Court No. - 39
Case :- WRIT - C No. - 35975 of 2018 Petitioner :- Mahesh And Another Respondent :- State Of U P And 3 Others Counsel for Petitioner :- Pankaj Dubey,Rishu Mishra Counsel for Respondent :- C.S.C.,Kartikeya Saran
Hon'ble B. Amit Sthalekar,J. Hon'ble Rajiv Joshi,J.
Heard Sri Pankaj Dubey, learned counsel for the petitioners, learned Standing Counsel for the respondents 1 and 2 and Sri Devesh Saxena, holding brief of Sri Kartikeya Saran, for the respondents 3 and 4.
The instant petition challenges an order dated 11/12.10.2018 passed by the fourth respondent pursuant to direction of this Court dated 29.05.2018 in Writ-C No.19802 of 2018.
A perusal of the petition would reveal that by notification dated 16.08.1988, under Section 4 of the Land Acquisition Act, followed by notification dated 22.02.1989, under Section 6/17 of the said Act, the land of the petitioners was acquired and possession on paper was transferred to Ghaziabad Development Authority on 14.06.1989 and, thereafter, an award was also passed on 30th July, 1991. The petitioners claim that they continue in possession and have not accepted compensation, therefore the land acquisition proceedings have lapsed under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. Accordingly, when notice was issued to the petitioners to remove their encroachment from over the land, they challenged the notice by filing Writ-C No.19802 of 2018, which was disposed of vide order dated 29.05.2018 by requiring the authorities to take an appropriate decision after giving opportunity of hearing to the petitioners. Pursuant to that direction, the impugned order has been passed on 12.10.2018 disclosing that notification for acquisition was issued on 22.02.1989, possession was taken and transferred to the Ghaziabad Development Authority and an award was also passed and that the petitioners are mere encroachers who are liable to be evicted under Section 26-A of the U.P. Urban Planning and Development Act.
The learned counsel for the petitioners has assailed the order impugned by urging that a separate petition (i.e. Writ-C No.5422 of 2015) has been filed by the petitioners challenging the acquisition proceeding on the ground that the same stood lapsed by operation of law in view of the statutory provision of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. It is the case of the petitioners that the said writ petition is still pending. It has been submitted that since the claim of the petitioners is yet to be adjudicated, the effect and operation of the order dated 12.10.2018 passed by the Ghaziabad Development Authority should be kept in abeyance.
The aforesaid contention of the learned counsel for the petitioners cannot be accepted in separate proceedings because here a finding has been returned in the impugned order that pursuant to the notification of the year 1988/89, possession was taken in the year 1989 and thereafter an award was also passed, therefore, once that is the position, unless there is an adjudication in favour of the petitioners in the pending writ petition, the petitioners cannot separately raise a claim to protect their possession. Under the circumstances, without expressing any opinion on the merits of the claim of the petitioner as regards their rights, if any, under Section 24(2) of the Act, 2013, this petition is disposed of by giving liberty to the petitioners to move application in the pending Writ-C No.5422 of 2015.
Order Date :- 29.10.2018 N Tiwari