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2010 DIGILAW 1301 (ALL)

BABOO KHAN v. STATE OF U. P.

2010-04-22

JAYASHREE TIWARI, R.K.AGRAWAL

body2010
JUDGMENT Hon’ble Jayashree Tiwari, J.—The present writ petition has been filed for grant of writ of certiorari for quashing the order dated 28.3.2008 passed by respondent No. 1 and also for quashing the possession letter dated 10.2.1986 and also for a writ of mandamus directing the respondents to accept the amount of compensation awarded to be returned by the petitioner. 2. Briefly stating contentions of the petitioner is that in respect of disputed land proceedings were instituted against the petitioner seeking for declaration of land measuring an area of 5652.6478 Sq. Metres as surplus land with the petitioner. As the same was declared surplus by the respondents vide order dated 26.10.1983 and the State assumed ownership over the said land on 8.2.1986. These proceedings were enunciated ex-parte under the Ceiling Act against the petitioner. Hence the petitioner filed an appeal under Section 33(1) of the Urban Land (Ceiling and Regulation) Act, 1976 which was numbered as Misc. Appeal No. 286 of 1993. The appellate authority stayed the dispossession of the petitioner and after deciding on merit allowed in favour of the petitioner. The matter was remanded back for reconsideration afresh by the competent authority vide order dated 16.11.1995. Against the aforesaid order the State preferred a writ petition on 27.5.1997. The writ petition was dismissed. Against that dismissal order the Special Leave Petition was filed on 17.12.1988 which again was dismissed by the Apex Court. 3. Respondent No. 1 in between issued a notification under Section 4 of the Land Acquisition Act wherein the entire land belonging to the petitioner including the land which formed part of the of the ceiling proceeding as aforesaid was a subject matter of that notification. On 8.2.1990 notification under Section 6 of the Land Acquisition Act was also issued. The declaration under Sections 4 and 6 was challenged before the High Court in writ petition No. 5462 of 1990 which writ petition was allowed on 20.8.1983 and the declaration under Section 6 was quashed. Under section 6 of the Land Acquisition Act the land of the petitioner was shown to be included in the said declaration. Consequently, award was made on 29.2.1992 and on 7.2.2001 which was challenged before Hon’ble High Court and was dismissed by a Division Bench vide order dated 5.1.2002. Under section 6 of the Land Acquisition Act the land of the petitioner was shown to be included in the said declaration. Consequently, award was made on 29.2.1992 and on 7.2.2001 which was challenged before Hon’ble High Court and was dismissed by a Division Bench vide order dated 5.1.2002. The Special Leave Petition was filed before the Hon’ble Supreme Court by the Agra Development Authority and the award was amended as per order and the amended award was published as per order of the Hon’ble Supreme Court. The petitioner’s land which was subject matter of the proceeding under the Ceiling Act was never transferred to the State Government nor any possession with regard to the same was taken by the State Government. It is apparent from the possession certificate dated 30.3.1991. This possession was acknowledged by respondent No. 3 who directed the petitioner that since the compensation has been paid to the petitioner by mistake for the entire land, the same may be refunded by the petitioner alongwith interest for the land measuring 1 Bigha and 5 Biswas which does not form part of the acquisition proceedings. 4. The petitioner approached respondent No. 3 for depositing the said amount but the said amount was not accepted and therefore he approached respondent No. 1 by means of representation and requested respondent No. 1 to release the land in favour of the petitioner and whatever compensation was received by the petitioner was directed to be refunded to the respondent No. 4. through respondent No. 3. The said representation of the petitioner has been rejected by the respondent No. 1. 5. The State Government filed its counter-affidavit denying the averments as made and filed affidavit of Sri Baboo Ram, Under Secretary Awas Evam Shahari Niyojan Department,Government of U.P. While denying the contentions raised in the writ petition it is submitted that in notification under Section 4 of the Land Acquisition Act the petitioner’s plot No. 460 was included and subsequently notification under section 6 was issued. The urgency clause was invoked. The contention that ceiling proceedings were ex-parte proceedings and notice under Section 10(1) was not served is denied. It is contended that due procedure regarding Ceiling Act was followed and at this stage they need not reply. The petitioner has no right, title or interest at present over the plot No. 460 measuring 2 Bigha 1 Biswa and 18 Biswansi. The contention that ceiling proceedings were ex-parte proceedings and notice under Section 10(1) was not served is denied. It is contended that due procedure regarding Ceiling Act was followed and at this stage they need not reply. The petitioner has no right, title or interest at present over the plot No. 460 measuring 2 Bigha 1 Biswa and 18 Biswansi. It is further contended that possession memo dated dated 30.3.1991 shows that possession of total area of plot No. 460 have been handed over to the Agra Development Authority who is at present in actual physical possession over the plot alongwith other plots. The representations of the petitioner dated 12.12.2007 and 26.2.2008 have been duly disposed of vide order dated 28.3.2008 which is annexure 1 to the writ petition. The said representations have been disposed of considering each and every aspect of the matter. The petitioner has failed to make out the case under Section 226 of the Constitution of India. The contention is denied and is liable to be dismissed. 6. Against the averments made in the counter-affidavit, a rejoinder affidavit has been filed on behalf of the petitioner wherein the contentions raised in the counter-affidavit have been denied. It is contended that till date the plot No. 460 is not transferred to the State Government nor any possession was taken. That after quashing of the declaration under Section 6 of the Land Acquisition Act by the High Court fresh declaration has been made on 16.1.1995. The petitioner is still in actual physical possession over the plot No. 460 and the possession was never obtained by the State Government and the excess compensation paid to the petitioner may be refunded with interest for the land in question. Order dated 28.3.2008 is not sustainable in law. 7. Now coming to the main controversy as comes out in the rival submissions made by the parties as to whether the possession taken by the State under emergency clause invoking section 17-A of the Land Acquisition Act by paying 80% of the compensation is completed or whether the contention of the petitioner that since possession is still with him despite the fact that he has received 80% of the compensation and is ready to return the same is sustainable or the process for possession under law is complete or incomplete. Secondly, whether the Government can be compelled to exercise its power as enunciated under Section 48 of the Land Acquisition Act on the ground that the applicant is ready and willing to return the amount of compensation received by him and is praying for the return of his land. 8. In this connection it will be appropriate to go through the scheme as enunciated in the provisions of Land Acquisition Act. Under Section 4 of the Act there is publication of preliminary notification which shows the intention of the appropriate Government to acquire certain lands for public purposes. Under Section 6 a declaration is made of intended acquisition. In the normal course when publication of section 6 is made then the normal procedure followed is that the Collector shall take order for acquisition. Section 7 shows that whenever any land shall have been so declared to be needed for a public purpose or for a company, the appropriate Government or some officer authorised by the appropriate Government in this behalf, shall direct the Collector to take order for the acquisition of the land and thereafter under Section 8 of the Act the land so needed shall be marked out, measured and planned and thereafter under Section 9 public notice shall be given by the Collector to persons interested and then the Collector shall make an inquiry and also then make an award under Section 11 of the Act. Section 11 (A) provides that in normal course such an award shall be made within a period of two years from the date of publication of declaration under Section 6 and in case the award is not made within the stipulated period the acquisition proceedings shall stand lapse and under Section 12 it is provided that award made by the Collector shall become final as between collector and interested persons. The Collector shall give notice of his award to such of the persons interested under sub Section (2) of Section 12 of the Act. Then after competing all the formalities as mentioned and as and when needed under Sections 13, 13-A,14, 15 and 15(A) the award becomes final. The Collector shall under Section 16 exercise his power to take possession. The Collector shall give notice of his award to such of the persons interested under sub Section (2) of Section 12 of the Act. Then after competing all the formalities as mentioned and as and when needed under Sections 13, 13-A,14, 15 and 15(A) the award becomes final. The Collector shall under Section 16 exercise his power to take possession. Section 16 of the Act says like this that when the Collector has made an award under Section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government, free from all encumbrances. In the scheme of the Land Acquisition Section 17 is the Special Powers in cases of urgency. Section 17. Special powers in cases of urgency.—(1) In cases of urgency, whenever the appropriate Government so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in section 9, sub-section (1) take possession of any land needed for a public purpose. Such land shall thereupon vest absolutely in the Government free from all encumbrances. (2) Whenever owing to any sudden change in the channel of any navigable river or other unforeseen emergency, it becomes necessary for any Railway administration to acquire the immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a river-side or ghat station, or of providing convenient connection with or access to any such station, or the appropriate Government considers it necessary to acquire the immediate possession of any land for the purpose of maintaining any structure or system pertaining to irrigation, water supply, drainage, road communication or electricity, the Collector may, immediately after the publication of the notice mentioned in sub-section (1) and with the previous sanction of the appropriate Government enter upon and take possession of such land, which shall thereupon vest absolutely in the Government free from all encumbrances: Provided that the Collector shall not take possession of any building or part of a building under this sub-section without giving to the occupier thereof at least forty-eight hours’ notice of his intention so to do, or such longer notice as may be reasonably sufficiently to enable such occupier to remove his movable property from such building without unnecessary inconvenience. (3) In every case under either of the preceding sub-sections the Collector shall at the time of taking possession offer to the persons interested, compensation for the standing crops and trees (if any) on such land and for any other damage sustained by them caused by such sudden dispossession and not excepted in section 24, and; in case such offer is not accepted, the value of such crops and trees and the amount of such other damage shall be allowed for in awarding compensation for the land under the provisions herein contained. (3A) Before taking possession of any land under sub-section (1) or sub-section (2), the Collector shall, without prejudice to the provisions of sub-section (3),- (a) tender payment of eighty per centum of the compensation for such land as estimated by him to the persons interested entitled thereto, and (b) pay it to them, unless prevented by some one or more of the contingencies mentioned in section 31, sub-section (2), and where the Collector is so prevented, the provisions of section 31, sub-section (2), (except the second proviso thereto,) shall apply as they apply to the payment of compensation under that section. (3B) The amount paid or deposited under sub-section (3A), shall be taken into account for determining the amount of compensation required to be tendered under Section 31, and where the amount so paid or deposited exceeds the compensation awarded by the Collector under section 11, the excess may, unless refunded within three months from the date of the Collector’s award, be recovered as an arrear of land revenue. (4) In the case of any land to which, in the opinion of the appropriate Government, the provisions of sub-section (1) or sub-section (2) are applicable the appropriate Government may direct that the provisions of section 5A shall not apply, and, if it does so direct, a declaration may be made under section 6 in respect of the land at any time after the date of the publication of the notification under Section 4, sub-section (1). Thus the main question involved in the case is to consider in the light of the scheme as enunciated under the land Acquisition Act in the aforesaid quoted sections. It has to be considered whether the contention of the petitioner that he is still in possession of the land is sustainable in the light of the provisions as enunciated. Thus the main question involved in the case is to consider in the light of the scheme as enunciated under the land Acquisition Act in the aforesaid quoted sections. It has to be considered whether the contention of the petitioner that he is still in possession of the land is sustainable in the light of the provisions as enunciated. It is admitted to the petitioner that he has already obtained 80% of the compensation amount and in exercise of the power under Section 17 of the Act there is no denial to the fact that 80% of the compensation has already been tendered and obtained by the petitioner. 9. Now, the question remains to be considered is whether the possession, as alleged by the petitioner, that he is still in possession is sustainable in the eye of law or not. A perusal of Section 16 (2) of the Act clearly indicates that affect of such taking possession as has been mentioned in Section 16(1) may be notified by the Deputy Commissioner. 10. Section 16 of the Land Acquisition Act provides that when the Collector has made an award under Section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government free from all encumbrances. 11. In the present case before us, it is admittedly clear that 80% of the compensation has already been received by the petitioner. In such circumstances, the contention that they are still in possession of the land is not sustainable. The land shall be deemed to have vested in the State absolutely in the Government free from all encumbrances. 12. So far as the contention of the petitioner that he is ready to return the amount received and the Government may be directed to accept from the petitioner the amount of Rs. 2,32,394.71 alongwith interest with respect to the disputed land which was received by the petitioner as compensation and the Government may allow the prayer for withdrawal from acquisition is concerned, in this connection it is obvious from the perusal of Section 48 of Land Acquisition Act which reads as follows : “Section 48. Completion of Acquisition not compulsory, but compensation to be awarded when not completed.—(1) Except in the case provided for in section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken. Completion of Acquisition not compulsory, but compensation to be awarded when not completed.—(1) Except in the case provided for in section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken. (2) Whenever the Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings thereunder, and shall pay such amount to the person interested,together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land. (3) The provisions of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this section.” 13. So the substance which comes out from perusal of this section is that it is the sole discretion of the State Government and the liberty provided to the State Government to withdraw from the acquisition but the Government cannot be compelled or enforced to accept the return amount of the compensation received by the petitioner and to consider and withdraw from the acquisition. No judicial intervention can be made in the domain of the State to apply its discretion or exercise its powers of liberty to withdraw its acquisition. 14. Considering the entirety of the circumstances when already 80% of the compensation has been received by the petitioner and the discretion of the State cannot be compelled in any way, there is no force in the contention of the petitioner. 15. The writ petition appears to be not maintainable and therefore dismissed accordingly. ————