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2021 DIGILAW 266 (HP)

Sadiq Mohd v. Land Acquisition

2021-04-27

JYOTSNA REWAL DUA

body2021
JUDGMENT : Jyotsna Rewal Dua, J. An application filed by the plaintiff under Order 39 Rule 1 and 2 of the Code of Civil Procedure seeking to restrain respondent No.1/Land Acquisition Officer (NHAI) from releasing entire compensation amount in lieu of acquired structure in favour of respondent No.2 has been dismissed by learned Additional District Judge Sundarnagar, District Mandi, H.P. Aggrieved, instant appeal has been preferred by the plaintiff. 2(i) Respondent No.1 acquired land comprised in Khasra No. 457 measuring 000910 bighas, situated in Mohal Thala, Tehsil Sundernagar, District Mandi, H.P., for Four Laning of the National Highway. Award in lieu of acquisition of this land was passed by respondent No.1 on 2.5.2016. Appellant and respondent No.2, were held entitled to the awarded amount in equal shares. Both of them have admittedly received their shares in the awarded amount. 2(ii) The award for the acquisition of structure standing over the land was separately announced on 27.1.2017. Rs. 59,04,719/was determined as compensation payable for the house/structure standing over the land. Respondent No.1 proceeded to pay the compensation in lieu of structure in favour of respondent No.2 in view of his alleged possession of the acquired structure. This was objected by appellant on the ground that he and respondent No.2 had jointly purchased the land and the structure, therefore, both of them are entitled to half share each in the compensation amount awarded not only for the acquired land but for the acquired structure as well. 2(iii) The plaintiff/appellant filed a civil suit for Permanent Prohibitory and Mandatory Injunction under Sections 37, 38 and 39 of the Specific Relief Act before the learned District Judge Mandi on 26.05.2018. Relief clause of the plaint runs as under: “It is, therefore respectfully prayed that a decree for permanent prohibitory injunction be also passed against the defendant No.1 not to release the whole amount of compensation pertaining to house in favour of defendant No.2 in any manner whatsoever, that a decree of mandatory injunction may also be passed in favour of the plaintiff and against the defendants by directing them to pay the 50% of the total compensation amount alongwith the interest to the plaintiff without and demur or any other relief which this Ld. Court deems fit under the circumstances of the case may also be granted in favour of the plaintiff and against the defendants in the interest of justice.” Alongwith the plaint, an application under Order 39 Rule 1 & 2 read with Section 151 of the Code of Civil Procedure was also filed praying to restrain respondent No.1 from releasing the entire compensation of the structure in favour of respondent No.2 till the final disposal of the suit. 2(iv) Respondent No.2 in his reply to the application under Order 39 Rule 1 & 2 disputed the entitlement of the appellant for receiving the compensation amount, be it for land or for structure. His case was that the land and the house standing on it were in exclusive ownership and possession of respondent No.2. It was further pleaded that the appellant had given up his share over the land and structure in question in favour of respondent No.2 in lieu of share of respondent No.2 in another land and structure situated in Sundernagar, District Mandi. Respondent No.1 in its separate reply filed to the application admitted that a dispute had arisen between the appellant and respondent No.2 with respect to release of the compensation amount in lieu of acquisition of the structure standing over the land. The stand taken by respondent No.1 was that in view of the objections raised by the appellant before respondent No.1 as well as considering the pendency of the civil suit filed by the appellant, the compensation amount determined in the award for the structure, had not been released and was withheld. Respondent No.1 further submitted that compensation amount would be disbursed as per the order of the Court. Relevant portions from the reply of respondent No.1 read as under: “(a) As regards the amount of compensation of the house which was assessed to Rs.59.04.719/vide Award No.32/1 dated 27.01.2017 has been announced. The Plaintiff/Applicant objected the payment of whole of the compensation amount to defendant/respondent No.2 and he had presented the copy of sale deed and mutations as referred in para No.2 of the plaint. (b) Keeping in view his objection and pending civil suit regarding payment of the compensation of the house, the payment has been with hold to avoid further litigation. The amount of compensation will be paid as per decision to this Hon’ble Court. (b) Keeping in view his objection and pending civil suit regarding payment of the compensation of the house, the payment has been with hold to avoid further litigation. The amount of compensation will be paid as per decision to this Hon’ble Court. (c) However, it is submitted that on the objection of the plaintiff/Applicant the payment of compensation of house has been with hold by the replying Defendant. (d) The contents of para No.6 are admitted to the extent that compensation with regard to structure is yet to be released. Rest of the contents of para are denied being wrong. It is specifically denied that replying Defendant/respondent is going to release the amount of compensation pertaining to house in favour of Defendant/Respondent No.2. Further it is submitted that payment of compensation has been with hold, which would be released as per decision of the Ld. Court. Rest of the contents of para are denied being wrong. (e) That content of this para are admitted to extent that plaintiff requested to release the ½ share in his favour. Rest of the content of this para is denied being wrong. However, it is submitted that compensation amount would be dispersed as per orders of Hon’ble Court. (f) However, it is already submitted that compensation amount is with held and would only be dispersed as per directions of the Honorable court, therefore, question of irreparable loss to applicant does not arise.” 2(v) Learned Trial Court dismissed the application vide order dated 13.3.2020 holding that: (a) Once the award has been announced by the competent authority and the apportionment had been suggested by it then the Civil Court certainly cannot sit as an appellate Court to examine the legality of the same in a simple suit for injunction. (b) Once the award has been announced by the competent authority after making all the inquiries, the presumption attached to the revenue entries stands rebutted and the award has to prevail over it. In case a person is aggrieved by the award and the manner of apportionment of the compensation amount then he has to file a suit for declaration of his status and entitlement. Relief of injunction can be prayed as a consequential relief and not as a primary relief. In case a person is aggrieved by the award and the manner of apportionment of the compensation amount then he has to file a suit for declaration of his status and entitlement. Relief of injunction can be prayed as a consequential relief and not as a primary relief. In the instant case the petitioner had not set up any claim for declaration, therefore, suit in present form was not maintainable, so long as declaratory relief was not claimed. (c) under the provisions of Section 3H(4) of the National Highway Act, 1956, it is for the competent authority to refer a dispute in respect of apportionment of the amount to the principal Civil Court of original jurisdiction. Filing of the civil suit by the aggrieved persons is not an appropriate remedy. (d) In the instant case, question raised pertained to the apportionment of money. No immovable property was subject matter of the litigation. Since loss of money can be adequately compensated, therefore ingredients for grant of temporary injunction were missing in the case. For the aforesaid reasons, application filed by the petitioner under Order 39 Rule 1 and 2 was dismissed. This order has been assailed by means of instant appeal. 3. I have heard learned counsel for the parties and gone through the documents appended with the appeal. 4(i) Section 3H(4) of the National Highways Act reads as under: “(4) If any dispute arises as to the apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, the competent authority shall refer the dispute to the decision of the Principal Civil Court of original jurisdiction within the limits of whose jurisdiction the land is situated.” 4(ii) The land in question has been acquired by respondent No.1 for Four Laning of the National Highway. Compensation amount determined for acquisition of the land has been released in equal shares in favour of appellant and respondent No.2. Release of half of compensation amount in favour of the appellant towards acquisition of land has not been objected by respondent No.2 despite his stand that the appellant was not entitled to the compensation in lieu of acquisition of land and structure existing over the land in question. Release of half of compensation amount in favour of the appellant towards acquisition of land has not been objected by respondent No.2 despite his stand that the appellant was not entitled to the compensation in lieu of acquisition of land and structure existing over the land in question. 4(iii) There is no dispute between the parties that revenue documents as they stand today reflect the appellant and respondent No.2 as coowners in possession with equal shares over the land/house in question. 4(iv) The appellant has claimed ½ share in the structure award passed by respondent No.1 on 27.1.2017. Respondent No.1 though was proceeding to release entire compensation announced under the structure award, in favour of respondent No.2 in view of his alleged exclusive possession of the structure, however, at present, admittedly, in view of the objections preferred by the appellant, the release of the award amount in lieu of the acquired structure has been withheld by respondent No.1 pending decision of the Civil Court. During hearing of the case, learned Additional Advocate General submitted that objections of the appellant against the release of the compensation amount awarded in lieu of acquisition of structure were received by respondent No.1, however, the same were not decided and further that compensation amount determined in the award towards acquired structure has not been released in favour of either of private parties till date. 4(v) In latest HLJ 2017 (HP) 1565 titled Gian Dass and others Vs. Daulat Ram and others, a coordinate Bench of this Court after noticing provisions of Section 3H(4) of the National Highways Act, has held that if any dispute as to the apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, then the competent authority shall refer the dispute to the decision of the Principal Civil Court of original jurisdiction within the limits of whose jurisdiction the land is situated. It was further held that the suit filed by the petitioners therein on their own was not maintainable in view of the provisions of Section 3H(4) of National Highways Act 1956. In the instant case also the civil suit was instituted by the appellant on his own before the Court of learned Additional District Judge. It was further held that the suit filed by the petitioners therein on their own was not maintainable in view of the provisions of Section 3H(4) of National Highways Act 1956. In the instant case also the civil suit was instituted by the appellant on his own before the Court of learned Additional District Judge. The suit was not maintainable under the provisions of Section 3H(4) of the National Highways Act, hence the same is dismissed as such. However in the facts and circumstances of the case, where admittedly, the objections preferred by the appellant in respect of his entitlement to receive half share in the compensation amount determined in the award towards acquisition of structure standing over the land in question, are admittedly pending before respondent No.1, then, there shall be a direction to respondent No.1 to decide these objections in terms of provisions of Section 3H of the National Highways Act and in accordance with law within a period of four weeks from today. Till such decision, the amount of compensation in question determined under the structure award shall not be released by respondent No.1 either in favour of the appellant or respondent No.2. It goes without saying that respondent No.1/competent authority shall decide the objections without being influenced by any observations made above. With these observations and directions, the instant appeal stands disposed of, so also the pending application(s), if any.