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2019 DIGILAW 216 (JK)

Mohd Akbar v. State of J&K

2019-04-10

SANJEEV KUMAR

body2019
JUDGMENT : 1. This Civil First Appeal is directed against the judgment and decree dated 16.07.2012, passed by the learned Additional District Judge, Doda (for brevity ‘the trial Court’) whereby learned trial Court while disposing of the Reference made by the respondent No.1 has held respondents 2 to 5 herein entitled to receive 1/3rd of the deposited amount of compensation and the appellant and respondent No. 6 herein for the remaining amount to be shared by them equally. 2. Land measuring 4 Marlas in khasra No.874 min, 2½ marlas in khasra No.874 min and 5 marlas along with the structures constructed over the said land in Khasra no.1228/876 situated at Pull Doda, was subject matter of reference decided by the trial Court in terms of the impugned decree. 3. With a view to appreciate the controversy in the light of established facts, it would be necessary to first set out the relationship of the parties in the shape of family pedigree (Shajra Nasab) which for facility of reference is drawn here as under:— Khalid Ahmad Kitchloo (deceased) Mohd. Akbar Kitchloo (son) Mohd. Abdullah Riaz Kitchloo (deceased) (son) Bashir Ahmad Kitchloo (son) Amina Riaz Kitchloo (wife) Wajahat Hussain(son) Mubasher Hussain (son) Khalid Hussain (son) 4. That as per the order of Reference passed by the respondent No.1, land measuring 9 marlas gair mumkin kotha/shop falling under khasra No. 874 min, 0 Kanal 4 Marlas gair mumkin shop in khasra no. 876 and 2½ marlas khali area in khasra no.876 came under the acquisition of the respondent No.1 for construction of Baglihar Hydro Electric Project, Chanderkot, Ramban. As per the Field Book, the appellant was shown in possession of the said land whereas in the ownership column, the land was shown as shamlat deh and owned by Shiv Ram son of Ragbir Dass, resident of Dandi, Bhaderwah. The position as per khasra girdawari, however, was shown as 4 marlas gair mumkin kotha in khasra No.874 min, 2 marlas gair mumkin kotha again in khasra No. 874 min, 1 marla gair mumkin Jar in khasra number 989/875 and 5 marlas gair mumkin shop in khasra No. 1238/876 in the name of Mohd Khalil son of Ghulam Ahmed Kichloo, predecessor-in-interest of the contesting parties in this appeal. In the ownership column and the khasra girdawari, the position was the same, it was recorded in the name of Shiv Ram/shamlat deh. In the ownership column and the khasra girdawari, the position was the same, it was recorded in the name of Shiv Ram/shamlat deh. By the operation of the provisions of Agrarian Reforms Act read with Government Circular issued vide LB-(10) of 1980 dated 23.02.1980, the compensation of the land was to escheat to the state. However, 80% compensation of the structures as improvement charges including 15% Jabrana amounting to Rs.12,90,449/- was payable to the interested persons in terms of Govt. Order No. 41-Rev/Laj of 2008 dated 18.02.2008. Before the respondent No.1, objection was raised by predecessor-in-interest of the respondents 2 to 5, namely, Mohd. Abdullah Riaz through his Power of Attorney Holder, namely, Atta Ullah Nehru who claimed that the compensation assessed was required to be distributed equally between the three sons of Mohd Khalil Kichloo. During the pendency of the proceedings before the respondent No.1 Mohd Abdullah Riaz also expired and mutation of inheritance was tested in favour of respondents 2 to 5. Respondents 2 to 5 also pursued their objection through the Power of Attorney, Mr. Atta Ullah Nehra. The appellant, however, maintained that he being in possession of the land and having raised the structures from his own pocket was entitled to the entire amount of compensation to the exclusion of his two other brothers. In view of the aforesaid dispute raised with regard to the entitlement/apportionment of the compensation, the respondent No.1 made reference to the trial Court. The trial Court took cognizance of the reference and after holding the trial came to the conclusion as is indicated in the impugned decree. 5. From the pleadings of the parties, trial Court framed the following issues:— i. Whether land khasra No.874 min measuring 4 marlas, khasra No.874 min measuring 2 ½ marlas, khasra No.1228/876 measuring 5 marlas along with structures constructed over the said land was owned and possessed by late Mohd Khalil Kichloo son of Ghulam Mohd Kichloo R/O Doda? OPR- 3 to 6 ii. If issue No.1 is proved in affirmative, whether the said property devolved upon father of respondents 3 to 6 and respondents 1 and 2 in equal shares by way of inheritance after the death of Mohd Khalil Kichloo? OPR- 3 to 6 iii. OPR- 3 to 6 ii. If issue No.1 is proved in affirmative, whether the said property devolved upon father of respondents 3 to 6 and respondents 1 and 2 in equal shares by way of inheritance after the death of Mohd Khalil Kichloo? OPR- 3 to 6 iii. If issues 1 and 2 are proved in affirmative, whether respondents 3 to 6 are entitled to 1/3rd of compensation assessed by the applicant/Collector for the above described property? OPR-3 to 6 iv. Whether the reference is without jurisdiction as is made by the Collector after his transfer? OPR-1 v. Relief. 6. Issue No.4 was treated as a preliminary issue and was decided in favour of respondents 2 to 5 and against the appellant. The issues Nos.2 and 3 were also decided in favour of the respondents 2 to 5 and against the appellant. It may be noted that the respondent No.2 did not contest the Reference and was proceeded ex parte by the trial Court. 7. The appellant who had staked his claim to the entire compensation to the exclusion of respondents 2 to 6 is aggrieved and challenges the impugned degree primarily on the ground that though the land subject matter of Reference has been shown to be in possession of the father of the appellant, namely, Mohd. Khalil Kichloo during his life time, yet during his life time and thereafter it has all along remained in physical possession of the appellant. It is submitted that it is the appellant, who had raised the construction of the shops and his residential house on the aforesaid land by spending different amounts at different point of time and that his brother respondent No.5, who has been living outside the country since long and also the predecessor-in-interest of respondents 2 to 5, had not contributed a single penny nor were they ever in possession. It is, thus, urged that since the land was liable to be escheated to the state and the appellant being in possession was exclusively entitled to the compensation payable in terms of the Govt. Order No.41-Rev/Laj of 2008 dated 18.02.2008. It is, thus, urged that since the land was liable to be escheated to the state and the appellant being in possession was exclusively entitled to the compensation payable in terms of the Govt. Order No.41-Rev/Laj of 2008 dated 18.02.2008. On behalf of the appellant, it is strenuously argued that the appellant had brought sufficient cogent evidence on record to prove that the land in question was all along in his possession to the exclusion of the respondents and that all structures had been raised by him out of his own pocket. The Trial Court, therefore, committed serious illegality in not appreciating the cogent and unambiguous evidence led by the appellant and instead gave undue credence to the ambiguous and inchoate statements made by the respondents 2 to 5 and their witnesses. 8. Per contra, learned counsel appearing for the respondents 2 to 5 urges that the compensation was payable on account of improvement charges for the structures raised over the state/shamlat/forest land to such families as were likely to be dislocated due to submergence of the area on account of the construction of Baglihar Hydroelectric Project and that in terms of the oral and documentary evidence on record, the trial Court rightly held all the three sons of the original occupant, namely, Mohd Khalil Kichloo entitled to the compensation to be distributed in equal shares. 9. Having heard learned counsel for the parties and perused the record, it would be necessary to first set out Govt. Order No.41-Rev/Laj of 2008 dated 18.02.2008:— “Government of Jammu and Kashmir Civil Secretariat, Revenue Department, Jammu Subject: Payment of compensation to the families, who have raised their structures over State/Shamilat/Forest land and are likely to be dislocated due to the submergence of the area on account of the construction of Baglihar, Hydroelectric project, Chanderkote. Ref:- Cabinet Decision No. 10/3 Dated-16-02-2008. Government Order No.41-Rev/Laj of 2008. Dated: 18.02.2008. Sanction is hereby accorded to the payment of compensation as improvement charges for the structures raised over State/Shamlat/Forest Land to such families as are likely to be dislocated due to submergence of the area on account of the construction of Baglihar Hydroelectric Project. The payment of compensation shall be made to the affected persons under the close supervision of Deputy Commissioner Doda, out of the funds provided by the by the Baglihar Hydroelectric Project Authorities for the acquisition of land for the purpose. The payment of compensation shall be made to the affected persons under the close supervision of Deputy Commissioner Doda, out of the funds provided by the by the Baglihar Hydroelectric Project Authorities for the acquisition of land for the purpose. By Order of the Government of Jammu and Kashmir. Sd/- (Masaud Samoon) Secretary to Government Revenue Department 10. Reading of the Govt. Order clearly reveals that its issuance by the Government was necessitated to provide compensation for the structures raised by the interested persons over the state/shamlat/forest land. Ordinarily under the provisions of the Land Acquisition Act and the rules framed thereunder, no compensation is payable to the unauthorized occupants of the state/forest land. However, the Government being conscious of the fact that various citizens having been in occupation of the State land since decades have also raised construction of the houses/shops without any objection from the State authorities. For many of them, income from such structures was only source of their livelihood. It is in this background, Govt. Order of 2008 came to be issued so that the persons in occupation of the state/shamlat/forest land and having raised structures thereon are also adequately compensated. The order is in the nature of a supplementary provision made for assessment of the compensation. During the course of arguments, lot of hair splitting was done by the learned counsel appearing in the matter. Since proper understanding and appreciation of the Govt. Order is pivtol to the determination of the dispute and resolution of the controversy involved, as such, I have very carefully gone through each line of the Govt. order looking to the context in which it has been issued by the Government. Admittedly, as per the Govt. Order of 2008, no compensation is paid for the state/shamlat/ forest land under occupation of the interested persons. The compensation is payable as improvement charges for the structures raised over such land and this compensation is payable only to such families as are likely to be dislocated due to submergence of the area on account of the construction of Baglihar Hydroelectric Project. For better appreciation, the Govt. The compensation is payable as improvement charges for the structures raised over such land and this compensation is payable only to such families as are likely to be dislocated due to submergence of the area on account of the construction of Baglihar Hydroelectric Project. For better appreciation, the Govt. Order can be split in the following manners:— (i) The compensation for the structures raised over the state/shamlat/forest land is payable as improvement charges; (ii) It is payable to the families which are dislocated due to submergence of the area in the construction of Baglihar Hydroelectric Project; (iii) The funds provided by the Baglihar Hydroelectric Project Authorities for acquisition of the land for the purpose are to be appropriated for payment of compensation aforesaid. 11. A plain reading of the Govt. Order aforesaid, therefore, unerringly suggests that the compensation payable under the Govt. Order is for the loss of structures raised on state/shamlat/forest land. A fortiori it is the person who has invested in raising the structures is entitled to be compensated and such person must be one who is dislocated due to submergence of the area in the construction of Baglihar Hydroelectric Project. In the instant case, respondent No.1 has acquired the land including the land in question at the request and on the indent of Baglihar Hydroelectric Project authorities which was needed by the later for construction of Hydroelectric Project. The acquisition, by its very nature, results in dislocation of the person/persons in occupation of the land. In these circumstances, what is important to determine the right of a person to be compensated under the Government order is to find out the person from evidence, oral or documentary or both, who on dislocation would suffer in terms of the money invested by him in raising the structures on the land belonging to the state/shamlat/forest land. The parties before me do not dispute that the land in question where the structures were standing was not owned by their predecessor-in-interest late Sh. Mohd Khalid Kichloo. It is true that in the revenue record he has been shown in his possession during his life time but mere possession of Mohd Khalil Kichloo cannot lead us to infer that it was Mohd Khalil Kichloo who had invested his money in raising the structures on the aforesaid land. Mohd Khalid Kichloo. It is true that in the revenue record he has been shown in his possession during his life time but mere possession of Mohd Khalil Kichloo cannot lead us to infer that it was Mohd Khalil Kichloo who had invested his money in raising the structures on the aforesaid land. The evidence on record if appreciated in right perspective would unflinchingly prove that it was the appellant who raised construction of the house/shops on the land in question and was also receiving rent from the tenants inducted in some of the shops constructed. Learned counsel for the respondents 2 to 5 despite his vehemence could not convincingly point out from the evidence led by the parties that the respondents 2 to 5 or their predecessor-in-interest, namely, Mohd. Khalil Kichloo had invested or contributed in the construction of the structures acquired by the respondent No.1. 12. The respondent No.2 Amina Begum wife of late Mohd Abdullah Riaz in her statement has herself stated that after the death of Mohd Khalil Kichloo, it was the appellant who was looking after his entire property. She has also accepted the fact that her husband and respondent No.6 were not residing in Doda. Respondent No.6 has been in London since 1965 whereas her husband would come to Doda and live in the house constructed by her father-in-law. During cross-examination, she clearly stated that she was not aware as to who was receiving the rent of the shops situated at Pull Doda as she used to remain outside. She, however, stated that the shops in question had been constructed before her marriage but could not tell as to when those shops were constructed. Her other witnesses including the power of attorney of respondents 2 to 5 also could not substantiate the objection of the respondents 2 to 5. The statement of Atta Ullah Nehru if read in its entirety would only indicate that the appellant and father of respondents 2 to 5 and respondent No.6 were the sons of late Mohd Ahmed Kitchloo and after his death have succeeded to his entire estate in equal shares. On the basis of inheritance, the aforesaid witnesses stated that the respondents 2 to 5 are also entitled to the 1/3rd share in compensation. On the basis of inheritance, the aforesaid witnesses stated that the respondents 2 to 5 are also entitled to the 1/3rd share in compensation. The other witnesses of respondents 2 to 5, namely, Ghulam Hassan Patigroo, Mohan Lal Gupta, Niayamat Ullah, Bashir Ahmed, Gul Mohd Patwari and Daleep Kumar Patwari have also not been able to indicate in their evidence that the shops acquired by the respondent No.1 had been raised by Mohd Khalil Kichloo during his life time and maintained by all the three brothers after his demise. Rather the evidence led by the appellant including statements made by the appellant is cogent and convincingly proves that it was the appellant, who alone was staying in Pull Doda and had not only raised the construction in the shape of shops and houses but was also maintaining the same. It has also amply come in the evidence of the appellant that these shops were under the tenancy of different tenants who had been regularly paying the rent to the appellant to the exclusion of others. As a matter of fact, it is not the case of respondents 2 to 5 that they ever inducted any tenant in the property or received any rent or portion thereof from any of the tenant. 13. From the foregoing evidence on record, it is found that the trial Court erroneously concluded that the property acquired was jointly owned and possessed by all the three sons of late Mohd Khalil Kichloo and therefore, was required to be distributed equally. It is on this premise, the trial Court committed an error and held the respondents 2 to 5 entitled to receive 1/3rd of the compensation payable for the land and the structures situated at Pull Doda, which had come under the acquisition of the respondent No.2. The true import of the Govt. Order 41-Rev/Laj of 2008 dated 18.02.2018 which was the basis of the payment of compensation was not appreciated by the trial Court. While there can be no dispute that all moveable and immoveable property left by deceased Mohd Khalil Kichloo would devolve on his three sons including Mohd Abdullah Riaz Kichloo the predecessor-in-interest of respondents 2 to 5 but this inheritance and succession is with respect to the properties owned and possessed by late Mohd Khalil Kichloo at the time of his death. Whereas the compensation in the instant case was payable as improvements charges of construction of structures made by the citizens on the state/shamlat/forest land unauthorisedly occupied. There was no commitment by the Government to pay compensation for the land, but as a gesture by a welfare state concerned with rehabilitation of the oustees of the state land, who had been in occupation for long and had invested their hard earned money in raising structures, they were compensated. Since the compensation was payable on account of improvement charges in raising construction, as such, the person/persons who had actually incurred the expenses in making the improvements on the state land by raising structures alone were entitled to the compensation. 14. In view of the aforesaid analysis and for the reasons given hereinabove, I am of the view that the judgment and decree passed by the court below is not sustainable in law and same is, accordingly, set aside. The appellant shall alone be entitled to receive the compensation for the structures raised by him to the exclusion of respondents 2 to 5. 15. Registry to draw the decree sheet, accordingly. 16. Disposed of as above along with connected IA(s).