Jammu & Kashmir High Court
Union Of India Through Home Secretary vs Shanti Devi on 15 December, 2023
Bench: Sanjeev Kumar, Rahul Bharti
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on : 25.08.2023.
Pronounced on : 15.12.2023.
Case:- LPA No. 215/2019
CM No. 6698/2019
1. Union of India through Home Secretary, Ministry of Defence,
Government of India, New Delhi.
2. Defence Estate Officer, Udhampur Circle, Udhampur.
.....Appellants
Through: Mr. Vishal Sharma, DSGI
Vs
1. Shanti Devi, Wd/o Madan Singh, R/o Dranga, Tehsil Bhaderwah,
District Doda (J&K).
2. Collector Land Acquisition (SDM), Bhaderwah.
..... Respondents
Through: Mr. Ankush Manhas, Advocate
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
JUDGEMENT
Per Rahul Bharti-J:
01. Vide an award no. 244-46/LAC dated 17.09.2003, the Collector Land Acquisition (SDM), Bhaderwah came to acquire 33.16 kanals of land situated in village Drangla, tehsil Bhaderwah.
The acquisition process had originated on the requisition of Defence Estates Officer, Northern Command - appellant no. 2 herein submitted vide letter no. JL/43/REQ/DEO dated 17.08.1998. The land acquisition exercise came to take place under the J&K Land 2 LPA No. 215/2019 Acquisition Act, Svt., 1990. A public purpose was construction of an army road from Drudhu to Bhalara in village Kondhra, tehsil Bhaderwah.
02. The respondent no. 1 herein - Shanti Devi had come forward with a writ petition OWP no. 354/2013 instituted before this Court wherein she had impleaded the appellant no. 2 as well as revenue establishment of the then State of Jammu & Kashmir as party respondents for seeking a mandamus unto them to consider her case for payment of compensation regarding fruit bearing trees destroyed in the construction of road from Drudhu to Bhalara.
03. This writ petition came to be disposed of without adjudication on merits by a simple direction to consider her claim in a time bound manner with liberty reserved to re-agitate the matter if any cause of action available pursuant to said direction. The disposal of the said writ petition OWP no. 354/2013 in the aforesaid manner had taken place in terms of an order dated 14.03.2013.
04. A time barred letters patent appeal LPAOW no. 10/2015 came to be preferred against the said order dated 14.03.2013 by the appellant no. 1 herein which came to be disposed of in terms of an order dated 16.03.2015 by holding that there was no reason to condone the delay and, therefore, the said letters patent appeal was dismissed as being time barred.
3 LPA No. 215/2019
05. The direction as given in the writ court order dated 14.03.2016 in the respondent no. 1's writ petition OWP no. 354/2013 resulted in a purported exercise at the end of the horticulture department officials concerned which came up with a purported finding that the fruit bearing trees had suffered loss to the tune of Rs. 2,69,520/- and based thereupon the appellant no. 2 came to be directed by the Collector Land Acquisition (SDM), Bhaderwah to deposit the assessed amount of Rs. 2,69,520/-as early as possible for making the payment to the respondent no. 1 herein - Shanti Devi.
06. To this communication of the Collector Land Acquisition (SDM), Bhaderwah, the appellant no. 2 did not come in response, as such, the respondent no. 1 - Shanti Devi came forward with a second writ petition OWP no.479/2015 thereby seeking a direction to the appellant no. 2 to deposit a sum of Rs.2,69,520/- along with interest @ 10% from the date of taking of possession of the land i.e. in the year 1996 till the actual payment of the said amount.
07. The basis for allowing such claim by the respondent no. 1 in her writ petition was the so-called assessment made by the Horticulture Department pursuant to the direction given in an order dated 14.03.2013 in the respondent no. 1's first writ petition OWP No. 354/2013.
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08. The writ petition OWP no. 479/2015 came to be allowed by the writ court with a direction to the appellant no. 2 herein to release the said amount of Rs. 2,69,520/- within a period of six weeks failing which the payment of the said amount was to take place @ 10 % interest from the date of taking of the possession till actual payment made. The disposal of the writ petition OWP no. 479/2015 in the aforesaid manner came to take place in terms of a judgement 13.09.2018 which left the appellants herein aggrieved and are, therefore, in the present letters patent appeal ("LPA" in short).
09. Heard learned counsel for the appellants as well as for the respondent no.1. Perused the pleadings both of writ petition and present LPA and the documents annexed therewith.
10. Before we proceed further, we reckon that the source of the present litigation is an order dated 14.03.2013 of the writ Court passed in respondent no. 1's writ petition OWP no. 354/2013 and that needs to be first taken note of and the same is accordingly reproduced as it is for facility of reference:-
"This writ petition along with connected CMPs is disposed of and respondents are directed to consider the case of the petitioner for payment of compensation as it is stated that the fruit bearing trees got destroyed in the construction of the road from Drudhu to Bhalara.
Respondents to consider and take decision on claim of the petitioner in accordance with law within a 5 LPA No. 215/2019 period of eight weeks from the date copy of this order is served.
Petitioner is at liberty to re-agitate the matter on cause available."
11. Thus, there is no doubt to the fact that the disposal of the respondent no. 1's said writ petition OWP no. 354/2013 had taken place ex-parte against the writ respondents in the said writ petition which included the appellant no. 2 herein/respondent no. 4 therein. It is important to take note of the fact that the writ court in its order dated 14.03.2013 had made it clear that the consideration and decision of the claim of the petitioner was to be taken in accordance with law and the direction was mandated upon all the writ respondents. Therefore, it, clearly, meant that unless and until all the writ respondents are on the same page, no unilateral consideration and decision on the part of any one of these writ respondents in the said writ petition was to have any legal and binding effect.
12. It is the respondent no. 1 who had solicited the disposal of the writ petition OWP no. 354/2013 in the said manner and, therefore, cannot be said to have claimed any merit based direction or adjudication in her favour endorsing her alleged writ claim in said writ petition OWP no. 354/2013.
13. Thus, on what basis the Collector Land Acquisition (SDM), Bhaderwah came to take upon himself a unilateral exercise to come 6 LPA No. 215/2019 up with a communication no. LAC/13/505-06 dated 27.07.2013 asking the appellants, particularly the appellant no. 2 herein, to make payment of Rs. 2,69,520/- in favour of the respondent no. 1- Shanti Devi is not to be found on the record of the case. Obviously, the Collector Land Acquisition (SDM), Bhaderwah operated the assessment, as purportedly made by the horticulture department establishment of Doda/Bhaderwah in which the appellant no. 2 was never invited to participate, and, therefore, the alleged enquiry exercise was an ex parte one against the appellant no. 2 all along.
14. Given the fact that the order dated 14.03.2013 in the respondent no. 1's writ petition had observed and mandated for consideration and decision to be in accordance with law, as such, it was incumbent upon the Collector Land Acquisition (SDM), Bhaderwah to have identified under which enabling provision of law he was coming forward with a decision that the respondent no. 1 had actually suffered loss of damage of trees, when such loss/damage occurred and why it was not reported and/or assessed at the time of acquisition etc., to make the appellant no. 2 liable for the payment of an amount of Rs. 2,69,520/- as compensation payable in favour of the respondent no. 1.
15. It is vide said communication no. LAC/13/505-06 dated 27.07.2013 that the Collector Land Acquisition (SDM), Bhaderwah had addressed the appellant no. 2 with a direction for deposit of 7 LPA No. 215/2019 compensation of said amount of Rs. 2,69,520/- as compensation of allegedly damaged fruit bearing trees but without disclosing under which provision of the Land Acquisition Act, Svt., 1990, after having passed the land acquisition award way back in September, 2003, the Collector Land Acquisition (SDM), Bhaderwah was deriving jurisdiction to hold and say that damage to the fruit bearing trees on the land of the respondent no. 1 had taken place.
16. From the perusal of communication no. LAC/13/505-06 dated 27.07.2013, it is not forthcoming as to whether the alleged numbers of fruit bearing trees were obtaining upon the land of the respondent no.1 which came to be acquired or that the said land was unacquired but the alleged trees thereupon had suffered damage in the process of construction of road from Drudhu to Bhalara.
17. Thus, without any factual basis whatsoever, a pecuniary liability of an amount of Rs. 2,69,520/- came to be generated against the appellant no. 2 in the name of a fictionalized loss and damage of fruit bearing trees of the respondent no. 1 dating back to 1996 and that fiction disguised as a fact came to be put into play at the end of the Collector Land Acquisition (SDM), Bhaderwah to favour of the respondent no. 1 so as to generate a liability and burden the appellant no. 2 to discharge the same entailing payment of an amount of Rs. 2,69,520/- out of public exchequer. 8 LPA No. 215/2019
18. The spuriousness of the claim of the respondent no. 1 is exposed from the fact that when the amount of Rs. 2,69,520/- was directed to be payable at the interest reckoning from the date of dispossession in 1996, then it was meant it was prior to 1996 that the alleged loss or damage to the fruit bearing trees had taken place. If we reckon that the said loss and damage had taken place in the year 1996 then what made the respondent no. 1 to keep stay in slumber all along years even after having received or not the compensation for the land acquired from the respondent no. 2's end and to come to the High Court in the first round of litigation in the year 2013 with writ petition OWP no. 354/2013.
19. Mr. Vishal Sharma, learned DSGI appearing for the appellants is right in his submission that whatever might have been the claim of the respondent no. 1 with respect to the alleged loss and damage of fruit bearing trees upon her land acquired/unacquired ought to have been taken at the appropriate point of time corresponding and contemporary to the event of acquisition of her land, if any, acquired and not long after the event when there was no evidence whatsoever remaining to know and assess as to what was the nature and number of alleged fruit bearing trees standing upon the alleged land of the respondent no. 1 and how the damage/loss to the said alleged trees had taken place. 9 LPA No. 215/2019
20. Mr. Vishal Sharma, learned DSGI is right in his submission that perversity cannot have a footing in the eyes of law and, therefore, the exercise at the end of the Collector Land Acquisition (SDM), Bhaderwah in making the alleged assessment of loss/damage to the amount of Rs. 2,69,520/- was nothing but a perversity all along and, therefore, could not have been legitimized by the learned writ court by issuing a writ direction as given in the impugned judgement. Perversity at every stage of its play remains a nullity and, therefore, even if the learned writ court came to accord it an enforceability by a direction unto the appellant no. 2 to make the payment of Rs. 2,69,520/-, the same cannot be allowed to have its desired and directed effect.
21. We, therefore, hold that the judgment of the learned single judge dated 13.09.2018 is legally and factually misconceived and, therefore, deserves to be set aside holding that the respondent no. 1 to be not entitled to any such claim or compensation for the alleged loss/damage of fruit bearing trees upon her land.
22. We, therefore, allow the appeal filed by the appellants.
(RAHUL BHARTI) (SANJEEV KUMAR)
JUDGE JUDGE
JAMMU
15.12.2023
Muneesh
Whether the order is speaking : Yes
Whether the order is reportable : Yes