# Heera Singh v. State of U.P. & Ors

- **Citation:** (2023) 2 ILRA 604
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-11
- **Case number:** Writ-C No. 12112 of 2022
- **Bench:** Rajesh Bindal, C.J. J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/heera-singh-v-state-of-u-p-ors-49213
- **Pages:** 4

## Headnote

Sri Ajay Prakash Paul, State Law Officer,
Ms. Ishita Sand, Ms. Anjali Upadhya

Constitution
of
India,
Art.
226
-
Mandamus - Uttar Pradesh Urban Planning
and Development Act, 1973 - Section 17 -
restoration of the land - Held - there is no
automatic lapse of acquisition u/s 17 -
proviso to S. 17(1) of the Act gives a right
to an ousted land holder to apply to the
State Government for restoration of land,
if it remains unutilized by a Development
Authority after expiration of a period of
five years from the date of acquisition -
right is to apply for restoration and not to
any kind of an automatic restoration that
the Court may enforce - It is for the
Government to decide, if a person applies
for the enforcement of his rights under
Section 17(1), which the Government may
grant or refuse - Even if the Government
does consider it to be a case for the
restoration of land to the original land
holder, it is subject to repayment of
charges
incurred
in
connection
with
acquisition, together with interest at the
rate
of
12%
per
annum,
besides
development charges, if any, as have been
incurred - no mandamus can be issued to
the Government or the Greater NOIDA by
the mere lapse of a time period of five
years after acquisition, during which the
land has not been utilized (Para 6)

Dismissed. (E-5)

List of Cases cited:

Shyoraj Singh & anr. Vs St. of U.P. & ors. (2022)
1 All LJ 546

## Text

604 INDIAN LAW REPORTS ALLAHABAD SERIES

35. The writ petition is accordingly
disposed of.
----------
(2023) 2 ILRA 604
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.05.2022

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE J.J. MUNIR, J.

Writ-C No. 12112 of 2022

Heera Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Gautam Kumar

Counsel for the Respondents:
Sri Ajay Prakash Paul, State Law Officer,
Ms. Ishita Sand, Ms. Anjali Upadhya

Constitution
of
India,
Art.
226
-
Mandamus - Uttar Pradesh Urban Planning
and Development Act, 1973 - Section 17 -
restoration of the land - Held - there is no
automatic lapse of acquisition u/s 17 -
proviso to S. 17(1) of the Act gives a right
to an ousted land holder to apply to the
State Government for restoration of land,
if it remains unutilized by a Development
Authority after expiration of a period of
five years from the date of acquisition -
right is to apply for restoration and not to
any kind of an automatic restoration that
the Court may enforce - It is for the
Government to decide, if a person applies
for the enforcement of his rights under
Section 17(1), which the Government may
grant or refuse - Even if the Government
does consider it to be a case for the
restoration of land to the original land
holder, it is subject to repayment of
charges
incurred
in
connection
with
acquisition, together with interest at the
rate
of
12%
per
annum,
besides
development charges, if any, as have been
incurred - no mandamus can be issued to
the Government or the Greater NOIDA by
the mere lapse of a time period of five
years after acquisition, during which the
land has not been utilized (Para 6)

Dismissed. (E-5)

List of Cases cited:

Shyoraj Singh & anr. Vs St. of U.P. & ors. (2022)
1 All LJ 546

(Delivered by Hon'ble Rajesh Bindal, C.J.
&
Hon'ble J.J. Munir, J.)

1. Heard learned counsel for parties.

2. It appears that the petitioner has
brought this petition, seeking to redeem his
land bearing Khasra No. 375, admeasuring
3240/2 square meters, situate at Village
Dabra, Pargana and Tehsil Dadri, District
Gautam Buddh Nagar, which has been
acquired by the State under the Land
Acquisition Act, 1894 (for short 'the Act of
1894') for the purpose of planned industrial
development by the Greater New Okhla
Industrial
Development
Authority
(hereinafter
referred
to
as
'Greater
NOIDA').
The
aforesaid
land
shall
hereinafter referred to as 'the land in
dispute'.

3. It appears that the land in dispute
was acquired through a notification dated
October 31, 2005 under Section 4/17 of the
Act of 1894 followed by a declaration
dated September 1, 2006 under Section
6/17 of the Act. A perusal of the khatauni
for the years 1409-1414, that correspond to
the calendar years 2001-2006, shows that in
compliance with the order of the Additional
District Magistrate (Land Acquisition)
Greater NOIDA, the name of the ousted
2 All. Heera Singh Vs. State of U.P. & Ors.
605
land holder, Heera Singh, the petitioner has
been mutated out and that of Greater
NOIDA
recorded.
Apparently,
the
possession of the land in dispute has been
taken and it is acquired land of the public
authority. The petitioner, somehow, has
continued in possession of the acquired
land as a downright encroacher and some
dilapidated structure is standing on a part of
the land. For reasons best known to the
Authorities of the Greater NOIDA, a report
at the instance of the petitioner has been
put in by the Greater NOIDA functionaries
that a 24-meter wide road for the industrial
development of Tech Zone-2 be shifted
away from Plot No. 6365, where it is
planned. The reason assigned in the report
dated July 6, 2016 is that a part of the said
land falls in the green belt and on some part
of it, two rooms and a verandah belonging
to the land holder are in existence. Besides
those structures, there are some trees and
the land holder has not taken compensation
for the land.

4. Learned counsel for the petitioner
virtually wants this Court to enforce the
internal report dated July 6, 2016 submitted by
some nondescript functionaries of the Greater
NOIDA, so that he may continue in his illegal
occupation of the acquired land of the said
Authority. In the opinion of this Court, the
petitioner cannot rid himself of a concluded
acquisition by acts such as continued illegal
occupation of the acquired land, which is
downright encroachment of public land or by
refraining from taking his due compensation
pursuant to the award made for the acquisition.
The land in dispute stands vested in the
Greater NOIDA, free from all encumbrance.
The first relief claimed by the petitioner is,
therefore, clearly without merit.

5. The other part of the relief seeks a
direction to the respondents to return the
land in dispute, in view of Section 17 of the
Uttar
Pradesh
Urban
Planning
and
Development Act, 1973 (for short 'the Act
of 1973'). Section 17 of the Act of 1973
reads :

"17. Compulsory acquisition of
land.- (1) If in the opinion of the State
Government any land is required for the
purpose of development or for any other
purpose,
under
this
Act,
the
State
Government may acquire such land under
the Provisions of the Land Acquisition
Act,1894 : Provided that, any person from
whom any land is so acquired may after the
expiration of a period of five years room
the date of such acquisition apply to the
State Government for restoration of that
land to him on the ground that the land has
not been utilized within the period for the
purpose for which it was acquired, and if
the State Government is satisfied to that
effect, it shall order restoration of the land
to him on re-payment of the charges which
were incurred in connection with the
acquisition together with interest at the rate
of twelve per cent per annum and such
development charges as if any may have
been incurred after acquisition. (2) Where
any land has been acquired by the State
Government, that Government may, after it
has taken possession of the land, transfer
the land to the Authority or any local
authority for the purpose, for which the
land has been acquired on payment by
Authority or the local Authority of the
compensation awarded under that Act and
of the charges incurred by the Government
in connection with the acquisition."

6. Looking to the provisions of
Section 17 of the Act of 1973, it is apparent
that there is no automatic lapse of
acquisition under Section 17. The proviso
to Section 17(1) of the Act gives a right to
606 INDIAN LAW REPORTS ALLAHABAD SERIES
an ousted land holder to apply to the State
Government for restoration of land, if it
remains unutilized by a Development
Authority after expiration of a period of
five years from the date of acquisition. The
right is to apply for restoration and not to
any kind of an automatic restoration that
the Court may enforce. It is for the
Government to decide if a person applies
for the enforcement of his rights under
Section 17(1), which the Government may
grant or refuse. Even if the Government
does consider it to be a case for the
restoration of land to the original land
holder, it is subject to repayment of charges
incurred in connection with acquisition,
together with interest at the rate of 12% per
annum, besides development charges, if
any, as have been incurred. The provision,
therefore, leaves no manner of doubt that
no mandamus can be issued to the
Government or the Greater NOIDA by the
mere lapse of a time period of five years
after acquisition, during which the land has
not been utilized. Here, the petitioner has
not pleaded a case that they have applied to
the State Government to seek restoration of
the land in dispute on the ground that it has
remained unutilized for a period of five
years or more from the date of acquisition.
Therefore, no right under the proviso to
Section 17(1) of the Act of 1973 is
crystallized in the petitioner's favour. That
apart, the land here has been earmarked for
the construction of a 24-meter wide road,
part of a scheme for industrial development
known as Tech Zone-2 by the Greater
NOIDA. The fact that some officials of the
Greater NOIDA have proposed shifting
something as important as a 24-meter road
to another site, does not mean that the land
is unutilized. Big projects take a long time
to complete and the fact that a particular
part of the project has not been constructed
upon until after lapse of five years does not
mean that the land is unutilized by the
Development
Authority,
within
the
meaning of proviso to Section 17(1) of the
Act of 1973. It is only that physical
development, part of a big planned
development, has not actually reached a
particular place.

7.

Similar
question
fell
for
consideration before a Division Bench of
this Court in Shyoraj Singh and another
v. State of U.P. and others, (2022) 1 All
LJ 546, where it was held :

"16 As far as the argument raised
by learned counsel for the petitioners for
invoking Section 17 of the 1973 Act is
concerned, the same is to be noticed and
rejected. A perusal of Section 17 of the
1973 Act shows that in case the acquired
land is not utilized for a period of five years
from the date of its acquisition, the land
owner can apply to the State for restoration
thereof. If the State Government is satisfied
that the land had not been utilized for a
period of five years for the purpose it was
acquired, it can order restoration thereof to
the landowners on re-payment of the
amount incurred for acquisition along with
interest thereon including the development
charges, if any.

17.In the case in hand, the
definite stand of the State on the record is
that immediately after acquisition of the
land, which was for development of an
industrial estate by the Corporation, the
possession thereof was taken and handed
over to the Corporation which had even
carved out the plots thereon and industrial
estate
stood
developed.
Number
of
industrial units are operating. A perusal of
notice dated August 10, 2021, issued to the
petitioners for removal of the unauthorized
construction also establishes this fact. It is
2 All. Sri Purushottam Agarwal & Anr. Vs. State of U.P. & Ors.
607
mentioned therein that the plot on which
the petitioners had raised unauthorized
construction is part of plot allotted to Smt.
Amarjeet Kaur way back on September 28,
2007, hence the claim that petitioners are
entitled to invoke Section 17 of the 1973
Act for restoration of the land to them on
the ground that the same has not been
utilized is totally misconceived and hence,
deserves to be rejected."

8. The handing over of acquired land
to the Development Authority for a planned
project, as big as a technical zone,
including the land in dispute, does not
mean that the land is unutilized because of
delays in the project implementation or
priorities.

9. In this view of the matter, no case
for interference is made out.

10. In the result, this petition fails and
is dismissed.

11.There shall be no order as to costs.
----------
(2023) 2 ILRA 607
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.01.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Writ-C No. 20121 of 2000

Sri Purushottam Agarwal & Anr.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Madhav Jain

Counsel for the Respondents:
C.S.C.

A. The Indian Stamp Act, 1889 - Section
47-A
(1)
-
Under-Valuation
of
the
instrument - U.P. Stamp Rules, 1942, Rule
341 (iii) (a)- minimum market value of
immovable property - According to Rule
341 (iii) (a) of 1942 Rules, where the
building is assessed to house tax by the
municipal board and it is occupied by the
owner or is wholly or partly, let out to the
tenant, then 25 times the actual or
assessed annual rental value, whichever is
higher, would be considered for payment
of stamp duty - in the year 1997, the U.P.
Stamp Rule 1942 were repealed (Para 16)

B. U.P. Stamp Rules, 1942 - Rule 341 (iii)
(a)- Property in question was purchased
on 17.04.1993 & the stamp duty was
payable
in
accordance
with
the
provisions of Rule 341 (iii) (a) of U.P.
Stamp Rule, 1942 - Property in question
was a building & was assessed for the
purposes of House Water etc - Nagar
Palika assessed Rs. 3,600/- to be the
annual rental value of the property in
question - On multiplying Rs.3,600/- into
25 times, the value of the property
becomes
Rs.
90,000
-
petitioner
purchased the property for Rs. 1,43,005
and on that amount, he paid the stamp
duty which was more than the market
value computed in accordance with the
Rule
341
(iii)
(a)
-
Sub
Registrar
imaginarily opined that the rent of the
room in question would not be less than
Rs.2,500/- per month - learned court
below
assuming
the
rental
value
Rs.2,500/- per month calculated that
there is deficiency in payment of stamp
duty and also imposed the penalty - For
determining the rate of rent to be
Rs.2,500/- the learned Sub Registrar did
not collect any DATA from the nearby
shop or vicinity - Impugned orders
quashed - respondents directed to refund
the recovered amount to the petitioners
alongwith the interest at the rate of six
percent per annum (Para 31)

Allowed. (E-5)