Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 3056 (ALL)

RADHA MADHAV SEWA TRUST v. STATE OF U. P.

2016-09-07

ARUN TANDON, SUNITA AGARWAL

body2016
JUDGMENT By the Court.—In the facts of the case, the amendment, which is sought to be incorporated, flows from the facts already on record and the same is formal inýÿ nature. The amendment application is allowed. 2. Let necessary corrections be made today. 3. Heard Sri B.C. Rai, Advocate on behalf of the petitioner. Standing Counsel on behalf of respondent Nos. 1 to 4 and Sri Shiv Nath Singh, Advocate on behalf of respondent No. 5. 4. This writ petition has been filed for quashing of the order dated 10.1.2012 passed by the State Government on the application of the petitioner under Section 48 of the Land Acquisition Act, 1894 as well as for a mandamus directing the respondents to not to dispossess the petitioner from plot No. 399 and not to interfere with the use and occupation of the same by the petitioner as well as to exempt the same from the acquisition proceedings. 5. By means of the amendment application it has been added that since no award has been made even after more than two years of the declaration under Section 6 of the Act, the proceedings may be declared to have lapsed. 6. Facts in short leading to the present writ petition are as follows: Plot No. 399, village Dohriya, tehsil and district Bareilly was subject-matter of notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as ‘Act, 1894’) dated 03rd June, 2004 read with Section 17 of the same Act. This notification was followed by notification under Section 6 of the Act, 1894 dated 04th July, 2005. 7. Petitioner before this Court, who claims to have purchased the plot vide two separate sale-deeds dated 06th June, 2002 and 14th November, 2003, filed Writ Petition No. 77878 of 2005 for quashing of the acquisition notifications. In the said writ petition an interim order was granted by the High Court on 22.12.2005. As a result whereof the dispossession of the petitioner from the disputed plot was stayed. 8. The writ petition was disposed of vide judgment and order dated 2.3.2009. The Division Bench held that the petitioner, if so advised, may make an application for exemption of the land from acquisition proceedings before the State Government. The State Government was asked to take an appropriate decision after affording opportunity to the petitioner thereon. 8. The writ petition was disposed of vide judgment and order dated 2.3.2009. The Division Bench held that the petitioner, if so advised, may make an application for exemption of the land from acquisition proceedings before the State Government. The State Government was asked to take an appropriate decision after affording opportunity to the petitioner thereon. The net result of the order of the High Court was that so far as the notification under Section 4 and 6 are concerned, the challenge to the same was not accepted and the prayer in that regard stood rejected by necessary implication. 9. The State Government under the order impugned in the present writ petition has noticed that the petitioner had purchased the land after a preliminary proposal for acquisition of land in respect of plot No. 399 had been submitted by the Development Authority to be precise on 27.10.2001. It has further been recorded that up to the date of acquisition no constructions had been raised by the petitioner over the plot in question. Therefore, the State Government decided not to exempt the land from acquisition proceedings. 10. This order of the State Government has been subjected to challenge by means of the present writ petition, wherein an interim order was granted by the High Court on 1.3.2012 directing the parties to maintain the status quo. As a result of interim order neither possession of the plot could be obtained by the development authority nor an award in respect of the Plot No. 399 could be made. 11. However, to keep the record straight we may point out that in respect of the other plots, which were subject-matter of acquisition, award was made by the Special Land Acquisition Officer on 26.4.2010. The compensation under the said award has been determined with reference to the provisions of Section 24 of the Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as ‘Act, 2013’). 12. The compensation under the said award has been determined with reference to the provisions of Section 24 of the Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as ‘Act, 2013’). 12. We may also record that another writ petition, being Writ Petition No. 70494 of 2013 (Prashanti Niketan Educational Society v. State of U.P. and others), filed for challenging the same notification and with the prayer for declaration that the acquisition proceedings have lapsed under Section 11-A of the Act, 1894, has been decided by us on 5.9.2016 following the judgment of the Apex Court in the Case of Savitri Devi v. State of Uttar Pradesh and others, (2015) 7 SCC 21 . It has been held that the petitioner therein would be entitled to benefit of the Full Bench judgment of the High Court in the case of Gajraj and others v. State of U.P. and others, 2011(11) ADJ 1 (FB) and they shall be provided 10% of the developed land. No direction for payment of additional compensation has been made by us keeping in mind that the compensation has been determined under the Act, 2013, which would be much more than the relief of 67% additional compensation to be determined with reference to the date of notification under Section 4 of Act 1894. 13. So for as the present petitioner is concerned, it has been contended before us that the State Government has rejected the representation on wholly misconceived ground, namely, that (a) on the date of proposal submitted by the development authority the petitioner was not the recorded tenure holder of the plot in question and (b) that no constructions had been raised till the date of acquisition of the plot in question. 14. On behalf of the petitioner it is submitted that no rights of a purchaser are adversely affected under the Act, 1894 if he purchases the land subsequent to the submission of the proposal by a development authority for the purposes of acquisition. Rights of only such purchases are adversely affected where the purchase is made subsequent to the issuance of notification under Section 4 of the Act, 1894. Reference—U.P. Jal Nigam v. Kalra Properties (P), 1996 SCC (3) 124. 15. Rights of only such purchases are adversely affected where the purchase is made subsequent to the issuance of notification under Section 4 of the Act, 1894. Reference—U.P. Jal Nigam v. Kalra Properties (P), 1996 SCC (3) 124. 15. So far as the issue of constructions having not been raised by the petitioner over the plot in question are concerned, it has been stated before us that a platform had been constructed on the disputed plot, which is being used for cultural functions etc. of the school and that the vacant land is being used for the parking of the buses and vans etc. of the school. It is, therefore, submitted that the State Government is not correct in saying that no constructions had been raised over the plot in question. 16. We may first deal with the issue as to whether any rights in the property purchased subsequent to the proposal submitted by the development authority stand diluted or not in light of the judgment of the Apex Court in the case of U.P. Jal Nigam v. Kalra Properties (P) (supra). 17. We may at the very outset record that the State Government has not rejected the exemption application of the petitioner on the ground that he does not get a valid title over the plot in question because of purchase of the plot subsequent to the proposal. The State Government in fact has not found it fit and proper to exercise its discretion for exemption of the plot in question from acquisition proceedings in exercise of power under Section 48 of the Act, 1894 on the said fact. 18. As already noticed above, the challenge to the notifications under Section 4 and 6 of the Act, 1894 by the petitioner in respect of plot in dispute stands repelled with the dismissal of the Writ Petition No. 77878 of 2005 filed by the present petitioner. Therefore, it is only the legality of the exercise of discretion by the State Government under Section 48, which needs to be examined by this Court. If State Government has taken note of the fact that the land had been purchased subsequent to the proposal submitted by the development authority, then it cannot be said that any factor completely irrelevant has been taken into consideration. 19. If State Government has taken note of the fact that the land had been purchased subsequent to the proposal submitted by the development authority, then it cannot be said that any factor completely irrelevant has been taken into consideration. 19. The petitioner has placed reliance upon the judgments of the Apex Court in the cases of 1992 Supp (2) SCC 136 (Para 2), 2001 (7) SCC 545 (Para 10 & 11), 2015 (126) RD 28 (Para 14, 16 & 23), 2015 (10) SCC 241 (Para 29), 2010 (7) ADJ 172 (Para 213-218) and 2008 (2) AWC 1832 (Para 15, 18), which in our opinion are clearly distinguishable in the facts of the case. 20. So far as the issue of constructions over the plot in question up to the date of issuance of Section 4 notifications are concerned, we may refer to the own admission of the petitioner as contained in paragraph 11 and 12 of the application filed before the State Government by the petitioner himself. In paragraph 12 it has been stated that the permission for introduction of additional subjects was granted by the CBSE in favour of the petitioner only on 13.4.2005. There is no averment qua any constructions having been raised over Plot No. 399 prior to the date of notification under Section 4. On the contrary in paragraph 22 it has been stated that in Plot Nos. 399 and 452 are being used as playground and for parking of school buses and school vans. 21. From the document, which has been enclosed at page 181 of the paper book, said to be site plan of the school building, we can safely record that the area of Khasra No. 400 is more than enough for the use as playground and parking of the vehicles etc., which admittedly had not been acquired by the development authority and is still available with the petitioner. 22. In the totality of the circumstances, we have no hesitation in coming to the conclusion that because of acquisition of Plot No. 399 neither the running of the school would be adversely affected nor the facility of parking, playground etc. would be adversely affect. 23. Therefore, we do not find any good ground to interfere with the decision of the State Government in refusing to exempt the land from acquisition. 24. would be adversely affect. 23. Therefore, we do not find any good ground to interfere with the decision of the State Government in refusing to exempt the land from acquisition. 24. This take the Court to the issue as to whether the proceedings of acquisition would lapse under the Act, 1894 on the ground that the award had not been made even after expiry of two years of the date of notification under Section 6. 25. As already noticed above, because of the interim order granted in the first writ petition dated 22.12.2005 and the interim order granted in the present writ petition on 1.3.2012 as well as having regard to the final direction of this Court dated 2.3.2009, in our opinion, the period of two years after excluding the period when there had been an stay order, has not expired. Even otherwise the said issue has been considered by us in the case of Prashanti Niketan Educational Society v. State of U.P. and others, in respect of the same notification. 26. In our opinion it would be in the interest of justice to permit the petitioner to have the benefit of the Full Bench judgment in the case of Gajraj Singh (supra) as has been provided for by the Apex Court in the case of Savitri Devi (supra) to the extent indicated below. 27. The petitioner shall be entitled to the compensation, to be determined and paid within one month in accordance with Section 24 of the Act, 2013, as also 10% of the developed land be provided to the petitioner within two months from the date of filing of a certified copy of this order before the Chairman, Bareilly Development Authority, Bareilly. 28. With the above observations and directions, the writ petition is disposed of.