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ishwar Das Kaushesh Vs. State of Himachal Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Petn. No. 4 of 1955
Judge
Reported inAIR1956HP55
ActsConstitution of India - Article 226; ;Land Acquisition Act, 1894 - Section 17
Appellantishwar Das Kaushesh
RespondentState of Himachal Pradesh and anr.
Appellant Advocate Chandulal, Adv.
Respondent Advocate B. Sita Ram, Govt. Adv.
DispositionPetition dismissed
Cases ReferredK. Sankaran Nair v. Nallacheri Govindan Nambiar
Excerpt:
- .....the revenue department of the himachal pradesh government notified under section 4 of the land acquisition act that the above land was likely to be needed for a public purpose, i.e. for the teachers' training school, nahan. anyone interested in objecting to the acquisition of the above land was required to file his objections in writing to collector of sirmur district within 30 days.on 4-5-1955 another notification, no. r-60-65/ 55, was issued by the revenue department of thehimachal pradesh government, purporting to be under section 6, read with section 17(1) and 17(4), of the land acquisition act, wherein it was stated that the land was required to be taken urgently for a public purpose, namely teachers' training school at nahan, and the collector of sirmur was directed to.....
Judgment:
ORDER

Ramabhadran, J.C.

1. This is a petition under Articles 226 and 227 of the Constitution. It arises under the following circumstances:

2. The petitioner is the owner of land, measuring 5341 square yards situated on the Hospital Round at Nahan and of a building erected thereupon. On 19-4-1955, through notification No. R. 60-65/55, the Revenue Department of the Himachal Pradesh Government notified under Section 4 of the Land Acquisition Act that the above land was likely to be needed for a public purpose, i.e. for the Teachers' Training School, Nahan. Anyone interested in objecting to the acquisition of the above land was required to file his objections in writing to Collector of Sirmur district within 30 days.

On 4-5-1955 another notification, No. R-60-65/ 55, was issued by the Revenue Department of theHimachal Pradesh Government, purporting to be under section 6, read with Section 17(1) and 17(4), of the Land Acquisition Act, wherein it was stated that the land was required to be taken urgently for a public purpose, namely Teachers' Training School at Nahan, and the Collector of Sirmur was directed to take order for the acquisition of the said land.

Notices under Section 9 of the Land Acquisition Act were issued by the Collector Land Acquisition, Sirmur, calling for objections by 23-5-55. No objections were filed. The petitioner wrote a letter, dated 8-5-1955, to the Collector, stating that he had 'no particular point to represent' and adding that he was prepared to hand over possession of the land and the house immediately, without claiming additional compensation for urgent acquisition.

The petitioner claims that on 12-5-55, in obedience to an order issued by the Collector Land Acquisition to the Tehsildar of Nahan, he handed over possession of the land as well as of the building, standing thereupon, to the Headmaster, Government Teachers' Training School, Nahan.

The petitioner's contention is that after the delivery of possession to the respondents all rights of ownership vested in them and they, nevertheless, have not paid him the amount of compensation aggregating to Rs. 67,953/14/6, referred to in letter No. 19-Acq. SRA-DC/55-517 dated 19-5-1955, sent by the Collector Land Acquisition, Sirmur, to the Deputy Director of Education, Himachal Pradesh, Simla 4.

Instead of paying the compensation amount to the petitioner, the Himachal Pradesh Government, on 8-9-1955, issued notification No. R. 60-65/55, purporting to cancel the earlier notifications of 19-4-1955 and 4-5-1955, on the ground that the land in question was no longer required, and accordingly the acquisition proceedings were withdrawn. The petitioner contends that after delivery of possession it was not open to the respondent No. 1 (State of Himachal Pradesh) to withdraw from the acquisition proceedings.

It is urged that the respondents are bound to proceed strictly in accordance with the provisions of the Land Acquisition Act, i.e. to pay the full amount of the compensation to the petitioner, along with interest upto date of payment.

Hence, this petition under Articles 226 and 227 of the Constitution, wherein I am requested to issue an appropriate writ to the respondent No. 1, directing it to discharge its functions strictly in accordance with the provisions of the Land Acquisition Act, to withdraw the notification dated 8-9-1955 and to pay the petitioner the full amount of compensation, awarded along with interest at 6 per cent per annum.

3. The petition is opposed by both the respondents on identical grounds. While admitting that the petitioner is the owner of the property in question, the respondents deny that the building is worth Rs. 50,000/-, as stated in para 1 of the petition.

The issue of the notifications, dated 19-4-1955 and 4-5-1955, is admitted, but the respondents contend that there was, in fact, no urgency. It is stated that the petitioner, by abusing his official position, as Superintendent, Revenue Department, Himachal Pradesh Secretariat, fraudulently and in conspiracy with some officials, hurried the proceedings with aview to thrust his property on the Government for an unconscionable price.

It is further stated that the petitioner himself approached the Deputy Director of Education, Himachal Pradesh, and requested him to acquire the property in question by giving him to understand that the cost would not exceed Rs. 25,000/-.

The respondents contend that the provisions of Section 17(1) of the Land Acquisition Act have no applicability at all and, therefore, the notification of 4-5-1955, was ultra vires and ineffective. It is further pleaded that the alleged delivery of possession to the Education Department on 12-5-1955 would not bind the respondents as it was manoeuvred by the petitioner himself and went against the mandatory provisions of law.

The respondent No. 1 goes on to state that when it realised the fraud perpetrated upon it by the petitioner, in collusion with some officials, they cancelled the acquisition proceedings on the ground that they were ultra vires and illegal. This step they took in order to prevent a fraud on the public revenues.

Thus the respondents deny all liability to pay anything to the petitioner. Further it was stated that the matter cannot be decided in these summary and; extra-ordinary proceedings, but only by way of regular suit. The respondent No. 1 has filed an affidavit of Shri M. C. Saraswati, Deputy Director of Education, Himachal Pradesh. A replication, accompanied by an affidavit, has been filed by the petitioner.

4. Arguments of the learned counsel for the parties were heard on the 16th instant. I now proceed to deliver judgment.

5. Learned counsel few the petitioner (Mr. Chandu Lal) argued that after delivery of possession, to the respondents, it was not open to them to withdraw from the acquisition proceedings. He invited my attention to the provisions of Section 48 of the Land Acquisition Act. Section 48(1) provides that the Government shall be at liberty to withdraw from the acquisition of any land, of which possession has not been taken. The learned counsel has cited,--'Secy. of State v. Chettyar Firm', AIR 1927 Rang 14 (A), where a Division Bench of that High Court held:

'......... there can be no withdrawal after possession is taken under an award.'

The learned Government Advocate for the respondents argued, on the other hand, that the proceeding1 of 12-5-1955, whereby possession purports to Have been handed over to the Headmaster, Teachers Training School, Nahan, was a collusive, illegal and fraudulent proceeding and, therefore, would not bind the Government. He vehemently argued that the provisions of Section 17 of the Act had no applicability to the present case.

He also pointed out that on 10-5-1955, a letter was sent by the Deputy Commissioner, Sirmur, to the Assistant Secretary (Revenue) to Government, Himachal Pradesh, inquiring whether the notification of 4-5-1955 would apply to the building situated on the land in question. That letter reached the Himacal Pradesh Secretariat the following day and a reply to the effect that the word 'land' would include buildings, was despatched on the same day and received in Nahan the next day, i.e. 12-5-1955.

On 12-5-1955, a letter was issued by the Collector, Land Acquisition, to the Tehsildar to arrangeto hand over the possession of the land and house in question to the Education Department. As already shown, action was taken almost immediately in the matter of delivery of possession.

The learned Government Advocate stressed that the hot haste, with which the proceedings had been hurried through on the 10th, 11th and 12th May 1955 showed that the whole tiling was manipulated and manoeuvred by the petitioner with the help of certain other officials, who had colluded with him. I was, therefore, requested to hold that the physical act of delivery of possession was vitiated by fraud and consequently that would not be binding upon the Government.

6. I have referred to these facts and circumstances in some detail to show that there is substantial divergence between the parties as to facts. The learned Government Advocate argued that since in this case the facts are not admitted, this Court should not exercise its discretion in favour of the petitioner by entertaining this petition.

He urged that the proper course would be for the petitioner to seek his remedy, if so advised, by way of regular suit. After giving the matter my careful consideration and in the light of the authorities to be cited presently, I am of the opinion that this application cannot be entertained.

7. Let me refer to the following authorities on the subject:

(1) 'Chandra Chudamani v. Madras State', AIR 1952 Mad 589 (B). There a Division Bench of that High Court held that:

''Where a suit is the proper and adequate remedy under the circumstances, as a rule an order under Article 226 would not be made.' (2) 'Naresh Chandra v. The Union of India', AIR 1952 Cal 757 (C). There a learned Judge of that High Court observed that:

'It was not a case where the facts were admitted and the only question to be decided was a question of law. One of the submissions was that the orders were passed mala fide. This was a question which could be more conveniently disposed of in a suit than in an application under Article 226.'' (3) 'Dineshcharan Mazumdar v. State of Madhya Bharat', AIR 1953 Madh-B 165 (D). There a Division Bench of the Madhya Bharat High Court, following 'State of Orissa v. Madan Copal', AIR 1952 SC 12 (E), pointed out as follows:

'If the High Court finds itself unable to decide on the rights of the parties and thinks they could be investigated more properly in a civil suit, no direction under Article 226 can be issued.'

'The power under Article 226 would not be exercised if the petitioners' right depended on facts which were disputed and on the legal effect of facts to be proved.'

''The remedy under Article 226 is intended to supply defects of justice and to the end that justice may be done and is not intended to supersede the ordinary remedies of Law. Ordinarily, therefore, the power under Article 226 should not be exercised by the High Court if the petitioner has other convenient or adequate remedy.''

'The burden lies on the applicant asking the High Court to exercise the jurisdiction under Article 226 Jo show that he had no other specific and adequatelegal remedy or that the remedy of a suit is not convenient, beneficial or effectual and one by which justice could be satisfactorily obtained by him.'

'The question whether an alternative specific remedy is or is not equally convenient, beneficial and effective, has to be considered on the facts and circumstances of each case.'

(4) 'Ranvijai Singh v. Divisional Forest Officer's, AIR 1953 Him Pra 33 (F), where my learned predecessor indicated that:

'Wherever there is a wrong there is a remedy, but it cannot always be remedy by invocation of the extra-ordinary jurisdiction of the High Court under Article 226 of the Constitution. There must be exceptional reasons for asking for the exercise of that extraordinary jurisdiction, for otherwise the ordinary legal remedy by a suit under the general law would be-rendered wholly nugatory.' (5) 'Ram Dayal Chuni Lal v. Governor Himachal Pradesh', AIR 1954 Him Pra 87 (G), where, after referring to the case law on the subject, I had remarked that:

''High prerogative writs are ordinarily not issued, where an alternative remedy equally efficient and adequate exists, unless there is any exceptional reason for ousting the jurisdiction of the ordinary courts of the land and to deal with the matter under the writ jurisdiction.' (6) 'K. Sankaran Nair v. Nallacheri Govindan Nambiar', (S) AIR 1955 Mad 120 (H), where a learned Judge of that High Court remarked that: 'No doubt the existence of an alternative remedy will very often dissuade the High Court from granting an application for a writ. But this is a matter of discretion and the Court is not bound to refuse at writ merely because an alternative remedy exists.'

8. In the present case, as already shown, the respondents have, in clear and unequivocal terms, pleaded fraud on the part of the petitioner. They have further alleged the existence of conspiracy on the part of the petitioner and some other officials, with the object of defrauding the Government.

If, as has been alleged by the respondents, the petitioner abused his position as Superintendents, Revenue Department, Himachal Pradesh Secretariat, and in that capacity, hurried up the acquisition proceedings and also got possession delivered dishonestly, then the respondents might well contend that they are not bound by the acts of their agents and servants.

This plea cannot be decided on the basis of affidavits and counter-affidavits. A specific issue on this point would have to be framed, evidence recorded and a finding given. Such a finding can be given only in a regular proceeding, i.e. a suit.

9. I may also point out that the petitioner wants, me to direct the respondents to pay him the amount' of compensation referred to in letter No. 19-Acq.-SRA-DC/55-517 dated 19-5-1955, sent by the Collector Land Acquisition Sirmur to the Deputy Director of Education, Himachal Pradesh. This letter cannot be deemed to be an award.

It can amount at most to an 'advance copy'' of an award--a proceeding unknown to law. Therefore, the amount of compensation referred to in para 2 of that letter, cannot be considered to be the amount 'awarded'' by the Collector. Even if we assume for the sake of argument, that possession ofthe property in question has been delivered to the Government, still the amount of compensation, or damages payable on that score, can be calculated only after recording the evidence of the parties. This, again, cannot be decided in these summary proceedings.

10. In view of all that has been said above, I am of the opinion that the present petition is misconceived and cannot be entertained. The petitioner may seek his remedy by way of regular suit, if so advised.


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