Idol Bhagwati Mata Ashapurni vs Kanshi Ram

This Civil 1st Appeal arises out of a judgment and decree passed by the District Judge, Kathua on 31-10-1996. Under the impugned judgment

/ decree, appellant's suit for recovery of Rs.1,87,143.20p (with interest) instituted against respondent No.1 was dismissed. The suit amount was

received by respondent No.1 as compensation of land acquired by respondents 2 & 3. The appellant-plaintiffs through the civil suit claimed that

they were entitled to whole of the compensation. Trial Court framed the following two preliminary issues : -

1- Whether present suit is not maintainable in view of the provisions of the Land Acquisition Act ? OPD

2- Whether permission is required in terms of S.92 of C.P.C. for filing the suit and for want of the same, the suit is not maintainable ? OPD

Trial Court tried to decide these two preliminary issues. However, the defendant did not press issue No.2 and it was only with respect to issue

No.1 that a finding has been recorded. Trial court held that the civil suit was not maintainable and dismissed the suit. Hence this appeal.

The only question that falls for determination of this court is as to whether the suit was maintainable. Trial Court has roved through certain

judgments and missed the nub of the Land Acquisition Act. There is absolutely no controversy with respect to the Act, (hereinafter called the Act),

being a complete code for determination of matters arising out of land acquisition. A division Bench of this Court on 30-08-2000 has decided an

L.P.A. titled State of Jammu and Kashmir v. Sunil Choudhary, in which the Division Bench has cateogrically held that the Act provides a complete

and foolproof machinery to meet all the exigencies arising out of land compensation and the same admits of no external re-enforcement. However,

all this relates to the proceedings arising out of the Act and this is the intention of their lordships of the Supreme Court in Laxmi Chand and others

Vs. Gram Panchayat, Kararia and others, . In the case before the Supreme Court, validity of the acquisition and of the award was challenged by

filing a civil suit. Obviously, therefore, the Apex Court held that a question which was required to be determined in terms of the Act could not have

been agitated before a Civil Court because by adopting such a course, an alternative and parallel forum was tried to be created. But here the

matter is entirely different. The award has been completed and respondent no.1 was declared to be the person entitled to the award amount. A

question would arise as to whether the finding of the Collector with respect to payment of compensation to a particular person is final and cannot

be challenged before a civil court. A clear answer to the question is furnished by third proviso to section 32 of the Act which relate to payment of

compensation. The proviso reads as under : -

Provided also that nothing herein contrained shall effect the liability of any person who may receive the whole or any part of any compensation

awarded under this act to pay the same to the person lawfully entitled thereto.

I want to place on record that this proviso carves out only an exception to the finality of the award. Mr.Kotwal, submits that section 32 relates

to only those of the cases where a reference in terms of section 18 has been made. I regret my inability to accept that version because section 18

of the Act acts in furtherance of the award passed by the Collector and provides for judicial intervention into Collector's findings under the award.

To me section 18 seems to be the only judicial safeguard available before finalisation and determination of disputes relating to quantum, entitlement

and apportionment of the award amount. The finding of the Collector is subject to further interference by a Civil Court. I lose no time in also

observing that the finding of the Collector, in case of a reference in terms of section 18, merge into that of the District Judge. In case we hold the

above reproduced proviso not to be applicable to cases where no reference is made, then we are hijacking the object of the proviso. By saying

that the nub has been lost, I mean that proviso to section 32 has not been taken into consideration. Even the judgment of the Supreme Court does

not relate to a case where a relief against a person who received the compensation was sought. The Act lays down a procedure for determination

and release of the compensation. Under the aforementioned proviso the person receiving such compensation under the Act has to stand the test of

his entitlement to such compensation. Any person claiming a better entitlement can file a suit before a Civil Court and such suit is not barred.

In this view, I am supported by the following judgment :

AIR 1960 J&K 128

Md. Imram and Others Vs. Mohd. Zafar Momin and Others,

Sarjug Rai Vs. Mst. Maheshwari Devi and Another,

Shyam Rao Vs. Land Acquisition Officer (Spl.) cum-Dy. Collector Singoor Project of Sanga Reddy and others,

I, therefore, set aside the impugned finding and hold that the suit is maintainable. Trial court shall proceed ahead with other issues in accordance

with law. Learned counsel for the parties are directed to appear before the Trial Court on 23-10-2000.