BAHUJAN NIRBAL VARG SAHKARI GRIH NIRMAN SAMITI LTD. Vs. STATE OF U.P. AND ORS.
LAWS(ALL)-2015-11-24
HIGH COURT OF ALLAHABAD
Decided on November 05,2015

Bahujan Nirbal Varg Sahkari Grih Nirman Samiti Ltd. Appellant
VERSUS
State of U.P. and Ors. Respondents




JUDGEMENT

S.S. Chauhan, J. - (1.)THIS petition has been filed for quashing the notification issued under Section 4 read with Section 17 of the Land Acquisition Act, 1894 (for short "the Old Act") dated 5.9.2000 and notification issued under Section 6 read with Section 17 of the Old Act published on 16.2.2001 in respect of the land belonging to the petitioner society.
(2.)THE petitioner society is a registered Cooperative Housing Society under the provisions of the U.P. Cooperative Societies Act, 1965 having its Registration 3343/1988. The objective of the Society is to acquire, develop and sell the land to its members for residential purposes and the petitioner society has been continuously discharging its function since its inception. The petitioner society has undertaken large development of projects in past to cater and fulfil the needs of its members. The Society authorized its Secretary Sri Ajeet Singh to file the instant writ petition on behalf of the petitioner society vide resolution passed by the Managing Committee of the petitioner society on 5.4.2014. Up to the date of notification i.e. 5.9.2000 under Section 4 read with section 17 of the Old Act, the petitioner society had purchased the land measuring 34 bigha 16 biswa 10 biswansi in Village Maqdoompur, Pargana, Tehsil and District Lucknow bearing Khasra Nos. 25, 28, 39, 40, 41, 43, 45, 55, 54, 58A & B and 289 on respective dates from the respective owners through various sale deeds. Title over the land bearing aforesaid khasra numbers was acquired by the petitioner society and in pursuance thereof, name of the Society was entered into the revenue record i.e. Khetaunis of 1410 to 1415 fasli in respect of Khasra Nos. 25, 28, 39, 40, 41, 43, 45, 54 -Sa, 55, 58. In Khetauni of 1398 to 1403 fasli, Khasra Nos. 54 and 25 were recorded and in Khetauni of 1404 to 1409 fasli, Khasra No. 289 was recorded. The land purchased by the Society was sold to its members for construction of houses. Till the date of acquisition, the Society had purchased total land measuring 944261.80 sq. feet out of which 359931 sq. feet land has been allotted and sold to its members vide registered instruments and total land measuring 584330.8 sq. feet was under the ownership and possession of the petitioner society.
The State Government initiated acquisition proceedings in respect of the chak of land bearing aforesaid khasra numbers in the year 2000 vide notification issued under Section 4 read with Section 17 of the Old Act on 5.9.2000 followed by notification under Section 6 read with Section 17 of the Old Act published on 16.2.2001. Possession of the land notified under the aforementioned notification was taken by the opposite parties on various dates and thereafter, award was made under Section 11 of the Old Act in respect of the aforesaid khasra numbers on 29.10.2008. After declaration of the award under Section 11, Section 31 of the Old Act contemplates deposit of compensation in the court if the compensation has not been received by the owners. If for any reason, the amount has not been received by the persons interested, who are entitled to compensation, then the compensation is liable to be deposited in the court as contemplated under Section 31 (2) of the Old Act. In the instant case, neither any compensation has been paid to the petitioner nor has been deposited in the court where reference under Section 18 of the Old Act could have been made by the opposite parties. Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short "the New Act") came into force w.e.f. 1.1.2014 and under Section 24(2) of the New Act, a provision has been made that where an award under Section 11 of the Old Act has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid, the said proceedings shall be deemed to have lapsed. Proviso to Section 24 of the New Act deals with the situation where award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then all beneficiaries specified in the notification for acquisition under Section 4 of the Old Act shall be entitled to compensation under the New Act. Notification is also violative of Section 24(2) of the New Act. On these pleadings, the acquisition has been put to challenge in this petition.

(3.)SUBMISSION of learned counsel for the petitioner is that land possessed by the petitioner society cannot be challenged on the ground of fragmentation as provided under Section 168 -A of the UP ZA & LR Act (for short "ZA Act"). The aforesaid fragmentation is not applicable in the case of the petitioner. Further submission is that the award in the present case has been made prior to five years of coming into force the New Act and in such a contingency, if possession has not been taken or compensation has not been paid, then the acquisition proceedings shall stand lapsed. Learned counsel submits that admittedly, in the present case the award has been made prior to five years of coming into force the New Act and one of the contingencies that compensation has not been paid is writ large and therefore, acquisition proceedings shall stand lapsed. Learned counsel also submits that after award of compensation, if compensation could not be paid to the person interested or to the original owner, then it was incumbent upon the opposite parties to have deposited the compensation amount in the court to which reference under Section 18 of the Old Act could be made, but in the present case at no point of time the compensation was deposited in the court as contemplated under Section 31 (2) of the Old Act. So, also the acquisition proceedings shall stand lapsed in view of the law laid down by the Apex Court in the case of Pune Municipal Corporation and another v. Harakchand Misirimal Solanki and others, : (2014) 3 SCC 183.
;


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.