State Of J. And K. v. Smt. Hamida Begum And Others

Mian Jalal-Ud-Din, C.J:— This appeal is directed against the judgement and decree of the Additional District Judge Srinagar dated 17-9-1975 and 6-10-1975, passed by him in a reference made by the Collector in the course of land acquisition proceedings.

2. Briefly put the facts of the case are: Land measuring 12 kanals and 3 marlas situate in Barzulla was occupied by Hydraulic Division in the year 1960 pursuant to the scheme of raising of the bund for protecting the locality of Bhagat, Burzalla from flood waters. Nine years after the possession of the land was taken the Government issued a notification on 2-4-1969 for regularising its possession by acquiring the said land. After issuing the relevant notification, under the Land Acquisition Act, the Collector vide his order dated 4-2-1970 made the award. After obtaining the approval of the Revenue Minister he announced the award fixing compensation at Rs. 5192/- per kanal. Mst. Hamida Begum respondent No. 1 felt dissatisfied with the award. She, therefore, sought reference under S. 18 of the Act on the ground that the market value per kanal of land in the locality was Rs. 17,000/- as against Rs. 5192/- assessed by the Collector. The reference came to be heard by the Additional District Judge, Srinagar. The Collector in his objections challenged his own award by submitting that the total area of land was 12 kanals and 3 marlas including 5 kanals and 10 marlas of land which was Shamilat (Mahfooz Kahcharia). The petitioner could not claim compensation for the category of the land described as (Mahfooz Kahcharia Shamilat Deh). He also disputed the claim of the petitioner to get enhanced rate of compensation in respect of the other lands. The following issues were framed in the case:

1. Whether the reference was time barred? OPD

2. Whether compensation for the entire area was not payable to the petitioner? OPP

3. What is the market value of the land? OPP

4. Whether compensation for fruit bearing trees has not been paid and what should be the amount for that purpose? OPP

5. How much of interest can be claimed by the petitioner? OPP

6. Whether the Custodian was entitled to compensation if so to what extent? OPD.

7. To what relief the petitioner is entitled? OPP

3. On appraisal of the evidence which the parties adduced before him, and after hearing the arguments in the case, the Addl. District Judge, decided Issue No. 1 against the appellant and held that the reference was within time. In so far as the other issues were concerned, the parties examined Sharif Din Naib Tehsildar, Niranjan Nath Patwari, Maharaj Krishan Jalali, Assistant Engineer, Dr. Abdul Qayoom Superintending Engineer, Ummar Jan Collector, Ghulam Rasool Baba Custodian, Abdul Gani Malik Director Horticulture, Syed Maqbool Executive Engineer, Radha Krishen Patwari, and Ali Mohammad Buch. The learned Judge repelled the contention of the Collector that the petitioner was not entitled to claim compensation in respect of 5 kanals and 10 marlas of land described as (Mahfooz Kahcharia Shamilat Deh). As regards the value of the land the learned Judge found that the rate per kanal as assessed by the Collector was not correct. In the opinion of the learned Judge the fair market value was Rs. 10,000/- per kanal. He, however, did not accede to the request of the petitioner to seek separate compensation in respect of fruit bearing trees. On the issue as to from which date the petitioner respondent was entitled to claim interest, the trial court held that interest can be claimed from the date of taking over possession of the land and not from the subsequent date when the notification under S. 6 of the Act was issued. He, therefore, allowed interest from the date of taking over possession at the rate of 6½% per annum. On the question as to whether the Custodian was entitled to compensation and to what extent, the learned Judge observed that a portion of land which belonged to Maulvi Mohd. Rakub, who was an evacuee had vested in the Custodian and Mr. Shamim Ahmad Shamim the son of Mohamad Yakub was only an allottee of the same. But as the claim of Shri Shamim Ahmed Shamim to get compensation was turned down by the Custodian General, therefore, the payment to Shri Shamim had been made wrongly. As a matter of fact, it is the Custodian, who is entitled to get compensation for the evacuee land. The learned Judge, therefore, ordered that the amount of compensation for the evacuee land should be paid to the Custodian. However, by a subsequent order on an application made by Shri Shamim under Section 152 of the CPC the court by way of clarification passed a supplementary order observing that the enhanced rate of compensation allowed by him in his judgement dated 17-9-1976 in the case of Mst. Hamida Begum would also apply to the evacuee land allotted to Shri Shamim. Aggrieved by the judgement and decree of the trial court as also by the order on the application of Shamim, the Collector has come up in appeal before this court. Learned counsel for the appellant has assailed the judgement of the trial court on the ground that it is founded upon that evidence which has been brushed aside by the High Court in appeal after directing fresh trial in the case. The lower court has failed to apply its mind to this aspect of the question and has based its judgement on inadmissible evidence which was recorded at the time when the Custodian was not a party to the proceedings. After the case was remanded, and fresh trial had started and the parties were directed to adduce evidence afresh, the previous evidence on the file could not be pressed into service for basing its finding by the court. Only that evidence which was recorded after the order of remand could be looked into and acted upon. Learned counsel has submitted that the evidence produced by the respondents consists of the oral statements whereas the evidence produced by the appellant is based on revenue records and other documents. It is urged that the court has wrongly allowed compensation to the respondents for 5 kanals and 19 marlas of land which is Shamilat land as no compensation for this category of land can in the eye of law be claimed by the respondent. The court has without any rhyme or reason enhanced the rate of compensation. Moreover, the court has wrongly assessed interest from the year 1960 when possession of the land had been taken. As a matter of law, interest could be claimed and assessed from the date when the notifications under Sections 4 and 6 of the Land Acquisition Act were issued in the year 1969 and not from the year 1960. The court also wrongly allowed interest at the rate of 6% per annum from the year 1960 whereas it should have allowed interest at the rate of 4% per annum. It is further contended that Shri Shamim Ahmed Shamim was not a party to the reference. He had not sought reference and yet the court adopted a novel procedure by arraigning him a party after the judgement was delivered. His name was wrongly entered in the decree sheet. For all these reasons, the counsel has submitted that the judgement and decree of the Additional District Judge be set aside and the award of the Collector be restored with the modification that no compensation be allowed in respect of Shamilat land.

4. Mr. Hussain has argued this case as an attorney of respondent No. 1. He has submitted that the witnesses produced by the Collector have admitted that the market value of the property at the relevant time was more than Rs. 20,000/- per kanal and that the site of the property was excellent. He has invited our attention to the statements made by Ghulam Rasool Baba Custodian, Radha Krishen Patwari, Ali Mohammd Buch Tehsildar, Mst. Hamida Begum the respondent produced a number of witnesses including Mohammad Ibrahim Shahdad Advocate, who stated that the market value on spot exceeded Rs. 20,000/- per kanal. The learned Attorney has repudiated the contention of the learned counsel for the appellant that the evidence recorded earlier could not be read. He has submitted that this evidence is extant on the file and could be read in the case. Moreover, Ghulam Mohammad Khan Deputy Custodian had made a statement on 7-4-1973 that he adopted the entire evidence led by Mst. Hamida Begum. The Custodian who was impleaded in the case had accepted the evidence led by Mst. Hamida Begum. Therefore, if the Custodian had adopted the evidence adduced by Mst. Hamida Begum, and had prayed that this be treated as evidence in the case, there was nothing wrong on the part of the learned Judge to have relied on that evidence. No prejudice had in fact been caused to the Collector who had been given opportunity to cross-examine the witnesses who were examined in the case before the order of remand was made. Mr. Hussain has laid emphasis on accepting the cross-objections which he has filed and in which he has claimed Rs. 20,000/- as rate of compensation per kanal on account of the potential value of the land The lower court should have added 25% to the total compensation by making an allowance for the potential value of the land. Mr. Hussain has also submitted that when possession of the land was taken over by the department as early as 1960 and the notifications under Ss. 4 and 6 were published much after in the year 1969, it was quite clear that the petitioner could claim Jabrana and interest from the date of the taking over of possession and not from the subsequent date when the notifications were issued. In regard to the argument that the Collector should not have awarded compensation in respect of Shalimat land Mr. Hussain, has submitted that the petitioner was entitled to claim compensation for this category of land in the same way as for the land of which she was the owner. Under the Rules framed under the Land Acquisition Act, it is provided that Shamilat land is to be treated as proprietary land for all purposes of acquisition. The order of reference made by the Collector indicated that the Collector had made the reference under Sections 18 and 30 of the Land Acquisition Act wherein he has admitted that the compensation has been allowed in respect of Shamilat Deh land and other villagers have also been shown as parties. If this were a State land, then, of course, the position would have been different and the Collector could not award compensation for this land. Shamilat land is not Khalsa land i.e State land, therefore, it having remained in possession of Mst. Hamida Begum since a long time as owner, she is entitled to get compensation for this land as well. The Collector is estopped from challenging his own award.

5. Mr. Shamim Ahmed Shamim has argued the case in person. He has conceded that no reference has been made under S. 18 of the Act to the District Judge at his instance. The reason for this, he has explained, is that no notice under Ss. 4 and 9 of the Act was issued by the Collector to him.

6. In fact he had no knowledge of these notices or of the acquisition proceedings initiated by the Collector. In view of the argument advanced, it is clear that compensation could not be enhanced in his case by the District Judge as no reference was made by the Collector and no notice was given to Mr. Shamim by the District Judge as required by S. 20 of the Act. The scope of the enquiry in the reference is restricted to the consideration of interests of the persons who claim or who object to the enhancement of compensation. Mr. Shamim has submitted that in the absence of any notice either under S. 4, or S. 9 or Section 20 of the Act he has a right to pursue another legal remedy available to him. A Division Bench of the Calcutta High Court in B.N Banerji v. M. Roy, AIR 1962 Cal 275 has observed that where a person is not served with a notice under S. 9 of the Act or even under S. 12(2) and for that reason fails to prefer his claim or objection before the Collector, within the statutory period, it cannot be said that the special remedy under the Act being thus lost such a person cannot seek his remedy in the ordinary court of law. The liability to resort to special jurisdiction only arises when a person is alerted by special notice provided for by the Act namely notice under S. 9 and other relevant Sections. For what has been stated above, Mr. Shamim may pursue such legal remedy, if so advised, as is available to him under the law.

7. In so far as the case of Mst. Hamida Begum, respondent is concerned, it stands on a different footing. It may be mentioned here that she has also filed cross-objections in which she has claimed enhanced compensation at the rate of Rs. 17,000/- per kanal. According to her it is established from the evidence that the locality is a posh area with all the amenities of urban life and this locality has grown into a residential area. The appeal as also the cross-objections will be disposed of by judgement.

8. The petitioner respondent seeks compensation in respect of 5 kanals and 19 marlas of land which is Shamilat Deh Mahfooz Kahcharari. The Collector has also assessed compensation in respect of this area of land. He has now himself challenged his own award. It is doubtful if the Collector can repudiate his own award by filing objections. Is he not estopped from challenging his own award when the same has also been approved by the Revenue Minister? If there were any legal flaws in the preparation of the award in so far as Shamilat land was concerned, either the Collector or the Revenue Minister could have looked into the matter and if they were of the opinion that compensation could not be awarded, for this category of land, the Revenue Minister could have out-right disallowed it. Moreover, this was not the subject matter of reference. As already observed the scope of the enquiry is restricted to the consideration of the matters raised in the reference. As a matter of fact, the dispute raised by the Collector is not with regard to the legal aspect of the matter, whether compensation can be assessed in respect of Shamilat land but as per schedule annexed with the reference, his case is that compensation with respect of this land is to be distributed amongst the village folk who are also interested in the Shamilat land and he has sought the opinion of the court on this question. It, however, appears that the determination of the right with respect to Shamilat land was admittedly the subject matter of dispute between the village folk, who are respondents and whose names appear in the Schedule and Mst. Hamida Begum respondent-petitioner. The evidence produced by Mst. Hamida Begum clearly establishes the fact that she has been in possession of this strip of land for a considerable period of time. Shri A.N Raina, Advocate, who appeared as a witness in the case has deposed that there was a litigation as early as in Samvat year 2003, between Mohamad Yakub and Ali Parray and others. He has proved the documents Ex. PA and Ex. PB the decree sheets. The dispute between one of the petitioners and the village folk was resolved by the court by passing a decree on the basis of a compromise entered into between the parties according to which the rights of one of the petitioners were acknowledged and it was agreed that the land is question was in exclusive possession of the petitioner and that the village folk had no concern with this land. So when this area of land has been in exclusive possession right from the date when the decree was passed and even earlier to that i.e before Samvat year 2003, and the villagers including respondents Nos. 4 to 11 conceded the right of the petitioner in the land, it cannot be said that any other person residing in the locality has got right to claim compensation in respect of this area of land. What has been stated has not been seriously contested before us. As a matter of fact what has been argued before us is that even the applicant is not entitled to claim compensation for this category of land because it is Shamilat Deh. It is common knowledge that the rights and incident of Shamilat land in occupation of a person are the same as if he is the owner thereof. Had this been State Khasla land, the position would have been different. The mere fact that Shamilat land was reserved for grazing purposes would not militate against the fact that the petitioner is the owner thereof and that she has remained in possession thereof before the samvat year 2003. Even in extreme cases where the Government grants land on certain conditions and the conditions are not enforced by the Government and the land is afterwards acquired under the Land Acquisition Act, the latter cannot refuse compensation to the possessor of the land. That is what has been observed in AIR 1968 SC 105. Then when compensation cannot be refused to a person in occupation of the land granted by the Government, which in other words means, that the land is State land, how can it be said that in the present case the petitioner is not entitled to compensation for the Shamilat land of which she is in de facto and de jure possession. I would, therefore, agree with the observations made and the finding recorded by the District Judge in this behalf.

9. The learned trial Judge has on consideration of evidence found that the market value obtaining at the relevant time in the locality was Rs. 10,000/- per kanal. He has come to this conclusion after considering the entire evidence on the record. The witnesses examined in the case have undoubtedly spoken about the potential value of the land. Some of them have stated that market value would exceed Rs. 10,000/- per kanal. Mr. Ibrahim Shahdad Advocate who resides at Burzalla has testified to the fact that the market value of the land in question would be above Rs. 18,000/- per kanal. Mr. Ali Mohamad Buch, Tehsildar Badgam has stated that in the year 1967 different pieces of land in the area were sold even above Rs. 20,000/- per kanal and according to him the average market value was Rs. 10,000/- per kanal. The Collector has admitted that according to the Tehsildar the prevalent market rate in the locality was Rs. 10,000/- per kanal. The Collector has taken the average sale rates of the last three years and has assessed it at Rs. 5192/- per kanal. This in my opinion was not the correct way of assessing the compensation. While assessing compensation for the property, sales effected in the locality proximate in time and place are relevant to be considered. In the present case, the statements made by the witnesses clearly establish that Rs. 10,000/- is the average market value of the land. This area has undoubtedly grown into a building site. It has all the amenities of urban life and therefore, in my opinion, as also found by the learned trial Judge, the rate of compensation per kanal assessed at Rs. 10,000/- cannot be said to be excessive.

10. Mr. Oberai has argued that the evidence recorded in the case cannot be read against the Custodian because, this was recorded before the Custodian was made a party to the proceedings. Now we find that there is the statement of the Deputy Custodian on the record which is dated 7th of April, 1973. In this statement the Deputy Custodian has stated that he would not produce any evidence on behalf of the Custodian in the case and that he would adopt the evidence produced by the petitioner (Mst. Hamida Begum). In face of this statement, there is no force in the argument advanced before us. When the Deputy Custodian agreed to accept the evidence produced by the respondent in the case, he cannot now make a grievance of the fact that the evidence cannot be pressed into service. The argument is devoid of force and is, therefore, rejected.

11. I, however, agree with the contention raised by Mr. Malik and Mr. Oberai that solatium and interest could not be awarded from the date the intending depts, took over possession of the land. Under law solatium and interest can be allowed from the date when the notification notifying the fact of acquisition is published in the Gazette. It is true that the possession of the land was taken over by the intending department in the year 1960 before the acquisition proceedings were started. It was in the year 1969 that regular acquisition proceedings were initiated. In my opinion, it will be from the year 1969 and not from the year 1960 that solatium and interest can be allowed in favour of the respondent. Moreover the trial Judge has made an error in awarding interest at the rate of 6½% per annum. The statutory rate prescribed is 4% per annum. I would, therefore, modify the judgement and decree to this extent that solatium at the rate of 15% would be assessed from the year 1969 and the rate of interest would also be assessed from the same date and at the rate of 4% per annum. If the respondent has any claim in respect of compensation for the use and occupation of the land in question from the years 1960 to 1969, she may, if so advised, file a regular suit for damages or compensation for its use and occupation against the department concerned. But so far as these proceedings are concerned, she cannot claim any compensation from the year 1960 to 1969 under the Land Acquisition Act. She is at liberty to pursue some other remedy for claiming compensation for these nine years, if so advised.

12. I also do not find any force in the cross-objections. In my opinion, the market value assessed by the trial Judge is quite reasonable and I do not find any legal infirmity in the same. It cannot be enhanced at the request of the respondent.

13. The result is that the cross-objections are hereby dismissed.

14. In the result, the decision of the trial Judge in regard to the market value of the land is hereby confirmed. But the decree is however, modified to this extent that solatium at the rate of 15% and interest at the rate of 4% per annum will be calculated from the year 1969, the date when the notification under S. 4 of the Act was issued. With these observations, the appeal is otherwise dismissed. In view of the peculiar circumstances of the case, we make no order as to costs.

Dr. A.S Anand, J.:— I agree.

15. Appeal dismissed.