OM PRAKASH AND ORS. v. STATE OF U.P. AND OTHERS

A appellants might have mounted a challenge on the ground of mala tides, they have not done so before the High Court nor before this Court. Under these circumstances, we find considerable force in the contention of learned senior counsel for the respondent that it is neither advisable nor feasible to interfere with the acquisition of such large tracts of lands when the occupants of 9/ I 0th of the acquired lands have not thought it fit to challenge these acquisition B proceedings and the occupants of only I/10th of lands are agitating their grievance since more than six years firstly before the High Court and then before this Court. The appellants' main grievance centres round the question -'"" whether their lands having alleged abadi could be acquired in the light of the State policy for not acquiring such lands. For such a contention, of course, c grievance could have been made under Section 5-A inquiry if it was held. But that could have been urged years back before Section 6 notification saw the light of the day in 1992. Now after a passage of more than six years, it would not be feasible to put the clock back and permit the appellants to agitate this contention which appears to be the sole contention for opposing the acquisition proceedings in the facts of the present cases by permitting them to urge this grievance in Section 5-A inquiry which according to them should be held at this stage. We will show presently that this solitary grievance of the appellants could be vindicated before the State authorities themselves by relegating the appellants to proper remedy by way of representation under Section 48 of the Act and when that remedy is available to the appellants and when that is the sole grievance of the appellants, at this stage no useful purpose would be served by striking down the notification under Section 4( I) qua the appellants so far as invocation of Section 17 (4) is concerned and the consequent' notification under Section 6. That we cannot permit upsetting the entire apple cart of acquisition of 500 acres only at the behest of I/10th of land owners whose lands are sought to be acquired. We may also keep in view the further salient fact that all the appellants have filed references for additional compensation under Section 18 of the Act. Shri Shanti Bhushan, learned senior counsel, was right when he contended that the appellants could not have taken the risk of getting their reference applications time barred during the pendency of these proceedings. Therefore, without prejudice to their contentions in the present proceedings they have filed such references. Be G that as it may., that shows that an award is also made and references are pending. Under these circumstances for enabling the appellants to have their say regarding release of their lands on the ground that they are having abadi t and that the State Policy helps them in this connection the appellants can be permitted to have their grievances voiced before the State authorities under H Section 48 rather than under Section 5-A of the Act at such a late stage.

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'I Consequently, despite our finding in favour of the appellants on Point No. A I I, we do not think that this is a fit case to set aside the acquisition proceedings on the plea of the appellants about non-compliance with Section 5-A at this late stage. It is also obvious that if on this point the notifications are quashed for non-compliance of Section 5-A, that would open a pandora 's box and those occupants who are uptill now sitting on the fence may also get a hint to file further proceedings on the ground of discriminatory treatment by the State authorities. All these complications are required to be avoided and hence while considering the question of exercise of our discretionary jurisdiction under Article 136 of the Constitution oflndia, we do not think that this is a fit case for interference in the present proceedings with the impugned notifications. Point No. 3, therefore, is answered in the affirmative against the appellants and in favour of the respondents.

Point No. 4

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. D 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. - (I) 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. H

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A (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 (I) of Section 48 the Government is at liberty to withdraw from the acquisition of any land of which possession has not been taken. Learned 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 No. 4, Secretary, New Okhla lndustrial Development Authority. It is stated in the counter that NOIDA has been put in possession of the acquired lands from 30th March 1992 and the lands under acquisition now form a part of Sectors 43 and 44 ofNOIDA. 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 D at Allahabad on 31.3 .1992 passed an interim order to the effect that there would be status quo and/or that the petitioners 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 Page 202 which mentions that for the lands detailed in the Certificate, possession should be given to the Tehsildar/Administrative officer, NOIDA on 30th March 1992. Number of lands are listed totalling to 492.91 acres wherein appellants' khasra numbers are also mentioned. It is difficult to appreciate as to how the Possession Certificate for all these numbers of lands would necessarily include actual taking over of 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 30th March 1992 and the High Court of Allahabad granted status quo order on the next day, i.e., 31st March 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 30th March, 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 I Ith March 1996 showed that some

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of the lands in question were actually occupied by residents and the lands A / ' were constructed upon and 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 30th March, 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, B before this Court could grant any interim relief, possession appeared to have been taken of these lands at least on 18th November 1995. Our attention was ·1( 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 18th November 1995. It is obviously after the decision c of the High Court dated 24th August, 1995. However, it must be noted that this Court by order dated 29th September, 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 18th November, 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 distributed, how it could 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 18th Novemler, 1995 itself shows the details of lands possession of which was given to NO IDA 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 {I) can be legitimately invoked by the appellants for consideration of the State authorities. It is, of course, trut; that the said provision gives liberty to the State to withdraw form acquisition of any land but if the appellants are in the position to convince the State authorities that their lands were having abadi on the date on which Section 4 notification was issued on 5th January, 1991 and it was that abadi which had continued without any additional .,--1 construction thereon till the date of Section 6 notification and thereafter and such abadi was squarely covered by the Sate policy of not acquiring lands having abadi, then it will be open to the State authorities to pass appropriate H

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A 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 ofUttar Pradesh invoking 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 B 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 7th January, 1992 and whether such policy is still current and operative at the time when the appellants' representations ;ome up for consideration of appropriate authorities of the State Government. It will be for C 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: D (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;

E (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; F (v) whether such Government policy has continued to be in force till the date of representation.

In short, the entire matter is left at large for the consideration of the G State authorities in the appellants' representation. 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 re!easing such lands from acquisition on that score

OM PRAKASH v. STATE [S.B. MAJMUDAR, J.) 683

,'I. as indicated hereinabove and for that purpose they may give 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.l 0.1998 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.

Subject to the aforesaid liberty given to the appellants, these appeals will, therefore, stand dismissed. We may, however, state that the status quo regarding possession on spot in connection with the appellants' lands shall be maintained by all concerned till 30.11.1998 within that time the consideration of the appellants' representation under Section 48(1) of the Act is completed by the State authorities and result thereof is communicated to the representationists. We also make it clear that if the appellants do not file such representations on or before 31.8.1998 the State authorities will not be required to consider any such representation filed thereafter and the status quo order regarding possession as granted by us will stand recalled after 31.8.1998 qua the concerned appellants who do not file such representations within the time granted by us for the purpose.

Before parting with the present proceedings we may mention one request made by learned senior counsel Shri K. K. Venugopal appearing for Respondent No. 5 whose intervention application was granted in S. L. P. (C) No. 20905 of

1995. Learned senior counsel stated that many serious objections are required to be considered against the acquisition of the land of the intervener and it was his contention that lands were acquired for being allotted to persons closely related to the Chairman and other powers that be, but as these contentions raise disputed questions of fact and as Respondent No. 5 had not filed any writ petition in the High Court he may be given liberty to file writ petition under Article 226 of the Constitution of India before the High Court. The said request is reasonable. In the present appeals arising out of judgment of the High Court in writ petitions filed by the appellants, Respondent G No. 5's independent grievance cannot be examined. It would, therefore, be appropriate to relegate Respondent No. 5 intervener to the remedy of filing a substantive writ petition under Article 226 of the Constitution of India before the High Court. The respondent-authorities had no objection to such course being adopted. Consequently, Respondent No. 5 - intervener's contentions are not being examined by us in these proceedings. It is trite to H

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A observe that as and when Respondent No. 5 files a substantive writ petition .. under Article 226 of the Constitution of India before the High Court, it will be for the High Court to decide the merits of the said writ petition including the question whether the writ petition at such a stage is required to be entertained or not. In short, we express no opinion on the merits of such writ petition that may be filed by the intervener - Respondent No. 5 in the High B Court. The said petition will have to be decided on its merits including the question of its maintainability by the High Court after hearing the parties concerned.

In the result, these appeals fail and are dismissed, subject to the aforesaid C liberty reserved to the appellants for filing written representations under Section 48 sub-section {I) of the Act. There will be no order as to costs in the facts an circumstances of the cases.

RKS. Appeals dismissed.