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Judgment
Back drops of the case are as under;
It appears that Government of Jammu and Kashmir appointed IInd Additional District Judge, Srinagar as Exofficio Arbitrator to determine the
rates of compensation in respect of land measuring 77 kanals 18 marlas situated at Village Sonwar Tehsil Srinagar which stand acquired in terms of
Jammu and Kashmir Requisitioning and Acquisition of Immovable Property Act, 1968.
Uppn entering the reference, the parties causes their appearance and after hearing the parties, the learned arbitrator, IInd Additional District
Judge, Srinagar passed the award dated 31st December, 2002, which shall be hereinafter referred to as impugned award, and held that
claimants/owners are entitled to compensation at the rate of Rs.2.50 lacs per kanal for land measuring 63kanals 17marlas.
Feeling aggrieved of the impugned award, the appellants have preferred this appeal on the grounds taken in the memo of appeal, which can be
aptly and precisely enumerated as under;
That the prevalent market rate as per the sale deeds was Rs.40,000/ per kanal in the year 1979 in Sonwar area. The relevant date for fixing the
rate per kanal is the date of issuance of T notification. The Deputy Commissioner recommended the rate at Rs.65000/ per kanal. Then after lapse
of five years i.e. in the year 1984 the Deputy Commissioner intimated the appellant that the rate per kanal of land is Rs.95000/. The appellant
agreed to pay the compensation at the rate of Rs.60000/ per kanal and the arbitrator was appointed. The IInd Additional District Judge
(arbitrator) has arbitrary, illegally and without power enhanced the rate per kanal to the tune of Rs.2.50 lakhs. The learned arbitrator has passed
the award in terms of the judgment passed by 4th Additional District Judge, Srinagar in case titled Mohammad Sultan Malik Vs. Union of India.
The Collector has fixed rate in the case of Mohammad Sultan Malik at Rs.1.20 lakhs per kanal. The learned arbitrator should have determined the
compensation on the basis of market rate prevalent in the year 1979 and not as per the market rate prevailing on 26* November, 1988 because in
the case of Mohammad Sultan Malik the land has been acquired on 26th November, 1988 while as the land of the respondents was acquired in
1979. The respondents have claimed compensation at the rate of Rs.2.00 lacs per kanal before the arbitrator but the learned arbitrator has on his
own granted the compensation at the rate of Rs.2.50 lacs per kanal.
Mr. Abdul Majid Dar argued that the impugned award is illegal and made a reference of all the grounds made in the appeal.
Mr. Jehangir while rebutting the arguments, argued that the learned arbitrator is within his powers to award more than that what has been
claimed by the respondents. He frankly admitted that the respondents have claimed the compensation at the rate of Rs.2 lacs per kanal. That it is a
fact that notice was issued in the year 1979 but the sanction for acquisition of the land of claimants and Mohammad Sultan Malik has been
accorded on 28th April, 1986. He further argued that award being just award has been rightly passed.
Heard. Considered.
The following points need adjudication :
Whether the land of the respondents/ owners and of Mohammad Sultan Malik were acquired on the same date, despite of the fact that the initial
notification was issued in the year 1979, so far as the land of the respondents/owners is concerned?
Whether the compensation has been rightly award?
Whether the arbitrator has powers to award more than what is claimed?
Before the above said questions will be answered, it is worth while to make mention of the fact, herein, that there is no dispute about the
granting of sanction for the acquisition of the land on 28th April, 1986. The dispute projected is about the facts about which questions (supra) have
been framed.
Now, answering question no. 1. Paraa of the objection read as under;
a/Brief history of the Case: Land measuring 63 kanals 17 marlas (private) stand already acquired with effect from 16.1.1979 under J and K
RAW Act 1968 as the land was previously held on requisition, though the State Government finalized the acquisition proceedings in absence of
forma/ Government sanction to the Acquisition of land which was against the prescribed rules and the Government sanction was accorded vide
No.A/07780/205/ Q3L/ North/I 88/Sd(Lands) dated28.4.1986 (copy enclosed as per appendix 'A'). Form 'J' notification viz. final acquisition
order was issued by the Government of Jammu and Kashmir, Home Department under No.SRO37 dated 16lh January 1979 read with Secretary
to Government Home Department letter No.Cl58/78/dated 16.1.1979 copy enclosed as per appendix 'B'
The form 'J' notification has been issued on 28th April, 1986 as per the objections. Thus the relevant date for assessing the compensation is 28th
April, 1986 as per the para5 of the memo of appeal.
Mr. Abdul Majid Dar failed to explain why the sanction was accorded on 28th April, 1986 when the initial acquisition proceedings were
initiated on 10th January, 1979. It is admitted by the appellant in the objections that the State of J and K started the acquisition proceedings in
absence of formal government sanction. The learned Arbitrator has held that the relevant date for assessing the compensation was the date of
notification 'FormJ' i.e. year 1986 and not the date 10th January, 1979.
The learned Arbitrator has rightly held that the form 'J' notification dated 10th Jan., 1979 was defective and violative of the rules and was issued
prematurely without any sanction accorded by the President of India.
The appellants can not give a slip to its pleadings and is caught by admission in terms of para5 of the memo of appeal referred hereinabove.
Thus, it is hereby held that date of determining compensation was 28th April, 1986 and it was the duty of the Arbitrator to assess and fix the
prevalent rate which a willing buyer would have paid to the willing purchaser on 28th April, 1986.. Thus the date of determination of compensation
of the land of Mohammad Sultan Mali and of respondents/owners is 28th April, 1986. Thus the question is answered accordingly.
Now, dwelling upon question no.2 and 3.
It is admitted that the land owners/respondents claimed compensation at the rate of Rs.2 lacs per kanal but the question is whether the
arbitrator has awarded the compensation at the rate of Rs.2.50 lacs rightly or wrongly. No doubt, it is true that in the case of Mohammad Sultan
Malik Vs. Union of India, the compensation has been awarded at the rate of Rs. 2.50 lacs per kanal and accordingly the learned Arbitrator has
awarded the same amount but the respondents/owners have claimed only Rs. 2 lacs.
Even before the arbitrator, the claimants have claimed that compensation be paid at the rate of Rs.2 lacs in terms of para3 of the rejoinder filed
on 22nd of September, 1989. The judgment referred by Mr. Jehangir reported in AIR 2002 J and K page 115 Union of India Vs. Kama! Kant
Gupta and others does not support the case of the respondents. It has been held in the said judgment that the claimants are not estopped from
claiming compensation at enhanced rate before the arbitrator but the case in hand is that arbitrator has awarded more than that the claimants have
claimed even before the arbitrator. Thus the arbitrator should have awarded only Rs.2 lacs. Thus the respondents are entitled to compensation at
the rate of Rs. 2 lacs per kanal and not at the rate of Rs.2.50 lacs per kanal as has been held by the arbitrator.
Now the question emerges, whether the arbitrator can award compensation more than what is claimed. I am of the considered view that
neither arbitrator nor courts can award more than which is claimed by the claimants.
In Ujjain Vikas Pradhikaran v. Tarachand and another, AIR 1996 SC 2777, the Apex Court has observed as under;
It is true that under Section 22(2) of the Act prior to the Amendment, the Court was prohibited to enhance the compensation in excess of the
amount claimed pursuant to notices issued under Sections 9 and 10 of the act. Since subsection (2) of Section 22 was deleted by Amendment Act
68 of 1984, the limitation on the exercise of the power of the Court was taken away. Nonetheless, it would always be open to a party to claim a
particular amount and having claimed at the rate, the question arise: whether the Court could grant compensation higher than that claimed by the
party? It would be obvious that when a party claims compensation at a particular rate, he assesses the market value of the land at that particular
rate and seeks compensation on that basis. Having assessed the compensation at that particular rate, the question emerges: whether the Court
could grant higher compensation that was assessed by the party? We find the answer in the negative. This principle squarely applies to the facts in
these cases. The party having limited the compensation to Rs.20.000/per bigha in the memorandum of appeal filed in the High Court, it would be
obvious that the respondents claimed that they were entitled to the maximum of the compensation @ Rs.20,000/ per bigha. Thereby the Court was
precluded to award compensation beyond the amount claimed by the party and award in excess thereof would be obviously illegal. The power of
the Court would be confined to difference of the amount awarded by the reference Court and the amount claimed in the memorandum of the
appeal but not in excess thereof.
In Krishi Utpadan Mandi Samiti v. Vanhaiya Lal and others, AIR 2000 SC 3283, the Apex Court has observed as under;
7.Section 25 before its substitution by Act 68 of 1984, mandated the Court not to award compensation exceeding the amount so claimed by the
land owners and not to be less than the amount awarded by the Collector. This very clearly limits awarding of compensation within the amount
claimed. On the facts of the present case it is not in dispute the award itself was given on 27.12.1977 and even proceeding pursuant to referring
order, was concluded on 28.2.1981. i.e. much prior to the aforesaid Amending Act. Thus, on the facts of this case, it is unamended Section 25 to
be applicable and not the amended section. In view of this the peripheral limitation on the Court awarding the compensation, would equally apply
to the high Court exercising its power as the first appellate Court. The case of Gobardhan Mahto v State of 'Bihar (1979)4 SCC 330: (AIR 1979
SC1246) was also a case in which unamended Section 25 was applicable. The Court held (at P. 1247 of AIR):
The short answer to this contention is to be found in the provisions of Section 25 of the Land Acquisition Act. By subsection (1) of that section,
when an applicant makes a claim to compensation pursuant to a notice given to him under Section 9 the amount awarded to him by the Court shall
not exceed the amount so claimed. By subsection (2) of Section 25 when the applicant has refused to make such claim or has omitted without
sufficient reason to make such claim, the amount awarded by the Court shall in no case exceed the amount awarded by the Collector.
Viewed thus the learned arbitrator has illegally and without jurisdiction awarded compensation at the rate of Rs.2.50 lacs per kanal.
The perusal of the pleadings, documents and evidence of the parties disclose that learned Arbitrator has passed well reasoned and speaking
award. But the impugned award is illegal to the extent of awarding the compensation more than what was claimed by the respondents before the
arbitrator.
Having glance of the above discussion, the impugned award/judgment needs to be modified and it is accordingly held that the
respondents/owners are entitled to compensation at the rate of Rs.2 lacs per kanal and not at the rate of Rs.2.50 lacs per kanal. The appeal is
accordingly disposed of.