Khurshid Ahmad Nazki & Anr vs Ut Of J&K And Others

Sanjeev Kumar, J

1) The petitioners are residents of Village Mamath Budgam and their grievance is against the notification of the Collector, Land Acquisition, Ring Road, Budgam, issued vide his No.DCB/LAS/016F-330/1358-67 dated 17th March, 2022, to the extent it notifies proprietary land of the petitioners measuring 04 kanals, 14 marlas and 19 sqft. Comprised under Survey No.37-min of Village Mamath, Budgam, for acquisition under Section 4(1) of the J&K Land Acquisition Act, Svt. 1990 (for short ‘the Act of 1990’).

2) The short grievance projected by the petitioners is that in the earlier notification issued on 28th of March, 2019, for acquisition of land in Village Mamath for construction of Ring Road in District Budgam, the land of the petitioners was not notified. It is the allegation of the petitioners that under the influence of respondent No.12, the alignment of the road was changed so as to bring within acquisition the proprietary land of the petitioners.

3) The legal point that is raised before me by learned counsel for the petitioners is that no notification under Section 4(1) of the Act of 1990 could have been issued in the year 2022 for the reason that due to coming into operation of the Jammu and Kashmir Reorganization act, 2019, the Act of 1990 had been repealed and replaced by Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 [“RFCTLARR Act”].

4) On behalf of respondents, it is contended by Mr. Qadiri, learned Sr. AAG, that the acquisition proceedings in respect of subject land and the land which was subject matter of impugned notification have been concluded and final award passed. He, therefore, submits that even if the contention of the petitioners is upheld, it would be difficult to turn the clock back. To justify the issuance of impugned notification under the Act of 1990, the learned Sr. AAG submits that the impugned notification issued in the year 2022 was not a new notification but was only in the shape of a corrigendum to the Section 4(1) notification issued on 28th of March, 2019.

5) Having heard learned counsel for the parties and perused the material on record, I am of the considered view that the impugned notification dated 17th of March, 2022, cannot, by any stretch of reasoning, be said to be either extension of Section 4(1) notification issued on 28th of March, 2019, or treated as a corrigendum thereto. The proprietary land of the petitioners was for the first time notified for acquisition in the year 2020 and consequently, notification under Section 4(1) was issued on 17th March, 2022. Admittedly, the Act of 1990 stood repealed with the coming into operation of the Jammu and Kashmir Reorganization Act, 2019. The law which was in force on the date the proprietary land of the petitioner was sought to be acquired was RFCTLARR Act. In that view of the matter, I am in agreement with learned counsel for the petitioners that the proprietary land of the petitioners could not have been acquired under the repealed Act.

6) Having regard to the admitted position explained above, this Court would have been left with no option but to quash the entire acquisition proceedings which have culminated into issuance of final award. However, having regard to the fact that the land acquired is meant for construction of a Ring Road, which is a very prestigious project of public importance, it would not be in the interests of justice to set the clock back and direct the respondents to issue fresh notification for acquisition of the subject land.

7) This Court was confronted with somewhat similar situation in OWP No.424/2018 titled ‘Land Owners of Village Suthsoo and others vs. State of J&K and others’.

What was held by this Court in the aforesaid judgment applies to all fours to the case on hand.

8) In view of the aforesaid, this petition succeeds to the extent that process of acquisition embarked upon by the respondents by issuing Section 4(1) notification under the Act of 1990 is found not tenable in law. The relevant law that was applicable for acquisition of the proprietary land of the petitioners in the year 2002 was RFCTLARR Act.

9) Since the acquisition proceedings in this case have already been completed and final award passed under the Act of 1990, which, as held hereinabove, was repealed on the date the impugned notification was issued, as such, it would be difficult, rather inadvisable at this stage, to set the entire acquisition process at naught. Furthermore, most of the villagers, whose land has been acquired in Village Mamath, have already taken their compensation and the construction of Ring Road is in progress. Taking que from the judgment passed by the Division Bench of this Court in the case of Land Owners of Village Suthsoo and others vs. State of J&K and others (supra), the relief claimed in this petition is modified and the respondents are directed to enhance the compensation payable to the petitioners under the award by 20%. This would meet the ends of justice and would be a sort of penalty to the respondents for not following the correct provisions of law.

10) The concerned Collector shall issue the amended award and disburse the balance compensation, if any, payable to the petitioners, within a period of two months from today. It is, however, made clear that the petitioners or any of them, who is/are aggrieved of the determination of compensation as has been notified through final award, shall be free to seek reference under the Act of 1990. The reference, however, shall be limited to the seeking of enhancement of the basic compensation and the additional compensation to the extent of 20%, as directed by this Court, shall not be part of any dispute or debate before any forum subordinate to this Court.

11) The petition is disposed of in the above terms.