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A.F.R.

Court No. - 4

Case :- WRIT - C No. - 34922 of 2019

Petitioner :- Gajraj

Respondent :- State Of U.P. And 3 Others

Counsel for Petitioner :- Durga Prasad Tiwari

Counsel for Respondent :- C.S.C.,Anjali Upadhya

Hon'ble Bala Krishna Narayana,J.

Hon'ble Prakash Padia,J.

Per Hon'ble Prakash Padia,J.

1.The petitioner has preferred the present writ petition

with the following main prayer :-

“i. Issue a writ order or direction in the Nature of

Mandamus commanding the Respondents-Authorities

to allot the Aabadi Plot to the extent of 10% in light

of Judgment and order dated 21.10.2011 passed by

Full Bench of this Hon'ble Court in case of (Gajraj and

others Vs. State of U.P. and others).”

2.The facts in brief as contained in the writ petition are

that the petitioner is bhumidhar with transferable rights of

Khasra No.339M area 0.0863 hectare situated in revenue

Village Sirsa, Pargana-Dadri, Tehsil Dankour, District

Gautam Buddh Nagar. A notification under Section 4(1)/17

of the Land Acquisition Act, 1894 (hereinafter referred as

Act, 1894) was issued by the State Government on

12.3.2008, which was followed by a notification under

Section 6 of the Act, 1894 on 11.7.2008.

3.It is contended in paragraph 7 of the writ petition that

the petitioner was under impression that the land in

question is being acquired for Industrial Development,

therefore, he will receive the compensation through

agreement Rules of 1997.

4.It is further argued that in similar matter large number

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of writ petitions were filed before this Court, which were

ultimately decided by a full Bench of this Court in the case

of Gajraj and others Vs. State of U.P. and others

reported in 2011 (11) ADJ page 1.

5.One of the plea that was raised before the Full Bench

in Gajraj was that the State Government was not justified

in dispensing with the provisions of Section 5-A of the Act

by invoking the provisions of sub-sections (1) and (4) of

Section 17 of the Act. The Full Bench held that the State

was not justified in dispensing with the enquiry

contemplated under Section 5-A of the Act. Three sets of

directions were then issued. Some of the writ petitions that

had been filed with unexplained delay and laches were

dismissed. The notifications issued in respect of villages

where no development had taken place were quashed.

However, in respect of some villages where substantial

development had taken place, instead of quashing the

acquisition proceedings even after accepting the plea that

the provisions of Section 17(1) of the Act were wrongly

invoked, the Full Bench enhanced the compensation by

64.7% as well as issued directions for allotment of

developed abadi plots. The operative portion of the

directions issued by the Full Bench in respect of petitions

where relief for additional compensation and allotment of

developed abadi plot was granted, is as follows:-

"482 (3). All other writ petitions except as

mentioned above at (1) and (2) are disposed of with

following directions:

(a) The petitioners shall be entitled for payment of

additional compensation to the extent of same ratio

(i.e. 64.70%) as paid for village Patwari in addition to

the compensation received by them under 1997

Rules/award which payment shall be ensured by the

Authority at an early date. It may be open for

Authority to take a decision as to what proportion of

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additional compensation be asked to be paid by

allottees. Those petitioners who have not yet been

paid compensation may be paid the compensation as

well as additional compensation as ordered above. The

payment of additional compensation shall be without

any prejudice to rights of land owners under section

18 of the Act, if any.

(b) All the petitioners shall be entitled for allotment of

developed Abadi plot to the extent of 10% of their

acquired land subject to maximum of 2500 square

meters. We however, leave it open to the Authority in

cases where allotment of abadi plot to the extent of

6% or 8% have already been made either to make

allotment of the balance of the area or may

compensate the land owners by payment of the

amount equivalent to balance area as per average

rate of allotment made of developed residential plots.

4. The Authority may also take a decision as to

whether benefit of additional compensation and

allotment of abadi plot to the extent of 10% be also

given to ;

(a) those land holders whose earlier writ petition

challenging the notifications have been dismissed

upholding the notifications; and

(b) those land holders who have not come to the

Court, relating to the notifications which are subject

matter of challenge in writ petitions mentioned at

direction No.3."

6.It is, therefore, clear that the Full Bench in Gajraj

(supra), instead of quashing the acquisition proceedings

under challenge before it in regard to certain villages in

which extensive development had taken place, even after

holding that providing of opportunity to file objections

under Section 5-A of the Act had wrongly been denied to

the tenure-holders, protected the acquisition proceedings

by directing for payment of additional compensation and

for providing certain percentage of developed abadi plot.

This benefit was restricted to the tenure holders who had

challenged the acquisition proceedings before the Full

Bench.

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7.However, the Full Bench in paragraph 482(4) also

directed that the Authority may take a decision as to

whether the benefit of additional compensation and

allotment of 10% abadi plot be given to those tenure-

holders whose petitions challenging the acquisition

proceedings had earlier been dismissed by the Division

Bench of the High Court and to those who had not filed writ

petitions challenging the notifications in issue before the

Full Bench.

8.Sri Ramendra Pratap Singh, learned counsel

appearing on behalf of respondent no.4 contended that the

village in question in respect of which petitioner has

preferred the present writ petition was never a subject

matter in the case of Gajraj (supra) as such petitioner is

not entitled for 10% developed land.

09.No arguments whatsoever has been raised in reply to

the aforesaid arguments made by Sri Ramendra Pratap

Singh, learned counsel appearing for the respondent no.4.

10.The judgement of the Full Bench passed in the case of

Gajraj (supra) was subject matter before the Supreme

Court in the case of Savitri Devi Vs. State of U.P. and

others reported in 2015 (7) SCC 21.

11.Sri Ramendra Pratap Singh, learned counsel for the

respondent no.4 placed reliance upon paragraphs 44 to 52

of the aforesaid judgment, which are quoted hereinbelow :-

“44. We have also to keep in mind

another important feature. Many residents of

Patwari village had entered into agreement

with the authorities agreeing to accept

enhanced compensation at the rate of 64.7%.

This additional compensation was, however,

agreed to be paid by the authorities only in

respect of land owners of Patwari village. The

High Court has bound the authorities with the

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said agreement by applying the same to all

the land owners thereby benefiting them with

64.7% additional compensation. There could

have been argument that the authorities

cannot be fastened with this additional

compensation, more particularly, when

machinery for determination for just and fair

compensation is provided under the Land

Acquisition Act and the land owners had, in

fact, invoked the said machinery by seeking

reference under Section 18 thereof. Likewise,

the scheme for allotment of land to the land

owners provides for 5% and 6% developed

land in Noida and Greater Noida respectively.

As against that, the High Court has enhanced

the said entitlement to 10%. Again, we find

that it could be an arguable case as to

whether High Court could grant additional land

contrary to the policy. Notwithstanding the

same, the Noida authority have now accepted

this part of the High Court judgment after the

dismissal of the appeals filed by the Noida

authority, and a statement to that effect was

made by Mr. Rao.

45. We may point out that while dismissing

the appeals of Noida authority, following

remarks were made:

“9. Insofar as allotment of 10 per cent of

the plots is concerned, the High Court, in

exercise of its discretionary power, has

thought it fit, while sustaining the notification

issued by the authority for protecting them for

allotting 10 per cent of the developed plots;

and, there again they have put a cap of 2,500

sq.mtrs. In fact, in the course of the order, the

High Court has taken into consideration the

agreement that was entered into by the

authority with the villagers of Patwari and, in

some cases, the authority itself has agreed to

raise 6 to 8 per cent of the developed plots to

the agriculturists. The High Court has also

taken into consideration the observations

made by this Court in the case of Bondu

Ramaswamy Vs. Bangalore Development

Authority, 2010 (7) SCC 129, where this Court

has gone to the extent of directing the

authorities to allot 15 per cent of the

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developed plots. In our view and in the

peculiar facts and circumtances of these

cases, since the relief that is given to the

respondents/agriculturists is purely

discretionary relief by the Court in order to

sustain the notification issued by the

authorities, we do not find any good ground to

interfere with the impugned judgment(s) and

order(s) passed by the High Court, at the

instance of the petitioners/appellants/

authorities, namely, NOIDA and Greater

NOIDA.

10. This order shall not be treated as a

precedent in any other case.”

46.Thus, we have a scenario where, on the

one hand, invocation of urgency provisions

under Section 17 of the Act and dispensing

with the right to file objection under Section

5A of the Act, is found to be illegal. On the

other hand, we have a situation where

because of delay in challenging these

acquisitions by the land owners, developments

have taken in these villages and in most of the

cases, third party rights have been created.

Faced with this situation, the High Court going

by the spirit behind the judgment of this Court

in Bondu Ramaswamy and Others (supra)

came out with the solution which is equitable

to both sides. We are, thus, of the view that

the High Court considered the ground realities

of the matter and arrived at a more practical

and workable solution by adequately

compensating the land owners in the form of

compensation as well as allotment of

developed Abadi land at a higher rate i.e. 10%

of the land acquired of each of the land

owners against the eligibility and to the policy

to the extent of 5% and 6% of Noida and

Greater Noida land respectively.

47.Insofar as allegation of some of the

appellants that their abadi land was acquired,

we find that this allegation is specifically

denied disputing its correctness. There is

specific averment made by the NOIDA

Authority at so many places that village abadi

land was not acquired. It is mentioned that

abadi area is what was found in the survey

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conducted prior to Section 4 Notification and

not what is alleged or that which is far away

from the dense village abadi. It is also

mentioned that as a consequence of the

acquisition, the Authority spends crores and

crores of rupees in developing the

infrastructure such as road, drainage, sewer,

electric and water lines etc. in the unacquired

portion of the village abadi. During the course

of hearing, Chart No. 2 in respect of each

village of Greater Noida was handed over for

the consideration of this Court, wherein the

amount spent by the Authority on the

development, including village development

(which is the unacquired village abadi), has

been given in Column No. 4 thereof. It has

been the consistent stand of the NOIDA

Authority that prior to the issuance of Section

4 Notification under the Land Acquisition Act,

1894, survey was conducted and the abadi

found in that survey was not acquired. In fact,

affidavits in this respect have also been filed

not only in this Court but also in the High

Court. We have mentioned that there has been

a long gap between acquisition of the land and

filing of the writ petitions in the High Court by

these appellants challenging the acquisition. If

they have undertaken some construction

during this period they cannot be allowed to

take advantage thereof. Therefore, it is

difficult to accept the argument of the

appellants based on parity with three villages

in respect of which the High Court has given

relief by quashing the acquisition.

48.To sum up, following benefits are

accorded to the land owners:

48.1. increasing the compensation by 64.7%;

48.2. directing allotment of developed abadi

land to the extent of 10% of the land acquired

of each of the land owners;

48.3compensation which is increased at the

rate of 64.7% is payable immediately without

taking away the rights of the land owners to

claim higher compensation under the

machinery provided in the Land Acquisition

Act wherein the matter would be examined on

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the basis of the evidence produced to arrive at

just and fair market value.

49.This, according to us, provides substantial

justice to the appellants.

50.Conclusion Keeping in view all these

peculiar circumstances, we are of the opinion

that these are not the cases where this Court

should interfere under Article 136 of the

Constitution. However, we make it clear that

directions of the High Court are given in the

aforesaid unique and peculiar/specific

background and, therefore, it would not form

precedent for future cases.

51.We may record that some of the

appellants had tried to point out certain

clerical mistakes pertaining to their specific

cases. For example, it was argued by one

appellant that his land falls in a village in

Noida but wrongly included in Greater Noida.

These appellants, for getting such clerical

mistakes rectified, can always approach the

High Court.

52.The Full Bench judgment of the High

Court is, accordingly, affirmed and all these

appeals are disposed of in terms of the said

judgment of the Full Bench.”

12.Learned counsel for the petitioner submitted that the

decision taken by NOIDA not to allot 10% abadi land to

tenure holders whose acquisition were covered by the Full

Bench in Gajraj but had not filed petitions to challenge the

acquisition proceedings is arbitrary as there is no rationale

in not granting this benefit to persons who had not filed

writ petitions, particularly when such persons have been

granted the additional compensation of 64.70%.

13.Sri Raghvendra Pratap Singh, learned counsel

appearing for NOIDA has, however, submitted that the Full

Bench in Gajraj had left it open to the Authority to take a

decision as to whether additional compensation and 10%

abadi land had to be given to such persons who had not

filed writ petitions. His submission is that the Authority

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after carefully examining the financial position and the land

available with the Authority took a conscious decision to

provide 64.70% additional compensation to such persons

who had not filed writ petitions to challenge the acquisition

proceedings but in view of the paucity of land available

with the Authority, 10% abadi land was being provided to

only such persons who had filed writ petitions and not to

those who had not filed writ petitions. Learned counsel

submitted that this policy decision does not suffer from any

arbitrariness which may call for interference by the Court

under Article 226 of the Constitution.

14.We have carefully considered the submissions

advanced by learned counsel for the parties.

15.It is as a consequence of the Full Bench decision in

Gajraj and the decision rendered by the Supreme Court in

Savitri Devi that the Authority was required to examine as

to whether it would pay additional 64.70% compensation

as also 10% abadi land to land owners who had not filed

writ petitions to challenge the acquisition proceedings. It is

on a consideration of various factors that the Authority

took a conscious decision to pay only 64.70% additional

compensation to such land owners who had not filed writ

petitions. The Authority also decided not to allot 10% abadi

land to such persons.

16.After the aforesaid judgement of the Supreme Court

the matter was again taken up before a Division Bench of

this Court in the case of Mange @ Mange Ram Vs. State

of U.P. and others reported in 2016 (8) ADJ 79 (DB). In

the aforesaid case it was held that the action of the

respondents in not giving additional developed abadi lands

to the petitioner is neither arbitrary nor discriminatory. The

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relevant paragraphs of the aforesaid judgement namely

Mange @ Mange Ram (supra) are reproduced

hereinbelow :-

“12.The Full Bench in order to save the acquisition

proceedings had issued the direction for payment of

additional compensation and for allotment of

developed abadi plots in the extenuating facts and

circumstances of the case. The Supreme Court

acceded to the said consideration holding that the Full

Bench was justified in issuing such directions in the

peculiar facts and circumstances of the case and in

order to save the acquisition proceedings from the vice

of arbitrariness. The Supreme Court while affirming the

decision of the Full Bench categorically held that the

said decision would not be treated to form a precedent

for future cases. The Supreme Court held:

"50. Keeping in view all these peculiar

circumstances, we are of the opinion that these are

not the cases where this Court should interfere

under Article 136 of the Constitution. However, we

make it clear that directions of the High Court are

given in the aforesaid unique and peculiar/specific

background and, therefore, it would not form

precedent for future cases."

13.Thus, we are of the opinion that the ratio decendi

of the Full Bench cannot be applied to similarly situated

persons. The said benefit given by the Full Bench cannot

be extended to the petitioners, even though they may be

similarly situated and their land had been acquired

under the same notification.

14.We are of the view that the action of the

respondents in not giving additional developed abadi

land to the petitioners is neither arbitrary nor

discriminatory, especially when there is no evidence to

dispute the fact that the respondents have no developed

land with them for allotment.

15.In the light of the aforesaid, no relief can be

granted to the petitioner. All the writ petition fails and

are dismissed.”

17. It needs to be remembered that the Full Bench in

Gajraj had issued specific directions for providing 64.70%

additional compensation and 10% abadi land to such

persons who had filed writ petitions but in regard to such

tenure holders who had not challenged the acquisition

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proceedings, left it open to the Authority to take a decision

to provide 64.70% additional compensation as also to allot

10% abadi land. The petitioners do not have a vested right

to claim 64.70% additional compensation and 10% abadi

land. They were entitled to receive compensation in terms

of the award made by the Special Land Acquisition Officer

under section 11 of the Act. This additional compensation

of 64.70% and 10% abadi land was granted by the Full

Bench in Gajraj to save the acquisition as it had found that

dispensing with the enquiry under section 5-A of the Act

was not justified. The petitioner admittedly had not filed

any writ petition to challenge the acquisition proceeding

and had slept over his rights. The Authority, however, in

view of the directions contained in paragraph 482(4) of the

judgment rendered by the Full Bench in Gajraj, took a

decision to provide only 64.70% additional compensation.

This policy in our opinion does not suffer from any

arbitrariness. The Full Bench had drawn a distinction

between those who had filed writ petitions and those who

had not. The petitioner cannot be permitted to contend

that the same benefit should be given to them as was

provided to those who had filed writ petitions.

18.Against the aforesaid judgement a S.L.P. was preferred

before the Supreme Court in the case of Khatoon and

Ors. Vs. The State of U.P. reported in (2018) 14 SCC

346. The same was rejected by the Supreme Court on the

ground that the appellants have neither any legal right nor

any factual foundation to claim the relief of allotment of

additional developed abadi plot. The relevant portion of the

judgement is reproduced hereinbelow :-

"16. In other words, the case of the appellants (writ

petitioners) before the High Court was that the reliefs,

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which were granted to the landowners by the Full Bench

in Gajraj's case (supra) be also granted to the appellants

because their lands were also acquired in the same

acquisition proceedings in which the lands of the writ

petitioners of Gujrat's case (supra) was acquired. In

effect, the relief was prayed on the principles of parity

between the two landowners quo State.

17. It is, however, pertinent to mention that so far as

the direction of the High Court to award additional

compensation payable at the rate of 64.70% was

concerned, the same was already implemented by the

State by paying the compensation to all the landowners

including the appellants without any contest.

18. In this view of the matter, the only question before

the High Court in the appellants' writ petitions that

remained for decision was as to whether the appellants

are also entitled to claim the relief of allotment of

developed abadi plot to the extent of 10% of their

acquired land subject to maximum of 2500 Sq.M.in

terms of the judgment in Gajraj's case and Savitri Devi's

case.

36.Therefore, the only question that now survives for

consideration in these appeals is whether the appellants

are entitled to get the benefit of second direction issued

by the High Court in the case of Gajraj (supra), namely,

allotment of developed abadi plot to the appellants.

37. In our considered opinion, the appellants are not

entitled to get the benefit of the aforementioned second

direction and this we say for the following reasons.

38. First, the High Court in the case of Gajraj (supra)

had, in express terms, granted the relief of allotment of

developed abadi plot confining it only to the

landowners, who had filed the writ petitions. In other

words, the High Court while issuing the aforesaid

direction made it clear that the grant of this relief is

confined only to the writ petitioners [see condition No.

3(a) and (b)].

39. Second, so far as the cases relating to second

category of landowners, who had not challenged the

acquisition proceedings (like the appellants herein) were

concerned, the High Court dealt with their cases

separately and accordingly issued directions which are

contained in condition No. 4(a) and (b) of the order.

40. In condition No. 4(a) and (b), the High Court, in

express terms, directed the Authority to take a decision

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on the question as to whether the Authority is willing to

extend the benefit of the directions contained in

condition No. 3(a) and (b) also to second category of

landowners or not.

41.In other words, the High Court, in express terms,

declined to extend the grant of any relief to the

landowners, who had not filed the writ petitions and

instead directed the Authority to decide at their end as

to whether they are willing to extend the same benefit

to other similarly situated landowners or not.

42. It is, therefore, clear that it was left to the discretion

of the Authority to decide the question as to whether

they are willing to extend the aforesaid benefits to

second category of landowners or not.

43. Third, as mentioned supra, the Authority, in

compliance with the directions, decided to extend the

benefit in relation to payment of an additional

compensation at the rate of 64.70% and accordingly it

was paid also. On the other hand, the Authority declined

to extend the benefit in relation to allotment of

developed abadi plot to such landowners.

44. Fourth, it is not in dispute, being a matter of record,

that when the Authority failed to extend the benefit

regarding allotment of additional abadi plot to even

those landowners in whose favour the directions were

issued by the High Court in the case of Gajraj (supra)

and by this Court in Savitri Devi (supra), the landowners

filed the contempt petition against the Authority

complaining of non-compliance of the directions of this

Court but this Court dismissed the contempt petition

holding therein that no case of non-compliance was

made out.

45. In our view, the appellants have neither any legal

right and nor any factual foundation to claim the relief

of allotment of additional developed abadi plot. In order

to claim any mandamus against the State for claiming

such relief, it is necessary for the writ petitioners to

plead and prove their legal right, which should be

founded on undisputed facts against the State. It is only

then the mandamus can be issued against the State for

the benefit of writ petitioners. Such is not the case here.

46. Indeed, when the landowners, in whose favour the

order was passed by the High Court for allotment of

such plot, could not get the plot then, in such event,

there arise no occasion for the appellants herein to

claim such relief for want of any factual and legal basis

in their favour.

47. One cannot dispute that the Act does not provide for

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grant of such reliefs to the landowners under the Act.

Similarly, there is no dispute that the State paid all

statutory compensation, which is payable under the Act,

to every landowner. Not only that every landowner also

got additional compensation at the rate of 64.70% over

and above what was payable to them under the Act.

48. The reliefs in the case of Gajraj (supra) were granted

by the High Court by exercising extraordinary

jurisdiction under Article 226 of the Constitution and

keeping in view the peculiar facts and circumstances

arising in the case at hand. They were confined only to

the landowners, who had filed the writ petitions. Even

this Court in Savitri Devi’s case (supra) held that the

directions given be not treated as precedent for being

adopted to other cases in future and they be treated as

confined to that case only.

49. That apart, there is no basis for the appellants to

press in service the principle underlined in Article 14 in

such cases for the simple reason that firstly, Article 14

does not apply to such cases; and secondly, there is no

similarity between the case of those landowners, who

filed the writ petitions and the present appellants, who

did not file the writ petitions. Though the High Court, in

Gajraj’s case (supra) decided the rights of both

categories of landowners but the cases of both stood on

a different footing. It is for these reasons, the appellants

were not held entitled to take benefit of condition No. 3

(a) and (b) of the case of Gajraj (supra) which was

meant for the writ petitioners therein but not for the

appellants. However, the appellants were held entitled

to take the benefit of only condition No. 4 (a) and (b) of

the said judgment and which they did take by accepting

the additional compensation payable at the rate of

64.70%.

50. In our view, therefore substantial justice was done to

all the landowners including the appellants, as observed

in para 49 of Savitri Devi’s case (supra).

51. In our opinion, therefore, there is no case made out

by the appellants for grant of any relief much less the

relief of allotment of additional developed abadi plot. If

we entertain the appellants’ plea for granting them the

relief then it would amount to passing an order contrary

to this Court’s directions contained in para 50 of the

order passed in Savitri Devi’s case (supra).

52. In the light of the foregoing discussion and on

examining the appellants’ case from any angle, we find

no merit in the appeals, which fail and are accordingly

dismissed.”

19.It is to be noted at this juncture that earlier also a Full

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Bench of this Court in the case of Ravindra Kumar Vs.

District Magistrate, Agra and others reported in 2005

(1) UPLBEC 118 has held that land acquisition act is itself

a self contained code. Any other provision providing for

further benefit has not been mentioned in the Land

Acquisition Act. In that case the petitioner had claimed

employment in the State Government over and above the

compensation paid which the Court declined. The

paragraph 22 of the aforesaid judgement is reproduced

below hereinbelow :-

“22. There is no provision under the Land

Acquisition Act under which the Circular dated

28.12.1974 could be issued. Whatever compensation has

to be given for acquisition of the land is provided under

the Land Acquisition Act itself which is a self-contained

Code. Any G.O. providing for any further benefit not

mentioned in the Land Acquisition Act would be

inconsistent with the intention of Parliament as contained

in the Land Acquisition Act. Hence any such GO. would be

violative of the Land Acquisition Act and would hence be

invalid. Such a G.O. will also violate Article 16 of the

Constitution as already mentioned above.”

20.In the facts and circumstances of the case, petitioner

is not entitled for the benefit as has been provided by the

Full Bench of this Court in the case of Gajraj (supra) as well

as by the Supreme Court in the case of Savitri Devi (supra).

A Division Bench of this Court in the case of Mange @

Mange Ram (supra) has already held that the persons like

the petitioner are not entitled for the 10% developed land.

The aforesaid judgement passed in the case of Mange @

Mange Ram (supra) was also affirmed by the Supreme

Court in the case of Khatoon (supra). In the case of

Khatoon (supra) it has been specially held by the Supreme

Court that the petitioners have neither any legal right nor

any factual foundation to claim the relief of allotment of

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additional developed abadi land.

21.In view of the facts and circumstances of the case as

stated above it is clear that the petitioner is not entitled for

the reliefs as claimed by him in the present case. This

being the case in the present case, 10% developed land as

claimed by the petitioner cannot be allowed as the

petitioner is no legal right to claim such 10% developed

land.

22.The writ petition is misconceived and it is accordingly

dismissed.

Order Date :- 31.10.2019

Pramod Tripathi