Ghulam Mohd Matta and Another vs State and Others

Permod Kohli, J.—Petitioners had three storied house at Kishtwar, which came to be acquired for construction of link road from Bus Stand

to Sadar Bazar Kishtwar. Compensation has been assessed by the Collector, Land Acquisition, at the rate of Rs 1.32 lac being costs of the land

and structure constructed thereon. It is alleged that petitioners were not aware of the acquisition proceedings that commenced with the issuance of

notification u/s 4 of the Land Acquisition Act on 7.9.1989. It is further stated that no notice under Sections 4, 5A and 9 of the Land Acquisition

Act was ever served upon the petitioners, who were the owners of the acquired property and are interested persons. According to petitioners,

they acquired knowledge of acquisition proceedings only in the month of March, 1999, when they were informed by respondent-2. This was

followed by notice dated 23.8.1999, for receiving compensation awarded by the respondents in respect of their property. Further allegation of the

petitioners is that they were under threat of eviction and demolition of the house and forced to accept the amount of compensation. They accepted

the same under protest on 27.8.1999. Petitioners have questioned the legality and validity of acquisition proceedings and award dated 29.3.1997,

passed by respondent-2. Besides this, they have also challenged provisions of Sections 12, 15 and 23 of the Land Acquisition Act as ultra-vires of

the Constitution of India particularly Articles 14 and 31A. In alternate, petitioners seek direction for reassessment and revaluation of the acquired

property in accordance with market value as prevalent in the year 1997 i.e when award was made.

Main ground urged on behalf of the petitioners is that even though acquisition proceedings were initiated in the year 1989 and petitioners being

interested persons were never put to any notice or associated with acquisition proceedings. It is stated that the proceedings took long time and

finally culminated into passing of the award dated 29.3.1997. Even after the passing of the award in the year 1997, they came to know about

acquisition proceedings in the year 1999 and thus assessment of compensation of the property should have been as on the date of passing of the

award because possession was sought to be taken after passing of the award. With regard to challenge under Sections 12, 15 and 23 of the Land

Acquisition Act is concerned, it is stated that provision contained in these Sections for assessment of value as on the date of issuance of declaration

u/s 6, is unconstitutional as it deprives petitioners of their legitimate right to claim compensation as per market value. Petitioners claim that they have

a right under Articles 14 and 31A of the Constitution of India to claim market value of the acquired property. Respondents have filed their counter

through SDM Kishtwar. Claim of the petitioners is resisted on the ground that land was acquired for public purpose vis-'-vis construction of Link

Road and acquisition proceedings were initiated in accordance with provisions of Land Acquisition Act by issuing notification under Sections 4(1),

6, 7, 9 and 9A and even final award stands passed after affording full opportunity to all the claimants. It is further stated that value of the structure

involved was assessed by Executive Engineer, PWD Kishtwar and accordingly, amount of compensation was paid to the petitioners, who received

the same from the competent authority.

Respondents were directed to produce record, which has been produced. It appears that notice u/s 4(1) of the Land Acquisition Act was

issued on 7.9.1989. Interested persons in their objections under Sections 5 & 5A did not object to the acquisition but only demanded price of the

land at the rate of Rs 70,000-/ per kanal. The case was referred to the Revenue department for the issuance of declaration under Sections 6 & 7.

Revenue Department vide notification No: RD 32 of 1990, issued declaration accordingly. Interested persons were put to notice u/s 9 & 9A. They

reiterated their demand for compensation at the rate of Rs 70,000/- per kanal. However, on assessment, compensation was assessed at the rate of

Rs 9/- per square feet, which came to Rs 48960/- per kanal besides compensation for the structures. Interest was also assessed. Owners were

also paid ""Jabrana"" at the rate of 15% of the assessed amount. After assessment, final award was issued in the year 1997. Petitioners have

specifically stated that they were not informed nor any notice was ever served upon them regarding acquisition proceedings. They came to know

about the same in month of March, 1999. In the reply, respondents have not disclosed the date of service of notice upon the petitioners though it is

stated that final award was passed after affording full opportunity to the petitioners. Final award contain averments regarding service of notice

under Sections 9 & 9A. Nothing has been stated as to when these notices were served upon the petitioners nor any record has been produced

showing service of notice. Respondents have also not explained delay of over seven years in passing the final award.

It is settled law that a person can be deprived of his property required for public purpose in accordance with procedure established under law.

Land Acquisition Act contain procedure for acquisition of the property required for public purpose. It also defines public purpose for which

property can be acquired. There is no dispute regarding the fact that property has been acquired for the public purpose i.e for construction of Link

road. From the pleadings of the parties it appears that intimation of the acquisition proceedings, service of mandatory notices upon the petitioners

has not been established. Strictly speaking provisions of the Land Acquisition Act does not seem to have been observed. After publishing notice

u/s 4(1), interested persons have a right to file objections and objections are to be disposed of after affording full opportunity to such interest

persons in terms of Section 5A of the Land Acquisition Act.

Government on being satisfied has to make declaration in terms of Section 6 and further acquisition proceedings are required to be proceeded

with. Interested persons are also entitled to compensation at market rate. After holding inquiry u/s 11, Collector has to publish the award in terms

of Section 12. Once award is published, acquisition proceedings attain finality. If a person is not satisfied with the amount of compensation, he has

a right to seek reference in terms of Sections 18 and 31 of the Land Acquisition Act. As far award of compensation for the acquired land is

concerned, Collector is to be guided by the provision of Sections 15, 23 and 24 of the Land Acquisition Act. Section 23 provide for assessment

of the market value as on the date of publication of declaration u/s 6. In the present case, declaration u/s 6 was made on 12.2.1990. However,

final award came to be passed in the year 1997. Possession was taken over from the petitioners in the year 1999. Therefore, question arises

whether market value of the land for the purpose of payment of compensation is to be assessed as on the date of declaration u/s 6 or passing of

the award in the year 1997 or taking over of the possession in the year 1999. Mr. Koul learned Counsel for the petitioners has relied upon

judgment of Apex Court in case of State of Madras Vs. D. Namasivaya Mudaliar and Others, . In this case compensation was assessed on the

date prior to issuance of notification u/s 4(1) of the Land Acquisition Act and Apex Court on examining the validity of the Article 31 of

Constitution of India has held as under:

To deny to the owner of the land compensation at rates which justly indemnify him for his loss by awarding him compensation at rates prevailing

ten years before the date on which the notification u/s 4(1) was issued amounts in the circumstances to a flagrant infringement of the fundamental

right of the owner of the land under Article 31(2) as it stood when the Act was enacted.

In other case of P. Vajravelu Mudaliar Vs. Special Deputy Collector, Madras and Another, , relied by Mr. Koul, Apex Court considered right

of the owner to receive compensation for the property deprived of and held as under:

The State of West Bengal Vs. Bela Banerjee and Others, lays down three points namely (i) the compensation under Article 31(2) shall be a "" just

equivalent"" of what owner has been deprived of: (ii) the principles which the Legislature can prescribe are only principles for ascertaining a ""just

equivalent"" of what the owner has been deprived of: and (iii) if the compensation fixed was not a ""just equivalent"" of what the owner has been

deprived of or if the principles did not take into account all relevant elements or took into account irrelevant elements for arriving at the just

equivalent, the question in regard thereto is a justiciable issue. Thus it was a settled law that under Article 31(2) of the Constitution of before the

Constitution (Fourth Amendment) Act 1955, a person whose land was acquired was entitled to compensation i.e a ""just equivalent"" of the land of

which he was deprived. State of Madras Vs. D. Namasivaya Mudaliar and Others, , Ref.

Mr. Koul has also relied upon other judgments in case of Patel Byrappa and Others Vs. State of Karnataka and Others, as also in case of

Madhav Gopalrao Sanap Vs. State of Maharashtra and Others, .

On the other hand Mr. Qazi has relied upon judgment in case of Smt. Ratni Devi and Another Vs. Chief Commissioner, Delhi and Others,

wherein it has been observed as under:

The main contention of the petitioners and the appellants is that compensation which is to be paid with reference to the value of the property on the

date of the notification is an unreasonable restriction to hold and dispose of property. It was submitted that compensation should be paid with

reference to the value of the property on the date possession of the property was taken. This question has been answered in the judgment in

Aflatoon's case (supra). Mathew, J. speaking for the Court said that Article 31(5) precludes such a challenge. Further, Section 4(3) of the Land

Acquisition Amendment and Validation Act 1967 provided for payment of interest at 6 per cent of the market value after the expiry of three years

from the date of the notification u/s 4 to the date of payment of compensation. Again, Section 24 of the Act provides that any outlay or

improvement on, or disposal of, the land required, commenced, made or affected without the sanction of the Collector after the date of the

publication of the notification shall not be taken into consideration by the Court in awarding compensation. Therefore, any outlay or improvement

made with the sanction of the Collector after the date of the notification will be taken into consideration in awarding compensation.

As noticed above, nothing has been brought on record to show that any notice under Sections 4(1) 6, 9 and 9A was ever served upon the

petitioners. However, award clearly mention that notices were served upon interested persons and objections decided also. Section 23 provide

assessment of compensation by taking into consideration market value at the time of issuance of declaration u/s 6. Though Section 23 has been

challenged by the petitioners, however, there are no valid grounds for challenging the same. In any case, issue is settled by Apex Court in Smt.

Ratni Devi and Another Vs. Chief Commissioner, Delhi and Others, . Therefore, no relief can be granted to the petitioners, as far contention of the

petitioner that value of the property should be determined as on the date of passing of the award is concerned. It is settled law that no direction can

be issued contrary to law. Though there has been considerable delay in making award after publication of acquisition proceedings u/s 4(1) and

there is no valid explanation for such an inordinate delay. Fact remains that Collector was required to assess the market value as on the date of

publication of declaration u/s 6. Judgments relied upon by Mr Koul including State of Madras Vs. D. Namasivaya Mudaliar and Others, , are of

no help as in these cases Apex Court disapproved assessment of compensation prior to the date of publication of notice u/s 4. Said judgments

have no application to the facts of the present case. In case before Orrisa High Court, court had allowed interest on the amount of compensation.

Section 35 of the J&K Land Acquisition Act make provision for payment of interest from the date of taking over of possession. In the present

case possession was taken over in the year 1999 and compensation also received, though under protest. Hence no direction can be issued for

payment of interest in contravention of Section 35. From the facts of the case, I am satisfied that the petitioners have been deprived of their right to

receive compensation as per market value because of long delay in completion of acquisition proceedings. Petitioners have a right to seek

reference u/s 18, if they are not satisfied with the amount of compensation awarded by respondent-2. In the present case, award was passed in the

year 1997 and petitioners came to know about the acquisition proceedings after passing of the award and thereafter, they were unable to seek

reference in time. Keeping in view the totality of the circumstances of the case, I feel only relief that can be granted to petitioners is to allow them to

seek reference u/s 18 by condoning period of limitation prescribed for seeking reference. Since petitioners were not served with notice of making

an award, it is directed that petitioners may seek reference u/s 18 within a period of three months from the date of this judgment and in the event, a

request is made before Collector, he shall proceed with the application without taking into consideration period of limitation as prescribed under

Land Acquisition Act.