Full Judgment Text
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PETITIONER:
STATE OF J & K
Vs.
RESPONDENT:
MOHAMMED MATEEN WANI & ORS.
DATE OF JUDGMENT: 23/07/1998
BENCH:
G.T. NANAVATI, S.P. KURDUKAR
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
S.P. KURDUKAR, J.
Leave granted,
(2) This Court vide its order dated 21.3.96 directed that
LPA No.12/93 pending in the High Court of Jammu & Kashmir be
transferred to this Court and the same be heard along with
S.L.P. (C) No.1779 of 1994 since an identical question is
involved in both the matters arising out of the Judgment
dated 17.8.93 in Civil Appeal No.38 of 1992 and Civil Appeal
No.42 of 1992 passed by the High Court of Jammu and Kashmir
at Jammu. Few facts leading to the present proceedings may
be summarised as under:-
(3) A chunk of land admeasuring 642 kanals and 12 marlas of
village Punzgam, Distt. Pulwama belonging to the respondents
was acquired by the Land Acquisition Collector Pulwama by
invoking Section 17 of the land Acquisition Act. This land
was acquired at the instance of Union of India for public
purpose. The land Acquisition Collector on payment of
compensation of Rs.57,34,621 to the various claimants, took
possession of the land on December 11, 1986. After service
of notice under Section 9 of the Land Acquisition Act the
claimants filed their claims before the Collector who after
taking into account the sale instances and the other
material by his award dated June 29, 1989 awarded
compensation of Rs. 1,06,55,150.00/- for land;
Rs.33,70,781.00/- for fruit bearing trees and Rs.72,600/-
for structure & tubewell. An amount of Rs.2114779.60 was
awarded as Jabirana (solatium). Thus the total amount under
award came to Rs.1,62,13,310.65. On this total amount under
award came to Rs.1,62,13,310.65. On this total amount of
compensation an interest was awarded @ 6% for one year from
the date of taking over the possession of the land
(possession was taken over on 11.12.1986) and 10% after
expiry of one year. The total amount of interest awarded by
the Collector came to Rs.7,87,632.45. It may be stated that
the Collector divided the acquired land into three
categories bearing in mind the nature and quality of land as
recorded in the revenue records. He accordingly fixed the
market value in respect of these three categories at
Rs.17,000/-, Rs.15,000/- and Rs.14,000/- per kanal
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respectively.
(4) The claimants being dissatisfies with the amount of
compensation awarded by the Collector filed petitions under
Section 18 of the Land Acquisition Act and sought a
Reference to the civil court for determination of the market
value. Before the Reference Court the claimants in their
claim petitions stated that their lands should be valued not
less than Rs.25,000/- and they should be paid not less than
Rs.60,000/- per kanal (sic) and also claimed higher
compensation on various other items. The claimants in
support of their claim for enhancement of compensation,
produced sale instances and the report was made by the
Patwari, Tehsildar and recommendatory letter of a local MLA
for increase in the compensation. The Union of India
produced two witnesses but, however State of Jammu and
Kashmir remained ex-parte.
(5) The District Judge, jammu after hearing the parties and
on appraisal of oral and documentary evidence on record by
his Judgment and decree/ award dated 9.9.92 enhanced the
compensation at the flat rate of Rs. 45,000/- per kanal
rejecting the categorisation of land as done by the
Collector and upheld the other claims granted under the
award. In view of enhancement of compensation
proportionately the amount of interest and solatium also
stood enhanced. The District Judge awarded Rs.50,000/-
towards cost to the claimants against the appellant.
(6) Being dissatisfied with the judgment and decree passed
by the District Judge, the Union of India filed First Appeal
No.42 of 1992 whereas the State of Jammu and Kashmir through
Collector filed First Appeal No.38 of 1992 in the High Court
of Jammu and Kashmir. Both these appeals were heard together
by the then acting Chief Justice of Jammu and Kashmir who by
his common Judgment and decree/award dated 17.8.1993
dismissed these appeals. Aggrieved by the judgment and
decree/award the Union of India filed LPA No.14 of 1992 in
the High Court of Jammu and Kashmir whereas State of Jammu
and Kashmir through Collector filed SLP (C) No.1779 of 1994
in this Court. At the time of the preliminary hearing of the
SLP, it was brought to the notice of this Court that the LPA
No.12 of 1993 filed by the Union of India in the High Court
of Jammu and Kashmir is pending for final hearing. In these
circumstances this Court on 21.3.1996 passed an order
transferring LPA No.12 of 1993 to this Court and directed
that the same be heard along with SLP No.1779 of 1994. It is
accordingly stood transferred and came to be numbered as
T.C. (Civil) No. 43/96. This is how both these matters were
heard together and they are being disposed by this common
judgment.
(7) Mr. S.K. Dholakia, Learned Senior Counsel appearing for
the State of Jammu and Kashmir and Mr. K.N. Shukla. Learned
Senior Counsel appearing for the Union of India assailed the
judgments of the courts below on various grounds. It was
contended on behalf of the appellants that there was no
legal evidence on record which would justify any enhancement
in respect of value of the land. It was also contended that
the claimants having been awarded the compensation treating
the acquired land as an orchard land and therefore no
separate compensation could be paid in respect of fruit
bearing trees, tubewells and structures thereof. It was then
urged that the District Judge as well as High Court has
committed as serious error in exercising the discretion
while awarding heavy costs to the claimants against the
appellants. Learned counsel, therefore, urged that the
Judgment and decree/award passed by the District Judge and
on appeal confirmed by the High Court be set aside and the
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award made by the Collector be restored.
(8) Mr. D.D. Thakur, Learned Senior Counsel appearing for
the respondents/claimants supported the judgment and
decree/award passed by the courts below and urged that
having regard to the peculiar facts and circumstances of the
case and also having regard to the pausity of the vacant
land in the State, the courts below were justified in
enhancing the compensation of the land. As regards the
compensation for fruit bearing trees. Learned counsel urged
that it is the practice in the State of Jammu and Kashmir
which is based on the circulars issued by the State
Government for awarding the compensation separately in
respect of fruit bearing trees. he then urged that the
acquired land is a platue which is never affected by floods
in the State. He further urged that the acquired land is
situated in a prime locality having a building potentiality.
The courts below in exercise of their discretion awarded
costs to the claimants and therefore, this Court would be
slow in interfering with the discretionary order. He,
therefore, urged that both these appeals be dismissed.
(9) We were taken through the judgments of the courts below
as also the oral and documentary evidence on record. From
the material placed on record it appears that there was no
justification to divide the acquired land into three groups
and the courts below were, therefore, right in awarding
compensation for the acquired land treating it as one
compact block.
(10) Coming to the challenge as regards the enhanced
compensation for the land we find that the sale instances
relied upon by the claimants can hardly be treated as
comparable instances. The sale instances relate to small
parcels of lands not more than 3 to 4 marlas each. Only one
sale instance was sought to be proved by the claimants
through the evidence of Mohd. Shaban, who had stated that
three marlas of land in the close viscinity of the acquired
land was sold to a cooperative society @ Rs.33,000/- per
kanal. Other sale instances although produced on record but
the same were not proved by the claimants either by
examining the vendor or the vendee. As stated earlier these
sale instances are of a very smaller area and, therefore,
they cannot be said to be comparable sale instances to
determine the market price of such a big chunk of acquired
land. The other evidence adduced by the claimants is
consisted of the oral testimonies of lumbardars and local
zamindars. Their oral evidence could hardly be accepted as a
guide for determining the market price of the acquired land
because they were not experts. The net result, therefore, is
that the evidence of the claimants as regards the sale
instances cannot be accepted as a measure to determine the
market price of the acquired land. The only evidence which
would have a bearing upon determination of the market price
of the land is the report of local Tehsildar. It is not
disputed that D.C. of Distt. Pulwama had asked the local
tehsildar to inspect the acquired land and make a thorough
enquiry as regards the price prevailing in the locality
where acquired land is situated. Accordingly he submitted
his report dated 14.5.1987 which is Annexure 5 annexed with
Transfer Case (C) No.43/96. This report was relied upon by
the land acquisition Collector and at the trial it is taken
on record without being objected to by the State of Jammu
and Kashmir and Union of India. No challenge to the said
report was made by either of the appellants before the
District Court as well as before the High Court. The
Tehsildar in his capacity as a Government official in
discharge of his duties submitted the report and in his
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report he had stated that the market price of the acquired
land would be Rs.30,000/- per kanal. No serious arguments
were advanced before us on behalf of the Union of India or
State of Jammu and Kashmir which could persuade us to reject
the said report. In these circumstances we are of the
considered view that the report dated 14.5.1987 furnished by
the Tehsildar was rightly relied upon by the courts below
for determining the market price of the acquired land. The
District Judge and the High Court while enhancing the
compensation to Rs.45,000/- per kanal for the acquired land
mainly relied upon the sale instances which we have
discarded as not being comparable. The other evidence which
found favour with the District Judge and the High Court was
the oral evidence of local Lambardars, zamindars and one of
the claimants. Their evidence in our considered view would
not furnish any basis for determining the market value. The
courts below in our considered view have committed a serious
error of law in relying upon the sale instances which were
found by us not comparable while enhancing the market value
of acquired land. In view of this factual position, we are
of the view that the respondents/claimants would not be
entitled for compensation in respect of their lands for more
than Rs.30,000/- per kanal.
(11) As regards the compensation in respect of fruit bearing
trees and tubewells the High Court had relied upon the
Government circular which allows compensation in respect of
fruit bearing trees and tubewell separately. Nothing
contrary has been brought to our notice and, therefore, we
do not think it proper to disturb the said finding.
(12) Coming to the cost awarded by the District Judge and
the High Court we see no justification whatsoever to grant
such a heavy cost to the claimants. The discretion as
regards the imposition of cost needs to be exercised
judicially and the orders regarding costs made by the
District Judge as well as by the High Court are accordingly
quashed and set aside. However claimants would be entitled
for usual cost prescribed by law proportionately.
(13) For the reasons records hereinabove the appeals are
partly allowed. The judgments and decrees/awards passed by
the courts below are modified to the extent of valuation of
the lands acquired. The respondents/claimants would be
entitled to receive compensation in respect of their
acquired land @ Rs.30,000/- per kanal and not Rs.45,000/-
per kanal as awarded by the courts below. It is needless to
add that the executing court will finally determine the
amount of compensation payable to the respondents/ claimants
in accordance with law and in terms of this judgment. If any
excess payment is found to have been made to the
respondents/claimants, the same be returned to the appellant
with interest @ 10% per annum from the date of receipt of
the amount till it is returned. The appellants as well as
the respondents would be entitled the cost proportionately
in all courts. The appeal and T.C. No. 43/96 to stand
disposed of accordingly.