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2016 DIGILAW 619 (JK)

Mohd. Ashraf Kumar v. State of J&K

2016-11-30

B.S.WALIA, R.SUDHAKAR

body2016
JUDGMENT : 1. The 4th respondent in the writ petition has filed this appeal. He is aggrieved by the directions issued by the Writ Court directing the Assistant Commissioner, Revenue, Anantnag to proceed with the matter in accordance with law and ensure that the Order No. ACR/Revenue/390-91, dated 05.10.2013 is complied with. The said order (annexure-A page 23) reads as follows: "The Manager J&K Bank Branch Srigufwara No. ACR/Reader/390-91, Dt:-5.10.2013 Subject: Withholding of A/C No. CD-1226 in name of Mohd. Ashraf Kumar. Whereas some compensation amount on account of land acquisition at village Sallar has wrongly been released in the above mentioned account number. Till the matter is settled you are requested to withheld/freeze the account with immediate effect & stop any type of money transfer also. Assistant Commissioner Revenue Collector Land Acquisition PWD Anantnag." The controversy arose when a plot of land measuring 5 Kanals under Survey No. 91 situated in Sallar, Batapora was acquired by the respondents 1, 2 and 3 in the present appeal (respondents 1, 2 and 3 in the writ petition as well). The said land was acquired for construction of water reservoir. The respondents 4, 5 and 6 in this appeal also stake claim to the property and in the matter of settling the compensation amount it is alleged by the writ petitioners (respondents 4, 5 and 6 herein) that some more has been paid over to the 4th respondent of the writ petition-the appellant herein. These three respondents i.e. respondents 4, 5 and 6, ventilated their grievance before the Assistant Commissioner, Revenue, Anantnag and that grievance was accorded consideration by passing the order dated 05.10.2013 freezing the account of the present appellant 4th respondent in the writ petition which was in J&K Bank Branch Srigufwara. Further order was passed by the Assistant Commissioner Revenue, Anantnag, dated 16.07.2014 directing the office to recover the excess compensation amount from the appellant-respondent No. 4 in the writ petition. Since it was not complied with by the authority. Mandamus was filed by the three writ petitioners i.e. respondents 4, 5 and 6 in the appeal, and that came to be disposed of by the learned Single Judge in the following manner: "3. Petitioners are aggrieved that the order dated 23rd July 2014 is not being complied with and instructions of Assistant Commissioner Revenue are not being carried out. 2. Petitioners are aggrieved that the order dated 23rd July 2014 is not being complied with and instructions of Assistant Commissioner Revenue are not being carried out. 2. Petition is disposed of with a direction to Assistant Commissioner Revenue, Anantnag to proceed in the matter in accordance with law and ensure that Order No. ACR/Revenue/390-91, dated 05.10.2013 is complied with." 3. The 4th respondent in the writ petition has filed the present appeal stating that he has filed an appeal before the Assistant Deputy Commissioner, Anantnag (Annexure L-7) titled Mohammad Ashraf Kumar v. Mohammad Yousuf Kumar and that appeal relates to mutation No. 4408, dated 20.02.2008. This appeal has been adjourned from time to time and has not been disposed of. 4. The First Division Bench while hearing the parties has passed the order dated 28.07.2015 which reads as follows: "As no decision has been taken in the appeal which is pending before the Additional Deputy Commissioner, Anantnag, no further orders can be passed. Hence the said authority is directed to disposed of the appeal filed by the appellant and take a decision within a period of eight weeks....." 5. In fact, if the appeal is disposed of the right of the appellant viz-à-viz the private respondents 4, 5 and 6 would be resolved and thereafter the compensation amount can be distributed among them according to their rights, title and entitlement. In this view of the matter, the direction was issued by the First Division Bench to dispose of the said appeal and give quietus to the litigation between the parties and proceed as per law so that the parties get their rightful share. 6. Keeping that in mind, we requested Ms. Moksha Kazmi, Additional General, to get the status of the appeal filed by the appellant and 'pending before the Additional Deputy Commissioner, Anantnag. She was able to get a status report dated 29.11.2016. The relevant part of the report is extracted below: "2. That on presentation of appeal, order under appeal was kept in abeyance till next date of hearing and case was listed on 28.02.2015. 3. That right from 03.03.2015 till 12.09.2015, the appellant continuously remained absent during which case was called six times, as such, no effective proceedings could be taken. 4. That on 31.03.2016 the appellant's counsel was present and respondent also caused his appearance and case was listed for further proceedings on 18.06.2016. 3. That right from 03.03.2015 till 12.09.2015, the appellant continuously remained absent during which case was called six times, as such, no effective proceedings could be taken. 4. That on 31.03.2016 the appellant's counsel was present and respondent also caused his appearance and case was listed for further proceedings on 18.06.2016. However, due to engagement of answering respondent (presiding officer) in Assembly bye-elections the case couldn't be heard. 5. That due to recent unrest no effective proceedings could be taken due to absence of parties/counsels, inspite of the fact that the case was listed twice. 6. That in the next hearing effective order will be passed to dispose of the case at an earliest. 7. That the delay in the disposal of the case has been caused due to non-appearance of appellant, assembly bye-elections and current unrest due to which could order dated 28.07.2015 couldn't be implemented." 7. While we notice that the appellant has not shown any serious concern to dispose of the matter, no purpose would be served in keeping the present appeal pending unless and until the right of the parties are not determined in the said appeal. Therefore, the following order is passed in partial modification of the order passed by the learned Single Judge; (a) The appellant will appear before the Additional Deputy Commissioner, Anantnag on 28/29.12.2016. On that day also, respondent Nos. 4, 5 and 6 herein shall also appear. The Additional Deputy Commissioner, Anantnag shall cause intimation to respondents 4, 5 and 6 herein for being present for hearing. After hearing both the parties, final orders to be passed on or before the 3rd week of January, 2017. (b) On conclusion of the appeal by the authority, the order shall be communicated to the Collector, Land Acquisition, Anantnag, so as to enable him to readjust the compensation amount between the parties as per their legal right, title and entitlement. (c) If any one of the parties is still aggrieved, they are at liberty to enforce their rights in accordance with law. The appeal is disposed of in the above terms.