Balkrishan vs State of J&K

Thakur, J.—The present LPA has been preferred against judgment and order dated 27.02.2015.

Briefly stated, the material facts are as under:

Acquisition proceedings were initiated by the Collector, Land Acquisition (SDMP Bhaderwah) and in that regard a notification dated

22.12.2006 under Section 4(1) of Jammu and Kashmir Land Acquisition Act, 1990 (for short the Act of 1990) appears to have been issued

whereby 57 kanals 8 marlas of land situate at Village Sungli, Tehsil Bhaderwah, was proposed to be acquired for a public purpose, i.e.,

Construction of a University Campus.

After completing the requisite formalities, a final award dated 12.01.2008 came to be passed in regard to 27 kanals and 18 marlas of land

which included 02 kanals and 13 marlas of land belonging to the appellant's father, namely, Dina Nath under Khasra No. 217.

In the first round of litigation, the appellant filed a writ petition being OWP No. 1171/2012 expressing his grievances before the Writ Court that

the official respondents had proceeded with the acquisition proceedings without considering the objections filed by him. The said writ petition was

disposed of vide order dated 23.08.2012 with a direction to the respondents to accord consideration to the objections which were claimed to

have been filed by the appellant and to proceed in accordance with law.

It is clear from the record that by that time, even the final award had been passed by the Collector vide order dated 12.01.2008, which would,

thus, make it clear that the petitioner had concealed the factum of passing of the award from the writ Court.

In the second round of litigation, the appellant filed another writ petition being OWP No. 459/2013 expressing his grievance once again to the

effect that the objections, which were otherwise required to be considered by the official respondents, had not been so considered and that based

upon the acquisition proceedings initiated by the official respondents, he was forcibly dispossessed. It was, thus, claimed that the statutory

provisions which enjoined the official respondents to consider the said objections especially in terms of Section 5 of the Act of 1990, were being

violated.

The writ court having considered the entire issue came to a conclusion that the writ petition was barred by delay and laches, inasmuch as, the

same had been filed after a lapse of more than four years from the passing of the final award. The Writ Court also placed reliance upon an Apex

Court judgment rendered in the case of Municipal Corporation of Greater Bombay v. Industrial Development and Investment Company

(P) Ltd., (1996) 11 SCC 501, which held that after the award is passed and possession taken, the writ court should not exercise its discretionary

power to quash the award enshrined under Article 226 of the Constitution of India.

Counsel for the appellant placed reliance upon a judgment of the Apex Court rendered in case reported as Raghbir Singh Sehrawat v. State

of Haryana and others, (2012) 1 SCC 792, to urge the proposition that the Apex Court had, in fact, interfered with the award on account of

violation of Section 5(A) of the Act of 1990, post the making of the award.

What is important to note here is the fact that in the aforementioned judgment relied upon by the learned counsel for the appellant, the Apex

Court, upon examination of the relevant facts, had come to a conclusion that the possession of the acquired land had not been taken from the

appellant on the day on which the award was passed by the Collector (Land Acquisition) because crops were standing on the several parcels of

land including the appellant's land and possession thereof could not have been taken without giving notice to the land owners.

Heard the counsel for the parties.

On perusal of the judgment impugned, it appears that a specific finding has been recorded regarding the fact that pursuant to the passing of the

final award on 12.02.2008, mutation No. 1309 in respect of the entire acquired land including the land owned by the appellant's father was

attested in favour of the indenting department on 17.05.2008 and the mutation stood reflected in Khasra entry for the year 2008 (Rabi). It was,

thus, held by the writ court that the petitioner could not be presumed to be in possession of the land after the passing of the final award and

attestation of mutation No. 1309, as the possession of the land was handed over to the indenting department after passing of the final award in the

year 2008, and continued with the said department since then. The ratio of the judgment of the Apex Court in Municipal Corporation's case

(supra), squarely applies to the facts of the present case. What was stated in paragraph 29 of the judgment in the aforementioned case is being

reproduced below:-

It is thus well settled law that when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings

have become final, the Court should be loathe to quash the notifications. The High Court has, no doubt, discretionary powers under Article 226 of

the Constitution to quash the notification under Section 4(1) and declaration under Section 6. But it should be exercised taking all relevant factors

into pragmatic consideration. When the award was passed and possession was taken, the Court should not have exercised its power to quash the

award which is a material factor to be taken into consideration before exercising the power under Article 226. The fact that no third party rights

were created in the case, is hardly a ground for interference. The Division Bench of High Court was not right in interfering with the discretion

exercised by the learned Single Judge dismissing the writ petition on the ground of laches.

In the present case, the petition having been filed much after the passing of the award after the possession stood taken, exercise of jurisdiction

under Article 226 of the Constitution of India is not considered appropriate in terms of the law settled herein above. Even otherwise, the petition

suffers from delay and laches as has rightly been held by the writ court.

Having considered the submissions made by the counsel for the parties, we are of the opinion that the writ Court has committed no error either

in law or on facts in dismissing the petition by following the Municipal Corporation of Greater Bombay's case (supra).

We cannot persuade ourselves to take a view different from one already taken by the learned Single Judge.

For the above stated reasons, this appeal is found to be without any merit and is, accordingly, dismissed.