Mohamad Yaqoob Halwai & Anr vs State Of J&K And Others on 25 August, 2023

[Cites 3, Cited by 4]

Jammu & Kashmir High Court - Srinagar Bench

Mohamad Yaqoob Halwai & Anr vs State Of J&K And Others on 25 August, 2023

1) The petitioners claim that they jointly possessed a piece of land measuring 828 Sqft. under Survey No.2360/2022 situated at Safriyar Habba Kadal, Srinagar, and on the said land there existed a residential house that was being used by them jointly.

2) It is submitted that a notice was published by respondent No.2 in the newspaper on 24.08.2013 informing the petitioners and others to attend 212th High Level Committee meeting on 27th August, 2013, in connection with negotiations/deliberations for acquisition of aforesaid property for widening of the road. It was decided in the meeting that out of the land measuring 828 Sqft., land measuring 758.25 Sqft. would be acquired by the respondents for road widening and an amount of Rs.22.00 lacs was assessed as cost of the structure and land under and appurtenant to the structure. Besides this, an amount of Rs.20.00 lacs as OWP No.1371/2018 c/w CCP(S) No.258/2021 Page 1 of 7 cash in lieu of two plots, was also agreed to be paid during the negotiations, making the total amount payable to the petitioners as Rs.42.00 lacs. It has been submitted that after the aforesaid decisions of the High-Level Committee, a sale deed was executed by the petitioners in favour of respondent No.3 on 10.01.2014, whereby land measuring 758.25 Sqft falling in Survey No.2360/2022-min situated at Estate Habba Kadal Srinagar was sold to the official respondents for an amount of Rs.42.00 lacs, out of which the petitioners received 50% of the consideration amount. It was agreed that the balance amount shall be paid to the petitioners on demolition of the structure standing over the land in question.

3) According to the petitioners, after handing over and taking over of the land as well as demolition of the structure, they approached the official respondents for release of balance amount of sale consideration but the same was not released in their favour on the ground that brother of petitioner No.1 i.e. respondent No.4 herein, has filed a suit for declaration and injunction before the Court of learned Sub Judge (CJM), Srinagar, in which he had asked for reference of the matter to the competent court of jurisdiction under Land Acquisition Act. Although there was no stay order passed by the Civil Court against the release of balance amount of sale consideration in favour of the petitioners, however, the official respondents did not release the same in their favour. Accordingly, the petitioners have sought a direction upon respondent No.3 to release the balance 50% of the sale consideration in their favour. OWP No.1371/2018 c/w CCP(S) No.258/2021 Page 2 of 7

4) Respondents Nos.2 and 3, have in their reply to the writ petition, submitted that petitioner No.1 has already filed a civil suit for injunction which is pending disposal before the Court of learned 1 st Additional Munsiff, Srinagar. It has been submitted that even the brother of petitioner No.1, Nazir Ahmad Halwai (respondent No.4 herein) has also filed a civil suit for declaration and injunction questioning the land acquisition process. It has been submitted that because respondent No.4 has raised a dispute as regards the entitlement of the petitioners to receive whole of the compensation, as such, the balance payment has not been cleared in their favour.

5) Respondent No.4, was not initially impleaded as a party to the writ petition, but he was impleaded as party on the basis of an application made by him. He has filed a separate reply to the writ petition stating therein that he along with petitioner No.1 purchased land measuring 828 Sqft. along with three storeyed structure falling in Khasra No.2360/2022 from Prithvi Nath Sadoo, Makhan Lal Sadoo, Dr. Nial Kanth Sadoo and Brij Nath Sadoo by virtue of two registered sale deeds. On this basis, it is claimed that petitioner No.1 and respondent No.4 are co-owners of the property in question whereas petitioner No.2 has no right or interest in the said property. It has been submitted that petitioner No.1 and respondent No.4 are entitled to compensation in respect of the acquired property in equal shares but petitioner No.1 in connivance with petitioner No.2 managed to reflect their names in the revenue record as owners/possessors of the property in question to the exclusion of respondent No.4. It is claimed that on the basis of this fraud, an amount OWP No.1371/2018 c/w CCP(S) No.258/2021 Page 3 of 7 of Rs.21.00 lacs has been released in favour of the petitioners and when it came to the knowledge of respondent No.4, he produced the registered sale deed executed in his favour before the Collector. A complaint is also stated to have been filed by respondent No.4 against the petitioners before the Crime Branch, Kashmir, which has culminated in lodging of FIR No.59/2016. It has been also submitted that the civil suit filed by respondent No.4 before the Court of learned Sub Judge (CJM), Srinagar, has been dismissed on technical grounds and the same is subject matter of challenge in appeal before the Additional District Judge, Srinagar. It has been contended that the petitioners cannot seek release of whole of the compensation amount to the exclusion of respondent No.4 by playing fraud upon him. It has also been submitted that the petitioners have filed false affidavits before the Collector at the time of receiving 50% of the amount of compensation for which they are liable to be prosecuted.

6) I have heard learned counsel for the parties and perused the record.

7) The dispute between the petitioners and respondent No.4 is as regards their entitlement to the compensation agreed upon during private negotiations held by respondent No.3. While the petitioners claim that they are exclusive owners of the land and structure that has been acquired by the official respondents, respondent No.4 claims that he has purchased half portion of the acquired property from its erstwhile owners in terms of sale deed dated 12th August, 1985. According to the official respondents, as per the revenue record, it is the petitioners who are entitled to the compensation but respondent No.4 has produced copy of OWP No.1371/2018 c/w CCP(S) No.258/2021 Page 4 of 7 a registered sale deed dated 06.08.1985, which is being investigated by the Crime Branch, Kashmir.

8) Learned counsel for the petitioners has submitted that the suit filed by respondent No.4 has been dismissed by learned Sub Judge (CJM), Srinagar, and in the proceedings emanating from FIR lodged by respondent No.4 against the petitioners, they have been discharged by the criminal court. On this ground, it has been urged that respondent No.4 does not have any right to claim share in the compensation assessed in respect of the acquired property.

9) It is correct that the suit filed by respondent No.4 has been dismissed by learned Sub Judge (CJM), Srinagar, but a perusal of the judgment passed by the said Court reveals that the said suit has been dismissed on technicalities. The Civil Court has observed that the direction regarding reference of dispute to the District Court sought by the plaintiff/respondent No.4 cannot be passed and for the said purpose, the plaintiff has to approach the concerned Collector. Therefore, the Civil Court has not given any finding as regards the entitlement of respondent No.4 to the share in the compensation. Similarly, just because the petitioners have been discharged by the criminal court in a case arising out of the complaint filed by respondent No.4, it cannot be stated that the dispute as regards the entitlement of the parties to compensation has been determined.

10) The question that arises for consideration is as to what is the course open to decide the dispute as regards the entitlement of the OWP No.1371/2018 c/w CCP(S) No.258/2021 Page 5 of 7 petitioners and respondent No.4 to the compensation assessed by the Collector.

11) Section 31 of the J&K Land Acquisition Act provides that when amount of compensation has been settled under Section 11 of the said Act and a dispute arises as regards apportionment of the same as to the persons to whom the same is payable, the Collector may refer such dispute to the decision of the Court. As already stated, respondent No.4 is disputing the entitlement of the petitioners to whole of the compensation assessed for the acquired property and is claiming that he is entitled to half portion of the said amount being owner of one-half portion of the acquired property. The question as to whether respondent No.4 is entitled to one-half of compensation assessed by the Collector on the basis of private negotiations in terms of Section 11(6) of the Act and whether the claim of the petitioners that the sale deed relied upon respondent No.4 is fake and forged, can be decided only by the Reference Court once a reference is made by the Collector in terms of Section 31 of the Act.

12) Accordingly, the writ petition is disposed of with a direction to respondent No.3 that in case respondent No.4 or the petitioners approach the said Authority for reference of dispute as regards their apportionment and entitlement to compensation assessed, the same shall be referred by the Collector to the concerned Principal District Judge for adjudication on merits in accordance with law. The respondent Collector shall deposit the undisbursed compensation along with interest with the Reference Court.

OWP No.1371/2018

c/w CCP(S) No.258/2021 Page 6 of 7 CCP(S) No.258/2021

In view of the decision in the main writ petition, the order out of which instant contempt petition has arisen, has merged in the final judgment. Therefore, nothing further survives for consideration in this contempt petition. The same is, accordingly, disposed of.

(Sanjay Dhar) Judge Srinagar 25.08.2023 "Bhat Altaf, PS"

                   Whether the order is speaking:      Yes/No
                   Whether the order is reportable:    Yes/No




OWP No.1371/2018
c/w CCP(S) No.258/2021                                            Page 7 of 7

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Jammu & Kashmir High Court - Srinagar Bench