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2014 DIGILAW 860 (JHR)

Peter Khalkho v. Union of India

2014-08-11

R.R.PRASAD

body2014
ORDER Since both the Writ Petitions arise out of the same matter, both are heard and being disposed of, by this common order. 2. Heard learned counsel appearing for the petitioners and learned counsel appearing for the Respondent-Union of India. 3. In the year 1942, the land of five villages, namely, Khijri, Sidrol, Kutiyatu, Lodma and Tumbagutu had been requisitioned for the purpose of its use by the military. Subsequently in the year 1986-87 lands of those five villages were sought to be acquired under the provisions of Requisitioning and Acquisition of Immovable Property Act, 1952. 4. Upon initiation of process of acquisition, notice of acquisition was issued in the year 1986. In the year 1989, the Deputy Commissioner assessed the value of the land and then determined it. On such assessment and determination, when it was found by the villagers that it is too low, they filed a Writ Petition being W.P.[C] No.1386 of 1989 [R] before this Court. That was disposed of, on 1.11.1989 directing the Deputy Commissioner to pass an order after complying the provision as is there under Section 7 (1) of the Act. When order was not passed by the Deputy Commissioner, within the time as stipulated by the Court, a Contempt Petition being M.J.C. Case No.37 of 1992 [R] was filed. 5. While the matter was pending, the Deputy Commissioner passed an order rejecting the claim of each of the petitioners. Thereupon, the petitioners received the amount of compensation, but under protest. 6. Now after about 25 years, the petitioners have moved to this Court with a prayer to direct the Government of India to appoint an Arbitrator as no agreement had been executed in between the Collector and the persons whose land had been acquired. 7. According to learned counsel appearing for the petitioners though have come after 25 years of the order passed by the Deputy Commissioner, but the application cannot be thrown on that ground for the reason that when admittedly no agreement has been executed between the persons whose land had been acquired and the Deputy Commissioner, the matter should have automatically been referred to the Arbitrator by the Deputy Commissioner instead of waiting for the petitioner to come with an order passed by this Court. 8. 8. Further it was pointed out that under these circumstances, some of the persons had moved in the year 1996, 1998, 2001 and also in the year 2011 and this Court keeping in view the provisions of the Act, did interfere in the matter and passed the order for appointment of an Arbitrator. In that event, this is a fit case where a direction can be issued for appointment of an Arbitrator. 9. Mr. Khan, learned counsel appearing for the Respondent-Union of India by referring to the statement made in the counter-affidavit submits that after the order was passed by the Deputy Commissioner in the year 1992, the petitioners in terms of the provision as contained in Rule 9(3) read with Rule 9(6) of the 'Requisitioning of Acquisition of Immovable Property Rules, 1953 should have approached the Collector within 15 days of the offer being made for showing his declination to accept offer. Only in that event, the provision as contained in Section 8(1) (b) of the Act could have resorted to. 10. Further, it was submitted that only 9 persons had come forward after receiving the offer and under the circumstances, the petitioners do not deserve any relief sought for, in this Writ Petition. 11. Having heard, learned counsel appearing for the parties, it does appear that it had been admitted position that lands of five villages were requisitioned in the year 1942 and then in the year 1986-1987, process of requisition was started whereby notices were given to the persons affected and then quantum of compensation was determined. However, being aggrieved with the quantum, some of the persons seem to have moved to this Court by filing Writ Petition which was disposed of, directing the Deputy Commissioner, Ranchi to take decision in accordance with the provision contained in Section 7(1) of the Act. That was decided in the year 1992. Thereafter the petitioners did receive the amount of compensation, but under protest and now after 24 years, the petitioners have moved to this Court for a direction to the authorities to appoint an Arbitrator for determining the amount of just and proper compensation. 12. That was decided in the year 1992. Thereafter the petitioners did receive the amount of compensation, but under protest and now after 24 years, the petitioners have moved to this Court for a direction to the authorities to appoint an Arbitrator for determining the amount of just and proper compensation. 12. This prayer has been objected on behalf of the Respondent-Union of India by referring Rule 3 read with Rule 6 by taking a plea that if the person within the 15 days of the receipt of the offer, would have made objection, the authority should have resorted to the provisions as contained in Section 8(1)(b) of the Act. 13. In the context of the objection, one needs to take notice as contained in Section 8 of the Act, which reads as follows : “8. 13. In the context of the objection, one needs to take notice as contained in Section 8 of the Act, which reads as follows : “8. Principles and method of determining compensation :- (1) Where any property is requisitioned or acquired under this Act, there shall be paid compensation the amount of which shall be determined in the manner and in accordance with the principles hereinafter set out, that is to say- (a)Where the amount of compensation can be fixed by the agreement, it shall be paid in accordance with such agreement; (b) Where no such agreement can be reached, the Central Government shall appoint as arbitrator a person who is, or has been, or is qualified for appointment as, a Judge of a High Court; (c) the Central 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 purposes; (d) at the commencement of the proceedings before the arbitrator, the Central Government and the person to be compensated shall state what in their respective opinions is a fair amount of compensation; (e) the arbitrator shall, after hearing the dispute, make an award determining the amount of compensation which appears to him to be just and specifying the person or persons to whom such compensation shall be paid, and in making the award, he shall have regard to the circumstances of each case and the provisions of sub-Sections (2) and (3), so far as they are applicable; (f) where there is any dispute as to the person or persons who are entitled to the compensation the arbitrator shall decide such dispute and if the arbitrator finds that more persons than one are entitled to compensation, he shall apportion the amount thereof amongst such persons; (g) nothing in the Arbitration Act, 1940 (X of 1940) shall apply to arbitrations under this section; 14. From the perusal of the said provisions, it does appear that when the property is acquired, the amount of compensation is determined where the amount of compensation is fixed with the agreement of the parties, it is paid to the persons affected, but where parties do not reach to the agreement relating to the compensation, an Arbitrator needs to be appointed. The parties reached to the agreement or did not reach to the agreement that can be ascertained from the conduct of the parties apart from the recourse which has been laid down in sub rule (6) of Rule 9 of the Rules. The said sub rule (6) of rule 9 reads as follows :- “9.Compensation, - (6) If any person to whom an offer is made under sub-rule (3) does not accept the offer or does not within fifteen days of the receipt of the offer communicate in writing to the competent authority his acceptance or otherwise of the offer, the competent authority shall, as soon as may be, submit to the Central Government a report setting forth the full facts of the case particularly as regards the nature and extent of disagreement between himself on the one hand and the said person the other hand and he shall also forward with the report all connected papers. The competent authority shall at the same time deposit in court the amount offered by him to the said person under sub-rule (3). 15. From perusal of sub rule (6) of Rule 9 of the Rules, it does appear that if the offer made under sub rule (3) is not accepted within 15 days of the receipt of the offer, communicated in writing, the competent authority is required to submit its report to the Central Government setting-forth the full fact of the case as regards the nature, extent of disagreement between himself on the one hand and the said persons on the other hand and shall forward with a report with all connected papers. 16. Admittedly, the petitioners when were dissatisfied with the amount determined, they filed Writ application which was disposed of, by directing the authority to pass oder in accordance with the provision contained in Section 7(1) of the Act. When the order was passed, the petitioners received the amount of compensation with protest then disagreement over the amount of compensation was apparent. In such event, the authority should have referred the matter before the Central Government as has been prescribed under sub rule (6) of Rule 9 of the Rules. 17. When the order was passed, the petitioners received the amount of compensation with protest then disagreement over the amount of compensation was apparent. In such event, the authority should have referred the matter before the Central Government as has been prescribed under sub rule (6) of Rule 9 of the Rules. 17. Under the circumstances, it becomes desirable to direct the authority to take the recourse of the provision relating to appointment of an Arbitrator within two months from the date of receipt of a copy of the order for determination of just and proper compensation. 18. With this observation and direction, both the Writ Petitions stand disposed of.