C.M.W.P. Nos. 52178, 52180, 54664 and 57601 of 2011. Case: Khemchand and Others Vs State of U.P. and Others. High Court of Allahabad (India)
| Case Number | C.M.W.P. Nos. 52178, 52180, 54664 and 57601 of 2011 |
| Counsel | For Appellant: Pankaj Dubey, Adv. and For Respondents: C.S.C. and Ramendra Pratap Singh, Adv. |
| Judges | Ashok Bhushan and Mahesh Chandra Tripathi, JJ. |
| Issue | Constitution of India - Articls 136, 226; Land Acquisition Act, 1894 - Sections 17, 17(1), 17(2), 17(4), 18, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 4(1), 41, 5A, 6, 9 |
| Citation | 2014 (2) ADJ 30, 2014 (3) ALJ 609, 2014 (103) ALR 4, 2014 122 RD 753 |
| Judgement Date | January 20, 2014 |
| Court | High Court of Allahabad (India) |
Judgment:
Ashok Bhushan and Mahesh Chandra Tripathi, JJ.
1. These four writ petitions have been filed challenging the acquisition of agricultural plots of petitioners situate in village Biraundi Chakrasenpur, district Gautam Budh Nagar. A counter-affidavit has been filed on behalf of respondent No. 3 in Writ Petition No. 52178 of 2011. All the writ petitions raise same questions of fact and law, hence they have been heard together and are being decided with the consent of parties.
2. For deciding all the writ petitions, it shall be sufficient to refer to the pleadings in Writ Petition No. 52178 of 2011.
3. An order was passed by Hon'ble the Chief Justice on 14th September, 2011 for listing Writ Petition No. 52178 of 2011 alongwith Writ Petition No. 37443 of 2011, Gajraj and others v. State of U.P. and others.
4. Brief facts giving rise to Writ Petition No. 52178 of 2011 are; the petitioners claim to be bhumidhar of plots situate in village Biraundi Chakrasenpur, Pargana Dadri, Tahsil Sadar, District Gautam Budh Nagar. A notification dated 18th December, 2001 under section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) was issued proposing to acquire 46.2933 hectares of land for the planned industrial development in district Gautam Budh Nagar through Greater N.O.I.D.A. Sections 17(1) and 17(4) of the Act were also invoked. The notification under section 4 of the Act stated that the land is urgently required for planned industrial development and it is necessary to eliminate the delay likely to be caused by an inquiry under section 5A of the Act. The declaration under section 6 of the Act dated 30th March, 2002 was issued directing the Collector to take possession on expiration of 15 days from the date of notification under sub-section (1) of section 9 of the Act. The State claims to have taken possession on 27th June, 2002. The award was also pronounced on 21st March, 2005. The respondent No. 3, after taking possession of the land, has made allotment of land to various developers and builders in the year 2006/2008. Two of such allotment letters and the lease deeds dated 1st December, 2006 and 12th January, 2007 have been filed alongwith the writ petition. The petitioners have also received compensation in accordance with the Uttar Pradesh Land Acquisition (Determination of Compensation and Declaration of Award by Agreement) Rules, 1997. The petitioners after coming to know that the land which was acquired for the purposes of planned industrial development have been allotted to private builders and colonisers, have filed this writ petition in this Court on 7th September, 2011 praying for following relief:-
(i) To issue a writ, order or direction in the nature of certiorari, calling the records and quashing the impugned notification No. 4515/77-4-2001-87Bha.-99 dated 18.12.2001 issued under section 4 of Land Acquisition Act and impugned notification No. 768/77-4-2002-87Bha-99 dated 30.3.2002 issued under section 6 of Land Acquisition Act in respect of Plot Nos. 54 area 0.1900 Hect., 66 area 0.4810 Hect. 67Kha area 0.1390 Hect., 71Kha area 0.2700 Hect., 89Kha area 0.2700 Hect., 106 area 0.3030 Hect., 107 area 0.2380 Hect. and 128 area 0.6800 Hect. of the Revenue Village Biraundi Chakrasenpur, Pargana Dadri, Tehsil Sadar, District Gautam Budh Nagar. (Annexure Nos. 1 and 2 to the writ petition).
(ii) To issue writ, order or direction in the nature of mandamus commanding the respondents not to give effect to the impugned notification dated 18.12.2001 under section 4 and the impugned notification dated 30.3.2002 under section 6 of the Act and not to dispossess and not to interfere into the peaceful possession of the petitioners over the Plot Nos. 54 area 0.1900 Hect., 66 area 0.4810 Hect. 67Kha area 0.1390 Hect., 71Kha area 0.2700 Hect., 89Kha area 0.2700 Hect., 106 area 0.3030 Hect., 107 area 0.2380 Hect. and 128 area 0.6800 Hect. of the Revenue Village Biraundi Chakrasenpur, Pargana Dadri, Tehsil Sadar, District Gautam Budh Nagar.
5. The writ petition was directed to be listed alongwith Writ Petition No. 37443 of 2011 by Hon'ble the Chief Justice on 14th September, 2011. The writ petition was also listed before the Full Bench hearing Writ Petition No. 37443 of 2011. By an order dated 9th May, 2013, the Full Bench ordered that Writ Petition No. 37443 of 2011 having been decided on 21st October, 2011, this writ petition be listed before the regular Bench hearing such matters.
6. A counter-affidavit has been filed by the Greater N.O.I.D.A. pleading that possession of 42.8087 hectares of land was taken on 27th June, 2002 after the declaration under section 6 of the Act was issued. Each of the petitioners accepted the compensation and the award was also pronounced on 21st March, 2005. It has further been stated that after taking possession of the land, development work was carried out and area was demarcated as Sectors Omicron 3, Pi, Recreational Green, Amusement Park. The Greater N.O.I.D.A. has constructed roads, laid down sewer lines, electric transmission lines, developed green belts and carved out plots, flats and group housing work. It has been stated that an area of 37490 square metres has been allotted between the year 2003 to 2008. It has also been stated that developed residential plot equivalent to 6% of the acquired land subject to a minimum of 120 square metres and maximum of 2500 square metres has been given to each land owner. The name of Greater N.O.I.D.A. has been mutated in the revenue entries. It was further pleaded that writ petition is a belated petition which deserves to be dismissed.
7. We have heard Sri Pankaj Dubey, learned Counsel for the petitioners, Sri Ramendra Pratap Singh appearing for the Greater N.O.I.D.A. and Sri Ram Krishna, learned Chief Standing Counsel for the State.
8. Learned Counsel for the petitioners, challenging the land acquisition proceedings, has submitted that there was no such urgency in the matter so as to dispense with the inquiry under section 5A of the Act. It is submitted that without application or mind and without there being any sufficient material, the provisions of sections 17(1) and 17(4) of the Act have been invoked which vitiates the entire acquisition. An opportunity to the land holders to file objection under section 5A of the Act was necessary and denying such right to the petitioners vitiates the entire process of acquisition. It is further submitted that the land although has been acquired for public purpose i.e., carrying out the planned industrial development but actually the land, after taking it from the farmers, has been allotted to the colonisers and private builders on huge premium. The acquisition has been made in colourable exercise of power by the State Government. Reliance has been placed by the learned Counsel for the petitioners on the Full Bench judgment of this Court in which one of us (Justice Ashok Bhushan) was also a member in Gajraj and others v. State of U.P. and others 2012 (11) ADJ 1. It is submitted that although the notifications, which have been challenged in the present writ petition, were not under challenge before the Full Bench in any of the writ petitions but the land acquisition proceedings pertaining to village Biraundi Chakrasenpur was very much there before the Full Bench and the notification under section 4 of the Act dated 28th November, 2002 and the declaration under section 6 of the Act dated 29th January, 2003 relating to village Biraundi Chakrasenpur was under challenge before the Full Bench and the writ petitions relating to village Biraundi Chakrasenpur were decided by directing grant of additional compensation of 64.70% and for allotment of abadi plots, hence the petitioners are entitled for the same relief. It is further submitted that possession of the plots was not taken by the respondents in accordance with law and only symbolic possession was taken.
9. Learned Counsel for the respondents, refuting the submissions of learned Counsel for the petitioners, has submitted that writ petitions deserve to be dismissed on the ground of laches since the declaration was issued in March, 2002 and award was pronounced in March, 2005 whereas the writ petitions have been filed in the year 2011 with no satisfactory explanation for delay, hence the writ petitions be thrown out on the ground of laches alone. It is further submitted that there was urgency in the matter since planned industrial development was to be carried out and there was no error in invocation of sections 17(1) and 17(4) of the Act. It is further submitted that possession was taken of large track of land by executing the possession memo in accordance with law. The petitioners have accepted compensation, hence they should not be allowed to challenge the acquisition. It is also stated that Greater N.O.I.D.A., after obtaining possession of the land in the year 2002 itself has carried out several development works including laying of sewer line, electric transmission lines and other amenities. It is further submitted that allotment of plots under various schemes were made between the year 2003 to 2008 and third party rights have been created and at this stage the petitioners' challenge cannot be entertained.
10. Learned Counsel for the parties have relied on several judgments of the Apex Court as well as this Court in support of their submissions which shall be considered while considering the submissions in detail.
11. We have considered the submissions of learned Counsel for the parties and perused the record.
12. The first issue to be considered is as to whether the writ petitions are liable to be thrown out on the ground of laches without entering into the merit of challenge.
13. There is no dispute that after issuing declaration under section 6 of the Act dated 30th March, 2002, the award was also pronounced in the year 2005, the petitioners accepted the compensation and did not challenge the acquisition at the...
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