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2001 DIGILAW 295 (JK)

Krishan Dass v. Union Of India

2001-11-26

T.S.DOABIA

body2001
1. Proceedings for acquisition of land were initiated under Jammu and Kashmir Requisitioning and Acquisition of Immovable Property. Total area which was subject matter of acquisition was 1007 Kanals and 06 marlas. Competent Authority i.e. Deputy Commissioner Udhampur assessed compensation. Different rates were fixed for different classes of land. Classification of land and compensation allowed was as under:- "(i) Hali Rs. 15,000/- Per Kanals (ii) Warhai Changi Rs. 12,000/- -do- (iii) Warhai Mandi Rs. 10,000/- -do- (iv) Banger Kadim Rs. 9,000/- -do- (v) Garmumkin Rs. 7,000/- -do- (vi) State land Rs. 4,500/- -do- 2. Further fact is that some of the land owners were not satisfied with the compensation allowed. They sought enhancement through arbitration proceedings. Arbitrator allowed compensation at the rate of 70,000/- per Kanal. This was challenged in this court. What was allowed by the Arbitrator was upheld by this court. Judgment dated 21.5.1996 be perused. Letters Patent Appeal was preferred. That was dismissed on 8 8.1996. The decision given by this court was challenged in the Supreme Court of India. Amount of compensation which was fixed by the Supreme Court of India is Rs.30,000/- per kanal. This decision was given by the Supreme Court of India on 8.5.1997. Decision which was given by the Supreme Court of India is reported as Union of India and others Versus Chain Singh and others AIR 1997 SC 3000. Present petitioners whose land was acquired and who had not sought enhancement of the compensation now seek enhancement of the compensation. It is submitted that they should also be allowed compensation at the rate of Rs.30,000/- per kanal. In para 8 of the petition it is submitted that petitioners received payment of compensation under protest. It is submitted that they are entitled to compensation at the rate of Rs.30,000/- per kanal. Fact pleaded is that acquisition was under same notification. It is, therefore, urged that there is no justification to deny the compensation at the rate of Rs.30,000/- per kanal. 3. Respondents have controverted the allegations. Basic stand taken by them is that the petitioners had received compensation without protest. They never made any request for enhancement of the compensation. It is accordingly submitted that they cannot seek direction to the effect that arbitrator should be appointed and compensation should be paid at the enhanced rate. 4. 3. Respondents have controverted the allegations. Basic stand taken by them is that the petitioners had received compensation without protest. They never made any request for enhancement of the compensation. It is accordingly submitted that they cannot seek direction to the effect that arbitrator should be appointed and compensation should be paid at the enhanced rate. 4. Question which is required to be gone into is as to whether land owners who had not sought enhancement of the compensation are entitled to benefit of enhanced compensation where such enhancement is made on the basis of prayer made by other land owners and when enhancement is vis-a-vis land covered by the same acquisition proceedings. In this regard, it would be apt to mention that under land acquisition act, 1894 central act a provision has been made whereby claimants can seek re-determination of compensation even if they have not sought enhancement before the reference court. Section 28-A of the Central Act i.e. Land Acquisition Act 1894 is reproduced below :- 28-a. Re-determination of the amount of compensation on the basis of the award of the court (1) where in an award under this, part, the court allows to be applicant any amount of compensation in excess of the amount awarded by the Collector under section 11 the persons interested in all the other land covered by the same notification under section4, sub-section (1) and who are also aggrieved by the award of the collector may notwithstanding that they had not made an application to the collector under section 18, by written application to the collector within three months from the date of the award of the court require that the amount of compensation payable to them may be re-determined on the basis of the amount of compensation awarded by the court: Provided that in computing the period of three months within which an application to the collector shall be made under this sub-section, the day on which the award was pronounced and the time requisite for obtaining a copy of the award shall be excluded. (2) The collector shall on receipt of an application under sub-section (1) conduct an inquiry after giving notice to all the persons interested and giving them a reasonable opportunity of being heard and make an award determining the amount of compensation payable to the applicants. (2) The collector shall on receipt of an application under sub-section (1) conduct an inquiry after giving notice to all the persons interested and giving them a reasonable opportunity of being heard and make an award determining the amount of compensation payable to the applicants. (3) Any person who has not accepted the award under sub-section (2) may by written application to the collector" require that the matter be referred by the collector for the determination of the court and the provisions of sections 18 to 28 shall so far as may be apply to such reference as they apply to a reference under section 18�. 5. This provision was interpreted by the Supreme Court of India in case reported as Smt. Bhagti Versus State of Haryana, AIR 1997 SC 1793. It was observed that right and remedy for re-determination in terms of section 28-A would be available only when the reference court under section 18 has enhanced the compensation. In such cases, in terms of section 28-A, application for enhancement can be made within a period of three months. It was observed that this provision would not be applicable when judgment is given by the High Court and claimants seek re-determination. The view expressed in Bhagti Versus State of Haryana AIR 1997 SC 1791 was also expressed in other case also i.e. Tola Ram Versus State of U.P. (1997)6 SCC 280. In the above case it was also observed that limitation would be taken from the date of award decision given by reference court and not from the date of knowledge of award. In this regard it be seen that there is no similar provisions so far as J&K Requisitioning and Acquisition of Immovable Property Act is concerned. If this be the State of affairs then principles as indicated under section 28-A of the Central Land Acquisition Act would not be attracted. Such a view has been expressed by the Supreme Court of India in case reported as 1996(1) SCC 477 (Union of India and Another Versus Babu Singh and others). What is said in para 6 of the judgment is being reproduced below:- Shri Goswami, learned Senior Counsel appearing for the Union of India contended that section 28-A has no application to the acquisition of the land under the requisitioning and acquisition of immovable property act, 1952. What is said in para 6 of the judgment is being reproduced below:- Shri Goswami, learned Senior Counsel appearing for the Union of India contended that section 28-A has no application to the acquisition of the land under the requisitioning and acquisition of immovable property act, 1952. We find force in the contention, Shri Ujjagar Singh, learned Senior Counsel for the respondents, contended that since the counsel appearing for the Union of India has conceded before the High Court, the State is bound by the concession and that, therefore, there is nothing wrong in the order passed by the High Court. It is difficult to accept the contention. It is a case of total lack of jurisdiction since section 28-A of the land acquisition act has no application when the land is acquired under the requisitioning and acquisition of the immovable property act. Therefore, wrong concession made by the counsel does not bind the union of India in that behalf.� From the decisions quoted above it becomes apparent that there is no specific provision of the nature as contained in section 28-A of the land acquisition act enacted by the parliament. Therefore, it is not possible to enhance the compensation in this case in the exercise of rat jurisdiction. Question as to whether the petitioners have submitted an application for appointment of an arbitrator and whether they accepted the compensation under protest is a disputed question of fact. This cannot be gone into in this petition. However, a limited direction is given to the respondent-State to refer the application if preferred by the petitioners seeking enhancement of the compensation to the arbitrator and these applications if preferred would be adjudicated upon in accordance with law. Disposed of as such.