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2001 DIGILAW 859 (PAT)

Jawahar Lal Sah v. State Of Bihar

2001-09-11

S.K.KATRIAR

body2001
Judgment 1. Heard learned counsel for the parties. 2. This writ petition is directed against the order dt. 26.6.2001 (Annexure 4), passed by the Land Acquisition Officer, Sasaram, Rohtas, in Case No. 10M of 2000-2001 (Moti Lal Sah and Ors. vs. Raj Kumari Devi & Ors.) whereby he has held that respondent no. 4 is entitled to the entire proceeds of the compensation amount for the lands acquired to the extent covered by present writ petition. Let it be clarified at the outset that there is an error, perhaps a typographical error, in the impugned order that the compensation amount is to be paid to respondent no. 4 who is husband of respondent no. 5. The name of respondent no. 5 (Raj Kumari Devi) ought to have been there, instead of respondent no. 4 (Hira Lai Sah), 3. The land in question is Plot No. 4, appertaining to Khata no. 54, covering total area of 4.84 acres situate at village Sariaon, Thana No. 442, PS Karahgar, district Rohtas. The same was alienated by one Gauri Shankar Pandey and Ramanuj Pandey in favour of Smt.Yashoda Devi by nine different deeds of absolute sale in 1983 and 1984. These lands were acquired sometime ago for laying the broad gauge Ara-Sasaram railway. During the pendency of the land acquisition proceeding, Smt. Yashoda Devi died and has been substituted by her three sons who are petitioners no. 1 and 2, and respondent no. 4 herein. After conclusion of the land acquisition proceeding, the Land Acquisition Officer in purported exercise of power under Section 12(2) of the Land Acquisition Act, 1894, issued the requisite order dated 21.8.2000 (Annexure 4), calling upon the three brothers, who are the heirs of Smt.Yashoda Devi, namely, two petitioners and respondent no. 4, to receive the aforesaid compensation amount in three equal shares. The same was replaced by the Land Acquisition Officer by his order dt. 26.6,2001 (Annexure 4), whereby he has calied upon respondent no. 4 to receive the entire compensation amount alone. As stated above, he really intended to state the name of respondent no. 5, and not respondent no. 4 in view of the case of the parties. The lands in question were gifted by Smt. Yashoda Devi in favour of respondent no. 5, her daughter-in-law by registering deed of gift dt. 27.10.1980, photocopy of which is marked Annexure A to the counter affidavit of respondent nos. 5, and not respondent no. 4 in view of the case of the parties. The lands in question were gifted by Smt. Yashoda Devi in favour of respondent no. 5, her daughter-in-law by registering deed of gift dt. 27.10.1980, photocopy of which is marked Annexure A to the counter affidavit of respondent nos. 4 and 5. Thereafter, the petitioners herein instituted Title Suit No. 152 of 1985 (Jawahar Lal Sah vs. Hira Lal Sah), for setting aside the deed of gift (Annexure A), and for partition of the family properties in three equal shares. The suit has been decreed by judgment and decree dt. 27.3.99, passed by learned Subordinate Judge IX, Sasaram, whereby the said deed of gift dt. 27.10.80 (Annexure A) has been set aside and it has been held that the three brothers, namely, the petitioners and respondent no. 4 herein shall be entitled to partition of the suit properties in thrtee equal shares. The final decree has not far been prepared and the aforesaid judgment and decree has been challenged at the instance of respondent nos. 4 and 5 anq their sons in this Court in First Appeal No. 202 of 1999 (Hira Lal Sah vs. Jawahar Lal Sah) which is pending adjudication. 4. While assailing the validity of the impugned order, learned counsel for the petitioners submits that the aforesaid order dt. 21.8.2000 (Annexure 4), passed by the Land Acquisition Officer, calling upon the three brothers to receive the compensation amount in three equal shares was the correct order for various reasons. The same is fully consistent with the aforesaid judgment of the trial court. He further submits that the Land Acquisition Officer exceeded his powers under Section 12(2) of the Act by passing the aforesaid order dt. 21.8.2000. He also submits that the aforesaid order dt. 26.6.2001 is in the nature of an order of review which is in the scheme of the Act is impermissible, inasmuch as no power of review has been conferred on the Land Acquisition Officer. He relies on the judgment of the Supreme Court reported in AIR 1966 SC 237 , (Dr. G. H. Grant V/s. State of Bihar). 26.6.2001 is in the nature of an order of review which is in the scheme of the Act is impermissible, inasmuch as no power of review has been conferred on the Land Acquisition Officer. He relies on the judgment of the Supreme Court reported in AIR 1966 SC 237 , (Dr. G. H. Grant V/s. State of Bihar). He lastly submits that the situation as it legally stands at present, judgment of the trial court is in their favour, and the deed of gift, which is the sole basis of the claim of respondent nos.4 and 5, has been set aside and gone out of existence. 5. Learned counsel for respondent nos. 4 and 5 submits in opposition that the claim of respondent no. 5 to the lands in question and the amount of compensation is based on a registered deed of gift, and finding of the trial court is a wholly irrelevant consideration, inasmuch as the validity of the same is at large in the First Appeal. He next submits that the deed of gift is dated 27.10.1980, whereafter the mutation of the properties took place in favour of respondent no. 5 to the full notice and knowledge of the petitioners and was arried out without objection from them. He next submits that the aforesaid order dt. 21.8.2000 was not in exercise of the powers under Section 12(2) of the Act. The order dt. 26.6.2001 is the first order under the said provisions of law and, there fore, the contention advanced on behalf of the petitioners that it amounts to review of the earlier order is misplaced. He also invites my attention to the Bihar Amendment to Section 12(2) of the Act. He lastly submits that equities of the parties can be adjusted in the First Appeal and the land in question can be apportioned to the share of respondent nos. 4 and 5. After all, a much bigger area is the subject matter of the suit and the appeal. 6. Having considered the rival submissions of the parties, I am of the view that this writ petition is fit to be allowed. Learned counsel for the petitioners is right in his submission that the order dt. 21.8.2000 was passed under the provisions of Section 12(2) of the Act. 6. Having considered the rival submissions of the parties, I am of the view that this writ petition is fit to be allowed. Learned counsel for the petitioners is right in his submission that the order dt. 21.8.2000 was passed under the provisions of Section 12(2) of the Act. There is no provision in the Act conferring any power of review directly or by necessary intendment on the Land Acquisition Officer for reviewing his order. In any case, the limited scope and the constraints of review jurisdiction is well known. It appears from a plain reading of the impugned order dt. 26.6.2001 that he has dealt with the issue like a court of appeal. Law is well dettled that an appeal or revision lies before a superior authority, and a review lies before the same authority. Hence the well known constraints on the power of review. In that view of the matter, the order dt. 26.6.2001 is bad in law, and is fit to be set aside. 7. Learned counsel for the petitioner is further right in his submission that the situation as it stands at present as to the title of the lands in question, is covered by the findings recorded in the aforesaid judgment of the trial court. Issue no. 9 framed by the trial court is set out hereinbelow for the facility of quick reference : "Whether the deeds of gift dt. 23.3.83, 5.4.84, 18.5.85 and 27.10.80 are legal, genuine, valid, operative acted upon or illegal, void, inoperative, and if it is found invalid then to what extent the plaintiffs are entitled to get share?" Let it be clarified that the aforesaid issue no. 9 dealt with four deeds of gift but the deed of gift dt. 27.10.80 is alone relevant in the present context. The trial court has dealt with this issue at length in his judgment and has in substance set aside the aforesaid deed of gift dt. 27.10.80. It is undoubtedly correct to state that the issues in the suit are at large in the First Appeal, being the last court of facts. Yet, I am of the view that the better manner of exercise of discretion would be to lean in favour of the petitioners who should share in equal measures the proceeds of the compensation which shall of course be subject to the judgment of the First Appeal. Yet, I am of the view that the better manner of exercise of discretion would be to lean in favour of the petitioners who should share in equal measures the proceeds of the compensation which shall of course be subject to the judgment of the First Appeal. I do not agree with the contention advanced on behalf of the learned counsel for respondent nos. 4 and 5 that the equities of the parties can be adjusted in the First Appeal and the Final Decree by allocating the entire land in question in favour of respondent nos. 4 and 5. I do not consider at the present stage to exercise that discretion in favour of respondent nos. 4 and 5, inasmuch the impugned judgment is in favour of the petitioners and the deed of gift being the sole basis of the case of respondent nos. 4 and 5 has gone out of existence. 8 In the result, the writ petition is allowed. The impugned order dt. 26.6.2001, passed by the Land Acquisition Officer, Sasaram, in Case No. 10(M) of 2000/2001, is hereby set aside. He is directed to issue three cheques in the name of the three brothers, namely, petitioner no. 1 (Jawahar Lal Sah @ Jawahar Lal), petitioner no. 2 (Moti Lal Sah), and respondent no. 4 (Hira Lai Sah) in three equal measures of the entire amount of compensation inclusive of the solatium and interest.