Jammu & Kashmir High Court

Pushpa Devi vs Union Of India Through Ministry Of on 30 August, 2024

Author: Wasim Sadiq Nargal

Bench: Wasim Sadiq Nargal

                                                            S. No. 95
      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                              AT JAMMU
                                            Reserved on:-   21.08.2024
                                            Pronounced on:- 30.08.2024
Case No. :- WP(C) No. 1251/2022
            CM Nos. 3635/2022, 4380/2024 & 6303/2022
1. Pushpa Devi, Aged 70 years,                            .....Petitioner(s)
   D/o Lt. Sh. Nikku, W/o Sh. Puran
   Singh, R/o Mulochak, P.O. Arnia,
   Tehsil R.S. Pura, District Jammu;
2. Shakuntala Devi, Aged 74 years,
   D/o Lt. Sh. Nikku
   W/o Sh. Jarnail Singh
   R/o Badhi, Tehsil Noorpur, District
   Kangra, Himachal Pradesh;
3. Kamlo Devi, Aged 72 years,
   D/o Lt. Sh. Nikku
   W/o Sh. Maggar Singh,
   R/o Baduhi, Tehsil Noorpur, District
   Kangra, Himachal Pradesh.
                       Through: Mr. Amit Gupta, Advocate.
                   Vs
1. Union of India through Ministry of
   Road, Transport & Highways, Govt. of           ...... Respondent(s)
   India, New Delhi;
2. National Highway Authority of India,
   through its Chairman G 586, Sector-
   10, Dwarka, New Delhi;
3. Deputy Commissioner (Collector),
   Kathua;
4. Tehsildar Hiranagar;
5. Tara Singh S/o Lt. Sh. Nikku;
6. Avtar Singh, S/o Lt. Sh. Nikku
   Both respondent Nos. 5 & 6 residents
   of Gura, Beldaran, Tehsil Hiranagar,
   District Kathua.
                       Through: Mrs. Monika Kohli, Sr. AAG for R-3 & 4.
                                 Mr. Vipan Gandotra, Advocate for R-1 & 2.
                                 Mr. S.C. Sharma, Advocate for R-5.
                                 Mr. G.S. Thakur, Advocate for R-6.
Case No. :- WP(C) No. 1395/2022
           CM No. 3859/2022
  Pritam Singh, Aged 57 years,                              .....Petitioner(s)
  D/o Lt. Sh. Nikku, R/o Gurha
  Baildaran, Tehsil Hiranagar, District
  Kathua.
                       Through: Mr. Amit Gupta, Advocate.
                                          2                  WP(C) No. 1251/2022 c/w
                                                             WP(C) No. 1395/2022

                       Vs
1. Union of India through Ministry of
   Road, Transport & Highways, Govt. of                    ...... Respondent(s)
   India, New Delhi;
2. National Highway Authority of India,
   through its Chairman G 586, Sector-10,
   Dwarka, New Delhi;
3. Deputy Commissioner (Collector) ,
   Kathua;
4. Tehsildar Hiranagar;
5. Tara Singh S/o Lt. Sh. Nikku;
6. Avtar Singh, S/o Lt. Sh. Nikku
     Both respondent Nos. 5 & 6 residents of
     Gura, Beldaran, Tehsil Hiranagar,
     District Kathua.
                            Through: Mrs. Monika Kohli, Sr. AAG for R-3 & 4.
                                     Mr. Vipan Gandotra, Advocate for R-1 & 2.
                                     Mr. S.C. Sharma, Advocate for R-5.
                                     Mr. G.S. Thakur, Advocate for R-6.

Coram:       HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE

                                    JUDGMENT

1. Before going into the facts of both the writ petitions, it is apt to

mention that both the petitions have been filed by the co-sharers, who are the

legal heirs of one Late Sh. Nikku and the subject matter and relief sought for by

the petitioners in both the petitions are identical. Therefore, in view of the

aforesaid, this Court proposes to dispose of both the petitions collectively by

way of a common judgment.

2. In both the writ petitions filed under Article 226 of the Constitution

of India, the petitioners have sought similar reliefs, which read as follows: -

(I) MANDMUS, directing the official respondents to award compensation to the petitioners for the acquisition of their land measuring 08 Kanals 02 Marlas comprising under Khasra No. 806, land measuring 17 Marlas comprising Khasra No. 803 duly situated at Village Gura Beldaran, Tehsil Hiranagar, District Kathua and also land measuring 01 Kanal

16 Marlas comprising Khasra No. 740 duly situated at Village Dhalli, Tehsil Hiranagar, District Jammu of which the petitioners are co-sharers alongwith respondent Nos. 5 and 6 according to their share and further direct the official respondent Nos. 1 to 4 not to carry on any construction work on the land of the petitioners till they are paid money/compensation as per their share and also direct the respondent Nos. 1 to 4 not to release any payment in favour of the respondent Nos. 5 and 6 with respect to the abvestated land of which the petitioners are entitled.

(II) Any other writ/order/direction which this Hon'ble Court may in the given facts and circumstances of the case deem fit and proper may also be granted in favour of the petitioners."

FACTUAL BACKGROUND OF WP(C) NOS. 1251/2022 & 1395/2022

3. In order to determine and settle the controversy in question, it is

necessary to notice the facts of the case first, which are succinctly summarized

as under: -

4. The father of the petitioners as well as respondent Nos. 5 & 6,

namely, Nikku was the actual owner in possession of land measuring 08 Kanals

& 02 Marlas comprising Khasra No. 806, land measuring 17 Marlas comprising

Khasra No. 803 duly situated at Village Gura Beldaran, Tehsil

Hiranagar, District Kathua and also land measuring 01 Kanal 16 Marlas

comprising Khasra No. 740 duly situated at Village Dhalli, Tehsil Hiranagar,

District Jammu, which is being intended to be acquired by the respondent

Nos. 1 and 4 for construction of Delhi-Amritsar-Katra expressway. It is the case

of the petitioners that the respondents Nos. 1 to 4 have also measured the land

and put up the marks as per the Land Acquisition Act (hereinafter referred to

as the "Act") and they are in the process of constructing the expressway after

acquiring the same as per the Act. However, the petitioners, who are the

owners/co-sharers in the abovesaid land alongwith respondent Nos. 5 and 6 are

being denied the payment/compensation as per the Act for acquiring their land.

5. After the death of the father of the petitioners and respondent

Nos. 5 & 6, who was the owner in possession of the abovestated land during his

lifetime, the petitioners as well as respondent Nos. 5 & 6 and one sister, namely,

Parkasho Devi became entitled to inherit and receive the abovesaid land, which

is now being acquired by the respondent Nos. 1 to 4 for construction of Delhi-

Amritsar-Katra expressway. It is averred in the petition that all the formalities to

acquire the land as per the Act are to be complied by the respondent Nos. 1 to 4.

The Acquittance roll is also prepared, but the petitioners, who are legally entitled

being co-sharers of the land alongwith respondent Nos. 5 and 6 as per the

revenue record, are being conveyed openly by the respondent No. 4 that they

will not get any payment/compensation with respect to the abovesaid land,

which is being acquired by the respondent Nos. 1 to 4 for the construction of six

lane Delhi-Amritsar-Katra expressway despite having their names incorporated

in the revenue record. This, the petitioners submit is totally illegal and bad in the

eyes of law as the petitioners are legally entitled to receive the compensation for

the acquisition of their own piece of land as per the revenue record. After the

death of the father of the petitioners, all the petitioners stepped into his shoes

alongwith respondent Nos. 5 and 6 and one deceased sister, namely, Parkasho

Devi.

ARGUMENTS ON BEHALF OF THE PETITIONERS

6. Learned counsel for the petitioners submits that the respondents

Nos. 5 and 6 in complicity with the respondent no. 3-Deputy Commissioner

(Collector), Kathua and 4-Tehsildar, Hiranagar are threatening the petitioners

that they will not be paid a single penny as a compensation for acquisition of

their land.

7. Learned counsel further submits that the petitioners approached the

respondent Nos. 3 & 4 many times by way of representations/applications for

release of their genuine dues/compensation according to their share, but till date,

nothing substantial has been done and the petitioners are being conveyed openly

by the respondent Nos. 3 and 4 that they have no right over the said piece of land

and only respondent Nos. 5 and 6 have a right over the abovesaid land, which is

totally illegal and bad in the eyes of law.

8. Learned counsel for the petitioners has strenuously argued that

since the revenue record categorically reveals the names of the petitioners as

owner of the abovesaid land alongwith respondent Nos. 5 and 6. Therefore, as

per the Act, the petitioners are legally entitled to receive the compensation for

acquisition of their own piece of land, which is being acquired by the official

respondents for the construction of six lane Delhi-Amritsar-Katra expressway.

As per learned counsel for the petitioners, a communication with regard to the

grievance of the petitioners was also moved by the office of competent authority

for land acquisition (GALA) expressway, Kathua to the respondent No. 4, but

the same has also not been considered by the said respondent.

9. Learned counsel for the petitioners has vehemently argued that a

right is accrued in favour of the petitioners to receive the compensation on

account of acquisition of their land for construction of Delhi-Amritsar-Katra

expressway from the respondent Nos. 1 to 4, as the petitioners are entitled to

receive the compensation as per the Act and the respondents cannot rebuff the

amount of compensation accrued in favour of the petitioners for acquisition of

their abovesaid land.

10. Learned counsel for the petitioners has further argued that the other

persons of the village, whose patches of land are also acquired by the official

respondents have received the compensation from the respondent Nos. 1 to 4,

but the petitioners being entitled to receive the compensation, are being deprived

of the same, which is totally illegal and bad in the eyes of law.

11. Lastly, learned counsel for the petitioners submits that the

petitioners would feel satisfied in case, a direction is issued to the respondent

No. 3-Deputy Commissioner (Collector), Kathua to accord consideration to the

representation alleged to have been filed by the petitioners, which has not been

decided by the said respondent till date.

12. Feeling aggrieved of the inaction on the part of the official

respondents, the petitioners have approached this Court by way of instant writ

petitions.

ARGUMENTS ON BEHALF OF THE RESPONDENTS

13. Mr. Vipan Gandotra, Advocate appearing on behalf of respondent

Nos. 1 and 2 submits that the instant petition is required to be dismissed for the

simple reason that the National Highways Act, 1956 (hereinafter referred to as

the "Act of 1956") provides that, if any dispute arises as to the apportionment of

the amount or any part thereof or to any person to whom the same or any part

thereof is payable, the competent authority shall refer the dispute to the decision

of the Principal Civil Court of original jurisdiction within the limits of whose

jurisdiction the land is situated.

14. Learned counsel further submits that the land, if any, acquired by

the respondents as has been alleged by the petitioners, is being acquired only

under the provisions of the Act of 1956, as the State Land Acquisition Act has

been repealed on the coming into force of J&K Reorganization Act and the

disputes pertaining to apportionment can only be decided by the Principal Civil

Court of original jurisdiction on the reference being made by the competent

authority under the provisions of the Act of 1956.

15. Learned counsel has vehemently argued that since the land is being

acquired for construction of Delhi-Amritsar-Katra expressway, which is a

project of public importance, therefore, the same cannot be stalled, as has been

prayed for by the learned counsel for the petitioners. Furthermore, he it is

submitted that since the petitioners have not annexed all the relevant documents

for the purpose of adjudication of the disputes and have been raising the disputed

questions of fact only, therefore, they cannot be granted relief at all.

16. Mrs. Monika Kohli, learned Sr. AAG appearing on behalf of

respondent Nos. 3 & 4 submits that the respondent No. 4-Tehsildar, Hiranagar

vide letter No. OQ/1833 dated 27.01.2024 has prepared and furnished a report in

respect of the land comprising of Khasra Nos. 803 & 806 situated at Village

Gurah Beldaran, Tehsil Hiranagar. In the said report, what has been held vis-à-

vis land comprising of Khasra Nos. 803 & 806, is reproduced hereunder:-

"The settlement for the village has been completed in the year 2007. It has been further reported by the respondent No. 4 that as

per Missal Haquiat, the land has been acquired for the construction of Delhi-Amritsar-Katra Expressway recorded as under:-

a. Khewat No. 20 Khata No. 467 and Khasra No. 806 land measuring 08 Kanal 02 Marlas is recorded under the ownership of Avtar Singh and ors. The Cultivation column mentions "Self cultivation of Tara Singh Co-sharer".

b. Khewat No. 21 Khata No. 588 and Khasra No. 803 land measuring 04 Kanal 17 Marlas is recorded as "Shamlat Deh Hasb-e-Rasad Khewat. Cultivation column mentions "Avtar Singh Sio Niku (Rajput) R/o Deh co-sharer."

As per Jamabandi for the year 2016-2017, in Khewat No. 20 Khata No. 472 to 480, a total quantum of land measuring 121 Kanal 16 Marlas has been recorded out of which the share of:-

(i) Avtar Singh co-sharer is 11 Kanals 08 Marlas and 102 sq.ft

(ii) Tara Singh is 11 Kanals 08 Marlas and 102 sq. Ft

(iii) Pritam Singh is 11 Kanals 08 Marlas and 102 sq. ft sons of Niku.

(iv) Mst. Parkasho Devi is 01 Kanals 05 Marlas and 102 sq. ft.

(v) Shakuntala Devi 01 Kanal 05 Marlas and 102 sq. ft.

(vi) Kamlo Devi is 01 Kanal 05 Marlas an 102 sq. ft.

daughters of Niku.

(vii)Giano Devi 01 Kanal 05 Marlas and 102 sq.ft wife of late Niku.

As per field book prepared by the Patwari Halqa, verified by the Girdawar and attested/authenticated by the Naib Tehsildar and Tehsildar concerned, Sr. No. 112 for Khasra No. 806 is recorded under the ownership of Avtar Singh and ors. and the cultivation column mentions "Self cultivation of Tara Singh co-sharer." The spot position described in the field book mentions Tara Singh co-sharer as per family partition However, at the Serial No. 109 of the field book for Khasra No. 803 land measuring 01 Kanal 10 Marlas is recorded as "Shamlat Deh Hasb-e-Rasad Khewat" and the cultivation column mentions Avtar Singh S/o Niku (Rajput) co-sharer. The remarks column for the said Serial No. 109 reveals that the total area of the said Khewat is 729 Kanals 7 Marlas, which is recorded as Shamlat Deh Hasb-e-Rasad Khewat, in which the share of Avtar Singh and Tara Singh sons of Niku is equal viz 08 Kanals total i.e. 04 Kanals each. It is further submitted that as per the spot position, Avtar Singh is recorded to be in possession of 13 marlas and Tara Singh is recorded to be in possession of 17 Marlas in Khasra No. 803 situated at village Gurah Beldaran, Tehsil Hiranagar, District Kathua. Land measuring 08 Kanal 02 Marlas belonging to Tara Singh S/o Niku comprising of Khasra No. 806 situated at village Gurah Beldaran, Tehsil Hiranagar District Kathua and Land measuring 01 Kanal 10 Marlas (13 Marlas belonging to

Avtar Singh and 17 Marlas belonging to Tara Singh) comprising of Khasra No. 803 situated at village Gurah Beldaran, Tehsil Hiranagar District Kathua has been utilized for the construction of Delhi-Amritsar-Katra Expressway. In pursuant to the award issued by the Competent authority for Land Acquisition (Deputy Commissioner) Kathua vide No. DC K/CALA/2021-22/539-44 dated 25.02.2022 of village Gurah Beldaran, mutation No. 143 has been attested in favour of "Sarkar Hind through President of India (Ministry of Road Transport Highways) maqbooza NHAI."

17. The conclusion drawn by the respondent No. 4 in his report with

respect to land comprising under Khasra No. 740 situated at Village Dhalli,

Tehsil Hiranagar, is as under:-

"Khasra No. 740 is recorded a State land under Section 4 of the Agrarian Reforms Act, with Avtar Singh and ors. (ex-owners) recorded as "Sabka Malkan" and in cultivation column, Maghar S/o Silo "Malak Sabka" has been recorded.

The Mutation No. 223 for land measuring 01 Kanal 10 Marlas has been attested in favour of "Sarkar Hind, President of India through the Ministry of Road, Transport and Highway and occupied by NHAI Delhi- Amritsar-Katra Expressway."

18. Mrs. Kohli, learned Sr. AAG further submits that the apportionment

statement for Khasra Nos. 803 and 804 and 740 has been prepared and the

compensation has been awarded to the rightful claimants as per the record and

spot position.

19. Mr. G.S. Thakur, learned counsel appearing for respondent No. 6

submits that respondent No. 6 is the owner of the land measuring 17 Marlas

comprising Khasra No. 803 situated at Village Gurha Beldaran, Tehsil Hiranagar

and the same has been acquired for the construction of Express National

Highway. He further submits that in terms of Section 3 (D) of the Act of 1956,

the respondent No. 3, who is a competent authority under the Act of 1956, issued

the notification for acquisition of the land, which was notified for the

construction of Express National Highway and the petitioners are claiming the

compensation arising out of the land notified and acquired, which cannot be

decided in the instant writ petitions, since the provision of Section 3(H)(4) is the

enabling provision, which envisages that „if any dispute arises as to the

apportionment of the amount or any part thereof or to any person to whom the

same or any part thereof is payable the competent authority shall refer the

dispute to the decision of the Principal Civil Court of Original jurisdiction

within the limits of whose jurisdiction the land is situated.'

20. Mr. Thakur further submits that the instant petition is not

maintainable and deserves to be dismissed in view of the fact that the petitioners

have the efficacious remedy available under the Act of 1956 and it is a settled

law that if the petitioners have efficacious remedy available, the writ is not

maintainable. He further submits that the petitioners have suppressed the factum

of ownership over the land falling under Khasra Nos. 803, 804 & 740. He has

also taken a stand that the petitioners have no right to claim any compensation

arising out of the land owned and inherited by the answering respondent

(respondent No. 6 herein), which falls under Khasra No. 803.

21. Mr. Thakur has vehemently argued that insofar as the land falling

under Khasra Nos. 806 & 740 is concerned, the same has been inherited by the

respondent No. 6 alongwith other share holders by way of succession and the

petitioners have settled in their in-laws‟ house before coming into being the

Hindu Succession Act and, as such, have no right to claim the estate left by the

late father. According to him, the land has been acquired by the official

respondents for the construction of Delhi-Amritsar-Katra expressway and the

possession of the land has been taken over from the respondent No. 6, which

falls under Khasra No. 803 and the compensation has been settled in his favour

and the petitioners in order to usurp the compensation have filed the instant

petition, which is not maintainable.

LEGAL ANALYSIS

22. Heard learned counsel for both the parties and perused the record.

23. The record reveals that the precise issue before this Court is with

regard to apportionment of the compensation in favour of the petitioners and

respondent Nos. 5 & 6 vis-a-vis land under three different Khasra Nos. i.e.,

Khasra Nos. 806 & 803 situated at Village Gura Beldaran, Tehsil Hiranagar,

District Kathua and Khasra No. 740 situated at Village Dhalli, Tehsil Hiranagar,

District Jammu. However, such issue of apportionment of compensation can

only be decided by the Principal Civil Court of original jurisdiction on the

reference being made by the competent authority under the provisions of the Act

of 1956. The said issue of apportionment of compensation has been effectively

dealt by the Hon‟ble Supreme Court in case titled, "Vinod Kumar and others

Vs. District Magistrate MAU and others" decided in Civil Appeal No. 5107 of

2022, wherein what has been held is reproduced hereunder: -

".....33. We are of the view that when it comes to resolving the dispute relating to apportionment of the amount determined towards compensation, it is only the Principal Civil Court of original jurisdiction which can do so. Principal Civil Court means the Court of the District Judge.

34. Our final conclusion is as under: If any dispute arises as to the apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is

payable, then, the competent authority shall refer the dispute to the decision of the Principal Civil Court of original jurisdiction within the limits of whose jurisdiction the land is situated. The competent authority possesses certain powers of the Civil Court, but in the event of a dispute of the above nature, the summary power, vesting in the competent authority of rendering an opinion in terms of subsection (3) of Section 3H, will not serve the purpose. The dispute being of the nature triable by the Civil Court that the law steps in to provide for that to be referred to the decision of the Principal Civil Court of original jurisdiction. The dispute regarding apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, would then have to be decided by that Court."

24. It is also well settled law that when an alternative and equally

efficacious remedy is open to a litigant, he/she should be required to pursue that

remedy and not to invoke the jurisdiction of the High Court to issue a

prerogative writ. The case of "Radha Krishan Industries Vs. State of Himachal

Pradesh, reported as AIR 2021 SC 2114" is relevant to this extent. For facility

of reference, the relevant para of the said judgment is extracted as under: -

"....16. The High Court held that a writ is ordinarily not maintainable when there exists an alternative remedy. The exceptions to this rule are where the statutory authority has not acted in accordance with the provisions of the legislation; or acted in defiance of the fundamental principles of judicial procedure or where an order has been passed in violation of the principles of natural justice. The High Court held that it would not entertain a petition under Article 226 of the Constitution, if an efficacious remedy is available to the aggrieved person or where the statute under which the action complained of has been taken contains a mechanism for redressal of grievances. The High Court held that when a statutory forum of appeal exists, an appeal should "not be entertained ignoring the statutory dispensation."

CONCLUSION

25. Keeping in view the facts and circumstances of the case and

bearing in mind Section 3H(4) of the National Highways Act 1956, which

provides that if any dispute arises as to the apportionment of the amount or any

part thereof or to any person to whom the same or any part thereof is payable,

the competent authority shall refer the dispute to the decision of the Principal

Civil Court of original jurisdiction within the limits of whose jurisdiction the

land is situated, this court finds that there is an alternate efficacious remedy

available to the petitioners. Furthermore, it is also apparent that the petitions in

hand have raised disputed questions of fact which cannot be gone into by this

Court while exercising writ jurisdiction. As such, the instant petitions are not

maintainable and deserve dismissal.