SMT. KANAK AND ANR.versusU.P. AVAS EVAM VIKAS PARISHAD AND ORS.

A                          SMT. KANAK AND ANR.
                                        v.
              U.P. AVAS EVAM VIKAS PARISHAD AND ORS.

                             SEPTEMBER I, 2003

B                  [V.N. KHARE, CJ. AND S.B. SINHA, J.]

          UP. Nagar Mahapalika Adhiniyam, 1959-Section 381-Housing
  Scheme framed by Agra Nagar Palika-Respondent-Parishad formed in
   1965 to which the execution ofthe scheme was transferred-Application for
C reference made by claimants due to dissatisfaction as regards quantum of
   compensation but the respondent-Parishad was not made party-No
  reference made for eight years and in the meanwhile several deeds were
   executed assigning compensation rights to the appellants-Value of
   compensation was enhanced on reference and the respondent-Parishad
  filed an appeal before the High Court without the required pre-deposit,
D fitness certificate and also being time barred-Writ petition was also filed
   against the same impugned award-Appeal was dismissed but the writ
  petition was allowed and both parties filed appeals against the judgments-
   Held, merely execution ofthe scheme was transferred, therefore, procedures
   contained in Mahapalika Adhiniyam were to be followed-No application
E for fitness certificate was possible as respondent was not made a party in
   the Tribunal and the appeal was net maintainable the condition of pre-
   deposit did not arise-Writ petition was maintainable as there was no locus
   to file appeal-Parallel remedies not allowed to continue simultaneously
   but as appeal was not maintainable writ petition could be maintained-
F Respondent-Parishad had been seriously prejudiced by non-service ofnotice
   as regards proceedings before the collector and reference court-Hence
   writ petition maintainable-Matter be remanded back to reference court
   where respondent-Parishad shall be impleaded as a party and all parties
   shall be allowed to adduce their respective evidence.

G        Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965-land
    Acquisition (Amendment) Act, I 984 applicable and all claimants entitled to
    the benefits in terms of the amendments.

         The respondent-Parishad was formed under the Uttar Pradesh
H Avas Evam Vikas Parishad Adhiniyam, 1965. Agra Nagar Mahapalika
                                       n.,
             KANAK v. U.P. AVAS EVAM VIKAS PARISHAD                    233

framed a housing scheme under the U.P. Nagar Mahapalika Adhiniyam,            A
1959 by issuing a notification dated 23.4.1960. Later on, after formation
of the Parishad an agreement was entered into between it and the Agra
Nagar Palika as regards transfer of execution of the said scheme. The
possession of land was taken on or about 18.6.1971, which was valued
at the rate of Rs. 1.34 per square yard. However, only a part of the          B
determined sum was paid to the owners of the land and the rest was
withheld due to dispute in titles. An application for reference was moved
before the Collector as the owners of the land were dissatisfied with the
quantum of the compensation.

      Several registered deeds of sale were executed by the owners            C
assigning their compensation rights as no reference was made for a
period of eight years. The appellants are those assignees. The Tribunal
constituted for adjudicating on the reference assessed the market value
of the land at Rs. 12 per square yard in relation to some other lands.
Later on a similar award was passed in respect of the land in question        D
on 24.5.1993 along with other statutory benefits and damages. The
respondent-Parishad, which was not a party in the reference court,
preferred an appeal in the High Court against the award, which was
barred by limitation, under Section 381 of the Mahapalika Adhiniyam,
1959. The appeal was filed without the pre-deposit and the required           E
fitness certificate. The appeal was admitted and during its pendency the
respondent-Parishad filed a writ petition challenging the award
contending that the condition of pre-deposit was onerous. The High
Court by a composite judgment dismissed the appeal as conditions
under Section 381 of the Mahapalika Adhiniyam were not complied
with but held that the writ petition was maintainable and reduced the         F
determined market value, denied statutory and consequential benefits,
disallowed claim of solatium and rejected the damages awarded. The
respondent-Parishad filed an appeal against dismissal of their first appeal
in the High Court and the appellants filed this appeal against the
judgment in the writ petition.                                                G
      The appellants contended that as Section 381 of the Mahapalika
Adhiniyam provided a statutory remedy, the writ petition was not
maintainable; that two parallel remedies were not maintainable as the
first appeal was not withdrawn before filing the writ petition; that no       H
    234                  SUPREME COURT REPORTS [2003) SUPP. 3 S.C.R.

A case had been made out for overcoming the bar of alternative remedy
    in the writ petition before the High Court, that the respondent-Parishad
    was not justified in submitting that it had no formal notice of the
    reference proceedings; that whe.1 the first appeal was dismissed the
    award had attained finality and the same could not have been interfered
B   with by allowing the writ petition :rnd as the respondent-Parishad had
    not preferred any appeal against the judgment on the writ petition, the
    decision of the Tribunal, shall operate as res-judicata.

          The respondents contended that there was no settled law as regards
    locus of the Parishad to file appeal against the judgment of reference
C   court, therefore, a writ petition was also filed; that the appellants could
    not have derived locus standi to take part in the proceedings before the
    Land Acquisition Tribunal or even this Court; that the deeds of
    assignment made in favour of the appellants are illegal as per Section
    23 of the Indian Contract Act; and that the provisions of the Land
D   Acquisition Act were amended in 1984 so as to benefit genuine owners
    of land and not imposters like the appellants who have purchased
    litigation for unjust enrichment.

          Disposing of the matters, the Court

E        HELD : 1. The provisions of the Land Acquisition Act are to be
    read into the provisions of the Adhiniyam of 1965 and the claimants
    shall be entitled to all the benefits in terms of the Land Acquisition
    (Amendment) Act, 1984. (242-A, BJ

          Savitri Cairae v. UP. Avas Evam Vikas Parishad & Anr., (2003) 6
F SCC 255; UP. Avas Evam Vik.as Parishadv. Jainual Islam, (1998) 2 SCC
    467; Nagpur Improvement Trust v. Vithal Rao, [1973) 1 SCC 500 and
    Nagpur Improvement Trustv. Vasantrao & Ors., [2002) 7 SCC 657, relied
    on.

G        2.1. It is not in dispute that merely execution of the scheme was
    alone transferred in favour of the respondent-Parishad. Therefore, the
    procedures contained in the Mahapalika Adhiniyam for the purpose of
    acquisition of land were to be followed. (242-G)

          2.2. The respondent-Parishad could not have applied for grant of
H   certificate, as it was not a party before the Tribunal. Therefore, the
                 KANAK v. U.P. AVAS EVAM VJKAS PARISHAD                     235

    question of granting a certificate or refusal to grant the same so as to       A
    enable the maintainability of an appeal before the High Court did not
    arise. No appeal could have been preferred nor was it maintainable, as
    the conditions precedent thereof were not capable of being satisfied.
    When the appeal was not maintainable the same was for all intent and
    purport non-est in the eye of law. Therefore, if the appeal was not            B
    maintainable, the question of complying with other conditions precedent
    such as depositing the awarded amount would also not arise. It was
    entitled to file a writ petition as no recourse to provisions of Section 381
    of the Mahapalika Adhiniyam was permissible. (243-F, G, 244-A, BJ

>
          3.1. It is one thing to say that the High Court in exercise of its       C
    jurisdiction under Article 226 of the Constitution of India may not
    grant a relief on the ground of existence of alternative remedy but it is
    another thing to say that the writ petition was not maintainable at all.
    The legal position as regard intervention of a person for whose benefit
    the land was to be acquired who was ultimately responsible for payment         D
    of compensation was in a fluid state. There were decisions and decisions
    and the law was finally laid down by this Court. Presumably having
    regard to the objections as regard maintainability of the appeal the
    respondent was advised to file a writ petition. Under the law based in
    judicial decisions as then existed the Parishad had no locus standi to file    E
    appeal before the High Court and therefore a writ petition was the only
    remedy available. [244-C-F]

         U.P. Avas Evam Vikash Parishad v. Gyan Devi (Dead) By L.Rs. &
    Ors., [I 995] 2 SCC 326, relied on.
                                                                                   F
         Sadhna Lodh v. National Insurance Co. Ltd., (2003] 3 SCC 524; Seth
    Chand Ratan v. Pandit Durga Prasad, (2003) 5 SCC 399; Sheodan Singh
    v. Daryao, [1966) 3 SCR 300; Shanker Ram Chandra v. Krishnaji, [1969]
    2 SCC 74; Kanai Lal Sethi v. Collector ofLand Customs, Calcutta, (1956)
    60 Calcutta Weekly Notes 1042; Badri Narain Singh v. Kamdeo Prasad             G
    Singh, [1962) 3 SCR 759 and Premier Tyres v. KSRTC, [1993] Supp. 2
    sec 146, distinguished.
         3.2. The writ petition was entertained and the appllants filed a
    counter affidavit. The matter was argued on merits and in that view of
    the matter it is too late in the day to contend that an alternative remedy     H
    236                  SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A should have been availed. In an ordinary situation two parallel remedies
    could not have been allowed to continue simultaneously but as an appeal
    was not maintainable at the instance of the respondent and the later
    proceedings were nullified, the writ petition was maintainable.
                                                      (244-F, G, 245-B, q

B         L. Hirday Narain v. Income Tax Officer, Bareilly, 11970) 2 SCC 355,
    relied on.

         Bombay Metropolitan Region Development Authority v. Golak Patel
    Vo/kart Ltd, (1995] I SCC 642, distinguished.

C        4. No formal notice was served upon the respondent as regards the
    proceedings in the reference court. The respondent was not represented
    even before the Collector. It had been prejudiced by reason of non-
    service of notice. The exception carried out in the matter of service of
    notice to the local authority is not only confined to its knowledge a bout
D   the pendency of the acquisition proceedings before the Collector or the
    reference court but also any prejudice on account thereof. These two
    conditions are to be read conjunctively and not disjunctively. The
    respondent filed a writ petition because it was seriously prejudiced.
                                                         [245-D, E, 246-A, BJ

E        UP. Avas Evam Vikas Parishadv. GyanDevi (Dead) by L.Rs. & Ors.,
    [1995] 2 sec 326, relied on.

          5. The High Court cannot be said to have committed any illegality
    in allowing the writ petition but it should have remitted the matter back
    to the reference court directing that the respondent-Parishad be
F   impleaded as a party enabling its cross-examination and to bring on
    record other relevant material and leave it open to the appellants to
    adduce evidence contra. The impugned judgment is set aside and the
    matter is remitted back to the reference court where the respondent-
    Parishad shall be impleaded as a party and all parties be allowed to
G   adduce their respective evidence and raise all contentions including
    that of the legality of the deeds of assignment. (247-D, 248-A]

    CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4170 of 1999.

          From the Judgment and order dated 20.5.98 of the Allahabad High
H Court in C.M.W.P. No. 11625 of 1996.
        KANAK v. U.P. AVAS EVAM VIKAS PARISHAD [SINHA, J.]                237

                                   WITH                                          A
     C.A. No. 4171 of 1999.

    Dinesh Dwivedi, P.K. Jain, K.C. Jain, F.C. Agarwala, Mahesh
Agarwal, and Rishi Agarwal for the appearing parties.

     The Judgment of the Court was delivered by
                                                                                 B
      S.B. SINHA, J : Whether and, if any, to what extent a Writ Petition
will be maintainable at the instance of the respondent-Parishad questioning
an award made on a reference under Section 18 of the Land Acquisition
Act is the primal question involved in these appeals, which arise of a           C
judgment and order dated 20.5.1998 passed by a Division Bench of the
Allahabad High Court in First Appeal No. 549 of 1994 and Civil Misc.
Writ Petition No. 11625 of 1996.

BACKGROUND FACTS:

      The respondent herein is a statutory body created under the provisions
                                                                                 D
of Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 (hereinafter
referred to as 'the 1965 Adhiniyam ').

      Agra Nagar Mahapalika, a body constituted under Uttar Pradesh
Municipal Corporations Adhiniyam, 1959 framed a housing scheme                   E
entitled "Ghatwasan Grah Isthan Evam Sarak Yojna". It issued a notification
on 23.4.1960 under Section 357 of U.P. Nagar Mahapalika Adhiniyam
1959 (hereinafter referred to as 'Mahapalika Adhiniyam ')which is equivalent
to Section 4(1) of the Land Acquisition Act.

      A declaration purported to be in terms of Section 363 of the               F
Mahapalika Adhiniyam which is in pari materia with Section 6 of the Land
Acquisition Act was issued on 26.9.1964. The respondent - Parishad was
constituted in terms of the 1965 Adhiniyam. After the respondent-Parishad
came into being, an agreement was executed between the Mahapalika and
the Paris had to transfer the execution of the said scheme in terms of Section   G
47 of the 1965 Adhiniyam. In furtherance of the aforementioned notification
under Section 357 and a declaration under Section 363 of the Mahapalika
Adhiniyam, the Special Land Acquisition Officer (SLAO) took possession
of the land sought to be acquired on or abot•t 18.6.1971. An award in
relation thereto upon assessing the market value thereof was made by the
SLAO on or about 24.11.1972 at the rate of Rs. 1.34 per square yard.             H
    238                   SUPREME COURT REPORTS (2003] SUPP. 3 S.C.R.

A Allegedly, in his award it was held that the acquired land was surrounded
    by various colonies and localities and was of full building potentiality.
    Within the determined amount of Rs. 89,914.24, a sum of Rs. 33,573.48
    was paid to the owners of the land but payment in relation to the rest
    thereof, namely, Rs. 56,340.76 was withheld having regard to the dispute
B   of title in relation thereto. The owners of the land purported to be aggrieved
    by and dissatisfied with the quantum of compensation awarded by the
    SLAO moved an application for reference before the Collector, Agra on
     1.1.1973. But no reference was made for a period of eight years. Several
    registered deeds of sale, however, were executed by the owners in favour
    of several persons assigning their compensation rights. The said assignees
C   are presently represented by the appellants.

          Allegedly, the Tribunal constituted for adjudicating on the reference
    assessed the market value of the land at the rate of Rs. 12 per square yard
    by reason of two awards in relation to some other lands; one of which
    is said to have been accepted by the State. According to the appellants,
D   having regard to the fact that the land in question was contiguous to the
    lands which were the subject matter of reference, the Tribunal also made
    an award on 24.5.1993 assessing the market value at the rate of Rs. 12 per
    square yard keeping in view the exemplar-Award. Other statutory benefits
    in terms of the Land Acquisition (Amendment) Act, 1984 were also
E   granted. The Tribunal furthermore awarded damages in terms of Section
    48A of the Act.

         The respondent-Parishad preferred an appeal thereagainst before the
    High Court purported to be in terms of Section 381 of the Mahapalika
    Adhiniyam. The said appeal, however, was barred by 100-days. No pre-
F   deposit was also made in terms of Sub-Section (3) of Section 381 of the
    Mahapalika Adhiniyam nor any fitness certificate to prefer an appeal in
    terms of Sub-Section ( 1) of Section 381 thereof was granted. Despite the
    said defect, however, by an order dated 30th September, 1994 the High
    Court admitted the appeal without granting special leave and passed the
G   following order:

             "Admit.

             Issue notice on the question of limitation, call for record. Put for
             hearing after receipt of record as the land acquired in 1964.
H            Learned counsel for the claimants entered appearance. He may
       KANAK v. U.P. AVAS EVAM VIKAS PARISHAD [SINHA, J.)               239

         file counter affidavit to the application u/s 5 of Limitation Act.    A
         Learned Counsel for the appellant has served the memo of appeal
         and the copy of award on learned standing counsel for respondent
         nos. 3 and 4. The notice is treated sufficient."

      During pendency of the said appeal, the Parishad also filed a writ       B
petition against the award dated 24.5.1993 inter alia alleging therein that
the condition of pre-deposit was onerous.

      The appellants herein, however, moved an application for dismissal
of the appeal for alleged non-compliance of the mandatory provisions of
Section 381 of the Mahapalika Adhiniyam. In the Counter-Affidavit to the       C
Writ Petition filed by them also, the maintainability of the said appeal was
came to be questioned.

     The First Appeal as also the writ petition were heard analogously and
by reason of a composite judgment dated 20.5.1998 the High Court, while
dismissing the First Appeal holding that the appeal under Section 54 of        D
the Land Acquisition Act was not maintainable as the respondent did not
comply with the conditions under Section 381 of the Mahapalika Adhiniyam;
held that the writ petition was maintainable. It was held:

         "The appeal already filed by the Parishad is not maintainable and     E
         so the Parishad cannot be debarred from filing writ petition.

         The alternative remedy of Appeal under the Nagar Mahapalika
         Adhiniyam is onerous.

         Since no formal notice has been served on the Parishad, as per        F
         UPAEVP v. Gyan Devi, AIR (1995) SC 724, the writ petition
         under Article 226, is entertainable.

         The writ petition has been filed to avoid any controvery as to
         maintainability of its appeal without deposit, which was not          G
         clear."

      In the Writ Petition, the High Court decided the case on merits as a
result whereof:

         (i)   The market value determined by the Tribunal was reduced;        H
    240                   SUPREME COURT REPORTS (2003] SUPP. 3 S.C.R.

A            (ii)   The statutory and consequential benefit~ of 1967 Act and
                    1984 Act were denied;

             (iii) The claim of solatium was disallowed;

             (iv) Damages under Section 48A of the Land Acquisition Act
B                 were rejected.

         Whereas the claimants had filed the appeal against the judgment of
    the High Court from the writ petition, the Parishad had filed the appeal
    against the dismissal of the first appeal.
c SUBMISSIONS:
          Mr. Sunil Gupta, the learned senior counsel appearing on behalf of
    the Appellants would submit that keeping in view the fact that Section 381
    of the Mahapalika Adhiniyam provided for a statutory remedy, the writ
D   petition was not maintainable. Reliance in this behalf has been placed on
    Sadhna Lodh v. National Insurance Company Ltd., (2003] 3 SCC 524 and
    Seth Chand Ratan v. Pandit Durga Prasad, (2003] 5 SCC 399.

         In any event as the first appeal was not withdrawn before filing the
E   writ petition, Mr. Gupta would urge, the respondent-Parishad could not
    have maintained two parallel remedies. Reliance in this connection has
    been placed on Bombay Metropolitan Region Development Authority v.
    Gokak Patel Vo/kart Ltd., [1995] I SCC 642.

          In the alternative, (i) it was submitted that the High Court erred in
F entertaining the writ petition on the ground of onerousness of pre-deposit,
    as no case had been made out for overcoming the bar of alternative remedy.
    (ii) the finding of the High Court to the effect that no formal notice was
    served upon the respondent-Parishad was contrary to the records of the case
    inasmuch as the Parish ad had full know ledge of the reference proceedings
G   and as such it was not entitled to take benefit of the decision of this Court
    in UP. Avas Evam Vikas Parishad v. Gyan Devi (Dead) By LRs. And Ors.,
    [1995] 2 sec 326.

          The learned counsel would argue that as the Parishad's appeal was
H dismissed, the award and decree of the Tribunal has attained finality lllld,
       KANAK v. U.P. AVAS EVAM VIKAS PARISHAD [SINHA, J.)               241

thus, the same could not have been interfered with by allowing the writ        A
petition. Reliance in this connection has been placed on Sheodan Singh
v. Daryao, [1966] 3 SCR 300, Seth Chand Ratan (supra), Shanker Ram
Chandra v. Krishnaji, [1969] 2 SCC 74 and Kanai Lal Sethi v. Collector
of Land Customs, Calcutta, (1956) 60 Calcutta Weekly Notes 1042.

     In the event it be held that the writ petition was not maintainable, it   B
was argued, the Parishad having not preferred any appeal against the writ
judgment, the decision of the Tribunal shall operate as res judicata.
Reliance in this connection has been placed on Badri Narian Singh v.
Kamdeo Prasad Singh, [1962] 3 SCR 759 and Premier Tyres v. KSRTC,
[1993] Supp. 2 sec 146.                                                        C
      Mr. M.N. Rao, the learned senior counsel appearing on behalf of the
respondent-Parishad, on the other hand, would submit that the law was not
settled at the time as regard locus of Parishad to file appeal against the
judgment of Reference Court and in that view of the matter the writ petition
was also filed. The learned counsel would contend that having regard to        D
the provisions contained in Section 18 of the Land Acquisition Act, the
appellants cannot be said to have derived locus standi to take part in the
proceedings before the Land Acquisition Tribunal or for that matter filing
the Appeal before this Court.
                                                                               E
      According to the learned counsel, the deeds of assignment made in
favour of the appellants herein by the original claimants are illegal having
regard to the provisions contained in Section 23 of the Indian Contract Act.
The learned counsel would contend that the provisions of the Act were
amended in the year 1984 so as to benefit the persons who are owners of
the land and not imposters like the appellants herein who have purchased       F
litigation with a view to unjustly enrich themselves.

BENEFIT UNDER THE 1984 AMENDING ACT:

      So far as the question as to whether the claimants were entitled to      G
solatium interest and additional amount is concerned, the same need not
detain us inasmuch as this Court in Savitri Cairae v. U.P. Avas Evam Vikas
Parishad and Anr., [2003] 6 SCC 255 relying on or on the basis of the
decisions of this Court inter alia in U.P. Avas Evam Vikas Parishad v.
Jainul Islam, [1998] 2 SCC 467 Nagpur Improvement Trust v. Vithal Rao,
[1973] I SCC500 and NagpurimprovementTrustv. VasantraoandOrs.,                 H
    242                   SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
A [2002] 7 sec 657 held that the provisions of the Land Acquisition Act
    are to be read into the provisions of the Adhiniyam. The ratio of the said
    Judgment shall apply to this case also and thus, the claimants shall be
    entitled to all the benefits in terms of the Land Acquisition (Amendment)
    Act, 1984.

B MAINTAINABILITY OF THE APPEAL:
          Section 47 of the 1965 Adhiniyam reads thus:

          "Execution of other schemes by the Board:
c            (I)   Without prejudice to the power of the State Government
                   under sub-section (2), the Board may, on such terms and
                   conditions as may be agreed upon between the Board and
                   any other local authority, take over the execution or further
                   execution of any housing or improvement scheme undertaken
D                  by such local authority, and the Board shall thereafter
                   execute such schemes as if it had come into force under sub-
                   section (5) of Section 32 of this Act.



E            (4)   Whenever the execution or further execution of a scheme is
                   transferred to the Board under sub-section (I) of sub-section
                   (2), any legal proceeding, including any proceeding under
                   the Land Acquisition Act, 1894 (Act No. I of 1894), pending
                   in relation to that scheme by or against the Nagar Mahapalika
F                  may be continued, prosecuted or enforced by or against the
                   doard."

          It is not in dispute that on or about 31.5 .1968 merely the execution
    of the Scheme alone was transferred. Thus, the entire scheme was not
G   transferred in favour of the Parishad by the Nagar Mahapalika. In that view
    of the matter the procedures contained in the Mahapalika Adhiniyam for
    the purpose of acquisition of land indisputably were to be followed.
    Section 381 of the Mahapalika Adhiniyam reads thus:

             "Appeals -1) An appeal to the High Court shall lie from a decision
H            of the Tribunal, if -
        KANAK v. U.P. AVAS EVAM VIKAS PARISHAD [SINHA, J.]                 243

         (a)   the Tribunal grants a certificate that the case is a fit one for    A
               appeal, or

         (b)   the High Court grants special leave to appeal, provided that
               the High Court shall not grant such special leave unless the
               Tribunal has refused to grant a certificate under clause (a).       B
         (2) An appeal under sub-section ( 1) shall lie only on one or more
         of the following grounds, namely -

         (a)   the decision being contrary to law or to some usage having
               the force of law;                                                   C
         (b)   the decision having failed to determine some material issue
               of !aw or usage having the force of law;

         (c)   a substantial error or defect which may have produced an
               error or defect in the decision of the case upon merits either      D
               on a point of fact or of law."

      A bare perusal of the aforementioned provision would clearly go to
show that the appeal can be preferred if a certificate is granted in that behalf
by the Tribunal certifying the same to be a fit case for appeal or a special       E
leave is granted by the High Court on the ground of refusal on the part
of the Tribunal to grant certificate under Clause (a).

     The respondent herein was not a party before the Tribunal. It, thus,
could not have applied for grant of a certificate for appeal to the High Court     F
nor did it do so in fact. In such a situation the question of the Tribunal's
granting a certificate or refusing to grant the same so as to enable the
Parishad to maintain an appeal before the High Court in terms of Sub-
section ( 1) of Section 381 did not arise. Having regard to the nature of
the provisions contained in Section 381, no appeal could have been
preferred by it nor was it maintainable as the conditions precedent therefor       G
were not capable of being satisfied. Once it is held that the appeal was
not maintainable, the same was, for all intent and purport, non-est in the
eye of law.

     Thus, if the appeal preferred by the respondent-Parishad was not              H
    244                   SUPREME COURT REPORTS (2003] SUPP. 3 S.C.R.

A maintainable, the question of complying with the conditions precedent
    therefor, namely, depositing the awarded amount would also not arise.
    Once it is held that the respondent could not have taken recourse to the
    provisions of Section 381 of the Mahapalika Adhiniyam there cannot be
    any doubt whatsoever that it was entitled to file writ petition.

B MAINTAINABILITY OF THE WRIT APPEAL:
         The writ petition for the reasons stated hereinbefore was maintainable.
  It is one thing to say that the High Court in exercise of its jurisdiction under
  Article 226 of the Constitution of India may not grant a relief inter alia
C on the ground of existence of alternative remedy but it is another thing to
  say that the writ petition was not maintainable at all.

          The legal position as regard intervention of a person for whose benefit
    the land was to be acquired who was ultimately responsible for payment
D   of compensation was in a fluid stak. There were decisions and decisions.
    The law was laid down by the Court in Gyan Devi (supra).

         The Tribunal, as stated hereinbefore, had made this award as far back
    on 24.5.1993 and the respondent was advised to file appeal on 7.2.1994.
    Presumably having regard to the objections as regard maintainability of the
E   appeal taken by the Registry of the High Court as also the objection raised
    by the appellants herein the respondent was advised to file a writ petition.

          Under the law based on judicial decisions as then existed Parishad
    had no locus standi to file appeal before the High Court and therefore writ
F   petition at the instance of Parishad was only remedy available.

          Furthennore, this writ petition was entertained. The appellants herein
    filed a counter affidavit. The matter was argued on merit and in that view
    of the matter it is too late in the day to contend that the respondent herein
    should have availed alternative remedy.
G
         In L. Hirday Narain v. Income-Tax Officer, Bareilly, AIR (1971) SC
    33 : (I 970] 2 sec 355 the law was laid down in the following terms:

             "We are unable to hold that because a revision application
H            could have been moved for an order correcting the order of the
       KANAK v. U.P. AVAS EVAM VIKAS PARISHAD [SINHA, J.]               245

         Income-tax Officer under Section 35, but was not moved, the            A
         High Court would be justified in dismissing as not maintainable
         the petition, which was entertained and was heard on the merits."

      In an ordinary situation this Court could have agreed with the
contention of Mr. Gupta to the effect that two parallel remedies could not      B
have been alloweci to continue simultaneously as has been held in Bombay
Metropolitan Region Development Authority, Bombay (supra) but however,
herein as noticed hereinbefore, the appeal was not maintainable at the
instance of the respondent and, thus, all proceedings taken pursuant thereto
were nullities. For the views we have taken, the writ petition must be held
to be maintainable.                                                             C
SERVICE OF NOTICE:

      It is not in doubt or dispute that no formal notice was served upon
the respondent. A notice to a person, for whose benefit the land is acquired
or who is responsible for payment of compensation amount, was mooted            D
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 to the local authority for whom
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         E
respondent was not represented even before the Collector. In the
aforementioned situation, this Court in Gyan Devi (supra) held:

         "In other words the right conferred under Section 50(2) of the
         L.A. Act carries with it the right to be given adequate notice by
         the Collector as well as the reference court before whom the           F
         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 L. A. Act, can, therefore, be regarded as an integtal part of
         the said right and the failure to give such a notice would result      G
         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."                                                               H
    246                    SUPREME COURT REPORTS (2003] SUPP. 3 S.C.R.

A        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 notice to the local authority is not only confined
  to its know ledge about the pendency of the acquisition proceedings before
  the Collector or the reference court but also any prejudice on account
B thereof. The said two conditions are to be read conjunctively and not
  disjunctively.

          The respondent filed a writ petition because it was seriously prejudiced.
     This Court in Gyan Devi (supra) envisaged the following legal situations:

C             "(i) No notice'vas given to the local authority under sub-section
              (2) of Section 50 of the L.A. Act and as a result the local authority
              could not appear before the Collector to adduce evidence.

              (ii) Notice was served on the local authority and in response to
              said notice the local authority appeared before the Collector; and
D
              (iii) Notice was served on the local authority but in spite of service
              of such notice the local authority failed to appear and adduce
              evidence before the Collector."

          The court laid down the criteria where the local authority would be
E necessary party or proper party. It was observed:
              "Since the amount of the compensation is to be paid by the local
              authority and it has an interest in the determination of the said
              amount, which has been given recognition in Section 50(2) of the
F             L. A. Act, the local authority would be a person aggrieved who
              can invoke the jurisdiction of the High Court under Article 226
              of the Constitution to assail the award in spite of the proviso
              precluding the local authority from seeking a reference. Such a
              challenge will, however, be limited to the grounds on which
              judicial review is permissible under Article 226 of the Constitution.
G             In a case where the local authority has failed to appear in spite
              of service of notice the local authority can have no cause for
              grievance. Even in such a case it may be permissible for the local
              authority to invoke the jurisdiction of the High Court under
              Article 226 of the Constitution to assail the award if it is vitiated
              by ma/a fides or is perverse."
H.
       KANAK v.1U.P. AVAS EVAM VIK.AS PARISHAD [SINHA, J.]
                (
                                                                         247

      It was further held that presence of the local authority is necessary     A
for a just decision on the question involved in the proceedings before the
reference court as that would enable it to adduce evidence therein and as
such it was entitled to be impleaded as a party.

      Where an appeal has not been filed by the State, it was held that such
an appeal would be maintainable with the leave of the Court. However,           B
in Gyan Devi (supra) this Court did not have any occasion to consider a
provision like one contained in Section 381 of the Mahapalika Adhiniyam
and, thus, the observations of the Court therein would not be relevant for
the purpose of the present case. The High Court, having regard to the facts
and circumstances of this case cannot be said to have committed any             C
illegality in allowing the writ petition.

      However, having said so, in our opinion, the High Court should have
remitted the matter back to the reference court with a direction that the
respondent-Parishad may be impleaded as a party so as to enable it to cross-    D
examine the witnesses examined on behalf of the claimants and examine
its own witnesses and bring on records such other materials as it may seem
fit and proper. It goes without saying it would also be open to the claimants
to adduce evidence contra.

LEGALITY OF THE DEEDS OF ASSIGNMENT:                                            E

      The High Court has held that the deeds of assignments are valid. The
learned counsel appearing on behalf of the parties have addressed us at
great length on the said question. However, the High Court did not address
itself on the question as regards interpretation of Section 18 of the Land      F
Acquisition Act vis-a-vis the relevant provisions of the Mahapalika
Adhiniyam. We, in the facts and circumstances of this case, feel that as
the respondent is being given an opportunity to raise all contentions, it
should also be given an opportunity to raise the aforementioned contention
also before the reference court. For the views we have taken, it is not         G
necessary for us to refer to the other decisions relied upon by Mr. Gupta.

     We, however, in view of above, are not disposed to go into merit of
Civil Appeal No. 4171 of I 999 filed by the Parishad.

     We, therefore, allow the Civil Appeal No. 4170of1999 to the extent         H
    248                   SUPREME COURT REPORTS [2003] SUPP. 3 S.C.it

A mentioned hereinbefore. We, therefore, set aside the impugned judgment
    of the High Court and remit the matter to the reference tribunal with a
    direction to implead the respondent-Parishad as party therein and allow the
    parties to adduce their respective evidence and raise all contentions therein.

           Keeping in view the fact that the acquisition was made as far back
B in the year 1960, we would request the Tribunal to dispose of the matter
    as early as possible and preferably within the period of three months from
    the date of receipt of the records. No Costs.

    A.Q.                                                     Matters disposed of