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2010 DIGILAW 3265 (ALL)

Anupam Kaushik v. State of U. P. and Others

2010-10-21

ASHOK BHUSHAN, VIRENDRA SINGH

body2010
By The Court—Heard Sri V. Singh, learned counsel for the petitioner and Sri Ramesh Upadhyaya, learned counsel for the respondents.2. By this writ petition, petitioner has prayed for quashing the notification dated 9.8.2004 issued under Section 4 of the Land Acquisition Act, 1894 and the notification dated 3rd August, 2005 issued under Section 6 of the Land Acquisition Act, 1894 regarding Plot Nos. 333/1 & 350/2 situated at village Kishanpur, Pargana & Tehsil Koil, District Aligarh area 192.28 Sq. meter.3. The notifications which were issued in the year 2004 and 2005 are sought to be challenged after more than 5 years.4. The notifications having been issued in the year 2004 and 2005, the writ petition is highly barred by time. However, to meet the aforesaid, learned counsel for the petitioner raised an additional submission that by virtue of Section 11 A, the award having not been given within two years, the acquisition has lapsed.5. Sri Ramesh Upadhyaya, learned counsel appearing on behalf of the respondents has contended that Section 11 A has no application in the present case since Sub-section 1 & 4 of Section 17 of the Act was invoked and possession was taken on 17.12.2005.6. We have considered the submission of the parties and perused the record.7. The only thing which is to be considered in the writ petition is the challenge of the petitioner on the basis of Section 11 A. It is well settled by catena of decisions that Section 11 A has no application when the provisions of Sub-section 1 & 4 of Section 17 has been invoked. A Division Bench of this Court in a recent judgment passed in Writ Petition No. 53061 of 2010, Harsh Bansal Vs. State of U.P. decided on 30th September, 2010, following the judgment of the Apex Court in the case of Satendra Prasad Jain & others v. State of U.P. and others, reported in 1993 (4) SCC, 369, has laid down the following:-“Learned counsel for the petitioner submits that no award having yet been prepared which information has been provided by letter dated 10/8/2010, under the Right to Information Act, the acquisition has lapsed under Section 11-A of the Act. The present is a case, where Section 17 has been invoked while issuing notification under Section 4 of the Act, thus issue is not res-integra.The Division Bench of this Court in Mahendra Singh & Ors v. State of U.P. & Ors, 2002 (2) AWC 1629 , has laid down that where urgency provision under Section 17 has been invoked and the possession has been taken, the acquired land vests in the State and the provision of Section 11-A of the Act would not apply. Following was laid down in para 15.“15.It is well-settled that where urgency provision of Section 17 of the Act has been invoked and possession has been taken, the acquired land vests in the State free from all encumbrances and the provisions of Section 11A of the Act would not apply. See Satendra Prasad Jain Vs. State of U.P., AIR 1993 SC 2517 ; Awadh Behari Yadav Vs. State of Bihar, 1995 (3) AWC 1201 (SC) (NOC): AIR 1996 SC 122 and Allahabad Development Authority Vs. Nasir-ur-Zaman, 1997 (1) AWC 153 (SC): 1996 (6) SCC 424 . In this view of the matter, we do not find substance in the contention raised on the basis of Section 11A of the Act.”8. The Apex Court had also occasion to consider the above submission in 1993 (4) SCC 369 , Satendra Prasad Jain & Ors. v. Sate of U.P. & Ors. In the said case it was held by the Apex Court that Section 11-A can have no application to cases of acquisition under Section 17 of the Act. Following was laid down in paragraph 15.“15. Ordinarily, the Government can take possession of the land proposed to be acquired only after an award of compensation in respect thereof has been made under Section 11. Upon the taking of possession the land vests in the Government, that is to say, the owner of the land loses to the Government the title to it. This is what Section 16 states. The provisions of Section 11-A are intended to benefit the land owner and ensure that the award is made within a period of two years from the date of the Section 6 declaration. This is what Section 16 states. The provisions of Section 11-A are intended to benefit the land owner and ensure that the award is made within a period of two years from the date of the Section 6 declaration. In the ordinary case, therefore, when Government fails to make an award within two years of the declaration under Section 6, the land has still not vested in the Government and its title remains with the owner, the acquisition proceedings are still pending and, by virtue of the provisions of Section 11-A, lapse. When Section 17(1) is applied by reason of urgency, Government takes possession of the land prior to the making of the award under Section 11 and thereupon the owner is divested of the title to the land which is vested in the Government. Section 17 (1) states so in unmistakable terms. Clearly, Section 11-A can have no application to cases of acquisitions under Section 17 because the lands have already vested in the Government and there is no provision in the said Act by which land statutorily vested in the Government can revert to the owner.”Thus, the submission of the petitioner that the acquisition has lapsed under Section 11-A cannot be accepted.”9. Petitioner himself has filed copy of the information supplied under the Right to Information Act as annexure-8 to the writ petition which contained the information that the possession was taken on 27.12.2005.10. In view of the above, we are of the view that in the present case Section 11 A has no application, submission of the petitioner with regard to application of Section 11 A is misconceived.11. With the above observations, the writ petition is dismissed.(Petition dismissed)_____________