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2018 DIGILAW 1268 (ALL)

Jaypee Infratech Ltd. v. State of U. P.

2018-05-18

MAHESH CHANDRA TRIPATHI

body2018
JUDGMENT : M.C. Tripathi, J. 1. Heard Shri Rohan Gupta, learned Counsel for the petitioner-company; Shri Rajesh Srivastava, learned Standing Counsel appearing for the State respondent Nos. 1 to 5; Shri Kaushalendra Nath Singh, learned Counsel for New Okhla Industrial Development Authority (NOIDA) and Shri Suresh Singh, learned Counsel appearing for Yamuna Expressway Industrial Development Authority (YEIDA). Notice need not be issued to the private respondent No. 8, in view of the order proposed to be passed. 2. Jaypee Infratech Limited, a Company incorporated under the provisions of Companies Act, 1956 through its authorized representative, is before this Court assailing the ex-parte report of the Revenue Inspector dated 9.9.2017, countersigned by the Tehsildar on 11.9.2017; the order dated 10.1.2018 passed by the fifth respondent, Sub Divisional Magistrate, Dadri, District Gautam Budh Nagar and the order dated 18.4.2018 passed by the third respondent, Additional Commissioner-Ill (Administration), Meerut Division, Meerut and for direction to the respondents not to interfere in its peaceful possession over the acquired land in Khasra No. 574, situated at Village Gejha, Tilpatabad, District Gautam Budh Nagar leased out to it on 15.2.2008. 3. Record in question reflects that the State Government vide its notification dated 24.4.2001 constituted 'Taj Expressway Industrial Development Authority' (TEIDA) under U.P. Industrial Area Development Act, 1976 for implementing the Yamuna Expressway Project and allied development in the region. The petitioner-company is the concessionaire for the Yamuna Expressway Project vide Concession Agreement dated February 7, 2003. Thereafter, the concession agreement was entered into between YEIDA and the predecessor of the petitioner-company (Jaiprakash Industries Limited). Subsequently, Jaiprakash Industries Limited assigned the concession agreement with all its rights and obligations in favour of the petitioner-company. The aforesaid concession agreement is still subsisting and binding upon the parties to the agreement. As per terms of the concession agreement, the land for development was leased out in favour of the petitioner-company in view of the fact that the expenditure towards construction of Yamuna Expressway was to be born by the petitioner-company. 4. It has also been averred in the writ petition that the land for development has been given to the petitioner-company on payment of premium equivalent to acquisition cost without any additional charge for a period of 90 years. The petitioner-company has been leased out 498.4 hectares of land including part of Khasra No. 574 of Village Tilpatabad, District Gautam Budh Nagar situated in Sector 129. The petitioner-company has been leased out 498.4 hectares of land including part of Khasra No. 574 of Village Tilpatabad, District Gautam Budh Nagar situated in Sector 129. The total area of the Khasra No. 574 is 5.7760 hectares out of which 4.8323 hectares in the year 1995. Consequently, an area of 3.624 hectares land was leased out to the petitioner company vide lease deed dated 15.2.2008. The possession of the acquired land was also handed over to the petitioner-company after its physical survey and demarcation on the spot. Thereafter the land in question was transferred to the petitioner-company by respondent No. 7 and since then the petitioner-company is in possession of the land in dispute. 5. Thereafter, the NOIDA approved the lay out plan on 23.3.2011 and further the lay out plan was revised and approved by the respondent No. 6 on 20.2.2015. After verification of the land transferred to the petitioner company and approval of the lay out plan, several plots were carved out by the petitioner-company in the land leased out to it including the portion of Khasra No. 574, which has been leased out to the petitioner-company. Even part of commercial plot No. C3G and C3H1 have been duly demarcated at the site and even in these plots, the third party interest/rights have also been created. Plot No. C3H1 has already been subleased to South Indian Bank through registered lease deed dated 25.3.2017. After 19 years of acquisition of the land in dispute and after seven years of transfer of the land to the petitioner-company on the basis of lease, the controversy was crept up in the year 2014 when the private respondent No. 8, Kalu Ram filed Writ Petition No. 29339 of 2014 (Kalu Ram and 10 others v. State of UP and 4 others) claiming that Khasra No. 574 is divided in three parts i.e. 574/1, 574/2 and 574/3 and he is owner of Plot No. 574/1 having total area 18-15-0 bigha, out of which an area of 17-5-0 bigha was acquired leaving the balance of 1-10-0 bigha. He had sought relief to return the un-acquired land being Khasra No. 574/1 area 1-10-0 bigha i.e. 0.3920 hectares. 6. He had sought relief to return the un-acquired land being Khasra No. 574/1 area 1-10-0 bigha i.e. 0.3920 hectares. 6. The aforesaid writ petition was entertained by a Division Bench of this Court on 29.5.2014 and an interim order was passed directing the respondents not to encroach the disputed plot No. 574/1 until further orders of the Court. The respondent Mo. 8 filed Contempt Application (Civil) No. 4036 of 2014 against the petitioner-company and the respondent No. 6 for disobedience of the interim order dated 29.5.2014. In the said proceeding, an affidavit was filed on behalf of the NOIDA stating that the land leased out to the petitioner-company falls within the acquired area of Khasra No. 574. Thereafter, the interim order dated 29.5.2014 was modified by this Court on 28.1.2015 and the interim order dated 29.5.2014 was clarified to the extent that direction to the respondents not to encroach upon plot No. 574/1 shall remain confined to 1-10-0 of plot No. 574/1, which was not subject matter of acquisition. Finally, the aforesaid writ petition was disposed of a Division Bench of this Court on 28.1.2015 with following observations:-- "In this writ petition, the petitioners claim that they are co-owners with transferable rights of the land comprised in Khasra No. 574/1 area 18-15-0 Bigha, out of which, some part of the land measuring 17-5-0 Bigha has been acquired but they continue to remain in possession of the unacquired portion thereof. The apprehension of the petitioners is that excess of land than which has been acquired may be covered during construction of the road and taken possession of violating their rights under Article 300-A of the Constitution of India. The petitioners have also referred to the order dated 8.1.2014 passed in Writ-C No. 895 of 2014, said to be related with a similarly circumstanced person, whereby this Court has disposed of the said writ petition with the directions for demarcation and consequential protection in respect of the land which has not been the subject of acquisition. In Writ-C No. 895 of 2014, a Coordinate Bench of this Court, after taking note of similar nature submissions, has observed and directed as under: "Heard learned Counsel for the petitioner, Sri Shivam Yadav, learned Counsel for the respondent No. 3 and learned Standing Counsel for respondents 1 and 2. In Writ-C No. 895 of 2014, a Coordinate Bench of this Court, after taking note of similar nature submissions, has observed and directed as under: "Heard learned Counsel for the petitioner, Sri Shivam Yadav, learned Counsel for the respondent No. 3 and learned Standing Counsel for respondents 1 and 2. The petitioners claim that they are bhumidhars of plot No. 340, a part whereof came to be acquired for the purpose Faridabad-Noida-Ghaziabad road to be constructed by the respondent No. 3. The said acquisition has been made and the endorsement about the area that has been acquired is made in the Khatauni of 1413-1418 Fasli, a copy whereof has been filed along with the writ petition at page 19. Learned Counsel for the petitioners submits that it is only some area, which has been taken out of plot No. 340 for the purpose of construction of the said road and the balance of the land currently stands recorded in the names of the petitioners as reflected in Khatauni of 1419-1424 Fasli, a copy whereof has been filed as Annexure No. 1 to the writ petition. Having perused the same, it appears that the petitioners apprehend that excess of land than which has been acquired may be covered during construction of the road, which land according to the petitioners is not the subject matter of acquisition. They, therefore, pray that the land, which is left over cannot be encroached upon and taken possession of as that would violate Article 300-A of the Constitution of India. Having considered the submissions, the dispute can be very conveniently resolved if the demarcation of the plot upon acquisition is carried out as is reflected in the aforesaid Khataunis, referred to here-in-above. Consequently the respondent No. 2 shall get the demarcation carried out after notice to the petitioners and respondent No. 3 in accordance with law on the spot within three months from the date of the production of a certified copy of the order. The petitioners shall not be dispossessed from the area of the plot, which is in their possession after the acquisition has been made as pointed out herein-above. The petitioners shall not be dispossessed from the area of the plot, which is in their possession after the acquisition has been made as pointed out herein-above. Accordingly, this writ petition is disposed of." The position aforesaid being directly applicable to the present case too, this petition also stands disposed of with the directions that the respondent No. 2 shall get the requisite demarcation carried out on the spot after notice to the petitioners and respondent No. 3 in accordance with law within three months from the date of production of a certified copy of this order. The petitioners shall not be dispossessed from the area of the land in question, which is in their possession after the acquisition has been made as pointed out - hereinabove." 7. This much is also reflected from the record that the respondent No. 8 filed another Contempt Application (C) No. 1273 of 2017 against the respondent No. 4 for willful and deliberate disobedience of the order of this Court dated 28.1.2015 and the aforesaid contempt application was decided on 23.3.2017. Finally, the Sub Divisional Magistrate, Tehsil Dadri, District Gautam Budh Nagar vide his order dated 30.8.2017 directed the Tehsildar, Dadri to measure the land in dispute on 8.9.2017 after giving information to NOIDA. In turn, the Tehsildar, Dadri directed the Revenue Inspector on 8.9.2017 to do the needful in the matter. The Revenue Inspector issued notice to Kalu Ram and the NOIDA. Thereafter, the NOIDA requested the Revenue Authorities not to carry out the demarcation proceeding on the Sunday as its officers would not be able to present on the said date. The Revenue Inspector has not considered the request of the respondent No. 6 and submitted his report on 11.9.2017, wherein it has been mentioned that the land leased out to the petitioner-company has been duly demarcated and the petitioner-company has fixed tin shed thereon. Thereafter, he had proceeded to demarcate the land of Kalu Ram and Jarnail Singh area 0.3920 hectares and 0.0380 hectares within the acquired area leased out to the petitioner-company. The aforesaid demarcation by the Revenue Inspector has been carried out in purported compliance of the order of this Court dated 28.1.2015. Thereafter, he had proceeded to demarcate the land of Kalu Ram and Jarnail Singh area 0.3920 hectares and 0.0380 hectares within the acquired area leased out to the petitioner-company. The aforesaid demarcation by the Revenue Inspector has been carried out in purported compliance of the order of this Court dated 28.1.2015. The petitioner-company filed its objection on 22.9.2017 against the report of the Revenue Inspector dated 9.9.2017, countersigned by the Tehsildar on 11.9.2017 but without deciding the objection of the petitioner-company the respondent No. 5 has proceeded to pass the impugned order on 10.1.2018 by which he has directed to make Pakka Dolbandi in the land leased out to the petitioner-company in pursuance of the report of the Revenue Inspector. Aggrieved with the said order dated 10.1.2018, the petitioner-company preferred a revision under section 210 of U.P. Revenue Code, 2006 before the second respondent, Commissioner, Meerut Division, Meerut. Finally, the aforesaid revision has been dismissed by the third respondent, Additional Commissioner No. III (Administration), Meerut Division, Meerut. 8. In this backdrop, Shri Rohan Gupta, learned Counsel for the petitioner-company submits that the aforesaid order was passed directing the respondents for demarcation of unacquired portion of land of Khasra No. 574 and the demarcation was to be done by the Competent Authority after giving notice to the NOIDA and respondent No. 8, Kalu Ram. In response of the order of this Court dated 18.11.2016, the respondent No. 8 filed his representation before the respondent No. 4 and the same was registered as Case No. 116/2016. The said case was decided on 21.12.2016 directing the respondent No. 5 to demarcate plot No. 574 as per revenue map in accordance with law after giving information to the affected parties. The impugned orders have been passed in clear violation of the order dated 18.11.2016 passed by this Court in Writ Petition No. 29339 of 2014 in terms of which the demarcation of the property of eighth respondent namely Kalu Ram son of Pemraj was to be made in part of land of plot No. 574, which was not the subject matter of acquisition. In compliance of the aforesaid directive issued by the Division Bench of this Court, the Revenue Inspector prepared a report dated 9.9.2017, which was countersigned by the Tehsildar on 11.9.2017. In compliance of the aforesaid directive issued by the Division Bench of this Court, the Revenue Inspector prepared a report dated 9.9.2017, which was countersigned by the Tehsildar on 11.9.2017. The same was done in absence of the NOIDA authority as well as the petitioner, despite noting that the land is in possession of the petitioner-company, in the garb of the compliance of the aforesaid order of this Court, the alleged demarcation proceeding commenced in the acquired land (leased out to the petitioner company). The petitioner-company had filed detailed objections on 22.9.2017 but without considering these objections the order impugned dated 10.1.2018 has been passed by the fifth respondent directing for 'pakka dolbandi' of the land in dispute in terms of the ex-parte report. The said order had been assailed by the petitioner-company by preferring Revision under section 210 of U.P. Revenue code, 2006 before the Revisional Authority i.e. second respondent but in most arbitrary manner and without considering the ground of revision the leave was accorded to the respondents to demarcate the land of eighth respondent including leased out land to the petitioner-company. 9. Shri Rohan Gupta, appearing for the petitioner-company further submits that the petitioner-company is in physical enjoyment of the land in question which was acquired and subsequently leased out in favour of the petitioner-company and since 15.2.2018 the petitioner-company is in continuous possession of the land in dispute and in the garb of the order impugned the respondents cannot restrain the petitioner-company either verbally or in writing from using that portion of the land falling in Khasra No. 574. While passing the order impugned dated 10.1.2018, the Sub Divisional Magistrate has not appreciated the correct facts and directed for pakka dolbandi of the land, which was acquired and leased out to the petitioner in terms of the ex-parte report of the Revenue Inspector, behind the back of the petitioner-company and without giving any opportunity of hearing in the matter. Moreover, the Division Bench of this Court had directed for demarcation of the land, which was unacquired and at no point of time any liberty was given to the revenue officials as well as private respondents to interfere in the peaceful possession of the petitioner-company. The said action is causing grave prejudice and the third party interests have already been created on the property in question. The said action is causing grave prejudice and the third party interests have already been created on the property in question. The private respondent No. 8 is blackmailing the petitioner company and as such, this Court should come for rescue and reprieve to the petitioner-company. 10. On the other hand, Shri Rajesh Srivastava, learned Standing Counsel has vehemently opposed the writ petition and submits that the land in question is minjumla land and at no point of time, any actual demarcation had taken place. The petitioner-company has not approached to this Court with clean hands showing any relevant documents to indicate that at any point of time actual demarcation has been carried out and actual possession of the demarcated property has been given to it. An objection has been raised by the private respondents to the extent that the authority and the petitioner-company without any demarcation of the land in question are changing the ground realities and even the property of respondent No. 8 namely Kalu Ram, who is claiming to be owner of the unacquired land, has not been demarcated then without actual pakka dolbandi the land could not be ensured. Once the Division Bench of this Court has already directed for demarcation of the land in question then the respondent authority is also duty bound to carry out and comply with the order passed by the Division Bench. Moreover, once the petitioner-company had also assailed the validity of the ex-parte report of the Revenue Inspector dated 9.9.2017, which was countersigned by the Tehsildar on 11.9.2017 as well as the order impugned dated 10.1.2018 before the Revisional Authority and after considering the entire material available on record the Revisional Authority has set aside the impugned order dated 10.1.2018 and remanded back the matter to the revenue official for actual demarcation, then in such situation the petitioner-company is not aggrieved with the order impugned dated 10.1.2018. 11. 11. Shri Rajesh Srivastava, has further vehemently contended that the petitioner-company is fully conscious and aware of the ground reality, which was the sole reason for preferring a suit for division of holdings under section 116 of UP Revenue Code, 2006 and in such situation, the petitioner-company cannot ask the respondents to stop the exercise, which is being carried out in compliance of the order passed by the Division Bench of this Court but at the same time he has also assured that in case the petitioner-company cooperates, then the respondents would also ensure to demarcate the entire land, which was leased out in favour of the petitioner-company. He further makes submission that it is admitted situation that Plot No. 574 is minjumla. No doubt, the possession of the land in question was handed over in favour of the petitioner-company by the NOIDA but in absence of actual demarcation, such dispute cannot be resolved and at no point of time actual demarcation of the property in question has ever been carried out. In case the petitioner-company is aggrieved with the order dated 28.1.2015 passed by the Division Bench of this Court in Writ C. No. 29339 of 2014, then he could file an appropriate application for recalling the order but no attempt has been made and for all practical purpose the said direction has attained finality and the said exercise is to be carried out by the revenue officials. 12. Confronted with this situation, Shri Rohan Gupta, learned Counsel for the petitioner very fairly states that the endeavour of the petitioner-company is that the actual land, which has been leased out to the petitioner-company, should not be curtained on the spot and the revenue officials should not unnecessarily interfere in the peaceful possession of the petitioner-company. 13. In the aforesaid facts and circumstances, this Court is of the considered opinion that the direction so issued by the Division Bench of this Court has to be complied with and without cooperation of the petitioner-Company, it is not possible to carry out actual demarcation of the land in question. 13. In the aforesaid facts and circumstances, this Court is of the considered opinion that the direction so issued by the Division Bench of this Court has to be complied with and without cooperation of the petitioner-Company, it is not possible to carry out actual demarcation of the land in question. In view of the above, this writ petition is disposed of finally with a direction to the fourth respondent, the Collector, Gautam Budh Nagar to ensure fresh demarcation of the land in question by a team consisting of Additional District Magistrate, District Gautam Budh Nagar and the concerned Tehsildar and in presence of Kalu Ram, son of Premraj, who has been arrayed as respondent No. 8 to the writ petition, and the representatives of NOIDA & YEEDA, as expeditiously as possible and preferably within a period of three months from the date of production of a certified copy of this order before him. Meanwhile, in the garb of the demarcation proceeding, the actual physical possession of the petitioner-company would not be changed.