Mangal Sen Bhandula and Another vs U.P.Awas Evam Vikas Parishad and Others

P.C. Verma, J.—These two writ petitions relating to land acquisition proceedings involve common question of law and facts and relate to the same notification under Section 28 of U.P. Awas Evam Vikas Parishad Adhiniyum 1965 (hereinafter referred to as ''''Adhiniyum'') read with Section 4 of the Land Acquisition Act (hereinafter referred to as ''''Act'') dated 22.9.1984 and notification under Section 32 of the Adhiniyum read with Section 6 of the Act dated 9.2.1991 and with the consent of the parties are taken up together and are disposed of by this common order.

That by means of both writ petition No. 45174 of 2005 and writ petition No. 78236 of 2005 the petitioners prayed to issue a writ of mandamus declaring the land acquisition proceedings initiated by issuing notification dated 22.9.1984 under Section 28 of Adhiniyum read with Section 4 of Act and notification under Section 32 of the Adhiniyum read with Section 6 of the Act issued on 9.2.1991 have lapsed under Section 11A of the Act as neither actual physical possession over the disputed land was taken by the respondents nor the award was made within two years from the last publication of notification under Section 32 of the Adhiniyum read with Section 6 of the Act. The petitioners have further prayed that the respondents be restrained from demolishing the petitioners building/constructions over the disputed plot.

Learned counsel for the petitioners sought by making over a prayer to add the ground that neither the possession has been taken over of the disputed land nor the award has been made, therefore, the proceedings stood lapsed under Section 11A of the Land Acquisition Act. Permission was granted and the writ petition was accordingly amended.

That the defence in both the writ petitions was that for development of Majhola Bhumi Vikas Evam Girhsthan Yojna Sankhaya4, Part2 notifications under Section 28 & 32 of U.P. Awas Evam Vikas Parishad Adhiniyum 1965 (hereinafter referred to as ''''Adhiniyum'') which are equivalent to Sections 4 & 6 of the Land Acquisition Act (hereinafter referred to as ''''Act'') were issued on 22.9.1984 & 9.2.1991 respectively. The possession of all disputed plots have been taken by Parishad from the Special Land Acquisition Officer, Moradabad on 30.10.2004 & 9.11.2005. The respondents further contend that though award has not been given yet as possession has been taken, the land vested in Parishad and relied upon the cases Satendra Prasad Jain v. State of U.P. & Others [1993 (4) SCC 369, U.P. Avas Evam Vikas Parishad v. Jainul Ishlam & Another, [AIR 1998 Supreme Court 1028], Nagpur Improvement Trust v. Vasantrao & Others, [AIR 2002 Supreme Court 3499], Gauri Shankar Gaur & Others v. State of U.P. & Others, [AIR 1994 Supreme Court 169], Satya Pal & Others v. State of U.P. & Others, [AIR 1997 Supreme Court 2235], Ramesh Chandra Tiwari & Others v. U.P. Avas Evam Vikas Parishad, Lucknow & Others, [AIR 1996 Supreme Court 3274], Awadh Bihari Yadav & Others v. State of Bihar & Others, [AIR 1996 Supreme Court 122], Pathroo & Others v. U.P. Avas Evam Vikas Parishad & Others, [2002 (5) AWC 3665], Writ Petition No.9080 of 1993 (Aman Ullah Khan & 17 Others v. U.P. Avas Evam Vikas Parishad & 2 Others) & Writ Petition No.26791 of 2006 (Globe Metal Industries & Ors v. State of U.P. & Others). On the strength of these cases, it is contended by the respondents that provisions of Section 11A of the Act do not apply to the provisions of Adhiniyum.

The petitioners, however, contended that in view of the fact that Section 55 of the Adhiniyum as well as Land Acquisition (Amendment) Act 1984 (Act No.68 of 1984) both have been enacted under Entry42 of the Concurrent List, the subsequent amendment made in Central Act would prevail by virtue of Article 254 of the Constitution of India and Section 11A should apply to Adhiniyum and consequently if neither possession has been taken nor award has been made within two years, the entire land acquisition proceedings would stand lapsed.

In short the question is whether the amendments made by Central Act No.68 of 1984 inserting Section 11A to the Act could be applicable to Adhiniyum or not. If Section 11A of the Act is held to be applicable then admittedly, there was a gap of more than 3 years between the notifications under Section 28 of the Adhiniyum equivalent to Section 4 of the Act and Section 32 of the Adhiniyum equivalent to Section 6 of the Act and admittedly, as neither possession was taken within two years nor the award was made within two years from the date of notification under Section 32 of the Adhiniyum equivalent to Section 6 of the Act, the proceedings stood lapsed.

The legislation by adaptation is a well known method of legislation. Under our Constitution, the field of legislation is divided into three lists of 7th Schedule of the Constitution of India. If the adopted and adopting legislation falls within either ListI or ListII only then adoption by reference or adoption by incorporation can be made. If the subject matter is of Concurrent List and Central Legislation is made and State legislation is adopting the said legislation, then adaptation will be only by way of reference and it cannot be by way of incorporation for the reasons that if subsequent amendment is made in the Central Act and no amendment is made in the corresponding State Act, repugnancy will be there and by virtue of Article 254 of the Constitution Central Act will prevail.

Apart from the above, there is one important aspect to be considered, which has an important impact on the interpretation of Section 55 of the Adhiniyum. It is well settled that there is no prohibition against a legislature enacting a single statute in exercise of powers conferred by several entries in the list, which is within its competence. In the case of Hari Krishan Bhargav v. Union of India, AIR 1966 SC 619 (622), it has been held in paragraph 5 that �there is no prohibition against a parliament enacting in a single statute matters, which fell for the exercise of powers under two or more entries in the list1 of the 7th schedule. The illustrations of such legislation are not wanting in our statute book, and the fact that one of such entries is the residuary entry does not also attract any disability. The question is one of the convenience and not of power�. To the same effect is the decision of the Apex Court in Union of India v. Harbhajan Singh Dhillon, AIR 1972 SC 1061. In paragraph 78 of the said judgment, it has been held that �there is nothing in the constitution to prevent parliament from combining its powers under entry 86 list1 with its powers under entry 97 list1. There is no principle which debars parliament from relying on the powers under specified entries 1 to 96. List1 and supplement them with the powers under entry 97 list1 and Article 248, and for that matter powers under entries in the concurrent list.�

Section 55 of the Adhiniyum which confers power to acquired land for the purposes of the Act is quoted below :

�55. Power to acquire land. (1) Any land or any interest therein required by the Board for any of the purposes of this Act, may be acquired under the provisions of the Land Acquisition Act, 1894 (Act No.I of 1894), as amended in its application to Uttar Pradesh, which for this purpose shall be subject to the modifications specified in the Schedule to this Act.

(2) If any land in respect of which betterment fee has been levied under this Act is subsequently required for any of the purposes of this Act, such levy shall not be deemed to prevent the acquisition of the land under the Land Acquisition Act, 1894 (Act No.I of 1894)�

The Adhiniyum purports to have been made under entry6, entry5, entry66 of the State list and entry42 of the concurrent list. Section 55 confers power to acquire land for public purpose directly related and referable to entry42 of the concurrent list. The parliament amended the Act by means of Act No.68 of 1984 by inserting Section 11A which provides that Collector shall make an award under Section 11A of the Act within a period of two years from the date of declaration and if no award is made within that period the entire proceedings for the acquisition of land shall lapse. Certainly this amendment Act No.68/1984 has been enacted under entry42 of the concurrent list. Thus, Section 55 of the Adhiniyum and Amendment Act 68/1984 both have been enacted one by State Legislature and other by Central Legislature under entry42 of the concurrent list, the subsequent Central Legislature would prevail by virtue of Article 254 of the Constitution of India.

In Zaveribhai Amiadas v. State of Bombey, AIR 1954 SC 752 (757) the Supreme Court laid as follows :

�The principle embodied in Section 107(2) and Article 254(2) is that when there is legislation covering the same ground both by Center and by the province, both of them being competent to enact the same, the law of the Center should prevail over that of the State.

In Tika Ramji v. State of U.P. & Others, AIR 1956 SC 676 the Supreme Court held that �the pith and substance argument also cannot be imported here for the simple reason that, when both the center as well as the State legislatures were operating in the concurrent field there was no question of any trespass upon the exclusive jurisdiction vested in the center under entry 52 of list1, the only question which survived being whether, putting both the pieces of legislation enacted by the center and the State Legislature together, there was any such repugnancy.

The Supreme Court has considered the question of repugnancy in several cases. In Deep Chandra v. State of U.P., AIR 1959 SC 648 the result of the authorities was thus stated �Article 254 of the Constitution makes provision first, as to what would happen in the case of conflict between the center and State law with regard to subjects enumerated in concurrent list and secondly for resolving such conflict.

In the present case there is a clear repugnancy in Section 55 of the Adhiniyum and Central Act of 68/1984 as pointed out in aforesaid judgment of Vijay Kumar Sharma under heading i, ii, v, vii, ix. Both have become discriminatory also atleast from the view point of land holder. The Supreme Court has already held that beneficial provisions of enhanced compensation under Section 23(1A) of the Central Act would apply to Adhiniyum, then Section 11A confers greater right, where under the land holders gets his land back shall similarly apply. For the land holders it is immaterial whether the land is acquired for public purpose mentioned in Adhiniyum or for public purpose mentioned in Central Act. The land can be acquired under both the Adhiniyum as well as under the Act for public purpose. By virtue of Section 11A of the Central Act by not making award within two years the land reverts back to him while under Section 55 he will be deprived of his land inspite of the fact that award has not been made within two years. Thus, on account of implied repeal and also on the ground of discrimination it must be held that Section 11A applies to Adhiniyum if neither award nor possession has been taken within two years. The notification under Section 32 of the Adhiniyum read with Section 6 of the Act was published in the official Gazette on 19.11.2005 and paper possession has been taken on 5.4.2008, i.e. beyond two years and award has not yet been made, the acquisition proceedings stood lapsed.

It is important to mention here that one of us (P.C. Verma, J) has already taken similar view in Civil Misc. Writ Petition No.50056/2010 (Ram Avtar & Others v. State of U.P. & Others) that Section 11A of the Act is applicable to the Adhiniyum, as such, Section 11A of the Act is applicable to the Adhiniyum.

It may also be mentioned that in the present case the petitioners have categorically asserted in writ petitions and supplementary affidavit, supplementary rejoinder affidavits that the notifications do not contain the disputed plots of the petitioners. In the counter affidavit & supplementary counter affidavits the respondents have tried to show that the disputed plots were included in the notifications. However, in possession memo dated 20.10.2004 filed as Annexure3 to the counter affidavit filed in Writ Petition No.45174/2005 though plot No. 935 & 936/1, 836/2 are mentioned but it is also mentioned that over these plots boundary walls, Mango trees, Ucliptics trees, godown, residential houses of the petitioners also exist and there is no evidence shown that the petitioners were dispossessed from these constructions or trees which are quite large in number. The possession memo also does not contain signatures of any witnesses including the petitioners in whose presence the delivery of possession was made. Similar is the position with regard to plot Nos.405, 1011 & 1020/2 mentioned in Writ Petition No.78236/2005. These possession memo do not prove that actual physical possession was taken from the petitioners and they were dispossessed from the disputed plots over which their constructions, houses and tress are existing even today. Moreover, in recent case of Megh Singh v. State of U.P. & Others, [2010 (9) ADJ 324 (DB)] this Court has held that �Expression ''''action or proceedings� occurring in Explanation to Section 11A can not be given different meaning depending upon whether the case is covered by Section 17 or otherwise. Express �proceedings� takes within its ambit taking possession in pursuance of acquisition of land shall lapse if award under Section 11 is not made within period of two years from the notification under Section 6. If mandatory requirement of Section 11A of making award within two years is not fulfilled, taking of possession as well as vesting of land would also lapse and land would revert back to land owner�.

Thus, in view of the aforesaid discussion, it is held that the land acquisition proceedings initiated by notification dated 22.9.1984 under section 28 of the Adhiniyum read with Section 4 of the Act and notification dated 9.2.1991 under Section 32 of the Adhiniyum read with Section 6 of the Act stood lapsed and the petitioners continue to be the Bhumidhar/owners of the disputed land.

Both the writ petitions are allowed. The proceedings started by notifications dated 22.9.1984 & 9.2.1991 have lapsed on account of admitted position that award has not been delivered within two years. A writ of mandamus is issued commanding the respondents not to interfere in peaceful possession of the petitioners over the disputed land and the constructions existing thereon.

(Petitions allowed)