Azad Ahmad Khan and Another vs State of U.P. and Another

R.A. Sharma, J.—Petitioners are the owners of certain plots of land in village Rasiya, Pargana Kera Magror, Tahsil Chakia, district Varanasi. Their land as well as the land of various other persons were acquired under the Land Acquisition Act (hereinafter referred to as the Act) by the Government. Award u/s 11, determining the compensation to be paid for the acquired land was also made. Some of the land-holders being dissatisfied with the award got a reference made u/s 18 of the Act to the Court. The court enhanced the compensation. The Petitioners thereafter moved applications u/s 28A of the Act before the Collector (Land Acquisition Officer) for enhancement of compensation of their land in accordance with the award/decree given by the District Judge on a reference u/s 18. Their applications were rejected on the ground of delay. That order was challenged by them by means of a writ petition before this Court, which was allowed vide judgment dated 18.9.1989, whereby directions were issued for deciding the Petitioners'' applications u/s 28A of the Act on merit. Thereafter the Special Land Acquisition Officer vide his award dated 19.1.1993 enhanced the compensation of the Petitioners'' land in terms of the judgment given earlier by the learned District Judge on a reference u/s 18. By the said award after adjusting the amount already paid to them, a sum of Rs. 1,83,554.29 have been awarded in favour of the Petitioners. As the aforesaid amount pursuant to the award dated 19.1.1993 was not paid to the Petitioners, they made a representation dated 28.4.1993 to the District Magistrate/Special Land Acquisition Officer, Varanasi for payment. But even then the awarded amount was not paid. They thereafter continued to make representations and reminders in connection therewith. They also met the Collector/Special Land Acquisition Officer personally; but without any result. Ultimately, they have filed this writ petition, praying for writ of mandamus, directing the Respondents to pay them the amount awarded to them by order dated 19.1.1993 along with interest at the rate of Rs. 18% per annum.

This Court while entertaining this writ petition on 28.10.1993 passed an interim order, which is reproduced below, permitting the Petitioners to approach the Respondents with a copy of that order for payment of compensation:

Learned standing counsel seeks time for obtaining instructions and filing counter-affidavit. List this petition for admission on 29.11.1993 by which date the learned standing counsel may file counter affidavit. The Petitioners may approach with the copy of this order to Respondent No. 2 for payment of compensation and in case the payment as aforesaid has yet not been made, he shall make arrangement for the same and the learned Counsel for the Petitioners shall intimate to this Court by the next date whether the said payment has been made or not.

Inspite of the above order the payment was not made to the Petitioners.

Respondents have filed counter-affidavit and the Petitioners have filed rejoinder-affidavit in reply thereto. We have heard the learned Counsel for the parties.

In the counter-affidavit making of an award dated 19.1.1993 by the Special Land Acquisition Officer u/s 28A of the Act and non-payment of the amount awarded to the Petitioners are admitted. But in paragraphs 10 to 15 of the counter-affidavit, it has been stated that the compensation could not be paid to the Petitioners for want of money. Paragraphs 10 to 12 of the said counter-affidavit are reproduced below:

That in reply to the contents of paragraph No. 12 of the writ petition it is stated that when the amount will be made available for payment to the Petitioners, the question of payment of interest will be considered in accordance with law.

That in reply to the contents of paragraph No. 13 of the writ petition it is submitted that no money is available in any plan of the concerned Chandra Prabha Division, Varanasi.

That in reply to the contents of paragraph No. 14 of the writ petition it is stated that as soon as the necessary money is made available by the acquiring body, the same will be paid to the Petitioners.

In the rejoinder-affidavit, the Petitioners have disputed the claim of the Respondents regarding want of money and they have further stated that they are not being paid compensation on account of extraneous consideration.

The Act has provided for acquisition of the land by the State on payment of compensation. After the award u/s 11 has been made, determining the compensation to be paid for the acquired land, Section 31 of the Act cast obligatory duty on the Collector to tender the payment of compensation awarded to the persons interested/entitled thereto unless prevented by one or more contingencies mentioned in Sub-sections (2) and (3) of the said section. Sub-section (2) covers a case when there is a dispute as to the title to receive the compensation or as to apportionment of it or when either the land-holder does not consent to receive the compensation or there is no person competent to alienate the land. But in such cases also, the amount awarded has to be deposited in the Court. Under Sub-section (3), the Collector with the sanction of the appropriate Government has been given the discretion to make arrangement of the kind specified therein with a person having limited interest in the land instead of awarding money compensation. Therefore, unless the case is covered by Sub-sections (2) and (3), the Collector is bound to make payment of the compensation awarded to the land-holder. The instant case is not covered by Sub-sections (2) and (3) of Section 31.

Award made u/s 28A replaces the award made u/s 11 of the Act. It is the duty of the Government to pay the compensation of the acquired land to the land-holders not only in accordance with an award u/s 11; but also in accordance with the award made u/s 28A. The Act does not contemplate acquisition of the land without payment of compensation. It is not open to the Government to first acquire the land and then decline to pay compensation for it. Such an attitude of the Government is not only contrary to the provisions of the Act but is also contrary to Article 300A of the Constitution of India. If it does not have money to pay compensation, it has no business to acquire somebody''s property. In the instant case, possession of the land has already been taken by the State long ago; but compensation for the acquired land has not been paid so far. It is most unfortunate that peoples'' land have been acquired but compensation has not been paid to them on the pretext of want of funds. The Government''s failure to pay the compensation to the Petitioners deserves condemnation and cannot be sustained.

The Government has to pay not only the compensation awarded but also the interest on it when the compensation has not been paid on or before taking possession of the land. That is the mandate of Section 34 of the Act, which is reproduced below:

Payment of interest--When the amount of such compensation is not paid or deposited on or before taking possession of the land, the Collector shall pay the amount awarded with interest thereon at the rate of nine percentum per annum from the time of so taking possession until it shall have been so paid or deposited:

Provided that if such compensation or any part thereof is not paid or deposited within a period of one year from the date on which possession is taken, interest at the rate of fifteen percentum per annum shall be payable from the date of expiry of the said period of one year on the amount of compensation or part thereof which has not been paid or deposited before the date of such expiry.

This writ petition is allowed with costs, which in view of the facts and circumstances of the case, is assessed at Rs. 25,000 (Rupees twenty-five thousand). The Respondents are directed to pay the compensation awarded by the award dated 19.1.1993 with interest thereon at the rate of nine percentum per annum for a period of one year from the date on which the possession of the land was taken and thereafter at the rate of fifteen percentum per annum until the compensation has been paid to the Petitioners within a period of three months from the date the certified copy of this judgment is produced before them. The cost mentioned above will also be paid within the same period of three months.