STATE OF J AND K. Vs. HAMIDA BEGUM

JUDGEMENT

(1.) THIS appeal is directed against the judgement and decree of the Additional District Judge Srinagar dated 17-9-1975 and 6-10-1975, passed by him in a reference made by the Collector in the course of land acquisition proceedings.

(2.) BRIEFLY put the facts of the case are : Land measuring 12 kanals and 3 marlas situate in Barzulla was occupied by Hydraulic Division in the year 1960 pursuant to the scheme of raising of the bund for protecting the locality of Bhagat, Burzalla from flood waters. Nine years after the possession of the land was taken the Government issued a notification on 2-4-1969 for regularising its possession by acquiring the said land. After issuing the relevant notification, under the Land Acquisition Act, the Collector vide his order dated 4-2-1970 made the award. After obtaining the approval of the Revenue Minister he announced the award fixing compensation at Rs. 5192/- per kanal. Mst. Hamida Begum respondent No. 1 felt dissatisfied with the award. She, therefore, sought reference under Section 18 of the Act on the ground that the market value per kanal of land in the locality was Rs. 17,000/- as against Rs. 5192/- assessed by the Collector. The reference came to be heard by the Additional District Judge, Srinagar. The Collector in his objections challenged his own award by submitting that the total area of land was 12 kanals and 3 marlas including 5 kanals and 10 marlas of land which was Shamilat (Mahfooz Kahcharia). The petitioner could not claim compensation for the category of the land described as (Mahfooz Kahcharia Shamilat Deh). He also disputed the claim of the petitioner to get enhanced rate of compensation in respect of the other lands. The following issues were framed in the case :

(3.) LEARNED counsel for the appellant has assailed the judgement of the trial court on the ground that it is founded upon that evidence which has been brushed aside by the High Court in appeal after directing fresh trial in the case. The lower court has failed to apply its mind to this aspect of the question and has based its judgement on inadmissible evidence which was recorded at the time when the Custodian was not a party to the proceedings. After the case was remanded, and fresh trial had started and the parties were directed to adduce evidence afresh, the previous evidence on the file could not be pressed into service for basing its finding by the court. Only that evidence which was recorded after the order of remand could be looked into and acted upon. Learned counsel has submitted that the evidence produced by the respondents consists of the oral statements whereas the evidence produced by the appellant is based on revenue records and other documents. It is urged that the court has wrongly allowed compensation to the respondents for 5 kanals and 19 marlas of land which is Shamilat land as no compensation for this category of land can in the eye of law be claimed by the respondent. The court has without any rhyme or reason enhanced the rate of compensation. Moreover, the court has wrongly assessed interest from the year 1960 when possession of the land had been taken. As a matter of law, interest could be claimed and assessed from the date when the notifications under Sections 4 and 6 of the Land Acquisition Act were issued in the year 1969 and not from the year 1960. The court also wrongly allowed interest at the rate of 6% per annum from the year 1960 whereas it should have allowed interest at the rate of 4% per annum. It is further contended that Shri Shamim Ahmed Shamim was not a party to the reference. He had not sought reference and yet the court adopted a novel procedure by arraigning him a party after the judgement was delivered. His name was wrongly entered in the decree sheet. For all these reasons, the counsel has submitted that the judgement and decree of the Additional District Judge be set aside and the award of the Collector be restored with the modification that no compensation be allowed in respect of Shamilat land.