Jammu & Kashmir High Court – Srinagar Bench
Union Of India vs State Of J&K And Others on 29 July, 2025
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU & KASHMIR AND LADAKH 2021:JKLHC-SGR:6905
AT SRINAGAR
...
MA no.86/2018
Reserved on: 16.07.2025
Pronounced on: 29.07.2025
Union of India
.......Petitioner(s)
Through: Ms Masooda Jan, Sr. Panel Counsel
Versus
State of J&K and others
......Respondent(s)
Through: Mr S. N. Ratanpuri, Advocate with
Ms. Fiza Khursheed, Advocate for private respondents
Mr. Aijaz Ahmad Chisti, Advocate
CORAM:
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
1. It had been by virtue of order dated 1st November 2021, that this Court
observed that fifty-five (55) respondents had died after the year 2000
during pendency of the appeal (MA no.86/2018) but no steps had been
taken by appellant to bring on record their legal representatives, albeit
sufficient opportunities had been granted to appellant. This Court also
observed that since most of the respondents had died more than six
months back, therefore, appeal abated and consigned it to records and
interim directions vacated. This Court also directed that the amount, if
any, deposited before this Court be remitted to the court of District
Judge, Budgam, who may pass orders for its disbursement in
accordance with rules and as per entitlement after proper verification
by counsel for respondents.
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2. Appellant preferred a Review Petition, being RP no.23/2022, seeking
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review of aforesaid Order dated 1st November 2021. This Court vide
Order dated 8th April 2022 dismissed it.
3. Aggrieved, appellant preferred Special Leave Petition (Civil) Diary
No.37352/2022 before the Supreme Court. On consideration, the
Supreme Court passed following order:
“Delay condoned.
It is the contention on behalf of the petitioner-Union of
India that, in case of death of some of the respondents, the
entire proceedings could not have been dismissed as having
been abated. It is submitted that, at the most, the proceedings
before the High Court could have been dismissed as having
been abated qua only those persons, who died.
There is some substance in what Mr. Vikramjit
Banerjee, learned ASG, has submitted.
It will open for the petitioner to move the High Court
for the aforesaid and as and when such review applications are
filed, the same be considered in accordance with law and o
their own merits. Even otherwise, in case of the persons who
died and qua them the proceedings are abated, it will always be
open for the petitioner to submit an appropriate application/
applications for setting aside abatement by moving appropriate
applications for bringing the legal heirs on record.
The present Special Leave Petition stands disposed of
with the above liberty.”
4. As a consequence of directions of the Supreme Court, appellant moved
an application, being CM no.600/2023, which vide order dated 4th June
2025, came to be allowed and order dated 1 st October 2011 in MA
no.86/2018 and order dated 1st November 2021 came to be recalled qua
surviving respondents. Hence, appeal is being taken up here.
5. The case set up by appellant is that DIG, BSF, Srinagar vide letter
no.OL-10/Land/TC/89/55 dated 9th June 1989 placed an indent for
acquisition of land measuring 2000 kanals (approximately) for
establishment of BSF Subsidiary Training Centre, Humhama, District
Budgam, J&K. The land proposed to be acquired by authorities was
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also identified by them on spot. Tehsildar, Budgam, was directed vide
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letter no.55/M/423/LAC dated 17th June 1989 to furnish the Shajra and
Khasra and other revenue documents of the land identified by the
indenting department. In the first phase, Tehsildar, Budgam, furnished
Shajra and Khasra for land measuring 1739 Kanals 15 Marlas,
comprising of Khasra nos.800 to 1425/808, 810, 811, 813 to 925, 955,
956 and 960 to 963 situated in Estate Humhama Tehsil and District
Budgam. Shajra and Khasra furnished by Tehsildar was got duly
authenticated by Revenue Agency as well as by the representatives of
the indenting department as a token of having selected the proposed
site. It is being also stated by appellant that acquisition papers were
submitted by Collector, Land Acquisition, Budgam, to Divisional
Commissioner, Kashmir, for obtaining no objection certificate from the
Home Department, which was accordingly received by them on 6th
October 1989. Subsequently Notification under Section 4(1) of J&K
Land Acquisition Act 1990 Svt 1990 (1934 A.D.) (for short “Act of
1990”) vide No.56/DC/794-803/ LAC dated 23rd October 1989 was
issued calling upon interested persons to file objections, if any, to
proposed acquisition of land as envisaged under Section 5 of the Act.
Some of the interested persons filed objections in which they demanded
that reasonable rate of compensation might be given to them but they
did not file any objection to proposed acquisition. On expiry of
stipulated period, Notification nos.95/RD/ of 1990 and 96/RD of 1990
were issued. Subsequently, Collector Land Acquisition, Budgam,
issued a Notification dated 28th May 1990, under Section 9 and 9A of
the Act, calling upon interested persons/indenting department to file
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their respective claims/ objections. In response to this notification,
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some of the interested persons filed objections demanding that
compensation for Maidani land and Bagh-i-Khushki land be paid to
them @ more than Rs.1.00 Lakh and Rs.1.50 Lakhs respectively per
Kanal. During spot inspection, there was some difference in area of
certain Khasra numbers. Accordingly, amended Notification was
issued by Revenue Department vide no.Rev.(LAK) 2/90 dated 1 st
March 1991, and missing Khasra numbers were included. Thus, total
area under proposed acquisition was 1798 kanals 12 Marlas instead of
1739 Kanals 15 Marlas. The land was taken over by BSF on 27 th August
1990 from Tehsildar, Budgam. An award was issued by Collector @
Rs.70,000/- plus 15% Jabrana per Kanal and compensation to the tune
of Rs.15.00 Crores was received by Collector. 80% compensation was
paid to landowners in the year 1990 when possession of land was
handed over to indenting department. Remaining 20% compensation
along with interest @ 6% for the first year for 8/90 to 1991 and @ 10%
for remaining year was paid by Collector to interested persons on
receipt from indenting department. It is being stated by appellant that
BSF has paid the amount in full on 15th April 1997 vide Bank Draft
no.826127 dated 12th April 1997, including compensation of trees to
the tune of Rs.3.42 Crores and nothing remained unpaid on the part of
department as per record. It is also averred by appellant that the case
was actually filed by landowners, and the Collector and appellant were
made party to the reference. Since appellant is holding the land and is
an indenting department contested the case before the Reference Court.
As per apportionment statement of the land available in the file with
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final award issued by Collector on 21 st July 1995, the list of 142 land
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owners to whom 1798 Kanals 12 Marlas of land pertains to, has been
given. But some of the land owners were single and some were more
than one. There were 114 reference applications filed by 277
inhabitants of Humhama. In some of the reference applications, the
claimant was single whereas in some applications it comprised even 13
landowners. The reference under Section 18 of the Act was made to
Reference Court on 11th September 2000, which was disposed of on
30th November 2017. The land acquired by appellant was without any
accessibility from all quarters and appellant was forced to purchase
another piece of land which was later used as approach road and for
ingress and egress to the land acquired.
6. The grounds on which impugned Award/order passed by Reference
Court is being challenged are that Reference Court has failed to
appreciate the fact that burden of proof is on claimants as to the fact
that the applications to the Collector were made within timeframe
provided by the Act of 1990 under Section 18 and that there is no
evidence on record to suggest that applications under Section 18 of the
Act were made within mandatory timeframe; that Reference Court has
failed to appreciate the fact that the burden of proof is on the claimant
to prove that what the willing buyer would have offered to the willing
seller and that there is no evidence on record on the contents of the
award relied upon by Reference Court, neither there is any evidence as
to proximity, accessibility and nearness to the road of the land acquired
by the award dated 4th July 1994; that Reference Court has failed to
appreciate the fact that there was another award of 1990, whereby land
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was acquired by CRPF in estate Humhama and the land has proximity
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to the land acquired by appellant and notification for acquiring the same
was issued in the same year, i.e., 1990; that Reference Court has
altogether discarded evidence led by appellant before it under Section
18 of the Act; that Reference Court has failed to appreciate the fact of
accessibility of land acquired and the fact that approach land was later
acquired by appellant; that Reference Court has erred while placing
reliance on the award dated 4th July 1994 which was issued post
notification under Section 4(1) of the Act of 1990 in the present case;
that Reference Court has failed to appreciate relevant factors to
determine market value, nature of land, equality of land, market
conditions prevailing as on date of acquisition. The area of Humhama
was under -developed at the time of acquisition and land acquired by
appellant was inaccessible and it was only after the land was acquired
that the area was developed; that claimants have neither brought any
documentary evidence nor any oral evidence on which Reference Court
could have relied upon in the present case with regard to the genuine
sale of land within vicinity, either adjacent or nearby to the land
acquired to prove enhanced rate of compensation per kanal prevalent at
the time of issuance of notification; that land acquired through award
relied upon by Reference Court while enhancing amount of
compensation in the present case, there is no evidence or record as to
location of land and its approach and accessibility.
7. The first ground of challenge taken by appellant is that there is no
evidence on record to suggest that applications under Section 18 of the
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J&K Land Acquisition Act, Svt 1990, were made within prescribed
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time limit.
8. In the case in hand, provisions of the Act of 1990, when land in question
was acquired and award passed, were in vogue and applicable. Section
3(1) of he Act of 1990 says the expression “land” includes benefits to
arise out of land, and things attached to the earth or permanently
fastened to anything attached to the earth. Insofar as the expression
“person interested” is concerned, it is mentioned in Section 2(d) that
person interested includes all persons claiming an interest in
compensation to be made on account of the acquisition of land under
the Act of 1990 and a person shall be deemed to be interested in land if
he is interested in an easement affecting the land.
9. Whenever land in any locality is needed or is likely to be needed for
any public purpose, Collector is required to notify it by making
publication of preliminary notification under Section 4 of the Act of
1990 through a public notice to be affixed at convenient places in the
said locality and is also to be caused to be known by beat of drum and
through local Panchayats and Patwaries. Notification under Section 4
is also to be notified/published in Government Gazette and in two daily
newspapers having largest circulation in the said locality of which at
least one shall be in the regional language. It is only after issuance of
Notice under Section 4(1) that any officer authorized by Government
and for his servant and workmen to enter upon and survey and take
levels of any land in such locality. However, proviso to Subsection (2)
of Section 4 says that no person shall enter into any building or upon
any enclosed court or garden attached to a dwelling house unless with
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the consent of occupier thereof without previously giving such occupier
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at least ten days’ notice in writing of his intention to do so. Section 5 of
the Act of 1990 provides that the officer so authorized shall at the time
of such entry pay or tender payment for all necessary damages to be
done and in case of any dispute about sufficiency of the amount so paid
or tendered, he shall at once refer the dispute to the Provincial Revenue
authority within thirty days of its being pronounced whereupon the
decision of that officer shall be final. Section 5-A of the Act of 1990
says that any person in any land which has been notified under Section
4 (1) may within fifteen days after such land is notified, object to
acquisition of land or any land in the locality as the case may be. Every
objection shall be made to Collector in writing, who shall give objector
an opportunity of being heard either in person or by pleader or by
person authorized by him and shall after hearing all such objections and
after making such further inquiry, if any, submit the case for decision
of the Government, together with record of proceedings held by him
and report containing his recommendations on the objections. When the
Government would be satisfied after considering the report of
Collector, if any, made under Section 5-A, subsection (2) that any
particular land is needed for public purpose, a declaration shall be made
under Section 6 to that effect. However, proviso to Section 6(1)
envisages that no such declaration shall be made unless compensation
to be awarded for such property is to be paid wholly or partly out of
public revenues or some fund controlled or managed by a local
authority. Subsection (2) of Section 6 provides that declaration shall be
published in official gazette and shall state the district or other territorial
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division in which land is situate, the purpose for which land is needed
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its approximate areas and where a plan shall have been made of the
land, the place where such plan may be inspected. The said declaration
shall be conclusive evidence that land is needed for public purpose.
Whenever any land is declared to be needed for public purpose, in terms
of Section 7 of the Act of 1990 Collector is directed to take order for
acquisition of land. Thereupon, Collector is to mark out land unless
already marked out under Section 4 and he shall also measure it and
make a plan thereof. Thereafter, notice is to be given at convenient
places or near the land to be taken. In the said notice it should be
mentioned that the Government intends to take possession of the land
and that the claims of compensation for all interests in such land be
made before Collector. Such a notice should give particulars of land so
needed and should inform all persons interested to appear personally or
by agent before Collector at a time and place mentioned in the notice.
The persons interested are required to show interest in the land and the
amount and particulars of their claims of compensation for such
interests and their objections, if any, to the measurements made under
section 8. The Collector is required to make such statements in writing
and signed by party or his agent. The Collector is also required to serve
notice to the same effect on occupier, if any, of such land and on all
such persons known or believed to be interested therein or to be entitled
to act for persons so interested, as reside, or have agents authorized to
receive service on their behalf within the revenue district in which the
land is situate. It is not as if a person interested is not residing in such
locality and/or in such district, he is not to be served, but such a person
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is to be served a notice at his last known residence, address of place2021:JKLHC-SGR:6905
of
business in accordance with the Postal rules in force. The name of every
person possessing any interest in the land or any part thereof as co-
proprietor, sub-proprietor, mortgagee, tenant or otherwise and of the
nature of such interest and of the rents and profit, if any, received or
receivable on account thereof for three years next preceding the date, is
to be obtained by the Collector by way of a statement under and in terms
of Section 10 of the Act.
10.Section 11 of the Act of 1990 provides that on the day so fixed or on
any other day to which enquiry has been adjourned, Collector shall
proceed to enquire into objections, if any, which any person interested
has stated pursuant to a notice given under Section 9 to the
measurements made under Section 8 and into the value of land at the
date of publication of notification under Subsection (1) of Section 4 and
into respective interest of persons claiming compensation and which
the Head of Department or his nominee has stated pursuant to a notice
given under Section 9-A and shall tentatively assess compensation
which in his opinion should be allowed for the land. If compensation
amount tentatively assessed exceeds the amount specified by
Government by notification, then Collector is to refer the record of the
case along with statement of tentative assessment of compensation for
approval of Revenue Minister or an officer specially empowered by
him in this behalf. In a case referred by Collector, the proper value of
property is communicated and the value so determined forms basis for
compensation to be allowed for the land, the Collector shall make an
award.
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11.Subsection (7) of Section 11 of the Act of 1990 in clear cut terms
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provides that determination of compensation for any land under
Subsection (6) of section 11 shall not in any way affect the
determination of compensation in respect of other lands in the same
locality or elsewhere in accordance with the provisions of the Act.
12.Section 12 of the Act says that such award shall be filed in the
Collector’s office and shall, except as hereinafter provided, be final and
conclusive evidence, as between the Collector and the persons
interested, whether they have respectively appeared before the
Collector or not, of the true area and the value of the land, and the
apportionment of the compensation among the persons interested.
Subsection (2) of Section 12 mandates that Collector shall give
immediate notice of his award to such of the persons interested as are
not present personally or by their representatives when the award is
made.
13.Section 18 of the Act of 1990, concerning making reference to the
Court, is reproduced hereunder:
“18. Reference to Court. —
(1) Any person interested who has not accepted the award may,
by written application to the Collector require that the matter be
referred by the Collector for the determination of the Court,
whether his objection be to the measurement of the land, the
amount of the compensation, the persons to whom it is payable
or the apportionment of the compensation among the persons
interested.
(2) The application shall state the grounds on which objection to
the award is taken:
Provided that every such application shall be made.–
(a) if the person making it was present or represented
before the Collector at the time when he made his award
within six weeks from the date of the Collector’s award;
(b) in other cases, within six weeks of the receipt of the
notice from the Collector under section 12, sub-section
(2) or within six months from the date of the Collector’s
award, whichever period shall first expire.”
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14.From the provisions of Section 18 of the Act, it is evident that when an
award is made by Collector, if a person interested does not accept the
award, he can make an application but to Collector and, therefore, it is
only the Collector, who, on receipt of application from an interested
person, can make reference to the court concerned (Reference Court).
An interested person cannot on his own approach Reference Court
seeking modification or alteration of award of Collector. It is only the
Collector, who has authority, power and responsibility to make
reference to the Court concerned. The application made should give
grounds on which objection to the award is made. However, proviso (a)
to Subsection (2) of Section 18 of the Act provides that if a person,
making an application, is present or is represented before Collector
when Collector makes an award, such an application is to be made
within six weeks from the date of the Collector’s award. On the
contrary, proviso (b) envisages that in other cases, within six weeks
from the date of receipt of notice from the Collector under Section 12
(2) of the Act, or within six months from the date of the Collector’s
award.
15. It is worthwhile to mention here that proviso (b) to Section 18(2) refers
to Section 12(2) of the Act. Section 12 relates to the Award of Collector
when to be final. Section 12 reads thus:
“12. Award of Collector when to be final. — (1) Such award shall be
filed in the Collector’s office and shall, except as hereinafter provided,
be final and conclusive evidence, as between the Collector and the
persons interested, whether they have respectively appeared before
the Collector or not, of the true area and the value of the land, and the
apportionment of the compensation among the persons interested.
(2) The Collector shall give immediate notice of his award to such of
the persons interested as are not present personally or by their
representatives when the award is made.
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16. Subsection (2) of Section 12 of the Act, thus, says that Collector shall
give immediate notice of his Award to such of the persons interested as
are not present personally or by their representatives when the award is
made. So, it is a duty cast upon Collector that when he issues an Award,
he is required to serve notice upon interested person about issuance of
the award. It is pertinent to mention here that in the event notice is not
served upon interested person about issuance of the Award by the
Collector, then in such situation, time limit as prescribed under
Subsection (2) of Section 18 will not apply inasmuch as serving of
notice upon interested person is imperative so that interested person
would have knowledge about his land having been acquired and award
passed by Collector, and if he is not satisfied with the award, he may
seek reference of the award to the concerned court. Therefore, Section
12(2) mandates that the Collector shall give immediate notice of his
award to persons interested who are not present or represented at the
time the award is made.
17.Section 19 commands Collector to make statement for information of
Reference Court in writing: the situation and extent of the land with
particulars of any trees, buildings or standing crops in the land to be
acquired; the names of the persons whom he has reason to think
interested in such land; the amount awarded for damages and paid or
tendered under sections 5 and 17 or either of them, and the amount of
compensation awarded under Section 11; the amount paid or deposited
under Section 17-A of the Act; if the objection be to the amount of
compensation, the grounds on which the amount of compensation was
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determined; the name of persons out of those interested in such land
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who have accepted the award. Under Section 19(2) with the statement
the Collector shall attach a schedule, giving the particulars of the
notices served upon and shall also attach the statements in writing made
or delivered by the parties interested respectively.
18. Insofar as case in hand is concerned, as said above, the first ground of
challenge on behalf of appellant is that there is no evidence on record
to suggest that applications under Section 18 of the J&K Land
Acquisition Act, Svt 1990, were made within prescribed time limit. It
had been contention of appellant before Reference Court that
applications made by respondents/interested persons were time barred
and that the then Collector had not even marked applications inasmuch
as applications seemed to have been marked by some person other than
the Collector.
19. It is evident from perusal of impugned judgement/order that statement
of all the witnesses has been reproduced by Reference Court in
impugned judgement/order. Reference Court, prior to deliberating upon
merits of the case set up by claimants/respondents before it, took up the
preliminary objection raised by appellant qua reference having not been
made within prescribed period of limitation and that those applications
had been marked by some unknown person and had been backdated in
order to benefit respondents.
20. The Reference Court has rightly and correctly found and said that
mandatory provisions of Section 12(2) of the Act had not been followed
and complied with by Collector, which was otherwise his bounden
responsibility.
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21.Section 12 of the Act has already been reproduced herein-supra.
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Subsection (2) thereof casts duty upon Collector to give immediate
notice of his award to persons interested, who are not present personally
or by their representatives when award is made.
22.The Collector and for that matter appellant herein, in the present case,
have miserably failed to establish serving of notice upon interested
persons/respondents herein as to making of award. This illegality
cannot be cured by any ways or means.
23. It has also been found by Reference Court that even appellant herein
has failed to establish that applications for making reference were not
made by claimants/respondents before Collector within a period of six
weeks. Appellant has not even placed on record any document by which
it could be deduced that applications for making reference were not
made by claimants/respondents within prescribed time.
24.Reference Court perused the record before it and found that maximum
of application had been filed on 26th August 1995 and some of
applications had been filed on 31st August 1995 and few of applications
had ben filed on 2nd September and 5th September 1995 and it had been
up to 7th September 1995 that further applications were received. Thus,
it has been proved beyond any shadow of doubt before Reference Court
that applications had been filed by claimants well within time.
25.There is an allegation that the then Collector, namely, Shri Janak Singh,
had not marked the applications. This contention of appellant has been
attended to by Reference Court. Shri Janak Singh, the then Collector,
Land Acquisition, had been transferred in the year 1995 immediately
after issuance of award. The Reference Court has referred to the
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statement of Shri Janak Singh, deposing therein that he had made only
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tentative award and final award was not issued by him. However, from
the record it has been found by Reference Court that Final Award has
also been issued under the signature of Shri Janak Singh. And, as such,
the Reference Court has rightly said that applications had been made
within time.
26.It is pertinent to mention here that the Supreme Court in Harish Chandra
Raj Singh v. Land Acquisition Officer, AIR 1961 SC 1500, was called
upon to decide whether the expression “date of award” is to be
interpreted in regard to the time when the award is signed by the
Collector or from the date the affected party comes to know about the
same and held as under: –
“Therefore, if the award made by the Collector is in law no more
than an offer made on behalf of the Government to the owner of
the property then the making of the award as properly understood
must involve the communication of the offer to the party
concerned. That is the normal requirement under the contract law
and its applicability to cases of award made under the Act cannot
be reasonably excluded. Thus considered the date of the award
cannot be determined solely by reference to the time when the
award is signed by the Collector or delivered by him in his office;
it must involve the consideration of the question as to when it
was known to the party concerned either actually or
constructively. If that be the true position then the literal and
mechanical construction of the words the date of the award
occurring in the relevant section would not be appropriate. There
is yet another point which leads to the same conclusion.
If the award is treated as an administrative decision taken by
the Collector in the matter of the valuation of the property sought
to be acquired it is clear that the said decision ultimately affects
the rights of the owner of the property and in that sense, like all
decisions which affect persons, it is essentially fair and just that
the said decision should be communicated to the said party. The
knowledge of the party affected by such a decision, either actual
or constructive, is an essential element which must be satisfied
before the decision can be brought into force.
Thus considered the making of the award cannot consist
merely in the physical act of writing the award or signing it or
even filing it in the Office of the Collector; it must involve the
communication of the said award to the party concerned either
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presence of the party whose rights are affected by it can be said2021:JKLHC-SGR:6905
to be made when pronounced. If the date for the pronouncement
of the award is communicated to the party and it is accordingly
pronounced on the date previously announced the award is said
to be communicated to the said party even if the said party is not
actually present on the date of its pronouncement.
Similarly if without notice of the date of its pronouncement
an award is pronounced and a party is not present the award can
be said to be made when it is communicated to the party later.
The knowledge of the party affected by the award, either actual
or constructive, being an essential requirement of fair play and
natural justice the expression the date of the award used in the
proviso must mean the date when the award is either
communicated to the party or is known by him either actually or
constructively. In our opinion, therefore, it would be
unreasonable to construe the words from the date of the
Collector’s award used in the proviso to Section 18 in a literal or
mechanical way.”
27. It has been observed by the Supreme Court that award made by
Collector in law is no more than an offer made on behalf of the
Government to owner of property, so making of award as properly
understood must involve communication of offer to the party
concerned, which is the normal requirement under contract law and its
applicability to cases of award made under the Act cannot be reasonably
excluded. Therefore, the “date of the award” cannot be determined
solely by reference to the time when award is signed by Collector or
delivered by him in his office. It must involve consideration of question
as to when it was known to party concerned either actually or
constructively. If that be the true position, then literal and mechanical
construction of the words the “date of the award” occurring in the
relevant section would not be appropriate. It has also been said by the
Supreme Court that if an award is treated as an administrative decision
taken by Collector in the matter of valuation of property sought to be
acquired, it is clear that the said decision ultimately affects rights of
owner of property and in that event, like all decisions which affect
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be
communicated to the said party. The knowledge of the party affected
by such a decision, either actual or constructive, is an essential element
which must be satisfied before the decision can be brought into force.
In the present case it is not coming forth as to whether interested
persons/respondents had been informed about issuance of award or not.
Even appellant has not been able to establish when the award was
communicated to respondents.
28.Making of award cannot consist merely in physical act of writing award
or signing it or even filing it in the office of Collector. It must involve
its communication to interested party either actually or constructively.
If award is pronounced in presence of the party whose rights are
affected by it, can be said to be made when pronounced. If the date for
pronouncement of award is communicated to the party and it is
accordingly pronounced on the date previously announced, the award
is said to be communicated to the affected party even if the said party
is not actually present on the date of its pronouncement.
In the case in hand, no such exercise has been undertaken and/or
comes to fore from the record to show or suggest that such exercise has
been undertaken by Collector to inform and intimate interested persons/
respondents as regards issuance of award.
29.If without notice of the date of its pronouncement an award is
pronounced and a party is not present the award can be said to be made
when it is communicated to the party later. The knowledge of the party
affected by the award, either actual or constructive, being an essential
requirement of fair play and natural justice. The expression the “date of
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the award” used in the proviso must mean the date when the award2021:JKLHC-SGR:6905
is
either communicated to the party or is known by him either actually or
constructively. Thus, it is arbitrary, perverse and irrational to say that
interested persons have knowledge from the date the Collector issued
award.
Insofar as the instant is concerned, appellant and/or Collector has
failed to establish that interested persons/respondents had knowledge
of award on the date the Collector issued it and that all the interested
persons/respondents were present when award was issued by Collector
and/or they were duly informed and intimated about issuance of award.
Therefore, the words from the date of Collector’s award used in proviso
to Subsection (2) of Section 18 of the Act is to be meant as the date
when the award is either communicated to the party or is known by him
either actually or constructively. Resultantly, in the case in hand,
respondents had been well within time in making applications and as a
corollary thereof, applications had been referred to Reference Court in
accordance with provisions of Section 18 or for that matter any of the
provisions of the Act.
30.The case of Vijay Mahadeorao Kubade v. State Of Maharashtra through
the Collector, AIR 2018 SC 356 : 2018 (8) SCC 266, adjudicated by
the Supreme Court of India, marks a significant and binding precedent
in the realm of land acquisition and compensation laws. The said case
delves into procedural intricacies surrounding issuance of notice/s
under the Land Acquisition Act, particularly scrutinizing adequacy of
notification in the context of compensation awards. The crux of the
dispute revolved around validity of notice served to landowners/
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interested persons concerning compensation award for acquired land,
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and whether landowners/interested persons’ subsequent reference for
enhancement of compensation was time limit compliant. In the said
case, appellant challenged judgement of the High Court of Bombay,
which had dismissed reference for enhancing compensation on the
grounds of limitation. The Supreme Court examined whether appellant
had received an effective notice of the award as mandated by Section
12(2) of the Land Acquisition Act. The key issue was whether absence
of certified copy of the award in the initial notice rendered the
compensation award notice ineffective, thereby not triggering the
limitation period.
If the present case is looked into stricto sensu in the context of
law laid down by the Supreme Court, as aforesaid, there is no denial to
the fact that respondents had not been communicated the award
muhcless communicating certified copy of award.
31.The Supreme Court, relying on the precedent set by Premji Nathu v.
State of Gujarat AIR 2012 SC 1624 : 2012 (5) SCC 250 , has observed
that effective notice requires recipient to have access to details of award
at the time of issuance. In that case, since appellant did not receive
certified copy of award along with the notice, the claim that limitation
period had expired was said to be an unfounded ground. Consequently,
the Supreme Court set-aside the High Court’s order and remanded the
case for fresh consideration on the merits, including the quantum of
compensation. The judgment extensively referenced the seminal case
of Premji Nath (supra). The Supreme Court elucidated the requirements
for an effective notice under Section 12(2) of the Land Acquisition Act.
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The Supreme Court emphasized that for a notice to be effective, it must
2021:JKLHC-SGR:6905
convey all pertinent details of the award, enabling the affected party to
exercise their rights within the stipulated limitation period. This
precedent was pivotal in shaping the Supreme Court’s approach in the
present case, reinforcing the necessity of comprehensive and clear
communication of compensation awards to landowners.
32.The legal reasoning of the Supreme Courts hinged on the principles of
natural justice and procedural fairness. The Supreme Court underscored
that an effective notice is not merely a formalistic requirement but a
substantive guarantee that interested/affected parties are adequately
informed and can exercise their legal rights without prejudice.
By determining that interested/affected party did not receive
certified copy of the award alongside the notice, the Supreme Court
concluded that requisite information was not available to affected/
interested party at the time the notice was served. This lack of essential
information means that affected party could not have been expected to
act within the limitation period, thereby nullifying the argument that the
reference was time-barred. The said judgment of the Supreme Court
has, thus, far-reaching implications for implementation of land
acquisition laws in India. It mandates governmental authorities to
ensure that all notices pertaining to compensation awards are
comprehensive and include all relevant documents, thereby
safeguarding rights of landowners. Thus, the Supreme Court has set a
precedence for upholding procedural safeguards, ensuring that
administrative actions do not infringe upon the legal rights of
individuals. It also emerges from aforesaid judgement of the Supreme
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Court that effective notice refers to formal communication of legal
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actions or decisions to affected parties in a manner which ensures that
they are fully apprised of their rights and any action they need to take.
Under the Land Acquisition Act, an effective notice must include all
essential details of the compensation award, allowing the landowner to
respond or appeal within the legal timeframe.
The case in hand is also squarely covered by the aforesaid
judgements of the Supreme Court and vanishes the case set up and
grounds taken by appellant in the instant appeal and resultantly
impugned judgement/award of Refence Court does not warrant or call
for any interference.
33.Many other grounds for challenge have been taken in the instant appeal
and reiterated by learned counsel for appellant, yet those grounds merge
in one ground, that is, market value/price/rate of land acquired has not
been properly fixed by Reference Court.
34.When a reference is made by Collector to Reference Court, notice is to
be served upon applicant and to all persons interested. Every
proceeding is to take place in open court. Section 23 relates to matters
to be considered in determining compensation, which reads as under:
“23. Matters to be considered in determining compensation. —
(1) 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 by 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;
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fourthly, the damage (if any) sustained by the person2021:JKLHC-SGR:6905
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
earnings;
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.”
35. Section 23 (1) provides that in determining amount of compensation to
be awarded for land acquired under the Act of 1990, the Reference
Court is to take into consideration: (i) market value of land at the date
of publication of the declaration relating thereto under Section 6; (ii)
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
Collector’s taking possession thereof; (iii) damage, if any, sustained by
person interested at the time of Collector’s taking possession of land by
reason of severing such land from his other land; (iv) damage (if any)
sustained by the person interested, at the time of Collector’s taking
possession of land, by reason of acquisition injuriously affecting his
other property movable or immovable in any other manner, or his
earnings; (v) if, in consequence of acquisition of land by Collector, the
person interested is compelled to change his residence or place of
business, reasonable expenses, if any, incidental to such change; and
(vi) damage, if any, bona fide resulting from diminution of profits of
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the land between the time of publication of declaration, under Section
2021:JKLHC-SGR:6905
6 and the time of Collector’s taking possession of the land.
36. Market value of the land under acquisition is price which the property
may fetch in open market if sold by a willing seller unaffected by
special needs of a particular purchase. Where definite material is not
forthcoming either in the shape of sales of similar lands in
neighbourhood at or about the date of declaration or otherwise, other
sale instances as well as other evidences have to be considered. It has
been said by the Supreme Court in Shaji Kuriakose and another v.
Indian Oil Corporation Limited and others, AIR 2001 SC 3441, that
amount of compensation cannot be ascertained with mathematical
accuracy. A comparable instance has to be identified having regard to
proximity from time angle as well as proximity from situation angle.
For determining market value of land under acquisition, suitable
adjustment has to be made having regard to various positive and
negative factors qua land under acquisition by placing two in
juxtaposition.
37. Section 15 of the Act of 1990 provides that in determining amount of
compensation, Collector shall be guided by provisions contained in
Section 23 and 24. Section 23 of the Act of 1990 contains matters to be
considered in determining amount of compensation whereas Section 23
contains matters to be neglected in determining compensation.
38.The Supreme Court vide judgement dated 27th March 2025, in a case
titled as Civil Appeal no.3998 of 2024 titled as Madhya Pradesh Road
Development Corporation v. Vincent Daniel and others reported as
2025 INSC 408 : 2025 Live Law (SC) 364 : 2025 SCC Online SC 666,
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MA no.86/2018
has said that to compute compensation under Acquisition Act, 1894,
2021:JKLHC-SGR:6905
the general threshold applied by the courts is to ascertain the market
value of the acquired land. This also includes its potential value with
reference to the conditions prevailing at the time of making a
declaration under Section 4 (1) of the Acquisition Act, 1894. The
International Valuation Standards Council states that the market value
of land represents estimated amount that a willing buyer would pay
prudently to a willing seller in an arm’s length transaction, without
compulsion, on a particular valuation date. The Supreme Court has also
observed that this estimate includes characteristics unique to the land
that would inflate or deflate its price but excludes special concessions
or considerations granted by anyone associated with the sale. The buyer
refers to one who is motivated but is neither overeager nor determined
to buy irrespective of the price quoted. Similarly, he is neither over-
eager nor forced. Both parties are assumed to be conducting transaction
in keeping with market realities, rather than terms that are hypothetical
or cannot be anticipated to exist.
39.The Supreme Court in Smt. Tribeni Devi and others v. Collector of
Ranchi and Vice Versa, (1972) 1 SCC 480 , recognized several methods
for ascertaining market value of land, such as: (i) opinion of experts;
(ii) price paid in bona fide transaction for purchase of adjacent lands
possessing similar advantages and disadvantages; and (iii)
capitalization of actual and immediate prospective annual profits from
the land. However, this exercise must take into consideration subjective
features and special circumstances. Land values vary based on their
qualitative and quantitative attributes, location, proximity to developed
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MA no.86/2018
land, potential etc. The lack of reliable local sale data, coupled with
2021:JKLHC-SGR:6905
variable land conditions, undermines accurate assessment.
Nevertheless, framing objective standards can help arrive at an
empirical value that most closely reflects the true market price.
40.The theory of deduction, though not statutorily prescribed, has been
applied by courts to compute the compensation payable under the
Acquisition Act, 1894 primarily for two reasons. First, consideration of
the potential value of the land can result in arriving at an enhanced or
increased value, especially for undeveloped lands. Secondly, in
acquisitions of large underdeveloped lands, a significant portion of the
land would have to be utilised for making minimum amenities like
roads, drains, sewers, water and electrical lines available. Thus, making
the land usable would involve a substantial expense for the buyer in the
form of development charges.
41.The theory of deduction was applied in the case of Tribeni Devi (supra).
In Jag Mahender and Another v. State of Haryana and others, (2017)
SCC Online SC 2160 also, the theory of deduction was applied to arrive
at a fair and reasonable market value. This judgment also states that the
prospective prices of smaller developed plots cannot be adopted to
determine the value of underdeveloped tracts of land. Further, the
peculiarities of the land – whether the same is plain or uneven, the soil
is soft or hard, whether the land is situated on a hill or is low-lying, etc.
are all relevant factors. A given parcel of land has multiple dimensions
– social, economic, territorial, and environmental. Accordingly, the
market value must be computed through a valuation model based on
attribute pricing rather than fixed prices. In some cases, sale deeds for
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MA no.86/2018
adjoining lands can be an ‘exemplar’, i.e., lands that are similarly
2021:JKLHC-SGR:6905
placed and have comparable attributes. However, computation of the
market value may require calibration, taking into consideration the
advantages and disadvantages of the acquired land relative to the
exemplars. The exemplars must be carefully chosen, especially as lands
are often heuristically grouped in localities at the same rate due to a
lack of specific data.
42.Perusal of impugned award reveals that two issues had been framed by
Reference Court, which are: whether petitioners (interested persons)
have not been paid adequate compensation by respondents; and if issue
no.1 is replied in affirmative what is adequate compensation to which
petitioners (interested person) are entitled to.
43.Perusal of record as also impugned award reveals that claimants/
respondents have produced certified copies of sale deeds, certified
copies of awards as also certified copy of judgement dated 16 th May
2002, passed by Reference Court in a land acquisition matter/reference.
These certified copies cannot be said have no legal sanctity as has been
claimed by appellant. Such a claim has rightly been overruled by
Reference Court. After this, the Reference Court went through all three
sale deeds, produced by claimants/respondents and discussed them in
detail. In one sale deed registered on 3 rd August 1989, sale
consideration amount had been shown as Rs.1.00 Lakh per Kanal. In
second sale deed, executed on 11th February 1991, sale consideration
has been shown as Rs.2.00 Lakhs per Kanal. In third sale deed
registered on 21st February 1991, sale consideration had been
mentioned as Rs.2.00 Lakhs per Kanal. Nevertheless, the Reference
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MA no.86/2018
Court observed that these sale deeds could not be considered2021:JKLHC-SGR:6905
as
sufficient evidence to determine fair and adequate compensation and
therefore, the said sale instances brought on record by claimants/
respondents were declared by Reference Court not true determinative
factors and excluded them from consideration.
44.After excluding sale deeds produced by respondents/claimants from the
zone of consideration for computation of compensation, the Reference
Court took up and made mention of Awards passed in other acquisition
cases in the estate of Humhama. In one case, Rs.1.30 Lakh per Kanal
had been given and, in another case, Rs.2.50 Lakhs per Kanal had been
awarded by Collector. And in third case, Reference Court had enhanced
compensation to Rs.3.00 Lakhs per Kanal. The Reference Court has
found that indenting department in its evidence has not been able to
counter evidence brought on record by claimants/respondents. It has
also been found by Reference Court that the land acquired was being
used as orchards. It is worthwhile to mention here that Reference Court
has rightly and correctly made reference to an acquisition matter where
land was acquired in the year 1988 and compensation @ Rs.2.50 Lakhs
per kanal was assessed. It may not be out of place to mention here that
land in question was just a stone’s throw from International Airport,
Srinagar. However, the Reference Court, at the end, has been
conservative in computing and granting only Rs.1.10 Lacs per Kanal as
compensation as against the award issued by Collector @ Rs.70,000/-
per kanal, which had been an injustice towards claimants/respondents
on the part of Collector. At this stage, it would not be appropriate to
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change, modify or alter the judgement by raising little above 2021:JKLHC-SGR:6905
the
compensation awarded by the Reference Court.
45.For the reasons discussed above, the instant appeal is dismissed.
46.Registry to transmit the amount, if any, deposited by appellant along
with interest to Reference Court for release in favour of claimants/
respondents after proper verification by their counsel.
(Vinod Chatterji Koul)
Judge
Srinagar
29.07.2025
Ajaz Ahmad, Secretary
Whether approved for reporting? Yes/No.
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