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The State of Jammu and Kashmir and anr. Vs. Gopi Nath Wali and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtJammu and Kashmir High Court
Decided On
Case NumberLetters Patent Appeal (Writ) No. 17 of 1980
Judge
Reported inAIR1985J& K76
ActsJammu and Kashmir Common Lands (Regulation) Act, 1956 - Sections 7 and 8; ;Code of Civil Procedure (CPC) , 1908 - Order 47, Rule 1
AppellantThe State of Jammu and Kashmir and anr.
RespondentGopi Nath Wali and anr.
Appellant Advocate S.D. Sharma, Chief Govt. Adv.
Respondent Advocate S.P. Gupta, Adv.
DispositionAppeals allowed
Cases ReferredNorthern India Caterers (India) Ltd. v. Lt. Governor of Delhi. Similarly
Excerpt:
- .....of the rate at rs. 15,000/- per kanal bifurcated his order in two parts. in the first part, the learned judge by dealing with the various provisions of the act and sub-section (4) of section 15 read with jammu and kashmir land revenue act 1996 and the jammu and kashmir tenancy act 1980, held that the collector being a revenue officer within the meaning of the act and that of the land revenue act 1996 and the jammu and kashmir tenancy act 1980 was empowered to exercise the powers of review. the learned single judge found and held that 'sub-section (4) of section 15 of the act has to be given its plain and natural meaning in order to find out its real import. once such a meaning is given to it, the inference that the collector can review his own order becomes irresistible. obviously,.....
Judgment:

Shah, J.

1. Both the above said letters patent appeals involve common questions of law and facts, which are disposed of by Mr. Justice I. K. Kotwal, the learned single Judge of this court in writ petition No. 135 of 1974 (Pt. Gopi Nath Wali v. Revenue Commissioner (Divisional Commissioner) and others and writ petition No. 146 of 1974 (Amarjeet Singh Johar and others v. Revenue Commissioner (Divisional Commissioner) Jammu and others) by orders passed respectively on April 29, 1980 and April 24, 1980, by which both the petitions are allowed and the orders impugned in both the above petitions passed on Aug. 23, 1974 and Nov. 8, 1973 respectively by Divisional Commissioner, Jammu and Deputy Commissioner (Collector), Jammu are quashed by a writ of certiorari. Thus both the letters patent appeals mentioned above are heard together and are hereby disposed of by a common judgment.

2. Facts in brief giving rise to the present appeal are; that some 242 families of displaced persons set up their camp at Gujral Tehsil Jammu and occupied the land belonging to private individuals including the present petitioner/appellant. The displaced persons occupied the said land for residential purposes. In order to regularise their possession over the said land the State authorities took necessary steps under the Jammu and Kashmir Common Lands (Regulation) Act 1956 (Act No. XXIV of 1956) (hereinafter called the Act) which included the extension of village Abadi of Gujral Tehsil Jammu under Section 7 of the Act. Notification No. 223-57 LA dated June 23, 1969 was issued in this regard. The compensation for the land brought under Basti in village Gujral Tehsil Jammu was fixed by the then Deputy Commissioner (Collector) at the rate of Rs. 15,000/- per Kanal for paying to the private individuals whose land was acquired. After determination of the said compensation, information was sent to provisional Rehabilitation Officer for payment of compensation, who in his turn wrote a letter to the Secretary to Government, Relief and Rehabilitation Department, to arrange for the funds amounting to Rs. 17,92,000/- to be paid for the total land assigned, including the land belonging to the petitioners also. Later on a query was made vide letter dt. June 12, 1973 as to whether the rate fixed for payment of compensation was in accordance with the mode laid down in Section 8 of the Act to which a reply was also sent by the letter dt. June 21, 1973 that it was exactly so.

3. In partial compliance of the determined compensation as stated above, some payment was made by the Provincial Rehabilitation Officer (in short hereinafter referred as PRO) on Mar. 20, 1973 on behalf of the State Government to the petitioners. However, the Deputy Commissioner (Collector) thereafter sought permission of the Divisional Commissioner, Jammu, in terms of Sub-section (4) of Section 15 of the Act to review the earlier decision fixing the rate of compensation at Rs. 15,000/- per kanal as according to him the said determination of compensation was not done in accordance with the mode provided in Section 8 of the Act, but the same was fixed according to the provisions of Section 23 of the Land Acquisition Act. Permission sought for the review was granted by the Divisional Commissioner. On receipt of the permission, the notices were issued to the present appellant to appear before him. The petitioners on appearance, put up their objections and apart from other grounds also attacked the jurisdiction of the Dy. Commissioner (Collector) to review his earlier order. After hearing the petitioner and taking some evidence the Dy. Commissioner (Collector) revised the previous order and determined the annual income of one kanal of land acquired as not exceeding Rs. 300/-, he, therefore, by his order dt. Nov. 8, 1973 reduced the compensation, which was earlier fixed at the rate of Rs. 15,000/- per Kanal. On appeal by the petitioners against the said order of Dy. Commissioner (Collector) to the Divisional Commissioner, Jammu, the learned Divisional Commissioner vide his order dt. Aug. 23, 1974 dismissed both the appeals, thereby giving rise to the filing of the writ petitions challenging the abovesaid two orders before the learned single Judge, which were respectively registered as writ petition No. 135 of 1974 and writ petition No. 146 of 1974.

4. The learned single Judge on hearing the writ petitions and after examining the various letters issued, the details of which are given in the writ petition with respect of the quantum of compensation and the fixation of the rate at Rs. 15,000/- per kanal bifurcated his order in two parts. In the first part, the learned Judge by dealing with the various provisions of the Act and Sub-section (4) of Section 15 read with Jammu and Kashmir Land Revenue Act 1996 and the Jammu and Kashmir Tenancy Act 1980, held that the collector being a Revenue Officer within the meaning of the Act and that of the Land Revenue Act 1996 and the Jammu and Kashmir Tenancy Act 1980 was empowered to exercise the powers of review. The learned single Judge found and held that 'Sub-section (4) of Section 15 of the Act has to be given its plain and natural meaning in order to find out its real import. Once such a meaning is given to it, the inference that the collector can review his own order becomes irresistible. Obviously, therefore, respondent 2 was empowered to review his earlier order fixing Rs. 15,000/- as the compensation payable for each Kanal of the land assigned.' In the second part the learned single Judge on considering the existence of a valid ground for review dealt with the provisions of Order 47 Rule 1 of the Civil P.C. considered that the grounds upon which an order may be reviewed must suffer from an error which is also apparent on the face of the record and held that keeping in view the well settled principle of law and considering the facts and circumstances of the case in hand, the collector was not justified in reviewing his earlier order. It is further held that an order undoubtedly can be reviewed under Order 47 Rule 1 on the ground that it suffers from an error of law, but it has further to be shown that the error is apparent on the face of the record and thereby quash the orders passed by the collector on Nov. 8, 1973 and the order passed by the Divisional Commissioner confirming the order of the collector by his order passed on Aug. 23, 1974 by a writ of certiorari holding that there was no error, so to review the earlier order and thereby directed the appellant by a writ of Mandamus to pay the balance of the compensation to the petitioners at the rate of Rs. 15,000/- per kanal as originally awarded by the collector. It is against this judgment and order allowing the writ petitions that the appellants have come up in this letters patent appeal before us.

5. The learned Chief Government Advocate appearing on behalf of the appellants strenuously submitted before us that the order passed by the learned single Judge is liable to be set aside on the grounds that the earlier order passed by the Dy. Commissioner (Collector) fixing the rate of compensation at Rs. 15,000/- per kanal was merely based on a certificate by the then collector, which was in complete violation of the provisions of Section 8 of the Act, there being no provision for the issuance of such a certificate, the fixation of the compensation being in utter disregard of the provisions of Section 8 was without jurisdiction and nullity. The letter written by the then collector to P.R.O. for the payment of compensation at the rate of Rs. 15,000/- per kanal was merely an opinion, which was later found erroneous and the authorities responsible for the payment of compensation found that the fixation of the rate was based on error apparent on the fact of the record in-asmuchas instead of following the criteria and procedure prescribed under Section 8 of the Act for determination of compensation, it was fixed in terms of Section 23 of the Land Acquisition Act and thus it necessitated the review of the earlier order. Hence in the facts and circumstances of the case, learned Chief Government Advocate submitted that with the permission of the Divisional Commissioner, the Dy. Commissioner (Collector) was fully competent and justified in reviewing his earlier order to determine the compensation in accordance with Section 8 of the Act for which the collector as defined under the Jammu and Kashmir Land-Revenue Act 1966 and Jammu and Kashmir Tenancy Act 1980 is a revenue officer and all the powers conferred on the revenue officer for the purposes of review under the Land Revenue Act and the Tenancy Act are equally available to him by the force of Sub-section (4) of Section 15 of the Act which power is also upheld by the learned single Judge and there is no cross appeal by the respondents challenging the said finding. The learned Chief Government Advocate submitted that the finding of the learned single Judge with respect to the non-existence of a valid ground for review is against Law and thereby the learned single Judge ignored the facts relating to the non-observance of the provisions of Rule 4 of the Jammu and Kashmir Common Lands (Regulation) Rules, 1969 framed under Section 8 of the Act and wrongly held the certificate as the Award under Section 8 of the Act within the meaning of Section 7 which was purely an error apparent on the face of the record and thus the judgment and order passed by the learned single judge is liable to be set aside on the abovesaid ground.

6. The learned counsel for the respondents in reply submitted that apart from the fact that the learned single judge wrongly held the powers of review were available to the Collector by importing the provisions of the Land Revenue Act 1996 and the Tenancy Act 1980 in Sub-section (4) of Section 15 of the Act has rightly quashed the orders, passed by the Collector in review and confirmed by the Divisional Commissioner on appeal, as there was no ground available to review the earlier order, which was on interpretation of the various letters on record initially accepted by the P.R.O. and the government authorities and even the part payment in compliance thereof was made to the respondents. Learned counsel for the respondents fully supported the order passed by the learned single Judge alleging that there existed no ground to review the earlier order which was required to be demonstrated under the provisions of Order 47 Rule 1 of the Civil P.C. In support of his contention, he relied on a decision of the Hon'ble Supreme Court reported in AIR 1980 SC 674 Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi. Similarly AIR 1978 SC 851, AIR 1973 SC 689 and AIR 1970 SC 1273 are also cited at the Bar in support of the contention stating under what circumstances an earlier order passed by an authority can be reviewed.

7. Before examining the real point in controversy, we would like to reproduce herewith some relevant provisions of the Act and the relevant Rule, under which the collector is empowered to make an award for the payment of compensation in accordance with the provisions of Section 8 of the Act, which are enumerated below : --

'6. Assignment of land for village Abadi. -- (1) wherein any village no land is recorded for extension of the village Abadi, or if the land so reserved is inadequate, a Collector may, notwithstanding anything contained in any law for the time being in force, by an order in writing, assign in the manner prescribed other land for such purpose from either of the following categories of land namely : --

(a) land owned by the state in the village : Provided it is not required for any State purpose;

(b) waste land in the village Shamilat;

(c) waste land in any proprietary holding in the village; and

(d) cultivated land in the village;

Provided that unless land included in any preceding category be not available or be not suitable, no land from the next category shall be assigned.

2. x x x x x3. x x x x x4. (i) Where the land is assigned out of the land held in ownership right, all rights, title and interest (including the contingent interests if any recognised by any law, custom or usage for the time being in force) of the land owner shall notwithstanding anything to the contrary contained in any law custom or usage for the time being in force, except as otherwise provided in this Act, be extinguished and such rights title and interest shall be vested in the inhabitants of the village in whose favour it is apportioned free from all encumbrances.

(ii) The inhabitants of the village in whose favour such land is apportioned shall be liable to pay and the land-owner concerned shall be entitled to receive and be paid such compensation as may be determined under this Act.'

The above section deals with the assignment of land for village abadi, about which there is no dispute in the present case.

'7. Determination of compensation. (i) Any land owner whose rights have been extinguished under Section 6 may within six months from the date of the order of assignment made by the Collector, apply to the Collector, in such form as may be prescribed, for the determination of the amount of compensation payable to him by the concerned inhabitants of the village :

Provided that the Collector may entertain the application after the expiry of the said period of six months, if he is satisfied that the applicant was prevented by the sufficient cause from filing the application in lime.

(2) On receipt of an application under subsection (1) the Collector shall after giving the applicant an opportunity of being heard and after making such enquiry as may be prescribed make an award determining the amount of compensation payable in accordance with the provisions of Section 8.'

This is also not disputed in the present case that the respondents applied to the collector for the determination of the amount of compensation under the abovesaid provision. It will be appropriate at this stage to reproduce the rule which prescribes the manner of enquiry and making of the award and determining the amount of compensation in accordance with the provisions of Section 8 of the Act. Rule 4 Sub-rule (2) of the Jammu and Kashmir Common Lands (Regulation) Rules 1969 provides the procedure as follows : --

'4. x x x x xx x x x x(2) On receipt of the application made under Sub-rule (i) the collector shall for purposes of his award, make an enquiry into and determine

(i) the amount of land revenue to which the land is assessed;

(ii) where the land is not assessed to any revenue or, where it is assessed but is not waste land, the rent and other dues which the applicant as landlord had received or should have received, had the land been let out, from his tenant during the last 12 years.

(a) in cash and/or

(b) in kind with cropwise quantity of produce received for each harvest;

(iii) any other right or interest other than proprietary held in the land which needed to be compensated;

(iv) any encumbrance on the land assigned; (v) the period of 12 years between 1-4-1943 and the date of the award and the firm prices which prevailed during such period.

(3) In determining the period of 12 years under Sub-rule (2)(v), the Collector shall select the normal years, and to the produce thereof, apply the harvest prices as maintained in the Tehsil record and/or the prices which the farmers had received from the local grain dealers for any produce sold by them within 2 months of the harvesting of the crops;

Provided always that for any kind of produce sold to the Government including the Jammu and Kashmir Co-operative department, the price received by the farmers shall be applied.

(4) The average of the price of any kind of produce ascertained under Sub-rule (3) shall be determined by the simple process of dividing their sum total for all the years by twelve.

Explanation-- The word normal used in Sub-rule (3) of Rule 4 means free from seasonal calamities like draught, hailstorm, locusts, floods, untimely snow etc. of large scale and wide effect.

Section 8 of the Act reads thus : --

8. Principles of compensation.-- The amount of compensation payable under this Act shall when the land is waste, be twenty time the land revenue paid and in other cases ten/times the amount of annual rent and other dues, if any, received by the land-owners.

Provided that where the rent or other dues is or are paid wholly or partly in kind the amount of such annual rent of other dues shall be calculated on the basis of the average of the price of the produce during a period of twelve years, commencing from the first day of April 1943.'

8. Keeping in view the above provisions of law when we read the certificate issued by the collector in the present case, which is termed as an award by the learned single Judge is as follows, annexed with the petition as annexure (c): --

To

The Provincial Rehabilitation Officer,

Jammu

No. 1128/LA dt. 23-3-1973.

Sub : -- Compensation of land under Basti in Village Gujral Tehsil Jammu.

It is certified that the rate of Rs. 15,000.00 (fifteen thousand) per kanal for payment of compensation of the Sand brought under Basti in village Gujral Tehsil Jammu is fair and reasonable.

Sd/- Collector

Dy. Commissioner, Jammu.

Great emphasis is also laid by the learned counsel for the respondents on a letter issued by the Dy. Commissioner, Jammu to the Dy. Secretary, Relief and Rehabilitation Deptt. (annexure-G) filed with the petition which is also reproduced as below : --

Sir,

Kindly refer to your letter No. R (Reh) 66/944 dt. 12-6-1973 regarding the subject noted above. The compensation proposed under this office letter No. 11281-AAdt. 22-3-1973 is based bn the principles laid down in section 8 of the J & K Common Lands (Regulation) Act, 1956.

Yours faithfully,

Sd/- Dy. Commissioner,

Jammu.

9. We have also perused the record of the Collector relating to the declaration of the land under the above-said provisions and the determination of compensation and we find that the above two letters and the letters connected therewith are taken as the basis for the determination of the compensation at the rate of Rs. 15,000/- per kanal and no award as required under the aforesaid provisions is found on the record. It is only after the review of the orders relating to the determination of compensation under the abovesaid letters that the Collector made the award by his order passed on Nov. 8, 1973. The learned single Judge while dealing with the above-quoted letters and the award given by the Collector on review termed the determination of compensation at the rate of Rs, 15,000/- per kanal as an award within the provisions of Sections 7 and 8 of the Act and held that there was no error apparent on the face of the record, so as to give rise to the exercise of the power of review by the Collector and substitute his award vide impugned order passed on Nov. 8, 1973, which has been confirmed on appeal by the Divisional Commissioner, by his order dt. Aug. 23, 1974 and thus both the orders are quashed by the learned single Judge. On going through the record we do not find ourselves in agreement with the findings arrived at by the learned single Judge and hold that without following the procedure prescribed. When the Collector by a mere certificate determined the compensation at the rate of Rs. 15,000/-per kanal and thereafter confirmed the same by a letter written to the Dy. Secretary, Relief and Rehabilitation Department by sayingthat the said certificate is based on the principles laid down in Section 8 of the Jammu and Kashmir Common Lands (Regulation) Act 1956, it is a naked exercise of power for which we do not find any basis on record, thus on all accounts to treat the said certificate and the letter as an award without any basis of the procedure prescribed is an error apparent on the face of the record, which was sufficient to be reviewed by the subsequent award. Thus the finding of the learned single Judge holding the determination of compensation at Rs. 15,000/-per kanal as valid, in our opinion is not based on cogeat reasons which is liable to be set aside.

10. However, on going through the award given by the Collector vide order dt. Nov. 8, 1973, we are of the opinion that this award is also not in accordance with the procedure prescribed under Rule 4 ibid and the determination of compensation at the rate of Rs. 300/- per kanal is also not in accordance with the provisions of Sections 7 and 8 of the Act, which should have been determined in accordance with the procedure prescribed under Rule 4 by taking into consideration the material, the revenue record and should have been calculated thereafter in accordance with the provisions of Section 8 of the Act. Thus for the reasons stated above, disagreeing with the learned single Judge we uphold the order of review, but set aside the award as the same is also not in accordance with the law and the procedure prescribed and hereby also we set aside the order passed by the learned Divisional Commissioner on Aug. 23, 1974 confirming the said award.

11. In view of the above-said circumstances, we allow the Letters Patent Appeals set aside the order passed by the learned single Judge holding that there existed no ground for review, we hold that there existed the ground for review, but on different grounds we quash the award given by the Collector on Nov. 8, 1973 and the order passed by the Divisional Commissioner passed on Aug. 23 1974 and remand the case to the Collector (Dy. Commissioner) Jammu to make a fresh award after due notice to the parties and following the procedure prescribed under Rule 4 referred to above and determine the compensation afresh in accordance with the provisions of Sections 7 and 8 of the Act accordingly. Consequentially the appeal is allowed with the abovesaid directions and the case is remanded to the Collector for determination of compensation afresh in the light of the above observations. However, in accordance with the circumstances of the case, we leave the parties to bear their own costs.

12. In Letters Patent Appeal No. 17 of 1980 CMP No. 979 of 1980 also stands disposed of accordingly.


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