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2010 DIGILAW 41 (JK)

Housing Board, J&K v. Irshad Hussain Baba

2010-02-03

MOHAMMAD YAQOOB MIR

body2010
1. A big chunk of land measuring 416 kanals and 10 marlas situated in Fatehgarh stand acquired as required by Housing Board -- (Petitioner) for a housing colony. 2. After following the procedure as prescribed under the provisions of Land Acquisition Act (hereinafter referred to as "the Act") land has been acquired and the award in terms of Section 11 of the Act has been made. The rate has been fixed as Rs.8,000/ per kanal for orchard and Rs.6,000/ per kanal for other land. The land was acquired in two parts. In the second part land include 53 kanals 10 marlas belonging to respondent No.2. The award vis-a-vis first part has been passed on 12.12.1984 and for second part on 4.4.1986. 3. Two applications, one by Ghulam Rasool S/O Qadir on 8.4.1986 and another by Ghulam Rasool Baba on 14.5.1986, came to be filed before the Collector for making reference as they were not satisfied with the rates, as result thereof reference was made to the District Court. 4. The admitted position is that it is only Ghulam Rasool Baba (father of respondent No.2) who had received the amount of compensation under protest, rest no one had accepted the compensation amount under protest, resultantly it is only the application of respondent No.2 which survived for consideration before the Reference Court i.e. Learned District Judge, Anantnag. 5. The Reference Court while determining the actual amount of compensation per kanal has concluded that the market value of the land at the time of notification under Section 4 of the Act was Rs.13,000/ per kanal vis-a-vis orchard land and Rs. 10,000/ per kanal vis-a-vis other land. Based on such fixation of market rate the Reference court in total has granted the compensation to the tune of Rs.2,63,350/ in favour of respondent No.2. Interest has also been awarded @ 6% from the date of taking over possession i.e. September, 1978 and costs to the tune of Rs.5,000/ have also been awarded. 6. Based on such fixation of market rate the Reference court in total has granted the compensation to the tune of Rs.2,63,350/ in favour of respondent No.2. Interest has also been awarded @ 6% from the date of taking over possession i.e. September, 1978 and costs to the tune of Rs.5,000/ have also been awarded. 6. The respondent No.2 filed an application for execution of the decree so passed by learned District Judge and vide order dated 6.3.2002 learned District Judge directed the petitioner Board to deposit the decretal amount along with interest otherwise resort shall be had to coercive measures as permissible under Order 21 Rule 30 CPC which would include detention of the Deputy General Manager in civil prison or attachment or sale of his property or both. 7. Petitioner seem to have filed an application in the execution proceedings for being impleaded as party. Same has been allowed on 17.4.2002, at the same time one months time has been granted to the petitioner Board for satisfying the decree. 8. The petitioner instead of further contesting the matter before the Executing Court has filed the instant petition invoking the writ jurisdiction of this Court on the premises that the judgment as well as execution proceedings are illegal and void as the petitioner was not put to any notice by the Reference Court nor is a party figuring in the judgment passed by the learned District Judge. 9. It is also contended that the petitioner being an indenting department was a necessary party before the Reference Court and the Reference Court was obliged to put the petitioner on notice before determining the final value of the land and the total amount of compensation. In absence of petitioner rates determined are not binding on the petitioner Board. 10. The respondents have not filed any reply from 7.11.2002 till 29.9.2004 on which date petition was admitted to hearing and respondents were put on notice to file the counter affidavit which they failed to file and even they have also chosen not to remain present from 18.7.2008 onwards. 11. Learned counsel appearing for the petitioner at the very outset would contend that the legal position relatable to the controversy has already been set at rest by this Court in the judgment rendered in the case titled SKUAST & Ors. v. Collector & Ors (OWP No.336/1998 & OWP No.398/1998) dated 26.10.2009. 12. 11. Learned counsel appearing for the petitioner at the very outset would contend that the legal position relatable to the controversy has already been set at rest by this Court in the judgment rendered in the case titled SKUAST & Ors. v. Collector & Ors (OWP No.336/1998 & OWP No.398/1998) dated 26.10.2009. 12. In the said judgment indenting department was not a party before the Collector when the market value of all types of land acquired was determined. The indenting department had moved an application in execution proceedings for being arrayed as party, same was rejected. The indenting department filed two writ petitions without having recourse to filing appeal against the judgment of the District Court. The Coordinate Bench of this Court noticed the law as has been settled by the Honble Apex Court in case titled U.P. Awas Evam Vikas Parishad v. Gyan Devi & Others, reported in AIR 1995 SC 724 and has concluded that Section 48 of the State Act being in para materia with the provisions of Section 50(2) of the Act on which the Honble Supreme Court has declared the law, thereafter has answered the formulated questions by holding that the petitioner-University therein had the right to adduce evidence before the Court for determination of appropriate compensation but when no notice was issued, the University was made party nor the University has been made to participate, the enhanced compensation granted by District Court was not valid. The Reference Court having enhanced the compensation without providing opportunity to petitioner-University to lead evidence, same is in violation of the provisions of Section 48 (2) of the Act and the law declared by Honble Supreme Court of India in the above referred case, the Reference Court award was rendered void. Finally it was concluded that when any judgment, order, decree or award is made without following the law declared by the Honble Supreme Court of India, same would be unconstitutional being in violation of provisions of Article 141 of the Constitution of India, which mandate that the law declared by the Supreme Court of India to be binding on all Courts of the Country. 13. 13. The award being un-constitutional, the omission of the petitioner-University to question it in appeal would not operate as an impediment for the Court to exercise jurisdiction under Section 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir. The controversy in the reported judgment more or less is similar to the facts and circumstances of the case in hand. The law laid down by the Honble Apex Court in the judgment referred above is quoted as under: 1. Section 50 (2) of the L. A. Act confers on a local authority for whom land is being acquired a right to appear in the acquisition proceedings before the Collector and the reference Court and adduce evidence for the purpose of determining the amount of compensation. 2. The said right carried with it the right to be given adequate notice by the Collector as well as the reference court before whom acquisition proceedings are pending on the date on which the matter of determination of compensation will be taken up. 3. The proviso to Section 50(2) only precludes a local authority from seeking a reference but it does not deprive the local authority which feels aggrieved by the determination of the amount of compensation by the Collector or by the reference court to invoke the remedy under Article 226 of the Constitution as well as the remedies available under the L. A. Act. 4. In the event of denial of the right conferred by Section 50(2) on account of failure of the Collector to serve notice of the acquisition proceedings the local authority can invoke the jurisdiction of the High Court under Article 226 of the Constitution. 5. Even when the notice has been served on the local authority the remedy under Article 226 of the Constitution would be available to the local authority on grounds on which judicial review is permissible under Article 226. 6. The local authority is a proper party in the proceedings before the reference court and is entitled to be impleaded as party in those proceedings wherein it can defend the determination of the amount of compensation by the Collector and oppose enhancement of the said amount and also adduce evidence in this regard. 7. In the event of enhancement of the amount of compensation by the reference court if the Government does not file an appeal. 7. In the event of enhancement of the amount of compensation by the reference court if the Government does not file an appeal. The local authority can file an appeal against the award in the High Court after obtaining leave of the court. 8. In an appeal by the person having enhancement of the amount of compensation awarded by the reference court the local authority should be impleaded as party and is entitled to be served notice of the said appeal. This would apply to an appeal in the High Court as well as in this Court. 9. Since a company for whom land is being acquired has the same right as a local authority under Section 50(2), whatever has been said with regard to a local authority would apply to a company too. 10. The matter which stand finally concluded will, however, not be reopened. We, therefore, allow the applications submitted by the Board for being impleaded as a respondent in the appeals filed by the land owners in this Court and direct that the Board be also impleaded as a respondent in the appeals filed by the land owners in the High Court. The judgment of the Allahabad High Court dated December 21, 1990 in First Appeal Nos.584, 585 and 642 of 1985 and the judgment of the said High Court dated April 18, 1991 in First Appeal Nos.586, 587 and 641 of 1985 as well as the order dated January 20, 1993 on the review applications filed against the judgment dated April 18, 1991 are set aside and the said appeals are remitted to the High Court for decision in accordance with law. The appeals are disposed of accordingly. There will no order as to costs." 14. The indenting department being a necessary party having vital interest vis-a-vis determination of the market value of the land acquired was required to be heard. The Collector no doubt was a party but Collector works as a bridge between the land owners and the indenting department and ensures proper acquisition and transfer of the land. The compensation amount has to borne by the indenting department so it is the said department which has to bear the cost. In absence of indenting department, determination of the market rate of the land jeopardizes their interest. 15. The compensation amount has to borne by the indenting department so it is the said department which has to bear the cost. In absence of indenting department, determination of the market rate of the land jeopardizes their interest. 15. That apart, the law is declared by the Honble Apex Court as noticed hereinabove gets violated when the same is binding. In presence of law as laid down by the Honble Apex Court, the judgment (award) passed by the Reference Court becomes un-constitutional, so interference by this Court by having resort to Article 226 of the Constitution of India read with Section 103 of the Constitution of J&K Slate is not in any way restricted. It is a fit case where powers have to be exercised so that violence to the justice is avoided. 16. The judgment (award) and decree passed by the Reference Court i.e. learned District Judge, Anantnag is set aside along with the orders passed on the execution proceedings. Case is remanded back to learned District Judge, Anantnag. Petitioner-Board shall stand impleaded as party/respondents in the reference. Learned Reference Court shall record the evidence afresh as shall be produced by both the parties vis-a-vis the determination of the market value of the land/orchard land acquired and pass appropriate orders as shall be warranted. 17. Copy of the judgment be sent to the Court of District Judge, Anantnag where the petitioner shall ensure presence on 23rd February, 2010. Learned Reference Court before proceeding further in the matter shall put the respondent No.2 and the Collector on notice. Disposed of as above.