Vijay Singh and Another vs State of U.P. and Others

We have heard Shri G.N. Verma assisted by Shri Sanjay Kumar for the Petitioners. Shri M.C. Tripathi, Addl. Chief Standing Counsel appears for the State Respondents. Shri Ramendra Pratap Singh appears for New Okhla Industrial Development Authority (Noida). Shri Rahul Sahai and Shri Vimlendu Tripathi appear for Respondent Nos. 5 and 6 respectively.

By this writ petition the Petitioners have prayed for directions to quash the notifications dated 24th March, 1988 u/s 4/17 and notification u/s 6 of the Land Acquisition Act, 1894 (the Act) dated 5th July, 1988 applying Section 17(1) of the Act, issued by the State Government for planned industrial development by New Okhla Industrial Development Authority (NOIDA). The Petitioners have also prayed for directions not to sell, transfer or alienate the land of the Petitioners to any other person; not to change the nature of the land in dispute; quash all the incidental proceedings, which have taken place after the Petitioners'' land has been acquired u/s 9, 17(4) of the Land Acquisition Act, 1894, and to give opportunity to the Petitioner u/s 5A of the Land Acquisition Act.

It is submitted by Shri G.N. Verma, Sr. Advocate that though the land was acquired by notification u/s 6 applying the provisions of Section 17(1) on 5th July, 1988, the possession was taken on 28.3.1990 and that award was declared on 17.8.1990, the NOIDA did not utilise the land for planned industrial development for about 20 years. The land has now been proposed and is used contrary to the purpose for which the land was acquired. The State Government and the Noida authorities have played fraud with the Petitioner for acquiring the land on payment of a very small amount as compensation and thereafter allotting it on much higher rate. The land acquired in Village Parthala Khanjarpur, Pargana and Tehsil Dadri Distt. Ghaziabad has been carved out into Sectors, 117, 119, 122 and 123 and has been allotted to Respondent Nos. 5, 6 and 7 for multihousing complex. He submits that though the State has power to acquire the land and that after taking over possession the land vests free from all encumbrances in the State for which compensation has also been paid, and for which the Petitioner had made application u/s 18 for enhancement, as an oustee of the land the Petitioner has a right to question the use of the land even after it has been acquired and the proceedings have concluded.

In the counter affidavit filed on behalf of Noida it is stated that the land was acquired by notifications issued u/s 4(1) read with Section 17, proposing to acquire total area of 115.562 acres in Village Parthala, Khanjarpur for planned industrial development, published on 24.3.1988, the notification u/s 6 published on 5.7.1988, the possession of the land was taken on 28.3.1990 and award was declared on 17.8.1990. The possession memo has been annexed to the counter affidavit. The Petitioners preferred a reference u/s 18 of the Land Acquisition Act being LAR No. 525 of 1990, 140 of 1990 before the 9th ADJ, Ghaziabad. The reference was allowed against which State and NOIDA preferred First Appeal No. 477 of 1995. The first Appeal was allowed and the matter was remanded. It is still pending for deciding reference in Court.

In the counter affidavit filed on behalf of M/s Amrapali Patel Platinum, the allottee of the land it is stated that proceedings of compensation u/s 18 of the Land Acquisition Act commenced, an award dated 17.8.1990 was made fixing compensation at Rs. 30.75/- per Sq. Yard. The Petitioners were not satisfied. They filed application u/s 18 for reference. The District Judge by judgment and award dated 23.11.1993 enhanced the compensation to Rs. 72/- per sq. yard. The State of U.P. filed First Appeal No. 464 of 1995. By judgment dated 31.3.2004 the matter was remanded back to the District Judge and is still pending disposal before the Addl. District Judge, Ghaziabad.

It is stated that the Respondent No. 6 and several other developers participated in an auction conducted by the Noida authorities for which advertisement was made in the newspapers. The Respondent No. 6 was declared successful bidder for Plot No. GH-01 in Sector-119, Noida. A lease deed was executed and registered on 1.5.2007. The Respondent No. 6 has allotted flats and has started constructions, which are on the verge of completion. The company has availed finance for the project from Bank of Maharashtra and LIC Housing Finance Ltd.

In paragraph 11 of the counter affidavit of Shri Anil Kumar Sharma, the Managing Director of Respondent No. 6 that the company through its joint venture company has entered into compromise with Shri Vijay Singh-Petitioner No. 1 in this writ petition and others for payment of additional amount at the rate of Rs. 19.63 per sq. mtr. for not interfering in the possession of Respondent No. 6. The agreement has been annexed as Annexure No. CA-4 to the counter affidavit. In this agreement between Shri Kailash and others including Vijay Singh (Petitioner No. 1) dated 4.1.2008, the first party has taken a sum of Rs. 19.63 per sq. yard (total amount of Rs. 16,83,863/-) by bank draft for not interfering in the right of Respondent No. 6 as allottee for making construction over the land. The receipt of payment of the amount has also been annexed.

The execution of the agreement and the receipt of the amount have not been denied in the rejoinder affidavit.

Shri M.C. Tripathi has raised preliminary objection with regard to right of the Petitioner to be enforced by writ petition. He submits that after acquisition of the land of which possession has been taken and award has been declared, the Petitioners are not left with any right or title to question the validity of acquisition on the ground of its user. This writ petition has not been filed in public interest litigation but by way of exercising individual rights over the land, which have ceased in favour of the Petitioner in the year 1988. The Petitioners have approached this Court after 20 years apparently to blackmail the allottees of the land. The objection of the writ petition is not to enforce any right but to grab some more money from the State, Noida Authorities and the allottees of the land. The Petitioner did not raise any objection to the development of the land by Noida or the land use. The land can be used for housing as an integral part of industrial development.

In para 9 of the counter affidavit of Shri S.K. Allen, Assistant Law Officer, NOIDA Administrative Office, Sector- 6, Noida, Gautam Budh Nagar filed on behalf of NOIDA, it is stated as follows:

That the acquired land of said acquisition was utilized for Planned Industrial Development and for the public purpose. The acquired land falls under Sector 117, 119 and 122. The construction work of sewer treatment plan is under progress in Sector 123, which is also the land of Village Parthala Khanjarpur. The Sector 123 situates towards east of Sector 119 and Sector 122 just across the road. The land which was acquired by the said notification is being utilized nor only for group housing it is also being utilized for infrastructure like roads, green belts, schools, institutions, and huge parks etc. under plan industrial development. It is further stated that a residential scheme was also launched for weaker section named as Sharamik Kunj Yojna. The Shramik Kunj Yojna was in Sector 122 and Sector 93. Hence, the land was being utilized for public purpose. The public purpose has been defined u/s 3(f) of Land Acquisition Act. The photocopy of the brochure of Sharamik Kunj Yojna and photographs of Sharamik Kunj situated at Sector 122 are being filed herewith and marked as Annexure No. CA-4 and CA-5 to the counter affidavit.

Relying upon averments made in paras 9, 12 and 13 of the counter affidavit filed on behalf of Noida it is submitted by Shri M.C. Tripathi for the State of U.P. and also by Shri Ramendra Pratap Singh for NOIDA that the filing of the petition is not to make to the notice of the Court any fraud played upon the Petitioner but to blackmail the NOIDA Authorities and the allottees from making constructions.

In Banda Development Authority, Banda v. Moti Lal Agarwal and Ors. Civil Appeal No. 3604 of 2011 decided on 26.4.2011 the Supreme Court allowed the appeal against the judgment of the High Court interfering in land acquisition proceedings challenging notifications dated 8.9.1998 and 7.9.1999 in the year 2008. The writ petition was filed on 24.3.2008 challenging the notification on the ground that the proceedings have lapsed u/s 11-A of the Land Acquisition Act as award was not declared within 2 years. The Supreme Court held that though objections for delay and latches was not raised in the affidavit filed on behalf of the State Government and Noida Development Authority, the High Court was duty bound to take cognizance of the long gap of 9 years between issue of declaration u/s 6(1) and to decline relief on the ground of latches. The Supreme Court relied upon judgment of Sawaran Lata etc. Vs. State of Haryana and Others, in which dismissal of the writ petition filed after 7 years of the publication of declaration and 5 years of the award passed by the Collector was upheld with the following observations:

In the instant case, it is not the case of the Petitioners that they had not been aware of the acquisition proceedings as the only ground taken in the writ petition has been that substance of the notification u/s 4 and declaration u/s 6 of the 1894 Act had been published in the newspapers having no wide circulation. Even if the submission made by the Petitioners is accepted, it cannot be presumed that they could not be aware of the acquisition proceedings for the reason that a very huge chunk of land belonging to a large number of tenure-holders had been notified for acquisition. Therefore, it should have been the talk of the town. Thus, it cannot be presumed that the Petitioners could not have knowledge of the acquisition proceedings.

In C. Padma and Others Vs. Dy. Secretary to the Govt. of T.N. and Others, the Supreme Court held that when the acquired land is vested in the State and compensation has been paid to the claimant, the claimants are not entitled to restitution of the possession on the ground that either the original public purpose has ceased to be in operation or that land could not be used for any other purpose.

In Swaika Properties Pvt. Ltd. and Another Vs. State of Rajasthan and Others, the Supreme Court held that the High Court rightly dismissed the writ petition challenging declaration u/s 6 of the Land Acquisition Act dated 8.2.1984 and in which possession was taken on the ground of latches. In para 16 to 19 the Supreme Court held as follows:

This Court has repeatedly held that a writ petition challenging the notification for acquisition of land, if filed after the possession having been taken, is not maintainable. In the case of Municipal Corporation of Greater Bombay Vs. The Industrial Development Investment Co. Pvt Ltd., and others, where K. Ramaswamy, J. speaking for a Bench consisting of His Lordship and S.B. Majmudar, J. held:

It is thus well-settled law that when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the Court should be loath to quash the notifications. The High Court has, no doubt, discretionary powers under Article 226 of the Constitution to quash the notification u/s 4(1) and declaration u/s 6. But it should be exercised taking all relevant factors into pragmatic consideration. When the award was passed and possession was taken, the Court should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226. The fact that no third party rights were created in the case is hardly a ground for interference. The Division Bench of the High Court was not right in interfering with the discretion exercised by the learned Single Judge dismissing the writ petition on the ground of laches.

In the concurring judgment, S.B. Majmudar, J. held as under:

Such a belated writ petition, therefore, was rightly rejected by the learned Single Judge on the ground of gross delay and laches. The Respondent-writ Petitioners can be said to have waived their objections to the acquisition on the ground of extinction of public purpose by their own inaction, lethargy and indolent conduct. The Division Bench of the High Court had taken the view that because of their inaction no vested rights of third parties are created. That finding is obviously incorrect for the simple reason that because of the indolent conduct of the writ Petitioners land got acquired, award was passed, compensation was handed over to various claimants including the landlord. Reference applications came to be filed for larger compensation by claimants including writ Petitioners themselves. The acquired land got vested in the State Government and the Municipal Corporation free from all encumbrances as enjoined by Section 16 of the Land Acquisition Act. Thus right to get more compensation got vested in diverse claimants by passing of the award, as well as vested right was created in favour of the Bombay Municipal Corporation by virtue of the vesting of the land in the State Government for being handed over to the Corporation. All these events could not be wished away by observing that no third party rights were created by them. The writ petition came to be filed after all these events had taken place. Such a writ petition was clearly stillborn due to gross delay and laches.

Similarly, in the case of State of Rajasthan and Others Vs. D.R. Laxmi and Others, following the decision of this Court in the case of Municipal Corporation of Greater Bombay (supra) it was held:

When the award was passed and possession was taken, the Court should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226. The fact that no third party rights were created in the case, is hardly a ground for interference. The Division Bench of the High Court was not right in interfering with the discretion exercised by the learned Single Judge dismissing the writ petition on the ground of laches.

To the similar effect is the judgment of this Court in the case of The Municipal Council, Ahmednagar and Another Vs. Shah Hyder Beig and Others, this Court, following the decision of this Court in the case of C. Padma and Others Vs. Dy. Secretary to the Govt. of T.N. and Others, held:

In any event, after the award is passed no writ petition can be filed challenging the acquisition notice or against any proceeding thereunder. This has been the consistent view taken by this Court and in one of the recent cases C. Padma v. Dy. Secy. to the Govt. of T.N.

In the present case also, the writ petition having been filed after taking over the possession and the award having become final, the same deserves to be dismissed on the ground of delay and laches. Accordingly, the order of the learned Single Judge and that of the Division Bench are affirmed to the extent of dismissal of the writ petition and the special appeal without going into the merits thereof. This appeal also deserves to be dismissed without going into the merits of the case and is dismissed as such. No costs.

In Smt. Sulochana Chandrakant Galande Vs. Pune Municipal Transport and Others, the Supreme Court held in para 16 to 22 as follows:

Thus, "free from encumbrances" means vesting of land in the State without any charge or burden in it. Thus, State has absolute title/ownership over it.

In Satendra Prasad Jain and Others Vs. State of U.P. and Others, this Court held that once land vests in the State free from all encumbrances, it cannot be divested. The same view has been reiterated in Awadh Bihari Yadav and Others Vs. State of Bihar and Others, U.P. Jal Nigam, Lucknow through its Chairman and another Vs. M/s. Kalra Properties (P) Ltd. Lucknow and others, Chandragauda Ramgonda Patil and Another Vs. State of Maharashtra and Others, Allahabad Development Authority Vs. Nasiruzzaman and Others, State of Kerala and others Vs. M. Bhaskaran Pillai and another, M. Ramalinga Thevar Vs. State of Tamil Nadu and Others, The Printers (Mysore) Ltd. Vs. M.A. Rasheed and Others, Bangalore Development Authority and Others Vs. R. Hanumaiah and Others, and Govt. of A.P. and Another Vs. Syed Akbar,

So far as the change of user is concerned, it is a settled legal proposition that once land vests in the State free from all encumbrances, there cannot be any rider on the power of the State Government to change user of the land in the manner it chooses.

In a similar situation, in Gulam Mustafa and Others Vs. The State of Maharashtra and Others, this Court held as under:

Once the original acquisition is valid and title has vested in the Municipality, how it uses the excess land is no concern of the original owner and cannot be the basis for invalidating the acquisition. There is no principle of law by which a valid compulsory acquisition stands voided because long later the requiring Authority diverts it to a public purpose other than the one stated in the. declaration.

Re-iterating a similar view in C. Padma and Others Vs. Dy. Secretary to the Govt. of T.N. and Others, this Court held that if by virtue of a valid acquisition of land, land stands vested in the State, thereafter, claimants are not entitled to restoration of possession on the grounds that either the original public purpose is ceased to be in operation or the land could not be used for any other purposes.

In Bhagat Singh Vs. State of U.P. and Others, Niladri Narayan Chandradhurja (d) by L.Rs. Vs. State of West Bengal, and Northern Indian Glass Industries Vs. Jaswant Singh and Others, this Court held that, the land user can be changed by the Statutory Authority after the land vests in the State free from all encumbrances.

In view of the above, the law can be summarised that once the land is acquired, it vests in the State free from all encumbrances. It is not the concern of the land owner how his land is used and whether the land is being used for the purpose for which it was acquired or for any other purpose. He becomes persona non grata once the land vests in the State. He has a right to get compensation only for the same. The person interested cannot claim the right of restoration of land on any ground, whatsoever.

On the aforesaid discussion we find that the prayers to quash the notifications in the writ petition is not only grossly barred by latches, the Petitioners do not have any right left in the land, after the notification u/s 6 was issued, possession was taken over and compensation was determined and paid to challenge the acquisition of the land. The pendency of the reference for enhancement of compensation has no material effect on the validity of acquisition of land.

We further find that in the present case the land use has not been changed. Housing is a part of planned industrial development, and that allotment of plots for housing project 15 years after the land was acquired, cannot be a ground on which acquisition can be questioned. There are no allegations of malafides or fraud in the pleading.

We further decline to interfere on the ground that the Petitioners apparently not in possession of the land, have illegally caused obstruction to the utilisation of the land by the allottees. The agreement with the Respondent No. 6 under which the Petitioners have accepted the money is by way of extortion in return, not to cause any disturbance. The Petitioner has no right left to make any claim from any person in respect of land. The payment of more than Rs. 16 lacs by Respondent No. 6, to the Petitioner under an agreement is an illegal payment by way of ransom for not interfering in the possession. It is a criminal offence, for which the Petitioner should be punished in accordance with law. This writ petition apparently appears to have been filed by way of threat and to exercise leverage to extract money from Respondent Nos. 5 and 6, when the constructions were in progress.

We leave it open to the State authorities, NOIDA and the Respondent No. 6 to initiate criminal action against the Petitioner for blackmailing and extortion and realising money by an agreement for not interfering in the possession of the land, which was acquired more than 20 years ago and for which Petitioner has also received compensation.

The writ petition is dismissed.