Allahabad High Court
Baba Bharat Lal vs The State Of U.P. And Others on 27 April, 2012
Author: Sunil Ambwani
Bench: Sunil Ambwani, Pankaj Naqvi
HIGH COURT OF JUDICATURE AT ALLAHABAD
Judgment reserved on 02.4.2012 Judgment delivered on 27.4.2012
CIVIL MISC. WRIT PETITION NO. 46014 OF 2008
Baba Bharat Lal vs. State of UP and others
Hon'ble Sunil Ambwani, J.
Hon'ble Pankaj Naqvi, J.
1. We have heard Shri M.D. Misra, learned counsel appearing for the petitioner. Learned Standing Counsel appears for the State respondents. Shri Ramesh Upadhyay appears for Motilal Nehru National Institute of Technology, Allahabad (for short 'MNNIT').
2. This writ petition is directed against the order dated 11.10.1997 passed by the Competent Authority, Urban Land Ceiling, Allahabad under Section 10 (5) of the U.P. Urban Land (Ceiling and Regulation) Act, 1973, giving directions to Shri Mahanta Baba Sitaram Das, resident of Bhagwan Ashram, Shivkuti, Allahabad to hand over possession of plot nos. 59 and 63 (part) area 4510.19 square meters within 30 days. The petitioner has also prayed for directions to the respondents not to interfere in the peaceful actual physical possession of the petitioner on Gata nos. 59 and 63.
3. The writ petition was filed on 01.9.2008 with a delay of ten years and 236 days from the date of issuance of the notice sought to be quashed. An amendment application was filed on 2.4.2010 for adding a few grounds after ground no. XI, and a prayer as follows:
"(a) -1- to issue a direction to the respondent to produce the entire record regarding acquisition of plot no. 59 and 63 of Village Chilla, Tehsil Sadar, District Allahabad and to strike down the entire acquisition proceedings pursuant of the notification U/s 6/17 No. 1904-R-128-D-383-R-37 dated 12.10.66 published in the Gazette dated 20.10.66 including the notification itself and the alleged award dated 20.7.70 and to award the compensation as contemplated U/s 48 of the Land Acquisition Act."
4. The affidavits have been exchanged on the amendment application. The grounds no. XII, XIII, XIV and XV and a prayer to set aside the acquisition proceedings of same plot nos. 59 and 63 by the State Government acquiring the land including the disputed plots for establishment of the Engineering College issued under Section 4. The amendment application was filed on 2.4.2010 seeking to quash the notification dated 12.10.1966 published in the Gazette on 20.10.1966; the award dated 20.10.1970, and for compensation under Section 48 of the Act. The amendment application, however, does not annex the notifications, which are sought to be quashed, rather it annexes the notification dated 13.9.1995 under Section 10 (3) of the U.P. Urban Land (Ceiling and Regulation) Act, 1976, acquiring 4510.19 square meters of land in plot nos. 59 and 63 (part) Shivkuti, Allahabad as surplus land declared in the hands of Shri Mahanta Baba Sita Ram Das on 30.9.1985. The report dated 2.5.1983, submitted before the Competent Authority, Urban Ceiling in pursuance to the directions dated 6.4.1983, shows that there are 16 temples, one Samadhi, one Sadhu niwas, one post office and one well constructed on the land in dispute. The temples are situate in an area of 42.75 square meters, Sadhu niwas in an area of 11.44 square meters; one Samadhi in two square meters and the well in 3.14 square meters. The total constructed area along with well is 250.54 square meters. All these constructions appear to be very old for which no sanctioned plan was shown on the spot. The rest of the land is open land on which there are Mango and Kathal trees in the shape of grove.
5. In the affidavit accompanying the amendment application, it is stated that both the plots are ancestral property of the petitioner originally recorded in the name of Bhagwandeen, Bhola and Jagannath sons of Babu, as Zamindar each having one third share. Ram Bhajan son of Bhola executed a registered sale deed dated 30.4.1952 in favour of his nephew Shri Sita Ram son of Bhagwandeen on which late Shri Sita Ram-the father of petitioner Shri Bharat Lal became the owner, and in possession of two-third share of both plots. The remaining one-third share of Jagannath also devolved upon the father of the petitioner as Sheo Ram son of Jagananth died issue less. Late Sita Ram became exclusive owner of the entire area of plot nos. 59 and 63 for which the Khasras of the year 1959 Fasali and 1378 Fasali have been filed.
6. In paragraph-7 of the amendment application, it is stated that a letter dated 20.3.2008, alleged to be issued by the Special Land Acquisition Officer, Allahabad, is enclosed with the supplementary counter affidavit filed by the Additional Chief Standing Counsel on behalf of the State of UP disclosing that the notification under Sections 6/17 of the Land Acquisition Act was issued on 12.10.1966 and was published in the Gazette on 20.10.1966. The award was passed on 20.7.1970. The amount of compensation of Rs. 5312.51 was paid to Bhola Nath son of Babu Lal on 22.9.1970, and Rs.5312.51 was paid to Jagannath on 21.7.1970. As per entry in the R.D. register the voucher of Rs. 5312.49 was prepared in the name of Bhagwandeen son of Babulal but could not be paid as he was dead at that time. The plots in question vested in Moti Lal Nehru Engineering College, Allahabad. Bhola and Jagannath had died on 21.7.1974 and 22.9.1970 respectively. It is then stated in paragraph 7 (vii) to 15, that the land was urgently required, but the benefit under Section 17 (3) and (3A) was neither offered nor deposited in the Court as contemplated under Section 31 of the Act. The proceedings of acquisition were not complete. The date of the payment of compensation to Bhola and Jagannath dated 22.9.1970 and 21.7.1970 is false. They died on 21.7.1974 and 22.9.1970 respectively. The documents of payment of compensation are forged. The rights of Bhola and Jagannath were extinguished much prior to the issuance of the notification and vesting in Bhagwan Deen. The land belongs to Bhagwan Deen and after his death, it devolved upon late Sita Ram. The petitioner is still in possession of both the plots and constructions thereon.
7. It is then stated that in the meantime, Urban Land (Ceiling and Regulation) Act, 1976, was made and both these plots were declared as surplus vide judgment and order of the Prescribed Authority dated 30.9.1985 in Case No. 4303, and Gazette notification under Section 10 (3) was published on 16.8.1997. The notices dated 11.10.1997 and 11.11.1997 under challenge in the writ petition were issued in the name of Sita Ram-the father of the petitioner to deliver possession. This Court by order dated 4.9.2008, directed the parties to maintain status quo, and thus the possession of the petitioner has remained intact and that on the repeal of the Ceiling Act, the land cannot be taken back from the petitioner. The survey report shows the existence of temples, trees, graveyard, post office and other residential constructions. It is submitted that the petitioner cannot be deprived of his property except in accordance with the law. The petitioner has a constitutional right to property under Article 300-A of the Constitution of India. Even if it is assumed that the land was acquired, since no compensation was paid, the land acquisition proceedings are liable to be struck down.
8. In the counter affidavit of Shri Pramod Kumar Dwivedi, Legal Assistant, Moti Lal Nehru National Institute of Technology, Allahabad, it is stated that for the purposes of planned development of technical education, 17 Regional Engineering Colleges were established as a joint venture of the State, and Central Government. The Moti Lal Nehru Regional Engineering College, Allahabad is one of the 17 Regional Engineering Colleges established in the country-one in each major State. The land was acquired in Pargana Chail by the State Government for establishment of the College by notification under Section 4 dated 26.6.1963 followed by notification under Section 6 of the Land Acquisition Act dated 12.10.1965. The plot nos. 59 and 63 situate in village Patti Chilla, Taluka Sadiabad Uparhar were also acquired by the same notification. The area of plot no. 59 is 2 bigha 8 biswas 14 biswansi and the area of plot no. 63 is 2 bigha and 13 biswas. After acquisition the possession of the land was delivered on 18.8.1970 and necessary entries were made in the revenue records. The land in question is entered in the name of Moti Lal Nehru Regional Engineering College in the revenue records.
9. It is further stated in the counter affidavit filed on behalf of MNNIT, that late Sita Ram filed Civil Suit No. 255 of 1973 for permanent injunction against the respondents namely Motilal Engineering College, Allahabad, in which an order was passed on 31.5.1974 to maintain status quo, and not to demolish the temples, samadhi and well. The Motilal Nehru Engineering College, Allahabad through its Principal filed an Appeal no. 123 of 1974 against the injunction order, which was dismissed on 30.4.1975.
10. In paragraph-7 of the counter affidavit, it is stated that the suit was dismissed in default on number of occasions and that the restoration applications were also dismissed. By the order dated 28.3.1998, the suit was again dismissed for want of prosecution. The Court observed that the matter was called out upto 4 p.m; the plaintiffs are absent. There were no one to press the application (3-Ga) and consequently the application (3-Ga) was rejected and the file was consigned to record. Shri Sita Ram filed a second Civil Suit No. 857 of 2005 for permanent injunction in which a detailed counter affidavit was filed by the Motilal Nehru Engineering College. In the plaint of the suit, late Sita Ram stated in paragraph-4, that he earlier filed Suit no. 255 of 1973 in which an interim order was passed and against which the appeal was dismissed. It is thereafter stated in paragraph-9 of the counter affidavit, that the petitioner concealed all these facts, when he filed the Writ Petition No. 63017 of 2007, claiming that the land belongs to Mandir Trust and was recorded in the revenue records in the name of trust. The MNNIT filed a detailed counter affidavit. In the circumstances, it is stated in paragraphs 11 and 12 of the counter affidavit, that the land in question has been acquired as far back as in the year 1963, and is within the boundary wall of the residential portion of the MNNIT, Allahabad. The petitioner is taking advantage of the filing repeated suits and writ petitions and obtaining interim orders by concealing the facts.
11. In Writ Petition No. 63017 of 2007 filed by Baba Bharat Lal, Baba Dashrath Lal, and Baba Shatrughan all sons/pupils of late Baba Mahanth Sri Sita Ram, the petitioners have prayed for a writ of mandamus directing Moti Lal Nehru Regional Engineering College/Deemed University through its Principal/Manager/Chancellor-respondent no. 6 not to demolish the alleged temples, and not to cut the trees standing thereon and further to maintain status quo. The writ petition in 18 paragraphs does not disclose the facts detailed as above and has been filed simply on the basis, that since the respondent no. 6 wanted to demolish the temples, which are of more than 150 year's old, and to take possession of the trust property, the application under Section 156 (3) of Cr.P.C was filed for lodging the first information report. The respondents, however, are not restraining themselves and are continuously taking steps to demolish the temples. The filing of Writ Petition No. 63017 of 2007 was also concealed in Writ Petition No. 46014 of 2008.
12. The Writ Petition No. 63017 of 2007 was dismissed for want of prosecution on 14.10.2009. There is no application on record to recall the order. We summoned the file and do not find that any application has been filed to recall the order.
13. The annexure no. 4, annexed to the affidavit of Shri Pramod Kumar Dwivedi, Legal Assistant, MNNIT, is a copy of the plaint of Suit No. 255 of 1973, in which the parties' names are as follows:-
"To the Court of the Munsif West, Allahabad at Allahabad Suit No. 255 of 1973
1. Bhakt Vatahal Bhagaan Ashram through Baba Sitaram (Pujari) R/o Vill. Chilla Taluka Sadiabad, Parg. Chail, District Allahabad.
2.Satairam S/o Gajadhar, aged 45 yrs.
3.Maikoolal aged 42 yrs, S/o Mahadeo Pd.
4.Mewalal aged 40 years, S/o Ramadhin R/o Vill. Chilla Taluka Sadiabad, Pargana Chail, Allahabad - Plaintiffs vs.
1.Motilal Engineering College, Allahabad through the Principal Dr. Jagdish Lal, R/o M.L. Engineering College, Allahabad
2.Purshottam Thekedar, aged 45 yrs, S/o R/o Moh. Katra, Pargana Chail, District Allahabad
3.Rashid Thekedar aged 30 yrs, S/o Govindpur, Pargana Chail, District Allahabad
4.Dr. Jagdish Pal, Principal, Motilal Engineering College, Pargana Chail, Allahabad
- Defendants."
14. The written statement filed in the suit has not been brought on record. The plaint of the suit, however, establishes that Baba Sita as Pujari of Bhakt Vatahal Bhagaan Ashram had claimed injunction against the Engineering College. He obtained an injunction order against which the appeal filed by the Engineering College was dismissed and that the injunction order continued upto 28.3.1998, when the suit was dismissed and the file was consigned to the records. The same plaintiff Bhakt Vatahal Bhagaan Ashram through Baba Sitaram (Pujari) claiming to be 111 years' old had, referring to the earlier suit no. 255 of 1973, but without mentioning that the suit was dismissed for want of prosecution, filed another suit no. 857 of 2005 once again claiming injunction against the Engineering College. In this suit a written statement was filed by Shri R.P. Tiwari, Registrar, MNNIT, Allahabad on 17.12.2005, stating in paragraph-6, that the plaintiffs are not the owner of the land. The land belongs to the Motilal Nehru Engineering College, which is now known as MNNIT. In para-8 of the written statement, it is stated that the suit no. 255 of 1973 was dismissed in 1974. The first restoration application was also dismissed on 24.4.1976. The second restoration application was dismissed for want of prosecution on 17.9.1977, and that the third restoration application was dismissed for want of prosecution on 5.3.1980. In paragrpah-11 of the written statement, it is stated that the plaintiff has not given any proof of the ownership of the plot, nor has given the khasra number or the boundaries. The land in question is surrounded from three sides, and is within the boundary wall of the Institute. The State Government had handed over the possession of the land to the College/Institute on 30.3.1971.
15. The Motilal Nehru Engineering College was converted into an institute as MNNIT, Allahabad and was declared as Deemed University under Section 3 of the University Grants Commission Act, 1956 vide its notification dated 26.6.2002. The entire area of the disputed land bounded from three sides by the land of the Institute and one site towards the road is in illegal unauthorised occupation of the petitioners, and his father Baba Sitaram even after its acquisition by notifications under Sections 4 and 6 of the Land Acquisition Act for the Engineering College dated 26.6.1963 and 12.10.1965 of which the possession was handed over to the Engineering College on 18.8.1970.
16. From these pleadings, we find that late Shri Sitaram-father of the petitioner, and the petitioner was fully aware and had knowledge of the acquisition of the land by the State Government and handing over of its possession to the Engineering College in the year 1970-71 itself. Late Baba Sitaram claiming to be Pujari of Bhakt Vatahal Bhagwan Ashram along with Shri Satai Ram son of Gajadhar-plaintiff no. 2; Maikoo Lal-plaintiff no. 3 and Mewa Lal-plaintiff no. 4 filed a suit no. 255 of 1973, against the Engineering College in which they obtained an interim order without disclosing the facts, that the land has been acquired for the Engineering College and is recorded in the name of the Engineering College. They did not refer to any sale deed or any other basis of the title and claimed injunction only on the ground that there are temples situate on the land. As observed above and is found from the written statement in the subsequent suit filed by the same plaintiffs, being suit no. 857 of 2005, once again for injunction without referring to the basis of the ownership. The injunction was initially granted in the suit in 1973. The appeal was dismissed in 1974. The injunction order and the appellate order have not been brought on record. The suit was dismissed in 1974 and that the successive restoration applications were dismissed on 24.4.1976, 17.9.1977 and 5.3.1980. The status of the second suit no. 857 of 2005 has also not been disclosed by any of the parties. In the circumstances, we are of the opinion that the amendment application, by which the petitioner has prayed for quashing the notifications dated 12.10.1966, and 20.10.1966, claiming to be the notifications under Section 6/17 of the Land Acquisition Act, and the alleged award dated 20.7.1970, is grossly barred by laches. The petitioner has wrongly quoted the dates of the notification. The land was acquired by notifications under Sections 4 and 6 dated 26.6.1963 and 12.10.1965 and the possession was handed over to the Engineering College by the State Government on 18.8.1970. These notifications have not been annexed with the amendment application. Instead notifications dated 12.10.1966 and 20.10.1966 are sought to be quashed. The notification annexed to the amendment application is the notification dated 16.8.1997 under Section 10 (3) of the Urban Land (Ceiling and Regulation) Act, 1976.
17. From the materials available on record, the notifications acquiring the land under the Land Acquisition Act, 1894, as well as documents by which the compensation was accepted by Bhola Nath and Jagannath both sons of Babu Lal, each of Rs. 5312.51 on 22.7.1970 and the preparation of vouchers in favour of third son Bhagwan Deen of Shri Babu Lal, who had since died and the payment of compensation of Rs. 6910.57 to Shri Masoria Deen son of Khunnu for plot no. 63 on 30.7.1970, the declaration of award by the Special Land Acquisition Officer, Allahabad dated 20.7.1970, it is established that the disputed land had vested in the State Government and has been handed over to Moti Lal Nehru Engineering College, and thus the amendment application is liable to be rejected.
18. We consequently reject the amendment application dated 2.4.2010 on the grounds that it is defective, and that the prayer to quash the notification dated 12.10.1966 and award dated 20.7.1970, is also grossly barred by limitation.
19. Coming to the main prayers in the writ petition challenging the notice under Section 10 (5) of the Urban Land (Ceiling and Regulation) Act, 1976, we find that the same land, which was declared as surplus in plot no. 59 area 0.556 hec. and plot no. 63 area 0.594 hec. in village Patti Chilla, Tehsil Sadar, District Allahabad was acquired by the State Government by notifications dated 26.6.1963 published under Section 4 (1) of the Land Acquisition Act, 1894, and the notification under Section 6 of the Act dated 12.10.1966 after considering the report under Section 5A of the Act. The possession of the entire acquired land was handed over by the State Government to the Motilal Nehru Engineering College on 18.8.1970. The award was prepared on 20.7.1970, and was received by two out of three recorded family members. The voucher for payment of the third member was prepared and the amount is available to be received by him or his heirs from the Special Land Acquisition Officer, Allahabad. The land had thus vested free from all encumbrances in the State, and is also recorded in the revenue records in the name of Engineering College.
20. The proceedings under the Urban Land (Ceiling and Regulation) Act, 1976 could not have drawn in respect of the land, which had already acquired and vested in the State Government. It appears that by oversight, the Competent Authority, Urban Land, Ceiling Allahabad, initiated proceedings by preparing a draft statement. In the counter affidavit of Shri Devendra Singh, Assistant Engineer, Urban Land Ceiling, Allahabad filed on 17.12.2008, it is stated that Baba Sita Ram had filed the return under Section 6 (1) of the Act, which was numbered as return no. 4303 of 1976. The Competent Authority, after getting the survey made, issued a notice under Section 10 (3) of the Act along with the draft statement, which was served on Baba Sita Ram on 4.5.1982. Since he did not appear, the draft statement dated 25.2.1982 was confirmed and 4510.15 square meters of his vacant land was declared as surplus, which was to be taken as per chart. The Competent Authority also directed the action to be taken under Sections 9 and 10 (1) of the Act. It is further stated in the affidavit of Shri Devendra Singh, Assistant Engineer, Urban Land Ceiling, Allahabad, that the final statement was prepared and served upon the returnee on 20.10.1994 followed by notification under Section 10 (1) and 10 (3) of the Act. The notification under Section 10 (3) of the Act was published in the official gazette on 16.8.1997 and thereafter the notice under Section 10 (5) was issued on 11.11.1997, which has been wrongly mentioned as 11.10.1997. The amount of compensation was thereafter determined.
21. We find substance in the contention of learned Standing Counsel, as well as counsel appearing for MNNIT, that the land, which has already been acquired and vested in the State Government, could not be subjected to the proceedings under Urban Land (Ceiling and Regulation) Act, 1976.
22.In Sharda Devi v. State of Bihar & anr. JT 2003 (1) SC 18 the Supreme Court held that where the land is acquired by the State Government under the Land Acquisition Act, the Collector acts as a representative of the State in holding proceedings under the Act. He conducts the proceedings on behalf of the State. The award of the Collector is not the source of the right to compensation. It is a pre-existing right, which is recognized by the Collector and guided by the findings in determining the objections. The award made by the Collector is final and conclusive between the Collector and the persons interested whether they have appeared before the Collector or not. The issue about the true area; measurement of the land acquired; as to the value of the land and the apportionment of the compensation amongst the persons interested is between the Collector and the persons interested and not as amongst the persons interested inter-se. In the events of a reference having been sought under Section 18, the Collector's award on these issues, if varied by the Civil Court, shall stand superseded.
23.We find that in this case the land was already acquired by the State Government and after declaration of award and taking over of the possession, which was subsequently handed over to the Engineering College, the land had vested in the State Government free from all encumbrances. In the circumstances, the proceedings under the Urban Land (Ceiling and Regulation) Act, 1976 could not have been initiated, by the Competent Authority. The land owners were not left with any right in the land to claim the benefit of the land to be retained by them and for declaration of the surplus land nor the notifications made under Section 10 (1) and 10 (3) of the Act or the Repealing Act of 1999, of any consequence. The notifications issued under U.P. Urban Land (Ceiling and Regulation) Act, 1976, were redundant. It is apparent that either the land was repossessed or the possession was retained under the injunction orders passed by the Civil Court, which have since been vacated. The petitioners do not have any right over the land nor can they claim any right to retain the land within the ceiling limits or take any benefit of the Repeal Act of 1999.
24. We are distressed to observe that a large portion of land, which is part of the 132 bigha 7 biswas 16 biswansi for the Engineering College in 1966, and of which the possession was handed over to the Engineering College in 1970, remained in possession of the petitioners and could not be utilised by the Engineering College, on account of the orders passed by the Civil Court. Late Shri Sita Ram filed Suit no. 255 of 1973 in which he obtained injunction. The suit was dismissed and three successive restoration applications were also dismissed. After the suit was consigned to records on 28.3.1998, he filed another suit no. 857 of 2005 after seven years, and appears to have obtained injunction once again. In the meantime, he continued to make constructions over the land in dispute. The first Writ Petition No. 63017 of 2007 was filed, which was not pursued and was dismissed for want of prosecution on 14.10.2009. Baba Bharat Lal-the petitioner thereafter filed this writ petition without disclosing that the land had already been acquired by the State Government in 1966 under the Land Acquisition Act. In the facts and circumstances of the case, it is established on the record that both late Baba Sita Ram and his son Baba Bharat Lal were fully aware of the acquisition of land, and its transfer to Motilal Nehru Engineering College in 1970. The land is surrounded on three sides with the land of the Engineering College.
25. We are also distressed to observe that the process of the court was used to retain possession of the land, which was acquired and did not belong to the petitioner. He took advantage of the lack coordination between the Special Land Acquisition Officer, Allahabad, and the office of the Prescribed Authority, Urban Ceiling, and obtained interim order from this Court once again on 4.9.2008 withholding the fact of acquisition of the land, and obtained an order directing the parties to maintain status quo. The interim order dated 4.9.2008 was vacated on 20.1.2009, on the ground that the petitioner had earlier filed two suits and had also not disclosed, that he had earlier filed Writ Petition No. 63017 of 2007 by way of public interest litigation. This Court restored the interim order on 31.7.2009 purportedly on the submission of learned counsel appearing for the petitioner, that the earlier Writ Petition No. 63017 of 2007 was a public interest litigation. There was no public interest involved in the Writ Petition No. 63017 of 2007 which was dismissed on 14.10.2009. It was a writ petition filed by the same petitioners claiming protection and possession of the same land annexing certain photographs of small temples, which have been built on the land, raising religious concerns. The Writ Petition No. 63017 of 2007 was filed in private interest and was not pursued by the petitioner as he had not disclosed the ownership and the back ground of the litigation.
26. The petitioner's father and thereafter the petitioners have been in possession of the disputed land, which was acquired and was handed over to Engineering College in 1970, for last 42 years. They withheld the facts in successive suits and writ petitions and misused the process of the Court in obtaining orders from the Courts. Inspite of stiff opposition put by the Engineering College, the Courts on account of the large pendency of the cases could not devote time to hear the matter. Even now when the matter was argued, a very forceful attempt was made to adjourn the case, which we resisted with some difficulty.
27. The writ petition is dismissed.
28. Before parting with the case, we find it appropriate to compensate the MNNIT, Allahabad for the loss caused to it for not being allowing to occupy the land, which was reserved by the Institute for residential accommodation of its teaching staff. We find it just and appropriate to award the cost of Rs. 5 lacs towards compensation for depriving it for use and occupation of the land, by the petitioners for last 42 years. This compensation has been worked out by us on an average of Rs. 1000/- per month for last 42 years. The compensation shall be deposited by the petitioners in the office of the Registrar, MNNIT, Allahabad within a period of two months, failing which, on the request of the Registrar of the MNNIT, Allahabad, the District Magistrate will recover it from the petitioners, as arrears of land revenue.
Dt.27.4.2012 RKP/