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2003 DIGILAW 169 (HP)

BHAKRA BEAS MANAGEMENT BOARD v. STATE OF H. P.

2003-07-01

R.L.KHURANA

body2003
JUDGMENT R.L. Khurana, J,—Certain lands belonging to respondent No. 4 in Tika Sanda, Mauza Dadhoa in District Kangra, was notified for acquisition for a public purpose under Section 4 of Land Acquisition Act, 1894 (for short: the Act). The requisite notification was published on 1.4.1963. The necessary declaration under Section 6 of the Act was made on 26.2.1966. The award under Section 11 of the Act, being award No. 4, was made on 21.5.1971 whereby compensation was awarded for various categories of land as under: (i) Nehri Awal and Gair Mumkin abadi Rs. 650 per kanal (ii) Barani Do-fasli Rs. 455 per kanal (iii) Barani Ek-fasli Rs. 390 per kanal (iv) Behand Banjar Rs. 312 per kanal (v) Kharetar, Banjar Kadim Gair Mumkin Kuhal and Gair Mumkin Belna Rs. 260 per kanal (vi) Gair Mumkin khad and Choe Rs. 130 per kanal 2. Respondent No. 4, who could not make an application under Section 18 of the Act, approached the Collector, Land Acquisition, under Section 28-A of the Act by way of six applications for re-determination of the amount of compensation on the basis of the award of the court. Such applications, it appears, were filed sometime in the year 1987-88. Respondent No. 5 is a transferee from respondent No. 4 to the extent of 47% share in the compensation. 3. The Collector, Land Acquisition, after the enquiry conducted by him vide award dated 5.1.1994 (Annexure P-l) on the basis of the award dated 28.9.1993 of the learned Additional District Judge (2), Kangra at Dharamsala, in Reference Case No. 854 of 1976 (Shri Devi Chand v. Collector, Land Acquisition), re-determined the amount of compensation payable in respect of the land acquired. The Collector, Land Acquisition vide award Annexure P-l also allowed interest, on the amount of compensation re-determined by him, at the rate of 6% per annum from 26.2.1966 (the date of publication of the declaration under Section 6 of the Act) to 21.6.1971 (the date of taking possession of the acquired land). Such interest was ordered to be paid in view of Section 4(3) of the Land Acquisition (Amendment and Validation) Act, 1967. Such interest was ordered to be paid in view of Section 4(3) of the Land Acquisition (Amendment and Validation) Act, 1967. Sub-section (3) of Section 4 of the said Amendment and Validation Act, 1967 reads : "Where acquisition of any particular land covered by a notification under sub-section (1) of Section 4 of the principal Act, published before the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967, is or has been made in pursuance of any declaration under Section 6 of the principal Act, whether made before or after such commencement, and such declaration is or has been made after the expiry of three years from the date of publication of such notification, there shall be paid simple interest calculated at the rate of 6% per annum on the market value of such land, as determined under Section 23 of the principal Act, from the date of expiry of the said period of three years to the date of tender of payment of compensation awarded by the Collector for the acquisition of such land. (Emphasis supplied) 4. The petitioner Board, for whose benefit the land was acquired, aggrieved by the award (Annexure P-l) of the Collector, has approached this Court by way of the present petition under Article 226/227 of the Constitution, for the quashing of the said award. 5. Though in the petition a challenge to the award Annexure P-l was laid on various grounds, during the course of hearing the learned Counsel for the petitioner confined his case only to that part of the award Annexure P-l whereby interest at the rate of 6% per annum from 26.2.1966 to 21.6.1971 was awarded under Section 4(3) of the Amendment and Validation Act, 1967. It was contended that in the present case since the declaration under Section 6 of the Act was made within three years of the notification under Section 4 of the Act, no interest was payable under Section 4(3) of the Amendment and Validation Act, 1967. 6. Annexure P-l is the copy of notification dated 1.4.1963 issued under Section 4 of the Act whereas Annexure P-4 is the copy of declaration dated 26.2.1966 issued under Section 6 of the Act. Such declaration was published in the official Gazette on 11.3.1966. 7. 6. Annexure P-l is the copy of notification dated 1.4.1963 issued under Section 4 of the Act whereas Annexure P-4 is the copy of declaration dated 26.2.1966 issued under Section 6 of the Act. Such declaration was published in the official Gazette on 11.3.1966. 7. The sole contesting respondent, that is, respondent No. 5 while supporting the award Annexure P-l has pleaded that interest has been rightly awarded by the Collector under the law and no interference in the impugned award is called for. 8. During the course of hearing an objection was raised by the learned Counsel for respondent No. 5 to the effect that it is not a fit case for the exercise of extra-ordinary powers under Article 226/227, Constitution of India, inasmuch as, though an alternative remedy was available to the petitioner under sub-section (3) of Section 28-A of the Act, it failed to avail of such alternative remedy. 9. On the other hand, it was contended by the learned Counsel for the petitioner that the remedy provided for under sub-section (3) of Section 28-A of the Act is not available to the petitioner since the petitioner cannot be said to be "a person aggrieved" within the meaning of Section 28-A(l) of the Act. Section 28-A of the Act reads : "28-A. Re-determination of the amount of compensation on the basis of the award of the Court.—(1) Where in an award of compensation in excess of the amount awarded by the Collector under Section 11, the persons interested in all the other land covered by the same notification under Section 4, sub-section (1) and who are also aggrieved by the award of the Collector may, notwithstanding that they had not made an application to the Collector under Section 18, by written application to the Collector within three months from the date of the award of the court, require that the amount of compensation payable to them may be re-determined on the basis of the amount of compensation awarded by the court: Provided that in computing the period of three months within which an application to the Collector shall be made under this sub-section, the day on which the award was pronounced and the time requisite for obtaining a copy of the award shall be excluded. (2) The Collector shall, or receipt of an application under sub-section (1), conduct an inquiry after giving notice to all the persons interested and giving them a reasonable opportunity of being heard and make an award determining the amount of compensation payable to the applicants. (3) Any person who has not accepted the award under sub-section (2) may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the court and the provisions of Sections 18 to 28 shall, so far as may be, apply to such reference as they apply to a reference under Section 18." 10. As stated above, the petitioner is the beneficiary since the land was acquired by the State for its benefit. 11. A bare reading of sub-section (1) of Section 28-A of the Act, quoted above, indicates that where in an award made under Section 23 of the Act, the Court allows to the applicant/claimant any amount of compensation in excess of the amount awarded by the Collector under Section 11 of the Act, the persons interested in all other land covered by the same notification under Section 4 of the Act and who are aggrieved by the award of the Collector, may, notwithstanding that they had not made an application to the Collector under Section 18 of the Act, make an application in writing to the Collector within three months from the date of the award of the Court requiring that the amount of compensation may be re-determined on the basis of the amount of compensation awarded by the Court. 12. Sub-section (2) of Section 28-A of the Act enjoins the Collector to issue notice to all the persons interested, viz., the applicant/claimant, the State and the beneficiary, if any, and to give them a reasonable opportunity of being heard in the inquiry to be conducted and to make an award re-determining the amount of compensation payable to the applicant/claimant under sub-section (1) of Section 28-A of the Act. 13. Sub-section (3) of Section 29-A of the Act confers a right to the person, who has not accepted the award made by the Collector under subsection (2) of Section 28-A, to make a written application to the Collector to refer the matter for determination to the Court under Section 18 of the Act. 13. Sub-section (3) of Section 29-A of the Act confers a right to the person, who has not accepted the award made by the Collector under subsection (2) of Section 28-A, to make a written application to the Collector to refer the matter for determination to the Court under Section 18 of the Act. The provisions of Sections 18 to 28, as far as may be, apply to the reference made under sub-section (3) of Section 28-A of the Act. 14. The question, thus, arising for determination is whether the petitioner, who is an beneficiary and for whose benefit the land was acquired, can be said to be a "person who has not accepted the award made under subsection (2) of Section 28-A of the Act" so as to give it a right to approach the Collector under sub-section (3) for making a reference to the Court. 15. The question is no more res Integra in view of the authoritative pronouncement by the Honble Supreme Court in Babua Ram and others v. State of U.P. and another, (1995) 2 SCC 689, wherein it was held as under: "No doubt Section 28-A(2) speaks of interested persons and Section 28-A(l) of persons aggrieved. As interpreted by this Court of the said expressions, the beneficiary is also an interested person to see that proper compensation is determined by the Court, gets right to hearing before award is made and to carry in appeal under Section 54 and has a right to appear before the Collector during award inquiry which right is only limited to participation in the inquiry and to adduce evidence or to file an appeal to determine just and proper compensation for the lands under acquisition. Subsection (2) of Section 28-A equally gives right of an opportunity of hearing to an interested person in the inquiry under Section 28-A(l). The State and the beneficiary are persons interested in determination of just and proper compensation. However, acceptance of the award under sub-section (3) appears to us to be, an acceptance by the claimant and not by the beneficiary or the State, as the Collector acts on their behalf as an agent. The State and the beneficiary are persons interested in determination of just and proper compensation. However, acceptance of the award under sub-section (3) appears to us to be, an acceptance by the claimant and not by the beneficiary or the State, as the Collector acts on their behalf as an agent. It is true that the award under Section 11 was made with prior approval of the State Government or its authorised officer and that limitation expressly was not laid in Section 28-A(2) but the legal effect does not get altered by virtue of the above distinction or omission in Section 28-A(2). The participation in the proceedings and right to an opportunity of hearing including the right to adduce evi dence by the beneficiary though in normal parlance carries with it the right to an appeal, in view of the scheme and the language of Section 11 under Section 28-A(2) does not clothe the beneficiary with a right to seek reference when he does not have such a right under Section 18. The award of the Collector under sub-section (2) of Section 28-A though as (sic at) a post Section 11 stage, nonetheless, the award under Section 28-A(2) is award and partakes the same character as an offer and not a decision. Therefore, if the applicant accepts the award, the award becomes complete and acceptance brings the proceedings under Section 28-A(l) to a terminus and the award binds the claimant and the Collector. On non-acceptance and seeking a reference under Section 28-A(3), the award made under Section 28-A(2) is at large subject to the decision by the Court by application of Sections 18 to 26 as is envisaged in Section 28-A(3) itself. Section 2-A of the local amendment made by the Haryana State Legislature adopting the Amendment made by the Legislature of Himachal Pradesh, manifests that despite the offer made by the Collector under Section 11, the State is entitled to seek reference under Section 18 but sub-section (2) expressly excludes the right of reference under Section 18 to the Union when the land was acquired on behalf of the Union of India. Thereby it is clear that the right to such reference under Section 28-A(3) by the beneficiary does not arise and stands excluded. Thereby it is clear that the right to such reference under Section 28-A(3) by the beneficiary does not arise and stands excluded. Though not apposite, but we can have a clue from Section 50 of the Act which prohibits reference at the behest of the beneficiary when the acquisition was made on behalf of a local authority or a company. It is true that there arises an anomalous situation when an award is made under Section 28-A(2) the Collector may award compensation in excess of the amount given under Section 26, while the claimant was provided with remedy under Section 28(3), the beneficiary or the State is left with no remedy under the Act. However, the Collector being an authority under the Act, the award of the Collector made under Section 28-A is not totally immune from jurisdiction of the High Court under Articles 226 and 227 of the Constitution, if required to be challenged by the State or the beneficiary, who have no other legal remedy in the matter." 16. In view of the above, the petitioner, being beneficiary cannot be said to be having a right under Section 28-A(3) of the Act to ask for making a reference to the Court. The only remedy available either to the State or to the beneficiary is to approach the High Court under Article 226/227 of the Constitution. 17. The preliminary objection raised on behalf of the contesting respondent No. 5 is, therefore, rejected. 18. It was next contended on behalf of the contesting respondent No. 5 that the present petition is barred by delay and laches. The award Annexure P-l was made by the Collector under Section 28-A(2) of the Act on S. 1.1994 while the present petition was preferred on 6.2.1997 after the lapse of more than three years. 19. 18. It was next contended on behalf of the contesting respondent No. 5 that the present petition is barred by delay and laches. The award Annexure P-l was made by the Collector under Section 28-A(2) of the Act on S. 1.1994 while the present petition was preferred on 6.2.1997 after the lapse of more than three years. 19. In Bhakra Beas Management Board and another v. State of H.P. and another, CWP No. 2 of 1997, decided on 27.3.1997, where the award was made by the Collector under Section 28-A(2) of the Act on 21.2.1994 and the petition under Article 226/227 of the Constitution, assailing such award was preferred on 4.1.1997 it was held by a Division Bench of this Court that in the case of total lack of jurisdiction in making the award by the Collector, the court should not stand on technicalities of delay and laches and it can exercise its jurisdiction under Article 226 of the Constitution. 20. In the present case as well, the question of jurisdiction of the Collector in awarding interest under the provisions of Amendment and Validation Act, 1967 is involved. Therefore, following the ratio laid down by a Division Bench of this Court in the above referred to case, the present writ petition cannot be thrown out and the petitioner cannot be non-suited merely on the ground of delay and laches. Besides, the delay in filing the writ petition stands fully explained in para 21 of the petition. 21. As stated above, the notification under Section 4 of the Act (Annexure P-3) was issued on 1.4.1963. The declaration under Section 6 of the Act (Annexure P-4) issued on 26.2.1966 was published on 11.3.1966, that is within three years of the date of notification issued under Section 4 of the Act. Therefore, the provisions of Section 4(3) of the Land Acquisition (Amendment and Validation) Act, 1967 would not be applicable and the contesting respondent would not be entitled to interest at the rate of 6% per annum for the period 26.2.1966 to 21.6.1971, amounting to Rs. 91,442.57 paise as awarded by the Collector vide award dated 5.1.1994 (Annexure P-l). The said award, therefore, is required to be modified and set aside to that extent. 22. As a result, the present writ petition is partly allowed. 91,442.57 paise as awarded by the Collector vide award dated 5.1.1994 (Annexure P-l). The said award, therefore, is required to be modified and set aside to that extent. 22. As a result, the present writ petition is partly allowed. The award dated 5.1.1994 (Annexure P-l) made by the Collector under Section 28-A(2) of the Act to the extent it awarded interest at the rate of 6% per annum from 26.2.1966 to 21.6.1971 under Section 4(3) of the Land Acquisition (Amendment and Validation) Act, 1967 is modified and set-aside. Parties to bear their own costs. Petition partly allowed.