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2006 DIGILAW 2506 (RAJ)

State of Rajasthan v. Dalu Ram

2006-08-21

ASHOK PARIHAR

body2006
Judgment Ashok Parihar, J.-Land measuring 37 bigha 16 biswa was sought to be acquired for construction of college building at Alwar vide Notification dated 12.1978 under Section 4 of the Land Acquisition Act, 1894 (hereinafter to be referred to as the Act). The possession of the land sought to be acquired had also been taken on 09.04.1979. Before a final award could be passed by the Land Acquisition Officer, a writ petition was preferred by the contesting respondents before this Court challenging the acquisition proceedings in regard to their land measuring 8 bigha 13 biswa in khasra Nos. 840, 841, 844, 845 and 848. Initially, an interim order was passed by this Court on 11.09.1979 in SB Civil Writ Petition No. 776/1979, however, the interim order was subsequently vacated by this Court on 13.08.1981. In the meanwhile, the Land Acquisition Officer had already passed an award on 110.1979 so far as remaining land so acquired. In view of the interim order passed by this Court, the Land Acquisition Officer kept the proceedings in abeyance so far as land in question as mentioned in the award dated 110.1979 itself . Subsequently, a second stay application was also filed by the contesting respondents with the prayer that they may not be dispossessed from the land in question. However, the second stay application was dismissed by this Court on 111.1986 on the ground that possession had already been taken long back as referred to above and the writ petition also came to be dismissed ultimately vide order dated 20.02.1990. After interim order been vacated by this Court, the compensation in regard to land possessed by the contesting respondents was also determined by the Land Acquisition Officer vide order dated 28.08.1986. After passing of the above order dated 28.08.1986 contesting respondents also filed an application under Section 18 of the Act for reference before the District Collector. 2. The matter would not have come to an end here. After filing of the application under Section 18 of the Act for reference the contesting respondents also submitted an application before the Land Acquisition Officer on 23.03.1987 for awarding additional compensation including enhanced solatium as per the amended provisions of the Act. The Land Acquisition Officer passed an order dated 07.08.1991 awarding additional compensation as prayed by the contesting respondents. After filing of the application under Section 18 of the Act for reference the contesting respondents also submitted an application before the Land Acquisition Officer on 23.03.1987 for awarding additional compensation including enhanced solatium as per the amended provisions of the Act. The Land Acquisition Officer passed an order dated 07.08.1991 awarding additional compensation as prayed by the contesting respondents. Again, an application was filed by the contesting respondents before the Land Acquisition Officer on 010.1997 which was also allowed by the Land Acquisition Officer on 02.08.1999 further enhancing the amount of compensation originally awarded to the contesting respondents. Hence the present writ petition challenging the orders dated 07.08.1991 as also 02.08.1999 passed by the Land Acquisition Officer. 3. Mr. G.S. Gill, learned Additional Advocate General, appearing for the petitioners, has submitted that once an award been passed, the Land Acquisition Officer could not have modified the same subsequently, more so, when an application for reference under Section 18 of the Act had already been preferred by the contesting respondents. He has further submitted that compensation could be awarded only as per provisions of Section 23 of the Act. 4. Mr. R.K. Mathur, learned Counsel appearing on behalf of the contesting respondents, on the other hand, submitted that since the award in the present case had been passed on 28.08.1986 the compensation can only be awarded as per the amended provisions of the Act and the Land Acquisition Officer could always rectify the award originally passed. 5. After having considered submissions of the learned Counsel for the parties, I have carefully gone through the material on record, the orders passed by the authorities below, provisions for the Act and the Judgment s cited at the Bar. 6. There cannot be any dispute that Notification under Section 4 of the Act was issued on 12.1978 and the possession had also been taken on 09.04.1979. Total land, sought to be acquired, was measuring 37 bigha 16 biswa. The dispute had been raised only in regard to the land measuring 8 bigha 13 biswa. It was only because of the interim order passed by this Court on 11.09.1979 that the compensation in regard to the land in question could not be determined by the Land Acquisition Officer while passing the award dated 110.1979 in regard to land so acquired. It was only because of the interim order passed by this Court on 11.09.1979 that the compensation in regard to the land in question could not be determined by the Land Acquisition Officer while passing the award dated 110.1979 in regard to land so acquired. The award dated 110.1979 clearly makes a mention in regard to interim order passed by this Court. The compensation had been awarded to the land owners of the remaining land as per the norms vide award dated 110.1979. As such, there could not have been any distinction between contesting respondents and other persons whose land had been acquired at the same time by a common acquisition proceedings. A bare reading of the Scheme of the Act would show that after passing of the award the Land Acquistion Officer becomes functus officio. It is only a competent Court which can enhance the amount of compensation in a proper reference made under Section 18 of the Act. The Land Acquisition Officer could only make correction of any clerical or arithmetical mistakes in the award, however, could not have modified the same even on an application by the affected persons. 7. Section 23 of the Act relates to the matters to be considered in determining compensation, the same is reproduced hereasunder:-"23. Matters to be considered in determining compensation. The Land Acquisition Officer could only make correction of any clerical or arithmetical mistakes in the award, however, could not have modified the same even on an application by the affected persons. 7. Section 23 of the Act relates to the matters to be considered in determining compensation, the same is reproduced hereasunder:-"23. Matters to be considered in determining compensation. - (1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration first, the market value of the land at the date of the publication of the (notification under Section 4, Sub-section (1)); secondly, the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collectors taking possession thereof ; thirdly, the damage (if any) sustained by the persons interested, at the time of the Collectors taking possession of the land, by reason of severing such land from his other land; fourthly, the damage (if any), sustained by the person interested, at the time of the Collectors taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings; fifthly, if , in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under Section 6 and the time of the Collectors taking possession of the land. [(1A) In addition to the market value of the land, as above provided, the Court shall in every case award an amount calculated at the rate of twelve per centum per annum on such market-value for the period commencing on and from the date of the publication of the notification under Section 4, Sub-section (1), in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier. Explanation.-In computing the period referred to in this sub-section, any period or periods, during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any Court shall be excluded.] 2. In addition to the market-value of the land, as above provided, the Court shall in every case award a sum of (thirty per centum) on such market-value, in consideration of the compulsory nature of the acquisition." 8. Sub-section (1) clearly postulated that the market value of the land has to be determined as per the market value of the land on the date of publication of the notification under Section 4 of the Act. The additional compensation or solatium in consideration of the compulsory nature of the acquisition has to be awarded on the market value of the land as referred to above. At the relevant time, the additional compensation could be awarded to the extent of 10% of the market value of the land as referred to in first clause of Section 23(1) i.e., 10% addition could be made only on the market value of land on the date of issuing of notification under Section 4 of the Act. The Scheme of the Act nowhere stipulates that the market value of land and additional compensation has to be determined on the date of award. 9. Be that as it may, while awarding compensation the relevant date is the date of notification under Section 4 of the Act which is 12.1978. In the present case, the solatium could only be 10% which was provided under the Act on the date of issuance of the notification under Section 4 of the Act as also passing of the award on 110.1979. The Explanation, as provided in Section 23 of the Act, further postulates that in computing the period referred to in Sub-section 1, any period or periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by any order of the Court shall be excluded. In the present case, the acquisition proceedings concluded on 110.1979 when the award had been passed by the Land Acquisition Officer except for the land in question for which compensation could not be determined in view of the interim order passed by this Court. In the present case, the acquisition proceedings concluded on 110.1979 when the award had been passed by the Land Acquisition Officer except for the land in question for which compensation could not be determined in view of the interim order passed by this Court. If contention of learned Counsel for the contesting respondents is accepted, then the whole award dated 110.1979 in regard to remaining 20 bigha 3 biswa land also has to be modified which is not permissible until and unless necessary directions are issued by a competent Court in a reference under Section 18 of the Act. 10. Even otherwise, a bare reading of the impugned orders dated 07.08.1991 and 02.08.1999 would show that the same had been passed without proper application of mind and criteria and both the orders were wholly without jurisdiction. The Judgment s cited by learned Counsel for the contesting respondents are not applicable on the facts and circumstances of the present case since most of the Judgment s are either in the matters of directions issued by a competent Court in a reference made under Section 18 of the Act or in the proceedings which were concluded during the period the amendments sought in the Act were under consideration of Parliament. 11. Having considered entire facts and circumstances, the impugned orders dated 07.08.1991 and 02.08.1999 passed by the Land Acquisition Officer cannot be sustained in the eyes of law. 12. Accordingly, the writ petition is allowed. Both the orders dated 07.08.1991 and 02.08.1999 passed by the Land Acquisition Officer are quashed and set aside. The contesting respondents are held entitled only for the compensation as awarded by the Land Acquisition Officer vide order dated 28.08.1986 or if the above order had otherwise modified by a competent Court in a reference, if any, made under Section 18 of the Act.