1. i. issue a writ, order or direction in the nature of certiorari quashing the notification dated 26.4.203 (ANNEXURE-1) under section 28 of the U.P. Awas Evam Vikas Parishad Adhiniyum 1965 read with section 4 of the Land Acquisition Act 1894 published in U.P. Gazette on 17.5.2003 and in local newspapers on 17.5.2003, 24.5.2003 & 21.5.2003, order of sanction dated 3.8.2005 (ANNEXURE-2) issued by State Government under section 31 of the U.P. Awas Evam Vikas Parishad Adhiniyum 1965, notification dated 16.9.2005 (ANNEXURE-3) issued under section 32 of the U.P. Awas Evam Vikas Parishad Adhiniyum 1965 published in U.P. Gazette dated 19.11.2005, corrigendum dated 5.10.2006 (ANNEXURE-4), order dated 7.6.2007 (ANNEXURE-5) of Government under section 7 of the Land Acquisition Act 1894, the notification dated 7.6.2007 (ANNEXURE-6) issued by State Government under section 17(1) of the Land Acquisition Act 1894 and the Adhikar Patras dated 5.4.2008 (ANNEXURE-7 & ANNEXURE-8);
ii. issue a writ, order or direction in the nature of mandamus declaring the entire land acquisition proceedings including the aforesaid impugned notification and orders have lapsed on 18.11.2007 under section 11-A of the Land Acquisition Act 1894 on account of not taking either possession or making award within two years from 16.9.2005 when the notification under section 32 of the Adhiniyum 1965 read with section 6 of the Act 1984 was published in U.P. Gazette on 19.11.2005;
iii. issue a writ, order or direction in the nature of mandamus commanding the respondents not to interfere in possession of the petitioners over the disputed land.
2. Brief facts of the case are that the petitioners are tenure holders and Bhumidhar of the disputed plots situated at Village Kapsethi & Chakmali, Tehsil Karvi, District-Chitrakoot. Awas Aayukt, U.P. Awas & Vikas Parishad, Lucknow issued notification under section 28 of the U.P. Awas Vikas Parishad Adhiniyum 1965 (hereinafter referred to as ''Adhiniyum') dated 26.4.2003, which was published in U.P. Gazette dated 17th May, 2003 notifying that it has framed a scheme called ''Karvi Bhumi Vikas and Grih Sthan Yojana, Chitrakoot Dham" declaring that land comprised in the boundary given therein was proposed to be acquired for the said scheme and invited objections. Thereafter notices under section 29 of the Adhiniyum were issued to the petitioners on 19.6.2003 and 20.6.2003 inviting objections. The petitioners filed objections individually as well as collectively objecting to the acquisition of their land on various grounds including that the petitioners were small tenure holders and the land sought to be acquired was fertile agricultural land. The petitioners also stated in their objection that there is vast unfertile land lying at Allahabad Banda Road near Bedi Puliya & Tulsi Degree College, which is most suitable for the scheme but without giving any opportunity of being heard to them and without considering their objections, the State Government sanctioned the scheme by order dated 3.8.2005 and issued notification under section 32 of the Adhiniyum, read with section 6 of the Land Acquisition Act 1894 (hereinafter referred to as ''Act') by notification dated 16.9.2005, which was published in U.P. Gazette on 19.11.2005.
3. Thereafter a corrigendum was issued by notification dated 5.10.2006 published in official Gazette dated 25.11.2006 notifying that Khasra no.72/2 was wrongly published in notification dated 15.11.2005 instead of plot no.75/2 which was being corrected. The respondents did not take any action to implement the scheme after issuing notification under section 32 of the Adhiniyum for almost two years and thereafter the order dated 7.6.2007 was passed by State Government directing the Collector under section 7 of the Act and notification was issued on 7.6.2007 by State Government exercising power under section 17(1) of the Act directing the Collector to take possession over the disputed land, though no award has been made.
4. That the petitioners continued to be in actual physical possession over the disputed land through out and were never dispossessed. The respondents, however, purported to prepare two Adhikar Patras on 5.4.2008, one in respect of village Chakmali and other in respect of village Kapsethi. Through these Adhikar Patras Balbir Singh Yadav, Amin purported to give possession to Pradeep Kumar Verma, Sahayak Abhiyanta, U.P. Awas Vikas Parishad, Knapur. By these paper transactions neither possession was taken from the petitioners nor was delivered either to Balbir Singh Yadav, Amin or by Balbir Singh Yadav Amin to Pradeep Kumar Verma, Sahayak Abhiyanata.
5. The further case of the petitioner was that as the respondents neither took possession over the disputed land within two years from 16.9.2005, the date when notification under section 32 of the Adhiniyum read with section 6 of the Act was issued, nor the award has been mad regarding compensation by respondents, the entire land acquisition proceedings have lapsed under section 11-A of the Act.
6. That the main question to be decided in the writ petitions is as to whether on account of not taking possession within two years and not making award within the said period from the date of notification under section 32 of the Adhiniyum read with section 6 of the Act, the proceedings will be deemed to have been lapsed under section 11-A of the Act or not.
7. Learned counsel for the petitioners has placed reliance on the decision of Apex Court in Gauri Shankar & Others v. State of U.P. & Others, AIR 1994 SC 169, in which the two Hon'ble Judges namely K. Ramaswami J. & Hon'ble R.M. Sahai J. have deferred on the question of applicability of section 11-A of the Act to the Adhiniyum. While interpreting section 55 which gives power to the Parishad to acquire land, Hon'ble K. Ramaswami J. held that provisions of the Act were incorporated in the Adhiniyum with the result that they become part of the Adhiniyum and any subsequent amendment in the Act would not be taken into consideration. While Hon'ble R.M. Sahai J. was of the view, which can better be appreciated by quoting paragraph nos. 46 & 47 of the judgements :-
"46. Reason for adding the proviso to section itself was public interest. In the original act compensation for the land acquired was payable on the market value at the date of declaration relating thereto under section 6. It was substituted by (Amendment) Act 1923 (XXXVII of 1923) by the expression, "notification under Section 4. But the experience of working of the Act indicated that declarations under section 6 were issued long after publication of notification under section 4 even where urgency clause was invoked resulting in gave injustice to the land owners. Consequently to mitigate such injustice the proviso was added to section 6 reducing (the gap between notification under section 4 and declaration under section 6 of the L.A. Act to three years. The object and reasons for adding proviso to section 6 was, "at the same time, care has been taken to ensure that land acquisition proceedings do not linger on for unduly long time. The aforesaid ordinance, therefore, provides that no declaration under section 6 of the Act should be issued in respect of any particular land covered by a notification under section 4(1) published after the commencement of the ordinance, after the expiry of three years from the date of such publication". The Parliament in our Federal structure has the supremacy in legislative matters subject to the exclusive power of State on matter enumerated in list II of the VIIth schedule. It would be unjust to exclude operation of the beneficent provision added for general betterment in social interest, by resorting to rule of construction. The courts are obliged to adopt a constructive approach while construing such provisions. In absence of express exclusion it is more in consonance with justice to hold that the restriction of three years added by the proviso to section 6 applied to the Act. Any effort to demonstrate impossibility of completing proceedings within three years cannot be countenanced. Legislative intention cannot be frustrated by executive inaction. The acquisition proceedings thus came to end after expiry of three years from the date of issuance of notification under the act analogous to section 4 of the L.A. Act.
47. But this is not the end. Even though the law is in favour of petitioners but equity stands in their way since in pursuance of these proceedings the Avas Vikas Parishad entered into possession and constructed housing colonies as there was no interim order in favour of land owners during pendency of the writ petitions in the High Court. Therefore the individual interest of the land owners is faced with public interest of those large number of middle class persons who must have invested their life's savings in purchasing these houses and the demolition of houses which are standing over the land and rendering its occupants homeless shall result in incredible loss and injury. Larger social interest therefore requires this Court to mould the relief in such manner that justice may not suffer. No flaw has been found in the notifications issued for acquisition of land under section 4 or publication of declaration under section 6 of the Act. The infirmity has arisen due to procedural delay. It is well established that delay destroy the remedy but not the right. The Avas Vikas Parishad could have acquired the land by issuing fresh notification. Therefore the equities can be adjusted by directing that the compensation to the land owners shall be paid by assuming that fresh proceedings for acquisition were taken in the year in which the declaration was published."
8. That ultimately Supreme Court by a Three Judges Bench by order dated 27th August, 2007 in Girnar Traders v. State of Maharastra & Others 2007(7) SCC 555 has referred the question to a Constitutional Bench. The preponderance of the opinion in the Apex Court today is that section 11-A applied to the land sought to be acquired under the Adhiniyum.
9. That the Hon'ble Apex Court has already held that beneficial provisions subsequently brought by amendment in section 23(1-A) of the Act regarding enhanced compensation shall apply to the acquisition under the Adhiniyum. It is now being said that right given by section 11-A of the Act is a superior right than the right to get compensation and if section 23(1-A) is applicable why not section 11-A be applied.
10. That this court also by judgement and order dated 10.12.2009 passed in Civil Misc. Writ Petition No.2157/1999 (U.P. Awas Evam Vikas Parishad Vs ADM (Land Acquisition) & Others connected with other writ petitions has held that provisions of section 28-A will similarly apply to the Adhiniyum. For better appreciation of law laid down in this case following paragraph from the judgement is quoted below :-
"The clause "as amended in its application to Uttar Pradesh" used in Section 55 of U.P. Avas Evam Vikas Parishad Adhiniyam cannot be taken as synonym to the words "as amended by State of Uttar Pradesh". Use of the words "as amended in its application to Uttar Pradesh" suggest that whenever an amendment is made in the Land Acquisition Act either by the Central Legislature or the State Legislature, in its application to Uttar Pradesh, the amendment shall automatically apply to the acquisitions made under the Avas Evam Vikas Parishad Adhiniyam. It aims at avoidance of discrimination so that the land owners whose land has been acquired by the State Government under the Land Acquisition Act and those whose land has been acquired under the Adhiniyam get equal treatment. That is to say, they may get compensation equally. Thus, this clause seeks to achieve equality enshrined under Article 14 of the Constitution of India. It is settled principle of interpretation that the construction should be adapted which lean in favour of constitutionality of statute and not vice-versa. In absence of this clause, the adoption of Land Acquisition Act, 1894 by Section 55 after its amendment by Land Acquisition Amendment Act, 1984 will be violative of Article 14 of the Constitution of India."
11. That apart from the above, there is one important aspect to be considered, which has an important impact on the interpretation of section 55 of the Adhiniyum. It is well settled that there is no prohibition against a legislature enacting a single statute in exercise of powers conferred by several entries in the list, which is within its competence. Reference here may be had to paragraph no. 5 of AIR 1966 SC 619 (622) Hari Krishan Bhargav Vs Union of India, wherein it has been held that "there is no prohibition against a parliament enacting in a single statute matters, which fell for the exercise of powers under two or more entries in the list-1 of the 7th Schedule. The illustrations of such legislation are not wanting in our statute book, and the fact that one of such entries is the residuary entry which does not also attract any disability. The question is one of the convenience and not of power". To the same effect is the decision of the Apex Court in Union of India Vs Harbhajan Singh Dhillon AIR 1972 SC 1061. In paragraph 78 of the said judgement, it has been held that "there is nothing in the Constitution to prevent parliament from combining its powers under entry 86 list-1 with its powers under entry 97 list-1. There is no principle which debars parliament from replying on the powers under specified entries 1 to 96. List-1 and supplement them with the powers under entry 97 list-1 and Article 248 of the Constitution, and for that matter powers under entries in the concurrent list."
12. Section 55 of the Adhiniyum which confers power to acquired land for the purposes of the Act is quoted below :-
"55. Power to acquire land. - (1) Any land or any interest therein required by the Board for any of the purposes of this Act, may be acquired under the provisions of the Land Acquisition Act, 1894 (Act No.I of 1894), as amended in its application to Uttar Pradesh, which for this purpose shall be subject to the modifications specified in the Schedule to this Act.
(2) If any land in respect of which betterment fee has been levied under this Act is subsequently required for any of the purposes of this Act, such levy shall not be deemed to prevent the acquisition of the land under the Land Acquisition Act, 1894 (Act No.I of 1894)"
13. The Adhiniyum purports to have been made under entry-6, entry-5, entry-66 of the State list and entry-42 of the concurrent list. Section 55 confers power to acquire land for public purpose directly related and referable to entry-42 of the concurrent list. The parliament amended the Act by means of Act no.68 of 1984 by inserting section 11-A, which provides that Collector shall make an award under section 11-A of the Act within a period of two years from the date of declaration and if no award is made within that period, the entire proceedings for the acquisition of land shall lapse. Certainly this amendment Act no.68/1984 has been enacted under entry-42 of the concurrent list. Thus, section 55 of the Adhiniyum and Amendment Act 68/1984 both have been enacted one by State Legislature and another by Central Legislature under entry-42 of the concurrent list.
14. Learned counsel for the petitioners has placed reliance on Zaveribhai Amiadas Vs State of Bombey AIR 1954 SC 752 (757) in which the Supreme Court laid down, which reads as follows :-
"The principle embodied in section 107(2) and article 254(2) is that when there is legislation covering the same ground both by Centre and by the province, both of them being competent to enact the same, the law of the Centre should prevail over that of the State.
15. In Tika Ramji Vs State of U.P. & Others AIR 1956 SC 676, the Supreme Court held that "the pith and substance argument also cannot be imported here for the simple reason that, when both the centre as well as the State legislatures were operating in the concurrent field there was no question of any trespass upon the exclusive jurisdiction vested in the centre under entry - 52 of list-1, the only question which survived being whether, putting both the pieces of legislation enacted by the center and the State Legislature together, there was any such repugnancy."
16. Hon'ble the Apex Court has considered the question of repugnancy in several cases. In Deep Chandra Vs State of U.P. AIR 1959 SC 648, the result of the authorities was thus stated "Article 254 of the Constitution of India makes provision first, as to what would happen in the case of conflict between the Centre and State law with regard to subjects enumerated in concurrent list and secondly for resolving such conflict."
17. Hon'ble the Apex Court in Vijay Kumar Sharma Vs State of Karnataka AIR 1990 SC 2072, has laid down the following 11 ways in which repugnancy or inconsistencies may arise :-
(i)There may be direct repugnance between the two provisions.
(ii)Parliament may evince its intention to cover the whole field by laying down any exhaustive Code in respect thereof displacing the State Act, provision or provisions is that Act. The Act of the Parliament may be either earlier or subsequent to the State law.
(iii)Inconsistency may be demonstrated, not necessarily by a detailed comparison of the provisions of the two pieces of law, but by their very existence in the statutes.
(iv)Occupying the same field; operational incompatibility; irreconcilability or actual collision in their operation in the same territory by the Act/provision or provisions of the act made by the Parliament and their counter parts in a State law, are some of the true tests.
(v)Intention of Parliament to occupy the same field held by the State Legislature may not be expressly stated but may be implicated, which may be gathered by examination of the relevant provisions of the two pieces of the legislation occupying the same field.
(vi)If one Act/provision is an act makes lawful that which the other declares unlawful, the two to that extent are inconsistent or repugnant. The possibility of obeying both the laws by waiving the beneficial part in either set of the provisions is not sure test.
(vii)If the Parliament makes law conferring a right/obligation/privilege on a citizen/person and enjoins the authorities to obey the law but if the State law denies the self-same rights or privileges, negates the obligation or freezes them and injuncts the authorities to invite or entertain an application and to grant the right/privilege conferred by the Union law subject to the condition imposed therein, the two provisions run on a collision course and repugnancy between the two pieces of law arises thereby.
(viii)Parliament may also repeal the State law either expressly or by necessary implication but Courts would not always favour repeal by implication. Repeal by implication may be found when the State law is repugnant or inconsistent with the Union law. In other words, the Central law declares an act or omission lawful while the State law says them unlawful or prescribes irreconcilable penalties/punishments of different kinds, degree or variation in procedure, etc. The inconsistency must appear on the face of the impugned statute/provision/provisions therein.
(ix)If both the pieces of provisions occupying the same field do not deal with the same matter but distinct matters, though cognate or of allied character, there is he repeal by implication.
(x)The Court should endeavour to give effect to both the pieces of legislation as the parliament and the Legislature of a State are empowered by the Constitution to make laws on any subject or subjects enumerated n the Concurrent List III of the Seventh Schedule to the Constitution. Only when it finds the incompatibility or irreconcilability of both Acts or provisions, or the two laws cannot stand together, the Court is entitled to declare the State law to be void or repealed by implication.
(xi) The assent of the President of India under Article 254(2) given to a State law/provision/provisions therein accord only operational validity though repugnant to the Central law, but by subsequent law made by the Parliament or amendment/modification, variation or repeal by an Act of parliament renders the State law void. The previous assent given the President does not blow life into a void law.
18. That in the present case there is a clear repugnancy in section 55 of the Adhiniyum and Central Act of 68/1984 as pointed out in the aforesaid judgement of Vijay Kumar Sharma (Supra) under heading i, ii, v, vii, ix. Both have become discriminatory also at least from the point of view of land holder. The Supreme Court has already held that beneficial provisions of enhanced compensation under section 23(1-A) of the Central Act would apply to Adhiniyum, then section 11-A confers greater right, where under the land holders get their land back shall similarly apply. For the land holders it is immaterial whether the land is acquired for public purpose mentioned in Adhiniyum or for public purpose mentioned in Central Act. The land can be acquired under both the Adhiniyum as well as under the Act for public purpose. By virtue of section 11-A of the Central Act by not making award within two years, the land reverts back to him while under section 55 he will be deprived of his land in spite of the fact that award has not been made within two years. Thus, on account of implied repeal and also on the ground of discrimination it must be held that section 11-A applies to Adhiniyum if neither award has been made, nor possession has been taken within two years. The notification under section 32 of the Adhiniyum read with section 6 of the Act was published in the official Gazette on 19.11.2005 and paper possession has been taken on 5.4.2008, i.e. beyond two years and award has not yet been made, the acquisition proceedings stood lapsed.
19. Learned counsel for the respondents has placed reliance on two cases Patharro & Others Vs U.P. Awas Vikas Parishad & Others 2002 (5) AWC 3665 & Writ Petition No.26791/2006 Globe Metal Industries & Others Vs State of U.P. & Others connected with other writ petition decided by Division Bench on 21.4.2009. These two cases are distinguishable, inasmuch as, in these cases the court found that the actual physical possession was taken within two years and, therefore, in view of Satendra Prasad Jain Vs State of U.P. & Others AIR 1993 SC 2517 the question of lapsing the proceedings did not arise. Patharro's case is of 2002 and at that time the reference to a Larger Bench on the applicability of section 11-A of the Act was not made by the Apex Court. The reference to the Constitutional Bench has been made by 3 Judges Bench in Girnar Traders Vs State of Maharahstra & Others on 27th August, 2007. In other case of Globe Metal Industries, the case of Girnar Traders has been noticed but as Constitutional Bench has not decided the reference as yet, this court found itself bound by judgement of the Apex Court in Satya Pal & Others Vs State of U.P. & Others AIR 1997 SC 2235, wherein the view was taken that Section 11-A of the Land Acquisition Act as amended by Act 68/1984 has no applicability to Adhiniyum. In this case also the actual physical possession was found to have been delivered within prescribed period and, therefore, relying upon the case of Satendra Prasad Jain, the applicability of Section 11-A was ruled out. Under both these cases the question whether on account of Act 68/1984 being a parliamentary legislation under Entry-42 of the Concurrent List would impliedly repeal section 55 of the Adhiniyum to the extent of repugnancy which too was made by the State Legislature under Entry-42 of the Concurrent List has not been considered. As for the reasons mentioned above, we have held that Act 68/1984 has impliedly repealed Section 55 of the Adhiniyum to the extent of repugnancy. The respondents can derive no benefit of the aforesaid two cases cited by them and they are distinguishable.
20. It is settled principle of interpretation rather it has been said to be golden principle of interpretation that interpretation leaning to achieve the object of the Act should be adopted. The statement of objects and reasons of Section 11-A of the Land Acquisition Act, 1984 is reproduced here to below:-
Statement of Objects and Reasons:-
With the enormous expansion of the State's role in promoting public welfare and economic development since independence, acquisition of land for public purposes, industrialisation, building of institutions, etc., has become far more numerous than ever before. While this is inevitable, promotion of public purpose has to be balanced with the rights of the individual whose land is acquired, thereby often depriving him of his means of livelihood. Again, acquisition of land for private enterprises ought not to be placed on the same footing as acquisition for the State or for an enterprise under it. The individual and institutions who are unavoidably to be deprived of their property rights in land need to be adequately compensated for the loss keeping in view the sacrifice they have to make for the larger interests of the community. The pendency of acquisition proceedings for long periods often causes hardship to the affected parties and renders unrealistic the scale of compensation offered to them.
It is necessary, therefore to restructure the legislative framework for acquisition of land so that it is more adequately informed by this objective of serving the interests of the community in harmony with the rights of the individual. Keeping the above objects in view and considering the recommendations of the Law commission, the Land Acquisition Review Committee as well as the State Governments, institutions and individuals, proposals for amendment to the Land Acquisition Act, 1894, were formulated and a bill for this purpose was introduced in the Lok Sabha on the 30th April, 1982. The same has not been passed by either House of Parliament. Since the introduction of the Bill, various other proposals for amendment of the Act have been received and they have also been considered in consultation with the State Governments and other agencies. It is now proposed to include all these proposals in a fresh Bill after withdrawing the pending Bill. The main proposals for amendment are as follows:-
i) .........................................
ii) ........................................
iii) ......................................
iv) .......................................
v) It is proposed to provide for a period of two years from the date of publication of the declaration under Section 6 of the Act within which the Collector should make his award under the Act. If no award is made within that period, the entire proceedings for the acquisition of the land would lapse. He has also been empowered to correct clerical or arithmetical mistakes in the award within a certain period from the date of the award.
vi) The circumstances under which the Collector should take possession of the land before the award is made in urgent cases are being enlarged to include a larger variety of public purposes.
Vii).................................................................
viii)..................................................................
ix)..................................................................
x).................................................................
21. Thus, it is clear that object is to ensure the payment of compensation within two years to the deprive persons of his property, which is otherwise protected by Article 300-A of the Constitution of India. This law has to be implemented throughout India being a law made by the Parliament and if the Section is not applied in Awas Vikas Parishad Adhiniyam, the property holders, whose property is acquired under the Awas Vikas Parishad Adhiniyam, shall be discriminated from other persons whose property is acquired under the Land Acquisition Act. Thus, the construction should be leaning to the constitutionality of the Act and this is the only interpretation on the basis of which Section 55 can be protected otherwise it will be hit by Article 14 of the Constitution of India.
22. In the present case the notification under section 32 of the Adhiniyum read with section 6 of the Act was published in U.P. Gazette on 19.11.2005. According to the petitioners no actual physical possession has been taken from them and they are still continued to be in possession. In the counter affidavit the respondents have taken stand by two Adhikar Patras dated 5.4.2008 that Balbir Singh Yadav, Amin gave possession to Pradeep Kumar Verma ,Assistant Engineer, Awas Vikas Parishad on 5.4.2008. There is no document to show by which the possession was taken by Parishad from the petitioners. In our opinion, the petitioners case that actual physical possession was not taken and the petitioners continued to be in possession appears to be true unless the possession is taken by Parishad from the tenure holders. Inter se taking of possession between Amin and Assistant Engineer of Awas Vikas Parishad is of no effect. Moreover, admittedly the possession has not been taken within two years i.e. by 18.11.2007 and, therefore, taking of possession after much two years on 5.4.2008 will not save the proceedings from being lapsed under section 11-A of the Act. Admittedly, no award has been made till date. The assertion of the petitioners made in paragraph nos.10, 13 & 14 of the writ petition that "no award has been made" has not been specifically denied in paragraph nos. 30, 33 & 34 of the counter affidavit. Thus, twin conditions of not taking possession within two years and not making award within two years from the date of notification dated 19.11.2005 under section 32 of the Adhiniyum read with section 6 of the Act are satisfied with the result that land acquisition in respect of the disputed land stand lapsed.
23. In the result the writ petitions deserve to be allowed and are hereby allowed. The acquisition proceedings in respect of the disputed land are declared to have been lapsed under section 11-A of the Act and the respondents are restrained from interfering in peaceful physical possession of petitioners over the disputed land. Costs made easy.