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2021 DIGILAW 469 (JK)

Ashiq Hussain v. State of J&K

2021-09-09

PANKAJ MITHAL, RAJNESH OSWAL

body2021
JUDGMENT : 1. Heard Sh. R.D. Singh Bandral, Sh. S.S. Nanda and Sh. Ravinder Gupta learned counsel for the parties. 2. The petitioners have invoked the writ jurisdiction of this court for quashing of notification dated 08.10.2012 issued under Section 6/7 of the Jammu and Kashmir Land Acquisition Act, 1990 (hereinafter referred to as the Act) and the consequential notices issued under Section 9 and 9-A thereof and pray that the acquisition proceedings be started afresh, if necessary so as to acquire the land in question. 3. The petitioners allege that about 130 kanals and 4.5 marlas of land was notified for proposed acquisition under Section 4 of the Act for the construction of Mavalkote-Suranda to Thetharka Road in Village Thetherka, Tehsil Gool District Ramban. It was followed by a declaration under Section 6(1) of the Act dated 18.10.2012. Thereafter, a tentative award was prepared on 13-06-2013 in respect of the above acquisition but till date no final award as contemplated vide Section 11 of the Act has been pronounced. 4. The respondents have filed objections to the writ petition admitting that the declaration under Section 6 of the Act was made on 08.10.2012 and that a tentative award was given but the final award could not be made for want of funds as the same were not made available by the intending department. 5. The argument is that the entire land acquisition proceedings have lapsed for want of award as no award was declared within a period of two years from the date of publication of the declaration under Section 6 of the Act. 6. Sh. Nanda, Senior Additional Advocate General has pointed out to the tentative award where it has been stated that the papers were submitted to the Divisional Commissioner Jammu for issuance of the notification under Section 6, 7 and 17 of the Act and, thus, contends that as the provisions of Section 17 of the Act were invoked, Section 11-B would not be applicable and the proceedings would not lapse. 7. The contention that the papers were submitted to the Divisional Commissioner Jammu for issuance of notification under Sections 6, 7 and 17 of the Act is not conclusive proof of the fact that in effect notification was issued under Section 17 of the Act and the enquiry under Section 5-A of the Act was dispensed with. 8. 7. The contention that the papers were submitted to the Divisional Commissioner Jammu for issuance of notification under Sections 6, 7 and 17 of the Act is not conclusive proof of the fact that in effect notification was issued under Section 17 of the Act and the enquiry under Section 5-A of the Act was dispensed with. 8. The respondents have not placed on record any material to demonstrate or establish that a notification under Section 17 of the Act was issued and the enquiry under Section 5-A was dispensed with. 9. It is not a case of the respondents that the land acquisition proceedings or the making of the award was stayed by any order of the court. 10. Sh. Nanda submits that most of the land-owners have accepted compensation and that compensation as per the tentative award has been distributed. 11. Learned counsel for the petitioners accepts that as per the tentative award 80% of the compensation has been received by some of the petitioners. 12. The payment and receipt of 80% of the compensation would not dilute the rigor of the statutory provisions, i.e., Section 11-B of the Act which mandates for the making of the award within a period of two years from the publication of the declaration under Section 6 of the Act and further provides that if such declaration is not made within the time, the entire acquisition proceedings would lapse. 13. Section 11-B of the Act clearly lays down that the Collector shall 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 no award is made within the said time period, the entire proceedings for the acquisition of land shall lapse. 14. In the case at hand, the declaration under Section 6 of the Act was made on 08.10.2012 and it is admitted on record that till date final award under Section 11 has not been made despite the period of 2 years having lapsed long back. There is no dispute to the legal proposition that the provisions of Section 11-B are mandatory in nature. 15. There is no dispute to the legal proposition that the provisions of Section 11-B are mandatory in nature. 15. The submission that Section 11-B of the Act is not applicable where urgency provisions have been invoked and the consideration of the objections have been dispensed with, is bereft of merit as there is no material or record to establish that provisions of Section 17 of the Act were utilised and the procedure for dealing with the objections as envisaged under Section 5-A were directed to be ignored. Mere reference in the tentative award that papers were submitted for issuing notification under Section 17 of the Act is meaningless and is of avail in the absence of any material that it was actually issued and the urgency clause was invoked so as to take the possession of the land notified to be acquired before the making of the award. Rather the perusal of the notification bearing no. 13/FC of 2012 issued by the respondent no. 2, that has been relied upon by the respondents in the tentative award to demonstrate that the provisions of sec. 17 of the Act were resorted to, is negated by the said notification itself, as there is no reference to the invoking of urgency clause in the said notification. 16. In Satendra Prasad Jain vs. State of U.P. (1993) 4 SCC 369 and in Awadh Bihari Yadav & Ors. vs. State of Bihar & Ors. 1995 (6) SCC 31 it has been held that the provisions of Section 11-A of the Land Acquisition Act which are in pari materia with Section 11-B of the Act are not applicable where land is acquired by invoking in provisions contained in Section 17 of the Act. However, distinguishing the above two judgments the Apex Court in Laxman Pandya vs. State of U.P. (2011) 14 SCC 94 held that the above two authorities are applicable where the possession of the land has been taken within the two years of the declaration under Section 6(1) of the Act and the land acquired vests with the State. Thus, it was held that where possession of the land has not been taken and no award has been passed within two years of publication of declaration under sec. 6(1) of the Act, land acquisition proceedings automatically lapses by virtue of the 11-A of the Act. 17. Thus, it was held that where possession of the land has not been taken and no award has been passed within two years of publication of declaration under sec. 6(1) of the Act, land acquisition proceedings automatically lapses by virtue of the 11-A of the Act. 17. In the present case the land had not vested in the State as the urgency provisions were not invoked and the possession if taken without waiting for the award cannot be held to be legally justified so as to complete the vesting. 18. In Laxmi Devi vs. State of Bihar and Ors. 2015 (10) SCC 241 considering Satendra Prasad Jain supra it was held that if the award was not made within stipulated period, the relief of setting aside of the acquisition proceedings can be granted with liberty to initiate fresh proceedings and pay compensation to the persons interested as per the existing law, by retaining possession of the land by the Government. The same bench of the Supreme Court in Soorajmull Nagarmull vs. State of Bihar & Ors. 2015 AIR (SC) 3400 again reiterated the above view that the Government is obliged to pass an award within two years and if the award is not so passed, it would render the acquisition void in view of Section 11-A of the Land Acquisition Act. In the said case, the acquisition proceedings were initiated under Section 4 and 6 of the Land Acquisition Act both dated 15.03.1981 by invoking the urgency provisions contained in Section 17 of the Act and Section 5-A was made inapplicable. The possession of the land was taken by the State on 20.08.1981. The award was published on 27.09.2006, the Court held that the acquisition proceedings have lapsed and accordingly directions were issued for initiation of fresh acquisition process. 19. In view of the aforesaid facts and circumstances and the legal position, the land acquisition proceedings pursuant to the declaration dated 18.10.2012 stands automatically lapsed for want of award under Section 11 of the Act within two years thereof. 20. In the last it has been contended that the possession of the land has been taken over and the road has been constructed. Therefore, petitioners are not entitled to any relief. 20. In the last it has been contended that the possession of the land has been taken over and the road has been constructed. Therefore, petitioners are not entitled to any relief. The respondents could not have taken possession of the land notified for acquisition before the pronouncement of the award unless the urgency provisions were brought into action which is not the situation herein and rather the petitioners have admitted that the possession of the land was taken over by the respondents in the year 2009. 21. Be that as it may, since the respondents have already utilised the land notified for acquisition for construction of the road, in the ends of justice, it is directed that respondents shall issue a fresh notification for acquisition of the said land as per the law prevalent today and to determine the compensation accordingly and pay the balance after adjusting compensation which has already been paid to the petitioner as per the tentative award. The said exercise shall be completed within a period of six months from today or to settle the claim of compensation by private negotiation, if possible. 22. The writ petition is allowed as above with no order as to costs.