JUDGMENT G.P. Mathur, J.
1. This writ petition under Article 226 of the Constitution has been filed praying that a writ of mandamus be issued commanding the respondents not to dispossess the petitioner from his share in his ancestral house having an area of 2300 sq. ft. which is situate in village Marawa, tehsil and district Basil, except in accordance with law.
2, The case pleaded in the writ petition is that the petitioner Lal Mohan and his brother Vijai Pal Chowdhury (respondent No. 4) are grandsons of Sahdeo and their names were mutated over the said plot after the death of Sahdeo. There is an ancestral house over plot No. 293 in which the petitioner and his brother Vijai Pal Chowdhury had equal share. The plot over which the house stood was not acquired in accordance with the Land Acquisition Act. However, for the purpose of construction of a road, respondent Nos. 5 and 6 (Executive Engineer and Junior Engineer of Rashtriya Nirman Khand) obtained a sale deed of the house in question in favour of the State of U. P. on 23.9.1999 from Vijai Pal Chowdhury and on the strength of the aforesaid sale deed, they want to dispossess the petitioner. The main ground on which the petitioner claims that he cannot be dispossessed is that he is co-sharer of the plot over which the house exists and as he is not one of the executants of the sale deed, his title to the extent of his share over the plot has not passed to the State of U. P.
3. The State has filed a counter-affidavit and a supplementary counter-affidavit by which certain documents have been brought on record. The petitioner has also filed a rejoinder-affidavit. From the material brought on record, the following position emerges :
The State Government Issued a notification under Section 4(1) of the Land Acquisition Act on 11.4.1991 and a corrigendum thereof was published in the Gazette on 3.9.1991 notifying that certain plots were needed for a public purpose, namely, for construction of a road. This was followed by another notification under Section 6 of the Act which was published in the Gazette on 7.10.1991. The notifications show that an area of one bigha 13 biswas and 12 biswancies (1-13-12) of plot No. 239 has been acquired. The petitioner has filed C.H. Form-23 which shows that Sahdeo was not the exclusive owner of plot No. 293 but he had only half share in the same. The other co-sharer in the said plot is Bhagwan Das, son of Bhagirathi, who was real brother of Sahdeo. The pedigree of the parties is given in the plaint of O.S. No. 84 of 1998 filed by petitioner's brother Vijai Pal Chowdhury against the State of U. P. In the Court of Civil Judge (Junior Division), Basti. Along with counter-affidavit of the State, a letter dated 12.1.2000 sent by the Special Land Acquisition Officer, Basti, to the Executive Engineer.
Rashtriya Marg Khand, has been filed and it is mentioned therein that eighty percent of the estimated amount of compensation amounting to Rs.
2,01,372.19 was paid to Sahdeo son of Beral for 0-16-16 area of land and Rs. 1.60,018.98 was paid to Bhagwan Das son of Bhagirathi for 0-13-7 area of land on 21.8.1993. This compensation was paid in accordance with Section 17(3A) of the Land Acquisition Act. The letter further mentions that there was no construction over the land which fell in the share of Bhagwan Das and, consequently, the compen sation amount determined for his area of land came to Rs. 89,081 only and as an excess amount of Rs. 70,937.00 had been paid, proceedings for recovery of the said amount were being taken.
This is permissible under Section 17(3B) of the Act and the excess amount paid can be recovered as arrears of land revenue.
Thereafter, the State Government obtained a sale deed of the house standing over 2300 sq. ft. area of plot No. 293 from Vijai Pal Chowdhury (real brother of the petitioner, Lal Mohan) for a consideration of Rs. 2,83.075 on 23.9.1999. The State Government paid cheque No. 078549 dated 23.9.1999 of Rs. 2.83,075.00 to Vijai Pal Chowdhury. Prior to the sale deed, Vijai Pal Chowdhury had filed O.S. No. 84 of 1998 against State of U. P. and others praying that a decree of injunction be passed against the defendant for restraining them from making any road over an area of Rs. 0-16-16 of plot No. 293 and not to demolish the construction standing thereon.
Learned counsel for the parties have made a statement that subsequently this suit has been dismissed in default. The petitioner Lal Mohan also filed O.S. No. 274 of 2000 impleading the State of U. P.. the Engineers of Road Construction Division and Vijai Pal Chowdhury as defendants in the Court of Civil Judge (Senior Division). Basti. The prayer in this suit is that it be declared that the plaintiff is owner of half share in the property which was conveyed by the sale deed dated 23.9.1999 which was executed by Vijai Pal Chowdhury in favour of the State of U. P. A further prayer has been made that the defendants may be restrained from interfering with the plaintiffs possession over the house situate over the said land.
4. The facts mentioned above show a very intriguing situation. By means of notification issued under Sections 4(1) and 6 of the Land Acquisition Act. only 1-13-12 area of plot No. 293 had been acquired. The total area of plot No. 293 is much more and, consequently. the remaining area of the said plot had not been acquired. Sahdeo. grandfather of the petitioner Lal Mohan and his brother Vijai Pal Chowdhury (respondent No. 4 in the writ petition) was not exclusive owner of plot No. 293 but was a co-sharer having half share. The other co-sharer was Bhagwan Das. According to the letter dated 12.1.2000 of Special Land Acquisition Officer, the share of Sahdeo was 0-16-16 and for this, he had been paid Rs. 2,01,372.19 as the estimated amount of compensation in accordance with Section 17(3-B) of the Land Acquisition Act. The other co-sharer of the plot Bhagwan Das was also paid Rs. 1,60.018.98 as the estimated amount of compensation. Thereafter the State purchased the house existing over plot No. 293 from Vijai Pal Chowdhury on 23.9.1999 after paying Rs. 2,83.075 to him. If compensation over the land acquired had already been paid to Sahdeo, it is not understandable as to how and why a sale deed was obtained from Vijai Pal Chawdhury who is none else but his own grandson. The compensation for the same land cannot be given to both, namely, first to Sahdeo and then to his grandsons. It is well-settled that where some constructions are standing over a land and the said land is acquired, the amount of compensation cannot be determined by assessing the value of the land and "break-up value" of the building separately. The land and building constitute one unit and valuation of the entire unit must be determined as a whole. See Ratan Kumar Tendon v. State of V. P., AIR 1996 SC 2710 and State of Kerala v. P. P. Hasan Koya, AIR 1968 SC 1201. On the same principle, it has been held in a series of decisions that irrigation wells existing over the land cannot be valued separately apart from the land see State of Bihar v. Madheshwar Prasad, 1996 (6) SCC 197; State of Biliar v. Ratan Lal Sahu. 1996 (10) SCC 635 and O. Janardan Reddy v. Special Dy. Collector, 1994 (6) SCC 456. The compensation cannot be paid for the same land twice once to the grandfather (Sahdeo) and then to the grandson. Similarly, two separate amounts for compensation cannot be paid once for the purpose of land acquired and then for the construction standing over the same.
5. It is noteworthy that in paragraph 6 of the writ petition and also in O.S. No. 274 of 2000 filed by the petitioner Lal Mohan, it is stated that the house in dispute had been constructed by Sahdeo. There is a clear averment in paragraph 5 of the plaint of the suit that Sahdeo had constructed the house over that portion of plot No. 293 which has been acquired. These averments made by the petitioner Lal Mohan himself show that the house stands over that portion of plot No. 293 which has been acquired by the State Government. Sahdeo had already been paid compensation of Rs. 2,01.372.19 on 21.8.1993 for the said land. In these circumstances, there was absolutely no reason for purchasing the house by the State Government as by virtue of the acquisition of the land, the land together with the construction standing over it vested with the State Government. In proceedings for determination of compensation, the fact that the construction existed over the acquired land could be taken into consideration. There appears to be no Justification for obtaining a sale deed of the house.
6. The petitioner has also filed a suit being O.S. No. 274 of 2000 which is pending in the Court of Civil Judge (Senior Division). It is averred in the supplementary counter-affidavit that possession of the house has already been taken over and a part of the house has been demolished. From the facts mentioned above. It is clear that the case set up by the writ petitioner Lal Mohan cannot be examined in the present writ petition under Article 226 of the Constitution as it involves adjudication into disputed questions of fact, which can be determined only after appraisal of the oral and documentary evidence. In this view of the matter, the writ petition is liable to be dismissed.
7. In the facts and circumstances of the case, we consider it necessary in the interest of Justice that a proper enquiry be held as to how even after acquisition of land and payment of compensation to Sahdeo, a sale deed of the house was obtained from Vijai Pal Chowdhury on 23.9.1999. The Collector. Basti. Is directed to constitute a committee consisting of Special Land Acquisition Officer and a Sub-Divisional Magistrate who may enquire into the whole matter and submit a report to this Court within 2 months of presentation of a certified copy of this order before him. The Committee will examine all aspects of the matter including the question why even after acquisition of land and payment of compensation to Sahdeo. a sale deed was obtained from Vijai Pal Chowdhury.
8. Subject to directions made above, the writ petition is dismissed. The stay order is vacated.
9. Office is directed to supply a certified copy of the order to the learned standing counsel within a week.