COLLECTOR Vs. FRENA BOGA
LAWS(J&K)-2006-7-21
HIGH COURT OF JAMMU AND KASHMIR
Decided on July 25,2006

COLLECTOR Appellant
VERSUS
Frena Boga Respondents

JUDGEMENT

- (1.) THIS appeal is directed against the judgment and decree (Award) dated 29th June, 2000 passed by Principal District Judge, Srinagar, in case titled Mrs. Frena Boga vs. General Manager Industries Centre, Srinagar, hereinafter referred to as impugned award, whereby and whereunder the compensation awarded at Rs.6500/per kanal came to be enhanced to Rs.15000/ - per kanal.
(2.) IT is necessary to give a flask back of the case, the womb of which has given birth to the present appeal. It appears that land measuring 535 kanals and 2 marlas came to be acquired for establishment of industrial complex at Khonmoh. Collector passed award dated 16th November, 1979 whereby Rs.6500/ - came to be awarded as compensation per kanal. It appears that Collector made reference to the District Court on 21st August, 1996 which came to be diarized as reference No.8 of 16th October, 1996. After hearing the parties, the impugned award came to be passed. It appears that respondent claimant had prayed for awarding Rs.15000/ - as compensation per kanal instead of Rs.6500/ -. Collector resisted the said reference and following issues were framed. "1. Whether the petitioners have not been paid compensation according to the market rate per kanal keeping in view of the nature, location and prospects of future development of the land? OPP 2. Whether the petitioners are entitled to Rs.15,000/ - per kanal as compensation? OPP 3. Whether the petitioners had accepted the award passed and so the reference is not maintainable, if so on what grounds? OPR 4. Whether the petition is barred by limitation? OPR 5. Relief. The entire case revolves round issue No.3, thus I deem it proper to decide issue No.3 at the first instance.
(3.) THE trial court held that claimant made the application for enhancing the compensation within the stipulated period, thus it shall be deemed that the claimants had received the compensation under protest and accordingly decided issue No.3 in favour of the claimants/respondents herein and against the Collector/appellant herein. I am of the considered view that finding returned by the trial court is perverse, illegal and without any force for the following reasons: - If the claimant receives compensation without any protest he cannot file an application for making reference. It is profitable to reproduce Section 32 of the Land Acquisition Act, hereinafter referred to as the Act, herein, which reads as under: - "32. Payment of compensation or deposit of same in Court. (1) On making an award under section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested -entitled thereto, according to the award, and shall pay it to them unless prevented by someone or more of the contingencies mentioned in the next sub -section. (2) If they shall not consent to receive it, or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation in the Court, to which a reference under section 18 would be submitted: Provided that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount: Provided also that no person who has received the amount otherwise than under protest shall be entitled to make any application under section 18:.............................." While going through this provision of law, it is crystal clear that when compensation is received without any protest by the claimant he is precluded from challenging the award and cannot seek enhancement of compensation. The claimant cannot be allowed to seek enhancement of compensation after receiving the money without any protest. Apex Court in case titled as Wardington Lyngdoh v. Collector, Mawkyrwat, reported in AIR 1995 SC 2340 has held that reference is not maintainable when compensation has been received without protest. It is profitable to reproduce para -5 of the said judgment herein: - "5. It will thus be clear that the persons interested in the land are entitled to receive compensation awarded by the Collector under S.11 under protest and entitled to object to the compensation determined by the Collector. No person who had received the amount otherwise than under protest should be entitled to make the application under S. 18 within the limitation prescribed under the proviso to sub -s. (2) of S.18 together with the grounds on which the objections have been taken. Thereon the Collector is enjoined to make a reference to the Civil Court with the statement in the manner stated in S.19." Apex Court has also taken the same view in case titled Orissa I.I.D Corpn. v. Supai Munda, reported in AIR 2004 SC 390. It is profitable to reproduce para -13 of the said judgment herein: - "13. Learned counsel for the appellants stressed to press the proviso to Section 31(2) of the Act, which provides that the reference under Section 18 of the Act is incapable unless a person has received the compensation amount under protest. This benefit will not be available to the appellants in the present case because, as already noticed, the claimant has received the compensation under duress." ;


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