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ANIL KUMAR VERMA & OTHERS versus CIVIL JUDGE (S.D.) ALLD. & OTHERS

High Court of Judicature at Allahabad

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Anil Kumar Verma & Others v. Civil Judge (S.D.) Alld. & Others - WRIT - C No. 35512 of 2003 [2005] RD-AH 5760 (16 November 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 37

Civil Misc. Writ Petition No. 39512 of 2003

Bhagwan Das and others Vs. State of U.P. and others.

****

Hon. R. K. Agrawal, J.

Hon. (Mrs.) Saroj Bala, J.

By means of the present writ petition filed under Article 226 of the Constitution of India, the petitioners, who are 12 in number, seek the following reliefs :-

"(i) to issue, writ, order or direction in the nature of  mandamus directing  the opposite parties not t interfere in the right, title and possession of the petitioners over the plot no. 579 are 5-3-10 situate in village  Chhalera Banger, Pargana  and Tahsil Dadri district Gautam Budh Nagar, except in accordance with law.

(ii) to issue writ, order  or direction in the nature of  mandamus directing  the opposite parties not to interfere in the possession of the  petitioners over the plot no.579 area  5-3-10 situate in village Chhalera Banger, Pargana  and Tahsil Dadri district Gautam Budh Nagar, by using force to take steps for changing the nature of the aforesaid  pot.

(iii) to pass such other and further order which this Hon'ble Court  may deem fit and proper  according to the circumstances of the case.

(iv) to award the cost."

Briefly stated the facts giving rise to the present petition are as follows. According to the petitioners their predecessor in interest were the owner of plot no. 579 having an area of 13-15-0 situate in village Chhalera Banger, Pargana and Tahsil Dadri district Gautam Budh Nagar. Vide notification dated 20.8.1988 issued under sections 4 and 6 of the Land Acquisition Act, herein after referred to as the Act, an area of 5-3-10 from the aforesaid plot no. 579 was proposed to be acquired in favour of the P.W.D. U.P. to construct the Okhla Bairaj Link Road. According to the petitioners, except for issuing notification dated 20.8.1988 no further step was taken by the State Government or its authorities for taking over possession of the aforesaid land nor any award has been made. Thus, there was no question of paying any compensation in respect of the aforesaid area. The remaining area of 8-1-10 of plot no. 579 has been acquired under the aforesaid Act. for NOIDA authorities in respect of which there is no dispute. The case of the petitioners is that the NOIDA authorities are interfering with the possession of the petitioners over an area of 5-3-10 which have not been acquired by any of the authorities.

Counter and rejoinder affidavits have been exchanged between the parties and with the consent of the learned counsel for the parties the writ petition is being heard at the admission stage itself  in accordance  with the Rules of the Court.

We have heard Sri M.D. Singh Shekhar, learned counsel for the petitioners, Sri C. B, Yadav, learned Chief Standing Counsel who represents respondent nos. 1, 2, 4 to 6 and Sri Arvind Srivastava, who represents respondent no.3.

Learned counsel for the petitioners submits that an area of  5-3-10 in plot no. 579 has not been acquired by any of the authorities,  the NOIDA authorities cannot interfere with or put  any restriction on the peaceful enjoyment and possession of the petitioners over the land in question. He invited the attention of this Court to the averments made in the counter affidavit filed by Brahma Pal, Executive Engineer, Provincial Division, P.W.D., Gautam Budh Nagar, on behalf of the respondent no. 2 in which it has been stated that acquisition of plot no. 579 having an area of 5-3-10 was not done as after the notification upon a survey being made, the Okhla Bairaj Link Road was modified and the possession was also no taken over. He thus submitted that the respondent no. 3 cannot put any restriction or interfere with in the peaceful enjoyment of the petitioners in respect of that area.

Sri Arvind Srivastava appearing on behalf of respondent no. 3 has submitted that the petitioners have been paid full compensation in accordance with law in respect of an area of 8-1-10 in respect of plot no. 579 and, therefore, the petitioners cannot raise any dispute. According to him the respondent no. 3 is not interfering in the peaceful possession of the petitioners in respect of the remaining part of the land in question.

Faced  with the averments made in the counter affidavit filed by Sri  Brahma Pal, that the land in question had neither been acquired finally nor the possession taken over in the year 1988, the learned Standing Counsel sought indulgence from the Court to obtain instructions in the matter when the Court  was in the midst of the hearing of the petition. In order to ensure that injustice may  not be done to any of the parties, the Court vide order dated 21.10.2005 deferred the hearing to 24.10.2005 and thereafter on the  request of the learned Standing Counsel to 8.11.2005 and on that day again adjourned it to be listed in the next cause list, i.e., for 16.11.2005. However, we are constrained to observe that despite the indulgence shown by the Court by deferring  the hearing for about  3 weeks, no material has been placed on record to show that the land in question has been acquired subsequently or the possession had been taken over  under some valid order.

Sri C. B. Yadava, learned Chief Standing Counsel, who appears on behalf of the State-respondents submitted that under the notification dated 4.8.1988 the petitioners' land having an area of  5-3-10 in plot no. 579 had been acquired under section 4 read with section 6 of the Act wherein the governor has  dispensed with the provisions of  section 5-A of the  Act and has directed the Collector to take possession of the land by exercising power  conferred under section 17(1) of the  Act. He further submits that as the land has been acquired there is no question of right of the petitioners being survived thereunder.

Having given our anxious considerations, we find that it is not disputed that the notification dated 4.8.1988 which has been issued under sections 4 and 6 of the aforesaid Act does provide that the land in question had been acquired for the purpose of construction of Okhla Bairaj Link Road and the Collector had been directed to take possession of the land in question by exercising power under section 17(1) of the aforesaid Act. However, from paragraph 4 of the counter affidavit filed by Brahma Pal, Executive Engineer on behalf of respondent no. 2, it has been stated that the land in question had not been acquired for the construction of Okhla Bairaj Link Road nor the possession has been taken over. It may be mentioned here that the Constitution protects the right of every persons from being deprived of his property. Article 300-A of the Constitution of India provides that no person shall be deprived of the right saved by the Constitution.That being the situation, the respondents are not entitled under the law to interfere with the peaceful possession and enjoyment of the petitioners in respect of the land in question.

In view of the forgoing discussions the writ petition is disposed of with a direction to the Collector, Gutam Budh Nagar to demarcate the area of 5-3-10 in respect of plot no. 579 situate in village Chhalera Banger, Pargana and Tahsil Dadri district Gautam Budh Nagar, excluding the portion of 8-1-10 from the said plot which has been acquired by the NOIDA authorities within a period of one month from the date a certified copy of the order is filed before him. It is made clear that the Collector, Gautam Budh Nagar shall give an opportunity to the petitioners and also to the respondents before demarcating the plot. However, to avoid taking any undue and unlawful advantage of this order for the failure of the State-respondent in bring on record any  material to show that the land in question has been subsequently acquired or possession has been taken over it is further  made clear that if the aforesaid area of plot no. 579 has been acquired subsequently by the State Government under the provisions of the Act or under any law in force, the process of demarcation shall not be taken. However, the petitioners shall be supplied copy of the order of acquisition. In the facts and circumstances of the case, there shall be no order  as to costs.

D/-16.11.2005

Mahmood


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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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