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2003 (10) TMI 648

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....7 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 Rs. 1.34 per square yard. Allegedly, in his award it was held that the acquired land was surrounded by various colonies and localities and was of full building potentiality. Within the determined, a....

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.... 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 maintainable. It was held: "The appeal already filed by the Parishad is not maintainable and so the Parishad cannot be debarred from filing writ petition. The alternative remedy of Appeal under the Nagar Mahapalika Adhiniyam is onerous....

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....een 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 that having regard to the provisions contained, in Section 18 of the Land Acquisition Act, the appellants cannot be said to have derived locus standi to take part in the proceedings before the Land Acquisition Tribunal or for that matter filing the Appeal before this Cou....

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....n 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 force of law: (c) a substantial error or defect which may have produced an error or defect in the decision of the case upon merits either on a point of fact or of law." 21. A bare perusal of the aforementioned provision would clearly go to show that the appeal can be preferred if a certificate is granted ....

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.... 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 maintainable the petition, which was entertained and was heard on the merits." 30. In an ordinary situation this Court could have agreed with the contention of Mr. Gupta to the effect that two parallel remedies could not have been allowed to continue simultaneously as has been held in Bombay Metropolitan Region Development Authori....

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....n 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 in Section 50(2) of the L. A. Act, the local authority would be a person aggrieved who can invoke the jurisdiction of the High Court under Article 226 of the Constitution to assail the award in spite of the proviso precluding the local authority from seeking a reference. Such a challenge will, however, be limited to the grounds on which judicial r....