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J&K High Court · body

2008 DIGILAW 8 (JK)

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

2008-01-30

MANSOOR AHMAD MIR

body2008
1. Petitioners have laid this motion for grant of the following reliefs: (i) Issue writ, direction or order in the nature of certiorari for quashing the letter No. DDF/C/2000/7810-14 dated 15-3-2000 issued by Deputy Director Fisheries (Central) RTC, Srinagar, respondent no. 5 (annexure P-18) and also the Award issued by respondent No. 4 on 18-11-2002 under No. SDM/LA/Son-29/2002 (annexure P-17) to the extent of area of land showing 100 kanlas instead of 298 kanals and 8 marlas situated at Rakhe Sultanpora, Tehsil Sonawari District Baramulla. bearing survey Nos. 1488/1, 1491 and 1540 of petitioners. (ii) Issue writ, direction or order in the nature of mandamus commanding the respondents to issue corrigendum to the Award (annexure P-17) by showing the land having been acquired to the extent of 298 kanals and 8 marlas instead of 100 kanals, in terms of statutory notifications issued under section 4, 6, 7, 9 (a) of J&K Land Acquisition Act and to pay the compensation thereof as per market value and in terms of Award so made by respondent no. 4. (iii) Issue writ, direction or order in the nature of prohibition restraining the respondents 3, 4 and 5 from resorting to any phased manner acquisition of the land measuring 298 kanals and 8 marlas situated at Rakhe Sultanpora, Tehsil Sonawari, District Baramulla, bearing survey No. 1488/1, 1491 and 1540 as not provided by the provisions of J&K Land Acquisition Act." 2. In order to decide the controversy involved in the writ petition more effectively and completely, brief facts of the case need to he noticed. 3. Petitioners owned and possessed land measuring 300 kanals situated at Rakhe Sultan Tehsil Sonwari. District Baramulla, the description of which is given in the writ petition. Respondent no. 4 initiated land acquisition proceedings and accordingly Collector concerned issued notification under section 4 of the J&K Land Acquisition Act (for short the Act) for acquisition of land measuring 298 kanals and 8 marlas) falling under survey nos. 1488, 1491 and 1540 for establishing a fish farm. In response to the notification issued under section 4 of the Act, petitioners field their objections and resisted the acquisition proceedings. The respondents there-after issued notifications under sections 6 and 7 of the Act. Interse communications ensued between the respondents -- Fisheries Department for sanctioning of Rs. 45 lacs as compensation to be paid to the land owners. In response to the notification issued under section 4 of the Act, petitioners field their objections and resisted the acquisition proceedings. The respondents there-after issued notifications under sections 6 and 7 of the Act. Interse communications ensued between the respondents -- Fisheries Department for sanctioning of Rs. 45 lacs as compensation to be paid to the land owners. There-alter notification under section 9 of the Act came to be issued. In terms of letter issued by respondent no. 3 for initiating acquisition proceedings in a phased manner and in the first phase, only 100 kanals of land have been acquired, for which funds to the tune of Rs. 50.29 lacs stood sanctioned and kept at the disposal of respondent no. 4 vide letter dated 15-3-2000. Accordingly award came to be passed contained in anneXure-P/17 for 100 kanals of land only. The petitioners feeling aggrieved of the award and the said letter, represented before respondent no. 4 with the request to pass a fresh award in accordance with the notification issued under sections 4 and 6 entire land measuring 298 kanals and 8 marlas and also for releasing of full payment of compensation in favour of the owners of the land. 4. The petitioners disputed adequacy of compensation in terms of award contained in annexure P/17 to the writ petition and prayed for making a reference to the civil court. Petitioners also submitted representation to the respondents and served notices to the them for readdressal of their grievances, but they failed to redress their grievances, which constrained them to file the petition in hand. 5. The grievance of the petitioners in nutshell is that the respondents were under an obligation to pass final award for entire kind measuring 298.8 marlas for which notification under section 4 of the Act was issued and to pay them the compensation for the entire land. 6. Respondents have resisted the petition on the ground that the petitioners cannot compel the respondents to acquire entire land and the department required only 100 kanals of land and accordingly award with respect to 100 kanals of land was passed and the awarded amount came to be disbursed. The respondents have further specially pleaded that the department took possession of only 100 kanals of land and not the entire land and they were within their rights to Withdraw the acquisition so far it relates to rest of the land. The respondents have further specially pleaded that the department took possession of only 100 kanals of land and not the entire land and they were within their rights to Withdraw the acquisition so far it relates to rest of the land. It is protiable to reproduce para 14 of the counter affidavit filed by respondents 3 to 5, hereunder:- In reply to the contents of para 24 and the grounds urged in the para. It is submitted that same are legally misconceived, untenable and without any merit. It is submitted that the Government is fully competent to acquire land as per their requirement and availability of funds an cant be forced to acquire the land in the excess of the requirement as same would be otherwise of no utility. The answering respondents further submit that they had already informed respondent no.4 about the requisition of 100 kanals of land only and it was impressed upon them that the department does not require the rest of land as such necessary steps may be taken for its de-notification. It was further impressed upon him that no funds are available with the department of acquiring the land in excess of 100 kanals. The answering respondents places on record the relevant correspondence and same are parked as annexures R-3, R-4 and R-5 respectively. It is further submitted that till date the answering respondents have neither taken over the possession of 100 kanals of land for which award has been passed funds have been placed by the answering respondent at the disposal of respondent no. 4 and the petitioners having received the compensation in full, nor the land has been demarcated. It is in place to submit here that the department had already acquired about 350 kanals of land al Mansbal falling within the vicinity of suit land, for establishment of National Fish Seed Farm Mansbal. The farm is nearing completion and is the biggest farm in the valley. In view of this also, the department does not require additional land beyond the requirement of 100 kanals as same will be of no utility and if the department is forced to acquire the land in excess of its requirement, public money will go waste." 7. Respondents 2 and 4 here also specially pleaded that respondents had taken possession of only l00 kanals of land as they required only that much of land. Respondents 2 and 4 here also specially pleaded that respondents had taken possession of only l00 kanals of land as they required only that much of land. It is profitable to reproduce relevant paras of the brief facts given in the counter affidavit of respondents 2 and 4: "............... Accordingly notification under the provisions of Section 9 & 9 (a) of the Act for an area of 298 kanals and 08 marlas has been issued vide this office No. SDM/LA/Son 29/2000 dated 9-3-2000. Before issuance of award, the Deputy Director (Central), TRC Srinagar, vide his letter No. DDF(C)/2000/2810-14 dated 15-3-2000 requested this office to initiate acquisition proceedings of 100 kanals only for phase-1 for which funds have been arranged. Accordingly the award has been issued on 31-3-2000 for land measuring 100 kanals only bearing No. 1491/M(37-03) dated 1540 (62-17)." 8. Heard learned counsel for the parties and perused the record produced by the respondents. The core question which calls for determination in this writ petition is whether petitioners can seek a writ commanding respondents to acquire entire land measuring 298 kanals and 08 marlas? The answer is in negative the following reasons: 9. In of section 16 of the Act the Government -department can withdraw from any acquisition proceedings. Admittedly award came to be passed only for 100 kanals of land, despite of the fact that notification under Sections 6, 7 and 9 came to be issued for entire land measuring 298 kanals and odd marlas. but award came to be passed only for 100 kanals. The petitioners disputed the adequacy of compensation and made an application under Section 18 of the Act. Respondents have specifically pleaded that the department has taken possession of only 100 kanals of land. Officer record produced for perusal, also discloses that respondents have taken possession of only 100 kanals of land and not of 298 kanals and 08 marlas. Petitioners have placed on record communication dated 14-8-2002 addressed by Deputy Commissioner, Baramula, to the Divisional Commissioner, Kashmir which also discloses that award came to be passed by Collector Land Acquisition for land measuring 100 kanals and possession whereof stands taken over by the department. Petitioners have placed on record communication dated 14-8-2002 addressed by Deputy Commissioner, Baramula, to the Divisional Commissioner, Kashmir which also discloses that award came to be passed by Collector Land Acquisition for land measuring 100 kanals and possession whereof stands taken over by the department. While going through the contents of annexure-P/14 annexed with the petition which is communication addressed by Collector/SDM Sopore to the Deputy Commissioner, Baramulla and therein also reference is made only about 100 kanals of land for which award has been passed and possession taken over and not for the entire land of 298 kanals and 8 marlas, as argued and projected by learned counsel for the petitioners. In the said letter, also reference is made of the communication dated 15-3-2000 (annexure-P/18) whereby Deputy Director fisheries had requested the Collector for initiating Acquisitions proceedings with regard to 100 kanals of land in the lust phase. It is no where mentioned in that letter that possession of entire land was taken over. In the given circumstances, it is prima facie established that the respondents have taken over possession of only 100 kanals of land for which award has been passed and the amount of compensation paid to the owners. 10. During the course of arguments, learned counsel for the petitioners argued that respondents cannot withdraw the acquisition proceedings and are bound to acquire entire land measuring 298 kanals and 08 marlas. 11. Keeping in view provisions of section 46 of the Act, respondents are within their rights to withdraw the acquisition proceedings of land of which, the possession has not been taken and writ petitioners cannot compel the respondents to acquire the entire land. I am fortified in my view by a Division Bench judgement of this court in case Rajiv Puri an another v. Naranian Mohalla Welfare Association & ors. [2004(2) JKJ 1] wherein their lordships have held: :........Section 46 of the Jammu and Kashmir Land Acquisition Act clearly contemplates that the Government can withdraw from the acquisition of land of which the possession has not been taken. There is nothing in section 46 which in any manner, limits the power of the State Government to withdraw from the acquisition of land, except that the possession of the land notified should not have been taken by the Government. There is nothing in section 46 which in any manner, limits the power of the State Government to withdraw from the acquisition of land, except that the possession of the land notified should not have been taken by the Government. This power having been exercised by the Government in this case bona-fidely cannot be by the When the Government has withdrawn from the acquisition the sufferers of the acquisition proceedings are the owners of the land in question alone who have a right to redress their grievances and none." 12. In terms of section 46 of the Act, neither any notice is required to he given to the owner(s) nor the owner is required to be heard before withdrawing the acquisition proceedings. My this view also fortified by the judgment supra. It is profitable to reproduce para 13 hereunder:- "....It is further pointed out that an owner need not be given any notice of the intention of the State Government to withdraw from the acquisition and the State Government is at liberty to do so. Even it is not required that the government should give reasons for its withdrawal while exercising power of withdrawal under section 46 of the Act unilaterally. There is also no necessity of hearing either the owner of the land or any other person interested before taking decision to withdraw from the acquisition. There is no particular mode or procedure for withdrawing from acquisition and it cannot be presumed or implied. That apart, the power of the government cannot, in any way, be curtailed even by invoking the doctrine of promissory estoppel. The Land Acquisition Act itself provides in unequivocal terms as to when it becomes impossible to withdraw under section 46 of the Act. Similar view has been taken by the Apex Court in Special Land Acquisition Officer, Bombay v. M/S Godrej and Boyee, AIR 1987 SC 2421 and held that the order of withdrawal need not he backed by reasons. Opportunity of hearing owner or any interested person is not necessary. Thus, the order of withdrawal in this case from acquisition, therefore, in our considered view, cannot be rescinded. The piece of land allotted to the appellants cannot he permitted to be used as park for the purpose other than one it was allotted viz. residential purpose indicated in the lease deeds produced by the allottees under the circumstances detailed above." 13. The piece of land allotted to the appellants cannot he permitted to be used as park for the purpose other than one it was allotted viz. residential purpose indicated in the lease deeds produced by the allottees under the circumstances detailed above." 13. Notice under section 9 came to be issued on 9-3-2000 and final award came to be passed on 18-11-2002. In terms of amendment to section 11-B, acquisition proceedings are to be taken to its logical end within two years from the date of publication of the declaration. If the acquisition proceedings are not taken to its logical end within the period stipulated under die Act, the acquisition proceedings lapses and dies if own death due to efflux of time. If is apt to reproduce section 11-B of the Act herein as under: - "11-B Period within which an award shall be made. The Collector Shall make an award under section 11 within a period of two years from the date of publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of land shall lapse. Provided that in case where the said declaration has been published before the commencement of the State Land Acquisition (Amendment), Act, l997, the award shall he made within a period of two years from such commencement. Explanation. -- In computing the period of two years referred to in this section, the period during which any action or proceedings to he taken in pursuance of the said declaration is stayed by an order of a court shall be extended 14. Admittedly more than five years have elapsed from the date of issuance of notification fill filing of die writ petition and more than eight years have elapsed till to date. Thus keeping in view the above provision of law, the acquisition proceedings have come to an end. 15. For the above reasons, the writ petition being without merit is dismissal. However, in the circumstances of the case, parties to bear their own costs.