SUKHVIR Vs. STATE OF U.P. AND ORS.
LAWS(ALL)-2016-3-56
HIGH COURT OF ALLAHABAD
Decided on March 17,2016

Sukhvir Appellant
VERSUS
State of U.P. and Ors. Respondents




JUDGEMENT

Shashi Kant, J. - (1.)Heard Sri B.C. Rai, learned counsel for the petitioner, learned Standing Counsel for respondents No. 1 to 4 and Sri Mahendra Pratap, Advocate, for respondent No. 5. With the consent of learned counsel for the parties this writ petition is being heard and decided at the stage of admission itself under the Rules of the Court without calling for any counter or rejoinder affidavit.
(2.)This writ petition under Article 226 of the Constitution of India has been filed challenging supplementary award dated 18.04.2015 (Annexure 20 to the writ petition) prepared by Additional District Magistrate Irrigation, Ghaziabad, respondent No. 4 and also to declare entire land acquisition proceedings initiated under Land Acquisition Act, 1894 (hereinafter referred to as "Act, 1894") in respect of land to the extent of 120.4 bigha comprised in plot Nos. 1061, 1062, 1066, 1067, 1045, 1049, 1050, 1053, 1036/2 and 928/1, situated at revenue village Makanpur, Pargana Loni, Tehsil Dadri, District Ghaziabad, belonging to the petitioner stood lapsed in view of Sec. 24(2) of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as "Act, 2013").
(3.)Brief facts giving rise to aforesaid writ petition are:
"3.1 The State Government issued notification dated 16.08.1988 under Sec. 4 of Act, 1894 applying urgency provisions and dispensing with provisions of filing objections under Sec. 5A of Act, 1894 for the purpose of construction of Housing Colony under planned development scheme by Ghaziabad Development Authority (hereinafter referred to as "GDA"). The total area of acquisition was 1295.4927 acres.

3.2 Pursuant to aforesaid notification, State Government issued declaration dated 22.02.1989 under Sec. 6 of Act, 1894. However, the land of petitioner was included in the said declaration. However, petitioner's land comprised of plot Nos. 1061, 1062, 1066, 1067, 1045, 1049, 1050, 1053, 1036/2 and 928/1, admeasuring 120.4 bigha land was not included in the said notification. A corrigendum dated 26.06.1989 was issued by the State Government in respect of the land not included in the aforesaid notification under Sec. 4 of Act, 1894.

3.3 The State Government, pursuant to the aforesaid corrigendum issued notification dated 31.07.1989 stating that after expiry of 15 days from the date of publication of the notice under Sec. 9(1) of Act, 1894, the Collector, Ghaziabad might be take the possession of land mentioned in the schedule. The Special Land Acquisition Officer (Irrigation) Ghaziabad appears to have caused public notice, taking note of the aforesaid notification. By issuing a notice dated 03.08.1989 under Sec. 9(1) and (2) of Act, 1894 petitioner was invited, to present his claim for compensation before Collector, Ghaziabad on 18.08.1989. By letter of authority in favour of GDA, the State Government allegedly handed over possession of the land acquired, including the land of the petitioner.

3.4 A writ petition No. 23938 of 1990, challenging the notification dated 16.08.1988, declaration dated 22.02.1989 and corrigendum dated 26.6.1989 was filed by the petitioner in which vide order dated 12.09.1990, this Court stayed dispossession of the petitioner from the disputed plots.

3.5 The Special Land Acquisition Officer passed award dated 30.07.1991 under Sec. 11 of Act, 1894 in respect of the land notified on 16.08.1988. The award was passed determining compensation of land @ Rs. 90 per Sq.yards. From 1991 to 2005 the petitioner's land remained in his possession and GDA never came in actual physical possession of the land on the basis of the alleged letter of authority dated 18.08.1989.

3.6 Ultimately, vide order dated 19.01.2005, petitioner's aforesaid writ petition was ultimately dismissed by this Court upholding notification under Sec. 4 of Act, 1894 and declaration under Sec. 6 dated 22.02.1989.

3.7 Challenging the order dated 19.01.2005, petitioner preferred S.L.P. (C) No. 11311 -11312 of 2005 which was also dismissed by the Apex Court granting liberty to the petitioner to approach the State Government under Sec. 48 of Act, 1894. Pursuant thereto, the petitioner made a representation dated 09.09.2005, which remained pending for more than a year. On 19.10.2006 the GDA started demolishing constructions of petitioner and destroyed the crop standing on the land.

3.8 Vide letter dated 08.05.2006, the State Government called report from GDA on the points (i) whether construction existed on the spot; and (ii) owner is in possession over the acquired land or not. The Revenue Authorities submitted report dated 17.08.2008 (Annexure 16 to the writ petition) stating that Likhi Ram and petitioner are in actual physical possession of their respective land. On 06.05.2008 Special Secretary passed order directing the GDA to maintain status quo with regard to petitioner's land and submit detailed report to the State Government. In the circumstances, an application was given by the petitioner to the Secretary (Home) Government of U.P. On which an order was passed directing the SSP, Ghaziabad to take necessary action.

3.9 The petitioner then filed writ petition No. 62852 of 2006, which was disposed of vide order dated 21.11.2006 directing the State Government to dispose of representation of the petitioner, under Sec. 48 of Act, 1894 within three months. Thereafter, a contempt petition No. 1629 of 2007 was filed in which notice was issued.

3.10 The State Government it is claimed, on its own, and without any information or notice to the petitioner, passed an order dated 26.11.2007 whereby representation of the petitioner has been rejected. The said order of rejection was never communicated to the petitioner. Accordingly, on 30.04.2008 petitioner made an application to the Special Secretary against the threat of dispossession.

3.11 The GDA, merely on the basis of paper possession, transferred the petitioner's land to a real estate entity, i.e. Akanksha Society, for commercial exploitation in spite of the fact that acquisition is not completed under provisions of Sec. 11 -A, Sec. 17(3A) of the Act, 1894 and no payment of a single penny has been made to the petitioner towards the claim till date, the GDA did not bother to comply the same. The office bearers of Akanksha Society on 30.04.2010/10.06.2010 tried to trespass upon the petitioner's land and entered upon the land with JCB machines. However, on police intervention, they were forced to leave. The Deputy Secretary vide communication dated 05.05.2010, taking note of the order dated 06.05.2008 then directed the GDA to comply the said order and submit report in this regard.

3.12 The petitioner filed writ petition No. 35217 of 2010 praying for a relief not to dispossess the petitioner from his land pending his representation by use of force. Counter affidavit was filed by GDA in the aforesaid writ petition by which petitioner came to know that his earlier representation dated 09.09.2005 has been rejected by State Government way back on 26.11.2007. The said order of rejection of representation has been challenged by petitioner by an amendment in Writ Petition (C) No. 35217 of 2010.

3.13 The Additional District Magistrate Irrigation, Ghaziabad made a supplementary award dated 18.04.2015 under Act 1894 for acquisition in respect of petitioner's land in order to save applicability of Act, 2013. In this factual background, this writ petition has been filed."

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