Himachal Pradesh High Court
Shri Hari Singh Son Of Shri Jiwan Singh vs ) on 11 November, 2021
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 11th DAY OF NOVEMBER 2021
.
BEFORE
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
CIVIL WRIT PETITION No. 2863 of 2019
Between:-
SHRI HARI SINGH SON OF SHRI JIWAN SINGH,
RESIDENT OF BHUNTAR SHAMSHI,
DISTRICT KULLU, HP.
.....PETITIONER
(BY MR. AMAN PARTH SHARMA, ADVOCATE)
AND
1. THE STATE OF HMACHAL PRADESH THROUGH
PRINCIPAL SECRETARY (PUBLIC WORKS)
HP SECTT. SHIMLA.
2. THE COLLECTOR, LAND ACQUISITION,
HPPWD MANDI, HP.
3. EXECUTIVE ENGINEER, HPPWD,
MANDI DIVISION NO. 1 MANDI.
.....RESPONDENTS
(BY SH. KUNAL THAKUR, DEPUTY ADVOCATE
GENERAL WITH SH. SUNNY DHATWALIA,
ASSISTANT ADVOCATE GENERAL)
_______________________________________________________
This petition coming on for hearing this day, the
Court passed the following:
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2
ORDER
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The petitioner's challenge is to an office order dated 25.3.2019, whereby respondent No. 1 rejected petitioner's representation for passing supplementary award in respect of awarding him compensation for the fruit bearing trees standing on his land acquired by the respondents.
2. Admitted r factual position may be noticed hereinafter:
2(i) Takoli-Panarsa-Prashar road was constructed by the respondent Public Works Department during the year 1983-
84. Land acquisition proceedings were initiated by the respondents-State in the year 1998. One bigha land comprised in Khasra Nos. 113 and 433/118/1 owned and possessed by the petitioner was also acquired. Award was passed by the Land Acquisition Collector, Mandi on 18.9.1998 awarding compensation for the land so acquired. In respect of the fruit bearing/non-fruit bearing trees standing on the land under acquisition it was observed in the award that the value thereof had not been assessed by the concerned departments, therefore, supplementary award will be passed after receipt of the assessment. The relevant para of the award dated 18.9.1998 reads as under:::: Downloaded on - 31/01/2022 23:16:28 :::CIS 3
" V. One house structure are being acquired. However, some fruit trees/non-fruit trees are .
standing on the land under acquisition. The cost of fruit trees assessed by the concerned department. The assessment of house structure are still awaited from the expert department. As such the supplementary award will be announced after the receipt of assessment."
2(ii) The petition preferred by the petitioner under Section 18 of the Land Acquisition Act was decided by the learned District Judge on 31.8.2011. In the petition, the petitioner had prayed for awarding him compensation for fruit bearing trees standing on his acquired land. As per the award passed on 31.8.2011 by the learned District Judge, the respondents did not dispute before the learned Reference Court that the fruit bearing trees were standing on the acquired land.
The defence of the respondents was that the assessment of those trees had not been received from the concerned departments i.e. Horticulture and Forest departments.
Therefore, they took up a stand that the supplementary award would be passed after receipt of valuation report from the concerned departments. Learned District Judge observed in the award that since the supplementary award had not been ::: Downloaded on - 31/01/2022 23:16:28 :::CIS 4 passed at that time with respect to the fruit/non-fruit bearing trees, therefore, the Court had no jurisdiction to assess on its .
own the value of the trees, in the reference petition. It will be appropriate to extract hereinafter following paras from the award dated 31.8.2011 passed in the reference petition:
"10. In the present case, the petitioner has also demanded compensation for fruit bearing trees which were standing on the land acquired. The respondent, in the present case, has not disputed that the fruit bearing trees were not standing on the acquired land, but according to him, the assessment of those trees was not received from the Horticulture and Forest Deptt. The respondent also took the plea that the supplementary award would be passed after the receipt of the report from the concerned departments. The award has also been placed on the file. Perusal of the same shows that in page No. 3, it has been mentioned that the supplementary award will be announced after receipt of the report from the concerned departments. Since, the award has not yet been passed by the respondent regarding the fruit bearing trees, as such, this court has no jurisdiction to assess the value of the trees.
11. Learned counsel appearing for the petitioner has vehemently argued that the award in the present case was passed on 18.9.1998 and ::: Downloaded on - 31/01/2022 23:16:28 :::CIS 5 13 years have elapsed, but no award has yet been passed for the fruit bearing trees. In such .
situation, it is clear that the value of the trees has not been given to the petitioner. This argument is not liable to be accepted. No efforts have been made by the petitioner to get the said award passed nor he approached to the concerned departments nor the Hon'ble High Court with a view to pray to direct the respondent to pass the supplementary award regarding acquisition of the trees as well as the structures. The jurisdiction of this court under section 18 of the Act is confined only to find out that assessment of compensation has been done by the Collector property or not.
This court has no jurisdiction to give the relief regarding which the award has not yet been passed. The sine quo non for determining the reference petition under section 18 of the Act is the award passed by the Collector. When no award is passed, no reference petition under section 18 of the Act is maintainable before this court.
12. It is unfortunate that the respondent in the present case has not passed the supplementary award regarding the fruit bearing trees as well as regarding the structures even after passing of the present award which was passed way back in the year 1998. Such type of attitude is against the spirit of "Welfare State".::: Downloaded on - 31/01/2022 23:16:28 :::CIS 6
13. In view of the discussion made above, the petitioner is not entitled for enhancement of .
compensation which was awarded to him on account of the acquisition of the land. However, the petitioner is at liberty to move the appropriate application/reference as and when the supplementary award is passed. Issue No. 1 is answered accordingly."
2(iii) Since the supplementary award had not been passed by the competent authority, the petitioner therefore was compelled to institute writ petition bearing No. 1270 of 2018 before this Court. The writ petition was decided on 13.6.2018 with following operative directions:
"3. Leaving the questions of law open, a direction is issued to the respondent authority to consider and decide the petitioner's representation, in accordance with law, by affording due opportunity of hearing/ representation to the petitioner, within a period of four weeks from the date of receipt thereof. Petitioners are at liberty to place additional material on record.
4. Needless to add, if the order is not in favour of the petitioner, the authority shall assign reasons while deciding the same, which shall be communicated to the petitioner. Liberty is ::: Downloaded on - 31/01/2022 23:16:28 :::CIS 7 reserved to the petitioner to approach the Court, if need so arises subsequently."
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2(iv) In compliance to the judgment, the petitioner preferred representation to the Collector, Land Acquisition, HPPWD, Mandi on 19.6.2018 requesting him to pass the supplementary award for granting him compensation in respect of the trees standing on the acquired land. The representation was dismissed by respondent No. 1 on 25.3.2019. Aggrieved, the petitioner has preferred instant writ petition.
Contentions
3. Learned counsel for the petitioner argued that respondent No. 1 i.e. Principal Secretary to the Public Works Department did not have jurisdiction to decide the issue of passing the supplementary award in respect of the fruit bearing trees standing on the acquired land of the petitioner. The jurisdiction to pass the order on the representation so preferred by the petitioner in terms of the judgment rendered in CWP No. 1270 of 2018 lay with respondent No. 2 i.e. Land Acquisition Collector. Therefore, the impugned order having been pssed by an authority which lacked the jurisdiction to pass it, deserves to be quashed.
::: Downloaded on - 31/01/2022 23:16:28 :::CIS 8Learned counsel for the petitioner also submitted that the observations made in the impugned order with respect .
to the fact that no fruit bearing trees existed on the acquired land of the petitioner and that classification of the acquired land in the revenue record does not suggest existence of fruit bearing trees over the acquired land, are even otherwise contrary to the documents on record. Learned counsel for the petitioner inviting reference to the jamabandi for the year 1997- 98 submitted that one of the Khasra Nos. 433/118 from which the land in question was acquired was classified therein as 'Bagicha Barani Faldar'. He has also placed reliance upon Annexure PR-1(colly) indicating that on the written request of Land Acquisition Officer dated 19.1.2018, the Horticulture department on 22.1.2018 had sent an evaluation report of uprooted fruit bearing trees to the Land Acquisition Officer.
Learned counsel submtted that at serial No. 1 of this report is the acquired land in question wherein details of uprooted fruit bearing trees alongwith their value has been mentioned.
Learned counsel for the petitioner submitted that the factual observations made in the impugned order are contrary to the record.
::: Downloaded on - 31/01/2022 23:16:28 :::CIS 9Controverting the above submissions, learned Deputy Advocate General submitted that the impugned order .
dated 25.3.2019 was passed strictly in compliance to the direction issued in the judgment dated 13.6.2018 rendered in CWP No. 1270 of 2018 and therefore, no interference is called for.
4. Observations I have heard learned counsel for the parties and gone through the record.
4(i) The picture that emerges is that an award under Section 11 of the Land Acquisition Act (in short 'the Act') was passed by learned Land Acquisition Collector on 18.9.1998.
This award was regarding acquisition of land only. The petitioner was compensated in terms of the award in lieu of his land acquired for the construction of the Panarsa-Prashar road.
The award clearly stated that some fruit bearing/non-fruit bearing trees were standing on the acquired land and the assessment in that regard was still awaited. Further, it was observed in the award that "as such supplementary award will be announced after the assessment."
4(ii) In the award dated 31.8.2011 passed by learned District Judge deciding the petition preferred by the petitioner ::: Downloaded on - 31/01/2022 23:16:28 :::CIS 10 under Section 18 of the Act, it was noticed that the petitioner had demanded compensation for fruit bearing trees standing on .
his acquired land and that "the respondent, in the present case, has not disputed that the fruit bearing trees were not standing on the acquired land but according to him, the assessment of those trees was not received from the Horticulture and Forest deptt. The respondent also took the plea that supplementary award would be passed after the receipt of the r the report from the concerned departments. The award has also been placed on the file. Perusal of the same shows that in page No. 3, it has been mentioned that the supplementary award will be announced after receipt of the report from the concerned departments. Since the award has not yet been passed by the respondent regarding the fruit bearing trees, as such, this court has no jurisdiction to assess the value of the trees."
4(iii) In the impugned order, respondent No. 1 has held that there was no document to substantiate the observations made by Land Acquisition Collector. That petitioner could not establish his plea before the reference Court. And that neither the revenue entries nor the classification of acquired land suggest existence of fruit bearing trees on it. Respondent No. 1 ::: Downloaded on - 31/01/2022 23:16:28 :::CIS 11 finally holding that observations of Land Acquisition Officer are not supported by evidence, rejected petitioner's representation.
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4(iv) The judgment dated 13.6.2018 rendered in CWP No. 1270 of 2018 directed the respondent authority to consider and decide petitioner's representation in accordance with law after affording him an opportunity of hearing. The petitioner represented to the competent authority i.e. Collector, Land Acquisition HPPWD on 19.6.2018 The competent authority in the instant case had to be respondent No. 2 i.e. the concerned Land Acquisition Collector. Under the Scheme of the Land Acquisition Act, the award has to be passed by the Land Acquisition Collector, whereafter petition can be preferred under Section 18 of the Act and further appeal lies under Section 54 of the Act. In the instant case, the Land Acquisition Collector had already observed in the award dated 18.09.1998 that some fruit/non-fruit bearing trees existed on the acquired land and the supplementary award shall be passed after the receipt of the evaluation report in respect of fruit bearing/non-fruit bearing trees on the acquired land. In such situation, respondent No. 1 had no authority under the Act to sit in appeal over the award so passed by the Land Acquisition Collector. The impugned order passed by respondent No. 1 virtually amounts to an interference ::: Downloaded on - 31/01/2022 23:16:28 :::CIS 12 in the findings recorded in the award passed by the Land Acquisition Collector on 18.9.1998. Decision upon the .
representation of the petitioner dated 19.6.2018 could be taken only by respondent No. 2 i.e. the Land Acquisition Collector and not by respondent No. 1. Petitioner had represented to respondent No. 2 requesting him to pass supplementary award and not to respondent No. 1.
to Respondent No. 1 had no authority under the Act to decide upon the issue of passing the supplementary award more so when specific observation in that regard had already been made in the award passed by Land Acquisition Collector as well as in the award passed by learned District Judge. In terms of these awards, neither before the Land Acquisition Collector nor before the learned District Judge, the respondent department disputed about the existence of fruit bearing trees on the acquired land. Therefore, it is held that the impugned order has been passed by an authority which was not competent to decide the representation of the petitioner more particularly in the facts of the case. The impugned order has been passed without jurisdiction and hence needs to be quashed and set aside. Accordingly, this petition is allowed.
Order dated 25.3.2019 is quashed and set aside. Respondent No. 2-the Land Acquisition Collector is directed to decide the ::: Downloaded on - 31/01/2022 23:16:28 :::CIS 13 representation preferred by the petitioner in accordance with law within a period of eight weeks from today, after affording .
him an opportunity of being heard. Pending application(s), if any, shall also stand disposed of.
It is clarified that observations made above are confined to the adjudication of instant petition only and shall
2.
r to have no bearing on the decision to be taken by respondent No. Jyotsna Rewal Dua Judge 11th November, 2021 (vs) ::: Downloaded on - 31/01/2022 23:16:28 :::CIS