Hon'ble Ajit Kumar,J.
1. Heard Sri Mirza Faheem Beg, learned counsel for the petitioners, Sri M.C. Chaturvedi, learned Additional Advocate General assisted by Sri S.C. Dwivedi, learned additional Chief Standing Counsel appearing for the respondent- Mandi Samiti, learned Standing Counsel for the respondent Nos. 1 and 3 and perused the record.
2. By means of the present writ petition under Article 226 of the Constitution, the petitioner has challenged the notification of acquisition of the land under the Land Acquisition Act, 1894 vide notification dated 20th September, 2008. Initially, when the writ petition was entertained on 18th September, 2009, the interim order was passed for maintaining status quo on the ground that the subject matter for which the acquisition was made was not emergent one requiring immediate acquisition under Section 17(4) of the Act, 1894 doing away the compulsory enquiry under Section 5(A) of the said Act.
3. During pendency of the said writ petition, however, interim order was vacated on 26th November, 2009. Thereafter the matter was finally heard and writ petition was allowed vide detailed judgment and order dated 13th May, 2011. The said judgment and order came to be recalled by the same Bench in view of the recall application filed by the Mandi Samiti, namely, respondent No.2 on 30th March, 2012 by passing the following order:-
"We have heard Sri B.D. Mandhyan for the respondents in support of the recall application. Sri Mirza Fahim Beg appears for petitioner-opposite parties to the recall application.
In this writ petition filed by the eight petitioners, residents of Village Basai, Pargana & Tehsil Tundla, District Firozabad, have challenged the notification dated 29.07.2008 under Section 4 (1) read with Section 17 (1) of the Land Acquisition Act 1894, and the notification dated 30.08.2009, under Section 6 of the Act, in which enquiry under Section 5-A of the Act, was dispensed with on the ground of urgency in the construction of new market yard by Krishi Utpadan Mandi Samiti, Tundla District Firozabad.
An interim order was passed on 18.09.2009, directing the parties to maintain status quo. The stay matter was come up for hearing on 26.11.2009. After hearing the parties, the interim order dated 18.09.2009, was vacated on 26.11.2009. The order dated 18.09.2009, is quoted as under:-
"Sri B.D. Mandhayan, learned counsel for respondent no. 2 states that a counter affidavit was filed on 18.09.2009 and that due to the stay order, the construction of the Market Yard has been held up. Sri Anupam Kulshrestha seeks a weeks time to file rejoinder affidavit as well as the material which according to him will demonstrate that there was no urgency to dispense with enquiry under Section 5-A of the Land Acquisition Act.
Sri B.D. Mandhayan has relied upon number of judgments of this court, including the judgments of Supreme Court holding that the construction of Mandi Samiti is a matter of national urgency. It was held that while it may be true but there would be large number of cases where considering the urgency, in the very nature of the public purpose, Section 17(1) and Section 17(4) could both be invoked. In Smt. Sumitra Srivastava vs. State of U.P. (Writ Petition No. 43931 of 2008 decided on 04.09.2008), this court held that the acquisition for constructing market yard is a public purpose, which is urgent in nature. There are large number of decisions which hold that by its very nature, the project is of national urgency invoking Section 17(4) of the Act. Sri B.D. Mandhyan has also relied upon Bhagat Singh vs. State of U.P. AIR 1999 SC 436, Satyendra Prasad Jain vs. State of U.P. 1987 Alld WC 382, Hari Singh vs. State of U.P., in which constructions of market yard was treated to be urgent for acquisition of land.
List on 04.12.2009.
The interim order dated 18.09.2009 is vacated."
The writ petition come up for hearing on 13.5.2011.
Sri Mirza Fahim Beg, learned counsel for the petitioner was present. Sri B.D. Mandhyan assisted by Sri Satish Mandhyal could not appear to assist the Court.
The writ petition was partly allowed. Following the judgments of the Supreme Court in Anand Singh Vs. State of U.P. (JT 2010 (8) SC 15] and in Radhey Shyam (dead) through LRs (Civil Appeal No. 3261 of 2011) decided on 14.4.2011, the invocation of Sub section (1) of Section 17, sub section (4) of Section 17 of the Act in the notification under Section 4 of the Act dated 29.07.2008, was set aside. The notification under Section 6 of the Act was also set aside, keeping it open to the State Government to issue fresh notification, without applying the provisions of sub sections (1) and (4) of Section 17 of the Act, and to give notice to the tenure holders whose land was sought to be acquired, informing them that they are entitled to file their objections under Section 5-A of the Act, and thereafter to proceed in accordance with law.
Sri B.D. Mandhyan, learned counsel for respondents, filed an application on 25.5.2011, to recall the order on the ground that full facts and relevant material could not be placed before the Court, as he was busy in some other Court; his juniors also could not attend the case, and it was virtually decided exparte, on the basis of affidavit on records.
It is submitted by him that after the stay order was vacated on 26.11.2009, all the petitioners had entered into a compromise agreement with the Special Land Acquisition Officer and had agreed to accept the compensation of the entire land under the Agreement Rules of 1997. The agreement, after negotiations, was entered into at the rate of Rs.446 /- per sq. mtr. for 7.6090 hectare of land.
The proceedings of negotiations dated 11.8.2010 and the agreement dated 27.4.2011 have been annexed to the affidavit of Shri Devendra Kumar Pandey, Secretary, Krishi Utpadan Mandi Samiti, Tundla, Distt. Firozabad. The Market Committee has also annexed the affidavits of the petitioners affirming that they will accept the compensation. The Market Committee has annexed photographs of the construction of the administrative block, shops and the auction platforms, which are almost complete.
In para 10, 11, 13 and 14 of the affidavit of Shri Devendra Kumar Pandey, Secretary, Krishi Utpadan Mandi Samiti, Tundla, District Firozabad, it is stated:-
"10. That the A.D.M./ Land Acquisition, Agra wrote letter to the District Magistrate, Firozabad that in view of the rules framed by the State Government for payment of agreed compensation- known as Agreement Rules of 1995. Under that, agreement was entered into with the tenure holders and they have agreed to accept the compensation @ Rs.446/- per Sq. Meter and in respect of that they have filed the affidavit, they have filed the agreement and that has been considered and accepted by the Committee on 11.8.2010 and according to the agreement, Mandi Samiti has deposited Rs.389.31 lacs towards compensation of the land and one of the tenure holders has accepted Rs.74,850/- towards part payment as advance petitioenr also gave the undertaking to withdraw the writ petition. All the papers relating to the agreement and compensation are annexed herewith collectively and marked as Annexure-6 to this affidavit.
11. That it will not be out of place to mention that the chak road going through the land acquired for construction of principal market yard with the permission of the Gaon Sabha and that chak road has been resumed and in respect of that notification has also been issued on 20.5.2010 and in pursuance of the notification the mutation has also been made in the Khatauni by order dated 19.6.2010. The photo copy of the notification and extract of Khatauni 1413-1418 are annexed herewith and are being marked as Annexure-7 and Annexure-8 to this affidavit.
13. That as the Mandi Samiti has already spent about Rs.8 crores and odd on the compensation of the land and the construction, therefore, the decision may be rendered in the circumstances of the subsequent developments.
14. That the counsel for the respondents regrets for not being present, but matter was also decided hurriedly without waiting for the counsel or informing him to appear before the Court, but whole thing has been decided hurriedly. This has resulted in enormous situation and that can be remedied by this Hon'ble Court by recalling judgment and deciding it in the light of subsequent developments"
We were prima facie satisfied that the Court was not informed of the development, which took place after the stay order was vacated. The petitioners also did not inform the Court that they had agreed to accept the compensation after the interim order was vacated and the constructions of Market Yard have been raised and completed. The Market Committee also did not file any affidavit and brought on record these facts when the matter was decided. Consequently, we directed Sri B.D. Mandhyan to serve copy of the recall application on the counsel for the petitioners, and suspended the operation of the judgment dated 13.5.2011, on 31.5.2011.
We have heard learned counsel for the parties on the application for recall of the judgment dated 13.5.2011.
It is submitted by Sri B.D. Mandhyan that he could remain even present on the date when the writ petition was heard. He also could not bring to the notice of the Court that the possession was taken, and extensive construction of market yard, administrative block, auction platforms and shops were on the stage of completion, after spending about Rs. 8 crores. He submits that it was the duty of the petitioners to inform the Court that they had entered into agreement after negotiation, with the district authorities in presence of the District Magistrate, and that each of the petitioner has signed an affidavit accepting the compensation at the rate of Rs.446/- sq. mtr., which is the rate fixed for the farmers of the land for the Yamuna Express Way. One of the applicants has also received compensation. The compensation amount for the remaining petitioners is in deposit with the Special Land Acquisition Officer. They can always receive the same. After the possession was taken, constructions were raised and agreement for compensation was entered into with each of the petitioner, it was not open to the petitioners, to challenge the acquisition, as they were not under any compulsion, nor any such coercion was exerted on them.
In para 13 of the counter affidavit of the petitioners to the recall application, it is admitted by them that negotiations took place for compensation. It is denied that one Lata Keshwani, who is alleged to be paid compensation, has taken/withdrawn the same, as informed by her to the petitioners. In para 16 of the counter affidavit it is stated that petitioner No.1 Pankaj Kumar has entered into agreement is not only wrong, but also a mischief has been done by the officials of Mandi Samiti with petitioner No.1 inasmuch as signature of petitioenr No.1 was obtained on blank papers and the contents of which were not known to him.
A perusal of the proceedings of the meeting with the district administration in which the District Magistrate was also present and that signatures of farmers upon separate sheets including many petitioners and the affidavits would clearly demonstrate that negotiations had taken place and that the petitioners were ready to accept the compensation @ Rs.446/- per sq. mtr. They had also expressed their willingness to receive the amount approved by the committee.
In the counter affidavit to the recall application the facts that the possession was taken and the constructions of administrative block, shops etc., were made, have not been denied. It is also not denied that the Mandi Samiti has spent Rs. 8 crores, for making the constructions.
All these facts, which have now been pleaded in the recall application, were not on record when we heard the writ petition. The respondents did not file any affidavit that extensive constructions have been raised, of the value of about Rs.8 crores, and that all the petitioners have agreed to accept the compensation. These materiel facts, therefore, were not before us when we decided the writ petition.
Having regard to the facts and circumstances of the case, we find that it would be in the interest of justice, to hear the matter on merits, after giving opportunity to the parties, to place their case.
The recall application is allowed.
The judgment and order dated 13.5.2011 is recalled.
Let the matter be listed, for hearing, before the appropriate bench at an early date."
4. Thus, in view of the stand taken by the respondents in the recall application that after interim order got vacated by this Court, the tenure holders entered into agreement with the authorities taking recourse to the provision of Acquisition by Agreement Rules, 1997 and copy of the different agreement have already been brought on record in the said recall application.
5. A counter affidavit has been filed by the petitioners to the said recall application in denial. The assertion made vide paragraph 12 of the said counter affidavit is that in their knowledge no such agreement was ever entered into and they are entitled for the return of the land and their relief for quashing of the notification deserves to be allowed.
6. From the perusal of the different exhibits that have been brought on record we find that these bear the signatures of the respective tenure holders to the terms and conditions entered into the agreement between the parties. No averment has come up in the entire counter affidavit to the recall application stating specifically that these documents are forged and fabricated and prepared only for the purpose of this case nor, any criminal proceedings have been instituted at the end of the tenure holders to at least prima facie establish a case of fraud at the end of the respondent.
7. We further notice that second supplementary affidavit has come to be filed in which the respondents have annexed the copy of the award dated 15th October, 2012 made pursuant to the agreement entered into between the parties. After the award Section 12, notice under the compulsory Land Acquisition Act, 1894 has also come to be issued to all the tenure holders whose land has been subject matter of the acquisition qua payment of compensation, to appear before the Additional Collector (Acquisition), namely, Special Land Acquisition Officer for the disbursement of the amount under the award. It appears that thereafter, since the land had been acquired by way of agreement under the Agreement Rules, 1997, possession was taken and construction of the Mandi Samiti has taken place. There is no averment nor, any complaint has been filed in the counter affidavit to the recall application, nor, any supplementary affidavit has been filed to demonstrate that the petitioner had any point of time or other tenure holders who might have been aggrieved, placed any objection to the ongoing construction over the area under the acquisition.
8. In such above view of matter, therefore, it is established that the tenure holders of the land in question have entered into agreement with the concerned parties at a rate fixed under the agreement reached under the Agreement Rules, 1997 and, accordingly, the award has been made. Once the petitioners have been issued with the notice under Section 12 of the Act, 1894 and they have voluntarily chosen not to take the compensation, in our considered opinion, the acquisition by agreement cannot be rendered as bad.
9. We, therefore, are not inclined any more to interfere with the acquisition proceedings. The challenge to the notification under the circumstances, does not survive any more.
10. However, since the award of compensation has now been made and the money stands deposited with the Special Land Acquisition Officer, we grant liberty to petitioner to appear before Special Land Acquisition Officer within a period of two months from today to apply for release of amount of compensation as per the agreement and respondent authority, namely, Special Land Acquisition Officer will immediately disburse the amount to each of the tenure holders who are entitled for compensation and who approach the authorities as directed hereinabove.
11. With the aforesaid observations, the writ petition is disposed of and is consigned to records.
Order Date :- 26.11.2019 Atmesh (Ajit Kumar,J.) (Ramesh Sinha,J.)