Ia No. (1/2018) vs State Of J&K And Ors
2023 Latest Caselaw 604 j&K/2

                                                            Serial No. 05
                                                          Regular Cause list

       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT SRINAGAR

                           OWP No. 2247/2018
                            IA No. (1/2018)
Ghulam Rasool Raina and Ors.
                                                ..... Petitioner/Appellant(s)
Through:     Mr. Mohammad Younis Bhat, Advocate

                                    V/s
State of J&K and Ors.
                                                         .....Respondent(s)
Through:     Mr. Ilyas Laway, GA for R-1to 4.
             Mr. Mohsin Qadri, Sr. AAG for R-5 &6.

CORAM:
             Hon'ble Mr. Justice Sanjeev Kumar, Judge.
                         JUDGMENT(ORAL)

18.05.2023

1. The petitioners claim to be the lawful owners in possession of

their respective agricultural landed estate and fruit bearing trees

standing over it falling under different Khasra No.s (Shamilat Dah)

Mouza Hari Ganiwan Tehsil Kanagan District Ganderbal. The

petitioners submit that their share in the Shamliat Deh land has been

taken over the by respondents for construction of PMGSY road from

NHW to Gitchkhud without adopting due process of law.

2. The respondents, who have caused their appearance through

their counsel, have filed their reply affidavit. The stand taken by the

respondent No. 5 and 6 i.e., the Deputy Commissioner, Ganderbal,

Kashmir and Collector Land Acquisition (Assistant Commissioner

Revenue) Ganderbal, is that on the basis of an indent/request received

from Executive Engineer, PMGSY vide No. EE/PMGSY/GBL/1419-

21 dated 25th October, 2016 for acquisition of land for construction of

PMGSY road in question, notification under Section 4(1) of the J&K

Land Acquisition Act ["the Act"] was issued on 11 th May, 2018 for

acquiring land measuring 96 Kanals, 3 Marlas and 4 Sarsai in estate

Hari Ganiwan Tehsil Kangan which included the land falling in

survey No.s 491, 610 and 606. The Collector Land Acquisition,

Ganderbal, invited objections in terms of Section 5 and 5 (A) of the

Act, but the land owners and other interested persons did not file any

objections within the stipulated period.

3. The rates to be paid to the interested persons were decided in a

Private Negotiation Committee ["PNC"] meeting held on 15th

December, 2018. The Indenting department as well as the land

owners/interested persons accepted the rates fixed in the PNC

meeting. With regard to fruit bearing trees coming under the

alignment of the road, a joint survey was conducted by the

Department of PMGSY, Horticulture Department and the Revenue

Department and, accordingly, assessment was furnished to the

Collectorate by the Department of Horticulture vide its

communication No. Dev/GBL/24/2021/Gitchkhud/366/1960-61 dated

26th June, 2021. It is submitted by the respondents that pursuant to the

assement of loss on account of cutting of fruit bearing trees, 50% of

the compensation has already been released in favour of the rightful

owners/interested persons.

4. The reply of the Collector Land Acquisition, Ganderbal, in

short, is that they are committed to make the payment to the rightful

owners as per the rates fixed in PNC meeting with respect to the land

and fruit bearing trees as also the structures which have come under

the construction of the aforesaid road.

5. Learned counsel for the petitioners submit that in view of the

fair and clear stand taken by the respondents there is no reason or

justification with the Collector Land Acquisition, Ganderbal, not to

disburse the balance amount, which ought to have been paid to the

petitioners in the year 2018 itself.

6. Having considered the submissions made by the learned

counsel for the parties and having gone through the reply affidavit

filed by the Collector Land Acquisition, Ganderbal, I am of the

considered opinion that the petitioners have succeeded in establishin

that they have been deprived of their share in the Shamilat land

without payment of fair and just compensation in accordance with

law. Learned counsel for the petitioners does not join issue as to the

procedure followed by the Collector Land Acquisition, Ganderbal, in

working out the compensation payable to the petitioners, but submits

that they are duty bound to act upon their commitment made in the

PNC meeting and disburse the compensation to the rightful

owners/interested persons.

7. Be that as it may, in view of the clear stand taken by the

Collector Land Acquisition, Ganderbal, in the reply affidavit filed in

the matter, this petition is disposed of with a direction to the

respondent No. 4 to 6 to immediately and forthwith release the

amount of compensation in favour of the rightful owners/interested

persons with respect to the land, fruit trees and structures etc. in

question within a period of two months from the date a copy of this

judgment is served upon them. It is made clear that the amount shall

be payable along with the interested at the rate of 6% per annum w.e.f.

15th December, 2018, till its realisation. It is important to take on

record the statement of learned counsel for the petitioners who has

very fairly stated that the petitioners do not dispute the rates fixed in

the PNC meeting with regard to the land and the structures, and the

Department of Horticulture with regard to the fruit bearing trees.

(Sanjeev Kumar) Judge SRINAGAR:

18.05.2023 "Mir Arif"

Whether judgment is speaking: Yes/No Whether judgment is reportable: Yes/No