Jammu & Kashmir High Court - Srinagar Bench
Mohd Ashraf Sofi & Ors vs Midc And Ors. (2012) Insc 662 on 9 December, 2013
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR OWP no.47 of 2013 CMP no.91 of 2013 Mohd Ashraf Sofi & ors Petitioners State of J&K & ors Respondents !Mr. G. R. Tantray, Advocate ^Mr. H. A. Lone, AAG Honble Mr. Justice Ali Mohammad Magrey, Judge Date:09/12/2013 : J U D G M E N T :
1. The petitioners in this petition have sought issuance of writ in the nature of Certiorari for quashing the final awards dated 01.12.2012 passed by Collector, PHE / Circular Road Project, Srinagar, respondent no.5, in respect of structure under Engineering Mark R-1, R-9, R-28, 29-R1, 29-R2, 30-RA and 30-RB acquired for purposes of road widening from Fateh Kadal to Khankahi Moula, Srinagar. The petitioners have also prayed for a Mandamus to direct the respondents to (i) re-draw the awards in terms of market value @ Rs.70-80 lacs per kanal as determined by Tehsildar, North Srinagar as compensation for building structure and in terms of package related to such structures in the form of providing residential plots in Baghati Shoor @ per plot per dislocated family which are 19 in number; (ii) to pay compensation @ Rs.10.00 lacs in lieu of shops acquired from the petitioners, except petitioner no.2, who is a brain tumor patient claiming alternative shop site for his rehabilitation, on the analogy of compensation paid to shopkeepers of Meerak Shah KZ Road and on the analogy of respondent no.8 who is similarly situated with the petitioners and has been provided Rs.10.00 lacs in lieu of one shop and one plot of land. The petitioners have also prayed for a writ of prohibition for restraining respondents 3 to 7 from acquiring the left out land of the petitioners as the same has not been earmarked for road widening purposes.
2. The petitioners claim that their properties in the shape of residential houses, with some shops and land underneath thereto, situated at Fateh Kadal Khankahi Moula Road, Srinagar, were notified on 24.05.2001 by the Collector concerned under Section 4(1) of the Jammu and Kashmir Land Acquisition Act, Svt. 1990 (1934 AD) (hereinafter, for short, referred to as the Act). After the issuance of the aforesaid notification, it is stated that, private negotiations were held between the High Level Committee (HLC) and the petitioners. The first such meeting, styled as HLC no. 108, is stated to have taken placed on 08.01.2005; the second meeting, i.e., HLC no. 150, on 16.05.2009; and the third meeting, i.e., HLC no. 153, on 17.09.2009. The petitioners have given details of the package of compensation / rehabilitation offered to them in the HLC meetings in paragraphs 10 to 15 of the petition. However, it is stated that, the petitioners did not accept the offer being inadequate and unjust. It is stated that, thereafter, the declaration in terms of Section 6 of the Act, that the land is required for public purpose, was issued by the District Collector vide notification no. 33/DCS of 2011 dated 18.11.2011 and the Collector, Land Acquisition, PHE / Circular Road Project, was directed to take proceedings under Section 7 of the Act. It is also stated that, thereafter, notices under Sections 9 and 9-A of the Act were issued. It is the case of the petitioners that such notices were issued to only some of the petitioners detailed out in the facts narrated from paragraphs 7 (a to f) of the petition.
3. The petitioners further state that without considering their objections to the inadequate quantum of compensation offered to them pursuant to the negotiations, being not commensurate with the market value of land specified to be between Rs.70- 80 lacs per kanal by Tehsildar, North Srinagar, and offering of few plots of land to some of the petitioners, but not to all 19 affected families, the Collector / respondent no. 5 made tentative awards on 20.11.2012 followed by final awards dated 01.12.2012 in respect of the properties of the petitioners whereunder compensation @ 37 lacs per kanal instead of Rs.70-80 lacs per kanal, as had been specified by the Tehsildar, North Srinagar, as prevalent market value of the land, was assessed.
4. It may be mentioned here that this petition has been filed by 48 persons, constituting six groups of claimants stated to have been owners of the acquired properties. Each group is further stated to be comprised of different families / households. As per the averments made in the petition, petitioners 1 to 7 constitute one such group, comprising 4 families. Their property comprised one house with one shop located therein, run by petitioner no.2, together with land underneath and appurtenant thereto measuring 247 sq. ft. in Khasra nos. 324, 326/min situated in Mouza Habba Kadal. Their property was marked as Mark R-1. Petitioners 8 to 11, are stated to comprise of two families. Their property comprising one residential house with two shops and land underneath and appurtenant thereto measuring 236-3/4 sq. ft., under Khasra no. 326/min, was marked as Mark R-9. Petitioners 12 to 18 are stated to be forming another group. They are stated to comprise of three families, and owned one residential house with two shops and land measuring 418.75 sq. ft., under Khasra no.403/min, marked as Mark R-28. Petitioners 19 to 38 are stated to have owned one residential house with one shop with land measuring 418.75 sq. ft., under Khasra no.403/min. They are stated to comprise four families and their property was marked as 29-R1 and 29-R2. Similarly, petitioners 39 to 45 are stated to be comprised of three families. They owned one residential house with one shop and another half shop, situate on land measuring 210 sq. ft., under Khasra no. 403/min, marked as 30-RA. Petitioners 46 to 48 owned one residential house with one shop and another half shop situate on land measuring 210 sq. ft., under Khasra no. 403/min, marked as 30-RB. This group of petitioners is stated to comprise three families.
5. As per the averments made in the petition, the Collector has awarded the following compensation in respect of each of the aforesaid groups of petitioners / marked properties:
Petitioners 1 to 7 : Mark R-1 : Rs. 3, 82, 395.00
Petitioners 8 to 11 : Mark R-9 : Rs. 5, 52, 579.00
Petitioners 12 to 18 : Mark R-28 : Rs. 7, 25, 234.00
Petitioners 19 to 38 : Mark 29-R1 : Rs. 7, 33, 734.00
and 29-R2
Petitioners 39 to 45 : Mark 30-RA: Rs. 4, 80, 956.00
Petitioners 46 to 48 : Mark 30-RB : Rs. 4, 43, 256.00
6. As against the above, it is stated that during the course of the negotiations, the petitioners were offered the following packages:
Petitioners 1 to 7, Mark R-1:
(i) Their case is said to have been considered in HLC 108 and were offered package of Rs. 3,30,000.00 without any compensation for the shop that was run by petitioner no.2. Further, no plot of land was offered to them. It is stated that they did not accept the offer which annoyed the members of the HLC and, consequently, their case was not considered in the subsequent HLC meetings, namely, HLC 150 and HLC 153;
Petitioners 8 to 11, Mark R-9:
(ii) Their case is said to have been considered in HLC 108 held on 08.01.2005. They were offered a package deal of Rs. 4,75,000.00 & one plot of land measuring 50 x 50. They too did not accept the offer, which annoyed the members of the HLC and, consequently, their case was not considered in the subsequent HLC meetings, namely, HLC 150 and HLC 153;
Petitioners 12 to 18, Mark R-28:
(iii) Their case is said to have been considered in HLC 108 and had been offered a package deal of Rs. 6,00,000.00 and two plots of land measuring 25 x 40. The petitioners did not accept the offer as being inadequate. In the subsequent HLC meeting, namely, HLC 150, their case was not considered.
However, in HLC 153 they are stated to have been offered a package deal of Rs.12,50,000.00 for land measuring 562.06 sft, and one plot of land at Bagati Shooru. Besides, they are also stated to have been promised two shops on rent basis;
Petitioners 19 to 38, Marks 29-R1 and 29-R2:
(iv) Their case is said to have been considered in HLC 108. They had been offered , Rs. 6,75,000.00 and two plots of land measuring 25 x 40 and 25 x 50.
Their case was again considered in HLC 150 wherein package deal of Rs.14,50,000.00 and two plots of land at Baghati Shooru and one shop on rent basis was offered to them. The petitioners did not accept the offer. Their case was again considered in HLC 153 and the package deal was raised to Rs.15,00,000.00 with one plot of land and one shop on rent basis;
Petitioners 39 to 45, Mark 30-RA:
(v) In HLC 108, these petitioners are stated to have been offered a package deal of Rs.4,30,000.00 and one plot of land measuring 25 x 40. On refusal to accept the same, their case was again considered in HLC 150 whereunder package deal of Rs.7,50,000.00 and one plot of land at Baghati Shooru and three shops on rent basis are stated to have been offered to them. Their case was not considered in HLC 153;
Petitioners 46 to 48, Mark 30-RB:
(vi) In HLC 108, these petitioners had been offered a package deal of Rs.
6,50,000.00 and no plot of land. They refused to accept the offer. Their case was again considered in HLC 150 wherein package deal of Rs.6,50,000.00 was offered to them, which they did not accept.
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 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 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.
14. In order to ascertain the veracity of the specific averments made in this regard in the petition, the learned counsel for the respondents was directed to produce the original records. The learned counsel produced the original record contained in a file titled Court Case of Muhammad Ashraf Sofi & Others 47/2013 containing 1 to 43 pages. Perusal of the record reveals as under:
i) Public notice dated 09.12.2012 under Sections 9 and 9-A in respect of property marked R-1 has been endorsed to Mohammad Ashraf & Ghulam Qadir ss/o Gh. Mohammad Sofi R/o K. K. Mohalla Fateh Kadal, Srinagar;
ii) Public notice dated 09.12.2012 under Sections 9 and 9-A in respect of property marked R-9 has been endorsed to Ab. Rahman S/O Mohammad Sofi, Azimu-din S/O Noor ohammad Sofi R/o K. K. Mohalla Fateh Kadal, Srinagar;
iii) Similar notice dated 09.12.2012 in respect of property marked 28-R has been issued and endorsed to Gh. Rasool, Ali Mohammad Sons and Mehtaba dauther of Mohammad Sultan Sheikh R/o K.K. Mohalla Fateh Kadal, Srinagar;
iv) Identical notice on the same date has been issued in respect of property marked 29-R1, 29-R2 and endorsed to Gh. Mohammad, Mohammad Yousuf sons of Fatima, Sara daughters of Gh. Nabi R/o K. K. Mohalla Fateh Kadal, Srinagar;
v) Again, similar notice in respect of property marked 30-RA was endorsed to Ab. Qayoom, Ab. Rahman Ss/o Ab. Aziz Misgar R/O KK Mohalla Fateh Kadal, Srinagar;
vi) However, there is no notice under Section 9 or 9-A of the Act on the original record thus produced.
Thus, the contentions raised by the petitioners, that most of them were not issued notices under Sections 9 and 9-A of the Act, or that notices were issued to dead persons, is established by the original record.
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.
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 thenb v v c vc learned Counsel for the respondents in the open Court.
Disposed of along with connected CMP(s).
(Ali Mohammad Magrey) Judge Srinagar 09.12.2013 Syed Ayaz, Secretary