Allahabad High Court
Jai Kishan And 4 Others vs State Of U.P. And 2 Others on 23 February, 2021
Bench: Sanjay Yadav, Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 9 Case :- WRIT - C No. - 5702 of 2021 Petitioner :- Jai Kishan And 4 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Vikash Chandra Tiwari Counsel for Respondent :- C.S.C.,Anjali Upadhya,Ramendra Pratap Singh Hon'ble Sanjay Yadav,J.
Hon'ble Jayant Banerji,J.
The petitioners, vide present petition under Article 226 of the Constitution of India seeks quashment of notification issued under Section 4 read with Section 17(4) of the Land Acquisition Act, 1894 dated 1.3.1989 and subsequent proceedings thereunder and a direction to the respondents to exempt/release the petitioners' land notified and acquired vide the said notification/proceedings. That by said notification 534 acres of land in District Bulandshahar, Uttar Pradesh was notified for public purpose namely for a planned industrial development in District Bulandshahar. The land of the petitioner bearing Khata No. 187 field no. 273 admeasuring 3-8-19, Field no. 277-C admeasuring 0-7-0, Field no. 286 admeasuring 5-12-0, Field no. 533 admeasuring 3-12-9 situated in the revenue area of Village Accher, District Gautam Budh Nagar was also notified and acquired. The quashment of notification as well as proceedings are sought on the anvil of the provisions contained under Section 11A of the Act of 1894.
At the outset, it is submitted by learned counsel for the respondents that the challenge put forth and the relief sought is no more res integra and has been settled at rest by a Full Bench decision of this High Court in Gajraj vs. State of Uttar Pradesh and batch of writ petitions decided on 21.10.2011 (reported in 2011 (11) 1 Allahabad Daily Judgements). It is urged that the judgement of Gajraj (supra) was subject matter of challenge before Hon'ble Supreme Court and has been affirmed by Judgement dated 14.5.2015 reported in Savitri Devi vs. State of Uttar Pradesh and Others and batch of writ petitions; (2015) 7 SCC 21.
It is observed from the decision in Gajraj (supra) that Full Bench was in seisin with similar issues as raised in the present petition, viz:
"1. Object and Purpose of the 1976 Act: Whether the development of industries is the dominant purpose and object of U.P. Industrial Area Development Act, 1976?
2. Whether Acquisition Compulsory: Whether for carrying out the development of industrial area under 1976 Act, it is compulsory and necessary to acquire the land by the Authority?
3. Delay and Laches: Whether the delay and laches in the facts of the present case can bar the invocation of Constitutional remedy under Article 226 of the Constitution of India?
4. National Capital Regional Planning Board Act, 1985, its Consequences: Whether the Authority can carry out development, utilise the land acquired as per its Master Plan 2021 without its approval/clearance by National Capital Regional Planning Board, and what is effect on its function of land acquisition after enforcement of the 1985 Act?
5. Invocation of Sections 17(1) and 17(4): Whether invocation of Sections 17(1) and 17(4) of the Land Acquisition Act and dispensation of inquiry under section 5A was in accordance with law in the cases which are under consideration?
6. Pre-notification and Post-notification delay: Whether delay caused before issuance of notification under Section 4 and delay caused subsequent to notification under Section 4 can be relied for determining as to whether urgency was such that invocation of Sections 17(1) and 17(4) was necessary?
7. Colourable Exercise of Power: Whether acquisition of land are vitiated due to malafide and colourable exercise of powers?
8. Taking of Possession: Whether the possession of the land acquired was taken under section 17(1) of the Land Acquisition Act in accordance with law?
9. Vesting: Whether after taking possession under section 17(1) of the Act the challenge to the notifications under section 4 read with 17(1) and 17(4) and Section 6 cannot be entertained due to the reason that land which has already been vested in the State cannot be divested?
10. Section 11A: Whether acquisition under challenge has lapsed under section 11A of the Act due to non declaration of the award within two years from the date of publication of the declaration made under section 6?
11. Section 17(3A): Whether non payment of 80% of the compensation as required by Section 17(3A) of the Land Acquisition Act is fatal to the acquisition proceedings?
12. Waiver: Whether the petitioners who have accepted compensation by agreement have waived their right to challenge the acquisition proceedings?
13. Acquiescence: Whether the petitioners due to having accepted the compensation by agreement have acquiesced to the proceedings of land acquisition and they are estopped from challenging the acquisition proceedings at this stage?
14. Third Party Rights, Development & Constructions: Whether due to creation of third party rights, development carried out by the Authority and developments & constructions made by the allottees on the acquired land subsequent to the acquisition, the petitioners are not entitled for the relief of quashing the notifications under Sections 4 read with Sections 17(1) and 17(4) and Section 6 of the Act?
15. Effect of Upholding of some of the notifications in some writ petitions earlier decided: What are the consequences and effect of earlier Division Bench judgment upholding several notifications which are subject matter of challenge in some of these writ petitions?
16. Conflicts in views of Division Benchs: Which of the Division Bench decisions i.e. Harkaran Singh's case holding that invocation of Section 17(1) and 17(4) was invalid or earlier Division Bench judgment in Harish Chand's case holding that invocation of section 17(1) and 17(4) was in accordance with law, has to be approved?
17. Relief: To what relief, if any, the petitioners are entitled in these writ petitions?"
In respect of issue no. 10 as to "whether acquisition under challenge has lapsed under Section 11A of the Act due to non declaration of the award within two years from the date of publication of the declaration made under Section 6," Their Lordships were pleased to hold:
"372. Learned counsel for the petitioners have submitted that after publication of declaration under Section 6 of the Act, in none of the cases award has been made under Section 11 within two years from the date of publication, hence, the entire proceedings for acquisition of the land has lapsed. Section 11A of the Act is as follows:
11A. Period within which an award shall be made. - (1) The Collector shall make an award under section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse:
Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984 the award shall be made within a period of two years from such commencement.
373. Learned counsel for the respondents refuting the submission made by counsel for the petitioners contends that in all the acquisitions under challenge Section 17(1) was invoked and the possession was taken of the land after issue of notice under Section 9 and land has vested in the State under Section 17 sub Section (1) hence Section 11-A has no application.
374. Learned counsel for the respondents submitted that Section 11 A applies in the cases where Section 17 has not been invoked and in cases where Section 17 has been invoked, there is no applicability of Section 11-A.
375. Learned counsel for the respondents has placed reliance on the judgments of the Apex Court of Satendra Prasad Jain Vs. State of U.P., 1993 (4) SCC 369 and Banda Development Authority Vs. Motilal Agarwal, 2011 (5) SCC 394.
376. We have considered the submission of the learned counsel for the parties. In Satendra Prasad Jain's case the issue was considered and it was held by the Apex Court that when Section 17 sub Section (1) is applied by reason of urgency, the Government takes possession of the land prior to the making of the award under Section 11 and thereupon the owner is divested of the title to the land which is vested in the Government as laid down in paragraph 15. The said view was reiterated by the Apex Court in Awadh Bihari Yadav and others Vs. State of Bihar and others, 1995 (6) SCC 31. The recent judgment of Banda Development Authority (supra) has also occasion to consider the said issue, relying on the decision of Satendra Prasad Jain. The argument on the basis of Section 11-A was repelled. In the present bunch of cases the State Government has invoked urgency clause under Section 17(1) and possession has been taken in all the cases exercising urgency power. The ratio laid down by Satendra Prasad Jain's case is fully attracted and the submission made by the learned counsel for the petitioners on the basis of Section 11-A can not be accepted.
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382. There being difference of opinion the matter was directed to be placed before Hon. Chief Justice for reference to larger bench to resolve the divergent views expressed in both the judgments and to answer the questions of law framed. From the above, it is clear that the issue is yet to be considered by larger Bench of the Apex Court on Section 17(3A). However, we are bound to follow the law as it exists today which is a binding precedent under Article 141 of the Constitution of India. The judgment in Sateyendra Prasad Jain will hold the field hence the submission of the petitioner at present that Section 17(3) A is mandatory, non compliance of which vitiate the acquisition can not be accepted."
The said decision by the Full Bench was subjected to challenge before Hon'ble Supreme Court and has been affirmed by judgement dated 14.5.2015 reported in Savitri Devi Vs. State of Uttar Pradesh and Others and batch of writ petitions; (2015) 7 SCC 21, wherein their Lordships were pleased to hold:
"62. This special leave petition is preferred against the judgment dated 20.01.2012 passed by the High Court in CMWP No. 3979/2012 which was preferred by the petitioners herein challenging the acquisition of their land. The Government had issued notification under Section 4 read with Section 17(4) on 18.12.2001 and declaration under Section 6 was issued on 30.03.2002.
63. The writ petition for quashing of the aforesaid notification was filed on 05.01.2012 i.e. nearly ten years after the declaration issued under Section 6 of the Act. The High Court vide impugned judgment has dismissed the writ petition on the aforesaid ground of delay and laches. The High Court has also noted that a Full Bench of the said Court, in a bunch of writ petitions with leading case being Writ Petition No. 37443 of 2001 (Gajraj and others v. State of U.P. and others) decided on 21.10.2011, had dismissed all those petitions which were filed belatedly on the ground of inordinate delay and laches. Incidentally, special leave petitions were filed by some of those whose writ petitions were dismissed on the ground of delay and this Court has dismissed those petitions/appeals affirming the said decision.
64. The judgment in Gajraj and others (supra) came to be challenged by the State as well as the land owners. All these petitions/appeals, including the appeals filed by the land owners, have been dismissed by this Court affirming the view taken by the Full Bench in the said case.
65. Accordingly, the present special leave petition also stands dismissed. Special Leave Petition (Civil) No. 9029 of 2015.
66. This special leave petition is preferred against the judgment dated 29.11.2011 passed by the High Court in CMWP No. 68459/2011, which was preferred by the petitioners herein challenging the acquisition of their land. The Government had issued notification under Section 4 read with Section 17(4) on 05.10.2002 and declaration under Section 6 of the Land Acquisition Act was issued on 30.10.2002.
67. The High Court has disposed of the writ petition vide its order dated 29.11.2011 taking note of a Full Bench decision in a bunch of writ petitions with leading case being Writ Petition No. 37443 of 2001 (Gajraj and others v. State of U.P. and others) decided on 21.10.2011. Since counsel for both the parties in the High Court had agreed that the writ petition of the petitioners was also covered by the judgment in Gajraj and others (supra), the High Court has disposed of the writ petition of the petitioners in terms of the direction issued by the Full Bench in the aforesaid case."
It is further observed from the decision in Gajraj (supra) that certain petitions relating to Villages Nithari, Sadarpur, Khoda, Sultanpur, Chaura Sadatpur and Alaverdipur were dismissed on the ground of inordinate delay and latches.
"482. In view of the foregoing conclusions we order as follows:
1. The Writ Petition No. 45933 of 2011, Writ Petition No. 47545 of 2011 relating to village Nithari, Writ Petition No. 47522 of 2011 relating to village Sadarpur, Writ Petition No. 45196 of 2011, Writ Petition No. 45208 of 2011, Writ Petition No. 45211 of 2011, Writ Petition No. 45213 of 2011, Writ Petition No. 45216 of 2011, Writ Petition No. 45223 of 2011, Writ Petition No. 45224 of 2011, Writ Petition No. 45226 of 2011, Writ Petition No. 45229 of 2011, Writ Petition No. 45230 of 2011, Writ Petition No. 45235 of 2011, Writ Petition No. 45238 of 2011, Writ Petition No. 45283 of 2011 relating to village Khoda, Writ Petition No. 46764 of 2011, Writ Petition No. 46785 of 2011 relating to village Sultanpur, Writ Petition No. 46407 of 2011 relating to village Chaura Sadatpur and Writ Petition No. 46470 of 2011 relating to village Alaverdipur which have been filed with inordinate delay and laches are dismissed."
The said verdict has also been upheld by the Hon'ble Supreme Court in Savitri Devi's case (supra);
"24. The High Court discussed the issue of laches and delays under Issue No. 3, as mentioned above, after referring to various judgments of this Court and culling out the principles contained therein on that basis. The High Court accepted the plea of inordinate delay insofar as acquisition of land in respect of village Nithari, Village Chauyra Sadedpur, Village Khoda, Village Sultanpur are concerned. These writ petitions are dismissed on the ground of delay. In respect of other villages, the Court repelled the contention of delay raised by the department, accepting the explanation given by land owners of those villages that they did not oppose the acquisition earlier at the time of issuance of notification as the land was taken for industrial development. However, it is only when these land owners had come to know that instead of developing the land for the purpose for which it was acquired, the acquiring authority had transferred the land to the private persons and builders, that these land owners felt aggrieved and cheated and, therefore, there was sufficient explanation for coming to the Court at a time when these land owners discovered that the acquired land had been transferred to private persons. The Court, therefore, held that such writ petitions were to be entertained on merits, ignoring the delay.
25. Some of the appeals are filed by the land owners in respect of aforesaid villages where their petitions are dismissed on the ground of delay and laches. We are of the opinion that their writ petitions were rightly rejected by the High Court applying the principle of delays and laches. We are, thus, dismissing these appeals, upholding the order of the High Court."
Though, it is contended on behalf of the petitioner that the view in Satendra Jain; (1993) 4 SCC 369 was doubted in Delhi Airtech Services Priviate Limited and Another Vs. State of Uttar Pradesh and Another: (2011) 9 SCC 354, however, it is noticed from the decision in Gajraj (supra) that their Lordships considered the same in paragraph 382 of the Gajraj (quote supra).
In view whereof, since the issue raised in the present petition is squarely covered by decision rendered by this Court in Gajraj (supra), we are not inclined to cause any indulgence.
Consequently, petition fails and is dismissed.
Order Date :- 23.2.2021
A. V. Singh
(Jayant Banerji, J.) (Sanjay Yadav, J.)