Union Territory Of Jk And Others vs Ghulam Mohi Ud Din Ahanger And ...
2022 Latest Caselaw 600 j&K/2

                                                               S. No. 43


HIGH COURT OF JAMMU &KASHMIR AND LADAKH
               AT SRINAGAR

                            LPA No. 5/2020

                                              Reserved on: 25.04.2022
                                           Pronounced on: 17 .05.2022

Union Territory of JK and others                         .....Appellant(s)

Through: Mr. M. A. Chashoo, AAG

      V/s
Ghulam Mohi ud din Ahanger and others                  .....Respondent(s)

Through: Mr. M. I. Qadiri, Sr. Adv. with
         Mr. Mir Naveed Gul, Adv.
         Mr. G. A. Lone, Adv. with
         Mr. Mujeeb Andrabi, Adv.

CORAM:
HON'BLE MR. JUSTICE ALI MOHAMMAD MAGREY, JUDGE
HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE

                             JUDGMENT

17.05.2022 Per Puneet-J

1. The Collector, Circular Road Project, Srinagar issued Notification

under Section 4(1) of J&K Land Acquisition Act (hereinafter referred to

as "Act") bearing endorsement No. C/CRP/LA/766-79 dated 14.09.2004

for the purposes of widening of Indira Gandhi Road at Haft Chinar

(Nursing Garh), Srinagar in pursuance to the indent issued by the

Executive Engineer, PWD (R&B Department) vide No. 15238-15297

dated 10.09.2004. The properties of the petitioners were also required to

be acquired under the Act for the purposes of the project. In pursuance to

aforesaid notification, a High Level Committee constituted by the

Government entered into negotiations with the claimants and

consequently many claimants agreed with the decision taken by the High

Powered Committee and surrendered the possession to the indenting department. However, with regard to the structures No. 02, 04 13 and 14

the negotiations were not successful and further proceedings were

undertaken by the Collector in terms of the Act. It was decided that

declaration under Section 6, 7 & 17 of the Act is to be issued as is

evident from the communication No. FC-LS/LA-2849/08 dated

05.08.2008 from Deputy Commissioner (with Financial Commissioner)

to the Commissioner/Secretary to Government, Revenue Department.

The Government then issued notification No. 323-RD of 2008 dated

16.10.2008 under Section 6, 7 & 17 of the Land Acquisition Act with a

direction to take possession of the land to be acquired subject to the

completion of all the formalities under the Act. Thereupon a notification

under Section 9 and 9A of the Act came to be issued by the Collector

vide endorsement No. DIPK-7074 dated 04.11.2008 and the interested

persons were asked to file their claims. It transpires that, later on, some of

the structures for which the notification was earlier issued were de-

notified vide notification No. C/CRP/1864-75 dated 20.11.2009 in

pursuance to the communication from the Executive Engineer (R&B)

bearing communication No. DC/104/23957-61 dated 01.08.2008. The

structures de-notified were mentioned in the de-notification notice. After

the issuance of de-notification the respondent-Collector again issued

notice in terms of Section 6 of the Act vide No. 858-64/LAC/1871 dated

11.01.2010. The notification under Section 9 and 9A of the Act also

came to be issued by the Collector vide No. C/CRP/2263-70 dated

18.11.2010. On the completion of the formalities the Collector passed the

final award on 10.12.2010 which was impugned in the writ petition.

2. The grievance raised by the petitioners in the writ petition was that

the fresh notification in terms of Section 4 of the Act was not issued

though required under the Act as there was modification of the original

acquisition notice issued under Section 4 of the Act and, therefore, all the

subsequent proceedings which took place in the matter were void ab-

initio. The award passed by the Collector was nullity.

3. The petition was contested by the respondents and the claim set up

by the petitioners was negated by the respondents through detailed reply.

The writ petition was disposed of by the learned Writ Court vide

judgment dated 20.03.2018, and the same is under challenge in the

present Appeal.

4. The perusal of the judgment reveals that the writ petition has been

decided mainly on the ground that though compulsory acquisition was

made by the respondents, yet the respondents failed to provide 80% of

the compensation assessed by the Collector before taking possession as

required under Section 17 of the Act. The court held that the said action

of Collector is as an illegal exercise of the power and thus vitiates the

award.

5. The Writ Court while relying upon the judgment passed by the

learned Single Judge (one of us Magrey J.) of this Court in OWP 47/2013

titled Mohammad Ashraf Sofi & Ors v. State and Ors dated 09.12.2013

and that the judgment has been complied with by the respondents held

the case of present petitioners akin to the case of the petitioners in OWP

47/2013 (supra), passed by the Coordinate Bench, granted the relief in

the writ petition as under:-

41. "The cumulative effect of all that has been said and done above, is that the writ petition on hand is disposed of, and impugned Award dated 10.12.2010 bearing endorsement no.C/CRP/632-40 issued by the Collector, Circular Road Project, Srinagar, is quashed. The respondents 3 to 7 are directed to submit the case of the petitioners to the High Level Committee, headed by the Divisional Commissioner,

Kashmir, for fixation and payment of adequate compensation for the building structures and in terms of the package related to such structure in the form of providing residential plots for dislocated families. The respondents shall also pay compensation in lieu of the shops acquired from the petitioners on the analogy of similarly situated shopkeepers. The petitioners' case shall be submitted by respondents 3 to 7 to the High Level Committee within a period of three weeks from the date copy of this order is served upon the Deputy Commissioner, Srinagar and the Collector, Circular Road Project, Srinagar. The Divisional Commissioner, Kashmir - respondent no.2, shall take a decision in light of the directions for payment of adequate compensation and for providing the plot of the land in favour of the petitioners within a period of two months thereafter".

6. The appellants herein have challenged the judgment of the writ

court on the ground that the Writ Court did not appreciate the facts of the

case in their right perspective and, more particularly, the fact that the

final award has been passed by the competent authority with complete

application of mind. The award once passed could not be challenged by

the petitioners in the writ petition. On the aforesaid ground, the judgment

impugned is sought to be set aside.

7. Mr. M. A. Chashoo, learned AAG appearing on behalf of the

appellants has reiterated what has been pleaded in the appeal. Learned

AAG has argued that notification issued under Section 4 of the Act was

not required to be issued again as no fresh acquisition was being made

and, infact, some portion of the property of the petitioners was only de-

notified. No prejudice was caused to the petitioners for want of the notice

under Section 4 of the Act. It is further submitted that the petitioners had

participated in the negotiations earlier and had even presented themselves

after the de-notification of the properties which took place in the matter

resulting in passing of the final award by the Collector on 10.12.2010.

Once the award was passed, there was no occasion for the petitioners to

challenge the same, more so, when there was no illegality in the

proceedings initiated in the matter. The written arguments also stand filed

by the appellants.

8. Mr. M. I. Qadiri, learned Senior Counsel and Mr. G. A Lone,

learned counsel appearing for the respondents have supported the

judgment passed by the learned Writ Court. The specific argument of the

respondents is that, in view of the admitted fact that no fresh notice under

Section 4 of the Act was issued after the de-notification of the earlier

notice, the subsequent proceedings taken out by the Collector were illegal

and the award passed by the Collector had no force in law. The

petitioners were not given statutory period to present their objections

before the Collector as mandated under the Act and were deprived of

their right to present themselves in an effective manner before the

Collector though the notifications under Section 6, 9 and 9A of the Act

were again issued by the Collector. The precise submission on behalf of

the respondents is that issuance of notice under Section 4 of the Act was

sin qua non before proceeding further under the Act after de-notification

notice was issued by the Collector qua the properties of which the

mention was made in the de-notification notice. Indeed, the learned

counsels for the respondents have supported the judgment impugned in

the present LPA.

9. It is profitable to mention herein that the petitioners in the writ

petition had prayed for quashment of the award dated 10.12.2010, passed

by the Collector, and fresh notifications issued under Section 6, 9, & 9A

of the Land Acquisition Act and sought direction to provide the houses to

the petitioners and as per the decision taken in terms of two meetings

held on 15.03.2006 and 03.04.2006 under the Chairmanship of Divisional

Commissioner, Kashmir. As mentioned above, the ground taken by the

petitioners in the writ petition while challenging the award was confined

to non-issuance of fresh notification under Section 4 of the Act after

some of the structures were de-notified after issuance of notice under

Section 4 of the Act. This Court after going through the judgment of the

Writ Court finds that the Writ Court has decided the writ petition on the

ground of non-compliance of Section 17 of the Act which was not

specifically taken by the petitioners in the writ petition. The Writ Court

did not deal with the issue of Section 4 of the Act as agitated by the

petitioners in the writ petition. There is no finding by the Writ Court as to

whether there was any requirement for issuance of fresh notice in terms

of Section 4 of the Act in the facts and circumstances of the case after de-

notification and the consequences which ought to follow in case

compliance of Section 4 was to be held compulsory. Although the Writ

Court had detailed out the facts of the case in the judgment, in the

opinion of this Court, the learned Writ Court has not addressed the main

issue on the basis of which the writ petition was filed. The court also

appears to have not delved into the impact of non-payment of

compensation assessed by the Collector though the structures of the

petitioners came to be demolished only after more than one year of

passing of the award by the Collector. It may be mentioned that the

claimants-petitioners are stated to have received by now the

compensation assessed by the Collector in pursuance to the award passed

on 10.12.2010 though the learned counsel for the claimants submits that

the compensation was received under protest.

10. The learned Single Judge has failed to record finding on the main

issue, as observed above, in the writ petition. Though the arguments on

legal aspects of the case have been made yet this court is of the opinion

that the legal issues in conjunction with factual aspects of the matter are

required to be decided in the writ petition by the Writ Court. This Court

does not intend to express any opinion as far as the relief granted by the

Writ Court on the basis of the judgment passed in case of Mohammad

Ashraf Sofi (supra) is concerned as the matter has been remanded to the

Writ Court for fresh consideration.

11. Learned Counsel for the parties have referred to the judgments as

per their respective stand taken during the course of arguments.

However, the court need not refer the same keeping in view the fact that

this Court has held that the Writ Court has not addressed the issue which

was primarily raised in the writ petition and was required to be decided

by the Writ Court.

12. Keeping in view the discussion made above, the judgment

impugned is set aside. Accordingly, the learned Single Bench hearing

OWP matters is directed to hear the matter afresh after summer vacations

and decide the petition keeping in view the contentions raised in the writ

petition.

13. Record produced by Mr. M. A. Chashoo, learned AAG is returned

to him in the open court.

               (PUNEET GUPTA)             (ALI MOHAMMAD MAGREY)
                  JUDGE                          JUDGE


SRINAGAR
17.05.2022
"Amir"