Gazanfar Ali v. Union Territory of Jammu & Kashmir & Ors.

Judgment

1. Union Territory of Jammu & Kashmir through Commissioner Secretary to Government, Revenue Department, Civil Secretariat, Srinagar/Jammu

2. Divisional Commissioner, Kashmir, Srinagar

3. Deputy Commissioner/District Collector, Srinagar

4. Collector/Assistant Commissioner (Revenue), Srinagar

5. Custodian General, J&K, Srinagar

6. Custodian, Evacuee Property Department, Kmr. Sgr.

7. Tehsildar (North), Srinagar

8. Station House Officer (SHO), Police Station Zakoora,Sgr.

University of Kashmir through its Registrar, Srinagar …RESPONDENTS Through:- Mr. Mohsin Qadri, Sr. AAG with Ms. Maha Majeed, Assisting counsel Mr. Syed Faisal Qadri, Sr. Advocate with Mr. Sikand er Hayat, Advocate CORAM: HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE HON’BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE 2 JUDGMENT Per: Sanjeev Kumar-J

1. This intra-court appeal filed by the appellant arises out of an order and judgment dated 02.12.2023 passed by the learned Single Judge of this Court [“the Writ Court”] in OWP no. 882/2017 titled Gazanfar Ali v. State of J&K and others, whereby the writ petition filed by the appellant herein challenging the notification dated 25.05.2017 issued under Section 4(1) of the Jammu and Kashmir Land Acquisition Act [“the Act”] has been dismissed.

2. Briefly stating the facts leading to the filing of this appeal are that a piece of land measuring 15 Kanals 13 Marlas in Khasra no. 1355/919 and 5 Kanals 8 Marlas in Khasra No. 1356/9420 situate at Zakura in Srinagar [“the subject land”] was sought to be acquired for respondent no. 9 for construction of Basic Science College of Excellence. On the request of respondent no. 9, respondent no. 4 issued a notification under Section 4(1) of the Act for acquisition of the subject land.

3. Feeling aggrieved, the appellant filed OWP no. 882/2017 to throw challenge to the said notification. The challenge to the notification by the appellant was premised on the ground that the subject land was an evacue property leased out to the appellant by respondent no. 5, the Custodian General, Jammu and Kashmir, Srinagar. The lease was to subsist for a period of fiftyfive (55) years. The appellant, after seeking permission from respondent no. 5 for raising the construction of the School and after obtaining building permission from the Srinagar Municipal Corporation, started raising the construction of the school building. While the construction was going on, the notification impugned in the writ petition came to be issued by respondent no. 4. The impugned notification issued under Section 4(1) of the Act was called in question by the appellant before the writ court on the following grounds:- 3 (i) (ii) (iii) (iv) (v) that respondent no. 4 who has issued the impugned notification is only an Assistant Commissioner (Revenue) and, therefore, not “the Collector” as defined under the Act; that the subject land is an evacue property and, therefore, cannot be made subject matter of acquisition under the Act; that the impugned notification has not been published in the manner prescribed under Section 4 of the Act and, therefore all proceedings taken for initiating the process of acquisition are vitiated; that the impugned notification is actuated by malafide consideration, in that, the Indenting Department i.e. the University of 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 a College; that with the coming into force of the Jammu and Kashmir Re-organisation Act, 2019, an extension of right to fair compensation and land acquisition, transparency rehabilitation and Re-settlement Act, 2013 [“the Act of 2013”] to the Union Territory of J&K, a fresh process of acquisition is required to be initiated under the new Act.

4. The writ petition was contested by both i.e. the Indenting Department i.e., the University of Kashmir as also the other respondents including the Collector, by filing separate objections.

5. The writ court considered the rival contentions in the light of material on record including the record of land acquisition proceedings and came to the conclusion that the writ petition was devoid of any merit and deserved to be dismissed. The writ court considered all the issues raised by the learned counsel on behalf of the appellant. The writ court considered the grounds of challenge and answered the issues raised in the following manner:- (i) that vide SRO 213 dated 16.05.1966, the powers of Collector for the purposes of land acquisition have been vested on all territorial Assistant Commissioners and the said notification has been issued by the Government in exercise of powers under sub-section (4) of Section 6 of the Jammu and Kashmir Land Revenue Act. Similarly, the Government of Jammu and Kashmir has in exercise of its power under sub-section (5-A) of Section 6 of the Jammu 4 and Kashmir Land Revenue Act has issued SRO 461 dated 19.11.1985 conferring powers of the Collector on in as many as 22 Designated Officers which includes Assistant Commissioner (Revenue), Srinagar. The writ court, thus, concluded that respondent no. 4 was vested with the powers of the Collector under the Act to initiate acquisition proceedings and, therefore, the impugned notification issued by respondent no. 4 was within its jurisdiction.