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CASE NO.: Appeal (civil)  4170 of 1999

PETITIONER: Smt. Kanak & Anr.                                        

RESPONDENT: Vs. U.P. Avas Evam Vikas Parishad & Ors.             

DATE OF JUDGMENT: 01/09/2003

BENCH: CJI & S.B. Sinha.

JUDGMENT: J U D G M E N T  

with C.A. No. 4171 of 1999

S.B. SINHA, J :

       Whether and, if any, to what extent a Writ Petition will be  maintainable at the instance of the respondent-Parishad questioning an  award made on a reference under Section 18 of the Land Acquisition Act  is the primal question involved in these appeals, which arise of a  judgment and order dated 20.5.1998 passed by a Division Bench of the  Allahabad High Court in First Appeal No. 549 of 1994 and Civil Misc.  Writ Petition No. 11625 of 1996.  

BACKGROUND FACTS:

       The respondent herein is a statutory body created under the  provisions of Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965  (hereinafter referred to as ’the 1965 Adhiniyam’).

       Agra Nagar Mahapalika, a body constituted under Uttar Pradesh  Municipal Corporations Adhiniyam, 1959 framed a housing scheme entitled  "Ghatwasan Grah Isthan Evam Sarak Yojna".  It issued a notification on  23.4.1960 under Section 357 of U.P. Nagar Mahapalika Adhiniyam 1959  (hereinafter referred to as ’Mahapalika Adhiniyam’) which is equivalent  to Section 4(1) of the Land Acquisition Act.

       A declaration purported to be in terms of Section 363 of the  Mahapalika Adhiniyam which is in pari materia with Section 6 of the  Land Acquisition Act was issued on 26.9.1964.  The respondent -  Parishad was constituted in terms of the 1965 Adhiniyam.  After the  respondent-Parishad came into being, an agreement was executed between  the Mahapalika and the Parishad to transfer the execution of the said  scheme in terms of Section 47 of the 1965 Adhiniyam.  In furtherance of  the aforementioned notification under Section 357 and a declaration  under Section 363 of the Mahapalika Adhiniyam, the Special Land  Acquisition Officer (SLAO) took possession of the land sought to be  acquired on or about 18.6.1971.  An award in relation thereto upon  assessing the market value thereof was made by the SLAO on or about  24.11.1972 at the rate of Rs. 1.34 per square yard.  Allegedly, in his  award it was held that the acquired land was surrounded by various  colonies and localities and was of full building potentiality.   Within  the determined amount of Rs. 89,914.24, a sum of Rs. 33,573.48 was paid  to the owners of the land but payment in relation to the rest thereof,  namely, Rs. 56,340.76 was withheld having regard to the dispute of  title in relation thereto.  The owners of the land purported to be

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aggrieved by and dissatisfied with the quantum of compensation awarded  by the SLAO moved an application for reference before the Collector,  Agra on 1.1.1973.  But no reference was made for a period of eight  years.  Several registered deeds of sale, however, were executed by the  owners in favour of several persons assigning their compensation  rights.  The said assignees are presently represented by the  appellants.

       Allegedly, the Tribunal constituted for adjudicating on the  reference assessed the market value of the land at the rate of Rs. 12/-  per square yard by reason of two awards in relation to some other  lands; one of  which is said to have been accepted by the State.   According to the appellants, having regard to the fact that the land in  question was contiguous to the lands which were the subject matter of  reference, the Tribunal also made an award on 24.5.1993 assessing the  market value at the rate of Rs. 12/- per square yard keeping in view  the exemplar-Award.   Other statutory benefits in terms of the Land  Acquisition (Amendment) Act, 1984 were also granted.  The Tribunal  furthermore awarded damages in terms of Section 48A of the Act.

     The respondent-Parishad preferred an appeal thereagainst  before  the High Court purported to be in terms of Section 381 of the  Mahapalika Adhiniyam.  The said appeal, however, was barred by 100- days.  No pre-deposit was also made in terms of Sub-Section (3) of  Section 381 of the Mahapalika Adhiniyam nor any fitness certificate to  prefer an appeal in terms of Sub-Section (1) of Section 381 thereof was  granted.  Despite the said defect, however, by an order dated 30th  September, 1994 the High Court admitted the appeal without granting  special leave and passed the following order:

"Admit. Issue notice on the question of limitation,  call for record.  Put for hearing after receipt  of record as the land acquired in 1964.   Learned counsel for the claimants entered  appearance.  He may file counter affidavit to  the application u/s 5 of Limitation Act.   Learned Counsel for the appellant has served  the memo of appeal and the copy of award on  learned standing counsel for respondent nos. 3  and 4.  The notice is treated sufficient."

       During pendency of the said appeal, the Parishad also filed a  writ petition against the award dated 24.5.1993 inter alia alleging  therein that the condition of pre-deposit was onerous.           The appellants herein, however, moved an application for  dismissal of the appeal for alleged non-compliance of the mandatory  provisions of Section 381 of the Mahapalika Adhiniyam.  In the   Counter-Affidavit to the Writ Petition filed by them also, the  maintainability of the said appeal was came to be questioned.

       The First Appeal as also the writ petition were heard analogously  and by reason of a composite judgment dated 20.5.1998 the High Court ,  while dismissing  the First Appeal holding that the appeal under  Section 54 of the Land Acquisition Act was not maintainable as the  respondent did not comply with the conditions under Section 381 of the  Mahapalika Adhiniyam; held  that the writ petition was maintainable.   It was held:

"The appeal already filed by the Parishad is  not maintainable and so the Parishad cannot be  debarred from filing writ petition.

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The alternative remedy of Appeal under the  Nagar Mahapalika Adhiniyam is onerous. Since no formal notice has been served on the  Parishad, as per UPAEVP Vs. Gyan Devi, AIR 1995  SC 724, the writ petition under Article 226, is  entertainable. The writ petition has been filed to avoid any  controvery as to maintainability of its appeal  without deposit, which was not clear."

       In the Writ Petition, the High Court decided the case on merits  as a result whereof: (i)     The market value determined by the Tribunal was reduced; (ii)    The statutory and consequential benefits of 1967 Act and  1984 Act were denied; (iii)   The claim of solatium was disallowed; (iv)    Damages under Section 48A of the Land Acquisition Act were  rejected.

       Whereas the claimants had filed the appeal against the judgment  of the High Court from the writ petition, the Parishad had filed the  appeal against the dismissal of the first appeal.            SUBMISSIONS:

       Mr. Sunil Gupta, the learned senior counsel appearing on behalf  of the Appellants would submit that keeping in view the fact that  Section 381 of the Mahapalika Adhiniyam provided for a statutory  remedy, the writ petition was not maintainable.  Reliance in this  behalf has been placed on Sadhna Lodh Vs. National Insurance Company  Ltd. [(2003) 3 SCC 524] and Seth Chand Ratan Vs. Pandit Durga Prasad  [(2003) 5 SCC 399].   

       In any event as the first appeal was not withdrawn before filing  the writ petition, Mr. Gupta would urge, the respondent-Parishad could  not have maintained two parallel remedies.  Reliance in this connection  has been placed on Bombay Metropolitan Region Development Authority Vs.  Gokak Patel Volkart Ltd. [(1995) 1 SCC 642].

       In the alternative, (i) it was submitted that the High Court  erred in entertaining the writ petition on the ground of onerousness of  pre-deposit, as no case had been made out for overcoming the bar of  alternative remedy. (ii) the finding of the High Court to the effect  that no formal notice was served upon the respondent-Parishad was  contrary to the records of the case inasmuch as the Parishad had full  knowledge of the reference proceedings and as such it was not entitled  to take benefit of the decision of this Court in U.P. Avas Evam Vikas  Parishad Vs. Gyan Devi (Dead) By LRs. And Others [(1995) 2 SCC 326].

       The learned counsel would argue that as the Parishad’s appeal was  dismissed, the award and decree of the Tribunal has attained finality  and, thus, the same could not have been interfered with by allowing the  writ petition.  Reliance in this connection has been placed on Sheodan  Singh Vs. Daryao [(1966) 3 SCR 300], Seth Chand Ratan (supra), Shanker  Ram Chandra Vs. Krishnaji [(1969) 2 SCC 74] and Kanai Lal Sethi Vs.  Collector of Land Customs, Calcutta [(1956) 60 Calcutta Weekly Notes  1042].

       In the event it be held that the writ petition was not  maintainable, it was argued,  the Parishad having not preferred any  appeal against the writ judgment, the decision of the Tribunal shall  operate as  res judicata.  Reliance in this connection has been placed  on Badri Narian Singh Vs. Kamdeo Prasad Singh [(1962) 3 SCR 759] and

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Premier Tyres Vs. KSRTC [(1993) Supp. 2 SCC 146].

       Mr. M.N. Rao, the learned senior counsel appearing on behalf of  the respondent-Parishad, on the other hand, would submit that the law  was not settled at the time as regard locus of Parishad to file appeal  against the judgment of Reference Court and in that view of the matter  the writ petition was also filed.  The learned counsel would contend  that having regard to the provisions contained in Section 18 of the  Land Acquisition Act, the appellants cannot  be said to have derived  locus standi to take part in the proceedings before the Land  Acquisition Tribunal or for that matter filing the Appeal before this  Court.   

       According to the learned counsel, the deeds of assignment made in  favour of the appellants herein by the original claimants are illegal  having regard to the provisions contained in Section 23 of the Indian  Contract Act.  The learned counsel would contend that the provisions of  the Act were amended in the year 1984 so as to benefit the persons who  are owners of the land and not imposters like the appellants herein who  have purchased litigation with a view to unjustly enrich themselves.  BENEFIT UNDER THE 1984 AMENDING ACT:

       So far as the question as to whether the claimants were entitled  to solatium interest and additional amount is concerned, the same need  not detain us inasmuch as this Court in Savitri Cairae Vs. U.P. Avas  Evam Vikas Parishad and Another [(2003) 6 SCC 255] relying on or on the  basis of the decisions of this Court inter alia in U.P. Avas Evam  Parishad Vs. Jainul Islam [(1998) 2 SCC 467]  Nagpur Improvement Trust  Vs. Vithal Rao [(1973) 1 SCC 500]   and  Nagpur Improvement Trust Vs.  Vasantrao and others [(2002) 7 SCC 657] held that the provisions of the  Land Acquisition Act are to be read into the provisions of the  Adhiniyam.  The ratio of the said Judgment shall apply to this case  also and thus, the claimants shall be entitled to all the benefits  in  terms of the Land Acquisition (Amendment) Act, 1984.

MAINTAINABILITY OF THE APPEAL:

Section 47 of the 1965 Adhiniyam reads thus:

"Execution of other schemes by the Board:

(1)     Without prejudice to the power of the  State Government under sub-section (2),  the Board may, on such terms and  conditions as may be agreed upon between  the Board and any other local authority,  take over the execution or further  execution of any housing or improvement  scheme undertaken by such local  authority, and the Board shall thereafter  execute such schemes as if it had come  into force under sub-section (5) of  Section 32 of this Act.

       ...             ...             ...             ... (4) Whenever the execution or further execution  of a scheme is transferred to the Board  under sub-section (1) of sub-section (2),  any legal proceeding, including any  proceeding under the Land Acquisition  Act, 1894 (Act No. I of 1894), pending in  relation to that scheme by or against the  Nagar Mahapalika may be continued,  prosecuted or enforced by or against the  Board."

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       It is not in dispute that on or about 31.5.1968 merely the  execution of the Scheme alone was transferred.  Thus, the entire scheme  was not transferred in favour of the Parishad by the Nagar Mahapalika.   In that view of the matter the procedures contained in the Mahapalika  Adhiniyam for the purpose of acquisition of land indisputably were to  be followed.  Section 381 of the Mahapalika Adhiniyam reads thus:

"Appeals -1) An appeal to the High Court shall  lie from a decision of the Tribunal, if â\200\223  

(a)     the Tribunal grants a certificate that  the case is a fit one for appeal, or  

(b)     the High Court grants special leave to  appeal, provided that the High Court  shall not grant such special leave  unless the Tribunal has refused to  grant a certificate under clause (a).

(2)     An appeal under sub-section (1) shall lie  only on one or more of the following grounds,  namely -

(a)     the decision being contrary to law or  to some usage having the force of law;

(b)     the decision having failed to  determine some material issue of law  or usage having the force of law;

(c)     a substantial error or defect which  may have produced an error or defect  in the decision of the case upon  merits either on a point of fact or of  law."

       A bare perusal of the aforementioned provision would clearly go  to show that the appeal can be preferred if a certificate is granted in  that behalf by the Tribunal certifying the same to be a fit case for  appeal or a special leave is granted by the High Court on the ground of  refusal on the part of the Tribunal to grant certificate under Clause  (a).   

       The respondent herein was not a party before the Tribunal.  It,  thus, could not have applied for grant of a certificate for appeal to  the High Court nor did it do so in fact.  In such a situation the  question of the Tribunal’s granting a certificate or refusing to grant  the same so as to enable the Parishad to maintain an appeal before the  High Court in terms of Sub-Section (1) of Section 381 did not arise.   Having regard to the nature of the provisions contained in Section 381,  no appeal could have been preferred by it nor was it maintainable as  the conditions precedent therefor were not capable of being satisfied.   Once it is held that the appeal was not maintainable, the same was, for  all intent and purport, non-est in the eye of law.   

Thus, if the appeal preferred by the respondent-Parishad was not  maintainable, the question of complying with the conditions precedent  therefor, namely, depositing the awarded amount would also not arise.   Once it is held that the respondent could not have taken recourse to  the provisions of Section 381 of the Mahapalika Adhiniyam there cannot  be any doubt whatsoever that it was entitled to file writ petition.

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MAINTAINABILITY OF THE WRIT APPEAL:

       The writ petition for the reasons stated hereinbefore was  maintainable.  It is one thing to say that the High Court in exercise  of its jurisdiction under Article 226 of the Constitution of India may  not grant a relief  inter alia on the ground of existence of  alternative remedy but it is another thing to say that the writ  petition was not maintainable at all.   

       The legal position as regard intervention of a person for whose  benefit the land was to be acquired who was ultimately responsible for  payment of compensation was in a fluid state.  There were decisions and  decisions.  The law was laid down by the Court in Gyan Devi (supra).   

       The Tribunal, as stated hereinbefore, had made this award as far  back on 24.5.1993 and the respondent was advised to file appeal on  7.2.1994.  Presumably having regard to the objections as regard  maintainability of the appeal taken by the Registry of the High Court  as also the objection  raised by the appellants herein the respondent  was advised to file a writ petition.   

       Under the law based on judicial decisions as then existed  Parishad had no locus standi to file appeal before the High Court and  therefore writ petition at the instance of Parishad was only remedy  available.         Furthermore, this writ petition was entertained.  The appellants  herein filed a counter affidavit.  The matter was argued on merit and  in that view of the matter it is too late in the day to contend that  the respondent herein should have availed alternative remedy.   

In L. Hirday Narain Vs. Income-Tax Officer, Bareilly [AIR 1971 SC  33: (1970) 2 SCC 355] the law was laid down in the following terms:

"We are unable to hold that because a revision  application could have been moved for an order  correcting the order of the Income-tax Officer  under Section 35, but was not moved, the High  Court would be justified in dismissing as not  maintainable the petition, which was  entertained and was heard on the merits."

In an ordinary situation this Court could have agreed with the  contention of Mr. Gupta to the effect that two parallel remedies could  not have been allowed to continue simultaneously as has been held in  Bombay Metropolitan Region Development Authority, Bombay (supra) but  however, herein as noticed hereinbefore, the appeal was not  maintainable at the instance of the respondent and, thus, all  proceedings taken pursuant thereto were nullities.  For the views we  have taken, the writ petition must be held to be maintainable.

SERVICE OF NOTICE:

       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 to the  local authority for whom 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

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the Collector.  In the aforementioned situation, this Court in Gyan  Devi (supra) held:

"In other words the right conferred under  Section 50(2) of the L. A. Act carries with it  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."

       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 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.

       The respondent filed a writ petition because it was seriously  prejudiced.  This Court in Gyan Devi (supra) envisaged the following  legal situations:

"(i) No notice was given to the local authority  under sub-section (2) of Section 50 of the L.  A. 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."

       The court laid down the criteria where the local authority would  be necessary party or proper party.  It was observed:

"Since the amount of the 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 L. A. 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

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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."

       It was further held that presence of the  local authority is  necessary for a just  decision on the question involved 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.

       Where an appeal has not been filed by the State, it was held that  such an appeal would be maintainable with the leave of the Court.   However, in Gyan Devi (supra) this Court did not have any occasion to  consider a provision like one contained in Section 381 of the  Mahapalika Adhiniyam and, thus, the observations of the Court therein  would not be relevant for the purpose of the present case.  The High  Court, having regard to the facts and circumstances of this case cannot   be said to have committed any illegality in allowing the writ petition.

       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 examined on behalf of the  claimants and examine its own witnesses and bring on records such other  materials as it may seem fit and proper.    It goes without saying it  would also be open to the claimants to adduce evidence contra.

LEGALITY OF THE DEEDS OF ASSIGNMENT:

       The High Court has held that the deeds of assignments are valid.   The learned counsel appearing on behalf of the parties have addressed  us at great length on the said question.  However, the High Court did  not address itself on  the question as regards interpretation of  Section 18 of the Land Acquisition Act vis-Ã -vis the relevant  provisions of the Mahapalika Adhiniyam. We, in the facts and  circumstances of this case, feel that as the respondent is being given  an opportunity to raise all contentions, it should also be given an  opportunity to raise the aforementioned contention also before the  reference court.  For the views we have taken, it is not necessary for  us to refer to the other decisions relied upon by Mr. Gupta.

       We, however, in view of above, are not disposed to go into merit  of Civil Appeal No. 4171 of 1999 filed by the Parishad.

We, therefore, allow the Civil Appeal No. 4170 of 1999 to the  extent mentioned hereinbefore.  We, therefore, set aside the impugned  judgment of the High Court and remit the matter to the reference  tribunal with a direction to implead the respondent-Parishad as party  therein and allow the parties to adduce their respective evidence and  raise all contentions therein.   

Keeping in view the fact that the acquisition was made as far  back in the year 1960, we would request the Tribunal to dispose of the  matter as early as possible and preferably within the period of three  months from the date of receipt of the records.  No Costs.

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