Dharam Veer Sharma, J.
1.The instant writ petition has been preferred with following reliefs:
(1) To issue a writ in the nature of mandamus commanding the opposite parties to withdraw the notification dated 5.7.1985 (Annexure-2).
(2) To issue a writ in the nature of certiorari quashing the notification dated 5.7.1985 (Annexure-2), issued by the State of U.P.
2. Back ground facts are as below:
The petitioner claims to be the owner and bhoomidhar of plot Nos. 51, 143, 144, 228-Ka within the area of 5 bigha, 18 biswa and 14 biswansi situated in village Haibatmau Mawaiya, Pargana Bijnor, district Lucknow. It is alleged that the notification dated 5.7.1985 was published in official Gazette under Sections 4(1) and 17(4). On 27.6.1985, the notification was issued on 5.7.1985 under Section 6 of the Land Acquisition Act, for the acquisition of the plots mentioned in the above (Annexure-2). It is alleged that the land is acquired not for use of opposite party No. 1, but for the use of some society, company, etc. It is contended that the same is being done to sell the land in higher rate. After notification dated 5.7.1985 for acquisition of the land, no steps were taken by the authority for obtaining possession of the land. In view of Section 11A of the Land Acquisition Act, the proceedings for acquisition shall lapse if the award is not made within a period of two years, from the date of publication of declaration as notice was served on the petitioner under Section 9 of the Land Acquisition Act. Opposite party No. 2, Lucknow Development Authority has no funds to make the payment of compensation. Opposite party No. 2 issued the publication in the Pioneer daily newspaper which shows that the land shall be given on licence basis to meet out the growing demand of houses for the public, for development and construction of houses. It transpires that the Lucknow Development Authority wants to sell the land to private colonizers to earn profit. The acquisition proceedings have started without giving any notice to the petitioner. The declaration was made in the official Gazette on 5.7.1985. No award has yet been given. Consequently, the proceedings should be deemed to be invalid as no possession was taken by the petitioner and no development took place in which the land is situated. It is averred that the acquisition proceedings could not be allowed to go on infinity.
3. In the instant case, the declaration was made on 5.7.1985 (Annexure-1) and no award has been given. Consequently, in completing the acquisition proceedings more than two years have already been taken and with the lapse of time, the notification does not subsist and no compensation has been paid. Accordingly, the acquisition proceedings are void. It has been further averred that the petitioner was not given an opportunity of being heard as required by Sub-section (2) of Section 5A of Land Acquisition Act. The petitioner has never received any notice with respect to the acquisition proceedings. Opposite parties have not issued any public notice regarding the aforesaid proceedings under Section 4(1) and accordingly a notification under Section 6 read with Section 17(4) of Land Acquisition Act cannot be presumed to be issued in this case. The opposite parties have exercised the power under Section 6 by passing an order dated 5.12.1984 without publication. The acquisition proceedings have become nugatory under Section 17(4). It is further averred that one writ petition bearing No. 1650/1987 is also pending.
4. The State Government has not applied its mind to the proposal objectively or independently in favour of different bodies accordingly, the decision is not in accordance with law. As such the petitioner is compelled to challenge the notification on the ground that opposite party No. 2 Lucknow Development Authority is selling the property to the cooperative society and other society and intending to get the profit as such the action is not sustainable in the eyes of law. The required notice has not been given in accordance with law, hence the petitioner has approached this Court.
5. On behalf of opposite parties No. 2 and 3 a joint counter-affidavit was filed stating that notification for acquisition of the aforesaid land was made in accordance with the provisions of Sections 4 and 6 read with Section 17(1) of the Land Acquisition Act on 27.6.1985 and on 5.7.1985, respectively (Annexures-B1 and B2). Possession of the land in question was taken over by the Special Land Acquisition Officer and further delivered to the Lucknow Development Authority on 3.2.1987 (Annexure-B3). The award in respect of the land in question was declared by the Special Land Acquisition Officer on 8.1.1988 (Annexure-B4).
6. It is further averred that the co-ordinate Division Bench of this Hon'ble Court in Writ Petition No. 1915 (M/B)/1996, Ram Jiyawan v. Lucknow Development Authority and Ors. relying upon a judgment in Tamil Nadu Housing Board v. Viswas 1996 (2) ICC 95, held that after taking over possession of the acquired land, the said land vest in the State Government free from all encumbrances and thereafter if the erstwhile land owner or any person somehow get possession illegally or encroach on the said land then the said possession will be deemed to be unauthorized (Annexure-B5). It is further contended that once possession has been taken in pursuance of the notifications under Section 4(1) and Section 6 of the Act, then limitation of two years, for declaration of award will not apply as provided under Section 11A of the Act. If the land has been acquired under the provisions of Sections 17(1) and 17(4) of the Act vide State of U.P. v. S.P. Jain : AIR1993SC2517 ; P. Chinnanna and Ors. v. State of Andhra Pradesh and Ors. : (1994)5SCC486 and in Avadh Behari Yadav v. State of Bihar : (1995)6SCC31 .
7. On behalf of petitioner, rejoinder-affidavit was also filed in which it has been stressed that the State Government has constituted one Committee, which has to report as to how much land was acquired and how much the constructions are existing. The Committee is required to give its report by 30.4.2002. Thereafter Additional District Magistrate (Land Acquisition) submitted his report on 17.7.2003 that the society has developed the area with roads, etc. The matter is referred to the State Government to release the land in question vide (Annexure-RA 2). The petitioners made a representation to State of U.P. on 3.9.2002 (Annexure-RA 3). State Government has also issued guidelines for regularizing the unauthorized colonies (Annexure-RA 5). Despite the notification and the award, the acquisition of the land in question is not incomplete as provisions of Sections 17 and 11A of the Act have not been complied with. The petitioner has not received any amount. Board of Revenue wrote a letter to District Magistrate (Land Acquisition) to adhere the provisions of Section 11A of the Land Acquisition Act, which has not been made, therefore, the land cannot be acquired.
8. We have heard the learned Counsel for the parties at length and perused the record.
9. The learned Counsel for the petitioner has argued that neither any award has been made nor any compensation has been paid nor the Committee has made any recommendation in favour of the Lucknow Development Authority, accordingly, the notification of acquisition of land (Annexure-1) is liable to be quashed.
10. The sheet anchor of the petitioner's plea is that the land acquisition proceedings have lapsed in view of Section 11A of the Act. In order to understand the scope of the plea it will be useful to extract the relevant provisions of the Act (Section 6, Section 11, Section 11A, Section 17 and Section 48(1)).
Section 6. Declaration that land is required for a public purpose.-(1) subject to the provisions of part VII of this Act, when the appropriate Government is satisfied, after considering the report, If any, made under Section 5A, Sub-section (2), that any particular land is needed for a public purpose, or for a Company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorized to certify its orders, and different declarations may be made from time to time in respect of different parcels of any land covered by the same notification under Section 4, Sub-section (1), irrespective of whether one report or different reports has or have been made (wherever required) under Section 5A, Sub-section (2):
Provided that no declaration in respect of any particular land covered by a notification under Section 4, Sub-section (1):
(iii) published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance. 1967 (1 of 1967), but before the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of three years from the date of the publication of the notification; or
(iv) published after the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of one year from the date of the publication of the notification:
Provided further that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority.
11. Enquiry and award by Collector.-(1) On the day so fixed, or on any other day to which the enquiry has been adjourned, the Collector shall proceed to enquire into the objections (if any) which any person interested has stated pursuant to a notice given under Section 9 to the measurements made under Section 8, and into the value of the land at the date of the publication of the notification under Section 4, Sub-section (1), and into the respective interests of the persons claiming the compensation and shall make an award under his hand of:
(i) the true area of the land;
(ii) the compensation which in his opinion should be allowed for the land; and
(iii) the apportionment of the said compensation among all the persons known or believed to be Interested in the land, of whom, or of whose claims, he has information, whether or not they have respectively appeared before him:
Provided that no award shall be made by the Collector under this sub-section without the previous approval of the appropriate Government or of such officer as the appropriate Government may authorise in this behalf:
Provided further that it shall be competent for the appropriate Government to direct that the Collector may make such award without such approval in such class of cases as the appropriate Government may specify in this behalf.
(2) Notwithstanding anything contained in Sub-section (1), if at any stage of the proceedings, the Collector is satisfied that all the persons interested in the land who appeared before him have agreed in writing on the matters to be included in the award of the Collector in the form prescribed by rules made by the appropriate Government, he may, without making further enquiry, make an award according to the terms of such agreement.
(3) The determination of compensation for any land under sub-section shall not in any way affect the determination of compensation in respect of the other lands in the same locality or elsewhere in accordance with the other provisions of this Act.
(4) Notwithstanding anything contained in the Registration Act. 1908 (16 of 1908), no agreement made under Sub-section (2) shall be liable to registration under that Act.
11A. Period within which an award shall be made.-The Collector shall make an award under Section 11 within a period of two years, from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse:
Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984, the award shall be made within a period of two years from such commencement.Explanation.-In computing the period of two years referred to in this section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court shall be excluded.
17. Special powers in cases of urgency.-(1) In cases of urgency, whenever the appropriate Government so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in Section 9, Sub-section (1), take possession of any land needed for public purpose. Such land shall thereupon vest absolutely in the Government, free from all encumbrances.
(4) In the case of any land to which, in the opinion of the appropriate Government, the provisions of Sub-section (1) or Sub-section (2) are applicable, the appropriate Government may direct that the provisions of Section 5A shall not apply, and, if it does so direct, a declaration may be made under Section 6 in respect of the land at any time after the date of the publication of the notification under Section 4, Sub-section (1).
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.
11. It was contended that in view of Section 11A of the Act the entire land acquisition proceedings lapsed as no award under Section 11 had been made within 2 years from the date of commencement of the Land Acquisition Amendment Act, 1984. We are of the view that the above plea has no force. In this case, the Government had taken possession of the land in question under Section 17(1) of the Act. It is not open to the Government to withdraw from the acquisition (Section 48 of the Act). In such a case Section 11A of the Act is not attracted and the acquisition proceedings would not lapse, even if it is assumed that no award was made within the period prescribed by Section 11A of the Act. Delivering the judgment of a three-member Bench of this Court, in Satendra Prasad Jain v. State of U.P. at SCC p. 374, para-15 stated the law thus:
Ordinarily, the Government can take possession of the land proposed to be acquired only after an award of compensation in respect thereof has been made under Section 11. Upon the taking of possession the land vests in the Government, that is to say, the owner of the land loses to the Government the title to it. This is what Section 16 states. The provisions of Section 11A are intended to benefit the landowner and ensure that the award is made within a period of two years from the date of the Section 6 declaration. In the ordinary case, therefore, when Government fails to make an award within two years of the declaration under Section 6, the land has still not-vested in the Government and its title remains with the owner, the acquisition proceedings are still pending and, by virtue of the provisions of Section 11A, lapse. When Section 17(1) is applied by reason of urgency, Government takes possession of the land prior to the making of the award under Section 11 and thereupon the owner is divested of the title to the land, which is vested in the Government. Section 17(1) states so in unmistakable terms. Clearly, Section 11A can have no application to cases of acquisitions under Section 17 because the lands have already vested in the Government and there is no provision in the said Act by which land statutorily vested in the Government can revert to the owner.
12. Section 17(1) of the L.A. Act contains a provision which confers on the appropriate Government, special powers in relation to the acquisition of land in case of urgency. Further, Sub-section (4) of Section 17 empowers the appropriate Government to direct that the provisions of Section 5A shall not apply. This sub-section says when such direction is given, a declaration may be made under Section 6 in respect of the land concerned at any time after the date of publication of the notification under Section 4, Sub-section (1). However, when Section 5A is made not to apply to acquisition of a land, the appropriate Government can publish a notification under Section 4, Sub-section (1) if not already published and then make a declaration under Section 6(1). When once Section 6(1) declaration is made, by operation of Sub-section (3) of Section 6, such declaration becomes conclusive evidence that the land is needed for a public purpose or of a company, as the case may be, and after making such declaration appropriate Government may acquire the land in the manner appearing in the subsequent provisions of the L.A. Act. In so far as the land to be acquired pursuant to the direction of the appropriate Government under Sub-section (4) of Section 17 which makes Section 5A inapplicable, Sub-section (1) of Section 17 is required to be followed for the purpose of acquisition of the land concerned. That provision reads thus:
17.(1) In cases of urgency, whenever the appropriate Government so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days, from the publication of the notice mentioned in Section 9, Sub-section (1), take possession of any land needed for public purpose. Such land shall thereupon vest absolutely in the Government, free from all encumbrances.
13. The said provision enables the appropriate Government to take possession of the land concerned on the expiration of 15 days, from the publication of the notice mentioned in Section 9, Sub-section (1) notwithstanding the fact that no award has been made in respect of it. When the possession of the land concerned is once taken as provided for thereunder such land is made to vest absolutely in the Government free from all encumbrances. It must be noted here that taking possession of the land concerned and its vesting absolutely in the Government free from all encumbrances does not depend upon an award to be made under Section 11, making of which award alone in the case of ordinary acquisition of land could have empowered the Collector to take possession of the land under Section 16 and the taking of which possession would have made the land vest absolutely in the Government free from all encumbrances.
14. The Hon'ble Apex Court in State of U.P. v. Pista Devi : [1986]3SCR743 , considered the scope of Section 17 and provided certain acid tests through which, in acquisition proceedings the State action can be screened. The relevant extract of the judgment at page 257 reads thus:
In the circumstances of the case it cannot be said that the decision of the State Government in resorting to Section 17(1) of the Act was unwarranted. The provision of housing accommodation in these days, has become a matter of national urgency. We may take judicial notice of this fact. Now it is difficult to hold that in the case of proceedings relating to acquisition of land for providing house sites it is unnecessary to invoke Section 17(1) of the Act and to dispense with the compliance with Section 5A of the Act. Perhaps, at the time to which the decision in Narayan Govind Gavate v. State of Maharashtra related the situation might have been that the schemes relating to development of residential areas in the urban centres were not so urgent and it was not necessary to eliminate the inquiry under Section 5A of the Act. The acquisition proceedings which had been challenged in that case related to the year 1963. During this period of nearly 23 years, since then the population of India has gone up by hundreds of millions and it is no longer possible for the Court to take the view that the schemes of development of residential areas do not 'appear to demand such emergent action as to eliminate summary inquiries under Section 5A of the Act'.
15. The Hon'ble Apex Court from time to time considered the aforesaid view. Thus, on this count we find that the petitioner has failed to convince us that the acquisition proceedings have become nugatory. Petitioner has stressed that there was no public purpose in acquiring the land in question. We are inclined to examine the issue in the light of Section 3(f) of the Land Acquisition Act, which reads as below:
(f) the expression 'public purpose' includes-
(i) the provision of village sites, or the extension, planned development or improvement of existing village-sites;
(ii) the provision of land for town or rural planning;
(iii) the provision of land for planned development of land from public funds in pursuance of any scheme of policy of Government and subsequent disposal thereof in whole or in part by lease, assignment or outright sale with the object of securing further development as planned;
(iv) the provision of land for a corporation owned or controlled by the State;
(v) the provision of land for residential purposes to the poor or landless or to persons residing in areas affected by natural calamities, or to persons displaced or affected by reason of the implementation of any scheme undertaken by Government, any local authority or a corporation owned or controlled by the State;
(vi) the provision of land for carrying out any educational, housing, health or slum-clearance scheme sponsored by Government or by any authority established by Government for carrying out any such scheme, or with the prior approval of the appropriate Government, by a local authority, or a society registered under the Societies Registration Act, 1860 (12 of 1860) or under any corresponding law for the time being in force in a State, of a co-operative society within the meaning of any law relating to co-operative societies for the time being in force in any State;
(vii) the provision of land for any other scheme of development sponsored by Government, or with the prior approval of the appropriate Government, by a local authority;
(viii) the provision of any premises or building for locating a public office;
but does not include acquisition of land for companies.
Uttar Pradesh.-In its application to the State of the Uttar Pradesh for the existing Clause (1) the following shall be substituted as under:
(f) the expression 'public purpose' includes provisions for or in connection with:
(i) sanitary improvements of any kind include reclamation;
(ii) the laying out of village sites, townships or the extension, planned development or improvement of existing village sites or townships;
(iii) the settlement of land for agriculture with the weaker section of the people.
16. The public purpose though in question is the housing development of the acquired land. The petitioner has not challenged the said public purpose. In absence of any such challenge it does not lie in the mouth of the petitioner to contend that the acquisition proceedings are contrary to public purpose.
17. The definition of the 'public purpose' which is contained in Section 3(f) of the Act is an inclusive definition but broadly speaking the expression would include a purpose in which the general interest of the community as opposed to the particular interest of individuals is directly and vitally concerned. The expression, 'public purpose' has to be given the widest amplitude and any work of which the public can, in any way, derive benefit whether by the direct use of the work or by the enjoyment of the fruits of the activities carried on there will be a public purpose. To our mind, anything which is useful to the public in the sense of conferring some public benefit or conducting to some public advantage is a public purpose and acquisition proceedings have the nexus with the public purpose.
18. Public purpose is bound to vary with the times and the prevailing conditions In a given locality and, therefore, it would not be a practical proposition even to attempt a comprehensive definition of it. It is because of this that the Legislature has left it to the Government to say what Is a public purpose and also to declare the need of a given land for a public purpose.
19. It is well established that no exhaustive definition of the expression 'public purpose' is possible. The definition of public purpose in Section 3(f) of the Land Acquisition Act is an Inclusive definition. It will, therefore, have to be decided on the facts and circumstances of each case whether the purpose for which acquisition is sought to be made is a public purpose.
20. The Government is entitled to acquire lands for public purposes and the sovereign authority has power to acquire private land for public purposes and has the power to frame-laws for the acquisition of land. When it acts within such powers, as are given to it by the Legislature, it cannot be questioned before any court of law.
21. The Court does not question the validity if the provisions are compiled with. It transpires that Government has referred public purpose and has also declared for public purpose, i.e., for planned housing scheme. Consequently, we hold that the land was acquired by the opposite parties for public purpose. Thus, on this count the petitioner has failed to convince us that impugned notification requires any intervention of this Court. The Hon'ble Apex Court considered the issue in Bharat Singh v. State of Haryana AIR 1988 SC 2181, as regards public purpose observed at para 12 which reads as under:
The 'public purpose' in question, already noticed, is development and industrialization of the acquired land. The appellants have not challenged the said 'public purpose'. In the absence of any such challenge, it does not lie in the mouth of the appellants to contend that the acquisition was merely a profiteering venture by the State Government through H.U.D.A. The appellants will be awarded the market value of the land as compensation by the Collector. If they are dissatisfied with the award they may ask for references to the District Judge under Section 18 of the Act. If they are still aggrieved, they can file appeals to the High Court and, ultimately, may also come to this Court regarding the amount of compensation. The appellants cannot claim compensation beyond the market value of the land. In such circumstances, we fail to understand how does the question of profiteering come in. Even assuming that H.U.D.A. has made some profit, that will not in any way affect the public purpose for which the land was acquired and the acquisition will not be liable for any challenge on that ground.
22. We are unable to accept the contention of the petitioner that after the acquisition of the land it would be allotted with a big premium. This aspect has already been considered by the Hon'ble Apex Court in Bharat Singh (supra) at para 13, wherein their Lordships observed thus:
As has been already noticed, although the point as to profiteering by the State was pleaded in the writ petitions before the High Court as an abstract point of law, there was no reference to any material in support thereof nor was the point argued at the hearing of the writ petitions. Before us also, no particulars and no facts have been given in the special leave petitions or in the writ petitions or in any affidavit, but the point has been sought to be substantiated at the time of hearing by referring to certain facts stated in the said application by H.S.I.D.C. In our opinion, when a point which Is ostensibly a point of law is required to be substantiated by facts, the party raising the point if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence In support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the Court will not entertain the point. In this context, it will not be out of place to point out that In this regard there is a distinction between a pleading under the Code of Civil Procedure and writ petition or a counter-affidavit. While In a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable. But in spite of that, we have entertained it to show that it is devoid of any merit.
23. From the perusal of the record, it appears that the notification and declaration were duly notified in Gazette of U.P. It has been contended by the opposite parties that proper publicity was made in the local newspapers. Consequently, we presume that sufficient time and notice was given to the petitioner to know about the acquisition of the land in question for larger public interest.
24. We further find that the contention of the learned Counsel for the petitioner has no legs to stand in view of the copy of the order dated 12.4.2002 of the report of Additional District Magistrate (Land Acquisition) 17.7.2003. The entire proceedings should be quashed. On being specifically questioned, the petitioner has failed to point out any provision of law under which a Committee can regulate or diminish the statutory functions or annul the legal proceedings which has already been concluded.
25. We have already averred Sections 4, 6, 17 and 14 of the Act. On behalf of the opposite party Nos. 2 and 3, it has been vehemently argued that acquisition proceedings are over in the matter. The possession has already been taken by Additional District Magistrate on 3.2.1987 and the same was delivered as the award has already been published and the land in question has been delivered to Lucknow Development Authority on 3.2.1987 (Annexure-B3).
26. Petitioner has failed to place any provision under Land Acquisition Act or any law through which the State Government can appoint any Committee as suggested by the petitioner for the release of vested land from the acquisition proceedings contrary to the provisions of Section 48 of the Act.
27. The petitioner could not point out any defect in the procedure adopted for the acquisition of land in question after vesting of the land in the State on 3.2.1987, free from all its encumbrances. In the result, the title of the petitioner has also ceased as a consequence, the petitioner has no legal right to maintain this petition. We are supported by the decision of the Hon'ble Apex Court in Satyendra Prasad Jain and Ors. v. State of U.P. and Ors. 1993 (4) SCC 369.
28. Thus, after taking over possession of the land nothing is possible under Section 48(1).
29. Learned Counsel for the petitioner has further urged that the acquisition proceedings have lapsed as no award has been made within a period of three years. In this regard, we have also referred relevant provisions of the law. Even if no award has been made within two years and urgency clause of Section 17(A) has been invoked the acquisition proceedings will not lapse. The Hon'ble Apex Court in P. Chinnanna and Ors. v. State of A.P. and Ors. : (1994)5SCC486 and Awadh Bihari Yadav and Ors. v. State of Bihar and Ors. : (1995)6SCC31 . has considered the scope of invoking urgency clause and found that in the given situation the State Government is empowered to invoke the urgency clause of Section 17 of the Act in acquisition proceedings for planned housing development.
30. We accept the submissions of the learned Counsel for the respondents that in view of possession certificate Annexure-B3 there was no necessity to hold enquiry under Section 5A of the Act and the same was rightly dispensed with for acquiring the land for providing house to Lucknow Development Authority. Thus, on this count the contention of the petitioner has no force that the enquiry could not be dispensed with. On the point of possession, Annexure-B3 is the valuable piece of evidence which describe the mode of possession. From the perusal of the record, it transpires that in a valid mode the possession was taken. The effect of possession certification has been considered by the Hon'ble Apex Court in Chameli Singh v. State of U.P. and Ors. : AIR1996SC1051 wherein at paras 4 and 5 it was held as under:
4. It Is settled law that the opinion of urgency formed by the appropriate Government to take immediate possession, is a subjective conclusion based on the material before it and it is entitled to great weight unless it is vitiated by mala fides o r colourable exercise of power. Article 25(1) of the Universal Declaration of Human Rights declares that 'everyone has the right to a standard of living adequate for the health and well-being of himself and his family including food, clothing, housing, medical care and necessary social services', Article 11(1) of the International Covenant on Economic, Social and Cultural Rights, 1966, Laid down that State parties to the covenant recognise 'the right to everyone to an adequate standard of living for himself and for his family including food, clothing, housing and to the continuous improvement of living conditions.' The State parties will take appropriate steps to ensure realisation of this right. In P. G. Gupta v. State of Gujarat, a Bench of three Judges of this Court considering the mandate of human right to shelter read it into Article 19(1)(e) and Article 21 of the Constitution of India to guarantee right to residence and settlement. Protection of life guaranteed by Article 21 encompasses within its ambit the right to shelter to enjoy the meaningful right to life. The Preamble of the Indian Constitution assures to every citizen social and economic justice and equity of status and of opportunity and dignity of person so as to fasten fraternity among all sections of society in un integrated Bharat. Article 39(b) enjoins the State that ownership and control of the material resources of the community are so distributed as to promote welfare of the people by securing social and economic Justice to the weaker sections of the society to minimise Inequality in income and endeavour to eliminate inequality in status. Article 46 enjoins the State to promote with special care social, economic and educational interests of the weaker sections of the society, in particular, Scheduled Castes and Scheduled Tribes. Right to social and economic Justice conjointly commingles with right to shelter as in inseparable component for meaningful right to life. It was, therefore, held that right to residence and settlement is a fundamental right under Article 19(1)(e) and it is a facet of inseparable meaningful right to life under Article 21. Food, shelter and clothing are minimal human rights. The State has undertaken as its economic policy planned development of massive housing schemes. The right to allotment of houses constructed by the Housing Board to the weaker sections, lower income group people under Lower Income Group Scheme was held to be a constitutional strategy, an economic programme undertaken by the State and that the weaker sections are entitled to allotment as per the Scheme.
5. In Shantistar Builders v. Narayan Khimalal Totame another Bench of three Judges had held that basic needs of man have traditionally been accepted to be three food, clothing and shelter. The right to life is guaranteed in any civilized society. That would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in. The difference between the need of an animal and a human being for shelter has to be kept in view. For an animal it is the bare protection of the body; for a human being it has to be a suitable accommodation which would allow him to grow in every aspect-physical, mental and intellectual. The Constitution aims at ensuring fuller development of every child. That would be possible only if the child is in a proper home. It is not necessary that every citizen must be ensured of living in a well-built comfortable house but a reasonable home, particularly for people in India can even be mud-built thatched house or a mud-built fire-proof accommodation. When the urban land under Sections 20 and 21 of the Urban Land Ceiling Act was exempted subject to the condition of constructing houses to weaker sections by the builders, this Court recognized the above right to shelter as an inbuilt right to life under Section 21 and upheld the validity of exemption and gave directions to effectively implement the scheme. In Olga Tellis v. Bombay Municipal Corporation considering the right to dwell on pavements or in slums by the indigent was accepted as a part of right to life enshrined under Article 21, their ejectment from the place nearer to their work would be deprivation of their right to livelihood. They will be deprived of their livelihood if they are evicted from their slum and pavement dwellings. Their eviction tantamount to deprivation of their life. The Constitution Bench had held that if the right to livelihood is not treated as a traditional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. The deprivation, therefore, must be consistent with the procedure established by law. It was further held that which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. In Franncis Coralie Mullin v. Administrator, Union Territory of Delhi, considering detention under Article 22 and its effect on Article 21, this Court held that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading. Writing and expressing oneself in diverse forms, free movement and commingling with fellow human beings are part of the right to live with human dignity and they are components of the right of life.
31. Thus, we are unable to agree with the contention of the learned Counsel for petitioner that since the compensation has not been paid accordingly the erstwhile owner should be presumed to be the real owner of the acquired land. We find that the possession certificate is valuable piece of evidence, which undoubtedly proved that the possession of land in question was taken on 3.7.1987. We are supported by the law as Laid down by the Hon'ble Apex Court in State of Tamil Nadu v. Mahalakshmi Ammal and Ors. 1996 (4) SCC 269. The relevant extract is reproduced as under:
It is well-settled law that publication of the declaration under Section 6 gives conclusiveness to public purpose. Award was made on 26.9.1986 and for Survey No. 2/11 award was made on 31.8.1990. Possession having already been undertaken on 24.11.1981, it stands vested in the State under Section 16 of the Act free from all encumbrances and thereby the Government acquired absolute title to the land. The initial award having been made within two years under Section 11 of the Act, the fact that subsequent award was made on 31.8.1990, does not render the Initial award invalid. It is also to be seen that there is stay of dispossession. Once there is stay of dispossession, all further proceedings necessarily could not be proceeded with as Laid down by this Court. Therefore, the limitation also does not stand as an impediment as provided in the proviso to Section 11A of the Act. Equally, even if there is an irregularity in service of notice under Sections 9 and 10, it would be a curable irregularity and on account thereof, award made under Section 11 does not become invalid. Award is only an offer on behalf of the State. If compensation was accepted without protest, it binds such party but subject to Section 28A. Possession of the acquired land would be taken only by way of a memorandum, panchnama, which is a legally accepted norm. It would not be possible to take any physical possession. Therefore, subsequent continuation, if any, had by the erstwhile owner is only illegal or unlawful possession which does not bind the Government nor vested under Section 16 divested in the Illegal occupant. Considered from this perspective we hold that the High Court was not justified in interfering with the award.
32. The Co-ordinate Division Bench of this Court held In Beltek India Ltd., New Delhi and Anr. v. State of U.P. and Ors. 2005 (1) LACC at para 4 : 2004 (4) AWC 3294, observed as under:
In Balmoikand v. State of Punjab, it was held by the Supreme Court that the normal mode of taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto the retention of possession would tantamount only to illegal or unlawful possession. Hence, merely because the appellant subsequent to 27.11.1999, retained actual possession of the acquired land the acquisition cannot be said to be bad In law.
33. Learned Counsel for the petitioner has tried to persuade us to consider the case with respect to adjustment of the land in question. In this context, we are in agreement with the views of the opposite parties that since the possession of the land in question has already been taken over and the land has already vested in the State Government, therefore, the question of adjustment does not arise and prayer is not permissible under the law. Thus, in view of the Government of A.P. and Anr. v. Syed Akbar : AIR2005SC492 , the acquired land now cannot be assigned or re-conveyed to the erstwhile owner, i.e., the petitioner.
34. The learned Counsel for the petitioner further contends that as the petitioner has not received any amount of compensation of the land in question accordingly, the proceedings have been vitiated. On behalf of the respondents, it is submitted that Special Land Acquisition Officer by means of award provided compensation and the sum would have been withdrawn by the petitioner or should have availed remedy under Section 11 of the Land Acquisition Act, but it is not open to the petitioner to challenge the proceedings. It is settled proposition of law that if the petitioner does not take compensation awarded to him even then his non-acceptance of compensation would not invalidate the acquisition proceedings. Thus, on this count the petitioner cannot successfully challenge the acquisition proceedings as the land has already been vested in the State and transferred to Lucknow Development Authority on 3.2.1987 (Annexure-B3).
35. Considering the facts in Its entirety and on a conspectus of all these decisions mentioned herein before, the irresistible conclusion follows that the petition is devoid of any merit and accordingly petition is dismissed but with no costs.