Ved Prakash
& Ors Vs. Ministry of Industry, Lucknow & Anr [2003] Insc 167 (12 March 2003)
Doraiswamy
Raju & Shivaraj V. Patil. Shivaraj V. Patil J.
About
496 acres of land including that of the appellants were acquired under the
provisions of the Land Acquisition Act, 1894 (for short 'the Act').
Notifications
under Sections 4 and 6 were issued for the purpose of planned development of
district Ghaziabad (now district Gautam Budh Nagar)
through NOIDA on 5.1.1991 and 7.1.1992 respectively. The appellants challenged
those notifications by filing writ petitions in the High Court which were
dismissed.
They
filed appeals by Special Leave to this Court challenging the order of the High
Court dismissing the writ petitions. This Court in Om Prakash & Anr. vs. State of U.P. & Ors.
[(1998) 6 SCC 1) disposed of those appeals giving certain directions. Although
several contentions were raised before this Court challenging the acquisition
proceedings, finally this Court has made observations and gave certain directions
in paras 31 and 32, which read as under:- "31. Now remains the moot
question as to what proper orders can be passed in the present proceedings in
the light of our findings on the aforesaid points. We have already noted that
the real and the only contention of the appellants for effectively challenging
the acquisition proceedings is that because their lands are having abadi, they
are covered by the existing State policy for not acquiring such lands under the
Act. Whether these lands are having abadi or not, is a vexed question of fact
which we have kept open for consideration of appropriate authorities instead of
relegating the appellants to the remedy under Section 5-A of the Act.
We
deem it fit to relegate the appellants to the remedy by way of suitable representation
before the appropriate State authorities under Section 48 of the Act. It reads
as under:-
"48.
Completion of acquisition not compulsory, but compensation to be awarded when
not completed
(1)
Except in the case provided for in Section 36, the Government shall be at
liberty to withdraw from the acquisition of any land of which possession has
not been taken.
(2)
Whenever the Government withdraws from any such acquisition, the Collector
shall determine the amount of compensation due for the damage suffered by the
owner in consequence of the notice or of any proceedings thereunder, and shall
pay such amount to the person interested, together with all costs reasonably
incurred by him in the prosecution of the proceedings under this Act relating
to the said land.
(3)
The provisions of Part III of this Act shall apply, so far as may be, to the
determination of the compensation payable under this Section."
As
laid down by sub-section (1) of Section 48, the Government is at liberty to
withdraw from the acquisition of any land of which possession has not been
taken. Leaned Senior Counsel for the contesting respondents submitted that
possession of these lands has already been taken. Our attention was invited to
a possession receipt annexed to the counter-affidavit filed on behalf of
Respondent 4, Secretary, New Okhla Industrial Development Authority. It is
stated in the counter that NOIDA has been put in possession of the acquired
lands from 30-3-1992 and the lands under acquisition now
form a part of Sectors 43 and 44 of NOIDA. The Secretary of New Okhla
Industrial Development Authority, Shri Rama Shankar has also earlier filed
counter-affidavit to that effect. In para 6 thereof, it is averred as under:-
"6. I further say and submit that the Hon'ble High Court of Judicature at Allahabad on 31.2.1992 passed an interim
order to the effect that there would be status quo and/or that the petitioner
would not be dispossessed from the land in dispute unless he has already been
dispossessed.
I say
and submit that a day prior to the date on which the interim order was passed,
the petitioner had already lost possession and the 4th respondent was put in
actual physical possession of the land which is the subject- matter of this
petition." Our attention was also invited to Possession Certificate at p.
202 which mentions that for the lands detailed in the certificate, possession
should be given to the Tehsildar/Administrative Officer, NOIDA on 30-3-1992. The number of lands are listed totaling to 492.91
acres wherein the appellants' khasra numbers are also mentioned. It is
difficult to appreciate as to how the Possession Certificate for all these
number of lands would necessarily include actual taking over of all the number
of lands on which there were constructions on the spot at the relevant time. It
is also pertinent to note that the Possession Certificate is dated 30-3-1992 and the High Court of Allahabad granted status quo
order on the next day, i.e., 31.3.1992. It, therefore, appears to us that so
far as the appellants' lands are concerned, only an effort was made to take
paper possession on 30.3.1992 and actual possession does not seem to have been
taken. No possession receipt signed by any of the appellants could be produced
to substantiate that contention. Not only that, as noted earlier, the evidence
on record showed that even pending the writ petition, the site inspection
report of 11.3.1996 showed that some of the lands in question were actually
occupied by residents and the lands were constructed upon and a factory was
being run. Consequently, it is not possible to agree with the submission of
learned Senior Counsel for the respondents that the possession of the acquired
lands belonging to the appellants was actually taken on the spot on 30.3.1992.
It is not in dispute that status quo order granted by the High Court continued
all throughout till the dismissal of the writ petition. It was then contended
that before this Court could grant any interim relief, possession appeared to
have been taken of these lands at least on 18.11.1995.
Our
attention was invited to the authority letter written by one Shri Chandra Pal
Singh, Additional District Magistrate, Land Acquisition, NOIDA, Ghaziabad that possession should be given on
18.11.1995. It is obviously after the decision of the High Court dated
24.8.1995. However, it must be noted that this Court by order dated 29.9.1995
had already granted ad interim stay limited to the extent that any existing
construction should not be demolished without leave of the Court and that order
has continued all throughout till the hearing of the present appeals. It is,
therefore, difficult to appreciate as to how despite the order of this Court,
possession of the present appellants' lands could have been taken on
18.11.1995. However, Shri Mohta, learned Senior Counsel for NOIDA, submitted
that this Court order was only not to demolish the construction and has nothing
to do with taking possession.
It is
difficult to appreciate this submission. If the constructions on the disputed
lands under acquisition were not to be disturbed, how could it be contended
that still the possession of the constructions was with NOIDA and that they
would not demolish the construction having taken their possession? Even that
apart, the authority letter dated 18.11.1995 itself shows the details of lands
possession of which was given to NOIDA and the land of Survey
No. 488 is not one of
them. For all these reasons, therefore, it must be held that possession of the
lands under acquisition belonging to the present appellants has remained with
the appellants till date. Once that conclusion is reached, Section 48 sub-
section (1) can be legitimately invoked by the appellants for consideration of
the State authorities. It is, of course, true that the said provision gives
liberty to the State to withdraw from acquisition of any land but if the
appellants are in a position to convince the State authorities that their lands
were having abadi on the date on which Section 4 notification was issued on
5.1.1991 and it was that abadi which had continued without any additional
construction thereon till the date of Section 6 notification and thereafter and
such abadi was squarely covered by the State policy of not acquiring lands
having abadi, then it will be open to the State authorities to pass appropriate
orders for withdrawing such lands from acquisition and give appropriate relief
to the applicants concerned. We, therefore, grant liberty to the appellants, if
so advised to file written representations before appropriate authorities of
the State of Uttar
Pradesh invoking the
State Government's powers under Section 48 sub-section (1) of the Act. It is
made clear that we express no opinion on the question whether the appellants'
lands had such abadi on the date of Section 4 notification which would attract
the State policy of not acquiring such lands and whether such policy had
continued thereafter at the stage of Section 6 notification of 7.1.1992 and
whether such policy is still current and operative at the time when the appellants'
representations come up for consideration of appropriate authorities of the
State Government. It will be for the State authorities to take their informed
decision in this connection.
We may
not be understood to have stated anything on this aspect nor are we suggesting
that the State must release these lands from acquisition if the State
authorities are not satisfied about the merits of the representations.
The
State authorities will have to be satisfied on the following aspects in this
connection:-
(i)
Whether there was any abadi on the acquired lands at the time of Section 4(1)
notification;
(ii)
Whether such abadi was a legally permissible abadi;
(iii)Whether
such abadi has continued to exist till the date of representation;
(iv)
Whether such abadi was covered by any government policy in force at the time of
issuance of Section 4(1) notification and/or Section 6 notification for not
acquiring lands having such abadi;
(v)
Whether such government policy has continued to be in force till the date of representation.
32. In
short, the entire matter is left at large for the consideration of the State
authorities in the appellants' representations. We also make it clear that if
the appellants file their written representations to the aforesaid effect on or
before 31.8.1998, then the appropriate authorities of the State Government
shall consider their representations regarding the feasibility of releasing
such lands from acquisition under Section 48(1) of the Act on the ground that
there were "abadis" on these lands at the relevant time and are
governed by any existing State policy for releasing such lands from acquisition
on that score as indicated hereinabove and for that purpose they may give a
hearing to the appellants, either personally or through their counsel, and
permit them to lead whatever evidence they want to lead in this connection. The
State authorities shall consider these written representations within a period
of two months from the date such representations are received, i.e., latest by
31.10.1998 and will take appropriate decisions on these representations and
will inform the representationists concerned in writing about the decision of
the State Government in this connection." [emphasis supplied] Pursuant to
the said directions, the appellants made representations before the State
Government. The Authority, after considering their representations, rejected
the same by order dated 3.12.1999. Hence, the appellants approached the High
Court for the second time by filing the writ petitions challenging the order of
authorities dated 3.12.1999. The Division Bench of the High Court, after
considering the contentions raised, dismissed the writ petitions on 25.2.2000.
Hence,
the appellants have approached this Court by filing these appeals questioning
the validity and correctness of the order dated 25.2.2000 made by the High
Court in the writ petitions upholding the order dated 3.12.1999 passed by the
Authority.
It is
appropriate to recapitulate the substance of the directions given and the
observations made as can be gathered from paragraphs 31 and 32 extracted above.
This
Court noticed that the real and only contention of the appellants for
effectively challenging the acquisition proceedings was that their lands having
abadi could not be acquired as per the existing policy for not acquiring such
lands; whether those lands are having abadi or not is a vexed question of
facts, which is left open for consideration of appropriate authorities; instead
of relegating the appellants to the remedy under Section 5-A of the Act it was
deemed fit to relegate the appellants to the remedy by way of suitable
representation before the appropriate State authorities under Section 48 of the
Act. There was some dispute as to taking of possession of the lands by the authorities
in the context that under Section 48(1) the Government is at liberty to
withdraw from the acquisition of any land of which possession has not been
taken. On examination of rival contentions on this point this Court held that
the possession of the lands under acquisition belonging to the appellants had
remained with them. Hence Section 48(1) of the Act could be legitimately
invoked by the appellants for consideration of the State authorities; it is
true that the said provision gives liberty to the State to withdraw from
acquisition of any land but if the appellants are in a position to convince the
State authorities that their lands were having abadi on the date on which
Section 4 notification was issued on 5.1.1991 and it was that abadi which had
continued without any additional construction thereon till the date of second
notification and that such abadi was squarely covered by the State policy of
not acquiring lands having abadi, then it will be open to the State authorities
to pass appropriate orders for withdrawing such lands from acquisition and give
appropriate relief to the applicants concerned; liberty was given to the
appellants to file representations before the appropriate authorities under
Section 48(1) of the Act;
it is
made clear that this Court did express no opinion on the question whether the
appellants' lands had such abadi on the date of Section 4 notification, which
was attracted the State policy of not acquiring such lands and whether such
policy had continued thereafter at the stage of Section 6 notification on
7.1.1992 and whether such policy was still current and operative at the time
when appellants' representations came up for consideration. It would be for the
State authorities to take their informed decision in that connection.
This
Court also made it clear that it may not be understood that anything stated on
this aspect nor any suggestion was made that the State must release these lands
from acquisition if the State authorities are not satisfied about the merits of
the representations. The State authorities will have to be satisfied in that
regard on five aspects stated in paragraph 31 above.
In
paragraph 32 it is further stated that the entire matter is left at large for
the consideration of the State authorities on the appellants' representations.
It is
made clear that the State Government shall consider the representations as to
feasibility of releasing such lands from acquisition under Section 48(1) of the
Act on the ground that there were abadis on these lands at the relevant time
and are governed by any existing State policy for releasing such lands from
acquisition on that score. In para 11 of the judgment, the following points
were raised for determination:-
"1.
Whether the State authorities were justified in invoking Section 17(4) of the
Act for dispensing with inquiry under Section 5-A of the Act.
2. In
any case, whether the appellants' lands have to be treated as immune from
acquisition proceedings on the ground that they were having abadi thereon and
were, therefore, governed by the policy decision of the State of U.P. not to acquire such lands.
3.
Whether this Court should refuse to exercise its discretionary jurisdiction
under Article 136 of the Constitution of India in the facts and circumstances
of the case.
4.
What final orders." The first point was answered in the negative, in favour
of the appellants and against the contesting respondents. Point No. 2 was kept
open for consideration of the proper State authorities, as indicated while
considering points 3 and 4. Point No. 3 was answered in the affirmative against
the appellants and in favour of the respondents refusing to exercise
discretionary jurisdiction under Argicle 136 of the Constitution of India for
interfering in the proceedings with the impugned notifications. Dealing with
point No. 4 directions were given and observations were made as stated in
paragraphs 31 and 32 of the judgment.
Shri Shanti
Bhushan, learned Senior Counsel appearing for the appellants in Civil Appeal
Nos. 999- 1001/2001 and 1004/2001 and Contempt Petition Nos. 274/1991 and
281/1991, specifically drew our attention to the discussion and conclusion of
point no. 1. To emphasize that acquisition proceedings were otherwise bad, but
only in order not to disturb the scheme for the purpose of which large area was
acquired, the directions as contained in para 31 were given. He further urged
that the High Court committed an error in upholding the order dated 3.12.1999,
issued by the Secretary, Ministry of Industries, Government of Uttar Pradesh,
who did not follow the specific directions of this Court; the High Court
committed an error in passing the common judgment in number of writ petitions
without discussing the individual cases on merits as the Secretary, Ministry of
Industries had also committed the similar mistake in not deciding the cases
individually on their own merits in spite of specific directions given by this
Court in Om Prakash case (supra), and the order dated 6.9.1999 in Contempt
Petition filed by I.M. Dawar and connected special leave petitions. The
impugned judgment cannot be sustained in view of the fact that when there was a
specific Government policy as is evident from the letter dated 8.8.1997 that at
the time of acquisition of any area the village abadi be left out from
acquisition and if acquisition is very urgent, in that case equal development
area of the acquired land shall be given to the owners of the land, whose land
was sought to be acquired. He added that the order dated 3.12.1999, passed by
the Authority, was violative of Article 14 of the Constitution of India being
arbitrary and discriminatory in view of policy of the Government of U.P. that
no abadi land will be acquired. The High Court also failed to correct the said
order. The spot inspection report made by the team of the officers of the
Revenue Board clearly established that abadi existed at the lands of the
appellants. He took us through the relevant documents placed on record in
support of his submissions. The other learned counsel, appearing in other
appeals, while adopting the arguments made by Shri Shanti Bhushan, made few
more submissions in relation to facts of their respective cases.
On the
other hand, Shri Rakesh Dwivedi, learned counsel representing Respondent No. 2
(NOIDA Authority) made submissions in support and justification of the impugned
order. He urged that the Secretary, Ministry of Industries scrupulously and
correctly followed the directions given by this Court in considering the
representations made by the appellants and after recording finding of fact and
after considering the feasibility of releasing the lands from acquisition under
Section 48(1) rejected the representations.
There
has been a detailed consideration of every one of the contentions urged on
behalf of the appellants in the light of the material that was available on
record.
According
to the learned senior counsel the High Court was right and perfectly justified
in not interfering with the finding of fact recorded by the Authority in
dealing with their representations; the High Court on consideration of the
contentions, urged on behalf of the appellants, by a considered order, upheld
the order of the Authority and rightly so.
We
have carefully considered the respective contentions. In the impugned judgment,
the High Court at the outset before taking up the rival contentions for
consideration held that the administrative authority passing the impugned order
dated 3.12.1999 could not be expected to discuss each and every piece of
evidence threadbare as is required in a trial before the judicial court; what
is to be ascertained is as to whether in passing the impugned order, the
material and evidence on record had been considered to arrive at the conclusion
while complying with the directions of this Court. Keeping this in view, the
High Court found that the authority had recorded a finding on each and every
aspect required to be considered as per the directions given by this Court.
Dealing with the contention of non-consideration of decrees of the civil suits
in respect of certain lands as being abadi earlier to passing of the
notifications under Sections 4 and 6 of the Act, the High Court noticed that
this Court itself in the aforementioned judgment observed that civil court
litigation could not bind the State authority as the State of U.P. was not a
party to those proceedings.
The
High Court found that there was no force in the conclusion that the appellants
were not given opportunity of hearing on the ground that the perusal of the
order passed by the authority shows that the opportunity of hearing was given
and hearing took place on 4.11.1999 when the appellants were represented
through their counsel and the evidence placed on record was also considered.
The High Court also took the view that consideration of all the representations
of the appellants by the authority and passing of common order did not suffer
from any defect or infirmity because the entire material and evidence placed
before it had been considered before passing the impugned order. The High Court
also rejected the contention that the spot inspection was made ex-parte by the
party concerned observing that it was clear from paragraph 9 of the impugned
order dated 3.12.1999 that the spot inspection was made after due notice to the
appellants; two of them namely Veer Singh and Jai Singh were present also at
the time of spot inspection while others abstained for the reasons best known
to them. Touching the question relating to existence of abadi, and the Govt.
policy regarding acquisition of such land, the High Court observed thus:
"Accepting
the case of the petitioners that even before the Notifications under Section 4
and 6 of the Land Acquisition Act there was some stray Abadi in the plots of
the petitioners at scattered points in the vast area of acquired land, it could
not inhere in them a right to get their land released from acquisition. It may
be pointed out that as per Section 3(a) of the Land Acquisition Act, the term
'land' even includes building and super structures.
Needless
to say, 'building' is a thing permanently attached to the earth.
Therefore,
the State Government has right to acquire the land of the petitioners in spite
of there being Abadi at some points. Actually it was for the reason that their
land had been found to be in their possession that Section 48 of the Land
Acquisition Act was held to be applicable and the Supreme Court gave them
opportunity to make representations to the State Government for releasing their
land from acquisition. But the apex Court made it clear that the entire matter
was left at large for consideration of the State Authority. It was directed
that in case of the appellants (petitioners) filed written representations, the
appropriate authorities of the State Government were to consider the same
regarding feasibility of releasing such land from acquisition under Section
48(1) of the Land Acquisition Act on the ground that there were Abadis on these
lands at the relevant time and were governed by any State policy in force at
the time of issuance of notifications under Section 4 and 6 for not acquiring
the lands having such Abadi and the same had continued to be in force till the
date of the representation. It should be pointed out that large area of land
including the land of the petitioners had been acquired for the public purpose
of planned development of District Ghaziabad (now District Gautam Buddha Nagar).
Obviously, such public purpose was to be frustrated if the stray and scattered
land of the petitioners comprised in the acquired huge area was to be released
from acquisition. ` As for the Government policy to release such Abadi land
from acquisition, reliance has been placed from the side of petitioners on a
letter dated 08.08.1997 issued by the Board of Revenue to all the Commissioners
and District Magistrates of the State (Part of the representation Annexure-2 to
the writ petition No. 7561 of 2000). The said letter dated 08.08.1997 directs
that at the time of acquisition of any area, the village Abadi be left out from
acquisition. Obviously, it is of much recent origin having nothing to do at the
time when the notifications under Section 4 and 6 of the Land Acquisition Act
were issued in respect of the land in question on 05.01.1991 and 07.01.1992
respectively.
The
crux flowing from the impugned order dated 03.12.1999 is that the
representations of the petitioners did not command themselves to the State
Government for acceptance as there was no Government policy at the time of
issuance of notifications under Section 4 and 6 of the Land Acquisition Act on
05.01.1991 and 07.01.1992 respectively in respect of the disputed land, not to
acquire land comprising some Abadi which might have continued till the time of
the making of representations by the petitioners." The High Court also
observed that the other ground for rejection of representation by the Authority
was that the release from the acquisition the lands of the appellants would
frustrate the very public purpose for which the acquisition was made; in other
words, it was not feasible to release lands from acquisition and that there was
substantial compliance of the directions given by this Court. After discussion
and in the light of observation made in the impugned judgment, the High Court
found that the impugned order dated 3.12.1999 passed by the competent authority
rejecting representations of the appellant on a detailed consideration and
supported by sustainable reasons was right and justified. It is further stated
in the impugned order that when the State Government after giving full
opportunity of hearing to the appellants and after consideration of the entire
material and evidence has chosen not to release their lands from acquisition
under Section 48(1) of the Act, no fault can be found with the same.
In the
light of the comments made on the order dated 3.12.1999, passed by the
competent officer rejecting the representations of the appellants that the
competent authority did not follow the directions given by this Court; the
order passed was arbitrary and unfair and that the material placed before the
authority was not properly considered; proper opportunity was not given and
relied on the spot inspection report made ex-parte, we think it is appropriate
to look to the very order to find out whether the comments and criticism made
on the said order is justified or not. In the said order it is clearly stated
that pursuant to the orders dated 15.7.1998 and 6.9.1999, made by this Court,
the appellants were heard on 4.11.1999 in the meeting hall of Noida; the
appellants were represented by their counsel; at the hearing officers of Noida
and officers of District Administration were also present; reference is made in
the matter to the directions given by this Court in the judgment dated
15.7.1998, as contained in paragraph 31 of the judgment. The order also shows
reference to and consideration of evidence placed before the authority. It is
also noticed in the order that the SDM, Dadri informed that according to
Revenue records that among the disputed plots of land many plots such as
261(min), 262(min), 256, 260, 263 and 293 were purchased by persons from
outside (not original villagers) during the crop years 1391 to 1393 (1984-
1986) and afterwards and demand to release the lands from acquisition has been
made by them. Among them most of the persons not being villagers are residents
of other cities such as Meerut, Ludhiana, Jammu, New Delhi, Chandigarh, Nasik, Amritsar
and other cities.
The
above-mentioned survey numbers have been purchased by these persons as
agricultural land on the basis of addresses in the other cities. These very
addresses are recorded in the Revenue records also. It is also stated in the
impugned order that after hearing the arguments and perusing the evidence the
parties were asked by the Authority to be present at the spot and explain the
position. The Authority inspected the spot along with persons from the District
Administration and officers of Noida. Among the appellants Veer Singh and Jai
Singh were present. No other landowner came to the spot. On the spot only small
5-7 years old constructions were found. Seeing the constructions it was felt
that the constructions were scattered on plots of land and no abadi of village
was present there. It is also noticed that even the constructions found in the
scattered position appear to have been made after issuing Sections 4 and 6
notifications. It is also observed that the constructions were made without
permission of the Competent Authority. There is a detailed discussion in
respect of each one of the five aspects mentioned in paragraph 31 of the judgment
of this Court in Om Prakash case, with reference to the material placed on
record. It is noticed that the disputed plot numbers are situated up to far
away places on the lands attached with the village, leaving which the
acquisition proposal could not have been prepared by the authority because
these khasras numbers are in between other numbers in the sector plan.
Dealing
with these aspects it is stated thus: - "The policy of U.P. administration
in only not to unnecessarily acquire the abadis of the village. The original abadi
land of the village has not been acquired by the authority. This inference has
been put up that out of the disputed khasra Nos. in many Khasra Nos. i.e. 262
Min, 256 min, 260, 263 and 293 the land has been purchased by many persons from
out side during crop year 1391 to 1393 and are demanding for denotification of
land before the honourable court. Among them most persons are not original
residents of the village. They are residents of Meerut, Ludhiana,
Jammu-Kashmir, New Delhi, Chandigarh, Nasik and Amritsar, etc.
Above
mentioned khasra Nos. have been purchased as agricultural land. Those people by
whom the land has been purchased are not original residents of Noida and are
outsiders such persons have purchased the lands on the very basis of their
outside addresses and the same basis the entries in the land records (khatoni)
exist. The entry made in the land record and on 17-9-88 sale for khasra No.
290, between Shri Sukhbir Singh S/o Shri Bhikan Singh Resident of Village and Smt.
Sudarshan Kathuria W/o Shri Prem Lal Kathuria resident of 6/133 Geeta Palli,
New Delhi has been executed and it is clear from this that this was agriculture
land there was no construction on it and possession of vacant plot was
transferred to the purchaser and it has also been shown in this sale deed that
there is no construction in it and whenever the purchaser is to construct any
building on it the same would be done under the rules made by Competent
Officer.
This
argument has been put forward by the petitioners that no arrangement
(consolidation) of abadi land has been done after the year 1930 and abadi on
the land, room, boundary is since 1973, and this has also been said that by
leaving out the land no plan of Noida is effected. This argument was put up by Noida
that all these khasra Nos. have been sold and purchased afterwards and all
constructions are after sending proposal for Section 4/17. This was also said
by Noida that the land in question is pent of sector 44 and that development
work has been done on all sides of it, so by leaving out such land will
adversely effect planned development of Noida." In para 11 of the order
the Competent Authority has concluded thus: - "11. The contending parties
were heard. All records concerned with this matter were studied. The
information given by District Magistrate Gautam Budh Nagar and after spot
inspection, I have arrived at the conclusion that at present abadi has not been
found on the disputed land and so question of existence of abadi at time of
section 4/17 and 6/17 on the disputed land does not arise. The constructions
that have been found in scattered position has been done after issuance of
section 4/17 and 6/17 notifications and for this purpose no permission has been
obtained from Noida and the construction is not legal. Denotification of land
from acquisition will adversely effect the planned development of Noida, the
disputed khasra Nos. full in sector-44 and the land near these has been
developed by Noida. The internal development plans of this area such as sewer,
drainage, roads, park, community spot will be adversely effected on leaving out
these khasra Nos. So in this condition denotification of these plots under
section 48(1) of Land Acquisition Act is not possible." Pursuant to the
order dated 20th September, 1999 passed by this Court in Contempt Petition (C)
No.274 and 281 of 1999 (in S.L.P.(C) No. 6036/99), an Officer of this Court
went to the spot on 30th September, 1999 after issuing notice to the parties
and conducted survey in Khasra No. 242 situated at village Chalera Bangar and
made a detailed report along with the map and photographs. It was submitted on
behalf of the petitioners in Contempt Petition (C) No. 274/1999 that 1/4th of
the land in Khasra No. 242 does not belong to them and the same is not in
dispute and as such the existing structures on this 1/4th of the land may not
be required to be identified.
The
land in Khasra No. 242 has been divided into two parts for the purpose of
survey of existing structures i.e. 3/4th of the land (L shapped) marked as
Portion A and 1/4th of the land not in dispute is marked as Portion B on the
map. The structures found in 3/4th of the land marked as Portion A on the map
are shown in details and the corresponding photographs also are annexed to the
survey report. As can be seen from this survey report, boongas (for storing
fodder), bitooras (for storing dung cakes), thatched huts with wooden pillars
and some with side walls of bricks are existing in Portion A of the map
occupying small areas and are scattered. There were also broken boundary walls
of bricks without foundation and there were broken walls perhaps of rooms of
small measurements. The conclusion of the survey report reads:- "Existing
structures on the entire land of Khasra No. 242, village Chalera Bangar, NOIDA,
District Gautam Budh Nagar, U.P. as on 30.9.1999:- 3/4th land 1/4th land
(Portion A) (Portion B) Boongas 5 3 Bitooras 27 9 Thatched Huts 3 106/32 Devasthan
3 - Thatched Cattle-sheds - 3 Khor in cattle-sheds - 2 Well 1 - Handpump with Electric
motor 1 - Fenced Area At 4 places - Broken boundaries/ Walls with scattered
Bricks. No complete Structure exists there At 8 places - Heap of stone-dust At
1 place - Heap of stones At 2 places Stacks of New bricks At 2 places The
survey of the existing structures entrusted to me had been completed with the
cooperation of all concerned around 2.30 p.m. on 30th September, 1999.
As
directed, the above survey report alongwith map and photographs of Khasra No.
242 is submitted for kind perusal of the Hon'ble Court." Now we notice the
relevant provisions of statutes in the light of the submissions made on either
side.
The
relevant portions in the Uttar Pradesh Industrial Area Development Act, 1976
(for short `the 1976 Act') read as under:- "An Act to provide for the
constitution of an Authority for the development of certain areas in the State
into industrial and urban township and for matters connected therewith."
"2 Definitions (a) to (c).........................
(d)
"Industrial development area" means an area declared as such by the
State Government by notification;
(e)
"Occupier" means a person (including a firm or body of individuals
whether incorporated or not) who occupies a site or building within the
industrial development area and includes his successors and assigns;
(f)
"transferee" means a person (including a firm or other body of
individuals, whether incorporated or not) to whom any land or building is
transferred in any manner whatsoever, under this Act and includes his
successors and assigns;"
"6.
Functions of the Authority (1) The object of the Authority shall be to secure
the planned development of the industrial development areas.
(2)
Without prejudice to the generality of the objects of the Authority, the
Authority shall perform the following functions:-
(a) to
acquire land in the industrial development area, by agreement or through
proceedings under the Land Acquisition Act, 1894 for the purposes of this Act;
(b) to
prepare a plan for the development of the industrial development area;
(c) to
demarcate and develop sites for industrial, commercial and residential purposes
according to the plan;
(d) to
provide infrastructure for industrial, commercial and residential purposes;
(e) to
provide amenities;
(f) to
allocate and transfer either by way of sale or lease or otherwise plots of land
for industrial, commercial or residential purposes;
(g) to
regulate the erection of buildings and setting up of industries; and (h) to lay
down the purpose for which a particular site or plot of land shall be used,
namely for industrial or commercial or residential purpose or any other
specified purpose in such area." "8. Power of issue directions in
respect of erection of building (1) For the purposes of proper planning and
development of the industrial development area, the Authority may issue such
direction as it may consider necessary, regarding –
(a)
........................
(b) the
alignment of buildings on any site,
(c) the
restrictions and conditions in regard to open spaces to be maintained in and
around buildings and height and character of buildings;
(d) the
number of residential buildings that may be erected on any site" "9.
Ban on erection of buildings in contravention of regulations
(1) No
person shall erect or occupy any building in the industrial development area in
contravention of any building regulation made under sub-section (2).
(2)
The Authority may by notification and with the prior approval of the State
Government make regulations to regulate the erection of buildings and such
regulations may provide for all or any of the following matters, namely
(a)
........................
(b)
lay out plan of the building whether industrial, commercial or residential;
(c)
the height and slope of the roofs and floors of any building which is intended
to be used for residential or cooking purposes;"
"10.
Power to require proper maintenance of site or building If it appears to the
Authority that the condition or use of any site or building is prejudicially
affecting or is likely to affect the proper planning of, or the amenities in
any part of the industrial development area or the interests of the general
public there, it may serve on the transferee or occupier of that site or
building a notice requiring him to take such steps and within such period as
may be specified in the notice and thereafter to maintain it in such manner as
may be specified therein and in case such transferee or occupier fails to take
such steps or to maintain it thereafter the Authority may itself take such
steps or maintain it, and realize the cost incurred on it from such transferee
or occupier."
"17.
Overriding effect of the Act Upon any area being declared an industrial
development area under the provisions of this Act, such are, if included in the
master plan or the zonal development plan under the Uttar Pradesh Urban
Planning and Development act, 1973, or any other development plan under any
other Uttar Pradesh Act, with effect from the date of such declaration be
deemed to be excluded from any such plan."
"19.
Power to make regulations
(1)
The authority may with the previous approval of the State Government, make
regulation not inconsistent with the provisions of this Act or the rules made thereunder
for the administration of the affairs of the Authority.
(2) In
particular, and without prejudice to the generality of the foregoing power,
such regulation may provide for all or any of the following matters namely, -
(a)
the summoning and holding of meetings of the Authority the time and place where
such meetings are to be held, the conduct of business at such meetings, and the
number of members necessary to form a quorum thereat;
(b) the
powers and duties of the Chief Executive Officer;
(c) the
form of register of application for permission to erect a building;
(d) the
management of properties of the Authority;
(e) fees
to be levied in the discharge of its functions;
(f) such
other matters as are to be provided for in regulation."
Regulation
(4) of Building Regulations reads:-
"4.
Building permit required No person shall erect any building without obtaining a
prior building permit thereof, from the Chief Executive Officer in the manner
hereinafter provided." A Notification was published in the Gazette No.
4157HI/XVIII-11 dated 17th
April, 1976 in
exercise of powers in clause (d) of Section 2 read with Section 3 of the 1976
Act declaring the area comprising the villages mentioned in the Schedule
annexed as an industrial area to be called the "New Okhla Industrial
Development Area". In the Schedule, the village Chalera Bangar is found at
Sr. no. 16 included in the said industrial area.
The
relevant provisions contained in the United Provinces Village Abadi Act, 1948
(for short `the 1948 Act')read:- "Preamble :- Whereas it is expedient to
regulate in certain respects the relations between landlords and house- owners
in village abadis in the United Provinces;
It is
hereby enacted as follows:
(1)
......................
(2)
Interpretation and definitions –
In
this Act, unless there is something repugnant in the subject or context-
(1)
"village abadi" means any land in a village which is or, but for an
error or omission, would have been recorded as such in the revenue records.
(2)
"Landlord" means the proprietor of the land constituting the village abadi
and includes a sub- proprietor or under-proprietor thereof.
(3)
"House owner" means a person, not being the landlord, who owns a
house in a village abadi.
(3)
Presumption regarding existing houses All houses built in a village abadi and
existing on the 15th day of August, 1947, shall unless the contrary is proved,
be presumed to have been built with the consent of the landlord.
(4)
House owner's right of user Notwithstanding any custom or usage to the contrary
in any village, a house owner may
(a) convert
his kachcha house into pucca, and
(b) make
such construction in the sahan darwaza, or land appurtenant to such house as
may be necessary for agricultural or domestic purposes,
(c) rebuild
or renovate his house whether kachcha or pucca or both, subject to any other
law for the time being in force."
The
relevant provisions of the U.P. Land Revenue Act, 1901, (for short `the 1901
Act') read:- "28. Maintenance of map and field- book The Collector shall,
in accordance with rules made under Section 234, maintain a map and field-book
of each village in his district, and shall cause annually, or at such longer
intervals as the State Government may prescribe, to be recorded therein all
changes in the boundaries of each village of field and shall correct any errors
which are shown to have been made in such map or field-book.
32.
Record-of-rights There shall be a record-of-rights for each village subject to
such exception as may be prescribed by rules made under the provisions of
Section 234. The record- of-rights shall consist of a register of all persons
cultivating or otherwise occupying land specifying the particulars required by
Section 35.
33.
The annual register (1) The Collector shall maintain the record-of- rights and
for that purpose shall annually, or at such longer intervals as the State
Government may prescribe, cause to be prepared an amendment register mentioned
in Section 32.
(2) to
(8) ........................."
"52.
Record to be prepared in re-survey When any local area is under survey
operations, the Record Officer shall prepare for each village therein a map and
field-book; which shall thereafter be maintained by the Collector as provided
by Section 28 instead of the map and field-book previously existing."
"54.
Revision of map and records
(1) For
revising the map and records under this Chapter, the Record Officer shall
subject provisions hereinafter contained, cause to be carried out survey, map
correction, field to field Partal and test and verification of current annual
register in accordance with the procedure prescribed.
(2)
After the test and verification of the current annual register in accordance
with sub-section (1), the Naib-Tahsildar shall correct clerical mistakes and
errors, if any in such register, and shall cause to be issued to the concerned
tenure-holder and other person interested, notices containing relevant extracts
from the current annual register and such other records as may be prescribed,
showing their rights and liabilities in relation to land and mistakes and
disputes discovered during the operations mentioned in the said
sub-section." It is no doubt true that conclusion on point no. 1 raised in
paragraph 11 of the judgment in the case of Om Prakash (supra) was recorded
against the State but ultimately effective and operative order is to be seen in
paras 31 and 32 of the said judgment. The ultimate direction was to consider
the representations of the appellants for releasing the lands from acquisition
under Section 48(1) of the Act on being satisfied of the five aspects mentioned
in para 31 of the judgment.
It is
also made clear in the said paragraph that this Court did not express any
opinion on the question whether the appellants' lands had such Abadi on the
date of Section 4 of Notification which would attract the State policy of not
acquiring such lands and whether such policy had continued thereafter at the
stage of Section 6 notification of 7.1.1992 and whether such policy was still
current and operative at the time when the appellants' representations came up
for consideration of appropriate authorities of the State Government. It is
further stated that it will be for the State authorities to take the informed
decision in this connection. In the same paragraph, it is stated that "we
may not be understood to have stated anything on this aspect nor are we
suggesting that the State must release these lands from acquisition if the
State authorities are not satisfied about the merits of the
representations". This Court went on to say in paragraph 32 that the
entire matter is left at large for the consideration of the State authorities
on the appellants' representations. It is further stated that if the
representations were made within the given time, then the appropriate authority
of the State Government shall consider their representations regarding the
feasibility of releasing of such lands from acquisition under Section 48(1) of
the Act on the ground that there were "abadis" on these lands at the
relevant time and are governed by any existing State policy for releasing such
lands from acquisition.
Thus,
it is clear that it was open to the State authorities to consider regarding the
feasibility of releasing such lands from acquisition under Section 48(1) of the
Act after taking into consideration the observations made and directions given
in paras 31 and 32 as aforementioned. We have already noticed above that the
Competent Authority of the State gave hearing to the appellants, considered the
evidence and material placed on record and examined the contentions raised on
behalf of the parties in compliance with the directions given and observations
made in paras 31 and 32 of the judgment of this Court. The State Authority came
to the conclusion for the reasons already stated above that having regard to
various aspects including development scheme, it was found not feasible to
release the lands of the appellants under Section 48(1) of the Act. The High
Court did not find any good ground to disagree with the findings of fact
recorded by the State Authority and also found that the State authorities duly
considered the directions given and observations made by this Court as
contained in paras 31 and 32 of the judgment.
The
1976 Act provides for the constitution of an authority for the development of
certain areas in the State. A notification was published in the Gazette dated
17.4.1976 under the Act declaring the area comprising the villages mentioned in
the Schedule called the "New Okhla Industrial Development Area".
The
village Chalera Bangar is one of the villages included in the Schedule and the
lands in question are in the same village. The function of the authority under
Section 6 of the Act is to acquire the land in the notified area by the
agreement or through the proceedings under the Land Acquisition Act, to prepare
a plan for the development of the industrial area, to provide infrastructure
for industrial, commercial and residential purposes, to regulate the erection
of buildings and setting up of the industries and to lay down the purpose for
which a particular site or plot of land shall be used namely, for industrial,
commercial or residential or for any other specified purpose in such area.
Section 8 authorises the authority to issue directions such as the alignment of
buildings on any site, the restrictions and conditions in regard to open spaces
to be maintained in and around buildings and height and character of buildings
and the number of residential buildings that may be erected on any site.
Section
9 imposes a ban on erection of buildings in contravention of regulations. As is
evident from this Section, no person could erect or occupy any building in the
industrial development area in contravention of any building regulation made
under the Act. Regulation 4 of Building Regulations shows that no person shall
erect any building without obtaining a prior building permit thereof from the
Chief Executive Officer in the manner provided.
There
is no material to show that the constructions and structures said to be
existing in the Abadi area were existing prior to the Notification issued on
17.4.1976 as no village map or other documents show the same in the large area
of Abadi claimed by the appellants. Certain provisions of the U.P. Land Revenue
Act are already extracted above.
Looking
to the said provisions, it is clear that field books, maps, record of rights
and annual register had to be maintained. There could be resurvey and revision
of map and records. The argument was advanced on behalf of the appellants that Abadi
existing long back could not continue to be the same; over the years when
families grew, population increased, necessarily corresponding abadi area also
increased; new constructions and structures came up. If that be so then the
same thing could have been reflected in the records and the map maintained
under the 1901 Act.
Similarly,
it is not shown that such structures or constructions were put up with the
permission as required under the provisions of the Act and the Regulations.
Section 10 of the Act even provides for ordering proper maintenance of site or building
if it appears to the authority that the condition or use of any site or
building is prejudicially affecting or is likely to affect the proper planning
or the maintenance in any part of the industrial development area or the
interest of the general public thereto requires that the Authority could direct
the transferee or occupier of the site or building to take steps within the
period specified to maintain a site or building in such manner as may be
specified. When the large area of about 496 acres of land was acquired for
planned development of industrial area called New Okhla Industrial Development
Area and the object and purpose of the Act is sought to be achieved as provided
in the Act, the authority has power to acquire the lands and to give necessary
direction or take steps to maintain and regulate the sites and buildings in the
area. The State Authority having elaborately considered the evidence available
on record found that the claims of the appellants as to Abadi is spread over in
a scattered manner in a large area apart from being whether that was an Abadi
or not and whether it was existing prior to the issue of Notification in 1976.
Having regard to all aspects, the authority found that it was not feasible to
release the lands of the appellants from acquisition under Section 48(1) of the
Act. As is evident even from the survey report that boongas, bitooras, thatched
huts, thatched sheds etc. occupied a small area but were spread over to a long
distance. The photographs show that large area is open land even in the
so-called Abadi area, so an individual assuming could claim some area as abadi
that could be a small area appurtenant to his residential house or a farm house
or any cattle shed etc. but the appellants claim for large area covering few
acres of land as abadi, is untenable. All the more so, when it could not be
legitimately claimed or asserted that they were regularly living in those
structures of very kachcha type. The nature of the construction, their age from
its appearance, etc., give an impression that they were hurriedly planted at
later dates only to circumvent the land acquisition proceedings.
As
already stated above, the Competent Authority in compliance with the directions
given by this Court in Om Prakash case, in the light of observations made
therein having considered the evidence placed on record and after hearing the
parties, recorded findings and held that it was not feasible to release the
lands of the appellants from acquisition. From the impugned judgment of the High
Court it is clear that the High Court kept in view the scope and judicial
review in dealing with the impugned order dated 3.12.1999, passed by the
Competent Authority. In Commissioner of Income Tax, Bombay and others vs. Mahindra
and Mahindra Limited and others [(1983) 4 SCC 392], this Court, while stating
that by now, the parameters of the Court's power of judicial review of
administrative or executive action or decision and the grounds on which the
court can interfere with the same or well settled, proceeded to say further in para
11, thus: - "11. .......Indisputabely, it is a settled position that if
the action or decision is perverse or is such that no reasonable body of
persons, properly informed, could come to or has been arrived at by the
authority misdirecting itself by adopting a wrong approach or has been
influenced by irrelevant or extraneous matters the Court would be justified in
interfering with the same." In the same decision it is also stated that in
examining the validity of an order in such matters the test is to see whether
there is any infirmity in the decision making process and not the decision
itself.
From
this decision it is also clear that when choices are open to the authority it
is for that authority to decide upon the choice and not for the court to
substitute its view. The High Court keeping in view the scope of judicial
review in such matters considered the respective contentions raised before it.
On finding that the Authority passed the impugned order dated 3.12.1999 on
proper consideration of the evidence placed before it and after hearing the
parties in the light of the directions given and observations made by this
Court in the case of Om Prakash, did not consider it appropriate to interfere
with the impugned order.
We do
not find any good or valid reason so as to interfere with the impugned judgment
of the High Court affirming the order passed by the Authority.
Thus,
taking an overall view of the matter having regard to the facts of the case, in
the light of law applicable to them and keeping in view the parameters stated
by this Court in paras 31 and 32 of the judgment in Om Prakash case, the
authority rejected the representations made by the appellants and the High
Court affirmed the same and rightly so in our opinion.
Under
these circumstances, we decline to interfere with the impugned judgment.
Consequently these appeals are dismissed with no order as to costs. In view of
dismissal of appeals, contempt petitions also stand dismissed.
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