J&K Housing Board Through Its ... vs Raj Ali
2023 Latest Caselaw 2179 j&K

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU
                           Reserved on: 20.09.2023
                          Pronounced on: 06.10.2023
                        LPAOW No.1/2017

1. J&K Housing Board through its Managing Director, Green Belt
   Park Gandhi Nagar, Jammu
2. Collector land Acquisition, J&K Housing Board Green Belt Park
   Gandhi Nagar, Jammu
                                                     ...Appellant(s)

                        Through:- Mr. S.S.Nanda, Advocate
      V/s
1.    Raj Ali S/o Munshi R/o Meen Charkan Tehsil & District Samba
2.    Mohd. Sharief S/o Munshi R/o Meen Charkan Tehsil & District
      Samba
3.    Mohd. Yaqoob S/o Munshi R/o Meen Charkan Tehsil & District
      Samba
4.    Farooq Mohd. S/o Munshi R/o Meen Charkan Tehsil & District
      Samba
                                                ......Respondents
                        Through:- Mr. V.R.Wazir, Sr. Advocate with
                                   Mr. Neeraj Magotra, Advocate
5.    State through Commissioner Secretary Revenue Department
      Govt. of J&K Civil Secretariat, Jammu

                                          ...Proforma Respondent

C/w
                        LPAOW No.2/2017

1. J&K Housing Board through its Managing Director, Green Belt
   Park Gandhi Nagar, Jammu
2. Collector land Acquisition, J&K Housing Board Green Belt Park
   Gandhi Nagar, Jammu
                                                    ...Appellant(s)

                        Through:- Mr. S.S.Nanda, Advocate
      V/S
 1.    Gandharav Singh S/o Saroop Singh R/o Village Meen Charkan
      Tehsil & District Samba
2.    Suram Singh S/o Saroop Singh R/o Village Meen Charkan
      Tehsil & District Samba
3.    Parduman Singh S/o Zalim Singh R/o Village Meen Charkan
      Tehsil & District Samba
4.    Bharaf Singh S/o Narsingh Dass R/o Village Meen Charkan
      Tehsil & District Samba
5.    Bheekam Singh S/o Narsingh Dass R/o Village Meen Charkan
      Tehsil & District Samba
6.    Janak Singh S/o Narsingh Dass R/o Village Meen Charkan
      Tehsil & District Samba
7.    Balbir Singh S/o Narsingh Dass R/o Village Meen Charkan
      Tehsil & District Samba
8.    Ajit Singh S/o Sh. Mangat Singh Singh R/o Village Meen
      Charkan Tehsil & District Samba
9.    Bikram Singh S/o Mangat Singh R/o Village Meen Charkan
      Tehsil & District Samba
10.   Bishan Singh S/o Ishar Singh R/o Village Meen Charkan Tehsil
      & District Samba
11.   Arjan Singh S/o Ishar Singh R/o Village Meen Charkan Tehsil &
      District Samba
12.   Dhruv Singh S/o Ishar Singh R/o Village Meen Charkan Tehsil
      & District Samba
13.   Balwan Singh S/o Ishar Singh R/o Village Meen Charkan Tehsil
      & District Samba
                                  ...Non-Appellants/Respondent(s)

                       Through:- Mr. V.R.Wazir, Sr. Advocate with
                                 Mr. Neeraj Magotra, Advocate

14.   State through Commissioner Secretary Revenue Department
      Govt. of J&K Civil Secretariat, Jammu
15.   Commissioner Secretary Housing Urban Development
      Department, Govt. of J&K Civil Secretariat, Jammu.
16.   Deputy Commissioner, Samba

                                               .....Proforma respondents




                             2       LPAOW NO.1/2017 c/w LPAOW NOs.2/2017 & 3/2017
                         LPAOW No.3/2017

1. J&K Housing Board through its Managing Director, Green Belt
   Park Gandhi Nagar, Jammu
2. Collector land Acquisition, J&K Housing Board Green Belt Park
   Gandhi Nagar, Jammu
                                                    ...Appellant(s)

                        Through:- Mr. S.S.Nanda, Advocate
      V/S
1.    Puran Singh S/o Sh. Basant Singh R/o Meen Charkan Tehsil &
      District Samba
2.    Swaran Singh S/o late Sh. Shiv Ram Singh R/o Meen Charkan
      Tehsil & District Samba
3.    Anchal Singh S/o Late Sh. Shiv Ram Singh R/o Meen Charkan
      Tehsil & District Samba
4.    Angrez singh S/o Late Sh. Shiv Ram Singh R/o Meen Charkan
      Tehsil & District Samba
5.    Jagdish Singh S/o Late Sh. Shiv Ram Singh R/o Meen Charkan
      Tehsil & District Samba
6.    Subash Singh S/o Late Sh. Dhayan Singh R/o Meen Charkan
      Tehsil & District Samba
7.    Dalbir Singh S/o Late Sh. Dhayan Singh R/o Meen Charkan
      Tehsil & District Samba
8.    Jeevan Lata D/o Sh. Gian Singh C/o Sansar Singh R/o Meen
      Charkan Tehsil & District Samba
9.    Guddi Devi Wd/o Sh. Karan Singh R/o Meen Charkan Tehsil &
      District Samba
10.   Ranjit Singh S/o Late Joginder Singh R/o Meen Charkan Tehsil
      & District Samba
11.   Pawan Singh S/o Late Joginder Singh R/o Meen Charkan Tehsil
      & District Samba
12.   Kamala Devi Wd/o Late Joginder Singh R/o Meen Charkan
      Tehsil & District Samba
                                  ...Non-Appellants/Respondent(s)

                        Through:- Mr. V.R.Wazir, Sr. Advocate with
                                  Mr. Neeraj Magotra, Advocate

13.   State through Commissioner Secretary Revenue Department
      Govt. of J&K Civil Secretariat, Jammu




                             3        LPAOW NO.1/2017 c/w LPAOW NOs.2/2017 & 3/2017
 14.   Commission    Secretary    Housing      Urban    Development
      Department, Govt. of J&K Civil Secretariat, Jammu.
15.   Deputy Commissioner, Samba
                                                .....Proforma respondents
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
       HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE

                               JUDGMENT

Sanjeev Kumar-J

1. This intra court appeal under Clause 12 of the Letters Patent is

directed against a judgment dated 25th October, 2016 passed by a

learned Single Judge of this Court [―the Writ Court‖] in OWP

No.733/2013 titled Raj Ali and others v. State of J&K and

others, whereby the writ petition filed by the respondent Nos.1

to 04 (hereinafter referred to as ―the writ petitioners‖, for

convenience) has been allowed and the acquisition proceedings

initiated by the appellant No.2 on the request of the appellant

No.1 under the State Land Acquisition Act, Svt. 1990 (1934

A.D.) [―State Land Acquisition Act‖] have been quashed and the

appellants left free to proceed with the land acquisition

proceedings after complying with the procedure prescribed under

Sections 39 to 42 of the State Land Acquisition Act. OWP Nos.

850/2013 & 1537/2013 titled Puran Singh and others v. State

of J&K and others and Gandharav Singh and others v. State

of J&K and others also stand allowed by the Writ Court in

terms of the order passed in OWP No.733/2013 for which the

4 LPAOW NO.1/2017 c/w LPAOW NOs.2/2017 & 3/2017 appellants have filed two separate writ appeals i.e. LPAOW

Nos.2/2017 & 3/2017. We have taken up all these appeals for

disposal together by this common judgment.

2. Before we take up for consideration the grounds of challenge

addressed by the learned counsel for the appellants to assail the

validity and correctness of the impugned judgment, we deem it

appropriate to state few facts, as are relevant for disposal of the

controversy raised in these appeals. For facility of reference facts

from LPA No.1/2017 are noted.

3. The writ petitioners are claimably owners in possession of land

bearing Khasra Nos. 48 measuring (06 kanals 05 marlas), 49 (05

kanals 10 marlas), 49 min (05 kanals 17 marlas), 50 (01 kanal 13

marlas), 51 (03 kanals 09 marlas, 52 (09 kanals 18 marlas, 53 (02

kanals 03 marlas), 54 (3 kanals 09 marlas), 55 (14 marlas) and

Khasra No.56 (02 kanals 03 marlas) situated at village Meen

Charkan Tehsil and District Samba [―subject land‖]. The

appellant No.1 is a statutory authority constituted under Section

3 of the Jammu & Kashmir Housing Board Act, 1976 [―the Act

of 1976‖] for taking measures, make schemes and carry out such

works as are necessary for the purposes of dealing with and

satisfying the need of housing accommodation, residential and

office accommodations for the public sector. It is in pursuance of

this objective and with a view to lay out a housing colony to

5 LPAOW NO.1/2017 c/w LPAOW NOs.2/2017 & 3/2017 meet the need for housing accommodation, the appellant-Board

placed an indent with the Collector Land Acquisition, J&K

Housing Board, the appellant No.2 herein, for acquiring a chunk

of land measuring 3271 kanals and 6 marlas in village Meen

Charkan and village Bari Tehsil and District Samba.

4. The respondent No.2 issued Section 4(1) notification under the

State Land Acquisition Act for acquiring the said land. This was

followed by Sections 6, 7, 9 and 17 notifications of the State

Land Acquisition Act. The writ petitioners along with other land

owners approached this Court by way of different writ petitions

immediately after notifications under Section 9 and 9A of the

State Land Acquisition Act were issued by the Collector. The

writ petition was contested by the appellants herein by filing

their objections. It was contended by the appellants before the

Writ Court that the Collector is proceeding with the process of

acquisition by strictly following the procedure laid down in the

State Land Acquisition Act. With respect to applicability of the

provisions of Sections 39 to 42 of the State Land Acquisition

Act, it was contended by the appellants that the aforesaid

provisions were not attracted to a case of an acquisition by the

Jammu & Kashmir Housing Board, a statutory body constituted

under the Act of 1976.

6 LPAOW NO.1/2017 c/w LPAOW NOs.2/2017 & 3/2017

5. The writ petition filed by the writ petitioners herein along with

other writ petitions involving determination of identical

questions of fact and law, were considered by the Writ Court and

vide its order and judgment impugned, the writ petitions were

allowed primarily on the ground that the Jammu & Kashmir

Housing Board was a ―local authority‖ and, therefore, the

Collector was under an obligation to follow the provisions of

Sections 39 to 42 of the State Land Acquisition Act. It is this

judgment of the Writ Court, which is called in question by the

J&K Housing Board and the Collector Land Acquisition of the

Board on multiple grounds.

6. Having heard learned counsel for the parties and perused the

material on record, we are of the opinion that the decision of

these appeals hinges upon determination of following questions

of law:-

i) Whether J&K Housing Board, a statutory body constituted

under the Jammu & Kashmir Housing Board Act, is a

―local authority‖ within the meaning of the term used in

Section 42A of the State Land Acquisition Act and,

therefore, Chapter-VII (Sections 39 to 42 of the State Land

Acquisition Act) would be applicable for acquisition of

land for such authority?

7 LPAOW NO.1/2017 c/w LPAOW NOs.2/2017 & 3/2017

ii) What is the impact of repeal of the State Land Acquisition

Act and coming into force of ‗The Right to Fair

Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, 2013' [―RFCTLARR

Act‖] by ‗The Jammu & Kashmir Reorganization Act,

2019' on the acquisition of land in question which at the

relevant point of time was under process but had not

culminated into passing of a final award?

Question No.(i)

7. We take up first issue first for determination.

8. Section 3(i) of the State Land Acquisition Act defines the

expression ―local authority‖ in the following manner:-

―3(i) The expression ―local authority‖ includes a town planning authority (by whatever name called) set under any law for the time being in force.‖

9. From a reading of Section 3(i), it is obvious that the definition of

the ―local authority‖ given in the State Land Acquisition Act is

inclusive and not conclusive in nature and, therefore, we may

have to look for the definition of the ―local authority‖ found

contained in some other legislations. The concept of ―local

authority‖ can be traced to Entry No.5 of List II of the Seventh

Schedule of the Constitution of India. The Entry reads thus:-

8 LPAOW NO.1/2017 c/w LPAOW NOs.2/2017 & 3/2017 ―5. Local government, that is to say, the constitution and powers of municipal corporations, improvement trusts, districts boards, mining settlement authorities and other local authorities for the purpose of local self-government or village administration.‖

10. The Entry aforesaid confers legislative competence on the States

to make law, inter alia, in relation to ―local authorities‖. The term

―local authorities‖ used in the Entry refers to the local authorities

to be constituted by the Act of State Legislatures for the purposes

of local self-government or village administration. It would

clearly mean the authorities like Panchayats, Municipal

Committees, Municipal Councils, Municipal Corporations or

some of the authorities, which represent a unit of local self-

government.

11. The expression ―local self-government‖ or ―village

administration‖ is very significant and conveys unequivocally

that these authorities are, though, constituted under legislative

enactments but are required to be manned by the elected

representatives of the people. Statutory authorities, which are

constituted of the officers and officials of the government or its

nominees and controlled and administered by the Government

through them, cannot, by any stretch of reasoning, be called

―local self-government units‖. It is because of this distinction,

the ―local authorities‖ which are constituted as local self

9 LPAOW NO.1/2017 c/w LPAOW NOs.2/2017 & 3/2017 government Units are treated autonomous entities different from

the government. As is rightly brought out by the Supreme Court

in the case of Housing Board of Haryana v. Haryana Housing

Board Employees Union, (1996) 1 SCC 95, the word ―other

local authority‖ having been placed in the company of

―municipal council, district boards‖ etc is required to be

construed Ejusdem Generis and if we understand the meaning of

―other local authorities‖ in the context of Municipal

Corporations, District Boards, improvement trusts etc, we will

come to a definite conclusion that the word ―other local

authority‖ used in Entry No.5 is only in respect of those local

authorities, which are constituted by the Government and are

administered by the elected representatives of the people. In

short, the ―local authorities‖ would mean only all such

authorities which can be termed as local self government units of

administration.

12. The definition of ―local authority‖ can also be found in Section 3

Subsection 22 of the General Clauses Act, 1977 [―General

Clauses Act‖]. Section 3(22) of the General Clauses Act reads

thus:-

―3. Definitions.-- In this Act, and in all enactments now in force or hereafter to be introduced, unless there is anything repugnant in the subject or context,-

10 LPAOW NO.1/2017 c/w LPAOW NOs.2/2017 & 3/2017 ................................

.................................

.................................

22) Local authority.--―Local authority‖ shall mean a municipal committee or other authority legally entitled to, or entrusted by the Government with, the control or management of a municipal or local fund‖

13. From the definition of ―local authority‖ set out herein above, it is

abundantly clear that the ―local authority‖, as per its definition in

General Clauses Act, shall mean a Municipal Committee or other

authority like the Municipal Committee which is legally entitled

or is entrusted by Government with control or management of a

municipal or local fund. Here also the word ―other local

authority‖ has to be understood in the light of principle of

Ejusdem Generis. Viewed thus, the ―local authority‖ as defined

in General Clauses Act needs to be interpreted to mean a body or

authority having and possessing practically all attributes of

municipal committee.

14. Having discussed the definition and meaning of ―local authority‖

given in General Clauses Act and deducible from Entry No.5 of

List II of the Seventh Schedule of the Constitution of India, we

11 LPAOW NO.1/2017 c/w LPAOW NOs.2/2017 & 3/2017 now turn to the Subsection 3 of Section 3 of the Act of 1976,

which lays down as under:-

―3. Incorporation.-- (1) ...................

(2) ........................................

(3) For the purposes of this Act the Board shall be deemed

to be a local authority.‖

15. From a plain reading of Sub Section (3) of Section 3 of the Act

of 1976, it is abundantly clear that Board by its nature and

constitution is not a ―local authority‖ but is by fiction of law

declared ―local authority‖ only for the purposes of J&K Housing

Board Act, 1976 and nothing more. If we look to some of the

salient provisions of the Act of 1976, we will find it beyond any

cavil of doubt that the J&K Housing Board, which is constituted

under Section 3 of the Act of 1976, is not a ―local self-

government‖ or a unit of village administration. It is established

with sole object of taking out such measures, making such

schemes and to carry out such works as are necessary for the

purposes of dealing with the citizens' need of housing

accommodation, residential and office accommodation for the

public sector.

12 LPAOW NO.1/2017 c/w LPAOW NOs.2/2017 & 3/2017

16. The Board, as is apparent from reading of Section-4 shall consist

of a Chairman and such other members not less than three and

not more than nine, as the Government may appoint. The

appointment of the members and their removal is, therefore,

vested in the Government. In short, the J&K Housing Board is

not constituted of the public representatives selected through any

mode of election. The Board in its functions is assisted by a

Managing Director, a Chief Executive officer of the Board, to be

appointed by the Government. Secretary and other officers of the

gazetted rank are provided to be appointed by the Board subject

to the approval of the Government.

17. Having regard to the nature and constitution of the Board and the

objects it is required to achieve, we have not even slightest of

doubt in our mind that J&K Housing Board does not qualify to

be ―local authority‖ for any purpose other than for the purpose of

J&K Housing Board Act, 1976.

18. Viewed thus, we are of the considered opinion that the Writ

Court committed an error of law by declaring the J&K Housing

Board as ―local authority‖ for the purpose of Section 42-A of the

State Land Acquisition Act and holding Chapter VII of the State

Land Acquisition Act applicable for acquisitions to be made for

the Board. In the view we have taken, we are supported by the

13 LPAOW NO.1/2017 c/w LPAOW NOs.2/2017 & 3/2017 judgment of Supreme Court in Haryana Housing Board

Employees Union case (supra).

19. In the aforesaid case, Hon'ble Supreme court was considering

the question ―whether the Haryana Housing Board is a ―Local

Authority‖ within the meaning of Section 32(iv) of the Payment

of Bonus Act, 1965, which did not contain a specific definition

of the word ―local authority‖. Hon'ble Supreme Court, relying

upon the definition of ―local authority‖ given in General Clauses

Act, 1897, Haryana Housing Board Act, 1971 and the concept of

the words found contained in Entry 5 of List II of the Seventh

Schedule of the Constitution of India, arrived at the conclusion

that the Haryana Housing Board constituted under Haryana

Housing Board Act, 1971 was not a ―local authority‖, a term

which mean and is understood as a ‗local self-government unit'

or ‗village administration'. Hon'ble Supreme Court invoked the

principle of ejusdem generis to come to such a conclusion.

Hon'ble Supreme Court analyzed various provisions of the

Haryana Housing Board Act, 1971 which are almost in pari

materia with the provisions of the Act of 1976 and concluded in

paragraph No.29 to 32 as under:-

―29. The above provisions clearly spell out that the Board which is basically and essentially a creation of the Act of State Legislature consists of persons appointed by the State Government on salary basis. The Board's personnel are not

14 LPAOW NO.1/2017 c/w LPAOW NOs.2/2017 & 3/2017 elected by the people and there is no clement of people's choice being represented in any manner in the constitution of the Board. The Board functions strictly under the supervision and control of the state Government and does not hold or possess a ―Local fund‖. What constitutes the fund of eh Board has already been specified above.

30. These functions as are indicated in a housing scheme are essentially performed by municipal moards or municipal council which, undoubtedly, are "local authorities" but on that analogy the Haryana Housing Board cannot be treated to be a "local authority" as the extent of control of the State Government under which the Board has to function is so prominently pervasive that it is almost destructive of its independence which will also be apparent from the fact that in the matter of settlement of its Annual Programmes, Budget and Establishment Schedule, the Board has to obtain the sanction of the State Government under Section 24 of the Act. The supplementary budget and programme, if any, has also to be sanctioned by the State Government.

31. We need not refer to other provisions as the provisions already referred to above are sufficient to bring home the point that Haryana Housing Board does not have even the semblance of independence which are normally possessed by local self-governments, like Municipal Boards or District Boards etc. The Board also does not even partially consist of elected representatives of the people.

32. The Board, no doubt, has the power to levy and realise Betterment Charges (See Section 40 to Section 43 of the Act) and various amount of money due from persons in possession of the properties of the Board by way of rent etc. are recoverable as arrears of land revenue but that by itself is not sufficient to clothe the Board with the status of a "local authority".‖

15 LPAOW NO.1/2017 c/w LPAOW NOs.2/2017 & 3/2017

20. When we advert to the Act of 1976, we clearly find that under

Section 26 thereof Housing Board has been given power to

acquire and dispose of land and for that purpose enter into an

agreement with any person for acquisition from him by purchase,

lease or exchange of any land which is needed for giving effect

to any housing scheme framed by it. The Board is, therefore, not

dependent upon the land placed at its disposal by the

Government after its acquisition under the Land Acquisition Act.

Subsection 2 of Section 26 makes it further clear that the

Housing Board is competent in law to take steps for compulsory

acquisition of any land or any interest therein required for

execution of a housing scheme in the manner provided under the

Land Acquisition Act and the acquisition of any land or interest

thereto for the purposes of this Act shall be deemed to be

acquisition for a public purpose within the meaning of the Land

Acquisition Act.

21. Such being the provisions contained in the Housing Board Act,

1976, it would be totally inappropriate and incongruous to hold

that the J&K Housing Board is clothed with the status of ―local

authority‖ for the purposes of land acquisition under the State

Land Acquisition Act.

22. That being the clear position of law emerging from the

discussion above, we hold that the J&K Housing Board

16 LPAOW NO.1/2017 c/w LPAOW NOs.2/2017 & 3/2017 constituted under the Act of 1976 is not a ―local authority‖

within the meaning of term used in Section 42A of the State

Land Acquisition Act and that the provisions of Sections 39 to

42 contained in Chapter VII of the State Land Acquisition Act

would not apply for any acquisition of land by or on behalf of

J&K Housing Board. J&K Housing Board through its Collector

is competent, in terms of Section 26 of the Housing Board Act,

1976, to acquire any land required by it for the purpose of any

housing scheme framed by it by following procedure laid down

in the State Land Acquisition Act.

23. Having held thus, we would also like to point out that Chapter

VII of the State Land Acquisition Act applies to the acquisition

of land by the Government for the purpose of transferring it on

lease or otherwise to any Company on such terms and

conditions, as the Government may determine after the said

company has executed an agreement mentioned in Chapter VII

itself. This is so very clearly provided under Section 39 of the

State Land Acquisition Act.

24. True it is that by Section 42 A of the State Land Acquisition Act,

acquisition of land by the State for transferring it on lease to any

corporation or ―local authority‖ is also required to be made by

strictly complying with the provisions of Section 39 to 42 of the

State Land Acquisition Act. From a reading of entire Chapter

17 LPAOW NO.1/2017 c/w LPAOW NOs.2/2017 & 3/2017 VII, particularly Section 39 and 42- A thereof, it becomes crystal

clear that Chapter would be applicable only where the

Government undertakes to acquire land for the purpose of

transferring it on lease or otherwise to a Company, Corporation

or ―local authority‖.

25. In the instant case, the acquisition of land by the Government to

be transferred to J&K Housing Board on lease was not

contemplated at all. On the indent placed by the J&K Housing

Board, Collector Land Acquisition of the Housing Board

initiated the process for acquiring the land to be vested in the

J&K Housing Board after such acquisition. For this reason also,

Chapter VII (Section 39 to 42-A) of the State Land Acquisition

Act was not attracted to the case of acquisition in question.

Question No.(ii)

26. This brings us to question No.(ii) and while we venture to find

out the impact of repeal of the State Land Acquisition Act by the

J&K Reorganization Act, 2019, we find that the issue has been

conclusively determined by the Supreme Court in the case of

Bharat Petroleum Corporation Ltd.(BPCL) and others v.

Nisar Ahmed Ganai and others, AIR 2022 SC 5026.

27. It is not in dispute that by coming in force of the J&K

Reorganization Act, 2019 w.e.f. 31.10.2019, the State Land

18 LPAOW NO.1/2017 c/w LPAOW NOs.2/2017 & 3/2017 Acquisition Act, which finds place at S. No.73 of Table-3 of the

Fifth Schedule of the Act, stands repealed. The effect of repeal of

the State Act by the Act of 2019 is provided under Clause 2(13)

of The Jammu and Kashmir Reorganization (Removal of

Difficulties) Order, 2019 [―the order of 2019‖] promulgated by

the President under Section 103 of the Jammu & Kashmir

Reorganization Act, 2019, which reads thus:-

―2. Removal of difficulties

......................................

.......................................

(13) The Acts repealed in the manner provided in TABLE-3 of the Fifth Schedule, shall not affect--

(a) the previous operation of any law so repealed or anything duly done or suffered there under;

(b) any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed;

(c) any penalty, forfeiture or punishment incurred in respect of any offence committed against any law so repealed; or

(d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid,

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if this Act had not been passed.‖

19 LPAOW NO.1/2017 c/w LPAOW NOs.2/2017 & 3/2017

28. To somewhat similar extent is the definition and impact of repeal

given in Section 6 of the General Clauses Act. From a reading

Clause 2(13) of the Order of 2019 along with Section 6 of the

General Clauses Act, it is clear that the right, privilege, liability

and obligations acquired, accrued or incurred under the repealed

law i.e. the State Land Acquisition Act stand saved and would

continue to be governed under the repealed Act. This aspect has

been elaborately discussed by the Supreme Court in the case of

Nissar Ahmed (supra) to come to a conclusion that

notwithstanding the repeal of the State Land Acquisition Act by

the Act of 2019, the land acquisition proceedings, which were

pending at the time of its repeal, shall be allowed to continue and

be completed under the provision of the repealed State Land

Acquisition Act.

29. A similar argument, as was addressed before us by

Mr. V.R.Wazir, learned senior counsel appearing for the writ

petitioners, based upon the provisions of Section 24 of the

RFCTLARR Act, was rejected by the Hon'ble Supreme Court in

Nissar Ahmed's case (supra) on the ground that Section 24 of the

RFCTLARR Act only repealed the Land Acquisition Act, 1894

and not the State Land Acquisition Act and, therefore, the

provisions of Section 24 of the RFCTLARR Act could not be

invoked to set at nought the acquisition proceedings which at the

20 LPAOW NO.1/2017 c/w LPAOW NOs.2/2017 & 3/2017 time of commencement of the RFCTLARR Act were pending

and were being carried out under the State Land Acquisition Act.

30. Before we proceed further, we would like to set out the provisions

of Section 24 of the RFCTLARR Act, which read as under:-

24. Land acquisition process under Act No. 1 of 1984 shall be deemed to have lapsed in certain cases.

(1) Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894,--

(a) where no award under section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; or

(b) where an award under said section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed.

(2) Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894), where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act:

Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act.

21 LPAOW NO.1/2017 c/w LPAOW NOs.2/2017 & 3/2017

31. From a plain reading of Section 24 of the RFCTLARR Act

reproduced herein above, it is crystal clear that it is only the land

acquisition process initiated under the Land Acquisition of 1894

i.e. Central Land Acquisition Act that has been declared to have

lapsed under certain situations provided under the Section itself.

The Section provides that where no award under Section 11 of

the said Land Acquisition Act i.e. Act No.1 of 1894 has been

passed, then all provisions of the RFCTLARR Act relating to

determination of compensation shall apply. However, where

award under Section 11 has been made then such proceedings

shall continue under the repealed Land Acquisition act i.e. Act

No.01 of 1894 as if the said Act has not been repealed. There is

no reference in Section 24 to the State Land Acquisition Act,

1990 (1934 A.D.). As is rightly held by the Supreme Court that

Section 24 of the RFCTLARR Act is not applicable to the

acquisitions under the State Land Acquisition Act, 1990.

Paragraph No.5 and 6 of the judgment is relevant for our

purpose. Therefore, relevant portion of paras 5 and 6 is

reproduced hereunder:-

―5..........................On fair reading of Section 24(1)(a) of the Act, 2013, it provides that notwithstanding anything contained in Act, 2013, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894, where no award under Section 11 of the said Land Acquisition Act has been made, then, all provisions of Act, 2013 relating to the determination of the compensation shall

22 LPAOW NO.1/2017 c/w LPAOW NOs.2/2017 & 3/2017 apply. Section 24(1) of the Act, 2013 speaks about the land acquisition proceedings initiated under the Land Acquisition Act, 1894.

In the present case, the lands in question have been acquired under the provisions of the State Land Acquisition Act, 1990. Therefore, the acquisition of the lands in question is not under the Land Acquisition Act, 1894. It cannot be disputed that prior to the enactment of the Jammu & Kashmir Reorganization Act, 2019 and promulgation of the Jammu & Kashmir (Removal of Difficulties) Order, 2019, the Land Acquisition Act, 1894 was not applicable at all so as far as the State of Jammu & Kashmir is concerned. It is only on the enactment of the Jammu & Kashmir Reorganization Act, 2019, Act, 2013 shall be made applicable. It is the case on behalf of the original writ petitioners that as the provisions of the State Act of 1990 are pari materia to the Land Acquisition Act, 1894 and therefore, Section 24(1)(a) of the Act, 2013 shall be applicable. The aforesaid cannot be accepted. The language of Section 24(1)(a) of the Act, 2013 is very clear and unambiguous. It talks about the land acquisition under the provisions of the Land Acquisition Act, 1894 only and it does not speak about any other pari materia provision of different statutes. 5.2 At this stage the decision of this Court in the case of Bangalore Development Authority & Anr. (Supra) is required to be referred to. In the said decision it is specifically observed and held that the Act, 2013 repeals only the Land Acquisition Act, 1894 and not any other Central or State enactment dealing with the acquisition and therefore, what is sought to be saved under the Act, 2013 is only acquisitions which have been initiated under the Land Acquisition Act, 1894 and not those acquisitions which have been initiated under any other Central or State enactment. In paragraphs 19 and 23, this Court had observed and held as under:

―19. The 2013 Act repeals only the LA Act and not any other Central or State enactment dealing with acquisition. Therefore, what is sought to be saved under Section 24 of the 2013 Act is only acquisitions which had been initiated under the LA Act and 13 not those acquisitions which had been initiated under any other Central or State enactment. The expression contained in Section 24 of the LA Act cannot be given extensive interpretation by adding words into the provision, in the absence of the provision itself giving rise to any such implication. We are of the view that 2013 Act would not regulate the acquisition proceedings made under the BDA Act.

23. In view of the above, the Learned Judge of the High Court in Sri Sudhakar Hegde (supra) was not justified in holding that the provisions of LA Act that are made applicable to the BDA Act are in the nature of legislation by reference. The learned Judge has also erred in holding that in view of the repeal of LA Act by coming into force of 2013 Act, the

23 LPAOW NO.1/2017 c/w LPAOW NOs.2/2017 & 3/2017 corresponding provisions of 2013 Act would regulate acquisition proceedings under the BDA Act and that this would include determination of compensation in accordance with 2013 Act. It is hereby clarified that since LA Act has been incorporated into the BDA Act so far as they are applicable, the provisions of 15 2013 Act are not applicable for the acquisitions made under the BDA Act. Therefore, the judgment of the learned Single Judge of the High Court in Sri Sudhakar Hegde (supra) and other connected matters is hereby overruled.‖ In view of the above binding decision of this Court, we are of the firm view that the provisions of the Act, 2013 shall not be applicable with respect to the acquisition under the J & K Act, 1990.

5.3 Even otherwise considering clause 2(13) of the Order, 2019 read with Section 6 of the General Clauses Act under which the rights, liabilities, privileges, obligations acquired, accrued, or incurred under the repealed laws stands saved and would be continued under those Acts (in the present case the Act, 1990), it is to be noted that Order, 2019 is subsequent to the Act, 2013. Therefore, it is to be presumed that while enacting the Order, 2019 and providing Clause 2(13) of the Order, 2019, the legislature was conscious of the provisions of the earlier Act (Act, 2013). Under the circumstances also, with respect to the lands acquired under the State Act of 1990, Section 24(1)(a) of the Act, 2013 shall not be applicable at all.

5.4 Even otherwise, it is required to be noted that in some of the writ petitions there was an order of status quo may be with respect to the possession. It is to be noted that the notification under Section 4 and declaration under Section 6 of the State Act of 1990 was a common notification / declaration. Therefore, there was impediment on the part of the authority in declaring the award. The original writ petitioners cannot be permitted to take benefit of the order of status quo obtained by some of the original writ petitioners and thereafter to contend that as the award has not been declared they shall be entitled to the enhanced amount of compensation under the provisions of the Act, 2013. In the case of Indore Development Authority Vs. Manoharlal and Ors.; (2020) 8 SCC 129, it is observed and held by this Court that:

(i) Lapse of acquisition takes place only in case of default by the authorities acquiring the land, not caused by any other reason or order of the court;

(ii) If it was not possible for the acquiring authorities, for any reason not attributable to them or the Government, to take requisite steps, the period has to be excluded;

(iii) In case the authorities are prevented by the court's order, obviously, as per the interpretation of the provisions such period has to be excluded;

24 LPAOW NO.1/2017 c/w LPAOW NOs.2/2017 & 3/2017

(iv) The intent of the Act, 2013 is not to benefit landowners only. The provisions of Section 24 by itself do not intend to confer benefits on litigating parties as such, while as per Section 114 of the Act, 2013 and Section 6 of the General Clauses Act the case has to be litigated as per the provisions of the Act, 1894;

(v) It is not the intendment of the Act, 2013 that those who have assailed the acquisition process should get benefits of higher compensation as contemplated under Section 24;

(vi) It is not intended by the provisions that in case, the persons, who have litigated and have obtained interim orders from the Civil Courts by filing suits or from the High Court under Article 226 of the Constitution should have the benefits of the provisions of the Act, 2013 except to the extent specifically provided under the Act, 2013;

(vii) In cases where some landowners have chosen to take recourse to litigation and have obtained interim orders restraining taking of possession or orders of status quo, as a matter of practical reality it is not possible for the authorities or the Government to take possession or to make payment of compensation to the landowners. In several instances, such interim orders also have impeded the making of an award;

(viii) The litigation initiated by the landowners has to be decided on its own merits and the benefits of Section 24(2) should not be available to the litigants in a straightjacket manner. In case there is no interim order, they can get the benefits they are entitled to, not otherwise. Delays and dilatory tactics and sometimes wholly frivolous pleas cannot result in benefitting the landowners under subsection (1) of Section 24 of the Act, 2013;

(ix) Any type of order passed by this Court would inhibit action on the part of the authorities to proceed further, when a challenge to acquisition is pending;

(x) Interim order of stay granted in one of the matters of the landowners would cause a complete restraint on the authorities to proceed further to issue declaration;

(xi) When the authorities are disabled from performing duties due to impossibility, it would be a sufficient excuse for them to save them from rigour of provisions of Section 24. A litigant may have a good or a bad cause, be right or wrong. But he cannot be permitted to take advantage of a situation created by him by way of an interim order passed in his favour by the Court at his instance. Although provision of Section 24 does not discriminate between landowners, who are litigants or nonlitigants and treat them differently with respect to the same acquisition, it is necessary to view all of

25 LPAOW NO.1/2017 c/w LPAOW NOs.2/2017 & 3/2017 them from the stand point of the intention of the Parliament. Otherwise, anomalous results may occur and provisions may become discriminatory in itself;

(xii) The law does not expect the performance of the impossible;

(xiii) An act of the court shall prejudice no man;

(xiv) When there is a disability to perform a part of the law, such a charge has to be excused. When performance of the formalities prescribed by a statute is rendered impossible by circumstances over which the persons concerned have no control, it has to be taken as a valid excuse;

(xv) The Court can under its inherent jurisdiction ex debito justitiae has a duty to mitigate the damage suffered by the defendants by the act of the Court;

(xvi) No person can suffer from the act of Court and an unfair advantage of the interim order must be neutralised; (xvii) No party can be permitted to take shelter under the cover of Court's order to put the other party in a disadvantageous position;

(xviii) If one has enjoyed under the Court's cover, that period cannot be included towards inaction of the authorities to take requisite steps under Section 24 as the State authorities would have acted and passed an award determining compensation but for the Court's order. Therefore also, the original writ petitioners - land owners shall not be entitled to enhanced amount of compensation under Section 24(1)(a) of the Act, 2013 on the ground that as the award has not been declared they shall be entitled to compensation under the Act, 2013.

6. In view of the above and for the reasons stated above and our specific finding that with respect to the lands acquired under the provisions of the J & K Act, 1990 Section 24(1)(a) of the Act, 2013 shall not be applicable and even otherwise as observed hereinabove on merits also as the award could not be declared due to the pendency of the writ petitions before the High Court and the order of status quo, the High Court has committed a serious error in directing the appellants to pay the amount of compensation under the Act, 2013. To that extent the impugned common judgment and order passed by the High Court is unsustainable, both on facts as well as on law.

..............................................‖

26 LPAOW NO.1/2017 c/w LPAOW NOs.2/2017 & 3/2017

32. Judgment of the Supreme Court in the case of Nissar Ahmed

Ganai (supra) is, thus, complete answer to the second question.

33. Having answered both the questions, we are of the firm opinion

that the judgment of the Writ Court is not sustainable and,

therefore, deserves to be set aside. We also take note of the fact

that the acquisition proceedings initiated by the appellant No.2

by issuing 4(1) notification followed by several other

notifications under the State Land Acquisition Act could not be

taken to logical end due to the writ petitioners approaching the

Court and getting the said proceedings quashed by the Writ

Court. Had the writ petitioners not approached the Writ Court

and stalled the process of land acquisition, the acquisition

proceedings could have culminated into passing of an award

much before the commencement of the J&K Reorganization Act,

2019. The writ petitioners cannot be given the benefit of

involving the appellants in litigation and getting the process of

land acquisition stalled.

34. We, however, cannot lose sight of the fact that the process of

acquisition in the instant case was initiated by respondent No.2

by issuing notification under Section 4(1) of the State Land

Acquisition Act on 12.09.2011 and that would be the relevant

date in terms of Section 11(1)(a) for determination of value of

the land for the purposes of assessment of compensation. May be

27 LPAOW NO.1/2017 c/w LPAOW NOs.2/2017 & 3/2017 because of litigation, an award of compensation has not been

passed and we are in the year 2023. Allowing the respondent

No.2 to acquire land by determining the value of the land to be

acquired as was prevalent on 12.09.2011 and pay the

compensation on such rates to the interested persons would be

harsh and highly inequitable. We are aware that we do not have

the powers akin to the powers conferred on the Supreme Court

under Article 142 of the Constitution of India to pass orders to do

complete justice between the parties but the powers conferred

upon the High Court under Article 226 of the Constitution are

also wide enough to provide substantial justice to the parties

before it. Jurisdiction vested in the High Court under Article 226

is not only extraordinary but is also equitable. While we have

upheld the proceedings initiated by the appellant No.2 under the

State Land Acquisition Act and permitted him to go ahead with

such proceedings to culminate them into passing of final award,

yet we deem it appropriate and in the interest of justice to direct

respondent No.2 to work out the compensation by reference to

the value of land under acquisition in the year 2023, of course, as

per the provisions of State Land Acquisition Act. This would

serve the ends of justice.

35. In view of the discussion made above, all these appeals filed by

the appellants are allowed and the order and judgment dated

28 LPAOW NO.1/2017 c/w LPAOW NOs.2/2017 & 3/2017 25.10.2016 passed in OWP Nos.733/2013, 850/2013 and

1537/2013 is set aside. The respondent No.2-Collector Land

Acquisition, J&K Housing Board shall proceed ahead with the

land acquisition proceedings from the stage at which these were

quashed and pass the final award without any further delay and

determine compensation by reference to the value of land under

acquisition in the year 2023 by strictly following the provisions

of State Land Acquisition Act.

                     (Puneet Gupta)                     (Sanjeev Kumar)
                          Judge                              Judge
JAMMU
06.10.2023
Vinod,PS
                          Whether the order is speaking : Yes
                          Whether the order is reportable: Yes




                                29         LPAOW NO.1/2017 c/w LPAOW NOs.2/2017 & 3/2017