HIGH COURT OF JUDICATURE AT ALLAHABAD WRIT - C No. - 67884 of 2015 Court No. - 29 HON'BLE MAHESH CHANDRA TRIPATHI, J. HON'BLE ANISH KUMAR GUPTA, J. 1. Heard Shri Jitendra Pal Singh, learned counsel for the petitioners and Shri Ajeet Singh, learned Standing Counsel for State respondents. 2. The instant writ petition has been preferred for following reliefs:- "(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 14.09.2015 passed by respondent no.3 (annexure no13). (ii) Issue a writ, order or direction in the nature of mandamus directing the respondents to pay the compensation for the utilized acquired land area 1 Bigha 11 Biswa in accordance with the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and returned the unutilized acquired land area 3 Bigha 11 Biswa to the petitioners which was acquired by means of de-notification under Section 48 of Land Acquisition Act in pursuance of the order dated 15.11.2011/13.12.2011 passed by respondent no.3 (annexure no.8 to this writ petition) in view of the provisions of old and new Land Acquisition Act. (iii) Issue a writ, order or direction in the nature of mandamus directing the respondents to pay the compensation to the petitioners in accordance with the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 in view of the Proviso of Section 24 (2) of the said Act." 3. Learned counsel for the petitioners submits that for construction of Lodha Minor Canal at Distt. Aligarh the acquisition proceedings were drawn way back in the year 2008. The holding of the petitioners had also been effected Versus Counsel for Petitioner(s) : Jitendra Pal Singh Counsel for Respondent(s) : C.S.C. Lokesh Kumar Dixit And 8 Others .....Petitioner(s) State Of U.P. And 3 Others .....Respondent(s) with Lodha Minor Canal. Subsequently, aforesaid Lodha Minor Canal was diverted from its original place and thus out of the total acquired land i.e. 5 bigha 2 biswa, only 1 bigha 11 biswa was utilized for the purpose of the construction of canal and remaining land measuring 3 bigha 11 biswa was left unutilized. Thereafter, the father of the petitioner nos.1 and 2 moved an application on 1.8.2008 before respondent no.2 stating therein that unutilized land may be returned back to the petitioners and he may be given compensation of the utilised land. Once no decision had been taken by the respondents, the father of petitioner nos.1 and 2 had preferred Writ-C No.19332 of 2014 (Ram Niwas Dixit v. State of U.P. & Ors.) with a prayer to direct the respondents to pay the compensation for the utilized acquired land and return the unutilizied acquired land. The said writ petition had been disposed of on 02.04.2014 with following observations:- "Heard learned counsel for the petitioner and learned Standing Counsel appearing for the State. In the facts of the present case, the petition is being finally disposed of without inviting the counter affidavit. By this writ petition, the petitioner has prayed for mandamus directing the respondents to pay the compensation for the utilized acquired land area 1 Bigha 11 Biswa and return the unutilized acquired land area 3 Bigha 11 Biswa to the petitioner. Petitioner's land was acquired under the Land Acquisition Act total area 5 Bigha 2 Biswa, out of which only 1 Bigha 11 Biswa land was utilized for Lodha Minor Canal. Executive Engineer, Madhya Nahar Khand-19 District Aligarh, respondent no. 4 submitted a report that the 3 Bigha 11 Biswa land was not useful for the department.Petitioner had earlier come to this Court and under order of this Court dated 19th July, 2011 Special Land Acquisition Officer, Aligarh, respondent no. 3 has passed an order dated 13.12.2011 directing that Executive Engineer/Acquiring Body may submit a proposal to the State Government for consideration for release of the land measuring 3 Bigha 11 Biswa, which remains unutilized. The petitioner has come up in this writ petition praying for aforesaid relief. Petitioner's grievance in the present writ petition is that he has not yet received compensation for 1 Bigha 11 Biswa land, which has been utilized and rest of the land may be released. Learned Standing Counsel submits that in view of the fact, Special Land Acquisition WRIC No. 67884 of 2015 2 Officer himself observed that Acquiring Body may send proposal for whom the land is not useful. End of justice be served in permitting the petitioner to submit a representation to the State Government for release of the aforesaid land. In the facts of the present case, end of justice would be served in disposing of the writ petition with the liberty to the petitioner to submit a detailed application before the State Government within a period of four weeks from today for release of 3 Bigha 11 Biswa of land, as per letter dated 13.12.2011 of the Special Land Acquisition Officer, Aligarh. The State Government, respondent no. 1 may consider the said application and take appropriate decision in accordance with law. It goes without saying that with regard to the land, which has already been utilized, petitioner on making a proper application be paid the due compensation in accordance with law. The compensation to the petitioner, which is said to have been deposited, may be paid to the petitioner by Special Land Acquisition Officer, Aligarh, respondent no. 3 within a period of four months from the date of filing of certified copy of this order. With the aforementioned observations, the present writ petition is disposed of." 4. Learned counsel for the petitioners, in this backdrop, states that till date the application under Section 48 (1) of the Land Acquisition Act, 1894 (in short "Act, 1894") has not been taken care of by the State respondents and the Special Land Acquisition Officer (in short "SLAO"), in most arbitrary manner, had considered and rejected the claim of the petitioners vide order impugned with observation that land in question cannot be denotified, whereas he did not inhere such power under the Act, 1894. It is also claimed that till date the actual physical possession of the land, which has not been utilised by the Authority, has not been taken over and the possession of the same is still with the petitioners. 5. On the matter being taken up on 26.10.2018, the Court had proceeded to pass the following order:- "Under order dated 02.04.2014 passed in Writ-C No.19332 of 2014, the State Government was required to take appropriate decision in accordance with law on the prayer of the petitioners for release of the unutilised portion of the land, which was acquired. It appears that pursuant to the decision of this Court dated 02.04.2014 order has been passed by the Special Land Acquisition Officer, Aligarh on 14.09.2015, which has been challenged. WRIC No. 67884 of 2015 3 Ordinarily, when a direction is issued to the State Government to take a decision, it is the Secretary of the department concerned who has to consider and decide. Whether the Special Land Acquisition Officer was authorized by the State Government to take such a decision needs to be ascertained. Learned Standing Counsel shall file supplementary counter affidavit within four weeks dealing with the aforesaid aspect. List after four weeks." 6. Considering the factual situation, we find that undisputedly the petitioners' holding had been utilized by the Authority. In previous round of litigation, he had prayed for denotification of the part of the acquired land, which was unutilised under Section 48 (1) of the Act, 1894. Nothing is brought on record to substantiate whether till date the claim of the petitioners had been redressed by the State Government under Section 48 (1) of the Act, 1894 or not. Contrarily, while passing the order impugned, the SLAO had taken a view that once the land had been acquired, possession had been taken and award had been passed, no such recommendation could be made and the land could not be released. However, certain observations had been made to the extent that the petitioners may press relief before the State Government. We find that the SLAO had passed the order for compensation of acquired land, which had been utilised but nowhere he had any authority under law to make any such observation that the land, which is unutilised can not be reverted back to the tenure holders. The said discretion lies to the State Government under Section 48 (1) of the Act, 1894. In absence of any such order of the State Government, straightaway the SLAO had no right to reject the claim or even make an observation to that effect. 7. We find that till date the claim of the petitioners qua release of land/ denotification of unutilised land under the Act, 1894 had not been redressed by the competent authority. It is also alleged that till date the compensation had also not been disbursed. The petitioners are agitating their grievance since 2014 and even though positive direction was issued by the Division Bench vide order dated 2.4.2014 in earlier round of litigation. We find that the rightful claim of the petitioners is to be considered by the competent authority. WRIC No. 67884 of 2015 4 8. In view of above, the order impugned dated 14.09.2015 cannot sustain and is accordingly set aside. The matter is relegated to the respondent no.1 to consider the application of the petitioners under Section 48 of the Act, 1894 and redress the grievance of the petitioners in accordance with law expeditiously and preferably within three months from the date of production of certified copy of this order but certainly after taking necessary comments from the acquiring authority. Meanwhile, in case the petitioners had not received compensation of acquired land, which is utilised by the Authority, they may approach to the SLAO for disbursement of the same. 9. The writ petition stands partly allowed accordingly. September 12, 2025 SP/ WRIC No. 67884 of 2015 5 (Anish Kumar Gupta,J.) (Mahesh Chandra Tripathi,J.) Digitally signed by :- SURYA PRAKASH High Court of Judicature at Allahabad