Himachal Pradesh High Court
Shyam Lal (Since Deceased) Through vs Ram Lok And Others on 18 September, 2017
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
CMPMO No.373 of 2016.
Date of decision: 18.09.2017.
Shyam Lal (since deceased) through his L.R.s Smt.Santosh Kumari and another .....Petitioners.
Versus
Ram Lok and others .....Respondents.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1No For the Petitioners : Mr.Dalip K.Sharma, Advocate. For the Respondents : Mr.Neeraj Gupta, Advocate, for respondent No.2.
Mr.Neeraj K.Sharma, Dy. A.G. with Mr.J.S.Guleria, Asstt. A.G., for respondent No.3.
Tarlok Singh Chauhan, Judge (Oral).
This petition is directed against the award passed by the learned Additional District Judge-I, Solan, District Solan,H.P. in the petition filed by the petitioners under Sections 18 and 30 of the Land Acquisition Act.
2. The petitioners had filed the reference petition on the ground that they had agreed to purchase the land measuring 2 bighas 14 biswas vide agreement dated 16.09.2006 with respondent No.1. However, the same was notified for acquisition for the benefit of respondent No.2 'M/s Gujarat Ambuja Limited' vide notification in this behalf issued on 27.06.2008 for establishment of Cement Grinding Unit. The reference petition was filed seeking apportionment on the ground Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 19/09/2017 12:37:45 :::HCHP 2 that on the basis of the subsisting agreement vide which it was alleged that the petitioners had paid the amount in cash in pursuance to the .
agreement to respondent No.1,whereas, for remaining amount cheque was issued but the cheque was received back by the petitioners by making cash payment duly endorsed at the back of the cheque. The petitioners being prospective buyers of the land and having interest in the land, therefore, were entitled for compensation out of the award amount. r
3. Reply on behalf of respondent No.1 was filed wherein various preliminary objections regarding maintainability, lack of privity of contract and limitation etc. were raised. On merits, it was contended that the petitioners are having no right, title and interest over the amount regarding which a reference has been sent to the Court by the Land Acquisition Collector and the petition was barred by the principle of resjudicata as Civil Suit filed by the petitioners on the basis of the alleged agreement had already been dismissed. It has been stated that petitioners did not enter into an agreement to purchase the land of respondent No.1. It was further averred that the agreement has otherwise come to an end as the same was valid for six months and further it was specifically denied that respondent No.1 received any money in cash or cheque from the petitioners.
4. Respondent No.2 in its reply raised various objections including maintainability and locus-standi of the petitioners.
5. The learned reference Court framed the following issues:-
"1. Whether the petitioners being prospective buyers of the land are having interest in it and are entitled for the compensation of the award amount, if so, to what extent? OPP.::: Downloaded on - 19/09/2017 12:37:45 :::HCHP 3
2. Whether the petition is not maintainable in the present form? OPR-1&2.
.
3. Whether the petitioners have no locus-standi to file the present petition? OPR-1&2.
4. Whether the petition is barred by law of limitation? OPR-
1&2.
5. Whether the petition is barred by principle of resjudicata?
OPR-1&2.
6. Whether the petition is based on certain agreements which have been fabricated and forged by the petitioners, as alleged? OPR-1&2.
7. Relief."
6. The learned reference Court after recording the evidence and appreciating the same dismissed the reference petition.
7. Aggrieved by the decision rendered by the learned reference Court, the petitioners have filed the instant petition.
8. At the outset, it may be observed that the instant petition is clearly not maintainable in view of provisions as contained in Section 54 of the Land Acquisition Act. It is more than settled that where a specific remedy is provided under a statute, then the remedy under Article 227 of the Constitution of India cannot be resorted to.
9. It appears that the instant petition has been filed solely with the purpose of avoiding payment of court fee. Any how, even if, it is assumed though not conceded, the petition is not maintainable, even then, as per the case set up by the petitioners themselves, they were only prospective buyers and had even failed to prove that any payment had been made by them at the time of agreement or any period subsequent thereto.
10. It is more than settled that if a non-testamentary instrument creates a charge of the value of `100/- or upward, the document must ::: Downloaded on - 19/09/2017 12:37:45 :::HCHP 4 be registered under Section 17(1) (b) of the Registration Act, whereas, admittedly there is no registered document produced by the petitioners .
so as to enable this Court to conclude that the petitioners had a subsisting interest over the land in dispute.
11. PW-1, Smt.Santosh Kumari has tendered in evidence agreement Ex.PW-1/B. She categorically admitted that the agreement had not been executed in her presence and was further not in a position to substantiate the plea regarding the payment of money. As per her statement, she was never involved by her husband in the purchase of land. No witness of the agreement was examined. There was no other evidence led by the petitioners and whatever evidence has been led is highly deficient to prove either the contract or the payment having been made. The petitioners have even failed to produce any receipt of payment by cash or cheque.
12. Thus, the learned Court below committed no illegality or irregularity by concluding that the petitioners had failed to prove the agreement in question and that apart had further failed to prove the payment by cash or cheque having been made to respondent No.1. The award does not suffer from any illegality or perversity so as to call for any interference by this Court. Accordingly, this petition is dismissed. Pending application, if any, also stands disposed of. 18th September, 2017. (Tarlok Singh Chauhan), (krt) Judge.
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