Mahi Dass vs Union of India and others

Kuldip Singh, Judge

This appeal has been directed against judgment, decree dated 13.12.2001 passed by District Judge, Kullu in Civil Appeal No. 97 of 2001 reversing judgment, decree dated 24.8.2001 passed by Senior Sub Judge, Kullu in Civil Suit No. 64 of 1997.

The facts, in brief, are that the appellant had filed a suit for declaration that he is owner in possession of the suit land comprised in Khasra No. 1434/1 measuring 3 biswas vide jamabandi for the year 1984-85 Phati Shamshi, Kothi Khokhan, Tehsil and District, Kullu on the basis of sale deed dated 15.5.1986. The mutation No. 3016 was also attested on 7.9.1987 in his favour. It has been stated that possession of the suit land was delivered to the appellant by the vendor prior to the sale deed and appellant started construction of his house on the suit land in August, 1985. The appellant constructed his house on the suit land. The respondents vide order dated 21.9.1994 wrongly mutated the suit land in favour of respondent No. 2 vide mutation No. 4300. It has been stated that the respondents without notice to the appellant has acquired the suit land under the Land Acquisition Act, 1894 (for short ''the Act''). The appellant filed CWP No. 972 of 1994 in the High Court which was dismissed as withdrawn on 19.3.1997 with liberty to the appellant to approach the civil court for working out his remedies. The appellant has prayed declaration that he is owner in possession of the suit land alongwith house standing thereon. The appellant is not bound by mutation No. 4300 vide which the suit land has been mutated in the name of respondent No. 1. In the alternative, the appellant has prayed declaration that the respondents have no right to dispossess him from the suit land until and unless the compensation for the same is paid to the appellant by the respondents. The consequential relief of permanent prohibitory injunction has also been prayed.

The suit was contested by the State of Himachal Pradesh and Land Acquisition Collector by filing joint written statement in which preliminary objections of jurisdiction, non-joinder of necessary parties, cause of action, limitation, want of notice u/s 80 CPC, estoppel, valuation have been taken. On merits, it has been pleaded that khasra No. 1434 has been acquired for the construction of Bhunter By Pass Road vide notification u/s 4 dated 16.8.1986 and vide award No. 10 dated 12.8.1987 in accordance with law as provided under the Act. No objection at any stage of the acquisition was received. The contention of the appellant that he has purchased the suit land from the previous owner was denied for want of knowledge. The appellant has no right over the land which stood acquired way back in the year 1987. The compensation has also been paid to the persons recorded in the column of ownership and possession in the jamabandi for the year 1979-80. It has been stated that after award dated 12.8.1987, mutation No. 4300 dated 21.9.1994 has been sanctioned and attested. The award of the Collector can be challenged by way of reference u/s 18 or Section 30 of the Act. The suit is not maintainable. The prayer has been made for dismissing the suit.

The replication was filed. On the pleadings of the parties, the following issues were framed:-

1.Whether the plaintiff is owner in possession of the suit land? OPP

2.Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP

3.Whether this Court has no jurisdiction? OPD

4.Whether this suit is bad for non-joinder of necessary party? OPD

5.Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction? If so, its effect? OPD

6.Whether the suit is time barred? OPD

7.Relief.

The issues No. 1 and 2 were answered in affirmative and issues No. 3 to 6 in negative and the suit was decreed by the Senior Sub Judge, Kullu on 24.8.2001. The District Judge on 13.12.2001 accepted the appeal, set-aside the judgment, decree dated 24.8.2001 and dismissed the suit of the appellant. Hence, the plaintiff has come in second appeal, which has been admitted on the following substantial questions of law:

Whether in view of the admitted fact that the plaintiff had acquired the land before the notification u/s 4 of the Land Acquisition Act and he had no notice of proceedings under Sections 4, 6, 7, and 9 of the Act, the award was not sustainable and the acquisition proceedings were liable to be set-aside being nonest?

2.Whether the findings of the court below that non-service of the notice under Sections 4, 6 and 9 of the Land Acquisition Act and non-payment of the compensation to the appellant did not effect the acquisition?

I have heard learned counsel for the appellant, Mr. Sandeep Sharma, learned Assistant Solicitor General of India for respondent No. 1 and Mr. J.S.Rana, learned Assistant Advocate General for respondents No. 2 to 4 and have also gone through the record. It has been submitted on behalf of the appellant that the learned District Judge has not properly appreciated the Sections 4, 6, 7 and 9 of the Act. The appellant purchased the suit land before the notification u/s 4 of the Act. It was for the respondents to update the revenue record. No notice u/s 9 of the Act was given to the appellant nor any compensation has been paid to the appellant for acquiring the land. The award dated 12.8.1987 is wrong, illegal and not binding on the appellant. The prayer has been made for decreeing the suit. On behalf of the respondents, it has been submitted that even if it is assumed without conceding that no notice was given to appellant u/s 9 of the Act that will not make the award void. The appellant had not availed the remedy available to him under the Act, the suit filed by him is not maintainable. It has been submitted that no fault can be found with the impugned judgment, decree.

The substantial questions of law No. 1 and 2 are interconnected and, therefore, both of them are taken up collectively for determination. The appellant in the suit has not prayed any relief against the award dated 12.8.1987. Section 12 of the Act gives finality to the award between the Collector and the persons interested, whether they have appeared before the Collector or not. Section 18 of the Act provides reference at the instance of interested persons, Section 30 of the Act also provides reference at the instance of the Collector. It is admitted case of the appellant that he has not filed any reference petition u/s 18 of the Act nor he requested the Collector for making a reference u/s 30 of the Act.

In Arulmighu Lakshminarasimhaswamy Temple Singirigudi Vs. Union of India (UOI) and Others, facts were that notification u/s 4 of the Land Acquisition Act, 1894 was published on 4.6.1987 acquiring the land in question. The award was passed on 7.2.1990. The possession was taken on 30.10.1990. The question before the Supreme Court was what would be the proper procedure to be adopted in case of dispute as to the title of the land acquired under the Act. The learned Single Judge of the High Court declared title of the petitioner in the writ petition and the Division Bench directed the civil court to decide the title. The Supreme Court held both views are erroneous in law. The Land Acquisition Officer has to determine the extent of the land, the persons entitled to compensation and the compensation to be determined u/s 23 (1) of the Act. If he finds that there is any dispute as to the person entitled to receive the compensation, necessarily he has to deposit the amount u/s 31 of the Act into the Court to which reference would lie. On such a dispute having arisen, he has to make a reference to the Court u/s 30 of the Act to decide the dispute between the competing persons who set up rival title to the compensation.

In the present case, the appellant has not made reference u/s 18 of the Act nor requested Collector to make reference u/s 30 of the Act. The award has attained finality u/s 12 of the Act. Once the award has not been challenged, it is immaterial whether notice u/s 9 was given to the appellant or not. The rights will be determined in accordance with the award till the remedy under the Act is availed against the award. The appellant has not challenged the award, therefore, practically both the substantial questions of law, referred above, do not emerge from the grievance raised by the appellant in the suit. The persons who were paid the compensation of the land in dispute under the award have not been impleaded as parties. The appellant has approached the civil court for declaration that he is owner in possession of the suit property. In the alternative, the respondents be directed to pay him compensation. Both the reliefs cannot be granted by the civil court till the award is intact which has not been assailed by the appellant in the suit. There is no merit in the appeal. The aforesaid substantial questions of law are decided against the appellant.

In view of above discussion, the appeal is dismissed with no order as to costs.