Mahesh Chandra Banerji vs U.P.Avas Evam Vikas Parishad & Ors

2. One, Udai Chandra Banerji had two sons, namely, Suresh Chandra Banerji and Ramesh Chandra Banerji. On 1st February, 1927, the two brothers jointly purchased 8848 square yards of land in Khasra Plot No.2305 situated in Kasba Koli. The said khasra number was subsequently converted into Plot No.1002. Although, the purchase was said to have been made jointly by Suresh Chandra Banerji and Ramesh Chandra Banerji, the Sale Deed was executed in the name of Ramesh Chandra Banerji, who was the elder brother. From the Sale Deed, it would be evident that a Kothi (building) was in existence over a part of the said land and the land adjacent to the building was lying vacant. Certain additional constructions were raised on the vacant portions which were completed in the year 1930. The said property fell within the municipal limits of Aligarh. On 1st April, 1957, house tax was imposed for the first time and the name of Suresh 3 Chandra Banerji was recorded in the assessment list of the house tax payers in the records of the Municipal Board. In 1930, Ramesh Chandra Banerji and Dr. Suresh Chandra Banerji shifted into the Kothi with their families and continued to reside therein. In 1941, Ramesh Chandra Banerji expired and after his death, a family settlement is said to have taken place between Ramesh Chandra Banerji's heirs and Dr. Suresh Chandra Banerji, as a result whereof the family of Ramesh Chandra Banerji shifted to Kanpur and Dr. Suresh Chandra Banerji became the exclusive owner of the Kothi in question and he resided therein along with his family members till his death on 16th August, 1989. At the time of his death Dr. Suresh Chandra Banerji left behind him surviving his sons, Paresh Chandra Banerji, Dinesh Chandra Banerji, Bhavesh Chandra Banerji and Umesh Chandra Banerji, who died in August, 1997.

3. Mahesh Chandra Banerji, one of the sons of late Dr. Suresh Chandra Banerji, claims to have acquired knowledge that a Development Scheme known as Yojana No.7 had been taken up by the Avas Evam Vikas Parishad in 1968 and that a notification under Section 28 of the Avas Vikas Parishad Adhiniyam, being U.P. Act No.1 of 1968, had been issued on 5th October, 1968 and a further notification under Section 32(i) of the Adhiniyam was issued on 25th January, 1971, which was published in the Gazette on 13th February, 1971. Under the said scheme, along with other lands, the property of late Dr. Suresh Chandra Banerji in Khasra Plot No.1002, was also proposed to be acquired. Objections were filed against the proposed acquisition and in response thereto the Respondent No.1 decided to exclude the residential house of the appellants and the adjoining land from the acquisition. Despite the same, further representations were made by the appellants to allow them full frontal access from 5 G.T. Road to their residential premises, since they wanted to establish a nursing home on the said plot. It appears that a decision was even taken in that regard and Resolution No. 1/130/79 dated 16th January, 1979 was accepted by the Respondent No.1- Parishad and the cost of the said land was fixed at not less than R.82/- per square metre. According to the appellants, since the said resolution/decision was not being given effect to, and, on the other hand, auction notice was issued by the Parishad on 23rd August, 1993 for sale of the acquired lands under the above-mentioned scheme, they were compelled to file Original Suit No.307 of 1998 before the Civil Judge, Senior Division, Aligarh, inter alia, praying for the following reliefs :

4. Initially, an order of injunction was passed in favour of the appellants, which was subsequently vacated on 19th April, 2001. Simultaneously, with the filing of the aforesaid suit, two of the other sons of late Dr. Suresh Chandra Banerji, namely, Shri Dinesh Chandra Banerji and Shri Bhavesh Chandra Banerji, filed Civil Misc. Writ Petition No.18132/98 questioning the acquisition proceedings, but the same was ultimately dismissed on 12th May, 1999, on account of the pendency of the suit relating to the same acquisition. 7

6. After execution of the sale deed in favour of the Respondent No.6, the appellants on 18.7.2001 filed FAFO No.694/2001 against the order by which the interim order passed in the suit had been vacated. The High Court of Allahabad granted stay of the order passed in the suit, but indicated that the right of the Respondent No.6, Shri Gyanendra Prashad Varshney, would not be affected by the stay order. Ultimately, Civil Suit No.307 of 1998 came to be dismissed as withdrawn on 18th November, 2004, on the ground that the same had become infructuous. 8

10. The Writ Petition filed by Sanjai Singh and others came to be disposed of by the Division Bench of the Allahabad High Court on 6th October, 2005, inter alia, with a direction that in the event the writ petitioners deposited the entire outstanding dues, excluding the penal interest, within a period of four weeks from the date of the order, the respondents would hand over the possession of the property in dispute to them within a period of two weeks thereafter. The Respondent No.1-Parishad was 12 also requested to decide the representation of the petitioners with regard to the penal interest by a speaking and reasoned order within six weeks from the date of filing of a certified copy of the order. It was also indicated that in case the petitioners had not filed their representation before the appropriate authority, they could do so within a week from the date of the order before the Housing Commissioner, U.P. Avas Evam Vikas Parishad, Lucknow, and the same would be dealt with in accordance with law.

11. After the said order was passed, Dr. Mahesh Chandra Banerji filed Civil Misc. Recall Application No.81128/2006 praying for recall of the aforesaid judgment and order on the ground that the same had been obtained by concealing material facts and that the order adversely affected the applicant who was not even impleaded as respondent in the writ petition, though, he was a necessary party. 13 The said application was dismissed on 12th December, 2006, on the ground that the process of the court was being misused by denying possession of the lands which had been allotted in favour of the auction purchasers and that attempts were being made to misguide the court in order to hold on to the possession which had already vested in the State under Section 16 of the Land Acquisition Act, 1894. Consequently, by an order of 12th December, 2006, Writ Petition No.43552 of 2004, which had been filed by the petitioners in SLP(C)No.8019 of 2007, was dismissed on the ground that the case was clearly covered by the judgment passed in the Recall Application filed by Mahesh Chandra Banerji in Writ Petition No.54160 of 2005 filed by Sanjai Singh and others.

23. All the above questions can either be decided in a properly instituted suit or by the Collector on a proper inquiry being conducted. We are, therefore, of the view that in order to put a quietus to the dispute, the District Magistrate should conduct a fresh inquiry in order to determine the extent of the lands of the Banerji 28 family which had been included in the acquisition proceedings for the purpose of Yojana No.7 undertaken by the Parishad upon giving the affected parties an opportunity of placing their respective cases.

24. The District Magistrate, Aligarh is, therefore, directed to conduct an enquiry in order to determine the extent of land belonging to the Banerji family which is said to have been acquired for the purposes of the scheme covered by Yojana No.7 undertaken by the Respondent No.1-Parishad and to also determine as to whether the same was included in the 6.17 bighas of land possession whereof had been taken earlier. In the event the lands have not been included within the ambit of the acquisition proceedings, as indicated by the Additional District Magistrate (V.R.), Aligarh, then, in such an event, the compensation for the same is to be assessed and Award is to be made in 29 respect thereof, in accordance with law. On the other hand, if the said lands have been included within the 6.17 bighas in respect of which compensation had already been awarded, the District Magistrate shall, after identification of the lands of the appellants, apportion the compensation payable to them and make an Award accordingly.

25. As indicated hereinbefore, in conducting such an inquiry, the appellants as also the authorities of the Respondent No.1-Parishad should be given proper opportunity of placing their respective cases. Since the acquisition relates back to the year 1968/1971, such investigation and enquiry must, however, be completed within six months from the date of receipt of a copy of this order.

26. The appeals are, accordingly, allowed to the aforesaid extent, but without any order as to 30 costs. All connected applications shall also stand disposed of by this order.

________________J.

(ALTAMAS KABIR) ________________J.

(CYRIAC JOSEPH) New Delhi Dated: 7th July, 2010.