Brahm Singh and Others vs State of U.P. and Others

Brahm Singh and three others are before this Court assailing the validity of the impugned notice dated 14.10.2015 published on 25.10.2015 issued by respondent No. 4 (Secretary, U.P. Awas Evam Vikas Parishad, Lucknow) and for direction to the respondents not to dispossess the applicants/petitioners from their land in dispute i.e. Khasra No. 102/1, 202/2, 114/1, 114/2, 115 and 116 situate in Village Mohiuddinpur, Kanawani, Pargana-Loni, Tehsil Dadri, Distt. Gautam Budh Nagar.

It transpires from the record that a large area was acquired by the U.P. Awas Evam Vikas Parishad, Lucknow (in short "the Parishad") for scheme known as "Delhi road and Hindan cut between Bhumi Vikas Evam Grihsthan Yozna No. 3, Ghaziabad" (in short "the scheme in question") for solving the acute housing problem in Ghaziabad Town. Consequently, a notice under Section 28 of the U.P. Awas Evam Vikas Parishad Act, 1965 (in short, "the Act of 1965") was issued on 26.6.1982. In the said notification, the petitioners'' Khasra Nos. 10, 57, 102, 115 and 116 were also proposed to be acquired. Thereafter, notice under Section 32 of the Act of 1965 was also issued on 28.2.1987. It has also been reflected from the record that notice under Section 9 of the Land Acquisition Act, 1894 had also been issued to the tenure holders for filing their objections. Thereafter, the petitioners had proceeded to file objection before the Special Land Acquisition Officer (SLAO). Through their objections the petitioners had prayed for exclusion of their land from the acquisition. It is relevant to indicate that at the same time, the petitioners while filing their objections, had also proposed that in case their land were to be acquired, then they claim the compensation at the rate of Rs. 250/- per sq. yard. Each and every objections were considered in detail and finally the award was made on 27.2.1989. The details have also been furnished in paragraphs 17, 18 and 19 of the writ petition regarding compensation. The compensations were made regarding Khasra Nos. 10, 57, 102, 115 and 116. It also appears that certain excess amount had been paid, which were returned by the petitioners and at present the petitioner are disputing that the compensation of Rs. 2,03,364.05 was paid to the petitioners only of Khasra No. 10 and 57 but as far as Khasra No. 102, 115 and 116 are concerned, no compensation has been paid till date. It has also been alleged that the respondents had adopted pick and choose policy, certain lands were exempted from the acquisition and even the land of M/s. Ram Prasth Builders was also released by the authority concerned.

At present the petitioners are before this court challenging the proceedings, which are initiated under Section 13(3) of the U.P. Urban Planning and Development Act, 1973 (in short "the Act of 1973") precisely on the ground that at the time of notice under Section 28 of the Act of 1965 the public purpose was shown for the construction of house, but now at present in the garb of the present impugned notice the respondent authorities have proceeded to change the Master Plan 2021 and now they have proceeded for establishment of IT Park. The respondents have further proceeded to sell out the land in question to the private builders and IT companies. As such the Parishad has deviated from the actual purpose for which the land was acquired in the year 1982 and now by this act the Parishad is making profit by selling the acquired land, which was meant for public purpose, on higher price to the private builders and companies and has frustrated the purpose for which the land was acquired. Therefore, the Court must come to rescue and reprieve of the petitioners.

On the other hand, Mr. Shri Kant, learned counsel for the contesting respondents has vehemently opposed the writ petition and submits that at present the petitioners may not be permitted to challenge the acquisition proceedings as the land in question was acquired way back in early 1980s and thereafter the land in question was vested absolutely free from all encumbrances in the State and as a beneficiary, the Parishad has every right to utilise the land in question for public purpose. The allegations are unwarranted and if the petitioners have really some genuine grievance, then they have every right to file objections, which has been called under Section 13(3) of the Act of 1973 and as such no indulgence is required in the matter.

We have proceeded to examine the record in question. As per the record, it is reflected that in the present matter notice under Section 28 of the Act of 1965 was gazetted on 26.6.1982, thereafter, notice under Section 32 was also published on 28.2.1987. It is relevant to indicate that the petitioners have categorically brought on record to indicate that in the matter the award was made and compensations were made to the petitioners. No doubt in the writ petition, some cursory averments have been made regarding the nonpayment of compensation to the certain plots but no relief has been sought either for payment of compensation or for quashing the notifications but at present in the garb of notice under Section 13(3) of the Act of 1973, they are indirectly challenging the acquisition proceedings and the proposed amendment in the master plan, wherein the authority has proceeded to invite an objection under Section 3 of the Act of 1973. For ready reference, the relevant extract of the notice dated 14.10.2015 are reproduced hereunder:--

The present dispute is relating to village Mohiuddinpur Kanawani, Pargana Loni, Tehsil Dadri, Distt. Gautam Budh Nagar and as per the notification dated 14th October, 2015 issued under Section 13(3) of the Act of 1973 the land in question was reserved for "Institutional Area" in the Master Plan 2021 and now they proposed an amendment in Master Plan to be used as "Mixed Use". The respondent authorities had invited objections under Section 13(3) of the Act of 1973. Just to appreciate the present controversy, it is relevant to reproduce Section 13 of the Act of 1973, which is as under:--

"13. Amendment of Plan-

(1) The Authority may make any amendments in the master plan or the zonal development plan as it thinks fit, being amendments which, in its opinion do not effect important alteration in the character of the plan and which do not relate to the extent of land uses or the standards of population density.

(2) The State Government may make amendments in the master plan or the zonal development plan whether such amendments are of the nature specified in Sub-section (1) or otherwise.

(3) Before making any amendments in the plan, the Authority, or as the case may be, the State Government shall publish a notice in at least one newspaper having circulation in the development area inviting objections and suggestions from any person with respect to the proposed amendments before such date as may be specified in the notice and shall consider all objections and suggestions that may be received by the Authority or the State Government.

(4) Every amendment made under this section shall be published in such manner as the Authority or the State Government, as the case may be, may specify, and the amendments shall come into operation either on the date of the first publication or on such, other date as the Authority or the State Government, as the case, may be, may fix.

(5) When the Authority makes any amendments in the plan under Sub-section (1) it shall report to the State Government the full particulars of such amendments within thirty days of the date c)n which such amendments come into operations.

(6) If any question arises whether the amendments proposed to be made by the authority are amendments which effect important alterations In the character of the plan or whether they relate to the extent of land-uses or, the standards of population density, it shall be referred to the State Government whose decision, thereon shall be final.

(7) Any reference in any other Chapter, except Chapter III, to the master plan or the zonal Development plan shall be construed as a reference to the master plan or the zonal development plan as amended under this section."

As per Section 13 of the Act of 1973 there is exhaustive scheme provided to initiate amendment in the Master Plan or Zonal Plan as the case may be and such alteration in the Master Plan or Zonal Plan is permissible subject to approval of the State Government and as such the framing of Master Plan or Zonal Plan is absolute prerogative of the development authority or the Parishad. A complete procedure is provided in the Act and as such the Authority on spot is well equipped to look into the requirement of the land for particular purpose and as per their own wisdom they have proceeded for change in the Master Plan and consequently they have proceeded to invite objections in this regard. Therefore, we refrain ourselves to interfere in such exercise.

We are of the opinion that in view of notice dated 14.10.2015 published on 25.10.2015 by invoking the powers of Section 13(3) of the Act of 1973, the petitioners cannot claim for a direction to the respondents not to dispossess the petitioners from the land in dispute, which is acquired land and at no point of time the petitioners had proceeded to challenge the acquisition proceedings.

We proceed to make mention that as per the award it is reflected that for the Village Mohiuddinpur Kanawani the total area of 145.4875 acre was under acquisition out of which for 141.9434 acre land the award was made and remaining 3.514 acre land belongs to Gram Sabha. Therefore, it is not disputed that for the area of 141.9434 acre land, the award was made and no land was left over and as such at this belated stage specially after three decades of acquisition, the Court is not inclined to accept that certain land was left over. Moreover, this is not the dispute at present, therefore, there is no need to adjudicate the same.

It is settled law that once the possession has been taken over by the authority concerned, subsequent thereto the retention of possession would tantamount only to illegal or unlawful possession. Hon''ble the Apex Court in Balmokand Khatri Educational and Industrial Trust Amritsar v. State of Punjab & Ors., , AIR 1996 SC 1239 has observed as under:--

"It is seen that the entire gamut of the acquisition proceedings stood completed by April 17, 1976 by which date possession of the land had been taken. No doubt, Shri Parekh has contended that the appellant still retained their possession. It is now well-settled legal position that it is difficult to take physical possession of the land under compulsory acquisition. The normal mode of taking possession is drafting the Panchnama in the presence of Panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would tantamount only to illegal or unlawful possession."

This aspect has also been dealt with by Hon''ble Apex Court in Bhagat Singh v. State of U.P. & Ors., , 1999 AIR SCW 101 and relying upon Constitution Bench judgment of the Apex Court in Aflatoon v. Lt. Governor of Delhi, , (1975) 4 SCC 285, it was observed as under:--

"The next question relates to the contention of the appellants that under the Master Plan for Agra City, the land of the appellants which is proposed for acquisition is in an area where the permitted use is for Might industries'' and therefore it will not be permissible to use the acquired land for purposes of a market Yard. It is pointed out that in fact later on the permitted use was modified and the land is now shown as ''green belt''. On the other hand, it is submitted for the respondents that if the land is proved to have been acquired for a valid public purpose, then the beneficiary of the land acquisition can later on move the concerned authority for change of land use.

An analogous issue arose in the case Aflatoon v. Lt. Governor of Delhi, , [1975] 4 SCC 285, In that case a notification was issued under Section 4(1) of the Act for acquisition of a vast extent of land for the planned development of Delhi. The said acquisition was questioned. On of the contentions was that for such a purpose, development, action had to be taken only under the Delhi Development Act, 1957 and that too by the Chief Commissioner of Delhi Under that Act and not by the Central Government under the Land Acquisition Act. It was there argued that inasmuch as there was no Master Plan nor Zonal Plan in existence on the date of notification, the acquisition was bad. This Court rejected objection raised by the owners and observed, after referring to Sections 12 and 15 of the Delhi Development Act. 1957, as follows (para 23):

"The planned development of Delhi had been decided upon by the Government before 1959, viz., even before the Delhi Development Act came into force. It is true that there could be no planned development of Delhi except in accordance with the provisions of the Delhi Development Act after that Act came into force but there is no inhibition in acquiring land for planned development of Delhi under the act before the Master Plan was ready. (See the decision in Patna Improvement Trust v. Smt. Lakshmi Devi, , [1963] Suppl. 2 SCR 312). In Other Words the fact that actual development is permissible in an area other than a development area with the approval of sanction of the local authority did not preclude the Central Government from acquiring the land for planned development under the Act. Section 12 is concerned only with the planned development. It has nothing to do with acquisition of property; acquisition generally precedes development."

This Court observed:

"For planned development in an area other than a development area, it is only necessary to obtain the sanction or approval of the local authority as provided in Section 12(3). The Central Government could acquire any property under the Act and develop it after obtaining the approval of the local authority. "

This above decision of this Court was followed by the Allahabad High Court in Kendriya Karamchari Evam Mura Sahkari Avas Samithi Ltd. etc. v. State of U.P., (1988) U.P.L.B.RC. 645. It was held in that case that the government could acquire any property under the Act and later develop the same after obtaining the necessary approval of the concerned local authority under the Development Act. It was stated (at page 651):

"Amendment of Master plan is permissible with the approval of the State Government under Section 13 of the U.P. Urban Planning and Development Act, 1973 and in the present case the master; plan showing the area in question as green belt was modified with the approval of the State Government which approval no doubt Was accorded subsequent to the issue of notification under Section 4 and 6. However, as observed by their Lordships of the Supreme Court the mere fact that till the date of the issue of the notification under Section 4 the necessary approval of the Government had not been obtained tan not preclude the Government from acquiring the land for planned development under the Land Acquisition Act. Acquisition generally precedes development and consequently the land in question could be acquired in anticipation of the approval of the State Government for the change of the land use of the Master plan prepared by the Development Authority;"

As pointed out in the above Judgments, there is no need that the land proposed to be acquired by the Government for a particular public purpose should be for the same purpose or use mentioned in the Master Plan or Zonal Plan for the said area. Nor will the acquisition be invalid merely because the land proposed to be acquired is for a purpose other than the one permitted by the Master Plan or Zonal Plan applicable to that locality. Acquisition will be valid if it is for a public purpose even if it is not for the type of user permitted by the Master plan or Zonal plan in force at the-time. the acquisition is made. It will be for the beneficiary of the acquisition to move the competent authority under the Development Act and obtain the sanction of the said authority for suitable modification of the Master Plan so as to permit the use of the land for the public purpose which the land is acquired. In fact, it may be difficult for the beneficiary of the acquisition to move the competent authority under the Development Act seeking permission to change of land use even before the land is acquired or before possession is given to the beneficiary. On the principle stated in Aflatoon ''s case, it is clear that acquisition for a public purpose and obtaining permission from competent authority under the concerned Development Act for change of land use are different from one another and the former is not dependent upon the latter.''

For the aforesaid reasons this contention of the appellants is rejected."

The similar issue has been considered by Hon''ble Apex Court in Sita Ram Bhandar Society, New Delhi v. Lt. Governor, Govt. of N.C.T. Delhi & Ors., , AIR 2010 SCW 707, wherein it is held as under:--

"Still dissatisfied, the appellant filed W.P. No. 623 of 1995 in the Delhi High Court challenging some facets of the alleged violation of the Master Plan of 2001 which had statedly made the entire proceedings for the planned development of Delhi incohate and which had rendered the acquisition without any authority of law. This matter came up before the Delhi High Court after notice on 20th February 1995 on which the High Court observed that the petitioner was seeking two distinct prayers in the Writ Petition, (1) that the land which had been CA Nos. 4849-4850/2000 acquired under the Land Acquisition Act should be released from acquisition and (2) that the DDA should not be permitted to use the aforesaid land for a purpose other than that postulated in the Master Plan and the Zonal Development Plan and as the two prayers were mutually distinct and pertained to different causes of action, one writ petition was not maintainable. On this, the learned senior counsel for the appellant, Mr. R.K. Anand stated that he would file two separate writ petitions for which liberty was granted and the papers of CWP No. 623 of 1995 were accordingly returned to the counsel. The appellant thereupon moved two writ petitions i.e. W.P. Nos. 1628/1995 praying that the respondent DDA be restrained from taking over possession of the land and Writ Petition No. 1629/1995 seeking to challenge the land acquisition proceedings which had been initiated by the Notification under Section 4 and Declaration under Section 6 of the Act in the year 1959 and 1966 respectively and also pleading that as the possession had not been taken, the land be released under Section 48 of the Act. The Division CA Nos. 4849-4850/2000 Bench while dealing with the question of possession held that the writ petitioner had only relied on two stray entries in two Khasra Girdawaris for the period 13th October 1980 to 11th March 1981 which had recorded the land to be "Gair Mumkin Kotha Pukhta and Char Diwari" and that this entry was meaningless in the light of the fact that the land had been described as "Rosli" (agricultural) and not a built up property in the award No. 36/80-81 dated 19.6.1980 and that in any case the plea appeared to be an after thought as it had not been taken by the petitioner though it was available at the time when Writ Petition No. 1068/1980 (in the Delhi High Court) and Writ Petition No. 2220/1981 had been directly filed in this Court. The Court further held that it was clear from the proceedings recorded by Shri Lal Singh Naib Tehsildar, Land Acquisition, on 20th June 1980 in the presence of a large number of Revenue Officials that possession had indeed been taken over on that day after demarcation had been made with respect to 1933 bighas 2 biswas, including the land belonging to the appellant, and that boundary pillars had been affixed CA Nos. 4849-4850/2000 round the demarcated land and that the possession had further been handed over to Shri N.N. Seth, Tehsildar on 20th, 21st, 23rd and 24th of June 1980. The Court also noted that the proceedings aforementioned were witnessed as to their authenticity by Shri N.N. Seth, and the two DDA Officials, Shri Raj Bahadur and Shri Gulab Singh. The Division Bench in this background observed that possession had, in fact, been taken over after appropriate proceedings. The two writ petitions were accordingly dismissed by the Division Bench of the Delhi High Court vide the impugned judgment leading to the present appeals as a consequence.

In Om Prakash''s case (supra) the basic issue was as to whether the land which was the subject matter of acquisition could be acquired in view of the State policy that Abadi land was not to be acquired. It is in this connection, the Court observed that there appeared to be no conclusive evidence that possession had been taken from the land owner, and the matter was left open for the land owner to approach the State Government under Section 48 of the Act to have land released. In P.K. Kalburqi''s case (supra), a reference was made to the judgment in Narayan Bhagde''s case (supra) and it was once again reiterated that the procedure for taking possession would depend upon the nature of the land and the extent thereof. A cumulative reading of the aforesaid judgments would reveal that while taking symbolic and notional CA Nos. 4849-4850/2000 possession is perhaps not envisaged under the Act but the manner in which possession is taken must of necessity depend upon the facts of each case. Keeping this broad principal in mind, this Court in Tamil Nadu Housing Board v. Viswam (D) by LRs. , AIR 1996 SC 3377 after considering the judgment in Narayan Bhagde''s case, observed that while taking possession of a large area of land (in this case 339 acres) a pragmatic and realistic approach had to be taken. This Court then examined the context under which the judgment in Narayan Bhagde''s case had been rendered and held as under:

"It is settled law by series of judgments of this Court that one of the accepted modes of taking possession of the acquired land is recording of a memorandum or Panchanama by the LAO in the presence of witnesses signed by him/them and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. It is common knowledge that in some cases the owner/interested person may not cooperative in taking possession of the land."

Mr. Gupta has, with great emphasis, pointed out that from the affidavit dated 30th July 1996 sworn by Mr. G.S. Meena, Under Secretary, Land and Building Department, it was clear that the appellant continued to remain in possession on account of the stay of dispossession granted by the High Court on 15th July 1981 in WP No. 2220/1981 and the confirmation of the said order on 16th September 1982 and as such the stand of the appellants that possession had been taken was not correct. We have, however, already observed that possession had been taken between 20th and 24th June 1980, and the acquired land thus stood vested in the State CA Nos. 4849-4850/2000 free from all encumbrances under Section 16 of the Act. It is also relevant that the afore-referred writ petition was dismissed meaning thereby that the said order should automatically be vacated as well. Even assuming for a moment that the petitioner had re-possessed the acquired land at some stage would be of no consequence in view of the provisions of section 16 ibidem. In Narayan Bhagde''s case (supra) one of the arguments raised by the land owner was that as per the communication of the Commissioner the land was still with the land owner and possession thereof had not been taken. The Bench observed that the letter was based on a misconception as the land owner had re-entered the acquired land immediately after its possession had been taken by the government ignoring the scenario that he stood divested of the possession, under Section 16 of the Act. This Court observed as under:

"This was plainly erroneous view, for the legal position is clear that even if the appellant entered upon the land and resumed possession of it the very next moment after the land was actually taken possession of and CA Nos. 4849-4850/2000 became vested in the Government, such act on the part of the appellant did not have the effect of obliterating the consequences of vesting."

To our mind, therefore, even assuming that the appellant had re-entered the land on account of the various interim orders granted by the courts, or even otherwise, it would have no effect for two reasons, (1) that the suits/petitions were ultimately dismissed and (2) that the land once having vested in the Government by virtue of Section 16 of the Act, re-entry by the land owner would not obliterate the consequences of vesting.

We must also observe that the petitioner has been able to frustrate the acquisition and development of the land right from the 1980 onwards by taking recourse to one litigation after the other. The record reveals that all the suits/writ petitions etc. that had been filed had failed. Undoubtedly, every citizen has a right to utilize all legal means which are open to him in a bid to vindicate and protect his rights, but if the court comes to the CA Nos. 4849-4850/2000 conclusion that the pleas raised are frivolous and meant to frustrate and delay an acquisition which is in public interest, deterrent action is called for. This is precisely the situation in the present matter. The appeals are, accordingly, dismissed with costs which are determined at Rupees two lacs. The respondents, shall, without further loss of time proceed against the appellant."

As per the judgments cited above, there is no need that the land proposed to be acquired by the Government for particular public purpose should be used for the same purpose mentioned in the Master Plan or the Zonal Plan for the said area nor will the acquisition be invalid merely because the land proposed to be acquired is for a purpose other than one permitted by the Master Plan or Zonal Plan applicable to that locality. Moreover it is for the beneficiary of the acquisition to move to the competent authority under the Act of 1973.

In the present matter, the Parishad has proceeded for land use change as per the provisions contained under Section 13(3) of the Act of 1973 and as enumerated in detail it is categorically reflected that the land use change from ''institutional area'' to ''mixed use'' is also public purpose, therefore, the action of the respondents are not arbitrary and the same is in conformity with the provisions of the Act of 1973.

So far as the second prayer, not to dispossess the applicants/petitioners from the land in question, is concerned, it is liable to be rejected only on the ground of limitation as the petitioners have not acted diligently and remained inactive. For a considerable long period of time after the acquisition, the petitioners have never questioned the validity of the acquisition or had approached to any competent forum either for release of the land or for injunction. It is the primary responsibility of the petitioners to satisfy the Court that they were prevented by any sufficient cause from prosecuting their case. No doubt sufficient cause should be given a liberal interpretation to ensure that substantial justice is done but negligence, inaction or lack of bonafides cannot be imputed to the party concerned. We do not subscribe the second prayer on the ground of laches.

In view of above, we are not inclined to interfere in the matter under Art. 226 of the Constitution of India. However, if the petitioners have any grievance regarding the change of plan or any change in the Master Plan 2021, they would have at liberty to move appropriate application and file objections against the same but in the garb of the said proceedings, they would not be entitled to any reprieve. The writ petition is dismissed accordingly.