IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.207 of 2010 1. THE STATE OF BIHAR. 2. The Principal Secretary, Department of Disaster Management, Government of Bihar, Patna. 3. Director, Land Acquisition, Government of Bihar, Patna. 4. The Commissioner, Munger Division, Munger. 5. District Magistrate, Khagaria. 6. District Land Acquisition Officer, Khagaria. 7. The Circle Officer, Parbatta, Khagaria. ………..Respondents- Appellants Versus Kamaldeo Narayan Singh, Son of Late Ram Lal Singh, resident of Village & P.O. Parbatta, District- Khagaria. ……….Petitioner- Respondent. ----------- For the Appellants :- M/S Lalit Kishore, AAG- I and Piyush Lall, A.C. to A.A.G.-3. For the Respondent:- M/S Ashutosh Pandey, Adv. & Rakesh Narayan Singh, Adv. ------------ 11 01.04.2011 The present Letters Patent Appeal is filed against the order dated 30.07.2009 passed by the learned Single Judge in C.W.J.C. No. 6689 of 2009 in the writ application, whereby the learned Single Judge has allowed the C.W.J.C. with a direction to the respondents- appellants hereinto accept the affidavit, if any, filed by the petitioner within a period of one month so that he may be paid 60% solatium. The respondents being the appellants herein has chosen to question the direction of the learned Single Judge stating that the present appellants in not seeking - 2 - any relief with regard to referring the matter under Section 18 of the Land Acquisition Act (hereinafter referred to as the Act) on the basis of the application which was made on 05.05.2008. However, the appellants herein have not acted upon such application for making a reference to the Civil Court under Section 18 of the Act. The above writ petitioner was contested by the counsel for the respondents, appellants herein stating that no such application has been received by the concerned officials under the Land Acquisition Act within a period of six weeks as required under Land Acquisition Act and the receipt of the application itself is denied in the counter affidavit. However the learned Single Judge after having heard both the sides directed the State Government to accept the affidavits file within one month and also directs the respondent to pay 60% of solatium as he was willing for acquisition of the lands. Aggrieved by the same the present appeal has been filed. Learned Senior Counsel Mr. Lalit Kishore has argued that after initiation of the Land Acquisition proceeding dated 26.03.2008 notice was issued to the - 3 - parties on 27.03.2008 and thereafter final payment of compensation including all the benefits have been paid on 29.04.2008. It has also further contended before this Court that, if any, contentions sought to be raised by the petitioner, respondents herein stating that he has made an application 05.05.2008 to the District Magistrate, Khagaria for referring the matter to the Civil Court, under Section 18 of the Act, the said application has not been received in the office, but however the learned Single Judge has directed the State Government to refer the matter to the Civil Court for reference under Section 18 of the Act with a direction to pay 60% of solatium if he was willing to acquisition of his land. The learned Senior Counsel has further contended that so far as the payment of 60% solatium is concerned, the fact remains that such payment would be applicable only on the person who are willing to part away his land under Section 4(1) of the Act but in this case there is no such willingness and hence the question would not arise with regard to payment of 60% solatium. The respondent counsel could not produce the receipt containing postal stamp as also the copy of the - 4 - application dated 05.05.2008 and a copy of the notice issued on 05.05.2008 by which the District Magistrate, Khagaria was willingness to request the concerned officer to refer the matter under Section 18 of the Act. Under the above circumstances we are of the opinion that as the original receipt dated 05.05.2008 is not produced before the Court on the basis of which it has to be believed that the respondent has made an application within a period of six weeks from the date of the award dated 26.03.2008 and it is within limitation period as prescribed under the provisions of the Act and hence a notice was issued by the District Magistrate, Khagaria to refer the matter to the appropriate Civil Court, under Section 18 of the Act. Under the above circumstances we are agreeing with the opinion expressed by the learned Single Judge on the findings of the reference that the matter is referred to the Civil Court, under Section 18 of the Act, deeming that the application has been made by the respondents for reference on 05.05.2008 itself, which is within the period of limitation as required under the Act. But however with regard to payment of 60% solatium is concerned, as there - 5 - was no material placed by the respondent counsel before this Court with regard to filing of the affidavit after issuance of notice under Section 4(1) of the Act expressing his willingness for acquisition of land, we are of the opinion that the learned Single Judge has committed an error in directing the State Government to pay 60% solatium after accepting the affidavit, if any, filed by the petitioner, respondent herein. However as there is no material placed before this Court to the effect that the respondent has submitted affidavit within the prescribed period. We are of the opinion that the findings of the learned Single Judge with regard to direction issued to the State Government to pay 60% Solatium cannot be substituted and hence such findings is set aside. However we make it clear that the respondent will be at liberty to agitate his all rights including payment of solatium, as required under the provisions of the Act, before the competent Civil Court. We also further direct the District Magistrate, Khagaria to refer the matter to the appropriate Civil Court under Section 18 of the Act taking note of the fact that the application - 6 - dated 05.05.2008 has been made within the prescribed period of six weeks from the date of award dated 26.03.2008. we also direct the appropriate Civil Court to dispose of such reference taking note of the fact that the respondent is more than 80 years old and also a senior citizen, and the same shall be disposed of as expeditiously as possible in accordance with law. In the particular circumstances of the case liberty is also granted to the respondent to submit a fresh application before the District Magistrate, Khgaria for reference under Section 18 of the Act and also a copy of the application dated 05.05.2008. It is also further directed that the respondent will also file a copy of the application dated 05.05.2008 before the District Magistrate, Khagaria and the said officer is directed to accept the same, if it is filed. With the above modification in the order of the learned Single Judge, this appeal is allowed. Bhardwaj/Ibrar (T. Meena Kumari, J.) (Akhilesh Chandra, J.)