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2005 DIGILAW 124 (JK)

Union Of India v. Ab. Jabar & Anr

2005-05-04

NIRMAL SINGH

body2005
Notification under Section 4 (1) of the J & K Land Acquisition Act hereinafter referred to as the Act, was issued by the Collector vide No. AC/LA/940-44 dated 27-3-1990 for acquiring land measuring 42 kanals 10 marlas i.e. Khasra No. 442-min (37 kanals 9 marlas) and Khasra No. 438 (5 kanals 1 marla), situate in village Badhoori Tehsil and District Rajouri. 2. Objections were invited. No one preferred objections. Another Notification under Sections 6 and 7 of the Act was issued by the Collector vide No. REV (LAJ) 101/90 dated 22-8-1990. objections of the interested persons and the intending parties were called with regard to the compensation and measurement of the land. No objections were received from either of the parties for acquisition of the land. However, the land owners filed their claim for the compensation of the land at the rate of Rs. 40.000/- per kanal. The Collector passed the award under Section 11 of the Land Acquisition Act and assessed the compensation at the rate of Rs. 10.000/- per kanal with regard to Khasra No. 438 whereas he assessed the compensation at the rate of Rs. 7.000/- per kanal regarding the land comprising Khasra No. 442 measuring 37 kanals 9 marlas with Jabarana @ 15%. Feeling aggrieved by the award, the Union of India has filed the present appeal. 3. Mrs. Neeru Goswami, learned counsel appearing for the appellant submitted that the learned District Judge has passed the Judgment at the back of the appellant. No notice was issued to the appellant as required under Section 20 of the Act. She submitted that the appellant being the intending department was necessary and proper party to the proceedings and without hearing it, compensation has been enhanced which is to be paid by the appellant and the appellant has materially prejudiced. No one has put appearance on behalf of the land owners despite service. Mr. A. H. Qazi, AAG appearing for respondent 2 has supported the contention raised by the learned counsel appearing for Union of India. 4. After hearing the learned counsel for the appellant and perusing the record, I am of the considered opinion that the impugned judgment cannot sustain. 5. The procedure which the reference Court has to adopt, has been laid down in Part-III of the Act. The relevant provision of the Act reads as under : "18. 4. After hearing the learned counsel for the appellant and perusing the record, I am of the considered opinion that the impugned judgment cannot sustain. 5. The procedure which the reference Court has to adopt, has been laid down in Part-III of the Act. The relevant provision of the Act reads as under : "18. Reference to Court(I) 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 persona to whom it is payable or the apportionment of the compensation among the persons interested. 2........ 20. Service of notice: The Court shall thereupon cause a notice, specifying the day on which the Court will proceed to determine the objection, and directing their appearance before the Court on that day, to be served on the following persons : a) the applicant; b) all persons interested In the objection, except such (if any) of them as have consented without protest to receive payment of the compensation awarded; and c) if the objection is in regard to the area of the land or to the amount of the compensation, the Collector. 21. Restriction on scope of proceedings : The scope of the enquiry in every such proceedings shall be restricted to a consideration of the interests of the persons affected by the objection." 6. Perusal of Section 200 reproduced above shows that the Court shall have to issue the notice to the interested person specifying the day on which the Court will proceed to determine the objection. The interested person has been defined under Section 3 (b) of the Act, which reads as under:- "3(b) The expression person interested Includes all persons claiming an interest ii compensation to be made on account of the acquisition of land under this Act; and person shall be deemed to be interested ii land if he is interested in an easement affecting the land." 7. The Apex Court in Himalayan Tile and Marble (P) Limited v. Francis Victor Coutinho (dead) by LRs. The Apex Court in Himalayan Tile and Marble (P) Limited v. Francis Victor Coutinho (dead) by LRs. reported as (1980) 3 SCC 223 : AIR 1980 SC 1118, Para 13) while elaborating the person interested under the Land Acquisition Act held as under: "The definition of person interested must be liberally construed so as to include a body, local authority, or a company for whose benefit the land is acquired and who Is bound under an agreement to pay the compensation. Such a person is vitally Interested both in the title to the property as also in the compensation to be paid therefore because both these factors concern its future course of action and if decided against him, seriously prejudice his rights. This view accords with the principles of equity, justice and good conscience." 8. Similarly, the Apex Court In Union of India v. Sher Singh and others reported as (1993) 1 SCC 608 : 1993 AIR SCW 701 (Para 5) further elaborated the definition any person Interested and held as under : "A Division Bench of this Court of two Judges in Himalayan Tiles and Marbles (P) Ltd. v. Francis Victor Coutinho (1980) 3 SCC 223 : AIR 1980 SC 1118 examined the question of person interested under the land acquisition proceedings in detail and categorically held that the appellant Himalayan Tiles and Marbles being a private company for which the land was acquired was undoubtedly a person interested as contemplated by Section 18 (1) of the Act. It was held that the definition of a person interested given in Section 18 is an inclusive definition and must be liberally construed so as to embrace all persons who may be directly or Indirectly interested either in the title to the land or in the quantum of compensation. It was further held that the lands were actually acquired for the purpose of company and once the land vested in the Government after acquisition, it stood transferred to the Company under the agreement entered into between the Company and the Government. Thus, it cannot be said that the Company had no claim or title to the land at all. It was further held that the lands were actually acquired for the purpose of company and once the land vested in the Government after acquisition, it stood transferred to the Company under the agreement entered into between the Company and the Government. Thus, it cannot be said that the Company had no claim or title to the land at all. Secondly, since under the agreement the Company had to pay the compensation, it was most certainly interested in seeing that a proper quantum of compensation was fixed so that the company may no have to pay a very heavy amount of money This Court categorically held that the view taken by the Orissa High Court, AIR 196: Orissa 180 or even by the Calcutta High Court, AIR 1939 Cal 669 that a company local authority or person for whose benefit the land is acquired is not an interests person is not correct. In the above case, the Court further held that the preponderance of judicial opinion seems to favour the view that the definition of person interested must be liberally construed so as to include a body, local authority, or a company for whose benefit the land is acquired and who is bound under an agreement to pay the compensation. This view accords with the principles of equity, justice and good conscience. It may be further important to note that this Court in the above case approved the case of Punjab and Haryana High Court in Hindustan Sanitaryware and Industries Ltd. v. State of Haryana, AIR 1972 P&H 59." 9. In the instant case, the land has been acquired on behalf of Union of India for construction of married accommodation by GREF, therefore, the Union of India is interested person. A perusal of record shows that the learned District Judge has not issued notice to Union of India. So without impleading the Union of India as a party, the reference cannot be decided. But the learned District Judge has decided the reference at the back of Union of India. The same cannot be sustained for reasons mentioned above. 10. In view of the above, the appeal is accepted. Judgment dated 25-2-2000 is set aside and the case is remanded back to the trial Court for deciding the reference afresh after giving notice to all the intending parties. The same cannot be sustained for reasons mentioned above. 10. In view of the above, the appeal is accepted. Judgment dated 25-2-2000 is set aside and the case is remanded back to the trial Court for deciding the reference afresh after giving notice to all the intending parties. The reference is of the year 1995, therefore, the learned District Judge is directed to dispose of the reference within six months on receipt of the file. Parties are directed to appear before the learned District Judge, Rajouri on 24-5-2005. No order as to costs. Records be sent down forthwith.