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2006 DIGILAW 5 (JK)

Balwant Singh v. State Of J. &K.

2006-02-08

Y.P.NARGOTRA

body2006
1. This Civil Ist Appeal is directed against the judgment and decree dated 20.5.1998 passed by the learned District Judge Jammu on a reference made by the Collector Land Acquisition U/S 31 of the Land Acquisition Act, for resolving the dispute between the parties over apportionment of compensation awarded. FACTUAL BACKGROUND: 2. Land measuring 101 kanal 13 marla comprised in khasra Nos. 253,254,255,256,257,258,259,260,254-min and 257 situate in village Deeli,Tehsil Jammu was acquired for construction of Sampark Project by the Collector Land Acquisition Jammu. In this regard a notification U/S 4 of the Land Acquisition Act (hereafter referred to as the Act) came to be issued vide No.RD/81 of 1984 dated 14.3.1984 and the notification U/S 6 was issued on 25.4.1984. The interested persons laid their claims and the Collector after considering the claims, made his award fixing the rate of compensation at Rs.40000/- per kanal, including 15% solatium thereon. The Collector found Auqaf Committee Jammu entitled to 20% of the compensation whereas the persons, including the appellants, who were in possession of the land, entitled to 80% of compensation. The appellants, as well as Administrator Auqaf Jammu disputed the entitlement of each other to the compensation before the Collector. Each of them claimed right to receive payment of compensation to the exclusion of the other and therefore sought a reference of the dispute to the District Judge. Hence the Collector made the reference to the District Judge U/S 31 of the Act. On the basis of the respective claims made by the respective parties learned District Judge framed the following issues for determination:- 1- Whether the Auqaf Committee Jammu is the owner of the land in question OPR1; 2- If issue No.1 is proved in affirmative whether the Auqaf committee Jammu is entitled to compensation and to what extent ?OPR1; 3- Whether Bulla and others have been in possession of the land in question as allottees?OPP 4- If issue No.1 is proved in negative and issue No.3 is [proved in the affirmative whether the allottees Bulla and others have been the owners of the land in question and thus they are untitled to full amount of compensation?OP parties 5- If issue No.1&3 are proved in affirmative to what extent are the parties entitled to compensation? OP parties. 6- Relief. 3. Both the parties led their respective evidence for and against the proof of issues. OP parties. 6- Relief. 3. Both the parties led their respective evidence for and against the proof of issues. After appreciating the evidence learned District Judge found Auqaf Committee Jammu entitled to receive whole of the compensation whereas appellants herein were held not to be entitled to any compensation as their possession was found to be unauthorized. 4. Admittedly the suit land formed part of total land measuring 376 kanal 2 marla attached to Khankah Peer Kanju Sahib by way of grant given by Maharaja Bahadur and as per record of rights in the year 1979-80-Bk said Khankah was recorded as occupancy tenant. Vide order dated Ist Sawan 1982-Bk. the land was exempted from payment of land revenue. The land was under the control and management of Mohtimim Khankah namely Mohd Bakhash who died before 1947 AD. Nazir Ahmed S/O Mohd Bakhash came to be appointed as Mohtimim in place of his father vide mutation No.231 dated 19.4.1962 recorded by Tehsildar Settlement. Nazir Ahmed too died without becoming evacuee, however, Assistant Custodian Jammu vide his No.713/AC dated 4.5.1970 notified the land of Khankah as evacuee property. It appears that some legal heirs of said Nazir Ahmed disputed the declaration of the suit land as evacuee property before the Custodian whereupon Custodian Evacuee Property Jammu vide his order dated 16.10.1971 de-notified the property and thus the land reverted back to Khankah. It also requires to be noticed that initially in the revenue record Khankah of Peer Kanju Sahib was shown to be occupancy tenant and State as owner of the land, however according to last record of rights prepared in kharif 1999 and Rabi 2000 Bk said Khankah through Mohd Bakhash (Mohtimim) came to be reflected in column of owners. How the occupancy tenant became owner has not been indicated in the said janabanmdi nor any order of the Government has been made available on record of the case by which ownership rights were conferred upon the Khankah. Be it so the entry reflecting Khankah as owner of the property does not appear to have been questioned before any forum either by the State or any other interested person. The State has thus accepted the ownership of the Khankah over the said land which was given in grant to it. Be it so the entry reflecting Khankah as owner of the property does not appear to have been questioned before any forum either by the State or any other interested person. The State has thus accepted the ownership of the Khankah over the said land which was given in grant to it. The Khankah is thus owner of the land measuring 376 kanal 2 Marla out of which land measuring 101 kanal 13 marla has come to be acquired. 5. It also appears from the evidence that in the year 1980 J&K Wakaf Act 1978 was enforced. The land belonging to Khankah was declared to be Wakaf property in terms of Sec.4&5 of the Act by SRO 325 dated 1.12.1980. The land owned by Khankah has thus come to be vested in Auqaf Jammu. STATUS OF THE APPELLANTS: 6. They have staked their claim to compensation in respect of land comprised in khasra Nos.258 259,260-min and 257 only. Said land was admittedly in possession of their predecessors in interest before its acquisition. The appellants claim that their predecessors were refugees of Tehsil Bhimber (POK) and after migrating from there they settled on the land in dispute. As per khasra girdawari 2010-Bk they have been shown to be cultivating the land as non-occupancy refugees. This position as per PW Mukesh Chander Patwari continued upto Rabi 1958 and in kharif 1958 their cultivation was recorded in girdwari as "Gair Mourisi Nakdi Hasb Parta Deh Bawaja Tasawar allottees". It is also admitted position that as per entries in khara girdwari in the year 1971 & 1973 appellant Balwant Singh and predecessors of other appellants have been reflected to be in cultivating possession of the land as non-occupancy tenants by way of deemed allotment and the same position continued till the land was acquired. CASE PROJECTED: 7. The case of Administrator Auqaf before the learned District Judge was that the persons in possession of the land were in occupation unauthorisedly therefore were not entitled to any compensation and as the land was owned by Khankah which had vested in Auqaf in terms of SRO 325 dated 1.12.1980 Auqaf was entitled to whole of the compensation. The case of the appellants however was that their predecessors were refugees/displaced persons after migration from POK, they had settled on the land in issue which was State land and therefore in terms of Govt. The case of the appellants however was that their predecessors were refugees/displaced persons after migration from POK, they had settled on the land in issue which was State land and therefore in terms of Govt. order 578-C of 1954 they had acquired the status of allottees and by virtue of Govt. order No.254 of 1965 they had become owners and therefore entitled to whole of the compensation. 8. As already said Collector Land Acquisition Act found the appellants entitled to 80% of the compensation assessed on the assumption that they were displaced persons in occupation of evacuee/State land and as such U/S 3 of the Agrarian Reforms Act were to be deemed to be occupancy tenants. 9. I have heard the learned counsel for the parties and perused the record. 10. The dispute pertains to apportionment of compensation between the parties. The appointment in the first place depends upon what rights and interests the contending parties possess and secondly upon the method in which those rights and interests are to be valued. For determining the rights and interests of the contending parties it is to be kept in mind that party prima facie entitled to compensation is the owner/proprietor of the property acquired and if any other party claims compensation against him then he has to plead and prove such right. Therefore, firstly it is to be seen as to what is the status of each of the contesting parties qua the land acquired. 10. As already said the land acquired is part of the land given in grant to Khankah by Maharaj Bahadur. As per the initial record of rights the Khankah was recorded in the record of rights as occupancy tenant over the land owned by the State. However, later on by the entries made in the record of rights for kharif 1999 Bk and Rabi 2000 Bk the Khankah came to be recorded as owner. Since the State or any other interested person has not questioned the title of Khankah over the land till date, i.e. for a period of more than 60 years, therefore, Khankah is to be deemed to have become the owner of the land. Since the State or any other interested person has not questioned the title of Khankah over the land till date, i.e. for a period of more than 60 years, therefore, Khankah is to be deemed to have become the owner of the land. The rights enjoyed by the Khankah over the property have come to be declared as Wakaf property by virtue of SRO 325 dated 1.12.1980 in terms of the provisions of J&K Wakfs Act 1978 and the Administrator Auqaf is to be deemed representative of the owner. 11. The predecessors of appellants before kharif 1958 stand recorded as non-occupancy tenants under Khankah and in kharif 1958 they came to be recorded as non-occupancy tenant as deemed allottees. The claim of the appellants that they were allottees of the land has been negatived by the learned District Judge and rightly so because they have not been able to prove any allotment of the land in their favour by any competent person/authority. Their claim that they could be deemed allottees of the land in terms of Govt. order No.578-C of 1954 being displaced persons is also not tenable as the land in their occupation was neither State land nor evacuee land which could be allotted to them under the said Government order. Their cultivating possession over the land in dispute till the date of acquisition for the last more than 50 years is not disputed. The revenue record reflects their possession also as non-occupancy tenants since 2010 Bk. Can their possession be said to be unauthorized, as has been held by the learned District Judge? 12. There is no evidence to show as to who inducted them into tenancy over the land but the fact remains that they were reflected in the revenue record as non-occupancy tenants and such entries date back to 2010-Bk and continue till the land was acquired in 1984, Neither any Mohtimem of Khanka nor any Auqaf committee has ever challenged the correctness of any such entry. Their cultivating possession over the land has also not been disputed. The existence of entries in revenue record showing the predecessors of the appellants in cultivating possession over the land in question as non-occupancy tenants, coupled with their undisputed possession raises a strong presumption of tenancy in their favour under Khankah. The respondent,Administrator Auqaf has not led any evidence by which such presumption can be rebutted. The existence of entries in revenue record showing the predecessors of the appellants in cultivating possession over the land in question as non-occupancy tenants, coupled with their undisputed possession raises a strong presumption of tenancy in their favour under Khankah. The respondent,Administrator Auqaf has not led any evidence by which such presumption can be rebutted. Since the respondent or any manager of Khankah did not ever challenge the correctness of the said revenue entries recorded in favour of the predecessors of the appellants as such their acquisance in favour of tenancy can safely be inferred and as such their possession over the land cannot be said to be unauthorized. 13. Therefore it is held that predecessors of the appellants were non-occupancy tenants in the land in question since 2010 Bk. and continued to be so till the land came to be acquired. In the year 1965 Jammu and Kashmir Tenancy (Amendment Act) 1965 came into operation by which section 15-A was incorporated in Tenancy Act. Section 15-A provides that all tenants other than occupancy tenants and such fixed term tenants as hold maliari or vegetable growing land shall be deemed to be `protected tenants and recorded as such in respect of such land as is held by them in their cultivating occupation at the time of commencement of Jammu and Kashmir Tenancy (Amendment) Act 1965. Therefore, by operation of the legal fiction envisaged by section 15-A the predecessors of the appellants who were in cultivating possession of the land became `protected tenants in 1965. Therefore, in terms of rule 45 framed under Council Order No.939-C of 1936 dated 8.12.1936,they became entitled to compensation in 80% share while being the owner Khankah through Administrator Auqaf would be entitled to receive 20% of the compensation. 14. In this view of the position the findings of the learned District Judge on issue Nos. 1 to 6, so far these declare the predecessors of appellants in unauthorized occupation of the suit land and as such not entitled to any compensation are set aside and shall stand altered as aforesaid, and the judgment impugned to that extent shall stand modified. 15. In the aforesaid premises the appeal of the appellant is partly allowed and reference shall stand accordingly answered.