Dismissed

Smt.Saraswati Bhandari v. State of Uttarakhand through Collector, Pauri Garhwal.

Uttarakhand HC16 Nov 2021WPMS/1901/2006

Case brief

AI extract

What is this about?

The High Court dismissed two writ petitions regarding enhanced land acquisition compensation. It held that the executing court did not err in calculating interest and that the ultimate beneficiary (Bharat Electronics Ltd.) remains liable to pay the enhanced compensation despite prior deposits.

What did the court decide?

No relief granted; writ petitions dismissed with no order as to costs.

Smt.Saraswati Bhandari Vs State of Uttarakhand through… — Land Acquisition | Uttarakhand HC (2021)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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Writ Petition No. 2123 (MS) of 2007

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Bharat Electronics Ltd. .......….......Petitioner. -Versus- Collector Pauri Garhwal and others. ……...Respondents.

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Present:

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Shri Jitendra Chaudhary, Advocate for the petitioner. Shri R.C. Arya, Standing Counsel for the State of Uttarakhand. Shri B.P. Nautiyal, Sr. Advocate assisted by Mohd. Matloob, Advocate for respondent no. 4. Shri Gopal K. Verma, Addl. CSC for the State of U.P. / respondent no. 5.

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With Writ Petition No. 1901 (MS) of 2006

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Smt. Saraswati Bhandari. .......….......Petitioner. -Versus- State of Uttarakhand and another. ……...Respondents.

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Present:

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Shri B.P. Nautiyal, Sr. Advocate assisted by Mohd. Matloob, Advocate for the petitioner. Shri R.C. Arya, Standing Counsel for the State of Uttarakhand. Shri Jitendra Chaudhary, Advocate for respondent no. 2.

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Sri S.K.Mishra, J.

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Date of Hearing and Judgment: 16.11.2021

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1. Heard Shri Jitendra Chaudhary, Advocate for the Bharat Electronics Ltd., Shri B.P. Nautiyal, Sr. Advocate assisted by Mohd. Matloob, Advocate for Smt. Saraswati Bhandari, Shri Gopal K. Verma, Addl. CSC for the State of U.P and Shri R.C. Arya, Standing Counsel for the State of U.P..

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2. This common judgment disposes of the two connected writ petitions filed under Article 227 of the Constitution of India. Though an application under Article 227 of the Constitution of India is not a writ petition but as per the practice of this Court it is being registered as Writ Petition. Be that as it may, this Court in

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exercise of jurisdiction of superintendence under Article 227 of the Constitution of India is examining the order passed by the original courts under the provisions of the Land Acquisition Act, 1894.

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3. In Writ Petition No. 2123 (MS) of 2007, petitioner - Bharat Electronics Limited a public sector undertaking having its defence industrial establishment at Kotdwar, District Pauri Garhwal, has prayed for issuance of writ of Certiorari quashing the impugned order dated 04.10.2007 and recovery certificate dated 04.10.2007 of the learned District Judge, Pauri Garhwal (Annexure No. 1 to the writ petition) in LAR Execution Case No. 03 of 2000 and order dated 18.10.2007 of the learned District Judge, Pauri Garhwal (Annexure No. 15 of the writ petition). It has also prayed to issue a writ of Mandamus commanding the respondents no. 1 to 3 not to enforce the impugned order dated 04.10.2007 and recovery certificate dated 04.10.2007 of the learned District Judge in the aforesaid execution case and further to issue a writ of Mandamus commanding the respondents no. 1 to 3 not to proceed with the recovery of the amount mentioned in the recovery certificate dated 04.10.2007 of the learned District Judge. Such other relief, as this Court deem fit and proper in the circumstances of the case, has also been prayed for.

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4. In the connected Writ Petition No. 1901 (MS) of 2006, Smt. Saraswati Bhandari - petitioner is a land oustee. She prays to issue a writ of Certiorari quashing the impugned order to the extent of not allowing the payment of Rs. 14,45072.30 upto 03.11.2006 and also not allowing the interest @ Rs. 467.33 per day from 04.11.2006 till the date of actual payment and the same be awarded in favour of the petitioner and the order dated 03.11.2006 be modified accordingly.

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5. Writ Petition No. 1901 (MS) of 2006 is hereinafter referred to as “first writ petition” and Writ Petition No. 2123 (MS) of 2007 is hereinafter referred to as “second writ petition”.

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6. The facts of these cases are not disputed at this stage. Petitioner – Bharat Electronics Ltd. in the second writ petition is a public sector undertaking established by Central Government, which is mainly engaged in the manufacturing of sophisticated electronics equipment for defence, paramilitary forces and department of telecommunication. The Central Government on 11.12.1984 agreed to establish a defence industrial unit at Kotdwar in District Pauri Garhwal and for that purpose, the State Government agreed to provide 70 acres of land free of cost to the petitioner - Bharat Electronics Limited. On 18.12.1984, a meeting of different officers of the State Government and officers of the Central Government was convened and it was decided that the project needed 40 acres of additional land and the costs of that excess land shall be borne by petitioner - Bharat Electronics Ltd.

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7. On 20.04.1985, the Collector, Pauri Garhwal, wrote a letter to the State Government to provide funds to the tune of rupees five lakh for acquisition of 4.1 acres of land, which was to be provided free of cost to the petitioner - Bharat Electronics Ltd. The State Government in exercise of powers under Section 17 (1) of the Land Acquisition Act, 1894, vide notification dated 17.03.1986 initiated the process of acquiring 16 acres of land of Smt. Saraswati Bhandari. The Special Land Acquisition Officer, Pauri Garhwal determined a total compensation of Rs. 15,88,010.95 for the entire 16 acres. Vide letter dated 27.03.1986, a sum of Rs. 14,64,320/- was deposited by the petitioner - Bharat Electronics Ltd. with the Special Land Acquisition Officer, Pauri Garhwal, through demand drafts. After

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acquiring 16 acres of land by the Collector, on 29.05.1986, the possession of the said land was handed over by the Special Land Acquisition Officer to the Bharat Electronic Ltd. On 28.10.1987, the Special Land Acquisition Officer gave his award and Smt. Saraswati Bhandari – respondent no. 4 was granted a compensation of Rs. 12,000/- per Bigha of the acquired land. The petitioner - Bharat Electronics Ltd. was, therefore, required to deposit Rs. 11,81,670/- and the 10% of this amount was also payable to the State Government, as acquisition charges. Thus, the petitioner – Bharat Electronics Ltd. was to deposit Rs. 12,99,837/- only. In the above circumstances, on deposit of Rs. 14,64,320/- with Special Land Acquisition Officer, an amount of Rs. 1,64,483/- of the Bharat Electronics Ltd. remained surplus with the Special Land Acquisition Officer pending decision of the learned District Judge.

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8. Smt. Sarawati Bhandari – respondent no. 4, preferred a reference under Section 18 of the Land Acquisition Act before the District Judge, which was registered as Land Acquisition Reference No. 1 of 1989. The learned District Judge vide award dated 10.08.1990 enhanced the compensation to the tune of Rs. 24,375/- per Bigha instead of Rs. 12,000/- per Bigha; Smt. Saraswati Bhandari – respondent no. 4 is entitled to additional solatium only on the excess amount of compensation granted by the Court @ 30%, as provided in Section 23 (2) of the Land Acquisition Act and further held that Smt. Saraswati Bhandari – respondent no. 4 is entitled to additional amount of compensation on differential amount increased by the court and awarded interest @ 12% per annum from 17.03.1986 under Section 4 of the U.P. Land Acquisition Act till 29.05.1986. In addition Smt. Saraswati Bhandari was held entitled to get additional interest @ 9% per annum from 30.05.1986 to 29.05.1987

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on the total aforesaid three items on the difference calculated from the excess amount so awarded by the Court and interest @ 15 per annum from 30.05.1987 till the date of its deposit by Collector Pauri.

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9. On 16.10.1990, the Special Land Acquisition Officer, Pauri Garhwal, directed the petitioner - Bharat Electronics Ltd. to make payments on the basis of principles laid down in the award of the District Judge. On 30.09.1991, Bharat Electronics Ltd. deposited Rs. 18,00,000/- on the same day. Thus, only Rs. 34,693/- with interest @15% per annum is due of the State Government against the petitioner – Bharat Electronics Ltd., which is disputed in the year 2002. Smt. Saraswati Bhandari – respondent no. 4 filed an execution case before the District Judge and on 03.11.2006, the District Judge, during the course of execution proceedings, an amount of Rs. 22,34,435/- has determined as enhanced compensation and interest upto the period of 03.11.2006.

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10. In the order dated 04.11.2006, there is no finding that petitioner - Bharat Electronics Ltd. is a judgment debtor. It is stated that this amount has been determined against the judgment debtor referred to in the Award dated 10.08.1990 of the learned District Judge passed under Section 28 of the Land Acquisition Act, which specifically provides that Collector as the judgment debtor under the award. Under Section 28 of the Land Acquisition Act, the District Judge is empowered to determine and adjudicate the liability of compensation of the State Government through Collector and no award for compensation can be passed against the person to whom the State Government hands over the possession. It is further stated that the factum of payment of any amount of compensation by the State Government to the land owner, whose land is acquired and the

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date of payment is the relevant factor to determine the liability of the Collector. Learned District Judge on 04.10.2007 passed the impugned order whereby he directed to recover the amount, as determined in the order dated 03.11.2006 from the petitioner - Bharat Electronics Ltd. and therefore, it has been erroneously recorded in the order dated 03.11.2006 that the petitioner - Bharat Electronics Ltd. is the judgment debtor of the award dated 10.08.1990 passed by the District Judge.

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11. The petitioner - Bharat Electronics Ltd. moved an application dated 18.10.2007 before the learned District Judge seeking recall of the order. The learned District Judge on 18.10.2007 rejected the application of the petitioner - Bharat Electronics Ltd. and treated it as a judgment debtor. Hence, the petitioner - Bharat Electronics Ltd. prayed that order passed by the District Judge is illegal, therefore, should be set aside.

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12. This is a very unfortunate case. A piece of land has been acquired and notification has been issued 35 years back and till date, Smt. Saraswati Bhandari, who is an old lady aged about 95 years, at present, is still waiting to receive a major part of compensation for which she is entitled to.

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13. Shri Jitendra Chaudhary, learned counsel for the petitioner – Bharat Electronics Ltd. submits that petitioner was not a party in the original reference, hence, it could not have been made judgment debtor in the execution proceedings or the recovery certificate issued for realisation of the money is illegal. The liability has been fastened illegally.

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14. In such a situation, when the petitioner - Bharat Electronics Ltd. has approached this Court for quashing of recovery certificate, the burden lies on it to establish that it was not party

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before the learned District Judge in the original reference. There is a singular lack of document on this aspect. Even in the order, which was passed by the District Judge, Pauri Garhwal, full cause title is not given and from perusal of the contents of the second writ petition, it does not transpire that the petitioner Bharat Electronics Ltd. was not party.

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15. Secondly, it is also apparent from the record that though the petitioner Bharat Electronics Ltd. termed itself as a judgment debtor “ e/;wu ” filed an objection before the Executing Court stating that it is a dispute between the State of Uttar Pradesh and Uttarkhand. Furthermore, it failed to plead anywhere in the objections that petitioner – Bharat Electronics Ltd. was not a party before the Original Court deciding reference under Section 18 of the Land Acquisition Act, 1894. It is also not disputed that the petitioner – Bharat Electronics Ltd. is the ultimate user and beneficiary of land acquired from the different persons including Smt. Saraswati Bhandari - respondent no. 4 and in the interest of justice, it should also be fixed the responsibility of distribution of the money to the land oustee. It should be fastened on the beneficiary, who is using the land of the purpose for its industrial and commercial activities though it may be in the interest of the nation.

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16. Another aspect also cannot be lost sight of. It is admitted case of the petitioner – Bharat Electronics Ltd. that it has already deposited the money that is required to be deposited before the Collector representing the State of Uttar Pradesh /Uttarakhand, so in all probability, the balance money should be also paid by it.

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17. In all fitness of things, money should be paid by the petitioner – Bharat Electronics Ltd. who is the ultimate user and the beneficiary of the land.

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18. Mr. Jitendra Chaudhary, learned counsel for the petitioner – Bharat Electronics Ltd. submits that since it has already deposited the required amount of compensation, as per the award and the State of Uttar Pradesh / Uttarakhand is liable to pay any further amount. Such an argument is fallacious because the enhancement of the compensation has been made, as per Section 18 of the Land Acquisition Act, 1984 and it is in accordance with the procedure established by law under the aegis of the Constitution of India. It cannot be said that it is de hors the procedure, without due process of law or any illegal order is passed without jurisdiction.

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19. The learned District Judge is the authority to consider whether the compensation paid is correct, fair and appropriate and if it has to be enhanced, now that the order has been passed by learned District Judge on 10.08.1990. In the meantime, more than 20 years have elapsed and the ultimate benefit has not reached to Smt. Saraswati Bhandari - respondent no. 4.

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20. In that view of the matter, this Court in exercise of writ of Certiorari under Article 226 of the Constitution of India or in exercise of general superintendence under Article 227 of the Constitution of India, is not inclined to enter into jugglery and play of words to deny Smt. Saraswati Bhandari - respondent no. 4 of the rightful benefits, she is entitled to. In that view of the matter, the second writ petition is dismissed being devoid of the merit.

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21. As far as the first writ petition is concerned, petitioner Smt. Saraswati Bhandari (respondent no. 4 in the second writ petition) prayed that additional amount of interest be paid. She calls in question, the calculations made by the Executing Court. We have carefully examined the order passed by the learned District Judge in the original reference under Section 18 of the Land Acquisition

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Act, 1894 and the order passed by the learned District Judge as an Executing Court. An Executing Court cannot go beyond the decree originally passed and he cannot recalculate as per the submissions made by the learned counsel for the petitioner in this case.

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22. This Court is of the opinion that the Executing Court has correctly calculated the interest, as per the direction given in the award, made in reference under Section 18 of the aforesaid Act. Moreover, in proceedings of Certiorari or general superintendence a detailed mathematical calculation is to be avoided and broad issues like exercise of jurisdiction, matter of impropriety or illegality in the order has to be looked into. Mathematical calculations are not to be examined under Article 227 of the Constitution of India. Hence, this Court is not inclined to interfere with matter, therefore, the first writ petition is also dismissed.

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23. There shall be no order as to costs. Urgent certified copy of this order be supplied to the learned counsel for the parties, as per Rules.

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(S.K.Mishra) Judge

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SKS

Smt.Saraswati Bhandari v. State of Uttarakhand through Collector, Pauri Garhwal.

Case brief

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Smt.Saraswati Bhandari v. State of Uttarakhand through Collector, Pauri Garhwal.

Case brief

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