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2024 Supreme(JK) 487
IN THE HIGH COURT OF JAMMU & KASHMIR AN D LADAKH AT JAMM U LPA No. 158/2024 Reserved on: 18.09.2024 Pronounced on: 25 .09.2024
1 Pritam Singh 2. Puran Singh 3. Devi Singh sons of Rasal Singh resident of House No. 34,Vikram Chowk Jammu.
4. Shakuntala Devi wife of Parveen Singh resident of House No. 34, Vikram Chowk Jammu
5. Dalip Singh 6. Ajit Singh sons of Parveen Singh residents of House No.34 Vikram Chowk Jammu Appellants Through: Mr Jatinder Chowdhary Advocate Vs.
1 UT of Jammu and Kashmir through Commissioner/Secretary to Government Revenue Department,Civil Secretariat Jammu.
2. Deputy Commissioner Jammu
3. Collector Land Acquisition SDM R.S.Pura Jammu
4. Inspector General Border Security Force Jammu Frontier Ploura Jammu Through: Mr. Vishal Sharma DSGI.
CORAM:
HON’BLE MR. JUSTICE SANJEEV KUMAR,JUDG E HON’BLE MR. JUSTICE RAJESH SEKHRI, JUDG E
The Supreme Court's ruling on land acquisition is binding, and the provisions of the Act of 2013 do not apply to acquisitions initiated under the repealed Act of 1990.
Headnote:(A) Jammu and Kashmir Land Acquisition Act, 1990 - Section 4(1) - Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 - Section 24(1) - Appeal against dismissal of writ petition regarding land acquisition proceedings initiated under repealed Act - The Writ Court upheld the Collector's actions under the repealed Act, citing the Supreme Court's ruling in Bharat Petroleum Corporation Ltd. v. Nisar Ahmed Ganai, which clarified that the provisions of the Act of 2013 do not apply to acquisitions under the Act of 1990. (Paras 1, 5, 9)
(B) Legal Principle - The Supreme Court's judgment is binding and cannot be deemed per incuriam without substantial grounds. (Paras 6, 10)
Facts of the case:
The appellants challenged the final award of land acquisition proceedings initiated under the Jammu and Kashmir Land Acquisition Act, 1990, after the Act was repealed by the Act of 2013. The Writ Court dismissed their petition, affirming the legality of the Collector's actions.
Findings of Court:
The Writ Court found no error in the Collector's completion of land acquisition proceedings under the repealed Act.
Issues: Whether the provisions of the Act of 2013 apply to ongoing acquisitions under the repealed Act and the validity of the Supreme Court's judgment in Nisar Ahmed Ganai's case.
Ratio Decidendi: The court held that the Supreme Court's ruling is binding and that the Act of 2013 does not apply to acquisitions under the Act of 1990.
Result: Appeal dismissed.
JUDGMENT :
Sanjeev Kumar J
1. This intra-Court appeal by the appellants is directed against an order and judgment dated 30.05.2024 passed by a learned Single Judge of this Court [“the Writ Court”] in WP(C) No. 2789/2021 titled "Pritam Singh and others vs. UT of Jammu and Kashmir and others‟, whereby the Writ Court has dismissed the petition of the appellants on the basis of law laid down by the Supreme Court in the case of Bharat Petroleum Corporation Ltd. and others vs. Nisar Ahmed Ganai and others, 2022 AIR (SC) 5026.
2. Before we advert to the grounds of challenge urged by learned counsel appearing for the appellants, we deem it appropriate to state few facts which are germane to the disposal of controversy raised in this appeal.
3. Respondent No.3 issued a Notification under Section 4(1) of the Jammu and Kashmir Land Acquisition Act, 1990 Svt. [“Act of 1990”] on 14.05.2019 for acquisition of land for construction of 135 feet wide composite bundh on the Indo-Pak Border. While the process of acquisition was on, and the Notification under Section 6 was yet to be issued, the Act of 1990 came to be repealed and replaced by the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 [“the Act of 2013”]. The act of 2013 was enforced in the State of Jammu and Kashmir w.e.f 31.10.2019 i.e at the commencement of Jammu and Kashmir Reorganization Act, 2019 [“the Act of 2019”]. The respondent No.3 continued with the land acquisition proceedings under the Act of 1990 and published his final award on 01.03.2021.
4. Feeling aggrieved, the appellants filed WP(C) No. 2789/2021 seeking, inter alia, a writ of certiorari quashing the final award dated 01.03.2021 and a writ of mandamus to the respondent No.3 to complete the acquisition proceedings within a period of three months as per the mandate of Section 24(1) of the Act of 2013. The writ petition was contested by the respondents who took a plea that Section 24 of the Act of 2013 was not attracted in the case of land acquisition proceedings under the Act of 1990 and, therefore, the land acquisition proceedings initiated under the repealed Act would not lapse. It was, thus, contended that the Collector Land Acquisition committed no error of law by proceeding with the land acquisition proceedings under the Act of 1990 and publishing the final award.
5. The Writ Court considered the issue in the light of law laid down by the Supreme Court in the case of Nisar Ahmed Ganai (supra) and held that there was no error of law committed by the Collector in completing the land acquisition proceedings under the Act of 1990.
6. The plea of the learned counsel for the appellant, that the judgment of the Supreme Court was per incuriam, in that, the relevant provisions of the Jammu and Kashmir Reorganization (Removal of Difficulties) Order, 2019 had not been brought to the notice of the Supreme Court and, therefore, had escaped consideration, was not accepted by the Writ Court. The writ petition was, thus, dismissed vide order and judgment impugned in this appeal.
7. The impugned order and the judgment is assailed by the appellants, inter alia, on the ground that, with the coming into force of the Act of 2013, the Act of 1990 has ceased to exist and, therefore, the award is required to be passed by the Collector under the Act of 2013. This aspect of the matter, though vehemently raised, was not considered in right perspective by the Writ Court. The impugned judgment is also assailed on the ground that the Writ Court could not have dismissed the petition of the appellants by relying upon the judgment rendered in Nissar Ahmed Ganai’s case (supra) which was per incuriam and passed by the Supreme Court without taking into consideration the provisions of Sections 95, 96, 97 and 103 of the Jammu and Kashmir Reorganization Act, 2019, clauses 2(5), 2(13) and 2(14) of the Jammu and Kashmir Reorganization (Removal of Difficulties) Order, 2019 and clauses 3, 4 and 6 of Jammu a
