No Acts & Articles mentioned in this case
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Court No.34. A.F.R.
Reserved on 3.1.2020
Delivered on 10.2.2020
1. Case :- WRIT - C No. - 31586 of 2016
Petitioner :- Kamal Singh And 3 Ors.
Respondent :- State Of U.P. And Ors.
Counsel for Petitioner :- Sanjay Kumar Mishra
Counsel for Respondent :- C.S.C.,Anuj Pratap Singh,Kuldeep Singh
Chauhan,Neeraj Kumar Srivastava,Prabhaker Awasthi,Yogesh Kumar
2. Case :- WRIT - C No. - 52602 of 2011
Petitioner :- Kailash Chandra Sharma And Others
Respondent :- State of U.P. and Others
Counsel for Petitioner :- Madan G. Sharma,Prem Kumar Chaurasia,Uttar
Kumar Goswami
Counsel for Respondent :- C.S.C.
3. Case :- WRIT - C No.- 59955 of 2012
Petitioner :- Gopal Das And Others
Respondent :- State Of U.P. Thru Special Secy. And Others
Counsel for Petitioner :- Madan G. Sharma,Prem Kumar Chaurasia,Uttar
Kumar Goswami
Counsel for Respondent :- C.S.C.,Kuldeep Singh Chauhan,Sudhanshu
Srivastava
4. Case :- WRIT - C No. - 59958 of 2012
Petitioner :- Prem Pal And Others
Respondent :- State Of U.P. Thru Special Secy. And Others
Counsel for Petitioner :- Madan G. Sharma,Prem Kumar Chaurasia,Uttar
Kumar Goswami
Counsel for Respondent :- C.S.C.,Kuldeep Singh Chauhan
5. Case :- WRIT - C No. - 59962 of 2012
Petitioner :- Bhagwan Singh And Others
Respondent :- State Of U.P. Thru Special Secy. And Others
Counsel for Petitioner :- Madan G. Sharma,Prem Kumar Chaurasia
Counsel for Respondent :- C.S.C.
6. Case :- WRIT- C No.- 59964 of 2012
Petitioner :- Ram Babu Singh And Others
Respondent :- State Of U.P. Thru Special Secy. And Others
Counsel for Petitioner :- Madan G. Sharma,Prem Kumar Chaurasia,Uttar
Kumar Goswami
Counsel for Respondent :- C.S.C.,Adarsh Bhushan
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7. Case :- WRIT - C No. - 47504 of 2017
Petitioner :- Ravi Shankar
Respondent :- State Of U.P. And 6 Others
Counsel for Petitioner :- Shiv Kant Mishra,Sanjay Kumar Mishra
Counsel for Respondent :- C.S.C.,Anuj Pratap Singh,Prabhakar
Awasthi,Saurabh Srivastava,Sudhanshu Srivastava
8. Case :- WRIT - C No. - 50821 of 2017
Petitioner :- Hari Om Singh
Respondent :- State Of U.P. And 6 Others
Counsel for Petitioner :- Sanjay Kumar Mishra
Counsel for Respondent :- C.S.C.,A.S.G.I.,Anuj Pratap
Singh,Prabhakar Awasthy,Rajesh Tripathi
9. Case :- WRIT - C No. - 50824 of 2017
Petitioner :- Rahul Kumar And 3 Others
Respondent :- State Of U.P. And 6 Others
Counsel for Petitioner :- Sanjay Kumar Mishra
Counsel for Respondent :- C.S.C.,A.S.G.I.,Anuj Pratap Singh,Rajesh
Tripathi,Sunil Kumar Mishra
10.Case :- WRIT - C No. - 51857 of 2017
Petitioner :- Ram Pratap Singh And Another
Respondent :- State Of U.P. And 6 Others
Counsel for Petitioner :- Sanjay Kumar Mishra
Counsel for Respondent :- C.S.C.,A.S.G.I.,Anuj Pratap Singh,Rajesh
Tripathi,S.K.Misra,Sudhanshu Srivastava
11. Case :- WRIT - C No. - 57562 of 2017
Petitioner :- Dori Lal
Respondent :- State Of U.P. And 6 Others
Counsel for Petitioner :- Sanjay Kumar Mishra
Counsel for Respondent :- C.S.C.,A.S.G.I.,Anuj Pratap
Singh,Prabhaker Awasthi,Sudeep Hakauli,Sudhanshu Srivastava
Hon'ble Sudhir Agarwal,J.
Hon'ble Saurabh Shyam Shamshery,J.
(Delivered by Saurabh Shyam Shamshery,J)
1.The facts which led to filing of the present bunch of writ
petitions are as follows:
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2. A notification under Section 4(1) read with Section 17 of Land
Acquisition Act, 1894 (hereinafter referred to as 'Act, 1894') was
published on 13.2.1991 to acquire a total 969.023 acres of land in
four villages namely: Dashahra Kherli, Rukanpur, Jahanpur and
Naifal alias Unchagaon, Pargana and Tehsil:Bulandshahr, Uttar
Pradesh.
3.The acquisition of land was initiated at the instance of U.P.
State Industrial Development Corporation, Kanpur (hereinafter
referred to as ‘UPSIDC’) for the purpose of establishing Growth
Centre at district Bulandshahr. Declaration under Section 6(1) read
with Section 17 of Act, 1894 was made on 23.3.1991. Possession of
land was taken on 7.10.1993, 8.10.1993, 13.10.1993 and 16.10.1993.
Special Land Acquisition Officer (hereinafter referred to as 'SLAO')
made award determining compensation in respect to the land acquired
on 15.10.1993, 16.10.1993, 22.10.1993 and 31.3.1995.
4. The SLAO determined compensation of total Rs.2,87,14,996.53.
Certain land owners who were not satisfied with determination of
compensation by SLAO got Reference made under Section 18 of Act,
1894. Reference Court increased amount of compensation and fixed at
a total of Rs.7,13,37,504/-.
5.After Reference, certain amount of compensation was disbursed
and balance amount was deposited as revenue deposit in the Treasury,
Bulandshahr, Uttar Pradesh.
6.U.P.S.I.D.C. made various complaints that though
compensation has been paid and possession has been taken, still some
farmers have not vacated their part of land which was creating
obstruction in the development activities. In further development,
UPSIDC entered into an agreement (Memorandum of Understanding)
on 14.12.2013 with the Tehri Hyrro Development Corporation India
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Limited (hereinafter referred to as “THDCIL”) to establish 1320
Megawatt Super Thermal Power Project on the said land and for that
purpose land was sought to be transferred by UPSIDC to THDCIL.
The further development in the present case was that district
authorities, UPSIDC and THDCIL decided to pay more compensation
beyond the compensation fixed by Reference Court in order to settle
with the villagers so that UPSIDC took actual possession of land
acquired. After certain negotiations with the villagers it was decided
to pay compensation at the rate of Rs.721/- per square metre. The said
additional compensation was termed as ‘ex gratia payment’. The total
compensation was increased from Rs.7,13,37,504/- to Rs.
3,87,17,71,833/- i.e. on enhancement of about 380 Crores.
7.The main reliefs sought in the bunch of the writ petitions are
briefly as follows:
a) Writ Petition No.31586 of 2016, the petitioners have sought
for the relief which is as under:
(i) To issue a writ, order or direction in the nature of
MANDAMUS commanding to Respondent no.3 to release
the compensation in respect of petitioners’ land
comprising of Khata No.162 Plot No.270, 288, 522Sa,
549, 550, 591, 593, 686, 710, 735, 790, 802, 809 and 811
total area 5.391 Hectare situated in village Dashara
Kherli, Pargana and Tehsil Khurja, district bulandshahr.”
b) Writ Petition Nos. 52602 of 2011, 59955 of 2012, 59958 of
2012, 59962 of 2012 and 59964 of 2012:- in all these writ petitions, a
common relief has been sought by the petitioners which is as under:
“(i) A writ, order or direction in the nature of certiorari
quashing the impugned notifications dated 13.2.1991 and
dated 23.3.1991 issued by respondent no.1 (Annex.Nos.1
and 2).”
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8.In Writ Petition Nos.47504 of 2017, 50821 of 2017, 50824 of
2017, 51857 of 2017 and 57562 of 2017, petitioners have sought
declaration of lapse of acquisition under Section 24 (2) of Right to
Fair Compensation and Transparency in land Acquisition,
Rehabilitation and Resettlement Act, 2013 (hereinafter referred as the
Act, 2013).
9.When the matter was listed before this Court, after exchange of
pleadings, a detailed order dated 29.8.2016 was passed whereby a
serious note was taken about the huge payment of ‘ex-gratia amount’
over and above the compensation determined by the authorities under
Act, 1894 and a direction was passed to enquire into the matter by a
High Powered Enquiry Committee to be constituted by Chief
Secretary of Uttar Pradesh. The said Committee was to be headed by a
Judicial Officer. It was also directed to examine the facts, (i) Where
land acquired and compensation determined and paid under Act, 1894,
whether it is permissible for authorities to again pay compensation
from public exchequer to erstwhile land owners at an exorbitant rate
and that too at a rate which is applicable after more than two decades
from acquisition notification under Section 4 of Act, 1894 was issued;
(ii) Whether acquired land had market value for the purpose of
compensation at Rs.721/- per square metre on the date when
notification under Section 4 of Act, 1894 was issued particularly when
in this regard awards by District Judge under Section 18 of Act, 1894
have already been made determining much lesser value; (iii) If
possession was taken over of acquired land in 1993, why District
Administration did not take any effective steps to dispossess
unauthorized occupants, and (iv) Who are the persons/authorities
responsible to permit continued unauthorized possession of erstwhile
tenure holders over acquired land and thereby creating a situation
where Farmers re-entered the land and Administration found itself
handicapped to dispossess them without accepting their demand.
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10.The relevant part of the order is also reproduced hereinafter:
“31. Acquisition which commenced in 1990, SLAO
made awards at the rate is less than Rs.2/- per square
yard, enhanced to some extent by District Judge,
Bulandshahr in some references, the rate has now been
increased to several hundred times. Further, on
acquisition finalized by SLAO or District Judge with
regard to compensation and possession of land was also
taken by parties in 1993, for the same land, again
compensation is sought to be paid and the total amount
which was earlier less than three crores is now increased
to 275 crores and above. This is something fantastic and
mind-blowing.
32. In our view, facts are self-speaking and smacks of
something scammish somewhere. Initially, we intended to
have the matter enquired by a Special Investigation
Team, headed by a Judicial Officer, or by Central Bureau
of Investigation but then it appears to us that authorities
at District level and officials of UPSIDC and THDCIL,
among themselves, have colluded to extract a huge
money from public exchequer in the name of distribution
of compensation to Farmers but these facts in entirety
were not made known to Government, hence, we require
Chief Secretary, U.P., Lucknow to constitute a High
Powered Inquiry Committee headed by a Judicial Officer
of the rank of not less than Additional Legal
Remembrancer. It shall also have as Members, a Senior
Official of Revenue Department and a competent Senior
Police Official, who would conduct an indepth inquiry in
the matter and submit report as to how all this has
happened and who are the persons responsible.
33.The aforesaid Committee, besides other, shall also
examine the facts, (i) Where land acquired and
compensation determined and paid under Act, 1894,
whether it is permissible for authorities to again pay
compensation from public exchequer to erstwhile land
owners at an exorbitant rate and that too at a rate which
is applicable after more than two decades from
acquisition notification under Section 4 of Act, 1894 was
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issued; (ii) Whether acquired land had market value for
the purpose of compensation at Rs.721/- per square
metre on the date when notification under Section 4 of
Act, 1894 was issued particularly when in this regard
awards by District Judge under Section 18 of Act, 1894
have already been made determining much lesser value;
(iii) If possession was taken over of acquired land in
1993, why District Administration did not take any
effective steps to dispossess unauthorized occupants, and
(iv) Who are the persons/authorities responsible to
permit continued unauthorized possession of erstwhile
tenure holders over acquired land and thereby creating a
situation where Farmers re-entered the land and
Administration found itself handicapped to dispossess
them without accepting their demand.
34. Chief Secretary, U.P., Lucknow while submitting
report of Committee shall also file an affidavit stating, if
this case is taken to be an example whether this can be
treated as a policy of Government that where-ever
erstwhile owners of acquired land, if re-enter the land
and get possession unauthorizedly instead of taking
appropriate action in law for ousting such unauthorized
occupants, State would be justified in accepting their
demand of compensation again, at an exorbitant rate, on
the pretext of maintenance of law and order.
35. The Committee as directed above, shall be
constituted within 10 days from today and shall make
inquiry and submit report within three months. Such
report shall be submitted to this Court with the affidavit
of Chief Secretary, as directed above for further action in
the matter.”
11.The High Powered Committee consisted of Special
Secretary/Additional Legal Remembrancer, Law Department, Deputy
Inspector General of Police (Anti Corruption Cell), Lucknow and the
Special Secretary, Department of Revenue, State Government
submitted their Enquiry Report dated 06.3.2017 which was placed on
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record by Chief Secretary along with his affidavit sworn on
09.3.2014.
12.The summary of the conclusions of Committee on the four
issues which are mentioned in the order dated 9.10.2017 passed by
this Court, are as follows:
“On the first issue as to whether when the land had
been acquired and compensation had been determined
under the provisions of Land Acquisition Act, 18942, it
was permissible for the Authorities to again pay
compensation from the public exchequer to the erstwhile
land owners at an exorbitant rate and that too at a rate
which was applicable after more than two decades of the
acquisition, the finding recorded by the Committee is
that it was not permissible to do so and that it was not
permissible to subsequently take recourse to the
provisions of Section 11(2) of the Act when the award
had already been made under Section 11(1) of the Act.
Regarding the second issue as to whether the market
value of the land on the date Section 4(1) of the Act
notification was issued was Rs. 721 per sq. mtrs., the
Committee has recorded a finding that Rs. 721/- per sq.
mtrs. was not the market rate when Section 4(1)
notification was issued on 9 March 1991 and in fact it
was the circle rate prevailing in 2014.
Regarding the third issue as to why the District
Administration did not take any effective steps to
dispossess the unauthorized occupants when the
possession of the land was taken in 1993, the finding of
the Committee is that though the possession of the land
was given to UPSIDC in 1993 but as the UPSIDC failed
to make use of the land for a substantially long period,
it gave an opportunity to the farmers to re-enter the
land and do farming and thereby create a situation for
them to make an unreasonable demand.
In regard to the fourth issue as to who are the
persons/authorities responsible for permitting the
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erstwhile tenure holders of the acquired land to continue
in an unauthorized possession of the land, the Committee
has recorded a finding that as since only names of the
officers of UPSIDC posted at Head Office UPSIDC,
Regional Offices at Ghaziabad, Aligarh, Kanpur and
the names of Officers of the Electricity Division,
Kanpur, it was not possible to specify the officers
responsible because of lack of information supplied by
the Department. The Committee has, however, observed
that those officers who were posted in UPSIDC for five
years after possession was given to UPSIDC 1993,
should be held responsible. The Committee has also
noted that the officers continued consultation with the
farmers for payment of compensation instead of getting
the First Appeals filed in the High Court against the
award made by the Reference Court decided.”
(Emphasis added)
13.This Court while taking a serious note of the abovementioned
conclusions, directed to implead THDCIL vide order dated
09.10.2017. Thereafter, the matter was adjourned on many dates in
order to complete the pleadings. In another order dated 31.10.2017
passed by this Court, seven writ petitions were also directed to be
connected along with the leading Writ Petition No.31586 of 2016.
14.By another order dated 06.11.2019, after taking note of the
Enquiry Report and other developments, the matter was directed to be
placed before Hon’ble the Chief Justice with the request to constitute
a bench headed by the Judge who had passed earlier order.
Accordingly, this bench was constituted to decide the present bunch of
writ petitions. In all the writ petitions pleadings have been exchanged.
15.In the leading writ petition, certain affidavits were also filed,
latest being supplementary counter affidavit filed by the respondent
no.4 on 3.1.2020, which is taken on record.
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16.Shri. Raghvendra Singh, learned Advocate General assisted by
Shri.Ajeet Singh, Senior Advocate, Additional Advocate General has
submitted that due to peculiar circumstances prevailing in the
concerned villages, great resentment was shown by villagers and due
to their interference, possession of land was not transferred to the
beneficiaries. He further vehemently submitted that there was no
option left with the State Government except to pay ex-gratia amount
to the villagers in order to get land vacated from villagers. He has
relied upon a supplementary counter affidavit filed on behalf of
respondent no.1 on 06.11.2019 sworn on 05.11.2019. The relevant
paragraphs of the said affidavit are reproduced hereinafter:
“That in between years 1993 and 1995, land measuring
392.317 hectare (969.415 Acre) in village Dashara
Kherli pargana and Tehsil Khurja, District Bulandshahr
and in another village Jahanpur, Naiphal @ Unchagaon
and Rukanpur Tehsil Khurja district bulandshahr, was
acquired by the State Government for Industrial
Development (Growth Centre).
That in the aforesaid villages, after issuance of the
Notification under Sections 4 (1)/17 and 6 (1)/17 of Land
Acquisition Act, after due publication in the local daily
newspapers and after hearing the affected farmers under
Section 9 (1) (3), determination of compensation under
Section 11 (1) of Land Acquisition Act were done on
22.10.1993, 15.10.1993, 16.10.1993 and 31.10.1995
respectively. The compensation as per the award and in
few cases after decision of the court the amount has
already been paid to the farmers.
That at the time of declaration of award, the physical
possession of acquired land of all the four villages
referred to above was transferred to U.P. State Industrial
Development Corporation (UPSIDC) and after deleting
the names of farmers over the acquired land, the name of
U.P. State Industrial Development Corporation (State
Government) was also recorded and mutated in revenue
records.
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That the said land was provided to the UPSIDC, but no
development work was done by the UPSIDC on the land
for quite some time and thereafter in the year 2011, it
was provided to the THDC for setting up Super Thermal
Power Plant (2x660 MW). When THDC started work at
site,the farmers put resistance and started demanding
higher compensation.
That since few days earlier, unfortunate incident of
violence had taken place at Bhatta Parsaul, Greater
Noida while taking possession on the acquired land, the
State Government and other officers of the UPSIDC
and Power Corporation took a decision to settle the
matter after discussing with the farmers by negotiation
in the meeting at district level.
That pursuant to above decision, matter was negotiated
by the District Officers, officers of THDC and Power
Corporation, wherein THDC agreed to pay some more
amount as Ex-gratia at the rate of Rs.721/- per sq.
meter. The farmers had also agreed on the same.
That since the amount was to be paid by the THDC, the
State Government did not raise any objection.
That the THDC India Ltd. Transferred the amount
required for this land including aforementioned Ex-
gratia amount after approval of (Ministry Of Power,
Government of India) Public Investment Board through
RTGS in the account of SLAO, Bulandshahr.
That in the matter of Ex-gratia payment no financial
aid by the State Government is given, and role of the
State Government/District Magistrate is only to ensure
and disburse the payment of Ex-gratia amount to the
farmers through RTGS out of Ex-gratia amount made
by THDC India Limited.
That Ex-gratia payment deposited by the THDC has also
been paid to 1582 farmers and now only 142 farmers are
left to whom the Ex-gratia amount has not been paid and
only they are creating obstruction in the construction of
Thermal Power Project.
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That the State Government did not object for the
enhanced payment because the matter was settled by the
THDC itself and the THDC had also agreed to pay the
Ex-gratia payment.
That the THDC is still ready to make payment and rather
it has already deposited the amount in the account of
Special Land Acquisition Officer, Bulandsahar.”
(Emphasis added)
17.Shri. H.N.Singh, learned Senior Counsel assisted by Shri
Prabhakar Awasthi, Advocate appearing on behalf of respondent no.4
forcefully submitted that actual possession was not given to the
respondent no.4 on any part of land which remained occupied by the
villagers. He has relied upon certain communications in order to show
that respondent no.4, repeatedly, intimated authorities to get the land
vacated from villagers. However, no action was taken. He has relied
upon a supplementary counter affidavit filed on behalf of respondent
no.4 sworn on 2.1.2020. The relevant part of the said supplementary
counter affidavit is reproduced hereinafter:
“That from the fact stated above it is apparent that
it was well informed by the corporation to the
Government as well as to the T.H.D.C. India Ltd. And it
is also noticed by the Government as well as by the
T.H.D.C. that the Corporation has not get the actual
physical possession of the acquired land though the land
stood recorded with the name of the Corporation in the
Government records. The Government of Uttar Pradesh
as well as T.H.D.C. India Ltd. knowing fully well that
actual possession of the land was not available to the
Corporation and there is a Memorandum of
Understanding between the T.H.D.C. and the
Government of Uttar Pradesh to make available the land
of the Corporation to T.H.D.C. India Ltd. and if it is not
possible then to acquire land as per the acquisition
policies of the State Government and this Memorandum
of Understanding was entered on 31.12.2010 without
knowing to the Corporation the Government of Uttar
Pradesh by its own has proceeded to negotiate in the
matter for making available to the land to T.H.D.C. for
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the purpose of project and for that purpose to negotiate
with the farmers to deliver the possession on agreed rate
which was ultimately negotiated @ 721 per Sqa. Meter.
That the Corporation was one of the party at the
instance of the Government to negotiate with the
farmers as land was originally acquired for the
Corporation but virtually in absence of the actual
physical possession the provision of Section 48 of the
Land Acquisition Act stood attracted and the State
Government with the farmers for taking the land under
the agreement and that power was exercised by the
State Government under Section 11 (2) of the Land
Acquisition Act.
That in the entire proceeding the U.P.S.I.D.C. was to
get back the amount already paid with interest and all
the cost of acquisition with interest if payable and all
legal cost was to be paid by the T.H.D.C. India Ltd.
That under Section 4 of the Land Acquisition Act land
may be acquired for public purpose or for Company. The
public purpose has been defined under Section 3 F of the
Land Acquisition Act which include in Clause IV of the
land for the Corporation owned or controlled by the
State. The Corporation owned and controlled by the
Government is defined under Section 3 CC means
nobody corporate established by or under the Central
Provincial or State Act and includes a Government
Company has defined under Section 617 of the
Companies Act, 1956.
That U.P. State Industrial Development Corporation is a
Government Company registered under the Companies
Act, 1956 and is fully owned and controlled by the State
Government and as such the acquisition of the land for
public purpose or for company includes for the
Corporation which is a Company registered under the
Companies Act.
That the State Government may acquired for public
purpose which includes Corporation owned and
controlled by the State Government i.e. Government
Companies registered under the Companies Act and once
the land is acquired for the Corporation the same will
fully vested in the Corporation and the villages of
collector/Special Land Officer or other revenue
authorities work for taken for acquisition and to deliver
the possession and once the land is acquired the same
stood vested free from all encumbrances in the
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Corporation under Section 16 of the Land Acquisition
Act.
That Section 11(2) provided that the land may be
acquired and compensation may be paid under the
agreement and such agreement is not required to be
registered under Section 11 (4). The award is a decree as
provided under Section 26(2) of the Land Acquisition Act
and as such once the award is made and compensation
was paid, possession was taken, no further registration
or stamp is required if the acquisition is for public
purpose and the Company. Section 50 of the Land
Acquisition Act provides that in case of the acquisition on
the case of the local authority or being the company may
adduce the evidence for the determination of
compensation and Section 51 grant exemption from
taking of stamp on award or agreement made under the
Land Acquisition Act.
That with the acquisition of the land in favour of the
Corporation same stood vested in the Corporation and
complete title of the land acquired stood transfer and
Corporation is full owner and was competent to transfer
the subject to getting actual physical possession. The
Corporation in detail has entered at various stages to the
Government, District Administration and the T.H.D.C.
that the Corporation is not in actual physical possession
of the complete land and the land may be transferred
only after getting the possession from the farmers for
which the Government of Uttar Pradesh has accepted to
enter into negotiation with the farmers for getting the
possession and by the Corporation and so that the
Corporation may be in position to transfer the land to
T.H.D.C.
That at the instance of the Government of Uttar
Pradesh the District Magistrate, Bulandshahar and its
authorities have made all effort for holding various
meetings with the farmers and ultimately District
Administration with the approval of the State
Government, entered into an agreement with the
farmers for payment of compensation so that the
farmers may hand over the possession to the
Corporation.
That in entire proceeding Corporation had not at all
failed and Corporation has no means of taking forcibly
possession and admittedly the District Administration
taken of the forcibly possession on the rate of which the
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award was passed will create position of the law and
order. The Corporation has no objection in transferring
the land on the rate awarded by the Court if the State
Government is in position to hand over the actual
physical possession to the Corporation taking the same
from the farmers otherwise the Corporation is to
transfer on the rate agreed by the State Government
through its agencies with the farmers and the said
amount accepted by the T.H.D.C. subject to return all
the amount already paid by the Corporation with
interest.”
(Emphasis added)
18.We have also heard Shri Sanjay Kumar Mishra, learned counsel
for petitioners, Sri M.C. Chaturvedi, learned Additional Advocate
General and Sri H.N. Singh, learned Senior Advocate assisted by Sri
Prabhaker Awasthi, learned counsel for respondent-4 and Sri Ajeet
Singh, learned Chief Standing Counsel assisted by Sri Sudhanshu
Srivastava, learned counsel for respondents- 1 and 3 in the leading
writ petition as well as in other connected writ petitions.
19.The High Powered Committee constituted in pursuance of the
order passed by this Court submitted report on 06.3.2017 which was
filed along with the affidavit of Chief Secretary, Government of U.P.
sworn on 09.3.2017. It is relevant to note here that the conclusions of
enquiry were neither disputed nor challenged by any of the
respondents. The report has dealt with all the issues which were
referred in the order dated 29.8.2016 passed by this Court. It is
essential to mention the conclusion of the Committee on each of the
issues which are as follows:
Point no.1
Where land acquired and compensation determined and
paid under Act, 1894, whether it is permissible for authorities to
again pay compensation from public exchequer to erstwhile land
owners at an exorbitant rate and that too at a rate which is
16
applicable after more than two decades from acquisition
notification under Section 4 of Act, 1894 was issued;
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YGT Ords8 ni mn9T f2 1WRad.rT -ृP-c ,dRd m.l.puN -i
mATS8T mp NAu .r.l- Y14dR mATS8T ldRd
18 रे सम्बन्ध में अन्तर्गत धारा फरे सम्बन्ध में अन्तर्गत धारा न्स
भी सक्षम न्यायालय में स्थिति पूर्णतः स्पष्ट है कि भूमि योस्थि7त स्थिकया गया । इसके अतिरिक्त इसके सम्बन्ध में अन्तर्गत धारा अस्थितस्थिरक्त
यू(1t(On()v(st(nt( ,dRd RiBRiAn No .pCt8T Ords8 -i
nghAl No m1t7 at Nd( Yq4 Audud7u No uU.HT -t Sut
0KL YGT ni u0 at I1f2 0K .- 1WR-RC No ldRd
11(2) के सम्बन्ध में अन्तर्गत धारा
1WRd.rldp )-.P8T p0t9 0ैं क्योंकि सम्पूर्ण कार्यवाही अन्तर्गतक्यों द्वारा अधिनियम केस्थिक सम्पूC8 -du8rd0t mATS8T
ldRd
11(1)
-i mATS8T mSWRnd.RT R0tL H0dJ T- Y(1WR(
भू.N mH8p
(
-RdR ,dRd 1WR.T-R -t mrldRCd wR
m.l.pC8u -t eUPCd
)
स्थिनयमावली
1997
का प्रश्न है कि भूमि तो
YGT .puNdr7t 1WR3NT6 m.lnूचना की स्थितस्थि
16 स्थिसतम्बर
1997
से सम्बन्ध में अन्तर्गत धारा लागू0K wR 1WRIT T 1WR-RC No ldRd
11(2)
के सम्बन्ध में अन्तर्गत धारा लागून
होने सम्बन्ध में अन्तर्गत धारा के सम्बन्ध में अन्तर्गत धारा दृस्थिष्ट है कि भूमिगत स्थिनयमावली के सम्बन्ध में अन्तर्गत धारा लागूहोने सम्बन्ध में अन्तर्गत धारा का प्रश्न ही नहीं है कि भूमि। इसके अतिरिक्त
u0 at I1f2 0K .- Hh ldRd
4(1)
n1.’T ldRd
17
-i mATS8T aू.N m.lSWR0tT -t HdTt 0K Th m.lnूचना
के सम्बन्ध में अन्तर्गत धारा स्थिदनांक से सम्बन्ध में अन्तर्गत धारा आच्छास्थिदत भूस्थिम समस्त भारों द्वारा अधिनियम के से सम्बन्ध में अन्तर्गत धारा मुक्त होकर
सरकार में स्थिति पूर्णतः स्पष्ट है कि भूमि पूC8T6 .p.0T 0U HdTt 0KL T/1‘4dTW NdTWR
1WR.T-R -d Y.4T .pld8RC -d 1WR‘p jiP R0Td 0KL Hh
)1nt n0N.T ni 1WR.T-R .pld8RC p0t9 0UTt 0K Th 1WR.T-R
-i .pld8RC -i .7ui mATS8T ldRd
11(1)
-t -du8rd0t aूस्थिम
myud.MT m.l-dRt ,dRd -t HdTt 0KL eU.PT Ords8 ni u.b
कृP- mn9T f2 0K TU ri ldRd
18
-i mATS8T .H7d Audud7u
में स्थिति पूर्णतः स्पष्ट है कि भूमि रे सम्बन्ध में अन्तर्गत धारा फरे सम्बन्ध में अन्तर्गत धारा न्स कलक्ट है कि भूमिर के सम्बन्ध में अन्तर्गत धारा माध्यम से सम्बन्ध में अन्तर्गत धारा कर सकते सम्बन्ध में अन्तर्गत धारा हैं क्योंकि सम्पूर्ण कार्यवाही अन्तर्गतएवं यहाँ तक उ०प्र० से सम्बन्ध में अन्तर्गत धारा भी
असंतुष्ट है कि भूमि होने सम्बन्ध में अन्तर्गत धारा पर मा० उच्च न्यायालय एवं मा० उच्चतम
न्यायालय की शरण में स्थिति पूर्णतः स्पष्ट है कि भूमि में स्थिति पूर्णतः स्पष्ट है कि भूमि 7ा सकते सम्बन्ध में अन्तर्गत धारा हैं क्योंकि सम्पूर्ण कार्यवाही अन्तर्गत। इसके अतिरिक्त स्पष्ट है कि भूमि है कि भूमि स्थिक इस प्रस्थिक्रया
No ldRd
11(1)
-t -du8rd0t -i 1‘4dTW ldRd
11(2)
-i mATS8T
m.SWRN -du8rd0t -i 1‘4dTW ldRd
11(2)
-i mATS8T m.SWRN
-du8rd0t .-ui Hdpi -d -Uv .r-“1 p0t9 0KL
I1f2 0K .- ldRd
11(2)
-i 1WR.rldp -i mATS8T )1nt n0N.T ni Ords8 -t
eUPCd -t HdTt 0K .Hni 1WR‘pST 1WR-RC No Ords8 -i I3dp
पर एक्स
-
ग्रे सम्बन्ध में अन्तर्गत धारा स्थिशया का नाम स्थिदया गया है कि भूमि
,
7ो मान्य नहीं है कि भूमि। इसके अतिरिक्त
अतः स्पष्ट है कि भूमि उपरोक्त प्रस्थिक्रया से सम्बन्ध में अन्तर्गत धारा स्थिवचस्थिलत होकर एक बार प्रस्थितकर
-i .pld8RC -i Y1RdAT 1ुp6 1WR.T-R -d .pld8RC .r.l- p0t9
माना 7ा सकता है कि भूमि। इसके अतिरिक्त
"
Point No.2.
17
Whether acquired land had market value for the purpose of
compensation at Rs.721/- per square metere on the date when
notification under Section 4 of Act, 1894 was issued particularly
when in this regard awards by district Judge under Section 18 of
Act, 1894 have already been made determining much lesser value;
“
प्रकरण में स्थिति पूर्णतः स्पष्ट है कि भूमि में स्थिति पूर्णतः स्पष्ट है कि भूमि ट है कि भूमिी०एच०र्ड कीी०सी० के सम्बन्ध में अन्तर्गत धारा आने सम्बन्ध में अन्तर्गत धारा के सम्बन्ध में अन्तर्गत धारा उपरान्त स्थिवस्थिभन्न
rdTd8”9 -i 1‘4dTW .bpd9-
12-8-2014 को
यू(1t(On()v(st(nt( -i 1WRhAl .pbij-
,
श्री मनो7
कु मार स्थिसंह के सम्बन्ध में अन्तर्गत धारा पत्र संख्या
132/
एसआई कार्ड कीीसी
/आर०एम०
सूर7पुR -K g1 ,dRd .H7d.l-dRt h 7Abj0R -U mrST
-Rdud Sud .- -d‘T-dRc ni rdTd8 -i 1‘Td4W E(
721/- प्रस्थित
rS8 Nt2R -t bR ni )N n0N.T hpt 0K Or9 :n lpRd.j -U
ट है कि भूमिी०एच०र्ड कीी०सी० से सम्बन्ध में अन्तर्गत धारा प्रा(त कर एक्सग्रे सम्बन्ध में अन्तर्गत धारा स्थिसया के सम्बन्ध में अन्तर्गत धारा रूप में स्थिति पूर्णतः स्पष्ट है कि भूमि
स्थिवतस्थिरत स्थिकया 7ाना है कि भूमि। इसके अतिरिक्त
.H7d.l-dRt,
बुलंदशहर द्वारा तथ्यात्मक आख्या
में स्थिति पूर्णतः स्पष्ट है कि भूमि उस्थिल्लस्थिHत स्थिकया गया है कि भूमि स्थिक ग्राम दशहरा Hे सम्बन्ध में अन्तर्गत धारा रली व
रूकनपुR -t m.H8T aूस्थिम राष्ट है कि भूमि्Rtu RdHNdS8 Ht(2t( RUs -i
दोनों द्वारा अधिनियम के ओर स्थिस् त है कि भूमि त ा इन ग्रामों द्वारा अधिनियम के में स्थिति पूर्णतः स्पष्ट है कि भूमि सड़क के सम्बन्ध में अन्तर्गत धारा स्थिकनारे सम्बन्ध में अन्तर्गत धारा की भूस्थिम
का समझौते सम्बन्ध में अन्तर्गत धारा के सम्बन्ध में अन्तर्गत धारा समय रूपये सम्बन्ध में अन्तर्गत धारा
1120/-
1WR.T rS8Nt2R T3d SWRdN
7हॉनपुR Or9 pduB7 YB8 MJ 4dSdJr No
800/-
रूपये सम्बन्ध में अन्तर्गत धारा प्रस्थित
rS8Nt2R -i I2dg1 bR -ृ.P Y1uUS -i .7O .pld8.RT 3dL
.pld8.RT I2dg1 bR ni -N bR E1ui
721/-
1WR.T rS8 Nt2R 1R
ही कृषकों द्वारा अधिनियम के से सम्बन्ध में अन्तर्गत धारा सहमस्थित प्रा(त की गई का। इसके अतिरिक्त
उक्त से सम्बन्ध में अन्तर्गत धारा स्पष्ट है कि भूमि है कि भूमि स्थिक
m.lSWR0tT aूस्थिम बा7ारू मूल्य रूपये सम्बन्ध में अन्तर्गत धारा
721/-
1WR.T rS8Nt2R
-t bR mATS8T ldRd
-4
m.lnू4pd -t .T.3 1R p0t9 3dL
उपरोक्त से सम्बन्ध में अन्तर्गत धारा स्पष्ट है कि भूमि है कि भूमि स्थिक रू०
721/-
-t bR rP8
2014
की है कि भूमि न स्थिक
m.lnूचना के सम्बन्ध में अन्तर्गत धारा प्रकाशन स्थिदनांक
09.03.1991 ”
की । इसके अतिरिक्त
Point No.3
If possession was taken over of acquired land in 1993, why
District Administration did not take any effective steps to
dispossess unauthorized occupants.
“
सस्थिमस्थित ने सम्बन्ध में अन्तर्गत धारा स् ानीय प्रशासन
,
यू०पी० एस०आई का०र्ड कीी०सी० व
2t(O4(st(nt( ,dRd Y17Nl -Rdui Sui nNIT n n9ST
अस्थिभले सम्बन्ध में अन्तर्गत धारा Hों द्वारा अधिनियम के के सम्बन्ध में अन्तर्गत धारा सम्यक पस्थिरशीलन से सम्बन्ध में अन्तर्गत धारा यह स् ास्थिपत पाया है कि भूमि स्थिक
rIT T6 mATS8T ldRd
-17
mHOnt G7dH No m.lSWR0C -i
उपरान्त भी यू(1t( On()v(st(nt( -d RrKud m.lSWR0tT
भूस्थिम के सम्बन्ध में अन्तर्गत धारा तात्कास्थिलक उपयोग
/
Y1aUS -i nghAl No Ybdntp
R0dL .H7d.l-dRt
,
बुलंदसशहर की आख्या स्थिदनांक
12-06-
1997
No at Y“7iz 0K .- n9b.a8T aूस्थिम का कब्7ा यद्यस्थिप
क्रमशः स्पष्ट है कि भूमि
15-10-93, 16-10-93, 08-10-93
व
07-10-93 को
.r.l- E1 ni I3dpd9T.RT .-ud Hd 4 -d 0K 1RAT aूस्थिम का
18
उपयोग यू० पी०एस०आई का०र्ड कीी०सी० द्वारा गत लम्बे सम्बन्ध में अन्तर्गत धारा समय से सम्बन्ध में अन्तर्गत धारा न
करने सम्बन्ध में अन्तर्गत धारा के सम्बन्ध में अन्तर्गत धारा कारण में स्थिति पूर्णतः स्पष्ट है कि भूमि स्थिकसान मौके सम्बन्ध में अन्तर्गत धारा पर Hे सम्बन्ध में अन्तर्गत धारा ती कर रहे सम्बन्ध में अन्तर्गत धारा हैं क्योंकि सम्पूर्ण कार्यवाही अन्तर्गत। इसके अतिरिक्त
यू० पी० एस० आई का० र्ड कीी० सी० के सम्बन्ध में अन्तर्गत धारा असकारात्मक रवै कि भूमिये सम्बन्ध में अन्तर्गत धारा के सम्बन्ध में अन्तर्गत धारा
-dRC m.lSWR0tT aूस्थिम पर
1993
में स्थिति पूर्णतः स्पष्ट है कि भूमि ही कब्7ा प्रा(त करने सम्बन्ध में अन्तर्गत धारा के सम्बन्ध में अन्तर्गत धारा
Y1RdAT -Uv -du8rd0t p0t9 -Rpi ni 1WRad.rT .-ndpc -U
अवसर प्रा(त हु) .- r0 m.lSWR0tT aूस्थिम पर पुनः स्पष्ट है कि भूमि प्रवे सम्बन्ध में अन्तर्गत धारा श
कर सके सम्बन्ध में अन्तर्गत धारा और भस्थिवष्य में स्थिति पूर्णतः स्पष्ट है कि भूमि पस्थिरस्थिस् याँ तक उ०प्र० इतनी प्रस्थितकूल हो गई का स्थिक
.hpd Yp-i mp .4T NLS -U Irt-dR .-ui YGT m.lSWR.0T
भूस्थिम का उपयोग
/
उपभोग यू०पी०एस०आई का०र्ड कीी०सी० द्वारा स्थिकया
7ाना सम्भव नहीं हो पाया। इसके अतिरिक्त
Y1RUGT -t Sut -du8rd0t ni .r.bT 0UTd 0K .-
mp.l-ृत कृP-c -U m.lSWR.0T aूस्थिम से सम्बन्ध में अन्तर्गत धारा हट है कि भूमिाने सम्बन्ध में अन्तर्गत धारा के सम्बन्ध में अन्तर्गत धारा स्थिलये सम्बन्ध में अन्तर्गत धारा
NdTWR -dSH 1R 1TWRd4dR .-ud SudL :n mr.l No
यू०पी०एस०आई का०़र्ड कीी०सी० की तरफ से सम्बन्ध में अन्तर्गत धारा भू.N 1R -du8 )Rga
कराने सम्बन्ध में अन्तर्गत धारा की दृढ़ ईच्छा ई काच्छा
- ”
शस्थिक्त का अभाव पस्थिरलस्थिक्षत हुआ। इसके अतिरिक्त
Point No.4
Who are the persons/authorities responsible to permit
continued unauthorized possession of erstwhile tenure holders
over acquired land and thereby creating a situation where
Farmers re-entered the land and Administration found itself
handicapped to dispossess them without accepting their demand.
“
:n n.N.T -t mp SWR0 Rd.j -t bR .pld8RC nghAlt hK’-
नहीं हुv wR p 0t mp SWR0 Rd.j -i .pld8RC
/
.rTRC -i nghAl
No .pC8u .7ud SudL MHd8 N9TWRd7u adRT nR-dR -i m1R
सस्थिचव श्री दे सम्बन्ध में अन्तर्गत धारा वे सम्बन्ध में अन्तर्गत धारा न्द्R 4?lRt ,dRd .H7d.l-dRt h 7Abj0R -U
स्थिकसानों द्वारा अधिनियम के के सम्बन्ध में अन्तर्गत धारा सा ने सम्बन्ध में अन्तर्गत धारा गोस्थिशये सम्बन्ध में अन्तर्गत धारा शन करने सम्बन्ध में अन्तर्गत धारा के सम्बन्ध में अन्तर्गत धारा स्थिलये सम्बन्ध में अन्तर्गत धारा कहा गया
(बै कि भूमि@क
स्थिदनांंक
29-01-2014
की प्रस्थितस्थिलस्थिप संलग्न
V))
। इसके अतिरिक्त
इसके सम्बन्ध में अन्तर्गत धारा उपरान्त
.H7d.l-dRt h 7Abj0R ,dRd I3dptu N0/r1ूC8 Tu.GTuc Or9
कृP-c -i 1WR.T.p.luc -i nd3 rdTd8 -R bR -d .pld8RC -R
1WRhAl .pbij- uू०पी०एस०आई का०र्ड कीी०सी० को सूस्थिचत स्थिकया गया। इसके अतिरिक्त
mATT6 mp SWR0 Rd.j -t bR -d .pld8RC
यू(1t(On()v(st(nt( -i 1WRhAl .pbij- ,dRd .-ud SudL
mT6 mp SWR0 Rd.j -t bR .pld8.RT -Rpi No 2t(O4(st(nt(
”
की कोई का भूस्थिमका नहीं है कि भूमि। इसके अतिरिक्त
“
1WR‘pST 1WR-RC -i nghAl No n n9ST 0K .- .H7d 1WRjdnp
द्वारा यू(1t(On()v(st(nt( -i mp RUl 1R T0nt7 z Hd8
7नपद बुलन्दशहर में स्थिति पूर्णतः स्पष्ट है कि भूमि ग्रो से सम्बन्ध में अन्तर्गत धारा न्ट है कि भूमिर हे सम्बन्ध में अन्तर्गत धारा तु
392.32
हे सम्बन्ध में अन्तर्गत धारा क्ट है कि भूमिे सम्बन्ध में अन्तर्गत धारा यर भूस्थिम
,
भू.N mH8p m.l.puN
1894
-t ldRd
4(1)/17
-i mATS8T
19
m.H8T -t SutL ldRd
4(1)/17
-t m.lnूचना का प्रकाशन
स्थिदनांक
9-3-1991 को,
ldRd
6(1)/17
-t m.lnूचना का प्रकाशन
स्थिदनांक
30-3-2011
को करने सम्बन्ध में अन्तर्गत धारा के सम्बन्ध में अन्तर्गत धारा उपरान्त स्थिदनांक
16-10-1993 तक
यू०पी०एस०आई का०र्ड कीी०सी० को कब्7ा प्रदान करते सम्बन्ध में अन्तर्गत धारा हुए उनका नाम
zT?pt No bH8 .-ud SudL :n 1WR-dR )1d.T- .I3T
(Emergency clauses)
bj8Ti 0ुए भू.N -d m.lSWR0C .-ud Sud
.-AT -NHd 1WRdMT -Rpi -i 1‘4dTW T/-d7 1WRadr ni .pNd8C
-du8 p -Rpi -i -dRC Unt .I3.T Y/1Ap 0ुई का स्थि7ससे सम्बन्ध में अन्तर्गत धारा कृषक
अपनी भूस्थिम पर पुनः स्पष्ट है कि भूमि प्रवे सम्बन्ध में अन्तर्गत धारा श कर काश्तकारी करते सम्बन्ध में अन्तर्गत धारा रहे सम्बन्ध में अन्तर्गत धारा । इसके अतिरिक्त
यू(1t(On()v(st(nt( -d u0 -T8Tu 3d .- Hh Yp-i ,dRd
आपास्थितक स्थिस् स्थित
(Emergency clauses)
-i mATS8T aूस्थिम का
m.lSWR0C .-ud Sud 3d TU ri aूस्थिम की बाउण्ट है कि भूमि्Rt -d .pNd8C
-RdTi Or9 SWRU3 niA2R -i .pNd8C -Rpi -t -du8rd0t )Rga
-RTi wR :n-d .rRUl -Rpi 1R I3dptu 1WRjdnp ni 1WRadrt
)r‘u- -du8rd0t -Rpi -d mp RUl -RTiL
अस्थिभले सम्बन्ध में अन्तर्गत धारा Hों द्वारा अधिनियम के से सम्बन्ध में अन्तर्गत धारा स्पष्ट है कि भूमि
0K .- rP8
1997
में स्थिति पूर्णतः स्पष्ट है कि भूमि ग्रो से सम्बन्ध में अन्तर्गत धारा न्ट है कि भूमिर की बाउण्ट है कि भूमि्Rt -i .pNd8C 0iT
स्थिनस्थिवदा स्वीकार की गयी। इसके अतिरिक्त इस प्रकार
4
rPU89 T- :n aूस्थिम का
प्रभावी उपयोग नहीं स्थिकया गया और यह भूस्थिम बगै कि भूमिर दे सम्बन्ध में अन्तर्गत धारा H
-
रे सम्बन्ध में अन्तर्गत धारा H के सम्बन्ध में अन्तर्गत धारा
1"t R0t m3d8T .Hn-U bizpi rd7d -Uv p0t9 3dL
इस कारण में स्थिति पूर्णतः स्पष्ट है कि भूमि
कृषक भू.N mH8p -i Y1RdAT at -d‘T-dRt -RTi R0iL rP8
1997
के सम्बन्ध में अन्तर्गत धारा माह स्थिसतम्बर में स्थिति पूर्णतः स्पष्ट है कि भूमि करार स्थिनयमावली का प्राख्यापन हुआ एवं 7ब
यह 7ानकारी उन काश्तकारों द्वारा अधिनियम के को स्थिमली 7ो अपनी भूस्थिम पर
m.lSWR0C -i 1‘4dTW at -d‘T-dRt -R R0i 3i Th YA0Upi
m1pt HNtp -i mrKl -NHi -U xU"pi -i I3dp 1R YSWR
आन्दोलन आरम्भ कर स्थिदया। इसके अतिरिक्त अस्थिभले सम्बन्ध में अन्तर्गत धारा Hों द्वारा अधिनियम के से सम्बन्ध में अन्तर्गत धारा स्पष्ट है कि भूमि है कि भूमि स्थिक आपास्थितक
स्थिस् त
(Emergency clauses)
-U bjd8Ti 0ुए 7ो भूस्थिम का
m.lSWR0C .-ud Sud r0 .-nt at ITR ni )r‘u- Or9 Y.4T
नहीं @हराया 7ा सकता क्यों द्वारा अधिनियम केस्थिक स्थि7स भू.N -d m.lSWR0C .-ud
गया उस पर स्थिवकास
/
.pNd8C -du8 -at 1WRdRga 0t p0t9 0ुआ और
18
rP8 1‘4dTW SWRU3 niA2R hpdpi -i I3dp 1R 2t(O4(Qst(nt(
की तापीय स्थिवद्युत पस्थिरयो7ना को दे सम्बन्ध में अन्तर्गत धारा स्थिदया गया। इसके अतिरिक्त
"
(Emphasis added)
20.There is no dispute that in the name of ex-gratia payment, the
total compensation amount was increased many folds. Payment of
‘Ex-gratia amount’ was made without any legal basis. High Powered
Committee also came to the specific conclusion that there was no
provision of granting ‘ex-gratia’ payment in Act, 1894 and there was
absolutely no justification for ‘ex-gratia’ payment. However, High
Powered Committee has restrained themselve from naming the
persons responsible for doing such illegal act, which has ultimately
caused huge loss to public exchequer.
20
21.The High Powered Committee had deprecated conduct of
U.P.S.I.D.C. It was also critical to government authorities. The State
Officials, cannnot absolve themselves by contending that ‘since the
amount was to be paid by the T.H.D.C., the State Government did not
raise any objection.’ The amount paid by T.H.D.C. is also a public
money. The State has miserably failed to place on record what was the
actual condition of the land? Whether any attempt was undertaken to
remove the encroachers? Why State authorities surrendered before
encroachers? Who were the Officers responsible for knowingly taking
illegal decision and why not recovery be effected from erring officials
of such illegal payment in the name of ‘ex-gratia amount’? These are
the questions among others which remained unanswered.
22.The above-mentioned facts are self speaking and smacks of
something scammish and in order to unearth the conspiracy behind
such illegal decision, a proper investigation is warranted. Since
number of government officials including senior officials belong to
administrative cadre like I.A.S., P. C.S., are likely to be involved in
this matter, it is not advisable to direct investigation to be conducted
by State Police Administration. In order to unearth the conspiracy of
payment of illegal ‘ex-gratia amount’ it is necessary to have fair,
honest and complete investigation.
23.In Common Cause, A Registered Society Vs. Union of India &
Ors. (1999) 6 SCC 667, Court held in paras 174, 176 and 177 that:
“174. The other direction, namely, the
direction to the C.B.I. to investigate "any other
offence" is wholly erroneous and cannot be
sustained. Obviously, direction for investigation can
be given only if an offence is, prima facie, found to
have been committed or a person's involvement is
prima facie established, but a direction to the C.B.I.
to investigate whether any person has committed an
offence or not cannot be legally given. Such a
direction would be contrary to the concept and
philosophy of "LIFE" and "LIBERTY" guaranteed to
21
a person under Article 21 of the Constitution. This
direction is in complete negation of various decisions
of this Court in which the concept of "LIFE" has
been explained in a manner which has infused
"LIFE" into the letters of Article 21.”
"176. A man has, therefore, to be left alone to enjoy
"LIFE" without fetters. He cannot be hounded out by
the Police or C.B.I. merely to find out whether he has
committed any offence or is living as a law-abiding
citizen. Even under Article 142 of the Constitution,
such a direction cannot be issued. While passing an
order under Article 142 of the Constitution, this
Court cannot ignore the substantive provision of law
much less the constitutional rights available to a
person. (See : Supreme Court Bar Association vs.
Union of India, (1998) 4 SCC 409; AIR 1998 SC
1895).
“177.Mr. Gopal Subramaniam contended that the
Court has itself taken care to say that the C.B.I. in
the matter of investigation, would not be influenced
by any observation made in the Judgment and that it
would independently hold the investigation into the
offence of criminal breach of trust or any other
offence. To this, there is a vehement reply from Mr.
Parasaran and we think he is right. It is contended
by him that this Court having recorded a finding that
the petitioner on being appointed as a Minister in the
Central Cabinet, held a trust on behalf of the people
and further that he cannot be permitted to commit
breach of the trust reposed in him by the people and
still further that the petitioner had deliberately acted
in a wholly arbitrary and unjust manner and that the
allotments made by him were wholly mala fide and
for extraneous consideration, the direction to the
CBI not to be influenced by any observations made
by this Court in the Judgment, is in the nature of
palliative. The CBI has been directed to register a
case against the petitioner in respect of the
allegations dealt with and findings reached by this
Court in the Judgment under review. Once the
findings are directed to be treated as part of the First
Information Report, the further direction that the
CBI shall not be influenced by any observations
made by this Court or the findings recorded by it, is
mere lullaby. “
22
24.In Secretary, Minor Irrigation & Rural Engineering Services,
U.P. and Others Vs. Sahngoo Ram Arya & Anr. (2002) 5 SCC 521,
Court held in paras 5 and 6 that:
“5. While none can dispute the power of the High
Court under Article 226 to direct an inquiry by the CBI, the
said power can be exercised only in cases where there is
sufficient material to come to a prima facie conclusion that
there is a need for such inquiry. It is not sufficient to have
such material in the pleadings. On the contrary, there is a
need for the High Court on consideration of such pleadings
to come to the conclusion that the material before it is
sufficient to direct such an inquiry by the CBI.
This is a requirement which is clearly deducible from the
judgment of this Court in the case of Common Cause,
(1999) 6 SCC 667. This Court in the said judgment at
paragraph 174 of the report has held thus: (SCC p.750,
para 174)
"174.The other direction, namely, the direction to
CBI to investigate ‘any other offence’ is wholly
erroneous and cannot be sustained. Obviously,
direction for investigation can be given only if an
offence is, prima facie, found to have been
committed or a person's involvement is prima
facie established, but a direction to CBI to
investigate whether any person has committed an
offence or not cannot be legally given. Such a
direction would be contrary to the concept and
philosophy of ‘LIFE’ and ‘LIBERTY’ guaranteed
to a person under Article 21 of the Constitution.
This direction is in complete negation of various
decisions of this Court in which the concept of
‘LIFE’ has been explained in a manner which has
infused ‘LIFE’ into the letters of Article 21.”
6. It is seen from the above decision of this Court that the
right to life under Article 21 includes the right of a person
to live without being hounded by the Police or the CBI to
find out whether he has committed any offence or is living
as a law-abiding citizen. Therefore, it is clear that a
23
decision to direct an inquiry by the CBI against a person
can only be done if the High Court after considering the
material on record comes to a conclusion that such
material does disclose a prima facie case calling for an
investigation by the CBI or any other similar agency, and
the same cannot be done as a matter of routine or merely
because a party makes some such allegations. In the
instant case, we see that the High Court without coming to
a definite conclusion that there is a prima facie case
established to direct an inquiry has proceeded on the basis
of “ifs” and '”buts” and thought it appropriate that the
inquiry should be made by the CBI. With respect, we think
that this is not what is required by the law as laid down by
this Court in the case of Common Cause, (1999) 6 SCC
667.”
(Emphasis added)
25.In State of West Bengal and Others Vs. Committee for
protection of Democratic Rights, West Bengal & Ors. (2010) 3 SCC
571, Court in paras 68, 69 and 70 held that:
“68.Thus, having examined the rival contentions in the context
of the Constitutional Scheme, we conclude as follows:
(i) The fundamental rights, enshrined in Part III of the
Constitution, are inherent and cannot be extinguished by
any Constitutional or Statutory provision. Any law that
abrogates or abridges such rights would be violative of the
basic structure doctrine. The actual effect and impact of the
law on the rights guaranteed under Part III has to be taken
into account in determining whether or not it destroys the
basic structure.
(ii) Article 21 of the Constitution in its broad perspective
seeks to protect the persons of their lives and personal
liberties except according to the procedure established by
law. The said Article in its broad application not only takes
within its fold enforcement of the rights of an accused but
also the rights of the victim. The State has a duty to enforce
the human rights of a citizen providing for fair and
impartial investigation against any person accused of
commission of a cognizable offence, which may include its
24
own officers. In certain situations even a witness to the
crime may seek for and shall be granted protection by the
State.
(iii) In view of the constitutional scheme and the
jurisdiction conferred on this Court under Article 32 and
on the High Courts under Article 226 of the Constitution
the power of judicial review being an integral part of the
basic structure of the Constitution, no Act of Parliament
can exclude or curtail the powers of the Constitutional
Courts with regard to the enforcement of fundamental
rights. As a matter of fact, such a power is essential to give
practicable content to the objectives of the Constitution
embodied in Part III and other parts of the Constitution.
Moreover, in a federal constitution, the distribution of
legislative powers between the Parliament and the State
Legislature involves limitation on legislative powers and,
therefore, this requires an authority other than the
Parliament to ascertain whether such limitations are
transgressed. Judicial review acts as the final arbiter not
only to give effect to the distribution of legislative powers
between the Parliament and the State Legislatures, it is
also necessary to show any transgression by each entity.
Therefore, to borrow the words of Lord Steyn, judicial
review is justified by combination of "the principles of
separation of powers, rule of law, the principle of
constitutionality and the reach of judicial review".
(iv) If the federal structure is violated by any legislative
action, the Constitution takes care to protect the federal
structure by ensuring that Courts act as guardians and
interpreters of the Constitution and provide remedy under
Articles 32 and 226, whenever there is an attempted
violation. In the circumstances, any direction by the
Supreme Court or the High Court in exercise of power
under Article 32 or 226 to uphold the Constitution and
maintain the rule of law cannot be termed as violating the
federal structure.
(v)Restriction on the Parliament by the Constitution and
restriction on the Executive by Parliament under an
25
enactment, do not amount to restriction on the power of the
Judiciary under Article 32 and 226 of the Constitution.
(vi) If in terms of Entry 2 of List II of The Seventh
Schedule on the one hand and Entry 2-A and Entry 80 of
List I on the other, an investigation by another agency is
permissible subject to grant of consent by the State
concerned, there is no reason as to why, in an exceptional
situation, court would be precluded from exercising the
same power which the Union could exercise in terms of the
provisions of the Statute. In our opinion, exercise of such
power by the constitutional courts would not violate the
doctrine of separation of powers. In fact, if in such a
situation the court fails to grant relief, it would be failing in
its constitutional duty.
(vii) When the Special Police Act itself provides that subject
to the consent by the State, the CBI can take up investigation
in relation to the crime which was otherwise within the
jurisdiction of the State Police, the court can also exercise
its constitutional power of judicial review and direct the CBI
to take up the investigation within the jurisdiction of the
State. The power of the High Court under Article 226 of the
Constitution cannot be taken away, curtailed or diluted by
Section 6 of the Special Police Act. Irrespective of there
being any statutory provision acting as a restriction on the
powers of the Courts, the restriction imposed by Section 6
of the Special Police Act on the powers of the Union, cannot
be read as restriction on the powers of the Constitutional
Courts. Therefore, exercise of power of judicial review by
the High Court, in our opinion, would not amount to
infringement of either the doctrine of separation of power or
the federal structure.
69. In the final analysis, our answer to the question referred
is that a direction by the High Court, in exercise of its
jurisdiction under Article 226 of the Constitution, to the
CBI to investigate a cognizable offence alleged to have
been committed within the territory of a State without the
consent of that State will neither impinge upon the federal
structure of the Constitution nor violate the doctrine of
26
separation of power and shall be valid in law. Being the
protectors of civil liberties of the citizens, this Court and
the High Courts have not only the power and jurisdiction
but also an obligation to protect the fundamental rights,
guaranteed by Part III in general and under Article 21 of
the Constitution in particular, zealously and vigilantly.
70.Before parting with the case, we deem it necessary to
emphasise that despite wide powers conferred by Articles 32
and 226 of the Constitution, while passing any order, the
Courts must bear in mind certain self-imposed limitations
on the exercise of these Constitutional powers. The very
plenitude of the power under the said Articles requires great
caution in its exercise. In so far as the question of issuing a
direction to the CBI to conduct investigation in a case is
concerned, although no inflexible guidelines can be laid
down to decide whether or not such power should be
exercised but time and again it has been reiterated that such
an order is not to be passed as a matter of routine or merely
because a party has levelled some allegations against the
local police. This extra-ordinary power must be exercised
sparingly, cautiously and in exceptional situations where it
becomes necessary to provide credibility and instil
confidence in investigations or where the incident may have
national and international ramifications or where such an
order may be necessary for doing complete justice and
enforcing the fundamental rights. Otherwise the CBI would
be flooded with a large number of cases and with limited
resources, may find it difficult to properly investigate even
serious cases and in the process lose its credibility and
purpose with unsatisfactory investigations.”
(Emphasis added)
26.In K.V. Rajendran Vs. Superintendent of Police CBCID South
Zone, Chennai & Ors, (2013) 12 SCC 480, Court held in paras 13
and 17 that:
“13.The issue involved herein, is no more res
integra. This Court has time and again dealt with the
issue under what circumstances the investigation can
be transferred from the State investigating agency to
any other independent investigating agency like CBI.
27
It has been held that the power of transferring such
investigation must be in rare and exceptional cases
where the court finds it necessary in order to do
justice between the parties and to instil confidence in
the public mind, or where investigation by the State
police lacks credibility and it is necessary for having
“a fair, honest and complete investigation”, and
particularly, when it is imperative to retain public
confidence in the impartial working of the State
agencies. Where the investigation has already been
completed and charge sheet has been filed,
ordinarily superior courts should not reopen the
investigation and it should be left open to the court,
where the charge sheet has been filed, to proceed
with the matter in accordance with law. Under no
circumstances, should the court make any expression
of its opinion on merit relating to any accusation
against any individual. (Vide: Gudulare M.J.
Cherian v. Union of India, (1992) 1 SCC 397;
R.S.Sodhi v. State of U.P., AIR 1994 SC 38; Punjab
and Haryana High Court Bar Assn, v. State of
Punjab, AIR 1994 SC 1023; Vineet Narain v. Union
of India, (1996) 2 SCC 199; Union of India v. Sushil
Kumar Modi., AIR 1997 SC 314; Disha v. State of
Gujarat., AIR 2011 SC 3168; Rajendrer Singh
Pathania v. State (NCT of Delhi), (2011) 13 SCC
329; and State of Punjab v. Devender Pal Singh
Bhullar, AIR 2012 SC 364).
17.In view of the above, the law can be
summarised to the effect that the Court could
exercise its Constitutional powers for transferring
an investigation from the State investigating agency
to any other independent investigating agency like
CBI only in rare and exceptional cases. Such as
where high officials of State authorities are
involved, or the accusation itself is against the top
officials of the investigating agency thereby allowing
them to influence the investigation, and further that it
is so necessary to do justice and to instil confidence
28
in the investigation or where the investigation is
prima facie found to be tainted/biased.”
(Emphasis added)
27.In Dharam Pal Vs. State of Haryana & Ors, (2016) 4 SCC
160, Court in paras 24 and 25 held that:
“24. Be it noted here that the constitutional
courts can direct for further investigation or
investigation by some other investigating agency.
The purpose is, there has to be a fair investigation
and a fair trial. The fair trial may be quite difficult
unless there is a fair investigation. We are absolutely
conscious that direction for further investigation by
another agency has to be very sparingly issued but
the facts depicted in this case compel us to exercise
the said power. We are disposed to think that purpose
of justice commands that the cause of the victim, the
husband of the deceased, deserves to be answered so
that miscarriage of justice is avoided. Therefore, in
this case the stage of the case cannot be the
governing factor.
25. We may further elucidate. The power to order
fresh, de-novo or re-investigation being vested with
the Constitutional Courts, the commencement of a
trial and examination of some witnesses cannot be
an absolute impediment for exercising the said
constitutional power which is meant to ensure a
fair and just investigation. It can never be forgotten
that as the great ocean has only one test, the test of
salt, so does justice has one flavour, the flavour of
answering to the distress of the people without any
discrimination. We may hasten to add that the
democratic setup has the potentiality of ruination if a
citizen feels, the truth uttered by a poor man is
seldom listened to. Not for nothing it has been said
that sun rises and sun sets, light and darkness, winter
and spring come and go, even the course of time is
playful but truth remains and sparkles when justice is
done. It is the bounden duty of a Court of law to
29
uphold the truth and truth means absence of deceit,
absence of fraud and in a criminal investigation a
real and fair investigation, not an investigation that
reveals itself as a sham one. It is not acceptable. It
has to be kept uppermost in mind that impartial and
truthful investigation is imperative. If there is
indentation or concavity in the investigation, can the
“faith” in investigation be regarded as the gospel
truth? Will it have the sanctity or the purity of a
genuine investigation? If a grave suspicion arises
with regard to the investigation, should a
Constitutional Court close its hands and accept the
proposition that as the trial has commenced, the
matter is beyond it? That is the "tour de force" of the
prosecution and if we allow ourselves to say so it has
become "'idee fixe" but in our view the imperium of
the Constitutional Courts cannot be stifled or
smothered by bon mot or polemic. Of course, the
suspicion must have some sort of base and
foundation and not a figment of one's wild
imagination. One may think an impartial
investigation would be a nostrum but not doing so
would be like playing possum. As has been stated
earlier, facts are self-evident and the grieved
protagonist, a person belonging to the lower strata.
He should not harbour the feeling that he is an
“orphan under law”.
(Emphasis added)
28.In Bimal Gurung Vs. Union of India & Ors, (2018) 15 SCC
480, Court in paras 27 and 29 held that:
“27.Before we advert to the facts of the present case and
prayers made in the writ petition, it is useful to recall necessary
principles as enumerated by this Court while exercising
jurisdiction by this Court under Article 32 or the High Court
under Article 226 for transferring investigation of a criminal
case to a Central Agency. The Constitution Bench of this Court
in State of West Bengal Vs. Committee for Protection of
Democratic Rights, (2010) 3 SCC 571, has authoritatively laid
down that the High Court under Article 226 and this Court
30
under Article 32 can issue direction to CBI to investigate a
cognizable offence within the State without consent of that
State. The Constitution Bench also in the above context has
held that although this Court has implied power and
jurisdiction to direct for the transfer to CBI to investigate a
cognizable offence but also has obligation to exercise the said
power with great caution which must be exercised sparingly,
cautiously and in exceptional situations. In paragraph 70 with
regard to exercise of such power following has been laid down
by the Constitution Bench:
“70. Before parting with the case, we deem it necessary to
emphasise that despite wide powers conferred by Articles
32 and 226 of the Constitution, while passing any order,
the Courts must bear in mind certain self-imposed
limitations on the exercise of these constitutional powers.
The very plenitude of the power under the said articles
requires great caution in its exercise. Insofar as the
question of issuing a direction to CBI to conduct
investigation in a case is concerned, although no inflexible
guidelines can be laid down to decide whether or not such
power should be exercised but time and again it has been
reiterated that such an order is not to be passed as a
matter of routine or merely because a party has levelled
some allegations against the local police. This
extraordinary power must be exercised sparingly,
cautiously and in exceptional situations where it becomes
necessary to provide credibility and instil confidence in
investigations or where the incident may have national and
international ramifications or where such an order may be
necessary for doing complete justice and enforcing the
fundamental rights. Otherwise CBI would be flooded with
a large number of cases and with limited resources, may
find it difficult to properly investigate even serious cases
and in the process lose its credibility and purpose with
unsatisfactory investigations.”
29. The law is thus well settled that power of transferring
investigation to other investigating agency must be exercised
in rare and exceptional cases where the Court finds it
necessary in order to do justice between the parties to instil
confidence in the public mind, or where investigation by the
31
State Police lacks credibility. Such power has to be exercised in
rare and exceptional cases. In K.V. Rajendran vs. Supt. Of
Police, (2013) 12 SCC 480, this Court has noted few
circumstances where the Court could exercise its constitutional
power to transfer of investigation from State Police to CBI such
as: (i) where high officials of State authorities are involved, or
(ii) where the accusation itself is against the top officials of the
investigating agency thereby allowing them to influence the
investigation, or (iii)where investigation prima facie is found to
be tainted/biased.”
(Emphasis added)
29.In E. Sivakumar Vs. Union of India & Ors, (2018) 7 SCC
365, Court in paras 12, 13, 14 and 16 held that:
“12. The third contention urged by the petitioner, that
neither special reasons have been recorded nor the status
report of the investigation already done by the Vigilance
Commission has been considered, also does not commend us.
As noted earlier, the High Court in the impugned judgment has
exhaustively analysed all aspects of the matter as can be
discerned from paragraphs 84 to 87, 91 to 97, 100 to 107; and
again in paragraphs 141-144 which have been extracted
hitherto. In our opinion, in the peculiar facts of the present
case, the High Court has justly transferred the investigation to
CBI after due consideration of all the relevant aspects, which
approach is consistent with the settled legal position expounded
in the decisions adverted to in the impugned judgment,
including the decision in Subrata Chattoraj Vs. Union of India,
(2014) 8 SCC 768, which predicates that transfer of
investigation to CBI does not depend on the inadequacy of
inquiry/investigation carried out by the State police. We agree
with the High Court that the facts of the present case and the
nature of crime being investigated warrants CBI investigation.
13. In Dharam Pal Vs. State of Haryana (2016) 4 SCC 160,
this Court has underscored the imperativeness of ensuring a
fair and impartial investigation against any person accused of
commission of cognizable offence as the primary emphasis is
on instilling faith in public at large and the investigating
agency. The dictum in paragraph 24 and 25 of this reported
decision is quite instructive which read thus:
32
“24. Be it noted here that the constitutional courts can
direct for further investigation or investigation by some
other investigating agency. The purpose is, there has to be
a fair investigation and a fair trial. The fair trial may be
quite difficult unless there is a fair investigation. We are
absolutely conscious that direction for further
investigation by another agency has to be very sparingly
issued but the facts depicted in this case compel us to
exercise the said power. We are disposed to think that
purpose of justice commands that the cause of the victim,
the husband of the deceased, deserves to be answered so
that miscarriage of justice is avoided. Therefore, in this
case the stage of the case cannot be the governing factor.
25. We may further elucidate. The power to order fresh, de
novo or reinvestigation being vested with the
constitutional courts, the commencement of a trial and
examination of some witnesses cannot be an absolute
impediment for exercising the said constitutional power
which is meant to ensure a fair and just investigation. It
can never be forgotten that as the great ocean has only
one test, the test of salt, so does justice has one flavour,
the flavour of answering to the distress of the people
without any discrimination. We may hasten to add that the
democratic set-up has the potentiality of ruination if a
citizen feels, the truth uttered by a poor man is seldom
listened to. Not for nothing it has been said that sun rises
and sun sets, light and darkness, winter and spring come
and go, even the course of time is playful but truth
remains and sparkles when justice is done. It is the
bounden duty of a court of law to uphold the truth and
truth means absence of deceit, absence of fraud and in a
criminal investigation a real and fair investigation, not an
investigation that reveals itself as a sham one. It is not
acceptable. It has to be kept uppermost in mind that
impartial and truthful investigation is imperative. If there
is indentation or concavity in the investigation, can the
“faith” in investigation be regarded as the gospel truth?
Will it have the sanctity or the purity of a genuine
investigation? If a grave suspicion arises with regard to
the investigation, should a constitutional court close its
33
hands and accept the proposition that as the trial has
commenced, the matter is beyond it? That is the “tour de
force” of the prosecution and if we allow ourselves to say
so it has become “idée fixe” but in our view the imperium
of the constitutional courts cannot be stifled or smothered
by bon mot or polemic. Of course, the suspicion must
have some sort of base and foundation and not a figment
of one’s wild imagination. One may think an impartial
investigation would be a nostrum but not doing so would
be like playing possum. As has been stated earlier, facts
are self-evident and the grieved protagonist, a person
belonging to the lower strata. He should not harbour the
feeling that he is an “orphan under law”.
14. Suffice it to observe that we do not intend to deviate from
the conclusion reached by the High Court that in the peculiar
facts and circumstances of the case, it is but appropriate that
investigation of the crime in question must be entrusted to
CBI.
16. While parting, we may restate the observations made by the
High Court in para 144 of the impugned judgment to clarify
that the transfer of investigation of the crime in question to CBI
is no reflection on the efficiency or efficacy of the investigation
done by the State Vigilance Commission. We reiterate that
position.”
(Emphasis added)
30.In Shree Shree Ram Janki Asthan Tapovan Mandir And
Another Vs. State of Jharkhand and Ors, (2019) 6 SCC 777, Court
has held in paras 12,14 and 22 that:
“12. The question as to whether the High Court
could direct CBI to take over investigation in the facts of
the present case needs to be examined. The Constitution
Bench in its judgment State of W.B. Vs. Committee for
Protection of Democratic Rights, (2010) 3 SCC 571 has
examined the question as to the rights of CBI to investigate
a criminal offence in a State without its consent. This Court
examined Entry 2 of List II of VII Schedule of the
Constitution. It was held that the legislative power of the
Union to provide for the regular police force of one State to
34
exercise power and jurisdiction in any area outside the
State can only be exercised with the consent of the
Government of that particular State in which such area is
situated. The Court held that though the Court had wide
powers conferred by Articles 32 and 226 of the
Constitution, but it must bear in mind certain self-imposed
limitations on the exercise of these constitutional powers.
This extraordinary power must be exercised sparingly,
cautiously and in exceptional situations where it becomes
necessary to provide credibility and instil confidence in
investigation or where the incident may have national or
international ramifications or where such an order is
necessary for doing complete justice and enforcing
fundamental rights. 14. The Court approved earlier two
Judge Bench Judgment Minor Irrigation & Rural Engg.
Services vs. Sahngoo Ram Arya (2002) 5 SCC 521, wherein
it was held that the High Court under Article 226 of the
Constitution can direct inquiry to be conducted by CBI but
such power can be exercised only in cases where there is
sufficient material to come to a prima facie conclusion that
there is need for such inquiry. It was held that it is not
sufficient to have such material in the pleadings. The Court
also held that the right to live under Article 21 include the
right of a person to live without being hounded by the
police or CBI to find out whether he has committed any
offence or is living as a law-abiding citizen.
22. It may be kept in mind that the public order (Entry 1)
and the police (Entry 2) is a State subject falling in List II
of the VII Schedule of the Constitution. It is a primary
responsibility of the investigating agency of the State Police
to investigate all offences which are committed within its
jurisdiction. The investigations can be entrusted to Central
Bureau of Investigation on satisfaction of the conditions
as specified therein only in exceptional circumstances as
laid down in State of W.B. Vs. Committee for Protection of
Democratic Right, (2010) 3 SCC 571 case. Such power
cannot and should not be exercised in a routine manner
without examining the complexities, nature of offence and
some time the tardy progress in the investigations
35
involving high officials of the State investigating agency
itself.”
(Emphasis added)
31.From the above mentioned judgments, it is evident that High
Court under Article 226 of the Constitution can issue direction to
C.B.I. to investigate a case. However, Court must bear self imposed
limitations on the exercise of the constitutional power. This power
must be exercised to provide credibility and instil confidence in the
investigation. Few circumstances where High Court could exercise
such power is where higher officials of State authorities are involved.
In the present case all the facts are glaring. The top officials on their
own had decided to pay ex-gratia compensation, which was known to
them to be illegal. In this case, State police would not be able to
investigate fairly and we are of the considered view that in order to
unearth truth, present matter should be referred to C.B.I. for
investigation.
32.In these peculiar facts and circumstances, we have no other
option but to direct Central Bureau of Investigation to conduct a
preliminary inquiry and to register a First Information Report to
unearth the scam and to submit the status report of investigation to
this Court in a sealed cover after three months. Let a certified copy of
this order along with entire record be sent to the Director, C.B.I. New
Delhi for compliance of the order. Registrar General of High Court is
directed to take appropriate steps to comply the order.
33.With regard to Writ Petition No.31586 of 2016, the prayer
made therein was regarding payment of compensation. We have not
stopped the process of granting ex-gratia compensation, therefore,
petitioners may be paid compensation, but it would be subject to
ultimate result of the writ petition.
34.The petitioners of Writ Petition Nos.52602 of 2011, 59955 of
2012, 59958 of 2012, 59962 of 2012 and 59964 of 2012, have prayed
36
for quashing of the notifications dated 13.2.1991 and 23.3.1991. All
these writ petitions were filed in the year 2011 and 2012, after a
period of about two decades of issuance of impugned notifications.
35. We have gone through the contents of all these writ petitions
and found that there is not a single averment to explain such huge
delay.
36.Learned counsel appearing on behalf of the State submitted that
these writ petitions may be dismissed on the ground of delay and
laches.
37. This issue has been dealt with by the Apex Court in various
judgments.
38. In Aflatoon Vs. Lt. Governor of Delhi, 1975 (4) SCC 285,
Constitution Bench held in paras 9, 10 and 11 that:
“9.Assuming for the moment that the public purpose was
not sufficiently specified in the notification, did the appellants
make a grievance of it at the appropriate time? If the appellants
had really been prejudiced by the non- specification of the
public purpose for which the plots in which they were interested
were needed, they should have taken steps to have the
notification quashed on that ground within a reasonable time.
They did not move in the matter even after the declaration
under Section 6 was published in 1966. They approached the
High Court with their writ petitions only in 1970 when the
notices under Section 9 were issued to them. In the concluding
portion of the judgment in Munshi Singh v. Union of India
(supra), it was observed: [SCC p.344 para 10] :
"In matters of this nature we would have taken due notice
of laches on the part of the appellants while granting the
above relief but we are satisfied that so far as the present
appellants are concerned they have not been guilty of
laches, delay or acquiescence, at any stage."
We do not think that the appellants were vigilant.
37
10. That apart, the appellants did not contend before the
High Court that as the particulars of the public purpose were
not specified in the notification issued under Section 4, they
were prejudiced in that they could not effectively exercise their
right under Section 5A. As the plea was not raised by the
appellants in the writ petitions filed before the High Court, we
do not think that the appellants are entitled to have the plea
considered in these appeals.
11.Nor do we think that the petitioners in the writ
petitions should be allowed to raise this plea in view of their
conduct in not challenging the validity of the, notification even
after the publication of the declaration under Section 6 in 1966.
Of the two writ petitions, one is filed by one of the appellants.
There was apparently no reason why the writ petitioners should
have waited till 1972 to come to this Court for challenging the
validity of the notification issued in 1959 on the ground that the
particulars of the public purpose were not specified. A valid
notification under Section 4 is a sine qua non for initiation of
proceedings for acquisition of property. To have sat on the
fence and allowed the Government to complete the acquisition
proceedings on the basis that the notification under Section 4
and the declaration under Section 6 were valid and then to
attack the notification on grounds which were available to them
at the time when the notification was published would be a
putting premium on dilatory tactics. The writ petitions are
liable to be dismissed on the ground of laches and delay on the
part of the petitioners (see Tilokchand Motichand v. H.B.
Munshi (1969) 1 SCC 110 and Rabindranath Bose v. Union of
India, (1970) 1 SCC 84.”
39.In P. Chinnanna & Ors Vs. State of A.P. & Ors, (1994) 5 SCC
486, Court held in para 11 that:
“11. …..In fact, in relation to acquisition proceeding
involving acquisition of land for public purposes, the court
concerned must be averse to entertain writ petitions involving
the challenge to such acquisition where there is avoidable delay
or laches since such acquisition, if set aside, would not only
involve enormous loss of public money but also cause undue
delay in carrying out projects meant for general public good.”
40.In State of T.N. & Ors Vs. L. Krishnan & Ors, (1996) 1 SCC
250, Court held in paras 40 and 41 that:
38
“40.There is yet another and a very strong factor
militating against the writ petitioners. Not only did they fail to
file any objections in the enquiries held under Section 5-A, they
also failed to act soon after the declarations under Section 6
were made. As stated above, the declarations under Section 6
were made in the year 1978 and the present writ petitions were
filed only sometime in the year 1982-83 when the awards were
about to be passed. It has been pointed out in Aflatoon (1975) 4
SCC 285 that laches of this nature are fatal. Having held that
the public purpose specified in the notification concerned
therein is not vague, Mathew, J. made the following
observations:(SCC pp.290-91 paras 9-12)
“Assuming for the moment that the public purpose
was not sufficiently specified in the notification, did the
appellants make a grievance of it at the appropriate
time? If the appellants had really been prejudiced by the
non-specification of the public purpose for which the
plots in which they were interested were needed, they
should have taken steps to have the notification quashed
on that ground within a reasonable time. They did not
move in the matter even after the declaration under
Section 6 was published in 1966. They approached the
High Court with their writ petitions only in 1970 when
the notices under Section 9 were issued to them.
x xx
Nor do we think that the petitioners in the writ
petitions should be allowed to raise this plea in view of
their conduct in not challenging the validity of the
notification even after the publication of the declaration
under Section 6 in 1966. Of the two writ petitions, one is
filed by one of the appellants. There was apparently no
reason why the writ petitioners should have waited till
1972 to come to this Court for challenging the validity of
the notification issued in 1959 of the ground that the
particulars of the public purpose were not specified. A
valid notification under Section 4 is a sine qua non for
initiation of proceedings for acquisition of property. To
have sat on the fence and allowed the Government to
complete the acquisition proceedings on the basis that
39
the notification under Section 4 and the declaration
under Section 6 were valid and then to attack the
notification on grounds which were available to them at
the time when the notification was published would be
putting a premium on dilatory tactics. The writ petitions
are liable to be dismissed on the ground of laches and
delay on the part of the petitioners (See Tilokchand
Motichand v. H.B. Munshi (1969) 1 SCC 110 and
Rabindranath Bose v. Union of India (1970) 1 SCC 84).
From the counter affidavit filed on behalf of the
Government, it is clear that the Government have allotted
a large portion of the land after the acquisition
proceedings were finalised to cooperative housing
societies. To quash the notification at this stage would
disturb the rights of third parties who are not before the
Court.”
41. The above observations speak for themselves - and
are fatal to the writ petitioners.”
41. In Urban Improvement Trust, Udaipur Vs. Bheru Lal & Ors,
(2002) 7 SCC 712, Court held in para 21 that:
“21.Further, learned counsel for the appellant rightly
submitted that on the ground of delay and laches in filing the
writ petitions, the Court ought to have dismissed the same. In
the present case, as stated above, the Notification under
Section 6 was published in the Official Gazette on 24.5.1994.
The writ petitions are virtually filed after two years. In a case
where land is needed for a public purpose, that too for a
scheme framed under the Urban Development Act, the Court
ought to have taken care in not entertaining the same on the
ground of delay as it is likely to cause serious prejudice to the
persons for whose benefit the Housing Scheme is framed under
the Urban Development Act and also in having planned
development of the area. The law on this point is well settled.
(Reliance Petroleum Ltd. v. Zaver Chand Popatlal Sumaira
(1996) 4 SCC 579 and Hari Singh v. State of U.P. (1984) 2
SCC 624).”
40
42. In Swaika Properties (P) Ltd. & Anr. Vs. State of Rajasthan &
Ors, (2008 ) 4 SCC 695, Court held in paras 16, 17 and 18 that:
“16. This Court has repeatedly held that a writ petition
challenging the notification for acquisition of land, if filed after
the possession having been taken, is not maintainable. In
Municipal Corpn. of Greater Bombay v. Industrial
Development Investment Co. (P) Ltd.(1996) 11 SCC 501 where
K. Ramaswamy, J. speaking for a Bench consisting of His
Lordship and S.B. Majmudar, J. held : (SCC p.520,para 29)
"29. It is thus well-settled law that when there is
inordinate delay in filing the writ petition and when all
steps taken in the acquisition proceedings have become
final, the Court should be loath to quash the
notifications. The High Court has, no doubt,
discretionary powers under Article 226 of the
Constitution to quash the notification under Section 4 (1)
and declaration under Section 6. But it should be
exercised taking all relevant factors into pragmatic
consideration. When the award was passed and
possession was taken, the Court should not have
exercised its power to quash the award which is a
material factor to be taken into consideration before
exercising the power under Article 226. The fact that no
third party rights were created in the case is hardly a
ground for interference. The Division Bench of the High
Court was not right in interfering with the discretion
exercised by the learned Single Judge dismissing the writ
petition on the ground of laches."
In the concurring judgment, S.B. Majmudar, J.
held as under:(Industrial Development Investment case
(1996) 11 SCC 501 SCC pp 522-23, para 35)
"35..... Such a belated writ petition, therefore, was rightly
rejected by the learned Single Judge on the ground of
gross delay and laches. The respondent-writ petitioners
can be said to have waived their objections to the
acquisition on the ground of extinction of public purpose
by their own inaction, lethargy and indolent conduct. The
Division Bench of the High Court had taken the view that
41
because of their inaction no vested rights of third parties
are created. That finding is obviously incorrect for the
simple reason that because of the indolent conduct of the
writ petitioners land got acquired, award was passed,
compensation was handed over to various claimants
including the landlord. Reference applications came to be
filed for larger compensation by claimants including writ
petitioners themselves. The acquired land got vested in
the State Government and the Municipal Corporation
free from all encumbrances as enjoined by Section 16 of
the Land Acquisition Act. Thus right to get more
compensation got vested in diverse claimants by passing
of the award, as well as vested right was created in
favour of the Bombay Municipal Corporation by virtue of
the vesting of the land in the State Government for being
handed over to the Corporation. All these events could
not be wished away by observing that no third party
rights were created by them. The writ petition came to be
filed after all these events had taken place. Such a writ
petition was clearly stillborn due to gross delay and
laches."
17. Similarly, in State of Rajasthan v. D.R. Laxmi, (1996) 6
SCC 445 following the decision of this Court in Municipal
Corporation of Greater Bombay (1996) 11 SCC 501 it was held
: (D.R. Laxmi case, (1996) 6 SCC 445 SCC p 452, para 9)
"9.... When the award was passed and possession was
taken, the Court should not have exercised its power to
quash the award which is a material factor to be taken
into consideration before exercising the power under
Article 226. The fact that no third party rights were
created in the case, is hardly a ground for interference.
The Division Bench of the High Court was not right in
interfering with the discretion exercised by the learned
Single Judge dismissing the writ petition on the ground of
laches."
18. To the similar effect is the judgment of this Court in
Municipal Council, Ahmednagar v. Shah Hyder Beig (2000) 2
SCC 48 wherein this Court, following the decision of this
Court in C.Padma v. Dy. Secy. To the Govt of T.N. (1997) 2
42
SCC 627 held : (Shah Hyder case (2000) 2 SCC 48, SCC
p.55,para 17)
"17.In any event, after the award is passed no writ
petition can be filed challenging the acquisition notice or
against any proceeding thereunder. This has been the
consistent view taken by this Court and in one of the
recent cases (C.Padma v. Dy. Secy. To the Govt of T.N.
(1997) 2 SCC 627) ...."
43.In Banda Development Authority Vs. Motilal Agarwal (2011)
5 SCC 394 this Court held in paras 17, 18, 19, 20, 21, 22, 23,24 and
25 that:
“17.It is true that no limitation has been prescribed for
filing a petition under Article 226 of the Constitution but one of
the several rules of self imposed restraint evolved by the
superior courts is that the High Court will not entertain
petitions filed after long lapse of time because that may
adversely affect the settled/crystallized rights of the parties. If
the writ petition is filed beyond the period of limitation
prescribed for filing a civil suit for similar cause, the High
Court will treat the delay unreasonable and decline to entertain
the grievance of the petitioner on merits.
18. In State of Madhya Pradesh v. Bhailal Bhai, AIR 1964 SC
1006, the Constitution Bench considered the effect of delay in
filing writ petition under Article 226 of the Constitution and
held: (AIR pp 1011-12 paras 17 and 21)
"17....It has been made clear more than once
that the power to give relief under Article 226 is a
discretionary power. This is specially true in the
case of power to issue writs in the nature of
mandamus. Among the several matters which the
High Courts rightly take into consideration in the
exercise of that discretion is the delay made by
the aggrieved party in seeking this special remedy
and what excuse there is for it......It is not easy nor
is it desirable to lay down any rule for universal
application. It may however be stated as a general
rule that if there has been unreasonable delay the
43
court ought not ordinarily to lend its aid to a
party by this extraordinary remedy of mandamus.
21…..Learned counsel is right in his submission
that the provisions of the Limitation Act do not as
such apply to the granting of relief under Article
226. It appears to us however that the maximum
period fixed by the legislature as the time within
which the relief by a suit in a Civil Court must be
brought may ordinarily be taken to be a reasonable
standard by which delay in seeking remedy under
Article 226 can be measured. This Court may
consider the delay unreasonable even if it is less
than the period of limitation prescribed for a civil
action for the remedy but where the delay is more
than this period, it will almost always be proper for
the court to hold that it is unreasonable."
19. In matters involving challenge to the acquisition of land for
public purpose, this Court has consistently held that delay in
filing the writ petition should be viewed seriously and relief
denied to the petitioner if he fails to offer plausible explanation
for the delay. The Court has also held that the delay of even few
years would be fatal to the cause of the petitioner, if the
acquired land has been partly or wholly utilised for the public
purpose.
20.In Ajodhya Bhagat v. State of Bihar (1974) 2 SCC 501,
this Court approved dismissal by the High Court of the writ
petition filed by the appellant for quashing the acquisition of
his land and observed: (SCC p.506,para 23)
"23. The High Court held that the appellants were
guilty of delay and laches. The High Court relied on
two important facts. First, that there was delivery of
possession. The appellants alleged that it was a
paper transaction. The High Court rightly rejected
that contention. Secondly, the High Court said that
the Trust invested several lakhs of rupees for the
construction of roads and material for development
purposes. The appellants were in full knowledge of
the same. The appellants did not take any steps. The
High Court rightly said that to allow this type of
44
challenge to an acquisition of large block of land
piecemeal by the owners of some of the plots in
succession would not be proper. If this type of
challenge is encouraged the various owners of small
plots will come up with writ petitions and hold up
the acquisition proceedings for more than a
generation. The High Court rightly exercised
discretion against the appellants. We do not see any
reason to take a contrary view to the discretion
exercised by the High Court."
21. In State of Rajasthan v. D.R.Laxmi (1996) 6 SCC 445, this
Court referred to Administrative Law H.W.R. Wade (7th Ed.) at
pages 342-43 and observed: (SCC p.453, para 10)
"10. The order or action, if ultra vires the power,
becomes void and it does not confer any right. But
the action need not necessarily be set at naught in
all events. Though the order may be void, if the
party does not approach the Court within
reasonable time, which is always a question of fact
and have the order invalidated or acquiesced or
waived, the discretion of the Court has to be
exercised in a reasonable manner. When the
discretion has been conferred on the Court, the
Court may in appropriate case decline to grant the
relief, even if it holds that the order was void. The
net result is that extraordinary jurisdiction of the
Court may not be exercised in such circumstances."
22. In Girdharan Prasad Missir v. State of Bihar (1980) 2
SCC 83, the delay of 17 months was considered as a good
ground for declining relief to the petitioner.
In Municipal Corpn. of Greater Bombay v. Industrial
Development Investment Co. (P) Ltd. (1996) 11 SCC 501, this
Court held: (SCC p 452, para 9)
"9. ….It is thus well-settled law that when there is
inordinate delay in filing the writ petition and when
all steps taken in the acquisition proceedings have
become final, the Court should be loath to quash the
notifications. The High Court has, no doubt,
discretionary powers under Article 226 of the
45
Constitution to quash the notification under Section
4 (1) and declaration under Section 6. But it should
be exercised taking all relevant factors into
pragmatic consideration. When the award was
passed and possession was taken, the Court should
not have exercised its power to quash the award
which is a material factor to be taken into
consideration before exercising the power under
Articloe 226. The fact that no third party rights were
created in the case is hardly a ground for
interference. The Division Bench of the High Court
was not right in interfering with the discretion
exercised by the learned Single Judge dismissing the
writ petition on the ground of laches."
23. In Urban Improvement Trust v. Bheru Lal (2002) 7 SCC
712, this Court reversed the order of the Rajasthan High Court
and held that the writ petition filed for quashing of acquisition
of land for a residential scheme framed by the appellant-Urban
Improvement Trust was liable to be dismissed on the ground
that the same was filed after two years.
24. In Ganpatibai v. State of M.P. (2006) 7 SCC 508, the delay
of 5 years was considered unreasonable and the order passed
by the High Court refusing to entertain the writ petition was
confirmed. In that case also the petitioner had initially filed suit
challenging the acquisition of land. The suit was dismissed in
2001. Thereafter, the writ petition was filed. This Court referred
to an earlier judgment in State of Bihar v. Dhirendra Kumar
(1995) 4 SCC 229 and observed: ( Ganpatibai v. State of M.P.
(2006) 7 SCC 508, SCC p.510, para 9)
"9. In State of Bihar v. Dhirendra Kumar (1995) 4 SCC
229 this Court had observed that civil suit was not
maintainable and the remedy to question notification
under Section 4 and the declaration under Section 6 of
the Act was by filing a writ petition. Even thereafter the
appellant, as noted above, pursued the suit in the civil
court. The stand that five years after the filing of the suit,
the decision was rendered does not in any way help the
appellant. Even after the decision of this Court, the
appellant continued to prosecute the suit till 2001, when
46
the decision of this Court in 1995 had held that suit was
not maintainable."
25.In Swaran Lata v. State of Haryana (2010) 4 SCC 532,
the dismissal of writ petition filed after seven years of the
publication of declaration and five years of the award passed
by the Collector was upheld by the Court and it was observed:
(SCC p.535 para 11)
"11. In the instant case, it is not the case of the
petitioners that they had not been aware of the
acquisition proceedings as the only ground taken in
the writ petition has been that substance of the
notification under Section 4 and declaration under
Section 6 of the 1894 Act had been published in the
newspapers having no wide circulation. Even if the
submission made by the petitioners is accepted, it
cannot be presumed that they could not be aware of
the acquisition proceedings for the reason that a
very huge chunk of land belonging to a large
number of tenure-holders had been notified for
acquisition. Therefore, it should have been the talk
of the town. Thus, it cannot be presumed that the
petitioners could not have knowledge of the
acquisition proceedings."
44.From the above mentioned judgments, it is clear that there is a
consistent view that in case there is an inordinate delay in approaching
the Court and when all steps taken in the acquisition proceedings have
become final, the Court should be loath to quash the proceedings.
45.In the present case, the notifications are of the year 1991,
whereas the writ petitions were filed in the year 2011 and 2012, after a
period of more than 20 years. Averments of the writ petitions are silent
on the issue of any explanation of gross delay in approaching this
Court.
46. Admittedly, the possession of the land was taken way back in
the year 1993. The special land Acquisition Officer had made award
47
in the year 1993 and 1995 and as such entire proceedings of
acquisition was completed wayback in the year 1995.
47. In view of above discussions, we dismiss the Writ Petition
Nos.52602 of 2011, 59955 of 2012, 59958 of 2012, 59962 of 2012
and 59964 of 2012 on the ground of gross delay and laches.
48. So far as the prayers made in the Writ Petition Nos.47504 of
2017, 50821 of 2017, 50824 of 2017, 51857 of 2017 and 57562 of
2017 are concerned, as the matter is seized with the Hon’ble Supreme
Court and there is a request to High Court for not to deal with such
cases relating to the interpretation of or concerning Section 24 of Act
of 2013. (State of Haryana Vs. M/s. G.D. Goenka Tourism
Corporation Ltd: (2018) 3 SCC 585). Accordingly, we are not
passing any order on these petitions at this stage.
49.Registrar General of this Court is directed to take appropriate
steps to comply with the directions made in paragraph 32 of this
judgment regarding direction to Central Bureau of Investigation to
conduct preliminary enquiry and register First Information Report.
50.List leading Writ Petition i.e. 31586 of 2016 on 11.5.2020.
Order Date :- 10.2.2020
SB
(Saurabh Shyam Shamshery,J) (Sudhir Agarwal,J.)
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