Collector Land Acquisition vs Qadir Thoker and Others

Bashir Ahmad Kirmani, J.—This appeal impugns an order passed by Principal District Judge, Budgam wherunder he dismissed appellant's

application for setting aside an ex parte award/decree passed by him on March 2,1998 u/s 18 of Land Acquisition Act whereunder he had

enhanced the amount of compensation from Rs. 10,060 to Rs. 1,32,874 and 1,80,000 per kanal. Grounds pleaded are that the proceedings in

court below were conducted ex parte against the petitioner-appellants of which they got information only on July 15, 1998 immediately whereafter

they moved the application. During course of submissions, while appellant's counsel has re-iterated contents of appeal and also contended that the

ex parte award passed by learned trial Judge against Government creates a financial liability of around Rs. 3.00 crores on public exchequer in view

whereof the matter should have been considered on merit after setting aside of the ex parte proceedings, while in his written submissions

respondents' counsel while giving details of the reference proceeding has stated that in circumstances of the case the appellants had no cause for

having the ex parte decree set aside which had been passed after a long.

I have heard learned Counsel and considered the matter. It appears that way back in 1972-73 appellants acquired around 163 kanals of land in

village Lasjan for construction of National Highway Byepass for which vide award dated June 27,1977 Rs. 10,060 per kanal was awarded as

compensation. Around 18 years after the award and receipt of amount by concerned land owners, Collector Land Acquisition, Budgam appears

to have addressed a letter being No. Land Acq./Collector/1229 dated September 26, 1995 to District Judge, Budgam stating therein that some of

the erstwhile land owners had filed an application before him complaining that they had not been suitably compensated and making a brief mention

of the acquisition proceedings submitted the file to him alongwith the application for ""kind perusal and favour of further necessary action as

warranted under law"". This letter appears to have been treated as a reference by learned District Judge vide endorsement appearing to have been

made in October, 1995 (date sick) whereafter vide interim order dated June 17,1996 the Collector who had been arrayed as a respondent by

learned trial Judge was proceeded against in ex parte even while on the preceding date, i.e.', on June 3, 1996 nobody appeared due to hartal

whereafter evidence of erstwhile landholders was recorded in ex parte and compensation per kanal enhanced to Rs. 1,32,874 & Rs, 1,80,000

alongwith costs of structures assessed at Rs. 47840, raising total amount of compensation payable to Rs. 1,92,52,400 plus around Rs. 96,00,000

as solatium with 6% interest, plus an amount of Rs. 34,92,000 for another portion of land. Initially the award appears to have been passed even

while application for setting aside the ex parte proceedings was pending and came to be disposed of only after the matter was remanded by this

Court.

On cumulative consideration of the matter, I feel that in given circumstances of the case particularly the huge financial liability is created on public

exchequer the appellants' application for setting aside the ex parte award should have been positively considered to enable both parties to contest

the matter on its merit rather than giving a walkover to respondents-beneficiaries for laying claim over crores of rupees on basis of a lately dug up

claim in somewhat suspicious circumstances with concerned Collector finding himself persuaded to writing a letter to the District Judge concerned

rather than making a proper reference in accordance with the procedure presumptively because of the belated request and the learned District

Judge unusually jumping into the proceedings. In technical sense, I feel that the ex parte proceedings as initiated against appellants herein suffer an

element of undesirable haste gatherable from orders passed in the main file. Interim order of March 22,1996 reveals that on that date the file was

taken up after the fixed date, i. e., March 20,1996 because of holidays learned Judge observing that respondent Collector had not appointed any

counsel directed issuance of fresh summons to him; but then on following date, i. e., April 15, 1996 appearance of his counsel has been recorded

even while there is no power of attorney reflecting appointment of one by him. Thereafter, the matter was posted on May 9, 1996 but on that date

no interim order appears to have been recorded. Somehow the file appears to have been taken up on June 3,1996 because of hartal and posted

on June 17,1996 when ex parte proceedings were initiated against appellants. The sequence of proceedings, thus, suggests that in first place

learned Judge neither tried to assure himself about due service or appointment of counsel by them, nor considered the fact that previous to the date

of ex parte proceedings the case had been taken up on a date different than the appointed one due to hartal of which appellants in all probability

might have no knowledge. Ordinarily, both these aspects should have been present to the mind of 'learned trial Judge while considering the

application of appellants for setting aside ex parte award as also the huge fiscal liability that had been inflicted on State exchequer.

Accordingly and for what has been said above, the appeal is allowed and ex parte proceeding culminating into the ex parte award dated March

2,1998 is set aside alongwith the award and the matter remanded to learned trial Judge for denovo proceedings thereupon with notice to the other

side including the Indenting Department which is hereby arrayed as a respondent. Appellants herein shall be at liberty to take all objections

including the one regarding acknowledgement of Collector's letter as reference under-Section 18 of Land Acquisition Act. Any amount paid to

respondents under the reference award be recovered. Registry to follow up.

Matter stands, accordingly, disposed of. Parties are directed to appear before the learned trial Judge on June 21,2008.