Jammu & Kashmir High Court - Srinagar Bench
Reserved On: 25.3.202 vs Zamindaraan Kakureng And Others on 5 April, 2021
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
....
CFA No. 63/2007
Reserved on: 25.3.2021
Pronounced on: .04.2021
District Horticulture Officer Budgam
...........Appellant(s)
Through: Ms. Afroza Hassan, Assisting
Counsel to Mr. B. A. Dar, Sr. AAG
Versus
Zamindaraan Kakureng and others
........ Respondent(s)
Through: None
CORAM:
HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGMENT
1. On the indent placed by Deputy Director, Horticulture (Planning and
Marketing), Srinagar, vide No.DDK/98-99/302/145-50 dated
12.04.1999, the Collector Land Acquisition, Budgam - respondent
no.10 herein, initiated proceedings for acquisition of land measuring 48
Kanals and 19 Marlas under survey Nos.3042,3047,3048, 3049,
3051,3052, 3053 at Charisharief, Zaloora. Respondent no.10, after
completing formalities and acquisition proceedings passed the Award,
fixing Rs.50,000/- per kanal as compensation for all kinds of land. The
land owners, however, filed application under Section 18 of the Land
Acquisition Act, for making reference. Accordingly, respondent no.10,
made reference to the court of Principal District Judge, Budgam (for
short "Trial Court").
2. The Trial Court, after recording evidence, came to the conclusion that
the owners - respondents herein, were entitled to compensation @
CFA No.63/2007
Rs.1.15 lakh per Kanal along with Jabrana @ 15% and also interest @
6% from the date of filing of Reference. Feeling aggrieved of this order,
the indenting department, viz. District Horticulture Officer, Budgam,
has filed instant Appeal throwing challenge to judgement and decree
dated 27.06.2006, passed in the aforesaid Reference on the grounds
mentioned therein.
3. I have heard learned counsel for the appellant and also gone through the
record of the file.
4. It is contended on behalf of appellant that the Trial Court did not
appreciate the evidence produced before it in its right perspective. It is
maintained by appellants that they were not given opportunity to cross-
examine the witnesses. It is also stated though there is no evidence on
record to suggest that market value of acquired land was Rs.1.15 lacs,
the Trial court wrongly held that the petitioners were entitled to
compensation @ Rs.1.15 lac per Kanal. The award was passed by the
Collector on the basis of the market value of the land acquired. The rate
of interest awarded by Trial Court is also not justifiable when Jabrana
was allowed. Appellant has also submitted that there is no evidence to
justify the enhancing the compensation from Rs.50,000/- to Rs.1.15 lacs
per Kanal.
5. As is evident from the record on the file, five witnesses, namely,
Ghulam Ahmad Thokar, Abdul Rashid Thokar, Ali Mohmad Thokar, Ab.
Rashid Shah and Ghulam Mohmad Mir have been examined and
documentary evidence in the shape of Sale Deeds of three years has also
been produced before the Trial court.
CFA No.63/2007
6. The contention that appellant was not given opportunity to cross-
examine the witnesses is falsified from the fact, as is also discernible
from impugned judgement, that the witnesses have been very much
cross-examined by counsel appearing for respondents before Trial
Court. All the five witnesses have been cross-examined by counsel
appearing for department before Trial Court and questions have been
put to witnesses, which fact is also ascertainable from impugned
judgement.
7. As regards assessment of compensation for land acquisition matters it
has been held by the Supreme Court in Trishala Jain v. State of
Uttaranchal (2011) 6 SCC 47, that more often than not, it is not possible
to fix compensation with exactitude or arithmetic accuracy. Depending
on the facts and circumstances of the case, the court may have to take
recourse to some guesswork while determining the fair market value of
the land and the consequential amount of compensation that is required
to be paid to the persons interested in the acquired land. Paras 42, 43
and 44 of the above judgement are taken note of:
"42. This Court in Bhagwathula Samanna v. Tahsildar & Land
Acquisition Officer, stated that it is permissible to take into account
exemplars of even small developed plots for determining the value of a large
tract of land acquired, if the latter is also fully developed with all the facilities
requiring little or no further development. In the facts and circumstance of
that case the Court felt that it was not appropriate to resort to deduction of
1/3rd value of the comparable sale instances as development charges.
43. The Court in Bhagwathula Sammana case reiterated the general rule
that if the market value of a large property is to be fixed on the basis of a
sale transaction for smaller property, a deduction is to be made taking into
consideration the expenses required for development of that larger tract and
make smaller plots within that area and held as under: (SCC pp. 509-11,
paras 7,11 & 13)
"7. In awarding compensation in acquisition proceedings,
the court has necessarily to determine the market value of the land
as on the date of the relevant notification. It is useful to consider the
value paid for similar land at the material time under genuine
transactions. The market value envisages the price which a willing
CFA No.63/2007
purchaser may pay under bona fide transfer to a willing seller. The
land value can differ depending upon the extent and nature of the
land sold. A fully developed small plot in an important locality may
fetch a higher value than larger area in an undeveloped condition and
situated in a remote locality. By comparing the price shown in the
transactions all variables have to be taken into consideration. The
transaction in regard to smaller property cannot, therefore, be taken
as a real basis for fixing the compensation for larger tracts of
property. In fixing the market value of a large property on the basis
of a sale transaction for smaller property, generally a deduction is
given taking into consideration the expenses required for
development of a larger tract to make smaller plots within that area
in order to compare with the small plots dealt with under the sale
transaction. This principle has been stated by this Court in Tribeni
Devi Case.
11. The principle of deduction in the land value covered by the
comparable sale is thus adopted in order to arrive at the market value
of the acquired land. In applying the principle, it is necessary to
consider all relevant facts. It is not the extent of the area covered
under the acquisition which is the only relevant factor. Even in the
vast area there may be land which is fully developed having all
amenities and situated in an advantageous position. If smaller area
within the large tract is already developed and suitable for building
purposes and have in its vicinity roads, drainage, electricity,
communications, etc. then the principle of deduction simply for the
reason that it is part of the large tract acquired, may not be justified.
13. The proposition that large area of land cannot possibly fetch a
price at the same rate at which small plots are sold is not absolute
proposition and in given circumstances it would be permissible to
take into account the price fetched by the small plots of land. If the
larger tract of land because of advantageous position is capable of
being used for the purpose for which the smaller plots are used and
is also situated in a developed area with little or no requirement of
further development, the principle of deduction of the value for
purpose of comparison is not warranted."
44. It is thus evident from the above enunciated principle that the
acquired land has to be more or less developed land as its developed
surrounding areas, with all amenities and facilities and is fit to be used for
the purpose for which it is acquired without any further expenditure, before
such land could be considered for no deduction. Similarly, the sale instances
even of smaller plots could be considered for determining the market value
of a larger chunk of land with some deduction unless, there was
comparability in potential, utilization, amenities and infrastructure with
hardly any distinction. On such principle each case would have to be
considered on its own merits."
8. Parties in this case have produced documentary evidence as also oral
evidence. It is on the basis of witnesses produced and documents placed
on record, that the Trial court came to the conclusion that the
compensation, awarded by Collector, Land Acquisition, was not
adequate on the basis of evidence available before it. The Trial court
CFA No.63/2007
also came to the conclusion that compensation @ Rs.1.15 lacs per Kanal
was reasonable amount of compensation to be awarded.
9. Before the Trial Court, it had been a contention of counsel appearing for
the department that adequate compensation had been paid to
respondents as land acquired was away from Charari Sharief town.
However, the said contention was found misconceived in view of the
evidence on record including copies of documents produced by
respondents which established that compensation paid as per the Award
of the Collector, was inadequate because land, which was inferior in
quality to the land, had been purchased at a higher rate than the amount
paid by way of award. While saying this, the Trial court has taken into
consideration the sale deed executed way back in 1997 by one
Mohammad Yaqoob and Mohammad Sarfaraz and the land acquired by
PWD measuring 02 Kanals 09 marlas for an amount of Rs. 2,75,250/-.
The Trial court has also taken into consideration mutation regarding
land of Wali and others and also land acquired by PWD of Abdul
Qayoom which established compensation awarded to respondents was
inadequate. It appears that the Trial court has also taken into
consideration evidence and documents and came to the conclusion that
the compensation given by Collector was inadequate and accordingly
awarded compensation in the amount of Rs. 1.15 lacs per Kanal.
10.It is pertinent to mention here that assessment of compensation to be
paid for land acquired must take into account certain factors which
include nature of land, its present use and its capacity for a higher
potential, its precise location in relation to adjoining land, use to which
CFA No.63/2007
neighbouring land was put to use, impact of such use on the land
acquired and so on. The Supreme Court in Manomegalali vs. The
Special Tahsildar (Land Acquisition Officer) Adi Dravidar Welfare,
has held as under:
"...An assessment of the compensation payable for land acquired must
take into account several factors, including the nature of the land, its
present use and its capacity for a higher potential, its precise location in
relation to adjoining land, the use to which neighboring land was put to
use, the impact of such use on the land acquired, and so on. In the case at
hand, the respondent determined the value of the suit land based on the
sale deed under which 26 cents was sold at the rate of Rs. 400/- per cent
which has happened five months prior to the date of acquisition of the suit
land and that land was taken as date land. Learned subordinate Judge very
correctly appreciated the fact that there was a railway track between the
date land and the acquired land and in that view of the matter, both the
lands could not be considered as similar. It was also evident that the
acquired lands were in the midst of a railway track ad national highway
having capacity for higher potential. An extent of land which was adjacent
to the suit land was sold at the rate of Rs, 4,919/- per cent. Similarly, under
the sale deed, no doubt that the lands which are situated adjacent to the
main road will fetch good market value than the lands which were situated
beyond the road. Though learned Single Judge of the High Court was of
the opinion that there was no basis of granting Rs, 2,500/- per cent for the
suit lands, the present Court was of the considered opinion that on the
basis of the alleged sale deeds which were done in the proximity within a
very short time amply proves its value in relation to the adjoining land."
11.Having regard to law laid down in above cited and discussed judgements
of the Supreme Court and all that has been discussed above, impugned
judgement and decree do not warrant any interference and consequently,
appeal on hand is liable to be dismissed.
12.For the reasons discussed above, the instant Appeal is dismissed with
connected CM(s). Interim direction, if any, shall stand vacated.
13.Copy of this judgement be sent down.
(VINOD CHATTERJI KOUL)
JUDGE
Srinagar
.04.2021
Imtiyaz
Whether approved for reporting? Yes/No
IMTIYAZ UL GANI
2021.04.05 23:56
I attest to the accuracy and
integrity of this document
