Dismissed

Akhil Bhartiya Varshiya Sadhu M J Sangh v. Urban Improvement Trust, Udaipur

Rajasthan HC14 Feb 2014WRES/30/2014

Case brief

AI extract

What is this about?

This appeal challenges the restoration of an intra-court appeal and the Learned Single Judge's order directing acceptance of land compensation. The bench dismissed the appeal, holding that a fresh application for deposit is maintainable despite earlier defects in notice production, though they did not interfere with the main order on merits beyond noting potential grievances could be pursued via a

What the court decided

AI extract

Akhil Bhartiya Varshiya Sadhu M J Sangh Vs Urban… — Land Acquisition | Rajasthan HC (2014)

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D.B. Civil Writ Restoration Application No.30/2014 In D.B. Civil Special Appeal (Writ) No.452/2012 Shri Akhil Bhartiya Varshiya Sadhu Margi Jain Sangh Vs Urban Improvement Trust, Udaipur

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D.B. Civil Writ Restoration Application No.30/2014 In D.B. Civil Special Appeal (Writ) No.452/2012

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Shri Akhil Bhartiya Varshiya Sadhu Margi Jain Sangh Vs Urban Improvement Trust, Udaipur

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DATE OF ORDER : 14^th February 2014

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HON’BLE MR. JUSTICE DINESH MAHESHWARI HON’BLE MR. JUSTICE BANWARI LAL SHARMA

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Mr. Rajesh Shah for the applicant-appellant.

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Having regard to the submission made in the application (CMCW No. 54/2014) for condonation of delay supported by the affidavit of counsel, we are satisfied that the delay in filing the restoration application had been for bonafide reasons and it shall be in the interest of justice to consider the restoration application on merits. Hence, the application for condonation of delay (CMCW No. 54/2014) is allowed. The delay in filing the restoration application is condoned.

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Further, having regard to the submissions made in the application for restoration supported by the affidavit of counsel, we are satisfied that the default in appearance on 27.02.2013 had not been intentional; and it appears just, proper and in the interest of justice that the appeal (DB SAW No. 452/2012) alongwith the application filed therein under Section 5 of the Limitation Act be

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D.B. Civil Writ Restoration Application No.30/2014 In D.B. Civil Special Appeal (Writ) No.452/2012 Shri Akhil Bhartiya Varshiya Sadhu Margi Jain Sangh Vs

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Urban Improvement Trust, Udaipur

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restored to the original number. Hence, this restoration application is allowed. SAW No. 452/2012 is ordered to be restored to its number.

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Yet further, having regard to the facts and circumstances, we have also heard the learned counsel for the appellant on the application under Section 5 of the Limitation Act, moved in the appeal; and in the circumstances of the case, while ignoring a short delay of about 20 days, have further heard the counsel on merits of the case and have perused the material placed on record.

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The sum and substance of the matter remains that the land acquisition proceedings for the District Centre (Rana Pratap Nagar), Udaipur were concluded and an award came to be made on 04.02.2006. Later, the Land Acquisition Officer [‘LAO’] moved an application to the Civil Judge (Senior Division), Udaipur under Section 31 of the Land Acquisition Act, 1894 [‘the Act’] with the submission that despite serving of personal notice and publication, the khatedar was not willing to accept the amount of award; and, therefore, an amount of Rs. 8,95,026/- was sought to be deposited by way of cheque No. 040676 dated 20.11.2006 towards the award amount of Rs 10,08,140/-, after deducting income tax of Rs. 1,13,114/-.

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It appears that the said application remained pending for want of curing the defect pointed out by the Office and ultimately, the same was rejected by the Civil Judge on 30.08.2008. However, the concerned LAO, thereafter, moved another application on 01.10.2008 with the submissions that the concerned notices could

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D.B. Civil Writ Restoration Application No.30/2014 In D.B. Civil Special Appeal (Writ) No.452/2012 Shri Akhil Bhartiya Varshiya Sadhu Margi Jain Sangh Vs

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Urban Improvement Trust, Udaipur

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not be filed earlier for the concerning clerk being on leave, which were being filed with the application. It was prayed that the application which was dismissed on 30.08.2008 be taken back to its number. The learned Civil Judge declined this application by the impugned order dated 05.02.2009 while observing, inter alia, that no review of the order was envisaged in the scheme of the Act. The aforesaid orders dated 30.08.2008 and 05.02.2009 were questioned by the Urban Improvement Trust, Udaipur by way of the writ petition leading to this appeal (CWP No. 4672/2010).

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The learned Single Judge of this Court has allowed the writ petition by the impugned order dated 04.01.2012 with the observations that even if the application had been rejected on account of default, a fresh application for depositing the amount was maintainable; and there was no prohibition in law for moving afresh an application for depositing the amount. The learned Single Judge was of the opinion that when the notices served upon the concerned Khatedar were placed on record, the Court should not have rejected the application and the amount sought to be deposited should have been accepted. The learned Single Judge, inter alia, observed as under:

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“As per provisions of Section 31 (2) of the Act if the person interested entitled for the compensation does not consent to receive it or if there be no person competent to alienate the land or if there be any dispute as to the title to receive the compensation or as to apportionment of it, the Collector shall deposit the amount of compensation in the court to which a reference u/s 18 would be submitted. Indisputably, in the

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D.B. Civil Writ Restoration Application No.30/2014 In D.B. Civil Special Appeal (Writ) No.452/2012 Shri Akhil Bhartiya Varshiya Sadhu Margi Jain Sangh Vs

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Urban Improvement Trust, Udaipur

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application preferred before the court, it was specifically mentioned that the khatedar of the land were requested to receive the amount of compensation by service of notice in terms of Section 12 (2) of the Act and the notice was also published in the daily newspaper Danik Bhaskar, however, since the khatedars did not agree to receive the amount of compensation, the amount is being deposited in the court. In considered opinion of this court, in view of the averments of compensation sought to be deposited. It is true that on the directions being issued by the court, the Land Acquisition Officer should have placed on record the notice served upon the khatedar for the satisfaction of the court. But then, it is not the law that once the application was rejected by the court on account of failure on the part of the Land Acquisition Officer to produce the notice served in terms of Section 12 (2) of the Act on the record, the fresh application for depositing the amount was not maintainable. In this view of the matter, in considered opinion of this court, when a review application was preferred by the Land Acquisition Officer and the notice served upon the respondent was also placed on record, the court should not have rejected the application preferred for review of the order and the amount sought to be deposited should have been accepted.”

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In view of the above, the learned Single Judge set aside the orders dated 30.08.2008 and 05.02.2009; and directed the Court concerned to accept the amount of compensation sought to be deposited by the writ petitioner.

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It is contended in challenge to the order so passed by the learned Single Judge that the referred notice was not received by the appellant and in fact, the appellant did not hear anything after receiving notices under Section 9 of the Act and, therefore, all the proceedings sought to be taken up by the Land Acquisition Officer are not countenanced by Law. It is also submitted that the orders

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D.B. Civil Writ Restoration Application No.30/2014 In D.B. Civil Special Appeal (Writ) No.452/2012 Shri Akhil Bhartiya Varshiya Sadhu Margi Jain Sangh Vs

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Urban Improvement Trust, Udaipur

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dated 30.08.2008 and 05.02.009 cannot be said to have been passed in breach of the mandatory provisions of Section 11-A of the Act and hence, the learned Single Judge was not justified in observing that a review petition ought to have been entertained. Some suggestions are also sought to be made that making of the award had not been in conformity with the requirements of Section 6 and 11-A of the Act.

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We are afraid, the submissions of the counsel for the appellants seeking to attack the validity of the land acquisition proceeding cannot be entertained when the proceedings stood concluded long back with passing of the award dated 04.02.2006. So far the application before the Civil Court for depositing the award amount was concerned, of course, the same had earlier been rejected for want of curing of the defect but it appears that the defect had only been of not filing of the notices served on the person concerned.

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It was submitted in the later application dated 01.10.2008 that the notices could not be filed earlier for non-availability of the concerned staff but the same were indeed filed with this application. The learned Civil Court rejected this application only with reference to the fact that defect in the earlier application, of not filing the served notices, was not cured for more than one and a half years; and with the observation that review was not permissible in the matter.

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In our view, the learned Single Judge has rightly observed that though the Land Acquisition Officer should have placed on record the

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D.B. Civil Writ Restoration Application No.30/2014 In D.B. Civil Special Appeal (Writ) No.452/2012 Shri Akhil Bhartiya Varshiya Sadhu Margi Jain Sangh Vs

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Urban Improvement Trust, Udaipur

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notices served on the khatedar for the satisfaction of the Court but then, it is not the law that once the application is rejected by the Court on account of failure on the part of the Land Acquisition Officer to cure the defect, a fresh application for depositing the amount is not maintainable. The order passed by the learned Single Judge appears to be imminently just and proper, which serves the cause of justice.

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In the aforesaid view of the matter and having regard to the circumstances, so far the subject matter of the writ petition is concerned, the impugned order passed by the learned Single Judge does not call for interference in the intra-court appeal. However, it does appear appropriate to observe that in case of any other grievance remaining, the appellant is free to take recourse to the appropriate remedies, but strictly in accordance with law.

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Subject to the observations foregoing, the appeal (SAW No. 452/2012) stands dismissed.

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A copy of this order be placed on the record of SAW No. 452/2012.

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(BANWARI LAL SHARMA),J. (DINESH MAHESHWARI),J.

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sudhir

Akhil Bhartiya Varshiya Sadhu M J Sangh v. Urban Improvement Trust, Udaipur

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Akhil Bhartiya Varshiya Sadhu M J Sangh v. Urban Improvement Trust, Udaipur

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