ASHOK BHUSHAN,J - (1.) These two writ petitions have been heard together and are being decided by this common judgment. In writ petition No. 70312 of 2011 pleadings have been completed between the parties which writ petition is being treated as leading writ petition. It shall be sufficient to refer the pleadings in writ petition No. 70312 of 2011 for deciding both the writ petitions.
(2.) BRIEF facts giving rise to the writ petition are; a notification under section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as 'Act') dated 21.1.1990 was issued for acquisition of 523 Bighas, 9 Biswas and 4 biswansis land of village Saha alias Pipal Gaon, Jhalva, Harwara and Devghat of Pargana Chail, District Allahabad for the establishment of residential colony by Allahabad Development Authority. A writ petition No. 17406 of 1994 Rehman Siddiqui Vs. State of U.P. and others was filed by the respondent no. 3 praying for direction to the respondents to make an award and pay 20% compensation. Writ petition was disposed of by order dated 1.5.2000, directing the respondents to prepare the award. In pursuance of the order of this Court award was declared on 5.2.2001 with regard to land of village Saha alias Pipal Gaon and Devghat. One tenure holder namely; Jagpat, whose land was acquired by the same notification made an application for reference under section 18 of the Act on the basis of which reference No. 10 of 2001 was registered in the court of District Judge, Allahabad. The reference was decided by the Additional District Judge vide judgment and order dated 31.5.2002, enhancing the rate of compensation from Rs. 80,000 per Bigha to Rs.3,25,000/ - per Bigha. The respondent no. 3 submitted an application under section 28 -A of the Act on 29.8.2002 before the Special Land Acquisition Officer for re -determining the compensation under section 28 -A on the basis of order of the Court dated 31.5.2002, passed in reference No. 10 of 2001 with regard to plots as mentioned in the application. The respondent no. 3 appeared before the Special Land Acquisition Officer, who had issued notice to tenure holders whose names were recorded in the revenue record for receiving the compensation. The respondent no. 3 claimed before the Special Land Acquisition Officer that tenure holders whose names were recorded in the revenue record had executed agreement of sale in his favour and had given possession to the respondent no. 3. The respondent no. 3 also claimed that tenure holders have executed registered power of attorney in favour of respondent no. 3 hence, he be paid the compensation with regard to the aforesaid plots as claimed by him. Special Land Acquisition Officer did not make the payment of compensation to respondent no. 3 and insisted that compensation be received by those persons whose names were recorded in the revenue record. The respondent no. 3 on the allegation that Special Land Acquisition Officer on 20.7.2002 refused to make payment of compensation amount, filed an original suit in the Court of Civil Judge (Senior Division), Allahabad being original suit No. 375 of 2002 arraying the Special Land Acquisition Officer as defendant no. 1, State of U.P. through Collector as defendant No. 2 and original tenure holders as defendants no. 3 to 57 praying for mandatory injunction to the effect that he be declared as interested person in the land acquired and be directed to be paid the compensation. The suit was decreed by the Additional Civil Judge (Senior Division) vide judgment and order dated 3.1.2005. The respondent no. 3 filed writ petition No. 52921 of 2004 praying for payment of compensation which was disposed of on 28.4.2005 directing for deciding the representation of respondent no. 3. Another writ petition No. 65880 of 2005 was filed by the respondent no. 3 which was disposed of by this Court on 19.2.2005, directing the Vice Chairman of Allahabad Development Authority to decide his claim. The claim of respondent no. 3 with regard to certain plots was rejected on 28.7.2009 by the Special land Acquisition Officer on the ground that certain plots were already declared surplus. The order dated 28.7.2009 was set aside in a writ petition filed by respondent no. 3 being writ petition No. 61544 of 2009 vide judgment and order dated 11.02.2010. The case of the respondent no. 3 is that he was paid compensation of the land which was acquired. The respondent no. 3 filed a writ petition in this Court being writ petition No. 11655 of 2010 praying a direction to the respondents to decide the application filed by the respondent no. 3 under section 28A and to re -determine the compensation equal to the amount which was enhanced and paid to Jagpat by order dated 31.5.2002 passed in reference No. 10 of 2001. Against the order of Additional District and Sessions Judge dated 31.5.2002, deciding the reference No. 10 of 2001 filed by Jagpat , Allahabad Development Authority had filed an appeal being First Appeal (Defective) No. 207 of 2002. The appeal was filed without copy of the decree hence, it was reported to be defective. There was delay of one day in filing the appeal. In the appeal, copy of the decree is claimed to have been submitted by the Allahabad Development Authority after 9.9.2011. This Court disposed of writ petition No. 11655 of 2010, Rehman Siddiqui Vs. State of U.P. and others vide its judgment and order dated 6.4.2011. The writ petition was disposed of with the direction that application filed by the respondent no. 3 under section 28A be decided expeditiously, if possible within three months. After order of this Court dated 6.4.2011, District Magistrate wrote a letter on 5.9.2011 to the Allahabad Development Authority to submit its report by the next day i.e. 6.9.2011. Allahabad Development Authority vide letter dated 6.9.2011 informed the District Magistrate that since this Court had directed on 6.4.2011 to decide the application under section 28A, the said application be disposed of accordingly. The Special Land Acquisition Officer vide order dated 9.9.2011 allowed the application filed by the respondent no. 3 under section 28A redetermining the compensation at the rate of 3,25,000/ - per Bigha as per judgment and order dated 31.5.2002 in reference No. 10 of 2001. The District Magistrate on 18.10.2011 wrote to the Allahabad Development Authority to make the payment, in reply to which a letter dated 22.10.2011 was written by the Vice Chairman, Allahabad Development Authority informing that since Allahabad Development Authority was not a party in writ petition No. 11655 of 2010, the Counsel had advised it to file a review application. The District Magistrate on 28.11.2011 wrote to the Allahabad Development Authority to produce the order of the High Court staying the payment till 5.1.2011, otherwise in compliance of the order of the High Court dated 6.4.2011, the payment would be made to the respondent no. 3 from the amount deposited by the Allahabad Development Authority in other schemes. Writ petition No. 70312 of 2011 has been filed by the Allahabad Development Authority in this Court on 2.12.2011 praying for following reliefs: i)to issue a writ, order or direction in the nature of certiorari quashing the order of the District Collector dated 28.11.2011 and order of the Special Land Acquisition Officer dated 8/9.9.2011 (Annexure -9 and 10 to the writ petition). ii)To issue any other writ, order or direction which this Hon'ble Court may deem fit and proper, under the circumstances of the instant case so that justice be done." This Court while entertaining the writ petition on 7.12.2011 directed that till the next date no amount shall be disbursed by the Collector in pursuance of the letter dated 28.11.2011.
(3.) WRIT petition No. 72468 of 2011 was filed by the respondent no. 3 Rehman Siddiqui Vs. State of U.P. and others, seeking mandamus commanding the State of U.P. and Special Land Acquisition Officer to pay the entire amount of compensation in pursuance of the decision dated 9.9.2011 of the Special Land Acquisition Officer along with interest. We have heard Sri Ashwani Kumar Misra, learned counsel appearing for the Allahabad Development Authority in the leading writ petition and Sri B.D. Mandhyan, learned Senior Advocate and Sri S.M. Iqbal Hasan for the respondent no. 3. Sri Ashwani Kumar Misra, learned Counsel for the petitioner submitted that the respondent no. 3 having not been conveyed any right or interest in the agricultural land, is not 'person interested' and was not entitled to file application under section 28A for redetermination of compensation. It is contended that the claim of the respondent no. 3 which is based on agreement to sale/power of attorney could not have been entertained in proceedings under section 28A of the Act and the application under section 28A being not maintainable was liable to be rejected. It is further contented that the basis of the application under section 28A filed by the respondent no. 3 was order dated 31.5.2002 passed in reference No. 10 of 2001 filed by one Jagpat. It is submitted that against the judgment dated 31.5.2002, a First appeal was filed by the Allahabad Development Authority in this Court being First Appeal (Defective) No. 207 of 2002. The application for re -determination under section 28A filed by the respondent no. 3 was required to be kept pending till the first appeal is not finally decided. He submits that during the pendency of the appeal, application under section 28A could not have been decided. He further submits that in earlier writ petition No. 11655 of 2010 filed by respondent no. 3 decided on 6.4.2011, Allahabad Development Authority was not a party hence, the said order has no effect on the rights of the Allahabad Development Authority and the said judgment is not binding on the Allahabad Development Authority. It is further submitted that decree of the civil Court dated 3.1.2005 is a nullity due to the reasons; firstly the Allahabad Development Authority which is acquiring body was not impleaded as one of the defendants and secondly any claim regarding entitlement of compensation was to be raised and decided in proceedings under the Land Acquisition Act and a suit in a civil Court with regard to any claim under the land acquisition proceedings is barred and not maintainable. Lastly, it is contended that the Collector before passing the order dated 9.9.2011 has not given reasonable opportunity to contest the matter since the Collector vide letter dated 5.9.2011 gave only one day's time to submit objection i.e. by 6.9.2011. The time to file objection was so short that the petitioner could not raise any effective objection hence, the opportunity was wholly inadequate and insufficient violating the principles of natural justice. Sri B.D. Mandhyan, learned Senior Advocate and Sri S.M. Iqbal Hasan appearing for the respondent no. 3 refuting the submissions of the learned counsel for the petitioner contended that respondent no. 3 was fully entitled for redetermination of compensation under section 28A and the application under section 28A was filed within the time. It is submitted that the decree of Civil Court dated 3.1.2005 was never challenged by the Allahabad Development Authority on any ground. It is submitted that civil suit was fully maintainable and the Allahabad Development Authority was not a necessary party in the suit since at best the acquiring body is the proper party in the proceedings for determination of compensation and it was not a necessary party in civil suit No. 375 of 2002. It is further submitted that against the order of the reference Court dated 31.5.2002, there was no appeal pending since only a defective appeal was filed in this Court in the year 2002 and filing of defective appeal is not akin to filing of an appeal against the judgment and order dated 31.5.2002. There was no impediment in deciding the application under section 28A. It is further submitted that this Court having already directed for deciding the application under section 28A in writ petition No. 11655 of 2010 vide order dated 6.4.2011, the application under section 28A has rightly been decided by order dated 9.9.2011 and it is not open to the petitioner to contend that application was not maintainable in view of the judgment dated 6.4.2011. It is further submitted that judgment of this Court dated 6.4.2011 in writ petition No. 11655 of 2010 shall operate as res -judicata against the petitioner. It is further submitted that Allahabad Development Authority was well aware of the proceedings before the Collector and in response to the notice dated 5.9.2011 issued by the Collector, a reply was given by the Vice Chairman, Allahabad Development Authority on 6.9.2011 in which no objection was raised with regard to application under section 28A hence, it is not open for the Allahabad Development Authority to raise objection against the application under section 28A of the respondent no. 3. From the submissions of learned counsel for the parties and materials on record following are the issues which arise for adjudication in this writ petition. 1.Whether the respondent no. 3 was "person interested" within the meaning of Section 28A of the Land Acquisition Act, 1894 to file an application for redetermination of the compensation in the facts of the present case? 2.Whether the judgment dated 6.4.2010 of this Court in writ petition No. 11655 of 2010, Rehman Siddiqui Vs. State of U.P. shall operate as res -judicata against the petitioner and the petitioner cannot be allowed to raise any objections against the application dated 29.08.2002 filed by respondent no. 3. 3.Whether in view of filing of First Appeal by the Allahabad Development Authority against the judgment and order dated 31.5.2002 passed under section 18 of the Act being First Appeal (Defective) No. 207 of 2002, the Collector was obliged to await the decision of the appeal and not to proceed to decide the application under section 28A of the Act till the appeal remains pending? 4.Whether decree of civil Court in Civil Suit No. 375 of 2002 dated 3.1.2005 is a nullity on the ground as urged by the petitioner? 5.To what relief, the petitioner i.e. Allahabad Development Authority or the respondent no. 3 is entitled in these two writ petitions ? ;