MAHESH CHANDRA BANERJIversusU.P. AVAS EVAM VIKAS PARISHAD AND ORS.

                    (2010] 8 S.C.R. 19


              MAHESH CHANDRA BANERJI                          A
                             V.
     U.P. AVAS EVAM VIKAS PARISHAD AND ORS.
             (Civil Appeal No. 4970 of 2010)

                      JULY 07, 2010
                                                              B
     [ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.]

      Land Acquisition- U.P. Avas Vikas Parishad Adhiniyam
(U.P. Act No.1 of 1968) - ss.28 and 32(i) - Acquisition for
purpose of Development Scheme - Respondent no. 1- C
Parishad conducted auction in respect of the lands acquired
- Respondent no. 6 became successful bidder in respect of
a portion of the acquired lands which had earlier belonged to
the appellant's family and a sale deed was a/so executed in
his favour - Inquiry conducted pursuant to representation D
made by appellants, and Additional District Magistrate
reported that the house of appellants and the land attached
to it had been exempted from the acquisition - Possession
of the lands sold in auction not handed over to Respondent
no. 6 - Dispute as regards the extent to which land belonging E
to appellant's family had been excluded from ambit of
acquisition - Writ petition filed by respondent no. 6 - Appeal
against order passed by High Court - Held: The writ court is
not to decide such disputed questions of fact - All such
questions can either be decided in a properly instituted suit F
or by the Collector on a proper inquiry being conducted - In
order to put a quietus to the dispute, District Magistrate
directed to conduct fresh inquiry upon giving the affected
parties an opportunity of placing their respective cases -
Constitution of India, 1950 - Article 226.                  ·
                                                               G
      Respondent no.1-Parishad conducted auction in
respect of lands acquired under a Development Scheme
(Yojana No.7). Respondent no.6 became successful
                             19
                                                              H
    20     SUPREME COURT REPORTS              [2010) 8 S.C.R.

A bidder in respect of a portion of the acquired lands which
  had earlier belonged to the appellant's family and a sale
  deed was also executed in his favour.

       Meanwhile, the appellants made a representation to
8 the Housing Commissioner, praying for release of their
  land, on which inquiry was conducted and the Additional
  District Magistrate reported that the house of the
  appellants and the land attached to it had been exempted
  from acquisition.
c      While on one hand, possession of the laads sold in
  auction was not handed over to respondent no.6, on the
  other hand, the report of the Additional District Magistrate
  was also not given proper consideration for release of the
  lands belonging to appellant's family which Respondent
D no.1-Parishad purportedly took possession of without
  the same having been acquired.

       Respondent no.6 filed a writ petition. The High Court
  directed grant of possession of the lands in dispute to
E Respondent No.6 in the event it deposited the entire
  outstanding dues, excluding the penal interest. The
  appellants filed application praying for recall of the said
  judgment which was dismissed.

F        Partly allowing the instant appeals, the Court

       HELD:1. 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
  appellant's family, which had been excluded from the
G 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
H
 MAHESH CHANDRA BANERJI v. U.P. AVAS EVAM                 21
        VIKAS PARISHAD AND ORS.
Development Board, only 1-1-10 bighas of land belonging         A
to the appellants 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       B
lands excluded from the ambit of the acquisition. In either
case, the appellants have to be compensated for the said
lands in respect whereof, according to the appellants, no
compensation had either been assessed or awarded. The
said conundrum still remains to be solved. No positive          c
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, therefore, some justification
in the submission that if the lands of the appellant's
family, apart from the lands which had been excluded            D
from the acquisition, had actually been acquired for the
purpose ofYojana 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
appellants in respect thereof. [Para 21] [33-F-H; 34-A-D]       E

     2. The writ court is not ideally situated to decide such
a disputed question of fact. Although, a description of
the lands of the appellants which had been acquired, has
been given in the letter written by the Executive Engineer,     F
U.P. Housing Development Board to the District
Magistrate, the same has to be considered along with the
decision which had been taken to allow the appellants to
retain the lands adjacent to their Kothi upto G.T. Road.
There appears to be a communication gap between the             G
different authorities of the State Government as also the
Parishad relating to these lands. If a resolution had been
taken to allow the appellants to retain the above-
mentioned lands contiguous to G.T. Road, then the
specifications given in the letter of the Executive             H
                        ~



   22      SUPREME COURT REPORTS             [2010] 8 S.C.R.


A 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
B appellant's family have actually been acquired and
  possession thereof been taken, the extent of the lands so
  acquired will have to be established and compensation
  in r~pect thereof has to be paid to the appellant's family.
  That does not appear to have been done in this case,
c thereby causing prejudice to the appellants. On the other
  hand, if the excess lands belonging to ttie appellant's
  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
D lands for the purposes of assessing compensation. [Para
  22] [34-F-H; 35-A-C]

       3. All the above questions can either be decided in a
  properly instituted suit or by the Collector on a proper
E inquiry being conducted. Therefore, in order to put a
  quietus to the dispute, the District Magistrate is directed
  to conduct a fresh enquiry in order to determine the
  extent of land belonging to the appellant's family which
  is said to have been acquired for the purposes of the
F 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
G acquisition proceedings, as indicated by the Additional
  District Magistrate (V.R.), Aligarh, then, the compensation
  for the same is to be assessed and Award is to be made
  in respect thereof, in accordance with law. On the other
  hand, if the said lands have been included within the 6.17
H bighas in respect of which compensation had already
  MAHESH CHANDRA BANERJI v. U.P. AVAS EVAM                  23
         VIKAS PARISHAD AND ORS.
  been awarded, the District Magistrate shall, after              A
  identification of the lands of the appellants, apportion the
  compensation payable to them and make an Award
  accordingly. In conducting such an inquiry, the
  appellants as also the authorities of the Respondent
  No.1-Parishad should be given proper opportunity of             B
  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. [Paras 23, 24 and 25) [35-D-H; 36-A-C]
                                                                  c
     CIVIL APPELLATE JURISDICTION : Civil Appeal No.
 4970 of 2010.

      From the Judgment & Order dated 12.12.2006 of the High
 Court of Judicature at Allahabad in Civil Misc. Recall
 Application No. 81128 of 2006 in Civil Misc. Writ Petition No.   D
 54160 of 2005.

                             WITH

     C.A. No. 4971 of 2010.
                                                                  E
      Rajiv Dutta, M.P. Shorawala, Jyoti Saxena, Shashi Karan,
 Vipin K. Saxena for the Appellant.

    R.K. Dash, S.K. Dwivedi, AAG, Manoj K. Dwivedi,
Vandana Mishra, Ashutosh Sharma, Gunam Venkateswara               F
Rao, Praveen Jain, Amit Khenka, Ambhoj Kr. Sinha, Sanjay
Rohtagi, Vishwajit Singh for the Respondents.

     The Judgment of the Court was delivered by

     ALTAMAS KABIR, J. 1. Leave granted.                          G

     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.     H
    24      SUPREME COURT REPORTS                 [2010] 8 S.C.R.


A 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
B 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
c of Aligarh. On 1st April, 1957, house tax was imposed for the
  first time and the name of Suresh 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
D 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
E 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
F Banerji, who died in August, 1997.

       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
G 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.1of1968, 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
H published in the Gazette on 13th February, 1971. Under the
 MAHESH CHANDRA BANERJI v. U.P. AVAS EVAM                  25
 VIKAS PARISHAD AND ORS. [ALTAMAS KABIR, J.]
said scheme, along with other lands, the property of late Dr. A
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, B
further representations were made by the appellants to allow
them full frontal access from 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 c
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, D
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 E
    injunction the defendant 1st set· be restrained from
    interfering in the peaceful possession of the plffs. And
    defendant llnd set over the land shown by wards A B C D
    and red colour shown in the map annexed with the plaint.
                                                                 F
    (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 G
    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, H
    26      SUPREME COURT REPORTS                  [201 OJ 8 S.C.R.


A   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.
B
         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
C   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
D   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
E   same had become infructuous.

          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, ori 19th August, 2002, praying
F   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
G   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
H   Acquisition Officer, Agra, had clearly mentioned that only the
 MAHESH CHANDRA BANERJI v. U.P. AVAS EVAM                   27
 VIKAS PARISHAD AND ORS. [ALTAMAS KABIR, J.]
lands owned by one Shivdan Singh had been acquired and that        A
no other land out 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        B
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        C
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          D
that they were entitled to be given the possession of the land
in respect of which they were the 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     E
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    F
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      G
accepting the original amount as determined by allotment order
dated 17th May, 2000 and also to execute the sale deed in their
favour.

    9. On the other hand, Dr. Dinesh Chandra Banerji and           H
    28      SUPREME COURT REPORTS                   [2010] 8 S.C.R.


A   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
B   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
C   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
D   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
E   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.

F        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
G   was not even impleaded as respondent in the writ petition,
    though, he was a necessary party. 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
H
 MAHESH CHANDRA BANERJI v. U.P. AVAS EVAM                    29
 VIKAS PARISHAD AND ORS. [ALTAMAS KABIR, J.]
the cour1 in order to hold on to the possession which had A
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 B
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, C
whereby his application for recall 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 D
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            E
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        F
one Shivdan Singh, in whose name compensation had been
awarded by the Collector. In fact, it was Mr. Dutta's stand that
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 G
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 H
    30      SUPREME COURT REPORTS                   (2010) 8 S.C.R.


A   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.
B   Dutta pointed out that a categorical finding had been arrived
    at by the Additional District Magistrate (VR.), Aligarh, that the
    officials of the Housing Development Board had allotted Dr.
    Banerji's land illegally without acquiring the same and without
    making payment of compensation. Mr. Dutta submitted that
c   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.
D        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
E   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 ·1ands owned by the
    appellants in the plot in question were forcibly occupied and
    sold, allegedly in pursuance of the above-mentioned Yojana
F   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
G   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
H   that the lands of the Banerji family had also been included in
MAHESH CHANDRA BANERJI v. U.P. AVAS EVAM                  31
VIKAS PARISHAD AND ORS. [ALTAMAS KABIR, J.]
the 6.17 bighas in respect of which compensation had been A
awarded, there was no evidence of such assertion since the
proceedings were confined only to the lands belonging to tlie
property of Shivdan Singh. It was also pointed out that no
compensation had either been awarded or paid to the
members of the Banerji family and hence, the case made out B
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, C
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 D
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 Dr. Mahesh Chandra Banerji and Dr. E
Devesh Chandra Banerji in Original Suit No.307of1998 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 F
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 G
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
                                                                 H
    32      SUPREME COURT REPORTS                   [2010] 8 S.C.R.


A   measuring 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
B   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
C   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 Kathi 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 Kathi was
D   situated. Mr. Dwivedi submitted that according to the
    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
E   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
F   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.

G        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 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
H
 MAHESH CHANDRA BANERJI v. U.P. AVAS EVAM                      33
 VIKAS PARISHAD AND ORS. [ALTAMAS KABIR, J.]

Development Board in his letter dated 9th February, 2004,            A
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         B
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 UttarPradesh Gazette, i.e., 5th October, 1968. Mr. Rao        C
submitted that no objection had been filed on behalf of the
Banerjis within the specified time and the representation on the
basis 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          D
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      E
made~n 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            F
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 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         G
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               H .
    34       SUPREME COURT REPORTS                    [2010) 8 S.C.R.


A 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
B 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, therefore, some justification
  in Mr. Dutta's submissions that if the lands of the Banerji family,
c 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
D 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
E 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 which had been acquired, has been given
  in the letter written by the Executive Engineer, U.P. Housing
F 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
G 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 giv 1 in the letter of the Executive
  Engineer appear to be incorrect. Whatever be the dispute, a
H citizen cannot be deprived of his property except in accordance
 MAHESH CHANDRA BANERJI v. U.P. AVAS EVAM                  35
 VIKAS PARISHAD AND ORS. [ALTAMAS KABIR, J.]
with the procedure established by law. If barring 1-1-10 bighas A
of land which had been excluded from the ambit of the
acquisition, the other lands ot the Banerji family have actually
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 B
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 C
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 D
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 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 E
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 F
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 G
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 respect thereof, in accordance with law. On the
other hand, if the said lands have been included within the 6.17
                                                                  H
    36       SUPREME COURT REPORTS                   (2010] 8 S.C.R.


A   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
B 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
C receipt of a copy of this order.

         26. The appeals are, accordingly, allowed to the aforesaid
    extent, but without any order as to costs. All connected
    applications shall also stand disposed of by this order.
D
    B.B.B.                                   Appeals partly allowed.