Sh. Sheikh Reyaz Hamid & Others vs State Of J&K And Others
2021 Latest Caselaw 1729 j&K

   HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                    ATJAMMU
CJ Court

Reserved on 05.08.2021
Pronounced on: 23.12.2021

Case: OWP No. 1634 of 2016


Sh. Sheikh Reyaz Hamid & Others                               ..... Petitioner(s)

                                Through :- Sh. R.K.S.Thakur, Advocate
                          v/s

State of J&K and Others                                          .....Respondent(s)
                                Through :- Sh. S.S.Nanda, Sr. AAG for respondent
                                           Nos. 1 to 5
                                           Sh. Vipan Gandotra, Advocate for
                                           respondent No. 6



      CORAM:
      HON'BLE THE CHIEF JUSTICE
      HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE

                                JUDGMENT

PANKAJ MITHAL, CJ:

01. Heard Sh. R.K.S.Thakur, learned counsel for the petitioners and

Sh. S.S.Nanda, learned Senior Additional Advocate General for

respondent Nos. 1 to 5 and Sh. Vipan Gandotra, learned counsel for the

respondent No. 6.

02. The petitioners are 38 in numbers. All of them are aggrieved by

the acquisition of their land measuring about 49 kanals and 17 marlas

situate in village Devgole Tehsil Banihal District Ramban which has

been notified for acquisition for the four lanning of the National

Highway.

03. The petitioners have thus invoked the extra-ordinary writ

jurisdiction of this Court seeking for quashing of the following:-

(i) Notification dated 2nd June 2008 issued under Section 4(1) of the J&K Land Acquisition Act Samvat 1990 (hereinafter referred to as 'the Act');

(ii) Notification dated 21st December 2009 issued Section 6 of the Act;

(iii) Public Notice dated 9th January 2010 issued under Sections 9 and 9-A of the Act;

      (iv)    Tentative award dated 24th February 2010;
      (v)     Notification dated 17th October 2011 issued under
              Section 17 of the Act ; and
      (vi)    The final award dated 5th November 2016 passed
              under Section 11 of the Act.

04. The basic ground on which the above prayers have been made is

that the entire proceedings of acquisition are bad in law and have lapsed

by virtue of Section 11-B of the Act inasmuch as no final award was

made within a statutory period of two years from the date of the

declaration made under Section 6 of the Act.

05. The defence is that since the urgency provision of Section 17 was

invoked and the possession of the land was taken over, the land had

vested in the State, in which circumstance Section 11-B of the Act

would have no application.

06. It may be important to note that the provisions of the Act are pari

materia with the Land Acquisition Act 1894. The provisions of Section

11-B of the Act are equivalent to Section 11-A of the Land Acquisition

Act., 1894.

07. Section 11-B of the Act which is relevant for our purpose in this

case, is reproduced hereinbelow:-

"[11-B. Period within which an award shall be made.- The Collector shall make an award under Section 11 within a

period, of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of land shall lapse:

Provided that in case where the said declaration has been published before the commencement of the State Land Acquisition (Amendment) Act, 1997, the award shall be made within a period of two years from such commencement."

08. The aforesaid provision mandates that the Collector shall make

an award under Section 11 within a period of two years from the date of

publication of the declaration under Section 6 of the Act and in case no

award is made within the stipulated period, the entire proceedings for

acquisition shall lapse. This is subject to an exception carved out by the

Act where the land vests in the State consequent to invocation of

urgency clause under Section 17 of the Act. Thus, in view of the

aforesaid provision and the exception, we have to see if the proceedings

of the acquisition have lapsed by virtue of Section 11-B of the Act if the

award has not been made within the stipulated time.

09. In order to determine the above aspect of the matter, it would be

appropriate to note some of the relevant and important dates which are

material for the above purpose. The said dates are as under:-

         (1)      Section 4 Notification dated 02.06.2008
         (2)      Section 6 Notification dated 21.12.2009
         (3)      Section 17 Notification dated 27.10.2011
         (4)      Possession (alleged) dated 20.09.2011
         (5)      Final award dated 05.11.2016

10. The above dates reveal that the two crucial dates for the purposes

of applying Section 11-B of the Act are the date of notification issued

under Section 6 of the Act, i.e., 21.12.2009 and the date of the final

award, i.e., 05.11.2016.

11. On the simple consideration of the above two dates in context

with Section 11-B of the Act, it would be evident that the award had not

been made within a statutory period of two years from the date of

publication of the notification under Section 6 of the Act and, therefore,

the proceedings would stand lapsed.

12. The perusal of the date of possession which happened to be

20.09.2012 also demonstrates that the possession of the acquired land

was not taken over by the respondents within two years of the final

acquisition of the land and, as such, the land had not vested in the State

till then.

13. In other words, neither the award was made within two years of

the final acquisition of the land nor the land had vested in the State and,

as such, the acquisition proceedings stand lapsed by virtue of Section

11-B of the Act. The taking of possession of the land subsequent to the

lapsing of the proceedings is not a valid possession in the eyes of law. It

would not confer any right in the land upon the respondents.

14. Now we come to the issue that the land acquisition proceedings

would not lapse where the urgency provisions under Section 17 of the

Act have been invoked.

15. In the present case, notification under Section 17 of the Act was

issued on 27.10.2011 enabling the respondents to take possession of the

land even before the award is pronounced. However, the inquiry

required to be made under Section 5-A of the Act was not dispensed

with. The purpose of taking immediate possession is to avoid delay in

the execution of the project. The taking over of the possession of the

land notified for acquisition has the effect of vesting the property in the

State provided the possession is taken over legally within time, i.e.,

before the proceedings lapses.

16. It may be noted that ordinarily possession of the land notified to

be acquired is taken over after the pronouncement of the award except

where urgency provisions are invoked and the possession is taken before

the award. The land once vested in the State with the transfer of

possession subsequent to acquisition cannot be divested and it is for this

reason the above exception has been carved out that the acquisition

proceedings would not lapse simply if the award is not made within time

if the possession has been taken and the vesting is complete.

17. Generally, in view of Section 11-B of the Act, the acquisition

proceedings came to an end on the expiry of two years from the date of

notification dated 21.12.2009 issued under Section 6 of the Act if no

award within the said time is made and the land had not vested in the

State for want of possession. The subsequent taking of possession is not

a valid possession and is immaterial.

18. In 'Satendra Prasad Jain v. State of U.P, (1993) 4 SCC 369 and

Awadah Bihari Yadav and Others v. State of Bihar and Others, (1995)

6 SCC 31,' it has been held that the provision of Section 11-A of the

Land Acquisition Act which is in pari materia with Section 11-B of the

Act would not apply where the land is acquired by invoking the urgency

provisions under Section 17 of the Act. This is for the reason that where

urgency provisions are invoked and the possession of the land is taken

over, it vests in the Government free from all encumbrances and the

Government cannot be divested from such land but the said principle

cannot be applied blindly to cases where though urgency provisions are

invoked but the possession of the land is not taken in a legal manner

within time and the proceedings are allowed to lapse. In such a situation,

subsequent taking over of possession is of no consequence as possession

of land cannot be taken after the proceedings have lapsed.

19. The Apex Court distinguishing the above two judgments in

'Laxman Pandya v. State of U.P, (2011) 14 SCC 94,' held that the

above two authorities are applicable where the possession of the land

has been taken within two years of the declaration under Section 6(1) of

the Act and the acquired land had vested in the State within the said

time. Thus, it was held that where possession of the land has not been

taken and no award has been passed within two years of the publication

of the declaration under Section 6(1) of the Act, the land acquisition

proceedings automatically lapse by virtue of Section 11-A of the Act,

i.e., Section 11-B of the Act in the instant case. This is also a situation in

the case we are dealing with, wherein also neither any award was made

within the stipulated period nor the land had vested in the State within

the said period despite invoking of the urgency provisions.

20. The case of 'Satendra Prasad Jain' (supra) has been considered

and distinguished by the two other decisions of the Supreme Court in

the case of 'Laxami Devi vs. State of Bihar and Ors. 2015 (10) SCC

241'and M/s Soorajmull Nagarmull vs State of Bihar & ors. 2015 AIR

(SC) 3400,' wherein it has been reiterated that the Government is

obliged to pass an award within two years and, if the award is not so

passed, it would render the acquisition void in view of Section 11-A of

the Land Acquisition Act.

21. Sh. Nanda, relied upon 'New Okhla Industrial Development

Authority v. Harkishan through LRS and Others, (2017) 3 SCC 588,

to contend that once the award is passed and it is not challenged

immediately, no relief can be granted to the petitioners.

22. In the aforesaid case, it has been held that failure to challenge the

award at the earliest possible instance and challenging it in a fresh

litigation is barred by principles of Order 2 Rule 2 CPC and also by

delay and laches. In the said case before the Supreme Court, the

petitioners have first challenged the acquisition proceedings in the High

Court which ended against them and, therefore, they preferred SLP to

the Supreme Court. In the meantime, an award was passed. Thereafter

when the SLP was taken up, it was dismissed but with liberty to the

petitioners to make a representation to the State Government for the de-

notification of the land. Once the representation was made and rejected,

a challenge was unsuccessfully made before the High Court. It was

thereafter in the third round that the petitioners challenged the award on

the ground that it has lapsed by virtue of Section 11-A of the Act. It is in

the facts and circumstances of the above case, the court held that there

was no prompt challenge to the award and that the challenge stands

defeated on the principles of Order 2 Rule 2 CPC.

23. The above is not the situation in the present case. Here, the award

was passed on 5th November 2016 and immediately thereafter the writ

petition was filed in the year 2016 itself and, as such, there is neither

any undue delay or laches in filing the same and since there was no prior

litigation, it cannot be said that the principles of Order 2 Rule 2 CPC

would stand attracted.

24. In view of the aforesaid facts and circumstances and the legal

position, the land acquisition proceedings pursuant to the declaration

dated 21.12.2009 automatically lapses for want of award under Section

11 of the Act and vesting of land within two years thereof.

25. In the end, a faint effort was made to contend that the period

during which some stay order in respect of the above acquisition

proceedings has remained operative is liable to be excluded for

calculating the period of two years for making the award from the date

of the declaration made under Section 6(1) of the Act. In this regard, it

is submitted that in OWP No. 477 of 2010, a stay order was passed on

03.05.2010 and that of status quo on 01.01.2016 which remained in

operation till 06.10.2016 on which date the petition was disposed of.

26. The above submission is completely mis-conceived as the

challenge in the above writ petition was to different proceedings of land

acquisition which commenced with the notification dated 24.06.2006. It

was not in connection with the acquisition proceedings in question and,

as such, any interim order passed therein would not have any bearing on

the lapsing of the above proceedings.

27. In view of the aforesaid facts and circumstances, we have no

option and hesitation but to declare that the land acquisition proceedings

pursuant to the notification dated 2nd June 2008 issued under Section 4

of the Act and the declaration dated 21st December 2009 issued under

Section 6 (1) of the Act have lapsed by virtue of Section 11-B of the Act

and consequently the taking over of the possession, if any, on

20.09.2012 is illegal and of no consequence insofar as it relates to the

land involved in the writ petition.

28. Accordingly, we direct the respondents either to restore the

possession of the land to the petitioners or in the event it is not possible

to do so, to acquire it afresh or alternatively to offer the petitioners fair

market value of the said land as on date as may be assessed/determined

by applying the principles for determination of compensation as laid

down under the Right to Fair Compensation and Transparency in Land

Acquisition, Rehabilitation and Resettlement Act, 2013 which has been

enforced in the Union Territory of Jammu and Kashmir with effect from

31.10.2019.

29. The writ petition is allowed with no order as to costs.

                         (PUNEET GUPTA)                   (PANKAJ MITHAL)
                                  JUDGE                    CHIEF JUSTICE
JAMMU
 23.12.2021
Tilak

              Whether the order is speaking ? :    Yes.
              Whether the order is reportable? :   Yes.