High Court
Case Details
Court No. - 39 Case :- WRIT - C No. - 12065 of 2020 Petitioner :- Harwinder And 3 Others Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Akhilesh Tripathi,Satyendra Narayan Singh Counsel for Respondent :- C.S.C.,Vivek Saran AND Case :- WRIT - C No. - 33649 of 2022 Petitioner :- Miglani Construction Private Limited Respondent :- State Of U P And Another Counsel for Petitioner :- Shivam Yadav,Akshay Mohiley Counsel for Respondent :- CSC,Nipun Singh Hon'ble Mrs. Sunita Agarwal,J. Hon'ble Vipin Chandra Dixit,J. The record of the Writ-C No.12065 of 2020 has been summoned vide order dated 18.1.2023 passed in Writ-C No.33649 of 2022. The names of the counsel for the parties have been shown in the cause list. Sri Vivek Saran, Advocate has put in appearance on behalf of U.P. Awas Vikas Parishad. W.P.-C No.12065 of 2020:- No one appears for the petitioners (four in numbers) in Writ-C No.12065 of 2020. The prayers in the said writ petition are as follows:- "(a) issue writ, order or direction in the nature of mandamus commanding the Respondent Authorities, particularly Respondent No.6, Additional District Magistrate (Land Acquisition)/SLAO, Ghaziabad to decide the representation dated 17.09.2019 moved by the petitioners. (b) issue writ, order or direction in the nature of mandamus declaring the notification dated 26.02.1982 under Section 4(1) of the Land Acquisition Act and Notification dated 28.02.1987 under Section 6(1) of the Land Acquisition Act and consequential Award dated 27.02.1989 as lapsed in view of Section 24(2) of the Act No.30 of 2013." The dispute in the aforesaid writ petition is with regard to acquisition notifications dated 26.2.1982 and 28.02.1987 published under Sections 4 and 6 of the Land Acquisition Act, 1894; respectively. The petitioners claim that disputed land is plot no.368/1 of Village Prahladgarhi, Pargana Loni, Tehsil and District Ghaziabad which was originally owned by the father of the petitioners herein, namely, Swarn Singh. In the counter affidavit filed on behalf of U.P. Awas Vikas Parishad, it is categorically stated that the writ petition relates to Khasra No.368/1, Village Prahladgarhi, Ghaziabad which was in the name of erstwhile owner Late Swarn Singh. The total area of which, namely, 2-8-0 bigha had been proposed for acquisition but out of the total, an area of 2-1-6 bighas had been acquired and the remaining area 0-2-18 bighas was out of the acquisition. The notifications dated 28.2.1982 and 27.2.1989 were issued under Sections 28 and 32 of U.P. Avas Evam Vikas Parishad Adhiniyam, 1965; respectively.
Legal Reasoning
The acquisition notifications were challenged in Writ Petition No.17057 of 1985 by predecessor-in-interest of the petitioners herein, namely, Late Swarn Singh. The said writ petition was dismissed vide judgment and order dated 8.9.1988. It is further stated that the physical possession of the acquired land in Khasra No.368/1 was taken on 8.8.1986. The possession memo is appended as Annexure C.A.-'1'. However, on account of some unauthorized constructions existed on the spot, the demolition exercise had been conducted on 30.12.2004. The petitioner
Legal Reasoning
no.3, namely, Smt. Gurdev, wife of late Swarn Singh the original tenure holder, had filed Land Acquisition Reference Case No.64 of 2000 being aggrieved by the quantum of compensation. Out of the acquired land, commercial plot no.16/Com-3 had been carved out and was put to auction and allotted to one Miglani Constructions Pvt. Ltd. vide allotment letter dated 11.1.2008. It is stated that the petitioners therein were well aware of the allotment but they did not implead the allottee as party in the present writ petition. The second Writ Petition No.71083 of 2005 was filed by the petitioner no.2,
Decision
namely, Harjinder son of late Swarn Singh, which was disposed of vide judgment and order dated 18.11.2005, wherein a direction was given to decide the representation dated 16.2.2005 filed by the petitioners therein and till disposal of representation for a period of four months, status quo was directed to be maintained by the parties. By order dated 13.3.2006, the representation filed by the petitioner no.2 herein had been rejected. A Writ Petition No.65428 of 2006 was filed by the petitioner no.2 herein, challenging the said order. The said writ petition was disposed of vide judgment and order dated 20.1.2012, wherein the matter was relegated to the Housing Board to consider the claim of the petitioner for exemption of plot no.368/1 from the housing scheme. The Principal Secretary/Secretary to the Government of Uttar Pradesh in the Housing and Urban Planning Department was directed to take appropriate steps so that the Board may consider the claim of the petitioner for exemption of land as submitted by letter dated 16.2.2005. The entire exercise was directed to be completed within a period of four months. With regard to auction of the plot in question and other plots in favour of respondent no.5 therein, namely, Miglani Constructions Pvt. Ltd. it was directed that the protection granted by the Apex Court vide its order dated 9.11.2009 shall continue till the decision is taken by the Board and the said auction shall be abide by the decision of the Board so taken. A perusal of the judgment and order dated 9.11.2009 passed by the Apex Court in Special Leave to Appeal (Civil) No.24761 of 2007, arising out of judgment and order dated 12.12.2007 in Writ Petition No.61270 of 2007, indicates that the Apex Court has directed that till the hearing and final disposal of the Writ Petition No.65428 of 2006 pending before this Court, the proceedings concerning sale confirmation in the matter shall be kept in abeyance. It has to be brought on record that a communication vide letter dated 4.9.2012 of the Housing Commissioner has been sent to the petitioner to indicate that the Board in its 220th meeting dated 3.8.2012 at item no.220/9 had rejected the claim of the petitioner for release of the land in question. The decision was, thus, taken in compliance of the order dated 20.1.2012 passed by the Board. The order passed by the Housing Board has been subject matter of challenge in Writ-C No.48603 of 2012 which has been dismissed vide judgment and order dated 31.8.2016 noticing that the acquisition proceedings had been initiated in the year 1981. The predecessor-in-interest of the petitioners had challenged the proceedings and had lost in the year 1988. The award was made in the year 1989 against which a reference application was filed. There was no reason to interfere in the decision of the Housing Board refusing to accept the prayer of the petitioner for release of the land in question. The above order passed by this Court has further been challenged before the Apex Court in Special Leave to Appeal (C) No.33361 of 2016, which was dismissed vide judgment and order dated 22.1.2019 passed by the Apex Court. Having lost in the repeated litigations initiated by the original tenure holder and his heir, namely, the petitioner no.2 herein before this Court as also the Apex Court, the present writ petition has been filed, the reliefs of which have been noted above. The plea in the present writ petition is that since the award with reference to the acquisition in question was declared on 27.2.1989, and possession of the land in question has never been taken, the acquisition proceedings stood lapsed in view of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as 'Act, 2013'). The complete facts with regard to several litigations initiated by the original tenure holder and his successor, namely, petitioner no.2 have not been disclosed in the writ petition. In para '21' of the writ petition, there is a reference of only one writ petition, namely, Writ Petition No.48603 of 2012 which was dismissed vide judgment and order dated 31.8.2016 and SLP (C) No.33361 of 2016 which was dismissed vide order dated 22.1.2019 passed by the Apex Court. It is sought to be submitted in the present writ petition that the status quo order remained operative from 12.4.2016 to 22.1.2019 and in the meantime the Act No.30 of 2013 came into force on 1.1.2014. It is, thus, sought to be submitted that as the physical possession of the land in question has never been taken and the award was declared though due to much delay, the entire proceedings stood lapsed in view of Section 24(2) of the Act, 2013. We find inherent fallacy in the contention of the petitioners in the writ petition, one of whom was petitioner in the previous round of litigation. We may further note that no rejoinder affidavit to the counter affidavit has been filed though a copy of which was served upon the learned counsel for the petitioners on 3.2.2021. From the above noted facts, it is more than evident that the challenge to the acquisition proceedings raised by the original tenure holder was rejected vide judgment and order dated 8.9.1988. The award was declared on 27.2.1989 and the possession of the land in question has been taken on 8.8.1989. With the preparation of the possession memo, the physical possession of the land in question has been handed over to U.P. Awas Vikas Parishad. The acquisition proceedings, thus, concluded in the year 1989 with the handing over the possession of the land in question in favour of the acquiring body and declaration of the award on 27.2.1989. After that, it was not open to the petitioners to challenge the acquisition proceedings, who are successors. however, in second and third round of litigations they have succeeded in getting an order to consider their claim for exemption of land of the acquired land and allotment made in favour of Miglani Constructions Pvt. Ltd., has been stayed till the decision is taken by the Housing Board. In any case, the Housing Board has refused to exempt the land in its 220th Board meeting dated 3.8.2012. After this entire exercise, the claim of the petitioner that the land in question acquisition has been lapsed in view of Section 24(2) of the Act, 2013 is wholly misconceived. Even otherwise, the Apex Court in the case of Indore Development Authority vs. Manohar Lal 2020 (8) SCC 129, has held that Section 24(2) of the Act, 2013 is not attracted in a case where the acquisition proceedings under the Land Acquisition Act, 1894 has been concluded. Sri Vivek Saran, learned counsel appearing for the U.P. Awas Vikas Parishad has further relied on the decision of this Court in Jagbeer Singh and others Vs. State of U.P. and others, 2017(9) ADJ 350, in which it has been held that the provisions of Section 24(2) of the Act, 2013 would not be applicable to the acquisition made under the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965. In the instant case, the acquisition proceedings have been brought to their logical end in the year 1989 itself. The prayers in the present writ petition are, therefore, misconceived. The writ petition no.12065 of 2020 is, accordingly dismissed. W.P.-C No.33649 of 2022:- We have further required to note that the Writ Petition No.33649 of 2022 has been filed by the allottee, namely, Miglani Constructions Pvt. Ltd. with the reliefs as follows:- "(a) Issue a writ, order or direction, in the nature of Mandamus commanding and directing the respondent No.2 to provide the possession of plot No.368/01, Village-Prahlad Garhi, Tehsil & Pargana-Loni, District-Ghaziabad, purchased under auction Vasundhara Scheme No.16/COM-3. (b) Issue, any other writ, order or direction, in favour of the petitioner, as this Hon'ble Court deems fit and proper in the present facts and circumstances of the case, so as to secure the ends of justice or else, the petitioner shall suffer irreparably." It is stated in the writ petition that after dismissal of the SLP filed by the tenure holders, namely, the petitioners in the connected writ petition vide judgment and order dated 22.1.2019 as noted above, the petitioner herein, namely, Miglani Constructions Pvt. Ltd. had filed several representations before the U.P. Awas Vikas Parishad, namely, the respondent no.2 herein to hand over the physical possession of the allotted land by completion of all necessary formalities to the allottee- petitioner. It seems that communication dated 18.9.2021 by the Executive Engineer, U.P. Awas Evam Vikas Parishad, Nirman Khand Ghaziabad-02 has been served upon the petitioner replying his letter dated 16.9.2021, stating therein that due to pendency of the Writ Petition No.12065 of 2020 filed by Harwinder and others against the U.P. Awas Evam Vikas Parishad, the proceedings for allotment pursuant to the auction dated 15.12.2007 under Vasundhara Scheme No.16/Com-3 would be taken only after the final decision in the aforesaid writ petition. Sri Sumit Suri, Advocate holding brief of Sri Nipun Singh, Advocate has put in appearance on behalf of the respondent no.2 U.P. Awas Vikas Parishad. On a query made by the Court, it is submitted by the learned counsel appearing for the U.P. Awas Vikas Parishad that the petitioner herein who is allottee, namely, Miglani Constructions Pvt. Ltd. has not paid the allotment money which must be more than 26 crores rupees and, as such, the transfer of allotted land is not possible. Be that as it may having noted above, there is no order of cancellation of allotment to the petitioner, namely, Miglani Constructions Pvt. Ltd. as on date. For the aforesaid reasons, without entering into the merits of the claim of the petitioner allottee, namely, Miglani Constructions Pvt. Ltd., we relegate the matter in Writ Petition No.33649 of 2022 for fresh consideration by Housing Commissioner, U.P. Awas Evam Vikas Parishad to take a final decision in the matter of allotment of plot in auction held on 15.12.2007 under Vasundhara Scheme No.16/Com-3 in favour of Miglani Constructions Pvt. Ltd. It is directed that a reasoned and speaking order shall be passed, preferably within a period of four weeks from the date of receipt of the certified copy of this order under due intimation to the allottee. The writ petition no.33649 of 2022 is disposed of, accordingly. Order Date :- 6.2.2023 Kpy Digitally signed by :- KAVLESHWAR PRASAD YADAV High Court of Judicature at Allahabad