& Anr Vs. U.P. Avas Evam Vikas Parishad & Ors  Insc 425 (1 September 2003)
& S.B. Sinha.
with C.A. No. 4171 of 1999 S.B. SINHA, J :
and, if any, to what extent a Writ Petition will be maintainable at the
instance of the respondent-Parishad questioning an award made on a reference
under Section 18 of the Land Acquisition Act is the primal question involved in
these appeals, which arise of a judgment and order dated 20.5.1998 passed by a
Division Bench of the Allahabad High Court in First Appeal No. 549 of 1994 and
Petition No. 11625 of 1996.
respondent herein is a statutory body created under the provisions of Uttar
Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 (hereinafter referred to as
'the 1965 Adhiniyam').
Mahapalika, a body constituted under Uttar Pradesh Municipal Corporations Adhiniyam,
1959 framed a housing scheme entitled "Ghatwasan Grah Isthan Evam Sarak Yojna".
It issued a notification on 23.4.1960 under Section 357 of U.P. Nagar Mahapalika
Adhiniyam 1959 (hereinafter referred to as 'Mahapalika Adhiniyam') which is
equivalent to Section 4(1) of the Land Acquisition Act.
declaration purported to be in terms of Section 363 of the Mahapalika Adhiniyam
which is in pari materia with Section 6 of the Land Acquisition Act was issued
on 26.9.1964. The respondent - Parishad was constituted in terms of the 1965 Adhiniyam.
After the respondent-Parishad came into being, an agreement was executed
between the Mahapalika and the Parishad to transfer the execution of the said
scheme in terms of Section 47 of the 1965 Adhiniyam. In furtherance of the
aforementioned notification under Section 357 and a declaration under Section
363 of the Mahapalika Adhiniyam, the Special Land Acquisition Officer (SLAO)
took possession of the land sought to be acquired on or about 18.6.1971. An
award in relation thereto upon assessing the market value thereof was made by
the SLAO on or about 24.11.1972 at the rate of Rs. 1.34 per square yard. Allegedly,
in his award it was held that the acquired land was surrounded by various
colonies and localities and was of full building potentiality. Within the
determined amount of Rs. 89,914.24, a sum of Rs. 33,573.48 was paid to the
owners of the land but payment in relation to the rest thereof, namely, Rs.
56,340.76 was withheld having regard to the dispute of title in relation
thereto. The owners of the land purported to be aggrieved by and dissatisfied
with the quantum of compensation awarded by the SLAO moved an application for
reference before the Collector, Agra
on 1.1.1973. But no reference was made for a period of eight years. Several
registered deeds of sale, however, were executed by the owners in favour of
several persons assigning their compensation rights. The said assignees are
presently represented by the appellants.
the Tribunal constituted for adjudicating on the reference assessed the market
value of the land at the rate of Rs. 12/- per square yard by reason of two
awards in relation to some other lands; one of which is said to have been
accepted by the State.
to the appellants, having regard to the fact that the land in question was
contiguous to the lands which were the subject matter of reference, the
Tribunal also made an award on 24.5.1993 assessing the market value at the rate
of Rs. 12/- per square yard keeping in view the exemplar-Award. Other statutory
benefits in terms of the Land Acquisition (Amendment) Act, 1984 were also
granted. The Tribunal furthermore awarded damages in terms of Section 48A of
respondent-Parishad preferred an appeal thereagainst before the High Court
purported to be in terms of Section 381 of the Mahapalika Adhiniyam. The said
appeal, however, was barred by 100- days. No pre-deposit was also made in terms
of Sub-Section (3) of Section 381 of the Mahapalika Adhiniyam nor any fitness
certificate to prefer an appeal in terms of Sub-Section (1) of Section 381
thereof was granted. Despite the said defect, however, by an order dated 30th September, 1994 the High Court admitted the appeal
without granting special leave and passed the following order:
notice on the question of limitation, call for record. Put for hearing after
receipt of record as the land acquired in 1964.
counsel for the claimants entered appearance. He may file counter affidavit to
the application u/s 5 of Limitation Act.
Counsel for the appellant has served the memo of appeal and the copy of award
on learned standing counsel for respondent nos. 3 and 4. The notice is treated
sufficient." During pendency of the said appeal, the Parishad also filed a
writ petition against the award dated 24.5.1993 inter alia alleging therein
that the condition of pre-deposit was onerous.
appellants herein, however, moved an application for dismissal of the appeal
for alleged non-compliance of the mandatory provisions of Section 381 of the Mahapalika
Adhiniyam. In the Counter-Affidavit to the Writ Petition filed by them also,
the maintainability of the said appeal was came to be questioned.
First Appeal as also the writ petition were heard analogously and by reason of
a composite judgment dated 20.5.1998 the High Court , while dismissing the
First Appeal holding that the appeal under Section 54 of the Land Acquisition
Act was not maintainable as the respondent did not comply with the conditions
under Section 381 of the Mahapalika Adhiniyam; held that the writ petition was
appeal already filed by the Parishad is not maintainable and so the Parishad
cannot be debarred from filing writ petition.
alternative remedy of Appeal under the Nagar Mahapalika Adhiniyam is onerous.
no formal notice has been served on the SC 724, the writ petition under Article
226, is entertainable.
writ petition has been filed to avoid any controvery as to maintainability of
its appeal without deposit, which was not clear." In the Writ Petition,
the High Court decided the case on merits as a result whereof:
The market value determined by the Tribunal was reduced;
The statutory and consequential benefits of 1967 Act and 1984 Act were denied;
The claim of solatium was disallowed;
Damages under Section 48A of the Land Acquisition Act were rejected.
the claimants had filed the appeal against the judgment of the High Court from
the writ petition, the Parishad had filed the appeal against the dismissal of
the first appeal.
Sunil Gupta, the learned senior counsel appearing on behalf of the Appellants
would submit that keeping in view the fact that Section 381 of the Mahapalika Adhiniyam
provided for a statutory remedy, the writ petition was not maintainable. Reliance
in this [(2003) 5 SCC 399].
event as the first appeal was not withdrawn before filing the writ petition,
Mr. Gupta would urge, the respondent-Parishad could not have maintained two
parallel remedies. Reliance in this connection Gokak Patel Volkart Ltd. [(1995)
1 SCC 642].
was submitted that the High Court erred in entertaining the writ petition on
the ground of onerousness of pre-deposit, as no case had been made out for
overcoming the bar of alternative remedy.
finding of the High Court to the effect that no formal notice was served upon
the respondent-Parishad was contrary to the records of the case inasmuch as the
Parishad had full knowledge of the reference proceedings and as such it was not
entitled to take benefit of the decision of this Court in U.P. Avas Evam Vikas
learned counsel would argue that as the Parishad's appeal was dismissed, the
award and decree of the Tribunal has attained finality and, thus, the same
could not have been interfered with by allowing the writ petition. Reliance in
this connection has been placed on Sheodan Collector of Land Customs, Calcutta
[(1956) 60 Calcutta Weekly Notes 1042].
event it be held that the writ petition was not maintainable, it was argued,
the Parishad having not preferred any appeal against the writ judgment, the
decision of the Tribunal shall operate as res judicata. Reliance in this
connection has been placed Mr. M.N. Rao, the learned senior counsel appearing
on behalf of the respondent-Parishad, on the other hand, would submit that the
law was not settled at the time as regard locus of Parishad to file appeal
against the judgment of Reference Court and in that view of the matter the writ
petition was also filed. The learned counsel would contend that having regard
to the provisions contained in Section 18 of the Land Acquisition Act, the
appellants cannot be said to have derived locus standi to take part in the
proceedings before the Land Acquisition Tribunal or for that matter filing the
Appeal before this Court.
to the learned counsel, the deeds of assignment made in favour of the
appellants herein by the original claimants are illegal having regard to the
provisions contained in Section 23 of the Indian Contract Act. The learned
counsel would contend that the provisions of the Act were amended in the year
1984 so as to benefit the persons who are owners of the land and not imposters
like the appellants herein who have purchased litigation with a view to
unjustly enrich themselves.
UNDER THE 1984 AMENDING ACT:
as the question as to whether the claimants were entitled to solatium interest
and additional amount is concerned, the same need Evam Vikas Parishad and
Another [(2003) 6 SCC 255] relying on or on the basis of the decisions of this
Court inter alia in U.P. Avas Evam Vasantrao and others [(2002) 7 SCC 657] held
that the provisions of the Land Acquisition Act are to be read into the
provisions of the Adhiniyam. The ratio of the said Judgment shall apply to this
case also and thus, the claimants shall be entitled to all the benefits in terms
of the Land Acquisition (Amendment) Act, 1984.
OF THE APPEAL:
47 of the 1965 Adhiniyam reads thus:
of other schemes by the Board:
Without prejudice to the power of the State Government under sub-section (2),
the Board may, on such terms and conditions as may be agreed upon between the
Board and any other local authority, take over the execution or further
execution of any housing or improvement scheme undertaken by such local
authority, and the Board shall thereafter execute such schemes as if it had
come into force under sub-section (5) of Section 32 of this Act.
... ... ...
Whenever the execution or further execution of a scheme is transferred to the
Board under sub-section (1) of sub-section (2), any legal proceeding, including
any proceeding under the Land Acquisition Act, 1894 (Act No. I of 1894),
pending in relation to that scheme by or against the Nagar Mahapalika may be
continued, prosecuted or enforced by or against the Board." It is not in
dispute that on or about 31.5.1968 merely the execution of the Scheme alone was
transferred. Thus, the entire scheme was not transferred in favour of the Parishad
by the Nagar Mahapalika.
that view of the matter the procedures contained in the Mahapalika Adhiniyam
for the purpose of acquisition of land indisputably were to be followed.
Section 381 of the Mahapalika Adhiniyam reads thus:
-1) An appeal to the High Court shall lie from a decision of the Tribunal, if –
Tribunal grants a certificate that the case is a fit one for appeal, or
High Court grants special leave to appeal, provided that the High Court shall
not grant such special leave unless the Tribunal has refused to grant a
certificate under clause (a).
appeal under sub-section (1) shall lie only on one or more of the following
grounds, namely - (a) the decision being contrary to law or to some usage
having the force of law;
decision having failed to determine some material issue of law or usage having
the force of law;
substantial error or defect which may have produced an error or defect in the
decision of the case upon merits either on a point of fact or of law."
perusal of the aforementioned provision would clearly go to show that the appeal
can be preferred if a certificate is granted in that behalf by the Tribunal
certifying the same to be a fit case for appeal or a special leave is granted
by the High Court on the ground of refusal on the part of the Tribunal to grant
certificate under Clause (a).
respondent herein was not a party before the Tribunal. It, thus, could not have
applied for grant of a certificate for appeal to the High Court nor did it do
so in fact. In such a situation the question of the Tribunal's granting a
certificate or refusing to grant the same so as to enable the Parishad to
maintain an appeal before the High Court in terms of Sub-Section (1) of Section
381 did not arise.
regard to the nature of the provisions contained in Section 381, no appeal
could have been preferred by it nor was it maintainable as the conditions
precedent therefor were not capable of being satisfied.
it is held that the appeal was not maintainable, the same was, for all intent
and purport, non-est in the eye of law.
if the appeal preferred by the respondent-Parishad was not maintainable, the
question of complying with the conditions precedent therefor, namely,
depositing the awarded amount would also not arise.
it is held that the respondent could not have taken recourse to the provisions
of Section 381 of the Mahapalika Adhiniyam there cannot be any doubt whatsoever
that it was entitled to file writ petition.
OF THE WRIT APPEAL:
writ petition for the reasons stated hereinbefore was maintainable. It is one
thing to say that the High Court in exercise of its jurisdiction under Article
226 of the Constitution of India may not grant a relief inter alia on the
ground of existence of alternative remedy but it is another thing to say that
the writ petition was not maintainable at all.
legal position as regard intervention of a person for whose benefit the land
was to be acquired who was ultimately responsible for payment of compensation
was in a fluid state. There were decisions and decisions. The law was laid down
by the Court in Gyan Devi (supra).
Tribunal, as stated hereinbefore, had made this award as far back on 24.5.1993
and the respondent was advised to file appeal on 7.2.1994. Presumably having
regard to the objections as regard maintainability of the appeal taken by the
Registry of the High Court as also the objection raised by the appellants
herein the respondent was advised to file a writ petition.
the law based on judicial decisions as then existed Parishad had no locus standi
to file appeal before the High Court and therefore writ petition at the
instance of Parishad was only remedy available.
this writ petition was entertained. The appellants herein filed a counter
affidavit. The matter was argued on merit and in that view of the matter it is
too late in the day to contend that the respondent herein should have availed
(1970) 2 SCC 355] the law was laid down in the following terms:
are unable to hold that because a revision application could have been moved
for an order correcting the order of the Income-tax Officer under Section 35,
but was not moved, the High Court would be justified in dismissing as not
maintainable the petition, which was entertained and was heard on the merits."
In an ordinary situation this Court could have agreed with the contention of
Mr. Gupta to the effect that two parallel remedies could not have been allowed
to continue simultaneously as has been held in Bombay Metropolitan Region
Development Authority, Bombay (supra) but however, herein as noticed
hereinbefore, the appeal was not maintainable at the instance of the respondent
and, thus, all proceedings taken pursuant thereto were nullities. For the views
we have taken, the writ petition must be held to be maintainable.
not in doubt or dispute that no formal notice was served upon the respondent. A
notice to a person, for whose benefit the land is acquired or who is
responsible for payment of compensation amount, was mooted before the courts of
law on the construction of Section 50 of the Land Acquisition Act. It was held
that Sub-Section (2) of Section 50 must be construed as conferring a right of
notice to the local authority for whom at the stage of determination of the
amount of compensation before the Collector as well as the reference court. It
is not in dispute that the respondent was not represented even before the
Collector. In the aforementioned situation, this Court in Gyan Devi (supra)
other words the right conferred under Section 50(2) of the L. A. Act carries
with it the right to be given adequate notice by the Collector as well as the
reference court before whom the acquisition proceedings are pending of the date
on which the matter of determination of the amount of compensation will be
of such a notice, being necessary for effectuating the right conferred on the
local authority under Section 50(2) of the L. A. Act, can, therefore, be
regarded as an integral part of the said right and the failure to give such a
notice would result in denial of the said right unless it can be shown that the
local authority had knowledge about the pendency of the acquisition proceedings
before the Collector or the reference court and has not suffered any prejudice
on account of failure to give such notice." It is not correct to contend
that by reason of non-service of notice the respondent was not prejudiced. The
exception carried out by this Court in the matter of service notice to the
local authority is not only confined to its knowledge about the pendency of the
acquisition proceedings before the Collector or the reference court but also
any prejudice on account thereof. The said two conditions are to be read
conjunctively and not disjunctively.
respondent filed a writ petition because it was seriously prejudiced. This
Court in Gyan Devi (supra) envisaged the following legal situations:
No notice was given to the local authority under sub-section (2) of Section 50
of the L.
and as a result the local authority could not appear before the Collector to
Notice was served on the local authority and in response to said notice the
local authority appeared before the Collector; and
Notice was served on the local authority but in spite of service of such notice
the local authority failed to appear and adduce evidence before the
court laid down the criteria where the local authority would be necessary party
or proper party. It was observed:
the amount of the compensation is to be paid by the local authority and it has
an interest in the determination of the said amount, which has been given
recognition in Section 50(2) of the L. A. Act, the local authority would be a
person aggrieved who can invoke the jurisdiction of the High Court under
Article 226 of the Constitution to assail the award in spite of the proviso
precluding the local authority from seeking a reference. Such a challenge will,
however, be limited to the grounds on which judicial review is permissible
under Article 226 of the Constitution. In a case where the local authority has
failed to appear in spite of service of notice the local authority can have no
cause for grievance. Even in such a case it may be permissible for the local
authority to invoke the jurisdiction of the High Court under Article 226 of the
Constitution to assail the award if it is vitiated by mala fides or is
perverse." It was further held that presence of the local authority is
necessary for a just decision on the question involved in the proceedings
before the reference court as that would enable it to adduce evidence therein
and as such it was entitled to be impleaded as a party.
an appeal has not been filed by the State, it was held that such an appeal
would be maintainable with the leave of the Court.
in Gyan Devi (supra) this Court did not have any occasion to consider a
provision like one contained in Section 381 of the Mahapalika Adhiniyam and,
thus, the observations of the Court therein would not be relevant for the
purpose of the present case. The High Court, having regard to the facts and
circumstances of this case cannot be said to have committed any illegality in
allowing the writ petition.
having said so, in our opinion, the High Court should have remitted the matter
back to the reference court with a direction that the respondent-Parishad may
be impleaded as a party so as to enable it to cross-examine the witnesses
examined on behalf of the claimants and examine its own witnesses and bring on
records such other materials as it may seem fit and proper. It goes without
saying it would also be open to the claimants to adduce evidence contra.
OF THE DEEDS OF ASSIGNMENT:
High Court has held that the deeds of assignments are valid.
learned counsel appearing on behalf of the parties have addressed us at great
length on the said question. However, the High Court did not address itself on
the question as regards interpretation of Section 18 of the Land Acquisition
Act vis-à-vis the relevant provisions of the Mahapalika Adhiniyam. We, in the
facts and circumstances of this case, feel that as the respondent is being
given an opportunity to raise all contentions, it should also be given an
opportunity to raise the aforementioned contention also before the reference
court. For the views we have taken, it is not necessary for us to refer to the
other decisions relied upon by Mr. Gupta.
however, in view of above, are not disposed to go into merit of Civil Appeal
No. 4171 of 1999 filed by the Parishad.
therefore, allow the Civil Appeal No. 4170 of 1999 to the extent mentioned
hereinbefore. We, therefore, set aside the impugned judgment of the High Court
and remit the matter to the reference tribunal with a direction to implead the
respondent-Parishad as party therein and allow the parties to adduce their
respective evidence and raise all contentions therein.
in view the fact that the acquisition was made as far back in the year 1960, we
would request the Tribunal to dispose of the matter as early as possible and
preferably within the period of three months from the date of receipt of the
records. No Costs.