SUNIT KUMAR TYAGI Vs. STATE OF U P

JUDGEMENT

(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 per cent of the estimated amount of the compensation as provided by Section 17 (3A) of Land Acquisition Act to the petitioner in respect of plot Nos. 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 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 respondent Nos. 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 bhumidar in possession of plot No. 947 area 1 bigha 16 biswas and plot No. 1019/2 area 2 bighas 3 biswa 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 bisujas area of this plot by a power-of-attor-ney to Rameshwar Prasad. The Stale Government issued a notification under Section 4(1) read with Section 17 of the Land Acquisition Act (hereinafter referred to 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 per cent 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 229B of U. P. Z. A. and L. R. Act, in which he was declared as bhumidhar 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 NO1DA. 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, later 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 Sections 4 (1) and 6 of the Act had been published. A joint survey of plot Nos. 947 and 1019/2 was conducted by Vijay Kumar. Amin. Land Acquisition. NOIDA. Jagveer Singh, Lekhpal, NOIDA, Ram Singh. Kanoongo, 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 per cent 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 the 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 Sunil Kumar Tyagi. A copy of this application has been filed as Annexure-5 and a copy of the report of the A.D.M. dated 18.7.2000, has been filed as Annexure-CA 6 to the counter-affidavit. In his report, the A.D.M. mentioned that the entire land is now covered by the constructions raised by many people and the same cannot be of any use to NOIDA. It is averred in para 8 of the counter-affidavit that the inspection report dated 13.8.1997, which is annexed along with 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 latter 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.