# Sunder Garden Welfare Association and another v. State of U.P. and others

- **Citation:** (2008) 1 ILRA 357
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-01-29
- **Case number:** Civil Misc. Writ Petition No.53984 of 2004
- **Bench:** Amitava Lala, V.C. Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sunder-garden-welfare-association-and-another-v-state-of-u-p-and-others-41130
- **Pages:** 9

## Headnote

Sri. V.K. Singh
Sri. B.K. Narayan
Sri. Ashok Trivedi
Sri. S.K. Mishra
Sri. T.B. Islam Ansari
Sri. Vivek Varma
S.C.

Land Acquisition Act 1894, Section 5-A,
17-Land acquired in the year 2003 for
Industrial development-while since 2001
Agricultural land converted in Abadi
Land-occupied by 291 member of Society
by raising buildings-even U.P.S.I.D.C. a
registered
Company-established
for
planned
industrial
development-not
empowered to develop the land for
residential purpose-No extreme urgency
for exemption of the provisions of
Section
5A
of
the
Act
shown-held
acquisition illegal-Quashed.

Held- Para 14 & 15

We find that the notification dated,16 4
2003..under, Section 4 read with Section
17 of the Act is unsustainable on the
grounds of non consideration of correct
facts, therefore the opinion of the
358 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Governor is not based upon cogent
material and therefore non consideration
of relevant facts such as abadi land, as
per report of the revenue authorities etc,
non compliance of due procedures, as
envisaged under Section 4 of the Act, i.e.
non publication of notification into two
local
newspapers
having
wide
circulations
in
area.
The
contesting
respondents alleged to have published in
Dainik Pralayankar and Dainik Bhavi
which have not been proved to be widely
circulated and known in the area to
make
people
aware
of
acquisition
proceedings. In such circumstances, the
notification
dated
30.6.2003
under
Section 6 read with Section 17 is wrong,
bad, unsustainable and illegal and since
the objections have not been considered,
at all, the satisfaction of the Governor is
void ab initio as the relevant factor
regarding use of the land is as abadi and
not for the agricultural use nor it was
vacant land.
We further find that the UPSIDC is a
company registered under the provisions
of the Companies Act and the same is
established
for
planned
industrial
development as per Memorandum of
Association, under which the UESIDC-is
not empowered to develop an abadi for
residential purpose,specially when the
land, in question had already been
declared abadi land subject to the
provisions of Ghaziabad Development
Authority. The land acquired was abadi
in 2001 under Section 143 of the U.P.Z.A.
and L.R. Act where as the initiation of
the acquisition proceedings took place in
April
2003,
as
such
this
fact
is
undisputed that the land in question was
abadi land much before the initiation of
the acquisition proceedings for which no
further enquiry is needed, as the same is
already on record and in view of the
same, the land in question was not liable
to be put under acquisition proceedings,
as held in 1998 (6) SCC (Om Prakash Vs.
State of U.P. and others) and 2003 (9)
SCC 542 (Ved Prakash Vs. Ministry of
Industry and others).

## Text

1 All] Sunder Garden Welfare Association and another V. State of U.P. and others
357
prescribed. As the issue had been
agitated by the applicant-respondent
for correcting his date of birth, the
onus was definitely upon him to
prove that his date of birth had
wrongly been recorded and not upon
the Union of India.
(xi). Averments made by the petitioner
that the applicant-respondent's father
had filed an affidavit in 1965
showing the dates of birth of all his
four children, according to which, if
the case is accepted, the applicantrespondent would be only one day
elder to his younger brother, has
been denied in his reply by the
applicant-respondent stating that this
issue has not been agitated before the
Tribunal and further that his father's
affidavit was false.
(xii).In case the judgment of the Tribunal
is upheld, the applicant-respondent
was not eligible for appearing in the
Civil Services Examination - 1982
on the basis of which, he was
,selected and appointed in IPS.

40. In view of the above, the petition
succeeds and is allowed. The order dated
10.02.2005 passed by the respondent no.2
is hereby set aside. In the facts and
circumstances of the case, there shall be
no order as to costs.
Petition allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.01.2008

BEFORE
THE HON'BLE AMITAVA LALA, J.
THE HON'BLE V.C. MISHRA, J.

Civil Misc. Writ Petition No.53984 of 2004

Sundar Garden Welfare Association and
another

... Petitioners
Versus
State of U.P. & others
 Respondents

Counsel for the Petitioners:
Sri. S.K. Dubey
Sri Siddharth Srivastava
Sri Ashok Nath Tripathi

Counsel for the Respondents:
Sri. V.K. Singh
Sri. B.K. Narayan
Sri. Ashok Trivedi
Sri. S.K. Mishra
Sri. T.B. Islam Ansari
Sri. Vivek Varma
S.C.

Land Acquisition Act 1894, Section 5-A,
17-Land acquired in the year 2003 for
Industrial development-while since 2001
Agricultural land converted in Abadi
Land-occupied by 291 member of Society
by raising buildings-even U.P.S.I.D.C. a
registered
Company-established
for
planned
industrial
development-not
empowered to develop the land for
residential purpose-No extreme urgency
for exemption of the provisions of
Section
5A
of
the
Act
shown-held
acquisition illegal-Quashed.

Held- Para 14 & 15

We find that the notification dated,16 4
2003..under, Section 4 read with Section
17 of the Act is unsustainable on the
grounds of non consideration of correct
facts, therefore the opinion of the
358 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Governor is not based upon cogent
material and therefore non consideration
of relevant facts such as abadi land, as
per report of the revenue authorities etc,
non compliance of due procedures, as
envisaged under Section 4 of the Act, i.e.
non publication of notification into two
local
newspapers
having
wide
circulations
in
area.
The
contesting
respondents alleged to have published in
Dainik Pralayankar and Dainik Bhavi
which have not been proved to be widely
circulated and known in the area to
make
people
aware
of
acquisition
proceedings. In such circumstances, the
notification
dated
30.6.2003
under
Section 6 read with Section 17 is wrong,
bad, unsustainable and illegal and since
the objections have not been considered,
at all, the satisfaction of the Governor is
void ab initio as the relevant factor
regarding use of the land is as abadi and
not for the agricultural use nor it was
vacant land.
We further find that the UPSIDC is a
company registered under the provisions
of the Companies Act and the same is
established
for
planned
industrial
development as per Memorandum of
Association, under which the UESIDC-is
not empowered to develop an abadi for
residential purpose,specially when the
land, in question had already been
declared abadi land subject to the
provisions of Ghaziabad Development
Authority. The land acquired was abadi
in 2001 under Section 143 of the U.P.Z.A.
and L.R. Act where as the initiation of
the acquisition proceedings took place in
April
2003,
as
such
this
fact
is
undisputed that the land in question was
abadi land much before the initiation of
the acquisition proceedings for which no
further enquiry is needed, as the same is
already on record and in view of the
same, the land in question was not liable
to be put under acquisition proceedings,
as held in 1998 (6) SCC (Om Prakash Vs.
State of U.P. and others) and 2003 (9)
SCC 542 (Ved Prakash Vs. Ministry of
Industry and others).

(Delivered by Hon'ble V.C. Misra, J.)

1. The present writ petition has
been filed by the petitioners-Sundar
Garden Welfare Association formed by
the residents of the society. The
petitioner No.2 is the Secretary of the
society who has been authorized by the
residents of the colony to prefer the
present writ petition vide resolution
dated 28.11.2004 of the association and
authorized the petitioner No.2 to sign
and contest the petition on their behalf
challenging
the
notification
issued
under Sections 4 and 6 of the Land
Acquisition Act (hereinafter referred to
as the Act) in respect with the plots
purchased and owned by the petitioners
mentioned in para 5 of the writ petition
and seeking a writ order or direction in
the nature of certiorari for quashing the
said gazette notification along with a
writ of mandamus commanding the
respondents
not
to
dispossess
the
petitioners by demolition of the houses
situate on the aforesaid plots have been
acquired by the State Government.

2. The facts of the case of the
petitioners
in
brief
are
that
the
petitioners-association
purchased
the
aforesaid bhumidhar land free from all
encumbrances bearing plot Nos.496,
497,544, 501,500, 578, 502, 504, 505,
498, 536, 538, 539 and 541 distributed
amongst its members through registered
sale
deeds.
After
purchasing
the
aforesaid plots a colony was developed
by the petitioners in the name of Sundar
Garden Colony and after developing the
said land the houses were constructed
thereupon by the members of the
society. The said houses are being
occupied by the members of the society.
The State Government acquired a large
1 All] Sunder Garden Welfare Association and another V. State of U.P. and others
359
area of land under the Act. The
members of the petitioners society had
filed Case No.2 of 2001 before the
Assistant Collector under Section 143
U.P.Z.A. & L. R. Act for being declared
as abadi land. Since the petitioners, as
per the report of the Tehsildar, were
registered
as
bhumidhar
with
transferable rights over the said land on
2.1.2001,
the
Tehsildar,
Ghaziabad
recommended for declaration of the said
land as abadi and the same was being
used as tenure holders for residential
purposes and was not being used for
Agriculture, Horticulture and Animal
Husbandry.
The
Sub
Divisional
Magistrate, Loni, Ghaziabad vide its
order dated 19.3.2001 declared the said
land as abadi.

3. On coming to know of some
acquisition proceedings to be initiated
by the respondents-State Government in
respect with the said land, they filed
their
objections
before
the
State
Government and a survey was made by
the concerned authorities of the State
Government. As per survey report there
exists several residential houses of the
members of the society on the aforesaid
plots. However, the State Government
vide
gazette
notification
dated
16.4.2003
acquired
the
aforesaid
land.which
was
published
in
an
unknown newspaper, namely, "Dainik
Pralayankar". A gazette notification
dated 16.4.2003 under Section 17 (1) of
the Act was issued by the State
Government to the effect that the
provisions of Section 17 (1) of the Act
are applicable to the said land inasmuch
as the same was urgently required for
the Planned Industrial Development in
District Ghaziabad and it was necessary
to ward off the delay likely to be caused
by an inquiry and hearing of objections
from the owners of the land under
Section 5-A of the Act with further
directions under Section 16 (4) of the
Act making the provisions of Section 5A of the Act inapplicable. Thus, the due
procedure as provided under Section 4
of the Act was not followed as the
notification was not published in the
two local newspapers having wide
circulation neither local publication was
made in original language nor the notice
was pasted on conspicuous place, even
Munadi was not made. This notification
was followed by a gazette notification
dated 30.6.2003 under Section 6 of the
Act being satisfied that the land
mentioned in the schedule was needed
for
the
purpose
of
Industrial
Development of Ghaziabad through
Uttar
Pradesh
State
Industrial
Development
Corporation,
Kanpur
(hereinafter
referred
to
as
the
Corporation) and directed the Collector,
Ghaziabad to take out the order of
acquisition for the said land under
Section 7 of the Act and that there being
urgency to take possession of the land
under Section 9 (1) of the Act and to
pass an award under Section 11 of the
Act.

4. The members of the society on
gaining knowledge of such acquisition
filed a representation dated 12.5.2004
before the State Government that the
aforesaid plots of the petitioners are
abadi land declared vide order dated
19.3.2001 by the revenue authorities
over which their houses are standing
and the same may be excluded from the
acquisition. Since no action was taken
by the State Government on the
representation and the authorities were
in hot haste to demolish the construction
360 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
standing upon the land, in question, the
petitioners filed the present writ petition
and prayed for an interlocutory order
restraining
the
respondents
from
dispossessing
and
demolishing
the
constructions made upon the said land
and obtained an interim order dated
20.12.2004.

5. The main ground raised in this
petition is that the land in question was
recorded as abadi land in the revenue
records and was being used as such and
was not being used as agricultural land
and thus could not be acquired, as per
the decision given by the Hon'ble Apex
Court in the case of Ved Prakash and
others
Vs.
Ministry
of
Industries,
Lucknow and another, reported in 2003
(9) SCC 542. Learned counsel for the
petitioners
has
submitted
that
the
notification issued under Sections 4 and
6 of the Act were null and void as
mandatory
requirements
regarding
gazette and publication etc. prescribed
under the Act had not been followed and
complied with. More so, there was no
necessity of applying the provisions of
urgency under Section 17 (4) of the Act
dispensing
with
the
provisions
of
Section 5-A of the Act preventing the
petitioners from being heard of their
objections and holding of an inquiry.

6. In the counter affidavit filed on
behalf of the State-respondents No.1 ,2,
& 3 it has been stated that the plots of
land in question have been acquired
under the provisions of U.P.Z.A. & L.
R. Act and the owners of the aforesaid
land have obtained money and the
affected persons have not challenged the
Government
Notification
dated
30.6.2003 thereafter the agreement has
come to an end which has not been
challenged, and that the petitioners have
not been shown as the owners of the
land and as such the writ petition is
liable to be dismissed with costs. It has
also been submitted that the State
Government published a news item in
two
daily.newspapers,
viz.
"Dainik
Jagran" on 23.5.2003 and "Dainik
Pralayankar" on 25.5.2003 and a beat of
drum was also made and therefore, after
expiry of the agreement the petitioners
did not continue as owner of the Sundar
Garden and since their names do not
find place in the revenue record, it
seems doubtful that the petitioners have
purchased the land for construction of
the colony. It is also stated that the
General Manager of the Corporation
made a proposal for requirement of land
for the development of industrial area.
On 3.6.1997 about 83.9 acres of land
was acquired but considering the gravity
of the grievance of the villagers 12
bighas and odd land was left for the
interests of the villagers and according
to the Nigam proposal for amended
acquisition was made. It has also been
stated that in the order dated 19.3.2001
passed by Sub Divisional Magistrate
with reference to the report of the
Tehsildar dated 2.2.2001 wherein it has
been mentioned over the vacant land in
which plotting had been done for abadi,
roads are being constructed between the
plots 4 and 5 and consequently,
acquiring body entered into some
agreement with the land holders which
was done in accordance with Section 11
(2) of the Act and after the decision the
land owners have been paid their
compensation. It has been further stated
that the petitioners (Sundar Garden
Welfare Association) had entered into
an agreement with the land owners
through power of attorney and the sale
1 All] Sunder Garden Welfare Association and another V. State of U.P. and others
361
deeds were executed after the expiry of
the period of agreement and as such the
petitioners are left with no right, title or
interest over the land and as the land in
question is registered in the names of
land holders in the revenue records
therefore, after settlement with the
acquiring body the compensation has
been paid to them.

7. It has been contended that the
counter
and
supplementary
counter
affidavits have been filed on behalf of
respondent No.4 the requiring body. In
para 5 of the counter affidavit filed on
behalf of respondent No.4 it has been
stated that a proposal was prepared to
acquire the land in question and the
same
was
sent
to
the
Collector,
Ghaziabad. It has also been contended
that the land was being used for
agricultural purposes only and was
totally vacant.

8. Sri V.K. Singh learned Senior
Advocate appearing for the respondent
No.4 has raised a preliminary objection
regarding maintainability of the writ
petition on two counts; Firstly, no
document is annexed for establishing
the averments made in the paragraphs 3
and 4 of the writ petition by the
association or person for enforcement of
rights of the members. Neither the rules
nor the regulation of the society are
available to authorise the association to
take legal proceedings on behalf of the
members for giving binding effect on
them of any order passed or to be passed
by the Court in the proceeding even
when the association is unregistered.
Secondly, payment of single Court fee
on behalf of the association in such a
situation
cannot
give
in
jurial
relationship between the members of the
association. More so, each of the
member of the petitioners' association
has a separate cause of action having
purchased land under separate sale deed
hence, single writ petition cannot be
held to be maintainable. He has placed
reliance upon a Full Bench decision of
this Court in the case of Umesh Chand
Vinod Kumar and others Vs. Krishi
Utpadan Mandi Samiti, Bharthana and
another reported in AIR 1984 Allahabad
46, Paras-17,18,20,34,35 & 45. Learned
counsel for the respondents has further
submitted that the interlocutory order
passed by this Court on 12.1.2005 for
giving particulars of the members has
not been complied with. Therefore, the
petitioners are not entitled to be heard in
the
present
writ
petition
as
the
petitioners did not disclose the identity
of the petitioners and the number of his
members and the description of the
land/plots and the constructions made
thereupon. The bye laws of association
has not been filed neither the resolution
referred to in para 2 of the writ petition
has been filed.

9. Having heard extensively the
learned counsel for the parties and
perusal of the record including Full
Bench decision of Umesh Chand (supra)
in
respect
with
the
preliminary
objections, we are of the view that the
writ petition is very much maintainable
on both the counts. Petitioner Nos. 1
and 2 have described in para 3 the
details of the plots held by the members
of the petitioners' association. No doubt,
in para 17 a mention has been made to
the effect that there are about 150
members in the petitioners' association
but in the supplementary affidavit dated
16.12.2007 the figure of Members has
been shown as 291 who had purchased
362 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
the land in question through registered
sale deeds, much before the initiation of
land acquisition proceedings, and at that
time the land was recorded as abadi. So
for as the joinder or misjoinder of
petitioners is concerned, the petitioners
have a right to approach this Court in a
single
writ
petition
through
the
association as the right seeking relief
against respondents arises from the
same act of acquisition of land under the
Land Acquisition Act and common
questions
of
law
arise
and
the
petitioners are jointly interested in the
same cause of action which has been
settled by the Full Bench decision of
this Court in Mal Singh's case reported
in 1968 A.L.J. 210, Paras 24 and 28
followed by another Full Bench decision
of this Court reported in AIR 1984
Allahabad page 46, Paras 24 and 25. In
paras 36,37 and 38 in the case of Umesh
Chand (supra) which reads as under:-

"36. Where a single writ petition by
an association or by more than one
person is maintainable as mentioned as
above, only one set of court-fees would
be payable. The levy of court-fee will
not depend on the number of persons -
who have joined in the writ petition.
But, where a single writ petition is not
validly maintainable, but nonetheless
several persons joint in it, then the
principle laid down in Mota Singh's
case (AIR 1981 SC 484) will apply;
namely, each petitioner will have to pay
court-fee separately as if he bad filed a
separate writ petition. In such cases the
writ petition . may not, in the discretion
of the Court, be dismissed outright. The
defect of misjoinder of petitioners can
be cured by requiring each petitioner to
pay separate court-fees.

37. Our answer to the third question is
that where a single writ petition by an
association or by more than one person
is maintainable, then a single set of
court-fees would be payable. Else, each
petitioner is liable to pay separate
court-fees.

38. Our answer to fourth question is
that the technical defect of misjoinder of
petitioners can, in the discretion of the
Court, be cured by each petitioner
paying separate court-fees."

10. In the instant case, we are of
the view that although the single writ
petition on behalf of the association
whether registered or unregistered can
be held to be maintainable but in the
present circumstances particularly in
view of the interim order, separate
Court fees are directed to be paid to
cure the defects, if any. The 291
members of the association disclosed in
Annexure-2
of
the
supplementary
affidavit dated 16th December 2007 are
directed to pay the Court fees separately
for each of them to cure the technical
defect of misjoinder of petitioners
which the petitioners shall file the Court
fees before the Registry and only under
such circumstances the certified copy
would
be
made
available
to
the
petitioners. The preliminary objections
raised by the respondent No.4 is
accordingly disposed off.

11. On coming to the merits of the
case
the
learned
counsel
for the
petitioners have submitted that the
change of nature and purpose of the user
vitiated the entire proceedings under the
Land Acquisition Act. The objections
under Section 5-A of the Act have not
been
disposed
off
by
the
State
1 All] Sunder Garden Welfare Association and another V. State of U.P. and others
363
Government-the acquiring body on the
ground of urgency and Section 17 of the
Act cannot be invoked in the present
circumstances since Section 5-A is
depriving the legal rights of the
petitioners under Article 300-A of the
Constitution. The land was surveyed for
the purpose of acquisition under the
scheme
of
Planned
Industrial
Development as far back as in 1997 but
the
notification
was
issued
under
Section 4 of the Act only on 16.4.2003
in respect with the opinion of the State
Government for acquiring the land
followed by Section 6 of the Act. Both
of them have independent scope but
while proceedings under Section 17 of
the Act depriving the petitioners of their
legal rights to file objections and be
heard followed by an inquiry while
going
through
satisfaction
of
the
urgency, two matters arise; first is
urgency to dispossess and the second is
urgency to deprive. Once there is no
ground of urgency apparently found to
be present then the burden lies on the
State to show as to why the objections
under Section 5-A of the Act are to be
ignored.
Secondly,
there
is
non
compliance of the consideration under
Section 6 of the Act while declaring that
the land is required for public purpose.
The public purpose has to be specified
which in the present case was for
Planned
Industrial
Development
required by respondent No.1 the U.P.
State
Industrial
Development
Corporation. It has been urged that the
abadi land being situated in Ghaziabad
which is hub of the residential area and
under the master plan the land is put for
residential purposes only and not for
industrial purpose. Thus, there being a
change in user all these facts could be
seen and looked into by the State
Government at the time when the
petitioners' objections under Section 5A of the Act would have been
considered. The industrial development
was the only public purpose for which
the land was acquired and not the
present scheme and no details had been
furnished as is required under Section 4
notification. The impugned notification
under Section 4 is thus assailed on, the
ground of vagueness in disclosing the
scheme. Reliance has been placed on
(1991) Vol 4 SCC 224 (page 230). In
para 12 of the said decision it has been
held that acquisition proceedings cannot
be allowed to be reopened and land
would be available to the owners.
Reliance is placed on 1998 (6) SCC-536
(Registrar, Cooperative Societies Vs.
Maharshi
Dayanand
Cooperative
Housing Society and others).

12. From the record it is found that
the land is no more required for
industrial purpose and has been made
subject
to
Ghaziabad
Development
Authority and placed with the master
plan of 2021 of Ghaziabad Development
Authority which has already taken
necessary
steps
for
proceeding
accordingly, as per minutes dated
20.6.2005, a translated copy in English
of the said minutes has been placed by
the learned counsel for the petitioners
before the Court, which is kept on
record. A reference has been made to
the booklet of Ghaziabad Master Plan
2020. Reliance has been placed on the
decision in the cases of 2004 (8) SCC
453, Para 16 and 30 (Union of India Vs.
Krishna Lal Arneja), 2004 (8) SCC 14,
Para 31 (Union of India Vs. Mukesh
Hans) and 2006 (3) UPLBEC 2484
(Kashama Sahkari Avas Samiti Ltd. Vs.
State of U.P.).
364 INDIAN LAW REPORTS ALLAHABAD SERIES [2008

13. We are of the view that once
the land was acquired and taken over by
the requiring body for the purposes of
industrial development, then it can be
public or commercial and residential
accommodation connected with the said
industrial development. but it cannot
enter
into
simple
housing
society
development scheme performing the
job of the development authorities and
Nagar
Nigams
etc.,
which
are
authorized
under
the
U.P.
Urban·Planning and Development Act,
1973 and other similar Acts.

14. We find that the notification
dated 16 4 2003 under, Section 4 read
with
Section
17
of
the
Act
is
unsustainable on the grounds of non
consideration of correct facts, therefore
the opinion of the Governor is not based
upon cogent material and therefore non
consideration of relevant facts such as
abadi land, as per report of the revenue
authorities etc" non compliance of due
procedures, as envisaged under Section
4 of the Act, i.e. non publication of
notification into two local newspapers
having wide circulations in area. The
contesting respondents alleged to have
published in Dainik Pralayankar and
Dainik Bhavi which have not been
proved to be widely circulated and
known in the area to make people aware
of acquisition proceedings. In such
circumstances, the notification dated
30.6.2003 under Section 6 read with
Section 17 is wrong, bad, unsustainable
and illegal and since the objections have
not
been
considered,
at
all,
the
satisfaction of the Governor is void ab
initio as the relevant factor regarding
use of the land is as abadi and not for
the agricultural use nor it was vacant
land.

15. We further find that the
UPSIDC is a company registered under
the provisions of the Companies Act
and the same is established for planned
industrial
development
as
per
Memorandum of Association, under
which the UESIDC-is not empowered to
develop
an
abadi
for
residential
purpose,specially when the land, in
question had already been declared
abadi land subject to the provisions of
Ghaziabad Development Authority. The
land acquired was abadi in 2001 under
Section 143 of the U.P.Z.A. and L.R.
Act where as the initiation of the
acquisition proceedings took place in
April 2003, as such this fact is
undisputed that the land in question was
abadi land much before the initiation of
the acquisition proceedings for which
no further enquiry is needed, as the
same is already on record and in view of
the same, the land in question was not
liable to be put under acquisition
proceedings, as held in 1998 (6) SCC
(Om Prakash Vs. State of U.P. and
others) and 2003 (9) SCC 542 (Ved
Prakash Vs. Ministry of Industry and
others).

16. Under the aforesaid facts and
circumstances
of
the
case,
the
Notification
No.203/77
-4-203-116Bha/99 Lucknow dated 16.4.2003 under
Section 4 of the Land Acquisition
(Annexure-8 to the writ petition) as far
as it relate to plot Nos.496, 497, 544,
501, 500, 578, 502, 504, 505, 498, 536,
538, 539 and 541 of village Harampur,
pargana
Loni,
Tehsil
and
District
Ghaziabad and the Gazette Notification
dated 30.6.2003 under Section 6 of the
Land Acquisition Act. 1894 are hereby
quashed.
1 All] M/s Ganga Plumbering Works V. Kanpur Development Authority and others
365

17. With the above observations,
the writ petition is allowed to the extent
indicated above. No order is passed as
to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.01.2008

BEFORE
THE HON'BLE H.L. GOKHALE, C.J.

Civil Misc. Arbitration Application No. 32
of 2004

M/s Ganga Plumbering Works, Kanpur

...Applicant
Versus

The Kanpur Development Authority and
others

...Respondents

Counsel for the Applicant:
Sri. Shubham Agrawal

Counsel for the Respondents:
Sri. Ajit Kumar Singh

Arbitration Act- Agreement clause 24provides the decision of Chief Engineer
to be final to all-No reference of
arbitration-application for appointment
of arbitrator-held not maintainable.

Held: Para 9 & 10

The situation as obtaining in the case of
Damodar Das (Supra) has thus been
clearly excluded from the category of
cases which were covered in Jagdish
Chander (Supra). The clause in the
present case does not state that the
decision of the Superintending Engineer
on the dispute will be final and binding.
His role is principally with respect to
designs, specifications and execution of
the work.

This being so, the present agreement
clause
cannot
be
held
to
be
an
arbitration clause. The application is
dismissed.
Case law discussed:
AIR 1980 Supreme Court 1522, 1996 2
SCC 216, JT 1990(10) SC 555, JT
2005(3) SC 558, (2007) 5 Supreme Court
Cases 28, JT 2007 (6) SC 375.

(Delivered by Hon'ble H.L. Gokhale, C.J.)

1. Heard Mr. Shubham Agrawal in
support of this application.

2. The applicant herein claims to
have constructed some 125 houses for
the
respondent-Kanpur
Development
Authority. The agreement amount for
the construction of the houses has been
paid over to the applicant but the
security deposit has been forfeited. It is
to claim this security amount that the
applicant wants the dispute to be
referred for arbitration. The applicant is
relying
upon
Clause-24
of
the
agreement between the parties, which
Clause reads as follows:

"Clause
24.
Except
where
otherwise specified in the contract the
decision of the Chief Engineer for the
time being shall be final, conclusive and
binding on all parties to the contract
upon all question relating to the
meaning of the specifications, designs,
drawings and instructions herein before
mentioned and as to the quality of
workmanship or materials used on the
work or as to any other question, claim,
right, matter or thing whatsoever in any
way arising out of or relating to the
contract,
designs,
drawings
specifications, estimates, instructions,
orders, or these conditions, or otherwise
concerning the works, or the execution
or failure to execute the same, whether
arising during the progress of the work