By Nusrat Sidiq
Srinagar: The High Court of Jammu and Kashmir and Ladakh has ruled out that the acquisition of land by the Government authorities under the repealed J&K land Acquistion Act,1990 is not tenable under law.
The court while hearing the plea of residents of village Mamath Budgam who were grieved against the notification issued on 17 March, 2022 by the collector, land acquisition, Ring Road, Budgam for acquiring their land measuring four Kanals, 14 Marlas and 19 sq.ft under the repealed land acquisition act, 1990 held such acquistion is not tenable under law.
It is to be noted that the Act of 1990 came to be repealed and replaced by Right to Fair Compensation and Transparency in Land Acquisition and Resettlement Act, (RFCTLARR)2013 due to coming into operation of the Jammu and Kashmir reorganisation act, 2019.
The petitioners represented by counsel M M Dar raised that in the earlier notification issued on 28 March 2019, the land of the petitioners was not notified and no notification under section 4(1) of the act of 1990 could have been issued in the year 2022 for the reason due to coming into operation of the J&K reorganisation act, 2019, the act of 1990 has been repealed and replaced by RFCTLARR Act.
On behalf of respondents, it was contended by Mohsin Qadiri, senior Additional advocate general that the acquisition proceedings in respect of subject land have been concluded and final award passed.
He also submitted that even if the contention of the petitioners is upheld, it would be difficult to turn the clock back. To justify the issuance of notification under the act of 1990, the AAG submitted that the notification issued in the year 2022, was not a new notification, but was only in the shape of corrigendum to the section 4 (1) notification issued on 28th of March, 2019.
The Bench of Justice Sanjeev Kumar while perusing the record said, “ I am of the considered view that the notification dated 17th of March, 2022 cannot, by any stretch of reasoning, be said to be either extension of section 4 (1) of the act or treated as corrigendum.
Justice Kumar further said that the proprietary land of the petitioners was for the first time notified for acquistion in the year 2020 and consequently the notification was issued on 17 March, 2022 which admittedly came to be notified under the Act of 1990 which stands repealed and not under the RFCTLARR Act.
“Having regard to the admitted position explained above, this court would have been left with no option but to quash the entire acquistion proceedings which have been culminated into issuance of final award.”
However, Justice Kumar noted that the land acquired is meant for construction of a Ring Road, which is very prestigious project of public importance, it would not be in the interests of justice to set the clock back and direct the respondents to issue fresh notification for acquisition of the subject land.
In view of the aforesaid, this petition succeeds to the extent that process of acquisition embarked upon by the respondents by issuing notification under the act of 1990 is found not tenable in law.
“Since the acquisition proceedings in this case have already been completed and final award passed under the act of 1990. It would be difficult, rather inadvisable at this stage to set the entire acquisition process at naught,” Justice Kumar said.
Furthermore, he said most of the villagers whose land has been acquired in the village have already taken their compensation and the construction of Ring Road is in progress.
The court while taking a que from the judgement passed by the division bench in the case of land owners of village Suthsoo and others Vs State of J&K &others, said that the relief claimed in this petition is modified and the respondents are directed to enhance the compensation payable to the petitioners under the award by 20%.
“This would meet the ends of justice and would be a sort of penalty to the respondents for not the correct provisions of law,” Justice Kumar said.
The concerned collector was directed to issue the amended award and disburse the balance compensation, if any, payable to the petitioners, within a period of two months from today.
“It is however, made clear that the petitioners or any of them who is aggrieved of the determination of compensation as has been notified to the final award shall be free to seek reference under the act of 1990,” court said.
Justice Kumar also said that the reference however, shall be limited to the seeking of enhancement of the basic compensation and additional compensation to the extent of 20% as directed by this court shall not be part of any dispute or debate before any forum subordinate to this court