IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6253 of 1998 1.DR.RAJEEV KUMAR 2.Rajesh Kumar Both sons of Ramashray Prasad Singh, resident of village-Mokamah, Police Station-Mokamah, District- Patna, at present residing at Ashiana Nagar, Patna, Police Station-Shastri Nagar, District-Patna. Versus 1.THE STATE OF BIHAR 2.The Collector, Patna, having its office at Collectorate, Patna, Police Station-Gandhi Maidan, District-Patna. 3.The Additional Collector, Patna having its office at Collectorate, Patna, Police Station-Gandhi Maidan, District-Patna. 4.The District Land Acquisition Officer, Patna having its office at Collectorate, Patna, Police Station- Gandhi Maidan, District-Patna. 5.Rameshwar Viskarma, S/O Late Gurucharan Viskarmam, resident of Mohalla R.K.Bhatacharya Road, Patna. ----------- 10 11/1/2010 Heard Mr. Sidheshwari Prasad Singh, learned Senior Counsel appearing on behalf of the petitioners and counsel for the State. Prayer of the petitioner in this writ application reads as follows:- “That this is an application for issuance of writ in the nature of mandamus commanding the respondent nos. 1 to 5 to prepare an award in the favour of the petitioner against the land measuring 88 squire feet X 13 out of 88 X 54 square feet land situated at R.K. Bhattacharya Road, Patna, Survey Plot No.796, Ward No.10/2 Circle No.9 under Municipal Corporation which was acquired by the Government in L.A. Case No.4 of 1996-97 for the purpose of windening the R.K.Bhattacharya Road, Patna and respondents be further directed to make payment of award money alongwith copound 2 interest at the rate of 18% per annum from the due date till the actual payment is made.” Before this Court would take into account the submission of the parties it would be necessary to record the earlier order dated 15.10.2009 where noticing the aforementioned grievance this Court had directed the authorities to file a clear affidavit on certain issues as would be apparent from the tenor of the aforesaid order quoted hereinbelow:- “From the pleadings on record it would very difficult to decide the case unless the issue with regard to preparation of award as also payment of compensation in terms of Land Acquisition Act is clearly answered by the State and its officials by filing a supplementary counter affidavit. It has to be kept in mind that it is not in dispute that the area of total acquired land in which the interest of the petitioners is confined to 88’x12’ (0.026 acre). This Court would like to know with the help of connected records of Land Acquisition Case No.4/1996-97 as to whether (i)an award for the total area of land of the petitioners has been prepared or not. (ii)It should also be explained as to under which provision of law the Collector of Patna district could have prepared an award for a piece of 30’13’ out of the total land of the petitioners being 88’x13’ and if such award No.24 was made in the name of Rameshwar Viskarma (respondent no.,5) why the award for the remaining portion of the land was not prepared. (iii)Since counsel for the State produces an order dated 6.4.2000 of the District Land Acquisition Officer to contend that the dispute with regard to apportionment of the amount of compensation under award No.24 for a piece of land of 30’x13’ between the petitioner and respondent no.5 has been referred to the Civil Court in terms of Section 30 of the Act, what actually even now prevents the Collector of the District/ Act to prepare an award for the remaining piece of land i.e, 58’x13’, especially when it is submitted by the counsel for the petitioners that 3 thee is no claimant for this portion of the remaining land 58’x13’. (iv)If such award for 58’x13’ has not been prepared till date how much time it would take for the Collector to prepare such an award as also making payment to the petitioners on furnishing of indemnity bond that if in future any person would establish his right for receiving compensation even in respect of that portion of the land, 58’x13’ he would refund the same. Such queries must be answered by the State by filing a supplementary counter affidavit within a period of three weeks from today on which day the record of Land Acquisition Case No.4/1996-97 alongwith the entire order sheet shall be kept ready for perusal of this Court.” Today, the parties have filed their affidavit and in the supplement counter affidavit filed on behalf of respondent nos. 2 to 4 the aforementioned questions have been answered by the official respondents in the following manner:- “That with regard to statement made in paragraph no.4 of the counter Affidavit, is partly matter of record and partially false, misleading and denied herewith. It is submitted that the petitioners have filed his claim on 6.5.1997 before District Law Acquisition Officer Patna as admitted in paragraph no.8 of the counter affidavit and the petition was entertained which is apparent from perusal of annexure 8 of the writ petition and the Collector has passed an order on 2.9.1997 for preparation of award in favour of the petitioner. But, with malafide design instead of compliance of the final order mischief was committed to harass the real persons who are entitled for Award in manner quoted below- vij lekgRrkZ vkns” iyd 8 ij vafdr vkns” ds vkyksd esa foe”Z fd;k A vkosnd Mk0 jktho dqekj ,oa jkts” dqekj dk E;fuliy losZ IykSV ua0&795 ,oa 796 esa E;qfuliy uD”kk ds vuqlkj iwjc if’pe 58 QhV 54 QhV mRrj nf{k.k Hkwfe vtZuk/khu gS A bl vtZuk/khu Hkwfe dk iapkr ,oa [ksljk iath esa lq/kkj 4 dj iapkV dks rS;kj djuk gS A bl Hkwfe ij dksbZ fookn ugha gS A IykSV ua0&796 esa 30 QhV xq.ks 54 QhV 1620 oxZ QhV esa Mk0 jktho dqekj ,oa jkts” dqekj ,oa jkts” dqekj rFkk jkes’oj fo’odekZ ds chp fookn py jgk gS A bl fooknh IykSV dk iapkV jkes’oj fo’odekZ ds uke ij cuk gqvk gS ftldk Hkqxrku vHkh ugha gqvk gS A mi;qZDr ifjfLFkfr esa Mk0 jktho dqekj ,oa jkts” dqekj ds uke ls iapkV rS;kj djus ,oa Hkqxrku djus dh Lohd`fr ftyk inkf/kdkjh nsuk pkgsaxs A g0@&vLi"V 29&8&97 ftyk Hkw&vtZu inkf/kdkjh] iVuk lekgRrkZ ftyk HkwvtZu inkf/kdkjh dk vkns” iyd 29&8&97 dk vkns” , va” , ds vuqlkj iapkV rS;kj dj jkf” Hkqxrku dk Lohd`fr nh tk ldrh gS A eqvkotk Hkqxrku dh Lohd`fr nh tkrh gS A g0@&vLi"V 2&9&97 30&9&97 %lekgRrkZ ds vkns” ds Ik’pkr vfHkys[k izkIr gqvk gS A iapkV ,oa ewY;kadu iath esa uke izfo"V djus ds fy;s Jh jkeizos” flag dkuwuxksa dks vkns” fn;k tkrk gS fd dkuwuxks iapkV ,oa ewY;kadu esa izfo"V dj ”h/kz miLFkkfir djsa A g0@&vLi"V 6.That with regard to the statement made in paragraph no.5 of the supplementary counter Affidavit it is stated by the State that no award has been prepared either partly or wholly for area in question in favour of the petitioner. 7.That with regard to statement made in paragraph No.6 of the supplementary counter Affidavit, it is stated that the Hon’ble Court has put the specific question No. (ii) that “it should also be explained as to under which provision of law the Collector of Patna district could have prepared an award for a 5 piece of 30’x13’ out of the total land of the petitioner being 88’x 13’ and if such award no.24 was made in the name of Rameshwar Viskarma (Respondent no.5) why the award of the rest land was not prepared. There is no answer that under which provision of law award was prepared vide Award No.24, area 30’x13’ in favour of Rameshwar Visharma. It is an admitted position that Rameshwar Viswakarma is monthly tenant of the petitioner and the petitioner has filed title eviction suit vide no.549/86 and this petitioner has succeeded in the title eviction suit as pr order of the learned Sub.Judge III Patna vide its order dated 16.1.1996 against which the Vishwakarma has filed title appeal vide no. 31/96 which is pending before the court of learned A.D.J. 10, Patna. It is stated that authorities were duty bound to prepare the award in the name of real owner of land under land acquisition Act. It is stated that with malafide design steps were taken for preparation of award in respect of 30’x13’ feet in the name of monthly tenant Rameshwar Viskarma and no award is made against remaining portion of 58x13 feet in favour of the petitioner. But it is further stated by the State in supplementary counter in paragraph no.6 of the Supplementary counter Affidavit that award of remaining portion of land measuring 58’x13’ equivalent to 0.0173 acre area were prepared in the name of Smt. Hemlata Devi and Smt. Shail Kumari separately (who had no concern with our land) for respective area of 0.014 acre and 0.0069 acres which stands respectively in award in 23 and 25 as their name has been recorded in Kheshra Panji during Khanapuri. It is relevant to point out that Smt. Hemlata Devi and Smt. Shail Kumari are different persons and possessing title on the basis of different sale deeds on different pieces of land which is apparent from the perusal of the sale deed of Smt. Hemlata Devi and one Smt. Sharda Devi. In the said aforesaid sale deed, the map of land is also enclosed. Smt. Hemlata Devi is owner of plot no. E and F measuring 30’x54’ whereas Smt. Sharda Devi is owner of plot no. D and G shown in map measuring 25’x54’ and Smt. Sharda Devi has sold her land shown in map to Smt. Shail Kumari wife of Sri D.N.Mehta. Which speaks volume against the conduct of land acquisition officer relating to preparation of land 6 area 0.026 acre equally to 88’x13’ upon which the right and title of the petitioners was there vide different title deeds and all the deed of title was enclosed in the writ petition vide Annexure-1 to 6 series. 8.That with regard to statement made in paragraph no.7 of the Supplementary Counter Affidavit is misleading and denied herewith Smt. Shail Kumari and Smt. Hemlata are not the owner of land was mentioned in the supplementary counter affidavit measuring 58’x13’ they are the owner of the different land which is adjacent to the land of the petitioners and both have got their title on the basis of their own sale deeds which enclosed as Annexure-14 to the petition. So that only to mislead the Hon’ble Court the award the persons prepared against Hemlata Devi and Shail Kumari has been mentined against 58’x13’ although the petitioners have title and gift deed for his own land and Smt. Shail kumari and Smt. Hemlata has own title sale deed upon their own land which is apparent from the perusal of the map of their sale deed. 9.That with regard to statement made in paragraph no.8 of the Supplementary Counter Affidavit it is false, misleading and denied herewith. There is no concern with the land of the petitioner and the land of Smt. Hemlata and Smt. Shail Kumari and their land is adjacent east to the petitioner’s land. So Smt. Shail kumari and Smt. Hemlata are not claimant of petitioner’s property rather they are claimant of their own property which is elaborately mentioned in the above paragraph. 10.That statement made in paragraph no.9 of the Supplementary Counter Affidavit is misleading and denied herewith. It is stated that prior to acquiring the land it is duty of the competent authority to trace out the land and measuring the area and thereafter as per the land acquisition Act processes are to be completed but in the instant case they have acquired the land and now they are creating mischief in order to harass the petitioners. Deliberately with malafide intention they have said in Supplementary Counter Affidavit. That the sale deed do not contain the plotwise area this is land in preparation of the award as in which plot how much area will be kept, although plot they have acquired is admitted. It is submitted that authorities 7 should have prepared that map plot wise and our land should have been coloured plotwise instead of doing so the authorities have tried to create confusion to harass the real owner. 11.That with regard to statement made in paragraph no.10 of the Supplementary Counter Affidavit is misleading and speaks volume against the land acquisition department. Rameshwar Vishwakarma is the monthly tenant of the petitioner but instead of the petitioner, the award was prepared in favour of Rameshwar Vishwakarma vide award no.24 contained in Plot No.796 which was one of the plot of the petitioner under sale deed.” The aforementioned statements have been sought to be also controverted by the petitioners by filing reply of the Supplementary Counter Affidavit, but the effect of such pleadings does not extend beyond the facts that whereas the petitioners are still adamant that for their piece of land measuring 88’x13’ no valid and legal award have been prepared and therefore the respondents are duty bound even now to prepare such award, the stand of the official respondents is again very clear that three awards, namely, Award Nos. 23, 24 and 25 have been exclusively made only for the piece of land of the petitioners measuring 88’x13’ in the name of Rameshwar Vishwakarma, Smt. Hemlata Devi and Smt. Shaill Kumari. Counsel for the petitioners in such a circumstances submits that they are still prepared to abide by the decision of Collector of the district and if the Collector of the district on his personal enquiry would still hold that the award of the land being claimed by the petitioners measuring 88’x13’ has already been made as is claimed in the supplementary counter affidavit, the petitioners will definitely abide by the result of the proceeding now under section 30 of the Act which is 8 said to be pending before the Civil Court. On the other hand, counsel for the petitioners contends that if the Collector of the district would find that only for the piece of land measuring 19’x13’ such an award was prepared allegedly in the name of Smt. Hemlata Devi and Smt. Shail Kumari which are not in respect of the land of the petitioners, the Collector of the district may be directed to get the award made for the piece of land belonging to the petitioners. Counsel for the State having reiterated the stand taken in the supplementary counter affidavit in presence of the District Land Acquisition Officer, who has sworn an affidavit personally and has taken a clear stand that the Collector of the district even in terms of the Land Acquisition Act is bound to look into the question with regard to making of the award, but then he has strong reservation that if the issue has already been referred to the Civil Court, the Collector of the district will find it difficult to do anything in the matter. In the opinion of this Court, two things have to be really ascertained by the Collector for getting the dispute resolved. Firstly, what exactly is location and measurement of the land of the petitioners for which they want declaration of the award and whether they are entitled for declaration of such award. The second and last thing to be determined in this respect will be whether any award for the land of the petitioners has already been made in the name of any person including Rameshwar Vishwakarma, Smt. Hemlata Devi and Smt. Shail Kumari. If the Collector of the district would find that the 9 petitioners do not have any claim on the piece of land acquired by the State he will simply record that the petitioners are not entitled for preparation of award. If however the Collector would find that the petitioners are entitled for the award of the entire area 88’x13’ or any part thereof and such award has not been prepared till date either in the whole or part thereof, the Collector of the district will proceed to make the award. If on the contrary, the Collector of the district would find that the award for the area in question has already been made as is claimed in this supplementary counter affidavit sworn and filed by the District Land Acquisition Officer and the award nos. 23,24 and 25 in the name of Smt. Hemlata Devi, Rameshwar Vishwakarma and Smt. Shail kumari respectively are meant for the land allegedly belonging to the petitioners he will leave the matter to be decided in terms of Section 30 of the Land Acquisition Act. In the event, for any portion of land no reference has been made to the Civil Court in terms of section 30 of the Act the same will also be made by the Collector of the district keeping in view the dispute as has been sought to be raised by the petitioners. It is however made clear that whatever has to be done by the Collector of the district for compliance of this order, must be done in a specific period of six months from the date of receipt/production of a copy of this order. The Collector of the District however, before deciding/adjudicating the issues will hear the petitioners as also Rameshwar Vishwakarma, Smt. Hemlata Devi and Smt. Shail Kumari and would thereafter pass a reasoned final order. 10 Let it be made clear that this Court has expressed no opinion on the merits of rival claim of the parties as with regard to the admissibility of preparation of award in the name of the petitioners. With the aforementioned observations/directions this application is disposed of. Abhay Kumar ( Mihir Kumar Jha,J )