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2009 DIGILAW 454 (JK)

Harbans Singh v. J. D. A

2009-09-15

J.P.SINGH

body2009
1. Land measuring 17 marlas, comprised in Khasra No. 50, Khewat No. 31 & Khata No. 178, situated at Village Channi Himmat, Jammu, purchased by the petitioners, to construct houses and shops, vide Sale Deed of January 31, 1969, was part of big chunk of land, which appears to have been acquired by the State of Jammu and Kashmir for its transfer to the Jammu Development Authority, respondent No.1, (hereinafter to be referred as the "Authority", for short), for establishing a Housing Colony. 2. Complaining that the compensation awarded therefor, was a paltry amount of Rs.8,952.27, and that despite assurance, the Authority had not allotted a plot of land, of the same size, as that of the petitioners land, the petitioners have filed this writ petition seeking issuance of a command to the Authority to allot Plot no. 141/1, Trikuta Nagar Extension, Jammu, adjoining to the petitioners land, or Plot No. 142 measuring 131/2 marlas allotted to Dr. Roop Lal, besides 31/2 marlas of land, located elsewhere in the Colony. 3. They have placed on the records, a copy of the Notice dated 15.07.2002, served by them through their Advocate, on the Vice Chairman of the Authority, complaining about the refusal of its functionaries to accede to his request, besides indicating that he would approach the Court of law for justice in case the plot was not allotted to him. 4. Projecting the plea of their intention to settle in the City, for which they are stated to have purchased the acquired land, for construction of the houses and shops, they rely, primarily on the provisions of Section 17 (2) of the Jammu and Kashmir Development Act, 1970, hereinafter to be referred as the "Act", for short, to seek allotment of a plot. 5. Opposing the petitioners writ petition and denying any assurance by the functionaries of the Authority to the petitioners for allotment of a plot, in lieu of the acquired land, the Authority has denied the entitlement of the petitioners to seek allotment in terms of Section 17 (2) of the Act. Denying the petitioners plea that they had been dealing in the shuttering material, on their plot of land, the Authority has, additionally, questioned the maintainability of the writ petition, on the grounds of delay and laches in approaching the Court, decades after the acquisition of their land. 6. Denying the petitioners plea that they had been dealing in the shuttering material, on their plot of land, the Authority has, additionally, questioned the maintainability of the writ petition, on the grounds of delay and laches in approaching the Court, decades after the acquisition of their land. 6. I have considered the submissions of learned counsel for the parties and the law cited at the Bar by the petitioners learned counsel. 7. In order to determine the issue as to the petitioners entitlement or otherwise, to a plot in the developed Housing Colony, in lieu of the acquisition of their property, regard needs to be had to the provisions of Section 17 (2) of the Act, Section 17 reads thus:- "Section 17: Disposal of land by the Authority (1) Subject to any direction given by the Government under this Act, the Authority may dispose of- (a) any land acquired by the Government and transferred to it without undertaking or carrying out any development thereon; or (b) any such land after undertaking or carrying out such development as it thinks fit; to permanent residents of the State in such manner and subject to such terms and conditions as it considers expedient for securing the development of the area according to plan. (2) The powers of the Authority with respect to the disposal of land under sub-section (1) shall be so exercised as to secure, so far as practicable, that persons who are living or carrying on business or other activities on the land shall, if they desire to obtain accommodation on land belonging to the Authority and are willing to comply with any requirements of the authority as to its development and use, have an opportunity to obtain thereon accommodation suitable to their reasonable requirements on terms and settled with due regard to the price at which any land has been acquired from them: Provided that where the Authority proposes to dispose of by sale any land without any development having been undertaken or carried out thereon, it shall offer the land in the first instance, to the persons from whom it was acquired, if they desire to purchase it subject to such requirements as to its development and use as the authority may think fit to impose. (3) Nothing in this Act shall be construed as enabling the Authority to dispose of land by way of gift, mortgage or charge, but subject as aforesaid, reference in this Act of the disposal of land shall be construed as reference to the disposal thereof in any manner whether by way of sale, exchange or lease or by the creation of any easement right or privilege or otherwise." 8. The powers of the Authority to dispose of the land transferred to it, in terms of Section 17(1) of the Act, after undertaking or carrying out development therein, is governed by the provisions of Section 17 (2) of the Act, which requires the Authority to exercise its power, of course, as far as may be practicable for it so to do, that the persons who have been living or carrying on business or other activities on the land, were provided accommodation on the land belonging to the Authority. The person or persons desirous of getting the land are required to demonstrate their desire to obtain the land and willingness to comply with the requirements which the Authority may prescribe in this behalf. 9. In other words, while floating any Scheme for disposal of the developed land, the Authority is required to provide option to those who have been either living or carrying on business or other activities on the land acquired by the State, for the Authority, for occupation of the land on terms settled with due regard to the price at which the land had been acquired from them. 10. In order to succeed in their petition, seeking allotment of a plot in the developed Colony, on the strength of Section 17 of the Act, the petitioners are required to demonstrate that they were either living or doing any activity in their land before its acquisition for the Authority, and that the Authority had floated any Scheme in terms of Section 17 of the Act entitling them to seek consideration for allotment. 11. Although the petitioners have indicated in paragraph No. 5 of their writ petition that they were using the land for keeping shuttering material, but pursuant to its denial by the Authority, they have not placed any material on the record proving that they were using the land for the purpose indicated in the aforementioned paragraph of the writ petition. 12. Although the petitioners have indicated in paragraph No. 5 of their writ petition that they were using the land for keeping shuttering material, but pursuant to its denial by the Authority, they have not placed any material on the record proving that they were using the land for the purpose indicated in the aforementioned paragraph of the writ petition. 12. Perusal of the Notice dated July 15, 2002 stated to have been served by the petitioners on the Authority too indicates that no such case, as has been projected in paragraph No. 5 of the writ petition, had been so demonstrated in the Notice, and all that may be gathered therefrom, is that the petitioners had desired a residential plot in lieu of the acquisition of their land projecting the plea that they had purchased the acquired land for residential purpose. 13. When considered, in the light of what is contained in the Notice aforementioned, the case projected by the petitioners in paragraph No. 5 of the writ petition, appears to be an afterthought, designed to sustain the writ petition, attracting the provisions of Section 17 of the Act. 14. Perusal of the writ petition as a whole too indicates that the petitioners appear to be reeling under the impression that they were entitled to a plot from the Jammu Development Authority, in lieu of the acquisition of their land, assessment of compensation wherefor, is complained inadequate. 15. The petitioners having failed to place any material on the records proving them to have been either residing or carrying on any business or other activity on the land, acquired for the purposes of the Authority, the provisions of Section 17 (2) of the Act, may not thus have any application. The claim of the petitioners projected as such in the writ petition, relying on Section 17 of the Act, is, thus, found to be misconceived, for, the allotment of land in lieu of the acquisition, for which the compensation stands sanctioned, may be otherwise impermissible. 16. That apart, the petitioners have not satisfactorily explained the huge delay of more than 30 years in approaching the Court after the acquisition of their land. 17. 16. That apart, the petitioners have not satisfactorily explained the huge delay of more than 30 years in approaching the Court after the acquisition of their land. 17. S.B. Kishore v. Union of India and others, reported as AIR 1991 SC, 90 cited by learned counsel for the petitioners, to urge that the plea of delay and laches was not attracted in the case, has no application to the facts of the present case, in that, the delay had been condoned in the peculiar facts and circumstances of the case, finding that the Authority in that case had earlier considered cases similar to that of the petitioner. Thus, found to be without merit, this writ petition is, accordingly, dismissed.