# Nasir Ali & Ors v. State of U.P. & Ors

- **Citation:** (2023) 3 ILRA 323
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-29
- **Case number:** Writ C No. 19100 of 2022
- **Bench:** Rajesh Bindal, C.J. J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nasir-ali-ors-v-state-of-u-p-ors-49225
- **Pages:** 10

## Headnote

A. Acquisition Law - Land Acquisition Act,
1894 - Sections. 4(1), 6(1) & 17(1) -
Sale-deed executed after issuance of
notification u/s 4(1) of the Act - How far
title is conferred to the subsequent
purchaser
-
Relief
sought
against
demolition - Permissibility - Held, there is
hardly any cavil about the Law that any
sale deed of a land executed by its owner
after the issue of a notification under
Section 4(1) of the Act of 1894 is void. It
confers no title on the transferee. At best,
it may afterwards confer on the transferee
a right to stake his claim to compensation
in the owner's stead - In the garb of relief
sought
against
demolition
and
dispossession,
otherwise
than
in
accordance with Law, read together with
the pleas raised in the writ petition, what
the petitioners intend to do, is to efface
the acquisition that has attained finality
and its validity affirmed right up to the
Supreme Court. (Para 12 and 16)

B. Acquisition Law - Land Acquisition
Act, 1894 - Sections 4(1), 6(1) & 17(1)
-
Claim
of
being
in
settled
and
continuous possession - Effect - Held, in
case of the land acquisition by the St.,
where after the issue of notifications
under Section 4(1) of the Act of 1894
read
with
Section
17(1)
and
a
declaration u/S 6(1) r/w S. 17(4), land
has vested u/S 17(2) in the St., free
from all encumbrances, every person in
occupation of such land is a trespasser,
liable to ejectment by the St.. (Para 18)

Writ petition dismissed . (E-1)

List of Cases cited :-

## Text

3 All. Nasir Ali & Ors. Vs. State of U.P. & Ors.
323

36. The Full Court was of the view that by
making an application for grant of freehold
right, petitioner did not acquire vested right. The
Government policy applicable on the date of
decision of the Government would apply while
disposing off the applications of the petitioners
for freehold right.

37. Accordingly, in view of the law laid
down in Anand Kumar Sharma (supra), the
application submitted by the petitioners for
freehold rights, was entitled to be considered in
accordance with the Government policy as was
in existence on the date of passing of the order
on the application. The State respondents were
justified in disposing of the application
submitted by the petitioners as per the
Government policy mandated vide Government
Order dated 14 December, 2004.

38. It is noted in the impugned order that
the District Supply Officer had demanded the
premises to continue the office in the same
building, after removing the dilapidated
structure and constructing a new building,
thereupon. It is informed that budget was also
sanctioned for the construction but due to
pendency of the present writ petition, the same
could not be executed. The office was shifted to
another rented accommodation.

39. The plea of the petitioners that
petitioners
have
been
discriminated,
is
unfounded. It is not being disputed by the
learned counsel for the petitioners that
petitioners have been granted freehold right on
2084 sq. meters of the same Nazul plot, like
being the case of other occupants of the plot.
Further, parity claimed by the petitioners with
lease holder of Nazul plot No. PP Civil Station,
Allahabad, contending that since they were
granted freehold rights, petitioners being
similarly placed should also be granted freehold
right. The claim based on parity lacks merit. On
Nazul plot No. 10, Civil Station, a Government
Office was in occupation of the building,
whereas, there is no such building in the
possession and occupation of the Government
department on Nazul plot No. PP Civil Station,
Allahabad. The Government Order dated 14
October, 2004, would govern all such Nazul
land over which Government Office /
Department is in occupation. That is not the
case with Nazul plot No. PP Civil Station,
Allahabad. In any case, petitioners are not the
lease holder / occupant of Nazul plot No. PP
Civil Station, Allahabad, therefore, it is not open
for the petitioners to submit that they have been
discriminated against after allottees of Nazul
plot No. PP Civil Station, Allahabad. The ratio
of Sangam Upnivashan Avas Evam Nirman
Sahkari Samiti Ltd. (supra), would not apply
in the case of the petitioners.

40. The learned counsel for the petitioners
failed to point out any illegality, irregularity or
perversity in the impugned order.

41. The writ petition being devoid of
merit, is accordingly, dismissed.

42. The State respondent to proceed with
the construction of the Government office in
accordance with law.
----------
(2023) 3 ILRA 323
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.07.2022

BEFORE

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

Writ C No. 19100 of 2022

Nasir Ali & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
324 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Surya Prakash Dubey, Sri Ved Prakash
Dubey.

Counsel for the Respondents:
Sri Hare Ram (Standing Counsel), Sri
Dharmendra Singh Chauhan

A. Acquisition Law - Land Acquisition Act,
1894 - Sections. 4(1), 6(1) & 17(1) -
Sale-deed executed after issuance of
notification u/s 4(1) of the Act - How far
title is conferred to the subsequent
purchaser
-
Relief
sought
against
demolition - Permissibility - Held, there is
hardly any cavil about the Law that any
sale deed of a land executed by its owner
after the issue of a notification under
Section 4(1) of the Act of 1894 is void. It
confers no title on the transferee. At best,
it may afterwards confer on the transferee
a right to stake his claim to compensation
in the owner's stead - In the garb of relief
sought
against
demolition
and
dispossession,
otherwise
than
in
accordance with Law, read together with
the pleas raised in the writ petition, what
the petitioners intend to do, is to efface
the acquisition that has attained finality
and its validity affirmed right up to the
Supreme Court. (Para 12 and 16)

B. Acquisition Law - Land Acquisition
Act, 1894 - Sections 4(1), 6(1) & 17(1)
-
Claim
of
being
in
settled
and
continuous possession - Effect - Held, in
case of the land acquisition by the St.,
where after the issue of notifications
under Section 4(1) of the Act of 1894
read
with
Section
17(1)
and
a
declaration u/S 6(1) r/w S. 17(4), land
has vested u/S 17(2) in the St., free
from all encumbrances, every person in
occupation of such land is a trespasser,
liable to ejectment by the St.. (Para 18)

Writ petition dismissed . (E-1)

List of Cases cited :-

1. Meera Sahni Vs Lieutenant Governor of Delhi
& ors.; (2008) 9 SCC 177

2. U.P. Jal Nigam, Lucknow & anr. Vs Kalra
Properties (P) Ltd. & ors.; (1996) 3 SCC 124

3. Shiv Kumar & anr. Vs U.O.I. & ors.; (2019)
10 SCC 229

4. Indore Development Authority Vs Manoharlal
& ors.; AIR 2020 SC 1496

5. Shyoraj Singh & anr. Vs St. of U.P. & ors.;
2021 SCC OnLine All 873

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

1. The three petitioners have come
together and instituted the present writ
petition,
because
their
distinct
and
individual causes of action are not
different. The causes of action of the
petitioners involve common question of
facts and law, prompting them to combine
against the same set of respondents, against
whom they want relief. In substance, the
petitioners' prayer is two fold: firstly, that
the respondents be commanded by a
mandamus not to demolish the petitioners'
houses, standing over their respective plots
of land until consideration of their case by
the respondents, canvassed through a
representation
dated
31.05.2022;
and
secondly,
an
order
restraining
the
respondents not to interfere with the
petitioners' peaceful possession over their
respective
plots
of
land,
except
in
accordance with law.

2. The facts giving rise to this petition
are these: Nasir Ali, the first petitioner is a
resident of Village Harungala, Post R.K.
University, District Bareilly and currently
resides at Village Dohariya, Tehsil and
District Bareilly. The second petitioner,
Smt. Hasina is a resident of Village
Chandpur Bichpuri, Tehsil and District
3 All. Nasir Ali & Ors. Vs. State of U.P. & Ors.
325
Bareilly and presently resides at Village
Dohariya, Tehsil and District Bareilly. The
third petitioner, Smt. Taslim Jahan is a
resident of Jagatpur, Nai Basti, Talab,
Bareilly and presently also resides at
Village Dohariya, Tehsil and District
Bareilly. The first petitioner purchased a
plot measuring 83.61 square meters,
located in Village Dohariya from one
Anwar Miyan son of Mohd. Taqi Painter
through a registered sale deed dated
07.05.2018. The said plot is located in
Khasra No. 58 of the village. It was
purchased by Anwar Miyan from the
original recorded owner of the land, Naresh
son of Gendan Lal through a registered sale
deed
dated
18.01.2004.
The
second
petitioner, Smt. Hasina purchased a plot
measuring 167.22 square meters, also part
of Khasra No. 58 of Village Dohariya from
Naresh son of Gendan Lal, through a
registered sale deed dated 17.11.2011. The
third
petitioner,
Smt.
Taslim
Jahan
purchased a plot measuring 83.61 square
meters, part of Khasra No. 60 of Village
Dohariya from Riyasat Ali and Anis
Ahmad, sons of Mohd. Bachchan, through
a registered sale deed dated 30.07.2019.
Riyasat Ali and Anis Ahmad, vendors of
petitioner No. 3, had in turn purchased the
land from one Lal Bahadur through a
registered sale deed dated 11.10.2010. It is
asserted that the name of Lal Bahadur
continues to be recorded in the revenue
records, relating to Khasra No. 60.

3. It is the petitioners' case that they
are
in
continuous
and
uninterrupted
possession
of
their
respective
plots,
whereon they have raised their residential
houses in the years 2018, 2011 and 2019,
respectively. The petitioners live in the said
houses along with their families. It is also
asserted that the name of Naresh, son of
Gendan Lal, the original owner of Khasra
No. 58, whose rights ultimately petitioners
Nos. 1 and 2 had purchased, continues to
be recorded in the revenue records. The
land comprising the plots of each of the
three petitioners, two located in Khasra No.
58 and one in Khasra No. 60 of Village
Dohariya, Tehsil and District Bareilly, shall
hereinafter be collectively referred to as
'the land in dispute'.

4. It is common ground between
parties that a notification under Section
4(1) read with Section 17(1) of the Land
Acquisition Act, 1894 (for short, 'the Act of
1894') was issued on 3rd June, 2004. The
aforesaid notification under Section 4(1)
was followed by a declaration under
Section 6(1) read with Section 17(4) of the
Act of 1894, which came to be issued by
the State Government on 4th July, 2005.
The two notifications aforesaid were issued
by the State Government in order to acquire
land for the purpose of development of a
residential colony, going by the name Ram
Ganga Nagar Awasiya Yojna, Bareilly. The
aforesaid project was to be executed by the
Bareilly Development Authority, Bareilly
(for short, 'the B.D.A.'). It is to be noticed
here that vide the two notifications issued
under the Act of 1894, a total area of
259.361597 hectares of lands in the
Villages of Ahirola, Chandpur Bichpuri,
Manohar alias Ramnagar and Dohariya
came to be acquired by the State
Government
for
the
purpose
of
development by the B.D.A. It is also not in
issue between parties that the two land
acquisition notifications under reference
were challenged before this Court through
a number of writ petitions, which were
tagged and heard together with Writ-C No.
17542 of 2010, Sharawan Kumar and
others v. State of U.P. and others as the
leading case. The said batch of writ
petitions was heard and dismissed vide
326 INDIAN LAW REPORTS ALLAHABAD SERIES
judgment and order dated 06.09.2016
passed by this Court. This Court upheld the
acquisition. The judgment of this Court
dated 06.09.2016, above referred, was
challenged by means of a petition for
Special Leave to Appeal being SLP (Civil)
No. 25147 of 2016, Piyush Kumar Agarwal
and others v. State of U.P. and others. The
Special Leave Petition was also dismissed
by the Supreme Court vide order dated
09.01.2017. The parties, therefore, appear
to be ad idem that the acquisition of the
land in dispute was upheld up to the
Supreme Court.

5. The Special Land Acquisition
Officer
(Joint
Organization),
Bareilly
proceeded to make an award in respect of
the acquired land at Village Dohariya,
Tehsil and District Bareilly. It is the
petitioners' case that possession of the land
in dispute has not been taken from any of
them nor any compensation paid. The
residential houses still stand on the land in
dispute and the petitioners are living there
peaceably.
The
petitioners
also
hold
electricity connections in their names and
pay water tax to the Municipal Authorities.
The petitioners say that on 15.03.2022, and
thereafter
in
quick
successions,
on
20.04.2022 and 26.04.2022, some officials
of the B.D.A. came over to their homes and
harassed the petitioners with the intention
of extorting money. They threatened the
petitioners with illegal demolition of their
houses. The petitioners were told that their
houses would be demolished by the B.D.A.

6. It is in the aforesaid circumstances
that the present writ petition has been
instituted.

7. Heard Mr. Surya Prakash Dubey,
learned Counsel for the petitioners, Mr.
Hare Ram, learned Standing Counsel
appearing on behalf of respondent Nos. 1
and 2 and Mr. Dharmendra Singh Chauhan,
learned Counsel appearing on behalf of
respondent Nos. 3 and 4.

8. It is submitted by the learned
Counsel for the petitioners that the B.D.A.
and its officials are acting in a most
arbitrary and illegal manner. They are out
to demolish the petitioners' houses without
recourse to legal proceedings for the
purpose. It is emphasized that the land was
acquired for the Ram Ganga Nagar
Awasiya Yojna, Bareilly, and at present the
petitioners' houses stand over the land in
dispute, including its vicinity. It is urged
that the purpose of acquisition was to
provide residential apartments and not to
destroy preoccupied houses. It is suggested
that in case the constructions raised are not
found
in
accordance
with
law,
the
petitioners'
case
be
considered
for
compounding.
It
is
also
said
that
compensation, which has not been paid,
may also be directed to be adjusted against
the
compounding
charges
for
the
constructions.
It
is
urged
that
the
petitioners' constructions, that may not be
found to be in violation of the law, may be
exempted from acquisition on the ground
that the residential houses already exist
there and the purpose of the acquisition was
ultimately to provide housing. It is also
pointed out that the purpose of acquisition
has failed since the proposed residential
scheme has not at all been implemented.
The development, if any, has taken place in
chunks with no uniformity.

9. It is argued that the B.D.A. have no
business
under
the
circumstances
to
demolish the petitioners' houses and
forcibly take possession of their land,
which they have lawfully purchased
through registered sale deeds. It is also
3 All. Nasir Ali & Ors. Vs. State of U.P. & Ors.
327
urged that though the State Government
had acquired the land for the purpose of
development as a residential colony, the
B.D.A. is now commercializing the scheme
and constructing schools, shopping malls,
parks and allotting plots for industries, after
illegally taking possession of properties of
poor villagers and ordinary men, like the
petitioners. It is emphasized that the land in
dispute with the individual plots of the
three petitioners are very small, whereon
their
humble
dwelling
units
exist.
Demolishing those dwelling units and
taking forcible possession, amounts to
depriving the petitioners of their right to
roof and shelter, besides an infraction of
their constitutional right under Article 300A of the Constitution.

10. The learned Standing Counsel
appearing for the State and Mr. Chauhan,
learned Counsel appearing for the B.D.A.
have strongly opposed the motion to admit
this petition to hearing. They submit in one
voice that this petition is misconceived. It
is argued that the land in dispute is acquired
land of the B.D.A., where the petitioners
are rank-trespassers and encroachers. It is
within the respondents' right to expel them
and abate the encroachment.

11. We have carefully considered the
submissions made at the Bar and perused
the record.

12. We must at once say that the
submissions advanced by the petitioners are
only to be noticed and rejected. Each of the
three
petitioners
or
their
immediate
predecessors-in-title have secured the land
in dispute through registered sale deeds, all
of which were executed after 3rd June,
2004, that is to say, the date on which the
notification under Section 4(1) read with
Section 17(1) of the Act of 1894 was
issued. There is hardly any cavil about the
law that any sale deed of a land executed
by its owner after the issue of a notification
under Section 4(1) of the Act of 1894 is
void. It confers no title on the transferee. At
best, it may afterwards confer on the
transferee a right to stake his claim to
compensation in the owner's stead. No
interest whatsoever is created in the
transferee by a conveyance executed after
the issue of a notification under Section
4(1) of the Act of 1894.

13. Here, what this Court finds is that
the notification under Section 4(1) of the
Act of 1894 was issued invoking the
provisions of Section 17(1) and the
declaration under Section 6(1) invoked
Section 17(4). The two notifications
aforesaid were issued on 3rd June, 2004
and 4th July, 2005. Since Section 17(1) was
invoked, it is evident that the inquiry under
Section 5-A of the Act of 1894 was
dispensed with and immediate possession
was taken on ground of urgency. The land
in dispute along with all those covered by
the notification and the declaration under
Sections 4(1) and 6(1), respectively, would
stand vested in the State, free from all
encumbrances. The sale deeds, therefore,
that the petitioners claim to confer title on
them, are all void. The petitioners' act in
raising constructions over the land in
dispute, which is acquired land of the State,
entrusted to the B.D.A. for development, is
a naive and reckless act. The petitioners
cannot capitalize on their own wrong by
invoking equities to create title, where
nothing but a void transaction stairs them in
the face.

14. In regard to the validity of sale
deeds executed after issue of a notification
under Section 4(1) of the Act of 1894, that
is followed by a declaration under Section
328 INDIAN LAW REPORTS ALLAHABAD SERIES
6(1), reference may be made to the decision
of the Supreme Court in Meera Sahni v.
Lieutenant Governor of Delhi and
others, (2008) 9 SCC 177. In Meera
Sahni (supra), it has been held:

17. When a piece of land is sought
to be acquired, a notification under Section 4
of the Land Acquisition Act is required to be
issued by the State Government strictly in
accordance with law. The said notification is
also required to be followed by a declaration
to be made under Section 6 of the Land
Acquisition Act and with the issuance of such
a notification any encumbrance created by
the owner, or any transfer made after the
issuance of such a notification would be
deemed to be void and would not be binding
on the Government. A number of decisions of
this Court have recognised the aforesaid
proposition of law wherein it was held that
subsequent
purchaser
cannot
challenge
acquisition proceedings and also the validity
of the notification or the irregularity in taking
possession of the land after the declaration
under Section 6 of the Act.

18. In U.P. Jal Nigam v. Kalra
Properties (P) Ltd. [(1996) 3 SCC 124] it was
stated by this Court that : (SCC p. 126, para 3)

"3. ... Having regard to the facts of
this case, we were not inclined to further
adjourn the case nor to remit the case for
fresh consideration by the High Court. It is
well-settled law that after the notification
under Section 4(1) is published in the gazette
any encumbrance created by the owner does
not bind the Government and the purchaser
does not acquire any title to the property."

19. In Sneh Prabha v. State of U.P.
[(1996) 7 SCC 426] it is stated as under :
(SCC p. 430, para 5)

"5. ... It is settled law that any
person
who
purchases
land
after
publication of the notification under
Section 4(1), does so at his/her own peril.
The object of publication of the notification
under Section 4(1) is notice to everyone
that the land is needed or is likely to be
needed
for
public
purpose
and
the
acquisition proceedings point out an
impediment to anyone to encumber the
land acquired thereunder. It authorises the
designated officer to enter upon the land to
do preliminaries, etc. Therefore, any
alienation of the land after the publication
of the notification under Section 4(1) does
not bind the Government or the beneficiary
under the acquisition. On taking possession
of the land, all rights, title and interests in
land stand vested in the State, under
Section 16 of the Act, free from all
encumbrances and thereby absolute title in
the land is acquired thereunder."

20. The said proposition of law was
also reiterated in Ajay Krishan Shinghal v.
Union of India [(1996) 10 SCC 721] and
Star Wire (India) Ltd. v. State of Haryana
[(1996) 11 SCC 698].

15. Though, there is already a
reference to it in the decision of the
Supreme Court in Meera Sahni (supra),
the locus classicus on the point is the
enunciation of the law in U.P. Jal Nigam,
Lucknow through its Chairman and
another v. Kalra Properties (P) Ltd.,
Lucknow and others, (1996) 3 SCC 124,
where it has been held:

3. ... It is settled law that after the
notification under Section 4(1) is published
in the Gazette any encumbrance created by
the owner does not bind the Government
and the purchaser does not acquire any title
to the property. In this case, notification
under Section 4(1) was published on 24-31973, possession of the land admittedly
3 All. Nasir Ali & Ors. Vs. State of U.P. & Ors.
329
was taken on 5-7-1973 and pumping station
house
was
constructed.
No
doubt,
declaration under Section 6 was published
later on 8-7-1973. Admittedly power under
Section 17(4) was exercised dispensing
with the enquiry under Section 5-A and on
service of the notice under Section 9
possession was taken, since urgency was
acute, viz., pumping station house was to
be constructed to drain out flood water.
Consequently, the land stood vested in the
State under Section 17(2) free from all
encumbrances. It is further settled law that
once possession is taken, by operation of
Section 17(2), the land vests in the State
free from all encumbrances unless a
notification
under
Section
48(1)
is
published in the Gazette withdrawing from
the acquisition. Section 11-A, as amended
by Act 68 of 1984, therefore, does not
apply and the acquisition does not lapse.
The notification under Section 4(1) and the
declaration under Section 6, therefore,
remain valid. There is no other provision
under the Act to have the acquired land
divested,
unless,
as
stated
earlier,
notification under Section 48(1) was
published and the possession is surrendered
pursuant thereto. That apart, since M/s
Kalra Properties, respondent had purchased
the land after the notification under Section
4(1) was published, its sale is void against
the State and it acquired no right, title or
interest in the land. Consequently, it is
settled law that it cannot challenge the
validity of the notification or the regularity
in taking possession of the land before
publication of the declaration under Section
6 was published.

16. This Court finds that in the garb
of relief sought against demolition and
dispossession, otherwise than in accordance
with law, read together with the pleas raised
in the writ petition, what the petitioners
intend to do, is to efface the acquisition that
has attained finality and its validity
affirmed right up to the Supreme Court. For
one, the petitioners cannot be permitted to
do in a direct and insidious manner what
they cannot achieve directly under the law.

17. That apart, the petitioners being
purchasers subsequent to the issue of a
notification under Section 4(1) of the Act of
1894, followed by a declaration under
Section 6(1), where land has vested in the
State under Section 17(2), free from all
encumbrances. They cannot be permitted to
question that acquisition in an indirect
manner, as they are not permitted to
challenge it directly, being purchasers
subsequent to the issue of Section 4(1)
notification. About the right of purchasers,
who take under conveyances after the issue
of a notification under Section 4(1) of the
Act of 1894, the Supreme Court repelled
the existence of any such rights in
subsequent purchasers in Shiv Kumar and
another v. Union of India and others,
(2019) 10 SCC 229, reiterating a steady
line of precedent. Shiv Kumar (supra) was
also a case where an unauthorized colony
had come up and its members, who were
the petitioners, claimed that they were in
actual physical possession of the subject
land despite passing of the award. The
Government of N.C.T. had provisionally
regularized the unauthorized colony, after
the Right to Fair Compensation and
Transparency
in
Land
Acquisition,
Rehabilitation and Resettlement Act, 2013
came into force w.e.f. 01.01.2014. The
settlers in the unauthorized colony claimed
that since the State or their Authorities
never took actual physical possession, the
acquisition had lapsed. It was in the context
of the aforesaid facts that in Shiv Kumar,
it was held by their Lordships of the
Supreme Court:
330 INDIAN LAW REPORTS ALLAHABAD SERIES

8. It has been laid down that the
purchasers on any ground whatsoever
cannot question proceedings for taking
possession. A purchaser after Section 4
notification does not acquire any right in
the land as the sale is ab initio void and has
no right to claim land under the policy.

18. In aid of the second relief, which
the petitioners claim, it is argued that the
petitioners are in settled possession and
have constructed residential houses, where
their
families
live.
The
respondent
Authorities, including the B.D.A., are
threatening
them
with
forcible
dispossession, otherwise than in accordance
with law. It is argued that even a trespasser
in
settled
possession
cannot
be
dispossessed
or
evicted,
except
in
accordance with law. This injunction of the
law, in the submission of the learned
Counsel for the petitioners, applies in a
case where the trespasser is sought to be
dispossessed by the true owner as well. For
a
general
proposition
of
law,
the
submission may be sound, but in case of
the land acquisition by the State, where
after the issue of notifications under
Section 4(1) of the Act of 1894 read with
Section 17(1) and a declaration under
Section 6(1) read with Section 17(4), land
has vested under Section 17(2) in the State,
free from all encumbrances, every person
in occupation of such land is a trespasser,
liable to ejectment by the State. The
aforesaid principle has been authoritatively
laid down by the Constitution Bench of the
Supreme Court in Indore Development
Authority v. Manoharlal and others, AIR
2020 SC 1496. A Division Bench of this
Court in Shyoraj Singh and another v.
State of U.P. and others, 2021 SCC
OnLine All 873, following the principle
laid down by the Supreme Court in Indore
Development Authority (supra) has held:

"20. The issue as to what is meant
by "possession of the land by the State after
its acquisition" has also been considered by
Constitution Bench of Hon'ble Supreme
Court in Indore Development Authority
Vs. Manoharlal and others AIR 2020 SC
1496. It is opined therein that after the
acquisition of land and passing of award,
the land vests in the State free from all
encumbrances. The vesting of land with the
State is with possession. Any person
retaining the possession thereafter has to be
treated trespasser. When large chunk of
land is acquired, the State is not supposed
to put some person or police force to retain
the possession and start cultivating on the
land till it is utilized. The Government is
also not supposed to start residing or
physically occupying the same once
process of the acquisition is complete. If
after the process of acquisition is complete
and land vest in the State free from all
encumbrances with possession, any person
retaining the land or any re-entry made by
any person is nothing else but trespass on
the State land. Relevant paragraphs 244,
245 and 256 are extracted below:

"244. Section 16 of the Act of
1894 provided that possession of land may
be taken by the State Government after
passing of an award and thereupon land
vest free from all encumbrances in the State
Government. Similar are the provisions
made in the case of urgency in Section
17(1). The word "possession" has been
used in the Act of 1894, whereas in Section
24(2) of Act of 2013, the expression
"physical possession" is used. It is
submitted that drawing of panchnama for
taking over the possession is not enough
when
the
actual
physical
possession
remained with the landowner and Section
24(2) requires actual physical possession to
be taken, not the possession in any other
form. When the State has acquired the land
3 All. Nasir Ali & Ors. Vs. State of U.P. & Ors.
331
and award has been passed, land vests in
the State Government free from all
encumbrances. The act of vesting of the
land in the State is with possession, any
person retaining the possession, thereafter,
has to be treated as trespasser and has no
right to possess the land which vests in the
State free from all encumbrances.

245. The question which arises
whether there is any difference between
taking possession under the Act of 1894 and
the expression "physical possession" used in
Section 24(2). As a matter of fact, what was
contemplated under the Act of 1894, by
taking the possession meant only physical
possession of the land. Taking over the
possession under the Act of 2013 always
amounted to taking over physical possession
of the land. When the State Government
acquires land and drawns up a memorandum
of taking possession, that amounts to taking
the physical possession of the land. On the
large chunk of property or otherwise which is
acquired, the Government is not supposed to
put some other person or the police force in
possession to retain it and start cultivating it
till the land is used by it for the purpose for
which it has been acquired. The Government
is not supposed to start residing or to
physically occupy it once possession has
been
taken
by
drawing
the
inquest
proceedings for obtaining possession thereof.
Thereafter, if any further retaining of land or
any re-entry is made on the land or someone
starts cultivation on the open land or starts
residing in the outhouse, etc., is deemed to be
the trespasser on land which in possession of
the State. The possession of trespasser always
inures for the benefit of the real owner that is
the State Government in the case.

xxxx

256. Thus, it is apparent that
vesting is with possession and the statute
has provided under Sections 16 and 17 of
the Act of 1894 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." (emphasis supplied)

19. In the present case, the petitioners
are nobodies so far as the land in dispute is
concerned. They are trespassers on State
land, of which possession had already been
taken in proceedings for acquisition.
Merely because in the large tract of land
acquired for a big scheme, some remote
corner has remained unguarded, would not
entitle the petitioners to claim on the basis
of void sale deeds, even the semblance of a
right based on possession. The assertion of
the right to possession over such acquired
land of the State is inherently so illegal that
it cannot be regarded as a settled possession
of the occupier, which can only be removed
through the judicial process.

20. In the circumstances, there is no
force in this writ petition. It fails and is
dismissed.
332 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2023) 3 ILRA 332
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.02.2023

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE ANISH KUMAR GUPTA, J.

Writ C No. 28220 of 2022
With
Writ C No. 28071of 2022
and other connected cases

Rajendra Prasad ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Arvind Singh

Counsel for the Respondents:
C.S.C.

A. Character certificate - Issuance and
rejection - GO dated 02.02.20 23 - Para
6A and 6B - Though forum has been
provided therein, yet modalities have not
been finalized - Effect - High Court issued
direction to enforce para 6A and 6B - High
Court further issued direction to finalize
the
modalities
for
grant,
rejection,
suspension
or
cancellation
etc.
of
character certificates. (Para 5 and 8)

Writ petitions disposed of . (E-1)

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.
&
Hon'ble Anish Kumar Gupta, J.)

1. Heard Shri Arvind Singh, learned
counsel for the petitioner in Writ-C
No.28220 of 2022, Shri Rahul Mishra,
learned counsel for the petitioner in Writ-C
No.28071 of 2022, Shri Rakesh Kumar
Dubey, learned counsel for the petitioner in
Writ-C No.32690 of 2022, Shri Rakesh
Kumar Pandey, learned Senior Advocate
assisted by Shri Santosh Kumar Singh
holding
brief
of
Parmeshwar
Kr.
Chaudhary,
learned
counsel
for
the
petitioner in Writ-C No.34443 of 2022,
Shri Utkarsh Srivastava, learned counsel
for the petitioner in Writ-C No. 34611 of
2022, Shri Shitla Prasad Pandey, learned
counsel for the petitioner in Writ-C
No.36083 of 2022, Shri Shravan Kumar
Pandey, learned counsel for the petitioner
in Writ-C No.37521 of 2022, Shri Ramesh
Kumar Kushwaha, learned counsel for the
petitioner in Writ-C No. 34540 of 2022 and
Shri Manish Goyal, learned Additional
Advocate General assisted by Shri Ankur
Tandon, learned counsel for the
 State-respondents.

2. Grievance of the petitioners are
either:-

(a)
against
the
rejection
of
application for character certificate; or

(b) suspension or cancellation of
their character certificates; or

(c)
non-providing
of
any
modalities
for
issuance
of
character
certificate; or

(d) non-providing of any forum to
challenge the orders passed by the District
Magistrate
adversely
disposing
of
a
character certificate application.

3. Since the controversy involved in
the present writ petitions is mainly on the
above noted points and the State has filed
personal affidavit of respondent no.1
providing for a forum and the learned
Additional Advocate General has stated
that modalities for grant or refusal to
grant character certificate are under