Point of Law: Offence of Murder – Death Sentence Confirmed - Imposition of death sentence in ‘rarest of rare’ cases - Instant case falls in category of 'rarest of rare case', warranting capital punishment. Hence death sentence awarded to appellant under Section 302 of IPC is confirmed.

JUDGMENT :

DINESH KUMAR SINGH, J.

1. The present writ petition has been filed by Lucknow Omaxe City Residents and Allottees Association, a Society registered under the Societies Registration Act, 1860 (hereinafter referred to as ‘The Act, 1860’) and its two office bearers, who are also the residents of Housing Complex developed by M/s Omaxe Limited, respondent no. 6 named as ‘Omaxe City’ and its subsidiary companies (collectively called as ‘Developer’). The housing complex has been developed by the M/s Omaxe in an area of around 140 acres at Village Aurangabad Khalsa, Raebareli Road, Lucknow, Near Amar Shaheed Path.

2. The State Government took a policy decision vide Government Order dated 25th January, 1996 in order to mitigate difficulties faced in integrated development of an area/project due to location of parcels of land belonging to Gram Samaj etc. around the area proposed to be developed. It was felt that if such parcels of land were consolidated, then the utility of such land and its value would get substantially increased and, there would not be any impediment to sanction the layout and development plan for such an area. In view of the aforesaid, it was directed that if in any layout plan of any area, for development, the parcels of land of Gram Samaj are situated within the layout plan, then the sanctioning agency of the layout plan would be empowered to consolidate such parcels of land of Gram Samaj and, secure an undertaking from Developer to leave the consolidated land which should have approach road. It was also provided that if providing approach road was not feasible at all, then the value of such parcels of land belonging to Gram Samaj be charged from the Developer. The outlay plan would only be passed, if the Developer would agree to such a condition.

3. On applications filed under Section 161 of the U.P. Z.A. and L.R. Act, 1950 by the Developer for exchange of Gram Samaj land, which was in different parcels, total area 4.5422 hectares, these lands were ordered to be exchanged with the same amount of land which was offered by the Developer vide order dated 14the December, 2006 passed by the Sub-Divisional Magistrate, Sadar, Lucknow in Case No. 03/12/06-07 and two other cases. It was specifically recorded in the said orders that the land of Gram Samaj was not the land of public utility and, for the land offered in exchange of the land of Gram Samaj, an approach road was proposed, which would be available for the exchanged land.

4. The land of Gram Samaj subsequently vested in Lucknow Nagar Nigam, Lucknow after issuance of the relevant notification by the State Government under Section 3 of the U.P. Municipal Corporation Act, 1959 (hereinafter referred to as ‘The Act, 1959’) as is provided under Section 126 of the Act, 1959. Initially, in the layout plan submitted by the Developer, they proposed 12 meters wide approach road. The Nagar Nigam granted ‘no objection certificate’ for the housing project proposed to be developed by the Developer on 24th November, 2002. In the said ‘no objection certificate’ it was specifically provided that instead of 12 meters wide approach road, 18 meters wide approach road would be constructed. It was further provided that a case regarding exchange of Gram Samaj land to the extent of 24566.62 square meter was pending before the Municipal Corporation, Lucknow and, therefore, till the final decision was taken on the aforesaid subject, the Developer would be allowed to carry out the development work in the proposed layout plan. The affidavits dated 13th April, 2006 on behalf of the Developer were submitted, stating therein that the Developer would provide approach road to the land given in exchange to the Lucknow Nagar Nigam in lieu of the land of Gram Samaj. In pursuance of the aforesaid ‘no objection certificate’ submitted by the Developer, a revised layout plan was submitted by the Developer before the Lucknow Development Authority, providing therein 18 meters approach road to the land