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2018 DIGILAW 267 (JK)

Muzaffar Ahmad Ganaie v. UOI

2018-05-05

SANJEEV KUMAR

body2018
JUDGMENT : 1. The petitioners, claiming to be owners of land measuring 15 kanals & 7 1/2 marls falling under different khasra numbers situated at village Kuchmulla Tehsil Tral, have filed this petition seeking, inter alia, the following reliefs : i. Mandamus, commanding respondent Nos. 1&2 to pay the compensation for the walnut trees which are under the occupation of 42 RR Army from the year 2001 ii. Mandamus, directing respondent Nos. 1 and 2 to pay the compensation of last 13 years for the walnut tree which are being thrashed by the 42 RR Army in village Kuchmulla Tral themselves. iii Mandamus, directing respondent Nos. 3 to 6 to excess the compensation for the walnut trees which are under the occupation of respondent No.2 and are being thrashed by them from year 2001. iv. Mandamus, commanding respondent Nos. 1 and 2 to increase the compensation/rent for the land under the occupation of 42 RR Army from year 2001 as a meager amount of rent/compensation is being paid to them. 2. The case set up by the petitioners in this petition is that their proprietary land, which is under the occupation of respondent No.2 since the year 2001, has approximately 122 walnut trees standing thereon. It is submitted that, for the land which is occupied by respondent No.2, the rental compensation at the rate of 11,000/- per annum is being paid to the petitioners and no compensation on account of walnut trees, which are standing on the land in question, has been paid. The petitioners are also not being allowed to thrash the walnut trees. It is, thus, contended that the Army has been thrashing the walnut trees and are retaining the same to the detriment of the petitioners. The petitioners claimed that they had been pursuing the matter with respondent Nos. 1 and 2 for payment of requisite compensation for the standing walnut trees. However, with the intervention of respondent No.4 i.e., Deputy Commissioner, Pulwama, Tehsildar concerned conducted a verification and found 99 walnut trees on the aforesaid land out of which 23 were found to be non-fruit bearing trees. 3. The grievance projected by the petitioners in this petition, in short, is that respondent Nos. 1 and 2 have occupied their land which has standing walnut trees, but have sanctioned rental compensation only qua the land. The respondents have filed their reply. 4. So far as respondent Nos. 3. The grievance projected by the petitioners in this petition, in short, is that respondent Nos. 1 and 2 have occupied their land which has standing walnut trees, but have sanctioned rental compensation only qua the land. The respondents have filed their reply. 4. So far as respondent Nos. 1 and 2 are concerned, it is claimed that as per the occupation certificate, the total land occupied by the Army is 16 kanals and 8 marlas and the number of standing walnut trees on the aforesaid land was 56 at the time of such occupation. The claim of the petitioner that the land has 122 standing walnut trees has been denied by respondent Nos. 1 and 2. The stand taken by respondent Nos. 1 and 2 is that, for the land which is occupied by them, the rental compensation is being paid to the land owners regularly. Earlier, the rental compensation was assessed by the authorities at the rate of Rs.9,233/- per annum, but the same was revised to 22,796/- per kanal per annum w.e.f. 16.02.2008. Respondent Nos. 3 to 6 have also filed their reply which is also on the same lines. The claim of the petitioners that there are walnut trees standing on the aforesaid land occupied by the Army has not been refuted by the respondents. However, it is stated that the Army authorities have never objected to the thrashing and taking the usufruct of the walnut trees by the land owners. 5. I have considered the submissions made by learned counsel for the parties. 6. Admittedly, the land measuring 16 kanals and 8 marlas belonging to the petitioners is in occupation of the Army since the year 2001. Earlier, the rental compensation for the land was being paid at the rate of 9,233/- per kanal per annum, which was later on, revised to 22,796/- per kanal per annum w.e.f. 16.02.2008. Thereafter, as admitted by the parties, there has been no revision of the rental compensation. 7. So far as the walnut trees are concerned, the State-respondents in their reply have indicated that the total number of walnut trees (fruit bearing) which are existing on the land under occupation of the Army are 76. However, respondent Nos. 1 and 2 in their reply have stated that the number of walnut trees which were there at the time of occupation of the land in question was 56. However, respondent Nos. 1 and 2 in their reply have stated that the number of walnut trees which were there at the time of occupation of the land in question was 56. On the other hand, the petitioners have claimed that there were 122 walnut trees standing at the time of acquisition of their land. There is, thus, dispute with regard to the total number of walnut trees (fruit bearing) existing on the land under the occupation of the Army. 8. So far as the rental compensation for the land under occupation is concerned, the petitioners have not disputed the same, but only submit that the same was last revised in the year 2008 and since then, a decade has gone, the rate of rental compensation has not been revised. However, with regard to the walnut trees (fruit bearing), it is admitted by the parties before this Court that no rental compensation has been paid since the year 2001. Respondent Nos. 1 and 2 have claimed that they never objected to the thrashing of the walnut trees of the petitioners, but there is nothing on record to show that the petitioners were ever permitted to enter the land, thrash the walnut trees and take away the usufruct. 9. In these circumstances, I tend to believe that the petitioners have not been given access to the walnut trees nor have they ever thrashed the walnut trees and taken the usufruct thereof. There is another interesting aspect of the matter which this Court has noticed in the instant case is that the land which is having fruit bearing trees has been taken over by respondent Nos. 1 and 2 as a land simplicitor and the rental compensation has been fixed without following the provisions of the J&K Requisitioning and acquisition of Immovable Property Act, 1968 (hereinafter referred to as the ‘Act of 1968’). 10. May be, the rental compensation was fixed by private negotiations. Since the petitioners never objected to the fixation of the rate till they filed this petition, as such, this Court may not go into the manner in which the rental compensation for the aforesaid land was arrived at by the respondents. But, there is inherent illegality committed by the respondents in working out the rental compensation for the said land. Since the petitioners never objected to the fixation of the rate till they filed this petition, as such, this Court may not go into the manner in which the rental compensation for the aforesaid land was arrived at by the respondents. But, there is inherent illegality committed by the respondents in working out the rental compensation for the said land. As a matter of fact, the Act of 1968 and the rules framed there-under provide the mode and manner in which the compensation for different categories of land is required to be worked out. The rental compensation for fruit bearing orchard in terms of Rule 9 of the Rules 1969 is to be fixed at the rate of Rs.10,000/- per kanal per annum. This rate was revised in the year 2008 when sub-rule 2-A of Rules, 1969 was amended vide SRO 104, dated 11.04.2008. The aforesaid sub-rule has undergone further change w.e.f. 21.02.1917 when the Government issued SRO 66 of 2017. The rate of rental compensation for the fruit bearing orchard has been enhanced to Rs.10,500/- per kanal per annum. 11. Admittedly, no such rental compensation for the land in question, which is nothing but a fruit bearing orchard, has been properly worked out in terms of Act of 1968 and the rules framed there-under. The petitioners have been denied the just compensation by the respondents. The plea of the respondents that they have been paying the rental compensation for the land in question and have permitted the petitioners to thrash and take out the walnut trees standing thereon is not acceptable being not supported by any evidence. 12. Accordingly, this petition is allowed. Respondent No.4 is directed to consider the claim of the petitioners for fair and just rental compensation for the land measuring 16 kanals and 8 marlas (supra) and the fruit bearing trees standing thereon strictly under the provisions of the Act of 1968 and the rules framed there-under. If, upon verification, the land under occupation of the Army is found to be a fruit bearing orchard, the compensation shall be worked out in terms of Sub-rule 2-A of Rules 1969. If, however, the land under occupation of the Army is not found to be a fruit bearing orchard, the rental compensation on account of fruit bearing trees which were standing at the time of acquisition shall be worked out separately. 13. If, however, the land under occupation of the Army is not found to be a fruit bearing orchard, the rental compensation on account of fruit bearing trees which were standing at the time of acquisition shall be worked out separately. 13. Needless to say that respondent No.4 will work out the rental compensation payable to the petitioners as aforesaid w.e.f. the year 2001 or w.e.f. such date the land in question came to be occupied by respondent Nos. 1 and 2. Respondent No.4 shall work out the compensation as aforesaid after giving adequate opportunities of being heard to the parties. On respondent No.4 passing the appropriate orders of rental compensation, respondent Nos. 1 and 2 shall immediately and without further waste of time release the rental compensation in favour of the petitioners. Respondent No.4 shall conclude his enquiry as directed above and work out the compensation payable to the petitioners minus the compensation already received by the petitioners within a period of two months from the date copy of this order is made available to them. Respondent Nos. 1 and 2 shall release the balance amount of compensation as may be directed by respondent No.4 within a period of four weeks thereafter. 14. In the aforesaid terms, the writ petition is disposed of.