DEFENCE ESTATE Vs. MOHD SULTAN MALIK

JUDGEMENT

(1.) A short but significant question - whether interest under section 28 of the J&K Land Acquisition Act, 1990 (1934 AD) (hereinafter referred to as the J&K Act) is payable from the date of notification under section 4 or the date of declaration under section 6 - is involved in this civil revision. The court below by the impugned order has held that the awardee - decree holder - is entitled to interest from the date of notification under section 4. Contending to the contrary, the Defence Estates Officer - judgment debtor no.2 - has come in revision. The plea is supported by the Collector / Assistant Commissioner, Land Acquisition, Srinagar - judgment debtor no.1 - respondent no.2 herein.

(2.) AS the question involved is a pure question of law it is not necessary to state facts of the case. Suffice it to say that the notification under section 4 of the Act was issued on 15th December 1978 followed by declaration under section 6 on 30th June 1986, award of the Collector and reference to the civil court culminating in judgment dated 2nd February 1998 giving rise to executing case no.3/1998. Application in terms of section 47 of the Code of Civil Procedure was filed on behalf of the petitioner raising a number of objections - one of them was that interest is payable from the date of declaration under section 6. The court below held that interest is payable from the date of taking possession, and though in the present case possession had been taken prior to initiation of the proceedings i.e. notification under section 4 of the Act, but as the decree -holder himself claimed interest from the date of notification under section 4, namely 15th December, 1978, he was entitled to interest @ 6% per annum from that date.

(3.) BEFORE noticing the provisions relating to interest, it may be appropriate to briefly notice the scheme of the Land Acquisition Act in order to decided the question as to whether interest is payable from the date of notification under section 4 or date of declaration under Section 6. The Act provides a complete mechanism for acquisition of land, taking possession thereof and payment of compensation to the land owner. Sub -section (1) of Section 4 provides for publication of preliminary notification. It lays down that whenever land in any locality is needed or is likely to be needed for any public purpose, notification in the manner laid down shall be published. Under sub -section (2) after such notification is made by the Collector in the manner prescribed, it shall be lawful for any officer, either generally or specially authorised by the government in this behalf, and for his servants and workmen, to enter upon and survey the land and to do certain other things as mentioned in the sub -section. Under section 5A any person interested in the land notified under section 4(1) may file objection against acquisition of the land. After hearing the objections and making further enquiry, if any, the Collector shall submit the case for decision of the Government. On receipt of report, if the State Government is satisfied that the land is needed for public purpose, a declaration is made to that effect. Public notice is thereafter issued under section 9 to the effect that the government intends to take possession of the land and that claims to compensation may be made to the Collector. After making enquiry into the objections, if any, the Collector makes an award under section 11. After making the award the Collector may take possession of the land under section 16 which thereafter vests in the State Government free from all encumbrances. The Act contains special provisions relating to emergency acquisition which need not be noticed in the present case. After making the award, under section 32 the Collector is required to tender the compensation determined by him to the persons interested and entitled thereto. If they decline to receive the payment, the Collector is required to deposit the amount in the court to which a reference under section 18 would be submitted. Where the amount of such compensation is not paid or deposited on or before taking possession, section 35 provides for interest on the amount awarded @ 6% per annum from the time of taking possession. Any person feeling aggrieved by the award so made by the Collector meanwhile may apply for reference to the civil under section 18 for determination of compensation. The civil court would then determine the compensation taking into consideration factors specified in section 23 and 24. Section 28 provides for compensation on the excess amount of compensation so determined by the court.