Court No. - 3
Case :- WRIT - C No. - 2274 of 2019 Petitioner :- Chandra Kumar Rai And Another Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Pradeep Kumar Rai Counsel for Respondent :- C.S.C.,Sudhanshu Srivastava
Hon'ble Pankaj Kumar Jaiswal,J.
Hon'ble Dr. Yogendra Kumar Srivastava,J.
Heard Sri Pradeep Kumar Rai, learned counsel for the petitioners and Sri Sudhanshu Srivastava, learned counsel appearing for respondent no. 3 National Highway Authority.
By means of this writ petition under Article 226 of the Constitution of India, the petitioner is praying for quashment of order dated 5.12.2018 passed by the Prescribed Authority/Additional District Magistrate (Finance & Revenue), Mau [Annexure No. 1] and also prayed for issuance of writ of mandamus directing the respondents to realize the excess amount from the respondent nos. 4 and 5 and pay the compensation to the petitioner.
Brief facts of the case is that one-half share of plot no. 254 at Village Khukhunduwa, Tehsil Sadar, District Mau was purchased by Shiv Bansh (father of the petitioners) from Kamlesh Kumar vide registered sale-deed dated 12.4.2007. Consequent to the sale deed the said plot no. 254 came to be recorded into two separate khatas as plot no. 254 M (i) to the extent of 0.1820 hectare in each khata. It is the case of the petitioners that by notification under Section 3 (D) of the National Highways Act plot no. 254 admeasuring 0.118 was acquired for the purpose of widening/construction of NH-29. In the said notification, the name of Santosh Kumar s/o Kripal, Lal Chand s/o Ram Swaroop, and Shiv Bansh were mentioned but when compensation was to be paid, no compensation was offered to the petitioners or their deceased father. Accordingly, the petitioners moved an application before the Competent Authority/Additional District Magistrate (Finance and Revenue), Mau for payment of compensation. By the order impugned dated 19.09.2018, the Competent Authority has rejected the application of the petitioners by observing that the portion of land, pertaining to plot no. 254, which was acquired for NH 29 did not belong to the petitioners.
The grievance of the petitioners is that plot no. 254 has not been divided by metes and bounds and each share holder of the said plot would, therefore, be owner of every inch of the plot and the compensation has to be distributed rateably according to the share of each share holder. The petitioners have challenged the said order by filing Writ-C No. 35133 of 2018 and the coordinate Division Bench of this Court vide order dated 25.10.2018 allowed the writ petition and directed the Competent Authority to re-examine the matter and decide the same afresh after giving opportunity of hearing to all the concerned parties including the other recorded tenure holders of plot no. 254. The relevant portion of the order aforesaid reads as under;
"The petitioner has enclosed the sale deed executed in favour of the father of the petitioners as Annexure No. 6. From a perusal thereof, at page 40, it appears that Kamlesh Kumar had sold his entire 1/2 share in plot no. 254 to the father of the petitioners. It is not clear from the sale deed as to whether the share of Kamlesh Kumar in plot no 254 had been demarcated and separated by a partition between the share holders.
Under the circumstances, the competent authority (the second respondent) must re-examine the matter and take a fresh decision after giving opportunity of hearing to all parties concerned including the other recorded tenure holders of plot no. 254.
In view of the above and keeping in mind that the order dated 19.09.2018 is a non-speaking order, and has been passed without properly examining the documents, we consider it appropriate to set aside the order dated 19.09.2018 passed by the second respondent and direct the second respondent to decide the claim of the petitioner afresh in accordance with law, after giving opportunity of hearing to all the parties concerned including the other recorded share holders of plot no. 254, and by keeping in mind the provisions of Section 3-H of the National Highway Act, 1956. Such fresh decision be taken within a period of eight weeks from the date of filing of certified copy of this order.
It is made clear that we have not expressed any opinion as to whether plot no. 254 had been partitioned or not as also whether the portion that has been acquired was in the share of the petitioners or not. Fresh decision shall taken in that regard by considering the evidence led by the parties.
The petition stands allowed to the extent indicated above."
In pursuance to the order passed by this Court on 25.10.2018, the petitioners filed a detailed representation before the Prescribed Authority on 5.11.2018 and, thereafter, notice was issued to all the tenure holders of plot no. 254 including the petitioners fixing the date for hearing on 29.11.2018. After hearing the parties, spot inspection was made by the Prescribed Authority and as per the spot inspection report total area of plot no. 254 is 0.363 hectare and recorded tenure holder of the said plot were Bramhadev Tiwari, Hardev Tiwari, Santosh Tiwari, Jaigovind Tiwari all sons of Ram Kripal Tiwari. Bramhadev Tiwari transferred his share by executing a registered sale-deed in favour of Kamlesh Rai s/o Aniruddh Rai. Thereafter, Kamlesh Rai executed registered sale-deed in favour of Shiv Bansh (father of the petitioners) and after death of Shiv Bansh names of present petitioners were recorded in the revenue record as tenure holders in respect of the area which has been purchased by their father. One-fourth share of Jaigovind @ Hargovind s/o Ram Kripal was purchased by Lal Chand s/o Ram Swarup, which is situated towards west side. As per present Khatauni fasli year 1420-1425 of plot no. 511 the co- sharer of original tenure holder Santosh Tiwari s/o Ram Kripal Tiwari. Plot No. 254, which is a minjumla number, is divided into two parts i.e. gata no. 511/0.181 hectare and gata no. 454/0.1820 hectare. As per the Khatauni fasli year 1420-1425 gata no. 511 is recorded in the name of Lal Chand s/o Ram Swarup and gata no. 454 is recorded in the name of heirs of Shiv Bansh, the present petitioners and, as such, the land of petitioners and private respondents is divided in separate gata numbers. As per the said spot inspection report, the land of the petitioners is situated towards east side and land of Lal Chand and Santosh Kumar is towards western side of the boundaries of the plot no. 254 M (i) of gata no. 511. The area admeasuring 0.118 hectare of plot no. 254 Minjumla was acquired for the widening of road and same is towards western side and belongs to Lal Chand s/o Ram Swarup and Santosh Kumar s/o Kripal.
From the aforesaid, it is clear that the land of the petitioners was never acquired for widening of road and learned Prescribed Authority after considering the documents on record and inspecting the spot in question came to the conclusion that land of the petitioners was never acquired by the respondent nos. 2 and 3 and, therefore, the representation dated 5.11.2018 filed by the petitioners, has been rejected vide order impugned dated 5.12.2018.
On due consideration of the reasoning, which has been recorded by learned Prescribed Authority on the basis of spot inspection and documents filed by the petitioners and other tenure holders, we are of the view that learned Prescribed Authority has not committed any legal error in rejecting the prayer of petitioners for grant of compensation. Learned counsel for the petitioners has failed to point out any material to prove that any part of the land which was purchased by Shiv Bansh (father of the petitioners) was acquired for widening of road. The reasoning assigned by learned Prescribed Authority is based on appreciation of facts and material, which has been provided by the petitioners and other co-tenure holders.
Writ petition filed by the petitioners has no merit and same is, accordingly, dismissed.
Order Date :- 27.2.2019 Shekhar [Dr. Y. K. Srivastava, J.] [Pankaj Kumar Jaiswal, J.]