for recall of the order alongwith the supplementary affidavit filed today. He further says that the application for recall of the order would not be maintainable in the facts and circumstances of the case where the Court has decided the dispute basing its observation on the pleadings of the parties. 5. This application of recall has been mainly moved on the ground that the information given by the Standing Counsel that the Airport approach road has been constructed was not correct. 6. In support of the aforesaid plea, in the supplementary affidavit filed today, certain correspondence, namely, the letter dated 5. 7. 2008 written by the Additional District Magistrate, Kheri to the Sub Divisional Magistrate, Balia and Executive Engineer, Public Works Department, saying that the incomplete work of the approach road be completed. 7. Submission is that since the approach road has not yet been completely constructed and the writ petition has been dismissed on the assumption that the said construction has been completed, the order deserves to be recalled. 8. 7. Submission is that since the approach road has not yet been completely constructed and the writ petition has been dismissed on the assumption that the said construction has been completed, the order deserves to be recalled. 8. The order of dismissal of writ petition has been passed on the basis of material, which was before the Court on the date of passing of the order and may be that the work of construction of the approach road was not completed on that date, but the fact remains that in the counter affidavit filed by the State, in paragraph 6, it has been stated that the proposal for requisitioning 3. 39 acres of land has already been forwarded on 12. 2. 1996 and 13. 2. 1996 and that the Airport approach road was being constructed under the unemployment scheme and the petitioners were not entitled for any compensation, even if, their land was to be used for the purpose of the said approach road. The aforesaid fact has been reiterated in paragraph 8 of the counter affidavit. 9. In another paragraph, which has been wrongly numbered in the counter affidavit, which should have been paragraph 9, it has been categorically stated that the work of approach road to the Airport was being done on the old sector road, but since the petitioners and many other persons have encroached upon the old sector road, therefore, they had to vacate or leave the said road. The fact of making encroachment by the petitioners and other persons has been reiterated in wrongly numbered paragraph 7 of the counter affidavit, which should have been paragraph 12. 10. Further it has been stated and clarified in wrongly numbered paragraph 9 of the counter affidavit, which should have been paragraph 14, that whatever land has come in the construction of the approach road while widening the said road, the proceedings for acquisition and payment of compensation of such land are also in progress. These averments made in the counter affidavit were not disputed before the Court when the matter was decided and even today when the petitioners had taken liberty of filing supplementary affidavit, the said facts have not been disputed nor controverted, only a statement has been made that the authorities are negotiating in respect of compensation. 11. These averments made in the counter affidavit were not disputed before the Court when the matter was decided and even today when the petitioners had taken liberty of filing supplementary affidavit, the said facts have not been disputed nor controverted, only a statement has been made that the authorities are negotiating in respect of compensation. 11. In view of the specific allegation of the petitioners that the approach road has not yet been fully constructed, we though recall the aforesaid order dated 6. 11. 2006, but on the pleadings aforesaid, proceed to decide the writ petition on merits. 12. The approach road to the Airport in the border area as stated in the counter affidavit, may be a necessity and an essential requirement and such approach may be having a strategic value in the national interest, any interference by this Court in laying down such an approach road would not be required. 13. In view of the specific case of the respondents in the counter affidavit, that the approach road was being made on the old sector road and the petitioners and many more persons like them have encroached upon certain area, therefore, they had to vacate or leave the said road and in case there is any encroachment, they would not be entitled for any compensation, they cannot have any grievance with respect to their eviction from the land which does form part of the old sector road. 14. The proceedings for acquisition and payment of compensation for the land which does not form part of the old sector road, since were already in progress when the counter affidavit was filed, we do not find any reason as to why appropriate steps would not be taken with respect to the land of the petitioners if it does not fall on the old sector road and has been used for the purpose of construction of the approach road may be after acquisition or requisition or even without acquisition or requisition. 15. We thus do not find any merit in the writ petition in so far it challenges the construction of the approach road on the plea that the petitioners land is being used without acquisition or requisition of the same. 16. 15. We thus do not find any merit in the writ petition in so far it challenges the construction of the approach road on the plea that the petitioners land is being used without acquisition or requisition of the same. 16. In view of the statement of fact made in the counter affidavit that the approach road was being made on the old sector road and the petitioners and many more persons like them have encroached upon certain area, therefore they are not entitled for any compensation, we do not find any reason to take any exception to the said action of the State Government. 17. In so far the plea of payment of compensation is concerned, it is the settled law that in case the land of any person is acquired for any public purpose or it is obtained by negotiation in writing, compensation has to be paid. 18. In view of the own stand of the State that the proposal for acquisition and paying compensation to such persons whose land has been used or is likely to be used was under consideration, we do not find any reason to issue any direction in this regard. However, in view of the clear stand taken by the State Government, we expect that if any portion of the land of the petitioners is used for the purpose of construction of the approach road as per their own case, they would be paid adequate amount of compensation, as may be determined under law. 19. The writ petition is disposed of accordingly. .