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2019 DIGILAW 1453 (JHR)

Jahiruddin Ansari @ Zahiruddin Ansari v. Agricultural Market Committee, Garhwa, through its Secretary Market Yard, Garhwa

2019-08-21

SUJIT NARAYAN PRASAD

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ORDER : 1. These writ petitions are under Article 227 of the Constitution of India, whereby and whereunder the order dated 22.09.2017 passed in Execution Case Nos.01 of 2013, 02 of 2013, 05 of 2013, 06 of 2013 and 07 of 2013, by which the objection filed by the petitioners with respect to the calculation made by the Seristedar about the calculation of amount to be paid in favour of the petitioners, have been rejected. 2. The issues have gone before the Civil Court wherein the judgment has been passed on 29.09.2012 by the Civil Judge (Sr. Division), Garhwa (annexure-1) by passing the judgment holding therein that the quantum of amount of compensation as has been assessed by the land acquisition authority has not found to be just and proper and as such, the same has been enhanced as would appear from para-25 and 27 of the said award which reads as hereunder:- “25. Considering the sale-Deeds and other evidences relied by the applicants, i.e. Ext. 3 Valuation Report prepared by Special Land Acquisition Officer, Patna and regard being had to the finding of Hon’ble Patna High Court, Ranchi Bench, Ranchi given in para-4 of the judgment dated 14.10.1999 passed in Appeal from original decree No.-146 of 1988 (R) which is binding upon this Court (as per doctrine of precedent) I find and hold that the Market Value of the acquired land which is situated just adjacent to the Garhwa-Manjhiawn P.W.D. Road at a distance up to 200 feet should be @ Rs.1,000/-per Decimal (Rupees one lakh per Acre) and Rs.800/-per decimal (Rupees Eighty thousand per acre) for rest land and accordingly, I find and hold that the market value determined by the Special Land Acquisition Officer, Marketing Board, Patna with regard to acquired land of the applicant was not just, proper and adequate and hence I determine that the market value of the acquired land shall be @ Rs.1,000/-(Rupees one thousand) per decimal (Rupees one lakh per acre) and Rs.800/-(Rupees eight hundred) per decimal (Rupees eighty thousand per acre) with regard to the lands of the applicants according to the extent of the situation on the basis of distance of the existence from Garhwa-Manjhiawn Road. Market value of the land @ Rs.1,000/-per decimal shall be for those land which are situated up to the distance of 200/-feet from Garhwa-Manjhiawn Road and for the rest land it shall be @ Rs.800/-per decimal. 27. Issue No.7:-It has been found and held above that the Market value of the land acquired has been determined at a low rate and the same has been enhanced as observed above. In L.A. Case No.166/78 of 1979 the lands of applicants were found to be at a distance of more than 200 feet from the road side and, therefore, amount of compensation was determined @ 12,675/-per acre but the applicants are entitled to get the amount of compensation @ 80,000/-per acre (@ Rs.800/-per decimal) Case of the applicants of L.A. Case No.159/72 of 1979, L.A. Case No.163/76 of 1979, L.A. Case No.164/76 of 1979 and L.A. Case No.64/147 of 1979 stand on same footing as that of L.A. Case No.166/78 of 1979 because land acquired in all these cases has been found to be situated at a distance of more than 200 feet from Garhwa-Manjhiawn P.W.D. Road and as such the applicants of aforementioned L.A. Cases are entitled to get compensation @ Rs.800/-per Decimal (@ Rs.80,000/-Rupees Eighty Thousand) per acre for their respective lands which find mentioned in their references respectively. In case of L.A. Case No.65/148 of 1979 the applicant shall be entitle to get compensation @ Rs.10,0000/-(Rupees one lakh) per acre (@ Rs.1,000/-) per decimal with regard to the land covered in Plot No.539, Area 0.44 acre and Plot No.663, Area 0.50 Acre under Khata No.22 because their lands are situated within 200 feet from Garhwa-Manjhiawn P.W.D. Road and he shall be entitled to get compensation @ Rs.80,000/-per acre (@ Rs.800/-per Decimal) with regard to the rest of his lands which have been acquired.” 3. The judgment passed by the competent court of civil jurisdiction, therefore, the land loosers/petitioners have filed execution cases. The judgment passed by the competent court of civil jurisdiction, therefore, the land loosers/petitioners have filed execution cases. In the meanwhile, being aggrieved with the said award, the respondent no.1-Agricultural Market Committee, Garhwa, has preferred first appeal but the same was dismissed vide judgment dated 28.01.2014 against which the letters patent appeal has been preferred which has also been dismissed as not maintainable with a liberty to the appellant to challenge the judgment in accordance with law, in pursuance to the said liberty, the civil appeals have been filed before the Hon’ble Supreme Court of India, which were heard and allowed to the extent of some modification vide judgment dated 24.11.2014 to the effect that the payment of statutory benefits to the respondents during the period when their case remained has dismissed for default. The actual payment of compensation amount would not carry out the interest for the same period. The respondent no.1 subsequent thereto has filed an interlocutory application for clarification/modification of order but the same was also dismissed vide order dated 10.04.2017. Thereafter, the execution cases have proceeded and executing court has passed an order on 08.10.2015 by making a base for calculation with a direction to calculate the amount payable, considering the base decided in the order dated 08.10.2015 based upon the judgment dated 29.09.2012 passed in L.A. reference cases with a direction upon the Seristedar to calculate the amount, in pursuance therto, the Seristedar has calculated the amount and submitted the same before the executing Court but the same has been objected by the petitioners by filing a petition along with the calculation chart duly been prepared by one chartered accountant but the same has been rejected, against which, these writ petitions have been filed. 4. Mr. Sachin Kumar, learned counsel for the petitioner, has submitted that the executing court has committed gross error in rejecting the said objection on the ground that the calculation made by the Seristedar is not based upon the record as would appear from the calculation prepared by the concerned chartered accountant which is the part of the objection but the same has not properly been appreciated by the executing court, therefore, the orders impugned are not sustainable in the eye of law, as such, the same need interference by this Court under Article 227 of the Constitution of India. 5. Mr. 5. Mr. Prashant Pallav, learned G.A.-IV appearing for the State of Jharkhand, has raised the issue of maintainability of petition under Article 227 of the Constitution of India on the ground that the execution cases since been closed as would appear from the impugned order, wherein it reflects that office to deposit the record in the record room, this signifies that the execution proceeding has came to be closed and since the order is not interlocutory in nature, as such, not the writ petition rather the revision will lie. His further submission is that whatever base of calculation has been made, the calculation has been prepared by the Seristedar and it is not the case of the petitioner that the Seristedar has not in any way deviated from the said base since nothing has averred in the objection petition as would appear from his objection petition as contained under annexure-11 (page-118) to the brief. Accordingly, he submits that the writ petitions are not worth to be considered. 6. Dr. Ashok Kumar Singh, learned counsel has put his appearance to represent Agricultural Market Committee who on strength of the counter affidavit has submitted by making reference of stand taken by them more particularly at paragraph 7 and 10, wherein stand has been taken that the land acquisition reference court and the amount of compensation mentioned in the award, if the petitioner is aggrieved, he should have filed an appeal before the appropriate Forum but no such appeal has been filed and further, the Seristedar has calculated the entire amount on the basis of the order dated 08.10.2015 based upon the judgment dated 29.09.2012 passed in L.A. Reference Cases and therefore, the executing court since is to see the execution of the order/judgment passed by the original court and the same has not to be deviated with and hence since the petitioners are taking an issue based upon the report submitted by chartered accountant and if that would be accepted, it would be an un-ending process since the report will vary from mind to mind. 7. In view of such submission, it has been submitted that the writ petitions may be dismissed. 8. 7. In view of such submission, it has been submitted that the writ petitions may be dismissed. 8. Having heard the learned counsel for the parties and on appreciation of their rival submissions as also by going through the finding recorded in the impugned order, this Court has gathered therefrom that the certain lands in questions have been acquired by the State which is the subject matter of the acquisition proceedings which ultimately culminated on reference as L.A. proceeding before the principal Judge having its jurisdiction as per the provision under Section 28 of the Land Acquisition Act, 1894. The judgment has been passed on 29.09.2012, as has been referred hereinabove, the paragraph 25 and 27 of the said judgment by which, the competent court of civil jurisdiction has came to conclusive finding that the award passed by the land acquisition authority, is not just and proper. The award passed by the competent court of civil jurisdiction has travelled from first appellate court, thereafter gone to letters patent appeal but the letters patent appeal being not maintainable has been withdrawn with a liberty to challenge the award before the appropriate Forum and that is why the matter went before the Hon’ble Supreme Court but the Hon’ble Supreme Court has also declined to interfere with, save and except some modification about the period for which the case was dismissed for non-prosecution. The awardees have filed execution cases which has proceeded and the executing court has passed an order on 08.10.2015 making out a base for calculation of the amount and since the orders impugned make a reference of order dated 08.10.2015, as such, it needs to refer the said order for ready reference which reads as hereunder:- “The instant execution case arises out of judgment dated 29.09.2012 passed in L.A. Reference Case No.159/72/148 of 1979 along with six other analogous cases. Prior to disposal of the instant execution case, the only matter which needs adjudication is regarding the actual amount payable to the decree holder. To arrive out of the said amount payable to the decree holder by the Judgment Debtor the Predecessor Presiding Officer by the order dated 04.07.2015 has given opportunity to the defendant/judgment debtor to file calculation chart. In compliance of the said order the decree holder as well as judgment debtor both have submitted their calculation charts which are available on the record of the case. In compliance of the said order the decree holder as well as judgment debtor both have submitted their calculation charts which are available on the record of the case. The original L.A. Ref. case after its disposal by the above referred judgment and decree has traveled up to the Hon’ble Supreme Court in the channel of the appeals and even up to the Hon’ble Apex Court the judgment and decree passed by this court was upheld with a minor modification that the decree holder/applicants shall not be entitled for any statutory benefits from the date, the suit was dismissed for default till the date, the application for restoration of the records was filed. The exact wordings of the Hon’ble Apex Court deserves to be extracted here to avoid any ambiguity. “Having regard to the facts and circumstance of the case, we are of the view that the ends of justice would be met in case some modification is made in the order impugned to the extent that the respondents will not be entitled to any statutory benefits from the date of the dismissal of the cases by the Reference Court till the date of filing of applications for restoration. Impugned orders are modified accordingly”. There is no interference or modification in the judgment and award except as reproduced herein above and thus the relevant dates for calculation of the compensation and interest granted thereupon are very relevant which needs to be taken down to avoid any ambiguity and confusion in calculation of the amount payable under the award and for the ends of justice. The instant reference was filed on 20.08.1979 prior to which the notice u/s 4(1) was given and published on 16.06.1977 and the possession of the land in question was taken on 14.09.1977 and thus the reliefs granted u/s 23(1A) applicable @ 12% being the statutory relief is payable only for the period of ninety days, as per the dates mentioned above. Apart from that statutory interest on the compensation has been provided @ 9% for one year from the date of taking possession and subsequent to the conclusion of one year till date of payment, it has been awarded @ 15 %. This interest @ 15% starts from 14.09.1978 and is payable up to 26.03.1981, when the reference was dismissed for default. This interest @ 15% starts from 14.09.1978 and is payable up to 26.03.1981, when the reference was dismissed for default. The calculation of dates reveal that the reference was pending for 924 days and again as per the order of the Hon’ble Supreme Court and as apparent from the order passed by the Hon’ble High Court in Civil Revision no.392 to 398 of 1998 (R), the application for restoration was filed on 9.09.1983 and hence interest @ 15 % is payable from 9.09.1983 till the date of payment. To some up no statutory benefits shall be payable from 26.03.1981 to 09.09.1983 including the interest pendentelite granted by the above referred judgment to his Court i.e. for aggregate of 897 days, no interest or other statutory benefits are payable to the applicants. The Seristedar is directed to calculate amount of payable considering the above base, with calculation of interest till today. Put up on 16.10.2015 for Seristedar report.” The Seristedar in pursuance to the order dated 08.10.2015 has calculated the amount and submitted it before the competent court and at that juncture, objection has been filed by the petitioners, while the petition has been filed by enclosing the calculation of the chartered accountant. 9. This Court, after going across the contents of the objection filed by the petitioners against the calculation made by the Seristedar has found that the objection with respect to the calculation made by the Seristedar, has been made. The same has been rejected vide impugned orders against which, these writ petitions. 10. It transpires from the impugned order that the executing court has taken consideration of the order dated 08.10.2015 by holding therein that the base has been prepared by the executing Court on 08.10.2015, basis upon which, the Seristedar has been directed to calculate the amount with calculation of the interest but the order dated 08.10.2015 has never been challenged by the petitioners. 11. 11. This Court, therefore, is of the view and admittedly the order dated 08.10.2015 has not been challenged by the petitioners, therefore, it is only to be seen by this Court in exercise of jurisdiction conferred under Article 227 of the Constitution of India which confers power in the nature of revision to look into the contents of the objections and to appreciate it by going across the finding and if it would be found that the calculation is not based upon the base as has been ordered/directed in the order dated 08.10.2015 then what has been contended by the petitioner can be said to be correct. 12. This Court, after going across the petition filed for objection to the calculation made by the Seristedar has found no such averment as has been made by the petitioner that the calculation of Seristedar, is in deviation of the base ordered/directed in the order dated 08.10.2015 for ready reference the contents of the objection petition is being reflected hereinbelow:- “1. That the J/Dr. has filed a petition alongwith D/D in favour of the D/Hr. by claiming that entire amount of award has been paid. The statement of the J/Dr. is quite false and baseless and mis interpretation of the order of the Hon’ble Apex Court. 2. That the D/Hr. has filed revised calculation chart of the amount of award as per modified order of the Hon’ble Supreme Court. 3. That the modified calculation chart has already been filed on behalf of the D/Hr. in this execution proceeding. It is, therefore, prayed that Your Honour be pleased to direct the J/Dr. to pay the amount of award as per calculation chart submitted by the D/Hr. by rejecting the petition of the J/Dr. AND/Or Pass any such order which the learned court deems fit & proper. And For which the D/Hr. shall ever pray.” 13. in this execution proceeding. It is, therefore, prayed that Your Honour be pleased to direct the J/Dr. to pay the amount of award as per calculation chart submitted by the D/Hr. by rejecting the petition of the J/Dr. AND/Or Pass any such order which the learned court deems fit & proper. And For which the D/Hr. shall ever pray.” 13. It can be said to be a case in favour of the petitioner if the Seristedar would have calculated the amount deviating from the base as has been reflected and quoted hereinabove but since it is not the case of the petitioners rather they are relying upon the reports submitted by their own chartered accountant and as such the report of the chartered accountant if accepted by treating it as an objection, it will amount to review of the judicial orders passed by the executing court on 08.10.2015, which would not be proper for this Court and the same cannot be done by the High Court sitting under Article 227 of the Constitution of India since the said order has never been assailed by the petitioners which was passed way back on 08.10.2015. 14. The executing court, after taking the said fact into consideration, has come out with the finding that the objection cannot be considered since the order dated 08.10.2015 has never been challenged and therefore, there is no question of assailing the calculation of the Seristedar. It also appears from the impugned orders that the execution proceeding has finally been closed since the record has been directed to be submitted to the record room. Further question here would be that the power of revision is to be exercised by the High Court sitting under Article 227 of the Constitution of India against an order which is interlocutory in nature and if the order attained its finality after conclusion of the proceeding that will beyond the scope of Article 227 of the Constitution of India under its revisory jurisdiction. 15. Since the power of 227 of the Constitution of India under its revisory jurisdiction has been invoked, this Court is of the view that since the execution case has already been concluded and the said order has attained its finality, therefore, on that ground also these writ petitions cannot be entertained. 16. 15. Since the power of 227 of the Constitution of India under its revisory jurisdiction has been invoked, this Court is of the view that since the execution case has already been concluded and the said order has attained its finality, therefore, on that ground also these writ petitions cannot be entertained. 16. This Court, therefore, is of the view in the entirety of the facts and circumstances as narrated hereinabove that the contention raised by the petitioners are not worth to be considered, accordingly, finding recorded by the executing court in the aforesaid orders need no interference under Article 227 of the Constitution of India. 17. In view thereof, the writ petitions fail and are accordingly, dismissed.