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2016 DIGILAW 4124 (ALL)

Kulli Ram v. State of U. P.

2016-12-20

AMAR SINGH CHAUHAN, KRISHNA MURARI

body2016
JUDGMENT : KRISHNA MURARI, J. 1. Heard learned counsel for the petitioners, Sri J.N. Maurya, learned counsel for the respondent no. 1 Allahabad Development Authority and learned Standing Counsel for the State respondents. 2. Dispute is in respect of plot no. 1232 area 2 bigha 7 biswa 3 biswansi. 3. Facts which cull out from the pleadings of the parties are that various plots including the plot in dispute was subject matter of acquisition for Agra Development Authority for public purpose namely, construction of residential building, plots and commercial centres. A notification under Section 4 of the Land Acquisition Act, 1894 (for short the 'Act') read with Section 17(4) of the Act was published in official gazette on 30.01.1989. The area of the plot in dispute was mentioned as 2 bigha 9 biswa. On account of mistake in respect of area of the plots sought to be acquired, a corrigendum dated 17.8.1989 was issued. The area of the plot in dispute was corrected to 2 bigha 7 biswa 3 biswansi (2-7-3). 4. It is a categorical case set up by the petitioners that residential construction over an area 1 bigha 11 biswa 8 biswansi (1-11-8) was standing over the plot in dispute and possession whereof was not taken by the Agra Development Authority. This fact is admitted by the Agra Development Authority in paragraph 7 of its counter affidavit to the amended writ petition that since the area measuring 1-11-8 of the plot in dispute was covered by construction, hence, possession of the same could not be taken at that point of time. It is altogether a different matter that Agra Development Authority has stated that construction was raised after issuance of the notification under Section 30.1.1989 under Section 4/17 of the Act. An award under Section 11(1) of the Act was declared on 29.2.1992. The award was challenged by the respondent Development Authority by filing writ petition before this Court which was dismissed on 05.01.2000. The judgment of this Court was challenged in Special Leave Petition before the Hon'ble Supreme Court which was allowed vide judgment and award dated 07.02.2001 and after quashing the award dated 29.2.1992, the Special Land Acquisition Officer was directed to make fresh award after impleading Agra Development Authority and allowing them adequate opportunity of hearing. The judgment of this Court was challenged in Special Leave Petition before the Hon'ble Supreme Court which was allowed vide judgment and award dated 07.02.2001 and after quashing the award dated 29.2.1992, the Special Land Acquisition Officer was directed to make fresh award after impleading Agra Development Authority and allowing them adequate opportunity of hearing. A fresh award was made by the Special Land Acquisition Officer on 05.11.2001, which is on record of the writ petition as annexure - 2. 5. After the fresh award was prepared, a letter was issued by the Secretary of the Agra Development Authority to the District Magistrate, Agra requesting to give possession over the remaining area of the plots under acquisition on which they could not get possession. The letter contains a list of such plots. Disputed plot no. 1232 finds place at serial no. 6 of the said list and the area over which possession could not be taken is mentioned as 1-11-8. 6. It was only after this letter when the respondent authorities started dispossessing the petitioner forcibly, the present writ petition was filed. Initially following relief were claimed : "A. issue a writ, order or direction in the nature of mandamus commanding upon the opposite parties not to dispossess the petitioners from the constructed area of plot no. 1232 area 1-11-8 biswanshi, situated in village Basai Mustkil, Pargana, Tehsil and District Agra. B. issue any such other and further suitable writ, order or direction which this Hon'ble Court may deem fit and proper under the circumstances of the case. C. and to award the cost of the petition in favour of the petitioners." 7. Subsequently after enforcement of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as the 'Act, 2013'), the writ petition was amended by pleading that neither any compensation has been paid in respect of the area 1- 11-8 of the plot in dispute nor possession of the same has been taken, as such, in view of the provisions of Section 24(2) of the Act, 2013, the acquisition proceedings have lapsed. The amendment application was allowed and pleadings as well as prayer clause was permitted to be amended vide order dated 11.9.2015. The amendments have duly been incorporated in the writ petition on 17.9.2015. The amendment application was allowed and pleadings as well as prayer clause was permitted to be amended vide order dated 11.9.2015. The amendments have duly been incorporated in the writ petition on 17.9.2015. After the prayer A, one prayer i(A) was added to the effect that issue a suitable writ, order or direction holding that the acquisition in respect of the Plot No. 1232 area 1 bigha 11 biswa 8 biswansi situated at Village Basai Mustkil, Pargana, Tehsil and Agra stood lapsed. 8. Amended pleadings contain Form-11 as annexure - 4A to the writ petition. A perusal of the same goes to show that compensation has been prepared and paid only for an area 15 biswa 15 biswansi of plot no. 1232. Categorical averments in the amended writ petition to the effect that in respect of an area 1- 11-8 of plot no. 1232 neither possession was taken nor the compensation for the said area was prepared or paid are contained in paragraph 10-D, 10-E and 10-F of the amended the writ petition. Agra Development Authority in its counter affidavit has not denied the said facts. The reply to the said paragraphs are contained in paragraph 20 & 21 of the counter affidavit of Agra Development Authority to the amended writ petition and we find that there is not even a vague denial. It may be relevant to extract the said paragraphs from the counter affidavit of the Agra Development Authority to the amended writ petition which read as under : "20. That the contents of paragraph No. 10-D of the writ petition as stated are misconceived and incorrect hence not admitted. On account of unauthorized and illegal construction raised by the petitioner subsequent to the notification, the possession of 0-15-15 bigha was handed over to the answering respondent at the point of time but the remaining land of Gata No. 1232 of the village is still acquired on which the petitioner has raised construction without any authority. 21. That the contents of paragraph Nos. 10-E and 10-F of the writ petition as stated are misconceived. The petitioner himself being encroacher cannot be permitted to take a plea that the respondents had not taken possession of the entire acquired land and consequently it is not open for them to take a plea that the remaining land is not acquired and the award was not declared in respect thereof. The petitioner himself being encroacher cannot be permitted to take a plea that the respondents had not taken possession of the entire acquired land and consequently it is not open for them to take a plea that the remaining land is not acquired and the award was not declared in respect thereof. If such a plea is permitted by the encroacher, no land can be made available for public purposes and every person after acquisition of land would raised construction unauthorisedly and then takes a plea that the land has not been acquired or the possession has not been taken." 9. Reference may also be made to the report of the Amin dated 18.1.2008 submitted to the Additional District Magistrate (land Acquisition) stating that possession of the area over which the construction is standing was not handed over to the Agra Development Authority and now after expiry of 19 years from the date of publication of notification, it is not possible to transfer the possession. On the said report, the Additional District Magistrate (Land Acquisition) sought a report with respect to payment of compensation in respect of the area, the possession of which could not be transferred. A report dated 29.01.2008 was submitted by the Amin that payment of compensation has not been made. On the basis of the aforesaid report, the Additional District Magistrate (Land Acquisition) informed the Secretary of the Agra Development Authority vide letter dated 29.01.2008 that it is not possible to hand over the possession now. The aforesaid two documents are on record of the amended writ petition as annexure- 4-B & 4- C. 10. Reference at this stage may also be made to the averments of the counter affidavit filed on behalf of the State respondents no. 2 & 3. It is categorically stated therein that out of the total area of plot no. 1232, possession of only 15 biswa 15 biswansi (0-15-15) was handed over to the Agra Development Authority and possession of the remaining area 1 bigha 11 biswa 8 biswansi (1-11-8) could not be handed over on account of abadi existing thereon. It has also been stated that now the said area has become so densely populated it is not feasible to take over the possession of the same and hand over to Agra Development Authority. It has also been stated that now the said area has become so densely populated it is not feasible to take over the possession of the same and hand over to Agra Development Authority. The aforesaid averments contained in paragraphs 7, 9 & 11 of the counter affidavit filed on behalf of the State respondents are being reproduced hereunder : "7. That, in reply to the contents of paragraph-7 of the Writ Petition it is submitted that total area of 2 Bigha, 7 Biswa, 3 Biswansi of Khasra No. 1232 was also under the acquisition and after taking over the possession, the award was also made on 29.02.1992. It is further clarified that in the same Khasra, the area of 1-11-18 was left over at the time of taking possession on the ground of Abadi and the remaining area of 0-15-15 Bigha had been taken over and the possession had been handed over to the Agra Development Authority. It is further submitted that the award, which was made on 29.09.1992 was subsequently rectified on the basis of the direction issued by the Hon'ble Supreme Court on 05.11.2001 relating to the award/compensation. 9. That, in reply to the contents of paragraph-9 of the Writ Petition it is submitted that the Secretary, Agra Development Authority vide his letter dated 25.07.2007 had requested to the State Government that under the scheme known as Village Basai Mustakil within Chungi area of 15-10-4-6 Bigha, the possession of area of 1-11-4 Bigha be given. Thereafter, a spot inspection was made by the Special Land Acquisition Officer on 29.01.2008. Thereafter, it has been found that the area, which was left over initially in 1990 while taking possession on the ground of abadi, has now more densely populated and as per the report dated 18.01.2008 it was not feasible to take over the possession of the same. 11. That, reply to the contents of paragraph-11 of the Writ Petition it is submitted that from bare perusal of the report it would clearly reveal that Khasra No. 1232 (1-11-8) is now densely populated, therefore, it was not feasible to hand over the possession to the Agra Development Authority. It is further reiterated that on the same very ground initially the possession could not be taken over." 11. It is further reiterated that on the same very ground initially the possession could not be taken over." 11. In view of the aforesaid facts, it is thus clear that out of the total area of 2 bigha 7 biswa 3 biswansi (2-7-3) of plot no. 1232, petitioners were neither dispossessed nor paid compensation in respect of an area 1 bigha 11 biswa 8 biswansi (1-11-8) of the plot in dispute and the same still continues to be in possession of the petitioners. 12. The Land Acquisition Act, 1894 was repealed on enforcement of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 with effect from 01.01.2014. Section 24 of the Act, 2013 prescribes the conditions on existence or fulfillment thereof, the land acquisition proceedings under the Act of 1894 shall be deemed to have lapsed. The said Section reads as under : "24. Land acquisition process under Act No. 1 of 1894 shall be deemed to have lapsed in certain cases.- (1) Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894),- (a) where no award under section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; or (b) where an award under said section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed. (2) Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894), where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act; Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act." 13. A bare reading of Section 24 (2) of Act, 2013 goes to show that upon fulfillment of two conditions mentioned therein, the acquisition proceedings made under the old Act shall be deemed to have lapsed. The said two conditions are:- (1) award under the said section 11 has been made five years or more prior to the commencement of the new Act, i.e., prior to 01.01.2014. (2) the physical possession of the land has not been taken or the compensation has not been paid. 14. The provisions of Section 24 (2) has been subject matter of interpretation by Hon'ble Apex Court in the case of Pune Municipal Corporation & Anr. v. Harakchand Misirimal Solanki & Ors., (2014) 3 SCC 183 . It may be relevant to quote paragraphs 10 and 11 of the report, where this issue has been discussed and answered. "10. Insofar as sub-section (1) of Section 24 is concerned, it begins with non obstante clause. By this, Parliament has given overriding effect to this provision over all other provisions of 2013 Act. It is provided in clause (a) that where the land acquisition proceedings have been initiated under the 1894 Act but no award under Section 11 is made, then the provisions of 2013 Act shall apply relating to the determination of compensation. By this, Parliament has given overriding effect to this provision over all other provisions of 2013 Act. It is provided in clause (a) that where the land acquisition proceedings have been initiated under the 1894 Act but no award under Section 11 is made, then the provisions of 2013 Act shall apply relating to the determination of compensation. Clause (b) of Section 24 (1) makes provision that where land acquisition proceedings have been initiated under the 1894 Act and award has been made under Section 11, then such proceedings shall continue under the provisions of the 1894 Act as if that Act has not been repealed. 11. Section 24 (2) also begins with non obstante clause. This provision has overriding effect over Section 24 (1). Section 24 (2) enacts that in relation to the land acquisition proceedings initiated under 1894 Act, where an award has been made five years or more prior to the commencement of the 2013 Act and either of the two contingencies is satisfied, viz; (i) physical possession of the land has not been taken or (ii) the compensation has not been paid; such acquisition proceedings shall be deemed to have lapsed. On the lapse of such acquisition proceedings, if the appropriate government still chooses to acquire the land which was the subject matter of acquisition under the 1894 Act then it has to initiate the proceedings afresh under the 2013 Act. The proviso appended to Section 24 (2) deals with a situation where in respect of the acquisition initiated under the 1894 Act an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries then all the beneficiaries specified in Section 4 notification become entitled to compensation under 2013 Act." 15. The same view has been reiterated in the case of Bharat Kumar v. State of Haryana & Anr., (2014) 6 SCC 586 . After noticing the provisions of Section 24 of the Act, 2013, it has been held as under. "Sub-section (2) of Section 24 commences with a non obstante clause. It is a beneficial provision. The same view has been reiterated in the case of Bharat Kumar v. State of Haryana & Anr., (2014) 6 SCC 586 . After noticing the provisions of Section 24 of the Act, 2013, it has been held as under. "Sub-section (2) of Section 24 commences with a non obstante clause. It is a beneficial provision. In view of this provision, if the physical possession of the land has not been taken by the acquiring authority though the award is passed and if the compensation has not been paid to the land owners or has not been deposited before the appropriate forum, the proceedings initiated under the 1894 Act is deemed to have been lapsed." 16. The ratio of the decision of the Pune Municipal Corporation (supra) has been reaffirmed by the Hon'ble Apex Court in the case of Bimla Devi & Ors. v. State of Haryana & Ors., (2014) 6 SCC 583 , Union of India & Ors. v. Shiv Raj & Ors., (2014) 6 SCC 564 , Shree Balaji Nagar Residential Association v. State of Tamil Nadu & Ors., (2015) 3 SCC 353 and Velaxan Kumar v. Union of India & Ors., (2015) 4 SCC 325 . 17. On an analysis of the facts and pleadings of the parties, we have already found that neither the petitioners have been dispossessed from over an area 1- 11-8 of plot no. 1232 nor they have been paid compensation in respect thereof. 18. In view of the undisputed and admitted facts of the case that the petitioners have not received compensation nor they have been dispossessed from over an area 1-11-8 of disputed plot no. 1232, the acquisition proceedings in respect of the said area under the old Act cannot escape from the mischief of Section 24(2) of the Act, 2013. 19. As a result, the acquisition proceedings in respect of an area 1-11-8 of disputed plot no. 1232 stands lapsed and thus, a writ mandamus is issued commanding the respondents not to interfere in the possession of the petitioners over an area 1 bigha 11 biswa 8 biswansi of plot no. 1232 situate at village Basai Mustkil, Pargana, Tehsil and District Agra. 20. Writ petition accordingly, stands allowed. However, in the facts and circumstances, there shall be no order as to costs.