Judiciary intervenes to the rescue of land owners in Banihal but why aren’t central laws standing on their own.
THE Jammu & Kashmir High Court has come to the rescue of a land owner in Banihal area of Ramban district by quashing an 11-year-old notification issued under repealed J&K Land Acquisition Act 1934 (samvat 1990). The division bench of Chief Justice Pankaj Mittal and Justice Moksha Kazmi in an order issued on April 25th 2022 said that notifications issued under Sections 4 and 6 of the repealed act have lost all efficacy and have been rendered meaningless. The division bench order read:
“Section 11-B of the (repealed) JK Land Acquisition Act specifically provides that the Collector shall make an award under Section 11 of the aforesaid Act within a period of two years from the date of publication of the declaration and in case no such award is made within the period prescribed, the entire proceedings for the acquisition of the land shall lapsed”
The order further stated:
“It may be pertinent to mention here that in respect of the above acquisition, the urgency provisions under Section 17 of the Act were not invoked and the enquiry under Section 5-A of the Act was not dispensed with. It is not even the case of the respondents that the land acquisition proceedings had remained stayed by any order of the court. 11. In view of the aforesaid facts and circumstances, it is evident that no award has been made under Section 11 of the Act within a period of two years from the date of the declaration issued under Section 6 of the Act. There is no dispute to the date of declaration which happens to be 29.06.2011 and, therefore, the period of two years has clearly expired but with no award. Accordingly, we are of the opinion that the aforesaid land acquisition proceedings have lapsed”
Background of the Case
Division Bench of High Court comprising Chief Justice Pankaj Mithal and Justice Moksha Khajuria Kazmi quashed the notifications issued by Collector Land Acquisition Ramban for acquisition of land for construction of new Bus-Stand at Banihal located in village Devgole and Krawah villages.
The land owners Ghulam Mohiudeen and others through their counsel Advocate Irfan Khan challenged the notifications issued by Collector land Acquisition as the same had lapsed due to efflux of time. This rendered the entire land acquisition proceedings invalid. It was submitted before the High Court that declaration under Section 6 of erstwhile J&K Land Acquisition Act 1934 (samvat 1990) was issued on 29-06-2011 for land measuring 13 Kanals 4 Marlas situated at village Devgole and Karwah. Under section 11 -B of the repealed act, the final award had to be made within a period of 2 years but in this case the said award was not made even after 11 years.
After hearing Advocate Irfan Khan for petitioners and Senior Additional Advocate General S S Nanda for respondents, the High Court Division Bench observed that the proceedings initiated under repealed act have lapsed and the same can’t be concluded after elapse of the requisite time period.
In the recent past, the High Court Division Bench gave similar orders in case of land acquisition by J&K Housing Board at Baramulla Kanili Bagh and Islamic university of Sciences and Technology (IUST) Awantipora. The awards issued under repealed act were declared null and void and HC division bench headed by Chief Justice said that fresh notification be issued under the existing law that is Right to Fair Compensation Act (RFCTLARR Act 2013) wherein there is provision of fair compensation which is estimated as per the market value of land and property with 100% solatium (jabirana). Under the repealed law (J&K LA Act1934), the rate was estimated as per circle rate/stamp duty rate with only 15% solatium.
Curious Case of Srinagar Ring Road
Now, the affected land owners of Srinagar Ring Road in Budgam are also demanding the same treatment. In their case too, the declaration issued by Collector Land Acquisition Budgam under section 6 of repealed act in August 2017 got lapsed in July 2019.
The land owners have moved multiple petitions before J&K High Court and a status-quo was asked to be maintained by the court last year. However, this was violated by the district administration Budgam by misinterpreting a recent HC judgement of J&K High Court wherein Justice M A Magrey had mentioned that the construction work on Srinagar Ring Road be taken up. This order was to be implemented in those areas where affected landowners had taken compensation. Unfortunately, JCBs owned by contractor M/S NKC Projects Pvt Ltd, NHAI and local administration destroyed standing crops and fruits trees in such areas where farmers are yet to get compensation of their land. Even the mustard crop was destroyed in such areas where land wasn’t even notified (Mohammad Ramzan Bhat R/O Batpora Chadoora).
In the case of Ali Mohammad Akhoon v/s Govt of J&K, the Collector Land Acquisition Budgam through a written reply supported by an affidavit, disputed the communication made by the District Collector/Deputy Commissioner Budgam addressed to the Divisional Commissioner Kashmir in May 2020.
The then Deputy Commissioner Budgam Tariq Hussain Ganai prepared a village wise position of the land acquisition for Semi Ring Road in Budgam and conveyed to the Divisional Commissioner that proceedings initiated under the repealed J&K Land Acquisition Act 1934 (samvat 1990) had lapsed due to efflux of time under section 11-B of the act. The DC had recommended initiation of fresh proceedings under the Right to Fair Compensation Act 2013 which was extended to J&K after the abrogation of Article 370.
The Deputy Commissioner of a District is supposed to be a responsible officer and as a District Collector he is supposed to be conversant with all the land acquisition matters in the district. The then Deputy Commissioner Budgam Tariq Hussain Ganai who is signatory to the communication No: DCB/LAS/20/300-10 Dated 18th May 2020 is a senior officer having served as Deputy Commissioner in Ganderbal and Ramban before being posted as DC Budgam. If he has given a true picture about the land acquisition matters of his district, the Collector Land Acquisition Budgam in his written response told the High Court that former Deputy Commissioner Budgam had misrepresented and misinterpreted the facts. The officers had provided a complete list of the villages where land acquisition proceedings had lapsed due to efflux of time and the same communication was made the main annexure to the petition of Abdul Salam Bhat v/s JK Govt. The DC’s letter and annexures sent to Divisional Commissioner on May 18th 2020 was supported by documentary evidence in respect of notification under section 4 followed by declaration under section 6 and 7 of the Repealed Land Acquisition Act. He had invited the attention of the Divisional Commissioner Kashmir to express provision of section 11-B of the repealed act, whereunder, the proceedings were to be deemed as lapsed in the event of failure of pronouncement of an award. The District Collector has categorically admitted that no award within the stipulated period of 2 years from the date of declaration of section 6 has been pronounced. His opinion was based on legal data. By no standards can his legal and factual opinion be termed as misinterpretation and misrepresentation of facts.
Central Laws in Limbo
Several commitments were made to the people of J&K after the abrogation of Article 370 on the floor of Parliament. The Prime Minister, Home Minister and other leaders of the Bharatiya Janata Party said that the extension of the central laws to J&K would confer upon its people benefits, especially under the flagship programmes. Unfortunately, the practice of depriving people of their rights persists in J&K.
Not making Right to Fair Compensation Act (RFCTLARR Act 2013) applicable on the ground makes it clear that bureaucracy in J&K doesn’t want to give benefits of central laws to the people of J&K. As the High Court has come up with a fresh direction in Banihal land acquisition case, it seems that judiciary is the only hope for aggrieved land owners of J&K whose land and property is being forcibly acquired by Government.