Bhagmal vs State of U.P. and Others

Heard Shri U.N. Sharma, Senior Advocate assisted by Shri Kamal Singh Yadav; Shri D.S. Pandey and Shri Manvendra Nath Singh, learned Counsels for the petitioners. Learned standing counsel appears for state respondents. Shri A.S. Rana had accepted notice on behalf of U.P. Avas Evam Vikas Parishad. Shri C.S. Singh and Shri Madan Mohan have appeared and made submissions on behalf of Parishad.

By these writ petitions, the petitioners have challenged the proceedings for acquisition of land in Villages Agraula, Lutfullapur, Nabada, Masudabad-Bamla, Milk Bamla, Mandola, and Nanu, in Pargana Loni, District Ghaziabad by notifications under Sections 28 and 32 (1) of U.P. Avas Evam Vikas Parishad Adhiniyam 1965 (in short ''the Adhiniyam). They have also prayed for exemption of their respective Khasra numbers from the scheme.

Brief facts, giving rise to these petitions, are that the U.P. Avas Evam Vikas Parishad (in short ''the Parishad) a body corporate constituted under the Adhiniyam, published a notice u/s 28 of the Adhiniyam, notifying the ''Delhi-Saharanpur Road Bhumi Vikas Evam Grahsthan Yojna Ghaziabad City''. The northern and eastern boundaries of the area ( 1127.95 Hectares equivalent to 2787.12 Acres) included in the scheme, with the plot numbers, and the villages, were given in the notification u/s 28 of the Adhiniyam, inviting objections to be received by the Housing Commissioner (Department of Land Acquisitions) U.P. Avas Evam Vikas Parishad, Lucknow within 30 days of the publication dated 9.9.1998 in daily newspaper ''Time of India'' New Delhi. The notification was published in the Gazette on 19.9.1998, 26.9.1998 and 3.10.1998. A corrigendum of the notice dated 26.12.1998 was published on 30.1.1999. The notices u/s 29 were issued to the tenure holders.

The petitioners filed their objections and appeared before the ''Niyojan Samiti'' constituted for hearing the objections. It is stated that in response to the notice dated 15.7.2002 the petitioners submitted their grievance and produced all the relevant documents before the Executive Engineer of the Parishad on 31.7.2002. They submitted that previously their ancestors were residing in Village Milk Bamla. Due to floods in river Yamuna, the whole locality of Milk Bamla was got vacated by the State Government and the villagers purchased land in village Panchlok and constructed their residential houses. All the petitioners have their pucca houses, surrounded by boundary walls and cattle sheds on the land. The vacant land is used as sahan land. Village Panchlok is a hamlet of village panchayat Mandola. The Parishad, it is alleged by the petitioners, without giving adequate hearing to the petitioners and deciding their objections, published notification under sub section (1) of Section 32 of the Adhiniyam, exercising powers under sub section (2) of Section 31, and the approval of the scheme notified u/s 28 on 19.9.1998, by the State Government by its order dated 27.8.2007, in the Official Gazette U.P. on 27.10.2007. The list of the plots bearing to their Khasra numbers, total area in bighas, hectares and the area acquired in the plot in hectares was given in detail in the notification. The reasons, for which some of the areas in the plots was exempted, was mentioned against each plot. The land recorded as religious places and the land in occupation of National Power Grid Corporation was exempted from acquisition.

Some of the petitioners had earlier filed writ petitions in the year 2006 before the publication of notifications under sub section (1) of Section 32 of the Adhiniyam for exempting the land from acquisition. It is submitted that in pursuance of the directions issued by this Court on 18.11.2006 in Writ Petition No. 3809 of 2006 the Principal Secretary, Avas and Sahari Niyojan Anubhag had issued office Memorandum dated 21.12.2006 communicating the decision of the State Government to stay the process of proceedings of acquisition of land for ''Delhi-Saharanpur Road Bhumi Vikas Evam Grahsthan Yojna'' and deciding the representations accordingly. The representations were not decided. It is submitted that the award was not made and thus the entire proceedings have lapsed u/s 11-A of the U.P. Land Acquisition Act.

It is submitted that the State Government, by Government Order 8.8.2007, relying upon U.P. Avas Evam Vikas Parishad Vs. Jainul Islam and Another, Nagpur Improvement Trust Vs. Vasantrao and Others and Jaswantibai and Others, declared that the provisions of Land Acquisition Act, 1894 are applicable to acquisitions made by the Parishad and thus the land owners are entitled to compensation and benefit of all the provisions of the compensation under the Land Acquisition Act. The State Government, however, without giving the award, issued notification under sub section (1) of Section 32 on 11.9.2007, published on 27.10.2007, taking away valuable rights of the petitioners.

Learned Counsels for petitioners submit that the notification under sub section (1) of Section 28 does not give the details, namely boundaries of the area comprised in the scheme. The place or places, the dates and hours at which the map of the area, the particulars of the scheme and details of land in respect of which the betterment fee is proposed to be levied, could be seen and the dates by which the objections may be made were not notified. The notifications u/s 28 and Section 32 (1) of the Adhiniyam are equivalent to Sections 4 and 6 of the Land Acquisition Act. The notification u/s 32 (1), therefore, could not be published after a period of one year, from the date of notification u/s 28 (1) of the Adhiniyam. The notification u/s 32(1) has to be published as in the case of Section 6 of the Land Acquisition Act within one year of the last of the dates of publication of the notification, under sub section (1) of Section 28, which is equivalent to the notification u/s 4 of the Land Acquisition Act. The award has not been declared by the Collector and thus the entire proceedings have lapsed in terms of Section 11A of the Land Acquisition Act, which is applicable to the acquisitions made under the Adhiniyam.

Learned Counsels for the petitioners would further submit that the land is being acquired for raising multi-storied buildings for business purposes. The demolition of the petitioners'' houses for raising such constructions is in violation of the principles of natural justice and is wholly arbitrary, discriminatory and confiscatory. The land is not being acquired for any public purpose. The Parishad has decided to build multi-storied colonies after uprooting the petitioners from their houses.

Shri Madan Mohan, learned Counsel for the Parishad would submit that the notifications under sub section (1) of Section 28 and its corrigendum, not only clearly defined the boundaries but also gives the plot numbers. The objections to the scheme could be made within 30 days from the date of notice with the Housing Commissioner (Department of Land Acquisitions) U.P. Avas Evam Vikas Parishad, 104 Mahatama Gandhi Marg, Lucknow. The corrigendum published on 19.9.1998, notified that the map of the area and particulars of the scheme and details of the land proposed to be acquired could be seen at the office of the Parishad at 104 Mahatma Gandhi Marg, Lucknow and or at the office of Superintending Engineer, Circle VII, U.P. Avas Evam Vikas Parishad SA-4 Shashtri Nagar, Ghaziabad, on any working day between 11.00 AM to 03.00 PM. The scheme provided all the details and also invited objections, if any, to the proposal. Shri Madan Mohan would submit that the limitation for issuing notification u/s 6 within one year of the last of the dates of publication of notification u/s 4 of the Land Acquisition Act, is not applicable to the scheme notified under the Adhiniyam as the provisions of the Land Acquisition Act have been incorporated in the Adhiniyam. It is a case of legislation by incorporation, and not by reference. He would submit that the provisions of Section 11A of the Land Acquisition Act are also not applicable to the acquisition. The inspections were made and that wherever the constructions of houses and religious places were found, the scheme had exempted such areas from the acquisition. He submits that the objections of all the objectors was considered by the Niyojan Samiti and its recommendations were accepted by the Parishad.

In the counter affidavit of Shri Naveen Kumar Jain, Asst. Engineer, Construction Division-22, U.P. Awas Vikas Parishad, Vasundhara Ghaziabad filed through Shri C.S. Singh, Advocate, it is stated in paragraphs 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15 as follows:

That to remove the housing problems and for the planned development in the district of Ghaziabad the Parishad acquired a vast track of land for its scheme known as Delhi- Saharanpur Road, Bhumi Vikas Evam Grahasthan Yojna Ghaziabad City (In short here-in-after referred to as the Scheme).

That the said land was acquired by means of the notification dated 19.09.1998 issued u/s 28 of the Adhiniyam-1965 which is equivalent in effect to that of the notification 1965 which is equivalent in effect to that of the notification which is issued u/s 4 of the Land Acquisition Act. The said notification was published in the Gazette notification on 19.09.1998, 26.09.1998 and 03.10.1998 and issued corrigendum dated 30.01.1999.

That as per the notification issued u/s 28 of the Adhiniyam-1965 a total of 1127.95 hectares (equivalent to 2787.12 Acre) land was proposed to be acquired. The said land included the land of villages Agraula, Lutfullapur, Nabada, Masudabad Bamla, Milk Bamla, Mandola and Nanu.

That accordingly the tenure holders were issued notice u/s 29 of the Adhiniyam-1965 inviting objections against the acquisition of their land.

That thereafter the tenure holders filed objections which were duly considered by the Niyojan Samit and the Niyojan Samiti after making the spot inspection and considering the objections submitted its report on 21.07.2002 and recommended for the acquisition of the land.

That it would not be out of place to mention here that the land in dispute situate in village Nanu at the time of acquisition belonged to Bhagmal. Accordingly at the time of acquisition of the land a register showing all constructions in scheme area was prepared. There was no construction on this land at the time of publication of notification u/s 28 of the Adhiniyam-1965. Accordingly notice u/s 29 of the Act was sent to legal owner Bhagmal for submitting its objections to scheme if any. In pursuance of the said notice the original owner submitted its objections that the land was surrounded by a boundary wall inside. It was also stated that the land was used for tying the animals hence, the land should not be acquired. The said objection was numbered as Objection No. and the spot inspection made by Niyojan Samiti, it was found that the boundary wall was in dilapidated condition and the abadi did not exist. Accordingly, the Niyojan Samiti comes to the conclusion that the land in dispute is not liable to be excluded from the acquisition proceedings being abadi and accordingly it submitted the report.

That the U.P. Avas Evam Vikas Parishad in its 186th meeting held on 29.08.2003 accepted the recommendations of the Niyojan Samiti. Thereafter the U.P. Avas Evam Vikas Parishad sought for the approval of the scheme from the state of Uttar Pradesh u/s 31 (2) of the Adhiniyam-1965 which was accorded by the State of Uttar Pradesh on 27.8.2007.

That in the above background said notification issued u/s 28 of the Adhiniyam-1965 was followed by a declaration dated 11.09.2007 which was published on 27.10.2007 issued u/s 32 of the Adhiniyam-1965 which is equivalent in effect to that of a notification which is issued u/s 6 of the Land Acquisition Act.

That while acquiring the land for the above mentioned scheme the urgency clause was also invoked keeping in view the urgency involved in the case vide notification dated 14.3.2008 issued u/s 7/17 of the Land Acquisition Act.

That subsequently, vide notification dated 14.3.2008 issued in exercise of power u/s 17(1) of the Land Acquisition Act, 1894 (Act No. 1 of 1894) as amended in its application to the Adhiniyam-1965. The Governor of Uttar Pradesh directed for the expeditious execution of Delhi Saharanpur Bhoomi Vikas Evam Grah Sthan Yojna, Ghaziabad and notices were issued u/s 9(1)(3) of the Land Acquisition Act to the all tenure holders from 17.3.2009 to 8.4.2009.

In the supplementary counter affidavit of Shri Naveen Kumar Jain, Asstt. Engineer dated 3.11.2009, it is stated that to determine the fair market value of the acquired land of the villages Agraula, Masudabad Bamla, Milak Bamla, Lutfullapur, Nabada, Nanu and Mandola in Pargana Loni District Ghaziabad, under the U.P. Land Acquisition (Determination of Compensation and Declaration of Award by Agreement) Rules of 1997, a meeting was held with the representatives of villagers and the Superintending Engineer of the Parishad under the Chairmanship of Commissioner, Meerut Division. In this meeting dated 22.6.2009 the villagers agreed to a fair market value of Rs. 1100/-per square meter as compensation.

The rate of compensation was approved by the Commissioner in his letter dated 6.7.2009, and thereafter a Committee headed by District Magistrate, Ghaziabad has also approved the rate in its meeting dated 27.10.2009. The minutes were communicated to the Housing Commissioner of the Parishad for approving for payment and on his approval dated 28.10.2009 an amount of Rs. 1, 80, 32, 32, 992/( Rupees One hundred and eighty crores, thirty two lacs, thirty two thousand nine hundred ninety two only) has been deposited by the Parishad with the Special Land Acquisition Officer/Additional District Magistrate (Land Acquisition) Ghaziabad on 13.9.2009, under the Agreement Rules of 1997.

We have looked into the notification and find that the entire details as provided under sub section (1) of Section 28 of the Adhiniyam are given in the notice of the scheme published on 19.9.1998. The boundaries of the scheme have been clearly defined with plot numbers inviting objections within 30 days. By the corrigendum dated 30.1.1999 in the same newspapers the time of any working day in the office of the Parishad at Lucknow or at Ghaziabad was given for inspection of the details of the scheme. There are no averments in the writ petition to the effect that any of the petitioners had requested for inspection of the scheme.

In U.P. Avas Evam Vikas Parishad Vs. Jainul Islam and Another, the Supreme Court examined whether the amendments made in the Land Acquisition Act in the year 1984 will apply when the land is acquired under the Adhiniyam for executing the scheme. The Supreme Court observed that in view of its earlier decision in Nagpur Improvement Trust v. Ganesh Kulkarni and Ors. AIR 1973 SC 689 by seven Judges the Land Acquisition Act, as modified, stands incorporated in the Adhiniyam and so the Adhiniyam would not be affected by subsequent amendments in the Land Acquisition Act. The beneficial amendments, however, subsequently made in the Land Acquisition Act for determination and payment of compensation would apply to the acquisition under the Adhiniyam, to save the Adhiniyam from the vice of hostile discrimination. The Supreme Court observed:

...The amendments introduced in the L.A. Act by the 1984 Act were not part of the L.A. Act as applicable in the State of Uttar Pradesh, at the lime of passing of the Adhiniyam. The provisions of the L.A. Act, as amended in its application to U.P., with the modifications specified in the Schedule to the Adhiniyam have, therefore, to be treated to have been incorporated by reference into the Adhiniyam and became an integral part of the Adhiniyam and the said provisions would remain unaffected by the subsequent repeal or amendment in the L.A. Act unless any of the exceptional situations indicated in The State of Madhya Pradesh Vs. M.V. Narasimhan, can be attracted.

As regards the exceptional situations referred to in The State of Madhya Pradesh Vs. M.V. Narasimhan, it may be stated that the Adhiniyam and the L.A., Act cannot be regarded supplemental to each other. The Adhiniyam contains provisions regarding acquisition of land which are complete and self-contained. Nor can the provisions in the Adhiniyam be said to be in pari materia with the L.A. Act because the Adhiniyam also deals with matters which do not fall within the ambit of the L.A. Act. It cannot also be said that the 1984 Act, expressly or by necessary intendment, applies the said amendments to the Adhiniyam....

...Keeping in view the principles laid down in the said decisions of this Court, it has to be held that if the provisions of the Adhiniyam are so construed as to mean that the provisions of the L.A. Act, as they stood on the date of enactment of the Adhiniyam would be applicable to acquisition of land for the purpose of the Adhiniyam and that the amendments introduced in the L.A. Act by the 1984 Act relating to determination and payment of compensation are not applicable, the consequence would be that the provisions of the L.A. Act, as applicable under the Adhiniyam would suffer from the vice of arbitrary and hostile discrimination. Such a consequence would be avoided if the provisions of the Adhiniyam are construed to mean that the provisions of the L.A. Act, as amended by the 1984 Act, relating to determination and payment of compensation would apply to acquisition of land for the purposes of the Adhiniyam.... We are, therefore, of the opinion that on a proper construction of Section 55 of the Adhiniyam it must be held that while incorporating the provisions of the L.A. Act in the Adhiniyam the intention of the legislature was that amendments in the L.A. Act relating to determination and payment of compensation would be applicable to acquisition of lands for the purposes of the Adhiniyam....

In Nagpur Improvement Trust Vs. Vasantrao and Others and Jaswantibai and Others, the Supreme Court considered whether Section 6, 23(2) and 28 of the Land Acquisition Act were incorporated in the State Acts, or whether the Land Acquisition Act is being simply referred to in the State Acts including the Adhiniyam. The Allahabad High Court had not accepted the contention that notification u/s 32(1) should be published as in the case of Land Acquisition Act (then prevailing in the year 1967) within three years of the publication of notification u/s 28. The Supreme Court held:

....We have already held that the provisions of the Land Acquisition Act as modified by the State Acts and the Schedule thereto stand incorporated in the State Acts and therefore, the subsequent amendments of Section 6 by the Land Acquisition (Amendment and Validation) Act, 1967 (Act No. 13 of 1967) or by Act 68 of 1984, will have no effect on the acquisition made under the State Acts. The High Court of Allahabad has taken this view while the High Court of Bombay, Nagpur Bench, Nagpur has taken the contrary view. The appeals, therefore, which are directed against the judgment of the High Court of Allahabad must be dismissed and those against the judgment of the High Court of Bombay, Nagpur Bench, Nagpur must be allowed. Since we have held that the Land Acquisition Act stands incorporated in the State Acts, with the consequence that subsequent amendments to the Land Acquisition Act have no effect upon the acquisitions made under the State Acts, it is not necessary to consider the submission of Mr. Rakesh Dwivedi, Senior Advocate, that in view of the judgment of this Court in State of Kerala and Others Vs. T.M. Peter and Others, the absence of any time limit in the State Acts for issuance of Notification corresponding to the declaration u/s 6 of the Land Acquisition Act will not expose the State Acts to the charge of discrimination invoking the principles enshrined in Article 14 of the Constitution.

The applicability of Section 11A of the Land Acquisition Act to the Adhiniyam was considered by Supreme Court in Satya Pal and others Vs. State of U.P. and others, It was held that Section 11A of the Land Acquisition Act does not apply to acquisitions under the Adhiniyam.

In Girnar Traders v. State of Maharashtra and Ors. 2007 SC 3180 the Supreme Court delivered a split decision. Two Hon''ble Judges held on the interpretation of Section 127 of the MRTP Act that the appellants were entitled to reliefs. They observed that the applicability of Section 11A of the Land Acquisition Act was not required to be considered. One Hon''ble Judge, however, observed that the main question regarding applicability of Section 11A of the Land Acquisition Act to the acquisitions made under MRTP Act was required to be referred to a larger bench. The Judges as such referred the matter of applicability of Section 11A of the Land Acquisition Act to be considered by a larger bench. The larger bench has not decided the reference so far. The decision of the Supreme Court in Satya Pal''s case (supra) that Section 11A of the Land Acquisition Act does not apply to the acquisitions under the Adhiniyam thus still holds the field, and therefore it has to be held that the provisions of Section 11A of the Land Acquisition Act are not applicable to the schemes framed and notified under the Adhiniyam. Even otherwise once the notifications u/s 28 (1) and 32 (1) of the Adhiniyam have been published and the possession of the land has been taken, the acquisition will not lapse as the land would vest in the State free from all encumbrances vide Satendra Prasad Jain and Others Vs. State of U.P. and Others, and Awadh Bihari and Other Vs. State of Bihar and others, A similar view has been taken by this Court in Glove Mettal Industries and Anr. v. State of U.P. 2009 (4) ALJ 401.

On the discussion on the issues in law, as above, the judgments cited by the counsel of the petitioners namely Union of India (UOI) and Others Vs. Mukesh Hans etc., deciding issues of invoking urgency clause u/s 17(4) of the Land Acquisition Act; Om Prakash and Another Vs. State of U.P. and Others, regarding delay in issuing notification u/s 6 of the Land Acquisition Act and existence of abadi on the land; Union of India v. Nand Kishore AIR 1982 SC 462 dealing with change of the purpose of acquisition; Kanpur Development Authority v. Mahaveer Singh (2005) 10 SCC 320 regarding subsequent developments; and The State of Karnataka and Another Vs. Shri Ranganatha Reddy and Another, explaining the meaning of public purpose, are of no assistance to the petitioners.

So far as the submission regarding the acquisition of land on which constructions of houses are existing, we find from the notification u/s 32(1) that wherever the constructions were found either at the time of inspections or in the recommendations made by the ''Niyojan Samiti'' on the objections filed by the petitioners and after the inspections, the notification u/s 32(1) of the Adhiniyam has exempted such land from acquisition. The petitioners have not produced any such material which may satisfy us that any plot with constructions of residential house existing prior to the notification under sub section (1) of Section 28, has not been exempted. Apart from vague allegations that some khasra numbers have abadi of the petitioner and that the plot is used for storing agricultural implements, wood, tethering cattle and some electricity bills, there is no positive material to show that the land is actually used by the petitioners for the residence of their families. The notification under sub section (1) of Section 32 has also taken care to refer to classification of the land against the plots namely road, banjar, chak road, tubewell, boring, grove, usar, main road, and naveen parti etc. which shows application of mind and consideration of objections with reference to revenue records.

The land has been acquired for a housing scheme in National Capital Region. There is a pressing need of affordable houses in the country. The scheme thus serves public propose.

All the writ petitions are dismissed.