Satyendra And 2 Others vs State Of U.P. And 4 Others
2018 Latest Caselaw 48 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 40
 

 
Case :- WRIT - C No. - 3241 of 2018
 

 
Petitioner :- Satyendra And 2 Others
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Mr Chandra Bhan Gupta,Mr Abhishek Gupta
 
Counsel for Respondent :- C.S.C.,Bhanu Bhushan Jauhari,Ms Anjali Upadhya
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Shashi Kant,J.

Heard Sri Chandra Bhan Gupta, learned counsel for the petitioners, Sri B.B. Jauhari, learned counsel appearing for respondent no. 4 and learned Standing Counsel appearing for respondent nos. 1, 2, 3 and 5.

The petitioners are sons of late Babu Singh who have assailed the recovery proceedings including the impugned citations dated 04.12.2017 pursuant to the notice dated 04.08.2017 on the ground that the amount which is sought to be recovered as arrears of land revenue, being excess of payment in relation to an excess area as mentioned in the sale deed, is impermissible in law, inasmuch as, here the land has been sold by means of a sale deed and consideration amount was paid to the petitioner no. 1 and mother of petitioner nos. 2 and 3. The same cannot be recovered as arrears of land revenue on the ground that excess area had been mentioned in the sale deed. According to him this would amount to interfering with the contract which has attained finality between the parties and the sale deed is no where under challenge. He submits that the transaction is that of sale of immovable property through a registered document and is not an out come of any statutory intervention. The submission therefore, is that if there is any incorrect description of area or excess of payment on account of such description, then the same could have been recovered by the respondents only by filing a suit and not otherwise. The submission is that the citation issued by the Collector to recover the same as arrears of land revenue is per-se illegal and therefore interference is called for.

Replying to the said submissions of the learned counsel for the petitioners, Sri Jauhari appearing on behalf of respondent Greater Noida Industrial Development Authority submits that averments made in paragraph 12 and 20 of the writ petition leave no room for doubt that the petitioners do not dispute the excess of the area, and consequential excess payment, and have also made an offer to make the said amount good by proposing to give some other land belonging to the petitioners. In this situation, this Court should not interfere with the recovery proceedings, more so, when a Division Bench of this Court in Writ Petition No. 8734 of 2012 - Shree Pal and Others Vs. State of U.P. and Others, decided on 25.07.2012 has categorically held that keeping in view the provisions as discussed therein recovery can be made as arrears of land revenue. He has further stated that another Division Bench of this very Court has refused to interfere in a matter arising out of similar circumstances in Writ-C No. 12270 of 2018 - Rami Vs. State of U.P. and 5 Others, decided on 04.04.2018. The contention, therefore, is that even assuming for the sake of arguments, though not admitting, that recovery citation could not have been issued in the absence of statutory provisions authorising the same, it would not apply to the facts of the present case keeping in view the fact that the petitioners themselves have admitted the amount which has been paid in excess. The recovery proceedings therefore do not deserve to be interfered with.

Having considered the submissions, it is correct that this Court being a Court of equity, may not choose to interfere in the circumstances as pointed out by the learned counsel for the respondents so as to forestall the right of the respondent authority to recover the amount, but so far as position of law is concerned, we on appreciation of the facts involved in the present case as well as the law enunciated in the case of Shree Pal and Others (supra) clearly find that if the amount of money sought to be recovered is not governed by any statutory provision, then there would be no occasion to recover the same as arrears of land revenue. This fundamental issue of law therefore requires to be settled inasmuch as in the present case we find that the sale deed was executed in favour of respondent no. 4- Development Authority on 14th November, 2015 after having received full consideration amount for the said land from respondent no. 4. Aforesaid fact is admitted in paragraph 5 of the writ petition and is undisputed by the respondent authorities.

It is thus evident that the sale deed was executed and the terms of sale deed are categorical particularly with regard to restitution in the event of any default being found which is narrated at page 64 of the paper book. The relevant portion of the sale deed which is the last paragraph, is extracted herein under :-

Þvc izFke i{k vFkok mlds @ muds mRrjkf/kdkfj;ksa dks dksbZ vf/kdkj ;k lEcU/k mDr lEifRr ls 'ks"k ugh jgk gSA izFke i{k vFkok mlds @ muds mRrjkf/kdkjh izkIr mDr izfrQy ds vfrfjDr fdlh vU; /kujkf'k vFkok ykHk ds ik= ugha gksxsA izFke i{k ds lEifRr esa LoRokf/kdkj fo"k;d =qfV ds dkj.k ;fn f}rh; i{k ds lEifRr esa LokfeRo ;k LokRokf/kdkj fof/kd :i ls fdlh Lrj ij izkIr ugh gksrs gS rks f}rh; i{k ds leLr gtsZ [kpsZ ds izFke i{k mRrjnk;h gksxsa rFkk f}rh; i{k dks izFke i{k ls fodz; ewY; rFkk vU; dkuwuh [kpZ olwy djus dk vf/kdkj gksxk] ftlesa izFke i{k dks dksbZ vkifRr ugha gksxhA fodzhr lEifRr fdlh lM+d] jktekxZ ;k jk"Vªh; jktekxZ ds lgkjs ;k yxh gqbZ ugha gSA fodzhr lEifRr d`f"k Hkwfe gS ftlesa ekSds ij [ksrh gksrh gS rFkk blesa LFky ij dksbZ fuekZ.k ugha gSA izFke i{k fodzsrk vuqlwfpr tkfr @ tu tkfr ds lnL; ugha gS rFkk mUgsa lEifRr ds fodz; ds fy;s bl izdkj dh fdlh vuqefr dh vko';drk ugha gSA fodzhr lEifRr ds fy;s LVkEi ns;rk gsrq ftykf/kdkjh }kjk fu/kkZfjr nj :[email protected]& izfr ch?kk iq[rk fu/kkZfjr gS] ftlds vuqlkj fodzhr lEifRr dk ewY; :[email protected]& gksrk gS] ftl ij fu;ekuqlkj dqy 5 izfr'kr nj ls :i;k 9]27][email protected]& dk LVkEi 'kqYd vnk fd;k tk jgk gSA

fooj.k fodzhr lEifRr

xzke o rglhy dk uke [kkrk la0 [kljk [email protected] la0 fodzhr {ks=Qy

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On a perusal of the aforesaid recital in the sale deed it is evident that in the event the authority fails to obtain title over the land on account of any legal impediment in future, it shall be open to the authority to recover the entire consideration amount together with additional expenses referred to therein. Apart from this there is no other recital through out in the entire sale deed. There is no such agreement that if on any such default, the amount would be recoverable as arrears of land revenue.

At the very outset we may observe that the Division Bench order dated 04.04.2018 in the case of Rami Vs. State of U.P. (supra) does not appear to have adjudicated the present issue raised, even though the said case appears to have arisen out of a recovery in relation to consideration under a sale deed. The court refused to exercise discretion in the absence of any injunction in the suit that had already been fled in that case for cancellation of the sale deed. The transaction was however made subject to the outcome of the suit. The Division Bench judgment in the case of Shree Pal and Others (supra) has also not been noticed in the said judgment. Thus, the same would be not a ratio on the issue raised herein. It would theefore not be appropriate to dispose off this petition without answering the proposition advanced by the learned counsel for the respondent on the strength of the observation in the Division Bench judgment extracted hereinafter in the case of Shree Pal and Others (supra).

The Division Bench judgment in the case of Shree Pal and Others (supra) however proceeds to record findings widely and relevant part of the judgment is extracted herein below :-

"One more provision which is relevant is Section 12 as amended in State of U.P. Section 12 A as inserted in the State of U.P. by U.P. Act No. 20 of 1954 is as follows:

"12-A. Power to correct award.-(1) The Collector may, at any time but not later than six months from the date of award, or where a reference is required to be made under section 18, before making of such reference, correct any clerical or arithmetical mistake in the award either on his own motion or on the application of any person interested.

(2)The Collectors shall give immediate notice of any correction made in the award to all persons interested.

(3)Where any excess amount is proved to have been paid to any person as a result to the correction made under sub-section (1),such person shall be liable to refund the excess, and if he defaults. or refuses to pay, the same may be realised as an arrear of land revenue."

Section 12-A(3) provides that where any excess amount has been paid to any person as a result to the correction made under sub-section (1), such person shall be liable to refund the excess and if default is committed the same may be realised as an arrears of land revenue. Sri Satish Mandhyan, learned Counsel for the petitioners referring to Section 17(3-B) as well as section 12-A (3) contends that the said provisions are not applicable in the facts of the present case. Since as far as applicability of Section 12A (3) is concerned, the present is not a case for correction of the Award. He submits that in so far as Section 17(3-B) is concerned, the same is applicable when section 17(3-A) is applied i.e. where 80% compensation is paid by Collector before taking possession.

The provisions of Section 12-A(3) is applicable in the U.P. Section 17(3-B) provides that in the circumstances as enumerated thereunder, the compensation already paid to a tenure holder can be recovered as arrears of land revenue though the aforesaid provisions confined its application to the cases as enumerated therein for recovery of compensation as arrears of land revenue. It is relevant to notice that the recovery of compensation as arrears of land revenue is contemplated for recovery of compensation paid in excess to a tenure holder. In a case where compensation has been paid wrongly to a person, whether the same cannot be recovered as arrears of land revenue is a question which has arisen in the present case. When in a case on excess payment of compensation recovery as arrears of land revenue has been statutorily contemplated under the provisions of Act, we fail to see that why the same procedure shall not be adopted by the State in case of recovery of compensation wrongly paid to a person, who is held to be not entitled. If the State can recover the amount of compensation excess paid to a person surely it has jurisdiction to recover the same where it has wrongly been paid to a person. In the present case, the award made under section 11 has not been brought on record. In the State of U.P., the compensation is also paid according to 1997 Rules as noted above. In 1997 Rules when compensation is paid on the basis of agreement with a tenure holder there is a specific provision under 1997 Rules for recovery of such compensation as arrears of land revenue which is apparent from format of agreement as given in the Rules itself, The condition no. 5 has been mentioned in the format of the agreement as referred to in rule 4(2) which is to the following effect:

¼5½ ;fn [email protected];ksa [email protected];k fgrc) i{[email protected]{kdkjsa iwoZorhZ iSjk esa mfYyf[kr /kujkf'k ljdkj dks okil djus esa vlQy jgrk [email protected] gSa rks ljdkj dks mls Hkw&jktLo ds cdk;s ds :i esa olwy djus ;k ,slh /kujkf'k dh olwyh ds fy, izo`Rr fdlh fof/k ds v/khu dk;Zokgh djus dk vkns'k nsus dk iwjk vf/kdkj gksxk]

Thus, in the State of U.P., when compensation is paid according to agreement there is specific provision to recover the same as arrears of land revenue. Thus, the recovery of compensation already paid, as arrears of land revenue is not alien to the scheme of the Land acquisition Act and the Rules framed there under as applicable in the State of U.P. rather statutory provisions specifically provides for recovery of compensation as arrears of land revenue. Learned Counsel for the respondent has placed reliance on the Division Bench judgment of this Court reported in 2011 (9) ADJ 69 Shashi Agrawal Vs. State of U.P. in which writ petition was filed by the petitioner challenging the order dated 20.7.2009 of the Special Land Acquisition Officer directing for attaching the compensation received by the petitioner. The compensation was paid to the petitioner under the agreement. Special Land Acquisition Officer has also in the said case made a reference under section 30 of the Land Acquisition Act. The writ petition was dismissed. However, the issue as to whether the compensation already paid can be recovered as arrears of land revenue, has neither been gone into nor decided in the said."

The aforesaid ratio of the Division Bench therefore proceeds on the assumption that when in a case of excess payment of compensation the same can be recovered as arrears of land revenue, in view of the provisions of the Land Acquisition Act, 1894 (hereinafter referred to as "the 1894 Act") read with U.P. Land Acquisition (Determination of Compensation and Declaration of Award by Agreement) Rules, 1997 (hereinafter referred to as "the 1997 Rules"), then the Court holds that the same procedure can be adopted by the State in the case of compensation wrongly paid to a person who is held to be not entitled. It further states that if the excess paid compensation could be recovered by the State then it can also be recovered if it has been wrongly paid to a person by resorting to recover it as arrears of land revenue.

From a perusal of the judgment we find that it proceeded to discuss the provisions of the Land Acquisition Act, 1894 and the making of award by the Collector. Before making of a final award, the 1997 Rules can be invoked and if an agreement is entered into with any tenure holder for delivering possession on payment of compensation offered then the same can also form part of the award. Thus it is to avoid adjudication by the Collector that 1997 Rules can be resorted to and while entering into such agreement the concerned tenure holder has to enter into a statutory format agreement. The format agreement is appended as Appendix to the 1997 Rules which is extracted herein below :-

"FORM OF AGREEMENT

[See Rule 4(2)]

Agreement to be executed when land is acquired for public purpose by agreement between the persons interested and the acquiring body.

This agreement made this..................day of ..................

(5) if the owner/owners and/or interested party/parties fails/fail to refund to the Government the amount mentioned in the preceding para, the Government shall have the full right to recover the same as arrears of land revenue or order to proceed under any law in force for recovery of such amount;

(6) without prejudice to any other remedy for the enforcement of any refund or indemnity, the Government may recover any sum determined and certified by the Land Acquisition Officer................ to be due and payable by the owner/owners and interested party/parties to the Government by way of refund or otherwise under these presents as arrears of land revenue;

(7) ........................................."

However, after promulgation of the Right to Fair Compensation and Rehabilitation Act, 2013 the format of the said agreement has been altered slightly but the same also contains clause 4 which contains almost the same provision. This format has been issued in terms of the notification issued by the State Government dated 23.02.2016. A copy of the said notification has been placed by Sri Jauhari before the Court. Clause 4 of the said agreement format is extracted herein below :-

Þ¼4½ ;fn HkwLokeh iwoZorhZ iSjk esa mfYyf[kr /kujkf'k dz; fudk; dks okil djus esa vlQy jgrk [email protected] gSa rks dz; fudk; dks dysDVj ds ek/;e ls mls Hkw&jktLo ds cdk;s ds :i esa olwy djus ;k ,slh /kujkf'k dks olwyh ds fy;s izo`Rr fd;h fof/k ds v/khu dk;Zokgh djus [email protected]'k nsus dk iwjk vf/kdkj gksxkAß

A perusal of the said format which is currently in vogue and was also in vogue previously, authorises the authority to realise any excess or wrong payment made as compensation under the said agreement rules as arrears of land revenue.

Thus, there is no doubt that the legal position, in so far as 1894 Act, 2013 Act read with 1997 Rules, any compensation paid wrongly or in excess in terms of the aforesaid provisions, can be recovered as arrears of land revenue.

The question which arises here is, can this be done if no such agreement has been entered into. The Division Bench judgment in the case of Shree Pal and Others (supra) has also laid down that any amount wrongly paid can be recovered as arrears of land revenue. The observations extracted above take within its wide sweep all disbursements. They give a clear impression that the law applies universally to all such wrong payments. The phrases "we fail to see", "surely it has jurisdiction" and "wrongly been paid to a person" in the observations reinorce each other with special significance that prominently translates into a firm declaration of law. Even though the decision was in relation to payment of compensation through acquisition, yet the width of the observations travel beyond and take within its fold all wrong payments. Shri Jauhari for the respondent authority has also accordingly maintained and emphasized his submissions by urging that the said ratio squarely applies to all such transactions as presently involved, as such the process of recovery adopted cannot be termed as illegal. With due respect to the aforesaid observations of the Division Bench, we are not able to subscribe to the aforesaid broad view and the submissions of Sri Jauhari inasmuch as, it is the admitted case in the present petition that the land has been transferred under a sale deed simplicitor. It is not a sale arising out of any agreement containing any clause for refund as arrears of land revenue in the event of any default. It is undisputed that the sale deed was executed on the basis of offer and acceptance and not on the basis of any such agreement between the parties nor it is a sale deed containing any clause authorising the authority to claim it as arrears of land revenue. The consideration amount in the sale deed and its payment is not compensation but it is the sale price of the land on which stamp duty has been paid upon the document being registered under the Registration Act as a transaction of sale for consideration of an immovable property.

The exact portion of the judgment that requires to be considered is extracted herein under :-

"When in a case on excess payment of compensation recovery as arrears of land revenue has been statutorily contemplated under the provisions of Act, we fail to see that why the same procedure shall not be adopted by the State in case of recovery of compensation wrongly paid to a person, who is held to be not entitled. If the State can recover the amount of compensation excess paid to a person surely it has jurisdiction to recover the same where it has wrongly been paid to a person."

The observations quoted above in the Division Bench's order have far reaching consequences in matters arising out of transactions of immovable property through sale deeds inasmuch as the respondent authority is a body corporate constituted in terms of U.P. Industrial Area Development Act (Act No. 6), 1976. There is no doubt that the same is an instrumentality of the State Government and therefore it can also assume authority and proceed to take such action as may be permissible under the relevant statutes. It can acquire property otherwise also without resorting to acquisition or any statutory agreement.

We do not find any provision available for recovering the amount of consideration arising out of transactions of sale deeds having been executed in favour of the authority independent of statutory provisions as indicated above. A consideration that has passed on through a simplicitor sale deed cannot be termed as compensation which is received upon adjudication or through a statutory agreement.

In the absence of any such statutory authority available, the recovery proceedings as arrears of land revenue in a case of wrong and excess payment under a sale deed, therefore, will in our opinion have to be undertaken through any law permitting realisation of it as arrears of land revenue, provided there is a specific agreement to that effect or statutory clause for the same or otherwise by filing a suit subject to the law of limitation and other laws. Consequently, we refer the matter to be decided by a Larger Bench on the question framed below to be nominated by Hon'ble the Chief Justice for which papers may be placed by the Registrar (Listing) for doing the needful.

We therefore, find that the judgment of the Division Bench in the case of Shree Pal and Others (supra) may require a re-consideration, for an authoritative pronouncement by a larger Bench keeping in view the observations made by us herein above.

The question therefore which requires consideration is -

"Whether the law laid down by the Division Bench in the case of Shree Pal and Others (supra) correctly stipulates conferring powers on a Development Authority constituted under the 1976 Act as an instrumentality of the State Government to realise the amount of consideration paid under a sale deed as arrears of land revenue on the ground of wrong payment, keeping in view the fact that there is no statutory sanction for the same?"

Let papers be placed before Hon'ble Chief Justice for passing appropriate orders.

So far as the present dispute is concerned the petitioners may come up with an affidavit indicating the exact nature of the offer which they propose to make for settling the dispute either by way of payment or offering alternate land and its sale for making the excess payment good.

Order Date :- 18.4.2018

A. Verma