ORDER
R.S. Jha, J.
1. The petitioner has filed this petition being aggrieved by the award passed by the Land Acquisition Officer, Itarsi, dated 2-7- 2002 awarding compensation to the tune of Rs. 86,89,516/- under the provisions of the Land Acquisition Act, 1984 (hereinafter referred to as 'the Act') to the persons whose lands have been acquired. The petitioner has assailed the legal validity of the award only on the ground that the petitioner was not given a notice or opportunity of hearing as required by the provisions of Section 50 (2) of the Act and has submitted that in the absence thereof the impugned award stands vitiated.
2. The brief facts leading to the filing of the present petition are that the petitioner had proposed to set up a Housing Society in Itarsi and for that purpose requested for acquisition of 9.126 hectares of land situated in Village Itarsi. Notification under Section 4 dated 15-5-94 and declaration under Section 6 dated 4-6-94 of the Act were published in the Official Gazette on 3-6-94 and 17-6-94 respectively and possession of the land was taken over by the petitioner on 24-9-94. The petitioner was directed to deposit Rs. 12 lacs as a tentative amount towards payment of compensation to the persons whose lands were acquired and an award of Rs. 16,99,714/- was passed by the authority on 25-5-96 but the said award was not finalized. The matter was kept pending by the authorities and eventually on account of lapse of the statutory period as prescribed by Section 11-A of the Act a proposal to issue a fresh notification for acquisition of land was made by the authorities on 18-3-97. At this stage some of the persons whose lands were sought to be acquired, filed a petition before this Court which was registered as W.P. No. 541/97 assailing the act of the respondent-authorities to re-initiate the acquisition proceedings and the said petition was disposed of by order dated 9-5-2000 directing the authorities to initiate fresh proceedings and complete the same within the stipulated period of time prescribed. Pursuant to the directions issued by this Court a fresh notification under Section 4 of the Act was issued by the authorities on 9-6-2000 and ultimately an award to the tune of Rs. 86,89,516/- has been passed by the authorities on 2-7-2002 being aggrieved by which the petitioner has filed the present petition.
3. It is submitted by the learned Counsel for the petitioner that the land was sought to be acquired for the Housing Society on the request of the petitioner and proceedings for determining the compensation were not in fact completed by the authorities within the stipulated period of time, as a result of which things got delayed and land, which was at the relevant time, was to be acquired for a sum of Rs. 17 lacs is now being acquired at a cost of Rs. 87 lacs which has greatly prejudiced the petitioner. It is further submitted that the petitioner was in fact required to be given a notice before determining the compensation under the provisions of Sub-section (2) of Section 50 of the Act as has been held by the Constitution Bench of the Supreme Court in the case of U.P. Awas Evam Vikas Parishad v. Gyan Devi and Ors. : (1995) 2 SCC 326. It is further submitted that the opportunity to participate in the proceedings has to be real as mere fact of the knowledge would not exclude the requirement of giving notice to the petitioner or the company for whom the land is being acquired as has been held by the Supreme Court in the cases of Agra Development Authority v. Special Land Acquisition Officer and Ors. : AIR 2001 SC 992 and Kanak (Smt.) and Anr. v. U.P. Awas Evam Vikas Parishad : (2003) 7 SCC 693.
4. Shri Samdarshi Tiwari, learned Government Advocate, appearing for the respondents/State submits that the petitioner had full knowledge about the proceedings undertaken for acquisition as the same was taken up on the request of the petitioner itself. It was submitted that a perusal of the notification under Section 4, dated 9-6-2000 (Annexure P-4) also indicates that the Prescribed Authority notified under the notification was the Executive Engineer of the petitioner-Board. It is also stated that the petitioner participated in the proceedings. It is submitted that in such circumstances, the contention of the petitioner is factually misplaced and misconceived and as such deserves to be rejected. It is further submitted that in view of the judgment of Supreme Court passed in the case of Santosh Kumar and Ors. v. Central Warehousing Corporation and Anr. : AIR 1986 SC 1164, the petitioner is prohibited from challenging the award and, therefore, the petition be dismissed.
5. Shri D.K. Dixit, learned Counsel appearing for the respondent Nos. 5 and 6 and Shri Praveen Chaturvedi, learned Counsel appearing for the respondent Nos. 10 and 11 reiterated the submissions made by the learned Govt. Advocate and further submitted that the judgments relied upon by the petitioner have no applicability in the present case as the petitioner had full knowledge about the proceedings and it had participated in the same.
6. The only issue argued and pressed by the learned Counsel for the petitioner is the non-compliance of the provisions of Section 50 (2) of the Act. To appreciate the submissions it is apposite to appreciate the law relating to the field.
7. In the case of Gyan Devi (supra), the issue as to the scope of participation of a local authority or the company in land acquisition proceedings was considered and the following order was passed by the Supreme Court:
47. Leave granted.
48. Section 50 (2) of the Land Acquisition Act confers on a local authority for whom land is being acquired a right to appear in the acquisition proceedings before the Collector and the Reference Court and adduce evidence for the purpose of determining the amount of compensation.
49. The said right carries with it the right to be given adequate notice by the Collector as well as the Reference Court before whom acquisition proceedings are pending on the date on which the matter of determination of compensation will be taken up.
50. The proviso to Section 50 (2) only precludes a local authority from seeking a reference but it does not deprive the local authority which feels aggrieved by the determination of the amount of compensation by the Collector or by the Reference Court to invoke the remedy under Article 226 of the Constitution as well as the remedies available under the Land Acquisition Act.
51. In the event of denial of the right conferred by Section 50 (2) on account of failure of the Collector to serve notice of the acquisition proceedings the local authority can invoke the jurisdiction of the High Court under Article 226 of the Constitution.
52. Even when notice has been served on the local authority the remedy under Article 226 of the Constitution would be available to the local authority on grounds on which judicial review is permissible under Article 226.
53. The local authority is a proper party in the proceedings before the Reference Court and is entitled to be impleaded as a party in those proceedings wherein it can defend the determination of the amount of compensation by the Collector and oppose enhancement of the said amount and also adduce evidence in that regard.
54. In the event of enhancement of the amount of compensation by the Reference Court if the Government does not file an appeal the local authority can file an appeal against the award in the High Court after obtaining leave of the Court.
55. In the appeal by the person having an interest in land seeking enhancement of the amount of compensation awarded by the Reference Court the local authority should be impleaded as a party and is entitled to be served notice of the said appeal. This would apply to an appeal in the High Court as well as in this Court.
56. Since a company for whom land is being acquired has the same right as a local authority under Section 50 (2), whatever has been said with regard to a local authority would apply to a company too.
57. The matters which stand finally concluded will, however, not be reopened.
58. We, therefore, allow the applications submitted by the Board for being impleaded as a respondent in the appeals filed by the landowners in this Court and direct that the Board be also impleaded as a respondent in the appeals filed by the landowners in the High Court. The judgment of the Allahabad High Court dated 21-12-1990 in First Appeal Nos. 584, 585 and 642 of 1985 and the judgment of the said High Court dated 18-4-1991 in First Appeal Nos. 586, 587 and 641 of 1985 as well as the order dated 18-4-1991 are set aside and the said appeals are disposed of accordingly. There shall be no order as to costs.
8. In the case of Smt. Kanak (supra), the issue as to whether in spite of knowledge, notice was necessary, was discussed by the Supreme Court and it was held as follows:
32. It is not in doubt or dispute that no formal notice was served upon the respondent. A notice to a person, for whom benefit the land is acquired or who is responsible for payment of compensation amount, was mooted before the Courts of law on the construction of Section 50 of the Land Acquisition Act. It was held that Sub-section (2) of Section 50 must be construed as conferring a right of notice on the local authority at the stage of determination of the amount of compensation before the Collector as well as the Reference Court. It is not in dispute that the respondent was not represented even before the Collector. In the aforementioned situation, this Court in Gyan Devi [U.P. Awas Evam Vikas Parishad v. Gyan Devi and Ors. : (1995) 2 SCC 326] held : (SCC p. 337, Para 9)
In other words the right conferred under Section 50 (2) of the Land Acquisition Act carries with it the right to be given adequate notice by the Collector as well as the Reference Court before whom the acquisition proceedings are pending of the date on which the matter of determination of the amount of compensation will be taken up. Service of such a notice, being necessary for effectuating the right conferred on the local authority under Section 50 (2) of the Land Acquisition Act, can, therefore, be regarded as an integral part of the said right and the failure to given such a notice would result in denial of the said right unless it can be shown that the local authority had knowledge about the pendency of the acquisition proceedings before the Collector or the Reference Court and has not suffered any prejudice on account of failure to give such notice.33. It is not correct to contend that by reason of non-service of notice the respondent was not prejudiced. The exception carried out by this Court in the matter of service of notice to the local authority is not only 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 conjointly and not disjunctively.
From a perusal of the cited judgments of the Supreme Court it is clear that the same view was taken up by the Supreme Court in the case of Agra Development Authority (supra), in Paragraphs 5 and 6 in the following terms:
5. It was also urged that the Special Land Acquisition Officer had played a fraud on fixing the rate of compensation. The only basis for this submission was that the agreement, on which reliance was placed to fix the compensation contained two different prices at different places. We find no substance in this submission. The agreement is a registered document. The price relied on is the price shown in the records. There is also, on the agreement, the endorsement of the Sub Registrar showing that the correct price was. All this makes it clear that the price relied upon is the correct price in the agreement.
5-A. It is next urged that the appellants were not given any opportunity to adduce evidence in the proceedings before the Collector for fixation of the cost of acquisition. It was fairly admitted that the appellants were aware of the proceedings. However, no notice had been issued to them and they had not been given any opportunity to adduce evidence for purposes of determining the amount of compensation.
6. To this submission no adequate answer could be given by the respondents. All that was submitted what that the appellants were aware of the proceedings and had held meetings with the Government and the Collector. In our view this is not sufficient. What is required by Section 50 of the Land Acquisition Act is that the body for whom the property is being acquired is given an opportunity to appear and adduce evidence for the purposes of determining the amount of compensation. Nothing could be shown to us that this had been done. On this point the matter requires to be sent back to the Special Land Acquisition Officer for refixing compensation payable.
9. From a perusal of the aforesaid, it is clear that Section 50 (2) has been interpreted by the Supreme Court and it has been held that the local authority or the company on whose behalf land is sought to be required is required to be necessarily heard at the time of determination of compensation and for that purpose notice to the local authority or the company has to be issued. It has also been held that in a case where there is knowledge of pendency of the acquisition proceedings but no notice has been issued, the authority is required to be given a notice and heard while determining compensation.
10. In the instant case, the notification under Section 4 of the Act was issued on 9-6-2000. From a perusal of the original record relating to acquisition proceedings which has been produced before this Court, it is clear that thereafter a draft award was initially prepared on 19-2-2001 and forwarded to the Collector but several objections in respect to the award were raised before the Collector and, therefore, the Collector remitted the matter back to the Land Acquisition Officer on 4-1- 2002 for fresh determination of compensation. It is also clear that on 25-2-2002 the petitioner filed an application requesting the Land Acquisition Officer to implead the petitioner as a party on which the SIX) of the petitioner was permitted to participate in the proceedings who appeared before the Land Acquisition Officer on the next date of hearing, i.e., 21-5-2002 and also participated in the spot inspection proceedings and thereafter final arguments were heard by the Land Acquisition Officer on 1-6-2002 on which date the representative of the petitioner again participated and submitted his arguments.
11. From the documents that form part of the original record, it is also clear that the petitioner-Board subsequent to issuance of the notification under Section 4 had published a letter on 19-11 -2000 informing all the concerned that compensation in respect to the land acquired for the petitioner would be paid on the rates of land as prevalent on the date of notification along with interest and solatium in terms of Section 23 of the Act. Taking into consideration the submissions of the petitioner and the arguments extended before the Land Acquisition Officer a draft award was prepared by the Land Acquisition Officer on 11-6-2002 and sent to the Collector for final publication of award which was ultimately done on 2-7-2002 and compensation to the tune of Rs. 86,89,516/- has been awarded.
12. From the aforesaid facts which have been pointed out from the original record, it is clear that the Officer of the petitioner was notified as a Prescribed Authority for raising objections in the notification published under Section 4 of the Act. The petitioner-Board themselves moved an application on 25-2-2002 for being made a party in the land acquisition proceedings and thereafter participated in the proceedings held on 21-5-2002 and 1-6-2002. The petitioner was permitted to submit and raise all arguments before the authority on the said dates. That the petitioner-Board had itself by the letter dated 19-11-2000 informed all the concerned that the compensation for the land acquired for establishing a housing colony would be paid at the rates prevalent on the date of issuance of notification under Section 4 along with 12% interest and solatium.
13. In view of the aforesaid undisputed facts, it is clear that the present case is not one where the petitioner had either no knowledge or was in any manner prejudiced by the proceedings taken up for determination of compensation. On the contrary, the petitioner-Board itself moved an application for being impleaded as a party and was permitted to participate in the proceedings for determinating compensation and that the award was ultimately passed only after hearing the petitioner. In the circumstances, I do not find any violation of the provision of Section 50 (2) of the Act or the law laid down by the Supreme Court in the case of Gyan Devi (supra).
14. It is pertinent to note that pursuant to the initial acquisition proceedings possession of the land had already been taken over by the petitioner on 20-4-94 and houses have already been constructed thereon and allotted to individuals. From the facts narrated above it is also clear that the petitioner did not, at any point of time, ever challenge the initial notification under Section 4 or notification under Section 6 of the Act issued on 9-5-2000 and in such circumstances any challenge to the same by the petitioner on whose behest proceedings were taken up, at this belated stage, cannot be entertained.
15. In view of the above facts and circumstances of the case the petition filed by the petitioner being meritless is accordingly dismissed. Any interim order granted earlier in the present petition stands vacated. In the peculiar facts and circumstances of the case there shall be no order as to costs.