- (1.) R. A. Sharma, J. Petitioners are the owners of certain plots of land in village Rasiya, Pargana Kera Magror, Tahsil Chakia, district Varanasi. Their land as well as the land of various other persons were acquired under the Land Acquisition Act (hereinafter referred to as the Act) by the Government. Award under Section 11, determining the compensation to be paid for the acquired land was also made. Some of the landholders being dissatisfied with the award got a reference made under Sec tion 18 of the Act to the Court. The Court enhanced the compensation. The petitioners thereafter moved applications under Section 28- A of the Act before the Collector (Land Acquisition Officer) for enhancement of compensation of their land in accordance with the award/decree given by the District Judge on a reference under Section 18. Their applications were rejected on the ground of delay. That order was challenged by them by means of a writ petition before this Court, which was al lowed vide judgment dated 18-9-1989, whereby directions were issued for deciding the petitioners' applications under Section 28-A of the Act on merit. Thereafter the Special Land Acquisition Officer vide his award dated 19-1-1993 enhanced the com pensation of the petitioners' land in terms of the judgment given earlier by the learned District Judge on a reference under Section 18. By the said award after adjusting the amount already paid to them, a sum of Rs. 1. 83, 554. 29 have been awarded in favour of the petitioners. As the aforesaid amount pursuant to the award dated 19-1-1993 was not paid to the petitioners, they made a representation dated 28-4-1993 to the Dis trict Magistrate/special Land Acquisition Officer, Varanasi for payment. But even then the awarded amount was not paid. They thereafter continued to make repre sentations and reminders in connection therewith. They also met the Collector/spe cial Land Acquisition Officer personally; but without any result. Ultimately they have filed this writ petition, praying for writ of mandamus, directing the respondents to pay them the amount awarded to them by order dated 19-1-1993 along with interest at the rate of Rs. 18% per annum.
(2.) THIS Court while entertaining this writ petition on 28-10-1993 passed an inter im order, which is reproduced below, per mitting the petitioners to approach the respondents with a copy of that order for payment of compensation: "learned Standing Counsel seeks time for obtaining instructions and filing counter-affidavit. List this petition for admission on 29-11-93 by which date the learned Standing counsel may file counter- affidavit. The petitioners may approach with the copy of this order to respondent No. 2 for payment of compensation and in case the pay ment as aforesaid has yet not been made, he shall make arrangement for the same and the learned counsel for the petitioners shall intimate to this Court by the next date whether the said payment has been made or not. " In spite of the above order the payment was not made to the petitioners. Respondents have filed counter-af fidavit and the petitioners have filed rejoinder affidavit in reply thereto. We have heard the learned counsel for the parties. In the counter-affidavit making of an award dated 19-1-1993 by the Special Land Acquisition Officer under Section 28-A of the Act and non-payment of the amount awarded to the petitioners are admitted. But in paragraphs 10 to 15 of the counter-af fidavit it has been stated that the compensa tion could not be paid to the petitioners for want of money. Paragraphs 10 to 12 of the said counter-affidavit are reproduced below: "10. That in reply to the contents of para graph No. 12 of the writ petition it is stated that when the amount will be made available for pay ment to the petitioners, the question of payment of interest will be considered in accordance with law. 11. That in reply to the contents of para graph No. 13 of the writ petition it is submitted that no money is available in any plan of the concerned Chandra Prabha Division. Varanasi. 12. That in reply to the of para graph No. 14 of the writ petition it is stated that as soon as the necessary money is made available by the acquiring body, the same will be paid to the petitioners. " In the rejoinder affidavit the petitioners have disputed the claim of the respondents regarding want of money and they have further stated that they are not being paid compensation on account of ex traneous consideration.
(3.) THE Act has provided for acquisition of the land by the State on payment of com pensation. After the award under Section 11 has been made, determining the compen sation to be paid for the acquired land, Sec tion 31 of the Act cast obligatory duty on the Collector to tender the payment of compen sation awarded to the persons inter ested/entitled thereto unless prevented by one or more contingencies mentioned in sub-sections (2) and (3) of the said Section. Sub-section (2) covers a case when there is a dispute as to the title to receive the compen sation or as to apportionment of it or when either the land-holder does not consent to receive the compensation or there is no per sons competent to alienate the land. But in such cases also the amount awarded has to be deposited in the Court. Under sub-sec tion (3) the Collector with the sanction of the appropriate Government has been given the discretion to make arrangement of the kind specified therein with a person having limited interest in the land instead of awarding money compensation. THErefore, unless the case is covered by sub-sections (2) and (3) the Collector is bound to make pay ment of the compensation awarded to the land- holder. THE instant case is not covered by sub-sections (2) & (3) of Section 31. Award made under Section 28-A replaces the award made under Section 11 of the Act. It is the duty of the Government to pay the compensation of the acquired land to the land-holders not only in accord ance with an award under Section 11; but also in accordance with an award made under Section 28-A The Act does not con template acquisition of the land without payment of compensation. It is not open to the Government to first acquire the land and then decline to pay compensation for it. Such an attitude of the Government is not only contrary to the provisions of the Act but is also contrary to Article 300-A of the Constitution of India. If it does not have money to pay compensation it has no busi ness to acquire somebody's property. In the instant case possession of the land has al ready been taken by the State long ago; but compensation for the acquired land has not been paid so far. It is most unfortunate that peoples' land have been acquired but com pensation has not been paid to them on the pretext of want of funds. The Government's failure to pay the compensation to the petitioners deserves condemnation and cannot be sustained.;