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2012 DIGILAW 692 (JK)

Ghulam Mohammad Kuchai & Ors. v. State of J&K & Ors.

2012-10-31

MUZAFFAR HUSSAIN ATTAR

body2012
1. Following relief is sought in this writ petition: Certiorari/Mandamus declaring the action of the Respondent Collector Land Acquisition/Assistant Commissioner (R) Pulwama regarding issuance of direction to the authorities of "The J&K Bank Ltd. Branch Lethpora Distt. Pulwama not to allow the petitioners to withdraw the amount as being illegal, unconstitutional and without any authority and the respondents including the respondent Branch Manager, the J&K Bank Ltd. Branch Lethpora, Distt., Pulwama be commanded not to cause any hurdles/interference into the withdrawal of the amount credited in their Account Nos. 4331 and 4244 SB on the basis of award amount as per the final award and apportionment statement enclosed with the award and the petitioners be given the amount forthwith alongwith interest. 2. The reply affidavit has been filed by the official respondents as also by the impleaded parties. 3. The controversy projected into this writ petition owes its genesis to the acquisition of the land for which final award has been passed on 14.12.2011. The petitioners during the pendency of the writ petition filed supplementary affidavit, wherein, they have brought to the notice of the Court communication of the Collector Land Acquisition, Pulwama addressed to the Treasury Officer, Pulwama dated 23.12.2011 in which the said authority has been asked to stop the payment of land compensation which was released in favour of the petitioners. Similarly, another communication has been send to the respondent-Bank not to disburse the amount in favour of the petitioners. The stand taken by the official respondents in their reply affidavit in para 5 to 8 is taken note of: 5-8/- In reply to paras 5 to 8 of the writ petition, it is submitted that as per the apportionment statement, 66 kanals-01 marla of land belonging to the petitioners was acquired for setting up of the "Group Centre at Lethpora." Accordingly, 80% of compensation was paid to the petitioners. Thereafter, an amount of 20% was released in their favour and credited to their accounts at J&K Bank Branch Lethpora. However, in the meantime, an application was moved by one Mst. Misra Begum Wd/o Khair Mohamad and others whereunder they held that the record prepared during the acquisition proceedings by the revenue field agency was in contradiction with the spot position and because of this the applicants were put to wrongful loss. However, in the meantime, an application was moved by one Mst. Misra Begum Wd/o Khair Mohamad and others whereunder they held that the record prepared during the acquisition proceedings by the revenue field agency was in contradiction with the spot position and because of this the applicants were put to wrongful loss. While taking cognizance of the application, a report was sought from Tehsildar Pampore, submitted vide No. TP-OQ/779 dated 07.03.2012, which reveals that as per the revised records prepared after the settlement, the petitioners have ownership rights over 75 kanals-18 marlas of land out of which, only 53 kanals-04 = marlas were acquired. Consequently, the officials of J&K Bank Branch Lethpora were asked to stop the release of payment in favour of the petitioners and their accounts were freezed. 4. It is pertinent to mention here that dispute had arisen between the parties with respect to the title/apportionment, thereby in order to settle the same and determine the rights of the parties involved, a reference was made to District Judge, Pulwama u/s 18 of J&K Land Acquisition Act vide Office No. 01/DCP/HA/GC dated 05.04.2012 and is presently under adjudication there. 5. Similarly stand taken by the impleaded parties in para 3 of the reply affidavit is taken note of: "3. That the controversy dates back to the year 2005 when the land of the petitioners and the answering respondents was sought to be acquired by the State Government. It is submitted that the State respondent had wrongly accessed and paid the compensation of the land belonging to the answering respondents to the petitioners herein. It is submitted that the said action of the respondents was challenged by the answering respondents by virtue of a writ petition bearing OWP No. 445/2008 titled Misra Begum v. State & Ors. While disposing of the writ petition the Hon'ble Court by virtue of its order dated 26/11/2009 had held that the matter being factual in nature needed to be referred to a civil court for adjudication and in this regard the Counsel for the respondents had made a submission that the matter shall be referred to the concerned District Judge. It may be pertinent to mention here that the petitioner No:1 was a party to the above referred writ petition and was all through contesting the said case. It may be pertinent to mention here that the petitioner No:1 was a party to the above referred writ petition and was all through contesting the said case. In this context, it was the duty of the petitioner No:1 to inform the Hon'ble Court about the earlier writ petition, but has deliberately concealed the fact only with the object of deceiving this Hon'ble Court. This act of the petitioner No: 1 needs to be taken seriously and the petitioner needs to be punished for this act of his. 6. Learned counsel for the petitioners submitted that initially tentative award was published and 80% of compensation amount was released in favour of the petitioners. Learned counsel submitted that after final award was published the remaining 20% amount was credited into the account of the petitioners in J&K Bank Branch Lethpora but because of the impugned communication the petitioners have been prohibited from withdrawing the said amount. Learned counsel argued at length and made reference to the tentative award, final award, agreement between the petitioners and some of the impleaded parties and also to interim orders passed by the Court on 2nd May, 2012. Learned counsel submitted that the final award does confer rights on the petitioners to receive the amount in full and the Collector after publishing the tentative award and the final award cannot stop the payment of compensation to the petitioners. Learned counsel accordingly prayed for allowing the writ petition. 7. Learned counsel for the respondents submitted that the petitioners are not entitled to receive the compensation amount as determined by the Collector. Learned counsel further submitted that on further verification it was found that the petitioners are not entitled to receive the compensation which is reflected in the final award. Learned counsel also submitted that the Collector has already made reference under Section 18/31 of Land Acquisition Act to the civil court and issue of apportionment of the compensation is to be settled by the said court. Learned counsel also submitted that the impleaded parties had filed OWP No. 445/2008 titled Misra Begum v. State and Ors which was disposed of by the Court vide judgment dated 26.11.2009. Learned counsel submitted that in peculiar facts of this case, the writ petition would merit to be dismissed. 8. Learned counsel also submitted that the impleaded parties had filed OWP No. 445/2008 titled Misra Begum v. State and Ors which was disposed of by the Court vide judgment dated 26.11.2009. Learned counsel submitted that in peculiar facts of this case, the writ petition would merit to be dismissed. 8. Learned counsel for the Bank-respondent No. 4 submitted that no writ can be issued against the Bank in view of the law laid down by the Full Bench of this Court in case titled Firdous Ah. Tanki v. State and Ors. 9. In the earlier round of litigation in OWP No. 445/2008, petitioner No. 1 was party respondent. The Court while laying the factual matrix in the judgment came to the conclusion that the question of fact being involved, it would require to be settled by seeking reference under Section 31 of the Land Acquisition Act. In that writ petition the impleaded parties had staked their claim to part of compensation on the ground that the compensation which has been determined and was payable in terms of award to the petitioners herein, was wrongly determined and ordered to be paid to the petitioners herein, as the writ petitioners in OWP No. 445/2008 were owners and in possession of the part of the acquired land. It is in this back drop that the Court while making observations as afore stated dismissed the writ petition. 10. Two aspects are of considerable importance in this case, one, that the compensation has been determined in respect of 66 kanals and 01 marlas which was to be paid to the petitioners. 80% of compensation has already been paid to the petitioners. On re-verification it was found that as per revised records prepared after the settlement, the petitioners have rights of ownership on 75 kanals and 18 marlas out of which only 53 kanals and 04-1/2 marlas were acquired. The claim of the petitioners for seeking compensation in respect of 66 kanals and 01 marlas is thus under the cloud. 11. On re-verification it was found that as per revised records prepared after the settlement, the petitioners have rights of ownership on 75 kanals and 18 marlas out of which only 53 kanals and 04-1/2 marlas were acquired. The claim of the petitioners for seeking compensation in respect of 66 kanals and 01 marlas is thus under the cloud. 11. Similarly the claim of the impleaded parties that they are entitled to compensation for the reason that some of the land for which the Collector has awarded compensation to the petitioners, was in their possession as owners and, in order to settle the issue, in view of the observations made in the earlier round of litigation, the Collector has made reference to the civil court under Section 31 of the Land Acquisition Act. The issue is to be determined by the civil court in accordance with the mandate contained in Section 31 of the said Act. 12. The issue that it is only 53 kanals and 4-1/2 marlas and not 66 kanals and 01 marla which has been acquired, is a matter of serious concern. The public money is involved which cannot be allowed to be squandered. If the mistake is committed by the revenue authorities that has to be corrected and rectified of course after affording opportunity of hearing to the beneficiary. Passing of the final award in the peculiar facts and circumstances of this case would not debar the concerned Collector to have fresh look on the record and arrive at the proper conclusion as to whether it is 66 kanals 01 marlas or 53 kanals and 04-1/2 marlas which have been acquired from the petitioners. In such circumstances, the public money is to be saved and it cannot be allowed to be given to the petitioners at this stage. The Collector has taken steps for saving the public money. Such an act of the Collector has not infringed any of the legal rights of the petitioners. Petitioners are entitled to receive only that amount which is due to them. 13. The contention of the learned counsel for the petitioners that interim order has been passed whereunder petitioners were permitted to receive the amount subject to furnishing undertaking which undertaking as per statement of learned counsel for the petitioners has been furnished to the Registry of the Court, will not change the final course of this writ petition. 13. The contention of the learned counsel for the petitioners that interim order has been passed whereunder petitioners were permitted to receive the amount subject to furnishing undertaking which undertaking as per statement of learned counsel for the petitioners has been furnished to the Registry of the Court, will not change the final course of this writ petition. It is settled law that all interim orders merge into the final judgment of the Court. 14. For the above stated reasons this petition is held to be meritless and is dismissed alongwith all connected CMPs.