DARSHAN SINGH AND ANOTHER vs STATE AND ORS

The petition is admitted for hearing and with the consent of learned counsel for the parties, the same is heard finally.

In this writ petition, the petitioners inter alia seek a writ of certiorari seeking quashment of award dated 09.07.2015 passed by respondent No. 5 to

the extent it pertains to the land of the petitioners measuring 01 kanal 10 marlas and 117 Sqft. forming part of khastra No. 298/37, situated at village

Chak Changerwan, Tehsil Jammu. The petitioners also seek writ of mandamus commanding the respondent No. 5 to produce before this Court the

entire record pertaining to the land in question as well as a direction to the respondents not to interfere with the possession of the petitioners with

respect of land in question.

The facts giving rise to the filing this writ petition briefly stated are that the the petitioners claim to be the owners of land admeasuring 08 kanals 09

marlas, forming part of Khasra No. 23 situated at village Chak Changarwan Tehsil and District Jammu. It is case of the petitioners that in the year

1995, their land admeasuring 08 kanals 09 marlas was exchanged with the J&K Housing Corporation by way of an exchange deed. Thereafter, formal

agreement was executed on 01.02.2009, which was registered with the Notary and thereafter, lease deed was executed on 05.06.2014 in respect of

the land admeasuring more than two kanals. The present dispute only pertains to the land admeasuring 01 kanal 10 marlas and 117 Sqft. forming part

of khasra No. 298/37.

Admittedly, Notification under section 4(1) of the J&K Land Acquisition Act Svt. 1990 (hereinafter referred to as the Act) was issued on

27.06.2012 and the same was published in the State Time newspaper on 30.06.2012. Thereafter, declaration under sections 6 & 7 of the Act was

published by the Deputy Commissioner on 24.10.2014. Notifications under sections 9 and 9(a) of the Act were issued on 27.12.2014 and published

in the newspaper on 30.12.2014 and eventually, the final award was passed on 09.07.2015. The petitioners, thereafter, were served with a notice in

the year 2016, by which they were informed that their land admeasuring 01 kanal 10 marlas and 117 Sqft. falling under khasra No. 298/37, which form

part of plots No. 43-A and 44-A has been acquired and award dated 09.07.2015 has been passed. The petitioners were asked to approach the office

of the Collector. In the aforesaid factual background, the petitioners have approached this Court.Â

Learned counsel for the petitioners submitted that impugned award is void ab initio as no declaration has been issued under section 6 of the Act by

the Competent Authority, i.e., Government and the same was issued by the Deputy Commissioner, who has no authority to do so. Reference in this

connection is made to the decision of this Court in the case of Zahir Hussain vs. State of J&K and ors., (2011) 4 JKJ 127. It is argued that

notification under section 4 (1) of the Act was not published in two daily newspapers having large circulation in the said locality and the same was

not made by means of beating of drums through local Panchayat and Patwari. In this connection, learned counsel for the petitioners has referred to

the decision of this Court in the case of Bansi Lal Bhat vs. State of J&K and ors. 2012 (4) JK Judgments 272. It is also pointed out that after

revival of the indent by the Executive Engineer on 03.05.2013, it was incumbent upon the respondents to issue fresh notice under section 4 of the Act,

which has not been done. It is also submitted that land in question is not being acquired for public interest and and same is done under the political

consideration, which is evident from the perusal of the award.Â

On the other hand, learned Deputy Advocate General, has invited the attention of this Court to section 3(b) of the Act, expression “person

interested†and submitted that the petitioners are not the persons interested as they have no title against the suit land as the lease deed was executed

on 05.06.2014, whereas notification under section 4 (i) was published on 30.06.2012. The petitioners did not have the locus over the land in question,

as the acquisition proceedings were initiated prior to execution of the lease deed and they are only entitled to the compensation. In support of his

submissions, the learned Deputy Advocate General has relied upon the decision of the Supreme Court in the case of V. Chandrasekaran and

another  vs. Administrative Officer and others, (2012) 12 SCC 133 and decision of this court in the case of Ghulam Rasool Bhat vs. State of

J&K and ors. 2004 (i) JKJ 416 [HC]. Learned senior Additional Advocate General for respondents 2 & 5Â and Mr. S. S. Ahmad, learned counsel

for respondent No. 6 have adopted the submissions made on behalf of learned Deputy Advocate General.Â

By way of rejoinder reply, learned counsel for the petitioners, while inviting attention of this Court to the impugned award, submitted that from

perusal of the impugned award, it is evident that respondents have served notice to the petitioners under section 4 of the Act, which shows that they

are the interested persons. Therefore, it cannot be said that the petitioners have no locus to challenge the award. It is further submitted that the

petitioners are the persons, who are in possession of the land in question by way of exchange deed.Â

I have considered the submissions made by the learned counsel for the parties and have perused the record. Before proceeding further, it is

apposite to take note of certain relevant statutory provisions. Section 3 (b) of the Act is reproduced as under:Â

“3. Definition.-In this Act. unless is something repugnant in the subject or context,-Â

……… (b) the expression ""person interested"" includes all persons claiming an interest in compensation to be made on account of the acquisition of

land under this Act ; and a person shall be deemed to be interested in land if he is interested in an easement affecting the landâ€​

The relevant extract of section 5-A reads as under:

“5-A Hearing of objections: (1)Any person interested in any land which has been notified under section 4, sub-section (i), as being needed or likely

to be needed for a public purpose [x x x] may, within fifteen days after such land is notified in the manner prescribed in clause (a) of sub-section (I) of

section 4 as being needed or likely to be needed for a public purpose] object to the acquisition of the land or of any land in the locality, as the case may

be.â€​

Thus, from the perusal of section 3(b), it is evident that expression “person interested†includes all persons claiming an interest in compensation

to be made on account of the acquisition of land under the Act and a person may be deemed to be interested in land, if he is interested an easement

affecting the land. Section 5-A provides that any person interested in any land, which has been notified under section 4 (i) of the Act, as being needed

or likely to be needed for a public purpose, may within fifteen days file objections. At this stage, it is relevant to reproduce the expression “person

interestedâ€​ as defined under the Land Acquisition Act, 1894 as under:

“(b) the expression “ person interested, includes all persons claiming an interest in compensation to be made on account of the acquisition of

land under this Act and a person shall be deemed to be interested in land if he is interested in an easement affecting the land.â€​

Thus, is it evident that both the provisions, namely, provision of J&K State Land Acquisition Act Svt. 1990 and the provision of Central Act are

peri materia. Section 118 of the Transfer Property Act, 1977 provides that transfer of the property in completion of an exchange can be made only in

manner provided for the transfer of such property by sale. Section 54 of the Transfer Property Act provides that such transfer in the case of tangible

immovable property or in the case of a reversion or other intangible thing can be made only by a registered instrument. A contract for the sale does

not by itself create interest in or charge of such property. Thus, it is axiomatic that even if exchange of property is to be made, sale is required to be

made by a registered document.Â

The Supreme Court in the case of Lila Ram vs. Union of India, (1975 32 SCC 547 has held that a person, who purchases the land subsequent to

the Notification under section 4 of the Act, does so, at his own peril. In Union of India vs. Shiv Kumar Bhargava (1995) 2 SCC 427, it has been

held that the purchaser is entitled only to receive the compensation. Similar view has been taken by the Supreme Court in the case of Sneh Prabha vs.

State of U.P, (1996) 7 SCC 426. The Supreme Court in the case of S Palani Velayutham and others vs. District Collector Tirunelveli, (2009) 10

SCC 664 has held that the Collector is required to give notice to the person whose name is entered in the revenue record and notice is not required

to be given to any other person, whose name is not entered in the revenue record. In K. N. Aswathnarayana Sethy vs. State of Karnatka and

others, (2014 15 SCC 394, it has been held that a person who purchases the land subsequent to issuance of notification under section 4 of the Act, has

limited rights and claim compensation only as he steps into shoes of erstwhile owner but he cannot challenge validity of acquisition proceedings.Â

Similar view has been taken in the case of Rajasthan Housing Board vs. New Pink City Nirman Sahkari Samiti, (2015) 7 Supreme Court cases 601.

In the backdrop of the aforesaid well settled legal position, the facts of the case in hand may be seen. In the instant case, the petitioners have

exchanged the land in the year 1995. However, no document was executed at that point of time. Thereafter, on 01.02.2009 an agreement of exchange

was executed which was duly registered with the notary. The aforesaid document is not registered, therefore, the same does not vest any title in

favour of the petitioners in respect of the land in question. Eventually, the lease deed was executed on 05.06.2014, i.e. after the issuance of

notification under section 4 (i) of the Act, which was issued on 30.06.2012. Therefore, in view of the aforesaid enunciation of law by the Supreme

Court, the petitioners have no locus to challenge the proceedings under the Act and, therefore, it is not necessary for this Court to examine the validity

of proceedings for acquisition at the instance of the petitioners.Â

In the preceding analysis, challenge to the land acquisition proceedings is repelled. The writ petition is disposed of with a direction to the Collector

Land Acquisition to make payment of amount of compensation to the petitioners as per the award within a period of two months from today.

Accordingly the writ petition is deposed of along with connected MP.