# Kainash Ram Kochar v. State of U.P. and others

- **Citation:** (2011) 2 ILRA 861
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-07-29
- **Case number:** Civil Misc. Writ Petition No. 36268 of 2011
- **Bench:** Ashok Bhushan, Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kainash-ram-kochar-v-state-of-u-p-and-others-41985
- **Pages:** 13

## Headnote

Act-Section-18Reference-Petitioner
received
compensation under Section 11(2) by
executing
agreement-disclose
willingness of petitioner-subsequently
can not be allowed to take recourse of
reference for enhancement of amountheld-misconceived-not maintainable.

Held: Para 15 and 24

The statute when expressly debars a
person who has received the amount of
compensation without any protest in
pursuance of an award made under
section 11, there is no reason for not
debarring a person from making an
application under section 18 who has
accepted
the
compensation
under
section 11(2) under an agreement.
862 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
The submission of learned Counsel for
the petitioner that since they have not
received notice under section 12 they are
entitled to file application under section
18 is also misconceived. Compensation
having been received in pursuance of an
agreement, there is no question of
making an application under section 18.
Case law discussed:
AIR 1966 Allahabad 84; 2010 (1) ADJ 685;
(2005) 4 Supreme Court Cases 264; 2003 (6)
awc 5222; 1998 (1) AWC 399; (1994) 4
Supreme Court Cases 67; (1997) 9 Supreme
Court Cases 710; 2003 (6) AWC 522; (1995) 5
Supreme Court Cases 746; (2005) 4 Supreme
Court Cases 264; ILR (1883)5 All. 163; AIR
1966 All 84

## Text

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2 All] Kainash Ram Kochar V. State of U.P. and others
861
and fixed a date for delivery of judgment.
Subsequently, the defendant moved an
application for recall of the ex parte
order. The Supreme Court held that the
provisions of Order 9 Rule 7, CPC was
not attracted to a date fixed for delivery of
judgment and it was not a case of
adjourned hearing. In the present case no
date was fixed for delivery of judgment. In
fact after passing of the ex parte order
and before delivery of judgment, the
defendant appeared on the same date and
moved an application. Such application
was clearly maintainable even under
Order 9, Rule 7 CPC."

5. The decision in Arjun Singh
(supra) has also been wrongly referred
and this Court is surprised to see how the
District Judge, Ghaziabad, being a Higher
Judicial Officer, has so misread the
judgment. I am constrained to observe
that the judgment in question raises a
question upon the competence and
understanding of such a high Judicial
Officer.

6. Be that as it may, the order
impugned in this writ petition apparently
cannot sustain. Learned counsel appearing
for respondents no. 1 and 2 also fairly
stated that the order impugned in this writ
petition cannot be defended but requested
that since his claim is pending for the last
two years, the Tribunal may be directed to
decide the same expeditiously.

7. In view of above discussion, writ
petition is allowed. Impugned order dated
13.4.2011 (Annexure 4 to writ petition) is
hereby quashed.

8. Tribunal is directed to consider
petitioner's application under order 9 Rule
7 CPC and pass appropriate order in
accordance with law expeditiously.

9. Registry is directed to place a
copy of this order before Hon'ble
Administrative Judge, Ghaziabad for His
Lordship's kind perusal.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.07.2011

BEFORE
THE HON'BLE ASHOK BHUSHAN,J.
THE HON'BLE RAN VIJAI SINGH,J.

Civil Misc. Writ Petition No. 36268 of 2011

Kainash Ram Kochar

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Uma Nath Pandey

Counsel for the Respondents:
Sri Ramendra Pratap Singh
C.S.C.

Land
Acquisition
Act-Section-18Reference-Petitioner
received
compensation under Section 11(2) by
executing
agreement-disclose
willingness of petitioner-subsequently
can not be allowed to take recourse of
reference for enhancement of amountheld-misconceived-not maintainable.

Held: Para 15 and 24

The statute when expressly debars a
person who has received the amount of
compensation without any protest in
pursuance of an award made under
section 11, there is no reason for not
debarring a person from making an
application under section 18 who has
accepted
the
compensation
under
section 11(2) under an agreement.
862 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
The submission of learned Counsel for
the petitioner that since they have not
received notice under section 12 they are
entitled to file application under section
18 is also misconceived. Compensation
having been received in pursuance of an
agreement, there is no question of
making an application under section 18.
Case law discussed:
AIR 1966 Allahabad 84; 2010 (1) ADJ 685;
(2005) 4 Supreme Court Cases 264; 2003 (6)
awc 5222; 1998 (1) AWC 399; (1994) 4
Supreme Court Cases 67; (1997) 9 Supreme
Court Cases 710; 2003 (6) AWC 522; (1995) 5
Supreme Court Cases 746; (2005) 4 Supreme
Court Cases 264; ILR (1883)5 All. 163; AIR
1966 All 84

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard Sri Uma Nath Pandey,
learned counsel for the petitioner and Sri
Ramendra Pratap Singh learned counsel
for the respondent no. 3 as well as learned
Standing Counsel for the respondents No.
1 and 2.

2. By this writ petition the petitioner
has prayed for quashing the order dated
11.5.2011, passed by the Additional
District Magistrate (Land Acquisition),
Gautam Buddha Nagar rejecting the
application submitted by the petitioner for
making a reference under section 18 of
the
Land
Acquisition
Act
for
enhancement
of
compensation.
A
mandamus has also been sought directing
the respondent authorities to send the
reference before the District Judge,
Gautam Buddha Nagar.

3. Brief facts of the case as emerged
from the writ petition are; the petitioner's
Khata No. 11 Gata 5M area 0.2020
hectare
situate
in
village
Khanpur,
Pargana Dankaur, Tahsil Sadar was
acquired under the provisions of the Land
Acquisition Act. The compensation for
the land was determined in accordance
with the provisions of the U.P. Land
Acquisition
Act
(Determination
of
compensation and Declaration of Award
by Agreement) Rules, 1997 and was paid
to the petitioner by voucher No. 089730
dated 18.11.2008 to the extent of Rs.
1492780/- which was received by the
petitioner. After more than two years
from receiving the compensation, the
petitioner moved an application before the
Additional District Magistrate (Land
Acquisition) on 16.3.2011 for making a
reference under section 18 of the Land
Acquisition Act claiming compensation at
the rate of Rs. 50,000/- per square meter
along with interest and solatium thereon.
The said application has been rejected by
the Additional District Magistrate (Land
Acquisition) by the impugned order dated
11.5.2011 on the ground that the
petitioner
having
received
the
compensation
under
an
agreement
according to 1997 Rules, his application
for making reference is not maintainable.
It has also been held by the Additional
District Magistrate that in the agreement
entered by the petitioner, there is specific
clause that the petitioner shall not make a
claim for any other amount except the
amount agreed upon. The Petitioner's case
in the writ petition is that the award of
acquired
land
has
been
made
in
accordance with 1997 Rules but up till
now no notice under section 12 of the
Land Acquisition Act has been received
by the petitioner. It is further alleged that
the compensation prepared was accepted
under protest as the petitioner was not
satisfied with the rate. It is further stated
that the petitioner came to know about the
rate of surrounding area hence he made
request for payment of compensation at
the rate of Rs. 50,000/- per square meter.
2 All] Kainash Ram Kochar V. State of U.P. and others
863
It is further pleaded that under section 18
of the Act, any tenure holder can make
the reference within six weeks from the
date of receiving the notice under section
12.

4. Learned counsel for the petitioner
in support of the writ petition contended
that the mere fact that the petitioner
received the compensation under an
agreement does not preclude him from
making an application for reference under
section 18 since the petitioner never
received notice under section 12. He
further submits that the provisions of
Section 18 can be invoked both by
persons, who has received compensation
under agreement as well as by person who
has received compensation under an
award made under section 11 of the Land
Acquisition
Act.
He
submits
that
Additional District Magistrate (Land
Acquisition) committed error in rejecting
the application of the petitioner for
making a reference. Learned Counsel for
the petitioner further submitted that
merely because the petitioner has entered
into an agreement under 1997 Rules,
reference under section 18 of the Act is
not prohibited. It is submitted that every
procedure is to understood as permissible
till it is shown to be prohibited by the law.
In support of his submissions, learned
counsel for the petitioner placed reliance
on the judgment of the apex Court in
(2011) 2 Supreme Court Cases 705
Rajendra Prasad Gupta Vs. Prakash
Chandra Mishra and others, AIR 1966
Allahabad 84 Raj Narain Saxena Vs.
Bhim Sen and others and Division
Bench judgment of this Court reported in
2010 (1) ADJ 685 Preetam Singh Vs.
State of U.P. and others.

5. Sri Ramendra Pratap Singh,
learned counsel for the respondent No. 3,
refuting the submissions of learned
counsel for the petitioner contended that
section 18 of the Land Acquisition Act
was not attracted in the present case since
the petitioner received the compensation
under an agreement with a condition that
he shall not claim any further amount
except the agreed amount. It is submitted
that application for reference can be
moved by only that person who has not
accepted the award. He submits that for
those
persons
who
have
received
compensation under an agreement, the
provisions of section 18 are not attracted.
He submits that the petitioner accepted
the amount without any protest under an
agreement by voucher dated 18.11.2008
and the application filed by the petitioner
after more than two years cannot be
entertained and has rightly been rejected
by the Additional District Magistrate
(Land Acquisition). Reliance has been
placed by learned counsel for the
respondent on the judgment of the apex
Court in the cases of Rajendra Prasad
Gupta Vs. Prakash Chandra Mishra
and others, reported in (2005) 4 Supreme
Court Cases 264, State of Karnataka &
Anr Vs. Sangappa Dyavappa Biradar
& Ors, a Division Bench judgment of this
Court reported in 2003 (6) AWC 5222,
Ram
Chander
&
Ors.
Vs.
The
Collector/Special
Land
Acquisition
Officer, Varanasi & Ors., as well as
1998 (1) AWC 399 Land Acquisition
Officer vs Shivbai And Others.

6.

We
have
considered
the
submissions of learned Counsel for the
parties and have perused the record.
Before we proceed to consider the
respective submissions of learned counsel
for the parties, it is useful to look into the
864 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
statutory scheme as delineated by the
provisions of the Land Acquisition Act
and the Rules framed thereunder.

7. Section 11 of the Act provides for
inquiry and award by the Collector.
Section 11 Sub-sections (1) and (2) which
are relevant are quoted as below:

"11.
Enquiry
and
award
by
Collector. - (1) On the day so fixed, or on
any other day to which the enquiry has
been adjourned, the Collector shall
proceed to enquire into the objection (if
any) which any person interested has
stated pursuant to a notice given under
section 9 to the measurements made
under section 8, and into the value of the
land at the date of the publication of the
notification under section 4, sub-section
(1), and into the respective interests of the
persons claiming the compensation and
shall make an award under his hand of-

(i) the true area of the land;

(ii) the compensation which in his
opinion should be allowed for the land;
and

(iii) the apportionment of the said
compensation among all the persons
known or believed to be interested in the
land, or whom, or of whose claims, he has
information, whether or not they have
respectively appeared before him :

Provided that no award shall be
made by the Collector under this subsection without the previous approval of
the appropriate Government or of such
officer as the appropriate Government
may authorize in this behalf:

Provided further that it shall be
competent
for
the
appropriate
Government to direct that the Collector
may make such award without such
approval in such class of cases as the
appropriate Government may specify in
this behalf.

(2)
Notwithstanding
anything
contained in sub-section (1), if at any
stage of the proceedings, the Collector is
satisfied that all the persons interested in
the land who appeared before him have
agreed in writing on the matters to be
included in the award of the Collector in
the form prescribed by rules made by the
appropriate Government, he may, without
making further enquiry, make an award
according
to
the
terms
of
such
agreement."

8. The State of U.P. has framed
Rules in exercise of power under section
55 read with Sub-section (2) of Section 11
of the Land Acquisition Act namely; U.P.
Land
Acquisition
(Determination
of
Compensation and Declaration of Award
by Agreement) Rules, 1997. Sub-section
(2) of Section 11 starts with non-obstante
clause i.e. "Notwithstanding anything
contained in sub-section (1), if at any
stage of the proceedings, the Collector is
satisfied that all the persons interested in
the land who appeared before him have
agreed in writing". Thus Sub-section (2)
of Section 11 of the Land Acquisition Act
empowers the Collector to make an award
according to the terms of agreement as
agreed upon notwithstanding anything
contained in Sub-section (1) of Section
11. 1997 Rules have been framed to give
effect to the provisions of Section 11 Subsection (2). Rules 3 and 4 of 1997 Rules
which are relevant are quoted below:
2 All] Kainash Ram Kochar V. State of U.P. and others
865

"3. The Collector may, after hearing
the parties, and upon being satisfied that
the persons interested in the land are
ready
and
willing
to
execute
the
agreement, grant the permission unless,
for reasons to be recorded in writing he
decides to refuse it.

4. (i) The Collector shall, where he
grants the permission inform the persons
interested in the land by registered post,
about date, time and place for the
execution of the agreement.

(ii) The agreement shall be executed
in the form appended to these rules, with
necessary
details
as
to
whether
possession has, or has not, been taken
before the award.

(iii) If the persons so informed fail to
turn up and execute the agreement on
such date, time and place or the extended
date, as the case may be, the Collector
shall proceed to make enquiry under
Section-11 from the stage, at which the
application under Rule 2 was made."

9. The scheme of 1997 Rules as
quoted above clearly indicates that
agreement is to be executed only when
Collector
is
satisfied
that
persons
interested are ready and willing and they
appear for execution of the agreement on
the date and time fixed by the Collector.
Sub clauses (ii) and (iii) of Rule 4 of 1997
Rules clearly provide that in case person
interested fail to appear and execute the
agreement, the Collector shall make
enquiry under section 11 from the stage at
which application under rule 2 was made.
Thus, execution of agreement is possible
only when person interested is agreeable
and execute the agreement. There is
element of willingness on the part of
interested person in execution of the
agreement. The form of agreement which
is referred to under rule 4(ii) is also part
of the Rules. It is useful to quote
conditions No. (1),(2) and (3) of the terms
of agreement as contained in prescribed
proforma of agreement:

"(1) that the Land Acquisition
Officer .....................shall be competent to
declare the award as per term of this
agreement without any further enquiry
which is required to be held under the
provisions of the Land Acquisition Act,
1894.

(2) If the Government deems it
necessary to take immediate possession of
the land under acquisition even though
there is a standing crop on it the
Government will be entitled to do so
provided that compensation for the
standing crop as shown in as per the
award is paid;

(3) that the owner/owners and
interested party/parties shall not claim
any amount in addition to the amount
agreed
upon
as
aforesaid
as
compensation and accept it without any
protest."

10. Further more, following part of
the proforma agreement is also relevant
which is quoted below:

"And whereas the owner/owners
and/or the interested party/ parties
agrees/ agree to refer the matter to the
reference of the Collector or............ and
to accept the award to be made thereon as
compensation payable under Section 23
of the Land Acquisition Act, 1894
including additional amount @ 12%
under sub-section (1-A), solatium @ 30%
866 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
under sub-section (2) thereof for the said
land/lands and also agrees/agree to
apportion the same between themselves as
stated in detail at the end;

11. Thus, compensation which is
paid under the agreement is determined as
per Sections 3 and 23 including additional
amount at the rate of 12% under Subsection (1-A), solatium @ 30% . From the
above,
it
is
clear
that
receiving
compensation under the agreement in
accordance with Section 11(2) read with
1997 Rules clearly indicates acceptance
of compensation by the tenure holder
under an agreement and consent.

12. Sub-sections (1) and (2) of
Section 18 of the Land Acquisition Act
which provide for reference and are
relevant for the present case are quoted
below:

"18. Reference to Court. - (1) Any
person interested who has not accepted
the award may, by written application to
the Collector, require that the matter be
referred
by
the
Collector
for
the
determination of the Court, whether his
objection be to the measurement of the
land, the amount of the compensation, the
person to whom it is payable, or the
apportionment
of
the
compensation
among the persons interested.

(2) The application shall state the
grounds on which objection to the award
is taken:

Provided that every such application
shall be made-

(a) if the person making it was
present
or
represented
before
the
Collector at the time when he made his
award, within six weeks from the date of
the Collector's award;

(b) in other cases, within six weeks of
the receipt of the notice from the
Collector under section 12, sub-section
(2), or within six months from the date of
the Collector's award, whichever period
shall first expire."

13. Sub-section (1) of Section 18
begins with a condition of reference i.e.
"Any person interested who has not
accepted the award may, by written
application
to
the
Collector,"
thus
application for reference can be made by
person interested only on the condition
when "he has not accepted the award".
The person who has accepted the
compensation under an agreement under
section 11(2) read with 1997 Rules cannot
be said to be a person who has not
accepted the award.

14. Even in a case, where award is
made under section 11 and a person
accepting
the
compensation
without
protest is also debarred from making an
application under section 18, which is
clearly
spelled
out
from
specific
provisions of Section 31(2), second
proviso. Section 31(1) (2) is quoted
below:

"31. Payment of compensation or
deposit of same in Court. - (1) On making
an award under section 11, the Collector
shall tender payment of the compensation
awarded by him to the persons interested
entitled thereto according to the award
and shall pay it to them unless prevented
by some one or more of the contingencies
mentioned in the next sub-section.

(2) If they shall not consent to
receive it, or if there be no person
2 All] Kainash Ram Kochar V. State of U.P. and others
867
competent to alienate the land, or if there
be any dispute as to the title to receive the
compensation or as to the apportionment
of it, the Collector shall deposit the
amount of the compensation in the Court
to which a reference under section 18
would be submitted:

Provided that any person admitted to
be interested may receive such payment
under protest as to the sufficiency of the
amount:

Provided also that no person who
has received the amount otherwise than
under protest shall be entitled to make
any application under section 18:

Provided also that nothing herein
contained shall affect the liability of any
person, who may receive the whole or any
part of any compensation awarded under
this Act, to pay the same to the person
lawfully entitled thereto."

15. The statute when expressly
debars a person who has received the
amount of compensation without any
protest in pursuance of an award made
under section 11, there is no reason for
not debarring a person from making an
application under section 18 who has
accepted the compensation under section
11(2) under an agreement.

16. The above view of ours' is also
fully supported by various decisions of
this Court as well as of the apex Court.
The first case which needs consideration
is the apex Court's judgment in Ajit
Singh and others Vs. State of Punjab
and others (1994) 4 Supreme Court
Cases 67. In the said case award was
made under section 11 and some persons
accepted the award under protest and
some accepted without protest. The apex
Court made following observations in
paragraph 5:

"....Inasmuch as the appellants have
filed an application for reference under
section 18 of the Act that wil manifest
their intention. Therefore, the protest
against the award of the Collector is
implied notwithstanding the acceptance of
compensation. The District Judge and the
High Court, therefore, fell into patent
error
in
denying
the
enhanced
compensation to the appellants."

17. The said case laid down that
protest against the award of the Collector
is implied when an application is made
under section 18. The present is a case
where compensation has been accepted
under an agreement under section 11(2) of
the Land Acquisition Act and the above
observation of the apex Court are not
attracted in the present case which is
clearly distinguishable.

18. It is further useful to note
another judgment of the apex Court
reported in (1997) 9 Supreme Court Cases
710
Land
Acquisition
Officer
vs
Shivbai And Others, in which the apex
Court has taken the view that claimants
who received compensation under protest
and who made application under Section
18(1) alone are entitled to seek reference.
Following was laid down by the apex
Court in paragraphs 7 and 9.

"7. Thus it could be seen that when
the parties were present at the time when
the award came to be made, the notice
under Clause (b) of proviso to Sub-section
(2) of Section 18 was not necessary. As a
consequence, within six weeks from the
date of the award an application is
868 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
required to be made for reference under
Section 18. If the amount is received
without protest, by operation of second
proviso to Sub-section (2) of Section 31,
such person who has received the amount
without protest is not entitled to seek a
reference under Section 18.

9. No doubt they had filed the writ
petition in the High Court for seeking
reference. But the High Court's order was
only for making reference on verification
and to find out correct factual position.
The officer himself was in collusion with
the claimants and without making any
enquiry
he
made
the
reference.
Subsequently,
some
persons
were
impleaded to the reference. That itself
indicates that all was not going well. It is
now settled position in law that the
claimants who receive the compensation
under protest and who make application
under Section 18(1), alone are entitled to
seek a reference; third parties, who have
been impleaded, have no right to claim
higher compensation by circumventing
the process of reference under Section 18.
Under these circumstances, the reference
itself is without any jurisdiction and
barred by limitation. Thereby, the award
of the reference court is clearly illegal.
On appeal, the High Court has not
considered all these perspectives and
found it convenient to rely on another
judgment to uphold the award of the civil
court."

19. The Division Bench of this
Court in 2003(6) AWC 522 Ram
Chander
&
Ors.
v.
The
Collector/Special
Land
Acquisition
Officer, Varanasi & Ors noticed both
the above cases and followed the
subsequent judgment of the apex Court in
Land Acquisition Officer vs Shivbai
And Others (supra) and Ajit Singh and
others Vs. State of Punjab and others
(supra). The Division Bench judgment in
Ram Chander's case (supra) was also a
case of award under section 11. The
present case is on a better footing since in
the present case compensation has been
received under section 11 (2).

20. The apex Court had occasion to
consider the question of applicability of
Section 18 in a case of consent award in
(1995) 5 Supreme Court Cases 746 State
of Gujrat and others Vs. Day Shamji Bhai
and others. In the said case land holders
gave their consent in writing agreeing to
accept the compensation determined by
the Land Acquisition Officer. They were
paid
compensation
as
per
consent
agreement signed by them. Subsequently
reference was sought under section 18.
Following was laid down in paragraphs 6
and 9.

"6. In view of the above agreement
and in view of the discussion made by the
Land Acquisition Officer in the award and
working details given in the annexures
made therein, it is clear that the parties
having
contracted
to
receive
compensation
the
question
emerges
whether they are entitled to seek a
reference. On making an award under
Section 11 and issuance of the notice
under Section 12 of the Act, the Collector
is enjoined under Section 31 (1) to tender
payment of the compensation awarded by
him to the interested persons entitled
thereto to receive the compensation
according to the terms of the award.
Under the second proviso to sub- section
(2) of Section 31 "no person who has
received the amount otherwise than under
protest shall be entitled to make any
application under Section 18". The
2 All] Kainash Ram Kochar V. State of U.P. and others
869
entitlement to make reference to civil
court under Section 18 (1) and within the
period prescribed under sub-section (2) is
conditioned upon non-acceptance of the
award. Sub-section (1) of Section 18
makes the matter clear thus:

"Any person interested who has not
accepted the award may, by written
application to the Collector, require that
the matter be referred by the Collector for
the determination of the Court regarding
his objection, be it to the measurement of
the land, the amount of the compensation,
the persons to whom it is payable, or the
apportionment
of
the
compensation
among the persons interested."

The right and entitlement to seek
reference would, therefore, arise when the
amount of compensation was received
under protest in writing which would
manifest the intention of the owner of
non-acceptance of the award. Section 11
(2) opens with an non-obstante clause
"notwithstanding anything contained in
sub-section (1)" and provides that "if at
any stage of the proceedings, the
Collector is satisfied that all the persons
interested in the land who appeared
before him have agreed in writing on the
matters to be included in the award of the
Collector in the form prescribed by rules
made by the appropriate Government, he
may, without making further enquiry,
make an award according to the terms of
such agreement. By virtue of sub-section
(4), "notwithstanding anything contained
in the Registration Act, 1908, no
agreement made under sub-section (2)
shall be liable to registration under that
Act". The award made under Section 11
(2) in terms of the agreement is, therefore,
an award with consent obviating the
necessity of reference under Section 18.

9. By operation of Section 11(4), the
need for registration of the agreement is
obviated. As seen in the contract, the
respondents have forgone their right of
seeking reference in lieu of 25% more
than the compensation determined by the
Collector under Section 11(2) of the Act.
In fact, 25 per cent in addition to the
market value determined by the Collector
in his award under Section 11(1) had
been paid as the consideration to forgo
reference. Even otherwise, once an
agreement was entered by the parties, the
question
of
objection
to
receive
compensation under protest does not
arise. So, they have no right to seek a
reference to the civil court under Section
18 of the Act."

21. The above case clearly lays
down that once an agreement was entered
by the parties, the question of objection to
receive compensation does not arise and
they have no right to make a reference
under section 18. The judgment of the
apex Court in (2005) 4 Supreme Court
Cases 264 State of Karnataka & Anr
Vs. Sangappa Dyavappa Biradar & Ors
was also a case of consent award. It is
useful to quote paragraphs 3,12,14 and
18:

"3. Keeping in view the point
involved in these appeals, it is not
necessary to state the fact of the matter in
great details. Suffice it to point out that
for the purpose of submergence and
construction of canal for the Upper
Krishna Project, the Appellant State
intended to acquire some lands including
the lands belonging to the Respondents
herein.
The
parties
entered
into
negotiations as regard the price of the
lands;
pursuant
whereto
and
in
870 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
furtherance whereof consent awards were
passed by the Special Land Acquisition
Officer. The amount of compensation
awarded in terms of the consent award
was also received by the Respondents in
full satisfaction of their claim. The
Respondents, however, filed applications
for reference to the Civil Court in terms of
Section 18 of the Land Acquisition Act,
1894 (hereinafter referred to as "the Act")
claiming enhanced compensation. The
said prayer was rejected by the Collector
by an order dated 23.8.1999. The
Respondents thereafter filed writ petitions
before the High Court which were marked
as Writ Petition Nos. 41354, 36840 and
36748 of 1999 praying therein for
quashing of the said order as also for a
direction upon the Respondent No.2 to
refer the applications filed by them to the
Civil Court for determining the amount of
compensation in respect of the acquired
lands.

12. A right of a landholder to obtain
an order of reference would arise only
when he has not accepted the award.
Once such award is accepted, no legal
right in him survives for claiming a
reference
to
the
Civil
Court.
An
agreement between the parties as regard
the value of the lands acquired by the
State is binding on the parties. So long as
such agreement and consequently the
consent awards are not set aside in an
appropriate proceeding by a court of law
having jurisdiction in relation thereto, the
same remain binding. It is one thing to
say that agreements are void or voidable
in terms of the provisions of the Indian
Contract Act having been obtained by
fraud, collusion, etc, or are against public
policy but it is another thing to say that
without questioning the validity thereof,
the Respondents could have maintained
their writ petitions. We have noticed
hereinbefore that even in the writ
petitions, the prayers made by the
Respondents were for quashing the order
dated 23.8.1999 passed by the Special
Land Acquisition Officer and for issuance
of a direction upon him to refer the matter
to the Civil Court. The High Court while
exercising its jurisdiction under Article
226 of the Constitution of India, thus,
could not have substituted the award
passed by the Land Acquisition Officer by
reason
of
the
impugned
judgment.
Furthermore, the question as regard the
validity of the agreements had not been
raised before the High Court. As
indicated
hereinbefore,
the
Division
Bench of the High Court had also rejected
the contention raised on behalf of the
Respondents herein to the effect that the
agreements did not conform to the
requirements of Article 299 of the
Constitution of India or had not been
drawn up in the prescribed proforma.

14. An award under the Act is passed
either on consent of the parties or on
adjudication of rival claims. For the
purpose of passing a consent award, it
was not necessary to comply with the
provisions
of
Article
299
of
the
Constitution of India. An agreement
between the parties need not furthermore
be strictly in terms of a prescribed format.

18. Keeping in view the fact that the
condition
precedent
for
maintaining
application for reference under Section
18 is non-acceptance of the award by the
awardee, in our considered opinion, the
Division Bench acted illegally and
without
jurisdiction
in
passing
the
impugned judgment. The learned Single
Judge was right in concluding that the
writ petitions were not maintainable."
2 All] Kainash Ram Kochar V. State of U.P. and others
871

22. Learned counsel for the
petitioner has submitted that since there is
no express prohibition under the Act from
making an application under section 18 by
a person who has received compensation
under an agreement, the application under
section 18 cannot be rejected. Reliance
has been placed on a judgment of the apex
Court Rajendra Prasad Gupta Vs.
Prakash Chandra Mishra and others
(supra). In the aforesaid case, the issue
was as to whether once an application for
withdrawal of a suit is filed, suit stands
dismissed as withdrawn even without any
order or whether second application for
withdrawal of the withdrawal application
is maintainable. In the above context the
apex court relying on a Division Bench
judgment in Narsingh Das. Vs. Mangal
Dubey, ILR (1883) 5 All. 163 and Raj
Narain Saxena Vs. Bhim Sen AIR 1966
All 84, laid down following in paragraphs
3,4,5 and 6 :

"3. The High Court was of the view
that once the application for withdrawal
of the suit is filed the suit stands dismissed
as withdrawn even without any order on
the withdrawal application. Hence, the
second application was not maintainable.

4. We do not agree. Rules of
procedure are handmaids of justice.
Section 151 of the Code of Civil
Procedure gives inherent powers to the
court to do justice. That provision has to
be interpreted to mean that every
procedure is permitted to the court for
doing justice unless expressly prohibited,
and not that every procedure is prohibited
unless expressly permitted. There is no
express bar in filing an application for
withdrawal of the withdrawal application.

5. In Narsingh Das v. Mangal
Dubey, Mahmood, the celebrated Judge
of the Allahabad High Court, observed :-

"Courts are not to act upon the
principle that every procedure it is to be
taken as prohibited unless it is provided
for by the Code, but on the converse
principle that every procedure is to be
understood as permissible till it is shown
to be prohibited by the law. As a matter of
general principle prohibition cannot be
presumed."

6. The above view was followed by a
Full Bench of the Allahabad High Court
in Raj Narain Saxena Vs. Bhim Sen and
we agree with this view. Accordingly, we
are of the opinion that the application
praying for withdrawal of the withdrawal
application was maintainable. We order
accordingly."

23. The apex Court laid down that
every procedure is permitted to the Court
for
doing
justice
unless
expressly
prohibited. There cannot be any dispute
to the proposition as laid down by the
apex Court in the cases of Rajendra
Prasad Gupta and of this Court in Raj
Narain Saxena (supra). In the present
case the application under section 18 is
subject to the conditions as laid down in
Section 18(1) itself that any person who
has not accepted the award may by
written application require the matte to
be referred. Thus, the section clearly
contemplate that a person, who has
accepted the award cannot make an
application for reference under section
18. The same result also flows from
Section Section 31(2) second proviso as
quoted above. Thus, the above judgments
relied by the petitioner do not help the
petitioner in the present case. The case of
872 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Preetam Singh (supra) relied by learned
counsel for the petitioner, although was
considering a case where compensation
was paid on the basis of agreement under
section 11(2) of the Act but the question
considered and decided was that whether
a person is entitled for payment of
interest
in
the
event
a
part
of
compensation has not been paid and paid
with delay. The Court in Preetam Singh
(supra) was not considering the question
as to whether application under section
18 can be made by a person who has
accepted the compensation under an
agreement. Thus, the said judgment does
not help the petitioner to support his
contention that application under section
18 can be filed even though a person has
received
compensation
under
an
agreement. Even in Preetam Singh case
(supra), the court has laid down the
proposition only to the effect that if
certain part of the compensation is not
paid on the date of agreement, the
interest cannot be deprived to the person.
However, it was clearly laid down that
the
petitioners,
who
had
obtained
compensation under agreement, are not
entitled to any amount other than agreed
amount. Following was laid down in
paragraphs 22 and 25:

"22. The petitioners are not entitled
to any amount other than agreed amount,
from any time prior to the date of
agreement but there is nothing to prevent
to apply Section 31 (1) and Section 34, if
a part of the amount under agreement
has not been paid for the reasons, which
are not attributable to them. In this case
we find that 20% compensation was not
deposited by the acquiring body on the
date of agreement. The parties were fully
aware that full amount will not be paid
on the date of agreement. They, however,
did not provide for any interest in the
agreement. But that should not be a
ground to deprive the persons, who lost
their lands, if the payment of a part of
the amount was delayed for years
altogether.

25. Even if the agreed compensation
was paid in the year 2000, the award
under Section 11 (2) of the Act was not
made until 9.1.2009 and thus we find that
the petitioners are entitled to interest,
which should be calculated at the same
rate at which the interest is payable, for
compulsory acquisition of land under
Section 34 of the Act. The writ petitions
are allowed to the extent that all the
petitioners, who have not been paid 20%
compensation,
shall
get
20%
compensation with 9% interest from
30.10.2000 to 29.10.2001 and thereafter
at the rate of 15% upto the date of this
judgment i.e. 18.12.2009 within a period
of one month from the date, when they
apply. The interest shall be paid to them
without the benefit of compounding. "

24. The submission of learned
Counsel for the petitioner that since they
have not received notice under section 12
they are entitled to file application under
section
18
is
also
misconceived.
Compensation having been received in
pursuance of an agreement, there is no
question of making an application under
section 18.

25. In view of the foregoing
discussions, we are of the view that the
application filed by the petitioners for
making a reference dated 16.3.2011 has
rightly been rejected by Additional
District Magistrate (Land Acquisition)
by his order dated 11.5.2011. The
petitioner is not entitled for any relief in
2 All] Balvir Singh V. Vijay Pal and others
873
this writ petition. The writ petition lacks
merit and is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.07.2011

BEFORE
THE HON'BLE B.K. NARAYANA,J.

Civil Misc. Writ Petition No. 37564 of 2011

Balvir Singh

 ...Petitioner
Versus
Vijay Pal and others
 ...Respondents

Counsel for the Petitioner:
Sri Pankaj Agrawal

Counsel for the Respondents:
Sri Anil Singh Jadaun
Dr. G.S.D. Mishra

Code of Civil Procedure-Order XLI Rule 3
A-Appeal-without application to condone
the delay of 16 days with affidavit fieldlearned judge not only entertain the
appeal
but
passed
interim
order
admitting-without consideration of the
provisions of Order XLI Rule 3 A-held-not
sustainable.

Held: Para 8

What follows from the reading of Order
XLI Rule 3A is that when an appeal is
presented
after
the
expiry
of
the
limitation, it shall be accompanied by an
application supported by an affidavit
stating the facts on which the appellant
relies to satisfy the court that there was
sufficient cause for not preferring the
appeal within the said period.