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2018 DIGILAW 1612 (ALL)

Ram Nayan v. State of U. P.

2018-07-23

RAJESH SINGH CHAUHAN, VIKRAM NATH

body2018
JUDGMENT : 1. Heard learned counsel for the petitioners and Shri. Siddhartha Dhaon, learned Additional Chief Standing Counsel for the State-respondents. 2. The land of the petitioners being Khasra No. 307, area 0.055 hectares was utilized by the Public Works Department, Faizabad for construction of road without drawing any acquisition proceedings or without taking consent of the petitioners or without getting sale deed executed from the recorded tenure holders of the land in question. 3. The petitioners, aggrieved by the above action of the respondents, approached this Court by way of Writ Petition No. 11733 (L/A) of 2016 [Ram Nayan and Ors. v. State of U.P. & Ors.]. This Court disposed off the said petition by order dated 23.8.2016, requiring the District Magistrate, Faizabad to look into the matter and to take appropriate decision within 3 months and if the petitioners were found entitled for compensation the same was to be paid. The operative portion of the order dated 23.8.2016 is re-produced below:- "Accordingly, the writ petition is disposed off with a direction to the respondent No. 5 to make an enquiry into the matter. The petitioners shall file all the documents in relation to their grievance. The District Magistrate, Faizabad shall proceed in accordance with law to decide the matter within three months from the date of production of a certified copy of this order. The District Magistrate shall call for such information as required from the Public Works Department and in the event, if the petitioners are found entitled for such compensation they shall be paid compensation. The District Magistrate shall also ensure availability of the budget for disbursing the same to the petitioners." 4. The said direction of this Court was filed before the respondents, whereupon the Executive Engineer, Construction Division-2, Pub-he Works Department, Faizabad passed an order dated 21.11.2016, determining the compensation for the petitioners to be Rs. 2,36,500/-. This amount was determined as per the rate determined by the Committee constituted by the Collector (Annexure Nos. 13 and 14 to the petition). 5. Aggrieved by the said communication the petitioners again approached this Court by way of Writ Petition No. 8946 (L/A) of 2017 [Ram Nayan and Ors. v. State of U.P. & Ors.]. 2,36,500/-. This amount was determined as per the rate determined by the Committee constituted by the Collector (Annexure Nos. 13 and 14 to the petition). 5. Aggrieved by the said communication the petitioners again approached this Court by way of Writ Petition No. 8946 (L/A) of 2017 [Ram Nayan and Ors. v. State of U.P. & Ors.]. The Division Bench, after recording that the petitioners had refused to accept the amount offered and also that the negotiations had failed, disposed off the petition with a direction to the District Magistrate to take appropriate steps for acquisition of the land, in accordance to law, and fixed a period of six months for concluding the said proceedings. The operative portion of the order dated 26.4.2017 is re-produced below:- "In the aforesaid background, we direct the District Magistrate concerned to take appropriate steps for acquisition in accordance with law and get the proceedings concluded with the aid of the other State Authorities, preferably within six months from the date of presentation of certified copy of this order." 6. Despite the above direction, the Executive Engineer, Public Works Department has again issued an order dated 28.9.2017, this time offering an amount of Rs. 10,34,000/- to the petitioners and requesting them to execute the sale deed. 7. The present petition has been filed praying for quashing of the order dated 28.9.2017 and for other connected reliefs. 8. Earlier, when the matter had come up before this Court a detailed order was passed on 21.02.2018, which is reproduced below:- "Heard learned Counsel for the petitioners and Sri. Shailendra Singh Chauhan learned Counsel for the State-respondents. A perusal of the material on record reveals that the State Officers are either not able to under the orders passed by this Court or are deliberately trying to scuttle the directions issued and are again beating about the bush by repeating the same mistake which they have committed earlier. In the earlier order dated 26.4.2017 passed by this Court in Land Acquisition No. -8946 of 2017 it was clearly provided that in view of the fact that the negotiations had failed therefore, the only option left for the State Authorities was to acquire the land under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, until and unless they decided to return the land of the petitioner. The Court had granted six months' time to the District Magistrate concerned to initiate and conclude the acquisition proceedings with the aid of the other State Authorities. After about six months the impugned officer order had been issued by the Executive Engineer dated 28.9.2017 (Annexure No. -1 to the writ petition), whereby again the District Magistrate Faizabad constituted a Committee for determination of the rate at which compensation would be payable for which sale deed may be executed by the petitioner. This was not the direction issued by this Court. The District Magistrate at the first instance committed error in constituting a fresh committee, whereas he was required to take appropriate steps for acquisition of land under the provisions of 2013 Act. Thereafter, Executive Engineer has again passed an order offering certain rate for the land utilized by the Public Works Department. We accordingly, direct that the District Magistrate Faizabad and the Executive Engineer Nirman Khand-2, Public Works Department, Faizabad, to remain present before this Court along with their respective explanations as to why the direction contained in the aforesaid order, dated 26.4.2017 have not been complied with so far and also about the clear violation of the said directions. List this case on 7.3.2018. On the said date both the Officers shall remain present. Copy of the order be provided to Sri. Shailendra Singh Chauhan, learned Additional Chief Standing Counsel free of cost today itself for necessary compliance." 9. Thereafter, again the matter was taken up on 07.03.2018 and in view of the affidavits filed by the District Magistrate, Faizabad and the Executive Engineer concerned, the Court passed another detailed order, which is reproduced below:- "Pursuant to order dated 21.02.2018, Dr. Anil Kumar, District Magistrate, Faizabad and Shri. C.P. Gupta, Executive Engineer, Public Works Department, Faizabad are present before the Court today. Shri. Abhinav Narain Trivedi, learned Additional Chief Standing Counsel has filed affidavits, duly sworn by the District Magistrate and Executive Engineer, before us. In the affidavit of the District Magistrate it has been stated that he joined as District Magistrate on 8.9.2017 however, the Committee has been constituted by the earlier District Magistrate on 25.8.2017. The Committee submitted it's report which was approved by the present District Magistrate on 22.9.2017. In paragraph Nos. 2 and 17 of the affidavit District Magistrate has tendered unconditional and unqualified apology. The Committee submitted it's report which was approved by the present District Magistrate on 22.9.2017. In paragraph Nos. 2 and 17 of the affidavit District Magistrate has tendered unconditional and unqualified apology. After the order dated 21.2.2018 was communicated, the mistake committed was realized and thereafter a complete proposal in the required format provided under Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 has since been forwarded to the Director, Land Acquisition Directorate, Board of Revenue, U.P. for taking further steps for publication. It is further stated that as and when the publications are made under the provisions of 2013 Act, further steps would be taken to ensure full and actual compliance of the judgment of this Court dated 26.4.2017. The Executive Engineer in his affidavit has also tendered unconditional apology in paragraph Nos. 2 and 15. In paragraph 13 it is stated that the officer order dated 28.9.2017, impugned in the present Writ Petition, has since been withdrawn on 3.3.2018 after receiving copy of the order of this Court dated 21.2.2018. Further, it is stated that it was on account of the communication received from the office of the District Magistrate that he had issued the office order. In paragraph 14 it is stated that steps for initiation of acquisition proceedings in terms of 2013 Act has already been initiated. Further, Shri. Trivedi representing the respondents has upon instructions stated that it would take a minimum of 3 months for the exercise under the 2013 Act to be completed which would include not only publication of the notification but also declaration of the award and payment of compensation to the petitioners. We accordingly direct that this matter may be listed on 09.07.2018. This will provide 4 months margin to the respondents to ensure that the judgment dated 26.4.2017 is fully complied with. On the next date, the District Magistrate and the Executive Engineer will again remain present, however, the only condition under which their presence would be exempted would be that affidavits of both the officers are filed placing on record the payment of compensation to the petitioners as per the award that has to be given under the 2013 Act and if the award is not given and compensation not paid, both the officers will remain present." 10. Further, on 09.07.2018 both the Officers filed their separate affidavits stating compliance of the directions issued by this Court from time-to-time. On the said date learned counsel for the petitioners prayed for a week's time to file objections, if any, to the affidavit filed by the two Officers. Accordingly, the matter was adjourned for today, i.e. 23.7.2018. 11. Objections have been filed by the petitioners in which it is admitted that the facts as stated in the two affidavits of the District Magistrate and Executive Engineer, regarding drawing of the acquisition proceedings, declaration of the award and payment of compensation to the petitioners, is not disputed. 12. However, the petitioners have raised their concern with regard to the undue long harassment of the petitioners for almost 28 years and they having been denied any compensation for almost 3 decades from the time their lands were illegally utilized by the State. It is further stated that the rate of compensation determined, in the making of the award, is not the correct rate and adequate compensation has not been paid. The petitioners have already represented for making a reference to the Court for enhancement on 16.7.2018. 13. The present petition having been filed for quashing of the order dated 28.9.2017, passed by the Executive Engineer (respondent No. 2), and also for appropriate direction being issued for payment of compensation as per the 2013 Act and both the said reliefs having been granted, inasmuch the respondent No. 2 had already withdrawn the impugned order dated 28.09.2017, and thereafter the respondent Nos. 2 and 3 initiated the proceedings for acquisition under the 2013 Act, which after due publication, concluded in the making of the award and further as per the award the determined compensation having been paid to the petitioners, does not require any further consideration. 14. Substantial reliefs claimed having already been granted, the third relief, which is with regard to fixation of the circle rate, cannot be dealt with in this petition. If the market value applied for determining the compensation being less, as alleged by the petitioners, the remedy would be to apply for enhancement. The petitioners have already availed the remedy of reference for enhancement of compensation under Section 64 of the 2013 Act. The same would be dealt with in accordance to law. 15. If the market value applied for determining the compensation being less, as alleged by the petitioners, the remedy would be to apply for enhancement. The petitioners have already availed the remedy of reference for enhancement of compensation under Section 64 of the 2013 Act. The same would be dealt with in accordance to law. 15. As the petitioners have been harassed by the respondents and despite specific directions of this Court contained in the order dated 26.4.2017, no compliance was made for acquiring the property as directed, but again an offer was made to accept certain amount, which compelled the petitioners to file this present petition and it is only after the officers were summoned in this case that they took acquisition proceedings. 16. We are satisfied that the petitioners have faced harassment at the hands of the respondents and for which this petition deserves to be disposed off with costs to the petitioners. Cost fixed at Rs. 1,25,000/- (Rs. One lakh and twenty five thousand only) to be paid to the petitioners in equal proportion within two months from today, failing which the petitioners would be at liberty to move an appropriate application in this petition. 17. This Writ Petition stands disposed off in view of the specific developments that have taken place, with the observations and directions made in this order.