Allahabad High Court
Baijnath Yadav vs State Of U.P. And Ors. on 9 October, 2002
Author: M. Katju
Bench: M. Katju, Rakesh Tiwari
JUDGMENT M. Katju, J.
1. This writ petition and connected writ petitions are being disposed of by a common judgment.
2. Heard learned counsel for the parties.
3. This writ petition has been filed for a writ of certiorari for quashing the notifications dated 7.3.1996 and 8.1.1997 under Sections 4 and 6 of the Land Acquisition Act (Annexures-6 and 7 to the writ petition) so far as they relate to the petitioner's plot No. 133/1 in which the petitioner claims 1/4th share in village Chuppepur, pargana Shivpur, tahsil and district Varanasi.
4. The petitioner is claiming 1/4th share in plot No. 133/1 situate in village Chuppepur, pargana, Shivpur, tahsil and district Varanasi. In paragraph 4 of the petition, it is alleged that on part of the aforesaid land, there are pakka constructions raised sometime in the year 1970 consisting of two rooms, three shops, verandah, etc. Annexure-1 is the photocopy of the alleged site from various angles. The petitioner has alleged that he is living in the said pakka construction with his family and the construction has been regularized by paying compounding fee under the voluntary compounding scheme. It is alleged in paragraph 8 of the writ petition that the petitioner has no other house to live in. The petitioner has taken water, electricity and telephone connection.
5. In paragraph 13 of the writ petition, it is alleged that the State Government Issued a notification dated 7.3.1996 under Section 4(1) read with Section 17(1) of the Land Acquisition Act, copy of which is Annexure-6 to the writ petition, which was published in the U. P. Gazette dated 7.3.1996 vide Annexure-6 to the writ petition. A perusal of the said notification shows that the land is proposed to be acquired for building a residential colony under the planned development scheme of the Varanasi Development Authority (hereinafter referred to as 'V.D.A.'). The notification also states that the Governor is of the opinion that the land is urgently required for the said purpose and hence Section 5A was dispensed with. In paragraph 15 of the writ petition, it is stated that although the notification under Section 4/17 was published on 7.3.1996, the notification under Section 6 was published on 8.1.1997. Hence, it was alleged that there was no urgency for dispensing with proceeding under Section 5A. True copy of the notification under Section 6, dated 8.1.1997 is Annexure-7 to the writ petition.
6. In paragraph 17 of the writ petition, it is stated that under Section 11A of the Land Acquisition Act, an award has to be made within two years of the declaration under Section 6 but in the present case, the award was prepared on 30.7.1999 vide Annexure-8 to the writ petition. Hence, it is alleged that the acquisition proceedings had lapsed.
7. In paragraph 19 of the writ petition, it is stated that the petitioner was assured by the authorities that the constructed portion including the living house, shop etc. will be exempted and hence, the petitioner did not approach this Court earlier. In this connection, the notice dated 25.7.2001 is Annexure-9 to the writ petition.
8. In para 20, it is alleged that the employees/agents of the respondents came on the spot in order to demolish the constructions. They were obstructed by the local residents, and hence an F.I.R. dated 16.8.2001 was lodged against the petitioner and others vide Annexure-10 to the writ petition. However, a final report has been filed vide Annexure-11 to the writ petition.
9. It is alleged that there was no urgent need and hence Section 5A should not have been dispensed with. It is alleged that Section 11A has been violated.
10. Two counter-affidavits has been filed on behalf of the V.D.A. In the counter-affidavit of Ram Dhani Yadav, it is stated in paragraph 3 that the plot in dispute has been legally acquired by the V.D.A. for the construction of the residential colony and the V.D.A. was given possession of the plot in dispute by the Special Land Acquisition Officer, Varanasl, on 1.6.1998. At present, the V.D.A. is !n physical possession of the plot in question and it has constructed its boundary wall and has further developed the acquired land by filling it with mud worth Rs. 18 lacs. Rs. 7 lacs have been spent for the construction of the boundary wall. The petitioner has received Rs. 6,36,632 as compensation on 10.10.2001 after passing of the award dated 30.7.1999. True copy of the order dated 1.6.1998 is Annexure-C.A.-1 to the counter-affidavit. Since the aforesaid property has vested in the V.D.A. and the name of V.D.A. has been entered into the revenue records, the Special Land Acquisition Officer issued a parwana on 16/17.1.2002 to the Tahsildar (vide Annexure-C.A.-2) and as such the petitioner has no right to challenge the notification under Sections 4 and 6 of the Land Acquisition Act.
11. In paragraph 4 of the counter-affidavit, it is stated that the V.D.A. is in possession of the plot and petitioner has received compensation as awarded by the Special Land Acquisition Officer, Varanasi. In paragraph 5 of the counter-affidavit, it is stated that the Special Land Acquisition Officer, Varanasi, in his award dated 30.7.1999, has nowhere stated that there are any constructions on the disputed plot. Since the petitioner has received compensation on the basis of the aforesaid award, therefore, the land in question fully vests in the V.D.A. and the petitioner has no right to challenge the notification under Sections 4 and 6. In paragraph 6 of the counter-affidavit, it is denied that there is any residential house on the plot in dispute. The petitioner had filed an objection against the acquisition of the plot in dispute on 7.12.1999 and the same was dismissed about which the petitioner was informed on 26.12.1999.
12. In paragraph 7 of the counter-affidavit, it is stated that the Special Land Acquisition Officer, Varanasi, has handed over the possession of the plot in dispute and a full-fledged residential Patrakar colony is to be developed by the respondent No. 1 and the construction work is in full swing and the land is vested in the V.D.A. and the petitioner has been paid full compensation. Hence he has no right to challenge the same at such a belated stage.
13. In paragraph 17 of the counter-affidavit, it is stated that in view of the decision of the Supreme Court in Satyendra Prasad Jain v. State of U.P., AIR 1993 SC 2517, the provisions of Section 11A will not be applicable where the acquisition is made under Section 17. It was on the basis of the aforesaid judgment that Government order dated 30.11.1993 was issued vide Annexure-C.A. 3.
14. In paragraph 13 of the counter-affidavit, it is stated that the petitioner was never pressurized to lift the amount of compensation and he never objected to the same. The possession has been taken by the V.D.A. and the land is vested in it. Hence, the petitioner has no right to challenge the notification.
15. A supplementary counter-affidavit has also been filed by the V.D.A. and in paragraph 4, it is stated that other tenure holders whose land was acquired under the notification dated 7.3.1996 and 8.1.1997 had filed Writ Petition No. 20609 of 1998, Mohammad Siddique and Ors. v. State of U. P. and Ors., which was dismissed by this Court on 7.7.1999. True copy of the judgment of this Court dated 7.7.1999 is Annexure-S.C.A. 1. In paragraph 6, it is stated that the award was not challenged by means of reference under Section 18 of the Land Acquisition Act. In paragraph 7, it is stated that the full-fledged colony had already been developed on the disputed land and the V.D.A. is on the verge of allotting the same and any interim order granted in favour of the petitioner will cause irreparable loss to the respondent.
16. We have perused the judgment of this Court in Writ Petition No. 20609 of 1998 dated 7.7.1999 and we are fully in agreement with the said judgment. The land has been acquired and vested in the V.D.A. and this writ petition filed in the year 2002 is highly belated and is liable to be dismissed on this ground itself. Moreover, we find no illegality in the notification under Sections 4 and 6. Building of a residential colony under the planned development scheme is clearly for the public purpose and is urgently required as there is shortage of residential accommodation.
17. In Jage Ram v. State of Haryana. AIR 1971 SC 1033, it was held by the Supreme Court that unless it is shown that there was colourable exercise of power, the Court cannot go behind the declaration of the Government and find out in a particular case whether the purpose for which the land was needed was a public purpose or not. In State of U. P. v. Smt. Pista Devi and Ors., 1986 (4) SCC 251, the Supreme Court held that even if there are some superstructures standing on the land, they cannot be left out from the acquisition. In Ajay Krishan Shinghal and Ors. v. Union of India and Ors., (1996) 10 SCC 721, it was held that acquisition for planned development is a public purpose. In Bal Krishan Gulati v. State of U. P. and Ors., 1991 (2) AWC 1210, it was held that where there is a recital of urgency, the Court should not ordinarily interfere. In Garg Farms and Ors. v. State of V. P. and Ors., 1989 (2) AWC 1137, this Court held that if the Government formed the opinion that the matter was one of urgency under Section 17(2) and it had some material for this opinion, the Court should not interfere. In Kunwar Lal and Ors. v. State of v. P. and Ors., 1989 (1) UPLBEC 772, it was held that dispensation of enquiry under Section 5A depends on subjective satisfaction of the State Government. It was also held that where the declaration has been made by the State Government under Section 6(3) that a particular land is needed for a public purpose, the said declaration shall be conclusive evidence of the fact that it is so needed. The same view has been taken by this Court in Ram Narain Rai v. State of U. P.. 1991 (1) AWC 341.
18. It may be pointed out that Section 3(a) of the Land Acquisition Act states :
(a) the expression 'land' includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to earth."
The above definition shows that even building and trees will be deemed, by a legal fiction, to be land for the purpose of the Land Acquisition Act as they are attached to or permanently fastened to the earth vide Chaturbhuj Pande v. Collector, AIR 1969 SC 255 (paras 8 and 9) ; S. P. Gupta v. State of U. P., 1980 ACJ 583, etc. Hence, it cannot be said that when land is being sought to be acquired, the building or trees standing thereon have to be exempted. No doubt compensation has to be given for the building and trees also, but it does not mean that exemption from acquisition must be granted to the building or trees or the land on which the building stands. If such a view is taken it can disrupt the entire scheme for which the land is being acquired.
19. It may be noted that Writ Petition No. 20609 of 1998 had been filed in the year, 1998 whereas these three writ petitions have been filed in the year, 2002. Thus, they are clearly belated and, it is not open to the petitioners to challenge the notifications under Sections 4 and 6 at this late stage.
20. As regards the plea of the petitioner that they have residential plots, we have discussed this aspect in the decision of Ram Charittar and Ors. v. State of U. P. and Ors. decided on 4.10.2002 and have held that even buildings or trees can be acquired under the Land Acquisition Act because the definition of 'land' under Section 3(a) of the Land Acquisition Act by a legal fiction includes building and trees.
21. Thus, there is no force in these petition and they are dismissed. The interim orders are vacated. No order as to costs.