[2017] 2 S.C.R. 874

ALI MOHAMMAD BElGH AND ORS.

STATE OF J & K

(Civil Appeal Nos. 4295-4297 of2017)

MARCH21,2017

[KURIAN JOSEPH AND R. 8AN_lJMATHI, JJ.J

Jammu and Kashmir Land Acquisition Act, 1934 Compensation - Lands in question granted less compensation as compared to identical and similar lands situated in adjacent villages acquired for the same purpose - Impropriety of - Appellants' land acquired for Rs.2,50, 000/- per kanal while that of other land owners situated i11 adjace11t villages acquired for same purpose granted Rs.4,00,0001per ka11a/ - Held: When the lands i11 question are situated nearby and are identical and similar and the acquisitio11 is at the same time and for the same purpose, it would not be proper to discriminate between the land owners unless there are strong reasons

- Appellants are at par with other land owiiers whose lands are acquired - He11ce, they are also entitled to enhanced compe11sation of Rs.4,00,0001per Kanai with 15% solatium (Jabirana) and all other statutory benefits.

Allowing the appeals, the Court

HELD: 1.1 Appellants' lands in question are situated in village Chandapora which is adjacent to villages Bhagichandpora and Pazwalpora. In cases of acquisition oflands in Bhagichandpora and Pazwalpora which are adjacent to the lands of the appellants and were also acquired for the same purpose of resettlement of Dal dwellers, the Reference Court, after referring to the evidence adduced by the claimants thereon and the assessment of marker rate by Tehsildar at Rs.4,00,000/- per Kanai, held that the land owners are entitled to compensation for the acquired land at the

rate of Rs.4,00,000/- per Kanai with solatium at 15%. [Para 11 J

[879-EJ

1.2 Since village Chandapora is situated adjacent to villages Bhagichandpora and Pazwalpora, there was no reason why the

AU MOHAMMAD BEIGH AND ORS. v. STATE OF J & K

Reference Conrt differentiated the acquired lad of the appellantsland owners situated in Chandapora by awarding lesser compensation of Rs.2,50,000/-. The appellants had also produced a sale deed by which a small strip of land was sold in the vicinity of the acquired land for an amount of Rs.1,00,000/-. But the Reference Court discarded the evidence of witness on the ground that under the sale deed only a small area of land was sold and the sale deed cannot be taken to be a representative character of the entire land. The Reference Court was not right in discarding . the said sale deed which was supported by oral evidence of the witnesses, .to substantiate their claim that the market rate assessed by the Tehsildar at Rs.2,50,000/- was not a fair compensation. [Para 12) [879-G-H; 880-A-C)

1.3 When the lands are more or less situated nearby and when the acquired lands are identical and similar and the acquisition is for the same purpose, it would not be proper to discriminate between the land owners unless there are strong reasons. [Para 13) [880-C-D)

\.....~ Union of India v. Bal Ram and Another (2010) 5 SCC 747; Union of India v. Harinder Pal Singh and Others.

(2005) 12 SCC 564 : [2005) 4 Suppl. SCR 669 - relied on.

1.4 Therefore, when the lands situated in three different villages are identical/similar and are acquired at the same time and for the same purpose, it would be unfair to discriminate between other land owners and the appellants and pay less that is Rs.2,50,000/- per Kanai to the appellants and pay more to other land owners that is Rs.4,00,000/- per Kanai. The appellants are held to be at par with other land owners whose lands were acquired. Hence, they are also entitled to enhanced compensation of Rs.4,00,000/- per Kanai with 15% Solatium (Jabirana) and all other statutory benefits. [Para 15) [881-C-EJ

Case Law Reference

c2910) 5 sec 747

[20051 4 Suppl. SCR 669

relied on

relied on

Para 13

Para 13

A , CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4295-

4297 of20I 7.

From the Judgment and Order dated 24.09.2013 of the High Court of Jammu & Kashmir at Srinagar in CIA No. 2 I 1 of 2009 and Cross Appeal No. 64 of2011.

J. H. Reshi, Rahul Gupta, M. Mushtaq, Advs. for the Appellants.

G. M. Kawoosa, Shoeb Alam, Ad vs. for the Respondent.

The Judgment of the Court was de] ivered by

R. BANUMATHI, J. 1. Leave granted.

2. These appeals arise out of the common judgment and order dated 24.09.2013 and 15.05.2015 passed by the High Court of kmmu and Kashmir at Srinagar dismissing CIA No.211 of 2009 along with Cross Appeal No.64 of 2011 and Review Petition Civil No. 07of2013 affirming the compensation of Rs.2,50,000/- per Kanai awarded to the appellants by the Reference Court.

3. Brief facts which led to filing of these appeals are as follows: Notification dated 16.06.1997 was issued by the Collector, Lakes and Waterways Development Authority (LAWDA), Srinagar vide No.C- LDA/452-64, under Section 4(1) of the Jammu and Kashmir Land Acquisition Act forthe acquisition ofland measuring 505 Kanai 06 Mafias situated at Chandapora, Tehsil and District Srinagar, forthe construction and development of housing colony for the resettlement of dislocated families of the Dal dwellers. On 01.06.1999, a Final Award was passed by the Collector, LAW DA, Srinagar under the Jammu and Kashmir Land Ac.CJUisition Act vide No. G-LDA 293-98 in respect of land measuring 505 Kanai 06 Marlas situated at Chandapora, Tehsil and District Srinagar.

The Land Acquisition Officer assessed the compensation amount payable to the applicants/estate holders at the rate of Rs.1,50,000/- per Kanai Abi-Bagh, Rs.1,40,000/- per Kanai for A bi-Awai and Rs.1,30,000/- for Gair-Mumkin: On 01.06.1999, Col.lector passed the Final Award fixing compensation rates: (i)Abi-Baghirrigated Orchard land (Rs.1.50 lacs per Kanai); (ii) Abi-Awal - agricultural land (Rs.1.40 lacs per Kanai); and (iii) Gair-Mumkin - Barren land (Rs.1.30 lacs per Kanai).

4. Being aggrieved by the compensation awarded by the Collector, Li\ WDA, Srinagar, the appellants sought reference to the District

Judge/Reference Court to establish their claims for enhanced A compensation. The Reference Court vide judgment dated 3 I. I 0.2008 held that the appellants are entitlei! to get compensation of Rs.2,50,000/

- per Kanai and also awarded compensation to the tune of Rs. I 0,000/- per Kanai on account of fencing.

5. Feeling aggrievedby the compensation awarded by the Reference Court, State filed appeal CIA No.211 of 2009. Claimants have filed Cross Appeal bearing No.64 of 2011, seeking enhancement of compensation to Rs.4,00,000/- per Kanai. The High Court dismissed "· the State's appeal. The Cross Appeal filed by the appellants was also dismissed by the High Court holding that the appellants .rave not led any evidence which could have been the basis fpr enhancing compensation to Rs.4,00,000/- per Kanai as has been done in other cases. The review petition filed by the appellants also came to be dismissed ... Being aggrieved by the dismissal of their Cross Appeal and the review, the appellants have filed these .appeals.

6. Learned counsel for the appellants submitted that in the case of Reference No.5 of 2002 titled Slwmim Ahmed D"r ""'' Ors. vs.

Collector, LAWDA, the Reference Court granted compensation at the rate of Rs.4,00,000/- per Kanai for the acquired land situated in the same village Chandapora where the acquired land of the appellants was also situated and while so the Reference Court erred in not granting the same rate of compensation, that is at the rate of Rs . .4,00,000/- per Kanai to the appellants. Learned counsel further contended that Reference Court was not right in discriminating the appellants by granting compensation to them only at the rate ofRs.2,50,000/- per Kanai while in the case of adjacent land owners compensation has been fixed at the rate of Rs.4,00,000/- per Kanai.

7. Per contra, learned counsel for the respondent-State submitted that the appellants have failed to adduce evidence to justify their claim qua compensation to the tune of Rs.4,00,000/- granted to the land owners. On the contrary, it was subniitted that the land owners in Reference No.5 whose compensation has been enhanced to Rs.4,00,000/

- have proved their case by adducing evidence in support of the said enhanced compensation. It was urged that the case of the appellants can in no way be compared with Reference No.5 and other cases inasmuch sin the said reference, land owners have clearly proved the

A rate at Rs.4,00,000/- per Kanai as .per the market rate and the High Court rightly dismissed the Cross Appeal of the. appellants and the impugned judgment warrants .no interference.

8. We have carefully considered the rivai"contentionsan_d also perused the impugned judgment and tile materials on record.

9. Admittedly, the land measuring 65 Kanai Yi Marla of the appellants herein comprising of Khasra Nos. 115, 3631118, 179, 155, 197, 155, 90, 157, I 00, 372/112, 102, 172, 173, 14 4 Min, 198, 148 and 194 covered by Reference No.15/2002 was acquired for the purpose of resettlement of Dal dwellers in the year 1997-1999. In or about the same time, the lands adjacent to the land of the appellants in Chandapora, Bhagichandpora and Pazwalpora were also acquired for the same purpose of resettlement of Dal dwellers by various references.

Comparative table of the details ofacquisition oflands of the appellants and the other

land acquired in Chandapora, Bhagichandpora and Pazwalpora is as under:

Village

S.4(1)

S.6 Final Award Reference Court Notification Declaration Award

Chandapora 10.01.1997 02.06.1997 01.06.1999 Reference No. 15/2002

DOA 31.10.2008.

Reference No. 5/2002

DOA 03.11.2008 Bhagi- 24.06.1997 05.07.1997 01.06.1999 Reference I Chandapora 1/2003 6/2002

DOA 03.11.2009

Pazwalpora 16.06.1997 05.07.1997 14.07.1999 Reference No. 7/2002

DOA 03.l 1.2009

I 0. Learned counsel for the appellants has drawn our attention towards the fact that the villages of Chandapora, Bhagichandapora and Pazwalpora are situated adjacent to each other and share a common border/boundary with each other. The inter se distance between these villages is not much, however, centre to centre distance between these villages is less than halfa kilometre. l:be learned counsel has also drawn our attention to the Site Plan showing inter se location of these villages and the land acquired there from by the Collector, LAWDA, Srinagar, Jammu and Kashmir in the year 1999, for the public purpose of resettlement of Dal dwellers, which was obtained under the Right to Information Act, 2005 [RT! Act]. In response to the information sought by the appellants under the RT! Act, communication dated 08. I 2.20 I 5 was sent stating that the villages of Chandapora, Bhagichandpora and Pazwalpora are situated adjacent to each other and shared a common border/boundary with each other. The Site Plan showing the location of the villages of Chandapora, Bhagichandpora and Pazwalporas also fortifies the infonnation furnished thatthe above three villages are situated adjacent t? each other and share a common border/boundary with each other.

I 1. In cases of acquisition of land in Bhagichandpora and Pazwalpora in Reference Nos.1/2003, 6/2002 and 7/2002, the Reference Court, after referring to the evidence adduced by the claimants thereon and also after referring to assessment of market rate by Tehsildar at Rs.4,00,000/- per Kanai, held that the land owners are entitled to compensation for the acquired land at the rate ofRs.4,00,000/- per Kanai with solatium (Jabirana) at the rate of 15% apart from interest@ 6% per annum on the enhanced compensation in excess to the sum awarded by the Collector, LAWDA.

12. As noted earlier, village Chandapora is situated adjacent to villages Bhagichandpora and Pazwalpora; while so, there was no reason why the Reference Court differentiated the land of the appellants-land owners of the acquired land in Chandapora land Reference No.15/2002 by awarding lesser compensation ofRs.2,50,000/-. On a perusal of the judgment of the Reference Court in Reference No.15 of2002, it is seen that the witnesses were examined by the appellants to substantiate their case that the market rate of the land in village Chandapora in the year 1998 was about Rs.8,00,000/- per Kanai. Though the Tehsildar of the

area recommended Rs.2,50,000/- per Kanai, the witnesses have stated that the compensation fixed by Tehsildar was not reliable and not based on any material. The appellants have <1lso produced a sale deed by one Mr. Bansilal under which he sold a small strip of land measuring 1360 sq. feet in the vicinity of the acquired land for an amount of Rs.1,00,000/-.

But the Reference Court discarded the evidence of witness Bansilal on the ground that under the sale deed only a small area of land was sold and the sale deed cannot be taken to be a representative character of the entire land.

In our view, the Reference Court was not right in discarding the said sale deed which was supported by oral evidence of the witnesses, to substantiate their clairi1 that the market rate assessed by the Tehsildar at Rs.2,50,000/- was not a fair compensation.

13. When the lands are more or less situated nearby and . when the acquired lands are identical and similar and the acquisition is for the same purpose, it would not be proper to discriminate between the land owners unless there' are strong reasons. In U11io11 of /11dia i•s. B11/ R11m D . <t11dA11otller (2010) 5 SCC 747, this Court held that ifthe purpose of acquisition is same and when the lands are identical and similar though lying in different villages, there is no justification to make any discrimination between the land owners to pay more to some of the land owners and less compensation to others. The same was the view tak.en

in Union of Imlitt vs. l/11rinder P11/ Singh am/ Others. (2005) 12 SCC 564, where this Court held as under:-

"15. We have carefully considered the submissions made on behalf of the respective parties and we see no justification to interfere with the decision of the Division Bench of the Punjab and Haryana High Court which, in our view, took a pragmatic approach in fixing the market value of the lands forming the subject-matter of the acquisition proceedings at a uniform rate. From the sketch plan of the area in question, it appears to us that while the lands in question are situated in five different villages, they can be consolidated into one single unit with little to choose between one stretch of land and another. The entire area is in a stage of development and the different villages are capable of being developed in the same manner as the lands comprised in Kala Ghanu Pur where the market value of the acquired lands was fixed at a uniform rate of Rs 40,000 per acre. The Division Bench of the Punjab and Haryana High Court discarded the belting method of valuation having regard

ALI MOHAMMAD BEIGH AND ORS. v. STATE OF J & K ' [R. BANUMATHl, J .. ]

to the local circumstances and features and no cogent ground has been made out to interfere with the same.

16. In our view, in the absence of any contemporaneous document, the market value of the acquired .lands of Village Kala Ghanu Pur which were acquired at the same time as the lands in the other five villages was correctly taken to be a comparative unit for determination of the market value of the lands comprising the lands forming the subject-matter of the acquisition proceedings under consideration ....... "

14. When the lands are acquired at the. same time and for the same purpose tl1at is for resettlement of Dal dwellers, the lands situated in three different villages namely, Chandapora, Bhagichandpora and Pazwalpora, and since the land is similar land, it would be unfair to discriminate between the land owners and other references and the appellants who are the land owners in Reference No.15 and pay less that is Rs.2,50,000/- per Kanai to the appellants and pay more to other land owners that is Rs.4,00,000/- per Kanai. Impugned judgments of the High Court in CIA No. 211/2009 and Cross Appeal No. 64/2011 are to be set aside by enhancing the compensation to Rs.4,00,000 per Kanai.

As a sequel to this, the order passed in review is also to be set aside.

15. In the result, the impugned judgments are set aside and these appeals are allowed. lt is held that the appellants are at par with other land owners whose lands were acquired in Bhagichandpora and Pazwalpora in other references, and hence they are also entitled to enhanced compensation of Rs.4,00,000/c per Kanai with 15% solatium (Jabirana) and all other statutory benefits. No costs.

Divya Pandey Appeals allowed.