# Deepak Sharma v. State of U.P. & Ors

- **Citation:** (2024) 3 ILRA 1850
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-20
- **Case number:** J. Writ -C No. 2208 of 2024
- **Bench:** Ashwani Kumar Mishra, Syed Qamar Hasan Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deepak-sharma-v-state-of-u-p-ors-51558
- **Pages:** 5

## Headnote

Civil Law - Land Acquisition Act, 1894 -
Sections 4, 6, 9, 11 & 17 - Constitution Of
India,1950 - Article 226 & 300-A - Writ
petition
seeking
mandamus
to
restrain
respondents from demolishing construction and
interfering with possession on acquired land
(Plot No. 534, Village Tushyana, Gautam Buddh
Nagar) - Held, land acquired under Section
4(1)/17(4)
and
Section
6(1)/17(1)
with
possession taken on 02.02.2007 and award
made on 27.04.2010 - Acquisition proceedings
attained finality, vesting land in St. free from
encumbrances - No writ of mandamus can be
issued to restrain St. from utilizing acquired land
- Petitioner's claim of settled possession or
regularization under Greater Noida Industrial
Development Rural Abadi Sites Regulation, 2011
rejected
-
Pending
revision
before
St.
Government does not justify restraining St. - No
violation of Article 300-A as acquisition lawful.
(Para 8-19)

Writ petition dismissed.

List of Cases Cited:

## Text

1850 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2024) 3 ILRA 1850
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.02.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SYED QAMAR HASAN RIZVI,
J.

Writ -C No. 2208 of 2024

Deepak Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vineet Kumar Singh, Sri H.N. Singh (Sr.
Advocate)

Counsel for the Respondent:
Ms. Anujali Upadhya, C.S.C.

Civil Law - Land Acquisition Act, 1894 -
Sections 4, 6, 9, 11 & 17 - Constitution Of
India,1950 - Article 226 & 300-A - Writ
petition
seeking
mandamus
to
restrain
respondents from demolishing construction and
interfering with possession on acquired land
(Plot No. 534, Village Tushyana, Gautam Buddh
Nagar) - Held, land acquired under Section
4(1)/17(4)
and
Section
6(1)/17(1)
with
possession taken on 02.02.2007 and award
made on 27.04.2010 - Acquisition proceedings
attained finality, vesting land in St. free from
encumbrances - No writ of mandamus can be
issued to restrain St. from utilizing acquired land
- Petitioner's claim of settled possession or
regularization under Greater Noida Industrial
Development Rural Abadi Sites Regulation, 2011
rejected
-
Pending
revision
before
St.
Government does not justify restraining St. - No
violation of Article 300-A as acquisition lawful.
(Para 8-19)

Writ petition dismissed.

List of Cases Cited:
1. Indore Development Authority Vs Manoharlal,
(2020) 8 SCC 129

2.
Land
&
Building
Department
through
Secretary & anr. Vs Attro Devi, Civil Appeal No.
2749 of 2023 (decided on 11.04.2023)

(Delivered by Hon'ble Ashwani Kumar
Mishra, J & Hon'ble Syed Qamar Hasan
Rizvi, J.)

1. This writ petition has been filed
with the prayer to issue a writ of mandamus
commanding
the
respondents
not
to
demolish the construction of petitioner
situated on plot no.534 having an area of
0.7510 hectare situated in village Tushyana,
Pargana and Tehsil Dadri, District Gautam
Buddh Nagar. A further prayer is made to
command the respondents not to interfere
in the peaceful possession of the petitioner
on the aforesaid plot.

2. Facts of the case, as emerge from
the record, are that the State Government
exercising its power of eminent domain
issued
a
notification
under
Section
4(1)/17(4) of the Land Acquisition Act,
1894 (hereinafter referred to as 'the Act') on
10.4.2006 for acquisition of the plot in
question. Urgency clause was invoked and
the inquiry contemplated under Section 5-A
of the Act was dispensed with. A
declaration under Section 6(1)/17(1) of the
Act came to be made on 30.11.2006. The
respondents took possession of the entire
acquired land of plot no.534 on 2.2.2007.
An award in terms of Section 11 of the Act
was made by the District Magistrate on
27.4.2010. It is undisputed that by invoking
the power of acquisition under the Act the
State acquired the entire land of plot no.534
and the acquisition proceedings have
attained finality. Neither the award is under
challenge nor any of the proceedings
undertaken thereunder. The effect of such
3 All. Deepak Sharma Vs. State of U.P. & Ors.
1851
acquisition proceedings, in the context of
prayer made in the writ petition, would be
dealt with a little later.

3. Petitioner submits that in the
proposal submitted for acquisition it was
found that plot no.534 had six shops and a
gallery and that by virtue of a provision
contained in the Government Order dated
24.4.2010 the petitioner was entitled to
lease back of the portion of land which was
covered by the Government Order.

4. Sri H.N. Singh, learned Senior
counsel for the petitioner also places
reliance upon the provisions contained in
Greater Noida Industrial Development
Rural Abadi Sites (Management and
Regularization) Regulation, 2011, in order
to submit that petitioner has a right of
regularization of rural abadi site which
existed before 30.6.2011. Attention of the
Court has been invited to Regulation 4 of
the 2011 Regulation which contemplates
constitution of a committee and the
functions of the committee have been
defined in Rule 5. According to the
petitioner there exists a provision for
moving of an application for regularization
and the maximum land which can be settled
for residential/commercial use have been
specified. It is submitted that though such
an application was moved by the petitioner
but such plea of protection of abadi area is
rejected by the Chief Executive Officer.
The matter was carried in revision before
the State, wherein also the petitioner was
non-suited.

5. Writ-C no.18997 of 2023 filed
against the revisional order has been
allowed and the matter has been remitted
back to the State Government for a fresh
consideration. It is submitted that the State
Government has not reconsidered the
matter and in between the authorities are
proposing to take physical possession of
the petitioner's land. It is also submitted
that since the petitioner is in settled
possession over the property, as such he
cannot
be
dispossessed
except
in
accordance with law. According to learned
Senior counsel, this would require filing of
a suit by the development authority for
taking
possession
or
for
filing
of
appropriate proceedings under the Public
Premises
(Eviction
of
Unauthorized
Occupants) Act, 1971. Since this has not
been done, the authorities ought to be
restrained in the present writ from
interfering with the petitioner's possession.

6. Ms. Anjali Upadhya, learned
counsel for the respondent-authority, on the
other hand, submits that the acquisition
proceedings having been concluded, in
accordance with law, right, title or interest
of the petitioner stands extinguished in the
property and, therefore, no writ of
mandamus can be issued to protect
petitioner's possession over such acquired
land. It is also submitted that since the
claim of settlement of abadi by virtue of
Regulations of 2011 also stands rejected,
and the petitioner has not sought any
protection in his pending revision before
the State Government, he is not entitle to
any relief.

7. We have heard learned counsel for
the parties and have perused the materials
on record.

8. From the facts as have been noticed
above it is abundantly clear that land falling
part of khasra no.534 stood acquired
pursuant to declaration made under Section
6 of the Act. Satisfaction that such land is
needed for public purposes has attached
finality. Section 17 of the Act of 1894
1852 INDIAN LAW REPORTS ALLAHABAD SERIES
containing urgency clause has also been
invoked while issuing declaration under
Section 6 of the Act. Section 17(1) of the
Act clearly provides that in case of urgency
the State is free to take possession of the
land on expiration of fifteen days from the
date of notice mentioned under Section 9 of
the Act upon payment of 80% estimated
compensation. As a consequence such land
shall thereupon vest absolutely in the
Government free from all encumbrances.

9. As a result of the above statutory
scheme, it is clear that when the possession
of the land is taken after issuance of notice
under Section 9 of the Act, the tenure
holder would be extinguished of any right,
title or interest over such land. The
statutory
consequence,
as
is
clearly
enumerated in law, cannot be avoided or
obstructed by the tenure holder, particularly
when the acquisition proceedings itself are
not under challenge.

10. We find substance in the
contention advanced on behalf of the
respondents that once the land has been
acquired; possession has been taken on
2.2.2007; and an award has been made
under Section 11 of the Act on 27.4.2010
the vesting of a land in the State would be
complete. It is otherwise a case of
invocation of urgency and, therefore,
before award such vesting shall follow if
possession is taken after notice under
Section 9 of the Act.

11. The position of law in this regard
has already been settled by the Constitution
Bench of Supreme Court in Indore
Development Authority v. Manoharlal and
Others (2020) 8 SCC 129. After analyzing
the statutory scheme, the Court held as
under in para 258 of the judgment:-

"258. Thus, it is apparent that
vesting is with possession and the statute
has provided under Sections 16 and 17 of
the 1894 Act that once possession is taken,
absolute
vesting
occurred.
It is
an
indefeasible right and vesting is with
possession thereafter. The vesting specified
under Section 16, takes place after various
steps, such as, notification under Section 4,
declaration under Section 6, notice under
Section 9, award under Section 11 and then
possession. The statutory provision of
vesting of property absolutely free from all
encumbrances has to be accorded full
effect. Not only the possession vests in the
State but all other encumbrances are also
removed forthwith. The title of the
landholder ceases and the State becomes
the absolute owner and in possession of the
property. Thereafter there is no control of
the landowner over the property. He cannot
have any animus to take the property and to
control it. Even if he has retained the
possession or otherwise trespassed upon it
after possession has been taken by the
State, he is a trespasser and such
possession of trespasser enures for his
benefit and on behalf of the owner."

12. Once that be so, we find that no
writ of mandamus can be issued against the
State or the acquiring body to obstruct the
utilization of land which has already vested
in the authority free from all encumbrances.
No further notice is otherwise required to
be issued to the petitioner in the matter.

13. Writ of mandamus can only be
issued for performance of a legal obligation
on
part
of
the
State
or
its
instrumental/authority.
No
writ
of
mandamus can be issued for restraining the
State/authority from undertaking act which
is, in accordance with law. Since the
vesting of land is complete in the State
3 All. Deepak Sharma Vs. State of U.P. & Ors.
1853
consequent upon acquisition of land, it
would not be open for the petitioner to
claim issuance of a writ of mandamus for
restraining the respondents from asserting
their right over the acquired land.

14. The argument that petitioner is in
settled possession and, therefore, can be
dispossessed only as per law is also an
argument bereft of merits. As the land has
statutorily vested in the State/authority free
from all encumbrances, and possession
over the land has otherwise been taken in
the manner stipulated in law, it would not
be necessary for the authority to either
institute a suit to take possession or to
institute proceedings under Public Premises
(Eviction of Unauthorized Occupants) Act,
1971 to physically dispossess the petitioner.
The acquisition by the State/authority is of
a vast tract of agricultural land and it would
not be expected that actual physical
possession continues with the State on
every inch of the land. Taking of possession
pursuant to notice under Section 9 of the
Act is otherwise not disputed. In such
circumstances, the grievance raised that
petitioner is being evicted except in
accordance with law is devoid of merits
and, therefore, rejected.

15. Supreme Court in Land &
Building Department through Secretary &
Anr. vs. Attro Devi in Civil Appeal
No.2749 of 2023 decided on 11.4.2023 has
made following observations in para 13:-

"13. It is also a fact to be noticed
and taken care of that large chunk of land
is acquired for planned development to take
care of immediate need and also keep
buffer for future requirements. Such portion
of land may be lying vacant also. As has
been observed in Indore Development
Authority's case (supra) by this Court, the
State agencies are not supposed to put
police force to protect possession of the
land taken after process of acquisition is
complete........"

16. So far as existence of structures
on the plot of the petitioner is concerned,
we are of the view that such structures
would form part of land acquired under the
Act and also vest in the authority free from
all encumbrances. The petitioner at best
would be entitle to claim compensation for
such
structures
as
per
the
award.
Undisputedly, the award has been made on
27.4.2010. Neither the award has been
placed before the Court nor there are any
pleadings that in the award adequate
compensation for structures have not been
provided. In the absence of any challenge
to the award, we refrain ourselves from
expressing anything further in respect of
petitioner's right of compensation over such
land which has vested in the State/authority
free from all encumbrances.

17. So far as the petitioner's claim of
protection of his abadi site is concerned, we
find that decision by the committee has
already taken to reject petitioner's claim
and that matter has now been remitted to
the State Government. Remedy of the
petitioner, in such circumstances, would be
to press his revision before the State or to
move appropriate application etc. for its
expeditious disposal. Merely because the
revision is pending we would not be
justified in issuing a writ of mandamus to
restrain the authority from interfering with
petitioner's possession when the land has
statutorily vested in the State free from all
encumbrances.

18. So far as petitioner's contention
that Article 300-A of the Constitution of
India is violated is concerned, we find such
1854 INDIAN LAW REPORTS ALLAHABAD SERIES
argument to be misconceived, inasmuch as
the protection which the Constitution
provides under Article 300-A is that a
person would not be deprived of his
property except in accordance with law.
Since
the
acquisition
herein
is
in
accordance with the provisions of the Act
of 1894, the consequence in the nature of
vesting of land cannot be treated to be an
act violative of Article 300-A.

19. The writ petition is, accordingly,
dismissed.
----------
(2024) 3 ILRA 1854
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.02.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SYED QAMAR HASAN RIZVI,
J.

Writ-C No. 2511 of 2024

Manish Kumar Patel ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Birendra Kumar Arya

Counsel for the Respondents:
C.S.C., Sri Jai Bahadur Singh

Civil Law - Constitution of India,1950Article 226-U.P. Industrial Development
Act,1976-Section 2(d)-The petitioner an
agriculturist
challenged
a
notification
dated 25.09.2023 issued u/s 2(d) of the
Act,1976 which included his village within
the
territorial
limits
of
the
U.P.
Expressways
Industrial
Development
Authortiy(UPEIDA)-He argued that this
inclusion
would
prevent
him
from
continuing
agricultural
activities
and
affect his right to live, including the ability
to construct the house-The court held that
the notification was neither arbitrary nor
malafide-the petitioner failed to show any
misuse of power or ulterior motives
behind the notification-The court affirms
the State's discretion to promote planned
industrial development while protecting
agricultural rights until land acquisition
occurs as per legal norms.(Para 1 to 11)
.(E-6)

(Delivered by Hon'ble Ashwani Kumar
Mishra, J. & Hon'ble Syed Qamar Hasan
Rizvi, J.)

1. Heard learned counsel for the
parties.

2. This petition has been filed by
the petitioner, who claims to be the resident
of village Wari at district Prayagraj,
challenging a notification issued by the
State Government dated 25.9.2023, under
Section
2(d)
of
the
U.P.
Industrial
Development Act, 1976, whereby various
villages including village Wari has been
included within the territorial limits of the
U.P. Expressways Industrial Development
Authority (UPEIDA). The notification is
primarily challenged on the ground that the
petitioner, who is agriculturist of the village
would now be prevented from undertaking
any agricultural activity on his own land. It
is also submitted that on account of the
notification under challenge the petitioner
would
be
prevented
from
raising
construction of his house etc. It is also
submitted that the petitioner's right to live
would also be affected.

3. Petition is opposed by the
learned State counsel as also Sri J.B. Singh,
learned counsel for the second respondent,
on the ground that the notification issued
by the State is perfectly just and valid and
requires
no
interference.