Jammu & Kashmir High Court - Srinagar Bench
Mohammad Shafi Makhdoomi & Anr vs State Of Jk & Ors on 29 March, 2021
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
Reserved On: 25th of March, 2021
Pronounced On: 29th of March, 2021
OWP No.886/2013
IA No.1414/2013
Mohammad Shafi Makhdoomi & Anr.
... Petitioner(s)
Through: -
Mr Altaf Haqani, Senior Advocate with
Mr Shakir Haqani, Advocate.
V/s
State of JK & Ors.
... Respondent(s)
Through: -
Mr B. A. Dar, Sr. AAG.
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge.
Hon'ble Mr Justice Puneet Gupta, Judge.
(JUDGMENT)
{Per Magrey; J}:
01. The petitioners have knocked at the portals of this Court in
granting them the following relief(s):
"a) A writ or direction including one in the nature of
certiorari, quashing the acquisition proceedings held by the
respondents, including the notification contained in Annexure P2, P5
and P7 and all other notifications as may have been issued by the
respondents in the matter.
b) A writ, order or direction including one in the nature of
Mandamus, commanding upon the respondents to stop forthwith their
constructional activities on the land in question and desist from
further altering the nature and character of the land in question, till
the procedure provided by law is duly followed and the petitioners are
awarded the compensation as due to them in accordance with law.
TAHIR MANZOOR BHAT
2021.03.29 16:48
I attest to the accuracy and
integrity of this document
OWP No.886/2013;
IA No.1414/2013
c) A writ, order or direction including one in the nature of
Mandamus, commanding upon the respondents to assess the
compensation payable to the petitioners as per the market rate taking
into consideration the commercial value of the properties in question,
after hearing the petitioners and pay them same in accordance with
law and with a further direction upon the respondents to allot suitable
quantity of land to the petitioners at an appropriate place.
d) Any other writ, order or direction which the Hon'ble
Court may deem fit and proper in the facts and circumstances of the
case may also be passed in favour of the petitioner and against the
respondents."
02. The case set up by the petitioners is that they claim to be owners
in possession of a plot of land measuring 01 Kanal, 19 Marlas and 228 sft.,
along with a double storied house and single storied Kitchen situate at
Buchwara, Srinagar, comprising under Survey No.1066/799/219-min. The
said landed property is stated to have been purchased by the petitioners from
its erstwhile owner, namely, Shri Hari Krishen Mirza S/o Pt. Tara Chand
Mirza R/o Karan Nagar, Srinagar vide a sale deed dated 7th of May, 1973 duly
registered on 2nd of June, 1973, whereafter the same stands mutated in the
name of the petitioners in the relevant revenue records under Mutation No.
1423 dated 3rd of July, 1985. Besides the petitioners also claim to be in
possession of a piece of land measuring 04 Marlas and 257 sft., comprised
under Survey Nos. 220 min and 222-min, shown in the revenue records in the
name of the Sarkar. This entire landed property is contended to have been
enclosed by the petitioners by concrete brick walling. It is pleaded that
apparently a notification under Section 4(1) of the J&K Land Acquisition Act
was issued by the respondent No.6 under No. DCS/LAC/1916/956-71 dated
22nd of December, 2011 for acquisition of the above landed property,
TAHIR MANZOOR BHAT
2021.03.29 16:48
I attest to the accuracy and
integrity of this document
OWP No.886/2013;
IA No.1414/2013
however, no such notification was published by the respondents in the
Government Gazette. It is further contended that due to non-publication of the
aforesaid notification in the Government Gazette, they remained completely
unaware about the issuance of such notification. It is further stated that during
the tourist season with effect from May to November every year, the
petitioners have been putting the said properties for commercial use by letting
the same to tourists through local Agents. Therefore, as stated, in such
circumstances, coupled with non-communication of any information by the
respondents qua the acquisition proceedings initiated by them, the petitioners
were neither associated in the private negotiation proceedings as claimed by
the respondents to have been undertaken on 11th of February, 2011 or the
issuance of the notifications under Sections 6 and 7 vide No.
DCS/LAC/1916/1367-72 dated 24th of February, 2012 or a notification under
Section 9 and 9(A) stated to have been issued vide No. DCS/LAC/1916/1394-
1400 dated 25th of February, 2012. The petitioners, as stated, for the first time
acquired the knowledge of the aforesaid properties having been brought under
acquisition proceedings when they found the respondent No.7/ Contractor
appointed by the respondents having already entered in the premises of the
properties of the petitioners and demolished the double storied house and the
single storied kitchen existing thereon alongwith the moveable assets,
furniture, fixtures and furnishings, etc., which kept there by the petitioners.
Thereafter, the petitioners claim to have immediately approached the
respondents for ascertaining the reason of forcible taking over of the
properties by them and its demolition, moreso, when no notification for taking
over of the possession had been issued and when no proceedings of the
TAHIR MANZOOR BHAT
2021.03.29 16:48
I attest to the accuracy and
integrity of this document
OWP No.886/2013;
IA No.1414/2013
determination of the rates of compensation for acquisition had been
undertaken. Consequently, the office of respondent No.6, in terms of
communication No. DCS/LAC/1916/919 dated 30th of October, 2012,
approached the respondent-Executive Engineer for ascertaining as to how the
work had been started without any final award having been issued and the
property being handed over to the intending department. During the course of
enquiry proceedings, the petitioners are stated to have discovered that the
relevant contract for construction of Community Centre on the land in
question has already been issued by respondent No.5 to respondent No.7 in
terms of communication No. 11546-50 dated 3rd of September, 2012.
Subsequently, it is contended that the respondents referred the matter to
Tehsildar, South for demarcation of the land under norms and submission of
report thereof. It is submitted that based on the report of measurement made
by the Tehsildar, the respondents proceeded to issue a corrigendum to notice
under Section 4 of the Land Acquisition Act under endorsement No.
DCS/LAC/1916/1306-21 dated 2nd of February, 20132. In terms of the said
corrigendum, while rectifying the errors as had been committed in terms of
the initial notification under Section 4 dated 22nd of December, 2011, the
respondents are stated to have again proceeded to reflect the land in question
incorrectly by mentioning therein the land owned by the petitioners as 1
Kanal, 15 Marlas and 228 sft under Survey No.1066/799/2019 and a parcel of
land as measuring 8 Marlas, 197 sft under Survey No. 220-min owned by
Sarkar and 60 sft as proprietary land of Shri Hari Krishen Mirza. In terms of
the said notification/ corrigendum, the respondents sought for objections to
changes brought in the proposed acquisition, in respect thereto the petitioners
TAHIR MANZOOR BHAT
2021.03.29 16:48
I attest to the accuracy and
integrity of this document
OWP No.886/2013;
IA No.1414/2013
filed their detailed objections, ascertaining to be the owners of the land
measuring 2 Kanals, 4 Marlas and 213 sft, duly fenced. These objections of th
petitioners were, however, not considered at all by the respondents, who, on
the contrary, continued to hold the entire landed property unauthorizedly
without issuing any notification for possession or conducting any enquiry for
making of any award. Despite the fact that the dispute with regard to
ownership of the land measuring 8 Marlas and 197 sft, falling under Survey
No.220-min and a portion of the land measuring 60 sft, under Survey no.222-
min, is still left to be resolved and that the rate of compensation of the land
has not been fixed and no enquiry in regard thereto has been held nor any
award has been made, the respondents have continued to hold the possession
of the land in question and carry out their constructional activities thereon
through the Contractor/ respondent No.7. It is stated that the respondent No.7,
acting at the instance of respondents 4 and 5 as also the respondent No.6, has
engaged huge number of men and machinery on the property in question,
besides having completely demolished the double storied house and the single
storied kitchen existing thereon. The respondents, as stated, have completely
demolished the brick walling as well as was existing around the land in
question. In the light of this factual discourse, the petitioners contend that the
procedure prescribed in the J&K Land Acquisition Act has been given a
complete go-bye by the respondents while forcefully acquiring the property
of the petitioners.
03. Mr Altaf Haqani, the learned Senior Counsel, representing the
petitioners, submitted that impugned action of the respondents in entering into
TAHIR MANZOOR BHAT
2021.03.29 16:48
I attest to the accuracy and
integrity of this document
OWP No.886/2013;
IA No.1414/2013
the properties of the petitioners, demolishing the construction(s) existing
thereon and conducting excavation of the land is illegal, unconstitutional and
arbitrary, thereby violating the fundamental right of the petitioners to hold and
enjoy property. It is argued that the entire action initiated by the respondents
is contrary to the mandate of law provided by the J&K Land Acquisition Act
inasmuch as the land has not been demarcated, marked and measured in
accordance with law. Mr Haqani submits that the respondents have entered
into the possession of the land of the petitioners without any authority and, in
the process, have altered the nature and character of the land to the prejudice
of the petitioners without granting them any chance to establish their case for
proper compensation. The learned Senior counsel pleads that the respondents
have not, at all, followed the mandate of the J&K Land Acquisition Act
governing the process of acquisition of properties for any public purpose in
Jammu and Kashmir. It is contended that the petitioners have been
representing before the respondents for seeking redressal of their grievances,
as agitated herein this petition, but the respondents have not made any award
nor have they paid any compensation to the petitioners.
04. Objections stand filed on behalf of the respondents.
05. In their objections, the respondents 1 to 3 and 6 have stated that
there is nothing wrong with the proceedings initiated by the respondents in
lieu of acquiring the land in question. It is further submitted that the
respondents have initiated the acquisition proceedings within the four corners
TAHIR MANZOOR BHAT
2021.03.29 16:48
I attest to the accuracy and
integrity of this document
OWP No.886/2013;
IA No.1414/2013
of the law as per the Land Acquisition Act, including issuance of notifications
under Sections 4, 5, 6, 7 and 9 of the Land Acquisition Act.
06. Respondents 4 and 5, in their objections, have stated that the site
was identified by the Collector concerned and notice under Section 4 of the
J&K Land Acquisition Act was issued by the Collector vide letter dated 22nd
of October, 2011. It is pleaded that a PNC meeting was held on 11th of
February, 2012 under the Chairmanship of District Development
Commissioner, Srinagar, wherein the land owner(s) was/ were not present.
The Collector, as stated, was directed to process the case under compulsory
mode of acquisition @ Rs.40.00 lacs per Kanal as per the Stamp Act rates and
the work was allotted to respondent No.7 after the tenders were floated vide
NIT dated 9th of June, 2012.
07. In their Rejoinder, the petitioners have contended that the
notifications under challenge in the Writ petition are ultra vires the Statute
having been issued in gross violation of the mandate of law contained in J&K
Land Acquisition Act. It is stated that the said notifications are infested with
grave legal errors, besides violating the fundamental right to property
available to the petitioners. It is pleaded that, admittedly, the corrigendum
dated 2nd of February, 2013, amending the notification dated 27th of
December, 2011, was not only issued subsequent to tentative award dated 14th
of March, 2012, but the same was also not published in the local newspapers
as required under law.
TAHIR MANZOOR BHAT
2021.03.29 16:48
I attest to the accuracy and
integrity of this document
OWP No.886/2013;
IA No.1414/2013
08. We have heard the learned counsel for the parties and have also
gone through the record of the case as made available before us.
09. We, at the very outset, would like to mention here that right to
hold immovable property continues to be a fundamental right in Jammu and
Kashmir. It is well settled legal position that no person shall be deprived of
his/ her property, except in accordance with the procedure prescribed under
law and that no property shall be compulsorily acquired or requisitioned for
any public purpose, save by authority of law. In this behalf, in Jammu and
Kashmir, it is the J&K Land Acquisition Act which authorizes for compulsory
acquisition of the immovable property for any public purpose.
10. In the given facts and circumstances of the case on hand and upon
going through the relevant record, it appears that the mandate of Section 4(1)
of the J&K Land Acquisition Act has not been followed by the respondents
while acquiring the property of the petitioners, inasmuch as, admittedly, the
notification has not been published in two daily Newspapers having wide
circulation. There thus, is clear breach of mandate of Section 4(1) of the Land
Acquisition Act.
11. Apart from the above, in the process of proposed acquisition of
property, one of the fundamental issues of legal importance, in terms
of Section 4(2) of the Land Acquisition Act, is that after the Collector
concerned notifies any land in the manner prescribed under Section 4(1),
being needed or likely to be needed for any public purpose, it only then
becomes lawful for any Officer/Official, either generally or specially
TAHIR MANZOOR BHAT
2021.03.29 16:48
I attest to the accuracy and
integrity of this document
OWP No.886/2013;
IA No.1414/2013
authorized by the Government in this behalf, to enter upon the said land. The
Officer/ Official, in terms of the J&K Land Acquisition Act, can enter into the
land proposed to be acquired only after notification is issued and published in
terms of Section 4(1) of the Land Acquisition Act. Seemingly, in the present
case, no notification has not been published in terms of Section 4(1) of the
Land Acquisition Act, meaning thereby that no Officer/Official will thus,
have any legal right to enter upon the land which is proposed to be acquired.
Moreover, when there is non-compliance of statutory provisions which affects
the fundamental right of a person to hold the immovable property, the
acquisition proceedings are rendered illegal and unconstitutional.
12. The purpose of publication of the notification in the process of
acquiring any private property for public purpose, as is mandated by the J&K
Land Acquisition Act, is twofold, first, to ensure that adequate publicity is
given so that the landowners and persons interested will have an adequate
opportunity to file their objections and, second, to give the landowners/
occupants a notice that it shall be lawful for any Officer/ official authorized
by the Government to carry out the activities enumerated in the J&K Land
Acquisition Act. In the present case, it is clear that both the aforesaid objects
have been defeated by the respondents while initiating the process of
acquiring the property of the petitioners, thereby violating the very mandate
of the scheme of the Act. In this context, it can quite safely that breach of
provisions of the J&K Land Acquisition Act has affected the fundamental
right of the petitioners guaranteed to them under Article 19(f) and 31 of the
Constitution of India.
TAHIR MANZOOR BHAT
2021.03.29 16:48
I attest to the accuracy and
integrity of this document
OWP No.886/2013;
IA No.1414/2013
13. While taking the view as taken hereinabove, we are supported by
a judicial dictum rendered by the Division Bench of this Court reported in
'Shankar Dass & Ors. v. State & Ors.; 2012 (2) JKJ 43 (HC)'.
14. For the foregoing reasons, this petition is allowed and, by a 'Writ
of Certiorari', the notification issued under Section 4(1) of the J&K Land
Acquisition Act, alongwith any other subsequent notification(s) issued in this
behalf, including draft award, if any, are quashed. The respondents, by a 'Writ
of Mandamus', are directed to initiate fresh process for acquisition of land
which is subject matter of this Writ petition in accordance with the law and
the rules governing the subject to ensure adequate compensation to the
petitioners.
15. Writ petition disposed of as above, along with the connected
CM(s).
16. Records be returned with utmost dispatch and against proper
receipt through Mr Dar, learned Senior Additional Advocate General.
(Puneet Gupta) (Ali Mohammad Magrey)
Judge Judge
SRINAGAR
March 29th, 2021
"TAHIR"
i. Whether the Judgment is reportable? Yes/ No.
ii. Whether the Judgment is speaking? Yes/ No.
TAHIR MANZOOR BHAT
2021.03.29 16:48
I attest to the accuracy and
integrity of this document
