Research › Search › Judgment

J&K High Court · body

2019 DIGILAW 330 (JK)

Sakina v. State of J&K

2019-07-09

SANJEEV KUMAR

body2019
JUDGEMENT : Sanjeev Kumar, J.—The petitioner is aggrieved of the final award issued by the respondent No.2 dated 14.02.2005 and challenges the same to the extent of acquisition of the land measuring 7 Marlas comprises in Khasra No.96 and the land measuring 6 Kanals 14 Marlas in Khasra No.97 situated at village Bhagote in Batote, Tehsil and District Ramban. The impugned award has been challenged primarily on the ground that it contravenes Section 11-B of the State Land Acquisition Act, Samvat 1990 (hereinafter referred to as ‘the Act’). The precise submission of learned counsel for the petitioner is that no award under the Act can be passed after two years from the date of publication of declaration under Section 6 of the Act and if it is made, the same is vitiated. 2. With a view to appreciate the contention of learned counsel appearing for the petitioner, it would be necessary to notice, though briefly, the facts leading to the filing of the instant petition. 3. The petitioner claims to be only the daughter of late Sh. Gulab Din Sheikh, who even after her marriage is staying with her father as khana nisheen daughter. Shri Gulab Din Sheikh, it is claimed, was having residential house and the landed property situated in village Bhagote, Batote, Tehsil and District Ramban. After the demise of Sh. Gulab Din Sheikh, the entire property of Sh. Gulab Din Sheikh claims to have been inherited by the petitioner. The petitioner claims that she is the owner of 7 Marlas of the land falling under Khasra No.96 on which she has one residential house, one cow shed and one shop. She also claims that another piece of the land measuring 6 Kanals 14 Marlas comprised in Khasra No.97 situated in the same village is also owned by her. It is stated that in the month of October, 1994, the respondent No.3, took possession of some immovable property in village Dharmud and Champa of Tehsil and District Ramban without making any payment of compensation to the owners. Aggrieved thereof, some aggrieved persons filed writ petition No.13 of 2001 titled Mohd Shafi and others v. Union of India and others in this Court. The petitioner was not amongst the writ petitioners as no landed property of the petitioner in the aforesaid villages had been taken possession of. Aggrieved thereof, some aggrieved persons filed writ petition No.13 of 2001 titled Mohd Shafi and others v. Union of India and others in this Court. The petitioner was not amongst the writ petitioners as no landed property of the petitioner in the aforesaid villages had been taken possession of. The aforesaid writ petition was disposed of by this Court vide judgment dated 05.09.2001 whereby a direction was issued to the respondent No.3 to formally acquire the land and pay the compensation to the writ petitioners in the writ petition No. 13 of 2001. The petitioner further submits that subsequently respondent No.2 vide No.253-591/ACQ dated 21.06.2002 issued Notification under Section 4(1) of the Act, whereby amongst other, the land owned and possessed by the petitioner in Khasra Nos. 96 and 97 was also notified for acquisition. The case was then submitted to the Revenue Department for issuance of Notification under Sections 6 and 7 of the Land Acquisition Act. The Revenue Department of the State Government vide its No.91-RD of 2002 issued Notification under Sections 6 and 7 of the Act and conveyed the same to the respondent No.2 vide its communication bearing endorsement No.48-Rev (LAG) of 2002 dated 18.10.2002. The respondent No.2 as a follow up, issued notice under Sections 9 and 9-A of the Act vide its communication No.550-52-ACQ dated 22.10.2002 to the interested persons calling objections with regard to the measurement of the land and the rate of compensation that may be assessed in the matter. It is further alleged that the respondent No.2 delayed making of the final award for undisclosed reasons and finally passed the same vide his No.1040-42/Acq. dated 14.02.2005 whereby the land and houses of the petitioner falling in Khasra Nos. 96 and 97 have also been acquired and the compensation assessed. The petitioner claims that she did not accept the award or compensation assessed therein nor the respondent No.2 or respondent No.3 has taken over the possession of the acquired immovable property belonging to the petitioner so far. 4. 96 and 97 have also been acquired and the compensation assessed. The petitioner claims that she did not accept the award or compensation assessed therein nor the respondent No.2 or respondent No.3 has taken over the possession of the acquired immovable property belonging to the petitioner so far. 4. In the background of the aforesaid factual foundation laid in the writ petition, the petitioner has raised a specific point for consideration as to whether the award passed by the respondent No.2 in derogation from the provisions of Section 11-B of the Act is sustainable in law and the entire acquisition proceedings would be deemed to have lapsed by afflux of time as provided under Section 11-B. Learned counsel for the petitioner claims that since the declaration under Section 6 of the Act was made by respondent No.1 only on 18.10.2002, which is the date on which the State Revenue Department vide its communication No.91-RD of 2002 conveyed to the respondent No.3 about the issuance of the declaration and, thus, the final award made on 14.02.2005 is much beyond the stipulated period of two years fixed by Section 11-B of the Act inserted by the State Land Acquisition (Amendment) Act, 1997. Learned counsel for the petitioner, therefore, urges that by afflux of time and on account of failure of respondent No.2 to pass the award within a period of two years from the date of publication of declaration under Section 6 of the Act, the entire proceedings of the acquisition stood lapse and therefore, the final award passed after the expiry of the two years from the date of publication of declaration is nullity and cannot be acted upon. 5. Respondents 1 and 2 as also respondent No.3 have filed their objections. In the objections, filed by respondents 1 and 2 stand taken is that after the completion of the requisite formalities envisaged under different provisions of the Act, the respondent No.2 made a tentative award under Section 11 of the Act on 23.08.2002, i.e., well within the prescribed limit of two years from the date of declaration issued by the Government in the Revenue Department in terms of its Notification No.91-RD of 2002 dated 18.10.2002 and it is only the final award that was issued on 14.02.2005 after getting sanction from the competent authority. It is, thus, submitted by the respondents 1 and 2 that by issuance of the tentative award within the statutory period of two years from the date of Notification under Sections 6 and 7, the provisions of Section 11-B have been complied with. It is, thus, urged that the final award passed by the respondent No.2 cannot be held vitiated on the ground that the Collector has failed to pass the award in terms of the Section 11-B of the Act within the prescribed limit of two years. 6. So far as the reply affidavit filed by the respondent No.3 is concerned, the plea taken is that it is the Collector Land Acquisition, i.e., respondent No.2, who has made the final award after adopting all the requisite steps envisaged under different provisions of the Act. It is further contended that since the land was required for public purposes and to meet the interest of security of the State, as such, the same was acquired by the respondent No.2 on the request of respondent No.3. The Collector-respondent No.2 has followed the provisions of the Act in letter and spirit and has passed the award. The petitioner is only entitled to the compensation, which has been rightly assessed by the respondent No.2. 7. Having heard learned counsel for the parties and perused the record, it would be necessary to first set out the provision of Section 11-B which came to be inserted in the Act by virtue of the State Land Acquisition (Amendment) Act, 1997. “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 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. 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.” 8. The facts in the case are not in dispute at all. 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.” 8. The facts in the case are not in dispute at all. The Notification under Section 4(1) of the Land Acquisition Act was issued by the respondent No.2 on 21.06.2002 in which, amongst other lands, the land of the petitioner was also notified for acquisition. The petitioner did not file any objections nor did she object to the acquisition of her property in any court of law. The respondent No.2 after holding an inquiry under section 5-A submitted its report to the respondent No.1 for issuance of declaration under Section 6 of the Act. The respondent No.1, upon consideration of the report of the respondent No.2 made under Section 5-A (2) issued the declaration that the land was needed for public purposes vide Notification No.91-RD of 2002, which was conveyed to the Collector-respondent No.2 vide endorsement No.48-Rev (LAG) of 2002 dated 18.10.2002. It is also not in dispute that the land measuring 7 Marlas falling under Khasra no.96 and land measuring 6 Kanals 14 Marlas falling under Khasra No.97 belonging to the petitioner also came under acquisition. As is contended by the respondent, the tentative award was issued by the respondent no.2 vide No. 218/ACQ dated 23.08.2003. The tentative award issued by respondent No.2 was within the prescribed limit of two years from the date of declaration issued by the respondent No.1. The final award was, however, issued on 14.02.2005 which, admittedly, is beyond the prescribed limit of two years as envisages under Section 11-B of the Act. 9. In view of the admitted factual matrix of the case, the only question that begs determination in this case is; whether the entire acquisition proceedings stand lapsed for failure of the respondent no.2 to make the award under Section 11 of the Act within a period of two years from the date of publication of the declaration and if it is so what is the fate of the final award passed by the respondent No.2, which is impugned in this petition. An allied question that also falls for consideration in this petition is as to what relief the petitioner would be entitled to if the entire acquisition proceedings are held to have lapsed by afflux of time. 10. The answer to first question lies in the provision of Section 11 of the Act itself which, for expediency, is reproduced here under:— “Enquiry into measurements, value and claims and award by the Collector. 11. Enquiry and award by the Collector.–– (1) On the day so fixed or on any other day to which the enquiry has been adjourned, the Collector shall proceed to enquire into the objections (if any) which— (a) any person interested has stated pursuant to a notice given under section 9 to the measurements made under section 8, and into the value of the land at the date of the publication of the notification under sub-section (1) of section 4 and into the respective interest the persons claiming the compensation; (b) the Head of the Department or his nominee has stated pursuant to a notice given under section 9-A; and shall tentatively assess the compensation which in his opinion should be allowed for the land. (2) Where the amount of compensation tentatively assessed under sub-section (1) exceeds [the amount specified by the Government by notification,]the Collector shall refer the record of the case along with the statement of the tentative assessment of compensation for approval of the Revenue Minister or an officer specially empowered by him in this behalf. (3) In a case referred by the Collector under sub-section (2) the Revenue Minister or an Officer empowered by him in this behalf shall, after considering the report of the Collector and after making such further enquiry as may be necessary, determine the proper value of the property to be acquired and communicate it to the Collector and the value so determined shall form the basis of compensation to be allowed for the land. (4) The Collector shall thereupon make an award under his hand of— (i) the true area of the land; (ii) the compensation payable for the land; and (iii) the apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom, or of whose claims, he has information, whether or not they have respectively appeared before him. (5) An award made in contravention of the directions of the Revenue Minister or an officer specially empowered by him in this behalf with respect to the value of the land shall be void. OWP No.645/2005 Page 9 of 14 (6) [Notwithstanding anything contained in the aforesaid sub-sections, if at any stage of the proceedings, the Collector is satisfied that all the persons interested in the land who appeared before him have agreed in writing on the matters to be included in the award of the Collector in the form prescribed by rules made by the Government he may, without making further enquiry, make an award according to the terms of such agreement: Provided that no agreement shall be valid if it violates provisions of any law for the time being in force. (7) The determination of compensation for any land under sub-section (6) shall not in any way affect the determination of compensation in respect of other lands in the same locality or elsewhere in accordance with the other provisions of this Act. (8) Notwithstanding anything contained in the Registration Act, 1977 no agreement made under sub-section (6) shall be liable to registration under that Act.].” 11. From the perusal of Section 11 in its entirety, it becomes abundantly clear that it does not make any provision for making a tentative award by the Collector. It only envisages a tentative assessment of the compensation, which in the opinion of the Collector should be allowed for the land under acquisition. [See- Section 11 (1) (b)]. It is only where the amount of compensation tentatively assessed under Sub Section (1) exceeds the amount specified by the Government by Notification, the Collector shall refer the record of the case along with his tentative assessment of compensation for approval of the Revenue Minister or an officer specially empowered by the Revenue Minister in this behalf. (See- Section 11 Sub Section 2). It further transpires that in a case referred by the Collector under Sub Section 2 of Section 11, the Revenue Minister or an officer empowered by him in this behalf shall after considering the report of the Collector and making such further inquiry as may be necessary, determine the proper value of the property to be acquired and communicate it to the Collector. The value so determined by the Revenue Minister shall form basis of compensation to be allowed for the land. The value so determined by the Revenue Minister shall form basis of compensation to be allowed for the land. Upon receiving the approval of the tentative assessment of compensation made by the Collector or the determination of proper value of the property made by the Revenue Minister or his authorized officer as the case may be, the Collector shall make award. (See Section 11 Sub Section 4). 12. In view of the categoric provisions of Section 11, the Collector is authorized only to make award once as is evident from provisions of Sub Section 4 of the Section 11. The assessment of tentative compensation, which is subject to the approval of the Revenue Minister or an officer specially empowered by him in this behalf as envisaged under Sub Section 2 of the Section 11 is not an award, tentative or otherwise. 13. The plea of learned counsel for the respondents, Mr. Siddiqui that since the tentative award had been passed by the Collector within the prescribed period of two years and, therefore, Section 11(b) will have no play, is totally misconceived and therefore, deserves to be noticed only for objections. Admittedly, the award in the instant case was made by the Collector beyond the period of two years as prescribed under Section 11-B and by that time, the entire acquisition proceedings had lapsed by operation of the Section. If that is the position, the award of the respondent No.2 impugned in this petition shall be deemed to have been passed in the land acquisition proceedings, which had since long lapsed. To be precise and exact, the land acquisition proceedings in the instant case lapsed on 18.10.2004 when two years period from the date of publication of the declaration under Section 6 of the Act came to expire. 14. It is not the case of the respondents that the acquisition proceedings after the issuance of declaration under Section 6 of the Act remained suspended due to the order of stay issued by any court of competent jurisdiction so as to attract the explanation appended to Section 11-B. The position of law in this regard is well settled (See- Madhao Vs. The State of Maharashtra, (2007)7 SCC 555 ; R.Kolandaivelu and others v. Govt. The State of Maharashtra, (2007)7 SCC 555 ; R.Kolandaivelu and others v. Govt. of T.N. and another, (2010) 2 SCC 97 and Singareni Collieries Co.Ltd. v. Vemuganti Ramakrishan Rao and others, reported in 2013 (8) SCC 789 ) wherein it has been categorically held by the Hon’ble Supreme Court that if the award is not passed within the period of two years from the publication of the declaration under Section 6 of the Act, the proceedings under the Act would lapse. Similar question came up for consideration before the Supreme Court in the case of Laxman Pandya and others v. State of UP and others, 2011(14) SCC 94 . The Supreme Court while dealing with the question as to whether the High Court was justified in refusing to quash the acquisition proceedings despite the fact that the award was not made within the period prescribed under Section 11-A of the Act. The Apex Court in paragraph No.12 of the judgment held thus:— “12. A reading of the above reproduced provision makes it clear that the Collector is required to pass an award within the period of two years from the date of the publication of the declaration and if the award is not made within that period, the acquisition proceeding automatically lapses. The proviso to Section 11A lays down that where the declaration was published before commencement of the Land Acquisition (Amendment) Act 1984, the period of two years begins from the date of amendment, i.e. 24.09.1984. Explanation appearing below Section 11A lays down that in computing two years, the period during which any action or proceeding to be taken pursuance to the declaration is stayed by an order of a Court, shall be excluded.” 15. The view which I have taken with regard to interpretation of Section 11-B, I am fortified by the Single Bench judgments of this Court rendered in the case of National Highway 1-A Affected People Action Committee V. State of J&K and others, 2016(4) JKJ (HC) 507, Ab. Gani and others v. State and others, 2017 (5) JKJ (HC) 334. 16. The view which I have taken with regard to interpretation of Section 11-B, I am fortified by the Single Bench judgments of this Court rendered in the case of National Highway 1-A Affected People Action Committee V. State of J&K and others, 2016(4) JKJ (HC) 507, Ab. Gani and others v. State and others, 2017 (5) JKJ (HC) 334. 16. In view of the preceding analysis and the reasons given hereinabove, I am of the considered view that in the instant case on account of failure of the Collector to pass the award within a period of two years from the date of publication of declaration under Section 6 of the Act, the entire acquisition proceedings lapsed on 18.10.2004 and the award passed on 14.02.2005 after the lapse of the acquisition proceedings is nullity in the eyes of law. 17. Having held thus, the moot question that needs consideration is as to what relief the petitioner is entitled to in the fact situation of the case in hand. Admittedly, the impugned award was passed by the Collector on 14.02.2005, i.e., about 14 years back. The petitioner claims that despite the award having been passed on 14.02.2005, the petitioner is still in possession. 18. Per contra, learned ASGI, Mr. Sharma appearing for the respondents states that the whole land, which was subject matter of the impugned award is in their possession and the requisite compensation to the land owner has either been paid or deposited with the Collector. It is also claimed on behalf of the respondent army that the acquired land is required by the army for operation purposes and it would not be in the interest of security of the Country to put the petitioner back in possession of the subject land, more so, when it is situated in the middle of the entire chunk of the land acquired by the respondents in terms of the impugned award. It is the categoric stand of the petitioner that she never accepted the award nor has she received any compensation from the respondents. 19. In view of these peculiar circumstances, it would not be in the interest of justice to put the petitioner back in possession of the acquired land or permit her to continue the possession as the case may be as that would be to the serious prejudice of the security of the Army. 19. In view of these peculiar circumstances, it would not be in the interest of justice to put the petitioner back in possession of the acquired land or permit her to continue the possession as the case may be as that would be to the serious prejudice of the security of the Army. Accordingly, taking cue from the judgment of the Supreme Court of India in the case of Bhimandas Ambwani v. Delhi Power Company Limited, reported in 2013 (14) SCC 195 , this petition is disposed of by directing the Collector Land Acquisition respondent No. 2 to make the award treating Section 4 notification issued on this date , i.e., 09.07.2019 and make the award after hearing the parties within a period of four months from today. The inquiry of the Collector Land Acquisition shall only be limited to the working out of the just compensation payable to the petitioner for her land acquired by the respondents. Needless to say that the petitioner if not satisfied with the amount of compensation paid, shall be at liberty to seek a reference under Section 18 of the Act and to pursue the remedies available to her under the Act. 20. With these observations and directions, writ petition of the petitioner is, thus, disposed of in the terms mentioned above.