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UNION OF INDIA DIESEL LOCOMOTIVE WORKS THRU' G.M. versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Union Of India Diesel Locomotive Works Thru' G.M. v. State Of U.P. & Others - WRIT - C No. 5734 of 2002 [2007] RD-AH 5550 (28 March 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

       Court No. 23

      Civil Misc. ( Conversion of the Writ Petition into Appeal under Section 54 of the Land Acquisition Act) Application No. 193281 of 2002

Union of India , Diesel Locomotive Works,

through its Executive Engineer, Varanasi  ................Applicant

In

         Civil Misc. Writ Petition No. 5734 of 2002

Union of India , Diesel Locomotive Works, Varanasi

through its General Manager    ...........................Petitioner

Vs.

State of U.P. through Collector, Varanasi

and others .........................Respondents

Hon. S.P. Mehrotra, J.

The aforementioned Application, namely,Civil Misc. ( Conversion of the Writ Petition into Appeal under Section 54 of the Land Acquisition Act) Application No. 193281 of 2002 , has been filed on behalf of the petitioner ( Union of India , Diesel Locomotive Works, Varanasi, through its General Manager) in the aforementioned Writ Petition. The petitioner has filed the aforesaid Writ Petition,  interalia, seeking quashing of the judgement and order/award  dated 26.11.1994 ( Annexure No. 1 to the Writ Petition ) passed by the

learned IInd Additional District Judge , Varanasi on a reference made under Section 18 of the Land Acquisition Act, 1894.

In view of the provisions of Section 26 of the Land Acquisition Act, 1894, the said judgement and order /award dated 26.11.1994 amounts to  decree within the meaning of clause (2) of Section 2 of the Code  of Civil procedure.

Section 54 of the Land Acquisition Act, 1894, interalia, lays down that an Appeal shall lie to the High Court from an award given by the Court under Section 26 of the Land Acquisition Act, 1894 on a reference made under Section 18 of the said Act.

It is , interalia, stated in paragraph no. 8 of the Writ Petition that the Diesel Locomotive Works, Varanasi is liable to pay compensation for the land in dispute and was the person interested, and it  should have been made a party in the proceedings under Section 18 of the Land Acquisition Act, 1894; and that the petitioner had no knowledge of the proceedings under Section 18 of the Land Acquisition Act, 1894 before the respondent no.3( IInd Additional District Judge, Varanasi).

The aforementioned Civil Misc. ( Conversion of the Writ Petition into Appeal under Section 54 of the Land Acquisition Act) Application No. 193281 of 2002, has been filed on behalf of the petitioner ( Union of India, Diesel Locomotive Works, Varanasi through its General Manager), interalia, praying that the petitioner be permitted to convert the present Writ Petition into a First Appeal under Section 54 of the Land Acquisition Act, 1894.

I have heard Sri Tarun Verma, learned counsel for the petitioner, and perused the record.

It is submitted by  Sri Tarun Verma, learned counsel for the petitioner that in a similar matter, this Court directed for conversion of the Writ Petition filed by the petitioner herein into an Appeal under Section 54 of the Land Acquisition Act, 1894.

Sri Tarun Verma, learned counsel for the petitioner has further referred to an order dated 7.7.2003 passed by this Court in Civil Misc. Writ Petition No. 2851 of 1999 ( Union of India , Diesel Locomotive Works, Varanasi through its General Manager Vs. State of U.P. and others ) and the connected matters.

Copy of the said order dated 7.7.2003 passed in the aforementioned Civil Misc. Writ Petition No. 2851 of 1999 and the connected matters, has been filed as Annexure No. 1 to the Affidavit accompanying Civil Misc. Application No. 126865 of 2003 filed in the aforementioned  Civil Misc. Writ Petition No. 2851 of 1999 converted into First Appeal No. 474 of 2004, the record whereof , has been placed before this Court pursuant to the order dated 20.3.2007.

Sri Tarun Verma, learned counsel for the petitioner has further relied upon a decision of the Supreme Court in U.P. Awas Evam Vikas Parishad  Vs.Gyan Devi ( Dead) by legal representatives AIR 1995 Supreme Court 724, wherein their Lordships of the Supreme Court have opined as follows (Paragraph Nos. 21,22,23,24 and 25 of the said A.I.R.):-

"21. In a case where no notice is given to the local authority the position of the local authority is not different from that of the Municipal Corporation in Neelagangabai Vs. State of Karnartaka ( AIR 1990 SC 1321) (Supra ). In that case there was an express provision in S.20 of L.A. Act as modified by Land Acquisition ( Mysore Extension Amendment ) Act, 1961 providing for service of notice on the person or local authority for whom the acquisition is made. On a construction of S. 50(2) we have found that service of such a notice is implicit in the right conferred under S. 50(2) of the L.A. Act. Since the failure to give a notice would result in denial of the right conferred on the local authority under S. 50(2) it would be open to the local authority to invoke the jurisdiction of the High Court under Article 226 of the Constitution to challenge the award made by the Collector as was done in Neelgangabai case ( supra).  In a case where  notice has been served on the local authority and it has appeared before the Collector the local authority may feel aggrieved on account of it being denied opportunity to adduce evidence or the evidence adduced by it having not been considered by the Collector while making the award or the award being vitiated by malafides. Since the amount of the compensation is to be paid by the local authority and it has an interest in the determination of the said amount , which has been given recognition in S. 50(2) of the L.A. Act, the local authority would be a person aggrieved who can invoke the jurisdiction of the High Court under Art.226 of the Constitution to assail the award in spite of the proviso precluding the local authority from seeking a reference . Such a challenge will, however, be limited to the grounds on which judicial review is permissible under Art. 226 of the Constitution . In a case where the local authority has failed to appear in spite of service of notice the local authority can have no cause for grievance. Even in such a case it may be permissible for the local authority to invoke the jurisdiction of the High Court under Art.226 of the Constitution to assail the award if it  is vitiated by malafides or is perverse.

     22. We may now come to the stage of the proceedings before the Court in a reference under S. 18 of the L.A . Act made at the instance of a person having interest in the land being acquired. At this stage also S. 50(2) of the L.A Act envisages that the local authority has a right to appear and adduce evidence before the Court. This right is independent of the right that is available to the local authority to appear and adduce evidence before the Collector. Even though the local authority had failed to appear before the Collector in spite  of notice or had appeared in response to notice and had adduced evidence the local authority may consider it necessary to adduce evidence to rebut the evidence adduced by the person who has sought the reference and to defend the award made by the Collector. Failure to give notice at this stage would result in denial of the said right of the local authority . Before we consider the remedy that is available for seeking redress against the denial of this right we may examine whether the local authority has  a right to be impleaded as a party in the proceedings before the reference Court. That raises the question whether the local authority can be regarded as a necessary or a proper party. 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  Vs. Addl. Member , Board of Revenue , 1963 Supp (1) SCR 676, at page 681 : ( AIR 1963 SC 786 at page 788)) . 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 compensation sought before the reference Court by the person interested in 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.

23.   In case the amount of compensation has been enhanced by the Court and no appeal is filed by the Government the local authority if adversely affected by such enhancement may file an appeal with the leave of the Court. This right of the local authority does not depend on its being impleaded as a party in the proceedings before the reference Court . Even if the local authority is not impleaded as a party before the reference Court it can file an appeal against the award of the reference Court in the High Court after obtaining leave if it is prejudicialy affected by the award. In case the Government files an appeal against the enhancement of the award the local authority is entitled to support the said appeal and get itself impleaded as a party. When the person having an interest in the land files an appeal in the High Court against the award of the reference Court and seeks enhancement of the amount of compensation the local authority should be impleaded as a party in the said appeal and it is entitled to be served the notice of the said appeal so that it can defend the award of the reference Court and oppose enhancement of the amount of  compensation before the High Court. The same will be the situation in case of an appeal to this Court from the decision of the High Court.

24.Under S. 50(2) of the L.A. Act  the company for whom land is being acquired is also entitled to appear and adduce evidence for the purpose of determining the compensation. Since the company for whom land is acquired stands on the same footing as a local authority whatever has been said with regard to a local authority would apply to a company. It is, however, made clear that matters which stand finally concluded will not be re-opened.

25.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 of the date on which the matter of determination of compensation will be taken up.

3.The proviso to S. 50(2) only prelcudes 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 Art. 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 S. 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 Art. 226 of the Constitution.

5.Even when  notice has been served on the local authority the remedy under Art. 226 of the Constitution would be available to the local authority on grounds on which judicial review is permissible under Art. 226.

6.The local authority is a proper party in the proceedings before the 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 S. 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."

Sri Tarun Verma,learned counsel for the petitioner has further referred to a decision in M/s. Neyvely Lignite Corporation Ltd Vs. Special Tehasildar ( Land Acquisition ) , Neyvely and others, AIR 1995 Supreme Court  1004, wherein their Lordships of the Supreme Court  have laid down as follows ( Paragraphs Nos .11, 13 and 14 of the said A.I.R.):-

"11. It is true that Section 50(2) of the Act gives to the local authority or the company right to adduce evidence before the Collector or in the reference under Section 18 as it was specifically stated that in any proceedings held before the Collector or the Court, the local authority or the company may appear and adduce evidence for the purpose of determining the amount of compensation . However, it has no right to seek reference. Based thereon, the contention is that the limited right of abduction of evidence for the purpose of determining the compensation does not carry with it the right to participate in the proceedings or right to be heard or to file an appeal under Section 54 . We cannot limit the operation of Section 3(b) in conjunction with sub-section (2) of Section 50 of the Act within a narrow compass. The right given under sub-section (2) of Section 50 is in addition to and not in substituting of or in derogation to all the incidental , logical and consequential rights flowing from the concept of fair and just procedure consistent with the principles of natural justice. The consistent thread that runs through all the decisions of this Court starting from Himalayan Tiles case, ( AIR 1980 SC 1118) , is that the beneficiary, i.e., local authority or company , a co-op. society registered under the relevant State Law ,or statutory authority is a person interested to determine just and proper compensation for the acquired land and is an aggrieved person. It flows from it that the beneficiary has the right to be heard by the Collector or the Court. If the compensation is enhanced it is entitled to canvass its correctness by filing an appeal or defend the award of the Collector. If it is not made a party, it is entitled to seek leave of the Court and file the appeal against the enhanced award and decree of the Civil Court under Section 26 or of the judgement and decree under Section 54 or is entitled to file writ petition under Art. 226  and assail its legality or correctness . When the award made under Section 11 of the Collector is vitiated by fraud , collusion or corruption, the beneficiary is entitled to challenge it in the writ petition apart from the settled law that the conduct of the Collector or Civil Judge is amenable to disciplinary enquiry and appropriate action. These are very valuable and salutary rights . Moreover in the language of Order 1 Rule 10 C.P. C, in the absence of the beneficiary who ultimately is to bear the higher compensation, no complete and effectual determination of binding just and proper compensation to the acquired land would be made. So it is concomitantly a proper party if not a necessary party to the proceedings under Order 1, Rule 10 CPC. The denial of the right to a person interested is in negation of fair and just procedure offending Art. 14 of the Constitution.

   13.   If there is no right of hearing or appeal given to the beneficiary and if the State does not file the appeal or if filed with delay and it was dismissed, is it not the beneficiary who undoubtedly bears the burden of the compensation, would be  the affected person? Is it not interested to see that the appellate Court would reassess the evidence and fix the proper and just compensation as per law? For instance the reference Court determined market value at Rs. 1,00,000/- while the prevailing market value of the land is only Rs. 10,000/- . Who is to bear the burden? Suppose State appeal was dismissed due to refusal to condone the delay, is it not an unjust and illegal award? Many an instance can be multiplied. But suffice it to state that when the beneficiary for whose benefit the land is acquired is served with the notice and brought on record at the stage of enquiry by the Collector and reference Court  under Section 18 or in an appeal under Section 54 , it /they would be interested to defend the award under Section 11 or 26 or would file an appeal independently under Section 54 etc. against the enhanced compensation. As a necessary or proper party affected by the determination of higher compensation, the beneficiary must have a right to challenge the correctness of the award made by the Reference Court under Section 18 or in appeal under Section 54 etc. Considered from this perspective we are of the considered view that the appellant -company is an interested person within the meaning of Section 3(b) of the Act and is also a proper party, if not a necessary party under Order 1, Rule 10 of the C.P.C. The High Court  had committed manifest error of law in holding that the appellant is not a person interested. The orders of the High Court are accordingly set aside.

14.Since the writ petitions filed by the appellants were dismissed, we set aside the orders and direct the High Court to treat them as appeals properly filed under Section 54 of the Act and be dealt with along with the appeals filed by the State pending disposal in the High Court . In the pending references under Section 18, in the Court of the Subordinate Judge, Cuddalore , it is directed to order impleading the appellant as a party -respondent and would give reasonable opportunity to cross-examine the witness examined by the claimants and to examine witnesses on its behalf to rebut the evidence for higher compensation, the appellant is entitled to be heard in support of the determination of just and proper compensation .In this view, the need to implead the appellant as a party -respondent in the pending appeals in the High Court does not arise".

Sri Tarun Verma,learned counsel for the petitioner submits that in view of the above decisions, the aforementioned Application, filed on behalf of the petitioner, for conversion of the Writ Petition into Appeal under Section 54 of the Land Acquisition Act, 1894, deserves to be allowed.

            I have  considered the submissions made by Sri Tarun Verma, learned counsel for the petitioner.

Section 18(1) the Land Acquisition Act, 1894, interalia, provides that " any person interested who has not accepted the award may", by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court.

Section 50 of the Land Acquisition Act, 1894 deals with the cases of acquisition of land at the cost of any fund controlled or managed by a local authority or of any Company.

   Sub-section (2) of Section 50 of the Land Acquisition Act, 1894 lays down that in  any proceeding held before a Collector or Court in such cases the local authority or Company concerned may appear and adduce evidence for the purpose of determining the amount of compensation.

However, proviso to sub-section (2) of Section 50 of the Land Acquisition Act, 1894 provides that no such local authority or Company shall be entitled to demand a reference under Section 18 of the Land Acquisition Act, 1894.  

In U.P. Awas Evam Vikas Parishad case ( supra ), their Lordships of the Supreme Court have laid down that proviso to sub-section (2) of Section 50 of the Land Acquisition Act, 1894 ,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 Land Acquisition Act, 1894 ( See Paragraph no. 25 of the said AIR).

Their Lordships of the Supreme Court have further held that the local authority is a proper party in the proceedings before the 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(See paragraph no.25 of the said AIR).

It is further held by their Lordships of the Supreme Court that 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( See Paragraph no. 25 of the said AIR).

In the present case, the land has been acquired for the purpose of the  Diesel Locomotive Works, Varanasi, and the amount of compensation is to be paid by the  Diesel Locomotive Works, Varanasi.

In view of above decision in U.P. Awas Evam Vikas Parishad case ( supra ), the  Diesel Locomotive Works, Varanasi, was entitled to file an appeal before this Court after obtaining leave of the Court challenging the said judgement and order/ award dated 26.11.1994.

In  M/s. Neyvely Lignite Corporation case ( supra ), their Lordships of the Supreme Court, as noted above , have held  as follows ( Paragraphs nos. 11 and 14 of the said AIR) :

"11.................... The consistent thread that runs through all the decisions of this Court starting from Himalayan Tiles case, ( AIR 1980 SC 1118) , is that the beneficiary, i.e., local authority or company , a co-op. society registered under the relevant State Law , or statutory authority is a person interested to determine just and proper compensation for the acquired land and is an aggrieved person. It flows from it that the beneficiary has the right to be heard by the Collector or the Court. If the compensation is enhanced it is entitled to canvass its correctness by filing an appeal or defend the award of the Collector. If it is not made a party, it is entitled to seek leave of the Court and file the appeal against the enhanced award and decree of the Civil Court under Section 26 or of the judgement and decree under Section 54 or is entitled to file writ petition under Art. 226  and assail its legality or correctness..............."

"14.   Since the writ petitions filed by the appellants were dismissed, we set aside the orders and direct the High Court to treat them as appeals properly filed under Section 54 of the Act and be dealt with along with the appeals filed by the State pending disposal in the High Court ................"

     It will , thus, be noticed that in M/s. Neyvely Lignite Corporation case ( supra ), their Lordships of the Supreme Court directed the High Court to treat the Writ Petition as appeal under Section 54 of the Land Acquisition Act, 1894.

In Civil Misc. Writ Petition No. 2851 of 1999, and the  connected matters , decided by this Court on 7.7.2003, this Court allowed the prayer of the petitioner herein to convert the said Writ Petitions into Appeals under Section 54 of the Land Acquisition Act, 1894.

Sri Tarun Verma, learned counsel for the petitioner refers to paragraph no.19 of the Writ Petition and submits that the said Writ Petition No.2851 of 1999 , and the connected matters,  were filed by the petitioner herein in respect of the same acquisition as is involved in the present Writ Petition.

In the said order dated 7.7.2003, this Court referred to  the decisions of the Supreme Court in Neelagangabai and another Vs. State of Karnartaka and others, AIR 1990 SC 1321 , and in M/s. Neyvely Lignite Corporation Ltd., Vs. Special Tehsildar ( Land Acquisition ) , Neyvely and others( supra )  and granted the prayer made by the petitioner herein to convert the aforesaid Writ Petitions into appeals under Section 54 of the Land Acquisition Act, 1894.

Having considered the submissions made by Sri Tarun Verma, learned counsel for the petitioner and having regard to the aforesaid decisions, I am of the opinion that the prayer made in the aforementioned Civil Misc. ( Conversion of the Writ Petition into Appeal under Section 54 of the Land Acquisition Act) Application No. 193281 of 2002 deserves to be granted.

Accordingly, the aforementioned Civil Misc. ( Conversion of the Writ Petition into Appeal under Section 54 of the Land Acquisition Act) Application No. 193281 of 2002  is allowed.

The petitioner is permitted to convert the present Writ Petition into First Appeal under Section 54 of the Land Acquisition Act, 1894.

The petitioner will take requisite steps for converting the present Writ Petition into First Appeal under Section 54 of the Land Acquisition Act, 1894 within six weeks of the receipt of a certified copy of this order, and payment of requisite  Court fee will also be made within the same period.

Thereafter, the case will be listed before the appropriate Bench after obtaining proper report of the Stamp Reporter.

28.3.2007/aks.


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