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PRAHLAD MANI TRIPATHI versus UNION OF INDIA & OTHERS

High Court of Judicature at Allahabad

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Prahlad Mani Tripathi v. Union Of India & Others - WRIT - C No. 53240 of 1999 [2007] RD-AH 9530 (18 May 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.2

Civil Misc. Writ Petition No.53240 of 1999

Prahlad Mani Tripathi v. Union of India through its Secretary Ministry of Post and Telegraph and Telecommunication, New Delhi and others.

Connected with

Civil Misc. Writ Petition No.4938 of 2007

Bharat Sanchar Nigam Limited and another v. State of U.P. and others.

*****

Hon'ble R.K.Agrawal, J.

Hon'ble Bharati Sapru, J.

(Per R.K.Agrawal, J.)

Civil Misc. Writ Petition No.53240 of 1999 has been filed by Prahlad Mani Tripathi seeking a writ, order or direction in the nature of mandamus commanding the respondents to pay the compensation to the petitioner along with interest and solatium forthwith. The facts giving rise to the aforesaid writ petition are that the petitioner is the sole tenant of .30 decimal in plot no.660 and .18 decimal in plot no.662 and joint tenant of .31 decimal in plot no.661 and .26 decimal in plot no.663 along with his brother Ram Naresh Mani Tripathi situate in Bharouli Bazar, district Deoria. The land is situate adjacent to the Deoria Gorakhpur Main Road and is also near the main market of the Deoria City.

The Post and Telegraph Department of the Government of India wanted to establish Microwave Radio Relay station in district Deoria and for that purpose the land in question was acquired under the provisions of the Land Acquisition Act, 1894, hereinafter referred to as 'the Act', and  a notification under Section 4 was published on 16th July, 1981.The provisions of Section 5-A of the Act were dispensed with and Notification under Section 6 was issued on 20th July, 1981. The possession was taken over on 3rd December, 1981. The petitioner's brother Ram Naresh Mani Tripathi had challenged the acquisition proceedings by means of Civil Misc. Writ Petition No.1639 of 1981 in which an interim order was passed by this Court dated 11th February, 1982 to the effect that the petitioner therein would not be dispossessed from the land in question if he had not already been dispossessed.  The petition was ultimately dismissed on 3rd January, 1991 for want of prosecution and the interim order was discharged. It has been stated by Sri Rajeev Mishra, learned counsel for the petitioner that the application seeking restoration of the said writ petition has also been dismissed. The acquisition proceedings, therefore, have become final. According to the petitioner, he personally met the Collector, Deoria, Special Land Acquisition Officer, Deoria and the District Manager(Telephones), Mau enquiring about the payment of compensation. He made a representation dated 8th May, 1997 before the Collector, Deoria, which was followed by reminders dated 13th October, 1997 and 17th August, 1998 and when no action was being taken, the petitioner had to approach this Court by means of the present writ petition.

The aforesaid writ petition came up for admission before this Court on 4th January, 2000 when the Division Bench after noticing the fact that the land has been acquired without payment of compensation passed the following order:

"4.1.2000

Hon'ble Palok Basu, J.

Hon'ble U.S. Tripathi, J.

It is one of the strange cases where the land of the citizen has been acquired without payment of compensation, if the facts stated in the writ petition are correct.

It is admitted to the petitioner that his land was acquired vide Notification u/s 4 and 6 of the Land Acquisition Act dated 16.7.81 and 20.7.81 dispensing with 5-A of the Act by applying 17(1) of the Act. Petitioner's earlier writ petition challenging the said notification stands dismissed on 2.1.91. He has been writing letters, making representations claiming compensation with no success, hence the petition.

Issue notice to respondents to show cause why the petition be not admitted/allowed with special costs. Shri N.K. Chatterji for the Union of India and Shri Devi Prasad Mishra Standing Counsel for the State of U.P. are allowed one month each to file counter affidavit. Rejoinder Affidavit may be filed by Shri Rajiv Mishra within one week thereafter and the writ petition shall be listed for disposal in the week commencing 14.2.2000.

Notwithstanding the pendency of this writ petition the petitioner shall be entitled to make fresh representation along with copy of this order which shall be decided independently by the District Magistrate/Land Acquisition Officer is accordance with law releasing at least 80 per cent of the compensation by the time the writ petition matures for hearing as indicated above, provided the facts alleged in the writ petition are correct in so far as the dates of the notification and non-payment of the compensation are concerned.

Copy be furnished within 24 hours on payment of usual charges."

On 12th December, 2006 the Division Bench of this Court had passed a detailed order directing the District Collector, Deoria as well as the Land Acquisition Officer, Deoria to make the award and pay the compensation in case it had not already been made within a period of ten weeks from the date of the order and in case such an award was not made, both the Officers i.e. District Collector, Deoria and the Land Acquisition Officer would remain present before this Court along with the entire record of the case on the next date of listing i.e. 27th February, 2007.

On 27th February, 2007 it was stated before the Court that the award had been made on 15th January, 2007.  However, the payment has not been made as the amount is to be recovered from the Bharat Sanchar Nigam Ltd. for whose benefit the land in question was acquired.

Civil Misc. Writ Petition No.4938 of 2007 has been filed by the  Bharat Sanchar Nigam Ltd., hereinafter referred to as 'the Nigam',  challenging the recovery of Rs.12,89,036/- being the balance amount payable under the award. The writ petition has been filed on the ground that the petitioner's predecessor in interest had already deposited a sum of Rs.3,35,930/- on 6th May, 1981, which is the amount estimated by the District Magistrate,Deoria towards the value of the said land including the acquisition charges.

We have heard Sri Rajeev Mishra, learned counsel for the petitioner-Prahlad Mani Triapthi, Sri Subodh Kumar, learned counsel appearing for the petitioner -the Nigam and Sri A.C. Tripathi, learned Standing Counsel appearing for the State respondents in both the writ petitions.

Sri Rajeev Mishra learned counsel for the petitioner submitted that the petitioner is entitled for the compensation awarded pursuant to the award made  on 15th January, 2007 as he had been dispossessed from the land in question as far back as 3rd December, 1981 and he has been deprived of the fruits of the same for a pretty long period of about 26 years.

Sri Subodh Kumar, learned counsel appearing for the Nigam submitted that the Nigam  having been deposited Rs.3,35,930/- as far back as on 6th May, 1981 pursuant to the letter dated 17th March, 1981 sent by the District Magistrate, Deoria estimating the value of the land and acquisition charges, it cannot be saddled with the liability for payment of any further amount. In any event he submitted that there is no liability for payment of any additional compensation, solatium and interest.   He further submitted that the petitioner's brother, namely, Ram Naresh Mani Tripathi, having challenged the acquisition proceedings, which petition has been dismissed, the present petition filed by Prahlad Mani Tripathi is not maintainable. According to him, as the land was acquired in the year 1981, the provisions of sub-sections (1-A) and (2) of Section 23 of the Act  relating to grant of solatium is not applicable. He further submitted that the Special Land Acquisition Officer had not given any notice nor any opportunity of hearing to the Nigam before making the award. In support of his submission he has relied upon a decision of the Apex Court in the case of U.P. Awas Evam Vikas Parishad v. Gyan Devi(dead) by LRs. And others, (1995) 2 SCC 326. He further submitted that the amendment made in the Act by Act No.68 of 1984 w.e.f. 24th September, 1984  is prospective in nature as held by the Apex Court in the case of  Land Acquisition Officer-cum-DSWO, A.P. v. B.V. Reddy and sons, (2002)3 SCC 463.

Sri A.C. Tripathi, learned Standing Counsel, submitted that under sub-section (3-A) of Section 17 of the Act, the Collector is required to tender payment of eighty per cent of the compensation  for such land as estimated by him to the persons interested entitled thereto.  The interest awarded under Section 34 of the Act would start running only where the amount of compensation is not paid or deposited before taking over the possession of the land and in the present case as the award was made in the year 2007, the question of depositing compensation or making payment of it did not arise before that date and, therefore, there is no liability for payment of interest as awarded by the Land Acquisition Officer.

Sri Rajeev Mishra, learned counsel appearing for the petitioner-Prahlad Mani Tripathi,  relied upon a Constitution Bench decision of the Apex Court in the case of Union of India and another v. Raghubir Singh(dead) by LRs. etc., (1989) 2 SCC 754, wherein it has been held that solatium at the rate of 30% is payable if the award has not been made before 30th April, 1982. He, thus, submitted as in the present case the award has been made only on 15th January, 2007, the solatium at the rate of 30%  and additional compensation has rightly been allowed.

We have given our anxious consideration to the various pleas raised by the learned counsel for the parties. Taking the plea of Sri Subodh Kumar, learned counsel for the Nigam, that prior to making of the award by the Land Acquisition Officer, a notice ought to have been given to the Nigam in the light of the decision of the Apex Court in the case of  Gyan Devi(dead) by LRs and others(supra), we may mention here that there is no dispute regarding the valuation of the acquired land for which compensation was payable in respect of which notice had to be given to the Nigam.  Except raising a legal plea regarding the applicability of sub-sections (1-A) and (2) of Section 23 and Section 34 of the Act, Sri Subodh Kumar, learned counsel for the Nigam, did not raise any dispute regarding the valuation of the land. Since we are examining the issue of applicability of sub-sections (1-A) and (2) of Section 23 of the Act as also Section 34 of the Act in the present proceedings, setting aside the award, which has been made after 26 years and that too when this Court had directed the Collector and the Special Land Acquisition Officer vide order dated 12th December, 2006, would operate harshly on the land owners whose land has been acquired without payment of any compensation. We, therefore, are not inclined to set aside the award on the ground that the notice was not given to the Nigam before making of the award.

So far as the maintainability of the writ petition at the instance of Prahlad Mani Tripathi taking into consideration the factum of the dismissal of earlier writ petition filed by his brother Sri Ram Naresh Mani Tripathi is concerned, we find that the present petitioner was not a party in the earlier writ petition nor there is anything on record to suggest that it had been filed at his instance. Moreover in the earlier writ petition acquisition proceedings under the Act have been challenged whereas in the present petition a direction has been sought for payment of compensation due under the Act. The reliefs claimed in the two petitions are entirely different. Thus the present petition is maintainable. Coming to the merits of the case, we find that the Nigam has not challenged the determination of the market value of the land in question. A passing reference has been made by Sri Subodh Kumar regarding the applicability of belting system  in determining the market value of the land. It may be mentioned here that the land acquired is approximately one acre, which cannot be said to be a very large area, therefore the belting system would not be applicable.

The Apex Court in the Constitution Bench decision in the case of Raghubir Singh (dead) by LRs. and others (supra) has held that the amendments made in the Act by  the Land Acquisition (Amendment) Act, 1984 would be applicable to all the awards made on or after 30th April, 1982. As in the present case the award has been made only on 15th January, 2007, the provisions of sub-sections (1-A) and (2) of Section 23 would be attracted and, therefore, additional compensation, which has been awarded from the date of the notification under Section 4 of the Act till the date of taking over possession of the land as also solatium at the rate of 30% cannot be faulted.  It may be mentioned here that there is no dispute on the quantum of additional compensation or solatium awarded by the Special Land Acquisition Officer.

Coming to the question of grant of interest under Section 34 of the Act, we may mention here that the claimants are entitled for the interest at the rate of 9% under Section 34 of the Act. The Special Land Acquisition Officer has excluded the period from the date of interim order dated 11th February, 1982 passed in Civil Misc. Writ Petition No.1639 of 1981 till its dismissal. The claimants are, therefore, entitled to the interest for the remaining period.  The question is as to whether the Nigam is liable to pay the amount of interest awarded by the Special Land Acquisition Officer on the entire amount or only solatium and additional compensation and the difference in the value of the land etc., specially when it had deposited Rs.3,35,930/- before the issuance of the notification under Section 4 of the Act. The interest under Section 34 of the Act is awarded to compensate the claimants for the loss which they are likely to suffer for being deprived of their land. In the present case as the Nigam had already deposited Rs.3,35,930/- towards the value of the land and the acquisition charges, the Nigam cannot be saddled with the payment of interest to the extent of the value of the land which it had already deposited. However, it would be liable to pay the interest on difference amount, additional compensation and solatium. This would not mean that the State-respondents have been absolved from making payment of interest awarded by the Land Acquisition Officer. The balance amount of interest which the Nigam is not liable to pay shall be paid over by the State-respondents.

As more than 26 years have passed and the claimants have not been paid the compensation by the State Government, the Collector, Deoria is directed to pay the entire amount under the award within one month from the date a certified copy of this order is filed before him, which shall not be dependant whether the amount has been realised from the Nigam or not. Any amount in terms of this judgement which  the Nigam is liable to pay shall be paid by it within thirty days from today.

In view of the foregoing discussion, Civil Misc. Writ Petition No.53240 of 1999 succeeds and is allowed with costs which we assess at Rs.10000/- payable by the respondent nos. 2 and 3 and Civil Misc. Writ Petition No.4938 of 2007 succeeds and is allowed in part.  The recovery certificate stands set aside.

16.5.2007

mt


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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