http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: STATE OF J & K

       Vs.

RESPONDENT: MOHAMMED MATEEN WANI & ORS.

DATE OF JUDGMENT:       23/07/1998

BENCH: G.T. NANAVATI, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.P. KURDUKAR, J.      Leave granted, (2)  This Court  vide its  order dated 21.3.96 directed that LPA No.12/93 pending in the High Court of Jammu & Kashmir be transferred to  this Court  and the same be heard along with S.L.P. (C)  No.1779 of  1994 since  an identical question is involved in  both the  matters arising  out of  the Judgment dated 17.8.93 in Civil Appeal No.38 of 1992 and Civil Appeal No.42 of  1992 passed by the High Court of Jammu and Kashmir at Jammu.  Few facts  leading to the present proceedings may be summarised as under:- (3)  A chunk of land admeasuring 642 kanals and 12 marlas of village Punzgam, Distt. Pulwama belonging to the respondents was acquired  by the  Land Acquisition  Collector Pulwama by invoking Section  17 of  the land Acquisition Act. This land was acquired  at the  instance of  Union of India for public purpose.  The  land  Acquisition  Collector  on  payment  of compensation of  Rs.57,34,621 to the various claimants, took possession of  the land  on December 11, 1986. After service of notice  under Section  9 of  the Land Acquisition Act the claimants filed  their claims before the Collector who after taking  into  account  the  sale  instances  and  the  other material  by   his  award   dated  June   29,  1989  awarded compensation   of    Rs.      1,06,55,150.00/-   for   land; Rs.33,70,781.00/- for  fruit bearing  trees and  Rs.72,600/- for structure  & tubewell.  An amount  of Rs.2114779.60  was awarded as  Jabirana (solatium). Thus the total amount under award came  to Rs.1,62,13,310.65. On this total amount under award came  to Rs.1,62,13,310.65.  On this  total amount  of compensation an  interest was awarded @ 6% for one year from the  date   of  taking  over  the  possession  of  the  land (possession was  taken over  on 11.12.1986)  and  10%  after expiry of  one year. The total amount of interest awarded by the Collector  came to Rs.7,87,632.45. It may be stated that the  Collector   divided  the   acquired  land   into  three categories bearing in mind the nature and quality of land as recorded in  the revenue  records. He  accordingly fixed the market  value  in  respect  of  these  three  categories  at Rs.17,000/-,   Rs.15,000/-    and  Rs.14,000/-    per  kanal

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

respectively. (4)  The claimants  being dissatisfies  with the  amount  of compensation awarded  by the Collector filed petitions under Section  18  of  the  Land  Acquisition  Act  and  sought  a Reference to the civil court for determination of the market value. Before  the Reference  Court the  claimants in  their claim petitions stated that their lands should be valued not less than Rs.25,000/-  and they should be paid not less than Rs.60,000/-  per   kanal  (sic)   and  also  claimed  higher compensation  on  various  other  items.  The  claimants  in support of  their claim  for  enhancement  of  compensation, produced sale  instances and  the report  was  made  by  the Patwari, Tehsildar  and recommendatory letter of a local MLA for  increase  in  the  compensation.  The  Union  of  India produced two  witnesses but,  however  State  of  Jammu  and Kashmir remained ex-parte. (5)  The District Judge, jammu after hearing the parties and on appraisal  of oral  and documentary evidence on record by his Judgment  and decree/  award dated  9.9.92 enhanced  the compensation at  the flat  rate of  Rs. 45,000/-  per  kanal rejecting  the   categorisation  of  land  as  done  by  the Collector and  upheld the  other claims  granted  under  the award.   In    view   of    enhancement   of    compensation proportionately the  amount of  interest and  solatium  also stood  enhanced.  The  District  Judge  awarded  Rs.50,000/- towards cost to the claimants against the appellant. (6)  Being dissatisfied  with the judgment and decree passed by the District Judge, the Union of India filed First Appeal No.42 of 1992 whereas the State of Jammu and Kashmir through Collector filed First Appeal No.38 of 1992 in the High Court of Jammu and Kashmir. Both these appeals were heard together by the then acting Chief Justice of Jammu and Kashmir who by his  common   Judgment  and   decree/award  dated  17.8.1993 dismissed these  appeals.  Aggrieved  by  the  judgment  and decree/award the  Union of  India filed LPA No.14 of 1992 in the High  Court of  Jammu and Kashmir whereas State of Jammu and Kashmir  through Collector filed SLP (C) No.1779 of 1994 in this Court. At the time of the preliminary hearing of the SLP, it was brought to the notice of this Court that the LPA No.12 of  1993 filed by the Union of India in the High Court of Jammu  and Kashmir is pending for final hearing. In these circumstances  this  Court  on  21.3.1996  passed  an  order transferring LPA  No.12 of  1993 to  this Court and directed that the same be heard along with SLP No.1779 of 1994. It is accordingly stood  transferred and  came to  be numbered  as T.C. (Civil)  No. 43/96. This is how both these matters were heard together  and they  are being  disposed by this common judgment. (7)  Mr. S.K. Dholakia, Learned Senior Counsel appearing for the State  of Jammu and Kashmir and Mr. K.N. Shukla. Learned Senior Counsel appearing for the Union of India assailed the judgments of  the courts  below on  various grounds.  It was contended on  behalf of  the appellants  that there  was  no legal evidence on record which would justify any enhancement in respect  of value of the land. It was also contended that the claimants  having been awarded the compensation treating the acquired  land as  an  orchard  land  and  therefore  no separate compensation  could be  paid in  respect  of  fruit bearing trees, tubewells and structures thereof. It was then urged that  the District  Judge as  well as  High Court  has committed as  serious error  in  exercising  the  discretion while awarding  heavy costs  to the  claimants  against  the appellants.  Learned  counsel,  therefore,  urged  that  the Judgment and  decree/award passed  by the District Judge and on appeal  confirmed by  the High Court be set aside and the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

award made by the Collector be restored. (8)  Mr. D.D.  Thakur, Learned  Senior Counsel appearing for the  respondents/claimants   supported  the   judgment   and decree/award passed  by the  courts  below  and  urged  that having regard to the peculiar facts and circumstances of the case and  also having  regard to  the pausity  of the vacant land in  the State,  the  courts  below  were  justified  in enhancing the  compensation of  the  land.  As  regards  the compensation for  fruit bearing trees. Learned counsel urged that it  is the  practice in  the State of Jammu and Kashmir which  is  based  on  the  circulars  issued  by  the  State Government  for  awarding  the  compensation  separately  in respect of  fruit bearing  trees. he  then  urged  that  the acquired land  is a platue which is never affected by floods in the  State. He  further urged  that the  acquired land is situated in a prime locality having a building potentiality. The courts  below in  exercise of  their discretion  awarded costs to  the claimants  and therefore,  this Court would be slow  in  interfering  with  the  discretionary  order.  He, therefore, urged that both these appeals be dismissed. (9)  We were taken through the judgments of the courts below as also  the oral  and documentary  evidence on record. From the material  placed on  record it appears that there was no justification to  divide the acquired land into three groups and the  courts below  were, therefore,  right  in  awarding compensation for  the  acquired  land  treating  it  as  one compact block. (10)  Coming  to  the  challenge  as  regards  the  enhanced compensation for  the land  we find  that the sale instances relied upon  by the  claimants  can  hardly  be  treated  as comparable instances.  The sale  instances relate  to  small parcels of  lands not more than 3 to 4 marlas each. Only one sale instance  was sought  to be  proved  by  the  claimants through the  evidence of  Mohd. Shaban,  who had stated that three marlas  of land in the close viscinity of the acquired land was  sold to  a cooperative  society @  Rs.33,000/- per kanal. Other  sale instances although produced on record but the  same  were  not  proved  by  the  claimants  either  by examining the  vendor or the vendee. As stated earlier these sale instances  are of  a very  smaller area and, therefore, they cannot  be said  to be  comparable  sale  instances  to determine the  market price  of such a big chunk of acquired land. The  other evidence  adduced  by  the    claimants  is consisted of  the oral  testimonies of  lumbardars and local zamindars. Their oral evidence could hardly be accepted as a guide for  determining the market price of the acquired land because they were not experts. The net result, therefore, is that the  evidence of  the claimants  as  regards  the  sale instances cannot  be accepted  as a measure to determine the market price  of the  acquired land. The only evidence which would have  a bearing upon determination of the market price of the  land is  the report  of local  Tehsildar. It  is not disputed that  D.C. of  Distt. Pulwama  had asked  the local tehsildar to  inspect the  acquired land and make a thorough enquiry as  regards the  price prevailing  in  the  locality where acquired  land is  situated. Accordingly  he submitted his report  dated 14.5.1987 which is Annexure 5 annexed with Transfer Case  (C) No.43/96.  This report was relied upon by the land  acquisition Collector and at the trial it is taken on record  without being  objected to  by the State of Jammu and Kashmir  and Union  of India.  No challenge  to the said report was  made by  either of  the  appellants  before  the District Court  as  well  as  before  the  High  Court.  The Tehsildar in  his  capacity  as  a  Government  official  in discharge of  his duties  submitted the  report and  in  his

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

report he  had stated  that the market price of the acquired land would  be Rs.30,000/-  per kanal.  No serious arguments were advanced  before us  on behalf of the Union of India or State of Jammu and Kashmir which could persuade us to reject the said  report. In  these  circumstances  we  are  of  the considered view that the report dated 14.5.1987 furnished by the Tehsildar  was rightly  relied upon  by the courts below for determining  the market  price of the acquired land. The District Judge  and  the  High  Court  while  enhancing  the compensation to  Rs.45,000/- per kanal for the acquired land mainly  relied   upon  the  sale  instances  which  we  have discarded as  not being comparable. The other evidence which found favour  with the District Judge and the High Court was the oral  evidence of local Lambardars, zamindars and one of the claimants.  Their evidence  in our considered view would not furnish  any basis for determining the market value. The courts below in our considered view have committed a serious error of  law in relying  upon the sale instances which were found by  us not comparable while enhancing the market value of acquired  land. In  view of this factual position, we are of the  view that  the respondents/claimants  would  not  be entitled for compensation in respect of their lands for more than Rs.30,000/- per kanal. (11) As regards the compensation in respect of fruit bearing trees and  tubewells the  High Court  had  relied  upon  the Government circular  which allows compensation in respect of fruit  bearing   trees  and   tubewell  separately.  Nothing contrary has  been brought  to our notice and, therefore, we do not think it proper to disturb the said finding. (12) Coming to  the cost  awarded by  the District Judge and the High  Court we  see no justification whatsoever to grant such a  heavy cost  to  the  claimants.  The  discretion  as regards  the  imposition  of  cost  needs  to  be  exercised judicially and  the  orders  regarding  costs  made  by  the District Judge  as well as by the High Court are accordingly quashed and  set aside.  However claimants would be entitled for usual cost prescribed by law proportionately. (13) For the  reasons records  hereinabove the  appeals  are partly allowed.  The judgments  and decrees/awards passed by the courts  below are modified to the extent of valuation of the  lands  acquired.  The  respondents/claimants  would  be entitled  to   receive  compensation  in  respect  of  their acquired land  @ Rs.30,000/-  per kanal  and not Rs.45,000/- per kanal  as awarded by the courts below. It is needless to add that  the executing  court will  finally  determine  the amount of compensation payable to the respondents/ claimants in accordance with law and in terms of this judgment. If any excess  payment   is  found   to  have   been  made  to  the respondents/claimants, the same be returned to the appellant with interest  @ 10%  per annum  from the date of receipt of the amount  till it  is returned.  The appellants as well as the respondents  would be  entitled the cost proportionately in all  courts. The  appeal and  T.C.  No.  43/96  to  stand disposed of accordingly.