Khurshid Ahmad Nazki vs Union Territory Of Jammu And Kashmir ... on 1 September, 2023

[Cites 28, Cited by 0]

Jammu & Kashmir High Court - Srinagar Bench

Khurshid Ahmad Nazki vs Union Territory Of Jammu And Kashmir ... on 1 September, 2023

1. The present appeal has been filed against the order dated 03.05.2023 passed by the Ld. Single Judge in WP(C) No.175/2023, by which the learned Single Judge declined to interfere with the Award passed under the Land Acquisition Act, Svt. 1990, (hereinafter referred to as the Act of 1990)even though it gave a finding that the notification issued by the authorities under Section 4(1) of the Act of 1990, is not tenable in law and the relevant law that was applicable for the acquisition of proprietary land of the petitioner appellants in the year 2022 was the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (RFCTLARR Act) and disposed of the writ petition by enhancing the compensation payable to the petitioner appellants under the award by 20%.

2. The case set up by the appellants is that they are the owners in possession of land measuring 08 kanals and 08 marlas falling under survey no.620/37 (04 kanals 01 marlas) and 1109/37 (04 kanals 17 marlas) at Village Mamath, Budgam, and had constructed a residential house on the said land in the year 2016 by investing huge amounts of more than Rs. 10 crores, where they are presently residing.

3. A notification under Section 4(1) of the J&K Land Acquisition Act, Svt. 1990 came to be issued for acquiring land measuring 94 kanals, 06 marlas and 147 sq. ft. for the construction of Semi Ring Road around Srinagar City in District Budgam in village Mamath on 28.03.2019 as part of the National Highway Project.

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4. According to the appellants, the said notification did not include the land owned and possessed by the appellants. However, subsequently, without concluding the acquisition process initiated under the notification issued under Section 4(1) of the Act of 1990 on 28.03.2019, and at the instance of the Respondent no.12, the authorities altered the Detail Project Report (DPR) and issued a fresh notification under Section 4(1) of the Act of 1990 on 17.03.2022 which included the land of the appellants measuring 04 kanals, 14 marlas, 90 square feet, falling under survey No. 37, which was objected to by the appellants by filing objections. As the said objections were not considered, the appellants approached this Court by filing a writ petition being WP(C) No.717/2022, which was disposed of at the threshold with liberty to the appellants to approach the Collector for consideration of their objections as per law. The objections were rejected by the Collector on 02.06.2022 and on the contrary, the Collector directed that notifications under Sections 6 and 7 of the J&K Land Acquisition Act, Svt. 1990 be issued.

5. Thus, being aggrieved, the appellants again approached this Court by filing a writ petition being WP(C) No.175/2023 challenging the notification issued under Section 4(1) on 17.03.2022, and notification issued under Sections 6 of the Act of 1990 on 04.08.2022, as also the notification dated 26.09.2022 issued under Sections 9 & 9A of the Act of 1990.

6. In their response to the said writ petition, the respondents stated that the tentative award had been already notified on 11.04.2022 under the Act of 1990 and notice under Section 12(2) of the Act of 1990 had been issued on 11.04.2023 inviting objections from the interested persons, leading to filing of an application by the appellants seeking amendment of their writ petition to challenge the subsequent proceedings and passing of the final award. According to the appellants, the Writ Court without considering the amendment application, disposed -4- of the writ petition vide impugned judgement and order dated 03.05.2023, and declined to interfere with the land acquisition proceedings despite holding that the relevant law that was applicable for the acquisition of proprietary land of the petitioner appellants in the year 2022 was not the J&K Land Acquisition Act of Svt. 1990, but the RFCTLARR Act.

7. The Ld. Single Judge, however, held that since the land acquisition proceedings had already been completed and final award passed under the Act of 1990, it would be difficult, rather inadvisable at this stage, to set the entire acquisition process at naught. And since most of the villagers, whose land had been acquired in the village Mamath, had already taken their compensation and the construction of the Ring Road is in progress, and relying on the decision of a Division Bench of this Court in the case ofLand Owners of Village Suthsoo & Ors. V. State of J&K and others [OWP No. 424 of 2018] decided on 28.04.2023, the relief claimed in the writ petition was modified by directing the respondents to enhance the compensation payable to the petitioners under the award by 20% which according to the Ld. Single Judge would meet the ends of justice and would be a kind of penalty to the respondents for not following the correct provisions of law.

8. Questioning the impugned judgement and order of the Ld. Single Judge, Ld. Senior Counsel for the appellants submits that after passing of the Jammu and Kashmir Reorganisation Act, 2019, following abrogation of Article 370 of the Constitution, J&K Land Acquisition Act, Svt. 1990,had lapsed and the Central Act of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation & Resettlement Act, 2013 came into operation w.e.f. 31.10.2019. In other words, for any land acquisition proceeding initiated after the Jammu and Kashmir Reorganisation Act, 2019 came into effect on 31.10.2019, such -5- proceeding has to be undertaken in terms of the Central Act of RFCTLARR Act of 2013.

9. It is the specific plea of the appellants that in terms of the Jammu and Kashmir Reorganisation Act, 2019, the Central Acts as mentioned under Fifth Schedule of the Jammu and Kashmir Reorganisation Act, 2019 were made applicable to the UT of Jammu and Kashmir and the UT of Ladakh, with effect from 31.10.2019. As mentioned in Table 3 at Item no. 73 of the Fifth Schedule of the Jammu and Kashmir Reorganisation Act, 2019, the Jammu and Kashmir Land Acquisition Act, Svt. 1990, stood repealed with effect from 31.10.2019 and correspondingly, the RFCTLARR Act of 2013 came to be applicable with effect from 31.10.2019.

10. It is the contention of the appellants that this legal position has been accepted by the Ld. Single Judge, though the respondents sought to justify such course of action by contending that the subsequent notification issued under Section 4(1) of the Act of 1990 was an extension of the earlier notification issued under Section 4 (1) of the Act of 1990 on 28.03.2019. The Ld. Single Judge repelled such a contention and held as clearly recorded in paragraph nos. 5 and 8 of the impugned judgment and order as follows:

"5) Having heard learned counsel for the parties and perused the material on record, I am of the considered view that the impugned notification dated 17th of March, 2022, cannot, by any stretch of reasoning, be said to be either extension of Section 4(1) notification issued on 28th of March, 2019, or treated as a corrigendum thereto. The proprietary land of the petitioners was for the first time notified for acquisition in the year 2020 and consequently, notification under Section 4(1) was issued on 17th March, 2022.

Admittedly, the Act of 1990 stood repealed with the coming into operation of the Jammu and Kashmir Reorganization Act, 2019. The law which was in force on the date the proprietary land of the petitioner was sought to be acquired was RFCTLARR Act. In that view of the matter, I am in agreement with learned counsel for the petitioners that the proprietary land of the petitioners could not have been acquired under the repealed Act."

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6) .......................................................

7) ......................................................

8) In view of the aforesaid, this petition succeeds to the extent that process of acquisition embarked upon by the respondents by issuing Section 4(1) notification under the Act of 1990 is found not tenable in law. The relevant law that was applicable for acquisition of the proprietary land of the petitioners in the year 2002 was RFCTLARR Act."

11. It has been accordingly, submitted on behalf of the appellants that by not following the provisions of RFCTLARR Act, the entire proceeding has been vitiated. Mr. Jahangir Ganai, Ld. Sr. Counsel for the appellants submits that the provisions of RCTLARR Act are much more beneficial than the provisions of the Act of 1990, as such, the appellants have been greatly prejudiced. It has been submitted that the Central Act apart from providing enhanced compensation also provides for rehabilitation and since the authorities are seeking to demolish their residential house, they are entitled to be rehabilitated.

Learned Sr. Counsel further contends that the illegality has been compounded by the fact that the Collector and other authorities did not even follow the procedure provided under the Act of 1990 as far as the appellants are concerned. It has been submitted that no demarcation was done by the authorities in presence of the appellants and the compensation was fixed by the authority merely on surmise without proper consideration of the relevant factors.

It has been submitted that the Indenting Department neither chose to appear nor caused their appearance as clearly mentioned in the Award dated 11.04.2023 issued by the Land Collector Acquisition, Semi Ring Road Budgam.

It has been, accordingly, contended that the entire land acquisition proceeding is vitiated and liable to be set-aside.

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12. It has been submitted that the respondents have not also challenged the aforesaid finding of the Ld. Single Judge that the applicable law is RFCTLARR Act. Hence, non-adherence to the provisions of the RCTLARR Act would be fatal. It has been also submitted that the appellants are still in possession of the properties and building, and unless appropriate actions are taken in strict compliance of the provisions of the RCTLARR Act for rehabilitating the appellants, the respondents may be restrained from taking over the possession of the properties on the basis of the impugned award.

13. Ld. Sr. counsel for the appellants submits that reliance placed by the Ld. Single Judge on the earlier decision in the case of Land owners of Village Suthsoo(supra) declining to quash the impugned notification and for granting only 20% enhancement in the compensation, is misplaced for the reason that the fact situation obtaining in the said case is different from the present case inasmuch as there was no finding by the Court that the provisions of RFCTLARR Act were applicable as held in the present case. Further, in the present case, the respondents have not yet taken possession of their land. In support of the same, the Ld. Sr. Counsel placed reliance on the decision of the Supreme Court in UP State Electricity Board Versus Pooranchandra Pandey And Others:(2007) 11 SCC 92.

14. The Ld. Sr. counsel has also placed reliance on the following decisions in support of his contentions:

(i) State of U.P. and others v. Manohar : (2005) 2 SCC 126;

(ii) U.P.State Electricity Board v. Pooran Chandra Pandey & Others : (2007) 11 SCC 92;

(iii) Radhy Shyam and others v. State of Uttar Pradesh and others : (2011) 5 SCC 553;

(iv) Darshan Lal Nagpal v. Government of NCT of Delhi &Ors. :

(2012) 2 SCC 327;

(v) Tukaram Kana Joshi &Ors. v. Maharashtra Industrial Development Corporation &Ors. : (2013) 1 SCC 353;

(vi) Vidya Devi v. State of Himachal Pradesh &Ors. : (2020) 2 SCC 569;

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(vii) Jarnail Singh &Ors. v. Lachhmi Narain Gupta &Ors. : (2022) 10 SCC 595; and

(viii) Farooq Ahmad Band &Ors. V. State of J&K and others : 2017 (1) JKJ 552 [HC].

15. On the other hand, Mr. Mohsin Qadri, Ld. Sr. AAG, submits that the entire land acquisition proceeding was initiated in the year 2016 and since the impugned notification is continuation of the process already initiated, the provisions of the RCTLARR Act will not be applicable in the present case. It has been submitted that the process for acquiring the land required for the Semi Ring Road around Srinagar City was initiated on 20.08.2016 and the notification under Section 4(1) of the J&K Land Acquisition Act, 1990 was issued on 28.03.2019 and the subsequent impugned notification was issued on 17.03.2022 by way of a corrigendum of the earlier notification issued on 28.03.2019.

16. It has been submitted that as many as 45 villages were affected and all the landowners have been given adequate compensation after taking possession of the land as per the law, except for the appellants who are challenging the proceeding and award and are stalling the progress of the project and resisting handing over the possession of their land.

17. Relying on the decision of the Hon'ble Supreme Court in Ramniklal N. Bhutta &anr. V. State of Maharashtra &Ors: AIR 1997 SC 1236, it has been submitted that in the matters of land acquisition, the High Court should keep the larger public interest in mind while exercising powers under Article 226 of the Constitution of India and it should adopt ways of affording appropriate relief like damages instead of quashing acquisition proceedings.

18. It has been also submitted that in fact, this Court in a catena of cases, where the land acquisition proceedings were challenged which had the effect of adversely affecting the Public Interest, has followed the -9- aforesaid principle and in this connection the following decisions have been referred to by the learned Sr. Counsel for the respondents:-

(i) National Highways Authority of India v. P. Nagaraju alias Cheluvaiah & anr. : 2022 SCC OnLine SC 864;

(ii) Omesh Singh &Ors. v. State of J&K and others, LPA No.268/2019, decided on 28.12.2020;

(iii) Mohd. Ayoub &Ors. V. State of J&K and others, OWP No.391/2019, decided on 14.09.2021;

(iv) Land Owners of Village Suthsoo & Ors. v. State of J&K and others, OWP No.424/2018, decided on 28.04.2018; and

(v) Smt. Prabha Shukla v. State of U. P. and others, Writ-C No.18526 of 2021, decided on 05.01.2022 (High Court of Judicature at Allahabad)

19. As is evident, the crux of the submission of the Learned Senior Counsel for the appellants is that the provisions of RCTLARR Act will be applicable in the present case inasmuch as the impugned notification dated 17.03.2022 which included the land of the appellants was issued after the Jammu & Kashmir Reorganisation Act, 2019 came into operation, whereunder the Central Act of 2013 (RFCTLARR Act) became operational and the earlier J&K Land Acquisition Act, 1990, had lapsed and, as such, if the Government seeks to acquire any property, the same has to be acquired in accordance with the Central Act being RFCTLARR Act and not under the Act of 1990 which stood repealed.

20. In view of the said core argument advanced by the learned Senior Counsel for the appellants, we may examine the same before we consider the other issues raised in the appeal. For doing so, we may examine the nature of the subsequent Notification issued on 17.03.2022 under Section 4(1) of the J&K Land Acquisition Act, 1990.

21. The Jammu and Kashmir Reorganisation Act of 2019 came into effect from 31.10.2019. Evidently, the earlier notification under Section 4(1) of the J&K Land Acquisition Act, Svt. 1990, dated 28.03.2019 was issued prior to coming into force of the Jammu & Kashmir Reorganisation Act of 2019.

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22. The moot question for consideration would be, whether issuance of the new notification on 17.03.2022 under Section 4(1) of the J&K Land Acquisition Act, Svt. 1990, would amount to initiating a fresh acquisition proceeding? If yes, perhaps, the appellants will have a case as no fresh land acquisition proceeding can be initiated under the old Act of Jammu and Kashmir Land Acquisition Act, Svt. 1990 which had lapsed after 31.10.2019.

For this we have to examine whether the new notification issued on 17.03.2022 amounts to initiating a fresh proceeding for land acquisition or not.

Relevant portion of the aforesaid notification reads as follows:

"Subject: Notification under Section 4(1) of J&K Land Acquisition Act Svt. 1990 for acquisition of land under the alignment of Semi Ring Road around Srinagar City in District Budgam and corrigendum thereof.

Reference: 1. Minutes of the meeting held under the Chairmanship of Commissioner/ Secretary to the Government PWD (R&B) on 22nd of March 2016, issued vide No.PWD/R&B/Plan/281/2013 Dated 30-03-2016.

2. Project Director (PIU) Srinagar No. PD/SGR/14010/01/2014/ LA- BDG/13 Dated 20-04-2016.

Whereas, notification under Section 4(1) of J&K Land Acquisition Act Svt 1990, for land measuring 94 kanal, 06 Marlas and 147 Sft for construction of semi Ring Road around Srinagar City in District Budgam in village Mamath was issued vide No. DCB/LAS/016/f-330/99-105 Dated 28.03.2019; and Whereas, Project Director NHAI (Indenting Department), vide communication Dated 11.08.2020 raised observations regarding the alignment and requested for notification of the land to be acquired as approved alignment; and Whereas, fresh demarcation was carried out by field agencies of Revenue Department in presence of representatives of NHAI and Tehsildar Budgam vide letter Dated 25.03.2021 was requested to submit the Khasra Paimaish and other revenue documents as per the fresh demarcation; and Whereas, the revenue papers received from Tehsildar Budgam were forwarded to Project Director NHAI vide letter Dated -11- 19.05.2021 who authenticated the same vide his letter Dated 28.05.2021 with some observations as enumerated below:

a. Land coming within the alignment under survey no.1 is 1K 19M instead of 3K 5M.

b. Land coming within the alignment under survey no.2 is 3M instead of 15M.

c. Survey no.4 is not coming under the alignment of the road. Now therefore, in view of the above, the survey numbers and quantum of land to be acquired for construction of Semi Ring Road in village Mamath and notified earlier vide notification Dated 28.03.2019 shall be read as under.

......................................................... ......................................................... .......................................................... Any person interested having any objection to the acquisition of the aforementioned land may file the same in writing before undersigned within fifteen days from the date of issuance of this notification.

        No:DCB/LAS/016/F-330/1358-67                Sd/-
        Dated: 17.03.2022               Dr. Muzamil Maqbool (JKAS)
        DIPK-19827-21                     Collector Semi Ring Road"

23. From the above it is very clear that the aforesaid Notification dated 17.03.2022 was issued by way of corrigendum of the earlier Notification issued on 28.03.2019 under Section 4(1) of the J&K Land Acquisition Act, Svt. 1990 as also clearly mentioned in the notification. If the new Notification dated 17.03.2022 was issued by way of Corrigendum of the earlier Notification, we are of the opinion that it cannot be said that by such Notification dated 17.03.2022, a fresh proceeding for acquiring the land was initiated by Corrigendum of a notification. We would understand that it was issued by way of a correction of an existing notification by adding or deleting the names of some land owners to the original list.

24. When we carefully read the Notification dated 17.03.2022, we find that it was issued after the Project Director, NHAI, the Indenting Department, made some observations about the alignment and requested for acquisition of the land as per the approved alignment by -12- the Revenue Department and on the basis of such field survey, certain lands were sought to be included for acquisition viz., a. Land coming within the alignment under survey no.1 is 1K 19M instead of 3K 5M.

b. Land coming within the alignment under survey no.2 is 3M instead of 15M.

It was also observed that survey no.4 was not coming under the alignment of the road.

25. Accordingly, necessary corrections were made, and a new Notification was issued on 17.03.2022 by adding and deleting certain lands based on the alignment of the road and survey done. However, the said Notification dated 17.03.2022 was not issued by abandoning the earlier Notification, but only certain changes were made in the earlier notification by incorporating some new lands which were not included in the earlier Notification issued on 28.03.2019. Thus, it is clear that the new Notification dated 17.03.2022 was by way of corrigendum by correcting the earlier Notification dated 28.03.2019 by adding more lands, as mentioned in the said notification dated 17.03.2022. Further, the fresh notification was not specifically only about the land of the appellants. It contains the land of other owners which were mentioned in the earlier notification. It may be also noted that even if the land of the appellants came to be included for the first time, it was clubbed with the land of others which were already included in the earlier notification. The fresh notification is not a stand-alone notification only in respect of the land of the appellants. Thus, the impugned Notification dated 17.03.2022 cannot amount to initiating a fresh land acquisition proceeding.

26. The next issue to be decided is about the legal effect of such Notification issued on 17.03.2022 when the Jammu and Kashmir Re- organisation Act, 2019 came into operation resulting in the lapse of the Jammu and Kashmir Land Acquisition Act, Svt. 1990 and coming into -13- operation of the Central Act of RFCTLARR Act. Will this impugned Notification dated 17.03.2022 also lapse?

27. Ordinarily, once the Jammu and Kashmir Land Acquisition Act, Svt. 1990 lapsed and the Central Act of RFCTLARR Act came into operation, the land acquisition proceedings should be in terms of the Central Act of RFCTLARR Act as also contended by the ld. Sr. Counsel for the appellants.

28. In this regard, it may be observed that Sub-clause (1) of Section 114 of the RFCTLARR Act, 2013 which deals with the saving clause of the Act provides that the Land Acquisition Act, 1894 is repealed and it has been further provided in sub-clause (2) of Section 114 of the RFCTLARR Act that save as otherwise provided in this Act, the repeal under sub-section (1) shall not be held to prejudice or affect the general application of Section 6 of the General Clauses Act, 1897 with regard to the effect of repeals.

Sec. 114 of the RFCTLARR Act reads as follows:

"114. Repeal and saving.-(1) The Land Acquisition Act, 1894 (1 of 1894) is hereby repealed.

(2) Save as otherwise provided in this Act the repeal under sub-

section (1) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 (10 of 1897) with regard to the effect of repeals."

Section 6 of the General Clauses Act, 1897, reads as follows:

"6. Effect of repeal.--Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not--

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;

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and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed."

29. Though Section 114 of the RFCTLARR Act does not specifically mention Jammu and Kashmir Land Acquisition Act of 1990, the intent and purpose of section 114 of the RFCTLARR Act is clear, that is to save the proceedings initiated under the Land Acquisition Act of 1894. It is also a fact that in Jammu and Kahmir, the said Land Acquisition Act of 1894 was not applicable but a similar Act of Jammu and Kashmir Land Acquisition Act of 1990, with similar provisions of law was applicable.

30. Thus, we can say that even if the Jammu and Kashmir Land Acquisition Act, 1990, stood repealed by virtue of the Jammu and Kashmir Reorganisation Act, 2019, in view of Section 6 of the General Clauses Act, 1897, any investigation or legal proceeding may be continued and enforced as if the repealing Act had not been passed. Thus, even if the RFCTLARR Act came into operation repealing the Jammu & Kashmir Land Acquisition Act, by virtue of Section 6 of the General Clauses Act, 1897, the proceedings already initiated under the Jammu and Kashmir Land Acquisition Act, 1990 would continue.

31. Accordingly, in view of the above, we do not agree with the contention of the learned Senior Counsel for the appellants that after enforcement of the Jammu and Kashmir Reorganisation Act, 2019, with effect from 31.10.2019, the land acquisition proceedings have to be continued under the RFCTLARR Act.

32. Since, we have already arrived at the conclusion that the Notification issued on 17.03.2022 was by way of a corrigendum and correction of the earlier notification, and not by way of initiation of fresh land acquisition proceedings, the said notification dated 17.03.2022 does not suffer from any legal flaw and if any Award has been made pursuant thereto, no fault can be found with the same. To that extent we are -15- unable to agree with the finding of the learned Single Judge that after coming into effect of the Jammu and Kashmir Reorganisation Act, 2019, the RFCTLARR Act will be applicable in the present case. We are making this observation though respondents have not made any challenge to the said finding of the learned Single Judge. However, since the appellants are insisting upon the aforesaid finding, we have examined the issue as to whether the said finding is legally permissible or not, which we do not find to be so, for the reasons discussed above.

33. Having arrived at the conclusion that the provisions of RFCTLARR Act will not be applicable in the present case, the reliefs claimed by the appellants have to be examined keeping in mind the applicability of the Jammu and Kashmir Land Acquisition Act, 1990. In this regard we may make a mention that the learned Single Judge has relied upon the earlier decision of this Court in the case of Land Owners of Village Suthsoo (supra) wherein the Division Bench in paragraph no.28 thereof had observed that, it was not in dispute that on the date/dates, when acquisition proceedings in question were set in motion by the Collector in their respective jurisdictions by issuing notification under Section 4 of the State Act, the law that was applicable in the then State of Jammu & Kashmir was the State Land Acquisition Act, 1990. Yet, the Division Bench in the aforesaid case also made the observation that National Highways Act, 1956, which extends to the whole of India, was applicable to the State of Jammu & Kashmir/UT of Jammu & Kashmir and that since the Ring Road around the Srinagar City is part of the National Highways Project, in terms of the communication of the Government of India, Ministry of Road Transport and Highway, as mentioned in the said judgment, the land acquisition for National Highways Project is required to be acquired under the provisions contained in Section 3A of the National Highways Act, 1956.

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The Division Bench, thus observed in paragraph 34 that in the aforesaid case of Land Owners of Village Suthsoo (supra), the proper course for respondents was to initiate the process of acquisition under Section 3A of the National Highways Act, 1956, and proceed to complete the acquisition proceedings and determine the compensation under Section 3A to 3J of the National Highways Act, 1956.

The Division Bench, accordingly, summed up in the following words in paragraph 36 of the judgment, which reads as follows.

"36. Summing up the discussion, we hold thus:-

i) That Srinagar Ring Road may not be notified/ declared as national highway but is a part of national highways project and, therefore, all land required for construction of the Srinagar Ring Road is required to be acquired under the National Highways Act, 1956.

ii) Absent the applicability of RFCTLARR Act, 2013 to the State of Jammu & Kashmir till 30.10.2019, the process of acquisition and determination of compensation as also resolution of dispute, if any, between the parties shall govern by the provisions of Section 3 to 3J of the National Highways Act, 1956."

Thus, the finding of the Division Bench in the aforesaid case was that the process of acquisition embarked upon by the respondents under the Jammu & Kashmir Land Acquisition Act, 1990 was without jurisdiction and the Collector, Land Acquisition under the Act of 1990 was not competent to issue such notification for the acquisition of land.

34. In the case of Land Owners of Village Suthsoo (supra), the learned Division Bench of this Court held that the appropriate law which is applicable in respect of the acquisition of land relating to Semi Ring Road, Srinagar, was the National Highways Act, 1956 and not the Jammu & Kashmir Land Acquisition Act, 1990 which was invoked by the authorities. The Division Bench held that the Central Act of RFCTLARR Act would also not be applicable inasmuch as the land acquisition proceeding was initiated prior to applicability of the RFCTLARR Act, 2013. According to the -17- Division Bench, the aforesaid RFCTLARR Act became applicable only after the Jammu & Kashmir Reorganisation Act, 2019 came into force with effect from 31.10.2019. The Division Bench held that when the said Central Act was enacted in the year 2013, though it extended to the whole of India but it did not extend to the State of Jammu and Kashmir. The said exclusion of applicability in the State of Jammu and Kashmir was, however, removed by the amendment made in terms of the Jammu & Kashmir Reorganisation Act, 2019. According to the said decision of the Division Bench, the said RFCTLARR Act became applicable in the territory of Jammu & Kashmir only after the said bar was removed by virtue of the Jammu & Kashmir Reorganisation Act, 2019 which became effective from 31.10.2019.

35. In the present case, the learned Single Judge relying on the aforesaid decision held that since the impugned notification under Section 4(1) of the Jammu & Kashmir Land Acquisition Act, 1990, was issued on 17.03.2022 after coming into force of the Central Act of RFCTLARR Act, the said Central Act would be applicable. However, as we have already held that since the said notification was issued on 17.03.2022 was not a fresh notification but was a corrigendum of an earlier notification dated 28.03.2019, the Central Act would not be applicable.

36. Thus, the finding of the ld. Single Judge in the impugned judgment and order that the relevant law which was applicable in the present case is RFCTLARR Act, does not appear to be consistent with the view taken by the division bench in the earlier case of Land Owners of Village Suthsoo (supra).

37. It may be noted that it was never the case of the present appellants before us that the proceedings initiated prior to coming into force the new Act was to be done in terms of the National Highways Act, 1956. The specific plea of the appellants was that since the impugned notification -18- was issued after coming into effect of the Central Act, the land acquisition proceeding had to be in terms of the Central Act and not in terms of the J&K Land Acquisition Act, which submission we have already rejected for the reasons discussed above.

38. Therefore, the issue perhaps which remains to be considered is whether the impugned notification issued under Section 4(1) would be permissible in the light of the decision in Land Owners of Village Suthsoo (supra), wherein it has been held that in the matter relating to acquisition of land pertaining to the Semi Ring Road project, which is a part of the National Highway Project, it is to be dealt with under the National Highways Act, 1956. We, however, may not be required to dwell upon this issue for the reason that even if the provisions of the National Highways Act, 1956 is also held to be applicable in the present case, as held in Land Owners of Village Suthsoo (supra), in view of Section 6 of the General Clauses Act, the proceedings initiated under the National Highways Act would not be affected and the Central Act of RFCTLARR Act will not be applicable for the reasons discussed above. Hence, it may not be required for us to conclusively determine as to whether, in the present case, the impugned notification issued under Section 4(1) on 17.03.2022 was not in conformity with the provisions of the National Highways Act, 1956, as this is an issue which was never agitated by the appellants before us except for contending that the relevant law which was applicable was the RFCTLARR Act.

39. However, in spite of the aforesaid findings, we have also kept in mind the decision of the Hon'ble Supreme Court in Ramniklal N. Bhutta (supra) which cautioned that the public interest involved must be kept in mind by the Courts and should refrain from interfering with the land acquisition proceedings. We are also of the view that, if the provisions of RFCTLARR Act are not applicable in the present case, considering the importance of the project which has made substantial progress, and as -19- any interference from our end at this stage may hinder the expeditious implementation of this prestigious project, it may not be advisable to interfere with the land acquisition proceedings.

40. In view of the above observations and conclusions arrived at, we are not inclined to interfere with the impugned notification issued on 17.03.2022 and the subsequent award passed under the Jammu & Kashmir Land Acquisition Act, 1990 by disturbing the land acquisition proceeding even if one takes the view that the applicable law would be the National Highways Act, 1956, as held by a co-ordinate Bench in Land Owners of Village Suthsoo (supra).

41. However, in spite of our reluctance to interfere with the settled land acquisition proceeding pursuant to the impugned notification dated 17.03.2022 resulting in passing of the award, in view of the specific plea of the appellants that they were not present when the demarcation of the property was carried out, and they are still in possession of the land and the building, we are of the opinion that the interest of justice would be served if the land of the appellants is demarcated and the standing property/building be properly measured/assessed afresh in presence of the appellants. Accordingly, we direct that a fresh the demarcation of the land of the appellants and measurement of the standing property/buildings be carried out in presence of the appellants within two weeks from the date of receipt of a copy of this order by giving due notice to them and thereafter, the respondent authorities will be at liberty to proceed with the acquisition proceedings in terms of the Award by taking possession of the land.

42. The authorities shall make re-assessment of the quantum of compensation in terms of the measurement of the land/properties which may be obtained on spot as mentioned above. We also direct that over and above the compensation which may be worked out after fresh -20- measurement, the appellants will be also entitled to 20% increase in the compensation amount, as directed by the learned Single Judge.

43. We are also mindful of the fact that when the learned Single Judge directed the increase of compensation amount by 20%, it was not based on any criteria or formula evolved, but it was by way of exercise of judicial discretion by the Writ Court, which we do not consider to be unreasonable and arbitrary and as such, we do not wish to make any modification in the said increase directed by the learned Single Judge. In our view, any tinkering with the said percentage only in respect of the appellants will create differentiation with other landowners and thus introduce anomalies amongst the landowners which we wish to avoid.

44. With the above observations and directions and modifications of the impugned judgment order dated 03.05.2023 passed by the Ld. Single Judge in WP(C) No.175/2023 to the extent indicated above, the appeal is disposed of.

               (M. A. CHOWDHARY)             (N. KOTISWAR SINGH)
                     JUDGE                   CHIEF JUSTICE

Srinagar
01.09.2023
Abdul Qayoom, Secy.




              Whether the order is reportable?     Yes/No.

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Jammu & Kashmir High Court - Srinagar Bench