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JUDGMENT/ORDER IN - WRIT - C No. 37443 of 2011 at Allahabad Dated-21.10.20... Page 40 of 197http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.do10/21/201140356 of 2011, Satish Kumar Versus State of U.P. and others, in which counter affidavit has been filed by theState of U.P. as well as respondent No.3, the Authority, is treated to be the leading writ petition. The petitionerclaims to be bhumidhar of plots Nos.269, 313 and 1297, which are claimed to be fertile land capable of yieldingthree crops. On a portion of the said land, there are 200 trees. These plots were recorded in the name ofpetitioner's late father Chatarveer Singh. Petitioner also claims that on a part of the plots in dispute, he hasconstructed residential house and has been residing therein. Notification under Section 4 read with Sections 17(1) and 17 (4) of the Land Acquisition Act was issued on 03.10.2005 for acquisition of 580.1734 hectares of landof village Ghori Bachhera. The land was proposed to be acquired for planned industrial development in districtGautam Budh Nagar through Greater Noida Industrial Development Authority. Declaration under Section 6 of theLand Acquisition was issued on 05.01.2006. The petitioner's case in the writ petition is that land use in theDevelopment Plan-2021 has been shown as ''industrial'. It is pleaded that more than 60% of the acquired land hasneither been developed nor has been used for the purpose specified in the Notification, and particularly not even1% of the total acquired land has been developed or used for industrial purpose. Most of the land is in possessionof the villagers, who are carrying on agriculture relating activities. An application was submitted under the Right toInformation Act, 2005 on 20.06.2011, seeking information about the industrial development in the acquired land ofthe village in question, which was replied by letter dated 11.07.2011. As per the information given by the PublicInformation Officer (Industries), no land has been allotted for industrial purpose in village Ghori Bacchera. A copyo the letter dated 11.07.2011 has been filed as Annexure-5 to the writ petition. It is pleaded that there was nosuch urgency so as to invoke the provisions of Sections 17 (1) and 17 (4) of the Act. The aforesaid provisionshave been invoked without application of mind and without there being any appropriate relevant material. Theonly protection given to the person, whose land is sought to be acquired, is an opportunity under Section 5A ofthe Act, which has been denied. Counter affidavit has been filed by the State, stating that recorded tenure holdersby executing agreement have received compensation on 01.12.2006 and the award under Section 11 of the Acthas been declared on 25.07.2011. More than 90% of the tenure holders of the village in question have obtainedcompensation under 1997 Rules. Proposal was submitted by respondent No.3 to the State Government vide letterdated 24.08.2005, and thereafter Notification under Section 4 of the Act was issued on 24.08.2005. Certificatesissued in relevant proforma by the Collector have been filed along with the counter affidavit. Possession of landwas taken and handed over to respondent No.3 on 14.06.2006 and 06.10.2006. The writ petition suffers fromdelay and latches. The urgency clause in the notification was invoked on sufficient material. The allegations madein paragraph 11 of the writ petition that land use of the village in question has been shown in the DevelopmentPlan as "industrial" has not been denied except with the statement that the land had been acquired for plannedindustrial development. Counter affidavit has also been filed by respondent No.3 making same pleadings as weremade in the counter affidavit of the State. Out of 2285 persons 2210 have accepted the compensation underagreement. Development works have been carried out in the village in question and the area has beendemarcated in different sectors. In the village 3189 residential flats have been allotted under various schemes andin an area of 3672 sq. meter 976 flats were built by the Authority, which have been allotted. Group housing flatsas well as facility flats have been allotted. Under 6% scheme for the villagers whose land has been acquired,allotment of land measuring 1357660 sq. meter has been made. Writ petition is barred by latches. None of thegrounds made in the writ petition have any substance. It is denied that the land use has been changed. Land useat the time of the Notification under Section 4 of the Act is residential, commercial and recreational, which has notbeen changed.Intervention application has been filed on behalf of Noida Extension Flat Buyers Welfare Association as well as onbehalf of Omax Build Home Private Limited. Allotment of land was made in the year 2009 and 2010.In all 25 writ petitions of village Ghori Bachhera, more or less, similar pleadings have been made by thepetitioners, which need not be repeated.Writ petitions in Group 4 relate to village Pali. Writ petition No.46933 of 2011, Raghubar vs. State of U.P. andothers writ petition No.47469 of 2011 and writ petition No.25464 of 2011, relate to this village. Writ petitionNo.46933 of 2011, in which pleadings have been exchanged, is being treated as leading writ petition. In Writpetition No.46933 of 2011, there are 81 petitioners. Notification under Section 4 read with Sections 17 (1) and 17(4) of the Act was issued on 07.09.2006 proposing to acquire 225.876 hectares of land. The Notification mentionsacquisition for planned industrial development in district Gautam Budh Nagar through Greater Noida IndustrialDevelopment Authority. Subsequent thereto Notification under Section 6 of the Act was issued ON 28.07.2007.Petitioners claim to be bhumidhars of various plots situate in village Pali. It is alleged that Notification underSection 4 of the Act, invoking the provisions of Sections 17 (1) and 17 (4) of the Act, was issued, withoutapplication of mind and it is submitted that the petitioners had been under bonafide belief that the land was beingacquired to serve the public purpose as specified in the impugned notification, and the acquiring authority being indominating position, the petitioners had no choice but to accept the compensation under 1997 Rules. They beinglaw abiding citizen and being under the impression that the State Government has acquired land for public
JUDGMENT/ORDER IN - WRIT - C No. 37443 of 2011 at Allahabad Dated-21.10.20... Page 41 of 197http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.do10/21/2011purpose, they did not come forward to challenge the notification. However, the very purpose of acquisition hasbeen changed, the respondents are playing fraud, and they are proposing to use it for construction of commercialand residential houses, hence they have come in the writ petition. No notice under Section 9 was issued orserved upon the petitioners. The petitioners are willing and ready to refund the compensation. They are entitled toreturn of their land. Counter affidavit has been filed by the State stating therein that the petitioners have notexplained the inordinate delay in challenging the notification. Possession of the land in dispute was transferred tothe Authority on 01.11.2007 and 10.04.2008. Compensation has been distributed amongst the farmers to the tuneof 93.49%. Award under Section 11 of the Act has been declared on 10.08.2011. Possession memo has beenfiled as Annexure-C.A.-4. Relevant certificates were sent by the Collector with justification to the StateGovernment. Copy of the award has also been brought on record along with the counter affidavit. Counteraffidavit has also been filed by respondent No.3 reiterating the pleadings of the State Government. It has alsobeen stated that after taking over possession area has been demarcated as Sector Kappa-II. The authority hasconstructed roads, laid sewer lines and electricity transmission lines. The area has to be used as TransportationHubb. Affidavit on behalf of M/S Paramount Vilas Private Limited has been filed along with InterventionApplication. It has been stated that there is inordinate delay in filing the writ petition. Lease deed has beenexecuted in favour of the aforesaid company on 11.04.2011 allotting the plots to the company to build cluster ofresidential units. The Company has made huge investment. Intervention Application has also been filed by M/SDivine Con Build Private Limited, claiming execution of lease deed in favour of the applicant on 11.04.2011.Allotments are claimed by the U.P.S.I.D.C. It is alleged that the land has been acquired for U.P.S.I.D.C., whichhas launched scheme for group housing. Award under Section 11 of the Act has been made on 10.08.2011. Oneof the writ petitions, namely, writ petition No25464 of 2008, Prem Hari vs. State of U.P. and others was filed on21.05.2008, challenging the notification taking similar pleadings. It has also been pleaded that in plot No.305there is abadi of the petitioner in an area of 1060 sq. meters of land.Writ petitions in Group 5 relate to village Biraundi Chakrasenpur. Writ petition No.46501 of 2011, Jagdish vs.State of U.P. and others is being treated as leading writ petition. In the said writ petition counter affidavits havebeen filed by the State as well as by the authority. Notification under Section 4 of the Land Acquisition Act wasissued on 28.11.2002 proposing acquisition of 163.2208 hectares of land of the village in question. The provisionsof Sections 17 (1) and 17 (4) of the Act had been invoked. The purpose mentioned in the notification was plannedindustrial development. Declaration under Section 6 of the Act was made on 29.01.2003. The petitioners claim tobe still in possession of the land. The petitioners claim that there was no application of mind while invoking theprovisions of Sections 17 (1) and 17 (4) of the Act. The respondents have not complied with the mandatoryprovisions of Section 17 (3A) of the Act. The State Government till date has not taken possession of the land.Compensation under agreement was received in the year 2007. Abadi plots of influential persons have been leftfrom acquisition. Abadi plots of illiterate persons have been included in the acquisition. In the land underacquisition there is abadi of the petitioners. Acquisition proceedings are nothing but colourable exercise of powerby the State Government. Counter affidavit has been filed by the State stating therein that the possession of landwas taken on 07.05.2003 and 94% compensation has already been disbursed. Award under Section 11 of the Acthas also been declared on 09.09.2009. 85% of the land owners have accepted compensation under agreement.There is delay in filing writ petition. The petitioners are not in possession of the land. Section 11A of the Act is notattracted since possession was taken after invoking the power under Section 17 of the Act. Counter affidavit hasalso filed on behalf of the Authority. Land use under the development plan was shown as residential. Constructionof flats by the builders has been made. It has been denied that the petitioners were forced to accept thecompensation.In writ petition No.46747 of 2011, Kashi Ram Vs. State of U.P. and others, it has been stated that no industry hascome up in the area and only some builders have come up. It is stated that no possession has been taken fromthe petitioners in accordance with law. In other writ petitions relating to village Biraundi Chakrasenpur, grounds ofchallenge to the notification, more or less, are similar.Writ petition No.46130 of 2011, Roshan vs. State of U. P. And others has been filed challenging the notificationdated 31.07.2007 issued under Section 4 of the Act proposing to acquire plot No.64Kha area 0.8233 Hectares.Urgency clause was invoked by dispensing enquiry under Section 5A of the Act. Declaration under Section 6 ofthe Act was made on 15.01.2008. Petitioners' case is that they are still in actual possession of the land in dispute.The respondents have not complied with the provisions of Section 17(3A) of the Act. No award has yet beenmade. Very nominal sum of money was paid to the petitioners. There was no sufficient material for invoking theprovisions of Sections 17 (1) and 17 (4) of the Act. Acquisition of land is nothing but colourable exercise ofpowers. Counter affidavit has been filed by the State, stating that the possession of the land has been taken on09.05.2008. The only tenure holder, who has filed writ petition, has already received the compensation under theagreement. There were sufficient materials for invoking the urgency clause under the provisions of Sections 17 (1)and 17 (4) of the Act. Development has been made in the area by constructing roads, laying down sewer lines
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