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2015 DIGILAW 3357 (ALL)

M. K. S. K. Business Limited. v. State of U. P.

2015-10-27

ANANT KUMAR, SATYENDRA SINGH CHAUHAN

body2015
JUDGMENT (Delivered by Hon'ble Satyendra Singh Chauhan, J.) 1. Heard learned counsel for the petitioner and learned Additional Advocate General assisted by Sri Shobhit Mohan Shukla, learned Standing Counsel appearing for opposite parties no.1 to 4. 2. This petition has been filed with the prayer for quashing the notification under Section 6 of the Land Acquisition Act, 1894 (for short "the Act") dated 19.2.2015 contained in Annexure No.1 to the writ petition as well as the order dated 14.11.2014 rejecting the application moved under Section 5-A of the Act. A further prayer has been made to quash the award dated 14.8.2015 as well as details of award dated 18.8.2015 contained in Annexure Nos.20-B and 20-C to the writ petition. 3. The facts giving rise to the present petition are that plots falling in Gata/Khasra Nos.591, 592, 593 and 600, area 0.632 hectare situated in Village Sarosa Bharosa, Pargana Kakori, Tehsil & District Lucknow fell in the share of Babu Ram as a result of mutual settlement between the legal heirs of Shri Krishan in the year 1948 as a result of which 12.5 bigha of land fell into the share of Babu Ram. A family settlement dated 6.11.1988 was entered into between the legal heirs of Babu Ram, namely, Vipin Bihari, Rajendra Kumar, Kaushal Kishore, Pratap Narayan and Rajjan Lal. One of the tenure holders of the legal heirs of Shri Krishan, namely, Ravindra Kumar had filed a suit for partition under Section 176 of the UP ZA & LR Act (for short "the ZA Act") against the other tenure holders of all 46 khata numbers in the year 2006-2007. Legal heirs of Vipin Bihari, after his death, Smt. Chakravarti Devi and Ram Gopal sold their part of land to Pratap Narayan son of Babu Ram through a registered sale deed dated 13.5.2010 and possession of the land was delivered to Pratap Narayan of Gata Nos. 591, 592, 593 and 600 defining the boundary of the said land. The petitioner vide registered sale deed dated 22.9.2010 purchased the same land from Pratap Narayan measuring 0.632 hectare falling in Gata/Khasra Nos. 591, 592, 593 and 600. 4. The suit for partition was decreed by the Additional Sub Divisional Magistrate, Sadar, Lucknow vide order dated 18.10.2011 and a direction was given to the Tehsildar to prepare the share (kuras). The petitioner vide registered sale deed dated 22.9.2010 purchased the same land from Pratap Narayan measuring 0.632 hectare falling in Gata/Khasra Nos. 591, 592, 593 and 600. 4. The suit for partition was decreed by the Additional Sub Divisional Magistrate, Sadar, Lucknow vide order dated 18.10.2011 and a direction was given to the Tehsildar to prepare the share (kuras). The petitioner, who purchased the land wanted to use the same for non-agricultural purposes/ commercial purposes and so he moved an application under Section 143 of the ZA Act before the Sub Divisional Magistrate, who vide order dated 12.10.2012 allowed the application and permitted the petitioner to change the land use from agricultural to non-agricultural purposes. Shares were prepared by the Tehsildar on the basis of the respective possession over the plots in question and a final decree was prepared. The tenure holder filed an appeal before the Additional Commissioner, Lucknow against the order passed by the Additional Sub Divisional Magistrate under Section 176 of the ZA Act and the appeal filed by the tenure holder came to be dismissed vide order dated 21.8.2015. Partition suit thereafter attained finality. Respective shares of the parties were prepared in accordance with the partition decree. 5. During pendency of the aforesaid proceedings, the State Government proceeded to issue Government Order dated 28.9.2012, which was issued by the Industrial Development Department-3 for the construction of Agra-Lucknow Access Controlled Expressway (Green Field) Project to develop the area and good accessibility between the two cities. The State Government issued notification under Section 4 of the Act on 31.12.2013 indicating therein that the land is needed for public purposes for construction of Agra-Lucknow Access Controlled Expressway. On 13.11.2014, the petitioner filed objection under Section 5-A of the Act. Objection of the petitioner was considered and rejected vide order dated 14.11.2014 without considering the facts stated in the objection and without considering the factum of the partition decree, which was existing in favour of the petitioner. 6. Notification under Section 6 of the Act was issued on 6.2.2015 and was published in daily newspapers Amar Ujala and Hindustan dated 6.2.2015. 6. Notification under Section 6 of the Act was issued on 6.2.2015 and was published in daily newspapers Amar Ujala and Hindustan dated 6.2.2015. The petitioner submitted a representation on 25.5.2015 to the ADM (Land Acquisition) in which all the necessary facts were stated, but representation of the petitioner was not paid any attention, then another representation was moved on 4.6.2015 along with the relevant Government Orders and case laws, but without considering the aforesaid objections of the petitioner, the authorities proceeded to purchase the land from other persons. The authorities remained tight lipped over the representation of the petitioner and proceeded to buy the land from opposite parties no.6 to 16 on 5.6.2015. The petitioner filed writ petition on 8.6.2015 and the same was dismissed as withdrawn by this Court giving liberty to the petitioner to file a fresh writ petition. Thereafter, the petitioner filed Writ Petition No.73 of 2014 (LA) before this Court, which is still pending. 7. The petitioner was given notice on 16.7.2015 regarding the cancellation of the order dated 12.10.2012 by means of which the land was declared as non-agricultural under Section 143 of the ZA Act. The present writ petition has been filed challenging notification under Section 6 of the Act. 8. Submission of learned counsel for the petitioner is that the petitioner was in possession over the plot nos.591, 592, 593 and 600 and the same was purchased by it by means of sale deed dated 22.9.2010 from Pratap Narayan, who was in exclusive possession of the plots. Area of the said plots is 0.632 hectare. As the land in question was purchased by Pratap Narayan from one Chakravarti Devi wife of Vipin Bihari and Ram Gopal son of Vipin Bihari. The recital in the sale deed goes to indicate that 1/15 share of total 46 plots measuring 9.475 hectare has been purchased and the area has been mentioned as 0.632 hectare. The aforesaid area has been purchased by Pratap Narayan and the said area has been transferred in favour of the petitioner. The sale deed is very clear that as against 1/15 share, the vendor was in possession of 0.632 hectare of land which was his share. Pratap Narayan executed sale deed in favour of the petitioner and therein also the same recital has been made that area of 0.632 hectare has been purchased by the petitioner. The sale deed is very clear that as against 1/15 share, the vendor was in possession of 0.632 hectare of land which was his share. Pratap Narayan executed sale deed in favour of the petitioner and therein also the same recital has been made that area of 0.632 hectare has been purchased by the petitioner. The recital in the sale deed of Pratap Narayan itself is indicative of the fact that the aforesaid area has been transferred in continuity to the petitioner. Learned counsel submits that the suit under Section 176 of the ZA Act was filed for partition of the property. The partition suit was ultimately decreed by means of order dated 18.10.2011 and the final decree was prepared on 25.6.2013. Against the said order, revision was filed before the Additional Commissioner, Lucknow, which came to be dismissed vide order dated 21.8.2015. Learned counsel submits that all the aforesaid facts were stated in the objection under Section 5-A of the Act, but all the facts were not taken into consideration and neither any finding has been recorded in the impugned award. The impugned award has been passed in a mechanical manner without application of mind. No mention has been made about the partition decree or the sale deed and the private partition between the parties. Learned counsel submits that the Khata may not have been divided, but on the basis of private partition, parties were in possession in their respective shares and as such, action of the State Government is bad in law in not giving compensation to the petitioner to the extent of 0.632 hectare. The petitioner could not have been deprived of the compensation as against the aforesaid area. The contention of the opposite parties is that as against the area consisting of 1.402 hectare, only area of the petitioner which has been acquired is 0.2804 hectare. Learned counsel submits that if the contention of the opposite parties is accepted, then rest of the land belonging to the petitioner requires to be returned to it and it is their statutory obligation to restore the possession of the remaining land. Learned counsel submits that argument of the opposite parties is therefore not sustainable in law and the petitioner cannot be deprived of the compensation. Learned counsel submits that argument of the opposite parties is therefore not sustainable in law and the petitioner cannot be deprived of the compensation. Learned counsel submits that the petitioner is not pressing for quashing of acquisition and the acquisition is not being challenged by it at the moment as the petitioner has given up the claim for challenge before the authorities by moving representation. 9. Submission of learned Additional Advocate General is that if there had been any family settlement, the question of drawing the proceedings under Section 176 of the ZA Act would not have arisen and even if the orders passed in the proceedings under Section 176 of the ZA Act are pressed into service, though no final decree has been prepared and no mutation has been made, the petitioner cannot claim exclusive right or title over the land in question. She further submits that proceedings under Section 143 of the ZA Act are not in respect of determining the right and title of the petitioner. Her further submission is that other co-tenure holders have executed sale deeds in favour of U.P. Expressway Industrial Development Authority in respect of their respective shares i.e. total 14/15 share and thus, in respect of balance 1/15 share, the petitioner is entitled to the compensation. The authorities have acted strictly in accordance with revenue entries available in revenue record. Merely because the petitioner alleges its exclusive possession over four plots does not mean that it has exclusively acquired title over the said plots. She further submits that statement of the petitioner that final decree has been prepared is incorrect and wrong inasmuch as an order for preparing the final decree was passed on 25.6.2013, however, till date no final decree has been prepared. She submits that once the petitioner is aggrieved by the order passed under the Act, it cannot seek benefit of the order passed under Section 176 of the ZA Act. The petitioner has utterly failed to demonstrate as to how it is the bonafide owner of only four plots exclusively. The petitioner has not got any right declared in respect of four plots from any competent court of law. Mere possession of the petitioner over the plots does not mean that the authorities acquiring the land may construe the petitioner to be the rightful owner of the said property. The petitioner has not got any right declared in respect of four plots from any competent court of law. Mere possession of the petitioner over the plots does not mean that the authorities acquiring the land may construe the petitioner to be the rightful owner of the said property. It is the revenue entries which form evidence in respect of right and title of a particular person. The revenue entry does not support the version of the petitioner. Once the petitioner has failed to establish its exclusive right over the plots in question, the change of land use by passing an order under Section 143 of the ZA Act will not confer any right to the petitioner. Further contention is that the notification under Section 4 of the Act was issued prior to coming into force the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short "the Rehabilitation Act") has come into force on 1.1.2014 and all the proceedings with continuity will be governed by the Act by virtue of Section 114 of the Rehabilitation Act read with Section 6 of the General Clauses Act. Once the publication of preliminary notification has been done, hearing of objection under Section 5-A of the Act has taken and award has been passed in respect of the recorded tenure holders, the petitioner who was recorded tenure holder is entitled to the extent its land has been acquired and compensation has been given to it. 10. We have heard learned counsel for the parties and perused the record. 11. The pivotal question, which falls for consideration before this Court is as to what relief can be given to the petitioner in view of the argument advanced during the course of hearing that the petitioner moved an application before the competent authority claiming compensation and the petitioner is not challenging the acquisition in the present case. The only prayer has been made that compensation may be paid to the petitioner under the Rehabilitation Act as the award has been made on 14.8.2015. The impugned award itself goes to indicate that neither the petitioner was given any hearing nor any opportunity as contemplated under Section 5-A of the old Act. The only prayer has been made that compensation may be paid to the petitioner under the Rehabilitation Act as the award has been made on 14.8.2015. The impugned award itself goes to indicate that neither the petitioner was given any hearing nor any opportunity as contemplated under Section 5-A of the old Act. The finding recorded in the award itself goes to indicate that it has been passed in a mechanical manner and none of the document or the representation moved by the partitioner was taken into consideration and neither any finding has been recorded by the Land Acquisition Officer. The only reason has been given that interested person has not preferred any claim though mention has been made about the contention of the petitioner and other persons. Neither the order passed by the Additional SDM under Section 176 of the ZA Act has been taken into consideration nor there is any single whisper about the sale deed etc. executed in favour of the petitioner. Apart from it, the argument which is sought to be advanced before the Court by the learned Additional Advocate General that the entire land of the petitioner has not been acquired also falls to the ground on account of the reason that what area has been acquired and what area has been left over is also not clear from the award. If certain area has been acquired and certain area has not been acquired, then the opposite parties are duty bound to restore possession to the petitioner of the unacquired land. Under the garb of the acquisition and non-division of the holding, the opposite parties cannot come forward and argue that the petitioner has no claim in respect of its plots numbering 591, 592, 593 & 600. 12. The suit filed under Section 176 of the ZA Act has been decreed on 18.10.2011. After passing of the aforesaid order by the Additional Sub Divisional Magistrate, Sadar, Lucknow and decreeing the suit for partition and thereby preparing the preliminary decree, final shares (Kuras) were prepared on 25.6.2013 and division has taken place accordingly. 12. The suit filed under Section 176 of the ZA Act has been decreed on 18.10.2011. After passing of the aforesaid order by the Additional Sub Divisional Magistrate, Sadar, Lucknow and decreeing the suit for partition and thereby preparing the preliminary decree, final shares (Kuras) were prepared on 25.6.2013 and division has taken place accordingly. An appeal was preferred against the order dated 18.10.2011 before the Additional Commissioner and an interim order was passed in the said appeal, but ultimately the said appeal stood dismissed vide order dated 21.8.2015, which attained finality as the said order has not been challenged in any higher forum and neither any evidence has been brought on record to indicate the aforesaid fact. The partition decree has become final. Determination of share (Kurra Faat) has also taken place. Division will take place by meets and bounds. The land may have been acquired, but the execution of the partition decree has to be done. In what manner the partition decree is to be executed, it is for the Additional Sub Divisional Magistrate, who has passed the order decreeing the suit under Section 176 of the ZA Act and determine the share of the petitioner. Once the petitioner has purchased the land from Pratap Narayan while Pratap Narayan purchased the said land from Smt. Chakravarti Devi and Ram Gopal, who sold their share specifying therein the boundaries. Once the boundaries have been specified and share of Smt. Chakravarti Devi and Ram Gopal has been purchased by Pratap Narayan, the same portion of the land has been transferred to the petitioner, may be that only 1/15 of 46 plots. All the share holders have executed the sale deeds in favour of the Acquiring Body. 13. In what manner, the Land Acquisition Officer has dealt with the aforesaid fact? Whether the sale deeds have been executed in excess of their shares or the sale deeds to the extent of their shares; all these questions have to be gone into by the Land Acquisition Officer. The petitioner has specifically alleged that all the plots belonging to it, namely, 591, 592, 593, & 600 have been acquired measuring 0.632 hectare, to which an argument has been advanced by the counsel for the opposite parties that entire area has not been acquired and only some portion has been acquired. The petitioner has specifically alleged that all the plots belonging to it, namely, 591, 592, 593, & 600 have been acquired measuring 0.632 hectare, to which an argument has been advanced by the counsel for the opposite parties that entire area has not been acquired and only some portion has been acquired. The effect of the decree has to take place and it cannot be left to the discretion of the opposite parties to ignore the said partition decree. All the four plots of the petitioner have been acquired or partially acquired; in respect of all these facts a specific finding has to be recorded, but we find from the record that nothing has been said except that interested person has not claimed anything. Who could have been the interested person and how the petitioner could have been ousted though it has been admitted by the opposite parties that certain land of the petitioner has been acquired. Even if certain land has been acquired, then demarcation has to be done and rest of the land was to be restored to the petitioner. On the one hand it has been said that the petitioner does not have any right in view of the fact that its entire land has not been acquired and whatever land has been acquired, award has been made. Under which provision award has to be made? Section 24 (1) (a) of the Rehabilitation Act provides that where no award under Section 11 of the Land Acquisition Act has been made, then all provisions of this Act relating to the determination of compensation shall apply. Sub Section (1) (b) of Section 24 of the Rehabilitation Act lays down that where an award under said Section 11 has been made, then provisions contained in the said Acquisition Act shall apply as if the said Act has not been repealed. 14. We have to see as to what is the position in the present case. In the present case, the award has been made on 14.8.2015. Admittedly, the award has not been made prior to the enforcement of the Rehabilitation Act i.e. 1.1.2014. Once the award has not been made prior to the enforcement of the Rehabilitation Act, then the determination has to take place in accordance with provisions of the new Act. In the present case, the award has been made on 14.8.2015. Admittedly, the award has not been made prior to the enforcement of the Rehabilitation Act i.e. 1.1.2014. Once the award has not been made prior to the enforcement of the Rehabilitation Act, then the determination has to take place in accordance with provisions of the new Act. The provisions of the new Act, therefore, will have their effect and the opposite parties will have to adhere to the provisions of the new Act in determining the compensation in respect of the petitioner. 15. We would have not entertained this petition if any other remedy was available to the petitioner under the new Act. Under the new Act, authority has not been constituted up till now. If the authority has not been constituted up till now, then the petitioner has no remedy except the remedy by way of writ petition. The award is a non-speaking award and relevant evidence has been ignored and non-speaking award has been passed without any reasonable consideration of the claim raised by the petitioner. The petitioner has been deprived of its valuable right in regard to determination of compensation and consideration of its evidence and decree of partition. 16. We, therefore, have no option but to quash the award in respect of the petitioner and direct the Land Acquisition Officer to pass a fresh award after taking into consideration the relevant evidence and the observations made in this judgment. 17. The writ petition is accordingly allowed. We issue a writ in the nature of certiorari quashing the award dated 14.8.2015 in respect of the petitioner and rest of the award is not being interfered with.