LUCKNOW DEVELOPMENT AUTHORITY & ANR.GOPAL DAS (DECEASED) THROUGH LRS & ORS.versusGOPAL DAS (DECEASED) THROUGH LRS & ORS.

                       [2019] 9 S.C.R. 1133                            1133


      LUCKNOW DEVELOPMENT AUTHORITY & ANR.                             A
                                 v.
      GOPAL DAS (DECEASED) THROUGH LRS & ORS.
                  (Civil Appeal No. 5820 of 2019)
                          JULY 24, 2019                                B
    [L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
      Uttar Pradesh Urban Planning and Development Act, 1973
– s. 17 proviso – Release of land from acquisition from State
Government – Restoration order in favour of respondents as also
                                                                       C
order of payment of development fee – Set aside by the High Court
– On appeal, held: Findings of the High Court that the land in
question or the vicinity has not been developed is not the correct
reading of the order passed as it has been clearly stated that 97.1%
of the land acquired has been developed – Development has to be
considered with respect to land acquired – Appellants categorically    D
stated that they have constructed road, provided electricity, water
and laid sewer lines and, thus, the respondents cannot avoid payment
of development charges while seeking restoration of land – Judgment
passed by the High Court setting aside the claim of development
charges not sustainable and set aside – Land Acquisition Act, 1894.
                                                                       E
      Allowing the appeal, the Court
       HELD: As per the averments made in the counter affidavit
filed before the High Court and also in the impugned order, it is
stated that 97.1% of the total land acquired is planned land. Small
portion of 19 Bighas including the land of the respondents has         F
not been planned for the reason that there were buildings on
such area. Therefore, when the appellants state that the land of
the respondents has not been planned or allotted is in the context
that the area has not been plotted. It does not mean that the
appellants have not carried out any development on the land in
question. It is not some part of the land acquired is required to      G
be taken into consideration, to find out as to whether any
development has been carried out in the land acquired. The
findings of the High Court that the land in question or the vicinity
has not been developed is not the correct reading of the impugned
                                                                       H
                               1133
1134                SUPREME COURT REPORTS                      [2019] 9 S.C.R.


 A     order passed as it has been clearly stated that 97.1% of the land
       acquired has been developed. The development is to be examined
       in respect of the land acquired. It is categorical stand of the
       appellants that they have constructed road, provided electricity,
       water and laid sewer lines and, thus, the respondents cannot avoid
       payment of development charges while seeking restoration of
 B
       land in terms of s. 17 of the Act. The judgment passed by the
       High Court setting aside the claim of development charges is
       not sustainable. The said finding is set aside. The order quantifying
       the development charges of Rs.1,57,22,056/- was raised without
       giving any opportunity of hearing to the respondents.
 C     Consequently, the demand letter/order is set aside with liberty
       to the appellants to communicate the amount incurred on
       acquisition and development charges in accordance with law. It
       is open to the respondents to seek remedy, if any, under the
       Right to Fair Compensation and Transparency in Land Acquisition,
       Rehabilitation and Resettlement Act, 2013 in accordance with
 D
       law. [Para 9-11] [1138-G-H; 1139-A-F]
             CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5820
       of 2019
             From the Judgment and Order dated 15.01.2014 of the High Court
 E     of 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., Kamlendra
       Mishra, Rajiv Dubey, Ms. Mayuri Raghuvanshi, Ms. Noopur Dubey,
 F     Neeraj 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 Authority1 is aggrieved
 G     against the judgment and order passed by the Division Bench of Lucknow
       Bench of the Allahabad High Court on January 15, 2014 whereby the
       order dated July 29, 2011 passed by LDA was quashed. The appellants
       were also made liable to pay costs of Rs.1,00,000/- with the direction to
       1
           for short, ‘LDA
 H
  LUCKNOW DEVELOPMENT AUTHORITY v. GOPAL DAS                                    1135
      (DECEASED) THR. LRS. [HEMANT GUPTA, J.]

recover the costs from the authorities who have been instrumental in            A
passing the impugned order.
        3. The facts leading to the present appeal are that LDA acquired
total land measuring 168.592 hectares (666 Bigha, 7 Biswa, 8 Biswansi,
8 Kachwansi) vide notification dated November 12, 1981 under Section
4 of the Land Acquisition Act, 1894 for development of Sitapur Road             B
City Extension Scheme for residential purposes. Notification under
Section 6 read with Section 17 was issued on December 3, 1981 and the
award was published on January 15, 1986.
       4. The land of the respondents measuring 1.200 hectares forming
part of land acquired was sought to be released from acquisition from           C
the State Government under Section 17 of the Uttar Pradesh Urban
Planning and Development Act, 19732. The land was released from
acquisition on May 23, 2011 whereby an order of restoration of land in
question of Khasra Nos. 416 and 417 was passed in favour of the
respondents along with an order of payment of development fee in terms
of Section 17 of the Act. The respondents were directed to deposit an           D
amount of Rs.1,57,22,056/- within one week being Rs.1,38,780/- as the
cost of acquisition and Rs.1,55,83,276/- as the amount of development
fee vide separate letter dated July 29, 2011. It is the said order which
has been set aside by the High Court vide order impugned in the present
appeal. The High Court held as under:                                           E
        “33. In view of the aforesaid interpretation of word,
        “development”, it shall be obligatory on the part of the development
        authorities like LDA in the present case, to make some
        development in accordance to statutory mandate over the land
        and its vicinity to make it entitle to impose development charges       F
        in terms of proviso of sub-section (1) of Section 17 of the Act.
        Further, the development charges co-relate with the expenditure
        incurred with regard to development activities. The development
        activities should be in the vicinity where citizens’ plots, flats or
        houses exist. In the present case, from the lay out plan and material
        on record, it appears that no development activities have been          G
        done towards west side of the railway line. Whatever development
        has been done, it seems to have been done in the Sector-A of the
        Scheme towards eastern side of railway line. Neither any material

’2for short, ‘Act’                                                              H
1136            SUPREME COURT REPORTS                            [2019] 9 S.C.R.


 A           has been brought on record nor there is any pleading on record
             that electricity, sewer line, road constructed by the LDA is utilized
             by the petitioner. There is no material on record which may prove
             that electricity connection has also been provided to the petitioner’s
             premises from the infrastructure of the LDA. National Highway
             No.24 is the old road connecting Lucknow and Sitapur and it does
 B
             not seem to be part of the development project of the LDA.
             34. …Nothing has been brought on record to establish the
             expenditure incurred on development work done over the land in
             dispute or in its close vicinity in terms of Section 8 and 9 of the
             Act from which the petitioner may be benefited. In absence of
 C           any benefit provided to the petitioner by the development work
             done by the development authority or the Lucknow Development
             Authority as the case may be, the petitioner or a citizen may not
             be subjected to payment of development charges.”
             5. Such development charges at the time of restoration are
 D     contemplated in terms of proviso to Section 17(1) of the Act, which
       reads as under:
             “17. Compulsory acquisition of land.-(1) If in the opinion of
             the State Government, any land is required for the purpose of
             development, or for any other purpose, under this Act, the State
 E           Government may acquire such land under the Provisions of the
             Land Acquisition Act,1894:
             Provided that any person, from whom any land is so acquired,
             may after the expiration of a period of five years room the date of
             such acquisition apply to the State Government for restoration of
 F           that land to him on the ground that the land has not been utilised
             within the period for the purpose, for which it was acquired and if
             the State Government is satisfied to that effect it shall order
             restoration of the land to him on re-payment of the charges which
             were incurred in connection with the acquisition together with
 G           interest at the rate of twelve per cent per annum and such
             development charges, if any,as may have been incurred after
             acquisition.
             (2) Where any land has been acquired by the State Government,
             that Government may, after it has taken possession of the land
             transfer the land to the Authority or any local authority for the
 H
 LUCKNOW DEVELOPMENT AUTHORITY v. GOPAL DAS                                  1137
     (DECEASED) THR. LRS. [HEMANT GUPTA, J.]

      purpose for which the land has been acquired on payment by             A
      Authority or the local Authority of the compensation awarded
      under that Act and of the charges incurred by the Government in
      connection with the acquisition.”
       6. Learned counsel for the appellants submits that the land in
question is 138575.25 sq. feet i.e. 12878.741 sq. meters and is situated     B
between railway line of Aishbagh-Mailani Section and National Highway
No. 24. Since the land in question is part of a planned scheme of LDA,
all necessary external infrastructural developments like construction of
road, electricity, water and sewer lines have been made available in the
area. It is also pointed out that development under the Act means
development of the entire area as a whole and not only the land of the       C
one or two landowners. The land in question is part of Master Plan and
the development of the area cannot be seen in piecemeal. In the
impugned order before the High Court, the competent authority has
recorded the following facts:
      “11. …Under the scheme of Sitapur City Extension Scheme in             D
      question, the land admeasuring 168.529 hect. was acquired in the
      year 1981. This land is completely developed land and under this
      land approx.. 97.1% of the land is planned land. All the public
      facilities like Roads, Electricity, Water, Sewer etc. has been made
      available over this land by the authority. In between Railway          E
      Line and National Highways there is total 34-1-0-0 bigha land
      which is covered with road (National Highway), hence it comes
      within the category of developed land. Since before, the facilities
      of roads, electricity and water are available here. The total
      acquired land except 19-6-0-0 bigha has been allotted. However,
      the land in question is reserved for future development, and any       F
      decision in this regard are not available in the record. The land in
      question comes under the scheme of Sitapur City Extension
      Scheme. Any zonal Plan of land situated in between Railway
      Line and National Highway is not approved, but by clubbing this
      area, the “Road Network Plan” of complete scheme in which all          G
      the sectors have been shown is approved. The aforesaid plan
      exists at present and there are no necessity to renew the lay-out
      plan of Schemes of the Authority.
      12. …In accordance to Report of the Authority, approx. 34 Bigha
      land between National Highway Lucknow Sitapur Road and                 H
1138            SUPREME COURT REPORTS                           [2019] 9 S.C.R.


 A           Railway Line has been acquired which is an Pattinuma, and out
             of which 15 Bigha land has been allotted and approx. 19 Bigha
             land is remain as it is. The land of the petitioner Shri Gopal Das is
             included in this 19 Bigha land and out of this aforesaid 19 Bigha
             land, over the land of 12 Bigha there are personal buildings etc.
             are existed being the encroachment. In this way when the land
 B
             of the petitioner has not been planned and has not been allotted
             and in part of the land his paint business is running, then it does
             not reveal justified in any manner that the land has been used by
             the Lucknow Development Authority. Because the land in question
             of petitioner has been acquired by the Lucknow Development
 C           Authority for the use of residential provisions, but the same has
             not been used for the said provisions. Therefore on the basis of
             all the aforesaid facts and circumstances, the balance of
             convenience is revealed in favour of the petitioner. Therefore, in
             such circumstances, the transfer of land in question is to be
             considered in favour of petitioner under Section 17 of the Uttar
 D
             Pradesh Urban Planning and Development Act, 1973.”
              7. The learned counsel for the appellants submits that the land in
       question is situated between railway line and National Highway, which
       is measuring 34 Bighas, out of which 15 Bighas has been allotted and
       remaining 19 Bighas of land including 12 Bighas of the respondents has
 E     not been allotted. It is the said averment made in Para 15 which was
       taken into consideration by the High Court and returned a finding that
       the development charges could not be claimed as there is no development
       work on the land of the respondents. It is the said finding which is
       sought to be supported by Mr. V.K. Garg, learned senior counsel appearing
 F     for the respondents.
             8. Learned counsel for the respondents pointed out that in respect
       of some other land, part of the same acquisition has been released in
       terms of Section 24 of the Fair Compensation and Transparency in Land
       Acquisition, Rehabilitation and Resettlement Act, 2013. Therefore, the
 G     respondents cannot be treated in a discriminatory manner.
              9. We do not find that the findings recorded by the High Court are
       sustainable in law. As per the averments made in the counter affidavit
       filed before the High Court and also in the impugned order, it is stated
       that 97.1% of the total land acquired is planned land. Small portion of 19
 H
  LUCKNOW DEVELOPMENT AUTHORITY v. GOPAL DAS                                    1139
      (DECEASED) THR. LRS. [HEMANT GUPTA, J.]

Bighas including the land of the respondents has not been planned for           A
the reason that there were buildings on such area. Therefore, when the
appellants state that the land of the respondents has not been planned or
allotted is in the context that the area has not been plotted. It does not
mean that the appellants have not carried out any development on the
land in question. It is not some part of the land acquired is required to be
                                                                                B
taken into consideration, to find out as to whether any development has
been carried out in the land acquired.The findings of the High Court that
the land in question or the vicinity has not been developed is not the
correct reading of the impugned order passed as it has been clearly
stated that 97.1% of the land acquired has been developed. The
development is to be examined in respect of the land acquired. It is            C
categorical stand of the appellants that they have constructed road,
provided electricity, water and laid sewer lines and, therefore, the
respondents cannot avoid payment of development charges while seeking
restoration of land in terms of Section 17 of the Act.
      10. In view thereof, we find that the judgment passed by the High         D
Court 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 of
Rs.1,57,22,056/- was raised without giving any opportunity of hearing to
the respondents. Consequently, the demand letter/order dated July 29,           E
2011 is set aside with liberty to the appellants to communicate the amount
incurred on acquisition and development charges in accordance with
law. It shall be open to the respondents to seek remedy, if any, under the
Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 in accordance with law.
                                                                                F

Nidhi Jain                                                    Appeal allowed.




                                                                                G




                                                                                H