Allahabad High Court
Manne Khan vs State Of U.P. And Ors. on 15 June, 1988
Equivalent citations: AIR1988ALL289, AIR 1988 ALLAHABAD 289, (1988) ALL WC 971
JUDGMENT A. Banerji, C.J.
1. The petitioner has filed this Writ Petition under Article 226 of the Constitution challenging the validity of the proceedings for the acquisition of the land of the petitioner started in pursuance of the notifications under Sections 4 and 6 issued by the State Government under the Land Acquisition Act, 1894, hereinafter referred to as the Act.
2. The notification under Section 4 of the Act is dt. 4th June, 1983 and was published in the U. P. Gazette dt. 6th June, 1983. The provisions of Section 17(1)(1-A) of the Act were made available as also the provisions of Section 17(4), and the provisions for filing objection under Section 5A of the Act were dispensed with. The notification under Section 6 is dt 16th June, 1983 and was published in the U. ,P. Gazette Extraordinary dt. 16th June, 1983, Copies of the notifications under Sections 4 and 6 of the Act are marked as Annexure-1 and 2 to the Writ Petition. The petitioner has challenged these two notifications on a variety of grounds. Firstly, that the provisions of Section 17 of the Act were applied without application of mind at all. Secondly, the plots of the petitioner were neither waste nor arable and yet they were sought to be acquired Thirdly, in regard to urgency, the State Government did not apply its mind with full care and attention, for there was no urgency as the land was sought to be acquired for residential purpose. Fourthly, holding of an enquiry under Section 5A of the Act was mandatory and its dispensation was bad in law. The notification under Section 4 of the Act had not been published in two daily newspapers circulating in the area and the Collector had not caused public notice at any convenient place in the locality. The Collector, Allahabad, had neither issued notice under Section 9(1) nor he served special notice under Section 9(3) to the petitioner and, consequently, the provisions of Section 9 of the Act had been violated The serving of notices under Section 9(3) of the Act in the months of June and July to some of the villagers was not tantamount to service of notice on the petitioner. The non-compliance of the mandatory provisions under Section 9 and the land acquisition proceedings subsequent to Section 9 of the Act made the entire acquisition proceedings invalid and void The award dt. 22-9-1986 passed by the Collector was also vitiated. The period of 15 days from the notification under Section 9(2) of the Act had not also been complied with. Consequently, the petitioner could not take part in the proceedings by filing objection or adducing evidence. In other words, the petitioner's case in the Writ Petition was that the proceedings under the Act was bad in law for non-compliance with the requirements of Section 4(1), Section 6(1), Section 9(1) and Section 9(3) of the Act. The petitioner has also stated that there has been no compliance with the requirements of Sub-Section (3-A) of Section 17 of the Act. That provision requires the acquiring body to tender payment of eighty per cent of the compensation of such land to the persons entitled thereto and pay to them unless prevented by contingency mentioned in Section 31(2) of the Act. It was urged that there has been no compliance with this provision.
3. The petitioner also stated that part of land in plots Nos. 195, 142, 444, 515, 517 and 109/2, all situate in Chak Babura Aleemabad had been declared surplus under Section 10(3) of the Urban Land Ceiling Act, 1976, hereinafter referred to as 'the Ceiling Act', and the Collector had not made any Award on 22-9-1986 in respect of the following areas of the aforementioned plots : --
1 Biswa 14 dhoor of plot No. 19514 Biswa 2 Bigha 2 of plot No. 142 .
14 Biswa 6 dhoor of plot No. 444 3 Biswa 7 dhoor of plot No. 515 16 Biswa 13 dhoor of plot No. 5174 Biswa 7 dhoor of plot No. 109/2 The petitioner further stated that the respondent No. 2 had not made any award in respect of a total area of 2 Bigha 14 Biswa 7 dhoor of the petitioner's land acquired under the notifications under Sections 4 and 6 of the Act. It is further stated that the respondent 2 (Special Land Acquisition Officer, Nagar Mahapalika, Allahabad) had not given possession over these plots of land of the petitioner to respondent 3 (Allahabad Development Authority, Allahabad), and the latter has no right or title to take possession of the area2 Bigha 14 Biswa7 dhoor acquired under the Act. The respondent 2 made the Award dt. 22-9-1986 in respect of village Chak Babura in respect of the land acquired under the Act, but the actual possession had not been taken by respondent 3 till the date of swearing of the affidavit on 19th Nov. 1987 and the possession was on paper only but not in reality.
4. It was further stated that the Award dt. 22-9-1986 had been made without understanding the provision and the effect of the Ceiling Act and the amount awarded was grossly inadequate having regard to the locality and the situation of the land Copy of the Award has been marked as Annexure-10 to the Writ petition. Lastly, it was urged that even the provisions of acquisition of surplus land under Section 10 of the Ceiling Act had not been complied with. The State Government was estopped from taking possession over the land declared surplus under Section 10(3) of the Ceiling Act. Even the amount of compensation under the Ceiling Act ought to have been tendered within six months and even that had not been done. Then it was stated that the petitioner was still in possession of the land in dispute. Even the Award dt. 22-9-1986 was not the Act of respondent No. 2, but was made under instructions of the superior officer and the G. O. issued by the Government. In other words, it was stated that the award made by respondent 2 was illegal under Section 16 of the Act. Lastly, it was stated that on 28-10-1987 some workers, contractors and labourers accompanied by Assistant Engineer of the Allahabad Development Authority reached the plot Nos. 298 and 142 of the petitioner and started surveying and measuring these plots. The petitioner informed the Assistant Engineer that these plots had been released from acquisition and the entire acquisition proceedings had lapsed in respect of his share in these plots. The Assistant Engineer told that he had no instruction from the Land Acquisition officer and the Secretary, Allahabad Development Authority had directed him to lake forcible possession over the plots. Since the cause of action arose on 28-10-1987, the petitioner had not prolonged the matter and had come to this Court on 26-11-1987 and has prayed for a Writ of Certioran quashing the notifications under Sections 4 and 6 of the Act and for quashing the entire acquisition proceedings. The petitioner has also prayed for a writ of mandamus directing the respondents not to acquire the land of the petitioner and for issuing a writ of prohibition prohibiting the respondents from taking the plots of the petitioner mentioned above.
5. The writ Petition was presented in this Court on the 26th Nov. 1987, and on that day the Court directed it to be listed for admission in the week commencing 14th December, 1987. Meanwhile, the counsel for the Allahabad Development Authority and the standing counsel for the State were directed to file counter affidavit. Mr. Mohiley appearing on behalf of the Development Authority stated that possession had already been taken and houses had been built. The petitioner, however, refuted and asserted that he continued to be in possession. The Court, therefore, passed the following order :--
"..... In the circumstances, we direct that in case the petitioner has not been dispossessed he shall not be dispossessed subject to further orders passed by this Court."
6. In the counter affidavit filed by Shri Rajshwar Prasad Sharma on behalf of Allahabad Development Authority, it was stated that an area 2 Bigha 2 Biswa of plot No. 142, 2 Bigha 1 Biswa 10 dhoor of plot No. 195; 2 Bigha 3 biswa of plot No. 444, 10 Biswa of plot No. 515 and 2 Bigha 6 dhoor of plot No. 517 had been given to the Allahabad Development Authority by the Land Acquisition Officer, Allahabad It was further stated that notifications under Sections 4 and 6 were issued for plots Nos. 97, 298, 524 also but possession of plots Nos. 97 and 524 had not been given and acquisition proceedings had lapsed. The possession of plot No. 298 had also not been given to the Allahabad Development Authority due to stay order passed in another writ petition. The Allahabad Development Authority had sent proposals for acquisition of 485 Bighas 19 Biswa 9 Dhoor of land in ten villages towards Naini side including village Chak Babura Aleemabad to the Land Acquisition officer, Allahabad On the recommendation of the Collector, the State Government issued notifications under Sections 4 and 6 of the Act and authorised the Collector. Allahabad under Section 17(1)(1-A) to give possession of the land to Allahabad Development Authority. On 2nd April 1985 the Land Acquisition Officer gave possession of the land to the Development Authority of land measuring 305 Bighas 6 Biswa 17 Dhoor including 232 Bighas 19 Biswas 1 dhoor of land in village Chak Babura Aleemabad. It was asserted that notices were duly sent and possession was taken by the Collector. Allahabad and later the possession of the plots in dispute was handed over to the Allahabad Development Authority. There was no delay in faking actual possession of the land. There was no delay in determining the compensation and the allegation that provisions of Section 17 of the Act have been exercised with mala fide intention are all wrong and based on surmises and conjectures. The land was acquired for residential colony under zone No. 7 integrated Urban Development Plan for Planned Development Scheme as per Master Plan Proposal for the city of Allahabad The decision to dispense with Section 5A was taken because of genuine urgency and after intra-departmental discussion/correspondence. Public notice under Sections 4 and 9 of the Act had been issued and personal service of notice to each and every individual was not necessary at all. As regards compensation, if the petitioner was not satisfied with the award he could move the Collector for a reference under Section 18 of the Act. It was contended that the petitioner sought to challenge the proceeding under Ceiling Act without impleading the Competent Authority as a party to the Writ Petition. It was reasserted that the possession of petitioner's land had been taken and construction work in the area is going on and crores of rupees have been invested in raising the structures, construction of roads, lighting and drains etc. It was false to say that the petitioner was in possession of the land Lastly, it was urged that the writ petition was misconceived and was not maintainable.
7. A rejoinder affidavit of Manney Khan has been filed which controverts those paras of the counter affidavit which run counter to the paragraphs of the original Petition and the same facts have been reiterated The taking of possession on 2nd April, 1987, was squarely challenged.
8. We have heard Shri Prakash Chandra Srivastava, learned counsel for the petitioner, Shri Ashok, Mohiley, appearing for the Allahabad Development Authority and the Standing Counsel for the State of U. P.
9. The dispute in this case centres round the question whether possession of the land notified under Sections 4 and 6 of the Act has been actually taken by the Allahabad Development Authority, whether due notices were given and served on the petitioner and whether there was compliance with the requirements of law in the acquisition proceeding. The question whether possession was actually taken by the Collector and given to the Allahabad Development Authority is also a disputed question. In regard to compensation, it appears that compensation had not been awarded under the provisions of the Act in respect of certain area of plots Nos. 142, 195, 444, 515 and 517. It appears that these areas were declared surplus under the provisions of the Ceiling Act. Such land would vest in the State. Their compensation was to be determined and paid under the provisions of the Ceiling Act. Those lands would always be transferred by the State to the Development Authority. Consequently, awarding of compensation for the said areas under the provisions of the Act did not arise. In our opinion, non-awarding of compensation for the areas of 2 Bigha 2 Biswa of plot No. 142. 2 Bigha 1 Biswa 10 dhoor of plot No. 195; 2 Bigha 3 Biswa of plot No. 444; 10 Biswa of plot No. 515 and 2 Bigha 6 dhoor of plot No. 517 by the land Acquisition officer did not constitute an error in the procedure. Since such land had already been declared surplus under the provisions of Ceiling Act and had become final, the question of making an award in respect thereof did not arise. Compensation for such surplus land would be paid under the provisions of the Ceiling Act. The petitioner should have applied under the provisions of the Ceiling Act for the payment of compensation. The petitioner sought to raise an argument that the provisions of Section 10 of the Ceiling Act had not been complied with and he had not been served with a notice nor paid any compensation under the Ceiling Act. It is for the petitioner to have been alert to safe guard his interest and taken up appropriate proceedings under the Ceiling Act. Even his allegation that he was not served with a notice under the Ceiling Act is neither here nor there. The petitioner has neither impleaded the Competent Authority nor any other officer under the Ceiling Act in this Petition. He has made bald allegations without disclosing relevant facts in this regard The contention of the petitioner in this regard cannot, therefore, compel us to take notice of such facts.
10. The contention of the petitioner that since compensation had not been made under the provisions of the Act in respect of the aforementioned areas of land the, provisions of Section 11A of the Act had come into play is untenable. The mere fact that compensation for those areas had not been awarded by the Land Acquisition Officer will not attract the provisions of Section 11A of the Act. As a matter of fact, when the provisions of the Ceiling Act were invoked and land was declared surplus under that Act then the land so declared surplus vested in the State. Consequently, it was not necessary under the Act to acquire such land once again. The proceeding in that respect stood abrogated But then that land was not left free for the use of the petitioner. It had already been acquired by the State under the Ceiling Act. The State could transfer that land to the Development Authority, which it did Consequently, the Development Authority could use that land for any of the objects and purposes according to the Master Plan. It must be remembered that originally a large area of land was being acquired for the purpose of housing and the provisions of Section 17(1)(1-A) and 17(4) of the Act were invoked Under Sub-section (1-A) of Section 17 of the Act the acquisition is for planned development.
11. All that has happened in this case is that for a large area of land compensation had been awarded in accordance with the provisions of the land Acquisition Act and for a small area of land out of five plots mentioned above, compensation is to be paid under the provisions of the Ceiling Act. The major part of the land was acquired by the State and then transferred to the Development Authority whereas the land declared surplus under the Ceiling Act had also been acquired by the State and transferred to the Development Authority. In this view of the matter, there remained nothing with the petitioner of the plots originally notified under Sections 4 and 6 of the Act. All that had been acquired by the State had been transferred to the Development Authority. In regard to compensation, however, there was a slight change. For the vast area that had been acquired under the provisions of the Land Acquisition Act, Compensation was awarded by the Collector vide Award dt. 22-9-1986. However, for small pieces of land, which had been declared surplus compensation should be paid under the provisions of the Ceiling Act, the rate of which was a pre-determined amount and possibly less than the one awarded under the Land Acquisition Act. But, that would be the position under the law. Both the Land Acquisition Act and the Urban Ceiling Act are Central Acts. The latter act has a non-obstante clause "notwithstanding the provisions of any other law." Consequently, the Urban Ceiling Act would prevail over the Land Acquisition Act. In view of the above, the various questions raised by the learned counsel for the petitioner which have been set out earlier in this petition are irrelevant and do not affect the acquisition proceedings. Further, as seen above, the proceedings under the Ceiling Act have been challenged without impleading the Ceiling authorities as a party and therefore further allegations made in that respect are vague and incomplete. The petitioner ought to have laid clear foundation for challenging the proceedings before the Ceiling authorities which he had not done. We are not inclined to grant him any opportunity now. He is entitled to compensation and he can still apply for the same. There is no question of determining compensation, as under the Act the rate is a fixed one and he would receive compensation accordingly. If he intended to challenge the declaration of the land as surplus, he should have taken recourse to the provisions as are available to him under the Ceiling Act. It is apparent that he has not taken any such proceeding. It is too late in the day to give him any opportunity to take such proceeding.
12. The counter affidavit of the Allahabad Development Authority clearly shows that vast area of the land has been developed and constructed upon. In this view of the matter, it is undeniable that Construction of such housing for a large number of people is essentially a public purpose. It is not proper nor called for on the facts and in the circumstances of the present case to stay the development of the small area of land which is involved in these five plots on the disputed question of fact as to whether the petitioner has been served with a notice or not. We are, therefore, not inclined to issue any writ of certiorari as prayed. We further decline to issue any writ of mandamus as prayed:
13. In the result, therefore, the writ petition fails and is dismissed.