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2010 DIGILAW 464 (JK)

Mian Ab. Hakeem v. Collector, Land Acquisition

2010-08-20

MOHAMMAD YAQOOB MIR

body2010
1. Land measuring 12 Kanals and 13 Marlas covered by survey nos.360/73, 364/76, 361/74, 362/75 and 363/75 owned by appellants situated at village Nunwan, Pahalgam has been acquired by the Government in the year 1983 for the development of Pahalgam Health Resort. The compensation at the rate of Rs.5000/- per kanal has been awarded by the Collector, Anantnag. The petitioners have received the amount of compensation at the rate of Rs.5000/- per kanal under protest so have moved the application presumably under Section 18 of Land Acquisition Act for referring the matter to the Civil Court for determination of the rate. In the application, it has been averred that no notice has been issued or served upon them. It is also mentioned therein that at village Nunwan and Laripora, Pahalgam, rate of the land per kanal is fixed as more than Rs.40,000/-. 2. The Collector on the basis of application has referred the matter u/s 18 of Land Acquisition Act to the District Court for, determination of the market rate. 3. On the basis of respective pleadings, the leaned District Judge has framed the following two issues: - 1. Whether the compensation determined by the non-applicant is inadequate, if so, what should be the fair compensation for the land acquired? OPP. 2. Relief. 4. While recording finding on issue no.1, learned reference court has fixed the rate of compensation at the rate of Rs.40,000/- per kanal as was claimed by the petitioner. Further has allowed jabirana 15% on the amount determined thereof and interest at the rate of 10% per annum from the date the amount falls due to them till final payment. It is also recorded that the amount already received under protest shall be adjusted towards the final payment. 5. Appellant dissatisfied with the rate as awarded has filed the instant appeal. 6. It is contented by the learned counsel for the appellants that big chunk of land measuring 226 kanals and 6 marlas situated at village Nunwan and village Laripora, Pahalgam was acquired by the Government for development of Pahalgam in the year 1980. The collector had assessed the price of the land in the year 1980 at the rate of Rs.5000/- per kanal together with jabirana. The final award has been issued on 15-05-1982. 7. The collector had assessed the price of the land in the year 1980 at the rate of Rs.5000/- per kanal together with jabirana. The final award has been issued on 15-05-1982. 7. The appellant with the object of getting the fair compensation fixed, led evidence and in addition produced certified copies of two judgments arising out of reference made to the District Court against the award in question. One of the judgment passed in reference titled Mohammad Yaqoob Khan v. Collector and other judgment passed in reference titled Ali Mohammad Langer and ors. v. Collector. 8. Government Order no.482-UD of 1981 dated 31-07-1981 has been produced whereunder sanction has been accorded to the sale of the Hotel Site no.2 in Pahalgam measuring 15 kanals of land situated on the western side of the Golf Course over looking Aru Nallah in favour of the M/s A.K. Enterprises, Rajbagh, Srinagar for Rs.51.45 lacs. In the public auction, the Government has sold the said land at the rate of Rs.3.40 lacs in the year 1983. On the said basis, in the case of Mohammad Yaqoob Khan v. Collector, the rate per kanal has been determined as 2.65 lacs. On the same analogy, the rate of the land which belonged to Ali Mohammad Langer was fixed at Rs. 75,000/- per kanal because said Ali Mohammad Langer had claimed the price at the rate of Rs.75,000/- per kanal. 10. Learned 2nd Additional District Judge, who has decided the reference while noticing the above referred circumstances and also taking note of the depositions of the witnesses as produced has opined that the amount of compensation granted to the petitioner was inadequate. The appellant having claimed compensation at the rate of Rs.40,000/- per kanal is a genuine rate. 11. The learned counsel for the appellant would contend that the learned reference court has restricted the claim of the appellant to Rs.40,000/- per kanal as having been claimed by him. It also appears that learned reference court while keeping in mind Section 25 of the Land Acquisition Act has fixed the rate at the claimed amount when Section 25 would operate only when rate is offered in response to the notice u/s 9 of the Act. In the application, appellant has clearly mentioned that no notice was served upon him. 12. In the application, appellant has clearly mentioned that no notice was served upon him. 12. While considering the submission of the learned counsel, it is to be made clear that the reference court without making reference to Section 25 has opined that keeping in view the rate as has been awarded in the case of Mohammad Yaqoob Khan and Ali Mohammad Langer, the claimed compensation at the rate of Rs.40,000/- per kanal appears to be genuine. The essence of the reference is to determine the fair amount of compensation payable. There are three instances, one that the Government has auctioned the land at the rate of Rs.3.40 lacs per kanal, second, that the Additional District Judge has granted compensation at the rate of Rs.2.65 lacs per kanal in favour of Mohammad Yaqoob Khan and last one, District Judge, Anantnag has awarded compensation at the rate of Rs.75,000/- per kanal in the case of Ali Mohammad Langer v. Collector. 13. The fair amount of compensation has to be determined while keeping in view the host of circumstances which include the evidence led in the particular case. It was for the appellant to claim the rate of compensation while moving the application, which he has done by claiming Rs.40,000/-per kanal. Though in the application, rate per kanal has been written and fixed as more than Rs.40,000/- which means of his own being the owner of the land has consciously claimed Rs.40,000/- per kanal. Specific mentions of more than Rs.40,000/- means appellant was conscious that Rs.40,000/-was genuine rate as against Rs.5000/- per kanal fixed by the Collector. Section 25 of the Act reads as under: - Rule as to amount of compensation (1) when the applicant has made a claim to compensation, pursuant to any notice given under section 9, the amount awarded to him by the Court, shall not exceed the amount so claimed or be less than the mount warded by the Collector under section 11. (2) When the applicant has refused t make such claim or has omitted without sufficient reason (to be allowed by the Judge) to make such claim the amount awarded by the Court shall in no case exceed the amount awarded by the Collector. (2) When the applicant has refused t make such claim or has omitted without sufficient reason (to be allowed by the Judge) to make such claim the amount awarded by the Court shall in no case exceed the amount awarded by the Collector. (3) When the applicant has omitted for sufficient reason (to be allowed by the Judge) to make such claim, the amount awarded to him by the Court shall not be less than, and may exceed, the amount awarded by the Collector. 14. The underlying object of the section is that the compensation shall neither be lower than what is fixed by the Collector nor more than what is claimed by the claimant. The words employed suggest avoidance if exaggeration. The contention of the learned counsel is that the appellant had not offered the rate of Rs.40,000/- per kanal in response to the notice u/s 9 of the Act. The phrasology used is that the rate shall not be allowed more than what is claimed by the claimant. The words in response to the notice issued under Section 9 of the act, has the object i.e. as to what rate claimant would claim so that compensation may not exceed limit same helps avoidance of manipulation. When the appellant moved the application for referring the matter to the District Court has quoted the rate, same has been done in response to the acquisition proceedings. The underlying object is simply to see as to what could be the genuine rate awardable by the Collector. 15. The appellant on his own showing cannot claim more than what he has claimed in the application, as according to him, the land acquired, instances of which are quoted, have been acquired at the rate of Rs.3.45/-lacs in auction. In the case of Mohammad Yaqoob Khan, Rs.2.65/- lacs per kanal and in the case of Ali Mohammad Langer at the rate of Rs.75,000/- per kanal, similarly, Rs.40,000/- per kanal as awarded by the reference court is on the basis of claim made by the appellant himself as against the rate of Rs.5000/- awarded by the Collector. The Court has accepted the claim of the appellant to fix the rate of the land as Rs.40,000/- per kanal. The Court has accepted the claim of the appellant to fix the rate of the land as Rs.40,000/- per kanal. The appellant himself has not justified even in the appeal as to what rate per kanal should have been fixed, even he cannot claim one out of three referred rates i.e. 3.45 lacs, 2.65 lacs and 75,000/- which in turn means that appellant had referred three instances where three different prices have been fixed dependent on peculiar circumstances of each instance, appellant has himself offered the rate of Rs.40,000/- which means in his estimation Rs.40,000/- per kanal was genuine rate as against Rs.5000/- fixed by the collector. The claim of the appellant has been accepted. The learned reference court has appreciated the matter rightly so has awarded the compensation fairly, no interference is warranted, appeal as such fails, so is dismissed. Decree sheet be drawn up accordingly. 16. Copy of the judgment and of the decree along with subordinate record be transmitted to the reference court forthwith.