Jammu & Kashmir High Court - Srinagar Bench
Villagers Of Kanli-Bagh ... vs Union Territory Of J&K And Others on 15 February, 2022
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Reserved on : 11.08.2021
Pronounced on : 15.02.2022
CJ Court
Case: OWP No. 2084 of 2018
Villagers of Kanli-Bagh Baramulla
...Petitioners(s)
Through: Mr. B.A.Misri, Advocate
v/s
Union Territory of J&K and Others .... Respondent(s)
Through: Mr. D.C.Raina, Advocate General
with Ms. Asifa Padroo, AAG for
respondent Nos. 1 to 4
Mr. Sajad A. Geelani, Dy. AG for
respondent No. 5
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
PANKAJ MITHAL, CJ:
01. The petitioners are residents of village Kanli Bagh, Baramulla. They
have invoked the writ jurisdiction of this Court for the quashing of the entire
acquisition proceedings in respect of about 150 kanals and 03 marlas of the
land which was notified for acquisition for the public purpose of establishing a
Housing Colony at Sangri in Baramulla.
02. The petitioners have also prayed that the tentative award dated
17.03.1998 be also quashed and a writ of mandamus be issued to the
respondents to initiate fresh proceedings for acquisition of the aforesaid land
and to pay compensation as per the prevailing market rate.
03. A further prayer has been made directing the respondents to pay rent
@ ₹ 10,000/- per kanal per year for the aforesaid land as the possession of it
was taken over pursuant to the notifications to acquire the above land.
04. In the writ petition, as no counter affidavit was filed by any of the
respondents, the court in compelling circumstances issued an ad interim
mandamus commanding the respondents, specially the Assistant Commissioner
(Revenue), Baramulla to frame the final award in accordance with law in
respect of the above acquisition within a period of one month or to show cause
by filing counter affidavit within the same period.
05. Briefly stated, the petitioners have preferred this writ petition alleging
that by a notification dated 03.02.1978, an area of 220 kanals and 18 marlas
was notified for acquisition. Subsequently, vide corrigendum dated
20.01.1991/1992, the area was reduced to 150 kanals and 03 marlas. In respect
of the said acquisition, a final declaration under Section 6 of the Land
Acquisition Act (hereinafter referred to as 'the Act') was issued on 27.05.1978.
The Collector, Housing and Urban Development Department, Srinagar
prepared a draft award on 15.10.1982, in terms of which a tentative award was
issued on 17.03.1998 directing for payment of compensation @ ₹ 5,000/- per
kanal with 15% Jabrana (solatium). On the aforesaid amount, simple interest @
4% was directed to be paid from July 1978 to July 1985/1995, probably for the
period of possession but till date no final award has been pronounced as is
mandatory under Section 11 of the Act for completing the acquisition
proceedings.
06. It is important to note that the petitioners have previously filed OWP No.
613 of 2003, villagers of Kanlibagh vs. State and Others, for issuing a writ in
the nature of mandamus commanding the State respondents to initiate fresh
acquisition proceedings in respect of the aforesaid land and to pay
compensation to the petitioners at the prevailing market rate of ₹ 5.00 lakhs to
₹ 6.00 lakhs per kanal along with 15% solatium and 18% interest.
07. In the said writ petition, no response was filed by the State-respondents
and the Court had to finally decide the said writ petition without having the
version of the State vide its judgment and order dated 09.12.2009 with the
direction to the State-respondents to look into the matter in accordance with the
mandate of the statute occupying the field and consider the claim of the
petitioners in the facts of the case in accordance with the mandate of the statute
and to take a decision thereon within a period of two months from the date the
copy of the judgment is served on the State-respondents.
08. When no consideration was accorded by the State-respondents to the
grievance of the petitioners pursuant to the above directions, the petitioners
initiated contempt proceedings.
09. In the said contempt petition No. 195 of 2010, statement of facts was
filed on behalf of the respondents, wherein it was admitted that the aforesaid
land was notified for acquisition in 1978 and a tentative award was issued on
17.03.1998 @ ₹ 5,000/- per kanal. The award has not been approved by the
Divisional Commissioner and, as such, a request has again been made on
09.07.2011 to expedite the approval and as soon as the approval from the
Government is received, necessary further action will be taken accordingly.
10. The said contempt petition was finally disposed of vide order dated
28.12.2017 in view of the statement made by the counsel for the State that the
consideration order in terms of the judgment and order dated 09.12.2011
passed in OWP No. 613 of 2003 would be passed on or before 09.02.2018. The
consideration order was passed highly belatedly on 15.03.2018 but again
without relief to the petitioners despite accepting everything so as to await the
approval to the award by the Government.
11. It is in above backdrop that the present writ petition has been filed
wherein neither any counter affidavit has been filed nor the final award has
been passed despite issuance of interim mandamus.
12. In the absence of the counter affidavit of the respondents, there is no
defence of the State before us. Therefore, we made it clear to the learned
counsel appearing for the respondents that we would be deciding the petition
on the basis of the averments made in the writ petition and the documents
enclosed with it.
13. The writ petition contains more or less all necessary documents
including the stand which was taken by the State authorities in the contempt
proceedings as also in the consideration order dated 15.03.2018 which was
ultimately passed pursuant to the judgment and order dated 09.12.2009 passed
in the earlier writ petition, OWP No. 613 of 2003 of the petitioners.
14. It is important to note that right to possess and occupy land/property
used to be a fundamental right and is still a constitutional right akin to a
fundamental right. It has been recognized even as a basic human right. In view
of Article 300 A of the Constitution of India, no person can be deprived of his
property otherwise by following the due process of law. Therefore, the non-
payment of the compensation as provided under the statutes amounts to
depriving the person of his right to the property.
15. In the above backdrop, the only issue which crops up for our
consideration is whether the respondents can sleep over the matter without
pronouncing a final award depriving the petitioners from the right to receive
fair and reasonable compensation for the acquired land.
16. There is no dispute to the fact that 150 kanals and 03 marlas of the land
in the village was notified for acquisition on 03.02.1978 and was finally
acquired on 27.05.1978 with the issuance of a declaration under Section 6 of
the Act. In respect of the said acquisition, only a tentative award was made on
17.03.1998 but till date no final award has been pronounced with the result the
villagers have not been paid the due compensation.
17. It is relevant to mention here that the possession of the land was taken
over by the respondents and, as such, the villagers were divested of the land
which came to be vested in the State. In the ordinary course, in view of Section
11 B of the Act, the land acquisition proceedings would have lapsed for want
of final award within two years of the date of declaration, i.e., 27.05.1978 but
for the fact that the urgency provisions were invoked and the possession of the
land had been taken over on account of which the land had vested in the State.
The land vested in the State cannot be divested and, as such, the proceedings
for acquisition attains finality and would not lapse and permit de-notification of
the acquisition proceedings. In such a situation, the respondents are left with no
option but to make a final award as mandated by Section 11 of the Act.
18. The respondents cannot deprive the land holders from the right to
receive fair and reasonable compensation for their acquired land indefinitely
by not making a final award. It is for this reason that the court while disposing
of the earlier writ petition of the petitioners instead of directing to initiate fresh
acquisition proceedings and for payment of compensation @ ₹ 5.00 lakhs to
₹ 6.00 Lakhs per kanal as prayed therein, directed that the respondents would
look into the matter and would act in accordance with the mandate of statutes
so as to take a final decision within a time bound period.
19. In pursuance of the said order, the consideration order has been passed
on 15.03.2018 by the Deputy Commissioner, Baramulla. The said order clearly
states that the land was notified for acquisition and was finally acquired with
the issuance of declaration under Section 6 of the Act. Since the urgency
provisions were invoked, notice for possession was given even before the
award was made. It also states that as per the tentative award, part payment of
the compensation to the extent of 75% has been made by the Collector Land
Acquisition (Housing and Urban Development Department) to the tenure
holders. Accordingly, as the final award has not been made, the Collector,
Housing and Urban Development Department, Srinagar is directed to frame the
final award as per the Act and the same may be submitted before the competent
authority for approval. The above task should be completed within a period of
seven days. The relevant part of the above order is reproduced herein below :-
"In view of the above circumstances and in compliance of
the Hon'ble High courts orders, Collector Housing and
Urban Development Department, Srinagar is hereby
directed to frame the Final Award as per the Land
Acquisition Act and same be submitted before competent
authority for approval with reference to the approval of the
tentative award by the competent authority as 75%
compensation has been paid by the Collector Housing and
Urban Development Department, Srinagar to the land
owners. The task should be completed within a period of 07
days."
20. It may be noted that despite the above order, no final award has been
framed and has been approved by the competent authority.
21. The letter of the Deputy Commissioner, Baramulla addressed to the
Divisional Commissioner, Kashmir dated 27.03.2010 enclosed as Annexure 'F'
to the writ petition also narrates the entire facts as have been stated earlier. In
the penultimate paragraph it states that the land acquired stands taken over by
the indenting department decades ago under the provisions of Section 17 of the
Act and 75% of the payment has been released and paid to the owners but
under protest. The acquisition stands completed except for issuance of the final
award for which the matter may be taken up by the Administrative Department
for further guidance considering the legal and financial implications.
22. One another letter dated 18.04.2015 of the Assistant Commissioner (C),
with the Divisional Commissioner, Kashmir addressed to the
Commissioner/Secretary to Government, Housing and Urban Development
Department, J&K, Jammu mentions that the land was acquired and was handed
over to the indenting department under the provisions of Section 17 of the Act.
The Collector, Housing and Urban Development Department, as per the draft
award has disbursed the amount of compensation to the extent of 75% in
respect of the land measuring 85 kanals and 02 marlas but no payment of land
measuring 22 kanals and 06 marlas of the propriety land and 42 kanals and 15
marlas of the State and Shamlat land has been made to anyone. The final award
has not been passed and that the case was taken up and reminders were sent for
the purposes of making the final award but nothing has been heard.
23. The statement of facts filed on behalf of the State-respondents in the
contempt petition, a copy of which is on record also mentions that the matter
stands submitted to the Government through Divisional Commissioner,
Kashmir to pave way for issuance of the formal award and as soon as the final
approval is received from the Government, immediate necessary action would
be taken accordingly.
24. The aforesaid facts would reveal that there is no dispute to the fact that
the land stands acquired and that its possession has been taken over and handed
over to the indenting department decades ago but till date final award has not
been passed. The villagers as such have been deprived of the proper
compensation of the acquired land which is clearly violative of the statutory
provisions of the Land Acquisition Act and Article 300 A of the Constitution
of India. It rather amounts to denial of the basic human right to the villagers for
almost about forty years.
25. In Krishna Reddy vs. Special Deputy Collector Land Acquisition, AIR
1988 SC 2123, Supreme Court while directing the statutory authorities to make
the payment of compensation at the earliest observed that a person who has
been uprooted may be facing starvation, therefore, the delayed payment may
loose the charm and utility of compensation. Thus, the compensation must be
determined and paid without loss of time.
26. It is an alarming situation that State is acquiring private land without
payment of full compensation. This kind of action or omission on the part of
the State authorities is not acceptable and cannot be allowed to continue for an
indefinite period. We deprecate such practice and expect that the State would
henceforth take all possible measures to ensure passing of an award within a
reasonable time and payment of fair compensation to the persons interested
where ever the land is acquired.
27. The acquisition proceedings in its entirety are not liable to be quashed
only for the reason that the final award in terms of the Act has not been passed
even though the statutory period for making the award has elapsed when by
virtue of Section 17 of the Act, possession of the acquired land has already
been taken and the vesting is complete. On this ground not even the tentative
award could be quashed. There is no purpose to quash it as it would merge in
the final award. There is no justification for directing to take up fresh
acquisition proceedings as the acquisition is already over. The prayer regarding
initiation of fresh proceedings for acquisition was not accepted by the Court in
the earlier round of litigation and is apparently barred on the analogy of
principles of constructive res-judicata. The relief to grant rent @
₹10,000/Kanal/year is also not admissible for the reason that under the Act
petitioners are only entitled to only monitory compensation and not anything
else.
28. In view of the above, the villagers may not be entitled to any of the
reliefs specifically claimed in the present writ petition, nonetheless, in view of
the residuary prayer to grant any other relief that may be deemed fit and
suitable for the court and the power of the court to mould the relief so as to do
justice to the parties, the court is left with no option but to make the interim
mandamus absolute by issuing a writ in the nature of mandamus commanding
the State authorities to frame and pronounce the final award in respect of the
above acquisition in accordance with the existing law within a period of three
months from the date a copy of this order is produced before the Chief
Secretary and we hope that the Chief Secretary under whom all the
departments of the State function, would take positive action in the matter and
see to it that the award as directed is passed and stiff action is taken against all
those officers, who were involved and responsible for not allowing the award
to be passed immediately after the tentative award had been prepared and
announced.
29. The villagers would be entitled to and paid compensation according to
the final award along with all statutory benefits including the interest within a
period of one month of the pronouncement of the final award after adjusting
the amount which had already been paid to them under the tentative award.
30. The writ petition is allowed with exemplary costs of ₹ 10.00 lakhs for
dragging the villagers in unnecessary litigation for decades and for depriving
them of their property without adequately compensating them for such a long
period.
1.
1.
(SANJAY DHAR) (PANKAJ MITHAL)
JUDGE CHIEF JUSTICE
Srinagar
15.02. 2022
Tilak
Whether the order is speaking? Yes
Whether the order is reportable? Yes
