Allahabad High Court
Yantraleshwar Gupta Alias Dhreej Kumar ... vs State Of U P And 10 Others on 22 May, 2019
Bench: B. Amit Sthalekar, Piyush Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 39 Case :- WRIT - C No. - 12759 of 2019 Petitioner :- Yantraleshwar Gupta Alias Dhreej Kumar And Another Respondent :- State Of U P And 10 Others Counsel for Petitioner :- Ajay Kumar Singh,Ashish Kumar Singh Counsel for Respondent :- C.S.C.,P.K. Upadhyay,Vineet Sankalp With Case :- WRIT - C No. - 12768 of 2019 Petitioner :- Rajendra Maheshwari Respondent :- State Of U P And 10 Others Counsel for Petitioner :- Ajay Kumar Singh,Ashish Kumar Singh Counsel for Respondent :- C.S.C.,P.K. Upadhyay,Vineet Sankalp With Case :- WRIT - C No. - 12817 of 2019 Petitioner :- Sohrab Ahmad Respondent :- State Of U.P. And 10 Others Counsel for Petitioner :- Ajay Kumar Singh,Ashish Kumar Singh Counsel for Respondent :- C.S.C.,P.K. Upadhyay,Vineet Sankalp With Case :- WRIT - C No. - 12821 of 2019 Petitioner :- Durga Prasad Baranwal And Another Respondent :- State Of U.P. And 10 Others Counsel for Petitioner :- Ajay Kumar Singh,Ashish Kumar Singh Counsel for Respondent :- C.S.C.,P.K. Upadhyay,Vineet Sankalp With Case :- WRIT - C No. - 12837 of 2019 Petitioner :- Ashish Agarwal And Another Respondent :- State Of U.P. And 10 Others Counsel for Petitioner :- Ajay Kumar Singh,Ashish Kumar Singh Counsel for Respondent :- C.S.C.,P.K. Upadhyay,Vineet Sankalp With Case :- WRIT - C No. - 12876 of 2019 Petitioner :- Santosh Kumar Chaurasia And 3 Others Respondent :- State Of U.P. And 10 Others Counsel for Petitioner :- Ajay Kumar Singh,Ashish Kumar Singh Counsel for Respondent :- C.S.C.,P.K. Upadhyay,Vineet Sankalp With Case :- WRIT - C No. - 12877 of 2019 Petitioner :- Ishwar Chandra Giri And Another Respondent :- State Of U P And 10 Others Counsel for Petitioner :- Ajay Kumar Singh,Ashish Kumar Singh Counsel for Respondent :- C.S.C.,P.K. Upadhyay,Vineet Sankalp Hon'ble B. Amit Sthalekar,J.
Hon'ble Piyush Agrawal,J.
(Delivered by Hon'ble B. Amit Sthalekar, J.)
1. Heard Sri Ajay Kumar Singh assisted by Sri Chandra Sekhar Seth, learned counsel for the petitioners, Sri Manish Goyal, learned Additional Advocate General assisted by Sri Sudhanshu Srivastava, learned Additional Chief Standing Counsel and Ms. Akansha Sharma, learned Standing Counsel, Sri Vineet Sankalp and Sri P.K. Upadhyay, learned counsel appearing for the State-Respondents.
2. The above connected writ petitions involve identical questions of law and therefore have taken up together for consideration with the consent of the learned counsel for the parties.
3. The petitioners in the writ petition are seeking a direction to the respondents not to disposes them from the shop in question situated on the ground floor of House No.C-K 36/8 Gyanvapi, Ward Chowk, Varanasi by demolishing the said house except in accordance with the provisions of Section 46 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as the 'Act, 2013'). The further relief sought by the petitioners is for quashing the order dated 01.04.2019 whereby the contractor Toyaj Singh, M/s. T.S. Enterprises, respondent no.11 has been granted permission to demolish the said premises.
4. Briefly stated the case of the petitioners is that there is a Society known as Carmichael Library Association at C.K. 36/8, Gyanvapi, Chowk, Varanasi, which was established in the year 1872 and registered in the year 1889 under the Societies Registration Act, 1860 (hereinafter referred to as the Act, 1860). The Society owns a building near Shri Kashi Vishwanath Temple, Vishwanath Gali, Varanasi. It is stated that on the ground floor of the building there are several shops and there is no other accommodation residential or otherwise. On the first floor there is stated to be a commercial accommodation under the tenancy of 'Jalan Synthetics'. On the second floor there is a library of the Society and on the third floor there is a camp of the Central Reserve Police Force (C.R.P.F.). It is stated that there are about 26 shops in the entire building.
5. The case of the petitioners in W.P. No.12759 of 2019 is that originally one Sarju Prasad, grand father of the petitioner no.1 was the tenant of one shop on the ground floor in the building and since then the tenancy remained as such for about 80 years and after his death his son Lakhan Lal Gupta, father of the petitioner no.1 became the tenant and after the death of Lakhan Lal in the year 1993 the tenancy of the shop devolved upon the petitioner no.1 and his mother petitioner no.2, Smt Annpurna Devi and therefore they are the statutory tenants in the building. The petitioners are stated to be carrying on the business of selling Bangles, Bindi, Mala, Phool and Prasad etc. in the shop known as 'Yantraleshwar Bangle Store' and 'Sanvi Pujan Bhandar'. It is stated that the petitioners have been issued rent receipts and have also been paying electricity bills etc. The rent of the shop is stated to be Rs.500/- per month and was last deposited with the Carmichael Library Association, respondent no.10 herein upto March, 2019.
6. The controversy giving rise to the present writ petition is stated to have started when the respondent authorities started evicting persons from their accommodations in Shri Kashi Vishwanath Temple area. So far as the petitioners are concerned, it is stated that the land-lord, namely, the Carmichael Library Association transferred the building in question being C.K. 36/8, Gyanvapi, Chowk, Varanasi in favour of the Governor, State of U.P. through Nodal Officer/Chief Executive Officer, Shri Kashi Vishwanath Temple, Varanasi through a registered sale deed dated 15.02.2019 for a sale consideration of Rs.21,46,00,000/- (Twenty One Crores Forty Six Lacs). As a result of the house in question being sold to the Government, the Government, it is stated, has started the demolition of the building thereby threatening the possession of the petitioners who are the tenants of a shop in the building. It is stated that a meeting was held between the tenants and the Chief Executive Officer, Shri Kashi Vishwanath Temple in which the tenants were asked to vacate the premises and thereafter the District and Temple Administration started bringing pressure upon the petitioners to vacate the premises.
7. It is stated that on 01.04.2019 the impugned order was passed directing the Contractor, Toyaj Singh, M/s T.S. Enterprises to proceed with the demolition of the said building and at about 7 P.M. the employees of the Temple came to the building and asked all the tenants to vacate their shops and they also started the process of demolition on the upper floor of the building in question on 02.04.2019 with the help of police force.
8. The contention of the petitioners is that after the building has been purchased by the Government from the Society the petitioners become the statutory tenants of the Government and therefore, they cannot be evicted from the shops in question without adopting the procedure laid down in the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the 'Act, 1972') and complying the provisions of Section 106 read with Section 109 of the Transfer of Property Act, 1882 (hereinafter referred to as the 'Act, 1882).
9. The grievance of the petitioners also is that the acquisition proceedings are being resorted to without framing any scheme for rehabilitation and resettlement of the petitioners and other similarly situated shop keepers as per the provisions of Section 46 of the Act, 2013. It is stated that the Government by G.O. dated 29.01.2018 has released Rs.Four Thousand Lacs (Rs.40 Crores) for acquisition of properties for purposes of expansion and beautification of the roads from river Ganges to Shri Kashi Vishwanath Temple. It is also stated that a further sum of Rs.150,00,00,000/- (Rs.150 Crores) has been sanctioned by another Government order dated 27.04.2018 and again another Rs.100 Crores have been sanctioned vide G.O. Dated 15.11.2018.
10. A preliminary objection has been raised by Sri Manish Goyal, learned Additional Advocate General assisted by Sri Sudhanshu Srivastava, learned Additional Chief Standing Counsel, Ms. Akansha Sharma, learned Standing Counsel, Sri Vineet Sankalp and Sri P.K. Upadhyay, learned counsel appearing for the Respondents that the writ petition itself is not maintainable as it involves disputed questions of fact with regard to the question as to whether the petitioners are actually the tenants of the Carmichael Library Association or not and whether they are in accommodation of the shops in question as claimed by them and therefore, such disputed questions of fact cannot be decided in a writ petition and remedy for the petitioners is by way of appropriate civil proceedings before a court of competent jurisdiction and in any case writ jurisdiction is not the remedy for determining disputed questions of fact. Sri Manish Goyal submitted that the Act of 2013 itself did not apply to the proceedings of taking possession of the building in question through private negotiation through a sale deed executed between the Governor through the Nodal Officer/Chief Executive Officer as one party with Carmichael Library Association as the other party through a sale deed dated 15.02.2019.
11. In support of his submission the learned Additional Advocate General has placed reliance upon certain Division Bench judgments of this Court in Writ Petition No.13236 of 2018 (Madan Mohan Giri and Others Vs. State of U.P. and Others) in which the Division Bench vide its order dated 12.04.2018 has dismissed the writ petition by observing that the petitioners have an efficacious alternative remedy by way of filing a civil suit before a competent court. Similar view was taken by another Division Bench of this Court in Writ Petition No.34572 of 2018 (Acharya Anjani Kumar Tiwari Vs. State of U.P. and Others).
12. Sri Ajay Kumar Singh assisted by Sri Chandra Sekhar Seth, learned counsel for the petitioner, on the other hand, referred to the provisions of Section 63 of the Act, 2013 and submitted that Section 63 bars the remedy of civil suit in respect of all disputes under the Act of 2013. Section 63 of the Act, 2013 reads as under:
"63. No Civil Court (other than High Court under article 226 or article 227 of the Constitution or the Supreme Court) shall have jurisdiction to entertain any dispute relating to land acquisition in respect of which the Collector or the Authority is empowered by or under this Act, and no injunction shall be granted by any Court in respect of any such matter."
Having gone through the provisions of Section 63 of the Act, 2013 we are of the view that the writ petition cannot be dismissed in limine by relegating the petitioners to the remedy of the civil court without first determining the question as to whether the provisions of Section 63 of the Act, 2013 apply or do not apply to the facts of the present case.
13. We find that the two Division Benches while passing the orders in the case of Madan Mohan Giri (supra) and Acharya Anjani Kumar Tiwari (supra) have not examined the application of the Act, 2013 in the context of the controversy involved in those cases with reference to the provisions of Section 63 of the Act, 2013 and without first adjudicating as to whether the Act of 2013 has application to the sale proceedings in the present case the direction relegating the petitioners therein to the remedy of civil court is an order/judgment per incuriam. The learned counsel for the parties also submitted that the question of law can be decided without calling for any counter affidavit. We, therefore, have proceeded to hear this matter with the consent of the learned counsel for the parties on the pure question of law with regard to the applicability of the Act, 2013 to the facts of the present case and resultantly the maintainability of the writ petition itself.
14. Sri Ajay Kumar Singh, learned counsel for the petitioners has referred to the provisions of Section 46 of the Act, 2013. This Section provides for rehabilitation and resettlement in the case of purchase of land by certain persons other than specified persons. Section 46 of the Act, 2013 reads as under:
"46. Provisions relating to rehabilitation and resettlement to apply in case of certain persons other than specified persons. (1) Where any person other than a specified person is purchasing land through private negotiations for an area equal to or more than such limits, as may be notified by the appropriate Government, considering the relevant State specific factors and circumstances, for which the payment of Rehabilitation and Resettlement Costs under this Act is required, he shall file an application with the District Collector notifying him of-
(a) intent to purchase;
(b) purpose for which such purchase is being made;
(c) particulars of lands to be purchased.
(2) It shall be the duty of the Collector to refer the matter to the Commissioner for the satisfaction of all relevant provisions under this Act related to rehabilitation and resettlement.
(3) Based upon the Rehabilitation and Resettlement Scheme approved by the Commissioner as per the provisions of this Act. the Collector shall pass individual awards covering Rehabilitation and Resettlement entitlements as per the provisions of this Act.
(4) No land use change shall be permitted if rehabilitation and resettlement is not complied with in full.
(5) Any purchase of land by a person other than specified persons without complying with the provisions of Rehabilitation and Resettlement Scheme shall be void ab initio:
Provided that the appropriate Government may provide for rehabilitation and resettlement provisions on sale or purchase of land in its State and shall also fix the limits or ceiling for the said purpose.
(6) If any land has been purchased through private negotiations by a person on or after the 5th day of September. 2011. which is more than such limits referred to in sub-section (1) and, if the same land is acquired within three years from the date of commencement of this Act, then, forty per cent of the compensation paid for such land acquired shall be shared with the original land owners.
Explanation.-For the purpose of this section, the expression-
(a) "original land owner" refers to the owner of the land as on the 5th day of September, 2011;
(b) "specified persons" includes any person other than-
(i) appropriate Government:
(ii) Government company;
(iii) association of persons or trust or society as registered under the Societies Registration Act. 1860, wholly or partially aided by the appropriate Government or controlled by the appropriate Government."
Referring to the Explanation (b) to Section 46 of the Act, 2013, learned counsel for the petitioners submitted that 'specified person' has been defined to include any person other than-
(i) appropriate Government;
(ii) Government Company;
(iii) association of persons or trust or society as registered under the Societies Registration Act. 1860 (21 of 1860), wholly or partially aided by the appropriate Government or controlled by the appropriate Government.
15. He further submits that in sub-section (1) of Section 46 the statute provides that if any person other than a 'specified person' is purchasing land through private negotiations for an area equal to or more than such limits, as may be notified by the appropriate Government, considering the relevant State specific factors and circumstances, for which the payment of rehabilitation and Resettlement Costs under this Act is required, he shall file an application with the District Collector notifying him of-
(a) intent to purchase;
(b) purpose for which such purchase is being made;
(c) particulars of lands to be purchased.
He, therefore, submits that any person other than a 'specified person' must necessarily mean the appropriate Government or Government Company or association of persons or trust or society as defined in the Explanation (b) of Section 46 of the Act, 2013. He submits that Explanation (b) while defining 'specified persons' excludes the appropriate Government, Government company, association of persons or trust or society and therefore, under sub-section (1) of Section 46 of the Act, 2013 the reference to any person other than a 'specified persons' must necessarily mean the Government in the present case.
16. Learned counsel for the petitioners next submitted that Section 46 of the Act, 2013 mandates rehabilitation and resettlement scheme to be prepared by a person other than a specified person who purchases such land and any purchase of such land without providing for a rehabilitation and resettlement scheme shall be void ab initio. Reference has been made to sub-section 5 of Section 46 of the Act, 2013.
17. Laying stress on the provisions of sub-section (5) it is submitted that the proviso mandates that the appropriate Government may provide for rehabilitation and resettlement provisions on sale or purchase of land in its State and shall also fix the limits or ceiling for the said purpose and that the word 'may' used in the proviso must necessarily be read as 'shall' otherwise sub-section (5) of Section 46 itself would be rendered redundant.
Sri Ajay Singh submitted that the land cannot be acquired through purchase by the appropriate Government without framing a rehabilitation and resettlement scheme and in the absence of any such scheme such purchase would be ab initio void.
The submission is that in the present case the Government has not framed any scheme for resettlement or rehabilitation of the petitioners who are tenants of the premises in question and therefore, the purchase of the said property through the sale deed dated 15.02.2019 is a void document.
18. Learned counsel for the petitioners has also referred to the provisions of Schedule 4 to the Act, 2013 which is a list of enactments relating to land acquisition and rehabilitation and resettlement and submits that the provisions of Section 46 of the Act, 2013 would apply to acquisitions under the Acts enumerated in the 4th Schedule also.
19. Sri Ajay Singh then referred to the provisions of Section 3, sub-section (c) clause (iv) of the Act, 2013 and submitted that the petitioners falls within the definition of "affected family" which includes a family residing on any land in the urban areas for preceeding three years or more prior to the acquisition of the land or whose primary source of livelihood for three years prior to the acquisition of the land is affected by the acquisition of such land. Section 3, sub-section (c) clause (iv) of the Act, 2013 reads as under:
"3 (c) (iv) a family residing on any land in the urban areas for preceding three years or more prior to the acquisition of the land or whose primary source of livelihood for three years prior to the acquisition of the land is affected by the acquisition of such land;
20. Reference has also been made to the provisions of Clause (n) to submit that "holding of land" means the total land held by a person as an owner, occupant or tenant or otherwise and therefore, submits that the petitioners being tenants of the premises in question would be covered by the provisions of sub-section (n) of section 3 of the Act, 2013.
21. Reference has also been made to section-3, sub-section (x), clause (iv) which defines "person interested" to mean persons having tenancy rights under the relevant State laws including share-croppers by whatever name they may be called. Sub-section (n) and Sub-section (x) clause 4 of Section 3 of Act, 2013 are extracted below:
"(n) "holding of land" means the total land held by a person as an owner occupant or tenant or otherwise;
.........................................................
(x) " person interested means-
(iv) persons having tenancy rights under the relevant State laws including share croppers by whatever name they may be called."
22. Learned counsel then referred to the provisions of sub section (e) of Section 3 of the Act, 2013 and submitted that the "appropriate government" in relation to acquisition of land situated within the territory of, a State, means the State Government. Section 3(e) (i) of the Act, 2013 reads as under:
"3 (e) (i) in relation to acquisition of land situated within the territory of, a State, the State Government;"
23. It is further submitted that the proviso to sub-section (e) lays down that in respect of a public purpose in a district for an area not exceeding such as may be notified by the appropriate Government, the Collector of such district shall be deemed to be the appropriate Government. Proviso to sub section (e) of Section 3 of the Act, 2013 reads as under:
"Provided that in respect of a public purpose in a District for an area not exceeding such as may be notified by the appropriate Government the Collector of such District shall be deemed to be the appropriate Government."
24. Learned counsel has also made reference to paragraph 77 of the U.P. Gazette dated 6.8.2014 which states that in exercise of powers conferred by the proviso to sub-section (e) of Section 3 of the Act, 2013, the Governor has been pleased to notify that all District Collectors shall be deemed as appropriate Government for acquisition of the area not in excess of 100 acres for an individual project within their territorial jurisdiction. Paragraph 77 of the U.P. Gazette Notification dated 6.8.2014 as published in 2014 LLT (V) 114 reads as under:
"77. In exercise of the powers conferred by the proviso to clause (e) of Section 3 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Act No.30 of 2013), the Governor is pleased to notify that all District Collectors shall be deemed as appropriate Government for acquisition of the area not in excess of 100 acres for an individual project within their territorial jurisdiction."
25. The submission is that in the present case the sale deed has been executed by the Chief Executive Officer/Nodal Officer of Shri Kashi Vishwanath Temple acting on behalf of the Governor as the appropriate government and therefore such a sale deed is no sale deed in the eye of law.
26. Next referring to the Government Notification dated 19.3.2015, Annexure-12 to the writ petition, it was submitted that for acquisition of land Rs. 50 crores has been sanctioned and the competent authority is the concerned Commissioner whereas in the present case the sale deed has been executed on behalf of the Governor by the Chief Executive Officer, Shri Kashi Vishwanath Temple acting as the State Government and, therefore, the sale deed was in violation of the Government Order dated 19.3.2015.
27. Learned counsel further submitted that Section 2(i) of Shri Kashi Vishwanath Special Area Development Board Varanasi Act, 2018 (hereinafter referred to as the Act, 2018) also provides for a rehabilitation plan which shall be prepared by the Board, as may be required, according to approved Rules and Regulations, in order to settle and rehabilitate, residents, owners, occupants who are to be relocated for implementation of development plan for the Special Development Area, as prepared by the Board and approved by the State Government.
28. Sri Ajay Singh, therefore, submitted that the Act of 2018 also contemplates the framing of a rehabilitation plan but in the present case the respondents have purchased the property in question without framing any rehabilitation plan and, therefore, the said acquisition is wholly illegal and void. It was further submitted by the learned counsel for the petitioners that the Government Order of 29.1.2018, Annexure-8 to the writ petition provided a sum of Rs.4000 lacs for the acquisition of land/buildings with a direction that the said expenditure shall be completed by 31.3.2018. He further referred to a letter dated 27.4.2018, Annexure-9 to the writ petition which also speaks of acquisition and provided a sum of Rs.150 crores out of a total of Rs. 360 crores to be disbursed by 31.3.2019. Reference has also been made to the G.O. dated 15.11.2018, Annexure-10 to the writ petition, which provided that a sum of Rs. 100 crores out of Rs. 210 crores was to be disbursed towards acquisition by 31.3.2019. Again the learned counsel referred to the G.O. dated 4.5.2018, Annexure-11 to the writ petition, which provided for disbursement of Rs. 40 crores in the first installment and Rs.150 crores in the second installment for the purchase of properties for the expansion and development of Shri Kashi Vishwanath Temple Project. Reference has also been made to the Cabinet decision dated 13.11.2018, copy of which has been filed as Annexure-14 to the writ petition, which has referred to the G.O. dated 19.3.2015 and provided that for the Kashi Vishwanath Temple expansion and beautification project a sum of Rs.413.1096 crores was to be spent and this expenditure was to be made for the purchase of building/land in terms of the Notification dated 19.3.2015 of the Finance Department and therefore, learned counsel for the petitioners submits that since the Government Orders also refer to the provisions of Section 46 of the Act, 2013, therefore, the respondents were required to frame a Scheme of Rehabilitation and Re-settlement as contemplated in sub-section (5) of Section 46 of the Act, 2013 otherwise the entire acquisition would be ab initio void.
29. Learned counsel for the petitioners also assailed the sale deed stating that in the sale deed it was mentioned that the circle rate was Rs.10,73,54,053/- whereas the building in question was purchased for Rs. 21,46,00,000/- almost twice the value of the property but the sale deed does not give the details of the shops situated in the building in question nor does it disclose the names of the tenants of shops for ulterior motive.
30. According to the petitioners there are 26 shops in the building of the Carmichael Library Association, the property in question and the petitioners' shop number is CK 36/8 Gyanvapi, Chowk, Varanasi. In support of its claim the petitioners have filed the photographs of the said shop at page 23 and 24, Annexure-2 to the writ petition and a map of the said property as Annexure-3 to the writ petition and therefore, he submits that if the land has been purchased by the appropriate Government from Carmichael Library Association and the petitioners are tenants of the Carmichael Library Association then after the purchase of the building, the petitioners become the tenants of the Government and therefore, the Government cannot seek to evict the petitioners from the said property obliquely by use of force under the garb of demolition of the building in question for the purposes of Shri Kashi Vishwanath Temple Project without taking recourse to the provisions of either Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 or without giving notice under section 106 of the Transfer of Property Act, 1882 read with Section 109 of the Act.
31. The submission also is that the provisions of Section 105 of the Act, 2013 shall not apply to the enactments relating to land acquisition specified in the IV Schedule subject to the provisions of sub-section (3) of Section 105 of the Act, 2013. In sub section (3) of Section 105 it is provided that the Central Government by notification within one year from the date of commencement of the Act direct that any of the provisions of this Act relating to determination of compensation in accordance with the First Schedule and rehabilitation and resettlement specified in the Second and Third Schedule, being beneficial to the affected families, shall apply to the cases of land acquisition under the enactments specified in the Fourth Schedule or shall apply with such exceptions or modifications that do not reduce the compensation or dilute the provisions of the Act relating to compensation or rehabilitation and re-settlement, as may be specified in the notification, as the case may be. Sub section (3) of Section 105 of the Act, 2013 reads as under:
"105 (3) The Central Government shall, by notification, within one year from the date of commencement of this Act, direct that any of the provisions of this Act relating to the determination of compensation in accordance with the First Schedule and rehabilitation and re-settlement specified in the Second and Third Schedules, being beneficial to the affected families, shall apply to the cases of land acquisition under the enactments specified in the Fourth Schedule or shall apply with such exceptions or modifications that do not reduce the compensation or dilute the provisions of this Act relating to compensation or rehabilitation and re-settlement, as may be specified in the notification, as the case may be."
32. Learned counsel for the petitioners submits that the Ministry of Rural Development vide notification dated 28.3.2015 has extended the provisions of the Act, 2013 relating to the determination of compensation in accordance with the First Schedule, rehabilitation and resettlement in accordance with Second Schedule and infrastructure amenities in accordance with the Third Schedule which shall apply to all cases of land acquisition under the enactments specified in the Fourth Schedule to the said Act. The relevant extract of the Government notification dated 28.8.2015 reads as under:
" Now, therefore, in exercise of the powers conferred by sub-section (1) of Section 113 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and resettlement Act, 2013 (30 of 2013), the Central Government hereby makes the following Order to remove the aforesaid difficulties, namely:-
1. (1) This Order may be called the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Removal of Difficulties) Order, 2015.
(2) It shall come into force with effect from the 1st day of September, 2015.
2. The provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, relating to the determination of compensation in accordance with the First Schedule, rehabilitation and resettlement in accordance with Second Schedule and infrastructure amenities in accordance with the Third Schedule shall apply to all cases of land acquisition under the enactments specified in the Fourth Schedule to the said Act."
33. Sri Ajay Singh further submitted that Section 6 (2) (b) of the Act, 2018 provides that the Board constituted under the Act of 2018 shall prepare a plan to rehabilitate, as may be required, and get it approved by the State Government in order to settle and rehabilitate residents, owners or occupants: who are to be relocated for implementation of development plan for the Special Development Area. He further submitted that sub section (3) (i) of Section 6 of the Act, 2018 also provides that the Board may acquire any building or land through mutual negotiation, purchase, donation, transfer, lease, rent or otherwise. It may also acquire any land, buildings in accordance with the provisions of law for the time being in force and shall publish a public notice in the local news paper/gazette inviting persons who may have any claim or interest in such property to file their claim. Section 6 (2) (b) and sub section (3) (i) of the Act, 2018 read as under:
"6 (2) (b) The Board shall prepare a plan to to rehabilitate, as may be required, and get it approved by the State Government in order to settle and rehabilitate residents, owners or occupants: who are to be relocated for implementation of development plan for the Special Development Area;
(c) ...................................
(3) (i) Subject to the directions given by the State Government, the Board may acquire any building or land through mutual negotiation, purchase, donation, transfer, lease, rent or otherwise. It may also acquire any land, buildings in accordance with the provisions of law for the time being in force and shall publish a public notice in the local news paper/gazette inviting persons who may have any claim or interest in such property to file their claim;
34. Referring to the sale deed, learned counsel for the petitioners also submitted that in the description of the property in the East it is mentioned as house (without stating whose house or house number); in the West it is mentioned as Gully (without mentioning the name of the lane); in the North it is mentioned as road Maidagin Crossing to Godhaulia Crossing via Chowk and in the South it is mentioned as house (without mentioning the house number or name of the owner). He therefore, submits that the description of the property (Chauhaddi) is deliberately vague and therefore, the sale deed is a wholly sham transaction. He also submits that the photograph of the building filed alongwith the sale deed is not of the petitioners' building but it is the photograph of an adjacent building CK 36/14 Gyanvapi, Varanasi whereas the number of the property/building in question is CK 36/8 Gyanvapi Chowk, Varanasi and a wrong photograph has deliberately been affixed in the sale deed without also showing the shops of the petitioners and other tenanted accommodation.
35. Learned counsel also submitted that in paragraph 2 of the sale deed it has falsely been stated that the building in question which is the subject matter of the sale deed is free from all encumbrances and disputes, which is a false declaration as there are 26 shops in the building which are all tenanted including the shop of the petitioners and therefore the sale deed is not a valid document.
36. The learned counsel further submitted that Section 46 of the Act, 2013 in sub section (1) refers to purchase of land through private negotiation for an area equal to or more than "such limits" but in the present Kashi Vishwanath Temple Development and Beautification Project no limit has been prescribed anywhere.
37. The learned counsel for the petitioners has placed reliance on the judgment of the Supreme Court in AIR 2017 SC 2450 (Government of NCT of Delhi Vs. Manav Dharam Trust and Another) and submitted that the Supreme Court therein had defined the word "person interested" used in Section 3(b) of the Act, 2013 to mean all persons claiming interest in compensation to be paid on account of the acquisition of land under the Act, 2013. Among others which includes any person whose primary source of livelihood is likely to be adversely affected is also a "person interested". He further submitted that the 'affected family' defined in Section 3 (c) of the Act, 2013 has also been interpreted by the Supreme Court to indicate that even a family residing in the lands sought to be acquired, be it an owner or not, is an affected family, and if a family or a person is affected, necessarily, he has a right to approach the Court to protect his interests.
38. Reliance has also been placed upon a judgment of a Division Bench of this Court in Writ Petition No.39163 of 2010 (Carmichael Library Association and Another Vs. State of U.P. and Others) and connected Writ Petition No.18718 of 2004 (Kapil Narayan Pandey Vs. State of U.P. and Others). The Writ Petition No.39163 of 2010 was filed by Carmichael Library Association seeking quashing of the order of the District Magistrate, Varanasi dated 29.06.2010 to requisition the accommodation, and to stay the effect and operation of the order dated 29.06.2010. The Writ Petition No.18718 of 2004 was filed by Sri Kapil Narayan Pandey in public interest with a prayer to direct the District Magistrate, Varanasi, and the Senior Superintendent of Police, Varanasi to vacate the two halls on the 2nd floor; one hall and roof on the 3rd floor; roof on the 4th floor of the library/association situated at Gyanvapi, Municipal No.C.K. 36/8 Gyanvapi, Varanasi and to pay compensation at the rate of Rs.20,000/- per month with interest at 12% per annum since 16.12.1992. The Division Bench of the High Court held that there was no justification to grant relief of a writ of mandamus to the District Magistrate to vacate the premises and handover possession to the society and it was also directed that if the petitioners have any grievance with regard to payment of compensation for occupation of the specified portion of the building for which the District Magistrate has already communicated an offer they may approach him for determining the amount. It was also directed that the District Magistrate will pass necessary orders with regard to the quantum and terms of payment of compensation to the Library Association.
39. Learned counsel for the petitioners submitted that this judgment was put to challenge in the Supreme Court in Civil Appeal Nos.1404-1405 of 2015 and the Supreme Court set aside the judgment of the High Court observing that as an agreement has been entered into between the parties, the relationship between the parties shall be governed by that agreement. The order being a short one is extracted below in its entirety:-
" Leave granted.
Heard Mr. Manish Shanker Srivastava, learned counsel for the petitioner and Mr. Ravi Prakash Mehrotra, learned counsel appearing for the State.
Learned counsel for the State submitted that the occupational charges from January 1993 to June 2013 @ Rs.5,000/- per month, amounting to Rs.18,00,000/- (Rupees eighteen lakhs only) have already been paid. An agreement has been entered into to pay Rs.10,000/- (Rupees ten thousand only) per month towards the occupational charges. The arrears on the basis of the agreement shall be paid within three months hence.
As an agreement has been entered into between the parties, the relationship between the parties shall be governed by that agreement. Learned counsel for the parties has acceded to the said position.
The appeals are allowed to the extent indicated above and resultantly the order passed by the High Court is set aside.
There shall be no order as to costs."
40. Reliance was also placed on a judgment of the Supreme Court reported in (1989) 4 SCC 131 (Krishna Ram Mahale Vs. Shobha Venkat Rao) wherein it was held by the Supreme Court in Paragraph 8 that it is well settled law in this country that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. Para 8 of the judgment reads as under:-
"8. Mr. Tarkunde, learned Counsel for defendant No. 3, the appellant herein, rightly did not go into the appreciation of the evidence either by the Trial Court or the High Court or the factual conclusions drawn by them. It was, however, strongly urged by him that the period of licence had expired long back and the plaintiff was not entitled to the renewal of licence. It was submitted by him that in view of the licence having come to an end, the plaintiff had no right to remain in charge of the business or the premises where it was conducted and all that the plaintiff could ask for was damages for unlawful dispossess ion even on the footing of facts as found by the High Court. We find ourselves totally unable to accept the submission of Mr. Tarkunde. It is a well-settled law in this country that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. If any authority were needed for that proposition, we could refer to the decision of a Division Bench of this Court in Lallu Yeshwant Singh v. Rao Jagdish Singh and Ors. (1968) 2 SCR 203 at pp. 208-210; (AIR 1968 SC 620 at pp 622-23). This Court in that judgment cited with approval the well-known passage from the leading privy Council case of Midnapur Zamindary Company Limited v. Naresh Narayan Roy 51 I.A. 293 at p. 299 (AIR 1924 PC 144) where it has been observed (p-208) (of SCR) : (at p.622 of AIR):
"In India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a Court."
41. Further reliance was placed on the judgment of the Supreme Court reported in (2004) 1 SCC 769 (Rame Gawda Vs. M. Varadappa Naidu) wherein it was held by the Supreme Court in Paragraph 8 that so far as the Indian Law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. Para 8 of the judgment reads as under:-
"It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of he cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner."
42. Reliance has also been placed on a Division Bench judgment of this Court in (2019) 2 ADJ 728 (DB) (Rai Ajay Kumar and Others Vs. State of U.P. and Others) on the proposition that the State cannot interfere in the peaceful enjoyment of the property of a person without authority of law enacted by the competent legislation and not by Government orders.
The above case law was cited by the learned counsel for the petitioners on the proposition that a person cannot be deprived of his property except in accordance with law.
43. Learned counsel for the petitioners has placed reliance on the provisions of Section 109 of the Transfer of Property Act, 1882 wherein it is laid down that if the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and, if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it. Section 109 of the Act, 1882 reads as under:
"109. Rights of lessor's transferee- If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and, if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not, by reason only of such transfer cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him:
Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee.
The lessor, the transferee and the lessee may determine what proportion of the premium of rent reserved by the lease is payable in respect of the part transferred, and, in case they disagree, such determination may be made by any Court having jurisdiction to entertain as suit for the possession of the property leased."
44. Sri Manish Goyal, learned Additional Advocate General for the respondents per contra submitted that 'limit' mentioned under Section 46 of the Act, 2013 does not exceed 20 hectares as determined under the Government Notification dated 09.02.2016. The Notification of 09.02.2016 S.O. 424 (E) reads as under:
"S.O.424 (E)- In exercise of the powers conferred by sub-section (1) of section 46 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (No.30 of 2013), the Central Government, hereby, notifies that the limit of extent of land referred to in sub-section (1) of section 46 of the said Act shall be 20 (twenty) hectares in urban areas and 40 (forty) hectares in rural areas."
The learned Additional Advocate General submits that this Notification is not under challenge in the present case and therefore, the provisions of Section 46 of the Act, 2013 have no application in the case of the petitioners and no relief can be granted.
45. The learned Additional Advocate General has further placed before the Court the Government Order dated 22.10.2014 published in the U.P. Gazette on the same date, under which the Government has notified the limit for purposes of application of Section 46 sub-section (1) of the Act, 2013 to 2500 hectares. Copy of the Government Order dated 22.10.2014 has been provided to the learned counsel for the petitioners.
46. The learned Additional Advocate General referring to ground-A of the writ petition next submitted that the petitioners have alleged that the respondents are purchasing houses adjacent to Shri Kashi Vishwanath Temple at exorbitant rates without mentioning details of shops, shop number or names of tenants or without giving any notice or opportunity of hearing to the parties. He submits that this is not a public interest litigation and the petitioners cannot plead the cause of other alleged tenants who are not even before this Court in the present writ proceedings.
47. With regard to the other grounds learned counsel submitted that the petitioners are claiming to be tenants of the Carmichael Library Association, respondent no.10 but there is nothing on record to show that they are the tenants of the respondent no.10.
48. Sri Manish Goyal submits that the petitioners in paragraph 6 of the writ petition claimed to be the tenants of the respondent no.10 for the last 80 years but there is not a single document nor any rent note or rent receipts filed in this regard.
49. Referring to the documents filed, colly. Annexure-4 to the writ petition, he submits that the first document at page 29 shows the registration of the shop as M/s Yantraleshwar Bangle Store and the name of the owner is shown as Dheeraj Kumar Gupta and the address is shown as C.K. 36/8, Gyanvapi, Chowk, Varanasi. The next document is of the year 2004-05 upto 2008-09. There is nothing to show that thereafter the registration of the shop has been renewed or not. Thereafter referring to the receipts filed at pages 32 to 45 of the writ petition, learned counsel submits that in some documents only shop number has been mentioned, somewhere it is mentioned as Shop No.17 and somewhere it is mentioned as Shop No.18 or Shop no.24. He, therefore submits that it is not clear as to whether the petitioners are the tenants of shop number 17 or 18 or 24 or which of these shops was given on rent to late Sarju Prasad, grand father of the petitioners, if at all. His submission is that some of the receipts are in the name of Dheeraj Kumar whereas the writ petition has been filed in the name of Yantraleshwar Gupta Alias Dhreej Kumar And Another, therefore, it is not clear as to whether Yantraleshwar Gupta and Dheeraj Kumar are one and the same person or two different persons.
50. Similarly referring to the electricity receipts at pages 41, 42, 43, 44, 45 of the writ petition the learned counsel submits that the electricity receipts are also in the name of Dheeraj Kumar and not Yantraleshwar Gupta and therefore it is not known whether Yantraleshwar Gupta and Dheeraj Kumar are two different persons or the same person.
51. Referring to the photographs at page 23 of the writ petition the learned Additional Advocate General submits that the address on the shop though mentioned as C.K. 36/8, Gyanvapi Crossing, Varanasi but the shop number is not disclosed nor can it be ascertained from the photographs as to whether the shop is located in the Carmichael Library Association building or elsewhere.
52. The learned counsel further submitted that the petitioners are claiming themselves to have become the tenants of the Government upon the purchase by the respondents of the building belonging to the Carmichael Library Association but unless it is clear that they are the tenants of Carmichael Library Association they do not automatically become the tenants of the respondent Government. They cannot be said to be the "persons affected" or 'person interested' or 'affected family' as defined in Section 3 (c) of the Act, 2013. They also cannot be held to be 'person interested' within the meaning of Section 3 (x) or 3 (x) (iv) and these disputed questions of fact cannot be decided in the present writ petition as it would require leading of evidence.
53. Next referring to the Government Order dated 6.08.2014 paragraph 77 thereof which is already extracted hereinabove, Sri Mansih Goyal submitted that the Governor by the said notification has directed that all the District Collectors shall be deemed as appropriate Government for acquisition of the area not in excess of 100 acres (2500 hectares in the G.O. dated 22.10.2014) for an individual project within their territorial jurisdiction. He therefore submits that Section 46 of the Act, 2013 would only apply if a person other than a specified person is purchasing land through private negotiations for an area equal to more than such limits, as may be notified by the appropriate Government, and therefore submits that in this view of the matter since the building which has been purchased from the Carmichael Library Association is less than 100 acres or 2500 hectares in area the provisions of Section 46 of the Act, 2013 will have no application to such purchase and therefore, no relief can be granted to the petitioners as claimed in the present writ petition.
54. Referring to the provisions of the Act, 2018, Sri Goyal submitted that Section 2 (1) (e) defines Chief Executive Officer to mean Chief Executive Officer appointed by the State Government and he is also the executive head of Shri Kashi Vishwanath Special Area Development Board by virtue of Section 6 sub-section (1) of the Act, 2018 and submitted that in the present case the Chief Executive Officer of the Kahsi Vishwanath Temple Trust is notified as the Chief Executive Officer of the Board and are therefore one and the same person exercising dual powers therefore the sale deed executed in the name of the Chief Executive Officer acting on behalf of the Governor was perfectly valid. Section 2 (1) (e) and Section 6(1) of the Act, 2018 are extracted below:-
"2 (1) (e) "Chief Executive Officer" means the Chief Executive Officer appointed by the State Government;"
........................................
6 (1) The Chief Executive Officer will be the executive head of the Board who will act and pass orders in accordance with the provisions of this Act or the rules and regulations made under this Act;
55. The learned Additional Advocate General further submitted that the Act of 2013 contemplates only one form of acquisition, namely, acquisition after issuing of notice under Section 11 and notification under Section 19 of the Act. Under Section 2(1) the Government may acquire the land for its own use, hold and control, including in Public Sector Undertakings and for public purpose and for purposes enumerated in Section 2 sub-section (1) of the Act which are as under:-
"2. Application of Act- (1) The provisions of this Act relating to land acquisition, compensation, rehabilitation and resettlement, shall apply, when the appropriate Government acquires land for its own use, hold and control, including for Public Sector Undertakings and for public purpose, and shall include the following purposes."
56. Sub-section (2) of Section 2 of the Act, 2013 reads as under:
"2(2) The provisions of this Act relating to land acquisition, consent, compensation, rehabilitation and resettlement, shall also apply, when the appropriate Government acquires land for the following purposes, namely:--
(a) for public private partnership projects, where the ownership of the land continues to vest with the Government, for public purpose as defined in sub-section (1);
(b) for private companies for public purpose, as defined in sub-section (1):
Provided that in the case of acquisition for--
(i) private companies, the prior consent of at least eighty per cent, of those affected families, as defined in sub-clauses (i) and (v) of clause (c) of section 3; and
(ii) public private partnership projects, the prior consent of at least seventy per cent. of those affected families, as defined in sub-clauses (i) and (v) of clause (c) of section 3, shall be obtained through a process as may be prescribed by the appropriate Government:
Provided further that the process of obtaining the consent shall be carried out along with the Social Impact Assessment study referred to in section 4:
Provided also that no land shall be transferred by way of acquisition, in the Scheduled Areas in contravention of any law (including any order or judgment of a court which has become final) relating to land transfer, prevailing in such Scheduled Areas."
Under sub-section (2) of Section 2 the Government may acquire land for purposes mentioned therein and for land acquisition, consent, compensation, rehabilitation and resettlement shall also apply. Sub-section 3 of Section 2 provides for rehabilitation and resettlement under the Act in cases where-
(a) a private company purchases land, equal to or more than such limits in rural areas or urban areas, as may be prescribed by the appropriate Government, through private negotiations with the owner of the land in accordance with the provisions of section 46;
(b) a private company requests the appropriate Government for acquisition of a part of an area so prescribed for a public purpose:
Provided that where a private company requests the appropriate Government for partial acquisition of land for public purpose, then, the rehabilitation and resettlement entitlements under the Second Schedule shall be applicable for the entire area which includes the land purchased by the private company and acquired by the Government for the project as a whole. Sub-section 3 of Section 2 of the Act, 2013 reads as under:
"(3) The provisions relating to rehabilitation and resettlement under this Act shall apply in the cases where,-
(a) a private company purchases land, equal to or more than such limits in rural areas or urban areas, as may be prescribed by the appropriate Government, through private negotiations with the owner of the land in accordance with the provisions of section 46;
(b) a private company requests the appropriate Government for acquisition of a part of an area so prescribed for a public purpose:
Provided that where a private company requests the appropriate Government for partial acquisition of land for public purpose, then, the rehabilitation and resettlement entitlements under the Second Schedule shall be applicable for the entire area which includes the land purchased by the private company and acquired by the Government for the project as a whole."
57. The learned Additional Advocate General, therefore, submits that the provisions of the Act would apply only in those cases where the Government acquires the land under sub-section (1) of Section 2 or under sub-section (2) or under sub-section (3) but where the Government itself purchases lands through private negotiations it will not be obliged to frame a Scheme of Rehabilitation and Resettlement and the Schedules to the Act providing for such schemes of rehabilitation and resettlement will therefore have no application except where the land is purchased through private negotiations with reference to the 'limit' prescribed. He, therefore submits that if the Act, 2013 itself does not apply then Section 46 of the Act, 2013 will also not apply and the bar of Section 63 to proceedings before the civil court will also not apply.
58. The learned Additional Advocate General next submitted that the property in dispute in the present case was purchased by the Government from its owner, i.e. the respondent no.10 in furtherance of the objects of Shri Kashi Vishwanath Special Area Development Board, Varanasi Act, 2018 and the Act of 2018 being a later Act will have an overriding effect over the Act of 2013 in view of the specific provisions to that effect contained in Section 31 of the Act, 2018. Section 31 of the Act, 2018 reads as under:
"31. Overriding effect.- The provisions of this Act shall apply notwithstanding anything to the contrary contained in any law of the State of Uttar Pradesh for the time being in force."
59. Learned counsel submits that though the Act of 2018 speaks of rehabilitation plan in Section 2 sub-section (1) clause (i) to mean a plan which shall be prepared by the Board, according to the approved rules and regulations, in order to settle and rehabilitate residents, owners, occupants who are to be relocated for implementation of development plan for the Special Development Area, as prepared by the Board and approved by the State Government; and that under clause (j) of Section 2 (1) of the Act, 2018 the Special Development Area includes C-K 31 Gyaanwaapi, Garhwaasi Tola such rehabilitation scheme by the language of the section would have to be in terms of the plan prepared by the Board and is not mandatory in cases where the land is being purchased through private negotiations between the appropriate Government and the owner.
60. In furtherance of his submission the learned Additional Advocate General has also referred to the provisions of Section (6) sub-section (3) (i) of the Act, 2018. Section 3 (i) of the Act, 2018 reads as under:
"3 (i) subject to the directions given by the State Government, the Board may acquire any building or land through mutual negotiations, purchase, donation, transfer, lease, rent or otherwise. It may also acquire any land, buildings in accordance with the provisions of law for the time being in force and shall publish a public notice in the local newspaper/gazette inviting persons who may have any claim or interest in such property, to file their claim;"
61. The learned Additional Advocate General submits that Section 3 (i) is divided into two parts, the first part bring that subject to the directions given by the State Government, the Board may acquire any building or land through mutual negotiations, purchase, donation, transfer, lease, rent or otherwise. In the second part of the same sub-section it is provided that the Board may "also" acquire any land, buildings in accordance with the provisions of law for the time being in force and shall publish a public notice in the local newspaper/gazette inviting persons who may have any claim or interest in such property, to file their claims.
The submission is that the word 'also' clarifies the dichotomy in the nature of taking possession which may be made by the Board and therefore submits that where the land is being taken by the appropriate Government through mutual negotiations, purchase, donation, transfer, lease, rent or otherwise the scheme of rehabilitation or resettlement would not be mandatory to validate such acquisition.
62. Sri Manish Goyal further submits that the reference to Section 46 in the Government Order dated 19th March, 2015 is in respect of purchase of land from the land owner and the reference to the provisions of Section 46 in this Government Order is only a simple reference and does not mandate that even in a case of purchase of property by the appropriate Government through mutual negotiations in respect of land less than the prescribed limit would be subject to the provisions of Section 46 and the Scheme of rehabilitation and resettlement. In the alternative he submits that in any case the Government Order of 19th March, 2015 would have no application after coming into force of the Act, 2018.
63. We have heard the learned counsel for the parties and perused the documents on record.
64. The submission of the learned counsel for the petitioners is that though the property in question is stated to have been purchased by the appropriate Government through a registered sale deed dated 15.02.2019 from the respondent no.10 but the photographs shown in the sale deed are not of the property of Carmichael Library Association. He further submitted that the value of the property has been shown as Rs.10,73,54,053/- but it has been purchased at an inflated rate at Rs.21,46,00,000/-. He further submitted that the description of the property (chauhaddi) does not mention the property to the east or in the south nor does it mention the name of the gully in the west and the description to the north only mentions road Maidagin Crossing to Gadhaulia Crossing via Chowk which is absolutely vague.
In our opinion, we cannot examine these questions as the sale deed is not under challenge before us and if the petitioners are aggrieved by the sale deed the remedy for them is before the appropriate civil court.
65. The contention of the petitioners further is that they were the tenants of the Carmichael Library Association, respondent no.10 and after purchase of the property by the Government they became the statutory tenants of the Government. We find that there is nothing on record to show that they were the tenants of the respondent no.10. The photographs filed at page 23 of the writ petition contains two banners, one banner showing the name of the shop as 'Yantraleshwar Bangle Store' and just below that there is another banner showing 'Sanvi Pujan Bhandar, Gate No.4, C.K. 36/8, Gyanvapi Crossing, Varanasi'. There is no mention of Carmichael Library Association to show that the shop is located within the building owned by the Carmichael Library Association, respondent no.10. The map of the property which has been filed as Annexure-3 to the writ petition contains several numbers which are stated to be various shops within the building of the respondent no.10 but thereafter the receipts of rent which have been filed from page 29 to 40 of the writ petition mention the shop number as 17 or 18 or 24. The receipt which has been filed at page no.32 is in the name of Sri Sarju Prasad stated to be the grand father of the petitioners in which the shop number has been mentioned as No.17. The receipt at page 34 which is also in the name of Sri Sarju Prasad mentions the shop number as 24. The receipts at page number 34 and 35 which are also in the name of Sri Sarju Prasad do not mention the shop number at all. The receipts at page numbers 36, 37 and 38 are in the name of one Sri Dheeraj Kumar and do not mention the shop number nor does it show that it is in the name of Yantraleshwar Gupta. The receipt at page 39 which is in the name of Sri Sarju Prasad mentions the shop number as 18. At page 40 again the shop number has been mentioned as 18 and the receipt is in the name of Sri Sarju Prasad.
66. The electricity receipts which have been filed at pages 41, 42, 43, 44 and 45 are in the name of Dheeraj Kumar and does not mention the shop number but only mentions C.K. 36/8, Gyanvapi, Varanasi, therefore, it is not clear whether these electricity receipts are of the entire building owned by the Carmichael Library Association whose address is C.K. 36/8 or are the receipts of a particular shop of Sri Dheeraj Kumar. The shop number is not mentioned in the electricity receipts. Whether Yantraleshwar Gupta and Dheeraj Kumar are one and the same person is also not clear from the receipts filed with the writ petition although the petitioner in the writ petition is shown as 'Yantraleshwar Gupta alias Dhreej Kumar.
67. Sub-section (1) of Section 2 of the Act, 2013 provides for land acquisition, compensation, rehabilitation and resettlement for purposes mentioned in Clauses (a), (b), (c), (d), (e) and (f) and its various sub clauses as well as sub-section (2) which also states that the provisions of the Act would be applicable to land acquisition, consent, compensation, rehabilitation and resettlement when the appropriate Government acquires land;
(a) for public private partnership projects where the ownership of the land continues to vest with the Government for public purpose as defined in sub-section (1);
(b) for private companies for public purpose, as defined in sub-section (1).
68. Sub-section (3) of Section 2 of the Act, 2013 states that the provisions relating to rehabilitation and resettlement under the Act shall apply in the cases where,-
(a) a private company purchases land, equal to or more than such limits in rural areas or urban areas, as may be prescribed by the appropriate Government, through private negotiations with the owner of the land in accordance with the provisions of section 46;
(b) a private company requests the appropriate Government for acquisition of a part of an area so prescribed for a public purpose:
A reading of Section 46 of the Act, 2013 which provides for rehabilitation and resettlement shows that the same would be applicable only where "specified person" is purchasing land through private negotiations for an area equal to or more than such limits, as may be notified by the appropriate Government.
69. In the present case we find from the various Government Orders placed on record, namely, the Government Order of 6th August, 2014, wherein the District Collectors have been deemed to be the appropriate Government the 'limit' of the area has been shown as 100 acres and in the Government Notification dated 22nd October, 2014 the limit has been notified by the Government to be 2500 hectares. In the present case it is not the case of the petitioners that the property in dispute purchased by the State Government is equal to or more than 100 acres or 2500 hectares, therefore, in our opinion, the provisions of Section 46 of the Act, 2013 would have no application in the present case.
70. We may also observe that the question as to whether the District Collector is the appropriate government or the Chief Executive Officer under the Act, 2018 is the appropriate government cannot be examined here in this writ petition as the sale deed is not under challenge before us.
71. We also find from a reading of the provisions of sub-sections (1), (2) and (3) of Section 2 of the Act, 2013 that the same do not apply to purchase of land directly by the Government through mutual negotiations but rather it applies only to acquisition by the appropriate Government for the public purposes as enumerated in Clause (a) to (f) of sub-section (1) and acquisition by the appropriate Government for public private partnership projects or private companies or partial purchase by the appropriate government on a request made by a private company for land equal to or more than the limits notified in the rural area or urban areas by the appropriate Government through private negotiations with the owner of the land for purposes of application of Section 46 of the Act and for rehabilitation and resettlement as contemplated in sub-section (3) of Section 2 of the Act, 2013.
72. In the present case what we find is that there is no acquisition of the property either under sub-section (1) of Section 2 or sub-section (2) of Section 2 or sub-section (3) of Section 2 of the Act. Therefore, on this ground also we are of the view that the provisions of Section 46 of the Act, 2013 would have no application as there is no acquisition here nor is there a purchase of property by the appropriate Government through mutual/private negotiations with the owner of such property which is not equal to or more than the notified limits.
73. We may also refer to the provisions of Shri Kashi Vishwanath Special Area Development Board Varanasi Act, 2018. At the outset the objects and reasons of the Act, 2018 may be extracted hereinbelow:
"An Act to provide for the establishment of Shri Kashi Vishwanath Special Area Development Board to create, formulate, implement, regulate and maintain the Special Area under its jurisdiction for developing and maintaining the cultural, spiritual, mythological and architectural aesthetics in such area to promote tourism in consonance with the rich cultural heritage thereof It is hereby enacted in the Sixty-ninth Year of the Republic of India as follows-
Prefatory Note:Statement of Objects and Reasons. - Sri Kashi Vishwanath Temple situated at the bank of holy river Ganga in District Varanasi is one of the important jyotirlinga of the twelve jyotirlingas of Lord Shiva due to which it is of international repute. It is also a special place of Uttar Pradesh State in the perspective of tourism. In view of the Mythological, Religious, Spiritual, Cultural significance of the areas related to it, extension or beautification of the accessible paths from Ganga river to the Temple Complex and related major routes and existing ancient temples to their lives intact, develop their reinvigorated strengthening ambitious scheme has been prepared by the State Government with the help of the Central Government. In order to maintain the continuous existence of the pilgrims, devotees, tourists in the available area marked in the map, after completing the development of infrastructure for quality and timely completion, it has been decided to make a law to provide for the establishment of Shri Kashi Vishwanath Special Area Development Board Varanasi to create, formulate, implement, regulate and maintain the Special Area under its jurisdiction for developing and maintaining the cultural, spiritual, mythological and architectural aesthetics in such area to promote tourism in consonance with the rich cultural heritage thereof.
Since the State Legislature was not in session and immediate legislative action was necessary to implement the aforesaid decision the Shri Kashi Vishwanath Special Area Development Board Varanasi Ordinance, 2018 (U.P. Ordinance 8, 2018) was promulgated by Governor on June 29, 2018."
74. The Ordinance of 2018 has now been replaced by the Act, 2018 with the objects and reasons as extracted.
75. Section 31 of the Act, 2018 conveys an overriding effect over all State laws to the contrary and provides that the provisions of this Act shall apply notwithstanding anything to the contrary contained in any law of the State of Uttar Pradesh for the time being in force and therefore we are of the view that even if the petitioners are able to establish that they are tenants of Carmichael Library Association, the Uttar Pradesh Rent Control Act, 1972 will not have any application in the present case in view of Section 31 of the Act, 2018.
76. Further the Act of 2018 provides for rehabilitation plan in Section 2 sub-section (1) clause (i) to be prepared by the Board according to the approved rules and regulations, in order to settle and rehabilitate residents, owners, occupants who are to be relocated for implementation of development plan for the Special Development Area, as prepared by the Board and approved by the State Government. There is no dispute between the parties that the property in question situated in Gyanvapi, Garhwaasi Tola has been notified under the Special Development Area under Clause (j) of sub-section (1) of Section 2 of the Act, 2018.
77. Sub-section 3 (i) of Section 6 of the Act, 2018 confers power upon the Board subject to the directions given by the State Government to acquire any building or land through mutual negotiations, purchase, donation, transfer, lease, rent or otherwise. It also provides that the Board may also acquire any land, buildings in accordance with the provisions of law for the time being in force and shall publish a public notice in the local newspaper/gazette inviting persons who may have any claim or interest in such property, to file their claim. The word "also acquire" and particularly the word "also" clarifies the two modes under which the State Government may come into possession of land under the Act, 2018. In the first instance the Board with the approval of the State Government may acquire any building or land through mutual negotiations or purchase, donation, transfer, lease, rent or otherwise. In the second instance the Board with the approval of the State Government may acquire any land/building in accordance with the provisions of law for the time being in force for which it will have to publish a public notice in the local newspaper/gazette inviting persons who may have any claim or interest in such property.
78. The resettlement plan contemplated in sub-section (3) (i) of Section 6 of the Act, 2018 is also subject to the plan prepared by the Board as per the approved rules and regulations. There is nothing in the Scheme of the Act, 2018 to show that rehabilitation and resettlement of the owner or occupier of the land or building being purchased by the Government through mutual negotiations is mandatory in order to validate such purchase.
79. The language of sub-section (5) of Section 46 of the Act, 2013 does not find place in the Act, 2018 and therefore, we are of the view that rehabilitation and resettlement of the owner or occupier or tenant, as the case may be, of the land or building being purchased by the Board by private mutual negotiations is not mandatory and such purchase by the Board through mutual negotiations of any property or land from its owner and occupier in furtherance of the aims and objects of the Act, 2018 would be otherwise valid.
80. We may however hasten to observe that the overriding effect of Section 31 of the Act, 2018 is only with regard to anything to the contrary contained in any law of the State of Uttar Pradesh for the time being in force as the language of Section 31 itself categorically states, and will have no application to Central Laws. Section 31 of the Act, 2018 reads as under:-
"31. Overriding effect.- The provisions of this Act shall apply notwithstanding anything to the contrary contained in any law of the State of Uttar Pradesh for the time being in force."
81. The Act of 2018 speaks of acquisition of land, buildings in accordance with the provisions of law for the time being in force. The Act itself does not provide a mechanism for acquisition. The only provisions for acquisition of land, buildings are contained in the Act of 2013, therefore, we hold that acquisition of land and buildings as contemplated in Section 6, sub-section (3) (i) of the Act, 2018 will be only as per the procedure laid down in the 2013 Act will all its caveats and riders and the provisions of Section 31 of the Act, 2018 will have no overriding effect over the Act of 2013.
82. This is moreso also because the Act of 2013 being a Central Act will have an overriding effect over the Act of 2018, a State Law, by virtue of the provisions of Article 254 of the Constitution of India to the extent of any contradictions between the two laws. We therefore reject the submission of the learned Additional Advocate General to the Contrary.
83. So far as the judgment of the Supreme Court in AIR 2017 SC 2450 (Government of NCT of Delhi Vs. Manav Dharam Trust and Another) is concerned wherein the Supreme Court has held that all persons claiming an interest in compensation to be paid on account of the acquisition of land under the Act, 2013 are "persons interested" and any person whose primary source of livelihood is likely to be adversely affected is also a "person interested", the definition of "affected family" as defined under Section 3, clause (c) sub-clause (ii) of the Act, 2013 indicates that even a family residing in the lands sought to be acquired, be it an owner or not, is an affected family, and if a family or a person is affected, necessarily, he has a right to approach the Court to protect his interests the same has no application in the present case as that was a case where acquisition proceedings had been initiated and dispute was only on the question of locus standi where it appears that the land had been transferred and the case of the Government of NCT of Delhi (supra), in our opinion, has no application to the facts of the present case as in the present case there is no 'acquisition' either under the Land Acquisition Act, 1894 or under the Act, 2013 and we have already held that the Act, 2013 has no application in the present case. The present case is one of purchase of property under the Act, 2018 and therefore the judgement of the Supreme Court in Government of NCT of Delhi Vs. Manav Dharam Trust and Another has no application in the present case.
84. In our opinion, the judgment in the case of Kapil Narain Pandey (supra) is of no assistance to the petitioners.
85. We may also advert to our findings with regard to the factual position as to whether the petitioners are the tenants of the Carmichael Library Association, respondent no.10. We have already recorded a finding that the receipts or the photographs which have been filed with the writ petition are either vague or raise serious factual disputes with regard to the identity of the shop in the first instance as to whether it is shop no.17 or 18 or 24, and also as to whether Dheeraj Kumar and Yantraleshwar Gupta are one and the same person since none of the receipts are in the name of Yantraleshwar Gupta but are in the name of Dheeraj Kumar. These are all disputed questions of fact.
86. Since we have already held that Act, 2013 has no application to the purchase of the property in question by the appropriate Government/Board from the Carmichael Library Association, respondent no.10 under the Act, 2013 the provisions of Section 63 of the Act, 2013 would therefore be no bar to proceedings in a civil court the petitioners may avail the remedy before the appropriate civil court in respect of their grievances.
The writ petition lacks merit and is accordingly dismissed.
Interim order stands vacated.
87. In Writ Petition No.12768 of 2019 (Rajendra Maheshwari Vs. State of U.P. and Others) it is stated that the petitioner is the tenant of Carmichael Library Association from the time of his grand father one Devendra Chandra on the ground floor for last more than 90 years and after the death of Devendra Chandra, Virendra Chandra, father of the petitioner became the tenant and after his death tenancy devolved on his son Rajendra Maheshwari, the petitioner herein and therefore he is a statutory tenant. It is stated that the petitioner is carrying on the business of selling Auyrvedik Medicines, Books, Mobile Recharge, Mala, Phool and Prasad etc.
88. Perusal of photograph filed at page 22 of the writ petition shows a faded banner at the bottom of which is written 'Vidhya Bhaskar Aushdhalay, Gyanvapi-Varanasi'. No shop number is mentioned nor address of the shop is mentioned. The map filed at page 24 of the writ petition also only shows several numbers which are stated to be shops in the Carmichael Library Association but which is the shop of the petitioner is not clear. Similarly, the receipt filed at page 26 which is in the name of Dhirendra Chandra, Virendra Chandra is dated 11.12.2018 and does not mention the shop number. We also fail to understand that if Virendra Chandra, father of the petitioner has died how could the receipt be issued in his name. Thereafter there is another receipt at page 27 which mentions the shop number as '23' which is in the name of Dhirendra Chandra, Virendra Chandra. The electricity receipt at page 28 is in the name of Devendra Chandra and does not show any address. Similarly the electricity receipt at page 29 of the writ petition is also in the name of Devendra Chandra and is dated 26.12.2018 and does not show any shop number or any address except 'VIDHYA BHASKAR BOOKD, VARANSI'. The other receipts filed at pages 30 and 31 of the writ petition also do not contain any address. Likewise the documents filed at page 31, 32 and 33 of the writ petition are receipt in the name of 'Vidhya Bhaskar Book Depot' but does not disclose the shop number or the address.
Thus, on the basis of these documents it is not known as to whether the shop is in the name of Rajendra Maheshwari, the petitioner or in the name of Devendra Chandra or Virendra Chandra and such disputed questions of fact cannot be decided in the writ jurisdiction.
89. Accordingly, the Writ Petition No.12768 of 2019 is also dismissed.
In Writ Petition No.12817 of 2019 (Sohrab Ahmad Vs. State of U.P. and Others) it is stated that the petitioner is the tenant of Carmichael Library Association from the time of his grand father one Mohd Shafi on the ground floor for last more than 60 years and after the death of Mohd Shafi, Abdul Rajjak, father of the petitioner became the tenant and after his death tenancy devolved on his son Sohrab Ahmad, the petitioner herein and therefore, he is the statutory tenant. It is stated that the petitioner is carrying on the business of Cosmetics, Artificial Jwellery etc. in the name and style "Eram Jwellery Corner'.
90. The photograph filed at page 22 to the writ petition only shows the name of the petitioner as 'SOHRAB AHAMAD' with no address; it does not even mention Gyanvapi or Varanasi. The map filed at page 24 of the writ petition also only shows several numbers which are stated to be shops in the Carmichael Library Association but which is the shop of the petitioner is not clear. The G.S.T. Registration Number filed at page 26 of the writ petition also does not disclose any address as to where the shop is located. Pan Card of the petitioner filed at page 27 of the writ petition also does not disclose the address. The receipts at page 28 and 29 of the writ petition do not disclose any shop number and only mention, Sohrab Ahmad, Varanasi.
Thus, on the basis of these documents the address of the shop is not known and therefore this factual aspect of the matter cannot be examined in writ jurisdiction.
Accordingly, the Writ Petition No.12817 of 2019 is also dismissed.
91. In Writ Petition No.12821 of 2019 (Durga Prasad Baranwal and Another Vs. State of U.P. and Others) the petitioners are claiming to be the tenants in one shop on the ground floor in Carmichael Library Association and are carrying on the business of Mala, Phool, Prasad and Pujan Samagri etc in the name and style "Bisnath Petha Bhandra'.
92. The photograph filed at page 22 to the writ petition does not disclose the name and address of the shop. The map filed at page 24 of the writ petition also only shows several numbers which are stated to be shops in the Carmichael Library Association but which is the shop of the petitioner is not clear. The documents filed at pages 26 to 28 which are stated to be the rent receipt do not mention the shop number or address.
Thus, on the basis of these documents when the name and address of the shop is not known these factual aspects of the matter cannot be examined in writ jurisdiction.
Accordingly, the Writ Petition No.12821 of 2019 is also dismissed.
93. In Writ Petition No.12837 of 2019 (Ashish Agrawal and Another Vs. State of U.P. and Others) it is stated that the petitioners are the tenants of Carmichael Library Association from the time of his grand father one Ram Krishna Ke Das on the ground floor for last more than 80 years and after the death of Ram Krishna Ke Das, Govind Ke Das father of the petitioner no.1 became the tenant and after his death tenancy devolved on his son Ashish Agrawal, the petitioner no.1 and his mother, Smt. Nirmala Agrawal and therefore they are the statutory tenants. It is stated that the petitioners are carrying on the business of selling Cosmetics Items, Gota-Jari, Ias, Mala, Phool and Prasad etc. in the name and style of 'Ram Krishan Ke Das'.
94. The photograph filed at page 22 to the writ petition does not disclose the shop number or that it is situated in the Carmichael Library Association building. The map filed at page 24 of the writ petition also only shows several numbers which are stated to be shops in the Carmichael Library Association but which is the shop of the petitioner is not clear. The electricity bill filed at page 26 does not disclose the shop number. The G.S.T. Registration Certificate filed at page 27 of the writ petition shows the name of the partner as Ashish Agrawal, proprietors C.K.54/29, Rajadarwaja, Varanasi as well as C.K. 36/8 but does not disclose the shop number. Similarly, the rent receipts filed at page 28 to 32 do not disclose any shop number.
Thus, on the basis of these documents when the shop number and address of the shop is not known these factual aspects of the matter cannot be examined in writ jurisdiction Accordingly, the Writ Petition No.12837 of 2019 is also dismissed.
95. In Writ Petition No.12876 of 2019 (Santosh Kumar Chaurasia and Others Vs. State of U.P. and Others) it is stated that the petitioners are the tenants of Carmichael Library Association from the time of their father Maniram Chaurasia on the ground floor and after the death of Maniram Chaurasia the tenancy devolved on his sons Santosh Chaurasia, Saurabh Chaurasia, Vikas Chaurasia and Ashwani Chaurasia, the petitioners herein and therefore they are the statutory tenants. It is stated that the petitioners are carrying on the business of selling Mala, Phool, Prasad and Pujan Samagri etc. in the name and style of 'Santosh Mala Bhandra'.
96. The photograph filed at page 22 to the writ petition does not disclose the name of the shop or address of the shop. The map filed at page 24 of the writ petition also only shows several numbers which are stated to be shops in the Carmichael Library Association but which is the shop of the petitioner is not clear. The rent receipts filed at pages 26 to 33 also do not disclose any shop number.
Thus, on the basis of these documents when the shop number and address of the shop is not known these factual aspects of the matter cannot be examined in writ jurisdiction.
Accordingly, the Writ Petition No.12876 of 2019 is also dismissed.
97. In Writ Petition No.12877 of 2019 (Ishwar Chandra Giri and another Vs. State of U.P. and Others) the petitioners are claiming to be the tenants of the shop engaged in the business of Bangles, Cosmetics, Mala, Phool and Prasad etc. in the name and style of 'Kashi Beauty Collection'.
98. The photograph filed at page 22 to the writ petition does not disclose the shop number or address. The map filed at page 24 of the writ petition also only shows several numbers which are stated to be shops in the Carmichael Library Association but which is the shop of the petitioner is not clear. The documents filed at pages 26 to 30 also do not disclose the shop number.
Thus, on the basis of these documents when the shop number and address of the shop is not known these factual aspects of the matter cannot be examined in writ jurisdiction.
Accordingly, the Writ Petition No.12877 of 2019 is also dismissed.
Order Date: 22nd May, 2019 N Tiwari