Khurshid Ahmad Nazki & Anr vs Ut Of J&K And Others
2023 Latest Caselaw 540 j&K/2

                                                    Sr. No.95
                                                    Regular List
     IN THE HIGH COURT OF JAMMU & KASHMIR AND
                LADAKH AT SRINAGAR


                       WP(C) No.175/2023
                       CM No.2430/2023


KHURSHID AHMAD NAZKI & ANR.                     ...PETITIONER(S)
        Through: Mr. M. M. Dar, Advocate.


                               Vs.
UT OF J&K AND OTHERS.                         ....RESPONDENT(S)

Through: Mr. Mohsin Qadiri, Sr. AAG, with Mr. Furqan Yaoob, GA, Mr. Rabinder Singh, Adv.

CORAM: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

(ORDER)(ORAL) 03.05.2023

1) The petitioners are residents of Village Mamath

Budgam and their grievance is against the notification of the

Collector, Land Acquisition, Ring Road, Budgam, issued vide

his No.DCB/LAS/016F-330/1358-67 dated 17th March,

2022, to the extent it notifies proprietary land of the

petitioners measuring 04 kanals, 14 marlas and 19 sqft.

Comprised under Survey No.37-min of Village Mamath,

Budgam, for acquisition under Section 4(1) of the J&K Land

Acquisition Act, Svt. 1990 (for short 'the Act of 1990').

Page |2

2) The short grievance projected by the petitioners is that

in the earlier notification issued on 28th of March, 2019, for

acquisition of land in Village Mamath for construction of

Ring Road in District Budgam, the land of the petitioners

was not notified. It is the allegation of the petitioners that

under the influence of respondent No.12, the alignment of

the road was changed so as to bring within acquisition the

proprietary land of the petitioners.

3) The legal point that is raised before me by learned

counsel for the petitioners is that no notification under

Section 4(1) of the Act of 1990 could have been issued in the

year 2022 for the reason that due to coming into operation

of the Jammu and Kashmir Reorganization act, 2019, the

Act of 1990 had been repealed and replaced by Right to Fair

Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, 2013 ["RFCTLARR

Act"].

4) On behalf of respondents, it is contended by Mr. Qadiri,

learned Sr. AAG, that the acquisition proceedings in respect

of subject land and the land which was subject matter of

impugned notification have been concluded and final award

passed. He, therefore, submits that even if the contention of

the petitioners is upheld, it would be difficult to turn the Page |3

clock back. To justify the issuance of impugned notification

under the Act of 1990, the learned Sr. AAG submits that the

impugned notification issued in the year 2022 was not a new

notification but was only in the shape of a corrigendum to

the Section 4(1) notification issued on 28th of March, 2019.

5) Having heard learned counsel for the parties and

perused the material on record, I am of the considered view

that the impugned notification dated 17th of March, 2022,

cannot, by any stretch of reasoning, be said to be either

extension of Section 4(1) notification issued on 28th of

March, 2019, or treated as a corrigendum thereto. The

proprietary land of the petitioners was for the first time

notified for acquisition in the year 2020 and consequently,

notification under Section 4(1) was issued on 17th March,

2022. Admittedly, the Act of 1990 stood repealed with the

coming into operation of the Jammu and Kashmir

Reorganization Act, 2019. The law which was in force on the

date the proprietary land of the petitioner was sought to be

acquired was RFCTLARR Act. In that view of the matter, I

am in agreement with learned counsel for the petitioners

that the proprietary land of the petitioners could not have

been acquired under the repealed Act.

Page |4

6) Having regard to the admitted position explained

above, this Court would have been left with no option but to

quash the entire acquisition proceedings which have

culminated into issuance of final award. However, having

regard to the fact that the land acquired is meant for

construction of a Ring Road, which is a very prestigious

project of public importance, it would not be in the interests

of justice to set the clock back and direct the respondents to

issue fresh notification for acquisition of the subject land.

7) This Court was confronted with somewhat similar

situation in OWP No.424/2018 titled 'Land Owners of

Village Suthsoo and others vs. State of J&K and others'.

What was held by this Court in the aforesaid judgment

applies to all fours to the case on hand.

8) In view of the aforesaid, this petition succeeds to the

extent that process of acquisition embarked upon by the

respondents by issuing Section 4(1) notification under the

Act of 1990 is found not tenable in law. The relevant law that

was applicable for acquisition of the proprietary land of the

petitioners in the year 2002 was RFCTLARR Act.

9) Since the acquisition proceedings in this case have

already been completed and final award passed under the

Act of 1990, which, as held hereinabove, was repealed on the Page |5

date the impugned notification was issued, as such, it would

be difficult, rather inadvisable at this stage, to set the entire

acquisition process at naught. Furthermore, most of the

villagers, whose land has been acquired in Village Mamath,

have already taken their compensation and the construction

of Ring Road is in progress. Taking que from the judgment

passed by the Division Bench of this Court in the case of

Land Owners of Village Suthsoo and others vs. State of

J&K and others (supra), the relief claimed in this petition is

modified and the respondents are directed to enhance the

compensation payable to the petitioners under the award by

20%. This would meet the ends of justice and would be a

sort of penalty to the respondents for not following the

correct provisions of law.

10) The concerned Collector shall issue the amended

award and disburse the balance compensation, if any,

payable to the petitioners, within a period of two months

from today. It is, however, made clear that the petitioners or

any of them, who is/are aggrieved of the determination of

compensation as has been notified through final award,

shall be free to seek reference under the Act of 1990. The

reference, however, shall be limited to the seeking of

enhancement of the basic compensation and the additional

compensation to the extent of 20%, as directed by this Court, Page |6

shall not be part of any dispute or debate before any forum

subordinate to this Court.

11) The petition is disposed of in the above terms.

(Sanjeev Kumar) Judge Srinagar;

03.05.2023 "Bhat Altaf, PS"

                   Whether the order is speaking:      Yes/No
                   Whether the order is reportable:    Yes/No