Jammu & Kashmir High Court
Collector Land Acquisition And Others vs Sham Lal & Ors on 18 November, 2022
Author: Sanjay Dhar
Bench: Sanjay Dhar
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
MA No. 167/2009
IA No. 247/2009
In
MA No. 78/2006
IA No. 100/2006
Collector Land Acquisition and others ....Appellant(s)
Through :- Mr. S.S. Nanda, Sr. AAG.
V/s
Sham Lal & ors. ....Respondent(s)
Through :- Mr. L.K. Sharma, Sr. Advocate with Mr. Mohit
Kumar, Advocate in MA No. 167/2009.
None for respondents in MA No. 78/2006.
Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1. Through the medium of this common judgment, both these two appeals filed by the Collector Land Acquisition against two separate judgments, one dated 17.05.2008 and the other dated 12.09.2005 passed by learned District Judge, Udhampur, are proposed to be disposed of. Both these appeals give rise to same question of law as such, the same are being taken up together for their decision.
2. Vide CIMA No. 78/2006, Collector Land Acquisition, Udhampur has challenged the judgment dated 12.09.2005 passed by the learned District Judge, Udhampur in a reference under section 18/31 of Jammu and Kashmir Land Acquisition Act, 1990 whereby the respondents have 2 MA No. 167/2009 IA No. 247/2009 In MA No. 78/2006 IA No. 100/2006 been held entitled to full amount of compensation for the land that has been acquired for the purpose of construction of by-pass road in village Barrian Tehsil and District Udhampur.
3. Vide CIMA No. 167/2009, Collector Land Acquisition, Udhampur has challenged the judgment dated 17.05.2008 passed by the learned District Judge, Udhampur whereby the respondents have been held entitled to full compensation in respect of land that has been acquired for construction of Govt. Middle School at village Sajalta.
4. The common question of law that arises for determination in both these appeals is as to whether the allottees of land under Govt. Order No. LB/7-C of 1958 dated 05.06.1998 on whom proprietary rights have been conferred under Section 8 of the Jammu and Kashmir Agrarian Reforms Act, 1976 are entitled to full compensation in a case where their land has been acquired in terms of the Jammu and Kashmir Land Acquisition Act, 1990.
5. The factual aspects arising in these two appeals are not in dispute. The predecessors-in-interest of the respondents in both these appeals were allotted the State land in terms of Govt. Order No. LB/7-C of 1958 dated 05.06.1958 and afterwards the allottees of the land were conferred the ownership rights of the allotted land in terms of Section 8 of the Jammu and Kashmir Agrarian Reforms Act, 1976. The lands, which are the subject matter of these two appeals, were acquired by the Collector for the different public purposes as mentioned hereinbefore and two different awards came to be passed by the Collector. 3 MA No. 167/2009 IA No. 247/2009
In MA No. 78/2006 IA No. 100/2006
6. After assessing the compensation in both the cases, the Collector has held the respondents entitled to one-third of the assessed compensation in respect of their acquired land on the ground that in terms of Circular No. REV (L-B) 10/80 dated 23.02.1980, the allottees are entitled only to one-third share of the total compensation. The respondents feeling aggrieved of the amount of compensation to which they have been held entitled by the Collector sought a reference to the learned District Judge, Udhampur and accordingly, the reference was made by the Collector to the learned District Judge in both the cases.
7. The learned District Judge, Udhampur vide the impugned judgments, after noticing several judgments passed by this Court, has taken a view that the respondents are entitled to full compensation because of the fact that proprietary rights in respect of the acquired lands had been conferred upon them.
8. Heard learned counsel for the parties and perused the record.
9. Mr. S.S. Nanda, Sr. AAG appearing for the appellant-Collector has vehemently argued that the issue to be determined by the learned District Judge, Udhampur was as to whether the compensation assessed by the Collector was as per the prevailing market rate and the scope of reference was limited to this extent but the learned District Judge, Udhampur in both the cases has travelled beyond the scope of reference by dealing with an issue, which was not referred to the Court. He has further contended that the lands, which are the subject matter of the appeals, had admittedly been allotted in favour of the predecessors-in- interest of the respondents in terms of Govt. Order No. LB/7-C of 1958 4 MA No. 167/2009 IA No. 247/2009 In MA No. 78/2006 IA No. 100/2006 dated 5th June, 1958 and such type of land falls within the category of land defined in Schedule-II of the J&K Agrarian Reforms Act, 1976. According to the learned counsel, as per the provisions contained in Section 3 of the Jammu and Kashmir Agrarian Reforms Act, 1976, the provisions of the said Act do not apply to categories of land specified in Schedule-II of the said Act. Taking his argument further, learned counsel submitted that once the land, which is subject matter of the present appeals, was beyond the purview of the provisions of the Agrarian Reforms Act, mutations under section 8 of the said Act in favour of the predecessors-in-interest of the respondents in respect of the said land could not have been attested and even if said mutations have been attested, the same are non-est in the eyes of law, which do not confer any right upon the respondents and their predecessors-in- interest.
10. Mr. L.K. Sharma, learned Senior counsel appearing for the respondents in MA No. 167/2009 has submitted that once the predecessors-in- interest of the respondents were conferred proprietary rights in terms of Section 8 of the Agrarian Reforms Act, 1976, the respondents became entitled to full compensation as the land ceased to be the one specified under Schedule-II of the Jammu and Kashmir Agrarian Reforms Act. He has further submitted that the mutation attested in favour of the predecessors-in-interest of the respondents is intact and the same has never been challenged, therefore, their title to the land in question cannot be re-opened at this stage.
5 MA No. 167/2009IA No. 247/2009
In MA No. 78/2006 IA No. 100/2006
11. The first contention that has been raised by the learned counsel for the appellants is that the learned District Judge, Udhampur in both the cases has travelled beyond the scope of reference inasmuch as it was not open to the learned District Judge to determine as to whether the respondents were entitled to whole of the compensation. In this regard, it is to be noted that the reference court in terms of the reference was required to determine the adequacy of the quantum of compensation that was awarded to the respondents as per the award of the Collector.
12. The question whether the respondents were entitled to whole of the compensation or one-third of the compensation as was awarded by the Collector in their favour, would certainly be covered within the purview of determination of quantum of compensation. Therefore, the contention of learned counsel for the appellants that the reference court has travelled beyond the scope of reference is without any merit.
13. So far as the second and main contention of the learned counsel for the appellants is concerned, it is to be noted that admittedly, the land in question in both the cases was allotted to the predecessors-in-interest of the respondents in terms of Govt. Order No. LB/7-C of 1958 dated 5th June, 1958.
14. As per the provisions contained in the Jammu and Kashmir Agrarian Reforms Act, 1976, land allotted under the aforesaid Govt. Order finds its mention in Schedule-II of the Act and the said land in terms of Section 3 of the Act is outside the purview of the provisions of the Agrarian Reforms Act. Learned counsel for the appellants is right in submitting that mutation under Section 8 of the Agrarian Reforms Act 6 MA No. 167/2009 IA No. 247/2009 In MA No. 78/2006 IA No. 100/2006 could not have been attested in favour of the predecessors-in-interest of the respondents in respect of the land in question as the said land was exempted from application of the Agrarian Reforms Act, 1976.
15. There is, however, yet another aspect of the matter, which is required to be noticed. The mutations under Section 8 of the Agrarian Reforms Act, 1976 in respect of the lands, which are subject matter of the two appeals, were attested in favour of the predecessors-in-interest of the respondents decades back but nobody has questioned the attestation of these mutations. None of the Revenue Authorities have, at any point of time, declared these mutations as illegal or non-est. The mutations as such continue to be intact and after the death of predecessors-in-interest of the respondents even the mutations of inheritance in respect of the lands in question stand attested in favour of the respondents. Thus, the character of the land, that was in the hands of the respondents at the time when the same was acquired, had undergone change inasmuch as it had ceased to be the land acquired under Govt. Order No. LB/7-C o.f 1958 dated 5th June, 1958 as proprietary rights in respect of the said land had vested in favour of the predecessors-in-interest of the respondents and after their death in favour of the respondents by virtue of inheritance.
16. Having held so, it was not open to the appellant-Collector to apply the instructions contained in Circular No. REV LB dated 23.02.1980 as also the provisions contained in para (4) of Schedule-III of the Jammu and Kashmir Agrarian Reforms Act, 1976, so as to restrict the quantum of compensation in favour of the respondents to only one-third of the 7 MA No. 167/2009 IA No. 247/2009 In MA No. 78/2006 IA No. 100/2006 compensation assessed. This is so because the land in question had ceased to be the land defined under Schedule-II of the Jammu and Kashmir Agrarian Reforms Act, once the mutation of inheritance after attestation of mutation under section 8 of the Agrarian Reforms Act was attested in favour of the respondents.
17. The learned District Judge, Udhampur in both the cases has rightly relied upon the judgment of this Court in the case of "Lal Chand and ors vs. Collector, Land Acquisition Northern Railway, Jammu and anr, 2000 KLJ 238 wherein this Court has, while dealing with a case involving the land of similar nature as is the subject matter of instant appeals held that the land owners are entitled to full compensation and not one-third.
18. Apart from the above, even if it is assumed that the mutations under section 8 of the Agrarian Reforms Act in the instant case are non-est in the eyes of law still then by virtue of Govt. Order No. S-432 of 1966 dated 31st of June, 1966, all those persons, who have been allotted land under Govt. Order No. LB/7-C of 1958 dated 5th June, 1958, have been conferred ownership rights in respect of the allotted land. Thus, by virtue of the said Govt. Order, the respondents have otherwise been conferred the ownership rights in respect of the acquired land. Therefore, they cannot be deprived of full compensation for the said land.
19. For the foregoing reasons, I do not find any ground to interfere with the impugned judgments passed by the learned District Judge, Udhampur. 8 MA No. 167/2009 IA No. 247/2009
In MA No. 78/2006 IA No. 100/2006 The appeals lack merit and are dismissed accordingly along with connected applications.
(SANJAY DHAR) Judge JAMMU ____/11/2022 NARESH/PS Whether order is speaking: Yes/No Whether order is reportable: Yes/No