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1996 DIGILAW 175 (PAT)

Ram Chandra Prasad v. State of Bihar

1996-03-19

AFTAB ALAM

body1996
JUDGMENT Aftab Alam, J. The petitioner seeks to challenged the proceedings of Land Acquisition Case No. 1/77-78 in which the Land Acquisition Officer, Motihari invoking the provisions of section 17 of the Land Acquisition Act took into acquisition some lands belonging to the petitioner. The acquisition was made for the public purpose of setting up a sub-station of the Electricity Board at Raxaul. The proceedings are assailed on the ground that notices as required under sections 4 and 6 of the Act were issued without making due compliance with the provisions contained in those sections. 2. However, before the grounds of challenge could be elucidated by the learned counsel appearing on behalf of the petitioner, Mr. Narendra Kishore Sinha, G.P. III appearing for the State raised a preliminary objection that this writ petition was not maintainable. He pointed out that the petitioner had earlier come to this court seeking identical reliefs in CWJC No. 4997/82 which was disposed of or 20.12.1982 with a direction to the authorities to make payment of the compensation to the petitioner within three months from the date of the order. 3. It may be noted that in paragraph 10 of the present writ petition it has been stated as fellow:- “That earlier the petitioner sought the indulgence of this Hon’ble Court of Judicature at Patna through CWJC No.4997 of 82 for compensation of land acquired and or relief of genuine grievance and the Hon’ble Court was pleased to order on 20.12.82 for immediate payment of compensation within three months of its order by that too had filed and no payment was made yet.” 4. Again in para-2 of the Supplementary Affidavit filed on 13.3.1996 it has been stated in this regard as follows:- “The validity on the notification issued under section 4(1) of the Land Acquisition Act was challenged in CWJC No. 4997/1982 (Ram Chandra Parsad Vs. The State of Bihar & Others). This writ case was disposed of as the admission stage and the Hon’ble Court was pleased to order on 20.12.82 for payment of compensation within three months. But no order was passed regarding the validity of the said notification nor its merits were discussed and finding giving thereon. It is relevant to mention that the validity of the said notification among other grounds was also challenged on the point of application of urgency procedure.” 5. But no order was passed regarding the validity of the said notification nor its merits were discussed and finding giving thereon. It is relevant to mention that the validity of the said notification among other grounds was also challenged on the point of application of urgency procedure.” 5. I have also perused a copy of the earlier writ petition and I am satisfied that in his earlier writ petitioner, CWJC No. 4997/82 the petitioner had sough the same relief (s) and had challenged the acquisition proceedings substantially on the same grounds. It is thus apparent to me that this writ petition is not maintainable on merits. 6. Learned counsel for the petitioner submitted that on the earlier occasion this court gave the direction for making payment of the compensation to the petitioner within three months of its order but did not reject the challenge raised against the acquisition proceedings by any speaking order assigning any reasons for the same and hence the earlier order of this court cannot operate as res judicate and there should be no difficulty in entertaining this writ petition. I have noted this submission merely for the sake of the record but I am not prepared to accept it for a moment. In the earlier case when a Division Bench of this court gave the direction for making payment of the compensation without interfering with the land acquisition proceedings as prayed for by the petitioner, it would be deemed that in so far as the challenged to the proceedings was concerned, the case of the petitioner was rejected. The writ petition on that point having been earlier rejected by a Division Bench, the petitioner is no longer entitled to be heard on those questions again. In this regard one may refer to a decision of the Supreme Court in Sarguja Transport, AIR 1987 SC 88 . 7. At this stage, learned counsel for the petitioner submitted that the petitioner should atleast be given an opportunity to file a petition under section 18 of the Act for a reference to the court. Mr. Sinha resisted this submission also but having heard learned counsel for the parties, I find that to this limited extent the prayer made on behalf of the petitioner is quite justified. 8. Mr. Sinha resisted this submission also but having heard learned counsel for the parties, I find that to this limited extent the prayer made on behalf of the petitioner is quite justified. 8. It may be noted that on the earlier occasion this court had directed the respondents to make payment of the compensation to the petitioner immediately and within three months form 20.12.1982, that being the dated of the order. Notwithstanding the direction of this court the respondents on their own showing prepared the award on 9.7.1986 (copy at Annexure B to the counter affidavit), that is to say, after about 4 years from the date of the order of this court. A notice of the award was sent to the petitioner in terms of section 12(2) of the Act on 10.8.1987 and its service is shown by refusal as appearing from the endorsement by the process server. It is significant to note at this stage that earlier to this the petitioner had come to this court in this writ petition which was filed on 26.3.1987 and was admitted for hearing on 30.6.1987. Therefore, the alleged service of notice does not inspire much confidence and I am inclined to accept the petitioner’s statement that he came to learn about the award only after it was filed as an annexure with the ‘further counter affidavit on behalf of the State’ on 30.11.1995 when the matter was already running on the daily cause list for hearing. As the petitioner had challenged the entire proceedings and the matter was pending before this court he did not file an application under section 18 of the Act. 9. In the facts and circumstances of this case it would be just and proper to give an opportunity to the petitioner to file a petition for reference to court under section 18 of the Act and it must be held that proviso (b) to sub-section (2) of section 18 shall not apply in the facts and circumstances of this case. It is, accordingly, directed that in case the petitioner files an application before the Collector by April 30, 1996 under section 18 of the Act, the Collection shall not reject it on the ground of delay alone. 10. This application is dismissed subject to the aforesaid observations and directions.