Hon. Ritu Raj Awasthi, J.
Heard Sri Brijesh Kumar Saxena, learned counsel for the petitioner as well as Sri H. P. Srivastava, appearing for the State and perused the record.
This writ petition by the petitioner, the Upper India Couper Paper Mills Co. Ltd. has been filed claiming compensation under the provisions of Land Acquisition Act, 1894 towards Khasra Plot Nos. 61, 66 and 108 situated in village- Hasanganj Par, Tehsil & District Lucknow after notifying the aforesaid land under sections 4, 6 & 17(4) of the Land Acquisition Act.
The possession of the aforesaid land was taken by the State Government on 08.02.1972 for the purpose of construction of 'Bandha' on the bank of River- Gomti at Lucknow.
It appears that though the aforesaid land was allegedly included in the construction of 'Bandha' neither the said Khasra plots were notified under the provisions of Land Acquisition Act nor were otherwise acquired under the provisions of Land Acquisition Act or any other law but the possession of the same was taken by the State Government.
The petitioner feeling aggrieved by the said action filed the present petition claiming the aforesaid relief.
During the course of hearing of this petition, it appears that dispute was raised regarding the genuineness of certain letters said to have been written by the departmental authority and also regarding the identity of the land, therefore 2 a Division Bench of this Court vide its order dated 24.09.1998 appointed a commissioner and issued the following directions:
a) The Addl. Registrar is directed to send a copy of the order to the Director General of Police, with a letter of request to appoint some senior and independent member of the Force, not less than the rank of Dy. Inspector General of Police, to inquire into the matter as to whether these letters are fictitious or not, how the authorities concerned have acted upon these letters up till now.
b) He shall also make spot inquiry and submit a report as to whether these plots in fact were in the possession of the petitioner or with the Department. For the demarcation of the said Plot, we direct the State Government to provide an Inquiry Officer with the records, especially the Bandobast/Settlement Record and depute some senior most Surveyor, demarcate the plots in dispute and point out to the Inquiry Officer, within a week of the receipt of request of the Inquiry Officer.
c) The Inquiry Officer is directed to submit his report to this Court within six weeks from the date of receipt of the copy of the order. A report dated 15.04.1998 has been submitted before the Court. Sri Brijesh Kumar Saxena, appearing for the petitioner submits that the report says that for want of fixed points, the survey could not be made and, therefore, the observation made in the report that the plots aforesaid must have immersed into river cannot be taken as correct. He further says that the Commissioner though was required to furnish report in respect of the plots in question namely the subject matter of the present writ petition but he without any authority and without any direction of this Court has made certain observations in respect to other plots also namely plot nos. 72 & 109 etc. 3 Submission is that the observation made in respect of right title and interest of the petitioner with respect to those plots which are not the subject matter of this writ petition, the Commissioner was not authorized to give his finding with respect to right, title and interest of the petitioner particularly when with respect to other plots, the compensation has already been paid and the acquisition has attained finality.
Learned counsel for the petitioner submits that in view of the report submitted by the Commissioner wherein identification of the plots in question namely 61, 66 and 108 could not be made, the petitioner may be allowed to pursue his remedy in civil court so that aforesaid facts could be determined by leading evidence and accordingly this writ petition be dismissed with the aforesaid liberty.
Sri H. P. Srivastava, appearing for the State also says that matter involves disputed question of facts and the report aforesaid in so far it deals with the plots which are not the subject matter of the present writ petition, cannot be taken into account nor is relevant to resolve the controversy. He further says that, in fact, the entire report or any part thereof cannot be allowed to be relied upon in view of the fact that the report does not give any finding in respect of the plots in question rather it fails to identify the said plots.
We have considered the aforesaid pleas raised by both the parties and are of the considered opinion that in a matter where compensation has been claimed with respect to certain plots mentioned in the writ petition on the ground that the possession of the same was taken by the respondent for raising construction of 'Bundha' over the bank of the river Gomti, that too without acquisition and where the Commissioner's report fails to identify the said plots, the dispute of the like nature cannot be decided in writ jurisdiction. 4
We also take notice of the plea of the petitioner's counsel that if the plots of the petitioner namely plot nos. 61, 66 and 108 have been taken by the State Government for the construction of 'Bandha' or for any other government purpose/public purpose, may be without acquisition or after acquisition the petitioner would be entitled for adequate compensation in case they establish their right and possession over the land in question on the date of taking over of the possession.
We also take notice of the plea of the petitioner's counsel that while calculating the compensation amount, the principles enumerated under the provisions of Land Acquisition Act, shall be applicable irrespective of the fact whether the land stands acquired or not, thus the compensation will accordingly have to be awarded if the possession has been taken even without acquisition.
Since this Court would not enter into the disputed question of facts and the Commissioner's report as furnished, is of no assistance in deciding the aforesaid issues as such, liberty is being granted to the petitioner to approach the civil court or any other appropriate forum under the law as may be available. We thus find that the aforesaid Commissioner report deserves to be set aside, which is hereby set aside.
The writ petition is dismissed with the liberty to the petitioner to approach the appropriate forum as may be permissible under law where the matter shall be looked into and decided afresh, excluding from consideration the Commissioner's report which has already been set aside by this Court. Dt/- 04.01.2010 Im/-