Jammu & Kashmir High Court - Srinagar Bench
Khaliq & Ors vs State Of Jk & Ors on 22 September, 2021
S. No. 09
Regular Cause List
IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
OWP No. 1050/2016
Khaliq & Ors. ...Petitioner(s)
Through: Mr N. A. Tabasum, Adv.
Vs.
State of JK & Ors. ...Respondent(s)
Through: Mr. D. C. Raina, AG with
Mr. Sajad Ashraf, GA. for R-1,2, and 5
Mr. S. A. Naik, Adv. for R-3 and 4.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
ORDER
22.09.2021
1. The challenge in this writ petition by about 90 petitioners is to the order
dated 22nd December 2015 passed by the Assistant Commissioner
(Revenue) Srinagar/Collector Land Acquisition Northern Railway
Srinagar/Budgam (hereinafter referred to as the 'Collector') and for a
direction to the respondents to implement the award of the National Lok
Adalat dated 23rd November 2013 passed in Civil Ist Appeal i.e., CIA
No. 109/2013 and 110/2013 and to release the enhanced amount of
compensation in favour of the petitioners with 18% interest per annum
with effect from the date of the award.
2. It would be relevant to state the brief facts for the better understanding
of the controversy before dealing with the legal aspects raised in the
writ petition.
3. The land measuring 72 kanals, 12 marlas and 5 ½ sirsai allegedly
belonging to the petitioners situated in Village Soonthu Kutherbagh in
District Budgam was acquired for the purposes of construction of
Qazigund-Baramulla Railway Line. The Collector, vide final award
dated 6th March 2004 awarded compensation for the said land @ Rs.
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2.00 lacs per Kanal. The petitioners were not satisfied by the rate of
compensation so offered and therefore preferred references under
Section 18 of the J&K Land Acquisition Act (hereinafter referred to as
the 'Act'). Accordingly, the Collector made two references to the
Principal District Judge Budgam on 19th June 2004. The said references
were dismissed on 26.02.2008. Consequently, the petitioners went in
appeal to the High Court which were registered as CIA No. 109 and
110 of 2013. Both the appeals of the petitioners were referred to the
National Lok Adalat.
4. The appeals were taken up for consideration before the Lok Adalat
allegedly in the presence of counsel for the parties and their
representatives and on the basis of the settlement arrived between them
in the pre-Lok Adalat Session, the Lok Adalat awarded compensation
of Rs. 4.00 lacs per kanal with no interest in full and final settlement of
compensation for the acquired land. The award was passed accordingly
in both the appeals and was signed by the counsel for the respective
parties. However, the petitioners were not paid any compensation as
enhanced by the Lok Adalat. All their effort to persuade the Collector
or the Railway Authorities to release the payment failed and ultimately
the Collector Assistant Commissioner (Rev)/ Land Acquisition,
Northern Railways vide his order dated 22nd December 2015 held that
he is unable to implement the award of the Lok Adalat as the same is
not acceptable to the respondents.
5. It is in the above background that the petitioners have not only
challenged the above rejection order but has also prayed for the
direction to release the compensation as per the award of the Lok
Adalat.
6. The submission of learned counsel for the petitioners Mr N. A.
Tabasum is that the award of the National Lok Adalat dated 23 rd
November 2013 is final and conclusive as it has not been challenged by
the respondents in any forum, and, as such, they are bound to make the
payment of the enhanced compensation. The Collector has no authority
of law to say that the award cannot be implemented as the same is not
acceptable.
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7. Mr S. A. Naik, learned counsel for the Railways submits that though
the counsel for the Railway Department has appeared before the
National Lok Adalat and had signed the award on behalf of the
Collector, he had no authorization in this behalf. The Railways was not
a party in the appeals which were referred to the Lok Adalat. It is also
submitted that there was no settlement before the Lok Adalat and, as
such, the award cannot be implemented and, if necessary, the
petitioners have to take recourse to the proceedings for execution of the
award in accordance with the Civil Procedure Code.
8. Mr. D. C. Raina, learned AG submits that the State is an agency through
whom the land was acquired and was put in possession of the Railways.
It is for the intending department to pay the compensation, whatever
amount was put at the disposal of the State has been disbursed to the
claimants/land holders and that unless the Railways provide additional
amount to satisfy the award of the National Lok Adalat, it would not be
possible for the Collector or the State authorities to make the payment
to the petitioners. The counsel for the railways was never authorized to
appear on behalf of the Collector and to enter into settlement with the
petitioners before the Lok Adalat.
9. There is no dispute to the fact that the award dated 6th March 2004
passed by the Collector under Section 11 of the Act offering Rs. 2.00
lacs per Kanal as compensation was not acceptable to the petitioners
and therefore after reference to the Principal District Judge, they had
preferred the appeals in the High Court for the enhancement of the
compensation. These appeals were admittedly referred to the National
Lok Adalat to be held in the High Court on 23rd November 2013 and on
the basis of the settlement between the parties, the award enhancing the
rate of compensation to Rs. 4.00 lacs per kanal was passed by the Lok
Adalat.
10. Once the said award has been passed, the respondents are bound to
carry out the same and to make payment accordingly unless the award
itself is disputed.
11. The respondents cannot turn around and resile from the said award on
any pretext that the counsel for the Railways was not empowered to
appear on behalf of the Collector or locked authority to enter into
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settlement when the aforesaid award has not been challenged in any
higher forum or any application for its review or Collector has been
filed. This apart, the Collector is not the competent authority to override
the said award of the National Lok Adalat on any ground such as that
the signatures of the standing counsel of the Northern Railways on the
said award to be treated as null and void. The Collector in passing the
order dated 22nd December 2015 in effect has acted as an appellate
authority of the National Lok Adalat in holding that since the counsel
for the Railways has appeared without authorization of the Collectorate,
the award cannot be implemented. In view of the aforesaid facts and
circumstances and on the plain reading of the order dated 22 nd
December 2015, we are of the opinion that the said order of the
Collector is without jurisdiction and is unsustainable in law.
Accordingly, the aforesaid orders deserve to be quashed.
12. Now coming to the other relief prayed for by the petitioners in the writ
petition for the implementation of the award of the National Lok Adalat
dated 23rd November 2013, it is important to refer to the provisions of
the J&K Legal Services Authorities Act, 1997. The said Act vide
Section 18 provides for the organization of the Lok Adalat which
include National Lok Adalats. Section 20 of the said Act provides for
the award of the Lok Adalat and that it shall be deemed to be a decree
of the civil court and every award made by the Lok Adalat shall be final
and binding on all parties to the dispute, and no appeal shall lie to any
court against the said order.
13. In other words, according to Section 20, the award of the Lok Adalat is
final and binding on the parties, and it is deemed to be a decree of the
civil court. Accordingly, it has to be executed as the decree of the civil
court. The petitioners cannot invoke the writ jurisdiction of the High
Court to get such decrees implemented. One of the reasons is that a
decree put under execution can always be objected to by the judgment-
debtor by filing objections under Section 47 CPC. Therefore, getting
the award of the Lok Adalat or the decree thereof implemented through
writ jurisdiction would amount to surpassing powers of the executing
court which has the jurisdiction to determine all questions relating to
execution, satisfaction and discharge of the decree after hearing the
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parties concerned. The remedy available to the judgment-debtor to
object to the execution of the decree or to oppose a decree on any
ground whatsoever, may on the ground that the decree is un-executable
cannot be taken away by filing a writ petition for the implementation of
the award where questions relating to execution, satisfaction, discharge
or the executability of the decree cannot be gone into in a summary
manner without affording opportunity to the parties to lead evidence if
necessary.
14. Even though the award of the National Lok Adalat is executable as a
decree of the civil court nonetheless as the award till date has not been
challenged and is intact, the respondents who are for the state
authorities within the meaning of Article 12 of the Constitution of India
are under an obligation to make the payment of the compensation as
awarded to the petitioners. It is not expected of a welfare State to avoid
payment of any amount under a decree on technicality and on the
pretext that the petitioners have not approached the appropriate forum.
In view of the above, we had repeatedly asked Mr Naik, learned counsel
for the railways if the intending party i.e. railways is ready and willing
to make the payment of the compensation as awarded. He has very
fairly submitted that he has no objection in depositing the amount as
awarded but the interest of the railways should be protected till the
controversy with regard to the validity of the aforesaid award or its
execution is adjudicated upon. So far, there is no challenge to the said
award in any forum as has been stated earlier also, but the stand of the
railways that it is invalid and un-executable for various reasons cannot
be fore installed as such objection can always be taken by them at the
time of the execution of the said award as a decree. Accordingly, to
mitigate the hardship of both the parties, in the ends of justice, we direct
the respondent-railway authorities to deposit the full and complete
amount of compensation as per the two awards of the National Lok
Adalat dated 23rd November 2013 with the Registrar Judicial of the
High Court, Srinagar Wing within a period of six weeks from today
which shall be invested in a fixed deposit with nationalized bank to be
paid to the succeeding party subject to the final outcome of the
execution proceedings, if any.
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15. It may not be out of context to point out that the award of the National
Lok Adalat, photocopy of which have been filed along-with the writ
petition discloses that the award has been passed in a very hurried
manner without even mentioning the names of the members that formed
the coram by simply stating that the claim has been settled at Rs. 4.00
lacs per kanal. The Lok Adalat has not even cared to mention the above
figure in words leaving it open for interpolation. It has been stated that
the aforesaid amount is being awarded in accordance with the
settlement arrived at between the parties/counsel for the parties before
pre-Lok Adalat Session. It however fails to mention as to the persons
who represented the parties in the settlement and whether the settlement
was in writing or oral. No settlement has been enclosed with the award.
16. In State of Punjab & Anr. vs. Jalour Singh & Ors. 2008 AIR (SC)
1209, Three Judges Benches of the Supreme Court in respect to award
of the Lok Adalat ruled that they have no adjudicatory or judicial
functions rather purely conciliatory in nature. The references by the Lok
Adalat are determined on the basis of compromise or settlement
between the parties, whereupon the award in terms of the
settlement/compromise is passed. The making of the award is merely
an administrative act of incorporating the terms of settlement or
compromise between the parties by the Lok Adalat in the form of an
executive order and the settlement arrived at between the parties ought
to be signed by the parties and should be annexed to the award of the
Lok Adalat to make it executable as a decree of the civil court.
17. In view of the aforesaid legal position, we are constrained to observe
that the National Lok Adalat had acted in a very casual manner in giving
the award without disclosing the names of the member of the coram,
the persons who represented the parties to the settlement and without
annexing the copy thereof. Accordingly, we direct that hence forth the
Legal Services Authority at the level of the State and District Court
would ensure that the awards of the Lok Adalats are properly drawn
disclosing the names of the presiding officers, participants and if there
is any settlement, the same should form part of the award.
18. In the facts and circumstances as stated above, the order dated 22nd
December 2015 passed by the Collector is quashed and the petitioners
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are set at liberty to apply for the execution of the award of the Lok
Adalat as a decree of the civil court. The deposit as per the award made
before the High Court shall abide by the execution proceedings, if any,
and in the event no execution is initiated within a reasonable time, the
amount shall be refunded to the railways.
19. A copy of this judgment is directed to be placed before the State Legal
Service Authority for circulation to all District Legal Services
Authority and the judicial officers for necessary compliance.
20. The writ petition stands partly allowed as aforesaid.
(VINOD CHATTERJI KOUL) (PANKAJ MITHAL)
JUDGE CHIEF JUSTICE
SRINAGAR
22.09.2021
Altaf
Whether the order is reportable? Yes
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