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2004 DIGILAW 44 (UTT)

U. P. Avas Evam Vikas Parishad v. Mohd. Umar

2004-04-26

RAJESH TANDON

body2004
JUDGMENT By this appeal, the appellant has prayed fur setting aside of the order dated 8th May, 1992 passed by the Special Judge, Nainital in Land Acquisition Reference No. 53 of 1985. 2. Brief facts giving rise to the present appeal are that the State of U.P. acquired a land in Village Amritpur, Pargana Kashipur, District Nainital for U.P. Avas Evam Vikas Parishad for construction of housing scheme namely "Bhumi Vikas Evam Grah Sthan Yojana", Jaspur District Nainital. On 30th May, 1981, a Notification under Section 28 of the U.P. Awas Evam Vikas Parishad Act, which is equivalent to Section 4 of the Land Acquisition Act was made and thereafter, the Notification under Section 32 of the U.P. Awas Evam Vikas Parishad Act, which is equivalent to Section 6 of the Land Acquisition Act was made on 10th July, 1982 in respect of the land measuring 26.24 acres and the possession of the said land was taken on 29th September, 1984. 3. On 29th September, 1984, the Land Acquisition Officer passed an award granting a compensation at the rate of Rs. 11,194.03/- per acre with 15% solatium. The claimants, having not been satisfied by the award passed by the Land Acquisition Officer, made a reference and the Reference Court allowed the reference and enhanced the compensation from Rs. 11,194.03/- per acre to Rs. 35,000/- per acre. 4. The present appeal has been preferred by the Avas Evam Vikas Parishad challenging the order of Reference on the sole ground that in the reference proceedings, the appellant was not made a party and hence, the entire proceedings are wholly illegal. 5. Learned counsel for the appellant has argued that in case, he succeeds on this sole ground, the other point with regard to the quantum of compensation may not be necessary as the same shall be subject to further leading of evidence before the Reference Court. 6. A perusal of the record of the Land Acquisition Officer as well as the proceedings before the Reference Court shows that the State of U.P., through Collector, Nainital, alone, has been impleaded as a party in the Reference Court and the U.P. Avas Evam Vikas Parishad has not been impleaded as party. 7. Both the parties have agreed that in the Reference Court, the U.P. Avas Evam Vikas Parishad was not made a party. 8. In the case of U.P. Avas Evam Vikas Parishad Vs. 7. Both the parties have agreed that in the Reference Court, the U.P. Avas Evam Vikas Parishad was not made a party. 8. In the case of U.P. Avas Evam Vikas Parishad Vs. Gyan Devi reported in (1995) 2 SCC 326, it has been held that the local authority would be a person aggrieved who can invoke the jurisdiction of the High Court under Article 226 of the Constitution to assail the award. 9. Similar view has been taken in the case of Kanak & another Vs. U.P. Avas Evam Vikas Parishad reported in (2003) 7 Supreme Court Cases 693, where similar controversy came up for decision before the Apex Court, where the Apex Court, relying upon the judgment of U.P. Avas Evam Vikas Parishad Vs. Gyan Devi reported in (1995) 2 SCC 326, has held as under: "32. It is not in doubt or dispute that no formal notice was served upon the respondent. A notice to a person, for whose benefit the land is acquired or who is responsible for payment of compensation amount, was mooted before the courts of law on the construction of Section 50 of the Land Acquisition Act. It was held that sub-section (2) of Section 50 must be construed as conferring a right of notice on the local authority at the stage of determination of the amount of compensation before the Collector as well as the Reference Court. It is not in dispute that the respondent was not represented even before the Collector. In the aforementioned situation, this Court in Gyan Dev; held: 'In other words the right conferred under Section 50(2) of the LA Act carries with the right to be given adequate notice by the Collector as well as the Reference Court before whom the acquisition proceedings are pending of the date on which the matter of determination of the amount of compensation will be taken up. Service of such a notice, being necessary for effectuating the right conferred on the local authority under Section 50(2) of the L A Act, can, therefore, be regarded as an integral part of the said right and the failure to give such a notice would result in denial of the 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. 33. It is not correct to contend that by reason of non-service of notice the respondent was not prejudiced. The exception carried out by this Court in the matter of service of notice to the local authority is not only confined to its knowledge about the pendency of the acquisition proceedings before the Collector or the Reference Court but also any prejudice on account thereof. The said two conditions are to be read conjunctively and not disjunctively. 34. The respondent filed a writ petition because it was seriously prejudiced. This Court in Gyan Devi envisaged the following legal situations: (i) No notice was given to the local authority under sub-section (2) of Section 50 of the LA Act and as a result the local authority could not appear before the Collector to adduce evidence; (ii) Notice was served on the local authority and in response to said notice the local authority appeared before the Collector; and (iii) Notice was served on the local authority but in spite of service of such notice the local authority failed to appear and adduce evidence before the Collector. 35. The Court laid down the criteria where the local authority would be a necessary party or proper party. It was observed: 'Since the amount of compensation is to be paid by the local authority and it has an interest in the determination of the said amount, which has been given recognition in Section 50(2) of the LA Act, the local authority would be a person aggrieved who can invoke the jurisdiction of the High Court under Article 226 of the Constitution to assail the award in spite of the proviso precluding the local authority from seeking a reference. Such a challenge will, however, be limited to the grounds on which judicial review is permissible under Article 226 of the Constitution. Such a challenge will, however, be limited to the grounds on which judicial review is permissible under Article 226 of the Constitution. In a case where the local authority has failed to appear in spite of service of notice the local authority can have no cause for grievance. Even in such a case it may be permissible for the local authority to invoke the jurisdiction of the High Court under Article 226 of the Constitution to assail the award if it is vitiated by mala fides or is perverse. 36. It was further held that presence of the local authority is necessary for a just decision on the question involed in the proceedings before the Reference Court as that would enable it to adduce evidence therein and as such it was entitled to be impleaded as a party. 38. However, having said so, in our opinion, the High Court should have remitted the matter back to the Reference Court with a direction that the respondent Parishad may be impleaded as a party so as to enable it to cross-examine the witnesses and bring on record such other materials as it may deem fit and proper. It goes without saying, it would also be open to the claimants to adduce evidence to the contra." 10. In view of the law laid down in the case cited above, the appeal is remitted back to the Reference Court with a direction that the appellant, U.P. Avas Evam Vikas Parishad may be impleaded as a party. 11. Since, the matter is a old one as the acquisition was made in the year 1985 and the reference, itself, was decided on 8th May, 1992, therefore, the Reference Court is directed to decide the reference afresh within a period of three months from the date of receipt of certified copy of this order after impleading U.P. Avas Evam Vikas Parishad as a party. 12. Since, the sole question with regard to the impleadment of U.P. Avas Evam Vikas Parishad has been decided in favour of the appellant, therefore, I need not decide the question with regard to the adequacy or indequacy of amount of compensation, it will be a subject matter to be decided by the Reference Court after taking into account the entire evidence including the evidence led by the U.P. Avas Evam Vikas Parishad. 13. The appeal succeeds and is allowed. 13. The appeal succeeds and is allowed. No order as to costs.