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2022 DIGILAW 713 (JK)

Abdul Rashid Mir v. U. T. of J&k

2022-12-15

MOKSHA KHAJURIA KAZMI, SANJEEV KUMAR

body2022
JUDGMENT Sanjeev Kumar, J. - The petitioners claim to be the owner in possession of land measuring 3 Kanals and 11 Marlas, falling under Survey No. 118, 121 and 122, situated at Chaimulla Qazigund (the subject land). On 12th July 2006, the respondent no. 3, issued a notification under Section 4(1) under the provisions of Jammu and Kashmir Land Acquisition Act, Svt. 1990 ['the Act of 1990']. The land which was notified for acquisition included land belonging to the petitioners measuring 13 Kanals and 16 Marlas falling under Survey Nos. 118, 121 and 122 situated at Chaimulla Qazigund. It is submitted that the respondents in particular Collector Land Acquisition, Anantnag, after issuance of notification 4(1) and complying with rest of the legal formalities prescribed under the Act of 1990, passed a final award in favour of petitioners qua the land measuring 10 Kanals and 5 Marlas only and did not take possession of the rest of the land i.e., subject land. The subject land thus remained in possession of the petitioners. The short grievance projected by the petitioners is that since the respondents do not require subject land for the public purpose for which Section 4(1) notification was issued by the Collector Land Acquisition, Anantnag, as such, respondent should formally de-notify the subject land so that the petitioners are in a position to put the said land to a profitable use. It is in this backdrop the petitioners inter alia pray for quashing of Section 4(1) notification and also seeking a direction to the respondents to de-notify the subject land which was part of acquisition notification issued under Section 4(1) of the Act of 1990. The petitioners claim that they have received compensation only in respect of land measuring 10 Kanals and 5 Marlas out of the total land measuring 13 Kanals and 16 Marlas notified for acquisition under Section 4(1) notification of the Act of 1990. 2. On being put on notice, the respondents 1 to 5 have filed their objections. It is submitted that the entire land belonging to the petitioners and others, including 3 Kanals and 16 Marlas (the subject land) was notified under Section 4(1) of the Act of 1990 on 17th May, 2007. After completing all requisite formalities, a final award was passed by the Collector Land Acquisition, Anantnag, vide his order No. 83-86/LA/Ang dated 23rd April, 2011. After completing all requisite formalities, a final award was passed by the Collector Land Acquisition, Anantnag, vide his order No. 83-86/LA/Ang dated 23rd April, 2011. It is submitted that the final award pertains to acquisition of total land measuring 161 Kanals and 12 Marlas including petitioner's land measuring 13 Kanals and 16 Marlas. 3. The compensation has been assessed and paid to the interested persons. The petitioners have also received a sum of Rs. 49, 56,497/-(Forty-nine Lac, Fifty-six Thousand and Five Hundred Ninety Seven) out of the total compensation payable to the petitioners amounting to Rs. 79, 35,000/- (Seventy-Nine Lac and Thirty-Five Thousand). It is further submitted that the rest of the amount was offered to the petitioners, but they are deliberately avoiding to receive the same with an intention to grab the land measuring 3 Kanals 11 Marlas, which the petitioners intend to put to commercial use. 4. Having heard learned counsel for the parties and perused the material on record, we find that there is no serious dispute between the parties on the facts. Indisputably, land measuring 161 Kanals and 12 Marlas was notified for acquisition vide notification dated 17th May, 2007, read with corrigendum dated 23rd April, 2011, issued under Section 4(1) of the Act of 1990, issued by the Collector Land Acquisition, Anantnag. The land of the petitioners measuring 13 Kanals and 16 Marlas falling in different Khasra numbers, the details whereof is given above, was also part of acquisition notified in terms of Section 4(1) of the notification of the Act of 1990. Admittedly, the petitioners did not file any objections to the notification issued under Section 4(1) of the Act of 1990, and the subsequent proceedings for acquisition taken thereupon. The Collector Land Acquisition, Anantnag, after completing all the requisite formalities under the Act of 1990, first issued a draft award which, after seeking the approval of rates from the Competent Authority, was finalized, and a final award in this regard was issued on 23rd April 2011. From reading of the award and in view of the categoric stand taken by the respondents, it is evident that entire 13 Kanals and 16 Marlas of land belonging to the petitioners has been acquired and compensation assessed to the tune of Rs. 79, 35000/- (Seventy-Nine Lac and Thirty-Five Thousand). The petitioners have even received an amount of Rs. From reading of the award and in view of the categoric stand taken by the respondents, it is evident that entire 13 Kanals and 16 Marlas of land belonging to the petitioners has been acquired and compensation assessed to the tune of Rs. 79, 35000/- (Seventy-Nine Lac and Thirty-Five Thousand). The petitioners have even received an amount of Rs. 49, 56,497/- (Forty-nine Lac, Fifty-six Thousand and Five Hundred Ninety Seven) out of the total compensation. The plea of the respondents is that the rest of the amount is not being collected by the petitioners, whereas it is alleged by the petitioners that no such amount was ever offered to them, nor the same has been deposited in the competent court of law. 5. The plea of the learned counsel of the petitioners that the respondents have taken over only 10 Kanals and 5 Marlas out of the total acquired land and, therefore, they must be directed to de notify the balance 3 Kanals and 11 Marlas (the subject land) which the respondents do not require for any public purpose, cannot be accepted. It is so because not only the entire land of the petitioners including the subject land, has been acquired, but the compensation payable too, has been assessed. The final award was issued by the Collector Land Acquisition, Anantnag, on 23rd April , 2011. (a) In view of the categoric stand of the respondents, that not only they acquire subject land, but the same has been validly acquired by them after following the due process as prescribed under the Act of 1990. It is the allegation of the respondents that despite being aware that the subject land stands acquired by the respondents, the petitioners are occupying the subject land and have even made attempts to raise a commercial structure thereupon. We have gone through the entire writ petition and the clear stand taken by the respondents, and we are convinced that the petitioners have, unauthorizedly and illegally, occupying the subject land which stands acquired by the Collector Land Acquisition, Anantnag, for construction of National Highway. The petitioners have not filed any objections to Section 4(1) notification of the Act of 1990, nor have challenged subsequent process of acquisition and, therefore, cannot be permitted to contend that the subject land under their occupation, though acquired, is not required by respondents for any public purpose, and, therefore, should be de-notified. The petitioners have not filed any objections to Section 4(1) notification of the Act of 1990, nor have challenged subsequent process of acquisition and, therefore, cannot be permitted to contend that the subject land under their occupation, though acquired, is not required by respondents for any public purpose, and, therefore, should be de-notified. The possession of petitioners on the subject land since issuance of Section 6 notification under the 1990 Act, or at least from the date of passing of the final award is totally illegal and cannot be countenanced. We, however, are not clear as to whether, after the passing of the final award by the Collector Land Acquisition, Anantnag, on 23rd April, 2011, the notice of award was given to the petitioners; the balance amount of compensation was ever offered; whether, in the wake of refusal, if any, by the petitioners to receive the compensation, the amount has been deposited in the district court concerned. The pleadings of both sides are deficient, and, therefore, we are not in a position to give our findings on these aspects. 6. Be that as it may, in the given facts and circumstances and having regard to rival contentions, we dispose of this writ petition by providing as under:- i) That the Collector Land Acquisition, Anantnag, shall ensure that the balance amount of compensation in respect of land of the petitioners that has been acquired is paid within a period of six weeks from the date a copy of this judgment is served upon the Collector Land Acquisition, Anantnag. ii) If the balance amount has been deposited by the respondents with the Principal District Judge, Anantnag, the same shall be released in favour of the petitioners subject to proper verification and after receiving a certificate of apportionment in this regard from the Collector Land Acquisition, Anantnag. iii) The petitioners shall handover the possession of the subject land to the respondents within the aforesaid period after removing the structure, if any, raised thereupon, failing which respondents shall be free to demolish the structures, if any, existing on the subject land and take over the possession from the petitioners. iii) The petitioners shall handover the possession of the subject land to the respondents within the aforesaid period after removing the structure, if any, raised thereupon, failing which respondents shall be free to demolish the structures, if any, existing on the subject land and take over the possession from the petitioners. iv) That since the subject land has all along remained in possession of petitioners, as such, the petitioners shall not be entitled to any interest on the balance amount of compensation payable to the petitioners except the interest, if any, earned by this amount if deposited in some bank by the Collector Land Acquisition, Anantnag, or the court as the case may be. 7. Disposed of.