Jammu & Kashmir High Court - Srinagar Bench
State Of J&K vs Gul Mohammad Bhat & Ors on 19 February, 2021
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
Reserved on: 10.02.2021
Pronounced on:19.02.2021
LPA No.157/2019
State of J&K ... Appellant(s)
Through: -Mr. B. A. Dar, Sr. AAG.
Vs.
Gul Mohammad Bhat & Ors. ...Respondent(s)
Through: - Mr. J. H. Reshi, Advocate.
CORAM: HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
Sanjay Dhar, J
1) The instant appeal under Clause 12 of the Letters
Patent is directed against the judgment dated 18.01.2019
passed by learned Single Judge in OWP No.243/2016 titled
State of J&K vs. Gul Mohammad Bhat & Ors.
2) Genesis of this appeal owes its origin to land
acquisition proceedings initiated by respondent No.12 on
the basis of indent placed by appellant herein for
construction of Fire & Emergency Services Complex at
Anantnag. The respondent No.12, the Collector, after
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completion of acquisition proceedings in terms of the
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provisions contained in the Jammu and Kashmir Land
Acquisition Act, 1934 (for short "the Act"), passed the final
award dated 27th of January, 1999, thereby acquiring land
measuring 10 kanals situated at Village Sarnal Anantnag.
The award was passed for an amount of Rs.17.25 lacs
@Rs.1.50/ lacs per kanal with Jabirana @15% and the
appellant herein was directed to deposit the award amount
within 30 days from the date of issuance of award.
3) According to the appellant, the award amount was
deposited by it before respondent No.12 within time for its
disbursement to the lawful owners of the land in question.
The respondent No.12 is stated to have deposited the said
amount with the J&K Bank, T.P. Branch, Anantnag, with a
request to the Manager to transfer the award amount in the
individual accounts of the land owners as per their shares.
4) It appears that the land owners i.e. respondents 1 to
11, did not feel satisfied with the award and, accordingly,
made an application before the respondent No.12 under
Section 18 of the Act seeking reference to the District
Judge, Anantnag. During these reference proceedings, the
respondents 1 to 11 i.e. land owners filed an application
under Section 35 of the Act, seeking a direction to the
appellant to deposit the statutory interest on the award
sum. The application was resisted by the appellant herein
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on the ground that it had deposited the award amount well
within time and, as such, it was not liable to pay any
interest.
5) It seems that the Reference Court passed order dated
27th of March, 2010, directing the respondent No.12 to
deposit the statutory interest, where after vide orders dated
02.01.2016 and 06.02.2016, coercive measures were
ordered by the Reference Court against the appellant as the
respondent No.12 claimed that the appellant being the
indenting department is liable to pay the statutory
interest.
6) The aforesaid orders passed by the Reference Court
from time to time with regard to recovery of statutory
interest from the appellant and respondent No.12 came to
be challenged by the appellant by way of a writ petition
bearing OWP No.243/2016 before this Court, primarily, on
the ground that the appellant had deposited the awarded
amount well within time and merely because the
respondent No.12, the Collector, had failed to deposit the
awarded amount in the Reference Court at the time of
making the reference, the appellant cannot be burdened
with the liability to pay the statutory interest. It was further
contended that if at all statutory interest is payable, the
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same is to be paid by the respondent No.12 and not by the
appellant herein.
7) The learned Single Judge, after hearing the parties
and on the basis of the pleadings, framed the following
three questions for determination:
(i) Whether the deposit of the awarded
compensation in the bank account maintained
by the Collector with direction to deposit the
same in the saving accounts of interested
persons is a valid deposit and complies with the
mandate of Section 32 of the Act?
(ii) Whether the petitioner who had deposited the
awarded compensation in terms of the award
with the Collector within stipulated period can
be burdened with liability of paying the statutory
compensation in terms of Section 35 of the Act?
(iii) Whether the reference court is competent in law
to direct the indenting department to deposit the
statutory amount of interest on the awarded
compensation?
8) Regarding the first question, the learned Single Judge
came to the conclusion that the amount of compensation
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shall be deemed to have been deposited on 23rd of
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February, 2013, when the said amount was actually
transferred into the account of Reference Court and not on
the date when it was deposited by the respondent No.12 in
the bank account asking the bank to transfer the same in
the individual accounts of the land owners.
9) On the second question, the learned Single Judge,
came to the conclusion that the appellant is liable to
deposit the statutory interest in terms of Section 35 of the
Act on the award sum from 27th January, 1999 till 23rd of
February, 2013 when the amount was actually deposited in
the Reference Court. The learned Single Judge, however,
gave liberty to the State to recover the said amount from
the concerned Collector who failed to deposit the award
amount in the Reference Court at the time of making the
reference.
10) On the third question, the learned Single Judge
concluded that the Reference Court is competent to direct
the Collector to deposit not only the compensation but also
the statutory interest accrued thereon in terms of Section
35 of the Act.
11) The appellant has called into question the aforesaid
findings of the learned Single Judge on the grounds that
the same are contrary to factual and legal position; that the
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learned Single Judge despite observing that the appellant
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had deposited the awarded compensation without un-
necessary delay, was not justified in burdening the
appellant with the liability to pay the statutory interest;
that the amount deposited by the appellant was transferred
under the directions of respondent No.12 to the individual
accounts of the land owners, as such, learned Single Judge
was not correct in upholding the order of award of
statutory interest in favour of the land owners.
12) We have heard learned counsel for the parties and
perused the grounds of appeal, the impugned judgment
and the record of the case.
13) The main and only ground urged by the learned
counsel for the appellants during the course of arguments
is that the appellant has, without any un-necessary delay,
deposited the award sum with the respondent No.12 and
just because respondent No.12 has failed to deposit the
said amount with the Reference Court at the time of
making the reference, the appellant cannot be penalized
and burdened with the payment of statutory interest. It has
been further contended that the awarded compensation
has been transferred to the individual bank accounts of the
land owners and, as such, they are not entitled to statutory
interest.
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14) Before dealing with the aforesaid contentions of
learned counsel for the appellant, we need consider the
import of relevant provisions of the Act which govern the
deposit of compensation and payment of statutory interest.
15) Section 32 of the Act, which stands quoted in the
impugned judgment, provides that on making an award,
the Collector is obliged to tender payment of compensation
awarded by him to the persons interested/entitled thereto
according to the award unless such persons do not consent
to receive it or if there is any dispute as to the title to
receive the compensation or as to the apportionment of it.
The provision further provides that in the later eventuality,
a Collector has to deposit the amount of compensation in
the Court in which reference under Section 18 is to be
submitted.
16) Section 35 of the Act provides for payment of interest
on the awarded compensation in a case where the amount
of compensation is not paid or deposited on or before
taking possession of land. The rate of interest is 6% for the
first year and for succeeding years, it is 10%
17) From the reading of provisions contained in Section
32 and 35 of the Act, it becomes clear that a Collector is
duty bound to either pay the awarded sum to the land
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owners upon making an award under Section 11 of the Act
or in case they refuse to receive it or there is a dispute
about the entitlement or apportionment, he has to deposit
the same in the Reference Court failing which interest in
the manner provided in Section 35 is payable by the
Collector.
18) The first question that would arise is whether deposit
of awarded sum by the indenting department with the
Collector would satisfy the requirement of Section 32 and
the second would be whether the transfer of awarded
compensation in the individual bank accounts of land
owners in the facts and circumstances of the instant case
would disentitle them from claiming statutory interest.
19) So far as deposit of amount of compensation in
terms of Section 32 of the Act is concerned, the said
provision makes it very clear that the deposit of the amount
has to be with the Reference Court. Therefore, mere deposit
of awarded sum by the appellant with the Collector would
not absolve it of its liability. It was the duty of the Collector
to deposit the same with the Reference Court once the land
owners, immediately after making of the award, applied for
making a reference thereby expressing their dissatisfaction
with the award passed by respondent No.12. The material
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respondent No.12 on 27.01.1999 and the application
seeking reference under Section 18 of the Act, was made by
the land owners before the Collector on 20th of July, 1999.
20) It appears that the reference was made by
respondent No.12 to Principal District Judge, Anantnag,
somewhere in the year 2006 and even by that time also
neither the amount deposited by the appellant before
respondent No.12 was deposited by it before the Reference
Court nor was it deposited in the individual accounts of the
land owners. It seems that the respondent No.12, long after
making reference under Section 18 to Principal District
Judge, Anantnag, instructed the Manager, J&K Bank, T. P.
Branch, Anantnag, vide its letter dated 18.01.2007, to
transfer the deposited amount in the individual accounts of
land owners, without the consent of land owners and
ultimately the said amount was, under the direction of the
Reference Court, deposited by the concerned bank with the
Reference Court after debiting the said amount from the
individual bank accounts of land owners. This was done on
23.02.2013. The fact that the land owners did not withdraw
even a single penny from their bank accounts, which is
reflected from the bank statement placed on record by the
writ petitioner with the writ petition, goes on to show that
the land owners never accepted the payment.
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21) The aforesaid circumstances lead us to an
irresistible conclusion that in the instant case requirement
of Section 32 with regard to deposition of awarded sum was
fulfilled only on 23.02.2013 and not before that date. The
mere deposition of award amount by the appellant with the
Collector does not satisfy the requirement of Section 32 of
the Act nor does the transfer of said amount in the
individual accounts of land owners without their consent
amount to tender of payment to the land owners in terms of
said provision, particularly when the land owners had
immediately after the making of the award, made their
dissatisfaction with the award known, by asking for
reference under Section 18 of the act. Having said so, the
consequences as contemplated in section 35 of the Land
Acquisition Act have to follow and the land owners i.e.
respondents 1 to 11 became entitled to payment of interest
at the rates mentioned in the said provision from the date
of making of the award till 23.02.2013.
22) The next contention that has been vehemently
pursued by Mr. B. A. Dar, Sr. AAG, is that the appellant
cannot be burdened with the liability to pay the interest for
the fault committed by the respondent No.12, the Collector.
23) The argument is specious and without any merit for
the reason that the appellant as well as respondent No.12
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are functionaries of the Government. While making the
award, the Collector acts as an agent of the Government
and functions under its administrative control. Thus, the
Government is vicariously liable for the acts and omission
of the appellant as well as respondent No.12.
24) The argument that appellant and respondent No.12
are separate entities and, as such, the land owners cannot
claim the amount of statutory interest from the appellant,
is inherently fallacious. Two functionaries or departments
of Government fighting with each other and laying the
blame on each other is a course detrimental to public
interest. These are all limbs of the Government and must
act in co-ordination and not in confrontation without
playing the blame game. The land owners cannot be
deprived of their rightful claim of statutory interest because
of the internal conflicts of the two departments of the
Government.
25) The liability to pay the compensation in respect of
acquisition of land is, primarily, that of the indenting
department and any amount which is included in the cost
of acquisition would have to be borne by the indenting
department. Therefore, the appellant, which happens to be
the indenting department in this case, cannot escape its
liability to pay the interest to the land owners in terms of
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Section 35 of the Act because the same is included in the
cost of acquisition. Even otherwise, whether the statutory
interest in this case held to be payable by appellant or by
respondent No.12, in both the eventualities, the same has
to be debited to the State exchequer.
26) So far as the acts of omission and commission on
the part of respondent No.12 in the instant case are
concerned, the same have been dealt with by the learned
Single Judge in the impugned judgment and the matter has
been left to the decision of the Chief Secretary of the Union
Territory.
27) For what has been discussed hereinbefore, we do not
find any ground to interfere with the findings and the
conclusions drawn by the learned Single Judge in the
impugned judgment, which is well reasoned and lucid. The
appeal is, accordingly, dismissed.
28) No order as to costs.
(Sanjay Dhar) (Tashi Rabstan)
Judge Judge
Srinagar
19 .02.2021
"Bhat Altaf, PS"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
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