# Ajay Kumar & Anr v. U.O.I. & Ors

- **Citation:** (2022) 9 ILRA 339
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-11
- **Case number:** Writ C No. 43422 of 2018
- **Bench:** Pritinker Diwaker, Ashutosh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajay-kumar-anr-v-u-o-i-ors-49021
- **Pages:** 11

## Headnote

A. Land Law - UP Revenue Code, 2006 -
Section 67-A - UP Revenue Code Rules,
2016 - Ss. 64 and 68 - Settlement of
Abadi site land - Maximum area required
to be settled is 200 Square meter -
Violation - Effect - Held, an area upto 200
square meters of land with structure
thereon
could
be
settled
with
the
petitioners under Section 67-A of the
Revenue Code, 2006 and not the entire
area of 0.0580 hectares (580 square
metes) - No right can be said to have
accrued to the petitioners in respect of
Plot No. 139M and 140M in excess of 200
square meters. (Para 19)
B. Doctrine of President - Exception - Per
incuriam - Earlier Writ order was passed
in ignorance of the provisions - Order falls
under the spectrum of per incuriam was
not followed. (Para 19)
C. Acquisition Law - Railways Act, 1989 -
Sections 20-A, 20-E & 20-F (2) - Lapse of
proceeding
-
Acquisition
for
special
railway project - Plot, in question was
included in the Notification u/s Section
20-A, not u/s 20-E of the Act - Effect -
Held, it can safely be concluded that the
340 INDIAN LAW REPORTS ALLAHABAD SERIES
Plot, in question has not been acquired for
the Special Railway Project. If the plot has
not been acquired, there is no question of
the
acquisition
proceedings
to
have
lapsed. (Para 23)
Writ petition dismissed. (E-1)

## Text

9 All. Ajay Kumar & Anr. Vs. U.O.I. & Ors.
339
the case of Gaurav Kumar Bansal v.
Union of India and others. We find that
deaths having taken place in the hospitals
on account of Covid-19 fully stand the test
of certification. The argument that the
medical reports mentioning cardiac failure
or otherwise may not be attributed to
Covid-19 does not impress the Court for
the reason that Covid-19 is an infection that
may result to the mortality of a person
affecting any organ be it lungs or heart etc.
Once the admission of deceased persons
was on account of Covid-19, the resulting
cause being heart failure or dysfunction of
any other organ leading to death is
immaterial and would nevertheless be
treated as Covid-19 death. No other
argument
was
advanced
for
our
consideration, therefore, having given our
anxious consideration, we allow the claims
in
terms
of our observations
made
hereinabove.

27. As a result, all the writ petitions
except Writ-C No. 3276 of 2022 (Smt.
Khushboo v. State of U.P. and others) are
allowed and the opposite parties are
directed to release the ex-gratia payment to
the dependents entitled thereto within a
period of one month failing which the
claims so allowed shall be made good
inclusive of simple interest @ 9% p.m.
from the date of judgement upto the date of
actual payment.

The Writ-C No. 3276 of 2022
(Smt. Khushboo v. State of U.P. and others)
is accordingly dismissed.

28. Each of the petitioners, whose
claims are allowed shall be entitled to a
cost of Rs. 25000/- in each case.
----------
(2022) 9 ILRA 339
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.08.2022

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Writ C No. 43422 of 2018

Ajay Kumar & Anr. ...Petitioners
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Subhash Chandra Yadav

Counsel for the Respondents:
C.S.C., Ms. Akansha Sharma, Sri Pranjal
Mehrotra, Sri Rajnish Kumar Rai, Sri Manish
Goyal (A.A.G.)

A. Land Law - UP Revenue Code, 2006 -
Section 67-A - UP Revenue Code Rules,
2016 - Ss. 64 and 68 - Settlement of
Abadi site land - Maximum area required
to be settled is 200 Square meter -
Violation - Effect - Held, an area upto 200
square meters of land with structure
thereon
could
be
settled
with
the
petitioners under Section 67-A of the
Revenue Code, 2006 and not the entire
area of 0.0580 hectares (580 square
metes) - No right can be said to have
accrued to the petitioners in respect of
Plot No. 139M and 140M in excess of 200
square meters. (Para 19)
B. Doctrine of President - Exception - Per
incuriam - Earlier Writ order was passed
in ignorance of the provisions - Order falls
under the spectrum of per incuriam was
not followed. (Para 19)
C. Acquisition Law - Railways Act, 1989 -
Sections 20-A, 20-E & 20-F (2) - Lapse of
proceeding
-
Acquisition
for
special
railway project - Plot, in question was
included in the Notification u/s Section
20-A, not u/s 20-E of the Act - Effect -
Held, it can safely be concluded that the
340 INDIAN LAW REPORTS ALLAHABAD SERIES
Plot, in question has not been acquired for
the Special Railway Project. If the plot has
not been acquired, there is no question of
the
acquisition
proceedings
to
have
lapsed. (Para 23)
Writ petition dismissed. (E-1)

(Delivered by Hon'ble Pritinker Diwaker, J.
&
Hon'ble Ashutosh Srivastava, J.)

1. The writ petitioners who claim to
have right, title and interest in Arazi / Plot
No. 139M having area 0.0140 hectare,
situate in Village Pirallipur, Pargana
Haveli, Post Chunar, District Mirzapur,
have
approached
this
Court
seeking
issuance
of
a
writ
of
mandamus
commanding the respondents not to create
any
interference
in
their
peaceful
possession over the said arazi/plot on the
ground that the entire proceedings of the
acquisition of the plot for special railway
project stands lapsed under Section 20-F
(2) of the Railways Act, 1989. The
petitioners have further prayed that no
coercive action be taken against the
petitioners during the pendency of the writ
petition.

2. The facts giving rise to the
controversy involved in the writ petition,
briefly stated, as borne out from the record,
are that one Chhavinath, father of petitioner
No. 1 and husband of petitioner No. 2, was
residing
in
a
double
storied
house
constructed over arazi/plot No. 139 and 140
since the time of his ancestors. The Plot
No. 139 and 140 were recorded as "Banjar"
under category 5-3 (3) in the revenue
records with area 0.1390 hectares and
0.3790 hectares, respectively. It may be
stated here that an area of 0.0560 hectares
of plot No. 140 was settled in favour of
residents of village under Section 123 (1)
UPZA&LR Act vide order dated 6.10.1993.
Proceedings under Section 122-B of the
U.P.Z.A.&.L.R.
Act
for
eviction
of
Chhavinath were drawn by the Land
Management Committee/Gaon Sabha of
the village concerned which resulted in an
exparte order dated 22.5.2008, being
passed against Chhavinath. A restoration
application was filed by Chhavinath stating
his inability to appear in the proceedings
whereafter the proceedings were restored
after recalling the order dated 22.5.2008.
On the restoration of the proceedings and
after hearing Chhavinath, the report under
Section 122-B U.P.Z.A.&.L.R. Act was
rejected
and
the
Notice
49-A
was
withdrawn by order dated 6.10.2008 passed
by the Tehsildar, Chunar with further
direction requiring the Revenue Inspector
to proceed under Section 123 (1) of
U.P.Z.A.&.L.R.
Act.
It
appears
that
necessary order under Section 123 (1) of
U.P.Z.A.&.L.R. Act were not passed and
meanwhile, the said Chhavinath expired.
An area of 0.1250 hectares of plot No. 139
was resumed by Commissioner, Vidhyachal
Division, Mirzapur for the Dedicated
Freight
Corridor
vide
order
dated
20.5.2012. After resumption of an area of
0.1250 hectares an area of 0.0140 hectares
remained. Thereafter, the petitioners who
are the heirs of the deceased Chhavinath
moved the Assistant Collector under
Section 67-A of the U.P. Revenue Code,
2006 praying that the house site be settled
in their favour. The Assistant Collector vide
order
dated
16.6.2016
required
the
Tehsildar, Chunar to do the needful in
accordance with law and submit report.
Thereafter the abadi site in respect of
arazi/Plot No. 139M, area 0.0140 hectare
and arazi/plot No. 140 M, area 0.125
hectare were settled in favour of the
petitioners under Section 67-A of the
9 All. Ajay Kumar & Anr. Vs. U.O.I. & Ors.
341
Revenue Code, 2006 vide order dated
30.8.2016. The names of the petitioners
stand recorded over the Plot No. 139 M
area 0.0140 hectares in the relevant revenue
records. It is relevant to mention here that
Chhavinath was survived by his wife
Kamla Devi (petitioner No. 2) and sons
Ajay Kumar (petitioner No. 1) Vijay
Shanker, Subhash Chandra, Sanjay Kumar,
Ishwar Chand.

3. On 24.6.2016, a Notification under
Section 20-A of the Railways Act, 1989
was issued by the Central Government
wherein it was provided that certain lands
in the district Mirzapur of the State of U.P.
are required for the purpose of Special
Railway Project i.e. Eastern Dedicated
Freight Corridor and declared intention to
acquire the plots including the Plot No.
139-M area 0.0140 hectare settled in favour
of the petitioners. Thereafter a declaration
under Section 20-E of the Railways Act,
1989 was published on 12.1.2017. The plot
No. 139M area 0.0140, however, did not
find place in the declaration of acquisition
under Section 20-E of the Railways Act,
1989. An award in respect of the
acquisition was also made on 18.4.2017
and the Plot No. 139 M area 0.0140 did not
find mention in the award.

4. It is also relevant to record here
that three members of the family of
Chhavinath i.e. the petitioners herein and
one Ishwar Chand have been granted
benefit of Section 67-A of the U.P. Revenue
Code, 2006 and a total area of 0.0580
hectares comprised in plot No. 139-M to
the extent of 0.0140 hectares and plot No.
140M to the extent of 0.0440 hectares have
been settled in their favour under Section
67-A of the Revenue Code, 2006.

5. On the basis of the above admitted
facts, the petitioners submit that although
initially vide Notification dated 24.6.2016
under Section 20-A of the Railways Act,
1989 the Central Government had declared
its intention to acquire the arazi/plot No.
139M,
area
0.0140
hectare,
but
subsequently
vide
Notification
dated
12.1.2017, under Section 20-E, the Central
Government
declared
that
the
land
excluding Arazi/Plot No. 139M, area
0.0140 hectare be acquired. Further, since
no award has been made in respect of the
Arazi/Plot No. 139M, area, 0.0140 hectare
within one year from the date of
publication of the declaration under Section
20-E, the entire proceedings for the
acquisition in respect of the Arazi/Plot No.
139M, area 0.0140 hectare shall be deemed
to
have
lapsed
and
the
respondent
authorities have no authority to interfere in
the peaceful possession and beneficial
enjoyment of the petitioners over their
house constructed over Plot No. 139M,
area 0.0140 hectares.

6. The petitioners by way of a
supplementary affidavit have brought on
record the fact that by order dated
23.2.2021, the Assistant Collector had
expunged the name of the petitioners from
the revenue records and restored that of the
Gaon Sabha, however, the petitioners
assailed the order dated 23.2.2021 before
this Court in Writ-C No. 17755 of 2021
(Ajay Kumar versus State of U.P. and 4
others) and Writ-C No. 10279 of 2021
(Kamla Devi versus State of U.P. and 4
others) and this Court by orders dated
4.8.2021 and 16.8.2021, respectively, have
allowed the writ petitions.

7. This Court vide order dated
3.1.2019
while
entertaining
the
writ
petition invited counter affidavit from the
respondents and at the same time directed
parties to maintain status quo as on that day
342 INDIAN LAW REPORTS ALLAHABAD SERIES
in respect of possession over the disputed
land until further orders.

8. A counter affidavit has been filed
on behalf of the respondent Nos. 1 and 7
wherein it has been stated that plot No. 139
area 0.1390 hectares has been recorded as
Banzar and notified under category 5-3 (3)
and as such, vested in the gram sabha/state.
In such view of the matter, no proceedings
for its acquisition were required to be
initiated and the plot was resumed by the
Commissioner,
Vindhyachal
Division,
Mirzapur vide order dated 26.4.2017 to the
extent of an area of 0.0140 hectares out of
an area of 0.1390 hectares and to the extent
of an area of 0.3230 of plot No. 140 for the
purposes of Dedicated Freight Corridor of
the Railways. After the resumption of the
Plot No. 139M to the extent of an area of
0.0140 hectare and acquisition of an area of
0.0440 hectares of plot No. 140M, the
compensation in respect of the dwelling
house
of
the
petitioners
has
been
determined
under
the
National
Rehabilitation and Settlement Policy, 2007
for the affected families by the competent
authority and a sum of Rs.33,42,507/- has
been determined in respect of arazi/plot No.
139 and 140. However, the petitioners have
not collected their share.

9. A counter affidavit on behalf of
respondent Nos. 3, 4, 5 and 6 has been filed
by learned Additional Chief Standing
Counsel wherein identical grounds as taken
by the respondent Nos. 1 & 7 has been
taken to resist the writ petition.

10. In the rejoinder affidavit the
petitioners in response to the counter
affidavit of respondent nos. 1 and 7 have
reiterated their stand that the acquisition
proceedings in respect of Arazi/Plot No.
139M stands lapsed as admittedly no award
has been made in respect of the said plot
within the time provided under Section 20F (2) of the Railways Act, 1989. The
petitioners have right and title over the land
in question. Once the land was notified
under Section 20-A of the Railways Act it
became mandatory to decide the objections
under Section 20-D and make notification
under Section 20-E for declaration. In
response to the counter affidavit filed on
behalf of respondent Nos. 3, 4, 5 & 6, the
petitioners submit that the resumption order
dated 26.4.2017 is void as also barred by
Rule 68 (2) (f) of the U.P. Revenue Code
Rules, 2016.

11. It has been argued by the learned
counsel for the respondent Nos. 1 & 7 that
the Government of India, Ministry of
Railways issued Notification under Section
2 (37-A) of the Railways Act, 1989 inter
alia declaring Eastern Dedicated Freight
Corridor and Western Dedicated Freight
Corridor as a Special Project for railways
covering 9 States including the State of
U.P.
The
Eastern
Dedicated
Freight
Corridor with a route length of 1873 Km.,
links Ludhiana in Punjab and Darkauni in
West Bengal. The Western Dedicated
Frieght Corridor covers a distance of 1504
Km., double line electric (2 X 25 Kv) track
from Mumbai to Dadri and thus, the
Freight Corridor is a project of National
Importance and would be the lifeline to the
economy of the country and would provide
infrastructure to reduce the time period
substantially in transporting goods as well
as consumption of fuel involved in
transportation of the goods in comparison
of road transport. The total estimated cost
of DFCC Project from Pt. Deen Dayal
Upadhyaya
Junction
(Mughalsarai)
to
Prayagraj Junction is more than 3000
crores which has increased by a significant
amount owing to delays in land acquisition
9 All. Ajay Kumar & Anr. Vs. U.O.I. & Ors.
343
and
cost
overruns.
The
date
of
commissioning the project is being shifting
from time to time. The house of the
petitioners is built upon plot No. 139M and
140 jointly. Compensation for the same has
already been determined under National
Rehabilitation Policy, but petitioners have
not collected the same. The house of the
petitioners situate at Km. 155+30 in village
Pirallipur, Tehsil Chunar, District Mirzapur
is an obstruction in completion of the
project and account of this only partial
width of formation was available and
mechanized track linking work along with
electrical and signal works is not possible
beyond the above location at Km. 155+30.
Entire work in 181 Kms., section have
almost been completed except this 50
meters patch of land which is pending due
to the interim order in operation. It is, thus
submitted that higher public purpose must
give way to individual rights.

12. In the above backdrop, this Court
is required to adjudicate the controversy
and determine as to whether the claim of
the writ petitioners is justified. From the
pleadings of the parties, the following
issues arise for consideration in the writ
petition:-

i. Whether the writ petitioners
have right, title and interest in plot Nos.
139 M, area 0.0140 hectare as claimed by
them and if so, what is the nature of such
right?

ii. Whether the proceedings in
respect of the acquisition of Plot No. 139M,
area 0.0140 hectare included in the
Notification dated 24.6.2016, under Section
20-A of the Railways Act, 1989, but not
included in Notification/Declaration dated
12.1.2017 under Section 20-E and non
declaration of award in respect thereof will
result in proceedings having lapsed under
Section 20-F (2) of the Railways Act, 1989
as claimed by the petitioners?

iii.
Whether
the
resumption
proceedings of the Plot No. 139M area
0.0140 hectare under Section 59 of the U.P.
Revenue
Code,
2006,
by
the
Commissioner,
Vindhyachal
Division,
Mirzapur by order dated 26.4.2017 is in
accordance with law in the wake of the
plot/land having settled in favour of the
petitioners under Section 67-A of the U.P.
Revenue Code, 2006?

iv. Whether higher public purpose
will have preference over individual rights
as
argued
by
learned
counsel
for
respondents?

13. Before we proceed to decide the
aforesaid
issues
which
arise
for
consideration in this writ petition, it would
be apt to consider certain provisions of the
U.P. Revenue Code, 2006. The petitioners
claim their right over the Plot No. 139M,
area 0.0140 hectare by virtue of Section 67A of the U.P. Revenue Code, 2006. Section
67-A is being reproduced hereunder:

"Section 67-A. Certain house
sites to be settled with existing owners
thereof -

(1) If any person referred to in
sub-section (1) of Section 64 has built a
house on any land referred to in Section 63
of this Code, not being land reserved for
any public purpose, and such house exists
on the November 29, 2012, the site of such
house shall be held by the owner of the
house on such terms and conditions as may
be prescribed.

(2) Where any person referred to
in sub-section (1) of Section 64, has built a
house on any land held by a tenure holder
(not being a government lessee) and such
house exists on November 29, 2000, the site
of such house, notwithstanding anything
344 INDIAN LAW REPORTS ALLAHABAD SERIES
contained in this Code, be deemed to be
settled with the owner of such house by the
tenure holder on such terms and conditions
as may be prescribed.

Explanation.- For the purpose of
sub-section (2), a house existing on
November 29, 2000, on any land held by a
tenure holder, shall, unless the contrary is
proved, be presumed to have been built by
the occupant thereof and where the
occupants are members of one family by the
head of that family.]"

14. Section 67-A (1) provides that if
any agricultural labourer or village artisan
belonging to scheduled caste, scheduled
tribes or other backward class or a person
of general category living below poverty
line, has built a house on any land which
may be allotted for abadi sites under
Section 63, not being a land reserved for
any public purpose and such house exists
on 29th November, 2012, the site of such
house shall be held by the owner of the
house. That is to say it shall be settled with
the owner of such house on such terms and
conditions as may be prescribed.

15. Section 67-A (2) on the other hand
provides that where any person belonging
to the category given as above has built a
house on any land held by a tenure holder
and such house exists on 29th November,
2000, it be deemed to be settled with the
owner of such house by the tenure holder.

16. In the case at hand, we are
concerned with Section 67-A (1) only and
Section 67-A (2) is not attracted as the
petitioners have not built their house on
any land held by a tenure holder. Now,
the terms and conditions prescribed for
regularization of certain house sites with
their existing owners is referable to Rule
68 of the U.P. Revenue Code Rules, 2016
which is reproduced hereunder:

"68. Settlement of house sites
with existing owners thereof (Section 67
A) -

(1) Where any person referred
to in sub-section (1) of section 64 has
built a house on any land referred to in
section 63 of the Code, not being land
reserved for any public purpose and such
house exists on twenty-ninth day of
November 2012, the site of such house
shall be held by the owner of the house
on terms and conditions prescribed in
rule 64.

Note:- For the removal of
doubt it is hereby declared that the
maximum area of the site settled under
section 67-A (1) of the Code or the rules
framed there under shall not exceed two
hundred square meters.

(2) Where any person referred
to in sub-section (1) of section 64 has
built a house on any land held by a tenure
holder (not being a government lessee)
and such house exists on twenty-ninth day
of November 2000, the site of such house
shall be deemed to be held by the owner
of the house on the following terms and
conditions -

(a) the maximum area of the site
settled under section 67-A (2) of the Code
or the rules framed thereunder shall not
exceed two hundred square meters.

(b) the owner of the house as
well as his heirs shall have a heritable
interest in the site and shall also have
unrestricted right to use the trees and
wells existing on the site subject to
existing rights of easements.

(c) he shall have a right to use the
site for construction of a residential house,
subject to existing rights of easement.
9 All. Ajay Kumar & Anr. Vs. U.O.I. & Ors.
345

(d) the owner of the house shall
not be liable to pay to the tenure holder or
the State Government any future rent in
respect of the site.

(e) the succession over the site
shall be governed by personal law which
the house owner was subject to.

(f) the owner of the house and his
heirs shall not be liable to ejectment on any
ground whatsoever.

(g) if the building is abandoned
or if the owner thereof dies without any
heir entitled to succeed, the land or site
shall escheat to the State.

(h) the tenure holder shall be
allowed remission of the proportionate land
revenue for the portion of his holding
settled under this rule with house owners.
The land shall also be classified as abadi in
the Khatauni maintained under the Code."

17. A perusal of the Rule 68 shows
that the terms and conditions for settlement
have been provided in Rule 64 of the 2016
Rules. The Rule 64 of the 2016 Rules is
being quoted hereunder:

"64. Maximum area and other
conditions of allotment (Sections 63 and
64) -

(1) The maximum area of
allotment under rule 61 or 62 shall not
exceed 200 square meters.

(2) The allottee of an abadi site
shall not be liable to pay any premium or
ground rent, but he shall hold such abadi
site on the following terms and conditions:-

(a) The allottee shall build a
house and shall begin to reside in it or use
it for the purpose for which the site was
allotted within a period of three years from
the date of delivery of possession of the site
allotted.

(b) If the allottee fails to comply
with the terms and conditions incorporated in
clause (a) of sub-rule (2) of this rule, the
Collector may cancel the allotment in
accordance with section 66:

Provided that in the case of the
persons belonging to Scheduled Caste or
Scheduled Tribe the aforesaid time limit for
building of the house shall not apply.

(c) The allottee or his heirs shall
not be entitled to transfer the site or the house
built thereon by sale within a period of five
years from the date of allotment. If the site or
house is transferred after the expiry of five
years from the date of allotment, the allottee
shall not be eligible for re-allotment.

(d)
The
allottee
shall
have
heritable interest in the land so allotted.

(e) The succession to the land shall
be governed by the personal law of the
allottee.

(f) Subject to the provisions of
section 66, the allottee or his heirs shall not
be liable to be ejected from the land allotted
or from the house built thereon.

(g) If the land or the house built
thereon is abandoned or if the allottee or his
heirs die without any heir, the property shall
re-vest in the Gram Panchayat."

18. The settlement of the abadi site is
subject to the provisions of Section 66 of the
U.P. Revenue Code whereunder the Collector
has been empowered to hold an inquiry suo
moto or on the application of any person
aggrieved by allotment of land and cancel the
allotment after recording satisfaction that the
allotment is irregular and in that event the
right, title and interest of the allottee and
every other person claiming through him in
the land allotted shall cease. However, no
application in this regard shall be entertained
after the expiration of a period of three years
from the date of allotment.

19. In the case at hand, we find that
plot No. 139M area 0.0140 hectares (140
346 INDIAN LAW REPORTS ALLAHABAD SERIES
square meters) along with an area of 0.0440
hectares (440 square meters) of Plot No.
140M, i.e. a total area of 0.0580 (580
square meters) of land contained in Plot
No. 139M and 140M have been settled
with the petitioners and other heirs of
Chavvinath. The Rule 68 of the U.P.
Revenue Code Rules, 2016 governing the
settlement of the house sites under Section
67-A of the Revenue Code, 2006 clearly
provides that the maximum land that could
have settled with an owner of house is 200
square meters. Here the heirs of Chhavinath
have to be taken as one unit and thus could
not be entitled to settlement of an area in
excess of 200 square meters under Section
67-A of the Revenue Code vide order dated
30.8.2016. The said order was recalled by
the Assistant Collector vide order dated
23.2.2021 and the name of the petitioners
were expunged from the revenue records
and the entry of Gaon Sabha was restored.
However, this Court in Writ-C No. 17755
of 2021 (Ajay Kumar versus State of U.P.
and 4 others) and Writ-C No. 10279 of
2021 (Kamla Devi versus State of U.P. and
4 others) set aside the order dated
23.2.2021 and allowed the writ petitions
vide orders dated 4.8.2021 and 16.8.2021.
The orders dated 4.8.2021 and 16.8.2021
have been passed in complete ignorance of
the fact that under law land in excess of
200 square meters could not be settled in
favour of an allottee or otherwise under the
provisions of Section 67-A of the Revenue
Code, 2006. The house of the petitioners is
admittedly built over Plot No. 140M and
139M, with major portion lying on Plot No.
140M. In the opinion of the Court, an area
upto 200 square meters of land with
structure thereon could be settled with the
petitioners under Section 67-A of the
Revenue Code, 2006 and not the entire area
of 0.0580 hectares (580 square metes)
comprised in Plot No. 140M and 139M. No
right can be said to have accrued to the
petitioners in respect of Plot No. 139M and
140M in excess of 200 square meters.
Thus, in our view, the plot No. 139M area
0.0140 hectares (140 square meters) does
not stand settled with the petitioners along
with the house constructed over it under
Section 67-A of the U.P. Revenue Code.
The petitioners are not the owners of the
house as also the site under Section 67-A of
the U.P. Revenue Code, 2006. The first
issue thus stands answered against the
petitioners.

20. Now, coming to the second issue
as
to
whether
the
proceedings
of
acquisition of Plot No. 139M area 0.0140
hectares included in the Notification dated
24.6.2016, under Section 20-A of the
Railways Act, 1989 but not included in the
Notification/Declaration under Section 20E and non declaration of award in respect
thereof will result in the proceeding having
lapsed under Section 20-F (2) of the Act, it
would be apt to refer to the respective
provisions under the Railways Act, 1989.
Chapter IV-A of the Railways Act, 1989
deals with the land acquisition for Special
Railway Project. Section 20-A relates to the
power to acquire land etc., and reads as
under:

"20A. Power to acquire land,
etc.-- (1) Where the Central Government is
satisfied that for a public purpose any land
is required for execution of a special
railway project, it may, by notification,
declare its intention to acquire such land.
(2) Every notification under sub-section
(1), shall give a brief description of the
land and of the special railway project for
which the land is intended to be acquired.

(3) The State Government or the
Union territory, as the case may be, shall
for the purposes of this section, provide the
9 All. Ajay Kumar & Anr. Vs. U.O.I. & Ors.
347
details of the land records to the competent
authority, whenever required.

(4) The competent authority shall
cause the substance of the notification to be
published in two local newspapers, one of
which shall be in a vernacular language."

21. Section 20-E of the Act deals with
declaration of acquisition and reads as
under:-

20E. Declaration of acquisition.--
(1) Where no objection under sub-section (1)
of section 20D has been made to the
competent authority within the period
specified therein or where the competent
authority has disallowed the objections under
sub-section (2) of that section, the competent
authority shall, as soon as may be, submit a
report
accordingly
to
the
Central
Government and on receipt of such report,
the Central Government shall declare, by
notification, that the land should be acquired
for the purpose mentioned in sub-section (1)
of section 20A.

(2) On the publication of the
declaration under sub-section (1), the land
shall
vest
absolutely
in
the
Central
Government free from all encumbrances.

(3) Where in respect of any land, a
notification has been published under subsection (1) of section 20A for its acquisition,
but no declaration under sub-section (1) of
this section has been published within a
period of one year from the date of
publication of that notification, the said
notification shall cease to have any effect:

Provided that in computing the
said period of one year, the period during
which any action or proceedings to be taken
in pursuance of the notification issued under
sub-section (1) of section 20A is stayed by an
order of a court shall be excluded.

(4) A declaration made by the
Central Government under sub-section (1)
shall not be called in question in any court or
by any other authority.

22. Perusal of the recitals contained in
Section 20-A of the Railways Act, 1989
reveals that the Central Government under
the section merely declares its intention to
acquire land under the Notification for
special railways project. It is merely a
proposal. However, the recitals of Section
20-E reveals that on publication of the
Notification under Section 20-E, the land
shall vest absolutely in the Central
Government free from all encumbrances.
Sub section (3) of Section 20-E provides
that where in respect of any land, a
Notification under Section 20-A (1) of the
Act has been published, but no declaration
under Section 20-E (1) of the Act is
published within one year from the date of
Notification issued under sub-section (1) of
Section 20-E the said Notification shall
cease to have effect. Section 20-F deals
with determination of amount payable as
compensation. Section 20-F (2) provides
that an award is to be made within a period
of one year from the date of publication of
Notification under Section 20-E (1) and if
no award is made within that period, the
entire proceedings for acquisition of the
land shall lapse.

23. Applying the provisions discussed
above to the case at hand, we find that,
admittedly, the plot No. 139M area 0.0140
hectare was included in the Notification
dated 24.6.2016 under Section 20-A of the
Act, but the said plot was not included in
the
Notification/Declaration
dated
12.1.2017 under Section 20-E and as such,
it can safely be concluded that the Plot No.
139M area 0.0140 hectare has not been
acquired for the Special Railway Project. If
the plot has not been acquired, there is no
question of the acquisition proceedings to
348 INDIAN LAW REPORTS ALLAHABAD SERIES
have lapsed. The submissions of the
learned counsel for the petitioners in this
regard is misconceived and is hereby
rejected. The second issue is answered,
accordingly, against the petitioners.

24. Now, coming to the third and
most important issue as to whether the
resumption proceedings in respect of Plot
No. 139M area 0.0140 hectare under
Section 59 of the U.P. Revenue Code, 2006,
under the order dated 26.4.2017 of the
Commissioner,
Vindhyachal
Division,
Mirzapur is in accordance with law. We
have already held that the Plot No. 139M
area 0.0140 hectare along with the structure
(house) constructed thereon could not be
settled with the petitioners under Section
67-A of the U.P. Revenue Code, 2006 as an
area in excess of 200 square meters cannot
be settled in favour of the petitioners under
Section 67-A of the Revenue Code, 2006.
The settlement has attained finality so far
as the petitioners are concerned only to the
extent of 200 square meters of Plot No.
140M. Area in excess of 200 square meters
of Plot No. 140M and 139M combined i.e.
380 square meters is liable to be treated to
continue as Gaon Sabha land. The Land
Management Committee/Gaon Sabha as
also the State Government cannot be said to
be divested of any right, title or interest in
the said plot No. 139M area 0.0140
hectares and 380 square meters of Plot No.
140M and we are of the considered view
that the plot No. 139M area 0.0140 hectares
could be resumed treating it to be Gaon
Sabha Land. The third issue is thus
answered against the petitioners.

25.

Learned
counsel
for
the
respondent Nos. 1 & 7 has argued that land
in question i.e. Plot No. 139M area 0.0140
hectare is involved in a project of national
importance i.e. for construction of a
dedicated freight corridor that is the eastern
dedicated freight corridor with a route
length of 1873 Km., linking Ludhiana in
Punjab and Darkauni in West Bengal. The
project should be the lifeline to the
economy of the county and would provide
the infrastructure to reduce the time period
substantially in transporting goods as well
as the consumption of fuel involved in
transportation of the goods in comparison
of road transportation. The dedicated
freight corridor is the need of the day. The
dedicated freight corridor will decongest
already
saturated
road
network
and
promote shifting of freight transport to
more efficient rail transport. The total
estimated cost of DFCC project from Pt.
Deen
Dayal
Upadhyaya
Junction
to
Prayagraj Junction is more than Rs.3,000/-
crores which has increased by a significant
amount owing to delays in land acquisition
and other cost overruns. The target date for
commissioning of the project earlier fixed
as June, 2022 has since passed. For
commissioning, both the tracks Up and
Down need to be completed along with
signal, telecom and electrical supply. On
account of the interim order dated 3.1.2019
operating in the case, hindrance is being
caused by the private house of the
petitioners at Km. 155+030 and the
contractors are demanding hefty amount
owing to stoppage of work, idling of man
and machine. The house of the petitioners
which is existing over the plot No. 139M
area 0.0140 hectares is an obstruction in the
completion of the project. It is, thus, prayed
that the interim order passed by the Court is
liable to be vacated on the principle that the
higher public purpose shall have preference
over individual rights.

26. We have given our anxious
consideration to the submissions advanced
by the learned counsel for the respondent
9 All. Om Prakash & Ors. Vs. State of U.P. & Anr.
349
Nos. 1 & 7 and find substance in the same.
The Dedicated Freight Corridor project of
the railways is certainly a project of
national importance. The project has
certainly suffered on account of the present
litigation and on account of the status quo
order operating since 3.1.2019.

27. We find that the petitioners have
no right, title or interest in plot No. 139M
area 0.0140 hectares (140 square meters)
situate in village Pirallipur, Pargana Haveli,
Post Chunar, District Mirzapur as pleaded
and the same does not stand settled with
them under Section 67-A of the U.P.
Revenue Code, 2006. The house of the
petitioners is built over plot No. 140M and
139M with major portion lying over plot
No. 140M. An area upto 200 square meters
with structure thereon could alone be
settled with the petitioners under Section
67-A of the U.P. Revenue Code and not the
entire area of 0.0580 hectares (580 square
meters) comprised in plot No. 140M and
139M. No right can be said to have accrued
to the petitioners in respect of plot No.
139M and 140M in excess of 200 square
meters. The respondent Nos. 1 and 7 have
already determined the compensation in
respect of the dwelling house constructed
over plot No. 139M and 140M to the tune
of Rs.33,42,507/- which the petitioners are
entitled to collect from the respondents.

28. For the forgoing reasons, the writ
petition lacks merit and is, accordingly,
dismissed.
The
interim
order
dated
3.1.2019 is discharged

29. In the connected Writ-C No.
17435 of 2018 separate order would be
passed.
----------
(2022) 9 ILRA 349
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.08.2022

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Criminal Misc. Application U/S 482 No. 929 of
2017

Om Prakash & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Rajendra Prasad Mishra, Raghvendra Singh

Counsel for the Opposite Parties:
G.A., Anurag Singh, K.K. Singh Rathore,
Syed Aftab Ahmad

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 482 - Indian
Penal Code, 1860 - Sections 147, 30 &
201-Quashing
of
summoning
ordermurder-complainant's son was killed by
hanging from a tree-Investigating agency
filed
closure
report-Complainant
filed
protest petition, upon which learned
Magistrate
took
cognizance
and
summoned
the
accused-However,
mandatory provision of proviso 2 to sub
section 2 of Section 200 Cr.P.C. had not
complied with-In the instant case, learned
Magistrate opined that prima facie offence
is made out which is triable by Session
Court-Therefore, learned Magistrate called
upon the complainant to furnish list of
witnesses to be examined on oath to hold
an enquiry as the offence was exclusively
triable by the Sessions Court, thus,
learned Magistrate has not committed
any error of law in passing the order and
directing the complainant to file a list of
witnesses to be examined on oath before
committing the case to the learned
Session Court.(Para 1 to 35)

B. The complainant is not bound to
examine all the witnesses named in the
complaint,
only
those
witnesses
are