Allahabad High Court
Smt. Madhuri Srivastava vs State Of U.P. & Others on 10 May, 2016
Bench: V.K. Shukla, Prabhat Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserve AFR Reserved on: 29.04.2016 Delivered on: 10.05.2016 In Chamber Case :- WRIT - C No. - 61449 of 2009 Petitioner :- Smt. Madhuri Srivastava Respondent :- State Of U.P. & Others Counsel for Petitioner :- Ranjit Saxena Counsel for Respondent :- C.S.C.,Ramendra P. Singh; Case :- WRIT - C No. - 63268 of 2009 Petitioner :- Rakesh Kumar Sharma & Ors. Respondent :- State Of U.P. & Others Counsel for Petitioner :- Ranjit Saxena Counsel for Respondent :- C.S.C.,Ramendra P. Singh; Case :- WRIT - C No. - 49997 of 2009 Petitioner :- Ram Singh Respondent :- State Of U.P. & Others Counsel for Petitioner :- Dheeraj Singh Bohra Counsel for Respondent :- C.S.C.,Ramendra P. Singh and Case :- WRIT - C No. - 53353 of 2009 Petitioner :- Brijendra Singh & Others Respondent :- State Of U.P. & Others Counsel for Petitioner :- Pramod Dayal,Pankaj Dubey,Piyush Sharma Counsel for Respondent :- C.S.C.,Ramendra P. Singh Hon'ble V.K. Shukla,J.
Hon'ble Prabhat Chandra Tripathi,J.
(Oral : V.K. Shukla, J.) In all the abovemetioned writ petitions in question, as common question of law has been engaging the attention of this Court, the Writ Petitions in question are being decided collectively and Writ Petition No.61449 of 2009 is being treated to be leading writ petition.
By means of Writ Petition No.616449 of 2009, Smt. Madhuri Srivastava w/o Late Dr. R.N. Srivastava is before this Court for following reliefs:
(i) Issue a writ, order or direction in the nature of certiorari quashing the part of decision of the Board of Directors of Noida dated 07.01.1998 (Annexure-4) and approval of State Government dated 02.03.2009 (Annexure-6) by which the persons whose land was acquired and who were 'Gair Pushtaini' have been denied the additional compensation of Rs.310/- per sq. yard, 15% (Rs.57/- per sq. yard) rehabilitation bonus, on the compensation amount and 10% area of acquired land of the petitioner may be given to her.
(ii) Issue any other writ, order or direction in the nature as the Hon'ble Court may deem fit and proper under the circumstances of this case.
(iii) Award the cost of the petition to the petitioner.
Brief background of the case as is emanating, in the present case, is that under U.P. Industrial Area Development Act, 1976, NOIDA Authority was constituted under Section 3 by the State Government by means of notification issued in the said direction. After constitution of the aforementioned NOIDA Authority, various projects were being undertaken by the NOIDA Authority from time to time and this much is reflected from the record that petitioner on 10th September, 1998 purchased plot no.875 Mijmul Area 2 Acre by way of sale deed. Mutation proceedings were also undertaken and in January, 1999 Khatauni was issued by the Revenue Authorities in the name of petitioner. Subsequent to the same, proceedings under Section 4 of the Land Acquisition Act has been undertaken after dispensing Section 5-A of the Land Acquisition Act vide a notification dated 12th April, 2005 and in the said Notification in question, land of petitioner i.e. Plot No.875 Mijmul Area 2 Acre was also mentioned. Subsequent thereto, notification under Section 6 of the Land Acquisition Act was issued on 27th July, 2006 and possession of the said land has been taken by the State Government on 16.10.2006.
Petitioner submits that thereafter compensation in question was determined as per the Karar Niymawali 1997 and as far as petitioner and other similarly situated incumbents are concerned, petitioner has not at all been paid the compensation as other tenure holders are being paid as Pustaini Kastakar have been given @ Rs.421.30 per square yard and Non Pushtaini Kastakar have been given compensation @ Rs.366.35 per square yard. Petitioner's grievance is that she has been paid Rs.366.35 per square yard and Pushtaini Kastakar have been made compensation @ Rs.421.30 per square yard and Rs.310 as ex-gratia in the year 2009, in view of this, petitioner's submission is that inter-se tenure holders discrimination has been practised by the Authorities and accordingly, this Court should intervene in the matter and extend the relief in question as has been asked for. Petitioner has also proceeded to make a mention before this Court that NOIDA Authority themselves have waived off the difference between Pushtaini Kastakar and Non Pushtaini Kastakar and mention has also been made that even by way of judicial verdict, the said disparity has been sought to be addressed.
The claim in question has been resisted by submitting that there is a great distinction in between the Pushtaini Kastakar and Non Pushtaini Kastakar and mention has been sought to be made that the Authority found that on account of development of industrial area, the original resident of the area, which formed part of NOIDA Authority, have been facing hardship on account of acquisition of their land, as a result whereof their existing place of living and agricultural land was being taken away and as they were likely to be rendered landless and would have to face irreparable hardship, in view of this, such a beneficiary provision has been made by describing them as Pushtaini Kastakar.
It has been stated that in order to tackle the situation, the respondent NOIDA Authority resolved to make provision for allotment of land equivalent to 10% of their acquired holding subject to minimum of 40 sq. mts and maximum of 2500 sq. mts. so that such original residents of the area could be provided with alternative site as also for future expansion for their living etc. Similarly, additional 15% compensation in the name of rehabilitation bonus was also decided to be paid to them so that they could make provisions for their alternative livelihood. Additional 15% amount of compensation known as rehabilitation bonus is provided to those farmers whose name was recorded in revenue records as on 17.04.1976 i.e. the date of constitution of NOIDA Authority and this amount did not form part of compensation. The original residents whose land got acquired form separate category and class of persons altogether and the decision of the Board to provide 10% alternative land and 15% rehabilitation amount was meant only for such original residents i.e. sons of soil of the area, and tiller of the land, and such benefit was not applicable to other persons whose land situated in Noida area but were not the original residents of it. The policy of the respondent NOIDA Authority to provide alternative land to the original residents is based on reasonable classification and has direct nexus with the object sought to be achieved i.e. proper rehabilitation of original residents-sons of soil of the area who are likely to become landless due to acquisition of their land. The aforesaid policy of the respondent NOIDA cannot be made applicable to those who are not original residents of the area, as they are not to suffer similar hardships as would be cause to the original residents and, therefore, such non-original residents are not entitled to the benefits available to the original residents. Action of the respondent Authority is absolute just, legal and valid and is not discriminatory in any way. The policy of the respondent NOIDA Authority is based on valid, legal sustainable ground and the challenge made to it by the petitioner is liable to be fall.
After pleadings have been exchanged, the present writ petition has been taken up for final hearing and disposal with the consent of parties.
Shri Shashi Nandan, Senior Advocate appearing with Shri Ranjeet Saxena, Advocate submitted that such an activity/policy of NOIDA Authority are clearly discriminatory on the face of it, inasmuch as, same has the tendency of creating class out of class amongst tenure holders without there being any valid distinction or justification for the same and the petitioner cannot be denied the benefit of further benefits in reference to the land that has been acquired and such artificial distinction is unsustainable and as such, Writ Petition in question deserves to be allowed.
The claim in question has been resisted by Shri M.C. Chaturvedi, Senior Advocate assisted by Shri Ramendra Pratap Singh, Advocate by submitting that a policy decision has been taken to rehabilitate the original tenure holders, whose land has been taken away and who has been displaced, and in view of this, to say that the policy decision suffers from any arbitrariness, cannot be accepted, inasmuch as, here the classification in question has been carried out to rehabilitate residents, who have been uprooted from the said land in question that was there source of livelihood and Article 14 permits classification once it has direct nexus with the objects that is sought to be achieved and here, in the present case, the object that is sought to be achieved is proper rehabilitation of original residents that are sons of soil in their area, who were likely to become landless after acquisition of their land and as such, in the facts of the case, no interference is required.
After respective arguments have been advanced, the factual situation that is so emerging is that NOIDA Authority has been in the process of acquiring land and the said acquisition of land certainly had the impact of uprooting various tenure holders, who were the original tenure holders, and their livelihood was based on agriculture and their names were recorded in the revenue records before the Authority was constituted i.e. on 17.04.1976. In order to see and ensure that the original tenure holders, whose land has been acquired, qua them decision was taken by the Authority.
The Authority in its 92nd Authority meeting held on 07.01.1998 decided to provide 15% rehabilitation bonus and 10% abadi land (undeveloped) to the tenure holders whose name were recorded in revenue records and were residing in the village, they were called the original tenure holder (pushtaini). In the meeting it was further decided those tenure holders who purchased the land after the constitution of the authority and were residing in the village before the constitution of the authority will also be entitled for the benefit. The extract of the Authority 92nd Meeting is being quoted below:
** Lakpkyd e.My }kjk lE;d~ fopkj foe'kZ ds dze esa fuEukuqlkj fu.kZ; fy;k x;k %& ¼1½ uks,Mk izkf/kdj.k esa Hkh xzsVj uks,Mk ekMy viuk;k tk;sA ¼2½ ,e eq'r izfrdkj ds fu/kkZj.k esa dk'rdkjksa }kjk vU; xzkeksa esa izkIr okLrfod izfrdj dks n`f"Vxr j[krsa gq, uks,Mk ds :0 225-00 izfr oxZ xt ,d eq'r izfrdj nj dks vuqeksfnr fd;k x;k gSA mDr nj esa izfro"kZ miHkksDrk ewY; lwpdkad dh okLrfod nj dks tksM+rs gq, vkxkeh o"kZ esa izfrdj nj fu/kkZfjr dh tkrh jgsxhA bl izdkj ,d eq'r nj vifjofrZr gksxhA ¼3½ uks,Mk izkf/kdj.k dh LFkkiuk ls iwoZ jkTkLo vfHkys[kksa esa ntZ [kkrsnkjksa dks 15 izfr'kr vfrfjDr iquokZl cksul ns; gksxkA uks,Mk izkf/kdj.k dh LFkkiuk ds ckn ftUgkasus Hkwfe [kjhnh gS] mUgsa ;g izfrdj ns; ugha gksxk exj ,sls [kkrsnkj ftUgsa caVokjs ds vk/kkj ij ckn esa [kkrsnkj ntZ fd;k gS] dks Hkh iquokZl cksul ns; gksxkA ¼4½ xzke dh vkcknh dh lhek ls yxh Hkwfe esa dqN LFkku vkcknh ds fodkl ds fy;s vkjf{kr dh tk;sA vkcknh ds fy;s vkjf{kr dh tkus okyh Hkwfe vf/kxzfgr dh x;h dqy Hkwfe dk 10 izfr'kr vfodflr {ks=Qy gksxkA dsoy ijEijkxr d`f"k ij vk/kkfjr ifjokj] tks uks,Mk dh LFkkiuk ds iwoZ xkao ds fuoklh Fks] gh Hkwfe ikus ds fy;s vgZ ekus tk;sxsaA ¼5½ fnukad 1 vizSy] 1997 dks vk/kkj ekurs gq, fjQjsUl Lrj ij le>kSrk nkf[ky ij ykxw fd;k tk;sA eqvkotk fu/kkZj.k dk fl)kUr mlh Hkwfe ij ykxs gksxk ftldk vfHkfu.kZ; fnukad 1-4-1997 dks ;k mlds ckn fd;k x;k gSA vkilh lgefr ds vk/kkj ij vfHkfu.kZ; ?kksf"kr fd;s tkus ds lEcU/k esa jktLo vuqHkkx }kjk tkjh vf/klwpuk la0 2382@10Hkh&2&4¼3½@85&24&jSosU;w 13 fnukad 16-9-1997 mRrj izns'k Hkwfe vtZu fu;e 1997 ds vuqlkj yfEcr izLrkoksa esa ftykf/kdkjh ds le{k Hkh izkf/kdj.k ,oa dk'rdkjksa }kjk le>kSrk fd;k tk ldsxkA ** The Authority in its 96th Meeting held on 08.03.1999 further decided that the maximum allotment area of the acquired land will be 2500 sq. mt. And minimum will be 40 sq. mt. and the other benefits would be the same as per 92nd Authority Meeting qua the tenure holders whose livelihood was based on agriculture and were the resident of the village and their names were recorded in the revenue records before the authority was constituted i.e. on 17.04.1976.
** la[;k&8 vkolh; Hkou@¶ySV ds fujLrhdj.k ds mijkUr iquZLFkkiu dh n'kk esa fy, tkus okys iquZLFkkiu 'kqYd ds lEcU/k esaA lapkyd e.My }kjk fopkjksijkUr vkolh; Hkou@¶ySV ds fujLrhdj.k mijkUr iquZ LFkkiu dh n'kk esa fy, tkus okys iquZLFkkiu 'kqYd esa ,d :irka ykus ds fy, fuEufyf[kr fu.kZ; fy;k x;k & ;fn Hkou@¶ySV dk fujLrhdj.k iw.kZ Hkqxrku u djus ij iV~Vk izys[k fu"ikfnr dj dCtk xzg.k u djus ij rFkk fdlh vU; dkj.kksa ds QyLo:i fd;k tkrk gS rks ,slh fLFkfr esa Hkou@¶ySV dk iquZLFkkiu fd, tkus ij] iquZLFkkiu 'kqYd Hkou@¶ySV dh dqy vkaofVr dher dk -5 izfr'kr /kujkf'k ¼iV~Vk izys[k fu"ikfnr u djus dh vFkZn.M ------- gq,½ fy;k tk,A la[;k&9 lk¶Vos;j VSDuksyksth ikdZ ¼Hkkjr ljdkj dk laLFkku½ dks fuxZr _.k ij ns; n~.MkRed C;kt :i;s 2]65]974@& dh ------ ds lEcU/k esaA fopkjksijkUr lapkyd e.My }kjk ;g er O;Dr fd;k x;k fd lk¶Vos;j VSDuksyksth ikdZ Hkkjr ljdkj ds bYkDVª¨fud foHkkx dk laLFkku gS rFkk bldh LFkkiuk ls uks,Mk {ks= ds fodkl ,oa xkSjo esa o`f) gqbZ gSA laLFkk }kjk _.k dh vkxkeh fd'rksa dks C;kt ds lkFk le; ij Hkqxrku Hkh fd;k gSA vr% lapkyd e.My }kjk laLFkk dks ------ _.k ij fnukad 10-10-94 ls 12-1-96 dh vof/k esa ns; n.MkRed C;kt ----- 2]65]974@& dks ekQ fd;s tkus dh Lohd`fr iznku dh xbZA la[;k&10 uks,Mk {ks= ds xkaoks dh vkoknh ds foLrkj ds fy, fodz; ;ksX; {ks=Qy dh vkoafVr fd;s tkus fOk"k;dA fopkjksijkUr lapkyd e.My }kjk uks,Mk {ks= ds xkaoks dh vkoknh ds foLrkj ds fy, fodz; ;ksX; {ks=Qy dks vkoafVr fd, tkus okys fo"k; dh Lohd`fr xszVj uks,Mk ds iSVªu (Pattern) ij iznku dh xbZ rFkk funsZ'k fn, fd bl izdj.k dks 'kklu dks lwpukFkZ ,oa vko';d dk;Zokgh gsrq izsf"kr fd;k tk,A la[;k&11 ,E;wtesaV ikdZ dh LFkkiuk ds lEcU/k esaA lapkyd e.My }kjk mDr izjZrko o fopkj foe'kZ fd;k x;k rFkk uks,Mk {ks= esa lSDVj 38 esa 140 ,dM Hkwfe ij ,E;wtesaV ikdZ dh LFkkiuk gsrq ifj;kstuk [;kfr izkIr QeZ@dEiuh izkf/kdj.k ds lkFk la;qDr midze ds :i esa --------------uks,Mk izkf/kdj.k }kjk viuh 92oha cksMZ cSBd esa fnukad 7-1-98 dks ;g fu.kZ; fy;k x;k fd **xzke dh vkcknh dh lhek ls yxh Hkwfe esa dqN LFkku vkcknh ds fodkl ds fy, vkjf{kr dh tkosA vkcknh ds fy, vkoafVr dh tkus okyh Hkwfe vf/kxzfgr dh x;h dqy Hkwfe dk 10% vfodflr Js=Qy gksxkA dsoy ijEijkxr d`f"k ij vk/kkfjr xzkeoklh tks fd uks,Mk dh LFkkiuk iwoZ xkao ds fuoklh Fks gh Hkwfe ikus ds fy, vgZ ekus tk;xsaA bl fcUnq ds laca/k esa izfdz;k vyx ls fd;s tkus dk fu.kZ; fy;k x;k FkkA blh dze esa izLrko izLrqr fd;k tk jgk gSA xzkeoklh o tu izfrfuf/k;ksa ls vke lgefr ds i'pkr ;fn blesa ifjorZu dh dksbZ vko';drk iM+rh gS rks cksMZ voxr djk;k tk;sxkA ¿dÀ xkao dh vkoknh ds lfUudV fLFkr Hkwfe dks fodkl ds fy, vf/kxzg.k ds mijkar fpfUgr fd;k tk;sxk RkFkk ,slh Hkwfe dk {ks=Qy vf/kxzfgr dh x;h Hkwfe ds fodz; ;ksX; {ks=Qy dk 10% gksxkA bl Hkwfe ij fodkl dk;Z djkdj ml ij gksus okys okLrfod O;; dks tksM+dj fcuk ykHk gkfu ds vk/kkj ij vkoaVu nj fu/kkZfjr dh tk;sxh rFkk dsoy ewy dk'rdkjksa dks gh bl Js.kh esa j[kk tk;sxkA ,slh Hkwfe dks fpfUgr fd;s tkus dk dk;Z fu;kstu foHkkx }kjk fd;k tk;sxkA ¿[kÀ xzke dh ewy vkcknh tks izkf/kdj.k dh LFkkiuk fnukad 17-4-76 ls iwoZ dh gS vkSj vkcknh esa ntZ gksrs gq, bldk iz;ksx vkcknh gsrq fd;k tk jgk gS rFkk og vkcknh tks vf/kxzghr dh tk jgh Hkwfe dh /kkjk 4@17 ds iwoZ dh gS vkSj ewy vkcknh ls nwj gS] mls mlh vuqikr esa fodkl {ks= esa O;o/kku vkus ij mls gVkdj xzke dh vkcknh ds gh fudV izLrkfor vkcknh ds lkFk lek;kstu fd;k tkuk izLrkfor gSA ¿xÀ vkcknh ds fy, Hkwfe vkoaVu dh U;wure lhek 40 oxZ ehVj rFkk vf/kdre lhek ,d [kkrsnkj ds ikl 12-5 ,dM Hkwfe ds vk/kkj ij 2500 oxZ ehVj izLrkfor gSA ¿?kÀ xzke dh ;g vkcknh tks /kkjk 4@17 dh vf/kxzg.k ds iwoZ dh gS fodkl {ks= es vkus ds dkj.k gVk;s tkus dh n'kk esa rFkk vU;= Hkwfe vkoaVu djus ij iwoZ vkcknh ds fy, d`"kd }kjk fuekZ.k esa fd;s x;s O;; dks fu;ekuqlkj Depriciation djrs gq, ifjlEifRr;ksa ds izfrdj ds :i esa Hkqxrku fd;k tkuk izLrkfor gSA vkcknh d foLrkj -------------------fu/kkZfjr nj ds vfrfjDr voLFkkiuk lqfo/kk;sa O;;] iz'kklfud O;;] xzke fodkl nj izfr oxZ ehVj [kpsZ dh nj dks lfEefyr djrs gq, vkoaVu ds fy, ewY; fu/kkZfjr fd;k tkuk izLrkfor gSA ¿NÀ izLrkfor vkoknh ds fy, vkjf{kr Hkwfe es Hkou fuekZ.k ds fy, ljy fcfYMax ekbZykt ykxw fd;k tkuk izLrkfor gSA ¿tÀ izLrkfor vkcknh esa Hkw[k.M vkoaVu dh izfdz;k esa ykVjh Mªk dh i)fr viukbZ tk;sxhA ¿>À vkcknh ds fy, Hkwfe vkoaVu eas iV~Vk izys[ku esa gksus okyk O;; iV~Vk /kkjd }kjk ogu fd;k tk;sxkA mDr izLrko cksMZ ds fopkjkFkZ izLrqr gSA** The Authority in its 101st, 102nd and 130th Meeting held on 13.07.2000, 30.09.2000 and 19.12.2005 retained the same decision. The Authority in its 146th Meeting held on 10.09.2007, Meeting 154th held on 18.09.2008 and the Meeting 159th held on 20.02.2009 once again retained the same benefits as decided by the authority in its 92nd 96th and 101st authority meeting. The decision was modified to the extent that only those tenure holders (original resident) will be entitled for 5% develop abadi land in which the possession or the award was passed after 01.04.1997.
There is no issue on this fact that the NOIDA Authority has the Authority to frame and formulate such a policy and the issue that is being assailed before us is to the effect that the said resolution passed by NOIDA Authority has the effect of creating class amongst class amongst tenure holders without any lawful justification and without there being any direct nexus to the object that is sought to be achieved.
In order to answer this issue we will have to examine as to what is the purport and object of rehabilitation.
Displacement/Rehabilitation has always been a matter of concern whenever the matter has travelled before the Court and such a concern has been expressed in the case of Narmada Bachao Andolan Case 2010 (10) SCC 664, wherein Apex Court has proceeded to make a mention that rehabilitation is not only about providing food, clothes or shelter, it is also about extending support to re-root livelihood by ensuring necessary amenities of life and and rehabilitation of the oustees is a logical corollary of Article 21. The oustees should be in a better position to live a decent life and earn livelihood in the rehabilitated locations. The rehabilitation creates a sense of confidence amongst the oustees and they will be in a better position to start their life by accommodating themselves with the new environment. The said view in question has been reiterated in the case of N.D. Jayal vs. Union of India 2004 (9) SCC 362 giving emphasis on rehabilitation in reference of the oustees.
Rehabilitation is a social issue and once the State or its instrumentalities take a decision to acquire the land compulsorily, then it is true that as far as the compensation is concerned, such compensation in question is to be determined strictly in consonance with the parameters as are provided for under the Land Acquisition Act and this is also equally true that under the Land Acquisition Act no distinction whatsoever has been drawn between class of tenure holders in the matter of awarding compensation. Section 11 of Land Acquisition Act provides for preparation of award. Award is to be prepared in the manner prescribed. Section 11 of Land Acquisition Act provides for as follows:
11. Enquiry and award by Collector:
(1) On the day so fixed, or any other day to which the enquiry has been adjourned, the Collector shall proceed to enquire into the objections (if any) which any person interested has stated pursuant to a notice given under section 9 to the measurements made under section 8, and into the value of the land and [at the date of the publication of the notification under section 4, sub-section (1)], and into the respective interests of the persons claiming the compensation, and shall make an award under his hand of-
(i) the true area of the land;
(ii) the compensation which in his opinion should be allowed for the land; and
(iii) the apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom, or of whose claims, he has information, whether or not they have respectively appeared before him:
Provided that no award shall be made by the Collector under this sub-section without the previous approval of the appropriate Government or of such officer as the appropriate Government may authorise in this behalf:
Provided further that it shall be competent for the appropriate Government to direct that the Collector may make such award without such approval in such class of cases as the appropriate Government may specify in this behalf.
(2) Notwithstanding anything contained in sub-section (1), if at any stage of the proceedings, the Collector is satisfied that all the persons interested in the land who appeared before him have agreed in writing on the matters to be included in the award of the Collector in the form prescribed by rules made by the appropriate Government, he may, without making further enquiry, make an award according to the terms of such agreement.
(3) The determination of compensation for any land under sub-section (2) shall not, in any way affect the determination of compensation in respect of other lands in the same locality or elsewhere in accordance with the other provisions of this Act.
(4) Notwithstanding anything contained in the Registration Act, 1908 (16 of 1908), no agreement made under sub-section (2) shall be liable to registration under that Act.
11-A 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 (68 of 1984), the award shall be made within a period of two years from such commencement. Explanation. In computing the period of two years referred to in this section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court shall be excluded.
The exercise for preparation of award as provided for under sub-section (1) and sub-section (2) of Section 11 is altogether different as in the first category of case Collector has to make an enquiry keeping in view the objections qua the value of land whereas in second category of case award can be passed on the basis of agreement.
The U.P. Land Acquisition Act (Determination of Compensation and Declaration of Award by Agreement) Rules, 1977 provides for a fair and reasonable method of payment of compensation. In order to avoid litigation and uncertainty delay in preparing the award and payment of compensation, the Rules provide for an offer to be made by the acquiring body to the Collector. The Collector after he is satisfied with the amount offered for compensation, will issue notice and call for meeting with the land owners. If an agreement is reached in these meetings in the prescribed form appended to the Rules, the compensation is to be paid to the land owners who are parties to the agreement. The entire amount is paid to the farmers under the agreement without any unreasonable delay.
In the present case this fact is not denied that the petitioners have entered into agreement to receive compensation at the rate fixed for "gair pushtaini" farmers. A Division Bench of this Court in the case of Preetam Singh vs. State of U.P. and others, Civil Misc. Writ Petition No.49110 of 2009 connected with bunch of writ petition, decided on 18.12.2009 in context of provisions quoted above, has clearly taken the view that once incumbents have signed the agreement and accepted compensation in terms of agreement, then such incumbents are not entitled for higher compensation, and cannot claim enhancement of amount. We re-affirm the same view.
Much emphasis has been laid before us that a Full Bench of this Court, in its judgement dated 14.05.2015 has concluded that there is no distinction between Pushtaini Kastakar and Non Pushtaini Kastakar and as such, judgement of the Full Bench that has been so affirmed on 14th May, 2015 should be followed in principle by this Court.
The judgement passed in Civil Misc. Review Application No.368519 of 2011 in Writ Petition No.37443 of 2011 (Gajraj and others vs. State of U.P. and others) would go to show that at no point of time before this Court, at the point of time when Full Bench has been decided, the issue of Pushtaini or Gair Pushtaini was raised and this much is accepted position that the directives that have been given therein were with regard to the farmers whose land was acquired. Before the Full Bench at no point of time there has been any issue of Pushtaini and Gair Pushtaini and in the said backdrop, a uniform decision was taken to provide the enhanced compensation and the said judgement has been affirmed by the Apex Court also. Apex Court also in Civil Appeal No.4506 of 2015, Savitri Devi vs. State of Uttar Pradesh, while affirming the Full Bench judgement has mentioned that said directives have been given in peculiar characteristics and would not form precedent for future case. Conclusion recorded is as follows:-
"Conclusion
43. Keeping in view all these peculiar circumstances, we are of the opinion that these are not the cases where this Court should interfere under Article 136 of the Constitution. However, we make it clear that directions of the High Court are given in the aforesaid unique and peculiar/specific background and, therefore, it would not form precedent for future cases."
The said judgement in question in no way would help the petitioner as the issue of Pushtaini and non Pushtaini was not at all there. Judgements in the case of Vijay Gyan Dharmarth Sansthan and another vs. Union of India (UOI) and others 2011 (6) ADJ-7, Rajiv Sarin and another vs. State of Uttrakhand and others AIR 2011 SC 3081 and Hari Ram vs. State of Haryana 2010 (3) SCC 621 are contextually different and would not at all apply in the facts of case as isolated observations in judgement cannot be treated as precedents dehors the facts and circumstances in which the aforesaid observation was made. It is true that as of now, the NOIDA Authorities have waived off the difference between Pushtaini Kastakars and Non Pushtaini Kastakars. The said policy in question has been framed to operate prospectively and framing of policy is in the realm of the Authority concerned and in case, the policy in question is arbitrary or irrational, on limited grounds it is open to be challenged. Merely because the NOIDA Authority has waived off the difference between Pushtaini Kastakar and Non Pushtaini Kastakar on 26.08.2014, the same cannot be a ground to disapprove the resolution that has been so passed by NOIDA Authority for the reason that it is well within the domain of the NOIDA Authority to pass such a resolution.
Article 14 of the Constitution of India mandates equality before law by providing that State shall not deny any person equality before the law or the equal protection of laws within the territory of India. The equality clause requires that all persons subjected to any legislation should be treated alike under like circumstances and conditions. Equals have to be treated as equally and unequals be not treated equally. Article 14 does not forbid classification. Principle underlying the guarantee of Article 14 is not that same rules of law should be applicable to all persons within the territory of India irrespective of differences or circumstances. It only means that all persons similarly situated should be treated alike without any distinction. By the process of classification, the authority has the power to determine who should be regarded as a class for the purposes of legislation and in relation to law enacted on the subject. Before classification is held to be valid, it has to pass the test of fulfilling following conditions (I) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (II) the differentia must have rational nexus or relation to the object sought to be achieved by legislation.
In Deepak Sibal Vs. Punjab University and another, AIR 1989 SC 903, it was observed by the Apex Court that it is now well settled that Article 14 of the Constitution forbids class legislation, but does not forbid reasonable classification. Whether a classification is a permissible classification or not, two conditions must be satisfied, namely (i) that the classification must be founded on an intelligible differentia, which distinguishes persons or things that are grouped together from others left out of the group, and (ii) that the differentia must have a rational nexus to the object sought to be achieved by the status in question.
In the case of M.P. Oil Extraction Versus State of M.P. reported in AIR 1998 SC 145 it was observed by the Apex Court that Article 14 has inbuilt flexibility and it also permits different treatment to unequals as it only prohibits discrimination amongst the equals. Implicit in the concept of equality is the concept that persons who are in fact unequally circumstanced cannot be treated on a par. Equally under Article 14 is not indiscriminate. Paradoxical as it may seem, the concept of equality permits rational or discriminating discrimination.
The larger issue is that once compensation in question has been awarded under the Land Acquisition Act, are the State instrumentalities stopped in law in discharging their social obligation by making scheme for rehabilitation of the oustees, whose land is being acquired.
The answer to this question would be 'No' for the simple reason that it is always open to the Authorities, in addition to the compensation that is to be awarded under the Land Acquisition Act, to award something in addition to a different class of tenure holders for specific objects that are sought to be achieved.
In this backdrop, we are perusing the facts of the case and what we find, in the present case, is that for the purposes of awarding additional compensation, other than the compensation that has already been awarded, that is of providing additional compensation to Pushtaini Kastakars and also providing ex-gratia to the Pushtaini Kastakars.
Pushtaini Kastakars and Non Pushtaini Kastakars have been classified based on the situation qua the incumbents who were original residents of the area, which formed part of the NOIDA Authority, and on account of acquisition of their land as a result thereof, of their existing place of living agriculture land was being taken away and they were likely to be rendered landless and would have to face irreparable hardship, since their land itself was being acquired and the second class of incumbents were such, who have shifted to Noida after the Authority in question has been constituted.
The NOIDA Authorities, in their wisdom, have proceeded to classify two category of tenure holders based on original resident, whose land has been acquired and from the class of persons who have shifted to Noida after the Authority in question has been constituted. Additional compensation and ex-gratia amount has been given as rehabilitation bonus to those farmers whose land has been recorded in the revenue records as on 17.04.1976 i.e. the date of constitution of NOIDA Authority and it was not at all part of the compensation but it was an additional compensatory amount so that they can rehabilitate themselves.
In the present case, the classification that has been so made cannot be said to be arbitrary or unreasonable, inasmuch as, on one hand there are such tenure holders, who have been the original residents, whose land has been got recorded in the revenue records before the constitution of NOIDA Authority and who has to be rehabilitated and on the other hand, there is another class of tenure holders, who are not at all the original residents but have subsequently migrated after the constitution of NOIDA Authority, in view of this, once such is the factual situation that is so emerging, then the classification in question that has been so carried out, has to be accepted as reasonable classification having direct nexus with the object sought to be achieved that is proper rehabilitation of original residents i.e. sons of soil of the area, who are likely to become landless due to acquisition of their land, in view of this, the challenge that has been so made on the basis of discrimination, cannot be accepted by us and has to be overruled.
Consequently, challenge made sans merit, and all the writ petitions are dismissed accordingly.
No order as to cost.
Order Date :-10.05.2016 A. Pandey