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2021 DIGILAW 312 (JK)

Nazir Ahmad Shah v. Union Territory of J&K

2021-07-03

PANKAJ MITHAL, SANJAY DHAR

body2021
JUDGMENT : Pankaj Mithal, J. (Through Virtual Mode) 1. Heard Mr. D. C. Raina, learned AG assisted by Mr. Sajad Ashraf, learned GA. for respondent Nos. 1 to 6 & 8, Mr. Tahir Majid Shamsi, learned ASGI for respondent No. 7 & Mr. Manzoor Ahmad Dar, learned counsel for respondent No. 9. 2. The dispute in the present writ petition is regarding acquisition of 7 marlas of land falling under Survey No. 2013/415 min jumla at estate Zainakote Shalteng, Srinagar. The petitioner in filing the writ petition WP (C) No. 1706/2020 has prayed for the following relief:- (i) Issue an appropriate writ, order or direction in the nature of Mandamus, the decision of respondent No. 4 to release 50% of compensation determined for acquisition of land measuring 07 Marlas falling under Survey No. 2013/415 Min at estate Zainakote Shalteng, District Srinagar, in favour of respondent No. 9 be quashed. (ii) Issue an appropriate writ, order or direction in the nature of Mandamus, the respondent No. 4 be directed to release balance amount of compensation determined for acquisition of land measuring 07 marlas falling under Survey No. 2013/415 Min at estate Zainakote, Shalteng District Srinagar along-with interest as per the mandate of Section 80 of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. (iii) Issue an appropriate writ, order or direction in the nature of Mandamus, the respondents be restrained from transferring and mutating land measuring 07 marlas falling under Survey No. 2013/415 Min at estate Zainakote, Shalteng, District Srinagar acquired for public purpose, to that of Gurudwara Damdama Sahib. Or in the alternative (iv) Issue an appropriate writ, order or direction in the nature of mandamus, the entire process of acquisition which has a result of transferring and mutating land measuring 07 marlas under Survey No. 2013/415 min at estate Zainakote Shalteng, Srinagar to that of Gurudwara Damdama Sahib be declared as illegal and ultra-vires to the constitution of India and thereto the respondents be directed to return 7 marlas of land falling under Survey No. 2013/415 Min at estate Zainakote Shalteng Srinagar to the petitioner." 3. Learned counsel for the petitioner very fairly in the beginning itself submitted that he does not intend to press prayer No. 1 and 2 and that he is confining his arguments only in respect of prayer No. 3 or the alternative prayer No. 4. Learned counsel for the petitioner very fairly in the beginning itself submitted that he does not intend to press prayer No. 1 and 2 and that he is confining his arguments only in respect of prayer No. 3 or the alternative prayer No. 4. In other words, the petitioner through the medium of this writ petition only wants that the respondents be restrained from transferring the land in question in favour of the Gurudwara Damdama Sahib or mutating its name and that the entire process of acquisition be declared as illegal and ultra vires. 4. The petitioner alleges that the aforesaid land was proposed to be acquired initially vide notification No. 7 of 2015 as the land was required for rehabilitation of Gurudwara Sang Sahib as probably some of its land was utilized in the construction of the road. The said notification issued under Section 4 of the Land Acquisition Act was challenged by the petitioner by filing OWP No. 1629/2016 wherein by an interim order, the parties were directed to maintain status quo over the land in question. 5. Pending the aforesaid writ petition, the respondents issued another notification No. 6 of 2019 under Section 11 (1) of the Right to Fair Compensation and Transparency for Rehabilitation and Re-settlement Act 2013 which is equivalent to the notification as used to be issued under Section 4 (1) of the Land Acquisition Act, proposing to acquire the said land for public purpose. Subsequent to the aforesaid notification on the basis of negotiation and the decision taken by the High-Level Committee, the petitioner handed over the possession of the aforesaid land to the respondents and executed a Sale Deed dated 28th January 2020 transferring the said land in favour of Union Territory of J&K for a total sale consideration of Rs.14,08,750/- (Fourteen lacs, eight thousand, seven hundred and fifty) which was duly received by the petitioner. 6. The petitioner now contends that the respondents instead of utilizing the aforesaid land for any public purpose for which it was notified to be acquired is transferring it in the name of Gurudwara Damdama Sahib and getting its name mutated which is nothing but a fraud upon the petitioner. Therefore, the acquisition proceedings be declared illegal and the respondents be restrained from effecting the above transfer. 7. Therefore, the acquisition proceedings be declared illegal and the respondents be restrained from effecting the above transfer. 7. The facts as narrated in the writ petition itself makes it abundantly clear that the initial notification proposing to acquire the land in question lost all its efficacy once a fresh notification No. 6 of 2019 was issued proposing to acquire the said land. In view of the above, the writ petition No. 1629/2016 which challenges the aforesaid notification has outlived its utility and is of no consequence. Accordingly, it has become infructuous. 8. The challenge to the entire acquisition proceedings is misconceived inasmuch as from the record it transpires that there is only a proposal to acquire the land in question inasmuch as it has not been followed by a final notification of a declaration under Section 6 of the Land Acquisition Act which used to be issued under Section 6 of the Land Acquisition Act and now under Section 26 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. Thus, in the facts and circumstances, there is no acquisition which could be made subject matter of the challenge and the prayer in this regard is completely misplaced. 9. The sole grievance of the petitioner as appears from the pleadings and the arguments of the counsel is that since the fraud has been played upon the petitioner and the land has been taken over in the garb of utilizing it for public purpose, it cannot be handed over to Gurudwara. At the cost of re-petition, it is pointed out that the land was only proposed to be acquired, it had not been acquired finally. The petitioner in the light of the proposal to acquire the land may have agreed and transferred the said land by negotiations by means of the Sale Deed dated 28.01.2020 for due consideration. Once the land is so transferred by the petitioner in favour of the respondents, he loses all his rights, title and interest in the same which gets vested in the Union Territory of J&K. 10. The Sale Deed clearly mentions that the land is transferred to the Government free from all encumbrances and as such the Government having become the owner of the said land under the aforesaid sale deed is free to utilize it for any purpose it so likes. The Sale Deed clearly mentions that the land is transferred to the Government free from all encumbrances and as such the Government having become the owner of the said land under the aforesaid sale deed is free to utilize it for any purpose it so likes. The petitioner who has lost all his rights in the said land cannot dictate the purchaser the manner in which the land should be utilized. 11. Additionally, if the petitioner feels that any fraud has been played upon him in obtaining the sale deed, the appropriate remedy available to him is by way of a civil suit to get the sale deed set-aside or declared null and void, but so long as the said Sale Deed exist, the petitioner is not entitled to restrain the government from using the land in the manner it so decides. 12. Moreover, the land was notified to be acquired for the purposes of shifting utilities/structures to pave the way for the purpose of widening of a public road namely Srinagar-Baramulla Uri National Highway. Since the Gurudwara is located on one side of the said National Highway and part of its land was utilized for road widening, it had been considered appropriate to allocate part of the acquired land in its favour. The petitioner effectively participated in all the negotiations and even gave an undertaking in writing on 01.02.2020 in the presence of a witness that the case has been settled in PMC headed by Deputy Commissioner, Srinagar wherein rate of rupees 80,50,000/- per kanal (eighty Lacs, and Fifty Thousand Rupees) was approved and accepted by him for the aforesaid land. The said land for which PMC has been conducted is the bare minimum required for shifting of utilities from the road thereby clearing the way for smooth flow of traffic and mitigating any adverse effect to the human life. Thus, in the overall facts and circumstances of the case, when the petitioner has consciously participated in the negotiation and had agreed for the sale of the land in question to the Government at the agreed price, he cannot be permitted to turn around and to dispute its utilization by the Government. At least, it is not a fit case where this Court should exercise its discretionary jurisdiction. 13. At least, it is not a fit case where this Court should exercise its discretionary jurisdiction. 13. In the facts and circumstances of the case, writ petition OWP No. 1629/2016 is dismissed as infructuous and the writ petition OWP No. 1706/2020 is held to be devoid of merit and is accordingly dismissed with no order as to costs.