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2016 DIGILAW 200 (UTT)

Rajeev Kumar v. State of Uttarakhand

2016-05-05

U.C.DHYANI

body2016
JUDGMENT : U.C. Dhyani, J. By means of present writ petition, the petitioners seek following reliefs, among other: “(i) To Issue a writ, order or direction in nature of certiorari calling for the original record and pleased to quash the entire land acquisition proceedings alongwith impugned notification issued under section 4(1) r/w 17 (4) of Land Acquisition Act dated 7.2.2006, subsequent notification issued under section 6(1) dated 19.7.2006 alongwith award dated 02.9.2006 made under section 11 of the land Acquisition Act 1894 as well as impugned order dated 16.7.2015 passed by the respondent no. 3 i.e. SLAO Udham Singh Nagar, rejecting the objections filed by the petitioners under section 5-A of the Land Acquisition Act 1894 in the light of sub-section (2) of section 24 of the LARR Act 2013. (ii) To issue a writ, order or direction in the nature of the mandamus directing and commanding the respondents to the effect that they shall not interfere in peaceful physical possession of the petitioners over the disputed land in any manner.” 2. An interim stay application being CLMA No. 3793/2016 has been filed on behalf of the petitioners to issue an interim mandamus directing and commanding the respondents to the effect that they shall not take the physical possession of the disputed land forcefully. 3. According to the writ petition, the petitioners are the Bhumidhar with transferrable rights of the land in dispute. It is an agricultural land. The petitioners are still in peaceful physical possession of the disputed land, and presently wheat crop is being harvested by them. In the year 2006, the State Government issued a notification on 07.02.2006 for acquisition of the aforesaid disputed land for construction of Naveen Mandi Sthal for Krishi Utpadan Mandi Samiti, Gadarpur, and in doing so urgency clause under section 17(4) of the Land Acquisition Act 1894 (herein after referred to as “Act”) was invoked. The provisions of section 5-A of the Act were dispensed with. Gazette notification was published in two daily newspapers as per the mandate of section 4(1) of the Act for general information to the public at large. On 19.7.2006, the State Government issued another notification under section 6 of the Act. That too was published in the local newspapers on 31.7.2006. The petitioners preferred a writ petition no. Gazette notification was published in two daily newspapers as per the mandate of section 4(1) of the Act for general information to the public at large. On 19.7.2006, the State Government issued another notification under section 6 of the Act. That too was published in the local newspapers on 31.7.2006. The petitioners preferred a writ petition no. 928 (M/B) of 2006 challenging both the notifications issued under section 4(1) r/w 17(4) & 6 of the Act, in which order of status quo was passed on 02.9.2006. Special Land Acquisition Officer (SLAO) passed an award under section 7 of the Act for the purpose of awarding compensation. The amount involved in the award was never paid to the petitioners or their predecessors. The said amount was not deposited in the Court or in the account of the petitioners. Vide order dated 29.11.2014, the writ petitions were decided with a direction to the petitioners to file their objections under section 5-A of the Act. Vide order dated 29.11.2014, petitioners filed their objections before respondent no. 3-SLAO, Udham Singh Nagar on 27.01.2015, but, SLAO did not drop acquisition proceedings. The SLAO made an attempt to deposit the compensation with the District Court of Rudrapur, but District Judge did not permit him to do so. 4. It is the principal contention of learned counsel for the petitioners that present land acquisition proceedings have been lapsed in view of sub-section (2) of section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (herein after referred to as “LARR Act”), inasmuch as the award was passed on 02.9.2006, more than five years prior to commencement of LARR Act, 2013, physical possession of the acquired land was not taken, the physical possession is still with the petitioners, and neither any compensation was paid to them or their predecessors nor was the same deposited in the account of the land owners/petitioners or their predecessors before the commencement of LARR Act, 2013. 5. Learned counsel for respondent nos. 4 & 5 submitted that the issue at hand has already been decided by the Hon’ble Division Bench of this Court in Special Appeal No. 34 & 35/2015, vide order dated 27.10.2015. The Hon’ble Division Bench has held that the acquisition would not lapse. The said appeal was between the petitioner and Mandi Parishad. 5. Learned counsel for respondent nos. 4 & 5 submitted that the issue at hand has already been decided by the Hon’ble Division Bench of this Court in Special Appeal No. 34 & 35/2015, vide order dated 27.10.2015. The Hon’ble Division Bench has held that the acquisition would not lapse. The said appeal was between the petitioner and Mandi Parishad. Although the piece of land herein is different, but, the parties are same. Notification under section 4 & 6 under Land Acquisition Act is the same. Hon’ble Division Bench has negated the arguments of petitioner. The instant writ petition is barred by the principals of Re-Judicata. Further, in writ petition no. 1128/2007 order dated 26.11.2014, the Hon’ble Writ Court had only directed the SLAO, Udham Singh Nagar to adjudicate a limited issue, i.e., whether the said land should be acquired or not? Petitioner has complied with the said order. Mandi Parishad has paid the entire amount of compensation to SLAO and the petitioners have never withdrawn the same. 6. Considering the aforesaid submissions of learned counsel for the parties, this Court does not think it appropriate to grant an interim mandamus, as prayed for by the petitioners, in their interim relief application. This Court, in doing so, relies heavily on the decision rendered by this Court in writ petition no. 1128 of 2007 (M/S) between the same parties, although regarding different piece of land. Dispute involves the same question of law. The reasons are self explanatory (in para-5 above). This Court need not reproduce the facts once again, for the sake of brevity. It is only at the instance of learned counsel for the petitioners that the interim stay application is being disposed of without affording opportunity to the respondents to file short counter affidavit even. Interim stay application thus stands dismissed. 7. As prayed, four weeks’ time is granted to the learned counsel for the respondents to file counter affidavit. 8. List this writ petition four weeks hence.