Jokhai Ram and Another vs State of U.P. and Another

By means of the present writ petition the petitioners seek a writ, order or direction in the nature of certiorari quashing the impugned order dated 14.6.2007 passed by the Collector/Special Land Acquisition Officer, Sant Ravidas Nagar Bhadohi, respondent no. 2, filed as Annexure no. 4 to the writ petition as also a writ, order in the nature of mandamus directing the said respondent to refer the application dated 8th March, 1989, filed as Annexure no. 2 to the writ petition to the District Judge, Bhadohi u/s 28A(3) of the Land Acquisition Act, 1894, hereinafter referred to as ''the Act'' to decide on merit.

Briefly stated the facts giving rise to this petition are as follows:

The petitioners'' land situate in Plot no. 80, having an area of 3 Biswa and Plot no. 70 having an area of 2 Biswa 6 dhoor, thus the total area 5 Biswa 6 dhoor, was acquired vide notification issued under Sections 4 and 6 of the Act dated 3rd April, 1982 for the construction of Bhadohi Bypass Road. The petitioner was given compensation by the Special Land Acquisition Officer, Sat Ravidas Nagar, Bhadohi. The petitioners did not go in reference. However, one Sri Lutful Haque whose Plot no. 24 area 8 Biswa 8 dhoor situate at village Rewera Paraspur, which was also acquired by the aforesaid notification dated 3rd April, 1982 for the same purpose of construction of Bhadohi Bypass Road challenged the award made by the respondent no. 2 by way of reference which was registered as Land Acquisition Reference no. 167 of 1987, Lutful Haque vs. Collector Varanasi and was allowed by the 9th Additional District Judge, Varanasi vide judgment and order dated 9th December, 1988. The compensation was enhanced. The petitioners moved an application on 8th March, 1989 u/s 28A(1) of the Act before the respondent no. 2 seeking benefit of the order dated 9th December, 1988 passed by the 9th Additional District Judge, Varanasi in Reference no. 167 of 1987. It may be mentioned here that the aforesaid application was filed by the petitioners'' father who was the original tenure holder and after his death that is being prosecuted by the two petitioners who are his sons and legal representatives.

The respondent no. 2 vide order dated 29th May, 1989 rejected the application filed by the petitioners'' father. The order dated 29th May, 1989 was the subject matter of challenge before this Court by means of the Writ Petition no. 48046 of 1999, Jokhai Ram and another vs. State of U.P. and another, which was allowed vide judgment and order dated 17th February, 2004 and the order dated 29th May, 1989 was quashed. The petitioners filed a copy of the order dated 17th February, 2005 passed by this Court before the respondent no. 2 but when sufficient time elapsed and nothing was done the petitioners approached this Court by filing Contempt Petition no. 4563 of 2008 in which notices were issued. During the pendency of the contempt petition the petitioners were informed that the application has been rejected vide order dated 14th June, 2007. The information of the order was given to the petitioners on 25th February, 2009. The petitioners have challenged the order dated 14th June, 2007by means of the present writ petition. The respondent no. 2 had rejected the application filed by the petitioner on the ground that the order passed in Land Acquisition Reference no. 167 of 1987 belonged to a different village whereas the petitioners'' land is situate in a different village and the petitioners had not given any evidence regarding comparative Circle rate, utility and the topography and also substitution of their names in place of Nanhoo, the deceased. It has further stated that benefit of Section 28A of the Act cannot be taken as a windfall as it is meant for the indigent persons in respect of which the petitioners have not given sufficient proof. Accordingly the application was dismissed.

We have heard Sri K.S. Shukla, learned counsel for the petitioners and Sri M.C. Tripathi, learned Additional Chief Standing Counsel and have perused the averments made in the writ petition and affidavits exchanged between the parties.

Sri Shukla, learned counsel for the petitioners, has submitted that the order dated 14th June, 2007 passed by the respondent no. 2 is based on irrelevant considerations and materials and is liable to be set aside. According to him the benefit of Section 28A of the Act cannot be denied merely on the ground that the land is situate in two different villages when the same was acquired by the same notification and it is not necessary to establish the comparative circle rate, utility and the topography and the application has to be dealt with in accordance with the provisions of Section 28A of the Act.

Sri M.C. Tripathi, learned counsel appearing for the respondents on the other hand submitted that the order impugned in the present writ petition calls for no interference as the respondent no. 2 has taken into consideration all the relevant factors. However, he submitted that if the land relates to one notification and belongs to two different villages and the compensation has been enhanced under reference preferred by some of the land holders and other conditions are fulfilled, Section 28A of the Act would be applicable.

It is not in dispute that the petitioners have not made any reference. The land covered under the same notification though a land situate in a different village was the subject matter in Land Acquisition Reference no. 167 of 1987, Lutful Haque vs. Collector Varanasi and the 9th Additional District Judge, Varanasi vide order dated 9th December, 1988 has enhanced the compensation. The application was filed within the limitation provided u/s 28A(1) of the Act i.e. within three months from the date of the order passed by the Reference Court. We are of the considered opinion that the application was maintainable and the respondent no. 2 had erred in law in rejecting the same, which is based on irrelevant material consideration. In our considered opinion, the purpose of Section 28A of the Act is to extend the benefit of enhanced compensation to other persons who have not gone in reference and whose land was acquired by the same notification even though it situate in a different village. u/s 28A(1) of the Act the Collector is only empowered to substitute the market rate of the land acquired by the rate determined by the Reference Court. Rest of the deductions etc. would remain the same.

In view of the foregoing discussion the writ petition is allowed and the impugned order dated 14th June, 2007 passed by the respondent no. 2, filed as annexure no. 4 to the writ petition, is set aside and the said respondent is directed to pass a fresh order in accordance with law in the light of the observations made hereinabove within one month from the date a certified copy of this order is filed before the said authority.