Jammu & Kashmir High Court
Union Of India (Uoi) vs Ghansham And Ors. on 7 August, 2007
Equivalent citations: 2008(1)JKJ261
JUDGMENT Y.P. Nargotra, J.
1. This Civil 1st Appeal is directed against the award of arbitrator, i.e., District Judge:, Udhampur, appointed in terms of Clause (b) Sub-Section (1) of Section 8 of J & K Requisitioning & Acquisition of Immoveable Property Act, 1968. The Defence Department was in possession of the land measuring 259 kanals 19 ma das, situated at Village Omara, Tehsil & District Udhampur and the same under case No. KAS/7023/LH was sought to be requisitioned for public purposes. The Assistant Defence Estate Officer, Northern Command, C/O 56 APC vide his Letter No. PEND/3090/Acq/ADEO/2 dated 15.4.1986 requested for the acquisition of land on permanent basis under the provisions of J & K Requisitioning & Acquisition of Immoveable Property Act. The J & K Home Department vide Letter No. Home/CL-47/87 dated 1.1.1988 issued no objection for requisition of the land. The Government of India, Ministry of Defence accordingly accorded the sanction on 9.11.1994, whereupon the Home Department of J & K Government on 28.4.1995 issued notices on Form for acquisition of the land comprising in Khasra Nos. 299/255/232, 308/256/232, 304/256/232, 288/227, 287/227, 285/185, 184, 297/229, 309/257/232 pt, 305/255/232, 254/233, 235/236, 237 pt, 238 pt, 237, 238 (all private) and Khasra Nos. 286/185, 306/256/232, 237, 309, 257/232, 237 pt, 292/228, 303/231, 238/310/230, 213 and 211 (state land). The notices were issued to the parties concerned to appear and putforth their case for claiming compensation and submit the copies of sale deeds and other documents in support of their claims before the Deputy Commissioner, Udhampur. The Defence Estate Officer also contested the claims and suggested the compensation payable for the land sought to be acquired to the claimants at the rate of Rs. 54,000/- per kanal of warhal changi land.
2. The Deputy Commissioner, Udhampur after considering all the materials and evidence assessed the compensation for different categories of land at the rate of Rs. 1.30 lacs per kanal for warhal changi, Rs. 1.15 lacs per kanal for banjar kadeem and Rs. 95,000/- per kanal for gair mumkin. He thereafter submitted the assessment of compensation for the said land to Addl. Chief Secretary, Home Department for approval, while directing the Director Defence Estate, Northern Command, Jammu to obtain the necessary sanction from the competent authority and for depositing the assessed amount in his office so that the same could be disbursed to the land owners as per their shares in the land.
3. A draft assessment report was also sent to the Ministry of Defence, Government of India, which, however, approved the rate of compensation as follows:
i. Warhal Changi Rs. 80000/- per kanal ii. Banjar Kadeem Rs. 70000/- per kanal iii. Gair Mumkin Rs. 55000/- per kanal
The claimants did not accept the assessment of compensation at the rates approved by the Government of India and sought the appointment of an arbitrator for determining the fair and reasonable compensation as, according to them, they were entitled to compensation at the rate of Rs. 2.50 lacs per kanal irrespective of the nature of land. As per claimants the land was in the vicinity of Udhampur town and, as such, possessed lot of commercial value. Thus, the Government issued SRO No. 320 dated 20.11.1998 for appointing the District Judge, Udhampur as an ex-officio arbitrator to determine the dispute and make the award and, accordingly, the learned District Judge, Udhampur entered upon the reference.
4. The learned District Judge issued notices to the parties, who filed their objections before him. On the pleadings of the parties, the learned District Judge, Udhampur, the arbitrator, framed the following issues for determination:
1. Whether the rate of land offered as compensation is inadequate and if so what was the market value at the relevant time? OPP
2. Relief.
5. After framing the issues the parties were put to evidence. The petitioners/claimants examined PWs Moti Singh, Yogeshwar Kumar, Vinod Kumar Patwari and Sidarath Dev Chand as their witnesses. Besides them, claimants Ghansham and Balbader Chand also appeared as their own witnesses. The respondent-objector examined only DW Vijay Kumar, SDO as its witness.
6. The learned District Judge after appreciating the evidence of the parties came to the view that the prevailing rate at the time of acquisition of the land was not less than Rs. l 20 lacs per kanal irrespective of the kind of land, whether it was warnal chungi, banjar kadeem or gair mumkin and awarded the compensation accordingly by his award dated 29.3.2002. The UOI being aggrieved of the award is in appeal.
7. I have heard learned Counsel for the parties and perused the record of the case.
8. The contention of learned Counsel for appellant is two fold. Firstly, as per the evidence available on record the assessment of compensation has not been correctly made by the arbitrator. He submits that uniform rate irrespective of the kind of land could not have been assessed by the arbitrator. Secondly, he submits that the instances which have been made the basis for assessment of the compensation by the arbitrator related to small pieces of land which could not be applied to for assessment of the rate for a large chunk of land. He submits that the arbitrator ought to have deducted the development charges from the rate assessed, as it was a large piece of land which required development for being utilized for the purposes for which it was being required.
9. On the other hand, the contention of leaned counsel for claimants is that though from the evidence the claimants had established the prevalent market rate at much higher value than the one assessed by the arbitrator, yet going by the assessment made no fault can be attributed thereto. It has further been submitted chat the question of development of the land was irrelevant because the appellant is in possession of the land since 1951 and is using the same for the purposes it was being acquired after having already developed the same.
10. In order to judge the validity of the findings returned on Issue No. 1, a brief reference to the evidence led by the parties before the arbitrator is necessary.
11. Respondent Ghansham on entering the witness box has stated that the land measuring 111 kanals was allotted to him and to his brothers in the capacity of refugees. The land was already in possession of the Army as a tenant which was being acquired. The market value of the land in the year 1991 was rupees two lacs per kanal; that the land is situated at a distance of 1/2 kilometers from Udhampur Town and number of shops and houses have already been constructed in the vicinity of the land.
12. Respondent Balbadar Chand has stated that he owns 11 kanals 15 marlas of land situated at Umara, which continues to be in occupation of the Army since 1951. According to him also, the market rate of land was Rs. 2.50 lacs per kanal in the year 1995. He has further submitted that the acquired land is situated on the road side which leads to Police Training Academy Udhampur. On being cross-examined he stated that the land is situated at a distance of 1.5 kilometers away from District Court. Number of shops have been constructed near the land by different persons.
13. PW Moti Singh has stated that his one kanal of land situated at Umara was acquired by the Education Department, regarding which the award was. passed by the Collector in the year 1992 and he was paid compensation @ Rs. 60000/- per kanal. According to him, the reference about the said compensation came to be made to the civil court, where it was enhanced from Rs. 60000/- to Rs. 1.60 lacs per kanal and later on on that rate he had received the compensation. He has further stated that the said land which was acquired by the Education Department is just adjacent to the land of claimants which was being acquired. On being cross-examined he stated that the acquired land is situated at a distance of 5/6 jareebs from the National Highway and number of shops have been constructed near the acquired land.
14. PW Yogeshwar Kumar has stated that he purchased one kanal of land situated at Umara in the year 1998 from Smt. Raj Wanti at the rate of Rs. 1.20 lacs. He produced the copy of Sale Deed EXPWYK. He further stated that in the year 1995 the market value of the land at Umara was about Rs. 1.50 lacs per kanal. On being cross-examined he stated that the acquired land was at a distance of 1/2 kilometers from the land which was purchased by him at Umara for construction of a house.
15. PW Vinod Kumar, Patwari has stated that as per mutation No. 618 land measuring 8 marlas has been sold by one Sansar Chand to Romesh for Rs. 32,000/- vide Sale Deed Dated 26.5.1986. One kanal of land bearing Survey No. 28 was sold on 10.4.1989 for Rs. 1.20 lacs, the mutation of which has been attested Under No. 665. As per Mutation No. 597 eight marlas 6 sarsai of land situated at Umara has been sold for Rs. 28,000/-. On being cross-examined he stated that the acquired land is situated near the road which leads to Police Training Academy. The acquired land is in possession of the Army who has raised number of constructions on the said land. He further stated that the land bearing Survey No. 132 is situated at a distance of one or two kilometers from the Academy. Number of shops have been constructed near the acquired land which is hardly at a distance of one or two kilometrs from Udhampur Town.
16. PW Sidharth Dev has stated that Raghbir was his uncle whose land was acquired by the respondents. He was also one of the owners of the land which was acquired by the Union of India at the rate of Rs. 80000/- per kanal. The Collector, however, had assessed the compensation for the same at the rate of Rs. 1.30 lacs per kanal, while the compensation demanded by them was at the rate of Rs. 2.50 lacs per kanal.
17. The appellant in order to controvert the stand of respondents/claimants over the market value of the land in the year 1995 examined only DW Vijay Kumar SDO who was posted as such at Udhampur for the last five years. He stated that the acquired land is in their possession since 1950 which at the request of UOI was acquired in the year 1995. The total land is 259 kanals 19 marlas and the same is in possession of the army since 1950. The land is towards Police Training Academy and is half a kilometer away from the National Highway. According to him, when the land was acquired the compensation was paid by them at the rate of Rs. 80,000/- per kanal for warhal chungi, Rs. 70000/-per kanal for banjar kadeem and Rs. 55000/- per kanal for gair mumkin. However, the Deputy Commissioner (Collector), Udhampur assessed the compensation at the rate of Rs. 1.30 lacs per kanal for warhal chungi, Rs. 1.15 lacs per kanal for banjar kadeem and Rs. 95000/- per kanal for gair mumkin, but the Union of India after taking note of the Sale Deeds for the last three years reduced the same to Rs. 80,000/- per kanal. On being cross-examined, he stated that he did not know whether the Tehsildar Udhampur had assessed the compensation of the acquired land at the rate of Rs. 1.50 lacs per kanal for hail, Rs. 1.40 lacs per kanal for warhal chungi, Rs. 1.35 lacs for warhal mandi, Rs. 1.25 lacs for banjar kadeem and Rs. 1.00 lac per kanal for gair mumkin. He admitted that the land is situated at both sides of the road which leads to Police Training Academy. He also admitted that number of houses and shops have been constructed at the start of this land. According to him, notification for acquisition of the land was issued on 28.4.1995. The Sale Deeds which were taken for consideration by the Deputy Commissioner for assessment of the compensation were pertaining to the years 1995,1989 and 1986. He admitted that more land has been acquired in Umara for which compensation had been paid at the rate of Rs. 1.60 lacs per kanal. He also admitted that military barracks stood constructed on the acquired land since 1950 and the land acquired is meant for construction of offices and residential quarters. The Army acquired the land since 1950 and has constructed quarters and offices on this land.
18. From the above evidence, especially of appellant's own witness it stands established that the land which has been acquired is situated at Umara on the road side which leads to Police Training Academy. The National Highway is also very near to the land and the developmental activities in the land adjoining the land acquired are going on, as many houses and shops have come to be constructed on the road side. It is also admitted case of the appellant that the land was acquired for the purposes of construction of offices and residential quarters. It is also not in dispute that the land in question has been in possession of the Army since the year 1950, whereupon the quarters and offices have already been constructed by the Army. The land acquired was thus to be utilized for construction of quarters and offices by the Army. The best instance for showing the market value of the land is in the evidence of PW Moti Singh, whose one kanal land adjacent to the acquired land came to be acquired by the Education Department in the year 1992 and the compensation paid to him for the said land was at the rate of Rs. 1.60 lacs. The acquisition and payment of compensation for the said land at that rate has not been disputed by the appellant before the learned arbitrator. Even the sole witness of appellant DW Vijay Kumar, SDO on being cross-examined had admitted the payment of compensation for the land acquired at Village Umara at the rate of Rs. 1.60 lacs per kanal. The learned Counsel for appellant without disputing the correctness of the said instance submitted that the same being of a small piece of land could not be applied for assessment of compensation for a large chunk of land. Learned Counsel for respondents, however, argued that since no instance of acquisition of large chunk of land was available, therefore, the same could validly be made the basis for assessment of rate of compensation for the large chunk of land. Thus, according to him, in the year 1992 the market value of the land in the vicinity of acquired land was Rs. 1.60 lacs per kanal. Further, according to him, as undisputedly the developmental activities were going on in the area, therefore, in the year 1995 when the land was acquired it can be presumed that the market value of the same must have arisen and making it to atleast rupees two lacs per kanal.
19. The learned arbitrator, however, has assessed the rate of land at the rate of Rs. 1.20 per kanal, which has been accepted by the respondents/claimants as they have not preferred any appeal against the findings. In these circumstances in my considered opinion the assessment of the compensation at the rate of Rs.l 20 lacs per kanal by the learned arbitrator cannot in any manner be faulted with. The contention of learned Counsel for appellant that as the land acquired was to be developed as such 1/3rd of the amount assessed required to be slashed on account of development charges is without any merit. The land has already been developed by the Army which was in its possession since 1951, as such no developmental charges were required to be slashed. The market value of the land has to be seen at the time of acquisition, i.e., in the year 1995 by taking the nature of land as it was at that time. Undisputedly, in the year 1995 the land stood already developed as offices and barracks stood already constructed and the roads stood already laid. Even otherwise going by the above instance the value of the land could not be less than rupees two lacs per kanal and if the developmental charges are slashed therefrom, the value would have been less than the rate awarded.
20. Learned Counsel for appellant submits that the learned arbitrator should not have assessed the compensation at a uniform rate for all kinds of land. He submits that for assessment of the compensation the nature of the lands ought to have been kept in view. In support of his contention he relies upon a case, entitled, Union of India v. Mangatu Ram , in which their Lordships has held as follows:
3. It is settled legal position that it is the duty of the Court to sit in the arm chair of a willing and prudent purchaser and seek answer to the question whether he would purchase the lands offered for sale with the existing feature, at the same market value proposed by the Court. It is also settled law that though determination involves some guess work, it must have reasonable basis and feats of imagination should be eschewed. It is salutary duty of the Court to award reasonable and adequate compensation. The plan has been placed before us. The Land Acquisition Officer has marked the lands in red colour the lands classified as 'A' and 'B' class lands in green colour.
4. The question that arises for consideration is : whether the belting is necessary in the circumstances of these cases? When a large extent of land under acquisition comprises of lands of several persons and some lands are abutting the main road and some lands are in the interior, the same would not have the uniform rate of market value. Necessarily, reasonable demarcation/classification should be made before determination of the compensation. Accordingly, we justified the classification of the lands into 'A' and 'B'. The Land Acquisition Officer has mentioned the total extent of the land in his respective awards. Since the lands are admittedly abutting the Delhi-Hissar National Highway bypass. The same would necessarily be granted a higher market value that the lands situated in the interior. Accordingly, we are of the that lands situated around 500 yards from the main road should be classified as 'A' class land irrespective of the quality of the land, i.e. whether it is Nehari, Chahi, Banjar Quadium, Banja Jadid or Gair Mumkin, the uniform rate of compensation at Rupees 1,00,000/- per acre would be granted to such lands. For the rest of the 'A' Class lands, the compensation would be at Rs. 60,000/- per acre. Banjar Quadim, Banjar Jadid and Gair Mumkin lands are classified as 'B' class lands and for that land, the compensation at the rate of Rs. 30,000/- per acre would be reasonable, just and adequate compensation.
21. In my considered opinion this authority is distinguishable in view of the facts and circumstances of the present case. In the present case the land was not classified in view of its location on the spot. It was classified as per its quality. The quality of the land would have been relevant only if the same was to be utilized for the agriculture purposes. Where the land is to be utilized for the purpose of construction of offices and quarters it would be irrelevant as to which quality the land possessed. The assessment of market value has to be made by keeping the purpose in view for which the land is to be utilized after acquisition. In the above authority their Lordships approved the acquisition of the land in view of its classification made on the basis of its distance from the main road upon which depended the commercial potential of the land. In the present case it is not so. Therefore, the uniform market rate of the land can validly be applied for assessing the compensation. Thus, the assessment of compensation made by the learned District Judge, Udhampur is found to be just and proper. In view of the above, there is no merit in the appeal. It is as such dismissed. Connected CMP shall also stand dismissed. The claimants shall be paid the compensation as per the market rate assessed by the learned District Judge, Udhampur/arbitrator.