2022 Supreme(J&K) 373

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR
Sanjeev Kumar, Wasim Sadiq Nargal, JJ.
Gulzar Ahmad Akhoon & Ors. - Appellant
Vs.
UT of J&K & Ors. Respondent
WP(C) No. 1274 of 2020
Decided On : 16-11-2022

The provisions of Section 11-B of the 1990 Act shall not be applicable to the cases where the Government has invoked Section 17 and the Collector has scrupulously complied with the requirements of Section 17-A by tendering and making payment of 80 per centum of estimated compensation before taking possession, for, the land needed for public purpose would vests in the Government free from all encumbrances only when pursuant to invocation of Section 17, 80% of the estimated compensation is paid to the land losers and possession is taken over. Applicability of Section 11-B of the 1990 Act, however, shall not stand excluded by mere resort to Section 17 of the 1990 Act unless the procedure provided therein and prerequisites contained in Section 17-A are scrupulously complied with.

Headnote:

Land Acquisition - Lapse of Proceedings under Section 11-B of the 1990 Act - Delhi Airtech Services Pvt. Ltd. and Another v. State of U.P. and another, 2022 SCC Online SC 1048 - Sanjeev Kumar, J.

Fact of the Case:

The petitioners claim to be residents of village Wathoora, Budgam and are aggrieved of the communication of the Financial Commissioner, Revenue, bearing no. FC-LS/LA-4577/2017, dated 13.08.2020 whereby the Divisional Commissioner, Kashmir has been conveyed the approval of the competent authority to the adoption of rates of compensation in respect of different villages in District Budgam for construction of Semi Ring Road around Srinagar City. The petitioners also claim Writ of Mandamus to the respondents to initiate fresh land acquisition proceedings in respect of the land estate of the petitioners situated in Village Wathoora, Budgam, strictly as per the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 ["2013 Act"]. The acquisition proceedings initiated in terms of Notification dated 15.03.2017 issued under section 4 of the J&K Land Acquisition Act, 1990 ["1990Act"] have lapsed by afflux of time in view of the provisions contained in Section 11(B) of the 1990 Act. The final award in the instant case was passed on 11th August, 2020 when the 1990 Act stood repealed and replaced by the 2013 Act.

Finding of the Court:

The acquisition proceedings insofar as these pertain to the petitioners' land would lapse in view of the discussion on the legal issues made herein above in the light of the judgments of the Supreme Court. However, in the instant case as well, the relief to be granted to the petitioners deserves to be molded. The case of the petitioners is not an isolated and stand-alone one. The respondents have by virtue of notification issued under section 4 of the 1990 Act, which culminated into passing of award on 11.08.2020, notified land measuring 239 kanals 6 marlas and 136 sqft situate in village Wathora for acquisition. The land has been acquired for undertaking a very prestigious project viz. construction of the Semi Ring Road around Srinagar City, which, if constructed, will ease the traffic congestion on the internal roads of the Srinagar City, which, in turn, would help developing Srinagar city a smart city. Not only the acquired land has been taken over by the National Highway Authority of India but a large portion of the ring road has already been constructed. Major portion of the land belonging to the petitioners and other villagers acquired by the respondents has already been put to beneficial use. Out of hundreds of land losers of the village Wathoora and adjoining villages, who are affected by the land acquisition, only few have approached this Court complaining the lapse of the proceedings and passing of the award thereafter. As a matter of fact, the final award stood passed on the date, the writ petition was filed by the petitioners but no specific challenge has been laid. Without going into the technicalities of not challenging the final award and having regard to the legal position adumbrated above, we are of the view that the ends of justice would meet, if we pass following order.

Issues: (i) Whether the acquisition proceedings initiated by the Collector Land Acquisition by issuing notification dated 15th March, 2017 under section 4 of the 1990 Act have lapsed on account of failure of the Collector to make an award under section 11 within a period of two years from the date of publication of declaration under section 6 of the 1990 Act? (ii) Whether the provisions of Section 11-B of 1990 Act would apply to the land acquisition where the Government invokes special powers in case of urgency vested by Section 17 of 1990 Act? (iii) What is the impact on the land acquisition proceedings initiated and pending under the 1990 Act by its repeal and replacement by 2013 Act, which became applicable to the Union Territory from the appointed day i.e. 31st October, 2019 when the Jammu & Kashmir Reorganization Act, 2019 came into effect? (iv) What is the effect on the rights of the land losers, who have approached this Court to assail the acquisition proceedings as having been lapsed under section 11-B after passing of the final award and where the majority of land losers impacted by the acquisition proceedings have also accepted the compensation?

Ratio Decidendi: The provisions of Section 11-B of the 1990 Act shall not be applicable to the cases where the Government has invoked Section 17 and the Collector has scrupulously complied with the requirements of Section 17-A by tendering and making payment of 80 per centum of estimated compensation before taking possession, for, the land needed for public purpose would vests in the Government free from all encumbrances only when pursuant to invocation of Section 17, 80% of the estimated compensation is paid to the land losers and possession is taken over. Applicability of Section 11-B of the 1990 Act, however, shall not stand excluded by mere resort to Section 17 of the 1990 Act unless the procedure provided therein and prerequisites contained in Section 17-A are scrupulously complied with. In the instant case, we have found that Section 11-B of the 1990 Act is attracted in view of the failure of the Collector to strictly comply with the provisions of Section 17-A. We have found no evidence on record as to the assessment of estimated compensation and its tendering and payment to the persons interested and entitled thereto. Ordinarily, we could have declared the proceedings as having lapsed, however, being guided by the judgment of Supreme Court in Delhi Airtech Services Pvt. Ltd. (supra), we also deem it appropriate to mould the relief and instead of holding the acquisition proceedings as having lapsed, we direct the respondents as under.

Final Decision: The final award dated 11th August, 2020 insofar as it pertains to the petitioners is set aside. The Collector Land Acquisition, Budgam shall pass fresh award qua the petitioners only and for that purpose shall construe 11th August, 2020 (date of final award) as the relevant date for determination of market value but shall apply the yardsticks for assessment of compensation provided under the 1990 Act in respect of acquired land of the petitioners only. The Collector shall calculate other statutory benefits on such amounts including interest to be calculated and determined by taking into consideration the date of taking over possession i.e. 13th March, 2018. The date on which fresh award is passed in favour of the petitioners pursuant to this judgment and intimated to the petitioners shall be the date of cause of action for seeking enhancement of compensation under the 1990 Act, if the petitioners or any of them is dissatisfied with the quantum of compensation offered. While making payment of compensation assessed in terms of this judgment, the amount of compensation, if any, received by the petitioners shall be taken into account. That the compensation determined in favour of the petitioners pursuant to this judgment shall not give cause of action to any other land loser, whose land is acquired under the same notification to seek re-determination of the compensation.