Uttar Pradesh Awas Avam Vikas Parishad & Another vs Bhaw Hari Har Lal (since deceased) & Others

Ramesh Ranganathan, C.J.

This appeal is preferred against the order passed by the learned Single Judge in Writ Petition (M/S) No.1428 of 2015 dated 10.9.2018.

The first respondent before us filed Writ Petition (M/S) No.1428 of 2015 seeking a direction to the appellant-respondent to commence land acquisition proceedings afresh; to determine the market value under Section 26 and make an award within a period of two months from the date of declaration under Section 19, as provided under Section 25 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation & Resettlement Act, 2013 (hereinafter called the '2013 Act'); and to direct the respondents to take immediate steps to issue a notification to de-notify the subject land from acquisition under the Rules framed under Section 109(S) of the 2013 Act, read with Section 101 of the said Act, for return of the land to the petitioner.

Facts, to the limited extent necessary, are that the first respondent owned land of an extent of 1.26 Acres situated in Village Jakhan, Pargana Central Doon, District Dehradun; the appellants acquired 30.35 acres of land in the said Village for Vikas and Grihastan Yojna No.1; the notification was published in the Gazette on 15.7.1972 and 12.12.1979/21.1.1979; an award was passed on 28.3.1983, even before which possession of the subject land was taken over by the appellants on 28.1.1981; however, during the course of award enquiry, the Special Land Acquisition Officer was informed that there was a dispute, with regards the petitioner's land, under the Urban Land (Ceiling and Regulation) Act, 1976 and, consequently, the subject land was excluded, and an award was passed with respect to the remaining extent of land; and the appellant, however, continued to retain possession of the subject land ever since 28.01.1981.

On the first respondent invoking the writ jurisdiction of this Court, an interim order was passed on 17.2.2018, by the learned Single Judge, directing the District Magistrate/SLAO, Dehradun to pass an award under Section 19 of the 2013 Act and to ask the appellant to deposit the tentative amount; and, thereafter, to pay the same to the petitioner/land owners after verifying who were legally entitled to receive the compensation.

In compliance with the said interim order, the appellant deposited the tentative amount in excess of Rs.6.00 crores on 8.6.2018 and, thereafter, passed an award, u/s 23 of the 2013 Act on 1.9.2018, awarding a sum of around Rs.22.91 crores as compensation. By the order under appeal dated 10.9.2018, the learned Single Judge directed the appellant to deposit the remaining amount, pursuant to the order dated 1.9.2018, within a period of 15 days from the date of the order, failing which the Commissioner, U.P. Awas Evam Vikas Parishad and Secretary, Housing and Development, Uttar Pradesh were directed to remain present before this Court on 27.9.2018. The learned Single Judge, while recording his dissatisfaction regarding the apology tendered by the Special Land Acquisition Officer, directed him to remain present on the next date of hearing. Aggrieved thereby, the present appeal.

Mr. B.S. Adhikari, learned Counsel for the appellant, would submit that the directions issued by learned Single Judge for payment of the awarded compensation goes beyond the relief sought for in the writ petition; the first respondent has, in any case, sought a reference under Section 64 of the 2013 Act; and the learned Single Judge was, therefore, in error in directing payment of compensation within 15 days of the order being passed.

The earlier order of the learned Single Judge dated 17.02.2018, directing the appellant to pass the award under the 2013 Act, is not under challenge before us. Consequently, the only question which necessitates examination in this appeal is whether the learned Single Judge was justified in directing payment of awarded compensation to the first respondent, that too within a period of 15 days.

Section 40 of the 2013 Act relates to the special powers in case of urgency to acquire land in certain cases and, in cases of urgency, whenever the appropriate Government so directs, the Collector, though no such award has been made, may, on the expiration of thirty days from the publication of the notice mentioned in Section 21, take possession of any land needed for a public purpose, and such land shall thereupon vest absolutely in the Government.

As noted hereinabove, possession of the subject land was taken by the appellants on 28.1.1981. Ordinarily, possession of the subject land could only have been taken under Section 38(1) of the 2013 Act by the Collector after ensuring that full payment of compensation is paid or tendered to the entitled persons within a period of three months for the compensation, and a period of six months for the monetary part of the rehabilitation and resettlement entitlements listed in the Second Schedule commencing from the date of the award made under Section 30. If the subject land had been acquired, on a notification been issued under Section 11 of the 2013 Act, then, in the absence of the urgency clause under Section 40 of the 2013 Act being invoked, possession could only have been taken on payment of the awarded compensation which, in terms of Section 38(1) of the 2013 Act, is required to be paid within a period of three months from the date of the award.

Having continued to retain possession of the subject land for the past nearly 38 years, the appellant now contends that no time frame should have been fixed by the learned Single Judge for payment of the awarded compensation.

The main ground of challenge of the order of learned Single Judge, as noted hereinabove, is that the learned Single Judge had granted a relief not sought for in the writ petition. As noted hereinabove, the relief, sought for in the writ petition, is to acquire the subject land under the 2013 Act. That relief was, in effect, granted by the learned Single Judge by his order dated 17.2.2018, whereby the District Magistrate/SLAO, Dehradun was directed to pass the award under the 2013 Act. Even if the learned Single Judge had not fixed a time frame for payment of the awarded compensation, Section 38(1) of 2013 Act obligated the appellant to pay the awarded compensation within three months from the date on which the award was passed. While we shall examine later whether the learned Single Judge was justified in granting fifteen days' time, we see no merit in the submission of Mr. B.S. Adhikari, learned Counsel for the appellant, that no time frame could have been fixed by the learned Single Judge, merely because such a prayer was not specifically made in the writ petition. Payment of compensation is as a consequence of the award passed earlier, and the appellants cannot be heard to contend that the Courts should not, in the exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India, fix a time frame for payment of compensation.

The other contention urged by Mr. B.S. Adhikari, learned Counsel for the appellant, is that the learned Single Judge has erred in directing payment of compensation, since the first respondent-writ petitioner had sought a reference under Section 64 of the 2013 Act. A reference is sought by the land owner only in case he is not satisfied that the compensation awarded to him by the Special Land Acquisition Officer and, in such circumstances, he is entitled to approach the Land Acquisition Rehabilitation and Resettlement Authority seeking enhancement of compensation.

The mere fact that an application was made seeking enhancement of the compensation would not absolve the appellant from making payment of the compensation payable in terms of the Award itself. This contention urged, on behalf of the appellants, also necessitates rejection.

While we see no error in the order under appeal directing the appellant to pay compensation, the learned Single Judge was not justified in directing such payment to be made within 15 days. As noted hereinabove, Section 38(1) of the 2013 Act requires full payment of compensation to be made within a period of three months from the date of the award. While it is, no doubt, true that the embargo u/s 38(1) of the 2013 Act is for taking possession before payment of compensation, and in the present case the appellant has taken possession of the subject lands more than thirty eight years ago, that does not absolve them of their obligation to pay compensation in terms of the award.

Suffice it, therefore, to modify the order of the learned Single Judge, and direct the appellants to pay the awarded compensation to respondent no.1 herein, in terms of Section 38(1) of 2013 Act, within three months from the date of receipt of a copy of this order.

As the order of the learned Single Judge has been modified by us, the order under appeal, to the extent the respondent-officials were directed to be present, is also set aside.

Subject to the aforesaid modifications, the appeal fails and is, accordingly, dismissed.

Pending application, if any, stands disposed of.