# Vijaypal & Ors v. State of U.P. & Ors

- **Citation:** (2021) 7 ILRA 672
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-06-17
- **Case number:** Writ C No. 11445 of 2021
- **Bench:** Sanjay Yadav, C.J. Prakash Padia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijaypal-ors-v-state-of-u-p-ors-47252
- **Pages:** 9

## Headnote

A. Civil Law - Land acquisition - Land
Acquisition Act, 1894: Section 16, 17(1),
48(1), 48(2).

Constitution of India: Article 14 - Scope
- There is no concept of negative
equality u/Art. 14. If any wrong order
was passed earlier, petitioners can't
seek the benefit of the same. The concept
of equality as envisaged under Art. 14 is a
positive concept which cannot be enforced in
a negative manner. When any authority is
shown to have committed any illegality or
irregularity in favour of any individual or
group of individuals, others cannot claim the
same illegality or irregularity on ground of
denial thereof to them. Similarly wrong
judgment passed in favour of one individual
does not entitle others to claim similar
benefits. (Para 11 to 14)

B. Land Acquisition Act, 1894 - Section
48 - Once possession has been taken
and land has not been utilised, there
cannot
be
withdrawal
from
the
acquisition of any land. Land cannot be
restituted to the owner after the stage
of possession is over. (Para 17)

U/s 48 of the 1894 Act, withdrawal of the land
acquisition proceedings was permissible only if
the possession has not been taken u/s 16 or
17(1). (Para 15 to 20)

It appears from perusal of the averment made
in the present writ petition as well as in the
representations that petitioners have only
prayed for release of their land from acquisition
proceedings. No averment whatsoever has been
in
the
entire
writ
petition
or
in
the
representations made before the Authorities
that the possession of the land has not been
taken. (Para 22)
7 All. Vijaypal & Ors. Vs. State of U.P. & Ors.
673
In view of the aforesaid, the Hon'ble Court
opined that the possession of the land has been
taken by the Authorities. Once the possession
has been taken, the petitioners are not entitled
for any benefit as provided u/s 48(2) of the Act
of 1894. (Para 23)

Writ petition dismissed.(E-3)

Precedent followed:

## Text

672 INDIAN LAW REPORTS ALLAHABAD SERIES
proceedings
are
applicable
in
case
authorities have failed due to their inaction
to take possession and pay compensation
for five years or more before the Act of
2013 came into force, in a proceeding for
land acquisition pending with concerned
authority as on 1.1.2014. The period of
subsistence of interim orders passed by
court has to be excluded in the computation
of five years.

366.9. Section 24(2) of the Act of
2013 does not give rise to new cause of
action to question the legality of concluded
proceedings of land acquisition. Section 24
applies to a proceeding pending on the date
of enforcement of the Act of 2013, i.e.,
1.1.2014. It does not revive stale and timebarred claims and does not reopen
concluded
proceedings
nor
allow
landowners to question the legality of mode
of taking possession to reopen proceedings
or mode of deposit of compensation in the
treasury instead of court to invalidate
acquisition."

15. In view of the above, the writ
petition is wholly misconceived and abuse
of process of law, as successive writ
petitions are being filed challenging the
same acquisition proceedings. Thus, the
writ petition is hereby dismissed with cost
of Rs. 25,000/.
----------
(2021)07ILR A672
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.06.2021

BEFORE

THE HON'BLE SANJAY YADAV, C.J.
THE HON'BLE PRAKASH PADIA, J.

Writ C No. 11445 of 2021

Vijaypal & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Manish Kumar, Sri Manoj Kumar

Counsel for the Respondents:
C.S.C., Anjali Upadhya, Sri Ramendra
Pratap Singh

A. Civil Law - Land acquisition - Land
Acquisition Act, 1894: Section 16, 17(1),
48(1), 48(2).

Constitution of India: Article 14 - Scope
- There is no concept of negative
equality u/Art. 14. If any wrong order
was passed earlier, petitioners can't
seek the benefit of the same. The concept
of equality as envisaged under Art. 14 is a
positive concept which cannot be enforced in
a negative manner. When any authority is
shown to have committed any illegality or
irregularity in favour of any individual or
group of individuals, others cannot claim the
same illegality or irregularity on ground of
denial thereof to them. Similarly wrong
judgment passed in favour of one individual
does not entitle others to claim similar
benefits. (Para 11 to 14)

B. Land Acquisition Act, 1894 - Section
48 - Once possession has been taken
and land has not been utilised, there
cannot
be
withdrawal
from
the
acquisition of any land. Land cannot be
restituted to the owner after the stage
of possession is over. (Para 17)

U/s 48 of the 1894 Act, withdrawal of the land
acquisition proceedings was permissible only if
the possession has not been taken u/s 16 or
17(1). (Para 15 to 20)

It appears from perusal of the averment made
in the present writ petition as well as in the
representations that petitioners have only
prayed for release of their land from acquisition
proceedings. No averment whatsoever has been
in
the
entire
writ
petition
or
in
the
representations made before the Authorities
that the possession of the land has not been
taken. (Para 22)
7 All. Vijaypal & Ors. Vs. State of U.P. & Ors.
673
In view of the aforesaid, the Hon'ble Court
opined that the possession of the land has been
taken by the Authorities. Once the possession
has been taken, the petitioners are not entitled
for any benefit as provided u/s 48(2) of the Act
of 1894. (Para 23)

Writ petition dismissed.(E-3)

Precedent followed:

1. St. of Bihar Vs Kameshwar Prasad Singh, AIR
2000 SC 2306 (Para 11)

2. Gursharan Singh & ors. Vs NDMC & ors.,
1996 (2) SCC page 459 (Para 12)

3. Secretary, Jaipur Development Authority,
Jaipur Vs Daulat Mal Jain & ors., 1997 (1) SCC
page 35 (Para 13)

4. State of Haryana & ors. Vs Ram Kumar Mann,
1997 (3) SCC page 321 (Para 14)

5. Chandragauda Ramgonda Patil Vs St. of
Mah., (1996) 6 SCC 405 (Para 18)

6. C. Padma Vs St. of T.N., (1997) 2 SCC 627
(Para 19)

7. Sita Ram Bhandar Society Vs State (NCT of
Delhi), (2009) 10 SCC 501 (Para 20)

8. Leelawanti & ors. Vs St. of Har. & ors.,
(2012) 1 SCC 66 (Para 21)

(Delivered by Hon'ble Prakash Padia, J.)

1. Matter is taken up through video
conferencing.

2. The petitioners have preferred the
present petition Under Article 226 of the
Constitution of India inter-alia with the
following prayer:-

"I. Issue a writ, order or direction
in the nature of writ of mandamus directing
the respondents to release the Gata No.
89/0.560 hectare and 92/0.0492 hectare
from
the
Land
Acquisition,
Village
Thapkhera, Pargana and Tehsil Dadri,
District Gautam Buddha Nagar.

II. Issue a writ, order or direction
in the nature of writ of mandamus directing
the respondent no. 2 District Magistrate,
District Gautam Buddha Nagar to decide
the application dated 15.02.2021 of the
petitioners which is still pending.

III. Issue any other suitable writ,
order or direction, which this Hon'ble
Court may deem fit and proper in the
present circumstances of the case."

3. Facts in brief as contained in the
writ petition are that the petitioners are
recorded tenure holders in respect of their
land situated at Gata No. 89 area 0.0560
hectare and Gata No. 92 area 0.0492
hectare situated in village Thapkhera,
Pargana and Tehsil Dadri, District Gautam
Buddha Nagar. It is stated in paragraph-5 of
the writ petition that applications dated
20.05.2010 and 05.06.2010 were moved by
the petitioners before the Chief Executive
Officer,
Greater
Noida,
Industrial
Development Authority, District Gautam
Buddha Nagar/respondent no. 3 stating
therein that the petitioners are farmers, the
land which was acquired be returned to
them as has been returned by the Authority
in favour of other similarly situated
persons.

4. It is further stated in the writ
petition that since no action was taken on
the
aforesaid
representation,
a
fresh
representation was made by the petitioners
on
15.02.2021
before
the
District
Magistrate, District Gautam Buddha Nagar
with the same prayer.
674 INDIAN LAW REPORTS ALLAHABAD SERIES

5. In this view of the matter, it is
argued that the land which was acquired by
the Authorities be released in favour of the
petitioners as has been done in respect of
Gata No. 95, 88, 102 and 104. It is further
argued that the petitioners belong to jatav
caste and they are doing their farming upon
this land. It is further argued that except the
aforesaid land, the petitioners have no other
land for farming as such the land which
was acquired by the respondent be released
in their favour.

6. In this view of the matter, it is
argued that the respondent be directed to
decide the representation submitted by the
petitioners.

7. On the other hand, it is argued by
the counsel for the respondents that the
petitioners are not entitled for the relief as
prayed for by them in the present petition.
It is further argued that the writ petition is
misconceived and the same is liable to be
dismissed.

8. Heard counsel for the parties and
perused the record.

9. It appears from perusal of the
record that the land of the petitioners were
acquired by the respondents. In order to
release
the
same
from
Acquisition
proceedings,
representations
were
submitted by the petitioners and since no
action was taken on the same, the
petitioners have preferred the present
petition.

10. Nothing has been stated in the
entire
writ
petition
that
when
the
notifications were issued by the respondent
as per the procedure prescribed under the
Land Acquisition Act, 1894. It further
reveals from perusal of the record that no
action whatsoever has been taken by the
petitioners to release their land for more
than 10 years from the date of the
acquisition of land, in so far as the
representations made in the year 2010 are
concerned. It is clear from perusal of the
remarks made on the same that the same
was
submitted
personally
with
the
authorities but the copies of the receiving
were never provided to the petitioners. It
further reveals that after more than 10 years
a fresh representation was made by the
petitioners on 15.02.2021 and immediately
thereafter they approach this Court by
filing the present petition. Nothing has been
stated in the entire writ petition that what
action has been taken by the petitioners for
about 10 years for releasing of their land.

11. In this view of the matter, the
Court is of the opinion that the writ petition
is liable to be dismissed on the ground of
latches. In so far as the arguments raised by
the counsel for the petitioners that the land
which was acquired by the authorities
along-with the petitioners were released by
the Authorities and as such the petitioners
are also entitled for the similar benefit, it is
clear that if any wrong order was passed
earlier, petitioners can't seek the benefit of
the same. There is no concept of negative
equality
under
Article
14
of
the
Constitution of India. The Hon'ble Supreme
Court in the case of State of Bihar v
Kameshwar Prasad Singh AIR 2000 SC
2306 held that:-

"The concept of equality as
envisaged
under
Article
14
of
the
Constitution is a positive concept which
cannot be enforced in a negative manner.
When any authority is shown to have
committed any illegality or irregularity in
favour of any individual or group of
individuals other cannot claim the same
7 All. Vijaypal & Ors. Vs. State of U.P. & Ors.
675
illegality or irregularity on ground of
denial thereof to them. Similarly wrong
judgment
passed
in
favour
of
one
individual does not entitle others to claim
similar benefits."

12. In this regard the Hon'ble Supreme
Court in the case of Gursharan Singh & Ors.
v. NDMC & Ors. 1996 (2) SCC page 459
held that citizens have assumed wrong notions
regarding the scope of Article 14 of the
Constitution which guarantees equality before
law to all citizens. Benefits extended to some
persons in an irregular or illegal manner cannot
be claimed by a citizen on the plea of equality
as enshrined in Article 14 of the Constitution by
way of writ petition filed in the High Court. The
Court observed:

"Neither
Article
14
of
the
Constitution conceives within the equality
clause this concept nor Article 226
empowers the High Court to enforce such
claim of equality before law. If such claims
are enforced, it shall amount to directing to
continue
and
perpetuate
an
illegal
procedure or an illegal order for extending
similar benefits to others. Before a claim
based on equality clause is upheld, it must
be established by the petitioner that his
claim being just and legal, has been denied
to him, while it has been extended to others
and in this process there has been a
discrimination."

13. Again in the case of Secretary,
Jaipur Development Authority, Jaipur v.
Daulat Mal Jain & Ors. 1997 (1) SCC
page 35 the Hon'ble Supreme Court
considered the scope of Article 14 of the
Constitution and reiterated its earlier
position regarding the concept of equality
holding:

"Suffice it to hold that the
illegal allotment founded upon ultra vires
and illegal policy of allotment made to
some other persons wrongly, would not
form a legal premise to ensure it to the
respondent or to repeat or perpetuate such
illegal order, nor could it be legalised. In
other words, judicial process cannot be
abused to perpetuate the illegalities. Thus
considered, we hold that the High Court
was clearly in error in directing the
appellants to allot the land to the
respondents."

14. The similar view was again taken
by the Hon'ble Supreme Court in the case
of State of Haryana & Ors v. Ram
Kumar Mann 1997 (3) SCC page 321
wherein it was observed that:

"The doctrine of discrimination is
founded upon existence of an enforceable
right. He was discriminated and denied
equality as some similarly situated persons
had been given the same relief. Article 14
would
apply
only
when
invidious
discrimination is meted out to equals and
similarly
circumstanced
without
any
rational basis or relationship in that behalf.
The respondent has no right, whatsoever
and cannot be given the relief wrongly
given to them, i.e., benefit of withdrawal of
resignation. The High Court was wholly
wrong in reaching the conclusion that there
was invidious discrimination. If we cannot
allow a wrong to perpetrate, an employee,
after
committing
mis-appropriation
of
money, is dismissed from service and
subsequently that order is withdrawn and
he is reinstated into the service. Can a
similarly
circumstanced
person
claim
equality
under
Section
14
for
reinstatement? The answer is obviously
676 INDIAN LAW REPORTS ALLAHABAD SERIES
"No". In a converse case, in the first
instance, one may be wrong but the wrong
order cannot be the foundation for claiming
equality for enforcement of the same order.
As stated earlier, his right must be founded
upon enforceable right to entitle him to the
equality treatment for enforcement thereof.
A wrong decision by the Government does
not give a right to enforce the wrong order
and claim parity or equality. Two wrongs
can never make a right."

15. A procedure has been prescribed
for the withdrawal of the land from the
acquisition. It is provided under Sub
Section (1) of Section 48 of the Act of 1894
that the Government shall be at liberty to
withdraw from the acquisition of any land
of which Possession has not been taken. It
is further provided under Sub-Section (2)
of
Section
48
that
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 there under, and shall pay such
amount to the person interested, together
with all costs.

16. Under Section 48 of the 1894 Act,
withdrawal
of
the
land
acquisition
proceedings was permissible only if the
possession has not been taken under
Section 16 or 17(1). Section 48 of the Land
Acquisition
Act,
1894
is
extracted
hereunder:-

"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 there under, 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 provision of Part III of
this Act shall apply, so far as may be, to the
determination of the compensation payable
under this section.

17. It has been held by the Hon'ble
Supreme Court in large number of
decisions that that once possession has
been taken and land has not been utilised,
there cannot be withdrawal from the
acquisition of any land. Land cannot be
restituted to the owner after the stage of
possession is over.

18. In the case of Chandragauda
Ramgonda Patil v. State of Maharashtra,
(1996) 6 SCC 405 when restitution of land
was sought, on the basis of some
Government resolutions, after possession
had been taken, following observations
were made by the Hon'ble Supreme Court:

"2...
Since
he
had
sought
enforcement
of
the
said
government
resolution, the writ petition could not be
dismissed on the ground of constructive res
judicata. He also seeks to rely upon certain
orders said to have been passed by the
High Court in conformity with enforcement
of the government resolution. We do not
think that this Court would be justified in
making direction for restitution of the land
to the erstwhile owners when the land was
taken way back and vested in the
7 All. Vijaypal & Ors. Vs. State of U.P. & Ors.
677
Municipality free from all encumbrances.
We are not concerned with the validity of
the notification in either of the writ
petitions. It is axiomatic that the land
acquired for a public purpose would be
utilised for any other public purpose,
though use of it was intended for the
original public purpose. It is not intended
that any land which remained unutilised,
should be restituted to the erstwhile owner
to whom adequate compensation was paid
according to the market value as on the
date of the notification. Under these
circumstances, the High Court was well
justified in refusing to grant relief in both
the writ petitions." (emphasis supplied)

19. Again, in C. Padma v. State of
T.N. reported in (1997) 2 SCC 627, the
Hon'ble Supreme Court stated that:

"4. The admitted position is that
pursuant to the notification published
under Section 4(1) of the Land Acquisition
Act, LA (for short "the Act") in GOR No.
1392 Industries dated 17-10-1962, total
extent of 6 acres 41 cents of land in
Madhavaram
Village,
Saidapet
Taluk,
Chengalpattu District in Tamil Nadu was
acquired under Chapter VII of the Act for
the manufacture of Synthetic Rasina by Tvl.
Reichold Chemicals India Ltd., Madras.
The acquisition proceedings had become
final and possession of the land was taken
on 30-4-1964. Pursuant to the agreement
executed by the company, it was handed
over to Tvl. Simpson and General Finance
Co. which is a subsidiary of Reichold
Chemicals India Ltd. It would appear that
at a request made by the said company, 66
cents of land out of one acre 37 cents in
respect of which the appellants originally
had ownership, was transferred in GOMs
No. 816 Industries dated 24-3-1971 in
favour of another subsidiary company. Shri
Rama Vilas Service Ltd., the 5th respondent
which is also another subsidiary of the
Company had requested for two acres 75
cents of land; the same came to be assigned
on leasehold basis by the Government after
resumption in terms of the agreement in
GOMs No. 439 Industries dated 10-5-1985.
In GOMs No. 546 Industries dated 30-31986, the same came to be approved of.
Then the appellants challenged the original
GOMs No. 1392 Industries dated 17-101962 contending that since the original
purpose for which the land was acquired
had ceased to be in operation, the
appellants are entitled to restitution of the
possession taken from them. The learned
Single Judge and the Division Bench have
held that the acquired land having already
vested in the State, after receipt of the
compensation by the predecessor-in-title of
the appellants, they have no right to
challenge the notification. Thus the writ
petition and the writ appeal came to be
dismissed.

5. Shri G. Ramaswamy, learned
Senior
Counsel
appearing
for
the
appellants,
contends
that
when
by
operation of Section 44-B read with Section
40 of the Act, the public purpose ceased to
be existing, the acquisition became bad and
therefore, the GO was bad in law. We find
no force in the contention. It is seen that
after the notification in GOR 1392 dated
17-10-1962 was published, the acquisition
proceeding
had
become
final,
the
compensation was paid to the appellants'
father and thereafter the lands stood vested
in the State. In terms of the agreement as
contemplated in Chapter VII of the Act, the
Company had delivered possession subject
to the terms and conditions there under. It
is seen that one of the conditions was that
678 INDIAN LAW REPORTS ALLAHABAD SERIES
on cessation of the public purpose, the
lands acquired would be surrendered to the
Government. In furtherance thereof, the
lands came to be surrendered to the
Government for resumption. The lands then
were allotted to SRVS Ltd., 5th respondent
which is also a subsidiary amalgamated
company
of
the
original
company.
Therefore, the public purpose for which
acquisition was made was substituted for
another public purpose. Moreover, the
question stood finally settled 32 years ago
and hence the writ petition cannot be
entertained after three decades on the
ground that either original purpose was not
public purpose or the land cannot be used
for any other purpose.

6. Under these circumstances, we
think that the High Court was right in
refusing to entertain the writ petition."

20. In Sita Ram Bhandar Society v.
State (NCT of Delhi) reported in (2009) 10
SCC 501 the Hon'ble Supreme Court
observed that:

"28. A cumulative reading of the
aforesaid judgments would reveal that
while taking possession, symbolic and
notional
possession
is
perhaps
not
envisaged under the Act but the manner in
which possession is taken must of necessity
depend upon the facts of each case.
Keeping this broad principle in mind, this
Court in T.N. Housing Board v. A.
Viswam,
(1996)
8
SCC
259
after
considering the judgment in Balwant
Narayan Bhagde v. M.D. Bhagwat, (1976)
1 SCC 700, observed that while taking
possession of a large area of land (in this
case 339 acres) a pragmatic and realistic
approach had to be taken. This Court then
examined the context under which the
judgment in Narayan Bhagde case had
been rendered and held as under:

"9. It is settled law by series of
judgments of this Court that one of the
accepted modes of taking possession of the
acquired
land
is
recording
of
a
memorandum or panchnama by the LAO in
the presence of witnesses signed by
him/them and that would constitute taking
possession of the land as it would be
impossible to take physical possession of
the acquired land. It is common knowledge
that in some cases the owner/interested
person may not be cooperative in taking
possession of the land."

40. In Narayan Bhagde case one
of the arguments raised by the landowner
was that as per the communication of the
Commissioner the land was still with the
landowner and possession thereof had not
been taken. The Bench observed that the
letter was based on a misconception as the
landowner had re-entered the acquired land
immediately after its possession had been
taken by the Government ignoring the
scenario that he stood divested of the
possession, under Section 16 of the Act.
This Court observed as under:

"29.
...
This
was
plainly
erroneous view, for the legal position is
clear that even if the appellant entered
upon the land and resumed possession of it
the very next moment after the land was
actually taken possession of and became
vested in the Government, such act on the
part of the appellant did not have the effect
of obliterating the consequences of vesting.'

To our mind, therefore, even
assuming that the appellant had re-entered
the land on account of the various interim
orders granted by the courts, or even
otherwise, it would have no effect for two
reasons,

(1) that the suits/petitions were
ultimately dismissed and

(2) that the land once having
vested in the Government by virtue of
7 All. Vijaypal & Ors. Vs. State of U.P. & Ors.
679
Section 16 of the Act, re-entry by the
landowner
would
not
obliterate
the
consequences of vesting."

21. The Hon'ble Supreme Court in
Leelawanti & Ors. v. State of Haryana &
Ors reported in (2012) 1 SCC 66 held as
under:

"19. If Para 493 is read in the
manner suggested by the learned counsel
for the appellants then in all the cases the
acquired land will have to be returned to
the owners irrespective of the time gap
between the date of acquisition and the
date on which the purpose of acquisition
specified in Section 4 is achieved and the
Government will not be free to use the
acquired land for any other public purpose.
Such an interpretation would also be
contrary to the language of Section 16 of
the Act, in terms of which the acquired land
vests in the State Government free from all
encumbrances and the law laid down by
this Court that the lands acquired for a
particular public purpose can be utilised
for any other public purpose.

22. The approach adopted by the
High Court is consistent with the law laid
down by this Court in State of Kerala v. M.
Bhaskaran Pillai, (1997) 5 SCC 432 and
Govt. of A.P. v. Syed Akbar, (2005) 1 SCC
558. In the first of these cases, the Court
considered the validity of an executive
order passed by the Government for
assignment of land to the erstwhile owners
and observed:

"4. In view of the admitted
position that the land in question was
acquired under the Land Acquisition Act,
LA by operation of Section 16 of the Land
Acquisition Act, it stood vested in the State
free from all encumbrances. The question
emerges whether the Government can
assign the land to the erstwhile owners? It
is settled law that if the land is acquired for
a public purpose, after the public purpose
was achieved, the rest of the land could be
used for any other public purpose. In case
there is no other public purpose for which
the land is needed, then instead of disposal
by way of sale to the erstwhile owner, the
land should be put to public auction and
the amount fetched in the public auction
can be better utilised for the public purpose
envisaged in the Directive Principles of the
Constitution. In the present case, what we
find is that the executive order is not in
consonance with the provision of the Act
and is, therefore, invalid. Under these
circumstances, the Division Bench is well
justified in declaring the executive order as
invalid. Whatever assignment is made,
should be for a public purpose. Otherwise,
the land of the Government should be sold
only through the public auctions so that the
public also gets benefited by getting a
higher value.

24. For the reasons stated above,
we hold that the appellants have failed to
make out a case for issue of a mandamus to
the respondents to release the acquired
land in their favour. In the result, the
appeal is dismissed without any order as to
costs."

22. It appears from perusal of the
averment made in the writ petition as well
as in the representations that only prayer
made by the petitioners to release their land
from
Acquisition
proceedings,
no
averments whatsoever has been in the
entire writ petition or in the representations
made
by
the
petitioners
before
the
Authorities that the possession of the land
has not been taken.
680 INDIAN LAW REPORTS ALLAHABAD SERIES

23. In view of the aforesaid, we are of
the opinion that the possession of the land
has been taken by the Authorities. Once the
possession has been taken, the petitioners
are not entitled for any benefit as provided
under Sub-Section (2) of Section 48 of the
Act of 1894.

24. In view of the above, the
petitioners are not entitled for the relief as
claimed. Petition devoid of merits and is
accordingly dismissed.
----------
(2021)07ILR A680
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.06.2021

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Writ C No. 13336 of 2021

Jaiprakash Tiwari ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Krishna Kumar Chaurasia

Counsel for the Respondents:
C.S.C.

A. Civil Law - Social Welfare -
Maintenance And Welfare of Parents
And Senior Citizens Act, 2007
-
Section 22(1)(3) - Uttar Pradesh
Maintenance And Welfare of Parents
and Senior Citizens Rules, 2014 -
Rule 21(2)(i) Rule 21(1) Sub-Rule 2
and 3 - Code of Criminal Procedure -
Section 107/116 - The Act, 2007
does
not
confer
power
to
the
Authorities
to
decide
partition
dispute and share of parties in an
immovable property. (Para 8)
Petitioner has prayed for protection for his life
and property and has also prayed to be put in
possession of that portion of the property which
falls in his share. For the protection of life and
property an action u/s 107/116 Cr.P.C. is said to
have been taken by the State-respondents to
ensure that breach of law and order does not
take place. (Para 6, 7)

Whereas, regarding possession, the Hon'ble
Court held that the disputed property is an
ancestral property in which the parties have
undivided share. Such a dispute is pure and
simple a dispute of share and possession of the
disputed property, which can be decided in a
partition suit. (Para 5, 8, 9)

Writ petition dismissed.(E-3)

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.
&
Hon'ble Gautam Chowdhary, J.)

1. Heard Shri Krishna Kumar
Chaurasia,
learned
counsel
for
the
petitioner and Shri B.P. Singh Kachwaha,
learned Additional Chief Standing Counsel
for the respondents.

2. The petitioner claims himself to be
a senior citizen and has filed the present
writ petition praying for the following
relief :-

(i) Issue a writ, order or direction
in the nature of mandamus directing the
respondent
no.2/
District
Magistrate,
Allahabad to decide the application dated
13.3.2021 filed Under Section 22(1)(3) of
THE MAINTENANCE AND WELFARE
OF PARENTS AND SENIOR CITIZENS
ACT, 2007 read with Rule 21(2)(1) Rule
22(1) Sub-Rule 2 and 3 of UTTAR
PRADESH
MAINTENANCE
AND
WELFARE OF PARENTS AND SENIOR
CITIZENS RULES, 2014 within a specific