Jammu & Kashmir High Court
Mohd Khalid Aged 49 Years vs Union Territory Of J&K Through on 26 February, 2024
Sr. No. 53
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
ATJAMMU
WP(C) No. 2247/2021
CM No. 6484/2021
CM No. 8006/2021
1. Mohd Khalid aged 49 years
S/O Faiz Mohd, R/O Ward No.1, Draba
Tehsil Surankote District Poonch.
2. Mohd Hanief aged 62 years,
S/O Farman Ali, R/O Ward No.1, Draba
Tehsil Surankote District Poonch.
3. Mohd Muzaffar aged 42 years,
S/O Faiz Akbar, R/O, Draba
Tehsil Surankote District Poonch
4. Mohd Zakir Aged 44 years,
S/O Mohd Alam, R/O, Draba
Tehsil Surankote District Poonch
5. Mohd Tariq Malik age 52 years
S/O Habib Ali Khan, R/O, Draba
Tehsil Surankote District Poonch
6. Ikhlaq Hussain aged 64 years
S/O Samundar Khan, R/O, Draba
Tehsil Surankote District Poonch .....Petitioner(s)
Through :- Mr. G S Thakur, Advocate
v/s
1. Union Territory of J&K through
Commissioner/Secretary to Govt. Revenue,
Civil Secretariat, Jammu.
2. Assistant Commissioner (Revenue),
Collector Land Acquisition, District Rajouri.
3. Tehsildar Surankote, District Poonch. .....Respondent(s)
Through :- Ms. Nazia Fazal, Advocate vice
Mrs. Monika Kohli, Sr.AAG
CORAM: HON'BLE MR. JUSTICE M A CHOWDHARY, JUDGE
JUDGMENT(ORAL)
26.02.2024
1. Petitioners, claiming to be the owners in possession of the land comprising
of Survey Nos. 441, 442 and 443 of Village Draba Tehsil Surankote
District Poonch, whereon they have constructed residential houses and
established business shops, while calling in question the initiation of
acquisition of their properties for widening of Surankote-Bafliaz Bye-Pass
Road by the GREF, through the medium of this petition have sought the
following reliefs:
a) Writ of Certiorari quashing the Notification u/s 4(1) of the Land
Acquisition Act Svt 1990, whereby the land and the houses
along with shops constructed thereon have been notified by
virtue of Notification No. Col/DEL/OQ/2019-20/760-64 dated
30.09.2019.
b) Writ of Prohibition prohibiting the respondents from acquiring
the land, residential houses and the shops of the petitioners
without adopting due course of law as envisaged under the Right
to Fair Compensation and Transparency in Land Acquisition
Rehabilitation and Resettlement Act 2013 or without paying
compensation and rehabilitating the petitioners as per the
mandate of law.
2. It has been pleaded that the impugned notification has been issued in terms
of the J&K Land Acquisition Act, which has been repealed since the J&K
Reorganization Act 2019 came into existence on 09.08.2019 and the
impugned notification has been issued on 30.09.2019 under Section 4 of
the J&K Land Acquisition Act 1990 (Svt), as such, is nonest in the eyes of
law. Once a statute has been repealed thus there is no question of issuing
the notification under the said statute.
3. Pursuant to notice, respondent-Collector Land Acquisition (Defence)
Rajouri-Poonch has filed objections to the writ petition and admitted in
Para 8 that the de novo proceedings are required to be initiated in this case.
Para 8 of the response, for convenience, is reproduced as under:
"8. That respondent No.2 after perusing the record and in the
facts and circumstances of the case requested District Collector
Poonch that competent authority may please be requested to
withdraw the notification under sections 6 & 7 of the Land
Acquisition Act 1990 (Svt) issued on 27.05.2020 so that the de
novo proceedings for the acquisition of land in the instant case
can be initiated as per law as construction of the road in question
is underway and the executing agency is pressing for the
completion of land acquisition proceedings."
4. The State law pertaining to the Land Acquisition having been repealed
before the issuance of the impugned Notification, the same could not have
been issued legally and the acquisition proceedings ought to have been
initiated in terms of the Central Statute „the Right to Fair Compensation
and Transparency in Land Acquisition, Rehabilitation and Resettlement
Act 2013 made applicable to the Union Territory of J&K after
Reorganization Act 2019. The respondent-Collector has decided to
withdraw the earlier notification issued under Local Land Acquisition Act
1990 (Svt) and proposed to initiate acquisition of the land as per new law
applicable in the field.
5. Having regard to the foregoing discussion and observations made
hereinabove, the impugned notice being issued illegally, is not sustainable
and is liable to be quashed. Viewed thus, the Writ Petition is allowed and
the impugned Notification No. Col/DEL/OQ/2019-20/760-64 dated
30.09.2019 issued by the Collectorate Defence Rajouri is hereby quashed.
The respondents, however, if interested shall be at liberty to proceed in the
matter of acquisition of the properties of the petitioners, in accordance with
law and till then the petitioners shall not be dispossessed from their
houses/land/shops.
6. Disposed of along with pending application(s).
(M A Chowdhary)
Judge
JAMMU
26.02.2024
Vijay
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
