Allahabad High Court
Ram Surat Chauhan vs State Of U.P. And 4 Others on 1 November, 2019
Equivalent citations: AIRONLINE 2019 ALL 2474
Bench: Bala Krishna Narayana, Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 4 Case :- WRIT - C No. - 35211 of 2019 Petitioner :- Ram Surat Chauhan Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Krishna Mohan Misra,Sri. H.N. Misra (Sr. Advt.) Counsel for Respondent :- C.S.C.,Ravi Prakash Pandey Hon'ble Bala Krishna Narayana,J.
Hon'ble Prakash Padia,J.
(Per: Hon'ble Prakash Padia,J.)
1. Heard Sri H.R. Mishra, learned Senior Counsel assisted by Sri Krishna Mohan Mishra, learned counsel for the petitioner, learned Standing Counsel for respondent Nos.1, 2 and 3 and Sri Ravi Prakash learned counsel for respondent Nos. 4 and 5
2. The petitioner has preferred the present writ petition with the following prayers:-
"(i) issue a writ, order or direction in the nature of mandamus the State Government, i.e., the respondent No.1 to take fixed by this Hon'ble Court, in regard to de-notifying petitioner's land in question from acquisition, keeping in view the reference made by the then District Magistrate/Collector, Varanasi dated 5.5.2017 as well as the decision taken by the present District Magistrate/Collector, Varanasi dated 18.7.2019 in case of similarly situated persons (petitioners of writ petition no.31884/1993).
(ii) issue a writ, order or direction in the nature of mandamus commanding the respondents not take any coercive action for the petitioner's dispossession from the property in question, i.e. Arazi No.373/4 (area 72 decimal) situate in Village lalpur (Meerapur Basahi), Pargana Shivpur, District Varanasi over which his residential house constructed in year 1974 exists and wherein he has been residing with his family; unless and until, his claim is decided by the State Government, i.e., respondent no.1.
(iii) issue such other and further writ, order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
(iv) award cost of the petition in favour of the petitioner."
3. The partitioner from the time of his ancestors has been recorded owner in possession in respect of Arazi No.373/4 (area 72 decimal) situate in Village lalpur (Meerapur Basahi), Pargana Shivpur, District Varanasi over which his house was constructed in 1974. In order to acquire 147.734 acre of land for construction of Lapur Housing Scheme through Varanasi Development Authority, notification under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as "the Act, 1894) was issued on 10.7.1992 which was followed by notification under Section 6(1) of the Act, 1894 on 8.7.1993. By the aforesaid notifications, area measuring 145.566 acre was finally acquired. Some of the petitioners along with other similar situate persons challenged the aforesaid notifications by filing Writ Petition No.35576/1993 (Roop Narain and others Vs. State of U.P. and others) on the ground that although there was no material on record to show the actual urgency, the State Government, with complete non-application of mind and without recording its satisfaction in that regard illegally and arbitrarily dispensed with the enquiry as contemplated under Section 5-A in purported exercise of powers under Sections 17(1) and 17(4) of the Act, 1894. Apart from the same, another writ petition was filed challenging the same notification before this Court being Writ Petition No.31884 of 1993 (Smt. Hirawati Devi and 37 others Vs. State of U.P. and others). The aforesaid writ petition was finally allowed by the Division Bench of this Court vide its judgement and order dated 21.7.2016, copy of which is appended as Annexure No.4 to the writ petition. The aforesaid writ petition was partly allowed by this Court. The operative portion of the judgment passed in Smt. Hirawati Devi (supra) is reproduced below:-
"32. When we examined the material available with State Government to justify dispensation of inquiry under Section 5-A, we found that in counter affidavit and supplementary counter affidavit virtually nothing has been placed to demonstrate that any such urgency was existing, justifying dispensation of inquiry. Respondents have also placed before us original record of acquisition and we have perused the same. Unfortunately, the alleged original record also contains only copies of application dated 6.6.1990, Collector's letter dated 16.6.1992, award dated 8.10.1997, copies of notifications dated 8th July 1993, 28th January 1993 and 10th July 1992 and the documents showing taking of possession of acquired land. From the order-sheet of V.D.A. record, we find that a proposal for constructing residential colony at Village Lalpur was conceived sometime in 1988. Since land at Village Lalpur was agricultural land hence, matter was examined to seek exemption of acquisition of such land for residential purposes. The proposal was ultimately approved by Chief Minister on 30.3.1990 but in the entire order-sheet there is nothing to justify as to why inquiry under Section 5-A ought not to have been held or that the acquisition of land was urgent and immediate. Moreover proposal was made by V.D.A. on 6th June 1990 whereupon Collector took almost two years in making recommendation to Government vide letter dated 16.6.1992. Thereafter, notification under Section 4 was published on 10th July 1992. It was published in newspapers after about four months i.e. on 9.11.1992. It appears that on a mere mention in the application dated 6.6.1990 that possession is urgently needed, without any further inquiry and application of mind on the relevant facts, in a mechanical manner, respondent State Government acted upon to invoke powers under Section 17(1) and (4) and dispensed inquiry under Section 5-A.
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/-.
4. It is argued that after the aforesaid order was passed in the Writ Petition filed by Heerawati (supra), notices were issued to the petitioners in that writ petition inviting their objections under Section 5-A of the Act, 1894, thereafter the District Magistrate Varanasi heard the matter in the meeting held on 22.3.2017. Subsequently a spot inspection of land of the petitioners of Hirawati case was carried out by the three members committee of inspection team and it was decided by the Varanasi Development Authority that 35 out of 38 petitioners have constructed their houses and three petitioners surrounded their lands by constructing boundary walls as such the land has remained no more useful for the Varanasi Development Authority. The aforesaid decision was communicated by the Varanasi Development Authority to the then Collector Varanasi vide its letter dated 10.04.2017. Thereafter the then Collector Varanasi submitted its report on 5.5.2017 before the State Government, i.e., respondent No.1 stating therein that as the Varanasi Development Authority is not interested in acquisition of their land, hence there is no justification for fresh acquisition proceedings in respect of their land.
5. The controversy involved in Writ Petition No.35576 of 1993 which was filed by some of the petitioners and others was exactly similar as of Writ Petition No.31884 of 1993. In view of the same, the writ petition filed by the present petitioner as Writ Petition No.35576 of 1993 was also partly allowed by another Co-ordinate Bench of this Court vide its order dated 22.11.2016, copy of which is appended as Annxure No.6 to the Writ Petition. It is argued that the judgement passed in the aforesaid writ petition was duly served by the petitioners in the Office of District Magistrate Varanasi as well as Varanasi Development Authority/respondent nos.2 and 3 along with application dated 17.3.2017.
6. It is stated that in place of serving notice as provided under Section 5-A of the Act, 1894, an illegal manner a notice dated 6.6.2017 was served upon the petitoner for demolition of their construction by the Zonal Officer. Varanasi Development Authority. Against the aforesaid order,an appeal was preferred by the petitioners before the Commissioner Varanasi Division Varanasi in which an order was passed on 23.2.2018 staying demolition proceedings. It is further argued that in terms of the order dated 21.7.2016 passed in Writ C No.31884 of 1993, the District Magistrate proceeded to hear the matter and issue notice on 29.3.2019 to the petitioners of that writ petition as well as the other concerned authority to present in his camp office on 29.3.2019. When the petitioner came to know that hearing is going on in respect of identical order passed by this Court dated 21.7.2016, the petitioner submitted an application on 1.4.2019 before the Special Land Acquisition Officer, Varanasi requesting him to place the petitioner's file before the District Magistrate for hearing.
7. It is further argued that the matter of the petitioner should also be heard and decided by the District Magistrate (Varanasi) in terms of the order dated 21.7.2016 passed in Writ Petition No.31884/1993 but to the utter surprise, the said respondent proceeded to hear the matter pertaining to only in respect of writ petition filed by the petitioners in Writ Petition No.31844 of 1993 and has taken a decision vide dated 18.7.2019 holding that since the entire matter has already been referred by his predecessor to the State Government on 5.9.2017 itself, therefore, nothing in this regard remains to be done at his level. In this view of the matter, it is argued that once a decision has been taken by another Co-ordinate Bench of this Court in the writ petition filed by the petitioners being Writ Petition No.35576 of 1993 which was decided on 22.11.2016 in terms of the order passed in the earlier Writ Petition No.31884 of 1993 then it was incumbent upon the District Magistrate Varanasi to refer the petitioner's matter also to the State Government for taking a decision in regard to denotification of their land in question but the petitioner has been subjected to arbitrary and discriminatory treatment.
8. It is further argued that the case of the petitioner also stands on the same footing like that of petitioners of Writ Petition No.31884 of 1193 since the order passed in the writ petition filed by the petitioners is identical as passed in the writ petition filed by the petitioner, the respondent No.2 is duty bound to refer the matter of the petitioner before the State Government. It is argued that the action on the part of the respondent No.2 in not referring the matter of the petitioner before the State Government is not only arbitrary, discriminatory and violative of Article 14 of the Constitution of India but also contemptuous.
9. Heard learned counsel for the parties. With the consent of learned counsel for the parties, the matter is being heard and disposed of finally at the admission stage itself.
10. From perusal of the record, it is clear that earlier to the writ petition filed by the petitioner, a writ petition being Writ Petition No.31884 of 1993 was filed by one Hirawati Devi which was finally decided on 21.7.2016. Following the judgement passed in the aforesaid writ petition, the writ petition Writ C No.35576 of 1993 (Roop Narain and others Vs. State of U.P. and others) was decided by this Court vide its judgement and order dated 22.11.2016. The controversy involved in both the writ petitions was identical. Insofar as the order passed in the case of Hirawati Devi (supra) is concerned, the matter has already been referred before the State Government. Insofar as the case of the petitioner is concerned, no decision has yet been taken by the respondent No.2. In view of the same, the petitioner has preferred the present writ petition.
11. It further appears from perusal of the record that till date no decision has been taken by the respondent No.2 insofar as the case of the petitioner is concerned. In this regard, representations were also made by the petitioners before the various authorities from time to time but no orders were passed on the same although in similar situation, a decision has already been taken by the respondent No.2 vide its order dated 18.07.2019, copy of which is appended as Annexure 12 to the writ petition.
12. Without going into the merits of the case, we dispose of the present writ petition permitting the petitioner to submit a fresh representation ventilating his grievances before respondent. 2, along-with a certified copy of this order as well as a copy of the decision taken by him on 18.07.2019 within a period of three weeks from today. If such, representation is made, respondent no. 2 is directed to pass appropriate orders on the same in accordance with law, as expeditiously as possible preferably within a period of three months from the date of filing of such representation by the petitioners before him.
Order date:- 1.11.2019 saqlain