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2001 DIGILAW 18 (JK)

Mandir Pir Badesar Mahadev v. C. Phon Sog

2001-01-31

T.S.DOABIA

body2001
JUDGMENT 1. Proceedings taken under Jammu and Kashmir Requisition and Acquisition of Immovable Property Act, 1968 (herein after referred to as the 1968 Act), culminated in issuance of notice under Section 7(1) of the aforementioned Act. For facility of reference, this notice is reproduced below: "Goverment of Jammu and Kashmir Home Department NOTICE-J Whereas notice under the proviso to subsection (1) of Section 7 of the J&K Requisitioning and Acquisition of Immovable Proper Act, 1968 were issued by the Government to the below noted persons being the owners/ allotters/ tenants of the land described in the sub-joint table calling upon them to show cause within the period specified therein as to why the said property should not be acquired; And whereas the said period has expired and the aforesaid owner/ allottees/ tenants have conveyed their no objection for the acquisition of said land to the Government. Now, therefore in exercise of the powers conferred by sub-section (1) of Section 7 of the aforesaid Act, the Government having been satisfied that it is necessary so to do, hereby acquire the said property.__________________ 2. As compensation was not being paid to the petitioner, he approached this court. The writ petition was disposed of with the following direction "1) That the State of Jammu and Kashmir would consider the request made by the Union of India and pass further orders. 2) Let action be taken within a period of three months. 3) If the Union of India wants to retain the property, then the compensation be paid. 4) If Union of India wishes to retain the property and wants to pay compensation and in case petitioner objects to the same, then further steps as indicated in sub-paras (iii) and (iv) be taken within the further period of three months". 3. As the arbitrator was not appointed in terms of order passed by this court, the petitioner has come to this court. Petition has been filed for initiating contempt proceedings. 4. The learned counsel appearing for the State submits that Union of India is not keen to have this property on acquisition basis. They, however, want to remain in possession. 5. It be seen that the stand as projected now is not tenable. Petition has been filed for initiating contempt proceedings. 4. The learned counsel appearing for the State submits that Union of India is not keen to have this property on acquisition basis. They, however, want to remain in possession. 5. It be seen that the stand as projected now is not tenable. Once proceedings initiated under Section 7(1) of the 1968 Act are complete and the notice is published in the Government Gazette, then that property is to vest free from all encumbrances in the authority for whose benefit acquisition is made. This is plain meaning of Section 7(1) and (2) of the 1968 Act. These provisions are reproduced below: "Section 7. Power to acquire requisitioned property: (1) Where any property is subject to requisition, the Government may, if it is of opinion that it is necessary to acquire the property for a public purpose, at any time acquire such property by publishing in the Government Gazette a notice to the effect that the Government has decided to acquire the property in pursuance of this section; Provided that before issuing such notice the Government shall call upon the owner of or any other person who in the opinion of the Government may be interested in such property should not be acquired and after considering the cause, in any, shown by any person interested in the property and after giving the parties an opportunity of being heard, the Government may pass such orders as it deems fit. (2) When a notice is aforesaid is published in the Government Gazette, the requisitioned property shall, on and from the beginning of the day on which the notice is so published, vest absolutely in the government free from all encumbrances and the period of requisition of such property shall end". (2) When a notice is aforesaid is published in the Government Gazette, the requisitioned property shall, on and from the beginning of the day on which the notice is so published, vest absolutely in the government free from all encumbrances and the period of requisition of such property shall end". 6) The fact that the notice was published in the official gazette is also borned out from government notification which is also being reproduced below: "Government of Jammu and Kashmir Home Department NOTICE-J Whereas notice under the proviso to subsection (1) of Section 7 of the J&K Requisitioning and Acquisition of Immovable Property Act, 1968 were issued by the Government to the below noted persons being the owners/ allottees/ tenants of the land described in the sub-joint table calling upon them to show cause within the period specified therein as to why the said property should not be acquired; And whereas the said period has expired and the aforesaid owners/ allottees/tenants have conveyed their no objection for the acquisition of said land to the Government. Now, therefore, in exercise of the powers conferred by sub-section (1) of Section 7 of the aforesaid Act, the Government having been satisfied that it is necessary so to do, hereby acquire the said property�. By order of the Government of Jammu and Kashmir. Sd/- Addl. Sec. to Govt. Home Department 7. In view of the above, it is established that formalities which were required to be gone into, were gone into. The official notification came to be issued in terms of Section 7(2). The question now arises as to whether the respondent state can take a plea that it can withdraw from the acquisition. 8. The Stage at which the Government can withdraw from the acquisition is before the property come to vest with the acquired authority. Once the process of initiation is completed and possession is taken by the appropriate Government then the concerned authority ceases to have the power to withdraw from acquisition. This aspect of the matter was considered by the Supreme Court in the case reported as Lt. Governor of HP. vs. Sri Avinash Sharma 1970(2) SCC 149. This was the case under Land Acquisition Act. The provision of Section 48 were considered. This aspect of the matter was considered by the Supreme Court in the case reported as Lt. Governor of HP. vs. Sri Avinash Sharma 1970(2) SCC 149. This was the case under Land Acquisition Act. The provision of Section 48 were considered. It was observed that once a property vests in the appropriate government then by no process it can be diverted to the original owner by merely cancelling the notification. The aforementioned observations were approved in a later decision in the case reported as Murai and Others vs. Union of India, 1996 Supreme Court 712. In view of the above position of law, the stand taken by the respondents that it is not bound to pay compensation is held to be contrary to the decision given by the Supreme Court. The respondents would accordingly re-examine the matter and take appropriate decision with a view to release the compensation within a period of two months from the date copy of the order passed by this court is made available by the petitioner to the respondents. The compensation as determined by the acquiring authorities be paid. If the petitioner feels aggrieved of that order and if he makes a prayer for appointment of arbitrator, then this aspect of the matter be also taken note of as the direction regarding this has already been given in the writ petition. 9. Contempt petition is disposed of accordingly with a liberty to the petitioner to file fresh petition in case need arises. Contempt proceedings are dropped.