1 Judgment reserved on 1[SECTION].12.2009 Judgment delivered on 25.1.2010 CIVIL MISC. WRIT PETITION NO. 300[SECTION]3 OF 2009 [ENTITY] and others vs. State of UP and others Hon'ble [ENTITY], J.
Hon'ble [ENTITY], J.
The petitioners have challenged the land acquisition proceedings acquiring 128.8[SECTION]2 hectares of land at village Shahpur Goverdhanpur Khadar, Tehsil Sadar, Pargana Dadari District Gautam Budh Nagar by notification issued under [SECTION] of the [ACT], 1894 (in short, 'the Act), dated 27.12.2007, along with opinion of the State Government that the provisions of [SECTION] are applicable to the land and also applying the provisions of [SECTION] for 'Planned Industrial Development' of Gautam Budh Nagar through New Okhla Industrial Development Authority, the notification under [SECTION] of the Act was published on 14.2.2008. The petitioners have also prayed for directions not to dispossess them from their abadi/araji of which they are owners, claiming to be in actual physical possession and not to demolish existing constructions over their land.
It is stated in paragraphs 5 to 7 of the writ petition, that out of area 1.088 hectare of plot No. 508, only 0.472 acre was sought to be acquired by the notification. The remaining area i.e. 0.[SECTION]1[SECTION] hectare was left out of the acquisition proceedings. The petitioners 1 and 2 are owners and in possession of 0.1054 hectare forming part of plot No. 508 total area 1.088 hectare of Khata No. 105, which they have purchased from its bhumidhar Shri [ENTITY] son of late Shri [ENTITY] by registered sale deed dated 29.8.2008. The petitioners no. 3 and 4 claim to be owners and in physical possession of 1.1054 hectare land forming part of plot No. 508 total area 1.088 hectare and plot No. 532 total area 1.9720 hectare, which they have purchased from Shri [ENTITY] son of Shri [ENTITY] by registered sale deed dated 30.8.2008, and their names have been mutated in their khatauni (record of title). In paragraph [SECTION] it is stated that the sale deeds relate to those area of plot Nos. 508 and 532, which were left out and were not included in the notification. The petitioners' land is 0.[SECTION]1[SECTION] hectare of plot No. 508 and 0.215 hectares of plot No. 532, which were left out from the acquisition.
It is stated that initially a proposal of acquisition of 132.59 hectare of land in village Shahpur Goverdhan was sent to the Government through letter dated 11.12.200[SECTION]. The proposal was returned on which a Committee of three officers, namely Additional District Magistrate (Land Acquisition) [ENTITY], Sub Divisional Officer/Additional District Magistrate, Tehsil Dadari and Additional Chief Executive Officer, [ENTITY], made local inspections and submitted a report in which they proposed to release 2.3[SECTION]5 hectare land including 0.[SECTION]1[SECTION] hectares of Khasra No. 508 and 0.215 hectares of plot No.532, and that accordingly these areas of plot Nos. 508 and 532 as well as area of plot No. 505, 50[SECTION] and 507 were left out from the acquisition. In last week of May, 2009, the officers of Jayprakash Associates and the officers of [ENTITY] and land acquisition office came with police force and started forcibly demolishing the constructions (houses) of the petitioners existing on the land purchased by them. The petitioners are running from pillar to post but that no one is prepared to hear them. They have also annexed photographs of demolition. It is alleged that the land purchased by the petitioners was not acquired. The petitioners have also challenged the notification on the ground that there was no urgency much less such unforeseen emergency to acquire the land. The acquisition was wholly uncalled for and in any case notice under [SECTION] of the Act has not been served nor 80% compensation has been paid. The petitioners have explained the delay in filing the writ petition in submitting that since the land was not included in the notification and no notice under [SECTION] was issued, they have filed the petition only after the respondents have taken steps made to demolish their constructions. Shri [ENTITY] appearing for the petitioners submits that this Court may issue a Commission to find out the extent of the constructions of the petitioners, and the demolitions carried out by authorities.
We have heard Shri [ENTITY], Senior Advocate assisted by Shri [ENTITY] for the petitioners. Shri [ENTITY], Chief Standing Counsel appears for the State respondents. Shri [ENTITY] assisted by Shri [ENTITY] appears for New Okhla Industrial Development Authority.
In the counter affidavit of Shri [ENTITY], Special Secretary, Industrial Development, Government of U.P., Lucknow, it is stated that a proposal of acquisition of 134.[SECTION][SECTION]2 hectares of land was submitted by [ENTITY] for planned development, to the Additional District Magistrate (Land Acquisition) District Gautam Budh Nagar on 4.9.200[SECTION]. The Additional District Magistrate made a demand of deposit of 20% of the estimated amount of compensation and the cost of acquisition. The [ENTITY] made available a sum of Rs. 13, 5[SECTION], 23, 438/- vide letter No. 1332 dated 8.11.200[SECTION]. As per joint spot survey the [ENTITY] submitted a modified proposal of 134.420 hectares of the land which did not include temple/samadhi etc. The proposal was submitted to Director, Land Acquisition Directorate, Board of Revenue, U.P. Lucknow by the letter of the District Magistrate dated 7.12.200[SECTION]. The Director sent back the proposal to the District Magistrate with certain objections. Some more objections were received in respect of land acquisition proceedings with regard to the land situate at village Shahpur Goverdhanpur, Khadar on which a Committee was constituted for carrying out survey and that necessary modifications were made. A modified proposal was submitted by the [ENTITY] to the Additional District Magistrate (Land Acquisition) Gautam Budh Nagar on 13.3.2007.
It is stated in paragraph 12 of the counter affidavit, that a high level committee was constituted at the level of Directorate of Land Acquisition. The Committee submitted a report after conducting a survey and that as per recommendations the Additional District Magistrate again submitted a request for acquisition of the land on 2[SECTION].7.2007. The [ENTITY] in its letter dated 25.10.2007 incorporated the recommendations and submitted a modified proposal in respect of the acquisition of an area 128.8[SECTION]2 hectares. The Director, Land Acquisition Directorate, Board of Revenue, U.P. Lucknow by his letter dated 21.11.2007 submitted the proposal for issuing notifications under [SECTION] (4) of the Act. The notification under [SECTION] with [SECTION] of the Act for acquisition of 128.8[SECTION]2 hectares was made on 27.12.2007. The notification was also published in two daily newspapers 'Rashtriya Sahara' and 'Amar Ujala' on 29.12.2007 and a public notice was also published. The [ENTITY] on demand deposited Rs.53, 23, 12, 733/- towards 80% of the estimated compensation and made a request for acquisition of the land vide its letter No. 570 dated 30.1.2008. The notification under [SECTION] with [SECTION] of the Act was published on 14.2.2008. It was also published in daily newspapers 'Rashtriya Sahara' and '[ENTITY]' on 20.2.2008. A public notice/munadi was also carried out and thereafter the notice under [SECTION] of the Act was issued to the tenure holders on 20.2.2008 fixing 7.3.2008 for disposal of objections. By a letter no. 110 dated 4.3.2008 of Officer on Special Duty, the possession was proposed to be taken on 10.3.2008, and that the officials took over possession of the land on 10.3.2008 and on the same day the acquired land was transferred to [ENTITY]. In paragraph-24 of the counter affidavit, it is stated that the payment of compensation amount was made to farmers as per the rates agreed by the farmers under the [ACT]. In Village Sahapur, Govardhanpur Khadar, itself an estimated amount of Rs. 97.[SECTION]8 crore has been distributed to 515 land holders for 102 hectare of land. The petitioners have purchased the land after notifications under [SECTION] and [SECTION] of the Act, and after the possession was taken over on 10.3.2008 after issuing notice under [SECTION] and after depositing 80% of the estimated compensation.
Shri [ENTITY] as well as Shri [ENTITY] have raised preliminary objections to the maintainability of the writ petition by the petitioners, as purchasers of the land after the notification under [SECTION] dated 27.12.2007 and the notification under [SECTION] dated 14.2.2008 and the transfer of possession to [ENTITY] on 10.3.2008. It is denied that the area purchased by the petitioners by sale deeds dated 29.8.2008 and 30.8.2008 was excluded from the acquisition and is specifically stated in paragraph-28 and that the land purchased by the petitioners is part of the area under acquisition. The Khatauni extract in respect of Khasra No. 508 for 1411F-141[SECTION]F shows that Shri [ENTITY], the vendor had himself purchased the land from Shri [ENTITY] son of Shri [ENTITY] resident of Bharhait vide sale deed dated 10.5.2004. Shri [ENTITY] sold his entire shares in Gata No. 508 area 0.1054 hectare. The land is shown in the sale deed as agricultural land and the stamp duty has been paid treating the land as agricultural land. Shri [ENTITY] subsequently executed a gift deed dated 25.3.2009 in respect of his share in Gata No. 504 to Shri [ENTITY]. A writ petition No. 30[SECTION]47 of 2009 filed by Shri [ENTITY] vs. State of UP and others was dismissed on 8.7.2009 on the ground that the subsequent purchaser has no right to challenge the notification.
Almost the same averments have been made in the counter affidavit of Shri [ENTITY], Tehsildar, Land Acquisition, [ENTITY], District Gautam Budh Nagar and the counter affidavit of Shri [ENTITY], Tehsildar, New Okhla Industrial Development Authority, Gautam Budh Nagar.
In the rejoinder affidavit, it is not denied that the sale deeds were executed after the notification under [SECTION] and [SECTION] of the Act were issued and published. It is however reiterated that the portions purchased by the sale deeds were not acquired. The '[ACT]', to which the land has been transferred by the [ENTITY], is at a distance of 3 Kms. The public munadi and the issuance of notices have also been denied.
Shri [ENTITY] has relied upon a judgment of Supreme Court in [ENTITY] AIR 1970 SC 802 in submitting that even subsequent purchaser of the land has a right to challenge the notifications acquiring the land. He has tried to distinguish [ENTITY] vs. Lieutenant Governor of Delhi and others 2008 (9) SCC 177 in which the land was transferred in violation of [ACT] and submits that in that context the Supreme Court had stated that the subsequent purchaser, without seeking permission of the competent authority to purchase the land, has no right to challenge the acquisition of the land.
In the notifications under [SECTION] with [SECTION] dated 27.12.2007 and the notification under [SECTION] with [SECTION] of the Act dated 14.2.2008, as well as the authority letter of which the possession was handed over by the State Government to [ENTITY] the area of 0.472 hectare of plot No. 508M and 1.757 hectare of plot No. 532M were included in the entire area of 128.427 hectare. In the sale deed in favour of the petitioner nos. 1 and 2 [ENTITY] and [ENTITY] dated 29.8.2008, the land is described as the entire one-third share of Gata No.105 Khet No. 508 area 0.31[SECTION]4 hectare out of total area 1.088 hectare, which comes to 0.1054 hectare. In the sale deeds in favour of Smt. [ENTITY] and Smt. [ENTITY] dated 30.8.2008 the area as described as 1/9 share of 0.340 hectare is 0.0518 hectare i.e. vacant residential plot 518.38 square meters of Gata No. 00105 Khet No. 508 and Khata No. 00048 Khet No.
532. In [PRECEDENT]; Yadu Nandan Garg vs. State of Rajasthan and others 199[SECTION] SCC 334; U.P. Jal Nigam Lucknow vs. Kalra Properties (P) Ltd 199[SECTION] (3) SCC 124; Sneh Prabha (Smt.) & others vs. State of UP and another 199[SECTION] (7) SCC 42[SECTION]; Star Wire (India) Ltd. vs. State of Haryana & others 199[SECTION] (11) SCC [SECTION]98, and [ENTITY] vs. Lieutenant Governor of Delhi and others 2008 (9) SCC 177 the Supreme Court held that it is by now well settled that under the [ACT] the subsequent purchaser cannot challenge the acquisition proceedings and that he would be only entitled to get the compensation. In para 17 in [ENTITY] (supra it was observed as follows:-
"17. When a piece of land is sought to be acquired, a notification under [SECTION] of the [ACT] is required to be issued by the State Government strictly in accordance with law. The said notification is also required to be followed by a declaration to be made under [SECTION] of the [ACT] and with the issuance of such a notification the encumbrance created by the owner, or any transfer made after the issuance of such a notification would be deemed to be void and would not be binding on the Government. A number of decisions of this Court have recognised the aforesaid proposition of law wherein it was held that subsequent purchaser cannot challenge acquisition proceedings and also the validity of the notification or the irregularity in taking possession of the land after the declaration under [SECTION] of the Act."
In Delhi large areas were acquired by the State Government for planned development of the city. The unscrupulous property dealers however continued to transfer the properties at will and created complicated situation for innocent persons. The Central Government therefore conscious of the situation, imposed restrictions to curb large scale transactions and enacted special legislation called '[ACT], to prohibit transfers by way of sale, mortgage, gift, lease or otherwise of any land which was subject matter of acquisition or in respect to which acquisition proceedings were initiated or proposed to be initiated. The Act was an initiative by the legislation to stop such transactions, which were otherwise valid for the purposes of claiming compensation. The judgment in [ENTITY] (supra) thus is not distinguishable on the ground that the Supreme Court in the judgment was concerned only with the operation of the [ACT]. The Supreme Court clearly and unequivocally held that the purchaser of the land subsequent to the notification under [SECTION] of the Act, is not permitted to challenge land acquisition proceedings.
This Court has also followed the same principle of law in [PRECEDENT] and Sri Sidhas Pith Vaisno Mata Mandir Shivdham vs. State of UP and others Civil Misc. Writ Petition no. 30[SECTION]47 of 2009.
In [ENTITY] (supra), the purchasers of land in the years 19[SECTION]0 and 19[SECTION]1, were allowed to challenge notification dated June 2[SECTION], 1959, under [SECTION] of the Act, on the ground that the land not adequately described. The portion of the plot No. 2030, measuring 15 Bighha 5 Biswa, was acquired, whereas 11 persons including petitioner were shown as owners of different pieces of land acquired for constructions of Mall Road. The land was vaguely described in both the notifications under [SECTION] and [SECTION] of the Act. In this case there is no such challenge to the notifications.
In this case on the dates of sale deeds executed in favour of the petitioners the land stood acquired by notifications under [SECTION] and [SECTION] and the possession had also been taken. The petitioners allege to have purchased the land free from acquisition. It was necessary both for vendor and the petitioners to mention the fact in the sale deed. The areas of the land described in the sale deeds do not show that the they are part of the plots, which were not acquired, or that there were any constructions existing on the demised land. The sale deeds do not mention of any such constructions. The land was transferred as agricultural land and the stamp duty was calculated and paid on the valuation made on the basis of agricultural land. The petitioners did not apply for permission nor any such permission could be given by [ENTITY] under the Industrial Area Development Act, 197[SECTION] to the petitioners for raising constructions. The photographs annexed to the writ petition also do not show that there were any houses or residential structures which were demolished by the authorities.
Shri [ENTITY] has not made out any case nor has placed before us any material to doubt whether the land purchased by the petitioners was free from acquisition and that there were any constructions standing on the land which have been partly demolished. We therefore do not find any good ground to issue a Commission for spot inspections.
No other point was pressed.
The writ petition is dismissed.
Dt.25.1.2010 RKP