Allahabad High Court
M/S Parishudh Machine Pvt. Ltd. vs State Of U.P. And Others on 13 April, 2023
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 16.2.2023 Delivered on 13.04.2023 Court No. - 29 Case :- WRIT - C No. - 42680 of 2012 Petitioner :- M/S Parishudh Machine Pvt. Ltd. Respondent :- State of U.P. and Others Counsel for Petitioner :- H.N. Singh,Surendra Kumar Jaiswal,Vineet Kumar Singh Counsel for Respondent :- C.S.C.,Akhilesh Tripathi,K.S.Ojha,Swapnil Kumar Connected Alongwith (1) Case :- WRIT - C No. - 10518 of 2013 Petitioner :- Raghubir Singh Respondent :- State Of U.P. Thru Secy. And Others Counsel for Petitioner :- Akhilesh Tripathi,Shiv Kant Mishra Counsel for Respondent :- C.S.C.,Anand Kumar Singh,G.P.Gupta,Satyam Singh (2) Case :- WRIT - C No. - 18112 of 2020 Petitioner :- M/S Parishudh Machines Pvt Ltd Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Anand Kumar Singh Counsel for Respondent :- C.S.C.,Swapnil Kumar Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Ms. Nand Prabha Shukla,J.
(Delivered by Justice Sunita Agarwal)
1. Heard Sri Anand Kumar Singh learned counsel appearing for the petitioner namely M/S Parishudh Machines Pvt. Ltd. in two connected writ petitions and the review-applicant in Writ-C No. 10518 of 2013 (Raghubir Singh vs. State Of U.P. Thru Secy. And Others), Sri G.P. Gupta learned counsel appearing on behalf of the respondent-UPSIDC in Writ-C No. 10518 of 2013 and Sri Swapnil Kumar learned counsel on behalf of UPSIDC in the other two connected writ petitions. The issues in these three matters are interlinked and, as such, they have been heard together and are being decided by this common judgment.
2. This case has a checkered history. The factual aspects of the matter, therefore, are required to be noted, in brief, to deal with the controversy at hand.
3. The above noted two connected writ petitions and a recall application along with the delay condonation application in Writ-C No. 10518 of 2013 (Raghubir Singh vs. State of U.P. and others) have been filed by M/s Parishudh Machine Pvt. Ltd. (hereinafter referred as "the writ petitioner").
Order on the Civil Misc. (Delay Condonation) Application No. 10 of 2020 in Recall Application filed in Writ-C No. 10518 of 2013:-
The delay in filing the recall application dated 2.11.2020 in Writ-C No. 10518 of 2013 has been explained to the satisfaction of the Court. The delay condonation application is allowed. Delay condoned. The recall application is treated to have been filed within time.
Order on the Recall Application No. 12 of 2020 and Writ Petitions:-
4. The writ petitioner herein, a private limited company, engaged in the business of manufacturing of machines, tools and auto parts etc., is an allottee of Industrial Plot No. A-2, of an area of 36429 sq.m., in the Industrial Area, Gajraula, District J.P. Nagar (U.P.) by virtue of the allotment letter dated 29.3.2006. The copy of the allotment letter is on record as Annexure ''1' to Writ-C No. 42680 of 2012. A lease deed dated 1.8.2006 with respect to the said plot had been executed between U.P. State Industrial Development Corporation (In short as "UPSIDC") and the writ petitioner herein for a period of 90 years, which is appended as Annexure ''2' to the aforesaid writ petition. The possession memo dated 6.9.2006 of the transfer of possession of 36429 sq.m. of Industrial Plot No. A-2, Phase-II, Gajraula, District J.P. Nagar to the allottee is also appended as Annexure ''3' to the aforesaid writ petition, which demonstrates that the possession of the industrial plot in question had been handed over by the UPSIDC to the writ petitioner on the said date. There is no dispute about the payment of premium and lease rent by the writ petitioner/allottee.
5. It appears that after handing over possession of the plot in question to the writ petitioner, some hindrance was created by villagers in the construction work undertaken by the writ petitioner. A Writ No. 38250 of 2007 (M/s Parishudh Machines Private Ltd. vs. State of U.P. and others) was, thus, filed by the writ petitioner herein, which was disposed of by the judgment and order dated 17.8.2007 directing the District Magistrate, J.P. Nagar to look into the matter and issue appropriate directions to the concerned authority including the local police to make adequate arrangements to enable the writ petitioner to get possession of the industrial plot allotted to it by UPSIDC on 29.3.2006. Subsequent thereto, the construction of an industrial unit on the industrial plot in question had been completed and it is categorically stated in the writ petition that the industry is functional and it is registered with the requisite Revenue/Tax Department. The papers pertaining to registration and allotment of TIN number by the concerned departments and the NOC granted by the Pollution Control Board have been appended with the writ petition, to substantiate the said fact.
A copy of the letter dated 27.10.2007 written by the Regional Manager, UPSIDC to the Special Land Acquisition Officer, J.P. Nagar appended as Annexure ''7' to the aforesaid writ petition indicates that the Plot No. A-2 in the Industrial area Phase-2 allotted to the writ petitioner herein comprised of Khasra Nos. 14, 15, 16, 17, 18, 19, 20, 21, 22, 116, 117, 118, 119, 120, 121 and 122 of Village Fazilpur Gossain, Pargana Hasanpur, District Moradabad [new District Jyotiba Phule Nagar (hereinafter referred as "J.P. Nagar")].
6. It may be noted that the aforesaid plots were acquired by acquisition notifications dated 17.8.1985 under Section 4(1) of the Land Acquisition Act, 1894 and the notification dated 30.3.1988 under Section 6(1) read with Section 17(1) of the Land Acquisition Act, 1894, after completing enquiry under Section 5A of the Land Acquisition Act, 1894. The said fact is demonstrated from the copy of the notifications appended with the abovenoted writ petition filed by the writ petitioner herein and Writ Petition No. 10518 of 2013 filed by the contesting respondent herein namely Raghubir Singh (hereinafter referred as "contesting respondent"). The possession of the entire acquired land after notice under Section 9 of the Land Acquisition Act comprising of an area of 151.32 acres of Village Naimpur Khadar and Village Fazilpur Gosai had been taken by drawing the possession memo dated 23.3.1990 and had been handed over to UPSIDC, out of the total acquired land, the land of Village Fazilpur Gossain comprised of an area of 133.76 acres. The copy of the possession memo is appended as Annexures ''11' and ''12' of the writ petition. The award under Section 11-A of the entire land of two villages comprising of 151.32 acres had been declared on 31.10.2002. It seems that some of the tenure holders had challenged the acquisition notifications by filing writ petitions in the years 2004, 2005 and 2007.
7. A bunch of writ petitions leading being Writ-C No. 3629 of 2005 (Bhagwan Das vs. State of U.P. and others) were decided on 16.11.2009 holding that since the possession of the acquired land of the petitioners had not been taken, the award having been made in the year 2002, beyond the period of two years from the date of the declaration notification under Section 6 of the Act, 1894, the entire acquisition proceedings stood lapsed being hit by Section 11-A of the Land Acquisition Act, 1894. It was, thus, held that all the proceedings stood lapsed including the award and the writ petitions were, thus, allowed.
8. Another Writ-C No. 42610 of 2007 (Shahid vs. State of U.P. and others) was also disposed of vide judgment and order dated 8.9.2010 in light of the aforesaid decision of the Writ Court dated 16.11.2009. The matter travelled to the Apex Court against the judgment and order dated 8.9.2010 in a Special Leave Petition filed by the UPSIDC. By the judgment and order dated 2.5.2011, the Apex Court had dismissed the Special Leave Petition with the following observations:-
"We have heard Shri Ratnakar Das, learned Senior counsel for the petitioner and perused the record.
Since, the Corporation has not controverted the fact that in the counter affidavit filed in writ petition No- 5341 of 1999, the Special Land Acquisition Officer, Moradabad had categorically averred that possession of the acquired land was not taken or 23-03-1990 and the averments contain in paragraphs 6, 8, 9, 11 and 16 of the writ petition filed by the respondent, there is no escape from the conclusion that possession of the acquired land was not taken on 23-03-1990 and the contrary assertion made in the counter affidavit filed on behalf of the Corporation was not correct.
We are further of the view that the urgency, provision contained in section 17 could not have been invoked for the acquisition of land in the name of planned industrial development of the district. Reference in this connection can usefully be made to the recent judgment in Shri Radhey Shyam (Dead) through L.Rs and other V/s State of U.P. and Ors. (2011) 4 Scale 677.
That apart, learned senior counsel for the petitioner could not offer any tangible explanation for the time gap of almost 2 years and 7 months between section 4 notification and section 6 declaration. He also could not put forward any argument as to why the award was not made for 14 years and 7 months after issue of declaration under section 6 of the Act. This shows that the acquisition of the respondents land by invoking the urgency provisions was nothing but a farce.
The Judgment of this Court in Satendra Prasad Jain V/s State of U.P. (Supra), Awadh Bihari Yadav V/s State of Bihar (1995) 6 SCC 31, Pratap V/s State of Rajasthan (1996) 3 SCC 1, Allahabad Development Authority V/s Nasiruzzaman (1996) 6 SCC 424 and Govt. of A.P. V.s Kollutla Obi Reddy (2005) 6 SCC 493 cannot be relied upon for upholding the acquisition because as per the affidavit of the Special Land Acquisition Officer filed in writ petition no. 5341 of 1999, possession of the acquired land was not taken on 23-3-1990 and admittedly, the award was made after 17 years of issue of notification under section 4 and more than. 14 years after the issue of declaration under Section 6.
The special leave petitions are accordingly dismissed."
A perusal of the above noted observations of the Apex Court indicates that the Special Leave Petition of the UPSIDC was dismissed on three grounds:-
(1) firstly that the possession of the acquired land had not been taken on 23.3.1990, which fact was noted from the statement of the Special Land Acquisition Officer in the counter affidavit filed in a Writ Petition No. 5341 of 1999.
(2) The second ground was that the urgency provisions contained in Section 17 could not have been invoked for the acquisition of land in the name of the planned industrial development of the District in view of the decision of the Apex Court in Shri Radhey Shyam (Dead) through L.R.(s) and other vs. State of U.P. and others1.
(3) And lastly that no tangible explanation could be offered by UPSIDC/State for the time gap of almost 2 years and 7 months between Section 4 notification and Section 6 declaration. No explanation had further been given for delay in making the award for about 14 years and 7 months from the date of declaration under Section 6 of the Act.
9. It was opined by the Apex Court that the acquisition of the respondents land (therein) by invoking the urgency provisions was nothing but a farce. The decisions relied upon by the appellant/UPSIDC to assert that the provisions of Section 11-A of the Land Acquisition Act, 1894 would not be attracted as possession of the acquired land had already been taken on 23.3.1990 by invoking the provisions of Section 17(1) of 1894 Act, had been held to be inapplicable. It seems that after decision of the Apex Court in the aforesaid Special Leave Petition and similar other Special Leave Petitions filed by the UPSIDC challenging the order of this Court in allowing the writ petitions, the writ petitioner herein had also filed a Special Leave to Appeal (Civil) CC 11562 of 2012 against the judgment and order dated 16.11.2009 passed in the Writ Petition No. 3629 of 2005. The said Special Leave Petition had been permitted to be withdrawn with liberty to file an appropriate application before this Court for reconsideration of the order dated 16.11.2009, under challenge.
10. A copy of the information/letter received by the writ petitioner dated 7.8.2012 from the office of the Special Land Acquisition Officer (Joint Organization), Amroha appended as Annexure ''20' to the writ petition contains the information with regard to the disbursement of compensation to the tenure holders for plot nos. 14, 15, 16, 18, 21, 22, 23, 117, 119, 120 and 121 under the award dated 1.12.2003. It is indicated therein that the compensation for Gata nos. 119 and 120 recorded in the name of Khamani son of Sukhkhan was deposited in RD account for disbursement on 1.12.2003. Plot no. 121 was shared by more than one co-sharer, Khamani son of Sukhkhan, father of the contesting respondent Raghubir Singh being one of them compensation for the said plot was also deposited on 01.12.2003. Some of the tenure holders of Gata Nos. 16, 21, 22 and 117, in whose names compensation were deposited in the said account, had also filed reference before the competent Court under Section 18 of the Land Acquisition Act, 1894 which had been decided on 27.5.2009.
It seems that the tenure holders had served a notice dated 22.6.2012 to the UPSIDC through their counsels asking the UPSIDC to ensure removal of possession of the allottees from the acquired lands in view of the decision of this Court dated 16.11.2009, whereby the entire acquisition proceedings had been held to be lapsed for the delay in making of the award.
11. A perusal of the notice appended as Annexure ''21' to the writ petition indicates that the name of the writ petitioner therein had been indicated in the array of the respondents in the notice as respondent no. 11, sent through the counsels. The reference of the persons sending notices through their Advocate Abdul Sattar has been given in the notice itself as "all the tenure holders of Village Fazilpur and Village Tigariya Bhoodh."
12. The cause of action for filing the Writ Petition No. 42680 of 2012, by the writ petitioner, therefore, arose in the month of August, 2012, wherein relief was sought to quash the notice dated 26.5.2012 issued by UPSIDC pursuant to the notice given to it by the tenure holders dated 22.6.2012. The notice dated 26.5.2012 had been issued by UPSIDC intimating the Special Land Acquisition Officer that the acquisition of the concerned industrial area had been quashed by the Apex Court in its orders dated 2.5.2011 and 5.7.2011. The writ petitioner has sought further relief to restrain the respondent UPSIDC and the State from evicting it from the Industrial Plot A-2, Gajraula, industrial area Phase-II, J.P. Nagar. It was further prayed that the benefit of the decisions of the Apex Court in quashing the acquisition proceedings as lapsed under Section 11A along with the award dated 31.10.2002 be directed to be confined to the tenure holders who had filed writ petitions before this Court and not to extend to those who had acquiesced with the acquisition proceedings. For alternative relief of mandamus, it was prayed that direction be issued to the UPSIDC to fully compensate the writ petitioner for the loss being suffered including the premium paid to UPSIDC with the cost of construction of machines, along with interest, in case the eviction of the writ petitioner from the plot in question namely Industrial Plot no. A-2 Gajraula industrial area Phase -2, J.P. Nagar is directed.
During the pendency of the aforesaid writ petition, another Writ Petition No. 18112 of 2020 had been filed by the writ petitioner herein impleading the contesting respondent namely Raghubir Singh son of Khamani resident of Village Faizalpur Gosai, P.O. Gajraula, District J.P. Nagar, U.P., restraining him from claiming any possessory rights on any part of Plot No. 5, Gajraula Industrial Area, Phase-II, Dhanaura Road, Gajraula, District J.P. Nagar.
13. We may note that in Writ Petition No. 42680 of 2012, all the other tenure holders of the acquired plots comprised in Industrial Plot No. A-2 Gajraula Industrial Area Phase-2, J.P. Nagar including the predecessor-in-interest of the contesting respondent namely Khamani son of Sukhkhan have been impleaded but none of them except Raghubir Singh son of Khamani have come forward to contest the instant proceeding. It may further be noted that Raghubir Singh son of Khamani who is impleaded as respondent no. 37 in Writ Petition No. 42680 of 2012 filed by the writ petitioner, had also filed a Writ Petition No. 10518 of 2013 with the reliefs as follows:-
"(a) Issue a writ, order or direction in the nature of certiorari quashing the impugned notification dated 17.08.1985 and 30.03.1988 issued by the Government (Annexure nos. 1 and 2 to the writ petition).
(b) Issue a writ, order or direction in the nature of certiorari quashing the impugned award dated 31.10.2002 passed by the respondent no. 3 (Annexure - 6 to the writ petition).
(c) Issue a writ, order or direction in the nature of Mandamus commanding the respondents to restore back the possession of the plot nos. 119, 120 and 121 measuring area about 0.9270 hectare situate in village Fazilpur Gossain, Tehsil Hasanpur, District Jyotiba Phule Nagar."
The said writ petition was instituted in the month of February, 2013. The contesting respondent stated in the said writ petition that his father Khamani was tenure holder of plot nos. 119, 120 and 121 measuring area 0.9270 hectares situated in Village Fazilpur Gossain, Tehsil Hasanpur, District Jyotiba Phule Nagar and that he was in the possession of the plots in question till the year 2006 but was forcefully and illegally dispossessed in the year 2007. In the entire writ petition, there was no disclosure about the receipt of compensation under the award dated 31.10.2002 issued by the Special Land Acquisition Officer. Only this much was stated that his father namely Khamani had received 80% of compensation and notices were issued to the tenure holders to return 80% of estimated compensation paid to them. His father, however, was unable to return back the compensation paid to him and as such, he was put behind the bar and was released only when he paid back the compensation. It is sought to be stated in the writ petition filed by contesting respondent that the copy of the notice to refund compensation was not with him and as such, it could not be annexed with the writ petition. However, the averments in the writ petition was that full compensation had not been paid by the acquiring body nor it was received by the original tenure holder namely Khamani.
It may further be noted that the allottee of the Industrial Plot No. A-2, comprised of plot nos. 119, 120 and 121 of Village Fazilpur Gossain, Tehsil Hasanpur, District Jyotiba Phule Nagar, which were subject matter of dispute in Writ Petition No. 10518 of 2013 filed by the contesting respondent, had not been impleaded therein. The Writ Petition No. 10518 of 2013 has been allowed vide order dated 9.8.2017 by this Court, holding that the acquisition of the land in relation to the petitioner therein (contesting respondent herein) would be deemed to have lapsed in terms of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (In short as "the Act, 2013") as per the decision of the Apex Court in Delhi Development Authority vs. Sukhbir Singh & others2.
The recall application to recall the judgment and order dated 9.8.2017 with the prayer to implead the recall applicant/writ petitioner herein as party in the said writ petition has been filed in the month of November, 2020.
14. The issue in two writ petitions filed by the allottee of Industrial Plot No. A-2, Gajraula industrial area Phase-2 and the recall application is about the fate of the acquisition proceedings with respect to plot nos. 119, 120 and 121 area 0.9270 hectares situated in Village Fazilpur Gossain, Tehsil Hasanpur, District Jyotiba Phule Nagar, acquisition of which has been held to have been lapsed by this Court in the judgment and order dated 9.8.2017. We are, therefore, required to examine, firstly, the claim of the writ petitioner to seek recall of the judgment and order dated 9.8.2017.
15. At this juncture, it may be noted from the facts reflected from the record of the aforesaid three cases that it is more than evident that the contesting respondent was aware of the factum of allotment of Industrial Plot No. A-2 comprising of his land holdings in favour of the writ petitioner/allottee. For the reasons best known to the contesting respondent, the allottee/writ petitioner had not been impleaded in Writ Petition No. 10518 of 2013, wherein relief was sought by him to quash the acquisition notifications dated 17.8.1985 and 30.3.1988 and restore back the possession of plot nos. 119, 120 and 121 area 0.9270 hectares.
16. We may further note that the averments in the recall application filed by the writ petitioner have not been objected by filing any counter to the same by the contesting respondent namely Raghubir Singh (writ petitioner therein).
17. It is also relevant to note that Raghubir Singh son of Khamani filed a Writ Petition No. 62263 of 2006 earlier with the same relief as sought in Writ Petition No. 10518 of 2013. The said writ petition was dismissed as withdrawn vide judgment and order dated 28.8.2008 on the prayer made by the counsel appearing for the contesting respondent Raghubir Singh with liberty to file a fresh petition with better particulars. The restoration/recall application accompanied with the delay condonation application had been filed by Raghubir Singh to seek recall of the order dated 28.8.2008 but the said application was not pressed and hence it was rejected on 29.4.2011 for want of prosecution. After a period of five years from the date of withdrawal of the earlier writ petition, Writ Petition No. 10518 of 2013 was filed by the contesting respondent during the pendency of the Writ Petition No. 42680 of 2012 filed by the writ petitioner/allottee herein, without impleading the allottee as respondent therein.
The order sheet of Writ Petition No. 42680 of 2012 filed by the allottee indicates that notices were issued to the respondent No. 37 therein namely including father of Raghubir Singh namely Khamani, the original tenure holder, on 4.10.2012 indicating the date fixed as 6.11.2012. No counter affidavit, however, had been filed on behalf of respondent no. 37 until 16.8.2019. The counter affidavit of the contesting respondent Reghuveer Singh filed in Writ Petition No. 42680 of 2012 further indicates that there was no disclosure therein about the date of receipt of the notice of the said writ petition, sent in the name of his father, Khamani son of Sukhkhan impleaded as respondent no. 37.
In the counter affidavit filed on behalf of respondent no. 37 namely the contesting respondent herein Raghubir Singh son of Khamani, it is stated that the original tenure holder had already expired on 19.7.2001 and the answering respondent being the only son ought to have been impleaded in the writ petition as respondent no. 37. It is further stated that his father late Khamani was the original tenure holder of the plots in question and he (Raghubir Singh) remained in the possession of the land in question till September, 2007.
It is also stated therein that in September, 2007, Raghubir Singh son of Khamani was dispossessed from the land in question during the pendency of earlier Writ Petition No. 62263 of 2006 filed by him. The factum of filing of subsequent Writ Petition no. 10518 and 2013 and the judgment and order dated 9.8.2017 allowing the said writ petition has been brought on record by means of the said counter affidavit dated 11th October, 2019. However, no dispute has been raised with regard to the factum of allotment of Industrial plot A-2, Industrial area Gajraula comprising of the plots in dispute, in the name of the writ petitioner herein. Rather in paragraph ''34' of the said counter affidavit, in reply to paragraph nos. ''25' and ''26' of the aforesaid writ petition, it was admitted that the factory of the writ petitioner is situated over the land in question, belonging to Khamani, description of which has been given hereinabove. It is also stated therein that the cause of action for filing the writ petition by contesting respondent arose on 20.9.2007 when the possession of the land in question had been taken by UPSIDC.
18. As a Counter claim, it is stated therein that the contesting respondent is entitled for the relief of mesne profit of the land utilized by the writ petitioner from September, 2007 till its actual physical possession is restored to the contesting respondents and further that the contesting respondent is entitled for restoration of plot nos. 119, 120 and 121 admeasuring 0.9270 hectares and the respondents are required to suitably compensate him for trespassing and taking illegal possession.
19. At this juncture, we may note that there is no denial to the categorical statement in paragraph '24' of the Writ Petition No. 42680 of 2012 wherein the information supplied by the Special Land Acquisition Officer dated 7.8.2012 had been extracted to assert that the compensation of the plots in question namely Plot Nos. 119, 120 and 121 had been deposited in R.D. account on 1.12.2003. The statement in paragraph '24' of the writ petition of the writ petitioner herein and reply thereto in paragraph '33' of the counter affidavit filed by the answering respondent are relevant to be extracted hereunder:-
Writ Petition:-
"24. That on enquiry being made by the petitioner the Special Land Acquisition Officer has issued letter dated 7.8.2012 addressed to the petitioner supplying the information on the proforma chart in respect of compensation received to the owners of plot no. 14, 15, 16, 18, 21, 22, 23, 117, 119, 120 and 121 of village Fazilpur Gosai on which the U.P. State Industrial Development Corporation has allotted plot no.A-2 to the petitioner in Gajraula industrial area Phase-2 and remaining Khasra no. 17, 19, 20, 116, 118 and 122 the total area of which is 1.29 acres belong to gram panchayat and no farmers are involved in respect thereof. In this connection true copy of the information supplied by the Special Land Acquisition Officer dated 7.8.2012 is being filed herewith and is marked as Annexure no. 20 to this writ petition.
*** Counter:-
33. That the contents of paragraph 24 of the writ petition as stated is not admitted, hence denied and in reply thereto it is submitted that the petitioner's factory is situate on the land of the answering respondent."
20. It is, thus, evident that the compensation determined under the award had been deposited in the concerned account for disbursement to the tenure holders. It does not matter as to whether the tenure holder had actually received it or not, as refusal to receive compensation determined under the award by the tenure holder would not entitle him to plead that the acquisition proceedings stood lapsed because of non-making of the award. The statement in the Writ Petition No. 10518 of 2013 by the contesting respondent that he had not been paid any compensation and his land had been forcefully and illegally taken over by the State Authorities in the year 2007, is, thus, of no benefit to the contesting respondent.
21. As noted above, the contesting respondent had filed Writ Petition no. 10518 pf 2013 by concealment of material fact of the pendency of Writ Petition no. 42680 of 2012 filed by the writ petitioner herein wherein his father, the original tenure holder, was impleaded as respondent no. 37 and in whose name notice had been sent by registered post on 4.10.2012.
22. In the counter affidavit filed in Writ Petition No. 42680 of 2012, there is no statement with regard to the service of notice of the said writ petition, issued in the name of the father of the contesting respondent. As noted above, the original tenure holder Khamani son of Sukhkhan died on 19.7.2001, i.e. much before making of the award dated 31.10.2002 and all the proceedings, thereafter, were initiated by the contesting respondent.
23. By concealment of relevant material facts of the allotment of the plots in question in favour of the writ petitioner, the contesting respondent filed a Writ Petition in the month of February, 2013 on the premise that the acquisition notifications with respect to other tenure holders of the land acquired under the acquisition in question had been quashed as having been lapsed under the 1894 Act. We may note that there is no dispute about the fact that even the physical possession of the lands in question, the plots belonging to the contesting respondent had been taken in the year 2007. The first writ petition filed by the contesting respondent herein namely Raghubir Singh in the year 2006 was dismissed as withdrawn on the request made by the counsel on his behalf and liberty was granted as prayed for. However, for a period of five years, no writ petition had been filed by the contesting respondent Raghubir Singh. In the meantime, the rights of the writ petitioner herein namely allottee of UPSIDC had been crystallised over the land in question. The Plot No. A-2, Industrial Area Gajraula, J.P. Nagar allotted to the writ petitioner herein comprised of three disputed plot nos. 114, 120 and 121 (area 0.9270 hectares) belonging to the petitioner, apart from other plots of Village Fazilpur Gosaain, Tehsil Hasanpur, District J.P. Nagar, which were acquired in the year 1985-88.
24. At the cost of repetition, it may be noted, at this juncture, that the contesting respondent put in appearance in the Writ Petition No. 42680 of 2012 filed by the writ petitioner herein only in the year 2019, to bring on record the order dated 9.8.2017 passed in Writ-C No. 10518 of 2013 filed by him. The factum of allotment of the industrial plot in favour of the writ petitioner was also not disclosed by UPSIDC in the counter affidavit dated 7.8.2013 filed in Writ Petition No. 10518 of 2013 by the contesting respondent. The role of UPSIDC in the entire matter is, thus, questionable. The fact remains that the contesting respondent had succeeded in getting the judgment and order dated 9.8.2017 in his favour by concealment of all relevant material facts noted above.
25. The factum of deposit of compensation by the State authorities has been brought before us in the Writ Petition No. 42680 of 2012 which has also been conveniently concealed by the contesting respondent in his writ petition filed in the year 2013. It was projected before the Writ Court by the contesting respondent that the awarded amount under the award dated 31.10.2002 had not been deposited in any Court nor it had been disbursed to the tenure holder/contesting respondent. The Division Bench of this Court in the judgment and order dated 9.8.2017, has held that though the relief prayed therein to grant benefit of the proceedings having been lapsed under Section 11-A of the Act, 1894 Act cannot be granted as admittedly the possession of the land in question had been taken, but since the compensation awarded under the award dated 31.10.2002 had not been deposited in terms of 1894 Act before the concerned Court, the contesting respondent (petitioner therein) had a ground for interference in view of sub-section (2) of Section 24 of 2013 Act. It was, thus, held that since compensation had not been deposited before the Court concerned, the writ petition (of the contesting respondent) deserved to be allowed on the short ground of the proceedings having been lapsed in terms of Section 24(2) of 2013 Act.
26. The learned counsel for the contesting respondent herein relied upon the decisions in Ram Bhajan vs. Chief Revenue Officer/prescribed Authority, Mirzapur3 and Peerappa Hanmantha Harijan and others vs. State of Karnataka and others4 to assert that the allottee was neither a necessary nor proper party in a challenge to the acquisition proceedings. In our considered opinion, the ratio of the said decisions is not applicable in the facts and circumstances of this case, inasmuch as, the judgment and order dated 9.8.2017 passed in favour of the contesting respondent, is a result of fraud committed by him, not only by concealment of correct facts before this Court but in giving incorrect facts relating to deposit of compensation under the award dated 31.10.2002. The UPSIDC and the State respondents who were parties and filed their affidavits were also privy to the misrepresentation on the part of the contesting respondent.
It is well settled that misrepresentation itself amounts to commission of fraud on the Court and suppression of material facts to the core issues is always viewed seriously. Fraud and justice never dwell together.
27. It is stated by the Apex Court in Ram Chandra Singh vs. Savitri Devi and others5 and Ganpatbhai Mahijibhai Solanki vs. State of Gujarat and others6 that if an order is obtained by reason of commission of fraud, the same is rendered a nullity. In a case of nullity, even the principles of natural justice are not required to be complied with for setting aside the same. Once it is held that by reason of commission of a fraud, a decree is rendered to be void rendering all subsequent proceedings taken pursuant thereto also nullity, it would be wholly inequitable to confer a benefit on a party, who is a beneficiary of the fraud. Fraud as is well-known vitiates every Solemn act.
28. Having noted the above that the contesting respondent did not dispute the factum of deposit of compensation on 1.12.2003 with respect to three plot nos. 119, 120, 121 as indicated in the above extracted paragraphs of the writ petition of the writ petitioner/allottee, and made a vague statement re: receipt of compensation by the tenure holder/his father, it is more than evident that the judgment and order dated 9.8.2017 of the Division Bench of this Court in Writ Petition No. 10518 of 2013 filed by the contesting respondent, was an outcome of the concealment of material facts on the part of the contesting respondent (the writ petitioner) therein and as such, is liable to be recalled.
For the above discussion, while allowing the recall application dated 2.11.2020 filed on behalf of the writ petitioner herein, the allottee, namely M/S Parishudh Machine Pvt. Ltd., the judgment and order dated 9.8.2017 allowing the Writ Petition No. 10518 of 2013 is hereby recalled.
The said writ petition is now being decided on the merits of the rival claims of the contesting parties in this judgment itself.
29. As noted above, in the pleadings before us, it has come that the original tenure holder had been acquiesced with the acquisition proceedings by receipt of compensation and the Writ Petition No. 10518 of 2013 by the contesting respondent, his son, was only an afterthought. Moreover, there are material concealment in the writ petition filed by the contesting respondent Raghubir Singh. The factum of allotment of Industrial plot in favour of the writ petitioner in the year 2007 had not been disclosed. The writ petitioner who was the allottee and whose factory is situated on the spot, as admitted to the contesting respondent in his counter affidavit filed in Writ Petition No. 42680 of 2012, had not been impleaded in the writ petition filed by the contesting respondent. It is evident from the record that the acquisition proceedings with respect to three plots namely plot nos. 119, 120, 121 belonging to Khamani son of Sukhkhan father of the contesting respondent, later inherited by him, had been brought to its logical end with the deposit of the awarded money in the concerned account on 1.12.2003. The prayer made in the Writ Petition No. 10518 of 2013 to quash the acquisition proceedings as having been lapsed under Section 11-A of 1894 Act, therefore, cannot be granted.
30. As regards the applicability of Section 24(2) of 2013 Act, the legal position with regard to the applicability of the said provision has been set at rest with the decision of the Apex Court in Indore Development Authority vs. Manoharlal and others7, wherein it has been held that after transfer of possession by preparation of the possession memo, the acquired land vests with the State Government in accordance with the provisions of Section 16 of the Land Acquisition Act, 1894. There is no divesting provided under Section 24(2) of the Act of 2013 as once possession has been taken there is no lapse under Section 24(2). It is held by the Apex Court therein that the mode of taking possession under the Act of 1894 and as contemplated under Section 24(2) is by drawing of inquest report/memorandum/possession memo. Moreover, twin conditions are to be fulfilled to attract the provisions of Section 24(2), i.e. the deemed lapse of land acquisition proceedings under Section 24(2) would take place only where the possession of the acquired land has not been taken nor compensation has been paid. The expression ''paid' in the main part of Section 24(2) of the Act of 2013 has also been explained by saying that it does not include a deposit of compensation in Court. As the consequence of non-deposit is provided in the proviso to Section 24(2) where in case the deposits with respect to the majority of land holdings had not been made, the land owners shall be entitled to compensation in accordance with the provisions of the Act of 2013. It was, thus, held that non-deposit of compensation (in Court) does not result in the lapse of land acquisition proceedings. It is further observed therein that the obligation to pay is complete by tendering the amount under Section 31(1) of the Act, 1894. The land owners 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 Act of 2013.
It is further held that Section 24 applies to a proceeding pending on the date of the enforcement of the Act of 2013, 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.
31. The relevant observations of the Apex Court in paragraph ''366' are extracted hereinunder:-
"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 Act of 2013, there is no lapse of proceedings. Compensation has to be determined under the provisions of Act of 2013.
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 Act of 2013 under the Act of 1894 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 Act of 2013 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 Act of 2013 does not include a deposit of compensation in Court. The consequence of non-deposit is provided in proviso to Section 24(2) in case it has not been deposited with respect to majority of land holdings then all beneficiaries (landowners) as on the date of notification for land acquisition under Section 4 of the Act of 1894 shall be entitled to compensation in accordance with the provisions of the Act of 2013. In case the obligation under Section 31 of the Land Acquisition Act of 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 Act of 2013 has to be paid to the "landowners" as on the date of notification for land acquisition under Section 4 of the Act of 1894 Act.
366.5. In case a person has been tendered the compensation as provided under Section 31(1) of the Act of 1894, 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). Land owners 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 Act of 2013 Act.
366.6. The proviso to Section 24(2) of the Act of 2013 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 Act of 1894 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 Act of 1894, the land vests in State there is no divesting provided under Section 24(2) of the Act of 2013, 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 Act of 2013 came into force, in a proceeding for land acquisition pending with concerned authority 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 Act of 2013 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 Act of 2013, 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."
32. As noted above, the proceeding of acquisition, in the instant case, had been brought to its logical end with the making of an award in the year 2002 and deposit of compensation for the plots in question in the year 2003. Admittedly, the possession of the land acquired by drawing the possession had been taken on 23.3.1990, even the physical possession of the land in question from the contesting respondent) had been taken in the year 2007, the relief prayed for quashing of the notifications dated 17.8.1985 and 30.3.1988 as also the award dated 31.10.2002, on the premise that the acquisition proceedings stood lapsed in view of Section 11-A of 1894 Act, 1894 or Section 24(2) of 2013 Act, cannot be granted. Both the provisions of the Act' 1894 and 2013 Act do not attract in the facts and circumstances of the instant case. The Writ Petition No. 10518 of 2013 is, accordingly, dismissed.
33. As far as the relief claimed by the writ petitioner herein in two Writ Petition Nos. 42680 of 2012 and 18112 of 2020, it may be noted that there is not dispute about the allotment of Industrial plot no. A-2, Industrial area, Phase-2, J.P. Nagar in favour of the writ petitioner and the execution of the lease deed dated 1.8.2006 for 90 years by the UPSIDC. There is also no dispute with regard to the payment of premium in terms of the lease deed. No dispute at all could be raised by any of the respondents including the contesting respondent about the right of the writ petitioner herein having been settled in Industrial plot no. A-2, comprised of the acquired land in Gata Nos. 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 116, 117, 118, 119, 120 and 121 of Village Fazilpur Gossain, Tehsil Hasanpur, District J.P. Nagar, acquisition of which had been brought to its logical end, as noted above.
34. We, therefore, allow the Writ Petition Nos. 42680 of 2012 and 18112 of 2020 holding that there shall be no interference in the lease hold right of the writ petitioner namely M/s. Parishudh Machine Pvt. Ltd. to retain the possession of Plot No.5, Industrial Area Gajraula, Phase-II, Dhanaura Road, Gajraula, District J.P. Nagar, granted by the UPSIDC, the lessor, except in accordance with law.
35. However, before parting with this judgment, it is provided that the dismissal of the Writ Petition No. 10518 of 2013 filed by the contesting respondent Raghubir Singh will not come in his way in seeking disbursement of compensation under the award dated 31.10.2002 which had been deposited on 1.12.2003, by moving an application before the Special Land Acquisition Officer (J.P. Nagar)/concerned officer (Joint Organization), if the awarded amount has not already been paid to the original tenure holder or the answering respondent herein. In case, such an application is moved, the officer concerned shall be required to make the necessary enquiry before release of the unpaid awarded amount of compensation to the extent of share of the contesting respondent namely Raghubir Singh.
In view of the above discussion, the Recall Application No. 12 of 2020 is allowed. The Writ Petition No. 10518 of 2013 is hereby dismissed. The Writ Petition Nos. 42680 of 2012 and 18112 of 2020 are allowed in the above terms.
(Nand Prabha Shukla,J.) (Sunita Agarwal,J.)
Order Date :- 13.4.2023
Brijesh