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SMT. HARDEVI SARASWAT versus U.P. AVAS EVAM VIKAS PARISHAD & OTHRS

High Court of Judicature at Allahabad

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Smt. Hardevi Saraswat v. U.P. Avas Evam Vikas Parishad & Othrs - SECOND APPEAL No. - 918 of 2007 [2007] RD-AH 14642 (29 August 2007)

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HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 27

Second Appeal No. 918 of 2007

Smt. Hardevi Saraswat Vs. U.P. Avas Evam Vikas Parishad and others

~~~~~

Hon'ble Dilip Gupta, J.

The plaintiff has filed this Second Appeal for setting aside the judgment and decree of the learned Additional District Judge, Hathras by which the Civil Appeal that had been filed by the defendants was allowed and the judgment and decree passed in the Original Suit was set aside.

It is not disputed that the land involved by the Suit was purchased by the plaintiff-appellant by means of the registered sale deed dated 5.7.1983 after the notification under Section 28 of the U.P. Avas and Vikas Parishad Adhiniyam (hereinafter referred to as the 'Avas Act') which is equivalent to Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the 'Act') was issued on 19.7.1980 and a declaration under Section 32 of the Avas Act which is equivalent to Section 6 of the Act was made on 12.2.1983 and the notice for taking possession under Section 17 of the Act was issued on 29.6.1983. The First Appellate Court has, therefore, allowed the Appeal filed by the defendants since the sale transaction made by the owner of the property after the publication of the notification under Section 28 of the Avas Act was void.

There is no infirmity in the aforesaid view taken by the learned First Appellate Court as the owner of the land was prevented from creating any encumbrance over the land after the notification under Section 28 of the Avas Act had been issued. In this context it is pertinent to refer the decision of the Supreme Court in Gian Chand Vs. Gopala and others, JT 1995(2) SC 513, wherein it has been observed:-

"Admittedly, since the notification u/s 4(1) of the Land Acquisition Act was already published, the question arises whether the appellant could get a sale deed executed and in its absence whether he is entitled to obtain refund of earnest money paid under the agreement. On publication of notification under Section 4(1) of the Act, though it is not conclusive till declaration under Section 6 was published, the owner of the land is interdicted to deal with the land as a free agent and to create encumbrances thereon or to deal with the land in any manner detrimental for public purpose. Therefore, though notification under Section 4(1) is not conclusive, the owner of the land is prevented from encumbering the land in that such encumbrance does not bind the Government. If ultimately, declaration under Section 6 is published and acquisition is proceeded with, it would be conclusive evidence of public purpose and the Government is entitled to have the land acquired and take possession free from all encumbrances. Any sale transaction or encumbrances created by the owner after the publication of notification under Section 4(1) would therefore be void and does not bind the State."

In this view of the matter, no substantial question of law much less any question of law arises for consideration in this Second Appeal. It is, accordingly, dismissed at the admission stage.

Dt/-29.8.2007

Sharma


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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