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New Okhla Industrial Development Authority v. Ist A.D.J.,Ghaziabad & Others - WRIT - C No. 33848 of 1999 [2005] RD-AH 6912 (5 December 2005)


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Court No.26

Civil Misc.Writ Petition No.33848 of 1999

New Okhla Industrial Development Authority


     Ist Additional District Judge, Ghaziabad and others

Hon.Shishir Kumar, J.

The present writ petition has been for quashing the order-dated 6.5.1999 passed by Ist Additional District Judge, Ghaziabad and the order dated 13.1.1995 passed by the Prescribed Authority, Noida, Ghaziabad under sections 4 and 2 respectively to the writ petition.  Further prayer in the nature of mandamus commanding the respondent No.2 to handover the vacant possession of the disputed land Khasra No.775, area 0-11-0 situated at village Baraula, Pargana & Tehsil Dadri, District-Ghaziabad.

The petitioner is an authority created under the provisions of the U.P.Industrial Area Development Act, 1976 (U.P. Act No.6 of 1976) and is a corporate authority within the meaning of the provisions of the U.P. Public Premises (Eviction of Unauthorized Occupants )Act, 1972.  That vide Notification dated 1.6.1976 under section 4 of the Land Acquisition Act, the State Government for the purposes of acquisition notified the agricultural land Khasra No.775 situated in the aforesaid village. After completing all the formalities the land Khasra No.775 area 0-11-0 situated in village Baraula, Pargana and Tehsil Dadri, District Ghaziabad was delivered to Noida and the possession of which was taken over by the Noida authority on 28.10.1976.  The respondent Nos. 3 and 5 without any authority and title tress-passed over the said land since 1.3.1978 and started raising construction.  The petitioner moved an application before the Prescribed Authority, Nodia, Ghaziabad for eviction and recovery of damages from the respondent Nos. 3 and 4 and notices were issued and reply was invited from the respondents.  In support of his case petitioner examined Sri Narendra Kumar Sharma, Lekhpal and also adduced documentary evidence but the prescribed authority vide its order dated 13.1.1995 dismissed the application of the petitioner.

Aggrieved by the aforesaid order, the petitioner preferred an appeal, which was numbered as Miscellaneous Appeal No. 43 of 1995, under section 9 of the U.P. Public Premises (Eviction of Un-authorized Occupants Act, 1972) in the Court of District Judge, Ghaziabad.  The appellate authority has also dismissed the appeal vide its order dated 6.5.1999.

Aggrieved by the aforesaid order the petitioner has approached this Court.

It has been submitted on behalf of the petitioner that both the Courts below have not considered that admittedly the Plot No.775, area 0-11-0 was acquired under the Land Acquisition Act and the possession of the said land was taken over on 28.10.1976.  The respondent No.3 without any authority of law has raised certain construction in the month of March, 1978 without any title.  It has also been submitted on behalf of the petitioner that the respondent Nos. 3 and 5 are not able to show any title of the land in dispute, therefore, both the authorities have committed an illegality by dismissing the appeal as well as the application under section 4 of the Un-authorized Occupants Act.

It has also been submitted on behalf of the petitioners that even assuming without admitting this fact that the respondents were in possession of the land in dispute but on the date of acquisition it will be presumed that the possession has already been taken and if certain construction has been made subsequently that will be treated to be illegal. It has also been submitted on behalf of the petitioner that the respondents have failed to prove the title and they have not produced any document or sale deed to show that the said land was not acquired on the date of notification under the Land Acquisition Act because the Government Order dated 25.1.1987 does not specified the period of occupation of the members of the scheduled castes community and the Government Order is not a statutory or mandatory when the proceedings against the respondent Nos. 3 and 4 never initiated under the Public Premises Act, 1972.  Therefore, the Court below was not justified in giving the rights of possession entitled in proceeding of Public Premises Act. It has further been submitted on behalf of the petitioner that immediately after acquisition the land has been vested to the authority and the possession of any person will be unauthorized.  Both the authorities have clearly failed to consider this aspect of the matter and as such, the judgment passed by both the authorities are liable to be set aside.

On the other hand the counsel for the respondents Sri S.S.Shukla has submitted that he is in possession of the land in dispute prior to the notification under section 4 of the Land Acquisition Act.  The said land was purchased by the respondents on 25.6.1976.  After paying the amount of Rs.13,720/- the petitioner being a scheduled castes is not liable for ejectment.  He has placed reliance upon the statements of Lekhpal of the village and other witnesses who have stated that the disputed land belonging to schedules castes and it has also been stated that the State Government has issued a notification dated 21st May, 1987 that if a person belonging to scheduled caste is in possession of certain land he will not be ejected. Therefore, both the authorities have come to the conclusion that on the land, which the respondents and other persons are living, no scheme can be formulated by the Noida authority.

I have heard learned counsel for the petitioner and the counsel for the respondents and have perused the record.

From the record, it is clear that the notification under Section 4 was issued for acquiring the said and nearby land and the persons who were in possession they have been awarded compensation in lieu of land acquired. From the record, it is also clear that the respondents alleged to be in possession of the said land from 1.3.1978. They are not able to show any document that they are in legal and valid possession of the said land.  They alleged that they have purchased the said land from one Sukhram Haria and Begraj S/o Haria and Smt. Champi Devi W/o Ami Chand.  They are not able to produce any registered sale deed to this effect before any authority.  It is also relevant to mention here that the total land for which the land acquisition proceeding was initiated and the land acquisition officer has adjudicated the matter and has directed that they are entitled to compensation in lieu of the land acquired.  The respondent submits that he has not taken compensation  as he has constructed the house on the disputed land.

In my opinion, this will not defeat the rights of the parties.  The State Government is authorized to acquire the land by issuing a notification and the owners of that land are entitled to get the compensation.  The compensation has been adjudicated by the relevant authority but if the compensation has not been taken by the tenure holders, they cannot say that they may be permitted to be remain in possession.  It is not the case of the respondents that proceeding under sections 4 and 7 of the Unauthorized Occupant Act was not maintainable.  The authorities below have clearly misread the relevant provisions, which was necessary for the just disposal of the aforesaid case.  It is well settled in law that person claiming a right has to establish his right on the basis of the relevant and valid document.  The respondent himself has admitted this fact that he has purchased the said land but no sale deed or any document has been filed by the respondents to show that the same was purchased prior to issuance of notification under section 4.  In my opinion, it will not make any difference.  If the respondent is valid owner of the said land he may be entitled for compensation.  If there was construction and that land was not feasible for the purposes of acquisition then immediately after the notification an objection to that effect should have been raised by the respondent but the same has never been raised by the respondents and the adjudicating authority under Land Acquisition Act has already determined the compensation in lieu of the land acquired.

As regards, the judgment relied by the counsel for the respondents,  Raj Kumar Divender Singh Vs. State of Punjab and others reported in AIR 1973 Supreme Court 66.  The reliance has been placed upon Paras 5 and 8 of the said judgment.  I have perused the said judgment.  The said judgment is not applicable in the case of the petitioner.  The controversy before the Apex Court was that if a particular land has been sold to the government, the person who is in occupation of the said land whether he can be treated to be unauthorized occupant.  The present case is regarding acquisition under the Land Acquisition Act, therefore, the judgment cited by the respondents will not be applicable.

On the other hand, the judgment relied upon by the petitioner in Writ Petition No.6618 of 1984 Kishan Vs. VI Additional District Judge, Ghaziabad  clearly support the contention raised on behalf of the petitioner to the affect that as soon as the provisions of Sections 16 and 17(1) of the Land Acquisition is taken, the land along with the construction would vest in the Collector or the State.

In the Division Bench judgment of this Court in J.Prakash Versus State of U.P. 1988 (1) A.R.C. 265, it was held that where a portion of the property acquired was in possession of sub-tenants or licensees, it will not be necessary that each one of them should be dispossessed to complete the taking of possession and that a symbolic possession will be sufficient to complete the acquisition under the Act to make the occupant trespasser. Such possession may be technically called symbolical, but substantially it is complete possession so far as the owner, tenant or the licensees are concerned.  In such a way, the respondents cannot claim any right over the property, as well as the competent authority under the Land Acquisition Act has adjudicated the matter regarding compensation.  As no point of time the respondents have challenged the acquisition proceeding, therefore, after the notification and after taking the possession the petitioner will be treated to be unauthorized.

In view of the aforesaid facts and circumstances, in my opinion, both the authorities respondent Nos.1 and 2 have committed an illegality in dismissing the application filed by the petitioner. Therefore, I am of the view that the orders dated 6.5.1999 and 13.1.1995 (Annexures 4 and 2 respectively) are liable to be quashed and it is open to the petitioner to take the possession of the land in dispute from the respondents.  Interim order, if any, is hereby discharged.

                  There shall be no order as to costs.




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