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JUDGMENT/ORDER IN - WRIT - C No. 37443 of 2011 at Allahabad Dated-21.10....http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.doPage 170 of 19710/21/2011The submission of Shri S.P. Gupta, learned Senior Advocate appearing for the intervenors, that since the landowners have not objected against the dispensation of inquiry by invoking Sections 17 (1) and 17 (4), of the Act,1894 it will be presumed that that the petitioners have waived their right to challenge the notifications does notcommand us. The right of objection to land owners is provided under Section 5A of the Act, 1894 after apreliminary notification is issued under Section 4 of the Act, proposing to acquire any land. When the right ofobjection under Section 5A of the Act, 1894 has been dispensed with by invoking Section 17(4) of the Act, 1894petitioners have no right to file objections. The question of waiver of right to file objection would have arisen if theland owners had right of objection under Section 5A of the Act, 1894 and they did not avail the same. There beingno right of objection, the question of waiver does not arise. Shri S.P. Gupta, then contended that it was open forthe land owners to raise their objections before the State Government objecting the dispensation of inquiry. Thesaid submission of Shri S.P. Gupta does not have our approval since there is no forum provided before the StateGovernment asking the petitioners to go before the State Government and raise objections failing which they shallbe treated to have waived their right to challenge the acquisition is misconceived.The principle of waiver has been elaborately dealt with and considered by the Apex Court in Sikkim SubbaAssociates Vs. State of Sikkim, (2001) 5 SCC 629.The Apex Court defined the principle of waiver in paragraph 16 in following words."Waiver involves a conscious, voluntary and intentional relinquishment or abandonment of a known, existing legalright, advantage, benefit, claim or privilege, which except for such a waiver, the party would have enjoyed".The submission of Shri S.P. Gupta that the petitioners accepting the compensation under the 1997 Rules hencethey shall be treated to have waived their right to challenge the acquisition now needs to be considered.From the materials brought on record, it does appear that the majority of land owners have accepted thecompensation under the 1997 Rules.1997 Rules, have been framed by the State of U.P. under Section 11 sub-section 2. The circumstances underwhich the petitioners have accepted the compensation under the 1997 Rules, have been explained in several writpetitions. It is useful to refer to the pleadings in the writ petition in that regard.In Writ Petition No.45694/2011, Jai Singh & Ors Vs. State of U.P.& Ors, the petitioners have challenged thenotifications dated 30/3/2002 and 28/6/2003 issued under Sections 4 and 6 and the award dated 29/1/2010. Thepetitioners have pleaded in the writ petition that the Additional District Magistrate, (Land Acquisition) GautamBudh Nagar sent a printed notice to the petitioners to appear before the Additional District Magistrate, (LandAcquisition) Gautam Budh Nagar for payment of compensation. When the petitioners appeared they wereinformed that they would be paid compensation at the rate of Rs. 378.92 per Square Yard of the acquired land.Petitioners did not agree to accept the said compensation and then they were told that the land having alreadybeen vested in the State, petitioners shall be deprived from receiving the compensation for long time and theyhave no option but to accept the compensation. Petitioners have further pleaded that the award under Section 11is passed after 7 to 8 years of the declaration during which the petitioners had been deprived of their land andenjoyment of their property. It is useful to quote paragraph 16 and relevant portion of paragraph 46 which are tobe following effect:-"16.That the Additional District Magistrate, (Land Acquisition) Gautam Budh Nagar sent a printed notice to thepetitioners intimating that their land situated in Village Sadarpur is needed for panned industrial Development.Petitioners in pursuance of the aforesaid notice appeared before the Additional District Magistrate, (LandAcquisition) Gautam Budh Nagar, then they have been told by the Authority officials that the Authority intended topay compensation @ Rs. 378.92 per sq yard of the acquired land. Petitioners were not agreed to the aforesaidrate of the land, but the officials of the Authority threatened them that since the land is vested into the StateGovernment and you people will be deprived from receiving the compensation for long time, you have no optionexcept to accept the said compensation, petitioners being afraid of, have accepted 90% compensation andentered into agreement.46. That the statutory authority has taken 7 to 8 years in passing the impugned award which is unexplained delay.The delay in making the said award deprived the land owners/petitioners of the enjoyment of their property or todeal with the land and delay in making the said award has subjected the owners of the land to untold hardship."In the present case, the award under Section 11 was declared on 29/1/2010 which has been filed as Annexure-4
JUDGMENT/ORDER IN - WRIT - C No. 37443 of 2011 at Allahabad Dated-21.10....http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.doPage 171 of 19710/21/2011to the writ petition which award was declared after more than 6 and a half years from issuance of declarationunder Section 6. The rate of compensation under the 1997 Rules, as has been also noted in the award wasRs.378.92 per square yard for "Pushtaini" and Rs. 329.50 per square yard for "Gair Pushtaini", whereas in theaward under Section 11(1), the rate fixed for per square yard was Rs.156 which has been mentioned in theaward. The pleadings of the petitioners as noted in paragraph 16 and the apprehension which has beenexpressed in the pleadings come true by the events as noted above.Learned counsel for the petitioners have rightly contended that the acceptance of compensation under the 1997Rules, is not voluntarily, but is due to force of circumstances and the compulsion. The land of poor farmers havebeen acquired and possession having been claimed to be taken by invoking Section 17 (1) of the Act, 1894petitioners are deprived of their property and they had no option, but to accept whatever the meagre amount wasoffered by the respondents under the agreement to somehow survive.Learned counsel for the petitioners further contended that in case the petitioners do not accept the amount underthe agreement they will not be paid anything for years together since the declaration of the award takes severalyears. Accepting the amount under above circumstances cannot be said to be acceptance of amount voluntarilynor such acceptance can be treated to be waiver of rights of the petitioners to challenge the acquisition. Thesubmission of Shri S.P. Gupta, learned Senior Advocate appearing for the intervenors that remedy was availableto the land owners/petitioners to go under Section 18 of the Act, 1894 after accepting the compensation under theagreement also cannot be accepted. The remedy under Section 18 of the Act, 1894for enhancement of thecompensation is not available to those persons who have accepted the compensation under the 1997 Rules.Learned counsel for the petitioners have also placed reliance on the judgment of the Apex Court in Radhy Shyam(Dead) through LRs & Ors. Vs. State of U.P. & Ors, (2011) 5 SCC 553.In the aforesaid case, the Apex Court had occasion to consider similar issues. In the said case notifications ofland acquisition issued under Section 4 read with Sections 17 (1) and 17 (4) as well as declaration under Section6 was challenged of Village Makaura District Gautam Budh Nagar. Writ petition was filed by the land ownerswhich was dismissed by the High Court. Against which the appeal was filed. One of the submission raised beforethe Apex Court was that the land owners having accepted the compensation under the 1997 rules, they cannot beallowed to challenge the acquisition. Following observation was made by the Apex Court in para 20 which isquoted below:-"20. The resultant effect of these acquisitions is that the land owners, who were doing agricultural operations andother ancillary activities in rural areas, have been deprived of the only source of their livelihood. Majority of themdo not have any idea about their constitutional and legal rights, which can be enforced by availing theconstitutional remedies under Articles 32 and 226 of the Constitution. They reconcile with deprivation of land byaccepting the amount of compensation offered by the Government and by thinking that it is their fate and destinydetermined by God. Even those who get semblance of education are neither conversant with the functioning ofthe State apparatus nor they can access the records prepared by the concerned authorities as a prelude to theacquisition of land by invoking Section 4 with or without the aid of Sections 17(1) and/or 17(4)."Again the Apex Court had occasion to consider another case of land acquisition in which the acquisition of land ofVillage Sahberi of District Gautam Budh Nagar was involved is Greater Noida Industrial Development AuthorityVs. Devendra Kumar & Ors. 2011 (6) ADJ 480.In the said case the issue of accepting compensation by the land owners under the 1997 Rules was also raised.The submission made before the Apex Court in the said case was that the relief should not be granted to thosewho have accepted compensation. The Apex Court observed that the situation in which the people belonging tothis class are placed does not leave any choice to them to make compromises and try to salvage whatever theycan. Following observation was made in paragraph 39 which is quoted below:-"39. We do not find any substance in the argument of the learned counsel for the petitioners that quashing of theacquisition proceedings should have been confined to those who had not accepted the amount of compensation.Once the High Court came to the conclusion that the acquisition of land was vitiated due to want of good faith andthe provisions of the 1894 Act had been invoked for a private purpose, there could not have been any justificationfor partially sustaining the acquisition on the ground that some of the land owners or their transferees hadaccepted compensation by entering into an agreement with the Authority. The situation in which the peoplebelonging to this class are placed in the matter of acquisition of their land leave a little choice to them but to makecompromises and try to salvage whatever they can. Therefore, even though some persons may not have resistedthe acquisition and may have accepted the compensation by entering into agreements, it is not possible to find
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