Heard learned counsel for the petitioner and learned standing counsel for the respondents.
Through this writ petition prayer for quashing orders dated 02.04.1988 and 29.12.1997 (Annexures VI & VII to the writ petition) was initially made. Thereafter through amendment a prayer was added for a writ of mandamus directing Special Land Acquisition Officer, Ghaziabad to pay balance amount of compensation for land of the petitioner acquired through notification dated 10.03.1988. Annexure-VI is an order passed in Case No.50 of 1986-1987 under Section 154/ 167 of U.P.Z.A. & L.R. Act, State Vs. Hindan River Co-operative Society Ltd. Through the said order it was directed that possession of the agricultural land acquired by the petitioner co-operative society after 31.03.1983 ad-measuring 35.5 bighas (22.5 acres) shall be delivered to the State Government by the Tehsildar within 15 days. Against the said order, Revision No.29 of 1987-88 was filed by the petitioner which was dismissed by Commissioner, Meerut Division, Meerut through order dated 29.12.1997.
However before passing of the first order dated 02.04.1988, the said land along with other land had been proposed to be acquired under Land Acquisition Act by issuing notification under Section 4 of the Act on 10.03.1988. Section-6 notification was issued on 08.07.1988.
In Annexure-VI it is mentioned that the petitioner had acquired more than 12.5 acres land and it was void under Section 154 of U.P.Z.A. & L.R. Act. Proceedings were initiated on the basis of report of S.D.O. dated 25.06.1987. Annexure-VI was passed by Collector, Ghaziabad.
The case of the petitioner was that it had more than 300 members and all the members had been allotted plots of land ad-measuring 266, 400, 500 and 1000 square yards after development of the land and about 50% of the land purchased by petitioner society was used for roads, park, school, post-office etc. The appellate court in its judgment dated 29.12.1997 mentioned that in case there was any grievance or dispute regarding compensation for land acquisition then the same could be addressed before competent authority.
In Para-6 of the writ petition, it is mentioned that after developing the land in dispute and dividing the same into plots, 175 members of the society were allotted the plots before 1987. In Para-10 it is mentioned that possession of the whole colony was taken on 10.05.1989 pursuant to notifications dated 10.03.1988 and 08.07.1988 under Sections 4 and 6 of Land Acquisition Act. Thereafter in Para-11 it is mentioned that petitioner wrote a letter to the S.L.A.O. on 27.03.1990 asking for the compensation as possession had been taken from it and handed over to NOIDA for which the land was acquired. Thereafter in Para-12 it is mentioned that part of the compensation was paid by NOIDA to the petitioner and the members of the petitioner society who were allotted plots by it were permitted to remain in possession by the NOIDA. In Para-24 of the writ petition, it is mentioned that NOIDA has acquired the said land and has paid compensation to the petitioner. In the affidavit filed in support of amendment application which has been allowed on 16.08.2010, it has been stated that only part of compensation has been paid and balance compensation is not being paid due to pendency of the litigation.
Notice under Section 154 of U.P.Z.A. & L.R. Act had been issued on 25.06.1987, i.e. prior to notification under Section 4, Land Acquisition Act which was issued on 10.03.1988. Under Section 154, U.P.Z.A. & L.R. Act, purchase of agricultural land in excess of 12.5 acres is void ab initio. Further by virtue of Section 167(a) of U.P.Z.A. & L.R. Act, in case of such void transfer, the following consequence ensues:
"The subject matter of transfer shall with effect from the date of transfer be deemed to have vested in the State Government free from all encumbrances."
Accordingly, State could very well treat the said land to have vested in it and exclude the same from Section 4 notification. However taking possession under Section 154, U.P.Z.A. & L.R. Act takes a long time and appeals, revisions etc. are also provided, which consume further time. On the other hand under Land Acquisition Act, possession can promptly be taken. In the instant case also possession was taken on 10.05.1989 while revision against order under Section 154 of U.P.Z.A. & L.R. Act was decided in December, 1997 (after eight years) and writ petition is being decided after 21 years. It appears that in order to avoid the delay, the government proceeded to acquire the land in dispute under Land Acquisition Act. In such situation the government cannot refuse to give compensation to the petitioner particularly when petitioner is a co-operative society and compensation is to go to its members. The government had an option either to proceed under Land Acquisition Act or under Sections 154, 166 & 167 of U.P.Z.A. & L.R. Act. Having acquired the land and taken possession thereof under Land Acquisition Act, government exercised its option in one way. It cannot be permitted to take advantage of beneficial part of each of the two provisions, i.e. taking possession under Land Acquisition Act and denying compensation under U.P.Z.A. & L.R. Act.
Accordingly, it is directed that compensation of the entire acquired land of petitioner society (except the land left with its members as mentioned in Para-12 of the writ petition) shall be paid to the petitioner co-operative society for utilisation of the same for the benefit of its members. Writ petition is accordingly allowed.
Order Date :- 04.07.2011 NLY