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2019 DIGILAW 443 (JK)

Mst. Raja v. Collector Land Acquisition

2019-10-15

RASHID ALI DAR

body2019
Judgment Rashid Ali Dar, J.—By medium of instant motion, rectification of judgment and decree dated 01.07.2019, passed by this Court, is sought. 2. Mr. Reshi, learned counsel appearing for the applicants herein (claimants) has submitted that powers in terms of Section 152 read with Section 114 of the Code of Civil Procedure, are required to be exercised for rectification of the judgment and decree passed by this Court in terms of judgment/award of Principal District Judge, Anantnag, has been modified. It is his further submission that the law laid down in the judgments of Hon’ble Supreme Court reported in AIR 2016 SC 1565 and AIR 2004 SC 1904 , has not been taken into account properly. While clarifying it further, learned counsel has submitted that in the concluding para of the judgment and decree, the quantum of land needs to be specified for which acquisition proceedings had been concluded and compensation directed to be paid. According to him, proceedings had been initiated by the Collector for acquisition of 67.02 kanals while as award has been passed only with regard to land measuring 65 kanals 5 marlas situated at Khandipahri Tehsil Kulgam on the right side of Srinagar-Jammu National Highway at Khanabal Anantnag. It is further submitted by him that a direction is required to be passed to pay compensation less by amount of compensation what has already been directed to be paid. Similarly, with regard to Jabirana, clarification has to be added and 6% interest directed to be paid, has to be spelled to be paid annually, which has not been clearly specified in the concluding para of the judgment. 3. Among some further points raised by Mr. Reshi, the first point put forth is that Section 23(1) of the State Land Acquisition Act provides market value of the acquired land prevalent at the time of publication of declaration under Section 6 while as in Central Act same has reference to the notification issued under Section 4. It is further contended that in “Balwan Singh and others v. Land Acquisition Collector and another” ( AIR 2016 SC 1565 ), direction was passed to award additional interest by way of damages @ 15% per annum for the period between dispossession of the claimants till the notification under Section 4 was issued. It is further contended that in “Balwan Singh and others v. Land Acquisition Collector and another” ( AIR 2016 SC 1565 ), direction was passed to award additional interest by way of damages @ 15% per annum for the period between dispossession of the claimants till the notification under Section 4 was issued. It has already been noted in the judgment of the learned District Judge that the possession of requisitioned land was taken forcibly from the land owners at the instance of Union of India and the rate was fixed for payment of the rent which the land owners declined to accepted, and which, according to him, necessitated Defence Estates Officers to seek its formal acquisition. Declaration in terms of Section 6 had been issued on 6th of June, 1989 and final award thereafter passed on 09.11.1999. Mr. Reshi has also referred to the determination of issue No.1 and 2 along with issue No.3 by learned District Judge wherein there is an indication that rent at all was not paid from the date, possession was taken from the claimants of the land in question. Learned District Court also made an observation that the claimants are entitled to rent from 09.03.1978 to 9th April, 1999 in view of this factual position but so far as amount of fair rent and recovery of the same was concerned, a separate remedy was held by ld. District Judge is available to the claimants, which was observed, they could avail and have been left free to pursue the same. 4. It has also been submitted that the solatium/Jabirana 15% on the compensation determination for the acquired land is payable one time and not on yearly basis. It is also being submitted that no rent at all was paid and the decree to be formulated should incorporate the same and impose a direction on the Union of India to liquidate it by payment of damages as have been granted in Balwan Singh’s case. 5. On the other hand, Ms. Masooda, Sr. Panel Counsel, has brought on record a communication dated 30th September, 2019, addressed to her by Defence Estates officer, wherein it has been stated that the matter has been taken up with higher authorities in pursuance of judgment dated 1st July, 2019 for obtaining legal opinion and the Court be, accordingly, apprised. 5. On the other hand, Ms. Masooda, Sr. Panel Counsel, has brought on record a communication dated 30th September, 2019, addressed to her by Defence Estates officer, wherein it has been stated that the matter has been taken up with higher authorities in pursuance of judgment dated 1st July, 2019 for obtaining legal opinion and the Court be, accordingly, apprised. It is also her submission that the rent had been already paid for the period for which the claimants were entitled. 6. Considered the rival submissions. The cross appeals, out of which instant application arises, have been disposed of with the following conclusion:- “Having said so, the award impugned is modified. Claimants are held entitled for compensation of Rs.2.00 lac per kanal for the land acquired for the purpose mentioned above along with jabirana @ 15% from the date of award on the enhanced amount along with interest @ 6% on the enhanced amount and to be paid accordingly. They are also entitled to additional interest of 15% on the rent paid/payable from the date from which they were dispossessed pursuant to the requisition of the land in question till the notification under Section 4 was issued for acquisition.” 7. Specification of the total land for which the compensation at enhanced rate was to be processed, admittedly, has inadvertantly not been recited in the concluding para of the judgment dated 1st of July, 2019. In the judgment and decree/award passed by learned District Judge, Anantnag, on 09.07.2014, which had been assailed in the appeals, the particulars of the land had been quoted as: “65 kanals 5 marlas falling under Survey Nos.1181/(12 marlas), 1182 (14 kanals), 183 (5 kanals 1 marlas), 1184 (3 kanals 8 marals), 1185 (2 kanals 18 marals), 1186( 2 kanals 19 marlas), 1187(3 kanals 5 marals), 1188(1 kanal 7 marla), 1189(1 kanal 8 marlas), 1190(1 kanal 8 marals), 1191/A(7 kanals 2 marals), 1192 (2 kanals 8 marlas), 1193 (2 kanals 5 marlas), 1239 (3 kanals), 1240 (2 kanals 11 marals), 1241 (8 kanals 5 marlas) and 1242 ( 1 kanal 18 marlas) situated at Village Khandipahri Anantnag.” 8. It appears thus proper to have reference of the particulars of land which has been acquired so that the parties are properly able to understand the description of the land to which the judgment/decree pertains. 9. It appears thus proper to have reference of the particulars of land which has been acquired so that the parties are properly able to understand the description of the land to which the judgment/decree pertains. 9. In Balwan Singh’s judgment referred by learned counsel for the applicants herein, earlier judgment in “R. L. Jain (D) by Lrs. V. DDA & Ors.” ( AIR 2004 SC 1904 ), has been referred and it observed that land owner is not entitled to interest under the Act, however, land owner will be entitled to get rent or damages for use and occupation for the period the Government retained possession of the property. 10. In Madishetti Bala Ramul (dead) by Lrs. V. Land Acquisition Officer, reported in (2007) 9 SCC 650 , which also has been referred in Balwan Singh’s case, their Lordships did not deem it proper to remand the matter to the Collector to determine the amount of compensation to which the appellants therein would be entitled for the period for which they remained out of possession and hence directed additional interest @15% per annum on the amount awarded shall be paid between the date of dispossession and the date of notification under Section 4(1) of the Act. In Balwan Singh’s case, however, direction was passed to award additional interest by way of damages for the period of their dispossession till the notification was issued. 11. Taking into account the facts as noted above, I am of the opinion that there is a ground for rectification/modification of the judgment and decree dated 1st of July, 2019, passed by this the Court, para 21 of the judgment/decree dated 1st of July, 2019, shall be read as: “Having said so, the award impugned is modified. 11. Taking into account the facts as noted above, I am of the opinion that there is a ground for rectification/modification of the judgment and decree dated 1st of July, 2019, passed by this the Court, para 21 of the judgment/decree dated 1st of July, 2019, shall be read as: “Having said so, the award impugned is modified. Claimants are held entitled to compensation of Rs.2.00 lac per kanal for the acquired land measuring 65 kanals 5 marlas along falling under Survey Nos.1181/(12 marlas), 1182 (14 kanals), 183 (5 kanals 1 marlas), 1184 (3 kanals 8 marals), 1185 (2 kanals 18 marals), 1186( 2 kanals 19 marlas), 1187(3 kanals 5 marals), 1188(1 kanal 7 marla), 1189(1 kanal 8 marlas), 1190(1 kanal 8 marals), 1191/A(7 kanals 2 marals), 1192 (2 kanals 8 marlas), 1193 (2 kanals 5 marlas), 1239 (3 kanals), 1240 (2 kanals 11 marals), 1241 (8 kanals 5 marlas) and 1242 (1 kanal 18 marlas) situated at Village Khandipahri Anantnag, with 6% interest per annum and with Jabirana 15%. However, while calculating the enhanced amount, the amount already paid and received shall be deducted from the said amount. Additional interest of 15% per annum as damages on the compensation determined herein from 09.03.1978, the date the claimants were dispossessed till the date of declaration under Section 6 was issued, shall also be paid in favour of the claimants. Costs to be borne by Indenting Department-respondent No.2 in CFA No.185/2014” 12. CM is, accordingly, disposed of. This order shall form part of judgment/decree dated 1st of July, 2019. Decree sheet be prepared accordingly.