S. No. 137 v. Union Territory of J&K & Ors.

CORAM: HON’BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE O R D E R 20.09.2023

1. Petitioners pray for a direction upon respondents to pay compensation to petitioners for acquiring land in terms of the Central Act, 2013, viz. Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, along with interest and having regard to judgment of the Division Bench of this Court.

2. The case set up by the petitioners in the instant writ petition is that the respondents have acquired land of the petitioners for construction and establishment of “Semi Ring Road‟ by the National Highway Authority of India (for short “NHAI”) from Pampore to Sonawari but they have not being paid the enhanced compensation of 20% which has been granted by the Division Bench of this Court vide judgment dated 28.04.2023 in OWP no.424/2018 titled as Land Owners of Village Suthsoo and others v. State of J&K and others, to the landowners to which they are entitled to under Section 73 of the Act of 2013. According to petitioners, Collector is not doing the needful and is sitting over the representations filed by them, which is violative of constitutional and statutory rights of the petitioners. All State Governments throughout the country cooperate and get such National Highways constructed by acquiring land from the landowners and pay compensation to them as per Central Laws applicable for land acquisition. It is also averred by petitioners that compensation for acquisition of land is being paid throughout the country in terms of Amended Act of 2013. NHAI also took a decision that the land of the landowners of J&K will be acquired for construction and establishment of „Semi Ring Road‟ and the compensation will be paid at same rate by applying the said central Act and in this regard, Local Authorities of State Government were appointed as Collectors under Land Acquisition Act for acquiring the land. The concerned Assistant Commissioners, Revenue, and Additional Deputy Commissioners have been authorized to initiate process for acquiring the land under J&K Land Acquisition Act and thereafter the Collectors have notifications under Section 4 of J&K Land Acquisition Act. Petitioners also maintain that Collectors have seemingly published the said notices in local English papers but no such notification, to the best knowledge of the petitioners, were issued and published nor has Collector concerned adopted the procedure as prescribed in Land Acquisition Act. 90% of the landowners are illiterate having no knowledge of any notification issued by the Collectors because neither the procedure of inviting landowners was adopted nor were any notifications in Kashmiri/Urdu Languages published. Even the landowners have not been asked to file objections against the notification under Section 4 or 6, 7 & 9; hence the proceedings have been initiated in gross violation of the provisions of the said Act and the papers have been prepared by the Collectors concerned without following the mandate of law. It is further stated that petitioners have not been asked to give details of the land owned by them and they have not been given opportunities to project their claims for establishing the claim of compensation as per the market value, however, some of the Collectors have processed the cases for construction of “Ring Road” under the then State Land Acquisition Act and have issued final awards in terms of the same Act when the petitioners were entitled to the compensation under Central Act of 2013. The petitioners belong to different villages and their land stands acquired in terms of the said final awards passed in which the Collector appears has not followed the prescribed procedure nor notices were either served or communicated to the petitioners nor published in newspapers in local language. According to petitioners, it is evident from the notifications and awards issued that none of the notifications has been served nor the procedure of beating of drum has been followed. A copy of the order issued by Commissioner/Secretary to Government, wherein reference of said notification has been given by saying that some interested persons have filed objections and District Collector has stated that such objections will be considered at appropriate time, therefore, the said Commissioner has issued the order on 08.08.2017 wherein it is stated that the Government is satisfied for acquisition of the said land for public purpose under Section 6 and the Collector in compliance of the said order has directed to take action under Section 7 of the said Act. It is being also stated that petitioners have been harassed by the concerned authorities including Revenue Agency and National Highway Authority of India as the possession of the land has been forcibly taken from them and the money, in part, has been deposited, without their consent, in their accounts, however, the National Highway Authority of India which is the basic authority for whom land is to be acquired has consented to pay compensation to the land owners as per Central Acquisition Law which stands enacted by Parliament of India but unfortunately the Collectors who are officers of the Jammu and Kashmir Government categorically refused to make payment of compensation to the landowners as per the Central Law. Petitioners aver that respondents are applying wrong method for taking land of the petitioners, even those laws have also not been followed and, therefore, action of Collectors is illegal, arbitrary and violative of settled principles of law. The Collectors have grossly violated the said Act which has resulted in violation of fundamental rights of the petitioners.

3. Learned senior counsel appearing for petitioners, after reiterating the submissions made in the writ petition, would contend that some land owners have taken higher compensation when they are similarly situated with petitioners and same is impermissible and unconstitutional being violative of Article 14 and 21 of the Constitution. To avoid such arbitrariness, Section 73 has been incorporated in the Act of 2013 which ensures that all the similarly situated landowners get compensation on same rates. However, the respondents are not extending the said benefit to the petitioners in terms of the judgment dated 28.04.2023, which is in gross violation of the constitutional provisions and also Section 73 of the Act.

4. According to learned senior counsel, petitioners have filed a representation before Collector requesting compliance of the requirements of Section 73 and payment of enhanced compensation as granted to other landowners, but the Collector has not taken any step to pay the enhanced compensation to the petitioners although in terms of Section 73 (2) the Collector is duty bound to conduct an inquiry after receiving the representation and pass an award determining the compensation payable to such applicants. He would, thus, finally state that petitioners would feel satisfied in the event respondents are directed to consider and decide the representation of petitioners within fixed time frame.

5. In view of case set up in writ petition and submissions made by learned senior counsel appearing for petitioners, the instant writ petition is disposed of with a direction to respondents to consider and decide the representation claimed to have been made by petitioners within two months from the date copy of this order is served upon respondents.

6. Disposed of as above. (VINOD CHATTERJI KOUL) JUDGE SRINAGAR 20.09.2023 (Qazi Amjad,Secy.)