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2022 DIGILAW 1277 (ALL)

Kamla Devi v. State of U. P.

2022-08-11

J.J.MUNIR, RAJESH BINDAL

body2022
ORDER : 1. This writ petition has been filed challenging an order dated 26th May, 2022 passed by the State Government declining to declare proceedings for acquisition of the petitioner’s land comprised of Gata No. 340/1, measuring 0-10-3 (0.12836 hectares), situate in Village Kunda, District Meerut lapsed under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short, ‘the Act of 2013’). 2. Heard Mr. Vivek Saran, learned Counsel for the petitioner, Mr. Rajeev Singh, learned Standing Counsel for appearing on behalf of respondent Nos. 1 to 4 and Mr. J.N. Maurya, learned Counsel appearing for respondent No. 5. 3. The facts leading to this petition are that large tracts of land, part of Revenue Villages of Achraunda, Kanchanpur Ghopla, Kansa, Nagla Sherkho, Kunda and Rithani in District Meerut were proposed to be acquired for the purpose of development of Shatabdi Nagar Awasiya Yojna, Meerut. A notification under Section 4(1) read with Section 17(1) of the Land Acquisition Act, 1894 (for short, ‘the Act of 1894) dated 14.08.1987 was issued. The aforesaid notification was followed by a declaration under Section 6(1) read with Section 17(4) of the Act of 1894 dated 04.09.1987. Award for the land acquired was announced on 22.02.1990, which was amended on 15.03.1990 and 25.06.1990. A part of this acquisition was a plot bearing No. 340/1, measuring 0-10-3 (0.12836 hectares) in Village Kunda, District Meerut. The aforesaid land belongs to the petitioner, Smt. Kamla Devi. The dispute in this writ petition relates to the aforesaid plot, which shall be hereinafter referred to as ‘the land in dispute’. 4. It is the petitioner’s case that physical possession of the land in dispute was never taken by the State or transferred to the Meerut Development Authority (for short, ‘the Development Authority’) and no compensation has been paid to her till date. In the circumstances, upon coming into force of the Act of 2013 w.e.f. 1st January, 2014, a period of five years have elapsed since the making of the award, and physical possession of the land has not been taken by the State Government. In the circumstances, upon coming into force of the Act of 2013 w.e.f. 1st January, 2014, a period of five years have elapsed since the making of the award, and physical possession of the land has not been taken by the State Government. It is the petitioner’s case that in similar circumstances, one Harbhajan Singh, whose land was acquired for the same purpose and through the same notification, had the subject land returned to him by a decision of the State Government dated 23rd January, 2015, holding the acquisition to have lapsed under Section 24(2) of the Act of 2013. 5. The petitioner has made a grievance that his case has been treated differentially than Harbhajan Singh, though identical on all premises. The petitioner approached this Court, seeking a declaration that proceedings relating to the land in dispute for acquisition be declared as lapsed under Section 24(2) of the Act of 2013 through Writ-C No. 34122 of 2015. The said writ petition was disposed of by this Court vide order dated 02.03.2017, granting liberty to the petitioner to raise her claim before the Collector, Meerut, who was directed to process the petitioner’s claim within four months from the date of receipt of a copy of this Court’s order. The Collector was further directed to convey his recommendations to the State Government after processing the petitioner’s claim, whereas the State Government was directed, upon receiving the Collector’s recommendation, to decide the petitioner’s claim about lapsing of acquisition. 6. The petitioner submitted her claim to the District Magistrate, Meerut in terms of this Court’s order dated 02.03.2017. The District Magistrate called for reports from the Tehsildar, who in turn sought the Lekhpal’s report. The Lekhpal and the Tehsildar submitted a report on 16.11.2017 to the District Magistrate saying that the petitioner is in actual physical possession of the land in dispute. The Tehsildar/ Lekhpal’s report dated 16.11.2017 is on record as Annexure No.5 to the writ petition. It was, however, reported by the Lekhpal that Gata No. 340 of Village Kunda was a much subdivided plot and its subdivisions were located in different Khata numbers of the village. It was reported that so far as the land in dispute is concerned (Gata No. 340/1, measuring 0.1260 hectares), it was recorded in the khatauni in the name of the Meerut Development Authority Shatabdi Nagar Yojna. It was reported that so far as the land in dispute is concerned (Gata No. 340/1, measuring 0.1260 hectares), it was recorded in the khatauni in the name of the Meerut Development Authority Shatabdi Nagar Yojna. However on the spot, on the land in dispute, there was a Kasana Guest House, a permanent construction in existence, besides A Dharm Kanta and an office (private), where a property dealership was established. The remainder of the plot was surrounded by a boundary-wall. It is the petitioner’s further case that upon information being sought from the office of the Land Acquisition Officer (Joint Organization), Meerut under the Right to Information Act about the status of payment of compensation to the landowner relating to the land in dispute, the answer was that the awarded compensation had not been deposited in Court. This information was given on 17.12.2016 and is on record as Annexure No. 6 to the writ petition. 7. The petitioner further asserts that though the land in dispute was acquired by the State for the development of the scheme, known as Shatabdi Nagar Awasiya Yojna, by the Development Authority, they never took steps to take possession thereof. No compensation was also paid to the petitioner. There is a pointed reference to certain resolutions of the Development Authority’s Board dated 21.10.1999 and 19.12.2011, where it was resolved that such land that has house/ constructions be released from acquisition as it was not required any more. It is pointed out that regarding the land in dispute, the resolution dated 21.10.1999 shows that the Board resolved that the said land be freed from acquisition as it was not required for the Shatabdi Nagar Awasiya Yojna. Copies of the resolutions dated 21.10.1999 and 19.12.2011 are attached as Annexure Nos. 9 and 10, respectively. 8. It must be noticed here that the resolution of the Board dated 21.10.1999 does not show any decision specifically with regard to the land in dispute (Gata No. 340/1, measuring 0.3612 hectares). Rather, there is a supplementary Item No. 13, where there is an omnibus resolution proposing to exempt from acquisition 2.56 acres of land in Village Kunda, that was acquired for the Shatabdi Nagar Awasiya Yojna. The resolution does not indicate that it particularly refers to the land in dispute, or that it proposes to exempt from acquisition all lands in Village Kunda, acquired for the scheme aforesaid. 9. The resolution does not indicate that it particularly refers to the land in dispute, or that it proposes to exempt from acquisition all lands in Village Kunda, acquired for the scheme aforesaid. 9. It is urged by the petitioner that after the last of these resolutions was passed by the Development Authority, the Act of 2013 came into force and since possession of the land in dispute was never taken from the petitioner or the compensation paid in terms of the award dated 22.02.1990, as last amended on 25.06.1990, the acquisition stood lapsed under Section 24(2) of the Act of 2013. Attention of this Court has also been drawn to a report of the Additional District Magistrate (Land Acquisition) dated 13.10.2018, that was drawn up for the purpose of the State to take a decision in the matter of lapse claimed by the petitioner under Section 24(2) of the Act of 2013. The said report is said to have been made by the Additional District Magistrate (Land Acquisition), Meerut after hearing the petitioner and the Development Authority. A copy of this report dated 13.10.2018 is on record as Annexure No. 12 to the writ petition. The said report is asserted to have been forwarded to the State Government. It appears that the directions of this Court carried in the order dated 02.03.2017 passed in Writ-C No.34122 of 2015, were not carried to their logical conclusion promptly by the State and no decision was taken. This led the petitioner to file a contempt application, wherein notice was issued to the respondents. It is the petitioner’s case that the contempt rule did not avail and the petitioner was driven to bring another writ petition being Writ-C No.28526 of 2021, where a prayer was made that a mandamus be issued to the State Government to take appropriate decision for exemption of the land in dispute on the basis of the report made by the A.D.M. (L.A.), Meerut dated 13.10.2018. The said petition was entertained and the respondents were required to file a counter affidavit. However, before Writ-C No.28526 of 2021 could proceed further, the State Government rejected the petitioner's claim, seeking a declaration about lapse, relating to the land in dispute under Section 24(2) of the Act of 2013 vide order dated 26.05.2022. 10. This petition has been preferred challenging the aforesaid order, which shall be called hereinafter as 'the impugned order'. 11. However, before Writ-C No.28526 of 2021 could proceed further, the State Government rejected the petitioner's claim, seeking a declaration about lapse, relating to the land in dispute under Section 24(2) of the Act of 2013 vide order dated 26.05.2022. 10. This petition has been preferred challenging the aforesaid order, which shall be called hereinafter as 'the impugned order'. 11. Before us, Mr. Vivek Saran, learned Counsel for the petitioner has emphasized the fact that in writing the impugned order, the State Government has ignored from consideration the fact that physical possession of the land in dispute was not taken from the petitioner, pursuant to the proceedings initiated under the Act of 1894 until enforcement of the Act of 2013, and further that a period of five years and much more had elapsed from the date of the award, under the Act of 1894, when the Act of 2013 came into force, without the petitioner being paid compensation, due under the award. It is emphasized by the learned Counsel for the petitioner that the impugned order has been passed ignoring from consideration the resolutions dated 21.10.1999 and 19.12.2011, proposing to exempt from acquisition the acquired land, including the land in dispute, whereon the residents of the village concerned had constructed houses, or as said in the resolution of the year 1999, exempt 2.56 acres of land in Village Kunda. It is also argued that the impugned order is based on a unilateral report made by the Collector, where the petitioner has not been given any opportunity of hearing. 12. Mr. Rajeev Singh, learned Standing Counsel appearing on behalf of respondent Nos. 1 to 4 and Mr. J.N. Maurya, learned Advocate appearing on behalf of the Development Authority, on the other hand, submitted that the land in dispute is an acquired land of the State, that has vested in the State, free from all encumbrances long ago. It has been transferred to the Development Authority and it is up to them when, how and in what manner they would utilize different parts of the large tracts of the acquired land, spread across five villages. They have urged that case of lapse under Section 24(2) of the Act of 2013 is not even remotely established. 13. We have carefully considered the submissions made at the Bar and perused the record. 14. They have urged that case of lapse under Section 24(2) of the Act of 2013 is not even remotely established. 13. We have carefully considered the submissions made at the Bar and perused the record. 14. It is not in dispute that the land in dispute was acquired by the State for the purpose of a residential scheme to be developed by the Development Authority. The acquisition was proposed through a notification dated 14.08.1987 under Section 4 read with Section 17(1) of the Act of 1894 followed by a declaration under Section 6(1) read with Section 17(4) of the Act of 1894. The invocation of Section 17(1) followed by Section 17(4) shows that considering the urgency involved, inquiry under Section 5-A was dispensed with. Possession was immediately taken under Section 17(2) and the land in dispute vested in the State, free from all encumbrances. Award in this case was passed on 22.02.1990, which was amended on 15.03.1990 and further on 25.06.1990. The Collector has recorded it as a fact that the State transferred possession of the land in dispute (Gata No. 340/1, measuring 0-10-3) to the Development Authority. The title in the name of the Development Authority has been entered in the revenue records. 15. In this regard, we must remark that in aid of the decision taken by the State Government upon the petitioner's claim of lapse of acquisition under Section 24(2) of the Act of 2013, there is a report dated 16.11.2017 submitted by the Lekhpal to the Additional District Magistrate (Land Acquisition), Joint Organization, Meerut. The said report bears out with the finding recorded in the order impugned that the land in dispute was recorded in the revenue records in the name of the 'Meerut Development Authority Shatabdi Nagar Awasiya Yojna'. For a fact, therefore, it is very difficult to accept the petitioner's contention that possession of the land in dispute was not taken from her. The petitioner does not dispute the fact that the land in dispute was acquired as part of an acquisition for the Shatabdi Nagar Awasiya Yojna, that involved acquisition of large tracts of land, spread across five villages. The acquisition was completed by invoking urgency clause under Section 17(1), dispensing with inquiry under Section 5-A of the Act of 1894. The petitioner does not dispute the fact that the land in dispute was acquired as part of an acquisition for the Shatabdi Nagar Awasiya Yojna, that involved acquisition of large tracts of land, spread across five villages. The acquisition was completed by invoking urgency clause under Section 17(1), dispensing with inquiry under Section 5-A of the Act of 1894. In the circumstances, possession of the land in dispute, along with all the land acquired, would have to be done by the State by drawing the memorandum of possession or the panchnama. This kind of a panchnama is not to be signed by each individual landholder. It is signed by the relevant Authorities of the State and possession of the land is taken under it. It leads to vesting of the acquired land, free from all encumbrances under Section 17(2) of the Act of 1894. 16. If some of the individual, who was the owner of the land in possession at the time of acquisition, continues in possession, may be by building a house, or raising some other construction, the act of the person continuing in possession, would be trespass; it would not be evidence of possession, not being taken in the context of proceedings under Sections 4(1) and 6(1) of the Act of 1894, invoking Section 17(1). The aforesaid issue fell for consideration of a Division Bench of this Court in Shyoraj Singh and another v. State of U.P. and others, 2021 SCC OnLine All 873, where their Lordships following the decision of the Supreme Court in Indore Development Authority v. Manoharlal and others, (2020) 8 SCC 129 , held: “20. The issue as to what is meant by "possession of the land by the State after its acquisition" has also been considered by Constitution Bench of Hon'ble Supreme Court in Indore Development Authority Vs. Manoharlal and others AIR 2020 SC 1496 . It is opined therein that after the acquisition of land and passing of award, the land vests in the State free from all encumbrances. The vesting of land with the State is with possession. Any person retaining the possession thereafter has to be treated trespasser. When large chunk of land is acquired, the State is not supposed to put some person or police force to retain the possession and start cultivating on the land till it is utilized. The vesting of land with the State is with possession. Any person retaining the possession thereafter has to be treated trespasser. When large chunk of land is acquired, the State is not supposed to put some person or police force to retain the possession and start cultivating on the land till it is utilized. The Government is also not supposed to start residing or physically occupying the same once process of the acquisition is complete. If after the process of acquisition is complete and land vest in the State free from all encumbrances with possession, any person retaining the land or any re-entry made by any person is nothing else but trespass on the State land. Relevant paragraphs 244, 245 and 256 are extracted below: "244. Section 16 of the Act of 1894 provided that possession of land may be taken by the State Government after passing of an award and thereupon land vest free from all encumbrances in the State Government. Similar are the provisions made in the case of urgency in Section 17(1). The word "possession" has been used in the Act of 1894, whereas in Section 24(2) of Act of 2013, the expression "physical possession" is used. It is submitted that drawing of panchnama for taking over the possession is not enough when the actual physical possession remained with the landowner and Section 24(2) requires actual physical possession to be taken, not the possession in any other form. When the State has acquired the land and award has been passed, land vests in the State Government free from all encumbrances. The act of vesting of the land in the State is with possession, any person retaining the possession, thereafter, has to be treated as trespasser and has no right to possess the land which vests in the State free from all encumbrances. 245. The question which arises whether there is any difference between taking possession under the Act of 1894 and the expression "physical possession" used in Section 24(2). As a matter of fact, what was contemplated under the Act of 1894, by taking the possession meant only physical possession of the land. Taking over the possession under the Act of 2013 always amounted to taking over physical possession of the land. When the State Government acquires land and drawns up a memorandum of taking possession, that amounts to taking the physical possession of the land. Taking over the possession under the Act of 2013 always amounted to taking over physical possession of the land. When the State Government acquires land and drawns up a memorandum of taking possession, that amounts to taking the physical possession of the land. On the large chunk of property or otherwise which is acquired, the Government is not supposed to put some other person or the police force in possession to retain it and start cultivating it till the land is used by it for the purpose for which it has been acquired. The Government is not supposed to start residing or to physically occupy it once possession has been taken by drawing the inquest proceedings for obtaining possession thereof. Thereafter, if any further retaining of land or any re-entry is made on the land or someone starts cultivation on the open land or starts residing in the outhouse, etc., is deemed to be the trespasser on land which in possession of the State. The possession of trespasser always inures for the benefit of the real owner that is the State Government in the case. xxxx 256. Thus, it is apparent that vesting is with possession and the statute has provided under Sections 16 and 17 of the Act of 1894 that once possession is taken, absolute vesting occurred. It is an indefeasible right and vesting is with possession thereafter. The vesting specified under Section 16, takes place after various steps, such as, notification under Section 4, declaration under Section 6, notice under Section 9, award under Section 11 and then possession. The statutory provision of vesting of property absolutely free from all encumbrances has to be accorded full effect. Not only the possession vests in the State but all other encumbrances are also removed forthwith. The title of the landholder ceases and the state becomes the absolute owner and in possession of the property. Thereafter there is no control of the landowner over the property. He cannot have any animus to take the property and to control it. Even if he has retained the possession or otherwise trespassed upon it after possession has been taken by the State, he is a trespasser and such possession of trespasser enures for his benefit and on behalf of the owner." (emphasis supplied) 17. He cannot have any animus to take the property and to control it. Even if he has retained the possession or otherwise trespassed upon it after possession has been taken by the State, he is a trespasser and such possession of trespasser enures for his benefit and on behalf of the owner." (emphasis supplied) 17. In the background of the aforesaid well established legal proposition in cases of acquisition concluded under the Act of 1894, invoking the provisions of Sections 17(1) and 17(4), it is difficult to accept the petitioner's contention that possession was never taken. Moreover in this case, there is documentary evidence to show that possession was taken and the revenue records were corrected. The Lekhpal's report shows that the land in dispute is recorded in the name of the 'Meerut Development Authority Shatabdi Nagar Awasiya Yojna', which is evidence enough of possession being taken by the State and transferred to the Development Authority. 18. We are, therefore, not inclined to accept the petitioner's case that possession of the land in dispute was never physically taken so as to bring into existence one of the conditions (not taking physical possession) entitling the petitioner to claim lapse under Section 24(2) of the Act of 2013 upon its enforcement. The other condition about the compensation not being paid to the petitioner, though no longer in itself enough to entitle the petitioner to claim lapse under Section 24(2) of the Act of 2013 is also not established on facts. 19. It has been recorded in the impugned order that due compensation in respect of the land in dispute has been deposited in the Meerut Treasury in the account of revenue deposit. The contention of the petitioner that there is no deposit made in Court is no longer the requirement of the law to prevent lapse under Section 24(2) of the Act of 2013 in view of the decision of the Supreme Court in Indore Development Authority's case (supra). 20. A reading of the impugned order shows that in terms of the award that was made for the large tracts of land acquired, a total sum of Rs.37.73 crores was payable by the Development Authority. 20. A reading of the impugned order shows that in terms of the award that was made for the large tracts of land acquired, a total sum of Rs.37.73 crores was payable by the Development Authority. In satisfaction of the said award, the requisite sum of money was deposited by the Development Authority in parts up to 19.07.2010, out of which 98%, that is to say, Rs.36.49 crores was paid to the land oustees. It is, thus, evident that the sum of money due under the award was deposited by the Development Authority with the Meerut Treasury in the account of revenue deposit. The finding, therefore, recorded in the order impugned that compensation relating to the land in dispute was deposited in the Meerut Treasury in the account of revenue deposit is well founded. This deposit has clearly been made on or before 19.07.2010 and much before the enforcement of the Act of 2013. 21. It is, thus, evident that the compensation due under the award was deposited in the Government Treasury prior to enforcement of the Act of 2013 and physical possession of the land in dispute was also taken under the Act of 1894, which was handed over to the Development Authority on 06.01.1998. 22. It must be remarked that it is not necessary that the compensation in terms of the award passed under the Act of 1894 be deposited in Court prior to enforcement of the Act of 2013. It would suffice if the requisite compensation is deposited in the Government Treasury prior to the enforcement of the Act aforesaid. This position of the law would be clear from the holding in Indore Development Authority (supra), which reads: 366. In view of the aforesaid discussion, we answer the questions as under: 366.1. Under the provisions of Section 24(1)(a) in case the award is not made as on 1-1-2014, the date of commencement of the 2013 Act, there is no lapse of proceedings. Compensation has to be determined under the provisions of the 2013 Act. 366.2. In case the award has been passed within the window period of five years excluding the period covered by an interim order of the court, then proceedings shall continue as provided under Section 24(1)(b) of the 2013 Act under the 1894 Act as if it has not been repealed. 366.3. 366.2. In case the award has been passed within the window period of five years excluding the period covered by an interim order of the court, then proceedings shall continue as provided under Section 24(1)(b) of the 2013 Act under the 1894 Act as if it has not been repealed. 366.3. The word “or” used in Section 24(2) between possession and compensation has to be read as “nor” or as “and”. The deemed lapse of land acquisition proceedings under Section 24(2) of the 2013 Act takes place where due to inaction of authorities for five years or more prior to commencement of the said Act, the possession of land has not been taken nor compensation has been paid. In other words, in case possession has been taken, compensation has not been paid then there is no lapse. Similarly, if compensation has been paid, possession has not been taken then there is no lapse. 366.4. The expression “paid” in the main part of Section 24(2) of the 2013 Act does not include a deposit of compensation in court. The consequence of non-deposit is provided in the proviso to Section 24(2) in case it has not been deposited with respect to majority of landholdings then all beneficiaries (landowners) as on the date of notification for land acquisition under Section 4 of the 1894 Act shall be entitled to compensation in accordance with the provisions of the 2013 Act. In case the obligation under Section 31 of the Land Acquisition Act, 1894 has not been fulfilled, interest under Section 34 of the said Act can be granted. Non-deposit of compensation (in court) does not result in the lapse of land acquisition proceedings. In case of non-deposit with respect to the majority of holdings for five years or more, compensation under the 2013 Act has to be paid to the “landowners” as on the date of notification for land acquisition under Section 4 of the 1894 Act. 366.5. In case a person has been tendered the compensation as provided under Section 31(1) of the 1894 Act, it is not open to him to claim that acquisition has lapsed under Section 24(2) due to non-payment or non-deposit of compensation in court. The obligation to pay is complete by tendering the amount under Section 31(1). 366.5. In case a person has been tendered the compensation as provided under Section 31(1) of the 1894 Act, it is not open to him to claim that acquisition has lapsed under Section 24(2) due to non-payment or non-deposit of compensation in court. The obligation to pay is complete by tendering the amount under Section 31(1). The landowners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the 2013 Act. 366.6. The proviso to Section 24(2) of the 2013 Act is to be treated as part of Section 24(2), not part of Section 24(1)(b). 366.7. The mode of taking possession under the 1894 Act and as contemplated under Section 24(2) is by drawing of inquest report/memorandum. Once award has been passed on taking possession under Section 16 of the 1894 Act, the land vests in State there is no divesting provided under Section 24(2) of the 2013 Act, as once possession has been taken there is no lapse under Section 24(2). 366.8. The provisions of Section 24(2) providing for a deemed lapse of proceedings are applicable in case authorities have failed due to their inaction to take possession and pay compensation for five years or more before the 2013 Act came into force, in a proceeding for land acquisition pending with the authority concerned as on 1-1-2014. The period of subsistence of interim orders passed by court has to be excluded in the computation of five years. 366.9. Section 24(2) of the 2013 Act does not give rise to new cause of action to question the legality of concluded proceedings of land acquisition. Section 24 applies to a proceeding pending on the date of enforcement of the 2013 Act i.e. 1-1-2014. It does not revive stale and time-barred claims and does not reopen concluded proceedings nor allow landowners to question the legality of mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to invalidate acquisition. (emphasis by Court) 23. In view of what has been said above, no good ground made out to interfere with the order impugned. 24. This petition fails and is dismissed.