# Sukhveer and others v. State

- **Citation:** (2004) 1 ILRA 191
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004
- **Case number:** Civil Misc. Writ Petition No. 2594 of 2002
- **Bench:** M. Katju, R.S. Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sukhveer-and-others-v-state-39139
- **Pages:** 4

## Headnote

Land Acquisition Act-Ss. 4, 6 and 11-A-
Land acquisition-Notification under S. 6
issued after one year from publication of
notification
under
S.4-Held,
invalidPossession of land also not taken-Land in
question not vested with NOIDA-Further
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192 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
no
award
made
till
date-held,
proceedings lapsed under S. 11-A.

Held: Para 7

In paragraph 4 it is stated that the
petitioners are still in the possession of
the land in dispute and the land has not
vested in NOIDA. Till now the award has
not been made and hence proceedings
have lapsed under Section 11-A. The
notification under Section 4 was last
published on 31.10.1994 whereas the
notification
under
Section
6
was
published on 10.11.1995 i.e. after one
year of the notification under Section 4.
Hence it is invalid.
Case law discussed:
C.M.W.P.No. 27317 of 2001, decided on
5.3.2004

## Text

1 All] Sukhveer and others V. State of U.P. and others 191
jurisdiction can be permitted to be raised
only in rarest of rare cases. It can not be
permitted to be used as second inning of
litigation. Even if all the allegations made
by the tenant are taken to be correct still it
cannot be said that the JSCC while
deciding the suit had no jurisdiction to
decide the said points and objections.

9. In V.D. Modi Vs. R.A. Rahman,
A.I.R. 1970 S.C. 1475 it has been held in
para-7:-
"When the decree is made by a Court
which has no inherent jurisdiction to
make it, objection as to its validity may be
raised in an execution proceeding if the
objection appears on the face of the
record: where the objection as to the
jurisdiction of the Court to pass the decree
does not appear on the face of the record
and requires examination of the questions
raised and decided at the trial or which
could have been but have not been raised,
the
executing
court
will
have
no
jurisdiction to entertain an objection as to
the validity of the decree even on the
ground of absence of jurisdiction."

10. In the instant case the tenantpetitioner is questioning the jurisdiction
of the Court to pass the decree which is
sought to be executed on the basis of
material brought on record only in
execution proceedings consisting of pleas
taken by K.D.A. in the earlier suit.
Neither the petitioner has asserted nor he
can assert that on the basis of material on
record before the trial court till the date of
passing of the ex-parte decree, the decree
can be said to be nullity or without
jurisdiction. Petitioner in view of the
aforesaid authority of the Supreme Court
cannot be permitted to challenge the
decree on the ground that it was nullity in
execution proceedings on the basis of
material brought on record for the first
time in the execution proceedings itself by
him.

Accordingly, there is no merit in this
petition and it is dismissed.

11. The tenant petitioner is granted
three months time to vacate provided that
within one month from today he files an
under taking before JSCC to the affect
that on or before the expiry of the
aforesaid period of three months he will
willingly vacate and hand over the
possession of the property in dispute to
the landlord.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE R.S. TRIPATHI, J.

Civil Misc. Writ Petition No. 2594 of 2002

Sukhveer and others
 ...Petitioners
Versus
State
of
U.P.
through
Collector,
Gautambudh Nagar and others

 ...Respondents

Counsel for the Petitioners:
Sri Pankaj Mithal

Counsel for the Respondents:
Sri A.K. Mishra
Sri Vivek Saran
S.C.

Land Acquisition Act-Ss. 4, 6 and 11-A-
Land acquisition-Notification under S. 6
issued after one year from publication of
notification
under
S.4-Held,
invalidPossession of land also not taken-Land in
question not vested with NOIDA-Further
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192 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
no
award
made
till
date-held,
proceedings lapsed under S. 11-A.

Held: Para 7

In paragraph 4 it is stated that the
petitioners are still in the possession of
the land in dispute and the land has not
vested in NOIDA. Till now the award has
not been made and hence proceedings
have lapsed under Section 11-A. The
notification under Section 4 was last
published on 31.10.1994 whereas the
notification
under
Section
6
was
published on 10.11.1995 i.e. after one
year of the notification under Section 4.
Hence it is invalid.
Case law discussed:
C.M.W.P.No. 27317 of 2001, decided on
5.3.2004

(Delivered by Hon'ble M. Katju, J.)

1. This writ petition has been filed
for a mandamus declaring the land
acquisition proceedings in pursuance of
the notification dated 25.2.1994 and
10.11.1995 as having lapsed by virtue of
Section 11-A of the Land Acquisition
Act. It has also been prayed that the
respondents be directed not to interfere
with the petitioners possession over the
land in dispute.

Heard learned counsel for the parties.

2. The petitioners claimed to be
recorded as tenure holders of the khasra
plots as stated in paragraphs 2 and 3 of
the writ petition and they claimed to be in
actual physical possession. On the request
of the New Okhla Industrial Development
Authority (NOIDA) a notification was
issued under Section 4 of the Land
Acquisition
Act
on 25.2.1994
vide
Annexure 2 to the writ petition. A perusal
of this notification shows that the land
was being acquired for the planned
industrial
development
in
district
Ghaziabad through NOIDA and there was
urgency and Section 17 of the Act was
invoked.

3. It is alleged in paragraph 9 of the
writ petition that the notification was
never pasted at any conspicuous place in
the locality nor announced by beat of
drums.
Thereafter
notification
under
Section 6 was issued on 10.11.1995 vide
Annexure 3 to the writ petition.

4. In paragraph 13 of the writ
petition it is alleged that the notification
under Section 4 was last alleged to be
published on 31.10.1994. Hence there can
be no valid publication under Section 6
after 31.10.1995. Hence it is alleged that
the publication of the notification under
Section 6 either on 3.7.1997 or on
4.7.1997 was invalid.

5. In paragraph 18 and 19 of the writ
petition it is alleged that the proceedings
have lapsed in view of Section 11-A of
the Land Acquisition Act since no award
was made within two years of the
publication of declaration under Section
6. It is alleged that the land never vested
in the State as possession was not taken
over within the said period of two years.
It is alleged in paragraph 21 that the very
fact that no steps were taken to take
possession shows that there was no
urgency in the matter. For the first time
on 12.11.2001 the Collector, Gautambudh
Nagar offered 80% of the estimated
compensation under Section 17 (3-A).
True copy of the notice dated 12.11.2001
is Annexure 4 to the writ petition. It is
alleged that from the above notice dated
12.11.2001 it is clear that the respondents
had not taken possession of the land in
dispute till 12.11.2001. It is alleged in
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1 All] Sukhveer and others V. State of U.P. and others 193
paragraph 25 of the writ petition that after
issuing notice dated 12.11.2001 the
officers and employees of the NOIDA
visited the site on 2.1.2002 and threatened
to dispossess the petitioners and demolish
their constructions. In paragraph 27 of the
writ petition it is stated that the petitioners
made enquiries and came to know that the
respondents are alleged to have obtained
possession of the acquired land vide
possession memo dated 28.6.1999 and
29.6.1999 vide Annexure 6 and 7 to the
writ petition. It is alleged in paragraph 28
of the writ petition that these documents
are manipulated. In paragraph 29 of the
writ petition it is alleged that there was no
publication of the declaration issued
under Section 6 made on 4.7.1997. The
said declaration was not published in the
newspaper nor pasted on the notice Board
at any convenient place at the locality nor
proclaimed by beat of drums. It is alleged
that
the
possession
memos
dated
28.6.1999 and 29.6.1999 are merely
orders of the A.D.M. (Land Acquisition),
district Gautambudh Nagar directing the
sub-ordinate staff to take possession of
the acquired land. However, it is alleged
that there is no document to show that the
possession was actually taken over and
handed over to NOIDA. In paragraph 38
it is alleged that nether any award under
Section 11 was made nor any valid
vesting in the State under Section 16 took
place. Hence the acquisition proceedings
have lapsed. In paragraph 45 of the writ
petition it is alleged that the declaration
under Section 6 was issued on 10.11.1995
and therefore the period of two years for
making the award or taking possession
expired
much
before
the
alleged
possession memo dated 28.6.1999 and
29.6.1999. It is alleged in paragraph 49 of
the writ petition that no compensation was
offered or tendered to the petitioners
under Section 17 (3-A).

6. A counter affidavit has been filed
by NOIDA and we have perused the
same. In paragraph 4 of the same it is
stated that the notification under Section
4/17 dated 28.1.1994 was published in the
Gazette on 25.2.1994, and the notification
under Section 6/17 was issued on
10.11.1995. The Possession of the land
was taken by the NOIDA on 28.6.1999
and at present this is part of Sector 43 of
NOIDA which is a fully developed area.
True copy of the notification and
possession letters are Annexures C.A. 1,
C.A. 2 and C.A. 3 to the counter affidavit.
In paragraph 5 it is stated that the
possession has been legally taken over by
the respondents. In paragraph 8 it is stated
that the declaration was made in the local
newspapers
as
well
as
the
mode
prescribed under the Act. In paragraph 21
it is stated that as soon as the acquisition
proceeding was completed NOIDA was
given physical possession of the land in
dispute. It is alleged that during the entire
acquisition proceeding no legal objection
was raised regarding the land in dispute.
NOIDA has deposed 80% compensation
with
the
concerned
authority.
The
possession was taken over on 28.6.1999
and it is borne out from the possession
letter. Once possession of the land has
been taken over it has vested free from all
encumbrances. The land was urgently
required
for
the
planned
industrial
development of NOIDA.

7. A rejoinder affidavit has been
filed and we have perused the same. In
paragraph 3 of the same it is alleged that
the newspapers, 'Dainik Atha', 'Dainik
Bharat', 'Dainik Bechain Bharat' and
'Dainik Navin Vishwamanav' in which
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194 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
the notification was published are no
newspapers at all. They do not have wide
circulation. Hence the publication in these
newspapers is no information to the
public at all. It is denied that the
substance
of
the
notification
was
published in the locality either by beat of
drums or by pasting it on the notice board.
The
document
showing
the
local
publication has been manufactured for the
purpose of this notification. Notification
under Section 6 was also not published in
wider
circulated
newspapers.
The
possession of the land was not legally
taken
either
on
28.6.1999
or
on
29.6.1999. In paragraph 4 it is stated that
the petitioners are still in the possession
of the land in dispute and the land has not
vested in NOIDA. Till now the award has
not been made and hence proceedings
have lapsed under Section 11-A. The
notification under Section 4 was last
published on 31.10.1994 whereas the
notification
under
Section
6
was
published on 10.11.1995 i.e. after one
year of the notification under Section 4.
Hence it is invalid.

8. On the facts of the case we find
no merit in this petition. In Kaloo Ram
Vs. State of U.P. and others, Civil Misc.
Writ Petition No. 27317 of 2001 decided
on 5.3.2004 the points which have been
pressed in this petition have all been
considered in great detail and have been
rejected. The entire case law on all the
points is mentioned in Kaloo Ram's case
(supra). The effect of U.P. Act No. 8 of
1974 amending the Land Acquisition Act
as interpreted by the Supreme Court and
this Court has also been considered
therein. Hence in view of the judgment in
Kaloo Ram's case (Supra) this petition is
dismissed. Interim order if any is vacated.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.02.2004

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE POONAM SRIVASTAVA, J.

Civil Misc. Writ Petition No. 3004 of 2002

Dr. (Mrs.) Anita Sahai

...Petitioner
Versus
Director of Income Tax (Investigation)
Kanpur and others
 ...Respondents

Counsel for the Petitioner:
Sri S.K. Garg
Sri R.S. Agarwal
Sri Siddharth Pathak
Sri Dhruv Agarwal

Counsel for the Respondents:
C.S.C.

Income Tax Act-Ss.132 read with S.281
B-Search and seizure-Warrant-Legality-
'Reason to believe' even if existed prior
to issuance of warrant of authorization,
held-an illegal warrant of authorization,
since
relevant
material
taken
into
consideration by Director/Commissionssubsequent to issuance of warrant of
authorization-Hence search and seizure,
held, illegal-Moreover prohibitory orders
under S. 132 (3) read with S.281-B of
the Act expired on 27.2.2003 and no
extension is on record-Hence entire
seizure and restraint order relating to
Bank accounts in question, become
infructuous-direction issued to release
forthwith.

Held: Paras 27, 43 & 45

It is well settled that before taking any
action under section 132 of the Act the
condition precedent which must exist
should be information in possession of
Director of Income Tax which gives him
reason to believe that a person is in
possession of some article, jewellery,
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