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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 176 of 19710/21/20115A of the Act, 1894 was not justified, present is not a case where the petitioners are entitled for relief of quashingthe notifications acquiring the land. It is submitted that the said relief is to be refused on the grounds mentionedbelow:(I)The petitioners have approached this Court with delay and not immediately after declaration under Section 6 ofthe Act.(II)After taking of the possession, the Authority has carried out development works and made allotments tovarious third parties who have acquired rights and to undo all subsequent acts shall neither be equitable nor just.(III)Due to the development activities carried on the land under acquisition, now the situation is irreversible andthe nature of land having been changed, relief of quashing the notifications be refused.Learned Counsel for the State, Authority as well as the counsel appearing for the intervenors have referred tovarious judgements of the Apex Court in support of their submissions.The first judgment which has been relied on by the learned counsel for the respondents in support of theirsubmission is the judgment of the Apex Court in Kishan Das & Ors. Vs. State of U.P. & Ors, (1995) 6 SCC 240.In the said case, the Apex Court observed that since the land under acquisition constructions have been madeand completed, there is no need to go into the question of urgency and exercise of power under Section 17(4) ofthe Act at such a belated stage.Learned counsel for the respondents has also placed reliance on the judgment of the Apex Court in Om Prakash& Anr. Vs. State of U.P. & Ors, (1998) 6 SCC, 1.In the said case, the land of Village Chhalera Banger then situated in District Ghaziabad was acquired forPlanned Industrial Development of District Ghaziabad through Noida. The acquisition was challenged in the HighCourt on several grounds including the ground that inquiry under Section 5A of the Act was wrongly dispensedwith and the High Court dismissed the writ petition. The matter was taken in appeal before the Apex Court. TheApex Court found that the said was not a case where power under Section 17(4) should have been invoked. Thepoint was answered in favour of the land owners. The Court thereafter proceeded to consider as to whether inview of the finding that the inquiry under Section 5A of the Act was wrongly dispensed with, whether thenotifications under Sections 4 and 6 of the Act be quashed or not. The Apex Court made following observations inparagraph 30 which is quoted below:-"30. It is also to be kept in view that the impugned notification under Section 6 of the Act was issued for thepurpose of planned development of District Ghaziabad through NOIDA and by the said notification, 496 acres ofland spread over hundreds of plot numbers have ben acquired. Out of 494.26 acres of land under acquisition,only the present appellants owning about 50 acres, making a grievance about acquisition of their lands have goneto the court. Thus, almost 9/10th of the acquired lands have stood validly acquired under the land acquisitionproceedings and only dispute centers round 1/10th of these acquired lands owned by the present appellants. It isa comprehensive project for the further planned development in the district. We are informed by learned seniorcounsel Shri Mohta for NOIDA, that a lot of construction work has ben done on the undisputed land underacquisition and pipelines and other infrastructure have been put up. That the disputed lands belonging to theappellants may have stray complex of lands sought to be acquired. That if notification under Section 4(1) readwith Section 17 (4) is set aside qua these pockets of lands then the entire development activity in the complex willcome to a grinding halt and that would not be in the interest of anyone............ ................That we cannot permit upsetting the entire apple cart of acquisition of 500 acres only at the behest of 1/10th ofland owners whose lands are sought to be acquired. We may also keep in view the further alien fact that all theappellants have filed reference 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 gettingtheir reference applications time barred during the pendency of these proceedings. Therefore, without prejudice totheir contentions in the present proceedings they have filed such references. Be that as it may., that shows thatan award is also made and reference are pending. Under these circumstances for enabling the appellants to havetheir say regarding release of their lands on the ground that they are having abadi and that the State Policy helpsthem in this connection the appellants can be permitted to have their grievances voiced before the Stateauthorities under Section 48 rather than under Section 5-A of the Act at such a late stage. Consequently, despiteour finding in favour of the appellants on Point No. 1, we do not think that this is a fit case to set aside theacquisition proceedings on the plea of the appellants about non-compliance with Section 5-A at this late stage. it
JUDGMENT/ORDER IN - WRIT - C No. 37443 of 2011 at Allahabad Dated-21.10....http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.doPage 177 of 19710/21/2011is also obvious that if on this point the notifications are quashed for non-compliance of Section 5-A, that wouldopen a pandora's box and those occupants who are uptill now sitting on the fence may also get a hint to filefurther proceedings on the ground of discriminatory treatment by the State authorities. All these complications arerequired to be avoided and hence while considering the question of exercise of our discretionary jurisdiction underArticle 136 of the Constitution of India, we do not think that this is a fit case for interference in the presentproceedings with the impugned notifications. Point No. 3, therefore, is answered in the affirmative against theappellants and in favour of the respondents."Again in Tika Ram & Ors Vs. State of U.P. & Ors, (2009) 10 SCC 689, the Court was faced with a situation whereinvocation of Section 5A of the Act, 1894 was held not to be justified. The Court thereafter proceeded to consideras to whether the notification deserves to be quashed or not. Following was laid down in paragraph 116 which isquoted below:-"116.In a reported decision in Kishan Das & Ors. v. State of UP & Ors. this Court has taken a view that where theacquisition has been completed by taking the possession of the land under acquisition and the constructions havebeen made and completed, the question of urgency and the exercise of power under Section 17(4) would notarise. We must notice that acquisitions in this case are of 1984-1985 and two decades have passed thereafter.The whole township has come up, the houses and the lands have been allotted, sold and re-sold, awards havebeen passed and overwhelming majority of land owners have also accepted the compensation, this includes evensome of the appellants. In such circumstances we do not think that the High Court was in any way wrong in notinterfering with the exercise of power under Section 17 (4) of the Act. At any rate, after the considered findings onthe factual questions recorded by the High Court, we would not go into that question."The next case relied on by the learned counsel for the respondents is Tamil Nadu Housing Board Vs. L.Chandrasekaran (Dead) By Lrs & Ors , (2010) 2 SCC 786.In the aforesaid case, the High Court quashed the declaration under Section 6 of the Act leaving the preliminarynotification in tact. Thereafter Special Leave Petition was filed by A.S. Naidu in which the Apex Court took noticeof the Tamil Nadu Land Acquisition (Amendment Act, 16/1997) in terms of which declaration under Section 6 wasrequired to be made within three years from the date of preliminary notification. The Apex Court noticing theamendment took the view to quash the acquisition/notification with liberty to the State Government to issue freshnotification. L. Chandrasekharan, respondents in the case under consideration filed writ petition in the year 1997,for issuing direction to Board to certify that the acquired land was no longer needed for which it was acquired. Thewrit petition was allowed by the learned Single Judge. An appeal was filed before the Division Bench which tookthe view that the order passed in A.S. Naidu's case was in respect of the petitioner in that case only and held thatthe writ petitions are not entitled to make representation for reconveyance of the acquired land. Shri L.Chandashekhar submitted a representation and thereafter filed a writ petition in the year 1999 which wasdismissed. An appeal was filed before the Division Bench which was allowed relying on its earlier order directingthe Board/Member to reconvey the land to the respondents subject to their depositing the amount ofcompensation. The Tamil Nadu Housing Board filed a Special Leave Petition which was allowed by the ApexCourt. The Apex Court in the said judgment made following observations in paragraph 16 which is quoted below:-"16. From the above reproduced prayer clause, it is crystal clear that the only relief sought by Shri A.S. Naidu wasfor quashing the notification 11 issued under Section 6 in so far it related to the land falling in Survey Nos.254,257, 258, 260, 268 and 271 in Mogapperi Village, No.81, Block V, Saidapet Taluk and in the absence of a specificprayer having been made in that regard, neither the High Court nor this Court could have quashed the entireacquisition. This appears to be the reason why the Division Bench of the High Court, while disposing of WritAppeal Nos. 676 of 1997 and 8/9 of 1998 observed that quashing of acquisition by this Court was only in relationto the land of the petitioner of that case and, at this belated stage, we are not inclined to declare that order dated21.8.1990 passed by this Court had the effect of nullifying the entire acquisition and that too by ignoring that theappellant-Board has already utilized portion of the acquired land for housing and other purposes. Any suchinferential conclusion will have disastrous consequences inasmuch as it will result in uprooting those who mayhave settled in the flats or houses constructed by the appellant-Board or who may have built their houses on theallotted plots or undertaken other activities."Heavy reliance has been placed by the learned counsel for the respondents on the judgment of the Apex Court inAnand Singh & Anr. Vs. State of U.P. & Ors, (2010) 11 SCC 242.In the aforesaid case, appeals were filed against the judgment of the High Court by which judgment, writ petitionfiled by the land holders was dismissed. The land was acquired for residential colony by the GorakhpurDevelopment Authority. One of the submission made before the High Court and the Apex Court was that the State
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