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2013 DIGILAW 383 (JK)

O. P. Kotwal v. Union Of India

2013-07-09

ALI MOHAMMAD MAGREY

body2013
1. The petitioner has filed this petition seeking issuance of Mandamus for commanding respondent no.2, Defence Estate Officer, Northern Command C/O 56 APO, to deposit the compensation amount of Rs. 6,94,172.00 alongwith interest thereon with respondent no.4, Collector, Land Acquisition (SDM) Bhaderwah, and for directing respondent no.4 to release the said amount in favour of the petitioner. 2. The case, as set up by the petitioner, is that respondent no.4 acquired the petitioner's proprietary land comprised in Khasra nos. 359, 360, 330, 324 and 294 situated in village Bhalra for establishment of Army Cantonment. It is averted in paragraph 3 of the petition that, while assessing compensation for the aforesaid land, compensation for standing non-fruit trees (Deodar) was not included in the final award at the time of its preparation. It is further submitted that the petitioner made an application dated 11.12.1995 to respondent no.4 to assess the compensation for the non-forest trees (Deodar). The said application was forwarded by respondent no.4 in original to DFO, Bhaderwah who, in turn, sent it to Range Officer. The Range Officer alongwith Patwari conducted the spot inspection. Ultimately, the DFO, Bhaderwah, vide his letter dated 26.05.1996 submitted the assessment of non-fruit bearing trees, numbering 51 and calculated the amount of compensation thereof at Rs. 6,94,172.00. The grievance of the petitioner is that he has been approaching respondent no.4 for the release of payment of compensation as assessed by the DFO, but respondent no.4 has expressed his inability as the amount has not been deposited by respondent no.2 with him despite a communication dated 27.08.2003 addressed by him to respondent no.2 in that behalf. 3. Respondents 1 and 2 have filed their pre-admission objections. As prayed, the objections are treated as reply on their behalf. However, respondents 3 and 4 have chosen not to contest the petition, inasmuch as they have neither filed objections, nor reply. 4. With consent of the learned counsel, the matter was taken up for final consideration. 5. Respondents 1 and 2 in their objections have raised a preliminary objection to the maintainability of this petition, for, according to them the petitioner has not availed the remedy available to him under Section 18 of the Jammu and Kashmir Land Acquisition Act, 1990 Svt. In fact, the petitioner has accepted the award passed by the Collector and received the amount without any demur. In fact, the petitioner has accepted the award passed by the Collector and received the amount without any demur. On facts, it is stated in the reply that, as per the records, a chunk of land measuring 892.243 Acres of land, comprised in numerous Khasra numbers, was acquired. The land stated to be comprised in Khasra no.324 has not been acquired, and so far as the land comprised in Khasra nos. 359, 360, 330 and 294 is concerned, compensation for the land as also the trees standing thereon -- whether fruit-bearing or non-fruit bearing trees, was duly assessed and paid to the petitioner and others. Respondents 1 and 2 have placed an attested photocopy of the Final Award alongwith its annexures, passed by respondent no.4, on record of this petition. 6. I have heard learned counsel for the parties, perused the record and considered the matter. 7. It is the positive case of the petitioner that his proprietary land comprised in Khasra nos. 359, 360, 330, 324 and 294 situated at village Bhalra was acquired by respondent no.4. It is also his specific averment that compensation for the standing non-fruit bearing trees (Deodar) has not been included in the final award at the time of its preparation. 8. The petitioner has not made any averment, muchless a specific one, as to how many non-fruit bearing trees (Deodar) were standing on his land. Reliance in this connection is placed by the petitioner on the application dated 11.12.1995 (Annexure `A' to the petition) made by him to respondent no.4, the process initiated thereon and the reports of the Divisional Forest Officer contained in Annexure `B' to the petition. It would be appropriate to quote hereunder the application so made by the petitioner to respondent no.4: "It is to state that there are Deodar trees in Khasra No. 359, 360, 324, 294 and other Khasra Nos situated at Village Bhalra and the same have not been assessed so far for the compensation. It is as such requested to kindly pass order to the competent forest authority for doing the needful please." 9. It is thus seen that even in his aforesaid application, the petitioner had not mentioned the number of such trees as, according to him, were standing on the land in question. It is as such requested to kindly pass order to the competent forest authority for doing the needful please." 9. It is thus seen that even in his aforesaid application, the petitioner had not mentioned the number of such trees as, according to him, were standing on the land in question. The report made by the DFO to respondent no.4 vide his communication dated 26.05.1996, and relied upon the petitioner, reads as under: "It is submitted that as per your orders, the assessment of non-fruit bearing trees has been got done by the field staff of Neru Range and Patwari of the concerned Halqa and is as under as per the revised rates of 1992: Name of the owner Total No. of trees Amount calculated OP Kotwal R/O Village Bhalara 51 trees 6,94,172.00 Hence for your inf. and n/action please." The statement showing the assessment of the trees is contained in annexure to the aforesaid report. It depicts the Khasra no.; kind, class, quality and number of trees; rate and total cost of each tree. Perusal thereof gives the following picture: Khasra no.359: 25 Deodar trees and 3 Querues trees Khasra no.360: 02 Deodar trees Khasra no.330 01 Deodar tree Khasra no.324: 13 Deodar trees and 2 Cuercus trees Khasra no.244: 05 Deodar trees. 10. It may be observed here that the final award has been passed on 08.06.1996, that is, after the aforesaid report was made by the Divisional Forest Officer. As mentioned earlier, an attested copy of the award alongwith its three annexures has been placed along with their objections by respondents 1 and 2. Examination of the award reveals that it included the compensation of non-fruit bearing trees assessed by the Forest Department at Rs. 1,29,170.36. 11. The details of the land handed over by respondent no.4 and taken over by respondents 1 and 2 situated at village Bhalra, Tehsil Bhaderwah, District Doda are comprised in annexure "A" to the Award. Khasra no.324 does not figure in the said list, meaning thereby that land comprised in the said Khasra no. has not been acquired by respondent no.4, or, in any case, handed over to the Army. In fact, that is the positive case of respondents 1 and 2. Apparently, this falsifies the claim of the petitioner as also the report made by the DFO referred to hereinabove. 12. has not been acquired by respondent no.4, or, in any case, handed over to the Army. In fact, that is the positive case of respondents 1 and 2. Apparently, this falsifies the claim of the petitioner as also the report made by the DFO referred to hereinabove. 12. Further, annexure "C" appended to the Award contains details of non-fruit bearing trees standing on the respective Khasra numbers of the acquired land situated at village Bhalra. As mentioned above, land comprised in Khasra no.324 does not figure in the list of the acquired land. As to the remaining Khasra nos. stated by the petitioner in his petition to be his proprietary land, the annexure "C" mentions as under: I) Khasra no.330: 7 Deodar trees; Owner of the land is shown to be One Ram Lal; II) Khasra no.359: 5 Deodar trees; Shadi Lal and Om Prakash S/o Jaimat Lal are shown to be owners. Khasra nos. 360 and 244 are not mentioned in the said annexure, meaning thereby that no non-fruit bearing trees were found standing on these two Khasra nos. 13. Thus, there are two contradictory set of facts brought on record, both from the functionaries of the State. Whereas, the DFO in his report has mentioned the total number of standing trees as 51 with the break up thereof quoted above, the Award has mentioned the total number of such trees only as 12. This is one aspect of the matter. 14. The petitioner also claims that his land comprised in Khasra no.324 has also been taken over, though he has not made any prayer in relation thereto in the petition. But he has brought this fact to the notice of respondent no.4 vide his application dated 05.05.2003 annexed to and forming page 8 of the petition wherein he had brought to the notice of Sub-Divisional Magistrate, Bhaderwah that "it is found that the land for assessment of compensation at some places has not been taken into account". 15. It is further the positive case of the petitioner that non-fruit bearing trees standing on his land were not assessed for compensation, though he has not given the total number thereof anywhere, either in his application dated 11.12.1995, nor in the petition. Annexure "C" appended to the award shows that only 12 non-fruit bearing trees found standing on the two Khasra nos. Annexure "C" appended to the award shows that only 12 non-fruit bearing trees found standing on the two Khasra nos. 359 and 330 of the petitioner and his brother have been assessed for compensation. The claim of the petitioner on this score again, apparently, is falsified. 16. But the fact remains that respondent no.4 has accepted the report of the DFO, inasmuch as he has referred the matter to respondents 1 and 2 for release of the assessed compensation. It is not a case involving dispute as to the measurement of land, the amount of compensation or the persons to whom it is payable or apportionment thereof. It is a pure case of taking over the property of a citizen without resort to due course of law. It is the case of the petitioner that his proprietary land comprised in Khasra no.324 has been taken over, but the said Khasra number is not mentioned in the annexure "A" appended to the Award and, therefore, has not been assessed to compensation. As mentioned above, the petitioner has not made any specific prayer in relation thereto in the petition. Yet, this fact read with the report made by the DFO establishes that petitioner has been deprived of his property without recourse to law and he has been pursuing the matter with the concerned functionaries of the State all though, but without any avail. He has been made to go from pillar to post and post to pillar. It must be borne in mind that the Constitutional provision of Article 19(1)(f) is still operative in relation to the State of Jammu and Kashmir. The said Article guarantees the right of a citizen to hold his property, unless taken over by the Government in accordance with the relevant provisions of law. That does not seem to have been done in the instant case, inasmuch as the State functionaries are at variance as to the relevant facts and figures. 17. In view of the contradictory facts and figures those have come on record, it would not be possible for this Court to give a clear cut direction as to the release of any amount of compensation to the petitioner. 17. In view of the contradictory facts and figures those have come on record, it would not be possible for this Court to give a clear cut direction as to the release of any amount of compensation to the petitioner. It would be appropriate to dispose of the writ petition in the following terms: "The petitioner shall make a representation to respondent no.4 giving all relevant details therein together with the extent of his land comprised in each of the Khasra numbers and the number of non-fruit bearing trees standing thereon. Respondent no.4 shall conduct on the spot physical verification of the claims as may be put forth by the petitioner in his representation, either personally or through his subordinate agencies, in collaboration with the concerned Forest Ranger and the Defence Estates Officer. Respondents 1 and 2 shall make it convenient for respondent no.4 to have such physical verification conducted. In the event any of the claims of the petitioner are found to be truthful, the compensation thereof shall be assessed and calculated on the rates as were taken into account while passing the award in question. Respondent no.4 shall take the necessary follow up action with respondent no.2 of release of payments, if any, found due to the petitioner, and handing over and taking of such left out properties of the petitioner -- whether comprised of land or trees. The needful shall be done within three months from the date copies of this order are served on the respondents."