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Judgment
Puneet Gupta, J
The Collector, Circular Road Project, Srinagar issued Notification under Section 4(1) of J&K Land Acquisition Act (hereinafter referred to as “Act”) bearing endorsement No. C/CRP/LA/766-79 dated 14.09.2004 for the purposes of widening of Indira Gandhi Road at Haft Chinar (Nursing Garh), Srinagar in pursuance to the indent issued by the Executive Engineer, PWD (R&B Department) vide No. 15238-15297 dated 10.09.2004. The properties of the petitioners were also required to be acquired under the Act for the purposes of the project. In pursuance to aforesaid notification, a High Level Committee constituted by the Government entered into negotiations with the claimants and consequently many claimants agreed with the decision taken by the High Powered Committee and surrendered the possession to the indenting department. However, with regard to the structures No. 02, 04 13 and 14 the negotiations were not successful and further proceedings were undertaken by the Collector in terms of the Act. It was decided that declaration under Section 6, 7 & 17 of the Act is to be issued as is evident from the communication No. FC-LS/LA-2849/08 dated 05.08.2008 from Deputy Commissioner (with Financial Commissioner) to the Commissioner/Secretary to Government, Revenue Department. The Government then issued notification No. 323-RD of 2008 dated 16.10.2008 under Section 6, 7 & 17 of the Land Acquisition Act with a direction to take possession of the land to be acquired subject to the completion of all the formalities under the Act. Thereupon a notification under Section 9 and 9A of the Act came to be issued by the Collector vide endorsement No. DIPK-7074 dated 04.11.2008 and the interested persons were asked to file their claims. It transpires that, later on, some of the structures for which the notification was earlier issued were de-notified vide notification No. C/CRP/1864-75 dated 20.11.2009 in pursuance to the communication from the Executive Engineer (R&B) bearing communication No. DC/104/23957-61 dated 01.08.2008. The structures de-notified were mentioned in the de-notification notice. After the issuance of de-notification the respondent-Collector again issued notice in terms of Section 6 of the Act vide No. 858-64/LAC/1871 dated 11.01.2010. The notification under Section 9 and 9A of the Act also came to be issued by the Collector vide No. C/CRP/2263-70 dated 18.11.2010. On the completion of the formalities the Collector passed the final award on 10.12.2010 which was impugned in the writ petition.
The grievance raised by the petitioners in the writ petition was that the fresh notification in terms of Section 4 of the Act was not issued though required under the Act as there was modification of the original acquisition notice issued under Section 4 of the Act and, therefore, all the subsequent proceedings which took place in the matter were void ab- initio. The award passed by the Collector was nullity.
The petition was contested by the respondents and the claim set up by the petitioners was negated by the respondents through detailed reply. The writ petition was disposed of by the learned Writ Court vide judgment dated 20.03.2018, and the same is under challenge in the present Appeal.
The perusal of the judgment reveals that the writ petition has been decided mainly on the ground that though compulsory acquisition was made by the respondents, yet the respondents failed to provide 80% of the compensation assessed by the Collector before taking possession as required under Section 17 of the Act. The court held that the said action of Collector is as an illegal exercise of the power and thus vitiates the award.
The Writ Court while relying upon the judgment passed by the learned Single Judge (one of us Magrey J.) of this Court in OWP 47/2013 titled Mohammad Ashraf Sofi & Ors v. State and Ors dated 09.12.2013 and that the judgment has been complied with by the respondents held the case of present petitioners akin to the case of the petitioners in OWP 47/2013 (supra), passed by the Coordinate Bench, granted the relief in the writ petition as under:-
“The cumulative effect of all that has been said and done above, is that the writ petition on hand is disposed of, and impugned Award dated 10.12.2010 bearing endorsement no.C/CRP/632-40 issued by the Collector, Circular Road Project, Srinagar, is quashed. The respondents 3 to 7 are directed to submit the case of the petitioners to the High Level Committee, headed by the Divisional Commissioner, Kashmir, for fixation and payment of adequate compensation for the building structures and in terms of the package related to such structure in the form of providing residential plots for dislocated families. The respondents shall also pay compensation in lieu of the shops acquired from the petitioners on the analogy of similarly situated shopkeepers. The petitioners' case shall be submitted by respondents 3 to 7 to the High Level Committee within a period of three weeks from the date copy of this order is served upon the Deputy Commissioner, Srinagar and the Collector, Circular Road Project, Srinagar. The Divisional Commissioner, Kashmir - respondent no.2, shall take a decision in light of the directions for payment of adequate compensation and for providing the plot of the land in favour of the petitioners within a period of two months thereafter”.
The appellants herein have challenged the judgment of the writ court on the ground that the Writ Court did not appreciate the facts of the case in their right perspective and, more particularly, the fact that the final award has been passed by the competent authority with complete application of mind. The award once passed could not be challenged by the petitioners in the writ petition. On the aforesaid ground, the judgment impugned is sought to be set aside.
Mr. M. A. Chashoo, learned AAG appearing on behalf of the appellants has reiterated what has been pleaded in the appeal. Learned AAG has argued that notification issued under Section 4 of the Act was not required to be issued again as no fresh acquisition was being made and, infact, some portion of the property of the petitioners was only de-notified. No prejudice was caused to the petitioners for want of the notice under Section 4 of the Act. It is further submitted that the petitioners had participated in the negotiations earlier and had even presented themselves after the de-notification of the properties which took place in the matter resulting in passing of the final award by the Collector on 10.12.2010. Once the award was passed, there was no occasion for the petitioners to challenge the same, more so, when there was no illegality in the proceedings initiated in the matter. The written arguments also stand filed by the appellants.
Mr. M. I. Qadiri, learned Senior Counsel and Mr. G. A Lone, learned counsel appearing for the respondents have supported the judgment passed by the learned Writ Court. The specific argument of the respondents is that, in view of the admitted fact that no fresh notice under Section 4 of the Act was issued after the de-notification of the earlier notice, the subsequent proceedings taken out by the Collector were illegal and the award passed by the Collector had no force in law. The petitioners were not given statutory period to present their objections before the Collector as mandated under the Act and were deprived of their right to present themselves in an effective manner before the Collector though the notifications under Section 6, 9 and 9A of the Act were again issued by the Collector. The precise submission on behalf of the respondents is that issuance of notice under Section 4 of the Act was sin qua non before proceeding further under the Act after de-notification notice was issued by the Collector qua the properties of which the mention was made in the de-notification notice. Indeed, the learned counsels for the respondents have supported the judgment impugned in the present LPA.
It is profitable to mention herein that the petitioners in the writ petition had prayed for quashment of the award dated 10.12.2010, passed by the Collector, and fresh notifications issued under Section 6, 9, & 9A of the Land Acquisition Act and sought direction to provide the houses to the petitioners and as per the decision taken in terms of two meetings held on 15.03.2006 and 03.04.2006 under the Chairmanship of Divisional Commissioner, Kashmir. As mentioned above, the ground taken by the petitioners in the writ petition while challenging the award was confined to non-issuance of fresh notification under Section 4 of the Act after some of the structures were de-notified after issuance of notice under Section 4 of the Act. This Court after going through the judgment of the Writ Court finds that the Writ Court has decided the writ petition on the ground of non-compliance of Section 17 of the Act which was not specifically taken by the petitioners in the writ petition. The Writ Court did not deal with the issue of Section 4 of the Act as agitated by the petitioners in the writ petition. There is no finding by the Writ Court as to whether there was any requirement for issuance of fresh notice in terms of Section 4 of the Act in the facts and circumstances of the case after de-notification and the consequences which ought to follow in case compliance of Section 4 was to be held compulsory. Although the Writ Court had detailed out the facts of the case in the judgment, in the opinion of this Court, the learned Writ Court has not addressed the main issue on the basis of which the writ petition was filed. The court also appears to have not delved into the impact of non-payment of compensation assessed by the Collector though the structures of the petitioners came to be demolished only after more than one year of passing of the award by the Collector. It may be mentioned that the claimants-petitioners are stated to have received by now the compensation assessed by the Collector in pursuance to the award passed on 10.12.2010 though the learned counsel for the claimants submits that the compensation was received under protest.
The learned Single Judge has failed to record finding on the main issue, as observed above, in the writ petition. Though the arguments on legal aspects of the case have been made yet this court is of the opinion that the legal issues in conjunction with factual aspects of the matter are required to be decided in the writ petition by the Writ Court. This Court does not intend to express any opinion as far as the relief granted by the Writ Court on the basis of the judgment passed in case of Mohammad Ashraf Sofi (supra) is concerned as the matter has been remanded to the Writ Court for fresh consideration.
Learned Counsel for the parties have referred to the judgments as per their respective stand taken during the course of arguments. However, the court need not refer the same keeping in view the fact that this Court has held that the Writ Court has not addressed the issue which was primarily raised in the writ petition and was required to be decided by the Writ Court.
Keeping in view the discussion made above, the judgment impugned is set aside. Accordingly, the learned Single Bench hearing OWP matters is directed to hear the matter afresh after summer vacations and decide the petition keeping in view the contentions raised in the writ petition.
Record produced by Mr. M. A. Chashoo, learned AAG is returned to him in the open court.