Finally a relief to land owners

HC says applying JK’s repealed law to pay compensation is invalid
Axed Apple trees in Gudsathoo
Axed Apple trees in GudsathooImage supplied by the author

The land owners, whose land was to be acquired by Islamic University of Science and Technology (IUST), Awantipora, for expansion of its campus, have got a great relief from the division bench of Jammu & Kashmir High Court as the court held that applying J&K’s repealed land acquisition act for payment of compensation (making of awards) was invalid and illegal as central act has already been extended to J&K post article 370 abrogation.

The division bench of Chief Justice Pankaj Mittal and Justice Vinod Chatterji Koul in a detailed order said that as only the notifications to acquire the land were issued by Government under the provisions of J&K Land Acquisition Act 1934 , samvat 1990 in 2017 and then no award were prepared (compensation) under Section 11 of the Act, therefore, the compensation was liable to be determined in accordance with the provisions of the New Act (Right to Fair Compensation Act 2013) as the same became applicable to the UT of J&K with effect from 31.10.2019.

However, as the compensation has been determined by an award dated 20.02.2020 passed under Section 11 of the previous Act without referring or applying any of the provisions of the New Act, the award dated 20.02.2020 is clearly in conflict with Section 24 (1) (a) of the New Act “ reads the High Court order dated 28.10.2021

The section 24 of central act also known as Right to Fair Compensation & Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 (RFCTLARR Act 2013) reads :

“ Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894,— (a) where no award under section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; or (b) where an award under said section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed “

In case of Jammu & Kashmir instead of Land Acquisition Act of 1894, J&K Land Acquisition Act 1934 samvat 1990 was operational until Oct 31st 2019. The 1894 act was applicable throughout India except J & K until 2014. In the case of IUST Awantipora the awards were prepared on 20.02.2020 under the J&K’s repealed land acquisition act and that too at a time when the central land acquisition law (RFCTLARR Act 2013) had already been extended to J&K.

Pertinently the indent for land acquisition was issued by the Registrar, Islamic University of Sciences and Technology Awantipora. Then a notification under Section 4 (1) of JK Land Acquisition Act 1934 samvat 1990 was issued by the Collector land acquisition Pulwama (ACR) on 2nd May 2017 for acquiring 46 Kanals, 12 Marlas and 6 ½ sirsai of land. After this section 6 notification was issued and finally the award was prepared under section 11. Even the section 11-B of J&K land acquisition Act 1934 samvat 1990 clearly says that the awards have to be prepared within 2 years from date of declaration of section 6 notification. If that is not done a fresh notification has to be issued.

Ring Road in Budgam

In case of land acquisition for Srinagar Ring Road in district Budgam where Govt has to acquire around 4800 kanals of land , the land acquisition proceedings in majority of the villages have lapsed due to efflux of time as the awards could not be prepared within 2 years from declaration of section 6 notification by Collector Land Acquisition Budgam. This was even corroborated by Deputy Commissioner Budgam when he sent an official communication No : DCB/LAS/20/300-10 Dated: 18.05.2020 to Divisional Commissioner Kashmir. DC Budgam while giving village wise status has very clearly admitted and disclosed that in case of several villages in Budgam no approval of the award has been received from the competent authority till the date of transmission of said communication. He has also admitted that the land acquisition proceedings in respect of these villages have lapsed. At the end of the communication the Deputy Commissioner Budgam has sought instructions from Div Com Kashmir for initiation of fresh proceedings under the Central Land Acquisition Act in the following terms which reads as :

“Guide if the land acquisition matters of villages detailed at (a) of the communication are to be initiated afresh as per the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013 ”

Invoking General Clauses Act

In case of Srinagar Ring Road and IUST Awantipora land acquisition case the Collectors of Budgam & Pulwama have told High Court that under the provisions of General Clauses Act and J&K Removal of Difficulties Order uthe land owners can’t to seek compensation under central act as the proceeding for land acquisition was taken up under state act. This also has been clarified by the High Court division bench in its order. The court said that the argument that in view of Sub clause (13) of Clause 2 of Removal of Difficulties Orders issued under the J&K Reorganization Act is nothing but repetition of Section 6 of the General Clauses Act. The compensation can’t be determined in accordance with the provisions of the repealed act. The court held that it was completely misplaced and non-acceptable.

The previous/old Act stands repealed in its applicability to the J&K with effect from 31.10.2019 and, as such, its provision cannot be applied thereafter except to the limited extent where award has already been made under the previous /old Act in which condition, the proceedings have been permitted to be continued under the provisions of the same Act “ reads the order

In both the cases, IUST Awantipora and Srinagar Ring Road Budgam, the awards were not prepared when J&K’s land acquisition law was operational. The same were prepared in 2020 which was a legal fraud.

IDA vs Manohar Lal case

The High Court division bench in its order has referred Indore Development Authority (IDA) v/s Manohar Lal ‘s case wherein the Supreme Court has clearly laid down that in view of the provisions of Section 24(1)(a) of the New Act (Right to Fair Compensation Act) in case an award is not made on date of the repeal of the previous/old Act, or the date of the commencement of the New Act, compensation has to be determined under the provisions of the New Act. In IUST and Srinagar Ring Road Budgam cases the awards were made after Oct 31st 2019 and this also makes it clear that entire land acquisition proceedings have to be declared null & void. There are already five petitions pending on Srinagar Ring Road in J&K High Court and the matter is now listed on December 14th 2021. The affected farmers are now hopeful that they would get justice and fresh notification would be issued under central law that entitles the affected people for fair and better compensation plus rehabilitation and resettlement as well. There is no such provision under J&K’s repealed law of Jammu & Kashmir.

Legal fraud done in Rajouri

A legal fraud was committed with poor people of Khadariana and Khah villages of Rajouri where 37 kanals and 14 marlas of land was acquired for a PMGSY road project. On October 18, 2019, the Collector land acquisition Rajouri issued a notification under Section 4 of the repealed J&K Land Acquisition Act 1934. On April 23, 2021 declaration under Section 6 of the J&K Land Acquisition Act was issued, which stated that no objections had been received as against the section 4 notification. I am sure no publicity was made with regard to section 4 notification. The repealed law says that drum beatings have to be done in the villages where land is to be acquired and notification has to be issued in newspapers published in local language. In IUST Awantipora case High Court criticized Collector LA Pulwama for the similar lapses.

The notification issued under section 4 of the repealed J&K Land Acquisition Act was questionable in itself, as the same was issued almost immediately after Article 370 was abrogated. Starting Oct 31st 2019 the Fair Compensation Act would have been made operational in Jammu & Kashmir, bringing to question the government’s hurry to issue a notification under a repealed law that BJP party leaders and the union government of India considered outdated and anti-people. Infact several BJP leaders are unhappy with the Govt officers taking such arbitrary steps.

Conclusion

Govt officers need to harbour sincere intentions to help the poor landowners and farmers of J&K. Our land is shrinking day by day and I have been projecting this issue for almost 10 years. I have written a lot on the subject. Govt could easily have waited in Rajouri to issue the notification after October 31, applying Section 11 of the Fair Compensation Act to facilitate the acquisition. In Srinagar Ring Road land acquisition case the DC Budgam has violated all legal statutes and Hon’ble High Court orders. Apple trees have been chopped off and people forced to take meagre compensation under a repealed statute in villages like Gudsathoo and Budibagh. I have brought the matter into notice of Home Minister Amit Shah during his recent visit to Srinagar recently. He assured our delegation that justice would be done and assured to implement all central laws in letter and spirit. We are now meeting Hon’ble LG on this issue. The fresh order from the High Court division bench on Islamic University (IUST) land acquisition at Awantipora has boosted the morale of all those landowners who are denied compensation as per the central act….

Dr Raja Muzaffar Bhat is an Acumen Fellow. He is Founder & Chairman of J&K RTI Movement

Disclaimer: The views and opinions expressed in this article are the personal opinions of the author. The facts, analysis, assumptions and perspective appearing in the article do not reflect the views of GK.

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