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2008 DIGILAW 316 (JK)

Ab. Hamid Wani v. State Of J. &K.

2008-08-02

K.S.RADHAKRISHNAN, MOHAMMAD YAQOOB MIR

body2008
Per K.S. Radhakrishnan, CJ: 1. Government of Jammu and Kashmir, Civil Secretariat, Revenue Department, issued a notification dated April 12, 1999 under section 6 of the State Land Acquisition Act, 1990, stating that land measuring 298 Kanals and 08 Marlas is needed for construction of fish farm at village Rakh Sultanpora, Tehsil Sonawari, District Baramulla. It also authorized Collector, Land Acquisition, SDM, Sopore, under section 7 of the Act to take order for acquisition of the land as per specifications mentioned therein. The Government also directed the Collector to inform the indenting department to deposit cost of the land to his Collectorate and issue a declaration under section 17 of the Act Collector accordingly took action and issued notice dated March 9, 2000 under sections 9 and 9-A of the State Land Acquisition Act to the owners / interested persons in the land to attend his office on March 24, 2000 at 11 a.m. to put forth their written objections, claims and interests, if any, with regard to measurement, rate of compensation or its apportionment and nature of their interest / claim in the land. Collector also made request to Deputy Director (Central), Fisheries Department, Srinagar to make available the requisite funds. 2. The Deputy Director, Fisheries, however, in turn sent a letter on March 15, 2000 to the Collector stating that the acquisition proceedings be initiated only for 100 Kanals for Phase-l for which amounts have been made available. Operative portion of the communication is as follows: "...In this connection, I am to request you to initiate the acquisition proceedings of 100 (one hundred) Kanals only for Phase-I for which funds to the tune of Rs.50.29 lacs have been already kept at your disposal..." 3. Copy of the communication was also sent to Commissioner, Fisheries, J&K Government, Srinagar. Referring to that letter Collector sent a communication dated June 3, 2002 to Deputy Commissioner, Baramulla to the effect that "possession of the land stands taken over". The Collector later passed an award dated November 18, 2002 which reads as follows: "...The Deputy Director, Fisheries (Central), TRC, Srinagar vide his communication resting with the no.DDF/C/2000/7810-14 dated 15.3.2000 has requested to initiate the acquisition proceedings for only 100 Kanals instead of 298 Kanals 08 Marlas for which the funds have been kept at the disposal of Collector, Sub-Divisional Magistrate, Sopore. To arrive at a reasonable rate the report regarding rates prevailing in the village furnished by the Tehsildar Sonawari where under he has intimated that the market value of the land is Rs. 63,000/- per Kanal. Taking into consideration of the request made by the Deputy Director Fisheries (Central) the tentative Award for only 100 Kanals and recommendation of Tehsildar and potential / residential value has been taken into account and a rate of Rs. 55,000/- per Kanal and 15% Jabirana allowed over and above it stands to have been adopted and accordingly case submitted to the Deputy Commissioner, Baramulla for according approval of rates vide this office No.SDM/LA/Son-29 dated 31.3.2000." 4. The Collector has stated that approval to the rate has been accorded by the Financial Commissioner, Revenue, J&K, Srinagar vide his letter dated November 7, 2002. Consequently, the award was passed for 100 Kanals of land for a total cost of Rs. 63,25,000. Award was evidently passed under section 11(4) of the State Land Acquisition Act. Once the award is filed in the Collectors office under section 12 of the Act it shall be final and conclusive evidence between the Collector and the persons interested with regard to the true area, the value of the land, etc. 5. Petitioners, land owners, then approached this Court under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir seeking a writ of certiorari to quash the inter-departmental communication dated March 15, 2000 sent by Deputy Director (Central), Fisheries "Department, TRC, Srinagar to the Collector and also the award passed by the Collector dated November 18, 2002 to the extent it acquired only 100 Kanals of land instead of 298 Kanals and 08 Marlas. Petitioners also sought a mandamus directing the respondents to issue corrigendum to the award by showing the land having been acquired to the extent of 298 Kanals and 08 Marlas instead of 100 Kanals in terms of statutory Notifications issued under Sections 4, 6, 7, 9 and 9-A of the State Land Acquisition Act and to pay compensation accordingly; and also for consequential reliefs. Learned Single Judge found no reason to grant the reliefs prayed for and dismissed the writ petition, and, hence, this appeal. 6. Mr. Learned Single Judge found no reason to grant the reliefs prayed for and dismissed the writ petition, and, hence, this appeal. 6. Mr. R.A. Jan, learned counsel for the appellant submitted that Collector has committed a grave error in not acquiring 298 Kanals and 08 Marlas in terms of the declaration issued under section 6 of the State Land Acquisition Act by the State Government. Learned counsel also submitted that Deputy Director, Fisheries has no jurisdiction or power to tingle with the declaration made by the Government under section 6 of the Land Acquisition Act by restricting the acquisition of land to 100 Kanals. Counsel submitted that the Collector should not have acted on the letter of the Deputy Director limiting the area to 100 Kanals while the declaration issued by the Government was for acquisition of 298 Kanals 08 Marlas. Further, learned counsel pointed out that Government issued notification under section 6 of the Act after following the requirements of the provisions of section 4 of the Act. Learned counsel submitted that in pursuance of the notifications issued under section 4, 6 and 7 of the Act, Collector also issued notice under sections 9 and 9-A of the Act calling upon owners/interested persons in the land, including the petitioners, to attend his office to put forth their written objections, claims and interests, and petitioners and other interested parties filed their objections. Learned counsel submitted that only the Government have got the power to withdraw from the acquisition proceedings under section 46 of the Act and Government have not passed any order withdrawing the acquisition proceedings in respect of 298 Kanals and 08 Marlas of land. Counsel also referred to the decision of the Supreme Court in Satendra Prasad Jain v. State of U.P. (1993) 4 SCC 369, and contended that section 11-B of the Act has no application since possession of the land was taken prior to the making of the Award under section 11 of the Act. 7. Learned Government counsel and the counsel appearing for Fisheries Department contended that petitioners have no locus standi to challenge the interdepartmental communication sent by the Fisheries Department to the Collector. Learned counsel also submitted that no writ of mandamus can be issued to compel the respondents to acquire the entire land notified, when the Award was passed only in respect of 100 Kanals of land. Learned counsel also submitted that no writ of mandamus can be issued to compel the respondents to acquire the entire land notified, when the Award was passed only in respect of 100 Kanals of land. Government found no reasons to take exception to the stand taken by the Deputy Director, Fisheries (Central) to limit the acquisition to only 100 Kanals. Further, it was also pointed out that the Fisheries Department had already acquired about 350 Kanals of land at Manasbal falling within the vicinity of the land for establishment of National Fish Seed Farm and the same is nearing completion. No further land is, therefore, required for the fish farm at Rakh Sultanpora. 8. Petitioners, in our view, have no legal right to seek a writ of mandamus compelling the Government, the Collector or the Deputy Director, Fisheries (Central) to acquire 298 Kanals and 08 Marlas of land even though the same was notified for acquisition and a declaration was also made to the effect under section 6 of the Land Acquisition Act. Law is well settled that right will accrue to the claimants / interested parties to insist that the land be acquired only after the award is passed. Before an award is passed, no right of the petitioners or other interested parties is affected or created. When an award is passed under section 11(4) read with section 12 of the Act, it shall be binding on the Collector and the persons interested and shall be final and conclusive evidence between them of the true area and the value of the land, and the apportionment of the compensation among the persons interested. Law is also well settled that if possession of the land had not been taken in pursuance of the award and continued in possession of the owner, the Government have full liberty to withdraw or abandon the acquisition proceedings. When a declaration is made under section 6 it shall be conclusive evidence only with regard to the fact that it is needed for public purpose and that, after making such declaration, the Government may acquire the land. But when the award is made under section 11(4) and it is filed as per section 12, it shall be final and conclusive evidence of the true area of the land which is to be taken possession of. But when the award is made under section 11(4) and it is filed as per section 12, it shall be final and conclusive evidence of the true area of the land which is to be taken possession of. In other words, the declaration under section 6 amounts only to a decision on the part of the Government to acquire and the mode of acquisition has to follow. 9. The facts of the case would clearly indicate the Collector has taken possession of only 100 Kanals of land; rest of the land is still with the claimants. True the Collector has no power to drop acquisition proceedings, but requisitioning authority can always impress upon the Government or the Collector to limit the area of land to be acquired even if section 6 declaration has been made, but before making the award. The mere fact that the Government have issued declaration under section 6 of the Act would not confer any right on the petitioners to insist that the Government should acquire the entire area of land mentioned in the declaration. Even after issuance of declaration under section 6 of the Act, Government or the Collector and the requisitioning authority can abandon or limit the area to be acquired and the Government in a given case can invoke section 46 of the Act withdrawing from acquisition proceedings. No duty, however, is cast on the Government, Collector or the requisitioning authority to acquire the entire area of land notified under section 6 of the Act, and hence no corresponding rights of the petitioners to insist that they should acquire the entire land. Consequently, no writ of mandamus can be issued directing the respondents to acquire the entire land for which declaration was made under section 6 of the State Land Acquisition Act. 10. Government have not invoked section 46 since the acquisition proceeding itself has lapsed under section 11-B of the Act. Section 11-B says when the Government fails to make an award within two years from the date of publication of the declaration under section 6 and no award is made within that period, the entire proceedings for acquisition of land shall lapse. The Apex Court in Satendra Prasad Jain v State of U. P. (supra) only says that the Government cannot withdraw from acquisition under section 48 once it had taken possession of the land. The Apex Court in Satendra Prasad Jain v State of U. P. (supra) only says that the Government cannot withdraw from acquisition under section 48 once it had taken possession of the land. In the present case, as per the award only 100 Kanals of land was taken possession of, and the declaration made in respect of the balance area has already lapsed statutory, since the Collector failed to make an award for the balance area within two years from the date of publication of the declaration. Since acquisition proceedings in respect of the balance area has lapsed statutory under section 11-B no writ of mandamus can be sought for reviving a lapsed declaration. Further, no allegation of mala fide has either been pleaded or proved for not acquiring the entire 298 Kanals 08 Marlas of land. 11. In the circumstances, we find no illegality or irregularity in the judgment of the learned Single Judge. Appeal lacks merit and is dismissed.