Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(J&K) 408

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR
N. KOTISWAR SINGH, M.A. CHOWDHARY, JJ.
Khurshid Ahmad Nazki, S/o. Mohammad Mubarak Shah alias Nazki & Ors. - Appellants
Versus
Union Territory of Jammu and Kashmir through Commissioner/ Secretary to Government, Revenue Department, Civil Secretariat & Ors. - Respondents
LPA No. 85 of 2023, CM No. 2855 of 2023
Decided On : 01-09-2023

Advocates Appeared:
For the Appellant :Mr. Jahangir Iqbal Ganai, Sr. Advocate, with Ms. Mehnaz Rather, Mr. Junaid Bin Azad and Mr. Syed Faheem.
For the Respondent: Mr. Mohsin S. Qadri, Sr. AAG, with Ms. Maha Majid, Mr. Rabinder Singh.

The main legal point established in the judgment is that the RFCTLARR Act, 2013 was not applicable in the present case, and the land acquisition proceedings should continue under the J&K Land Acquisition Act, 1990.

Headnote:
Land Acquisition - Jammu and Kashmir Reorganisation Act, 2019 - J&K Land Acquisition Act, Svt. 1990 - RFCTLARR Act, 2013 - Section 4(1), Sections 6, 7, 9 & 9A - The court held that the impugned notification dated 17.03.2022 was a corrigendum of the earlier notification and not a fresh land acquisition proceeding. The court also concluded that the RFCTLARR Act was not applicable in the present case and that the land acquisition proceedings should continue under the J&K Land Acquisition Act, 1990. The court directed a fresh demarcation of the land and measurement of the standing property/buildings in the presence of the appellants, and ordered a 20% increase in the compensation amount as directed by the learned Single Judge.
Fact of the Case:

The appellants, owners of land in Village Mamath, Budgam, challenged the land acquisition proceedings initiated under the J&K Land Acquisition Act, Svt. 1990. They contended that the relevant law applicable for the acquisition of their proprietary land in 2022 was the RFCTLARR Act, 2013, and that the entire proceeding was vitiated due to non-adherence to its provisions. The authorities had issued a fresh notification under Section 4(1) of the Act of 1990 on 17.03.2022, which included the land of the appellants, leading to the filing of the writ petition.
Finding of the Court:

The court found that the impugned notification dated 17.03.2022 was a corrigendum of the earlier notification and not a fresh land acquisition proceeding. It concluded that the RFCTLARR Act was not applicable in the present case and that the land acquisition proceedings should continue under the J&K Land Acquisition Act, 1990. The court directed a fresh demarcation of the land and measurement of the standing property/buildings in the presence of the appellants, and ordered a 20% increase in the compensation amount as directed by the learned Single Judge.
Issues: The main issues were whether the RFCTLARR Act was applicable in the present case, and whether the impugned notification dated 17.03.2022 was a corrigendum of the earlier notification or a fresh land acquisition proceeding.
Ratio Decidendi: The court held that the impugned notification dated 17.03.2022 was a corrigendum of the earlier notification and not a fresh land acquisition proceeding. It also concluded that the RFCTLARR Act was not applicable in the present case and that the land acquisition proceedings should continue under the J&K Land Acquisition Act, 1990. The court directed a fresh demarcation of the land and measurement of the standing property/buildings in the presence of the appellants, and ordered a 20% increase in the compensation amount as directed by the learned Single Judge.
Final Decision: The court disposed of the appeal, affirming the impugned judgment and order dated 03.05.2023 passed by the Ld. Single Judge in WP(C) No.175/2023, with modifications. It directed a fresh demarcation of the land and measurement of the standing property/buildings in the presence of the appellants, and ordered a 20% increase in the compensation amount as directed by the learned Single Judge.

JUDGMENT :

N. Kotiswar Singh, J.

1. The present appeal has been filed against the order dated 03.05.2023 passed by the Ld. Single Judge in WP(C) No.175/2023, by which the learned Single Judge declined to interfere with the Award passed under the Land Acquisition Act, Svt. 1990, (hereinafter referred to as the Act of 1990)even though it gave a finding that the notification issued by the authorities under Section 4(1) of the Act of 1990, is not tenable in law and the relevant law that was applicable for the acquisition of proprietary land of the petitioner appellants in the year 2022 was the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (RFCTLARR Act) and disposed of the writ petition by enhancing the compensation payable to the petitioner appellants under the award by 20%.

2. The case set up by the appellants is that they are the owners in possession of land measuring 08 kanals and 08 marlas falling under survey no.620/37 (04 kanals 01 marlas) and 1109/37 (04 kanals 17 marlas) at Village Mamath, Budgam, and had constructed a residential house on the said land in the year 2016 by investing huge amounts of more than Rs. 10 crores, where they are presently residing.

3. A notification under Section 4(1) of the J&K Land Acquisition Act, Svt. 1990 came to be issued for acquiring land measuring 94 kanals, 06 marlas and 147 sq. ft. for the construction of Semi Ring Road around Srinagar City in District Budgam in village Mamath on 28.03.2019 as part of the National Highway Project.

4. According to the appellants, the said notification did not include the land owned and possessed by the appellants. However, subsequently, without concluding the acquisition process initiated under the notification issued under Section 4(1) of the Act of 1990 on 28.03.2019, and at the instance of the Respondent no.12, the authorities altered the Detail Project Report (DPR) and issued a fresh notification under Section 4(1) of the Act of 1990 on 17.03.2022 which included the land of the appellants measuring 04 kanals, 14 marlas, 90 square feet, falling under survey No. 37, which was objected to by the appellants by filing objections. As the said objections were not considered, the appellants approached this Court by filing a writ petition being WP(C) No.717/2022, which was disposed of at the threshold with liberty to the appellants to approach the Collector for consideration of their objections as per law. The objections were rejected by the Collector on 02.06.2022 and on the contrary, the Collector directed that notifications under Sections 6 and 7 of the J&K Land Acquisition Act, Svt. 1990 be issued.

5. Thus, being aggrieved, the appellants again approached this Court by filing a writ petition being WP(C) No.175/2023 challenging the notification issued under Section 4(1) on 17.03.2022, and notification issued under Sections 6 of the Act of 1990 on 04.08.2022, as also the notification dated 26.09.2022 issued under Sections 9 & 9A of the Act of 1990.

6. In their response to the said writ petition, the respondents stated that the tentative award had been already notified on 11.04.2022 under the Act of 1990 and notice under Section 12(2) of the Act of 1990 had been issued on 11.04.2023 inviting objections from the interested persons, leading to filing of an application by the appellants seeking amendment of their writ petition to challenge the subsequent proceedings and passing of the final award. According to the appellants, the Writ Court without considering the amendment application, disposed of the writ petition vide impugned judgement and order dated 03.05.2023, and declined to interfere with the land acquisition proceedings despite holding that the relevant law that was applicable for the acquisition of proprietary land of the petitioner appellants in the year 2022 was not the J&K Land Acquisition Act of Svt. 1990, but the RFCTLARR Act.

7. The Ld. Single Judge, however, held that since the land acquisi