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Raj Pal & Others v/s State of U.P. & Others


Company & Directors' Information:- RAJ CORPORATION LIMITED [Active] CIN = U74900UP2008PLC035742

Company & Directors' Information:- RAJ COMPANY PRIVATE LIMITED [Active] CIN = U74999PB1949PTC000515

Company & Directors' Information:- G RAJ & COMPANY PVT LTD [Active] CIN = U67120WB1993PTC058140

Company & Directors' Information:- R M RAJ AND CO PRIVATE LIMITED [Strike Off] CIN = U99999DL1952PTC002146

Company & Directors' Information:- S PAL & CO PVT LTD [Active] CIN = U51909WB1983PTC036891

Company & Directors' Information:- RAJ & RAJ PVT. LTD. [Active] CIN = U51109WB1991PTC052055

    Writ - C No. 32480 of 2016

    Decided On, 14 December 2020

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE ANJANI KUMAR MISHRA & THE HONOURABLE MR. JUSTICE PRAKASH PADIA

    For the Petitioner: Shiv Kant Mishra, Advocate. For the Respondent: C.S.C., Anjali Upadhya, Advocate.



Judgment Text

1. Heard learned counsel for the parties.2. The petitioners have preferred the present writ petition inter-alia with the prayers:-"i. Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 02.05.2016 passed by Chief Executive Officer, Greator NOIDA Industrial Development Authority.ii. Issue a writ, order or direction in the nature of Mandamus commanding the respondents to pay additional compensation 64.70% and 10% developed land to the petitioners in terms of (Vinod Kumar and others Vs. State of U.P. and others) on dated 28.04.2014 which has been passed in turms of judgement and order dated 21.10.2011 passed by Full Bench of this Hon'ble Court in the case of Gajraj and others Vs. State of U.P. and others."3. Facts in brief as contained in the writ petition are that the petitioners were co-owners with transferable rights of Khata No.292 Khasra No.1606, Khasra No.1607, Khasra No.1608, Khasra No.1611, Khata No.251 Khasra No.1669, Khasra No.1670, Khasra No.1671, Khasra No.1676, Khasra No.1678 and Khasra No.1679 situated in Revenue Village Kasana, Pargana Dankaur, Tehsil Sadar District Gautam Budh Nagar.4. A notification under Sub-Section 1 of Section 4 read with Sub Sections 1 and 4 of Section 17 of the Land Acquisition Act, 1894 (hereinafter referred to as "the Act, 1894") had been published by the State Government on 05.10.2002 for planned industrial development through Greater NOIDA. It was also mentioned in the notification that since there was urgency, therefore, the enquiry under Section 5A of the Act, 1894 had been dispensed with and the provisions of Sub Section (4) of Section 17 of the Act were applied. The aforesaid notification was also followed by issuing a fresh notification of declaration under Section 6 of the Act, 1894 by the State Government through Greater NOIDA dated 30.10.2002 whereby it has been provided that though no award under Section 11 has been made. However, on the expiry of 15 days from the date of publication of the notice mentioned in Sub Section (1) of Section 9, possession of the land was taken. It is stated in paragraph 7 of the writ petition that in respect of village in question namely Kasana, land has been transferred to the Private Builders for construction of Multi stories Buildings though the said land was acquired for the planned industrial development.5. Learned counsel for the petitioner contends that the petitioners' land were acquired and that the petitioners have received compensation through 'Karar Niyamavali, 1997'. Contention of learned counsel for the petitioners is that his case is squarely covered by the decision rendered in the case of Gajraj Singh and Others Vs. State of U.P. and Others; 2011 (11) ADJ 1 and placing reliance on the said judgement, the petitioners have set up a claim for 64.7% as additional compensation as well as 10% additional Abadi land as per the law laid down by the full Bench in the decision of Gajraj Singh (Supra).6. Since the petitioners were not a party before this Court in the Full Bench, the petitioners also preferred the writ petition before this Court being Writ C No.9577 of 2016 (Ramesh and 17 others Vs. State of U.P. and others). The aforesaid writ petition was finally decided by a Division Bench of this Court vide its judgement and order dated 01.03.2016. The operative portion of the aforesaid order passed is reproduced below:-"It is for the petitioners to approach the authority concerned in accordance with the directions contained in the aforesaid judgement. In case, such a representation is filed, the same shall be considered and decided strictly in accordance with law expeditiously."7. Pursuant to the aforesaid order passed by this Court, a decision has been taken by the Chief Executive Officer Greater NOIDA Industrial Development Authority/respondent No.4 on 02.05.2016. By the aforesaid order, claim set up by the petitioners was rejected. The aforesaid order is under challenge in this writ petition.8. It is argued by learned counsel for the petitioner that the petitioners are entitled for payment of additional compensation to the extent of 64.70% as well as 10% developed land in terms of the judgement passed by this Court in the case of Vinod and others Vs. State of U.P. and others (Writ C No.72630 of 2011) decided on 28.04.2014.9. A counter affidavit has been filed Sri Ramendra Pratap Singh on behalf of respondent No.4. A preliminary objection has been raised in the counter affidavit that the controversy as sought to be raised in the present writ petition has already been concluded and decided by a judgement of this Court dated 03.08.2016 rendered in the case of Vishambhar Dayal Vs. State of U.P. And 3 Ors. in Writ C No. 18243 of 2016 along with two other connected writ petitions.10. Heard learned counsel for the parties and perused the record.11. From perusal of the impugned order dated 02.05.2016, by means of which the representation filed by the petitioners in compliance of the order passed in earlier writ petition filed by him has been rejected, shows that the Competent Authority has rejected the representation of the petitioners by means a very elaborate and speaking order. The relevant extract of the said order is being reproduced herein below:“LANGUAGE”12. Thus, it is apparent that the representation has been rightly rejected by the Competent Authority. Moreover, another important aspect of the matter is that the petitioners are relying upon a judgement passed in the case of Vinod and others (supra) which was decided on 28.04.2014, copy of which is appended Annxure No.5 to the writ petition. The aforesaid judgement was delivered much prior to the judgement rendered by Hon'ble Supreme Court in the case of Savitri Devi Vs. State of U.PL. And others reported in (2015) 7 SCC 21 which was delivered on 14.05.2015 and by means of which a decision of Full Bench of this Court rendered in the case of Gajraj (supra) was affirmed by the Supreme Court and thus, the petitioner cannot claim the benefit of the aforesaid judgement.13. Sri Ramendra Pratap Singh, learned counsel for the respondent no.4 placed reliance upon paragraphs 44 to 52 of the aforesaid judgment, which are quoted hereinbelow:-"44. We have also to keep in mind another important feature. Many residents of Patwari village had entered into agreement with the authorities agreeing to accept enhanced compensation at the rate of 64.7%. This additional compensation was, however, agreed to be paid by the authorities only in respect of land owners of Patwari village. The High Court has bound the authorities with the said agreement by applying the same to all the land owners thereby benefiting them with 64.7% additional compensation. There could have been argument that the authorities cannot be fastened with this additional compensation, more particularly, when machinery for determination for just and fair compensation is provided under the Land Acquisition Act and the land owners had, in fact, invoked the said machinery by seeking reference under Section 18 thereof. Likewise, the scheme for allotment of land to the land owners provides for 5% and 6% developed land in Noida and Greater Noida respectively. As against that, the High Court has enhanced the said entitlement to 10%. Again, we find that it could be an arguable case as to whether High Court could grant additional land contrary to the policy. Notwithstanding the same, the Noida authority have now accepted this part of the High Court judgment after the dismissal of the appeals filed by the Noida authority, and a statement to that effect was made by Mr. Rao.45. We may point out that while dismissing the appeals of Noida authority, following remarks were made:"9. Insofar as allotment of 10 per cent of the plots is concerned, the High Court, in exercise of its discretionary power, has thought it fit, while sustaining the notification issued by the authority for protecting them for allotting 10 per cent of the developed plots; and, there again they have put a cap of 2,500 sq.mtrs. In fact, in the course of the order, the High Court has taken into consideration the agreement that was entered into by the authority with the villagers of Patwari and, in some cases, the authority itself has agreed to raise 6 to 8 per cent of the developed plots to the agriculturists. The High Court has also taken into consideration the observations made by this Court in the case of Bondu Ramaswamy Vs. Bangalore Development Authority, 2010 (7) SCC 129, where this Court has gone to the extent of directing the authorities to allot 15 per cent of the developed plots. In our view and in the peculiar facts and circumtances of these cases, since the relief that is given to the respondents/agriculturists is purely discretionary relief by the Court in order to sustain the notification issued by the authorities, we do not find any good ground to interfere with the impugned judgment(s) and order(s) passed by the High Court, at the instance of the petitioners/appellants/ authorities, namely, NOIDA and Greater NOIDA.10. This order shall not be treated as a precedent in any other case."46. Thus, we have a scenario where, on the one hand, invocation of urgency provisions under Section 17 of the Act and dispensing with the right to file objection under Section 5A of the Act, is found to be illegal. On the other hand, we have a situation where because of delay in challenging these acquisitions by the land owners, developments have taken in these villages and in most of the cases, third party rights have been created. Faced with this situation, the High Court going by the spirit behind the judgment of this Court in Bondu Ramaswamy and Others (supra) came out with the solution which is equitable to both sides. We are, thus, of the view that the High Court considered the ground realities of the matter and arrived at a more practical and workable solution by adequately compensating the land owners in the form of compensation as well as allotment of developed Abadi land at a higher rate i.e. 10% of the land acquired of each of the land owners against the eligibility and to the policy to the extent of 5% and 6% of Noida and Greater Noida land respectively.47. Insofar as allegation of some of the appellants that their abadi land was acquired, we find that this allegation is specifically denied disputing its correctness. There is specific averment made by the NOIDA Authority at so many places that village abadi land was not acquired. It is mentioned that abadi area is what was found in the survey conducted prior to Section 4 Notification and not what is alleged or that which is far away from the dense village abadi. It is also mentioned that as a consequence of the acquisition, the Authority spends crores and crores of rupees in developing the infrastructure such as road, drainage, sewer, electric and water lines etc. in the unacquired portion of the village abadi. During the course of hearing, Chart No. 2 in respect of each village of Greater Noida was handed over for the consideration of this Court, wherein the amount spent by the Authority on the development, including village development (which is the unacquired village abadi), has been given in Column No. 4 thereof. It has been the consistent stand of the NOIDA Authority that prior to the issuance of Section 4 Notification under the Land Acquisition Act, 1894, survey was conducted and the abadi found in that survey was not acquired. In fact, affidavits in this respect have also been filed not only in this Court but also in the High Court. We have mentioned that there has been a long gap between acquisition of the land and filing of the writ petitions in the High Court by these appellants challenging the acquisition. If they have undertaken some construction during this period they cannot be allowed to take advantage thereof. Therefore, it is difficult to accept the argument of the appellants based on parity with three villages in respect of which the High Court has given relief by quashing the acquisition.48. To sum up, following benefits are accorded to the land owners:48.1. increasing the compensation by 64.7%;48.2. directing allotment of developed abadi land to the extent of 10% of the land acquired of each of the land owners;48.3 compensation which is increased at the rate of 64.7% is payable immediately without taking away the rights of the land owners to claim higher compensation under the machinery provided in the Land Acquisition Act wherein the matter would be examined on the basis of the evidence produced to arrive at just and fair market value.49. This, according to us, provides substantial justice to the appellants.50. Conclusion Keeping in view all these peculiar circumstances, we are of the opinion that these are not the cases where this Court should interfere under Article 136 of the Constitution. However, we make it clear that directions of the High Court are given in the aforesaid unique and peculiar/specific background and, therefore, it would not form precedent for future cases.51. We may record that some of the appellants had tried to point out certain clerical mistakes pertaining to their specific cases. For example, it was argued by one appellant that his land falls in a village in Noida but wrongly included in Greater Noida. These appellants, for getting such clerical mistakes rectified, can always approach the High Court.52. The Full Bench judgment of the High Court is, accordingly, affirmed and all these appeals are disposed of in terms of the said judgment of the Full Bench."14. After the aforesaid judgement of the Supreme Court the matter was again taken up before a Division Bench of this Court in the case of Mange @ Mange Ram Vs. State of U.P. and others reported in 2016 (8) ADJ 79 (DB). In the aforesaid case it was held that the action of the respondents in not giving additional developed abadi lands to the petitioner is neither arbitrary nor discriminatory. The relevant paragraphs of the aforesaid judgement namely Mange @ Mange Ram (supra) are reproduced hereinbelow:-"12. The Full Bench in order to save the acquisition proceedings had issued the direction for payment of additional compensation and for allotment of developed abadi plots in the extenuating facts and circumstances of the case. The Supreme Court acceded to the said consideration holding that the Full Bench was justified in issuing such directions in the peculiar facts and circumstances of the case and in order to save the acquisition proceedings from the vice of arbitrariness. The Supreme Court while affirming the decision of the Full Bench categorically held that the said decision would not be treated to form a precedent for future cases. The Supreme Court held:"50. Keeping in view all these peculiar circumstances, we are of the opinion that these are not the cases where this Court should interfere under Article 136 of the Constitution. However, we make it clear that directions of the High Court are given in the aforesaid unique and peculiar/specific background and, therefore, it would not form precedent for future cases."13. Thus, we are of the opinion that the ratio decendi of the Full Bench cannot be applied to similarly situated persons. The said benefit given by the Full Bench cannot be extended to the petitioners, even though they may be similarly situated and their land had been acquired under the same notification.14. We are of the view that the action of the respondents in not giving additional developed abadi land to the petitioners is neither arbitrary nor discriminatory, especially when there is no evidence to dispute the fact that the respondents have no developed land with them for allotment.15. In the light of the aforesaid, no relief can be granted to the petitioner. All the writ petition fails and are dismissed."15. Against the aforesaid judgement a S.L.P. was preferred before the Supreme Court in the case of Khatoon and Ors. Vs. The State of U.P. reported in (2018) 14 SCC 346. The same was rejected by the Supreme Court on the ground that the appellants have neither any legal right nor any factual foundation to claim the relief of allotment of additional developed abadi plot. The relevant portion of the judgement is reproduced hereinbelow:-"16. In other words, the case of the appellants (writ petitioners) before the High Court was that the reliefs, which were granted to the landowners by the Full Bench in Gajraj's case (supra) be also granted to the appellants because their lands were also acquired in the same acquisition proceedings in which the lands of the writ petitioners of Gujrat's case (supra) was acquired. In effect, the relief was prayed on the principles of parity between the two landowners quo State.17. It is, however, pertinent to mention that so far as the direction of the High Court to award additional compensation payable at the rate of 64.70% was concerned, the same was already implemented by the State by paying the compensation to all the landowners including the appellants without any contest.18. In this view of the matter, the only question before the High Court in the appellants' writ petitions that remained for decision was as to whether the appellants are also entitled to claim the relief of allotment of developed abadi plot to the extent of 10% of their acquired land subject to maximum of 2500 Sq.M.in terms of the judgment in Gajraj's case and Savitri Devi's case.36. Therefore, the only question that now survives for consideration in these appeals is whether the appellants are entitled to get the benefit of second direction issued by the High Court in the case of Gajraj (supra), namely, allotment of developed abadi plot to the appellants.37. In our considered opinion, the appellants are not entitled to get the benefit of the aforementioned second direction and this we say for the following reasons.38. First, the High Court in the case of Gajraj (supra) had, in express terms, granted the relief of allotment of developed abadi plot confining it only to the landowners, who had filed the writ petitions. In other words, the High Court while issuing the aforesaid direction made it clear that the grant of this relief is confined only to the writ petitioners [see condition No. 3(a) and (b)].39. Second, so far as the cases relating to second category of landowners, who had not challenged the acquisition proceedings (like the appellants herein) were concerned, the High Court dealt with their cases separately and accordingly issued directions which are contained in condition No. 4(a) and (b) of the order.40. In condition No. 4(a) and (b), the High Court, in express terms, directed the Authority to take a decision on the question as to whether the Authority is willing to extend the benefit of the directions contained in condition No. 3(a) and (b) also to second category of landowners or not.41. In other words, the High Court, in express terms, declined to extend the grant of any relief to the landowners, who had not filed the writ petitions and instead directed the Authority to decide at their end as to whether they are willing to extend the same benefit to other similarly situated landowners or not.42. It is, therefore, clear that it was left to the discretion of the Authority to decide the question as to whether they are willing to extend the aforesaid benefits to second category of landowners or not.43. Third, as mentioned supra, the Authority, in compliance with the directions, decided to extend the benefit in relation to payment of an additional compensation at the rate of 64.70% and accordingly it was paid also. On the other hand, the Authority declined to extend the benefit in relation to allotment of developed abadi plot to such landowners.44. Fourth, it is not in dispute, being a matter of record, that when the Authority failed to extend the benefit regarding allotment of additional abadi plot to even those landowners in whose favour the directions were issued by the High Court in the case of Gajraj (supra) and by this Court in Savitri Devi (supra), the landowners filed the contempt petition against the Authority complaining of non-compliance of the directions of this Court but this Court dismissed the contempt petition holding therein that no case of non-compliance was made out.45. In our view, the appellants have neither any legal right and nor any factual foundation to claim the relief of allotment of additional developed abadi plot. In order to claim any mandamus against the State for claiming such relief, it is necessary for the writ petitioners to plead and prove their legal right, which should be founded on undisputed facts against the State. It is only then the mandamus can be issued against the State for the benefit of writ petitioners. Such is not the case here.46. Indeed, when the landowners, in whose favour the order was passed by the High Court for allotment of such plot, could not get the plot then, in such event, there arise no occasion for the appellants herein to claim such relief for want of any factual and legal basis in their favour.47. One cannot dispute that the Act does not provide for grant of such reliefs to the landowners under the Act. Similarly, there is no dispute that the State paid all statutory compensation, which is payable under the Act, to every landowner. Not only that every landowner also got additional compensation at the rate of 64.70% over and above what was payable to them under the Act.48. The reliefs in the case of Gajraj (supra) were granted by the High Court by exercising extraordinary jurisdiction under Article 226 of the Constitution and keeping in view the peculiar facts and circumstances arising in the case at hand. They were confined only to the landowners, who had filed the writ petitions. Even this Court in Savitri Devi's case (supra) held that the directions given be not treated as precedent for being adopted to other cases in future and they be treated as confined to that case only.49. That apart, there is no basis for the appellants to press in service the principle underlined in Article 14 in such cases for the simple reason that firstly, Article 14 does not apply to such cases; and secondly, there is no similarity between the case of those landowners, who filed the writ petitions and the present appellants, who did not file the writ petitions. Though the High Court, in Gajraj's case (supra) decided the rights of both categories of landowners but the cases of both stood on a different footing. It is for these reasons, the appellants were not held entitled to take benefit of condition No. 3 (a) and (b) of the case of Gajraj (supra) which was meant for the writ petitioners therein but not for the appellants. However, the appellants were held entitled to take the benefit of only condition No. 4 (a) and (b) of the said judgment and which they did take by accepting the additional compensation payable at the rate of 64.70%.50. In our view, therefore substantial justice was done to all the landowners including the appellants, as observed in para 49 of Savitri Devi's case (supra).51. In our opinion, therefore, there is no case made out by the appellants for grant of any relief much less the relief of allotment of additional developed abadi plot. If we entertain the appellants' plea for granting them the relief then it would amount to passing an order contrary to this Court's directions contained in para 50 of the order passed in Savitri Devi's case (supra).52. In the light of the foregoing discussion and on examining the appellants' case from any angle, we find no merit in the appeals, which fail and are accordingly dismissed."16. It needs to be remembered that the Full Bench in Gajraj had issued specific directions for providing 64.70% additional compensation and 10% abadi land to such persons who had filed w

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rit petitions but in regard to such tenure holders who had not challenged the acquisition proceedings, left it open to the Authority to take a decision to provide 64.70% additional compensation as also to allot 10% abadi land. The petitioners do not have a vested right to claim 64.70% additional compensation and 10% abadi land. They were entitled to receive compensation in terms of the award made by the Special Land Acquisition Officer under section 11 of the Act. This additional compensation of 64.70% and 10% abadi land was granted by the Full Bench in Gajraj (supra) to save the acquisition as it had found that dispensing with the enquiry under section 5-A of the Act was not justified. The petitioners admittedly had not filed any writ petition to challenge the acquisition proceeding and had slept over his rights. The Full Bench had drawn a distinction between those who had filed writ petitions and those who had not. The petitioners cannot be permitted to contend that the same benefit should be given to them as was provided to those who had filed writ petitions, more specially in view of the fact that the petitioners have already accepted compensation as per Karar Niyamawali.17. It is to be noted at this juncture that earlier also a Full Bench of this Court in the case of Ravindra Kumar Vs. District Magistrate, Agra and others reported in 2005 (1) UPLBEC 118 has held that land acquisition act is itself a self contained code. Any other provision providing for further benefit has not been mentioned in the Land Acquisition Act. In that case the petitioner had claimed employment in the State Government over and above the compensation paid which the Court declined. The paragraph 22 of the aforesaid judgement is reproduced below hereinbelow :-"22. There is no provision under the Land Acquisition Act under which the Circular dated 28.12.1974 could be issued. Whatever compensation has to be given for acquisition of the land is provided under the Land Acquisition Act itself which is a self-contained Code. Any G.O. providing for any further benefit not mentioned in the Land Acquisition Act would be inconsistent with the intention of Parliament as contained in the Land Acquisition Act. Hence any such GO. would be violative of the Land Acquisition Act and would hence be invalid. Such a G.O. will also violate Article 16 of the Constitution as already mentioned above."18. Thus, in view of the aforesaid facts and circumstances of the case, no indulgence is to be granted in exercise of equitable jurisdiction under Article 226 of the Constitution of India.19. The writ petition is accordingly dismissed. No order as to costs.
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