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2008 DIGILAW 127 (JK)

Mohd. Akbar Mir v. Gh. Mustafa Mir

2008-04-11

MOHAMMAD YAQOOB MIR

body2008
1. Order dated 09.11.2005 passed by learned District Judge, Budgam is under challenge whereunder petitioner has been commanded to deposit the amount of compensation before the court within three weeks from the date of order for being kept in FDR till reference is decided. It was further stipulated in the order that failure to deposit the compensation amount shall warrant coercive measures for recovery. 2. The short question for consideration is as to whether the District Judge has the power to order for deposit of the compensation money received by the petitioner. For appreciating this controversy precisely factual aspect of the matter is to be noticed. 3. The subject matter of the reference is a piece of land measuring 12 kanals and 6 marlas covered by Survey No. 1223-24/188 in alongwith other property which had been acquired for construction of Railway Station, Nowgam of the proposed Qazi Gund -- Baramulla Rail Project. The land aforesaid is recorded in the name of the petitioner. The respondents seem to have projected before the Collector that land in question actually is owned by the respondent but he had purchased it in the name of petitioner. Dispute regarding title of the land arose consequent to which the Collector made reference to the reference Court i.e. District Judge, Budgam. However, while making the reference the amount of compensation was not deposited in the reference Court as was required to be done in terms of Section 32(2) of the Land Acquisition Act. Instead Collector retained the compensation amount. Respondents filed suit before the Court of Judge Small Causes Court (Sub Judge) Srinagar whereunder order of status-quo was granted with regard to the disbursement of the compensation. The said order was challenged by medium of Civil Revision Petition No. 52/1999. During the pendence of Revision Petition, petitioners herein have filed IA No. 204/1999 which has been disposed of vide order dated 04.06.1999 with the direction to respondent/Collector to disburse the amount of compensation to the rightful claimant without any delay. Subsequently, revision petition no. 52/1999 has been finally disposed of on 14.02.2002 and the order of Status-quo passed by Judge Small Causes Court, Srinagar has been set aside. In the meantime, what happened is that the Collector disbursed the amount of compensation in favour of the petitioners while referring to the order of this Court dated 04.06.1999. 4. Subsequently, revision petition no. 52/1999 has been finally disposed of on 14.02.2002 and the order of Status-quo passed by Judge Small Causes Court, Srinagar has been set aside. In the meantime, what happened is that the Collector disbursed the amount of compensation in favour of the petitioners while referring to the order of this Court dated 04.06.1999. 4. During pendence of reference before the reference Court i.e. District Judge, Budgam, respondents filed an application on 12.12.2001 praying therein for issuance of command to the petitioner to deposit the compensation amount in the Court. Learned District Judge finding the disbursement by the Collector violative of Section 32(2) of the Land Acquisition Act, issued the command for depositing the amount in the Court. Learned District Judge, has correctly opined that pursuant to order dated 04.06.1999 compensation amount was to be paid to the rightful claimants. The Collector was conscious that dispute regarding title vis-a-vis acquired land was pending so surprisingly while snaking reference to the order dated 04.06.1999, he has disbursed the amount in favour of the petitioner herein. 5. The act of the Collector being in violation of Section 32(2) of Land Acquisition Act was required to be set at naught with the object of bringing the action of Collector in line with the statutory requirement. 6. According to the appearing counsel for petitioner reference court had no jurisdiction to ask for deposit of the amount of compensation, so the order impugned is without jurisdiction. In support of his contention, appearing counsel relied upon the judgments reported in 1956, Patna 360; AIR 1996, Karnataka 171; AIR 1991, Delhi 132; AIR 2001, SC 3196; AIR 1994 Andhra Pradesh 199; AIR 2000 SC 3413; AIR 2003 SC 2302 and AIR 1961 SC 1500. 7. Appearing counsel for respondents, while controverting the submission, highlighted that the act of the Collector was totally unwarranted as the Collector by referring the order of the High Court has disbursed the amount when the question of title was in dispute, so rightful claimants would, be the persons declared so after deciding the title of dispute. He further added that the act of the court shall prejudice none so the error crept in, committed by the Collector, was to be rectified. In support reliance was placed on AIR 1958, MP 339. 8. He further added that the act of the court shall prejudice none so the error crept in, committed by the Collector, was to be rectified. In support reliance was placed on AIR 1958, MP 339. 8. Thoughtfully considered the submissions as formulated hereinabove and the question as to whether the District Judge, while dealing with the reference has jurisdiction to order recovery of the compensation amount disbursed in favour of the petitioner. Every case has its, peculiar facts and features, law has to be applied accordingly. The judgments cited by appearing counsel for petitioner, such as AIR 1990, SC 2033; AIR 1991, Delhi 132; AIR 2000, SC 3413; AIR 2001, SC 3196; AIR 1994, AP 199; AIR 2003, SC 2302; AIR 1961, SC 1500 and AIR 1997, SC 2642 are not applicable at all because it is the scope and ambit of Section 32(2) of J&K Land Acquisition Act which correspond to Section 31(2) of the Central Act which is to be considered. In the said judgments the issue as involved was not the subject matter. 9. In other judgment, such as, AIR 1996, Karnataka 17; the object of Section 31(2) has been cleared i.e. the amount in case of dispute is required to be deposited by the Collector so that the persons finally found entitled can easily collect the money alongwith interest. 10. In AIR 1991, Andhra Pradesh 219, it has been held that if a person is not receiving the compensation amount during acquisition proceedings, he can file the suit to recover the amount. Further more, in the said judgment, it has been held: - "It is argued for the respondents that once the award is made, the Collector is bound to tender payment in accordance with the terms of the award until the Civil Court while disposing of the reference under S.I8, sets aside or modifies the Collectors award. In our opinion, this submission cannot be accepted as it ignores the condition laid down in S. 31(1), `unless prevented by one or more of the contingencies mentioned in sub-section (2) of S. 31. As pointed out above, one of the contingencies referred to in S. 31(2) can be said to have occurred if there be any dispute as to title to received the compensation or as to apportionment of it, such dispute arising in the course of the award Inquiry itself. As pointed out above, one of the contingencies referred to in S. 31(2) can be said to have occurred if there be any dispute as to title to received the compensation or as to apportionment of it, such dispute arising in the course of the award Inquiry itself. The words `there be any dispute in our view, do not mean that there must be arisen a fresh dispute after the passing of the award by the Collector. The contingency refers to the dispute which has already arisen in the award, inquiry and in such a case, the Collector is statutory `prevented from making any payment as per the award and he is bound to wait and see till the expiry of the period of limitation under S. 18(2), whether any of the parties to the award is not satisfied with the title to the compensation or its apportionment, as decided by him. If any such reference is sought for under S. 18 to the civil Court, he is bound to deposit the compensation -- at any rate, the disputed part of the compensation -- in the civil court along with the reference under S. 31(2). The idea is that the amount should he `ready for disposal as soon as the civil Court, acting on the reference, decides the question of title and apportionment." 11. In the judgment reported in AIR 1956, Patna 360, in the particular factum and circumstances of the case, it has been held that the District Judge has no power to direct the Collector to realize the compensation money from such of the claimants who had been paid in contravention of Section 31(2) of Land Acquisition Act, but this judgment had been passed in the particular background of the features which are not similar to the case in hand, so is not applicable. 12. On the other hand, the judgment relied on by the appearing counsel for respondents reported in 1958, MP 339, is quite applicable to the features of the present case wherein it has been held: "Here it is quite clear tin it the Collector Acted with considerable hurry and in defiance of the law laid down in sub sec.31 of the Land Acquisition Act in making the payment one of the parties received it under protest while the other received it without protest either by it or by the opposite side. The Collector was in error in making the payment when there was a dispute as to who should receive compensation money, and this is a matter which the Court must rectify to bring the action of the Collector in line with the statutory requirements. Further held: We are of opinion in this case that the action of the Collector was erroneous paying out the money when a dispute as to the right to receive the compensation existed. We are also of opinion that the Learned Judge in the Court below are perfectly justified in asking that the money be returned, as an interim measure though he was in error in the thinking that the payment of the money ousted his jurisdiction. We hold that he had the jurisdiction to hear the case in spite of a wrong payment to the Hitkarani Sabha, and we direct the Learned Judge to hear this case as early as possible, giving it absolute priority over other cases" 13. In my considered opinion, in the case in hand, the Collector has exceeded the jurisdiction and has committed a great error while disbursing the amount in favour of the petitioner that too while making reference to the order of this: Court dated 04.06.1999 whereunder it had been ordered that the compensation amount shall be paid to the rightful claimants. The rightful claimants will be the persons as shall be decided by the Court before whom reference is pending, so the Collector; knowing the fact of dispute vis-a-vis title of the land, in question, should not have disbursed the amount in favour of the, petitioners. The act of the court shall prejudice none is quite applicable in the given circumstances. The Collector has not only acted in violation of Section 32(2) of the Land Acquisition Act but has also acted in violation of the order dated 04.06.1999 of this Court. Therefore, the error committed by the Collector has been rightly rectified by asking the petitioner to deposit the amount of compensation in the reference court; otherwise, tricksters may get encouraged to get the process of law defeated by playing the different tricks. 14. Therefore, the error committed by the Collector has been rightly rectified by asking the petitioner to deposit the amount of compensation in the reference court; otherwise, tricksters may get encouraged to get the process of law defeated by playing the different tricks. 14. In the upshot, it can safely be concluded that the order impugned has been passed within the confines of law so does not call for any interference, No material irregularities is noticed nor jurisdictional error has been committed neither any failure of justice has been caused. Hence order dated 09.11.2005 is upheld. Revision dismissed. Copy of order be sent to the reference court i.e. District Judge, Budgam for information. Appearing counsel to ensure presence of the parties before the reference court on 22.04.2008. 15. Petition accordingly disposed of.