Mahesh Chandra Banerji vs U.P.Avas Evam Vikas Parishad & Ors

2

2. One, Udai Chandra Banerji had two sons, namely,

Suresh Chandra Banerji and Ramesh Chandra Banerji.

On 1st February, 1927, the two brothers jointly

purchased 8848 square yards of land in Khasra Plot

No.2305 situated in Kasba Koli. The said khasra

number was subsequently converted into Plot

No.1002. Although, the purchase was said to have

been made jointly by Suresh Chandra Banerji and

Ramesh Chandra Banerji, the Sale Deed was executed

in the name of Ramesh Chandra Banerji, who was the

elder brother. From the Sale Deed, it would be

evident that a Kothi (building) was in existence

over a part of the said land and the land adjacent

to the building was lying vacant. Certain

additional constructions were raised on the vacant

portions which were completed in the year 1930.

The said property fell within the municipal limits

of Aligarh. On 1st April, 1957, house tax was

imposed for the first time and the name of Suresh 3

Chandra Banerji was recorded in the assessment list

of the house tax payers in the records of the

Municipal Board. In 1930, Ramesh Chandra Banerji

and Dr. Suresh Chandra Banerji shifted into the

Kothi with their families and continued to reside

therein. In 1941, Ramesh Chandra Banerji expired

and after his death, a family settlement is said to

have taken place between Ramesh Chandra Banerji's

heirs and Dr. Suresh Chandra Banerji, as a result

whereof the family of Ramesh Chandra Banerji

shifted to Kanpur and Dr. Suresh Chandra Banerji

became the exclusive owner of the Kothi in question

and he resided therein along with his family

members till his death on 16th August, 1989. At the

time of his death Dr. Suresh Chandra Banerji left

behind him surviving his sons, Paresh Chandra

Banerji, Dinesh Chandra Banerji, Bhavesh Chandra

Banerji and Umesh Chandra Banerji, who died in

August, 1997.

4

3. Mahesh Chandra Banerji, one of the sons of late

Dr. Suresh Chandra Banerji, claims to have acquired

knowledge that a Development Scheme known as Yojana

No.7 had been taken up by the Avas Evam Vikas

Parishad in 1968 and that a notification under

Section 28 of the Avas Vikas Parishad Adhiniyam,

being U.P. Act No.1 of 1968, had been issued on 5th

October, 1968 and a further notification under

Section 32(i) of the Adhiniyam was issued on 25th

January, 1971, which was published in the Gazette

on 13th February, 1971. Under the said scheme,

along with other lands, the property of late Dr.

Suresh Chandra Banerji in Khasra Plot No.1002, was

also proposed to be acquired. Objections were

filed against the proposed acquisition and in

response thereto the Respondent No.1 decided to

exclude the residential house of the appellants and

the adjoining land from the acquisition. Despite

the same, further representations were made by the

appellants to allow them full frontal access from 5

G.T. Road to their residential premises, since they

wanted to establish a nursing home on the said

plot. It appears that a decision was even taken in

that regard and Resolution No. 1/130/79 dated 16th

January, 1979 was accepted by the Respondent No.1-

Parishad and the cost of the said land was fixed at

not less than R.82/- per square metre. According

to the appellants, since the said

resolution/decision was not being given effect to,

and, on the other hand, auction notice was issued

by the Parishad on 23rd August, 1993 for sale of the

acquired lands under the above-mentioned scheme,

they were compelled to file Original Suit No.307 of

1998 before the Civil Judge, Senior Division,

Aligarh, inter alia, praying for the following

reliefs :

"(a) By passing a decree for permanent prohibitory injunction the defendant 1st set be restrained from interfering in the peaceful possession of the plffs. And defendant II set over the land shown by nd 6

wards A B C D and red colour shown in the map annexed with the plaint.

(b) By passing a decree for mandatory injunction the defendant No.1 and 5 be directed to remove their encroachment from the land of the plaintiff detailed at the foot of the plaint and to restore it's position and possession as on the date of suit within the time specified by the court and in failure to do the same be done by agency of court."

4. Initially, an order of injunction was passed in

favour of the appellants, which was subsequently

vacated on 19th April, 2001. Simultaneously, with

the filing of the aforesaid suit, two of the other

sons of late Dr. Suresh Chandra Banerji, namely,

Shri Dinesh Chandra Banerji and Shri Bhavesh

Chandra Banerji, filed Civil Misc. Writ Petition

No.18132/98 questioning the acquisition

proceedings, but the same was ultimately dismissed

on 12th May, 1999, on account of the pendency of the

suit relating to the same acquisition. 7

5. In the meantime, on 5th May, 2000, the

Respondent No.6 became the successful bidder in the

auction conducted by the Respondent No.1-Parishad

in respect of a portion of the acquired lands which

had earlier belonged to the appellants and a sale

deed was also executed in his favour on 5th May,

2000.

6. After execution of the sale deed in favour of

the Respondent No.6, the appellants on 18.7.2001

filed FAFO No.694/2001 against the order by which

the interim order passed in the suit had been

vacated. The High Court of Allahabad granted stay

of the order passed in the suit, but indicated that

the right of the Respondent No.6, Shri Gyanendra

Prashad Varshney, would not be affected by the stay

order. Ultimately, Civil Suit No.307 of 1998 came

to be dismissed as withdrawn on 18th November, 2004,

on the ground that the same had become infructuous. 8

7. While the above-mentioned suit was pending, Dr.

Mahesh Chandra Banerjee made a representation to

the Housing Commissioner (C), Uttar Pradesh Housing

& Development Board, Lucknow, on 19th August, 2002,

praying for release of the land belonging to the

applicant and his family members in Plot No.1002.

In response thereto, the District Magistrate,

Aligarh, directed the Additional District

Magistrate (V.R.), Aligarh, to conduct an inquiry

and to submit a report. In his report dated 30th

June, 2004/02.07.2004, the Additional District

Magistrate observed that the house of the applicant

and the land attached to it had been exempted from

acquisition. It was also specifically indicated

that 8848 square yards of the land of the applicant

comprised in the said plot was free from

acquisition. It was further indicated that the

Special Land Acquisition Officer, Agra, had clearly

mentioned that only the lands owned by one Shivdan

Singh had been acquired and that no other land out 9

of the total area comprising Plot No.1002 had

either been acquired or had compensation been

determined or had possession been taken thereof.

It was also indicated that despite the above, the

officials of the Housing Development Board,

Aligarh, were selling Dr. Banerji's land illegally.

8. While, on the one hand, possession of the lands

sold in auction was not being handed over to the

auction purchasers, Shri Sanjai Singh and others,

on the other hand, the report of the Additional

District Magistrate was also not being given proper

consideration for release of the lands which the

Respondent No.1-Parishad had purportedly taken

possession of without the same having been

acquired. Consequently, Sanjai Singh and two

others filed Civil Misc. Writ Petition No.54160 of

2005 before the Allahabad High Court claiming that

they were entitled to be given the possession of

the land in respect of which they were the 10

successful bidders in the auction conducted by the

Parishad. They also questioned the demand made by

the Respondent No.1-Parishad by its letter dated

30th April, 2005, asking for interest along with

penalty and stamp fee before physical possession of

the said lands could be made over to them.

Aggrieved by such demand and also by the fact that

possession of the land in respect of which they

were the successful bidders was not being made over

to them, the said writ petitioners, Sanjai Singh

and others, inter alia, prayed for quashing of the

impugned demand dated 30th April, 2005, made on

behalf of the Respondent No.1-Parishad and also for

a direction upon the said respondent to immediately

deliver possession of Plot No.C-2/A, G.T. Road,

Yojana, Aligarh, within a time period to be fixed

by the court, after accepting the original amount

as determined by allotment order dated 17th May,

2000 and also to execute the sale deed in their

favour.

11

9. On the other hand, Dr. Dinesh Chandra Banerji

and Mahesh Chandra Banerjee filed a separate Writ

Petition No.43552/2004 against the Respondent-Avas

Evam Vikas Parishad and the auction purchasers for

a direction in the nature of Mandamus commanding

the Respondent-State and the Avas Evam Vikas

Parishad to give effect to the inquiry report dated

2nd July, 2004, submitted by the Additional District

Magistrate (V.R.), Aligarh.

10. The Writ Petition filed by Sanjai Singh and

others came to be disposed of by the Division Bench

of the Allahabad High Court on 6th October, 2005,

inter alia, with a direction that in the event the

writ petitioners deposited the entire outstanding

dues, excluding the penal interest, within a period

of four weeks from the date of the order, the

respondents would hand over the possession of the

property in dispute to them within a period of two

weeks thereafter. The Respondent No.1-Parishad was 12

also requested to decide the representation of the

petitioners with regard to the penal interest by a

speaking and reasoned order within six weeks from

the date of filing of a certified copy of the

order. It was also indicated that in case the

petitioners had not filed their representation

before the appropriate authority, they could do so

within a week from the date of the order before the

Housing Commissioner, U.P. Avas Evam Vikas

Parishad, Lucknow, and the same would be dealt with

in accordance with law.

11. After the said order was passed, Dr. Mahesh

Chandra Banerji filed Civil Misc. Recall

Application No.81128/2006 praying for recall of the

aforesaid judgment and order on the ground that the

same had been obtained by concealing material facts

and that the order adversely affected the applicant

who was not even impleaded as respondent in the

writ petition, though, he was a necessary party. 13

The said application was dismissed on 12th December,

2006, on the ground that the process of the court

was being misused by denying possession of the

lands which had been allotted in favour of the

auction purchasers and that attempts were being

made to misguide the court in order to hold on to

the possession which had already vested in the

State under Section 16 of the Land Acquisition Act,

1894. Consequently, by an order of 12th December,

2006, Writ Petition No.43552 of 2004, which had

been filed by the petitioners in SLP(C)No.8019 of

2007, was dismissed on the ground that the case was

clearly covered by the judgment passed in the

Recall Application filed by Mahesh Chandra Banerji

in Writ Petition No.54160 of 2005 filed by Sanjai

Singh and others.

12. SLP(C) No.2639 of 2007 has been filed by Dr.

Mahesh Chandra Banerji against the order dated 12th

December, 2006, whereby his application for recall 14

of the judgment delivered in Writ Petition No.54160

of 2005 was rejected. SLP(C) No.8019 of 2007 has

been filed by Dr. Devesh Chandra Banerji and Mahesh

Chandra Banerji against the final order dated 12th

December, 2006, whereby Writ Petition No.43552 of

2004 was rejected.

13. The main contention of Mr. Rajiv Dutta, learned

Senior Advocate, who appeared for the appellants in

both the Civil Appeals, was that only a part and

not the whole of Plot No.1002, which, according to

him, measured 15 bighas and 10 biswa had been

acquired for the scheme (Yojana No.7) undertaken by

the Respondent-Parishad. It was urged that out of

the total area comprising the aforesaid plot,

possession had been taken only of 6 bighas and 17

biswa, which belonged to one Shivdan Singh, in

whose name compensation had been awarded by the

Collector. In fact, it was Mr. Dutta's stand that 15

no part of the appellants' land in Plot No.1002 had

been acquired for the aforesaid scheme.

14. Mr. Dutta relied heavily on the report

submitted by the Additional District Magistrate

(V.R.), Aligarh, dated 30th June, 2004/02.07.2004,

in regard to the inquiry conducted by him on the

representation made on behalf of the appellants

wherein reference had been made to the report of

the Special Land Acquisition Officer, Agra,

indicating that out of Plot No.1002 only the land

owned by one Shivdan Singh had been acquired and

that any other land had neither been acquired nor

had compensation been determined nor had possession

been taken. On the other hand, the actions of the

officials of the Housing Development Board,

Aligarh, were deprecated. Mr. Dutta pointed out

that a categorical finding had been arrived at by

the Additional District Magistrate (V.R.), Aligarh,

that the officials of the Housing Development Board 16

had allotted Dr. Banerji's land illegally without

acquiring the same and without making payment of

compensation. Mr. Dutta submitted that having

taken note of the high-handed and arbitrary action

of the officials of the Housing Development Board,

the Additional District Magistrate had recommended

that the equivalent extent of land of Dr. Banerji,

which had been arbitrarily allotted to others,

should be made available to Dr. Banerji's family.

15. Mr. Dutta further submitted that although

initially there was a proposal to acquire the

entire land comprising Plot No.1002, subsequently

on representations being made, the said proposal

was dropped and, in fact, a resolution was adopted

by the Respondent-Parishad to exclude the building

and land of the Banerjis from the scope and ambit

of the acquisition proceedings. Mr. Dutta

submitted that the controversy began when some of

the lands owned by the appellants in the plot in 17

question were forcibly occupied and sold, allegedly

in pursuance of the above-mentioned Yojana No.7.

Mr. Dutta submitted that as will be evident from

the proceedings conducted by the Collector in

regard to the acquisition of Plot No.1002, there is

no mention whatsoever of the land of the Banerji

family having been acquired or compensation having

been assessed therefor. It was urged that this

would clearly establish that no part of the lands

under the occupation of the Banerji family in the

plot in question had been acquired for the above-

mentioned Scheme. Mr. Dutta submitted that although

an attempt has been made on behalf of the

Respondent-Parishad to muddy the waters by claiming

that the lands of the Banerji family had also been

included in the 6.17 bighas in respect of which

compensation had been awarded, there was no

evidence of such assertion since the proceedings

were confined only to the lands belonging to the

property of Shivdan Singh. It was also pointed out 18

that no compensation had either been awarded or

paid to the members of the Banerji family and

hence, the case made out on behalf of the Parishad

that the land belonging to the Banerji family in

Plot No.1002 had also been acquired, has no basis

whatsoever.

16. Mr. Dutta urged that in view of the detailed

inquiry conducted by the Additional District

Magistrate (V.R.), Aligarh, and the report

submitted by him on the basis thereof, the impugned

order passed by the Division Bench of the Allahabad

High Court on the Recall Application filed on

behalf of the appellants herein, was liable to be

set aside and the matter was liable to be remanded

to the Division Bench of the High Court for fresh

consideration.

17. Mr. Dinesh Dwivedi, learned senior counsel,

appearing for the Respondent-Parishad and its

Authorities, referred to the reliefs prayed for by 19

Dr. Mahesh Chandra Banerji and Dr. Devesh Chandra

Banerji in Original Suit No.307 of 1998 which was

ultimately dismissed as infructuous. Mr. Dwivedi

submitted that the suit was for injunction

simplicitor to restrain the Parishad from

interfering with the possession of the plaintiffs

in the lands forming the subject matter of the suit

and also for mandatory injunction on the Defendant

Nos.1 and 5 to remove encroachments from the said

lands and to restore its position and possession as

on the date of the suit. It was submitted that the

plaintiffs chose to abandon the suit on account of

the writ petition which had been separately filed

in respect of the same land, inter alia, for

implementation of the report of the Additional

District Magistrate (V.R.), Aligarh, dated 2nd July,

2004, submitted to the District Magistrate,

Aligarh. Mr. Dwivedi submitted that the aforesaid

report did not give an accurate picture of the

acquisition proceedings since the lands measuring 20

6.17 bighas in respect of which possession had been

taken by the Parishad, was not confined to the

lands of Shivdan Singh alone, but also included

some of the lands comprising the lands of the

Banerji family as well. Mr. Dwivedi referred to the

status of the land comprised in Plot No.1002 shown

in the letter addressed by the Executive Engineer,

U.P. Housing and Development Board on 9th February,

2004 to the District Magistrate, Aligarh.

18. From the contents of the said letter, Mr.

Dwivedi pointed out that out of the total lands

comprising Plot No.1002, the land comprising the

Pisawa House was excluded from the acquisition

along with Dr. Mahesh Banerji's Kothi and the open

land towards North-32 ft., towards South-32 ft.,

towards East-12 ft. and towards West-52 ft.

measuring 1-1-10 bighas and a further 0-14-2 bighas

on which Smt. Angoori Devi's Kothi was situated.

Mr. Dwivedi submitted that according to the 21

aforesaid facts, the stand taken on behalf of the

appellants on the basis of the report of the

Additional District Magistrate (V.R.), Aligarh,

that no portion of the lands belonging to the

Banerji family had been acquired, was wrong and not

supported by the record. In fact, Mr. Dwivedi

pointed out that while assessing compensation for

the 6.17 bighas of land in respect whereof

possession had been taken, the Collector was alive

to the fact that the entire lands did not belong to

Shivdan Singh alone, as alleged, and the same would

be evident from the Award, wherein compensation had

been assessed in favour of Shivdan Singh, etc. It

was submitted that apart from Shivdan Singh, the

lands of the Banerji family had also been included

in the acquisition.

19. The submissions made on behalf of the Parishad

were also adopted by Mr. R.K. Dash, learned Senior

Advocate for the State of Uttar Pradesh. The 22

categorical stand taken by learned counsel was that

the views expressed by the Additional District

Magistrate (V.R.), Aligarh, were contrary to the

records, as mentioned by the Executive Engineer,

U.P. Housing and Development Board in his letter

dated 9th February, 2004, addressed to the District

Magistrate, Aligarh.

20. Mr. L. Nageshwara Rao, learned Senior Advocate,

who appeared for Respondent Nos.4 to 6, firstly

referred to the notice published by the Respondent-

Parishad under Section 28 of the U.P. Avas Evam

Vikas Parishad Adhiniyam, 1965, wherein the area to

be comprised in the G.T. Road Bhoomi Vikas Yojana

was specified and objections were invited within 30

days from the date on which the notice was first

published in the Uttar Pradesh Gazette, i.e., 5th

October, 1968. Mr. Rao submitted that no objection

had been filed on behalf of the Banerjis within the

specified time and the representation on the basis 23

of which the inquiry was conducted by the

Additional District Magistrate (V.R.), Aligarh, was

made as late as on 19th August, 2002. It was

submitted that in the meantime, auction had been

conducted on 30th March, 2000 and allotment letter

had also been issued in favour of the successful

bidders by the Housing Board on 17th May, 2000 and

possession was also given to the three auction

purchasers on 5th April, 2006. Mr. Rao submitted

that the Respondent Nos.4 to 6 were, therefore,

bona fide purchasers for value without notice and

the allotment made in their favour, could not be

disturbed.

21. From the submissions made on behalf of the

respective parties and the materials on record, it

will be apparent that the dispute in this case

centers around the question as to whether barring

1-1-10 bighas of the lands comprising a part of the

property belonging to the Banerji family, which had 24

been excluded from the acquisition, the remaining

portion had also been acquired for the purpose of

Yojana No.7 undertaken by the Respondent-Parishad.

From the calculations as indicated in the report of

the Executive Engineer, U.P. Housing Development

Board, only 1-1-10 bighas of land belonging to the

Banerji family had been excluded from the scope of

the acquisition and as far as remaining lands are

concerned, the same either fall within the 6.17

bighas possession whereof had already been taken,

or the same fell outside the said area which did

not form part of the lands excluded from the ambit

of the acquisition. In either case, the Banerjis

have to be compensated for the said lands in

respect whereof, according to the Banerjis, no

compensation had either been assessed or awarded.

The said conundrum still remains to be solved. No

positive finding has at all been arrived at in this

regard by the acquiring authorities, nor even by

the Collector while making his Award. There is, 25

therefore, some justification in Mr. Dutta's

submissions that if the lands of the Banerji

family, apart from the lands which had been

excluded from the acquisition, had actually been

acquired for the purpose of Yojana No.7, the same

had to be reflected in the proceedings for

acquisition of the lands and, accordingly,

compensation was required to be paid to the Banerji

family in respect thereof. The general submission

made on behalf of the Parishad and the State that

it was for the Banerjis to prove their title to the

alleged lands comprising 6.17 bighas and to ask for

compensation therefor, does not stand scrutiny in

view of the fact that identity of the lands covered

within the said 6.17 bighas has not been properly

established.

22. The writ court is not ideally situated to

decide such a disputed question of fact. Although,

a description of the lands of the Banerji family 26

which had been acquired, has been given in the

letter written by the Executive Engineer, U.P.

Housing Development Board to the District

Magistrate on 9th February, 2004, the same has to be

considered along with the decision which had been

taken to allow the Banerji family to retain the

lands adjacent to their Kothi upto G.T. Road.

There appears to be a communication gap between the

different authorities of the State Government as

also the Parishad relating to these lands. If a

resolution had been taken to allow the Banerji

family to retain the above-mentioned lands

contiguous to G.T. Road, then the specifications

given in the letter of the Executive Engineer

appear to be incorrect. Whatever be the dispute, a

citizen cannot be deprived of his property except

in accordance with the procedure established by

law. If barring 1-1-10 bighas of land which had

been excluded from the ambit of the acquisition,

the other lands of the Banerji family have actually 27

been acquired and possession thereof been taken,

the extent of the lands so acquired will have to be

established and compensation in respect thereof has

to be paid to the Banerji family. That does not

appear to have been done in this case, thereby

causing prejudice to the appellants. On the other

hand, if the excess lands belonging to the Banerji

family had been included within the 6.17 bighas of

land in respect whereof possession had actually

been taken, the State and the acquiring body have

to identify the said lands for the purposes of

assessing compensation.

23. All the above questions can either be decided

in a properly instituted suit or by the Collector

on a proper inquiry being conducted. We are,

therefore, of the view that in order to put a

quietus to the dispute, the District Magistrate

should conduct a fresh inquiry in order to

determine the extent of the lands of the Banerji 28

family which had been included in the acquisition

proceedings for the purpose of Yojana No.7

undertaken by the Parishad upon giving the affected

parties an opportunity of placing their respective

cases.

24. The District Magistrate, Aligarh is, therefore,

directed to conduct an enquiry in order to

determine the extent of land belonging to the

Banerji family which is said to have been acquired

for the purposes of the scheme covered by Yojana

No.7 undertaken by the Respondent No.1-Parishad and

to also determine as to whether the same was

included in the 6.17 bighas of land possession

whereof had been taken earlier. In the event the

lands have not been included within the ambit of

the acquisition proceedings, as indicated by the

Additional District Magistrate (V.R.), Aligarh,

then, in such an event, the compensation for the

same is to be assessed and Award is to be made in 29

respect thereof, in accordance with law. On the

other hand, if the said lands have been included

within the 6.17 bighas in respect of which

compensation had already been awarded, the District

Magistrate shall, after identification of the lands

of the appellants, apportion the compensation

payable to them and make an Award accordingly.

25. As indicated hereinbefore, in conducting such

an inquiry, the appellants as also the authorities

of the Respondent No.1-Parishad should be given

proper opportunity of placing their respective

cases. Since the acquisition relates back to the

year 1968/1971, such investigation and enquiry

must, however, be completed within six months from

the date of receipt of a copy of this order.

26. The appeals are, accordingly, allowed to the

aforesaid extent, but without any order as to 30

costs. All connected applications shall also stand

disposed of by this order.

________________J.

(ALTAMAS KABIR)

________________J.

(CYRIAC JOSEPH) New Delhi Dated: 7th July, 2010.