Jammu & Kashmir High Court
Pawan Kumar Sharma Son Of Sh. Ram Dass ... vs Ut Of Jammu And Kashmir Through ... on 27 February, 2024
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
WP(C) No. 2901/2022
Reserved on 14.02.2024.
Pronounced on : 27.02.2024.
Pawan Kumar Sharma son of Sh. Ram Dass Sharma resident of village
Tarore Tehsil Bari Brahmana District Samba
...........Petitioner(s)
Through :- Mr. Pawan Kr. Kundal Advocate
V/s
1. UT of Jammu and Kashmir through Commissioner/Secretary Revenue
Department Civil Secretariat at Jammu
2. Deputy Commissioner Samba Nandini Hills Samba
3. District Collector Land Acquisition care of Deputy Commissioner Office
Samba Nandini Hills Samba
4. N.K.Jain son of Sh. MR.Jain Director Pharose Remedies Ltd. Registered
office at 3rd floor K.K.Tower Civil Lines Jalandhar City Punjab
Through :- Ms Sagira Zaffer Advocate vice
Ms Monika Kohli Sr. AAG
Mr. Rahul Pant Sr. Advocate with
Ms. Anirudh Sharma Advocate
.......Respnodent(s)
Coram:
HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGMENT
1 The petitioner has claimed the following reliefs in this writ
petition:
(i) Mandamus commanding and directing the respondent No.2
and 3 to release the land compensation of the land measuring
two marla falling under khasra No. 140/37 situated on national
highway at village patli Morh District Samba which is owned
by the petitioner and given on lease to respondent No.4; and,
(ii) Prohibition commanding and restraining the respondents
No.2 and 3 from releasing the land compensation in favour of
respondent No.4 which respondent Nos. 2 and 3 are going to
release in favour of respondent No.4 by exceeding their power.
2 The aforesaid reliefs are being claimed by the petitioner on the
plea that he is owner in possession of the land falling under khasra No. 37
min Khata No. 21 and Khewat No. 2 situated at village Patli Samba. Out of
the said khasra number, it is next stated, petitioner has given one kanal of
land to respondent No.4 on lease; regarding which a lease deed was also
duly executed by him before Sub-Registrar, (CJM), Samba. Respondent
No.4 after obtaining the land on lease made improvements in it and raised
construction in front portion of the land to run his commercial activity.
National Highway Authority of India started a project for construction of
Delhi-Amritsar-Katra expressway and widening the National Highway and
in this regard, respondent No.2 issued a public notice on 16.04.2022 for
acquisition of the land at different locations including the land at village
Patli and the land of the petitioner to the extent of two marla was also
mentioned. After the settlement proceedings at village Patli, new khasra
number was allotted to his land as khasra No.140 which was shown in the
notice issued by respondent No.3. Respondents No.2 and 3 prepared the
award of the land to the extent of two marla which was shown at S.No.13 of
the list against khasra No.140 wherein the name of the petitioner has been
mentioned along with the name of respondent No.4. The award was prepared
by respondent Nos.2 and 3 in the name of respondent No.4. The petitioner
submits that respondent No.4, being the tenant of the land, cannot receive
the compensation with regard to the land in question. Petitioner filed three
representations/applications for release of compensation before the official
respondents, but his applications have not been decided.
3 Petitioner is aggrieved of the hostile and arbitrary action of
respondents No. 2 and 3.
4 Respondent No.4, in his objections, disputes maintainability of
writ petition. He submits that petitioner has not approached this Court with
clean hands and has suppressed the material facts by not bringing to the
notice of the Court that the petitioner had entered into an agreement to sell
with respondent No.4 on 17.07.1997 after receiving total sale consideration
agreed for sale of the said land. The possession was handed over to him at
the time of execution of the agreement to sell. It is submitted that in the said
agreement to sell, the petitioner had agreed that he will not have any interest,
right or title over the land in question. Since sale deed could not be executed
immediately, so petitioner executed power of attorney in favour of his
friend, namely, Ajay Kumar Gupta, which was registered before the
Registering Authority. Respondent No.4 was in urgent need of the land as
he had to establish industry and to obtain loan from financial institution, as
such, petitioner through his attorney executed perpetual lease in favour of
Pharose Remedies Ltd, of which respondent No.4 is Managing Director. In
the lease deed, all kinds of permissions have been given by petitioner to
lessee including power to mortgage leasehold rights and it was also provided
that in the event land or any part thereof is acquired by Government or any
Authority, lessee shall have full authority to claim compensation.
Respondent No.4 submits that property in question has been mortgaged to
financial institution from whom he has obtained the loan. It is submitted that
the documents which have been placed on record, i.e., agreement to sell,
irrevocable power of attorney, papers with regard to mortgage of the land
with the financial institutions and also the lease deed, have not been denied
by petitioner who admits their execution.
5 I have heard learned counsel for the parties and have also taken
into consideration the submissions made, grounds taken in the petition,
objections filed by respondent No.4 as also the documents which are being
relied upon by the parties.
6 There is no dispute to the fact that land in question, subject
matter of instant writ petition, is in possession of respondent No.4. Petitioner
in writ petition admits execution of lease deed in respect of land in question
in favour of respondent No.4. Thus, profitable it would be to reproduce
relevant portion of the lease deed hereunder:
"That in the event of land or any part thereof being acquired
by the Government or any other authority, the lessee shall
have full authority to stake such claim and claim such
compensation as may be determined by such authority from
the acquisition/ reacquisition authority, Government or any
other authority under the order of the Government in respect
of the building, machineries plants etc raised in the above
said lease hold land besides the land beneath it".
7 Perusal of the aforesaid condition of the lease deed would
abundantly make it clear that petitioner has agreed that in the event land in
question is acquired, respondent No.4 shall be entitled to receive
compensation not only for the structures but, besides such structures, for the
land beneath as well, so this lease deed gives absolute right to respondent
No.4 to seek compensation for the land as well as the structures which have
been acquired by the official respondents for widening of the National
Highway.
8 So far as issue with regard to maintainability of the writ
petition is concerned, I am of the view that the writ is not maintainable as
the issue regarding payment of amount raised in this writ petition is to be
determined only by the Authority concerned in terms of the provisions of the
National Highways Act, 1956. In this regard, it would be relevant to
reproduce Section 3H of the National Highways Act, 1956 hereunder:
"3H. Deposit and payment of amount.
(1) The amount determined under section 3G shall be
deposited by the Central Government in such manner as may
be laid down by rules made in this behalf by that Government,
with the competent authority before taking possession of the
land.
(2) As soon as may be after the amount has been deposited
under sub-section (1), the competent authority shall on behalf
of the Central Government pay the amount to the person or
persons entitled thereto.
(3) Where several persons claim to be interested in the amount
deposited under sub-section (1), the competent authority shall
determine the persons who in its opinion are entitled to receive
the amount payable to each of them.
(4) If any dispute arises as to the apportionment of the amount
or any part thereof or to any person to whom the same or any
part thereof is payable, the competent authority shall refer the
dispute to the decision of the principal civil court of original
jurisdiction within the limits of whose jurisdiction the land is
situated.
(5) Where the amount determined under section 3G by the
arbitrator is in excess of the amount determined by the
competent authority, the arbitrator may award interest at nine
per cent, per annum on such excess amount from the date of
taking possession under section 3D till the date of the actual
deposit thereof.
(6)Where the amount determined by the arbitrator is in excess
of the amount determined by the competent authority, the
excess amount together with interest, if any, awarded under
sub-section
(5) shall be deposited by the Central Government in such
manner as may be laid down by rules made in this behalf by
that Government, with the competent authority and the
provisions of subsections (2) to (4) shall apply to such
deposit."
9 From a perusal of subsection (3) of Section 3H of the Act, it
clearly transpires that when several persons claim to be interested in the
amount deposited under subsection (1), the competent authority shall
determine the persons who in its opinion are entitled to receive the amount
payable to each of them.
10 Coming to the facts of the instant case, petitioner admits
execution of perpetual lease deed which makes it clear that he has agreed
that it is respondent No.4 who is entitled to claim compensation for the land
in question which may be awarded in the event it is acquired. Once, he has
agreed to it, he cannot turn around and say that it is he who is entitled to
claim compensation.
11 It is pertinent to mention here that petitioner cannot be
permitted to both approbate and reprobate. On one hand he admits execution
of perpetual lease deed, and on other hand he claims to be owner of the same
property with respect whereof he has executed the lease deed in favour of
respondent no.4, besides agreement to sell.
12 It is settled law that a person cannot be allowed to approbate
and reprobate. No party can take stand as per convenience and a party
cannot be allowed to withdraw from the admissions made by it in the
pleadings in respect of the same subject matter.
13 The Courts must keep in mind that the Courts cannot be
converted into a wrestling field, for trial of tricks where the Court has to act
as an umpire. The Courts must effectively intervene and nip the evil of
perjury and false statements in the bud. Where a party takes different stand
in different Courts and/or say at different stages/places to defeat the effort of
other party to get benefit therefrom such an effort must be curbed down by
the Courts effectively by binding him with his earlier statement(s) and his
plea of raising a dispute should not be heard nor entertained. If the parties
are allowed to approbate and reprobate at their sweet will and convenience
and take the Courts for a ride, the whole judicial system shall fail. The
Courts must effectively check such parties, who take inconsistent stand,
according to their convenience. [See: K.S. Patcha v. Arun Sarna, 2008 SCC
Online Del 884; and Prakash Chander Kaushik v. Vishal Timer Traders,
2017 0 Supreme (Del) 2724].
14 Law does not permit a person to both approbate and reprobate.
This principle is based on the doctrine of election which postulates that no
party can accept and reject the same instrument and that a person cannot say
at one time that a transaction is valid and thereby obtain some advantage, to
which he could only be entitled on the footing that it is valid, and then turn
round and say it is void for the purpose of securing some other advantage.
[Vide: Verschures Creameries Ltd v. Hull and Netherlands Steamship Co.
Ltd, (1921) 2 KB 608, 612 (CA); and R. N. Gosain v. Yashpal Dhir (1992) 4
SCC 683].
13 For the foregoing reasons and the laws discussed hereinbefore,
I hold the writ petition is not maintainable and is, as such, dismissed with
connected CM(s). Interim direction, if any, shall stand vacated.
(VINOD CHATTERJI KOUL)
JUDGE
Jammu
27.02.2024
Sanjeev. Secy
Whether approved for reporting? Yes/No
