Allahabad High Court
Balram Ji Mishra And 21 Others vs State Of U.P. And 2 Others on 15 April, 2024
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Neutral Citation No. - 2024:AHC:65812-DB Court No. - 40 Case :- WRIT - C No. - 43445 of 2018 Petitioner :- Balram Ji Mishra And 21 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Pankaj Dubey,Prem Sagar Dubey,R S Dubey,Savita Dubey Counsel for Respondent :- C.S.C.,K.R. Singh Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Anish Kumar Gupta,J.
1. Heard Shri Pankaj Dubey, learned counsel for the petitioners; Shri Pankaj Rai, learned Addl. Chief Standing Counsel, Shri Suresh Singh, learned Addl. Chief Standing Counsel, Shri Devesh Vikram, learned Addl. Chief Standing Counsel for State respondents and Shri K.R. Singh, learned counsel for Gorakhpur Development Authority1.
2. The impleadment application is allowed. Let the necessary impleadment be carried out forthwith.
3. Present writ petition has been preferred for a direction to respondents to release the acquired land on which the houses of petitioners are situated bearing Khasra Nos.883, 732, 644, 726, 598, 601, 872, 736, 588, 696, 695, 587, 565 and 576 of Revenue Village Manbela, Pargana Haveli, Tehsil Sadar, Distt. Gorakhpur under Section 17 of the U.P. Urban Planning and Development Act, 19732 and for a further direction to respondents to decide pending representations of petitioners within stipulated period.
4. This much is averred in the writ petition that the petitioners are the owners of land in question. The State Government had taken recourse under the old Land Acquisition Act, 18943 for acquiring the land and consequently issued a notification under Section 4 (1) read with Section 17 (1) of the Act, 1894 on 22.11.2003 relating to Village Manbela, Pargana Haveli, Tehsil Sadar, Distt. Gorakhpur for 'Planned Development' (residential colony) through GDA. By this notification an area of 77.539 hect. was proposed to be acquired of the Revenue Village Manbela, Pargana Haveli, Tehsil Sadar, Distt. Gorakhpur. The aforesaid notification was followed by Notification of declaration under Section 6 read with Section 17 (4) of the Act, 1894 on 28.12.2004. The Special Land Acquisition Officer, Gorakhpur declared the award on 9.2.2009. It is alleged that the land of the petitioners are mentioned in the notification but neither the petitioners nor their predecessors had been paid entire compensation by the respondents till today nor possession was taken. The petitioners' house and other constructions were situated over the land in question prior to notification under Section 4 (1) read with Section 17 (1) of the Act, 1894 dated 22.11.2003 but the authority concerned had not exempted the house/ land of petitioners from the acquisition proceedings. This much is also alleged that the acquisition of the land in question was done in the year 2004 but for last more than 20 years the same are lying unused. Since the houses of the petitioners on the acquired land were situated prior to the notification under Section 4 (1) read with Section 17 (1) dated 22.11.2003, therefore, the petitioners sent an application on 9/13.2.2018 seeking benefit of the provisions of Section 17 of the Act, 1973 but till date nothing has been done on the application of the petitioners.
5. Learned counsel for the petitioners, in support of his submissions, has placed reliance on Section 17 of the Act, 1973, which for ready reference is quoted as under:-
"17. Compulsory acquisition of land.
(1) If in the opinion of the State Government any land is required for the purpose of development or for any other purpose, under this Act the State Government may acquire such land under the Provisions of the Land Acquisition Act, 1894:
Provided that any person from whom any land is so acquired may after the expiration of a period of five years from the date of such acquisition apply to the State Government for restoration of that land to him on the ground that the land has not been utilized within the period for the purpose for which it was acquired, and if the State Government is satisfied to that effect it shall order restoration of the land to him on re-payment of the charges which were incurred in connection with the acquisition together with interest at the rate of twelve percent per annum and such development charges as if any may have been incurred after acquisition.
(2) Where any land has been acquired by the State Government, that Government may, after it has taken possession of the land, transfer the land to the Authority or any local authority for the purpose for which the land has been acquired on payment by Authority or the local Authority of the compensation awarded under that Act and of the charges incurred by the Government in connection with the acquisition."
6. Placing reliance on the proviso of Section 17 (1) of the Act, 1973, learned counsel for the petitioners submits that since the acquired land is not utilized as yet, the land in question may be restored to the petitioners on payment of usual charges. It is contended that till today the petitioners are in possession over the land in question and the same has not been utilized by the respondents. The notification was published under urgency clause but after expiry of 20 years nothing has been done on the acquired land relating to the petitioners, which shows that at the time of acquisition, there was no urgency and as such the land of the petitioners must be released.
7. On the other hand, learned counsel for the respondents have vehemently opposed the writ petition. This much is contended on behalf of the respondents that the notification under Section 4 (1)/17 of Act, 1894 was issued on 22.11.2003 for acquisition of 77.539 hects. land of Revenue Village Manbela. The notification under Section 6 (1)/ 17 of the aforesaid land was issued on 28.12.2004. In the aforesaid acquisition, apart from other land, the land of the petitioners were also acquired. Since the provisions of Section 17 were invoked, therefore, 80% of the proposed compensation was distributed to the tenure holders. Thereafter, the possession of the land was given to GDA gradually on 29.12.2005, 28.9.2006, 22.2.2007 and 16.6.2007. In the aforesaid manner, the possession of 72.642 hects. of land was given to GDA after deposit of 80% of proposed compensation. Thereafter, the award was made on 9.2.2009. After the award, the rest of the compensation was also deposited with the Special Land Acquisition Officer. The notification of acquisition was challenged in this Court by filing a writ petition but the same was dismissed on 6.5.2005 and the acquisition was upheld. The judgment of this Court upholding the acquisition was challenged before Hon'ble the Apex Court by way of filing Civil Appeal No.2523 of 2008 (Anand Singh & Ors. v. State of U.P. & Ors.) but the same was also dismissed on 28.7.2010.
8. It is contended by learned Addl. Chief Standing Counsel that while deciding the writ petition on 6.5.2005, the aggrieved persons were given the remedy of approaching the State Government under Section 48 of Act, 1894 for exemption from the acquisition. After decision upon the same, a supplementary award was made on 28.6.2011 and, thereafter, another supplementary award was made on 22.8.2012. After the aforesaid supplementary award, the possession of remaining land was also given to the GDA. In the aforesaid manner, the possession upon 75.518 hects. has already been given to GDA and the land has vested in the State Government free from all encumbrances, therefore, there is no occasion by any one to make encroachment upon the acquired land. The name of GDA has also been entered in the revenue records. If any person is aggrieved by the rate of compensation, he may take the remedy of reference under Section 18 of the Act, 1894.
9. It is further contended that at the time of preliminary notification under Section 4 of the Act, 1894 on 22.11.2003 the land was recorded as an agricultural land in which the paddy and wheat crop were being harvested. There was no construction at all on the land, even there was no declaration as abadi under Section 143 of UPZA & LR Act. The land in question was already within the limits of GDA. In the meantime, after the notification certain persons made unauthorized construction without having any sanctioned map and without having any permission from any authority for raising construction upon the agricultural land. After the finalization of proceedings under the Act, 1894, no person can claim his right upon the acquired land. Upon the acquired land a housing scheme namely "Rapti Nagar Vistar Awasiya Yojna" has been launched by the GDA for residential purposes upon which the plots have been earmarked and the flats have also been constructed. Under the pioneer scheme known as "Pradhanmantri Avas Yojna", 1500 houses were constructed upon the acquired land, which provides shelter to the weaker section of the society. Apart from above, the link roads have been constructed for connecting the proposed site to the main road. Further, different park, nala and sewer is also under construction. Most of the acquired land has been developed. Only in some pockets of the land, some persons including the petitioners have made encroachment upon the land for which notices under Section 26 of Act, 1973 has been issued for removal of encroachment. Feeling aggrieved by the notices, the petitioners have filed the present writ petition, even though the petitioners were free to reply the said notices but instead of responding the notices, they had preferred the present proceeding, which is liable to be rejected with exemplary cost.
10. It is next submitted that from the perusal of aforesaid judgment passed by Hon'ble the Apex Court, a part of which is even quoted in the writ petition, this much is reflected that till 2010 more than 60% of development work was completed and more than Rs.5 crores were spent for development of the land upto the year 2010, when the said judgment was delivered by Hon'ble the Apex Court. Thus, the claim of the petitioners in the writ petition that no development has taken place on the land is unsustainable in view of the aforesaid judgment. Since 2005 to 2010 different writ petitions were filed challenging the notification but the same were dismissed. The appeal filed against the same before Hon'ble the Apex Court had also been dismissed and the notification has been upheld. It is contended that the petitioners are trying to legalize their encroachment by means of present writ petition. Under the present facts and circumstances, no interference is required under Art.226 of the Constitution of India and as such the writ petition is liable to be dismissed.
11. Heard rival submissions and perused the record.
12. This much is clear from the record that the notification under Section 4 (1)/17 (1) of Act, 1894 was issued on 22.11.2003 for acquisition of 77.539 hects. land of Revenue Village Manbela. The notification under Section 6 (1)/ 17 (4) of the Act, 1894 of the aforesaid land was issued on 28.12.2004. In the aforesaid acquisition, apart from other land, the land which the petitioners claimed their land, the same was also acquired. Since the provisions of Section 17 (1) and 17 (4) of the Act, 1894 were invoked, therefore, 80% of the proposed compensation was distributed to the tenure holders. Thereafter, the possession of the land was taken over by the competent authority and then the land was handed over to GDA on various dates i.e. on 29.12.2005, 28.9.2006, 22.2.2007 and 16.6.2007. In the aforesaid manner, the possession of 72.642 hects. of land was given to GDA after deposit of 80% of proposed compensation. Thereafter, the award was made on 9.2.2009. After the award, the rest of the compensation was also deposited with the Special Land Acquisition Officer. The notification of acquisition was challenged in this Court by filing a writ petition but the same was dismissed on 6.5.2005 and the acquisition was upheld. The judgment of this Court upholding the acquisition was challenged before Hon'ble the Apex Court by way of filing Civil Appeal No.2523 of 2008 (Anand Singh & Ors. v. State of U.P. & Ors.) but the same was also dismissed on 28.7.2010.
13. In the present matter, so far as the claim of the petitioners under Section 48 of the Act, 1894 is concerned, the same is not available to them. It is well settled law that the land can only be exempted under Section 48 of the Act, 1894 on the condition that the possession of the land has not been taken. In the present matter, in pursuance to the aforementioned notification, possession had been taken way back in the year 2005, 2006 and 2007, and as such the vesting is absolute, free from all encumbrances and that cannot be divested.
14. The Act, 1894 does not permit the State Government to release or exempt any land once the land stand vested with the State Government i.e. after issuance of the notification under Sections 4 and 6 of the Act, 1894, notice to person interested under Section 9 of the Act, 1894 and possession being taken as per the provisions of the Act, 1894, thereafter, an award of Collector under Section 12 of the Act, 1894.
15. This much is also reflected that the petitioners have approached this Court with considerable delay without there being any proper explanation that too without any serious challenge to the possession under the Act, 1894. After taking possession by the competent authority, thereafter, the possession of the land was also given to GDA on different dates i.e. 29.12.2005, 28.9.2006, 22.2.2007 and 16.6.2007. The petitioners had approached this Court with considerable delay in the year 2018, moreover, they had never pressed any application well within time for the release of the land under Section 48 of the old Act, 1894, as they were aware that the acquisition was already approved by the Division Bench and affirmed by the Apex Court.
16. So far as the claim of the petitioners on the basis of proviso to Section 17 (1) of the Act, 1973 is concerned, the same is also not available to the petitioners. The proviso to Section 17 (1) stipulates that any person from whom any land is so acquired may after the expiration of a period of five years from the date of such acquisition apply to the State Government for restoration of that land to him on the ground that the land has not been utilized within the period for the purpose for which it was acquired, and if the State Government is satisfied to that effect it shall order restoration of the land to him on re-payment of the charges which were incurred in connection with the acquisition together with interest at the rate of twelve percent per annum and such development charges as if any may have been incurred after acquisition.
17. From the perusal of record as well as from perusal of the judgment of Hon'ble the Apex Court, discussed above, it is apparent that till 2010 more than 60% of development work was completed and more than Rs.5 crores were spent for development of the land upto the year 2010. Thus, the claim of the petitioners in the writ petition that no development has taken place on the land is unsustainable in view of the record as well as in view of aforesaid judgment. Even the GDA had also issued various notices to the petitioners under Section 26 A (4) of the Act, 1973, which are appended collectively along with the counter affidavit filed by the GDA.
18. The acquisition of the land was necessary for planned development and the same was for public purpose. The consequent increase in the population was not accompanied by an adequate expansion of housing facilities. The object of the Act, 1973 is to stop haphazard and unplanned growth of houses in different areas. As the land was not available for suitable development, the acquisition took place. The Authority under the Act, 1973 found it necessary to take effective steps to check the haphazard growth of houses and to prevent substandard construction. In the case of an acquisition of a large area of land comprising several plots belonging to different persons, the specification of the purpose can only be with reference to the acquisition of the whole area. Unlike in the case of an acquisition of a small area, it might be practically difficult to specify each and every public purpose for which the land was needed. Under the Act, 1973 the Authority is to undertake and carry out the development of land, which is in its territorial jurisdiction. After the commencement of the Act, 1973, no development of land shall be undertaken or carried out in any area by any person unless the person has valid permission under Section 14/15 of the Act, 1973, that too has to be obtained in writing from the Authority in accordance with the provisions of the Act, 1973. After coming into operation of any of the plans, as per the Act, 1973, in any area, no development shall be undertaken or carried out in that area unless such development is also in accordance with such plans.
19. The relief under Section 17 of the Act, 1973 is also misconceived in view of the law laid down by Hon'ble the Apex Court in State of U.P. v. Smt. Pista Devi & Ors.4, where large tracts of land was acquired for public purpose. Reliance has also been placed on the judgment of Hon'ble the Apex Court in Aflatoon & Ors. v. Lt. Governor of Delhi & Ors.5, the relevant paragraphs of which is reproduced as under:-
"..........19. It was argued that there could be no planned development of Delhi otherwise than in accordance with the provisions of the Delhi Development Act and, therefore, the notification under Section 4 of the Act should have been issued by the Central Government in view of Section 15 of that Act and not by the Chief Commissioner of Delhi.
20. Section 12 of the Delhi Development Act, 1957 provides:
12(1) As soon as may be after the commencement of this Act, the Central Government may, by notification in the official Gazette, declare any are a in Delhi to be a development area for the purposes of this Act:
Provided that no such declaration shall be made unless a proposal for such declaration has been referred by the Central Government to the Authority and the Municipal Corporation of Delhi for expressing their views thereon within thirty days from the date of the receipt of the reference or within such further period as the Central Government may allow and the period so specified or allowed has expired.
(2) Save as otherwise provided in this Act, the Authority shall not undertake or carry out any development of land in any area which is not a development area.
(3) After the commencement of this Act no development of land shall be undertaken or carried out in any area by any person or body (including a department of Government) unless,--
(i) where that area is a development area, permission for such development has been obtained in writing from the Authority in accordance with the provisions of this Act;
(ii) where that area is an area other than a development area, approval of, or sanction for, such development has been obtained in writing from the local authority concerned or any officer, or authority thereof empowered or authorised in this behalf, in accordance with the provisions made by or under the law governing such authority or until such provisions have been made, in accordance with the provisions of the regulations relating to the grant of permission for development made under the Delhi (Control of Building Operations) Act, 1955, and in force immediately before the commencement of this Act.
Provided that the local authority concerned may subject to the provisions of Section 53A amend those regulations in their application to such area.
(4) After the coming into operation of any of the plans in any area no development shall be undertaken or carried out in that area unless such development is also in accordance with such plans.
(5) Notwithstanding anything contained in Sub-sections (3) and (4) development of any land begun by any department of Government or any local authority before the commencement of this Act may be completed by that department or local authority without compliance with the requirements of those sub-sections.
21. Section 15 of the Delhi Development Act, 1957 states:
15(1) If in the opinion of the Central Government, any land is required for the purpose of development, or for any other purpose, under this Act, the Central Government may acquire such land under the provisions of the Land Acquisition Act, 1894.
(2) Where any land has been acquired by the Central Government, that Government may, after it has taken possession of the land, transfer the land to the Authority or any local authority for the purpose for Which the land has been acquired on payment by the Authority or the local authority of the compensation awarded under that Act and of the charges incurred by the Government in connection with the acquisition.
22. Counsel contended that on the date when the notification under Section 4 was published, the Government had not declared any area in Delhi as a development area under Section 12(1) of the Delhi Development Act, nor was there a master plan drawn up in accordance with Section 7 of that Act and so the acquisition of the property for planned development of Delhi was illegal. Under Section 12(3) of the Delhi Development Act, no development of land can be undertaken or carried out except as provided in that clause. Section 2(d) states: "development" with its grammatical variations means the carrying out of building, engineering, mining or other, operations in, on, over or under land or the making of any material change in any building or land includes redevelopment. Section 2(e) states "development area" means any area declared to be a development area under Sub-section (1) of Section 12.
23. The planned development of Delhi had been decided upon by the Government before 1959, viz., even before the Delhi Development Act came into force. It is true that there could be no planned development of Delhi except in accordance with the provisions of Delhi Development Act after that Act came into force, but there was no inhibition in acquiring land for planned development of Delhi under the Act before the Master Plan was ready (see the decision in Patna Improvement Trust v. Smt. Lakshmi Devi and Ors. MANU/SC/0389/1962. In other words, the fact that actual development is permissible in an area other than a development area with the approval or sanction of the local authority did not preclude the Central Government from acquiring the land for planned development under the Act. Section 12 is concerned only with the planned development. It has nothing to do with acquisition of property; acquisition generally precedes development. For planned development in an area other than a development area it is only necessary to obtain the sanction or approval of the local authority as provided in Section 12(3). The Central Government could acquire any property under the Act and develop it after obtaining the approval of the local authority. We do not think it necessary to go into the question whether the power to acquire the land under Section 15 was delegated by the Central Government to the Chief Commissioner of Delhi. We have already held that the appellants and the writ petitioners cannot be allowed to challenge the validity of the notification under Section 4 on the ground of laches and acquiescence. The plea that the Chief Commissioner of Delhi had no authority to initiate the proceeding for acquisition by issuing the notification under Section 4 of the Act as Section 15 of the Delhi Development Act gives that power only to the Central Government relates primarily to the validity of the notification. Even assuming that the Chief Commissioner of Delhi was not authorized by the Central Government to issue the notification under Section 4 of the Land Acquisition Act, since the appellants and the writ petitioners are precluded by their laches and acquiescence from questioning the notification, the contention must, in any event, be negatived and we do so........."
20. So far as the claim of the petitioners for certain constructions over the acquired land is concerned, nothing is brought on record to substantiate that the petitioners had ever moved any application for sanction of map under Sections 14/15 of the Act, 1973. In absence of any material to that effect, the said claim is also unsustainable and no relief can be accorded in this regard over the acquired land.
21. It is well settled legal proposition that scope of judicial review is limited to the decision making procedure and not against the decision of the authority. The Court may review to correct errors of law or fundamental procedure requirements, which may lead to manifest injustice and can interfere with the impugned order in exceptional circumstances. The power of judicial review of the writ court is limited, but it has competence to examine as to whether there was material to form such opinion as required by law or the finding recorded by the authority concerned are perverse. It is settled law that non consideration of relevant material renders an order perverse. A finding is said to be perverse when the same is not supported by evidence brought on record or they are against the law where they suffer from vice of procedural irregularities. In view of the settled legal proposition, it emerges that land can be acquired for public purpose, the expression "public purpose" cannot be defined by giving a special definition as the same cannot be fitted in a straight jacket formula. The facts and circumstances of each case have to be examined on its own merit and to find whether the acquisition is for public purpose or not.
22. It is also relevant to quote the observation made by the Hon'ble Apex Court in the case of Ramniklal N. Bhutta vs. State of Maharashtra6 in paragraph No.10, which is given as under:-
"10.Before parting with this case, we think it necessary to make a few observations relevant to land acquisition proceedings. Our country is now launched upon an ambitious programme of all-round economic advancement to make our economy competitive in the world market. We are anxious to attract foreign direct investment to the maximum extent. We propose to compete with china economically. We wish to attain the pace of progress achieved by some of the Asian countries, referred to as "Asian tigers", e.g., South Korea, Taiwan and Singapore. It is, however, recognised on all hands that the infrastructure necessary for sustaining such a pace of progress is woefully lacking in our country. The means of transportation, power and communications are in dire need of substantial improvement, expansion and modernisation. These things very often call for acquisition of land and that too without any delay. It is, however, natural that in most of these cases, the persons affected challenge the acquisition proceedings in courts. These challenge the acquisition proceedings in courts. These challenges are generally in shape of writ petitions filed on High Courts. Invariably, stay of acquisition is asked for and in some cases, orders by way of stay or injunction are also made. Whatever may have been the practices in the past, a time has come where the courts should keep the larger public interest in mind while exercising their power or grant in stay/injunction. The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. And in the matter of land acquisition for public purposes, the interests of justice and the public purposes, the interests of justice and the public interest coalesce. They are very often one and the same. Even in civil suit, granting of injunction or other similar orders, more particularly of an interlocutory nature, is equally discretionary. The courts have to weigh the public interest vis-a-vis the private interest while exercising the power under Article 226 - indeed any of their discretionary powers. It may even be open to the High Court to direct, in case it finds finally that the acquisition was vitiated on account of non-compliance with some legal requirement that the persons interested shall also be entitled to a particular amount of damages to be awarded as a lumpsum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong; quashing the acquisition proceedings is not the only mode of redress. To wit, it is ultimately a matter of balancing the competing interests. Beyond this, it is neither possible nor advisable to say. We hope and trust that these considerations will be duly borne in mind by the courts while dealing with challenges to acquisition proceedings."
23. The Hon'ble Apex Court had considered that once land has been vested in the State whether it can be divested. In the case of V. Chandrasekaran and Anr. Vs. The Administrative Officer and Ors.7, the Hon'le Apex Court has made following observation in paragraph nos. 16, 17, 18, 21, 22, which is quoted below:-
"16. It is a settled legal proposition, that once the land is vested in the State, free from all encumbrances, it cannot be divested and proceedings under the Act would not lapse, even if an award is not made within the statutorily stipulated period. (Vide: Avadh Behari Yadav v. State of Bihar and. Ors. MANU/SC/002/1996: (1995) 6 SCC 31; U.P. Jal Nigam v. Kalra Properties (P) Ltd. (Supra); Allahabad Development Authority v. Nasiruzzaman and Ors. MANU/SC/1269/1996: (1996) 6 SCC 424, M. Ramalinga Thevar v. State of Tamil Nadu and Ors. MANU/SC/0291/2000: (2000) 4 SCC 322; and Government of Andhra Pradesh v. Syed Akbar and Ors. MANU/SC/0987/2004: AIR 2005 SC 492).
17. The said land, once acquired, cannot be restored to the tenure holders/persons-interested, even if it is not used for the purpose for which it was so acquired, or for any other purpose either. The proceedings cannot be withdrawn/abandoned under the provisions of Section 48 of the Act, or Under Section 21 of the General Clauses Act, once the possession of the land has been taken and the land vests in the State, free from all encumbrances. (Vide: State of Madhya Pradesh v. V.P. Sharma MANU/SC/0200/1966: AIR 1966 SC 1593; Lt. Governor of Himachal Pradesh and Anr. v. Shri Avinash Sharma MANU/SC/0417/1970: AIR 1970 SC 1576; Satendra Prasad Jain v. State of U.P. and Ors. MANU/SC/0392/1993 AIR 1993 SC 2517; Rajasthan Housing Board and Ors. v. Shri Kishan and Ors. MANU/SC/0466/1993: (1993) 2 SCC 84 and Dedicated Freight Corridor Corporation of India v. Subodh Singh and Ors. MANU/SC/0268/2011: (2011) 11 SCC 100).
18. The meaning of the word 'vesting', has been considered by this Court time and again. In Fruit and Vegetable Merchants Union v. The Delhi Improvement Trust MANU/SC/0082/1956: AIR 1957 SC 344, this Court held that the meaning of word 'vesting' varies as per the context of the Statute, under which the property vests. So far as the vesting Under Sections 16 and 17 of the Act is concerned, the Court held as under.-
In the cases contemplated by Sections 16 and 17, the property acquired becomes the property of Government without any condition or; limitations either as to title or possession. The legislature has made it clear that vesting of the property is not for any limited purpose or limited duration.
21. In Government of Andhra Pradesh and Anr. v. Syed Akbar (Supra), this Court considered this very issue and held that, once the land has vested in the State, it can neither be divested, by virtue of Section 48 of the Act, nor can it be reconveyed to the persons-interested/tenure holders, and that therefore, the question of restitution of possession to the tenure holder, does not arise. (See also: Pratap v. State of Rajasthan MANU/SC/1101/1996: AIR 1996 SC 1296; Chandragaudaj Ramgonda Patil v. State of Maharashtra MANU/SC/1264/1996: (1996) 6 SCC 405; State of Kerala and Ors. v. M. Bhaskaran Pillai and Anr. MANU/SC/0731/1997: AIR 1997 SC 2703; Printers (Mysore). Ltd. v. M.A. Rasheed and Ors. MANU/SC/0307/2004: (2004) 4 SCC 460; Bangalore Development Authority v. R. Hanumaiah MANU/SC/0988/2005: (2005) 12 SCC 508; and Delhi Airtech Services (P) Ltd. and Anr. v. State of U.P. and Anr. MANU/SC/0956/2011: (2011) 9 SCC 354).
22.In view of the above, the law can be crystallized to mean, that once the land is acquired and it vests in the State, free from all encumbrances, it is not the concern of the land owner, whether the land is being used for the purpose for which it was acquired or for any other purpose. He becomes persona non-grata once the land vests in the State. He has a right to only receive compensation for the same, unless the acquisition proceeding is itself challenged. The State neither has the requisite power to reconvey the land to the person-interested, nor can such person claim any right of restitution on any ground, whatsoever, unless there is some statutory amendment to this effect." [Emphasis Supplied]
24. Hon'ble the Apex Court in Swaika Properties Pvt. Ltd. & Anr. v. State of Rajasthan8, has held that the writ petition, filed after possession of the acquired land and award has become final, is liable to be dismissed on the ground of delay and laches. Similar view is also taken by the Apex Court in Municipal Corporation of Greater Bombay v. The Industrial Development and Investment Company Pvt. Ltd. & Ors.9. In the present matter, admittedly the acquisition proceedings, which were taken under the old Act, 1894, possession was taken and the acquisition was subjected to challenge in the writ petition before this Court, which was dismissed and affirmed by the Apex Court. Therefore, at this stage, scope for interference is very limited, wherein, it is not in dispute that the acquisition has attained finality. The Division Bench of this Court in Amar Singh & Ors. v. State of U.P. & Ors.10 has held that in case the acquisition is made for public purpose, the same lies within the domain and upon subjective satisfaction of the acquiring body, the Court cannot examine the correctness or proprietary of such subjective satisfaction. Even the land, which is recorded under abadi, may also be acquired. In Amar Singh (Supra) the Court has also considered the power to exempt the land from acquisition, wherein the Court can not direct the State Government to exempt any land from acquisition as that part is sole domain of the State Government and Court should not encroach into the domain of the State Government. In the present matter no such application had been pressed under Section 48 of the Act, 1894 for exempting the land from acquisition and belated attempt has been made under Section 17 of the Act, 1973. In U.P. Jal Nigam, Lucknow v. M/s Kalra Properties (P) Ltd.11, Hon'ble the Apex Court has held that in case possession had been taken, wherein urgency clause under Section 17 (2) of the Act, 1894 has been invoked, the land stood vested in government. At this belated stage, we are not inclined to adjudicate whether the petitioners were recorded tenure holder at the time of notification under Section 4 of the Act, 1894 or they are subsequent purchasers.
25. In the present matter, the tenure holders had questioned the acquisition proceedings on various grounds specially invocation of urgency clause under Section 17 (1) and 17 (4) of the Act, 1894 and the dispensation of an enquiry under Section 5A of the Act, 1894. The Division Bench of this Court had upheld the acquisition proceeding vide judgment and order dated 6.5.2005. Against the same, Civil Appeal No.2523 of 2008 (Anand Singh & Anr. v. State of U.P. & Ors.) was preferred before Hon'ble the Apex Court. Hon'ble the Apex Court had considered the 10 appeals having identical questions and dismissed the same by common judgment dated 28.7.2010 subject to the liberty reserved to the appellants for making representations under Section 48 (1) of the Act, 1894. The relevant portion of the judgment dated 28.7.2010 is reproduced as under:-
"...........29. `Eminent domain' is right or power of a sovereign State to appropriate the private property within the territorial sovereignty to public uses or purposes. It is exercise of strong arm of government to take property for public uses without owner's consent. It requires no constitutional recognition; it is an attribute of sovereignty and essential to the sovereign government. (Words and Phrases, Permanent Edition, Volume 14, 1952 (West Publishing Co.,).
30. The power of eminent domain, being inherent in the government, is exercisable in the public interest, general welfare and for public purpose. Acquisition of private property by the State in the public interest or for public purpose is nothing but an enforcement of the right of eminent domain. In India, the Act provides directly for acquisition of particular property for public purpose. Though right to property is no longer fundamental right but Article 300A of the Constitution mandates that no person shall be deprived of his property save by authority of law. That Section 5A of the Act confers a valuable right to an individual is beyond any doubt. As a matter of fact, this Court has time and again reiterated that Section 5A confers an important right in favour of a person whose land is sought to be acquired. When the government proceeds for compulsory acquisition of particular property for public purpose, the only right that the owner or the person interested in the property has, is to submit his objections within the prescribed time under Section 5A of the Act and persuade the State authorities to drop the acquisition of that particular land by setting forth the reasons such as the unsuitability of the land for the stated public purpose; the grave hardship that may be caused to him by such expropriation, availability of alternative land for achieving public purpose etc. Moreover, right conferred on the owner or person interested to file objections to the proposed acquisition is not only an important and valuable right but also makes the provision for compulsory acquisition just and in conformity with the fundamental principles of natural justice. The exceptional and extraordinary power of doing away with an enquiry under Section 5A in a case where possession of the land is required urgently or in unforeseen emergency is provided in Section 17 of the Act. Such power is not a routine power and save circumstances warranting immediate possession it should not be lightly invoked. The guideline is inbuilt in Section 17 itself for exercise of the exceptional power in dispensing with enquiry under Section 5A. Exceptional the power, the more circumspect the government must be in its exercise. The government obviously, therefore, has to apply its mind before it dispenses with enquiry under Section 5A on the aspect whether the urgency is of such a nature that justifies elimination of summary enquiry under Section 5A. A repetition of statutory phrase in the notification that the state government is satisfied that the land specified in the notification is urgently needed and provision contained in Section 5A shall not apply, though may initially raise a presumption in favour of the government that pre-requisite conditions for exercise of such power have been satisfied, but such presumption may be displaced by the circumstances themselves having no reasonable nexus with the purpose for which power has been exercised. Upon challenge being made to the use of power under Section 17, the government must produce appropriate material before the court that the opinion for dispensing with the enquiry under Section 5A has been formed by the government after due application of mind on the material placed before it. It is true that power conferred upon the government under Section 17 is administrative and its opinion is entitled to due weight, but in a case where the opinion is formed regarding the urgency based on considerations not germane to the purpose, the judicial review of such administrative decision may become necessary. As to in what circumstances the power of emergency can be invoked are specified in Section 17 (2) but circumstances necessitating invocation of urgency under Section 17 (1) are not stated in the provision itself. Generally speaking, the development of an area (for residential purposes) or a planned development of city, takes many years if not decades and, therefore, there is no reason why summary enquiry as contemplated under Section 5A may not be held and objections of land owners/persons interested may not be considered. In many cases on general assumption, likely delay in completion of enquiry under Section 5A is set up as a reason for invocation of extraordinary power in dispensing with the enquiry little realizing that an important and valuable right of the person interested in the land is being taken away and with some effort enquiry could always be completed expeditiously. The special provision has been made in Section 17 to eliminate enquiry under Section 5A in deserving and cases of real urgency. The government has to apply its mind on the aspect that urgency is of such nature that necessitates dispensation of enquiry under Section 5A. We have already noticed few decisions of this Court. There is conflict of view in the two decisions of this Court viz.; Narayan Govind Gavate3 and Pista Devi6. In Om Prakash10 this Court held that decision in Pista Devi6 must be confined to the fact situation in those days when it was rendered and the two-Judge Bench could not have laid down a proposition contrary to the decision in Narayan Govind Gavate3. We agree. As regards the issue whether pre- notification and post-notification delay would render the invocation of urgency power void, again the case law is not consistent. The view of this Court has differed on this aspect due to different fact-situation prevailing in those cases. In our opinion such delay will have material bearing on the question of invocation of urgency power, particularly in a situation where no material has been placed by the appropriate government before the court justifying that urgency was of such nature that necessitated elimination of enquiry under Section 5A.
31. In a country as big as ours, the roof over head is a distant dream for large number of people. The urban development continues to be haphazard. There is no doubt that planned development and housing are matters of priority in developing nation. The question is as to whether in all cases of `planned development of the city' or `for the development of residential area', the power of urgency may be invoked by the government and even where such power is invoked, should the enquiry contemplated under Section 5A be dispensed with invariably. We do not think so. Whether `planned development of city' or `development of residential area' cannot brook delay of few months to complete the enquiry under Section 5A? In our opinion, ordinarily it can. The government must, therefore, do a balancing act and resort to the special power of urgency under Section 17 in the matters of acquisition of land for the public purpose viz.; `planned development of city' or `for development of residential area' in exceptional situation. Use of the power by the government under Section 17 for `planned development of the city' or `the development of residential area' or for `housing' must not be as a rule but by way of an exception. Such exceptional situation may be for the public purpose viz., rehabilitation of natural calamity affected persons; rehabilitation of persons uprooted due to commissioning of dam or housing for lower strata of the society urgently; rehabilitation of persons affected by time bound projects, etc. The list is only illustrative and not exhaustive. In any case, sans real urgency and need for immediate possession of the land for carrying out the stated purpose, heavy onus lies on the government to justify exercise of such power. It must, therefore, be held that the use of the power of urgency and dispensation of enquiry under Section 5A by the government in a routine manner for the `planned development of city' or `development of residential area' and thereby depriving the owner or person interested a very valuable right under Section 5A may not meet the statutory test nor could be readily sustained.
32. Adverting now to the facts of the present case, it would be seen that somewhere in February, 2000, a Land Selection Committee was constituted to identify the availability of land for a housing colony by the GDA. In April, 2001, the Committee so constituted inspected the site and proposed acquisition of land in Village Manbela and few other villages but nothing further was done as the tenure holders opposed the acquisition of their land and the Commissioner, Gorakhpur in public interest stayed proposal for acquisition. Abruptly the notifications for the proposed acquisition were issued on November 22, 2003/February 20, 2004 under Section 4 of the Act. In these notifications urgency clause was invoked and the enquiry under Section 5A was dispensed with. Then, for more than one year nothing was done. It was only on December 28, 2004 that a declaration under Section 6 was made. If the matter could hang on from April, 2001 to November 22, 2003/February 20, 2004 before the notifications under Section 4 were issued and for about a year thereafter in issuance of declaration under Section 6, acquisition proceedings could have been arranged in a manner so as to enable the land owners and/or the interested persons to file their objections under Section 5A within the prescribed time and complete the enquiry expeditiously. It is true that insofar as Uttar Pradesh is concerned, there is amendment in Section 17. Sub-section (1A) enables the Government to take possession under sub- section (1) of Section 17 if the land is required for public purpose viz.; `planned development'. Yet for forming an opinion that provisions of Section 5A shall not apply, the state government must apply its mind that urgency is of such nature warranting elimination of enquiry under Section 5A. Although some correspondence between the authorities and the government was placed before the High Court by the GDA, but no material has been placed on record by the State Government either before the High Court or before this Court indicating the application of mind that the urgency was of such nature which warranted elimination of the enquiry under Section 5A of the Act. It is interesting to note that GDA wanted the subject land to be acquired because their land bank had no land and they wanted land to keep the Authority running. If profit-making and the sustenance of the Development Authority was the motive, surely urgency was not of such nature that it could brook no delay whatsoever. In the facts and circumstances of the present case, therefore, the Government has completely failed to justify the dispensation of an enquiry under Section 5A by invoking Section 17 (4). For this reason, the impugned notifications to the extent they state that Section 5A shall not apply suffer from legal infirmity. The question, then, arises whether at this distance of time, the acquisition proceedings must be declared invalid and illegal. In the written submissions of the GDA, it is stated that subsequent to the declaration made under Section 6 of the Act in the month of December, 2004, award has been made and out of the 400 land owners more than 370 have already received compensation. It is also stated that out of the total cost of Rs. 8,85,14,000/- for development of the acquired land, an amount of Rs. 5,28,00,000/- has already been spent by the GDA and more than 60% of work has been completed. It, thus, seems that barring the appellants and few others all other tenure holders/land owners have accepted the `takings' of their land. It is too late in the day to undo what has already been done. We are of the opinion, therefore, that in the peculiar facts and circumstances of the case, the appellants are not entitled to any relief although dispensation of enquiry under Section 5A was not justified.
33. On behalf of the appellants, it was vehemently argued that the government may be directed to release their land from proposed acquisition. It was submitted by the appellants that houses/structures and buildings (including educational building) are existing on the subject land and as per the policy framed by the State Government, the land deserves to be exempted from acquisition. The submission of the appellants has been countered by the respondents and in the written submissions filed by the GDA, it is stated that the houses/structures and buildings which are claimed to exist, have been raised by the appellants subsequent to the notification under Section 4 (1) of the Act and, therefore, they are not entitled to release of their land from acquisition. In our view, since the existence of houses/structures and buildings as on November 22, 2003/February 20, 2004 over the appellants' land has been seriously disputed, it may not be appropriate to issue any direction to the State Government, as prayed for by the appellants, for release of their land from acquisition. However, as the possession has not been taken, the interest of justice would be subserved if the appellants are given liberty to make representation to the State authorities under Section 48 (1) of the Act for release of their land. We, accordingly, grant liberty to the appellants to make appropriate representation to the State Government and observe that if such representation is made by the appellants within two months from today, the State Government shall consider such representation in accordance with law and in conformity with the State policy for release of land under Section 48 (1) without any discrimination within three months from receipt of such representation.
34. In the result, these appeals fail and are dismissed, subject to the liberty reserved to the appellants for making representations under Section 48 (1) of the Act."
26. By the aforesaid judgment, even though leave was accorded to the petitioners to press the application under Section 48 of the Act, 1894 but nothing is brought on record to substantiate that in view of the aforesaid leave the parties have agitated before the State Government for release of the land in view of the provisions contained under Section 48 of the Act, 1894. Therefore, the aforesaid judgment passed by Hon'ble the Apex Court has attained finality. Detailed counter affidavit is already on record, which demonstrate that massive development has already been carried out by the Authority on spot, therefore, at this belated stage, pressing the application under Section 17 (1) of the Act, 1973 is totally misconceived and no reprieve can be extended to the petitioners. The land was acquired for public purpose mainly for residential colony by GDA and the same has attained finality upto Hon'ble the Apex Court, therefore, at this stage, we are not inclined to exercise our discretionary jurisdiction under Art.226 of the Constitution of India.
27. In view of above, the writ petition sans merit and is accordingly dismissed. Needless to say, in case any proceeding under Section 26 A (4) of the Act, 1973 are still pending consideration against the petitioners, the same may be finalized independently without being influenced by any of the observations made by this Court.
Order Date :- 15.4.2024 SP/