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2012 DIGILAW 346 (JK)

Union of India v. Kaulan Devi & Ors.

2012-07-01

MANSOOR AHMAD MIR

body2012
1. By the medium of this appeal, the appellant has invoked the jurisdiction of this Court in terms of Section 10 of the Jammu & Kashmir Requisitioning and Acquisition of Immoveable Property Act, 1968 (Act No. XXXV of 1968) (hereinafter, for short, Act) and has questioned the award dated 13.01.2009 passed by the Principal District Judge, Kathua in File No.24, whereby compensation came to be enhanced from Rs.4000/- per kanal to Rs.31000/- per kanal with 9% interest (for short, impugned award), on the grounds taken in the memo of appeal. 2. Acquisition proceedings came to be drawn in terms of section 7(1) of the Act and the land in question, the description of which is given in the award, was acquired and compensation to the tune of Rs.4000/- per kanal came to be awarded, though not accepted by the respondents herein. An application was moved before the Deputy Commissioner, Kathua for referring the matter to the arbitrator for determination of the compensation, which was not acceded to, and that resulted in filing of OWP No.925/1992, was allowed vide judgment dated 27.05.1993 with a command to the Government to appoint an arbitrator in terms of section 8 of the Act, which was not complied with, constrained the respondents herein to file the contempt petition. Principal District Judge, Kathua came to be appointed as the arbitrator for determining the compensation. Proceedings were drawn by the District Judge/Arbitrator and compensation was enhanced from Rs.4000/- per kanal to Rs.31000/- per kanal. Feeling aggrieved, Union of India-appellant herein has questioned the same by the medium of instant appeal. 3. Learned counsel for appellant argued that the arbitrator had to hear and array Union of India through Defence Estate Officer, Circle Jammu as a party in the array of respondents therein, which has not been done, though appellant herein is a ‘person interested’ in terms of section 2(d) of the Act. 4. Learned counsel for respondents herein resisted the appeal on the ground that the appellant is not a ‘person interested’ as per the mandate of section 2(d) of the Act. In terms of section 8 of the Act, the Government was bound to appoint District Judge, Kathua as an arbitrator in the matter to determine the compensation. It is apt to reproduce relevant para of the judgment herein. In terms of section 8 of the Act, the Government was bound to appoint District Judge, Kathua as an arbitrator in the matter to determine the compensation. It is apt to reproduce relevant para of the judgment herein. “The petitioner Kaulan Devi filed an application on 24.3.1992 through her attorney Rajinder Singh before the Deputy Commissioner for request to Government to appoint an Arbitrator for determining the compensation. The Collector did not make such request to the Government and thereafter the petitioner Mst. Koulan Devi along with others filed Writ Petition No.925/1992 in the Hon’ble High Court and vide order dated 27.5.1993 the Hon’ble High Court was pleased to issue directions to the Government to appoint an Arbitrator in terms of Section 8(1)(b) of the R.A.I.P. Act but even then the Arbitrator was not appointed. The petitioner Kaulan Devi again approached the Hon’ble High Court and filed a contempt petition in which notice was issued to the Government and only thereafter the Government appointed District Judge, Kathua to determine the compensation as envisaged under Section 8 of the R.A.I.P. Ac and in this way the proceedings came to be initiated before this Court for determination of appropriate compensation to which the petitioners are entitled to on account of acquisition of their land under reference.” Parties filed their objections and following issues came to be famed. “i. Whether the petitioner Mst. Kolan Devi is entitled to the compensation of the land belonging to her @ Rs1.00 lac per kanal and whether petitioners No.2 to 52 (now 2 to 67) are entitled to the compensation of the land belonging to them @ Rs.40,000/- per kanal? OPP ii. Whether the petitioners are entitled to have jabrana @ 15% on the awarded amount along with interest @ 18%? OPP iii. Whether petitioners 2 to 52 (now 2 to 67) are entitled to the compensation of the standing trees over their land and how much? OPP NO.2 to 52 iv. Relief.” 5. Respondents herein placed on record affidavits as well as documents in support of their claim. Collector also placed on record documents, particularly affidavit of Defence Estate Officer dated 19.12.1996, and the parties led their evidence. 6. There is a proof on the file that the Collector also acquired land measuring 1754 kanals, situated at Village Chak Sona Noopa, Tehsil Kathua and Rs.31000/- per kanal was awarded as compensation. Collector also placed on record documents, particularly affidavit of Defence Estate Officer dated 19.12.1996, and the parties led their evidence. 6. There is a proof on the file that the Collector also acquired land measuring 1754 kanals, situated at Village Chak Sona Noopa, Tehsil Kathua and Rs.31000/- per kanal was awarded as compensation. The said village/land is only four kilometers away from Kalibari, Kathua, whereas the land of the petitioners is situated at Village Dhanna, Tehsil Kathua, which is only one kilometer away from the National Highway. 7. Arbitrator after scanning the entire evidence and the circumstances of the case held that respondents herein are entitled to compensation @ Rs.31000/- per kanal on the ground that the Collector had already awarded same compensation for the similarly situated land. Respondents herein though had placed on record sale deeds of small parcels of land to show that more than Rs.60,000/- per kanal should be awarded as compensation, the arbitrator has held that the same cannot be pressed into service for assessing compensation. The arbitrator while assessing the compensation has also taken into consideration the judgments of Apex Court in Thakarsibhai Devjibhai vs Executive Engineer, Gujarat, AIR 2001 SC 2424 . 8. The Apex Court in Union of India vs Harpat Singh, 2009 AIR SCW 5168 and Sagunthala vs Special Tehsildar, 2010 AIR SCW 1457 has laid down the guidelines how to award compensation and the relevant factors to be borne in mind while awarding compensation. 9. Keeping in view the test laid down and the reasoning given by the District Judge-arbitrator in the impugned order at para 13 & 14, I am of the considered view that Rs.31,000/- per kanal is just compensation which was to be awarded in favour of respondents herein, came to be rightly enhanced and awarded and, thus, needs no interference. 10. The argument of learned counsel for appellant that the appellant was not made party while determining the compensation by the arbitrator is devoid of force for the following reasons. Appellant-Defence Estate Officer was in knowledge of pendency of the proceedings before the Arbitrator as he had filed the affidavit on 19.12.1996 resisting the enhancement of compensation. The said affidavit was taken on record. Appellant-Defence Estate Officer was in knowledge of pendency of the proceedings before the Arbitrator as he had filed the affidavit on 19.12.1996 resisting the enhancement of compensation. The said affidavit was taken on record. Thus, the appellant was in knew of the pendency of proceedings, but it did not choose to lay application for arraying it as a party, was contesting the case through Collector and was aware of all along pendency of the proceedings, so appellant cannot claim prejudice. My this view is fortified by the judgment of this Court in Collector vs Bansi Lal, 2010 (2) JKJ 383 HC. It is apt to reproduce para 17 & 19 herein. “17. There is no dispute with this proposition of law that the intending department is an interested party. This view is settled by the various judgments of the Apex Court. The mandate of law is that they ought to be heard before any order is passed by the District Court or this Court. The object of impleading the respondents as party is to ensure that they should not go unheard. It is also true that rule of natural justice is not ritual which is to be performed by the Court. The aim of the rule of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. This rule can operate only in areas not covered by any law validly made. Whenever a complaint is made before the Court that some principle of natural justice has been violated, the Court has to decide whether the observance of that rule was necessary for just decision of the facts of the case.” “19. Even though no notice has been issued by the learned District Judge to the intending department, but the intending department has shown its awareness all along regarding the pendency of the proceedings. They were well within their rights to file an application seeking their impleadment before the court below. Where the intending department is aware of the proceedings, it cannot claim that it was prejudiced because of non-issuance of notice by the reference Court. It could have filed an application under Order 1 Rule 10 for being impleaded as a party respondent.” Now the question is as to whether the appellant is personally interested. The answer is in negative. Section 2(d) of the Act, reproduce hereinbelow, defines interested person. It could have filed an application under Order 1 Rule 10 for being impleaded as a party respondent.” Now the question is as to whether the appellant is personally interested. The answer is in negative. Section 2(d) of the Act, reproduce hereinbelow, defines interested person. “the expression “person interested” in relation to any property, includes all persons claiming, or entitled to claim, an interest in the compensation payable on account of the requisitonining or acquisition of that property under this Act.” Section 8 provides that what are the principles and methods of determining compensation. It is apt to reproduce section 8(b), (c) & (d) herein. “(b) where no such agreement can be reached, the Government shall appoint as arbitrator a person, who is a District Judge or Additional District Judge; (c) the Government may, in any particular case, nominate a person having expert knowledge as to the nature of the property requisitioned or acquired to assist the arbitrator and where such nomination is made, the person to be compensated may also nominate an assessor for the same purpose; (d) at the commencement of the proceedings before the arbitrator, the Government and the person to be compensated shall state what in their respective opinion is a fair amount of compensation.” While going through the mandate of section 8 of the Act, it can be safely held that it is the Government and the person in whose favour compensation is to be awarded and paid are the persons who are to be heard. The same question came up for consideration before the Apex Court in a case in W. B. State Warehousing Corpn. vs M/S Indrapuri Studio Pvt. Ltd., AIR 2011 SC 47 . It has been held that the person for whose benefit premises is requisitioned have no locus-standi to participate in proceedings for determination of compensation or in matter of appointment of arbitrator. He cannot be termed as ‘person interested’. The Apex Court considered section (c) & (d) of section 11(1) of Land Acquisition Act, 1894 and also section 3(b) of the said Act and definition ‘person interested’ contained in West Bengal Premises Requisition and Control (Temporary Provision) Act, 1947 (corresponds to Section 8(1) of the Jammu & Kashmir Requisitioning and Acquisition of Immoveable Property Act, 1968). It is apt to reproduce relevant portion of para-9 herein. “9. We have considered the respective submissions. It is apt to reproduce relevant portion of para-9 herein. “9. We have considered the respective submissions. Sections 2(d), 3(1), 6, 11, 12 and 13 of the Act and Rules 7, 8, 9, 10, 13 and 15 of the Rules, which have bearing on the decision of this appeal read as under: The W.B. Premises Requisition and Control Act, 1947. 2..……. 3. …… 6. …… 11. Procedure for fixing compensation.-- (1) Where any premises are requisitioned under this Act, there shall be paid to all persons interested compensation the amount of which shall be determined in the manner, and in accordance with the principles hereinafter set out, namely:-- (a) where the amount of compensation can be fixed by agreement, it shall be paid in accordance with such agreement; (b) where no such agreement can be reached, the State Government shall appoint a District Judge or an Additional District Judge as arbitrator; (c) the State Government may, in any particular case, nominate a person having expert knowledge as to the nature of the premises requisitioned, to assist the arbitrator, and where such nomination is made, the person to be compensated may also nominate an assessor for the said purpose; (d) at the commencement of the proceedings before the arbitrator, the State Government and the person to be compensated shall state what in their respective opinions is a fair amount of compensation.” It is apt to reproduce para 11 & 12 of the judgment herein. “11. What is most significant to note is that neither at the stage of fixing the amount of compensation by agreement nor at the time of appointment of Arbitrator, the State Government is required to consult any person including beneficiary of the requisition. The only person with whom the State Government is required to negotiate the amount of compensation is the one whose premises are requisitioned. An application for reference of the case to the Arbitrator can be made only by a person who was a party to the unsuccessful exercise undertaken for fixing the amount of compensation by agreement. If the State Government nominates a person having expert knowledge as to the nature of the requisitioned premises to assist the Arbitrator, a corresponding right is available to the person whose premises are requisitioned to nominate an assessor. If the State Government nominates a person having expert knowledge as to the nature of the requisitioned premises to assist the Arbitrator, a corresponding right is available to the person whose premises are requisitioned to nominate an assessor. In terms of Section 11(1)(d), only the State Government and the person to be compensated have the right to state their respective opinions as to the fair amount of compensation. The person to whom the requisitioned premises are transferred has no role in any one of these matters. The use of expression `the person to be compensated' in clauses (c) and (d) of Section 11(1) clinches the issue. A person like the appellant certainly does not fall in the category of the person to be compensated. 12. As a sequel to the above, it must be held that a person for whose benefit the premises are requisitioned or to whom the requisitioned premises are transferred does not have any locus to participate in the process of determination of compensation by agreement, or in the matter of appointment of an Arbitrator or reference of case to the Arbitrator or nomination of an assessor. A person like the appellant can neither submit opinion under Section 11(1)(d) as to the fair amount of compensation nor the Arbitrator is obliged to give notice and opportunity of hearing to such person under Section 11(1)(e) read with Section 12(a), (b) or (c). Therefore, such person is neither entitled to copy of the award as of right nor he can challenge the award by filing an appeal under Section 11(1)(f) and the High Court did not commit any error by declaring that the appeal filed by the appellant was not maintainable.” It is worthwhile to mention herein that the appellant has not raised any ground in the memo of appeal nor learned counsel for appellant addressed the argument to the effect that the arbitrator has no power and competence to award interest in terms of mandate of the Act. In terms of mandate of the Act, the arbitrator cannot award interest or solatium because the Act does not provide for awarding solatium or interest. In terms of mandate of the Act, the arbitrator cannot award interest or solatium because the Act does not provide for awarding solatium or interest. My this view is fortified by the judgments of Supreme Court in Union of India vs District Judge, (1994) 4 SCC 737 , Union of India vs Dhanwanti Devi, (1996) 6 SCC 44 and judgment of Division Bench of this Court in case Parvesh Kumari vs State of J&K, 2004 (2) JKJ HC 145. Thus the District Judge has fallen in error while granting interest @ 9%. Having glance of the above discussion, the appeal is dismissed, impugned award is upheld except awarding of 9% interest.