SWEETY KANTROO AND ORS vs STATE OF JAMMU & KASHMIR AND ORS

In this Intra Court Appeal, the appellants have assailed the validity of order dated 23.11.2012 passed by the learned Single Judge in OWP No.

1382/2011 filed by the appellants, which has been disposed of with a direction to the Collector, Land Acquisition, Anantnag to accord consideration to

the apportionment and disbursement (unless already disbursed) of compensation amount amongst the legal heirs of the deceased estate holder, of

course having due regard to the stand taken by respondent No. 2 and provisions of the Land Acquisition Act. The Collector, Land Acquisition,

Anantnag was also directed to complete the process preferably within three months. Â

The facts giving rise to the filing of this Intra Court Appeal briefly stated are that the appellants and respondent No. 5 claim to be the owner of the

property admeasuring 10 kanals and 8 marlas; under survey No. 458, 9 kanals and 17 marlas and under survey No. 466, 11 marlas, situate at village

Akingam. A meeting was convened under the Chairmanship of the Deputy Commissioner, Anantnag, in which 12 officers participated and without

the consent of the appellants and respondent No. 5 and without adhering to the procedure prescribed under the Land Acquisition Act, Svt. 1990,

decided to acquire the suit property for development of tourism village @ Rs. 2 lacs per kanal as reported by the Tehsildar Kokernag. On 02.06.2007,

one of the appellants submitted an application to the Tehsildar Kokernag for attestation of mutation in favour of the appellants and their brother, which

has been attested in favour of the appellants and respondent No. 5 in equal shares vide mutation No. 2232 dated 30.05.2015. A circular came to be

issued by the State Government on 14.07.2009, by which it was directed to all the Deputy Commissioners not to acquire any migrant property for any

public purposes, if the land is available in the vicinity.Â

The appellant No. 1 moved a representation on 02.09.2009 to the Deputy Commissioner, Anantnag, who is the custodian of migrant property under

the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997, averring therein to

remove the illegal construction by tourism department. However, the representation submitted by the appellant No. 1 failed to evoke any response.

Thereupon, the appellants approached this Court by way of a writ petition bearing No. OWP No. 1382/2011, which was disposed of by a Bench of

this Court on 23.11.2012. The said order reads as under :-

“The subject matter of the writ petition is admitted to be acquired by the State Government for developing village Akingam, Kulgam as a tourist

village. Petitioner claims to be the legal representative of the estates holder and entitled to part of compensation assessed by the Collector, Land

Acquisition, Anantnag. Her Claim is resisted by respondent No. 5 on the plea that the subject matter of petition is coparcenary property and that the

petitioner as daughter of the estates holder, cannot claim any interest.Â

Be that as it may, the controversy emerging from the pleadings, is factual in character and cannot be dealt with by this Court in exercise of writ

jurisdiction.Â

The writ petition in the circumstances, is disposed of with a direction to the Collector, Land Acquisition, Anantnag to accord consideration to the

apportionment and disbursement (unless already disbursed) compensation amount amongst legal heirs of the deceased estate holder of course having

due regard to the stand taken by respondent No. 2 and provisions of land Acquisition Act, The Collector Land Acquisition, Anantnag shall complete

the process preferably within three months.â€​

When the matter was taken up today, learned counsel for the appellants submitted that the land of the appellants has been acquired by the

respondents without taking recourse to the provisions of Land Acquisition Act, Svt.1990. It is further submitted that land has been acquired in

contravention with the circular issued by the State Government dated 14.07.2009, which provides not to acquire any migrant property for any public

purposes, if the land is available in the vicinity. It is further submitted that the appellants had brought to the notice of learned Single Judge the

judgments in the cases of Kanwar Manmohan Krishan Koul and others vs. State of J&K and others, in OWP No. 941/2004, passed by the Division

Bench on 21.05.2009, J&K Housing Board and anr. vs. Kanwar Sanjay Krishan Koul and others, 2011 (12) Scale 434, Kulsum R. Nadiadwala vs.

State of Maharashtra and others, Civil Appeal No. 4473 of 2000 and the Collector Allahabad and anr. vs. Raja Ram Jaiswal Etc. 1985 AIR 1622

and have raised all the submissions which have been referred to supra in detail.Â

On the other hand, learned Deputy Advocate General submitted that the respondents were not afforded any opportunity, in particular, to file

objections and the dispute is inter se between the appellants and respondent No. 5 and the writ petition was disposed of with the consent of learned

counsel for the appellants and learned counsel for the respondent No. 5. Learned counsel for the respondent No. 5 submitted that she supports the

submissions made by the learned counsel for the appellants.

We have considered the submissions made by the learned counsel for the parties and have perused the record. From the perusal of the order,

which is extracted in the preceding paragraph, it is evident that none of the submissions referred to above by the learned counsel for the appellants

before us has been recorded by the learned Single Judge. It is well settled in law that if the order does not reflect the facts correctly and does not

record the submissions made by the parties, appropriate remedy is to file an application for review to the concerned Court. In this connection,

reference is made to the decisions of the Supreme Court in the cases of State of Maharashtra vs. Ramdas Shrinivas Nayak, AIR 1982 SC 1249,

Bhavnagar University vs. Palitana Sugar Mill (P) ltd. and others. (2003) 2 SCC 111 and Md. Rafique @ Chachu vs. State of West Bengal, (2008) 15

SCC 289.

Thus, in the peculiar facts of the case, instead of relegating the matter, we are inclined to quash the order dated 23.11.2012 passed by the learned

Single Judge, as the learned Single Judge has failed to take note of all the grievances of the appellants and various contentions raised by them.

Accordingly, the order dated 23.11.2012 passed in OWP No. 1382/2011 is hereby quashed and the matter is remitted to the learned Single Judge to

decide the same afresh in accordance with law. Since the writ petition is of the year 2012, we request the learned Single Judge to dispose of the

same expeditiously, preferable within two months from today.Â

Accordingly, the Letters Patent Appeal is disposed of along with connected MPs.