N. N. Mithal, J. - (1.) THE petitioners herein are admittedly owners of plot No. 83 area 4-9-0 bighas in Mahewa Purab Patti, Uparhar in the district of Allahabad. A notification under Sec. 4 (1) of the Land Acquisition Act was issued on 8-12-1986 indicating the Govt, intention to acquire the said land for the purposes of dumping garbages and rubbish for the , purposes of respondent no. 4, the Nagar Mahapalika. Allahabad. This notification was followed by declaration under section 6 of the Act on 13th February, 1987 read with section 17 (4) and possession from the petitioner was taken in December, 1987. Its possession was handed over to respondent no. 4 by the Collector on 4th January, 1988.
(2.) THE estimated market value of the property was initially assessed at Rs. 2,49,4000 which was later on re-determined as Rs. 623,000/-. THE petitioner claimed that they were entitled to receive 80% of the estimated value of the compensation before delivery of possession over the land. Since no such payment had been made, the petitioner came up before this court in Civil Misc. Writ Petition No. 896 of 1959 seeking direction against the respondent. State of U. P., Collector, Allahabad and the Nagar Mahapalika, Allahabad to pay the aforesaid amount. Despite respondent no. 4 having put in appearance in that petition no counter affidavit was filed by the Nagar Mahapalika. THE petition was ultimately allowed on 25th April, 1989 after hearing the counsel for State of U. P. directing the respondents to make payment of 80% of the estimated value of the land within two months and in case the estimated market value had not already been determined, also to do so within the aforesaid period. Subsequent to the decision of the said writ petition the estimated market value of the land was finally determined as Rs. 6,23,000/- and the Collector Allahabad asked the respondent no. 4 to make payment of 80 percent of that amount i.e. Rs. 4,98,400/- to the petitioner after adjusting the amount of Rs. 1,00,000/- already deposited by, him. This was done but in the mean time the award was given by the Special Land Acquisition Officer on 19th August, 1989 awarding a total sum of Rs. 14,73,32023 including the cost of land and constructions, solatium at the rate of 30 percent and interest at the rate of 12 percent. Since the respondents failed to pay the amount on the publication of the award despite repeated requests made by the petitioner, they have approached this court for a writ of mandamus to command the respondents to pay the awarded amount of compensation after adjusting any amount already paid. The petition is resisted by the Nagar Mahapalika inter alia on the ground that the estimated value of the acquired land was arbitrarily raised from Rs. 2,49,400/- and even the Special Land Acquisition Officer has arbitrary determined the market value of the land and construction as on the date of notification under section 4 of the Land Acquisition Act at nearly Rs. 15 lacs which is highly excessive; that the land was acquired for the scheme for dumping garbage and rubbish under a World Bank Loan but the World Bank having withdrawn the same the respondents are left with no funds and have decided not to pursue this scheme; that the land was low lying and in nature of big depression and, therefore, unsuitable for use as dump for garbage and rubbish; that the respondent has already approached the State Government for with drawl of the scheme and to de notify the same and lastly that the writ petition was not maintainable as the remedy of the petitioner lay in realising the amount by executing the award as a decree.
(3.) IN the rejoinder affidavit the petitioners have controverted the allegations made by the respondents and it is urged that the scheme cannot be withdrawn in view of section 48 (1) of the Land Acquisition Act since possession has already been delivered and that the award made by the Collector is not executable as a decree. Sri Ashob Mohiley, Standing Counsel for the Nagar Mahapalika, has mainly stressed that the respondent has already approached the State Government for withdrawing the scheme as "it was no longer feasible to go ahead with the scheme in view of the nature of the land as also due to with drawl of the promised loan by the World Bank. It is also urged that the amount can be recovered by executing the same as a decree as provided in section 26 read with section 53 of the Land Acquisition Act according to which the award is deemed to be a decree and CPC has been made applicable to the proceedings.;