- (1.) SHRI Mahadeoji and SHRI Hanumanji, the two deities, through their Mutwalli Bindeshari Prasad, have filed this writ petition praying to quash the Notification dated 25-2-1991 under Sec tion 4 of the Land Acquisition Act (hereinafter referred to as 'the Act') as contained in Annexure-3 and the Notifica tion dated 20-6-1991 under Section 6 of 'the Act' as contained in Annexure-4, in so far as they relate to their 1. 38 Acres of Lands bearing plot Nos. 372/2 (372/3 as per Khatauni) of Village Lalpur-II (Meerapur Bashi) Pargana Shivpur,tehsil and District Varanasi. Their further prayer is to command the respondents not to dispossess them from their aforemen tioned lands and to demolish construc tions made thereon or acquire them.
(2.) VIDE order dated 8-8-1991 time was granted to the respondents to file counter-affidavit and the Court directed that 'the petitioners shall not be dispossessed from the land in dispute, if he has not already been dispossessed therefrom'. 2. 1. Thereafter vide order dated 6-3-1998 this writ petition was admitted as even though "more than six and a half years elapsed the said respondents have not cared to file counter affidavit". In the supplementary counter af fidavit filed on 31-8-1999 which has been sworn by Sri R. Y. Mishra, the Additional City Magistrate-lv In-Charge/special Land Acquisition Officer (J. O.) Varanasi, it has been stated that pursuant to the interim order of the Court possession of the land in question was not taken. 3. 1. No affidavit in opposition has been filed by respondent No. to the state ment made by respondent Nos. 1 to 4 in this supplementary affidavit despite grant of opportunity. The Pleadings: The case of the petitioners is to this effect: Manno Lal and Dhanno Lal, who were owners of the aforesaid land, ex ecuted a registered deed to trust dated 25-8-1942/30-9-1946, as contained in An- nexure-2, in their favour and since then they are owners thereof. Their name also stands recorded in the Khatauni of 1393 to 1398-Fasli of khata khatauni No. 193, Khasra Nos. 372/3 Area = 1. 38 Acres and 394/4 Area = 1. 25 Acres of village Lalpur. The place is holy and surrounded by pucca boundary Walls of about 8 feet height, on which there are two big temples of their. Besides the temples, there is a dharamshala, consisting of more than 30 Pucca rooms being used by the pilgrims. There is a big Verandah having shed there upon, a Pucca wall having a chabutra, which are in existence for about 40- 45 years, all presently worth not less than Rs. 10,00,000. On the North there is a link road known as Verra Patti Road on the West there is land belonging to Cantt used for Chandmari, on the East there is dense ly populated Abadi adjacent to the main Bhojoobir-Sindhaura Road and towards South there is a very meagre area of land and thereafter there is again Abadi. The land and constructions do not fall within the Nagar Mahapalika, Varanasi. The Notifications have been made dispensing with the provisions under Section 5-A of the Act for construction of Residential colony, but without making any spot in spection, otherwise the facts aforemen tioned would have come to the notice and the land could not have been acquired for the purpose. Towards North side of Verra-Patti Road there exists 500 Acres of vacant lands which could have been easily used for the purpose in question, but they seek to acquire a very meagre area towards North side of the said road. In the Master plan of the Varanasi Development Authority, prepared under the Urban and Planning Development Act, 1973, the lands of vil lage Lalpur-Il have been reserved for agricultural purpose and, thus, it could not be used for residential purpose. Even though the lands are sought to be acquired for Varanasi Development Authority, which had large scheme of constructing residential colonies, 3 or 4 years ago its two schemes named Pahariya Avas Yojna and Konia Avas Yojna, have not been given any shape as yet and thus by invoking the emer gent provisions of Section 17 (1) of the Act merely a colour has been given to the ur gency though there was not such an urgen cy and there was no material before the Government to form such an opinion jus tifying invoking of emergent provisions of 'the Act'. The impugned Notifications were also not circulated three times in the daily newspapers having wide circulation in the locality.
(3.) IT has been stated by Sri P. K. Bisaria, learned Standing Counsel appear ing on behalf of respondent Nos. 1 to 3, that a counter-affidavit was also filed on 11-8-1999 which, however, is not on the record. From the copy of the counter-af fidavit allegedly filed on behalf of respon dent Nos. 1 to 3, as shown to us, it appears that it has been stated therein, inter alia, to the effect that the statement that there was no material justifying invoking of the emergent provisions is not admitted and that looking to the urgency it was invoked. In the counter affidavit, filed on behalf of respondent No. 4, which has been sworn by its Head Clerk, it has been stated, to this effect: The temple of Hanumanji and Shivji is only on 8 decimals of land and the remaining area is vacant used for agricultural purpose and thus not Abadi. It has been incorrectly stated that there is a dharamshala with 30 rooms. There are only 2 rooms adjacent to the temple, and a Verandah of 6 feet width. The boundary walls are of about 3 feet height. All these have not been touched at all and felt from acquisition. It has been incorrectly stated that pilgrims used to stay in the rooms which are being used by the servants. The village Lalpur comes within the limit of Varanasi Development Authority and has nothing to do with the Nagar Mahapalika, Varanasi. Link road is at the distance of one furlong towards north of the disputed land, though on the West there is military land over which trees have been planted by the Forest Department and no Chandmari is there. It has been incorrectly stated that there is Abadi towards East of the land, though there is Sindhaura road. Survey as well as Spot Inspection were done (copy appended as Annexure-C. A. 1) and only the vacant lands have been acquired to meet the acute shortage of the Houses at Varanasi, Vide Government Order dated 2-4- 1990 (copy appended as Annexure-C. A. 2) the State Government has con sented acquisition of 51. 632 Acres of lands of Village Lalpur-11 for construction of colony. Bhoo Udyog Parishad has also given its permission for acquisition. Vide Notification dated 11-11-1991, as con tained in Annexure- C. A. 3, the nature of the land was also changed from agricul tural to residential purpose by changing the Master Plan of Varanasi. The Notifica tion made under Section 4 of the Act was published in the daily newspapers 'dainik Jagaran' and 'gandiv' dated 8-4-1991 and 9-4-1991. The Notification made under Section 6 of the Act, apart from being published in Gazette Extra ordinary on 21-6-1991, was also published in the newspapers 'jaydesh' and 'gandiv' dated 2-7- 1991, copies of cuttings of which are appended as Annexures C. A. 4 to 7. The two Yojnas have already been finalised and houses have been allotted. It has been wrongly stated that 3-4 years time are being taken for completion of the residen tial colony. As the matter was urgent, the provisions of Section 5-A were dispensed with and Section 17 (1) of the Act invoked. As on the vacant land the petitioners il legally stated making constructions in 1991 for which notices were sent and they were directed to stop illegal constructions. It has been incorrectly stated that the residential constructions are existing since long back. For these reasons the writ peti tion be dismissed.;