CR No.269 of 2009(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.269 of 2009(O&M) Date of decision: 6.7.2010 State of Punjab through the Land Acquisition Collector ......Petitioner(s) Versus Charan Singh ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Sanjiv Sharma, Sr. Advocate with Mr. Balwinder Singh, Advocate for the petitioner. Rakesh Kumar Garg, J. (Oral) As per the averments, the Punjab Government through the Housing and Urban Development Department notified the land in dispute under Section 4 of the Land Acquisition Act, 1894, for public purpose namely for the setting up of a residential urban estate vide notification dated 19.7.1993. The award No.456 was passed on 20.2.1996 by the Land Acquisition Collector, Urban Development Department, Punjab, SAS Nagar (Mohali) exercising its powers under the provisions of Land Acquisition Act. Since the land owners were not satisfied with the award, the References were filed under Section 18 of the Land Acquisition Act and the same were decided by Sh. Kuldip Singh, Additional District Judge, Rupnagar vide judgment dated 18.7.2001 enhancing the compensation and holding that the land owners/claimants were entitled to compensation @ Rs.6,96,000/- per acre for level land and Rs.3,60,000/- per acre for the land under choe, river and ravines along with all the statutory benefits under Sections 23(1- A), 23(2) and 28 of the Land Acquisition Act, 1894. The petitioner whose reference was also allowed along with others filed execution of the CR No.269 of 2009(O&M) 2 aforesaid award/judgment passed by the Additional District Judge, Rupnagar. In the aforesaid proceedings the Executing Court directed the petitioner-State of Punjab to make payment of interest on the amount of solatium and additional compensation to which the land owners were entitled to vide impugned order dated 15.5.2008. The present revision petition challenging the impugned order dated 15.5.2008 has been filed on behalf of the State of Punjab through the Land Acquisition Collector, Urban Development Department, Punjab, SAS Nagar (Mohali) . In this revision petition, the State of Punjab has been shown to be represented through the Land Acquisition Collector, Urban Development Department, Punjab, SAS Nagar (Mohali) Distt. Rupnagar and the same has been filed on behalf of the State of Punjab through Sh. Balwinder Singh, an Advocate, who was engaged by the Land Acquisition Collector, Urban Development Department, Punjab, SAS Nagar, Mohali and has been paid his fee from the account of Greater Mohali Area Development Authority (for short the 'GMADA'). The revision petition came up for hearing on 17.7.2009 and the following order was passed:- “Mr. Balwinder Singh has caused appearance for the Land Acquisition Collector. Land Acquisition Collector has filed this petition on behalf of the State of Punjab. In which capacity, the Land Acquisition Collector has engaged a private counsel and without sanction of the Government and approval of the Advocate General's Office? Can a petition be instituted or prosecuted, is required to be explained. The Land Acquisition Collector to remain present in Court, on the next date of hearing, CR No.269 of 2009(O&M) 3 to show cause as to why cost not be imposed for by passing the Government.” Instead of submitting the required information as above, CM No.17761-CII of 2009 was filed through Sh.Balwinder Singh, Advocate to implead GMADA, through its Additional Chief Administrator as the petitioner. The aforesaid application was duly supported by an affidavit of Sh. Balwinder Singh, Additional Chief Administrator, GMADA, who in his capacity as Land Acquisition Collector, Urban Development Department, Punjab, SAS Nagar (Mohali) has filed this petition originally. In the aforesaid application for impleadment, it was stated that vide notification dated 14.8.2006, GMADA which is the statutory authority has taken over the area of the acquired land for the purpose of development and was a necessary party in the references but was not impleaded as such by the respondent. Since the compensation is to be paid by the GMADA, it was decided by the GMADA to challenge the impugned order dated 15.5.2008 and accordingly, engaged its counsel to challenge the same and due to an oversight the applicant did not make an application for impleadment of GMADA along with the revision petition which was filed keeping in view the memo of parties before the Reference Court. The relevant part of the aforesaid application reads as follows: “6. That it was decided by the present applicant to challenge the order dated 15.5.2008 and accordingly the applicant engaged its counsel to challenge the same. However, due to an oversight the Applicant did not make an application for impleadment alongwith the petition which was filed keeping in view parties that were before the Ld.ADJ.” CR No.269 of 2009(O&M) 4 A notice was issued in this application as well in the revision petition on 6.8.2009. Vide order dated 16.2.2010, the aforesaid application was withdrawn by the applicant with liberty to file such application in the appropriate forum. On 29.4.2010, after noticing that the order dated 17.7.2009 had not been complied with by the petitioner, a show cause notice was issued to Mr. Balwinder Singh, the Land Acquisition Collector through whom this petition was filed as to why contempt proceedings be not initiated against him for not complying with the orders passed by this Court. The Chief Administrator, GMADA, Mohali was also asked to be present in Court. Vide CM No.14228-CII of 2010, an affidavit of the Chief Administrator, GMADA, was filed wherein it was submitted that the GMADA had no role to play in the present petition as their application for impleadment was withdrawn with liberty to file application in the appropriate forum and thereafter, the application has been filed for impleadment before the Additional District Judge, Ropar which was pending for 3.6.2010. In view of the aforesaid specific stand taken, the Rule against the Chief Administrator, GMADA and Balwinder Singh, Addl. Chief Administrator, GMADA, is discharged. Vide CM No. 14478-CII of 2010, an affidavit of Sh.Balwinder Singh, Land Acquisition Collector, Urban Development Department, Punjab, SAS Nagar (Mohali) was also filed wherein it was stated that the State Government vide Annexure A-2 i.e Memo No.701 dated 10.3.2010 had sanctioned the prosecution of this matter at State expense and had sought to justify the filing of this petition on behalf of the State of Punjab through the Land Acquisition Collector, Urban Development Department, Punjab, SAS Nagar (Mohali). CR No.269 of 2009(O&M) 5 Thus, it may be seen that this petition has been filed on behalf of the State of Punjab through the Land Acquisition Collector, Urban Development Department, Punjab, SAS Nagar, Mohali and the power of attorney in favour of Sh. Balwinder Singh, Advocate has been signed by one Balwinder Singh, the aforesaid Land Acquisition Collector. However, there is nothing on record on the basis of which it can be made out that on the date of filing of the revision petition, the aforesaid Balwinder Singh was working as Land Acquisition Collector, Urban Development Department, Punjab, SAS Nagar, Mohali Distt. Ropar. Even order (Annexure A-2) of the State Government permitting the Advocate General, Punjab, to defend the aforesaid revision petition at the State expense does not show that aforesaid Balwinder Singh was competent to file the present petition by engaging a private counsel. In spite of various orders of this Court, till today Sh. Balwinder Singh, through whom this petition has been filed, has been unable to show that under what capacity he has filed this petition as he is not the Administrative head of the Urban Development Department of the State of Punjab nor he is aware as how he is competent to file the petition on behalf of the State of Punjab. Even there is no decision of the competent authority to challenge the impugned order. Memo Annexure A-1 placed on record along with CM No.14478-CII of 2010 shows that the Land Acquisition Collector of Urban Development Department, Punjab, SAS Nagar, Mohali Distt. Ropar, is asking at his own level to the Chief Administrator, GMADA, to challenge the impugned order and give sanction to pursue the matter through private counsel. Vide Annexure A/2, the Govt. has given sanction to the Advocate General Office of State of Punjab to defend the present revision petition on State expense but there is no decision of the competent Authority of the State of Punjab to challenge the impugned order. From Annexure A/2, the State Government has clearly CR No.269 of 2009(O&M) 6 authorized only the State of Punjab to file the present revision petition. No permission of the Advocate General's Office has been placed on record in favour of Sh. Balwinder Singh, Advocate. It has been very fairly conceded by the learned counsel appearing on behalf of the petitioner that they have not been authorized by the Punjab Advocate General's Office to pursue this petition. Thus, on the basis of aforesaid facts, the only conclusion which can be drawn is that the present petition has been field by Sh. Balwinder Singh, who is Additional Chief Administrator, GMADA ,at his own level at the expenses of GMADA, who is not even a party, till date, in any of the proceedings. It is not in dispute that the determination of the compensation in question, was made by the Land Acquisition Collector, Urban Development Department, Punjab, SAS Nagar, Mohali. In fact, while assessing the compensation under the provisions of the Land Acquisition Act, 1894, the Collector performs the statutory duties of determining the compensation and therefore, it cannot be said that the aforesaid Land Acquisition Collector who has assessed the compensation can be a party to the lis raising question with regard to assessment of compensation or payment thereof. Section 79 of the Code of Civil Procedure (hereinafter 'CPC') specifically deals with suits by and against the Government and provides that in suits by and against the Government, the authority to be impleaded as the plaintiff or defendant, would be the Union of India or Central Government or the State or State Government. Rule 1 of Order XXVII CPC deals with suits by or against the Government or by officers in their official capacity. It provides that in any suit by or against the Government, the plaint or the written statement shall CR No.269 of 2009(O&M) 7 be signed by such person as the Government may like by general or special order authorize in that behalf and shall be verified by any person whom the Government may so appoint. In Chief Conservator of Forests, Government of A.P. v. Collector & Ors; AIR 2003 SC 1805, the Hon'ble Supreme Court observed that writ cannot be entertained without impleading the State if relief is sought against the State. This Court had drawn the analogy from Section 79 CPC, which directs that the State shall be the authority to be named as plaintiff or defendant in a suit by or against the Government and Section 80 thereof directs notice to the Secretary of that State or the Collector of the district before the institution of the suit and Rule 1 of Order XXVII lays down as to who should sign the pleadings. No individual officer of the Government under the scheme of the constitution nor under the CPC, can file a suit nor initiate any proceeding in the name and the post he is holding, who is not a juristic person. Not only this, under Order 27 Rule 2 CPC and the Rules framed thereunder, only a notified Government pleader has been authorized to file a petition on behalf of the State. Sh. Balwinder Singh, Advocate through whom this petition has been filed is not even a Government pleader. It may also be relevant to mention that vide Annexure A-2, the State Government had decided to defend the petition on Government expense and from the aforesaid document, it cannot be made out that permission has been given by the Government to defend the aforesaid revision petition by engaging a private counsel. Not only this, even the power of attorney and vakalatnama executed in favour of Sh. Balwinder Singh, Advocate has been signed by the Land Acquisition Collector who is not competent to take a decision on behalf of the Administrative Head of the Department of Urban Development Punjab to CR No.269 of 2009(O&M) 8 file the present petition. Even till today, no decision of the State of Punjab in the Department of Urban Development has been placed on record showing that a decision has been taken by the Administrator Head of the aforesaid Department to challenge the impugned order. Since this revision petition has not been filed by any of the Competent Authorities, I find no reason to continue with the same. From the aforesaid facts, it is clear that the present petition has been filed by the Land Acquisition Collector, Urban Development Department, Punjab, SAS Nagar, Mohali on his own and without any decision of the competent Authority and without adopting the proper procedure through Govt. Pleader/Advocate General Office of the State of Punjab which has resulted into wastage of Court’s precious time and money of Greater Mohali Area Development Authority. Thus, the present revision petition is dismissed with costs which are assessed at Rs.50,000/-. The costs be paid to the State Legal Services Authority, Punjab within two months from today. However, the State of Punjab, shall be at liberty to recover the aforesaid costs after fixing the liability from the Officer concerned. Let the compliance of the order with regard to payment of costs, be reported to the Court. July 6, 2010 (RAKESH KUMAR GARG) ps JUDGE CR No.269 of 2009(O&M) 9