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                                                                    NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.  2478-2479   OF 2019 (Arising out of S.L.P. (Civil) Nos. 16472-16473 of 2018)

NEW OKHLA INDUSTRIAL DEVELOPMENT AUTHORITY   … APPELLANT  

VERSUS

LT. COL. J.B. KUCHHAL (DEAD) AND ORS.     … RESPONDENTS

WITH

CIVIL APPEAL NOS.  2480-2481    OF 2019  (Arising out of S.L.P. (Civil) Nos. 16475-16476 of 2018)

J U D G M E N T

S.ABDUL NAZEER, J.

1. Leave granted.

2. These  appeals  have  been  preferred  by  New  Okhla  Industrial

Development Authority challenging the final judgment and order dated

21.2.2018 passed by the High Court  of  Judicature at Allahabad in

Review Application No. 96395 of 2017 in Writ Petition (C) Nos. 24775

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of 1990 and the final judgment and order dated 19.12.2016 in Writ

Petition (C) No. 24775 of 1990.

3. Brief  facts  necessary  for  the  disposal  of  these  appeals  are  as

under:

4. The State Government had issued preliminary Notification dated

30th November, 1989 under Section 4(1) of the Land Acquisition Act,

1894 (hereinafter referred to as 'the Act'), proposing to acquire 91-11-0

bighas (57.218 acres) of land comprising a large number of khasras in

Village-Bhagel  Begumpur,  Pargana  Dadri,  District  Ghaziabad  (now

Gautambudh Nagar) at the instance of the appellant herein. This was

followed by a final Notification dated 16th June, 1990 issued under

Section 6(1) of Act. The State Government also exercised powers under

Sections 17(1) and (4) of the Act and dispensed with inquiry under

Section 5A of the Act.   

5. The  private  respondents  were  served  with  notice  dated

18.08.1990 under Section 9 of the Act. In the first writ petition filed by

the private respondents challenging the acquisition, the High Court

passed an interim order dated 10.10.1990 as under:     

"Connect with Writ Petition No. 21643 of 1990.

Counter affidavit may be filed by the respondents within three weeks. Respondent no.4 shall annex the concrete  plan of  the  land,  if  it  is  finalized. Rejoinder affidavit may be filed thereafter within a week.

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Meanwhile  the  respondents  are  directed  not  to dispossess  the  petitioners  from  the  disputed plots, if they had not already been dispossessed therefrom. However, the petitioners are directed not to change the nature of the plots."

6. The Award under Section 11 of the Act was made on 31.07.1992

excluding the disputed land.  On 05.12.1997 the first writ petition was

dismissed for want of prosecution.  Possession of plot Nos. 136M and

137M was taken by the Collector and transferred to the appellant on

10.09.1999.  Order dated 05.12.1997 dismissing the first writ petition

in default was recalled on 01.05.2007.  This writ petition along with

several  other  matters  was  directed  to  be  placed  before  the  larger

Bench. A large number of writ petitions were ultimately decided by the

Full Bench of the High Court of Judicature at Allahabad  in  Gajraj

Singh and others v. State of U.P. and others, 2011 (11) ADJ 1, vide

judgment dated 20.10.2011 but these writ petitions were not decided

by the said Bench.  

7. Another  set  of  writ  petitions  came  before  the  Full  Bench  on

14.05.2012 where the Court directed the Collector to get appropriate

measurement  of  plots  through  competent  revenue  officials  in  the

presence of the private respondents and submit report to the Court.

The Collector submitted its report dated 06.06.2012 giving details of

the plot Nos. 136, 137 and 138. The Full Bench directed this matter to

be placed before the Division Bench vide order dated 09.05.2013.

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8. The appellant filed a counter affidavit  stating that the land in

question is lying vacant.  

9. It was the case of the writ petitioners/private respondents that

without leave of the Court, the appellant started construction of City

Bus  Terminal  in  January,  2015  on  the  disputed  land  despite  the

protest raised by the writ petitioners.  It  was  further  contended

that  the construction raised by the appellant  despite  interim order

passed  by  the  High  Court  is  unauthorised  and  illegal.  Therefore,

possession of  the disputed land is  to be directed to be restored to

them.

10. The  appellant  filed  counter  affidavit  stating  that  the  writ

petitioners have no right to challenge the Notification issued under

Section 4(1) read with Section 17 of the Act. Land has been acquired

for  residential  complex  to  accommodate  industrial  labourers  and

persons of weaker sections, construction of roads, bus depot, and also

green belt to avoid pollution arising from medium and large industries

including  Hosiery  Complex  and  NOIDA  Export  Processing  Zone

Complex.  The total land proposed to be acquired is 91-11-0 bighas

and out if this 25-19-7 bighas is marked for residential complex, 2-4-0

bighas for road, 9 bighas for bus depot and 54-7-13 bighas for green

belt. There was a big 'Nala' having width of about 80 ft. and green belt

proposed on both sides of 'Nala'.  It was denied that the appellant has

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no scheme or plan and the requirement is for public purpose.       

11.  The  High  Court  noticed  that  the  same  notifications  were

challenged by one Daya Ram Tyagi and some other tenure holders and

that the writ petitions had been dismissed. The said judgment of the

High Court has been reversed in appeal by this Court vide judgment

dated 23.08.2011 in Civil Appeal No. 7237 of 2011 Daya Ram Tyagi

(D) through LRS. and others  v. State of UP and others and the

impugned notifications have been quashed. The Court held as under:

"21. Though, various authorities have been cited at  the  Bar  but  we  find  that  in  respect  of acquisition notifications in question,  the matter is  squarely  covered  by  Supreme  Court's judgement in Daya Ram Tyagi and others (supra) wherein  these  very  notifications  have  been quashed on the ground of illegal exercise of power under  Section17  and  dispensation  of  inquiry under Section 5A of the Act, 1894.  Since these very acquisition notifications were involved in the aforesaid judgment,  the same is  binding  on us and we cannot take a different view."

12. Therefore, the High Court allowed the writ petitions and quashed

the impugned notifications in so far as the writ petitioners' lands are

concerned.

13. Having heard Shri Ranjit Kumar, learned senior counsel for the

appellant and Dr. A.M. Singhvi, learned senior counsel appearing for

the  writ  petitioners,  we  are  of  the  view  that  the  High  Court  was

justified in quashing the notification having regard to the judgment of

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this Court in Daya Ram Tyagi (supra).

14. At this stage, Shri Ranjit Kumar submits that the High Court was

not justified in directing determination of  compensation of lands in

dispute at twice the market value which would be determined in ac-

cordance  with  the  provisions  of  Right  to  Fair  Compensation  and

Transparency  in  Land  Acquisition,  Rehabilitation  and  Resettlement

Act, 2013. It was further contended by Shri Ranjit Kumar that the writ

petitioners had failed to establish their right and title in the land ac-

quired.  Therefore, the question of payment of compensation to the

writ petitioners does not arise.

15. On the other hand, Dr. Singhvi submits that the writ petitioners

have produced documentary evidence in support of their contentions

that they are the owners of the land. In this regard, he has taken us

through the materials produced before the High Court.

16. The High Court has considered this issue.  The reasons assigned

for determination of compensation are as under:

"23. It  is  in  these  peculiar  facts  and  circum- stances and looking to the facts that though re- spondents are clearly guilty of going ahead with constructions over a land which was not legally acquired and acquisition notification was already

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set aside by Supreme Court vide judgement dated 23rd August, 2011, in respect of some of the ten- ure holders whose land was also acquired under same acquisition notifications, therefore, respon- dents  should  have  been  careful  enough not  to create/change nature of property till pending writ petitions are decided, but they went ahead and changed nature of land in dispute ignoring com- pletely illegality they have already committed and also suffered in some cases involving same dis- pute and acquisition notifications.

This act on the part of respondents needs to be deprecated. We have no hesitation in holding that authority concerned who permitted it, went to the extent of undertaking illegal construction putting huge public exchequer at risk.

24. Having said so still we find that it would be very harsh on the part of this Court to get entire constructions demolished and restore possession of disputed land of petitioners.

25. In the facts and circumstances, we mould re- lief and allow both these writ petitions in follow- ing manner: (i) Acquisition notifications dated 30th November, 1989 and 16th  June,1990 in so far as relate to petitioners’  land are hereby quashed, since dis- pensation of inquiry under Section 5A by invoca- tion of urgency under Section 17 is patently ille- gal  as  held  in  judgement  of  Supreme Court  in Daya Ram Tyagi and others (supra).

(ii) Respondents shall determine compensation of disputed land at twice market value which would be determined in accordance with provisions of Right to Fair Compensation and Transparency in Land  Acquisition,  Rehabilitation  and  Resettle- ment Act, 2013, and pay the same to petitioners within three months from the date of judgment,

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failing which they shall restore possession of dis- puted land to petitioners by removing construc- tions, if any, raised thereon.

(iii) Petitioners shall also be entitled to cost which we quantify to Rs.5,00,000/- in each set of writ petition”.

17. It is necessary to notice that it has now been almost 28 years

since the subject land had been notified for acquisition.  The appellant

has put up construction over the land without acquisition of the said

land putting public exchequer at risk.  It is no doubt true that the writ

petition was dismissed for default.  However, it has been restored sub-

sequently and the restoration order has not been challenged. The ap-

pellant has not produced any document to substantiate its contention

that the writ petitioners are not the title holders of the land.  On the

other hand the writ petitioners have produced their title deeds in rela-

tion to the said land.

18. We are of the view that the appellant is not justified in contend-

ing that the writ petitioners are not the title holders of the land.  Hav-

ing regard to the facts and circumstances of the case, we are also of

the view that the direction of the High Court for determination of com-

pensation of the disputed land is just and proper.

19. Therefore, we find no merit in these appeals. They are accord-

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ingly dismissed. We make it clear that the High Court has passed the

order directing determination of compensation on the peculiar facts

and circumstances of the case. The said order shall not be made appli-

cable for determination of compensation in respect of other lands ac-

quired under the same notification.

20. There will be no order as to costs.

   …………………………………J.     (A.K. SIKRI)  

   …………………………………J.     (S. ABDUL NAZEER)

   …………………………………J.     (M.R. SHAH)

New Delhi; March 5, 2019.