Jammu & Kashmir High Court
Amanullah Khan vs Respondent(S) on 5 May, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
ATJAMMU
OWP No. 937/2023
Reserved on 24.04.2025.
Pronounced on:05.05.2025.
Amanullah Khan .....petitioner (s)
Through :- Mr. P.N.Raina Sr. Advocate with
Mr. J. Hamal Advocate.
V/s
.....Respondent(s)
UOI and others
Through :- Mr. Sumant Sudan Advocate vice
Mr. Vishal Sharma DSGI
Ms Monika Kohli Sr. AAG
Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1 The petitioner has filed the present writ petition seeking a
direction upon respondents No. 1 to 5 to pay due and just compensation for the
loss caused to him on account of demolition and closure of his brick kiln
situated at Malhori, resulting from the widening of Batote-Doda National
Highway (NH-1B).
2 As per case of the petitioner, he acquired land measuring 06
kanals and 07 marlas falling under khasra No.82, situated at Malhori, on lease
basis on the strength of a lease deed dated 29.08.1998 from its owner,
Sh. Kiker Singh. After obtaining the requisite licence for construction of a
brick kiln from the competent authority on 19.08.1999, the petitioner obtained
requisite permission from the J&K State Pollution Control Board on
01.08.2000. Accordingly, the petitioner was permitted to operate brick kiln on
the aforesaid land which is situated towards south on the uphill of Batote-Doda
National Highway (NH-1B) at Km 37.850 near Malhori. According to the
petitioner, he operated the brick kiln under the name and style of Khan Brick
Kiln, Doda for about eight years till the year 2008 when the project for
widening of National Highway NH-1B was undertaken by respondents No. 2
and 3. As a result of widening of the road, the brick kiln of the petitioner was
badly affected, and most parts of the kiln, including the approach road, got
damaged as some portion of the land on which the brick kiln was established
was brought under widening of the road. This, according to the petitioner,
rendered his brick kiln unworkable, as a result of which, he was constrained to
shut down the brick kiln even though the licence to operate it was valid upto
August, 2009. In this regard, the petitioner is stated to have approached the
licensing authority vide his communication dated 07.06.2010 followed by
communication dated 21.06.2010 addressed to respondent No.4 seeking
cancellation of the licence. It was made clear by the petitioner to respondent
No.4 that he was constrained to close down his brick kiln only because a
substantial port of it had come under the widening of National Highway NH-
1B at Malhori.
3 It is being submitted that the respondents did not assess and pay
compensation to the petitioner for the loss sustained due to the forced closure
of his brick kiln, which compelled him to approach respondent No.5, the
Collector Land Acquisition, by addressing a communication dated 10.06.2008
claiming compensation for the damages. However, no action was taken by the
said respondent though reports were called by the said Authority from the
subordinate authorities. The application of the petitioner is stated to have
remained pending with respondent No.5, who was seized of the land
acquisition proceedings under the provisions of J&K Land Compensation Act
with regard to the land that had come under the widening of the road in
question. On 19.09.2011, the petitioner submitted another application to
respondent No.5 reminding him about his prayer regarding assessment and
release of compensation for the loss caused on account of closure of the brick
kiln. The said application was processed by respondent No.5 and the reports
were sought from the Patwari and Naib Tehsildar concerned. The Patwari
submitted his report dated 15.11.2011, which was duly considered and
endorsed by the Naib Tehsildar, Khilani vide his endorsement dated
26.11.2011. The same was forwarded to respondent No.4 by the Tehsildar
Doda vide his communication dated 16.01.2012. Respondent No.4, in turn,
vide his communication dated 24.02.2012 sought title verification with regard
to khasra Nos.82, 83, and 109. A verification report dated 24.03.2012 was
prepared by the Patwari concerned which was countersigned by the Girdawar
and on this basis, the Naib Tehsildar, Khilani prepared his own report dated
31.03.2012 which was forwarded to respondent No.4 by the Tehsildar, Doda
vide his endorsement dated 07.04.2012.
4 Respondent No.4, the Additional Deputy Commissioner, Doda
vide his communication dated 04.05.2012, called upon respondent No.3 to
furnish his comments with regard to the damage caused to the brick kiln of the
petitioner due to the widening of the road in question. In response thereto,
respondent No.3, vide his communication dated 08.06.2012, conveyed to
Deputy Commissioner, Doda that there was no evident damage to the brick
kiln of the petitioner. Thereafter, the matter was taken up by respondent No.5
the Collector Land Acquisition, with respondent No.2, in terms of
communication dated 15.09.2012 and vide his communication dated
18.09.2012, respondent No.2 requested respondent No.5 to verify the facts in
light of the initial joint inspection report and not to forward such claims,
thereby denying any liability to pay any compensation to the petitioner.
5 Respondent No.5, with a view to settle the controversy, directed
Tehsildar Doda to depute the field staff for a joint inspection of the damage of
the brick kiln of the petitioner by associating respondent No.2. A joint
inspection was carried out by the field staff, headed by Naib Tehsildar, Khilani
in which the representative of respondent No.2 also participated. Accordingly,
a report dated 31.10.2012 was submitted by Naib Tehsildar Khilani, which was
endorsed by the Tehsildar Doda to respondent No.5 vide endorsement dated
01.11.2012. It has been submitted that respondent No.5 vide communication
dated 30.10.2012 forwarded the requisite revenue records including Tatima
Shajra, to respondent No.2 for authentication, but no action has been taken by
respondent No.2 in the matter.
6 According to the petitioner, assessment of the loss caused due to
the closure of his brick kiln and the damage to the brick link was conducted by
M/s S.K. Industrial Technical Consultant, and a report dated 05.04.2013 was
obtained from the said agency. The same was forwarded by the petitioner to
respondent No.5, the Collector Land Acquisition, vide communication dated
05.04.2013. Despite all these efforts, and completion of formalities by the
petitioner, the respondents have not taken any action for assessing the loss
caused to the petitioner and for releasing of compensation in his favour. It has
been contended that because of non-cooperation from respondent No.2,
respondent No.5 has not been able to conclude the land acquisition proceedings
and work out the compensation payable to the petitioner. Hence, the present
writ petition.
7 Respondents 1 to 3 have contested the writ petition by filing a
reply thereto. In their reply, it has been submitted that in the year 1990, the
road from Batote to Kishtwar was taken over by the Border Roads
Organization from the J&K State PWD for the purpose of its upgradation. It
has been submitted that the matter regarding acquisition of land for the purpose
of up-gradation of the said road was taken up with the Collector, Land
Acquisition, Doda and administrative approval for the same, from KM 0 to KM
45, was accorded on 29.03.2007. Compensation in the amount of Rs.425.925
lacs for the acquisition of a total 331 kanals and 15 marlas of land, which
included 46 kanals and 10 marlas at Khilani, was assessed. The said
compensation was deposited by respondents No. 1 to 3 with the Collector Land
Acquisition, Doda, in terms of letter dated 18.07.2007. It has been further
submitted that after the deposition of the amount of compensation, the work on
the stretch of land, which is the subject matter of the present writ petition, was
completed in the year 2012. According to respondents 1 to 3, the brick kiln of
the petitioner is located along the hillside of the Batote-Kishtwar road at KM
37.100. It has been submitted that boundary wall of the brick kiln has been
constructed beyond 36 feet to 46 feet from the centre of the road, and that at
this particular point, the width of the land acquired is only 61 feet. It has been
claimed that the brick kiln of the petitioner is situated beyond the land width of
61 feet, therefore, no part of the brick kiln was acquired, nor was it considered
by the authorities for acquisition. This position was made clear to the Deputy
Commissioner, Doda, when comments were sought by the said authority. It
was also pointed out to the Deputy Commissioner that the entire
estimated/awarded amount has already been settled by the Collector Land
Acquisition and the same has been deposited with the said office and according
to respondent Nos. 2 and 3 at this belated stage, it was not possible to prove
that any damage was caused to the brick kiln of the petitioner.
8 It has been contended that Tehsildar Doda and other revenue
authorities have no jurisdiction or authority to assess any damage over and
above the final award of Collector Land Acquisition, but these authorities have
ignored the award of the Collector and issued favourable reports in favour of
the petitioner with mala fide intentions. It has been claimed that the
assessment made by the technical consultancy firm, which has been produced
by the petitioner, is without any authority from the Collector Land Acquisition,
Doda and, as such, the same cannot be considered. It has also been claimed that
the petitioner is not the owner of the land that was acquired for widening of the
road in question, as such, he does not have any locus standi to file the present
writ petition. It has been submitted that the original owner of the land, Sh.
Kiker Singh, has not filed any objections against the award, nor has he
challenged the actions of respondent Nos. 1 to 3.
9. Respondents 1 to 3 also filed an application bearing MP No.
01/2015, seeking deletion of their names from the array of respondents . In the
said application, it has been submitted that the road in question has now been
handed over back to the PWD of the State Government for further
development, as such, respondents 1 to 3 have no role in the road/project in
question. On this ground, it is being contended that respondents 1 to 3 cannot
be asked to pay any compensation to the petitioner.
10. Respondents 4 to 6 have filed their joint reply, in which it has
been submitted that the petitioner had obtained certain portion of land in
village Malhori on a lease basis during the year 1998 from its original owner,
where-after, he had obtained licence for operating the brick kiln from Tehsildar
Doda, in terms of communication dated 19.08.1999, and the said licence was
renewed up to 17.08.2009. As per this licence, the brick kiln was to be
established on Batote-Kishtwar National Highway, in khasra Nos. 82, 83, and
109 of village Malhori. It has been submitted that pursuant thereto, the
petitioner had constructed his brick kiln and had also constructed a path from
National Highway 1B leading up to the site of the brick kiln. It has been further
submitted that additional land was acquired in various villages in Tehsil Doda
adjoining NH-B1 for its up-gradation, after receiving proper indent from the
GREF authorities where-after the land was handed over to the indenting
department viz GREF. The compensation is stated to have been assessed and
disbursed to the interested persons . According to respondents 4 to 6, no indent
for acquisition of land situated at village Malhori was received by the
Collector, as such, the proceedings for acquisition of the land under and
appurtenant to the said brick kiln could not be initiated by the Collector.
11. It has been submitted that once the application was received from
the petitioner, a report from the revenue field agencies was obtained and it was
found from the report that land measuring 3 kanals 16 marlas of khasra No. 82
min, 02 kanals , 07marlas of khasra No. 109 min, and 03 marlas of khasra
No. 83 (total 06 kanals 06 marlas) of village Malhori had come under the
widening of the road in question. It was also found that the petitioner had
constructed a brick kiln on the land comprised in khasra No. 82 min, and he
had also constructed accommodation for an office, a chowkidar room, and
three rooms for residential purposes. It was also found that in khasra No. 83
min, the petitioner had constructed two water pools, whereas in khasra No. 109
min, the link road leading up to the brick kiln was constructed by him. It has
been submitted that the aforesaid report was forwarded to respondent No.4, but
instead of submitting a proper indent, the said respondent intimated that no
damage was caused to the brick link due to the widening of the road.
12 Thereafter, the case of the petitioner was taken up with
respondent No.2, and the Tehsildar Doda was directed to conduct a joint
inspection by associating the representative of the indenting department. It has
been submitted that after the joint inspection with the representatives of the
GREF, it was revealed that even after decreasing the width of the road at the
site in question from 88 feet to 65 feet, some area of the brick kink had come
under the widening of the said road. It was also found by the field agency that
the brick kiln had become non-functional. Accordingly, the matter was again
taken up with the indenting department by respondent No.5, in terms of
communication dated 30.10.2012 ,but no proper indent has been received from
the GREF authorities, as a result of which, the Collector Land Acquisition,
Doda viz., respondent No.5, is unable to proceed ahead in the matter.
13 I have heard learned counsel for the parties and perused the
material on record.
14 On the basis of the facts which emanate from the pleadings of the
petitioner and respondents No. 4 and 6, the revenue authorities, it appears that
the petitioner had established a brick kiln adjacent to the National Highway
NH-B1, on the land falling under survey No. 82 at village Malhori. It also
appears that he had constructed a link road from the National Highway to the
site of the brick kiln and had also raised certain other structures thereon. As
per the record, the brick kiln was being operated by the petitioner after
obtaining the requisite licence and clearance from the Pollution Control Board.
The licence for the brink kink was valid up to August 2009.
15 Admittedly, the land on which the brick kiln was established was
taken on lease by the petitioner, and he was not the owner of the said land.
While the petitioner and the revenue authorities claim that a portion of the land
on which the brick kiln was established was utilized by respondents No. 1 and
2 for up-gradation of the road thereby causing damage to the brick kiln and
forcing its closure, respondent 1 and 2 claim that no portion of the land on
which the brick kiln was set up by the petitioner was utilized for widening of
the road, and that no damage was caused to the brick kiln on account of
up-gradation of the road.
16 So far as the claim of the petitioner that a portion of the land on
which the brick kiln was set up by him has come under the upgraded road
which has resulted in damage to the brick kiln and its consequent closure and
denial of the said claim by respondents 1 and 2 is concerned, the same, it
seems, has been resolved by the revenue authorities, viz respondents No. 4 to
6. A joint inspection, in which not only the petitioner but even the
representatives of respondents No. 1 to 3 were associated by the concerned
Tehsildar, has been conducted to ascertain the factual position. In the report
dated 31.10.2012, prepared by the Naib Tehsildar concerned after conducting
inspection of the site in presence of the petitioner and representatives of GREF,
it has been clearly mentioned that even after reducing the width of the road at
the relevant point from 82 feet to 65 feet, the land on which the brick kiln had
been established has come under the road and that the GREF department has
raised construction thereon. The report is accompanied by Tatima Shajra,
which also depicts that a portion of the land on which the brick kiln is existing,
has come under the road. Further, vide letter dated 30.10.2012, the Collector
has informed the indenting department that, after conducting the joint
inspection, it has been established that the brick kiln installed by the petitioner
has come under the widening of NH- B1 at village Malhori. It has also been
intimated to the indenting department that the work of the kiln has been
stopped for the last four years.
17. Respondents 1 to 3 dispute the findings of the joint inspection
report and claim that no portion of the land on which the brick kiln was
established has been utilized for up-gradation of the road and that no damage
has been caused to the kiln. In this regard, it is to be noted that in terms of the
provisions of the Land Revenue Act, it is the Revenue Authorities who are
vested with the power to undertake demarcation of land whenever any dispute
arises as to the boundaries of land in the occupation of contesting parties. In
the present case, the revenue authorities have, after conducting a joint
inspection in exercise of their powers under the provisions of the Land
Revenue Act, found that a portion of the land which is under the brick kin set
up by the petitioner has been utilized by the respondents 1 to 3 for up-gradation
of the road.
18. Respondent Nos.1 to 3 have not challenged the aforesaid report of
demarcation by resorting to appropriate proceedings before the higher
authorities, and instead of doing so, they have rejected it at their own level
without adopting due process of law. Mere rejection of the joint inspection
report by respondents No. 1 to 3 does not affect the validity of the said report.
The same is binding upon respondents No.1 to 3 unless it is set aside by a
competent authority. Since respondents No. 1 to 3 have not laid any challenge
to the joint inspection report before the competent authority, as such. it does
not lie in their mouth to dispute its veracity. Thus, the same is binding upon
both the petitioner as well as upon respondents No. 1 to 3.
19 Having held that a portion of the land on which the brick kiln was
established by the petitioner has been utilized by respondents 1 to 3 for up-
gradation of the road at the relevant site, the question that arises for
determination is as to whether respondent No.5, the Collector Land
Acquisition, after having completed the acquisition proceedings, is competent
to assess the compensation for the loss caused to the petitioner on account of
the closure/damage to the brick kiln. In this regard, the learned counsel for
respondents 1 to 3 has contended that respondent No.5, the Collector, after
rendering his award, has become functus officio, and it is not open to the him
to pass an additional award at this stage. It has been further contended that
there is no provision in the J&K Land Acquisition Act which vests powers with
the Collector to pass a supplementary or additional award.
20 It is true that an award in respect of acquired land must be made
before the expiry of two years commencing from the date of the declaration
issued by the State under Section 6 of the Act. However, the Supreme Court, in
the case of Mohanji and another vs. State of UP and others, JT1995 (8) SC
599 has held that once an award has been made, it cannot be stated that no
award could be made thereafter in respect of buildings, trees and machinery,
etc. It has been further held that the land owners or interested persons would be
entitled to claim compensation for these items by seeking a reference under
Section 18 of the Act.
21 Relying upon the aforesaid ratio laid down by the Supreme Court,
a Division Bench of this Court, in the case of Divisional Commissioner vs.
Ghulam Nabi Bhat and others, 2012 (4) JKJ(HC) 241 has held that there is
no impediment for payment of compensation by the State by publishing a
supplementary award in respect of the trees, super-structure and machinery, if
the same has been omitted in the original award. It has been further clarified
that payment of compensation in respect of the super-structure, trees and
machinery would not result into lapse of proceedings having gone beyond a
22 In view of the aforesaid binding precedent laid down by the
Division Bench of this Court, it is clear that merely because respondent No.5,
the Collector, has already made an award in respect of the land which has been
utilized by respondents No. 1 to 3 for up-gradation of the road in question, the
said respondent does not become functus officio. It is open to respondent No.5
to consider the claim of the petitioner for compensation relating to the alleged
damage caused to his brick kiln and the loss incurred on account of closure of
the brick kiln due to up-gradation of the road in question by respondents No. 1
to 3 and to pass a supplementary award.
23 It has also been contended by respondents No. 1 to 3 that because
the road has now been handed over to the State PWD, as such, they have
nothing to do in the matter. The said contention of respondents No. 1 to 3 is
without any substance because the road has been constructed/upgraded by
them, and not by the PWD authorities. The process of acquisition in respect of
the land utilized for the road up-gradation was initiated by respondents No. 1 to
3, therefore, any further proceeding, including those relating to payment of
compensation to the rightful claimants, are the responsibility of respondents
No. 1 to3 and not that of the PWD. Thus, respondents No. 1 to 3 cannot
absolve themselves of their liability to pay compensation to the petitioner
merely by handing over the road to PWD authorities.
24 For the foregoing reasons, the writ petition is allowed. Respondent
No.5, the Collector Land Acquisition is directed to initiate proceedings for
assessment of the loss caused to the petitioner on account of damage to his
brick kiln, and also on account of loss of business suffered by him due to the
upgradation of the road by respondents No. 1 to 3. Respondents No. 1 to 3 shall
render full assistance and cooperation to respondent No.5 in this regard,
including deposition of compensation that may be assessed by respondent
No.5, which shall thereafter be disbursed in favour of the petitioner. The entire
exercise shall be completed by the respondents within a period of six months
from the date a copy of this judgment is made available to them.
(SANJAY DHAR)
Jammu JUDGE
05.05.2025.
Sanjeev
Whether the order is speaking: Yes
Whether the order is reportable: Yes
