# Kharaiti Lal and others v. State of U.P. and others - **Citation:** (2004) 2 ILRA 431 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2004-05-18 - **Case number:** Civil Misc. Writ Petition No. 56783 of 2003 - **Bench:** M. Katju, K.N. Ojha - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kharaiti-lal-and-others-v-state-of-u-p-and-others-40394 - **Pages:** 4 ## Headnote Act- Ss. 4,6,17- Acquisition of land for public purpose- writ against- plea that no vesting since possession not taken- Held, once possession taken by Government on 7.8.2001, even if owner of land resumed possession, such act can not effect the consequences of vesting. Once possession of the land was taken by the Government even if thereafter the owner of the land entered upon the land and resumed possession such act does http://www.allahabadhighcourt.nic.in INDIAN LAW REPORTS ALLAHABAD SERIES [2004 432 not have the effect of obliterating the consequences of vesting. Para 12 In the present case it has been clearly stated by the respondents in paragraph 4,9,11,14,16 and 18 of the counter affidavit that the possession was taken over by the respondents on 7.8.2001. The possession memo which is Annexure CA 2 to the counter affidavit clearly supports the contention of the respondents. It is stated therein that the possession has been taken over by the respondent on 7.8.2001 and handed over to the Vice Chairman of Saharanpur Development Authority. In the counter affidavit filed by the respondents in relation to the application under Order 41 Rule 22 CPC the respondent no. 4 has annexed copies of the Khasra showing possession of the said respondent. In view of the aforesaid Supreme Court decisions we cannot accept the contention of the petitioner that possession was not taken by the respondents. Even if subsequently possession was retaken by the petitioner that will be immaterial. Para 13 Case law discussed: (1994) 5 SCC 686 1998 (89) RD 130 AIR 1994 All. 38 1996 AWC 924 JT 1996 (3) SC 60 JT 1995 (6) SC 248 AIR 1975 SC 1767 ## Text http://www.allahabadhighcourt.nic.in 2 All] Sri Vinod Kumar V. D.N. Agarwal,HJS Registrar (L) High Court, Allahabad & another 431 5. It must be remembered that the Registrar General, Registrar (Listing) etc. of this Court are working under tremendous pressure in view of the heavy volume of filing of cases in this Court. The Hon'ble Judges as well as the officers in the Registry are working under the tremendous pressure of the workload, and in this situation obviously sometimes some mistake occurs and sometimes some omission takes place. 6. In our opinion directing the Registrar (Listing) of this Court to pay exemplary cost of Rs.500/- was, with great respect to the learned Single Judge, unwarranted and uncalled for, particularly when these adverse remarks was passed without giving any opportunity of hearing. The rules of natural justice require that before adverse remarks made the Court should give opportunity of hearing to the person, but no such opportunity appears to have been given to the Registrar (Listing) before passing the impugned order dated 18.5.2004. 7. In view of the above this appeal is allowed. Impugned order dated 18.5.2004 is set-aside except the direction that the earlier interim order shall continue. However, although we have allowed this appeal and set-aside the order dated 18.5.2004 we fully share the concern of the learned Single Judge that the documents filed in this Court are often not placed on record. The result is that very often when cases are taken up for hearing it is found that some affidavit or application is not on record, although learned counsel states that he had filed it in the Registry. This is happening in may cases, and a large number of cases have to be adjourned because some important document is not on record, although it was filed, and this affects the smooth functioning of the Court. The Registrar General is therefore directed to prepare a scheme so that in future all documents filed in the Registry are placed as soon as possible thereafter on the record so that the functioning of the Court may not suffer. This direction however, will not be treated as any adverse remark against the Registrar General or the Registrar (Listing) of this Court. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD: 14.5.2004 BEFORE THE HON'BLE M. KATJU, J. THE HON'BLE K.N. OJHA, J. Civil Misc. Writ Petition No. 56783 of 2003 Kharaiti Lal and others ...Petitioners Versus State of U.P. and others ...Respondents Counsel for the Petitioners: Sri Ajit Kumar Counsel for the Respondents: Sri Subodh Kumar Land Acquisition Act- Ss. 4,6,17- Acquisition of land for public purpose- writ against- plea that no vesting since possession not taken- Held, once possession taken by Government on 7.8.2001, even if owner of land resumed possession, such act can not effect the consequences of vesting. Once possession of the land was taken by the Government even if thereafter the owner of the land entered upon the land and resumed possession such act does http://www.allahabadhighcourt.nic.in INDIAN LAW REPORTS ALLAHABAD SERIES [2004 432 not have the effect of obliterating the consequences of vesting. Para 12 In the present case it has been clearly stated by the respondents in paragraph 4,9,11,14,16 and 18 of the counter affidavit that the possession was taken over by the respondents on 7.8.2001. The possession memo which is Annexure CA 2 to the counter affidavit clearly supports the contention of the respondents. It is stated therein that the possession has been taken over by the respondent on 7.8.2001 and handed over to the Vice Chairman of Saharanpur Development Authority. In the counter affidavit filed by the respondents in relation to the application under Order 41 Rule 22 CPC the respondent no. 4 has annexed copies of the Khasra showing possession of the said respondent. In view of the aforesaid Supreme Court decisions we cannot accept the contention of the petitioner that possession was not taken by the respondents. Even if subsequently possession was retaken by the petitioner that will be immaterial. Para 13 Case law discussed: (1994) 5 SCC 686 1998 (89) RD 130 AIR 1994 All. 38 1996 AWC 924 JT 1996 (3) SC 60 JT 1995 (6) SC 248 AIR 1975 SC 1767 (Delivered by Hon'ble M. Katju, J.) 1. By means of this writ petition the petitioner has challenged the impugned award dated 30.8.2003 Annexure 1 to the writ petition under Section 11 of the Land Acquisition Act as well as notification dated 17.5.2000 under section 4/17 and notification dated 3.5.2001 under Section 6 Annexure 3 to the writ petition. 2. The petitioners have alleged that they are owners of the land whose details are given in Annexure 4 to the writ petition. 3. A perusal of the notification under Section 4/17 copy of which is Annexure 2 to the writ petition shows that the land in question was sought to be acquired for the planed development for Saharanpur Development Authority for building a Transport Nagar. 4. So far as the purpose of the acquisition mentioned in the notification under Section 4 and 6 are concerned this is clearly for public purpose and it has to be held that there is urgency in the matter since acquisition for transport purpose must be held as a matter of urgency in view of the growing traffic problem. 5. In Amar Singh vs. State of U.P., writ petition no. 29031 of 2003 decided on 11.7.2003 a Division Bench of this Court held following several Supreme Court decisions that the question of urgency is for the subjective satisfaction of the Government and this Court cannot go into the matter. In that decision the matter has been discussed in great detail. Hence we reject the challenge to the notification under Section 4 and 6 of the Land Acquisition Act. 6. The learned counsel for the petitioner has then submitted that in view of Section 11-A of the Act the acquisition scheme has lapsed because the possession has not been taken over from the petitioner. In this connection it has been stated in paragraph 4 of the counter affidavit filed on behalf of the respondent no. 4, Saharanpur Development Authority that the possession of the land was taken over on 7.8.2001. In paragraph 4 it is also stated that the publication of the http://www.allahabadhighcourt.nic.in 2 All] Kharaiti Lal and others V. State of U.P. and others 433 notification under Section 6 was done on 14.5.2001 and in two newspapers on 17.5.2001. Notices was issued on 24.5.2001 inviting objection under Section 9. The respondent no. 4 has already deposited a sum of Rs. 1,88,68,763.00 and has completed all the necessary requirements under the Acquisition Act. 7. It is alleged in paragraph 6 of the counter affidavit that the work for development/establishment of the Transport Nagar as per Master Plan was in progress but in the meantime the interim order dated 13.1.2004 was passed and hence the scheme was delayed. As per the scheme regarding establishment of Transport Nagar the registration work has been completed on 31.8.2001 and thereafter about 412 registration of plots/shops etc. Copy of the booklet, master plan and chart of registration is Annexure CA I. In paragraph 7 of the counter affidavit it is stated that none of the petitioners are having their names in the revenue records nor are they in possession. In paragraph 9 of the counter affidavit it is stated that the answering respondent is already in possession of the land w.e.f. 7.8.2001 and hence Section 11-A has no application. There was urgency in the matter and the acquisition was for public purpose. The Transport Nagar is duly mentioned and approved in the master plan. The answering respondent is legally and factually bound to provide Transport Nagar as per the Master Plan. True copy of the possession certificate is Annexure CA 2 to the counter affidavit which shows that the possession was taken over by the Saharanpur Development Authority on 7.8.2001. In paragraph 11 of the counter affidavit it is stated that the mutation has been done in favour of the answering respondents vide annexures CA 3 and 4 to the counter affidavit. 8. In paragraph 12 of the counter affidavit it is stated that in a number of other district Headquarters where there are development authorities similar Transport Nagars were created which is for the benefit of the public at large. 9. In paragraph 13 of the counter affidavit it is stated that as per the G.O. dated 17.10.2001 the earlier Master Plan is enforceable till further orders or till it is not changed, modified or cancelled by a new Master Plan. The earlier Master Plan is still operative and has not been cancelled. True copy of the G.O. dated 17.10.2001 is Annexure CA 5. In paragraph 14 it is stated that Special Land Acquisition Officer has wrongly stated that the petitioners are in possession. The same SLAO has already said that the possession has already been given to the answering respondents on 7.8.2001. 10. We have also perused the rejoinder affidavit. On the facts of the case we find no merit in this petition. Learned counsel for the petitioner has relied on the decision of the Supreme Court in State of U.P. vs. Rajiv Gupta and another, (1994) 5 SCC 686 and the decision of this Court in Jeevan Bima Karmchari Sahkari Awas Samiti Ltd. vs. State of U.P., 1998 (89) RD 130, Ram Jiyawan vs. State of U.P., AIR 1994 Allahabad 38, and Smt. Prabha Wati Kunwar and another vs. State of U.P., 1996 AWC 924. He has urged that the possession was never taken till date and http://www.allahabadhighcourt.nic.in INDIAN LAW REPORTS ALLAHABAD SERIES [2004 434 hence the property did not vest in the state of U.P. or in respondent no. 4. He has relied on Khasra entries and irrigation slips which have been annexed with the rejoinder affidavit. He has also submitted that the Master Plan was not approved by the State Government. 11. In Balmokand vs. State of Punjab JT 1996 (3) SC 60 it was held by the Supreme Court that the normal mode of taking possession and giving delivery to the beneficiaries in the accepted mode of taking possession of the land. Subsequent thereto the retention of possession would tantamount only to illegal or unlawful possession. Hence merely because the appellant subsequent to 7.8.2001 retained actual possession of the acquired land the acquisition cannot be said to be bad in law. 12. An Awadh Bihari Yadav vs. State of Bihar, JT 1995 (6) SC 248 (vice paragraph 11) following the earlier decision in Balwant Narayan Bhagde vs. M.D. Bhagwat and others, AIR 1975 SC 1767 it was held that once possession of the land was taken by the Government even if thereafter the owner of the land entered upon the land and resumed possession such act does not have the effect of obliterating the consequences of vesting. 13. In the present case it has been clearly stated by the respondents in paragraph 4,9,11,14,16 and 18 of the counter affidavit that the possession was taken over by the respondents on 7.8.2001. The possession memo which is Annexure CA 2 to the counter affidavit clearly supports the contention of the respondents. It is stated therein that the possession has been taken over by the respondent on 7.8.2001 and handed over to the Vice Chairman of Saharanpur Development Authority. In the counter affidavit filed by the respondents in relation to the application under Order 41 Rule 22 CPC the respondent no. 4 has annexed copies of the Khasra showing possession of the said respondent. In view of the aforesaid Supreme Court decisions we cannot accept the contention of the petitioner that possession was not taken by the respondents. Even if subsequently possession was retaken by the petitioner that will be immaterial. 14. In fact due to the pendency of this petition the entire scheme for setting up a Transport Nagar has been delayed and this is not in the public interest. 15. The petitioner will get compensation for the land which has been acquired (including constructions or trees thereon) as per the provision of the Land Acquisition Act. The petition is dismissed. --------- APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 23.4.2004 BEFORE THE HON'BLE M. KATJU, J. THE HON'BLE R.S. TRIPATHI, J. Special Appeal No. 323 of 2004 Ram Dhyan Singh ...Petitioner Versus The State of U.P. & others ...Respondents Counsel for the Appellant: Sri Ramendra Asthana Counsel for the Respondents: S.C.