AMRESHWAR PRATAP SAHI,J. - (1.) This is a writ petition pertaining to land acquisition of certain plots of village-Harampur, Pargana-Loni, Tehsil-District-Ghaziabad assailed on the ground that the dispensation of inquiry under Section 5A under the Land Acquisition Act 1894 has been made against the material on record without there being any urgency and without inviting / entertaining objections of such persons who were interested and had purchased the land and were in occupation thereof. Thus, the invoking of Section 17 of the 1894 Act has been challenged on various contentions. The said issue is on the merits of the claim.
(2.) An objection had been raised with regard to the locus of the petitioners for maintaining the writ petition. The counter affidavit of the respondent no. 4, the body for whom the land had been acquired for industrial development in paragraph no. 4, had raised the issue of locus and also alleged that even if there were members of the petitioner no. 1- Association, no court fee had been paid on their behalf. A supplementary counter affidavit was also filed on 5th January, 2008 by the said respondent in response to the supplementary affidavit of the petitioners dated 17.12.2007 where a list of alleged 291 members of the petitioner no. 1-Association was appended. Under the orders of the Court, the court fee of 291 persons who were claimed by the petitioner no. 1 to be members was deposited. This deposit of Court fee on 16.4.2008 was made in terms of the final judgment in the writ petition dated 29th January, 2008 whereby the notifications were quashed and the writ petition was allowed. Thus, the Court fee came to be deposited after the judgment in the present writ petition was pronounced on 29th January, 2008. The respondent no. 4 aggrieved by the quashing of the proceedings in the background aforesaid filed SLP No. 14421 of 2008 (Civil Appeal No. 601 of 2012) that was allowed by Hon'ble the Apex Court on 17th January, 2012 by the following judgment:- "Leave granted. 2. We have heard Mr. R.P. Bhat, learned senior counsel for the appellant, and Mr. S.K. Dubey, learned counsel for the respondent No. 1. 3. In 1997, the appellant made proposal to the State Government for acquisition of 74.84 acres land for the purposes of industrial development in the name of Tronica City, Ghaziabad. Based on that proposal, the State Government issued notification under Section 4 of the Land 2 Acquisition Act, 1894 (for short, 'Act') proposing acquisition of 74.84 acres which was published in the Official Gazette on April 16, 2003. The State Government also invoked urgency clause and thereby dispensed with the enquiry under Section 5-A of the Act. The declaration under Section 6 of the Act was issued on August 30, 2003. It is the case of the appellant that thereafter notices under Section 9 of the Act were issued to the concerned owners on September 25, 2003. The objections were filed by the concerned owners on October 13, 2003 regarding rate of compensation. The Collector approved the rate on February 27, 2004. In between March 29, 2004 and June 8, 2004, the compensation was disbursed to the concerned owners and thereafter the concerned owners handed over the possession to the Land Acquisition Officer on October 20, 2004. 4. It was then that the respondent No. 1 Sunder Garden Welfare Association (for short, 'Association') comprising of 291 members, filed a Writ Petition, being Civil Misc. Writ Petition No. 53984 of 2004, before the Allahabad High Court. In the Writ Petition, the Association set up the case that they had purchased the land bearing plots Nos. 496, 497, 544, 501, 500, 578, 502, 504, 505, 498, 536, 538, 539 and 541 situate in village Harampur, Loni, Tehsil and District Ghaziabad, which after sub-division were distributed to its members. It is the 3 case of the Association that the above land was bhumidhar land and free from all encumbrances. It was avered that the members of the Association have got their houses constructed over their lands and developed a colony in the name of Sunder Garden Colony. The Association raised diverse grounds in the Writ Petition in challenging the notifications dated April 16, 2003 and August 30, 2003. 5. The present appellant contested the Writ Petition and challenged the very locus of the respondent No. 1 - Association being an unregistered society. The appellant also disputed the correctness of the averments made in the Writ Petition regarding purchase of the above plots by the Association. It is pertinent to notice that the subject matter of Writ Petition comprised of 29.43 acre land out of 74.84 acres acquired under the above notifications. 6. The High Court, after hearing the parties, by the impugned order has quashed the notifications dated April 16, 2003 and August 30, 2003. 7. On hearing the learned senior counsel for the appellant and counsel for the respondent No. 1, we are of the considered view that the High Court failed to examine the locus of the Association in right perspective. The legality of the transfer of the subject land in favour of the Association has not, at all, been examined. The material placed before the High Court does cast doubt as to 4 whether the Association or its members have, at all, acquired any legal right, title or interest in the land which is subject matter of acquisition. Admittedly, the awards came to be made on May 16, 2005 and January 13, 2006. In these awards, compensation for compulsory acquisition of the above land has been paid to the concerned owners. Neither the Association nor its members have challenged the awards before the civil court. The High Court ought to have examined the right, title or interest of the Association or its members in the acquired land before it quashed the impugned notifications. Obviously, the impugned notifications could not have been quashed at the instance of a party who has no legal right, title or interest in the subject land. On this short ground, we are constrained to set aside the order of the High Court. 8. Consequently, the Appeal is allowed and the impugned judgment dated January 29, 2008 passed by the Allahabad High Court is set aside. Civil Misc. Writ Petition No. 53984 of 2004 is restored to the file of the High Court for a fresh hearing and consideration of the matter. No costs. 9. The parties shall appear before the High Court on March 15, 2012. They shall be at liberty to file additional documents before the High Court. 10. On restoration of Civil Misc. Writ Petition No. 53984 of 2004, the interim order, if any, passed by the High Court shall become operative until the disposal of the above Writ Petition by the High Court."
(3.) Consequently, the Judgement of the High Court having been set aside, the matter stood remitted back to this Court for decision afresh. We had heard the matter on 22nd August, 2017 and learned counsel for the petitioner was called upon to assist the court as the case was adjourned on his request. The order dated 22.8.2017 is extracted herein under:- "Heard Shri Siddharth Srivastava, learned counsel for the petitioners, learned Standing Counsel for the respondent nos. 1,2 and 3 and Shri H.N. Singh, learned Senior Counsel along with Shri Prabhakar Awasthi, learned counsel for the respondent no. 4. The present writ petition has a chequered history. The petitioner Nos. 1 and 2 claim themselves to be an association of which the petitioner no. 2 is the alleged Secretary. The writ petition questions the acquisition of land under the Land Acquisition Act 1894, and has prayed for quashing of the notification under Section 4 and Section 6 of the said Act in respect of certain plots of village Harampur, Pargana Loni, Tehsil and District Ghaziabad. The writ petition was entertained and an interim order was passed where after the writ petition was finally allowed vide judgment and order dated 29th January, 2008 by a Division Bench of this Court. The U.P. State Industrial Development Corporation, the respondent no. 4 herein filed a Special Leave to Appeal before the Apex Court and the same was allowed vide judgment and order dated 17th January 2012 by a short judgment focusing on the point as to whether the petitioner-association had a locus to maintain the petition. With the assistance of the learned counsel we have perused the judgment of the High Court as well as the pleadings on record and we do not find any material which may indicate that the petitioner association was ever a tenure-holder recorded as such in terms of the U.P. Z.A. and L.R. Act, 1950 so as to claim any right, title or possession over the land in question. The petitioner no. 2 claiming himself the Secretary of the Association also has not disclosed the existence of any title in his favour in respect of the plots the acquisition whereof is subject matter of the present writ petition. The directions issued by the Supreme Court are categorical to the effect that this aspect having not been examined, the maintainability of the writ petition on behalf of the petitioners was questionable more so when the petitioner-association was professing to espouse the cause of its members who according to it were tenure holders. From the judgment of the High Court dated 29th January, 2008, it appears that the High Court proceeded to entertain the writ petition on this issue and held the petition to be maintainable after getting the defect of payment of court fee cured. According to the petitioners 291 affected persons had deposited the court fee. After the matter has been remitted by the Apex Court in the year 2012 itself, a supplementary counter affidavit has been filed on behalf of the respondents thereby giving details of the status of the claim of the so-called members of the petitioner-association. On the strength thereof it is alleged on behalf of the respondents that even those members do not have any right so as to maintain the petition. It is thus evident that the issue which has to be addressed first in terms of the judgment of the Apex Court dated 17th January, 2012, is the locus of the two petitioners before us and then also as to whether the petition can be continued on behalf of the so called members who are stated to have made deposit of court fee in terms of the judgment of the High Court dated 29th January, 2008. Shri Siddharth Srivastava, learned counsel for the petitioner prays for an adjournment. List in the next cause list." ;