Dismissed

Umraon and 12 Others v. State of U.P. and 3 Others

Allahabad HC28 May 2018WRIC/18746/2018

Case brief

AI extract

What is this about?

A Division Bench of the High Court dismissed a writ petition seeking 10% developed abadi land. The Court held that such land was allotted only to those who challenged acquisition in the Gajraj Full Bench case. Petitioners who did not challenge and later received 64.70% compensation were denied the abadi land benefit, finding the Authority's decision non-arbitrary.

What did the court decide?

Writ petition seeking direction to allot 10% developed abadi land dismissed; no relief granted to petitioners.

Umraon and 12 Others Vs State of U.P. and 3 Others — Land Acquisition | Allahabad HC (2018)

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Court No. - 39

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Case :- WRIT - C No. - 18746 of 2018

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Petitioner :- Umraon And 12 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Hira Lal Singh(Kushwaha) Counsel for Respondent :- C.S.C.,Kaushalendra Nath Singh

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Hon'ble Dilip Gupta,J. Hon'ble Neeraj Tiwari,J.

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This petition has been filed for a direction upon the respondents to allot remaining 5% developed abadi land in view of the decision of a Full Bench of this Court in Gajraj & Ors. Vs. State of U.P. & Ors.¹ . It needs to be stated that the petitioners have already been paid 64.70% additional compensation and 5% developed abadi land was also given to them.

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The petitioners claim to have been owners and bhumidhars of certain lands in revenue Village-Kondli Bangar, Sector-149, District Gautam Budh Nagar. After issuance of the notification under section 4(1) of the Land Acquisition Act, 1894² for acquisition of a large tract of land including the land of the petitioners followed by a declaration made under section 6 of the Act and after completing all the formalities, the possession of the acquired land had been taken and the award was made. Consequently, the compensation was paid to the tenure-holders.

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One of the plea that was raised before the Full Bench in Gajraj was that the State Government was not justified in 1 2011 (11) ADJ 1

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2 The Act

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2 dispensing with the provisions of Section 5-A of the Act by invoking the provisions of sub-sections (1) and (4) of Section 17 of the Act. The Full Bench held that the State was not justified in dispensing with the enquiry contemplated under Section 5-A of the Act. Three sets of directions were then issued. Some of the writ petitions that had been filed with unexplained delay and laches were dismissed. The notifications issued in respect of villages where no development had taken place were quashed. However, in respect of some villages where substantial development had taken place, instead of quashing the acquisition proceedings even after accepting the plea that the provisions of Section 17(1) of the Act were wrongly invoked, the Full Bench enhanced the compensation by 64.7% as well as issued directions for allotment of developed abadi plot. The operative portion of the directions issued by the Full Bench in respect of petitions where relief for additional compensation and allotment of developed abadi plot was granted, is contained in paragraphs 482(3) and 482(4) and the same is as follows:-

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“3. All other writ petitions except as mentioned above at (1) and (2) are disposed of with following directions:

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(a) The petitioners shall be entitled for payment of additional compensation to the extent of same ratio (i.e. 64.70%) as paid for village Patwari in addition to the compensation received by them under 1997 Rules/award which payment shall be ensured by the Authority at an early date. It may be open for Authority to take a decision as to what proportion of additional compensation be asked to be paid by allottees. Those petitioners who have not yet been paid compensation may be paid the compensation as

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well as additional compensation as ordered above. The payment of additional compensation shall be without any prejudice to rights of land owners under section 18 of the Act, if any.

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(b) All the petitioners shall be entitled for allotment of developed Abadi plot to the extent of 10% of their acquired land subject to maximum of 2500 square meters. We however, leave it open to the Authority in cases where allotment of abadi plot to the extent of 6% or 8% have already been made either to make allotment of the balance of the area or may compensate the land owners by payment of the amount equivalent to balance area as per average rate of allotment made of developed residential plots.

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The Authority may also take a decision as to whether benefit of additional compensation and allotment of abadi plot to the extent of 10% be also given to ;

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(a) those land holders whose earlier writ petition challenging the notifications have been dismissed upholding the notifications; and

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(b) those land holders who have not come to the Court, relating to the notifications which are subject matter of challenge in writ petitions mentioned at direction No.3.”

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It is, therefore, clear that the Full Bench in Gajraj , instead

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of quashing the acquisition proceedings under challenge before it in regard to certain villages in which extensive development had taken place, even after holding that providing of opportunity to file objections under Section 5-A of the Act had wrongly been denied to the tenure-holders, protected the acquisition proceedings by directing for payment of additional compensation and for providing certain percentage of developed abadi plot. This benefit was restricted to the tenure holders who had challenged the acquisition proceedings before the Full Bench.

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However, the Full Bench in paragraph 482(4) also directed that the Authority may take a decision as to whether the benefit of additional compensation and allotment of 10% abadi plot be given to those tenure-holders whose petitions to challenge the acquisition proceedings had earlier been dismissed by the Division Bench of the High Court and to those who had not filed writ petitions to challenge the notification in issue before the Full Bench.

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The decision rendered by the Full Bench in Gajraj was assailed before the Supreme Court in Savitri Devi Vs. State of U.P. & Others³ . The portion of the judgment of the Supreme Court relevant to the controversy involved in this petition, is as follows:-

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“46. Thus, we have a scenario where, on the one hand, invocation of urgency provisions under Section 17 of the Act and dispensing with the right to file objection under Section 5-A of the Act, is found to be illegal. On the other hand, we have a situation where because of delay in challenging these acquisitions by the landowners, developments have taken in these villages and in most of the cases, third party rights have been created . Faced with this situation, the High Court going by the spirit behind the judgment of this Court in Bondu Ramaswamy and Others (2010) 7 SCC 129 came out with the solution which is equitable to both sides. We are, thus, of the view that the High Court considered the ground realities of the matter and arrived at a more practical and workable solution by adequately compensating the landowners in the form of compensation as well as allotment of developed abadi land at a

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3 (2015) 7 SCC 21

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higher rate i.e. 10% of the land acquired of each of the landowners against the eligibility and to the policy to the extent of 5% and 6% of Noida and Greater Noida land respectively .

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Keeping in view all these peculiar circumstances, we are of the opinion that these are not the cases where this Court should interfere under Article 136 of the Constitution. However, we make it clear that directions of the High Court are given in the aforesaid unique and peculiar/specific background and, therefore, it would not form precedent for future cases .”

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(emphasis supplied)

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Learned counsel for the petitioners has stated that though the notification issued under section 4(1) of the Act by which the lands of the petitioners were acquired was under challenge before the Full Bench in Gajraj but as the petitioners had not filed any writ petition, the petitioners are covered by paragraph 482(4) of the judgment in Gajraj which required the Authority to take a decision as to whether the benefit of additional compensation and allotment of abadi land to the extent of 10% should also be given to those landowners who had not filed writ petitions to challenge the notification. Learned counsel also stated that the petitioners had been paid 64.70% additional compensation and 5% developed abadi land was also given in accordance with the resolution of the Board but the petitioners are entitled to 10% abadi plot in terms of the decision of the Full Bench in Gajraj .

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Learned counsel for the petitioners submitted that the decision taken by NOIDA not to allot 10% abadi land to tenure

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holders whose acquisition were covered by the Full Bench in Gajraj but had not filed petitions to challenge the acquisition proceedings is arbitrary as there is no rationale in not granting this benefit to persons who had not filed writ petitions, particularly when such persons have been granted the additional compensation of 64.70%.

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Sri Kaushalendra Nath Singh, learned counsel appearing for Noida has, however, submitted that the Full Bench in Gajraj had left it open to the Authority to take a decision as to whether additional compensation and 10% abadi land had to be given to such persons who had not filed writ petitions. The submission is that the Authority after carefully examining the financial position and the land available with the Authority took a conscious decision to provide 64.70% additional compensation to such persons who had not filed writ petitions to challenge the acquisition proceedings but in view of the paucity of land available with the Authority, 10% abadi land was being provided to only such persons who had filed writ petitions and not to those who had not filed writ petitions. Learned counsel submitted that this policy decision does not suffer from any arbitrariness which may call for interference by the Court under Article 226 of the Constitution.

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We have carefully considered the submissions advanced by learned counsel for the parties.

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It is as a consequence of the Full Bench decision in Gajraj and the decision rendered by the Supreme Court in Savitri Devi that the Authority was required to examine as to whether it would pay additional 64.70% compensation as also 10% abadi land to land owners who had not filed writ petitions to challenge the acquisition proceedings. It is on a consideration of various factors that the Authority took a conscious decision to pay only 64.70% additional compensation to such land owners who had not filed writ petitions. The Authority also decided not to allot 10% abadi land to such persons.

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A Division Bench of this Court in Mange @ Mange Ram Vs. State of U.P. & Ors.⁴ examined this issue and dismissed the writ petition holding that the action of the respondents in not giving 10% abadi land to such persons who had not filed writ petitions, is neither arbitrary nor discriminatory. We see no good reason to take a different view.

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It needs to be remembered that the Full Bench in Gajraj had issued specific directions for providing 64.70% additional compensation and 10% abadi land to such persons who had filed writ petitions but in regard to such tenure holders who had not challenged the acquisition proceedings, left it open to the Authority to take a decision to provide 64.70% additional compensation as also to allot 10% abadi land. The petitioners do not have a vested right to claim 64.70% additional compensation and 10% abadi land. They were entitled to receive compensation 4 2016 (8) ADJ 79

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in terms of the award made by the Special Land Acquisition Officer under section 11 of the Act. This additional compensation of 64.70% and 10% abadi land was granted by the Full Bench in Gajraj to save the acquisition as it had found that dispensing with the enquiry under section 5-A of the Act was not justified. The petitioners admittedly had not filed any writ petition to challenge the acquisition proceeding and had slept over their rights. The Authority, however, in view of the directions contained in paragraph 482(4) of the judgment rendered by the Full Bench in Gajraj, took a decision to provide only 64.70% additional compensation. This policy, in our opinion, does not suffer from any arbitrariness. The Full Bench had drawn a distinction between those who had filed writ petitions and those who had not. The petitioners cannot be permitted to contend that the same benefit should be given to them as was provided to those who had filed writ petitions. It needs to be pointed out that the petitioners had been provided 64.70% additional compensation and 5% abadi land.

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This issue has also been considered by the Supreme Court in Khatoon & Ors. Vs. The State of U.P. & Ors.⁵ and it has been held that tenure holders whose acquisition was not under challenge in Gajraj would not be entitled to this benefit. It needs to be stated that in the matter before the Supreme Court in Khatoon , the notification issued to acquire the land was under challenge in Gajraj but the tenure holder had not filed any writ 5 Civil Appeal No.2127 of 2018, decided on 15 February 2018

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petition to challenge the acquisition. It is in this context that the Supreme Court held that the tenure holder would be entitled to only 64.70% additional compensation and not to 10% abadi land as they had not filed any writ petition to challenge the acquisition, which acquisition was otherwise under challenge in Gajraj . The portion of the judgment concerning this fact is reproduced:

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"17. In other words, the case of the appellants (writ petitioners) before the High Court was that the reliefs, which were granted to the landowners by the Full Bench in Gajraj's case (supra) be also granted to the appellants because their lands were also acquired in the same acquisition proceedings in which the lands of the writ petitioners of Gujrat's case (supra) was acquired . In effect, the relief was prayed on the principles of parity between the two landowners quo State.

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It is, however, pertinent to mention that so far as the direction of the High Court to award additional compensation payable at the rate of 64.70% was concerned, the same was already implemented by the State by paying the compensation to all the landowners including the appellants without any contest .

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In this view of the matter, the only question before the High Court in the appellants' writ petitions that remained for decision was as to whether the appellants are also entitled to claim the relief of allotment of developed abadi plot to the extent of 10% of their acquired land subject to maximum of 2500 Sq.M.in terms of the judgment in Gajraj's case (supra) and Savitri Devi's case (supra).

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…............... 37. Therefore, the only question that now survives for consideration in these appeals is whether the appellants are entitled to get the benefit of second direction issued by the High Court in the case of Gajraj (supra),

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namely, allotment of developed abadi plot to the appellants .

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In our considered opinion, the appellants are not entitled to get the benefit of the aforementioned second direction and this we say for the following reasons .

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First, the High Court in the case of Gajraj (supra) had, in express terms, granted the relief of allotment of developed abadi plot confining it only to the landowners, who had filed the writ petitions . In other words, the High Court while issuing the aforesaid direction made it clear that the grant of this relief is confined only to the writ petitioners [see condition No. 3(a) and (b)].

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Second, so far as the cases relating to second category of landowners, who had not challenged the acquisition proceedings (like the appellants herein) were concerned, the High Court dealt with their cases separately and accordingly issued directions which are contained in condition No. 4(a) and (b) of the order.

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In condition No. 4(a) and (b), the High Court, in express terms, directed the Authority to take a decision on the question as to whether the Authority is willing to extend the benefit of the directions contained in condition No. 3(a) and (b) also to second category of landowners or not.

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In other words, the High Court, in express terms, declined to extend the grant of any relief to the landowners, who had not filed the writ petitions and instead directed the Authority to decide at their end as to whether they are willing to extend the same benefit to other similarly situated landowners or not.

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It is, therefore, clear that it was left to the discretion of the Authority to decide the question as to whether they are willing to extend the aforesaid benefits to second category of landowners or not .

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Third, as mentioned supra, the Authority, in compliance with the directions, decided to extend the benefit in relation to payment of an additional compensation at the rate of 64.70% and accordingly it was paid also. On the other hand, the Authority declined to extend the

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benefit in relation to allotment of developed abadi plot to such landowners .

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Fourth, it is not in dispute, being a matter of record, that when the Authority failed to extend the benefit regarding allotment of additional abadi plot to even those landowners in whose favour the directions were issued by the High Court in the case of Gajraj (supra) and by this Court in Savitri Devi (supra), the landowners filed the contempt petition against the Authority complaining of non-compliance of the directions of this Court but this Court dismissed the contempt petition holding therein that no case of non-compliance was made out.

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In our view, the appellants have neither any legal right and nor any factual foundation to claim the relief of allotment of additional developed abadi plot . In order to claim any mandamus against the State for claiming such relief, it is necessary for the writ petitioners to plead and prove their legal right, which should be founded on undisputed facts against the State. It is only then the mandamus can be issued against the State for the benefit of writ petitioners. Such is not the case here.

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One cannot dispute that the Act does not provide for grant of such reliefs to the landowners under the Act. Similarly, there is no dispute that the State paid all statutory compensation, which is payable under the Act, to every landowner. Not only that every landowner also got additional compensation at the rate of 64.70% over and above what was payable to them under the Act .

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The reliefs in the case of Gajraj (supra) were granted by the High Court by exercising extraordinary jurisdiction under Article 226 of the Constitution and keeping in view the peculiar facts and circumstances arising in the case at hand. They were confined only to the landowners, who had filed the writ petitions. Even this Court in Savitri Devi's case (supra) held that the directions given be not treated as precedent for being adopted to other cases

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in future and they be treated as confined to that case only .

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In our opinion, therefore, there is no case made out by the appellants for grant of any relief much less the relief of allotment of additional developed abadi plot. If we entertain the appellants' plea for granting them the relief then it would amount to passing an order contrary to this Court's directions contained in para 50 of the order passed in Savitri Devi's case (supra) ."

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(emphasis supplied)

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Thus, for all the reasons stated above, no relief can be granted to the petitioners.

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The writ petition, therefore, deserves to be dismissed and is, accordingly, dismissed.

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Date :- 28.05.2018 SK

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(Dilip Gupta, J.)

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(Neeraj Tiwari, J.)

Umraon and 12 Others v. State of U.P. and 3 Others

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Umraon and 12 Others v. State of U.P. and 3 Others

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