Allahabad High Court
Smt. Hirawti Devi And 46 Others vs State Of U.P. And 4 Others on 1 November, 2019
Bench: Bala Krishna Narayana, Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 4 Case :- WRIT - C No. - 35219 of 2019 Petitioner :- Smt. Hirawti Devi And 46 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Krishna Mohan Misra,H.R. Misra (Sr. Adv.) Counsel for Respondent :- C.S.C.,Ravi Prakash Pandey Hon'ble Bala Krishna Narayana,J.
Hon'ble Prakash Padia,J.
1. Heard Sri H. R. Misra, learned Senior Counsel assisted by Sri K. M. Misra, learned counsel for the petitioners, learned Standing Counsel for the State-respondents and Sri Ravi Prakash Pandey, learned counsel appearing for the respondents no.4 and 5.
2. The petitioners have preferred the present writ petition with the following main prayer :-
"(i) issue a writ, order or direction in the nature of mandamus commanding the respondent no.1 to take appropriate decision, within a fixed time-frame as may be fixed by this Hon'ble Court, upon the reference made by the respondent no.2, i.e., the Collector/District Magistrate, Varanasi dated 5.5.2017 (Annexure no.7 to this petition) in regard to the petitioners' claim for de-notifying their land from acquisition, especially, in view of approval of the proposal of in that regard by the Board of Varanasi Development Authority (VDA), Varanasi in its meeting dated 25.1.2019, being evident from the letter of the Vice-Chairman, VDA dated 13.2.2019 (Annexure no.10 to this writ petition)."
3. The facts in brief as contained in the writ petition are that the petitioners and their ancestors purchased residential plots situated in Village- Lalpur, Pargana-Shivpur, District Varanasi from Shiv Shanker Sahkari Avas Samiti Ltd., Varanasi, by means of separate registered sale deeds executed between the years 1985 to 1992. Subsequently the name of the petitioners/their ancestors were also mutated in the revenue records. All the petitioners are recorded owners-in-possession of the land in question and also constructed their residential houses over the plots in question.
4. The State Government issued a notification under Section 4(1) read with Section 17(1) of the Land Acquisition Act 1894 (hereinafter referred as Act, 1894) on 10.7.1992, which was followed by notification under Section 6(1) of the said Act dated 8.7.1993 by which an area 145.566 acres were acquired. The aforesaid notifications were challenged by the petitioners before this Court being Writ C No.31884 of 1993 (Smt. Hirawati Devi & others Vs. State of U.P. and others). The aforesaid writ petition was partly allowed by another Coordinate Bench of this Court vide its judgement and order dated 21.7.2017. The operative portion of the judgement is reproduced hereinbelow :-
"33. Further declaration under Section 6 was made after another one year i.e. on 8th July 1993. As already said, possession has been taken admittedly on 18.8.1994 and 28.7.1995. This all shows that as a matter of fact there was no such urgency where respondents could not have waited for a few weeks or months so as to hold an inquiry and give opportunity of hearing to all tenure holders or land owners whose land was proposed to be acquired. Exercise of power under Section 17 (1) and (4) by dispensing with inquiry under Section 5-A of Act, 1894 therefore, is clearly illegal, founded on no material whatsoever, arbitrary and vitiates the proceedings of acquisition.
34. In view of above discussions, writ petition is partly allowed to the extent that impugned notifications, to the extent of land belong to petitioners, in so far as it has dispensed with inquiry under Section 5-A of Act, 1894, are hereby set aside. However, respondents shall be at liberty to take further action from the stage of giving opportunity to land owners by submitting their objections under Section 5-A and after considering the same respondents may proceed in accordance with law.
35. Petitioners shall be entitled to costs against respondents-1 to 3, which we quantify to Rs.25,000/-. "
5. After the aforesaid judgement was passed the then District Magistrate, Varanasi/respondent no.2 has taken a decision and submitted its report to the State Government/respondent no.1 dated 5.5.2017 stating therein that Varanasi Development Authority, Varanasi, is not interested in acquisition of the petitioners' land and does not want any fresh acquisition proceedings to be initiated. It appears that after the aforesaid letter was written by the respondent no.2 to the respondent no.1, the respondent no.1 wrote a letter dated 22.5.2018 to the Vice Chairman, Varanasi Development Authority, Varanasi/respondent no.4 raising certain queries with regard to the petitioners' land. In response to the queries raised by the respondent no.1. A letter dated 10.9.2018 was written by the respondent no.4 to the respondent no.1 stating therein that the petitioners are in possession over the land in question and the petitioners have built their houses over the land in question before issuance of notifications under Section 4 and 6 of the Act, 1894. Subsequently aforesaid decision of the respondent no.4 was also approved in the board meeting of the Development Authority, which was taken place on 23.1.2019. The aforesaid decision was duly communicated by the respondent no.4 to the respondent no.1 vide its letter dated 13.2.2019, copy of which is appended as annexure 10 to the writ petition. After the aforesaid communication was made a notice dated 29.3.2019 was issued by the present District Magistrate, Varanasi, to the petitioners. Ultimately a decision was taken by the respondent no.2 on 18.7.2019 holding that since the matter has already been referred by his predecessor to the State Government on 5.5.2017 itself, therefore, nothing in that regard remains to be done at his level. It is argued that although earlier District Magistrate has already referred the matter before the respondent no.1 vide its letter dated 5.5.2017 and although the same was reiterated by the present District Magistrate, Varanasi, vide its letter dated 18.7.2019 till date no decision has been taken by the respondent no.1 on the same.
6. In the circumstance it is argued by Sri H. R. Mishra, learned Senior Counsel that a mandamus be issued to the respondent no.1 to take appropriate decision in the matter.
7. Heard learned counsel for the parties.
8. With the consent of learned counsel for the parties, the writ petition is being disposed of at the admission stage itself.
9. From perusal of the facts as narrated above it is clear that the notifications issued by the State Government under Section 4 read with Section 17 of the Act, 1894 dated 10.7.1992 has already been struck down by a Division Bench of this Court in its judgement and order dated 21.7.2016 passed in the writ petition filed by the present writ petitioners. The operative portion of the judgement in the aforesaid case has already been reproduced hereinabove. After the aforesaid judgement was delivered a decision was also taken by the then District Magistrate, Varanasi, on 5.5.2017 to de-notify the land of the petitioners. Subsequently again now a decision has been taken by the present District Magistrate, Varanasi, on 18.7.2019 stating therein that the decision has already been taken by the then District Magistrate on 5.5.2017 hence no further decision is required to be taken. It further appears from perusal of the record that although the matter has already been referred by the respondent no.2 before the respondent no.1 but till date no decision has been taken and the same is pending.
10. Without entering into the merits of the case, we dispose of the present writ petition permitting the petitioners to make a fresh representation ventilating all their grievances before the respondent no.1/Principal Secretary, Housing & Urban Development, U.P. Shasan, Lucknow, along with certified copy of this order within a period of three weeks from today. If such a representation is filed, the respondent No.1 will pass appropriate orders on the same expeditiously and preferably within a period of three months thereafter, in accordance with law.
Order Date :- 1.11.2019 Pramod Tripathi