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2015 DIGILAW 193 (JK)

Dharam Singh v. State

2015-04-17

JANAK RAJ KOTWAL

body2015
Judgment : 1. Collector, Land Acquisition (Assistant Commissioner Revenue), Jammu (for short, the Collector) issued Notification No. 06 of 1988 dated 29.08.1988 under section 4(1) of the Jammu and Kashmir Land Acquisition Act, 1990 (for short, the Act) proposing acquisition of a big chunk of land situate at villages, Kartholi, Meen Sarkar and Birpur for a public purpose, namely, development and expansion of Industrial Complex, Bari Brahmana, Jammu. On the recommendation of the Collector, Government issued declaration vide Notification No. 335-RD of 1989 under section 6 of the Act on 21.09.1989. Final award was passed by the Collector on 08.04.1999, whereby 1912 kanals 07 marlas of land has been acquired. The acquired land includes 2 kanals 19 marlas of land belonging to the petitioner bearing khasra No. 478 situate at village, Kartholi. A supplementary award bearing No. LA/ACR/final/2001 dated 19.04.2001 was also passed but it is not stated in the pleadings of the petitioner or the Collector as to whether that has any relevance to the award dated 08.04.1999 qua the land belonging to the petitioner. 2. Petitioner has filed this petition under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir seeking inter alia a writ declaring acquisition proceedings and the awards as non est and nullity in the eyes of law. Petitioner has also sought mandamus commanding respondent No. 4 to restrain respondent Nos. 6 and 7 from encroaching upon and grabbing or interfering in any manner with the aforementioned land belonging to the petitioner. 3. Heard. I have perused the record. 4. Case set up by the petitioner is that ‘entire proceedings which were taken by the relevant time were in fact not notified as per the mandate of law.’ Petitioner or any of his co-sharers, who are in actual possession of the land, were never given any compensation of their land nor possession on spot was taken over either by the indenting department or by the Collector. Petitioner continues in peaceful possession of the said land even after 12 years of the acquisition. The acquisition proceedings had become nullity because of afflux of time by the conduct of respondent No. 3 (Indenting department) in neither taking possession of the said land nor paying any compensation in lieu of the acquired land. 5. Respondent Nos. Petitioner continues in peaceful possession of the said land even after 12 years of the acquisition. The acquisition proceedings had become nullity because of afflux of time by the conduct of respondent No. 3 (Indenting department) in neither taking possession of the said land nor paying any compensation in lieu of the acquired land. 5. Respondent Nos. 1, 2, 4 and 5, who include the Collector, on one hand and respondent Nos. 6 and 7 on the other have opposed the writ petition by filing separate objections. Respondent Nos. 1, 2, 4 and 5 have primarily questioned the maintainability of the writ petition after 15 years of the passing of the impugned award. They have opposed the writ petition further by contending that procedure as prescribed under the Act was complied with in the acquisition proceedings. By the medium of supplementary affidavit filed on behalf of the Collector, it is stated that as per khasra entries made on 14.10.1997 possession of the land was handed over to General Manager, District Industries Centre, Jammu giving effect to the final award. 6. Mr. D. C. Raina, learned senior Advocate, appearing for and on behalf of petitioner submitted that mandatory requirements of acquisition proceedings were not complied with by the Collector inasmuch as neither notification under section 4 of the Act was issued as per requirement of law nor petitioner was heard in terms of section 5-A (1) before issuing declaration under section 6. In regard to the delay in filing this writ petition, Mr. Raina argued that the petitioner all along continues in possession of the land said to have been acquired and no compensation in regard to acquisition has been paid to him. The necessity of filing the writ petition arose only when under the garb the acquisition respondent Nos. 6 and 7 started causing interference with petitioner’s land so the petition cannot be defeated for the reason of delay only. Mr. Raina relied upon (2012) 12 SCC 443 and AIR 2013 SC 856 . 7. Per contra, Mr. H. A. Siddiqui, learned AAG appearing for respondents 1, 2, 4 and 5 assisted by Mr. 6 and 7 started causing interference with petitioner’s land so the petition cannot be defeated for the reason of delay only. Mr. Raina relied upon (2012) 12 SCC 443 and AIR 2013 SC 856 . 7. Per contra, Mr. H. A. Siddiqui, learned AAG appearing for respondents 1, 2, 4 and 5 assisted by Mr. Ajay Abrol, learned counsel for respondent No. 3 submitted that writ petition having been filed in the year 2014, 15 years after passing of the award on 08.04.1999 and taking over of the possession of the acquired land by the indenting department suffers from inordinate delay and laches and is not maintainable in view of the law laid down by the Supreme Court in Municipal Corporation of Greater Bombay v Industrial Development and Investment Company (P) Ltd., (1996) 11 SCC 501 and reiterated in catena of subsequent judgments. Mr. Siddiqui argued further that with the transfer of possession of the acquired land to the indenting department, the land gets vested in the State so acquisition cannot be questioned and award cannot be quashed. On merits, Mr. Siddiqui sought to point out that the acquisition proceedings have been assailed by the petitioner on conjectures and surmises without pinpointing any illegality at any stage of the proceedings. In regard to the compensation, Mr. Siddiqui submitted that the indenting depart had duly deposited the compensation amount in the office of the Collector and the petitioner cannot be heard raising any dispute fifteen years after the award. 8. It is not disputed that the land including the aforementioned land belonging to the writ petitioner was required for a public purpose, namely, development and expansion of the Industrial Complex, Bari Brahmana. The impugned final award was passed by the Collector on 08.04.1999. The writ petition on hand has been filed in January 2014 viz about fifteen years after the passing of the award. 9. Petitioner has sought to explain the fifteen years delay after the award in filing this petition by taking the plea that he all along continued in possession of the land. Petitioner s contention that he all along continued in possession of the land belonging to him or that possession of the land had never been given to the indenting department, however, is without any basis and not supported by any material. Petitioner s contention that he all along continued in possession of the land belonging to him or that possession of the land had never been given to the indenting department, however, is without any basis and not supported by any material. Even the copy of khasra entry for the year 2013, kharif, (annexure A) relied upon by the petitioner would show that the land in question, that is, land comprised in khasra No. 478 measuring 2 kanals 19 marlas is in possession of the Industries Department. Not only that, as per the supplementary affidavit in this regard filed by the Collector under the direction of this Court, possession of the land was delivered by the Collector to the General Manager, District Industries Centre, Jammu in the year 1997 and khasra entry in this regard was made on 14.10.1997. What is stated in the supplementary affidavit is borne out from khasra entry for the year 1997, kharif, annexed to the supplementary affidavit, which shows that possession of land comprised in various khasra numbers including khasra No. 478 was handed over to the General Manager, District Industries Centre, Jammu by way of ‘Nishandehi’ viz demarcation. Khasra entry for the year 1997, kharif read with khasra entry for the year 2013, kharif supports respondents contention that possession of the acquired land was handed over to the indenting department (Industries Department) in the year 1997. 10. Contextually, report of Tehsildar, Bari Brahmana dated 21.11.2014, which has been produced by none else than the petitioner vide CMA No. 295/2015, has important bearing with the question of possession of the land in question. Demarcation of land comprised in khasra Nos. 478 and 479 seems to have been done at the request of the Managing Director, J&K SIDCO. This report clearly shows that the land comprised in khasra No. 478 has been acquired by and is recorded in possession of Industries Department, the possession having been handed over in the year 1997, kharif. The report further shows that 2 marlas of the acquired land comprised in khasra No. 478 has come under the shops/building constructed by Yashpal Singh and Satpal Singh (herein respondent Nos. 6 and 7) and their mother, Presto Devi, 8.5 marlas of land has been amalgamated by said three persons with their land comprised in khasra No. 479 and rest of the land is covered under road and factories of the Industries Department. 11. 6 and 7) and their mother, Presto Devi, 8.5 marlas of land has been amalgamated by said three persons with their land comprised in khasra No. 479 and rest of the land is covered under road and factories of the Industries Department. 11. What clearly emerges thus is that Notification under section 4 in regard to acquisition of the big chunk of land situate at villages, Kartholi, Meen Sarkar and Birpur including 2 kanals 19 marlas of petitioner’s land situate at village, Kartholi was issued in the year 1988. Possession of petitioner’s land among others was delivered by the Collector to the indenting department in year 1997 and award came to be passed 08.04.1999. As per the report of the Tehsildar dated 21.11.2014 (supra) some 10.5 marlas of the acquired land comprised in khasra No. 478 is in possession of respondents 6 and 7 whereas rest of the land is covered under a road and factories of the Industrial Complex. Petitioner has not produced any material in support of his contention of being in possession of the acquired land after the year, 1997. Neither has he said anything against the khasra entries nor has refuted the Tehsildar s report, which as a matter of fact has been produced by the petitioner by way of CMA No. 295/2015. This being so, petitioner cannot be permitted to raise any dispute about delivery of possession of the acquired land to the indenting department to carve out a justification for filing this writ petition after fifteen years of date of award. 12. The question whether High Court should issue writ qua acquisition of land when acquisition is assailed after long gap of time from the date of award and taking over of possession of the acquired land by the indenting department was taken up for consideration by the Supreme Court in Municipal Corporation of Greater Bombay v Industrial Development and Investment Company (P) Ltd., (1996) 11 SCC 501 . Their Lordships, while taking notice that the respondent in that case had approached the High Court after a gap of four years, after surveying earlier judgments of the Supreme Court on the point, has held: “It is thus well settled law that when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the Court should be loath to quash the notifications. The High Court has, no doubt, discretionary powers under Article 226 of the Constitution to quash the notification under Section 4(1) and declaration under Section 6. But it should be exercised taking all relevant factors into pragmatic consideration. When the award was passed and possession was taken, the Court should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226. The fact that no third party rights were created in the case, is hardly a ground for interference. The Division Bench of High Court was not right in interfering with the discretion exercised by the learned single Judge dismissing the writ petition on the ground of laches.” Similar view has been taken by the Supreme Court in M/s Swaika Properties Pvt. Ltd. v. State of Rajasthan, AIR 2008 S. C. 1494. 13. Anil Kumar Gupta’s case, (2012) 12 SCC 446 (supra) relied upon by learned petitioner’s counsel would not render any beneficial support to petitioner’s case on the question of delay and laches in filing this writ petition as it does not come to rescue of a person guilty of laches in approaching the High Court . Supreme Court rather has reiterated with approval that the framers of Constitution have not prescribed any period within which a petition can be filed under section 226 of the Constitution of India but the superior courts have evolved several rules of self- imposed restraint which are required to be kept in mind by the High Courts while exercising powers under Article 226. One of these rules is that High Court will not come to the aid of a person who approaches the Court with delay and no explanation is offered for the same. Not only that, Supreme Court has amplified the law in regard to the scope of assailing of the acquisition proceedings at various stages by a person feeling aggrieved by acquisition of his land. I may gainfully quote para 15 of the judgment which reads: “15 The issue needs to be examined from another angle. A person who is deprived of his land can challenge the acquisition proceedings at various stages. I may gainfully quote para 15 of the judgment which reads: “15 The issue needs to be examined from another angle. A person who is deprived of his land can challenge the acquisition proceedings at various stages. He can question the notification issued under Section 4(1) on the ground of violation of the mandate contained therein like publication of the notification in the Official Gazette and/or two newspapers including the one the substance of the notification to be given at convenient places in the locality. He can challenge the declaration issued under Section 6(1) on the ground of non-compliance with Sections 5-A(1) and/or (2) or violation of the first proviso (ii) to Section 6(1). In a given case, the landowner can also Section 11 on the ground that he had not been heard or that the acquisition proceedings are a nullity. He can also challenge the award if it is not made within the period prescribed under Section 11-A. The vesting of land in the Government can be challenged on the ground that the possession had not been taken in accordance with the prescribed procedure. The invoking of the urgency clause contained in Section 17 can be questioned on the ground that there was no real urgency. There may be many more grounds on which the landowner can challenge the acquisition proceedings. Insofar as the appellant is concerned, he had challenged the acquisition proceedings immediately after passing of the award and pleaded that the declaration issued under Section 6(1) was liable to be declared a nullity because of violation of the time-limit prescribed in the first proviso (ii). This being the position, it is not possible to approve the view taken by the Division Bench of the High Court that the writ petition was belated.” 14. Patasi Devi’s case, AIR 2013 SC 856 (supra) too is of little help to the petitioner s case. In that case Supreme Court took a view that petitioner’s challenge to the acquisition after passing of award should not have been summarily dismissed when no evidence was adduced showing that possession of land has been taken over by indenting department and land has been vested in the State. In that case Supreme Court took a view that petitioner’s challenge to the acquisition after passing of award should not have been summarily dismissed when no evidence was adduced showing that possession of land has been taken over by indenting department and land has been vested in the State. Contrary to the factual position in that case, in the case on hand khasra entries would show that possession has been handed over to the indenting department in the year, 1997 and petitioner has not produced any material to show that he was in possession after 1997. 15. It is noticed that petitioner never challenged the acquisition proceedings at any stage earlier to filing of this petition at a belated stage after fifteen years of passing of the final award. Even in this petition no specific objection to any aspect of the acquisition proceedings has been raised. It is not petitioners say that Notification under section 4 of the Act was not published as per requirement of that section or that he was not aware of that notification or could not file objections against acquisition. It is not his say also that objections filed by him were not accorded consideration to or he was not heard by the Collector. As per the Khasra entries, indenting department is in possession of the acquired land since 1997 and no material has been produced by the petitioner that he is in continuous possession or had ever been in possession of the said land during this period. 16. Petitioner rather seems to have got irked by respondent Nos. 6 and 7 continuing in possession of the land comprised in khasra No. 479 which too had been acquired along with petitioner s land. Petitioner s grievance also seems to be against respondent Nos. 6 and 7, who, as per the petitioner and report of the Tehsildar (supra), have encroached upon the land comprised in khasra No. 478, which before its acquisition was owned by the petitioner. Petitioner, thus, seems to have staked claim to the entire land measuring 2 kanals 19 marlas by challenging the acquisition having taken place 15 years back by the medium of this writ petition. Petitioner seems to have made an attempt to question the acquisition on the analogy that the same had been earlier questioned by respondent Nos. Petitioner, thus, seems to have staked claim to the entire land measuring 2 kanals 19 marlas by challenging the acquisition having taken place 15 years back by the medium of this writ petition. Petitioner seems to have made an attempt to question the acquisition on the analogy that the same had been earlier questioned by respondent Nos. 6 and 7 by the medium of OWP No. 682/2000 followed by review application No. 35/2001 and AP(OWP) No. 206. 17. There, however, is no possibility of petitioner claiming parity with respondent Nos. 6 and 7 because it is seen that Puran Chand, the father of respondent Nos. 6 and 7 and some others had approached this Court by the medium of OWP No. 682/2000 shortly after the award dated 08.04.1999 on the ground that compensation for some structures- houses coming under acquisition was not assessed and they were still in possession of the acquired land and had objected assessment of compensation in regard to those houses and structures on the basis of expiry of the limitation period after issuance of Notification under section 6 of the Act. It was in these peculiar circumstances that this Court had granted relief in their favour and may be the said respondents are still continuing in possession of that land. 18. Petitioner’s attempt to explain the delay and justify his filing this petition after fifteen years of award on the ground that he all along continued in possession of the land in question has no substance for the reason stated above. 19. I would thus hold that on the basis of the material relied upon by the petitioner and that available on the file of the Collector, it cannot be said that the petitioner continued in physical possession of the acquired land even after its acquisition and passing of the final award far back in the year 1999. On the other hand, record would show that the possession of the land was handed over to the indenting department in the year 1997 and the land is in possession of the indenting department since then. It appears some of this land, as per the report of the Tehsildar (supra), has been encroached upon by respondent Nos. On the other hand, record would show that the possession of the land was handed over to the indenting department in the year 1997 and the land is in possession of the indenting department since then. It appears some of this land, as per the report of the Tehsildar (supra), has been encroached upon by respondent Nos. 6 and 7 but the fact of the matter remains that land has vested in the State fifteen years prior to filing of this writ petition pursuant to a regular acquisition proceedings and no ground for questioning the acquisition at such a belated stage is made out. 20. Viewed thus, I would hold further that this writ petition suffers from unwarranted delay and the petitioner is guilty of laches inasmuch as no case for throwing challenge to acquisition proceeding and final award after fifteen years is made out. 21. For aforementioned, this writ petition is dismissed firstly for delay and laches and secondly being without any merit. 22. Disposed of.