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2014 DIGILAW 127 (JK)

Union of India and Anr. v. O. P. Kotwal and Ors.

2014-03-25

M.M.KUMAR, MUZAFFAR HUSSAIN ATTAR

body2014
1. Union of India and its functionaries have filed the instant appeal under clause 12 of the Letters Patent challenging judgment and order dated 09.07.2013 rendered by the learned writ Court whereby it has allowed the writ petition filed by the writ petitioner-respondent by issuing direction to the appellants which reads as under: The petitioner shall make a representation to respondent No. 4 giving all relevant details therein together with the extent of his land comprised in each of the Khasra numbers and the number of non fruit bearing trees standing thereon. Respondent No. 4 shall conduct on the spot physical verification of the claims as may be put forth by the petitioner in his representation, either personally or through his subordinate agencies, in collaboration with the concerned Forest Ranger and the Defence Estates Officer. Respondents 1 and 2 shall make it convenient for respondent No.4 to have such physical verification conducted. In the event any of the claims of the petitioner are found to be truthful, the compensation thereof shall be assessed and calculated on the rates as were taken into account while passing the award in question. Respondent No. 4 shall take the necessary follow up action with respondent No. 2 of release of payments, if any, found due to the petitioner, and handing over and taking of such left out properties of the petitioner-whether comprised of land or trees. The needful shall be done within three months from the date copies of this order are served on the respondents. 2. Mr. Jamwal, learned CGSC appearing for the appellants has vehemently argued that notification under Sections 4 and 6 of the Jammu and Kashmir Land Acquisition Act, 1990 (1934 A.D) (for brevity the Act?) was issued on 26.07.1994 and the award was announced on 08.06.1996. 3. The petitioner-respondent filed OWP No. 27/2005 relatable to the instant appeal claiming that the Collector had failed to include value of certain items belonging to the petitioner-respondent including non-fruit trees (Deodar), fruit bearing trees and others things. According to the averments made in the petition, the petitioner-respondent claimed that Collector was under obligation to include value of the standing fruit bearing trees/non fruit bearing trees like Deodar in the award and, therefore, compensation in lieu thereof should have been given to him. According to the averments made in the petition, the petitioner-respondent claimed that Collector was under obligation to include value of the standing fruit bearing trees/non fruit bearing trees like Deodar in the award and, therefore, compensation in lieu thereof should have been given to him. The prayer made by the petitioner-respondent was opposed by the appellants on the ground that remedy available to the petitioner- respondent under Section 18 of the Act of 1990 by seeking reference of his claim through the Collector was not availed and, therefore, no writ could have been filed and, that too, after a period of nine years. Another objection taken by the appellants was that the awarded amount was accepted by the writ petitioner-respondent without any demur. 4. Learned Single Judge felt persuaded by the fact that a report was submitted by the DFO to the Collector Land Acquisition (SDM) Bhaderwah on 26.05.1996 and the same was in fact accepted by the DFO. Learned Single Judge also observed that there was apparent conflict between the reports filed by the DFO which mentioned total number of trees as 51 by giving break up, whereas award has taken the number of trees as 12. The Collector did not accept the report of the DFO in its totality and concluded that there were only 12 Deodar trees. Accordingly, the value of 12 trees was assessed which constituted a part of the award. 5. The petitioner-respondent has also filed cross objections asserting that the appeal is not maintainable and an innocuous order has been passed by the writ Court directing the writ petitioner-respondent to make representation to the Collector, who was to conduct on spot physical verification of the claim made by the petitioner-respondent. It has also been stated that judgment stands implemented, inasmuch as, the Collector has visited the area along with his team and has assessed the claim. 6. We have heard learned counsel for the parties and perused the record with their able assistance. 7. The question for consideration before this Court is whether provision of Section 18 of the Act of 1990 could be bye-passed and a writ petition be filed by keeping quiet from 1996 to 2005 raising the disputed questions of fact before the writ Court. It is pertinent to make reference to Section 18 of the Act which is set out below in extenso: 18. It is pertinent to make reference to Section 18 of the Act which is set out below in extenso: 18. Reference to Court (1) Any person interested who has not accepted the award may, by written application to the Collector require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable or the apportionment of the compensation among the persons interested. (2) The application shall state the grounds on which objection to the award is taken: Provided that every such application shall be made,- (a) If the person making it was present or represented before the Collector at the time when he made his award within six weeks from the date of the Collector’s award; (b) In other case, within six weeks of the receipt of the notice from the Collector under Section 12, sub section (2) or within six months from the date of the Collector’s award, whichever period shall first expire. 8. A perusal of Section 18 of the Act would show that any person interested, who refuses to accept the award, may in writing to the Collector request him that the matter be referred by the Collector for determination of the Court. Objections may include the issue of apportionment amount of compensation, measurement of land etc. Obviously, it would include claims to be made in respect of super structure and trees as the same is included in the definition of land as given in Section 3(a) for seeking adjudication of reference under Section 18 of the Act. The period of six weeks? has been prescribed for those who were present or who were represented before the Collector from the date of Collector’s award and in other cases, period of six weeks has been prescribed for those who were not present or represented. The period is to reckon from the date of receipt of notice from the Collector under Section 12(2) or maximum period prescribed is six months from the date the Collector’s award. 9. It is evident from the preceding paras that the petitioner- respondent did not file any application under Section 18 of the Act claiming value of the left out trees from the award nor he raised any objection at the time of announcement of the award. 9. It is evident from the preceding paras that the petitioner- respondent did not file any application under Section 18 of the Act claiming value of the left out trees from the award nor he raised any objection at the time of announcement of the award. The question which confronts the Court is Whether after announcement of the award on 08.06.1996 the petitioner-respondent was entitled to file a writ petition under Article 226 of the Constitution in the year 2005 with a delay of 9 years?. 10. The legal position is no longer res integra and is settled by Hon?ble the Supreme Court in the case of Mirza Majid Hussain v. State of M.P and anr, (1995) 2 SCC 422 . In that case reference under Section 18 was filed before the Collector which was rejected. The order rejecting the reference was challenged in a revision petition before the District Judge and on 29.06.1983 the District Judge rejected the revision. It was after 5 years that a writ petition in the High Court was filed which was dismissed on the ground of inordinate delay, holding that the Collector rejected the reference on 02.04.1975 and District Judge declined the relief on 29.06.1983. The land owner slept over the matter for more than 5 years and then filed the writ petition. However, there was delay of more than 10 years in filing the writ petition from the date of the order of the Land Acquisition Collector. Dealing with the aforesaid issue their Lordships of the Supreme Court held that against the order of the Collector, rejecting the reference, only a revision could have been filed in the High Court as per the local amendment made by the State legislature in Section 18 and proceeded to observe as under:- Thus, it could be seen that against the order of rejection of reference by the Collector on 2 5.75 only jurisdiction that could be exercised as per the amendment is by the High Court under s.115 C.P.C. Thereby, by exercise of the power by District Judge in this behalf is clearly without authority of law or jurisdiction. The order of the District Judge, therefore, is a nullity. 4. The order of the District Judge, therefore, is a nullity. 4. Then we have to see whether the appellant was justified in approaching the High Court after an inordinate delay of more than 10 years from the date of the order of the Collector or at any rate from the date of the order passed by the District Judge. The High Court exercised its jurisdiction under Art.226 but not under s. 115 C.P.C. Even if it is to be converted as a revision under Sec. 115 C.P.C., the order of the High Court is not vitiated by any error of jurisdiction or material irregularity in the exercise of its jurisdiction. The High Court has rightly refused to exercise its discretionary jurisdiction after an inordinate delay of more than 5 years from the date of the order of the District Judge and more than 10 years from the date of the order of the Land Acquisition Collector. Under these circumstances, we do not think that it is a case warranting interference by this Court under Article 136. 11. The aforesaid judgment makes it patent that even in a case where reference under Section 18 of the Act has been filed and the order rejecting the reference has not been challenged, then the delay would intervene to defeat the rights of the land owner. In the present case the award was announced in the year 1996 and the writ petition was filed after a delay of 9 years in the year 2005. The petitioner- respondent did not even avail the remedy under Section 18 of the Act by seeking reference from the Collector and accepted the compensation without demur. Therefore, there is no room left for the petitioner- respondent to claim the relief by directly approaching the High Court under Article 226 of the Constitution. The remedy available under Section 18 of the Act could not have been bye passed, particularly when Section 18 fixes maximum period of limitation of six months for seeking reference. 12. The delay in the present case also assumes significance for the reason that the claim has been made with regard to trees. The period of 9 years in filing the writ petition would cast reasonable doubt with regard to the identity of the trees and counting of trees other than those belonging to the petitioner-respondent. 12. The delay in the present case also assumes significance for the reason that the claim has been made with regard to trees. The period of 9 years in filing the writ petition would cast reasonable doubt with regard to the identity of the trees and counting of trees other than those belonging to the petitioner-respondent. Such a disputed question of fact could not have been resolved by issuing direction to the authorities to undertake the task of identifying the trees at such a belated stage. 13. It has also come on record that writ petitioner-respondent had accepted the compensation without raising any objection at the time of acceptance of compensation nor any objection has been filed at the time of any proceedings before taking compensation or possession under Section 16 and 17 respectively of the Act. Therefore, it appears to us that the petitioner- respondent was satisfied with the compensation as no reference was sought under Section 18 of the Act. He accepted the compensation without any demur. Reference could be sought only by those who have either refused to accept the compensation or have raised some dispute by filing a protest petition or by raising objection to the award. There is nothing on record to that effect, therefore, we are unable to proceed ourselves to accept the view taken by the learned writ Court. 14. As a sequel to above discussion, the appeal succeeds and the judgment and order dated 09.07.2013 passed by the learned Single Judge is set aside. However, in the peculiar facts and circumstances of this case, the parties are left to bear their own costs.