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2016 DIGILAW 641 (JK)

Inhabitants of Doda City v. State

2016-12-08

ALOK ARADHE

body2016
ORDER : Alok Aradhe, J. 1. In this writ petition under Article 226 of the Constitution of India read with Section 103 of the Constitution of J&K State, the petitioners, who are the inhabitants of Doda city seek quashment of final award dated 15th March, 2012 insofar as it pertains to the land at measuring 8.25 Marlas forming part of Khasra No. 1590/361-min, on which bathrooms and toilet of Government Girls Higher Secondary School, Doda are situate. It is the case of the petitioners that in the year 1946, a Primary School was established in Ward No. 4 of the Municipal Committee, Doda, which was subsequently in the year 1956 was upgraded to High School and thereafter in the year 1986, the School was further upgraded to Government Girls Higher Secondary School (10+2). 2. The facts giving rise to the filing of the writ petition briefly stated are that the aforesaid School is the only Girls School and the present strength of the girl students is 643. It has further been averred that in the year 2013, substantial portion of the School Building was damaged on account of earthquake and the School Authorities had no option, but to demolish four classrooms. The matter thereupon was taken up with the State Government and the State Government has sanctioned an amount of Rs. 1.98 crores for construction of building of Government Girls Higher Secondary School, Doda for construction of three rooms each on basement, ground floor and 1st floor and nine additional rooms are required to be constructed. Sometime in the second week of July, 2014, the respondent No. 4 informed the petitioner No. 5 that the land in question has been acquired for widening of the road from Bus stand to Tondwa. The petitioner No. 5 thereupon submitted a representation on 17th July, 2014 to respondent No. 4, in which inter-alia, it was pointed out that the road is already existing and the students would be deprived of the facilities provided to them in the school. It was further stated in the representation that no notice of acquisition proceedings was given to the Education Department. 3. It is the case of the petitioners that the petitioners applied under Right to information Act on 04th September, 2014 for supply of copy of the award as well as other relevant documents. It was further stated in the representation that no notice of acquisition proceedings was given to the Education Department. 3. It is the case of the petitioners that the petitioners applied under Right to information Act on 04th September, 2014 for supply of copy of the award as well as other relevant documents. Thereupon, vide Communication dated 08th September, 2014, the copy of the award as well as the documents sought for by the petitioners were supplied to them. It is the case of the petitioners that the land in question, which belongs to the School has been acquired dehors the provisions of the Act inasmuch as neither any notification under Section 4 of the Land Acquisition Act, 1990 (hereinafter referred to as 'the Act of 1990') was published nor any inquiry in terms of Section 5-A of the Act, 1990 was held and no notice under Section 9 of the Act, 1990 was issued to them. In the aforesaid factual background, the petitioners have approached this Court seeking the relief as stated supra. 4. Learned counsel for the petitioners further submitted that the satisfaction, which is contemplated under Section 6(1) of the Act, 1990 has to be recorded by the Government or the Revenue Minister, however, in the instant case, the satisfaction has been recorded by the Deputy Commissioner, Doda and therefore, the notification issued under Section 6 of the Act, 1990 is bad in law. In support of the aforesaid submissions, learned counsel for the petitioners has placed reliance on the decision of this Court in the case titled as Zakir Hussain and others Vs. State of J&K and another, 2011 (4) JKJ 127 . While referring to the averments made in the rejoinder, it is submitted that during the pendency of the instant writ petition, the Education Department has decided to construct 100 bedded double storied Girls Hostel for Government Girls Higher Secondary School, Doda. It is also averred in the rejoinder that the decision has been taken by the Education Department in consultation with the District Development Commissioner, Doda for construction of the said hostel and decision has to be taken to shift the Government City Middle School to some other place and the area of the said school has been decided to be given to Government Girls Higher Secondary School alongwith rejoinder. The Site plan for construction of 100 bedded double Storied Girls Hostel Building which has been approved by the Competent Authority has been annexed. It is also stated that after handing over the area, which was under the occupation of Government City Middle School, Doda and DIET office etc., the total area works out only 8 Kanals and 7 Marlas. It is pointed out that Municipal Committee, Doda has constructed the shopping complex at the beginning point on the land, which is the subject matter of the acquisition. The aforesaid construction has been done and completed recently. It is also submitted that in view of subsequent developments, the very purpose of acquisition of the land in question has been frustrated. 5. On the other hand, Mr. Faraz Iqbal, learned Dy. AG submits that the land in question has been acquired under the provisions of the Act and an award has already been passed and the compensation has been determined and has been paid to the land owners. It is also submitted that the land in question is recorded in the name of one-Rukmani Devi, which is in possession of the School. It is further submitted that major portion of the road has already been constructed and the petitioners have no locus to challenge the construction of road, which is being made for convenience of public in general. It is further submitted that the widening of the road would serve the larger public interest, for which the funds have already been received. 6. Learned counsel for the respondent No. 5 submitted that in the year 2002, the road in question was sanctioned and this is the fourth round of litigation, by which an attempt is being made to stall the process of construction of the road. It is further submitted that same inhabitants had filed two writ petitions, one of them being OWP No. 349/2011, which was disposed of with the liberty to the respondents to proceed with the matter of acquisition of land in accordance with law. It is further submitted that the petitioners have no locus to file the writ petition and the land in question is not recorded in the name of the school, but in the name of one-Rukmani Devi and the possession of land in question has already been taken. 7. I have considered the rival submissions made at the bar. It is further submitted that the petitioners have no locus to file the writ petition and the land in question is not recorded in the name of the school, but in the name of one-Rukmani Devi and the possession of land in question has already been taken. 7. I have considered the rival submissions made at the bar. Admittedly, in respect of land measuring 8.25 Marlas for forming a part of Khasra No. 1590/361-min, an award has been passed on 05th March, 2012 for the purposes of widening of the road. It is also not in dispute that on the land, which is sought to be acquired, bathrooms and toilets are in existence. The contention made by the learned counsel for the respondent No. 5 that the possession of the land in question has already been taken cannot be accepted in view of the stand taken by the official respondents in paragraph-4 of their objections, which reads as under:- "That the contents of para No. 4 of the petitioners are pertaining to the record. However, the damaged portion of the school has been re-constructed and the construction work is still going on. Moreover, acquisition of 8 Marlas land, belong to Mst. Rukmani Devi, under the possession of said school will in no way effect the smooth running of school. Otherwise also, in case the school authorities establish their ownership over the said acquired land before the Learned District Judge, Doda, where the unpaid awarded amount of compensation has been deposited, they will definitely get the payment thereof under the provisions of J&K Land Acquisition Act, 1990, which can be utilized for the welfare of the school." 8. Thus, it is evident that land in question is in possession of the school. It is also pertinent to mention herein that in the rejoinder, the petitioners have taken the stand during the pendency of the writ petition, the State Government has sanctioned construction of 100 bedded double storied hostel for Girls Higher Secondary School, Doda and Site Plan has been prepared on 19th August, 2015, which has been annexed with the rejoinder as Annexure-A. It is also stated that the Municipal Committee, Doda has constructed a shopping complex at the beginning point on the land, which was the subject matter of the acquisition. It is further stated that in the rejoinder, the aforesaid construction has been completed recently and, therefore, the very purpose of widening of the road is frustrated. 9. The petitioners are the residents of Doda and, therefore, they are interested in the fact that there is Government Girls Higher Secondary School, Doda where the students from the far-flung areas come to receive the education, runs properly. Therefore, by no stretch of imagination, it can be said that the petitioners are either not aggrieved persons or have no say in the matter or are busy bodies. Therefore, the submissions made on behalf of the respondents that the petitioners have no locus to maintain the petition does not deserve acceptance. 10. Section 46(1) of the Act, 1990 provides that the State Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken. From perusal of the averments made in paragraph-4 of the preliminary objections filed on behalf of respondent Nos. 1 to 4, it is evident that the possession of land in question has not been taken and the same is still in possession of the Education Department. Therefore, in the fact situation of the case and in view of the subsequent events, which have been taken place during the pendency of the writ petition, namely, construction of shopping complex by the Municipal Committee, Doda as well as sanction of 100 bedded hostel for the girls in the premises of Government Girls Higher Secondary School, Doda, I deem it appropriate to direct the State Government to decide the issue with regard to the acquisition of land in question, namely, the land in possession of the school in exercise of the powers under Section 46(1) of the Act, 1990. 11. Needless to state that the aforesaid exercise shall be carried out by the Competent Authority of the State Government by affording an opportunity of hearing to the petitioners as well as to respondent No. 5 and all other interested persons. Let the aforesaid exercise be carried out within a period of two months from the date of receipt of certified copy of the order passed today. Till the decision in the matter is taken by the State Government, an ad interim order dated 01st October, 2014 granted by this Court shall continue. Let the aforesaid exercise be carried out within a period of two months from the date of receipt of certified copy of the order passed today. Till the decision in the matter is taken by the State Government, an ad interim order dated 01st October, 2014 granted by this Court shall continue. It is made clear that this Court has not expressed any opinion on the merits of the case, as the questions, which may arise for consideration while dealing with the question of de-notifying the land in possession of school from acquisition are to be dealt with by the State Government. With the aforesaid directions, the writ petition is, accordingly, disposed of alongwith connected MPs. OWP No. 1358/2013 12. In view of the order passed by this Court in OWP No. 1527/2014, this writ petition is also disposed of on same terms and with similar directions. Disposed off.