LUCKNOW DEVELOPMENT AUTHORITY & ANR.GOPAL DAS (DECEASED) THROUGH LRS & ORS. versus GOPAL DAS (DECEASED) THROUGH LRS & ORS. on 24 July 2019

LUCKNOW DEVELOPMENT AUTHORITY & ANR.

v.

GOPAL DAS (DECEASED) THROUGH LRS & ORS.

(Civil Appeal No. 5820 of 2019)

JULY 24, 2019

[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]

Uttar Pradesh Urban Planning and Development Act, 1973– s. 17 proviso – Release of land from acquisition from StateGovernment – Restoration order in favour of respondents as alsoorder of payment of development fee – Set aside by the High Court– On appeal, held: Findings of the High Court that the land inquestion or the vicinity has not been developed is not the correctreading of the order passed as it has been clearly stated that 97.1%of the land acquired has been developed – Development has to beconsidered with respect to land acquired – Appellants categoricallystated that they have constructed road, provided electricity, waterand laid sewer lines and, thus, the respondents cannot avoid paymentof development charges while seeking restoration of land – Judgmentpassed by the High Court setting aside the claim of developmentcharges not sustainable and set aside – Land Acquisition Act, 1894.

Allowing the appeal, the Court

HELD: As per the averments made in the counter affidavitfiled before the High Court and also in the impugned order, it isstated that 97.1% of the total land acquired is planned land. Smallportion of 19 Bighas including the land of the respondents hasnot been planned for the reason that there were buildings onsuch area. Therefore, when the appellants state that the land ofthe respondents has not been planned or allotted is in the contextthat the area has not been plotted. It does not mean that theappellants have not carried out any development on the land inquestion. It is not some part of the land acquired is required tobe taken into consideration, to find out as to whether anydevelopment has been carried out in the land acquired. Thefindings of the High Court that the land in question or the vicinityhas not been developed is not the correct reading of the impugned

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Aorder passed as it has been clearly stated that 97.1% of the landacquired has been developed. The development is to be examinedin respect of the land acquired. It is categorical stand of theappellants that they have constructed road, provided electricity,water and laid sewer lines and, thus, the respondents cannot avoidpayment of development charges while seeking restoration ofBland in terms of s. 17 of the Act. The judgment passed by theHigh Court setting aside the claim of development charges isnot sustainable. The said finding is set aside. The order quantifyingthe development charges of Rs.1,57,22,056/- was raised withoutgiving any opportunity of hearing to the respondents.CConsequently, the demand letter/order is set aside with libertyto the appellants to communicate the amount incurred onacquisition and development charges in accordance with law. Itis open to the respondents to seek remedy, if any, under theRight to Fair Compensation and Transparency in Land Acquisition,Rehabilitation and Resettlement Act, 2013 in accordance withDlaw. [Para 9-11] [1138-G-H; 1139-A-F]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5820of 2019

From the Judgment and Order dated 15.01.2014 of the High Court Eof Judicature at Allahabad, Lucknow Bench in Writ Petition No. 7782(M/B) of 2011

Abhisth Kumar, Adv. for the Appellants.

Ms. Aishwarya Bhati, ASG, V. K. Garg, Sr. Adv., KamlendraMishra, Rajiv Dubey, Ms. Mayuri Raghuvanshi, Ms. Noopur Dubey,FNeeraj Sharma, Vyom Raghuvanshi, Advs. for the Respondents.

The Judgment of the Court was delivered by HEMANT GUPTA, J. 1. Leave granted.

2. The appellant-Lucknow Development Authority[1] is aggrievedGagainst the judgment and order passed by the Division Bench of LucknowBench of the Allahabad High Court on January 15, 2014 whereby theorder dated July 29, 2011 passed by LDA was quashed. The appellantswere also made liable to pay costs of Rs.1,00,000/- with the direction to 1for short, ‘LDAH

recover the costs from the authorities who have been instrumental inpassing the impugned order.

3. The facts leading to the present appeal are that LDA acquiredtotal land measuring 168.592 hectares (666 Bigha, 7 Biswa, 8 Biswansi,8 Kachwansi) vide notification dated November 12, 1981 under Section4 of the Land Acquisition Act, 1894 for development of Sitapur RoadCity Extension Scheme for residential purposes. Notification underSection 6 read with Section 17 was issued on December 3, 1981 and theaward was published on January 15, 1986.

4. The land of the respondents measuring 1.200 hectares formingpart of land acquired was sought to be released from acquisition fromthe State Government under Section 17 of the Uttar Pradesh UrbanPlanning and Development Act, 1973[2]. The land was released fromacquisition on May 23, 2011 whereby an order of restoration of land inquestion of Khasra Nos. 416 and 417 was passed in favour of therespondents along with an order of payment of development fee in termsof Section 17 of the Act. The respondents were directed to deposit anamount of Rs.1,57,22,056/- within one week being Rs.1,38,780/- as thecost of acquisition and Rs.1,55,83,276/- as the amount of developmentfee vide separate letter dated July 29, 2011. It is the said order whichhas been set aside by the High Court vide order impugned in the presentappeal. The High Court held as under:

“33. In view of the aforesaid interpretation of word,“development”, it shall be obligatory on the part of the developmentauthorities like LDA in the present case, to make somedevelopment in accordance to statutory mandate over the landand its vicinity to make it entitle to impose development chargesin terms of proviso of sub-section (1) of Section 17 of the Act.Further, the development charges co-relate with the expenditureincurred with regard to development activities. The developmentactivities should be in the vicinity where citizens’ plots, flats orhouses exist. In the present case, from the lay out plan and materialon record, it appears that no development activities have beendone towards west side of the railway line. Whatever developmenthas been done, it seems to have been done in the Sector-A of theScheme towards eastern side of railway line. Neither any material AB

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Ahas been brought on record nor there is any pleading on recordthat electricity, sewer line, road constructed by the LDA is utilizedby the petitioner. There is no material on record which may provethat electricity connection has also been provided to the petitioner’spremises from the infrastructure of the LDA. National HighwayNo.24 is the old road connecting Lucknow and Sitapur and it doesBnot seem to be part of the development project of the LDA.

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34. …Nothing has been brought on record to establish theexpenditure incurred on development work done over the land indispute or in its close vicinity in terms of Section 8 and 9 of theAct from which the petitioner may be benefited. In absence ofany benefit provided to the petitioner by the development workdone by the development authority or the Lucknow DevelopmentAuthority as the case may be, the petitioner or a citizen may notbe subjected to payment of development charges.”

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5. Such development charges at the time of restoration areDcontemplated in terms of proviso to Section 17(1) of the Act, whichreads as under:

“17. Compulsory acquisition of land.-(1) If in the opinion ofthe State Government, any land is required for the purpose ofdevelopment, or for any other purpose, under this Act, the StateGovernment may acquire such land under the Provisions of theLand Acquisition Act,1894:

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Provided that any person, from whom any land is so acquired,may after the expiration of a period of five years room the date ofsuch acquisition apply to the State Government for restoration ofthat land to him on the ground that the land has not been utilisedwithin the period for the purpose, for which it was acquired and ifthe State Government is satisfied to that effect it shall orderrestoration of the land to him on re-payment of the charges whichwere incurred in connection with the acquisition together withinterest at the rate of twelve per cent per annum and suchdevelopment charges, if any,as may have been incurred afteracquisition.

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(2) Where any land has been acquired by the State Government,that Government may, after it has taken possession of the landtransfer the land to the Authority or any local authority for the H

purpose for which the land has been acquired on payment byAuthority or the local Authority of the compensation awardedunder that Act and of the charges incurred by the Government inconnection with the acquisition.”

6. Learned counsel for the appellants submits that the land inquestion is 138575.25 sq. feet i.e. 12878.741 sq. meters and is situatedbetween railway line of Aishbagh-Mailani Section and National HighwayNo. 24. Since the land in question is part of a planned scheme of LDA,all necessary external infrastructural developments like construction ofroad, electricity, water and sewer lines have been made available in thearea. It is also pointed out that development under the Act meansdevelopment of the entire area as a whole and not only the land of theone or two landowners. The land in question is part of Master Plan andthe development of the area cannot be seen in piecemeal. In theimpugned order before the High Court, the competent authority hasrecorded the following facts:

“11. …Under the scheme of Sitapur City Extension Scheme inquestion, the land admeasuring 168.529 hect. was acquired in theyear 1981. This land is completely developed land and under thisland approx.. 97.1% of the land is planned land. All the publicfacilities like Roads, Electricity, Water, Sewer etc. has been madeavailable over this land by the authority. In between RailwayLine and National Highways there is total 34-1-0-0 bigha landwhich is covered with road (National Highway), hence it comeswithin the category of developed land. Since before, the facilitiesof roads, electricity and water are available here. The totalacquired land except 19-6-0-0 bigha has been allotted. However,the land in question is reserved for future development, and anydecision in this regard are not available in the record. The land inquestion comes under the scheme of Sitapur City ExtensionScheme. Any zonal Plan of land situated in between RailwayLine and National Highway is not approved, but by clubbing thisarea, the “Road Network Plan” of complete scheme in which allthe sectors have been shown is approved. The aforesaid planexists at present and there are no necessity to renew the lay-outplan of Schemes of the Authority.

12. …In accordance to Report of the Authority, approx. 34 Bighaland between National Highway Lucknow Sitapur Road and A

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ARailway Line has been acquired which is an Pattinuma, and outof which 15 Bigha land has been allotted and approx. 19 Bighaland is remain as it is. The land of the petitioner Shri Gopal Das isincluded in this 19 Bigha land and out of this aforesaid 19 Bighaland, over the land of 12 Bigha there are personal buildings etc.are existed being the encroachment. In this way when the landBof the petitioner has not been planned and has not been allottedand in part of the land his paint business is running, then it doesnot reveal justified in any manner that the land has been used bythe Lucknow Development Authority. Because the land in questionof petitioner has been acquired by the Lucknow DevelopmentCAuthority for the use of residential provisions, but the same hasnot been used for the said provisions. Therefore on the basis ofall the aforesaid facts and circumstances, the balance ofconvenience is revealed in favour of the petitioner. Therefore, insuch circumstances, the transfer of land in question is to beconsidered in favour of petitioner under Section 17 of the UttarDPradesh Urban Planning and Development Act, 1973.”

7. The learned counsel for the appellants submits that the land inquestion is situated between railway line and National Highway, whichis measuring 34 Bighas, out of which 15 Bighas has been allotted andremaining 19 Bighas of land including 12 Bighas of the respondents hasEnot been allotted. It is the said averment made in Para 15 which wastaken into consideration by the High Court and returned a finding thatthe development charges could not be claimed as there is no developmentwork on the land of the respondents. It is the said finding which issought to be supported by Mr. V.K. Garg, learned senior counsel appearingFfor the respondents.

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8. Learned counsel for the respondents pointed out that in respectof some other land, part of the same acquisition has been released interms of Section 24 of the Fair Compensation and Transparency in LandAcquisition, Rehabilitation and Resettlement Act, 2013. Therefore, theGrespondents cannot be treated in a discriminatory manner.

9. We do not find that the findings recorded by the High Court aresustainable in law. As per the averments made in the counter affidavitfiled before the High Court and also in the impugned order, it is statedthat 97.1% of the total land acquired is planned land. Small portion of 19

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Bighas including the land of the respondents has not been planned forthe reason that there were buildings on such area. Therefore, when theappellants state that the land of the respondents has not been planned orallotted is in the context that the area has not been plotted. It does notmean that the appellants have not carried out any development on theland in question. It is not some part of the land acquired is required to betaken into consideration, to find out as to whether any development hasbeen carried out in the land acquired.The findings of the High Court thatthe land in question or the vicinity has not been developed is not thecorrect reading of the impugned order passed as it has been clearlystated that 97.1% of the land acquired has been developed. Thedevelopment is to be examined in respect of the land acquired. It iscategorical stand of the appellants that they have constructed road,provided electricity, water and laid sewer lines and, therefore, therespondents cannot avoid payment of development charges while seekingrestoration of land in terms of Section 17 of the Act.

10. In view thereof, we find that the judgment passed by the HighCourt setting aside the claim of development charges is not sustainable.Consequently, the appeal is allowed and the said finding is set aside.

11. We find that the order quantifying the development charges ofRs.1,57,22,056/- was raised without giving any opportunity of hearing tothe respondents. Consequently, the demand letter/order dated July 29,2011 is set aside with liberty to the appellants to communicate the amountincurred on acquisition and development charges in accordance withlaw. It shall be open to the respondents to seek remedy, if any, under theRight to Fair Compensation and Transparency in Land Acquisition,Rehabilitation and Resettlement Act, 2013 in accordance with law.

Appeal allowed.

Nidhi Jain

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