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2010 Supreme(All) 3121
[2010(10) ADJ 712 (DB)]
ALLAHABAD HIGH COURT
BEFORE : P.C. VERMA AND R.A. SINGH, JJ.
RAM AVTAR AND OTHERS …..Petitioners
Versus
STATE OF U.P. AND OTHERS …..Respondents
(Civil Misc Writ Petition Nos. 50056 and 54530 of 2008,
decided on 9th September, 2010)
Counsel :
W.H. Khan, J.H. Khan and Madan Mohan for the Petitioners; C.S.C. for the Respondents.
Headnote:Land Acquisition Act, 1894—Sections 11-A, 4, 17(1), 6, 23(1-A) and 28-A—U.P. Awas Evam Vikas Parishad Adhiniyam, 1965—Sections 28, 31, 32 and 55—Acqusition proceedings—Lapse of—Whether on account of not taking possession within two years, and not making award within said period from date of notification under Section 32 of Adhiniyam, read with Section 6 of 1894 Act, proceedings will be deemed to have been lapsed under Section 11-A, or not—Petitioners case that actual physical possession was not taken, and petitioners' continued to be in possession appears to be true, unless possession is taken by Parishad from tenure-holders—Inter-se taking possession between Amin and Assistant Engineer of Awas Vikas Parishad is of no effect—Moreover, admittedly possession has not been taken within two years i.e. by 18.11.2007 and therefore, taking of possession after much two years on 5.4.2008 will not save proceeding from being lapsed under Section 11-A of Act—Also, no award has been made till date—Therefore, acquisition proceedings in respect of disputed land are declared to have been lapsed under Section 11-A of Act—And respondents are restrained from interfering in peaceful physical possession of petitioners over disputed land. [Paras 6, 21, 22 and 23]
Result; Petition Allowed.
Hon’ble P.C. Verma, J.—Since both the above writ petitions are identical in nature, therefore they are being heard and disposed of by a common judgement.
By means of the present writ petitions, the petitioners have prayed the following reliefs :
(i) issue a writ, order or direction in the nature of certiorari quashing the notification dated 26.4.203 (ANNEXURE-1) under Section 28 of the U.P. Awas Evam Vikas Parishad Adhiniyum 1965 read with Section 4 of the Land Acquisition Act 1894 published in U.P. Gazette on 17.5.2003 and in local newspapers on 17.5.2003, 24.5.2003 and 21.5.2003, order of sanction dated 3.8.2005 (ANNEXURE-2) issued by State Government under Section 31 of the U.P. Awas Evam Vikas Parishad Adhiniyum 1965, notification dated 16.9.2005 (ANNEXURE-3) issued under Section 32 of the U.P. Awas Evam Vikas Parishad Adhiniyum 1965 published in U.P. Gazette dated 19.11.2005, corrigendum dated 5.10.2006 (ANNEXURE-4), order dated 7.6.2007 (ANNEXURE-5) of Government under Section 7 of the Land Acquisition Act 1894, the notification dated 7.6.2007 (ANNEXURE-6) issued by State Government under Section 17(1) of the Land Acquisition Act 1894 and the Adhikar Patras dated 5.4.2008 (ANNEXURE-7 and ANNEXURE-8);
(ii) issue a writ, order or direction in the nature of mandamus declaring the entire land acquisition proceedings including the aforesaid impugned notification and orders have lapsed on 18.11.2007 under Section 11-A of the Land Acquisition Act 1894 on account of not taking either possession or making award within two years from 16.9.2005 when the notification under Section 32 of the Adhiniyum 1965 read with Section 6 of the Act 1984 was published in U.P. Gazette on 19.11.2005;
(iii) issue a writ, order or direction in the nature of mandamus commanding the respondents not to interfere in possession of the petitioners over the disputed land.
2. Brief facts of the case are that the petitioners are tenure holders and Bhumidhar of the disputed plots situated at Village Kapsethi & Chakmali, Tehsil Karvi, District-Chitrakoot. Awas Aayukt, U.P. Awas & Vikas Parishad, Lucknow issued notification under Section 28 of the U.P. Awas Vikas Parishad Adhiniyum 1965 (hereinafter referred to as ‘’Adhiniyum’) dated 26.4.2003, which was published in U.P. Gazette dated 17th May, 2003 notifying that it has framed a scheme called ‘’Karvi Bhumi Vikas and Grih Sthan Yojana, Chitrakoot Dham” declaring that land comprised in the boundary given therein was proposed to be acquired for the said scheme and invited objections. Thereafter notices under Section 29 of the Adhiniyum were issued to the petitioners on 19.6.2003 and 20.6.2003 inviting objections. The petitioners filed objections individually as well as collectively objecting to the acquisition of their land on various grounds including that the petitioners were small tenure holders and the land sought to be acquired was fertile agricultural land. The petitioners also stated in their objection that there is vast unfertile land lying at Allahabad Banda Road near Bedi Puliya & Tulsi Degree College, which is most suitable for the scheme but without giving any opportunity of being heard to them and without considering their objections, the State Government sanctioned the scheme by order dated 3.8.2005 and issued notification under Section 32 of the Adhiniyum, read with Section 6 of the Land Acquisition Act 1894 (hereinafter referred to as ‘’Act’) by notification dated 16.9.2005, which was published in U.P. Gazette on 19.11.2005.
3. Thereafter a corrigendum was issued by notification dated 5.10.2006 published in official Gazette dated 25.11.2006 notifying that Khasra No. 72/2 was wrongly published in notification dated 15.11.2005 instead of plot No. 75/2 which was being corrected. The respondents did not take any action to implement the scheme after issuing notification under Section 32 of the Adhiniyum for almost two years and thereafter the order dated 7.6.2007 was passed by State Government
