Court No. - 40
Case :- WRIT - C No. - 21240 of 2020 Petitioner :- Harish Chandra Alias Harish Chandra Sharma And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Kuldeep Kumar Counsel for Respondent :- C.S.C.,Kaushalendra Nath Singh
Hon'ble Munishwar Nath Bhandari,J. Hon'ble Rohit Ranjan Agarwal,J.
Heard Sri Kuldeep Kumar, learned counsel for the petitioners, learned Standing Counsel and Sri Shivam Yadav, larned counsel appearing for respondent no.2.
By this writ petition, a challenge has been made to recovery notice dated 20.08.2020.
It is a case where after an award under Section 11-A of the Land Acquisition Act, 1894 (in short the “Act of 1894”), the petitioners' predecessor sought reference under Section 18 of the Act of 1894. On the reference, the Civil Court passed an order but being dissatisfied with that a Defective First Appeal bearing No. 764 of 1993 (Smt. Vidyawati vs. State and others) was filed. The first appeal was dismissed due to deficiency in submission of court fee.
Aggrieved by the order on first appeal, a restoration application was preferred but was dismissed as not pressed. The petitioners' mother then died in the year 2009 and thereupon petitioners preferred a Defective First Appeal bearing No. 436 of 2010 against the judgment of Civil Court dated 28.05.1993. The said appeal was also dismissed on 07.02.2014.
In view of the above, the judicial order was passed by the Civil Court on reference under Section 18 of the Act of 1894 attained finality. The officers of the Okhla Industrial Development Authority yet allowed payment of a sum of Rs. 3,48,96,063/- to the petitioners going against the judicial order. It is said to be based on the compromise pursuant to the Government Order, though no Government Order provides any compromise after an order passed by the Civil Court on reference under Section 18 of the Act of 1894 and dismissal of the first appeal not only in the hands of petitioners' mother but petitioners' appeal, though we have doubt about the maintainability of the petition in the hands of the petitioners.
When the respondent-authority could know about illegality in payment of huge amount, running in crores, not only in this case but in number of such cases, a recovery notice was issued and a direction to initiate disciplinary action and even to lodge FIR against the officers who paid huge amount running in crores to the land holders going contrary to the provisions of the Act of 1894. This Court has dismissed two similar writ petitions. The first was Writ C No. 15470 of 2020 (Om Dev Singh and others vs. State of U.P. and others) by judgment dated 15.10.2020 and other writ petition was Writ C No. 17491 of 2020 (Ved Prakash and others vs. State of U.P. and another) by the judgment dated 15.12.2020. It is after considering all the issues relevant to the case.
If we go by the provision of the Act of 1894, the only remedy available to the land holder to seek reference under Section 18 of the Act of 1894 or to invoke Section 28A of the Act of 1894, if he is aggrieved by the award in an appropriate case. No other remedy has been provided and therefore, in identical circumstances, this Court dismissed the writ petition dealing with the issue, as raised herein also. The relevant paras of the judgment in the case of Om Dev Singh (supra) are quoted herein for ready reference:
“Learned counsel submits that the land belonging to the petitioners was acquired by the respondents by issuing notification under sections 4 & 6 of the Act of 1894. It proceeded with an award. The petitioners were not satisfied with the award, thus, sought reference under section 18 of the Act of 1894. On the reference, the civil court enhanced the compensation, yet dissatisfied with it, petitioners preferred a First Appeal. It was decided with direction to enhance the compensation further, but dissatisfied by it, a review petition was filed. During the pendency of the review petition, the respondents directed the petitioners to withdraw it, if they want to take higher compensation. The petitioners, accordingly, did not press the review petition.
It is stated that to settle the dispute with the petitioners, the amount of compensation was enhanced by the then Officers. It cannot now be subjected to recovery and that too, after its payment and expiry of the period of five years thereupon. If any bungling was done by the Officers of the respondent no. 3, then till date, neither any action has been initiated nor First Information Report has been lodged against them. The petitioners have been subjected to the recovery notice, despite the enhancement of compensation by the respondents pursuant to the Government order dated 29.09.2001. The prayer is, accordingly, to set aside the impugned recovery notice.
To support the arguments, counsel for the petitioners has made reference to the judgement of this Court in the case of Narendra & Others Vs. State of U.P. & Others [2017 LawSuit (SC) 924]. A further reference is to the judgement in the case of NOIDA Vs. Daulat Ram & Another (First Appeal No. 628 of 1986, decided on 04.11.2011) and in the case of NOIDA, through its Chief Executive Officer Vs. State of U.P. & Others, where the Review Petition No. 362646 of 2014 was disposed of with certain directions and therein, the amount of compensation was enhanced. It was in regard to the land of the same area. The prayer is, accordingly, to cause interference in the impugned notice.
The writ petition has been contested by the side opposite. The counsel submits that the circular dated 29.09.2001 is not applicable. In this case, an award was passed after acquisition of land. It was followed by an order of the civil court on reference under section 18 of the Act of 1894 and in first appeal enhancing the compensation. The review petition, thereupon, was dismissed as not pressed. In the background aforesaid, the Officers of the respondent authority were not having power to enhance the compensation. It was enhanced going contrary to the order passed by this Court in the first appeal of petitioners themselves. They could not have referred the judgement of others where the first appeal was allowed, because petitioners did not file an application under section 28-A of the Act of 1894.
The way the Officers of the respondent - New Okhla Industrial Development Authority had paid Rs. 19.40 crores, remains nothing but deliberate ignorance of the judicial order in the First Appeal of the petitioners themselves and otherwise a fraud. In the first appeal preferred by the petitioners, the compensation was enhanced, yet it was enhanced further by the officers subsequently in ignorance to the judicial order and without any authority in them. So far as the withdrawal of the review petition by the petitioners is concerned, learned counsel submits it was in connivance with the Officers, who asked to withdraw the review petition, so as to allow more than 19.40 crores after going contrary to the order of this Court in first appeal. In any case, the petitioners can be given liberty to seek revival of their review petition.
Reference of the judgements in the first appeal and other cases has been given by the counsel for the petitioners, which includes even an order on the review petition. It is in ignorance to the fact that those orders cannot be applied to the petitioners being not a party and when their first appeal was decided earlier with enhancement of rate, though may not be to the satisfaction of the petitioners. Accordingly, the reference of any judgement in first appeal of other land-holders would be of no consequence for the challenge to the impugned notice.
We have considered the rival submissions of the parties and perused the record.
The facts narrated above show acquisition of the land belonging to the petitioners and others. After completion of process, an award was passed determining the amount of compensation. The petitioners sought reference under section 18 of the Act of 1894. After the reference, civil court passed a detailed enhancing the compensation. The petitioners remained dissatisfied with the aforesaid, thus, preferred first appeal, bearing First Appeal No. 845 of 1999 (Daleep Singh & Others Vs. State of U.P. & Another). The petitioner was also an appellant therein where following judgement was given:-
"In this case also after the perusal of the judgement/decision of Division Bench of this Court, we find that the appellant has been granted the enhanced rate as was granted in the Land Acquisition Reference No.238 of 1984. The land is of the same vicinity and the village. Therefore, we allow the appeal with the direction that the appellant should be given compensation at the rate of Rs.28.12 per sq.yd. along with 30 % solatium and other benefits accordingly as per the provisions of Land Acquisition Act.
The appeal is accordingly allowed. However, there will be no order as to costs. "
The petitioners preferred a review petition, which was then not pressed, said to be on the assurance.
The issue for our consideration is as to whether the Officers of the respondent - New Okhla Industrial Development Authority were competent to enhance the amount of compensation contrary to the judgement in the case of the petitioners themselves and that too, of the High Court in First Appeal, the order of which has been quoted above. The enhancement of the amount by then officers was by more than Rs. 19.40 crores. It is not a case where the petitioners made an application under section 28-A of the Act of 1894 in reference to the judgement in other appeals. If that would have been the case, then, on an application under section 28-A of the Act of 1894, the competent authority and not the then officers of the respondents could have exercised its jurisdiction as per the provisions of law. In this case, application under section 28-A of the Act of 1894 was not submitted.
The enhancement of compensation could not have been in reference to the Government Order dated 29.09.2001. It does not provide for settlement even after an order of the civil court on reference, followed by an order by the High Court in First Appeal. The order dated 29.09.2001, thus, provides no assistance, yet the then Officer of the Authority paid huge amount of Rs.
19.40 crores to the petitioners. This itself speaks about the possible arrangement by the means not provided under the law.
The legal issue, otherwise, is about the authority of the Officers of the respondents to enhance the amount of compensation after the order of the civil court and the first appellate court in the case of the petitioners themselves. The petitioners had exhausted remedy upto First Appeal and the order of the High Court therein became final after dismissal of Review Application. There was no reason for any Officer to ask the petitioners to withdraw the review petition and for the petitioners to accept their proposal against the law. If the act of the Officer is not examined with finding and directions, then it may lead to corrupt practice.
It is for that purpose only, we have discussed the facts and legal position of the case. The act of Officer to give compensation of more than Rs. 19.40 crores is contrary to the judgement of this Court in the First Appeal in the case of the petitioner himself.
If we endorse the action of the Officers to enhance the compensation ignoring the order of the civil court and the first appellate court in the case of the petitioners themselves, it would lead to the illegal practice. It could not be clarified by the counsel as to what prevented the petitioners to exhaust the legal remedy and for that, to press the review petition, instead of remaining on the mercy of the Officers to seek enhancement of compensation even when they were not competent for it. It speaks volumes against the arrangement.
In view of the above, we cannot endorse the action of the Officers of the respondent - Authority to enhance the compensation at their own, even after the judgement of the first appellate court in the case of the petitioners themseves where enhancement was made @ of Rs. 28.12 per square yard. The then officers were not, otherwise, exercising powers under section 28-A of the Act of 1894 and were not otherwise competent for it.
Accordingly, we do not find reason to cause interference in the impugned notice. The petitioners were, however, bona fidely pursuing the review petition in the first appeal. They were persuaded to seek its withdrawal with assurance of enhancement of compensation and accordingly, the petitioners did not press the review petition. The fact, aforesaid, cannot be ignored, because while holding the impugned notice to be legal, we cannot close the right of the petitioners to pursue their case as per the provisions of law.
Accordingly, even while dismissing the writ petition, we leave it open for the petitioners to seek revival of the Review Application. If an appropriate order is passed by the court on the review petition, then the parties would be abided by it, subject to further challenge, if any.
The petitioners could have been given further liberty to seek enhancement by invoking section 28-A of the Act of 1894, but limitation having expired, the aforesaid liberty is not given, but then, the review petition can be pressed and for that, this judgement would not come in their way; rather, it has been given not to promote or endorse the action of the then officers, who paid more than 19 crores to the petitioners without any authority in them.
In case this writ petition is allowed, then it will endorse the action of the authorities to enhance the compensation and its payment, running in crores without authority of law. It would give room to bugling at the instance of the Officers with some arrangements not to be promoted by this Court.
Before parting with the judgement, we make it clear that the responedent may proceed against the Officers who acted in violation of the provisions of law and accordingly, they would be at liberty to take action, which may include even lodging of First Information Report, as the amount involved in these matters is not in thousands or lacs, but in crores.”
The present matter is covered by reasoning given in the judgment aforesaid. Though in the case of Om Dev Singh (supra), a review petition was preferred against the judgment of first appeal. It was withdrawn on a compromise with the authority, thus a liberty was given to seek its revival.
In the instant case, the first appeal preferred by the petitioners was dismissed by this Court in the year 2014 itself and otherwise the first appeal by petitioners' mother was dismissed earlier.
In view of the above, we do not find reason to interfere in the impugned notice. The interference would endorse illegal act of the officers who have paid huge amount towards compensation of land despite an award on acquisition of land and enhancement of compensation thereupon by Civil Court. The First Appeal by the petitioner was dismissed, thus order of the Civil Court attained finality but contrary to the aforesaid, the amount of compensation was enhanced by few officers without authority in law. The Act of 1894 was complete code in itself. The endorsement of the act by not causing interference in the recovery notice would result in acceptance of the nature not provided in law and it may be corrupt practice at the instance of the then officers of the respondent authorities.
The writ petition is accordingly, dismissed.
Order Date :- 8.1.2021 Ashish Pd.
Nath Bhandari Justice Munishwar Digitally signed by Justice Munishwar Nath Bhandari Date: 2021.01.16 12:32:25 +05'30'
Ranjan Agarwal Digitally signed by Justice Rohit Ranjan Agarwal Justice Rohit Date: 2021.01.16 12:33:36 +05'30'