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2022 DIGILAW 744 (ALL)

Heera Singh v. State of U. P.

2022-05-11

J.J.MUNIR, RAJESH BINDAL

body2022
ORDER : 1. Heard learned counsel for parties. 2. It appears that the petitioner has brought this petition, seeking to redeem his land bearing Khasra No. 375, admeasuring 3240/2 square meters, situate at Village Dabra, Pargana and Tehsil Dadri, District Gautam Buddh Nagar, which has been acquired by the State under the Land Acquisition Act, 1894 (for short 'the Act of 1894') for the purpose of planned industrial development by the Greater New Okhla Industrial Development Authority (hereinafter referred to as 'Greater NOIDA'). The aforesaid land shall hereinafter referred to as 'the land in dispute'. 3. It appears that the land in dispute was acquired through a notification dated October 31, 2005 under Section 4/17 of the Act of 1894 followed by a declaration dated September 1, 2006 under Section 6/17 of the Act. A perusal of the khatauni for the years 1409-1414, that correspond to the calendar years 2001-2006, shows that in compliance with the order of the Additional District Magistrate (Land Acquisition) Greater NOIDA, the name of the ousted land holder, Heera Singh, the petitioner has been mutated out and that of Greater NOIDA recorded. Apparently, the possession of the land in dispute has been taken and it is acquired land of the public authority. The petitioner, somehow, has continued in possession of the acquired land as a downright encroacher and some dilapidated structure is standing on a part of the land. For reasons best known to the Authorities of the Greater NOIDA, a report at the instance of the petitioner has been put in by the Greater NOIDA functionaries that a 24-meter wide road for the industrial development of Tech Zone-2 be shifted away from Plot No. 6365, where it is planned. The reason assigned in the report dated July 6, 2016 is that a part of the said land falls in the green belt and on some part of it, two rooms and a verandah belonging to the land holder are in existence. Besides those structures, there are some trees and the land holder has not taken compensation for the land. 4. Learned counsel for the petitioner virtually wants this Court to enforce the internal report dated July 6, 2016 submitted by some nondescript functionaries of the Greater NOIDA, so that he may continue in his illegal occupation of the acquired land of the said Authority. 4. Learned counsel for the petitioner virtually wants this Court to enforce the internal report dated July 6, 2016 submitted by some nondescript functionaries of the Greater NOIDA, so that he may continue in his illegal occupation of the acquired land of the said Authority. In the opinion of this Court, the petitioner cannot rid himself of a concluded acquisition by acts such as continued illegal occupation of the acquired land, which is downright encroachment of public land or by refraining from taking his due compensation pursuant to the award made for the acquisition. The land in dispute stands vested in the Greater NOIDA, free from all encumbrance. The first relief claimed by the petitioner is, therefore, clearly without merit. 5. The other part of the relief seeks a direction to the respondents to return the land in dispute, in view of Section 17 of the Uttar Pradesh Urban Planning and Development Act, 1973 (for short 'the Act of 1973'). Section 17 of the Act of 1973 reads : "17. Compulsory acquisition of land.- (1) If in the opinion of the State Government any land is required for the purpose of development or for any other purpose, under this Act, the State Government may acquire such land under the Provisions of the Land Acquisition Act,1894 : Provided that, any person from whom any land is so acquired may after the expiration of a period of five years room the date of such acquisition apply to the State Government for restoration of that land to him on the ground that the land has not been utilized within the period for the purpose for which it was acquired, and if the State Government is satisfied to that effect, it shall order restoration of the land to him on re-payment of the charges which were incurred in connection with the acquisition together with interest at the rate of twelve per cent per annum and such development charges as if any may have been incurred after acquisition. (2) Where any land has been acquired by the State Government, that Government may, after it has taken possession of the land, transfer the land to the Authority or any local authority for the purpose, for which the land has been acquired on payment by Authority or the local Authority of the compensation awarded under that Act and of the charges incurred by the Government in connection with the acquisition." 6. Looking to the provisions of Section 17 of the Act of 1973, it is apparent that there is no automatic lapse of acquisition under Section 17. The proviso to Section 17(1) of the Act gives a right to an ousted land holder to apply to the State Government for restoration of land, if it remains unutilized by a Development Authority after expiration of a period of five years from the date of acquisition. The right is to apply for restoration and not to any kind of an automatic restoration that the Court may enforce. It is for the Government to decide if a person applies for the enforcement of his rights under Section 17(1), which the Government may grant or refuse. Even if the Government does consider it to be a case for the restoration of land to the original land holder, it is subject to repayment of charges incurred in connection with acquisition, together with interest at the rate of 12% per annum, besides development charges, if any, as have been incurred. The provision, therefore, leaves no manner of doubt that no mandamus can be issued to the Government or the Greater NOIDA by the mere lapse of a time period of five years after acquisition, during which the land has not been utilized. Here, the petitioner has not pleaded a case that they have applied to the State Government to seek restoration of the land in dispute on the ground that it has remained unutilized for a period of five years or more from the date of acquisition. Therefore, no right under the proviso to Section 17(1) of the Act of 1973 is crystallized in the petitioner's favour. That apart, the land here has been earmarked for the construction of a 24-meter wide road, part of a scheme for industrial development known as Tech Zone-2 by the Greater NOIDA. Therefore, no right under the proviso to Section 17(1) of the Act of 1973 is crystallized in the petitioner's favour. That apart, the land here has been earmarked for the construction of a 24-meter wide road, part of a scheme for industrial development known as Tech Zone-2 by the Greater NOIDA. The fact that some officials of the Greater NOIDA have proposed shifting something as important as a 24-meter road to another site, does not mean that the land is unutilized. Big projects take a long time to complete and the fact that a particular part of the project has not been constructed upon until after lapse of five years does not mean that the land is unutilized by the Development Authority, within the meaning of proviso to Section 17(1) of the Act of 1973. It is only that physical development, part of a big planned development, has not actually reached a particular place. 7. Similar question fell for consideration before a Division Bench of this Court in Shyoraj Singh and another v. State of U.P. and others, (2022) 1 All LJ 546, where it was held : "16. As far as the argument raised by learned counsel for the petitioners for invoking Section 17 of the 1973 Act is concerned, the same is to be noticed and rejected. A perusal of Section 17 of the 1973 Act shows that in case the acquired land is not utilized for a period of five years from the date of its acquisition, the land owner can apply to the State for restoration thereof. If the State Government is satisfied that the land had not been utilized for a period of five years for the purpose it was acquired, it can order restoration thereof to the landowners on re-payment of the amount incurred for acquisition along with interest thereon including the development charges, if any. 17. In the case in hand, the definite stand of the State on the record is that immediately after acquisition of the land, which was for development of an industrial estate by the Corporation, the possession thereof was taken and handed over to the Corporation which had even carved out the plots thereon and industrial estate stood developed. Number of industrial units are operating. A perusal of notice dated August 10, 2021, issued to the petitioners for removal of the unauthorized construction also establishes this fact. Number of industrial units are operating. A perusal of notice dated August 10, 2021, issued to the petitioners for removal of the unauthorized construction also establishes this fact. It is mentioned therein that the plot on which the petitioners had raised unauthorized construction is part of plot allotted to Smt. Amarjeet Kaur way back on September 28, 2007, hence the claim that petitioners are entitled to invoke Section 17 of the 1973 Act for restoration of the land to them on the ground that the same has not been utilized is totally misconceived and hence, deserves to be rejected." 8. The handing over of acquired land to the Development Authority for a planned project, as big as a technical zone, including the land in dispute, does not mean that the land is unutilized because of delays in the project implementation or priorities. 9. In this view of the matter, no case for interference is made out. 10. In the result, this petition fails and is dismissed. 11. There shall be no order as to costs.