SKUAST vs Collector And Others

Sanjay Dhar, J

1) By this common judgment, two Civil First Appeals, one against judgment and decree dated 31.07.2014 passed by learned Additional District Judgment, Srinagar, bearing CFA No.224/2014 and the other against judgment dated 28.06.2004 read with order dated 30.08.2011 passed by the learned District Judge, Srinagar, bearing CFA No.138/2011, are proposed to be decided.

2) The facts giving rise to the filing of CFA No.138/2011 against judgment dated 28.06.2004 read with order dated 30.08.2011 passed by learned District Judge, Srinagar, are that a reference under Section 18 of the State Land Acquisition Act was made to the said Court on 23.01.1989 by Collector/Additional Deputy Commissioner, Srinagar, pursuant to the application filed by respondents N.2 to 7 herein. It appears that a requisition was made by appellant-University, pursuant to which land measuring 13 kanals 06 kanals situated at Shuhama Ganderbal, Srinagar, was acquired and the Collector, after conducting necessary proceedings in terms of the provisions contained in the State Land Acquisition Act, passed the final award dated 21.04.1988, whereby the land owners were awarded Rs.21,000/ per kanal as compensation for the acquired land. They were also held entitled to Rs.8,99,740/ as cost of fruit bearing trees that were standing on the acquired land. Besides this, Jabirana @15% on the cost of land and 6% interest was also awarded in favour of the land owners. The land owners claimed that the market value of the land in the vicinity of the acquired land is Rs.40,000/ per kanal and that potential value of the land has not been taken into consideration by the Collector. It seems that the Collector did not contest the reference whereas the appellant University did contest the reference.

3) Vide order dated 15.09.1998, the learned District Judge, Srinagar, framed the following issues:

How much land has been taken from the petitioners and when? OPP

Whether the market value of the land acquired by SKUAST per kanal was Rs.40,000/ at the time of its acquisition? OPP

In case issue number 2 is not proved, whether the market value was paid by SKUAST at the time of acquisition? OP Respondents.

Whether the land taken by SKUAST has developed into an orchard with fruit trees and the land falls in the high-rate zone of Srinagar and if so, what should have been the market value at the time of acquisition? OPP

Whether the payment of compensation was accepted without any hesitation and the petitioners were satisfied by the award of the Collector? OP Respondents.

Whether the market value was assessed properly at the time of acquisition and the petitioners as such have no cause of action? OP Respondents.

Relief

4) The land owners examined five witnesses including applicant Ghulam Mohammad Ganai in support of their case whereas the appellant-University examined only one witness, namely, Mohammad Ibrahim Shah.

5) Regarding issue No.1, the learned District Judge, after appreciating the evidence on record, came to the conclusion that land measuring 13 kanas and 06 marlas in Khasra Nos.174 and 178 in Village Shuhama has been acquired by the Government. Regarding market value of the land, the learned District Judge, relying upon the observations of the Collector made in the award relating to acquisition of land measuring 898 kanals and 08 marlas situated in Villages Shuhama and Buserbugh, that the said land is at par with respect to its location, productivity of land, potentiality, soil and irrigational availability and other facilities with the land under acquisition, concluded that the market value of the land fixed in the said case can be made the basis for assessing market value of the land which is subject matter of the acquisition in the instant case.

6) It was noted by the learned District Judge that in the earlier acquisition proceedings, the Collector had fixed the market value of the land @Rs.17,000/ per kanal and upon reference to the Reference Court, the same was enhanced to Rs.35,000/ per kanal. The learned District Judge also noticed the fact that in the award passed by the Collector in the instant case, a sum of Rs.4000/- was added to the market value of the land assessed as per the award made in the earlier acquisition proceedings, so as to take care of the time gap. Accordingly, the Collector in the instant case increased the market value of the land @ Rs. 17000 + Rs.4000/(Rs. 21000) per Kanal. Taking a cue from this, the learned District Judge added Rs.4,000/- on account of increase due to time gap on the market value assessed by the Reference Court in the earlier acquisition proceedings and assessed the market value of the land @Rs.35000+Rs. 4000 (Rs. 39,000/-) per kanal. However, the learned District Judge vide his impugned order also took note of the fact that the award passed by the Reference Court in the earlier acquisition proceedings is subject matter of challenge before this Court, therefore, result of the reference should await the decision of the High Court in the other case.

7) It appears that the land owners made an application under Section 151 of the CPC before the learned District Judge, Srinagar, and the same was accepted in terms of impugned order dated 30.08.2011 passed by the learned District Judge and the decree was directed to be framed in the light of the findings recorded by the District Judge in impugned judgment dated 28.06.2004. While directing the framing of decree, the learned District Juge observed that the judgment and decree passed in other case that had become the basis of the judgment dated 28.06.2004 has been set aside by the High Court on the technical ground that the indenting department had not been arrayed as party before the Reference Court and that there was no finding recorded by the High Court on merits of the case.

8) So far as the facts relating to CFA No.224/2014 are concerned, it appears that land measuring 898 kanals and 08 marlas comprised in various Khasra numbers situated in villages Shuhama and Buserbugh was acquired by the Collector pursuant to the notification issued under Section 4 of the Land Acquisition Act on 02.03.1985 on the basis of the indent furnished by the appellant-University. After completing the requisite procedures, the Collector passed a final award on 12.07.1988 in terms of Section 11 of the Act. As per the award, the market value of the acquired land was fixed at Rs.17,000/ per kanal for proprietary cultivable land, Rs.12,000/ per kanal for proprietary uncultivable land and Rs.10,000/ per kanal for kahcharai and Shamilat lands. In addition to this Jabirana @15% on the compensation amount was directed to be paid the land owners.

9) The land owners, feeling dissatisfied with the determination of the market value, made an application before the Collector for reference under Section 18 of the Land Acquisition Act and, accordingly, a reference as made to the District Judge, Srinagar. It was pleaded by the land owners that the Collector has not considered the sale deeds which reflect the average sale rate of adjacent lands at Rs.35,000/ per kanal.

10) It appears that initially only the Collector was made a party to the reference and the indenting department was not made a party to the reference. On 4th November, 1996, an award came to be passed by the learned District Judge, Srinagar, whereby market value of the acquired land was assessed at Rs.35,000/ per kanal. Two writ petitions came to be filed by the appellant herein before this Court bearing OWP No.336/1998 and OWP No.398/1998 challenging the award passed by learned District Judge as also the execution proceedings commenced pursuant to the award. The writ petitions were allowed by this court in terms of judgment dated 26.10.2009 and award dated 4th November, 1996, passed by the learned District Judge, Srinagar, was set aside. The execution proceedings were also quashed and the matter was remanded to Principal District Judge, Srinagar, for its consideration afresh after impleading the appellant indenting department as party to the reference proceedings.

11) Pursuant to the directions of the High Court passed on 26.10.2009, the appellant indenting department was made a party to the reference proceedings that were transferred to the Court of Additional District Judge, Srinagar. On 05.02.2013, the learned Additional District Judge framed the following issues:

Whether the compensation with regard to suit land has been genuine as per accurate market value of the land and if so what was the correct market value of the suit land under the acquisition? OPP

Relief.

12) In support of their case, the land owners examined PW-1 Zahoor Ahmad Wani, PW-2 Ghulam Mohammad Ganai and PW-3 Ghulam Nabi Wani. No witness was examined by the appellant indenting department, but it produced the certified true copy of the statement of Engineer Mohammad Ibrahim Shah, whose statement had been recorded in the other reference.

13) The learned Additional District Judge, Srinagar, after appreciating the evidence on record, came to the conclusion that market value of the proprietary land that has been acquired under award dated 12.07.1988 is Rs.35,000/ per kanal whereas market value of Shamilat Section 5 occupied cultivable land is Rs.17,500/ per kanal and market value of unoccupied Shamilat land is Rs.17,500/ per kanal. Accordingly, the land owners were held entitled to compensation for the acquired land on the aforesaid rates along with Jabirana @15% and interest @6% per annum.

14) The appellant-indenting department has challenged both the impugned judgments passed by the learned Principal District Judge, Srinagar, and Additional District Judge, Srinagar, on the grounds that there was no evidence before the learned courts below to come to a conclusion that the market value of the acquired land was Rs.35,000/ or Rs.39,000/ per kanal. It has been contended that the awards have been passed on totally extraneous material. It has been contended that the courts below, instead of undertaking an exercise to determine the market value of the land as on the date of declaration under Section 6 of the Land Acquisition Act, have proceeded to determine the market value of the acquired land in a mechanical and arbitrary manner. It has been submitted that the market value assessed by the Collector while making the award was based on cogent material and there was no ground to interfere with the same.

15) Additional grounds have been urged while assailing the award made by learned Principal District Judge, Srinagar, relating to acquisition of 13 kanals and 06 marlas of land by contending that no record has been examined by the court below and it has simply taken the market value of the land assessed in the other case as the basis for assessing the market value of the acquired land.

It has been further submitted that order dated 30.08.2011 passed by learned District Judge, Srinagar, is not sustainable in law as the award, on the basis of which the decree was directed to be framed vide the aforesaid order, was set aside by the Writ Court in terms of order dated 26.10.2009.

16) I have heard learned counsel for the parties and perused the record of the case including the record of the courts below.

17) Before dealing with the grounds of challenge, it would be apt to refer to the relevant provisions of the State Land Acquisition Act, 1990, which provide guidelines for determination of the market value of acquired land. Sections 23 and 24 of the Act are relevant in this regard and the same are reproduced as under:

23.-Matters to be considered in determining compensation-

(l) In determining the amount of compensation to be awarded for land acquired under the Act, the Court shall take into consideration-

first, the market value of the land at the date of the publication of the declaration relating thereto under section 6;

secondly, the damage sustained by the person interested by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof;

thirdly, the damage (if any) sustained the person interested at the time of the Collector’s taking possession of the land by reason of severing such land from his other land;

fourthly, the damage (if any) sustained nu the person interested, at the time of the Collector's taking possession of the land; by reason of the acquisition injuriously affecting his other property movable or immovable in any other manner, or his earning;

fifthly, if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and,

sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration, under section 6, and the time of the Collector's taking possession of the land.

(2) In addition to the market value of 'the land as above provided, the Court shall in every case award a sum of fifteen per centum on such market value in consideration of the compulsory nature of the acquisition.

Matters to be neglected in determining compensation- But the Court shall not take into consideration-

first, the degree of urgency which has led to the acquisition;

secondly, any disinclination of the person interested to part with the land acquired;

thirdly, any damage sustained by him which if caused by a private person, would not render such person liable to a suit;

fourthly, any damage which is likely to be caused to the land acquired, after the date of the publication of the declaration under section 6, by or in consequence of the use to which it will be put;

fifthly, any increase to the value of the land acquired likely to accrue from the use to which it will be put when acquired;

sixthly, any increase to the value of the other land of the person interested likely to accrue from the use to which the land acquired will be put;

seventhly, any out-lay or improvements on, or disposal of the land acquired, commenced. made or effected, without the sanction of the Collector, after the date of the publication of the declaration under section 6; and

eighthly, any increase to the value of the land on account on its being put to any use which is forbidden by law or opposed to public policy.

18) From a conjoint reading of the aforesaid provisions, it is clear that the crucial date for determining the market value of the acquired land is the date of publication of declaration relating thereto under Section 6 of the Act. It is also to be noted that any potential increase in the value of the acquired land that may accrue on account of the use to which such land will be put when acquired, has to be ignored. So, the main consideration for determining the amount of compensation of acquired land is its market value as on date of issuance of declaration under Section 6 of the Act.

19) Before coming to the question whether market value assessed by the learned Principal District Judge, Srinagar, in respect of land measuring 13 kanals and 06 marlas situated in Village Shuhama Ganderbal, warrants any interference by this Court, it would be apt to first of all decide the fate of CFA No.224/2014 which relates to acquisition of land measuring 898 kanals and 08 marlas situated in Village Shuhama and Buserbugh. This is so, because the basis of the rates of the acquired land fixed by the learned District Judge in his judgment dated 28.06.2004, is the assessment of market value of the acquired land made in the other reference which has been decided by the Additional District Judge, Srinagar. If it is found that the assessment of the market value of land made by the Additional District Judge, Srinagar, is in accordance with law, then there is no need to interfere with the judgment passed by the learned Principal District Judge, Srinagar.

20) Coming to the matter relating to acquisition of land measuring 898 kanals and 08 marlas situated in Villages Shuhama and Buserbugh, it is revealed from the record that notification under Section 6 and 7 of the Land Acquisition Act was issued in the year 1985. So, the crucial date for the determination of the market value of the acquired land would be the year 1985. If we go to the award dated 12.07.1988 passed by the Collector, the land owners produced as many as five sale deeds before the Collector. In terms of sale deed dated 25.03.1980, land measuring 01 kanal and 01 marlas was sold at Village Shuhama for Rs.25,000/, in terms of sale deed dated 18.08.1981, land measuring 01 kanal ad 04 marlas was sold for Rs.25,000/ in the same Village, in terms of sale deed dated 04.08.1981, land measuring 13 marlas was sold for an amount of Rs.15,000/ in the same Village, in terms of sale deed dated 21.09.1985, land measuring 01 kanal was sold for Rs.26,000/ and in terms of sale deed dated 10.02.1984, land measuring 10 marlas was sold for Rs.27,500/.

21) In the award it has been noted by the Collector that the sale deeds produced before him indicate that consideration of Rs.25,000/ has been paid for purchase of land measuring 01 kanal and 01 marla under Survey No.321, consideration of Rs.25,000/ has been paid for 17 marlas under Survey No.322/4 and the said sale deed has been executed in April, 1986. It has also been noted that one more sale transaction has taken place on 16th August, 1981, wherein 01 kanal and 04 marlas of land in Survey No.420 has been sold by Yousuf in favour of Mst. Mehmooda for an amount of Rs.25,000/. It is further noted that another sale deed dated 21.09.1985 shows alienation of one kanal of land under Khasra No.800/702 for an amount of Rs.16,000/. The Collector goes on to note that the sale deed dated 19.02.1984 shows the sale consideration as Rs.27,500/ for ten marlas cannot be relied upon because the same has been executed to avoid preemption rights of co-sharers. The award further reveals that Tehsildar, Ganderbal, had reported average sale rate of Rs.35,000/ per kanal.

22) The Collector has, after taking note of the aforesaid factors, come to the conclusion that most of the sale deeds produced by the land owners are not relevant for fixation of rates because the same do not pertain to the period when the declaration under Section 6 of the Land Acquisition Act was made. The consideration amount reflected in one of the sale deeds executed in the year 1984 was viewed with suspicion by the Collector. He has also brushed aside the report of the Tehsildar concerned, according to which the market value of the land is Rs.35,000/ per kanal.

23) Learned counsel for the appellant has vehemently contended that without examining the Tehsildar as a witness before the Reference Court, the market value of the land furnished by him could not have been relied upon by the said Court and on this ground alone, the impugned order passed by the Reference Court is liable to be set aside.

24) If we have a look at the impugned judgment/order passed by the learned Additional District Judge, Srinagar, the reliance has not only been placed upon the report of the Tehsildar concerned but the learned District Judge has also taken into account the fact that the land owners had produced five sale deeds pertaining to the period 1984-85 which disclosed the average sale rate of the land as Rs.35,000/ per kanal. The Collector has unnecessarily raised doubt about the authenticity of the rates shown in these sale deeds. He has gone to the extent of doubting one of the sale deeds by stating that the consideration amount shown in the said sale deed is devised to defeat the right of preemption of co-sharers. There was nothing on record before the Collector to draw such an inference, at least the Collector has not made reference to any record or material in support of such an inference.

25) There can be no dispute to the fact that most of the sale deeds that were placed by the land owners before the Collector did not pertain to the year 1985 when the declaration under Section 6 of the Land Acquisition Act was made. In a case where there is no material before the Collector on the basis of which he could assess the market value of the land on the crucial date of issuance of declaration under Section 6 of the Act, it is open to the Collector to take into account the sale deeds which are proximate in time to the date of declaration under Section 6 of the Act. In such cases, market value of the land can be assessed on the basis of the rates of land mentioned in the sale deeds which are proximate in time to the date of declaration under Section 6 of the Act by making proper adjustments.

26) The Collector could not brush aside the sale deeds produced before him by simply stating that these sale deeds do not pertain to the period when declaration under Section 6 of the Act was made. In fact, most of the sale deeds produced by the land owners before the Collector pertained to the period proximate to the year 1985. Instead of relying upon these sale deeds, the Collector has, while determining the market value of the land, placed reliance upon the mutations of seven transactions which also pertained to the years 1984-85. The Collector could not have ignored the evidence regarding sale transactions produced by the land owners in the years 1984-85 and accepted the sale transactions for the same period procured during the enquiry. In fact, the Collector has, while assessing the market value of the land, relied upon certain sale transactions that have taken place after the declaration under Section 6 of the Act but has refused to rely upon the sale transactions for the same period that were produced by the land owners.

27) Another aspect of the matter which is required to be noticed is that the Collector has brushed aside the sale rate statement furnished to him by the Tehsildar concerned who had clearly stated that the market value of the acquired land is Rs.35,000/ per kanal. No reason, much less any cogent reason, has been given by the Collector while discarding the sale rate statement furnished by the Tehsildar. It is not the whim/choice of the District Collector to reduce the market value of the land by ignoring the sale rate statement of the Tehsildar concerned without there being any evidence before him.

28) For what has been discussed hereinbefore, I do not find any ground to interfere with the well-reasoned and lucid judgment dated 31.07.2014 passed by the Additional District Judge, Srinagar. The market value of the acquired land fixed vide the aforesaid judgment is absolutely in accordance with the principles governing the assessment of the market value of the land and the same does not warrant any interference from this Court.

29) Having held that market value of the land which is subject matter of judgment dated 31.07.2014 is Rs.35,000/ per kanal for proprietary cultivable/ uncultivable land, the basis for market value of the land assessed by the learned Principal District Judge, Srinagar, vide its judgment dated 28.06.2004 is sound, inasmuch as it is an admitted case of the parties that the land which is subject matter of judgment dated 28.06.2004 is similar in every respect to the land which is subject matter of judgment dated 31.07.2014. After taking into account the increase of Rs.4,000/ on account of the time gap of acquisition, the learned District Judge has rightly assessed the market value of the acquired land has Rs.39,000/. Thus, the judgment passed by the learned District Judge, Srinagar, on 28.06.2004 also does not warrant interference from this Court.

30) In view of what has been discussed hereinabove, both the appeals are dismissed being without any merit. The enhanced amount of compensation, if deposited with the Registry of this Court, shall be released in favour of the award holders, in accordance with the apportionment statement annexed to the award.

31) The record of the courts below be sent down.