Hon'ble Jaspreet Singh,J.
The petitioners have preferred the instant writ petition challenging the notification dated 19.04.2010 issued under Section 4(1) of the Land Acquisition Act, 1894 as well as the declaration dated 02.06.2010 under Section 6(1) of the Land Acquisition Act, 1894 by which the respondents have acquired the land for the public purpose of 'Samudaik Sanskritik Suvidhyane' but later changed the purpose for commercial use. A prayer has also been made that the respondents be restrained from interfering in respect of the property belonging to the petitioners which has been detailed in paragraph-4 of the writ petition.
The main thrust of challenge to the acquisition proceedings is primarily on the ground that though the respondents had initiated the land acquisition proceedings by issuance of notification under Section 4(1) of the Land Acquisition Act indicating therein that the land was required for the public purpose of Samudaik Sanskritik Suvidhyane and also invited objections in terms of Section 5(A) of the Land Acquisition Act. However, soon after the declaration under Section 6(1) of the Land Acquisition Act was issued on 02.06.2011 thereafter the respondents undertook an exercise to change the land use of the said land from residential to commercial purpose and wanted to raise a five star hotel and for which it invited bids which was even published in the section of the print media dated 16.09.2011.
It has been submitted that this change of land use for the purposes of construction of a five star hotel does not fit the description of a public purpose and accordingly for the said reason it has been submitted that this amounts to fraud and misuse of the power of eminent domain by the State and accordingly it has been urged that the notifications under Section 4 dated 19.04.2010 and declaration under Section 6 dated 02.06.2010 be quashed.
Per contra the learned counsel for the Lucknow Development Authority while referring to its counter-affidavit has emphasized that the State has the power to acquire land in terms of the provisions contained in the Land Acquisition Act 1894 and in furtherance thereof the notifications were issued. Since the land was sought to be acquired to provide cultural facilities, hence objections were invited under Section 5 of the Act of 1894. The petitioners amongst other persons had also filed their objections which was duly considered in accordance with law and disposed of by means of order dated 24.05.2010. Subsequently, the declaration under Section 6 was issued on 02.06.2010. Once the acquisition proceedings stood completed by issuance of the aforesaid notifications, taking over the possession and by making the award which was made on 23.06.2010 accordingly the acquisition proceedings stood completed and the land vested with the State free from all encumbrances.
It has further been submitted that once the land has vested with the State Government it was the domain of the State whether it utilized the said land for the purposes for which it was initially acquired or for any other purpose; inasmuch as the same did not affect the rights of the petitioners who were only entitled to receive the compensation. It has also been pointed out by the learned counsel for the Lucknow Development Authority that looking into the potentiality of the land the State decided to change the land use of the said land from residential to commercial.
This decision was implemented by following the due process as contemplated in terms of the provisions contained under Section 13 of the U.P. Urban Planning & Development Act 1973, this exercise has been carried out in accordance with law and since there is no error in respect thereto the petitioners do not have a right to assail the same specially when they did not raise any objection regarding the change in the land use when objections were invited from the public and now at this late stage the petitioners are precluded from raising such a challenge. Accordingly, it has been prayed that the writ petition be dismissed.
This Court by means of order dated 18.07.2018 had summoned the record from the Lucknow Development Authority to satisfy itself regarding the process undertaken by the Lucknow Development Authority both in respect of the initial proposal of acquisition of land, disposal of objections under Section 5(A) and declaration issued under Section 6 of the Land Acquisition Act as well as in respect of the proposal for the change in the land use in terms of Section 13 of the U.P. Urban Planning & Development Act, 1973. Today the record has been produced before this Court.
The Court has heard Shri S.M. Royekwar learned counsel for the petitioners, Shri H.A.B.Sinha for the State and Shri Mukund Tewari learned counsel appearing for the Lucknow Development Authority and also perused the record.
Upon perusal of the record produced by Shri Mukund Tewari on behalf of the Lucknow Development Authority, we are satisfied that the State has followed the procedure as required in law for acquiring the land by issuing the notifications under Section 4. The said notification was published in two daily newspapers. The record also indicates that objections were invited under Section 5 A of the Land Acquisition Act and in furtherance thereof certain persons had filed their objections which also included the petitioners and by means of the order dated 21.05.2010 the objections were considered and were finally disposed of. An inspection of the land was also made by a joint team of the Amin (Acquisition), Lekhpal and Amin and thereafter the possession was taken and the award was also made on 23.06.2010.
Similarly, as far as the process for the land use is concerned, the record indicates that a proposal was initiated in December, 2010 upon which deliberates were made. After considering the various suggestions which was culled out from the deliberates the notification was issued seeking the change in the master plan 2021 in respect of the land in question and its land use was sought to be changed from the residential to commercial centre (Up Nagar Kendra).
The said notification was also published in daily newspaper on 25.12.2010. Objections were invited and thereafter upon considering the same only on 14.02.2011 the notification was issued changing the land use of the area in question from the residential to commercial centre (Up Nagar Kendra).
Thus as far as the process adopted for the purposes of acquisition and change in land use is concerned this Court is satisfied that it does not suffer from any procedural lapse or it has been done in violation of any provision of law. To that extent the submission of the learned counsel for the petitioners that the change in the land use has been actuated by fraud is absolutely misconceived and is rejected outright.
Now the only question that remains to be considered is whether the State after acquiring the land had the right to put the acquired land to any other use than for which it was initially acquired .
From the perusal of the record, it would indicate that the petitioners themselves had stated that they had purchased the land sometime between the year 2006-2007 from its erstwhile owner. It has further been stated that the said land was purchased for the purposes of constructing their dwelling house alongwith a commercial establishment for their livelihood. Significantly, the same ground was also taken by the petitioners when it has submitted its objection under Section 5 (A) of the Land Acquisition Act which came to be rejected by the Collector. This order of rejection has also not been assailed in the writ petition. While the declaration under Section 6 was issued on 02.06.2010 and subsequently the possession was taken and even the award was made on 23.06.2010 till then the petitioners did not raise any objection nor preferred any petition. Rather in paragraph-10 of the writ petition, it has been stated that the petitioners as well as other tenure-holders had filed a reference under Section 18 of the Land Acquisition Act on 29.07.2010. This clearly indicates that the petitioners had no intention to assail the acquisition rather they were satisfied and were more interested in seeking and enhancement of the amount awarded and thus they had taken the remedy as provided in law by filing a reference under Section 18 of the Land Acquisition Act. It would further indicate that only after the land use was changed in February 2011 that the petitioners had a change of heart and in the month of November 2011, the instant writ petition was filed.
During the pendency of the aforesaid petition upon inquiry from the counsel from the Lucknow Development Authority, it has been informed that though the land use has been changed but the allegation regarding raising of the five star hotel has subsided; inasmuch as the initial proposal for the same has been shelved and the respondents do not intend to proceed with the same. However, as far as the land use is concerned, it has been submitted that the respondents are entitled to use the land in the manner they so desire and therefore merely the change in the land use cannot attribute any malice or malaifides on the part of the State Government.
The learned counsel for the petitioners in order to buttress his submission has relied upon the decision of the Apex Court reported in 2011 (12) SCC page 375, Greater NOIDA Industrial Development Authority Vs. Devendra Kumar. Relying heavily on paragraph 42 of the said report, it has been submitted that the respondents before the change of the land use ought to have deliberated and arrived at a conclusion based of subjective satisfaction that the purpose for which initially the land was acquired i.e. for Samudaik Sanskritik Suvidhyane and what was the reason which did not make the said use to be feasible and thereafter it prompted the State Government to change the land use and since this has not been done hence the submission is that this amounts to a colourable exercise of power and a fraud which is sought to be practiced to deprive the land holders of their valuable in the property rights by disguising their intentions under the garb of public purpose.
Per contra Shri Mukund Tewari has relied upon the decision of the Apex Court in the case of Bhagat Singh Vs. State of U.P. and others reported in 1999 (2) SCC page 384, Municipal Corporation of Greater Bombay Vs. Industrial Development Investment Co. Pvt. Ltd. and others reported in 1996 (11) SCC page 501, and a Division Bench Judgment of this Court reported in 1985 UPLBEC 1129, Trijugi Nath Gupta and others Vs. State of U.P. & others.
On the strength of the aforesaid judgments, Shri Tewari has submitted that there is no complusion for the State Government to utilize the land proposed to be acquired only for the public purpose which is mentioned in the notification or used as mentioned in the master plan or the zonal plan of the said area. It has been submitted that merely because the proposed land sought to be acquired is used for any other purpose or that the land used has been changed, the same does not affect the acquisition.
From the perusal of the aforesaid judgments cited by the respective parties, it is clear that as far as the proposition of law is concerned, it has been well settled by the Apex Court that once the original acquisition is valid and the title has vested in the Government, then the question as to how the said land is used is not the concern of the original land owners nor the same can be made the basis for challenging the acquisition. The Apex Court has also held that there is no principle of law by which the valid acquisition can be made void because later the acquiring authority diverts the said land to a purpose other than the one which was mentioned in Section 6 declaration.
The aforesaid proposition as laid by the Apex Court has been taken note of in the case of Municipal Corporation of Greater Bombay (supra) and the relevant portion thereof is being reproduced herein after
21. In State of Maharashtra v. Mahadeo Deoman Rai [(1990) 3 SCC 579] yet another Bench of three Judges had held that requirement of public purpose may change from time to time but the change will not vitiate the acquisition proceeding. The authority concerned should review the requirement aspect periodically in the prevailing social context. In Collectors of 24 Parganas v. Lalit Mohan Mullick [(1986) 2 SCC 138] a Bench of two Judges had held that acquisition of the land for a public purpose, namely, the use of the land for rehabilitation of displaced persons, should be altered by subsequent development for another public purpose, namely, for construction of a hospital as per Development and Planning Act. In Ram Lal Sethi v. State of Haryana [1990 Supp SCC 11] the land was acquired for public purpose of construction of road but exigencies of development necessitated allotment of a portion of it to a private company; the allottee company was in possession for 17 years and was not made a party to the litigation; allotment was not shown to be an act of favouritism. It was held by the two-Judge Bench that the acquisition was not vitiated on account of change of the user.
22. It is thus well-settled legal position that the land acquired for a public purpose may be used for another public purpose on account of change or surplus thereof. The acquisition validly made does not become invalid by change of the user or change of the user in the Scheme as per the approved plan. It is seen that the land in Block ''H' which was intended to be acquired for original public purpose, namely, the construction of Sewage Purification Plant, though was shifted to Block ''A', the land was earmarked for residential, commercial-cum-residential purposes or partly for residential purpose etc. It is the case of the appellant that the Corporation intends to use the land acquired for construction of the staff quarters for its employees. It is true that there was no specific plan as such placed on the record, but so long as the land is used by the Corporation for any designated public purpose, namely, residential-cum-commercial purpose for its employees, the later public purpose remains to be valid public purpose in the light of the change of the user of the land as per the revised approved plan. It is true that in the original scheme the residential quarters for the staff working in Sewage Purification Plant were intended to be constructed and the same purpose is sought to be served by the acquisition of the land by using the land in Block ''A'. Nonetheless the acquired land could be used by the Corporation for residential-cum-commercial purpose for its employees other than those working in the Sewage Purification Plant. It would not, therefore, be necessary that the original public purpose should continue to exist till the award was made and possession taken. Nor is it the duty of the Land Acquisition Officer to see whether the public purpose continues to subsist. The award and possession taken do not become invalid or ultra vires the power of the Land Acquisition Officer. On taking possession, it became vested in BMC free from all encumbrances including tenancy rights alleged to be held by the respondents. Possession and title validly vesting in the State, becomes absolute under Section 10 of the Act and thereafter the proceedings under the Act do not become illegal and the land cannot be revested in the owner. Only before taking possession, the Government can withdraw from inquiry under Section 45(1) of the Act or the High Court under Article 226 of the Constitution may quash it on legal and valid grounds. If the award under Section 11-A was not made within two years from the date of the publication of the declaration under Section 6, as enjoined under Section 11-A of the Land Acquisition Act, whether the notification under Section 4(1) would lapse. This Court in Satendra Prasad Jain v. State of U.P. [(1993) 4 SCC 369] had held that after the land stood vested in the State, even if the authorities failed to comply with the statutory requirements, it does not have the effect on the vesting of land in the State. Thereby the notification under Section 4(1) and the declaration under Section 6 do not stand lapsed. The same view was reiterated by another Bench in Awadh Bihari Yadav v. State of Bihar [(1995) 6 SCC 31] . The High Court, therefore, was not right in exercise of power under Article 226 of the Constitution in granting declarations as mentioned in the beginning or in making order of injunction against the appellants pending writ petitions. It is an equally settled law that a tenant cannot challenge the notification under Section 4 and declaration under Section 6 of the Act when the landlord himself had accepted the award and received compensation.
Yet again the similar proposition has been upheld in the case of Bhagat Singh (supra) and the relevant portion is being reproduced herein after "22. As pointed out in the above Judgments, there is no need that the land proposed to be acquired by the Government for a particular public purpose should be for the same purpose or use mentioned in the Master Plan or Zonal Plan for the said area. Nor will the acquisition be invalid merely because the land proposed to be acquired is for a purpose other than the one permitted by the Master Plan or Zonal Plan applicable to that locality. Acquisition will be valid if it is for a public purpose even if it is not for the type of user permitted by the Master plan or Zonal plan in force at the-time. the acquisition is made. It will be for the beneficiary of the acquisition to move the competent authority under the Development Act and obtain the sanction of the said authority for suitable modification of the Master Plan so as to permit the use of the land for the public purpose which the land is acquired. In fact, it may be difficult for the beneficiary of the acquisition to move the competent authority under the Development Act seeking permission to change of land use even before the land is acquired or before possession is given to the beneficiary. On the principle stated in Aflatoon 's case, it is clear that acquisition for a public purpose and obtaining permission from competent authority under the concerned Development Act for change of land use are different from one another and the former is not dependent upon the latter."
The decision of Greater NOIDA (supra) relied upon by the learned counsel for the petitioners is clearly distinguishable on facts; inasmuch as in the aforesaid case the Apex Court has found that the invocation of Section 17 of the Act of 1894 while making a notification under Section 4 was not warranted. It also found that the notifications issued under Section 4 coupled with the declaration of Section 6 was done with undue haste and the process adopted was also mired with questionable expedition and the sham compliances.
In the present case, there is no averment made in the writ petition despite the petitioners also having filed their rejoinder-affidavit that there was any such non compliance by which the process of acquisition could be called in question. Thus, the decision relied upon by the petitioners does not come to their help.
In light of the discussions made aforesaid as well as from the perusal of the record of this Court as well as the record which has been produced by the Lucknow Development Authority, this Court is satisfied that there is no justification to set aside the notification under Section 4 as well as declaration under Section 6 or the Land Acquisition Act 1894.
This Court is satisfied that the notifications for acquiring the land has been made in a bonafide exercise of power including the notification for the change of the land use. We do not find any error or illegality to warrant any interference. The record of the Lucknow Development Authority retained be returned to the learned counsel for the Lucknow Development Authority.
Accordingly, the writ petition lacks merit and is dismissed. There shall be no order as to costs.
(Jaspreet Singh, J) (Pankaj Kumar Jaiswal, J) Order Date :- August 26, 2019 ank/-