Hon'ble B. Amit Sthalekar, J.
1. The main question involved in this writ petition is, whether award under the Land Acquisition Act, 1894 (the Act) in respect of a plot can be made in piecemeal.
THE FACTS
2. A part of land in Meerut district was acquired for planned development of the area. In this respect, a notification under section 4 of the Act was published in the official gazette on 23.7.1960. This notification was amended and the amended notification for 316 acres of land was published on 9.2.1962. However, the notifications under section 6 of the Act in respect of the land was published on different dates. This land has now become part of Ghaziabad district and now held for the benefit of Ghaziabad Development Authority (the GDA).
3. In this writ petition, we are concerned with the land situate in village Chikambarpur, main G.T. Road, near UP Delhi Border, Tehsil Loni, District Ghaziabad. In respect of this village, two different notifications under section 6 of the Act were published: one on 27.10.1964 and the other on 24.5.1965. However, the land in dispute in this writ petition was covered by notification dated 24.5.1965.
4. Many persons had filed writ petitions challenging the notifications including Smt. Kamla Devi, Smt. Sudesh Kumari and Smt. Piniki Mehta. They filed writ petition no. 1461 of 1985 (the earlier WP) restraining the respondents from interfering with their possession in respect of Khasra sub-plots number 1/2, 2, 5, 6, 7/2, 3/2 and 9/2 of plot no. 2 of village Chikambarpur district Ghaziabad (the plots in dispute in the earlier WP). Therein, a further prayer was also sought to quash the notifications under sections 4 and 6 of the Act dated 9.2.1962 and 24.5.1965.
5. The earlier WP was dismissed for want of prosecution on 13.8.1991 on the statement of the counsel for the petitioners.
6. This writ petition no. 34703 of 2002 (the present WP) has been filed by five petitioners. Out of these Smt. Kamla Devi (petitioner-1) and Pinki Mehta (petitioner-4) were also petitioners in the earlier writ petition. Shri Sanjeev Mehta and Sri Mohit Mehta (petitioners-2 & 3) were not parties in the earlier writ petition but it is not disputed that they are successor in interest of Smt. Sudesh Kumari, who was a petitioner in the earlier WP. Only Smt. Vimla Devi (petitioner-5) is a new petitioner in the present WP.
7. The present WP is for declaration that acquisition proceeding in respect of plots in dispute in the earlier WP as well as for Khasra sub-plots number 3, 4, and 10 of plot no. 11 of village Chikambarpur, main G.T. Road near UP Delhi Border, District Ghaziabad has lapsed. The khasra numbers 3, 4 and 10 of plot no. 11 were not involved in the earlier WP and are being referred to as the new plots in dispute.
POINTS FOR DETERMINATION
8. We have heard Shri W H Khan, Shri Parvej Khan and Shri N C Gautam for the petitioners, Shri Ashwani Kumar Misra for the GDA and the standing counsel for the State of UP and its officials THE DECISION In Re Plots in Dispute in the Earlier WP
9. The earlier writ petition was dismissed on 13.8.1991 without any liberty to file fresh writ petition. There is a doubt regarding maintainability of the present WP in respect of plots that were also involved in the earlier WP: the petitioners in the earlier WP or their successors in-interest may not be able to maintain the present writ petition.
10. In paragraphs 8 and 18 of the counter affidavit of the State as well as in paragraph 9 of the counter affidavit of the GDA, it has been stated that in respect of the plots in dispute in the earlier WP neither any possession was taken nor any award has been made. However, the question regarding ownership of these plots among the private person is disputed.
11. Shri Mishra, counsel for the GDA, states that so far as these plots are concerned, the GDA is neither taking possession nor proceeding further with their acquisition.
12. In view of the assertions in the counter affidavits and the statement of Shri Mishra, the dispute regarding these plots qua the GDA or the State has come to and end. In view of this we do not consider it necessary to go into the following questions:
Whether the fresh writ petition is maintainable; and Whether we should grant liberty to the petitioners to file an application seeking suitable correction in the order dated 13.8.1991 passed in the earlier WP.
In Re New Plots in Dispute
13. There is no documentary evidence on the record to show, who is the owner of the new plots in dispute. However, some photostat copies of the sale deed are filed along with the rejoinder affidavit but there is cutting and over-writing over the plots. No reliance can be placed upon these photostat copies.
14. Petitioner nos. 1 to 4 or their predecessor had filed the earlier WP however, they had not included these plots. If they were owners or had anything to do with the new plots in dispute, then there was no reason for not including them in the earlier WP. This shows that they have nothing to do with the new plots in dispute and at the most Smt. Vimla Devi (petitioner-5) might have some concern with these new plots .
Possession was Taken
15. There is dispute between the parties whether possession has been taken over the new plots in dispute or not:
According to the petitioners, they are in possession;
According to the respondents, the possession of the new plots in dispute was taken on 27.12.1969.
16. The counsel for the petitioners has brought to our notice the two decisions, namely, Raghbir Singh Sehrawat Vs. State of Haryana: JT 2011(13) (SC) 549 and Sushil Kumar Vs. State of UP: 1999 AWC 764 as well as the copy of the award dated 28.1.1999, memo of possession dated 27.12.1969, and the receipt of Nagar Nigam, Ghaziabad dated 4.7.2002 and submits that:
The award shows that the possession was not taken;
The possession memo states that possession, excluding the structures, was taken;
The structures are standing over the new plots in dispute and its possession was not taken; and In case possession of the structures was not taken then it cannot be said that the possession was taken.
17. The possession memo dated 27.12.1969 includes not only new plots in dispute but some other plots. The award deals with the plots that are mentioned in the possession memo as well other plots.
18. The award nowhere indicates that the possession over the new plots in dispute was not taken. On the contrary it states that the possession over most of the land involved in the award (which is much more than the new plots in dispute) was taken on 27.12.1969 and only in respect of small portion of the land, it was not taken. It does not help the case of the petitioners.
19. The possession memo is on the record. It states that the possession (excluding the structures) in respect of new plots in dispute and some other plots was taken on 27.12.1969 and handed over to the GDA. The question is, was there any structure over the new plots in dispute ?
20. There is nothing on the record to show that any structure was standing over the new plots in dispute on 27.12.1969:
There is a receipt dated 4.7.2002, but it is in the name of petitioner nos. 1 to 4 and it is not clear where these structures are standing. It does not prove that structures were standing on new plots in dispute;
The receipt is also 33 years after the possession was taken. It does not show that structures were standing on 27.12.1969.
21. Apart from above there is no receipt in favour of petitioner no. 5, who might have something to do with the new plots in dispute as held by us (see paragraphs 13 and 14 of the judgment). The possession memo does not help the petitioner rather it proves the case of the respondents.
22. It has also been mentioned in the counter affidavits filed by the State as well as GDA that possession was taken on 27.12.1969. We have no reason to doubt the assertion made by them and we hold that the possession in respect of the new plots in dispute was taken on 27.12.1969 and handed over to the GDA.
The Satya-Prasad Case
23. The counsel for the respondents brought to our notice the decision Satya Prasad Vs. State of UP : AIR 1993 SC 2517 (the Satya-Prasad case) and submits that:
The possession of the new plots in dispute was taken and transferred to the GDA;
The new plots in dispute vest in the State and now in the GDA;
The declaration sought by the petitioners cannot be granted.
24. The counsel for the petitioner submits that:
The Satya-Prasad case does not lay down the law correctly and is distinguishable on facts;
The rights of a person cannot be defeated merely for the reason that possession was taken. In case it is so held then it would render section 11-A of the Act as redundant. This can never be the intention of the Parliament; and The Satya-Prasad case was rightly distinguished by a division bench decision in Megh Singh Vs. State of UP 2010 (9) ADJ 324 (DB) (the Megh-Singh case).
25. There seems to be some force in the submissions of the counsel for the petitioners. However, it is accepted that an appeal is pending before the Supreme Court against the decision in the Megh-Singh case. Considering the circumstances of the case, we are not resting our decision on the Satya-Prasad case.
Section 11-A Explanation―Award Saved
26. Section 11-A of the Act (see below)1 states that the Collector has to make an award under section 11 of the Act within a period of two years from the date of publication of the declaration. However, its explanation extends the time limit in certain cases.
27. The date of publication of declaration in the present case is 24.5.1965. The award is dated 28.1.1991. It is beyond the period of two years. The question is, is it saved by the explanation?
28. The copy of the award is on the record. It also indicates the reasons for not giving award within the stipulated period. It states that:
The cases (details mentioned in the award) were pending before the supreme court in respect of the plots in the award;
The cases were decided on 10.3.1989; and The award was made on 28.1.1991 within two year period from the date of decision.
29. There is no assertion in the writ petition that there was no interim order in the case or there was no restraint in making the award. In view of this, the period is extended under the explanation. The award could be made by 9.3.1991 and infact was made prior to this date, namely, on 28.1.1991: the acquisition has not lapsed Award Cannot Be Made in Piecemeal
30. The counsel for the petitioners submits that:
The petitioners were not party in the cases pending before the Supreme Court;
The pendency of these cases at the instance of other person cannot save the award; and The explanation to section 11-A is not applicable.
31. Be as it may, the petitioners may not be the party before the Supreme Court in the cases, but the fact remains that the dispute was pending in respect of the new plots in dispute. An award has to be made in respect of plots; it cannot be made in piecemeal for a plot qua some persons. In view of this, the explanation to section 11-A of the Act was applicable. Apart from it, there is another reason as to why we should not entertain the writ petition.
Latches―WP Barred 32 The notification under section 4 and 6 of the Act were published in the year 1962 and 1965. The possession was taken in the year 1969. The award was made on 28.1.1992. The writ petition was filed in the year 2002. it is after 37 years of the acquisition of the land or 11 years after making the award.
33. The acquisition was in respect of large area. It has been upheld. There is no justification to entertain this writ petition after such a long time. Writ petition is liable to be dismissed on the ground of latches also.
CONCLUSIONS
34. Our conclusions are as follows:
(a) It is not necessary to go into the validity of acquisition of the plots involved in the earlier writ petition, (namely, Khasra sub-plots nos. 1/2, 2, 6, 7/2, 8/2 and 9/2 of Plot no. 2 of village Chikambarpur, main G.T. Road, near UP Delhi Border, District Ghaziabad) in view of the assertion made in the counter affidavit and the statement made by the counsel for the GDA that the GDA does not wish to proceed with acquisition in respect of these plots;
(b) An award under the Land Acquisition Act has to be for a plot. It cannot be made piecemeal qua some persons; and
(c) The writ petition in respect of new plots in dispute, namely, Khasra sub-plots nos. 3, 4,10 of Plot No. 11 of village Chikambarpur, main G.T. Road, near UP Delhi Border, District Ghaziabad has no merits. It is dismissed.
35. In view of our conclusions and subject to the aforesaid observations, the writ petition is dismissed.
Dated: 12.4.2012.
o.k.