Collector, Land Acquisition Thein Dam Project vs Geeto Devi

This appeal is directed against the award and decree dated 03.04.2002 passed by the learned District Judge, Kathua, in file No. 1/L.A. Act in

case entitled 'Geeto v. Collector', whereby respondent/petitioner has been awarded compensation for the land comprising khasra nos. 1438 &

1523 aggregating 44 kanals 10 marlas at the rate of Rs. 16,000/ per kanal being cultivable land (Warhal Aval) plus Jabrana at the rate of 15% and

interest at the rate of 6% per annum from the date of acquisition.

A chunk of land measuring 7420 kanals 04 marlas located at village Poonda, Tehsil Basohli, including the land belonging to the

respondent/petitioner, Geeto Devi, measuring 45 kanals 12 marlas & 21 kanals 10 marlas containing in khasra nos. 1438 and 1523, was acquired

by the Collector, Land Acquisition, Thein Project, Tehsil Basohli, District Kathua. This land was acquired at the instance of the Executive

Engineer, Project Division (I.E.) RSD Ranjit singh Dam (Thein Dam), for the public purpose i.e. for the construction of Thein Dam Project. The

Collector divided the acquired land into three categories namely Cultivable, Banjar and Gair Mumkin, and accordingly fixed the market value in

respect of these three categories at Rs. 16,000/, Rs.8,000/ and Rs.4,000/ respectively and issued the award on 24.09.1999. As per the

assessment made by the Collector, the compensation was paid to the respondent/petitioner. The claimant being dissatisfied with the amount of

compensation awarded by the Collector filed a petition under Section 18 of the Land Acquisition Act and sought a reference to the Civil Court for

determination of the market value. Before the Reference Court, the claimant in her petition stated that her land should be valued at Rs.25,000/ per

kanal but in any case not less than Rs.18,700/ per kanal as the market value at the time of issuance of notification under Section 6 of the Land

Acquisition Act. The claimant further contended that the land belonging to her, acquired by the Collector, was cultivable (Warhal Aval) at the time

of issuance of notification under Section 6 of the Land Acquisition Act but the compensation awarded is fixed by the Collector of land in the

category of Gair Mumkin/Banjar Kadeem. According to the claimant, her land was entered in the Revenue Record as cultivable land on the basis

of which compensation was claimed at the rate of Rs.25,000/ per kanal. The Collector, however, in the objections filed before the Reference

Court had taken a plea that the compensation was assessed as per the nature of the land recorded in the Revenue Record during the year 1971.

That the award has been passed as per the entry existing in the Revenue Record with regard to the nature of the land during the year 1971. Geeto

Devi, claimant, was paid compensation of Rs.5,90,82,856/ including the cost of structure and trees both fruit and nonfruit bearing and 15%

Jabrana.

The learned District Judge, Kathua, on the pleadings of the parties, framed the following issues for determination:

Whether the compensation assessed by the Collector in respect of the land acquired has not been assessed as per the market value, if so, what

was the market value of the land at the time of acquisition? OFF

Whether the application made by the petitioner before the Collector for reference is time barred and liable to be dismissed? OPR

Relief.

The Reference Court after hearing the parties and on perusal of oral and documentary evidence on record, vide its judgment and decree7award

dated 03.04.2002, held the claimant entitled to compensation of 44 kanals 10 marlas of land at the rate of Rs.16,0007/ per kanal being cultivable

land (Warhal Aval) reflected in the Revenue Record (Khasra Girdawari) in the year 1996, which became the subject matter of challenge in this

appeal by the Collector, Land Acquisition.

The decree and award passed by the Reference Court has been challenged mainly on twin grounds; (i) that the land of the claimant/respondent

recorded in the Revenue Record during 1971 was Gair Mumkin and the compensation was assessed as per the entries in the Revenue Record

pertaining to Kharief 1971 as per the Government Order No.121Rev (LAJ) 1993 dated 17.08.1993; and (ii) that the Girdawar had changed the

Girdawari entry of the land of the claimant and reflected a particular class of land in the Revenue Record and improved upon the said classification

with oblique motive and without any competence, against whom an inquiry has been ordered for misuse of his official position.

Heard the learned counsel appearing for the respective parties in extenso. A minute examination of facts on file has also been made. It is not in

dispute that notification under Section 4(1) of the J&K Land Acquisition Act (for short hereinafter referred to as 'the Act') came to be issued by

the Collector Land Acquisition, Thein Dam, Basohli on 16.11.1996. Whereas, notification under Section 6 of the Act was issued by the

Government declaring that the land is required for public purpose. It is also admitted that the nature of the land belonging to the claimant/petitioner

was recorded in the Revenue Record as cultivable (Warhal aval) prior to the issuance of notification under Section 4(1) of the Act. In the matter of

determination of compensation to be awarded in respect of the land acquired under the Act, the Court under Section 23 of the Act, is required to

take into consideration the market value of the land on the date of publication of declaration relating thereto under Section 6 of the Act. It is not the

case of the appellant that the entry made in the Revenue Record pertaining to the nature of the land of the claimant as cultivable (Warhal Aval) has

been wrongly reflected in the year 1996 and contrary to the position on spot.

The sole contention of the appellant is that as per the Revenue Order of 1993 (supra), the compensation of the land acquired is to be assessed

as per the nature of the land recorded in Kharief 1971. The record clearly shows that at the time of the issuance of notification under Section 6 of

the Act in the year 1997 the nature of the land acquired was Warhal Aval recorded in the Khasra Girdawari and Revenue Record. The true import

of Section 23 of the Land Acquisition Act is that while determining the compensation, the market value of land is to be assessed on the date of

publication of the declaration under Section 6 of the Act. The compensation of the land acquired is to be determined by the Court in considering

the nature of the land shown/reflected in the Revenue Record and its market value at the time of publication of the declaration under Section 6 of

the Act as is contemplated under Section 23 of the Land Acquisition Act. So what is relevant for determining the market price is the nature of the

land which existed at the time of issuance of notice under Section 6 of the Act and not the nature of land recorded in Kharief 1971, required to be

taken into consideration by the Court for determining the market value and for the assessment of compensation of the land acquired. Admittedly,

the land has been recorded in the Revenue Record i.e. Khasra Girdawari of 1996 to be cultivable in nature and the compensation should be

assessed at the rate of Rs. 16,000/ per kanal.

The plea put across by Mr. A.H. Qazi, Addl. AG, is that an inquiry has been ordered against the Girdawar, Poonda, for having changed the

Girdawari entries and reflected a particular class of land viz., cultivable land in order to give undue benefit to the land owners and relied upon a

communication dated 28.06.2002 annexed with the memo of appeal. But this inquiry has been ordered at the instance of the then Additional

Advocate General while filing the appeal only with a purpose to prejudice the mind of the Court and just to support the appeal as he had no valid

ground to challenge the award. Even the Girdawar has not been examined who is stated to have changed and converted the entries of the kind of

land from Gair Mumkin to Cultivable nor the Patwari who prepared the Khasra Girdawari of 1996 reflecting the acquired land belonging to the

claimant as cultivable has been examined. These witnesses could alone have explained how the entries with regard to the nature of the land of the

claimant came to be recorded in the Khasra Girdawari.

It is pertinent to point out that the Collector, Land Acquisition, while initiating the process of acquiring land in the year 1996, knew that the

nature of the land belonging to the claimant and acquired for Thein Dam, has been recorded in the Revenue Record and Khasra Girdawari of 1996

as cultivable land but no action was taken against the Revenue Officer who made these entries. No action was taken against the Girdawar during

the currency of the proceedings before the Reference Court nor any such plea was taken by the Collector in his objections filed before the District

Judge, Kathua. Even the entries in the Revenue Record with regard to the status of the land belonging to the claimant at the time of publication of

notification under Section 6 of the Act, have not been challenged. The Collector has not even disputed the correctness of the entries in the Khasra

Girdawari of 1996 as cultivable and only stated that the assessment has been made as per the nature of the land of the claimant reflected in Kharief

1971. It is for the first time that the Collector/appellant has raised this plea that the Girdawar has manipulated and changed the nature of the land

from Gair Mumkin to Cultivable in the year 1996 with a view to benefit the owners. Strangely enough it is not the correctness of the entry but the

competence of the Revenue Officer to change it in 1996 which is being questioned but since there is always a presumption of correctness attached

to the entries in the Revenue Record unless rebutted by better evidence, the reference court had no option but to accept the plea and follow the

mandate of Section 23 of the Land Acquisition Act.

The record of the entries in Khasra Girdawari of 1996 relied upon by the Reference Court clearly mention that the land belonging to the

claimant and acquired by the Collector is cultivable since 1996. The assessment of compensation, therefore, has to be made as per the market

value of the nature of the land shown in the Revenue entries at the time of issuance of publication of notification under Section 6 of the Act and not

as per the nature of the land recorded in Kharief 1971. The contention of Mr. Qazi, therefore, is neither factually nor legally tenable to merit

acceptance and, thus, can not be accepted.

Another limb of argument advanced by Mr. Qazi, is that no issue with regard to the nature/classification of the land to be taken into account for

determination of compensation to which the whole controversy pertains, was framed by the Reference Court. In this regard it is meaningful to point

out that the issues are always framed on the pleadings of the parties. No such plea was taken by the Collector in his reply filed before the

Reference Court nor any such objection was taken by the appellant/Collector at the time of framing of the issues or later till the passing of the

award and decree by the Reference Court. In such circumstances, no such plea is available to the appellant/Collector at this stage viz., in appeal.

It was next contended by Mr. Qazi that the land had been acquired on behalf of the Executive Engineer Project Division (I.E.) RSD Ranjit

Singh Dam (Thein Dam) and the indenting party was interested person and without his impleadment as party, the reference could not have decided

by the District Judge. Neither this plea had been taken before the Reference Court by the Collector nor the indenting party came forward for his

impleadment in the Reference before the District Judge. This plea, therefore, is also of no avail to the appellant and can not be accepted.

Mr. Qazi, Addl. AG, further submitted that the potential value of the land has to be taken into account while determining the market value at

the time of acquisition. Undoubtedly, in fixing the market value of the land the Court has to take into account the potential value on the basis of its

use, status, classification and category at the relevant time. It has been conclusively proved from the Revenue Record that the land at the time of

acquisition was recorded as Cultivable (Warhal Aval) and, accordingly, claimant was entitled to compensation at the rate fixed for cultivable land

classified/categorized in the Revenue Record at the time of publication of notice under Section 6 of the Land Acquisition Act. In such event entry

with regard to the nature of the land in the year 1971 as vouched by Mr. Qazi, has no relevancy for the determination of market value of the land

at the time of acquisition. It may further be pointed out that the value of the land can be ascertained and fixed on a reasonable consideration of the

realities of the situation/status of the land at the relevant time. The Reference Court, therefore, has rightly allowed the compensation of the land

acquired belonging to the claimant on the market value fixed by the Collector for the classification/status of the land viz., Warhal Aval (cultivable).

Therefore, the Reference Court has not enhanced the compensation but awarded the rate fixed by the Collector per kanal holding that the

Collector erred in awarding the compensation at the lower rate relying on the government circular instead of the compensation fixed by him for

cultivable land. The contention of the appellant's counsel is, therefore, devoid of substance and, thus, can not be accepted.

In the result, the appeal, in my opinion, does not possess any merit and is, accordingly, dismissed.

The parties to bear their own costs.