# Shyoraj Singh & Anr v. State of U.P. & Ors

- **Citation:** (2022) 1 ILRA 799
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-14
- **Case number:** Writ C No. 23806 of 2021
- **Bench:** Rajesh Bindal, C.J. Piyush Agrawal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shyoraj-singh-anr-v-state-of-u-p-ors-47510
- **Pages:** 8

## Headnote

A. Acquisition law - Land Acquisition
Act, 1894 - Section 48 - Application -
Compensation
received
after
acquisition, however an application
u/s 48 to withdraw from acquisition
was filed - Maintainability - Held, the
case of the petitioners will not fall
within the scope of Section 48 of
the 1894 Act, for the reason that it is
the definite case of the St. and is even
evident from the material on record
that the possession of the land was
taken immediately after acquisition
and the St. had transferred the same
to the Corporation, which had even
developed an industrial eSt. thereon.
(Para 19)
B. Acquisition law - Vesting of land in
St. - It's effect - Possession retained
by
the
private
person
even
after
acquisition - Changing in the status of
private owner to the trespasser - Held,
after acquisition of land and passing of
award, the land vests in the St. free
from all encumbrances. The vesting of
land with the St. is with possession -
Any person retaining the possession
thereafter has to be treated trespasser
-
When
large
chunk
of
land
is
acquired, the St. 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
-
Indore
Development
Authority's
case
is
followed. (Para 20)
C. Right to Fair Compensation and
Transparency
in
Land
Acquisition,
Rehabilitation and Resettlement Act,
2013 - S. 101 - Return of the land
claimed - Acquisition took place in
1987-88 - Applicability of the Act of
2013 - Held, it is not the case of the
petitioners that acquisition of the land is
under the provisions of the 2013 Act -
Rather
the
acquisition
process
was
completed way back in the year 1987-88
under the provisions of the 1894 Act.
Hence, the provisions of Section 101 of
the 2013 Act will have no application in
the case in hand. (Para 23)
Writ petition dismissed. (E-1)
800 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:-

## Text

1 All. Shyoraj Singh & Anr. Vs. State of U.P. & Ors.
799

24. Considering the facts and
circumstances of the case and submissions
made by the parties, this writ petition is
disposed of with a direction to the
petitioners
to
make
a
detailed
representation before the respondent no.2
for redressal of their grievances. If any
such representation is made, the respondent
no.2-Sachiv, Pariksha Niyamak Pradhikari,
U.P., Elanganj Prayagraj, shall make all
endeavours to consider and decide the
same, in accordance with law, preferably
within a period of three months from the
date of receipt of the said representation.

25. Accordingly, this writ petition is
disposed of.
----------
(2022)01ILR A799
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.12.2021

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE PIYUSH AGRAWAL, J.

Writ C No. 23806 of 2021

Shyoraj Singh & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Gautam Kumar

Counsel for the Respondents:
Sri Ramanand Pandey, Addl.C.S.C.

A. Acquisition law - Land Acquisition
Act, 1894 - Section 48 - Application -
Compensation
received
after
acquisition, however an application
u/s 48 to withdraw from acquisition
was filed - Maintainability - Held, the
case of the petitioners will not fall
within the scope of Section 48 of
the 1894 Act, for the reason that it is
the definite case of the St. and is even
evident from the material on record
that the possession of the land was
taken immediately after acquisition
and the St. had transferred the same
to the Corporation, which had even
developed an industrial eSt. thereon.
(Para 19)
B. Acquisition law - Vesting of land in
St. - It's effect - Possession retained
by
the
private
person
even
after
acquisition - Changing in the status of
private owner to the trespasser - Held,
after acquisition of land and passing of
award, the land vests in the St. free
from all encumbrances. The vesting of
land with the St. is with possession -
Any person retaining the possession
thereafter has to be treated trespasser
-
When
large
chunk
of
land
is
acquired, the St. 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
-
Indore
Development
Authority's
case
is
followed. (Para 20)
C. Right to Fair Compensation and
Transparency
in
Land
Acquisition,
Rehabilitation and Resettlement Act,
2013 - S. 101 - Return of the land
claimed - Acquisition took place in
1987-88 - Applicability of the Act of
2013 - Held, it is not the case of the
petitioners that acquisition of the land is
under the provisions of the 2013 Act -
Rather
the
acquisition
process
was
completed way back in the year 1987-88
under the provisions of the 1894 Act.
Hence, the provisions of Section 101 of
the 2013 Act will have no application in
the case in hand. (Para 23)
Writ petition dismissed. (E-1)
800 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:-
1. Om Prakash & anr.Vs St. of U.P. & ors.;
(1998) 6 SCC 1
2. Indore Development Authority Vs Manoharlal
& ors.; AIR 2020 SC 1496
(Delivered by Hon'ble Rajesh Bindal, C.J.)

1. The present petition has been filed
by the petitioners impugning the notice
dated August 10, 2021 issued by U.P. State
Industrial
Development
Corporation
(hereinafter
referred
to
as
"the
Corporation") directing the petitioners to
remove
the
unauthorized
construction
raised on the land which was already
allotted to an industrial unit, otherwise
action was to be taken against the
petitioners in accordance with law. Further
prayer has been made seeking a direction to
the respondent no. 1 to decide the
application filed by petitioners under
Section 48 of the Land Acquisition Act,
1894 (hereinafter referred to as "1894
Act").

2. Learned counsel for the petitioners
submitted that the land was sought to be
acquired for the use by Corporation.
Emergency provision of Section 17 of the
1894 Act were invoked. Notification under
Section 6 was issued on April 15, 1986.
Thereafter award was passed by Land
Acquisition Officer (hereinafter referred to
as "LAO"). The possession of the land was
never taken by the State. The petitioners
have raised construction thereon where
cow-shed and a school is running with
about 400 students studying therein. The
project for which the land was acquired has
already been completed and the land in
question is lying surplus.

3. He further referred to Section 17 of
U.P. Urban Planning and Development
Act, 1973 (hereinafter referred to as "1973
Act") to state that in case acquired land is
not utilized for a period of five years, the
landowner can seek to return the same back
to him. In the case in hand, for the last
about three decades land in question has
not been utilized, hence, petitioners have a
right to get their land back. They are ready
to deposit the compensation back.

4. Though not pleaded in the writ
petition, the learned counsel for the
petitioners also sought to invoke the
provisions of Section 101 of Right to Fair
Compensation and Transparency in Land
Acquisition,
Rehabilitation
and
Resettlement
Act,
2013
(hereinafter
referred to as "2013 Act") to submit that
even in terms of the aforesaid provision,
land in question deserves to be returned
back to the petitioners as the land was not
utilized within five years of acquisition.
They will suffer irreparable loss. As
regards allotment of the land to any other
person, as has been mentioned in the show
cause notice, the argument raised is that
neither any lease-deed has been executed
by the Corporation in favour of the allottee
nor any construction has been raised by
him, hence, otherwise also that allotment
has to be cancelled.

5.

He
further
submitted
that
provisions of Section 17 of the 1894 Act
were wrongly invoked for the reason that
acquisition in question was merely for
development of an industrial estate. In
support of the argument, reliance is placed
upon the judgment of Hon'ble Supreme
Court in Om Prakash and another Vs.
State of U.P. and others (1998) 6 SCC 1.

6. On the other hand, learned counsel
for the State submitted that the petitioners
do not have any right to claim that the land,
1 All. Shyoraj Singh & Anr. Vs. State of U.P. & Ors.
801
which already stood acquired and for which
the compensation has admittedly been
received by the petitioners, be returned
back to them. The acquisition proceedings
having been completed, the petitioners do
not have any right to invoke Section 48 of
1894 Act. The possession of the land was
taken immediately after acquisition and
handed over to the Corporation, which had
even carved out plots and sold to number of
allottees. Merely because on some portion
of the land the petitioners have made
certain construction after encroaching upon
the same, will not entitle them to claim its
release from acquisition.

7. The provisions of Section 17 of the
1973 Act will not come to the rescue the
petitioners for the reason that the land in
question was utilized immediately after
acquisition as it was transferred to the
Corporation. The development activities
started immediately and the industrial
estate was developed.

8. The provisions of Section 101 of
the 2013 Act are also not applicable to the
case in hand as the acquisition in question
is not under the aforesaid Act. It is further
submitted that it is too late to allow the
petitioners to challenge the acquisition
which already stood completed way back in
the year 1987-88 that too after receiving
compensation alleging that provisions of
Section 17 of 1894 Act were wrongly
invoked. The application under Section 48
of 1894 Act was filed by the petitioners
only after notice was issued by the
Corporation to the petitioners for removal
of encroachment made on the part of the
land. The petitioners otherwise also cannot
invoke the provisions of Section 48 of 1894
Act as the possession of the land in
question was taken immediately after
acquisition
and
the
same
was
transferred to the Corporation, which in
turn had even allotted the plots carved out
thereon. Any construction raised by the
petitioners was unauthorized.

9. In response, learned counsel for the
petitioners submitted that even as per the
notice issued to the petitioners, the allotment
of plot was made by Corporation in the year
2007. It was much beyond five years period
as provided in Section 17 of the 1973 Act
and Section 101 of the 2013 Act. Hence, the
land was not utilized before that.

10. We have heard learned counsel
for parties and perused the relevant record.

11.
 Section
48 of
the
Land
Acquisition Act, 1894, on which reliance
was placed by the learned counsel for the
petitioners, is extracted below:

"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
802 INDIAN LAW REPORTS ALLAHABAD SERIES
determination of the compensation payable
under this section."

12. Section 17 of the U.P. Urban
Planning and Development Act, 1973 is
reproduced as under:

"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 from 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 if any as 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."

13. Section 101 of the Right to Fair
Compensation and Transparency in Land
Acquisition,
Rehabilitation
and
Resettlement Act, 2013 reads as under:

"101.
Return
of
unutilised
land.- When any land acquired under this
Act remains unutilised for a period of five
years from the date of taking over the
possession, the same shall be returned to
the original owner or owners or their legal
heirs, as the case may be, or to the Land
Bank of the appropriate Government by
reversion in the manner as may be
prescribed by the appropriate Government."

14. The basic facts, which are not in
dispute in the present petition, are that
notification under Section 4 of 1894 Act,
was issued on April 11, 1986. After
invoking the provisions of Section 17 of
1894 Act dispensing with the filing of the
objections under Section 5-A thereof,
notification under Section 6 of the 1894
Act was issued on April 15, 1986. The
award was pronounced by the LAO
immediately thereafter.

15. It remained undisputed that the
petitioners' land was acquired and they had
also received the compensation in terms of
their entitlement. The stand taken by the
respondents is that immediately after
acquisition process of the land was
completed, the possession thereof was
taken from the landowners and it was
handed over to the Corporation for
development as an industrial estate. In fact,
the industrial estate stands developed and
the plots have been allotted to various
persons where industrial units have also
been setup. Even in the case of the
petitioners, in the show-cause notice issued
to them for removal of unauthorized
1 All. Shyoraj Singh & Anr. Vs. State of U.P. & Ors.
803
construction, it has been stated that a plot
carved out thereon has been allotted.

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 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.

18. As far as challenge to the
acquisition of land at this stage on the
ground that invocation of Section 17 of the
1894 Act was illegal, the argument is to be
noticed and rejected for the reason that
process of acquisition was completed way
back in the year 1987-88. The petitioners
have even received the compensation and
did not raise any objection immediately
thereafter. They cannot be permitted to
challenge the acquisition three decades
after the process of acquisition was
completed.

19. Section 48 of the 1894 Act
provides that the Government is at liberty
to withdraw from acquisition any land of
which possession has not been taken. In the
case
in
hand,
the
petitioners
filed
application under Section 48 of the 1894
Act after they were issued notice by the
Corporation for removal of unauthorized
construction on the acquired land for which
even they had received the compensation.
The case of the petitioners will not fall
within the scope of Section 48 of the 1894
Act, for the reason that it is the definite
case of the State and is even evident from
the material on record that the possession
of the land was taken immediately after
acquisition and the State had transferred the
same to the Corporation, which had even
developed an industrial estate thereon. The
part of the land, which is in possession of
the petitioners, is forming part of a plot
which stood allotted to Amarjeet Kaur, way
back in 2007. Hence, no direction can be
issued to the State even for consideration of
the application filed by the petitioners
invoking Section 48 of the 1894 Act.

20. The issue as to what is meant by
"possession of the land by the State after its
acquisition" has also been considered by
804 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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
1 All. Shyoraj Singh & Anr. Vs. State of U.P. & Ors.
805
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)

21. Keeping in view the above
enunciation of law by Hon'ble the
Supreme Court in Indore Development
Authority's case (supra), in the case in
hand on the undisputed facts on record it
can safely be opined that in the present
case the acquisition proceedings stood
completed. The award was announced,
the
compensation
was
received
by
petitioners, hence the land vested in the
State with possession, free from all
encumbrance. In case, the petitioners
have raised any construction, they are the
trespassers and are to be dealt with as
such. Once the possession of the land
already stood vested in the State, no
question arises for invocation of Section
48 of 1894 Act.

22. Though it is not pleaded in the
petition, however, at the time of argument,
learned counsel for the petitioners sought to
rely upon the provision of Section 101 of
the 2013 Act for return of the land to the
petitioners, which according to them had
not been utilized after acquisition. As the
argument is legal, we deem it appropriate
to deal with the same.

23. A bare perusal of Section 101 of
the 2013 Act shows that the same can be
invoked or the power thereunder can be
exercised by the State if the acquisition had
been carried out under the provisions of the
2013 Act. In the case in hand, it is not the
case of the petitioners that acquisition of
the land is under the provisions of the 2013
Act. Rather the acquisition process was
completed way back in the year 1987-88
under the provisions of the 1894 Act.
Hence, the provisions of Section 101 of the
2013 Act will have no application in the
case in hand. The issue was dealt with by a
Constitution Bench of Hon'ble Supreme
Court in Indore Development Authority's
case (supra). Para 361 thereof, which deals
with the situation, is extracted below:

"361. Section 24 deals with lapse
of acquisition. Section 101 deals with the
return of unutilized land. Section 101
cannot be said to be applicable to an
acquisition made under the Act of 1894.
The provision of lapse has to be considered
on its own strength and not by virtue of
Section 101 though the spirit is to give
back the land to the original owner or
owners or the legal heirs or to the Land
Bank. Return of lands is with respect to all
lands acquired under the Act of 2013 as the
expression used in the opening part is
"When any land, acquired under this Act
remains unutilized". Lapse, on the other
806 INDIAN LAW REPORTS ALLAHABAD SERIES
hand, occurs when the State does not take
steps in terms of Section 24(2). The
provisions of Section 101 cannot be applied
to the acquisitions made under the Act of
1894. Thus, no such sustenance can be
drawn from the provisions contained in
Section 101 of the Act of 2013. Five years'
logic has been carried into effect for the
purpose of lapse and not for the purpose of
returning the land remaining unutilized
under Section 24(2)."

24. In view of the aforesaid view
expressed by the Constitution Bench of
Hon'ble
Supreme
Court
in
Indore
Development Authority's case (supra),
even the argument raised for release of the
land by invoking Section 101 of 2013 Act
also deserves to be rejected as acquisition
in question is not under the 2013 Act.

25. For the reasons mentioned above,
we do not find any merit in the present
petition.
The
same
is,
accordingly,
dismissed.
----------
(2022)01ILR A806
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.12.2021

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE VIKRAM D CHAUHAN, J.

Writ C No. 26844 of 2021

Vinay Kumar Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Kunwar Tejandra Bahadur, Sri Arvind
Kumar Tripathi

Counsel for the Respondents:
C.S.C.

A. National Trust for Welfare of Persons
with
Autism,
Cerebral
Palsy,
Mental
Retardation and Multiple Disabilities Act,
1999 - Section 14 - Appointment of
guardian for mentally retarded person -
Application
filed
before
the
District
Magistrate was neither in prescribed
format nor it provide the provision, under
which it was filed - Effect - Held, it is trite
of law that non-mentioning of a provision
of law in the application itself will not
invalidate the proceedings - The aforesaid
issues are technical issues and the wheels
of substantive justice cannot be stopped
only on the ground that the application of
the
petitioner
before
the
District
Magistrate is not in the prescribed form -
Aforesaid defect is a defect which is
curable. (Para 27 and 29)
B. Constitution of India - Article 21 -
Fundamental right of mentally retarded
person to have a guardian - Held, a
person with disability, including mental
retardation, cannot be permitted to be
without a guardian - The law envasages
protection and care to the aforesaid
person with disability, including mental
retardation
and
the
same
is
in
consequence
with
fundamental
right
under Article 21 of the Constitution of
India
-
The
person
with
disability,
including mental retardation, is entitled
under law to care and protection by the
St. Authorities so as to bring them within
the
mainstream
of
life,
care
and
protection. (Para 30)
Writ petition disposed of. (E-1)
List of Cases cited:-
1. High Court of Gujarat Vs Gujarat Kishan
Mazdoor Panchayat, (2003) 4 SCC 712
(Delivered by Hon'ble Vikram D Chauhan, J.)

1. The present writ petition has been
filed by the petitioner for issuance of a
direction to the District Magistrate, Bijnor