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2001 DIGILAW 1185 (ALL)

KANPUR DEVELOPMENT AUTHORITY v. NANKU

2001-12-20

P.K.JAIN

body2001
P. K. JAIN, J. ( 1 ) IN all the three writ petitions common questions of law are involved hence the three writ petitions are being decided by common judgment. ( 2 ) PRAYER in writ petition No. 31875 of 1991 is to quash the award dated 23. 4. 1991 Tin land reference Case Nos. 12, 13, 14, 15, 17, 20, 31, 37, 38 and 51 of 1986 in Writ Petition No. 31876 of 1991, the prayer is to quash the award of Reference Court dated 30th March, 1991 in reference Case No. 3, 6, 7, 8, 9, 10, 15 and 16 of 1986. Prayer in Writ Petition No. 19130 of 1993 is to quash Award of the Reference Court dated 31. 3. 1993 in Reference Case Nos. 17, 18. 20, 43 and 50 of 1986, 25, 29 and 30 of 1987, 8, 10, 11, 12, 16, 17, 18 and 29 of 1988, 14 of 1989 and 2 of 1991 and it has further been prayed that the Tribunal in all the cases be directed to decide the matter afresh after giving opportunity to the petitioner. ( 3 ) IT appears that vide separate notifications under Sections 357 and 363 of the Nagar mahapalika Adhiniyam, vast tract of land belonging to various land holders were acquired. The acquisition was made much prior to 11th September 1973 when the petitioner was constituted under Section 59 (1-A) of the Urban Planning and Development Act and had undertaken the urban development work in the city of Kanpur. It is alleged that at the time of the petitioner having come into existence, the petitioner authority was not aware of the proceedings pending before the Tribunal and learnt of the same for the first time on receipt of Letter dated 21st october, 1991 from the Special Land Acquisition Officer. By the said letter the Special Land acquisition Officer requested the petitioner to file appeal in High Court under Section 381. ( 4 ) THE main grounds on which writ petitions have been filed and the award is sought to be quashed, are as follows: (1) The petitioner has not been served with any notice by the Tribunal. The award is bad in law. ( 4 ) THE main grounds on which writ petitions have been filed and the award is sought to be quashed, are as follows: (1) The petitioner has not been served with any notice by the Tribunal. The award is bad in law. After constitution of the Kanpur Development Authority, the petitioner inherited all the proceedings relating to acquisition of land and interest in land for improvement of the schemes under U. P. Mahapalika Adhiniyam by virtue of the provisions contained in Section 49 (1) of the u. P. Urban Planning and Development Act, 1973. (2) The requirement of the deposit of the enhanced amount of compensation is a pre-condition for entertainment of appeal, the same being onerous, the petitioners has no efficacious remedy except to file writ petition. The respondents contested the writ petitions mainly on the grounds that : (i) There is right of appeal under Section 381 of the Mahapalika Adhiniyam against judgment award passed by the Tribunal. Nagar Mahapalika, Kanpur and as such the writ petitions are not maintainable. Decision of Honble Supreme Court in AIR 1976 SC 2446 and 1996 (3) Supreme court Cases 300, have been relied upon (ii) The provision of Section 381 of the Nagar Palika Adhiniyam is not onerous as claimed by the petitioner and the petitioner itself filed various appeals in High Court prior to filing of the present writ petitions and also after filing of the present writ petitions. Some of the appeals referred to are First Appeal Nos. 830 of 1988, 843 of 1988. 844 of 1988, 845 of 1988, 846 of 1988, 847 of 1988, 848 of 1988, 849 of 1988, 850 of 1988, and so on and so forth. Certified copy of the order-sheets maintained by the Tribunal. Nagar Mahapalika, Kanpur which has been filed by the respondents, would show that the petitioner has been afforded full and complete opportunity of hearing and they have produced one witness namely, Sri Ram Verma and did not produce any documentary evidence and adjournment applications were filed by the Kanpur development Authority which were rejected by the Tribunal by speaking orders. That in some cases the petitioner itself paid compensation to the claimants. That in some cases the petitioner itself paid compensation to the claimants. The main grounds, on which the writ petitions are contested is that Section 381 of the Adhiniyam provides for statutory appeal against impugned award of the Tribunal and there being alternative remedy the writ petitions arc not maintainable Section 381 of the Mahapalika Adhiniyam reads as follow : "appeals.- (1) An appeal to the High Court shall lie from a decision of the Tribunal, if (a) the Chairman of the Tribunal grants a certificate that the case is a fit one for appeals, or (b) the High Court grant special leave to appeal, provided that the High Court shall not grant such special leave unless the Chairman of 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. (3) Notwithstanding anything contained in the foregoing provisions, 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. (4) Subject to the provisions of sub-section (1), the provisions of the Code of Civil Procedure, 1908, with respect to appeals from original decrees, shall, so far as may be, apply to appeals under this Act. (5) An appeal under sub-section (1) shall be deemed to be an appeal under the Code of Civil procedure, 1908, within the meaning of Article 156 of the First Schedule to the Indian limitation Act, 1908. (6) An order passed by the High Court on appeal under this Act shall be enforced, on application, by the Court of Small Causes of the City, as if it were a decree of that Court. " ( 5 ) THUS, there is specific provision under Section 381 of the Mahapalika Adhiniyam that the judgment and award of the Tribunal can be challenged in filing appeal. " ( 5 ) THUS, there is specific provision under Section 381 of the Mahapalika Adhiniyam that the judgment and award of the Tribunal can be challenged in filing appeal. Sri Murlidhar, learned senior Counsel appearing for the petitioners submitted that the condition of pre-deposit of the amount awarded by the Reference Court is too onerous and there being no other efficacious remedy, the petitioners have no alternate but to file writ petition. It may be pointed out here that the aforesaid provisions of law which provides for statutory appeal against award of the Tribunal has been subject matter of the consideration before the Division Bench of this Court in case of state of U. P, v. Mithilesh Kumar, reported in 1991 ALJ 516, which was followed by this Court in a decision reported in 1993 (2) AWC 709. ( 6 ) THE law is well settled that the High Court will not exercise discretional jurisdiction under article 226 of the Constitution where statute provides remedy of appeal before High Court under the statutes itself. The argument that the condition of pre-deposit of the amount awarded being onerous, filing of appeal would not be efficacious remedy, cannot be accepted. The Apex Court in Anant Mills Company Lid. , v. State of Gujarat, 1975 (2) Supreme Court Cases 175, held that: "the right of appeal is a creature of statute. Without a statutory provision creating such a right person aggrieved is not entitled to file appeal. We fail to understand as to why the legislator while granting the right of appeal cannot impose conditions for the exercise of such rights. In the absence of any special reasons there appears to be no legal or Constitutional impediment to the imposition of such conditions. . . . . . . . It is open to the legislator to impose an accompanying liability upon a party whom a legal right is conferred or to prescribed conditions for exercise of such right. . . . . . . " ( 7 ) THE petitioner is a public body, which has acquired vast tract of land belonging to various claimants. The petitioner has neither pleaded nor has proved any financial stringency as a ground for not filing the appeal. Therefore, there being alternative remedy the writ petitions cannot be entertained. There are allegations and counter allegations whether petitioner was afforded proper opportunity of contesting the proceedings. The petitioner has neither pleaded nor has proved any financial stringency as a ground for not filing the appeal. Therefore, there being alternative remedy the writ petitions cannot be entertained. There are allegations and counter allegations whether petitioner was afforded proper opportunity of contesting the proceedings. Admittedly, the petitioner has succeeded the Nagar mahapalika and had stepped in it shoes. It is. therefore, expected and presumed that the petitioner must have known about the pending litigation through its legal department. The petitioner had notice of pendency of the references before the Tribunal is born out very well from the contents of para 8 of writ petition No. 19130 of 1993 wherein the petitioner has admitted that it will be proper to detail various requests deemed by the Tribunal on 17th March, 1993, the Counsel for the petitioner. Sri Vishal Kumar applied that amended copy of the claim petitions which had not been supplied to the petitioner, be produced so that written statement may be amended or additional written statement may be filed in the light of the amended petitions. This was summarily rejected without any reason and 23. 7. 1993 was fixed for arguments Copy of this application 73-A is annexed as Annexure-2 to the writ petition. On 23. 3. 1993, the Counsel for the petitioner moved an application for amendment of the written statement, after finding out the claim petition amendments from the Court file. This application was also rejected summarily. Similar averments have been made in para 8 of the writ petition with regard to filing of some other applications. Thus, it cannot be successfully pleaded or argued by the petitioner that it had no notice of the reference proceedings pending before the tribunal. ( 8 ) IN the case of U. P. Avas Evam Vikas Parishad v. Gyan Devi, AIR 1995 SC 326. the Honble supreme Court held a follows : "in other words, the right conferred under Section 50 (2) of the Land Acquisition 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 arc pending of the date on which the matter of determination of the amount of compensation will be taken up. Service of such notice, being necessary for effectuating the right conferred on local authority under Section 50 (2) of the Land Acquisition act, can therefore, be regarded as an integral part of the said right and failure to give such a notice would result in denial of 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. " ( 9 ) I have already recorded a finding above that the petitioners had notice of the Reference proceedings pending before the Tribunal. Therefore, in view of the decision of Apex Court in gyan Devis case (supra) further notice was not necessary. The decision in Gyan Devis case was followed by a Division Bench of this Court in Civil Misc. Writ Petition No. 489 of 1992. Kanhaiya Kunj Sahkari Avas Samiti Ltd. v. State of U. P. The certified copy of the said judgment has been brought on record by Sri L. P. Singh, learned Counsel for the respondents. In my considered opinion, once it is held that the petitioners had notice of pendency of the acquisition proceedings before the Tribunal and they did actually participate in some of proceedings, they cannot be said to be prejudiced by non-service of the notice. ( 10 ) IT has come on record that in a quite number of cases appeals were filed by the petitioners themselves and in some cases even payment to the claimants was made in accordance with the award. This fact is not controverted by the learned Counsel for the petitioners. ( 11 ) IN view of the foregoing discussions. I hold that the petitions are not maintainable on the ground of alternative remedy and also on the ground that the condition of pre-deposit is not onerous, when in some cases the petitioners themselves complied with the order of the Tribunal by making payment to the claimants and in some cases they filed appeals after complying with provisions of Section 381 of the Mahapalika Adhiniyam. ( 12 ) THE petitions, therefore, deserve to be dismissed and arc hereby dismissed. ( 13 ) NO order as to costs.