# Sunit Kumar Tyagi v. State of U.P. and others

- **Citation:** (2002) 2 ILRA 369
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-05-23
- **Case number:** Civil Misc. Writ Petition No. 3945 of 1998
- **Bench:** G.P. Mathur, R.P. Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sunit-kumar-tyagi-v-state-of-u-p-and-others-39870
- **Pages:** 9

## Headnote

Sri Ranjeet Saxena
Sri U.S. Awasthi
S.C.

Land
Acquisition
Act-
Section
48-
Interest of justice requires that the
respondents should take a quick decision
whether they would pursue with the
acquisition proceedings and would take
possession of the land or they would like
to withdraw from acquisition of the land
by
taking
appropriate
action
in
accordance with the section 48 of the
Act. The respondents are accordingly
directed
to
take
a
final
decision
expeditiously preferably within 4 months
in the matter whether they would still
proceed with the acquisition proceedings
and take possession of the land by
dispossessing those who had raised
constructions over the plot in dispute or
they
would
withdraw
from
the
acquisition of the land.

(Held in para 16).

If a decision is taken to withdraw from
acquisition of the land, appropriate steps
shall be taken by the government to
issue a notification in that regard. If,
however, the respondents decide not to
withdraw
from
the
acquisition
proceedings to its logical end, the award
for the acquired land under section 11 of
the Act shall be made expeditiously and
in accordance with law. Without being
influenced in any manner by the interim
order passed by this Court on 7.10.1998.
The Collector/Special Land Acquisition
Officer
would
also
adjudicate
the
question as to who is entitled to get the
compensation.
Case law referred.
1997 (1) SCC 134
1979 RD 226

## Text

2 All] Sunit Kumar Tyagi Vs. State of U.P. and others
369
(ii) When Gaon Sabha is declared to be a
town area on Nagar Panchayat then it
ceases to exist and is divested of all
properties.

(iii) Gaon Sabha Rithaura ceased to exist
on 10th April 1974 and did not hold
any property on the relevant date
under section 122-B (4F) of the ZA
Act, the petitioners did not acquire
any rights over the land in dispute.

(iv) The petitions have no merits and are
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.05.2002

BEFORE
THE HON'BLE G.P. MATHUR, J.
THE HON'BLE R.P. MISRA, J

Civil Misc. Writ Petition No. 3945 of 1998

Sunit Kumar Tyagi

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri W.H. Khan

Counsel for the Respondents:
Sri Ranjeet Saxena
Sri U.S. Awasthi
S.C.

Land
Acquisition
Act-
Section
48-
Interest of justice requires that the
respondents should take a quick decision
whether they would pursue with the
acquisition proceedings and would take
possession of the land or they would like
to withdraw from acquisition of the land
by
taking
appropriate
action
in
accordance with the section 48 of the
Act. The respondents are accordingly
directed
to
take
a
final
decision
expeditiously preferably within 4 months
in the matter whether they would still
proceed with the acquisition proceedings
and take possession of the land by
dispossessing those who had raised
constructions over the plot in dispute or
they
would
withdraw
from
the
acquisition of the land.

(Held in para 16).

If a decision is taken to withdraw from
acquisition of the land, appropriate steps
shall be taken by the government to
issue a notification in that regard. If,
however, the respondents decide not to
withdraw
from
the
acquisition
proceedings to its logical end, the award
for the acquired land under section 11 of
the Act shall be made expeditiously and
in accordance with law. Without being
influenced in any manner by the interim
order passed by this Court on 7.10.1998.
The Collector/Special Land Acquisition
Officer
would
also
adjudicate
the
question as to who is entitled to get the
compensation.
Case law referred.
1997 (1) SCC 134
1979 RD 226

(Delivered by Hon'ble G.P. Mathur, J.)

1. This writ petition under Article
226 of the Constitution has been filed
praying that a writ, order or direction in
the nature of mandamus be issued
commanding the respondents to pay 80
percent of the estimated amount of the
compensation as provided by section 17
(3-A) of Land Acquisition Act to the
petitioner in respect of plots no. 947 and
1019/2 of village Makanpur, Tehsil Dadri,
district NOIDA, along with 24 per cent
interest from 13.11.1997, when the
respondents took possession over the
aforesaid plots. The writ petition was filed
on
29.1.1998
and
subsequently
on
27.1.1999, an amendment application was
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
370
moved wherein a prayer has been made to
amend the body of the writ petition and
also to add another relief that a writ, order
or direction in the nature of mandamus be
issued commanding the respondents no. 2
and 3 to make an award in respect of the
petitioner's land under section 11 of the
Land Acquisition Act within the shortest
possible time fixed by the Court.

2. The case set up in the writ petition
is
as
follows.
The
petitioner
was
bhumidhar in possession of plot no. 947
area 1 bigha 16 biswas and plot no.
1019/2 area 2 Bighas 3 Biswas situate in
village Makanpur, Pargana Loni, Tehsil
Dadri, district Ghaziabad. Originally plot
no. 1019/2 had an area of 2 bigha 14
biswas but the petitioner transferred 11
biswas area of this plot by a power of
attorney to Rameshwar Prasad. The State
Government issued a notification under
section 4 (1) read with section 17 of the
Land Acquisition Act (hereinafter referred
as the Act) on 20.6.1995 for acquiring
large number of plots in village Makanpur
for a public purpose namely, for Planned
Industrial
Development
in
district
Ghaziabad. This was followed by a
notification under section 6 of the Act,
which was published on 27.7.1995. The
notification
mentioned
that
the
Government was satisfied that the case
was one of urgency and the provisions of
section 17 (1) of the Act were applicable
to the same. Accordingly, a direction was
issued to the Collector of Ghaziabad to
take possession of the land mentioned in
the Schedule annexed to the notification
after expiry of 15 days from the date of
publication of the notice mentioned in
sub- section (1) of section 9 though no
award under section 11 of the Act had
been made. Thereafter, the notice under
section 9 (1) of the Act was issued on
15.11.1995 and the possession over the
aforesaid two plots was taken over on
13.11.1997. The petitioner approached
respondent no. 2 several times but 80
percent of the estimated amount of the
compensation was not paid to him which
he was entitled to get under section 17 (3A) of the Act.

3. The main counter affidavit on
behalf of the respondents has been filed
by Jagdamba Prasad Gupta, Tehsildar,
Gautam Budh Nagar and the case set up
therein is that plot nos. 947 and 1019/2 of
village Makanpur, Pargana Loni, Tehsil
Dadri district Ghaziabad, were previously
recorded as property of Gram Samaj,
Makanpur. The petitioner filed a suit
under section 229-B of U.P. Z.A. & L.R.
Act, in which he was declared as
Bhumidar of the plots and thereafter his
name was recorded over the said plots in
the revenue records. The notification
under section 4 (1) read with section 17 of
the Act was issued on 10.4.1995 for
acquiring the land for a public purpose
namely,
for
Planned
Industrial
Development through NOIDA. After the
publication of the notice in the locality
and also the publication of the notification
under section 6 of the Act dated
27.7.1995, which was published in the
Gazette on 8.8.1995, the petitioner
executed a power of attorney with regard
to 11 biswas area in favour of Lokesh
Sharma son of Ram Bharose Sharma to
manage and transfer by way of sale the
aforesaid plot. On the basis of the
aforesaid power of attorney, latter on
Lokesh Sharma executed a sale deed of
11 Biswas area of plot no. 1019/2 on
8.3.1996 in favour of Rameshwar Prasad.
The aforesaid sale deed had been
executed after the notification under
section 4 (1) and 6 of the Act had been
2 All] Sunit Kumar Tyagi Vs. State of U.P. and others
371
published. A joint survey of plots no. 947
and 1019/2 was conducted by Vijay
Kumar, Amin, Land Acquisition, NOIDA,
Jagveer Singh, Lekhpal, NOIDA, Ram
Singh, Kannoongo, NOIDA and Naib
Tehsildar, NOIDA on 13.8.1997 and it
was found that 51 persons had raised
constructions over plot no. 947 and 23
persons had raised constructions over plot
no. 1019/2 and were residing therein. A
notice was issued on 11.11.1997 by
Additional Collector (Land Acquisition),
NOIDA to the petitioner directing him to
remove the illegal encroachments from
the acquired land. It was mentioned in the
notice that the 80 percent of the estimated
amount of the compensation would be
paid to him only after he had removed all
the illegal encroachments from the
aforesaid plots. A survey was conducted
on 14.7.2000 and 15.7.2000 and at that
time more than 25 persons who have
raised constructions over the disputed plot
gave a written application to the A.D.M.,
Gautam Budh Nagar stating that they had
purchased different portions of the land
from Rohtash to whom a power of
attorney had been executed by the
petitioner Sunit Kumar Tyagi on 4.3.1989
and in case they were dispossessed they
would be completely ruined. They further
prayed that no compensation should be
paid to the petitioner Sunit Kumar Tyagi.
A copy of this application has been filed
as Annexure -5 and a copy of the report of
the ADM dated 18.7.2000 has been filed
as Annexure CA -6 to the counter
affidavit.
In
his
report
the
ADM
mentioned that the entire land is now
covered by the constructions raised by
many people and the same can not be of
any use of NOIDA. It is averred in para 8
of the counter affidavit that the inspection
report dated 13.8.1997, which is annexed
alongwith Annexure CA -4 shows that the
construction had been raised in the entire
area which had been acquired. A copy of
the power of attorney executed by the
petitioner Sunit Kumar Tyagi with regard
to plot no. 947 in favour of Rohtash on
4.3.1989 by which he empowered the
later to do anything on the land namely, to
do plotting on the same and to sell it or to
execute any agreement with regard to the
same or to carry on any other kind of
activity or to move applications and a
copy of similar power of attorney
executed by the petitioner in favour of
Lokesh Sharma for plot no. 1019/2 on
22.2.1996 have been filed as Annexure
CA-7 to the counter affidavit. It is averred
in para 11 that when the symbolic
possession of the aforesaid plots was
delivered to NOIDA, the same was done
with the construction standing over the
same. In para 12, it is averred that the
petitioner had illegally transferred plot
nos. 947 and 1019/2 to various persons
who are still in occupation of the same
and, therefore, he is not entitled to any
compensation. In compliance of an
interim order passed by the High Court on
7.10.1998, the petitioner has been paid
compensation amounting to Rs.8,94,700/-
. In para 13, it is averred that the
petitioner had not come to Court with
clean hands and he had concealed the
material fact that he had sold the plots in
dispute to many persons and that he was
not in possession over the land on the date
when
a
symbolic
possession
was
delivered to NOIDA.

4. A Counter affidavit sworn by
Narendra Pal Sharma, Naiyab Tehsildar,
has also been filed by NOIDA, which has
been impleaded as respondent no. 4 to the
writ petition. The case set up therein is
that
after
acquisition
of
the
land
compensation amount had been paid by
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
372
NOIDA
to
District
Magistrate,
Ghaziabad. NOIDA was given possession
on papers only on 13.11.1997. The
petitioner had transferred the land in
dispute to a large number of persons who
had raised constructions. The NOIDA
(respondent no. 4) had requested the
District
Magistrate,
Ghaziabad
on
6.1.1998 to remove encroachment and
unauthorized constructions existing over
the plot in dispute and to deliver actual
physical possession of the same to it.
Even
before
possession
had
been
delivered to NOIDA on paper, it had
written to the District Magistrate to get
the unauthorized constructions removed
and
to
deliver
it
actual
physical
possession of the land. It is further
pleaded that the petitioner is not entitled
to any compensation as he had sold the
land to more than 53 persons who had
raised constructions over the same.

5. In the rejoinder affidavit filed by
the petitioner, it has been stated that the
possession was taken over by NOIDA on
13.11.1998 and the petitioner had not
transferred land of plot no. 947 to 51
persons nor of plot no. 1019/2 to 23
persons as alleged in the counter affidavit.
It is also pleaded that few encroachments
and illegal constructions were created by
the NOIDA authorities.

6. The record shows that before the
admission of the writ petition time for
filing counter affidavit was granted to the
learned State Counsel by the order dated
3.2.1998. The matter was heard on
7.10.1998 and till then no counter
affidavit had been filed. On the said date
an order was passed directing the
respondents to pay 80 per cent of the
estimated amount of compensation to the
petitioner within six weeks. In pursuance
of this order, Rs.8,94,700/- was paid to
the petitioner. The writ petition was
admitted thereafter on 23.3.1999.

7. Sri W.H. Khan, learned counsel
for the petitioner has submitted that the
State Government has acquired the
petitioner's plots by issuing notifications
under section 4(1) and 6 of the Act and,
therefore, the Collector is bound to make
an award under section 11 of the Act and
to pay compensation to him. He has
referred to Ramniklal N. Bhutta and
another versus State of Maharashtra and
others, (1997) 1 SCC 134, wherein it has
been held that once a notification under
section 4 and a declaration under section
6 of the Act is made, the Land
Acquisition Officer has no power to
decline to pass the award in respect of
land(s) notified either partially or holly. It
has been further held that unless and until
the lands are de notified under and in
accordance with section 48, the Land
Acquisition Officer has to pass an award
with respect to the lands notified.

8. Learned standing counsel has on
the other hand submitted that the
requirement of law under section 17 (3-A)
of the Act is that before taking possession
of any land, the Collector has to tender 80
per cent of the estimated amount of
compensation to the persons interested
and entitled thereto and it has to be paid
to them unless prevented by some one or
more of the contingencies mentioned in
section 31 (2) of the Act. It has been
urged that a large number of persons to
whom the petitioner had transferred the
land and who had raised construction over
the same had lodged a serious protest that
the compensation should not be paid to
the petitioner as in the event they were
dispossessed they will be completely
2 All] Sunit Kumar Tyagi Vs. State of U.P. and others
373
ruined. A copy of the application given by
these persons to the District Magistrate,
Gautam Budh Nagar, on 17.7.2000 has
been filed as Annexure CA -5 to the
counter affidavit. A copy of the report
dated 18.7.2000 submitted by ADM
(Land Acquisition) to the Rajashav
Adhikari,
NOIDA,
wherein,
it
is
mentioned that applications had been
given
by
those
who
have
raised
constructions and also a video cassette
showing the constructions on the spot was
made available to him has been filed as
Annexure CA-6 to the counter affidavit of
the State Government. It is, thus, urged
that there is a dispute as to the title to
receive
the
compensation.
Learned
standing counsel has further submitted
that if the possession is taken after
demolition of the structures, the real
sufferer
would
be
those
whose
constructions would be demolished. The
petitioner had already earned huge
amount of money by transferring plots to
these persons and in these circumstances
no compensation should be paid to the
petitioner.

9. There is another aspect of the case
to which attention of the Court has been
drawn by the learned standing counsel.
The petitioner claims that he had been
declared as bhumindar of the plots in
dispute by virtue of a decree passed in his
favour in a suit instituted by his father
under section 229-B of U.P.Z.A. & L.R.
Act. A Division Bench of this Court had
passed order on 20.2.2001 and then on
12.3.2001 directing the petitioner to file a
certified copy of the judgment and decree
which had been passed in his favour. In
pursuance of the said direction, the
petitioner filed photocopy of the judgment
of Second Appeal No. 242 (z) of 1982-83
(Ram Kumar versus State) decided by the
Board
of
Revenue,
Allahabad
on
13.3.1989. Though the direction issued
was for filing a certified copy of the
judgment but only a photocopy of the
judgment and decree have been filed. In
the judgment the name of the appellant is
mentioned as Ram Kumar while in the
decree the name of the parties is
mentioned as Sunit Kumar Tyagi versus
State of U.P. The petitioner Sunit Kumar
Tyagi claims to be son of Ram Kumar.
The attention of the Court has also been
drawn to certain facts appearing in the
judgment which are as under.

10. The plaintiff Ram Kumar
instituted a suit under section 229-B of
UPZA & LR Act against (1) State of UP
and (2) Gaon Sabha, Makanpur, for a
declaration that he is sirdar of the land in
dispute. The plea taken in the plaint was
that on account of his continuous adverse
possession he had matured his rights and
had perfected his title under section 210
of UPZA & LR Act. The suit was
contested by the defendants on the ground
that the land was banjar land (barren and
uncultivated land) which vests in the
Gaon Sabha and the plaintiff had forcibly
occupied the land for the first time in
1380 fasli and, as such, there was no
question of his maturing rights by adverse
possession under section 210 of UPZA &
LR Act. The Additional Sub Divisional
Officer dismissed the suit on 29.12.1975.
The appeal preferred by the plaintiff was
also
dismissed
by
the
Additional
Commissioner, Meerut on 10.6.1983.
Thereafter, the plaintiff preferred a
Second Appeal before the Board of
Revenue which lies on same grounds as
that of section 100 C.P.C. This Second
Appeal was allowed by the Board of
Revenue on 13.3.1989. It appears from
the judgment that the name of the plaintiff
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
374
was not found recorded in the Khasra
continuously and it was urged by DGE
(Revenue) that no right could accrue in
favour of the plaintiff. In the judgment
there is an observation to the following
effect.

"......The omission of the plaintiff's
name in the years between 1365 to 1375
fasli seems to be either clerical or
intentional and as such omission can not
cause any adverse effect on his title....."

11. It is not understandable as to
how some one can mature rights by
adverse possession if his name is not
recorded continuously for a period of ten
years in the revenue records. The
judgment further shows that the learned
DGC (Revenue) had argued that on
account of the amendments made in
UPZA & LR Act in 1976 and 1977, the
period of limitation prescribed there under
for filing a suit against Gaon Sabha had
been
removed
altogether
and,
consequently, no rights could accrue on
Gaon Sabha land by adverse possession.
Reliance had also been placed on a
decision rendered by the Allahabad High
Court in Chattar Singh Versus Sahayak,
1979 RD 226, where this point had been
examined threadbare and it was held that
on account of amendments in the Act, no
sirdari rights can accrue over Gaon Sabha
land by adverse possession. However, the
Board of Revenue brushed aside this
argument and allowed the Second Appeal
and decreed the suit and declared the
plaintiff to be bhumidar of the land in
dispute. To say the least, the Board of
Revenue could not have brushed aside an
authority of High Court where this point
had been specifically. The period of
limitation of filing a suit by the Gaon
Sabha has been amended several times
and in such a manner that no one can
mature rights over the Gaon Sabha land
by
adverse
possession.
The
last
amendment which was made by U.P.
Land Laws (Amendment) Act, 1976,
before
expiry
of
the
period
then
prescribed for filing of the suit, reads as
follows:

"For Section 210 of the principal
Act, the following section shall be
substituted and be deemed always to have
been substituted, namely:-

"210. If a suit for eviction from any
land under Section 209 is not instituted by
a bhumidhar, sirdar or asami, or a decree
for eviction obtained in any such suit is
not executed by him, within the period of
limitation provided for the institution of
such suit or the execution of such decree,
as the case may be, the person taking or
retaining possession shall --

(i) where the land forms part of the
holding of a bhumidhar or sirdar, become
a sirdar of such land, and the rights, title
and interest of an asami, if any, in such
land shall be extinguished.

(ii) where the land forms part of the
holding of an asami, on behalf of the
Gaon Sabha, become an asami thereof
holding from year to year."

12. The result of this amendment
was that the effect of non -filing of the
suit by the Gaon Sabha as contemplated
in Section 209 (1) (b) of the Act, which
was provided in sub-section (ii) of Section
210, was taken away. It has been held by
several decisions of this court that after
the aforesaid amendment a person in
possession for 12 years over the property
of a Gaon Sabha would not acquire sirdari
2 All] Sunit Kumar Tyagi Vs. State of U.P. and others
375
rights. It has been further held that the
effect of amendment having been given
retrospective
effect
means
that
a
trespasser even from July, 1952, could not
acquire
sirdari
rights
on
the
land
belonging to Gaon Sabha (see Bhurey Vs.
Board
of
Revenue,
1984
Revenue
Decision 294 and Chatar Singh Vs.
Sahayak
Sanchalak,
Chakbandi,
UP
Lucknow and others, 1979 Revenue
Decision 226). It is, therefore, obvious
that the petitioner could not have matured
any kind of rights over the Gaon Sabha
land. However, the Board of Revenue by
a strange process of reasoning held that
the petitioner had matured rights by
adverse possession and had consequently
become sirdar and thereafter bhumidar of
the land.

13. The averments made in the
counter affidavit filed on behalf of the
State Government and also by NOIDA
show that a notification dated 10.4.1995
under section 4(1) of the Act was
published in the Gazettee on 20.5.1995.
Public notice of the notification was given
in the locality by beat of drums on
20.6.1995. Thereafter, a declaration under
section 6 of the Act was made on
27.7.1995, which was published in the
Gazettee on 8.8.1995. The petitioner had
executed a registered power of attorney
with regard to plot no. 947 in favour of
Rohtash son of Nakli Singh on 4.3.1989
(Annexure CA-7 to the counter affidavit).
By this he gave right to Rohtash to do any
thing on the land including plotting,
selling of plots, entering into agreement
for sale, to deliver possession or to move
application etc. This power of attorney
was executed more than six years before
the notification under section 4 was
published in the Gazette. He executed
another similar power of attorney with
regard to plot no. 1019/2 in favour of
Lokesh Kumar Sharma, son of Ram
Bharose Sharma on 22.2.1996, who in
turn executed a sale deed in favour of
Rameshwar Prasad on 8.3.1996. It is
specifically averred in para 6 of the
counter affidavit that on 13.8.1997, a joint
survey of the aforesaid plots was made by
Vijay Kumar Amin, Land Acquisition,
NOIDA,
Jagveer
Singh,
Lekhpal,
NOIDA, Ram Singh, Kanoongo, NOIDA
and also by Naiyab Tehsildar, NOIDA
and they found that 51 persons were in
occupation of different portions of plot
no. 947 (area varying from 50 sq. yds, to
450 sq. yds.) and had made construction
over the same. Similarly, 23 different
persons were in occupation of different
portions of plot no. 1019/2 (area varying
from 50 sq.yds. to 200 sq. yds.) and had
made constructions over the same. A copy
of this report dated 13.8.1997 has been
filed as part of Annexure -4 to the counter
affidavit. Thereafter, a Kabja Parivartan
Adhikar Patra (document authorising
transfer of possession) was executed on
13.12.1997. When the ADM (Land
Acquisition) NOIDA and other officials
went to the spot on 17.7.2000, the persons
in possession of the plots gave application
in writing that they had purchased small
area in plot no. 947 and 1019/2 from the
power of attorney holder after paying
heavy
amount
and
had
made
constructions of their houses. They also
submitted photocopies of the registered
sale deed executed in their favour and
also a video cassette showing the
constructions standing on the spot. In the
application
they
prayed
that
no
compensation should be paid to the
petitioner Sunit Kumar Tyagi as he had
already sold the land to them. A copy of
this
application
has been filed as
Annexure CA -5 and a copy of the report
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
376
of the Amin (Land Acquisition) has been
filed as Annexure CA -6 to the counter
affidavit. It is noteworthy that the
petitioner had executed power of attorney
in favour of Rohtash on 4.3.1989 more
than 6 years before the notification under
section 4 (1) was published. Thereafter he
executed sale deeds in favour of 51
persons of plots of different sizes and now
51 houses are standing over the same. The
power of attorney with regard to 1019/2
was also executed within six months of
the publication of the declaration under
section 6 of the Act. Houses belonging to
23 persons have been constructed over
this
plot.
The
document
regarding
delivery of possession dated 13.11.1997
has been described as Kabja Parviartan
Adhikar
Patra,
which
means
an
authority to transfer possession. It is clear
that actual physical possession over the
plot was never taken by the State or by
the NOIDA. On the contrary, a document
showing symbolic delivery of possession
has been executed. The material filed with
the counter affidavit shows that the entire
acquired
land
is
covered
by
the
constructions raised by many people and
there is absolutely no possibility of the
State
or
NOIDA
getting
physical
possession over the land until the
constructions standing over the same are
demolished.

14. The petitioner can claim
compensation for the acquired land
provided he was owner of the same on the
date of publication of notification under
section 4 (1) of the Act. So far as plot no.
947 is concerned, the record shows that he
had already executed a power of attorney
with regard to the said plot in favour of
Rohtash, son of Nakli Singh more than six
years earlier on 4.3.1989 who in turn
executed sale deeds in favour of large
number
of
persons.
Therefore,
the
petitioner can not claim any right to get
compensation for plot no. 947.

15. So far as plot no. 1019/2 is
concerned, the petitioner executed power
of attorney in favour of Lokesh Kumar
Sharma on 22.2.1996 i.e. about six
months after publication of declaration
under section 6 of the Act. Lokesh Kumar
Sharma sold the plot to Rameshwar
Prasad on 8.3.1996 who then sold
different portions thereof to various
people. The petitioner played a fraud by
executing the power of attorney after the
publication of the notification under
section 4 (1) and 6 of the Act whereby a
large number of persons, who were
ignorant of the aforesaid notifications,
purchased different portions of the plot
and raised construction over the same.
The petitioner by his fraudulent conduct
has frustrated the acquisition proceedings.
The persons who purchased land of plot
no. 1019/2 have been cheated by the
fraudulent conduct of the petitioner. The
reliefs claimed in the writ petition are that
the writ petitioner should be paid 80 per
cent
of
the
estimated
amount
of
compensation under section 17 (3-A) of
the Act and the respondents may be
directed to make an award of the acquired
land under section 11 of the Act. The
petitioner succeeded in getting an interim
order
where
under
he
was
paid
Rs.8,94,700/- as interim compensation.
He has also made money by transferring
the same land to various persons. There
can be no manner of doubt that the
petitioner had played great fraud and he
wants compensation for the same land
which he has sold to various people. The
proceedings under Article 226 of the
Constitution are equitable in nature and
they are not meant to aid and help a
2 All] Dinesh Chandra Vs. Bal Kishan Misra and others
377
dishonest person. In our opinion, on
account of the fraudulent act of the
petitioner, the relief's claimed by him in
the writ petition can not be granted and he
is not entitled to any compensation.

16. In order to get possession of the
acquired land, the authorities will have to
demolish more than 74 houses, which is
well-nigh impossible looking to the
ground realities. There should not be a
stalemate in the matter. The document of
possession - Kabja Parivartan Adhikar
Patra executed on 13.11.1997 merely
gave an authority to NOIDA to take
possession of the land. However, it is
fully established that actual physical
possession over the land has not been
taken either by the State or by the NOIDA
on account of the fact that about 74
houses are standing over the same which
have been constructed by the transfers of
the petitioner. So long as actual physical
possession has not been taken, it is open
to the State to withdraw from the
acquisition of any land in view of section
48 of the Act. The persons who have
raised constructions should not be left
under a constant fear and threat that their
houses can be demolished and physical
possession of the land may be taken.
Interest of justice requires that the
respondents should take a quick decision
whether they would pursue with the
acquisition proceedings and would take
possession of the land or they would like
to withdraw from acquisition of the land
by
taking
appropriate
action
in
accordance with section 48 of the Act.
The respondents are accordingly directed
to take a final decision expeditiously
preferably within 4 months in the matter
whether they would still proceed with the
acquisition
proceedings
and
take
possession of the land by dispossessing
those who had raised constructions over
the plot in dispute or they would
withdraw from the acquisition of the land.
If a decision is taken to withdraw from
acquisition of the land, appropriate steps
shall be taken by the government to issue
a notification in that regard. If, however
the respondents decide not to withdraw
from the acquisition and take the
acquisition proceedings to its logical end,
the award for the acquired land under
section 11 of the Act shall be made
expeditiously and in accordance with law.
Without being influenced in any manner
by the interim order passed by this Court
on 7.10.1998. The Collector/Special Land
Acquisition Officer would also adjudicate
the question as to who is entitled to get
the compensation.

17. Subject to the directions made
above, the writ petition is dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.5.2002

BEFORE
THE HON'BLE A.K. YOG, J.

Second Appeal No. 417 of 2002

Dinesh Chandra...Defendant/Appellant
Versus
Bal Kishan Misra and others
 ...Defendants/Proforma Respondents

Counsel for the Appellant:
Sri Dhruva Narayana
Sri Bala Krishna Narayana

Counsel for the Respondents:

U.P.
Urban
Building
(Regulation
of
Letting, Rent and Eviction) Act, 1972section 3, (U.P. Act No. 13 of 1972)- such
married daughters, who make no claim