GAZANFAR ALI v. STATE OF J&K & ORS.

from Srinagar Municipal Corporation (SMC). The building permission was granted in favour of the petitioner vide order No.2298 of 2017 dated 30.03.2017 issued by SMC whereunder he was permitted to raise construction of a school building with compound walling on the leased-out land. 4) It is case of the petitioner that when he started raising construction of the school building, respondent No.4 issued notification under Section 4(1) of the J&K Land Acquisition Act, which is impugned herein, whereby objections were invited with regard to acquisition of the land in question and in the notification, the purpose of acquisition was stated as construction of Basic Science College of Excellence as Constituent College of University of Kashmir. The petitioner is stated to have filed his objections before respondent No.4 whereby it was conveyed to the said respondent that the land in question has been leased out in favour of the petitioner for a period of 55 years; he has raised construction of a school on the basis of a permission granted by SMC and that that school is running on the said land.

It was also conveyed by the petitioner to respondent No.4 that University of Kashmir is already in possession of 300 kanals of land on which they can easily setup the college. OWP No.882/2017 5) While the objections were yet to be considered by respondent No.4, respondent No.7 addressed communication dated 06.06.2017 to respondent No.8 directing him to restrain the petitioner from raising the construction on the land in question. This prompted the petitioner to approach this Court by way of instant Writ petition. 6) The petitioner has challenged the acquisition proceedings including the impugned notification on the grounds that respondent No.4 is not the competent authority to issue the impugned notification as the said Authority does not fall within the definition of ‘Collector’ as contained in the J&K Land Acquisition Act read with J&K Land Revenue Act. It has been further contended that the land in question is an evacuee property and, as such, the same cannot be acquired.

7) The petitioner has further challenged the acquisition proceedings on the ground that the impugned notification has not been published in the manner as provided under Section 4 of the J&K Land Acquisition Act. According to the petitioner, the action of the respondents in initiating the process of acquisition of his land is mala fide, inasmuch as the indenting department i.e. University of OWP No.882/2017 Kashmir, is already in possession of 300 kanals of land and that there is more Custodian land available in the vicinity of the University Campus which can be utilized for setting up of the college. It has been further contended that with the coming into force of J&K Re-organization Act, 2019 and consequent extension of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as “Act of 2013”) to the Union Territory of Jammu and Kashmir, a fresh process of acquisition is to be initiated in terms of the said Act because no award has been passed by the Collector pursuant to the impugned notification.

8) The writ petition has been contested by the intending department i.e. University of Kashmir as also by the Custodian Department and the Collector by filing separate replies. 9) Respondent No.9-University of Kashmir, has in its reply, submitted that the impugned notification has been issued by a competent authority, inasmuch as the powers of Collector have been conferred upon the said Authority by the Government. It has been further submitted that there is no prohibition in acquisition of evacuee land either in the provisions of the J&K State Evacuee (Administration OWP No.882/2017 of Property) Act or in the J&K Land Acquisition Act. Respondent No.9 has further submitted University has set up an Engineering College called ‘Institute of Technology’, boys hostels and many other departments of the University on the land, the reference whereof has been made by the petitioner in his writ petition.

It has been submitted that new disciplines are required to be set up in the University campus and the College is also proposed to be set up for which more land is required by the University. It has been further submitted that the land, which is subject matter of the impugned notification, is adjacent to the University premises and by its inclusion, a single integrated chunk of land would be available to the University for various public purposes. 10) Respondent No.3-Deputy Commissioner, Srinagar, has filed reply to the writ petition on behalf of respondents No.1 to 4 and 7, in which it has been submitted that on the basis of the indent received from the University of Kashmir, the notification for acquisition of land in question was issued by the Collector. It has been submitted that the Assistant Commissioner, Revenue, Srinagar, has been vested with the powers of a Collector and, as such, he is competent to issue the impugned notification.

It has been further submitted that the object OWP No.882/2017 behind the acquisition is public purpose and, as such, the same cannot be defeated by individual interest of the petitioner. According to the said respondents, there is no infirmity in the acquisition proceedings. 11) In their reply, respondents No.5 and 6 have admitted that the land in question has been leased out to the petitioner and on the basis of the No Objection Certificate issued by them and the building permission granted by SMC, the petitioner has started construction on the leased-out land. It has been submitted that upon receipt of requisition from the University of Kashmir for the purpose of acquisition of land, a factual report was submitted to the Collector Land Acquisition, whereafter the said Authority issued the impugned notification. 12) I have heard learned counsel for parties and perused the record of the case including the record relating to acquisition proceedings.

13) The admitted facts that emerge from the record of the case are that the petitioner has been granted lease in respect of the land, which is subject matter of the acquisition, by respondent No.5 and the said lease is still subsisting. It also appears that the petitioner has raised construction of a school building on the basis of building OWP No.882/2017 permission granted by SMC. In the meanwhile, respondent No.9, the University of Kashmir, made a requisition before the Collector Land Acquisition and Custodian General for acquiring the land for the purpose of setting up of a College near the University Campus. On the basis of said indent, respondent No.4-Assistant Commissioner, issued the impugned notification under Section 4(1) of the J&K Land Acquisition Act inviting objections. 14) The first ground of challenge urged by learned counsel for the petitioner to the impugned notification is that respondent No.4 was not competent to issue the said notification as the said Authority does not fall within the definition of ‘Collector’. 15) In order to test the merits of the aforesaid argument advanced by learned counsel for the petitioner, it would be apt to refer to clause (d) of Section 3 of the J&K State Land Acquisition Act, which defines the expression ‘Collector’. As per this provision, the ‘Collector’ means the ‘Collector’ as defined in the Land Revenue Act, 1996. 16) Section 6 of the J&K Land Revenue Act describes the classes of Revenue Officers. It reads as under:

Classes of Revenue Officers. — (1) There shall be the following classes of Revenue officers, namely: — OWP No.882/2017 (a) the Financial Commissioner; (b) the Divisional Commissioner; (c) the Collector; (d) the Assistant Collector of the first class; (e) the Assistant Collector of the second class. (2) The Deputy Commissioner of a District shall be the Collector thereof; and an Assistant Commissioner and a Tehsildar shall be an Assistant Collector of the first class and a Naib-Tehsildar an Assistant Collector of the second class. (3) Unless the Government issues a notification to the contrary, Financial jurisdiction of Commissioner shall extend to the whole of the State and of Divisional Commissioners to the Provinces and of Collectors and Assistant Collectors to the Districts and Tehsils respectively in which they are employed. (4) The Government may by notification confer on any person— (a) all or any of the powers of a Financial Commissioner, Divisional Commissioner or Collector under this Act, or (b) all or any of the powers with which an Assistant invested thereunder; and may by notification withdraw any powers so conferred.

29.06.2017. 30) It has also been contended that subject matter of the acquisition is evacuee land and there is no provision for acquisition of such type of land either in the J&K State Land Acquisition Act or in the J&K State Evacuee (Administration of Property) Act. It is true that there is no specific provision relating to acquisition of evacuee land either in the J&K State Land Acquisition or in the J&K State Evacuee (Administration of Property) Act, but it is also a fact that there is no prohibition in either of the two statutes for acquisition of evacuee land. The provisions contained in the J&K State Evacuee (Administration of Property) Act do not oust applicability of the J&K State Land Acquisition Act to the evacuee properties. OWP No.882/2017 31) In the above context, Section 3 of the J&K State Evacuee (Administration of Property) Act needs to be noticed, which reads as under:

Act to override other laws. (1) The provisions of this Act and of the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any such law. (2) For the removal of doubts, it is hereby declared that nothing in any other law controlling the rents of, or evictions from, any property shall apply or be deemed ever to have applied to evacuee property. From a perusal of the aforesaid provision, it appears the provisions of the J&K State Evacuee (Administration of Property) Act have an overriding effect notwithstanding anything inconsistent therewith contained in any other law, meaning thereby that if there is anything inconsistent with the provisions of the J&K State Evacuee (Administration of Property) Act, in any other statute, the same has to give way to the provisions contained in the aforesaid Act.

… Undoubtedly, the evacuee properties vested in the Custodian for the purposes of distribution as per the provisions of the various Acts. However, it is to be noted that under the various Acts in lieu of properties, compensation in terms of money can also be paid. Thus, merely because the properties vest in the Custodian as evacuee properties does not mean that the same cannot be acquired for some other public purpose. …

… It would be open to the Government to acquire evacuee property and give to the Custodian compensation for such acquisition. Section 4 Notification dated 23-1-1965 not having excluded evacuee properties the respondents can get no benefit from the fact that in the 1959 Notification evacuee properties had been excluded.” 34) After noticing the aforesaid observations, the Supreme Court laid down following three propositions of law:

45.1. (i) At the time of acquisition of evacuee property under Section 12 of the 1954 Act if such property has OWP No.882/2017 interest of a private person, the interest of private person can be acquired under the LA Act even though the land is owned by the Government. 45.2. (ii) The properties that vest in the Custodian as evacuee properties can be acquired for some other public purpose. 45.3. (iii) When a challenge is laid to the acquisition of the land at a belated stage then if the court is inclined to allow such a belated challenge, it must first satisfy itself that the person challenging acquisition has title to the land. 35) From the foregoing analysis of law on the subject, it is clear that an evacuee property vested in the Custodian can be acquired for some other purpose. The contention of learned counsel for the petitioner is, therefore, without any merit. 36) Lastly, it has been argued by learned counsel for the petitioner that with the application of the Act of 2013 to the Union Territory of Jammu and Kashmir and the acquisition proceedings having not culminated in passing of an award until the date of application of the Act of 2013, Section 24 of the said Act will come into play and fresh acquisition proceedings under the said Act will have to be initiated by the respondents if they intend to acquire the land in question.

37) The aforesaid contention raised by learned counsel for the petitioner appears to be without any basis for the reason that this Court vide interim order dated 29.06.2017 OWP No.882/2017 has stayed the operation of the impugned notification, as a result of which, the further proceedings relating to land acquisition came to a standstill. In such a case, the land acquisition proceedings initiated under the State Land Acquisition Act would not come to an end because it is due to the intervention of this Court that the respondents were prevented from taking the proceedings to their logical conclusion. In this regard it would be apt to refer to the ratio laid down by the Supreme Court in the case of Indore Development Authority vs. Manoharlal and Ors. (2020) 8 SCC 129. In the said case, the Supreme Court, while dealing with a similar issue, has held as under: (i) (ii) (iii) (iv) (v) (vi) Lapse of acquisition takes place only in case of default by the authorities acquiring the land, not caused by any other reason or order of the court; If it was not possible for the acquiring authorities, for any reason not attributable to them or the Government, to take requisite steps, the period has to be excluded; In case the authorities are prevented by the court’s order, obviously, as per the interpretation of the provisions such period has to be excluded; The intent of the Act, 2013 is not to benefit landowners only.

The provisions of Section 24 by itself do not intend to confer benefits on litigating parties as such, while as per Section 114 of the Act, 2013 and Section 6 of the General Clauses Act the case has to be litigated as per the provisions of the Act, 1894; It is not the intendment of the Act, 2013 that those who have assailed the acquisition process should get benefits of higher compensation as contemplated under Section 24, It is not intended by the provisions that in case, the persons, who have litigated and have obtained OWP No.882/2017 (vii) interim orders from the Civil Courts by filing suits or from the High Court under Article 226 of the Constitution should have the benefits of the provisions of the Act, 2013 except to the extent specifically provided under the Act, 2013; In cases where some landowners have chosen to take recourse to litigation and have obtained interim orders restraining taking of possession or orders of status quo, as a matter of practical reality it is not possible for the authorities or the Government to take possession or to make payment of compensation to the landowners.

In several instances, such interim orders also have impeded the making of an award; (viii) The litigation initiated by the landowners has to be decided on its own merits and the benefits of Section 24(2) should not be available to the litigants in a straight jacket manner. In case there is no interim order, they can get the benefits they are entitled to, not otherwise. Delays and dilatory tactics and sometimes wholly frivolous pleas cannot result in benefitting the landowners under sub-section (1) of Section 24 of the Act, 2013; (ix) (x) Any type of order passed by this Court would inhibit action on the part of the authorities to proceed further, when a challenge to acquisition is pending; Interim order of stay granted in one of the matters of the landowners would cause a complete restraint on the authorities to proceed declaration; further (xi) When the authorities are disabled from performing duties due to impossibility, it would be a sufficient excuse for them to save them from rigour of provisions of Section 24.

A litigant may have a good or a bad cause, be right or wrong. But he cannot be permitted to take advantage of a situation created by him by way of an interim order passed in his favour by the Court at his instance. Although provision of Section 24 does not discriminate between landowners, who are litigants or non-litigants and treat them differently with respect to the same acquisition, it is necessary to view all of them from the stand point of the intention of the Parliament. Otherwise, anomalous results may occur and provisions may become discriminatory in itself; (xii) The law does not expect the performance of the impossible; OWP No.882/2017 (xiii) An act of the court shall prejudice no man; (xiv) When there is a disability to perform a part of the law, such a charge has to be excused. When performance of the formalities prescribed by a statute is rendered impossible by circumstances over which the persons concerned have no control, it has to be taken as a valid excuse; (xv) The Court can under its inherent jurisdiction ex debito justitiae has a duty to mitigate the damage suffered by the defendants by the act of the Court; (xvi) No person can suffer from the act of Court and an unfair advantage of the interim order must be neutralised; (xvii) No party can be permitted to take shelter under the cover of Court’s order to put the other party in a disadvantageous position; included (xviii) If one has enjoyed under the Court’s cover, that period cannot be authorities to take requisite steps under Section 24 as the State authorities would have acted and passed an award determining compensation but for the Court’s order. inaction of towards 38) From a perusal of the aforesaid ratio laid down by the Supreme Court, it is clear that once the authorities are disabled from taking acquisition to their logical conclusion by the stay order passed by a Court at the instance of a litigant, such a litigant cannot be permitted to take advantage of a situation which is his own creation and seek compensation in terms of the Act of 2013.

39) Even otherwise, the Supreme Court in the case of Bharat Petroleum Corporation Ltd. (BPCL) & Ors. vs. Nisar Ahmad Ganai & Ors., 2022 LiveLaw (SC) 837, has held that with respect to the lands acquired under the provisions of the J&K Land Acquisition act, Section 24 (1) OWP No.882/2017 (a) of the Act of 2013 cannot be made applicable. The contention of the petitioner in this regard deserves to be rejected. 40) For the foregoing reasons, I do not find any merit in this petition. The same is dismissed accordingly 41) The record be returned to the learned counsel for the respondents. SRINAGAR 02.12.2023 “Bhat Altaf, PS” Whether the order is speaking: Whether the order is reportable: (Sanjay Dhar) Judge Yes/No Yes/No OWP No.882/2017