State Of U. P. v. Mithilesh — 1991 DIGILAW 463 (ALL)

JUDGMENT P. P. Gupta, J. - 1. This first appeal has been filed by the State of U. P. and U. P. Avas Evam Vikas Parishad, Lucknow (hereinafter referred to as the Parishad) under section 54 of the land Acquisition Act, 1984 (hereinafter referred to as the Act) against the Award dated 9-10-87 given by Sri G. K. Gupta, Presiding Officer, Nagar Mahapalika Tribunal, Agra in a Reference under section 18 of the Act having been made by the Special Land Acquisition Officer, U. P. 2. The Nagar Mahapalika, Agra on 12-4-1960 notified under section 357 of the U. P. Nagar Mahapalika Adhiniyam (hereinafter referred to as Mahapalika Adhiniyam) an Improvement Scheme called "Ghatwasam Grih Asthan Evam Sarak Yojna, Agra". It was a combination of a housing accommodation scheme and a street scheme This Improvement Scheme was framed for acquisition of land for providing land for house, for street and for general improvement. The finalised scheme was published under section 363 of Nagar Mahapalika Adhiniyam on 26th September 1964. The Nagar Mahapalika entered into an agreement with the Housing Board constituted under the U. P. Avas Evam Vikas Parishad Adhiniyam 1965. The agreement was executed on May 31, 1968 under which the Nagar Mahapalika transferred the execution of aforesaid Scheme to the Housing Development Board and since then the scheme was being executed by the said Board. In the said scheme, land involved in the present appeal, measuring 25 Bighas. 9 Biswas and 3 Biswansi situate in village Ghatwasam Mushtakil Tahsil and district Agra was acquired and its compensation was determined by an Award dated 24-11-72 by the Special Land Acquisition Officer. 3. Feeling aggrieved by the Award, a Reference under section 18 of the Act was sought for which was sent to the Nagar Mahapalika Tribunal, Agra on 11-1-83. The Tribunal accepted the claim of the respondents in part only and gave an Award on 9-10-87. 4. After the said award, the State of U. P., appellant no. 1, applied on 20-10-1987 before the Tribunal for grant of a certificate of fitness to file an appeal before this court under sub-section (1) of Section 381 of the Mahapalika Adhiniyam. The Tribunal granted the certificate to the appellant No. 1 on 11-11-1987. The appellants preferred the present appeal on 2-3-1988 challenging the said Award of the Tribunal. 5. The respondents by. The Tribunal granted the certificate to the appellant No. 1 on 11-11-1987. The appellants preferred the present appeal on 2-3-1988 challenging the said Award of the Tribunal. 5. The respondents by. an application dated 19th March, 1990 moved before this court submitted that though the appeal was presented on 2-3-88, but the appellants had not deposited the entire amount payable under the Award before or on the date of filing the appeal as was mandatory under subsection (3) of Section 381 of the Mahapalika Adhiniyam. As such, the contention of the respondents was that the present appeal having been filed without dispositing the amount under the award, is not maintainable and is liable to be dismissed for non-compliance of the mandatory provisions of section 381 (3) of the Mahapalika Adhiniyam. 6. The learned Standing counsel for the State of U. P., the learned counsel for the Parishad and also the learned counsel for the respondents Shri K. C. Jain, who argued the appeal with great ability and clerity, were heard at length and the record of the case was also perused. It was not disputed before us that the amount of compensation as awarded by the Tribunal by its Award dated 9-10-87 had not been deposited before or on the date of filing the present appeal. This Court is, therefore, to consider the effect of it. It is to be decided whether the present appeal as filed by the State of U. P. and the Parishad would be maintainable notwithstanding the non-deposit of the amount of Award. 7. It was submitted on behalf of the respondents that the scheme was initially notified under section 357 of the Mahapalika Adhiniyam by the Nagar Mahapalika, Agra on 12th April, 1960. The finalised scheme was also published on 26th Septembr 1964 by the Nagar Mahapalika Agra under section 363 of the Mahapalika Adhiniyam. After the Award by the Tribunal, the State of U. P., applied before the Tribunal under section 381 (1) (a) of the Mahapalika Adhiniyam for granting a certificate that the case is a fit one for appeal. The certificate granted to the State of U. P. by the Tribunal on 11-11-87 which was issued on 18-11-87. IT was thereafter that the present appeal was filed on 2-3-88 by the State of U. P. and the Parishad. The certificate granted to the State of U. P. by the Tribunal on 11-11-87 which was issued on 18-11-87. IT was thereafter that the present appeal was filed on 2-3-88 by the State of U. P. and the Parishad. Hence, it was submitted that the present appeal shall be deemed to have been filed under section 381 of the Mahapalika Adhiniyam. That being so, the provisions of sub-section (3) of Section 381 of the Act will be applicable to the appeal. The said sub-section (3) reads as below : (3) Not with sanding anything contained in the foregoing provision, no appeal shall lie under this section unless the appellant has deposited the money which he is liable to pay under the order from which the appeal is filed". 8. A Division Bench of this court comprising of Hon'ble K. C. Agarwal, J. (as he then was) and Hon'ble G. P. Singh, J. First appeal No. 241 of 1982; Collector Agra and another v. Smt. Neeta, decided on 5-2-85 has held that the requirement of the deposit under sub-section (3) of Section 381 of the Mahapalika Adhinivam is mandatory in nature. Another Division Bench consisting of ourselves has taken the same view in First Appeal No. 115 of 1982 ; Collector Agra and another v. I. C. Jain, decided on 18-2-199!. It is undisputed that the appellants did cot deposit the money which they are liable to pay under the award dated 9-10-87 of the Tribunal before or on the date of filing the appeal. As such the appeal is prima facie not maintainable in view of the mandatory provisions of sub-section (3) of Section 381 of the Mahapalika Adhiniyam. On behalf of the appellants, it was contended that the persent appeal cannot be said to be an appeal under section 381 of the Act. According to them the appeal will lie under section 66 of U. P. Avas Evam Vikas Parishad Adhiniyam 1965 (hereinafter referred to as Parishad Adhiniyam). Section 66 of the said Adhiniyam is as below : (1) An award of the Tribunal in a case relating to the acquisition of land under the land Acquisition Act, 1894 (Act No. I of 1894), as modified by the Schedule to this Act, shall be deemed to be an award of the court under that Act and shall, subject to the provisions of Section 54 of that Act, be final. (2) Any other decision of the Tribunal under that Act shall be final. 9. The provisions of sub-section (1) of section 66 of the Parishad Adhinyiam, as quoted above, will apply to an Award of the Tribunal if the land acquired under the Land Acquisition Act, 1894, as modified by the Schedule to the U. P. Avas Evam Vikas Parishad Adhiniyam. Only in that event the Award of the Tribunal shall be deemed to be an award of the court under Land Acquisition Act and will be subject to the provision of section 54 of the Act which provides for an appal against the Award of the Tribunal. In the case, the land was not acquired under the provisions of the Land Acquisition Act, as modified by the Schedule to Parishad Adhiniyam, 1965. The land was acquired under the provisions of the Land Acquisition Act, as modified by the provisions of the Mahapalika Adhiniyam. As said above, the scheme for which the acquisition of land was made, was initially notified under section 357 and was subsequently finalised under section 363 of the Mahapalika Adhiniyam. As such, the provisions of sub-section (1) of Section 66 of the Parishad Adhiniyam will be inapplicable and the appellants will not have a right to file an appeal under section 54 of the Act. 10. It was next argued on behalf of the appellants that the said scheme was transferred to the Housing Board under an agreement between the Nagar Palika and the Housing Board under an agreement dated 31-5-1968 and so, in view of the provisions of section 65 of the Parishad Adhiniyam, the award shall be deemed to have been made under the provisions of the Parishad Adhiniyam and not under the provisions of the Mahapalika Adhiniyam. Therefore, the present appeal cannot be deemed to be an appeal filed under section 381 of the Mahapaiika Adhiniyam. The argument, therefore, was that the present appeal will be maintainable dispite the amount of award not having been deposited on or before the filing of the appeal as there is no parallel provision like Section 381 of the Mahapalika Adhiniyam in Parishad Adhiniyam. The submission made by the learned counsel for the appellants, to our mind, is mi-conceived. Firstly, the aforesaid Scheme itself was not transferred to the Housing Board. Such a transfer of the Scheme itself is envisaged under section 44 of Parishad Adhiniyam. The submission made by the learned counsel for the appellants, to our mind, is mi-conceived. Firstly, the aforesaid Scheme itself was not transferred to the Housing Board. Such a transfer of the Scheme itself is envisaged under section 44 of Parishad Adhiniyam. It is, however, not so, in this case. As the agreement dated 31-5-1969 entered into between the Nagar Mahapalika, Agra and the Housing Development Board will show, only, the execution of the Scheme was traneferred to the Housing Board as has been provided for under sub-section (1) of section 47 of the Parishad Adhiniyam, 1965. The said provision runs as below : "47. Execution of other schemes by the Board (1) without prejudice to the power of the State Government under sub-section i2), 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." 11. Our attention was drawn to the words "as if it had come into force under sub-section (5) of section 32 of this Act" and it was urged that these words must be deemed to mean that the Scheme itself was framed and sanctioned under the Parishad Act and for such Schemes framed and sanctioned under the Parishad Act, the provisions of section 381 of the Mahapalika Adhiniyam will not be applicable. 12. We are, however, unable to accept this submission made on behalf of the appellants. The submission assumes that the Housing Board in the course of the execution of the Improvement Scheme conducts the proceedings for the acquisition of land. The fact is that both under the Mahapalika Adhiniyam as well as the Parishad Adhiniyam the land can be acquired for the purposes of Improvement Schemes framed under those Acts. Under both the Acts proceedings for acquisition of land are conducted under the Land Acquisition Act, 1894 as modified by the respective Acts. The provisions of the Land Acquisition Act as modified by both the Acts show that the acquisition has to be done by the said Act through the Collector. The Nagar Mahapalika or the Housing Board acts as the acquiring body. The provisions of the Land Acquisition Act as modified by both the Acts show that the acquisition has to be done by the said Act through the Collector. The Nagar Mahapalika or the Housing Board acts as the acquiring body. They have to pay to the State Government through the Collector the amount of compensation payable to the owners of the land sought to be acquired. The Collector after acquiring the land transfers it to the Nagar Mahapalika or the Housing Board. On such transfer the land vests in the Nagar Mahapalika or the Housing Board as the case may be. It is after this event that the Nagar Mahapalika or the Housing Board commences the execution of the Improvement Schemes. When a Scheme is transferred to the Housing Board under section 47 (1) of the Parishad Adhiniyam, the Housing Board can execute it only after the land has been acquired and transferred. The position is, therefore, clear that the proceeding for acquisition of land are distinct, independent and separate from the proceedings done in the course of the execution of the scheme. The former proceedings are done by the Collector as the representative of the State. Subsequent proceedings regarding execution are conducted by the Nagar Mahapalika or the Board to whom the execution of such scheme is transferred. The acquisition proceedings themselves are not transferable by the Nagar Mahapalika to the Housing Board. The occasion for the Housing Board to conduct the acquisition proceedings, therefore, does not arise. Subsequent proceedings regarding execution are conducted by the Nagar Mahapalika or the Board to whom the execution of such scheme is transferred. The acquisition proceedings themselves are not transferable by the Nagar Mahapalika to the Housing Board. The occasion for the Housing Board to conduct the acquisition proceedings, therefore, does not arise. The acquisition proceedings, will be done by the State on behalf of the Nagar Mahapalika despite the execution of the Scheme for which the acquisition of land has been made having been transferred to the Housing Board under subsection (1) of section 47 of the Parishad Adhiniyam : Sub-section (4) of section 47 provides as below : "(4) Whenever the execution or further execution of a scheme is transferred to the Board under sub-section (1) or 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, inter alia, provides that, when the execution of a scheme is transferred to the Board under sub-section (1) any legal proceedings under the Land Acquisition Act pending in relation to that scheme by or against the Nagar Mahapalika may be continued, prosecuted or enforced by or against the Board. This shows that in place of the Nagar Mahapalika, the Board becomes the acquiring body. The proceedings for acquisition which were lending continued as they were with only a substitution of the acquiring body. This clearly shows that the acquisition proceedings were not intended to be continued under the provisions for acquisition of land under the Land Acquisition Act as modified by the Parishad Adhiniyam. 13. The proceedings for acquisition which were lending continued as they were with only a substitution of the acquiring body. This clearly shows that the acquisition proceedings were not intended to be continued under the provisions for acquisition of land under the Land Acquisition Act as modified by the Parishad Adhiniyam. 13. Section 65, of the Parishad Adhiniyam, which according to the learned counsel for the appellants was applicable in this case, provides that any case pending before a Tribunal constituted under the U. P. Nagar Mahapalika Adhiniyam with respect to acquisition of land for a Mahapalika in connection with an Improvement Scheme under the said Adhiniyam which, under sub-section (1) or sub-section (2) of section 47, is transferred to the Board, shall, upon such transfer stand transferred to the Tribunal under section 64 of the Parishad Adhiniyam and the Tribunal shall proceed further with the case from the stage at which it was transferred to it in accordance with the provisions of the Parishad Adhiniyam and the rules framed thereunder. This provision lays down a condition precedent for the application thereof that the case should be pending before the Tribunal on the date of such transfer of the Improvement Scheme. In this case, the scheme was transferred on 31-5-1968. The award by the Special Land Acquisition Officer was made on 24-11-1972. A Reference under section 18 of the Land Acquisition Act was made on 11-1-83. The case before the Tribunal was, therefore, not pending on the date the improvement scheme was transferred to the Housing Board. The provisions of section 65 will, therefore, not be applicable to the present case. 14. Even otherwise, an award made by the Tribunal in this case, cannot be said to be an Award made under the provisions of Parishad Adhiniyam, 1965. The provision under section 65 shows that the reference proceedings, if any, which may be pending before the Tribunal constituted under the Nagar Mahapalika Adhiniyam. stand transferred to the corresponding Tribunal under the Parishad Adhiniyam. The provision under section 65 shows that the reference proceedings, if any, which may be pending before the Tribunal constituted under the Nagar Mahapalika Adhiniyam. stand transferred to the corresponding Tribunal under the Parishad Adhiniyam. If the Legislature had by enacting the legal fiction under section 47 (1) and (2) intended that the acquisition proceedings unto the stage of making of award by the Special Land Acquisition Officer (S.L.O.) shall stand transferred under the Parishad Adhiniyam, there was no need for enacting section 65, because if the Awards by the S.L.O. were to be made under the Parishad Adhiniyam, no reference could have been possible under the Mahapalika Adhiniyam against such awards. Section 65 clearly indicates that proceedings prior to the making of reference were not intended to be transferred. It clearly provides that the Tribunal shall proceed further with the case from the stage at which it was transferred to it, in accordance with the provisions of Parishad Adhiniyam and the rules framed thereunder. So the proceedings prior to such transfer, if any, of the case will continue under the provisions of the Land Acquisition Act as modified by the Mahapalika Adhiniyam and these proceedings will be upto the stage of the making of an Award. In this connection a reference may be made to a decision dated 17th May, 1972 of a Division Bench of this Court consisting of Hon’ble Satish Chandra, J. (as he then was) and Hon'ble J. S. Trivedi. J. In Special Appeal No. 221 of 1972; Dr. Prakash Narain Gupta v. State of U. P. and others against the judgment of Hon'ble Mr. Justice G. C. Mathur. This case also was regarding the same scheme namely "Ghatwasam Grih Asthan Evam Street Yojna" notified under sectian 357 of the U. P. Nagar Mahapalika Adhiniyam and finalised under section 363 of the said Adhiniyam. By an agreement dated May 31, 1968 entered into between Nagar Mahapalika, Agra and the Housing Development Board, the execution of the Scheme was transferred to the Housing Board. Since in view of the provisions of section 365 (4) of the Mahapalika Adhiniyam, the Improvement Scheme was not completed within the statutory period, the further execution of the scheme was challenged on the ground that the period of time provided under section 365 (4) of the Mahapalika Adhiniyam having expired, the scheme became dead, and could not be executed any further. It was urged on behalf of the Housing Board that the provision of Section 365 (4) of Mahapalika Adhiniyam was not applicable to the scheme because of the transfer of the execution of the scheme to the Housing Board under the Parishad Adhiniyam which had no parallel provision like Section 365 (4) of the Mahapalika Adhiniyam. After discussing the various provisions of the Parishad Adhiniyam, the learned Judges held that the proceedings for the acquisition of the land are distinct and independent of the proceedings done in the course of the execution of the scheme. Since the proceedings for acquisition of land commenced under the Land Acquisition Act as amended by the Mahapalika Adhiniyam which provided for limitation for executing the schemes under section 365 (4) of the Mahapalika Adhiniyam that the provision will continue to apply even though the execution of the Improvement Scheme was transferred to the Housing Board. 15. In view of the above discussion we are of the view that notwithstanding the transfer of the execution of the scheme which was originally undertaken by the Nagar Mahapalika, Agra under Mahapalika Adhiniyam to the Housing Board, the proceedings had to be continued under the provisions of the Land Acquisition Act, as modified by the Mahapalika Adhiniyam and those proceedings continued upto the stage of the making of the impugned Award. The appeal against such an Award will, therefore, lie only under section 381 of the U. P. Nagar Mahakalika Adhiniyam as was rightly done by the State of U. P. in obtaining a certificate from the Tribunal that the case is a fit one for appeal. It was, therefore, mandatory for the appellants to have deposited the money under the Award on or before the filing of the appeal as provided under sub-section (3) of section 381 of the. Mahapalika Adhiniyam and failure to do so would result in making the appeal not maintainable. Since the said amount has not been deposited, the above appeal is not maintainable and is liable to be dismissed on this ground alone. 16. For the reasons given above, the memo of appeal is hereby rejected for non-compliance of section 381 (3) of Mahapalika Adhiniyam. No order as to costs.