Research › Search › Judgment

J&K High Court · body

2020 DIGILAW 620 (JK)

Balvir Singh v. State of J&K

2020-11-25

RAJESH BINDAL

body2020
Order Rajesh Bindal, J.—This order will dispose of two writ petitions bearing OWP Nos. 2327 and 2331/2018, as common issues of law and facts are involved. 2. The facts are being taken from OWP No. 2327/2018. The petitioner had approached this Court praying for the following reliefs : “(i) Writ of Mandamus, directing the respondents not to forcibly demolish the structure/house of the petitioner or encroach upon the land of the petitioner without acquiring the land of the petitioner and paying compensation under law. (ii) Writ of Prohibition; for bearing the respondents from forcibly occupying or trespassing or taking over the property of the petitioner situated at Village Chak Avtara, Bisnah without following due procedure under Land Acquisition Act or any other law and issuing prior notice to petitioner and following procedure as envisaged under law.” 3. As is evident from the pleadings in the instant writ petition, the issue sought to be raised by the petitioner was that he is owner of a piece of plot measuring 11 marlas, where he had constructed his house. The petitioner in OWP No. 2331 of 2018 is owner of a plot measuring 10 marlas, where he claims to have laid plinths for construction of house. It is further pleaded that the government announced construction of ring road from Raya Morh to Nagrota and National Highways Authority of India (NHAI) was assigned the project for execution. The total length of road is 58.2 kilometers. The cost of the project is stated to be about Rs. 2,100/- crores. It is further pleaded that the project is being executed on an Engineering, Procurement and Construction (EPC) basis. The ring road is to pass through 56 villages, 09 tehsils, falling in two districts. The grievance sought to be raised by the petitioner is that the petitioner is being asked to vacate his house though the land in question has not been acquired and no compensation has been paid to them. The petitioner has learnt that meager compensation has been offered to the land owners for their fertile land. It has further been stated in the petition that no notice was served either on the petitioner or on other residents of the village, whose land was acquired. 4. No one appeared for the respondents Nos. The petitioner has learnt that meager compensation has been offered to the land owners for their fertile land. It has further been stated in the petition that no notice was served either on the petitioner or on other residents of the village, whose land was acquired. 4. No one appeared for the respondents Nos. 1 to 4, when the case was taken up for hearing, though, it is a petition challenging acquisition of land for an important infra project. 5. Mr. Jatinder Choudhary, the learned counsel appearing for the respondent No. 5, submitted that the claim made by the petitioner that the land in question was not acquired is not tenable as notification u/s 4(1) of the J&K State Land Acquisition Act, 1990, (for short, ‘the Act’) was issued on 16.06.2017. The same was followed by a notification u/s 6 of the Act, on 31.08.2017. As the project was of urgent nature, the Land Acquisition Collector had announced the award on 26.10.2017. He further referred to the objections filed by him wherein specific stand taken is that the amount of compensation qua the petitioner has already been assessed. Even the compensation to the tune of Rs. 6,24,799/-, qua the super structure standing on the plot owned by the petitioner was also assessed. Entire amount of compensation already stands deposited with the Land Acquisition Collector, which the petitioner may withdraw after completing the formalities. The project is nearing completion. 6. He further submitted that the petitioner alongwith certain other land owners had subsequently filed writ petition bearing WP(C) No. 1901/2019, in this Court, where the prayer made is that they should be paid compensation in terms of The Right of Fair Compensation and Transparency in Land Acquisition, Rehabilitation & Resettlement Act, 2013 (for short ‘the 2013 Act’). Indirectly even acquisition has also been challenged. 7. He further argued that on account of interim stay granted by this Court, the prestigious project has been put on hold, which will be a breather for Jammu City as the entire onward traffic will pass through this road. Further it will create infrastructural facilities in the border area, which is very important for the security of the nation. 8. He further argued that on account of interim stay granted by this Court, the prestigious project has been put on hold, which will be a breather for Jammu City as the entire onward traffic will pass through this road. Further it will create infrastructural facilities in the border area, which is very important for the security of the nation. 8. The submission is that the acquisition process having been completed and the award announced by the Collector, the petitioner’s pleadings that the possession of his plot and house is sought to be taken without acquisition thereof, does not stand. In fact, it is misstatement of fact. The writ petition accordingly, deserves to be dismissed. 9. After hearing learned counsel for the respondent No. 5, I do not find any merit in the present petitions. 10. The petitioner had approached this Court with a grievance that possession of the house owned by him is sought to be taken without acquisition of the land, on which the same has been constructed. However, this fact has been denied in the objections filed by the respondent No. 5, way back in December, 2018. To the objections so filed, no replication has been filed by the petitioner. Hence, the stand taken by the respondent No. 5, has not been controverted. In any case, the award passed by the Collector pertaining to the land in question dated 26.10.2017, has been placed on record where name of the petitioner is recorded with reference to the compensation assessed for the plot owned by him as well as the value of super structure existing thereon. As stated by the learned counsel for the respondent No. 5, the amount of compensation so assessed has already been deposited with the Land Acquisition Collector, which the petitioner is at liberty to withdraw after completing the formalities required. Further knowledge of the petitioner about the factum of acquisition of land and his consent to the same is evident from the fact that he; the petitioner in OWP No. 2331/2018 alongwith others, had subsequently filed writ petition bearing WP(C) No. 1901/2019, claiming compensation for the same plot in terms of the provisions of the 2013 Act, which is still pending. It is pertinent to mention here that the petitioners herein have not mentioned the details of the present writ petitions in WP(C) No. 1901/2019, though fact is mentioned. 11. It is pertinent to mention here that the petitioners herein have not mentioned the details of the present writ petitions in WP(C) No. 1901/2019, though fact is mentioned. 11. Even otherwise, it has been consistently opined by the Courts that for the matters pertaining to acquisition of land for creation of infrastructural facilities, which are of national importance, interference of the Courts should be minimal. Reference can be made to the observations made by Hon’ble the Supreme Court in Jaipur Metro Rail Corporation Limited vs. Alok Kotalwala and others reported as AIR 2013 SC 754. Relevant paras therefrom are reproduced hereunder: “31. With respect to ecological balance, there has to be sustainable development and such projects of immense public importance cannot he halted. It is not the case that requisite permissions from the Central Government and the State Government have not been obtained, thus, objections were flimsy. In other petitions also pertaining to the same Project, this Court has held that such project of immense public importance should not be put to halt. Thus, flimsy and untenable objections were raised, which have been rightly rejected after due application of mind. x x x x 48. On merits, we find the order of interim stay passed by the single Bench to be untenable, thus, we have no hesitation in setting aside the same. Suffice it to observe that in such cases of public importance of Metro Rail Project, there should not be any interim stay, rather an effort should be made to decide the matter finally at an early date. Staying the land acquisition proceedings is not appropriate and would be against the larger public interest involved in such projects. Thus, relying upon the decision in the case of Ramniklal N. Bhutta, ( AIR 1997 SC 1236 ) (supra), we hold that in the matter of immense public importance like the present one, the power to grant interim stay under Article 226 of the Constitution should not be exercised in the normal course.” 12. The project in hand is for construction of ring road from Raya Morh to Nagrota, total length whereof is 58.25 km and the project cost is Rs. 2100/- crores. It is meant to create infrastructural facilities in Jammu Kashmir. The project in hand is for construction of ring road from Raya Morh to Nagrota, total length whereof is 58.25 km and the project cost is Rs. 2100/- crores. It is meant to create infrastructural facilities in Jammu Kashmir. It will not only ease out traffic problem in Jammu City but also work as a ring road, which will originate about 20 km before Jammu city and will link the Jammu-Srinagar Highway, after crossing the Nagrota city, which is about 11 kilometers from Jammu. This will also create infrastructural facilities in the border areas for movement of our armed forces. 13. It would be apt to refer to decision of this Court in Gajinder Singh and others v. State of J&K and others, reported as 2017(1) J.K.J. 520 , wherein while relying on judgments of Hon’ble the Supreme Court in Special Deputy Controller, Land Acquisition, CMDA v. J. Sivaprakasam and others, (2011) 1 SCC 330 ; Swaran Lata v. State of Haryana, (2010) 4 SCC 532 ; and May George v. Special Tehsildar and ors., (2010) 13 SCC 98 , elaborated the purpose of publication u/s 4 of the Act and opined that the objective is to give notice, that may not always be actual. It can be implied as well as constructive. This Court further observed that when huge chunk of land is acquired, acquisition proceedings on the behest of owners of small pieces of land forming part thereof should not be disturbed, especially when the award has already been passed Relevant extracts from the judgments of Hon’ble the Supreme Court referred (supra), for facility of reference are reproduced hereunder: i) J. Sivaprakasam and others case (supra): “21. The acquiring authority need not prove actual notice of the proposal to acquire under section 4(1) of the Act, to the person challenging the acquisition. As the purpose of publication of public notice provided in section 4(1) of the Act is to give notice of the proposal of acquisition to the persons concerned, such notice can also be by way of implied notice or constructive notice. For this purpose, we may refer to the difference between actual, implied and constructive notices. 21.1) When notice is directly served upon a party in a formal manner or when it is received personally by him, there is actual notice. For this purpose, we may refer to the difference between actual, implied and constructive notices. 21.1) When notice is directly served upon a party in a formal manner or when it is received personally by him, there is actual notice. 21.2) If from the facts it can be inferred that a party knew about the subject matter of the notice, knowledge is imputed by implied notice. For example, if the purpose of the notice is to require a party to appear before an authority on a particular date, even though such a notice is not personally served on him, if the person appears before the authority on that date or participates in the subsequent proceedings, then the person can be said to have implied notice. 21.3) Notice arising by presumption of law from the existence of certain specified facts and circumstances is constructive or deemed notice. For example, any person purchasing or obtaining a transfer of an immovable property is deemed to have notice of all transactions relating to such property effected by registered instruments till the date of his acquisition. Or, where the statute provides for publication of the notification relating to a proposed acquisition of lands in the Gazette and newspapers and by causing public notice of the substance of the notification at convenient places in the locality, but does not provide for actual direct notice, then such provision provides for constructive notice; and on fulfillment of those requirements, all persons interested in the lands proposed for acquisition are deemed to have notice of the proposal regarding acquisition.” ii) Swaran Lata v. State of Haryana (supra): “12. ………….the only ground taken in the writ petition has been that substance of the notification under Section 4 and declaration under Section 6 of Act 1894 had been published in the newspapers having no wide circulation. Even if, the submission made by the petitioners is accepted, it cannot be presumed that they could not be aware of acquisition proceedings for the reason that very huge chunk of land belonging to large number of tenure holders had been notified for acquisition. Therefore, it should have been a talk of the town. Thus, it cannot be presumed that petitioners could not have knowledge of the acquisition proceedings.” iii) May George v. Special Tehsildar and ors. (supra) : “10. Therefore, it should have been a talk of the town. Thus, it cannot be presumed that petitioners could not have knowledge of the acquisition proceedings.” iii) May George v. Special Tehsildar and ors. (supra) : “10. …………………More so, appellant’s land was of negligible area in comparison of the total land acquired and therefore, at the behest of only one person, the acquisition proceedings cannot be disturbed.” 14. In the case in hand, the total land acquired as per the award dated 26.10.2017 is 230 kanals and 02 sirsai. Admittedly, the plot of petitioner in OWP No. 2327/2018 is 11 marlas whereas the plot of petitioner in OWP No. 2331/2018 is 10 marlas, which as compared to the total land acquired is insignificant. Further, the instant writ petitions are filed in the month of November, 2018, i.e. more than one year after announcement of the award by the collector. 15. For the reasons mentioned above, I do not find any merit in these present petitions. The same are accordingly, dismissed. 16. Before parting with the order, it may be added that in order to protect the interest of land owners, who very often are swindled by middleman during the process of disbursement of compensation or harassed by the officials in the office of the Land Acquisition Collector while disbursing the compensation for acquisition of land, Hon’ble High Court of Punjab & Haryana in R.F.A. No. 1492 of 2008 titled as Haryana State Industrial & Infrastructure Development Corporation Ltd. v. Smt. Krishna Rani and another, decided on April 8, 2011, while referring to the directions issued by Hon’ble the Supreme Court in Haryana State Industrial Development Corporation v. Pran Sukh and others, 2010 AIR SCW 631 opined that the most sustainable way to avoid such harassment of land owners in addition to lessening the time, energy and resources of the concerned department involved is that, subsequent to receipt of the particulars of land owners eligible for compensation, the amount of compensation should be transferred in the bank account of said land owners by the Collector directly and immediately after the award is announced. The relevant paras therefrom are reproduced hereunder: “To ensure that the land owners are not fleeced by the middleman in the process of disbursement of enhanced compensation, Hon’ble the Supreme Court in Haryana State Industrial Development Corporation v. Pran Sukh and others, 2010 AIR SCW 631, issued certain directions. The relevant paras therefrom are reproduced hereunder: “To ensure that the land owners are not fleeced by the middleman in the process of disbursement of enhanced compensation, Hon’ble the Supreme Court in Haryana State Industrial Development Corporation v. Pran Sukh and others, 2010 AIR SCW 631, issued certain directions. I deem it appropriate to issue same directions in the present set of appeals as well. The same are as under: “With a view to ensure that the land owners are not fleeced by the middleman, we deem it appropriate to issue following further directions: (i) The Land Acquisition Collector shall depute officers subordinate to him not below the rank of Naib Tehsildar, who shall get in touch with all the land owners and/or their legal representatives and inform them about their entitlement and right to receive enhanced compensation. (ii) The concerned officers shall also instruct the land owners and/or their legal representatives to open savings bank account in case they already do not have such account. (iii) The bank account numbers of the land owners should be given to the Land Acquisition Collector within three months. (iv) The Land Acquisition Collector shall deposit the cheques of compensation in the bank accounts of the land owners.” Taking lead from the aforesaid directions issued by Hon’ble the Supreme Court and finding that harassment of the land owners is not only at the stage when enhanced amount of compensation is to be paid, rather, it is even at the stage when the award by the Collector is announced as for the payment of compensation, the land owners are to run after the Patwaris or the officials in the office of the Collector. Section 9 of the Act provides that the Collector shall issue notice to all concerned to enable them to stake their claim regarding compensation for the land, which has been acquired as the State intends to take possession thereof. The notice is required to be served upon the owners/occupiers of the land. Section 10 of the Act empowers the Collector to require any such person to submit to him a statement containing the name of every other person possessing any interest in the land or any part thereof as co-owner, mortgagee, tenant etc. and the nature of such interest etc. Section 10 of the Act empowers the Collector to require any such person to submit to him a statement containing the name of every other person possessing any interest in the land or any part thereof as co-owner, mortgagee, tenant etc. and the nature of such interest etc. Section 11 of the Act casts a duty on the Collector to enquire into the objections, if any, filed by the persons in pursuance to notice given under Section 9 of the Act pertaining to the measurements and valuation of land and shall make an award pertaining to valuation of the land and also the apportionment of compensation, in case required. In terms of Section 12 of the Act, the award announced by the Collector is deemed to be final and conclusive between the Collector and the persons interested whether they appear before the Collector or not. A notice of the award is required to be given to the persons who were not personally present when the award was pronounced. x x x x …………..The land owners can be asked to furnish the details of their bank accounts in response to the notices issued to them under Section 9 of the Act and in all undisputed claims, the amount should directly be transferred by the Collector in the bank accounts of the land owners immediately after announcement of the award. This will not only save harassment of the land owners but also time and energy of the officials of the office of the Collector. The aforesaid system should not only be restricted to the State of Haryana, rather, the same system should be followed even in the State of Punjab and Union Territory, Chandigarh, where also the Collector at the time of issuance of notices under Section 9 of the Act should ask the land owners to furnish the details of their bank account particulars and the Collector shall be duty-bound to directly transfer the amount of compensation in their bank accounts in all the undisputed cases. As far as the cases where there is some dispute regarding entitlement of compensation or the cases where the land owners have not approached the Collector for receiving the amount, as learned counsel for the State had not been able to take a definite stand, the State shall frame a policy to keep such amount in the manner that the land owners therein get reasonable return on the amount which is paid to them on a later date. The appeals stand disposed of in the above terms.” 17. The writ petitions are disposed of accordingly. 18. Copy of this order be sent by the Registry of this Court to the Secretary, Department of Revenue and Secretary Department of Law, Government of Jammu & Kashmir for compliance.