Allahabad High Court
Nanhey Lal And Another vs State Of ... on 31 October, 2019
Bench: Pankaj Kumar Jaiswal, Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 1 Case :- LAND ACQUISITION No. - 3724 of 2019 Petitioner :- Nanhey Lal And Another Respondent :- State Of U.P.Throu.Prin.Secy.Deptt.Of Housing & Urban & Ors. Counsel for Petitioner :- A.P. Singh,Amarendra Pratap Singh,Namit Sharma Counsel for Respondent :- C.S.C.,Ratnesh Chandra Hon'ble Pankaj Kumar Jaiswal,J.
Hon'ble Irshad Ali,J.
1) Heard Sri S. C. Mishra, learned Senior Advocate assisted by Sri Namit Sharma, learned Counsel for the petitioners, Sri Gopal Kumar Srivastava, learned Standing Counsel for respondent No.1/State and Sri Ratnesh Chandra, learned Counsel for respondent Nos.2 and 3.
2) Petitioners are tenure holders (bhumidhars) over an area of 0.6170 hectare (2-8-16-0 bigha) of Khasra Plot No.2613 situate at Haiwat Mau, Mawaiya, Pargana Bijnore, Tehsil & District Lucknow. Respondent Nos.2 and 3 had taken a policy decision to acquire the land situate at Telibagh, Rai Bareli Road, Lucknow under the Vrindavan Yojna No. 4 for construction of houses.. The total area of the land to be acquired was measuring 967.38 acres and a notification under Section 28 of the U. P. Awas Evam Vikas Parishad Adhiniyam, 1965 [here-in-after referred to as the '1965 Adhiniyam'] was issued on 4.12.1999 whereby the land measuring 967.38 acres was acquired, including the land of petitioners, i.e.0.6170 hectare [2-8-16-0 Bigha] and declaration under Section 32 of the 1965 Adhiniyam was issued on 3.4.2004 for the Scheme, known as U. P. Awas Evam Vikas Parishad Greh Sthan Yojna 4 Rai Bareli Road, Lucknow.
3) According to the petitioners, there are two rooms and a statue of Sri Ambedkar over the land in question, i.e., 0.6170 hectare constructed, prior to issuance of notification under Section 28 of the 1965 Adhiniyam.
4) Respondent No.1/Government of U. P. took a policy decision for adjusting the land of farmers under the Scheme in question whose constructions are prior to 2002. As the Housing Board was not able to carry out its road, sewerage and pipe lines etc. on account of construction, the Board took a decision for adjusting the landholders where construction was found prior to 2002. Consequently, a committee was constituted consisting seven members under the Chairmanship of Superintending Engineer, Brindavan Circle, Lucknow and vide letter dated 19.9.2015 directed to physically inspect the area and submit its report. After inspection, the Committee gave its report that in respect of petitioners' case, two rooms and one Statue were constructed prior to 2002 and rest of the area was surrounded by a boundary. As per spot inspection report, the constructions over the land in question which were prior to 2002 are causing obstruction and construction of road, sewerage and pipe lines and recommended that 25% of the land in question will be adjusted without charging any development fee and 25% of the land will be adjusted after taking current rate of the Board and subject to the condition that the petitioners shall not claim compensation of land in question and also directed to obtain consent of the petitioners on affidavit. The petitioners being agreed to the aforesaid proposal and recommendation made by the Committee, gave their consent in the form of affidavit. On 6.4.2016, after perusal, the Superintending Engineer forwarded the same to the Executive Engineer, Brindavan Circle, Lucknow pertaining to the case of the petitioners. It is also stated that the petitioners gave their consent for construction of road subject to the condition that 25% of the land in question be adjusted without charging development fee and 25% of the land be adjusted after charing development fee. Relevant report (Annexure 3 to the writ petition) reads as under:-
"Jh uUgs o uSehyky iq=x.k Jh Hkxokunhu }kjk fn;s x;s vkosnu dk ifjlhyu fd;k x;k rFkk muds izfrfuf/k;ksa ls okrkZ dh x;h muds }kjk fu;ksftr ys vkmV ds vuqlkj lMd cukus gsrq Hkwfe nsus dh lgefr bl 'krZ ds lkFk nh x;h fd 'ks"k Hkwfe fu;ekuqlku fodkl 'kqYd ysdj mlds i{k esa lek;ksftr dj nh tkrh gS rks vo'ks"k lMd dks cukus esa os lg;ksx djsaxs A mijksDr ds ifjisz{; esa lfefr dks vfHker gS fd ;kstuk fgr esa Jh uUgs o ukSehyky iq=x.k Jh Hkxokunhu ds [kljk la[;k & 2613 dks vkilh le>kSrs ds vk/kkj ij fuLrkfjr fd;k tkuk ;kstuk fgr esa mfpr ik;k x;k ftlls ys vkmV ds vuqlkj lMd@lfoZlst dks dk;Z iw.kZ djk;k tk lds rFkk vo'ks"k Hkwfe dk fu;ekuqlkj vklq/kkj@fodkl 'kqYd ysdj lek;ksftr djus dh laLrqfr dh xbZ A mYys[kuh; gS fd mDr [kljs ij fLFkr fuekZ.k o"kZ & 2002 ds iwoZ ds gS vr% mDr fuekZ.k@vEcsMdj dh vknedn ewfrZ vkfn dks lsVcSd nsrs gq, jsxqyj 'ks"k o lsDVj & 16 ds ys vkmV Iyku esa ;FkkLFkk ij lek;ksftr fd;k tkuk mfpr ik;k x;k ftlls ifj"kn ds fu;ksftr ys vkmV Iyku ds vuqlkj fodkl dk;Z ,oa fu;ksftr lEifRr;ka fuLrkfjr gks lds A"
5) On 8.1.2016, the Town Planner informed the Superintending Engineer with a view to adjust the land in question in the lay-out plan requested for feasibility report so that the lay-out plan may be finalized. On 11.5.2016, the Additional Housing Commissioner-cum-Secretary, wrote a letter to the Town Planner on the basis of compromise entered into between the petitioners and Housing Board for finalization of lay-out plan. In the meantime, the recommendations of the Committee for adjustment of the land of the petitioners and others was placed before the Board in its 235th meeting held on 12.4.2016. The Board turned down the aforesaid proposal by passing a non-speaking order and therefore, the matter was again placed before the Board for adjustment of the land of the Scheme on 3.8.2016, excluding the case of the petitioners, on the basis of recommendations of earlier committee and the Board vide order dated 3.8.2016 accepted the recommendations of the Committee in respect of number of land owners. The case of the petitioners was with them but that was not forwarded to the Board and therefore no direction was taken on it.
6) The petitioners filed a Writ Petition No.3209 (Land Acquisition) of 2018 wherein vide order dated 5.2.2018, the Division Bench while disposing of the writ petition issued a direction to the respondent No.1/State Government to pass appropriate orders on the pending request of the petitioners, strictly in accordance with law within a period of two months from the date of receipt of a certified copy of the order.
7) Thereafter, on 17.7.2018, the State Government after examining the matter issued a direction in exercise of power conferred under Section 49 of the 1965 Adhiniyam by observing that the case of the petitioners is identical and similar to other land owners in whose matter the Board in its 237th meeting held on 3.8.2016 granted approval for adjusting the land. Paras 7 and 8 of the order dated 17.7.2018 of the State Government are relevant which read as under:-
"7& fjV ;kfpdk la[;k & 3209@2018] uUgs yky o vU; cuke m0iz0 jkT; o vzU; esa mPp U;k;ky;] y[kuÅ csp] y[kuÅ }kjk ikfjr vkns'k fnukad 05&02&2018 ds vuqikyu@leknj esa izdj.k dk fof/kor~ ijh{k.k fd;k x;k A ijh{kiksijkUr fuEuor~ fLFkfr ik;h x;h %& ¼1½ eks0 lyhe ds lEcU/k esa fu;kstu lfefr }kjk mudh Hkwfe ds cnys 300 oxZehVj dk ,d Hkw[k.M vlq/kj 'kqYd ysrs gq, vkoafVr fd;s tkus dh laLrqfr dh x;h Fkh] fdUrq mUgsa 300 oxZehVu ds LFkku ij vftZr Hkwfr ds lkis{k 60 izfr'kr Hkwfe ;kstuk esa fn;s tkus dk izdj.k fcuk fdlh lfefr dh laLrqfr ds ifj"kn }kjk Jh lyhe ,oa rRdkyhu jkT;ea=h Je ¼Jh dkS'ky fd'kksj½ ds vuqjks/k ij ifj"kn dh 188oha cSBd fnukad 12&3&2004 esa j[kk x;k] ftls ifj"kn cksMZ }kjk en la[;k & 188@1&53 ij ;kstuk esa fodkl dk;ksZa esa buds }kjk fd;s x;s ;ksxnku ds n`f"Vxr budh vftZr Hkwfe ds lkis{k 60 izfr'kr Hkwfe ifj"kn ;kstuk esa fn;s tkus dk fu.kZ; fy;k x;k vkSj mDr ds vk/kkj ij ifj"kn }kjk Jh lyhe dks mudh vftZr Hkwfe ds cnys 60 izfr'kr Hkwfe ;kstuk esa nh x;hA ¼2½ vij vkokl vk;qDr ,oa lfpo }kjk xfBr lfefr }kjk o`Unkou ;kstuk y[kuÅ esa o"kZ 2002 ls iwoZ ds fuekZ.kksa ds lek;kstu ds lEcU/k esa v/kh{k.k vfHk;.rk] o`Unkou o`Rr] y[kuÅ dks v/;{krk esa fnukad 23&9&20`15 dks lEiUu cSBd esa fy;s x;s fu.kZ; ftlesa vU; ds vfrfjDr [kljk la[;k & 2613 ij fLFkr fuekZ.kksa ds lek;kstu ¼Jh uUgs yky o ukSeh yky½ ds lEcU/k esa laLrqfr dh x;h Fkh] ftls ifj"kn dh 235 oha cSBd fnukad 12-06-2016 esa fujLr dj fn;k x;k Fkk A iqu% mlh laLrqfr dks vk/kkj ekudj 235 oha cSBd fnukad 12&06&2016 esa fujLr fd;s x;s izdj.kksa esa ls Jh f'ko'kadj] Jherh lquhrk] Jh jkedqekj rFkk Jh iszeukFk iky] Jh ukxs'oj iky ,oa Jherh 'kSys'k 'kqDrk ds fuekZ.kksa dks vU;= lek;kstu gsrq izdj.k ifj"kn dh 237oha cksMZ cSBd fnukad 03-08-2016 ds en la[;k & 237@38 ij izLrqr fd;k x;k] ftl ij ifj"kn cksMZ }kjk vuqeksnu iznku fd;k x;k] fdUrq ifj"kn dh 237oha cSBd esa Jh uUgs yky o Jh ukSeh yky dh Hkwfe [kljk la[;k &2613 ls lEfU/kr izdj.k dks ugha j[kk x;k A ifj"kn }kjk miyC/k djk;h x;h lwpuk ds vuqlkj ;kphx.kksa dh iz'uxr Hkwfe dk ,okMZ vHkh ?kksf"kr ugha fd;k x;k gS A 8& mijksDr leLr of.kZr rF;ksa ls Li"V gS fd Jh lyhe dk izdj.k ifj"kn dh 188 oha cSBd fnukad 12&03&2014 esa izLrqr fd;k x;k rFkk ifj"kn cksMZ }kjk mDr cSBd esa 60 izfr'kr Hkwfe Jh lyhe dks nsus dk vuqeksnu fd;k x;k gS] tks fu;kstu lfefr dh laLrqfr ls fHkUu Fkh A mDr ds vfrfjDr v/kh{k.k vfHk;.rk dh v?;{krk esa xfBr lfefr dh cSBd fnukad 23&09&2015 ds dk;Zo`Rr ds vk/kkj ij vU; izdj.kksa dks ifj"kn dh 237oha cSBd fnukad 03&08&2016 esa izzLrqr dj Jh f'ko'kadj] Jherh lquhrk] Jh jkedqekj rFkk Jh iszeukFk iky] Jh ukxs'oj iky ,oa Jherh 'kSys'k 'kqDrk ds fuekZ.kksa dk lek;kstu ifj"kn cksMZ ls fd;k x;k gS A mDr fLFkfr;ksa ds n`f"Vxr izdj.k esa lE;d fopkjksijkUr ;g fu.kZ; fy;k x;k gS fd mfYyf[kr izdj.kksa dh HkakWfr lekurk ds vk/kkj ij ;kphx.k Jh uUgsa yky o ukSeh yky dh Hkwfe [kljk la[;k & 2613 gSoreÅ eSo;k ds izdj.k dks vkokl vk;qDr] m0 iz0 vkokl ,oa fodkl ifj"kn }kjk ifj"kn dh vkxkkeh cksMZ cSBd esa izLrqr dj xq.koxq.k ds vk/kkj ij fu.khZr djk;k tk; A rnuqlkj ;kphx.k ds izR;kosnu fnukad 14&11&2017] 26&12&2017] 05&2&2018 o 23&4&2018 dks ,rn~}kjk fuLrkfjr fd;k tkrk gS A"
8) A copy of the order was sent to the Additional Housing Commissioner, Lucknow with a direction to comply the aforesaid direction and communicate the decision to the State Government at the earliest. In compliance of the direction issued by the State Government on 3.8.2016, the case of the petitioners for grant of adjustment was taken by the Board in its 246th meeting held on 10.9.2016 and held that as per Google Earth Map, the construction of the petitioners over the land in question are after 2003 and therefore, the claim of the petitioners was rejected. However, the same has not been communicated to the petitioners. Therefore, the petitioners obtained the aforesaid information under RTI Act and after receipt of the copies of the orders in the year 2018, the petitioners immediately filed the instant writ petition challenging the impugned order dated 3.10.2018 and prayed for the following reliefs:-
(a) issue a writ, order or direction in the nature of certiorari quashing the resolution/order dated 3.10.2018, contained in Annexure no.1, passed by U. P. Housing & Development Board, Lucknow, communicated to the petitioners under Right to Information Act, 2005 vide letter dated 24.10.2018 received by the petitioners on 29.10.2018 by rejecting the recommendations of the Committee for adjustment of land of the petitioners (25% of land, in question, without charing any development charge and 25% land, in question, after charging the current rate of the Board) over Khasra Plot no.2613 with an area of 0.6170 hectare situate at Haiwat Mau, Mawaiya, Pargana Bijnore, Tehsil & District Luckknow.
(b) issue a writ, order or direction in the nature of mandamus commanding the Opposite Parties to adjust 50% of land, in question, (25% of land, in question, without charging any development charge and 25% land, in question, after charging the current rate of the Board) over Khasra Plot no.2613 with an area of 0.6170 hectare situate at Haiwat Mau, Mawaiya, Pargana Bijnore, Tehsil & District Lucknow in terms of recommendations of the Committee as contained in Annexure no.2 within a time to be fixed by this Hon'ble Court.
(c) issue such other, writ, order or direction, which may be deemed just and proper in the circumstances of the case and;
(d) allow the Writ petition with costs."
9) It is submitted that the finding recorded by the Board is based upon the constructions available at per Google Earth Map, by holding that the constructions of the petitioners over the land in question is of 2003, though has no legal sanctity because Google Earth Map was launched in the year 2005 and the findings recorded by the Board are without any evidence on record and perverse. The said system was first introduced in India in the year 2005.
10) Learned Senior Counsel further submitted that after policy decision has been taken to adjust the land of framers, where constructions are prior to 2002, the Committee headed by the Superintending Engineer physically inspected the area of the petitioners and found that the constructions of the petitioners were prior to 2002. The report of the Committee is on the basis of physical inspection held on 23.2.2005 and thus, the report of the committee who physically inspected the spot and found that the construction of the petitioners prior to 2002 will prevail over the Google Earth Maps. It is also submitted that after spot inspection, the petitioners gave their consent which was accepted by the Housing Commissioner. Based on this, necessary amendments were also made in the lay-out plan and on 3.8.2016, the Board accepted the recommendations of the Committee and adjusted the land of Salim, Shiv Shanker, Smt. Sunita, Ram Kumar, Premnath Pal, Nageshwar Pal and Smt. Shailesh Shukla, but in the case of petitioners, without making any probe, respondent No.2 erred in rejecting the proposal of the petitioners which is wholly discriminatory and is not legally sustainable. The procedure adopted by the respondents is unheard of and prayed for quashment of impugned order.
11) As per report of Superintending Engineer, the constructions over the land in question were made prior to 2002. According to the report, the Superintending Engineer, apart from the case of the petitioners, also gave a report in respect of adjustment of land of other land owners, namely, Salim, Shiv Shanker, Smt. Sunita, Ram Kumar, Premnath Pal, Nageshwar Pal and Smt. Shailesh Shukla. Thereafter, they excluded the case of the petitioners for grant of adjustment and by accepting the aforesaid report, the Housing Board granted adjustment to other land owners. No reason has been assigned as to why the case of the petitioners was excluded for consideration in its Board Meeting dated 3.8.2016.
12) Respondent Nos.2 and 3 in paragraph - 13 of the counter affidavit have very categorically admitted that a Committee was constituted by the Additional Housing Commissioner-Cum-Secretary under the Chairmanship of Superintending Engineer, Brindavan Circle, Lucknow. The said committee vide letter dated 14.10.2015 communicated the Minutes of Meeting held on 23.9.2015 to the Additional Housing Commissioner-cum-Secretary.
13) The only ground taken by the respondent Nos.2 and 3 in their counter affidavit is that the petitioners did not submit any objection under Section 29 of the 1965 Adhiniyam regarding any constructions made by them on the land in question. Their stand is that the report of Niyojan Samiti is not final and the petitioners have failed to establish about their constructions prior to notification under Section 28of the 1965 Adhiniyam.
14) In the counter affidavit, it was not denied by them that the areas of the petitioners and other land owners were not inspected by the Committee which was constituted by the Additional Housing Commissioner and after physical inspection of the area in question, the report has been submitted by the Committee in respect of the land of the petitioners as well as other land owners wherein they categorically stated that constructions were made prior to 2002 and this report was never doubted nor in the counter affidavit, they have stated that the aforesaid report pertaining to the case of the petitioners is incorrect. After submission of report, the State Government has accepted it and now it is too late for them to rely on Google Earth Map and say that the constructions of the petitioners were after 2003. The case of the petitioners is similar to the case of other land owners.
15) Respondent No.1/State of U.P. in its counter affidavit dated 25.5.2019, never disputed the report of the Committee headed by the Superintending Engineer, Brindavan Circle, Lucknow. The State Government admitted that the Committee vide its letter dated 14.10.2015 had submitted report wherein it is stated that the constructions were prior to 2002. Their defence was that the said report does not confer any right upon the petitioners to get the adjustment as per policy decision of the Board. The stand of the State Government is that there were no constructions over the petitioners' land at the time of acquisition proceedings and therefore, the authorities rightly declined to exempt the petitioners' land.
16) There was no denial by the respondent No.1 in the counter affidavit that as per report of the Committee which was headed by the Superintending Engineer, the constructions over the land of the petitioners as well as other land owners were prior to 2002 and this report was accepted by the respondents while granting benefit to other land owners as is evident from the details given in the counter affidavit and thereafter, they never issued any notice to the petitioners that the said report is factually incorrect and therefore now in the year 2018, on the basis of Google Earth Map which was launched in India in February 2005, they cannot take a different view while considering the case of the petitioners when the State Government in its order dated 17.7.2018 have very categorically relying on the aforesaid report directed the Additional Housing Commissioner to place the matter before the Board for grant of benefit as it has been extended to other similarly situated persons. Now they cannot say that the petitioners are not having any parity with the other land owners. There is nothing on record to indicate that the information on Google Earth Map with respect to its accuracy is correct. Whereas the report of the Committee is on the basis of physical inspection report by the Members of Committee who after spot inspection gave its report that the constructions made by the petitioners were of prior to 2002.
17) It is admitted by the respondents that the area was physically inspected by a team of seven members headed by the Superintending Engineer and they gave a report to the Additional Housing Commissioner that the constructions over the land in question and other land owners are prior to 2002 and on the basis of the aforesaid report, the Board took a decision to accept the same and granted benefit to other land owners. The Board never referred to the Google Earth Maps which was available at the time of preparation of report. This will go to show that the Board relied upon the physical report and is well-universal procedure in asking the report to physically inspect the same and submit its report, but the procedure adopted, in considering the case of the petitioners, in pursuance of the High Court's direction and turned down their own report, is unheard of. Thus, we are of the view that the Google Earth Maps which were accepted only in respect of the petitioners have no sanctity. There has been error at the very inception which goes to the very root of the matter. However, good may be the Google Earth Map, but the same cannot be accepted in the case of the petitioners. When there was no dispute in respect of the report of the Committee headed by the Superintending Engineer, Brindavan Circle, Lucknow, the same was accepted in the case of other land owners and on the basis of the aforesaid report, they have been granted the benefit and thus, looking to the above, we are of the view that the petitioners are rightly claiming parity with the other land owners. Neither respondent No.1/State Government nor respondent Nos.2 and 3/Housing Board denied the report of the Committee and thus, we are not convinced with the stand taken by the Board in rejecting the claim of the petitioners as the case of the petitioners is identical and similar to the case of other land owners to whom the benefit has been granted by the Board and thus, the petitioners are also entitled for the similar treatment by the respondent.
18) In the present case, it has also come on record that the report of the Committee that two rooms and one Statue were constructed prior to 2002, was accepted by the respondent Nos.2 and 3. The committee also found that the constructions over the land in question which were prior to 2002 are causing obstruction and construction of road, sewerage and pipe lines and recommended that 25% of the land will be adjusted without charing any development fee and 25% of the land will be adjusted after taking current rate of the Board, to which the petitioners gave their consent on oath and the Housing Commissioner on 27.11.2015 approved the recommendations of the Committee and the Executive Engineer wrote a letter to the Superintending Engineer for placing the matter before the Housing Commissioner. The Town Planner also vide letter dated 8.1.2016 wrote a letter to the Superintending Engineer to find out the feasibility report so that in the lay-out plan, necessary amendments may be made for adjustment of the land of the petitioners by mentioning therein that the petitioners shall have to cooperate and thereafter, on 11.5.2016, the Additional Housing Commissioner directed the Town Planner to finalize lay-out plan on the basis of compromise for adjustment of the land.
19) Now it is too late for the respondents to change their view by relying on Google Earth Map which was introduced in India in the year 2005 and come to the conclusion that the construction was made after 2003. The report of the Committee headed by the Superintending Engineer is binding upon all the respondents and the same is liable to be considered in the case of the petitioners also, when relying on the same report, other land owners have been granted benefit by way of adjustment.
20) For the above mentioned reasons, we are of the considered view the impugned order dated 3.10.2018 is liable to be quashed.
21) Accordingly, the impugned order dated 3.10.2018 is quashed. The respondents are directed to pass fresh orders on the basis of the recommendations of the Committee dated 14.10.2015 and Board's approval dated 3.8.2016 within a period of two months from the date of production of a certified copy of this order and grant similar benefit to the petitioners as has been granted to other land owners, namely, Saleem, Shiv Shanker, Smt. Sunita, Ram Kumar, Premnath Pal, Nageshwar Pal and Smt. Shailesh Shukla respectively.
22) The writ petition is allowed accordingly. No order as to costs.
[Irshad Ali, J.] [Pankaj Kumar Jaiswal, J.] Order Date :- 31.10.2019 lakshman