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2021 DIGILAW 134 (JK)

Mohammad Shafi Makhdoomi v. State of J&K

2021-03-29

ALI MOHAMMAD MAGREY, PUNEET GUPTA

body2021
Judgment Ali Mohammad Magrey, J.-The petitioners have knocked at the portals of this Court in granting them the following relief(s): “a) A writ or direction including one in the nature of certiorari, quashing the acquisition proceedings held by the respondents, including the notification contained in Annexure P2, P5 and P7 and all other notifications as may have been issued by the respondents in the matter. b) A writ, order or direction including one in the nature of Mandamus, commanding upon the respondents to stop forthwith their constructional activities on the land in question and desist from further altering the nature and character of the land in question, till the procedure provided by law is duly followed and the petitioners are awarded the compensation as due to them in accordance with law. c) A writ, order or direction including one in the nature of Mandamus, commanding upon the respondents to assess the compensation payable to the petitioners as per the market rate taking into consideration the commercial value of the properties in question, after hearing the petitioners and pay them same in accordance with law and with a further direction upon the respondents to allot suitable quantity of land to the petitioners at an appropriate place. d) Any other writ, order or direction which the Hon’ble Court may deem fit and proper in the facts and circumstances of the case may also be passed in favour of the petitioner and against the respondents.” 2. The case set up by the petitioners is that they claim to be owners in possession of a plot of land measuring 01 Kanal, 19 Marlas and 228 sft., along with a double storied house and single storied Kitchen situate at Buchwara, Srinagar, comprising under Survey No.1066/799/219-min. The said landed property is stated to have been purchased by the petitioners from its erstwhile owner, namely, Shri Hari Krishen Mirza S/o Pt. Tara Chand Mirza R/o Karan Nagar, Srinagar vide a sale deed dated 7th of May, 1973 duly registered on 2nd of June, 1973, whereafter the same stands mutated in the name of the petitioners in the relevant revenue records under Mutation No. 1423 dated 3rd of July, 1985. Besides the petitioners also claim to be in possession of a piece of land measuring 04 Marlas and 257 sft., comprised under Survey Nos. Besides the petitioners also claim to be in possession of a piece of land measuring 04 Marlas and 257 sft., comprised under Survey Nos. 220 min and 222-min, shown in the revenue records in the name of the Sarkar. This entire landed property is contended to have been enclosed by the petitioners by concrete brick walling. It is pleaded that apparently a notification under Section 4(1) of the J&K Land Acquisition Act was issued by the respondent No.6 under No. DCS/LAC/1916/956-71 dated 22nd of December, 2011 for acquisition of the above landed property, however, no such notification was published by the respondents in the Government Gazette. It is further contended that due to non-publication of the aforesaid notification in the Government Gazette, they remained completely unaware about the issuance of such notification. It is further stated that during the tourist season with effect from May to November every year, the petitioners have been putting the said properties for commercial use by letting the same to tourists through local Agents. Therefore, as stated, in such circumstances, coupled with non-communication of any information by the respondents qua the acquisition proceedings initiated by them, the petitioners were neither associated in the private negotiation proceedings as claimed by the respondents to have been undertaken on 11th of February, 2011 or the issuance of the notifications under Sections 6 and 7 vide No. DCS/LAC/1916/1367-72 dated 24th of February, 2012 or a notification under Section 9 and 9(A) stated to have been issued vide No. DCS/LAC/1916/1394-1400 dated 25th of February, 2012. The petitioners, as stated, for the first time acquired the knowledge of the aforesaid properties having been brought under acquisition proceedings when they found the respondent No.7/ Contractor appointed by the respondents having already entered in the premises of the properties of the petitioners and demolished the double storied house and the single storied kitchen existing thereon alongwith the moveable assets, furniture, fixtures and furnishings, etc., which kept there by the petitioners. Thereafter, the petitioners claim to have immediately approached the respondents for ascertaining the reason of forcible taking over of the properties by them and its demolition, moreso, when no notification for taking over of the possession had been issued and when no proceedings of the determination of the rates of compensation for acquisition had been undertaken. Thereafter, the petitioners claim to have immediately approached the respondents for ascertaining the reason of forcible taking over of the properties by them and its demolition, moreso, when no notification for taking over of the possession had been issued and when no proceedings of the determination of the rates of compensation for acquisition had been undertaken. Consequently, the office of respondent No.6, in terms of communication No. DCS/LAC/1916/919 dated 30th of October, 2012, approached the respondent-Executive Engineer for ascertaining as to how the work had been started without any final award having been issued and the property being handed over to the intending department. During the course of enquiry proceedings, the petitioners are stated to have discovered that the relevant contract for construction of Community Centre on the land in question has already been issued by respondent No.5 to respondent No.7 in terms of communication No. 11546-50 dated 3rd of September, 2012. Subsequently, it is contended that the respondents referred the matter to Tehsildar, South for demarcation of the land under norms and submission of report thereof. It is submitted that based on the report of measurement made by the Tehsildar, the respondents proceeded to issue a corrigendum to notice under Section 4 of the Land Acquisition Act under endorsement No. DCS/LAC/1916/1306-21 dated 2nd of February, 20132. In terms of the said corrigendum, while rectifying the errors as had been committed in terms of the initial notification under Section 4 dated 22nd of December, 2011, the respondents are stated to have again proceeded to reflect the land in question incorrectly by mentioning therein the land owned by the petitioners as 1 Kanal, 15 Marlas and 228 sft under Survey No.1066/799/2019 and a parcel of land as measuring 8 Marlas, 197 sft under Survey No. 220-min owned by Sarkar and 60 sft as proprietary land of Shri Hari Krishen Mirza. In terms of the said notification/ corrigendum, the respondents sought for objections to changes brought in the proposed acquisition, in respect thereto the petitioners filed their detailed objections, ascertaining to be the owners of the land measuring 2 Kanals, 4 Marlas and 213 sft, duly fenced. These objections of the petitioners were, however, not considered at all by the respondents, who, on the contrary, continued to hold the entire landed property unauthorizedly without issuing any notification for possession or conducting any enquiry for making of any award. These objections of the petitioners were, however, not considered at all by the respondents, who, on the contrary, continued to hold the entire landed property unauthorizedly without issuing any notification for possession or conducting any enquiry for making of any award. Despite the fact that the dispute with regard to ownership of the land measuring 8 Marlas and 197 sft, falling under Survey No.220-min and a portion of the land measuring 60 sft, under Survey no.222-min, is still left to be resolved and that the rate of compensation of the land has not been fixed and no enquiry in regard thereto has been held nor any award has been made, the respondents have continued to hold the possession of the land in question and carry out their constructional activities thereon through the Contractor/ respondent No.7. It is stated that the respondent No.7, acting at the instance of respondents 4 and 5 as also the respondent No.6, has engaged huge number of men and machinery on the property in question, besides having completely demolished the double storied house and the single storied kitchen existing thereon. The respondents, as stated, have completely demolished the brick walling as well as was existing around the land in question. In the light of this factual discourse, the petitioners contend that the procedure prescribed in the J&K Land Acquisition Act has been given a complete go-bye by the respondents while forcefully acquiring the property of the petitioners. 3. Mr Altaf Haqani, the learned Senior Counsel, representing the petitioners, submitted that impugned action of the respondents in entering into the properties of the petitioners, demolishing the construction(s) existing thereon and conducting excavation of the land is illegal, unconstitutional and arbitrary, thereby violating the fundamental right of the petitioners to hold and enjoy property. It is argued that the entire action initiated by the respondents is contrary to the mandate of law provided by the J&K Land Acquisition Act inasmuch as the land has not been demarcated, marked and measured in accordance with law. Mr Haqani submits that the respondents have entered into the possession of the land of the petitioners without any authority and, in the process, have altered the nature and character of the land to the prejudice of the petitioners without granting them any chance to establish their case for proper compensation. Mr Haqani submits that the respondents have entered into the possession of the land of the petitioners without any authority and, in the process, have altered the nature and character of the land to the prejudice of the petitioners without granting them any chance to establish their case for proper compensation. The learned Senior counsel pleads that the respondents have not, at all, followed the mandate of the J&K Land Acquisition Act governing the process of acquisition of properties for any public purpose in Jammu and Kashmir. It is contended that the petitioners have been representing before the respondents for seeking redressal of their grievances, as agitated herein this petition, but the respondents have not made any award nor have they paid any compensation to the petitioners. 4. Objections stand filed on behalf of the respondents. 5. In their objections, the respondents 1 to 3 and 6 have stated that there is nothing wrong with the proceedings initiated by the respondents in lieu of acquiring the land in question. It is further submitted that the respondents have initiated the acquisition proceedings within the four corners of the law as per the Land Acquisition Act, including issuance of notifications under Sections 4, 5, 6, 7 and 9 of the Land Acquisition Act. 6. Respondents 4 and 5, in their objections, have stated that the site was identified by the Collector concerned and notice under Section 4 of the J&K Land Acquisition Act was issued by the Collector vide letter dated 22nd of October, 2011. It is pleaded that a PNC meeting was held on 11th of February, 2012 under the Chairmanship of District Development Commissioner, Srinagar, wherein the land owner(s) was/ were not present. The Collector, as stated, was directed to process the case under compulsory mode of acquisition @ Rs.40.00 lacs per Kanal as per the Stamp Act rates and the work was allotted to respondent No.7 after the tenders were floated vide NIT dated 9th of June, 2012. 7. In their Rejoinder, the petitioners have contended that the notifications under challenge in the Writ petition are ultra vires the Statute having been issued in gross violation of the mandate of law contained in J&K Land Acquisition Act. It is stated that the said notifications are infested with grave legal errors, besides violating the fundamental right to property available to the petitioners. It is stated that the said notifications are infested with grave legal errors, besides violating the fundamental right to property available to the petitioners. It is pleaded that, admittedly, the corrigendum dated 2nd of February, 2013, amending the notification dated 27th of December, 2011, was not only issued subsequent to tentative award dated 14th of March, 2012, but the same was also not published in the local newspapers as required under law. 8. We have heard the learned counsel for the parties and have also gone through the record of the case as made available before us. 9. We, at the very outset, would like to mention here that right to hold immovable property continues to be a fundamental right in Jammu and Kashmir. It is well settled legal position that no person shall be deprived of his/ her property, except in accordance with the procedure prescribed under law and that no property shall be compulsorily acquired or requisitioned for any public purpose, save by authority of law. In this behalf, in Jammu and Kashmir, it is the J&K Land Acquisition Act which authorizes for compulsory acquisition of the immovable property for any public purpose. 10. In the given facts and circumstances of the case on hand and upon going through the relevant record, it appears that the mandate of Section 4(1) of the J&K Land Acquisition Act has not been followed by the respondents while acquiring the property of the petitioners, inasmuch as, admittedly, the notification has not been published in two daily Newspapers having wide circulation. There thus, is clear breach of mandate of Section 4(1) of the Land Acquisition Act. 11. Apart from the above, in the process of proposed acquisition of property, one of the fundamental issues of legal importance, in terms of Section 4(2) of the Land Acquisition Act, is that after the Collector concerned notifies any land in the manner prescribed under Section 4(1), being needed or likely to be needed for any public purpose, it only then becomes lawful for any Officer/Official, either generally or specially authorized by the Government in this behalf, to enter upon the said land. The Officer/ Official, in terms of the J&K Land Acquisition Act, can enter into the land proposed to be acquired only after notification is issued and published in terms of Section 4(1) of the Land Acquisition Act. The Officer/ Official, in terms of the J&K Land Acquisition Act, can enter into the land proposed to be acquired only after notification is issued and published in terms of Section 4(1) of the Land Acquisition Act. Seemingly, in the present case, no notification has not been published in terms of Section 4(1) of the Land Acquisition Act, meaning thereby that no Officer/Official will thus, have any legal right to enter upon the land which is proposed to be acquired. Moreover, when there is non-compliance of statutory provisions which affects the fundamental right of a person to hold the immovable property, the acquisition proceedings are rendered illegal and unconstitutional. 12. The purpose of publication of the notification in the process of acquiring any private property for public purpose, as is mandated by the J&K Land Acquisition Act, is twofold, first, to ensure that adequate publicity is given so that the landowners and persons interested will have an adequate opportunity to file their objections and, second, to give the landowners/ occupants a notice that it shall be lawful for any Officer/ official authorized by the Government to carry out the activities enumerated in the J&K Land Acquisition Act. In the present case, it is clear that both the aforesaid objects have been defeated by the respondents while initiating the process of acquiring the property of the petitioners, thereby violating the very mandate of the scheme of the Act. In this context, it can quite safely that breach of provisions of the J&K Land Acquisition Act has affected the fundamental right of the petitioners guaranteed to them under Article 19(f) and 31 of the Constitution of India. 13. While taking the view as taken hereinabove, we are supported by a judicial dictum rendered by the Division Bench of this Court reported in ‘Shankar Dass & Ors. v. State & Ors.; 2012 (2) JKJ 43 (HC)’. 14. For the foregoing reasons, this petition is allowed and, by a ‘Writ of Certiorari’, the notification issued under Section 4(1) of the J&K Land Acquisition Act, alongwith any other subsequent notification(s) issued in this behalf, including draft award, if any, are quashed. The respondents, by a ‘Writ of Mandamus’, are directed to initiate fresh process for acquisition of land which is subject matter of this Writ petition in accordance with the law and the rules governing the subject to ensure adequate compensation to the petitioners. 15. The respondents, by a ‘Writ of Mandamus’, are directed to initiate fresh process for acquisition of land which is subject matter of this Writ petition in accordance with the law and the rules governing the subject to ensure adequate compensation to the petitioners. 15. Writ petition disposed of as above, along with the connected CM(s). 16. Records be returned with utmost dispatch and against proper receipt through Mr Dar, learned Senior Additional Advocate General.