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Judgment
Considering the similitude of the controversy involved in all the aforesaid cases, they have been heard analogously and are being decided by this common order, however, for the sake of convenience, facts of WP No.13512/2012 have been taken into consideration.
The present petition under Article 226 of the Constitution of India has been filed seeking the following reliefs :-
"7.1The Hon’ble Court may kindly be pleased to quashed the impugned notice/award (Annexure P-6 & P-9) by issuing an appropriate writ order, in the interest of justice.
7.2The Hon’ble court may kindly be pleased to call for the relevant record pertaining to the subject matter for kind perusal of this Hon'ble Court.
7.3Any other relief, which this Hon’ble Court deems fit and proper may also be passed together cost of the petition".
The petitioners have filed the present petition challenging the order dated 12.7.2010, by which the notices were issued under Section 4(2) of the Land Acquisition Act (hereinafter referred to as 'the Act of 1894' for the sake of brevity) and final Award dated 19.3.2012 passed under Section 11 of the Act of 1894.
It is contended by learned Counsel for the petitioners that while passing the Award acquiring the lands of the petitioners, they have not been given due opportunity of hearing to submit their objections. It is further submitted that they are the residents of the locality where the Maihar temple is situated. They were running their business for livelihood. Their residential houses were also situated. They had some other lands also in the vicinity, which have been acquired by the aforesaid award. It is further submitted that the Award has been passed on the pretext that such land is required for the development of Maihar temple due to increase of pilgrimage. However, the said object of the Government is against the reality. The temple is required only for nine days during the Navaratris, and therefore, there was no necessity to acquire the lands and residential houses of the petitioners. It is further submitted that under Section 33 of 'The Madhya Pradesh Maa Sharda Devi Mandir Adhiniyam, 2002' (hereinafter referred to as 'Adhiniyam, 2002'), the specific provision is legislated for the purpose of acquisition, according to which the committee of temple may initiate proceedings of acquisition by way of agreement and if the committee fails to acquire the land, then only the matter will be referred under the Land Acquisition Act, therefore, in absence of such agreement, the acquisition done by the authority under the Act of 1894 is not sustainable in the eyes of law. It is further submitted that the lands of the petitioners are situated five kilometres away from the temple premises, therefore, they are not required for any purpose. Apart from this, no ground has been raised during the course of arguments.
Per contra, learned Counsel for the respondents has submitted that the authorities on the proposal for acquisition have initiated the proceedings under the Act of 1894 for acquiring the land situated within the vicinity of the temple, for which necessary notice under Section 4 was issued, which was published in the newspaper 'Navbharat ' on 1.8.2010 and 'Nav Swadesh' on 28.11.2010. All the petitioners have raised objections against the notice published in the newspaper. The objections raised by the petitioners have been dealt with in the Award. Therefore, the proceedings as provided under the Act of 1894 have been complied with absolutely in consonance with law. The grounds, which have been raised by the petitioners during the course of the arguments are not tenable. Once the award has been passed, the only remedy which has been left to the petitioners is to challenge the Award under Section 18, which they have filed and which was rejected by the order dated 27.7.2012 (Annexure P/11). The said order is also under challenge in connected three petitions, however is not under challenge in the present petition - W.P.No.13512/2012. It is submitted that the objections have been decided on the ground of limitation finding it to be time barred. It is further submitted that Section 33 of the Adhiniyam 2002 provides for acquisition by agreement by the Committee and if it fails, then only the matter can be referred under the Act of 1894. Therefore, there is no bar that the lands cannot be acquired under provisions of the Act of 1894, and it is to be acquired only by way of agreement. In any case, section 33 provides that if any land is required, then it is to be acquired, and accordingly prays for dismissal of the petitions.
Heard learned counsel for the parties and perused the record.
Dealing with the first question in regard to necessity of the land for the purpose of activities of the temple, for which the acquisition has been initiated is examined, it is found that the said question of fact is immaterial in the light of the judgment passed by the Apex Court in the case of Indore Development Authority v. Manoharlal and Others, (2020) 8 SCC 129 . The relevant portions are quoted hereinbelow:-
"364.Section 24 deals with lapse of acquisition. Section 101 deals with the return of unutilised land. Section 101 cannot be said to be applicable to an acquisition made under the 1894 Act. The provision of lapse has to be considered on its own strength and not by virtue of Section 101 though the spirit is to give back the land to the original owner or owners or the legal heirs or to the Land Bank. Return of lands is with respect to all lands acquired under the 2013 Act as the expression used in the opening part is “When any land, acquired under this Act remains unutilised”. Lapse, on the other hand, occurs when the State does not take steps in terms of Section 24(2). The provisions of Section 101 cannot be applied to the acquisitions made under the 1894 Act. Thus, no such sustenance can be drawn from the provisions contained in Section 101 of the 2013 Act. Five years' logic has been carried into effect for the purpose of lapse and not for the purpose of returning the land remaining unutilised under Section 24(2)."
It is submitted in the return that the lands are required because of influx of the pilgrims in the temple. The acquisition of lands have been initiated on the ground that as the Maihar temple is getting more and more influx of the pilgrims, therefore, for their arrangements and management, such lands are required. Therefore, the fact in regard to necessity is a disputed question of fact. This cannot be decided under Article 226 of the Constitution of India. Otherwise also, in the light of the judgment of the Hon. Apex Court in the case of Swati Ferro Alloys Private Limited vs. Orissa Industrial Infrastructure Development Corporation (IDCO) and others reported i n (2015) 4 SCC 204 , that cannot be a subject matter of the writ petition, once the Award has been finalized and compensation has been deposited. The relevant portion of the Judgment in the case of Swati Ferro Alloys Private Limited (supra) is reproduced as under:-
"16.From the bare pleading of the case and the record, we find that there is disputed question of fact about the ownership of Plot No. C/9, Industrial Estate, Cuttack. Therefore, the High Court was justified in dismissing the same and directing the parties to approach the civil court for resolving such dispute."
From the perusal of the interim order dated 10.10.2013, it is not transpired that the possession pursuant to the Award passed under the Land Acquisition Act has been taken over or not. The interim order only speaks about the protection to the allotted shops. Therefore, in absence of any document by the petitioners that they have been continued in the possession despite the acquisition, cannot be adjudicated, as this also constitutes a disputed question of fact.
The second question which arises for consideration is that whether the application submitted under Section 18 of the Act of 1894 dismissed on the ground of delay can be subject matter of this petition. As the petitioners have challenged the validity and legality of the Award, the said question cannot be adjudicated under Section 18 of the Act of 1894. Section 18 of the Act of 1894 deals only in four fields i.e. in regard of dispute in measurement, amount of compensation, person to whom it is payable and the apportionment of the compensation.
For ready reference, Section 18 is reproduced herein below:-
"18.Reference to Court - (1) 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, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested.
(2)The application shall state the grounds on which objection to the award is taken:
Provided that every such application shall be made,-
(a)if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collectors award;
(b)in other cases, within six weeks of the receipt of the notice from the Collector under section 12, sub-section (2), or within six months from the date of the Collectors award, whichever period shall first expire."
From bare reading of the provisions of law and in the given set of facts, the challenge has been made to the validity and legality of the Award. Therefore, this Court has no iota of doubt that such Award cannot be challenged under Section 18 of the Act of 1894. Section 12 of the Act of 1894 provides finality of the Award passed by the Collector.
For ready reference, Section 12 is quoted herein below:-
"12.Award of Collector when to be final - (1) Such award shall be filed in the Collector's office and shall, except as hereinafter provided, be final and conclusive evidence, as between the Collector and the persons interested, whether they have respectively appeared before the Collector or not, of the true area and value of the land, and the apportionment of the compensation among the persons interested.
(2)The Collector shall give immediate notice of his award to such of the persons interested as are not present personally or by their representatives when the award is made."
From bare reading of the provision, it is amply clear that the Award under Section 12 is final and conclusive evidence between the Collector and the person interested, whether they have respectively appeared before the Collector or not, of the true area and the value of the land and apportionment of the compensation between the persons interested. Correction of the said Award can be made by the Collector under Section 33 only to the extent mentioned in the provision.
Now, the contention of the petitioners is that Award has been passed dehors the rules and the procedure provided under the Act of 1894. It is submitted that the petitioners were not sufficiently given opportunity to submit the objections under Section 4, and thereafter under Section 6. All the petitioners have filed their objections vide Annexure P/7 in connected writ petitions, which were decided by Order dated 4.11.2010 (Annexure P/8). The Counsel for the petitioners has invited attention of this Court towards the fact of filing of petition prior to passing of the Award as W.P.No.11991/2011, which was disposed of vide Order dated 23.12.2011, wherein this Court has directed the authority to consider the objection submitted by the petitioners pursuant to Section 4 (1) of the Act of 1894. It is further submitted that by impugned order (Annexure P/9) dated 19.3.2012, the authorities have not considered the objection by holding that no orders can be passed after the notification under Sections 6 and 9 have already been published, therefore, there is no need for hearing the petitioners on the objections. The Allahabad High Court in the case of Mt. Krishna Dei Vs. Governor-General in Council and others, AIR 1950 All 1 has held as under:-
"It was also urged that, even if the land in suit was acquired by plaintiff 1, the proceedings are not binding on the appellant as her predecessors-in-interest were not made parties. This ground was not urged in lower appellate Court. On merits it has no substance when it has been proved in this case that the Collector made an award and compensation was actually paid to some persons interested. Under Section 12 of the Land Acquisition Act such an award when filed in the Collector's office shall, except as provided in the Act itself, be final and conclusive evidence as between the Collector and the persons interested whether they have respectively appeared before the Collector or not, of the true area and the value of the land and the apportionment of the compensation among the persons interested. Section 18 of the Act provides the manner in which the award of a Collector may be challenged by any person interested, who has not accepted the award. Apparently the predecessors-in-interest of the defendant never challenged the award. The award cannot be challenged in this proceeding. The result is that there is no substance in this appeal and it is hereby dismissed with costs. The stay order dated 7-12-43/28-8-44 passed in civil Miscellaneous Application No.1257 of 1943 is hereby vacated."
It is submitted by the Counsel for the State that vide Annexure P/8 dated 4.11.2010 all the objections have been decided in detail, therefore, there is no occasion for the authority to re-decide the same.
From the perusal of the record, it is found that the objections were decided vide Order dated 4.11.2010 (Annexure P/8), while this Court has issued direction vide order dated 3.10.2011, which is wrongly typed in the order as '23.12.2011', which makes it clear that the objections of the petitioners were decided prior to direction issued by this Court. Therefore, this Court consciously has made an observation that if the objections are not already decided, that may be decided. Therefore, the authorities have rightly observed that the objections of the petitioners have already been dealt with at the previous stage.
Now the only question, which is left for consideration is whether this Court under Article 226 of the Constitution of India can examine the validity and legality of the Award passed under Section 11 of the Act of 1894.
The Hon'ble Apex court in the case of Neyvely Lignite Corpn. Ltd. v. Special Tahsildar (Land Acquisition) Neyvely, (1995) 1 SCC 221 has held as under :-
11.Shri Sanghi placed a strong reliance on Santosh Kumar v. Central Warehousing Corpn. [(1986) 2 SCC 343 : (1986) 1 SCR 603] The facts therein were that the award made under Section 11 was challenged in the writ petition contending that the Corporation is the affected person by determination of the compensation and without impleading it, the award made was illegal. The High Court exercising its jurisdiction under Article 226 of the Constitution reduced the compensation. On an appeal, this Court had held that when the acquisition was made on behalf of the Corporation, the Collector had acted as an agent on behalf of the Government. The award is only an offer. When the Government itself cannot seek a reference under Section 18, the beneficiary also cannot seek a reference. In those circumstances, it was held that the award made by the Collector could not be questioned except when the award was vitiated by fraud, corruption or collusion. The ratio is clearly consistent with the view taken by this Court in Harish Chandra v. Dy. Land Acquisition Officer [(1962) 1 SCR 676 : AIR 1961 SC 1500] . It is well settled law laid in Ezra v. Secretary of State for India in Council [ILR 32 Cal 605 : 32 IA 93 (PC)] and catena of precedents that the award made by the Collector is only an offer made on behalf of the State and that, therefore, the State is bound by the offer made by the Collector. If the owner accepts it without protest no further proceedings were required to be pursued. But if the owner received it under protest and made a valid application for reference, the amount determined by the civil court under Section 26 binds the parties and concludes the proceedings subject to appeal. In that view, there is no inconsistency with the view taken in Himalayan Tiles case [(1980) 3 SCC 223 : (1980) 3 SCR 235] with the view in Santosh Kumar case [(1986) 2 SCC 343 : (1986) 1 SCR 603] . The facts therein do not touch the controversy now in this case. Under these circumstances, the ratio in Santosh Kumar case [(1986) 2 SCC 343 : (1986) 1 SCR 603] renders little assistance to the respondents. However, the Ahmedabad Municipal Corpn. case [(1971) 3 SCC 821] is not a good law. In this view it is hardly necessary to burden the order with copious citations of contra view in plethora of precedents of the High Courts.
12.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 adduction 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
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 substitution 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 [(1980) 3 SCC 223 : (1980) 3 SCR 235] is that the beneficiary, i.e., local authority or company, a cooperative 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 judgment and decree under Section 54 or is entitled to file writ petition under Article 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 CPC, 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 Article 14 of the Constitution.
Further, the Hon'ble Apex Court in the case of Naresh Kumar and others vs. Government (NCT of Delhi), (2019) 9 SCC 416 in paras 8 to 13 has held as under :
"8.There is no provision under the Land Acquisition Act, 1894 for review of the award once passed under Section 11 of the Act and had attained finality. The only provision is for correction of clerical errors in the award which is provided for under Section 13-A of the Act, which was inserted with effect from 24-9-1984. The relevant Section 13-A of the Act reads as under:
“13-A. Correction of clerical errors, etc.—(1) The Collector may, at any time but not later than six months from the date of the award, or where he has been required under Section 18 to make a reference to the court, before the making of such reference, by order, correct any clerical or arithmetical mistakes in the award or errors arising therein either on his own motion or on the application of any person interested or a local authority: Provided that no correction which is likely to affect prejudicially any person shall be made unless such person has been given a reasonable opportunity of making a representation in the matter. (2) The Collector shall give immediate notice of any correction made in the award to all the persons interested. (3) Where any excess amount is proved to have been paid to any person as a result of the correction made under sub-section (1), the excess amount so paid shall be liable to be refunded and in the case of any default or refusal to pay, the same may be recovered as an arrear of land revenue.”
(emphasis supplied)
9.A bare reading of the said Section 13-A would make it clear that the same is not a provision for review of the award but only for correction of clerical or arithmetical mistakes in the award. It is further provided in sub-section (1) of Section 13-A that the said correction can be made at any time, but not later than six months from the date of award. In the present case, the Land Acquisition Collector has actually not made any correction of clerical or arithmetical mistake, but has in fact reviewed the award dated 1-10-2003 by its Review Award No. 16/03-04 dated 14-7-2004, which was also clearly passed beyond such period of six months.
10.In our considered view, the review award could not have been passed under Section 13-A of the Act, which is meant only for correction of any clerical or arithmetical mistake. There is no other provision in the Act under which the said order dated 14-7-2004 could have been passed.
11.In the present case, the compensation for the structure on the land has been deducted from the award dated 1-10-2003 by the review award dated 14-7-2004 on the ground of the same being illegal structure, which actually amounts to review of the award and cannot be said to be a correction of any clerical or arithmetical mistake. The question whether the structure on the land of the appellants was legal or illegal could only be decided after the parties were given opportunity to adduce evidence, which correction cannot be termed as correction of any clerical or arithmetical mistake. There being no provision under the Land Acquisition Act, 1894 for review of the award, the passing of the order dated 14-7-2004 in Review Award No. 16/03-04 cannot be justified in law.
12.Section 12 of the Act clearly provides that the award of the Collector shall become final on the same being filed in the Collector's office, of which the Collector shall give immediate notice to the persons interested. From the facts of this case, it is clear that the award dated 1-10-2003, of which due notice had been given to the appellants and part compensation had also been paid to the appellants in pursuance thereto, had become final and the same could not have been reviewed, and that too beyond a period of six months, within which period only clerical or arithmetical mistakes could have been corrected.13. It is settled law that the power of review can be exercised only when the statute provides for the same. In the absence of any such provision in the statute concerned, such power of review cannot be exercised by the authority concerned."
In view of the aforesaid legal proposition, it is held that the award passed by the Authority is final and cannot be challenged under Article 226 of the Constitution of India.
It is submitted by the learned Counsel for the petitioners that vide letter dated 27.4.2012 (Annexure P/10), the Land Acquisition Officer has written a letter to the Administrator of the temple that the land acquisition proceedings are over, as the lands have been acquired, survey of trees, bore, houses and well be conducted through technical Department and accordingly, valuation be prepared and sent to the Land Acquisition Officer. Therefore, the acquisition has not been done in respect of the houses, well, bore, trees or any construction appurtenant to the land by the Land Acquisition Officer. From perusal of this letter, it is clear that acquisition in respect of structures and the well, trees, bores over the lands acquired for the purpose, prior to the letter written, was not conducted. Therefore, in case such assessment of compensation in respect of houses, well, trees, bores has not been done by the authorities in respect of the petitioners, then same is required to be done after due survey as written in the letter. To that extent, direction can be issued to the authority to consider the case of the petitioners in the light of the letter and if the survey is not already done, then it may be done in the light of letter dated 27.4.2012 (annexure P/10) and the petitioners be suitably compensated. It is submitted by counsel for the petitioners that under the garb of notification/award, the respondents are trying to dispossess the petitioners from the shops which they are running on the lands owned by them. It is submitted that the respondents have also communicated the same vide letter dated 27.4.2012 (annexure P/10).
Keeping in view the facts and circumstances of the case and the aforesaid enunciation of law laid down by the Hon'ble Apex Court, the petitions are disposed of with direction to the respondent authorities to consider the case of the petitioners with regard to assessment of compensation in respect of houses as well as trees, bores, wells, which has not been done and calculate the same and award compensation in accordance with law, if not already paid. Further, the respondents are directed that in case the lands where the shops of the petitioners are situated are required for acquisition and have not been acquired, then the same shall be done in accordance with annexure P/10 and appropriate proceedings be drawn for acquisition. If the petitioners are found to be title holder of the lands then acquisition be done in accordance with law and appropriate compensation be awarded to the petitioners.
With the aforesaid, the writ petitions are disposed of.