Dismissed

Vishwanath Kushwaha and 2 Others v. State of U.P. and 4 Others

Allahabad HC1 Feb 2023WRIC/37088/2022

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition seeking exemption of land from acquisition proceedings. The court held that claims for exemption are fatal after the conclusion of acquisition during the tenure holder's lifetime, especially when the petitioners occupied the land as trespassers post-vesting.

What did the court decide?

Dismissal of the writ petition seeking exemption of 6 Biswa of land from acquisition proceedings.

Vishwanath Kushwaha and 2 Others Vs State of U.P. and 4… — Land Acquisition | Allahabad HC (2023)

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Court No. - 39

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Case :- WRIT - C No. - 37088 of 2022

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Petitioner :- Vishwanath Kushwaha And 2 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Lal Mani Singh,Praveen Kumar Singh Counsel for Respondent :- C.S.C.,Sunil Kumar Misra

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Hon'ble Mrs. Sunita Agarwal,J. Hon'ble Vipin Chandra Dixit,J.

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Heard learned counsel for the petitioners and Sri Sunil Kumar Misra, learned counsel appears for the respondent Avas Vikas Parishad.

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The petitioners herein seek a writ of mandamus commanding the respondent no.2 to exempt 6 Biswa of land in Khasra No.29 of Village Rawatpur, Kanpur Nagar from the acquisition proceedings. The prayer in the writ petition is that a representation dated 31.10.2022 has been filed by the petitioners before the respondent no.2, namely, the Principal Secretary (Land Acquisition), which is pending consideration. The prayer is to issue a direction to decide the representation.

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The statement in the writ petition is that the ancestors of the petitioners were owner of Khata No.471 of Khasra No.29 which was acquired for Bhumi Vikas Avam Grahisthan Yojna No.1 vide notifications dated 17.2.1973 and 27.2.1980 under Sections 28 and 32 of U.P. Avas Avam Vikas Adhiniyam. The award for the amount was declared on 23.9.1986. Feeling aggrieved by the determination of compensation made by the Special Land Acquisition Officer under the award, the predecessor-in-interest of the petitioners filed Reference Petition No.257/70 of 1993 (Nanku and others Vs. State of U.P. and others) in the court of District Judge, Kanpur Nagar which came up for consideration before the competent court on 25.1.2021. While allowing the reference petition vide judgment and order dated 25.1.2021, the Reference Court had enhanced the valuation of the land and awarded compensation, accordingly.

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It is then stated that challenging the reference court award the Avas Vikas Parishad has preferred First Appeal No.133 of 2022, wherein an interim order dated 3.3.2022 has been passed by this Court directing the claimants to withdraw the amount calculated @ of Rs.45 per square yard including other admissible interest up-todate in place of Rs.55 per square yard, as awarded by the Reference Court.

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In compliance of the order passed by the first appellate court Execution Case No.21 of 2021 was filed by the petitioners before the court of Additional District Judge, Court No.12, Kanpur Nagar. It was stated before the reference court that out of the total land of the petitioners measuring 6 Bigha and 2 Biswa acquired in different Khata numbers, 5 Biswa of the land was exempted for Avasiya purposes and hence award in respect of the total land 2-70 was declared. It was further stated that the petitioners' ancestors had returned back the compensation amount in respect of Arazi of 5 Biswa which was exempted for residential purposes.

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On the basis of the calculation chart submitted before the Executing Court it is sought to be placed before us to assert that 5 Biswa of the total acquired land had been exempted by Avas Vikas Parishad and compensation for the said area has not been paid to the ancestors of the petitioners or returned by them.

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It is further stated that over 6 Biswa of Arazi No.29, the petitioners have constructed their houses and the first assessment of the said house was made on 18.4.2021. The petitioners have, thus, prayed for exemption of 6 Biswa of land in Khasra No.29 of the village in question from the acquisition proceedings. The statement made in para '14' of the writ petition indicates that the petitioners have constructed their houses in the year 2011.

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Taking note of the above facts, a query was made from the learned counsel for the petitioners as to how the 6 Biswa of Khasra No.29 of the total acquired land could be exempted when the acquisition proceedings were brought to their logical end with the declaration of the award on 23.9.1986 during the life time of the ancestors of the petitioners herein. No plausible answer could be given by the learned counsel for the petitioners. The only submission made is that since the executing court has not paid the said compensation of 6 Biswa of land and had deducted the compensation for the said area, the petitioners herein are entitled for release/exemption of the aforesaid area from the acquisition.

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We find inherent fallacy in the argument of the learned counsel for the petitioners. It is an admitted fact of the petitioners that the acquisition proceedings were concluded with the declaration of the award on 23.9.1986 during the life time of the predecessor-ininterest of the petitioners who were the original tenure holders. The original tenure holders had received compensation for the entire acquired land and filed reference for enhancement. The petitioners herein are trying to raise a new dispute on the basis of an order passed in the execution application after the determination

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made by the reference court in the judgment and order dated 25.1.2021.

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In any case, it is an admitted fact that the petitioners had constructed their houses over the land in question in the year 2011 when their possession was only that of the trespassers, in asmuch as, after conclusion of the acquisition proceedings, the original tenure holders or their heirs or legal representatives had left with no right, title or interest in the land in question, as the land had been vested with the State Government with the declaration of the award. No release or exemption, therefore, can be granted.

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As aforesaid, the prayer made in the writ petition is found misconceived. The writ petition is, thus, dismissed.

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Order Date :- 1.2.2023 Kpy

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Digitally signed by :- KAVLESHWAR PRASAD YADAV High Court of Judicature at Allahabad

Vishwanath Kushwaha and 2 Others v. State of U.P. and 4 Others

Case brief

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Vishwanath Kushwaha and 2 Others v. State of U.P. and 4 Others

Case brief

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