Commandant Indo Tibetan Border vs Kailash Chandra And Others
2022 Latest Caselaw 1379 UK

     IN THE HIGH COURT OF UTTARAKHAND
                 AT NAINITAL

             First Appeal No. 106 of 2014

Commandant Indo Tibetan Border
Police ITBP                                  .....Appellant
                            Versus

Kailash Chandra and Others                  ...Respondents

                             With

             First Appeal No. 91 of 2014

Commandant Indo Tibetan Border
Police ITBP                                    .... Appellant
                            Versus

Sulochana Devi and Others                      ..Respondents



Present:   Mr. Rakesh Thapliyal, Senior Advocate assisted by Mr.
           V.K. Kaparuwan CGSC for the appellant/Union of India.
           Mr. Devesh Ghildiyal, Brief Holder for the State.
           Mr. Pratul Kumar, Advocate holding brief of Mr.
           Lokendra Dobhal, Advocate for respondent no.4
           Mr. Siddhartha Sah, Advocate for the respondent no.5.



Hon'ble Sharad Kumar Sharma, J.

To be precise, these are the two first appeals which have been preferred by the appellants, under Section 54 of the Land Acquisition Act, 1894, by the appellant in whose favour land was acquired were the beneficiary of acquisition:-

(1) In First Appeal No. 106 of 2014 the award, which has been put to challenge is as a consequence of the determination made by the judgment of 20.03.2014, as was rendered by the court of 1st Additional District Judge, Dehradun, in Land Acquisition Reference Case No. 318 of 1990, Kailash Chandra vs. Collector, Dehradun while exercising his powers in a reference proceedings under Section 18 of the Land Acquisition Act. Consequent to the culmination of the proceedings of LA Case No. 318 of 1990, the award was rendered on 20.03.2014 and as per the decree appended to the said award the total quantum of compensation which was determined and was assessed to be payable was Rs. 30,19,39, 485.16 crores (consolidated amount along with other reference cases).

2. In connected First Appeal No. 91 of 2014, which yet again happens to be an appeal under Section 54 of the Land Acquisition Act, 1894, the challenge as given by the beneficiary of the acquisition is to the impugned award which was rendered by 1st Additional District Judge, Dehradun, in Land Acquisition Reference Case No. 308 of 1990, Shyam Sunder Agarwal vs. Collector, Dehradun, as decided on 20.03.2014, and consequently, the decree which has been formulated therein, the amount which has been thus determined to be made payable has been shown to be (30,19, 39, 485.16 Crores). This is the consolidated amount determined by the reference court under

Section 18 of the Land Acquisition Act, as determined in the two reference proceedings referred above.

3. The First Appeal No. 91 of 2014, came up for consideration for admission before the Coordinate Bench of this Court and the Coordinate Bench vide its order of 19.05.2016 had passed the following orders:-

"Meanwhile, the ongoing execution proceedings pursuant to the impugned judgments shall remain stayed."

4. In First Appeal No. 106 of 2014, when the matter was heard at admission stage, the Coordinate Bench of this Court vide an order of 04.07.2017, had condoned the delay, the appeal was admitted, but later on, in the proceedings of the said appeal, when it was considered by the court at the stage of considering the recall application, the order was clarified by the order of 12.03.2019, to the following effect:

"In that view of the matter, while restoring the First Appeal, the interim order already granted by this Court on 19.05.2016 in the connected FA No. 91 of 2014, is modified to the extent that the same would continue to operate subject to the condition that the appellant deposits the entire decretal amount before the reference court within a period of two months from today."

5. In First Appeal No. 91 of 2014, whereby by an interim order of 19.05.2016, the entire amount was stayed the matter was taken up again by this Court and by order of 12.03.2019, the initial order of 19.05.2016, granting a stay order of staying the execution proceedings, was modified to the extent that the execution would continue to remain stayed subject

to the condition that the "appellant deposits the entire decretal amount before the reference court".

6. In that view of the matter the decretal amount, which has been referred therein in the order of 12.03.2019 in either of the appeals would relegate back to the respective total amount, which has been decreed and determined to be payable by the reference court, in a proceedings which was decided under Section 18 of the Act by the present appellants. However, the matter was taken up again and by an order of 22.07.2019 which had been passed in the appeals in question, this Court being conscious of the fact that the acquisition has taken place as back as 1990, and there was a deprivation of a land which was admittedly belonging to the respondent, who were entitled to be paid with the compensation, the 30% of the awarded amount, as deposited by the appellant in compliance of the order of 12.03.2019, which was directed to be disbursed to the claimants, on the production of the certified copy of the order. The relevant part of the order of 22.07.2019 passed in both the above First Appeals, the relevant part of the order, is extracted hereunder:-

"Considering the fact that they have been deprived of the land way back in 1990, and they are still contesting upon the proceedings for the payment of an adequate compensation for the land acquired, it would be in the interest justice that the respondents may be directed to remit with 30% of the awarded amount as deposited by the appellant in compliance of the interim order dated 12.03.2019.

The payment of 30% amount would be ensured to be paid to the respondents within a

period of six weeks from the date of production of certified copy of this order."

7. An identical order was passed in the connected appeal too, but on 11.10.2019, which reads as under:-

"Hence, the interim order dated 12.03.2017 would stand modified only to the extent that the direction of withdrawal of 30% of the amount would only be read vis-à-vis the amount which has already been held up and deposited by the appellant with the reference Court i.e. Rs. 85,31,372.72. It is 30% of the said amount which is to be remitted to the respondent and subject to the aforesaid remittance, the execution of the impugned award shall remain stayed till the next date of listing.

                        Accordingly,      the        Miscellaneous
                Applications stand disposed of."



8.         This order       has been misconstrued by the

appellants and has been sought to be clarified by the claimant/respondent by filing a recall application, as to the direction which were given for the withdrawal of the amount of 30% by an order of 12.03.2019, it would be construed to qua the entire decretal amount rendered by the reference court or as to whether the amount referred in the order of 11.10.2019 i.e. Rs.

85,31,372.72, it would be out of which 30% of the amount has been directed to be remitted.

9. It has been argued by the learned counsel for the recall applicant/respondent, herein that this order of 11.10.2019, deserves to be modified and recalled

because the reference of the amount of Rs. 85,31,372.72/- in fact was nothing, but an amount which was determined in the award, which was rendered by the Special Land Acquisition Officer, in its award, which was determined on 14.06.2019.

10. His argument is that this amount of 30%, which has been directed to be remitted the order of 11.10.2019 referring therein the amount which has determined by the SLO as Rs. 85,31,372.72/- is to be rectified; because as a consequence of the decision which was later rendered by the reference court and particularly when while passing the interim orders, the Court has directed that the entire decretal amount refer to therein would not relate be the amount which was determined by the SLO; but rather it would be the amount, which has been finally determined by the District Judge, while exercising his powers under Section 18 of the Act which constituted to be the part of the amount which has been referred to, in the decree and hence he submits that the order of 11.10.2019 deserves to be rectified and where 30% has been directed to be disbursed to the claimant/respondent. It would be read to be qua the amount which constituted as to be part of the decree and not the amount which was determined by the SLO and the logic, behind it is that the determination which was made by the SLAO as referred in the order of 11.10.2019, loses its significance as soon as the quantification of the actual enhanced amount to be paid to the land losers, has

been determined by the reference court in its judgment of 24.04.2014 and 20.03.2014 respectively, and that is what has been specifically intended to by the Court also, when the Court in its specific terms, while granting the interim order, in modification to the earlier order of the Coordinate Bench, had directed the deposit of the entire decretal amount as directed by the order of 12.03.2019, which would obviously mean that the amount as referred in by the reference court judgment and not the award of the SLAO.

11. This Court is in agreement with the tenacity of argument which has been extended by the learned counsel for the respondent/applicant, hence, in view of the reasons and because of the specific expression given by the interim orders by the Court, where the entire decretal amount have been directed to be deposited, it would be qua the decretal amount referred to by the reference court in its judgment out of which 30% was required to be remitted to the claimant/respondent and the 30% is not be read qua the amount which has been determined by the SLAO to be payable i.e. Rs. 85,31,372.72 because it cannot be read as a decretal amount.

12. In that eventuality while considering the Application No. 17030 of 2019 and 10150 of 2021, filed in each of the respective appeals instead of recalling the order dated 01.10.2019, it would stand modified to the extent that the direction to remit 30% of the amount would be read qua the total amount which constituted

to be the part of the decree which has been rendered by the reference court, that is the consolidated amount of RS. 30,19,39,482.16 and it is 30% of this amount which has to be disbursed to the petitioners in compliance of the subsequent order which was passed by this Court by an order of 11.10.2019.

13. In that eventuality the figure Rs.

85,31,372.72, out of which 30% has been directed to be remitted to the claimants by an order of 11.10.2019 is recalled, and modified and the figure Rs. 85,31,372.72 is to be read as Rs. 30,19,39,482.16 i.e the actual total decretal amount out of which 30% of the amount is to be remitted to the claimants, as directed by the order of 11.10.2019.

14. Accordingly the order of 11.10.2019, as rendered in each of the appeals would stand modified to that extent. Obviously, this 30% deduction would be disbursed only after adjustment of any withdrawal of amount already paid in favour of the claimant/respondent in compliance of the previous orders passed by this Court.

(Sharad Kumar Sharma, J.) 05.05.2022 Nahid