Smt. Kanak & Anr vs U.P. Avas Evam Vikas Parishad & Ors

Whether 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 Civil Misc.

Writ Petition No. 11625 of 1996.

BACKGROUND FACTS:

The 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').

Agra Nagar 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.

A 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.

Allegedly, 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.

According 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 the Act.

The 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:

"Admit.

Issue notice on the question of limitation,

call for record. Put for hearing after receipt

of record as the land acquired in 1964.

Learned counsel for the claimants entered

appearance. He may file counter affidavit to

the application u/s 5 of Limitation Act.

Learned 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.

The 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.

The 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 maintainable.

It was held:

"The appeal already filed by the Parishad is

not maintainable and so the Parishad cannot be

debarred from filing writ petition.

The alternative remedy of Appeal under the

Nagar Mahapalika Adhiniyam is onerous.

Since no formal notice has been served on the

Parishad, as per UPAEVP Vs. Gyan Devi, AIR 1995

SC 724, the writ petition under Article 226, is

entertainable.

The 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:

(i) The market value determined by the Tribunal was reduced;

(ii) The statutory and consequential benefits of 1967 Act and

1984 Act were denied;

(iii) The claim of solatium was disallowed;

(iv) Damages under Section 48A of the Land Acquisition Act were

rejected.

Whereas 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.

SUBMISSIONS:

Mr. 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

behalf has been placed on Sadhna Lodh Vs. National Insurance Company

Ltd. [(2003) 3 SCC 524] and Seth Chand Ratan Vs. Pandit Durga Prasad

[(2003) 5 SCC 399].

In any 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

has been placed on Bombay Metropolitan Region Development Authority Vs.

Gokak Patel Volkart Ltd. [(1995) 1 SCC 642].

In the alternative, (i) it 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. (ii) the 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

Parishad Vs. Gyan Devi (Dead) By LRs. And Others [(1995) 2 SCC 326].

The 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

Singh Vs. Daryao [(1966) 3 SCR 300], Seth Chand Ratan (supra), Shanker

Ram Chandra Vs. Krishnaji [(1969) 2 SCC 74] and Kanai Lal Sethi Vs.

Collector of Land Customs, Calcutta [(1956) 60 Calcutta Weekly Notes

1042].

In the 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

on Badri Narian Singh Vs. Kamdeo Prasad Singh [(1962) 3 SCR 759] and

Premier Tyres Vs. KSRTC [(1993) Supp. 2 SCC 146].

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.

According 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.

BENEFIT UNDER THE 1984 AMENDING ACT:

So far as the question as to whether the claimants were entitled

to solatium interest and additional amount is concerned, the same need

not detain us inasmuch as this Court in Savitri Cairae Vs. U.P. Avas

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

Parishad Vs. Jainul Islam [(1998) 2 SCC 467] Nagpur Improvement Trust

Vs. Vithal Rao [(1973) 1 SCC 500] and Nagpur Improvement Trust Vs.

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.

MAINTAINABILITY OF THE APPEAL:

Section 47 of the 1965 Adhiniyam reads thus:

"Execution of other schemes by the Board:

(1) 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.

... ... ... ...

(4) 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.

In 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:

"Appeals -1) An appeal to the High Court shall

lie from a decision of the Tribunal, if –

(a) the Tribunal grants a certificate that

the case is a fit one for appeal, or

(b) the 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).

(2) An 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;

(b) the decision having failed to

determine some material issue of law

or usage having the force of law;

(c) a 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."

A bare 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).

The 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.

Having 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.

Once it is held that the appeal was not maintainable, the same was, for

all intent and purport, non-est in the eye of law.

Thus, 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.

Once 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.

MAINTAINABILITY OF THE WRIT APPEAL:

The 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.

The 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).

The 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.

Under 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.

Furthermore, 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 alternative remedy.

In L. Hirday Narain Vs. Income-Tax Officer, Bareilly [AIR 1971 SC

33: (1970) 2 SCC 355] the law was laid down in the following terms:

"We 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.

SERVICE OF NOTICE:

It is 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) held:

"In 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 taken up.

Service 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.

The respondent filed a writ petition because it was seriously

prejudiced. This Court in Gyan Devi (supra) envisaged the following

legal situations:

"(i) No notice was given to the local authority

under sub-section (2) of Section 50 of the L.

A. Act and as a result the local authority

could not appear before the Collector to adduce

evidence.

(ii) Notice was served on the local authority

and in response to said notice the local

authority appeared before the Collector; and

(iii) 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 Collector."

The court laid down the criteria where the local authority would

be necessary party or proper party. It was observed:

"Since 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.

Where 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.

However, 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.

However, 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.

LEGALITY OF THE DEEDS OF ASSIGNMENT:

The High Court has held that the deeds of assignments are valid.

The 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.

We, however, in view of above, are not disposed to go into merit

of Civil Appeal No. 4171 of 1999 filed by the Parishad.

We, 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.

Keeping 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.