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Judgment
55 paragraphs · 2,898 wordsRajnesh Oswal, J
Through the medium of this appeal, the appellant has assailed the judgment and decree dated 29.08.2006 passed by the learned Principal District Judge Udhampur (hereinafter to be referred as “the reference Court”), whereby the compensation payable to the owners/respondent Nos. 1 to 40 in lieu of their land acquired under the J&K State Land Acquisition Act, has been enhanced.
The appeal has been filed inter alia on the grounds that the reference Court could not have taken into consideration the sale deed executed for small piece of land for assessing the compensation in respect of big chunk of land and the reference Court has placed reliance upon the sale instances for the year 1995, whereas the notification under section 6 of the Land Acquisition Act, was issued on 05.09.1988. It is also pleaded that the final award was passed by the Collector on 12.11.1995 and the reference was made beyond the period of limitation.
Mr. Vishal Sharma, learned DSGI, submitted that the reference Court has fallen in an error of law while placing reliance upon the instance of sale in respect of small piece of land for determining the compensation in respect of big chunk of land. In support of his contentions he placed reliance upon the judgment of the Hon’ble Apex court in Union of India and others vs. Sh. Chain Singh and others.
Mr Gagan Basotra, learned Senior Counsel, submitted that the reference Court has enhanced the compensation after taking into consideration the compensation paid by the appellant for the land situated at village Rehmbal. He further submitted that the compensation has been enhanced after proper appreciation of evidence led by the contesting respondents, whereas the appellant did not lead any evidence in rebuttal. He further argued that the judgment relied upon by the appellant in case titled, Union of India and others versus Sh. Chain Singh and others (supra), is not applicable in the instant case.
Heard and perused the record.
The respondent No. 41, the Collector vide award dated 12.11.1995 awarded the compensation to the respondents for their land acquired for public purpose situated at village Dilichak, Udhampur, at the following rates:
(a) Hail Rs. 15,000/ per kanal
(b) Warhal Changi Rs. 12,000/ per kanal
(c) Warhal Mandi Rs. 10,000/ per kanal
(d) Banjar Kadeem Rs. 9,000/ per kanal
(e) Gair Mumkin Rs. 7,000/ per kanal.
The solatium at the rate of 15% as well as interest admissible under rules were also ordered to be paid to the contesting respondents.
The respondent Nos. 1 to 40 filed an application with the respondent No. 41 under section 18 of the State Land Acquisition Act, 1990 for making reference to the District Judge for determining the fair and reasonable compensation of the land acquired by the appellants on the ground that insufficient compensation has been awarded to them. The respondent Nos. 1 to 40 demanded the compensation at the rate of Rs. 1 lac per kanal.
It was also stated that the award was not announced in presence of the owners and also that they were not informed about the same. They were asked to collect the compensation from the office of Tehsildar, Udhampur on 27.12.1996 and then the owners made an enquiry and came to know that the award has been passed on 12.11.1995 by the Collector Land Acquisition in absence of owners.
After the application was filed by the respondent Nos. 1 to 40, the Collector made a reference to the District Judge Udhampur under section 18 of the State Land Acquisition Act. The appellant filed objections that the reference is beyond limitation and defended the award by stating that the compensation has been awarded as per the market rate prevailing at that time.
The contesting respondents besides examining Tej Ram, respondent No. 27, Gulab Din, respondent No. 3 (now dead), Prem Nath, respondent No. 7 (now dead) also examined PW- Parshottam Singh-Patwari, PW-Mohan Lal, Patwari, PW-Sham Lal Khajuria, Junior Assistant in Land Hiring Section and PW- Mool Raj, Purchaser of three marlas of land. The appellants did not lead any evidence in rebuttal.
The learned reference Court vide its judgment and decree dated 29.08.2006 directed the appellant to pay the compensation to the contesting respondents at the following rates:
a) Hail Rs. 60,000/ per kanal
b) Warhal Changi Rs. 55,000/ per kanal
c) Warhal Mandi Rs. 50,000/ per kanal
d) Banjar Kadeem Rs. 45,000/ per kanal
e) Gair Mumkin Rs. 40,000/ per kanal.
In addition to the solatium payable at the rate of 15% of the total amount of the compensation, the appellants were also directed to pay interest to the contesting respondents at the rate of 6% per annum from the date when notification under section 4 of the Act (supra) was issued for a period of one year and thereafter at the rate of 10% per annum till final liquidation.
It appears from the record that the appellant did not press the issue of limitation before the reference Court. Before this Court also, the plea of limitation though was pleaded in the memo of appeal but was never raised and argued by the appellant before this Court perhaps because of the reason that the contesting respondents in their application seeking reference have pleaded that they were not intimated about the passing of the award and also that the award was not announced in their presence. Therefore, the only issue for consideration by this Court is whether the learned reference Court has rightly enhanced the compensation payable to the contesting respondents or not ?
In order to determine the above issue, this court deems it proper to have the brief resume of the relevant portions of the evidence led by the contesting respondents only, as no evidence in rebuttal was led by the appellant.
Respondent No. 3 Gulab Din (now dead) stated that the Army had acquired the land in his village. There were fruit bearing and other trees in the land. The National Highway that goes to Srinagar passes through this land. The land in village Sansoo which is adjacent to the land in question, was acquired by the Army. The compensation assessed at the rate of Rs. 10,000/- for the said land, was enhanced to Rs. 70,000/- per kanal and the judgment was upheld by the High Court. The Army also acquired land in village Rehmbal in the year 1995 at the rate of Rs. 75,000/, Rs. 70,000/ and Rs. 65,000 per kanal. In cross-examination, he stated that he purchased the land at Birmu bridge in the year 1990 @ Rs. 70,000/ per kanal.
Respondent No. 7, Prem Nath (now dead) stated that his land situated at Village, Dilichak has been in the possession of Army. His 70 kanals of land was acquired and compensation at the rate of Rs. 8000/- and Rs. 10,000/- per kanal was paid to him, which is not in accordance with the market value of the land. The acquired land is situated near Udhampur at a distance of about half kilometer from the boundary of town area committee. The Jammu and Kashmir National Highway passes through the land. The land is plain. The villages Sansoo and Dhanori are adjoining to village Dilichak. Dewan Chand had sold land at village Dhanori in the year 1987-1988 and the copy of the sale deed is on record. The Army also acquired land at the rate of Rs. 75,000, Rs. 70,000 and Rs. 65,000 per Karnal in village Rehmbal which is situated at a distance of 1 to 2 km from the town of Udhampur. In cross examination, he stated that he has not sold any land because whole of the land of village Dilichak has been acquired by the Army. The village Dilichak is at a distance of 3 kms from Udhampur but half kilometer from the limits of Udhampur.
Respondent No. 27- Tej Ram stated that his land situated at Dilichak has been acquired by the Army. His land was agricultural land. He owns 80 kanals of land and has been paid compensation at the rate of Rs. 10,000 per kanal. The land is situated at a distance of approximately 2 to 2 ½ kms from the Udhampur city. The National Highway Road passes through the middle of this land and the land is situated at both sides of the road. He has also deposed about the compensation of Rs. 70,000/- for a land acquired in village Sansoo, which is adjacent to the land in question. He also deposed about the acquisition of the land in village Rehmbal at the rate of Rs. 75,000 per kanal, Rs. 70,000 per kanal and Rs. 65,000 per kanal and the said land was acquired in the year 1995.
RW- Mohan Lal-Patwari stated that the acquired land was initially in the village Sansoo but after the settlement it has fallen in Patwar halqa Bader. He proved the Khasra Girdawri (EX-PW-ML). He further stated that he had seen the copy of Jamabandi which has been issued by the office of Deputy Commissioner.
RW-Parshottam Singh stated that in the year 1990-1991, Sansoo and Dilichak were in Patwar Halqa Rehmbal. In the year 1993, the Army acquired land at village, Rehmbal vide File No. 36/JKU. That land is at a distance of 2 kms from the land in question towards Jammu side. The Army paid compensation of the said land at the rate of Rs. 75,000, Rs. 70,000, Rs. 65,000 and Rs. 40,000 per kanal. He proved the copy of Aks Shajra (EXPW-PS) and the copy of Khasra Girdawri (EXPW-PS/1). In cross-examination, he stated that the acquired land is at a distance of 5 kms towards Jammu side.
RW-Mool Raj stated that in the year 1988, he purchased 3 marlas of land for Rs. 9000/- vide sale deed dated 11.04.1988 (EXPW-MR). His land is situated at 50 to 60 yards away from the National Highway behind the shops.
RW-Sham Lal Khajuria, Junior Assistant in Land Hiring Section stated that 4 kanals and 6 marlas of the land situated in village Rehmbal was under the tenancy of defence and was subsequently acquired. The compensation was assessed by Deputy Commissioner at the rate of Rs. 75,000 per kanal for Hail, Rs. 70,000 per karnal for warhal mandi, and Rs. 40,000 per kanal for banjar kadim. He proved the assessment of compensation (EXPW-SL). In cross-examination, he stated that while going to Jammu, the land situated in Dilichak comes before the land which was acquired by the Army.
From the evidence brought on record by the respondents, it is proved that the land in question is situated on both the sides of the Srinagar- Jammu National Highway and has high potential commercial value. It is also evident that the acquired land is 2 to 3 kms away from Udhampur city. The contesting respondents have also proved that the Army had acquired the land at Rehmbal at the rate of Rs. 75,000, Rs. 70,000, Rs. 65,000 and Rs. 40,000 per kanal depending upon the nature of the soil. The land acquired in the village Rehmbal is situated at far distance than the acquired land of the contesting respondents. RW Mool Raj has proved that he purchased 3 marlas of land situated at Village Dhanori, which is adjacent to the acquired land, at the rate of Rs. 9000 from Diwan Chand and his land is situated behind the shops.
The contesting respondents had produced before the collector i.e. respondent No. 41, the sale deed of village Dhanori Tehsil Udhampur registered before Sub- Registrar on 20/08/1988 wherein land measuring 7 marlas was sold for a consideration of Rs. 35,000. The Collector refused to consider the said sale deed as the land was sold for some commercial purpose and as the big chunk of land was sought to be acquired in the instant case. The perusal of assessment of compensation (EXPW-SL) reveals that for the land acquired in village Rehmbal, the Deputy Commissioner concerned had determined the rates taking into consideration future development of the area and the great demand of land for residential/commercial purpose as the National Highway passes through the Village. So far as present case is concerned, the Jammu Srinagar National Highway passes through the land acquired by the appellants and it is established fact that acquired land is situated on both the sides of National Highway. As already observed above, the land is situated at less distance from Udhampur as compared to the land acquired in the village Rehmbal. As per the assessment report (EXPW-SL), the Collector had determined the following rates for the land acquired in village Rehmbal:
a. Hail Rs 75,000/ per kanal
b. Warhal Changi Rs 70,000/ per kanal
c. Warhal Mandi Rs 65,000/ per kanal
d. Banjar Kadeem / Gair Mumkin Rs 40,000/ per kanal
Thus, it is evident that land acquired by the respondents in both Village Dilichak and Rehmbal are situated on the National Highway and the land in this case has more potential commercial value being in close proximity to the Udhmapur town than the land in the Village Rehmbal. The huge difference in the market value of both stretches of the land for the purpose of compensation does not appear to be justified. But equally true is that the compensation for the land in both cases cannot be same as the land in Village Rehmbal was acquired subsequently and was less in quantum vis-à-vis land acquired in this case.
In Ali Mohammad Beigh v. State of J&K, (2017) 4 SCC 717, the Hon’ble Apex Court has held as under:
When the lands are more or less situated nearby and when the acquired lands are identical and similar and the acquisition is for the same purpose, it would not be proper to discriminate between the landowners unless there are strong reasons. In Union of India v. Bal Ram [Union of India v. Bal Ram, (2010) 5 SCC 747] , this Court held that if the purpose of acquisition is same and when the lands are identical and similar though lying in different villages, there is no justification to make any discrimination between the landowners to pay more to some of the landowners and less compensation to others. The same was the view taken in Union of India v. Harinder Pal Singh [Union of India v. Harinder Pal Singh, (2005) 12 SCC 564] , wherein this Court held as under :
“15. We have carefully considered the submissions made on behalf of the respective parties and we see no justification to interfere with the decision [Harinderpal Singh v. Punjab State, 1996 SCC OnLine P&H 1243] of the Division Bench of the Punjab and Haryana High Court which, in our view, took a pragmatic approach in fixing the market value of the lands forming the subject-matter of the acquisition proceedings at a uniform rate. From the sketch plan of the area in question, it appears to us that while the lands in question are situated in five different villages, they can be consolidated into one single unit with little to choose between one stretch of land and another. The entire area is in a stage of development and the different villages are capable of being developed in the same manner as the lands comprised in Kala Ghanu Pur where the market value of the acquired lands was fixed at a uniform rate of Rs 40,000 per acre. The Division Bench of the Punjab and Haryana High Court discarded the belting method of valuation having regard to the local circumstances and features and no cogent ground has been made out to interfere with the same.
In our view, in the absence of any contemporaneous document, the market value of the acquired lands of Village Kala Ghanu Pur which were acquired at the same time as the lands in the other five villages was correctly taken to be a comparative unit for determination of the market value of the lands comprising the lands forming the subject-matter of the acquisition proceedings under consideration. …”
(Emphasis Supplied)
The reference Court has relied upon the rates determined for the purpose of land acquired in the village Rehmbal under J&K Requisition and Acquisition of Immovable properties Act but the rates determined by the Reference Court are slightly on higher side taking into consideration the gap between both the acquisitions under different Statutes, as notification under section 6 of Land Acquisition Act was issued in 1988, whereas in case of compensation for land acquired in village Rehmbal, notification was issued in 1993. This Court is of the considered view that compensation is required to be reduced slightly. Accordingly the appellants are directed to pay the compensation to the respondents 1 to 40 at the following rates:
a) Hail Rs. 55,000/ per kanal
b) Warhal Changi Rs. 50,000/ per kanal
c) Warhal Mandi Rs. 45,000/ per kanal
d) Banjar Kadeem Rs. 40,000/ per kanal
d) Gair Mumkin Rs. 35,000/ per kanal
The judgment relied upon by Mr. Sharma, learned DSGI is not applicable in view of the evidence led by the parties.
In light of the above discussion, the judgment and decree dated 29.08.2006 of the reference court is modified to the extent mentioned above.
Appeal stands disposed of accordingly.
Record of the reference court be sent back.