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2021 DIGILAW 631 (JK)

Abdul Rahman Sofi v. State of J&K

2021-12-01

MOHD.AKRAM CHOWDHARY, PANKAJ MITHAL

body2021
ORDER : 1. Heard counsel for the parties. 2. The predecessor-in-interest of the petitioner was the proprietor in possession of the land measuring 13 marlas, 10 marlas covered by survey no.656 and 3 marlas by survey no.717, situate at Khudwani Tehsil Kulgam. In terms of the registered exchange deed dated 08.12.1987, he was given ownership rights as also possession of equivalent land measuring 13 marlas of survey no.1236/670 situate at Khudwani Tehsil and District Kulgam in lieu of his above referred proprietary land. The said transfer was duly attested vide mutation no.718 on the basis of the aforesaid registered exchange deed. 3. Sometime in the year 2006, the said 13 marlas of land given in ownership and possession of predecessor-in-interest of the petitioner of survey no.1236/670 was brought within the alignment for road widening and its possession was taken over without formally acquiring it and paying any compensation to the petitioner. 4. The petitioner, as such, filed OWP No.1285/2012 and his brother writ petition OWP No.1505/2011 seeking direction for payment of compensation for the aforesaid land. In response to the said writ petition reply was filed by the State respondents i.e. the State of Jammu & Kashmir through Revenue Department, the Divisional Commissioner, Kashmir at Srinagar and the Deputy Commissioner, Kulgam, stating that the said land vested with predecessor-in-interest of the petitioner by virtue of mutation no.718 attested pursuant to the execution of the deed of exchange between the officials of the Irrigation Department and the predecessor-in-interest of the petitioner. The said land, 10 marlas only, is falling within the alignment of the road and since it is the proprietary land of the petitioner, he is entitled to compensation under the provisions of the Land Acquisition Act for which process would be initiated shortly. 5. The aforesaid writ petition was disposed of vide order dated 26.08.2013 noting that the Executive Engineer, Irrigation Department, Kulgam, and the Tehsildar, Kulgam, who were directed to appear in person before the court have stated that 10 marlas of land aforesaid is in possession of the Irrigation Department and for the remaining 3 marlas of land of the petitioner, request has been made to the revenue authorities to locate and identify the same. A further direction was issued to the official respondents to take recourse to the land acquisition proceedings in accordance with law to formally acquire the land of the petitioner for road widening. A further direction was issued to the official respondents to take recourse to the land acquisition proceedings in accordance with law to formally acquire the land of the petitioner for road widening. 6. It is in the above background that the petitioner has filed the present writ petition claiming compensation of the aforesaid 13 marlas of land which has still not been paid to him and has not been formally acquired though it remains to be in possession of the State authorities i.e., the Irrigation Department/ PWD(R&B) Department. 7. The respondents through the Executive Engineer, PWD(R&B), have filed objections to the writ petition wherein in paragraph 5, it has been submitted that the Tehsildar, Kulgam, reported to the Assistant Commissioner Revenue on 15.10.2012 that the land of the petitioner coming in the alignment of the road was originally the State land which was given to the predecessor-in-interest of the petitioner by virtue of a registered exchange deed dated 08.12.1987 and that the said land stands mutated in his name vide mutation no.718. It is also stated therein that the Executive Engineer, R&B Division, Kulgam, has framed intent and other related documents for acquiring the land coming under the alignment of the said road which stands submitted to the Superintending Engineer, R&B Circle, Anantnag, vide letter dated 06.10.2017 for taking further action and for making arrangement of tentative funds of Rs. 05 lakhs. The said intent has been forwarded to the Chief Engineer R&B Circle, on 16.10.2017. 8. The objections aforesaid are completely silent as to whether subsequently, the land has been notified to be acquired or not and with regard to payment of compensation to the petitioner. The answering respondents have not taken any objection therein that the petitioner is not entitled to compensation or that the land does not belong to him or his predecessor-in-interest or that the deed of exchange is illegal in any manner. 9. One another set of objection has been filed by respondent No.5-Collector Land Acquisition/ Assistant Commissioner Kulgam. In the said objections, it has been stated that the exchange has no legal sanction as it has been made by the officials of the Irrigation Department who were not competent. The land given in exchange was recorded as Nandi Nehar and could not have been exchanged in lieu of any proprietary land. 10. In the said objections, it has been stated that the exchange has no legal sanction as it has been made by the officials of the Irrigation Department who were not competent. The land given in exchange was recorded as Nandi Nehar and could not have been exchanged in lieu of any proprietary land. 10. The Court in one of its orders dated 14.09.2021 records that the petitioner has produced the original of the exchange deed dated 08.12.1987 executed in the name of predecessor-in-interest of the petitioner on behalf of the Governor of Jammu & Kashmir through Zilladar, Irrigation Division, Kulgam. The said deed has been produced before us even during the course of final hearing. 11. It may be pertinent to note that the said exchange deed which is a registered document is in existence since 08.12.1987 and on its basis mutation was attested vide mutation no.718 in favour of predecessor-in-interest of the petitioner. Both the exchange deed and mutation entries remain intact and were never disputed or challenged by the respondents at any time except for taking objection now in the second round of litigation only by respondent no.5 that the same is invalid as the official who executed it was not competent and the land given in exchange was Nandi Nehar which could not have been exchanged. 12. In the above circumstances, the court was compelled to call for an affidavit of the Commissioner Secretary, Government of Public Works Department to clarify the position as to the nature of the land, whether the road has been constructed on the said land and whether the petitioner has been compensated and if not, the time frame within which the Government proposes to compensate and pay damages. 13. In response to the above order, Mr. Shailendra Kumar, Principle Secretary to the Government, PW(R&B) Department, has filed his personal affidavit stating that the letter of the Deputy Commissioner, Kulgam, addressed to the Divisional Commissioner, Kashmir, dated 16.10.2021 indicates that 13 marlas of land of survey no. 670 at Khudwani was recorded as the State land (Nandi Nehar) which has been mutated in the name of Sona and Khaliq, the predecessor in interest of the petitioner in exchange of their proprietary land under survey no.656 (10 Marlas) and 717 (3 Marlas) by virtue of the deed of exchange. 670 at Khudwani was recorded as the State land (Nandi Nehar) which has been mutated in the name of Sona and Khaliq, the predecessor in interest of the petitioner in exchange of their proprietary land under survey no.656 (10 Marlas) and 717 (3 Marlas) by virtue of the deed of exchange. The land offered in exchange has never been used for any public purpose and is vacant on spot even today. The exchange made by the Irrigation Department is prima facie invalid for want of competence rendering the claim of the petitioner for compensation as invalid. He also states that a road stands approved under the District Plan but no intent has been requisitioned and that a sum of Rs. 5 lakhs has been deposited with the Registrar Judicial on 20.09.2021. He further states that 13 Marlas (10 marlas under survey No.656 and 3 marlas under survey no.717) belonging to the petitioner as per the exchange deed made between his predecessor in interest and the Irrigation Department, was utilized for construction of the road. 14. It is in view of the above pleadings that we have to decide whether the petitioner is entitled to any compensation for 13 marlas of land which was given to his predecessor in interest in exchange vide registered exchange deed dated 08.12.1987. 15. There is no dispute to the fact that the predecessors in interest of the petitioner were recorded proprietors of 13 marlas of land, 10 marlas under survey no.656 and 3 marlas under 717 situate at Khudwani Tehsil and District Kulgam, and in exchange of the said land they were given ownership and possession of 13 marlas of land of survey no.1236/670 again situate at Khudwani Tehsil and District Kulgam. The first issue is whether the said exchange deed is valid in law. 16. Admittedly the aforesaid exchange deed is existing since 1987 and so are the mutation entries made on its basis but the respondents never took any step to dispute or challenge the exchange deed or even the attestation entries except for taking objection in this regard in this second round of litigation between the parties. 17. 16. Admittedly the aforesaid exchange deed is existing since 1987 and so are the mutation entries made on its basis but the respondents never took any step to dispute or challenge the exchange deed or even the attestation entries except for taking objection in this regard in this second round of litigation between the parties. 17. The objections filed on behalf of rest of the respondents except respondent no.5 in this writ petition in second round does not raise any plea that the said exchange deed is invalid for want of competence rather admits and states that the land of the petitioner is within the alignment of the road which was originally a State land which was given to his predecessor-in-interest by virtue of a registered deed attested by the Sub-Registrar, Kulgam, on 08.12.1987 on the basis of which the mutation also stand attested vide mutation no.718. It is only the respondent no.5-the Collector Land Acquisition/ Assistant Commissioner Revenue, Kulgam, who for the first time through his objections has raised the plea that the exchange is invalid and the land could not have been exchanged which fact has been reiterated by the Principal Secretary in his affidavit. 18. The stand so taken by the Principal Secretary and the respondent no.5 in this petition is in conflict with the position admitted by the State through Secretary Revenue Department, Divisional Commissioner, Kashmir and the Deputy Commissioner, Kulgam, as per their stand taken by them in their objections filed in response to the earlier writ petition OWP No.1285/2012. The relevant part of the aforesaid objections as contained in paragraph 12 thereof reads as under: “12……….As regard road, land measuring 10 marlas under Survey No.670 has come within the alignment of the road besides land measuring 13 Marlas under Survey No.656 (10 Marlas) & Survey No.717 (3 Marlas) as reported by Tehsildar concerned. The said land has vested in ownership rights in the father of petitioner and another by virtue of Mutation No.718 attested pursuant to the execution of deed of exchange between Irrigation Department officials and father of the petitioner with other persons. As such, said land having come within the alignment of the road (10 marlas) is in fact proprietary land now entitled to be compensated under the provisions of Land Acquisition Act.” 19. As such, said land having come within the alignment of the road (10 marlas) is in fact proprietary land now entitled to be compensated under the provisions of Land Acquisition Act.” 19. The objections further state that the petitioner is entitled to be compensated for 10 marlas of land having come within the alignment of the road for which the process would be initiated under the provisions of the Land Acquisition Act. 20. In view of the stand so taken by the aforesaid State authorities in writing before the Court, it is an admitted position that petitioner is entitled to compensation for at least 10 Marlas of his land which was given to his predecessor in interest in exchange meaning thereby that the deed of exchange is acceptable to the State respondents of which even reference has been made in the objections. Thus, the answering respondents cannot at this stage be permitted to take a summersault and to dispute the exchange deed. 21. The order dated 26.08.2013 deciding the above referred writ petition refers to the statement of the Executive Engineer, Irrigation Division, Kulgam, and Tehsildar Kulgam, in context with the exchange deed that 10 Marlas of land is in possession of the Irrigation Department whereas 3 marlas of the land is to be identified by the revenue authorities. This order also establishes that the exchange deed was never disputed by the State respondents at any stage till the decision of the above writ petition. 22. The above documents amply establishes that the proprietary land of the petitioner was exchanged for the above land which has been approved for use of road widening and, as such, the petitioner is entitled to be compensated adequately for the same. 23. 22. The above documents amply establishes that the proprietary land of the petitioner was exchanged for the above land which has been approved for use of road widening and, as such, the petitioner is entitled to be compensated adequately for the same. 23. The issue whether the said land was rightly offered in lieu of the proprietary land of the petitioner pails into insignificance once in the previous round of litigation the State authorities have admitted that the land had vested in the ownership of the predecessor in interest of the petitioner by virtue of the mutation no.718 attested on the basis of the exchange deed without disputing the correctness and validity of the said exchange deed more particularly in view of their stand that the petitioner is entitled to compensation for 10 marlas of land which has come in the alignment of the road on which residential house and a shopping complex has been raised by the petitioner. 24. There is another angle of looking into the above dispute. Even if, it is assumed that the aforesaid exchange deed is invalid as its validity can be set up at any stage, the petitioner would become entitled to proprietary right in his original land i.e., 13 marlas of land of survey no.656 and 717, which admittedly stand in occupation of the Irrigation Department. 25. In this way, petitioner has been deprived not only of the land received in exchange but of his original land as well. In view of such deprivation from the land, the petitioner is entitled to be compensated as right to property is a constitutional right which has been recognized akin to a fundamental right and more importantly as a basic human right. 26. The compensation for the land is payable by the State authorities and it is immaterial as to which department ultimately has to bear the burden either the Irrigation Department or the PWD R&B Department. 27. In view of the aforesaid facts and circumstances, we issue a writ in the nature of mandamus commanding the State authorities i.e., the Chief Secretary to get the compensation of the aforesaid land duly assessed by the Collector Land Acquisition/ Assistant Commissioner Revenue, Kulgam, within a period of two months from the date a copy of this order is produced before him and to ensure its payment within a period of one month thereafter. In the event the petitioner is not satisfied by the compensation so assessed, it will be open for him to withdraw it under protest and to seek a reference before the Civil/ District Court in the same manner as a reference is made under the provisions of the Land Acquisition Act as we cannot allow the assessment of the Collector to be final and conclusive unless it is scrutinized by some competent authority. The decision of the Civil/ District Court in this regard would be final and binding and would not be subject to any further appeal. The Chief Secretary will subsequently sort out the inter-departmental matter or the dispute inter-se the PWD R&B Department and the Irrigation Department so as to fix the liability of one of the departments. Out of the amount of Rs.5 lakhs said to have been deposited with the Registry of this Court adequate amount as may be determined by the Collector shall be paid and released in favour of the petitioner once the compensation is determined by the Collector/ Assistant Commissioner and the excess amount, if any, be refunded to the concerned department. 28. The writ petition is, accordingly, allowed as aforesaid with no order as to costs but before parting we sound a note of caution to the administration on the manner of taking possession and utilizing the private land of the citizens without acquiring and paying any compensation. The Chief Secretary is under an obligation to sensitize the Government departments in this regard.