Local Authority May Appeal Against Enhancement Of Land Acquisition Compensation By Reference Court Only After Leave Of Court U/S 50(2): J&K&L HC

The bench comprising Justice M A Chaudhary was hearing a plea in terms of which the petitioner had thrown a challenge to the judgment passed in Reference under Section 18 of the Land Acquisition Act by the Reference court.

The appellant National Highway Authority of India filed the instant Civil 1st Appeal and assailed the same inter alia on the ground that the impugned judgment and decree had been passed by the Reference court while relying on oral evidence without any documentary proof / evidence and, therefore, the result of proceedings was non-est in the eyes of law as the Reference court has come to wrong conclusion by enhancing the compensation from Rs. 8.50 lac + 15% Jabrina per Kanal to Rs. 30 lacs, without any material on record. The appellant further contended that approximately 3700 Kanal of land in District Anantnag for construction of four laning project highway had been acquired at the approximate rate of Rs. 6-8 lacs per kanal, whereas the rate of Rs. 30 lac per kanal, as granted by the Reference court, and therefore was totally unfounded and without any basis.

The appellant further argued that the Reference court without any material on record had burdened the appellant with huge liability on account of enhancement in compensation for land, Sr counsel R A Jan argued.

Challenging the impugned judgment the counsel further averred that on a bare look of the provisions of the National Highways Act, it is evident and apparent that in the case of compulsory acquisition of land, it is the provisions of the National Highways Act, that occupy the field and being a subject specific provision relating to specific and defined subject viz. compulsory acquisition of land for the National Highway Authority,is regarded in law as an exception to and would prevail over general provisions relating to the compulsory land acquisitions under the general law viz. Land Acquisition Act.

Contesting the appeal, Advocate Khurshid Ahmad Ganai emphatically contended that the present appeal is liable to be dismissed as there is no merit in it and in the event of enhancement of the amount of compensation by the Reference court, if the Government does not file an appeal, the local authority can file an appeal against the award in the High Court only after obtaining leave of the Court.

Counsel for the defendant further argued that the present appeal has been filed by the Project Director of the Project Implementation Unit Srinagar of the National Highway Authority of India, who is not competent to file the same in terms of the provisions of Sections 1,2,3,7,15,16,25 and 26 of the National Highway Authority of India Act 1998. The appeal, as such, is not maintainable and is liable to be dismissed at the very outset, the counsel submitted.

Adjudicating upon the matter the bench observed that the Constitutional Bench of the Hon'ble Apex Court in a case titled U.P Awas Evam Vikas Parishad Vs. Gyan Devi & Ors. reported as (1995) 2 SCC 326 while interpreting Section 50(2) of the Central Land Acquisition Act, which is pari materia to Section 48(2) of the local J&K Land Acquisition Act, has held that in the event of enhancement of the amount of compensation by the Reference Court, if the Government does not file appeal the local authority or the Company can file the appeal against the award in the High Court after obtaining leave of the court under the scheme of Land Acquisition Act. The indenting department after passing of the award by the Collector has even no right seeking for the Reference, however, it reserves its right to oppose the claim for enhancement of rate of compensation by the land owners, the bench underscored.

Explaining the law on the subject the bench further observed that It is an admitted fact that the State (now UT) of J&K has not filed any appeal against the impugned judgment/award passed by the reference court, enhancing the compensation in favour of the respondent no. 1/property owner, the appellant (NHAI) as indenting company/authority, in view of the law laid down by the Apex Court in (1995) 2 SCC 326, could file the appeal after craving leave of this court. The appellant, however, has not laid any motion in that behalf and in absence of leave, the appeal on hand is not competent as such, not maintainable, the bench recorded.

Deliberating further on the preliminary objection of the respondent the bench further observed that National Highway Authority of India, which is a 'body Corporate' or in other words the 'Company', has filed the appeal without seeking leave of the court in view of the clear ruling on the subject by a Constitution Bench of the Hon'ble Supreme Court, the appeal filed by the appellant, thus, cannot be termed to be competent being precluded under Section 48(2) of the J&K Land Acquisition Act.

The Appeal on hand, for the aforesaid reasons, fails for being incompetent without seeking leave of the court, in terms of Section 48(2) of the J&K Land Acquisition Act and accordingly the impugned order passed by the Reference Court is upheld, as a result the appeal is dismissed with no orders as to costs, the bench concluded.

Case Title : National Highway Authority of India Vs Ali Mohammad Dar & Ors.

Citation : 2022 LiveLaw (JKL) 124

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