Jammu & Kashmir High Court
Sudesh Kumari vs Union Of India Through Defence on 21 February, 2024
Author: Sanjay Dhar
Bench: Sanjay Dhar
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on 06.02.2024
Pronounced on 21.02.2024
MA No. 179/2012
1. Sudesh Kumari, Aged 80 years .....Appellant(s)/Petitioner(s)
WD/O Late Satpaul, R/o. Ward
No. 11, Below Gurudwara (Tinu
General Store), Rajouri
2. Rajiv Kumar, Aged 25 years,
Son of Late Sh. Krishan Lal,
R/o. Opposite 47-Subash Nagar,
Rehari, Jammu
3. Vinod Kumar, Aged 30 years,
Son of Late Sh. Krishan Lal,
R/o. Opposite 47-Subash Nagar,
Rehari, Jammu
4. Rakesh Kumar, Aged 27 years
Son of Late Sh. Krishan Lal,
R/o. Opposite 47-Subash Nagar,
Rehari, Jammu
5. (i) Rita Kumari W/o. Late Ram
Naresh, Aged 59 years, R/o.
Ward No. 11, below Gurudwara
(Tinu General Store), Rajouri
(ii) Sonam Sharma W/o. Vikas
Chadha, Aged 34 years, R/o. H.
No. 324-F near sethi sweet
shop, Rehari Colony, Jammu
(iii) Akash Sharma S/o. Lt. Ram
Naresh Aged 31 years, R/o.
Ward No. 11, below
Gurudwara, (Tinu General
Store), Rajouri
(iv) Apurva Sharma D/o Lt.
Ram Naresh Age 26 years, R/o
ward No. 11, below Gurdwara
(Tinu General Store), Rajouri
6. Ravi Naresh, Aged 50 years,
Son of Late Sh. Satpal, R/o
Ward No. 11, Below Gurdwara
(Tinu General Store), Rajouri.
7. Suneh Alias Sunil Lata, Aged
40 years, D/o. Late Sh. Satpal,
2
MA No. 179/2012 and MA No. 456/2012
R/o. Ward No. 11, Below
Gurudwara, (Tinu General
Store), Rajouri.
8. Chand Rani, Aged 50 years,
WD/o Late Sh. Krishan Lal,
Opposite-47-Subash Nagar,
Rehari, Jammu
9. (a) Chand Bala W/o. Ramesh
Chander Sharma, Age 56 years,
R/o. Village Kote Nerojal, Teh.
Thana Mandi District Rajouri
(b) Sanjogta Sharma W/o.
Susheel Kumari, Age 45, R/o.
H. No. 55, Priyadarshani Lane,
Patta Paloura, Jammu
(c) Saroj Sharma W/o. Sanjeev
Kumar, Age 41, C/o Oasis
Public School, Siot, Rajouri
Through: Mr. Sunil Sethi, Sr. Adv. with
Ms. Sonika Parihar, Adv.
Q
vs
1. Union of India through Defence ..... Respondent(s)
Estates Officer, Northern
Command
2. District Collector, Rajouri
Through: Mr. Rohan Nanda, CGSC
MA No. 456/2012
Union of India, through Defence .....Appellant(s)/Petitioner(s)
Estates, Officer Northern Command
Q
Through: Mr. Rohan Nanda, CGSC
vs
1. Sudesh Kumari, Aged 80 years ..... Respondent(s)
WD/O Late Satpaul, R/o. Ward No.
11, Below Gurudwara (Tinu
General Store), Rajouri
2. Rajiv Kumar, S/o. Lt. Sh. Krishan
Lal, R/o. Opposite 47-Subash
Nagar, Rehari, Jammu
3. Vinod Kumar, S/o. Lt. Sh. Krishan
3
MA No. 179/2012 and MA No. 456/2012
Lal, R/o. Opposite 47-Subash
Nagar, Rehari, Jammu
4. Rakesh Kumar, S/o. Lt. Sh. Krishan
Lal, R/o. Opposite 47-Subash
Nagar, Rehari, Jammu
5. (i) Rita Kumari W/o. Late Ram
Naresh, Aged 59 years, R/o. Ward
No. 11, below Gurudwara (Tinu
General Store), Rajouri
(ii) Sonam Sharma W/o. Vikas
Chadha, Aged 34 years, R/o. H. No.
324-F near sethi sweet shop, Rehari
Colony, Jammu
(iii) Akash Sharma S/o. Lt. Ram
Naresh Aged 31 years, R/o. Ward
No. 11, below Gurudwara, (Tinu
General Store), Rajouri
(iv) Apurva Sharma D/o Lt. Ram
Naresh Age 26 years, R/o ward No.
11, below Gurdwara (Tinu General
Store), Rajouri
6. Ravi Naresh, Son of Late Sh.
Satpal, R/o Ward No. 11, Below
Gurdwara (Tinu General Store),
Rajouri.
7. Suneh alias Sunil Lata, D/o. Late
Sh. Satpal, R/o. Ward No. 11,
Below Gurudwara, (Tinu General
Store), Rajouri.
8. Chand Rani, WD/o Late Sh. Krishan
Lal, Opposite-47-Subash Nagar,
Rehari, Jammu
9. (a) Chand Bala W/o. Ramesh
Chander Sharma, Age 56 years, R/o.
Village Kote Nerojal, Teh. Thana
Mandi District Rajouri
(b) Sanjogta Sharma W/o. Susheel
Kumari, Age 45, R/o. H. No. 55,
Priyadarshani Lane, Patta Paloura,
Jammu
(c) Saroj Sharma W/o. Sanjeev
Kumar, Age 41, C/o Oasis Public
School, Siot, Rajouri
Through: Mr. Sunil Sethi, Sr. Adv. with
Ms. Sonika Parihar, Adv.
4
MA No. 179/2012 and MA No. 456/2012
Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1. The present appeals are directed against the award dated 27.03.2012
passed by the District Judge, Rajouri (hereinafter to be referred as the
Arbitrator) in terms of J&K Requisitioning and Acquisition of Immoveable
Property Act, 1968 (for short the Act), whereby the Indenting Department-
Union of India through Defence Estates Officer, Northern Command has been
directed to pay compensation to the land owners in respect of acquired land
measuring 29 kanals and 8 marlas situated at Village Pathan Mohra, District
Rajouri at the rate of Rs. 69,000/- per kanal. While the Indenting Department-
Union of India has challenged the impugned award by virtue of appeal bearing
MA No. 456/2012 contending that the enhancement of the compensation
awarded by the learned Arbitrator is not justified, the land owners have also
challenged the impugned award through the medium of appeal bearing MA No.
179/2012 seeking enhancement of the compensation. Both these appeals are
proposed to be decided in terms of the present judgment.
2. Before coming to the rival contentions raised by the appellants, it would
be apt to briefly refer to the facts leading to filing of the present appeals.
3. On 31.05.1997, Government of Jammu and Kashmir issued notice under
Section 7(i) of the Act asking the land owners/tenants/alottees of land
measuring 210 kanals and 13 marlas situated in Village Pathan Morha, District
Rajouri under various khasra numbers to show cause as to why the said land
should not be acquired. It is pertinent to mention here that the land in question
MA No. 179/2012 and MA No. 456/2012
was already under the occupation of the Army and the rental compensation was
being paid to the land owners in terms of the provisions of the Act as the same
stood requisitioned vide order No. 274 dated 10.04.1952. Notification in Form-
J was issued vide No. Home/CL-38/91 dated 24.02.1999 by the Principal
Secretary to the Government, Home Department. Vide award dated 01.08.2000,
the District Collector assessed the compensation of the acquired land at the rate
of Rs. 40,000/- per kanal and total compensation for entire chunk of the land
was worked out to Rs. 84,26,000/-.
4. Some of the land owners/appellants in MA No. 179/2012 raised a dispute
about the quantum of compensation assessed in respect of the land measuring
29 kanals and 8 marlas comprised in khasra Nos. 53, 64 and 65. They received
the compensation under protest and reserved their right to seek enhancement of
compensation. Vide SRO 101 dated 06.04.2005 issued by the Government of
Jammu and Kashmir, the dispute in terms of clause (b) of sub section (1) of
Section 8 of the Act was referred to the Arbitration of the District Judge,
Rajouri. It is in these circumstances that the proceedings relating to the
arbitration were undertaken by the District Judge, who after receiving the
written version of the land owners as well as the Indenting Department, vide his
order dated 27.07.2007 framed the following issues:
1. What was the market value of per kanal of land of
interested persons as at the time of its acquisition? OPP.
2. Whether the interested persons are entitled to claim for
enhancement of compensation? O. P. Collector
3. Relief.
5. In order to prove their respective contentions, the parties were asked to
lead evidence and accordingly the parties led their evidence before the learned
Arbitrator. While the land owners examined PWs Trilok Raj, Subash Chander,
MA No. 179/2012 and MA No. 456/2012
Shakoor Khan, Meena Kumari and Patwari Sajjad Ahmed as witnesses in
support of their case, the Indenting Department examined Sh. G. A. Khawaja,
District Collector as witness in support of their case. Copies of a couple of sale
deeds were also placed on record by the owners so as to justify the
enhancement of compensation amount.
6. The learned Arbitrator after hearing the parties and after appreciating the
material and the evidence on record, came to the conclusion that the amount of
compensation assessed in terms of the award passed by the Collector does not
represent the market value of the land. Accordingly, the quantum of
compensation was enhanced to Rs. 69,000/- per kanal from Rs. 40,000/- per
kanal in respect of the disputed land and the impugned award dated 27.03.2012
came to be passed.
7. The Indenting Department-Union of India has challenged the impugned
award on the grounds that the learned Arbitrator has, while enhancing the
compensation assumed that the compensation was paid to the land owners in
respect of the acquisition of land undertaken in Villages, Rampur, Talwal and
Gurdhan Pain in the year 1986 at the rate of Rs. 60,000/- per kanal though there
was no material on record in this regard. It has been further contended that the
learned Arbitrator, while assessing the market value of the land, has taken into
account the sale consideration depicted in sale deeds for small parcels of land
which were of a period subsequent to the relevant year. It has also been
contended that the learned Arbitrator has placed reliance upon the ratio laid
down by the Supreme Court in the judgments which relate to the Land
Acquisition Act, whereas the acquisition in the present case is under the J&K
Requisition and Acquisition of Immoveable Property Act. It has been
MA No. 179/2012 and MA No. 456/2012
contended that the principles for assessment of compensation in both these
enactments are entirely different from each other order, therefore, learned
Arbitrator has fallen into error by relying upon the ratio laid down in the
judgments cited in the impugned award. It has also been contended that the
acquired land was not within the Municipal limits at the time of its acquisition
and the learned Arbitrator has fallen into error by assuming that the land in
question was located within the Municipal limits.
8. Per contra, the land owners in their appeal have sought enhancement of
the compensation on the grounds that the learned Arbitrator has, while
observing that the acquired land was similar to the land that was acquired in
Village Talwal at the rate of Rs. 60,000/- per kanal in the year 1986, taken the
value of the acquired land at the rate of Rs. 30,000 per kanal on which
escalation of 10% per year was given without justifying as to how the value of
the land could have been taken as Rs. 30,000/- per kanal instead of Rs. 60,000/-
per kanal. It has been contended that the acquired land is located just half a
kilometre from the main Bus Stand of Rajouri carrying tremendous commercial
potential and the learned Arbitrator despite noticing these facts, has assessed
the compensation without taking these factors into account. It has been further
contended that even as per the award passed by the Collector, concerned
Tehsildar had reported that the market value of the land in Village Pathan
Morha is Rs. 2.00 lacs per kanal but the learned Arbitrator has not taken this
factor into account while passing the impugned award. On these grounds, it has
been contended that the appellants/land owners are entitled to compensation at
the rate of Rs. 9.00 lacs per kanal.
MA No. 179/2012 and MA No. 456/2012
9. I have heard learned counsel for the parties and I have perused the
grounds of appeal projected in the appeals, the impugned award and the record
of the Arbitrator.
10. Before coming to the rival contentions raised by the parties in assailing
the impugned award passed by the learned Arbitrator, it would be apt to notice
the principles governing the assessment of compensation of land acquired
under the provisions of the J&K Requisitioning and Acquisition of Immovable
Property Act, 1968. Section 8 of the said Act governs the principles and
methods of determining compensation under the Act. It reads as under:
"8. Principles and method of determining compensation.
(1)Where any property is requisitioned or acquired under this Act,
there shall be given compensation the amount of which shall be
determined in the manner and in accordance with the principles
hereinafter set out, that is to say,
(a)where the amount of compensation can be fixed by agreement, it
shall be given in accordance with such agreement;
(b)where no such agreement can be reached, the Government shall
appoint as arbitrator a person, who is a District Judge, or
Additional District Judge;
(c)the Government may, in any particular case, nominate a person
having expert knowledge as to the nature of the property
requisitioned or acquired to assist the arbitrator and where such
nomination is made, the person to be compensated may also
nominate an assessor for the same purpose;
(d)at the commencement of the proceedings before the arbitrator,
the Government and the person to be compensated shall state what
in their respective opinion is a fair amount of compensation.
(e)the arbitrator shall, after hearing the dispute, make an award
determining the amount of compensation which appears to him to
be just and specifying the person or persons to whom such
compensation shall be paid; and in making the award, he shall have
regard to the circumstances of each case and the provisions of sub-
sections (2) and (3), so far as they are applicable;
(f)where there is any dispute as to the person or persons who are
entitled to the compensation, the arbitrator shall decide such
dispute and if the arbitrator finds that more persons than one are
entitled to compensation, he shall apportion the amount thereof
amongst such persons;
(g) nothing in the Jammu and Kashmir Arbitration Act, 2002, shall
apply to arbitrations under this section.
MA No. 179/2012 and MA No. 456/2012
(2) The compensation for the requisitioning of any property shall
consist of:
(a) a recurring payment, in respect of the period of requisition, of a
sum equal to the rent which would have been payable for the use
and occupation of the property, if it had been taken on lease for that
period; and
(b) such sum or sums, if any, as may be found necessary to
compensate the person interested for all or any of the following
matters, namely:
(i) pecuniary loss due to requisitioning;
(ii) expenses on account of vacating the requisitioned premises;
(iii) expenses on account of reoccupying the premises upon release
from requisition; and
(iv) damages (other than normal wear and tear) caused to the
property during the period of requisition, including the expenses
that may have to be incurred for restoring the property to the
condition in which it was at the time of requisition.
(3) The compensation payable for the acquisition of any property
under section 7 shall in the absence of an agreement be the price
which the requisitioned property would have fetched in open
market, if it had remained in the same condition as it was at the
time of requisitioning and been sold on the date of acquisition.
(4) Where there are several persons interested in the compensation,
it shall be lawful for the Government, either on its own motion, or
on an application from any person interested to appoint the same or
any other arbitrator to make an award or supplementary award in
respect of the dispute."
11. Sub section (3) quoted above, is relevant to the context and it clearly
provides that the compensation payable for acquisition of property would be an
agreed price and in absence of any agreement, it would be the price which the
said property would fetch in open market, provided it had remained in the same
condition as it was at the time of requisition and had been sold on the date of
acquisition. The provisions contained in sub section (3) are required to be
understood properly for arriving at a conclusion as what would be the measure
of compensation in respect of the property acquired under the Act. Firstly, it
provides that measure of compensation for such property would be its market
value as on date of the acquisition. Secondly, it provides that while determining
the market value of the said property, it has to be kept in mind that
MA No. 179/2012 and MA No. 456/2012
improvements made in the property after its requisitioning are not to be
considered. In other words, it has to be assumed that the property is in the same
condition as it was at the time of requisition.
12. Learned counsel for the appellant/Indenting Department is right in his
submission that the principles for assessment of compensation of land acquired
under the Land Acquisition Act would not be applicable to assessment of
compensation of the land acquired under the J&K Requisitioning and
Acquisition of Immoveable Property Act. This aspect of the matter has been
repeatedly emphasised by the Supreme Court in its various judgments delivered
from time to time. In order to make the things more clear, it would be apt to
refer to some of these judgments.
13. The Supreme Court has, in the case of Union of India v Hari Krishan
Khosla (Dead) by LRs, 1993 Supp (2) SCC 149, while considering the issue
relating to assessment of compensation under the Requisitioning and
Acquisition of Immoveable Property Act, 1952, which is in pari materia with
the J&K Act, held as under:
"52. We are of the opinion that the amount of compensation can be
fixed by agreement under Section 8(1)(b). In the absence of such an
agreement it is left to the discretion of the Arbitrator. The
Arbitrator under Section 8(1)(e) is to hear the dispute. Thereafter he
is to determine the compensation which appears to him to be just.
He must have regard to the circumstances of each case while
applying the provisions of Sub-section (3)(a) of Section 8 which
reads as under:
8(3): The compensation payable for the acquisition of any
property under Section 7 shall be-
(a) the price which the requisitioned property would have
fetched in the open market, if it had remained in the same condition
as it was at the time of requisitioning and been sold on the date of
acquisition, or,
53. In our view, the significant omission of solatium is indicative of
the legislative intent necessitating stress on the expressions "just
MA No. 179/2012 and MA No. 456/2012
and circumstances of each case'' occurring in subsection (1)(a)
thereof.
54. Yet another distinguishing feature is the expression "open
market". The reason why solatium has not been provided is that
"open market" contemplates a bargain between a free buyer and a
free seller unfettered by the consideration of requisition and
consequent acquisition."
14. Relying upon the aforesaid ratio, the Supreme Court in another case,
titled, Union of India and others v Chain Singh and others, AIR 1997 SC
3000, observed that the endeavour of the Court or the Arbitrator should be to sit
in the arm chair of a prudent willing purchaser, keep the consideration of the
feats of imagination at bay, seek answer to the question whether a willing and
prudent buyer would offer to purchase the land from the open market from a
willing seller, at the same rate which is proposed to be determined by the Land
Acquisition Officer/Court. The Court further observed that all the relevant
features, namely, the nature of the land, the quality of the land, the market
conditions prevailing as on the date of the acquisition, the income derived from
the land etc, should be taken into consideration.
15. Again the Supreme Court in Union of India and others v Dhanwanti
Devi and others, (1996) 6 SCC 44, has after noticing the provisions contained
in Sections 7 and 8 of the J&K Requisitioning and Acquisition of Immoveable
Property Act, 1968, interpreted the same in the following manner :
"13. It would thus be seen that in determining compensation in
respect of the acquired property, which is the subject matter of
prior requisition and was in possession of the Government, the
principle for determination of compensation is as per the bi-lateral
agreement between the owner and the Government. Where it was
not effectuated and no agreement was reached, the arbitrator is
empowered to determine the compensation which the requisitioned
property would have fetched in open market, if it had remained in
the same condition as it was at the time of its requisition but the
prevailing price should be as on the date of acquisition. Had it been
sold in the open market to a willing purchaser by a willing vendor,
MA No. 179/2012 and MA No. 456/2012
the price offered by a willing purchaser in the open market would
be the yardstick. The arbitrator, therefore, is kept in the arm chair
of a willing purchaser and should consider the circumstances
attending the requisitioned property. Had it remained with the
owner in the same condition as it was at the time of its requisition
and if it were to be sold on the date of acquisition in that condition,
the price a willing purchaser would offer would be just and fair
compensation under the Act. The Acquisition Act provides for
payment of interest under Section 34 by the Land Acquisition
Officer and by the Court under Section 23. Similarly, Section
23(2) provides for payment of solatium, in addition to
compensation, in consideration of compulsory acquisition. The
presumptive evidence furnishes that the Jammu & Kashmir
Legislature was aware of the above provisions and principles of
determination of the compensation under the Acquisition Act, yet,
the Legislature departed from those principles; instead, it set down
under the Act its own principles to determine the
compensation. The Act did not expressly provide for payment of
interest and solatium as components of compensation under the
Act."
16. Relying upon the aforesaid ratio of Supreme Court in Dhanwanti's case
(supra), the said Court in a later judgment in the case of Dayal Singh v Union
of India and others, (2003)2 SCC 593 has, after noticing the provisions
contained in the Requisitioning and Acquisition of Immoveable Property Act,
1952 and the Land Acquisition Act, drawn a distinction between the mode and
manner for determination of the compensation under the two enactments by
observing as under:
"17. The 1952 Act is a self-contained Code. The 1952 Act not only
lays down a criteria for determination of compensation but also
provides for the mode and manner thereof. The procedures for
determining the award of compensation are not the same.
18. The provisions of the Land Acquisition Act are, ex-facie not
applicable for determination of compensation under the 1952 Act.
The provisions of the Land Acquisition Act and the 1952 Act are,
thus, not in para-materia. Section 23 of the Land Acquisition Act
1894, on the other hand, lays down the factors which are required
to be taken into consideration in determining the amount of
compensation. The mode and manner in which the compensation
payable for acquisition of land under the 1952 Act and Land
Acquisition Act, 1894 are, thus, distinct and different. We fail to
MA No. 179/2012 and MA No. 456/2012
see as to how the provisions of Section 28A of the Land
Acquisition Act can be made applicable in relation to a proceeding
under the 1952 Act.
19. Furthermore, the criteria for determination of compensation in
terms of sub-section (3) of Section 8 must be viewed with the
limitations contained therein. In any event the market value of a
property may also be determined from the stand-point of a willing
purchaser of the land ready and willing to offer the consideration
therefor to a buyer. The owner of a land normally would opt for the
best offer. Once he has agreed to a price; so far as he is concerned
the same ordinarily should be presumed to be the best offer which
he could get.
20. It may be true that in Haji Mohammad Ekrmul Haq's case
(supra) this Court observed that even in the matter of payment of
compensation under the 1952 Act, the criteria laid down under
the Land Acquisition Act would be applicable. However, Section
8 of the 1952 Act underwent amendments and the provisions of the
1952 Act having not only laid down a complete machinery but also
the mode and manner of determining compensation, the said
decision of this Court cannot be said to have any application in the
instant case.
21. This Court in Gurbachan Singh's case (supra) and Babu Singh's
case (supra), in view of the aforementioned distinction following
the judgment of this Court in Hari Krishan Khosla's case (supra)
clearly laid down the law that Section 28A of the Land Acquisition
Act cannot be applied in relation to an acquisition proceeding under
the 1952 Act."
17. From the foregoing analysis of law on the subject, it is clear that
principles for determination of the compensation under the Land Acquisition
Act and Requisitioning and Acquisition of Immovable Property Act are distinct
from each other. Whereas, in the former enactment, the assessment of
compensation of acquired land has to be made by taking into account the
factors mentioned in Section 23 of the J&K Land Acquisition Act but in cases
relating to acquisition of land under the J&K Requisitioning and Acquisition of
Immoveable Property Act, the measure of compensation has to be the market
value of the land in question on the date of acquisition provided it had remained
in the same condition as it was at the time of requisitioning. The crux of the
MA No. 179/2012 and MA No. 456/2012
matter is that the Arbitrator or the Collector has to determine as to what would
be the prevailing market price of the land as on date of its acquisition or in
other words as to what price would a willing purchaser offer for the land in
question to a willing vendor.
18. Learned counsel for the appellant/Indenting Department has contended
that the expression "same condition as it was at the time of requisitioning"
appearing in sub section (3) of Section 8 of the Act would mean that whatever
improvements have taken place in the vicinity of the acquired land after the
requisitioning of the property cannot be taken into consideration while
determining the market value of the acquired land. I am afraid the interpretation
sought to be given by the learned counsel cannot be accepted. What the
aforesaid expression conveys is that the improvements that may have been
made in the acquired land after its requisitioning are to be excluded from
consideration while determining its market value but the said value has to be
determined with reference to the date of acquisition and if as on date of
acquisition, certain developments/improvements have taken place in the
vicinity of the acquired land, the same cannot be taken out of consideration.
19. In light of the aforesaid principles, let us now proceed to determine as to
what would be the market price of the acquired land as on date of its
acquisition i.e. in the year, 1999. This has to be done in light of the material
that was available before the learned Arbitrator. If we have a look at the award
passed by the Collector, it is noted therein that the land in question is located
within Notified Area Committee Limits, Rajouri and it is in the front line of
Jammu Poonch National Highway. It is also noted in the award of the Collector
that the land in question possesses good commercial value. The Collector has
MA No. 179/2012 and MA No. 456/2012
also noted that the rates of the land have increased manifold. The award of the
Collector goes on to note that the Tehsildar Rajouri has reported that the market
value of the land at the relevant time in the area was Rs. 2.00 lacs per kanal but
because of the implementation of the Agrarian Reforms Act, no sale
transactions have taken place in the village in question during the last three
years.
20. From the award of the Collector, it is clear that the land in question is
located on Jammu-Poonch National Highway; it has good commercial value; it
is located inside the Notified Area Committee Limits, Rajouri and the Tehsildar
has reported that the market rate of the land in Village, Pathan Morha is Rs.
2.00 lacs per kanal. So far as the location of the land is concerned, it has been
clearly stated by the witnesses of the land owners that the same is situated on
Jammu-Poonch National Highway, inside the Notified Area Committee Limits
of Rajouri. It has also come in the evidence led by the parties that the land in
question is located at a distance of about 500 to 600 meters from the Bus Stand,
Rajouri.
21. Patwari Sajjad Ahmed has stated that the land in question is located at a
distance of one kilometre from Rajouri Bus Stand and it falls within the
Municipal Limits of Rajouri. He has further stated that the Rajouri-Poonch
National Highway passes through the land in question inasmuch as khasra Nos.
64 and 65 are on one side of the National Highway and said Highway passes
through khasra No. 53. The District Collector has also stated that the land in
question is located only at a distance of one kilometre across the river from the
main Rajouri Town. He has further stated that the land in question touches
Rajouri-Poonch National Highway.
MA No. 179/2012 and MA No. 456/2012
22. From the aforesaid evidence on record, it is clear that the land in
question is located on Rajouri-Poonch National Highway. It is also clear that it
is located at a distance of 500 meters to one kilometer from the Bus Stand
Rajouri. The material on record further shows that even as on date of the
acquisition, it was part of the Notified Area Committee Limits of Rajouri.
23. Learned counsel for the appellant/Indenting Department has submitted
that the Village, Pathan Morha where the land is located, was included in the
Municipal Limits of Rajouri only in the year, 2011 and prior to that it was not
part of Municipal Limits. In this regard, he has placed reliance upon SRO dated
09.08.2011 which shows that the Village Pathan Morha has been included in
Municipal Limits Rajouri. However, it is to be noted that prior to the coming
into force of J&K Municipal Act, 2000, Rajouri was a town area and prior to
that, it was a notified area under the earlier enactments on the subject. The
record of the Arbitrator shows that Village Pathan Morha was made part of the
Notified Area Limits in terms of Notification bearing SRO 76 dated
05.02.1969. Therefore, the contention of the Indenting Department that the land
in question was included in Notified Area Committee Limits after the date of
acquisition is without any substance.
24. Once it stands established that the land in question was located within
the Notified Area Limits; it is located on the National Highway; it is only at a
stone throw's from the main Rajouri Town and the development of the Rajouri
Town has taken place around the acquired land, the question that needs to be
determined is as to in light of these factors what should have been the market
value of the said land as on date of its acquisition.
MA No. 179/2012 and MA No. 456/2012
25. In this regard, it has been noted in the award of the Collector that the
concerned Tehsildar has reported that the market value of the land in the area
was Rs. 2.00 lacs per kanal and that there were no sale records available
because of the implementation of the Agrarian Reforms Act. The sale instances
on which land owners have placed reliance are relating to the transactions of
small parcels of land measuring a few marlas and the same do not even relate to
the period which is relevant for determination of the compensation. Therefore,
the same would not of much help for determination of the compensation. In the
face of these circumstances, it seems that the learned Arbitrator has, after
taking into account the location and the nature of the acquired land and without
relying upon the report of the Tehsildar and the sale transactions produced by
the land owners, concluded that the land which is the subject matter of the
acquisition is of similar nature as the land that was acquired in Villages Talwal
and Rampur in the year, 1986. The compensation in respect of said land was
assessed at the rate of Rs. 60,000/- per kanal. In this regard, it is to be
determined as to whether the finding of the learned Arbitrator as regards the
similarity between the acquired land and the land located in village Rampur and
Talwal is based on any material.
26. PW Tarlok Raj has stated that the lands that were subject matter of
acquisition in the year, 1986 at Village Talwal and Gurdhan Pain are at a
distance of 3 kilometers from the land which is subject matter of the present
case and it is located towards Poonch. He has further stated that the market
value of the land acquired in aforesaid two villages in the year, 1986 was
Rs. 60,000/- per kanal with an escalation of Rs. 10% per year and that the said
assessment was upheld up to the Supreme Court. He has stated that the land
MA No. 179/2012 and MA No. 456/2012
which is subject matter of acquisition in this case is located nearer to Rajouri
than Village Talwal, therefore, its market value will be much more.
27. PW Subhash Chander has stated that his land located at Gurdhan Pain
was acquired in the year, 1986 at the rate of Rs. 60,000/- per kanal and the said
rate was upheld by the High Court. He has further stated that the land which is
subject matter of acquisition in this case is located within the Municipal Limits
of Rajouri, therefore, value of the said land would be much more.
28. Collector Sh. G. A. Khawaja has stated that Village Talwal is located at a
distance of 3/4 kilometers on Rajouri-Poonch road. He has also stated that the
Village Gurdhan Pain is located at a distance of 5 to 6 kilometers from Rajouri
Town.
29. From the aforesaid evidence on record, it is clear that the Village Pathan
Morha, where the acquired land is situated, is located within one kilometre of
main Rajouri Town and it falls within the Notified Area Committee Limits of
the said Town, whereas Village Talwal is located at a distance of about 3 to 4
kilometers away from Rajouri Town towards Poonch. From this, it is clear that
the location of the Village Pathan Morha is similar, if not more advantageous to
the location of Village Talwal and both these Villages are located on Jammu-
Poonch National Highway. Thus, the learned Arbitrator was fully justified in
considering the acquired land at par with the land that was acquired in Village
Talwal in the year, 1986.
30. Learned counsel for the appellant/Indenting Department has contended
that no documentary evidence was brought by the land owners before the
learned Arbitrators to show that the land that was acquired in Village Talwal in
1986 was assessed at Rs. 60,000/- per kanal. He has contended that mere oral
MA No. 179/2012 and MA No. 456/2012
statements of the land owners without any documentary support would not be
enough to conclude that the land owners of Village Talwal were paid
compensation of Rs. 60,000/- per kanal.
31. In the above context, it needs to be noted that the process relating to
acquisition of land in Villages Talwal, Rampur and Gurdhan Pain was
undertaken in the year 1986 under the provisions of J&K Requisitioning and
Acquisition of Immoveable Property Act, 1968 and the same became a subject
matter of litigation before the Arbitrator, whereafter the matter was taken to the
High Court and subsequently to the Supreme Court which led to the passing of
the judgment, titled, Union of India and others v Dhanwanti Devi and
others, (1996) 6 SCC 44 (supra). From a perusal of the said judgment, it is
clear that the compensation for the acquired land located in Villages Rampur
and Talwal was assessed at Rs. 60,000/- per kanal by giving 10% escalation on
account of passage of time. This quantum of compensation was upheld by the
High Court and the Supreme Court modified the judgment of the High Court to
the extent of grant of solatium. Therefore, it is well documented that the
compensation of the land acquired in Village Talwal in the year, 1986 was
assessed at Rs. 60,000 per kanal by giving escalation of 10% per year.
32. If we have a look at the award passed by the learned Arbitrator, he has,
after recording a finding that the land which is subject matter of acquisition is
similarly situated to the land acquired in Village Talwal in the year, 1986, taken
the market value of the land in question at Rs. 30,000/- per kanal as in 1986.
No reason much less any cogent reason has been assigned by the learned
Arbitrator for reducing the market value of the land in question from Rs.
60,000 per kanal to Rs. 30,000/- per kanal as in the year 1986 in spite of
MA No. 179/2012 and MA No. 456/2012
holding that the land in question is similarly situated to the land located in
Village Talwal that was acquired in the year 1986.
33. The aforesaid approach of the learned Arbitrator cannot be countenanced
in law. Once it was concluded by the learned Arbitrator on the basis of the
evidence on record that the disputed land is similarly situated to the land
acquired in a different village located nearby, there was no justification for
reducing the market value of the land of the disputed land. The finding of the
learned Arbitrator that the market value of the disputed land in the year, 1986
was Rs. 30,000/- per kanal is, therefore, liable to be set aside. The same on the
basis of the evidence on record deserves to be taken at par with the market
value of the land that was acquired in nearby villages in the year, 1986.
34. As already stated, the market value of the land located in nearby village
Talwal was taken as Rs. 60,000/- per kanal and the same was upheld upto the
Supreme Court. Therefore, the market value of the land, which is subject matter
of the present appeals, has to be taken as Rs. 60,000/- per kanal as in the year
1986. Escalation of 10% per year deserves to be made for arriving at the market
value of the acquired land in the year 1999, because the land in question is
located in a semi urban area within Notified Area limits. Thus, by giving an
escalation of 10 % per year, the market value of the acquired land would come
to Rs. 2,08,000/- in the year, 1999, the relevant date for the present purposes.
This value of the land reached after giving 10% escalation per year is
approximately the same that was reported by the Tehsildar while submitting his
report to the District Collector, who without any justification and without any
reasoning, discarded the said report of the said Tehsildar. The market value of
the land as reported by the Tehsildar clearly finds support from the market
MA No. 179/2012 and MA No. 456/2012
value of the land assessed in the year, 1986 while acquiring lands in nearby
villages. Therefore, this Court has no hesitation in accepting the market value
of the land assessed by the Tehsildar concerned in his report submitted to the
District Collector. Accordingly, the market value of the land which is subject
matter of the present appeals is taken as Rs. 2.00 lacs per kanal.
35. In view of the above, the appellants/land owners/interest persons are held
entitled to enhanced compensation of Rs. 2.00 lacs per kanal. The award of
learned Arbitrator deserves to be modified to the aforesaid extent.
36. For the foregoing reasons, while dismissing the appeal filed by the
Indenting Department-Union of India, the appeal filed by the land
owners/interest persons is allowed and the award of the learned Arbitrator is
modified by providing that the appellants in MA No. 179/2012 are entitled to
compensation for the acquired land @Rs. 2.00 lacs per kanal.
(SANJAY DHAR)
JUDGE
Jammu
21.02.2024
Rakesh
Whether the order is speaking: Yes
Whether the order is reportable: Yes
