The Allahabad High Court on Friday stated that the provisions of the New Acquisition Act 2013 will not apply to the land acquired under the old Land Acquisition Act. If the land has been acquired under the old law, then relief cannot be sought under the provisions of the new law.
The Division Bench of Justice MC Tripathi and Justice SK Pachauri passed this order while hearing Writ Petition filed by Kalawati Devi.
In the Petition, the Petitioner claims to be Bhumidhar with transferable rights of plot no.424/1 area 1 bigha & 10 biswa and plot no.424/2 area 5 biswa situated in Village Jhunsi Kohna, Pargana Jhunsi, Tehsil Phoolpur District Prayagraj.
A notification under Section 28 of the Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 was issued on March 8, 1979, which was published in the official gazette April on 14, 1979. The notification reflects that the Uttar Pradesh Avas Evam Vikas Parishad has framed a scheme in the name of “Jhunsi Bhoomi Vikas Evam Grih Sthan Yojna-2, Allahabad” for solving the housing problems in the city of Prayagraj.
Thereafter, a notice under Section 29 of the Adhiniyam, 1965 was issued. It is claimed that the Petitioner along with her co-tenure holder Shanti Devi daughter of Girdhari Lal filed objection on May 2, 1979.
It is claimed that inspite of the objection dated May 2, 1979 finally the publication under Section 32 of the Adhiniyam, 1965 was issued. It is also claimed that no opportunity or notice was ever accorded to the Petitioner under Section 9 of the Land Acquisition, 1894.
In the said matter initially an interim order was passed on February 15, 1992 restraining the respondents from carrying out any demolition of the disputed constructions till February 17, 1992 and also restrained the petitioner to make any construction over the disputed property.
Anupam Kulshreshtha, Counsel for the Petitioner has vehemently contended that the provisions of Section 24 (2) of the Act, 2013 would apply to the acquisition undertaken under the Adhiniyam,1965 in view of the provisions of Section 55 of the Adhiniyam, 1965.
The Advocate has submitted that as neither the possession has been taken nor the compensation has been paid, therefore, the acquisition would lapse.
He has further stated that the alleged possession dated June 27, 1986 is also unsustainable in view of the principles settled by Apex Court in Banda Development Authority, Banda v. Motilal Agrawal & Ors7. The possession memo must be signed by the owner of the land and two independent witnesses if crop or constructions are existing and merely going on spot by the authority concerned would not suffice for justifying the possession.
Nipun Singh, Counsel for the Parishad has also placed reliance on the averments contained in para 5 and 6 of the counter Affidavit filed on behalf of Parishad dated January 30, 2021, wherein, a categorical stand has been taken that regarding land in dispute being Khasra No.424/1 the respondents had taken physical possession way back, and to this effect the possession certificate had also been given by the SLAO to the Parishad.
The Counsel for the Petitioner relating to lapsing of acquisition under Section 24 (2) of the Act, 2013 when the land was acquired under the provisions of the L.A. Act would, therefore, not come to the aid of the Petitioner.
In view of above, it is not possible to accept the contention of Counsel for the Petitioner that Section 24 (2) of the Act, 2013 would be applicable to the acquisitions made under the Adhiniyam, 1965.
The writ Petition was dismissed with observation that the acquisition proceedings were not stayed by the Court, therefore, the land acquisition proceeding must have been culminated/ formalised and the award must have been passed. In the circumstances, once the award has been made, it was not open for the Petitioner to challenge the notification under Section 28 of the Adhiniyam, 1965 and the impugned notice which is analogous provisions to Section 4 of the LA Act.
“The Court may review to correct errors of law or fundamental procedure requirements, which may lead to manifest injustice and can interfere with the order in exceptional circumstances. The power of judicial review of the writ court is limited, but it has competence to examine as to whether there was material to form such opinion as required by law or the finding recorded by the authority concerned are perverse”, the Court said.
“In view of the legal proposition, it emerges that land can be acquired for public purpose, the expression “public purpose” cannot be defined by giving a special definition as the same cannot be fitted in a straight jacket formula”, the Court observed.
The Court stated that the facts and circumstances of the case, we are of the considered opinion that at this belated stage we cannot permit the Petitioner to revive the dead and stale claims. The stale and dead claims cannot be permitted to be canvassed on the pretext of enactment of Section 24.
“In the facts and circumstances, so far as determination of quantum of compensation, principles will have to be applied in relation to acquisition made by Parishad under the Adhiniyam, 1965. Consequently, for all the reasons the reliefs claimed in the writ Petition with regard to lapse of acquisition proceeding cannot be available to the Petitioner”, the order reads.
However, it is always open to the Petitioner to move appropriate application to get the compensation, the Court said.
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