The Allahabad High Court has observed that when the process of land acquisition is completed and the government has taken possession of the land, it can’t be expected to keep the police stationed there at all times to maintain physical possession.
The Division Bench of Chief Justice Rajesh Bindal and Justice Piyush Agrawal made this observation while hearing a petition filed by Shyoraj Singh and another.
The petition has been filed by the petitioners against the notice dated August 10, 2021 issued by UP State Industrial Development Corporation directing the petitioners to remove the unauthorized construction raised on the land which was already allotted to an industrial unit, otherwise action was to be taken against the petitioners in accordance with law.
Further prayer has been made seeking a direction to the State Government to decide the application filed by petitioners under Section 48 of the Land Acquisition Act, 1894.
Counsel for the petitioners submitted that the land was sought to be acquired for the use by Corporation. Emergency provisions of Section 17 of the 1894 Act were invoked. Notification under Section 6 was issued on April 15, 1986. Thereafter, the award was passed by the Land Acquisition Officer (LAO). The possession of the land was never taken by the State.
The petitioners have raised construction thereon where a cow-shed and a school is running with about 400 students studying therein. The project for which the land was acquired has already been completed and the land in question is surplus.
He further referred to Section 17 of UP Urban Planning and Development Act, 1973 to state that in case acquired land is not utilized for a period of five years, the landowner can seek to return the same back to him. In the case in hand, for the last about three decades land in question has not been utilized, hence, petitioners have a right to get their land back. They are ready to deposit the compensation back.
Though not pleaded in the petition, the counsel for the petitioners also sought to invoke the provisions of Section 101 of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 to submit that even in terms of the aforesaid provision, land in question deserves to be returned back to the petitioners as the land was not utilized within five years of acquisition. They will suffer irreparable loss. As regards allotment of the land to any other person, as has been mentioned in the show cause notice, the argument raised is that neither any lease-deed has been executed by the Corporation in favor of the allottee nor any construction has been raised by him, hence, otherwise also that allotment has to be canceled.
The counsel for the State submitted that the petitioners do not have any right to claim that the land, which already stood acquired and for which the compensation has admittedly been received by the petitioners, be returned back to them. The acquisition proceedings having been completed, the petitioners do not have any right to invoke Section 48 of 1894 Act. The possession of the land was taken immediately after acquisition and handed over to the Corporation, which had even carved out plots and sold them to a number of allottees. Merely because on some portion of the land, the petitioners have made certain construction after encroaching upon the same, will not entitle them to claim its release from acquisition.
The provisions of Section 17 of the 1973 Act will not come to the rescue of the petitioners for the reason that the land in question was utilized immediately after acquisition as it was transferred to the Corporation. The development activities started immediately and the industrial estate was developed.
The provisions of Section 101 of the 2013 Act are also not applicable to the case in hand as the acquisition in question is not under the Act. The counsel for the State further submitted that it is too late to allow the petitioners to challenge the acquisition which already stood completed way back in 1987-88 that too after receiving compensation alleging that provisions of Section 17 of 1894 Act were wrongly invoked. The application under Section 48 of 1894 Act was filed by the petitioners only after notice was issued by the Corporation to the petitioners for removal of encroachment made on the part of the land.
The petitioners otherwise also cannot invoke the provisions of Section 48 of 1894 Act as the possession of the land in question was taken immediately after acquisition and the same was transferred to the Corporation, which in turn had even allotted the plots carved out thereon. Any construction raised by the petitioners was unauthorized.
In response, counsel for the petitioners submitted that even as per the notice issued to the petitioners, the allotment of plot was made by Corporation in 2007. It was much beyond the five years period as provided in Section 17 of the 1973 Act and Section 101 of the 2013 Act. Hence, the land was not utilized before that.
The Court noted, the basic facts, which are not in dispute in the petition, are that notification under Section 4 of 1894 Act, was issued on April 11, 1986. After invoking the provisions of Section 17 of 1894 Act dispensing with the filing of the objections under Section 5-A thereof, notification under Section 6 of the 1894 Act was issued on April 15, 1986.The award was pronounced by the LAO immediately thereafter.
It remained undisputed that the petitioners’ land was acquired and they had also received the compensation in terms of their entitlement. The stand taken by the respondents is that immediately after acquisition process of the land was completed, the possession thereof was taken from the landowners and it was handed over to the Corporation for development as an industrial estate.
In fact, the industrial estate stands developed and the plots have been allotted to various persons where industrial units have also been set up. Even in the case of the petitioners, in the show-cause notice issued to them for removal of unauthorized construction, it has been stated that a plot carved out thereon has been allotted.
As far as the argument raised by counsel for the petitioners for invoking Section 17 of the 1973 Act is concerned, the same is to be noticed and rejected.
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The Court observed that, a perusal of Section 17 of the 1973 Act shows that in case the acquired land is not utilized for a period of five years from the date of its acquisition, the land owner can apply to the State for restoration thereof. If the State Government is satisfied that the land had not been utilized for a period of five years for the purpose it was acquired, it can order restoration thereof to the landowners on repayment of the amount incurred for acquisition along with interest thereon including the development charges, if any.
In the case in hand, the definite stand of the State on the record is that immediately after acquisition of the land, which was for development of an industrial estate by the Corporation, the possession thereof was taken and handed over to the Corporation which had even carved out the plots thereon and industrial estate stood developed. Number of industrial units are operating.
The Court further noted, a perusal of notice dated August 10, 2021, issued to the petitioners for removal of the unauthorized construction also establishes this fact. It is mentioned therein that the plot on which the petitioners had raised unauthorized construction is part of plot allotted to Amarjeet Kaur way back on September 28, 2007, hence the claim that petitioners are entitled to invoke Section 17 of the 1973 Act for restoration of the land to them on the ground that the same has not been utilized is totally misconceived and hence, deserves to be rejected.
The Court held, The issue as to what is meant by “possession of the land by the State after its acquisition” has also been considered by the Constitution Bench of Supreme Court in Indore Development Authority Vs. Manoharlal and others AIR 2020 SC 1496. It is opined therein that after the acquisition of land and passing of award, the land vests in the State free from all encumbrances.
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Keeping in view the above enunciation of law by the Supreme Court in Indore Development Authority’s case, in the case in hand on the undisputed facts on record it can safely be opined that in the case the acquisition proceedings stood completed. The award was announced, the compensation was received by petitioners, hence the land vested in the State with possession, free from all encumbrance.
In case, the petitioners have raised any construction, they are the trespassers and are to be dealt with as such. Once the possession of the land already stood vested in the State, no question arises for invocation of Section 48 of 1894 Act.
“In view of the aforesaid view expressed by the Constitution Bench of Supreme Court in Indore Development Authority’s case, even the argument raised for release of the land by invoking Section 101 of 2013 Act also deserves to be rejected as acquisition in question is not under the 2013 Act. For the reasons mentioned above, we do not find any merit in the petition. The same is, accordingly, dismissed,”
-the order reads.
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