Jammu & Kashmir High Court - Srinagar Bench
Shakeeb Qureshi vs Union Of India And Others on 3 October, 2018
Author: M. K. Hanjura
Bench: M. K. Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
OWP No. 1125/2014
Date of Order: 03.10.2018
Shakeeb Qureshi
Vs.
Union of India and Others
Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge
Appearance:
For petitioner(s): Mr R. A. Jan, Sr. Advocate with MsSharaf, Advocate
For respondent(s): Mr T. M. Shamsi, ASGI
Mr Asif Maqbool, GA vice Mr N. H. Shah, AAG.
i/ Whether to be reported in Yes/No
Press/Media?
ii/ Whether to be reported in Yes/No
Digest/Journal?
1. The background facts of the instant petition are that the petitioner is the owner of the land measuring 3 Kanals and 8 Marlas falling under Khasra No. 854, 854/1 and 869, situated at Harwan, Srinagar. Out of this land a portion of it measuring 2 Kanals is situated within an area of 100 meters from the boundary of the Ancient Monastery and Stupa at Village Harwan, and therefore, falls within the "Prohibited Area" under and in terms of the Ancient Monuments and Archeological Sites and Remains Act, 1958(24 of 1958) and, as such, allowing any kind of activity including the establishment of a Sheep Farm thereon, which the petitioner intended to establish, would be detrimental to the preservation of the Ancient Monastery and Stupa situated at New Theed Harwan.
2. Taking these facts into consideration, this chunk of land was acquired by the Archeological Survey of India. In the process of the acquisition, the possession of the land was taken by the department on the request of the petitioner, after taking resort to Section 17 of the Land Acquisition Act, but without complying with the mandate of Section 17 (A) Land Acquisition Act. The Records revealthat on the representation of the petitioner in the matter, the competent authority initiated the process for the assessment of compensation payable to the OWP No. 1125/2014 Page 1 of 8 petitioner in law on account of the Acquisition of his Proprietary Land measuring 2 Kanal falling under Khasra No. 854, 854/1 and 869 situated at Harwan, Srinagar, and that a sum of Rs. 46.00 lacs was assessed as compensation due and payable to the petitioner on accountof the expropriation of the above mentioned proprietary. Inspite of the fact that the compensationamount has been already sanctioned with further directions commanding the respondent Nos. 4 to 7 to have the sanctioned amount of compensation deposited with respondent No. 8 to facilitate timely payment of compensation to the petitioner, the respondent Nos. 4 to 7 have been without any reason dragging feet in the matter obviously for extraneous considerations procrastinating the payment of sanctioned amount of compensation to the petitioner, which is his legitimate due as a matter of Constitutionally Guaranteed Right.
3. The intentional delay on the part of respondent No. 4 in particular, in proceedings in the matter in accordance with the mandate of the competent authority sanctioning the payment of the assessed compensation amount to the petitioner is borne from the records. The sanction accorded for the payment lapsed,as a consequence of which, the petitioner had to approach the competent authority again to have the sanction for payment of compensation renewed/revalidated which was accordingly done as is evident from the orders dated 20.06.2014 and 23.06.2014. Despite this fact, the respondent Nos. 4 to 7 in particular respondent No. 4 have failed to do as was required to be done in faithful compliance with the orders of the competent authority dated 20.06.2014 and 23.06.2014 to facilitate respondent No. 8 release/disbursement of sanctioned compensation amount in the sum of Rs. 46.00 lacs to the petitioner.
4. In the objections field by the respondent No. 8-Collector Land Acquisition (Deputy Commissioner), Srinagar, it is stated that an indent was placed before the respondent Collector Land Acquisition by Archaeological Survey of India (Government of India) vide No. 8124/94-4-7450 dated 31.1.2014 for the land OWP No. 1125/2014 Page 2 of 8 measuring 2 Kanals under Khasra No. 854, 854/1 & 869 situated at village Harwan owned by the petitioner. Accordingly, the process under J&K Land Acquisition Act was initiated and the intending department was requested by the respondent office to deposit the tentative amount of Rs. 46.00 lacs for the said piece of land. The intending department, therefore, deposited the tentative amount in the account Head of District Collector. Finally, the Private Negotiation Committee (PNC) met under the Chairmanship of District Collector and Additional Deputy Commissioner, Assistant Commissioner (Revenue) in the view and the presence of the petitioner. In the said meeting, after thorough discussion, the petitioner was offered an amount of Rs. 30.00 lacs for 2 Kanals (Rs. 15 lacs per Kanal) taking into consideration the classification of soil recorded as "Banjri Kadeem". The petitioner agreed and accepted the said amount in presence of the witnesses produced by him. The copy of award is enclosed herewith as Annexure R1. The petitioner also agreed to accept the offered compensation and executed the sale deed for the said piece of land in favour of the Government. Copy of the sale deed is annexed herewith as Annexure R2. The process for returning the remaining amount of Rs. 16.00 lacs to the intending department is going on.
5. In the objections field by the respondent Nos. 1 to 7, it is stated that the funds allotted to the tune of Rs. 46.00 lacs (Rupees forty six lacs only) under Major Head 4202-Capital Outlay on Education, Sports, Art and Culture, 04-Art and Culture, 04.107-ASI, 01-Building, 01 00 53-Major Works (Plan) to Archaeological Survey on India, Srinagar Circle, Jammu, during the financial year 2013-14 have been surrendered on 28.03.2014. The above said contentions are demonstrated in Annexure-R21. The provisions of Section 20 of the Ancient Monuments and Archaeological Sites and Remains Act, 1958, are meant for acquisition of land of protected area and not of the prohibited area. The piece of land under reference is under prohibited area, which is quite different and separate from protected area.
OWP No. 1125/2014 Page 3 of 8Throughout the length and breadth of the whole country such prohibited areas exist and there are not yet any established norms and rules to acquire such adjoining land covered under prohibited area.
6. It is further submitted that the process of land acquisition was not initiated under Section 20 as already stated in the preceding para. The Archaeological Survey of India was never interested to acquire the land of the petitioner earlier; and it was petitioner who approached the Minister of Culture with his representation to acquire his land falling in the prohibited are. The representation was forwarded by the Ministry of Culture to the Office of the Director General, Archeological Survey of India, Janpath, New Delhi and to take action as per rules. Subsequently, therefrom to the office of Superintending Archaeologist and the then Superintending Archaeologist had commented that "on ground the land is undulated rocky surface having multiple water channels coming from the upwards Mahadev Hill and do not suggest any commercial use. As decision in this regard may plea be taken, keeping in view of the fact that in future many such proposals may come for the compensation of the lands located in the prohibited and regulated area of the monument".Self-contained note forwarded No: 8/24/94-M-02 dated 01.04.2013.
7. It is further submitted that the amount of compensation of Rs. 46.00 lacs has been deposited with the respondent No. 8-Collector Land Acquisition (Deputy Commissioner), Srinagar, vide Bank Draft No. 010013009321/559186 dated 07.08.2014, by the Canara Bank, Shalimar Road, Jammu, in compliance to the order dated 18.07.2014 of this Court in OWP No. 1125/2014, IA No. 1767/2014 in the case of "Shakeeb Qureshi v. Union of India and Others".
8. Heard and considered.
9. Right to hold, possess and occupy immovable property continues to be a fundamental right in the State of J&K and the respondents in particular respondent Nos. 4 to 7 were under corresponding Constitutional Obligation rather duty bound in law to assess and to pay the just compensation payable in OWP No. 1125/2014 Page 4 of 8 law for acquisition of the immovable property without any unwarranted, uncalled for and unnecessary delay for any such act or conduct is frowned upon by law as an affront to the very mandate of Constitutional Guarantees guaranteed to the petitioner under Article 19(1) (f) of the Constitution of India as applicable to the State of Jammu and Kashmir.
10. Vide communication bearing No. 125/DCS/SQ/Misc. dated 24.09.2013, addressed by the Additional Deputy Commissioner, Srinagar, to the Superintending Archeologist (ASI) Srinagar Circle, running under the subject "Compensation for acquisition of land adjacent to the Buddhist site Harwan, a centrally protected site of Archeologist Survey of India in District, Srinagar (J&K)-reg.", it is stated as under:
"Kindly refer letter No. 8/24/94-M-3004 dated 13.09.2013, regarding the subject cited above. In this connection, it is requested that as per the notification issued vide this office No. 22096-3007/DCS/SQ/Misc dated 30.03.2013, the stamp duty rate for land of Shakeeb Qureshi S/o Ab. Rahim Qureshi R/o Harwan, measuring 02 Kanals situate in estate Harwan under Khasra Nos. 854, 854/1-859 adjacent to Buddhist site Harwan Srinagar for the year 2013-14 for estate is Rs. 46 lacs @ 23 lacs Per Kanal."
11. Vide another letter bearing No. DCS/LAS/1805/1136 dated 15.02.2014, addressed by Additional Deputy Commissioner, Srinagar to Superintending Archaeologist Government of India, Archaeological Survey of India, Circle Srinagar (Jammu), running under the subject "Acquisition of 2 Kanals of land adjacent to the Buddhist site Harwan, a Centrally Protected site of Archaeological Survey of India in District Srinagar", it is conveyed as under:
"Kindly refer to your office communication bearing No. 8/24/94-M-7450 dated 31.01.2014 received from your office regarding the aforementioned subject. The case for acquisition of said land is under process in this office, you are in the meantime, requested to deposit the tentative amount of compensation to the tune of Rs 46.00 lacs in this official account Head "Revenue Head 8443" to enable this office to issue the final award in favour of the rightful owner as per norms."
12. By another correspondence bearing No. 8/24/94-M-7762 to 7765, dated 17.02.2014, addressed by the Superintending Archaeologist to the Additional Deputy Commissioner, Srinagar, which runs under the head "Acquisition of 2 Kanals of land adjacent to the Buddhist site Harwan, a Centrally Protected site OWP No. 1125/2014 Page 5 of 8 of Archaeological Survey of India in District Srinagar (J&K) by the Archaeological Survey of India through its Srinagar Circle Office-reg.", the following has been disclosed: -
"Reference your communication No. DCS/LAS/1805/1136 dated 15.02.2014, on the subject aforementioned subject, wherein you have desired this office to deposit the tentative compensation amount of Rs. 46.00 lacs in your official account Head "Revenue Head 8443" you are requested to inform this office as to in whose name the compensation amount (Demand Draft) is required to be deposited; whether Deputy Commissioner, Srinagar, or any other designation/name etc."
13. Vide another revelation bearing No. 8/24/94-M-3138 dated 7th August, 2014, addressed by the Superintending Archaeologist (I/d) to the Collector Land Acquisition (Deputy Commissioner), Srinagar (J&K), respondent No. 8, running under the head "Placing of the amount of compensation of Rs. 46.00 lacs in compliance of Court order dated 18.07.2014 in OWP No. 1125/2014 IA No. 1767/2014 in the matter of Shakeeb Qureshi v. Union of India and Others- reg.", the following was put across: -
"With reference to above mentioned subject, I am depositing herewith the amount of compensation of Rs. 46.00 lacs (Rupees Forty Six Lacs only) through Bank Draft No: 010013009321/559186 dated 07.08.2014 issued by the Canara Bank, Shalimar Road, Jammu at your disposal (who is the respondent No. 8 of the abovementioned case) in compliance of the court order dated 18.07.2014 in OWP No. 1125/2014 IA No. 1767/2014 in the matter of Shakeeb Qureshi v. Union of India and Others. Please acknowledge the receipt of the same so that the same can be filed along with affidavit before the Hon'ble High Court, Jammu and Kashmir, Srinagar."
14. After the deposit of the compensation before the Deputy Commissioner, Srinagar, in lieu of the aforesaid acquisition, it is stated that adecision byprivate negotiation was taken on a date apparently suspect, when tested on the anvil of the material on record in the form of "Annexure-A", attached to the writ petition, furnishing the clinching evidence of the fact that the compensation amount as per the prevalent market rate in the area in which the land is situate decided already way back in January, 2014, was not only assessed by the revenue authorities at the rate of Rs. 46.00 lacs but even intimated to the respondent Nos. 1 to 3. The contention of the petitioner is that this document is tainted with the vice of fraud perpetrated by the revenue agencies to denude and OWP No. 1125/2014 Page 6 of 8 deprive him of his legitimate due on account of just compensation due and payable for expropriation of his proprietary land situated at Harwan Srinagar.In its decisiontaken on 15th October, 2014 at 2.00 pm, it is stated that the private negotiation committee under the Chairmanship of the Deputy Commissioner, Srinagar, offered Rs. 30.00 lacs for 2 Kanals to the petitioner for the reason that the kind of soil of the land is "Banjri Kadeem". This decision even if it is assumed for the sake of arguments is correct runs in complete contradiction to Rules 20 and 23 of the Jammu and Kashmir, Land Acquisition Rules for public purposes. Rule 20 of the J&K, Land Acquisition Rules lays down as under:
"20. Initial proceedings when acquisition nis by private agreement:- On a requisition from the Head of the Indenting Department negotiations for acquisition of land by private agreement shall be conducted by a committee consisting of:-
(a) Deputy Commissioner of the district concerned;
(b) Member Legislative Assembly of the Constituent where the Land is situated;
(c) District Superintending Engineer;
(d) Executive Engineer concerned;
(e) concerned District Level Officer of the Intending Department;
(f) Chairman of the Notified Area Committee where the land is within the limits of a Notified Area.
Before initiating the negotiations, the Committee shall ascertain the maximum price which could be offered for land if acquired by private negotiation. Where the private negotiation with the interested person or persons i the land do not succeed, the Deputy Commissioner of the concerned district, who will be the convenor of the Committee, shall communicate the result of the negotiations to the Intending Department who may initiate proceedings for compulsory acquisition of land under the provisions of the Act".
Rule 23 of the J&K, Land Acquisition Rules provides as follows:
"Procedure for concluding a bargain in private negotiation:- The procedure to be followed in concluding bargain is as follows:-
(1) When land is to be acquired, and the Jamabandi entries for 12 years show an undisputable title, and the value of the land including structures does not exceed (Rs. 10 lakhs), the Committee shall be competent to acquire the land, For the land the value whereof exceeds (Rs. 10 lakhs), the Committee shall acquire the same only after obtaining the previous sanction of the:-
(a) Divisional Commissioner of the concerned division if the value exceeds (R. 10 lakhs) but does not exceed (Rs. 20 lakhs); and
(b) Revenue Minister if the value exceeds (Rs. 20 lakhs).OWP No. 1125/2014 Page 7 of 8
(2) While seeking sanction, the Committee shall submit to the Divisional Commissioner or Revenue Minister, as the case may be, a report with full details indicating the nature of the land, the person or persons interested in it, and the nature of their claims.
The report shall be accompanied by the proof of title of the land and a draft deed of sale. In case of any doubt about the title of the land and the sufficiency of the draft deed of sale, the law department may be consulted before the bargain is concluded."
15. The decision by private negotiation in this case is said to have taken by the Deputy Commissioner and the Assistant Commissioner, Srinagar, as the others whose designation has been spelt out in the said extract that are the representative of Archaeology, Survey of India and the Tehsildar (North), Srinagar, have not signed it. Rules 20 and 23 provide for the composition of the Committees that can hold a private negotiation and the decision by private negotiation, alleged to have been taken in the instant case, does not confirm and correspond to the requirements and the standards of the rules cited above, and therefore, the same can neither be accepted nor entertained for being against the rules.
16. Viewed in the context of what has been said and done above, the petition of the petitioner is allowed and the respondents in particular Nos. 4 to 7, are directed to place forthwith, in faithful and punctual execution of the Orders of the Competent Authority dated 27.03.2014 read with Order dated 20.06.2014 and 23.06.2014, the sanctioned amount of compensation in the sum of Rs. 46.00 lacs at the disposal of the respondent No. 8, who shall release and disburse the same in favour of the petitioner.
17. The writ petition is disposed of along with connected MP(s).
(M. K. Hanjura) Judge Srinagar 03.10.2018 "Manzoor"
OWP No. 1125/2014 Page 8 of 8