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2000 DIGILAW 174 (JK)

J&K Through Secretary To Govt. v. Sunil Choudhary

2000-08-30

A.K.GOEL, A.M.MIR

body2000
PER A.M. MIR, J 1. By virtue of this Letters Patent Appeal, the judgment passed by a learned Single Bench of this Court on 10.3.1998, in OWP No. 1040/96 has been challenged. In the impugned judgment, the learned Single Bench has allowed the writ petition of the respondents. BRIEF FACTS: 2. Central P. W.D. indented for acquisition of land for construction of a bridge over the Ballol Nallah. The concerned Collector, Assistant Commissioner ® Jammu got the revenue papers of the land proposed to be acquired, prepared and attested by both Tehsildar and Tehsildar Settlement Jammu Notifications under sections 4, 6, 7, 9 & 9-A of the J&K Land Acquisition Act, (hereinafter called the Act), were duly issued. The Committee appointed for fixation of rate recommended compensation @ 1.50 lac per kanal. An Award (described as Draft Award) was passed on 20.6.1994, whereunder the compensation was fixed at the rate of one lac per kanal. Reference of this Award in terms of section 11(2) of the Act, for approval of the rates proposed, was made to the relevant authority. 3. Possession of the land, however, was taken-over in 1989 itself, much before passing of the award. The construction of bridge was started in 1990 and completed in 1993. Respondents-writ petitioners in para 7 of the Award have been shown to be the owners of the land, measuring 20-kanal and 14-marlas (under survey No. 232-Min.) situated in village Jallo Chak, Tehsil Jammu. An amount of Rs. 34, 27,000/- as 80% of the Award was deposited by the authorities of C.P.W.D. vide Cheque dated 21.10.1995 under Executive Engineer, Madhupur Canal Division, C.P.W.D. Madhupurs letter No. MCD/55 (Misc)/95 dated 14.11.1995. 4. The writ petitioners, despite efforts, did not receive the payment. Thus they filed the writ petition on 17.12.96. The relief sought in the writ petition was one in the form of mandamus directing the appellants to release the compensation. The Writ Court allowed the writ. Hence this appeal. 5. It will be pertinent to place on record that the appeal was barred by limitation. A coordinate Bench of this Court vide order dated 11.12.1998 has condoned the delay, 6. The grounds taken in the appeal are as under:- i. That for release of the compensation, issuance of a certificate under LB-10 of 1990 is a precondition. The concerned authority has refused to issue such certificate. A coordinate Bench of this Court vide order dated 11.12.1998 has condoned the delay, 6. The grounds taken in the appeal are as under:- i. That for release of the compensation, issuance of a certificate under LB-10 of 1990 is a precondition. The concerned authority has refused to issue such certificate. Thus the learned Single Bench has missed this precondition and erroneously passed the writ. ii. That while passing the impugned judgment the High Court Rules have been by-passed as no opportunity of filing counter was granted before passing the impugned judgment. iii. That the learned Single Bench has failed to appreciate the provisions of the Act. We have heard the learned counsel for the parties at length and have also gone through the whole record. 7. Now we deal with the above points raised in the appeal in seriatim in the following manner:- i. The plea that the compensation to the interested persons could be withheld for want of a certificate was duly registered by the learned Single Bench. The same did not find favour with him. This is so because this plea is not based upon any solid ground. There is absolutely no express provision which could have lent support to appellants case before the Writ Court for withholding the payment on this ground. Mr. Kapoor appearing for the State-appellant did not produce any law under which the Collector was bound to wait for a clearance certificate. A vague and general objection with respect to the so-called inability of the Collector to release the compensation for want of a certificate from the Assistant Settlement Officer (Collector Agrarian Reforms, Jammu) was raised. Learned Single Bench rejected this plea because no copy of the circular referred to in this behalf was ever placed before the Writ Court, Mr. Kapoor, despite having been asked to do so, did not produce any circular. Infact in the present case the very exercise of acquisition started from getting the proposal cleared from the revenue and settlement agencies. Para 1 of the Award reads as under: - "The Executive Engineer CPWD placed a formal letter of indent for the acquisition of the land for the construction of Bridge over the Balol Nallah, The revenue papers were got prepared by the Tehsildar Jammu an Tehsildar Settlement Jammu duly attested by them. The revenue papers got authenticated by the Entering Department Executive Engineer CPWD (Madhupur Punjab). The revenue papers got authenticated by the Entering Department Executive Engineer CPWD (Madhupur Punjab). The Collector Irrigation and Flood Control Jammu was directed vide this office letter No. 43/IA dated 9.5.1989 to process and dispose of the case under State Land Acquisition Act." 8. We have examined the reply of the State before the Writ Court. No plea has been made with regard to the respondents not being persons interested. On the other hand, as against the categoric claim of ownership and possession made in para 2 of the writ petition, the respondent-State has been silent. For clarification we reproduce para 2 of the pleadings in verbatim as under:- WRIT PETITION: 2. That the petitioner are the owners of land measuring 20 kanals 14 marlas underlying Kh. No. 232 min. at vill. Jallo Chak, tehsil Jammu. This land was acquired by the respondents for building a bridge at Balol Nallah. The land was acquired under section 9 & 9A of the Land Acquisition Act read with section 17 of the Land Acquisition Act. The possession of the said land was immediately taken over by the respondents without payment of any compensation. The land was acquired as far back as in the year 1989. The respondents started construction of the bridge on the said land in the year 1990 and completed in the year 1993 itself. The bridge is functioning for last three years. The respondents, however, have not so far paid any compensation of the land aforesaid to the petitioners." REPLY: 2. In reply to para 2 it is submitted that process of acquisition is in progress including the referred land falling under Khasra No. 232 min. at village Chak Jaloo, Tehsil Jammu for High Level Bridge at Balol Nallah. The possession of the land under acquisition has been taken over by the Indenting Department i.e. the XEN CPWD (Madhopur) respondent No. 3 Jammu from the land owners/interested persons with their mutual consent. The process of release of payment is also in progress. The Collector Agr. Ref. Asstt. Settlement Officer Jammu has also been approached to record the certificates in the light of Govt. Circular No. Rev (LB) 10 of 1980 dated 23.2.1980, a legal pre-requisite for release of compensation." 9. The process of release of payment is also in progress. The Collector Agr. Ref. Asstt. Settlement Officer Jammu has also been approached to record the certificates in the light of Govt. Circular No. Rev (LB) 10 of 1980 dated 23.2.1980, a legal pre-requisite for release of compensation." 9. What transpires from reading of the above reproduced para of the pleadings is that it has been admitted that the possession had been taken over and the compensation case was in progress. No objection with respect to the claim of the respondents-writ petitioners, or that of any other person being an interested person was raised. The golden rule of pleadings recognised by law and one laid down under Order 8 Rule 5, Code of Civil Procedure, is that denials are not only to be pleaded, but they are required to be specific. In absence of any specific denial with respect to a question of fact, the pleadings of the petitioner will be deemed to have been admitted. Mr. Kapoor, appearing for the appellants, however argued that the concerned authority refused to issue the certificate. We are not inclined to accept this plea at this stage. Had it been a fact, then this plea would have been taken before the Writ Court during the pendency of the petition. This plea does not even find a mention in the memo of appeal which was filed on 10.11.1999. No reasoning has been afforded for such refusal Above all, a fresh plea which was never taken before the learned Single Bench, cannot be allowed to be taken now. The law on this point is replete. This principle of law has been laid down in the following judgments:- 1. Karpagatachit and others vs. Nagara Thinaphachia reported in AIR1965SC 1752. 2. M.P. Srivastava vs. Mrs. Veena reported in AIR 1967 SC 1193. 3. Panchugopal Barua and others vs. Umesh Chandra Goswami and others, reported in AIR 1997 SC 1041. 4. State of UP. vs. Swarup Saroj, reported in (2000) 3 SCC page 699. 10. Thus the plea of the certificate having been rejected by the Collector is not available at the appellate stage. 11. The peculiar circumstances of this case are as under:- i. That the Indenting Department had already deposited 80% of the award amount with the Collector under letter No. MCD/55 (Misc)/95 dated 14.11.1995 vide cheque dated 21.10.1995. ii. 10. Thus the plea of the certificate having been rejected by the Collector is not available at the appellate stage. 11. The peculiar circumstances of this case are as under:- i. That the Indenting Department had already deposited 80% of the award amount with the Collector under letter No. MCD/55 (Misc)/95 dated 14.11.1995 vide cheque dated 21.10.1995. ii. That apart from the claim of the respondents no body has ever approached the Collector, the learned Single Bench, or this Appellate Bench, with a claim that he is the person interested and respondents are not. iii. That the plea of any other person being interested in the land acquired has never been taken by the appellants. iv. That the appellate Bench wanted to know as to who otherwise was the title holder of the land. Mr. Kapoor did not satisfy that Bench with respect to that question. This is why vide order dated 4.6.1999, a Coordinate Bench directed the appellants to deposit the compensation of the land in question under the petition (20-kanal, 14-marlas) in this Court. v. The award was passed on 20.6.1994 The rate of compensation recommended by the Committee was Rs. 1.50 lac per kanal. The Collector recommended tentative compensation of Rs. 1.00 lac per kanal. A reference to the competent authority, as required in terms of section 11(2) of the Act, for approval of the rate was made. However, till date no such approval has been granted. 12. The Act is a special statute, which should over ride every other general law, including executive instructions, relating to the matters covered by the Act, if any at all in existence, contrary to or inconsistent with it. It evolves a complete machinery in itself. If at all stages takes care that the persons interested come forward and take objections as they like. Notices issued and the proceedings taken in terms of sections 4, 9 & 9-A of the Act require to be particularly mentioned in this behalf. 13. The other legal features arising in this case are:- i. That the Act does not acknowledge any authority or reason, beyond its purview for withholding of the compensation. ii. The Act does not make room for any Draft Award. The only Award which can be passed by the Collector is one in terms of section 11. iii. 13. The other legal features arising in this case are:- i. That the Act does not acknowledge any authority or reason, beyond its purview for withholding of the compensation. ii. The Act does not make room for any Draft Award. The only Award which can be passed by the Collector is one in terms of section 11. iii. The Act does not make it necessary for the persons interested to obtain and produce any certificate from any authority. iv. The Act does not provide for any time span within which approval to the rate of compensation is to be granted. Under common law concept it should be reasonable time. Sleeping over the issue for more than six years, that also without any explanation, is highly deplorable. 14. A reference is required to be made to a case titled Ramachandra vs. Govind, reported in AIR 1975 SC 915. Their Lordships of the Supreme Court in this case laid stress and followed a principle of. law which was laid down 128 years back in Taylor vs. Taylor (1875) I Ch D 426 and held as under:- "Where a power is given to do a certain thing in a certain way, that thing must be done in that way or not at all and that other method of performance are necessarily forbidden." 15. In view of the facts as spelt out in para 6 and position of law discussed in para 7 above, the Writ Court was justified in rejecting the objection made before it in para 3(c) of the counter. 16. The argument that the Writ Court passed the judgment in derogation of the High Court Rules is equally fallacious. The petition was duly admitted and disposed of with the consent of learned counsel for the parties. We do not understand as to how was the disposal of the writ petition contravening High Court Rules. State has filed elaborate reply, duly supported by an affidavit, sworn in by none other than Collector A.C. (R) Jammu. There is no bar to dispose of a case, especially when learned counsel for the parties jointly agreed that the matter be disposed of. The appellants are estopped from raising such a plea in view of the consent given before the learned Single Bench. Therefore, ground No. (ii) also fails. 17. There is no bar to dispose of a case, especially when learned counsel for the parties jointly agreed that the matter be disposed of. The appellants are estopped from raising such a plea in view of the consent given before the learned Single Bench. Therefore, ground No. (ii) also fails. 17. The argument that the learned Single Bench has failed to appreciate the provisions of law needs our attention. The learned Single Bench has treated the present case to be one governed by section 17 of the Act and has ordered payment of 80% of the award money in terms of section 17. Reliance has been placed upon a case titled Satendra Parasad Jain and others vs. State of U.P. and others reported in AIR 1993 SC 2517. It will be useful to reproduce the penultimate para of the judgment here. It reads as under:- "Further, section 17(3-4) postulates that the owner will be offered an amount equivalent to 80% of the estimated compensation for the land before the Government takes possession of it under section 17(1). Section 11-A cannot be so construed as to leave the Government holding to the land without the obligation to determine compensation, make an award and pay to the owner the difference between the amount of the award and the amount of 80 per cent, of the estimated compensation. In the instant case, even that 80 percent of the estimated compensation was not paid to the appellants although section 17(3-A) required that it should have been paid before the possession of the said land was taken but that does not mean that the possession was taken illegally or that the said land did not thereupon vest in the 1st respondent. It is, at any rate, not open to the third respondent, who, as the letter of the Special Land Acquisition Officer dated 27th June, 1990 shows failed to make the necessary monies available and who has been in occupation of the said land ever since its possession was taken, to urge that the possession was taken illegally and that, therefore, the said land has not vested in the first respondent and the first respondent is under no obligation to make an award." 18. Section 17 provides for real emergency situations, its object is to dispense with the otherwise time consuming procedure laid down in section 5-A. Application of section 17 supra is dependent upon some conditions precedent laid down. Two of these conditions are as under:- i. That possession should have been taken over on the expiration of 15 days from the date of notice issued in terms of section 9(1). ii. That the Government in case of application of section 17, has to make a formal declaration in terms of section 6 and also formally lays down that section 6-A will not apply. 19. Here in the present case the possession of the land was admittedly taken-over in the year 1989, much earlier to starting of the acquisition proceedings in 1994. Government did not also pass any order in terms of third proviso to section 17. Thus section 17 could have no application. Section 17-A is applicable, only when possession is taken over under section 17 supra. In our opinion neither of these sections would be attracted in this case. The payment to the persons interested was required to be made in the course of law* laid down by the Act. The facts of Satendra Prasad Jains case were different, so that judgment has no application. The judgment of the learned Single Bench is not tenable so far application of sections 17 and 17-A is concerned. 20. After having dealt with all the grounds above, we find that on the one hand, the respondents having unnecessarily slept over the matter of releasing compensation without any rhyme and reason and on the other, the learned Single Bench was not correct in holding that payments should be released in terms of section 17-A. We, therefore, modify the judgment impugned in the following manner: - A) The Land Acquisition Collector concerned will pronounce the final award within three) months from today. This will be done even if he receives no approval with respect to rate of compensation. B) The Land Acquisition Collector will, after pronouncement of the award, disburse the award amount relating to the land measuring 20-kanal, 14-marlas in favour of the persons interested, without losing further time. C) The amount deposited m this Court, alongwith interest, may be released in favour of the Collector concerned who has to make the payment in terms of directions (A&B) above. C) The amount deposited m this Court, alongwith interest, may be released in favour of the Collector concerned who has to make the payment in terms of directions (A&B) above. D) The respondents, if so advised, shall be at liberty to file an application for reference in terms of section 18 of the Act, after the final award is passed. 21. This L.P.A. is disposed of with the above modifications. No order as to costs.