Reserved On: 07.4.202 vs Villagers Of Hamray And Others
2021 Latest Caselaw 476 j&K/2

           HIGH COURT OF JAMMU AND KASHMIR
                     AT SRINAGAR
                          ....
                     CFA No. 19/2018
                                      Reserved on: 07.4.2021
                                    Pronounced on: 23.4.2021
Union of India
                                                    ....... Appellant(s)
                                 Through: Mr. S. A. Naik, Advocate
                          Versus
Villagers of Hamray and Others                      ........ Respondent(s)
                                 Through: Ms. Nusrat Razak, Advocate

CORAM:
   HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE

                                   ORDER

1. Appellant Union of India has assailed the judgement passed by the court of Addl. District Judge, Baramulla in Reference filed under section 18 of Land Acquisition Act (for short "Act"), whereby following directions were passed:

"1. That the respondents shall pay compensation to the petitioners from whom the land has been acquired at the rate of Rs. 2.50 lakhs per kanal plus jabirana @ 15% together with simple interest @ 7% per annum on the enhanced amount of Rs. 89,000/- per kanal from the date of possession of the acquired land.

2. The 80 percent of the compensation which has been admitted by the petitioners to have been received by them in protest shall be deducted from the compensation allowed to them in the under noted reference."

2. The said judgment has been assailed on the ground that the appellant was not given proper opportunity of hearing and without deciding the application filed by the appellant for setting aside the ex-parte proceedings, the Trial court passed the judgement impugned, and that the judgement impugned has been passed in a casual manner without appreciating the controversy, resulting in loss of public exchequer by giving exorbitant rates.

CFA No. 19/2018

3. It is also stated in the Appeal that the Trial court has relied upon the Sale deeds as only modes for determination of the market value of the land in question, notwithstanding the fact that this issue was already decided by the Collector after appreciating the market value of entire land and after generalizing in question in keeping with the market value of the land for preceding three years and also taken into consideration the scope and utility of the land.

4. It is further submitted in the Appeal that the Trial court has also ignored principle of law that value fetched for small portion of land cannot be applied to land covering large extent/bulk area. The price of small chunk of land cannot be determined on the basis of price of small piece of land. In short, the grievance of the appellant is that the Trial court has not properly taken into account the market value while determining the compensation/ Award of the claimants while deciding the Reference in question.

5. I have heard learned counsel for the parties and perused the record on file.

6. On the indent of Indian Railways for acquisition of land in District Baramulla along with land situated in village Hamray, Tehsil Pattan, District, Baramulla, for construction of Railway Station, proceedings for acquiring the land were initiated by the Collector Acquisition, Baramulla under Jammu and Kashmir Land Acquisition Act. Notification No. Coll/QB/RL/10/120-141, dated 26.03.2002 under Section 4(1) of the Act was issued by the Collector Land Acquisition, followed by corrigendum/modification dated 22.05.2002 which was published in Daily Srinagar Times on 22.05.2002, whereby, objections were invited in terms of the Act. No one from the village nor interested persons filed objections before the Competent authority and the case was, accordingly, recommended for acquisition of the land to the Government for issuance of declaration under Section 6&7 of the Act.

7. Since there was urgent requirement of the land to be utilized for the public purpose for its Railway project in J&K, as such proceedings under Section 17 of the Act were initiated, which included taking over

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the possession of land before passing final Award, after making payment of tentative 80% of the land compensation amount.

8. The Notification under Section 9 and 9(A) of the Act was issued to the land owners/interested parties vide notification No. Coll/QB/RL/10- 1929-33, dated 09.08.2002, which was given wide publication through local newspapers and was also served upon the land owners/interested parties, but no one choose to file objections.

9. As per procedure the stakeholders appears to have been summoned by the Collector, Land Acquisition, Qazigund-Baramulla Rail Project. After above notice "Khasra Paimaish" was read over to the land owners/interested persons and their statements were recorded, wherein they stated that they have no objection to the said acquisition, but demanded employment in Railways. Employment to the owners whose 75% land was acquired, was provided by the Railways, after the same was processed and verified by Divisional Commissioner, but as claimed by appellant, no such application was received by the Railways from the villagers of Hamray. The Collector, Land Acquisition, in absence of documentary evidence could not convince himself about the prevailing market rate and one more meeting was held on 19.02.2002, under the chairmanship of Divisional Commissioner, Kashmir, to ascertain prevailing market rate of the land. The owners were also invited to remain present.

10.The Collector, Land Acquisition in terms of the tentative Award dated 16.12.2002, which culminated into final Award, adopted following rates:-

    KIND OF SOIL                        RATES
    BAGHI ABI                           RS. 1.65 LACS + 15% JABIRANA
    BAGHI KHUSHKI                       RS. 1.55 LACS + 15% JABIRANA
    ABI AWAL                            RS. 1.40 LACS + 15% JABIRANA
    BANJAR QADEEM                       RS. 0.70 LACS + 15% JABIRANA
    GAIR MUMKIN                         RS. 0.60 LACS + 15% JABIRANA

                                                           CFA No. 19/2018

11.Land measuring 145 Kanals in village Hamray was handed over/taken over under Section 17 of the Act and the amount of Rs. 5,69,01,329.00 was deposited.

12.Land owners raised dispute against final Award with respect of compensation and filed writ petition bearing OWP No. 380/2003, which was dismissed. Against the said order, LPA bearing LPA No. 147/2004, was filed which was disposed of on 04.11.2004. The operative portion of which reads as under:

"In the case on hand, difficulty for the appellant (Writ Petitioner) is that settlement of controversy is not possible in absence of evidence. Situated thus, we reiterate the view taken by the learned Single Judge. While doing so we grant liberty to the appellant to seek reference under Section 18 of the Jammu and Kashmir Land Acquisition Act. He is free to highlight the alleged discrimination and if he does so, it shall be addressed to by the authority concerned. Regard being had to the fact that the appellants were prompt enough to invoke the writ jurisdiction which according to advice received by the appellants was the appropriate remedy, we permit the appellant to lay a motion under Section 18 of the Land Acquisition Act within two weeks to be reckoned from today. To rule out the possibility of further controversy and to avoid multiplicity of proceedings, it is provided that in case the appellant filed application as directed within one week from today before the collector, it shall be dealt with in accordance with law treating it to be well within time."

13.In pursuance of the order passed by the Division Bench of this Court, Reference was filed before the Court of learned Additional District, Judge Baramulla, in terms of Section 18 of the Act, to which objections were filed. Thereafter appellant remained absent. The Trial court framed issues, recorded the evidence of the claimants, and accordingly, decided the Reference in question, which is evident from the record on the file. During the pendency of the Reference, ex parte proceedings were initiated against the appellant herein. An application was filed for setting aside the ex parte proceedings. The said application was dismissed on 04.6.2015. This falsifies the claim of the appellant that the Reference has been decided by the Trial court without deciding its application for setting aside ex parte proceedings. As per record, ex

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parte proceedings were initiated against the Appellant on 19.5.2009. For setting aside the same, an application was filed beyond limitation period. So an application seeking condonation of delay in filing the application for setting aside the ex parte proceedings was filed on 22.5.2013, which came to be dismissed in terms of order referred to above. It appears that appellant while preparing this Appeal has not bothered to go through the record of the file and has made wrong submission that without deciding its application seeking setting aside the ex parte proceedings. The Trial court has decided the application in view of the record on file. The ground, which has been taken in the Appeal, is not available to the appellant. The other grounds are that Trial court while deciding the Reference has arbitrarily fixed the compensation in the amount of Rs. 2. 50 Lacs per Kanal; the order impugned would reveal that the Trial court, after taking into consideration Sale deeds produced as well as the oral evidences by the respondents which remained unrebutted, came to the conclusion that the rates, fixed by the Collector, were not in tune with the market value and while considering the evidences, the Trial court found that adequate and just compensation, which ought to have been awarded by the Collector, would have been Rs. 2. 50 lacs and accordingly awarded the said compensation.

14.The Trial court has taken into consideration the oral evidence of Gh. Hassan Wani, Gh. Ahmad Ganaie, Habibullah Reshi, Mohammad Ramzan Wani, Gh. Rasool Tantray (Patwari) as well as documentary evidence.

15.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

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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 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

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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."

16.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. The Trial court also came to the conclusion that

compensation @ Rs.2.50 lacs per Kanal was reasonable amount of

compensation to be awarded.

17.It is pertinent to mention here that while making assessment of

compensation to be paid for land acquired, certain factors must be taken

into account 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 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 neighbouring 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

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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."

18.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.

19.For the reasons discussed above, the instant Appeal is dismissed with

connected CM(s). Interim direction, if any, shall stand vacated.

20.Copy of this judgement be sent down.

(VINOD CHATTERJI KOUL) JUDGE Srinagar 23.4.2021 Imtiyaz

Whether approved for reporting? Yes/No.

IMTIYAZ UL GANI 2021.04.23 02:39 I attest to the accuracy and integrity of this document