Decided on February 08,2006

STATE OF J AND K Respondents


Y.P.NARGOTRA, J. - (1.) THIS Civil 1st Appeal is directed against the judgment and decree dated 20.5.1998 passed by the learned District Judge Jammu on a reference made by the Collector Land Acquisition Under Section 31 of the Land Acquisition Act, for resolving the dispute between the parties over apportionment of compensation awarded. FACTUAL BACKGROUND:
(2.) LAND measuring 101 kanal 13 marla comprised in khasra Nos. 253,254,255,256,257,258,259,260,254 -min and 257 situate in village Deeli, Tehsil Jammu was acquired for construction of Sampark Project by the Collector Land Acquisition Jammu. In this regard a notification Under Section 4 of the Land Acquisition Act (hereafter referred to as the Act) came to be issued vide No. RD/81 of 1984 dated 14.3.1984 and the notification Under Section 6 was issued on 25.4.1984. The interested persons laid their claims and the Collector after considering the claims, made his award fixing the rate of compensation at Rs. 40000/ - per kanal, including 15% solatium thereon. The Collector found Auqaf Committee Jammu entitled to 20% of the compensation whereas the persons, including the appellants, who were in possession of the land, entitled to 80% of compensation. The appellants, as well as Administrator Auqaf Jammu disputed the entitlement of each other to the compensation before the Collector. Each of them claimed right to receive payment of compensation to the exclusion of the other and therefore sought a reference of the dispute to the District Judge. Hence the Collector made the reference to the District Judge Under Section 31 of the Act. On the basis of the respective claims made by the respective parties learned District Judge framed the following issues for determination: 1 - Whether the Auqaf Committee Jammu is the owner of the land in question OPR1; 2 - If issue No. l is proved in affirmative whether the Auqaf committee Jammu is entitled to compensation and to what extent ?OPR1; - Whether Bulla and others have been in possession of the land in question as allottees? OPP 4 - If issue No. l is proved in negative and issue No. 3 is [proved in the affirmative whether the allottees Bulla and others have been the owners of the land in question and thus they are untitled to full amount of compensation? OP parties 5 - If issue No. l&3 are proved in affirmative to what extent are the parties entitled to compensation? OP parties. 6 - Relief. 3. Both the parties led their respective evidence for and against the proof of issues. After appreciating the evidence learned District Judge found Auqaf Committee Jammu entitled to receive whole of the compensation whereas appellants herein were held not to be entitled to any compensation as their possession was found to be unauthorized.
(3.) ADMITTEDLY the suit land formed part of total land measuring 376 kanal 2 marla attached to Khankah Peer Kanju Sahib by way of grant given by Maharaja Bahadur and as per record of rights in the year 1979 -80 -Bk said Khankah was recorded as occupancy tenant. Vide order dated 1st Sawan 1982 -Bk. the land was exempted from payment of land revenue. The land was under the control and management of Mohtimim Khankah namely Mohd Bakhash who died before 1947 AD. Nazir Ahmed S/O Mohd Bakhash came to be appointed as Mohtimim in place of his father vide mutation No. 231 dated 19.4.1962 recorded by Tehsildar Settlement. Nazir Ahmed too died without becoming evacuee, however, Assistant Custodian Jammu vide his No. 713/AC dated 4.5.1970 notified the land of Khankah as evacuee property. It appears that some legal heirs of said Nazir Ahmed disputed the declaration of the suit land as evacuee property before the Custodian whereupon Custodian Evacuee Property Jammu vide his order dated 16.10.1971 de -notified the property and thus the land reverted back to Khankah. It also requires to be noticed that initially in the revenue record Khankah of Peer Kanju Sahib was shown to be occupancy tenant and State as owner of the land, however according to last record of rights prepared in kharif 1999 and Rabi 2000 Bk said Khankah through Mohd Bakhash (Mohtimim) came to be reflected in column of owners. How the occupancy tenant became owner has not been indicated in the said janabanmdi nor any order of the Government has been made available on record of the case by which ownership rights were conferred upon the Khankah. Be it so the entry reflecting Khankah as owner of the property does not appear to have been questioned before any forum either by the State or any other interested person. The State has thus accepted the ownership of the Khankah over the said land which was given in grant to it. The Khankah is thus owner of the land measuring 376 kanal 2 Maria out of which land measuring 101 kanal 13 marla has come to be acquired.;

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