# Chaurasia v. State of U.P. reported in

- **Citation:** (2010) 1 ILRA 372
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-04-22
- **Case number:** Civil Misc. Writ Petition No. 30231 of 2008
- **Bench:** R.K. Agrawal, Mrs.Jayashree Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chaurasia-v-state-of-u-p-reported-in-41487
- **Pages:** 7

## Headnote

Urban Land (Ceiling & Regulation) Act
1976-Section
11
and
16-Writ
of
mandamus the State Government to
accept the amount of compensation
received earlier by the petitioner on
ground of his possession and the govt.
has
not
taken
actual
physical
possession-held-the moment on which
petitioner
received
80%
of
compensation-land deemed to be vested
with
government
free
from
all
encumbrances-now government can not
be compelled to received back said
compensation
and
handover
the
possession to the petitioner against
statutory provision-petition dismissed.

Held: Para 10, 11 &13

Section 16 of the Land Acquisition Act
provides that when the Collector has
made an award under Section 11, he
may take possession of the land, which
shall thereupon vest absolutely in the
Government free from all encumbrances.

In the present case before us, it is
admittedly
clear
that
80%
of
the
compensation has already been received
by the petitioner. In such circumstances,
1 All] Baboo Khan V. State of U.P. and others
373
the contention that they are still in
possession of the land is not sustainable.
The land shall be deemed to have vested
in
the
State
absolutely
in
the
Government free from all encumbrances.

So the substance which comes out from
perusal of this section is that it is the
sole discretion of the State Government
and the liberty provided to the State
Government
to
withdraw
from
the
acquisition but the Government cannot
be compelled or enforced to accept the
return amount of the compensation
received
by
the
petitioner
and
to
consider
and
withdraw
from
the
acquisition. No judicial intervention can
be made in the domain of the State to
apply its discretion or exercise its
powers
of
liberty
to
withdraw
its
acquisition.

## Text

372 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
8. I have heard learned counsel for
the parties and perused the affidavits.

9. The contention with regard to the
status of appointment of a compassionate
claimant is covered by the Division Bench
decision in the case of Yogendra Ram
Chaurasia Vs. State of U.P. reported in
(2002) 5 AWC 3708. The petitioner,
therefore, could not have been thrown out
of employment or given an alternative
employment
against
a
lower
post.
Secondly, the said order of termination of
the services of the petitioner could not
have been passed without giving any
notice
or
opportunity.
The
third
contention has also to be accepted
inasmuch as the writ petition filed by Lala
Ram
has
already
been
allowed.
Respondents had already filed counter
affidavits and after 16 years are praying
again for further time for which there is
no justification.

10. Accordingly on all three counts
the writ petition has to succeed. The order
impugned
dated
19.9.1994
as
communicated to the petitioner vide letter
dated 6.10.1994 is quashed. Petitioner
shall be treated to have been continuing
on the post in question and he shall be
entitled to all consequential benefits.

11. The writ petition is accordingly
allowed. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.04.2010

BEFORE
THE HON'BLE R.K. AGRAWAL, J.
THE HON'BLE MRS.JAYASHREE TIWARI, J.

Civil Misc. Writ Petition No. 30231 of 2008

Baboo Khan

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Manish Goyal

Counsel for the Respondents:
Sri Vivek Varma
C.S.C.

Urban Land (Ceiling & Regulation) Act
1976-Section
11
and
16-Writ
of
mandamus the State Government to
accept the amount of compensation
received earlier by the petitioner on
ground of his possession and the govt.
has
not
taken
actual
physical
possession-held-the moment on which
petitioner
received
80%
of
compensation-land deemed to be vested
with
government
free
from
all
encumbrances-now government can not
be compelled to received back said
compensation
and
handover
the
possession to the petitioner against
statutory provision-petition dismissed.

Held: Para 10, 11 &13

Section 16 of the Land Acquisition Act
provides that when the Collector has
made an award under Section 11, he
may take possession of the land, which
shall thereupon vest absolutely in the
Government free from all encumbrances.

In the present case before us, it is
admittedly
clear
that
80%
of
the
compensation has already been received
by the petitioner. In such circumstances,
1 All] Baboo Khan V. State of U.P. and others
373
the contention that they are still in
possession of the land is not sustainable.
The land shall be deemed to have vested
in
the
State
absolutely
in
the
Government free from all encumbrances.

So the substance which comes out from
perusal of this section is that it is the
sole discretion of the State Government
and the liberty provided to the State
Government
to
withdraw
from
the
acquisition but the Government cannot
be compelled or enforced to accept the
return amount of the compensation
received
by
the
petitioner
and
to
consider
and
withdraw
from
the
acquisition. No judicial intervention can
be made in the domain of the State to
apply its discretion or exercise its
powers
of
liberty
to
withdraw
its
acquisition.

(Delivered by Hon'ble Jayashree Tiwari, J.)

1. The present writ petition has been
filed for grant of writ of certiorari for
quashing the order dated 28.3.2008
passed by respondent no. 1 and also for
quashing the possession letter dated
10.2.1986 and also for a writ of
mandamus directing the respondents to
accept the amount of compensation
awarded to be returned by the petitioner.

2. Briefly stating contentions of the
petitioner is that in respect of disputed
land proceedings were instituted against
the petitioner seeking for declaration of
land measuring an area of 5652.6478 Sq.
Metres as surplus land with the petitioner.
As the same was declared surplus by the
respondents vide order dated 26.10.1983
and the State assumed ownership over the
said land on 8.2.1986. These proceedings
were enunciated ex-parte under the
Ceiling Act against the petitioner. Hence
the petitioner filed an appeal under
Section 33(1) of the Urban Land (Ceiling
and Regulation) Act, 1976 which was
numbered as Misc. Appeal No. 286 of
1993. The appellate authority stayed the
dispossession of the petitioner and after
deciding on merit allowed in favour of the
petitioner. The matter was remanded back
for
reconsideration
afresh
by
the
competent authority vide order dated
16.11.1995. Against the aforesaid order
the State preferred a writ petition on
27.5.1997.
The
writ
petition
was
dismissed. Against that dismissal order
the Special Leave Petition was filed on
17.12.1988 which again was dismissed by
the Apex Court.

3. Respondent no. 1 in between
issued a notification under Section 4 of
the Land Acquisition Act wherein the
entire land belonging to the petitioner
including the land which formed part of
the of the ceiling proceeding as aforesaid
was a subject matter of that notification.
On 8.2.1990 notification under Section 6
of the Land Acquisition Act was also
issued. The declaration under Section 4
and 6 was challenged before the High
Court in writ petition no. 5462 of 1990
which writ petition was allowed on
20.8.1983 and the declaration under
Section 6 was quashed. Under section 6 of
the Land Acquisition Act the land of the
petitioner was shown to be included in the
said declaration. Consequently, award
was made on 29.2.1982 and on 7.2.2001
which was challenged before Hon'ble
High Court and was dismissed by a
Division Bench vide order dated 5.1.2000.
The Special Leave Petition was filed
before the Hon'ble Supreme Court by the
Agra Development Authority and the
award was amended as per order and the
amended award was published as per
order of the Hon'ble Supreme Court. The
petitioner's land which was subject matter
374 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
of the proceeding under the Ceiling Act
was never transferred to the State
Government nor any possession with
regard to the same was taken by the State
Government. It is apparent from the
possession certificate dated 30.3.1991.
This possession was acknowledged by
respondent no. 3 who directed the
petitioner that since the compensation has
been paid to the petitioner by mistake for
the entire land, the same may be refunded
by the petitioner alongwith interest for the
land measuring 1 Bigha and 5 Biswas
which does not form part of the
acquisition proceedings.

The petitioner approached respondent no.
3 for depositing the said amount but the
said amount was not accepted and
therefore he approached respondent no. 1
by means of representation and requested
respondent no. 1 to release the land in
favour of the petitioner and whatever
compensation
was
received
by
the
petitioner was directed to be refunded to
the respondent no. 4 through respondent
no. 3. The said representation of the
petitioner has been rejected by the
respondent no. 1.

4. The State Government filed its
counter affidavit denying the averments
as made and filed affidavit of Sri Baboo
Ram, Under Secretary Awas Evam
Shahari Niyojan Department, Government
of U.P. While denying the contentions
raised in the writ petition it is submitted
that in notification under Section 4 of the
Land Acquisition Act the petitioner's plot
no. 460 was included and subsequently
notification under section 6 was issued.
The urgency clause was invoked. The
contention that ceiling proceedings were
ex-parte proceedings and notice under
Section 10(1) was not served is denied. It
is contended that due procedure regarding
ceiling act was followed and at this stage
they need not reply. The petitioner has no
right, title or interest at present over the
plot no. 460 measuring 2 Bigha 1 Biswa
and 18 Biswansi. It is further contended
that
possession
memo
dated
dated
30.3.1991 shows that possession of total
area of plot no. 460 have been handed
over to the Agra Development Authority
who is at present in actual physical
possession over the plot alongwith other
plots. The representations of the petitioner
dated 12.12.2007 and 26.2.2008 have
been duly disposed of vide order dated
28.3.2008 which is annexure 1 to the writ
petition. The said representations have
been disposed of considering each and
every aspect of the matter. The petitioner
has failed to make out the case under
Section 226 of the Constitution of India.
The contention is denied and is liable to
be dismissed.

5. Against the averments made in
the counter affidavit, a rejoinder affidavit
has been filed on behalf of the petitioner
wherein the contentions raised in the
counter affidavit have been denied. It is
contended that till date the plot no. 460 is
not transferred to the State Government
nor any possession was taken. That after
quashing of the declaration under Section
6 of the Land Acquisition Act by the High
Court fresh declaration has been made on
16.1.1995. The petitioner is still in actual
physical possession over the plot no. 460
and the possession was never obtained by
the State Government and the excess
compensation paid to the petitioner may
be refunded with interest for the land in
question. Order dated 28.3.2008 is not
sustainable in law.
1 All] Baboo Khan V. State of U.P. and others
375
6. Now coming to the main
controversy as comes out in the rival
submissions made by the parties as to
whether the possession taken by the State
under emergency clause invoking section
17-A of the Land Acquisition Act by
paying 80% of the compensation is
completed or whether the contention of
the petitioner that since possession is still
with him despite the fact that he has
received 80% of the compensation and is
ready to return the same is sustainable or
the process for possession under law is
complete
or
incomplete.
Secondly,
whether
the
Government
can
be
compelled to exercise its power as
enunciated under Section 48 of the Land
Acquisition Act on the ground that the
applicant is ready and willing to return the
amount of compensation received by him
and is praying for the return of his land.

7. In this connection it will be
appropriate to go through the scheme as
enunciated in the provisions of Land
Acquisition Act. Under Section 4 of the
Act there is publication of preliminary
notification which shows the intention of
the appropriate Government to acquire
certain lands for public purposes. Under
Section 6 a declaration is made of
intended acquisition. In the normal course
when publication of section 6 is made
then the normal procedure followed is that
the Collector shall take order for
acquisition.
Section
7
shows
that
whenever any land shall have been so
declared to be needed for a public purpose
or for a company, the appropriate
Government or some officer authorised
by the appropriate Government in this
behalf, shall direct the Collector to take
order for the acquisition of the land and
thereafter under Section 8 of the Act the
land so needed shall be marked out,
measured and planned and thereafter
under Section 9 public notice shall be
given by the Collector to persons
interested and then the Collector shall
make an inquiry and also then make an
award under Section 11 of the Act.
Section 11 (A) provides that in normal
course such an award shall be made
within a period of two years from the date
of publication of declaration under
Section 6 and in case the award is not
made within the stipulated period the
acquisition proceedings shall stand lapse
and under Section 12 it is provided that
award made by the Collector shall
become final as between collector and
interested persons. The Collector shall
give notice of his award to such of the
persons interested under sub Section (2)
of Section 12 of the Act. Then after
competing
all
the
formalities
as
mentioned and as and when needed under
Sections 13, 13-A,14, 15 and 15(A) the
award becomes final. The Collector shall
under Section 16 exercise his power to
take possession. Section 16 of the Act
says like this that when the Collector has
made an award under Section 11, he may
take possession of the land, which shall
thereupon
vest
absolutely
in
the
Government, free from all encumbrances.
In the scheme of the Land Acquisition
Section 17 is the Special Powers in cases
of urgency.
Section 17. Special powers in cases of
urgency._(1)
In
cases
of
urgency,
whenever the appropriate Government so
directs, the Collector, though no such
award has been made, may, on the
expiration of fifteen days from the
publication of the notice mentioned in
section 9, sub-section (1) take possession
of any land needed for a public purpose.
Such land shall thereupon vest absolutely
376 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
in
the
Government
free
from
all
encumbrances.
(2) Whenever owing to any sudden
change in the channel of any navigable
river or other unforeseen emergency, it
becomes necessary for any Railway
administration to acquire the immediate
possession
of
any
land
for
the
maintenance of their traffic or for the
purpose of making thereon a river-side or
ghat station, or of providing convenient
connection with or access to any such
station, or the appropriate Government
considers it necessary to acquire the
immediate possession of any land for the
purpose of maintaining any structure or
system pertaining to irrigation, water
supply, drainage, road communication or
electricity,
the
Collector
may,
immediately after the publication of the
notice mentioned in sub-section (1) and
with the previous sanction of the
appropriate Government enter upon and
take possession of such land, which shall
thereupon
vest
absolutely
in
the
Government free from all encumbrances:

Provided that the Collector shall not
take possession of any building or part of
a building under this sub-section without
giving to the occupier thereof at least
forty-eight hours' notice of his intention
so to do, or such longer notice as may be
reasonably sufficiently to enable such
occupier to remove his movable property
from such building without unnecessary
inconvenience.
(3) In every case under either of the
preceding sub-sections the Collector shall
at the time of taking possession offer to
the persons interested, compensation for
the standing crops and trees (if any) on
such land and for any other damage
sustained by them caused by such sudden
dispossession and not excepted in section
24, and; in case such offer is not accepted,
the value of such crops and trees and the
amount of such other damage shall be
allowed for in awarding compensation for
the land under the provisions herein
contained.
(3A) Before taking possession of any land
under sub-section (1) or sub-section (2),
the Collector shall, without prejudice to
the provisions of sub-section (3),-

(a) tender payment of eighty per centum
of the compensation for such land as
estimated by him to the persons interested
entitled thereto, and
(b) pay it to them, unless prevented by
some one or more of the contingencies
mentioned in section 31, sub-section (2),
and where the Collector is so prevented,
the provisions of section 31, sub-section
(2), (except the second proviso thereto,)
shall apply as they apply to the payment
of compensation under that section.
(3B)
The amount paid or deposited
under sub-section (3A), shall be taken
into account for determining the amount
of compensation required to be tendered
under Section 31, and where the amount
so
paid
or
deposited
exceeds
the
compensation awarded by the Collector
under section 11, the excess may, unless
refunded within three months from the
date
of
the
Collector's
award,
be
recovered as an arrear of land revenue.
(4) In the case of any land to which, in
the
opinion
of
the
appropriate
Government, the provisions of subsection (1) or sub-section (2) are
applicable the appropriate Government
may direct that the provisions of section
5A shall not apply, and, if it does so
direct, a declaration may be made under
section 6 in respect of the land at any time
after the date of the publication of the
1 All] Baboo Khan V. State of U.P. and others
377
notification under Section 4, sub-section
(1).

8. Thus the main question involved
in the case is to consider in the light of the
scheme as enunciated under the land
Acquisition Act in the aforesaid quoted
sections. It has to be considered whether
the contention of the petitioner that he is
still in possession of the land is
sustainable in the light of the provisions
as enunciated. It is admitted to the
petitioner that he has already obtained
80% of the compensation amount and in
exercise of the power under Section 17 of
the Act there is no denial to the fact that
80% of the compensation has already
been tendered and obtained by the
petitioner.

9. Now, the question remains to be
considered is whether the possession, as
alleged by the petitioner, that he is still in
possession is sustainable in the eye of law
or not. A perusal of Section 16 (2) of the
Act clearly indicates that affect of such
taking possession as has been mentioned
in Section 16(1) may be notified by the
Deputy Commissioner.

10. Section 16 of the Land
Acquisition Act provides that when the
Collector has made an award under
Section 11, he may take possession of the
land,
which
shall
thereupon
vest
absolutely in the Government free from
all encumbrances.

11. In the present case before us, it
is admittedly clear that 80% of the
compensation has already been received
by the petitioner. In such circumstances,
the contention that they are still in
possession of the land is not sustainable.
The land shall be deemed to have vested
in the State absolutely in the Government
free from all encumbrances.

12. So far as the contention of the
petitioner that he is ready to return the
amount received and the Government
may be directed to accept from the
petitioner the amount of Rs.2,32,394.71
alongwith interest with respect to the
disputed land which was received by the
petitioner as compensation and the
Government may allow the prayer for
withdrawal from acquisition is concerned,
in this connection it is obvious from the
perusal of Section 48 of Land Acquisition
Act which reads as follows

"Section
48.
Completion
of
Acquisition
not
compulsory,
but
compensation to be awarded when not
completed:- (1) Except in the case
provided
for
in
section
36,
the
Government shall be at liberty to
withdraw from the acquisition of any land
of which possession has not been taken.
(2)
Whenever
the
Government
withdraws from any such acquisition, the
Collector shall determine the amount of
compensation
due
for
the
damage
suffered by the owner in consequence of
the
notice
or
of
any
proceedings
thereunder, and shall pay such amount to
the person interested, together with all
costs reasonably incurred by him in the
prosecution of the proceedings under this
Act relating to the said land.
(3) The provisions of Part III of this
Act shall apply, so far as may be, to the
determination
of
the
compensation
payable under this section."

13. So the substance which comes
out from perusal of this section is that it is
the
sole
discretion
of
the
State
Government and the liberty provided to
378 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
the State Government to withdraw from
the acquisition but the Government
cannot be compelled or enforced to accept
the return amount of the compensation
received by the petitioner and to consider
and withdraw from the acquisition. No
judicial intervention can be made in the
domain of the State to apply its discretion
or exercise its powers of liberty to
withdraw its acquisition.

14. Considering the entirety of the
circumstances when already 80% of the
compensation has been received by the
petitioner and the discretion of the State
cannot be compelled in any way, there is
no force in the contention of the
petitioner.

15. The writ petition appears to be
not maintainable and therefore dismissed
accordingly.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.03.2010

BEFORE
THE HON'BLE AMITAVA LALA, ACJ
THE HON'BLE ASHOK SRIVASTAVA, J.

Civil Misc. Writ Petition No. 13424 of 2010

Satish Chandra Pandey
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri S.K. Chaubey

Counsel for the Respondents:
Sri Anuj Kumar
Sri H.N. Shukla
Sri R.K. Shukla on behalf of Gaon Sabha
C.S.C.

Constitution of India Art. 226-Public
Interest Litigation U.P. Punchayat Raj
Act 1947-Section 95(g)-suspension of
Gaon
Pradhan-on
allegation
of
construction of Punchayat Bhawan and
Jachcha Bachcha Hospital digging of
pond land on another Gaon Sabha land
already
in
progress-No
financial
irregularity
found-nor
the
village
Pradhan mis appropriated Gaon Sabha
and for his personal benefits-suggestion
given by Chief Development Officer
approved-petitioner
highlighting
irregularities in shape of PIL-held-liable
to be dismissed.

Held: Para 12

Therefore, the suggestion in the form of
letter, as given by the Chief Development
Officer,
seems
to
be
appropriate.
Therefore,
on
the
basis
of
that
suggestion of Chief Development Officer,
if the pond is being made, that can be
done
as
expeditiously
as
possible.
However, even having such suggestion
for construction of pond in a place other
than the place of pond which has been
converted for the public purpose, if the
writ petitioners feel aggrieved then it
clearly indicates that in the back of
making this writ petition, the public
interest is not there but some sort of
private interest is there, which cannot be
encouraged by the Court. It is well
settled that complainant cannot make
such petitions and hence on both the
accounts, we dismiss the writ petition
filed in the form of Public Interest
Litigation, however, without imposing
any cost considering the facts and
circumstances of the case.
Case law discussed:
(2001) 6 SCC 496, 2009 (3) UPLBEC 2868.

(Delivered by Hon'ble Amitava Lala, ACJ)

1. The petitioner is a complainant.
He filed a complaint satisfying the
provisions of Section 95 (g) of the U.P.
Panchayat Raj Act, 1947 (hereinafter