Abdul Rashid v. State of J&K & Ors.

Through: Mr. Amit Gupta, AAG for R-1 to 5 Ms. Monika Kohli, Sr. AAG for R-6 to 9 Coram: HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE HON’BLE MR. JUSTICE PUNEET GUPTA, JUDGE ORDER The short grievance projected by the petitioner in this petition is that he is owner of land measuring 5 kanal falling under Khasra Nos. 1013, 1013/1 and 1013/2 situated at village Dodasan Bala Tehsil Thannamndi District Rajouri [“the subject land”]. The aforesaid land was taken possession of by the department of Health for construction of Primary Health Centre in the year 2011 pursuant to an agreement executed between the petitioner and the Chief Medical Officer, Rajouri on 1st November, 2011. As per the terms of the agreement, the petitioner was to be paid compensation, as assessed by the Collector Land Acquisition, Rajouri. It is submitted that the land was immediately taken over and the Primary Health Centre was constructed but no steps were taken by the respondents to get the compensation assessed by the Collector, Land Acquisition, Rajouri. The petitioner having failed to persuade the respondents to pay compensation for the land acquired, filed this petition in the year 2019 claiming, inter alia, a direction to the respondents to pay compensation along with interest for the land acquired by the department of Health for construction of Primary Health Centre, Dodasan Bala. 2 WP(C) No. 3002/2019 On being put on notice, respondent Nos.1 to 5 and respondent Nos. 6 and 7 have filed separate set of objections. In the objections filed by respondent Nos. 1 to 5 i.e. the Department of Health, the stand taken by the respondents is that the Chief Medical Officer, Rajouri vide its communication No. CMO/P&S/R/2012-12/7581-86 dated 13.03.2013 intimated the Collector, Land Acquisition, Rajouri that the funds under District Sector Plan Schemes were available with the department and requested for taking further necessary action for acquisition of the subject land that had come under the construction of AD building Dodasan Bala. The department of health has also placed reliance upon a communication of the Collector, Land Acquisition, Rajouri bearing No.AC/LA/872-74 dated 23.06.2016, a perusal whereof indicates that the process initiated by the Collector, Land Acquisition for acquiring the subject land was withdrawn in view of issuance of SRO 25 dated 28th January, 2016 whereby SRO 235 of 2009 dated 11.08.2009 was rescinded. The communication further indicates that a decision was taken to initiate fresh acquisition proceedings. It is, thus, submitted by the department of Health that fresh process for acquiring the subject land in accordance with the provisions of Land Acquisition Act was not initiated by the Collector, Land Acquisition for the reasons best known to it. Respondent Nos. 5 and 6 in their objections have submitted that on the basis of requisition projected by the Chief Medical Officer, Rajouri vide his communication dated 13.03.20213 and on receipt of authenticated revenue papers, Collector, Land Acquisition, Rajouri issued notification under Section 4(1) of the J&K Land Acquisition Act, Svt. 1990 (hereinafter referred to as “the Act”) on 19.03.2013 for acquiring land measuring 5 kanal comprising Khasra No.1013/2 situated in village Dodasan Bala for public purpose i.e. 3 WP(C) No. 3002/2019 construction of AD Building by the Health Department. The process was proceeded and, accordingly, declaration under Section 6 of the Act and directive under Section 7 of the Act was also issued. However, the process of acquisition could not be taken to logical end in view of rescinding/revoking of SRO 235 and 236 dated 11.08.2009. After withdrawal of the process, fresh communication dated 31.05.2021 was addressed to the indenting department for placing fresh indent with specific observation to clarify that whether the land was still required by them or not. Mr. Amit Gupta, learned AAG appearing for Health Department submits that the subject land under acquisition has already been utilized by constructing AD Building by the Department and, therefore, there is no question of seeking opinion from the indenting department as to whether the land is still required or not. Having heard learned counsel for the parties and perused the material on record, we are of the considered opinion that in view of the admitted position that the land measuring 5 kanals falling in Khasra No.1013/2 belonging to the petitioner has been taken possession of and used by the department of health for construction of AD Hospital at Dodasan Bala, there is no reason or justification to deny compensation to the petitioner. It is true that pursuant to the indent issued by the department of health, Collector Land Acquisition, Rajouri had initiated the process for acquiring the subject land and, accordingly, issued Notifications under Section 4, 6 and 7 but the said process could not be taken to logical end because of certain intervening circumstances i.e. rescinding of SRO 235 and 236 dated 11.8.2009. Be that as it may, the two departments i.e. the Department of Health and the Collector, Land Acquisition cannot remain busy in exchanging 4 WP(C) No. 3002/2019 communications at the cost of the petitioner, who has been deprived of his 5 kanals of land since the year 2011. Having regard to the facts and circumstances of the case and with a view to do complete justice, this petition is disposed of by providing that the department of health/Chief Medical Officer, Rajouri or any competent officer shall place fresh indent with the Collector, Land Acquisition, Rajouri within a period of four weeks and on receipt of the indent and completion of requisite formalities, fresh process for acquisition of land, as per the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, shall be initiated and proceedings completed within the time stipulated under the Act of 2013.The Collector, Land Acquisition, Rajouri while considering the claim of the petitioner for compensation shall also take note of the fact that the subject land is in occupation of the department of health since 2011 without payment of any compensation. (Puneet Gupta) (Sanjeev Kumar) Judge JAMMU: 22.02.2023 Vinod, Pvt. Secy. Judge Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No