JUDGMENT
J.S. Narang, J.
1. The State of Punjab issued a notification dated 9.11.1979, Under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as “the Act”). The total area of the land defined in the aforesaid notification measured is 53 acres, 2 Kanals and 15 Marias. The land of the petitioners also falls within the ambit of the aforesaid area. A declaratory notification Under Section 6 of the Act, was issued on 8.3.1980. Notices Under Section 9 of the Act had been issued pursuant to which the petitioners were required to file their clarifications. In compliance thereof, the claims had been duly submitted in regard to the land measuring 13 acres (113 Kanals 12 Marias) belonging to the petitioners. The award dated June 16, 1987, was announced by the Land Acquisition Collector, copy Annexure P3. It has been averred in the award that the possession of the land had been taken on the date of the award dated June 16, 1982. The petitioners have contested this averment and have stated that the physical possession had not been taken as the same continues to be with the petitioners. It has also been averred that the award was never pronounced in the presence of the petitioners. It has also been averred that the award was not made on June 16, 1982, in fact was prepared on 9.2.1983, the endorsement forwarding the same to the District Collector, Ludhiana is shown to have been made on the aforestated date. It has been fairly admitted that the reference has been sought by the petitioners Under Section 18 of the Act but they have not received any compensation so far.
2. Notice had been issued by the Tehsildar exercising the powers of Collector Grade- 11, Ludhiana, for recovery of arrears of Rs. 25,900/-. However, individual recoveries had also been indicated to the petitioners and that on such sample notice has been appended as Annexure P4.This notice has been made the subject matter of challenge in the present petition and also the notification Under Section 4 and 6 of the Act, copy annexures P1 and P2.
3. Notice of motion was issued vide order dated May 4, 1984 and the recovery had been stayed till further orders. However, subsequently learned Single Judge modified the order vide order dated December 3, 1993, by passing the following order:
In this petition, the petitioners have prayed for the quashing of the notifications dated November 8, 1979 and February 8, 1980 issued Under Section 4 and 6 respectively of the Land Acquisition Act, 1894. The validity of these notifications has been challenged only on the ground that no compensation has been awarded in respect of the structures standing thereon.
In the written statement, there is no averment to the effect that there is any structure on the land. Faced with this situation, Mr. Doabia prays for a short adjournment to enable him to amend the writ petition. The request is opposed Mrs. Charu Tuli, learned Counsel appearing for the respondents.
Mrs. Tuli states that the petitioners have continued to be in possession of the land by virtue of the interim order passed by this Court in spite of the fact that the award was delivered as assessed by the Collector was duly deposited by the respondents. She further points out that references Under Section 18 were made in the year 1982 itself and even the appeals were decided by this Court in the year 1988. She prays that in case the petitioners want to amend the petition the interim order passed by this Court on December 5, 1984, regarding the maintenance of status quo as regards possession be vacated.
After hearing learned Counsel for the parties, the interim order passed on December 5, 1984, is modified to the extent that the respondents shall be entitled to take possession of the land on which there was no structure at the time of the acquisition of the land. However, if on any land belonging to the petitioners, there was any structure at the time of the acquisition, the respondents shall not take possession thereof.
The writ petition is adjourned to enable the learned Counsel for the petitioners to file an application for amendment of the writ petition.
4. Subsequently C.M. No. 7546 of 1994, was filed for seeking vacation of the order which was dismissed by the learned Single Judge vide order dated 15.9.1984, which reads as under:
Civil Writ Petition No. 2110 of 1984 had come up for hearing earlier on December 3, 1993 before a learned Single Judge and while adjourning the case to enable the writ petitioner to move an application for amendment of the writ petition, the following order was passed:
After hearing learned Counsel for the parties, the interim order passed on December 5, 1984, is modified to the extent that the respondents shall be entitled to take possession of the land on which there was no structure at the time of the acquisition of the land. However, if on any land belonging to the petitioners, there was any structure at the time of the acquisition, the respondents shall not take possession thereof.
Since the interim order dated’ 5.12.1984 already stands modified after hearing the learned Counsel for the parties, I do not consider that any further modification in the order dated December 5, 1984 is called. Consequently, this application is dismissed.
5. Thereafter, another C.M. No. 10883 of 1995, had been filed vide which status quo regarding possession was ordered to be maintained vide order dated December 7, 1995, By order dated December 19, 1995, the same was ordered to be heard with the main writ petition. It may be noticed that the learned State Counsel had categorically pointed out that the case is covered by a judgment of this Court rendered in C.W.P. No. 1901 of 1984 which was decided on December 2, 1993 but no order pursuant thereto had been passed.
6. The State has contested the petition and has taken a preliminary objection that the petitioners have already sought reference Under Section 18 of the Act, for enhancement of the compensation which already stands decided against the award made by the reference Court, R.F.A. No. 1629 of 1984, for further enhancement was filed by the petitioners. Thus, the petitioners are estopped from filing the acquisition proceedings and also are required to deliver the possession which is being retained by them under the orders of this Court. However, the stand taken by the Government is that the physical possession of the land in dispute was taken at the spot by the Land Acquisition Collector in the presence of one Purshotam Lal Lambardar and Inder Singh Sethi as a declaration to this effect was made through the said persons and its report was entered at Serial No. 603 of the Roznamcha Vakiati of revenue Patwari Karahparah, District Ludhiana, copy of which has been appended as Annexure R1. It has also been averred that after the possession had been taken by the Government the petitioners unauthorisedly trespassed into the government land and cultivated the same and removed the crops of Rabi 1983. The value of the crop has been assessed as Rs. 2000/- per acre. The petitioners had been required to show cause and to appear before the Collector, pursuant to Section 34 of Govt. Acquisition Punjab Land Revenue Act, 1912 and that the Collector ordered the recovery of the assessed value of the unauthorisedly and illegal crops of the Government land and notice copy annexure P4, had been issued to recover the amount as arrears of land revenue if the same are not paid before the date.
7. I have heard learned Counsel for the parties and have also perused the paper book as also the documents appended in support of their pleadings.
8. Learned Counsel for the petitioners had contended that the award is not sustainable as the same was never ever announced on June 16, 1982 and the same is shown to have been endorsed to the Collector Ludhiana on 8.2.1983. Since no award was made on the aforesaid date the question of taking possession of the land as indicated in the award did not arise. Resultantly, claiming any amount for the illegal use and occupation of the land did not arise. Thus, the notice of recovery deserves to be quashed on this ground alone.
9. On the other hand, learned Counsel for the State has argued that the possession was taken by the State as is evident from the entries made in the Roznamcha Vakiati annexure R1, which has not been contested by the petitioners by way of filing any rejoinder to the averment contained in the written statement. It is the case of the government that the petitioners had illegally came into possession of the land in question and had sown Rabi crop in the year 1983 and had also reaped the same in violation of Section 34 of the Act. ‘Thus, the government is well within its rights to recover the amount for the illegal use and occupation of the land. It is further contended that the notification Under Sections 4 and 6 of the Act, cannot be allowed to be challenged by way the present petition as the award dated June 16, 1982, made by the Land Acquisition Collector, had already been questioned by way of seeking reference Under Section 18 of the Act for further enhancement of the compensation. Once the reference has been sought the illegality of the notification cannot be allowed to be challenged. Seeking enhancement would always mean that the notification Under Sections 4 and 6 of the Act, stands accepted by the claimants. Not only this, further enhancement was also sought by way of filing R.F.A. No. 1629 of 1985. Thus, the claim of challenging the notification Under Sections 4 and 6 of the Act deserves to be rejected straightway.
10. After considering the aforestated contentions, I am of the view that the petition deserves to be dismissed. Admittedly, the petitioners sought reference Under Section 18 of the Act and that the award made by the Reference Court had been challenged further by way of R.F.A., as noticed above (I requested for the paper book of the aforestated appeal but the Registry has reported that after the decision of the appeal the same had been consigned to the Record Room and that a fire had broken in the year 1999 and some record got burnt and this appeal seems to be one of those in the burnt record). Dehors the fact noticed above, the factual status remains that the petitioners had asked for further enhancement of compensation awarded to the petitioners. It is also not factually ascertainable nor anything has been disclosed by the learned Counsel for the petitioner that the awarded amount has been received by the petitioners or not and if received was received under protest. This would be irrelevant as the main challenge in the present petition is the recovery of the amount for the illegal use and occupation of the land in question. Learned Counsel for the petitioner has not been able to contest the challenge of the Government that the possession of the land in question had been taken on June 16, 1982 which fact stands corroborated from the entry made in the Roznamcha Vakiati and which has been testified by the Lambardar as also the person who had made the publication accordingly. Since replication has been filed for controverting this fact taken in the written statement, the same deserves to be admitted. Resultantly, the petition deserves to be dismissed and the State is entitled to make recovery accordingly. Though the possession of the land in question was retained by the petitioners under the orders of this Court but for the use and occupation of the land die government would be entitled to claim the amount from the petitioners in accordance with law at the rate which was assessed and the amount has been claimed pursuant to notice copy annexure P4. This fact that the compensation has been assessed by charging the rate at the rate of Rs. 2000/- per. acre has also not been contested. Therefore, respondent No. 2 is entitled to claim in accordance with law.