Bodh Raj vs State And Ors. on 14 November, 2017

[Cites 11, Cited by 0]

Jammu & Kashmir High Court

Bodh Raj vs State And Ors. on 14 November, 2017

1. By the present petition, petitioner inter alia is seeking writ of certiorari quashing the interpolation made in the award at serial No.34 and 35 and also seeking mandamus commanding the respondents to pay the compensation assessed under the award along with interest.

2. Deputy Commissioner, Kishtwar-respondent No.3 issued acquisition notice No.249-254/ACR/LA dated 15.09.2007 under Section 4(1) of the Land Acquisition Act, Svt. 1990, (for short the Act) for acquiring land measuring 51 Kanals 6 Marlas including the land falling under Khasra Nos. 595 and 596 owned by the petitioner, situated at Village Lachkhazna, Tehsil and District Kishtwar for construction of Deputy Commissioner Office at Kishtwar and in the said notice, stipulated time was fixed for filing objections if any, from the owners of the land mentioned in the notice. Respondents further processed acquisition proceedings under Sections 6, 4 and 17 of the Land Acquisition Act and the same was also published on 30.01.2008. Further notification under Sections 9 and 9(a) of the Act was also issued on 16.02.2008 whereby invited objections with regard to amount of compensation and measurement of land. However, OWP No.724/2012 Page 1 of 7 neither the land owners nor the petitioner had filed objections within the stipulated time. Accordingly, the Collector Land Acquisition, Kishtwar i.e., respondent No.3 after completion of all procedural requirement issued an award in the sum of Rs.2,36,09,500/- (Two Crore Thirty Six Lacs Nine Thousand and Five Hundred only). A certificate has been recorded that the payment of compensation of land will be made in accordance with the provisions of Agrarian Reforms Act, 1976 and Circular instructions issued under LB-10 of 1980 dated 23.02.1980. The land owned by the petitioner under Khasra Nos. 595 and 596 measuring 4 Marlas each was also acquired for public purpose i.e., for construction of the office of Deputy Commissioner, Kishtwar. The entries made in the revenue record as obtained from field book indicates that Bodh Raj (petitioner) is a shareholder of land under Khasra No.595 and 596 which has been acquired and compensation assessed. However, during finalization of award respondent No.3 had noticed that one of the land owner i.e. the petitioner has managed his exclusive Girdawari in cultivation column in the year 1985 which seems to have been carried forward by the field staff till 2008. These facts have been discussed in the report of field staff which prohibited by law as there were no orders from the competent officer like Tehsildar/Collector. The report envisages that the petitioner has got himself recorded in the cultivation column exclusively contrary to the position of land in 1984, hence respondent No.3-Collector Land Acquisition, Kishtwar presuming it that there is a violation of Agrarian Reforms Act or LB-10 of 198 dated 23.02.1980, therefore, the Collector came to the conclusion that petitioner is not entitled to compensation, the same has been escheated to state.

3. Respondents have filed the objections, strenuously resisting the writ petition.

OWP No.724/2012 Page 2 of 7

4. Heard learned counsel for the parties and considered their submissions.

5. Learned counsel for the petitioner contends that the Deputy Commissioner, Kishtwar requisitioned land for construction of new Deputy Commissioner office at Kishtwar and as per the award dated 14.08.2009, 51 Kanals of land was acquired. In terms of the award, compensation was fixed @ Rs. 4 lacs per Kanal.

6. The land owned by the petitioner measuring four Marlas under survey No.595 and four Marlas under survey No.596 was shown as acquired in the award dated 14.08.2009 and the name of petitioner figures at S.No.34 and 35 in the award. Further, the petitioner is also shown as the shareholder of land at S.No.43 with respect to Khasra No.4856 measuring 03 Kanals 06 Marlas in the same award but the respondents refused to pay the compensation to the petitioner for the land acquired by the respondents in terms of the final award and to this extent, petitioner also represented Deputy Secretary to Hon'ble the Chief Minister alleging allegations against respondent No.2 that he is unfairly delaying the payment of compensation.

7. It is the case of the petitioner that addition made at S. No.34 and 35 by respondent No.2 by hand under his initial mentioned that "Escheated to state for violation of LB-10 as Kasht stands changed by deleting the name of Bidya Lal without competent orders". It is averred that the award passed in 2009 did not contain such addition, but respondent No.2 with malafide intention incorporated the addition after the award was published. Petitioner further contends that the Collector Land Acquisition becomes functus Officio, once the award is published, respondents have no right to review or change the award either with respect to rate of compensation, entitlement of compensation or apportionment. Petitioner also contends that the possession of one member of the family is personal OWP No.724/2012 Page 3 of 7 cultivation of the other member in terms of Agrarian Reforms Act, as such there is no question of deleting the name of deceased brother.

8. Per contra, learned counsel for the respondents raised preliminary objections with regard to maintainability of writ petition as well as entitlement of compensation by contending that if there is dispute pertaining to apportionment of compensation, same can be resolved by seeking a reference under Section 31 of the Land Acquisition Act, therefore, he states that in view of the efficacious remedy available to the petitioner, this petition is not maintainable.

9. To strengthen his arguments further, learned counsel for the respondents has relied upon decisions rendered by the Supreme Court in Raja Harish Chandra Raj Singh Vs. Deputy Land Acquisition Officer, 1961 AIR (SC) 1500 and Bhagwan Das and ors. Vs. State of UP and ors., 2010 (2) Supreme 99.

10. Admittedly, petitioner has not filed objection against the notification issued under Sections 4, 9 and 9(a) of the Land Acquisition Act. During finalization of award, the field staff has pointed out that petitioner has managed to his exclusive Girdawari in cultivation column in the year 1985 and same has been carried forward by the field staff till 2008, therefore, the Collector presuming it that the same is violation of Agrarian Reforms Act or LB-10 of 1980. The Collector, therefore, came to the conclusion that the petitioner is not entitled to any compensation and same is escheated to state.

11. Without going to the merit of the case, I will consider and deal with preliminary objections raised by the respondents with regard to maintainability of writ petition and it would be appropriate to refer Section 31 of the Act hereunder:-

OWP No.724/2012 Page 4 of 7

"31. Dispute as to appointment.-When the amount of compensation has been settled under Section 11, if any dispute arises as to the apportionment of the same or any part thereof or as to the persons to whom the same or an part thereof is payable, the Collector may refer such dispute to the decision of the Court."

12. Perusal of above Section reveals that if any dispute arises, the dispute has to be referred to decision of the Court.

13. The Supreme Court in Ramniklal N. Butta and anr. Vs. State of Maharashtra and ors., (1997) 1 SCC 134, while cautioning the High Courts in interfering with the land acquisition proceedings, observed and held that "Our country is now launching upon an ambitious programme of all-round economic advancement to make our economy competitive in the world market. We are anxious to attract foreign direct investment to the maximum extent. We propose to compete with china economically. We wish to attain the pace of progress achieved by some of the Asian countries, referred to as "Asian tigers", e.g., South Korea, Taiwan and Singapore. It is however, recognized on all hands that the infrastructure necessary for sustaining such a pace of progress is woefully lacking in our country. The means of transportation, power and communications are in dire need of substantial improvement, expansion and modernization. These things very often call for acquisition of land and that too without any delay. It is, however, natural that in most of these cases, the persons affected challenge the acquisition proceedings in courts. These challenges are generally in shape of writ petitions filed on High Courts. Invariably, stay of acquisition is asked for and in some cases, orders by way of stay/ injunction are also made. Whatever may have been the practices in the past, a time has come where the courts should keep the larger public interest in mind while exercising their power to grant stay/injunction. The power under Article 226 of the Constitution of India is discretionary. It OWP No.724/2012 Page 5 of 7 will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. And in the matter of land acquisition for public purposes, the interest of justice and the public interest coalesce. They are very often one and the same. Even in civil suit, granting of injunction or other similar orders, more particularly of an interlocutory nature, is equally discretionary. The Courts have to weigh the public interest vis-à-vis the private interest while exercising the power under Article 226 indeed any of their discretionary powers.......There are many ways of affording appropriate relief and redressing a wrong; quashing the acquisition proceedings is not the only mode of redress. To wit, it is ultimately a matter of balancing the competing interests. Beyond this, it is neither possible nor advisable to say. We hope and trust that these considerations will be duly borne in mind by the courts while dealing with challenges to acquisition proceedings."

14. In the present case, the relief prayed for by the petitioner seeking certiorari quashing the interpolation made in the award at serial No.34 and 35 and also seeking compensation against the land owned by the petitioner and acquired by the respondents. Further questioning Final Award and subsequent proceedings of execution.

15. A Division Bench of this Court in case titled Chenab Textile Mills Kathua J&K v. Sat Paul, 2016 (II) SLJ 621 (HC) held that after the final award was passed, no writ petition could be filed challenging acquisition notice or against any proceedings thereunder and that it is consistent view of the Supreme Court that once award is passed in land acquisition proceedings, the notification as well as the declaration cannot be challenged.

OWP No.724/2012 Page 6 of 7

16. For all what has been discussed above, writ petition is devoid of any merit and is, accordingly, dismissed along with connected MPs. However, petitioner is at liberty to avail appropriate remedy if any, available under law.

Jammu                                                          (Tashi Rabstan)
14.11.2017                                                          Judge
Surinder-II




OWP No.724/2012                                                          Page 7 of 7

Unlock Advanced Research with PRISMAI

Jammu & Kashmir High Court