Ghulam Mohi Ud Din Ahanger And Others vs State Of J&K; And Others on 20 March, 2018

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Jammu & Kashmir High Court - Srinagar Bench

Ghulam Mohi Ud Din Ahanger And Others vs State Of J&K; And Others on 20 March, 2018

HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
...
OWP no.152/2012
MP no.223/2012
Date of order: 20 .03.2018
Ghulam Mohi ud din Ahanger and others
v.
State of J&K and others
Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge
Appearing Counsel:
For Petitioner(s): Mr M. I. Qadiri, Sr. Advocate
For Respondent(s): Mr Q.R.Shamas, Dy. AG
Mr Moomen Khan, Advocate
Whether approved for reporting? Yes

1. The fascicule of facts, indispensable and germane to comprehend the
backdrop of the writ petition, based whereupon the case has been set in
motion and the present legal process has been made, has its genesis and
origin to the envisioning of widening of Haft Chinar Indira Gandhi
Road, Srinagar. It was in corollary thereof that the Public Works
(R&B) Department through Executive Engineer, Construction
Division, 3rd Ganderbal, vide indent nos.15238-15297 dated
10.09.2004, requisitioned the acquisition of the land measuring 02
Kanals and 237.169 square feet, comprising of Khasra nos.1707/830
min, 1742/830 min, 828 min, 829 min, 830 min and the structures
bearing Engineering Marks nos.1 to 18, situate in Estate Nursing Garh
Tehsil and District Srinagar. The Notification under Section 4 of the
State Land Acquisition Act, was issued vide no.C/CRP/LA/766-79
dated 14.09.2004 and published in the dailies/newspapers as well as
through Tehsildar, Srinagar, for calling the objections from the
interested persons. The acquisition case was taken up by the High
Level Committee (HLC) headed by the Divisional Commissioner,

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Kashmir, in which out of 18 number of structures notified, the owners
of 14 number of structures accepted the HLC decision and surrendered
the possession to the indenting department. However, the owners of the
four number of the structures viz. 2, 4, 13 and 14 did not surrender the
possession to the indenting department. Given the objection of the
owners and the decision of the HLC, the Collector, Circular Road
Project, Srinagar (respondent no.6) proceeded to acquire the
aforementioned structures and the land under the compulsory actions
mode. The matter was taken up with the Financial Commissioner
(Revenue) J&K, vide no.C/CRP/1586-92 dated 17.03.2008, for
issuance of the notification/declaration under Section 6,7 and 17 of the
Land Acquisition Act. The Government issued the Notification no.323
of 2008, under Section 6, 7 and 17 of the Land Acquisition Act, with a
direction to finalise the case immediately and take over the possession
of the land. Notification under Section 9 & 9A of the Land Acquisition
Act, was issued by the respondent no.6, vide no.C/ CRP / LA /532/39
dated 03.11.2008 to the interested persons as well as the concerned
indenting department, to file the objections qua the rate, measurement
claims and their interests etcetera, within 15 days. The objections were
submitted by the owners of structure nos.2, 4, 13 and 14. The intending
department, vide communications bearing no.EE/1670-72 dated
20.04.2009 and EE/1673-75 dated 20.04.2009, requested for de-
notification of the area of the land arising because of the change of the
road alignment. The respondent no.6, by the Notification no.13/DCS
of 2010 dated 11.01.2010, was authorised to take the order for the
acquisition of the land declared as requirement for the public purpose
under Section 6 of the Act. The land acquisition cases of Haft Chinar
Indira Gandhi Road, Srinagar, vis-à-vis the land/ structure bearing nos.

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2, 4, 13 and 14, was processed afresh right from issuing of the
notification under Section 4 to Section 9 & 9A of the Act. The land
structure owners again put forth their objections for the payment of the
compensation as per the market rate. The objections made by the
structure owners were examined by the respondent no.6 and he
declared the said objections not tangible. In terms of the Final Award
bearing endorsement no.C/CRP/632-40 dated 10.12.2010, the
respondent no.6 assessed the compensation of Rs.10,81,591/- for the
land measuring 2179.21 square feet; Rs.31,94,400/- as the cost of the
four number of structures; and Rs.1,62,237/- as Jabirana @ 15%. In
total Rs.44,38,228 has been awarded as the compensation by the
respondent no.6. It is this Award, of which the petitioners are aggrieved
and have knocked at the portals of this Court with the writ petition on
hand.
2. The petitioners 1 to 6 claim to be the owners of the land situate at Haft
Chinar (Nursingh Garh), Indira Gandhi Road, Srinagar, measuring 01
Marla 72 square feet, together with a three storeyed structure with eight
rooms and attic having one shop in the ground floor, in which they were
running a restaurant for earning their livelihood. The petitioners 7 to
15 claim that they are owners of the land measuring 02 Marla 176
square feet together with two three storeyed structures with attic
comprising of 12 rooms and two shops in the ground floor of the
building, situate at Haft Chinar (Nursingh Garh) Indira Gandhi Road,
Srinagar. The structures were located on the front of the Indira Gandhi
Road, which had become a commercial hub in the area. The petitioners,
it is averred, were residing in the upper portions of the structures while
conducting the business in the ground floor. For widening of the Indira
Gandhi Road at Haft Chinar (Nursingh Garh) Srinagar, the process of

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the acquisition was initiated by the respondent no.6, vide Notification
no.C / CRP/LA/766-79 dated 14.09.2004, issued under subsection (1)
of Section 4 of the State Land Acquisition Act, notifying, inter alia, the
petitioners' landed property as also structures standing thereupon.
Notification no.323 of 2008 under Section 6, 7, & 17 of the Land
Acquisition Act, was issued with a direction to finalise the case for
taking over the possession of the land. This was followed by the Notice
bearing endorsement no.DIPK-7074 dated 04.11.2008, issued by the
respondent no.6, in terms of Section 9 & 9A of the Land Acquisition
Act, intimating interested persons to attend the office of the respondent
no.6 to state the nature of their respective interests in the land and the
amount and particulars of their claims to compensation for such
interests.
3. It is the next averment of the petitioners that a High Level Committee
meetings were held on 15.03.2006 and 03.04.2006. In respect of the
structure no.13 and the land underneath thereto, pertaining to the
petitioners 1 to 6, it was settled that a package deal for a total
consideration of Rs.6.079 lakhs including cost of land as per
requirement of the Department would be paid; one number of the SDA
plot at Bemina was promised to be allotted subject to the availability
of the plots and in lieu of the remaining two number of the plots as
recommended by the Task Force Teach, the cash incentive @ Rs. 5.00
lakhs each was decided to be paid to the dislocated family; and one
number of the shop was also promised to be allotted to the shopkeeper
likely to get dislocated and the dismantled material would go to the
party. Qua the structure no.14 and the land underneath, the package
offered by the High Level Committee was Rs.13.988 lakh including
cost of land as per the requirements of the department; one SDA plot

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at Bemina was also promised to be allotted subject to the availability
of the plots and in lieu of the remaining two number of the plots, instead
of the five number as recommended by the Task Force Team, the cash
incentive @ Rs.2.50 lakhs each was promised to be paid to the
dislocated family. The two shops were also promised to be allotted to
the shopkeepers, likely to get dislocated and the dismantled material
would go to the party. The package offered, according to the
petitioners, was not only inadequate but amounted to the gross injustice
to them because the four families were residing in the structure no.13,
and the five families were residing in the structure no.14 & 14A, and
three shops in the ground floor in all the three structures, in which the
business was being run by the petitioners. It is stated that the amount
of the compensation was also far below the prevalent market rate,
which was more than Rs.70.00 lakhs per Kanal at the relevant time and
in the package the value of the land was fixed @ Rs.27.00 lakhs per
Kanal only. It is averred that the Tehsildar has reported the market rate
at Rs.50.00 lakh per Kanal, but the same has been ignored when the
package was offered to the petitioners. The High Level Committee, it
is claimed, was also represented for rehabilitating the petitioners on the
fundaments of the Government Order no.254-HD of 1977 dated
08.11.1977. The petitioners maintain that the petitioners 1 to 6, owning
the structure no.13, are entitled to the three plots and the petitioners 7
to 15, the owners of the structure no.14 and 14A, are also entitled to
the three plots of the reasonable size in and around Srinagar where they
can rehabilitate themselves. However, during the acquisition process,
the intending department vide communication no.CD/III/23957-61
dated 01.08.2008, issued by the Executive Engineer (R&B)
Construction Division III, asked for modification of the notice dated

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14.09.2004, and thereupon the part of the land owned by the petitioners
was denotified and in terms of the communication, the part of the area
owned by the petitioners has been denotified and only land measuring
344.25 square feet belonging to the petitioners 1 to 6 and the land
measuring 720 square feet, belonging to the remaining petitioners
comprised of structures 14 and 14A, remained subject matter of
acquisition. No fresh notification under Section 4 of the Land
Acquisition Act was issued and the aforesaid notifications were made
in continuance of the earlier notification issued in the year 2004. The
Deputy Commissioner thereafter issued the Notification no.13/DCS of
2010 dated 11.01.2010 declaring that the land measuring 08 Marlas 03
square feet, was required for the public purpose and the respondent
no.6 was directed under Section 7 of the Act to take order for
acquisition of the aforesaid land. The respondent no.6, vide Notice
no.C/CRP/2263-70 dated 18.01.2010, intimated that the land
measuring 08 Marlas 03 square feet was about to be taken for the public
purposes, namely, for widening of Haft Chinar Indira Gandhi Road,
Srinagar, and all the persons interested in the said land/property were
called upon to attend personally or by agent his office on 30.01.2010
to state the nature of their respective interests in the land and the
amount and the particulars of their claims to compensation for such
interests. The petitioners claim that the notification, apart from being
an exercise in nullity, also falls short of the statutory period of 15 days
to be provided to the interested persons for submitting their claims and
objections concerning the measurement and the claim of the
compensation etcetera. The respondent no.6 has finally passed the
Award on 10.12.2010, which, as maintained by the petitioners, has
been passed beyond the prescribed statutory period of two years, when

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by force of the Statute the proceedings had lapsed. The respondents
have after 10.12.2010 demolished the structures of the petitioners on
15.01.2012, by use of force, when the courts were on vacation. No
amount of the compensation has been fixed for the loss of the business
and the loss of the residence, which are two essential components for
human survival - right to residence and right to business being
fundamental rights. The petitioners, on the edifice of the case set up,
exhort the following relief:
i. Writ of certiorari, quashing the award dated 10.12.2010 bearing
endorsement no.C/CRP/632-40 issued by the Collector,
Circular Road Project, Srinagar.
ii. Writ of certiorari, quashing the notification issued by the
Deputy Commissioner, Srinagar, under Section 6 of the Land
Acquisition Act, bearing endorsement no.258-64/LAC/187
dated 11.01.2012, together with the notice purportedly issued
under Section 9 and 9A as the same are void ab initio.
iii. Writ of mandamus, commanding the respondents to provide the
suitable house sites numbering six to the petitioners for
constructing the residential house and three shop sites, for
constructing the shops or shop structures, available in the
vicinity of the structures demolished by the respondents, to
enable the petitioners to start their business.
iv. Writ of mandamus, commanding the respondents to pay the
amount of the damages for destroying the structures and the
household goods, which structures and the household goods at
the market value would cost more than Rs.1.00 crore.

4. The Collector - respondent no.6, in his Reply, insists that the impugned
award has been passed by the competent authority with complete
application of mind to the facts and circumstances of the case and also

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in accordance with the law and the rules governing the field. An indent
was received from the Executive Engineer, Construction Division, 3 rd
Ganderbal, vide no.15238-15297 dated 10.09.2004, for acquisition of
the land for road widening of Indira Gandhi Road, followed by
Notification under Section 4(1) of the land Acquisition Act bearing
no.C/CRP/LA/766-79 dated 14.09.2004. As per the directions of the
High Level Committee, the case was processed for the compulsory
acquisition and Notification under Section 6&7 of the Act was
approved by the District Collector vide no.C/CRP/LA/832-39 and
Notification under Section 17 of the Act and after considering the
objections under Section 9 and 9A, the tentative award was approved
by the District Collector vide no.DCS/ LAC/1870/312-14 dated
14.06.2010 and the final award in favour of the said structure holders,
was announced by the respondent no.6, vide no.C/CRP/632-40 dated
10.12.2010 for an amount of Rs.16,85,790/- including 15% Jabirana
under the Land Acquisition Act. It is claimed that the petitioners are
basically tenants and since there is no law as on date to rehabilitate such
a person, only compensation has to be paid to the owner for the land
and the structure with 15% Jabirana as per Land Acquisition, which
has already been done in the present case. Since there is no scope left
with the Collector, the claim of the petitioners does not merit any
consideration and it is only the High Level Committee which is
empowered to benefit any rehabilitation package, which has not been
accepted by the landlord of the petitioners.
5. The respondents 1 to 3&6 have taken similar assertions in their Reply
which have been taken by the respondent no.6.
6. I have heard the learned counsel for the parties and considered the
matter.

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7. The learned counsel for the petitioner has vivaciously argued that the
notification under section 4(1) of the Land Acquisition Act was issued
more than 11 years back and the Collector woke up from deem slumber
in 2008, i.e. more than four years after publication of aforesaid
notification, and issued a notification under sections 6, 7 and 17 of the
Land Acquisition Act on 16.10.2008. Although the provisions of
Section 17-A of the Act were sought to be invoked, yet the same were
not followed and pursued at any point of the time during the entire
proceedings conducted by the Collector. The Award, according to the
learned counsel, has been passed on 10.12.2010, i.e. two years after the
publication of the notification issued under Section 6 of the Act; the
entire proceedings have, therefore, lapsed and the award passed beyond
the statutory period prescribed is void ab inito. The learned counsel
stated that in a similar case, where land in old Srinagar city was taken
over for construction of circular road, this Court had an occasion to
decide a similar case. He entirely relies upon the judgement dated 9th
December 2013, rendered by a Bench of this Court in OWP no.47/2013
titled Mohd Ashraf Sofi & ors v. State of J&K & ors, which is said to
have been complied with by the Government and the benefits of the
allotment of plots of the land for the residential and other purposes have
been provided to the land owners. To bolster the case set up by the
petitioners as also the arguments advanced by him, the learned counsel
for the petitioners refers to and relies upon Mohan and anr. v. Mohan
and anr (2007) 9 SCC 431; J&K Housing Board and another v.
Kunwar Sanjay Krishan Kaul and others (2011) 10 SCC 714;
Mulchand Khanumal Khatri v. State of Gujarat & ors AIR 2012 SC
2525.

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8. By way of contrast, the learned counsel for the respondents argued that
the notification under Section 4(1) of the Land Acquisition Act was
issued on 14.09.2004, notification under Sections 6,7, 17A of the act
was issued on 16.10.2008 and notification under Sections 9 & 9(A) of
the Act was issued on 04.11.2008. The notice qua denotification of the
part of the land was issued on 04.11.2008 and fresh notification under
section 6&7 of the Act was issued on 11.01.2010. The learned counsel
for the respondents also avers that the date of the publication of the
notification under Section 13 of the Act, i.e. 17.02.2010, is important
as in terms of Section 23 of the Act read with Rule 46 of the Land
Acquisition Rules for Public Purposes, it is a date material for
determining the compensation. He also stated that in the objections
filed by the petitioners in terms of notification under section 9 & 9A of
the Act on 30.01.2010, the petitioners did not object to the acquisition
but made a demand for being compensated fairly and according to the
current rates. The tentative award was passed on 18.05.2010 and the
final award was passed on 10.12.2010. The property was taken over
and demolition took place on 7th January 2012 whereas the writ petition
was filed in February 2012, and the amount was deposited under
Section 32 of the act on 27.02.2012, which has been withdrawn by the
petitioners during the pendency of the writ petition on hand. Learned
counsel while referring to the judgement rendered by the Supreme
Court in Navnath v. State of Maharashtra in 2008 (0) Supreme (Mah)
693, insists that the violation at the intermediary stages of the
acquisition cannot be challenged after the award is passed. He also
insists that the writ petition has been filed after a long delay and after
passing of the award and taking over of the possession. To buttress his
arguments, he refers to Shah Hyder Beigh's case reported in 2000 (6)

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SCC 48 as also the judgement rendered in Chinab Textiles's case
reported in SLJ 2016 (II) 620.
9. The law concerning the acquisition of the land in the State of J&K
contained in the State Land Acquisition Regulation, 1903, was repealed
by the State Land Acquisition Act No.X of 1990. The Act called as
"The State Land Acquisition Act, 1990 (1934 A.D.)" was sanctioned
by His Highness the Maharaja Bahadur vide Prime Minister's
endorsement no.G.B.387, dated 29th January, 1934 and published in the
Government Gazette dated 28th Baisakh, 1991. The Act extends to the
whole of the territories of the J&K State. Section 3(a) of the Act
envisages that the expression "land" includes benefits to arise out of
land, and things attached to the earth or permanently fastened to
anything attached to the earth. The "person interested", as Subsection
(b) of Section 3 of the Act says, includes all persons claiming an
interest in compensation to be made on account of the acquisition of
land under this Act; and a person shall be deemed to be interested in
land if he is interested in an easement affecting the land. When it
appears to the Government that a particular piece of land in any locality
is required or likely to be required for any public purpose, a notification
to the said effect is to be issued under Section 4 of the Act. The
Collector, as envisaged under Section 4 of the Act, is required to notify
through a public notice to be affixed at the convenient places in the
locality, where the land is needed or is likely to be needed for any
public purpose and shall cause it to be known by beat of the drum and
through the local Panchayats and Patwaries. The Collector is also
required to notify the same in the Government Gazette. The Collector
is under bounden duty to notify the intention as to need of the land in
the two daily newspapers having the largest circulation in the said

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locality of which, at least, one shall be in the regional language. If any
person, interested in any land, notified under Section 4(1) of the Act,
objects the acquisition of the land, he may object it in writing to the
Collector within fifteen days after issuance of the notification. The
Collector is to afford an opportunity of being heard to the objector in
person or his pleader or a person authorised by him. The Collector,
after hearing all such objections and after making such further inquiry,
if any, as he thinks necessary, shall submit the case for the decision of
the Government together with the record of the proceedings held by
him and a report containing his recommendations on the objections.
The decision of the Government, as envisioned in subsection (2) of
Section 5-A of the Act, shall be final.
10.When the Government is satisfied after considering the report, if any,
made under subsection (2) of Section 5-A of the Act, that any particular
land is needed for the public purpose, a declaration, as envisaged by
Section 6 of the Act, shall be made to that effect under the signature of
the Revenue Minister or of some officer duly authorised in this behalf.
However, no such declaration shall be made unless the compensation
to be awarded for such property is to be paid wholly or partly out of the
public revenues or some fund controlled or managed by a local
authority. The declaration, as stipulated by subsection (2) of Section 6
of the Act, is to be published in the official Gazette, and shall indicate
the District or other territorial division in which the land is situated, the
purpose for which it is needed, its approximate areas and where a plan
shall have been made of the land, the place where such plan may be
inspected. Whenever any land shall have been so declared to be needed
for a public purpose, the Revenue Minister or some officer duly
authorised by the Government in this behalf, in terms of Section 7 of

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the Act, shall direct the Collector to take order for the acquisition of
the land. The public notice, under subsection (1) of Section 9 of the
Act, shall be caused to be given by the Collector at the convenient
places on or near the land to be taken, informing that the Government
intends to take the possession of the land and that the claims to
compensation from all the interested persons in such land, be made to
him. Such notice shall enumerate particulars of the land so needed and
the persons interested in the land shall require to appear in person or
by agent before the Collector at a time and place mentioned in the
notice and such time should not be earlier than fifteen days after
publication of the notice. The persons, to appear before the Collector,
have to state the nature of their respective interests in the land and the
amount and the particulars of their claim to compensation for such
interests and their objections, if any, to the measurement. Such
statements should be made in writing and signed by the party or his
agent. A notice shall also be served by the Collector on the occupier, if
any, of such land and on all such persons known or believed to be
interested therein, or to be entitled to act for persons so interested, as
reside, or have agents authorised to receive service on their behalf,
within the revenue district in which the land is situate.
11.On the day so fixed or on any other day to which the enquiry has been
adjourned, the Collector shall proceed to enquire into the objections, if
any, which any person has stated pursuant to a notice given under
Section 9 of the Act to the measurement made under Section 8 of the
Act and into the value of the land at the date of the publication of the
notification under subsection (1) of Section 4 of the Act and into the
respective interest the persons claiming the compensation. Where the
amount of compensation tentatively assessed under subsection (1) of

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Section 11 of the Act exceeds the amount specified by the Government
by notification, the Collector, in terms of subsection (2) of Section 11
of the Act, shall refer the record of the case along with the statement of
the tentative assessment of compensation for approval of the Revenue
Minister or an officer specially empowered by him in this behalf. The
Revenue Minister or an officer empowered by him, in a case referred
by the Collector under subsection (2) of the Section 11 of the Act, shall,
after considering the report of the Collector and after making such
further enquiry as may be necessary, determine the proper value of the
property to be acquired and communicate it to the Collector and the
value so determined shall form the basis of compensation to be allowed
for the land. Under subsection (4) of Section 11 of the Act, the
Collector shall thereupon make an award under his hand of the true
area of the land; the compensation payable for the land; and the
apportionment of the said compensation among all the persons known
or believed to be interested in the land, of whom or whose claims, he
has information, whether or not they have respectively appeared before
him.
12.The State Land Acquisition Act, Samvat, 1990, was amended by virtue
of the State Land Acquisition (Amendment) Act, 1997, which received
the assent of the Governor on 9th April 1997, and published in the
Government Gazette on 10th April 1997. In terms of the said
amendment, clause (b) of subsection (1) of Section 4 of the Act has
been omitted from the Statute and Section 11-B has been inserted in the
Principal Act. Section 11-B envisions that the Collector shall make an
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 that
period, the entire proceedings for the acquisition of the land shall lapse.

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The Land Acquisition Act prior to omission of clause (b) from section
4(i) of the Act had visualised three different modes of the publication
of the notification under Section 4 of the Act including its publication
in Government Gazette. As a consequence of the deletion of clause (b)
of section 4(i), the publication of the notification can be done through
(a) a public notice to be fixed at the convenient place in the said locality
or to be caused it to known by beat of drum and through the local
panahcyats and patwaris; and (b) the publication in the two daily
newspapers having largest circulation in the regional language. The
deletion of clause (b) requiring the publication in Government Gazette
aims at streamlining the procedure and to ensure the expeditious
disposal of the cases at initial stage. The Act, given the amendment and
insertion of Section 11-B, visualises issuance of the award within a
period of two years in contradistinction to the earlier procedure where
no specified time limit was indicated. The amendment, therefore, has
introduced greater regularity and time specificity within which the
award has to be finalised. The implication of this amendment is that
where the land acquisition proceedings cannot be completed within the
stipulated timeframe of two years, it would entail de novo proceedings
thereby implying fresh determination and assessment of the amount of
the compensation with reference to the parameters as indicated in
Section 23 of the Act. Thus, the amendment in the Land Acquisition
Act not only has indicated the timeframe but it has also made it
incumbent on the Collectors to ensure fetish adherence to the
timeframe, failing which it would induce serious financial implications
by way of revision of award with reference to the market prices
prevalent at the date of the publication of the declaration. Resort to the
de novo proceedings, in terms of the Circular no.FC-LS/LA-753/96

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dated 2nd February 1998, shall be construed adversely against the
Collector concerned, who shall have to explain the reasons for the same
and also could be held responsible for the additional financial burden
accruing on this account on the State exchequer. Time factor is the most
critical element of total land acquisition process which would require
circumspect handling at the level of the Collector. They have to
proceed in a systematic and in a proper manner in order to ensure that
under no circumstances the time schedule as stipulated in the act is
violated. The Collectors, therefore, were enjoined to undertake a proper
examination of all the pending land acquisition cases and also to
institute mechanism for fresh cases so that the paramount parameter of
time schedule as stipulated under the amended provision is complied
with and the Collectors would be personally held responsible and shall
be dealt with in case the de novo proceedings are called for.
13.In case of urgency, the Collector under Section 17 of the Act, may, on
the expiration of fifteen days, from the publication of the notice
mentioned in Section 9 subsection (1) of the Act, take the possession
of any land needed for the public purposes. Such land will thereupon
vest absolutely in the Government. The Collector, however, has been
enjoined upon under Section 17-A of the Act, to tender payment of
eighty per centum of the compensation, prior to taking the possession
of the land under Section 17 of the Act, to the persons interested and
entitled thereto.
14.The Reply filed in opposition to the writ petition on hand and the stand
taken therein by the respondent no.6, indubitably divulges that the
compulsory acquisition had been kick-started on the directions of the
HLC and squared-off on issuance of the Notification under Section 17
of the Land Acquisition Act, followed by approving the Tentative

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Award on 14.06.2010 and the announcement of the Final Award on
10.12.2010. The Reply, on its meticulous examination, does not make
a whisper as to the adherence muchless the strict observance of the
provisions of Section 17-A of the Act. In such circumstances, the
provisions of Section 17-A, requiring the respondents to tender the
payment of eighty percent of the compensation for the land to the
petitioners prior to its acquisition, have been observed in breach. It may
not be out of place to mention here that no doubt the amount, to be
tendered under Section 17-A of the Act, represents 80% of the
"estimated compensation", still the Collector is required to apply some
reasonable yardstick for such estimation. It cannot be on the basis of
his whims and fancy. Some semblance of the exercise, trying to find
the market value of the land, is to be necessarily undertaken. I cannot
resist observing that such "estimated compensation" cannot be
abnormally low than the market value. No doubt the Collector has to
do the exercise of fixing the compensation as per his estimation.
However, that does not mean that it has to be totally off the mark or
without taking into consideration some relevant yardsticks. There is the
purpose in enacting Section 17-A of the Act, which mandates offering
80% estimated compensation at the time of taking the possession,
because the land owner is going to be deprived of his possession, in
such a case, even before the Award is passed and only because urgency
clause contained in Section 17 is invoked. In normal case, when
provisions of Section 17 are not invoked, the possession is taken only
after the Award is made and the entire amount of compensation as per
the Award is paid. In such a case he has the opportunity to adduce
evidence to enable the Collector to arrive at the just compensation.
Even when the compensation determined in the Award is not

OWP no.152/2012 Page 17 of 47
18

acceptable, the land owner is in a position to get the reasonable amount
in order to make the alternate arrangement as he is dispossessed of the
land of which he is the owner, which may even be his residence/house.
That was the position in the instant case where the petitioners were
staying in the house(s) constructed on land in question. The whole idea
underlying Section 17-A of the Act, therefore, is to pay some
reasonable amount, even when the urgency clause is invoked and the
possession is taken without pronouncing the Award, so that the person
who is going to be dispossessed gets some amount to make immediate
alternate arrangement.
15.No doubt, the Supreme Court has held that even when the possession
of the land, so acquired, is taken without offering the compensation
under Section 17(3A) of the Land Acquisition Act, which is para
materia to Section 17-A of the J&K State Land Acquisition Act, that
would not by itself render taking of the possession illegal. However,
that does not mean that the authorities may, in all cases and almost as
a matter of course, take possession of land after invoking Section 17 of
the Act without offering the compensation of 80% of the estimated
amount as provided under Section 17-A of the Act. Taking of the
possession in this manner without complying with the provisions
of Section 17-A of the Act can only be in exceptional circumstances
justifying non-observance of the mandate of Section 17-A. If such a
procedure is resorted to, in contravention of Section 17-A of the Act,
almost as a matter of routine and without any valid justification in
given cases, such action of the respondents can be dubbed as arbitrary
and malicious. The entire scheme under the Land Acquisition Act aims
at payment of compensation at the time of taking the possession. When
the ordinary process is initiated without resort to the provisions

OWP no.152/2012 Page 18 of 47
19

of Section 17 of the Act, only after the Award is passed and the
compensation determined after hearing the interested persons that the
possession is taken and at that time the compensation as determined is
offered. While equipping the executive with the powers under the
auspices of the provisions of Section 17, where immediate possession
may be required, the Legislature in its wisdom still thought that
estimated compensation be worked out and 80% thereof be paid to the
land owner prior to taking the possession. Obviously, the purpose is to
mitigate the hardship by paying some amount so that the person who is
deprived of his land is able to get immediate relief to some extent. In
the instant case itself the petitioners are not only deprived of their land
but their habitat as well. The respondents have, thus, made them
shelter-less without even paying compensation as per the provisions of
Section 17-A of the Act which could have provide them some succour.
16.Undoubtedly widening of Haft Chinar Indira Gandhi Road, Srinagar,
was an important project and citizens have to make sacrifices for the
success of this project. However, that does not mean that in the process
the respondents do not even adopt humane approach and deprive them
of their shelter mercilessly. In the present case the forcible demolition
in the garb of compulsory acquisition without tendering payment of
80% of the compensation estimated by the Collector before taking the
possession under Section 17 of the act, is an illegal exercise of powers
by the Collector, which vitiates the award. The Division Bench of this
Court in State v. Mohd Yasin AIR 1982 J&K 23 (DB) has observed
that the Collector has to determine the value of the land acquired in
accordance with the provisions of the Land Acquisition Act and the
provisions of the Act have to be taken into consideration in determining
the compensation to be paid. The first matter to be considered for

OWP no.152/2012 Page 19 of 47
20

awarding compensation in terms of the provisions of the Act is to find
out the market value of the land on the date of the publication of the
Notification under Section 6 of the Act. There are several other
methods narrated in this provision of the law to find out the fair
compensation to be paid to the person, from whom the land has to be
acquired. No doubt, the value of the land acquired is to be determined
for compensation to be awarded at the time of the notification under
section 6 of the Act, but there is general consensus of opinion that while
fixing the real market value, the potentialities of the land in question
also have to be taken into consideration. All the potentialities of the
land acquired have to be taken into account as part of the value of the
land. Advantages that the land possesses, present or future, in the hands
of the owner himself may reasonably be taken into consideration while
fixing the compensation to be awarded to him. The owner would be
within his rights to have the price assessed in reference to those
advantages, which would give the land the maximum value. It is not
only the existing benefits derived from the land by the owner that have
to be taken into consideration but even possible benefits in the future
have to be gone into and considered while fixing the compensation of
the land acquired. The potential value of the land has to be taken into
consideration while fixing the market value of the land. The value of
the land would not entirely depend on the actual use to which the same
was being put on the date of the publication of the Notification. Where
a piece of land sought to be acquired is situated by the roadside in a
town or a village, which is fact and steadily growing, the land has to be
valued with reference to the use to which it could have been put in
future by its owner. The method of determining the market value/price
of a plot of land was to find out instances of sale of the same or similar

OWP no.152/2012 Page 20 of 47
21

type of land and/or a portion thereof near about the date of notification
under Section 6. The relevant features to determine the market value
would be the nature of the land, the quality of land, the market
conditions prevailing as on the date of acquisition, potential value of
the land as on date of its acquisition. in order to determine the
compensation for acquisition of land for public purposes, the guiding
principle is the market value at the time of such acquisition which a
proprietor could have got by selling the same privately. It is well settled
principle that small pieces of land fetch more price than the larger ones.
[Vide: Parlhad Singh & ors v. Collector 2009 (JKJ) HC (2) 603 and
Collector v. Gh Qadir Sheikh & ors AIR 1974 J&K 45 (DB).
17.The learned counsel for the petitioner has invited attention of this Court
to the judgement dated 09.12.2013 passed by a Bench of this Court in
OWP no.47/2013 titled Mohd Ashraf Sofi and others v. State of J&K
and others, to contend the aforesaid case is akin to the instant case and
states that the present case is also similar to the aforementioned case
inasmuch as the Government has complied with the judgement dated
09.12.2013, by giving the benefits of allotment of plots of land for
residential and other purposes. He states that petitioners, besides
compensation, are also entitled to the allotment of the shops and the
house sites towards their rehabilitation as has been done in respect of
the aforementioned case. The pertinent excerpts of the aforesaid
judgement dated 09.12.2013, having akinness with the writ petition on
hand, are profitable to be reproduced infra:
"7. It is stated that since all the petitioners did not accept the package
deals offered to them, the respondents resorted to compulsory
acquisition. The reasons for not accepting the package deal, as disclosed
in the writ petition are: first that respondent no.8, who was only a tenant
in Auquaf Building, marked as structure R-2, was offered and paid
compensation of Rs.3,00,000.00 and a plot of land measuring 25' x 40'
at SDA Bemina; whereas the petitioners, who comprised 19 families
were sought to be discriminated against in as much as they were not

OWP no.152/2012 Page 21 of 47
22

offered 19 plots of land. Besides, it is their case that the Tehsildar, North
Srinagar, had specified the market value of the land between Rs.70-80
lacs per kanal, but they were offered the package deal at Rs.37 lac per
kanal. It is the case of the petitioners that in the final award, too, their
compensation has been assessed at Rs.37 lac per kanal, which is far
below the market value of the land as specified by the Tehsildar, North
Srinagar. It is also their case that some of the persons, including
respondent no.8 herein, have been paid Rs.10,00,000.00 as
compensation in lieu of plot of land which benefit has been denied to
them. It is contended that the discriminatory treatment meted out to the
petitioners is violative of the right to equality and equal protection of
laws as envisaged in Article 14 of the Constitution of India and the
National Rehabilitation & Resettlement Policy 2007 under which the
petitioners were also entitled to plots of land and other incentives.

8. Respondents in their reply have stated that since the properties
have ultimately been compulsorily acquired and the compensation
amount of the land/structures alongwith 15% Jabirana as per the
provisions of the Act stands deposited with the Court concerned, there
is no scope left with the Collector, as such, the claim of the petitioners
does not merit any consideration. It is also stated therein that it is only
HLC which is empowered to benefit any rehabilitation package, which
has not been accepted by the petitioners.

9. I have heard learned counsel for the parties, perused the original
record and considered the matter.

10. It is not in dispute that the High Level Committee meetings 108,
150 and 153 were held on 08.01.2005, 16.05.2009 and 11.07.2009
respectively. The package deals were, admittedly, offered to the
petitioners and others in the aforesaid HLC meetings. Petitioners are
aggrieved of the package deals offered to them at such meetings, being
discriminatory and seek appropriate relief. Petitioners have been
discriminated against respondent No. 8 in terms of compensation paid
to him as a tenant at the rate of Rs.40.00 lacs as the cost of structure
including cost of land while as in case of petitioners, the rate has been
fixed in the final awards at Rs.37.00 lacs in contradiction to the market
rate specified by Tehsildar North at Rs.70-80 lacs. The petitioners have
also been deprived of the plots of land to which they were entitled to on
the analogy of respondent No. 8 and other similarly situated persons
who have been provided plots of land in the alternative cash in the
amount of Rs.10.00 lacs. Respondent No. 8 has also been paid
compensation of Rs.10.00 lacs in lieu of one shop while as the
petitioners who have lost nine shops have not been provided any shop
in the final award in contrast to a few shops offered to them in the HCL
meetings referred to above. This discriminatory treatment meted out to
the petitioners is violative of the right to equality and equal protection
of laws as envisaged in Article 14 of the Constitution of India. Moreso
petitioners were entitled to the benefit of consideration under National
Rehabilitation and Resettlement Policy 2007 under which the

OWP no.152/2012 Page 22 of 47
23

petitioners were also entitled to the plots of land and other incentives.
Respondents have adopted arbitrary approach thereby depriving the
petitioners of adequate compensation in lieu of their properties already
taken over for road widening purpose.

11. The forcible demolition in the garb of compulsory acquisition on
08.12.2012 without tendering payment of 80% of the compensation
estimated by the Collector before taking possession under Section 17
Land Acquisition act is an illegal exercise of power exercised by the
Collector which vitiates the award.

12. In case titled Tukaram Kana Joshi and Ors. Vs. MIDC and Ors.
(2012) INSC 662 (2 November, 2012) it has been held by the apex
Court that in a welfare State, statutory authorities are bound not only to
pay adequate compensation but there is also a legal obligation upon
them to rehabilitate such persons. Non fulfilment of their obligations
tantamount to forcing the said uprooted persons to become vagabonds,
as such, sentiments would be born in them on account of such ill
treatment.

13. It is specifically averred in the petition that in so far as the first group
of petitioners is concerned, notices under section 9 and 9-A of the Act
were issued in the name of petitioners 1 and 2 alone, ignoring petitioners
3 to 7. Similarly, in the second group of petitioners, such notices were
issued to petitioner nos. 8 and 9 alone, ignoring the other petitioners.
Again, in the third group of petitioners, notice under Sections 9 and 9-
A of the Act are stated to have been issued in the name of deceased
father of petitioners 10 to 14 and petitioner nos. 15 and 16. In the fourth
group of petitioners, it is stated to have been issued only to deceased
father of the petitioners 19 to 22 and the deceased father of petitioners
23 to 30 and deceased mother of petitioner nos. 33 to 38. So is the case
with the two other groups of petitioners. On that count, it is stated that
the whole acquisition proceedings are vitiated and rendered illegal.
These specific averments made in the writ petition have not been
rebutted or denied by the respondents in their reply filed in response to
this petition. It is also specifically stated in the reply that the
compensation so awarded has been deposited in the Court concerned,
meaning thereby that the petitioners have not received the amount. It
is also not the case of the respondents, nor is it stated in the reply that
notice under Section 12(2) of the Act was served on, or received, by the
petitioners, especially those who had not been issued notice under
Sections 9 and 9-A of the Act detailed in the writ petition.
xxx xxx
15. Now, the question is what relief can be granted to the petitioners
at this belated stage when the properties have already been taken over
by the respondents and their structures demolished. The petitioners'
main grievance pertains to inadequacy of the compensation which can
be determined only by HLC with reference to negotiation undertaken.

OWP no.152/2012 Page 23 of 47
24

16. In light of the above, this petition is disposed of together with the
connected
CMP(s) in the following terms:

By writ of certiorari the impugned final awards passed on
01.12.2012 by respondent No. 5 in respect of structure under
Engineering Mark R-1, of petitioners 1 to 7, Mark R-9, of petitioners 8
to 11, Mark R-28, of petitioners 12 to 18, Marks 29-R1, 29-R2, of
petitioners 19 to 38, Mark 30-RA of petitioners 39 to 45 and Mark 30-
RB of petitioners 46 to 48 acquired forcibly shall stand quashed.
Writ of mandamus respondents 3 to 7 are directed to submit the case
of the petitioners to High Level Committee headed by respondent No. 2
for fixation and payment of adequate compensation for building
structures and in terms of package related to such structure in the form
of providing residential plots for dislocated families which are 19 in
number. Respondents shall also pay compensation in lieu of shops
acquired from the petitioners on the analogy of respondent No. 8 who
has been paid Rs.10.00 lacs in lieu of one shop.
Petitioners' case shall be submitted by respondents 3 and 5 to High
Level Committee within a period of 15 days from the date copy of this
order is served upon Deputy Commissioner, Srinagar and Collector
PHE/Circular Road Project Srinagar. Divisional Commissioner,
Kashmir- respondent No. 2 shall take a decision in light of the directions
for payment of adequate compensation and for providing plot of land in
favour of petitioners within a period of two months thereafter.

17. The original record file produced for perusal of the Court is
returned to the learned counsel for the respondents in the open Court.
Disposed of along with connected CMP(s)."

18.From the above discussion, the controversy constricts to the application
of the judgement dated 09.12.2013 passed by a Bench of this Court in
OWP no.47/2013 titled Mohd Ashraf Sofi and others v. State of J&K
and others, and the legal position laid down therefrom having binding
impact on all concerned, including the petitioners and respondents
herein. To better understand, it would be advantageous to have an
exploration of the judicial pronouncements qua the application and

OWP no.152/2012 Page 24 of 47
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bindingness of the settled law as a result of judicial pronouncement of
the Court.
19.The India is governed by a judicial system identified by a hierarchy of
courts, where the doctrine of the binding precedent is a cardinal feature
of its jurisprudence. It used to be disputed that the Judges make the law.
Today, it is no longer a matter of doubt that a substantial volume of the
law governing the lives of citizens and regulating the functions of the
State flows from the decisions of the superior courts. "There was a
time: observed Lord Reid, "when it was thought almost indecent to
suggest that Judges make law--They only declare it ........ But we do not
believe in fairy tales anymore" The Judge as law Maker" p. 22." In the
countries, such as the United Kingdom, where the Parliament as the
legislative organ is supreme and stands at the apex of the constitutional
structure of the State, the role played by the judicial law making is
limited. In the first place the function of the courts is restricted to the
interpretation of laws made by the Parliament, and the courts have no
power to question the validity of Parliamentary statutes, the Diceyan
dictum holding true that the British Parliament is paramount and all
powerful. In the second place, the law enunciated in every decision of
the courts in England can be superseded by an Act of Parliament. As
Cockburn CJ. observed in Exp. Canon Selwyn, [1872] 36 JP 54:

"There is no judicial body in the country by which the validity
of an Act of Parliament could be questioned. An act of the
Legislature is superior in authority to any Court of Law".

20.And Ungoed Thomas J., in Cheney v. Conn, [1968] 1 All ER 779
referred to a Parliamentary statute as "the highest form of law .....which
prevails over every other form, of law." The position is substantially
different under a written Constitution, such as the one which governs

OWP no.152/2012 Page 25 of 47
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us. The Constitution of India, which represents the Supreme Law of the
land, envisages the three distinct organs of the State, each with its own
distinctive functions, each a pillar of the State. Broadly, while the
Parliament and the State Legislature in India enact the law and the
Executive government implements it, the judiciary sits in the judgment
not only on the implementation of the law by the Executive but also on
the validity of the Legislation sought to be implemented. One of the
functions of the superior judiciary in India is to examine the
competence and validity of the legislation, both in point of the
legislative competence as well as its consistency with the Fundamental
Rights. In this regard, the courts in India possess a power not known
to the English Courts. Where a statute is declared invalid in India, it
cannot be reinstated unless the constitutional sanction is obtained,
therefore, by a constitutional amendment or an appropriately modified
version of the statute is enacted, which accords with the constitutional
prescription. The range of the judicial review recognised in the superior
judiciary of India is perhaps the widest and the most extensive known
to the world of law. The power extends to examining the validity of
even an amendment to the Constitution, for now it has been repeatedly
held that no constitutional amendment can be sustained which violates
the basic structure of the Constitution. [See: His Holiness
Kesavananda Bharati Sripadagalavaru v. State of Kerala, 1973
Suppl. SCR 1; Smt. Indira Nehru Gandhi v. Shri Raj Narain (1976)
2 SCR 347; Minerva Mills Ltd. and others v. Union of India and
others (1980) 2 SCC 591; and S.P. Sampath Kumar etc. v. Union of
India and Ors., (1987) 1 SCR 435. With this impressive expanse of the
judicial power, it is only the right that the superior courts in India
should be conscious of the enormous responsibility which rests on

OWP no.152/2012 Page 26 of 47
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them. This is specially true of the Supreme Court, for as the highest
Court in the entire judicial system, the law declared it is, by Article 141
of the Constitution, binding on all the courts within the territory of
India.
21.Taking note of the hierarchical character of the judicial system in India,
it is of paramount importance that the law declared by the Courts
should be certain, clear and consistent. It is commonly known that the
most decisions of the courts are of significance not merely because they
constitute an adjudication on the rights of the parties and resolve the
dispute between them, but also because in doing so they embody a
declaration of law operating as a binding principle in the future cases.
In this latter aspect lies their particular value in developing the
jurisprudence of the law. The doctrine of the binding precedent has the
merit of promoting a certainty and consistency in the judicial decisions,
and enables an organic development of the law, besides providing the
assurance to the individual as to the consequence of the transaction
forming part of his daily affairs. And, therefore, the need for a clear
and consistent enunciation of the legal principle in the decisions of a
Court. But like all the principles evolved by man for the regulation of
the social order, the doctrine of the binding precedent is circumscribed
in its governance by the perceptible limitations, the limitations arising
by reference to the need for the readjustment in a changing society, a
readjustment of legal norms demanded by a changed social context.
This need for adapting the law to new urges in society brings home the
truth of the Holmesian aphorism that "the life of the law has not been
logic it has been experience". Oliver Wendell Holmes, "The Common
Law" p. 5 and again when he declared in another study that Oliver
Wendell Holmes, "Common Carriers and the Common Law", (1943) 9

OWP no.152/2012 Page 27 of 47
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Curr. L.T. 387, 388, "the law is forever adopting new principles from
life at one end," and "sloughing off" old ones at the other. Explaining
the conceptual import of what Holmes had said, Julius Stone elaborated
that it is by the introduction of the new extra-legal propositions
emerging from the experience to serve as premises, or by the
experience-guided choice between the competing legal propositions,
rather than by the operation of the logic upon the existing legal
propositions, that the growth of the law tends to be determined. Julius
Stone, "Legal Systems & Lawyers Reasoning", pp. 58-59.
22.The legal compulsions cannot be limited by the existing legal
propositions, because there will always be, beyond the frontiers of the
existing law, new areas inviting the judicial scrutiny and the judicial
choice-making, which could well affect the validity of the existing
legal dogma. The search for solutions responsive to a changed social
era involves a search not only among the competing propositions of
law, or the competing versions of a legal proposition, or the modalities
of an indeterminacy such as "fairness" or "reasonableness", but also
among the propositions from outside the ruling law, corresponding to
the empirical knowledge or accepted values of the present time and the
place, relevant to the dispensing of the justice within the new
parameters.
23.The universe of the problems presented for the judicial choice-making
at the growing points of the law is an expanding universe. The areas
brought under control by the accumulation of the past judicial choice
may be large. Yet the areas newly presented for still further choice,
because of changing social, economic and technological conditions, are
far from inconsiderable. It has also to be remembered, that the many
occasions for the new options arise by the mere fact that no generation

OWP no.152/2012 Page 28 of 47
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looks out on the world from quite the same vantage point as its
predecessor, nor for the matter with the same perception. A different
vantage-point or a different quality of perception often reveals the need
for the choice-making where formerly no alternatives, and no problems
at all, were perceived. The extensiveness of the areas for the judicial
choice at a particular time is a function not only of the accumulation of
the past decisions, not only of the changes in the environment, but also
of new insights and perspectives both on old problems and on the new
problems thrown up by the changes entering the cultural and social
heritage.
24.Not infrequently, in the nature of things there is a gravity-heavy
inclination to follow the groove set by precedential law. Yet a sensitive
judicial conscience often persuades the mind to search for a different
set of norms more responsive to the changed social context. The
dilemma before the Judge poses the task of finding a new equilibrium,
prompted not seldom by the desire to reconcile the opposing mobilities.
The competing goals, according to Dean Roscoe Pound, invest the
Judge with the responsibility "of proving to mankind that the law was
something fixed and settled, whose authority was beyond question,
while at the same time enabling it to make constant readjustments and
occasional radical changes under the pressure of infinite and variable
human desires. [Roscoe Pound, "an Introduction to the Philosophy of
Law" p. 19]. The reconciliation suggested by Lord Reid in "The Judges
as Law Maker" pp. 25-6, lies in keeping the both objectives in view,
"that the law shall be certain, and that it shall be just move with the
times." An elaboration of his opinion is contained in Myers v. Director
of Public Prosecutions, L.R. 1965 A.C. 1001, where he expressed the

OWP no.152/2012 Page 29 of 47
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need for change in the law by the court and the limits within which
such change could be brought about. He said:

"I have never taken a narrow view of the functions of this House
as an appellate tribunal. The common law must be developed to
meet changing economic conditions and habits of thought, and I
would not be deterred by expressions of opinion in this House in
old cases. But there are limits to what we can or should do. If we
are to extend the law it must be by the development and
application of fundamental principles. We cannot introduce
arbitrary conditions or limitations: that must be left to legislation.
And if we do in effect change the law, we ought in my opinion
only to do that in cases where our decision will produce some
finality or certainty."

25.Whatever the degree of the success in resolving the dilemma, the Court
would do well to ensure that although the new legal norm chosen in
response to the changed social climate represents a departure from the
previously ruling norm, it must, nevertheless carry within it the same
principle of certainty, clarity and stability. The profound responsibility
which is borne by the Court in its choice between earlier established
standards and the formulation of a new code of norms is all the more
sensitive and significant because the response lies in relation to a
rapidly changing social and economic society. In a developing society,
such as India, the law does not assume its true function when it follows
a groove chased amidst a context, which has long since crumbled.
There will be found among some of the areas of the law norms selected
by a judicial choice educated in the experience and values of a world,
which passed away forty years ago. The social forces, which demand
the attention in the cauldron of the change from which a new society is
emerging, appear to call for the new perceptions and the new
perspectives. The recognition that the times are changing and that there
is occasion for a new jurisprudence to take birth, is evidenced by what

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the Supreme Court said in The Bengal Immunity Company Limited v.
The State of Bihar and others (1955) 2 SCR 603, when it observed
that it was not bound by its earlier judgments and possessed the
freedom to overrule its judgments when it thought fit to do so to keep
pace with the needs of the changing times. The acceptance of this
principle ensured the preservation and legitimation provided to the
doctrine of the binding precedent, and therefore, the certainty and
finality in the law, while permitting the necessary scope for the judicial
creativity and the adaptability of the law to the changing demands of
the society. The question then is not whether the Supreme Court is
bound by its own previous decisions. It is not. The question is under
what circumstances and within what limits and in what manner should
the highest Court overturn its own pronouncements.
26.In the examination of this question it would perhaps be appropriate to
refer to the response of other jurisdictions, especially those with which
the judicial system in India has borne the historical relationship. The
House of the Lords in the England provides the extreme example of a
judicial body which disclaimed the power to overrule itself. It used to
be said that the House of the Lords did never overrule itself but only
distinguished its earlier decisions. An erroneous decision of the House
of Lords could be set right only by an Act of Parliament. [See: Street
Tramways v. London County Council, [1898] A.C. 375 and Radcliffe
v. Ribble Motor Services Ltd., [1939] A.C. 215,245]. Apparently
bowing to the pressure of a reality forced upon it by the reason of a
rapidly gathering change in the socio-economic structure, on 26 July,
1966, Lord Gardiner, L.C., made the following statement on behalf of
himself and the Lords of the Appeal in Ordinary:

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"Their lordship regard the use of precedent as an indispensable
foundation upon which to decide what is the law and its
application to individual cases. It provides at least some degree of
certainty upon which individuals can rely in the conduct of their
affairs, as well as a basis for orderly development of legal rules.
Their lordships nevertheless recognise that too rigid adherence to
precedent may lead to injustice in a particular case and also
unduly restrict the proper development of the law. They propose
therefore to modify their present practice and, while treating
former decisions of this House as normally binding, to depart
from a previous decision when it appears right to do so.
In this connection they will bear in mind the danger of disturbing
retrospectively the basis on which contracts, settlements of
property and fiscal arrangements have been entered into and also
the especial need for certainty as to the criminal Law."

27.Since then the House of the Lords has framed the guidelines in a series
of the cases decided up to 1975 and the guidelines have been
summarised in Dr. Alan Paterson's "Law Lords" 1982: pp. 156-157.
He refers to the several criteria articulated by Lord Reid in those cases.
1) The freedom granted by the 1966 Practice Statement ought to be
exercised sparingly (the 'use sparingly' criterion) (Jones v. Secretary
of State for Social Services, [1972] A.C. at 966.
2) A decision ought not to be overruled if to do so would upset the
legitimate expectations of people who have entered into contracts
or settlements or otherwise regulated their affairs in reliance on the
validity of that decision (the 'legitimate expectations' criterion)
(Ross Smith v. Ross-Smith, [1963] A.C. 280, 303 and Indyka v.
Indyka, [1969] I A.C. 33, 69.)
3) A decision concerning the questions of the construction of the
statute or other documents ought not to be overruled except in the
rare and exceptional cases (the 'Construction' criterion) Jones, at
966.

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4) (a) A decision ought not to be overruled if it would be impracticable
for the Lords to foresee the consequences of departing from it (the
'unforseeable consequences' criterion) (Steadman v. Steadman,
[1976] A.C. 536,542).
(b) A decision ought not to be overruled if to do so would involve a
change that ought to be part of a comprehensive reform of the law.
Such changes are best done 'by legislation following on a wide
survey of the whole field' (the 'need for comprehensive reform'
criterion) (DPP v. Myers, [1965] A.C. 1001, 1022; Cassell v.
Broome, [1972] A.C. 1027, 11086 and Haughton v. Smith, [1975]
A.C. 476,500).
5) In the interest of certainty, a decision ought not to be overruled
merely because the Law Lords consider that it was wrongly decided.
There must be some additional reasons to justify such a step (the
'precedent merely wrong' criterion) Knuller v. DPP, [1973] A .C.
435,455;
6) A decision ought to be overruled if it causes such great uncertainty
in practice that the Parties' advisers are unable to give any clear
indication as to what the courts will hold the law to be (the
'rectification of uncertainty' criterion) Jones, at 966; Oldendroll &
Co. v. Tradex Export, S.A. 1974 479,533,535.
7) A decision ought to be overruled if .in relation to some broad issue
or principle it is not considered just or in keeping with contemporary
social conditions or modern conceptions of public policy (the
'unjust or outmoded' criterion) ibid Conway v. Rimmer, [1968]
A.C. 910,938. Dr Paterson noted that between the years 1966 and
1988 there were twenty-nine cases in which the House of Lords was
invited to overrule one of its own precedents, that the House of

OWP no.152/2012 Page 33 of 47
34

Lords did so in eight of them, while in a further ten cases at least
one of the Law Lords was willing to overrule the previous House of
Lords precedent. In a considerable number of other cases, however,
the Law Lords seemed to prefer to distinguish the earlier decisions
rather than overrule them.
28.The High Court of the Australia, the highest Court in the
Commonwealth, has reserved to itself the power to reconsider its own
decision, but has laid down that the power should not be exercised upon
a mere suggestion that some or all the members of the later Court would
arrive at a different conclusion if the matter were res integra. In the
Tramways case, [1914] 18 C.L.R. 54, Griffith, C.J., while doing so
administered the following caution:

"In my opinion, it is impossible to maintain as an abstract
proposition that Court is either legally or technically bound by
previous decisions. Indeed, it may, in a proper case, be its duty
to disregard them. But the rule should be applied with great
caution, and only when the previous decision is manifestly
wrong, as, for instance, if it proceeded upon the mistaken
assumption of the continuance of a repealed or expired Statute,
or is contrary to a decision of another Court which this Court is
bound to follow; not, I think, upon a mere suggestion, that some
or all of the members of the later Court might arrive at a
different conclusion if the matter was res integra. Otherwise
there would be great danger of want of continuity in the
interpretation of law."

29.In the same case, Barton, J. observed at p. 69:

" ..... I would say that I never thought that it was not open to this
Court to review its previous decisions upon good cause. The
question is not whether the Court can do so, but whether it will,
having due regard to the need for continuity and consistency in
the judicial decision. Changes in the number of appointed
Justices can, I take it, never of themselves furnish a reason for
review ..... But the Court can always listen to argument as to
whether it ought to review a particular decision, and the

OWP no.152/2012 Page 34 of 47
35

strongest reason for an overruling is that a decision is manifestly
wrong and its continuance is injurious to the public interest".

30.The Judicial Committee of the Privy Council also took the view that it
was not bound in the law by its earlier decisions, but in In re
Compensation to Civil Servants, L.R. 1929 A.C. 242; A.I.R. 1929 P.C.
84, 87, it declared that it "would hesitate long before disturbing a
solemn decision by a previous Board, which raised an identical or even
a similar issue for determination" and reiterated that reservation in the
Attorney-General of Ontario v. The Canada Temperance Federation,
L.R. 76 Q.A. 10 and Phanindra Chandra Neogy v. The King [1953]
SCR 1069.
31.These cases from England, Australia and the United States were
considered by the Supreme Court in The Bengal Immunity Company
Limited case (supra), perhaps the first recorded instance of the
Supreme Court in this country being called upon to consider whether it
could overrule an earlier decision rendered by it. A Bench of Seven
Judges assembled to consider whether the majority decision of a
Constitution Bench of Five Judges in State of Bombay v. The United
Motors (India) Ltd (1953) S.C.R. 1069, should be reconsidered. The
Four Judges of the Bench of Seven said it should and voted to overrule
the majority decision in the United Motors, (supra). The remaining
three voted to the contrary. Das, Acting C.J., speaking for himself and
on behalf of Bose, Bhagwati and Jafar Imam, JJ, preferred the approach
adopted by the United States Supreme Court since, in the view of that
learned Judge, the position in India approximated more closely to that
obtaining in the United states rather than to the position in England,
where the Parliament could rectify the situation by a simple majority,
and to that in Australia, where the mistake could be corrected in appeal
to the Privy Council. The learned Judge observed: "There is nothing

OWP no.152/2012 Page 35 of 47
36

in our Constitution which pre- vents us from departing from a previous
decision if we are convinced of its error and its baneful effect on the
general interests of the public." And reference was made to the
circumstance that Article 141 of the Constitution made the law
declared by the Supreme Court binding on all Courts in India. Speaking
with reference to the specific case before the Court, the learned Judge
referred to the far-reaching effect of the earlier decision in the United
Motors (supra) on the general body of the consuming public, and that
the error committed in the earlier decision would result in perpetuating
a tax burden erroneously imposed on the people, giving rise to a
consequence "manifestly and wholly unauthorised." The learned Judge
observed:

"It is not an ordinary pronouncement declaring the rights of two
private individuals inter se. It involves an adjudication on the
taxing power of the States as against the consuming public
generally. If the decision is erroneous, as indeed we conceive it to
be, we owe it to the public to protect them against the illegal tax
burdens which the States are seeking to impose on the strength of
that erroneous recent decision".

32.Cautioned that the Court should not differ merely because a contrary
view appeared preferable, the learned Judge affirmed that "we should
not lightly dissent from a previous pronouncement of this Court." But
if the previous decision was plainly erroneous, he pointed out, there
was a duty on the Court to say so and not perpetuate the mistake. The
appeal to the principle of stare decisis was rejected on the ground that
(a) the decision intended to be overruled was a very recent decision and
it did not involve overruling a series of decisions, and (b) the doctrine
of stare decisis was not an inflexible rule, and must, in any event, yield
where following it would result in perpetuating an error to the
detriment of the general welfare of the public or a considerable section

OWP no.152/2012 Page 36 of 47
37

thereof. Since then the question as to when should the Supreme Court
overrule its own decision has been considered in several cases. Relying
on the Bengal Immunity case, Khanna, J. remarked that certainly in the
law, which was an essential ingredient of the Rule of Law, would be
considerably eroded if the highest court of the land lightly overruled
the view expressed by it in earlier cases. One instance where such
overruling could be permissible was a situation where contextual
values giving birth to the earlier view had altered substantially since.
33.In Manganlal Chhaganlal (P) Ltd v. Municipal Corporation of
Greater Bombay and others, [1975] 1 SCR 1, he explained:

"Some new aspects may come to light and it may become
essential to cover fresh grounds to meet the new situations or to
overcome difficulties which did not manifest themselves or
were not taken into account when the earlier view was pro-
pounded. Precedents have a value and the ratio decidendi of a
case can no doubt be of assistance in the decision of future cases.
At the same time we have to, as observed by Cardozo, guard
against the notion that because a principle has been formulated
as the ratio decidendi of a given problem, it is therefore to be
applied as a solvent of other problems, regardless of
consequences, regardless of deflecting factors, inflexibly and
automatically, in all its pristine generality (see Selected
Writings, p. 31). As in life so in law things are not static."

34.In Lt. Col. Khajoor Singh v. The Union of India & another [1961] 2
SCR 828, the majority of the Supreme Court emphasised that the court,
should not depart from an interpretation given in an earlier judgment
of the court unless there was a fair amount of unanimity that the earlier
decision was manifestly wrong. In Keshav Mills Company v.
Commissioner of Income Tax [1965] 2 SCR 908, the Supreme Court
observed that a revision of its earlier decision would be justified if there
were the compelling and substantial reasons to do so. In Sajjan Singh
v. State of Rajasthan [1965] 1 SCR 933, the Supreme Court laid down

OWP no.152/2012 Page 37 of 47
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the test: 'Is it absolutely necessary and essential that the question
already decided should be reopened?', and went on to observe: 'the
answer to this question would depend on the nature of the infirmity
alleged in the earlier decision, its impact on public good and the
validity and compelling character of the considerations urged in
support of the contrary view.' There can be no doubt, as was observed
in Girdhari Lal Gupta v. D.H.Mill [1971] 3 SCR 748, that where an
earlier relevant statutory provision has not been brought to the notice
of the court, the decision may be reviewed, or as in Phillani Investment
Corporation Ltd v. I.T.O. 'A' Ward, Calcutta & another, [1972] 2
SCR 502, if a vital point was not considered. A more compendious
examination of the problem was undertaken in Keshav Mills Company
case (supra) where the Court pointed out:

"It is not possible or desirable, and in any case it would be
inexpedient to lay down any principles which should govern the
approach of the Court in dealing with the question of reviewing
and revising its earlier decisions. It would always depend upon
several relevant considerations:-- What is the nature of the
infirmity or error on which a plea for a review and revision of
the earlier view is based? On the earlier occasion, did some
patent aspects of the question remain unnoticed, or was the
attention of the Court not drawn to any relevant and material
statutory provision, or was any previous decision of this Court
bearing on the point not noticed? Is the court hearing such plea
fairly unanimous that there is such an error in the earlier view?
What would be the impact of the error on the general
administration of law or on public good? Has the earlier
decision been followed on subsequent occasions either by this
Court or by the High Courts? And, would the reversal of the
earlier decision lead to public inconvenience, hardship or
mischief? These and other relevant considerations must be
carefully borne in mind whenever this Court is called upon to
exercise its jurisdiction to review and revise its earlier decisions.
These considerations become still more significant when the
earlier decision happens to be a unanimous decision of the
Bench of five learned Judges of this Court."

OWP no.152/2012 Page 38 of 47
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35.Much importance has been laid on observing the finality of the
decisions rendered by the Constitution Bench of the Supreme Court,
and in Ganga Sugar Company v. State of Uttar Pradesh [1980] 1 SCR
769, the Court held against the finality only where the subject was 'of
such fundamental importance to national life or the reasoning is so
plainly erroneous in the light of later thought that it is wiser to be
ultimately right rather than to be consistently wrong'. It is not
necessary to refer to all the cases on the point. The broad guidelines are
easily deducible from what has gone before. The possibility of further
defining these guiding principles can be envisaged with further
juridical experience, and when the common jurisprudential values
linking different national systems of the law may make a consensual
pattern possible. But that lies in the future. There was some debate on
the question whether a Division Bench of the Judges is obliged to
follow the law laid down by a Division Bench of a larger number of
the Judges. Doubt has arisen on the point because of the certain
observations made by O. Chinnappa Reddy, J. in Javed Ahmed Abdul
Hamid Pawala v. State of Maharashtra AIR 1985 SC 23. Earlier, a
Division Bench of the two Judges, of whom he was one, had expressed
the view in T.V. Vatheeswaran v. The State of Tamil Nadu, AIR 1983
SC 361, that delay exceeding two years in the execution of a sentence
of death should be considered sufficient to entitle a person under
sentence of death to invoke Article 21of the Constitution and demand
the quashing of the sentence of death. This would be so, he observed,
even if the delay in the execution was occasioned by the time necessary
for filing an appeal or for considering the reprieve of the accused or
some other cause for which the accused himself may be responsible.
This view was found unacceptable by a Bench of three Judges in Sher

OWP no.152/2012 Page 39 of 47
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Singh & others v. State of Punjab, AIR 1983 SC 465, where the
learned Judges observed that no hard and fast rule could be laid down
in the matter. In direct disagreement with the view in T.V.
Vatheeswaran case (supra), the learned Judges said that account had to
be taken of the time occupied by proceedings in the High Court and in
the Supreme Court and before the executive authorities, and it was
relevant to consider whether the delay was attributable to the conduct
of the accused. As a member of another Bench of two Judges, in Javed
Ahmed Abdul Hamid Pawala, case (supra), O. Chinnappa Reddy, J.

questioned the validity of the observations made in Sher Singh case (supra) and went on to note, without expressing any concluded opinion on the point, that it was a serious question "whether a Division Bench of three Judges could purport to overrule the judgment of a Division Bench of two Judges merely because there is larger than two. The Court sits in Divisions of two and three Judges for the sake of convenience and it may be inappropriate for a Division Bench of three Judges to purport to overrule the decision of a Division Bench of two Judges. [Vide Young v. Bristol Aeroplane Co. Ltd., [1944] 2 All ER 293]. It may be otherwise where a Full Bench or a Constitution Bench does so." It is pertinent to record here that because of the doubt cast on the validity of the opinion in Sher Singh case (supra), the question of the effect of delay on the execution of a death sentence was referred to a Division Bench of the Five Judges, and in Triveniben v. State of Gujarat AIR 1989 SC 142, the Constitution Bench overruled T.V. Vatheeswaran case (supra). What then should be the position in regard to the effect of the law pronounced by a Division Bench in relation to a case raising the same point subsequently before a Division Bench of a smaller number of Judges? There is no constitutional or statutory OWP no.152/2012 Page 40 of 47 41 prescription in the matter, and the point is governed entirely by the practice in India of the Courts sanctified by repeated affirmation over a century of time. It cannot be doubted that in order to promote consistency and certainty in the law laid down by a superior Court, the ideal condition would be that the entire Court should sit in all cases to decide questions of law, and for that reason the Supreme Court of the United States does so. But having regard to the volume of the work demanding the attention of the Court, it has been found necessary in India as a general rule of practice and convenience that the Court should sit in the Divisions, each Division being constituted of the Judges whose number may be determined by the exigencies of the judicial need, by the nature of the case including any statutory mandate relative thereto, and by such other considerations which the Chief Justice, in whom such authority devolves by convention, may find most appropriate. It is in order to guard against the possibility of the inconsistent decisions on the points of law by the different Division Benches that the rule has been evolved, in order to promote the consistency and certainty in the development of the law and its contemporary status, that the statement of the law by a Division Bench is considered binding on a Division Bench of the same or lesser number of the Judges. This principle has been followed in India by the several generations of the Judges. I may refer to a few of the cases on the point. In John Martin v. The State of West Bengal [1975] 3 SCR 211, a Division Bench of the three Judges found it right to follow the law declared in Haradhan Saha v. State of West Bengal [1975] 1 SCR 778 decided by a Division Bench of the Five Judges, in preference to Bhut Nath Mate v. State of West Bengal AIR 1974 SC 806, decided by a Division Bench of two Judges. Again in Smt. Indira Nehru Gandhi v.

OWP no.152/2012 Page 41 of 47 42

Shri Raj Narain [1976] 2 SCR 347, Beg, J. held that the Constitution Bench of the Five Judges was bound by the Constitution Bench of the Thirteen Judges. In Ganapati Sitaram Balvalkar & another v. Waman Shripad Mage (Since Dead) through LRs [1981] 4 SCC 143, the Supreme Court expressly stated that the view taken on a point of law by a Division Bench of the Four Judges of the Supreme Court was binding on a Division Bench of three Judges of the Court. And in Mattulal v. Radhe Lal [1975] 1 SCR 127, the Supreme Court specifically observed that where the view expressed by two different Division Benches of the Supreme Court could not be reconciled, the pronouncement of a Division Bench of a larger number of Judges had to be preferred over the decision of a Division Bench of a smaller number of Judges. The Supreme Court also laid down in Acharaya Maharajshri Narandraprasadji Anandprasadji Maharaj etc. etc. v. The State of Gujarat & Ors., [1975] 2 SCR 317, that even where the strength of two differing Division Benches consisted of the same number of Judges, it was not open to one Division Bench to decide the correctness or other-wise of the views of the other. The principle was reaffirmed in Union of India & others v. Godfrey Philips India Ltd [1985] 4 SCC 369, which noted that a Division Bench of two Judges of the Supreme Court in Jit Ram v. State of Haryana [1980] 3 SCR 689 had differed from the view taken by an earlier Division Bench of two Judges in Motilal Padampat Sugar Mills v. State of U.P. [1979] 2 SCR 641 on the point whether the doctrine of the promissory estoppel could be defeated by invoking the defence of the executive necessity, and holding that to do so was wholly unacceptable; the reference was made to the well-accepted and desirable practice of the later Bench OWP no.152/2012 Page 42 of 47 43 referring the case to a larger Bench when the learned Judges found that the situation called for such reference.

36.From the above verbose discussion, I am of the opinion that a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or a smaller number of the Judges, and in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of the Court. Be that as it may, the contention of the learned counsel appearing on behalf of the respondents, that as the petitioners were not party in the writ petition, cited and relied upon by the learned counsel for the petitioners, the judgment rendered therein does not draw a parallel with them, is specious and phoney. It is not necessary in law that the petitioners or for that matter the parties hereunto this controversy should have been parties in the aforesaid cases. It is well settled law that generally legal positions laid down by the Court would be binding on all concerned even though some of them have not been made parties nor were served nor any notice of such proceedings given. The subject-matter of instant writ petition is in all fours akin to writ petition, bearing OWP no.47/2013 titled Mohd Ashraf Sofi and others v. State of J&K and others, which has been dealt with and put at rest by the Coordinate Bench of this Court by judgement dated 09.12.2013. Not only this, the aforesaid judgement has been implemented by the respondents. In such circumstances, the respondents cannot use different yardstick and benchmark vis-à-vis the present petitioners.

37.During the course of the argumentation, one more debateable contention came about for discourse that the judgement and order dated 09.12.2013 rendered by the learned Single Judge in OWP no.47/2013 titled Mohd Ashraf Sofi and others v. State of J&K and others, is per OWP no.152/2012 Page 43 of 47 44 incuriam and also sub silentio. This assertion requires survey of the expression "per incuriam". According to the Black's Law Dictionary (Fourth Edition, 1891), per incuriam, means through inadvertence. The word 'incuria' literally means 'carelessness', as observed by the House of the Lords in Young v. Bristol Aeroplane Company Limited (supra). In practice per incuriam appears to mean per ignoratium. The purport of the doctrine of per incuriam is that a decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute, or of a rule having the force of a statute. Lord Godard, C.J., in Huddersfield Police Authority v. Watson, 27 (1947) 2 All ER 193 observed that where a case or statute had not been brought to the court's attention and the court gave the decision in ignorance or forgetfulness of the existence of the case or statute, it would be a decision rendered in per incuriam. 'Per incuriam' means 'through want of care'; a decision of the court which is mistaken. A decision of the court is not a binding precedent if given per incuriam, that is, without the Court's attention having been drawn to the relevant authorities or the statutes. The 'per incuriam' rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta. An important caveat that is required to be borne in the mind at all times is that the non-reference of the earlier decisions in the judgment does not indicate non-consideration of those cases in the judgment. A decision/judgment can be per incuriam, when any provision in a statute, rule or regulation, was not brought to the notice of the court. A decision/judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a co-equal or larger bench; or if the decision of a High Court is not in consonance with the views of the OWP no.152/2012 Page 44 of 47 45 Supreme Court. It is a settled rule that if a decision has been given per incuriam, the Court can ignore it.

38.In the case of Buta Singh v. Union of India (1995) 5 SCC 284, it was held that, when a two-judges Bench without noticing or ignoring the binding decision of a three-judges Bench renders a decision, then such a decision is per incuriam. Similarly, in the case of K.H. Siraj v. High Court of Kerala (2006) 6 SCC 395, it was held that, when a decision is rendered by the High Court without having regard to the relevant line of decisions rendered by the Supreme Court, then such a decision of the High Court is per incuriam. In the case of Punjab Land Development & Reclamation Corporation Ltd. v. Presiding Officer, Labour Court (Chandigarh) (1990) 3 SCC 682, it was held that the problem of judgment per incuriam when it actually arises should present no difficulty as the Supreme Court of India can lay down the law afresh, if two or more of its earlier judgments cannot stand together. It is important to note that the non-consideration of an irrelevant provision cannot make the ratio of the decision per incuriam. In the case of Fuerst Day Lawson Ltd. v. Jindal Exports Ltd, (2001) 6 SCC 356, it was held that unless it is a glaring case of obtrusive omission, it is not desirable to depend on the principle of judgment per incuriam; it has to be shown that some part of the decision was based on a reasoning which was demonstrably wrong, for applying the principle of per incuriam. Thus, an order delivered without argument, without reference to the relevant provisions of the Act and without any citation of authority is per incuriam. In the case of Jai Singh v. M.C.D. (2010) 9 SCC 385, it was held that, judicial discipline and propriety demands that, there should be consistency in the views as regards the decisions rendered by co-equal benches on the same issue; however, OWP no.152/2012 Page 45 of 47 46 subsequent bench is to follow the decision rendered by the earlier Coordinate Bench.

39.It is important to take note of the ratio laid down in the case of K.G. Derasari v. Union of India (2001) 10 SCC 496. In this case the Supreme Court categorically observed that if the tribunal has not looked into the previous decision of the Supreme Court which is the law of the land and by which it was bound, the remedy available to the aggrieved person was to file an application for review. In the case of Chandra Prakash v. State of U.P. AIR 2002 SC 1652, it was held that in case a two-judge Bench finds fault with the decision rendered by a three-judge Bench, then, in that case, the two-judge Bench must restrain itself from referring the matter to the Constitution Bench, as judicial discipline and propriety as also the doctrine of binding precedent demands that a two-judge Bench must follow the decision given by a three-judge Bench. The analysis of English and Indian Law clearly leads to the irresistible conclusion that not only the judgement of a larger strength is binding on a judgement of smaller strength but the judgement of a co-equal strength is also binding on a Bench of judges of co-equal strength. Having said so, the doctrine of binding precedent is of the utmost importance in the administration of our judicial system. It promotes the certainty and consistency in the judicial decisions. The judicial consistency promotes the confidence in the system, therefore, there is this need for consistency in the enunciation of legal principles in the decisions of the Court.

40.From the above effusive survey, it is luculent that a judicial decorum and discipline is paramount and, therefore, a Coordinate Bench has to respect the judgments and orders passed by another Coordinate Bench and a pronouncement of law by a Division Bench of the Court is OWP no.152/2012 Page 46 of 47 47 binding on a Division Bench of the same or a smaller number of Judges as well, and in result such decision rendered in OWP no.47/2013 titled Mohd Ashraf Sofi and others v. State of J&K and others, shall hold good qua the present case as well.

41.The cumulative effect of all that has been said and done above, is that the writ petition on hand is disposed of, and impugned Award dated 10.12.2010 bearing endorsement no.C/CRP/632-40 issued by the Collector, Circular Road Project, Srinagar, is quashed. The respondents 3 to 7 are directed to submit the case of the petitioners to the High Level Committee, headed by the Divisional Commissioner, Kashmir, for fixation and payment of adequate compensation for the building structures and in terms of the package related to such structure in the form of providing residential plots for dislocated families. The respondents shall also pay compensation in lieu of the shops acquired from the petitioners on the analogy of similarly situated shopkeepers. The petitioners' case shall be submitted by respondents 3 to 7 to the High Level Committee within a period of three weeks from the date copy of this order is served upon the Deputy Commissioner, Srinagar and the Collector, Circular Road Project, Srinagar. The Divisional Commissioner, Kashmir - respondent no.2, shall take a decision in light of the directions for payment of adequate compensation and for providing the plot of the land in favour of the petitioners within a period of two months thereafter.

42.The record be returned to the learned counsel for the respondents.

( M. K. Hanjura ) Judge Srinagar 20.03.2018 Ajaz Ahmad OWP no.152/2012 Page 47 of 47

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