HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU MA No. 172/2004 Reserved on : 03.01.2025 Pronounced on : 06.06.2025 1.Pawan Kumar, S/o Late Sh Tilak Raj R/o Ward No.10 Rajouri Tehsil & District Rajouri. 2. Naseer Hussain 3. Mohd Shabir both Sons Late Ghulam Hussain 4. Mohd Younis 5. Mohd Safeer 6. Mohd Shafiq Sons of Lafe Sh. Tufail Hussain All R/O Gurdan Pain Tehsil & District Rajouri. …….Petitioner/Appellant(s) Through:- Mr. H. A. Siddiqui, Advocate V/s 1.Union Of India Through Defence Estate Officer, Northem Command, C/o 56 APO. 2. Deputy Commissioner (Collector) Rajouri. …..Respondent(s) Through:- Mr. R.S. Jamwal, CGSC CORAM :HON’BLE MRS. JUSTICE SINDHU SHARMA, JUDGE JUDGMENT 1. The present appeal is directed against the judgment and award dated 14.06.2003 passed by the District Judge, Rajouri (hereinafter to be referred as the ‘learned Arbitrator’) acting as Arbitrator under the provisions of the Jammu and Kashmir Requisitioning and 2 MA No. 172 of 2004 Acquisition of Immovable Property Act, 1968 (hereinafter referred to as ‘RAIP Act,1968’). By the said award, the learned Arbitrator awarded compensation to the petitioners-interested persons for their acquired land at the rate of ₹65,000/- per kanal. The petitioners, however, seek enhancement of the awarded compensation to ₹2,00,000/- per kanal, being a market rate. 2. During the pendency of the present appeal, appellants Nos. 2 and 3 passed away. Pursuant to the order dated 01.08.2023, their legal heirs have been substituted as appellants in this appeal. 3. The facts in detail are that appellant No. 1 claims to be an occupancy tenant, while appellants 2 and 3 are the owners of agricultural land comprising Khasra Nos. 281 (59 Kanals), 281/1 (18 Marlas), 282 (6 Kanals 10 Marlas), 283 (8 Marlas), and 285 (95 Kanals) located in Village Gurdan Pain, Tehsil and District Rajouri. The said land was requisitioned by the Army on 01.06.1950 and remained under requisition until 19.04.1986. Under the RAIP Act, 1968, the respondents decided to permanently acquire the land. Respondent No. 1 sought a No Objection Certificate (NOC) from the State Government, which was granted via Home Department Letter No. Cl-26/85 dated 25.03.1986. The Ministry of Defence then sanctioned the acquisition through Letter No. A/51000/Q31/North/103/6978/D (Lands) dated 04.11.1986. 4. Upon receiving the No Objection Certificate from the State Government, a show cause notice was issued on 03.04.1986 under 3 MA No. 172 of 2004 the RAIP Act, 1968, regarding the acquisition of the appellants’ land. The appellants objected and demanded ₹2.60 lakhs per kanal as compensation. The Collector forwarded the case to the Home Department, which issued a Notification on 22.04.1986. The final award, passed on 25.02.1987, fixed the land value at ₹11,000 per kanal. Dissatisfied, Tilak Raj, an occupancy tenant, filed a writ petition being OWP No. 74/1987 seeking appointment of an Arbitrator. This Court directed the respondent-State to appoint an arbitrator for adjudicating upon the disputes arising between the parties and vide SRO 450 dated 12.10.1999, the District and Sessions Judge, Rajouri, was appointed as an ex-officio Arbitrator. After hearing the case, the learned Arbitrator, on 14.06.2003, fixed the compensation at ₹65,000 per kanal. 5. After passing of the impugned award dated 14.06.2003, appellants filed writ petition being OWP No. 1073/2003 for seeking a direction to the respondents to make the payment of the awarded amount as per the award of learned arbitrator. In an application filed in this writ petition for granting of interim relief, by order dated 2.12.2003 the respondents were directed to deposit the awarded amount with the Registry of this Court, despite direction awarded amount was not deposited by the respondents. By interim order dated28.10.2004, the respondents were again directed to deposit the amount along with interest at the rate of 6% p.a with the Registry of this Court. Pursuant to the said direction, the respondents deposited an amount of ₹.69, 89,760/-with the Registry. 4 MA No. 172 of 2004 6. In the said petition, this Court, while relying upon a communication dated 03.09.2004 from the Collector to the Defence Estate Officer, observed that 80% of the land compensation was payable to occupancy tenant Tilak Raj, and the remaining 20% to petitioners No. 2 and 3 (appellants herein). As there was no dispute over Tilak Raj’s entitlement, the Court ordered the release of his share. However, the respondents challenged the entitlement of petitioners No. 2 and 3, arguing they had accepted compensation without protest by signing Form-K, thereby forfeiting their right to seek enhancement. However, this Court held that since the respondents did not challenge the maintainability of claims by petitioners No. 2 and 3 before the Arbitrator or appeal the award, it has attained finality. The Court found that the said petitioners, being 20% landowners, are entitled to enhanced compensation as per the award and Collector’s communication dated 03.09.2004. The writ petition was allowed, and by order dated 14.11.2005, the respondents were directed to pay the compensation with interest @ 6% p.a. to petitioner Nos. 2 & 3 from the date of award within a period of four months. 7. The Union of India challenged the order dated 14.11.2005 in LPAOW No.12/2006, whereby they were directed to pay compensation along with interest @ 6% p.a to respondent Nos. 2 & 3 (appellants). It was argued that since respondent Nos. 2 & 3 had executed Form 'K' Agreement under the RAIP Act, 1968, they had no 5 MA No. 172 of 2004 right to seek arbitration, so the Arbitrator’s award couldn’t be enforced or enhanced compensation granted. 8. The Division Bench held that since the appellants did not appeal the Arbitrator’s award dated 14.06.2003, they cannot now dispute the entitlement of respondent Nos. 2 & 3 to the compensation assessed. The statutory reference under the J&K Requisitioning and Acquisition of Immovable Property Act, 1968, and the claims allowed by the Arbitrator were not challenged. However, the Bench noted that unlike the State Land Acquisition Act, the J&K Act does not provide for awarding interest on compensation. Therefore, while the compensation entitlement was upheld, the direction to pay 6% interest was set aside by the order dated 27.04.2006. 9. The order dated 27.04.2006 passed by the Division Bench was challenged before the Supreme Court in Civil Appeal No. 3295/2008. The Supreme Court upheld the order, but confirmed that the 6% per annum interest awarded by the Single Judge was justified and restored it. 10. The appellants are aggrieved of the award passed by the Arbitrator seek enhancement of the compensation on the ground that the compensation has been awarded overlooking the evidence on record. The learned Arbitrator, it is submitted, failed to consider oral evidence proving the land's 1986 market value at ₹2,00,000/- per kanal. The evidence regarding that the land is touching Bus 6 MA No. 172 of 2004 Stand Rajouri and adjacent to Town and Municipal area has not been considered. The evidence with regard to location nearness of land with Municipal Committee Rajouri, future prospects of the land to be utilized for commercial purpose, has also not been considered. The learned Arbitrator has placed reliance on an earlier award without making any reference to the evidence on record. The learned Arbitrator has relied upon an award in respect of land acquired for village Gurdan Pain, which was not relevant for conclusive determination of market value. The appellants’ land had more potential value. 11. Despite this, the Arbitrator disregarded this without proper reasoning. Additionally, the appellants were deprived of fair compensation from 19.04.1986, including interest and solatium at 15% per annum, placing reliance on a judgment titled Union of India & ors. vs. Dhanwanti Devi & ors. wherein it has been observed that in so far as village Goverdhan Pain (Gurdhan Pain) is concerned, it has come on record that the property in question is almost ½ kilometer away from the main Market of Rajouri Town. ½ K.M. roughly comes to 00-700 human steps. In other words, even the property of the petitioners situated in village Governdhan Pain (Gurdhan Pain), is within the short walking distance of main market of Rajouri Town. Part of this village is also withing the Notified Area limits. The Government of J&K vide notification SRO no. 398 dated 11.12.1962, constituted Rajouri as notified area under Municipal Act. The notified area of Rajouri Town was described in the schedule 7 MA No. 172 of 2004 to the said S.R.O. In the schedule it has been mentioned that towards north village Goverdhan Pain forms a part of Rajouri Town. Since village Goverdhan Pain is also part of Rajouri Town, just as village Rampur and Talwal, there is no reason as to why the price of land in the said village is not held to be the same as is in village Rampur and Talwal. 12. The learned counsel for the respondents submits that it was established that the assessment was made on the prevailing market value and no fault on that account could be attributed. It is further submitted that the possession of the land was with them since 1951 and it is being used for the same purpose, therefore, question of development is irrelevant. 13. During the pendency of the instant appeal, appellants filed an application being CM No. 5933/2023 seeking permission to amend the memo of appeal in view of the legal development subsequent to the filing of the appeal on the ground that after the reorganization of Jammu & Kashmir into a Union Territory, the J&K Requisitioning and Acquisition of Immovable Property Act, 1968 was repealed. The Central Act of 1952 now applies to J&K from 18.03.2020. They claimed a statutory and constitutional right to fair compensation. Since the appeal is ongoing and considered a continuation of the original proceedings, they prayed to consider the legal changes and grant them the benefits. They also cited Section 108 of the 2013 Land Acquisition Act, which allows landowners to choose the law that provides better compensation and rehabilitation. 8 MA No. 172 of 2004 14. The respondents have filed objections to the application, stating that the appellants filed the present appeal in 2004, under the provisions of the RAIP Act, 1968. They argue that all proceedings, including the award/assessment of the land acquired by the Union of India, were completed in 1987 under that Act. They claim that the Right to Fair Compensation and Resettlement Act, 2013 does not apply to this case. 15. The process for acquisition of land under the provisions of Jammu and Kashmir Requisition and Acquisition of Immoveable Property Act, 1968 was started on 03.04.1986. The final award was issued by the collector on 25.02.1987. the petitioner filed a petition i.e., OWP No. 1073/2003 for satisfaction of award, and have in terms of the orders passed by this Court accepted the entire amount. Now in this enhancement appeal after accepting the compensation amount cannot amend the appeal. The application is misconceived and accordingly, dismissed. 16. Heard learned counsel for the parties and perused the material on record as well as record of the learned Arbitrator. 17. Perusal of the learned Arbitrator's record shows that 470 kanals and 19 marlas of land in village Gurdhan Pain, Tehsil Rajouri, were acquired under the RAIP Act, 1968 for use by the Indian Army, as per Government Notification dated 22.04.1986. The Army had already been in possession of this land since 01.06.1950 under a requisition order dated 24.06.1951. The Collector fixed 9 MA No. 172 of 2004 compensation at ₹11,000 per kanal for private land and ₹5,500 per kanal for State land. This includes the land under appeal, covering Khasra Numbers 281, 281/1, 282, 283, and 285. 18. On 10.10.2000, the appellants submitted their claim before the learned Arbitrator. The respondents first filed a joint written statement on 24.10.2000. Later, the Defence Estate Officer filed separate objections on 28.11.2000. The learned Arbitrator then framed the following issues for determination:- 1) Whether compensation granted by the competent authority (Dy. Commissioner) Rajouri to the petitioners in respect of their land acquired by the respondents is inadequate? OPP. 2) If issue No.1 is proved in the affirmative, what is proper amount of compensation? OPP 3) Whether petitioners are entitled to solatium Jabrana, if so, to what extent? OPP. 4) Whether the petitioners are entitled to any interest on the amount of compensation, if so, to what extent and from which date? OPP. 5) Relief. 19. The appellants claimed before the learned Arbitrator that their land, acquired in 1986, was located next to the General Bus Stand in Rajouri and had high commercial value. They argued that the market rate at that time was at least ₹2,00,000 per kanal. They also stated that due to a ban on land sales under the Jammu and Kashmir Agrarian Reforms Act, 1978, and army occupation, no land sales happened in the area, making the Collector’s average price estimate unrealistic. They claimed the land could have been used for commercial buildings or housing if not acquired. To support their 10 MA No. 172 of 2004 case, they presented 16 witnesses and also examined the Collector, Sat Pal, and Patwari Zulfkar Ali. 20. The relevant witnesses produced by the appellants have cited certain instances of market rates of various lands sold or acquired in the area. • PW Haji Mohd. Shafi's stated that his land in village Salani which acquired by Govt. for construction of bridge. The Collector awarded Rs. 21,500/- per kanal in the year 1994 which was enhanced to Rs. 75000/- by DC Rajouri which was upheld then they saying the market value of land is not less than 1 kanal. • PWs Vishwa Nath and Gian Chand mentioned a 2000 transaction for a small plot, which was dismissed because it occurred much later and small plots often sell at higher rate • PW Mohd. Shabir referred to land acquired in 1993 for a stadium, with compensation later increased by court. This was also found irrelevant due to the time gap. • Appellant No. 2 – Late Gulam Hussain: Asserted that the acquired land lies adjacent to the road and is suitable for commercial and residential construction. Claimed that in 1985- 86, the market value was ₹1,00,000 per kanal. Referred to nearby land of Dhanwanti, situated 2 km away, which fetched ₹40,000 per kanal. Stated that the acquired land lies within N.A.C. Rajouri and presently commands a market value of ₹50,000 per marlas, as the rates have been increased after 1985-86. • Appellant No. 3 – Late Tufail Hussain: Claimed ownership of the acquired land with Tilak Raj and Pawan Kumar as occupancy tenants. Stated that the land was cultivable and yielded two crops annually prior to 1947. Argued that in the absence of acquisition, the land would have commanded a market value between ₹50,000 to ₹1,50,000 per marla. Referred to compensation paid for adjoining lands ranging between ₹40,000 to ₹70,000 per kanal and asserted the acquired land’s value at the time of acquisition to be ₹1 to ₹1.5 lakh per kanal. • PW Fazil Hussain (Former Patwari and Girdawar: Deposed that the land is adjacent to Rajouri bus stand and if not occupied by the Army, was suitable for commercial development. Estimated the market value of a 12’x15’ shop site on the land to be ₹10 lakh. • Collector Sat Pal Bhardawaj: Stated in chief examination that the land was taken over by the Army post-1947 and formally acquired in 1986. In cross-examination, admitted lack of personal knowledge of the land, having never visited the site. 11 MA No. 172 of 2004 • Patwari Zulfkar Ali (Statement dated 18.02.2003): Confirmed that Rajouri bus stand is located in Khasra No. 856, village Rampur, falling under Patwar Halqa Rampur. Noted that Khasra No. 103 lies across the Rajouri-Poonch road (Khasra No. 854), with lands of village Gurdhanpain (Khasra Nos. 285, 283, 282, 281/1, and 281) situated further beyond. Categorically stated that Gurdhanpain lands do not adjoin the bus stand; the nearest, Khasra No. 285, lies approximately 150 feet away. 21. It is also averred that their land carrying for more value than the land at village Talwal, Sailani, Dhani Dhar where value of land has been fixed at Rs. 80000/- per kanal. It is also submitted that since their land is adjacent to Bus Stand and within notified area Committee, therefore, it is of great commercial value. The land of the petitioners is situated in village Gurdhan Pain, adjacent to Bu Stand. The Patwari Zulfkar Ali was summoned on 27.12.2002 and had stated in his statement that the Patwari Halqa Rampur includes village Rampur which is presently in Rajouri Town village Talwal, village Chenini Bagla and Bus Stand Rajouri is comprised in Khasra No. 856. Khasra No. 856 is adjoined by Rajouri Poonch road which is in Khasra No.854 and on the other side of the road is land bearing Khasra No. 103 of village Rampur. 22. While assessing the compensation for the acquired land, the learned Arbitrator relied upon judgments rendered by this Court in CIMA No. 186/93 titled Union of India and another vs. Kuldip Raj and others, decided on 16.11.2001, and CIMA No. 72/1988 titled Union of India and others vs. Dhanwanti Devi and others, decided on 06.02.1998.In both cases, as in the present matter, the acquisition took place in the year 1986. The acquisition of land 12 MA No. 172 of 2004 measuring 124 Kanals 10 Marlas in village Rampur and land measuring 204 Kanals 19 Marlas in village Goverdhan Pain (Gurdhan Pain) and the land measuring 69 Kanals 15 Marlas in village Talwal was under consideration and in each case, the Collector had awarded compensation at the rate of ₹11,000 per kanal for the land situated in village Gurdhan Pain. 23. In Dhanwanti Devi’s case (supra), the market value of the land situated in village Gurdhan Pain was determined by the Arbitrator to be ₹60,000 per kanal, which was upheld by this Court. In Kuldip Raj’s case (supra), this Court again referred to the Dhanwanti’s case and held that the interested persons were entitled to compensation of ₹60,000 per kanal. 24. Under the Jammu and Kashmir Requisitioning and Acquisition of Immovable Property Act, 1968, the principle and method of determining compensation is provided in Section 8 of the Act. Section 8(3) of the Act provides for compensation payable for acquisition of land would be agreed price and in the absence of agreement, the price would fetch in open market. The competent authority has to fix the value of the property and this obviously should be ‘just equivalent’. The owner of the property has a choice either to accept the amount fixed by the authority or he may ask the Government to appoint an Arbitrator in the matter. The Arbitrator once appointed by the Government has to hear the parties and make an award determining the amount of compensation which appears to 13 MA No. 172 of 2004 be just. It is also to specify the person or persons to whom the compensation shall be paid. 25. The record shows that land acquisition in Rampur (now Rajouri town) and Gurdhan Pain began in 1986 under the J&K Requisitioning and Acquisition of Immovable Property Act, 1968. The matter went before the Arbitrator, then to the High Court, and finally to the Supreme Court, resulting in the 1996 judgment in Union of India & Others vs. Dhanwanti Devi & Others (1996) 6 SCC 44. Para 13 reads as under:- “13. It would thus be seen that in determining compensation in respect of the acquired property, which is the subject matter of prior requisition and was in possession of the Government, the principle for determination of compensation is as per the bi-lateral agreement between the owner and the Government. Where it was not effectuated and no agreement was reached, the arbitrator is empowered to determine the compensation which the requisitioned property would have fetched in open market, if it had remained in the same condition as it was at the time of its requisition but the prevailing price should be as on the date of acquisition. Had it been sold in the open market to a willing purchaser by a willing vendor, the price offered by a willing purchaser in the open market would be the yardstick. The arbitrator, therefore, is kept in the arm chair of a willing purchaser and should consider the circumstances attending the requisitioned property. Had it remained with the owner in the same condition as it was at the time of its requisition and if it were to be sold on the date of acquisition in that condition, the price a willing purchaser would offer would be just and fair compensation under the Act. The Acquisition Act provides for payment of interest under Section 34 by the Land Acquisition Officer and by the Court under Section 23. Similarly, Section 23(2) provides for payment of solatium, in addition to compensation, in consideration of compulsory acquisition. The presumptive evidence furnishes that the Jammu & Kashmir Legislature was aware of the above provisions and principles of determination of the compensation under the Acquisition Act, yet, the Legislature departed from those principles; instead, it set down under the Act its own principles to determine the compensation. The Act did not expressly provide for payment of interest and solatium as components of compensation under the Act.” 26. In the said case, the compensation for the acquired land located in Villages Rampur and Talwal was assessed at ₹60,000/- per kanal by giving 10% escalation on account of passage of time. This quantum of compensation was upheld by the High Court and the Supreme Court modified the judgment of the High Court to the 14 MA No. 172 of 2004 extent of grant of solatium. The Supreme Court held that the High court and the arbitrator committed manifest grave error of law in awarding solatium and interest on the compensation determined under Section 8 of the Act. Relevant para of the same reads as under:- “….. Accordingly, we hold that the High Court and the arbitrator committed manifest grave error of law in awarding solatium and interest on the compensation determined under section 8 of the Act. 27. The two acquisition cases, namely Dhanwanti’s case and Kuldeep Raj’s case, have direct, complete, and unwavering application to the present matter, as the acquisition in both cases, as well as in the case at hand pertaining to Village Gurdan Pain, was effected in the year 1986. In Kuldeep Raj’s case, i.e., Union of India vs. Kuldeep Raj (CIMA No. 186/1993 decided on 16.11.2001, the challenge was to award of Arbitrator with respect to the land measuring 36 Kanals 10 Marlas in Khasra No. 259 and 260-min of village Gurdhan Pain, Tehsil Rajouri for enhancement of amount from Rs. 11,000/- to 40,000/- per kanal of land measuring 204 Kanals and 10 Marlas in Khasra No. 265, 259, 260-min 262, 266 & 263 was acquired vide common notification dated 29.01.1986 for villages Gurdhan pain, Rampur and Talwal, Rajouri. Their case too was that the land was near Bus Stand Rajouri and had claimed compensation of Eighty thousand. 28. This Hon’ble High Court, while referring to Dhanwanti’s case (supra), in the operative part of the judgment dated 16.11.2001, held as under: 15 MA No. 172 of 2004 “Mr. Sharma, learned counsel could not rebut that the land was notified by the Collector vide same Notification dated 19.1.1086 and the award was made including the land of the respondents vide award dated 30.09.1993 pertaining to three different villages including village Gurdan Pain. The compensation of ₹ 60,000/- I the case of the land of Smtr, Dhanwanti as been awarded y the Court. The respondents’ land is situated in the same village i.e., Gurdan Pain and the status of the land of the rspondents being similar to the land of Dhanwanti is not disputed. The yardstick applied for determination of compensation to both these pieces of land is also not disputed.” In these circumstances, keeping in view the rate of compensation determined and compensation paid to Dhanwanti whose land is situated adjacent to the land of the respondents, being of similar soil and status and also on the basis of the evidence and the judgments delivered in the case of Dhanwanti vs. Union of India and Civil Appeal Nos. 1406-1407, 1993 titled Union of India and anr. Vs. Shri Mulkh Raj, the respondents are entitled to the relief of enhanced compensation. For the aforesaid reasons, the Appeal of the appellants Union of India is partly allowed to be extent of quashing the award of solatium and interest. The Cross Objections/Appeal of the respondents is allowed holding that the respondents are entitled to compensation of Rs. 60,000/- per kanal. 29. Hon’ble Supreme Court in a judgement titled State of Madras vs. A. M. Nanjan & anr. reported as AIR 1976 SC 651 held as under: “The awards given by the Collector are at least relevant material and may be in the nature of admission with regard to the value of land on behalf of the State. x x The rates found in the said documents would be reliable material to afford a basis to work upon for the determination of compensation on the later date.” 30. In the present case, it stands established before the learned Arbitrator that the land of the appellants is situated adjacent to the land in respect of which the rate of compensation has already been determined and compensation awarded, namely, in the cases of 16 MA No. 172 of 2004 Dhanwanti and Kuldeep Raj (supra). However, the learned Arbitrator noted a significant distinction, although the land is situated in Village Gurdhan Pain, it is located in close proximity to Rajouri town, merely 150 feet from the Rajouri Bus Stand with only one khasra number (No. 103 of Village Rampur) lying in between. The learned Arbitrator further observed that the acquired land would have fetched a higher market value in the year 1986 as compared to other land in Village Gurdhan Pain, had it remained in the same condition as it was at the time of its requisitioning. Upon hearing the parties, appreciating the material and evidence placed on record, and relying upon the judgments rendered in Dhanwanti’s and Kuldeep Raj’s cases (supra), the learned Arbitrator has rightly awarded compensation at the rate of ₹65,000/- per kanal. The assessment of compensation made by the learned Arbitrator is found to be just and proper. The appellants are entitled to the same rate of compensation as awarded in the aforesaid two cases, keeping in view the similarity in location, time of acquisition, and nature of land. 31. In view of the foregoing, no ground is made out for interference with the award dated 14.06.2003 passed by the learned Arbitrator. The instant appeal is, accordingly, dismissed. (Sindhu Sharma) Judge JAMMU 06.06.2025 BIR Whether the order is speaking : Yes Whether the order is reportable : Yes