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2016 DIGILAW 512 (JK)

National Highway 1-A v. State of J&K

2016-10-06

ALOK ARADHE

body2016
JUDGMENT : 1. In this bunch of writ petitions, the petitioners have assailed the validity of the proceedings initiated under the provisions of the State Land Acquisition Act, Samvat, 1990 (hereinafter referred to as the Act). Since common questions of law and facts arise for consideration in this bunch of writ petitions, they were heard analogously and are being decided by this common order. In order to appreciate the petitioners' grievance, few facts need mention, which are stated infra. 2. The petitioner No. 1 in OWP No. 477/2010 are the persons, who are aggrieved by the action of the respondents in seeking to acquire their lands, whereas petitioner Nos. 2 to 13 are the owners of the lands situated in different villages. The petitioners in three remaining petitions are also the aggrieved persons, whose lands are being acquired for the construction of four lanes on NH 1-A from the village, Dhalwas to village Thethar in District Ramban. The petitioners seek quashment of proceedings under the Act on the ground that same has lapsed as awards have not been passed within a period of two years from date of notification under section 6(1) of the Act. The petitioners also seek a direction not to dispossess the petitioners from their properties and to make payment of compensation to them in accordance with law. 3. Learned counsel for the petitioners submitted that the except two villages, namely, Neera and Krawah, awards have not been passed in respect of remaining 10 villages within a period of two years from the date of issuance of the notification under section 4(1) of the Act, therefore, proceedings under the Act have lapsed under Section 11-B of the Act. Attention of this Court has been invited to paragraph 16 of the objections filed on behalf of the respondents 1 to 5 as well as paragraph 8 of the counter affidavit filed by the respondent No. 6 and it has been pointed out that the respondents themselves have admitted that the possession of the land belonging to the petitioners have not been taken over by the intending department i.e. NH-AQ. Therefore, proceedings initiated under the Act are liable to be quashed. It is argued that the respondents may initiate the proceedings under the Act afresh and re-assess the compensation payable to the petitioners. 4. Therefore, proceedings initiated under the Act are liable to be quashed. It is argued that the respondents may initiate the proceedings under the Act afresh and re-assess the compensation payable to the petitioners. 4. It is contended that the depriving the petitioners from their immovable property amounts to violation of Article 21 of the Constitution of India and even if some of the petitioners may have been paid 80% of the amount of compensation, the same does not attach any sanctity to the proceedings under the Act. It is also submitted that the action of the respondents in invoking the provisions of the Section 17 of the Act in the fact situation of the case is arbitrary as the respondents till today have failed to take possession of the lands of the petitioners. Therefore, by virtue of the mandate contained in Section 11-B of the Act, the proceedings under the Act have lapsed. In support of the aforesaid submissions, learned counsel for the petitioners has placed reliance on the decisions of the Supreme Court in the case of Bhimandas Ambwani (D) Thr. Lrs. Vs. Delhi Power Company ltd. 2013 (14) SCC 195 , in the case of M/s Soorajmull Nagamull v. State of Bihar and ors, 2015 (6) Supreme 258 , in the case of Uddar Gagan Properies ltd. Vs. Sant Singh and ors. 2016 (4) Supreme 73 , in the case of Delhi Development Authority vs. Reena Suri and ors. 2016 (3) Suprme 295, in the case of Greater Noida Development Authority vs. Devendra Kumar and ors. 2011 (12) SCC 375 and in the case of Singareni Collieries Co. ltd. vs. Vemuganti Ramakrishan Rao and other, 2013 (8) SCC 789 . 5. On the other hand, learned Advocate General for the respondents 1 to 5 submitted that in the proceedings under the Act, provisions of section 17 of the Act have been invoked and there are no pleadings in the writ petition that the provisions of Section 17 of the Act could not be invoked in the facts of the case. It is further submitted that the provisions of Section 11-B of the Act have no application, once provisions of Section 17 of the Act have been invoked. The proceedings under the Act survive notwithstanding the fact that awards have not been passed within a period of two years. It is further submitted that the provisions of Section 11-B of the Act have no application, once provisions of Section 17 of the Act have been invoked. The proceedings under the Act survive notwithstanding the fact that awards have not been passed within a period of two years. It is further submitted that the interim order was passed on 03.05.2010, by which Land Acquisition Officer was restrained from passing the awards. Therefore, period during which interim order has remained in operation is liable to be excluded. It is contended that in respect of the land involved in OWP No. 151/2016 and OWP No. 533/2016, possession has already been taken on 20.09.2012 and 20.09.2014 respectively and there is no rebuttal in this regard on behalf of the petitioners. 6. It is argued that the petitioners have been paid 80% of the compensation in the year, 2013 and if the proceedings are quashed, the same would tantamount to undue enrichment. It is urged that the petitioners at the most are entitled to payment of interest on the amount of compensation under Section 35 of the Act on account of delay in conclusion of the proceedings under the Act. Lastly, it is urged that once the award has been passed only remedy which is available to the petitioners is to invoke section 18 of the Act. In support of the aforesaid submissions, reliance has been placed on the decisions in cases of Satendra Prasad Jain and Ors vs. State of U.P and others, 1993 (4) SCC 369 , in the case of Awadh Bihari Yadav and others vs. State of Bihar and others, 1995 (6) SCC 31 , in the case of Smt. Ailamma (Dead) and ors. vs. Poornaprajna, AIR 2006 SC 1132 , in the case of Banda Development Authority, Banda vs. Moti Lal Agarwal and others, 2011 (5) SCC 394 , in the case of M/s Delhi Airtech Services Pvt. Ltd. vs. State of UP, AIR 2012 SC 573 , in the case of Laxmi Devi vs. State of Bihar and others, 2015(10) SCC 241 and in the case of Bashir Ahmed Paul and ors. v. State of J&K and ors. 2005 (1) JKJ 68 . 7. Learned counsel for the respondent No. 6 while referring to the decision of the Supreme Court in case of Ramniklal N. Bhutta and anr. v. State of J&K and ors. 2005 (1) JKJ 68 . 7. Learned counsel for the respondent No. 6 while referring to the decision of the Supreme Court in case of Ramniklal N. Bhutta and anr. vs. State of Maharashtra and others, (1997) 1 SCC 134 has submitted that the relief can be moulded in such a way, that the project in question does not suffer. 8. I have considered the respective submissions made at bar and have perused the record. The State has the power of eminent domain, however, the aforesaid power can be exercised subject to constitutional rights of a person to hold the property. The acquisition of land of a person is a serious matter as it deprives the land owner not only of his property but means of livelihood as well as social status. The Supreme Court while taking note of Section 11-A of the Land Acquisition Act, 1894, in the case of Madhao vs the State of Maharashtra (2007) 7 SCC 555 , R. Kolandaivelu and ors. vs. Govt. of T.N and another (2010) 2 SCC 97 and Singareni Collieries Co. ltd. vs. Vemuganti Ramakrishan Rao and other, 2013 (8) SCC 789 has held that if the Award is not passed within a period of two years, the proceeding under the Act would lapse. It has been held by the Supreme Court that mere passing of an award would not vest the land with the State Government unless possession is taken (See Delhi Development Authority vs. Reena Suri and ors. 2016 (3) Supreme 295 ). It is equally well settled legal proposition that once transaction in question is found to be vitiated, there cannot be any estoppel on the ground that land owners have received the compensation and relief cannot be confined only to those land owners, who have not received the compensation (See Greater Noida Development Authority vs. Devendra Kumar and ors. 2011 (12) SCC 375 and Uddan Gagan Properties ltd. vs. Sant Singh and ors. (2016) 4 Supreme 73 . 9. At this stage, I deem it appropriate to take note of the relevant provisions of the Act as the proceedings for acquisition of land have been initiated under the Act. Section 4 of the Act deals with the publication of preliminary notification and powers of officers thereupon. Section 6 of the Act provides for declaration that land is required for public purpose. Section 4 of the Act deals with the publication of preliminary notification and powers of officers thereupon. Section 6 of the Act provides for declaration that land is required for public purpose. Section 11 of the Act mandates the Collector to conduct enquiry and to pass an award. Section 11-B was inserted in the statute by way of amendment Act No. IV of 1997. The object of introducing the aforesaid provision is stated in the statement of objects and reasons, which reads as: "Under the existing law, no specific period has been fixed for making an award by the Collector after declaration under section 6 & 7 of the State Land Acquisition Act, Samvat 1990 is issued whereby intention of the Government is made know to the public that a particular piece of land is required for public purpose. As a result the persons interested in land have to wait for compensation for a long period and to accept rates as are prevalent on the date on which such declaration is made. In such a case the person interested in land are forced to approach to the Courts for enhancement of rates. It is therefore, intended to minimize chances of litigation by providing a time frame about validity of a declaration. The proceedings completed within a period of two years shall lapse, if the award is not made and the Collector shall be required to start proceedings afresh.” 10. Section 11-B of the Act as well Section 17 of the Act, which are relevant for adjudication the controversy involved in these writ petitions are reproduced below for facility of reference: "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 the 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, 1997, the award shall be made within a period of two years from such commencement. Provided that in case where the said declaration has been published before the commencement of the State Land Acquisition (Amendment) Act, 1997, the award shall be 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 be taken in pursuance of the said declaration is stayed by an order of a Court, shall be excluded.” “17. Special power in case of urgency.- In case of urgency, whenever the Government so directs, the Collector, though no such award has been made, may, on the expiration of [fifteen days] from the publication of the notice mentioned in Section 9, sub-section 9(1), take possession of any land needed for public purposes. Such land shall thereupon vest absolutely in the Government, free from all encumbrances: Provided that the Collector shall not take possession of any building or part of a building under this sub-section, without giving to the occupier thereof at least 48 hours' notice of its intention to do so or such longer notice as may be reasonable sufficient, to enable such occupier to remove his moveable property from such building without unnecessary inconvenience; and Provided in every case under this section the Collector shall at the time of taking possession offer to the persons interested compensation for the standing crop and tree (if any) on such land and for any other damage sustained by them caused by such dispossession and not excepted in section 24 and in case such offer is not accepted, the value of such crop and trees and the amount of such other damage shall be allowed for in awarding compensation for the land under the provisions herein contained: Provided also that in case of any land to which in the opinion of the Government, the provisions of sub-section (1) are applicable, the Government may direct that the provisions of section 5-A shall not apply, and if it does so direct, a declaration may be made under section 6 in respect of the land at any time after the publication of the notification under section 4 sub section (1)" 11. From the perusal of Section 11-B of the Act, it is evident that the Collector has to make award under Section 11 of the Act 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. The Explanation provides that in computing period of two years, any action or proceeding required to be taken in pursuance of the said declaration is stayed, shall be excluded. Section 17 of the Act empowers the Government to take possession of the land even when the award has not been made except the period of 15 days from the publication of notice mentioned in Section 9 (1). The Collector at the time of taking possession of the land has to offer to the person interested compensation for the standing crops and trees, if any, on such land and for any other damage sustained by them caused by such dispossession and not accepted in Section 24. 12. The particulars of the proceedings initiated under the provisions of the Act for acquisition of the land and the properties belonging to the petitioners, which are subject matter of challenge in this bunch of writ petitions, are reproduced in a tabular form for facility of reference: In OWP No. 477/2010 the particulars of the proceedings under challenge under the Act are as follows: S. No. Village Area Kanal Marlas Date of Notification u/s 4(1) Date of notifications u/s 6 & 7 Date of notification u/s 9 & 9-A Remarks 1. Dhalwas 211 24.06.2006 25.07.2007 8.8.07 2. Sawni 12 04 15.05.2006 25.07.2007 3. Kenthi 78 00 11.11.2006 25.7.2007 08.08.07 4. Neera 169 1½ 22.09.2006 25.7.2007 Final award passed vide No. 32-34/ACQ/NH-1A dated 6.4.2009 5. Kunfer 163 09 20.06.2006 1.08.2007 6. Chanderkot 184 19 19.09.2006 27.7.2006 7. Ramban 309 14 4.4.2007 23.8.2007 8. Seri 271 09 28.4.2007 14.8.2007 3.9.07 9. Maroog 129 19 28.4.2007 25.7.2007 08.08.07 10. Gund Adalkot 82 16 17.1.2008 6.6.2008 27.12.08 Notification under section 17 issued by the Govt. vide No. Rev(LJ/202/2008 dt. 4.7.2008` 11. Krawah 21 06 19.7.2007 6.6.2008 27.10.08 Notification under section 17 issued by the Govt. vide REV (LaJ/204/2008 dt. 4.7.2008, final award issued vide No. 1874-76/ACQ/NH-AL dt. 9.2.2010 12. Gund Tethar 153 14 17.1.2008 6.6.2008 27.8.08 Notification under section 17 issued by the Govt. vide Rev. (LAJ/203/09 dt. vide No. Rev(LJ/202/2008 dt. 4.7.2008` 11. Krawah 21 06 19.7.2007 6.6.2008 27.10.08 Notification under section 17 issued by the Govt. vide REV (LaJ/204/2008 dt. 4.7.2008, final award issued vide No. 1874-76/ACQ/NH-AL dt. 9.2.2010 12. Gund Tethar 153 14 17.1.2008 6.6.2008 27.8.08 Notification under section 17 issued by the Govt. vide Rev. (LAJ/203/09 dt. 4.7.2008 In OWP No. 533/2016, the particulars of the proceedings under challenge under the Act are as follows: S. No. Village Area Kanal Marlas Date of Notification u/s 4(1) Date of notifications u/s 6 & 7 Date of notification u/s 9 & 9-A Remarks 1 Asher 297 8½ 2.6.2008 6.7.2011 9.1.2010 Tentative award bearing endrs. No. 230/ACQ/NH-A1 dated 23.8.2011 2 Asher 45 19 15.1.2013 22.4.2013 24.6.2013 Tentative award bearing No. 267/ACQ/NH-A1 dated 12.09.2013 In OWP No. 151/2016, the particulars of the proceeding under challenge under the Act are as follows: S. No. Village Area Kanal Marlas Date of Notification u/s 4(1) Date of notifications u/s 6 & 7 Date of notification u/s 9 & 9-A Remarks 1. Chamalwas 390 5 7.12.2007 27.10.2011 7.12.2011 Tentative award bearing endrs. No. 507/Acq/NHA1 dated 26.8.2012 In OWP No. 1301/2016, the particulars of the proceeding under the Act under challenge are as follows: S. No. Village Area Kanal Marlas Date of Notification u/s 4(1) Date of notifications u/s 6 & 7 Date of notification u/s 9 & 9-A Remarks 1. Kundi 46 7½ 19.09.2006 25.07.2007 8.8.2007 Award not passed. 13. From the perusal of the aforesaid charts, it is evident that the provisions of Section 17 of the Act, were invoked in respect of the lands in three villages, namely, Gund Adalkot, Krawah and Kund Tethar, and final awards have been passed in respect of the land situated in village Neera and village Krawah on 06.04.2009 and 09.02.2010 respectively. It is not in dispute that the aforesaid awards in respect of two villages, Neera and Krawah have been passed within a period of two years from the date of issuance of notification under Section 6 of the Act. 14. It is pertinent to mention that in OWP No. 477/2010 and in OWP No. 1301/2013, powers under Section 17 of the Act have not been invoked by the State Government. Admittedly an interim order was passed in OWP No. 477/2010 on 03.05.2010 that Collector shall proceed with proceedings under the Act, however, he shall not pass the final awards. 14. It is pertinent to mention that in OWP No. 477/2010 and in OWP No. 1301/2013, powers under Section 17 of the Act have not been invoked by the State Government. Admittedly an interim order was passed in OWP No. 477/2010 on 03.05.2010 that Collector shall proceed with proceedings under the Act, however, he shall not pass the final awards. The respondents are entitled for exclusion of time for the purpose of concluding proceeding under the Act in view of the explanation to Section 11-B of the Act. However, it is pertinent to note that interim order was passed by a Bench of this Court on 03.05.2010 after expiry of two years from the date of notifications under section 6 of the Act, namely, 25.07.2007, 27.07.2006, 01.08.2007, 14.08.2007 and 23.08.2007 respectively. However, notifications under section 6 of the Act have been issued on 06.06.2008 in respect of two villages, namely, Gund Adalkot and Gund Tethar and before expiry of period of two years in respect of aforesaid villages interim order was passed on 03.05.2010. Therefore, the period during which stay has remained in operation in respect of aforesaid two villages deserves to be excluded. 15. Similarly, in OWP No. 1301/2016, notification under section 4(1) was issued on 19.09.2006 by which objections were invited within 15 days. Thereafter, notification under Sections 6 & 7 was issued on 25.7.2007 and notification under Sections 9 and 9-A was issued on 08.08.2007. There is no material on record to show that the award in respect of the land involved in OWP No. 1301/2016 has been passed. Similarly, in OWP No. 151/2016, the notification under Section 4(1) of the Act was issued on 07.12.2007 by which objections were invited. Thereafter, notifications under Sections 6 & 7 of the Act were issued on 27.10.2011, which clearly states that no objections were received pursuant to the notification issued under section 4(1) of the Act. However, State Government invoked powers under Section 17 of the Act. Thereafter, notice under Sections 9 & 9-A was issued on 7.12.2011 and an award has been passed on 26.03.2012. Thereafter, a Bench of this Court granted ad interim order on 15.02.2016 directing maintenance of the status quo. 16. In OWP No. 533/2016, notification under Section 4(1) of the Act was issued on 02.06.2008 by which objections were invited. Thereafter, notice under Sections 9 & 9-A was issued on 7.12.2011 and an award has been passed on 26.03.2012. Thereafter, a Bench of this Court granted ad interim order on 15.02.2016 directing maintenance of the status quo. 16. In OWP No. 533/2016, notification under Section 4(1) of the Act was issued on 02.06.2008 by which objections were invited. However, notification under section 6 & 7 of the Act clearly states that no objections were received. However, powers under Section 17 of the Act were invoked. Thereafter, notice under section 9 & 9-A of the Act was issued on 09.01.2010 and an award was passed on 23.03.2011. Thereafter, a Bench of this Court on 12.04.2016 granted an order of status quo. Similarly another notification under section 4(1) was issued on 15.01.2013 by which objections were invited and on 22.04.2013, notification under Section 6 was issued by which powers under Section 17 of the Act were invoked. It is pertinent to mention here that notification under Section 6 clearly states that no objections were received. Thereafter, notice under sections 9 & 9-A was issued on 24.6.2013 and an award was passed on 12.09.2013. 17. Thus, it is evident that in respect of the land involved in two writ petitions, namely, OWP No. 477/2010 and OWP No. 1301/2016, powers under Section 17 were never invoked by the State Government and award was not passed within a period of two years from the date of declaration under Sections of the Act except two villages, namely, Neera and Krawah. Therefore, proceedings under the Act in respect of land involved in the aforesaid writ petitions have lapsed by virtue of Section 11-B of the Act except in so far it pertains to village Neera and Krawah. In respect of villages, namely, Gund Akalkot and Gund Tethar since declarations under section 6 of the Act was issued on 06.06.2008 and interim order was granted by a Bench of this Court on 03.05.2010, therefore, the period within which stay has remained in operation is to be deserves excluded. In respect of the land involved in OWP No. 151/2016 and OWP No. 533/2016 the powers under Section 17 of the Act were invoked, yet the fact remains that Award has been passed within a period of two years from the date of declaration under section 6 of the Act. 18. In respect of the land involved in OWP No. 151/2016 and OWP No. 533/2016 the powers under Section 17 of the Act were invoked, yet the fact remains that Award has been passed within a period of two years from the date of declaration under section 6 of the Act. 18. The fact that respondents have not taken possession of the land from the petitioners, which is evident from para 16 of the objections filed on behalf of respondents 1 to 5 as well as para 8 of the counter affidavit filed on behalf of respondent No. 6, has no bearing so as for issue of applicability of section 11-B of the Act is concerned. Therefore, contention of the petitioners that proceedings have lapsed since possession of lands has not been taken cannot be accepted. The State Government shall be entitled to take possession of lands involved in OWP No. 151/2016 and OWP No. 533/2016 under section 16 of the Act. 19. In view of the preceding analysis, the proceedings in respect of the lands involved in OWP No. 533/2016 and OWP No. 151/2016 are held to be valid as the awards in the aforesaid cases have been filed within a period of two years from date of declaration under section 6 of the Act. However, the proceedings in respect of lands involved in OWP No. 477/2010 and 1301/2016 have lapsed as awards have not been passed within a period of two years from the date of declaration under section 6 of the Act, except the lands situate in village Neera and Krawah in respect of which awards have been passed within two years from the date of notification under section 6 of the Act. In respect of lands of villages, namely, Gund Akalkot and Gund Tethar since declarations under section 6 of the Act were issued on 06.06.2008 and interim order was granted by a Bench of this Court on 03.05.2010, therefore, the period within which stay has remained in operation is to be deserves excluded. The respondents are at liberty to proceed with the land acquisition proceedings in respect of aforesaid villages in accordance with law. 20. The respondents are at liberty to proceed with the land acquisition proceedings in respect of aforesaid villages in accordance with law. 20. In view of law laid down by the Supreme Court in the case of Bhimandas Ambwani (supra), it is directed that date of issuance of notifications under section 4 (1) of the Act shall be treated as date of this order in respect of lands involved in OWP No. 477/2010 and OWP No. 1301/2016 except lands in villages Neera, Krawah, Gund Akalkot and Gund Tethar and Land Acquisitions Officer is directed to conclude the proceedings within a period four months from today. Needless to state that the aforesaid directions are confined to the petitioners in this bunch of writ petitions and Land Acquisition Officer shall be entitled to appropriate the amount if any paid to the petitioners while passing the awards. 21. With the aforesaid directions, the writ petitions are disposed of.