TMI Blog2003 (10) TMI 648X X X X Extracts X X X X X X X X Extracts X X X X ..... tituted under Uttar Pradesh Municipal Corporations Adhiniyam, 1959 framed a housing scheme entitled Ghatwasan Grah Isthan Evam Sarak Yojna . It Issued a notification on 23.4.1960 under Section 357 of U.P. Nagar Mahapalika Adhiniyam 1959 (hereinafter referred to as 'Mahapalika Adhiniyam') which is equivalent to Section 4(1) of the Land Acquisition Act. 4. A declaration purported to be in terms of Section 363 of the Mahapalika Adhiniyam which is in pari materia with Section 6 of the Land Acquisition Act was issued on 26.9.1964. The respondent - Parishad was constituted in terms of the 1965 Adhiniyam. After the respondent-Parishad came into being, an agreement was executed between the Mahapalika and the Parishad to transfer the execution of the said scheme in terms of Section 47 of the 1965 Adhiniyam. In furtherance of the aforementioned notification under Section 357 and a declaration under Section 363 of the Mahapalika Adhiniyam, the Special Land Acquisition Officer (SLAO) took possession of the land sought to be acquired on or about 18.6.1971. An award in relation thereto upon assessing the market value thereof was made by the SLAO on or about 24.11.1972 at the rate of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claimants entered appearance. He may file counter affidavit to the application under Section 5 of Limitation Act. Learned Counsel for the appellant has served the memo of appeal and the copy of award on learned standing counsel for respondent Nos. 3 and 4. The notice is treated sufficient. 7. During pendency of the said appeal, the Parishad also filed a writ petition against the award dated 24.5.1993 inter alia alleging therein that the condition of pre-deposit was onerous. 8. The Appellants herein, however, moved an application for dismissal of the appeal for alleged non-compliance of the mandatory provisions of Section 381 of the Mahapalika Adhiniyam. In the Counter-Affidavit to the Writ Petition filed by them also, the maintainability of the said appeal was came to be questioned. 9. The First Appeal as also the writ petition were heard analogously and by reason of a composite judgment dated 20.5.1998 the High Court, while dismissing the First Appeal holding that the appeal under Section 54 of the Land Acquisition Act was not maintainable as the respondent did not comply with the conditions under Section 381 of the Mahapalika Adhiniyam; held that, the writ petition was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15. The learned counsel would argue that as the Parishad's appeal was dismissed, the award and decree of the Tribunal has attained finality and, thus, the same could not have been interfered with by allowing the writ petition. Reliance in this connection has been placed on Sheodan Singh v. Daryao , Seth Chand Ratan (supra), Shanker Ram Chandra v. Krishnaji and Kanai Lal Sethi v. Collector of Land Customs Calcutta [(1956) 60 Calcutta Weekly Notes 1042]. 16. In the event, it be held that the writ petition was not maintainable, it was argued, the Parishad having not preferred any appeal against the writ judgment, the decision of the Tribunal shall operate as res judicata. Reliance in this connection has been placed on Badri Narian Singh v. Kamdeo Prasad Singh [(1962) 3 SCR 759] and Premier Tyres v. KSRTC [(1993) Supp. 2 SCC 146]. 17. Mr. M.N. Rao, the learned senior counsel appearing on behalf of the respondent-Parishad, on the other hand, would submit that the law was not settled at the time as regard locus of Parishad to file appeal against the judgment of Reference Court and in that view of the matter the writ petition was also filed. The learned counsel would contend t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding in relation to that scheme by or against the Nagar Mahapalika may be continued, prosecuted or enforced by or against the Board. 20. It is not in dispute that on or about 31.5.1968 merely the execution of the Scheme alone was transferred. Thus, the entire scheme was not transferred in favour of the Parishad by the Nagar Mahapalika. In that view of the matter the procedures contained in the Mahapalika Adhiniyam for the purpose of acquisition of land indisputably were to be followed. Section 381 of the Mahapalika Adhiniyam reads thus: Appeals -1) An appeal to the High Court shall lie from a decision of the Tribunal, if - (a) the Tribunal grants a certificate that the case is a fit one for appeal, or (b) the High Court grants special leave to appeal, provided that the High. Court shall not grant such special leave unless the Tribunal has refused to grant a certificate under Clause (a). (2) An appeal under Sub-section (1) shall lie only on one or more of the following grounds, namely - (a) the decision being contrary to law or to some usage having the force of law; (b) the decision having failed to determine some material issue of law or usage having the forc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal, as stated hereinbefore, had made this award as far back on 24.5.1993 and the respondent was advised to file appeal on 7.2.1994. Presumably having regard to the objections as regard maintainability of the appeal taken by the Registry of the High Court as also the objection raised by the appellants herein the respondent was advised to file a writ petition. 27. Under the law based on judicial decisions as then existed Parishad had no locus standi to file appeal before the High Court and therefore writ petition at the instance of Parishad was only remedy available. 28. Furthermore, this writ petition was entertained. The appellants herein filed a counter affidavit. The matter was argued on merit and in that view of the matter it is too late in the day to contend that the respondent herein should have availed alternative remedy. 29. In L. Hirday Narain v. Income-Tax Officer, Bareilly the law was laid down in the following terms: We are unable to hold that because a revision application could have been moved for an order correcting the order of the Income-tax Officer under Section 35, but was not moved, the High Court would be justified in dismissing as not maint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly confined to its knowledge about the pendency of the acquisition proceedings before the Collector or the reference court but also any prejudice on account thereof. The said two conditions are to be read conjunctively and not disjunctively. 33. The respondent filed a writ petition because it was seriously prejudiced. This Court in Gyan Devi (supra) envisaged the following legal situations: (1) No notice was given to the local authority under Sub-section (2) of Section 50 of the L.A. Act and as a result the local authority could not appear before the Col lector to adduce evidence. (ii) Notice was served on the local authority and in response to said notice the local authority appeared before the Collector : and (iii) Notice was served on the local authority but in spite of service of such notice the local authority failed to appear and adduce evidence before the Collector. 34. The court laid down the criteria where the local authority would be necessary party or proper party. It was observed: Since the amount of the compensation is to be paid by the local authority and it has an interest in the determination of the said amount, which has been given recognition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Land Acquisition Act vis-a-vis the relevant provisions of the Mahapalika Adhiniyam. We, in the facts and circumstances of this case, feel that as the respondent is being given an opportunity to raise all contentions, it should also be given an opportunity to raise the aforementioned contention also before the reference court. For the views we have taken, it is not necessary for us to refer to the other decisions relied upon by Mr. Gupta. 39. We, however, in view of above, are not disposed to go into merit of civil Appeal No. 4171 of 1999 filed by the Parishad. 40. We, therefore, allow the Civil Appeal No. 4170 of 1999 to the extent mentioned hereinbefore. We, therefore, set aside the impugned judgment of the High Court and remit the matter to the reference tribunal with a direction to implead the respondent-Parishad as party therein and allow the parties to adduce their respective evidence and raise all contentions therein. 41. Keeping in view the fact that the acquisition was made as far back in the year 1960, we would request the Tribunal to dispose of the matter, as early as possible and preferably within the period of three months from the date of receipt of the re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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