09. The award so passed by the Arbitrator has been challenged in this
and is highly perverse, as such, is liable to be set aside. The assessment of
erroneous and perverse. The Arbitrator has also erred in completely ignoring
requisitioned land under the RAIP Act.
Further, the Arbitrator has failed to appreciate that for such huge chunk of
land acquired, even though having great development potential, the entire
area cannot be treated as commercial. The claimants have also failed to
prove the price of the land under acquisition by any exemplar sales and
without proving any sale deed on record and some sale deeds pertaining to
very small pieces of land and the price assessed by the Arbitrator is highly
inflated.
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12. Reliance placed by the Arbitrator is totally misplaced as the said
judgments have no applicability to the facts of the case as most of them
pertain to the acquisitions under the Land Acquisition Act and it is settled
law that the provisions of the Land Acquisition Act are not applicable for
determination of compensation under the RAIP Act.
13. The Arbitrator has noticed the exemplar Sale Deeds in the
impugned award but has finally based his assessment of the market price of
the land on his own assumptions and ignoring the average sale data of the
land for the last three preceding years. He has also failed to follow the
settled principle of deduction applied in cases of acquisition of huge chunk
of land as development charges towards the area to be used for roads, drains,
and common facilities like park, open space, parking‟s etc and further
deduction has to be made towards the cost of development, that is, the cost
of leveling the land, cost of laying roads and drains, and the cost of drawing
electrical, water and sewer lines.
14. The Arbitrator has erred in not applying the deduction on
account of development charges and he has also erred in holding that Belting
System is a judicially accepted method for determining the fair market value
of the acquired land and in appropriate cases when different parcels of lands
with different survey numbers belonging to different owners and having
different locations are acquired which put together comprises of a large
chunk of land. Such chunk cannot be taken as a compact block. The
Arbitrator has erred in holding that the size of the land in acquisition is just
an aggregate of different small size holdings belonging to the different
claimants" ignoring that a large number of the respondents owned land more
than 10 kanals so much so one of the land owner, owned 51 kanals of land
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alone and it is a common knowledge that a chunk of land over and above 04
- 05 kanals of land cannot be developed without wastage of at least 30% to
50% of the total land for the purposes of roads and drains.
15. The Arbitrator has also failed to appreciate that
even if the acquired land is believed to be having commercial potential, even
then by no stretch of imagination, the entire land measuring 542 kanals 19
marlas can be held to have commercial potential and in such cases, Belting
Method/System is to be applied to assess the fair market value of the land as
held by the Hon‟ble Supreme Court in case of Bijender vs State of
Haryana reported as AIR 2017 SC 5811 wherein it has been held as under:-
34. One cannot dispute that the Belting System is a judicially
accepted method for determining the fair market value of the acquired
land. It is applied in appropriate cases when different parcels of lands
with different survey numbers belonging to different owners and
having different locations are acquired which put together comprises
of a large chunk of land. Such chunk cannot be taken as a compact
block.
35) The acquired land having a frontage abutting the highway/main
road always has a better value as compared to the land, which is away
from the highway/main road. Indeed, the land from the highway/main
road, lesser the value of such land. In such a situation, where large
pieces of land having different locations are acquired, Belting System
is considered apposite for determining the market value of the lands.
(see - Union of India & Ors. us. Mangatu Ram &
Ors. 1997 (6) SCC 59 and Andhra Pradesh Industrial Infrastructure
Corporation Limited us. G. Mohan Reddy & Ors.
2010 (15) SCC 412).
16. The Arbitrator has also erred in awarding interest @ 12% p.a. on
the enhanced compensation against the settled proposition of law that no
interest is payable under the RAIP Act. The Arbitrator has also acted beyond
jurisdiction in awarding the interest as the only reference was to assess the
just and fair compensation of the acquired land. The Arbitrator has also
grossly erred in awarding such an excessive and arbitrary rate of interest @
12% p.a. when even the J&K Land Acquisition Act only provides statutory
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rate of interest @ 6% & 10% p.a., as such, the award of interest is also liable
to be set aside.
17. Heard learned counsel for the parties and perused the record
available on file.
18. The dispute which was to be determined by the Arbitrator in this
case was with regard to the rate of land which was in possession of the Army
in respect of which acquisition proceedings were taken and the District
Collector submitted the draft assessment award to the Defence Estates
Officer, Jammu on 15.12.2005 for obtaining approval of the rate from the
competent authority. The rate which was determined by the District
Collector was Rs. 2.75 lac per kanal. The Ministry of Defence Government
of India slashed the rate of compensation of land to Rs. 2.60 lac per kanal
and granted sanction for the payment of compensation on such rate. The land
owners disputed the rate so arrived at and they claimed the compensation for
the land at the rate of Rs.10 lac per kanal and so the Arbitrator was to
determine the rate for determining the reasonable compensation per kanal in
respect of the land so acquired.
19. The Arbitrator for determination of the dispute framed fallowing
issues:-
(i) What should be the reasonable compensation per kanal in
respect of the acquired land (OPP) and
(ii) Relief.
20. The evidence was produced by both the parties. The claimant
produced Shafiq-ur-Rehman; Baldev Singh; Baisakhi Ram; Pardeep Singh
and Dilip Singh whereas the appellant/Union of India produced Rakesh
Kumar; Ashok Kumar and Balbir Singh as witnesses.
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21. The Arbitrator has given brief resume of the evidence in the award
so passed, on the basis of evidence so recorded and has come to the
conclusion that the reasonable rate for determination of the compensation of
the land so acquired to be Rs. 7 lac per kanal, therefore, the awarded
compensation for such land at the rate of Rs. 7 lac per kanal and also
awarded interest at the rate of 12% on the awarded compensation. The
evidence, on the basis of which the Arbitrator has come to the aforesaid
conclusion, is briefly given hereunder : -
"PW-Shafiq-ur-Rehman, was ACR, Jammu from June 2005
to 31st October, 2006. During his tenure as ACR Jammu and before
his posting as such, the Army had acquired the land in village Deeli.
The District Collector called for a report from him about the rate of
the land in question, for which, he visited on spot and also called
report from the Subordinate Revenue Officer. He stated that the land
in question situated on road side at Kujwani Bye-Pass near Santro Car
Showroom, City Farms/Utsav Banquet Hall, Lajwanti Hospital,
Fairdeal showroom and also Greater Kailash is situated at the other
side of the road in front of the land in question. He had submitted his
report to the District Collector and he recommended the rate of Rs.
3.50 lac per kanal for the land in question. He stated that before 2003,
the Army had acquired the land at Deeli, for which, draft award was
issued and compensation has been awarded at the rate of 02 lac per
kanal. One km alongside the National Highway is the front of the land
in question and industrial estate is towards back side of the land
whereas Trikuta Nagar Extension is on the right side. Tehsildar has
proposed the rate of Rs. 6 lac or Rs. 10 lac per kanal while proposing
the rate of Rs. 3.5 lac per kanal. He has taken into consideration the
average sale rate, last acquisition as market value".
"PW-Baldev Singh, who was posted as Girdawar Digiana and
remained posted from the year 2003 till the end of year 2005. In July,
2005, report regarding the market rate of the land in possession of the
defence department situated at village Deeli was sought from him by
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the Higher officer. He visited the spot made enquiries and also sought
report from the Patwari Halqa Deeli, who proposed the rate of Rs. 6
lac per kanal for the land in question. On his enquiries from the spot
and regarding the rate of land in question, he found that the land could
be used for commercial purpose and would fetch the market rate of
Rs. 1.50 per marla and rest of the land, rate was proposed at Rs. 6 lac
per kanal. He has furnished a report to the Higher Officer in this
regard and report exhibited as Exb. P III. He has also stated that the
land in question is situated on the roadside and runs alongside
Kunjwani-Nagrota Bye pass road and the portion of land out
of the land in question runs alongside Kunjwani-Nagrota Bye Pass
road and the portion of the land which runs alongside the road can be
used for commercial purpose. He has also stated about the fact that
Santro showroom, City Farms/Utsav Banquet-Hall are situated there
and residential colonies on the back side of the said land. Before
preparing Exhibit P III, he made spot verification and could not
however say that how much land regarding which he has
submitted report is on the road side and how much is away from the
road. He also cannot say whether the land in question was towards the
back of the land measuring 37 kanals and l8 marlas earlier required by
the Army. He had seen the average sale rate of last three years which
was based on the mutations of preceding three years. He cannot say
how much land has been acquired in the present case and after going
through the record, he has submitted that 542 Kanals 19 Marlas of
land had been acquired. The average sale rate on the basis of mutation
of last three years in the present case was Rs. 65,900/- per kanal and
the rate of Rs. 6 lac per kanal has been proposed by him after making
enquiries from the local people. He did not record any statement of
any of such witnesses".
"P.W. Baisakhi Ram, who was posted as Tehsildar (S) Jammu
in 2005, deposed that in 2005, he was directed by the Deputy
Commissioner, Jammu to submit a report regarding the market rate of
land under the occupation of the Defence Department at village Deeli,
situated along the Kunjwani-Nagrota Bye-pass road. He obtained
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reports from the subordinate staff and the Patwari suggested a rate of
Rs. 6 lakhs per kanal, while the Girdawar recommended Rs. 1.5 lakhs
per marla for roadside land and Rs. 6 lakhs per kanal for the rest.
After visiting the site and considering these reports, he forwarded his
recommendation to the Deputy Commissioner vide No. 568/STJ dated
20.07.2005, which was exhibited as Exb. P-II/1. He admitted there is
no fixed rule for fixing market value and it is based on spot enquiries
and field staff inputs. The field staff had also prepared a list of
average 3-year sale transactions showing Rs. 65,900/- per kanal,
which he forwarded along with his report. However, he still proposed
Rs. 6 lakhs per kanal based on spot enquiries, though he did not record
or remember the names of persons consulted. During cross-
examination, he conceded that he had no documentary proof to
support the Rs. 6 lakhs rate, nor did he know the exact Khasra
numbers involved or their location (front or back). He also lacked
knowledge of the rate fixed by the Collector in earlier acquisitions in
the vicinity. He confirmed that the land was under Army possession,
partly built upon and partly vacant."
"P.W. Pardeep Singh stated that his father owned land in
village Deeli which was acquired by the Army along with land of
other villagers, totaling about 542 kanals. Rent was initially paid after
requisition. Form "I" under RAIP Act was issued in December 2004,
seeking rates from landowners, who claimed ₹10 lakhs per kanal.
Form "J" notice of acquisition followed in January 2005. The land
situated near the National Highway at Kunjwani bypass with a
frontage of about 2600 feet, surrounded by showrooms, banquet halls,
and colonies. On 16.07.2005, Patwari visited the spot and made
enquiries from locals, shopkeepers, showroom and banquet hall
owners, who quoted land rates of ₹ 30 lakhs per kanal and on
18.07.2005, Girdawar also inspected and proposed a rate of ₹1.5 lakhs
per marla, while Naib Tehsildar and Tehsildar suggested ₹6 lakhs per
kanal. However, Deputy Commissioner fixed the rate at ₹2.60 lakhs
per kanal, which landowners accepted under protest and filed
objections, followed by an arbitration claim. He stated his father died
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on 24.07.2006. Their family owned about 9 kanals 16 marlas in
Khasra No. 684 and 9 kanals in Khasra No. 707 jointly with his uncle.
He admitted not knowing precise ownership shares or compensation
details of earlier acquisitions. He denied that only his father was
aware of the proceedings and claimed, he himself attended them. He
confirmed knowledge of other acquisitions in the locality by Housing
Board (26 kanals 1 marla in 1994), Water Works Department (tube
wells in Khasra No. 755 in 2002-2003), but had no details of
compensation."
"PW Dilip Singh deposed that he owned 10 kanals 4 marlas of
land in village Deeli. Form "J" was issued in 2005 and compensation
was paid in 2006, but he and others rejected the same in writing as the
same was inadequate. He had claimed ₹10 lakhs per kanal, while the
Collector fixed ₹2.60 lakhs per kanal. The land, under Army
occupation, formed part of total 554 kanals 19 marlas acquired.
Patwari visited the spot on 16.07.2005 and the claimants told him their
land was worth ₹10-30 lakhs per kanal. He noted down rates after
making enquiries, including from the Santro showroom owners. The
land has 2600 feet frontage on National Highway. He also referred to
past acquisition of 26 kanals in 1994 at the rate of ₹2.30 lakhs per
kanal, contending that after 12 years, ₹2.60 lakhs was unjustified. He
also pointed out that the Deputy Commissioner, Jammu fixed ₹30
lakhs per kanal under Roshni Act and produced sale deeds of nearby
land. In cross-examination, he admitted limited knowledge of other
acquisitions in Deeli/Sunjwan (tube wells, sub-station, defense land).
He further stated that his land falls inside Army barbed wire fencing
with 40-50 feet road frontage, in Khasra Nos. 630, 644, 645. He
accepted that ownership vested under Agrarian Reforms Act, Section
3(A). A concrete irrigation canal (20-25 years old) runs through the
land. He showed ignorance about issuance of Form "I" and
comparative plot measurements."
"DW Rakesh Kumar, working in the Defense Department
since 1979, deposed that he has knowledge of the local area, including
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Deeli. He stated that the Army requisitioned the land in question in
1970, measuring 542 kanals 19 marlas, and acquisition proceedings
started in 1990. Form "I" under RAIP Act was issued in May 2005
and Form "J" thereafter. The DC Jammu obtained reports on average
sale rates, which were calculated at about Rs. 65,900/- per kanal, but
the committee of collectors proposed Rs. 2.70 lakhs per kanal. The
DC fixed Rs. 2.75 lakhs per kanal but the Ministry of Defense
approved Rs. 2.60 lakhs. While fixing the rate, the DC considered
earlier acquisitions in Deeli and Kunjwani. At that time, market value
was between Rs. 2-2.5 lakhs per kanal. He personally enquired about
nearby land rates but bought in Muthi at a lower price. He mentioned
that land prices increased after the construction of the National
Highway and earlier, the rate was only Rs. 10,000/- per kanal. He
supported the approved rate of Rs. 2.60 lakhs as correct. In cross-
examination, he admitted his postings in different places (Rajouri,
Jammu) and clarified that his knowledge is mainly based on records.
He confirmed Patwari‟s rate of Rs. 65,900/- per kanal but no direct
record of Patwari‟s market rate report was found. He also admitted he
could not read Urdu and had no knowledge of rates fixed under the
Stamps Act or Roshni Act, nor of claims made by landowners. He
acknowledged that prominent establishments (Santro showroom,
Vishal Mega Mart, City Farms, and Channi Himmat colony) are
around the land in question, which also has an 800-metre frontage on
National Highway byepass."
"DW Ashok Kumar S/o late Bihari Lal stated in his
examination-in-chief that he is dealing with requisition, acquisition,
and rent cases of Army land. He also monitors sale rates and prevents
outside interference. He is well aware of the land in question situated
at village Deeli, measuring 541 kanals 19 marlas, under Army
possession since 1970. Rent was paid to owners during requisition.
Later, for permanent requirement, the case was taken up for
acquisition and the State Government issued NOC in 1990. Form "F"
was issued in December 2002 and acquisition notice came in 2005. He
further stated that initially, Rs. 60,000/- per kanal was filed, and
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average sale rate of preceding three years was assessed at Rs.65,900/-.
However, the DC/committee proposed Rs. 2.75 lakhs per kanal,
considering earlier acquisition of 37 kanals 18 marlas in 2002-03 at
Rs. 2 lakhs. The final award was prepared at Rs. 2.75 lakhs and
forwarded for sanction. The Ministry of Defence, being the competent
authority, approved Rs. 2.60 lakhs per kanal and compensation was
paid accordingly. He added that in 2005, land rates in Channi
Himmat, Greater Kailash and Deeli were about Rs. 7,000-8,000 per
marla (i.e. much below Rs. 2 lakhs per kanal). He also clarified that
the land is not touching the bye-pass road, though situated between
Santro Showroom and Banquet Halls. In cross-examination, he
admitted that he is a resident of Pathankot with diploma in civil
engineering. He joined as SDO in Jammu in 2006 and earlier he was
posted at Rajouri during the acquisition process, though his family
stayed in Jammu. He admitted that the Collector fixed the rate subject
to Ministry of Defence approval, which can reduce the rate. Though
no sanction by Defence Minister is on record, sanction letters of
Defence Secretary dated 2001 and 2006 exist, including sanction
dated 22-03-2006 for Rs. 14,11,67,000/-. He also mentioned that his
friend Bhutta Ram accompanied him for land purchase but did not
buy. He denied suggestions that the front of the land is 800 meters
along National Highway or that the market value of land in Deeli was
Rs. 1 crore per kanal. He expressed ignorance about claimants‟
compensation claims, pending arbitration, or specific cases before this
Court."
"DW Balbir Singh S/o Ajit Singh in his examination-in-chief
stated that the land measuring 542 kanals 19 marlas is situated in
village Deeli, about 1 km away from Jammu-Pathankot National
Highway over the Bye-pass Road. He deposed that this land is
situated behind 37 kanals 18 marlas which had earlier been acquired
by the Army. The entrance of this land touches the Bye-pass road. He
further stated that the final assessment award for 37 kanals 18 marlas
was prepared in 2006 at the rate of Rs. 2,00,000 per kanal. The
Collector fixed the compensation in January 2005 at Rs. 2 lakhs per
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kanal, but the Ministry of Defence approved Rs. 2.60 lakhs per kanal,
and the compensation was disbursed to landowners accordingly. He
deposed that the average sale rate of preceding 3 years, as calculated
by the Revenue Department on the basis of sale data and records of
Deeli and adjoining areas, came to Rs. 65,900 per kanal. He
personally enquired about land prices in 2006 in Deeli and Greater
Kailash for building a house and found land available at Rs. 1.40
lakhs to 1.70 lakhs per kanal. He did not purchase as construction
would require heavy expenditure. According to him, the compensation
of Rs. 2.75 lakhs per kanal fixed by the Collector was more than the
prevailing market rate. He also mentioned that the land in question
lies between a banquet hall and a Maruti showroom, both commercial
establishments on the Bye-pass, set up on smaller land portions. On
cross-examination by counsel for the claimants, he admitted that he is
posted as a clerk in the DEO office since November 2006, and earlier
served in the AOC Department as clerk/typist. He cannot read or write
Urdu. He denied that the Marble Market was located at the back or
left of the land but admitted it may be about 1 km away. He clarified
that only 37 kanals 18 marlas touches the Bye-pass, with a 15 ft
approach road, but denied that the frontage is 800 meters. He
expressed ignorance about whether the land touches Channi Himmat
Extension or Trikuta Nagar Extension, or whether Gangyal Industrial
Extension lies on its right side. He admitted that the Tehsildar
proposed Rs. 6 lakhs per kanal as market rate and average sale rate of
Rs. 65,900 per kanal, but he was not aware of rates proposed by the
Girdawar, Naib-Tehsildar, or Assistant Collector. He denied the
suggestion that the Girdawar reported Rs. 1.50 lakhs per marla or that
the rate in Deeli was Rs. 1-2 lakhs per marla in 2005-06. He was
unaware of land values in 2002-2004 or whether the land was within
Municipal Limits. He also denied knowledge of the DC fixing Rs. 30
lakhs per kanal under Roshni Act, or the rates under J&K Stamps
Rules, or whether landowners claimed Rs. 10 lakhs per kanal. He
further stated that the Collector fixes rates under RAIP Act, but he did
not know under which provisions the Indenting Department (Ministry
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of Defence) approves rates, nor who in Defence is authorized to
sanction the same. He also did not know how many khasra numbers
were acquired."
22. One of the principles for determination of the amount of
compensation for acquisition of land would be the willingness of an
informed buyer to offer the price, therefore, the market value is ordinarily
the price, the property may fetch in the open market if sold by a willing
seller unaffected by the special needs of a particular purchase.
23. All the evidence on record shows that the land in question which
was acquired has commercial potential keeping in view the distance from the
highway and the land in question is surrounded by well developed colonies
where the rates have sky rocketed. These factors are to be considered while
considering the question of compensation.
24. The Hon‟ble Apex Court in Sabhia Mohammed Yusuf Abdul
Hamid Mulla (Dead) By Lrs. And Others v. Special Land Acquisition
Officer And Others AIR 2012 SC 2709 aptly delineates the principles and
the guidelines applicable on the case while fixing market value of the
acquired land, the Land Acquisition Collector is required to keep in mind the
following factors:
(i) Existing geographical situation of the land.
(ii) Existing use of the land.
(iii) Already available advantages like proximity to National or State High
Way or road and/or developed area.
(iv) Market value of other land situated in the same Locality/village/area or
adjacent or very near the acquired land.
25. For determination of the market value of the land potential is
important. Once it is found that the land is in the area which is a commercial
hub, the use or its distance from the main road, is rendered immaterial. The
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Defence Estates Officer has stated that the land is on the main road, which
shows that it has a tremendous commercial potential and as per the
arguments now submitted the land is a hub of commercial and residential
activities and many commercial enlistments has been established around this
land.
26. The Hon‟ble Apex Court in Viluben Jhalejar Contractor (Dead)
By Lrs. v. State Of Gujarat 2005 AIR SC 2214 held that
"20 The amount of compensation cannot be ascertained with mathematical
accuracy. A comparable instance has to be identified having regard to the
proximity from time angle as well as proximity from situation angle. For
determining the market value of the land under acquisition, suitable adjustment
has to be made having regard to various positive and negative factors vis-à-vis
the land under acquisition by placing the two in juxtaposition. The positive and
negative factors are as under:
Positive factors Negative factors (i) smallness of size (i) largeness of area
(ii) proximity to a road (ii) situation in the interior at a distance from the
road (iii) frontage on a road (iii) narrow strip of land with very small
frontage compared to depth (iv) nearness to developed area (iv) lower
level requiring the depressed portion to be filled up (v) regular shape (v)
remoteness from developed locality (vi) level vis-à-vis land under
acquisition (vi) some special disadvantageous factors which would deter a
purchaser (vii) special value for an owner of an adjoining property to
whom it may have some very special advantage
21 Whereas a smaller plot may be within the reach of many, a large block of
land will have to be developed preparing a layout plan, carving out roads,
leaving open spaces, plotting out smaller plots, waiting for purchasers and the
hazards of an entrepreneur. Such development charges may range between 20%
and 50% of the total price."
27. It also remarked that although deduction for development is
generally permissible, it is inappropriate where the land is practically
"readymade" for non-agricultural use and minimal development is needed.
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28. Argument of the learned counsel for Defence Estates Officer that
the land was agricultural at the time of requisition and deduction in cases of
acquisition of huge chunk of land as development charges towards the area
needs to be made as such is not supported by an evidence. Evidence on
record shows that army had constructed residential premises in the year 1985
and the nature of the land immediately changed. The argument of the learned
counsel for Defence Estates Officer that three lacs per kanal as
compensation which was asked by the claimants as perform J is not
supported by the record no document has been produced to prove this fact
that initially the compensation which was claimed by the claimants/
beneficiaries was 3.00 lacs only. Learned counsel for the claimants has
submitted that in view of the land which is yet to be developed, only there
the decision will be made for development and where the area is already
developed as is in the present case there is no need to deduct the
development charges.
29. Learned Arbitrator based on apex court judgments held that there
are 45 claimants and small chunks of land are being acquired from each of
the claimants who are the beneficiaries from some claimants. Even 19
marlas of land is being acquired and from some more than 20 Kanals is
being acquired. The land has not been used for development purposes as was
acquired and it is individuals whose land has been acquired from 19 marlas
to 25 kanals at the most. The arguments of the Ld. Counsel for the defence
estates officer can be considered for development.
30. The witnesses, who appeared on behalf of the respondents i.e.
Defence Estates Officer, have not disclosed the basis on which Ministry of
Defence has fixed it and there is no justification for such a low rate. On the
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evidence and material as it is on the record the rate of compensation fixed by
the ministry of defence is clearly arbitrary and un-reasonable. There is no
justification offered on behalf of the Collector and there is absolutely no
material in that behalf on that record for ignorance of the recommendation of
the concerned Tehsildar on the market rate of land being rate 6 lac per kanal.
District collected thereafter toned down the same to 2.75 lac which itself is
arbitrary as the same has no valid basis and is not supported by any evidence
or material. The land cannot be said to be agricultural and its commercial
potential has not been taken into account which is evidenced by the position
on spot as on today as the land in question is today rated at Rs. 1 crore 50 lac
per kanal as the land is now surrounded by commercial hubs and many posh
colonies.
31. When the demand for land was soaring at and around the area of
the Airport, and the land of the claimants, being just at the distance of 3 KM
from the main gate of the Airport, and, thus, for all practical purposes, is
included within the area of Airport. There is a flourishing market up to the
said land, and beyond. The geographical situation impacting favourably on
the rising rate of compensation cannot be ignored. The market rate
recommended by the Tehsildar too cannot, as contended by the claimants, be
the real market rate. In quest for actual market rate, the rate recommended
by the Tehsildar will have to be suitably enhanced. In consideration of the
aforesaid factors, and, at the same time, denial of lawful compensation to the
claimant over a long period of 2 decades, which too must weigh in on
equitable considerations, the market rate has to be determined.
32. The evidence of the claimants as to rate of compensation may not
be ignored, but in the absence of documentary evidence, the same may not
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be wholly acceptable. Considering all the factors together, it is just and fair
that compensation at the rate of 7,00,000/- per Kanal is awarded in favour of
the claimant families.
33. The size of the land in acquisition is not of a consequence in the
present case; the land acquired is just an aggregate of different small size
holdings belonging to different claimants. The geographical location of the
land, the tremendous commercial potential thereof. The principles of equity
being in favour of the claimants by reason of denial to them their due over
such a long period of time and in the meantime jump in the market rate, and
the area being already developed, all together render, in any case, the large
size of the land in acquisition into relevance in the matter of determination
of the market rate. Since, as stated earlier, the point of reference in terms of
time for the purposes of such determination is, in the facts and circumstances
of the present case, not fixed, the present rate of land cannot be lost sight of
as a legal and equitable consideration for arriving at the genuine market rate,
and that by itself reduces the weight of consideration on account of land in
acquisition being a larger chunk. The idea underlying the consideration on
account of large chunk being under acquisition is to provide for the cost of
development; but where the land is already developed, no deduction on
account of such consideration is permissible
34. In concluding the matter, it can be said that Ld. Arbitrator did not
err in increasing the price of compensation in said property from Rs.
2,60,000 to Rs. 7,00,000 per kanal at commercial rate. The property in
question is not agricultural property and its value for compensation has to be
deduced based on it being of commercial nature this was supported by the
fact that the said land is surrounded by Channi Himmat and Trikuta Nagar
2025:JKLHC-JMU:3414
Housing Colonies from the back and on the front side is National Highway
across which Posh Greater Kailash and Sainik Colony have been developed.
The land is situated between Santro Show Room and City Farms/Utsav
Banquet Halls and Lajwanti Hospital and opposite to Fair Deal Motors
showroom. The averment in relation to development charges being reduced
is also denied as the land cannot be considered to be under developed due to
the investment made by the army. The amount of compensation at Rs.
7,00,000/- per kanal awarded by the Arbitrator is just and reasonable.
35. Having regard what has been stated hereinabove, this appeal shall
stand disposed of by upholding the amount of compensation at Rs.7,00,000/-
(Rupees Seven Lakh) per kanal awarded by the Arbitrator. However, interest
awarded by the Arbitrator at the rate of 12% per annum is reduced by 6%
per annum.
36. This appeal is disposed of in the above terms.
(VINOD CHATTERJI KOUL)
Judge
JAMMU
16.10.2025
RAM MURTI/PS
