Case: Smt. Kanak and Anr Vs. U.P. Avas Evam Vikas Parishad and Ors

2. The respondent herein is a statutory body created under the provisions of Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 (hereinafter referred to as the 1965 Adhiniyam).3. Agra Nagar Mahapalika, a body constituted under Uttar Pradesh Municipal Corporations Adhiniyam, 1959 framed a housing scheme entitled "Ghatwasan Grah Isthan Evam Sarak Yojna". It issued a notification on 23.4.1960 under Section 357 of U.P Nagar Mahapalika Adhiniyam 1959 (hereinafter referred to as "Mahapalika Adhiniyam) which is equivalent to Section 4(1) of the Land Acquisition Act.4. A declaration purported to be in terms of Section 363 of the Mahapalika Adhiniyam which is in pari materia with Section 6 of the Land Acquisition Act was issued on 26.9.1964. The respondent - Parishad was constituted in terms of the 1965 Adhiniyam. After the respondent-Parishad came into being, an agreement was executed between the Mahapalika and the Parishad to transfer the execution of the said scheme in terms of Section 47 of the 1965 Adhiniyam. In furtherance of the aforementioned notification under Section 357 and a declaration under Section 363 of the Mahapalika Adhiniyam, the Special Land Acquisition Officer (SLAO) took possession of the land sought to be acquired on or about 18.6.1971. An award in relation thereto upon assessing the market value thereof was made by the SLAO on or about 24.11.1972 at the rate of Rs. 1.34 per square yard. Allegedly, in his award it was held that the acquired land was surrounded by various colonies and localities and was of full building potentiality. Within the determined amount of Rs. 89,914.24, a sum of Rs. 33,573.48 was paid to the owners of the land but payment in relation to the rest thereof, namely, Rs. 56,340.76 was withheld having regard to the dispute of title in relation thereto. The owners of the land purported to be aggrieved by and dissatisfied with the quantum of compensation awarded by the SLAO moved an application for reference before the Collector, Agra on 1.1.1973. But no reference was made for a period of eight years. Several registered deeds of sale, however, were executed by the owners in favour of several persons assigning their compensation rights. The said assignees are presently represented by the appellants.5. Allegedly, the Tribunal constituted for adjudicating on the reference assessed the market value of the land at the rate of Rs. 12/- per square yard by reason of two awards in relation to some other lands; one of which is said to have been accepted by the State. According to the appellants, having regard to the fact that the land in question was contiguous to the lands which were the subject matter of reference, the Tribunal also made an award on 24.5.1993 assessing the market value at the rate of Rs. 12/- per square yard keeping in view the exemplar-Award. Other statutory benefits in terms of the Land Acquisition (Amendment) Act, 1984 were also granted. The Tribunal furthermore awarded damages in terms of Section 48A of the Act.6. The respondent-Parishad preferred an appeal thereagainst before the High Court purported to be in terms of Section 381 of the Mahapalika Adhiniyam. The said appeal, however, was barred by 100-days. No pre-deposit was also made in terms of Sub-Section (3) of Section 381 of the Mahapalika Adhiniyam nor any fitness certificate to prefer an appeal in terms of Sub-section (1) of Section 381 thereof was granted. Despite the said defect, however, by an order dated 10th September, 1994 the High Court admitted the appeal without granting special leave and passed the followingnotice on the question of limitation, call for record. Put for hearing after receipt of record as the land acquired in 1964. Learned counsel for the claimants entered appearance. He may file counter affidavit to the application u/s 5 of Limitation Act. Learned Counsel for the appellant has served the memo of appeal and the copy of award on leaned standing counsel for respondent nos. 3 and 4. The notice is treated sufficient.During pendency of the said appeal, the Parishad also filed a writ petition against the award dated 24.5.1993 inter alia alleging therein that the condition of pre-deposit was onerous.8. The appellants herein, however, moved an application for dismissal of the appeal for alleged non-compliance of the mandatory provisions of Section 381 of the Mahapalika Adhiniyam. In the Counter-Affidavit to the Writ Petition filed by them also, the maintainability of the said appeal was came to be questioned.9. The First Appeal as also the writ petition were heard analogously and by reason of a composite judgment dated 20.5.1998 the High Court, while dismissing the First Appeal holding that the appeal under Section 54 of the Land Acquisition Act was not maintainable as the respondent did not comply with the conditions under Section 381 of the Mahapalika Adhiniyam; held that the Writ Petition was maintainable. It wasappeal already filed by the Parishad is not maintainable and so the Parishad cannot be debarred from filing writ petition.The alternative remedy of Appeal under the Nagar Mahapalika Adhiniyam is onerous.Since no formal notice has been served on the Parishad, as per UPAEVP vs. Gyan Devi, AIR 1995 SC 724 , the writ petition under Article 226, iswrit petition has been filed to avoid any controvery as to maintainability of its appeal without deposit, which was not clear.In the Writ Petition, the High Court decided the case on merits as a resultThe market value determined by the Tribunal was reduced;(ii) The statutory and consequential benefits of 1967 Act and 1984 Act were denied;(iii) The claim of solatium was disallowed;(iv) Damages under Section 48A of the Land Acquisition Act were rejected.Whereas the claimants had filed the appeal against the judgment of the High Court from the writ petition, the Parishad had filed the appeal against the dismissal of the first

Reasoning: 37. Where an appeal has not been filed by the State, it was held that such an appeal would be maintainable with the leave of the Court. However, in Gyan Devi (supra) this Court did not have any occasion to consider a provision like one contained in Section 381 of the Mahapalika Adhiniyam and, thus, the observations of the Court therein would not be relevant for the purpose of the present case. The High Court, having regard to the facts and circumstances of this case cannot be said to have committed any illegality in allowing the writ petition.38. However, having said so, in our opinion, the High Court should have remitted the matter back to the reference court with a direction that the respondent-Parishad may be impleaded as a party so as to enable it to cross-examine the witnesses examined on behalf of the claimants and examine its own witnesses and bring on records such other materials as it may seem fit and proper. It goes without saying it would also be open to the claimants to adduce evidence contra.