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2015 DIGILAW 275 (ALL)

Nabi Ahmad v. State of U. P.

2015-02-11

KRISHNA MURARI, SHASHI KANT

body2015
JUDGMENT Krishna Murari and Shashi Kant, JJ. 1. We have heard learned Counsel for the petitioner and learned Standing Counsel for the State respondents. Factual matrix of the case giving rise to the dispute are as under: Predecessor-in-interest of the petitioners was 'bhumidhar' of Khasra plots No. 158, 191, 205, 206, 242, 478, 495/2 and 503 situate in village Chakbaboora Alimabad, Pargana Arail, Tehsil Karchana, district Allahabad. Notification under section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as the 'Act, 1894') for acquisition of the said plots alongwith other parcel of land was published on 6.6.1983. Declaration under section 6 of the Act was published on 16.8.1983. The State Government took possession of the land on 2.4.1985. Though an award was made in respect of other parcel of the land acquired but no award was made in respect of the land of the predecessor of the petitioners. Predecessor-in-interest of the petitioners moved an application on 28.4.1998 before the Special Land Acquisition Officer, Nagar Mahapalika, Allahabad and prayed for making award and payment of compensation. In the meantime, predecessor-in-interest of the petitioners died and his rights were inherited by them. Various representations were also made in this regard by the petitioners till 2007. However, when no decision was taken, the petitioners approached this Court by filing writ petition No. 46724 of 2007. A Division Bench of this Court disposed of the writ petition vide order dated 5.1.2010 by passing the following-orders: "The case of the petitioners is that though the land of the petitioners has been acquired under the land Acquisition Act but no compensation has been paid and the proceeding for making compensation is pending before the S.L.A.O. From 1998 onwards. A Division Bench of this Court disposed of the writ petition vide order dated 5.1.2010 by passing the following-orders: "The case of the petitioners is that though the land of the petitioners has been acquired under the land Acquisition Act but no compensation has been paid and the proceeding for making compensation is pending before the S.L.A.O. From 1998 onwards. Therefore, we dispose of the writ petition with a direction upon such authority to dispose of the application for compensation within a period of one month from the date of communication of this order positively in accordance with law after giving opportunity of hearing to the petitioners." In pursuance of the order passed by this Court, the representation of the petitioners was considered and vide order dated 22.6.2010 passed by the Special Land Acquisition Officer, Nagar Mahapalika, Allahabad, the claim of the petitioners for making award and paying compensation was rejected on the ground that plots belonging to the petitioners was subject-matter of proceeding under the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the 'Ceiling Act') and was declared surplus, as such, there was no justification to include the said land in the award. 2. Learned Counsel for the petitioners contended that since the proceeding under the Ceiling Act, 1976 was initiated subsequent to declaration under section 6(1) of the Act, 1894 and the possession of the said plots was never taken by the authorities under the Ceiling Act and even before the land came to be vested in the State, in view of the acquisition proceedings, the ceiling proceedings were redundant and could not constitute a ground to deny declaration of the award in respect of the said land and to pay compensation. 3. In reply, learned Standing Counsel contended that since the land was declared surplus in the hands of the petitioners, as such, they are not entitled to any compensation and at best they can be held entitled for payment of compensation under the Ceiling Act. 4. We have considered the rival submission and perused the records. 5. A supplementary-affidavit has been filed by the petitioners annexing therewith the copy of the order sheet of Case No. 2040, State v. Nawab Ahmad, which goes to show that notice under section 9 of Ceiling Act was sent to the petitioners on 22.3.1981 and vide ex parte order dated 8.5.1981 an area measuring 32050.83 sq. 5. A supplementary-affidavit has been filed by the petitioners annexing therewith the copy of the order sheet of Case No. 2040, State v. Nawab Ahmad, which goes to show that notice under section 9 of Ceiling Act was sent to the petitioners on 22.3.1981 and vide ex parte order dated 8.5.1981 an area measuring 32050.83 sq. meter was declared surplus in the hands of the petitioners and it was further directed that proceedings under section 10(1) of the Ceiling Act may be taken. Document filed as Annexure-2 to the supplementary affidavit goes to show that notice under section 10(1) of the Ceiling Act was published on 23.11.1985 and the order under section 10(3) of the Ceiling Act was published on 20.5.1986 and notification under section 10(5) of the Ceiling Act was published on 21.2.1987. It has been categorically alleged in the writ petition that publication of notification under section 4(1) of the Act, 1894 was made on 4.6.1983 and declaration under section 6 of the Act, 1894 was published on 16.6.1983. The factual aspect asserted in the writ petition and the supplementary affidavit are not denied in the counter-affidavit filed on behalf of the State respondents. 6. The Ceiling Act contains elaborate procedure for determination of the vacant land in excess of the ceiling limit through quasi judicial process. The owner of the land is required to file a statement under section 6 on the basis of which the competent authority prepares a draft statement as regards the area in the hands of the land owners in excess of the ceiling limit, which is to be served upon the person concerned, who has been vested with a right under section 8 of the Ceiling Act to file objection against the draft statement. The competent authority after giving a reasonable opportunity of hearing to the objector is required to decide the objections. After the disposal of the objection a final statement is prepared by the competent authority under section 9 and again such statement is required to be served on the landholders, who is vested with a further right to file objection. After service of the statement on the landholders under section 9, the competent authority has to take action under section 10 of the Ceiling Act. Sub-section (1) to (3) of section 10 of the Ceiling Act, which are relevant, are quoted below: "10. After service of the statement on the landholders under section 9, the competent authority has to take action under section 10 of the Ceiling Act. Sub-section (1) to (3) of section 10 of the Ceiling Act, which are relevant, are quoted below: "10. Acquisition of vacant land in excess of ceiling limit.--(1) As soon as may be after the service of the statement under section 9 on the person concerned, the competent authority shall cause a notification giving the particulars of the vacant land held by such person in excess of the ceiling limit and stating that-- (i) such vacant land is to be acquired by the concerned State Government; and (ii) the claims of all person interested in such vacant land may be made by them personally or by their agents giving particulars of the nature of their interests in such land, to be published for the information of the general public in the Official Gazette of the State concerned and in such other manner as may be prescribed. (2) After considering the claims of the persons interested in the vacant land, made to the competent authority in pursuance of the notification published under sub-section (1), the competent authority shall determine the nature and extent of such claims and pass such orders as it deems fit. (3) At any time after the publication of the notification under sub-section (1) the competent authority may, by notification published in the Official Gazette of the State concerned, declare that the excess vacant land referred to in the notification published under sub-section (1) shall, with effect from such date as may be specified in the declaration, be deemed to have been acquired by the State Government and upon the publication of such declaration, such land shall be deemed to have vested absolutely in the State Government free from all encumbrances with effect from the date so specified. (4) .................. (5) .................. (6) ................." 7. Under the provisions of Act, 1894, the acquisition is complete when the possession of the land is taken by the Government either under section 16 or sub-section (1) of section 17 of the Act. From the date on which the possession of the land is taken by the Government, the land owner is divested to the title of the land so acquired and the land stands vested in the Government free from all encumbrances. From the date on which the possession of the land is taken by the Government, the land owner is divested to the title of the land so acquired and the land stands vested in the Government free from all encumbrances. Sections 16 and 17 of the Act, 1894, which are relevant, are quoted below: "16. Power to take possession.--When the Collector has made an award under section 11, he may take possession of the land, which thereupon [vest absolutely in [Government], free from all encumbrances. 17. Special powers in cases of urgency.--(1) In cases of urgency, whenever the [appropriate Government] so directs, the Collector, through 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 riverside 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." 7. Undisputed factual position, as it emerges out from the pleadings of the parties, is that the Collector took possession of the petitioners' land under section 17(1) of the Act, 1894 on 2.4.1985. Thus on this date the petitioners were divested of their title in the land and the same came to be vested absolutely in the Government free from all encumbrances. Admittedly, notification under section 10(3) of the Ceiling Act was published on 20.5.1986 much after the land came to be vested in the Government under the provision of the Act, 1894. 8. Admittedly, notification under section 10(3) of the Ceiling Act was published on 20.5.1986 much after the land came to be vested in the Government under the provision of the Act, 1894. 8. An identical issue came up for consideration before a Division Bench of this Court in Writ Petition No. 14967 of 1988, Mohd. Shaheed Khan v. State of U.P. There was a difference of opinion between two Hon'ble Judges of the Division Bench. The matter came up before a Full Bench and after analyzing the decision of the Hon'ble Apex Court in the case of Satendra Prasad Jain v. State of U.P. 1993 (22) ALR 500 (SC); Neelagangabai v. State of Karnataka (1990) 3 SCC 617 and the decision of this Court in the case of Manne Khan v. State of U.P. AIR 1988 All 289 . 9. The Full Bench held as under: "Position is thus clear that if under any of the two Acts viz., the Land Acquisition Act or the Ceiling Act, the land has been acquired and its possession has been taken by the State then the proceedings under the other Act cannot be continued because the State cannot acquire its own land. Therefore, the compensation has to be paid to the owner of the land under the Act under which it was acquired first." 10. The legal position on the subject thus stands settled by the aforesaid Full Bench judgment. Since in the case in hand, the land of the petitioners' was acquired under the Act, 1894 before publication of notification under section10(3) of the Ceiling Act, the proceedings under the Ceiling Act and the orders passed therein stand abrogated and the petitioners are entitled to compensation under the provisions of Land Acquisition Act, 1894. 11. As a result, writ petition stands allowed. Impugned order dated 22.6.2010 passed by the respondent No. 2 (Annexure No. 8 to the writ petition) is quashed. Respondents are directed to determine the compensation of the petitioners' land under the provisions of the Land Acquisition Act, 1894 and to pay the same, as expeditiously as possible preferably within six months from the date of receipt of certified copy of this order.