State Of Jammu & Kashmir And Ors @APPELLANT@Hash Lal Chand

1 Both these appeals are directed against the award dated 31.12.2008 passed by the learned Additional District Judge, Doda (hereinafter referred to

as “The Reference Courtâ€) MA No.191/2009 is filed by the claimants who feel dissatisfied with the grant of interest by the Reference Court;

whereas CFA No.12/2011 is filed by the State of J&K which feels aggrieved of the enhancement of awarded amount by the Reference Court. Since

both the appeals are directed against a single award passed by the Reference Court, as such have been heard together and are being disposed of by

this common order.

2 Shorn of unnecessary details, the facts which are necessary for the disposal of these appeals may be noticed:

On the requisition made by the Principal, Government Degree College, Doda vide his No. DCD/Const/16/90/153 dated 21.08.1990 for acquisition of

the land for construction of Degree College Doda, the Collector Land Acquisition, Doda issued Notification under Section 4 of the Land Acquisition

Act (hereinafter referred to as “the Actâ€) on 21.08.1990. Notification under Section 4 of the Act was followed by Notification under Section 6 of

the Act on 8.12.1990. After completing requisite procedure under Sections 4 and 6 of the Act, Notification under Section 9/9-A was issued by the

Collector. The claimants, whose land was coming under acquisition, submitted their objections to the Collector. They did not dispute the public purpose

for which the land was being acquired but submitted that they were entitled to compensation @ Rs.1.40 lacs per kanal which as per claimants, was

prevalent market rate of the land in the area. The Collector considered the objections of the claimants but did not agree with them. He accordingly

assessed the rate of the land at Rs.35,000/- per kanal. The basis of assessment of the rate of the land at Rs.35,000/- per kanal was attributed to some

award passed with respect to land acquired for new bus stand, Doda and Cooperative Complex, Doda in the year 1995. 3 The claimants feeling

dissatisfied with the amount awarded, filed application before the Collector for making reference to the Reference Court for enhancement of

compensation. The Collector obliged and made reference to the Reference Court.

4 On receipt of reference, the Reference Court put the State as well as the Collector to notice. The Collector filed his written objections in which the

rates fixed by him were sought to be justified. On the basis of the pleadings of the parties, the Reference Court framed the following issues:

i. Whether the compensation paid to the petitioners for the land acquired was not given according to the market value prevailing at the time of

acquisition?...OPP.

ii. In case issue No.1 is proved in affirmative, whether the market value of the land acquired was between 1.40 lacs to 2 lacs per kanal at the time the

land was acquired for construction of Degree College…OPP

iii. To what relief the petitioners are entitled to …OPP

5 The parties led evidence in support of their respective claims. The Reference Court did not agree with the plea of the Collector. From a bare perusal

of the award, it transpires that during the course of arguments, the learned APP who appeared for the Collector raised plea of non maintainability of

reference on the ground that the application for reference was filed by the claimants before the Collector after the period of limitation and that the

claimants had received the compensation without any protest. Both the issues were considered by the Reference Court and the contentions raised by

the learned APP were rejected. ON the point of limitation, the Reference Court found that the Collector had not passed the award in presence of the

parties/persons interested in the acquisition nor had issued the notice in terms of Section 12(2) of the Act and, therefore, the application for reference

could have been filed by the claimants within six months from the date the claimants acquired knowledge of passing of the award. The Reference

Court thus, found on facts that the claimants had acquired knowledge of the award on the date they actually received the compensation and, therefore,

filed application for reference within a period of six months therefrom. The objection of the learned APP that the claimants had received the

compensation without protest and, therefore, precluded from seeking reference, also did not find favour with the Reference Court. The Reference

Court, taking note of the fact that the claimants had moved the application for reference on 28.12.1994 requesting the Collector to release payment in

their favour under protest, came to the conclusion that the reference made was valid.

6 On the question of compensation payable to the claimants for the land acquired, the Reference Court not only took into consideration the oral

evidence led by the parties and the sale deeds with respect to the land in the area but also relief upon rates which had been taken into consideration

for awarding compensation with regard to the land situated in the same locality which was earlier acquired for construction of Gujjar and Bakarwal

Hostel. The Reference Court accordingly, enhanced the compensation payable to the claimants from Rs.35,000/- per kanal to Rs.71,343.28 vide its

award impugned in these appeals.

7 Learned counsel appearing for the State, Mr. H.A.Sidiqui vehemently submits that the Reference Court is not justified in enhancing the rate in the

absence of any cogent and legally admissible evidence brought on record. He, therefore, submits that the sale deeds relied upon by the Reference

Court were for small pieces of land and, therefore, could not have been relied upon for the purpose of fixing the rate of a big chunk of land which was

acquired by the Collector in the instant case. The submissions made by the learned counsel are without any substance for the reason that the

Reference Court while considering the sale deeds was aware that these pertained to smaller parcels of land, this did not fix the rate solely on that

basis. The decision of the Reference Court to enhance the compensation as is apparent from bare reading of the impugned award, was on the basis of

cumulative consideration of the evidence oral as well as documentary. The award passed by the Collector for the land in the same locality for

construction of Gujjar and Bakerwal hostel was also duly taken note of. The findings of fact thus, recorded by the Reference Court on appreciation of

evidence cannot be found fault with. The enhancement of compensation as awarded by the Reference Court is, therefore, held to be correct.

Consequently, the award passed is upheld. As a consequence whereof, the appeal filed by the State is dismissed.

MA No.191/200

 This, as already indicated, is an appeal by the claimants seeking enhancement of compensation on the ground that the interest awarded by the

Reference Court is not in consonance with law.

Learned counsel for the claimants-appellants in this appeal submitted that the Reference Court has awarded interest @ 6% per on the enhanced

amount whereas it should have been 10% per annum. The submission made by the learned counsel for the appellants/claimants is without substance

for the reason that in terms of Section 28 of the Act, the Reference Court can award interest @6% per annum on the enhanced rate to be reckoned

w.e.f. the date on which the Collector takes the possession of the land to the date of actual payment of excess amount in the court. The interest of

6% per annum payable on the enhanced amount is, therefore, statutory interest and cannot be enhanced. Learned counsel for the appellants perhaps

was under impression that payment of interest on the enhanced amount is also regulated by the provisions of Section 35 of the Act. Needless to say

that Section 35 of the Act provides for interest that is required to be awarded by the Collector while passing the award. It is 6% interest from the date

of taking over the possession till the same is actually paid, however, providing further that if the amount of compensation awarded in not paid within

one year from the date of taking over possession, the interest @10% per annum would be payable. However, interest to be awarded on the enhanced

amount is regulated by Section 28 of the Act. The Reference Court has rightly awarded 6% interest on the enhanced amount and, therefore, the same

cannot be found fault with.

This appeal too, is found to be devoid of any merit and, therefore, dismissed.