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2016 DIGILAW 2918 (ALL)

Ram Dayal v. State of U. P.

2016-08-23

A.P.SAHI, VIJAY LAXMI

body2016
JUDGMENT Heard Sri A. N. Dubey, learned counsel for the petitioners. Learned Standing Counsel has accepted notices for the respondent Nos. 1 to 5. Ms. Samidha has put in appearance on behalf of the National Highway Authority of India (NHAI). 2. The petitioner prays for a Mandamus directing the respondent No. 3 not to release the compensation in respect of the acquired plot Nos.542, 534, 546, 550 and 543 of village Narainpur, Tehsil Sadar, Pargana Meerapur, district Sultanpur. 3. The contention is that the land was neither acquired nor it vested with the Tubewell Division of the Irrigation Department of the State and to the contrary, the predecessors in interest of the petitioners had filed a Civil Suit No.439 of 1984 in respect of the same land for which a decree was awarded in their favour on 23rd February, 1987. 4. Further, the writ petition narrates that the suit for injunction as decreed was subjected to an appeal before the learned Additional District Judge that was also dismissed on 21.7.2007. The said judgments and decree were further taken up by the State in Second Appeal No. 23 of 2008 where an interim order was passed on 6.8.2008. It is for this reason that we had summoned the records of the Second Appeal. The interim order dated 6.8.2008 passed in the Second Appeal is extracted hereunder: - "Rejoinder affidavit has been filed on behalf of the appellants, although the counter affidavit has been filed by the respondents on the application moved under Section 5 of Limitation Act and the application under Section 5 of Limitation Act has already been allowed on 7.5.2008 but the learned Standing Counsel tried to justify the filing of this rejoinder affidavit on the ground that the respondents besides dealing with the ground for condonation of delay also commented on the merits of the case and, that is why, it necessitated to file the rejoinder affidavit. I have perused the order dated 7th May, 2008 and it is correct that the application for condonation of delay was allowed but having into account the arguments of the learned Standing Counsel permitted to file rejoinder affidavit. Let it be kept on record. Heard learned Standing Counsel on admission of the appeal. None is present on behalf of the opposite parties. I have also perused the substantial question of law formulated in the memo of appeal. Let it be kept on record. Heard learned Standing Counsel on admission of the appeal. None is present on behalf of the opposite parties. I have also perused the substantial question of law formulated in the memo of appeal. In my opinion, this appeal is admitted on the following substantial question of law: "Whether Regular Suit No. 439 of 1984 was not maintainable in the Civil Court on the ground that the property in dispute had already been acquired under the provisions of Land Acquisition Act in the year 1972 and thereafter, if so, the Civil Court has no jurisdiction to go into the question of validity of the Notification issued under Section 4(1) and declaration under Section 6 of the Land Acquisition Act?" Hence, list the appeal for final hearing in the month of October, 2008. Till further orders, the execution and implementation of the judgment and order dated 23rd March, 1987, passed by the trial court and 21st July, 2007 passed by the appellate court shall remain stayed." 5. A perusal of the said interim order indicates that the substantial question of law raised in the Second Appeal is as to whether Civil Court had jurisdiction to award such a decree or not. 6. It is, thus, clear that the appellants who are respondents in the said Second Appeal, are yet to confirm their current title over the property on the strength of the decree which is subject to the outcome of the final orders to be passed in the appeal. 7. On these peculiar facts, the petitioners have come up praying that the respondent Tubewell Division should not be released the compensation amount as it would prejudice the rights of the petitioners. 8. Having considered the submissions raised, the outcome of the Second Appeal may have a bearing on the issue but compensation for the time being is being awarded by the authorities to a Government Department. In our considered opinion, what the petitioners, therefore, want is that so long as the Second Appeal is not decided, the Tubewell Division should not be awarded the compensation also keeping in view the fact that the petitioners allege to have not been awarded any compensation, when the land was acquired by the Tubewell Division prior to the filing of the suit. 9. 9. The very issue of the title of the petitioners is directly involved in the Second Appeal and in such a situation, they can obtain any order against the State and the Tubewell Division therein, if the compensation is in relation to the same land which is subject matter of deposition before the National Highway Authority of India. That would be matter between the petitioner and the State for which the petitioner can file an appropriate application in the pending Second Appeal itself. 10. The writ petition, therefore, cannot be entertained by us without prejudice to the rights of the petitioner by moving an application before the appropriate forum for appropriate relief. 11. Disposed off with the said observations.