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JUDGMENT/ORDER IN - WRIT - C No. 37443 of 2011 at Allahabad Dated-21.10.20... Page 72 of 197http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.do10/21/2011filed along with the counter affidavit by the State/Authority on the record. The delivery of possession as alleged bythe respondents being only paper transactions , the land never vested in the State. Most of the land owners arestill in possession of their agricultural/Abadi land which is being used for the aforesaid purpose.(10)The respondents never offered 80% compensation of the land as mandated by Section 17(3A) of the LandAcquisition Act to the land owners which vitiates the entire acquisition.(11)No award having been declared within two years from the date of the publication of the award under section6, the entire proceedings for the acquisition has lapsed under section 11A of the Land Acquisition Act.(12)The compensation received by land holders under agreement under U.P. Land Acquisition (Determination ofCompensation and Declaration of Award by Agreement) Rules, 1997 was under compulsion and in forcedcircumstances. The land holders were told that unless they accept compensation under agreement in the awardwhich shall be prepared under section 11, they shall be paid very meager amount and even if any proceeding isinitiated by them for enhancement of compensation under section 18, the same shall take years which shall makethe land holder loose even the amount which is being offered under 1997 Rules.(13)That State and Authority being in dominating position, the petitioners had to accept the compensation underagreement under force of circumstances which acceptance of compensation cannot prejudice the rights of thepetitioners to point out illegality in the acquisition proceedings.(14)The petitioners being law abiding citizens were under bonafide belief that the acquisition of their land being forplanned industrial development, plenty of industries shall come up in their area providing avenues of livelihoodand opportunity to their children to get employment in view of which factors some of the petitioners did not initiallyrush to the Court challenging the acquisition but subsequently when the petitioners came to know that the landwhich was acquired in the name of planned and industrial development is being transferred to thebuilders/colonizers in huge area permitting them to construct multistoried complexes towards huge profit, thepetitioners then realized that the entire acquisition was in colourable exercise of powers and a fraud has beenplayed by the authority in acquiring their land. Although some of the petitioners have already filed writ petitionschallenging the notifications in question in this Court which writ petitions are still pending and in some of the writpetitions which were filed immediately after the notification, there was no objection of any kind of delay.(15)The petitioners belong to agriculturist class and are not much familiar to legal proceedings. Further they beingin possession of their land and there being no development for years together, they did not rush to the Courtimmediately. The petitioners never waived their right nor acquiesced to the acquisition but being helplessagriculturist they did not know what to do in such circumstances.(16)The petitioners land were taken on payment of compensation under Agreement Rules as well as in somecases award given under section 11 for few hundred rupees per square yard which land has been transferred bythe Authority to the builders and colonizers for an amount of more than Rs. 10,000 to 20,000 per square yard. TheAuthority which is statutory authority constituted for industrial development has to carry on development withoutany intention of earning any profit, has converted itself into broker for private colonizers, builders and otherinterested parties.(17)In several writ petitions challenging the notifications under section 4 and 6, this Court has granted interimorder directing the parties to maintain status-quo and in spite of their being interim order by this Court, theauthority proceeded to allot the land creating third party rights.(18)The Division Bench judgment of Har Karan Singh lays down the correct law and has rightly taken the viewthat invocation of urgency in notification issued under section 4 by invoking sections 17(1) and 17(4) wasunjustified and has rightly quashed the notifications of acquisition relating to village Patwari. The Division Benchhas rightly followed the judgment of the apex Court in Radhey Shyam Vs. State of U.P. (2011) 5 SCC 553 and thejudgment of the apex Court in 2011 (6) ADJ 480 Greater Noida Industrial Development Authority Vs. DevendraKumar. The apex Court in the aforesaid cases on similar facts and circumstances had laid down that urgencyunder section 17(1) and 17(4) cannot be invoked. The Division Bench in Har Karan Singh was bound by theaforesaid pronouncement of the apex Court and did not commit any error in not following the earlier DivisionBench judgment in Harish Chand' case. Similarly several other Division Bench judgment of this Court upholdingthe notifications which are under challenge in some of the writ petitions need not be followed in view of the clearpronouncement of the apex Court in the aforesaid cases. Moreover, the said judgments were between thedifferent parties and are not binding on the petitioners of these writ petitions. The creation of their party right infavour of builders/colonizers and other allottees being result of colourable exercise of power by the respondents
JUDGMENT/ORDER IN - WRIT - C No. 37443 of 2011 at Allahabad Dated-21.10.20... Page 73 of 197http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.do10/21/2011cannot come in the way of the petitioners for getting the notifications quashed and restoration of land and thesethird party rights having been created in spite of entertaining various writ petitions by this Court, the respondentscannot be allowed to claim any benefit. The development as alleged by the interveners of some of the areas ofland is on their own risk and cost and cannot be taken as shield to protect the illegal arbitrary actions of therespondents.(19)After order dated 26.7.2011 in writ petition No. 37443 of 2011, the authority themselves called the landowners of village Patwari and a settlement was entered between them by which additional compensation of Rs.550/- per square meter was paid by the Authority. The Authority however, has not called the land owners of othervillages for any such settlement which is discriminatory and arbitrary.(20)The authority having not obtained approval of Greater Noida Master Plan 2021 from National Capital RegionalPlanning Board constituted under National Capital Regional Planning Board Act, 1995, cannot proceed with anydevelopment or to allot the land to builders/colonizers as per Plan 2021.Arguments on behalf of the State were lead by Sri L. Nageswar Rao, Senior Advocate and Sri Ravi Kant, SeniorAdvocate.Learned Counsel appearing for the State respondent refuting the submissions of learned counsel for thepetitioners contended that most of the writ petitions filed by the petitioners is barred by delay and laches anddeserve to be dismissed on this ground alone. It is submitted that most of the petitioners were prompted by thejudgment of the apex Court in the cases of Radhey Shyam and Devendra Kumar (supra) and as a matter of factthe petitioners in the aforesaid two cases were vigilant and approached the Court within time, cannot give a causeof action to others to rush to this Court at this belated stage. The petitioners ought to have challenged the landacquisition proceedings immediately after declaration under section 6 was issued. The petitioners having notapproached the Court immediately after issuance of declaration under section 6, the writ petitions are barred bylaches. Possession was taken by the State in accordance with law and in consequence of taking possessionunder section 17(1) of the Land Acquisition Act, the land has vested in the State free from all encumbranceswhich cannot be divested. The writ petition challenging the acquisition at this stage when the land has alreadyvested in the State cannot be entertained. Taking of possession by the State was by executing a Panchnamawhich is recognized mode of taking possession where large tract of land is acquired. Taking of actual physicalpossession is not possible in the circumstances when large tract of land is involved and taking of symbolicpossession is sufficient compliance of section 17(1) of the Land Acquisition Act. The majority of the land ownershave accepted compensation voluntarily under 1997 Rules. After accepting compensation under 1997 Rules, it isnot open for them to challenge the acquisition. The land owners have waived their right after acceptingcompensation under 1997 Rules. . In the event the land owners were not satisfied with the payment ofcompensation under Agreement it was open for them to approach the Collector under Rule 6 of 1997 Rules forsetting aside of the agreement which having not been done in any case it is not open for the petitioners tocontend otherwise. The petitioners having acquiesced to the acquisition proceedings they are stopped fromchallenging the notifications under section 4 and 6. In most of the cases, award has already been declared andthose who have not accepted compensation under 1997 Rules can very well take recourse of Section 18. TheDivision Bench judgment in the case of Harkaran Singh Vs. State of U.P. which is latter judgment to the DivisionBench judgment in the case of Harish Chand Vs. State of U.P. is per in curium. In Harkaran Singh's case, theDivision Bench after perusing the records of the State Government returned the finding that invocation of Sections17(1) and 17(4) was in accordance with law. The subsequent Division Bench in Harkaran Singh's case could nothave taken the contrary view and only course open for the subsequent Division Bench was to make a referencefor consideration by larger Bench which having not been done, the judgment of Harkaran Singh's case has to beignored. Several notifications which are under challenge in these writ petitions have already been upheld bydifferent Division Benches of this Court, in view of which decisions, the impugned notifications have also to beupheld. In some cases against the Division Bench judgment upholding the notifications under sections 4 and 6,Special Leave Petition have already been dismissed by the apex court. Following the judgment of Harish Chand'scase, all the writ petitions deserve to be dismissed. After taking possession of land by the Authority, the same wasdealt with by the authority in accordance with Master Plan 2021 by allocating it for different uses namely;industrial, commercial, residential, green area etc. Third party rights have been created by making variousallotment and allottees are in possession and have carried on various development work. The prayer of thepetitioners to quash the acquisition at this stage cannot be allowed. There was no colourable exercise of power bythe State. There was sufficient material before the State Government for invocation of Section 17(1) and 17(4).Subjective satisfaction of the State Government in invoking urgency clause can be challenged only on limitedgrounds of malafide and there being no pleadings or grounds alleging malafide against the State, subjectivesatisfaction cannot be interfered with by this Court. Non compliance of Section 17(3A) is not fatal to theacquisition proceedings as has already been held by the apex Court in various judgment. Section 11 A is not
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