Allahabad High Court
Sri S.K. Upadhyay S/O Late Sri Kailash ... vs State Of U.P. Through Secretary And Ors. on 31 July, 2007
Equivalent citations: AIR 2008 (NOC) 755 (ALL.), 2008 (1) ALL LJ 331, 2008 (2) ABR (NOC) 285 (ALL.) = 2008 (1) ALJ 331 (DB), 2008 A I H C 928, (2007) 103 REVDEC 667, (2007) 69 ALL LR 415
Author: B.S. Chauhan
Bench: B.S. Chauhan, Rakesh Sharma
JUDGMENT B.S. Chauhan, J.
1. The petitioner, holding Power of Attorney on behalf of Ram Ugrah, Ram Darash and Ram Sumer, who are the tenure holders in respect of the land subjected to the acquisition proceedings, has questioned the validity and legality of the order dated 22.03.2007, which is founded on an order passed by the Commissioner, Gorakhpur Division, Gorakhpur on 20.03.2007,. whereby the Commissioner has approved the proposed Award in respect of 07.109 hectares of land, situate in Village Hamidpur, Tappa-Khutahan, Pargana Haveli, Tehsil Sadar, District Gorakhpur.
2. We have heard Shri I.N. Singh, learned Counsel for the petitioner and the learned Standing Counsel appearing on behalf of the respondents.
3. The grounds for assailing the impugned order are that the Commissioner has acted in contravention of the provisions of Section 15A of the Land Acquisition Act, 1894 (hereinafter called the Act), read with the provisions of the Land Acquisition Manual, which has prejudiced the claim of the tenure holders, and the order ignores the report dated 10.07.2006, which has resulted in a totally incorrect and arbitrary fixation of the rate of compensation payable to the tenure holders, and further the Commissioner has failed to exercise the power vested in him in terms of the Government Order dated 02.09.1994 which has been brought on record through a supplementary affidavit filed on behalf of the petitioner.
4. Learned Standing Counsel, on the other hand, has urged that the order impugned does not call for any interference as the Commissioner has exercised his powers under the Act to approve the proposed Award which cannot be questioned by the petitioner in these proceedings and the petitioner can raise his grievances with regard to the quantum of compensation as and when the Award is finally made by the Collector under Section 11 of the Act. In rejoinder learned Counsel for the petitioner has urged that the State Government did not exercise its powers under Section 15A and the application filed by the tenure holders annexed as Annex. 3 to this petition dated 16.01.2006 should have been disposed of by the State Government, and therefore, the petitioner is entitled for the relief of issuance of an appropriate direction in this regard.
5. We have examined the rival contentions of the learned Counsel for the parties and perused the record.
6. The facts as unfolded in the petition indicate that the tenure holders upon having come to know about the proposed Award, moved an application on 16.01.2006 (Annex. 3) before the Director, Land Acquisition Directorate, Board of Revenue, Government of Uttar Pradesh, Lucknow. The petitioner represents three of such applicants whose names have been indicated in the Power of Attorney appended as Annex. 1 and whose names find place at SI. Nos. 22, 23 and 24 of the application dated 16.01.2006. The said application appears to have been processed by the Director, Land Acquisition and a letter was addressed to the District Magistrate/Collector, Gorakhpur on 13.04.2006 calling for comments on the same within 15 days. The Commissioner, who according to the Notification dated 02.09.1994 is the Approving Authority under Section 11(1) of the Act, called upon the Special Land Acquisition Officer to proceed in accordance with law and to intimate him accordingly. The District Magistrate vide his letter dated 02.05.2006 sent his comments with a request that appropriate orders be passed under Section 15A of the Act. In response thereto, the Director on 22.06.2006 intimated the Collector, Gorakhpur that the desired comments in detail had not been furnished, and as such, called for specific comments on the application moved by the tenure holders. The Collector responded vide letter dated 10.07.2006 along with his detailed report (Annex. 8).
7. It appears that since the Commissioner is the Authority to approve the proposal of Award under Section 11 of the Act, a report (Annex. 10) after making spot inspection was submitted before the Commissioner by the Additional District Magistrate who was also the Special Land Acquisition Officer, Gorakhpur. The Director, Land Acquisition had again sent an intimation to the District Magistrate on 25.09.2006 calling upon the District Magistrate/Gorakhpur to do the needful in accordance with the provisions of the Act and the Government Orders framed thereunder, and further informed the District Magistrate, Gorakhpur that the power to take a decision under Section 15A of the Act vests in the State Government.
8. The Commissioner on the other hand, called upon a report from the District Magistrate vide letter dated 07.12.2006 and also summoned the application that had been moved moved by the tenure holders under Section 15A of the Act. The Commissioner then issued a notice dated 17.01.2007 (Annex. 12) to the Development Authority and some other officers, calling upon them to attend the office in order to consider the question of approval to the proposed Award. From the documents available on record, there does not appear to be any communication from the State Government in respect of the disposal of the application under Section 15A of the Act. The Commissioner thereafter appears to have passed the order on 20.03.2007 which has resulted in the impugned order communicated to the District Magistrate dated 2.2.03.2007, whereby, the Commissioner has approved the report which was submitted after spot inspection and the proposed Award made by the Collector.
9. The entire correspondence, therefore, does not indicate the disposal of the application under Section 15A of the Act. The power exercisable under the aforesaid provision can be appreciated from a perusal of the same which is quoted herein below.
15-A. Power to call for records, etc.- The appropriate Government may at any time before the award is made by the Collector under Section 11 call for any record of any proceedings (whether by way of enquiry or otherwise) for the purpose of satisfying itself as to the legality or propriety of any finding or order passed or as to the regularity of such proceedings and may pass such order or issue such direction in relation thereto as it may think fit:
Provided that the appropriate Government shall not pass or issue any order or direction prejudicial to any person without affording such person a reasonable opportunity of being heard.
10. The said provision makes it clear that the State Government has the power to call for the records of any proposed Award and the acquisition proceedings in order to satisfy itself about the correctness or otherwise of such proceedings prior to the making of the Award under Section 11 of the Act. The power under Section 15A is distinct from the power under Section 11(1) of the Act. The aforesaid provision requires approval from the competent Authority which in the present case is already defined under the Notification dated 02.09.1994 and a procedure prescribed in order to ensure that there is no error in the process adopted for acquisition and determining compensation.
11. The scope of the provisions of Section 11(1) of the Act considering the Notification delegating the power upon the Collector and Divisional Commissioner depending upon the amount of the Award likely to be made, was considered by the Apex Court in State of Bihar and Ors. v. D.N. Singh and Ors. ; and State of Bihar and Ors. v. Prem Kumar Singh and Ors. , wherein the judgment and order of the Patna High Court held that in the facts of that case the power under Section 11(1) of the Act could not have been exercised by the Commissioner.
12. The issue as to whether the total compensation computed by the Collector as payable to all the claimants together would determine the jurisdictional issue under Section 11(1) or it would be according to the amount payable to single claimant, was left open.
13. The State Government can call for the records of any proceeding to satisfy itself as to the legality or propriety of the action taken in such matters by the Collector or the concerned Authority became the subject matter of consideration before the Apex Court in the case of Vijayadevi Navalkishore Bhartia and Anr. v. Land Acquisition Officer and Anr. , wherein the Court reconsidered the aforesaid judgment referred to herein above and also considered the scope of the provisions of Section 15A of the Act and held as under.
From the scheme of the Act, it is seen that the power of inquiry under Section 11 vests with the Collector who has to issue notice to the interested persons and hear the interested persons in the said inquiry. He also has to determine the measurements of the land in question and on the basis of the material on record decide the compensation which in his opinion should be allowed for the land and if need be, he can also apportion the said compensation amongst the interested persons. The nature of inquiry which statutorily requires the interested parties of being heard and taking a decision based on relevant factors by the Collector shows that the inquiry contemplated under Section 11 is quasi-judicial in nature, and the said satisfaction as to the compensation payable should be based on the opinion of the Collector and not that of any other person. Section 11 under the Act has not provided an appeal to any other authority as against the opinion formed by the Collector in the process of inquiry conducted by him. What is provided under the proviso to Section 11(1) is that the proposed award made by the Collector must have the approval of the appropriate Government or such officer as the appropriate Government may authorise in that behalf. In our opinion, this power of granting or not granting previous approval cannot be equated with an appellate power. Black's Law Dictionary, 6th Edn., defines "approval" to mean an act of confirming, ratifying, assenting, sanctioning or consenting to some act or thing done by another. In the context of an administrative act, the word "approval" in our opinion, does not mean anything more than either confirming, ratifying, assenting, sanctioning or consenting. It will be doing violence to the scheme of the Act if we nave to construe and accept the argument of the learned Counsel for the respondents that the word approval found in the proviso to Section 11(1) of the Act under the scheme of the Act amounts to an appellate power. On the contrary, we are of the opinion that this is only an administrative power which limits the jurisdiction of the authority to apply its mind to see whether the proposed award is acceptable to the Government or not. In that process for the purpose of forming an opinion to approve or not to approve the proposed award the Commissioner may satisfy himself as to the material relief upon by the Collector but he cannot reverse the finding as if he is an Appellate Authority for the purpose of remanding the matter to the Collector as can be done by an Appellate Authority; much less can the Commissioner exercising the said power of prior approval give directions to the statutory authority in what manner he should accept/appreciate the material on record in regard to the compensation payable. If such a power of issuing direction to the Collector by the Commissioner under the provision of law referred to herein above is to be accepted then it would mean that the Commissioner is empowered to exercise the said power to substitute his opinion to that of the Collector's opinion for the purpose of fixing the compensation, which in our view is opposed to the language of Section 11 of the Act. Therefore, we are of the opinion that the Act has not conferred an appellate jurisdiction on the Commissioner under Section 15(1) proviso of the Act. This conclusion of ours is further supported by the scheme of the Act and Section 15A of the Act which is also introduced in the Act simultaneously with the proviso to Section 11(1) under the Act 68 of 1984. By this amendment, we notice that the Act has been given a power akin to the appellate power to the State Government to call for any records or proceedings of the Collector before any award is made for the purpose of satisfying itself as to the legality or propriety of any finding or order passed or as to the irregularity of such proceedings and to pass such other order or issue such direction in relation thereto as it may think fit. Therefore, it is not as if the acquiring authority, namely, the appropriate Government even if aggrieved by the fixation of compensation by the Collector has no remedy. It can very well exercise the power under Section 15A and pass such orders as it thinks fit, of course, after affording an opportunity to such person who is likely to be prejudicially affected by such order of the appropriate Government, therefore, it is clear that the statute when it intended to give appellate or revisional power against the finding of the Collector in the fixation of compensation it has provided such power separately in Section 15A of the Act. Therefore, in our opinion, if the Commissioner while considering the proposed award of the Collector under the proviso to Section 11(1) of the Act to grant or not to grant approval thinks that the order of the Collector cannot be approved, he can at the most on the administrative side bring it to the notice of the appropriate Government to exercise its power under Section 15A of the Act, but he cannot as in the present case on his own exercise the said power because that power under Section 15A is confined to the appropriate Government only. Therefore, we have to negative the argument of Mr. Joshi that it is open to the Commissioner while considering the grant of approval to exercise the power either found in Section 15A of the Act or similar power exercising his jurisdiction under proviso to Section 11(1) of the Act.
14. The Apex Court after taking notice of two earlier decisions was of the opinion that the Approving Authority while exercising powers under Sub-section (1) of Section 11 is not an Appellate Authority over the Collector so as to re-determine or re-appreciate the material on record with regard to the compensation payable. It has been further indicated therein that the Approving Authority cannot substitute or reverse the findings of the Collector on this issue. The power exercisable therein is an administrative power, and in case there is any such requirement of re-assessment, then the Approving Authority can send it to the State Government, as such powers are preserved with the State Government only under Section 15A of the Act. However, the Apex Court did not finally decide the issue and in view of the two earlier decisions of the Apex Court it found it fit to refer it to a larger Bench. The said matter was placed before a 3-Judges Bench of the Apex Court, but in view of the subsequent developments in the case to the effect that the final Award had already been challenged by seeking Reference to the Civil Court, the Special Leave Petition was dismissed, leaving it open to the appellants therein to raise the questions before the Reference Court. The final order in the said case dated 12.02.2004 is quoted below.
A large tract of land situate in Akola city was sought to be acquired and for that purpose a Notification was issued on 3rd June, 1999, under Section 4 of the Land Acquisition Act, 1984 (hereinafter referred to as 'the Act') which was followed by another Notification under Section 6 of the Act on 25th November, 1999. Subsequently a notice was sent to the appellants herein by the Land Acquisition Officer for filing their claim for determining the compensation. The Land Acquisition Officer prepared a draft Award and sent it to the Commissioner of the Division for his prior approval The Commissioner did not agree with the proposed compensation awarded to the appellants by the Land Acquisition Officer as he was of the view that the land has not got the potentiality of non-agricultural land and remitted the said Award to the Land Acquisition Officer for being delivered. Subsequently, the Land Acquisition Officer delivered the Award. The appellants herein challenged the order of the Commissioner, remitting the Award to the Land Acquisition Officer before the Bombay High Court. The High Court dismissed the writ petition. It is against the said order and judgment, the appellants are in appeal before us.
When the matter was taken up for hearing, it was brought to our notice that the appellants have already challenged the Award by seeking reference to the Civil Court and the matter was pending adjudication. Since all the questions which are raised in this appeal are available to the appellants to be raised before the Reference Court, we, therefore, are not inclined to interfere in the matter.
The appeal is, accordingly, dismissed without going into its merits. There shall be no order as to costs.
15. From a perusal of the law as discussed by the Apex Court it is clear that the State Government under Section 15A has the power to re-assess the correctness or otherwise of any proceeding at any time before the Award is made by the Collector under Section 11 and may pass such orders or issue Much directions in relation thereto as it may think fit. The State Government has however been given this power subject to the condition that no such order shall be passed or issued which may be prejudicial to any person without affording such person a reasonable opportunity of being heard.
16. In view of the above, it is evident that the power of the Commissioner under Section 11(1) is administrative in nature and limited to approval, which means confirming, ratifying, assenting, sanctioning or consenting to some act or thing done by another. The very act of approval in part, the act of passing judgment, the use of discretion and the determining as an adjudication therefrom unless limited by the context of the Statute. Vide Aruna Shanker v. State of U.P. and Anr. 1984, All. LJ., 1031. Thus, he cannot exercise the appellate or revisional powers. He may examine that the Award should not suffer for want of jurisdiction, and as to whether the Award had been made by the Collector authorised to do so in view of the provisions of Section 3C of the Act, but he cannot re-appreciate the evidence and re-fix the market value or substitute his own calculations in place of the valuation determined by the Collector.
17. Having examined the position of law, we find that the order impugned passed by the Commissioner does not appear to be an order under Section 15A of the Act. The said order does not even refer to any order having been passed by the State Government in this regard. The said order at the best is an order approving the proposed Award under Sub-section (1) of Section 11 of the Article The said order cannot be presumed to have disposed of the application filed by the tenure holders under Section 15A of the Act. To us, it appears that the State Government has not yet proceeded to decide the said application on which comments had already been called for from the Collectorate and intimation was given that such a power vested only in the State Government. The petitioner has categorically stated in paragraph 18 that till date the final Award has not been passed by the Collector, and as such such, an application under Section 15A of the Act is still to be considered and disposed of by the State Government to determine the legality or propriety of the proceedings undertaken by the Collector as approved by the Commissioner.
18. In this view of the matter it is still open to the petitioner to question the correctness of the proceedings including the order dated 22.03.2007 before the State Government, in the event the application under Section 15A is still pending before it.
19. Keeping in view the aforesaid facts and circumstances and the law referred to herein above we dispose of this writ petition with a direction to respondent No. 1 to proceed to decide the application filed by the tenure holders including those represented by the petitioner dated 16.06.2006 (Annex. 3) in case the same has already not been disposed of, within a period of six weeks from the date of presentation of the certified copy of this order before the respondent No. 1. In case it has already been decided and the Award has already been made, it shall be open to the affected persons to agitate all such issues available to them on fact and law before the Reference Court. In the event the Award has not been finally pronounced by the Collector, then the same shall not be pronounced till the matter is finally disposed of by the State Government as directed herein above.