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2003 DIGILAW 171 (JK)

Nissar Hussain v. State Of J. &K.

2003-05-28

PERMOD KOHLI

body2003
1. Petitioners claim to be recorded owners of land situated at Muza Barrey Nambal, Srinagar falling under survey numbers 639, 640, 641, 642, 1805/630, 1808/632, 634, 638, 643, 642, 632, 637, 1809/635, 1810/635, 647, 648, 650, 649, 646, 1813/651, 1815/652, 1817/653, 1814/651, 1861/653, 652,1818/653, 633, 631, 1811/645, 1812/645 of khewat No. 200 and Khasra No. 1807/634, 1806/630,1813/651. 2. Land described above became subject matter of acquisition by the State Government and on completion of the acquisition proceedings award dated 29.10.1985 was passed. A sum of Rs. 32,640 was determined as compensation per kanal for the acquired land. Petitioners share in the acquired land is indicated in para No. 3 of the petition. 3. Respondents 4 to 15 were tenants under the petitioners and recorded as such in the Revenue record. Proceedings under Section 4 of the Agrarian Reforms Act were initiated wherein respondents 4 to 15 were shown as prospective owner in respect to the land owned by the petitioners. While considering the question of compensation payable for the land in question acquired by the respondents for public purposes, the Collector apportioned the amount of compensation amongst petitioners and private respondents on the basis of a circular No. REV(LV) 10/80, dated 23.2.1980. This circular which has been issued by the Additional Secretary to Government, Revenue Department deals with the question of apportionment of compensation to be awarded under the Land Acquisition Act amongst various categories of persons. In respect to land subject matter of Agrarian Reforms Act and where proceedings under Section 4 have been completed or pending the circular provides that the entire compensation be paid to the prospective owner and only levy to the ex-owners. Relevant portion of the circular reads as under:- "It has been considered necessary to revise the circular instructions regarding appointment of compensation to be awarded under the J&K Land Acquisition Act SVT/1990 in the light of J&K Agrarian Reforms Act, 1976 issued vide this office endorsement No. Rev(LAJ/15/73, dt. 8/79. Accordingly, the following guidelines are issued in suppression of all previous instructions on the subject, for strict compliance:-- ......................... ......................... 8/79. Accordingly, the following guidelines are issued in suppression of all previous instructions on the subject, for strict compliance:-- ......................... ......................... Where the rights of an owner in land under acquisition have been extinguished and vested in the State under section 4 of the Act of 1976 and declaration under section 6 of the Land Acquisition Act has been issued after Ist May, 1973 and the prospective owner of the said land has not acquired ownership rights until the date of such declaration the appointment of compensation of such land shall be made in the manner indicated below, keeping in view the conditions laid down in paras 5 and 6. (i) Where the rent recoverable from a prospective owner is equivalent to the village, rate (Nadi Hasbi Partah-Deh) with or without Malikana, the ex-owner will be paid the amount equivalent to twenty times of such land revenue, the remaining amount of compensation being paid to the prospective owner after deducting 10% as administration charges, to be assessed on the amount payable to ex-owner. This amount will be credited to the Govt. Exchequer under the appropriate head of account. (ii) Where the respective owner was an occupancy tenant in Kharif, 1971 paying rent other than the rent mentioned in sub-para (i) above the ex-owner be paid the amount with the provisions of part "A" of Schedule III of the Act 1976. The remaining amount of compensation will be paid to the prospective owner after deducting 10% as administration charge to be assessed on the amount payable to the ex-owner. This amount will be credited to the Govt. Exchequer under the appropriate head of account. (iii) Where are ex-owner has not exercised the option of resumption of land or where the ex-owner is not found. (iv) Eligible to resume the land, the procedure laid down in sub-para (ii) above will apply in this case also. ...................... ...................... Where the land involved in acquisition is held by a tiller in his personal cultivation in excess of the ceiling area and the same has not been retained by him within the prescribed ceiling limit. The rights of such persons in said land shall be extinguishes and in such cases the compensation be apportioned as under :- (a) To the ex-owner: Equivalent to the amount of levy as per Part "A" of Schedule III of the Act, 1976. The rights of such persons in said land shall be extinguishes and in such cases the compensation be apportioned as under :- (a) To the ex-owner: Equivalent to the amount of levy as per Part "A" of Schedule III of the Act, 1976. (b) To the tiller: the difference between the assumed value for such land according to the table given in clause (a) of sub-para I of para 2 of Part "A" of Schedule III of the Act of 1976 and the amount payable therefore to ex-owner as mentioned in sub-clause (a) above. However, an amount equivalent to 10% as administration charges to be assessed on the amount payable to the ex-owner be deducted from the amount due to the tiller. This amount will be credited to the Govt. Exchequer under the appropriate head of account. (c) To the sate: The difference between the total compensation under the Land Acquisition Act and the amount payable to ex-owner and tiller as mentioned in sub-clauses (a) and (b) above." 4. On being served notice of these petitions respondents did not choose to appear and accordingly they were proceeded ex parte and the right to file reply came to be closed. Case was directed to be listed for final hearing vide interim order dated 20.2.2003, it is under these circumstances, these petitions have been taken up in absence of the respondents. 5. On the basis of the aforesaid circular, petitioners have been denied the compensation for the land belonging to them and acquired by the State. Mr. H.I. Hussain, learned counsel appearing for the petitioner has assailed the Circular No. Rev(LB) 10/80, dated 23.2.1980 as also the award to the extent it directs the payment of compensation to private respondents and seeks a direction for payment of entire compensation to the petitioners being the owners of the land. It is urged by the learned counsel that under the provisions of Land Acquisition Act, it is only the person who owns land is entitled to compensation, a prospective owner has absolutely no right to any compensation under law unless ownership is conferred upon him on conclusion of proceedings under Section 8 of Agrarian Reforms Act. It is urged by the learned counsel that under the provisions of Land Acquisition Act, it is only the person who owns land is entitled to compensation, a prospective owner has absolutely no right to any compensation under law unless ownership is conferred upon him on conclusion of proceedings under Section 8 of Agrarian Reforms Act. Learned counsel relies upon Section 8(4) of the Agrarian Reforms Act, 1976 and claims that only the petitioners who are the original owners are entitled to compensation for the acquired land as according to him ownership right had not been conferred upon private respondents when declaration for acquisition was issued by the Government. Sub-section (4) of Section (8) of J&K Agrarian Reforms Act, 1976 reads as under:-- "Where such land as is mentioned in sub-section (1) has been or is declare for acquisition by the Government under any law for the time being in force and the prospective owner thereof has not acquired ownership rights until the date of such declaration, vesting of ownership rights in such land in such person shall not be effective and the instalments of levy, if any, paid shall be refunded to such person in lump sum with interest at five per centum per annum." 6. A perusal of the aforesaid provision of the Agrarian Reforms Act make it abundantly clear that where the land subject matter of Agrarian Reforms Act is acquired and the land is held by tiller on the crucial date i.e, Kharief 1971, but at the time of declaration of acquisition right of ownership has not been vested in the prospective owner, it is only the original owner recorded as such who is entitled to compensation and not the tiller/prospective owner. Section 8(4) further makes it clear that even if levy has been deposited by the prospective owner after proceedings under Section 4 are concluded, the same shall be refunded to him. Clear implication of this provision is that it is only the original owner who shall be considered to be the interested person and entitled to compensation for the land acquired. 7. As regard the Circular No. Rev.(LB) 10/80, dated 23.2.1980 is concerned, it has not been issued in exercise of any statutory powers nor does it emanate from any such source. This circular appears to be only in the nature of executive/administrative instructions issued by the Revenue Department of the State. 7. As regard the Circular No. Rev.(LB) 10/80, dated 23.2.1980 is concerned, it has not been issued in exercise of any statutory powers nor does it emanate from any such source. This circular appears to be only in the nature of executive/administrative instructions issued by the Revenue Department of the State. It does not over-ride the statutory provisions of Section 8(4) of Agrarian Reforms Act. Since the circular contravenes the provisions of Agrarian Reforms Act, it cannot be enforced to supplant the statutory provision. Therefore, petitioner cannot be denied compensation on the basis of aforesaid circular which is in operative to the extent it contravenes Section (4) of Agrarian Reforms Act. It is accordingly directed that petitioners being the original owners alone shall have the right to receive compensation for the land acquired and if compensation assessed for the land owned by the petitioners and held by the private respondents as tillers has been paid to private respondents, the State Government shall be at liberty to recover the same. In any case, petitioners are entitled to compensation as determined by the Collector. If the petitioners have any grievance as regards the quantum of compensation or its further apportionment amongst themselves, they are at liberty to approach the Collector for seeking a reference in terms of Sections 18 and 31 of the Land Acquisition Act. 8. In view of the above, these petitions are allowed and it is directed that respondents shall pay compensation for the land belonging to the petitioners and acquired within a period of three months from the date copy of this judgment is served upon Collector. In the event petitioners apply for reference, the Collector shall be under obligation to make a reference in accordance with the mandate of Sections 18 and 31 notwithstanding the period of limitation as prescribed under Land Acquisition Act.