EX ENGINEER, PHE DIVISION, KATHUA Vs. TARSEEM LAL
LAWS(J&K)-1999-10-9
HIGH COURT OF JAMMU AND KASHMIR
Decided on October 20,1999

Ex Engineer, Phe Division, Kathua Appellant
VERSUS
TARSEEM LAL Respondents

JUDGEMENT

O.P.SHARMA, J. - (1.) THIS appeal is u/s 52 of the Land Acquisition Act. Land measuring 3 kanals 15 marlas comprising Kh. No. 2237/792 in village Nonath Tehsil Hiranagar was acquired by the State for construction of a Pump Room and Chowkidar quarter by the department of PHE. The Deputy Commissioner (Collector approved the compensation @ Rs. 9,000 per kanal. However, land owner was not satisfied and, therefore, applied for reference u/s 18 of the Land Acquisition Act (for short the Act). The Collector made reference and the reference court vide award dated 27.3.98 enhanced the compensation from Rs. 9000 to Rs. 80,000 per kanal.
(2.) THE appellant challenges the award on the ground that respondent having claimed Rs. 50,000 per kanal in response to notice u/s 9 of the Act, the award could not exceed the amount demanded in view of the bar of section 25 of the Act. It is also challenged on the ground that market rate of the land in inferior cannot be determinative of market rate of Land abutting the main read. Mrs. Seema Shekhar appearing for the appellant argued that the award is illegal because it is violative of section 25 of the Act. It is also bad because the market price of the land in the adjoining village has not been taken into account, to determine the market rate of acquired land. Mr. Bakshi raised a preliminary objection to the maintainability of the appeal on the ground that Executive Engineer was not competent to file the appeal. He next argued that respondent had claimed Rs. 50,000 per kanal subject to certain conditions, and therefore, it cannot be construed as a demand u/s 9. Objection with regard to the maintainability of appeal has to be examined with reference to section 52 of the Act which reads as follows: "Subject to the previsions of law in force for the time being in the State relating to the procedure in civil action applicable to appeals from original decrees, an appeal shall lie to the State High Court from any part of the award of the Court in any proceedings under this Act.
(3.) OBVIOUSLY section makes procedure prescribed in the Code of Civil Procedure applicable to the appeals. Section 26 of the Act however, makes a departure insofar as requirement of preparation of a separate decree is concerned, to the extent that award is itself a decree. So requirement of Or.Ã ¿41 Rule -1 CPC so for as it provides that appeal shall be accompanied by a copy of decree is not attracted to appeal u/s 52 of the Act, but all other requirements of the court are to be satisfied. Or. 27 of the CPC lays down the procedure to be followed in CPC by or against Govt. Rules 1 to 3 of Or.Ã ¿27 being relevant are extracted below: "1. Suits by or against Govt. - In any suit by or against the Govt., the plaint or written statement shall be signed by such person as the Govt. may, by general or special order, appoint in this behalf, and shall be verified by any person whom the Govt. may so appoint and who is acquainted with the facts of the case. 2. Persons authorised to act for Govt. - Persons being ex -officie or otherwise authorised to act for the Govt. In respect of any judicial proceedings shall be deemed to be the recognised agents by whom appearances, acts and applications under this Code may be made or done on behalf of the Govt. 3. Plaints in suits by or against Govt. - In suits by or against the Govt., instead of inserting in the plaint the name and description and place of residence of the plaintiff or defendant, it shall be sufficient to insert the words the State of J&K." A bare perusal of this prevision would have put the Senior Additional Advocate General on right guard. It appears the appeal was drafted in hurry without noticing the mandatory previsions. Assuming that the Public Health Department is the Indenting Department, even then appeal had to be filed by the Govt. through head of the department who is Secretary to Govt. and not by the Executive Engineer. All this could have been avoided if the appeal was filed by the Collector, who alone was party being the agent of the Govt. So this appeal on the face of it is not competent. Faced with this, Mrs. Shekhar, argued that assuming the appeal is not maintainable, this Court in exercise of its supervisory power u/s 104 of the Constitution should correct the illegality because the award is against the mandate of section 25 of the Act. To substantiate this she referred to the application EXPTL/2 dated 18.2.92 filed by respondent -2 in response to notice u/s 9 of the Act. Respondent according to her had claimed Rs. 50,000 per kanal as compensation whereas the reference court awarded Rs. 80,000 per kanal. This it is, argued was not permissible. There is much force in the contention. Last two paragraphs of this application read as under: "As regards market value of the land under acquisition the said land is situated on the National Highway. The cost of the said land in the open market is not less than Rs. 4,000 per marla because the land in question is capable to be put for commercial purposes. However, we are not in position to litigate in the law courts. To support our claim we are enclosing a photo stat copy of sale deed executed in the year 1982 which represents sale of two marlas of land in consideration of Rs. 3000. The cost of land in between the period 1982 to 1992 has been considerably increased. However, we are willing to part with the said land on payment of its cost at Rs. 2600 per marla i.e. 50,000 per kanal. In addition to the land compensation we may be paid interest at 18% from the date of notification issued u/s 4 upto the date of realisation of the awarded amount.";


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