Shyam Lata Jauhari v. Collector, Allahabad — 1990 DIGILAW 673 (ALL)

JUDGMENT N. N. Mithal, J. 1. The petitioners herein are admittedly owners of plot No. 83 area 4-9-0 bighas in Mahewa Purab Patti, Uparhar in the district of Allahabad. A notification under Sec. 4 (1) of the Land Acquisition Act was issued on 8-12-1986 indicating the Govt., intention to acquire the said land for the purposes of dumping garbages and rubbish for the purposes of respondent no. 4, the Nagar Mahapalika. Allahabad. This notification was followed by declaration under section 6 of the Act on 13th February, 1987 read with section 17 (4) and possession from the petitioner was taken in December, 1987. Its possession was handed over to respondent no. 4 by the Collector on 4th January, 1988. 2. The estimated market value of the property was initially assessed at Rs. 2,49,4000 which was later on re-determined as Rs. 623,000/-. The petitioner claimed that they were entitled to receive 80% of the estimated value of the compensation before delivery of possession over the land. Since no such payment had been made, the petitioner came up before this court in Civil Misc. Writ Petition No. 896 of 1959 seeking direction against the respondent. State of U. P., Collector, Allahabad and the Nagar Mahapalika, Allahabad to pay the aforesaid amount. Despite respondent no. 4 having put in appearance in that petition no counter affidavit was filed by the Nagar Mahapalika. The petition was ultimately allowed on 25th April, 1989 after hearing the counsel for State of U. P. directing the respondents to make payment of 80% of the estimated value of the land within two months and in case the estimated market value had not already been determined, also to do so within the aforesaid period. Subsequent to the decision of the said writ petition the estimated market value of the land was finally determined as Rs. 6,23,000/- and the Collector Allahabad asked the respondent no. 4 to make payment of 80 percent of that amount i.e. Rs. 4,98,400/- to the petitioner after adjusting the amount of Rs. 1,00,000/- already deposited by, him. This was done but in the mean time the award was given by the Special Land Acquisition Officer on 19th August, 1989 awarding a total sum of Rs. 14,73,32023 including the cost of land and constructions, solatium at the rate of 30 percent and interest at the rate of 12 percent. 1,00,000/- already deposited by, him. This was done but in the mean time the award was given by the Special Land Acquisition Officer on 19th August, 1989 awarding a total sum of Rs. 14,73,32023 including the cost of land and constructions, solatium at the rate of 30 percent and interest at the rate of 12 percent. Since the respondents failed to pay the amount on the publication of the award despite repeated requests made by the petitioner, they have approached this court for a writ of mandamus to command the respondents to pay the awarded amount of compensation after adjusting any amount already paid. 3. The petition is resisted by the Nagar Mahapalika inter alia on the ground that the estimated value of the acquired land was arbitrarily raised from Rs. 2,49,400/- and even the Special Land Acquisition Officer has arbitrary determined the market value of the land and construction as on the date of notification under section 4 of the Land Acquisition Act at nearly Rs. 15 lacs which is highly excessive; that the land was acquired for the scheme for dumping garbage and rubbish under a World Bank Loan but the World Bank having withdrawn the same the respondents are left with no funds and have decided not to pursue this scheme; that the land was low lying and in nature of big depression and, therefore, unsuitable for use as dump for garbage and rubbish; that the respondent has already approached the State Government for with drawl of the scheme and to de notify the same and lastly that the writ petition was not maintainable as the remedy of the petitioner lay in realising the amount by executing the award as a decree. 4. In the rejoinder affidavit the petitioners have controverted the allegations made by the respondents and it is urged that the scheme cannot be withdrawn in view of section 48 (1) of the Land Acquisition Act since possession has already been delivered and that the award made by the Collector is not executable as a decree. Sri Ashob Mohiley, Standing Counsel for the Nagar Mahapalika, has mainly stressed that the respondent has already approached the State Government for withdrawing the scheme as "it was no longer feasible to go ahead with the scheme in view of the nature of the land as also due to with drawl of the promised loan by the World Bank. Sri Ashob Mohiley, Standing Counsel for the Nagar Mahapalika, has mainly stressed that the respondent has already approached the State Government for withdrawing the scheme as "it was no longer feasible to go ahead with the scheme in view of the nature of the land as also due to with drawl of the promised loan by the World Bank. It is also urged that the amount can be recovered by executing the same as a decree as provided in section 26 read with section 53 of the Land Acquisition Act according to which the award is deemed to be a decree and CPC has been made applicable to the proceedings. 5. So far as the first contention is concerned it has no legs to stand on. Suitability of the land for the purposes for which the land was sought to be acquired is not a relevant consideration if proceedings have indeed been taken for acquiring the land for the aforesaid purposes. The scheme must have been initiated at the instance of respondent Nagar Mahapalika and it is not possible to believe that the land had neither been surveyed nor inspected before the scheme was initiated. It is too late now for the respondent Nagar Mahapalika to contend that the land was not suitable for the purpose it was acquired. The mere fact that the World Bank has withdrawn its proposal to advance a loan for the said scheme is also not relevant as also the fact that the respondent has approached the State Government for with drawl of the scheme. There is also no un-assailed material on record that such a request had been forwarded to the State Government. Be that as it may, even assuming such a request has been made, section 48 (1) will step in its way. According to the said section the liberty given to the Government to withdraw from acquisition of any land can be exercised until possession of the land is obtained in pursuance of the notification. 6. A faint effort was then made to urge that possession had not been delivered to the respondent. However, in view of memo of delivery of possession (Annexure "B") to the rejoinder-affidavit in respect of plot no. 83 in question by the Collector to the representative of the Nagar Mahapalika on 4-1-1988, this contention too has no merit. 6. A faint effort was then made to urge that possession had not been delivered to the respondent. However, in view of memo of delivery of possession (Annexure "B") to the rejoinder-affidavit in respect of plot no. 83 in question by the Collector to the representative of the Nagar Mahapalika on 4-1-1988, this contention too has no merit. Besides this, some correspondence on record will go to show that the Collector after obtaining possession from the petitioner had handed over the same to the respondent Nagar Mahapalika. In the face of these facts it is not possible to accept that possession had not been delivered to it. That being so section 48 (I) will clearly bar the hands of the State Government from withdrawing the notification now notwithstanding any request by the respondent Nagar Mahapalika and any such move will prove futile and of no avail. In Lt. Governor of Himachal Pradesh v. Avinash Sharma, AIR 1970 SC 1576 , the apex court took the view that after possession has been taken pursuant to a notification under section 17 (1) the land is vested in the Government and the notification cannot be cancelled under section 21 of the General Clauses Act, nor can the notification be withdrawn in exercise of the powers under section 48 of the Land Acquisition Act. "When possession of the land is taken under section 17 (1) the land vests in the Government. There is no provision by which land statutorily vested in the Government reverts to the original owner by mere cancellation of the notification." As for the contention that petition is not maintainable on the ground of alternative remedy as the amount awarded by way of compensation can be recovered by executing it as a decree under section 26 of the Land Acquisition Act, suffice it to say that an award by the Collector is not a decree and it does not stand on the same pedestal as an award made by the Court on a reference being made under Section 18 of the Land Acquisition Act. 7. A look at the Scheme of the Land Acquisition Act will reveal that Part II of the Act deals with the initial 9 stages of acquisition proceedings which take place before the Collector which also includes Section 11 which deals with enquiry and determination of compensation while making the award. 7. A look at the Scheme of the Land Acquisition Act will reveal that Part II of the Act deals with the initial 9 stages of acquisition proceedings which take place before the Collector which also includes Section 11 which deals with enquiry and determination of compensation while making the award. Part III of the Act, on the other hand, deals with proceedings consequent upon a reference against the Collector's award. Section 26 prescribes the manner and form of the award which the Court gives on a reference being made to it by the Collector under Section 18. 8. The words that at once attract attention in Section 26 are that 'every award under this part shall be in writing signed by the Judge and......' The expression 'this part' excludes the award made by the Collector under section 11. Besides, the award, this section speaks of is the one given under the signature of the Judge and not Collector. Thus only the award given by the court on a reference being made under section 18 and which is signed by the Judge can be deemed to be a decree under Section 26 capable of being executed as such by the Civil Court. In the instant case though the reference has been made under section 18 but it is yet pending and here we are only concerned with the Collector's award given under section 11. In our view Section 26 is not attracted in respect of an award under section 11. The view that we are inclined to take is also supported by a recent unreported decision of another Division Bench of this court in Civil Misc. Writ Petition No. 7487 of 1990 (Shiv Sahkari Avas Samiti Limited Allahabad v. Allahabad Development Authority) rendered by Honourable K. P. Singh and Honourable K. K. Birla J J. on 8-5-1990. 9. As against this the respondents' learned counsel placed reliance on two decisions. In K. Dhanapalan v. The Assistant Collector 1966 MLJ 302 the Madras High Court held that an award under the Land Acquisition Act can be reviewed with the aid of Order 47 of the Code. T he facts of the said case, however, reveal that the court was dealing with the award of the court on a reference made to it and not with the Collector's award. This case can, therefore, provide no assistance to the respondents. T he facts of the said case, however, reveal that the court was dealing with the award of the court on a reference made to it and not with the Collector's award. This case can, therefore, provide no assistance to the respondents. Same is the position in the next case i. e. 1969 BLR 703 where also the Court was dealing with an award made under Part III of the Land Acquisition Act. Thus both the cases cited by the respondents are of no avail to it. 10. The only point that remains is whether the petitioner is entitled to the amount as awarded by the collector. Section 31 of the Land Acquisition Act provides that on making an award under Section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award, and shall pay it to them unless presented by some one or more of the contingencies mentioned in the next sub-section. It is undisputed that in the present case none of the contingencies as contemplated by sub-clause (2) of Section 31 exist. Thus as soon as the award has been made, it was the bounden duty of the Collector to pay the compensation amount to the interested person. It is submitted on behalf of the Nagar Mahapalika that since the acquisition has been made by the State, the liability to pay the compensation is also that of the State and no direction can properly be issued to the Nagar Mahapalika in this respect. We cannot agree with this submission for the simple reason that acquisition of land has been made for and on behalf of the Nagar Mahapalika and in any case the Collector will ultimately have to recover the amount from the Nagar Mahapalika. The respondents are, therefore, under a statutory obligation to make this payment. They having failed to do so, they have clearly acted in violation of this statutory duty. There is no other equally efficacious remedy available to them, much less an alternative one. As it is, even the right to challenge the quantum of compensation awarded rests only with the claimants and neither the acquiring body nor the Collector have a right to question it. Even the court while hearing the reference cannot reduce the compensation amount. There is no other equally efficacious remedy available to them, much less an alternative one. As it is, even the right to challenge the quantum of compensation awarded rests only with the claimants and neither the acquiring body nor the Collector have a right to question it. Even the court while hearing the reference cannot reduce the compensation amount. In such a situation, the petitioners' right to the amount awarded remains un-assailable and unquestionable at the instance of the respondents. 16. In view of what we have said' above we are clearly of opinion that the petition must succeed and is hereby allowed. Let a writ of mandamus issued commanding the respondents to dispose of the petitioner's application for payment of the compensation as awarded by the Collector within two months from the date of presentation of a certified copy of this order before the respondents in accordance with law. There will be no order as to costs. 17. The petition is disposed of accordingly. Petition allowed.