MAHENDRA PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) Mahendra Prasad, the sole petitioner in C. W. J. C. No. 2880 of 2002 filed a partition suit being Partition Suit No. 64 of 1989 in the Court of Subordinate Judge IV, Bihar Sharif (Nalanda) for partition of the family properties. Basudeo Prasad, the sole petitioner in C. W. J. C. No. 2793 of 2002, is one of the defendants in that suit. In the present dispute, they are together against Raghunandan Prasad, defendant No. 1 in the suit and a common respondent in both the writ petitions. The present dispute has arisen, during the pendency of the suit, as a part of the suit lands has been acquired by the Government under the Land Acquisition Act, the public purpose being construction of an Ordinance Factory at Rajgir. In the notices issued in the land acquisition proceeding and in the award prepared for payment of compensation to land holders the area of the acquired land in the hands of Raghunandan Prasad is shown far in excess of what is his share, according to the writ petitioners, in the undivided family property. An attempt was, therefore, made to get the payment of the compensation money stayed till the disposal of the title suit. That attempt being unsuccessful Mahendra Prasad filed a petition for making a reference to the Court for apportionment of the amount of compensation under Section 30 of the Land Acquisition Act. The Collector by order, dated 13-2-2002 passed in Objection Case No. 6/50, Basudeo Prasad L. A. 6/2000 rejected the plea for reference. This writ petition is filed challenging that order.

(2.) In my opinion it was quite misconceived on the part of the writ petitioner to try to have a reference made to the Court under Section "30 of the Act in regard to any dispute over apportionment of the compensation amount. Having regard to the pendency of the partition suit between the parties in which the acquired land was also part of the suit lands, a reference under Section 30 of the Act would amount to duplication of judicial proceedings and would open the possibility of inconsistent orders being passed by the Courts. The untenability of the petitioners claim for reference under Section 30 of the Act would be further evident if one takes note of certain facts that are not in dispute.

(3.) According to the plaint the total area of the land of which partition is prayed for is slightly over 42 acres. It is the case of the plaintiff (Petitioner in C. W. J. C. No. 2880 of 2002) that Raghunandan Prasad is entitled to 22.5 paise (that is to say, 22.5%) share in the suit properties. Thus, according to the plaintiffs own case the share of Raghunandan Prasad in the suit land would be not less than 9.45 acres. Out of the suit lands 13.31 acres have gone into acquisition. In the notices issued under Section 9 of the Act (Annexure 2 series) an area of 1.53 acre is shown in the name of Basudeo Prasad (petitioner in C. W. J. C. No. 2793 of 2002); an area of 3.07 acres in the name of Mahendra Prasad (plaintiff in the partition suit and petitioner in C. W. J. C. No. 2880 of 2002) and the balance area of 8.71 acres is shown in the notice issued in the name of Raghunandan Prasad. According to the two petitioners, Raghunandan Prasad was not entitled to more than 22.5% share in the undivided family lands and hence, his share in the 13.31 acres of acquired land would be 2.99 acres; as against this, he was getting compensation for 8.71 acres, that is, far in excess of his own share and at the expense of the two writ petitioners.