Jammu & Kashmir High Court - Srinagar Bench

National Highway Authority Of India vs Land Owners Of Village Manigam Through on 7 December, 2023

Author: Vinod Chatterji Koul

Bench: Vinod Chatterji Koul

       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                       AT SRINAGAR
                           ......
                       CFA no.04/219
                             [RFA no.04/2019]

                                                Pronounced on: 07.12.2023

National Highway Authority of India, Project Implementation Unit Srinagar,
through its Project Director
                                                         .......Petitioner(s)

                               Through: Mr Robinder Singh, Advocate

                                  Versus

   1. Land Owners of Village Manigam through
   2. Abdul Rehman Bhat S/o Abdul Khaliq Bhat R/o Nepora Anantnag
   3. Ama Khanday S/o Muma Khanday R/o Nepora
   4. Mohammad Jabbar and others Sons of Mohammad Ahsan Dar R/o
      Manigam
      and others
                                                         ......Respondent(s)

                               Through: Mr Vakil Mir, Advocate

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

                              JUDGEMENT

1. In this Appeal, setting-aside of judgement and decree dated 28th

December 2018, passed by Principal District Judge, Anantnag (for

short "Reference Court") on a Reference made by Collector, Land

Acquisition (Additional Deputy Commissioner, Anantnag) under

Section 18 of the J&K Land Acquisition Act (for short " Act") bearing

File no.116/Ref titled as Land Owners of Village Manigam v. Collector

Land Acquisition and another, holding landowners - respondents

herein entitled to enhanced rate of compensation @ Rs.10.00 Lacs per

kanal for the land acquired for purpose of construction of Four Lanning

of National Highway at Manigam plus 15% Jabirana as also holding

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respondents entitled to simple interest @ 6% per annum, is sought on

the grounds made mention of therein.

2. I have heard learned counsel for parties and considered the matter.

3. Project Director, National Highway Authority of India, made indent for

acquisition of land for 4-Lanning of National Highway (Bye pass) at

village Manigam Tehsil Devsar. Notification dated 16th June 2007

under Section 4 of the Act was issued to invite objections from

concerned landowners/interested persons vis-à-vis acquisition of land

measuring 145 Kanals 18 Marlas 08 Sirsai. The matter, upon

considering objections, was recommended to Government. Declaration

under Section 6&7 of the Act was issued vide letter dated 10th

December 2007. Under Section 9 and 9A of the Act, notice dated 12th

January 2008 was served to interested persons. Rs.10.00 Lacs per kanal,

however, was demanded by landowners. Collector - respondent no.81

herein issued Final Award dated 7th April 2016, in the amount of

Rs.6.20 Lacs per kanal. Respondents 1 to 8 made an application for

reference under Section 18 of the Act. The Reference Court has in terms

of impugned judgement and decree enhanced compensation from

Rs.6.20 Lacs to Rs.10.00 per kanal.

4. It is submitted by learned counsel for appellant that Reference Court

has relied upon oral evidence without any substance and documentary

proof/ support and that Reference Court has come to wrong conclusion

by enhancing compensation amount from Rs. 6.20 Lacs plus 15%

Jabrina per kanal to Rs.10.00 lacs plus 15% Jabrina per kanal with 6%

of interest from the date of filing of application for reference. He would

also contend that while assessing the compensation, kind of soil, site

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and productivity is to be taken into consideration and in no case uniform

rates are permissible under law. The land in question is agricultural

land, having potential of producing only one crop with 100% flood risk.

It is stated that Reference Court without any material on record has

burdened appellant with a huge liability on account of enhancement of

compensation. It is also stated by him that none of the witnesses have

quoted any personal transaction with documentary proof to substantiate

the rate, they were alleging nor any latest registered sale deed for a big

chunk of land has been produced to suggest the site value of the land in

area. He also states that Reference Court has ignored the fact that all

the requirements as laid down under Section 23 and 24 of the Act had

been strictly complied with by respondent no.81. It is also his

submission that the rate fixed by Reference Court on the analogy of

adjacent villages, which are away from village Manigam is totally

unfounded and not sustainable in the yes of law and that statements of

Patwari and other witnesses have not been appreciated by the Reference

Court in its correct perspective. Respondents 1 to 80 are said to have

failed to produce any sale deed of village Manigam as required under

Section 23 of the Act, whereby it could be established that the cost of

the land of respondents 1 to 80 at the time of declaration under Section

6 of the Act was more than rate assessed by respondent no.81 in his

award. He has relied on Shanti Devi v. Collector Land Acquisition,

2007 (2) JKJ 340; and judgement dated 17th March 2023 in CFA

no.08/2019 titled as National Highway Authority of India v. Ghulam

Qadir Shah and another.

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5. Per contra, learned counsel for the respondents has insisted that no

wrong finding has been given by the Reference Court. He would

contend that the market value of the land fixed by the Collector was at

a lower side and he has wrongly fixed the market value at Rs.6.20 Lacs

per kanal and has ignored the location of the land acquired, its

productivity and also market value of the surroundings. Learned

counsel for the respondents has also averred that market value of the

land is much more even than the rate which has been determined by the

Reference Court. He, thus, contends that no wrong can be found with

the finding returned by the Reference Court in fixing the rate of the land

acquired by the appellant. He would also state that an amount of

Rs.10.00 lacs plus 15% Jabrina with 6% interest for one kanal of land

acquired for the purpose of the four lanning of the National Highway is

in accordance with the provisions of the law and it has been provided

while taking into account the principles governing the market value.

Learned counsel for the respondents has also stated that

different rates have been fixed by the Collector for the land acquired

for different villages for the purpose of four lanning and the award was

passed by him without considering their objections. It is contended by

him that land situated in nearby villages of Nepora, Malpora, Lalipora

was also acquired and they were given Rs.10.00 Lacs per kanal by

National Lok Adalat vide its orders dated 8 th July 2017. He has placed

reliance on the judgement of the Supreme Court dated 21st March 2017,

passed in Ali Mohammad Beigh v. State of J&K, 2017 (4) SCC 17.

6. In the present case, the Reference Court on the reference having been

made to it and after the objections filed, framed following issues: -

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1. Whether the compensation awarded by the collector in terms of his award is inadequate? OPP

2. If yes to what extent the compensation is to be enhanced? OPP

7. The parties produced the evidence before the Reference Court. The

respondents 1 to 80, i.e., land owners, produced witnesses in support of

their claim. However, appellant did not to produce any witness/

evidence before the Reference Court in support of its stand.

8. The witnesses, namely, Abdul Rahman Bhat; Abdul Salam Kutty;

Mohammad Yousuf Padder; Reyaz Ahmad Dar; Khursheed Ahmed

Bhat; Abdul Salam Ganie; Gull Mohammad Khanday, were produced

and got examined by respondents before the Reference Court.

9. In his statement, witness, namely, Abdul Rahman Bhat, stated that land

was taken from landowners without their consent and when landowners

protested against the same, the Collector used police force and took

over possession of land and thereafter they demanded but Collector

awarded only Rs.6.20 Lacs per kanal, which rate was not accepted by

landowners.

The witness, namely, Abdul Salam Kutty, in his statement,

deposed that since 2009, landowners moved Collectorate office for

justice against injustice which happed to them but Collector deferred

the landowners for ten years and in the year 2013-14, the Collector

deposited the compensation in their accounts on his own. He also stated

that there is no danger of floods to the acquired land. He also deposed

that with respect to land adjacent to Nipora, acquired by appellant,

Rs.57,500/- per marla was given to landowners.

The witness, namely, Mohammad Yousuf Padder, stated

collector and intending department without consulting landowners

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fixed the rate of the land acquired. The landowners protested against

the said rate in the office of collector, but no heed was paid to their

demands. The acquired land is not a flood prone land.

The other witnesses also made same statement as was made by

abovementioned witnesses.

10.The Reference Court found that land in question was near the National

Highway and was used for commercial purposes and was the sole

source of earning livelihood for respondents. It was also found and, as

such, opined by the Reference Court that land in adjacent areas/villages

were given much higher compensation as compared to respondents.

11.The relevant factors to be taken into consideration while acquiring the

land are provided in Section 23 of the Act, which reads as under: -

"23. Matters to be considered in determining compensation.

"(1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration-

First, the market value of the land at the date of the publication of the declaration relating thereto under Section 6;

Secondly, the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof;

Thirdly, the damage (if any), sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of severing such land from his other land; Fourthly, the damage (if any), sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings;

Fifthly, if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and Sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector's taking possession of the land.

(2) In addition to the market value of the land, as above provided, the Court shall in every case award an amount

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calculated at the rate of twelve per centum per annum on such market-value in consideration of the compulsory nature of the acquisition."

12.The aspects as stipulated in Section 23 of the Act have not been taken

note of by Collector while making the award for the land acquired for

four-lanning of the National Highway. The effect of acquiring the land

which was sole livelihood of landowners, is to affect their source of

livelihood, which fact has not been taken into consideration by the

Collector while awarding the compensation. He has not taken into

account the fact that the land was a commercial land and had

commercial value.

13.It is pertinent to mention here that when the lands are more or less

situated nearby and when the acquired lands are identical and similar

and acquisition is for the same purpose, it would not be proper to

discriminate between the landowners. In Union of India v. Bal Ram and

another (2010) 5 SCC 747, the Supreme Court held that if purpose of

acquisition was same and when the lands were identical and similar

though lying in different villages, there was no justification to make any

discrimination between landowners to pay more to some of the

landowners and less compensation to others. In Union of India v.

Harinder Pal Singh and others (2005) 12 SCC 562 , the same view was

taken by the Supreme Court by holding:

"15. We have carefully considered the submissions made on behalf of the respective parties and we see no justification to interfere with the decision of the Division Bench of the Punjab and Haryana High Court which, in our view, took a pragmatic approach in fixing the market value of the lands forming the subject-matter of the acquisition proceedings at a uniform rate. From the sketch plan of the area in question, it appears to us that while the lands in question are situated in five different villages, they can be consolidated into one single unit with little to choose between one stretch of land and another. The entire area is in a

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stage of development and the different villages are capable of being developed in the same manner as the lands comprised in Kala Ghanu Pur where the market value of the acquired lands was fixed at a uniform rate of Rs 40,000 per acre. The Division Bench of the Punjab and Haryana High Court discarded the belting method of valuation having regard to the local circumstances and features and no cogent ground has been made out to interfere with the same.

16. In our view, in the absence of any contemporaneous document, the market value of the acquired lands of Village Kala Ghanu Pur which were acquired at the same time as the lands in the other five villages was correctly taken to be a comparative unit for determination of the market value of the lands comprising the lands forming the subject-matter of the acquisition proceedings under consideration......."

14.Once the lands are acquired at the same time and for the same purpose,

that is, for construction of 4-Lanning National Highway, the lands

situated in different locations/villages and once the land is similar land,

it would be unfair to discriminate between the landowners insofar as

payment of compensation is concerned. The judgement relied upon by

learned counsel for appellant are distinct in facts and circumstances of

the present case.

In such circumstances, the Reference Court was correct in

granting Rs.10.00 Lacs per kanal as compensation to landowners/

respondents and, resultantly, impugned judgment and decree does not

call for any interference.

15.For the reasons discussed above, I find no merit in the instant appeal