AI Structured Summary
Not yet generated for this judgment
Judgment
Rajnesh Oswal, J
1) The petitioners are the owners of land measuring 03 kanal 04 marlas comprising Survey Nos.766, 769, 786 and 788 in Village Jawbrara Awantipora on National Highway. The petitioners claim to have had established ‘Bitumen Hot Mixing Plant’ in the year 2009 after obtaining requisite permission. It is stated by the petitioners that in the year 2014, the respondents established District Police Lines for newly created District Police Lines at Awantipora and without following any process prescribed by law, the respondents forcibly occupied the land of the petitioners resulting in closure of their business. In the year 2015, the respondents took a decision to allot alternative land in exchange for the land of the petitioners from out of State/kahcharai/grazing land allotted to the department and in respect of that, the respondent No.3 addressed a communication dated 18.08.2015 to the respondent No.2. It is stated that the demarcation of the land which is in occupation of the District Police Lines, Awantipora was conducted through revenue officials and it came to fore that the proprietary land measuring 03 kanals and 04 marlas comprising Survey Nos.766-min, 769-min, 786-min and 788-min owned by the petitioners falling between the approach road leading to the DPL, Awantipora adjacent to ATM, Masjid Sharif DPL, Awantipora, in and around Sentry post, is in actual possession of DPL, Awantipora and the respondents were not in a position to vacate the above mentioned land due to security reasons and, as such, the respondent No.3 recommended that an equal area of land measuring 03 kanals 04 marlas be exchanged with the kahcharie land allotted to respondents out of under Survey No.761-min situated outside the boundary walls of DPL Awantipora. A similar communication was also issued to the petitioners.
2) It is stated that the respondents have neither provided a suitable land in exchange nor any compensation for the damages/business loss suffered by the petitioners has been assessed/paid to the petitioners, as such, they have prayed for directing the respondents to process their case for providing land in exchange out of Survey No.761-min, equal to three times the area of land acquired compulsorily from the petitioners and declare it to be the proprietary land under Section 133 of Land Revenue Act, 1996 and further the respondents be directed to assess the loss caused to the petitioners due to forcible closure of their hot mix plant and in the alternative, the respondents be directed to process their case for compensation under Land Acquisition act.
3) The petition has been opposed by the respondents by filing the response thereto. In the response filed by respondent No.2, it has been stated that the alleged indenting department has not placed any indent with respect to the acquisition of landed estate of the petitioners, as a result of which no acquisition proceeding could be undertaken and also the petitioners never approached for redressal of their grievances. It is further stated that the respondent No.3 has requested for the exchange of proprietary landed estate of the petitioners with Kahcharai land at District Police Lines, Awantipora, which correspondence seems to have been conveyed to the petitioners vide communication dated 26.08.2015. It is further stated that pursuant to the directions of this Court, the claim of the petitioners in respect of the exchange was rejected as the exchange could not be opted after the Re-organization Act has come in to operation, as the exchange solely rests on the provisions contained in Section 133(2) of the Land Revenue Act which was existing prior to its amendment vide S.O 3808 (E) dated 26.10.2020. After the above mentioned amendment, no exchange is permissible and the Deputy Commissioner has no power to accept any such offer.
4) The respondent No.3 has also filed the response wherein the occupation of the proprietary land of the petitioners by the respondent No.3 has been admitted, however, it has been stated that it is not possible to vacate the approach road land as it is the only motorable /walkable road to the important government security establishment i.e. Police Lines, Awantipora and the matter has been taken up with ADC, Awantipora, who is competent to redress grievances of the petitioners.
5) Mr. Arshid Andrabi, learned counsel for the petitioners, relied heavily upon the communication dated 18.08.2015, wherein the respondent No.3 had recommended for exchange of equal quantum of kahcharai land falling under Survey No.761-min situated outside boundary wall of DPL, Awantipora, vis-à-vis proprietary land of the petitioners. He further argued that S.O.3808 (E) dated 26.10.2020 protects the right already accrued in favour of the petitioners notwithstanding the repeal of Section 133(2) of Land Revenue Act.
6) Per contra, Mr. Mohsin Qadiri, learned senior AAG, submitted that the claim of the petitioners for exchange of land cannot be acceded to as sub-section (2) of Section 133 of the Land Revenue Act stands repealed by virtue of S.O (supra) and also no reliance can be placed upon the recommendation made by respondent No.3 to respondent No.2, as the same has not vested any right in the petitioners for exchange of the land with the Kahcharie land.
7) Heard and perused the record.
8) This is an admitted fact that the land measuring 03 kanals 04 marlas owned by the petitioners is in occupation of the respondents and the respondents have occupied the same without adopting due course of law. The contention of the petitioners is that kahcharai land comprising Survey No.761-min outside boundary wall of DPL, Awantipora, which has been allotted to the respondents, can be exchanged in lieu of the land owned by the petitioners but under the unauthorized occupation of the respondents. This is also an admitted fact that sub-section (2) of Section 133 of the Land Revenue Act stands repealed by S.O (supra). It was urged by learned counsel for the petitioners that clause (6) of the S.O (supra) protects the rights of the petitioners qua the exchange of land as recommended by respondent No0.3 to respondent No.2 vide communication dated 18.08.2015. The relevant provision of the aforesaid S.O reveals that the amendment shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed.
9) This Court is of the considered view that mere recommendation made by respondent No.3 to respondent No.2 for exchange of land owned by the petitioners with kahcharai land allotted to the DPL Awantipora would not confer any right, privilege upon the petitioners. It was a mere recommendation which could or could not have been accepted by the respondent No.2. Accordingly, the prayer of the petitioners for exchange of equal quantum of land owned by them with the kahcharie land allotted to the respondent No.3 is rejected.
10) Be that as it may, this is an admitted fact that the land of the petitioners measuring 03 kanals 04 marlas comprising Survey Nos.766-min, 769-min, 786-min and 788-min situated at Village Jawbrara Awantipora is under unauthorized occupation of the respondents. Equally true is that the respondent No.3 has shown inability to vacate the said land due to the security reasons.
11) In view of the above, the present petition is disposed of by directing the respondents to initiate, conclude the process for acquisition of above mentioned land measuring 03 kanals 04 marlas comprising Survey Nos.766-min, 769-min, 786-min and 788-min situated at Village Jawbrara Awantipora owned by the petitioners and make the payment of compensation so determined to the petitioners strictly in accordance with law, within a period of six months from the date a copy of this order is served upon them.