Allahabad High Court
Kamal Singh And 4 Others vs State Of Up And 5 Others on 13 September, 2024
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD ? Neutral Citation No. - 2024:AHC:150201-DB Court No. - 29 Case :- WRIT - C No. - 14578 of 2024 Petitioner :- Kamal Singh and 4 Others Respondent :- State Of UP And 5 Others Counsel for Petitioner :- Mohan Lal Pandey,Narendra Kumar Shukla,Nishi Kant Chaturvedi Counsel for Respondent :- Ambrish Shukla,Anuj Pratap Singh,C.S.C. Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Prashant Kumar,J.
1. Heard Shri N.K. Shukla, learned counsel for the petitioners, Shri Rajiv Gupta, learned Additional Chief Standing Counsel for the State respondents and Shri Amrish Shukla, learned counsel for U.P. State Industrial Development Authority.
2. The instant writ petition is preferred inter-alia for the following reliefs:-
"(i) Issue a writ order or direction in the nature of mandamus commanding and directing the respondents to pay Rupees 1-1 Lac as exemplary cost for violating the constitutional right of the petitioners laid down under Article 300-A of the Constitution of India.
(ii) Issue a writ order or direction in the nature of mandamus commanding and directing the respondents to restore land of petitioners forthwith to the petitioners i.e. plot no.34/3 area of 2.3040 hect. situated in Village Lakhanpur, Tehsil and District Agra or to pay the compensation in respect of the occupied land under provisions the right to fair compensation and transparency in land acquisition and resettlement Act, 2013."
3. Learned counsel for the petitioners submits that father of petitioner no.1, father-in-law of petitioner no.2 and grandfather of petitioner nos.3, 4 and 5, namely Lal Chandra was bhumidhar of Plot Nos.34-A, 34-A/2, 34-Ba and 34-Ba/3 situated in Village Lakhanpur, Tehsil Sadar, District Agra. He had sold 6 bigha, 13 biswa and 5 dhoor land to Tarachand through registered sale deed and the name of Tarachand was recorded in the revenue record on 12.04.1971. Subsequently, the revenue department had given the possession of the land in question i.e. Plot No.34-A and 34-Ba to the Uttar Pradesh State Industrial Development Corporation, Kanpur (UPSIDC) in the year 1972 and the said land is occupied by the respondents without adopting the procedure of Land Acquisition Act, 1894 (in short, the Act) and without paying compensation to them. The petitioners have made representations dated 08.02.2024 and 18.3.2024 for restoring the land in question or to pay them compensation of the said land. In support of his submission, he has placed reliance on the Constitution Bench judgement of Hon'ble Supreme Court in Indore Development Authority Vs. Manoharalal and others reported in AIR 2020 SC 1496 as well as this Court in Writ-C No.9642 of 2022 (Ved Prakash Chauhan v. State of U.P. and others).
4. Per contra, learned Additional Chief Standing Counsel has vehemently opposed the writ petition and submitted that the acquisition took place in the year 1972 under the Act. Certain piece of land belonging to Lalchand was acquired and the award was made on 20.03.1975. The actual physical possession was also taken over by the Competent Authority on 04.08.1973. In lieu of the award, the notice was issued to Lalchand under Section 12(2) of the Act and the date was fixed on 09.04.1975. Inspite of the said notice, the amount of compensation was not lifted by Lalchand and the same was deposited in the District Court through challan no.05 dated 05.01.1976. If the original owner has not lifted the compensation, the petitioners, if entitled, may approach the Special Land Acquisition Officer (SLAO) for the disbursement of compensation, in case there are no legal impediments. He further submits that it is settled law that after the notification under Section 4 (1) is published in the Gazette, any encumbrance created by the owner does not bind the Government, and the purchaser does not acquire any title to the property. Admittedly, power under Section 17(4) of the Act was exercised dispensing with the enquiry under Section 5A and on service of the notice under Section 9 of the Act, the possession was taken. Consequently, the land vested in the State free from all encumbrances. In support of his submission, he has placed reliance on the judgment of the Hon'ble Apex Court in V. Chandrasekaran & Ors. vs. The Administrative Officer & Ors., (2012) 12 SCC 133.
5. Initially, the matter was taken up on 02.05.2024 and on the said date, learned counsel for the respondents was asked to obtain instructions and the matter was directed to be listed on 15.05.2024. Thereafter, the matter was listed on 15.05.2024 and 02.07.2024 and on the said dates, learned counsel for the respondents was accorded ten days' further time to obtain the instructions. Again the matter was taken up on 15.07.2024 and the coordinate Bench of this Court had passed the following order:-
"1. Perused the instructions received from competent authority-Land Acquisition, Agra. It has not been clarified in the instructions as to how much area is left with the petitioners after part acquisition of Khasra No. 34 and after the petitioners had executed two sale deeds in favour of different persons.
2. We require the A.D.M., Land Acquisition, Agra to file his personal affidavit and specify the total area of Khasra No. 34; total area belonging to the petitioners; the area sold by the petitioners; the area left with the petitioners; the area of which possession was taken by U.P.S.I.D.C. in pursuance of notification dated 19.06.1972 and the actual area now in possession of the petitioners.
3. To determine the actual area now in possession of the petitioners, a revenue team would be constituted and respondent no. 3 will ensure that the survey is conducted in his presence and in presence of the petitioners or their agent. The report of survey shall be brought on record by respondent no. 3 along with his affidavit.
4. Put up this case as fresh on 31.07.2024.
5. Sri Rajeev Gupta, learned Additional Chief Standing Counsel, shall communicate the instant order to respondent no. 3 for due compliance.
6. In response to the order dated 15.07.2024, Sri Rajiv Gupta, learned Additional Chief Standing Counsel has filed personal affidavit of the Additional District Magistrate (Land Acquisition), Agra dated 13.08.2024, which is already on record. He has placed reliance on paragraph nos.4 to 9 of the personal affidavit, which are quoted as under:-
"4. That in compliance of above orders, the required survey was made on 02.08.2024 in the presence of deponent and the petitioner no.1, Kamal Singh etc. as well as the officials of Revenue, National Highway Authority of India (NHAI) and U.P. State Industrial Development Authority (UPSIDA).
5. That as per consolidation records, as per CH-41, Khasra No.34, Area 19-14-8 is divided in two parts i.e. 34-Aa area 4-4-13 and 34-Ba Area 15-9-15. In Ch-45, Khata No.37 consists of Khasra No.34-Aa and Khata No.118 consists of Khasra No.34-Aa, Ba and Sa having total area 15-9-15.
6. That in the present Khatoni of 1427-1432 fasli (2019 to 2025) of Village Lakhanpur, out of bandobast area 19-9-8, khata no.156, gata no.34/3, area 2.3050 hectare is recorded as Government Land/Industrial Development Corporation (UPSIDC) after its acquisition, on which plots were carved out and allotted.
7. That on khata no.142, gata no.34/1/1 area 0.1400 hectare/0-12-4 is recorded as ceilling land. Most of the remaining portion of the land after acquisition for UPSIDC and declaration of ceiling, which was sold by the father of the petitioner except for 1420 sqm. This left out land in recorded (khata no.1 khasra no.34/1/1) in the name of Om Prakahs and Kamal Singh sons of Lalchand.
8. That out of sold out land of gata no.34, only 1000 sqm. land was acquired for NH-2,6 land road but it was not in possession of Kamal Sing etc./petitioners.
9. That on the acquired land of UPSIDC, factories and commercial etc are established while on the ceiling land of 1400 sqm., function place and Anganbadi center is established. As per revenue records, Kamal Singh etc. s/o late Lal Chand and others are living by having their houses and one primary school by having running roads as shown in Naksha-najri."
7. We have occasion to examine the record in question and find that as per CH-41, Khasra No.34 area 19-14-8 is divided into two parts i.e. 34-Aa area 4-4-13 and 34-Ba area 15-9-15. In CH-45, Khata No.37 consists of Khasra No.34-Aa and Khata No.118 consists of Khasra No.34-Aa, Ba and Sa, having total area 15-9-15. The State Government initiated acquisition proceedings in the year 1972 for planned development. Certain piece of land of Lalchand was acquired and the award was made on 20.03.1975. The Competent Authority had also handed over actual physical possession of the acquired land to UPSIDC on 04.08.1973. In lieu of the award, the notice was issued to Lalchand under Section 12(2) of the Act but he had not lifted the compensation, which was deposited in the District Court through challan no.05 dated 05.01.1976. The land in dispute was vested in the State free from all encumbrances.
8. We further find that in the present Khatauni of 1427-1432 (Fasli Year 2019-2025) of village Lakhanpur, out of bandobast area 19-9-8, Khata no.156, Gata no.34/3 area 2.3050 hec. is recorded in the name of UPSIDC after its acquisition, on which plots were carved out and the same were allotted. In Khata No.142, Gata no.34/1/1 area 0.1400 hec. is recorded as ceiling land. Lalchand sold out most of the remaining portion of land after acquisition and declaration of ceiling, except 1420 sqm. This left out the land (Khata no.10 Khasra no.34/1/1), which is recorded in the name of Om Prakash and Kamal Singh, sons of Lalchand. Out of sold out land of Gata No.34, only 1000 sqm. land was acquired for NH-2 (Six-lane road) and it was not in possession of Kamal Singh/petitioners. On the acquired land, factories/commercial establishments are set up while on the ceiling land of 1400 sqm., Anganbadi centre is established. In the instant matter, admittedly, power under Section 17(4) of the Act was exercised dispensing with the enquiry under Section 5A and on service of the notice under Section 9, the possession was taken over and the same was given to UPSIDC. Consequently, the land in question was vested in the State under Section 17(2) of the Act, free from all encumbrances.
9. In V. Chandrasekaran & Ors. vs. The Administrative Officer & Ors. (supra), the Apex Court has held that after the issuance of a notification under Section 4 of the Act, 1894, a purchaser has no right to challenge the acquisition but is entitled to compensation as he steps into the shoes of the original landowner. The relevant paragraph of the judgment is reproduced below:
"18. In view of the above, the law on the issue can be summarized to the effect that a person who purchases land subsequent to the issuance of a Section 4 notification with respect to it, is not competent to challenge the validity of the acquisition proceedings on any ground whatsoever, for the reason that the sale deed executed in his favour does not confer upon him, any title and at the most he can claim compensation on the basis of his vendor's title."
10. A similar view was taken by the Apex Court in U.P. Jal Nigam v. M/s. Kalra Properties Pvt. Ltd., (1996) 3 SCC 124, wherein the Hon'ble Apex Court held that a sale made after the publication of the notification under Section 4(1) of the Act, 1894, is void against the State. In that case, M/s. Kalra Properties had no right, title, or interest in the land and could not challenge the validity of the notification or the acquisition. It was held that any encumbrance created after the notification under Section 4(1) does not bind the Government, and the purchaser is merely entitled to claim compensation, stepping into the shoes of the original owner.
11. Considering the factual situation, which emerges from the record, we are not inclined to proceed further in the matter. Needless to say that in case, the petitioners move an appropriate application before the Court concerned, wherein the amount was deposited, the same shall be released in accordance with law.
12. With the aforesaid observations, the instant writ petition stands disposed off.
Order Date :- 13.9.2024 S.P.