Jammu & Kashmir High Court - Srinagar Bench
Laldin Chichi And Ors vs Union Territory Of Jk And Ors on 8 August, 2024
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
S. No. 4
Regular Cause List
IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP (C) No. 308/2022
CM No. 826/2022
Laldin Chichi and Ors. ...Appellant/Petitioner(s)
Through: Mr. Aswad Attar, Adv.
Mr. Mir Ishtiyaq, Adv.
Vs.
Union Territory of JK and Ors. ...Respondent(s)
Through: Mr. Mubashir Malik, Dy. AG
CORAM:
HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
ORDER
08.08.2024
1. The petitioners claim that they are owner in possession of land measuring 3
Kanals falling under Khasra Nos 2591, 2587, 2585, 2556min, 2558 min,
2561 min and 2565 min situated at Boninar Bandipora.
2. The aforesaid land which was in exclusive possession of the petitioners was
taken over by the respondents for construction of road without following
the due process of law. The petitioners moved a representation before the
respondents for payment of compensation, but the same was denied to them
without giving any reasons. The petitioners have placed on record some
revenue record which indicates that land measuring 1 Kanal is a proprietary
land, whereas the rest 2 Kanals of land utilized for construction of road is
Shamilat deh land.
3. In the aforesaid backdrop, the petitioners are seeking indulgence of this
Court to direct the respondents to formally acquire the land and pay them
the compensation as per the Land Acquisition Act which was then in force
at the time of acquisition.
4. On being put on notice, the respondents have filed their objections/reply
affidavit. In the reply affidavit filed by the Deputy Commissioner,
Bandipora, the stand taken is that proprietary land measuring 1 Kanal
comprising Survey Nos 2561min (05 Marla) & 2558 min (15 Marla) and
Shamilat Section-5 measuring 01 Kanal 19 Marla comprising Survey Nos
2565min (4 ½ Marla) 2591min (09 Marla) 2587min (18 Marla) 2585min (3
½ Marla) 2556min (4 ½ Marla) in estate Onagam of Tehsil Bandipora has
come under the construction of Onagam-Khayar road which was laid by
R&B Department in the year 2018.
5. It is submitted that the construction/up-gradation of the existing track
(thoroughfare) was taken up in public interest, on public demand and the
concerned land owners voluntarily provided their land without claiming any
compensation. It is however, not denied that the process of acquisition as
laid down under Land Acquisition Act was not followed. It is submitted
that since the land was provided by the villagers voluntarily free of cost, as
such, no such proceedings were undertaken.
6. The petitioners have filed their rejoinder affidavit and have disputed the
contention of the Deputy Commissioner, Bandipora, and the other
respondents that the land was voluntarily donated by them. It is submitted
that the Sarpanch, who may have given consent on their behalf, had no
authority to do so, as the petitioners were the owners of the land and they
never donated their land for the construction of road. It is submitted that the
land was forcibly taken over and the road was constructed and, therefore,
they are entitled to be compensated.
7. Having heard learned counsel for the parties and perused the material on
record, it seems that in the year 2018 Onagam-Khayar road was
constructed/up-graded. As is the stand of the respondents, a
thoroughfare/Kacha road was already existing on spot and it was on the
popular demand of the public, the R&B Department constructed a pacca
road. It is not in dispute that for construction of the aforesaid road, about 3
Kanals of land was utilized, as has come clearly in affidavit of the Deputy
Commissioner. Out of these 3 Kanals, 01 Kanal was proprietary land and
the rest of 2 Kanals was Shamilat deh Section-5 land. Though the
respondents have taken specific stand that the land was voluntarily donated
by the villagers, however, but the petitioners dispute the aforesaid fact and
submit that there was neither any voluntarily donation of the land nor was
any document in this regard executed to surrender the possession of their
proprietary land.
8. In view of the rival contentions, serious disputed questions of fact have
arisen. This Court may not be in a position to decide the aforesaid disputed
questions of fact in the exercise of extraordinary writ jurisdiction vested in
this Court under Article 226 of the Constitution of India. Ordinarily, in such
circumstances, this Court would have relegated the petitioners to the
remedy before the Civil Court. However having regard to the fact that the
road was constructed in the year 2018, more than six years have passed, it
would be too late in the day to send the petitioners to the Civil Court for
adjudication of their rights.
9. Having regard to the facts and circumstances of this case and in the absence
of any proof that the petitioners voluntarily donated their proprietary land, I
deem it appropriate to dispose of this petition by providing as under:-
(a) That the Deputy Commissioner, Bandipora shall constitute a team
of Revenue Officers headed by Tehsildar concerned to demarcate
the actual land utilized in construction of Onagam-Khayar road
constructed by the Department of R&B in the year 2018.
(b) The Committee shall find out as to whether any proprietary land
of the petitioners is utilized in the construction of aforesaid land.
The Committee shall also find out the share of the petitioners in
the Shamilat deh Section-5 land utilized in the construction of the
said road by working out their share on pro rata basis.
(c) That in case it is reported by the Committee of Revenue Officers
that the proprietary land and share of the petitioners in the
Shamilat land has been utilized for the construction of Onagam-
Khayar road, the matter shall be intimated to the R&B
Department for placing requisite indent along with funds so that
the process for acquisition is taken by the Collector Land
Acquisition concerned.
(d) It would be appreciated, if the Deputy Commissioner, Bandipora,
makes an effort to settle the matter by private negotiations instead
of resorting to the procedure laid down in the J&K Land
Acquisition Act. Let R&B Department, on being intimated by the
Deputy Commissioner, Bandipora, in the manner aforesaid, place
requisite indent as also make the funds available for formal
acquisition of the said land so that the compensation, as may be
determined by the Deputy Commissioner/Collector land
acquisition, may be disbursed to the rightful owners/claimants.
(e) Let the entire exercise be completed by the respondents within a
period of six weeks from the date copy of this order is served
upon them.
,
(SANJEEV KUMAR)
JUDGE
SRINAGAR
08.08.2024
Sakeena
Whether the Judgment is reportable? Yes/No
Whether the Judgment is speaking? Yes/No.
