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2018 DIGILAW 52 (JK)

Sudesh Kumar v. State

2018-02-02

ALOK ARADHE

body2018
JUDGMENT : The petition is admitted for hearing. 2. With the consent of the learned counsel for the parties, the matter is heard finally. 3. In this petition, the petitioners, inter alia, seek following reliefs: “A petition under Articles 226 and 227 of the Constitution of India read with Sections 103 and 104 of the Constitution of Jammu and Kashmir for the issue of an appropriate, direction or order quashing the final award bearing No.Nil dated 1.8.2006 whereby the land measuring 66 Kanals 2 Marlas and 6 Sarsai underlying different Khasra Numbers mentioned therein has been ordered to be acquired as unconstitutional, illegal and without jurisdiction inasmuch as the same has been made after two years from the date of declaration issued under the Land Acquisition Act and all other subsequent orders passed by the authorities with reference to the said award. In the alternative quashing the judgment and order dated 30.04.2016 passed by the respondent No.5 in application No.006/Misc whereby the claim of the petitioners for payment of enhanced amount has been rejected.” 4. Facts giving rise to the filing of the present petition briefly stated are that the petitioners are residents of Village Jakhani Tehsil and District Udhampur. And are owners of land admeasuring 66 Kanals 2 Marlas and 6 Sarsai. A Notification under Section 4(1) of the Land Acquisition Act, 1997 was issued by respondent No.3-Collector Land Acquisition (Assistant Commissioner, Revenue), Udhampur, on 01.10.1999, whereby land admeasuring 41 Kanals 01 Marla comprising different Khasra numbers mentioned therein was notified for public purpose for the construction of bye pass road at Village Jakhani, Tehsil Udhampur. Subsequently out of the aforesaid land, land measuring 28 Kanals 10 Marlas was de-notified and vide notification dated 28.07.2003, additional land measuring 53 Kanals 11 Marlas and 6 Sarsai was notified for the said purpose. Thereafter vide notification dated 29.09.2003 issued under Section 6 of the Land Acquisition Act, the declaration was made that the land measuring 53 Kanals 11 Marlas and 6 Sarsai was needed for the public purpose. Subsequently, notification under Section 9 and 9-A of the Land Acquisition Act was issued with reference to notification issued under Section 6 of the said Act. The award was passed on 01.08.2006, i.e. after more than 2 years and 11 months from the date of declaration. Subsequently, notification under Section 9 and 9-A of the Land Acquisition Act was issued with reference to notification issued under Section 6 of the said Act. The award was passed on 01.08.2006, i.e. after more than 2 years and 11 months from the date of declaration. The petitioners are co-owners of the land in question and some of the co-owners have filed application before respondent No.2 under Section 18 of the Land Acquisition Act for making the reference to the learned District Judge, Udhampur, for enhancement/determination of fair amount of compensation of the land. The respondent No.2 on 12.07.2007 made a reference to the learned Principal District Judge, udhampur, who in turn transferred the same to the learned Additional District Judge, Udhampur. The learned Additional District Judge, Udhampur, passed an award dated 26.10.2013, by which the compensation has been enhanced to Rs.5.75 Las per Kanal with 15% Jabrana and house @ Rs.400 per Sqft. along with cost and interest. The indenting department had deposited the enhanced amount with the learned Additional District Judge, Udhampur, in respect of the entire land measuring 66 Kanals 2 Marlas and 6 Sarsai. Thereafter application seeking release of amount of enhanced compensation was made. However, the aforesaid application was rejected by the Additional District Judge, Udhampur, vide judgment dated 23.04.2016 on the ground that the petitioners were not signatory of the application under Section 18 of the Land Acquisition Act. In the aforesaid factual background, the petitioners approached this Court. 5. When the matter was taken up today, learned counsel for the petitioners submitted that the impugned order suffers from patent illegality. It is further submitted that the property in question is a joint family property and is not subject to partition. In support of his submission, learned counsel for the petitioners placed reliance on the decision of the Supreme Court in the case of A. Viswanatha Pillai & Ors. vs. Special Tehsildar for Land Acquisition No.IV & Ors., AIR 91 SC 1966. On the other hand, learned Deputy Advocate General opposed the prayer of the petitioners and supported the impugned order. In support of his submission, he has placed reliance on the decision of the Supreme Court in the cases of Smt. Ambey Devi vs. State of Bihar & Anr., AIR 1996 SC 1513 , and Mst. Sarswati & Ors. vs. Collector, Land Acquisition, Bhadarwah & Ors. 1986 AIR (J&K) 95. 6. In support of his submission, he has placed reliance on the decision of the Supreme Court in the cases of Smt. Ambey Devi vs. State of Bihar & Anr., AIR 1996 SC 1513 , and Mst. Sarswati & Ors. vs. Collector, Land Acquisition, Bhadarwah & Ors. 1986 AIR (J&K) 95. 6. I have considered the submissions made by the learned counsel for the parties and have perused the record. There is no material on record to show that the land in question was subjected to partition. The petitioners are co-owners. The Supreme Court in the case of Smt. Ambey Devi vs. State of Bihar & Anr. (supra) has held that where one of the co-owners of acquired land filing reference in respect of his share only and getting his compensation enhanced and the other co-owners have not filed reference, they cannot seek enhancement of compensation of their share on the basis of reference by other co-owners. Similar view has been taken in the remaining cases relied upon by the learned Additional Advocate General. In the instant case, as stated supra, the land has not been subjected to partition and from perusal of the application under Section 18 of the Land Acquisition Act, which has been enclosed as Annexure-G, it is evident that the relief in the following terms has been prayed for by the co-owners of the land in question:- “It is, therefore, prayed that their case of acquisition may kindly be referred to the District Judge, Udhampur under Section 18 of the Acquisition Act for determing the real prevailing market rate of the land acquired and awarding the same to the applicants.” 7. It is evidence that the co-owners of the land have not confined the relief for payment of enhancement of compensation in respect of their share only but have prayed for enhancement of amount of compensation in respect of the entire land. However, the Additional District Judge, Udhampur, has failed to take note of the aforesaid fact of the matter. The order impugned is error on the face of record. In the result, the petition is allowed and the Additional District Judge, Udhampur, is directed to decide the application preferred by the petitioners in accordance with law by a speaking order. 8. With the aforesaid directions, the petition is disposed of alongwith connected MP.