IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RFA No.163 of 1999 Reserved on 7.8.2008 Date of decision 01.9.2008 H.P. Housing & Urban Development Authority. Appellant Vs. Smt.Shakuntla Devi and others Respondents Coram: The Hon’ble Mr.Justice R.B.Misra,J. Whether approved for reporting?1 Yes. For the Appellant: Mr. Bhupinder Gupta, Senior Advocate along with Mr.J.R.Thakur and Mr. Janesh Gupta, Advocates. For the Respondents : Mr.G.D.Verma, Senior Advocate with Mr.B.C.Verma, Advocate, for respondents 1 & 2. Mr.P.K.Sharma, Addl. Advocate General, for respondent No.3. Mr. Ramakant Sharma, Advocate, for Respondents No.4 to 9. R.B.Misra, J. The present appeal preferred under Section 54 of the Land Acquisition Act, 1894 (in short L.A. Act) is directed against the order dated 9.6.1999 passed by learned District Judge, Solan in case No.8-S/4 of 1998, whereby the learned District Judge dismissed the petition of the appellant-petitioner under Section 28-A (3) read with Section 18(2)-A of the L.A. Act. A further prayer has also been made by the appellant in present appeal to allow the appeal and set aside the order dated 29.12.1997 of Land Acquisition Collector. 1 Whether reporter of local papers are allowed to see the judgment ? 2 2. In the present appeal the main controversy to be adjudicated upon shall be as follows:- (a) Whether in the facts and circumstances of the case present appeal under Section 54 of the L.A. Act is maintainable against the order dated 9.6.1999 of learned District Judge, Solan, refusing to entertain the petition under Section 28-A(3) read with Section 18 (2)(A) of the Land Acquisition Act? (b) Whether the present appeal preferred under Section 28-A(3) of read with Section 18(2)(A) of the L.A. Act is maintainable in reference to the Award of Land Acquisition Collector, Solan dated 29.12.1997, whereby the Land Acquisition Collector while entertaining the petition under Section 28-A(3) of the L.A. Act for reconsideration of the compensation amount of the claimant has exceeded its jurisdiction and has re-determined the area or the share of the parties in favour of the claimants and has made the apportionment of the compensation which could have been done under Section 30 of the L.A. Act only? (c) Whether in the facts and circumstances the present appeal under Section 54 of the L.A. Act could be entertained against the order dated 29.12.1997 of Land Acquisition Collector, Solan awarding compensation in exercise of his power under Section 28-A(3) of the L.A. Act? 3. For adjudicating the present appeal, it is necessary to give brief facts of the case. The appellant had acquired land for establishment of Parwanoo Township. One of the notifications for acquisition of land was notified on 24.7.1970 and in that respect the Collector had passed award on 21.6.1973. The interested persons preferred references which were decided separately from time to time. The State of H.P. and the appellant herein preferred appeals in the High Court and the matter was relegated back for determination of compensation afresh. In compliance thereto, learned District Judge had made a fresh reference award on 17.5.1991 assessing the market value of the land at Rs.4000/- per bigha. In reference to the award dated 21.6.1973 of Land Acquisition Collector, the amount of compensation was paid to the parties on 21.5.1974. However, 3 the Collector while apportioning the compensation gave 1/5th share each to the share holders, namely, Amrit Singh, Darshan Singh, Hoshiar Singh and Fakir Chand ; Mr.Chuni Singh, the predecessor-in-interest of Smt.Shakuntla Devi and Harnam Singh were jointly given 1/5th share. It appears that Chunni Singh and Harnam Singh had received the amount of compensation without any protest. Both of them preferred a reference case No. 2-S/4 of 1975 under Section 30 of the L.A. Act, before the learned District Judge Solan, claiming 1/6th share each, in which reply to the reference was filed by Land Acquisition Collector as well as private respondents. However, at the instruction of Chuni Singh and Harnam Singh their counsel made a statement on 17.9.1975 before the learned District Judge that they did not wish to pursue the said above reference under Section 30 of the L.A. Act, therefore, in view of such statement learned District Judge dismissed the above reference case on 17.9.1975 itself. 4. But other persons whose land was acquired under the same notification under Section 4 of L.A. Act, being aggrieved, made reference under Section 18 of L.A. Act to the L.A. Collector which was decided by learned District Judge, Solan on 17.5.1999 by awarding compensation for the land acquired at the rate of Rs.4000/- per bigha. The respondents No.1 and 2 whose land was also acquired under same notification approached the L.A. Collector under Section 28-A of L.A. Act by way of joint application for giving enhanced compensation. But the application was rejected by L.A. Collector on the ground of limitation. Then the respondents No.1 and 2 herein, made reference under Section 28-A(3) of L.A. Act which was allowed by learned District Judge and the case was remitted to L.A. Collector with direction to assess the payment of compensation as per award dated 17.5.1991 of learned District Judge. 5. It appears that Smt.Shakuntla Devi widow of Chuni Singh and Harnam Singh (the respondents No.1 and 2 in the present appeal), had made only two respondents i.e. Land Acquisition Collector and H.P. and 4 Housing Board (now H.P. Housing & Development Authority) in the above case. The learned Land Acquisition Collector vide its order dated 29.12.1997 while disposing of the case No.2/LAC/97 has held that the petitioners were entitled to the compensation at the rate of Rs.4000/- per bigha. However, in respect of payment of enhanced compensation of Rs.4000/- per bigha no one including the present appellant as well as the other respondents were aggrieved of. The present appellant is aggrieved by the order dated 29.12.1997 to the extent of observation of learned Acquisition Collector that respondents No.1 and 2, namely, Smt.Shakuntla Devi and Harnam Singh were owners to the extent of 2 shares out of 6 shares and they were entitled to the compensation for 21-9 bighas of land. 6. The appellant being aggrieved as mentioned above had preferred reference petition under Section 28-A(3) read with Section 18(2)-A of the L.A. Act, mainly on the ground, that the total land acquired was 69.08 bighas and total share of respondents was 13 bighas only. The appellant has since already been paid compensation for 51.19 bighas of land and since share has not been properly worked out and since respondents No.1 and 2 were joint owners of 1/5th share of land acquired, only, therefore the Land Acquisition Collector has no right to re-determine the area. 7. As contended by learned counsel for the appellant that the learned District Judge has neither framed any issue nor asked the parties to lead evidence and has erroneously rejected the reference petition No.8-S/4 of 98 of the appellant on 9.6.1999 by observing that larger amount if paid to the co-sharer than the entitlement, as such, the matter can not be looked into in the reference petition and for payment of excess amount to any person, legal proceedings can be initiated before proper forum and for this remedy, reference petition under Section 28-A(3) is not maintainable and as such reference petition was rejected. The learned District Judge, Solan in the impugned order dated 9.6.1999 has also observed as under: “The award dated 29.12.1991 of the Collector is based upon the award dated 17.5.1991 passed by my learned predecessor. Under Section 28-A, Land Acquisition Act, the Collector was required to 5 re-determine the compensation on the basis of the award of the District Judge qua the respondents 1 and 2 whose land was acquired by the petitioner. The learned Collector has drawn the award dated 29.12.1997 in terms of the award dated 17.5.1991 of the District Judge dated 17.5.1991. The Collector awarded compensation at the rate of Rs.4000/- per bigha allowing solatium and interest etc. in terms of the award dated 17.5.1991. It means that there is no violation of the award dated 17.5.19991 of the learned District Judge.” 8. Learned counsel for the appellant has contended that the Land Acquisition Collector while re-determining the compensation under Section 28-A (3) read with Section 18(2) A of the L.A. Act has no right, or authority or power to reapportion the share and re-determine the area, as he was only confined to re-determine the compensation on the basis of the award made. 9. Mr.G.D.Verma, learned Senior Counsel appearing for respondents No.1 and 2 has submitted as below:- (i) order dated 29.12.1997 passed by the Land Acquisition Collector in case No.2/LAC/97 and subsequently the reference order dated 9.6.1999 of learned District Judge, Solan, holding that the larger amount if any paid to the co-sharer than entitlement cannot be looked into reference petition and as such cannot be challenged in the present petition preferred under Section 54 of the L.A. Act.; (ii) Land Acquisition Collector is an agent of the appellant and being an agent of appellant i.e. an acquiring department, had made an offer of compensation vide its order dated 29.12.1997 to respondents No.1 and 2 then the amount of compensation awarded by the reference court can not be less or reduced than the amount awarded by the L.A. Collector in view of the provisions of Section 25 of the L.A. Act; (iii) The appellant cannot be termed as ‘person’ for purposes of availing remedy under Section 18(2(a) as well as Section 28-A (3) of L.A. Act; as only ‘interested persons’ or person interested who 6 have not accepted the award or a person who has not resorted to any recourse under Section 18 of the L.A. Act could be a relevant ‘person’ to avail remedy under Section 18(2)(a) as well as under Section 28-A(3) of L.A. Act. (iv) The appellant cannot be a person who may seek reference through the Land Acquisition Collector for the determination of amount of compensation under the award. To strengthen the argument Mr. G.D.Verma has referred and relied upon decision (1986)4 SCC 151,{ Mewa Ram (deceased) by his LRs and others v. State of Haryana through the Land Acquisition Collector, Gurgaon} and has submitted that Section 28-A is intended and meant for the inarticulate and poor people who by reason of their poverty and ignorance have failed to take advantage of the right of reference to the civil court under Section 18 of the L.A. Act and for applicability of Section 28-A the condition indicated in Section 28-A of the L.A. Act has to be satisfied and the person as indicated in Section 28-A and Section 18(2)(a) could only be entitled to avail the remedy and the recourse under these provisions and none else including the appellant herein. It has further been contended by Mr. Verma learned counsel that in view of the provisions of Section 25 and 28-A of the L.A. Act, the respondents No.1 and 2 are not unduly on technical grounds be deprived of their legitimate claim which has been extended to them by the order dated 29.12.1997 of the L. A. Collector while adjudicating case No.2/LAC/97. 10. On the other hand Mr.Ramakant Sharma, learned counsel appearing for respondents No.4 to 9 has submitted that appellant is a local authority or ‘person interested’ in whose favour the land has been acquired by the State and it is ultimately the appellant who is responsible and is to disburse the compensation to the shareholders as per their entitlement as awarded by the competent authority. 7 11. Mr. Bhupinder Gupta, learned senior counsel appearing for the appellant has argued that amount in reference to the award has to be paid to the actual claimants and the re-determination of amount of compensation on the basis of the award of the court could be made under Section 28-A of L.A. Act in favour of those claimants who had not availed benefit under Section 18 of L.A. Act and the apportionment of compensation and any dispute regarding the same could be resolved under Section 30 of the ‘L.A. Act.’ It is the L.A. Collector who has to refer the dispute of apportionment for the decision of the court if any, under Section 30 of L.A. Act and for the re-determination of compensation under Section 28-A(1) on the basis of the award of the Court. L.A. Collector himself has to exercise its power under Section 28-A(2) of the L.A. Act after conducting inquiry and giving notice to the persons interested and giving them a reasonable opportunity of hearing. Any interested person who has not accepted the award indicated in Section 18-A(2) may by written application to the Land Acquisition Collector, require that the matter may be referred for the determination of the court. But the appellant herein though is not claimant to receive the compensation for the practical purpose in the context of the land acquisition but is an ‘interested person’ who has to ensure that the amount of compensation on re-determination of the award of the court has to be allocated and disbursed to the true claimants as per their entitlement. According to Mr. Gupta, the appellant is the interested person and has timely filed the present appeal under Section 54 of the L.A. Act against the both the orders dated 29.12.1997 passed by the L. A. Collector as well as order dated 9.6.1999 passed by the District Judge, Solan. 12. Mr. Gupta has relied upon the decision of Supreme Court in Himalayan Tiles and Marble (P) Ltd. vs. Francis Victor Coutinho (dead) by LRs, (1980)3 SCC 223 where the definition of ‘person interested’ is defined in paras 8 and 14 to the following effect: 8 “8. It seems to us that the definition of ‘a person interested’ given in Section 18 is an inclusive definition and must be liberally construed so as to embrace all persons who may be directly or indirectly interested either in the title to the land or in the quantum of compensation. In the instant case, it is not disputed that the lands were actually acquired for the purpose of the company and once the land vested in the government, after acquisition, it stood transferred to the company under the agreement entered into between the company and the government. Thus, it cannot be said that the company had no claim or title to the land at all. Secondly, since under the agreement the company had to pay the compensation, it was most certainly interested in seeing that a proper quantum of compensation was fixed so that the purpose, the company could undoubtedly appear and adduce evidence on the question of the quantum of compensation. “14. Thus, the preponderance of judicial opinion seems to favour the view that the definition of ‘person interested’ must be liberally construed to as to include a body, local authority, or a company for whose benefit the land is acquired and who is bound under an agreement to pay the compensation. In our opinion, this view records with the principles of equity, justice and good conscience. How can it be said that a person for whose benefit the land is acquired and who is to pay the compensation is not a person interested even though its stake may be extremely vital? For instance, the land acquisition proceedings may be held to be invalid and thus a person concerned is completely deprived of the benefit which is proposed to be given to him. Similarly, if such a person is not heard by the Collector or a court, he may have to pay a very heavy compensation which, in case he is allowed to appear before a court, he could have satisfied it that the compensation was for too heavy having regard to the nature and extent of the land. We are, therefore, unable to agree with the view taken by the Orissa High Court or even by he Calcutta High Court that a company ,local authority or a person for whose benefit the land is acquired is not an interested person. We are satisfied that such a person is vitally interested both in the title to the property as also in the compensation to be paid therefore because both these factors concern its future course of action and if decided against him, seriously prejudice his rights. Moreover, in view of the decision of this Court referred to above, we hold that the appellant was undoubtedly a person interested as contemplated by Section 18(1) 9 of the act. The High Court, therefore, committed an error in throwing out the appeal of the appellant on the ground that it had no locus to file an appeal before the Bench.” 13. Mr. Gupta, learned counsel for appellant has further placed reliance on U.P.Awas Evam Vikas Parishad vs. Gyan Devi (dead) by LRs. And others, (1995)2 SCC 326 and has referred following paragraphs as below: “21. …….. The law is well settled that a necessary party is one without whom no order can be made effectively and a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision of the question involved in the proceeding. ( See Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue.) A local authority for whom land is being acquired has a right to participate in the acquisition proceedings in the matter of determination of the amount of compensation while they are pending before the Collector and to adduce evidence in the said proceedings. While it is precluded from seeking a reference against the award of the Collector it can defend the award and oppose the enhancement of the amount of the land. Moreover, the local authority has a right to appear and adduce evidence before the reference court. Having regard to the aforesaid circumstances, we are of the opinion that the presence of the local authority is necessary for the decision of the question involved in the proceedings before the reference court and it is a proper party in the proceedings. The local authority is, therefore, entitled to be impleaded as a party in the proceedings before the reference court. “24. To sum up our conclusions are: 1. Section 50(2) of the L.A. Act confers on a local authority for whom land is being acquired a right to appear in the acquisition proceedings before the Collector and the reference court and adduce evidence for the purpose of determining the amount of compensation. 2. The said right carries with it the right to be given adequate notice by the Collector as well as the reference court before whom acquisition proceedings are pending on the date on which the matter of determination of compensation will be taken up. 10 3. The proviso to Section 50(2) only precludes a local authority from seeking a reference but it does not deprive the local authority which feels aggrieved by the determination of the amount of compensation by the Collector or by the reference court to invoke the remedy under Article 226 of the Constitution as well as the remedies available under the L.A. Act. 4. In the event of denial of the right conferred by Section 50(2) on account of failure of the Collector to serve notice of the acquisition proceedings, the local authority can invoke the jurisdiction of the High Court under Article 226 of the Constitution. 5. Even when notice has been served on the local authority the remedy under Article 226 of the Constitution would be available to the local authority on grounds on which judicial review is permissible under Article 226. 6. The local authority is a proper party in the proceedings before reference court and is entitled to be impleaded as a party in those proceedings wherein it can defend the determination of the amount of compensation by the Collector and oppose enhancement of the said amount and also adduce evidence in that regard. 7. In the event of enhancement of the amount of compensation by the reference court if the Government does not file an appeal, the local authority can file an appeal against the award in the High Court after obtaining leave of the Court. 8. In an appeal by the person having an interest in land seeking enhancement of the amount of compensation awarded by the reference court, the local authority should be impleaded as a party and is entitled to be served notice of the said appeal. This would apply to an appeal in the High Court as well as in this Court. 9. Since a company for whom land is being acquired has the same right as a local authority under Section 50(2), whatever has been said with regard to a local authority would apply to a company too. 10. The matters which stand finally concluded, will, however not be reopened. “ “39. The submission advanced on behalf of the appellant that it being statutorily entitled to lead evidence, it was incumbent on the Collector and the court to issue notice to it and if they failed to 11 discharge their obligation, the appellant was entitled to challenge the determination of compensation in a higher court by filing appeal or writ petition under Article 226 of the Constitution of India was under a complete misapprehension. Right to notice in proceedings in court of law or quasi-judicial proceedings are different than the right of appeal. The former may arise either under the statutory provision or the principle of natural justice may require it or it may be necessary on principle of legitimate expectation. That shall be adverted to later. But right of appeal is always statutory. The courts cannot confer or infer it. The report of the Select Committee has already been extracted. Its recommendation was against granting any right of appeal or reference to a local authority or company. The recommendation found expression in sub-section (2) of Section 50. The specific bar against seeking reference brings out the legislative intention of precluding the local authority from filing any appeal against determination of compensation by the court. What is legislatively not permitted cannot be read by implication, not in respect of right of appeal, as it “a creature of statute”. (Snankar Kerba Jadhav v. State of Maharashtra). “54. In the event of enhancement of the amount of compensation by the reference court if the Government does not file an appeal the local authority can file an appeal against the award in the High Court after obtaining leave of the court. “ 14. Mr. Gupta, learned senior counsel has further referred and relied upon the decision of Nuclear Power Corporation v. Gajraj Singh and another, (1996) 11 SCC 403 where Nuclear Power Corporation was said to be interested person for preferring appeal under Section 54 of the L.A. Act. 15. The verdict of Supreme Court in U.P.Awas Evam Vikas Parishad vs. Gyan Devi (dead) by LRs. And others, (supra) has also been referred and relied upon in National Aluminium Co. ltd. vs. Raj Kishore alias Sahu Jena and another, (1996)3 SCC 44, Modi Spinning & Weaving Mills v. Virendra and others,(1998)5 SCC 718, Abdul Rasak and others v. Kerala Water Authority and others, (2002)3 SCC 228, Kanak (Smt.) and another v. U.P.Avas Evam Vikas Parishad and others, 12 (2003)7 SCC 693 as well as Regional Medical Research Centre, Tribals v. Gokaran and others,(2004)13 SCC 125. 16. In Modi Spinning & Weaving Mills (supra) the Hon’ble Supreme Court has observed that the Company for whose benefit land has been acquired is competent to file appeal under Section 54 of L.A. Act after obtaining leave of the court if no appeal has been preferred by the State Government. In Abdul Rasak and others v. Kerala Water Authority and others, (supra) the Hon’ble Court has observed that Kerala water authority is a proper party and is entitled to be impleaded in the proceedings before the reference court. In Kanak (Smt.) and another v. U.P.Avas Evam Vikas Parishad and others,(supra) the Supreme Court has held that local authority for whose benefit land is acquired or who is responsible for payment of