Jammu & Kashmir High Court - Srinagar Bench
Collector Land Acquisition vs Collector Was Not Taken By Him In His ... on 3 February, 2010
IN THE HIGH COURT OF JAMMU & KASHMIR AT SRINAGAR C. 1. Appeal No. 86 of 2008 C. 1. Appeal No: 87 of 2008 Collector Land Acquisition Petitioners Bashandgani Nihama Qazigund Baramulla Ab. Majeed Wani & anr Qazigund Baramulla Respondents !Mr. G. A. Lone, Advocate ^Mr. M. Y. Bhat, Advocate Mr. Javaid Abdullah, Advocate Honble Mr. Justice Mohammad Yaqoob Mir, Judge Date: 03/02/2010 :J U D G M E N T:
By medium of these two Civil First Appeals judgment (award) and decree dated 14.5.2008 passed by Learned Principal District Judge, Pulwama, is assailed on the ground of being illegal and based on mis-appreciation of evidence. By virtue of judgment impugned market value of the land acquired has been fixed at Rs.2.50/- lacs per kanal. From within the acquired land regarding 3 kanals 10 marlas the market value has been fixed at Rs.5/ lacs per kanal when as per award issued by the Collector, the market value of the land has been fixed on the basis of kind of soil of the land i.e. Abi Awal, market rate has been fixed as Rs.1.20/ lacs per kanal whereas for Bunjar Qadeem and Gairmumkin rate has been fixed at Rs.60,000/ per kanal. In addition escalation @ 10% has also been allowed in the award.
Aggrieved thereof, two separate appeals have been preferred, one (CIA No.86/2008) against the land owners i.e. inhabitants of Nihama regarding whose land market value has been fixed at Rs.2.50/ lacs per kanal whereas another appeal (CIA N o.87/2008) has been filed against the respondents, namely, Abdul Majeed Wani & anr. because in respect of their land measuring 3 kanals 10 marlas rate has been fixed as Rs.5/ lacks per kanal.
The judgment and decree being impugned in both the appeals, therefore, both the appeals stand clubbed and taken up together for disposal.
The factual matrix which has given rise to the present litigation in nutshell is required to be noticed:
The Government of India Department of Railways has decided to construct Broad Gauge Rail line from Qazigund to Baramulla. In connection therewith, land for railway track was also required to be acquired which include acquisition of land for such purpose situated in village Nihama Tehsil & District Pulwama. The indenting department i.e. Northern Railway earmarked the land on sport measuring 106 kanals and 10 marlas. The same was notified by the Collector in terms of Section 4(1) of the Jammu and Kashmir Land Acquisition Act (hereinafter for short referred to as the Act) on 2.5.2000. Subsequently due to change of alignment, corrigendum was issued where-under acquisition of land was restricted to 104 kanals and 2 marlas. On proper publication and publicity no one opposed to the acquisition of the said land, therefore, hearing in terms of Section 5-A of the Act was not required. Consequently notification regarding declaration of the land needed for public purpose in terms of Section 6 of the Act was issued and the Collector was asked to take order for acquisition of the land.
The Collector thereafter has issued public notice as required in terms of Section 9 of the Act to the persons interested and the notice was also got served upon the indenting department as required in terms of Section 9-A of the Act. However, no objection was filed by the either side i.e. indenting department or the other interested persons.
The amount of compensation was required to be tentatively assessed. Since the land owners could not produce any sale deed or any other record as to what was the prevalent rate on the date of declaration issued under Section 6 or for the years preceding thereto, resultantly question of fixing of market value of the land presented a difficulty. In order to overcome the same, it has been observed by the authorities concerned that the land located in estate Nihama is situated in between the estate Khadermoh and Marval. Regarding estate Khadermoh and Marval, a committee headed by Deputy Commissioner, Pulwama has determined the compensation at par with the rates awarded in respect of land required for construction of Railway Station, Pampore and Kakapora with 10% escalation. For the land at Pampore and Khadermoh, as earlier acquired, the rate was fixed as under:-
1) Orchard =Rs.1,30,000 (P.K) 2) Abi Awal, Numbal, Abi Wari, Maidani =Rs.1,20,000(P.K) 3) Banjar Qadeem/ Baidzar/Safadzar =Rs.60,000 (P.K)
Based on said assessment regarding the land at Nihama, rates were proposed as under:
1) For land soil classification of which is Abi Awal/Numbal/Abi Wari/Maidani =Rs.1,20,000 (P.K) plus escalation 10% and Jabirana 15%
2) For land soil of which is recorded as Banjar Qadeem, Baidzar, Safadzar & Gairmumkin.
=Rs.60,000 (P.K) plus escalation 10% and Jabirana 15% Based on the said proposed assessment, 80% of the amount of compensation so assessed has been paid to the genuine interested land owners and possession of the land has been handed over to the indenting department as warranted under Section 17-A of the Act. The acquaintance roll would clearly indicate that the interested persons (land owners) have received 80% of the compensation so assessed without any protest.
The amount of compensation was worked out at Rs.1,50,20,610(rupees one crore fifty lacs twenty thousand six hundred ten) being beyond the pecuniary jurisdiction of the Collector, same was forwarded to the higher authorities for approval. The approval has been conveyed by the Government Revenue Department but 10% escalation has not been allowed. Though the Railway Collectorate, Srinagar had again recommended the case with the request for re-consideration of the decision vis-`-vis disallowing 10% escalation but it was conveyed to them that there is no such provision in the Land Acquisition Act for Collector to review his award. The escalation proposed by the Collector is beyond the provisions of the Act.
The final award vis-`-vis 104 kanals and 2 marlas has been passed wherein position of the tentative award and final award has been reflected. Same is also reflected here-under:-
A/ Rate/Compensation amount awarded tentatively by the Collector Railway, Srinagar
1. 93 kanal 16 marlas Abi Awal/Maidani @ Rs.1,20,000/- Per kanal Rs.1,12,56,000/-
2. 10 kanal 6 marlas Banjriqadeem/Gairmumkin @ Rs.60,000/- per kanal Rs.6,18,000/-
3. Total item No.1+2 Rs.1,18,74,000/-
4. Escalation 10% on item No.3 Rs.11,87,400/-
5. Total item 3+4 Rs.1,30,61,400/-
6. Jabirana @ 15% on item No.5 Rs.19,59,210/-
7. Total item 5+6 Rs.1,50,20,610/-
B/ Rate/Compensation amount to be awarded/apportioned finally as per the approval
1. 93 kanal 16 marlas Abi Awal/Maidani @ Rs.1,20,000/- Per kanal Rs.1,12,56,000/-
2. 10 kanal 6 marlas Banjriqadeem/Gairmumkin @ Rs.60,000/- per kanal Rs.6,18,000/-
3. Total item No.1+2 Rs.1,18,74,000/-
5. Jabirana @ 15% on item No.3 Rs.17,81,100/-
7. Total item 5+6 Rs.1,36,55,100/-
The order of reference as made by the Collector, Pulwama is indicative of the fact that the Collectorate had been asked to disburse the balance amount of 20% as per entitlement of the persons concerned but the Zamindars (interested persons) though were called for receiving the same but they did not turn up. Later on they had filed an application seeking reference and also while doing so received the balance compensation amount of 20% under protest.
Perusal of the record indicates that the interested persons (land owners) executed a Special Power of Attorney where-under they have authorized Abdul Gani Bhat, Abdul Aziz Lone, Ghulam Qadir Dar and Ghulam Ahmad Mir (respondent in CIA No.86/2008) to represent them before the Court with reference to reference proceedings for acquisition of their land by the Collector Land Acquisition. It is the said respondents who firstly moved an application on 4.8.2004 before the Collector praying therein that the determination of the valuation of the land may be referred to the Court of law for proper fixation. Subsequently one more application has been filed on 10.8.2004 by the same respondents again with same prayer, however, more details have been incorporated in the application to the effect that the land in the first instance was valued at Rs.1.50/ lacs per kanal when the prevalent rate on spot was more than Rs.2.50/ lacs per kanal. It is also added that the rates fixed in village Nihama for acquisition were Rs.1.75/ lacs per kanal. It is also averred that in the close proximity of the land of the applicant, the following rates have been given:
1) Abi Awal/Abi Wari =Rs.2.70/ lacs Per kanal 2) Maidani, Baghi Abi, Baghi Khushki. =Rs.4.00/ lacs per kanal 3) Banjar Qadeem & Gairmumkin. =Rs.2,02,500/ per kanal
In another patch of land which is in close proximity of the land of applicants, compensation has been granted at the rate of Rs.10/ lacs per kanal.
Based on these two applications the Collector has made reference on 25.9.2004 mentioning therein that when the tentative award was made, the rate fixed was Rs.1,20,000/ per kanal for Abi Awal etc. Rs.60,000/ per kanal for Banjar Qadeem etc. plus 10% escalation and 15% jabirana. Out of total amount of compensation of Rs.1,50,20,610/, 80% were received by the owners without any protest and possession was also handed over to the indenting department.
It is out of total land measuring 104 kanals and 2 marlas, 3 kanals 10 marlas belonged to Abdul Majeed Wani and Abdul Ahad Wani (respondents in CIA No.87/2008). The said respondents moved a separate application on 1.9.2004 before the Collector for referring the matter of compensation to the Court. The Collector also made another reference on the basis of said application, though two references were not required to be made.
Be it as it is, both the two references have been clubbed and disposed of together.
The learned District Judge on the basis of reference and objections filed by the Collector in reference on 12.5.2005 framed the following issues:-
1. Whether the amount of compensation awarded by the Collector in the present case to the land owners is not adequate()OPP)
2. Relief In the second reference the learned District Court on 17.10.2005 framed the following issues
1. Whether the amount of compensation fixed by the Collector is in-adequate as per the market rate which was prevalent at the relevant time (OPP)
2. In case Issue No.1 is proved in affirmative, what is the just and proper compensation to which the applicants are entitled to (OPP)
3. Relief.
Since both the references were clubbed, therefore, evidence has been led. The respondents in support of their case have placed on record the documents such as (1) sale deed dated 2.12.2004 for land measuring 10 marlas situated at Kandizal shown to have been sold in lieu of Rs.3,50,000/ (2) sale deed dated 10.12.2004 for land measuring 10 marlas situated at Kandizal shown to have been sold as against the cost of Rs.4,50,000/, (3) communication dated 23.3.2005 addressed by the Collector Land Acquisition to the Executive Engineer R&B Division, Pulwama. In terms of said communication R&B Department has acquired land measuring 3 kanals 10 marlas situated in estate Khadermoh for widening of Pulwama Pampore road. In private negotiations the rate of land was fixed as Rs.2.50,000/ per kanal.
In addition the respondents have produced as many as 6 (six) witnesses, namely, Aziz Lone, Ghulam Ahmad Mir, Majeed Bhat (respondents) and Sonaullah, Khazir Mohammad Bhat and Syed Parvaiz (Girdawar). In opposition appellants have produced only one witness i.e. Mohammad Rajab Collector.
In the factual backdrop as precisely narrated hereinabove, the arguments were advanced by the learned counsel for the appellant whereas counsel appearing for the respondents in both the appeals did not appear so on conclusion of arguments of the counsel for appellant, case was reserved. Later on, on the same date Advocate Mohammad Yousuf Bhat submitted that since the matter has been reserved, he may be given liberty to file written arguments which he was permitted and subsequently one set of written arguments on behalf of respondents in Appeal No.86/2008 and another set of written arguments on behalf of respondents in Appeal No.87/2008 were filed by the respective counsels i.e. Advocate Mr. M. Y. Bhat and Advocate Mr. Javaid Abdullah.
Considered.
The first contention raised on behalf of the appellant was to the effect that the reference is not maintainable at all because the respondents had accepted 80% of the compensation without protest; accepting of 20% of compensation under protest was not permissible.
This contention has to be out rightly rejected. It is an admitted fact that when the land was acquired and in view of urgency, the authorities had resorted to Section 17 of the Act. The possession was taken over and at the same time 80% of the compensation was paid to the land owners. Though the land owners contended that they had received that 80% compensation also under protest but same is not correct. They had accepted it without protest. But an important circumstance is that the rate of the land was fixed as Rs.1,20,000/ per kanal for Abi and Rs.60,000/ for Maidani, Banjar Qadeem which was based on the assessment made by the Committee headed by the Deputy Commissioner as at the relevant time prevalent market rates were not known. The Committee so constituted had taken into consideration the compensation which had been awarded for acquisition of land in Pampore and Kakapora for construction of Railway Station which was according to the said rate but they had granted 10% escalation. The total amount of tentative award was Rs.1,50,20,610/. 80% of the same was accepted by the land owners but subsequently when the matter had gone to the Government for approval, the escalation of 10% was deducted which appears was not acceptable to the land owners, therefore, they received the balance 20% under protest. In case there would not have been deduction of 10% escalation, this litigation might not have been launched. The land owners had accepted 80% compensation without protest but when the final award was passed and the amount was reduced by 10% as proposed in the tentative award, the land owners had every right to object as that fixation of rate was not acceptable to them; therefore, they have exercised their right at appropriate time. Their non opposition to the amount of compensation as fixed and proposed in the tentative award is quite clear as when they were put on notice in terms of Section 9 and 9(a) of the Act, they did not object. Therefore, acceptance of entire amount of compensation in view of deduction of escalation of 10% is deemed to be received under protest. Hence reference so made could not be said to be non maintainable.
The next question which has cropped up for consideration is as to whether the amount of compensation awarded is just and reasonable.
In this connection on behalf of appellant it is contended that no evidence was available on record which would justify awarding rate of Rs.2,50,000/ per kanal vis-`- vis entire chunk of land.
Buttressing this contention learned counsel would contend that the Reference court has taken into consideration the rate as recorded in sale deeds but has ignored the fact that the said sale deeds have been executing in the year 2004 when rate for the land acquired in the instant case is in the year 2000, so whatever was the rate prevalent in the year 2000 that had to be taken into consideration.
Secondly the two sale deeds as relied on, one dated 2.12.2004 and another dated 10.12.2004, are regarding small strip i.e. 10 marlas each so the rate prevalent in village Kandizal in the year 2004, that too for a small strip of 10 marlas, by no proportion could be taken as a rate for huge chunk of land measuring 104 kanals and 2 marlas. In addition 3 kanals 10 marlas of land as acquired by private negotiation for widening of road at Khadermoh have been purchased at the rate of Rs.2.50,000/ lacs per kanal in the year 2005.
This contention of the learned counsel has substance and is of prevailing force. It is true that the compensation to be awarded must be just and reasonable. It must neither be a windfall nor must be a pittance. The land owners whose land has been acquired may have a desire to get as much of compensation as possible. Sky can be a limit for them but that desire has to be controlled by reasonableness.
It has emerged from the record that at the time of declaration issued under Section 6 of the Act in the year 2000, the land owners have not been able to produce any such document which would show the rate prevalent in the year 2000 or for a period of 3 years earlier to that, so they appear to have been satisfied with the award of compensation as proposed in the tentative award based on which without any objection they had received 80% of the awarded amount. The deduction of 10% escalation has in fact prompted the land owners to claim higher compensation and in the process have collected the documents such as two sale deeds dated 2.12.2004 and 10.12.2004 and communication showing acquisition of land by private negotiation @ Rs.2.50,000/ per kanal in the year 2005 at Khadermoh, admittedly situated adjacent to the general road widening of which was required. If these three documents are taken into consideration, these documents by itself would show as to what can be the prevalence of market rate in the year 2000. In 2004 10 marlas of land at Kandizal sold at the rate of Rs.3,50,000/ and in the same month, same year and in the same village another 10 marlas sold at the rate of Rs.4,50,000/ would itself indicate that the categories of land based on kind of soil, site and productivity have to be assessed separately, so compensation on uniform rate per kanal is not permissible.
On the basis of three documents as relied on by the respondents before the Reference Court present a position which warrants to hold that the rate proposed by the Committee headed by the Deputy Commissioner for the land situated in village Nihama is quite reasonable. The rate fixed by the learned Reference Court on the basis of these documents coupled with the statements of witnesses as produced by the respondents is totally outcome of mis-appreciation of evidence and is totally based on surmises and conjectures. The concept of just and reasonable compensation has been observed in breach.
It is worth to be noted that out of the acquired 104 kanals and 2 marlas, 3 kanals and 10 marlas belonging to respondents Abdul Majeed Wani and Abdul Ahad Wani, without any basis have been valued at Rs.5/ lacs per kanal. Learned Reference Court has fixed the rate of Rs.2,50,000/ per kanal for the entire land excluded 3 kanals 10 marlas regarding which Rs.5/ lacs per kanal has been fixed, which has no basis.
For justifying fixation of such rate, learned Reference Court while discussing the evidence and the documents has opined that when the purpose of acquisition is same, lands are identical, similarly lying in different villages adjacent to each other, it is unfair to discriminate the land owners.
This opinion is without any logic and runs contrary to the material placed on record i.e. if by private negotiations in village Khadermoh land measuring 3 kanals and 10 marlas for road widening has been acquired and the rate has been fixed as Rs.2,50,000/ per kanal, that too in the year 2005, if such village is adjacent to village Nihama, how could rate of Rs.2,50,000/ per kanal as fixed in the year 2005, that too for widening of road, be treated as a rate for the land measuring 104 kanals and 2 marlas, that too for the year 2000, when in the year 2000 even at Khadermoh on roadside land could not fetch such price.
The learned District Judge has observed that the lands under reference by and large are similar and have been acquired for the same purpose i.e. for construction of railway track, there would be no justification to distinguish the lands on the basis of kind, in addition the opinion that in view of fast urbanization and the construction activities going on in the area, it will be unjust and unfair if the land termed as Banjar Qadeem and Gairmumkin is considered as inferior and given different rates.
The opinion framed is totally misplaced. The question of urbanization and form of constructional activities nowhere figures in the statement of witnesses as to what type of construction activities are going on. The fixation of rate as per kind of soil is answered by the documents as have been placed on record. More particularly by two sale deeds, both of which are for land measuring 10 marlas situated at village Kandizal. In the first sale deed 10 marlas have been sold in lieu of Rs.3,50,000/ in the month of December, 2004 and in the same month and same year another 10 marlas of land situated in same village Kandizal have been sold in lieu of Rs.4,50,000/. Then again in the year 2005 in village Khadermoh land has been sold in lieu of Rs.2,50,000/ per kanal. So these documents clearly are indicative of the fact that it is the location, kind, feasibility and productivity of land based on which rate has to be fixed.
No doubt purpose for acquisition is same i.e. construction of railway track. The purpose of acquisition cant be a sole criterion for fixing the rate. If for the same railway track land is to be acquired within Municipal limits of a city, can the rate be same as shall be given in a far flung area when the purpose is same. The answer shall be in negative.
The learned District Judge has further opined that it is an open secret that a lot of commercial activities are going on in the villages and in rural areas Government has devised many schemes to curb unemployment. The Government is setting up small scale industrial units and such units are being established in rural areas which has escalated the land prices, so it will not only be unjust and unfair but rather harsh and cruel to categorize the lands as have been categorized in the present case.
The opinion is based on the facts which have not been proved by the respondents. It is true that the Court can take judicial notice of certain situations but at the same time Court is not supposed to make out a case for a party. It is the party who is given ample opportunity to prove what he is required to prove. The opinion framed by the learned District Judge is totally based on surmises and is without any basis.
Next contention made by learned counsel for the appellant that the land acquired in village Nihama is a flood prone area, so fixing of rate at Rs.2,50,000/ per kanal in general and Rs.5/ lacs per kanal vis-`-vis 3 kanals and 10 marlas in particular is totally unwarranted and otherwise also not proved, on scrutiny of the records is found to be correct. The rate as awarded is totally unwarranted.
The learned counsel for the appellant would contend that after hearing the arguments references were reserved for judgment. Learned Presiding Officer got transferred on 12th of June, 2008 but nothing was heard about the case so information was sought from the learned Successor. On the application filed for knowing the status of the case, the concerned clerk had recorded report in Urdu language to the effect that the file titled Bashandgani Nihama Vs. Collector was not taken by him in his charge, nothing can be said about status of the file. On the basis of said report, learned District Judge on 12th of June, 2008 recorded endorsement returned in original to the applicant along with report. Two days thereafter the information was received from the office of Principal District Judge that the file is now available. One more application was made for copy of the judgment on 16th of June, 2008 which was made available on 17th of June, 2008.
Perhaps the learned counsel would contend that the judgment was not announced at all and it is after the transfer learned Judge had recorded the judgment and send the file without announcing the same. The interim order recorded on 14.5.2008 in the subordinate court record would reveal that the judgment has been announced on 14.5.2008. Furthermore it is not disputed that the arguments were heard, so no prejudice at all has been caused. Even otherwise after transfer judgment reserved and written could also be pronounced by the successor. In any case this contention has to be ignored.
Now the most important question which emerges for consideration is as to what would be the just compensation for the land acquired.
On the basis of the record available both the parties have not been able to prove as to what was the actual rate of the land prevalent in village Nihama in the year 2000 or for the three years preceding to year 2000. It is in that backdrop the assessment had been made by the Committee headed by Deputy Commissioner based on the rate which has been awarded in respect of land acquired for construction of Railway Station at Pampore and Kakapora earlier to the acquisition of land in village Nihama.
The Committee in their wisdom had said that the rate was Rs.1,20,000/ and Rs.60,000/ respectively for the specified kinds of land but in view of earlier acquisition they had given escalation of 10%. Giving of escalation has been declined by the Government while approving the rates but the escalation in effect should have been added to the earlier fixed rates i.e. the Committee should have proposed the rate including 10% escalation. That would mean that the prevalent rate in the year 2000 in village Nihama could have been fixed as Rs.1,20,000/ plus 10% i.e. Rs.1,32,000/ per kanal vis-`-vis land recorded as Abi Awal/Numbal/Wari/Maidani and Rs.60,000/ plus 10% i.e. Rs.66,000/ per kanal vis-`-vis land recorded as Banjar Qadeem/Baidzar/Safadzar. This could be the most reasonable rate and would constitute just compensation awardable to the land owners.
The another reason for holding it to be a just compensation and reasonable rate is that the land owners too had accepted the same because when the tentative award was prepared amounting to Rs.1,50,20,610/, they had received 80% amount of compensation without any objection. It is only when 10% was deducted from the final award they objected and received balance 20% compensation under protest. Means in case 10% would not have been deducted, the same was acceptable to them.
The cumulative effect of the afore-stated discussion leads to only one conclusion that the award(judgment) and decree impugned is liable to be modified to the extent indicated above i.e. the land owners shall be entitled to the compensation which shall be worked out on the basis of the rate i.e. Rs.1,32,000/ per kanal for Abi Awal/Numbal/Wari/Maidani and Rs.66,000/ per kanal for Banjar Qadeem/Baidzar/Safedzar/Gairmumkin. They shall also be entitled to 15% Jabirana, so in total are entitled to Rs.1,50,20,610/. The unpaid amount shall be paid to them to the extent of their respective shares along with interest @10% from the expiry of one year from the date possession has been taken over till final realization thereof, as envisaged by Section 35 of the Act.
The appeals accordingly succeed and are disposed of on the terms indicated above. The decree shall be drawn up.
Copy of the judgment and decree along with subordinate court record be sent to the District Court, Pulwama.
(Mohammad Yaqoob Mir) Judge Srinagar 03.02.2010 Mohammad Altaf