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2002 DIGILAW 273 (JK)

Yash Rani Rohmetra v. Union Of India

2002-08-23

S.K.GUPTA

body2002
Aggrieved by the award dated 4-5-1994 passed by the Arbitrator (Ex-Officio District Judge. Jammu), the petitioners /appellants have preferred this appeal under S. 10 of the Requisitioning and Acquisition of Immovable Property Act, 1968 to impugne its correctness and prayed for enhancement of the award. A cross-Appeal bearing No. 130/1994 has also been filed by the respondents for setting aside the award, whereby the rental compensation has been enhanced by allowing recurring increase after every five years. Out of the totality of the land measuring 16 kanals and 3 marlas containing in Khasra No. 216 located at village Jugwal, Tehsil R.S. Pura, District Jammu, is stated to have been occupied by the Army since 3-1-1973. This land was, however, requisitioned under the Jammu & Kashmir Requisitioning and Acquisition of Immovable Property Act, 1968 (hereinafter referred to as the Act 1968�) by the Deputy Commissioner. Jammu on 6-8-1974. The petitioners/appellants claimed that their land being irrigated, the rate of rent paid by the Army is too meagre and it should not have been less than Rs.500/- per kanal per year and worked out annual rent at Rs.8,057/- for the period the land remained in the possession of the Army. When the respondents declined to pay rent at enhanced rate as claimed by the petitioners/appellants, the petitioners filed a writ petition in this High Court, in which a direction was given to the Government to refer the matter under S. 8 of the Act 1968, to the Arbitrator. The District Judge was, however, appointed as an Arbitrator by the Government vide SRO-251 dated 21-8-1991. 2. The stand of the respondents before the Arbitrator was that, the rent assessed at the rate of Rs. 16/- per kanal per annum for 6 kanals 12 marlas calculated from 3-1-1973 to 2-1-1976 has since been paid. However, the payment of rent for the remaining land is awaiting the assessment by Tehsildar, R. S. Pura. The Arbitrator, on the contents and contours of the pleadings of the parties, framed the following issues for settlement. 1. Whether the category of the petitioner™s land requisitioned by the respondents? OPP 2. What should have been the actual rent payable to the petitioners from the date of requisition of the land? OPP 3. To what amount the petitioners are entitled. OPP 4. Relief� 3. 1. Whether the category of the petitioner™s land requisitioned by the respondents? OPP 2. What should have been the actual rent payable to the petitioners from the date of requisition of the land? OPP 3. To what amount the petitioners are entitled. OPP 4. Relief� 3. After the parties have led evidence in support and rebuttal of the issues and hearing the arguments, the Arbitrator made the following award. 1. Compensation from 3-1-1973 to 31-7-1986 will be paid at the rate of Rs. 85/-per kanal for 16 kanals 3 marlas of land to the petitioner according to their share. 2. From 1-8-1986 to 31-7-1991 at the rate of Rs.150/- per kanal. 3. In future after every five years rent shall be enhanced by 10% until it reaches the maximum of Rs.250/- per kanal whereafter the matter can be reagitated in the absence of any agreement between the parties. However, in case the petitioners are entitled to enhanced compensation under the rules as against the increase of 10% they shall be entitled to higher rate of the two. Petitioners are thus entitled to Rupees 1372.75 x 13 = Rs. 17,845.75 from 3-1-1973 to 31-7-1986 and Rs.2422.50 x 5 = Rs.12112.50 from 1-8-1986 to 31-7-1991 totalling to Rs.29958.25 only.� 4. It is this award by the Arbitrator, which became the subject matter of challenge before this Court in the appeal. 5. Heard the arguments, perused the record and considered the rival contentions of the parties, in extenso. 6. Mr. Sakal Bhushan, learned counsel appearing for the appellants, vehemently urged that under the provisions of standing Order 23-A published in Government Gazette dated 7th Assuj, 1990 Svt., Tehsilder being Assistant Collector of the First Class under the Land Revenue Act, is competent to attest a mutation under the Land Revenue Act. That the Arbitrator has ignored Mutation No. 340 dated 6-6-1987, attested by the Tehsildar in respect of Khasra No. 216, without any basis and justification and. thus, wrongly held that the Tehsildar has no jurisdiction to attest the said mutation. 7. It is apt to point out that the petitioners had applied for the correction of the entry to change the nature of the land from unirrigated to irrigated. thus, wrongly held that the Tehsildar has no jurisdiction to attest the said mutation. 7. It is apt to point out that the petitioners had applied for the correction of the entry to change the nature of the land from unirrigated to irrigated. Tehsilder, R.S. Pura, relied upon the verification made by Patwari and Naib-Tehsildar, who submitted a report on the bias of the oral evidence, and attested Mutation No. 340 and directed the revenue record to be corrected since 1970, without making any attempt to look into the record of the Irrigation Department, which collects the revenue from the owners in respect of irrigated land. Tehsildar, Fazal Rehman Javed, examined by the petitioners in support of their contention, unambiguously stated that 16 kanals 3 marlas of land out of Khasra No. 216 was recorded as irrigated land while 5 kanals 17 marlas as irrigated Bagicha in Rabi 1970. Tehsildar. Fazal Rehaman Javed, also stated that the land was record as irrigated and prior to its occupation by the Army. The land had never been recorded as irrigated as per the revenue record. The change of the entry in the record of rights was, therefore, with the purposive intent to give benefit to the petitioners. This is one aspect of the matter. 8. The other aspect is with regard to the competency of the Tehsildar to direct the change of the nature of the land in attesting the mutation to this effect. Section 27 of the Land Revenue Act clearly provides that no such change in the record-of-rights shall be affected without the order of the Government or any officer authorised by the Government in this behalf. This manifestly shows that the Tehsildar was not competent to change the entries which existed in the record-of-rights. Since, admittedly, the respondents were not present at the time of passing the order, it could not be said to be an agreed order. By the change of the entries from unirrigated to irrigated in the record-of-rights, it were the respondents to be at this disadvantageous position, as they have to pay the rent at the enhanced rate. The mutation order made by the Tehsildar does not fall within the purview of S. 27 of the Act. By the change of the entries from unirrigated to irrigated in the record-of-rights, it were the respondents to be at this disadvantageous position, as they have to pay the rent at the enhanced rate. The mutation order made by the Tehsildar does not fall within the purview of S. 27 of the Act. In such an event, the change in the revenue record pertaining to the entries, which existed in the record-of-rights, could only be made by filing a suit under S. 32 of the Land Revenue Act. This having not been done, the act of the Tehsildar in attesting the mutation is without jurisdiction. Apart from this, there is no material/evidence on record to conclude that the land was irrigated at the relevant time of its possession by the Army. The view expressed by the Arbitrator that the land prior to its requisition for Army was unirrigated and that in the absence of any proof that the land was irrigated prior to its requisition, the compensation to be assessed and paid to the petitioners is for unirrigated Hand, cannot be faulted. 9. It was next contended by the appellants counsel that the Arbitrator has not considered the claim of the appellants on the basis of the yield as worked out by Sub-Divisional Agricultural Officer in the certificate issued by him on 1-2-1993. Section 22 of the Act empowers the Government to frame rules to carry out the purpose of the Act. Sub-rule (2)(a) of Rule 9 of the Jammu and Kashmir Requisitioning and Acquisition of Immovable Property Rules, 1969 substituted by SRO-52 issued on 30th August, 1969 and reads as under : That the competent authority shall allow the following rates of rent which the Government considers minimum for different categories of lands in the State: Category of land Jammu Province per kanal Kashmir Province per kanal Class I Irrigated Rs. 138/- Rs. 185/- Class II a. Irrigated Rs. 85/- Rs. 100/- b. unirrigated Rs. 60/- Rs. 90/- Class III i. Unculturable ii. Fruit bearing Rs. 150/- Rs. 214/-" 10. As the Competent Authority under the rule could suitably enhance the compensation from the minimum amount prescribed, the petitioners should have been paid at the rate of Rs. 85/- per kanal for the land described as Warhal Awal. 11. 85/- Rs. 100/- b. unirrigated Rs. 60/- Rs. 90/- Class III i. Unculturable ii. Fruit bearing Rs. 150/- Rs. 214/-" 10. As the Competent Authority under the rule could suitably enhance the compensation from the minimum amount prescribed, the petitioners should have been paid at the rate of Rs. 85/- per kanal for the land described as Warhal Awal. 11. This rule provides a guideline and Competent Authority is authorised to assess and fix the rent in taking note of the minimum rent provided in different categories of land in SRO-52. However, recommendation came to be made by the Divisional Commissioner vide his communication 1-8-1985 for revision of the minimum rate of rent of land under the Act and suggested rates of rent for different classification of soils to be appropriately calculated. On this recommendation, Government issued notification on 31-7-1986 providing minimum rates of rent for Government to consider in different categories of land specified as under : In exercise of the powers conferred by S. 22 of the J & K Requisitioning and Acquisition of Immovable Property Act, 1968, the Government hereby direct that for Para (3-A) of Rule 9 of the Jammu and Kashmir Requisitioning and Acquisition of Immovable Property Rules the following shall be substituted; namely: - 3-A. In determining the rent of Agricultural land under clause (a), sub-sec. (9) of S. 3 of the Act the competent rates rent which the Govt. consider minimum for different categories of lands in the State: Category of land Jammu Divn. per kanal per annum Kashmir Divn. per kanal per annum Class I Irrigated Rs. 207/- Rs. 285/- Class II a. Irrigated Rs. 200/- Rs. 280/- b. un-irrigated Rs. 150/- Rs. 200/- Class III i. Uncultivable Rs. 80/- Rs. 80/- ii. Fruit bearing orchards Rs. 225/- Rs. 400/-" 12. The Arbitrator found the petitioners entitled to the claim of compensation as per their category of land at Rs. 150/- per kanal per annum, i.e., unirrigated land. The Arbitrator found no evidence on record to enhance the compensation from Rs. 150/- per kanal upwards and held the petitioners entitled to compensation at Rs. 150/- per kanal. As the Agricultural Officer, who issued the certificate has not been examined, this certificate was also held inadmissible. 13. The Arbitrator did not find any cogent, plausible and permissible evidence so as to justify the enhancement of the compensation from Rs. 150/- per kanal upwards and held the petitioners entitled to compensation at Rs. 150/- per kanal. As the Agricultural Officer, who issued the certificate has not been examined, this certificate was also held inadmissible. 13. The Arbitrator did not find any cogent, plausible and permissible evidence so as to justify the enhancement of the compensation from Rs. 150/- upwards per kanal as per notification SRO-493 dated 31st July, 1986. The petitioners/ appellants therefore, were rightly held entitled to compensation of Rs. 85/- per kanal in terms of SRO from 3-1-1973 to 31-7-1986 for requisitioning the land for Army measuring 16 kanals 3 marlas as per their share and from 1-8-1986 to 31-7-1991 at the rate of Rs. 150/-per kanal and further allowed enhancement of 10% after every five years up to maximum of Rs. 250/- The appellant™s counsel could not succeed to carry me through any material to justify the enhancement of compensation for different periods at different rates as given by the Arbitrator in the impugned award. 14. I do not find any infirmity, factual or legal, in the impugned award propounded by the learned District Judge, which calls for interference in this appeal. 15. For what has been stated and discussed above, in its cumulative, I am of the considered view that there is no merit in this appeal and is accordingly dismissed. There is also no merit found in the Cross Appeal preferred by the respondents, which too, in the facts and circumstances of the case, stands dismissed. There will be no order as to costs under the peculiar circumstances of the case.