Allahabad High Court
Bhawar Singh @ Bhupendra Singh And 3 ... vs State Of U.P. And 4 Others on 4 April, 2023
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 47 Case :- WRIT - C No. - 10472 of 2023 Petitioner :- Bhawar Singh @ Bhupendra Singh And 3 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Vijay Kumar,Awadhesh Kumar Mishra Counsel for Respondent :- C.S.C.,Kaushalendra Nath Singh Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Vinod Diwakar,J.
This petition has been filed by the petitioners challenging the orders dated 14.11.2022 and 16.11.2022 contained in annexure 14 and 15 to the writ petition whereby their representations in respect of the construction allegedly made by them has been rejected. Before adverting to the merits of the order as also the contentions raised in respect thereof it would be appropriate to refer to certain background facts.
Petitioners claim to be residents of village Hajipur, Tehsil Dadri, District Gautam Budh Nagar and are claiming right over khasra no. 412 area 0.6070 hectare situated in village Hajipur, Tehsil Dadri, District Gautam Budh Nagar. The plot no. 412 area 0.6070 hectare land was subjected to compulsory acquisition for the benefit of respondent authority pursuant to acquisition notifications issued under Section 4/17 dated 28.11.2001 as well as declaration made under Section 6/17 dated 21.02.2002. The possession over such land was taken on 23.02.2002 and award under Section 11 in respect of such land has also been made on 30.09.2009. The petitioner's father late Ziley Singh @ Ziley Ram has also received compensation for the land acquired. It appears that a writ petition came to be filed by the petitioners ancestors Ziley Singh @ Ziley Ram no. 13284 of 2002 with a prayer for exemption of their land from acquisition proceedings and a direction was issued by this Court on 04.04.2002 to consider petitioner's representation.
A subsequent petition came to be filed before this Court by certain other persons being Writ C No. 54217 of 2014, which was disposed of by a co-ordinate Bench on 13.11.2014 vide followings orders:-
"Petitioners have approached this Court by means of the present writ petition alleging that the NOIDA authority is trying to demolish the constructions which are standing over plot No. 680 and 681M.
According to the petitioners the plots have neither been acquired nor there is any other legal justification for the NOIDA to take possession of the plots. Therefore, he has prayed for a mandamus commanding the respondents not to demolish the constructions standing over plot No. 680 and 681M situate in village-Gulawali, pargana- Dankaur, district-Gautam Budh Nagar.
In pursuance to the order of the Court counsel for the NOIDA has filed a short counter affidavit and in paragraph 6 it has been stated that there is no Abadi or structure over Khasra No. 680 and 680M. The petitioner wants to raise unauthorized colony. It has been then stated that both plots are within the limit of NOIDA authority and therefore no constructions can be raised within the territory of the NOIDA without getting a map duly sanctioned under the U.P. Industrial Area Development Act, 1976. There is no attempt on behalf of the HOIDA to take possession of the land in question.
Counsel for the petitioners submits that the constructions, which are standing on the said plots, are very old and they are in existence since prior to the constitution of NOIDA authority.
We are of the considered opinion that no purpose would be served by keeping the writ petition pending.
The present writ petition is disposed of by providing as follows:
(a) It shall be open to the NOIDA authority to ensure that no unauthorized constructions are raised over any plot within its territory.
(b) If there are any existing constructions, demolition thereof shall not be made without following the provisions of the U.P. Industrial Area Development Act, 1976 and the rules and regulations applicable.
(c) This order shall not entitle the petitioners to raise any unauthorized construction without getting a map sanctioned from the NOIDA."
It transpires that notices were issued to the petitioners by the respondent authority on the ground that constructions raised by them over the acquired land was contrary to the directions issued by this Court in Writ C No. 54217 of 2014, and also on the ground that the land otherwise is acquired for the benefit of NOIDA. Yet another Writ Petition came to be filed before this Court No. 40955 of 2019 on which following orders were passed on 11.12.2019.
"This writ petition has been filed, interalia, for the following reliefs:-
"(i) Issue a writ, order or direction in the nature of certiorari quashing the Notice dated 25.11.2019 (Annexure No. 6 to the writ petition) issued by respondent no. 3.
(ii) Issue a writ, order or direction in the nature of mandamus restraining the respondent no. 2 and 3 from demolishing any part of the petitioner's old residential house existing upon disputed Khasra No.412, Village Hajipur, Tehsil Dadari, District Gautam Budh Nagar before any order is passed by the State Government in compliance to order dated 04.04.2002 in petitioner's earlier Writ Petition No. 13284/2002 in garb of notice dated 25.11.2019."
Heard learned counsel for the petitioner, Shri Kaushalendra Nath Singh, learned counsel appearing on behalf of the respondent-Noida Authority and perused the record.
Perusal of the record shows that merely a show cause notice dated 25.11.2019 was issued by the respondent-Noida Authority to the petitioner and in response, the petitioner has already filed his reply/objection dated 27.11.2019.
Learned counsel appearing on behalf of the respondent-Noida Authority has stated that the final order would be passed expeditiously by the Noida Authority after considering the reply/objection dated 27.11.2019 filed by petitioner.
In view of the above, we direct the respondent-Noida Authority to pass the final order expeditiously after considering the reply/objection dated 27.11.2019 filed by the petitioner.
With the aforesaid direction, this writ petition is finally disposed of."
The grievance in respect of the same land was again brought before this Court in Writ C No. 26128 of 2022, which was disposed of vide following orders passed on 09.09.2022:-
"The petitioner has challenged a notice dated 11.8.2022 issued by respondents 3 and 4 requiring the petitioner to remove alleged unauthorized constructions or else submit explanation within a week, failing which, it shall be assumed that the petitioner has got no defence and proceedings in accordance with law will be undertaken.
It is evident from the material brought on record that the petitioner has submitted a detailed reply dated 16.8.2022 in response to the impugned notice which admittedly has not been decided so far.
In such view of the matter we dispose of the instant petition with direction to the competent authority, NOIDA to take decision in the matter by passing a speaking order expeditiously, preferably within six weeks from today. It shall be open to the petitioner to supplement his objections and also file supporting evidence, if so advised, within two weeks from today alongwith a true attested copy of the instant order. For a period of six weeks, status quo as of date, shall be maintained in respect of the subject land and the constructions existing over it.
Sri Kaushalendra Nath Singh, learned counsel appearing on behalf of respondents 2 to 4 shall forthwith communicate the instant order to the concerned respondent for due compliance. "
It is pursuant to the aforesaid order that the respondent NOIDA authority has rejected petitioner's claim for settlement of right over plot no. 412 on the ground that land is already acquired and vested in the state free from all encumbrances and therefore, petitioner's claim for regularization of such land in their favour on the ground of existence of abadi is mis-conceived.
Learned counsel for the petitioner strenuously urged that old abadi existed over such plot and the NOIDA authority is not justified in doubting the existence of such old construction on the premise that constructions raised are new constructions. It is also urged that denial of petitioner's claim on the ground that such claim is not covered under the policy of NOIDA is arbitrary.
Per contra, learned State counsel and Sri K.N.Singh for NOIDA submits that once the acquisition proceedings have concluded with taking over of possession of acquired land and publication of award the petitioners are denuded of any right, title or interest over such land and merely on the pretext of consideration of his claim for exemption from such acquisition the petitioners cannot continue to remain in unauthorized possession over the acquired land or to claim settlement of such land in their favour.
We have heard learned counsel for the parties and have perused the materials on record.
It remains undisputed that plot no. 412 has been subjected to compulsory acquisition for the benefit of NOIDA and after declaration was issued under Section 6(1)/17 of the Land Acquisition Act its possession was also taken. An award has also been made in the year 2009 and the petitioners father has also received compensation. In such circumstances, the land of khasra no. 412 has vested in the state free from all encumbrances and any claim for exemption from such acquisition proceedings after the proceeding for acquisition has attained finality would wholly be uncalled for.
We are not inclined to enter into factual issue as to whether there existed old construction or abadi upon it inasmuch as upon compulsory acquisition of land the tenure holder only gets right to receive compensation for the land and also for any structure that stood upon it. The stage to determine this factual issue was the award under Section 11 of the Act and in the event any person felt aggrieved, he could make a reference under Section 18 of the Act. We are therefore, not inclined to entertain a claim at the instance of the present petitioners, in respect of acquired land, on the premise that a direction was issued earlier by this Court for consideration of claim for exemption from acquisition proceedings.
We wish to reiterate that after the acquisition proceedings have attained finality and the land has vested in the acquiring body any subsequent claim for exemption from acquisition proceedings would wholly be uncalled for. The order passed by this Court in the year 2002 for consideration of claim for exemption from acquisition under Section 48 of the L.A. Act, 1894, cannot be pressed after twenty years, particularly when petitioner's father has received the compensation amount for the land in question.
The present petition is accordingly dismissed.
Order Date :- 4.4.2023 Ujjawal