Research › Search › Judgment

Allahabad High Court · body

2023 DIGILAW 329 (ALL)

Awadhesh Kumar Sharma v. State of U. P.

2023-02-01

PRAKASH PADIA, RAJESH BINDAL

body2023
ORDER : PRAKASH PADIA, J. Order on C.M. Review Application No.40 of 2019 1. The present review application has been filed with a prayer to review/recall the order dated 5.11.2019, by restoring the writ petition to its original number, with a further prayer to allow the writ petition by granting relief prayed for in the writ petition or with any other relief, which this Court deem fit and proper in the interest of the justice. 2. The facts of the case are that the petitioner in the writ petition, claimed that he is owner of plot no. 38/302, area 2300 square meter in village Daulatpur, Tehsil Firozabad, District Firozabad. The said plot was purchased by the petitioner by a registered sale deed in the year 2010. It is further stated in the writ petition that 101.01 acre of land of same village, surrounding the plot of the petitioner was acquired by the U.P. State Industrial Development Corporation Limited (hereinafter referred to ‘UPSIDC’). Out of the aforesaid area, 95.60 acre land was entered in name of UPSIDC and remaining 06.41 acre was recorded in name of Collector, Firozabad. The said acquisition was made in the year 1988. 3. It is further stated in the writ petition that the land purchased by the petitioner was not acquired, whereas the surrounding plots were acquired. Thus, the petitioner had no ingress and egress to his plot. 4. The petitioner applied for exchange of his land with other land as contemplated under section 161 of U.P.Z.A. & L.R. Act. The said application was not decided, as such, the petitioner filed Writ Petition No.43249 of 2013, praying for a direction to the State Authority to decide the application with regard to exchange of his plot. The said writ petition was disposed of with a direction to the authorities to consider the claim of the petitioner and pass appropriate order within the time bound period. The application of the petitioner for exchange was rejected by the Authority concerned by an order dated 23.9.2013. The appeal filed by the petitioner challenging the order was also rejected by the Commissioner, Agra Division, Agra. The said order was challenged by the petitioner by filing a revision before the Board of Revenue. The revision of the petitioner was allowed ex-parte. The appeal filed by the petitioner challenging the order was also rejected by the Commissioner, Agra Division, Agra. The said order was challenged by the petitioner by filing a revision before the Board of Revenue. The revision of the petitioner was allowed ex-parte. Thereafter, the State Authority filed a review application before the Board of Revenue and the Board of Revenue stayed its earlier order. The petitioner filed Writ Petition No. 111 of 2017 for a direction to the Board of Revenue to decide the review application filed by the State Authority. Ultimately, the review application of the State Authority was allowed and the revision filed by the petitioner was dismissed by order dated 19.1.2018. The order dated 19.1.2018 passed by the Board of Revenue was subject matter of challenge by the petitioner in Writ Petition No.2976 of 2018. The said writ petition was also dismissed on 19.3.2018. 5. The petitioner in the present writ petition has stated that the land of the petitioner is surrounded by the land acquired by the State Government. Thus, there is no ingress and egress to the plot of the petitioner. It is further stated in the writ petition that the land of the petitioner is within the boundary wall of the Government Medical College being constructed over the acquired land. 6. This Court by an order dated 5.11.2019 dismissed the writ petition on the ground that the State Government had denied its possession over the land of the petitioner and has also denied to be interested in acquiring the land of the petitioner. So far as ingress and egress to the plot of the petitioner is concerned, this Court kept it open to the petitioner to avail the remedy under Common Law. 7. The petitioner has argued that the statement of Additional Advocate General regarding the possession over the land in dispute is contrary to record. 8. Elaborating the said argument, the learned counsel for the petitioner has relied upon the document, i.e. counter affidavit filed by Sri Kamal Kumar, Assistant Resident Engineer, Mainpurl, U.P. Rajkiya Nirman Nigam Limited, Mainpuri and the progress report submitted by the Nirman Nigam pointing out that the plot of the petitioner is within the boundary wall of the Government Medical College. 9. 9. It is further argued that the Board of Revenue in its order dated 19.1.2018 has further recorded a finding that the land of the petitioner is situated in middle of the acquired land. It is further argued that the Board of Revenue has recorded a finding that the disputed land is situated in middle of the land allotted for construction of the Government Medical College. 10. Based on the aforesaid two documents, it is argued that the findings recorded in the order dated 5.11.2019 are contrary to record, as such, the judgment is worthy to be reviewed. 11. After hearing the counsel for the petitioner it appears that the findings of the Board of Revenue that the land of the petitioner is situated in middle of the land acquired by the State Government and subsequently, allotted for construction of the Government Medical College has not been considered by this Court, while passing the order dated 5.11.2019, as such, the review application is worthy to be allowed and is hereby allowed and the order dated 5.11.2019 is recalled and writ petition is restored. Order on the Writ Petition 1. After recalling the order dated 5.11.2019, a fresh opportunity of hearing has been provided to the counsel for the petitioner and writ petition is being decided with the consent of counsel for the parties. It is argued by the counsel for the petitioner that since the plot of the petitioner is situated in middle of the land acquired by the State Government and allotted for construction of Government Medical College, the petitioner is being deprived of for using his land, as there is no ingress and egress for the land of the petitioner. It is further argued that the right to property has guaranteed under Article 300A of the Constitution of India is being violated by the State Authority. It is further argued that the State Government must acquire the land and pay the compensation to the petitioner in accordance with the provisions contained in the new Act of 2013. 2. The facts as stated in the writ petition are that the petitioner is Bhumidhar of plot no. 38 of 302, situated in Village Daulatpur, Tehsil & District Firozabad, measuring 0.230 Hectare and his name is duly recorded in the revenue record. 2. The facts as stated in the writ petition are that the petitioner is Bhumidhar of plot no. 38 of 302, situated in Village Daulatpur, Tehsil & District Firozabad, measuring 0.230 Hectare and his name is duly recorded in the revenue record. Copy of the sale deed executed in favour of the petitioner on 16.8.2010 had been annexed along with the supplementary counter affidavit filed on behalf of the respondent no. 1. The said sale deed contains the fact that the sale consideration of Rs.4,50,000/- was paid by the petitioner and for the purposes of payment of stamp duty and registration fee the value of the property was made at Rs.4,55,000/-. The said valuation for the purposes of the payment of stamp duty was made on the basis of the circle rate fixed by the Collector in its list effective from 1.8.2010. The stamp duty of Rs.31,850/was paid by the petitioner. 3. On the basis of the aforesaid sale deed, the name of the petitioner was recorded in the revenue record as Bhumidhar. 4. The case of the petitioner is that the land so purchased by the petitioner was surrounded by acquired land. Thus, the petitioner has no way to approach his land and it become impossible for the petitioner to enter in his land accordingly. The petitioner moved an application for exchange of his land under section 161 of U.P.Z.A. & L.R. Act which is pending before the Competent Authority, as such, the petitioner filed writ petition no. 43249 of 2013, praying for a direction to decide the application of the petitioner for exchange of his land no. 38/302, area 0.230 Hectare with some other land. The aforesaid writ petition was disposed off by this Court, with a direction to the Competent Authority to examine the request of the petitioner for exchange of his land within a period of six months. 5. In compliance of the aforesaid order dated 7.8.2013 passed by this Court in writ petition no. 43249 of 2013, the Assistant Collector (1st Class)/Deputy Collector, Sadar, Firozabad passed an order dated 23.9.2013, rejecting the application of the petitioner for exchange of his land. 6. Being aggrieved with the aforesaid order dated 23.9.2013, the petitioner preferred Appeal No. 47 of 2012-13 under section 331 of the U.P.Z.A. & L.R. Act before the Commissioner, Agra Division, Agra. 43249 of 2013, the Assistant Collector (1st Class)/Deputy Collector, Sadar, Firozabad passed an order dated 23.9.2013, rejecting the application of the petitioner for exchange of his land. 6. Being aggrieved with the aforesaid order dated 23.9.2013, the petitioner preferred Appeal No. 47 of 2012-13 under section 331 of the U.P.Z.A. & L.R. Act before the Commissioner, Agra Division, Agra. The aforesaid appeal of the petitioner was also rejected by an order dated 30.1.2014 passed by the Additional Commissioner (Judicial), Firozabad. 7. Being aggrieved with the aforesaid order dated 30.1.2014, the petitioner filed Revision No. 26 of 2014 before the Board of Revenue. The Judicial Member of Board of Revenue by ex-parte order dated 27.5.2017 allowed the revision filed by the petitioner and set aside the order dated 23.9.2013 passed by the Deputy Collector and the order dated 30.1.2014 passed by the Additional Commissioner. The Board of Revenue further passed an order for exchange of land of the petitioner with gata no. 53 with similar area. The State Government through Collector, Firozabad filed review application in revision no. 26 of 2014 before the Board of Revenue. The Board of Revenue by its order dated 29.3.2016 stayed the effect and operation of the order dated 27.5.2015 passed in revision no. 26 of 2014. The petitioner thereafter filed his objection to review application and the matter remained pending before the Board of Revenue. 8. The petitioner thereafter filed Writ-B No.111 of 2017 (Awadesh Kumar Sharma Vs. State of U.P. & others), challenging the order dated 29.3.2016 passed by the Board of Revenue in review application. This Court disposed off the writ petition with a direction to the Board of Revenue to decide the review application within a period of six weeks from the date of production of certified copy of the order before the Board of Revenue by an order dated 4.1.2017. 9. Thereafter the Petitioner filed Writ-B No. 20986 of 2017 (Awadesh Kumar Sharma vs, State of U.P. & others), challenging the communication of Registrar Board of Revenue, communicating the order of Chairman Board of Revenue, Lucknow dated 2.2.2017, whereby the review application filed by the State in Revision No. 26 of 2014 was directed to be heard by Dr. Lalit Verma, Member Judicial at Lucknow. Certain allegation of malafides were levelled against Dr. Lalit Verma, Judicial Member of Board of Revenue. 10. Lalit Verma, Member Judicial at Lucknow. Certain allegation of malafides were levelled against Dr. Lalit Verma, Judicial Member of Board of Revenue. 10. This Court, by an order dated 26.5.2017 disposed off the said writ petition with following order: “Having due regard to the facts and circumstances of the case and without entering into the rival contentions, allegations and counter allegations, it is provided that the record of the case along with the note of the sixth respondent shall be placed before the Chairman Board of Revenue, Lucknow, who shall himself hear the review petition sitting singly or in Division Bench, after putting notice to the parties. Learned counsel for the petitioner undertakes that the petitioner shall cooperate with the proceedings without seeking unnecessary adjournments. With the aforementioned observations/directions, the writ petition is finally disposed of.” 11. Thereafter another Misc. Single No. 22033 of 2017 (petition under 227 of the Constitution of India) was filed, seeking an order or direction directing the Chairman, Board of Revenue, Lucknow to transfer the proceedings of Revision No. 26 of 2014 from Lucknow to Allahabad and prohibiting the Chairman Board of Revenue, Lucknow from hearing the matter. The aforesaid petition was finally dismissed by this Court with the following direction:- "In view of the above, this writ petition is dismissed. The Chairman, Board of Revenue, Lucknow shall decide the review application in terms of the Judgment passed by this Court at Allahabad.” Copy of the order in this regard shall be sent to the Chairman, Board of Revenue, Lucknow. At this stage, Shri Nagar submits that it may be left open for the petitioner to seek clarification from this Court at Allahabad, which has decided earlier writ petition. If such application is permissible and maintainable, no direction is required from this Court.” 12. A perusal of the order dated 19.1.2018 passed by the Board of Revenue, Lucknow also reveals that the direction was issued by the Board of Revenue, Lucknow to the District Magistrate, Firozabad and Director Land Acquisition, U.P. Lucknow to conduct and enquiry as to how, and in what circumstance the land of plot no. 38/302 was not acquired. Though it is surrounded by the acquired land. 13. The petitioner by filing writ petition no. 2976 of 2018, challenged the order dated 19.1.2018. The said writ petition was also dismissed by this Court by an order dated 19.3.2018. 14. 38/302 was not acquired. Though it is surrounded by the acquired land. 13. The petitioner by filing writ petition no. 2976 of 2018, challenged the order dated 19.1.2018. The said writ petition was also dismissed by this Court by an order dated 19.3.2018. 14. The petitioner has filed the present writ petition with the following prayer: (i) That by a suitable order or direction issued in the nature of mandamus, the Hon’ble Court be pleased to restrain the respondent to encroach upon petitioner’s Plot Nos. 38/302 and 53, situate in Village - Daulatpur, District - Firozabad without acquiring the land of the petitioner and without paying compensation to him. (ii) That by a suitable writ, order or direction issued in the nature of mandamus, the Hon’ble Court be pleased to direct the respondents to pay actual value of the land to the petitioner, according to new land acquisition policy along with interest and damages from 01.03.2015. (iii) That by a suitable writ, order or direction issued in the nature of mandamus, the Hon’ble Court be pleased to direct the respondents to return the land of the petitioner after removing the constructions raised thereon, within the time specified by the Hon’ble Court. (iv) Costs of the Writ Petition be awarded to the petitioner, as against the respondents; (v) Any other suitable order or direction which the Hon'ble Court deems fit and proper in the ends of justice and in the circumstances of the case may kindly be issued in the matter in favour of the petitioner and against the respondents in addition to or substitution for the reliefs claimed.” 15. Initially the writ petition was filed only with the prayer that the respondents be restrained from encroaching the plot no. 38/302 and 53 in Village Daulatpur, District Firozabad without acquiring the land of the petitioner and without paying the compensation to him. 16. Subsequently by amendment, a prayer for payment of compensation of actual value to the petitioner according to the new land acquisition Policy along with interest and damages as well as with a prayer for return of the land to the petitioner after removing the construction had been made. 17. It is admitted that a notification under section 4 with regard to the acquisition of surrounding the land measuring 101.01 acre of land was issued. 17. It is admitted that a notification under section 4 with regard to the acquisition of surrounding the land measuring 101.01 acre of land was issued. Out of the aforesaid 101.01 acre land, 95.60 acre of the land was recorded in name of U.P.S.I.D.C. and remaining 06.41 acre was recorded in name of the Collector, Firozabad. 18. The construction of Government Medical College over the land recorded in the name of the Collector, Firozabad, started in the year 2016. There is no document on record to establish that the land of the petitioner had been encroached by raising construction of any building of Medical College over the land of the petitioner. In pursuance of the interim order passed by this Court, an effort was made by the District Magistrate, Firozabad and its Subordinate Officer to settle the dispute with the petitioner by taking the land with the consent of the petitioner. The meeting between the petitioner and the State Authorities were held and the State Authorities offered a sum of Rs.1,65,60,000/-to the petitioner as sale consideration for the land of the petitioner. 19. The report of District Magistrate dated 15.5.2019 has been filed as Annexure 6 to the Supplementary Counter Affidavit, which make it clear that the compensation/sale consideration was offered to the petitioner as per new Act of 2015, treating the land of the petitioner as agricultural land, as the land is till date recorded in the revenue record as agricultural land, but the petitioner claimed that he should be paid compensation at the rate fixed for super commercial area. 20. After failure of negotiation/settlement carried on in pursuance of the order of this Court, the State Authorities decided not to purchase/acquire the land of the petitioner. 21. None of the report filed by the petitioner or the respondents make it clear that the State Authorities or the U.P. Rajkiya Nirman Nigam has raised any construction over the land of the petitioner. The map annexed along with the supplementary counter affidavit make it clear that the land of the petitioner is still vacant. 22. The petitioner has purchased the land by registered sale deed dated 16.8.2010 by paying sale consideration of Rs.4,50,000/and has valued the land at Rs.4,55,000/-for purposes of the stamp duty. The petitioner has further make payment of Rs.31,850/-as stamp duty. 22. The petitioner has purchased the land by registered sale deed dated 16.8.2010 by paying sale consideration of Rs.4,50,000/and has valued the land at Rs.4,55,000/-for purposes of the stamp duty. The petitioner has further make payment of Rs.31,850/-as stamp duty. At the time of purchasing the land, the petitioner was well aware that the land is surrounded with the acquired land and there is no ingress and egress over the land. All his efforts made for exchange of the land had failed, as he was not entitled for exchange of the land as per the provisions contained under Act and Rules framed thereunder. 23. The petitioner has taken a chance having full knowledge that the purchased land is surrounded by acquired land. The State Authorities have declined to take the land of the petitioner, as it is not useful for them and they have also not raised any construction over the land in dispute. 24. The petitioner is claiming that his land is surrounded by acquired land and it is not useful for him. Knowing all facts and topography of the land, the petitioner has purchased the land at Rs.4,50,000/- and paid stamp duty of Rs.31,850/-. The petitioner has taken risk and has made investment of Rs.4,81,850/-. The case of the petitioner is that the land is not useful for him as there is no ingress and egress. The State Authorities cannot be directed to provide ingress and egress to the petitioner over the land acquired by the State Government in the year 1988. However, in the interest of justice, the petitioner may be compensated by awarding amount of investment along with interest @ 9% as contemplated under section 73 of the Act of 2013. 25. In view of the facts stated above, the writ petition is finally disposed off with a direction to the respondent no. 1 to pay consideration of Rs.4,50,000/+ stamp duty of Rs.31,850/-along with interest from the date of sale deed, i.e., on 16.8.2010 till the date the payment is made and the petitioner is directed to execute sale deed on receipt of aforesaid amount in favour of the respondent no.1.