Dashrath Gupta (HUF) & others Vs State of Chhattisgarh and others

Chhatisgarh High Court (Single Judge)

ACQA->ACQUITTAL APPEAL [ APPEAL U/S 378 ], .1761 of 2013 of 2015, Judgment Date: Jan 30, 2015

HIGH COURT OF CHHATTISGARH : BILASPUR
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Single Bench : Hon’ble Shri Prashant Kumar Mishra, J.
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Writ Petition (C) No.1761 of 2013
Petitioners Dashrath Gupta (HUF) & others
Versus
Respondents State of Chhattisgarh and others
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Present :- Shri N.K. Vyas, Advocate for the petitioners.
Shri Arun Sao, Dy. Govt. Advocate for the State.
Shri Sumesh Bajaj, Advocate for the respondent No.3.
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ORAL ORDER
(Passed on this 30th day of January, 2015)
Heard learned counsel for the parties.
1. Petitioners have challenged the award dated 26-6-2012 in so
far as it relates to inclusion of their land bearing khasra
No.66/20 village Dunda and the order for compensation. The
petitioners have also prayed for exempting the petitioners' land
from acquisition and for a consequential direction to the
respondent No.3-Raipur Development Authority (for short
'RDA') to allot them the reconstituted plots No.A-82 & A-83 in
Sector 6 of Kamal Vihar Scheme-4 for which allotment has
already been made to them by the RDA.
2. In course of hearing, it transpired that in the requisition sent by
the RDA to the Land Acquisition Officer for acquisition of certain
lands, the petitioners' land was wrongly included despite the
fact that the petitioners had consented for the scheme and
agreed to receive the allotment of reconstituted plots. Since
RDA has never intended to acquire such lands and it agreed to
allot reconstituted plots to such holders of land who have
consented for the scheme, the acquisition of subject land
should have been dropped, however, because of lack of
communication amongst different authorities, the award
pertaining to the petitioners' land came to be passed. In the
meanwhile, RDA has issued a letter of allotment of
reconstituted plots in favour of the petitioners.
3. Shri Bajaj, learned counsel for the RDA, would submit that the
RDA is willing to hand over the reconstituted plots to the
petitioners in accordance with the scheme, however, since the
award has already been passed, there is difficulty in
implementing the said allotment in favour of the petitioners
because the RDA has already deposited the amount of
compensation with the Land Acquisition Officer.
4. Shri Sao, learned Dy. Advocate General appearing for the
State, also expresses the difficulty faced by the Land
Acquisition Officer because once the award is passed, the Land
Acquisition Officer becomes functus officio and he cannot
return the amount to the beneficiary of the land acquisition
proceeding. Shri Sao would submit that only option left with the
Land Acquisition Officer is to make payment of compensation to
the petitioners.
5. In the opinion of this Court, the situation emerging in the matter
warrants exercise of extraordinary writ jurisdiction to resolve the
dispute and facilitate the parties who have otherwise agreed to
implement the scheme floated by the RDA.
6. The nature of power and jurisdiction under Article 226 of the
Constitution of India conferred on the High Court has been
explained by the Supreme Court in Dwarka Nath v. Incometax
Officer, Special Circle, D. Ward, Kanpur and another1 as
under :
“4......This article is couched in comprehensive
phraseology and it ex facie confers a wide power
on the High Courts to reach injustice wherever it
is found. The Constitution designedly used a wide
language in describing the nature of the power,
the purpose for which and the person or authority
against whom it can be exercised. It can issue
writs in the nature of prerogative writs as
understood in England; but the scope of those
writs also is widened by the use of the expression
'nature', for the said expression does not equate
the writs that can be issued in India with those in
England, but only draws an analogy from them.
That apart, High Courts can also issue directions,
orders or writs other than the prerogative writs. It
enables the High Courts to mould the reliefs to
meet the peculiar and complicated requirements
of this country. Any attempt to equate the scope
of the power of the High Court under Article 226
of Constitution with that of the English Courts to
issue prerogative writs is to introduce the
unnecessary procedural restrictions grown over
1AIR 1966 SC 81
the years in a comparatively small country like
England with a unitary form of Government to a
vast country like India functioning under a federal
structure. Such a construction defeats the
purpose of the Article itself......”
(Emphasis supplied)
7. Yet again in Gujarat Steel Tubes Ltd. and others v. Gujarat
Steel Tubes Mazdoor Sabha and others2, the Supreme Court
held thus :
“73. While the remedy under Article 226 is
extraordinary and is of Anglo-Saxon vintage, it is
not a carbon copy of English processes. Article
226 is a sparing surgery but the lancet operates
where injustice suppurates. While traditional
restraints like availability of alternative remedy
hold back the court, and judicial power should not
ordinarily rush in where the other two branches
fear to tread, judicial daring is not daunted where
glaring injustice demands even affirmative action.
The wide words of Article 226 are designed for
service of the lowly numbers in their grievances if
the subject belongs to the court’s province and
the remedy is appropriate to the judicial process.
There is a native hue about Article 226, without
being anglophilic or anglophobic in attitude.
Viewed from this jurisprudential perspective, we
have to be cautious both in not overstepping as if
Article 226 were as large as an appeal and not
failing to intervene where a grave error has crept
in. Moreover, we sit here in appeal over the High
Court’s judgment. And an appellate power
interferes not when the order appealed is not
right but only when it is clearly wrong. The
difference is real, though fine.”
(Emphasis supplied)
2(1980) 2 SCC 593
8. In a recent judgment rendered in Eastern Coalfields Limited
and others v. Bajrangi Rabidas3, the Supreme Court held
thus :
“19......It is well settled in law that jurisdiction of
the High Court under Article 226 of the
Constitution is equitable and discretionary. The
power of the High Court is required to be
exercised “to reach injustice wherever it is found”.
In Sangram Singh v. Election Tribunal, it has
been observed that jurisdiction under Article 226
of the Constitution is not to be exercised
whenever there is an error of law. The powers are
purely discretionary and though no limits can be
placed upon that discretion, it must be exercised
along recognised lines and not arbitrarily and one
of the limitations imposed by the courts on
themselves is that they will not exercise
jurisdiction in such class of cases unless
substantial injustice has ensued or is likely to
ensue. That apart, the High Court while
exercising the jurisdiction under Article 226 of the
Constitution can always take cognizance of the
entire facts and circumstances and pass
appropriate directions to balance the justice. The
jurisdiction being extraordinary it is required to be
exercised keeping in mind the principles of
equity.....”
9. The common thread flowing from the above referred judgments
of the Supreme Court with regard to the nature of power and
jurisdiction under Article 226 is to the effect that the High
Court's power is equitable and discretionary. The High Court is
required to exercise the jurisdiction to reach injustice wherever
it is found. There are no limits to the power, the same should
not be exercised unless substantial injustice has ensued or is
3(2014) 13 SCC 681
likely to ensue and further that the Court can always take
cognizance of the entire facts and circumstances and pass
appropriate directions to balance the justice. It also follows that
the wide words of Article 226 are designed for service of the
lowly numbers in their grievances if the subject belongs to the
court's province and the remedy is appropriate to the judicial
process and that the High Court should not fail to intervene
when a grave error has crept in and injustice or arbitrariness
has ushered.
10. In the case in hand, for the mistake of one or the other
authority, a wholly peculiar and anomalous situation has crept
in wherein the beneficiary i.e. RDA having floated a housing
scheme seeking consent of the land owners whose land is
covered within the scheme area and the petitioners have
accorded such consent yet by mistake the Land Acquisition
Officer proceeded to acquire the petitioners' land because a
mistake was committed by the RDA at the beginning.
Resultantly, the award having been passed now the petitioners
are unnecessarily required to receive the amount, pay some tax
like income tax (TDS) etc., on the same and then redeposit the
amount with the RDA for obtaining reconstituted plots.
11. In a situation like this, the Court's endeavor should be to drive
the parties to settle the dispute rather than to aggravate the
same and put the parties in a state of suspended animation
with regard to the subject matter. When the petitioners submit
that they will face difficulty as they may be required to make
payment of income tax if they receive the amount of
compensation and then deposit the same with the RDA, which
would otherwise may not be commensurate with the terms of
the scheme floated by the RDA to which the petitioners have
agreed, it is desirable in the interest of justice to dispose of this
writ petition in the following manner.
 The land acquisition award in respect of the
petitioners' land is quashed.
 The Land Acquisition Officer shall return the amount of
compensation qua the petitioners' land to the RDA.
 On receipt of the amount of compensation, the RDA
shall finalize the allotment of reconstituted plots in
favour of the petitioners.
12. Accordingly, the writ petition is allowed to the extent indicated
above. No order as to costs.
J u d g e
Gowri