Allahabad High Court
Smt. Chunni Devi & 2 Others vs State Of U.P. Through Additional Chief ... on 16 October, 2019
Bench: Pankaj Kumar Jaiswal, Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 1 Case :- MISC. BENCH No. - 11077 of 2017 Petitioner :- Smt. Chunni Devi & 2 Others Respondent :- State Of U.P. Through Additional Chief Secretary Housing & U Counsel for Petitioner :- Apoorva Tewari,Akhilesh Kumar Mishra,Raj Kumar Singh Counsel for Respondent :- C.S.C.,I.P. Singh,Rajeev Singh,Ratnesh Chandra Hon'ble Pankaj Kumar Jaiswal,J.
Hon'ble Irshad Ali,J.
1. Heard Sri Anil Tiwari, learned Senior Advocate assisted with Sri Apoorva Tewari and Sri Pawan Awasthi, learned Counsel for the petitioners, Sri H. P. Srivastava, learned Additional Chief Standing Counsel for respondent Nos. 1, 2, 6 and 7, Sri Ratnesh Chandra, learned Counsel for respondent Nos.3, 4 and 5 and Sri I. P. Singh, learned counsel for respondent No.8.
2. Petitioners are co-owners of plot No. 67, Village Balakganj, Pargana, Tehsil and District Lucknow. The said plot had a total area of 10 bigha 15 biswa 8 biswansi and 9 kachwansi and was jointly owned by Smt. Shakuntala Devi and Smt. Chunni Devi, i.e., petitioner No.1. The Government of U.P. issued a notification dated 26.5.1987 under Section 4 of the Act for acquiring an area of 1 bigha 15 biswa 8 biswansi 8 kachwansi out of total area of plot No. 67 Village Balakganj, Pargana, Tehsil and District Lucknow for the purpose of construction of Second Water Works under the Radhagram Scheme by the respondent No.3/Lucknow Development Authority. It was followed by the declaration under Section 6/17 of the Land Acquisition Act, 1894 (in short 'the Act') for acquiring an area of 1 bigha 15 biswa 8 biswansi 8 kachwansi out of plot No.67 Village Balakganj, Pargana, Tehsil and District Lucknow has been issued. Remaining area, i.e., 9 bigha and 1 kachwansi of land of plot No. 67 Village Balakganj, Pargana, Tehsil and District Lucknow was never acquired by the State of U.P. and co-owners remained owners of the land in question.
3. Despite the fact that the notification aforesaid only indicated 1 bigha 15 biswa 8 biswansi and 8 kachwansi, possession of the entire area of 10 bigha 15 biswa 8 biswansi and 8 kachwansi was taken.
4. An Award under Section 11 of the Act was declared by the Collector on 3.6.1999 in respect of the actual acquired area of 1 bigha 15 biswa 8 biswansi 8 kachwansi only. Thereafter, the possession of whole area was subsequently handed over to the respondent No.3/Lucknow Development Authority illegally in spite of the fact that the acquisition notifications were only in respect of 1 bigha 15 biswa 8 biswansi 8 kachwansi and the State Government did not acquire any right or title in respect of un-acquired land. Respondent No.3/Lucknow Development Authority, in turn, handed over possession of the land to the respondent No.8/U. P. Jal Nigam.
5. The land owner aggrieved by the arbitrary action of the respondents filed Writ Petition No. 4954 (MB) of 1989 before this Court inter alia challenging the acquisition notifications with a prayer that the respondents be restrained from interfering in the possession of the petitioner in respect of the un-acquired land in question, i.e., 9 bigha 1 kachwansi which was not subject to the acquisition proceedings.
6. On 26.5.1989, the learned Writ Court passed an order directing the respondents not to demolish the existing construction nor undertake any construction over the land in question.
7. Smt. Shakuntala Devi died on 27.6.1991 during pendency of the aforesaid writ petition and in her place, her sons, namely, Sudheer Kumar and Pradeep Kumar were substituted.
8. During pendency of the aforesaid writ petition, another writ petition No. 2685 (MB) of 1996 was filed by Sudheer Kumar and Pradeep Kumar, sons of Smt. Shakuntala Devi inter alia praying for a direction to restrain the respondents from encroaching upon the land in question. On 21.11.1999, during pendency of the aforesaid writ petition, Pradeep Kumar died and his legal heirs were substituted in his place.
9. Both the writ petitions were finally disposed of by a common judgment and order dated 4.4.2007 directing the State Government to either pay compensation to the land owners at the market rate prevalent at the time when the said possession was taken, including, solatium, ex gratia etc. which shall be calculated in accordance with the provisions of the Act as if the land has been acquired or in alternative, they shall return the land to the land owners without any further delay. Relevant part of the order dated 4.4.2007 reads as under:-
"In the counter affidavit filed by Sri S. K. Tripathi, on behalf of the Lucknow Development Authority Lucknow in para - 3, it has been admitted that at the time of acquisition of Khasra plot No.67 of Village Balakganj, Lucknow having an area of 10-15-8-8, the area was misread as 1-15-8-8 and, therefore, for the remaining 9-0-0-0 of land khasra Plot No.67, the proposal for acquisition of the remaining area has already been sent to the State Government. Further, it has been submitted that an advance of Rs.1,00,000=00 was also deposited by the Lucknow Development Authority with the ADM (LA) on 1.12.1989 (learned Senior Counsel Sri Umesh Chandra says that actually, this amount was Rs.8,00,000=00. So far, the notification under Section 4 and 6 of the Act has not been issued for acquisition the remaining area of Khasra Plot No.67 aforesaid.
The State Government has not filed any counter affidavit. The controversy involved is in a narrow campus and as rightly been suggested by the learned counsel for the parties that in case the land of the petitioners in excess of area which was mentioned in the notification under Section 4 and 6 has been acquired or even otherwise, possession of the same has been taken without issuing notifications, the respondents should either pay the compensation as per the law or they have to return the land to the petitioners. The respondents, may be the State or the Lucknow Development Authority, cannot deprive a person of his property or land for their own use, may be in public interest without paying compensation.
Admittedly, in the instant case, there appears to have been some slip in the matter of issuance of notifications under Section 4 and 6 wherein, the area of plot in question, was shown much less than the actual area and not only this, despite the aforesaid facts, the possession of the entire area of the land has been taken by the respondents.
This is also evident by the fact that the Lucknow Development Authority as far back as in the year 1989, has requested the State Government to issue notification for acquisition and for that purpose, an advance amount of Rs.8,00,000=00 has been paid but the State Government has chosen to sleep over the matter and did not proceeded at all.
That being the position, we dispose of these writ petitions finally with the directions that the State Government shall either pay compensation to the petitioners at the market rate prevalent at the time when the said possession was taken, including, solatium, ex gratia etc., which shall be calculated in accordance with the provisions of Land Acquisition Act, as if the land has been acquired or in the alternative, they shall return the land to the petitioners without any further delay."
10. Thereafter, the land owners filed Special Leave Petition No. CC 9788-9789 of 2007 before the Hon'ble Supreme Court assailing the judgment and order dated 4.4.2007. The Hon'ble Supreme Court vide order dated 8.10.2007 dismissed S.L.P. No. CC 9788-9789 of 2007. The Apex Court, while dismissing the SLPs, granted liberty to the land owners to approach the High Court for clarification of the order passed by the High Court only to the extent as to why the petitioners shall not be paid compensation from the date of issuance of notification in respect of the land acquired under Section 4 of the Land Acquisition Act and not from the date of possession. Order dated 8.10.2007 reads as under:-
"Delay condoned.
Having heard the learned counsel for the petitioners and after going through the impugned order, we do not find any ground to interfere with the same. However, the leaned senior counsel appearing for the petitioners has drawn our attention to the fact that no time limit has been given in the impugned order within which the High Court shall either pay compensation to the petitioners at the market rate prevalent at the time including the solatium, ex-gratia etc. which shall be calculated in accordance with the provisions of the Land Acquisition Act as if the land has been acquired or in the alternative they shall return the land to the petitioners without any further delay. In that view of the matter, we only grant six months time to comply with the directions made by the High Court in the impugned order. There is another aspect of the matter. The High Court in the impugned order has directed that the State Government shall either pay compensation to the petitioners at the market rate prevalent at the time when the possession was taken including solatium, ex-gratia etc. which shall be calculated in accordance with the provisions of the Land Acquisition Act as if the land has been acquired.
Although, we are dismissing the special leave petitions, we grant leave to the petitioners to approach the High Court for clarification of the order passed by the High Court only to the extent as to why the petitioners shall not be paid compensation from the date of issuance of notification in respect of the lands acquired under Section 4 of the Land Acquisition Act and not from the date of possession. Subject to above directions, the special leave petitions stand dismissed. No order as to costs. If any application is made, the High Court shall decide the same in accordance with law."
11. The judgment and order dated 4.4.2007 was not complied with within the stipulated time. The State Government/respondent No.1 has neither paid any compensation treating the land to be acquired nor has returned the possession of the land to the petitioners and the land in question remained in the illegal use and occupation of the U. P. Jal Nigam and its title continued to vest in its original owners and thereafter their successors in interest.
12. On 1.1.2014, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 came into force and the Act was repealed therein.
13. Respondent No.1/State Government issued a Government Order dated 19.3.2015 laying down policy for purchase of land from land owners on the basis of mutual consent. On 7.12.2015, petitioner no.1 made a detailed representation and prayed for return of the possession of the land in question to the original owners in accordance with the judgment and order dated 4.4.2007. On 4.4.2016, respondent No.5/Secretary, Lucknow Development Authority wrote a letter to the respondent No.7/Additional District Magistrate (Land Acquisition) that compensation payable for the un-acquired land in question is to be calculated in accordance with Government Order dated 19.3.2015 which provides for purchase of land by mutual consent.
14. In the meanwhile, on 6.4.2016, petitioner No.3 purchased the share of Sudheer Kumar in the land in question and became owner of 1/4th undivided share of the land in question and stepped into the shoes of Sudheer Kumar.
15. One M/s Chunni Devi-Deepak Kumar HUF/petitioner No.2 purchased the share of Smt. Nupur Rastogi, Smt. Ayushi Rastogi and Smt. Tushi Rastogi vide registered sale deed dated 11.4.2016 and became owners of 1/4th undivided share of plot No.67.
16. On 23.6.2016, the Committee headed by the District Magistrate, Lucknow resolved to purchase the un-acquired land in question in accordance with the Government Order dated 19.3.2015. It was also decided by the committee that the title of the land owners be verified before payment of the sale consideration. Relevant part of the Minutes of Meeting dated 23.6.2016 reads as under:-
"vij ftykf/kdkjh ¼foRr ,oa jktLo½ y[kuÅ }kjk crk;k x;k fd 'kklukns'k fn0 19-03-2015 ds vuqlkj izfrQy dh nj dk fu/kkZj.k] dz; dh tkus okyh Hkwfe ds vkl&ikl 06 ekg esa fu"ikfnr fodz; i= ;k dysDVj lfdZy jsV tks vf/kd gks] ds vk/kkj ij fn;k tkuk gksrk gSA xzke ckydxat dh Hkwfe ls lEcfU/kr foxr 06 ekg esa iathd`r fodz; i=ksa dk vkSlr ewY;] dysDVj lfdZy jsV ls de gS vr% izfrQy dh nj dysDVj lfdZy jsV ds vk/kkj ij fu/kkZfjr gksxhA mDr HkwfEk 'kgjh {ks= esa vkrh gSA vr% izfrQy fu/kkZfjr nj dk nks xquk gh ns; gksxkA pwafd fgrc) O;fDr dh vksj ls izLrqr izkFkZuk i= esa U;wure nj ij rFkk Hkwfe dkuZj ij gksus ds dkj.k 10 izfr'kr c<+ksRrjh ds lkFk izfrQy ysus gsrq lgefr nh x;h gS vr% mDr Hkwfe ds izfrQy dh nj] xzke ds U;wure dysDVj lfdZy jsV 9]000-00 izfroxZehVj rFkk Hkwfe dkuZj dh gksus ds dkj.k 10 izfr'kr vfrfjDr tksM+rs gq, vFkkZr #0 9]900-00 izfroxZehVj dh nj ls fn;k tkuk vkSfpR; iw.kZ gksxkA bl izdkj mDr Hkwfe dk ewY; mi;qZDr nj ls #0 22]54]23]000-00 gksrk gSA mi;qZDrkuqlkj lfefr }kjk fopkj foe'kZ ds mijkUr fu..kZ; fy;k x;k vkilh lgefr ls dz; fd;s tkus gsrq mDr Hkwfe dk ewY; #0 22]54]23]000-00 fu/kkZfjr fd;k tkuk mfpr izrhr gksrk gsA izLrkfor Hkwfe 'kgjh {ks= esa vkrh gSA mRrj izns'k 'kklu ds vkokl ,oa 'kgjh fu;kstu vuqHkkx&3 ls fuxZr 'kklukns'k la0 385@8&3&16&309 fofo/k@15] fn0 21-03-2016 esa fn;s x;s funsZ'kkluqlkj 'kgjh {ks= dh Hkwfe dk izfrQy nks xqus rd ns; gSA vr% mDr Hkwfe dk dqy izfrQy #0 45]08]46]000-00 fn;k tkuk mfpr izrhr gksrk gSA lfefr }kjk ;g Hkh fu.kZ; fy;k x;k fd dksbZ Hkh izfrdj fn;s tkus ds iwoZ lfpo] y[kuÅ fodkl izkf/kdj.k }kjk LokfeRo lEcU/kh vfHkys[kksa dk ijh{k.k djkrs gq, tkudkjh izkIr dh yh tk;s fd mDr Hkwfe jkT; ljdkj@uxj fuxe@xzke lekt@lhfyax vkfn ls izHkkfor rks ugha gSA bl ijh{k.k ds mijkUr gh izfrdj dk Hkqxrku fd;k tk;sA g0 g0 g0 ¼,l0ch0 pUnz½ ¼jkt dey ;kno½ ¼'k=ksgu oS';½ mifuca/kd&4 mi ftykf/kdkjh&lnj vij ftykf/kdkjh ¼Hkw0 v0½ y[kuÅ y[kuÅ y[kuÅ A lnL; lfefr lnL; lfefr lnL; lfefr g0 g0 ¼/kuUt; 'kqDy½ ¼Jh'k pUnz oekZ½ vij ftykf/kdkjh ¼fo0 ,oa jk0½ y[kuÅ fodkl izkf/kdj.k] y[kuÅ y[kuÅ lnL; lfefr g0 ¼jkt 'ks[kj½ ftykf/kdkjh] y[kuÅ v/;{k lfefr"
17. On 9.11.2016, the Tehsildar (Sadar), Lucknow submitted his report regarding ownership of the petitioners over the land in question and forwarded the same to the Secretary, Lucknow Development Authority through the Collector. In spite of various representations made by the petitioners, neither the sale deed was executed by mutual consent nor any compensation was paid to the petitioners, therefore, the petitioners were compelled to file the instant writ petition and prayed for purchase of un-acquired land in question by mutual consent in accordance with Government Order dated 19.3.2015 alongwith interest and also claimed damages for the illegal use and occupation of the land in question since 1988 till delivery of vacant physical possession of the land in question.
18. On 12.7.2017, a Coordinate Bench of this Court directed the Chief Secretary of the State Government to forthwith take notice of the facts mentioned in the order and within a period of two weeks ensure that the compensation is paid to the petitioners. Order dated 12.7.2017 reads as under:-
"Additional Chief Standing Counsel for the respondent No.1 and 2.
This writ petition discloses peculiar facts where the undisputed position that emerges is that the land of the petitioners of plot No.67 area 10 Bighas-15 Biaswas-8 Biswansis-9 Kachwansis (10-15-8-9) has been occupied for the Radha Gram Scheme Second Water Works. In the acquisition proceedings that were initiated by the State Government the notification of the State Government incorrectly mentions 1 Bigha instead of 10 Bighas, but undisputedly the entire land was occupied. The construction of the water works having been completed, has been handed over to the Municipal Corporation according to the learned counsel for the Jal Nigam.
The petitioners have admittedly received compensation of the area that was referred to in the notification of acquisition, and not with regard to the balance of the area. Thus out of the entire area, the petitioners have received compensation in respect of 1 Bigha-15 Biswas-8 Biswansis-8 Kachwansis. only.
The balance of compensation of 9 Bighas and odd remains unpaid which is admitted on record. On the intervention of the authorities the matter was sought to be resolved and the responsibility came to be fixed of the said payment on the Uttar Pradesh Jal Nigam.
This writ petition was filed when no payments were tendered whereafter a counter affidavit has been filed by the Principal Secretary, Nagar Vikas clearly stating therein that a latter has been issued on 26.05.2017 by the Principal Secretary Awas Evam Shahri Niyojan Vibhag to the Principal Secretary, Urban Development indicating that it is the U.P. Jal Nigam which has to make available the entire funds for such payment.
Sri I.P. Singh learned counsel for the Jal Nigam submits that as a matter of fact the acquisition and occupation of the land was made by the State Government. Therefore after possession having been taken the land was handed over to the Jal Nigam, which was the executing agency for constructing the work. After having completed the project, the same has been handed over to the Lucknow Municipal Corporation. Consequently, in such circumstances the payment has to be made by the State Government.
We have gone through the entire record and what we find is that so far as the petitioners are concerned, it is not their headache as to who has to make the payment. The admitted position is that the land has been occupied for public purpose at the instance of the State Government and it is being utilized for the purpose of water works having been set up. Thus, the petitioners have been deprived of their property without making any payment of compensation to the extent as indicated above and which is the admitted position between the parties. Learned counsel for the petitioners further submits that the petitioners have also given their consent to the amount of compensation that is to be received by them about which deliberations have already taken place.
In the aforesaid background, there remains no issue even with regard to the quantification of amount to which the petitioners are entitled to.
We therefore direct the Chief Secretary of the State Government to forthwith take notice of these facts and within a period of two weeks ensure that the compensation is paid to the petitioners. In the event the said order is not complied with, this Court Court may proceed to take appropriate action in the matter.
The matter shall be listed immediately after two weeks.
A copy of this order be given today to the learned standing counsel and Sri I.P. Singh for compliance forthwith."
19. Relevant part of letter dated 29.7.2017 reads as under:-
"ek0 mPp U;k;ky; ,oa ek0 loksZPp U;k;ky; ds mDr vkns'kksa ds vuqikyu esa vki lHkh ;kphx.kksa ds le{k fuEu nks fodYi izLrqr gS%& 1- [kljk la[;k & 67 jdck 9&0&0&1 ch?kk dks dCtk fnukad 23-08-1988 ls vftZr ekurs gq, rRle; izpfyr cktk: nj lksysf'k;e] ,Dlxszfl;k] bR;kfn dh x.kuk vij ftykf/kdkjh&Hkw0v0 ds vuqlkj ewy izfrdj o fnukad 31-07-2017 rd e; C;kt lfgr dqy /kujkf'k :&31]43]443-32 ¼bDdrhl yk[k rSrkfyl gtkj pkj lkS rSrkfyl :i;s cRrhl iSls½ vxf.kr gS A vFkok 2- vuftZr Hkwfe jdck 9&0&0&1 ch?kk ;kphx.k okil ys ldrs gS A vr% mijksDr izLrqr fodYiksa esa ls fdlh ,d fodYi ij vki lHkh ;kphx.k viuh lgefr 'kiFki= ,oa bl dk;kZy; ds i= la[;k & 487 488 o 489 fnukad 28-07-2017 esa mfYyf[kr izi=ksa ds lkFks y[kuÅ fodkl izkf/kdj.k esa ,d lIrkg ds vUnj miyC/k djkus dk d"V djsa rkfd vxszRrj dk;Zokgh lqfuf'pr djk;h tk ldsA
20. On 3.1.2018, when the matter was listed for hearing, the respondent No.3/Lucknow Development Authority in pursuance of the decision taken in the meeting convened by the Chief Secretary communicated to the petitioners vide letter dated 29.7.2017 either to accept Rupees Thirty One Lakhs and odd as compensation or to take back the un-acquired land in question.
21. During the course of hearing on 3.1.2018, learned Counsel for the petitioner made a statement before the Court that they are not willing to accept the compensation as offered and prayed for restoration of the land in their favour. Order dated 3.1.2018 reads as under:-
"The Lucknow Development Authority vide letter dated 29.7.2017, which has been issued pursuant to the decision taken in the meeting convened by the Chief Secretary in which Head of the Departments participated, has communicated to the petitioners either to accept 31 lacs and odd as compensation or to take back the land in question.
Sri Anil Tewari, learned Senior Advocate, appearing for the petitioners, upon instruction, states that the petitioners are not willing to accept the compensation as offered and the stand of the petitioners has been categorically stated in the affidavit dated 16th August, 2017 in paragraph 18 onwards. Thus the only option left is for restoration of the land to the petitioners.
Sri Ratnesh Chandra, learned counsel appearing for the Lucknow Development Authority and Sri I.P. Singh, learned counsel representing Jal Nigam, pray for and are granted a week's time to inform as to how much time they would take in removing the construction and handing over the possession of the land in question to the petitioners as stood in the year 1988.
List this case in the top five cases on 15.1.2018.
By the next date fixed, the affidavits may be filed by both the respondents i.e. Lucknow Development Authority and U.P. Jal Nigam. Sri H.P. Srivastava, learned Additional Chief Standing Counsel representing State-respondents may also obtain instructions by the next date fixed in the matter."
22. As per short counter affidavit filed on behalf of respondent No.2 (Principal Secretary, Nagar Vikas), a letter dated 26.5.2017 has been isued by the Avas Evam Shahari Niyojan Vibhag addressed to the Principal Secretary, Urban Development, Government of U.P. in which it has been indicated that it is the respondent No.8/U.P. Jal Nigam which has to make available the fund for the payment of compensation, otherwise the interested tenure holders have to be returned the possession of the un-acquired land.
23. On 26.3.2018, an application for impleadment was filed vide Civil Misc. Application no. 35008 of 2018 by Smt. Bibi Begum claiming ownership of the land in question. This application was rejected on 1.4.2019. She challenged the aforesaid order by filing Special Leave Petition (Civil) Diary No(s). 14233 of 2019. The Hon'ble Supreme Court vide order dated 6.5.2019 dismissed the said Special Leave petition.
24. As per affidavit of Principal Secretary, Department of Urban Development, Government of U.P. dated 31.8.2019, it is not disputed that amended proposal for acquiring of un-acquired land was submitted to the Additional District Magistrate (Land Acquisition) but the amendment could not be carried out nor any notifications under Sections 4 and 6 read with Section 17 were ever issued. On 23.8.1998, the possession of the un-acquired land was handed over to the U. P. Jal Nigam. He has also admitted that in order to resolve the issue regarding payment of compensation in respect of un-acquired land, a meeting was convened by him on 22.8.2019 wherein the representatives from U. P. Jal Nigam, Lucknow Development Authority, Nagar Ayukt, Nagar Nigam, Lucknow and General Manager, Jalkal Department were participated and after due consideration, it was decided that entire compensation amount of Rs.33.26 lakhs (calculated) at the prevalent rate at the time of possession and including interest upto 31.8.2019) of the disputed land of Gata No.67 measuring 9-0-0-1 will be made available by the Jalkal Department, Nagar Nigam, Lucknow to the U. P. Jal Nigam, Lucknow and consequently, the U. P. Jal Nigam will make available the compensation amount to the Lucknow Development Authority, who, in turn, will make this amount available to the District Administration (Land Acquisition Authority) for its disbursement to the rightful owners of the land as per Rules. Thereafter, the Urban Development Department, Government of U.P. has passed an order on 23.8.2019 (Anneuxre A2) directing the Jalkal Department to provide the entire compensation amount of Rs.33.26 lakhs in respect of un-acquired land to the Lucknow Development Authority for its disbursement to the actual owners of the un-acquired land.
25. By filing personal affidavit by the Chief Secretary on 16.9.2019, almost similar stand has been taken.
26. A detailed rejoinder affidavit has been filed by the petitioners stating therein that the land in question has been under illegal occupation of the respondents since the year 1998 though the respondents have neither acquired the land nor returned the same to the petitioners in spite of the directions issued by this Court as well as by the Apex Court. It has also been pointed out that on 3.1.2018, this Court directed for restoration of the land to the petitioners yet no action has been taken by the respondents-authorities and the land is still under their illegal occupation. It is also submitted that in pursuance of the directions issued by this court on 12.7.2017, the Chief Secretary convened a meeting on 25.7.2017 whereby it was decided that the un-acquired land of the petitioners be returned to them by the U.P. Jal Nigam/respondent No.8. The respondents continue to occupy the un-acquired land of the petitioners in an illegal manner without carrying out any acquisition proceedings and without paying compensation which is in violation of 300-A of the Constitution of India. Despite a specific direction given by this Court on 4.4.2007 and which has been upheld by the Apex Court on 8.10.2007 till today no compensation has been paid. The State Government in order to determine the compensation amount to the land owners in terms of the judgment and order dated 4.4.2007 passed by this Court was required to have made an Award under Section 11 of the Act but no Award under the aforesaid provision was made while the Act remained in force. Thereafter, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 [in short 'the 2013 Act'] came into force w.e.f. 1.1.2014 and the 1894 Act was repealed. Section 24 of the 2013 Act mandates that where no award under Section of the 1894 Act has been made, then all provisions of the 2013 Act relating to determination of compensation shall apply.
27. It has been pointed out that on 3.1.2018, the question of acceptance of compensation as per market rate in the year 1998 has already been considered and rejected by this Court and now only the issue remains is for restoration of un-acquired land back to the petitioners.
28. The contention of the learned Senior Counsel for the petitioners is that any Award determining the compensation payable to the petitioners even treating the land as having been acquired in furtherance to the judgment and order dated 4.4.2007 has to be in accordance with the provisions contained in the 2013 Act and there is no justification in determination of compensation amount of Rs.33,26,500/- and the same is not acceptable to the petitioners and prayed that the respondents be directed to pay compensation under the 2013 Act or return the possession of the un-acquired land forthwith.
29. Learned Additional Chief Standing Counsel and learned Counsel for Lucknow Development Authority have vehemently argued that the order dated 4.4.2007 which has been upheld by the Apex Court on 8.10.2007 is very clear that specific and as per aforesaid order, the respondents are liable to pay compensation to the petitioners as per 1894 Act.
30. It has been consistent view of Hon'ble Supreme Court that right available to the State to acquire property is not unfettered but it is based on public policy subject to payment of adequate compensation on prevailing rate but not illusory. The land owners must get adequate compensation whenever their lands are acquired in accordance with statutory provisions as well as rate prevailing at the time of acquisition.
31. In the earlier round of litigation, this Court while passing the order dated 4.4.2007, had deprecated the State action to acquire a land in violation of statutory provisions. Compulsory acquisition without acquiring the land or making any payment of the property belonging to a private individual is a serious matter having grave repercussions on his constitutional right of not being deprived of his property without sanction of law. The State must exercise its power with great care and circumspection. It will be borne in mind that right to property no longer be a fundamental right but is not only a constitutional right but also a human right and no one can be deprived of his or her property arbitrarily.
32. From the aforesaid facts, it is clear that in respect of un-acquired area of 09 Bigha and odd, no proceedings were taken to acquire the land nor any award had been made, thus, though the writ petitioners stood dispossessed from their land, i.e., 09 Bigha and odd in pursuance of Notifications dated 26.05.1987 and 02.06.1987 issued under Sections 4 and 6 of the Act for acquiring an area of 1 Bigha 15 Biswa 08 Biswansi 09 Kachwansi (1-15-08-09) in respect of plot no. 67 without resorting to any valid proceedings for acquisition of land. The aforesaid act of the State amounts to encroachment, in exercise of absolute power which in common parlance is also called abuse of power or use of muscle power. Depriving the writ petitioners of their immovable properties is a clear violation of Article 21 of the Constitution. In a Welfare State, statutory authorities are bound not only to pay adequate compensation but there is also a legal obligation upon them to rehabilitate such persons. Therefore, it is not permissible for any Welfare State to uproot a person and deprive him of his fundamental/constitutional/human rights.
33. Considering these facts, a Division Bench of this Court vide order dated 04.04.2007, while disposing of Writ Petition No. 4954 (M/B) of 1989 and Writ Petition No. 2685 (M/B) of 1996, directed the State Government to either pay compensation to the petitioners therein or return the possession of un-acquired land. Thereafter, the Hon'ble Supreme Court vide order dated 8.10.2007 granted six months' time to comply with the directions made by the High Court. But till today no compensation has been paid to the petitioners in respect of un-acquired land of 09 Bigha and odd though the petitioners are entitled for restoration of possession of land in dispute. However, considering the fact that possession of un-acquired land was taken over on 08.03.1988 by the State of U.P. and thereafter the same was transferred to Lucknow Development Authority, who, in turn, transferred it to U.P. Jal Nigam and U.P. Jal Nigam has made number of constructions thereon and remained in illegal use and occupation of the said land and stood completely developed, therefore, it would be difficult for the respondents to restore the possession. In such a situation, the only option left to the respondents is to make compensation of un-acquired land treating acquisition of un-acquired land.
34. Now the question is as to whether un-acquired land is to be treated as acquired under Section 4 of the Act or Land Acquisition Collector is to make compensation treating it to be acquired under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 as assessed on 23.6.2016.
35. As per Section 24 (1) of the 2013 Act, in cases, where no Award has been made under Section 11 of the 1894 Act, then all provisions of 2013 Act relating to determination of compensation shall apply and no compensation has been paid to the petitioners in terms of the order dated 4.4.2007 passed by this Court. Therefore, by moving representation, the petitioners sought release of land. Pursuant thereto, the State Government initiated steps to purchase the land at a mutually agreed consideration in accordance with the policy vide Government Order dated 19.3.2015 and the petitioners agreed to sell their un-acquired lands to the State Government at the minimum value of registration as prescribed (circle rate) and not at the market rate only in order to settle the long pending dispute. The Committee headed by the District Magistrate, Lucknow met on 23.6.2016 and resolved to purchase the un-acquired land in question in accordance with Government Order dated 19.3.2015 and assessed the compensation accordingly, but no compensation was paid. In the meantime, the State of U.P. altered its stand vide order dated 29.7.2017 whereby, pursuant to a decision taken by the Chief Secretary, Government of U.P., the petitioners were offered as per old Act or in the alternative, an option to take back the possession of the land in question. The petitioners accepted the offer to take back the un-acquired land in question by means of an affidavit and the vacant possession of the un-acquired land be returned back to them.
36. It is also the case of the petitioners that the present petition is based on an entirely distinct cause of action based upon facts/events subsequent, as the earlier judgment was not implemented by the respondents within six months as directed by the Apex Court on 8.10.2007 and in the meantime, Old Act has been repealed and new Act came into force. Thus, the present writ petition filed by the petitioners is maintainable and the writ petitioners are entitled for compensation under the 2013 Act.
37. Now, this is admitted position that neither un-acquired land was acquired nor any Award was made and after commencement of the 2013 Act, the Government assessed the compensation treating it to be acquired under the provisions of 2013 Act on 23.6.2016, but till today, no compensation has been paid to the petitioners and, therefore, the land owners are entitled for compensation under the provisions of 2013 Act and the respondents are directed to assess the compensation and entire compensation due to the petitioners would be calculated either in terms of 2013 Act or as per letter dated 4.4.2016 and minutes of meeting dated 23.6.2016 and this shall be done within a period of two months from the date of receipt of a certified copy of the order, which shall be disbursed to them within one month thereafter.
38. For all these reasons, the writ petition is allowed in part and disposed of, but without any order as to costs.
[Irshad Ali, J.] [Pankaj Kumar Jaiswal, J.] Order Date :- 16.10.2019 lakshman/Ashish