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2014 DIGILAW 1377 (ALL)

ASHOK KUMAR v. STATE OF U. P.

2014-04-29

NAHEED ARA MOONIS, VINEET SARAN

body2014
JUDGMENT By the Court.—The case of the petitioners is that their land was acquired by notifications dated 28.1.1994 and 10.11.1994 issued under Sections 4 and 6 respectively of the Land Acquisition Act, 1894. The objections to the notification issued under Section 9(1) of the Act of 1894 were filed by the petitioners on 30.7.1997, which was after issuance of the notification under Section 6 of the Act of 1894. The award was passed on 28.4.2007 and as per the award the possession of the land had been taken on 29.6.1999. 2. The petitioners have now, in the year 2014, filed this writ petition with the prayer for a direction in the nature of mandamus commanding the respondents to declare the notification dated 28.2.1994 issued under Section 4 of the Act of 1894 to have lapsed and quash all the proceedings initiated on the basis of the same keeping in view of the provisions contained under Section 11(A) of the Act of 1894 and under Section 24(2) of the Right to Fair Compensation and Transparency under the Land Acquisition (Rehabilitation and Resettlement) Act, 2013 with regard to the acquisition of Plot No. 116-M measuring 2 bighas 7 biswa 10 biswansi situated in village Sadarpur, Pargana & Tehsil Dadri, District Gautam Budh Nagar. A further prayer has been made for a direction to the respondents not to demolish the construction of the petitioners situated over the land in question or dispossess the petitioners from the same. 3. We have heard Sri V.M. Zaidi, learned Senior Counsel assisted by Sri M.J. Akhtar, learned counsel for the petitioners as well as learned Standing Counsel appearing for the State respondent Nos. 1 and 2 and Sri Shivam Yadav, learned counsel for the contesting respondent No. 3 and have perused the record. With consent of learned counsel for the respondents, we are disposing this petition at this stage without calling for a counter-affidavit. 4. The submission of the learned counsel for the petitioners is that though the notifications were issued in the year 1994 and award passed on 28.4.2007, yet possession of the plot in question has not been taken from the petitioners. 4. The submission of the learned counsel for the petitioners is that though the notifications were issued in the year 1994 and award passed on 28.4.2007, yet possession of the plot in question has not been taken from the petitioners. They have thus prayed that they would be entitled to the benefit of Section 11-A of the Act of 1894, which provides that the award under Section 11 shall be made within two years from the date of publication of the declaration and if no award is made within that period, the entire proceedings for acquisition of the land shall lapse. Learned counsel for the petitioners has thus submitted that since the award was not passed within two years and possession, according to the petitioners, has not yet been taken, the petitioners would be entitled to the benefit of Section 11-A of the Act of 1894. 5. The other submission of the learned counsel for the petitioners is that they would be entitled to the benefit of Section 24 (2) of the Act of 2013 as the award under Section 11 has been passed more than five years prior to the commencement of the Act of 2013 (which come into effect from 1.1.2014) and physical possession of the land in question has not yet been taken from the petitioners nor the petitioners have been paid any compensation. In the submission of the learned counsel for the petitioners, the proceedings for acquisition would thus lapse on this ground. 6. Sri Shivam Yadav, learned counsel for the contesting respondents has raised a preliminary objection that the petitioners have approached this Court after nearly twenty years of the acquisition and in the absence of any explanation for the delay, this petition should be dismissed on the ground of laches. He submits that the petitioners have never filed any application for grant of benefit under Section 11-A and at such a late stage, the request with regard to grant of such benefit under the said provisions may not be directed. As regards the benefit of Section 24(2) of the Act of 2013, it is contended that since the possession has already been taken in the year 1999, the petitioners would not be entitled to the benefit of the said Section also. 7. As regards the benefit of Section 24(2) of the Act of 2013, it is contended that since the possession has already been taken in the year 1999, the petitioners would not be entitled to the benefit of the said Section also. 7. Having carefully considered the submissions of the learned counsel for the parties, we are of the opinion that since the land was acquired in the year 1994 and as no application has ever been filed by the petitioners for grant of the benefit of Section 11-A of the Act of 1894, the petitioners would not be entitled to the benefit of said provision especially when there is not a single word to explain as to why the petitioners are approaching this Court for a gap of 20 years. A writ of mandamus is to be issued only when a party is vigilant with regard to his right and approaches the Court within a reasonable time, and not after a gap of two decades. As such, the prayer for grant of benefit under the provision of Section 11-A of the Act of 1894 is rejected. 8. As regards, the other prayer of the petitioners for grant of benefit under the provision of Section 24(2) of the Act of 2013 is concerned, we are of the opinion that before issuing a mandamus for such relief, it would first be necessary for the petitioners to approach the authority concerned for grant of such relief. It is only when a party has approached the authority concerned for grant of such relief and the authority does not consider the same within a reasonable time, then only a mandamus deserves to be issued. 9. Learned counsel for the petitioners states that the case of the petitioners is fully covered under Section 24(2) of the Act as admittedly the award has been passed in the year 2007, which is more than five years from the date of commencement of the Act of 2013. It has also been contended that since the petitioners are still continuing in actual physical possession over the plot in question and the compensation has also yet not been paid to them, the acquisition proceedings shall be deemed to have lapsed. 10. It has also been contended that since the petitioners are still continuing in actual physical possession over the plot in question and the compensation has also yet not been paid to them, the acquisition proceedings shall be deemed to have lapsed. 10. Since the same involves disputed questions of fact, especially as to whether the possession has been taken from the petitioners or not, we would not be inclined to determine the same in writ jurisdiction, as for deciding such issues, the parties will have to lead evidences, which cannot be done in writ jurisdiction under Article 226 of the Constitution of India. Even otherwise, it is for the petitioners to first approach the respondents for grant of such benefit and if such benefit is denied to the petitioners or their application in this regard is not decided within a reasonable time, then alone this Court can consider the claim of the petitioners. 11. Accordingly, with regard to the claim of the petitioners for granting benefit under Section 24(2) of the Act of 2013, we direct that in case such application claiming benefit under Section 24(2) of the Act of 2013 is filed by the petitioners before the respondent No. 1-State of U.P. through Secretary, Industrial Development Department, Lucknow within one month from today alongwith certified copy of this order, the same shall be considered and decided by the said respondent No. 1 or any other competent Officer duly authorized by him in accordance with law by reasoned and speaking order, as expeditiously as possible, preferably within a period of three months from the date of filing of the same. The respondent No. 1 shall, before passing a final order on the application of the petitioners, give opportunity of hearing to the petitioners as well as the respondent No. 3 (Chief Executive Officer/Secretary, New Okhla Industrial Development Authority (NOIDA), District Gautam Budh Nagar) and other concerned parties, if there be any. 12. Till the decision on the application of the petitioners, the parties shall maintain status quo with regard to possession over the plot in question. However, passing of this order will not entitle the petitioners to take possession of the plot in question if they have already been dispossessed.ýÿ 13. With the aforesaid observations/directions, this writ petition is finally disposed of. No order as costs.