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2005 DIGILAW 204 (HP)

TULSI RAM v. THE STATE OF H. P.

2005-06-22

V.M.JAIN

body2005
JUDGMENT V.M. Jain, J. (Oral).: This order shall dispose of above mentioned Civil Revision Petitions No.2, 3 and 5 of 2005, as common questions of law and facts are involved in these petitions. For the purpose of reference, facts from No. 2 of 2005 may be noticed. 2. The facts in brief are that the State Government had acquired land of the land owners and the Collector had given its award, So far as the landowners are concerned, they were satisfied with the award given by the Land acquisition Collector. However, it appears that the acquiring Department was not satisfied with the award given by the Collector. Resultantly the Executive Engineer, H.P. PWD, Kasauli Division filed reference petition before the Land Acquisition Collector and thereupon the Land Acquisition Collector referred the matter to the District Judge for deciding the said reference. In the said petition, the landowners, raised objections with regard to the maintainability of the reference at the behest of the Executive Engineer, H./P.P.W.D. On the said objections having been raised on behalf of the landowners an issue was framed as to whether the instant petition was maintainable. Thereafter, an application under Order 1 Rule 10 CPC was moved on behalf of the Executive Engineer, HP PPWD for transposing the State of Himachal Pradesh, which was impleaded as one of the respondents in the said reference petition, as petitioner No.2 besides the executive Engineer, H.P.P.W.D. who was petitioner No.1. It was also alleged that by virtue of the amendment by the State of Himachal Pradesh in Section 18 of the Land Acquisition Act the State could seek reference to the District Judge against the award passed by the Land Acquisition Collector and even the department concerned was competent to seek such reference to the District Judge against the award passed by the Land Acquisition Collector and even the Department concerned was competent to seek such a reference. It was also alleged in the application that the Secretary, H.P.P.W.D. had asked the Department to take appropriate action in the matter and the direction by the Secretary of the Department would mean the direction of the State and as such the present reference had in fact been preferred by the State of Himachal Pradesh itself. The said application was opposed by the landowners by filing objections to the said application. The said application was opposed by the landowners by filing objections to the said application. The learned Additional District Judge proceeded to decide the aforesaid application under Order 1 Rule 10 CPC and the aforesaid issue with regard tot he maintainability of the reference petition together and vide order dated 15.10.2004 the learned Additional District Judge held that the reference petition on behalf of the Executive Engineer, HPPWD, Kasauli Division was maintainable and the application under Order 1 Rule 10 CPC was also allowed and the State of Himachal Pradesh was transported as petitioner No.2 besides Executive Engineer, HP PWD. Aggrieved against the said order passed by the Additional District Judge, some of the land owners filed the present revision petition in this Court. 3. Notice was issued and the records were requisitioned. 4. 1 have heard the learned counsel for the parties and have gone through the records carefully. 5. The learned Additional District Judge while allowing the application under Order 1 Rule 10 CPC and transporting the State of H.P. as petitioner No.2 and holding that the reference petition on behalf of the Executive Engineer, HP PWD was maintainable, had placed reliance on the amendment to the Land Acquisition Act carried out by the State of Himachal Pradesh. After hearing the learned counsel and perusing the record, in my opinion, the order dated 15.10.2004 passed by the learned Additional District Judge is liable to be set aside and the reference petition filed by the Execution Engineer, HP PWD is liable to be dismissed on the short ground that alleged amendment to Section 18 of the Land Acquisition Act which was made the basis for coming to that conclusion by the learned Additional District Judge, infect stood repealed and after the said repeal and in- view of the Land Acquisition Act, as amended by the Central Act in the year 1984, there was no occasion for the Executive Engineer, HP PWD to have made to reference against the award give (sic-given) by the Land Acquisition Collector and there was no occasion to transpose State of H.P. as petitioner No.2. 6. By virtue of the Land Acquisition (H.P. Amendment) Act, 1964 (H.P. Act NO.IX of 1964) Sub Section 2-A and 2-B were added to Section 18 of the Land Acquisition Act, in the State of Himachal Pradesh. 6. By virtue of the Land Acquisition (H.P. Amendment) Act, 1964 (H.P. Act NO.IX of 1964) Sub Section 2-A and 2-B were added to Section 18 of the Land Acquisition Act, in the State of Himachal Pradesh. The same as reads as under: U(2-A) Without prejudice to the provisions of sub-section (1), the State Government may, where the acquisition of land is not for the purposes of the Union and it considers the amount of compensation allowed by the award under Section 11 to be excessive, require the Collector by written application that the matter be referred by him to the court for determination of the amount of compensation. Explanation- In case of land under part VII, the requisition under this subsection may, to made by the State Government at the request of the Company on its undertaking to pay all the cost consequent upon such requisition. (2-B) The requisition shall state the grounds on which objection to the award is taken and shall be made within six months of the date of award." 7. By virtue of The Land Acquisition (Himachal Pradesh Amendment) Act, 1979 ( Act No.4 of 1980) sub-section (3) was added to Section 18 of the Land Acquisition Act, which reads under: “(3) Any order made by the Collector on an application under this Section, shall be subject to revision by the High Court, as if the Collector were a court subordinate to the High Court within the meaning of section 115 of the Code of Civil Procedure, 1908." 8. Besides the addition of sub-section (3) to Section 18, by virtue of Section 9 of the 1979 Amendment Act, various amendments to the Land Acquisition Act were repealed including the Land Acquisition (Himachal Pradesh Amendment) Act, 1964. This would mean that even though sub-section (3) was added to Section 18 to the Land Acquisition Act, in the State of Himachal Pradesh, yet sub-sections 2-A and 2-B, which were added to Section 18 of the Land Acquisition Act by virtue of Land Acquisition (Himachal Pradesh Amendment) Act, 1964 were specifically repealed, by virtue of the Land Acquisition (Himachal Pradesh Amendment) Act, 1979. This would further show that after the coming into force of the Land Acquisition (Himachal Pradesh Amendment) Act, 1979, sub sections 2-A and 2-B, which were added by way of 1964 Amendment Act, stood repealed and were no longer on the Statute book. This would further show that after the coming into force of the Land Acquisition (Himachal Pradesh Amendment) Act, 1979, sub sections 2-A and 2-B, which were added by way of 1964 Amendment Act, stood repealed and were no longer on the Statute book. On the other hand sub-section (3) to Section 18 was added. 9. Vide Land Acquisition (Himachal Pradesh Amendment) Act, 1986 (Himachal Pradesh Act 17 of 1986) by virtue of section 5 of the said Act, the Land Acquisition (Himachal Pradesh Amendment) Act, 1979 was also repealed, whereas a proviso to sub-section (2) of Section 18 of the Land Acquisition Act was further added by virtue of 1986 Amendment Act, with regard to the Collector entertaining application under Section 18 after the expiry of the period of six weeks but within a period of six months after he was satisfied that the applicant was prevented by sufficient cause from making the application in time l0. From a perusal of the above it would be clear the power to seek reference under Section 18 of the Land Acquisition Act, which was given to the State of Himachal Pradesh by virtue of sub section 20A and 2-B of the Land acquisition Act, which were added by virtue of 1994 Amendment Act, stood withdrawn and repealed on the coming into force of the 1979 Amendment Act, vide which the 1964 Amendment Act was repealed. 11. In view of the above it would be clear that the reference sought by the Executive Engineer, HP PWD against the award given by the Land Acquisition Collector was without any authority of law and the learned Additional District Judge had erred in law in holding that such a reference was maintainable by placing reliance on sub-sections 2-A and 2-B of Section 18 of the Land Acquisition Act, without noticing that infect sub sections 2-A and 2-B stood repealed by virtue of the Land Acquisition (Himachal Pradesh Amendment) Act, 1979. 12. There is another aspect of the matter. Section 11 of the Land Acquisition Act, 1894, as amended by the Central Act, by virtue of Act 68 of 1986, provides that no Award shall be made by the Collector under sub-section (1) of Section 11 of the Land Acquisition Act, 1894, without the previous approval of the appropriate Government or of such officer as the appropriate Government may authorize in this behalf. There is a further proviso that it shall be competent for the appropriate Government to direct that Collector may make such Award without such approval in such class of cases as the appropriate Government may specify in this behalf. The fact that the Land Acquisition Collector, had to give the Award after seeking previous approval of the appropriate government would itself show that the Award given by the Land Acquisition Collector was not subject to challenge by the acquiring Department and/or the State Government, especially when the Land Acquisition Collector had given the Award after seeking previous approval of the appropriate Government. Under these circumstances, it would be taken that the Award given by the Land Acquisition Collector was an offer of the State Government and that being so the State Government and/or the acquiring department would not be competent to challenge the Award given by the Land Acquisition Collector. 13. In view of the above, in my opinion, it would be clear that the reference sought by the Executive Engineer, HP P.W.D. challenging the Award given by the Land Acquisition Collector was not maintainable and that being so there was no occasion for transposing the State of Himachal Pradesh as petitioner No.2 in the said reference made by the Land Acquisition Collector at the behest of the Executive Engineer, HP PWD. That being so, in my opinion, the order dated 15.10.2004 passed by the learned Additional District Judge, is liable to be set aside. 14. For the reasons recorded above, all the above mentioned three petitions are allowed the orders dated 15.10.2004 passed by the learned Additional District Judge, in all the three appeals are set aside the reference petitions filed by the Executive Engineer HP. P.W.D Kasuali Division Kasauli, challenging the award given by the Land Acquisition Collector, are hereby dismissed after holding that such petition at the behest of the State Himachal Pradesh and/or acquiring Department were not maintainable. -