Allahabad High Court
Santram vs The State Of ... on 24 July, 2019
Bench: Pankaj Kumar Jaiswal, Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 1 Case :- LAND ACQUISITION No. - 9 of 2014 Petitioner :- Santram Respondent :- The State Of U.P.Throu.Prin.Secy.Housing Deptt.Lko.& Ors. Counsel for Petitioner :- Mahesh Kumar Sharma Counsel for Respondent :- C.S.C.,Ratnesh Chandra,Sampurnanand Shukla Hon'ble Pankaj Kumar Jaiswal,J.
Hon'ble Jaspreet Singh,J.
Heard Sri Mahesh Kumar Sharma, learned counsel for the petitioner. Sri Anand Singh, learned Standing Counsel for respondent no. 1 and 3. Sri Sampurnanand Shukla, learned counsel for the respondent no. 2.
By this petition, the petitioner is praying for issuance of a writ of mandamus directing the respondents to re-determine the compensation in terms of the judgment and order passed in reference of Misc. Case No. 36 of 1991 (Shanker Vs. State of U.P.) decided on 25.02.2009.
That brief facts of the case are that the land of the petitioner was acquired vide Notification dated 17.03.1979 for Housing Scheme under Section 28 of U.P. Awas Evam Vikas Parishad Act, 1965 on 17.09.1979. The amount of compensation awarded by the learned Authority was received by the petitioner. Thereafter by the same notification land of one Shanker situated in the Village Ismailgang, Tehsil and District Lucknow was acquired and against the said award he filed an application under Section 18 of the Land Acquisition Act vide Reference Misc. Case No. 36 of 1990 to the Presiding Officer, Tribunal, U.P. Awas Evam Vikas Parishad, Lucknow. The said reference was decided on 25.02.2009 and the award passed by learned Authority was modified. The petitioner thereafter filed an application under Section 28-A of the Land Acquisition Act, 1894 for determining the compensation at the same rate which was determined in the case of Shanker (supra) vide order dated 25.02.2009 as his application was not decided and, therefore, the present writ petition was filed for issuance of an appropriate order or deciding the appropriate application and the enhancement of compensation in terms of the judgment and order passed in reference of Misc. Case No. 36 of 1990 (Shanker Vs. State of U.P.) decided on 25.02.2009. The question whether the amended provisions of Land Acquisition Act, 1894 will apply to the Adhiniyam has been settled by the Hon'ble Supreme Court in the matter of U.P. Awas Evam Vikas Parishad Vs. Jainul Islam reported in 1998 (2) SCC 467. Thereafter the question was considered by a Division Bench of the Allahabad High Court in the case of U.P. Avas Evam Vikas Parishad Vs. ADM (Land Acquisition) and Others reported in 2010 (28) LCD 47. The Division Bench after appreciating the judgment of the Hon'ble Supreme Court in the case of Jainul Islam and Another (Supra) has held in para 22 that Section 28-A of that Act will apply in the case of Land Acquisitions made under the U.P. Awas Evam Vikas Parishad Adhiniyam.
Against the aforesaid decision number of special petitions were filed, wherein on 01.04.2010 stay order was passed but later on all those special petitions have been dismissed vide the order dated 05.05.2016 along with Civil Appeal No. 5108 of 2010 and other connected petitions. In the year 2015 also, the similar controversy was raised before the Division Bench in the case of U.P. Awas and Vikas Parishad Vs. State of U.P. and Others reported in (2015) 7 ADJ 58. The Division Bench after examining the issue has held that an application under Section 28-A is maintainable and remitted the matter to the State Authorities to lead the evidence to determine whether the said land involved in the application filed under Section 28-A of the Land Acquisition Act and similarly situated land. For convenience of the Court, relevant para 22 to 25 is reproduced hereinbelow.
22. Learned Senior Counsel appearing for respondent No. 3 does not dispute this petition but has submitted that the Parishad on its own could have led evidence before the Special Land Acquisition Officer. Though it is correct from a perusal of the impugned order passed by the Special Land Acquisition that the Parishad had contended that the provisions of Section 28-A of the Acquisition Act would not be applicable, but for the factual aspect to be determined a copy of the application filed by the father of respondent no. 3 was required to be supplied to the Parishad by the Special Land Acquisition Officer. No finding has also been recorded by the Special Land Acquisition Officer that the land regarding which enhancement of compensation was claimed in the application filed under Section 28-A of the Acquisition Act was similarly situated as the land covered by the earlier award of the Reference Court.
23. It would, therefore, be appropriate for the Court to remit the matter to the Special Land Acquisition Officer to enable the parties to lead evidence so that the Special Land Acquisition Officer can determine whether the land involved in the application filed under Section 28-A of the Acquisition Act is similarly situated to the land involved in the award of the reference Court. The matter is, accordingly, remitted and such an exercise shall be conducted by the Special Land Acquisition Officer expeditiously and not later that three months from the date a certified copy of this order is filed by either of the parties before the Special Land Acquisition Officer.
24. It is made clear that this Court has not accepted the contention of the learned counsel of the Parishad that the provisions of Section 28-A of the Acquisition Act would not be applicable. The finding recorded in the impugned order dated 4 March, 2015 that the provisions of Section 28-A of the Land Acquisition Act would be applicable, therefore, maintained.
25. The impugned order dated 04 March, 2015 passed by the Special Land Acquisition Officer (Avas), Kanpur Nagar is set aside only to the extent indicated above and the writ petition is, accordingly, allowed to that extent only.
On due consideration of the aforesaid, we direct the respondent no. 3 to decide the application filed by the petitioner on 18.05.2009, if the same is still pending on merits in terms of the order passed in the case of U.P. Awas Evam Vikas Parishad Vs. State of U.P. and Others (Supra). As the same is pending since 2009, an endevour shall be made to dispose it of within a period of 6 months from the date of filing of a certified copy of this order.
[Jaspreet Singh, J.] [Pankaj Kumar Jaiswal, J.] Order Date :- 24.7.2019 Asheesh