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2017 DIGILAW 667 (JK)

Ab. Qayoom Nizami v. Collector Land Acquisition

2017-08-18

JANAK RAJ KOTWAL

body2017
JUDGMENT : JANAK RAJ KOTWAL, J. 1. In this petition under Section 104 of the State Constitution, petitioner seeks quashing of order dated 24.05.2012 passed by the court of the learned District Judge, Ramban, whereby in a reference under Sections 18 and 31 of the Jammu and Kashmir Land Acquisition Act, Svt. 1990, (hereinafter to be referred as the Act) an amount of Rs. 38,10,640/- out of the amount of Rs. 51,51,540/-, which was deposited in that court by the Collector, has been released in favour of respondent No. 2. Heard Mr. P.N. Raina, learned Senior Advocate appearing on behalf of the petitioner and Mr. O.P. Thakur, Advocate, appearing on behalf of respondent No. 2 and perused the record. 2. Petitioner and respondent No. 2 are real brothers. 32 Kanals of land comprised in Khasra Nos. 727, 728, 731, 747 and 729 in village, Maitra, Govindpura, Tehsil, Ramban, has been acquired by the State Government for a public purpose. The copy of the letter of reference submitted by the Collector Land Acquisition to the District Judge, Ramban (Annexure-G) shows that as per the revenue record this land belongs to Mohd. Umar Nizami, herein respondent No. 2. On 12.06.2008, petitioner moved an application before the Collector stating that the acquired land was comprised in the land about which a partition suit is pending in the court of learned 2nd Additional District Judge, Jammu. On 22.07.2008, respondent No. 2 also made an application before the Collector stating inter alia that the acquired land is under dispute between the parties and that he is not satisfied with the award and is interested in the award being enhanced. In view of these two applications, the Collector made the reference to the learned District Judge under Sections 19 and 31 of the Act. The Collector also deposited in the reference court the aforementioned amount of Rs. 51,51,540/- as 80% compensation of the acquired land. The reference court by its order dated 01.04.2009 on the application of respondent No. 2 got this amount deposited in a fixed deposit in the name of the Court. 3. On 02.05.2012, the respondent No. 2 moved an application before the reference court seeking release of the deposited amount in his favour claiming that the acquired land belongs to him and was his only source of income. Learned reference court released Rs. 3. On 02.05.2012, the respondent No. 2 moved an application before the reference court seeking release of the deposited amount in his favour claiming that the acquired land belongs to him and was his only source of income. Learned reference court released Rs. 38,10,640/- in his favour vide the impugned order dated 04.05.2012 observing that "the amount falling in the share of the applicant as per the award can be released in favour of the applicant to the extent of his share and there will be no harm in it, subject to sufficient security." 4. Mr. P.N. Raina, learned Senior Advocate submitted that the award amount could not have been released in favour of respondent No. 2 since there is a dispute about apportionment of the award inasmuch as the acquired land is joint property of the petitioner and respondent No. 2 and a suit for partition is pending in the court of law. Learned Senior Advocate argued also that under Section 32 (2) of the Act in case of a dispute relating to apportionment of the amount of compensation, the Collector is required to deposit the amount in the court to which the reference is made and that the reference court has no jurisdiction to release the amount in favour of one of the contesting parties before deciding the question of apportionment. Learned Senior Advocate urged that the impugned order has been passed behind the back of the petitioner and violates the principles of Natural Justice. Taking me through the various interim orders passed by the learned reference court, the copies whereof have been produced, learned counsel sought to urge that the release of the amount has been ordered in haste on a date when the case was not listed for regular hearing. 5. Per contra, Mr. O.P. Thakur, learned counsel for the respondent, urged that the respondent No. 2 is the owner of the acquired land so no illegality has been committed by the learned reference court in releasing the amount of compensation in his favour. Learned counsel sought to make out that the reference as a matter of fact has been made under Section 18 of the Act on the basis of the application filed by respondent No. 2 seeking reference for enhancement of the compensation. Learned counsel sought to make out that the reference as a matter of fact has been made under Section 18 of the Act on the basis of the application filed by respondent No. 2 seeking reference for enhancement of the compensation. No request for making the reference was made by the petitioner and no such request could have been made because in view of the pendency of partition suit in the competent court, petitioner could not have sought adjudication on that point from two courts simultaneously. Learned counsel urged that the petitioner cannot be said to be a party to the reference before the learned reference court and was not required to be served with any notice in the application for release of the amount of compensation in favour of the owner of the land. Learned counsel relied upon Saraswati & Ors. v. Collector Land Acquisition, Bhaderwah & Ors. 1985 KLJ 275. 6. The plea taken raised on behalf of the respondent No. 2 that the reference to the District Judge is only the one under Section 18 of the Act for enhancement of the compensation on the application of respondent No. 2 and not one under Section 31 of the Act for apportionment of the compensation on the application of the petitioner, is without any substance, liable to be rejected straightway and does not deserve any discussion. It suffices to underline in the letter of reference (supra) by the Collector to the District Judge that the petitioner by his application dated 12.06.2008 had informed the Collector that the partition suit about the acquired land was pending in the court of law. Even the respondent No. 2 in his application dated 22.07.2008 had informed the Collector that the acquired land is under dispute between the parties, besides showing his dissatisfaction with the amount of compensation awarded to him. In face of these two applications, the Collector had made a reference in terms of Sections 18 and 31 of the Act. It, therefore, admits of no doubt that the reference was both for enhancement of compensation under Section 18 as well as apportionment of the compensation under Section 18 read with 31 and the petitioner is a party thereto. In face of these two applications, the Collector had made a reference in terms of Sections 18 and 31 of the Act. It, therefore, admits of no doubt that the reference was both for enhancement of compensation under Section 18 as well as apportionment of the compensation under Section 18 read with 31 and the petitioner is a party thereto. Such a plea as a matter of fact should not have been supported by the learned counsel for respondent No. 2 in view of the judgment dated 02.03.2012 rendered by this Court in the CTA No. 21/2009 filed by the petitioner in which the same counsel (Mr. O.P. Thakur, Advocate), appeared on behalf of herein respondent No. 2, who was respondent No. 2 in that transfer application also. Relevant observation of this Court in the first para of that judgment is extracted for ready reference: "The Collector Land Acquisition (ACR), Ramban has made a reference to the Principal District Judge, Ramban under Sections 18 and 31 of the Land Acquisition Act for enhancement of the compensation, if any, warranted under the facts and circumstances of the case and also apportionment of the share of the petitioner and respondent No. 2 in the compensation assessed by the Commissioner or enhanced by the Reference Court." 7. The circumstances in which the impugned order has been passed have been noticed. Orders in the file passed by the learned reference court from time to time, copies whereof have been produced, would show that after this Court judgment dated 02.03.2012 in the transfer application filed by the petitioner, the file was received in the reference court on 22.03.2012. Learned reference court ordered issuance of notice to the counsel for the parties and adjourned the case to 16.04.2012. None appeared on behalf of the parties on 16.04.2012 and the court adjourned the case to 28.04.2012 awaiting the parties. On 28.04.2012, two advocates seem to have filed vakalatnama on behalf of herein respondent No. 2 and the case was adjourned to 23.05.2012. On 23.05.2012, Mr. Arjun Singh, Advocate filed vakalatnama on behalf of herein petitioner and the case was adjourned to 03.07.2012. In the meantime, the application for release of the amount of compensation deposited by the Collector in the reference court came to be moved by respondent No. 2 on 02.05.2012. On 23.05.2012, Mr. Arjun Singh, Advocate filed vakalatnama on behalf of herein petitioner and the case was adjourned to 03.07.2012. In the meantime, the application for release of the amount of compensation deposited by the Collector in the reference court came to be moved by respondent No. 2 on 02.05.2012. On the same day, the court sought report from the Nazir and on 04.05.2012, learned Court passed the impugned order releasing Rs. 38,10,640/- in favour of respondent No. 2. It is, thus, clear that the application for release was moved by the respondent No. 2 on a day when the main case was not listed before the court and the order of release was passed without notice to the petitioner providing him opportunity of filing objections to the application again on a day when the main case was not listed. 8. The report, which would have been made by the Nazir in the application for release of the amount, is not available on the file. Reference to such a report, however, is contained in the impugned order. I cull out the relevant portion from the impugned order for ready reference: "As per office report in terms of Award, the applicant Mohd. Umar Nizami is to be awarded total amount of Rs. 47,63,300/- out of which 80% of it has been deposited by the Collector in this court, which was ordered to be kept in FDR No. 3197225, dated 29.04.2009. As per report the amount of the share of applicant to the tune of Rs. 38,10,640/- out of Rs. 51,51,540/- has been kept deposited in Ramban Branch of J&K Bank Ltd. The Bank is directed to make payment of Rs. 38,10,640/- along with interest to the applicant and rest of the amount, since has not been claimed to be released by the other claimant, the same shall be kept in FDR in the name of this court, renewable from time to time subject to further orders, so that no loss is suffered by the claimant." 9. A bare reading of the aforementioned portion of the impugned order would show that the office (Nazir) had in a way advised the District Judge (reference court) that total compensation payable to respondent No. 2 was Rs. 47,63,300/- and his share in the amount of Rs. 51,51,540/- deposited in that court was Rs. A bare reading of the aforementioned portion of the impugned order would show that the office (Nazir) had in a way advised the District Judge (reference court) that total compensation payable to respondent No. 2 was Rs. 47,63,300/- and his share in the amount of Rs. 51,51,540/- deposited in that court was Rs. 38,10,640/- and the learned Judge without recording his own finding in the matter ordered release of Rs. 38,10,640/- in favour of the respondent No. 2 and seems to have retained rest of the amount for "other claimant" seemingly the petitioner herein. 10. What is, thus, clear too is that the question of apportionment of the compensation for the purpose of release of the amount deposited in the reference court was decided by the "office" (Nazir) of the court and not by the Presiding Officer of the court. Such a course is patently illegal and unknown to law. Here it is important to point out that the question of apportionment of the compensation and respective shares of the parties is the subject matter of the reference and any order in regard to interim release of the amount deposited in the reference court should have been passed after hearing all the parties and the Presiding Officer should have recorded his opinion as regards the respective shares even at this stage. 11. For the aforementioned the impugned order, besides suffering patent illegality as pointed out above, violates the principles of Natural Justice for having been passed without hearing one of the two private parties (that is, herein petitioner) to the reference. The case law relied upon by the learned counsel for respondent No. 2 has no application in the fact situation of this case as, what is held in the said judgment is that no person can approach the reference court under Section 18 directly and has to make an application for reference to the Collector. Here as stated above, not only the respondent No. 2 had filed application before the Collector for making reference to the District Judge but application for reference for apportionment of the compensation was filed by the petitioner also. 12. Here as stated above, not only the respondent No. 2 had filed application before the Collector for making reference to the District Judge but application for reference for apportionment of the compensation was filed by the petitioner also. 12. In face of the patent illegality in the impugned order and the order having been passed without hearing the petitioner or providing him opportunity of being heard, the case is fit for showing indulgence in exercise of the supervisory power of this court under Section 104 of the State Constitution. 13. For all that said and discussed above, this petition is allowed and the impugned order is set aside. Respondent No. 2 is directed to deposit in the reference court the amount released in his favour immediately hereafter and not later than two weeks. The reference court shall decide the application for release of the amount afresh after providing all the parties opportunity of being heard. While passing any order for apportionment and release of the amount hereafter, the trial court shall take into account the amount of interest that would have accrued on the fixed deposit had the aforementioned amount not been released in favour of the respondent No. 2 from the date of its release to him up to the date of its deposit in the reference court, which shall be debited to the share of the respondent No. 2. Disposed of.