Tapa Nath vs Special Land Acquisition Officer ...
2017 Latest Caselaw 3637 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R
 
Court No. - 37
 

 
Case :- WRIT - C No. - 12804 of 2007
 

 
Petitioner :- Tapa Nath
 
Respondent :- Special Land Acquisition Officer And Others
 
Counsel for Petitioner :- U.K. Mishra,A.K. Mishra,Ashutosh Mishra,V. Bajpai
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Rajiv Lochan Mehrotra,J.

Heard Sri Ashutosh Mishra, learned counsel for the petitioner and the learned Standing Counsel for the respondent nos. 1, 2 and 3. The respondent nos. 4 and 5 are proforma-respondents.

A Supplementary affidavit has also been filed by the petitioner bringing certain facts on record that has been dealt with hereinafter.

This writ petition has been filed praying for a certiorari to quash the Government order dated 13th May, 2001 annexed as Annexure No. 5 to the writ petition, whereby the State has issued directives restraining the Collectors/ Special Land Acquisition Officers of all districts to withhold disposal of applications filed under Section 28-A of the Land Acquisition Act, 1894, if in such matters any appeal against the original award is pending before a Higher Court namely the High Court or the Supreme Court. For this the Government order refers to three decisions of the Apex Court namely Babua Ram and others Vs. State of U.P and another, U.P. State Industrial Development Corporation Ltd. Vs. State of U.P and others reported in 1995 (2) SCC pages 689 and 766 respectively. The other judgment referred in the said Government order is that of State of Maharashtra Vs. Manakchand Pyarmal and others 1996 (1) SCC 297.

Learned counsel for the petitioner as urged that even assuming for the sake of arguments, though not admitting, that the said Government order is valid, the facts of the present case do not in any way attract the applicability of the said Government order and consequently, the withholding of the decision on the application of the petitioner filed under Section 28-A is illegal and unjust. Therefore, a prayer has been made to quash the order dated 18th April, 2006 passed by the respondent no. 1, annexure no. 2 to the writ petition.

During the pendency of the writ petition certain interim directions were issued whereupon a fresh order has been passed by the Special Land Acquisition Officer dated 28th June, 2017, copy whereof has been filed and annexed as Annexure S.A-2 to the supplementary affidavit. The said order is also to the same effect that in view of the directives as contained in the Government order dated 13th June, 2001, it will not be appropriate to proceed to hear the application filed by the petitioner that shall be disposed of only after the decision of the appeal that is pending against the award before this Court.

Learned counsel for the petitioner submits that in the instant case, the facts are different inasmuch as in paragraph no.19, the petitioner has categorically stated that First Appeal No. 140 of 1991 (defective) State of U.P. Vs Jag Mohan has been filed against the award in the reference proceedings delivered by the court below. But the said appeal has been abated in the absence of any substitution of the heirs of the respondent in the appeal. Thus, the appeal stands dismissed as on date and therefore neither the judgments of the Apex Court as referred to hereinabove nor the Government order would apply on the facts of the present case.

It is further urged that the mere pendency of a recall application for setting aside the abatement in the said appeal would not denude the petitioner of his right to get his application under Section 28-A adjudicated, inasmuch as, there cannot be a prohibition in law restraining the authority from performing his statutory duty. For this, learned counsel has relied on the decision of a learned Single Judge in the Case of Jangi Lal Vs. Deputy Director of Consolidation 2007 (4) AWC 3598 that has followed a full Bench decisions of this Court in the case of Shakal Singh Vs. Smt. Devi AIR 1979 Allahabad 274 to hold that unless the application that has been moved for setting aside or recalling of a final order is allowed, the mere pendency of such an application will not have the effect of proceedings having been reopened or pending. Learned counsel, therefore, submits that the mere pendency of the application for setting aside the abatement in the appeal referred to hereinabove, does not preclude the Special Land Acquisition Officer or the Collector from proceeding to decide the application under Section 28-A of the 1894 Act.

Learned counsel for the petitioner has further invited the attention of the Court to various orders passed particularly the orders passed in Writ Petition No. 8788 of 2007, copies whereof have been filed as Annexure No. S.A-3 to the supplementary affidavit to urge that in compliance of the said orders, similarly situate tenure holders of the same village have been paid their compensation at the enhanced rate after their applications under Section 28-A have been allowed. He therefore, submits that the petitioner's claim stands at par and consequently this writ petition deserves to be allowed with a direction to the Special Land Acquisition Officer to proceed to pass appropriate orders in the light of what has been indicated above.

Refuting the aforesaid submissions, the learned Standing Counsel submits that the judgments of the Apex Court as referred to in the Government order dated 13th May, 2001 clearly mandate that such applications under Section 28-A do not deserve to be finally disposed of, so long as any matter arsing out of the reference award is pending in appeal before the Higher Forum. He therefore submits that the Government order simply reiterates the view taken by the Apex Court which is a law binding under Article 141 of the Constitution of India and therefore, there is no infirmity in the Government order so as to accept the prayer of the petitioner for quashing of the same.

He further submits that in the instant case also the applications for setting aside the abatement and substitution of the respondent in the appeal filed against the main reference award is still pending and consequently, the ratio of the decision of the Apex Court and the Government order would apply with full force. He therefore, submits that not only the order impugned but also the subsequent order passed on 28th June, 2017 is in conformity with law.

We have considered the aforesaid submissions and in order to test the validity of the Government order, one will have to turn to the judgments of the Apex Court referred to therein.

The judgments in the Case of Babua Ram (supra) and that of U.P. State Industrial Development Corporation (supra) were based on the fact that the application under Section 28-A was filed pending the appeal against the main reference award. In paragraph no. 39 of the judgment in the case of Babua Ram (supra), the Apex Court observed that unless the re-determination under Section 28-A is kept back till the appeal by the High Court is disposed, incongruity can merge. It was further observed that the consequences of such incongruous situations should be avoided and therefore, the Collector or the Special Land Acquisition Officer should stay hands in the matter of re-determination of compensation till the appeal is finally disposed of.

In the other decision reported, namely that of State of Maharashtra (supra), the Supreme Court observed that in that case there was a stay order passed by the High Court against the reference award and in such circumstances it was observed that the appropriate course would be to keep the application made under Section 28-A pending till disposal of the appeal by the High Court.

In the instant case, we find as on record that the appeal cannot be said to be pending as on date. In order to satisfy ourselves we summoned the records of Appeal No. 140 of 1991 (defective) to ascertain as to whether any orders have been passed therein or not. We find from the record that the appeal was abated by the order dated 25th January, 2005. The order passed by the learned Single Judge is endorsed on the order sheet. A recall application came to be filed almost two years thereafter along with a substitution application, which is still pending adjudication. The said applications that were filed on 01.11.2006 were placed before the Court and notices were issued on 14.11.2006 whereafter the matter is pending. In the absence of any orders having been passed either on the application for setting aside the abatement or on the delay condonation application in support of the substitution application, it cannot be construed that the appeal is still pending. The order of abatement has not been set aside so far. Consequently, the ratio of the decision as relied on by the learned counsel for the petitioner in the case of Jangi Lal (supra) would squarely apply. In order to appreciate the same, we may extract paragraph nos. 14 to 17 of the said judgment for ready reference.

14. "Now coming to the question No. (ii), there cannot be any dispute to the fact that on dismissal of a suit or proceeding whether on merits or in default the proceedings stand terminated. If no further action is taken the matter in issue, attains finality. In case the dismissal is on merits and an appeal is filed the matter in issue stands reopened and can be said to be pending to the Simple reason that appeal is continuation of the suit or the proceedings. However, the same is not the position in case where an application to recall the order of dismissal in default is moved. By mere filing of the recall application the proceedings do not stand revived or can be deemed to pending. It is only after the recall application is allowed and the order is recalled and the proceedings are restored back, they become pending.

15. In case of a pendency of a review application, a full bench of this court in the case of Sakal Singh and Ors. v. Smt Devi and Ors. AIR 1979 Alld. 274, has taken a view that mere pendency of the review application will not result in abatement of the suit. Following question was referred to the full bench:

"Does a mere admission of a review application and issue of a rule therein disturb the finality of the judgment in a suit or appeal and reopen and revive that suit or appeal ?."

While answering the question in negative it was observed as under:

"The purpose of abatement under Section 5 of the Act is that the mater can be adjudicated by the consolidation authorities afresh. If the matter has already been decided by a competent court, that would not be reopened. When an appeal is pending then the suit itself will be deemed to be continuing because the appeal is only a continuation of the suit. But this is not the position in respect of a review application. Normally, the judgment once signed cannot be touched by the judge or Tribunal and it is only when the conditions contemplated by Order 47 C.P.C. are satisfied then and then alone, the order can be set aside or modified by the same court and till the review application is allowed, the judgment of the appellate authority is not put in, jeopardy. In the instant case, as only the review application had been admitted and had not been allowed, therefore, the pendency of the review application will not result in the abatement of the suit because the suit had already culminated into a decree by the second appellate court."

16. Same analogy would apply in case of a recall application. Unless the recall application is allowed and the order is recalled, mere pendency of the application will not have the effect of reopening the proceedings inasmuch as the court may after hearing the parties, reject the recall application. It is only after such an application is allowed and the proceedings are reopened the same become pending. Thus answer to question No. (ii) is also in negative.

17. In view of above legal position, the pendency of recall application would not result into revival of the proceedings of the second appeal which came to an end on being dismissed in default nor can there be an automatic abatement without there being an order passed by the Board of Revenue in that regard. All the three consolidation authorities have committed manifest illegality in treating the proceedings of second appeal to be pending before the Board of Revenue merely on account of pendency of recall application filed by contesting respondents. They have further wrongly held that pending proceedings are liable to be abated automatically on issuance of, notification under Section 4(2) of the Act. Decree passed in suit under Section 299-B of U.P.Z.A. and L.R. Act Attained finality by dismissal of second appeal filed by the contesting respondents in default and shall operate as resjudicata between the parties."

We therefore, agree with the contention raised by the learned counsel for the petitioner Sri Ashutosh Mishra that so long as the order of abatement is not set aside, it cannot be said that the appeal is pending. From the records of the appeal, we also find that the decree therein has also been prepared under the signatures of the concerned official of the High Court on 19.04.2006.

Thus, the withholding of a decision on the application under Section 28-A cannot be justified in the above circumstances and the decisions of the Apex Court on the facts of the present case would therefore not apply. The Government order dated 13th May, 2001 therefore cannot obstruct or prohibit the Collector/ Special Land Acquisition Officer from proceeding to dispose of the application of the petitioner.

There is yet another reason for the same namely that in similar circumstances, the another tenure holder of the same village filed a writ petition and the compensation after determination of the enhanced rate under Section 28-A of the 1894 Act has been paid to him. Thus, it would be discriminatory not to allow the application of the petitioner to be disposed of and consequently, neither the order dated 18.04.2006 nor the order dated 28.06.2017 can be sustained.

We accordingly allowed the writ petition and set aside both the aforesaid orders with a direction to the Special Land Acquisition Officer to proceed with the matter in accordance with law.

However, we may put in a caveat at this stage that in the event, the abatement order in the appeal i.e. First Appeal No. 140 of 1991 (defective) is set aside, and the order of reference is either modified or upheld as the case may be, the orders to be passed on the application of the petitioner under Section 28-A as per our directions herein-under would be subject to the final outcome of the order to be passed in the said appeal.

Office is directed to bring this order to the notice of the Registrar listing for listing of First Appeal No. 140 of 1991 (defective) before the appropriate Bench at the earliest for disposal of the pending applications therein.

With the aforesaid directions the writ petition is allowed subject to the conditions hereinabove. The Special Land Acquisition officer shall pass appropriate orders as expeditiously as possible preferably within three months from the date of production of a certified copy of this order.

Order Date :- 25.8.2017

M. ARIF