Jammu & Kashmir High Court – Srinagar Bench
Chief Engineer vs Manzoor Ahmad Wani S/O Ghulam Mohammad … on 24 December, 2024
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
...
RFA no.10/2021
Reserved on: 30.08.2024
Pronounced on: 24.12.2024
1. Chief Engineer, Northern Railways Delhi-06
2. Deputy Chief Engineer, Northern Railways Udhampur
.......Appellant(s)
Through: Mr Nazir Ahmad Bhat, Advocate
Versus
1. Manzoor Ahmad Wani S/o Ghulam Mohammad Wani
2. Mohammad Maqbool Ahmad Baba S/o Late Mohd Akram Baba
3. Ghulam Ahmad Bhat S/o Assadullah Bhat
4. Mohammad Shafi Wani S/o Ghulam Mohammad Wani
All residents of Machwa, Baghi-Mehtab Tehsil Chadoora.
......Respondent(s)
Through: Mr S.M.Ayoub, Advocate
CORAM:
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
1. Land of respondents was acquired for construction of Railway Track.
Collector, Land Acquisition Northern Railways made a Reference to
the court of Principal District Judge, Budgam (“Reference Court”
hereinafter). Reference was diarized as File no.25/Reference titled as
Manzoor Ahmad Wani and others v. Collector Land Acquisition and
others. Claimants/respondents’ case had been that compensation
assessed by Collector qua their land and structures had not been
properly assessed as meagre amount had been assessed as
compensation. Respondents prayed for just and fair compensation.
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2. Appellants herein filed their Objections before Reference Court, stating
that respondents herein were not entitled for more compensation than
what had been paid to them.
3. The Reference Court vide Order dated 16th February 2006 framed
following issues:
(1) Whether the petitioners have been paid inadequate
compensation for the land acquired by the respondents and
also for the houses which were owned by the petitioner
and were standing on the acquired land? OPP
(2) In case issue no.1 is proved in affirmative what will be
adequate compensation to be paid to the petitioners? OPP
(3) Whether the respondents had promised the petitioners that
without charging any amount they will be provided
alternate house sites but the house sites were provided
against consideration. If so, what will be its effect on the
rights of the petitioners and whether they are entitled to
any additional compensation? OPP
(4) Relief.
4. By impugned judgement dated 10th November 2018 the Reference
Court found that respondents proved issues 1&2 framed by it and, as
such, held them entitled to the relief and consequently held claimants/
respondents entitled to 25% escalation in the rate of compensation
already worked out by Collector for the land and 10% escalation in the
rates already worked out for the built-up structures. The final amount
awarded in favour of respondents as compensation shall be the original
amount plus the amount as enhanced. The final amount less the amount
of compensation already paid to the respondents shall be payable with
interest @ 10% from the date of final award.
5. The grounds of challenge for quashing judgement impugned taken by
appellants are that Reference Court has failed to appreciate the law laid
down for making enhancement in compensation made by Collector,
Land Acquisition Act. The proper procedure adopted by Collector by
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calling the parties under PNB and subsequently framing committee
comprising of officials of various departments including R&B and
Revenue cannot be questioned unless proper procedure was not
followed. The Collector has strictly adhered to the Land Acquisition
Act as also the law laid down by the Apex Court. There is absolutely
no evidence which would furnish the court below the reason to enhance
the award passed by the Collector. The reasons for enhancing
compensation given by Trial Court does not coincide with mandate of
Section 23 of the Land Acquisition Act, which lays down mechanism
for determination of compensation in respect of acquisition made and
certain valid points of consideration emerged out of the Land
Acquisition Act while considering the relevant section which are:
market value at the time of notification; damages sustained at the time
of taking possession; damages by reasons of separating such land from
the other land; damages to the property movable or immovable or
earnings; interested persons compelled to change residence; or
diminution of profits. All these aspects can be dealt by Reference Court
while award passed by the Collector is challenged but same has to be
done in accordance with law and on the strength of evidence and
procedure as envisaged in Land Acquisition Act for Reference Court
has to be followed which has not been done in the instant case. The
assessment and enhancement have been done by the Reference Court
on the basis of interested parties and not on the basis of any
documentary proof. Further narration of appellants is that final award
was passed and compensation stands already paid in full and final and
received by respondents, as such, question of paying only 80% of
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amount mentioned in impugned judgement is not based on correct facts.The award passed by Collector was legal, well founded and sustainable
in law as the same has been passed after following proper procedure in
accordance with law. The Reference Court is stated to have not looked
into the matter meticulously and has failed to consider technical opinion
rendered by concerned experts and enhanced compensation by 25% on
land and 10% on structures by overriding expert opinion which is not
tenable in law.
6. Heard and considered.
7. Perusal of file reveals that Collector, Land Acquisition Qazigund-
Baramulla Rail Project, Kashmir, Srinagar, vide no.COLL/ QBR/RL/
871-889 dated 30th December 2004, issued Final Award.
8. Dissatisfied with Final Award, claimants – respondents herein made an
application before Collector for making reference under Section 18 of
Land Acquisition Act, stating therein that Collector had undertaken the
process of acquisition of land for construction of Qazigund-Baramulla
Railway Track and for construction of the said Track the Notification
for acquisition of land had been issued. Pursuant to the process of
acquisition, the land along with structures of respondents had come
under acquisition of the said track, which were land measuring 10
Marlas under Survey no.315/190/198/185/66 along with single
storeyed, concrete, slabbed residential house/building fenced with brick
wall; land measuring 10 marlas under survey no.315/190/198/185/66
along with single storeyed house/building; land measuring 10 marlas
under Survey no.315/190/198/185/55 along with single storeyed
residential hosue; land measuring 01 Kanal 04 Marlas under Survey
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no.315/190/198/185/66 along with single storeyed residential house. It
had also been contention of respondents that the compensation assessed
by Collector qua the land and structures had not been properly assessed
and the said assessment was highly meagre and not in accordance with
mandate as laid down by Land Acquisition Act. The compensation was
highly inadequate, improper, keeping in view the site, potential, market
value of the land under acquisition and also the price escalation as
regards labour, building, material which had not been kept inn view
while assessing the rate of building up area. It had also been stated by
respondents in their application that award framed by Collector ran
counter to minutes of meeting/proceedings and various decision taken
by the Apex Committee from time to time framed by the Government
and headed by Divisional Commissioner, Kashmir and that in one of
such meetings, the quorum headed by Divisional Commissioner,
Kashmir, recommended/decided that 10% as regards price escalation
would be paid over and above to the affected persons with respect to
built-up area. It was in the minutes of meeting/proceedings of meeting
headed by Divisional Commissioner, Kashmir, that respondents would
be given alternate site for residential purposes on the basis of as is and
what is acquired. Although respondents were given alternate residential
plots of 60’x 40′ only instead of half kanal of land as promised but an
amount of Rs.1.82 Lacs had been deducted from assessed
compensation of building without any reason and justification and
against the assurances given by Divisional Commissioner, Kashmir.
Earlier four kinds of rates were proposed for: (i) Abi Awal; (ii) Maidani,
Baghi Khushki (iii) Built-up area; and (iv) Banjri Qadeem, but when
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the award had been framed, no rates for built-up area had been specified
which run counter to the proceedings and minutes of the meeting. It was
also respondents’ contention before the Collector that their sold
valuable property/ies for raising construction of residential houses
which came under acquisition and compensation amount had not been
properly assessed keeping in view the standard of structures and
material used. It was made clear by respondents in their application that
amount of compensation assessed by Collector was not acceptable to
respondents and while receiving 80% of amount of compensation
assessed by Collector under protect, respondents were assured that the
review of compensation would be taken and paid to respondents along
with remaining 20% but despite such assurances, neither the award was
read over to respondents nor review of assessment was made. It was
also stated by respondents that they were astonished to hear the refusal
on the part of concerned officers and by breaking of promise,
respondents were forced to suffer.
9. Collector by virtue of letter/order no.COLL/QB/RL/1066-67 dated 10th
March 2005, made reference to the Reference Court, which, when
received reference from Collector, found that original application and
record had not been produced before it and, accordingly, Collector, was
directed to appear in person along with entire original record.
Objections were filed by other-side/appellants in opposition to
respondents’ application before the Reference Court. Taking into
account rival contentions of parties, the Reference Court settled the
issues, as quoted herein before. As a subsequence of which, parties
were directed to lead evidence. The witnesses, namely, Manzoor
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Ahamd Wani S/o Ghulam Mohammad Wani R/o Machuwa Baghi
Mehtab; Ahmad Ganaie S/o Ab. Samad Ganaie R/o Peerbagh,
Hyderpora; Mohammad Latief Sheikh S/o Gh. Mohd. Sheikh R/o
Machuwa; Mohd. Rajab Bhat son-in-law of Shaban Bhat R/o
Machuwa; and Maroof Ahamd Shah S/o Ghulam Ahmad Shah R/o
Bagh-e-Mehtab, were examined.
Manzoor Ahmad Wani, witness, stated that he knew respondents
and that he had personally purchased the land and constructed a
residential house on the said piece of land. They had been residing there
since 2001. In the year 2002, Department of Railways issued a notice
to respondents to acquire their houses as well as land for construction
of railway line. In response thereto, they submitted their objections, in
which they requested Railway authorities to provide compensation as
per market rate; besides land/plots in Machuwa locality or at any other
place where every facility would be available. The place where
respondents were residing was a built-up area with every facility.
Respondents were called for private negotiations, where concerned
department offered to respondents Rs.6,17,000/- with Jabirana, which
they promised, but respondents refused the offer. There were orchards
adjacent to respondents’ land and railways had to acquire said land and
fixed Rs.4.60 Lacs per kanal but owners refused said offer. Then
Railways Department again called landlords and also respondents,
where Railways fixed Rs.8.60 Lacs and included respondents under the
purview of same offer/rate and fixed rate to respondents’ land as
Rs.8.60 lacs as had been fixed in case of owners of orchards. But he
and respondents refused this offer. Respondents demanded Rs.14.08
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Lacs before negotiation committee which was double the amount
already fixed. While matter was pending, the land was forcibly acquired
and houses dismantled by bulldozing them. During cross examination,
the witness produced sale deed before Collector, showing Rs.3.00 Lacs
for half of Kanal way back in January 2000.
Another witness was Ghulam Ahmad Ganai, who stated that he
was posted as Assistant Collector Commissioner, Budgam, Railway
Project. He stated that he knew respondents. According to him,
respondent did not make private negotiation with Government/railway
committee, but received compensation under protest. Final Award was
issued.
Another witness was Maroof Ahmad Shah, who stated that he
knew respondents; they had built their houses there in which they were
residing. Railway Department acquired respondents’ property/land. He
also supported the case of respondents.
Another witness was Mohammad Rajab Bhat, who stated that he
knew respondents and that respondents’ land and property was acquired
by Railways Department for construction of railway track. Respondents
had residential houses. Other witness also supported the case of
respondents.
10.The Reference Court took the issues one by one and deliberated on
them elaborately and comprehensively and thereafter decided them in
favour of respondents.
While deciding issue no.1, the Reference Court found that
respondents had been successful in proving that inadequate amount of
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compensation had been assessed in their favour by Collector both on
account of value of land as well as value of structures built upon.
For deciding second issue viz. quantum of compensation, the
Reference Court made verbose discussion and arrived at a conclusion
that just and reasonable compensation so far as land of respondents was
concerned, it would be an amount of Rs.8.60 Lacs plus 25% per kanal
and the value of the structures would be raised by 10% as compared to
already worked out by the Collector and that final award would carry
15% solatium as already awarded in favour of respondents by Collector.
The Reference Court also mentioned that respondents had
already been given 80% of the award amount which they had received
under protest, as such, final amount of compensation which was worked
out less the amount of compensation which respondents had already
received would carry an interest @ 10% per annum from the date of
final award.
In that view of matter impugned judgement does not call for any
interference.
11.In view of above, the instant appeal is dismissed. Interim direction, if
any, shall stand vacated.
(Vinod Chatterji Koul)
Judge
Srinagar
24.12.2024
Ajaz Ahmad, Secy.
Whether approved for reporting? Yes/No.
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