Jammu & Kashmir HC in Dawa vs. Union of India [19.12.2013]

IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR

OWP No. 428/2013 and CMP No. 2888/2013

Decided On: 19.12.2013

Dawa

Vs.

Union of India

Hon'ble Judges/Coram: Ali Mohd. Magrey, J.

Counsels:

For Appellant/Petitioner/Plaintiff: F.A. Wani, Advocate

For Respondents/Defendant: R.A. Jan, Sr. Advocate, Anis-ul-Islam and N.H. Shah, Dy. AG

JUDGMENT

Ali Mohd. Magrey, J.

1. In the instant petition, petitioners have prayed for the following reliefs:-

"Writ of mandamus thus commanding upon the respondents to allow the petitioners participation in the process of the acquisition of the land at Spituk-Leh in view of the facts and grounds enumerated herein above."

Brief facts:-

2. Land measuring 606 Kanals situated at Leh was requisitioned by the Assistant defence Estates Officer, Leh for the public purpose namely construction of ALH Base at Spituk Leh. Villagers of Spituk village claimed to be in possession of land both as proprietary owners as also in possession of Shamilat, as such, claimed compensation on account of acquisition of land. Villagers of Spituk village contended that they were dispossessed illegally and unlawfully without following the due process of law and to remedy this wrongful act of the respondents, some of the villagers sought indulgence of the Deputy Commissioner, Leh and respondent No. 6 in the matter and as a result whereof negotiated settlement was arrived at in between the owners/Possessors of the land and the respondent Army Authorities, wherein it is submitted that the villagers will be compensated for the land acquired for construction of ALH Base at Spituk, Leh.

3. Petitioners averred in the writ petition that they came to know about the intentions of respondents to acquire the land in question in the year 2005 and, accordingly, approached before the official respondents apprising them about the fake claims projected by private respondent. Petitioners further submitted that upon discovery of the fact that the private respondents have filed a writ petition in this Court seeking compensation for part of the land, which resulted in disposal of the writ petition in terms of order passed on 15.09.2009 in OWP No. 734/2007. Relevant portion is extracted as under:-

"Be that as it may the only question which is required to be determined is as to how much compensation the petitioners are entitled to. It is appropriate to direct the respondents to complete the process of acquisition and to pay the compensation to the petitioners within a period of three months from the date a copy of this order is served upon the respondents by the petitioners. Order accordingly.

Disposed of along with connected CMP."

4. Feeling aggrieved of the orders passed by the Single Bench of this Court, respondent, Onion of India filed a Letters Patent Appeal, which resulted in disposal vide order dated 16.04.2012 in the following manner"-

"Appellants are aggrieved of the order dated 15.09.2009 passed by the learned Single Judge of this Court in OWP No. 734/2007.

Without entering into the details of the case, we with the consent of learned counsel for both the sides, dispose of this appeal by granting another six months time effective from today to the appellants to complete the entire process of acquisition and make the compensation whatever due to the respondents, strictly in accordance with law.

Disposed of in the aforesaid terms along with connected CMP No. 116/2009."

5. Petitioners submitted that official respondents are completing the acquisition proceedings resulting in payment of compensation to private respondents for Kahchari land for which they are not entitled to, therefore, seek writ of mandamus commanding the respondents to allow the petitioners to participate in the process of acquisition of land at Stipuk, Leh.

6. On notice respondents 8 to 15 have filed objections through their counsel Mr. R.A. Jan, Sr. Advocate. State respondents had granted time to file reply, however, till consideration reply was not filed but Mr. N.H. Shah, learned Dy. AG during the course of arguments submitted that reply on behalf of State respondents is ready and seeks permission to place the same on record, copy whereof furnished to other side. Keeping in view the nature of controversy, it is thought proper to permit Mr. Shah, learned Dy. AG to place on record copy of reply on behalf of State respondents for consideration.

7. Respondents 3 to 7 have in their reply affidavit submitted that land in dispute is indeed village common land, being the grazing/Charagah land, which can't be mutated in favour of any villager selectively. It is further submitted that the compensation of the acquired Kahcharai land is payable to the Spituk Panchayat for the common development of the villagers. Paragraph 1 and 2 of the reply affidavit is extracted as under:-

"1. The land in dispute is indeed village common land, being the grazing/Charagah land, which can't be mutated in favour any villager selectively. The Hon'ble Supreme Court in the case "Jagpal Singh v. State of Punjab" has strictly banned any encroachment/illegal use of village common lands. The Hon'ble Division Bench of Jammu and Kashmir High Court in the case titled "Ghulam Mohammad Bhat & Ors. v. State & Anr." Has held that if Kacharai land is acquired, the compensation is payable to the concerned Panchayat in whose jurisdiction the land falls. The Revenue Officers were therefore, in error/fault while mutating the charagah land in favour of some select group of villagers.

2. The grievance of other villagers petitioners herein, therefore, is genuine. The compensation of the acquired kacharai land is therefore, payable to the Spituk Panchayat for the common development of the villagers."

8. Private respondents have in their objections substantiated their claim on the strength of being owners/possessors of land in question and entitled to compensation as assessed by the State respondents. In the objections it is submitted that the claim of private respondents for payment of compensation was agreed upon by the official respondents in negotiated settlement, wherein it was promised by the representatives of Army Authorities that payment on account of acquisition of land after obtaining no Objection Certificate from the concerned authorities and payment shall be made at an earliest. It is submitted that vide communication dated 28.08.2006 addressed by Under Secretary to Government, Home Department to Respondent No. 5 the requisite no Objection Certificate was granted and conveyed to the concerned Authorities in charge of acquisition proceedings in order to facilitate the completion of the acquisition proceedings without any further delay.

9. It is submitted that despite completion of all the formalities as by law prescribed including the Assessment of the compensation amount as well as the persons found entitled to the payment of compensation so assessed, the compensation amount was illegally and arbitrarily not disbursed to the rightful owners/possessors including the answering respondents, leaving thereby no option with the answering respondents but to approach this Hon'ble Court for the enforcement of constitutionally guaranteed rights. It is submitted that answering respondents invoked the writ jurisdiction of this Hon'ble Court through the medium of writ petition which came to be registered as OWP No. 734/2007. The writ petition of the answering respondents was finally disposed of by this Hon'ble Court vide order dated 15.09.2009 in the following terms:-

"Be that as it may, the only question which is required to be determined is as to how much compensation the petitioners are entitled to. It is appropriate to direct the respondents to complete the process of acquisition and to pay the compensation to the petitioners within a period of three months from the date a copy of this order is served upon the respondents by the petitioners. Ordered accordingly."

10. Aggrieved by the order of this Hon'ble Court dated 15.09.2009 respondents 1 and 2 preferred Letters Patent Appeal before the Hon'ble Division Bench of this Hon'ble Court which came to be registered as LPA No. 61 of 2009 and came to be disposed of vide order dated 16.04.2012 in the following terms:-

"... without entering into the details of the case, we with the consent of learned counsel for both the sides, dispose of this appeal by granting another six months time effective from today to the appellants to complete the entire process of acquisition and make the compensation whatever due to the respondents, strictly in accordance with law.

Disposed of in the aforesaid terms along with connected CMP No. 116/2009."

11. It is submitted that if any cause or claim was available under law to the petitioners, it was open in law for the petitioners to approach in the matter to the competent authorities under the relevant statutes namely the Act of 1968 and/or Jammu and Kashmir Land Acquisition Act, for settlement/adjudication of cause/claim, if any. It is further submitted that records testify to the fact that at no point of time petitioners have approached the competent statutory authority and on the contrary have preferred the present writ petition with an oblique design of defeating and frustrating the legitimate constitutionally guaranteed right of the answering respondents and other persons found by the competent statutory authorities entitled to payment of compensation for the acquisition of land for public purpose aforementioned.

12. Mr. Makroo, learned ASGI submitted that respondent Union of India has made requisition for land measuring 606 Kanals for public purpose namely construction of ALH Base at Spituk Leh and the process stands completed and the respondent union of India shall make the payment on account of compensation to land owners/State to the extent of the land as Kacharai land (State land). Learned counsel further submitted that Union of India has no role in disbursement of compensation and same shall be disbursed to the owners of land in question, however, the matter for disbursement of compensation is pending before the State respondents. Learned counsel submitted that the State respondents have already initiated enquiry regarding manipulation of revenue records by some revenue staff while attesting the mutations in favour of the villagers of Spituk, Leh and the matter is pending enquiry/investigation.

13. Heard learned counsel for the parties and perused the material placed on record. In the context of relief prayed for, the question of payment of compensation on account of acquisition of land for public purpose namely construction of ALH Base at Spituk, Leh cannot be settled in the writ petition, however, keeping in view nature of controversy involved with reference to the pleadings of the parties, it has become necessary to direct State respondents to complete the entire process of acquisition and make the compensation whatever due to the claimants, strictly in accordance with law. Respondents 1 and 2 shall deposit the same with respondent No. 6 within a period of one month from the date State respondents make requisition for such amount. Respondent No. 6 shall deposit the awarded compensation in FDR initially for a period of two months and shall ensure its disbursement to the genuine claimants in accordance with law.

Disposed of along with connected CMP(s).