Srinagar: Observing that landholders cannot be deprived of compensation for their acquired land indefinitely by not making a final award, High Court of J&K and Ladakh on Tuesday imposed exemplary costs of Rs10 lakhs on government for dragging residents of Kanli Bagh,a village in north Kashmir, in unnecessary litigation for decades and for depriving them of their property without adequately compensating them for a long period.
Deciding a writ petition by the villagers, a division bench of Chief Justice Pankaj Mithal and Justice Sanjay Dhar said:
“It is an alarming situation that State is acquiring private land without payment of full compensation. This kind of action or omission on the part of the
State authorities is not acceptable and cannot be allowed to continue for an indefinite period. We deprecate such practice and expect that the State would henceforth take all possible measures to ensure passing of an award within a reasonable time and payment of fair compensation to the persons interested where ever the land is acquired.”
In their plea, through Advocate BA Misri, the residents had contended that by a notification dated 03.02.1978, an area of 220 kanals and 18 marlas was notified by the government for acquisition for the public purpose of establishing a Housing Colony at Sangri in Baramulla.
Subsequently, vide corrigendum in 1991/1992, the area was reduced to 150 kanals and 3 marlas. In respect of the acquisition, a final declaration under Section 6 of the Land Acquisition Act was issued on 27.05.1978.
The Collector, Housing and Urban Development Department, Srinagar prepared a draft award on 15.10.1982, in terms of which a tentative award was issued on 17.03.1998 directing for payment of compensation @ ₹ 5,000/- per kanal with 15 per cent Jabrana (solatium).
On the said amount, simple interest @ 4 per cent was directed to be paid from July 1978 to July 1985/1995 for the period of possession but till date no final award has been pronounced as is mandatory under Section 11 of the Act for completing the acquisition proceedings.
While the court observed that 150 kanals and 3 marlas of the land in the village was notified for acquisition on 03.02.1978 and was finally acquired on 27.05.1978 with the issuance of a declaration under Section 6 of the Act, it said in respect of the acquisition only a tentative award was made on 17.03.1998 but till date no final award has been pronounced with the result the villagers have not been paid the due compensation.
Expressing dismay over the dilatory approach to pay the compensation, the Court noted that right to possess and occupy land property used to be a fundamental right and is still a constitutional right akin to a fundamental right.
“It has been recognized even as a basic human right” it said.
In view of Article 300 A of the Constitution of India, the court said, no person can be deprived of his property otherwise by following the due process of law. “Therefore, the non- payment of the compensation as provided under the statutes amounts to depriving the person of his right to the property”.
The possession of the land, the court said, was taken over by the respondents and, as such, the villagers were divested of the land which came to be vested in the State. “In the ordinary course, in view of Section 11 B of the Act, the land acquisition proceedings would have lapsed for want of final award within two years of the date of declaration, i.e., 27.05.1978 but for the fact that the urgency provisions were invoked and the possession of the land had been taken over on account of which the land had vested in the State”, it said.
“The land vested in the State cannot be divested and, as such, the proceedings for acquisition attains finality and would not lapse and permit de-notification of the acquisition proceedings.
In such a situation, the respondents are left with no option but to make a final award as mandated by Section 11 of the Act.
Observing that the government cannot deprive the land holders from the right to receive fair and reasonable compensation for their acquired land indefinitely by not making a final award, the court said: “ It is for this reason that the court while disposing of the earlier writ petition of the petitioners instead of directing to initiate fresh acquisition proceedings and for payment of compensation @ Rs 5 lakhs to Rs 6 Lakhs per kanal and directed that the respondents would look into the matter and would act in accordance with the mandate of statutes so as to take a final decision within a time bound period”.
The villagers, the court said, as such have been deprived of the proper compensation of the acquired land which is clearly violative of the statutory provisions of the Land Acquisition Act and Article 300 A of the Constitution of India.
Citing a Supreme Court Judgment that a person who has been uprooted may be facing starvation… and therefore the compensation must be determined and paid without loss of time, the bench said: “ It is an alarming situation that State is acquiring private land without payment of full compensation. We deprecate such practice and expect that the State would henceforth take all possible measures to ensure passing of an award within a reasonable time”.
With regard to the prayers made in the plea, the court however said: “The acquisition proceedings in its entirety are not liable to be quashed only for the reason that the final award in terms of the Act has not been passed even though the statutory period for making the award has elapsed when by virtue of Section 17 of the Act, possession of the acquired land has already been taken and the vesting is complete. On this ground not even the tentative award could be quashed. There is no purpose to quash it as it would merge in the final award. There is no justification for directing to take up fresh acquisition proceedings as the acquisition is already over”.
While the court said the prayer regarding initiation of fresh proceedings for acquisition was not accepted by the Court in the earlier round of litigation and is apparently barred on the analogy of principles of constructive res-judicata, it said the relief to grant rent @ Rs10,000/Kanal/year is also not admissible for the reason that under the Act petitioners are only entitled to only monitory compensation and not anything else.
“ The court is left with no option but to make the interim mandamus absolute by issuing a writ in the nature of mandamus commanding the State authorities to frame and pronounce the final award in respect of the above acquisition in accordance with the existing law within a period of three months from the date a copy of this order is produced before the Chief Secretary and we hope that the Chief Secretary under whom all the departments of the State function, would take positive action in the matter and see to it that the award as directed is passed and stiff action is taken against all those officers, who were involved and responsible for not allowing the award to be passed immediately after the tentative award had been prepared and announced”
The villagers, the court said, would be entitled to and paid compensation according to the final award along with all statutory benefits including the interest within a period of one month of the pronouncement of the final award after adjusting the amount which had already been paid to them under the tentative award.