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2017 DIGILAW 2176 (ALL)

MAHENDRA v. STATE OF UTTAR PRADESH

2017-09-14

DILIP GUPTA, DINESH KUMAR SINGH I

body2017
JUDGMENT : DILIP GUPTA, J. 1. This petition has been filed for a direction upon the respondents to allot 10% developed abadi land in view of the decision of a Full Bench of this Court in Gajraj & Ors. v. State of U.P. & Ors., 2011 (11) ADJ 1 . It needs to be stated that the petitioners have already been paid 64.70% additional compensation. 2. The petitioners claim to have been co-tenure-holder of certain land situated in Village-Chaprauli Bangar, Tehsil-Dadri, District Gautam Budh Nagar and their names have been recorded in the revenue record as bhumidhar with non transferable right. A notification dated 4 July 2003 was issued under section 4(1) of the Land Acquisition Act, 1894 The Act for acquisition of a large tract of land including the land of the petitioners. This notification was followed by a declaration dated 21 July 2003 made under section 6 of the Act. The enquiry contemplated under section 5-A of the Act was dispensed with. 3. One of the plea that was raised before the Full Bench in Gajraj was that the State Government was not justified in dispensing with the provisions of Section 5-A of the Act by invoking the provisions of sub-sections (1) and (4) of Section 17 of the Act. The Full Bench held that the State was not justified in dispensing with the enquiry contemplated under Section 5-A of the Act. Three sets of directions were then issued. Some of the writ petitions that had been filed with unexplained delay and laches were dismissed. The notifications issued in respect of villages where no development had taken place were quashed. However, in respect of some villages where substantial development had taken place, instead of quashing the acquisition proceedings even after accepting the plea that the provisions of Section 17(1) of the Act were wrongly invoked, the Full Bench enhanced the compensation by 64.7% as well as issued directions for allotment of developed abadi plot. The operative portion of the directions issued by the Full Bench in respect of petitions where relief for additional compensation and allotment of developed abadi plot was granted as contained in paragraphs 482(3) and 482(4) is as follows:- "3. The operative portion of the directions issued by the Full Bench in respect of petitions where relief for additional compensation and allotment of developed abadi plot was granted as contained in paragraphs 482(3) and 482(4) is as follows:- "3. All other writ petitions except as mentioned above at (1) and (2) are disposed of with following directions: (a) The petitioners shall be entitled for payment of additional compensation to the extent of same ratio (i.e. 64.70%) as paid for village Patwari in addition to the compensation received by them under 1997 Rules/award which payment shall be ensured by the Authority at an early date. It may be open for Authority to take a decision as to what proportion of additional compensation be asked to be paid by allottee's. Those petitioners who have not yet been paid compensation may be paid the compensation as well as additional compensation as ordered above. The payment of additional compensation shall be without any prejudice to rights of land owners under section 18 of the Act, if any. (b) All the petitioners shall be entitled for allotment of developed Abadi plot to the extent of 10% of their acquired land subject to maximum of 2500 square meters. We however, leave it open to the Authority in cases where allotment of abadi plot to the extent of 6% or 8% have already been made either to make allotment of the balance of the area or may compensate the land owners by payment of the amount equivalent to balance area as per average rate of allotment made of developed residential plots. 4. The Authority may also take a decision as to whether benefit of additional compensation and allotment of abadi plot to the extent of 10% be also given to ; (a) those land holders whose earlier writ petition challenging the notifications have been dismissed upholding the notifications; and (b) those land holders who have not come to the Court, relating to the notifications which are subject matter of challenge in writ petitions mentioned at direction No. 3." 4. It is, therefore, clear that the Full Bench in Gajraj, instead of quashing the acquisition proceedings under challenge before it in regard to certain villages in which extensive development had taken place, even after holding that providing of opportunity to file objections under Section 5-A of the Act had wrongly been denied to the tenure-holders, protected the acquisition proceedings by directing for payment of additional compensation and for providing certain percentage of developed abadi plot. This benefit was restricted to the tenure holders who had challenged the acquisition proceedings before the Full Bench. 5. However, the Full Bench in paragraph 482(4) also directed that the Authority may take a decision as to whether the benefit of additional compensation and allotment of 10% abadi plot be given to those tenure-holders whose petitions to challenge the acquisition proceedings had earlier been dismissed by the Division Bench of the High Court and to those who had not filed writ petitions to challenge the notification in issue before the Full Bench. 6. The decision rendered by the Full Bench in Gajraj was assailed before the Supreme Court in Savitri Devi v. State of U.P. & Others, (2015) 7 SCC 21 . The portion of the judgment of the Supreme Court relevant to the controversy involved in this petition, is as follows:- "46. Thus, we have a scenario where, on the one hand, invocation of urgency provisions under Section 17 of the Act and dispensing with the right to file objection under Section 5-A of the Act, is found to be illegal. On the other hand, we have a situation where because of delay in challenging these acquisitions by the landowners, developments have taken in these villages and in most of the cases, third party rights have been created. Faced with this situation, the High Court going by the spirit behind the judgment of this Court in Bondu Ramaswamy and Others (2010) 7 SCC 129 came out with the solution which is equitable to both sides. Faced with this situation, the High Court going by the spirit behind the judgment of this Court in Bondu Ramaswamy and Others (2010) 7 SCC 129 came out with the solution which is equitable to both sides. We are, thus, of the view that the High Court considered the ground realities of the matter and arrived at a more practical and workable solution by adequately compensating the landowners in the form of compensation as well as allotment of developed abadi land at a higher rate i.e. 10% of the land acquired of each of the landowners against the eligibility and to the policy to the extent of 5% and 6% of Noida and Greater Noida land respectively. 56. Keeping in view all these peculiar circumstances, we are of the opinion that these are not the cases where this Court should interfere under Article 136 of the Constitution. However, we make it clear that directions of the High Court are given in the aforesaid unique and peculiar/specific background and, therefore, it would not form precedent for future cases." (emphasis supplied) 7. Learned counsel for the petitioners has stated that though the notification issued under section 4(1) of the Act by which the land of the petitioners was acquired was under challenge before the Full Bench in Gajraj but as the petitioners had not filed any writ petition, the petitioners are covered by paragraph 482(4) of the judgment in Gajraj which required the Authority to take a decision as to whether the benefit of additional compensation and allotment of abadi land to the extent of 10% should also be given to those landowners who had not filed writ petitions to challenge the notification. Learned counsel also stated that the petitioners had been paid 64.70% additional compensation but the petitioners are also entitled to 10% abadi plot in terms of the decision of the Full Bench in Gajraj. 8. Learned counsel for the petitioners submitted that the decision taken by NOIDA not to allot 10% abadi land to tenure holders whose acquisitions were covered by the Full Bench in Gajraj but had not filed petitions to challenge the acquisition proceedings is arbitrary as there is no rationale in not granting this benefit to persons who had not filed writ petitions, particularly when such persons have been granted the additional compensation of 64.70%. 9. 9. Sri Kaushalendra Nath Singh, learned counsel appearing for Noida has, however, submitted that the Full Bench in Gajraj had left it open to the Authority to take a decision as to whether additional compensation and 10% abadi land had to be given to such persons who had not filed writ petitions. The submission is that the Authority after carefully examining the financial position and the land available with the Authority took a conscious decision to provide 64.70% additional compensation to such persons who had not filed writ petitions to challenge the acquisition proceedings but in view of the paucity of land available with the Authority, 10% abadi land was being provided to only such persons who had filed writ petitions and not to those who had not filed writ petitions. Learned counsel submitted that this policy decision does not suffer from any arbitrariness which may call for interference by the Court under Article 226 of the Constitution. 10. We have carefully considered the submissions advanced by learned counsel for the parties. 11. It is as a consequence of the Full Bench decision in Gajraj and the decision rendered by the Supreme Court in Savitri Devi that the Authority was required to examine as to whether it would pay additional 64.70% compensation as also 10% abadi land to land owners who had not filed writ petitions to challenge the acquisition proceedings. It is on a consideration of various factors that the Authority took a conscious decision to pay only 64.70% additional compensation to such land owners who had not filed writ petitions. The Authority also decided not to allot 10% abadi land to such persons. 12. A Division Bench of this Court in Mange @ Mange Ram v. State of U.P. & Ors., 2016 (8) ADJ 79 examined this issue and dismissed the writ petition holding that the action of the respondents in not giving 10% abadi land to such persons who had not filed writ petitions, is neither arbitrary nor discriminatory. We see no good reason to take a different view. 13. We see no good reason to take a different view. 13. It needs to be remembered that the Full Bench in Gajraj had issued specific directions for providing 64.70% additional compensation and 10% abadi land to such persons who had filed writ petitions but in regard to such tenure holders who had not challenged the acquisition proceedings, left it open to the Authority to take a decision to provide 64.70% additional compensation as also to allot 10% abadi land. The petitioners do not have a vested right to claim 64.70% additional compensation and 10% abadi land. They were entitled to receive compensation in terms of the award made by the Special Land Acquisition Officer under section 11 of the Act. This additional compensation of 64.70% and 10% abadi land was granted by the Full Bench in Gajraj to save the acquisition as it had found that dispensing with the enquiry under section 5-A of the Act was not justified. The petitioners admittedly had not filed any writ petition to challenge the acquisition proceeding and had slept over their rights. The Authority, however, in view of the directions contained in paragraph 482(4) of the judgment rendered by the Full Bench in Gajraj, took a decision to provide only 64.70% additional compensation. This policy in our opinion does not suffer from any arbitrariness. The Full Bench had drawn a distinction between those who had filed writ petitions and those who had not. The petitioners cannot be permitted to contend that the same benefit should be given to them as was provided to those who had filed writ petitions. 14. Thus, for all the reasons stated above, no relief can be granted to the petitioners. 15. The writ petition is, accordingly, dismissed.