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2022 DIGILAW 1222 (ALL)

Ram Chandra v. State of U. P.

2022-08-03

J.J.MUNIR, RAJESH BINDAL

body2022
ORDER : 1. This writ petition has been filed challenging the order dated 27.04.2022 passed by the Additional District Magistrate (Land Acquisition)/ (Housing), Kanpur Nagar, rejecting the petitioners' application for enhancement of compensation under Section 28-A of the Land Acquisition Act, 1894 (for short, ‘the Act of 1894’). A further writ in the nature of mandamus has been sought directing the respondents to pay compensation to the petitioners in terms of the award dated 25.01.2021 passed by the Additional District Judge, Kanpur Nagar in Case No.257/70 of 1993 and in view of the revised award dated 24.09.2009 passed by the Special Land Acquisition Officer (Housing), Kanpur Nagar. 2. The petitioners essentially claim to exercise their right under Section 28-A of the Act of 1894 on the ground that they have not challenged the Collector's award through a reference under Section 18 of the Act of 1894, but sought re-determination of the same under Section 28-A, based on the revised award dated 24.09.2009 relating to the same acquisition for some landholders. 3. As application under Section 28-A of the Act of 1894 preferred by the petitioners was not decided for a long time and they filed Writ -C No.33973 of 2012 for a direction to the Collector to decide the application. The application was directed to be decided vide order dated 15.09.2016 passed in the aforesaid writ petition. The order was not complied with, leading to initiation of proceedings for contempt. After contempt proceedings were initiated, the Additional District Magistrate (Land Acquisition) proceeded to reject the application vide order dated 20.03.2017 holding that the petitioners' claim for enhancement under Section 28-A of the Act 1894 was not tenable. 4. Aggrieved by that order, the petitioners filed Writ -C No. 17190 of 2017. This Court vide order dated 23.10.2019 observed that in the order dated 20.03.2017, there is reference to a report/ letter dated 17.01.2017, which was not supplied to the petitioners. The order of the Additional District Magistrate (Land Acquisition) was, therefore, set aside with a direction to supply the report dated 17.01.2017 to the petitioners within a month and decide afresh. The District Magistrate, Kanpur Nagar vide order dated 20/21.10.2020 again rejected the petitioners' claim under Section 28-A of the Act on the ground that he had no jurisdiction to review his earlier dated 20.03.2017. The District Magistrate, Kanpur Nagar vide order dated 20/21.10.2020 again rejected the petitioners' claim under Section 28-A of the Act on the ground that he had no jurisdiction to review his earlier dated 20.03.2017. This order dated 20/21.10.2020 was challenged by the petitioners through Writ - C No.26177 of 2020 before this Court. 5. The order of the District Magistrate dated 20/21.10.2020 was quashed by this Court vide judgment and order dated 21.01.2021 passed in Writ – C No. 26177 of 2020 and the matter was remitted back to the District Magistrate, requiring him to pass fresh orders after considering all objections raised by the petitioners. Upon determining the matter remanded by this Court, the District Magistrate, Kanpur Nagar held that the award dated 24.09.2009 passed by the Special Land Acquisition Officer (for short, ‘the SLAO’) was confined to those parties, who had litigated before this Court and the Supreme Court, and not the other land oustees. The writ petitioners were not petitioners in the writ petitions that were earlier filed before this Court challenging the concerned land acquisition notifications. It was also opined that the Act of 1894 makes provision for a reference to be sought by a landholder, if he is aggrieved by the compensation awarded by the Collector, under Section 18 of the Act of 1894. Those landholders, who do not exercise their right under Section 18, upon pronouncement of award by the Reference Court relating to the same notification at the instance of other landholders, can apply within three months under Section 28-A of the Act of 1894. It was held that the petitioners neither applied under Section 18 nor under Section 28A. The representation, that they preferred on 01.02.2021 in compliance with this Court’s order dated 21.01.2021, passed in Writ – C No. 26177 of 2020, was held to be not in conformity with the Act of 1894 and liable to be rejected. The petitioners were, however, left free to pursue their remedies seeking enhancement of the compensation under the Act of 1894, before the Court of competent jurisdiction. 6. It must be remarked at once that the order dated 24.03.2021 passed by the District Magistrate, Kanpur Nagar does not appear to have been challenged by the petitioners by moving this Court or some other competent forum. 6. It must be remarked at once that the order dated 24.03.2021 passed by the District Magistrate, Kanpur Nagar does not appear to have been challenged by the petitioners by moving this Court or some other competent forum. Instead, an application under Section 28-A of the Act of 1894 was made seeking enhancement of the compensation, on the basis of the revised award dated 24.09.2009 passed by the Land Acquisition Officer, and on the added ground of an award of the Reference Court in L.A.R. No. 257/70 of 1993, Nanku (deceased) through their LRs vs. State of U.P., decided on 25.01.2021 by the Additional District Judge-XII, Kanpur Nagar, that was claimed to be related to the same acquisition. This application of the petitioners under Section 28-A of the Act of 1894 was rejected by means of the impugned order dated 27.04.2022 passed by the Additional District Magistrate, Land Acquisition/ (Housing), Kanpur Nagar. 7. We have heard Ms. Pooja Agarwal, learned Counsel for the writ petitioners, Mr. Pramod Singh, learned Counsel for the Avas and Vikas Parishad and Mr. A.K. Ray, learned Additional Chief Standing Counsel on behalf of the State. 8. As appears from the record that there are two separate limbs, on the basis of which the petitioners have sought revision of compensation under Section 28-A of the Act of 1894. One is based on the revised award passed by the SLAO dated 24.09.2009 and the other on the award of the Reference Court dated 25.01.2021. So far as the exercise of right under Section 28-A of the Act of 1894 is concerned, the same cannot be exercised on the basis of a revised award being passed in relation to certain landholders by the Collector/ SLAO, on any ground. The right to apply under Section 28-A accrues on the basis of the judgment of the Reference Court in favour of a person, who himself has not preferred a reference under Section 18, but is covered by the same notification, where the Reference Court has enhanced. Therefore, no right can be claimed for enhancement of compensation under Section 28-A of the Act of 1894 on the basis of a revised award, may be relating to the same notification passed by the Collector or the SLAO. This part of the petitioners’ case is not tenable. 9. However, there is another aspect of the matter, which Ms. Therefore, no right can be claimed for enhancement of compensation under Section 28-A of the Act of 1894 on the basis of a revised award, may be relating to the same notification passed by the Collector or the SLAO. This part of the petitioners’ case is not tenable. 9. However, there is another aspect of the matter, which Ms. Pooja Agarwal, learned Counsel for the petitioners has been at pains to canvass before us. And, that is that the writ petitioners being covered by the same notification as the other landholders in whose case the revised award dated 24.09.2009 has been passed, there is no reason not to extend the same benefit to the petitioners. If that is not done, according to the learned Counsel, it would be discriminatory. This submission has been opposed by the learned Counsel for the respondents, who say that the revised award dated 24.09.2009 was passed by the SLAO in favour of certain landholders in very distinguishable circumstances. We have perused the record and considered the submission on this point carefully. 10. Upon a perusal of the record and the sequence of events, it transpires that in some cases covered by the notification issued under Section 32 of the Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 (for short, ‘the Act of 1965’), challenge was mounted by certain landholders before this Court successfully, with the acquisition being quashed vide order dated 03.10.1985, passed in Writ Petition No. 4776 of 1984. 11. Upon an Appeal preferred by the U.P. Avas and Vikas Parishad by Special Leave, being Civil Appeal No. 1807 of 1986, the Supreme Court vide judgment and order dated 13.02.2002 set aside this Court’s order and restored the acquisition. The unsuccessful landholders, who had litigated up to the Supreme Court, moved the Supreme Court vide Writ Petition (Civil) No. 452 of 2002. The said Writ Petition was dismissed on 02.09.2002, leaving the parties free to pursue their remedy under the law. Those landholders did not get relief and again petitioned this Court vide Writ Petition No. 44131 of 2004, Shrikumar Singh and others vs. State of U.P. and others, which this Court decided vide order dated 28.10.2004, directing that the landholders concerned are entitled to claim compensation in accordance with law. 12. Those landholders did not get relief and again petitioned this Court vide Writ Petition No. 44131 of 2004, Shrikumar Singh and others vs. State of U.P. and others, which this Court decided vide order dated 28.10.2004, directing that the landholders concerned are entitled to claim compensation in accordance with law. 12. It appears that some difficulty arose or it was perceived on account of this Court’s earlier judgment dated 03.10.1985, setting aside the acquisition to the extent that it related to the writ petitioners of Writ Petition No. 4776 of 1984. The difficulty that was felt was that the said notification being set aside, all subsequent proceedings for acquisition, including the award dated 23.09.1986 relating to the concerned landholders got nullified. The SLAO sought guidance from the Government, who vide a Government Order dated 10.10.2007 clarified matters and gave directions. Acting on those directions, the SLAO passed a fresh award dated 24.09.2009. 13. By this award, the SLAO granted a higher rate of compensation being Rs.45/-per square yard, based on the Court’s determination under Section 18 of the Act of 1894, in cases where the landholders affected by the same notification had applied for a reference. It appears that the present petitioners, though claimed to be affected by the same notification, had not challenged the acquisition and the respondents’ case is that the award dated 24.09.2009 is confined to those landholders alone, who had questioned the acquisition and litigated up to the Supreme Court. The petitioners had accepted the award dated 23.09.1986 that was originally passed and never questioned the acquisition. The respondents took a stand, which was accepted by the SLAO vide order 20.10.2010, that the award dated 24.09.2009 passed by the SLAO is confined to the writ petitioners of Writ Petition No. 4776 of 1984 and involves 138-19-0 bighas of land and nothing more. 14. The award dated 24.09.2009 was held not to apply to the petitioners vide order dated 20/21.10.2020 passed by the Collector, Kanpur Nagar. According to the Avas and Vikas Parishad, the petitioners cannot claim rights based on the SLAO’s revised award dated 24.09.2009. 15. For reasons that are pellucid in the recount of facts hereinabove, the award dated 24.09.2009 is applicable to a very distinguishable class of land oustees, that is to say, those who were petitioners in Writ Petition No. 4776 of 1984 and had litigated up to the Supreme Court. 15. For reasons that are pellucid in the recount of facts hereinabove, the award dated 24.09.2009 is applicable to a very distinguishable class of land oustees, that is to say, those who were petitioners in Writ Petition No. 4776 of 1984 and had litigated up to the Supreme Court. The petitioners, who are not parties to that litigation, cannot be said to be one discriminated against in the matter of passing of a revised award by the SLAO, granting enhanced rates, different from the original award. This part of the submission is also, therefore, not tenable. 16. Now, this takes us to the other limb of the petitioners’ submission that the Reference Court having passed an award dated 25.01.2021 in L.A.R. No. 257/70 of 1993, which relates to the same notification, entitles the petitioners to maintain their application under Section 28-A of the Act of 1894, that has been made on 17.04.2021. The said application is within limitation and ought to have been decided on merits. 17. The Additional District Magistrate, Land Acquisition has rejected the application by a cryptic observation, saying that the objections raised by the Avas and Vikas Parishad are tenable and the applications under Section 28A is contrary to law. Now, the objection, that has been taken by the Executive Engineer of the U.P. Avas and Vikas Parishad is one set out in a letter dated 02.03.2022, addressed to the Additional District Magistrate, Land Acquisition. In the said letter, it is said that the application under Section 28A relates to land affected by the Land Development-cum-Residential Scheme No.3, whereas the award dated 25.01.2021 passed by the Reference Court, on the basis of which jurisdiction is invoked under Section 28-A, relates to Land Development-cum-Residential Scheme No.1. 18. It was further said that the land affected by Land Development-cum-Residential Scheme No.3 was acquired through notifications under Sections 28 and 32 of the Act of 1965, dated 08.03.1980 and 28.08.1982, whereas Land Development-cum-Residential Scheme No.1, that relates to the petitioners’ land, comprises land acquired through notifications dated 17.02.1973 and 27.02.1980. In effect, therefore, the Executive Engineer, Avas Evam Vikas Parishad said that the award dated 25.01.2021 passed by the Reference Court related to a different acquisition made through notifications, completely different from ones through which the petitioners’ land was acquired. In effect, therefore, the Executive Engineer, Avas Evam Vikas Parishad said that the award dated 25.01.2021 passed by the Reference Court related to a different acquisition made through notifications, completely different from ones through which the petitioners’ land was acquired. This is a case which would require inquiry on the basis of evidence, at least comparing the plot numbers and the acquisition notifications. It is not something that could be disposed of by a cryptic remark accepting a letter saying all these things, addressed by the Executive Engineer, Avas Evam Vikas Parishad to the Additional District Magistrate, Land Acquisition. Whichever way the matter is looked at, it is after all a matter of evidence, where the land of the petitioners is allegedly one that has been acquired through the same notification i.e. the subject matter of the award dated 25.01.2021 passed in L.A.R. No. 257/70 of 1993. The order of the Additional District Magistrate, L.A., rejecting the said application is one that ultimately declines to redetermine the award on whatever ground. It is, therefore, as much an award as one that adjudicates the claim on merits and determines a figure of compensation payable, upon a revision done in accordance with the Reference Court’s judgment. 19. The petitioners’ remedy against the order impugned, in our opinion, therefore, would be to make an application to the Collector requiring the matter to be referred to the Court under sub-Section (3) of Section 28-A. Once that reference is made, it goes without saying that the Reference Court will examine the question on the basis of evidence to be adduced by parties, if indeed the petitioners are entitled to claim benefit of the award dated 25.01.2021 passed in L.A.R. No. 257/70 of 1993. The question of the relevant notification, through which the petitioners’ land has been acquired and the one that is subject matter of L.A.R. No. 257/70 of 1993 being one or not, would also be examined by the Court, as this issue is a lis which the Court ought to decide. 20. Upon an application being made by the petitioners to the Collector, Kanpur Nagar, reference shall be made under sub-Section (3) of Section 28-A of the Act of 1894. It goes without saying that the Court concerned shall entertain the reference and decide the same after hearing parties, in accordance with law. 21. The petition is disposed of, accordingly.