The Court held that if the land allotted in exchange cannot be handed over on account of its occupation by a third party, the Collector is duty-bound to ensure that alternate land of equivalent value is provided to the expropriated owner.

The Court thus set aside the judgment of the Reference Court and directed the respondents to identify 4 kanals of State/JDA land of similar value in place of the land not delivered and hand over its possession to the appellant within three months.

The Court was hearing an appeal filed under Section 52 of the J&K Land Acquisition Act, Svt., 1990, challenging a judgment passed by the learned Additional District Judge, Jammu, whereby a reference made by the Collector Land Acquisition under Section 18 of the said Act was dismissed.

The reference was sought by the predecessor-in-interest of the appellants, who was aggrieved by the failure of the authorities to hand over possession of a portion of the alternate land awarded to her and by the inordinate delay in passing the award.

The appeal was heard by Justice Sanjay Dhar, who observed,

“It is the duty of respondent No. 2- Collector Land Acquisition PWD Jammu under the J&K Land Acquisition Act, Svt. 1990 to ensure that the award is satisfied and that the landowner is given compensation in terms of the award.”

Background

The predecessor-in-interest of the appellants, Kumari Shanta Bharti, owned and possessed land which was acquired by the respondents in the year 1973 for the construction of a By-Pass Road to Tawi Bridge. She opted not to receive cash compensation and exercised an option for alternative equivalent land. Subsequently, in the year 1994, the Collector Land Acquisition passed an award providing alternate land comprising three chunks, including 4 kanals of land situated at Village Khanpur.

Bharti felt aggrieved by the inordinate delay of almost twenty years in passing the award of alternate land, which gave rise to a claim for damages for deprivation of her property. She also contended that possession of the 4 kanals of land had not been handed over to her. This prompted her to make an application under Section 18 of the J&K Land Acquisition Act, Svt. 1990 before the Collector Land Acquisition seeking reference of the dispute.

The Collector filed its reply, pleading that the passing of the award involved several formalities and that possession of the entire land provided in terms of the award had been handed over. The Reference Court framed issues, including an additional issue as to whether the respondent had delivered complete possession of the entire land agreed to be delivered in exchange.

Bharti entered the witness box and stated that the 4 kanals of land in Village Khanpur was never handed over to her, as the Army Authorities claimed it belonged to them. The Collector appeared as a witness, but his cross-examination remained incomplete as he failed to appear on subsequent dates, leading to the closure of evidence. The Reference Court dismissed the reference, holding that there was no evidence to show loss due to delay, and failed to discuss the issue regarding the handing over of possession of the 4 kanals of land.

Court's Observation

The Court observed that the finding of the Reference Court that the appellant had not led any evidence regarding the alleged loss suffered due to delay in passing of the award was well-founded. The Court noted that the only evidence led by Kumari Shanta Bharti was her own statement.

The Court further observed that since she was given land in exchange and was not awarded cash compensation, her contention that she suffered loss on account of delay could not have been accepted. The Court held that if the acquired land was subject to escalation in price, the land given in exchange was also subject to equivalent escalation in its market price, and therefore, no monetary loss was suffered.

Regarding the main point at issue, the Court noted that Bharti had specifically asserted in her statement that the 4 kanals of land in Khasra No. 344 situated in Village Khanpur was never handed over to her, as the Army Authorities claimed it belonged to them.

The Court observed,

“In the face of the aforesaid nature of evidence, the assertion of Kumari Shanta Bharti, predecessor-in-interest of the appellant, that she was never handed over possession of 4 kanals of land situated at Khanpur has remained unrebutted and the same stands established.”

The Court further noted that the Collector, in his examination-in-chief, stated that possession of the 4 kanals of land was also handed over. However, his cross-examination remained inconclusive, and he never appeared before the Court for recording his further cross-examination.

The Court held that this incomplete testimony could not be relied upon as evidence in the eyes of law. The Court further noted that the Collector was in possession of the relevant record and, despite a specific application seeking its production, failed to produce the same.

The Court held,

“A party in possession of the record, if it fails to produce the same despite the adverse party seeking its production, an inference has to be drawn that if such record had been produced, it would have been un-favourable to the party in possession of the same failing to produce so.”

The Court observed that an adverse inference had to be drawn against the Collector for withholding the record relating to the handing over of possession. The Court further noted a communication addressed by the Director, Land Management, Jammu Development Authority, to the Deputy Commissioner, Jammu, which indicated that a patch of land was identified for allotment in place of the 4 kanals of land whose possession was never delivered.

The Court thus held that the Reference Court had not adverted to this aspect of the matter at all and had neither dealt with the additional issue nor considered the evidence led on it.

The appeal was thus allowed, and the impugned judgment l passed by the learned Additional District Judge, Jammu, was set aside. The respondents were directed to identify 4 kanals of State/JDA land of similar value in place of 4 kanals of land at Khanpur, and make its allotment in favour of the appellant Raj Sharma (Bharti) and legal heirs, if any,