Gujarat High Court
Krishnakunj Co-Operative Housing ... vs Special Land Acquisition Officer (X), ... on 26 August, 1988
Equivalent citations: AIR1989GUJ165, (1989)1GLR117, AIR 1989 GUJARAT 165
JUDGMENT R.A. Mehta, J.
1. By this petition, the petitioners seek a writ of mandamus or directions of quashing and setting aside the impugned award of 'Nil' compensation under S. 48(2) of the Land Acquisition Act (hereinafter referred to as' the Act') and for a further direction to award compensation at 25'% of the value of the lands in question or in the alternative directing the respondent-Land Acquisition Officer to pass a fresh award under S. 48(2) of the Act. The land was earlier proposed to be acquired and notification under Ss. 4 and 6 were issued on 5-3-1981 and 24-2-1984 respectively. The acquisition was proposed for public purpose of Kalol Growth Centre. The final development plan under the Gujarat Town Planning and Urban Development Act was submitted to the government on 18-1-1983 for sanction under S. 16 of the Act. Under that development plan, the land proposed to be acquired was reserved for the said purpose. S. 9 of L. A. Act notices for determination of compensation were issued. However, no award was made. The petitioners had therefore filed Special Civil Application No. 3753 of 1985 for a direction to make an award and make payment of compensation on behalf of the respondents, a statement was made that the award would be declared before 31-3-1986 and therefore the petition was withdrawn. As the award was not made within the assured time. Misc. Civil Application No. 394 of 1986 was filed for taking appropriate action against the respondents under the Contempt of Courts Act. However, in that proceeding, a statement was made on behalf of the respondents that the award will be declared on or before 30-61986.
(Para 9)
2. On,30-5-1986, the government withdrew from the acquisition and therefore the award was not made, Thereupon, Special Civil Application No. 3012 of 1986 was filed for a direction to the respondents to make an award under S. 48(2) of the Act and for releasing the land from reservation under the development plan under the Gujarat Town Planning and Urban Development Act. Another petition being Special Civil Appin. No. 1041 of 1987 was also filed for direction, to the respondents to make an award under S. 48(2) of the Land Acquisition Act and for other prayers against reservation. In that petition, the High Court had passed an order to make an award within the specified time which was extended from time to time and ultimately the respondents passed the impugned award on 18-2-1988 awarding 'Nil' compensation under S. 48(2) of the Act.
3. The grounds claiming compensation have been summarised in para I I of the petition; mainly it is claimed that Rs. 12/- per sq. mt. should have been awarded as damages as the lands could not be developed from the period S. 4 notification was issued till it was withdrawn (i.e. from 1981 to 1986); Rs. 10/per sq. mt. should have been awarded as damages as crops could not be raised; costs were incurred in the litigation and that were required to be compensated. It was also contended that as no loans could be raised on the land for better agriculture and better crops, Rs. 10/- per sq. mt. should have been awarded.
4. The Land Acquisition Officer negatived all these contentions and held that the petitioners have all along remained in possession and enjoyment of the land and cultivated the land and therefore there is no damage suffered by them on account of agricultural loss. He also came to the conclusion that even though the acquisition was withdrawn, the reservation under the Gujarat Town Planning and Urban Land Development Act has continued and since this land has been under reservation under that Act, the petitioners could not have developed or made construction on these lands and therefore on that count, they have not suffered any damage and they are not entitled to any damage. The Land Acquisition Officer also came to the conclusion that on the quantum of compensation, no particulars were given and no evidence was led regarding the actual damage suffered under any head by any of the land owners. Therefore he declared a 'Nil' award under S. 48(2).
5. The first petitioner is the Cooperative Housing Society; the second and third petitioners are land-holders and fourth petitioner which is Kalol Khedut Mandal is claiming to be an association representing large number of landowner, agriculturists numbering about 700 and in this composite petition, they have claimed the relief of quashing of the award and awarding compensation to the land-owners or in the alternative, remanding the matter back to the Land Acquisition Officer for passing a fresh award.
6. In the affidavit- in-reply filed by the fourth respondent, it is stated that such a composite petition is not maintainable and the petitioner No. 4 is not a registered or recognised association. It is also contended that each individual landholder has a different case on facts and each one has to prove the actual damage suffered by him and in such a case, composite petition is not maintainable. It is also contended that if any person interested in the land is aggrieved by the award of the Land Acquisition Officer under S. 48(2), the law provides for ample remedies under S. 48(3) by way of reference to the District Court which is a trial Court and judicial forum where the evidence oral as well as documentary can be led and the Court can decide about the damages and make an appropriate award and by passing that statutory effective and efficacious remedy, the petitioners cannot rush to the High Court under Art. 226 of the Constitution more particularly in view of the highly disputed questions of facts to be decided on the evidence to be led and decided at the trial. Thus the maintainability of the petition is objected at the threshold.
7. The learned Counsel for the petitioners 11 has submitted that the award of the Land~ Acquisition Officer is a nullity and the remedy! under S. 48(3) by way of reference to the District Court is not really an efficacious remedy. It is submitted that the Land Acquisition Officer did not give any opportunity to hundreds of landowners to give evidence and therefore there was denial of the principles of natural justice and therefore the impugned award is a nullity and the High Court should direct the Land Acquisition Officer to pass a fresh award after giving an opportunity to the landowners to lead evidence and when there are hundreds of landowners, to ask each one of them to seek reference would hardly be practicable and if the High Court refuses to interfere, then these citizens will have no remedy.
8. The petitioners have relied on the judgment in the case of East India Company v. Official Liquidator, (1970) 11 Guj LR 457 for the proposition that an order or decision given in breach of audi alteram partem is void. It was an observation made in connection with the decisions of the Tribunals. The Land Acquisition Officer acting under S. 48(2) of the Act cannot be said to be a Tribunal. Moreover, it cannot be said that the Land Acquisition Officer has committed breach of the principles of natural justice. He has issued notices to the parties to file their claims and produce the evidence in support thereof. Although the claims were filed, evidence in support thereof was not filed. It is also to be noted that at the instance of the petitioner, the Land Acquisition Officer was bound by the High Court directions to pass the award as per the fixed time. The Land Acquisition Officer has considered the objections and claims for damages and compensation and he has passed an award for'Nil' compensation for the reasons stated in his award. We are not going into the merits of his findings. We are considering this only as a preliminary question about challenge to the award under Art. 2266 of the Constitution. The Land Acquisition Officer who had the Jurisdiction to decide the question of, compensation had issued notices to the, parties; parties had appeared before him and he has given his award with his findings and: the reasons. Such an award cannot be said to be without jurisdiction or a 'nullity' in any, manner. Moreover, whenever Land ,Acquisition' Officer gives his award of compensation, adequate, inadequate or nil,: the law provides for alternative and efficacious remedy before the judicial forum by way of reference where even the Court-fees are not, required to be paid in view of the Full Bench, judgment of this Court in Lady Janumati I s case (1973 (14) Guj LR 537). In that proceeding, each landowner will have full opportunity to lead his evidence, get it tested and the Court will come to the conclusion whether and what amount of compensation' is required to be awarded to each such claimant by the Court. It is the apprehension of the petitioners that when 'nil' award is passed, the District Court cannot decide the question whether the compensation is payable or not. All questions that arise before the District Court have to be decided and answered. If under a particular head or for a particular reason, the Land Acquisition Officer decides not to award any I compensation, it is still open to the Court to hear the reference and decide otherwise by awarding compensation.
9. Even if the Land Acquisition Officer 1 erroneously refuses to award any compensation it cannot be said that his award is a nullity and therefore the Supreme Court judgment in the case of Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur, (1987) 4 SCC 525 (AIR 1987 SC 2186), is of no assistance to the petitioners, wherein it has been held that writ petition challenging a null and void order is: maintainable notwithstanding existence of an I alternative remedy under the statute. It is also to be noted that even if the petition is maintainable, it is discretionary for the High Court to exercise or not to exercise the jurisdiction under Art. 226 of-the Constitution and in a case where highly disputed questions and other questions are required to be decided ,on oral and documentary evidence, High Court may refuse to exercise constitutional jurisdiction and direct the party to resort to ordinary remedy provided by law.
10. In the present case, each landowner will have to lead evidence in Court to satisfy the Court about the actual damage suffered by him for which compensation is payable under S. 48(2) of the Act. He will have not only to quantify, but he will have to justify and satisfy the Court about such quantum as well as the liability to pay compensation. This can be done properly and satisfactorily, if a proper trial takes place. The law has therefore made ample provisions under the Act by way of S. 48(3) forgetting such amount determined by the Court subject to further appeal by either side to the High Court. When such alternative efficacious remedy is provided by law, the High Court cannot entertain writ petition under Art. 226 of the Constitution and decide the questions which properly arise for determination in the Reference.
11. In view of the aforesaid discussion, it is clear that the preliminary objection against maintainability of this petition must succeed and the petition deserves to be dismissed on the ground that alternative and efficacious remedy provided by S. 48(3) of the Act is available. Hence this petition is dismissed summarily at the admission stage. Notice discharged.
12. Petition dismissed.