Research › Search › Judgment

Jharkhand High Court · body

2018 DIGILAW 1835 (JHR)

Karan Gope v. State Of Jharkhand

2018-08-13

ANUBHA RAWAT CHOUDHARY

body2018
JUDGMENT Anubha Rawat Choudhary, J. - Heard Mr. Vikash Kumar, counsel appearing for the petitioners. 2. Heard Mr. Ashish Kumar Thakur, counsel appearing for the respondent-State. 3. This writ petition has been filed for the following reliefs: "For issuance of appropriate writ(s)/order(s)/ and/or direction(s) to the respondents to make a reference under Section 18 of the Land Acquisition Act for determination of compensation of the house and residential building belonging to the petitioner and his family members against the rehabilitation programme and to the pay the petitioner alongwith the co-sharers, the full amount of compensation alongwith interest @ 18% with solatium @ 30% of the valuation from the date of publication of notification under Section 4 of Land Acquisition Act when the same was compulsory required under Land Acquisition Proceeding for construction of Swarnrekha Dam at Chandil." 4. Counsel for the petitioners submits that the father of the petitioners had filed a writ petition earlier which was numbered as W.P.(C) No. 738 of 2002 seeking a direction upon the respondents to determine the compensation for the petitioners and for issuance of Vikas Pustika. The writ petition was disposed of with a liberty to the petitioner''s father to approach the Special Land Acquisition Officer No. 2, Subarnarekha Multipurpose Project to determine the claim by a reasoned order and communicate the decision to the petitioner. 5. Counsel for the petitioners has referred to Annexure-8 bearing letter No. 487 dated 10.11.1990, wherein the counsel submits that in this letter, it has been mentioned that there was a house on the property recorded in the name of the father of the petitioners and similar recording was there in letter No. 857 dated 01.01.1993 sent by Special Land Acquisition Officer No. 2, Mango, Jamshedpur to Additional Director, Land Acquisition and Rehabilitation, Vikas Bhavan, Adityapur. 6. Counsel for the petitioners further submits that pursuant to the order passed by the Hon''ble High Court, the petitioners filed representation, but the authorities have not referred the dispute under Section 18 and have not even communicated the reasoned order to the petitioners. 7. Counsel appearing on behalf of the respondents submits that the father of the petitioners and others had received compensation in connection with the property and a petition was filed by the father of the petitioners on 07.03.2002 before the Special Land Acquisition Officer No. 1 for payment of compensation amount of the residential house. 7. Counsel appearing on behalf of the respondents submits that the father of the petitioners and others had received compensation in connection with the property and a petition was filed by the father of the petitioners on 07.03.2002 before the Special Land Acquisition Officer No. 1 for payment of compensation amount of the residential house. Thereafter, an enquiry report was submitted and it was found that there is no residential house entered in the plot register during the survey by the then Amin and surveyor and accordingly, the matter was not referred under Section 18 of the Land Acquisition Act, 1894. 8. Counsel for the respondents further submits that pursuant to the order passed in W.P.(C) No. 738 of 2002, an enquiry was done and it was found that there is no residential house on the property of the father of the petitioner. However, the reasoned order which was passed pursuant to order dated 25.01.2002 passed in W.P.(C) No. 738 of 2002 has not been filed alongwith the counter-affidavit. 9. Counsel for the respondents, while advancing his arguments, submits that the question of making a reference under Section 18 of the Land Acquisition Act, 1894 would arise only if the father of the petitioners had accepted the compensation under protest. By referring to Section 18 of the Land Acquisition Act, 1894, he submits that the pre-condition for making a reference under Section 18 is that the person interested should not have accepted the award, and accordingly, if a compensation is paid and is accepted without any protest, then there is no question of any reference under Section 18 of the Land Acquisition Act, 1894 as this would mean that the person has accepted the award. 10. Counsel for the respondents, further submits that the amount in this case has been paid to the father of the petitioners as back as in the year, 1989 and the period of limitation has also been provided for reference under Section 18 of the Land Acquisition Act, 1894. 11. After hearing the counsel for the parties and after considering the materials on record, this Court finds that as per the counter-affidavit, the father of the petitioners had received compensation as back as on 07.07.1989 and he had submitted a petition for payment of compensation of the residential house only on 07.03.2002. 12. 11. After hearing the counsel for the parties and after considering the materials on record, this Court finds that as per the counter-affidavit, the father of the petitioners had received compensation as back as on 07.07.1989 and he had submitted a petition for payment of compensation of the residential house only on 07.03.2002. 12. It is not clear from the records as to whether the father of the petitioners had received the compensation with or without protest, thereby indicating as to whether the award was acceptable to him or not. However, the fact remains that the father of the petitioners had filed writ petition being W.P.(C) No. 738 of 2002 seeking direction on the respondents to determine the compensation for the house and for issuance of Vikas Pustika. The said W.P.(C) No. 738 of 2002 was disposed of vide order dated 25.01.2002 and the Special Land Acquisition Officer No. 2 was directed to pass a reasoned order in connection with the claim of the petitioners. As per the counter-affidavit, the reasoned order has been passed but the reasoned order has not been filed along with the counter-affidavit. 13. In such circumstances, the Special Land Acquisition Officer No. 1 who is said to have passed the reasoned order, is directed to hand over a copy of the reasoned order to the petitioners within a period of one month from the date of receipt of a copy of this order along with an application for issuance of such order. 14. This Court is of the considered view that the question of making reference under Section 18 of the Land Acquisition Act, 1894 would arise only if the condition precedent as mentioned in Section 18 is satisfied. Section 18 of the Land Acquisition Act, 1894 clearly provides that 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 compensation, the persons to whom it is payable or the apportionment of the compensation amongst the persons who are interested. 15. 15. Therefore, the authority will have to examine as to whether the father of the petitioners had accepted the award under protest, and if so, the matter be referred under Section 18 of the Land Acquisition Act, 1894 subject to the law regarding limitation as may be applicable to Section 18 of the Land Acquisition Act, 1894. If the amount of compensation has been received by the father of the petitioners under protest, then appropriate order be passed by the concerned authority in connection with the prayer of the petitioners to refer the matter under Section 18 of the Land Acquisition Act, 1894. The decision be taken within a period of three months from the date of receipt of a copy of this order. 16. With the aforesaid observations and directions, this writ petition is disposed of.