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2013 DIGILAW 284 (HP)

ATTAR SINGH PATHANIA v. COLLECTOR LAND ACQUISITION

2013-04-09

DEV DARSHAN SUD, KULDIP SINGH

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JUDGMENT DEV DARSHAN SUD, J.- 1. GRIEVANCE of the petitioner in this writ petition is that the Land Acquisition Collector unilaterally refunded an amount of Rs.28,92,948/- to the State holding that the said amount was not payable to the petitioner herein, who was claimant before the Collector. 2. IT is undisputed before us that these acquisition proceedings were the subject matter of RFA No.204 of 2002 which was disposed of by Hon'ble Mr. Justice Kuldip Singh, J. by a detailed judgment dated 18th November, 2010. Copy of the judgment has been placed on the record of the case. His Lordship while disposing of the appeal, was pleased to direct that interest would be payable to the claimant from the date of notification under Section 4 of the Act and the rate of the acquired land was enhanced to Rs.72,600/- per bigha. The award having attained finality, the only course open to the petitioner herein is to initiate execution proceedings to recover the amount due to him. Submission made by learned counsel appearing for the petitioner before us was that once the amount having been deposited by the State before the Collector, no order could be passed by him purportedly exercising review jurisdiction to return that amount to the State. What was submitted before us by learned Additional Advocate General was that this amount probably represented the interest on the amount awarded by the Collector from the period when the possession was taken till notification under Section 4 of the Act, the petitioner being not entitled to this amount could lay no claim to it. 3. LEARNED counsel appearing for the appellant has drawn our attention to the judgment of Supreme Court in R.L. Jain (D) by Lrs. Versus DDA and others, (2004)4 SCC 79 holding: "18. In a case where the landowner is dispossessed prior to the issuance of preliminary notification under Section 4(a) of the Act the Government merely takes possession of the land but the title thereof continues to vest with the landowner. It is fully open for the landowner to recovery the possession of his land by taking appropriate legal proceedings. He is therefore only entitled to get rent or damages for use and occupation for the period the Government retains possession of the property. It is fully open for the landowner to recovery the possession of his land by taking appropriate legal proceedings. He is therefore only entitled to get rent or damages for use and occupation for the period the Government retains possession of the property. Where possession is taken prior to the issuance of the preliminary notification, in our opinion, it will be just and equitable that the Collector may also determine the rent or damages for use of the property to which the landowner is entitled while determining the compensation amount payable to the landowner for the acquisition of the property. The provisions of Section 48 of the Act lend support to such a course of action. For delayed payment of such amount appropriate interest at prevailing bank rate may be awarded." (pp.93-94) 4. LEARNED counsel also relied upon the decision of the Supreme Court in Land Acquisition Officer & Asstt. Commissioner and another versus Hemanagouda and others, (2005) 12 SCC 443 and lastly on the decision in Special land Acquisition Officer versus Karigowda and others, (2010)5 SCC 708 reaffirming the decision in R. L. Jain's case (supra), holding: "106................................................................................... (iv). Following the principle and the directions stated by this Court R.L. Jain Case, we grant liberty to the claimants to file applications before the competent authority (State Government/Collector concerned) to claim damages for their dispossession from the lands owned by them as a result of submerging, till the date of issuance of Notification under Section 4 of the Act i.e. 4.4.2002. These applications may be filed within eight weeks from the date of pronouncement of this judgment. If such applications are filed we direct the competent authority to consider the same sympathetically and award such amounts to the claimants as may be payable in accordance with law expeditiously. We make it clear that the amounts, if already paid for this period, shall be adjusted." (p.746) Learned counsel appearing for the petitioner submits that this grants a right to the petitioner to claim use and occupation charges/damages/interest for the period when the land was utilized by the State without payment of any money etc. 5. We make it clear that the amounts, if already paid for this period, shall be adjusted." (p.746) Learned counsel appearing for the petitioner submits that this grants a right to the petitioner to claim use and occupation charges/damages/interest for the period when the land was utilized by the State without payment of any money etc. 5. WE dispose of this petition with the following directions that (a) it will be open to the petitioner herein to execute the award passed in RFA No.204 of 2002 since it had attained finality and (b) it will be open to the petitioner to pursue his case for use and occupation charges/damages etc. in terms of the three decisions of the Supreme Court (supra). 6. ALL pending miscellaneous applications also stand disposed of.