Hans Raj And Others vs State Of J&K And Others

Heard Sh. R.S.Thakur, Senior Counsel assisted by Sh. Vasharan Thakur, learned counsel for the petitioners, Sh. S.S.Nanda, learned Senior Additional Advocate General for respondent Nos. 1 to 3 and Sh. Ajay Sharma, learned counsel for respondent Nos. 4 and 5.

The petitioners, all sons of Badloo Kotwal, have preferred this writ petition under Article 226 of the Constitution of India, seeking quashing of the notification dated 12th November 2013 issued under Section 4 (1) of the Jammu and Kashmir State Land Acquisition Act, 1990 (for short ‘the Act’) and the declaration issued vide notification dated 8th July 2015 issued under Section 6 of the Act as well as for quashing of all other decisions or acts flowing out of the aforesaid notifications and to restrain the respondents from proceedings ahead with the acquisition of the land mentioned in paragraph No. 2 of the writ petition situate in village Dhanour Tehsil Arnas District Reasi.

The relief claimed as above by the petitioners in the writ petition is reproduced herein below for the sake of convenience:-

“Petition for a writ, order or direction in the nature of Certiorari or any other appropriate writ, seeking to call for the relevant record and quash the notification of the Collector Land Acquisition (Northern Railway), Camp Office Arnas (Sub Divisional Magistrate Mahore), No. SDM/M/CLA/NR/2013-14/123-30 dated 12 November 2012, under Section 4 (1) of the Land Acquisition Act, the recommendation/report of the Collector, No. SDM/CLA/NR/A/2015/10-11 dated 20 April 2015 in terms of Section 5-A of the said Act, the declaration by the Deputy Commissioner Reasi by notification No. 185/N/DC/Reasi of 2015, issued vide No. DC/RSI/15-16/1161-64/SQ dated 8 July 2015, under Sections 6 and 7 of the Act, the notification of the Collector, No. SDM/M/CLA/2015-16/31-37 dated 13 February 2016, under Section 9 and 9-A of the Act, and all other decisions, acts, deeds and things in follow up and otherwise; and to restrain the concerned respondents from proceeding ahead with the acquisition on the basis of the aforesaid notifications and from changing the nature and character of the land of the petitioners comprised in the proposal of acquisition; and to grant any other writ, order or direction that this Hon. Court may deem just, fit and proper in the facts and circumstances of the present case.”

The aforesaid notifications reveal that the land was notified for acquisition for the public purpose of construction of feeder road and helipad at village Dhanour Tehsil Arnas District Reasi.

Respondent Nos. 4 and 5, i.e., the Deputy Chief Engineer (Construction), Northern Railway, Reasi and Union of India through Secretary, Railway Department, New Delhi have filed common objections in response to the writ petition.

It has been stated therein that the indenting department has asked for the withdrawal of acquisition. The declaration issued under Section 6 of the Act has been withdrawn in terms of SRO 25 dated 28.01.2016.

The fact that the above declaration made under Section 6 of the Act has been withdrawn by the above SRO is not disputed from the side of the petitioners.

In view of the above, as there is no declaration under Section 6 of the Act notifying final acquisition of the land, it is clear that the land has not been acquired. The issuance of notification under Section 4 of the Act is only a proposal to acquire the land and it is meaningless until and unless final declaration to acquire it issued under Section 6 of the Act.

It may be pertinent to mention here that till date even no award in respect of the aforesaid acquisition has been pronounced and no material has been brought on record to establish that the possession of the land was taken over pursuant to the aforesaid acquisition, inasmuch as no memo of possession has been brought on record and date of possession has been pleaded.

In view of the aforesaid stand taken by the respondents, since the land has not been finally acquired, there is no necessity for quashing of any of the notification and it is held that the land of the petitioners is free from acquisition.

Sh. R.S.Thakur, Senior counsel submits that the land is being utilized by the respondents for running a helipad and that huge machinery has been installed therein with the result that the land has become useless for the petitioners and it cannot be utilized unless the respondents are directed to vacate the same and to restore its possession to the petitioners in its original shape.

In this connection, he has placed reliance upon paragraph No. 3 of the counter-affidavit filed on behalf of respondent Nos. 4 and 5, wherein it has been stated that the land is in possession of the Railway on lease basis and a helipad is being run thereon.

In response to the above submission, Sh. Ajay Sharma, learned counsel for respondent Nos. 4 and 5 submits that independent to the above acquisition, the petitioners have leased out the said land to Konkan Railway Corporation Limited (KRCL), a Government of India Undertaking, much before the land was notified for acquisition. He has placed reliance upon Annexure-R-6, which contains four lease agreements, three of which are dated 12.04.2012 and the fourth is dated 09.11.2012. In the said lease agreements, some of the petitioners have agreed to lease out their land in favour of KRCL for a term of twelve months with effect from 01.01.2012 with the renewal clause for further period of two years on payment of certain lease rent to use the land for the construction of road, storing of material for temporary use etc. It also provides that the lease will take away/remove its installed equipments and restore it to the condition as existed at the time of lease as and when the lease comes to an end.

The statement in the counter-affidavit that the land is in possession of the Railways refers to the possession of the land on lease basis by the KRCL which is totally an independent and separate from the acquisition of the land. It is not disputed that the petitioners have been paid lease rent up to 2016.

The KRCL is not a party before us in this writ petition. The petitioners have a separate cause of action against the KRCL either for the payment of the lease rent or for vacating the land and restore it in its original shape to the petitioners. This writ petition is not an appropriate remedy for all such reliefs and the said reliefs are beyond the reliefs claimed in the writ petition.

Accordingly, we are of the opinion that as the respondents have withdrawn from the acquisition and there is no acquisition of the land, the petitioners are not entitled to any relief claimed in the writ petition. It is open to the petitioners to take appropriate remedies, as may be available to them in law for the other reliefs.

The writ petition stands disposed of with the above observation.